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New Hope Power Co. v. United States Army Corps of Engineers

July 20, 2010

NEW HOPE POWER COMPANY, ET AL., PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL., DEFENDANTS.



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

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 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 jurisdiction*fn1 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.)

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.)

Under 33 C.F.R. §§ 320.1(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 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 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 28 U.S.C. § 1404(a) '[f]or the convenience of parties and witnesses, in the interest of justice[.]'" Fanning v. Trotter Site Preparation, LLC, 668 F. Supp. 2d 60, 62 (D.D.C. 2009) (citing 28 U.S.C. § 1404(a) and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981)). The moving party carries the burden of showing that transfer is warranted. See Montgomery v. STG Int'l, Inc., 532 F. Supp. 29, 32 (D.D.C. 2008). "The decision whether or not to transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary." In re DRC, Inc., 358 Fed. Appx. 193, 194 (D.C. Cir. 2009). To adjudicate a motion to transfer, the district court conducts an individualized, "factually analytical, case-by-case determination of convenience and fairness." SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (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."

28 U.S.C. § 1404(a) (2006); see also Robinson v. Eli Lilly and Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008). Under 28 U.S.C. § 1391,

[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 ...


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