GULF RESTORATION NETWORK v. JEWELL et al
AMENDED MEMORANDUM AND OPINION. Signed by Magistrate Judge Amit P. Mehta on 4/9/2015. (Attachments: # 1 Transcript) (eec)
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Gulf Restoration Network,
Secretary of the Interior, et al.,
Civil No. 14-cv-01773 (APM)
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.
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A. The Parties
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.
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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.
B. The Decisions at Issue
The process that led to the selection and approval of the Project took place over a threeand-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.
1. The Spill and Early Restoration Efforts
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
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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”).1 ROD at 1-2. The Trustees were responsible for “assess[ing] natural resource
damages” and “develop[ing], and implement[ing] a plan for the restoration, rehabilitation,
replacement, or acquisition of the equivalent, of the natural resource” harmed by the Spill.
33 U.S.C. § 2706(c)(1). The State trustees included the Alabama Department of Conservation and
Natural Resources and the Geological Survey of Alabama (collectively, the “Alabama Trustees”).2
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
EPA, USDA, and the Florida Fish and Wildlife Conservation Commission were not initially designated as Trustees,
but were added thereafter. See Mot. at 3 n.1.
The “State trustees” also include five Louisiana agencies (The State of Louisiana’s Coastal Protection and
Restoration Authority; Louisiana Oil Spill Coordinator’s Office; Louisiana Department of Environmental Quality;
Louisiana Department of Wildlife and Fisheries; Louisiana Department of Natural Resources), three Texas agencies
(Texas Parks and Wildlife Department; Texas General Land Office; Texas Commission on Environmental Quality),
two Florida agencies (Florida Department of Environmental Protection; Florida Fish and Wildlife Conservation
Commission), and one Mississippi agency (Mississippi Department of Environmental Quality). ROD at 1-2.
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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. ¶ 4.3
2. The Project’s Selection
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.
In opposition to Defendants’ motion, Plaintiff asserts that the Framework Agreement, and the fact that three of its
signatories—Kenneth L. Salazar (DOI), Jane Lubchenco (NOAA), and Thomas J. Perrelli (DOJ)—are based in the
District of Columbia, evidences a connection between the District of Columbia and the decision to approve the Project.
See Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mot. to Transfer Venue, ECF No. 9, at 7 [hereinafter Pl.’s Opp’n]. The
court is not persuaded by this argument. Plaintiff challenges the decision to approve the Project; it does not challenge
the decision to execute the Framework Agreement. The Framework Agreement provides necessary context for the
decision at issue and thus is relevant to this discussion, but the physical location of its signatories does not bear on the
court’s decision regarding Defendants’ motion.
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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,4 and one was based both inside and
outside the District of Columbia.5 The parties did not present evidence as to the location of each
state’s primary and alternate representative, but the court assumes each was based in the state that
he or she represented. The Executive Committee did not have a permanent location; it often
operated “virtually.” Hr’g Tr. 7:8-14. It met on 12 occasions during the relevant period; none of
the meetings were held in the District of Columbia.6 Id. at 9:13-15.
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
Cythina Dohner (DOI) was based in Atlanta, Georgia; Craig O’Connor (NOAA) was based in Seattle, Washington;
Ben Scaggs (EPA) was based in Stennis Space Center, Mississippi; and, Homer Wilkes (USDA) was based in
Madison, Mississippi. Defs.’ Suppl. at 1-2.
Michele Laur (USDA) was based in the District of Columbia from December 2012 to May 2013, and in Madison,
Mississippi, and Tampa, Florida, thereafter. Id.
Defendant submitted the minutes of seven Executive Committee meetings at which the Project was discussed. See
Defs.’ Suppl., Ex. 2. Two of the minutes note the meeting’s physical location—Shepherdstown, West Virginia, and
San Antonio, Texas—while the other five do not. Id.
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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.
3. The Project’s Environmental Impact Statement
Selection and approval of the Project also involved the preparation of an “environmental
impact statement,”7 as required by NEPA. See 42 U.S.C. § 4332(2)(C).
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.
An environmental impact statement, which “all agencies of the Federal Government shall . . . include in every
recommendation or report on proposals for legislation and other major Federal actions significantly affecting the
quality of the human environment,” must address the following: “(i) the environmental impact of the proposed action,
(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives
to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance
and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented.” 42 U.S.C. § 4332(2)(C).
