United States District Court, N.D. California
For Earth Island Institute, Center for Biological Diversity, Plaintiffs: Justin Augustine, LEAD ATTORNEY, Center for Biological Diversity, San Francisco, CA; Rachel Marie Fazio, John Muir Project of Earth Island Institute, Big Bear City, CA.
For Tom Quinn, in his official capacity as Forest Supervisor for the Tahoe National Forest, Dean Gould, in his official capacity as Forest Supervisor for the Sierra National Forest, United States Forest Service, an agency of the Department of Agriculture, Defendants: Marissa Ann Piropato, LEAD ATTORNEY, Christine Ann Hill, Natural Resources Section, Environmental & Natural Resources Division, United States Department of Justice, Washington, DC.
For Sierra Forest Products, J.W. Bamford, Inc., Intervenor Defendants: Dennis L. Porter, LEAD ATTORNEY, Law Offices of Dennis L. Porter, Sacramento, CA; Julie A. Weis, Haglund Kelley LLP, Portland, OR.
ORDER DENYING MOTION TO SEVER AND GRANTING MOTION TO TRANSFER VENUE
JON S. TIGAR, United States District Judge.
Defendants Tom Quinn, supervisor for the Tahoe National Forest, Dean Gould, supervisor for the Sierra National Forest, and the United States Forest Service (" USFS" ) (collectively, " Defendants" ) move to sever the claims in this action and to transfer venue to the Eastern District of California. Federal Defendants' Motion to Server Claims and Transfer Venue and Memorandum of Law in Support Thereof (" Mot." ), ECF No. 9.
The Court will grant the motion to transfer, and allow the motion to sever to be decided by the transferee court in the exercise of its case management authority.
A. Factual Background
In July 2013, the Aspen fire burned approximately 22,300 acres of the Sierra National Forest within Fresno County in the Eastern District of California. Complaint for Declaratory and Injunctive Relief (" Complaint" ), ¶ 30 ; Environmental Assessment: Aspen Recovery and Reforestry Project (" Aspen EA" ) at 6 *Exh. A to Mot., ECF No. 9-2). In August 2013, the American fire burned approximately 22-28,000 acres of the Tahoe National Forest, within Placer County, also in the Eastern District of California. Complaint, ¶ 25; Environmental Assessment: Big Hope Fire Salvage and Restoration Project (" Big Hope EA" ) at 6 (Exh. C to Mot., ECF No. 12).
Between November 2013 and June 2014, the Tahoe National Forest engaged in a public process, including the preparation of an Environmental Assessment (" EA" ) pursuant to the National Environmental Policy Act (" NEPA" ), 42 U.S.C. § § 4321 et seq, to approve the Big Hope Fire Salvage and Restoration Project (" Big Hope Project" ). ¶ ¶ 2, 27-28. In the Big Hope Project, the Tahoe National Forest proposes to conduct salvage harvest of fire-killed trees, remove hazardous trees, and engage in tree planting in areas affected by the American fire. Big Hope EA, at 8. The purpose of the project is to recover the economic value of fire-killed trees by allowing the local timber industry to harvest them, to reduce public safety hazards, to reduce the danger of suppressing future wildfires, and to re-establish forested conditions. Id. On June 26, 2014, Defendant Quinn signed a Decision Notice and Finding of No Significant Impact (" DN/FONSI" ) finally approving the Big Hope project. (Exh. D to Mot., ECF No. 13.) The
EA was prepared, and the DN/FONSI was signed, in Placer and Nevada Counties, both within the Eastern District.
Also between November 2013 and June 2014, the Sierra National Forest engaged in a similar process to approve the Aspen Recovery and Reforestation Project (" Aspen Project" ). ¶ ¶ 32-33. In the Aspen Project, the Sierra National Forest proposes to conduct " hazard tree removal" of dead trees, salvage timber harvest for sale to the local timber industry, plan and release new conifer seedlings, reopen or construct temporary roads, and engage in noxious weed eradications, with the area affected by the Aspen fire. Aspen EA, at 15. Defendant Gould finally approved a DN/FONSI for the Aspen Project on June 27, 2014. (Exh. B to Mot., ECF No. 11.) The EA was prepared, and the final DN/FONSI was signed, in Fresno County.
