WildEarth Guardians v. Klein et al

Filing 32

ORDER. The Motions at Docs. 15 and 24 are granted. Claims 9 through 15 shall be transferred to the District of Wyoming for all further proceedings and claims 7 and 8 shall be transferred to the District of New Mexico for all further proceedings. Furthermore, I order sua sponte that claims 5 and 6 involving the Spring Creek Mine in Montana be transferred to the District of Montana for all further proceedings. By Judge John L. Kane on 2/7/14.(mfiel, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:13-cv-00518
WILDEARTH GUARDIANS,
Petitioner,
v.
UNITED STATES OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT, et al.,
Federal Respondents; and
SAN JUAN COAL COMPANY,
Respondent Intervenor.
ORDER ON MOTIONS TO TRANSFER AND SEVER, DOCS, 15 & 24
Kane, J.

Before me are Federal Respondents’ Motion to Transfer and Sever Claims 9-15,
Doc. 15, and Respondent Intervenor San Juan Coal Company’s Motion to Transfer and
Sever Claims 7&8, Doc. 24.1 Petitioner WildEarth Guardians (“Petitioner” or “WEG”)
opposes both motions. The Complaint alleges 15 claims challenging various mining
permits located in Colorado, Montana, Wyoming, and New Mexico. Federal
Respondents’ Motion seeks to sever and transfer to Wyoming the claims that involve
mining permits for mines located in Wyoming, and New Mexico-based San Juan Coal
company seeks to do likewise for the New Mexican mine claims. Although I have a

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 Petitioner’s claims fall under the National Environmental Policy Act, 42 U.S.C. § 4331 et seq. and the 
Administrative Procedure Act, 5 U.S.C. § 701 et seq., against the United States as a defendant.  Accordingly, I have 
jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 (federal question), 1346 (United States as a defendant), 
2201 (declaratory relief), and 2202 (injunctive relief).  Venue is proper in this judicial district under 28 U.S.C. § 
1391(e)(2) because “a substantial part of the events or omissions giving rise to the claim” took place at 
Respondent OSM’s Western Regional Office in Denver, Colorado. Defendant Al Klein is the director of OSM’s 
Western Regional Office and, in that capacity, recommended to the U.S. Secretary of the Interior approval of the 
Mining Plans challenged. 

