UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) NEW HOPE POWER COMPANY, ) et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 09-2413 (RWR) ) UNITED STATES ARMY CORPS OF ) ENGINEERS, et al., ) ) Defendants. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiffs Okeelanta Corporation (“Okeelanta”) and New Hope
Power Company (“New Hope”) bring this action against the United
States Army Corps of Engineers (“Corps”) and its director of
Civil Works, Steven Stockton, alleging that the Corps improperly
extended its jurisdiction under the Clean Water Act (“CWA”) to
prior converted croplands without providing for public notice and
comment as is required by the Administrative Procedure Act
(“APA”). The Corps and Stockton have moved to transfer venue to
the Southern District of Florida. Because a transfer of venue to
the Southern District of Florida is in the interest of justice,
the motion to transfer will be granted.
BACKGROUND
Okeelanta is a sugarcane grower in Florida. (Compl. ¶ 2.)
It owns a 20,000 acre plot of land in Palm Beach County, Florida
(the “Mill Lot”) where the company grows sugarcane and operates a -2-
sugar refining mill. (Id. ¶ 2; Defs.’ Mot. to Transfer Venue
(“Defs.’ Mot.”) at 6.) The Mill Lot is located within the
Everglades Agriculture Area (“EAA”), an area of the Florida
Everglades that the Corps drained for flood control purposes in
the late 1940s and 1950s and that has since been maintained as
farmland through a system of levees and pumps. (Compl. ¶ 8;
Defs.’ Mot. at 3.) In 1993, Okeelanta informed the Corps’
Regulatory Field Office of the Miami District that it planned to
use part of its Mill Lot by building a renewable energy facility
and modifying the mill and refinery on sugarcane fields east of
the mill. (Compl. ¶ 44.) The Miami Regulatory Field Office
responded that the Corps would not exercise jurisdiction1 over
the part of the Mill Lot that would be used for the construction
of the facility because “these wetlands have been determined to
be Prior Converted [Croplands] (PC) and are not regulated by the
[Corps] pursuant to Section 404 of the Clean Water Act.” (Id.
¶ 45.)
1 As mandated by section 404 of the CWA, the Corps regulates discharges of dredged or fill material into waters of the United States, including “wetlands,” under guidelines set forth by the United States Environmental Protection Agency (“EPA”) in conjunction with the Secretary of the Army acting through the Chief of Engineers. 33 U.S.C. § 1344(a). Beginning in the late 1970s and continuing into the late 1980s, the Corps did not consider wetlands that had been converted to dry land as falling within Corps jurisdiction under the general requirements of the CWA. (Compl. ¶ 24.) A Final Rule jointly promulgated in 1993 by the EPA and the Corps stated “waters of the United States do not include prior converted cropland.” (Compl. ¶ 37; 33 C.F.R. § 328.3(a)(8)). -3-
New Hope is a renewable energy company that provides
electricity to Okeelanta. (Compl. ¶ 3.) New Hope holds a ground
lease from Okeelanta for the land adjacent to the sugar refining
mill and runs the renewable energy facility on that land. (Id.
¶ 3; Defs.’ Mot. at 6.) In 2008, New Hope decided to expand the
renewable energy facility by converting approximately 150 acres
of cropland to build a landfill for the ash waste generated by
the facility, which would enable New Hope to avoid trucking the
ash to a landfill located approximately 60 miles away. (Compl.
¶ 3.) To that end, in May 2008, New Hope submitted to the State
of Florida a petition for permission to expand the size of the
renewable energy facility from 82.1 acres to 349.3 acres, 150 of
which would be used as the ash landfill. The expansion would
disturb 32 acres of prior converted cropland in the Mill Lot.
(Id. ¶ 48; Defs.’ Mot. at 7.)
In January 2009, the Jacksonville District of the Corps
prepared an Issue Paper that set forth the Jacksonville
District’s methodology for conducting jurisdictional
determinations regarding proposed nonagricultural activities in
the EAA. (Compl. ¶¶ 52-53; Def.’s Mot. Ex. A (“Issue Paper”).)
