UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _____________________________ ) INTREPID POTASH-NEW ) MEXICO, LLC, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-2218 (RWR) ) UNITED STATES DEPARTMENT OF ) THE INTERIOR, et al., ) ) Defendants. ) _____________________________ )

MEMORANDUM OPINION AND ORDER

Intrepid Potash-New Mexico, LLC brings claims under the

Administrative Procedure Act (“APA”),

et seq.,

against the United States Department of Interior (“DOI”), the DOI

Secretary in his official capacity,1 and the United States Bureau

of Land Management (“BLM”), asserting that the decision by the

Interior Board of Land Appeals (“IBLA”) to approve permits to

drill oil and gas wells on protected federal land violates

federal law. Yates Petroleum Corp. intervened as a defendant and

now moves to transfer venue. Because Yates is not barred from

moving for a transfer under

(a) and has shown

that transferring venue to the District of New Mexico is in the

interest of justice, Yates’ motion to transfer will be granted.

1 Ken Salazar is substituted for Dirk Kempthorne under Fed. R. Civ. P. 25(d). -2-

BACKGROUND

Potash is an essential ingredient in agricultural

fertilizer, and the federal government set aside land in New

Mexico to protect and conserve potash deposits. (Compl. ¶¶ 2-3.)

Intrepid “explores for, mines, and mills potash ore within the

approximately 497,000-acre Potash Area” in New Mexico. (Id.

¶ 7.) Oil and gas resources underlie the potash deposit and

drilling for these energy resources can contaminate potash

deposits. (Id. ¶¶ 13-14.) In 1986, the DOI issued an order that

set forth “how the federal government will administer the

development of the potash and oil and gas resources on federal

lands in the Potash Area and resolve conflicts between oil and

gas production and potash mining.” (Id. ¶ 23.)

Yates filed applications for permits to drill oil and gas

wells located within the New Mexico potash area. (Id. ¶ 50.)

The BLM field office in Carlsbad, New Mexico approved the

applications for permits to drill, finding that the proposed

drilling would have minimal environmental impacts. (Id. ¶ 59.)

The state director for the New Mexico BLM office signed approvals

for the applications for permits to drill and declined Intrepid’s

request to reconsider or stay the decision. (Id. ¶¶ 60, 64.)

Intrepid appealed the state director’s approval of Yates’

applications to the IBLA, which is located in Virginia, but the

IBLA affirmed the state director’s decision. (Id. ¶¶ 65, 69; -3-

Ex. A at 1.) Intrepid, a New Mexico corporation, has principal

offices in Colorado. (Yates’ Reply to Pl.’s Opp’n (“Yates’

Reply”), Ex. 1 at 1.) The federal defendants are located in the

District of Columbia, and Yates is headquartered in New Mexico.

(Yates’ Mem. in Supp. of Mot. to Transfer Venue (“Yates’ Mem.”)

at 7.)

Intrepid brings APA claims arguing that the IBLA decision

violates the 1986 order, the National Environmental Policy Act

(“NEPA”), and the Federal Land Policy and Management Act.

(Compl. ¶¶ 70, 104-15, 119.) Yates intervened as a defendant and

moves to transfer the action to the District of New Mexico under

(a). (Yates’ Mem. at 2.) Intrepid contends that

an intervenor-defendant waives all challenges to venue and that

even if Yates’ motion is considered, a transfer is unwarranted in

this case. (Pl.’s Mem. of P. & A. in Opp’n to Yates’ Mot. to

Transfer Venue (“Pl.’s Opp’n”) at 2-3.) The federal defendants

assert that venue here is “appropriate and lawful[,]” but they

did not file any opposition to Yates’ motion. (Mar. 26, 2009

Joint Report for Scheduling Conference at 2.)

DISCUSSION

I. YATES’ CHALLENGE TO VENUE

Intrepid argues that Yates cannot object to venue because

Yates intervened and “acknowledge[d] that venue is proper in this

District[.]” (Pl.’s Opp’n at 5.) A challenge to improper venue -4-

is made under

, which states that “[t]he district

court of a district in which is filed a case laying venue in the

wrong division or district shall dismiss, or if it be in the

interest of justice, transfer such case to any district or

division in which it could have been brought.” Courts have noted

that an intervenor-defendant cannot assert that venue is improper

and move for a transfer of venue under § 1406 because such a

defendant voluntarily participated in the case and assumed the

risk that a court could order relief or enter a judgment against

it. Pharm. Research & Mfrs. of Am. v. Thompson,

(D.D.C. 2003); see also Trans World Airlines, Inc. v.

