Summary
rejecting the plaintiffs' argument that the United States Forest Service resides in the Northern District of California solely because it has offices there
Summary of this case from Navajo Health Found.—Sage Mem'l Hosp., Inc. v. BurwellOpinion
No. C 04-03478 SI.
April 8, 2005
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF HIGH SIERRA HIKERS AND TRANSFERRING CASE TO THE EASTERN DISTRICT OF CALIFORNIA
On April 8, 2005, the Court heard argument on defendants' motion to dismiss for improper venue and failure to exhaust administrative remedies. Having carefully considered the arguments of parties and the papers submitted, the Court hereby GRANTS defendant's motion to dismiss with respect to plaintiff High Sierra Hikers and TRANSFERS the case to the Eastern District of California.
BACKGROUND
This case involves the Stanislaus National Forest, located within the Emigrant Wilderness Area, which consists of over 100,000 acres of land in the Sierra Nevada in California. Between 1920 and 1951, 18 dam structures were built within Stanislaus National Forest. In September, 2003, the United States Forest Service ("USFS") released a draft environmental impact statement ("DEIS") under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., proposing that the USFS would maintain, repair, or operate 12 of the 18 dam structures. After receiving public comments, the USFS issued a Record of Decision ("ROD") in December, 2003. In the ROD, the USFS decided to maintain, repair, or operate 11 dam structures.
Unless otherwise stated, the information in this section is based on the plaintiffs' First Amended Complaint.
Plaintiffs High Sierra Hikers Association ("HSH") and Wilderness Watch are organizations that "seek to protect wilderness values." Compl. at ¶ 5. Plaintiffs filed administrative appeals of the ROD. After the appeals were denied, plaintiffs filed suit in this Court against USFS; Jack Blackwell, in his official capacity as Regional Forester, Forest Service Region 5; and Tom Quinn, Supervisor of Stanislaus National Forest. Plaintiffs assert three causes of action, claiming violations of the Wilderness Act, the National Forest Management Act, and NEPA.
Defendant USFS now brings a motion to dismiss or for summary judgment for improper venue and failure to exhaust administrative remedies. Defendants/Intervenors California Trout, et al., and California Department of Fish Game have filed notices of joinder with defendant USFS's motion. Plaintiffs have filed an opposition to defendant's motion, as well as a motion to amend the complaint, which is scheduled for hearing on April 25, 2005.
DISCUSSION
1. Venue
Defendant argues that the case must be dismissed or transferred because venue is not proper in this District under 28 U.S.C. § 1391(e). A civil action brought against officers or employees of the United States acting in their official capacity may be brought in any judicial district in which: 1) a defendant in the action resides; 2) 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; or 3) the plaintiff resides if no real property is involved in the action. 28 U.S.C. § 1391(e). Defendant contends that none of these requirements is met in this case with respect to the Northern District of California. Plaintiffs contend that this case satisfies the venue provisions of 28 U.S.C. § 1391(e)(1) and (3).
A. USFS
Plaintiffs assert that the USFS "resides" in this District because it has offices located in this District. Plaintiffs' argument relies on Owner-Operators Independent Drivers Association of America, Inc. v. Skinner, 1989 WL 110497 (N.D. Cal. 1989). In that case, the court rejected the Department of Transportation's argument that the District of Columbia was the proper venue because the regulations in question were promulgated in Washington. Id. at * 15. The court found that venue was appropriate in this District because plaintiff resided in the District and would be required to comply with the challenged regulations. Id. This decision recognized that actions may be brought in the venue where a regulation is implemented, even if that district is not where the director of the executive agency "resides." See also William W Schwarzer, et al., Federal Civil Procedure Before Trial at 4:428.
Plaintiffs argue that the USFS "resides" in this district solely because it has offices in this district. However, maintaining any office in a judicial district does not make a federal agency a resident of that district for purposes of venue in a specific action. Schwarz v. I.R.S., 998 F.Supp. 201, 203 (N.D.N.Y. 1998). Plaintiffs' argument, if correct, would make venue proper for the USFS under 28 U.S.C. § 1391(e) in numerous judicial districts, regardless of the residence of the plaintiff or where the regulations in question were implemented or enforced. As described above, this is contrary to case law; therefore, the Court rejects plaintiffs' argument that the USFS "resides" in this District for purposes of this action.
B. California defendant-intervenor
Plaintiffs argue that venue is proper because defendant-intervenor California Trout, Inc. resides in this District. Plaintiffs claim that "defendant" in 28 U.S.C. § 1391(e) refers to all defendants and is not limited to the federal defendants. Plaintiffs assert that this is an issue of first impression for this Court, but recognizes that at least one court has found that venue under 28 U.S.C. § 1391(e) cannot be based on a non-federal defendant. Pls.' Opp'n at 6 n. 4. In fact, every decision this Court has found addressing the issue has rejected plaintiffs' argument. See Rogers v. Civil Air Patrol, 129 F.Supp.2d 1334 (M.D. Ala. 2001); National Association of Life Underwriters v. Clarke, 761 F.Supp. 1285 (W.D. Tex. 1991). See also Federal Civil Procedure Before Trial at 4:427; Wright Miller, Federal Practice and Procedure at § 3815. The Court rejects plaintiffs' argument based on the case law to the contrary. Additionally, plaintiffs' argument that the term "defendant" in 28 U.S.C. § 1391(e)(1) includes non-federal defendants is inconsistent with the language of the statute, which distinguishes federal from non-federal defendants and directs consideration of different venue requirements for non-federal parties. Therefore, the Court finds that the presence of a non-federal defendant does not make this District a proper venue under 28 U.S.C. § 1391(e).
