UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION

GORMAN COMPANY, LLC, et al., ) ) Plaintiffs, ) ) V. ) London Civil No. 6:10-228-GFVT ) Pikeville Civil No. 7:10-125-GFVT UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al., ) ) Defendants, ) ) and ) ) MEMORANDUM OPINION KENTUCKY COAL ASSOCIATION, et al., ) & ORDER ) V. ) ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al., ) ) Defendants. ) ) *** *** *** *** These matters are before the Court on the Motion to Transfer [R. 5] filed by Defendants

the United States Environmental Protection Agency (“EPA”) and the United States Army Corps

of Engineers (“Corps) (collectively, the “United States”) in the Gorman action, and the Motion to

Transfer or, in the Alternative, to Reassign [R. 15] filed by the Defendants in the Kentucky Coal

Association (“KCA”) action. In both, the movants seek transfer to the United States District

Court for the District of Columbia so that the cases may be consolidated with a related case

pending in that jurisdiction, National Mining Ass’n v. Jackson, Civ. No. 1:10-cv-01220-RBW

(D. D.C.). In the KCA action, the Defendants alternatively seek consolidation with Gorman in

the Eastern District of Kentucky. The Court heard oral arguments on the motions to transfer during a joint telephonic

conference held December 7, 2010. Thereafter, the Court entered Orders [10-228, R. 18; 10-125,

R. 36] staying both cases pending the District of Columbia court’s ruling on a motion to dismiss

pending in the National Mining Association (“NMA”) case. In staying Gorman and Kentucky

Coal Association, this Court noted that the D.C. court could grant the motion to dismiss on

grounds applicable to the NMA that would not apply to the Plaintiffs in the Kentucky cases.

Therefore, it made sense to reserve fully considering and ruling on the motions to transfer until

the motion to dismiss had been resolved.

On January 14, 2011, United States District Judge for the District of Columbia Reggie B.

Walton issued his opinion denying the motion to dismiss filed by the Defendants in the NMA

action. See National Mining Ass’n v. Jackson,

(D. D.C. Jan. 14, 2011).

In the same opinion, Judge Walton resolved the Plaintiff’s motion for a preliminary injunction.

Id. at 8-16. Although he found that the Plaintiff had demonstrated a likelihood of success on the

merits, he ultimately denied the motion on the ground that the Plaintiff had not demonstrated

irreparable harm. See id.

Following Judge Walton’s decision, a motion was filed in the Gorman and KCA cases to

advance the status conference previously scheduled for March 16, 2011; all parties consented to

the motion. [10-228, R. 19; 10-125, R. 27.] Accordingly, the Court conducted a telephonic

status conference on February 16, 2011. During the hearing, the government defendants renewed

their motions to transfer. The Plaintiffs in both cases stated that they continue to oppose transfer.

After hearing final arguments from both parties on the issue, the Court took the matter under

advisement. For the reasons that follow, the Court grants the motions and transfers both Gorman

2 and KCA to the District of Columbia.

I.

Plaintiffs Gorman Company, LLC, Kycoga Company, LLC, Black Gold Sales, Inc.,

Kentucky Union Company, and Hazard Coal Corporation filed suit seeking declaratory and

injunctive relief on August 10, 2010. [10-228, R. 1.] According to the Plaintiffs, they own land

containing significant coal reserves that they lease to mining operators, and they have incurred

and stand to further incur significant and irreversible harm as a result of the EPA’s June 11, 2009

issuance of Enhanced Coordination Process (“EC Process”) memoranda and April 1, 2010

issuance of a memorandum entitled “Detailed Guidance: Improving EPA Review of Appalachian

Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy

Act, and the Environmental Justice Executive Order” (“Detailed Guidance”). [Id. at ¶¶ 1-2.]

Specifically, the Plaintiffs challenge a series of EPA and Corps actions that they contend “have

unlawfully obstructed Clean Water Act permitting processes for coal mining,” namely the

processes for obtaining Section 402 permits, which govern pollutants that are assimilated by

receiving waters, and Section 404 permits, which authorize the discharge of material that fills or

displaces receiving waters. [Id. at ¶¶ 2, 19.] The Plaintiffs allege that these actions “have

imposed insurmountable technical and economic burdens on the coal mining industry, effectively

shutting down surface coal mining (and possibly significant underground coal mining)

throughout much of Central Appalachia, including the areas in which Plaintiffs own mineral

interests.” [Id. at ¶ 1.]