C.A.B.,

(2d Cir. 1964) (finding that “[v]enue

is a privilege personal to a defendant in a civil suit and a

person intervening on either side of the controversy may not

object to improper venue”).

However, Yates does not contest venue as improper, but seeks

a transfer based on “the convenience of parties and witnesses, in

the interest of justice” under

(a). Section

1404(a) gives “discretion in the district court to adjudicate

motions for transfer according to an individualized, case-by-case

consideration of convenience and fairness.” Stewart Org., Inc.

v. Ricoh Corp.,

(1988) (internal quotation marks

omitted). -5-

While some courts have prevented an intervening defendant

from moving for transfer under § 1404(a), see Beam Laser Sys.,

Inc. v. Cox Commc’ns, Inc.,

(E.D. Va.

2000); Commonwealth Edison Co. v. Train,

(N.D.

Ill. 1976), the court in Western Watersheds Project v. Clarke,

Civil Action No. 03-1985 (HHK), slip op. at *4-7 (D.D.C. July 28,

2004), found that the rationale for preventing an intervening

defendant from challenging venue as improper and seeking a

transfer under § 1406 was inapplicable to a motion for transfer

under § 1404(a). Sections 1404(a) and 1406 have different

purposes. Section 1406 “‘operates when there is an obstacle --

either incorrect venue, absence of personal jurisdiction, or both

-- to a prompt adjudication on the merits in the forum where

originally brought.’” Sinclair v. Kleindienst,

(D.C. Cir. 1983) (quoting Dubin v. United States,

(5th Cir. 1967)). A challenge to improper venue must be

raised in a responsive pleading or before that pleading is filed.

Fed. R. Civ. P. 12(b). An intervenor-defendant’s motion to

transfer for improper venue under § 1406 “would occur after a

plaintiff had the right to expect no further objections to venue”

and would create the risk that defendants “may abuse the rule by

seeking out intervenors to dismiss the cases against them.”

Western Watersheds, slip. op. at *6. By comparison, “the purpose

of [§ 1404(a)] is to prevent the waste of time, energy and money -6-

and to protect litigants, witnesses and the public against

unnecessary inconvenience and expense[.]” Van Dusen v. Barrack,

(1964) (internal quotations marks omitted).

For a § 1404(a) motion, “‘there is no claim that venue is

improper as to the original [parties]. Neither is a request to

transfer [under § 1404(a)] waived by the [d]efendant if not

raised prior to or in a responsive pleading.’” Western

Watersheds, slip op. at *6 n.9 (first alteration in original)

(quoting Daily Express, Inc. v. N. Neck Transfer Corp.,

(M.D. Pa. 1979)). Western Watersheds rejected a

“categorical rule barring discretionary transfer motions by

intervenors, largely because no coherent rationale distinguishes

an ‘original’ defendant from a third-party defendant-intervenor

for analysis under § 1404(a).” Id. at *4; see also Blackman v.

District of Columbia,

(D.D.C. 2003)

(stating that generally “‘[w]hen a party intervenes, it becomes a

full participant in the lawsuit and is treated just as if it were

an original party’” (quoting Schneider v. Dumbarton Developers,

Inc.,

(D.C. Cir. 1985))).

Intrepid relies upon dictum in a footnote in Consumers Union

of U.S., Inc. v. Consumer Product Safety Comm’n,

(D.C. Cir. 1978), to support its argument that an intervenor

cannot move to change venue. The footnote stated that “an

intervenor generally is held to have waived his privilege to -7-

change the venue of a suit[,]”

at 1222 n.65, and traced the

principle back to Trans World Airlines, Inc. That case, however,

discussed an intervenor challenging venue as improper, not merely

seeking to change venue for convenience.

.

Neither Consumers Union of U.S., Inc. nor Trans World Airlines,

Inc. directly addressed whether an intervenor-defendant can move

to transfer venue under § 1404(a).

