AMIT P. MEHTA, District Judge.
Plaintiff Gulf Restoration Network brought this action under the Administrative Procedure Act challenging the decision of various federal agencies to approve the Gulf State Park Enhancement Project for inclusion in early restoration efforts responsive to the 2010 Deepwater Horizon oil spill. Plaintiff alleges that the decision to approve the project, which is to be located in the State of Alabama's Gulf State Park, violated the Oil Pollution Act of 1990 and the National Environmental Policy Act of 1969.
Before the court is Defendants' motion to transfer the case to the United States District Court for the Southern District of Alabama. After considering the parties' submissions and the relevant law, the court concludes that in the interest of justice, particularly the interest of Alabama's citizens in deciding this controversy at home, this matter shall be transferred.
Plaintiff Gulf Restoration Network ("Gulf Restoration") is a non-profit organization, based in New Orleans, Louisiana, and incorporated under the laws of the State of Louisiana. Gulf Restoration endeavors "to unite and empower people in protecting and restoring the Gulf [of Mexico]'s natural resources." Amended Complaint, ECF No. 12, ¶ 13 [hereinafter Am. Compl.]. Plaintiff maintains satellite offices in Madison, Mississippi, and St. Petersburg, Florida. It does not have an office in the District of Columbia. Gulf Restoration "has members throughout the states bordering the Gulf of Mexico and nationwide," including "numerous members who live, work, and take advantage of the tremendous outdoor recreation opportunities in and around Gulf State Park and otherwise in the vicinity of the" Gulf State Park Enhancement Project (the "Project"). Id. ¶¶ 13-14. Gulf Restoration alleges that the Project will harm its members' enjoyment of the Park. Id. ¶ 14.
Defendants the United States Department of the Interior ("DOI"), the National Oceanic and Atmospheric Administration ("NOAA"), the Environmental Protection Agency ("EPA"), and the United States Department of Agriculture ("USDA") (collectively, the "Defendant Agencies") serve as "Federal trustees" under the Oil Pollution Act of 1990 ("OPA") with respect to the 2010 Deepwater Horizon oil spill (the "Spill"). Id. ¶ 4. Defendants Sally Jewell, Kathryn Sullivan, Gina McCarthy, and Tom Vilsack are sued by Plaintiff in their official capacities as leaders of the Defendant Agencies—Defendant Jewell is Secretary of the Interior, Defendant Sullivan is Undersecretary of Commerce for Oceans and Atmosphere and the NOAA Administrator, Defendant McCarthy is the Administrator of the EPA, and Defendant Vilsack is Secretary of Agriculture. Id. ¶¶ 15-18. All Defendants are based in the District of Columbia. Id. ¶ 12.
Plaintiff alleges that Defendants violated both OPA and the National Environmental Policy Act of 1969 ("NEPA") by approving the Project without adequately considering alternative early restoration projects. See id. ¶¶ 76-84. Plaintiff further alleges that Defendants violated OPA by failing to document how the Project will help make Alabama whole from the Spill, see id. ¶¶ 95-106, and violated NEPA by failing to justify the need for, or the benefits anticipated from, the Project, as well as insufficiently assessing its environmental impacts, see id. ¶¶ 85-94, 107-14.
The process that led to the selection and approval of the Project took place over a three-and-half-year period and involved multiple federal and state actors, as well as multiple public comment periods. The complex and diffuse nature of the decision-making process requires the court to go into some detail about how the Project came to be. The facts set forth below are derived from the parties' pleadings, representations made at the hearing on Defendants' motion to transfer, and post-hearing submissions ordered by the court.
On April 20, 2010, the Deepwater Horizon, an offshore drilling rig operated by British Petroleum ("BP"), caught fire, exploded, and sank in the Gulf of Mexico. See Defs.' Mot. to Transfer Venue, ECF No. 7 [hereinafter Mot.], Ex. 1, Record of Decision for the Deepwater Horizon Oil Spill: Final Programmatic and Phase III Early Restoration Plan and Early Restoration Programmatic Environmental Impact Statement (Phase III ERP/PEIS), at 3 [hereinafter ROD]. Over the next 87 days, approximately five million barrels of oil and an undetermined amount of natural gas discharged into the Gulf of Mexico. Id. The Spill was "one of the largest . . . in U.S. history," id., and, according to Plaintiff, "caused environmental damage on a scale and of a complexity never before witnessed in the history of American oil production," Am. Compl. ¶ 1. It affected natural resources located throughout the Gulf of Mexico and in coastal areas of Florida, Louisiana, Mississippi, Texas, and most pertinent to this action, Alabama (collectively, the "Affected States"). ROD at 3.
The Spill and its environmental impacts produced a sweeping response involving a multitude of federal- and state-level actors located in several states and the District of Columbia. The early restoration process was governed by OPA, which provides a mechanism for assigning liability for removal costs and damages caused by oil spills. 33 U.S.C. § 2702(a). Under OPA, President Obama designated the Defendant Agencies as "Federal trustees," and the Affected States' governors designated a total of 13 state agencies as "State trustees" (collectively, the Trustees").
On April 19 and 20, 2011, representatives from DOI, NOAA, 12 State trustees, the United States Department of Justice ("DOJ"), and BP executed a "Framework for Early Restoration Addressing Injuries Resulting from the Deepwater Horizon Oil Spill." See Mot., Ex. 2, ¶ 1 [hereinafter Framework Agreement]. The Framework Agreement stipulated that the Trustees and BP will "work together to complete identification" and "implementation of early restoration projects that will provide meaningful benefits to accelerate restoration in the Gulf as quickly as practicable, with the goal of beginning projects in 2011 and 2012." Id. ¶ 2. BP agreed to provide $1 billion to fund the early restoration projects. Id. ¶ 4.
After the Framework Agreement's execution, the Alabama Trustees commenced an "initial screening process" in which they solicited input from the public and considered several hundred potential early restoration projects. See Mot., Ex. 3, Programmatic and Phase III Early Restoration Plan and Early Restoration Programmatic Environmental Impact Statement, at 1, 55 [hereinafter EIS]; see also Mot. Hr'g Tr. 8:22-9:4, Mar. 3, 2015. The "Alabama Trustees considered a range of project types to determine how best to proceed with Early Restoration projects aimed at restoring lost recreational use," including "land acquisition, smaller scale beach and boating access improvements, and development of nearshore artificial diving and fishing reefs." EIS at 57. The Gulf State Park Enhancement Project was among the projects that the Alabama Trustees identified. The Project contemplated the construction of a hotel, a convention center, and facilities for environmental research and education, along with various recreational and ecological enhancements. Id. at 55-56. All aspects of the Project were to be located in Gulf State Park, which is located on state-owned land in southern Alabama on the coast bordering the Gulf of Mexico. Id.
The Alabama Trustees then presented the Project to the "Trustee Council." EIS at 1; see also Hr'g Tr. 9:2-4. The Trustee Council consisted of representatives from each federal and state Trustee. Hr'g Tr. 6:24-7:2. Its "day-to-day" work was undertaken by an Executive Committee, id. at 7:2-4, the members of which performed "some technical screening" of proposed early restoration projects, negotiated with BP regarding each project, and "at the end of the day decided to include projects" in early restoration efforts, id. at 9:8-11. Each Federal trustee and each Affected State appointed a primary and an alternate representative to the Executive Committee. Id. at 7:2-7. Fourteen individuals served as either a primary or alternate representative of one of the Federal Agencies during the period when the Trustee Council likely discussed the Project. See Notice of Filing Agency Designations & Meeting Mins., ECF No. 14, at 1-2 [hereinafter Defs.' Suppl.]. During the relevant time period, nine of those individuals were based in the District of Columbia, four were based outside the District of Columbia,
The Trustee Council approved early restoration projects in several phases. See ROD at 4. After approving Phase I and Phase II, the Trustee Council announced in May 2013 its intent to move forward with Phase III, which included the Project and 43 other early restoration projects. Hr'g Tr. 7:14-21. The document announcing the Project's inclusion in Phase III explained that, "[w]hile all projects proposed to be implemented in Alabama are being put forth by [all] Trustees, the specifics of each project in this region were developed and brought to the Trustees for approval by `implementing trustees.'" EIS at 1. The "implementing trustee" for the Project was the State of Alabama, id., specifically the Alabama Department of Conservation and Natural Resources. Mot., Ex. 4, Stipulation Regarding Early Restoration Project for the Deepwater Horizon Oil Spill—Gulf State Park Enhancement Project, at 2 [hereinafter Stipulation].
On May 2, 2013, the Alabama legislature passed SB 231, a bill "that authorize[d] the Alabama Convention Center Project." Am. Compl. ¶ 50 (citing S.B. 231, 2013 Leg., Reg. Sess. (Ala. 2013)).
Selection and approval of the Project also involved the preparation of an "environmental impact statement,"
On June 4, 2013, in accordance with OPA and NEPA guidelines, the Trustees "published a Notice of Intent to Prepare a Programmatic Environmental Impact Statement for an Early Restoration Plan and Early Restoration Project Types, and to Conduct Scoping Meetings." ROD at 4. The publication of that notice began an 18-month "environmental review" period, which culminated in October 2014. Hr'g 16:12-17.
