Filing 21

AMENDED MEMORANDUM AND OPINION. Signed by Magistrate Judge Amit P. Mehta on 4/9/2015. (Attachments: # 1 Transcript) (eec)

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 1 of 44 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 2 3 Gulf Restoration Network, 4 Plaintiff, 5 6 v. Sally Jewell, et al., 7 8 Defendants. 13 14 APPEARANCES: For the Plaintiffs: Robert Wiygul Waltzer & Wiygul, LLP 1011 Iberville Drive Ocean Springs, MS 39564 For the Defendants: Kristofor Swanson Department of Justice P.O. Box 7611 Washington, DC 20044 17 18 19 20 21 22 23 24 25 March 3, 2015 10:00 a.m. ________________________________________________________ 15 16 Date: Time: TRANSCRIPT OF ORAL ARGUMENT HELD BEFORE THE HONORABLE AMIT P. MEHTA UNITED STATES JUDGE 10 12 File No. CA 14-1773 _______________________________________________________ 9 11 ) ) ) ) ) ) ) ) ) Court Reporter: Janice E. Dickman, RMR, CRR Official Court Reporter U.S. Courthouse, Room 6523 333 Constitution Avenue, N.W. Washington, DC 20001 (202) 354-3267 * * * 1 2 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 2 of 44 1 THE COURT: Bear with me for one moment. We're 2 still trying to work the kinks out here. 3 for being here this morning and working with Miss White to 4 be here this morning. 5 Thanks, everyone, The reason I called this hearing -- and we're 6 here, obviously, on the defendant's motion to transfer this 7 matter to the Southern District of Alabama. 8 at the cases, read all of your papers, which have been very 9 helpful. I have looked And the -- you know, the courts in this 10 jurisdiction have looked at a number of factors, all of 11 which you have pointed out, both public and private, in 12 determining whether to transfer a case outside the District 13 of Columbia. 14 The courts have looked at -- I believe it's nine 15 factors. But really, when you look at those factors, there 16 are really only three that, certainly in this case and in 17 most cases, that come into play. 18 plaintiff's choice of forum and the amount of deference 19 that's to be afforded to the plaintiff's choice of forum. And that is the 20 Two, where the claim itself actually arises. 21 three, whether the controversy at issue is one that is 22 properly characterized as one of more national scope or more 23 local interest. 24 25 And, 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 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 3 of 44 3 1 this case, I think, is fairly unique in that while it 2 involves what it arguably a local -- or, what is a local 3 project; a local project, the Alabama Convention Center 4 arises out of an event, certainly of national importance and 5 national scope, the Deepwater Horizon oil spill. 6 arises out of, from what I can tell, a sort of unique 7 federal-state process by which this was one of, I think, 44 8 projects selected for early restoration work. 9 And it And so, I'm still undecided about what to do, I 10 will be perfectly honest with you. 11 this is to get some help from counsel in answering some 12 questions that I have, that I don't fully appreciate the 13 answers to, that really have to do with the three areas, the 14 three factors I just identified. 15 called this hearing and would appreciate counsel's efforts 16 in helping me answer some of those questions. 17 And the reason I called And so, that's why I've So, let me, actually, ask government counsel to 18 begin. And I'm sure you have prepared remarks and have 19 things you would like to present to the court, but I have a 20 number of questions that I'd just like to jump into, if 21 that's okay with you. 22 MR. SWANSON: 23 THE COURT: Absolutely. Whatever you prefer. The first is a fairly routine question 24 and that is I am not quite sure I understand the difference 25 between what is Defendant's Exhibit 3, which is styled 4 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 4 of 44 1 Programmatic and Phase III Early Restoration Plan, and Early 2 Restoration Programmatic Environmental Impact Statement, 3 which is dated June of 2014 and what is your Exhibit 1, 4 which is the record of decision that effectively has the 5 same title but is dated several months later and signed 6 October 2nd, 2014. 7 8 Could you just tell me what -- and you're Mr. Swanson? 9 10 MR. SWANSON: Kristofor Swanson, yes, representing Federal Defense. 11 THE COURT: What's the difference between those two? 12 MR. SWANSON: Exhibit 4 is the restoration plan 13 and environmental impact statement, and that is a 14 requirement of the Oil Pollution Act and the National 15 Environmental Policy act in this case. 16 THE COURT: 17 MR. SWANSON: 18 THE COURT: 19 Exhibit 4 is the stipulation. I'm sorry. Right. Exhibit 3. The one with the nice photograph of the beach. 20 MR. SWANSON: I'm sorry. Exhibit 3 is the 21 Restoration Plan and Environmental Impact Statement. And 22 those are planning documents required by law under the Oil 23 Pollution Act, OPA, and the National Environmental Policy 24 Act, NEPA. 25 factors for restoration projects and getting public input In OPA it is for purposes of considering the Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 5 of 44 1 and comments on this projects. 2 federal agencies to consider the environmental effects of 3 their actions before they act. 4 either an environmental assessment or environmental impact 5 statement. 6 5 statement. 7 And for NEPA, NEPA requires And that's done through In this case it was an environmental impact So those are procedural steps before you get to 8 the actual decision, which is the record of decision in this 9 case, which is Exhibit 1. 10 THE COURT: So Exhibit 3 is both -- is really the 11 environmental impact statement? 12 MR. SWANSON: 13 THE COURT: 14 Extracts of it, yes. Extracts, okay. Okay. And then the record of decision is the final document? 15 MR. SWANSON: 16 THE COURT: That's right. That incorporates both the selection 17 of the various projects -- or, identifies the projects and 18 then also incorporates the impact statement that is dated 19 June 14th? 20 MR. SWANSON: That's right. Relies on the impact 21 statement for both other purposes and NEPA purposes. 22 Documents the information that the agencies are relying upon 23 to reach their decision, what they considered in reaching 24 the decision. 25 THE COURT: That's helpful because I wasn't 100 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 6 of 44 1 6 percent clear on the difference between the two exhibits. 2 So let me ask you, and one of the reasons -- one 3 of the questions that I posed in the order convening this 4 hearing, was I'm still unclear on precisely what -- how this 5 process worked. 6 process here, because we really have two separate but 7 related processes here. 8 Alabama Convention Center and then we have the environmental 9 review. Specifically, when they talk about which We have the selection of the I understand the two of them are related, but I 10 would like to think of them separately just for these 11 purposes. 12 Can you explain to me how the selection actually 13 came about? 14 of the Alabama trustees and the other state trustees, to the 15 extent they had a role, and the federal trustees. 