IN RE: "Garrison Diversion Unit" Water Resource Project Litigation

i Case MDL No. 348Document 2 Filed 05/05/57Page 10f8JUDIN a4
LR	SS a IRR oo
S 1578 Arles	— = rr ro CY i" i
| BEFORE THE JUDICIAL PANEL ClepyGFEE Yishs i . -MULTIDISTRICT LITIGATION ME
IN REZ GARRISON DIVERSION UNIT ) DOCKET NO. 3438
LITIGATION ) » Ce
OPINION AND ORDER ; Co SE
3EFORE JOHN MINOR WISDOM, CHAIRMAN, AND EDWARD WEINFELD, =ZDWIN RR
A. ROASCN, STANLEY A. WEIGEL, ANDREW A. CAFFREY*, AND ROY W.
HARPER, JUDGES OF THE PANEL.
PER CURTAN ER
This litigation consists of two actions pending in two dis- Co .
. fricts, one each in tne District of the District of Columbia LL
and tune District of North Dakota. =
3oth actions involve the Garrison 2iversiocn Unit (Garrison), :
a federal water project presently structured by Congress to provide La
irrigation service to 250,000 acres in lorta Dakota. Tae project
{3 also designed to nrovide several recreational areas, water
service for fourteen cities and towns, and a 146,530 acre wildlife oe
nlan to mitigate wildlife habitat losses resulting from oro ject Lo
construction.
* Judge Caifrey Zook no nar: in Ine decision of inis matizer. =

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. The District of Columbia action was brought in May, 1976, | TE
| by the National Audubon Society, Inc. (Audubon) against the SRR© Secretarv of the U. S. Department of Interior and the Commissioner
of the U. S. Bureau of Reclamation. The State of North Dakota
co and the Garrison Diversion Conservancy District (the District) TE
Rs have intervened as defendants. Audubon seeks a halt to further en oo
. construction on Garrison claiming that defendants have violated SI
the National Environmental Policy Act, the Migratory Bird Treaty, |
the Migratory 3ird Treaty Act, and the Fish and Wildlife Coordi- |
E nagion Act. oo
a: On #lay 11, 1977, Audubon and the federal defendants in the -
District of Columbia action entered into a stipulation’ under
which tne United States, with minor exceptions, agreed to cease
further construction and development of Garrison pending completion
of a comprehensive supnlementarv environmental impact statement. .
Unon court approval of the stinulation, all pending motions and
resnonses thereto were withdrawn without nreiucice, but tine |
nleadinzs remained filed. The signatories acread not to take
any action to attempt Zo nullify tne stipulation, but nothing
in their agreement precluded any party from taking any position B
relevant to Garrison as deemed appnrooriate. In the event any
portion of the asreement became unenforceable, was violated, : oo

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® or was nullified, 'the other party" could abrogate the entire
arreement or any portion of it. North Dakota and the District
exoressly declined to be parties to the stipulation.
Apnarentlv in response to the stipulation in the District
of Columbia action, North Dakota and the District filed an action
in North Dakota state court on June 16, 1977. That action was
subsequently removed to the District of North Dakota. The Secre-
tary of the U. S. Department of Interior, the Commissioner of
the U. S. Bureau of Reclamation, the Project anager of Garrison,
and the Director of the U. S. Office of Management and Budget
are defendants in the Horth Dakota action. These defendants
are charged with 1) violating, inter alia, the Flood Control
@. of 1944, the Garrison Diversion Unit Reauthorization Act
of August 5, 1965, and the Congressional 3udget and Impoundment
Act of 1974; and 2) breach of various contracts entered into
in connection witn tne project.
Pursuant to 23 .3.C. 31407, the United States moves the
2anel to transfer Cae Yorta dakota action to the District of
the District of Columbia for coordinated or consolidated pretrial
nroceedings with tie action pending there. Audubon supports
the United sStates' motion. North Dakota and the District oppose
transfer.L/
1 All marties waived oral arzument and, tnersfore, thls matterwas submitted for decision on Lae pasts of the pavers filed.
9: Rule 14, R.2.0.70.00.0., 63 ©. .0. 233, 264 (1975).