The first stage of a NEPA-mandated environmental review is a "scoping period." During that stage, the Trustees held public meetings with the aim of identifying "public and stakeholder issues of concern . . . ." Id. at 16:18-20. The scoping period for the Phase III early restoration projects, including the Project, involved six public meetings—five in the Affected States and one in the District of Columbia. See ROD at 4; see also Defs.' Reply in Supp. of Mot. to Transfer Venue, ECF No. 10, at 4 [hereinafter Defs.' Reply]. The scoping period ended on August 2, 2013. ROD at 4. On December 6, 2013, the Trustees released a draft version of the Project's Environmental Impact Statement (the "EIS"). Id. The draft EIS set forth, among other things, information about the Trustees' compliance with NEPA and OPA. The draft's release initiated a second public comment period, which closed on February 19, 2014. Id. During that period, nine public meetings were held concerning the draft EIS in Mississippi, Louisiana, Texas, Florida, and Alabama. Id.; see also Defs.' Reply at 4. In June 2014, the Trustees released the final EIS. See generally EIS.
The DOI prepared the draft and final EIS in cooperation with "NOAA, EPA, and USDA, and Trustees from Alabama, Florida, Louisiana, Mississippi, and Texas . . . ." ROD at 2. The United States Fish and Wildlife Service ("FWS"), an agency within DOI, and specifically FWS' Region 4 office in Atlanta, Georgia, supervised the preparation of the EIS. Hr'g Tr. 17:19-21. Nanciann Regaldo of FWS's Atlanta office was designated as the point of contact for "information concerning" the EIS. ROD at 258. FWS did not act alone, however. The EIS' preparation involved 17 "cooperating agencies" and 189 individual "preparers," located throughout the United States. See Hr'g Tr. 17:23-18:5, 18:16-18.
The Project received its final approval on October 2, 2014, when the Trustees (1) issued the Record of Decision (the "ROD")—the final administrative record—and (2) executed an agreement with BP titled "Stipulation Regarding Early Restoration Project for the Deepwater Horizon Oil Spill—Gulf State Park Enhancement Project" (the "Stipulation"). The Stipulation set forth the logistics of BP's funding of the Project as well as the Project's terms and conditions. See generally Stipulation. Cythina Dohner (DOI), Craig O'Connor (NOAA), Kenneth Kopocis (EPA), and Ann C. Mills (USDA) signed both the ROD and the Stipulation on behalf of the Federal trustees. See ROD 259-62; Stipulation at 9. These signatories were, at the time, based in Atlanta, Georgia, see Mot., Ex. 5, Aff. of Kevin Reynolds (Nov. 21, 2014); Seattle, Washington, see Mot., Ex. 6, Aff. of Craig R. O'Connor (Nov. 18, 2014); the District of Columbia; and the District of Columbia, respectively. Silver Spring, Maryland-based David Westerholm and Eileen Sobeck of NOAA, see Mot., Ex. 6, Aff. of David Westerholm (Nov. 19, 2014), Ex. 7, Aff. of Eileen Sobeck (Nov. 18, 2014), both signed the ROD, but not the Stipulation, see ROD at 261. District of Columbia-based Sam Hirsch (DOJ) and two representatives of BP signed the Stipulation, see Stipulation at 9, 15, but not the ROD. Each document was also signed by officials from the Affected States. See ROD at 263-67; Stipulation at 10-14. On behalf of Alabama, N. Gunter Guy, Jr. (Alabama Department of Conservation and Natural Resources) and Berry H. Tew, Jr. (Geological Survey of Alabama) signed the Stipulation, see Stipulation at 10, and Mr. Guy signed the ROD, see ROD at 263.
Defendants have moved to transfer this case to the Southern District of Alabama under 28 U.S.C. § 1404(a). Mot. at 5. Section 1404(a) authorizes a court to transfer a civil action to any other district where it could have been brought "for the convenience of parties and witnesses, in the interest of justice . . . ." 28 U.S.C. § 1404(a). Transfer may be appropriate "[e]ven where a plaintiff has brought its case in a proper venue." Preservation Soc'y of Charleston v. U.S. Army Corps of Eng'rs, 893 F.Supp.2d 49, 53 (D.D.C. 2012). A case should not be transferred, however, "simply because another forum, in the court's view, may be superior to that chosen by the plaintiff." The Wilderness Soc'y v. Babbitt, 104 F. Supp. 2d. 10, 12 (D.D.C. 2000) (citation omitted) (internal quotation marks omitted). District courts have "discretion . . . 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) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).
Under Section 1404(a), the moving party bears the burden of establishing that transfer is proper. Trout Unlimited v. U.S. Dep't. of Agric., 944 F.Supp. 13, 16 (D.D.C. 1996) (citations omitted). This burden encompasses two distinct steps. First, a movant must establish that the plaintiff originally could have brought the action in the proposed transferee district. See Van Dusen, 376 U.S. at 622. Second, a movant must show that "considerations of convenience and the interest of justice weigh in favor of transfer" to the transferee court. Schmidt v. Am. Physics Inst., 322 F.Supp.2d 28, 31 (D.D.C. 2004) (citation omitted). The second inquiry "calls on the district court to weigh in the balance a number of case-specific factors," which reflect the public and private interests at stake. Stewart Org., 487 U.S. at 29. These factors are not statutory; rather, "they are intended to elucidate the concerns implied by the phrase `in the interest of justice.'" Stand Up for California! v. U.S. Dep't of Interior, 919 F.Supp.2d 51, 64 (D.D.C. 2013) (citing Stewart Org., 487 U.S. at 29).
The private-interest factors that courts typically consider, and that this court will consider here, include: (1) the plaintiff's choice of forum; (2) the defendants' choice of forum; (3) where the claim arose; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof. Trout Unlimited, 944 F. Supp. at 16. The public-interest factors include: (1) the transferee court's familiarity with the governing laws; (2) the relative congestion of the dockets of the potential transferee and transferor courts; and (3) the local interest in deciding local controversies at home. Id.
This case could have been brought in the Southern District of Alabama, and the court has considered the relevant private- and public-interest factors. Ultimately, the localized interest of Alabama's citizens in having this controversy decided in Alabama tips the scales in favor of transfer.
Both parties agree that this case originally could have been brought in the Southern District of Alabama. Under 28 U.S.C. § 1391, venue in a suit against the federal government is proper in any district in which "a substantial part of property that is the subject of the action is situated. . . ." 28 U.S.C. § 1391(e)(1)(B). Here, venue is proper in the Southern District of Alabama because the Project is located there.
Plaintiff's opposition to transfer focuses greatly on the deference its choice of forum is owed. A plaintiff's choice of forum is generally afforded "substantial deference," Greater Yellowstone Coal. v. Bosworth, 180 F.Supp.2d 124, 128 (D.D.C. 2001), but that deference is not unyielding. The amount of deference is diminished "where the plaintiff's choice of forum has no meaningful ties to the controversy and no particular interest in the parties or subject matter." Trout Unlimited, 944 F. Supp. at 17 (citation omitted) (internal quotation marks omitted); see also Wilderness Soc'y v. Babbitt, 104 F. Supp. 2d. at 13 ("The degree of deference accorded to [a plaintiff's] choice of forum therefore depends upon the nexus between [a plaintiff's] chosen forum. . . and the dispute over the [action at issue]."). The amount of deference also is diminished where a plaintiff is not a resident of its chosen forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 (1981) ("When the plaintiff has chosen the home forum, it is reasonable to assume that the choice is convenient; but when the plaintiff or real parties in interest are foreign, this assumption is much less reasonable and the plaintiff's choice deserves less deference.").
Here, Gulf Restoration's choice of forum is afforded some deference because of the District of Columbia's meaningful ties to the Project, but not "substantial deference" because Gulf Restoration is not a resident in this forum. The District of Columbia's factual connection to the dispute cannot be doubted. The Defendant Agencies, all of which are based in the District of Columbia, served as Trustees with respect to the Project; nine District of Columbia-based officials served as primary or alternate representatives of Defendant Agencies on the Trustee Council's Executive Committee; one public meeting during the scoping period occurred in the District of Columbia; Defendant Jewell was directly and personally involved in "announc[ing] the selection of the Phase III early-restoration projects at a press conference in Louisiana"; and five District of Columbia-based officials
But Plaintiff is not a District of Columbia resident. It is headquartered in Louisiana and maintains satellite offices in Mississippi and Florida only. This court consistently has shown less deference to entities that chose this forum but did not reside here. See, e.g., Pres. Soc'y, 893 F. Supp. 2d at 54 (limiting the deference afforded to plaintiffs "based in Charleston" that did not allege to have "offices in the District of Columbia or members who live here"); Shawnee Tribe v. U.S., 298 F.Supp.2d 21, 25 (D.D.C. 2002) (giving diminished deference to plaintiff Shawnee Tribe's choice of forum because, "despite the Tribe's assertion that its individual members live across the United States, the Tribe's reservation is, in fact, located in Kansas"); cf. Sierra Club v. Van Antwerp, 523 F.Supp.2d 5, 11 (D.D.C. 2007) (granting "a strong presumption in favor of the chosen forum" where "[o]f the five plaintiffs that filed suit . . . at least one . . . has its headquarters in the District of Columbia, and is thus clearly a resident of this District"); Wilderness Soc'y, 104 F. Supp. 2d at 14 (affording substantial deference where "[f]our of the [eight] plaintiffs are headquartered in Washington, D.C. and two others have offices here"). Notably, in another case, a member of this court decided that Gulf Restoration was "not entitled to this Court's deference" because it "is headquartered in New Orleans, Louisiana, and maintains only one satellite office, which is located in the Middle District of Florida." Van Antwerp, 523 F. Supp. 2d at 11 n.3.