The Plaintiffs bring their claims pursuant to Section 702 of the Administrative Procedure

Act (“APA”). [Id. at ¶ 1.] Their Complaint contains eleven counts. [See id. at ¶¶ 95-145.]

3 Among these counts are claims that the Detailed Guidance and the EC Process constitute

legislative rules that were not properly promulgated under the APA [id. at ¶¶ 95-97, 101-103]

and claims that the Detailed Guidance violates the Clean Water Act (“CWA”), the National

Environmental Policy Act (“NEPA”), and the Surface Mining Control and Reclamation Act

(“SMCRA”) [id. at ¶¶ 113-122, 129-141]. The Plaintiffs seek relief, including an injunction

restraining the Defendants from implementing, applying, or enforcing the EC Process and the

Detailed Guidance. [Id. at 41-42.]

Before the Gorman case was filed, on July 20, 2010, the National Mining Association

filed its lawsuit in the United States District Court for the District of Columbia. [10-228, R. 1,

Attach. 2.] The NMA’s complaint and the Complaint in the case at bar name the same

defendants and challenge the same regulatory actions. [See id., Attach. 2.] Indeed, the eleven

counts contained in the NMA’s complaint and the Complaint in the instant action are identical,

and the same relief is sought. [Compare 10-228, R. 1 with R. 1, Attach. 2.]

On October 18, 2010, Plaintiff Kentucky Coal Association also filed suit seeking

declaratory and injunctive relief.1 [10-125, R. 1.] Like the Plaintiffs in Gorman and National

Mining Association, the KCA challenges the EPA’s use of the Detailed Guidance. [Id.] The

KCA’s Complaint, however, is much narrower. [See id.] It specifically challenges only the

EPA’s use of the Detailed Guidance in its oversight of the Commonwealth of Kentucky’s

issuance of National Pollutant Discharge Elimination System (“NPDES”) permits under Section

402 of the Clean Water Act. [Id.] Further, the KCA’s complaint contains only two counts. [See

1 The Commonwealth of Kentucky and the City of Pikeville have intervened as Plaintiffs in the KCA suit.

4 id.] In its first count, the KCA claims in part that the Detailed Guidance amounts to a legislative

rule that the EPA has adopted in violation of the Administrative Procedure Act, as the EPA failed

to subject the Detailed Guidance to the procedural requirements of public notice and comment

rulemaking. [Id. at ¶ 60.] In its second count, the KCA asks the Court to enjoin and restrain the

EPA “from utilizing the Detailed Guidance in its oversight of Section 402 KPDES permit

decisions, and from implementing the significant changes to the Section 402 KPDES program

discussed in the Detailed Guidance unless and until it complies with federal law and/or public

notice and comment rulemaking.” [Id. at ¶ 64.] These claims, of course, are similar to claims

raised by the Plaintiffs in Gorman and National Mining Association.

II.

A. The Gorman Case

Under

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

of justice, a district court may transfer any civil action to any other district or division where it

might have been brought.”2 In reviewing motions made pursuant to § 1404(a), courts consider a

number of factors,

including (1) convenience of the parties and the witnesses, (2) accessibility of sources of proof, (3) the costs of securing testimony from witnesses, (4) practical problems associated with trying the case in the least expensive and most expeditious fashion, and (5) the interests of justice. Other factors include (1) the relative congestion in the courts of the two forums, (2) the public’s interest in having local controversies adjudicated locally, (3) the relative familiarity of the two courts with the applicable law, (4) the plaintiff’s original choice of forum, and (5) whether the parties have agreed to a forum selection clause.

Kentucky Speedway, LLC v. National Ass’n of Stock Car Auto Racing, Inc.,

,

2 The Plaintiffs in Gorman and Kentucky Coal Association do not dispute that this lawsuit could have been brought in the District of Columbia.

5 755 (E.D. Ky. 2005) (citations and internal citations omitted). Thus, § 1404(a) “‘place[s]

discretion in the district court to adjudicate motions for transfer according to an individualized

case-by-case consideration of convenience and fairness.’” Id. at 754 (quoting Stewart

Organization, Inc. v. Ricoh Corp.,

(1988). Further, the burden of showing the

desirability of transfer is generally placed on the moving party. See Mead Data Central, Inc. v.

West Publishing Company,

(S.D. Ohio 1987); Cowden v. Parker &

Associates, Inc.,

, at *2 (E.D. Ky. Feb. 22, 2010) (citation omitted).

