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Pacific Coast Federation of Fishermen‟S Associations, et al v. United States Department of the Interior

August 6, 2012


The opinion of the court was delivered by: Jacqueline Scott Corley United States Magistrate Judge


Plaintiffs‟ lawsuit seeks to overturn Defendants‟ Environmental Assessment and Finding of No Significant Impacts for eight water service contracts for the delivery of water to 21 the Central Valley of California. Now pending before the Court is Defendants‟ 12(b)(3) 22 Motion to Dismiss for Improper Venue pursuant to U.S.C. § 1406(a), or in the alternative, to 23 Transfer Venue to the Eastern District of California pursuant to 28 U.S.C.A. § 1404(a).*fn1

Defendants contend that venue is improper in the Northern District because all relevant 25 agency decisions took place in the Eastern District and the water that is the subject of the 26 dispute is delivered to the Eastern District. Plaintiffs respond that venue is proper in the 27 Northern District because water is taken from the Northern District, where the key pumping 2 facility is located and environmental harm occurs in the Northern District. After carefully 3 reviewing the parties‟ submissions, and having had the benefit of oral argument on August 2, 4 2012, the Court concludes that assuming venue is proper in the Northern District, the action 5 should nonetheless be transferred to the Eastern District of California pursuant to section 6 1404(a). 7

States Bureau of Land Reclamation‟s ("Reclamation") and U.S. Department of the Interior‟s 11 Delta Division and Five San Luis Unit Water Service Interim Renewal Contracts 2012-2014 ("interim contracts"). (Dkt. No. 1 ¶ 2.) 14

Significant Impact ("FONSI") prepared by Defendant Reclamation to ascertain the 16 environmental effects of the interim contracts violate the National Environmental Policy Act, 17 42 U.S.C. section 4321 et seq. ("NEPA"). (Dkt. No. 1 ¶ 2.) In particular, the EA and FONSI 18 violate NEPA because they assume that Defendant Reclamation has no discretion to (1) reject 19 the interim contracts; (2) reduce the quantities of water exported from the San Francisco 20 Bay/Sacramento River Delta ("Bay-Delta"); or (3) increase the interim contracts‟ pricing 21 structure to reduce water demand and thus reduce exports and their environmental impacts. 22

(Dkt. No. 1 ¶ 2.) Since Defendants consider continued water delivery to be the environmental 23 baseline, the EA and FONSI improperly conclude that water deliveries under the interim 24 contracts will have no effect on the environment. (Dkt. No. 1 ¶ 3.) As a result of this 25 assumption, Defendants have not considered any alternatives or mitigation measures to reduce 26 the environmental impact of the interim contracts "on the Delta‟s increasingly imperiled 27 salmon, steelhead, sturgeon and other fish and wildlife." (Id.) Plaintiffs also seek to compel 28 Defendant Reclamation "to complete the long-overdue Environmental Impact Statement


The Pacific Coast Federation of Fishermen‟s Association ("PCFFA") and San Francisco Crab Boat Owners Association (collectively "Plaintiffs") challenge the United 10 (collectively "Defendants") approval of eight water service contracts, referred to as the Three 12 Plaintiffs allege that the Environmental Assessment ("EA") and Finding of No ("EIS") for the long-term contracts between Reclamation and the West San Joaquin Division 2 and San Luis Unit contractors as required by the CVPIA." (Dkt. No. 1 ¶ 5.) 3

4 health and population of anadromous fishes, including salmon and steelhead, on which its 5 members rely for their sustainable harvests of ocean fish. (Dkt. No. 1 ¶ 12.) Plaintiff San 6 Plaintiff PCFFA contends that the Central Valley Project ("CVP") directly affects the Francisco Crab Boat Owners Association also alleges injury due to reliance on a sustainable 7 harvest of crustaceans and fishes from the Pacific Ocean; its members operate small, family 8 owned fishing boats that catch Dungeness crab, wild California king salmon, herring, and 9 many other fish species that live in the Pacific Ocean. (Dkt. No. 1 ¶ 13.) According to 10

Plaintiffs, Defendants‟ environmental review ignores the environmental impacts its water 11 exports are having on the Delta‟s increasingly imperiled salmon, steelhead, sturgeon and other 12 fish and wildlife. (Dkt. No. 1 ¶ 3.) The failure to conduct a serious environmental impact analysis for the CVP short term and long term water contracts puts these species at risk. (Dkt. 14

17 declaratory and injunctive relief. Defendants subsequently filed the pending Motion to 18

Dismiss for Lack of Venue or, in the alternative, to Transfer Venue to the Eastern District of 19 California. (Dkt. No. 4.) Defendants contend that venue is not proper in this District and, 20 even if it is, the case should be transferred pursuant to 28 U.S.C. § 1404(a) in the interests of 21 justice. 22

A civil action may be brought in "a judicial district in which a substantial part of the

24 events or omissions giving rise to the claim occurred, or a substantial part of property that is 25 the subject of the action is situated." 28 U.S.C. § 1391(b)(2). Once the propriety of venue is 26 challenged pursuant to Rule 12(b)(3), the plaintiff bears the burden of proving that venue is 27 proper. Piedmont Label Co. v. Sun Garden Packing Co., 589 F.2d 491, 496 (9th Cir. 1979). 28

When considering a motion to dismiss for improper venue, a court need not accept the

No. 1 ¶ 19.)


Plaintiffs filed this action in this District on April 30, 2012 and make claims for


pleadings as true and may consider facts outside of the pleadings. Doe 1 v. AOL, LLC, 552 2 F.3d 1077, 1081 (9th Cir. 2009). "[T]he court must draw all reasonable inferences in favor of 3 the non-moving party and resolve all factual conflicts in favor of the non-moving party." Ctr. 4 For Food Safety v. Vilsack, No. 11-00831, 2011 WL 996343, at *2 (N.D. Cal. Mar. 17, 2011). 5

If the court finds venue is improper, it has discretion to dismiss or to transfer venue to a 6 proper court. Omnicell, Inc. v. Medacist Solutions Group, LLC, 272 F.R.D. 469, 473 (N.D. 7

Even if a court finds that venue is proper, it has discretion to transfer a case to another 9 district pursuant to 28 U.S.C. section 1404(a). That statute provides: "For the convenience 10 of parties and witnesses, in the interest of justice, a district court may transfer any civil action 11 to any other district or division where it might have been brought or to any district or 12 division to which all parties have consented." 28 U.S.C. § 1404(a). When a defendant

Cal. 2011) (internal citations omitted). 8

moves for a 1404(a) transfer, the defendant bears the burden to show that transfer is 14 appropriate. Commodity Futures Trading Commission v. ...

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