Georgia River Network et al v. U.S. Army Corps of Engineers et al

Filing 36

ORDER directing the Plaintiffs to file an explanation of proper venue to the Court within 14 days of this Order. Defendants shall have 14 days to respond. Signed by Judge B. Avant Edenfield on 04/25/2011. (lmm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GEORGIA RIVER NETWORK and
AMERICAN RIVERS,
Plaintiffs,
v.

4: 10-cv-267

U.S. ARMY CORPS OF ENGINEERS, et
al.,
Defendants,
and
GRADY COUNTY BOARD OF
COMMISSIONERS,
Intervenor.
ORDER
I. INTRODUCTION
Georgia River Network and American
Rivers (collectively “Plaintiffs”) filed a
complaint against the United States Army
Corps of Engineers (the “Corps”),
Lieutenant General Robert L. Van Antwerp,
Colonel Jeffrey M. Hall, and Russell L.
Kaiser (collectively “Defendants”). See
Doc. 1.
In the complaint, Plaintiffs challenge the
Corps’s decision to authorize construction of
a dam across part of Tired Creek fishing
lake (“Tired Creek”), which is located in
Grady County, Georgia. See id. at 2. Grady
County itself was heavily involved in the
approval process, and, according to
Plaintiffs’ allegations, worked closely with

the Corps in obtaining approval for the dam.
See id. at 2-3.
Plaintiffs claim that the Corps’s decision
was improper because it was not based on a
valid, demonstrated need for the dam. See
id. at 3. Plaintiffs also claim that the Corps
violated a number of federal environmental
statutes by: (1) failing to prepare an
adequate alternatives analysis as required
under the Clean Water Act (“CWA”); (2)
underestimating wetland impact in violation
of the CWA; (3) failing to properly assess
indirect environmental impacts in violation
of the National Environmental Policy Act
(“NEPA”); and (4) failing to prepare an
environmental impact statement. See id. at
3-4.
Plaintiffs allege that venue is proper in
the Savannah Division of the Southern
District of Georgia because the Corps
resides in Savannah. See id. at 4. In its
answer to the complaint, the Corps neither
affirmed nor denied its residence in
Savannah; instead, it responded to Plaintiffs’
venue allegation by stating that the
allegation was a legal conclusion that
required no response. See Doc. 12 at 3.
Grady County Board of Commissioners
later intervened in the suit, and responded in
like manner to Plaintiffs’ venue allegations.
See Doc. 13-1 at 5.
Two motions are now pending before the
Court—Plaintiff’s Motion to Consider
Extra-Record Documents, see Doc. 28, and
a Motion to Intervene filed by Leon County,
Florida, see Doc. 30.
Before ruling on either of these motions,
the Court expresses its concern that the
Southern District of Georgia is not the

appropriate venue in which to decide this
case. Tired Creek is located in the Middle
District of Georgia, and it appears from the
relatively brief record, that most relevant
events occurred in the Middle District of
Georgia.

Despite the considerable discretion
afforded district courts in transferring
matters under § 1404(a), “‘the judge should,
at minimum, issue an order to show cause
why the case should not be transferred, and
thereby afford the parties an opportunity to
state their reasons.”’ Id. (quoting Starnes v.
Small, 512 F.2d 918, 934 (D.C. Cir. 1974)).

II. ANALYSIS
Under 28 U.S.C. § 1404(a), “[f]or the
convenience of parties and witnesses, in the
interest of justice, a district court may
transfer any civil action to any other district
or division where it might have been
brought.”

Here, Plaintiffs’ allegations challenge a
decision by the Corps to allow construction
of a dam affecting Tired Creek, which is
located in Grady County, Georgia. See Doc.
1 at 15-16. Grady County is situated in the
Middle District of Georgia. 28 U.S.C.
§ 90(b). Although the approval process was
protracted, there are no allegations in
Plaintiffs’ nearly fifty-page complaint that
any significant part of it took place in
Savannah. The only tie to the Southern
District of Georgia appears to be Plaintiffs’
allegation that the Corps resides here—an
allegation not admitted by the Corps. To the
contrary, Plaintiffs make much in the
complaint about their deep ties to Grady
County. See, e.g., Doc. 1 at 6. In addition,
the complaint details intense negotiations
with Grady County officials, which included
a number of site visits. See, e.g., id. at 29.

Because the Defendants are a
government agency and employees of that
agency, venue is proper in any judicial
district in which:
(1) a defendant in the action resides,
(2) a substantial part of the events or
omissions giving rise to the claim
occurred, or a substantial part of
property that is the subject of the
action is situated, or (3) the plaintiff
resides if no real property is involved
in the action.
28 U.S.C. § 1391(e).
As the Eleventh Circuit recently noted,
“there is a ‘long-approved practice of
permitting a court to transfer a case sua
sponte under the doctrine of forum non
conveniens, as codified at 28 U.S.C.
§ 1404(a),’ but only ‘so long as the parties
are first given the opportunity to present
their views on the issue.’” Tazoe v. Airbus
S.A.S., 631 F.3d 1321, 1336 (11th Cir.
2011) (quoting Costlow v. Weeks, 790 F.2d
1486, 1488 (9th Cir. 1986)).

Given the special relationship of this
dispute to property located in the Middle
District, the Court is hesitant to exercise its
jurisdiction. The parties are therefore
ordered to show cause why this matter
should not be transferred to the United
States District Court for the Middle District
of Georgia for plenary disposition.

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III. CONCLUSION
Plaintiffs shall file an explanation of
proper venue to the Court within fourteen
(14) days of this order. Defendants shall
have fourteen (14) days to respond. Replies
shall only be permitted by leave of Court.

This 25th day of April 2011.

I) gj5/:j

(7

B AVANT PDENFIELØ, JUDGE
UNFED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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