The Gorman Plaintiffs emphasize the weight given to their choice of forum. [R. 9 at 5-

7.3] They correctly note that “a plaintiff’s choice of forum is ordinarily entitled to considerable

weight.” Cowden,

, at *2. And “[a]s a result, ‘[u]nless the balance is strongly

in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’”

(quoting Nicol v. Koscinski,

(6th Cir. 1951)). But the cases cited by the Plaintiffs

that give controlling weight to the plaintiffs’ choice of forum do not involve a duplicative or

related case filed first in the proposed transferee jurisdiction; rather, transfer was sought on such

grounds as forum non conveniens.4 See Sun Oil Co. v. Lederle,

(6th Cir. 1952);

3 Citations to the record in this section reference Civil Case No. 6:10-cv-228. 4 In United States v. Cinemark USA, Inc.,

(N.D. Ohio 1999), there were two ongoing lawsuits involving the same parties, but the court determined that those lawsuits were not duplicative before declining transfer. In the proposed transferee district, Cinemark filed suit against the Department of Justice (DOJ) and others, arguing that the DOJ’s “promulation of a change in the law without prior notice, and its attempt to enforce its new rule retroactively, [were] violations of the APA, the ADA, and the Constitution.”

. In the case before the Northern District of Ohio, on the other hand, the United States filed suit against Cinemark, alleging that Cinemark had “violated the ADA by designing, constructing, and/or operating movie theaters in Ohio and throughout the United States that deny access to persons with disabilities who use wheelchairs.”

. Thus, there were no common issues of law and fact between the two cases. In contrast, here the Gorman and NMA suits raise the same

6 Nicol v. Koscinski,

(6th Cir. 1951); Int’l Union Elec. Radio & Mach. Workers, CIO

v. Un. Elec. Radio & Mach. Workers of Am.,

(6th Cir. 1951); Rutherford v.

Goodyear Tire and Rubber Co.,

(W.D. Ky. 1996); Blane v. Am. Inventors

Corp.,

(M.D. Tenn. 1996); Hanning v. New England Mut. Life Ins. Co.,

(S.D. Ohio 1989); Capital Consultants Corp. v. Charles Williams Real Estate

Inv. Corp.,

(E.D. Tenn. 1972); Crawford Transport Co. v. Chrysler Corp.,

(E.D. Ky. 1961).

Here, the Court is persuaded that the interests of justice require transfer. A lawsuit

naming identical defendants and asserting identical claims was filed in the District of Columbia

before the instant lawsuit commenced. In Continental Grain Co. v. The FBL-585,

(1960), the Supreme Court stated that “[t]o permit a situation in which two cases involving

precisely the same issues are simultaneously pending in different District Courts leads to the

wastefulness of time, energy, and money that § 1404(a) was designed to prevent.” Further,

according to the Sixth Circuit, “‘[a]s between federal district courts, . . . though no precise rule

has evolved, the general principle is to avoid duplicative litigation.’” Smith v. S.E.C.,

, 361 (6th Cir. 1997) (quoting Colorado River Water Conservation Dist. v. United States,

(6th Cir. 1997)). When presented with a duplicative suit, federal “courts often

proceed . . . under the rule of thumb that the entire action should be decided by the court in which

an action was first filed.”

(citation omitted). This “first-to-file” rule “is a ‘well-established

doctrine that encourages comity among federal courts of equal rank.’” Ables & Hall Builders v.

U.S. Bank, N.A.,

, at *1 (W.D. Ky. May 23, 2008) (quoting AmSouth Bank v.

issues and make the same claims.

7 Dale,

, 791 n. 8 (6th Cir. 2004)).

The Plaintiffs contend that the first-to-file rule only applies when two or more suits

contain identical parties. [R. 9 at 16.] Even the case cited by the Plaintiffs in support of this

contention, however, states that the rule applies “when suits involving substantially the same

issues and parties are filed in courts of concurrent jurisdiction . . . .” Burrows v. Fed. Ins. Co.,

, at *2 (E.D Ky. July 21, 2005) (emphasis added). If both the instant lawsuit

and the D.C. action are permitted to proceed in different courts, “[t]wo federal district courts

would be considering identical issues, thus wasting the time of lawyers and judges [and] risking

inconsistent results and confusing remedies . . . .” Ables & Hall Builders,

, at

*2. In general, the first-to-file rule appears to be a fair way to avoid these adverse consequences

of duplicative litigation.

Citing Mead Data Central, Inc. v. West Publishing Co.,

(S.D. Ohio

1987), the Plaintiffs argue that “the mere specter of potentially inconsistent verdicts is of little-to-

no consequence in deciding to disturb a plaintiff’s forum selection by transferring the case to

another forum.” [R. 9 at 11.] Mead Data Central was an antitrust action filed against West

Publishing Company (“West”) in the Southern District of Ohio.