16 And in addressing that, address both the role MR. SWANSON: Sure. You know, you said something, 17 Your Honor, at the very beginning here which I think is very 18 at the point, and that is a very unique process that state 19 involvement -- unlike a lot of the case law that the parties 20 relied upon, this was not a federal agency acting 21 unilaterally. 22 multistate and federal trustee council aimed at restoring 23 some of the resources that were damaged. 24 25 There's federal involvement here on a So for purposes of including this Gulf State Park project in the Phase III planning, that's done on the 7 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 7 of 44 1 trustee -- through the trustee council, which includes state 2 and federal representatives. 3 that council is really done through what's called an 4 executive committee. 5 a principal representative and an alternative representative 6 from each of the five states and the four federal trustee 7 agencies. 8 9 THE COURT: And the day-to-day work on On that committee there are -- it was Does that committee have a physical location? 10 MR. SWANSON: It does not. They, as you would 11 expect, being gulf centric here, a lot of their 12 correspondence is done through e-mail and telephone. 13 THE COURT: Okay. 14 MR. SWANSON: So they act virtually. Right. But the relevant period 15 here, I think, is March 2012 through May 2013, in terms of 16 including Gulf State Park in the Phase III planning. 17 2012 is what we identified when that trustee council started 18 to consider this project as part of the Phase III project. 19 And May 2013 was the date when the trustees publicly 20 announced their intent to move forward with that Phase III 21 planning. 22 THE COURT: Let me interrupt. March So am I 23 understanding correctly that the trustee council, and that's 24 composed of both the federal and state trustees, began 25 considering this project in March of 2012, is that right? 8 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 8 of 44 1 MR. SWANSON: 2 THE COURT: That's right. So who proposed the convention center 3 as a project for the trustees considering? 4 specifically -- if you look at Exhibit 3, page 57, what's on 5 page 57. 6 trustees consider a range of project types to determine how 7 best to proceed with early restoration projects aimed at 8 restoring lost recreational use." 9 I'm First full paragraphs starts, "The Alabama A couple pages earlier, on what is page 1, it's a 10 couple pages earlier in the exhibit: 11 proposed to be implemented in Alabama are being put forth by 12 the trustees, the specifics of each project in this region 13 were developed and brought to the trustees for approval by 14 the, quote, implementing trustees. 15 would be the Alabama trustee. 16 trustee conducted an initial screening process to decide 17 which projects to move forward to the trustee council for 18 consideration as an early restoration project proposal. 19 20 21 While all the projects For this project that Then it goes on to say: Each 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 22 other states do, has a public projects solicitation process. 23 They have a website where the public can submit projects for 24 consideration, both in early restoration and on the longer- 25 term restoration that would occur. This project was one of Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 9 of 44 9 1 those submitted. Alabama had its own internal screening 2 process to select projects for early restoration and Alabama 3 proposed the Gulf State Park project to the trustee council 4 for inclusion in Phase III. 5 THE COURT: Okay. 6 MR. SWANSON: And then from there the trustee 7 council again acts through those principal representatives 8 and the alternates. 9 and some negotiation with BP because this is their latest 10 restoration that BP will fund, and then at the end of the 11 day decide to include projects in Phase III. 12 They do a -- some technical screening You had asked if there is a location of that 13 executive committee. 14 did meet 12 times. 15 District of Columbia. 16 17 18 There is not. But as I mentioned, it None of those meetings were in the THE COURT: That's separate from the public meetings. MR. SWANSON: That's separate from the public 19 meetings, which were part of the environmental review 20 process, EIS. 21 THE COURT: 22 meetings are you talking about? 23 So what are you talking? MR. SWANSON: What This is the executive committee of 24 the trustee council, meeting to discuss negotiations with 25 BP, discuss projects, move forward with various things for 10 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 10 of 44 1 restoration. 2 3 THE COURT: Are these open meetings, closed meetings? 4 MR. SWANSON: I believe they're closed meetings, 5 but there are some publicly available documents that are 6 posted on websites. 7 8 THE COURT: at those meetings? 9 10 Would this project have been discussed MR. SWANSON: Yes, potentially, during that time period. 11 THE COURT: Is there a record of that discussion? 12 MR. SWANSON: The meeting minutes, I think, 13 reflect discussion at three or four of those meetings. 14 not recalling the specific dates. 15 16 THE COURT: Okay. I'm I would like you to submit those to the court. 17 MR. SWANSON: 18 THE COURT: The meeting minutes? The meeting minutes. And 19 particularly, if any of the meeting minutes reflect 20 discussion about this project. 21 MR. SWANSON: 22 THE COURT: 23 24 25 Okay. 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 11 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 11 of 44 1 those occurred in D.C. 2 a park service facility in West Virginia, and the remainder 3 were in the other four Gulf States. 4 THE COURT: One was in Alabama, one was in -- at Okay. So, once the project itself, 5 the Alabama Convention Center project is proposed to the 6 executive committee, can you tell me what the individual 7 federal trustees did in terms of assessing the project? 8 specifically, who's doing the assessing and where is the 9 assessing taking place? 10 11 12 MR. SWANSON: review process. And Now we're moving to the EIS and that That also -- THE COURT: I'm sorry. I'm sticking just with the 13 actual selection of the convention center. 14 you've told me, as I understand it, is that the Alabama 15 trustee makes a proposal to the council, the council 16 consists of both the federal and state trustees. 17 ultimately, seems like everybody needs to sign off, all of 18 the trustees, both federal and state, must sign off before a 19 project is approved, is that correct? 20 21 22 MR. SWANSON: Because what So -- and The framework agreement with BP requires that, yes. THE COURT: Okay. So, I take it that the federal 23 trustees must have done some evaluation of the -- whether 24 the project complies with the Oil Pollution Act and the 25 framework agreement? Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 12 of 44 1 MR. SWANSON: Right. Yes. 12 There is some initial 2 screening that is done to consider presenting projects to BP 3 for negotiation purposes. 4 the projects are consistent with OPA and the review required 5 by NEPA, that is done through the EIS process. 