Missouri ex rel. Schmitt v. U.S. Dep't of Interior-Bureau of Reclamation, Case No. 2:20-cv-4018-NKL

STATE OF MISSOURI, ex rel. Attorney General Eric S. Schmitt, Plaintiff, v. UNITED STATES DEPARTMENT OF THE INTERIOR-BUREAU OF RECLAMATION, Defendants.

Case No. 2:20-cv-4018-NKL

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

June 8, 2020

ORDER

Defendants Department of the Interior ("Interior"), Bureau of Reclamation ("Reclamation"); U.S. Army Corps of Engineers ("Corps"); David Bernhardt, Secretary of the Interior; Brenda Burman, Commissioner of Reclamation; Michael Black, Regional Director; Arden Freitag, Dakotas Area Manager; Ryan McCarthy, Secretary of the Army; and Brigadier General D. Peter Helmlinger, Northwestern Division Commander (collectively, the "Federal Defendants"), and North Dakota Garrison Diversion Conservancy District ("Garrison District") move pursuant to 28 U.S.C. § 1404(a) to transfer this proceeding to the United States District Court for the District of North Dakota. Docs. 6, 17. For the reasons discussed below, Defendants' motion to transfer is denied.

I. Background

Defendant Garrison District, a North Dakota state agency, Doc. 1 ¶ 20, is constructing the Central North Dakota Water Supply Project (the "CND Project") purportedly to provide a reliable source of water for industrial uses in communities and water districts in multiple counties in central North Dakota. Doc. 6-1 (Excerpts of Environmental Assessment ("EA") at 1-1 - 1-2). Garrison District applied for a forty-year water service contract to obtain water from Reclamation, water that Reclamation claims to be authorized to provide under various federal statutes. Id. at 1-5 - 1-6. Under the proposed contract, Reclamation would supply Garrison District with a total of approximately 14,489 acre-feet per year. Id. at 2-1; see also Doc. 1 (Complaint) ¶ 25. The water supplied under the contract would be part of Reclamation's annual appropriation of 1,212,348 acre-feet of water from the Missouri River recognized in a permit issued to Reclamation by the North Dakota State Water Commission under North Dakota law. Doc. 6-1 at 2-1.

The water for the Project will be diverted from the McClusky Canal, a 73.6-mile canal in central North Dakota owned and operated by Reclamation. Id. at 1-5. The McClusky Canal waters originate from Lake Audubon, which is connected to and comprised of Missouri River water. Id.; Doc. 1 (Complaint) ¶ 23. For the CND Project, Garrison District will construct a water pipeline connecting to the McClusky Canal in Sheridan County, North Dakota. Id. The new pipeline will travel six miles south to a planned pipeline for the Red River Valley Water Project, a separate water project funded and sponsored exclusively by the State of North Dakota. Doc. 6-1 at 1-1; 1-5; 1-9. All of the communities and water districts to be served by the CND Project are within North Dakota and are also within the Missouri River basin. Id. at 1-9.

The initial tenth-of-a-mile segment connecting to the McClusky Canal will traverse federal land managed by Reclamation. Id. at 1-10; 2-1. Garrison District also will need to construct and maintain facilities on Reclamation's land, and arrange for installation of a power line. Id. Garrison District therefore requested from Reclamation a special use permit allowing those activities on the federal land. Id. Finally, Garrison District requested the right to receive preference power from Reclamation to power pumps for the pipeline. Id. at 2-1 - 2-2.

Reclamation commenced the process required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-47, by issuing a "scoping notice" from its Dakotas Area Office in Bismarck, North Dakota. Id. at C-1 - C-3. After receiving comments on the scope of the project, and after issuing two drafts for public comment, Reclamation, through staff in the Dakotas Area Office, issued a final environmental assessment ("EA") evaluating the potential impacts of the proposed action and its final Finding of No Significant Impact ("FONSI"). Doc. 6-2.

Plaintiff alleges that Defendants have not evaluated the impacts upon Missouri's human environment of their usage of Missouri River water in their proposed construction of the CND Project, in violation of NEPA, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-59, 701-06, 1305, 3105, 3344, 4301, 5335, 5372, 7521. Doc. 1, p. 2. Plaintiff claims that the FONSI that Reclamation issued for the CND Project focuses exclusively on impacts in the vicinity of the project and fails to consider the adverse impacts on Missouri that the CND Project, in combination with the Red River Valley Water Supply Project and other foreseeable water diversion projects, would have. Id. (Although the Red River Valley Water Supply Project did not independently require Reclamation's approval, by itself, that project allegedly will divert an additional 145 cubic feet per second, or approximately 105,000 acre-feet per year, from the Missouri River—over seven times the quantity of water that would be diverted by the CND Project. Id. ¶ 35.) Plaintiff alleges that Defendants also failed to consider whether there are viable mitigation measures or alternatives to the CND Project that would prevent the adverse impacts on Missouri.