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we conclude that transfer under Section 1407 would not .@
sarily serve the convenience of the parties and witnesses or
promote the just and efficient conduct of this litigation and,
accordingly, we deny the motion.
The United States relies on the Panel's decision in In re
Cross—-Florida Barge Canal Litigation, 329 ¥. Supp 543 (J.P.M.L.
1971), to demonstrate the presence of common questions of fact
sufficient to justify transfer in the present litigation. In |
the florida litigation, the Znvironmental Defense Fund brought
an action in the District of the District of Columbia challenging
a canal project on grounds of non-compliance with the National
Environmental Policy Act and other statutes. 3efore the court
had granted plaintiff a preliminary injunction, the President C
ordered the suspension of further construction of the Florida
canal. The Canal Authority tnen brought an action in tae Middle
district of Florida alleging that tae Presidential order was
void and of no effect and that tae President could not override
the will of Congress as expressed in the authorization of the
canal project. The Panel, in orceriny rransfier, found that there
were "many ecological questions of fact which will pe common
to both actions.' Id. at 544. The United States contends that,
as in the Florida litigation, environmental cuestions will be
shared bv bota actions in tne present litigation. Further, the
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®United States argues that Garrison's statutory authorizations
and the facts upon which they are predicated, along with questions
surrounding the extent of Nortn Dakota's fulfillment of its con-
tractual obligations, will also be matters common to both actions.
The United States thus argues that centralization will be necessary
to avoid duplicative discovery.
The United States also raises the prospect of inconsistent
orders issued by the two district ccurts with respect to the
construction of Garrison as a further justification for transfer
under Section 1407. Similarly, Audubon emphasizes the desirability
of having one court determine the effect that the pendency of
the North Dakota action has on the stioulation in the District
@. Columbia action, and vice versa.
Je find these arguments unversuasive. Only two actions
are involved here. While we recognize the existence of common
cuestions of fact between these two actions, we note that, in
order to justify transfer under Section 1407 waen only a minimal
mwimber of actions Ls involved, tne mevant is under a heavy burden
to snow that these common questions of fact are sufficiently
complex and that the accompanying discovery will be so time-
consumine as to further the purposes of Section 1407. See In
re Scotch Whiskev Antitrust Litigation, 299 F. Sunn. 543, 544
(J.P.i.L. 1999). We rule taat movant has aot met that burden.
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This conclusion is distinguishable from our holding in In re
Cross-Florida 3arge Canal Litigation, supra, because 1) in that
litigation all parties agreed upon the appropriateness of transfer;
and 2) more discovery and other pretrial proceedings have occurred
in the District of Columbia action now before us than had occurred
in either of the actions involved in the prior litigation - for
example, all parties in the present litigation agree that extensive
discovery by both Audubon and the federal government has occurred
in the District of Columbia action, and the parties to that action
have filed numerous briefs and voluminous exhibits relating to
the merits of the controversy.
Additionally, we observe that suitable alternatives to sectiofly1407 transfer are available to the parties in this litigation.
For example, discovery that has already transpired in the District
of Columbia action mav be made applicable to the North Dakota
action either Dy agreement of the parties or by any party requesting
the North Dakota court to order all parties to show cause why
that discovery snould not be made anplicable. Also, notices
for any future depositions cculd ove filed in both actions, thereby
making the depositions applicable in each action. See In re
£1i Lilly & Co. (Cephalexin Monohydrate) Patent Litigation, 446
F. Supp. 242, 244 (J.P.H4.L. 1978). See also Manual for Complex
Litigation, Parts I and II, §3j3.11 (rev. ed. 1977).
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® Also, consultation and cooperation between the two concerned
district courts, if viewed appropriate by those courts, coupled
with the cooperation of the parties, would be sufficient to minimize
the possibility of conflicting pretrial rulings. See In re Texas
Instruments, Inc. Employment Practices Litigation, 441 F. Supp.
925, 929 (J.p.M.L. 1977).
IT IS THEREFORE ORDERED that the motion for transfer under
Section 1407 concerning the actions listed on the following Schedule
A be, and the same hereby is, DJENIZD.
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Schedule A Docket No. 348
DISTRICT OF DISTRICT OF COLUMBIA
National Audubon Society v. Andrus, Civil Action
DIRTRICT OF NORTH DAKOTA
State of North Dakota, et al. v. Andrus givil Action
et al. No. A77-1048