Intrepid also asserts that Yates has waived its right to

move for a transfer of venue. Generally, however, “[a] party who

has waived [its] objection to the propriety of venue by failing

to assert that defense at the proper time is not for that reason

precluded from moving for a change of venue.” 15 C. Wright et

al., Federal Practice & Procedure: Jurisdiction § 3844 at 30-32

(3d ed. 2007) (“Wright”). Even if Yates can no longer argue that

venue here is improper, Yates is not necessarily precluded from

seeking a transfer of venue under § 1404(a). See Great Socialist

People’s Libyan Arab Jamahiriya v. Miski,

,

141 n.3 (D.D.C. 2007) (noting that “a motion to transfer may be

made at any time after the initiation of an action under section

1404(a)” (emphasis added)). Accordingly, Yates’ motion to

transfer will be considered.

II. VENUE

In a motion to transfer a case under § 1404(a), the moving

party has the burden of establishing that a transfer is proper, -8-

Onyeneho v. Allstate Ins. Co.,

(D.D.C.

2006), “and the motion must not be lightly granted.” 15 Wright

§ 3848 at 163. As a threshold requirement, the transferee court

must be in a district where the action “might have been brought.”

(a). If it is, then a court considering the

transfer motion has broad discretion to balance case-specific

factors related to the public interest of justice and the private

interests of the parties and witnesses. Stewart Org., Inc.,

; Demery v. Montgomery County, MD,

(D.D.C. 2009). If the balance of private and public

interests favors a transfer of venue, then a court may order a

transfer.

A. Venue in the District of New Mexico

Under

,

[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.

(e). The District of New Mexico satisfies this

venue statute since Intrepid is challenging the IBLA’s affirmance

of the BLM New Mexico director’s decision to approve applications

by a defendant corporation headquartered in New Mexico for -9-

permits to drill on land that is located in New Mexico. To

qualify as a district where the case might have been brought,

though, the federal district court in New Mexico must also have

personal jurisdiction over the defendants. See Hoffman v.

Blaski,

(1960).

A federal district court can exercise personal jurisdiction

over a defendant on whom process is properly served either when

that defendant would be subject to the jurisdiction of a court of

general jurisdiction in that state, Fed. R. Civ. P. 4(k)(1)(A);

Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.,

(1999), or when jurisdiction is authorized by federal

statute. Fed. R. Civ. P. 4(k)(1)(C). In either case, the

exercise of personal jurisdiction must stem from sufficient

minimum contacts by the defendant with the forum to comport with

due process. Burger King Corp. v. Rudzewicz,

(1985) (noting that the “constitutional touchstone” for personal

jurisdiction is “whether the defendant purposefully established

‘minimum contacts’ in the forum State[,] International Shoe Co.

v. Washington, . . . 326 U.S. [310,] 316 [(1945),] . . . ‘such

that he should reasonably anticipate being haled into court

there’” (quoting World-Wide Volkswagen Corp. v. Woodson,

(1980)).

Yates is a New Mexico corporation that owns thousands of

acres of federal oil and gas leases in the Potash Area in New -10-

Mexico. (See Mem. in Supp. of Yates Petroleum Corp. Mot. to

Intervene at 5.) Yates’ contacts with New Mexico would amply

satisfy constitutional requirements for the exercise of personal

jurisdiction over Yates there. In addition, in a New Mexico

court of general jurisdiction, “[j]urisdiction of the person of

defendant is acquired by the service of process[.]” Bourgeious

v. Santa Fe Trail Stages,

(N.M. 1939) (internal

quotation marks and citation omitted). Thus, the United States

District Court for the District of New Mexico would have personal

jurisdiction over Yates under New Mexico law because Yates is

subject to service of process in the state as a domestic

corporation. See NMRA, Rule 1-004(G)(1)(a).2

With regard to the remaining defendants, a court also may

also assert personal jurisdiction over a defendant served under a

federal statute authorizing nationwide service of process. See

Flynn v. Ohio Building Restoration, Inc.,

(D.D.C. 2003) (“‘Where Congress has authorized nationwide

service of process, a federal court may exercise personal

jurisdiction over any United States resident[.]’”) (citations

omitted); Fed. R. Civ. P. 4(k)(1)(C) (“Serving a summons . . .