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history of granting transfer in environmental administrative cases, see Friends of the
Norbeck v.United States Forest Serv., 2010 WL 4137500 at *1 (D. Colo. Oct. 18,
2010)(granting transfer, reasoning that cases with strong local interests should be decided
locally); see also WildEarth Guardians v. United States Forest Serv., 2012 WL 1415378,
*52 (D.Colo. Apr. 24, 2012) (“It is axiomatic that ‘[t]here is a local interest in having
localized controversies decided at home.’” Id. at *3, quoting Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 509 (1947)), I have not had the opportunity to address the most suitable
protocol where a case presents claims with competing local interests and respondents
move to sever and transfer piecemeal. Seizing the opportunity now, I hold that transfer
by part, which will necessarily require severance, is appropriate where such will advance
the local interests championed by Norbeck and its ilk. The value in having environmental
claims litigated where their impacts resonate most deeply eclipses any alleged judicial
economy in lumping together in one suit and one venue various locally charged claims.
While Petitioner seems to appreciate that there is a preference for having local
controversies settled locally, it argues against severance and transfer by pointing to its
suit’s allegedly unifying theme, namely the allegation that Federal Respondents’ mining
approvals all share the same flaw under NEPA: not involving the public in the approval
process. Accordingly, Petitioner argues that judicial economy and the risk of
inconsistent judgment favors keeping the claims together in one action and in one venue.
Respondents counter that regardless of Petitioner’s belief that the approvals all
violated NEPA in the same way, each mining plan will stand or fall based on its unique
administrative record. Despite Petitioner’s characterization of the suit as protesting a
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“practice or pattern” of not involving the public, the petition does not present a facial
challenge to the Federal Respondents practice and procedures but rather is an “as
applied” challenge to seven separate decisions covering seven separate mines, each of
which will require the merits judge to review a separate and distinct administrative
record. Furthermore, the challenged mining approval plans involve different types of
NEPA documents (e.g., Environmental Impact Statements (EISs), Environmental
Assessments (EAs), Findings of No Significant Impacts (FONSIs), Statements of NEPA
Compliance), each of which is subject to different public participation requirements.
Thus, a failure to involve the public for one type of NEPA documentation does not
necessarily shed any light on whether the public was properly involved for a different
type of NEPA documentation.
Because Respondents are correct as a matter of law that each mining plan will be
reviewed upon its own customized administrative record, I disagree with Petitioner that
the claims “arise out of the same transaction or occurrence” or “present some common
question of law or fact” such that severance would be improper, see Preacher v. Wiley,
No. 09-cv-278, 2009 WL 6409350 at *2 (D. Colo. Nov. 20, 2009), or, by extension, that
there is a risk of inconsistent judgment or a judicial economy to be gained by litigating all
alleged claims in one suit. If some claims succeed and some claims fail, then that does
not necessarily mean that the judgments are inconsistent; rather that scenario may very
well mean that some mining plans were approved legally and others illegally. As
concerns any theoretical judicial economy, WEG does not explain what judicial economy
might be achieved by litigating all of the alleged claims in one suit. It simply declares
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that “dividing one case into three, as will happen if the Court grants both of the pending
motions to sever and transfer, does not serve judicial economy.” While the division of a
case often will not serve judicial economy, a blanket statement asserting that as a selfevident truth will not do. Whether judicial economy is served depends entirely upon the
nature of the claims involved. Given the distinct circumstances and requirements for
public participation underlying each of the seven decisions at issue in the instant suit’s
claims, I do not see what is to be economized by litigating the seven decisions in one
action.
In addition to arguing that judicial economy favors litigating this action by the
whole and in the District of Colorado, WEG contends that a finding of misjoinder must
predicate severance under Fed. R. Civ. P. 21. I disagree. Rule 21 provides that “[o]n
motion, or on its own, the court may at any time, on just terms, add or drop a party. The
court may also sever any claim against a party.” Although the Tenth Circuit has not
opined on the matter, it does not appear to have ever been presented with the question,
and districts within the Tenth Circuit, including the District of Colorado have held that
misjoinder is not a perquisite for severance. Starr v. City of Lakewood, No. 08–cv–
01390-WYD-KLM, 2008 WL 4861955, *1 (D.Colo. Nov. 10, 2008); Bicycle Peddler,
LLC v. John Does 1-177, No. 13-cv-671, 2013 WL 1103473 (D. Colo. Mar. 15, 2013);
Tab Exp. Intern. v. Aviation Sim. Tech., 215 F.R.D. 621, 622 (D.Kan.2003)
This practice is in keeping with other circuits that have found Rule 21 to authorize
severance of a claim without a finding of improper joinder, see, e.g., Wyndham Assoc. v.
Bintliff, 398 F.2d 614, 618(2d Cir. 1968); Sporia v. Pennsylvania Greyhound Lines, 143
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F.2d 105, 105 (3d Cir. 1944); Safeco Ins. Co. v. City of White House, 36 F.3d 540, 545-46
(6th Cir.1994). WEG cites Schudel v. Miller, No. 12–cv–01864–REB–KLM, 2013 WL
1815730, at *5 (D. Colo. Apr. 29, 2013) to suggest that there is a District of Colorado
precedent for requiring misjoinder, but whatever else that precedent may be, it is not
binding upon me and contradicts without explanation Starr and Bicycle Peddler. In any
event, the persuasive value of Shudel is dwarfed by the dozens of other cases allowing
severance without misjoinder via Rule 21.
Finally, WEG posits that it would be prejudiced in the form of inconvenience,
increased litigation expense and delay by severance and transfer. In the vein of
inconvenience, it protests that severance and transfer would force it to obtain local
counsel or obtain pro hac vice admission in Wyoming. Starting with this last supposed
prejudice, obtaining pro hac vice admission in Wyoming is a simple matter of an
electronic filing that can be done from the comfort of WEG’s home office in Santa Fe,
New Mexico. Indeed, WEG has already used this process to gain admission for its other
litigation in Wyoming involving the Wright Area EIS. As far as increased inconvenience
and expense, the distinct circumstances and requirements for public participation
underlying each of the seven decisions mean that WEG cannot litigate the claims together
in a meaningful manner anyway. Arguments will be tailored to each individual mine,
the propriety of each mine’s approval will be established individually and there is no
logical reason why the decisions about the mines need to be issued on the same day. I
suspect that while it may take longer for WEG to receive the full picture of what it seeks,

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WEG will receive opinions regarding at least some of the mines faster by litigating the
claims as proposed by Respondents and Respondent Intervenor.
Having established that there is nothing inherently problematic with carving up an
environmental action involving multiple claims that implicate strong local interests in
more than one geographic location and that misjoinder is not required to sever claims per
Rule 21, I now hold that severance and transfer are appropriate on the facts of this case
for the reasons set forth in the pending motions. Accordingly, the Motions at Docs. 15
and 24 are GRANTED. Claims 9 through 15 shall be transferred to the District of
Wyoming for all further proceedings and claims 7 and 8 shall be transferred to the
District of New Mexico for all further proceedings. Furthermore, I order sua sponte that
claims 5 and 6 involving the Spring Creek Mine in Montana be transferred to the District
of Montana for all further proceedings.

DATED:

February 7, 2014

BY THE COURT:
s/John L. Kane
John L. Kane, U.S. Senior District Judge 

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