. West

sought transfer of the action to the District of Minnesota, where two “arguably related actions”

were pending.

In the first Minnesota action, West sought a declaratory judgment preventing

Mead Data Central (“MDC”) from infringing upon certain copyrights allegedly held by West.

The Ohio court, considering the motion to transfer, noted that “[i]t is true that MDC asks this

Court to declare that West’s copyright claims to judicial opinions are invalid and that West asks

the Minnesota Court to declare that West’s copyright claims to judicial opinions are valid.”

at

8 1464. The court found, however, that because the parties in both cases were identical and thus

collateral estoppel was available, conflicting results were “impossible as a legal matter.”

The

court therefore concluded that the possibility of conflicting results did not compel transfer.

In the second Minnesota action, Bancroft-Whitney Company sought a declaration that

West’s copyrights in its annotated compilation of Texas statutes were invalid.

. The

Ohio court found that because the Bancroft-Whitney action was “extremely narrow in its scope”

raising questions of law, fact, and evidence dissimilar from the antitrust action before it, it could

not “conclude that judicial economy and efficiency would best be served by requiring that the

two cases be heard within the same court.”

. Additionally, the Court noted that it

could not “conclude that the specter of inconsistent results is dispositive with regard to the issue

of transfer.”

Clearly, the transfer issue in the case at bar is very different from the transfer issue faced

by the Southern District of Ohio in Mead Data Central. Because the Plaintiffs in the instant suit

and the D.C. action are not the same, inconsistent results are not a legal impossibility. Further,

the instant suit does not raise questions of law, fact, and evidence dissimilar from the D.C.

action. Accordingly, the Court does not find any language in Mead Data Central about the mere

“specter of inconsistent results” persuasive.

The Plaintiffs argue that the EPA regulations at issue in this case will have no effect on

the citizens of the District of Columbia, but will have “dire consequences” for the people who

live in this District and throughout the Commonwealth. [R. 9 at 9-10.] The Plaintiffs claim that

numerous federal courts have either transferred venue or denied the transfer of venue based upon

the public’s interest in “having controversies that have local consequences decided in those local

9 communities.” [Id. at 10.] In the cases cited by the Plaintiffs in support of their argument,

however, the courts deciding the issue of transfer did not have to take into consideration a

duplicative lawsuit pending in another jurisdiction. See Cowden,

; Nat. Wildlife

Federation v. Harvey,

(D. D.C. 2006); Sierra Club v. Flowers,

(D. D.C. 2003); Sierra Club v. Van Antwerp,

(D. D.C. 2007).

Additionally, in Nat. Wildlife Federation, the plaintiffs alleged that the Corps violated the

Endangered Species Act through its water management schedule for Lake Okeechobee in

southern Florida,

, and in Flowers, the Plaintiffs alleged that the Corps and

the Fish and Wildlife Service violated “several federal environmental statutes by issuing mining

permits for certain Everglades wetlands in southern Florida,”

. Thus, in

these cases, the impact of the suit was purely local. Here, on the other hand, the Plaintiffs state

in their Complaint that the actions of the Defendants affect permits “associated with coal mining

projects proposed within six states: Ohio, Pennsylvania, Tennessee, Virginia, Kentucky, and

West Virginia.” [R. 1 at ¶ 68.]

As for the factors such as the convenience of parties and witnesses, accessibility of

sources of proof, and the costs of securing testimony from witnesses, the Court agrees with

District Judge John T. Copenhaver, Jr., in the Southern District of West Virginia that these

factors are “near neutral,” as “the judicial inquiry in these cases” is likely to “be based

exclusively on the administrative record.”5 Huffman v. United States Environmental Protection

Agency,

, at *5 (S.D. W.Va. Jan. 31, 2011). Judge Copenhaver transferred a

5 As for the relative congestion in the courts of the two forums, the Court finds that this factor is a nonissue. Matters that have arisen in Gorman, KCA, and National Mining Association have been resolved expeditiously by both this Court and the D.C. court.

10 case challenging the Detailed Guidance to the District of Columbia for its consolidation with the

NMA case on January 31, 2011.6 See

. Like the Court does here, Judge Copenhaver

found that the defendants in his case met their burden of proving the desirability of transfer, as

the significance of the plaintiffs’ choice of forum was outweighed by the interests of justice.

.

