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.

(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;

(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

(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

(a) ‘[f]or the convenience of parties and witnesses, in the

interest of justice[.]’” Fanning v. Trotter Site Preparation,

LLC,

(D.D.C. 2009) (citing

(a) and Piper Aircraft Co. v. Reyno,

(1981)). The moving party carries the burden of showing that

transfer is warranted. See Montgomery v. STG Int’l, Inc.,

, 32 (D.D.C. 2008). “The decision whether or not to

transfer the case to another judicial district pursuant to

(a) is discretionary.” In re DRC, Inc.,

(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.,

(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.”

(a) (2006); see also Robinson v. Eli Lilly and

Co.,

(D.D.C. 2008). 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). 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,

(D.D.C. 2009) (quoting Stewart Org. Inc. v.

Ricoh Corp.,

(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.,

(D.D.C. 2009) (quoting Demery,

).

“‘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,

(quoting

Demery,

). 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.,

(D.D.C. 2005); Trout Unlimited v. U.S.

Dep’t of Agric.,

(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,

(D.D.C. 2007) (citing Reiffin v. Microsoft Corp.,

(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,

(D.D.C. 2008) (citing

Piper Aircraft,

-56 and Zakiya v. United States,

(D.D.C. 2003)); see also Shawnee Tribe v.

United States,

(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,

(D.D.C. 2009); see also

Comptroller of Currency v. Calhoun Nat’l Bank,

,

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,

(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,

(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,

(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,

(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,

(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),

, 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,

(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,

(quoting Cameron v. Thornburgh,

(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,

. 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,

(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,

(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,

(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