GULF RESTORATION NETWORK v. JEWELL et al

Filing 21

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

Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 1 of 44
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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Gulf Restoration Network,

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Plaintiff,

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v.
Sally Jewell, et al.,

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Defendants.

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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

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March 3, 2015
10:00 a.m.

________________________________________________________

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Date:
Time:

TRANSCRIPT OF ORAL ARGUMENT
HELD BEFORE
THE HONORABLE AMIT P. MEHTA
UNITED STATES JUDGE

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File No. CA 14-1773

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Court Reporter:

Janice E. Dickman, RMR, CRR
Official Court Reporter
U.S. Courthouse, Room 6523
333 Constitution Avenue, N.W.
Washington, DC 20001
[phone]
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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 2 of 44
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THE COURT:

Bear with me for one moment.

We're

2

still trying to work the kinks out here.

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for being here this morning and working with Miss White to

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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.

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at the cases, read all of your papers, which have been very

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helpful.

I have looked

And the -- you know, the courts in this

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jurisdiction have looked at a number of factors, all of

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which you have pointed out, both public and private, in

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determining whether to transfer a case outside the District

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of Columbia.

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The courts have looked at -- I believe it's nine

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factors.

But really, when you look at those factors, there

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are really only three that, certainly in this case and in

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most cases, that come into play.

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plaintiff's choice of forum and the amount of deference

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that's to be afforded to the plaintiff's choice of forum.

And that is the

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Two, where the claim itself actually arises.

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three, whether the controversy at issue is one that is

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properly characterized as one of more national scope or more

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local interest.

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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

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this case, I think, is fairly unique in that while it

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involves what it arguably a local -- or, what is a local

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project; a local project, the Alabama Convention Center

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arises out of an event, certainly of national importance and

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national scope, the Deepwater Horizon oil spill.

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arises out of, from what I can tell, a sort of unique

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federal-state process by which this was one of, I think, 44

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projects selected for early restoration work.

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And it

And so, I'm still undecided about what to do, I

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will be perfectly honest with you.

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this is to get some help from counsel in answering some

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questions that I have, that I don't fully appreciate the

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answers to, that really have to do with the three areas, the

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three factors I just identified.

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called this hearing and would appreciate counsel's efforts

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in helping me answer some of those questions.

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And the reason I called

And so, that's why I've

So, let me, actually, ask government counsel to

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begin.

And I'm sure you have prepared remarks and have

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things you would like to present to the court, but I have a

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number of questions that I'd just like to jump into, if

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that's okay with you.

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MR. SWANSON:

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THE COURT:

Absolutely.

Whatever you prefer.

The first is a fairly routine question

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and that is I am not quite sure I understand the difference

25

between what is Defendant's Exhibit 3, which is styled

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 4 of 44
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Programmatic and Phase III Early Restoration Plan, and Early

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Restoration Programmatic Environmental Impact Statement,

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which is dated June of 2014 and what is your Exhibit 1,

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which is the record of decision that effectively has the

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same title but is dated several months later and signed

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October 2nd, 2014.

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8

Could you just tell me what -- and you're Mr.
Swanson?

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MR. SWANSON:

Kristofor Swanson, yes, representing

Federal Defense.

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THE COURT:

What's the difference between those two?

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MR. SWANSON:

Exhibit 4 is the restoration plan

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and environmental impact statement, and that is a

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requirement of the Oil Pollution Act and the National

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Environmental Policy act in this case.

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THE COURT:

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MR. SWANSON:

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THE COURT:

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Exhibit 4 is the stipulation.
I'm sorry.

Right.

Exhibit 3.

The one with the nice

photograph of the beach.

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MR. SWANSON:

I'm sorry.

Exhibit 3 is the

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Restoration Plan and Environmental Impact Statement.

And

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those are planning documents required by law under the Oil

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Pollution Act, OPA, and the National Environmental Policy

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Act, NEPA.

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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
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and comments on this projects.

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federal agencies to consider the environmental effects of

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their actions before they act.

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either an environmental assessment or environmental impact

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statement.

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statement.

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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

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the actual decision, which is the record of decision in this

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case, which is Exhibit 1.

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THE COURT:

So Exhibit 3 is both -- is really the

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environmental impact statement?

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MR. SWANSON:

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THE COURT:

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Extracts of it, yes.

Extracts, okay.

Okay.

And then the

record of decision is the final document?

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MR. SWANSON:

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THE COURT:

That's right.

That incorporates both the selection

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of the various projects -- or, identifies the projects and

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then also incorporates the impact statement that is dated

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June 14th?

