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Sierra Club v. Van Antwerp

December 4, 2007

SIERRA CLUB, ET AL. PLAINTIFFS,
v.
LT. GEN. ROBERT L. VAN ANTWERP, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

MEMORANDUM OPINION

Now before the Court comes putative intervenors, Sierra Properties I, LLC, Pasco 54, LTD, Pasco Ranch, Inc., and JG Cypress Creek LLC's ("Intervenors") motion [8] to intervene under Federal Rule of Civil Procedure 24. Plaintiffs do not oppose permissive intervention pursuant to Rule 24(b). Upon consideration of the parties' filings, the applicable law, and the facts of this case, the Court finds that the motion to intervene will be GRANTED.

Upon deciding to grant Intervenors' motion to intervene, this Court next considers defendants' motion [5] to transfer venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). After full consideration of the party's filings, the facts, and applicable law, this Court finds that the motion to transfer venue will be DENIED and that this Court shall retain jurisdiction over this matter.

I. BACKGROUND

Intervenors are developers of Cypress Creek Town Center ("CCTC"), a regional shopping mall with supporting commercial establishments, including retail businesses, hotels, restaurants, cinemas, and multi-family residential housing. The development is located on approximately 507 acres of undeveloped land in Pasco County, Florida. (See Compl. ¶¶ 56--58.) In May 2005, Sierra Properties applied for a Clean Water Act ("CWA") permit pursuant to CWA section 404. (See Intervenors' Mem. at 3.) On October 31, 2005, the Army Corps of Engineers ("Corps") issued a public notice regarding CCTC's proposed filling of approximately 54 acres of wetlands and 10 acres of surface waters with 270,418 cubic yards of fill material. (See Compl. ¶ 82.) At that time, a public comment period began wherein extensive comments were made regarding the environmental impact of the CCTC development. (See id. ¶¶ 84--87.) Following the comment period, the Corps issued an Environmental Assessment finding that CCTC would not cause unacceptable environmental impacts and issued the requested section 404 permit allowing development of CCTC to proceed. (See id. ¶ 88; Environmental Assessment, Ex. A to Intervenors' Mem.)

On October 1, 2007, plaintiffs*fn1 filed suit in this Court against the government defendants alleging improper issuance of the CWA section 404 permit and an improper concurrence letter issued by the United States Fish and Wildlife Service ("FWS") stating that CCTC would not adversely impact four endangered species, the Wood Stork, the Florida Scrub Jay, the Eastern Indigo Snake, and the Manatee. (See Compl. ¶¶ 1, 4.) Plaintiffs' complaint asks this court to find that the section 404 permit was issued in violation of the Endangered Species Act, the CWA, the National Environmental Policy Act, the Administrative Procedure Act, and their accompanying regulations. (See id. ¶ 131.) Thus, plaintiffs request that the Corps' permit and the FWS concurrence letter be remanded to accurately assess impacts to threatened species and to compel compliance with CWA requirements for avoidance and minimization of impacts to wetlands and waters. (See id. ¶5.)

Intervenors filed their motion to intervene on October 16, 2007. Intervenor Sierra Properties is the developer of CCTC and holds the permit in question while each of the other intervenors owns a portion of the CCTC property. (See Intervenors' Mem. at 2.) Intervenors seek intervention as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2), and alternatively ask this Court to grant permissive intervention pursuant to Rule 24(b). (See id. at 4, 10.) Plaintiffs do not oppose permissive intervention under Rule 24(b) but do object to intervention as a matter of right and state that intervenors have not shown how the interests of the government defendants and the intervenors may diverge. (See Pl's Resp. at 4--5.)

Government defendants moved to transfer this matter to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Defendants assert that the matter could have originally been brought in that district, and that the convenience of the parties and witnesses and the interest of justice weigh in favor of transfer. Particularly, the government points to the suit's local Florida impact and state that plaintiffs' choice of forum is entitled to little deference because there is merely an attenuated connection between the controversy and the District of Columbia. (See Pls.' Mot. to Transfer at 4--11.) Additionally, both the government and Intervenors note that plaintiffs' counsel filed a substantially similar lawsuit in the Middle District of Florida-Citizens for Sanity.Com, Inc. v. Antwerp-on June 26, 2007, and filed a notice of voluntary dismissal the following day once the case was assigned to Judge Steven D. Merryday. (See Compl., Ex. 1 to Mot. to Transfer; Notice of Dismissal, Ex. 2 to Mot. to Transfer.) Intervenors cite that case as evidence of "blatant forum shopping" that weighs in favor of this Court transferring venue to the Middle District of Florida. (See Intervenors' Reply at 8.) Plaintiffs respond that this case should not be transferred from the District of Columbia for reasons including: (1) plaintiffs are entitled to a strong presumption in favor of the chosen forum; (2) disposition of this case will be determined on the basis of the administrative record, thus making access to proof and convenience of witnesses irrelevant; and, (3) there is a connection between the subject of this litigation and the District of Columbia. (See Pls.' Opp. to Transfer at 7--18.)

II. ANALYSIS

A. Intervention

1. Legal Standard

Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right and permissive intervention. FED. R. CIV. P. 24. Rule 24(a) provides for intervention as of right, stating that:

[o]n timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect ...


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