Gulf Restoration argues that a "[p]laintiff's choice of forum is usually accorded great deference, unless the plaintiff chooses a forum that is not his home and [the forum] has no substantial connection to the subject matter of the action," contending that the standard is "typically conjunctive." Hr'g Tr. 34:2-6 (emphasis added). The court disagrees. Although there are cases that use the conjunctive "and" when discussing deference owed to a plaintiff's chosen forum, see Nat'l Ass'n of Home Builders v. EPA, 675 F.Supp.2d 173, 179-80 (D.D.C. 2009) ("When there is only an `attenuated' connection between the controversy and the plaintiff's chosen forum and . . . that forum is not the plaintiff's home forum, the deference afforded to the plaintiff's choice is diminished.") (citations omitted), to the extent that those cases establish a conjunctive standard—and it is not at all clear that is what they do—they cannot be squared with Piper Aircraft. In Piper Aircraft, the Supreme Court affirmed a district court's ruling that the presumption in favor of a plaintiff's chosen forum "applies with less force when the plaintiff or real parties in interest are foreign." 454 U.S. at 266. The Court did not limit the diminished presumption only to those cases where there was also little or no factual nexus to the chosen forum. Thus, even though Plaintiff has shown meaningful ties between the District of Columbia and the decision to approve the Project, because Plaintiff does not reside here, the court treats Plaintiff's choice of forum with some but not substantial deference.
Defendants' choice of forum supports transfer in this case and to some degree counterbalances the diminished deference owed to Plaintiff's choice of forum. A defendant's "choice of forum must be accorded some weight" if the defendant presents legitimate reasons for preferring to litigate the case in the transferee district. Nat'l Wildlife Fed'n v. Harvey, 437 F.Supp.2d 42, 48 (D.D.C. 2006). In Administrative Procedure Act ("APA") cases, a defendant's choice of forum deserves "some weight" where the harm from a federal agency's decision is felt most directly in the transferee district. See id. at 46-47. Here, as the court discusses below, see infra Part IV.C., the economic and environmental impacts of the Project will be felt most acutely in the Southern District of Alabama. Defendants' choice of forum is therefore afforded some weight.
The third private-interest factor—where the claim arose—does not support transfer or weigh against it. In APA cases, "courts generally focus on where the decisionmaking process occurred to determine where the claims arose." Home Builders, 675 F. Supp. 2d at 179 (citations omitted). Where the decision-making process was concentrated in a particular city or state, courts have found this factor to weigh heavily in the transfer analysis. See, e.g., Preservation Soc'y, 893 F.Supp.2d 49 at 56 (finding that the third-factor supports transfer where all decision-making occurred in Charleston, South Carolina, "the Complaint alleges no involvement by Corps staff based in Washington . . . . [and] the potential effects Plaintiffs have alleged will all be felt in Charleston, not in Washington"); Akiachak Native Cmty. v. U.S. Dep't of Interior, 502 F.Supp.2d 64, 67-68 (D.D.C. 2007) (denying transfer where the "national rulemaking process DOI engaged in when formulating the regulation [at issue] took place in the district, and public discussions of the proposed regulation took place here"). On the other hand, where the decision-making process was diffuse courts have found this factor to be neutral. See Wilderness Soc'y, 104 F. Supp. 2d at 15 (finding the third private-interest factor "inconclusive" where research was conducted and documents were drafted in Alaska, the Record of Decision and some policy review occurred in the District of Columbia, and "the entire rulemaking process had a national dimension as comments were received from all 50 states and public meetings were held both inside and outside of Alaska"); see also Defenders of Wildlife v. Salazar, No. 12-1833, slip op. at 6 (D.D.C. Apr. 11, 2013) (finding the third private-interest factor "essentially neutral" where the final rule "was promulgated by FWS from Washington, D.C., [but] significant decision making also took place in Wyoming").
Though the District of Columbia's ties to the decision-making process are significant, see supra Part IV.B.1., those ties are but a part of the nationwide, federal and state decision-making mechanism that resulted in the Project's selection and approval. Defendant Agencies were joined as Trustees by 13 state agencies, including two from Alabama; the Alabama Trustees oversaw the initial screening process that resulted in the selection of the Project, which was one of several hundred that they reviewed; representatives of each of the Affected States, along with four representatives of Defendant Agencies based outside the District of Columbia, served on the Trustee Council's Executive Committee; the preparation of the EIS was overseen by FWS's office in Atlanta, Georgia; 14 of the 15 public meetings regarding Phase III early restoration projects were held outside of this forum; the Alabama state legislature passed a bill authorizing the Project; representatives of each state agency signed the Stipulation; representatives of each Affected State signed the ROD; and two representatives of the Federal Agencies based outside the District of Columbia signed both the ROD and the Stipulation.
In opposing transfer, Plaintiffs have emphasized that "Defendants point to no relevant federal decisions made in Alabama, let alone in the Southern District of Alabama, that would indicate that the Southern District of Alabama was the source of Gulf Restoration Network's claims." Pl.'s Opp'n at 13; id. at 2 ("Defendants point to no federal official in Alabama, and no official of any stripe in the Southern District of Alabama, who played a role in approving the use of public funds for the Convention Center Project."); see also id. at 10 ("It is more telling that Defendants have identified no such person residing in the Southern District of Alabama, or indeed anywhere in the State of Alabama."); Hr'g Tr. at 29:2-3 ("There wasn't a decision-making process in the Southern District of Alabama . . . ."). Plaintiff's argument unfairly discounts the role that Alabama-based actors, particularly Alabama state officials, played in the Project's selection and approval process. The Alabama Trustees selected the Project, recommended it to the Executive Committee, and presumably voted for its approval; public meetings were held in Alabama; and an Alabama-state trustee was designated as responsible for the Project's implementation. Thus, the transferee district was not, as Plaintiff claims, completely divorced from the decision-making process. See generally, e.g., Oceana v. Bureau of Ocean Energy Mgmt., 962 F.Supp.2d 70 (D.D.C. 2013) (discussing connections to the state of Alabama in denying transfer to the Southern District of Alabama).
The remaining private-interest factors do not weigh for or against transfer. As to the fourth private-interest factor, the District of Columbia is not more or less convenient to either of the parties. Plaintiff is based in New Orleans, Louisiana, which is geographically closer to the proposed transferee district than to the District of Columbia. Defendants correctly assert, and Plaintiff does not contest, "that the Southern District of Alabama would be no less convenient for New Orleans-based GRN than the District of Columbia." Mot. at 10. With regard to Defendants, the District of Columbia obviously is not an inconvenient forum. But nor is the Southern District of Alabama, where they have asked to litigate this matter.
The final two private-interest factors—the convenience of the witnesses and the ease of access to sources of proof—are also neutral with respect to transfer. APA cases are likely to be decided on the basis of the administrative record, without discovery or witness testimony. See 5 U.S.C. § 706 (in reviewing an agency action "the court shall review the whole record"); see also Camp v. Pitts, 411 U.S. 138, 142 (1973) ("In applying [the Section 706(2)] standard, the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court."). As this is an APA case in which the administrative record is "all digital," Hr'g Tr. 24:17, the final two factors do not bear on this court's decision regarding transfer.
The first two public-interest factors—the transferee court's familiarity with the governing law and the relative congestion of the courts' dockets—are neutral with regard to transfer. The third and final public-interest factor—the local interest in deciding local controversies at home— however, weighs heavily in the court's assessment.
As to the first public-interest factor—the transferee court's familiarity with the governing law—the Court sees no need to deviate from "the principle that the transferee federal court is competent to decide federal issues correctly . . . ." In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175 (D.C. Cir. 1987) (citations omitted) (internal quotation marks omitted). Neither party questions the Southern District of Alabama's competence to adjudicate the claims at issue. Because both this court and the transferee court are competent to interpret OPA, NEPA, and the APA "there is no reason to transfer or not transfer based on this factor." See Nat'l Wildlife Fed'n, 437 F. Supp. 2d at 49.
The second public-interest factor—the relative congestion of this court and the Southern District of Alabama—similarly offers no reason to transfer or not transfer this case. Absent a showing that the docket of either court is "substantially more congested" than the other, this factor is neutral. Home Builders, 675 F. Supp. at 178. Statistics show and the parties agree that the congestion of the two dockets is comparable.