6 But the final review of whether So the way the process worked is projects are 7 bought forth by the trustees, the council determines 8 collectively whether or not to negotiate with BP regarding 9 those projects for inclusion in the restoration. If an 10 agreement with BP is reached, yes, we think we can use early 11 restoration funding on these projects, then the trustees 12 collectively move to that public review process under OPA 13 and NEPA using EIS as that document, develop the public 14 comment that is considered in their review and then 15 ultimately get to the record of decision point, which is the 16 final decision to move forward with those projects. 17 THE COURT: Okay. And so what then -- I've got a 18 Phase III document and it's important to know who signed it. 19 But -- and in particular, just -- it's you've got three -- 20 you've got four federal trustee signatories. 21 Agriculture, EPA, Interior, and NOAA, those are the four. 22 Two of those four signatories, the individuals, Miss 23 Kopics--probably pronouncing her name incorrectly, I 24 apologize to her--Miss Mills are both clearly D.C. based. 25 The NOAA signatory is based in Silver Spring. You've got 13 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 13 of 44 1 MR. SWANSON: 2 THE COURT: And one is in Seattle, Washington. I have Cynthia Dohner, the signatory 3 in Atlanta, and then one of the NOAA signatories is in 4 Seattle. 5 Kopics and Miss Mills did, or whether others who reported to 6 them did, in evaluating this project. 7 So tell me what, to the extent that you know, Mr. MR. SWANSON: I don't know the details of their 8 deliberations. I do know that the individuals that signed 9 the ROD are not necessarily the individuals that are serving 10 on the executive committee. I think that the number count, 11 in terms of D.C. versus elsewhere, is the same. 12 Kopics is also the principal representative. For EPA Mr. 13 For agriculture, however, the principal 14 representative is the director of their restoration team and 15 he is based in Madison, Mississippi. 16 folks who were -- the first instance, the principal 17 representatives on the executive committee. 18 alternates also. 19 Mississippi during this time period and USDA's alternate 20 during this time period was based out of D.C. And they would be the There are EPA's alternate was based out of 21 THE COURT: Out of D.C.? 22 MR. SWANSON: 23 THE COURT: Right. And what's your sense of -- again, to 24 the extent you know, what's your sense of what each of these 25 individual federal trustees did in reviewing the project? I Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 14 of 44 14 1 can see various possibilities, one of which is, for example, 2 one of the federal trustees took a lead and the others 3 essentially followed. 4 an independent obligation to make their own assessments and 5 they did that. 6 played out? 7 Or perhaps each of the trustees felt What's your sense of how this actually MR. SWANSON: I think if you're talking -- my 8 sense, if you're talking about the final record of decision, 9 sort of, is this a no-go, go type signature, that's 10 something, certainly, each agency independently reached. 11 I'm sure they collaborated in reaching that decision. 12 But if you're talking about the environmental 13 review process and that public process and developing that 14 documentation and the information considered, there was 15 certainly lead agencies there. 16 THE COURT: 17 Okay. We'll talk about the environmental review process in a moment. 18 Question about the -- so, fair to say then -- 19 well, would it be fair to characterize what you've just 20 described as a decisionmaking process, although diffuse 21 because there are a number of players in it, there is some 22 D.C. connection? 23 MR. SWANSON: 24 THE COURT: 25 Yes. We've got at least two folks from the District of Columbia and at least one person who's actually Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 15 of 44 1 on the executive committee, it sounds like, ultimately 2 making a decision about the inclusion of this convention 3 center as part of the Phase III restoration. 4 at least two people in Silver Spring. 5 what extent those folks were involved in the executive 6 15 committee? 7 MR. SWANSON: Yes. And you've got And do we know to NOAA's principal 8 representative on the executive committee is Craig O'Connor, 9 who also signed the ROD, and he's based out of Seattle, 10 Washington. 11 who works in the commence building in D.C. 12 13 And the alternate is NOAA's general counsel, THE COURT: Is there a document that spells out who's on the executive committee and who the alternates are? 14 MR. SWANSON: There is not. I am aware of -- I've 15 seen at least two of the agencies, agencies themselves, at 16 least two of them I know of, documented, I believe, for the 17 benefit of the other trustees, who their principal 18 representative and who their alternate representative would 19 be. 20 or EPA have those same documents. 21 I've seen those documents. THE COURT: I don't know if Agriculture Is it possible for you to inquire and 22 make a submission to the court as to who the primary 23 representative is from each federal agency and who the 24 alternate is? 25 MR. SWANSON: Certainly. 16 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 16 of 44 1 THE COURT: I would like you to do that. Okay. 2 So, then unless you have more to say on the inclusion of the 3 project, I would like to turn to the environmental 4 assessment. 5 MR. SWANSON: 6 THE COURT: Yes, that's fine. Okay. So walk me through the actual 7 decisionmaking process of the environmental assessment from 8 the time the project is identified as a potential project. 9 At some point there are negotiations with BP, at some point 10 the project is approved by the trustees. 11 horizon does the environmental impact assessment occur? 12 MR. SWANSON: Where in that time I mentioned that May 2013 date, 13 which was when the trustees stated their intent to move 14 forward with planning for some Phase III projects, which 15 include Gulf State Park. 16 signed in October of 2014, that would be the period in which 17 the environmental review was being developed. 18 step in that under NEPA are the scoping meetings. 19 that -- the intent of scoping under NEPA is to identify 20 public and stakeholder issues of concern, to try to identify 21 issues where you'd want to focus and pay the most attention 22 to certain things. 23 From that point until the ROD was And the first There were six scoping meetings here. 24 our briefs. 25 other five were in the Gulf States. And This was in One of those scoping meetings was in D.C., the 17 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 17 of 44 1 THE COURT: 2 issue that I fully appreciate. 3 the public meetings that are referred in your papers, those 4 deal only with the environmental assessment? 5 also deal with the project selection process? 6 This is an important issue, or an MR. SWANSON: So the scoping meetings and It would be both. Or do they And by both, in 7 terms of project selection, I mean whether or not this 8 project is appropriate for a restoration project under the 9 Oil Pollution Act. 10 THE COURT: Okay. All right. So you had scoping 11 meetings, one of which took place in D.C., the remainder 12 took place in the Gulf and then there were public meetings 13 thereafter. 14 MR. SWANSON: Right. And the -- there's also 15 another couple other terms of art under NEPA which may be 16 important here. 17 Lead agency, under NEPA, is the agency that supervises and 18 oversees development of the EIS or EA, NEPA documentation. 