Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NEW HOPE POWER COMPANY and OKEELANTA CORPORATION, v. Plaintiffs, UNITED STATES ARMY CORPS OF ENGINEERS and STEVEN L. STOCKTON, Defendants. AMERICAN FARM BUREAU FEDERATION and UNITED STATES SUGAR CORPORATION v. Plaintiffs, UNITED STATES ARMY CORPS OF ENGINEERS, JO-ELLEN DARCY, and STEVEN L. STOCKTON, Defendants. No. 1:09-cv (RWR No. 1:10-cv (RWR DEFENDANTS MOTION TO CONSOLIDATE AND TO TRANSFER VENUE Pursuant to Federal Rule of Civil Procedure 42(a and Local Civil Rule 40.5(d, Defendants United States Army Corps of Engineers, Steven L. Stockton, and Jo-Ellen Darcy (collectively, the Corps, move to consolidate the two above-captioned cases, New Hope Power Company and Okeelanta Corporation v. U.S. Corps of Engineers and Steven L. Stockton, No. 1:09-cv (RWR, and American Farm Bureau Federation and United States Sugar Corporation v. U.S. Corps of Engineers, No. 1:10-cv (RWR. The Corps also moves to

2 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 2 of 13 transfer venue in American Farm Bureau Federation to the United States District Court for the Southern District of Florida, for the same reasons articulated in the Corps Motion to Transfer Venue to that district in New Hope, see New Hope Dkt. #5, with additional facts and argument included here as applicable to American Farm Bureau Federation. 1 Plaintiffs in American Farm Bureau Federation oppose the Corps motion to consolidate as well as the motion to transfer venue. Plaintiffs in New Hope have already opposed the Corps pending motion to transfer the New Hope case, and have indicated that they do not consent to the motion to consolidate. Procedural Background On December 23, 2009, Plaintiffs New Hope Power Company and Okeelanta Corporation (collectively, New Hope Plaintiffs filed a complaint alleging that the Corps has violated sections 553 and 706(2 of the Administrative Procedure Act ( APA, 5 U.S.C. 553, 706(2, by changing the rules governing Clean Water Act, 33 U.S.C , jurisdiction over agricultural lands without providing the public notice and opportunity for comment, and that such actions were arbitrary, capricious, an abuse of discretion, and contrary to law, and without observance of procedures required in the APA. New Hope Compl., 1, On March 1, 2010, the Corps filed a Motion to Transfer Venue in New Hope, requesting that this Court transfer the suit to the United States District Court for the Southern District of Florida. See Corps Transfer Motion, New Hope Dkt. #5. New Hope Plaintiffs opposed transfer. See New Hope Opposition, Dkt. #8 (Mar. 15, The Court has not yet ruled on the transfer motion. At the Court s direction, the Corps filed an Answer to the New Hope complaint on April 2, See New Hope Min. Order (Mar. 12, 2010; Dkt. #11. 1 In making this motion, the Corps reserves its right to raise any and all defenses to Plaintiffs complaint, including jurisdictional defenses. The Court may decide the motion to transfer venue before addressing any jurisdictional arguments. Shay v. Sight & Sound Sys., Inc., 668 F. Supp. 2d 80, 81 (D.D.C