The Issue Paper critiqued an earlier method used to designate
prior converted cropland in the EAA and set forth an approach the
Jacksonville District would use going forward. (Compl. ¶¶ 54,
57-58.) -4-
Under 33 C.F.R. §§ 320.1(a)(6), the Corps may make upon
request a jurisdictional determination to decide whether a
putative “water of the United States” is within its CWA
regulatory jurisdiction, and therefore whether a permit would be
necessary to conduct work in those waters. According to the
defendants, the authority to make these determinations has been
delegated to the Corps’ district offices. (Defs.’ Mot. at 3.)
In January 2009, the Jacksonville District of the Corps acquired
from the State of Florida a copy of New Hope’s petition to modify
its permit to operate the renewable energy facility. (Compl.
¶ 72.) The Corps advised New Hope that the Corps was reviewing
the petition as an application for a Section 404 permit. It
asked for additional information relating to New Hope’s
application for an expansion of its renewable energy facility
because the expanded facility area may have contained waters of
the United States. (Id. ¶ 73.) In February 2009, New Hope
responded that no application had been submitted to the Corps,
and that there were no waters of the United States on the Mill
Lot because the Mill Lot consisted of prior converted cropland.
(Id. ¶ 74.)
In March 2009, the Jacksonville District of the Corps sent
the Issue Paper to the Corps’ headquarters in Washington, D.C.
seeking review and comment. In April 2009, headquarters official
Steven L. Stockton responded, agreeing with the district’s -5-
approach and finding it consistent with national policy. (Compl.
¶ 62; Defs.’ Mot. Ex. B.) This memorandum was transmitted to New
Hope in May, 2009. New Hope responded by asking the Jacksonville
District whether that memorandum was the “final decision on how
these jurisdictional rules [would] be applied in the EAA,” and
whether there was “any chance that the Jacksonville District
would be open to applying the jurisdictional rules in a different
way with regard to an individual project.” (Compl. ¶ 78; Defs.’
Mot. at 7.) According to the plaintiffs, the Jacksonville
District responded that the jurisdictional approach “will be
applied to any activity in the EAA that constitutes a change in
use from agriculture” and that each “individual project in the
EAA will be assessed based on this approach and the onsite
conditions.” (Compl. ¶ 79.) In July and August of 2009, the
Corps requested that New Hope provide additional information
regarding its application for a Section 404 permit. In
September 2009, the Corps notified New Hope that since the
additional information was not provided, its section 404
application would be considered withdrawn. (Compl. ¶ 81; Defs.’
Mot. at 7.) The plaintiffs filed their complaint in this case in
December 2009, arguing that the Corps made a final determination
that the Mill Lot was wetland under Corps jurisdiction, and that
the Corps’ action constituted rulemaking that violated the APA
because the Corps had not engaged in notice and comment -6-
rulemaking. (Compl. ¶¶ 82, 89, 105-139.) The defendants counter
that the Corps has not made any final determination regarding the
regulatory status of the Mill Lot. (Defs.’ Mot. at 7.)
The defendants have moved to transfer venue to the Southern
District of Florida alleging that the claim has little connection
to the District of Columbia and the case implicates a strong
public interest of hearing questions regarding the Everglades in
Florida. (Defs.’ Mot. at 1-2.) The plaintiffs oppose transfer,
arguing that transfer would be inappropriate because the
challenged actions were issued in the District of Columbia and
are of national importance. (Pls.’ Opp’n at 1.)
DISCUSSION
“A case may be transferred to another venue under 28 U.S.C.
§ 1404(a) ‘[f]or the convenience of parties and witnesses, in the
interest of justice[.]’” Fanning v. Trotter Site Preparation,
LLC, 668 F. Supp. 2d 60, 62 (D.D.C. 2009) (citing 28 U.S.C.
§ 1404(a) and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253
(1981)). The moving party carries the burden of showing that
transfer is warranted. See Montgomery v. STG Int’l, Inc., 532 F.
Supp. 29, 32 (D.D.C. 2008). “The decision whether or not to
transfer the case to another judicial district pursuant to
28 U.S.C. § 1404(a) is discretionary.” In re DRC, Inc., 358 Fed.
Appx. 193, 194 (D.C. Cir. 2009). To adjudicate a motion to
transfer, the district court conducts an individualized, -7-
“factually analytical, case-by-case determination of convenience
and fairness.” SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154
(D.C. Cir. 1978).
