Trout Unlimited v. U.S. Dept. of Agriculture, Civil Action No. 95-1075 (RMU).

• Decision Date: 23 October 1996
• Docket Number: Civil Action No. 95-1075 (RMU).
• Citation: 944 F.Supp. 13
• Parties: TROUT UNLIMITED, Colorado Trout Unlimited and Robert W. Albert, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Dan Glickman, James R. Lyons, United States Forest Service, Jack Ward Thomas, Elizabeth Estill and M.M. Underwood, Defendants.
• Court: U.S. District Court — District of Columbia

Page 13

944 F.Supp. 13

TROUT UNLIMITED, Colorado Trout Unlimited and Robert W. Albert, Plaintiffs, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Dan Glickman, James R. Lyons, United States Forest Service, Jack Ward Thomas, Elizabeth Estill and M.M. Underwood, Defendants.

Civil Action No. 95-1075 (RMU).

United States District Court, District of Columbia.

October 23, 1996.

Michelle L. Bodley, Julia Ann Dahlberg, Christopher H. Buckley, Gibson, Dunn & Crutcher, Washington, D.C., for Plaintiffs.

Lynn A. Johnson, David W. Gehlert, U.S. Department of Justice, Environment & Natural Resources, Denver, CO, for Defendants.

MEMORANDUM OPINION AND ORDER

Granting Defendants' Motion to Transfer

URBINA, District Judge.

This matter comes before the court upon the defendants' motion to transfer this action to the United States District Court for the District of Colorado. After considering the parties' submissions and the relevant law, the court concludes that the defendants' motion to transfer shall be granted because the present action could have been brought in Colorado and the interests of the parties and of potential witnesses, as well as the interests of justice dictate that the action be heard in that forum.

I. Background

Plaintiffs, Trout Unlimited, Colorado Trout Unlimited, and Ronald W. Albert, have brought this civil action seeking to enjoin the operation of the Long Draw Reservoir, a water storage facility located just east of the continental divide in northern Colorado. Trout Unlimited, located in Arlington, Virginia, is a not-for-profit corporation dedicated to conserving, protecting, and restoring North America's cold water fisheries and their watersheds. Colorado Trout Unlimited, located in Englewood, Colorado, is a not-for-profit organization engaged in the conservation, protection, and restoration of Colorado's cold water resources and represents the 5,000 member state council of Trout Unlimited. Ronald W. Albert, a resident of Loveland, Colorado, is a member of Trout Unlimited and Colorado Trout Unlimited and actively derives enjoyment from the affected lands and waters in this action.

Defendants, United States Department of Agriculture, United States Forest Service, Dan Glickman, Jack Ward Thomas, and James Lyons, are located in Washington, D.C. The Department of Agriculture is responsible for the oversight, management, and care of the National Forest System. The United States Forest Service is the agency within the Department of Agriculture responsible for the oversight, management, and care of the National Forest System. Dan Glickman is the Secretary of the Department of Agriculture. Jack Ward Thomas is the Chief of the United States Forest Service. James R. Lyons is the Under Secretary for Natural Resources and Conservation at the Department of Agriculture. Defendants Elizabeth Estill and M.M. Underwood are also located in Colorado. Ms. Estill is the Regional Forester of the Rocky Mountain Region. Mr. Underwood is the Forest Supervisor for the Arapaho and Roosevelt National Forests. These defendants are all sued in their official capacity.

The Long Draw Reservoir was constructed in 1927 on a site originally located within Rocky Mountain National Park. Following legislative action, which made modifications to the boundaries of the park and surrounding forest, the reservoir became located on what is now Roosevelt National Forest. It is owned and operated by the Water Supply and Storage Company.¹ The Reservoir is one of numerous high mountain water storage facilities on various tributaries of the headwaters of the Cache la Poudre River. The Reservoir stores water captured by the Grand River Ditch, which transports water over the Continental Divide at La Poudre Pass, and water from tributaries to La Poudre Pass Creek. The Reservoir is the sole storage facility for water exported by the Grand River Ditch from the Never Summer Range on the western slope of the continental divide. This imported water increases instream flows on La Poudre Pass Creek, as well as on the Cache la Poudre River, and serves as an additional water supply for the northern front range.