3 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 3 of 13 On March 24, 2010, Plaintiffs American Farm Bureau Federation and U.S. Sugar Corporation (collectively, AFBF Plaintiffs filed a complaint alleging that the Corps has violated section 553 of the Administrative Procedure Act, 5 U.S.C. 553, by adopting or amending a rule without providing the public notice and opportunity for comment. AFBF Compl., (Count 1. AFBF Plaintiffs also allege that the Corps failed to provide a reasoned explanation for amending the rule, making the Corps action arbitrary and capricious within the meaning of 5 U.S.C. 706(2. Id. at (Count 2. AFBF Plaintiffs filed a notice of related case, indicating the presence of common issues of law and fact in both cases. AFBF Dkt. # 2. The deadline for the Corps to answer or otherwise respond to the AFBF complaint is June 1, See AFBF Dkt. #5. I. THE NEW HOPE AND AMERICAN FARM BUREAU CASES SHOULD BE CONSOLIDATED A. Legal Standard for Consolidation of Cases Federal Rule of Civil Procedure 42(a provides that [i]f actions before the court involve a common question of law or fact, the court may... consolidate the actions. Fed. R. Civ. P. 42(a(2. Consolidation helps relieve the parties and the court of the burden of duplicative pleadings and court orders. Hanson v. Dist. of Columbia, 257 F.R.D. 19, 21 (D.D.C (internal quotations and citations omitted. Courts enjoy broad judicial discretion in deciding whether to consolidate. Scarborough v. Nat l Ass n of Surety Bond Producers, 474 F. Supp. 2d 64, (D.D.C In undertaking such an evaluation a court should consider both equity and judicial economy. Hanson, 257 F.R.D. at 21 (internal citations omitted. Consolidation is particularly appropriate when the actions are likely to involve substantially the same witnesses 3

4 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 4 of 13 and arise from the same series of events or facts, and when the actions involve the same parties and allegations and are at the same procedural posture. Id. B. Both Cases Present Challenges to the Same Alleged Final Agency Action Both cases before the court involve common issues and thus are appropriate for consolidation under Fed. R. Civ. P. 42(a. As a threshold matter, a court s jurisdiction to hear either case depends on both sets of plaintiffs common assertion that two agency memoranda addressing the Everglades Agricultural Area are final agency action subject to judicial review. The question of whether a federal court has jurisdiction to hear either of these cases is a common issue of law, weighing in favor of consolidation. Resolving jurisdiction for both cases through consolidated proceedings would also be efficient and avoid inconsistent results. Beyond jurisdictional questions, both cases assert procedural and substantive claims under the APA, challenging the same agency memoranda. Specifically, both sets of plaintiffs allege that an April 30, 2009 memorandum signed by Defendant Stockton (the Headquarters EAA Memorandum, and a March 10, 2009 Issue Paper prepared by the Jacksonville District ( Jacksonville Issue Paper, constitute a new rule, or an amendment to a prior rule, regarding the Corps regulatory jurisdiction over prior converted cropland, that the Corps allegedly issued without following proper rulemaking procedures under the APA. AFBF Compl. (Count I; New Hope Compl. (First Claim for Relief. 2 Both sets of plaintiffs further claim that the alleged new or amended rule is arbitrary and capricious under the APA. AFBF Compl. (Count II; New Hope Compl. (First Claim for Relief. New Hope Plaintiffs also allege that the Corps 2 Plaintiffs allegations also appear to rely on statements made in unspecified associated documents, (AFBF Compl. at 23, and related agency pronouncements (New Hope Compl. at 84. Plaintiffs complaints reference statutory provisions, regulations, guidance documents, Federal Register Notices, letters and other communications, and other documents in their complaints. It is unclear precisely which documents either set of plaintiffs intends to refer when it refers to associated documents or related agency pronouncements. 4