2 That rule provides, in relevant part, that service may be made upon “a domestic or foreign corporation . . . by serving a copy of the process to an officer, a managing or a general agent or to any other agent authorized by appointment, by law or by this rule to receive service of process.” NMRA, Rule 1-004(G)(1)(a). -11-

establishes personal jurisdiction over a defendant[] . . . when

authorized by a federal statute.”). Courts are divided over

whether such a defendant must have sufficient minimum contacts

only with the United States generally or with the forum

specifically for the exercise of personal jurisdiction to comport

with due process. Compare, e.g., Bellaire General Hosp. v. Blue

Cross Blue Shield of Mich.,

(5th Cir. 1996)

(concluding that when determining whether exercising personal

jurisdiction over a defendant served under a federal nationwide

service of process statute comports with due process, “the

relevant inquiry is whether the defendant has had minimum

contacts with the United States”) (internal quotation marks

omitted) with Peay v. BellSouth Med. Assistance Plan,

(10th Cir. 2000) (requiring sufficient contacts

with forum state for exercise of personal jurisdiction over

defendant served under federal nationwide service of process

statute to comport with due process). The remaining defendants

here –– two federal government agencies and a federal government

official sued in his official capacity –– are subject to

nationwide service of process. See

(e) (service

of process upon a defendant that is an officer or agency of the

United States “may be made by certified mail beyond the

territorial limits of the district in which the action is

brought”). Because the suit arises out of these defendants’ -12-

management of the oil, gas, and potash deposits in New Mexico

(Pl.’s Opp’n at 1-2), they could reasonably have foreseen being

haled into court in that state. Thus, the United States District

Court for the District of New Mexico could exercise personal

jurisdiction over these defendants under even the more exacting

due process requirements articulated in Peay. Therefore, this

action could have been brought in the transferee district.

B. Private interests

The private interest factors 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. Montgomery v. STG Int’l, Inc.,

(D.D.C. 2008).

A “‘plaintiff’s choice of forum is ordinarily accorded

deference.’” Demery,

(citing Aftab v.

Gonzalez,

(D.D.C. 2009)). “When two

potentially proper venues are involved, the plaintiff[’s] choice

of forum is often accorded substantial deference, particularly

where the plaintiffs have chosen their home forum and many of the

relevant events occurred there.”

However, if a plaintiff is

not a resident of the forum and “most of the relevant events -13-

occurred elsewhere[,]” this deference is weakened. Hunter v.

Johanns,

(D.D.C. 2007).3 Transfer is

supported when “the material events that constitute the factual

predicate for the plaintiff’s claims occurred” in the transferee

district. Kafack v. Primerica Life Ins. Co.,

(D.D.C. 1996).

Regarding the parties’ forum choices and where the claim

arose, Yates asserts that “most of the relevant events, the land,

and the subject matter occurred in or have direct ties to the

District of New Mexico.” (Yates’ Reply at 6-7.) New Mexico has

a substantial connection to the controversy because the land at

issue is entirely within New Mexico, and the BLM field office in

Carlsbad and the New Mexico state director made the original

decisions to approve the drilling applications. (Compl. ¶¶ 59-

60; Pl.’s Opp’n at 8; Yates’ Reply at 5.) See also Southern Utah

Wilderness Alliance v. Norton (“SUWA I”), Civil Action No. 01-

2518 (CKK),

, at *3 (D.D.C. June 28, 2002)

(finding that Utah had a significant connection to that case

3 While Hunter referred to “‘a strong presumption against disturbing plaintiff[’s] initial forum choice[,]’”

(alterations in original) (quoting Pain v. United Techs. Corp.,

(D.C. Cir. 1980)), that formulation actually had greater applicability to motions to dismiss for forum non conveniens before § 1404(a) was enacted allowing transfers more freely than the forum non conveniens doctrine allowed dismissals. See 15 Wright § 3848 at 160-61 (tracing the formulation to Gulf Oil Co. v. Gilbert,

(1947), a forum non conveniens case). -14-

because the land was located in Utah, any decision would most

directly affect Utah residents, and the sale and issuance of the

oil and gas leases was approved by the Utah BLM without any

assistance from the Washington, D.C. BLM office). Intrepid does

not contend that the District of Columbia is its home forum, but

instead asserts that this case has a close nexus to the District

of Columbia because potash reserves are a national issue, “a

national panel of administrative judges, speaking for the

Secretary residing in Washington, D.C., issued the agency

decision here under review[,]” and “each of Intrepid’s three

claims for relief focuses on interpretation of federal statutes,

regulations, or orders.” (Pl.’s Opp’n at 7-9.)