19 Here that lead agency was an interior subcomponent, the U.S. 20 Fish and Wildlife Service, its Region 4 office in Atlanta. 21 And they contracted the day-to-day process of that to a 22 consulting firm in the Boston area. 23 That's lead agency and cooperating agency. There were 17 cooperating agencies on the EIS 24 here. Cooperating agencies, again, a term of art. Under 25 NEPA they provide staff support, funding in some cases, 18 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 18 of 44 1 expertise. 2 was one of those cooperating agencies. 3 agencies. 4 were the state agencies, the other four were federal 5 agencies. 6 Here, of course, the Gulf State project, Alabama Several Alabama Seventeen cooperating agencies; thirteen of them THE COURT: Okay. So when you say the lead 7 agency's interior and in its Region 4 Atlanta office, does 8 that mean that that is the federal subdivision or federal 9 sub-agency office that was the lead and primarily 10 responsible for assessing this convention project under 11 NEPA, NEPA compliance? 12 MR. SWANSON: That's correct. And here again, 13 given the Gulf scope of this and the multistate -- the EIS, 14 because the EIS consider many projects, the focus was pretty 15 wide in terms of where people actually came from. 16 requires a list of preparers to be appended to an EIS. 17 there were 189 individuals identified in that list of 18 preparers. 19 District of Columbia. 20 21 Here Only six of those individuals work in the THE COURT: Do we know which individuals worked on this project in particular? 22 NEPA MR. SWANSON: Were they were located? It's hard to say. Do know that 23 Alabama had 17 individuals; that includes staff and 24 contractors, 17 individuals that were on the list of 25 preparers. We know that -- the Department of Interior -- 19 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 19 of 44 1 well, I should say there are 113 state individuals and 2 contractors and 76 federal agency contractor -- federal 3 agency staff or contractors. 4 those. 5 were located in Alabama field offices. And there was a total of seven federal staff that 6 THE COURT: 7 MR. SWANSON: 8 9 10 11 Interior had the most of How many in D.C.? 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 12 the D.C. staffers was an attorney. 13 staff employee, so I don't know the direct role they would 14 have played in reviewing the Gulf State project. 15 THE COURT: The other, it was an EPA So if you were sitting where I am and 16 you have to answer the following question: Where does this 17 claim arise? 18 Because, at least as I view the cases, the cases look, 19 primarily, in terms of that element, there's a separate 20 question about whether there's a local interest. It ain't in the southern district of Alabama. 21 MR. SWANSON: 22 THE COURT: Right. The assessment of whether -- where a 23 claim arises seems to focus primarily on where the decision- 24 making occurs that is at issue. 25 separate -- I should say, two interrelated decisions; the Here we've got two 20 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 20 of 44 1 2 3 4 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 5 correct answer is that these claims arise in the Gulf of 6 Mexico, the Gulf States. 7 majority of people working on these projects were, the vast 8 majority of the environmental review occurred, vast majority 9 of the meetings of the executive committee; 14 of the 15 That's where the vast, vast 10 public meetings that occurred were in the Gulf. 11 were Gulf centric decisions, not D.C. decisions. 12 These were And then the issue becomes, well, where in the 13 Gulf should this go? 14 THE COURT: And the answer there is this project -It could be the other way, too. It's 15 not then once we've identified a region, we then find a 16 specific district in the region. 17 couple of cases in this jurisdiction that have actually 18 said, look -- the National Home Builders case, for example, 19 in which the courts said the fact that we have such a -- you 20 know, that the decisionmaking is actually much broader than 21 a particular locality actually suggests, that this is not 22 something that is a particular, localized controversy. 23 There are at least a And then most recently, Judge Contreras' decision 24 about the leases in the Gulf, in which he essentially sort 25 of goes in the opposite direction that you were going in, 21 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 21 of 44 1 which is, yes, this, arguably, primarily impacts the Gulf 2 States because those are the states that border the Gulf and 3 that's where the drilling leases are. 4 viewed that as a reason to not transfer the matter because 5 it wasn't specific to a particular district or state. 6 MR. SWANSON: Right. But he actually And the problem with all 7 these factors, of course, was that none of them are really 8 dispositive. 9 THE COURT: 10 Right. MR. SWANSON: That is the problem. So, in the situation like this where 11 you have decisionmaking that's certainly touched on D.C., 12 not necessarily D.C. centric, so both outside and inside, 13 courts then consider the other factors that come up, right? 14 I think there's six cases that we cite, that are cited in 15 the briefs here, that have the inside and outside D.C. 16 decisionmaking and that -- in which the motion to transfer 17 ended up being denied. 18 In four of those cases D.C. was the plaintiff's 19 home forum, which of course implicates the -- choice of 20 forum. 21 land in California, and the court said that's private land, 22 so that's not a local interest. 23 the second was Stand Up California, which was in the context 24 of an emergency injunction for transferring the case. 25 The other two were Otay Mesa, which involved private So that factors away. So there's other things coming into play. And And Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 22 of 44 22 1 Oceana, using that as an example, there there was no land in 2 Alabama. 3 continental shelf. 4 consideration that would have then tipped that balance back 5 to Alabama because you have the decisionmaking that was both 6 touched on D.C. and Gulf of Mexico. 7 The leases were on federal land in the outer So there was no local controversy, local THE COURT: Okay. Let me just ask you one last 8 question and then, of course, I'll give you the opportunity 9 to argue points that I may not have raised in my questions. 10 On the issue of the deference, our courts have worded that 11 inquiry in a variety of ways, whether there is no factual 12 nexus, you know, if the decisionmaking process centered, is 13 how Judge Leon phrased it in the case that he decided 14 involving one of the Indian tribes. 15 On the record that I have before me, it's, I 16 think, one thing you can agree to, is that there is a D.C. 17 nexus to these decisions, correct? 18 19 MR. SWANSON: Yes. There is some D.C. connection, yes. 20 THE COURT: And we can decide what the proper 21 verb -- or, the adjective is to put in front of the word 22 nexus. 23 District of Columbia. 24 25 But there is certainly no factual nexus to the MR. SWANSON: no no factual. Would you agree with that? There's no factual -- there's no -- 23 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 23 of 44 1 THE COURT: There's no no factual, right. So in 2 this case when there is some factual nexus--you can agree or 3 disagree whether it's substantial, significant, whatever the 4 word you may want to use--should I then defer to the 5 plaintiff's choice of forum because there is a factual nexus 6 in the District of Columbia? 