5 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 5 of 13 changed its interpretation regarding prior converted cropland, in violation of the APA. New Hope Compl. (Third Claim for Relief. In addition, both sets of plaintiffs seek similar relief. Both sets of plaintiffs ask the Court to declare the challenged agency memoranda to be invalid and issued in violation of the APA, to set the memoranda aside, and enjoin the Corps from relying on the memoranda or the statements therein. See AFBF Compl. at 23, New Hope Compl. at 30. Thus, both sets of plaintiffs claims will require the Court to review the Headquarters EAA Memorandum and the Jacksonville Issue Paper. Moreover, all of the plaintiffs claims involve essentially the same legal issues under the APA and no factual issues. James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1096 (D.C. Cir ( Generally speaking, district courts reviewing agency action under the APA's arbitrary and capricious standard do not resolve factual issues, but operate instead as appellate courts resolving legal questions., cert. denied, 519 U.S (1997. As this Court has noted, consolidation is appropriate when the actions involve review of the same underlying [agency] decision. Biochem Pharma, Inc. v. Emory Univ., 148 F. Supp. 2d 11, 13 (D.D.C (R. Roberts (consolidating actions challenging same decision of Patent and Trademark Office. To the extent that a reviewable agency decision is at issue in these cases, both sets of plaintiffs challenge the same decision for the same reasons. Finally, the New Hope Plaintiffs assert additional APA challenges alleging that the Corps promulgated a new rule or an amendment to a rule with regard to how the Corps determines the scope of its jurisdiction over wetlands. See New Hope Compl. (Second, Fourth, Fifth, and Sixth Claims for Relief. These claims reflect further legal challenges to the Headquarters EAA Memorandum and the Jacksonville Issue Paper and thus are sufficiently related to the other claims in the two cases to warrant consolidation. 5

6 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 6 of 13 C. Prejudice to Plaintiffs Is Unlikely In Light of the Similar Procedural Posture of the Two Cases In light of the similar procedural posture of both cases, consolidation at this time is unlikely to result in any prejudice to the plaintiffs. In New Hope, the Corps has answered the complaint and awaits a ruling on the transfer motion. There are no status conferences or briefing deadlines scheduled. In American Farm Bureau Federation, the deadline for the Corps to answer or otherwise respond to the complaint is June 1, No dispositive motions have been filed in either case, nor have any briefing schedules been set for such motions. It is unlikely that any prejudice to the plaintiffs would result from consolidating the cases at this point in their procedural development. In contrast, if the two cases are not consolidated, the Corps and the Court could be burdened by inconsistent schedules and duplicative briefing. Any concerns the parties have regarding future proceedings in either action could be addressed by the Court through a scheduling or case management order. See Fed. R. Civ. P. 42(a(3 (allowing courts to issue any other orders to avoid unnecessary cost or delay where actions involve a common issue of law or fact. Nor should either set of plaintiffs have any objections to consolidation as a threat to their rights. Consolidation does not merge the suits into a single cause, or change the rights of parties, or make those who are parties in one suit parties in another. Johnson v. Manhattan Ry. Co., 289 U.S. 479, (1933; see also Newfound Mgmt. v. Lewis, 131 F.3d 108, 116 (3d Cir ( Johnson remains the authoritative statement on the law of consolidation.. Rather, consolidation is a purely ministerial act which, inter alia, relieves the parties and the Court of the burden of duplicative pleadings. New York v. Microsoft Corp., No. Civ. A , 2002 WL , at *4 (D.D.C. Jan. 28, The Court and the parties in these two suits would be able to resolve any future 6

7 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 7 of 13 procedural concerns in a manner that avoids duplication of efforts while retaining each party s substantive rights. II. AMERICAN FARM BUREAU FEDERATION SHOULD BE TRANSFERRED TO FLORIDA The Corps has already filed a Motion to Transfer New Hope to the United States District Court for the Southern District of Florida. See Corps Transfer Motion, New Hope Dkt. #5. The same factors favoring transfer of New Hope to the Southern District of Florida also weigh heavily in favor of transferring American Farm Bureau Federation to the Southern District of Florida. As described above, these cases both turn on the Court s review of (1 the Jacksonville Issue Paper and (2 the Headquarters EAA Memorandum. The Jacksonville Issue Paper describes the Jacksonville District s anticipated approach for making determinations regarding the Corps jurisdiction over certain projects in the Everglades Agricultural Area. The Headquarters EAA Memorandum merely concurs in the Jacksonville District s approach for making jurisdictional determinations regarding certain projects in the Everglades Agricultural Area. See Corps Transfer Motion at 7. In light of the close relationship between these documents and the Everglades Agricultural Area, and the strong local interest in having these cases heard in Florida, the Corps believes that both cases should be heard in the Southern District of Florida, where the Everglades Agricultural Area is located. In the interest of minimizing duplication, the Corps incorporates its Motion to Transfer Venue and Reply brief filed in New Hope. The Corps has already addressed the private and public interest factors the Court must balance when considering a venue transfer pursuant to 28 U.S.C. 1404(a, and how those factors relate to New Hope. The Corps limits discussion here to applying that standard to the relevant factors unique to the AFBF Plaintiffs case. 7