Naming a cabinet secretary or a federal agency does not

alone anchor venue here. “Courts in this circuit must examine

challenges to . . . venue carefully to guard against the danger

that a plaintiff might manufacture venue in the District of

Columbia [because by] naming high government officials as

defendants, a plaintiff could bring a suit here that properly

should be pursued elsewhere.” Cameron v. Thornburgh,

(D.C. Cir. 1993). In Stockbridge-Munsee Cmty. v. United

States,

(D.D.C. 2009), the court gave less

deference to the plaintiff’s choice of forum because “[m]ere

involvement . . . on the part of federal agencies, or some

federal officials who are located in Washington, D.C. is not -15-

determinative” and “[t]hough the administrative action at issue

in [the] case arose in Washington, the only real connection [the]

lawsuit [had] to the District of Columbia [was] that a federal

agency headquartered here . . . is charged with generally

regulating and overseeing the [administrative] process.”

(internal citation and quotation marks omitted).

Courts have deferred to a plaintiff’s choice of this forum

in cases involving a national issue when federal officials in the

District of Columbia had significant involvement in the agency

action. For example, Wilderness Society v. Babbitt,

(D.D.C. 2000), noted that the national petroleum reserve in

Alaska “has consistently been treated as a national resource

despite the special interest of the Alaskan people” and that

Congress had expressed through statute that the reserve was to be

“regulated in a manner consistent with the total energy needs of

the Nation.”

. The national interest in the petroleum

reserve in Alaska was reflected by the public meetings held in

San Francisco and Washington, D.C., the 7,000 comments received

by the agency from all fifty states, and the involvement of

national conservation organizations as plaintiffs.

.

The District of Columbia’s connection was also strengthened

because six plaintiffs had offices in Washington, D.C. and

Secretary Babbitt was personally and substantially involved in

the matter by visiting the area at issue, meeting with interested -16-

parties, signing the record of decision, and briefing the public

about his decision. Id.; see also Greater Yellowstone Coal. v.

Bosworth,

(D.D.C. 2001) (noting that

venue was supported because the plaintiff alleged that officials

in Washington, D.C. were “involved in inter-agency discussions

regarding the reissuance of the HBA grazing permit”).

By contrast, Sierra Club v. Flowers,

(D.D.C. 2003), concluded that the first factor weighed in favor

of transfer because the federal officials in Washington, D.C. did

not play any active role in the decision and the national

significance of the Everglades ecosystem by itself was

insufficient to warrant deference to plaintiff’s forum choice.

; see also SUWA I,

, at *3 (rejecting

plaintiffs’ claim that the case involved a national interest

because “[p]laintiffs [had] not pointed to significant action

taken in Washington, D.C. such as the public hearing held in

Wilderness Soc’y and [had] not demonstrated the type of

substantial personalized involvement by a member of the

Washington, D.C. BLM that supports a finding of ‘meaningful ties’

to this District”). Moreover, even when a federal agency has had

some role in formulating the policy that was applied by a local

agency office, this does not alone support venue when the claims

are centered on the decision of a local agency office. In

Southern Utah Wilderness Alliance v. Norton (“SUWA II”), 315 F. -17-

Supp. 2d 82, 87 (D.D.C. 2004), BLM headquarters officials changed

the agency’s policy concerning leasing lands and had some contact

with the state office regarding the new policy. The court,

though, found these ties to be insufficient to support venue in

Washington, D.C. because the claims did not involve the changes

to agency policy, and the actual lease decisions were made by the

Utah BLM office without any involvement by the Washington D.C.

office. Cf. Akiachak Native Cmty. v. Dep’t of Interior,

(D.D.C. 2007) (stating that the plaintiff’s

choice of venue was given deference because the plaintiff

challenged the validity of a regulation that was formulated

through a rule-making process which occurred in the District of

Columbia).