It is particularly worth noting Judge Copenhaver’s comments regarding the different

interests and different litigation strategies that may be pursued by the plaintiffs in the NMA case,

the Plaintiffs in the Gorman and Kentucky Coal Association actions, and the plaintiffs in the case

before him:

Regarding the integrity of the judicial process, one would expect the defendants in the three different districts to pursue a unified approach. The same is not as easily said for their plaintiff counterparts. There is no overlap among the respected counsel on the plaintiffs’ side, even in the Gorman and KCA actions in Kentucky. It seems certain then that all of these different lawyers may pursue differing litigation strategies, perhaps resulting in arguments and authorities being presented to one or some of the district judges but not their judicial counterpart(s). If those variances end up impacting the decisional law, both the judicial process and settled notions of fairness will suffer. That outcome . . . can easily be avoided by transfer.

. Here, during the February teleconference, the Plaintiffs explained that they oppose

transfer in part because they have interests different from the NMA. Like Judge Copenhaver,

however, this Court finds that the Plaintiffs’ varying interests and litigation strategies are factors

that weigh in favor of transfer, not against it.7 If one court has the benefit of hearing all the

6 At the telephonic status conference held on February 16, 2011, the Defendants made the Court aware that the D.C. court had granted their motion to have the Huffman case consolidated with the NMA action. 7 While the Court generally agrees with Judge Copenhaver’s analysis, it must respectfully disagree with the suggestion that the District of Columbia courts have a “peculiar expertise in

11 arguments, it will be better able to make a fully informed decision. Thus, the Court will transfer

the Gorman action to the District of Columbia.

B. The KCA Case

As noted previously, the KCA case is not identical to Gorman. Its focus is narrower, and

the Commonwealth of Kentucky and the City of Pikeville have intervened as parties. Notably,

the Commonwealth’s Intervening Complaint alleges that the EPA’s objection to Kentucky’s

NPDES permits on the basis of the Detailed Guidance violates the Tenth Amendment rights of

the Commonwealth. [See 10-125, R. 10 at 28.] Ultimately, however, the Court finds that KCA’s

differences do not change the analysis made above. In the end, like the NMA and Gorman

actions, KCA targets the validity of the Detailed Guidance. Thus, “[i]rrespective of . . . the

particular effects that defendants’ policies have had in” the Commonwealth, if the Detailed

Guidance is declared invalid, “be it in the D.C. District Court, this court, or some other,” its

effects on Kentucky’s “water quality and surface mining policies are practically at an end absent

a successful appeal.” See Huffman,

, at *6.8 Thus, in the interests of judicial

integrity and avoiding inconsistent results, it makes sense for one court to resolve the issue.

Moreover, although a Kentucky federal court is more familiar and better able to handle

issues of Kentucky law than is a District of Columbia federal court, see West American Ins. Co.

v. Miller,

, at *4 (E.D. Ky. Mar. 31, 2010), the Court finds that it is unlikely

administrative law” that may make them better suited to hear these cases. Huffman,

, at *7, n. 8. 8 In Huffman, the Plaintiff is Randy C. Huffman, in his official capacity as Cabinet Secretary of the West Virginia Department of Environmental Protection, acting on behalf of the State of West Virginia.

.

12 that the D.C. court will need to decide issues of Kentucky law in the KCA case, and, if it does,

any such issues would be minimal.

With the intervention of the Commonwealth and the City of Pikeville, the Plaintiffs in

KCA perhaps have a stronger argument regarding the localized interest represented by the

controversy. Again, however, the Court notes that the main case cited by the Plaintiffs in support

of that argument, Kentucky Speedway, LLC v. Nat’l Ass’n of Stock Car Auto Racing, Inc.,

(E.D. Ky. 2005), involved a motion to transfer on the basis of a forum selection

clause, not on the basis of a related case pending in the proposed transferee jurisdiction.

Therefore, the Court will transfer the KCA case to the District of Columbia as well.

III.

According, for the reasons stated above, it is hereby ORDERED as follows:

1. The Motion to Transfer [R. 5] filed in Gorman Company, LLC, et al. v. United

States Environmental Protection Agency, et al., Civil Case No. 6:10-228-GFVT, is GRANTED,

and that action is transferred to the United States District Court for the District of Columbia for

all further proceedings; and

2. The Motion to Transfer [R. 15] filed in Kentucky Coal Association, et al. v.

United States Environmental Protection Agency, et al., Civil Case No. 7:10-125-GFVT, is

GRANTED, and that action is transferred to the United States District Court for the District of

Columbia for all further proceedings.

This the 24th day of February, 2011.

13 14