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MR. SWANSON:

That's right.

Relies on the impact

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statement for both other purposes and NEPA purposes.

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Documents the information that the agencies are relying upon

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to reach their decision, what they considered in reaching

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the decision.

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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
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percent clear on the difference between the two exhibits.

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So let me ask you, and one of the reasons -- one

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of the questions that I posed in the order convening this

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hearing, was I'm still unclear on precisely what -- how this

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process worked.

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process here, because we really have two separate but

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related processes here.

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Alabama Convention Center and then we have the environmental

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review.

Specifically, when they talk about which

We have the selection of the

I understand the two of them are related, but I

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would like to think of them separately just for these

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purposes.

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Can you explain to me how the selection actually

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came about?

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of the Alabama trustees and the other state trustees, to the

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extent they had a role, and the federal trustees.

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And in addressing that, address both the role

MR. SWANSON:

Sure.

You know, you said something,

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Your Honor, at the very beginning here which I think is very

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at the point, and that is a very unique process that state

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involvement -- unlike a lot of the case law that the parties

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relied upon, this was not a federal agency acting

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unilaterally.

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multistate and federal trustee council aimed at restoring

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some of the resources that were damaged.

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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

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 7 of 44
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trustee -- through the trustee council, which includes state

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and federal representatives.

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that council is really done through what's called an

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executive committee.

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a principal representative and an alternative representative

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from each of the five states and the four federal trustee

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agencies.

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THE COURT:

And the day-to-day work on

On that committee there are -- it was

Does that committee have a physical

location?

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MR. SWANSON:

It does not.

They, as you would

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expect, being gulf centric here, a lot of their

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correspondence is done through e-mail and telephone.

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THE COURT:

Okay.

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MR. SWANSON:

So they act virtually.

Right.

But the relevant period

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here, I think, is March 2012 through May 2013, in terms of

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including Gulf State Park in the Phase III planning.

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2012 is what we identified when that trustee council started

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to consider this project as part of the Phase III project.

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And May 2013 was the date when the trustees publicly

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announced their intent to move forward with that Phase III

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planning.

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THE COURT:

Let me interrupt.

March

So am I

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understanding correctly that the trustee council, and that's

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composed of both the federal and state trustees, began

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considering this project in March of 2012, is that right?

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 8 of 44
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MR. SWANSON:

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THE COURT:

That's right.

So who proposed the convention center

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as a project for the trustees considering?

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specifically -- if you look at Exhibit 3, page 57, what's on

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page 57.

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trustees consider a range of project types to determine how

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best to proceed with early restoration projects aimed at

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restoring lost recreational use."

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I'm

First full paragraphs starts, "The Alabama

A couple pages earlier, on what is page 1, it's a

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couple pages earlier in the exhibit:

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proposed to be implemented in Alabama are being put forth by

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the trustees, the specifics of each project in this region

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were developed and brought to the trustees for approval by

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the, quote, implementing trustees.

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would be the Alabama trustee.

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trustee conducted an initial screening process to decide

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which projects to move forward to the trustee council for

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consideration as an early restoration project proposal.

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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

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other states do, has a public projects solicitation process.

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They have a website where the public can submit projects for

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consideration, both in early restoration and on the longer-

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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

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those submitted.

Alabama had its own internal screening

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process to select projects for early restoration and Alabama

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proposed the Gulf State Park project to the trustee council

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for inclusion in Phase III.

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THE COURT:

Okay.

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MR. SWANSON:

And then from there the trustee

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council again acts through those principal representatives

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and the alternates.

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and some negotiation with BP because this is their latest

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restoration that BP will fund, and then at the end of the

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day decide to include projects in Phase III.

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They do a -- some technical screening

You had asked if there is a location of that

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executive committee.

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did meet 12 times.

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District of Columbia.

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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

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meetings, which were part of the environmental review

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process, EIS.

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THE COURT:

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meetings are you talking about?

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So what are you talking?

MR. SWANSON:

What

This is the executive committee of

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the trustee council, meeting to discuss negotiations with

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BP, discuss projects, move forward with various things for

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 10 of 44
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restoration.

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THE COURT:

Are these open meetings, closed

meetings?

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MR. SWANSON:

I believe they're closed meetings,

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but there are some publicly available documents that are

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posted on websites.

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THE COURT:
at those meetings?

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Would this project have been discussed

MR. SWANSON:

Yes, potentially, during that time

period.

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THE COURT:

Is there a record of that discussion?

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MR. SWANSON:

The meeting minutes, I think,

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reflect discussion at three or four of those meetings.