7 MR. SWANSON: 8 THE COURT: 9 MR. SWANSON: Not in this case, no. Okay. Why not? You're correct that there is 10 significant connection to D.C. as one of the factors, but 11 there's also a significant connection to the plaintiff. 12 Does the District of Columbia have a connection to the 13 plaintiff? 14 forum; there's no headquarters, there's no office. 15 more than just about offices. 16 And here there is none. D.C. is not its own But it's There's also the fact that Gulf Restoration 17 Network is a regionally focused organization. Its purpose 18 is to protect and restore the Gulf region's natural 19 resources. 20 the case law, that is enough, by itself, to remove that 21 deference. 22 I think the Delush (ph.) opinion also says that, that when 23 the plaintiff has no connection, that alone, then you're 24 talking about, you know, you're thinking why are we here? 25 And that's what we have in this case. And when the plaintiff has no connection under Shawnee tribe, Judge Leon discussed that there. Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 24 of 44 1 24 I think the only other points I wanted to make on 2 the connection to D.C. and deference question, the fact that 3 the underlying resources here that are at issue are also in 4 Alabama, not the District of Columbia. 5 Gulf State Park Project is to compensate for the lost use of 6 federal and state natural resources in Alabama. The point of the 7 So no matter what happens in this case, whether 8 that project goes forward, whether the money goes to some 9 other project, whether it's just dropped all together, at 10 the end of the day, the citizens of the District of Columbia 11 are in no different position. 12 THE COURT: I don't think I asked you earlier, 13 does the administrative record in this case have a physical 14 location? 15 MR. SWANSON: You know, these days that factor -- 16 sometimes in field offices the records are kept in paper and 17 that's an issue, but here it's all digital, so it's not a 18 big factor. 19 THE COURT: Okay. 20 MR. SWANSON: The only point I wanted to make, and 21 the court also had a question about the MDL, and I can 22 answer that. 23 THE COURT: 24 MR. SWANSON: 25 Yes. But the point I wanted to make was this local controversy, you know, and you mentioned some of 25 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 25 of 44 1 the case law that references national type issues. So what 2 is it about this case that makes it local? 3 there's -- despite the EIS covering 44 projects when talking 4 about the Gulf in general, this case involves one project, 5 and that project is in Alabama. It's unlike Oceana, where 6 there is no project in Alabama. It's a state park, the 7 project is a state park. 8 constituency is local and state constituency. 9 that Otay Mesa case, that was private land. Well, again, By its very nature its It's unlike It is more like 10 Trout Unlimited and those other cases where there was some 11 local link to the federal project. 12 The implementing trustee here is the state of 13 Alabama, not the federal government, which also makes this 14 case different. 15 their briefs say, you know, that this is more than just 16 local because if this money is not spent on the Gulf State 17 Park Project, it could go somewhere else in the Gulf. 18 That's not entirely accurate because the trustees have an 19 allocation agreement for that framework agreement money with 20 BP. 21 go forward, the money that would have been spent is going to 22 remain in Alabama, just for some other project. 23 Another important point here, plaintiffs in Each state got $100 million, so if this project doesn't It's also worth pointing out here that the claims 24 in this case, three of them are EPA claims. The point of 25 NEPA is for agencies to consider the environmental effects Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 26 of 44 26 1 of their actions. 2 environmental effects would also be in Alabama. 3 Alabama citizens that are more directly impacted, and that's 4 what makes this case local. 5 6 Here the action is in Alabama, the So it is The court had asked about the MDL and whether it was appropriate to transfer the case to Judge Barbier. 7 THE COURT: The reason I ask is because I notice 8 the stipulation, I believe the document is called, the 9 stipulation with respect to the Alabama Convention Center 10 was actually filed with Judge Barbier in the MDL, and that's 11 why I raised the question. 12 on my past life, with that MDL and I know how busy he is. 13 So to the extent that one of the factors I need to consider 14 is the congestion -- the relative congestion of the dockets, 15 I know that he is far more congested than I am. 16 know that's a consideration, as well. 17 MR. SWANSON: I have some familiarity, based And so I And I don't think the court even 18 needs to get to those considerations, just because 19 circumstances here wouldn't be appropriate to transfer to 20 the MDL, and I'll get to that. 21 But to answer your point about the stipulations, 22 the stipulation is filed there just because the framework 23 agreement requires it. 24 only. 25 be appropriate here; one is substantive and the other is It says for informational purposes There's two reasons why transfer to the MDL would not Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 27 of 44 1 procedural. 2 Substantively, MDLs, of course, the whole point of 3 them is common questions of facts and to allow some 4 efficiencies in pretrial discovery, avoid inconsistent 5 pretrial orders. 6 panel and its order, it's actually at 731 F.Supp.2d 1352, 7 and it created the MDL because the cases have a common 8 question of fact related to the cause of the spill. 9 This is a very different case. And here the MDL was created by the MDL For one, it's an 10 APA case, which means that judicial review is going to be 11 based on the administrative record. 12 finding. 13 case in the MDL or any others. 14 nothing to do with the cause of the spill. 15 APA case, there is also going to be no discovery and no 16 pretrial proceedings. 17 gained. 18 There is no fact So there are no common questions of fact with the This case, of course, has Because it's an So there's no efficiencies to be The purpose of it isn't met. In fact, Judge Barbier, on the United State's 19 motion, early in that MDL, removed two APA cases. 20 argued the same reasons, that they're not appropriate, and 21 he ultimately dismissed them. 22 27 We had The procedural reason is because we're not in the 23 Eastern District of Louisiana. The order transferring the 24 case to the MDL would have to come from the multidistrict 25 litigation panel. Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 28 of 44 1 28 So with that, I didn't have anything else, unless 2 you have any further questions. 3 THE COURT: 4 No, I have nothing further. Thank you, Counsel. 5 It's Mr. Wiygul? 6 MR. WIYGUL: 7 THE COURT: 8 MR. WIYGUL: 9 Thank you, Judge. Wiygul, Judge. W-I -W-I-Y-G-U-L. 10 be here today. 11 I appreciate the opportunity to I don't know if you have specific questions for me to start with, but -- 12 THE COURT: 13 MR. WIYGUL: A few. If I may, could a respond to a couple 14 points that were made here that I think are particularly 15 important? 