Approximately 40 percent of Missouri's population is served in some fashion by the Missouri River. Id. ¶ 41. Missouri depends on the Missouri River for municipal and industrial water supply, navigation and transportation requirements, and providing reliable power to itscitizens. Id. ¶ 37. Missouri also manages and maintains numerous state parks and conservation areas in the Missouri River floodplain, many of which contain wetlands and sensitive bottomland ecosystems that are sustained by their connections to the Missouri River. Id. Reduced flow during dry seasons and especially during drought conditions adversely affects Plaintiff's ability to access water for municipal uses, crop transportation, generation of electricity and diminishes Plaintiff's capability to maintain the fragile wetland ecosystems of state parks and conservation areas. Id. ¶ 38.

Plaintiff alleges that, on average, 5.05 million acre-feet ("MAF") per year of Missouri River water, approximately one-third of the annual average volume for the Missouri River at Bismarck, North Dakota, is consumed or evaporated by the time it reaches Garrison Dam from the Missouri River headwaters. Id. ¶ 27. Diverting additional water from the Missouri River prior to the Garrison Dam will, according to Plaintiff, reduce water released from the reservoir system for downstream beneficial use. Id. ¶ 28.

Plaintiff seeks declaratory and injunctive relief.

II. Standard

The Court may "transfer any civil action to any other district or division where it might have been brought," so long as it is "[f]or the convenience of parties and witnesses" and "in the interest of justice . . . ." 28 U.S.C. § 1404(a). Thus, after the appropriateness of venue in the proposed forum is established, the Court must undertake "'individualized, case-by-case consideration of convenience and fairness.'" Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S. Ct. 2239, 2244 (1988) (citation omitted).

"In general, federal courts give considerable deference to a plaintiff's choice of forum and thus the party seeking a transfer under section 1404(a) typically bears the burden of proving that atransfer is warranted." Terra Int'l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 695 (8th Cir. 1997). A "'transfer should not be granted when to do so would merely shift, rather than eliminate, the inconvenience of the parties.'" Halton v. Am. Int'l Grp., Inc., No. 06-0443, 2006 U.S. Dist. LEXIS 92598, at *6 (E.D. Wis. Dec. 18, 2006) (quoting Ellis Corp. v. Team Textile Corp., 574 F. Supp. 170, 173 (N.D. Ill. 1983)).

The decision as to whether to transfer a case is discretionary. Stewart Org., 487 U.S. at 29, 108 S. Ct. at 2244.

III. Discussion

a. Venue

"A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority" may be brought in "any judicial district in which . . . a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(e)(1)(B). Reclamation argues that its decision to approve the CND Project and the creation of the EA occurred in North Dakota, and venue in that District Court therefore would have been proper. Although Plaintiff argues that the CND Project "has implications that reach past the state lines" of North Dakota, it does not deny that this action could have been brought in the District of North Dakota. See, generally, Doc. 26. Thus, there is no dispute that the District of North Dakota would be a proper venue for this proceeding.

b. Convenience

The Court next considers the question of convenience. Among the factors that courts traditionally consider in evaluating convenience are:

(1) the convenience of the parties, (2) the convenience of the witnesses—including the willingness of witnesses to appear, the ability to subpoena witnesses, and the adequacy of deposition testimony, (3) the accessibility to records and documents, (4) the location where the conduct complained of occurred, and (5) the applicability of each forum state's substantive law.

Terra Int'l, 119 F.3d at 696.

i. The Parties Witnesses, and Records

Plaintiff's home state is the more convenient forum for it, while North Dakota is the more convenient forum for Defendants. The factor of the parties' convenience thus does not weigh in favor of either forum.

As for witnesses and documents, Defendants argue that this case will be resolved on the basis of the administrative record, and therefore, the convenience of witnesses and accessibility to records and documents are not relevant considerations. Doc. 6, p. 7. Plaintiff agrees that if the cases can be decided on the administrative...