The third public-interest factor—the local interest in having local controversies decided at home—presents a substantial reason for transfer. "In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). The D.C. Circuit has recognized that "in complex suits . . . [venue] policies must protect not only the interests of the technical defendants . . . but, more importantly, those whose rights and interests are in fact most vitally affected by the suit . . . ." Adams v. Bell, 711 F.2d 161, 167 n. 34 (D.C. Cir. 1983). A trial held "in the locality of the policies or transactions at issue" respects those localized interests and "serves to further public participation in and the accountability of a judicial process that will result in decisions directly and vitally affecting large numbers of citizens." Id. The importance of respecting localized interests is equally applicable "to the judicial review of an administrative decision which will be limited to the administrative record." Trout Unlimited, 944 F. Supp. at 19 (citation omitted).
Plaintiff argues that the Spill and the related restoration efforts are of "national significance," Pl.'s Opp'n at 16, that there is a "profound national interest" in how Defendants fulfill their obligations pursuant to OPA and NEPA, id. at 18, and that the judgment in this case could affect "the conduct of the broader Deepwater Horizon Natural Resource Damage Assessment and future natural resource damage assessments in any part of the nation," id. at 19. Defendants acknowledge that the Spill and the subsequent restoration efforts are "issues of interest to the entire Gulf region and the Nation as a whole," Mot. at 11, but argue that the Project is located entirely in Alabama, is "aimed at compensating for the lost recreational use of natural resources exclusively in Alabama," id. at 11, and that the outcome of the case "will likely be felt most directly and acutely in Alabama," Defs' Reply at 8-9.
The court agrees with Defendants that this case should be litigated within the "view and reach" of the people who will be "most vitally affected" by its outcome. Although the Spill and subsequent restoration efforts are significant to individuals and communities nationwide, particularly those who reside in the other Affected States, Alabama's superior interest in this controversy is undeniable. The judgment in this case will bear directly on whether or not the Project will be constructed using funds provided under OPA. It may well determine whether or not the Project will be constructed at all.
The instant case is distinguishable from the cases cited by Plaintiff in support of its argument that the controversy at issue is not localized. In both Oceana and Wilderness Society, the plaintiffs challenged decisions that affected the use of national resources managed by federal officials. 962 F. Supp. 2d at 77 (denying transfer where the challenged decision "re-opened a vital national resource reserve held by the Federal Government for the public") (citation omitted) (internal quotation marks omitted); 104 F. Supp. 2d at 13 ("[T]he land at issue has consistently been treated as a national resource despite the special interest of the Alaskan people. For instance, when Congress transferred management of the [National Petroleum Reserve planning area in Alaska] to the Secretary of the Interior in 1976, it was to ensure that the reserve would be regulated in a manner consistent with the total energy needs of the Nation.") (citation omitted) (internal quotation marks omitted). Further differentiating Oceana is the fact that the national resource at issue in that case was located "on the outer continental shelf, beyond the bounds of any state." 962 F. Supp. 2d at 77. And the subject of the decision at issue in Defenders of Wildlife, another case relied upon by Plaintiff, was similarly not located in a single state. No. 12-1833, slip op. at 10 (stating that the challenged decision "impact[ed] a wolf population that spans the entire northern Rocky Mountains, encompassing not only Wyoming but also Montana, Idaho, and parts of Washington, Oregon, and Utah").
The facts in Otay Mesa Property L.P. v. U.S. Dep't of Interior and Stand Up are also distinguishable from those of the instant case, because in neither case was there an interested "local population," like the people of Alabama. In Otay Mesa, the litigation regarded "private property that is not accessible by the public" and therefore "directly affect[ed] only the [p]laintiffs." 584 F.Supp.2d 122, 128 (D.D.C. 2008). The court explicitly distinguished the facts of its case from that of cases, such as this one, where, "the local population faced specific injury of a particularly local nature either as a result of, or upon enjoinment of, a challenged action." Id. at 127. In Stand Up, the local population directly affected by the disputed decision was expressly not interested in having the case decided in its home forum. There, the affected community—the North Folk Rancheria of Mono Indians—intervened, and opposed transfer. See 919 F. Supp. 2d at 65.
In summary, the question whether to transfer is a close one. The Plaintiff's choice of forum is entitled only to some deference because the District of Columbia is not its home forum. Defendants' choice of forum is afforded some countervailing weight. The remaining private- and public-interest factors, save one, are neutral. What then tips the balance in favor of transfer is the substantial local interest in deciding local controversies at home. Defendants' motion to transfer this case to the Southern District of Alabama is therefore granted. A separate Order accompanies this Memorandum Opinion.
THE COURT: Bear with me for one moment. We're still trying to work the kinks out here. Thanks, everyone, for being here this morning and working with Miss White to be here this morning.
The reason I called this hearing — and we're here, obviously, on the defendant's motion to transfer this matter to the Southern District of Alabama. I have looked at the cases, read all of your papers, which have been very helpful. And the — you know, the courts in this jurisdiction have looked at a number of factors, all of which you have pointed out, both public and private, in determining whether to transfer a case outside the District of Columbia.
The courts have looked at — I believe it's nine factors. But really, when you look at those factors, there are really only three that, certainly in this case and in most cases, that come into play. And that is the plaintiff's choice of forum and the amount of deference that's to be afforded to the plaintiff's choice of forum.
Two, where the claim itself actually arises. And, three, whether the controversy at issue is one that is properly characterized as one of more national scope or more local interest.
And I will tell you, as I read through the papers, I found this case to be a hard one. And the reason is that this case, I think, is fairly unique in that while it involves what it arguably a local — or, what is a local project; a local project, the Alabama Convention Center arises out of an event, certainly of national importance and national scope, the Deepwater Horizon oil spill. And it arises out of, from what I can tell, a sort of unique federal-state process by which this was one of, I think, 44 projects selected for early restoration work.
And so, I'm still undecided about what to do, I will be perfectly honest with you. And the reason I called this is to get some help from counsel in answering some questions that I have, that I don't fully appreciate the answers to, that really have to do with the three areas, the three factors I just identified. And so, that's why I've called this hearing and would appreciate counsel's efforts in helping me answer some of those questions.
So, let me, actually, ask government counsel to begin. And I'm sure you have prepared remarks and have things you would like to present to the court, but I have a number of questions that I'd just like to jump into, if that's okay with you.
MR. SWANSON: Absolutely. Whatever you prefer.
THE COURT: The first is a fairly routine question and that is I am not quite sure I understand the difference between what is Defendant's Exhibit 3, which is styled Programmatic and Phase III Early Restoration Plan, and Early Restoration Programmatic Environmental Impact Statement, which is dated June of 2014 and what is your Exhibit 1, which is the record of decision that effectively has the same title but is dated several months later and signed October 2nd, 2014.
Could you just tell me what — and you're Mr. Swanson?
MR. SWANSON: Kristofor Swanson, yes, representing Federal Defense.
THE COURT: What's the difference between those two?
MR. SWANSON: Exhibit 4 is the restoration plan and environmental impact statement, and that is a requirement of the Oil Pollution Act and the National Environmental Policy act in this case.
THE COURT: Exhibit 4 is the stipulation.
MR. SWANSON: I'm sorry. Exhibit 3.
THE COURT: Right. The one with the nice photograph of the beach.
MR. SWANSON: I'm sorry. Exhibit 3 is the
Restoration Plan and Environmental Impact Statement. And those are planning documents required by law under the Oil Pollution Act, OPA, and the National Environmental Policy Act, NEPA. In OPA it is for purposes of considering the factors for restoration projects and getting public input and comments on this projects. And for NEPA, NEPA requires federal agencies to consider the environmental effects of their actions before they act. And that's done through either an environmental assessment or environmental impact statement. In this case it was an environmental impact statement.
So those are procedural steps before you get to the actual decision, which is the record of decision in this case, which is Exhibit 1.
THE COURT: So Exhibit 3 is both — is really the environmental impact statement?
MR. SWANSON: Extracts of it, yes. THE COURT: Extracts, okay. Okay. And then the record of decision is the final document?
MR. SWANSON: That's right.
THE COURT: That incorporates both the selection of the various projects — or, identifies the projects and then also incorporates the impact statement that is dated June 14th?
MR. SWANSON: That's right. Relies on the impact statement for both other purposes and NEPA purposes. Documents the information that the agencies are relying upon to reach their decision, what they considered in reaching the decision.
THE COURT: That's helpful because I wasn't 100 percent clear on the difference between the two exhibits.
So let me ask you, and one of the reasons — one of the questions that I posed in the order convening this hearing, was I'm still unclear on precisely what — how this process worked. Specifically, when they talk about which process here, because we really have two separate but related processes here. We have the selection of the Alabama Convention Center and then we have the environmental review. I understand the two of them are related, but I would like to think of them separately just for these purposes.
Can you explain to me how the selection actually came about? And in addressing that, address both the role of the Alabama trustees and the other state trustees, to the extent they had a role, and the federal trustees.