Intrepid’s claims are focused on the errors of the IBLA’s

decision to affirm the state director’s approval of Yates’

permits. (See Compl. ¶¶ 123-52.) Intrepid does mention past

actions by the Secretary in issuing the 1986 Order in its

complaint. (Compl. ¶ 23.) However, unlike the Wilderness

Society plaintiffs, Intrepid does not allege that the Secretary,

Department of Interior, or BLM in Washington, D.C. played a role

in the decision to approve Yates’ drilling applications. (See

Pl.’s Opp’n at 8 (stating that “BLM officials in New Mexico did

issue the initial decisions approving the Caper wells”); Compl.,

Ex. A at 3 (stating that the “State Director’s decision was based -18-

on an environmental assessment (EA) . . . prepared pursuant to

section 102(2)(C) of [NEPA] . . . and 11 separate Decision

Records/Findings of No Significant Impact (DR/FONSI) issued by

the Field Manager, Carlsbad Field Office”).) No events are

alleged to have occurred in the District of Columbia. The IBLA

may have acted on behalf of the Secretary when it affirmed the

state director’s decision (Compl. ¶ 69), but Intrepid concedes

that the IBLA made its decision in Virginia, not this district.

(Pl.’s Opp’n at 8.)

Moreover, the involvement of federal law also does not alone

create venue. Intrepid relies on Otay Mesa Property L.P. v. U.S.

Dep’t of Interior,

(D.D.C. 2008), which found

that the involvement of federal environmental law was a factor in

favor of venue in the District of Columbia when evaluating the

case’s local interest, but still gave diminished deference to the

plaintiff’s choice of forum because “the connection between the

facts of the controversy and the District of Columbia [was]

attenuated.”

. Likewise, in National Wildlife Fed’n

v. Harvey,

(D.D.C. 2006), the plaintiff

attempted “to link the case to the District of Columbia based on

the fact that the case invokes federal statutes that establish

national standards for endangered species,” but the court found

that “[p]laintiffs’ choice of forum [would] not be afforded

deference ‘simply because [p]laintiffs [brought] an [Endangered -19-

Species Act] claim involving the nationally known Everglades

ecosystem.’”

at 47 (quoting Flowers,

);

see also McGlamry v. Lappin, Civil Action 06-143 (GK),

, at *2 (D.D.C. May 18, 2006) (stating that “‘there is

certainly no reason why all cases involving the construction or

constitutionality of a federal statute should be litigated in the

District of Columbia’” (quoting Starnes v. McGuire,

,

925 n.7 (D.C. Cir. 1974) (en banc))). Bosworth, also cited by

Intrepid, found that a sufficient nexus to the District of

Columbia existed “because both of the plaintiffs’ counts focus on

interpretation of federal statutes, and because federal

government officials in the District of Columbia were involved in

the decision to reissue the [Horse Butte Allotment] grazing

permit[.]”

(emphasis added). Here, while

Intrepid’s case involves federal law, the controversy is centered

solely on Interior’s final decision to approve Yates’

applications for permits to drill on land in New Mexico. Because

the District of Columbia is not Intrepid’s home forum, the land

at issue and BLM’s original decision to approve the applications

for permits to drill are connected to New Mexico, the IBLA

decision was made in Virginia, and the claims do not involve any

action or event that occurred within the District of Columbia,

meaningful ties to this district are lacking, weakening any -20-

deference due Intrepid’s choice of forum, and the first three

private interest factors favor transfer.

Regarding the remaining three private interest factors,

Yates asserts that the District of New Mexico would be more

convenient for parties and for sources of proof because Yates is

headquartered in New Mexico, Intrepid is incorporated in New

Mexico, Intrepid’s counsel is located in Colorado, and all files

and documents are in New Mexico. (Yates’ Reply at 4, 8; Yates’

Mem. at 7.) Intrepid argues that Yates has not shown that

Washington, D.C. is an inconvenient forum and that a copy of the

administrative record is located at the IBLA’s office in Virginia

or in Washington, D.C. (Pl.’s Opp’n at 3.) The convenience to

counsel “is of minor, if any, importance under § 1404(a).”