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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
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.
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4. The Project’s Final Approval
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
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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).
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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
A. Original Venue
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.
B. Private-Interest Factors
1. Plaintiff’s choice of forum
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
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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.”).8
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
In Piper Aircraft, the U.S. Supreme Court analyzed the doctrine of forum non conveniens, not statutory venue transfer
under section 1404. Piper Aircraft is nevertheless binding on this court’s transfer analysis because “Section 1404(a)
finds its origins in the doctrine of [f]orum non conveniens.” SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154 (D.C. Cir.
1978) (citation omitted). The Supreme Court has recognized that section 1404(a) is a revision as well as a codification
of the forum non conveniens doctrine, which requires a “lesser showing of inconvenience” to transfer than that
required for a forum non conveniens dismissal. Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955); see also Savoy
Indus., 587 F.2d at 1154.
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Columbia-based officials9 provided necessary final approval10 of the Project by signing the ROD,
the Stipulation, or both.
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.
The number of District of Columbia-based officials includes Mr. Westerholm and Ms. Soebeck of NOAA, both of
whom were based in Silver Spring, Maryland. Other courts in this district have considered a party’s contacts to the
District of Columbia to include residence in a nearby suburb. See, e.g., Trout Unlimited, 944 F. Supp. at 17 (finding
one of the plaintiff’s Northern Virginia residence to be “the only [relationship] this suit bears to the District of
At oral argument, Defendants’ counsel conceded that “at the end of the day, I think you would need all trustees to
say yes for a project” in order for it to go forward. Hr’g Tr. 42:6-7.
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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.
2. Defendants’ choice of forum
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
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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
3. Where the claim arose
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”);
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 16 of 22
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
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 17 of 22
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).
4. Remaining private-interest factors
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
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 18 of 22
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
C. Public-Interest Factors
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
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 19 of 22
is neutral. Home Builders, 675 F. Supp. at 178. Statistics show and the parties agree that the
congestion of the two dockets is comparable.11 See Pl.’s Opp’n at 16.
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
Though Plaintiff does not contest the similarity of the two relevant district court dockets, it argues that the “marked
contrast between the relative docket congestion” of the U.S. Court of Appeals for the Eleventh Circuit, which has
jurisdiction over appeals from the Southern District of Alabama, and the U.S. Court of Appeals for the District of
Columbia, which has jurisdiction over appeals from this court, weighs in opposition to transfer. See Pl.’s Opp’n at 16
n. 3. In analyzing the relative congestion of transferor and transferee court’s dockets, courts in this district focus on
the dockets of the district courts that may hear the case. See, e.g., Trout Unlimited, 944 F. Supp. at 19 (analyzing the
relative docket congestion of this district and the Northern District of Colorado). The court finds no reason to deviate
from the well-settled framework of analysis here.
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 20 of 22
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.12 A decision regarding the development of Alabamaowned and controlled land directly and “necessarily implicates considerable local economic,
political, and environmental interests.” Shawnee Tribe, 298 F. Supp. 2d at 26 (finding “the most
persuasive factor favoring transfer of this litigation to Kansas [to be] the local interest in deciding
a sizeable local controversy at home,” and transferring the case to the District of Kansas); cf. Home
Builders, 675 F. Supp. 2d at 178 (denying transfer where “[t]here is no indication . . . that the
designation of the relevant reaches of the Santa Cruz River as traditional navigable waters will
have a major impact on local economic, political and environmental interests”). For that reason,
it is not surprising that Alabama officials and citizens were integrally involved in the selection and
approval of the Project. See supra Part IV.B.3.; see also Trout Unlimited, 944 F. Supp. at 19-20
The Amended Complaint notes that, thus far, six Alabama governors have tried and failed to complete the Project,
which has now been approved. See Am. Compl. ¶ 48.
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 21 of 22
(characterizing the controversy at issue as “localized” in part due to the decision-making that
occurred in Colorado, and transferring the case to the District of Colorado).
involvement of federal and state officials outside of Alabama illustrates the enormity of the Spill’s
impact, that fact does not eclipse the substantial interest of Alabama’s citizens in having litigation
about a development project on state-owned land, whose impact will primarily be felt by
Alabamans, decided in a local forum.
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”).
Case 1:14-cv-01773-APM Document 20 Filed 04/09/15 Page 22 of 22
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.
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