As a threshold issue, transfer under § 1404(a) is restricted
to those venues in which the action “might have been brought.”
28 U.S.C. § 1404(a) (2006); see also Robinson v. Eli Lilly and
Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008). Under 28 U.S.C.
§ 1391,
[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, 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). Here, venue is proper in the Southern
District of Florida in part because plaintiffs’ property, the
Mill Lot, is located in Palm Beach County, which is within the
Southern District of Florida. (Compl. ¶¶ 1-2; Defs.’ Mem. at 1.)
“After determining that venue in the proposed transferee
district would be proper, a court then ‘must weigh in the balance
the convenience of the witnesses and those public-interest
factors of systemic integrity and fairness that, in addition to
[the] private concerns [of the parties], come under the heading -8-
of ‘the interest of justice.’” Demery v. Montgomery County, 602
F. Supp. 2d 206, 210 (D.D.C. 2009) (quoting Stewart Org. Inc. v.
Ricoh Corp., 487 U.S. 22, 30 (1988)). “‘The private interest
factors that are typically considered include 1) the plaintiff’s
choice of forum, 2) the defendant’s choice of forum, 3) where the
claim arose, 4) the convenience of the parties, 5) the
convenience of the witnesses, particularly if important witnesses
may actually be unavailable to give live trial testimony in one
of the districts, and 6) the ease of access to sources of
proof.’” Greene v. Nat’l Head Start Ass’n., 610 F. Supp. 2d 72,
74-75 (D.D.C. 2009) (quoting Demery, 602 F. Supp. 2d at 210).
“‘Public interest factors include 1) the local interest in making
local decisions about local controversies, 2) the potential
transferee court’s familiarity with the applicable law, and
3) the congestion of the transferee court compared to that of the
transferor court.’” Greene, 610 F. Supp. 2d at 75 (quoting
Demery, 602 F. Supp. 2d at 210). Transfer should be granted
where the balance of private considerations of the parties of
convenience and fairness and public concerns, such as systemic
integrity, weigh in its favor. See Devaughn v. Inphonic, Inc.,
403 F. Supp. 2d 68, 72 (D.D.C. 2005); Trout Unlimited v. U.S.
Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). -9-
I. PRIVATE INTERESTS
When two potentially proper venues are proposed, the
plaintiffs’ choice of forum is frequently accorded deference,
particularly where the plaintiffs have chosen their home forum
and many of the relevant events occurred there. Great Socialist
People’s Libyan Arab Jamahiriya v. Miski, 496 F. Supp. 2d 137,
144-145 (D.D.C. 2007) (citing Reiffin v. Microsoft Corp., 104 F.
Supp. 2d 48, 52 (D.D.C. 2000) (internal citations omitted)).
However, less deference to the plaintiff’s choice of forum is
warranted where the chosen forum is not plaintiff’s home forum.
Marks v. Torres, 576 F. Supp. 2d 107, 111 (D.D.C. 2008) (citing
Piper Aircraft, 454 U.S. at 255-56 and Zakiya v. United States,
267 F. Supp. 2d 47, 59 (D.D.C. 2003)); see also Shawnee Tribe v.
United States, 298 F. Supp. 2d 21, 24 (D.D.C. 2002). In
addition, where there is an insubstantial factual nexus between
the case and the plaintiff’s chosen forum, deference to the
plaintiff’s choice of forum is further weakened. Aftab v.
Gonzalez, 597 F. Supp. 2d 76, 80 (D.D.C. 2009); see also
Comptroller of Currency v. Calhoun Nat’l Bank, 626 F. Supp. 137,
140 n.9 (D.D.C. 1985). Deference to plaintiffs’ choice of forum
is further “‘diminished where, as here, transfer is sought to the
plaintiffs’ resident forum.’” Airport Working Group of Orange
County v. United States Department of Defense, 226 F. Supp. 2d
227, 230 (D.D.C. 2002) (quoting Miccosukee Tribe of Indians v. -10-
United States, Civil Action No. 99-2464 (RWR), slip op. at 5
(D.D.C. December 27, 2000)).