C. High Sierra Hikers Association
Plaintiffs' final argument for valid venue under 28 U.S.C. § 1391(e) is that plaintiff HSH resides in this District and there is no real property in this action. The parties do not dispute that HSH resides in this District. See Pl.'s Ex. A (containing HSH's articles of incorporation); Def.'s Reply at 1. However, defendant does dispute whether HSH is a proper plaintiff in this action because of its alleged failure to exhaust its administrative remedies. If HSH is a valid plaintiff in this action, then venue is proper in this District under 28 U.S.C. § 1391(e). However, if this Court dismisses HSH from the action based on its failure to exhaust, then venue is not proper because plaintiff Wilderness Watch is based in Missoula, Montana. Compl. at ¶ 6. Therefore, the Court must first determine whether HSH exhausted its administrative remedies before determining if venue is proper in this District.
2. Exhaustion of administrative remedies
Defendant argues that it did not receive any comments from HSH during the public comment period on the proposed action and the DEIS. See Maschi Decl. at ¶¶ 4,7; Quinn Decl. at ¶ 3. Wilderness Watch did submit comments. AR 3939-43. Based on HSH's failure to submit comments, defendant argues that dismissal is proper because it failed to exhaust its administrative remedies as required under 7 U.S.C. § 6912(e) and 36 C.F.R. Part 215. Under USFS regulations, the appeals process is available only to parties that submit comments during the provided comment period. 36 C.F.R. § 215.1. Defendant asserts that in order to bring a claim before this Court, plaintiffs must invoke and exhaust the appeal procedures. 36 C.F.R. § 215.21. Because HSH did not submit comments to the DEIS, HSH could not file an appeal under USFS regulations and exhaust its administrative remedies under 7 U.S.C. § 6912(e).
Plaintiff HSH argues that it complied with 7 U.S.C. § 6912(e) because it filed a joint appeal with Wilderness Watch. See AR 6986-7009. 7 U.S.C. § 6912(e) states:
Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary or required by law before the person may bring an action in a court of competent jurisdiction against — 1)the Secretary; 2) the Department; or 3) an agency, office, or employee of the Department.
Plaintiff argues that § 6912(e) only requires the filing of an appeal and does not require a party to comment on a draft document. Under its reading of the statute, plaintiff asserts that the USFS cannot "bootstrap" its regulatory requirements into the statute and find that it has failed to exhaust its administrative remedies. Pls.' Opp'n at 13. However, § 6912(e) requires that litigants must exhaust "all administrative procedures established by the Secretary." The USFS's administrative procedures include the requirement of submission of comments on the proposed action. 36 C.F.R. § 215.6(a)(3) establishes that "individuals and organizations wishing to be eligible to appeal must provide . . . (iii) specific substantive comments (§ 215.2) on the proposed action." Section 215.2 defines substantive comments as "comments that are within the scope of the proposed action, are specific to the proposed action, have a direct relationship to the proposed action and include supporting reasons for the Responsible Officer to consider." The USFS informed the public that submission of substantive comments was required to have standing to appeal the agency's subsequent decision. See AR 3838-39, 3457. "Given the importance of administrative review prior to intervention . . . the court should require compliance with an exhaustion statute unless the suit alleges a constitutional claim." McBride Cotton and Cattle Corp. v. Veneman, 290 F.3d 973, 980 (9th Cir. 2002). Therefore, the Court finds that plaintiff, in order to have a valid cause of action under the Administrative Procedures Act, must have submitted comments as required by USFS regulations.
Plaintiff argues that if the Court finds that 7 U.S.C. § 6912(e) requires the submission of comments, then it did comply by submitting comments. Thomas Suk, the Secretary of HSH, stated that he sent an email message to Tom Quinn and John Maschi, the Land Management Planning Specialist for the Stanislaus National Forest, on October 23, 2003. Suk Decl. at ¶ 4. According to Suk, the email contained HSH's comments on the relevant DEIS. See Suk Decl., Ex. A. He did not receive a message stating that the email was not delivered. Suk Decl. at ¶ 5.