MR. SWANSON: Sure. You know, you said something, Your Honor, at the very beginning here which I think is very at the point, and that is a very unique process that state involvement — unlike a lot of the case law that the parties relied upon, this was not a federal agency acting unilaterally. There's federal involvement here on a multistate and federal trustee council aimed at restoring some of the resources that were damaged.
So for purposes of including this Gulf State Park project in the Phase III planning, that's done on the trustee — through the trustee council, which includes state and federal representatives. And the day-to-day work on that council is really done through what's called an executive committee. On that committee there are — it was a principal representative and an alternative representative from each of the five states and the four federal trustee agencies.
THE COURT: Does that committee have a physical location?
MR. SWANSON: It does not. They, as you would expect, being gulf centric here, a lot of their correspondence is done through e-mail and telephone.
THE COURT: Okay. So they act virtually.
MR. SWANSON: Right. But the relevant period here, I think, is March 2012 through May 2013, in terms of including Gulf State Park in the Phase III planning. March 2012 is what we identified when that trustee council started to consider this project as part of the Phase III project. And May 2013 was the date when the trustees publicly announced their intent to move forward with that Phase III planning.
THE COURT: Let me interrupt. So am I understanding correctly that the trustee council, and that's composed of both the federal and state trustees, began considering this project in March of 2012, is that right?
MR. SWANSON: That's right.
THE COURT: So who proposed the convention center as a project for the trustees considering? I'm specifically — if you look at Exhibit 3, page 57, what's on page 57. First full paragraphs starts, "The Alabama trustees consider a range of project types to determine how best to proceed with early restoration projects aimed at restoring lost recreational use."
A couple pages earlier, on what is page 1, it's a couple pages earlier in the exhibit: While all the projects proposed to be implemented in Alabama are being put forth by the trustees, the specifics of each project in this region were developed and brought to the trustees for approval by the, quote, implementing trustees. For this project that would be the Alabama trustee. Then it goes on to say: Each trustee conducted an initial screening process to decide which projects to move forward to the trustee council for consideration as an early restoration project proposal.
So, I think I understand what that means, but tell me what that means in the context of this specific project.
MR. SWANSON: Yes. Alabama, as I think all the
other states do, has a public projects solicitation process. They have a website where the public can submit projects for consideration, both in early restoration and on the longerterm restoration that would occur. This project was one of those submitted. Alabama had its own internal screening process to select projects for early restoration and Alabama proposed the Gulf State Park project to the trustee council for inclusion in Phase III.
THE COURT: Okay.
MR. SWANSON: And then from there the trustee council again acts through those principal representatives and the alternates. They do a — some technical screening and some negotiation with BP because this is their latest restoration that BP will fund, and then at the end of the day decide to include projects in Phase III.
You had asked if there is a location of that executive committee. There is not. But as I mentioned, it did meet 12 times. None of those meetings were in the District of Columbia.
THE COURT: That's separate from the public meetings.
MR. SWANSON: That's separate from the public meetings, which were part of the environmental review process, EIS.
THE COURT: So what are you talking? What meetings are you talking about?
MR. SWANSON: This is the executive committee of the trustee council, meeting to discuss negotiations with BP, discuss projects, move forward with various things for restoration.
THE COURT: Are these open meetings, closed meetings?
MR. SWANSON: I believe they're closed meetings, but there are some publicly available documents that are posted on websites.
THE COURT: Would this project have been discussed at those meetings?
MR. SWANSON: Yes, potentially, during that time period.
THE COURT: Is there a record of that discussion?
MR. SWANSON: The meeting minutes, I think, reflect discussion at three or four of those meetings. I'm not recalling the specific dates.
THE COURT: Okay. I would like you to submit those to the court.
MR. SWANSON: The meeting minutes?
THE COURT: The meeting minutes. And particularly, if any of the meeting minutes reflect discussion about this project.
MR. SWANSON: Okay.
THE COURT: Did — and when you say a meeting, was there a physical location for these meetings?
MR. SWANSON: Yes. There was 12 of them in that
March to — March of 2012 to May of 2013 timeframe. None of those occurred in D.C. One was in Alabama, one was in — at a park service facility in West Virginia, and the remainder were in the other four Gulf States.
THE COURT: Okay. So, once the project itself, the Alabama Convention Center project is proposed to the executive committee, can you tell me what the individual federal trustees did in terms of assessing the project? And specifically, who's doing the assessing and where is the assessing taking place?
MR. SWANSON: Now we're moving to the EIS and that review process. That also — THE COURT: I'm sorry. I'm sticking just with the actual selection of the convention center. Because what you've told me, as I understand it, is that the Alabama trustee makes a proposal to the council, the council consists of both the federal and state trustees. So — and ultimately, seems like everybody needs to sign off, all of the trustees, both federal and state, must sign off before a project is approved, is that correct?
MR. SWANSON: The framework agreement with BP requires that, yes.
THE COURT: Okay. So, I take it that the federal
trustees must have done some evaluation of the — whether the project complies with the Oil Pollution Act and the framework agreement?
MR. SWANSON: Right. Yes. There is some initial screening that is done to consider presenting projects to BP for negotiation purposes. But the final review of whether the projects are consistent with OPA and the review required by NEPA, that is done through the EIS process.
So the way the process worked is projects are bought forth by the trustees, the council determines collectively whether or not to negotiate with BP regarding those projects for inclusion in the restoration. If an agreement with BP is reached, yes, we think we can use early restoration funding on these projects, then the trustees collectively move to that public review process under OPA and NEPA using EIS as that document, develop the public comment that is considered in their review and then ultimately get to the record of decision point, which is the final decision to move forward with those projects.
THE COURT: Okay. And so what then — I've got a Phase III document and it's important to know who signed it. But — and in particular, just — it's you've got three-you've got four federal trustee signatories. You've got Agriculture, EPA, Interior, and NOAA, those are the four. Two of those four signatories, the individuals, Miss Kopics—probably pronouncing her name incorrectly, I apologize to her—Miss Mills are both clearly D.C. based. The NOAA signatory is based in Silver Spring.
MR. SWANSON: And one is in Seattle, Washington.
THE COURT: I have Cynthia Dohner, the signatory in Atlanta, and then one of the NOAA signatories is in Seattle. So tell me what, to the extent that you know, Mr. Kopics and Miss Mills did, or whether others who reported to them did, in evaluating this project.
MR. SWANSON: I don't know the details of their
deliberations. I do know that the individuals that signed the ROD are not necessarily the individuals that are serving on the executive committee. I think that the number count, in terms of D.C. versus elsewhere, is the same. For EPA Mr. Kopics is also the principal representative.
For agriculture, however, the principal representative is the director of their restoration team and he is based in Madison, Mississippi. And they would be the folks who were — the first instance, the principal representatives on the executive committee. There are alternates also. EPA's alternate was based out of Mississippi during this time period and USDA's alternate during this time period was based out of D.C.
THE COURT: Out of D.C.?
MR. SWANSON: Right.
THE COURT: And what's your sense of — again, to the extent you know, what's your sense of what each of these individual federal trustees did in reviewing the project? I can see various possibilities, one of which is, for example, one of the federal trustees took a lead and the others essentially followed. Or perhaps each of the trustees felt an independent obligation to make their own assessments and they did that. What's your sense of how this actually played out?
MR. SWANSON: I think if you're talking — my sense, if you're talking about the final record of decision, sort of, is this a no-go, go type signature, that's something, certainly, each agency independently reached. I'm sure they collaborated in reaching that decision.
But if you're talking about the environmental review process and that public process and developing that documentation and the information considered, there was certainly lead agencies there.
THE COURT: Okay. We'll talk about the environmental review process in a moment.
Question about the — so, fair to say then-well, would it be fair to characterize what you've just described as a decisionmaking process, although diffuse because there are a number of players in it, there is some D.C. connection?
MR. SWANSON: Yes.
THE COURT: We've got at least two folks from the District of Columbia and at least one person who's actually on the executive committee, it sounds like, ultimately making a decision about the inclusion of this convention center as part of the Phase III restoration. And you've got at least two people in Silver Spring. And do we know to what extent those folks were involved in the executive committee?
MR. SWANSON: Yes. NOAA's principal representative on the executive committee is Craig O'Connor, who also signed the ROD, and he's based out of Seattle, Washington. And the alternate is NOAA's general counsel, who works in the commence building in D.C.
THE COURT: Is there a document that spells out who's on the executive committee and who the alternates are?
MR. SWANSON: There is not. I am aware of — I've seen at least two of the agencies, agencies themselves, at least two of them I know of, documented, I believe, for the benefit of the other trustees, who their principal representative and who their alternate representative would be. I've seen those documents. I don't know if Agriculture or EPA have those same documents.
THE COURT: Is it possible for you to inquire and make a submission to the court as to who the primary representative is from each federal agency and who the alternate is?
MR. SWANSON: Certainly.
THE COURT: I would like you to do that. Okay. So, then unless you have more to say on the inclusion of the project, I would like to turn to the environmental assessment.