Here, this action’s ties to the District of Columbia are
insubstantial and its ties to Florida are substantial. The land
at issue in this case is in Florida. The Issue Paper reflecting
how jurisdiction over EAA land will be assessed was drafted by
the Corps’ district office in Florida. While Stockton embraced
the Issue Paper’s methodology, that Florida Office, not
headquarters in the District of Columbia, will evaluate whether
section 404 applies to plaintiffs’ land.
The plaintiffs argue that Stockton’s April 2009 memorandum
demonstrates a sufficient involvement by an official in this
district to support deferring to their choice of forum. However,
“[m]ere involvement . . . on the part of federal agencies, or
some federal officials who are located in Washington, D.C. is not
determinative” of whether the plaintiffs’ choice of forum
receives deference. Stockbridge-Munsee Cmty. v. United States,
593 F. Supp. 2d 44, 47 (D.D.C. 2009) (transferring case and
refraining from deferring to the plaintiffs’ choice of forum
despite the fact that “the administrative action at issue in this
case arose in Washington”) (internal quotations and citations
omitted); Sierra Club v. Flowers, 276 F. Supp. 2d 62, 67-68
(D.D.C. 2003) (granting transfer and according the plaintiffs’
choice of forum little deference where the federal officials in -11-
Washington, D.C. played no active role in the decision and the
national significance of the Everglades ecosystem by itself was
insufficient to support deferring to plaintiff’s forum choice);
Shawnee Tribe, 298 F. Supp. 2d at 25 (transferring case from the
District of Columbia to Kansas and de-emphasizing plaintiff’s
choice of forum because “the decisionmaking process, by and
large, has not been substantially focused in this forum” although
“some officials from the GSA and the Department of Interior who
work in the Washington, D.C. area [were] involved”); Trout
Unlimited, 944 F. Supp. at 17 (transferring case from the
District of Columbia to Colorado where administrative decision
was made and noting that deference to plaintiff’s choice of forum
was mitigated because limited involvement by Washington, D.C.
based officials gave the District of Columbia “no meaningful ties
or interest in this suit”); Southern Utah Wilderness Alliance v.
Norton, Civil Action No. 01-2518 (CKK), 2002 WL 32617198, at *3
(D.D.C. June 28, 2002) (transferring case from the District of
Columbia to Utah where “the relationship between the challenged
agency action -- the sale and issuance of twelve oil and gas
leases granted by the Utah Bureau of Land Management -- and this
District is attenuated at best”); Airport Working Group of Orange
County, 226 F. Supp. 2d at 230 (transferring case from the
District of Columbia to California and according the plaintiff’s
choice of forum limited deference, even though the record of -12-
decision was signed by an official in D.C., because most of the
work on which the ultimate decision was based occurred in
California). Even though plaintiffs have framed their claim as a
challenge to flawed headquarters rulemaking, the gravamen of this
controversy is how the Florida district office will evaluate
whether it will exert jurisdiction over plaintiffs’ land.
“‘Courts in this jurisdiction must . . . guard against the
danger that a plaintiff might manufacture venue in the District
of Columbia’” by framing a cause of action as involving a federal
government official or agency in this district in a suit that
“‘properly should be pursued elsewhere.’” Marks, 576 F. Supp. 2d
at 111 (quoting Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C.
Cir. 1993). Because the plaintiffs did not bring this claim in
their home forum, this case lacks meaningful ties to the District
of Columbia, and defendants seek transfer to the plaintiffs’ home
forum, the plaintiffs’ choice of forum will be accorded little
deference and the choice of forum factors favor transfer.
Regarding the remaining private interest factors, the
defendants’ primary argument is that the claim arose in Florida,
and the case should be transferred there. (Defs.’ Mot. at 12-
14.) The plaintiffs argue instead that their claim arose in the
District of Columbia, and that the District of Columbia is no
less convenient for any party than is the Southern District of
Florida. (Pls.’ Opp’n at 13-15.) The plaintiffs’ claim as -13-
framed, whether or not it is ripe or has any merit, is that the
Stockton memorandum issued in this district was an agency
rulemaking that did not comply with the APA’s procedural
requirements. This factor only slightly favors venue here since,
as is noted above, the gravamen of this controversy centers on
Florida decision-making. Since the plaintiffs claim no
inconvenience to them in either this district or their home
district and the Corps operates both here and in Florida, the
fourth factor favors neither side. Likewise, the fifth and sixth
factors regarding convenience of witnesses and access to proof
are neutral as both parties concede that judicial review would be
limited to the administrative record (Pls.’ Opp’n at 16; Defs.’