However, the email was sent to the personal email accounts of Tom Quinn and John Maschi. Suk Decl., Ex. A. The DEIS provided the proper email address for the submission of comments: commentspacificsouthwest-stanislaus@fs.fed.us. AR 3457. HSH does not contend that it sent the comments to this email address. Instead, it argues that the USFS cannot require submissions to the "comments" email address because 36 C.F.R. § 215.5(b)(1) requires that the agency provide public notice of "[t]he Responsible Official's name, title, telephone number, and addresses (street, postal, facsimile and e-mail)." Plaintiff argues that the "comments" email address is in violation of this regulation, as it is not the email address of the "Responsible Official."
The Court finds that 36 C.F.R. § 215.5(b)(1) does not require the USFS to provide an individual's personal email address. Instead, the regulation requires that the agency provide an email address that allows members of the public to submit comments to the Responsible Official. The USFS satisfied this requirement by providing the "comments" email address in multiple public documents. See AR 3457 (inside cover of DEIS); AR 3838 (newspaper notice of DEIS); AR 3839 (notice of public information meeting); and AR 3835-36 (press release).
Defendant also presents testimony explaining that the separate email address for public comments was created because numerous public comments could overload an individual's personal account. See Second Maschi Decl. at ¶ 3.
Finally, plaintiff asserts that dismissal is not appropriate because Quinn actually received its comments on the DEIS. In the DEIS, the USFS designated Quinn as the Responsible Official. AR 3457. Plaintiff argues that it satisfied the requirement to provide comments because: 1) Thomas Suk, on behalf of the President of HSH, sent HSH's comments via email to Quinn and Maschi on October 23, 2003; and 2) Suk did not receive any response stating that the emails were not received. See Suk Decl., Ex. A; Suk Decl. at ¶¶ 4-5. Defendant has presented testimony that no one, including Quinn and Maschi, received HSH's comments. Maschi Decl. at ¶¶ 4,7; Quinn Decl. at ¶ 3.
Regardless of whether Suk actually sent HSH's comments via email on October 23, 2003, plaintiff failed to comply with the necessary regulations. As discussed above, the individual email addresses for Quinn and Maschi were never provided in any of the public notices sent by the USFS. Instead, the "comments" email address was provided. Furthermore, 36 C.F.R. § 215.6 provides that:
Suk was aware of the "comments" email address because he submitted his personal comments regarding the DEIS to that email address on October 23, 2003. See AR 3947. Plaintiff gives no explanation for why Suk sent HSH's comments to a different email address.
(a)(1)(iii) It is the responsibility of all individuals and organizations to ensure that their comments are received in a timely manner as provided for in paragraph (a)(4) . . .
(a)(4) Evidence of timely submission. When there is a question about timely submission of comments, timeliness shall be determined as follows: . . .
(iii) For electronically mailed comments, the sender should normally receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment of the receipt of the comments, it is the sender's responsibility to ensure timely receipt by other means.
Plaintiff does not allege that it received an automated electronic acknowledgment from USFS after sending its comments on the DEIS. Instead, plaintiff argues that the USFS must have received the comments because Suk did not receive a "bounce-back" message from the USFS's email system. Suk states in his declaration that he has never received an acknowledgment of receipt of comments via email. Suk Decl. at ¶ 13. It is not sufficient that plaintiff asserts that the USFS "must" have received its comments, as 36 C.F.R. § 215.6(a) places the burden on the organization to ensure that the comments were received.
Additionally, when plaintiff failed to receive an automated acknowledgment from the agency, it was plaintiff's responsibility to follow-up with the agency to verify receipt of the comments. 36 C.F.R. § 215.6(a)(4)(iii). Plaintiff not only sent its comments to the wrong email addresses, it also did not take the necessary steps to ensure timely receipt of the comments by other means, as required under the regulations. Therefore, the Court finds that plaintiff failed to submit timely comments on the DEIS and failed to exhaust all administrative remedies under 7 U.S.C. § 6912(e). Because plaintiff has not met the requirements of 7 U.S.C. § 6912(e), it may not bring this action in this Court and the Court GRANTS defendant's motion to dismiss plaintiff High Sierra Hikers.
3. Summary
As described above, the Court finds that dismissal of plaintiff High Sierra Hikers' claims is appropriate because of its failure to exhaust its administrative remedies. Therefore, plaintiff Wilderness Watch has failed to demonstrate that this District is a proper venue for its claims under 28 U.S.C. § 1391(e). Under 28 U.S.C. § 1406(a), a district court that finds venue is improper can dismiss the case, or "if it be in the interests of justice," transfer the case to any district in which the action could have been brought. The Court finds that it is appropriate to transfer the case to the Eastern District of California, because the Emigrant Wilderness Area is located in that district, and defendants Quinn and Blackwell also reside in that district. Because of these findings, the Court will not address defendant's arguments with respect to plaintiffs' NFMA or NEPA claims, nor will it consider plaintiffs' motion to file an amended complaint. Those matters may be considered by the Court in the Eastern District of California.
CONCLUSION
For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant's motion to dismiss with respect to plaintiff High Sierra Hikers Association and TRANSFERS the case to the proper venue of the Eastern District of California. [Docket ## 33, 38, 49, 50.]
IT IS SO ORDERED.