Islamic Republic of Iran v. Boeing Co.,

(D.D.C. 1979). While New Mexico may be more convenient for

Yates, Yates does not complain that the District of Columbia is

inconvenient. In a case involving review of an agency action,

“the location of witnesses is not a significant factor,” but

“[t]he location of the administrative record, however, carries

some weight[.]” Flowers,

. The parties

agree that there would be no witnesses, but dispute the

administrative record’s current location. (Pl.’s Opp’n at 3;

Yates’ Reply at 8.) However, neither party asserts that the

administrative record would be inaccessible if the case were to -21-

be heard in either district. Given the nature of Intrepid’s

claims, it is unlikely that a transfer would materially affect

the convenience of the parties or witnesses, or the ability to

obtain sources of proof. On balance, these final three private

interest factors favor neither side.

C. Public interests

The public interest factors usually weighed in considering a

motion to transfer include: 1) the transferee’s familiarity with

the governing laws; 2) the relative congestion of each court; and

3) the local interest in deciding local controversies at home.

Liban v. Churchey Group II, L.L.C.,

(D.D.C. 2004).

Yates argues that the District of New Mexico would be more

familiar with Intrepid’s claims because prior cases involving the

1986 order and the potash area have been decided in the District

of New Mexico, including one case that is currently pending

before the United States Court of Appeals for the Tenth Circuit.

(Yates’ Mem. at 8-9.) While that may be true, all federal courts

are presumed to be equally familiar with the law governing

federal statutory claims. SUWA I,

, at *4

(stating that federal courts in the District of Columbia and the

District of Utah were “equally capable of determining issues of

compliance with federal law under NEPA . . . and APA”).

Intrepid’s claims do not involve New Mexico law and Yates does -22-

not argue that Intrepid’s case is related to a currently pending

case in the District of New Mexico. See Bosworth,

(noting “a pending related action in a transferee

forum could support a decision to transfer a case to that

forum”). This factor is neutral.

The parties agree that neither district’s caseload would

likely delay a resolution of this case. (Pl.’s Opp’n at 15;

Yates’ Mem. at 9.) This factor, then, is neutral. However, the

controversy here is more local in nature and centered on New

Mexico than on the District of Columbia. 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.” Otay Mesa Property L.P.,

. While the challenged decision here was

made by IBLA in Virginia, the original BLM decision was made in

New Mexico. (Yates’ Mem. at 9.) Intrepid points to no direct

involvement in the permit decisions by any federal official in

the District of Columbia. (See Pl.’s Opp’n at 15-17.) The

agency’s decision directly affects New Mexico citizens because

fifty percent of royalties received by the federal government for

oil and gas drilling on the land in dispute would go to New

Mexico under

and the drilling would affect the -23-

local economy. (Yates’ Mem. at 9.) The controversy is centered

on property located in New Mexico, and land commonly has been

considered a local interest. See, e.g., SUWA II, 315 F. Supp. 2d

at 88 (stating that “[l]and is a localized interest because its

management directly touches local citizens”). Intrepid’s case

differs from Wilderness Society, which found a controversy over

oil reserves in Alaska to be national in nature, because the

Secretary had personal involvement in the decision, the decision

affected a national energy reserve, five national environmental

groups were involved in the case, legislative history of the

relevant statute reflected a view that the petroleum at issue was

a national resource, and the decision had received national media

attention.

. Therefore, this factor tilts

in favor of transfer.

Accordingly, although venue may lie in the District of

Columbia, the deference given to Intrepid’s choice of forum is

diminished due to the claim’s attenuated connection to this

district, and the balance of the remaining public and private

interests favors a transfer to the District of New Mexico.

CONCLUSION AND ORDER

The balance of public and private interest factors favors

transfer of this case to the District of New Mexico.

Accordingly, it is hereby -24-

ORDERED that the Yates Petroleum Corp.’s motion [10] to

transfer venue be, and hereby is, GRANTED. The Clerk is directed

to transfer this case to the United States District Court for the

District of New Mexico. All pending motions are left for

decision by the transferee court.

SIGNED this 18th day of November, 2009.

/s/ RICHARD W. ROBERTS United States District Judge