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Intrepid Potash-New Mexico, LLC v. United States Dep't of the Interior

November 18, 2009


The opinion of the court was delivered by: Richard W. Roberts United States District Judge


Intrepid Potash-New Mexico, LLC brings claims under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., against the United States Department of Interior ("DOI"), the DOI Secretary in his official capacity,*fn1 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 28 U.S.C. § 1404(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.


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; 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 28 U.S.C. § 1404(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.)



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 is made under 28 U.S.C. § 1406, 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, 259 F. Supp. 2d 39, 59 (D.D.C. 2003); see also Trans World Airlines, Inc. v. C.A.B., 339 F.2d 56, 63-64 (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 28 U.S.C. § 1404(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., 487 U.S. 22, 29 (1988) (internal quotation marks omitted).

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., 117 F. Supp. 2d 515, 517-18 (E.D. Va. 2000); Commonwealth Edison Co. v. Train, 71 F.R.D. 391, 394 (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, 711 F.2d 291, 294 (D.C. Cir. 1983) (quoting Dubin v. United States, 380 F.2d 813, 816 (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 and to protect litigants, witnesses and the public against unnecessary inconvenience and expense[.]" Van Dusen v. Barrack, 376 U.S. 612, 616 (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., 483 F. Supp. 916, 918 (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, 277 F. Supp. 2d 89, 90 (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., 767 F.2d 1007, 1017 (D.C. Cir. 1985))).

Intrepid relies upon dictum in a footnote in Consumers Union of U.S., Inc. v. Consumer Product Safety Comm'n, 590 F.2d 1209 (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 change the venue of a suit[,]" id. 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. 339 F.2d at 63-64. 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, 496 F. Supp. 2d 137, 141 n.3 (D.D.C. 2007) (noting that "a ...

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