MR. SWANSON: Yes, that's fine.
THE COURT: Okay. So walk me through the actual decisionmaking process of the environmental assessment from the time the project is identified as a potential project. At some point there are negotiations with BP, at some point the project is approved by the trustees. Where in that time horizon does the environmental impact assessment occur?
MR. SWANSON: I mentioned that May 2013 date, which was when the trustees stated their intent to move forward with planning for some Phase III projects, which include Gulf State Park. From that point until the ROD was signed in October of 2014, that would be the period in which the environmental review was being developed. And the first step in that under NEPA are the scoping meetings. And that — the intent of scoping under NEPA is to identify public and stakeholder issues of concern, to try to identify issues where you'd want to focus and pay the most attention to certain things.
There were six scoping meetings here. This was in our briefs. One of those scoping meetings was in D.C., the other five were in the Gulf States.
THE COURT: This is an important issue, or an issue that I fully appreciate. So the scoping meetings and the public meetings that are referred in your papers, those deal only with the environmental assessment? Or do they also deal with the project selection process?
MR. SWANSON: It would be both. And by both, in terms of project selection, I mean whether or not this project is appropriate for a restoration project under the Oil Pollution Act.
THE COURT: Okay. All right. So you had scoping meetings, one of which took place in D.C., the remainder took place in the Gulf and then there were public meetings thereafter.
MR. SWANSON: Right. And the — there's also another couple other terms of art under NEPA which may be important here. That's lead agency and cooperating agency. Lead agency, under NEPA, is the agency that supervises and oversees development of the EIS or EA, NEPA documentation. Here that lead agency was an interior subcomponent, the U.S. Fish and Wildlife Service, its Region 4 office in Atlanta. And they contracted the day-to-day process of that to a consulting firm in the Boston area.
There were 17 cooperating agencies on the EIS here. Cooperating agencies, again, a term of art. Under NEPA they provide staff support, funding in some cases, expertise. Here, of course, the Gulf State project, Alabama was one of those cooperating agencies. Several Alabama agencies. Seventeen cooperating agencies; thirteen of them were the state agencies, the other four were federal agencies.
THE COURT: Okay. So when you say the lead agency's interior and in its Region 4 Atlanta office, does that mean that that is the federal subdivision or federal sub-agency office that was the lead and primarily responsible for assessing this convention project under NEPA, NEPA compliance?
MR. SWANSON: That's correct. And here again, given the Gulf scope of this and the multistate — the EIS, because the EIS consider many projects, the focus was pretty wide in terms of where people actually came from. NEPA requires a list of preparers to be appended to an EIS. Here there were 189 individuals identified in that list of preparers. Only six of those individuals work in the District of Columbia.
THE COURT: Do we know which individuals worked on this project in particular? Were they were located?
MR. SWANSON: It's hard to say. Do know that Alabama had 17 individuals; that includes staff and contractors, 17 individuals that were on the list of preparers. We know that — the Department of Interior — well, I should say there are 113 state individuals and contractors and 76 federal agency contractor — federal agency staff or contractors. Interior had the most of those. And there was a total of seven federal staff that were located in Alabama field offices.
HE COURT: How many in D.C.?
MR. SWANSON: Federal contractors, two federal staff and two federal contractors.
THE COURT: Do you know whether any of those folks worked on the assessment for this project?
MR. SWANSON: I do not know for certain. One of the D.C. staffers was an attorney. The other, it was an EPA staff employee, so I don't know the direct role they would have played in reviewing the Gulf State project.
THE COURT: So if you were sitting where I am and you have to answer the following question: Where does this claim arise? It ain't in the southern district of Alabama. Because, at least as I view the cases, the cases look, primarily, in terms of that element, there's a separate question about whether there's a local interest.
MR. SWANSON: Right.
THE COURT: The assessment of whether — where a claim arises seems to focus primarily on where the decision-making occurs that is at issue. Here we've got two separate — I should say, two interrelated decisions; the selection of the project and the environmental assessment.
Where does — where do those two decisions arise? Because that is what's at issue in this case.
MR. SWANSON: I think in both instances the most correct answer is that these claims arise in the Gulf of Mexico, the Gulf States. That's where the vast, vast majority of people working on these projects were, the vast majority of the environmental review occurred, vast majority of the meetings of the executive committee; 14 of the 15 public meetings that occurred were in the Gulf. These were were Gulf centric decisions, not D.C. decisions.
And then the issue becomes, well, where in the Gulf should this go? And the answer there is this project —
THE COURT: It could be the other way, too. It's not then once we've identified a region, we then find a specific district in the region. There are at least a couple of cases in this jurisdiction that have actually said, look — the National Home Builders case, for example, in which the courts said the fact that we have such a — you know, that the decisionmaking is actually much broader than a particular locality actually suggests, that this is not something that is a particular, localized controversy.
And then most recently, Judge Contreras' decision about the leases in the Gulf, in which he essentially sort of goes in the opposite direction that you were going in, which is, yes, this, arguably, primarily impacts the Gulf States because those are the states that border the Gulf and that's where the drilling leases are. But he actually viewed that as a reason to not transfer the matter because it wasn't specific to a particular district or state.
MR. SWANSON: Right. And the problem with all these factors, of course, was that none of them are really dispositive.
THE COURT: Right. That is the problem.
MR. SWANSON: So, in the situation like this where you have decisionmaking that's certainly touched on D.C., not necessarily D.C. centric, so both outside and inside, courts then consider the other factors that come up, right? I think there's six cases that we cite, that are cited in the briefs here, that have the inside and outside D.C. decisionmaking and that — in which the motion to transfer ended up being denied.
In four of those cases D.C. was the plaintiff's home forum, which of course implicates the — choice of forum. The other two were Otay Mesa, which involved private land in California, and the court said that's private land, so that's not a local interest. So that factors away. And the second was Stand Up California, which was in the context of an emergency injunction for transferring the case.
So there's other things coming into play. And Oceana, using that as an example, there there was no land in Alabama. The leases were on federal land in the outer continental shelf. So there was no local controversy, local consideration that would have then tipped that balance back to Alabama because you have the decisionmaking that was both touched on D.C. and Gulf of Mexico.
THE COURT: Okay. Let me just ask you one last question and then, of course, I'll give you the opportunity to argue points that I may not have raised in my questions. On the issue of the deference, our courts have worded that inquiry in a variety of ways, whether there is no factual nexus, you know, if the decisionmaking process centered, is how Judge Leon phrased it in the case that he decided involving one of the Indian tribes.
On the record that I have before me, it's, I think, one thing you can agree to, is that there is a D.C. nexus to these decisions, correct?
MR. SWANSON: Yes. There is some D.C. connection, yes.
THE COURT: And we can decide what the proper verb — or, the adjective is to put in front of the word nexus. But there is certainly no factual nexus to the District of Columbia. Would you agree with that?
MR. SWANSON: There's no factual — there's no — no no factual.
THE COURT: There's no no factual, right. So in this case when there is some factual nexus—you can agree or disagree whether it's substantial, significant, whatever the word you may want to use—should I then defer to the plaintiff's choice of forum because there is a factual nexus in the District of Columbia?
MR. SWANSON: Not in this case, no.
THE COURT: Okay. Why not?
MR. SWANSON: You're correct that there is significant connection to D.C. as one of the factors, but there's also a significant connection to the plaintiff. Does the District of Columbia have a connection to the plaintiff? And here there is none. D.C. is not its own forum; there's no headquarters, there's no office. But it's more than just about offices.
There's also the fact that Gulf Restoration Network is a regionally focused organization. Its purpose is to protect and restore the Gulf region's natural resources. And when the plaintiff has no connection under the case law, that is enough, by itself, to remove that deference. Shawnee tribe, Judge Leon discussed that there. I think the Delush (ph.) opinion also says that, that when the plaintiff has no connection, that alone, then you're talking about, you know, you're thinking why are we here? And that's what we have in this case.
I think the only other points I wanted to make on the connection to D.C. and deference question, the fact that the underlying resources here that are at issue are also in Alabama, not the District of Columbia. The point of the Gulf State Park Project is to compensate for the lost use of federal and state natural resources in Alabama.
So no matter what happens in this case, whether that project goes forward, whether the money goes to some other project, whether it's just dropped all together, at the end of the day, the citizens of the District of Columbia are in no different position.
THE COURT: I don't think I asked you earlier, does the administrative record in this case have a physical location?
MR. SWANSON: You know, these days that factor — sometimes in field offices the records are kept in paper and that's an issue, but here it's all digital, so it's not a big factor.
THE COURT: Okay.
MR. SWANSON: The only point I wanted to make, and the court also had a question about the MDL, and I can answer that.
THE COURT: Yes.
MR. SWANSON: But the point I wanted to make was this local controversy, you know, and you mentioned some of the case law that references national type issues. So what is it about this case that makes it local? Well, again, there's — despite the EIS covering 44 projects when talking about the Gulf in general, this case involves one project, and that project is in Alabama. It's unlike Oceana, where there is no project in Alabama. It's a state park, the project is a state park. By its very nature its constituency is local and state constituency. It's unlike that Otay Mesa case, that was private land. It is more like Trout Unlimited and those other cases where there was some local link to the federal project.