16 THE COURT: 17 MR. WIYGUL: Sure. The federal defendants are really 18 asking the court here to break some new ground in terms of 19 transfer of cases under 1404(a) in this district. 20 asking you to take a case, which everyone can see it's 21 properly before this court and that has a connection to this 22 district -- and I'll tell you why it's substantial in just a 23 minute. 24 decision-makers here. 25 they're asking you to move it to a forum where there were They're And everybody can see it's your decisions and The documentation was signed here and Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 29 of 44 29 1 not federal decision-makers or, as you said, the claim did 2 not arise. 3 Southern District of Alabama and there aren't any state law 4 questions, and there's not even state law decision-makers in 5 the Southern District of Alabama. 6 complaint and in this matter are federal. 7 Environmental Policy Act and the Oil Pollution Act. 8 9 There wasn't a decisionmaking process in the All issues in this National There are no state issues that are at play here. And that is a contrast, a very stark contrast to cases like 10 the Trout Unlimited case that's been cited in Colorado where 11 you're going to have state law issues that would come into 12 play. 13 Federation case. 14 It's a very stark contract to the National Wildlife In Florida, for example, where you had a whole 15 panoply of impact of that decision which was made in 16 Florida, with Florida decision-makers, that's going to 17 have -- gosh, they had a huge list of them; navigation, 18 tourism, waterfront, and everglades. 19 THE COURT: Let me press you on that a little bit, 20 because what struck me as unique about this case, and unlike 21 the others that we had seen in this jurisdiction, is that 22 there truly are state actors involved in the decisionmaking 23 here. 24 happy to be told otherwise--in which there are actually 25 state actors. I'm not aware of any case in this jurisdiction--I'm Both -- in this case you had Alabama state Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 30 of 44 1 legislature actually passing legislation of some kind 2 authorizing the convention center or the use of the funds 3 for the building of a convention center. 4 Alabama trustee that vetted projects, potential projects, 5 30 and made a recommendation to the other trustees. 6 You have an Why does that make this case different than a lot 7 of the other cases in which the court has said, you know, 8 we'll keep it here, even though there is a local impact? 9 MR. WIYGUL: I'll you why, Judge. Because this is 10 a situation where we're talking about what the federal 11 trustees did and the decision that they made. 12 federal trustees--implying that there are obligations under 13 federal law which were not shared by any of those state 14 actors--this project would not have gone forward. 15 framework agreement and -- I want to go a little bit further 16 back in the process because I think it's very important in 17 this case. 18 structured this whole process and really drives this whole 19 process, without the federal trustees agreeing to that 20 framework agreement, this case wouldn't even be here today. 21 They have a veto over this project. 22 23 That Without that framework agreement which THE COURT: Is that accurate, that they have a veto over this project? 24 25 Without the MR. WIYGUL: corrected. If they do not, I'm subject to being But if all of the trustees do not agree to a Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 31 of 44 1 project, that project is not going to be part of the 2 process. 3 31 about that, but that's my understanding. 4 5 6 I would be happy to be corrected if I'm wrong THE COURT: Okay. I'll ask counsel for the government to address that. MR. WIYGUL: Sure. So what we're talking about 7 here are federal obligations, not the state trustees' 8 obligations. 9 federal law and process and whether bad process leads to a 10 bad outcome, which is something that we, as attorneys, are 11 all very familiar with. 12 This is a federal matter that deals with THE COURT: Now, of course, most of the cases are 13 of that nature, correct? 14 this transfer issue arises involve challenges to federal 15 decisionmaking and whether they comply with federal law. 16 MR. WIYGUL: 17 THE COURT: I mean, most of the cases in which Absolutely true. That issue, by itself, really doesn't 18 move the dial, or shouldn't move the dial. 19 question, in my mind, is does the substantive decisionmaking 20 happen in this district? 21 the key factors. 22 happening elsewhere, that seems to be a pretty significant 23 issue that the courts in this jurisdiction have looked to to 24 determine whether to transfer or not. 25 The real At least that seems to be one of And if it doesn't happen here, if it's MR. WIYGUL: Can I put that in a little context? 32 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 32 of 44 1 Because I think that's a very important part. 2 multiple cases from this district in which you have -- and 3 this is certainly to be expected in this day and age, 4 there's going to be decision-makers or processes in 5 different places. 6 Spring -- Silver Spring is one Metro stop from D.C. 7 think any of us would say that that office is not in the 8 D.C. orbit here, certainly. 9 Absolutely true. You do have I mean, D.C., Silver I don't But you have diffused decisionmaking processes. 10 And what some of the cases have said, again, as you've 11 noted, that's what really shows that there's a national 12 interest and this is not a localized controversy. 13 also means that the Southern District of Alabama doesn't 14 have any more claim to this than any other venue does. 15 And it Now, this is interesting to me, when you read 16 these cases, and I may be getting a little into leads here, 17 section 1404(a), you know, that started out as a statutory 18 articulation of forum non conveniens, right? 19 convenience of the witnesses and the parties. 20 Supreme Court has said about it, it's to afford defendants 21 protection where the maintenance of the action in the 22 plaintiff's choice of forum will make litigation 23 oppressively expensive, inconvenient, difficult or harassing 24 to defend. 25 here is they don't say it's inconvenient for them to be here For the And what the And what, you know, we are really getting to Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 33 of 44 1 at all. 2 inconvenient to be here. 3 33 They're saying that my client ought to find it But we do not. We chose this forum because these decisions 4 started at the top here in D.C. and this framework agreement 5 that we talked about, the structure of this, this was signed 6 by Ken Salazar when he was secretary of the Interior, Jane 7 Lubchenco when she was running NOAA, signed by Mr. Verrilli 8 over at the Justice Department here in D.C., and these 9 results flowed from that. 10 THE COURT: One of the questions I had for you is 11 how do I deal with the issue of -- for presumption of the 12 plaintiff's selection of forum? We've got -- I think those 13 are two competing strains here. There's a line of cases and 14 authorities that say if there is some nexus or a factual 15 nexus to the District of Columbia, then the presumption is 16 to be respected. 