In 1994, the Forest Service granted an easement for the continued operation of the reservoir. The easement also provides for augmentation of the flow of the Cache la Poudre River with water from other reservoirs. The easement includes a condition that the reservoir be operated in conjunction with a "Joint Operations Plan" involving other water diversion structures. The 1994 easement is the subject of this action. Plaintiffs have challenged the Forest Service's decision to issue the easement for the operation of Long Draw Dam and Reservoir on public land in the Roosevelt National Forest in Colorado without also requiring minimum continuous releases of water from the dam headgate, otherwise known as bypass flows. Plaintiffs allege that without bypass flows, La Poudre Pass Creek is incapable of supporting a natural fishery. In addition, plaintiffs allege that habitat downstream from this creek will be degraded by the diminished flow of water.

Plaintiffs bring this action pursuant to the Administrative Procedure Act, Section 5 U.S.C. Section 706(2). Plaintiffs allege that the Forest Service's decision to grant the Long Draw Easement violates Section 505 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. (FLPMA). Furthermore, plaintiffs claim that the easement fails to comply with provisions of the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), the Forest and Rangeland Renewable Resources Planning Act, 16 U.S.C. § 1600 et seq. (FRRRPA), the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq., and the Wilderness Act, 16 U.S.C. § 1131 et seq. Plaintiffs also assert that the decision to grant the easement is inconsistent with various regulations promulgated by the Forest Service and with a Forest Plan issued by the Forest Service in 1984. Plaintiffs request that this court remand the easement to the Forest Service with instructions to impose bypass flows as a condition of Water Supply's continued operation of the Reservoir and further to impose an injunction restraining the Forest Service from allowing the operation of Long Draw Dam and Reservoir under the terms of the current easement.

Presently before the court is defendants' motion to transfer this action to the United States District Court for the District of Colorado.²

II. Analysis

The defendants seek to transfer this case to the state of Colorado pursuant to 28 U.S.C. § 1404(a) which provides:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

The moving party bears the burden of establishing that the transfer of this action is proper. Air Line Pilots Ass'n v. Eastern Air Lines, 672 F.Supp. 525, 526 (D.D.C. 1987); Int'l Brotherhood of Painters & Allied Trades Union v. Best Painting & Sandblasting Co., 621 F.Supp. 906, 907 (D.D.C. 1985). Section 1404(a) vests "discretion in the district court to adjudicate motions to transfer according to individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2243, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)).

The threshold question under Section 1404(a) is whether the action might have been brought in Colorado. Van Dusen, 376 U.S. at 613, 84 S.Ct. at 807-08. In a suit based on federal question, as is this one, venue is proper in the "judicial district in which ... a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(e)(2).³ In the case at bar, venue is proper in Colorado under this provision since the plaintiffs' claims arise out of a nucleus of facts that involve property that is entirely located within the state of Colorado.

Specifically, the subject matter of this case concerns Colorado's Arapaho and Roosevelt National Forests, the Long Draw Dam and Reservoir, La Poudre Pass Creek, along with its aquatic habitat, ecosystems and connecting bodies of water, as well as individuals that derive enjoyment from these affected areas of northern Colorado. Consequently, plaintiffs could have brought the instant action in Colorado.

The court's inquiry proceeds to the issue of whether the case should be transferred based on the convenience of the parties, the convenience of the witnesses, and the interests of justice. In ruling on Section 1404(a) motions, courts have not, however, limited their consideration to these three enumerated factors. Courts have considered various other factors, including the private interests of the parties and the public interests of the court, which are protected by the language of Section 1404(a). Jumara v. State Farm Insurance Co., 55 F.3d 873, 879 (3rd Cir.1995); see also Heller Financial, Inc. v. Riverdale Auto Parts, Inc., 713 F.Supp. 1125, 1129 (N.D.Ill.1989). The private interest considerations include: (1) the plaintiff's choice of forum, unless the balance of convenience is strongly in favor of the defendants;⁴ (2) the defendants' choice of forum;⁵ (3) whether the claim arose elsewhere;⁶ (4) the convenience of the parties;⁷ (5) the convenience of the witnesses of the plaintiff and defendant, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora;⁸ and (6) the ease of access to sources of proof.⁹

The public interest considerations include: (1) the transferee's familiarity with the governing laws;¹⁰ (2) the relative congestion of the calendars of the potential transferee and transferor courts;¹¹ and (3) the local interest in deciding local controversies at home.¹² These factors, which the court will address in turn, unequivocally support a transfer to the United States District Court for the ...