The implementing trustee here is the state of Alabama, not the federal government, which also makes this case different. Another important point here, plaintiffs in their briefs say, you know, that this is more than just local because if this money is not spent on the Gulf State Park Project, it could go somewhere else in the Gulf. That's not entirely accurate because the trustees have an allocation agreement for that framework agreement money with BP. Each state got $100 million, so if this project doesn't go forward, the money that would have been spent is going to remain in Alabama, just for some other project.
It's also worth pointing out here that the claims in this case, three of them are EPA claims. The point of NEPA is for agencies to consider the environmental effects of their actions. Here the action is in Alabama, the environmental effects would also be in Alabama. So it is Alabama citizens that are more directly impacted, and that's what makes this case local.
The court had asked about the MDL and whether it was appropriate to transfer the case to Judge Barbier.
THE COURT: The reason I ask is because I notice the stipulation, I believe the document is called, the stipulation with respect to the Alabama Convention Center was actually filed with Judge Barbier in the MDL, and that's why I raised the question. I have some familiarity, based on my past life, with that MDL and I know how busy he is. So to the extent that one of the factors I need to consider is the congestion — the relative congestion of the dockets, I know that he is far more congested than I am. And so I know that's a consideration, as well.
MR. SWANSON: And I don't think the court even needs to get to those considerations, just because circumstances here wouldn't be appropriate to transfer to the MDL, and I'll get to that.
But to answer your point about the stipulations, the stipulation is filed there just because the framework agreement requires it. It says for informational purposes only. There's two reasons why transfer to the MDL would not be appropriate here; one is substantive and the other is procedural.
Substantively, MDLs, of course, the whole point of them is common questions of facts and to allow some efficiencies in pretrial discovery, avoid inconsistent pretrial orders. And here the MDL was created by the MDL panel and its order, it's actually at 731 F.Supp.2d 1352, and it created the MDL because the cases have a common question of fact related to the cause of the spill.
This is a very different case. For one, it's an APA case, which means that judicial review is going to be based on the administrative record. There is no fact finding. So there are no common questions of fact with the case in the MDL or any others. This case, of course, has nothing to do with the cause of the spill. Because it's an APA case, there is also going to be no discovery and no pretrial proceedings. So there's no efficiencies to be gained. The purpose of it isn't met.
In fact, Judge Barbier, on the United State's motion, early in that MDL, removed two APA cases. We had argued the same reasons, that they're not appropriate, and he ultimately dismissed them.
The procedural reason is because we're not in the Eastern District of Louisiana. The order transferring the case to the MDL would have to come from the multidistrict litigation panel.
So with that, I didn't have anything else, unless you have any further questions.
THE COURT: No, I have nothing further. Thank you, Counsel.
It's Mr. Wiygul?
MR. WIYGUL: Wiygul, Judge.
THE COURT: W-I —
MR. WIYGUL: W-I-Y-G-U-L.
Thank you, Judge. I appreciate the opportunity to be here today. I don't know if you have specific questions for me to start with, but — THE COURT: A few.
MR. WIYGUL: If I may, could a respond to a couple points that were made here that I think are particularly important?
THE COURT: Sure.
MR. WIYGUL: The federal defendants are really asking the court here to break some new ground in terms of transfer of cases under 1404(a) in this district. They're asking you to take a case, which everyone can see it's properly before this court and that has a connection to this district — and I'll tell you why it's substantial in just a minute. And everybody can see it's your decisions and decision-makers here. The documentation was signed here and they're asking you to move it to a forum where there were not federal decision-makers or, as you said, the claim did not arise. There wasn't a decisionmaking process in the Southern District of Alabama and there aren't any state law questions, and there's not even state law decision-makers in the Southern District of Alabama. All issues in this complaint and in this matter are federal. National Environmental Policy Act and the Oil Pollution Act.
There are no state issues that are at play here. And that is a contrast, a very stark contrast to cases like the Trout Unlimited case that's been cited in Colorado where you're going to have state law issues that would come into play. It's a very stark contract to the National Wildlife Federation case.
In Florida, for example, where you had a whole panoply of impact of that decision which was made in Florida, with Florida decision-makers, that's going to have — gosh, they had a huge list of them; navigation, tourism, waterfront, and everglades.
THE COURT: Let me press you on that a little bit, because what struck me as unique about this case, and unlike the others that we had seen in this jurisdiction, is that there truly are state actors involved in the decisionmaking here. I'm not aware of any case in this jurisdiction—I'm happy to be told otherwise—in which there are actually state actors. Both — in this case you had Alabama state legislature actually passing legislation of some kind authorizing the convention center or the use of the funds for the building of a convention center. You have an Alabama trustee that vetted projects, potential projects, and made a recommendation to the other trustees.
Why does that make this case different than a lot of the other cases in which the court has said, you know, we'll keep it here, even though there is a local impact?
MR. WIYGUL: I'll you why, Judge. Because this is a situation where we're talking about what the federal trustees did and the decision that they made. Without the federal trustees—implying that there are obligations under federal law which were not shared by any of those state actors—this project would not have gone forward. That framework agreement and — I want to go a little bit further back in the process because I think it's very important in this case. Without that framework agreement which structured this whole process and really drives this whole process, without the federal trustees agreeing to that framework agreement, this case wouldn't even be here today. They have a veto over this project.
THE COURT: Is that accurate, that they have a veto over this project?
MR. WIYGUL: If they do not, I'm subject to being corrected. But if all of the trustees do not agree to a project, that project is not going to be part of the process. I would be happy to be corrected if I'm wrong about that, but that's my understanding.
THE COURT: Okay. I'll ask counsel for the government to address that.
MR. WIYGUL: Sure. So what we're talking about here are federal obligations, not the state trustees' obligations. This is a federal matter that deals with federal law and process and whether bad process leads to a bad outcome, which is something that we, as attorneys, are all very familiar with.
THE COURT: Now, of course, most of the cases are of that nature, correct? I mean, most of the cases in which this transfer issue arises involve challenges to federal decisionmaking and whether they comply with federal law.
MR. WIYGUL: Absolutely true.
THE COURT: That issue, by itself, really doesn't move the dial, or shouldn't move the dial. The real question, in my mind, is does the substantive decisionmaking happen in this district? At least that seems to be one of the key factors. And if it doesn't happen here, if it's happening elsewhere, that seems to be a pretty significant issue that the courts in this jurisdiction have looked to to determine whether to transfer or not.
MR. WIYGUL: Can I put that in a little context? Because I think that's a very important part. You do have multiple cases from this district in which you have — and this is certainly to be expected in this day and age, there's going to be decision-makers or processes in different places. Absolutely true. I mean, D.C., Silver Spring — Silver Spring is one Metro stop from D.C. I don't think any of us would say that that office is not in the D.C. orbit here, certainly.
But you have diffused decisionmaking processes. And what some of the cases have said, again, as you've noted, that's what really shows that there's a national interest and this is not a localized controversy. And it also means that the Southern District of Alabama doesn't have any more claim to this than any other venue does.
Now, this is interesting to me, when you read these cases, and I may be getting a little into leads here, section 1404 (a), you know, that started out as a statutory articulation of forum non conveniens, right? For the convenience of the witnesses and the parties. And what the Supreme Court has said about it, it's to afford defendants protection where the maintenance of the action in the plaintiff's choice of forum will make litigation oppressively expensive, inconvenient, difficult or harassing to defend. And what, you know, we are really getting to here is they don't say it's inconvenient for them to be here at all. They're saying that my client ought to find it inconvenient to be here. But we do not.
We chose this forum because these decisions started at the top here in D.C. and this framework agreement that we talked about, the structure of this, this was signed by Ken Salazar when he was secretary of the Interior, Jane Lubchenco when she was running NOAA, signed by Mr. Verrilli over at the Justice Department here in D.C., and these results flowed from that.
THE COURT: One of the questions I had for you is how do I deal with the issue of — for presumption of the plaintiff's selection of forum? We've got — I think those are two competing strains here. There's a line of cases and authorities that say if there is some nexus or a factual nexus to the District of Columbia, then the presumption is to be respected. On the other hand, there's a line of cases, with the Piper Aircraft decision in the Supreme Court, that says if the plaintiff is not — is foreign, as your client is, doesn't actually reside in the District of Columbia, then that difference is diminished.
So I've got two competing strains here and ultimately where do I come out?
MR. WIYGUL: The way that the cases and the way that the courts — and I'm talking about Gulf Oil Corporation v. Gilbert here and, for example, the Akiachak case here in this forum. The way that is articulated is typically conjunctive, Judge. It is — I'm quoting here: Plaintiff's choice of forum is usually accorded great deference, unless the plaintiff chooses a forum that is not his home and that has no substantial connection to the subject matter of the action.
THE COURT: I know those two cases do that. But the Supreme Court is also telling me, in Piper Aircraft, which is a forum non conveniens case, to afford less deference when the chosen forum is not that of the plaintiff, when the plaintiff is actually foreign to that forum.