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not recalling the specific dates.

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THE COURT:

Okay.

I'm

I would like you to submit

those to the court.

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MR. SWANSON:

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THE COURT:

The meeting minutes?

The meeting minutes.

And

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particularly, if any of the meeting minutes reflect

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discussion about this project.

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MR. SWANSON:

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THE COURT:

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24
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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

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 11 of 44
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those occurred in D.C.

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a park service facility in West Virginia, and the remainder

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were in the other four Gulf States.

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THE COURT:

One was in Alabama, one was in -- at

Okay.

So, once the project itself,

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the Alabama Convention Center project is proposed to the

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executive committee, can you tell me what the individual

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federal trustees did in terms of assessing the project?

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specifically, who's doing the assessing and where is the

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assessing taking place?

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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

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actual selection of the convention center.

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you've told me, as I understand it, is that the Alabama

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trustee makes a proposal to the council, the council

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consists of both the federal and state trustees.

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ultimately, seems like everybody needs to sign off, all of

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the trustees, both federal and state, must sign off before a

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project is approved, is that correct?

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MR. SWANSON:

Because what

So -- and

The framework agreement with BP

requires that, yes.
THE COURT:

Okay.

So, I take it that the federal

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trustees must have done some evaluation of the -- whether

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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
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MR. SWANSON:

Right.

Yes.

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There is some initial

2

screening that is done to consider presenting projects to BP

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for negotiation purposes.

4

the projects are consistent with OPA and the review required

5

by NEPA, that is done through the EIS process.

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But the final review of whether

So the way the process worked is projects are

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bought forth by the trustees, the council determines

8

collectively whether or not to negotiate with BP regarding

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those projects for inclusion in the restoration.

If an

10

agreement with BP is reached, yes, we think we can use early

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restoration funding on these projects, then the trustees

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collectively move to that public review process under OPA

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and NEPA using EIS as that document, develop the public

14

comment that is considered in their review and then

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ultimately get to the record of decision point, which is the

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final decision to move forward with those projects.

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THE COURT:

Okay.

And so what then -- I've got a

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Phase III document and it's important to know who signed it.

19

But -- and in particular, just -- it's you've got three --

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you've got four federal trustee signatories.

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Agriculture, EPA, Interior, and NOAA, those are the four.

22

Two of those four signatories, the individuals, Miss

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Kopics--probably pronouncing her name incorrectly, I

24

apologize to her--Miss Mills are both clearly D.C. based.

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The NOAA signatory is based in Silver Spring.

You've got

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MR. SWANSON:

2

THE COURT:

And one is in Seattle, Washington.

I have Cynthia Dohner, the signatory

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in Atlanta, and then one of the NOAA signatories is in

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Seattle.

5

Kopics and Miss Mills did, or whether others who reported to

6

them did, in evaluating this project.

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So tell me what, to the extent that you know, Mr.

MR. SWANSON:

I don't know the details of their

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deliberations.

I do know that the individuals that signed

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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.

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For agriculture, however, the principal

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representative is the director of their restoration team and

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he is based in Madison, Mississippi.

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folks who were -- the first instance, the principal

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representatives on the executive committee.

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alternates also.

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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

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THE COURT:

Out of D.C.?

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MR. SWANSON:

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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

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can see various possibilities, one of which is, for example,

2

one of the federal trustees took a lead and the others

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essentially followed.

4

an independent obligation to make their own assessments and

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they did that.

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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

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certainly lead agencies there.

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THE COURT:

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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

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D.C. connection?

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MR. SWANSON:

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THE COURT:

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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
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on the executive committee, it sounds like, ultimately

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making a decision about the inclusion of this convention

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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

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committee?

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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.

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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

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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
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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 --

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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

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landowners.

5

That case

You've got a state park here and the impacts

MR. WIYGUL:

Let me disagree with you to some

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extent there.

I'm not sure this is different, and I'll tell

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you why; because this hotel and convention center, I don't

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believe the state of Alabama is going to be running it.

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It's going to be a hotel corporation.

I mean, this is

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fundamentally -- it's no different than if it was a private

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enterprise that was running the hotel.

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I think it's quite similar.

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THE COURT:

And that's, to me --

We don't have private parties involved

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right now and the decisionmaking that you're challenging

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doesn't involve a private party, unlike the Otay Mesa case.

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So, other than Otay, are you aware of any other case in

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which the, kind of, localized economic, environmental

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interests exists in which it was not transferred because the

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decisionmaking was done in the District?