8 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 8 of 13 A. Venue is Proper in the Southern District of Florida Like New Hope, American Farm Bureau Federation satisfies the first showing required for transfer of venue: the case could have been filed in the United States District Court for the Southern District of Florida. 3 See Aftab v. Gonzalez, 597 F. Supp. 2d 76, (D.D.C (movant must show that the transferee forum is a district where the action might have been brought. In a suit against the United States, 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. In the two cases here, a substantial part of the events giving rise to the claims occurred in South Florida. AFBF Plaintiffs purport to challenge a Headquarters New Rule, which they improperly characterize as a final agency action that was promulgated in Washington, D.C. See AFBF Compl. 13. However, the Headquarters EAA Memorandum merely concurs in the approach the Jacksonville District described it would undertake with regard to certain projects within the EAA, as outlined in the Jacksonville Issue Paper. Both the Headquarters EAA Memorandum and the Jacksonville Issue Paper address the Jacksonville District s anticipated approach for making jurisdictional determinations with regard to several mining projects in the Everglades Agricultural Area. Consequently, a substantial part of the events giving rise to the claims occurred in South Florida and involve property that is located in South Florida. The Everglades Agricultural Area is located in South Florida, primarily within Palm Beach County. Corps Transfer Motion, New Hope Dkt. #5, at 3, The United States District Court for the 3 The United States does not dispute that the District of Columbia is a proper venue in American Farm Bureau Federation. Rather, the Southern District of Florida is also a proper venue and, moreover, is the most appropriate venue. 8

9 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 9 of 13 Southern District of Florida has jurisdiction over parties and claims arising in Palm Beach County. 28 U.S.C. 89(c. Thus, the Southern District of Florida is an appropriate venue. As noted in the Corps Motion to Transfer, the Corps Jacksonville District office is located within the jurisdiction of the United States District Court for the Middle District of Florida, so venue would also properly lie in that district because both sets of plaintiffs challenge actions by Corps officials in the Jacksonville District office. See Corps Transfer Motion at 10. The Corps Jacksonville District office has responsibility for overseeing the administration of the Clean Water Act in most of the State of Florida, including within the Everglades Agricultural Area. Venue would also be proper in the Middle District of Florida because plaintiff U.S. Sugar is a resident of Clewiston, Florida. See AFBF Compl. (caption. 4 Clewiston is located in Hendry County, which is within the jurisdiction of the United States District Court for the Middle District of Florida. 28 U.S.C. 89(b. While venue would be appropriate in the Middle District of Florida and the Corps would not oppose transfer to the Middle District of Florida, the Corps believes that the Southern District of Florida is the most appropriate venue in this case given that the challenged agency actions address the Everglades Agricultural Area. B. The Balance of Private and Public Interests Favors Transferring American Farm Bureau Federation to Florida As in New Hope, the case-specific factors related to the public interest of justice and the private interests of the parties and witnesses the second necessary element for a transferee movant to show favor transferring American Farm Bureau Federation to the Southern District of Florida. See Aftab v. Gonzalez, 597 F. Supp. 2d at 80 (reciting the test for transfer of venue under 28 U.S.C. 1404(a. Most importantly, as described in the Corps pending transfer 4 See also U.S. Sugar Corporation website at ( With its headquarters in Clewiston, Florida, the Company farms over 187,858 acres in Hendry, Glades, and Palm Beach counties.. 9

