IN RE: Cross-Florida Barge Canal Litigation

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JUDICIAL PAXEL GH Sn
BEFORE THE JUDICIAL PANEL ~'“- Co
ON .
muLTIDISTRICT LITIcand¥n?! 187)
- A RLRICIA BL HEARD ,
IN RE CROSS-FLORIDA BARGE CANAL LITIGATION THIPALEL
Environmental Defense Fund, Inec., et al. ) |
Vv. Corps of Engineers of the United States ) . \
Army, et al., District of Columbia, No. ) an :2655-69 Civil ) DOCKET NO. 70 \¢ /) ! CL
The Canal Authority of the State of Florida, ) ;
ete., et al. v. Stanley R. Resor, et al., )
Middle District of Florida, No. 71-92 Civ.-J )
OPINION AND ORDER
BEFORE ALFRED P. MURRAH, CHAIRMAN AND JOHN MINOR WISDOM, ; a
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, AND : Ce
STANLEY A. WEIGEL, JUDGES OF THE PANEL
PER CURIAM
These two cases, pending in different districts, present :
legal issues arising out of the construction of the Cross-Florida
Barge Canal across the northern portion ¢f Florida, connecting :
the Atlantic Ocean and the Gulf of Mexico. The Secretary of
the Army, the Chief Engineer of the United States Corps of
Engineers, the Chairman of the Council on Environmental Quality
and several other government officials, all defendants in these SE.
actions, have moved for section 1407 pretrial proceedings.
The first action was filed by the Environmental Defense
Fund in 1969 in the District of Columbia and seeks to enjoin
the defendants from proceeding further with the construction of
the canal because of the resulting irrevocable damage to the en-
vironment and the alleged violation of numerous federal statutes

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J in its construction. After a hearing, the district court denied
the defendants' motion to dismiss and orally granted the plain-
tiffs' motion for a preliminary injunction to stop certain aspects
of the construction. Before these orders were entered the President
of the United States, pursuant to the advice of the Council on
: Environmental Quality, ordered the suspension of further construc-
tion of the Canal. The Canal Authority of the State of Florida,
~ the local sponsor of the project, then moved to intervene in the
District of Columbia action alleging that as a result of the
President's order the federal defendants were no longer able
to defend the Canal project.
Prior to the granting of that motion, the Canal Authority
® filed the second action in the Middle District of Florida against
substantially the same defendants, alleging that the Presidential
Press Release was void and of no effect and that the President
could not override the will of Congress.	as. expressed in the authoriza-
tion of the Canal Project. In this action the Canal Authority
seeks to enjoin the defendants from carrying out the President's
order to halt construction and alleges that the recommendation
of the President's Council on Environmental Quality is in viola-
tion of the National Environment Policy Act of 1969, 42 U.S.C.A.
s4351 et seq., and the Public Information Act 2u.s.C.A. §552.
The defendants assert that extensive common questions of fact
are raised by these actions. The Florida action, which is directed
to the validity of the Presidential Order, is said to raise questions
J

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° of fact concerning the information obtained by the Council on
Environmental Quality, the advice given by the Council, the facts
considered by the President, the action taken by the President,
the consequences of the President's action, and general questions
concerning Executive Power to alter or terminate a Congressional
project. The defendants reason that the same questions are pre-
sentedrat least preliminarily, in the District of Columbia action.
At argument of the motion the Canal Authority and the City of
Jacksonville somewhat reversed their earlier positions and agreed
with the defendants that the two cases should be transferred.
The Environmental Defense Fund was also of the opinion that the
ecological questions raised in both cases provided a sufficient
® basis for transfer.
We agree with the parties that these cases are appropriate
for section 1407 pretrial proceedings. Although the legal issues
raised in the two actions are distinguishable, it is clear that
there are many ecological questions of fact which will be common
to both actions. In determining the validity of the Presidential
Press Release it will be necessary to investigate the ecological
background for the President's decision. Similarly, in the District
of Columbia action, extensive discovery in ecological areas will
be required by the Fund's allegations that the Canal Project is in
violation of the National Environmental Policy Act and other
; similar federal legislation. Pretrial coordination or consolida-
tion will eliminate the likelihood of repetitive discovery in
'@ |

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Ca :
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| these areas, serving the convenience of the parties and witnesses
and furthering the just and efficient conduct of the litigation.
The parties disagree as to the appropriate situs for coordin-
ated or consolidated pretrial proceedings. The defendants suggest
that much of the discovery will be centered in the District of
Columbia. They do not request transfer to that district, however,
| but to an adjacent district with a more favorable calendar con-
dition. The Environmental Defense Fund favors the District	of
Columbia. It asserts that Judge Barrington Parker, to whom the
Fund's action has been assigned, has developed a familiarity
with this litigation as the result of the pretrial proceedings
before him and that all parties to the dispute have appeared in
® the District of Columbia action.
Although there is some merit to the Fund's arguments, there
are stronger reasons for transfer to the Middle District of Florida.
: The engineers who planned the project are there. The majority
of witnesses expected to testify on the ecological issues are
also located there. And, most importantly, the Canal itself is
there. The focus of this litigation is clearly in the Middle
District of Florida and with the consent and cooperation of all
concerned, Senior Circuit Judge Harvey M. Johnsen has been
assigned to the Middle District of Florida pursuant to 28 U.S.C.
§294(d) to process this litigation.
®

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® oC
IT IS THEREFORE ORDERED that the above action now pending
in the District of Columbia is hereby transferred to the United
States District Court for the Middle District of Florida pursuaat
to 28 U.S.C. §1407. With the written consent of that court,
both actions are hereby assigned to the Honorable Harvey M.
Johnsen for coordinated Or consolidated pretrial proceedings.