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MR. WIYGUL:

I'll look at this again, but, the

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Greater Yellowstone Coalition case, which involved a federal

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grazing lease out there and, of course, having practiced out

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west, I know that federal grazing leases occupy an exalted

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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
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really looking at something that's quite similar.

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was, of course, federal grazing leases are public property.

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That was another -- that was a situation where there were

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actually decision-makers in the forum for the federal

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defendants.

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And that

You know, Judge, leaping back, I think Gulf

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Restoration Network is still entitled to deference for its

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choice of forum here.

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connections than the Southern District of Alabama does in

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And this forum has more substantial

terms of decisionmaking process.

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Now, I do want to say this:

The executive

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committee and some of the things that were brought in here

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today were not in the briefings.

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to respond to those.

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deference to my colleagues here, quite modest, in terms of

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its description of the decisionmaking process.

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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.

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MR. WIYGUL:

Right.

And, Judge, if we're going to

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be really looking at having additional information submitted

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to the court, I feel like I need to say for my client, we

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need the administrative record because that's going to tell

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us what decisionmaking process actually took place here in

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D.C.

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We don't get to do discovery in these cases.
THE COURT:

No, I understand.

My understanding is

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Case 1:14-cv-01773-APM Document 19 Filed 04/09/15 Page 39 of 44
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the administrative record is public, it's online.

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MR. SWANSON:

Sort of the documents may be online,

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but the actual whole record as certified is not yet.

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don't think that certification is completed.

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THE COURT:

Okay.

Okay.

I

Your point is a good one

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and it's one I want to ponder a little bit.

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further argument, I'm happy to hear it.

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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

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traditionally have been looked at don't come into play here.

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And frankly, I think at some point that needs to be

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overhauled to recognize that we have these electronic

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administrative records and all that and there's no longer a

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physical nexus in these kind of cases to any particular

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place.

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But, there is some case law here which addresses

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whether a controversy is local in nature and sets out a

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number of factors, including where the challenged decision

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was made, which was not in the Southern District of Alabama.

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Whether the decision directly affected the citizens of the

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transferee state.

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yes, they've wanted to be build this and it will be built

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there.

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Whether the issue involves federal constitutional issues

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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

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this is all about federal laws.

Whether there are issues of

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state law, which there are not.

Whether the controversy has

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national significance, which clearly it does.

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does.

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this is a local controversy.

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involvement by a District of Columbia official, which there

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was.

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F.Supp.2d 42.

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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

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localized controversy.

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the deference level down and this forum still has more

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connection than the Southern District of Alabama does

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because that's just not localized controversy.

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And even -- you know, you can push

Now, Judge, if you have any other questions, I

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would be happy to answer them.

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THE COURT:

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19

I don't at this time.

Thank you very

much.
MR. SWANSON:

Your Honor, a couple of questions

you had asked me during --

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THE COURT:

Yes.

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MR. SWANSON:

You asked about consensus decision-

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making on the part of the trustees.

The framework agreement

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with BP, BP does ask that all the trustees have consensus on

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projects for early restoration.

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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

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certain amounts of money, says that if a trustee is making

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use of that money and proposes a project for its money, that

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that's majority decisionmaking.

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the planning process.

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THE COURT:

I'm sorry.

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MR. SWANSON:

And that is just a move for

I didn't understand that.

So the allocation agreement, which

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dedicated or identified $100 million for each of the states,

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says that if that trustees want to move forward with a

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project, presents it to the council, that it's a majority

10

vote to begin the planning process to include that project.

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But at the end of the day, the framework agreement with BP,

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what would be at the ROD stage, still requires consensus

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decisionmaking.

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THE COURT:

Okay.

So, Gulf Restoration's counsel

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used the word veto.

So let me ask the question this way:

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If one of the federal trustees had said no, this project is

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not consistent with the restoration purposes of the

18

framework agreement, is it accurate to say that the project

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would not have gone forward?

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MR. SWANSON:

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THE COURT:

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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.

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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

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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.

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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
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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

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extremely helpful, informative, and very grateful for the

12

presentation of both counsel.

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consideration.

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you.

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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
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CERTIFICATE OF OFFICIAL COURT REPORTER

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I, JANICE DICKMAN, do hereby certify that the above

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and foregoing constitutes a true and accurate transcript of

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my stenograph notes and is a full, true and complete

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transcript of the proceedings to the best of my ability.

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Dated this 26th day of March, 2015.

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/s/________________________

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Janice E. Dickman, CRR, RMR
Official Court Reporter
Room 6523
333 Constitution Avenue NW
Washington, D.C. 20001

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