Mot. at 15), and neither side argue that these factors favor
either side. On balance, the private interests tilt in favor of
transfer.
II. PUBLIC FACTORS
The plaintiffs argue that the District of Columbia is more
familiar with the APA than is the Southern District of Florida.
(Pls.’ Opp’n at 16-17.) However, the federal district courts are
presumed to be equally capable of interpreting the federal law
governing an APA claim. Thus, this factor is neutral. See
Aftab, 597 F. Supp. 2d at 83. While the plaintiffs note and the
defendants acknowledge that the Southern District of Florida
received more filings than did the District of Columbia in 2008 -14-
and 2009 (Defs.’ Mot. at 19; Pls.’ Opp’n at 17), the defendants
point out that “the median time interval from filing to
disposition of cases is longer in D.C. than it is in Florida.
(Defs.’ Mot. at 19, Ex. E.) This factor, then, is also neutral.
Defendants persuasively argue that the “local nature of this
case is the decisive factor in the balancing of interests
pursuant to 28 U.S.C. 1404(a).” (Defs.’ Reply at 2.) “[T]he
interests of justice are promoted when a localized controversy is
resolved in the region that it impacts.” Nat’l Wildlife Fed’n v.
Harvey, 437 F. Supp. 2d 42, 50 (D.D.C. 2006). “Considerations
affecting whether a controversy is local in nature include ‘where
the challenged decision was made; whether the decision directly
affected the citizens of the transferee state; the location of
the controversy, . . . and whether there was personal involvement
by a District of Columbia official.’” Intrepid-Potash, 669 F.
Supp. 2d at 98-99 (citing Otay Mesa Property L.P., v. U.S. Dep’t
of Interior, 584 F. Supp. 2d 122, 126 (D.D.C. 2008). Here, as is
noted above, the substantive decision reflected in the Issue
Paper was made in Florida.2 The location of the controversy is
the EAA, which is in the Southern District of Florida. Citizens
of Florida, not the District of Columbia, will be most directly
affected by the Corps’ jurisdictional determinations regarding
2 Plaintiffs’ cause of action makes a procedural attack on the Stockton memorandum endorsing the decision. -15-
proposed nonagricultural activities in the EAA. While there was
personal involvement by an official in D.C. after the Issue Paper
was released, it was brief and limited, in stark contrast to the
involvement of officials in cases where transfer was denied.
See, e.g., Wilderness Society v. Babbitt, 104 F. Supp. 2d 10, 14
(D.D.C. 2000) (denying transfer of a case pertaining to the
national petroleum reserve where there were public meetings
regarding the reserve held in Washington, D.C., and where the
Secretary of the Interior visited the area at issue, met with
interested parties, signed the record of the decision, and gave a
public briefing about his decision).
The public factors, then, weigh in favor of transferring
this case to the Southern District of Florida.
CONCLUSION AND ORDER
The balance of private and public interests weighs in favor
of transfer. Accordingly, it is hereby
ORDERED that defendant’s motion [5] to transfer venue be,
and hereby is, GRANTED. The Clerk is directed to transfer this
case to the United States District Court for the Southern
District of Florida. It is further
ORDERED that defendants’ motion [19] to extend time to
respond to plaintiffs’ motion for a preliminary injunction and
stay briefing on plaintiffs’ motion for summary judgment be, and
hereby is, GRANTED IN PART and DENIED WITHOUT PREJUDICE IN PART. -16-
Defendants shall have until July 26, 2010 to respond to
plaintiffs’ motion for a preliminary injunction. Defendants’
request for a stay is denied without prejudice to renewing it
upon transfer. All remaining motions are left for decision by
the transferee court.
SIGNED this 20th day of July, 2010.
/s/ RICHARD W. ROBERTS United States District Judge