Plaintiff Earth Island Institute (" EII" ) is a nonprofit corporation headquartered in Alameda County within the Northern District of California. ¶ 7. Through its John Muir Project, EII participated in the process for public comment on the environmental review of the Aspen Project and the Big Hope Project (collectively, the " Projects" ). ¶ 13. " John Muir Project offices are in San Bernardino County, California," which is within the Central District of California. ¶ 7.
Plaintiff Center for Biological Diversity (" CBD" ) " is a non-profit corporation with offices in San Francisco, Los Angeles, and Joshua Tree, California; Nevada; Oregon; Washington; Arizona; New Mexico; Alaska; and Washington, D.C." ¶ 9. CBD also participated in the public comment process for the approval of both Projects. ¶ 13.
B. Procedural History
Plaintiffs EII and CBD (collectively, " Plaintiffs" ) filed suit against Defendants in this district on July 8, 2014. Plaintiffs allege that the Big Hope and Aspen EAs failed to properly analyze the Projects' potential impacts on habitat within the Big Hope and Aspen project areas that is used by California Spotted Owls, Black-backed Woodpeckers, and Pacific Fishers. ¶ ¶ 35, 37-51, 56-85. Plaintiffs bring causes of action through the Administrative Procedure Act (" APA" ), 5 U.S.C. § § 701 et seq., to argue that these alleged failures violated NEPA and the National Forest Management Act (" NFMA" ), 16 U.S.C. § § 1600 et seq. In their prayer for relief, Plaintiffs ask the Court to:
1. Declare that Defendants violated NEPA, NFMA, the APA, and implementing regulations, in preparing and approving the Big Hope and Aspen Project EAs, Decision Notices, and FONSIs;
2. Enjoin Defendants from awarding or implementing the Projects, except for felling of hazard trees that could otherwise fall on and hit roads maintained for public use, trails or administrative structures, until Defendants have complied with NEPA, NFMA, the APA, and implementing regulations;
3. Award Plaintiffs their costs and attorneys fees under the Equal Access to Justice Act;
4. Grant Plaintiffs such other and further relief as the Court deems just and equitable
Complaint, p. 29. In the portion of the Complaint addressing venue, Plaintiffs state:
Venue in this Court is proper under 28 U.S.C. § § 1391 and 1392. Defendants are federal agency employees and a federal agency, and Plaintiff Earth Island Institute's primary place of business is in the Northern District of California. Plaintiff Center for Biological Diversity (CBD) has an office in San Francisco, within the Northern District, and CBD's counsel on this case is based in the Northern District. The U.S. Forest Service's attorneys at the Office of General Counsel for Region 5 (California) are also in San Francisco, within the Northern District. Venue therefore properly vests in this district.
¶ 6. On July 10, Defendants filed this motion to sever and transfer venue, noting " that they have conferred with Plaintiffs and understand that Plaintiffs will file a motion seeking a preliminary injunction forthwith." Mot. 1. Defendants sought " expedited resolution of this motion--and are willing to waive both oral argument and a reply brief--so that Plaintiffs' request for injunctive relief can be heard in the proper court." Id. After a telephonic case management conference with the Court on July 10, the parties stipulated to a briefing schedule in which Plaintiffs would file their motion for a preliminary injunction on July 15, and would oppose the present motion on Friday, July 18. ECF Nos. 16 & 17. The parties also stipulated to deadlines to further brief, and hear, the motion for a preliminary injunction such that the motion could be heard before Defendants intend to begin implementation of the two Projects, on August 1.
At Defendants' request, the Court took this motion under submission upon the filing of ...