17 cases, with the Piper Aircraft decision in the Supreme 18 Court, that says if the plaintiff is not -- is foreign, as 19 your client is, doesn't actually reside in the District of 20 Columbia, then that difference is diminished. 21 On the other hand, there's a line of So I've got two competing strains here and 22 ultimately where do I come out? 23 MR. WIYGUL: The way that the cases and the way 24 that the courts -- and I'm talking about Gulf Oil 25 Corporation v. Gilbert here and, for example, the Akiachak 34 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 34 of 44 1 case here in this forum. 2 typically conjunctive, Judge. 3 Plaintiff's choice of forum is usually accorded great 4 deference, unless the plaintiff chooses a forum that is not 5 his home and that has no substantial connection to the 6 subject matter of the action. 7 THE COURT: The way that is articulated is It is -- I'm quoting here: I know those two cases do that. But 8 the Supreme Court is also telling me, in Piper Aircraft, 9 which is a forum non conveniens case, to afford less 10 deference when the chosen forum is not that of the 11 plaintiff, when the plaintiff is actually foreign to that 12 forum. 13 MR. WIYGUL: In some ways -- have you ever run 14 into one of those cases where you have an evidentiary 15 standard, something like clear and convincing evidence, 16 right, which none of us know how that differs from a 17 preponderance of the evidence, really. 18 important point here is we still get deference, it's just a 19 somewhat lesser deference. 20 how much that deference is supposed to be lessened. 21 I'll tell you, on a case like this, it shouldn't be. 22 I think the And they don't tell the court And Again, this was and is an issue of national 23 importance. It's an issue that had key decisions being made 24 here in the District of Columbia. 25 the people signing these documents -- and while I understand In fact, the weight of Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 35 of 44 1 decisionmaking processes may be different from the signer, 2 one certainly hopes a signer is reading a document and 3 35 making a decision for that agency. 4 Now, again, these days the idea that an entity 5 that is based in New Orleans, Louisiana is somehow 6 handicapped or has less deference, we all work all over the 7 country. 8 work all over the country. 9 is where decisions were being made and because, frankly, the 10 11 Organizations like that may be based anywhere and This case came here because this D.C. Circuit is less congested than the Eleventh Circuit. THE COURT: Let me ask you the following, whether 12 you would agree to the following: 13 Alabama Convention Center Project, the economic, 14 environmental impacts of that project are primarily going to 15 be felt in Alabama? 16 MR. WIYGUL: Would you agree that the Judge, let me -- I would not 17 necessarily agree with that as articulated. 18 this is funding that came about as a result of a settlement. 19 There was an allocation formula that was put in place, 20 that's certainly true. 21 in Alabama, right? it may go to curing problems with federal 22 resources if damaged by the oil spill, as well. 23 are things that affect all people of the United States. 24 25 Yes. Because, again, Even if this goes to other resources And these I will tell you this, and it would be disingenuous to say otherwise, yes, the place where this Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 36 of 44 36 1 would be built will be in Alabama and there is a local 2 interest. 3 years. 4 is this is going to bring a bunch more people to the beach, 5 right? 6 center and hotel. 7 Southern District of Alabama, they're going to be folks from 8 all over the place. They've been trying to get this funded for 15 But, among the things that they say is that the idea So people can enjoy the beach at this convention 9 Those are not going to be folks from the THE COURT: Yeah, maybe. But, look, I have a hard 10 time -- and I appreciate your trying to -- your answer, but, 11 this does strike me as a -- unlike some of the other 12 decisions in this jurisdiction in which, for example, that 13 may have involved an easement or some kind of property 14 dispute in a remote region in the state, this is a fairly 15 localized project, that the impacts will be felt locally, in 16 terms of employment, environmental impacts. 17 the economy is all going to be felt in Alabama. 18 that's the case, and I know you can -- you disagree with me 19 on that, but if that's the case, are there cases that you're 20 aware of in which that kind of impact, in which you have 21 that kind of local impact, in which there hasn't been a 22 transfer? 23 24 25 MR. WIYGUL: Any impact on So if Judge, I would look at the Otay Mesa Property Owners Association case. THE COURT: But, of course, that's a private land Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 37 of 44 1 case out in San Diego, it's private landowners. 2 is different. 3 are going to be much broader than a couple of private 4 37 landowners. 5 That case You've got a state park here and the impacts MR. WIYGUL: Let me disagree with you to some 6 extent there. I'm not sure this is different, and I'll tell 7 you why; because this hotel and convention center, I don't 8 believe the state of Alabama is going to be running it. 9 It's going to be a hotel corporation. I mean, this is 10 fundamentally -- it's no different than if it was a private 11 enterprise that was running the hotel. 12 I think it's quite similar. 13 THE COURT: And that's, to me -- We don't have private parties involved 14 right now and the decisionmaking that you're challenging 15 doesn't involve a private party, unlike the Otay Mesa case. 16 So, other than Otay, are you aware of any other case in 17 which the, kind of, localized economic, environmental 18 interests exists in which it was not transferred because the 19 decisionmaking was done in the District? 20 MR. WIYGUL: I'll look at this again, but, the 21 Greater Yellowstone Coalition case, which involved a federal 22 grazing lease out there and, of course, having practiced out 23 west, I know that federal grazing leases occupy an exalted 24 position, both in our mythology and in the economy out 25 there. And so I think that's another situation where you're Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 38 of 44 1 really looking at something that's quite similar. 2 was, of course, federal grazing leases are public property. 3 That was another -- that was a situation where there were 4 actually decision-makers in the forum for the federal 5 38 defendants. 6 And that You know, Judge, leaping back, I think Gulf 7 Restoration Network is still entitled to deference for its 8 choice of forum here. 9 connections than the Southern District of Alabama does in 10 And this forum has more substantial terms of decisionmaking process. 11 Now, I do want to say this: The executive 12 committee and some of the things that were brought in here 13 today were not in the briefings. 14 to respond to those. 15 deference to my colleagues here, quite modest, in terms of 16 its description of the decisionmaking process. 