MR. WIYGUL: In some ways — have you ever run into one of those cases where you have an evidentiary standard, something like clear and convincing evidence, right, which none of us know how that differs from a preponderance of the evidence, really. I think the important point here is we still get deference, it's just a somewhat lesser deference. And they don't tell the court how much that deference is supposed to be lessened. And I'll tell you, on a case like this, it shouldn't be.
Again, this was and is an issue of national importance. It's an issue that had key decisions being made here in the District of Columbia. In fact, the weight of the people signing these documents — and while I understand decisionmaking processes may be different from the signer, one certainly hopes a signer is reading a document and making a decision for that agency.
Now, again, these days the idea that an entity that is based in New Orleans, Louisiana is somehow handicapped or has less deference, we all work all over the country. Organizations like that may be based anywhere and work all over the country. This case came here because this is where decisions were being made and because, frankly, the D.C. Circuit is less congested than the Eleventh Circuit.
THE COURT: Let me ask you the following, whether you would agree to the following: Would you agree that the Alabama Convention Center Project, the economic, environmental impacts of that project are primarily going to be felt in Alabama?
MR. WIYGUL: Judge, let me — I would not necessarily agree with that as articulated. Because, again, this is funding that came about as a result of a settlement. There was an allocation formula that was put in place, that's certainly true. Even if this goes to other resources in Alabama, right? it may go to curing problems with federal resources if damaged by the oil spill, as well. And these are things that affect all people of the United States.
Yes. I will tell you this, and it would be disingenuous to say otherwise, yes, the place where this would be built will be in Alabama and there is a local interest. They've been trying to get this funded for 15 years. But, among the things that they say is that the idea is this is going to bring a bunch more people to the beach, right? So people can enjoy the beach at this convention center and hotel. Those are not going to be folks from the Southern District of Alabama, they're going to be folks from all over the place.
THE COURT: Yeah, maybe. But, look, I have a hard time — and I appreciate your trying to — your answer, but, this does strike me as a — unlike some of the other decisions in this jurisdiction in which, for example, that may have involved an easement or some kind of property dispute in a remote region in the state, this is a fairly localized project, that the impacts will be felt locally, in terms of employment, environmental impacts. Any impact on the economy is all going to be felt in Alabama. So if that's the case, and I know you can — you disagree with me on that, but if that's the case, are there cases that you're aware of in which that kind of impact, in which you have that kind of local impact, in which there hasn't been a transfer?
MR. WIYGUL: Judge, I would look at the Otay Mesa Property Owners Association case.
THE COURT: But, of course, that's a private land case out in San Diego, it's private landowners. That case is different. You've got a state park here and the impacts are going to be much broader than a couple of private landowners.
MR. WIYGUL: Let me disagree with you to some extent there. I'm not sure this is different, and I'll tell you why; because this hotel and convention center, I don't believe the state of Alabama is going to be running it. It's going to be a hotel corporation. I mean, this is fundamentally — it's no different than if it was a private enterprise that was running the hotel. And that's, to me — I think it's quite similar.
THE COURT: We don't have private parties involved right now and the decisionmaking that you're challenging doesn't involve a private party, unlike the Otay Mesa case. So, other than Otay, are you aware of any other case in which the, kind of, localized economic, environmental interests exists in which it was not transferred because the decisionmaking was done in the District?
MR. WIYGUL: I'll look at this again, but, the Greater Yellowstone Coalition case, which involved a federal grazing lease out there and, of course, having practiced out west, I know that federal grazing leases occupy an exalted position, both in our mythology and in the economy out there. And so I think that's another situation where you're really looking at something that's quite similar. And that was, of course, federal grazing leases are public property. That was another — that was a situation where there were actually decision-makers in the forum for the federal defendants.
You know, Judge, leaping back, I think Gulf Restoration Network is still entitled to deference for its choice of forum here. And this forum has more substantial connections than the Southern District of Alabama does in terms of decisionmaking process.
Now, I do want to say this: The executive committee and some of the things that were brought in here today were not in the briefings. We have not had a chance to respond to those. What was in the briefing was, with deference to my colleagues here, quite modest, in terms of its description of the decisionmaking process.
THE COURT: Which is why I called the hearing, because I wanted more facts about it.
MR. WIYGUL: Right. And, Judge, if we're going to be really looking at having additional information submitted to the court, I feel like I need to say for my client, we need the administrative record because that's going to tell us what decisionmaking process actually took place here in D.C. We don't get to do discovery in these cases.
THE COURT: No, I understand. My understanding is the administrative record is public, it's online.
MR. SWANSON: Sort of the documents may be online, but the actual whole record as certified is not yet. I don't think that certification is completed.
THE COURT: Okay. Okay. Your point is a good one and it's one I want to ponder a little bit. But if you have further argument, I'm happy to hear it.
MR. WIYGUL: I do just have a couple of points. Judge, as you noted, the — many of the factors that traditionally have been looked at don't come into play here. And frankly, I think at some point that needs to be overhauled to recognize that we have these electronic administrative records and all that and there's no longer a physical nexus in these kind of cases to any particular place.
But, there is some case law here which addresses whether a controversy is local in nature and sets out a number of factors, including where the challenged decision was made, which was not in the Southern District of Alabama. Whether the decision directly affected the citizens of the transferee state. Which I think we've acknowledged that, yes, they've wanted to be build this and it will be built there. Location of the controversy, which is really here. Whether the issue involves federal constitutional issues rather than local property laws or statutes, which is — this is all about federal laws. Whether there are issues of state law, which there are not. Whether the controversy has national significance, which clearly it does. Absolutely does. And I would disagree strenuously with any claim that this is a local controversy. And whether there was personal involvement by a District of Columbia official, which there was. And it's National Wildlife Federation v. Harvey, 437 F.Supp.2d 42.
All of those really point to this is not a localized controversy. And even — you know, you can push the deference level down and this forum still has more connection than the Southern District of Alabama does because that's just not localized controversy.
Now, Judge, if you have any other questions, I would be happy to answer them.
THE COURT: I don't at this time. Thank you very much.
MR. SWANSON: Your Honor, a couple of questions you had asked me during —
THE COURT: Yes.
MR. SWANSON: You asked about consensus decisionmaking on the part of the trustees. The framework agreement with BP, BP does ask that all the trustees have consensus on projects for early restoration. However, the allocation agreement between the trustees, where they're allocated certain amounts of money, says that if a trustee is making use of that money and proposes a project for its money, that that's majority decisionmaking. And that is just a move for the planning process.
THE COURT: I'm sorry. I didn't understand that.
MR. SWANSON: So the allocation agreement, which dedicated or identified $100 million for each of the states, says that if that trustees want to move forward with a project, presents it to the council, that it's a majority vote to begin the planning process to include that project. But at the end of the day, the framework agreement with BP, what would be at the ROD stage, still requires consensus decisionmaking.
THE COURT: Okay. So, Gulf Restoration's counsel used the word veto. So let me ask the question this way: If one of the federal trustees had said no, this project is not consistent with the restoration purposes of the framework agreement, is it accurate to say that the project would not have gone forward?
MR. SWANSON: The early stage of —
THE COURT: At whatever stage.
MR. SWANSON: I think — and this has not happened, so I don't know how it would play out.
THE COURT: I understand.
MR. SWANSON: And I think the politics of the group probably would prevent this from happening, but if you do the math on the allocation agreement, there's nine trustees, if you count the states and the four federal agencies. So if all four said no and all states said yes, you would still have a majority for moving forward with the planning. But at the end of the day, I think you would need all trustees to say yes for a project.
THE COURT: Bottom line is if the federal government — if the federal government had said — had concluded that this project was not consistent with the framework agreement and its purposes and the Oil Pollution Act purposes, etcetera, fair to say the project would not have gone forward?
MR. SWANSON: I think that's probably a fair conclusion, yeah. Yeah.
I'm trying to read my notes here. In your conversation with Mr. Wiygul you were talking about the connection to D.C. And I think there's important — he keeps making the point that there's no decision-maker in Alabama. I don't think that's accurate because of the role the Alabama trustee played here and also federal staff in Alabama that was involved in all this. But, the question for connection to D.C. is D.C., not the transferee forum. The transferee forum comes into play in the local controversy. But if you're trying to address that connection to D.C., where those other decision-makers may be outside of D.C. is not relevant.
There's also the issue of the administrative record. The administrative record is being developed. It is not complete. It would be premature to file it now, as it is not ready and because different courts across the country have different procedures and rules for administrative records. So if we file now and end up in Alabama, it would just slow the case.
THE COURT: All right, folks. This has been extremely helpful, informative, and very grateful for the presentation of both counsel. And we'll take it all under consideration. We'll have a decision for you soon. Thank you.
CERTIFICATE OF OFFICIAL COURT REPORTER
I, JANICE DICKMAN, do hereby certify that the above and foregoing constitutes a true and accurate transcript of my stenograph notes and is a full, true and complete transcript of the proceedings to the best of my ability.
