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Preservation Society of Charleston, et al v. United States

September 27, 2012

PRESERVATION SOCIETY OF CHARLESTON, ET AL.,
PLAINTIFFS,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION

Plaintiffs Preservation Society of Charleston and South Carolina Coastal Conservation League have brought this action under the Administrative Procedure Act, challenging the United States Army Corps of Engineers' provisional approval of the construction of additional pilings beneath the Union Pier Terminal in Charleston, South Carolina. Plaintiffs fear such construction will facilitate the influx of large cruise ships to the detriment of Charleston's historic district. Defendants now bring the instant Motion to Transfer the case to the District of South Carolina pursuant to 28 U.S.C. § 1404(a). Because the Court finds that the case could have been brought there and that both considerations of convenience and the interests of justice favor transfer, it grants Defendants' Motion.

I.Background

The dispute in this case arises from the Corps' provisional approval of an application by the South Carolina Ports Authority (SPA) to construct additional pilings underneath the Union Pier Terminal in Charleston. See Mot. at 2. The pilings are designed to provide support to elevators and escalators being added in a renovation of Building 322, located at the northern end of the terminal. See id.; Compl., ¶ 30. The parties, however, disagree sharply about the scope and character of the proposed construction work and the potential impacts it might have on the region. Compare Compl., ¶ 1 ("This action challenges the Defendants' decision to authorize construction of a large cruise ship terminal one block from the National Historic Landmark District of Charleston . . . .") with Rep. at 2 ("Defendants unequivocally reject Plaintiff's characterization of the case . . . .").

Although the Court need not resolve these issues for purposes of this Motion, some detail helps to inform the ultimate decision. The Union Pier Terminal is an expansive structure "covering 43 acres of land, acres of pile-supported concrete docks and wharves, more than 600,000 square feet of warehouses, transit sheds, and other port related buildings, and including nearly half a mile of berths" used by shipping and cruise companies for loading and unloading both marine cargo and passenger vessels. See Mot., Exh. A (April 18, 2012, Memorandum for Record). In January 2012, the SPA sought approval for construction of additional pilings under Building 322. See id. Following negotiations with SPA regarding potential environmental impacts, the Corps' Charleston District office provisionally authorized construction of the new pilings under Nationwide Permit 3, issued pursuant to Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403. The Corps' Provisional Authorization is contingent on a Section 401 Water Quality Certification, to be issued by the South Carolina Department of Health and Environmental Control, and a Coastal Zone Management Act "consistency determination," also to be issued by the state. See Mot. at 4. Neither certification process has been completed. See id.

According to Lieutenant Colonel Edward P. Chamberlayne, Commander and District Engineer of the Corps' Charleston District, the agency decisions at issue in this case were made entirely by staff located in Charleston. See Mot., Exh. D (Declaration of Edward P. Chamberlayne), ¶¶ 5-9. Defendants further assert that "while staff from Corps Headquarters and elsewhere were involved in a general advisory capacity, they did not participate in the decision or direct the regulatory process leading to the verified provisional authorization." Id., ¶ 8. For their part, Plaintiffs allege no specific involvement by decisionmakers at the Corps' headquarters in Washington, D.C.

Plaintiffs Preservation Society of Charleston and the South Carolina Coastal Conservation League are two community organizations based in Charleston that seek to preserve, respectively, the "historical, architectural and cultural character" and "natural resources and quality of life" in and around the city. See Compl., ¶¶ 7-8. While the Corps' negotiations with SPA were ongoing, Plaintiffs formally requested that the Corps notify them of "any application for federal permitting and funding relating to cruise ship operations at Union Pier and for the initiation of a . . . consultation process with the opportunity for public participation." Id.,

¶ 35. Plaintiffs allege that the Corps did not respond to this request. Id., ¶ 36. Plaintiffs were subsequently informed of the Provisional Authorization in response to a Freedom of Information Act request. Id., ¶ 40.

After sending a letter to the Corps on May 15, 2012, alleging "numerous violations of law" and urging corrective action, Plaintiffs filed the instant action before this Court on July 2, 2012. Id. Plaintiffs allege that the Corps' "[did] not [consider], [give] the opportunity for public comment upon, or [consult] with other governmental entities concerning: (a) impacts of the project on historic properties or the human or natural environment, (b) alternative locations for a new cruise terminal to reduce such impacts; [and] (c) operational and design options to reduce those impacts . . . ." Id., ¶ 38. In doing so, Plaintiffs allege that the Corps violated Section 106 of the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f, the National Environmental Policy Act of 1969 (NEPA), 40 U.S.C. § 4332(2)(C), the Corps' own permitting regulations, 33 C.F.R. §§ 300 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. As Defendants, Plaintiffs named the Corps, as well as John M. McHugh, Secretary of the Army, and Thomas P. Bostick, Chief of Engineers of the Corps. Defendants now timely bring this Motion to Transfer the case to the United States District Court for the District of South Carolina pursuant to 28 U.S.C. § 1404(a).

II.Legal Standard

Even where a plaintiff has brought its case in a proper venue, a district court may, "for the convenience of parties and witnesses, in the interests of justice . . . transfer [it] . . . to any other district . . . where [the case] might have been brought." 28 U.S.C. § 1404(a). District courts have "discretion . . . to adjudicate motions for transfer according to an 'individualized, case-by-case consideration of convenience and fairness.'" Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). Courts in this circuit are instructed to consider motions to transfer venue favorably, given "[t]he danger that a plaintiff might manufacture venue in the District of Columbia . . . by naming high government officials as defendants . . . ." Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993).

To warrant transfer under § 1404(a), the movant must first show that the plaintiff could originally have brought the case in the transferee district. Van Dusen, 376 U.S. at 622. The movant must also show that "considerations of convenience and the interest of justice weigh in favor of transfer . . . ." Sierra Club v. Flowers, 276 F. Supp. 2d 62, 65 (D.D.C. 2003). This second inquiry "calls on the district court to weigh in the balance a number of case-specific factors," related to both the public and private interests at stake. Stewart Org., 487 U.S. at 29.

III.Analysis

A. Original ...


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