17 18 THE COURT: We have not had a chance What was in the briefing was, with Which is why I called the hearing, because I wanted more facts about it. 19 MR. WIYGUL: Right. And, Judge, if we're going to 20 be really looking at having additional information submitted 21 to the court, I feel like I need to say for my client, we 22 need the administrative record because that's going to tell 23 us what decisionmaking process actually took place here in 24 D.C. 25 We don't get to do discovery in these cases. THE COURT: No, I understand. My understanding is 39 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 39 of 44 1 the administrative record is public, it's online. 2 MR. SWANSON: Sort of the documents may be online, 3 but the actual whole record as certified is not yet. 4 don't think that certification is completed. 5 THE COURT: Okay. Okay. I Your point is a good one 6 and it's one I want to ponder a little bit. 7 further argument, I'm happy to hear it. 8 9 MR. WIYGUL: But if you have I do just have a couple of points. Judge, as you noted, the -- many of the factors that 10 traditionally have been looked at don't come into play here. 11 And frankly, I think at some point that needs to be 12 overhauled to recognize that we have these electronic 13 administrative records and all that and there's no longer a 14 physical nexus in these kind of cases to any particular 15 place. 16 But, there is some case law here which addresses 17 whether a controversy is local in nature and sets out a 18 number of factors, including where the challenged decision 19 was made, which was not in the Southern District of Alabama. 20 Whether the decision directly affected the citizens of the 21 transferee state. 22 yes, they've wanted to be build this and it will be built 23 there. 24 Whether the issue involves federal constitutional issues 25 rather than local property laws or statutes, which is -- Which I think we've acknowledged that, Location of the controversy, which is really here. Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 40 of 44 40 1 this is all about federal laws. Whether there are issues of 2 state law, which there are not. Whether the controversy has 3 national significance, which clearly it does. 4 does. 5 this is a local controversy. 6 involvement by a District of Columbia official, which there 7 was. 8 F.Supp.2d 42. 9 Absolutely And I would disagree strenuously with any claim that And whether there was personal And it's National Wildlife Federation v. Harvey, 437 All of those really point to this is not a 10 localized controversy. 11 the deference level down and this forum still has more 12 connection than the Southern District of Alabama does 13 because that's just not localized controversy. 14 And even -- you know, you can push Now, Judge, if you have any other questions, I 15 would be happy to answer them. 16 THE COURT: 17 18 19 I don't at this time. Thank you very much. MR. SWANSON: Your Honor, a couple of questions you had asked me during -- 20 THE COURT: Yes. 21 MR. SWANSON: You asked about consensus decision- 22 making on the part of the trustees. The framework agreement 23 with BP, BP does ask that all the trustees have consensus on 24 projects for early restoration. 25 agreement between the trustees, where they're allocated However, the allocation Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 41 of 44 41 1 certain amounts of money, says that if a trustee is making 2 use of that money and proposes a project for its money, that 3 that's majority decisionmaking. 4 the planning process. 5 THE COURT: I'm sorry. 6 MR. SWANSON: And that is just a move for I didn't understand that. So the allocation agreement, which 7 dedicated or identified $100 million for each of the states, 8 says that if that trustees want to move forward with a 9 project, presents it to the council, that it's a majority 10 vote to begin the planning process to include that project. 11 But at the end of the day, the framework agreement with BP, 12 what would be at the ROD stage, still requires consensus 13 decisionmaking. 14 THE COURT: Okay. So, Gulf Restoration's counsel 15 used the word veto. So let me ask the question this way: 16 If one of the federal trustees had said no, this project is 17 not consistent with the restoration purposes of the 18 framework agreement, is it accurate to say that the project 19 would not have gone forward? 20 MR. SWANSON: 21 THE COURT: 22 MR. SWANSON: 23 The early stage of -- At whatever stage. I think -- and this has not happened, so I don't know how it would play out. 24 THE COURT: I understand. 25 MR. SWANSON: And I think the politics of the Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 42 of 44 42 1 group probably would prevent this from happening, but if you 2 do the math on the allocation agreement, there's nine 3 trustees, if you count the states and the four federal 4 agencies. 5 you would still have a majority for moving forward with the 6 planning. 7 all trustees to say yes for a project. 8 So if all four said no and all states said yes, But at the end of the day, I think you would need THE COURT: Bottom line is if the federal 9 government -- if the federal government had said -- had 10 concluded that this project was not consistent with the 11 framework agreement and its purposes and the Oil Pollution 12 Act purposes, etcetera, fair to say the project would not 13 have gone forward? 14 15 MR. SWANSON: conclusion, yeah. 16 I think that's probably a fair Yeah. I'm trying to read my notes here. In your 17 conversation with Mr. Wiygul you were talking about the 18 connection to D.C. 19 keeps making the point that there's no decision-maker in 20 Alabama. 21 the Alabama trustee played here and also federal staff in 22 Alabama that was involved in all this. 23 for connection to D.C. is D.C., not the transferee forum. 24 The transferee forum comes into play in the local 25 controversy. And I think there's important -- he I don't think that's accurate because of the role But, the question But if you're trying to address that 43 Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 43 of 44 1 connection to D.C., where those other decision-makers may be 2 outside of D.C. is not relevant. 3 There's also the issue of the administrative 4 record. 5 is not complete. 6 it is not ready and because different courts across the 7 country have different procedures and rules for 8 administrative records. 9 Alabama, it would just slow the case. 10 The administrative record is being developed. It It would be premature to file it now, as THE COURT: So if we file now and end up in All right, folks. This has been 11 extremely helpful, informative, and very grateful for the 12 presentation of both counsel. 13 consideration. 14 you. 15 16 17 18 19 20 21 22 23 24 25 And we'll take it all under We'll have a decision for you soon. * * * Thank Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 44 of 44 1 44 CERTIFICATE OF OFFICIAL COURT REPORTER 2 3 4 I, JANICE DICKMAN, do hereby certify that the above 5 and foregoing constitutes a true and accurate transcript of 6 my stenograph notes and is a full, true and complete 7 transcript of the proceedings to the best of my ability. 8 Dated this 26th day of March, 2015. 9 10 11 /s/________________________ 12 Janice E. Dickman, CRR, RMR Official Court Reporter Room 6523 333 Constitution Avenue NW Washington, D.C. 20001 13 14 15 16 17 18 19 20 21 22 23 24 25

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