10 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 10 of 13 motion in New Hope, the Corps believes this case should be heard in Florida because most of the material events underlying Plaintiffs claims have occurred or may occur in Florida and the citizens of Florida have a far greater interest in this dispute than the citizens of the District of Columbia. Corps Transfer Motion, New Hope Dkt. #5 at 12. For the same reasons articulated in the pending transfer motion, American Farm Bureau Federation has a substantial connection to Florida weighing heavily in favor of hearing the case in that district. Beyond U.S. Sugar s ownership of land in the EAA within the jurisdiction of Southern District of Florida, both AFBF Plaintiffs and New Hope Plaintiffs challenge as the heart of their cases Corps documents that explicitly address how the Corps intends to approach making jurisdictional determinations in the Everglades Agricultural Area (emphasis added. The Everglades Agricultural Area is unique to Florida, owing to its location in the historic Florida Everglades. The Area currently is a focal point for an ongoing, public debate regarding restoration of the Florida Everglades. The scope of the Corps jurisdiction and its ability to regulate activities in this ecologically sensitive area affects the local environment, which makes this case a local controversy that should be decided in a local court. As noted in the Corps Motion to Transfer at 11, deference to a plaintiff s choice of forum is weakened where the plaintiff does not reside in the forum and most of the relevant events occurred elsewhere. Intrepid Potash-New Mexico, LLC v. Dep t of Interior, 669 F. Supp. 2d 88, 95 (D.D.C Both of the New Hope Plaintiffs (New Hope Power and Okeelanta Corporation are based in Florida, one of the AFBF Plaintiffs, U.S. Sugar, is a resident of Florida. Between these two cases and four plaintiffs, three plaintiffs are Florida entities that own or lease land in the Everglades Agricultural Area that they allege has been affected by the Corps actions. Thus, the majority of plaintiffs reside in Florida. 10

11 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 11 of 13 That the AFBF resides in Washington, D.C. should not outweigh the local interest in having these cases decided in Florida. The agency memoranda that the AFBF plaintiffs are challenging explicitly address the Corps intended approach to determining the scope of its geographic jurisdiction on lands within the Everglades Agricultural Area and thus this litigation is of particular interest to the citizens of Florida. Further, although AFBF is based in Washington, D.C., it alleges it is a federation of State Farm Bureaus including Florida, and thus has connections to Florida. AFBF Compl. 14. As noted in the Corps Motion to Transfer in New Hope, courts in the District of Columbia must carefully consider challenges to venue to guard against the danger that a plaintiff might manufacture venue in the District of Columbia. Sierra Club v. Flowers, 276 F. Supp. 2d 62, 65 (D.D.C (internal citations omitted; Corps Transfer Motion at 9. Here, the similar situation of three of the four plaintiff groups as owning or leasing land in the Everglades Agricultural Area weighs heavily in favor of resolving this case in the forum where those lands are located and where the challenged agency memoranda are directed the Southern District of Florida. Respectfully submitted, IGNACIA S. MORENO Assistant Attorney General s/ Christina Richmond CHRISTINA RICHMOND Trial Attorney U.S. Department of Justice Environment & Natural Resources Division Environmental Defense Section P.O. Box Washington, D.C Telephone: ( Facsimile: (

12 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 12 of 13 Of Counsel: Daniel Inkelas Office of the Chief Counsel U.S. Army Corps of Engineers 441 G Street N.W. Washington, D.C John F. Kasbar Assistant District Counsel U.S. Army Corps of Engineers 701 San Marco Boulevard Jacksonville, Florida DATED: May 6,

13 Case 1:10-cv RWR Document 9 Filed 05/06/10 Page 13 of 13 CERTIFICATE OF SERVICE I, Christina L. Richmond, certify that on May 6, 2010, the foregoing Motion to Consolidate and Transfer Venue was filed through the Court s electronic filing system, which will provide electronic notice to counsel registered with the electronic filing system. /s/ Christina L. Richmond Christina L. Richmond 13

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