Mattwaoshshe v. United States
| Decision Date | 17 August 2021 |
| Docket Number | Case No. 20-cv-1317 (TSC) |
| Citation | 557 F.Supp.3d 28 |
| Parties | Jeremy MATTWAOSHSHE, et al., Plaintiffs, v. UNITED STATES of America, et al., Federal Defendants, and NextEra Energy, Inc., et al. |
| Court | U.S. District Court — District of Columbia |
James Renne, Arlington, VA, Blair Kenneth Drazic, Pro Hac Vice, CO - Colorado, Loma, CO, for Jeremy Mattwaoshshe, Justin Stallbaumer.
Daniel Thomas Donovan, Ragan Naresh, Kirkland & Ellis LLP, Washington, DC, for Nextera Energy, Inc., Nextera Energy Resources, LLC, Soldier Creek Wind, LLC, Nextera Energy Constructors LLC, Nextera Energy Transmission Southwest LLC, Nextera Energy Marketing LLC, Nextera Energy Operating Services LLC, Nextera Energy Project Management LLC.
Amadou Kilkenny Diaw, Rebecca Ruby Anzidei, RuyakCherian, LLP, Washington, DC, Ray D. McKenzie, Wtaii PLLC, Vienna, VA, Warren Thomas Allen, II, Wtaii PLLC, Arlington, VA, Nick Kurt, Pro Hac Vice, Berkowitz Oliver LLP, Kansas City, MO, for Westar Energy.
Davis Aaron Backer, Sean Christian Duffy, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for United States of America, U.S. Department of Transportation, Elaine Chao, Federal Aviation Administration, Steve Dickson, Federal Energy Regulatory Commission, Department of Army, Ryan McCarthy, William Barr.
TANYA S. CHUTKAN, United States District Judge Plaintiffs Justin Stallbaumer and Jeremy Mattwaoshshe have sued to stop the construction of a wind generation project in Nemaha County, Kansas. Plaintiffs claim that Defendants Soldier Creek Wind LLC, NextEra Energy Inc. and its subsidiaries1 (hereinafter "the NextEra Defendants"), and Evergy Kansas2 (collectively "the Corporate Defendants") were negligent in constructing the project and that the project is a private nuisance under Kansas law. Plaintiffs also seek miscellaneous relief against a number of federal entities, including the Department of Transportation, the Federal Aviation Administration ("FAA"), the Federal Energy Regulatory Commission ("FERC"), the U.S. Army Corps of Engineers, the U.S. Department of Justice, and the heads of each of those agencies in their official capacities (collectively "the Federal Defendants").
Presently before the court are motions to dismiss for lack of personal jurisdiction submitted by Evergy and NextEra (ECF Nos. 39, 40), and motions to dismiss for lack of subject-matter jurisdiction submitted by Solider Creek and the Federal Defendants (ECF Nos. 36, 38). The court concludes that it lacks jurisdiction over Plaintiffs’ claims and, accordingly, will GRANT all four motions.
On May 18, 2020, Stallbaumer, a Kansas resident, and Mattwaoshshe, a citizen of the Kickapoo Nation and Indian Tribe, filed a class action complaint, seeking to enjoin the construction of the Soldier Creek Wind Project in southern Nemaha County, Kansas. In short, Plaintiffs, who live near the project site, allege that the wind towers erected as part of the project will damage their health, kill local endangered species, and interfere with their quiet and peaceful enjoyment of their properties. ECF No. 43, Am. Compl. ¶ 17.
Plaintiffs also moved for a temporary restraining order on the same date they filed their initial complaint. ECF No. 3. On June 16, 2020 the court denied the motion, finding it unlikely that Plaintiffs could establish personal jurisdiction over the Corporate Defendants. ECF No. 28. The court also ordered the parties to show cause as to why this case should not be transferred to the U.S. District Court for the District of Kansas, although it ultimately declined to transfer the action. Id. Plaintiffs were granted leave to amend their complaint on July 2, 2020. ECF No. 33. On January 1, 2021, they informed the court that the Soldier Creek Project had become fully operational sometime in late 2020. ECF No. 54. Although Plaintiffs had sought an injunction to prevent the project's construction, their claims are not moot, because they also seek damages related to the way the project was built and operates.
Plaintiffs allege that FERC violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531 et seq., in allowing NextEra to connect the wind energy project to the national electric grid. Am. Compl. ¶¶ 52, 54–56. Plaintiffs next contend that the FAA (and, by extension, the Department of Transportation) violated NEPA in failing to perform an Environmental Assessment or to prepare a full Environmental Impact Statement, id. ¶¶ 35–51, and violated the ESA in issuing a series of "no hazard" determinations under 14 C.F.R. § 77.9, id. ¶ 52. Plaintiffs also claim the U.S. Army Corps of Engineers violated the ESA by granting permits to NextEra to transport heavy construction equipment over controlled waterways. Id. ¶ 53. Lastly, invoking various provisions of Title 25 and the American Indian Religious Freedom Act, 42 U.S.C. § 1996, Plaintiffs seek a mandamus order directing the Department of Justice to represent Plaintiff Jeremy Mattwaoshshe and his tribe in this matter. Am. Compl. ¶ 60–65.
Plaintiffs also bring Kansas state law nuisance and negligence claims against Evergy, the NextEra Defendants, and Soldier Creek, alleging that the Soldier Creek Project unreasonably interferes with the use and enjoyment of their property and that these Defendants violated a duty of care owed to Plaintiffs in the planning and construction of the project. Id. ¶¶ 76–84.
The Federal Defendants have moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject-matter jurisdiction. ECF No. 36. They argue that the appellate courts have exclusive jurisdiction over the claims against FERC and the FAA (and, by extension, the Department of Transportation). ECF No. 38. They also contend that Plaintiffs have failed to meet the jurisdictional prerequisites to maintain their claims against the Army Corps of Engineers and the Department of Justice. Id.
Defendants Evergy and NextEra have moved to dismiss pursuant to Fed. R. Civ. P.12(b)(2). ECF Nos. 39, 40, arguing that Plaintiffs have failed to allege a sufficient nexus between their claims and these companies’ contacts with the District of Columbia for this court to exercise personal jurisdiction.
And while Defendant Soldier Creek has consented to personal jurisdiction, it asks the court to decline to exercise supplemental jurisdiction over the state law claims.
For the reasons that follow, the court finds that it lacks jurisdiction to adjudicate any of Plaintiffs’ claims against the Federal Defendants and Defendants Evergy and NextEra. The court also declines to exercise supplemental jurisdiction over Soldier Creek. Accordingly, the complaint will be dismissed.
Jurisdiction to review both FERC and FAA orders is vested exclusively in the courts of appeals, not with this court.3 Plaintiffs also failed to provide the required sixty-day notice of their intent to sue the Army Corps of Engineers under the ESA. Finally, Plaintiffs’ request for an order of mandamus will be denied because neither Title 25 nor AIRFA require the Department of Justice to litigate on Plaintiffs’ behalf.
When a defendant files a motion to dismiss a complaint for lack of subject-matter jurisdiction, the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence. Lujan v. Defenders of Wildlife , 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A court must "assume the truth of all material factual allegations in the complaint and construe the complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged[.]" Am. Nat'l Ins. Co. v. FDIC , 642 F.3d 1137, 1139 (D.C. Cir. 2011) (internal quotation marks omitted). However, "the court need not accept factual inferences drawn by plaintiffs if those inferences are not supported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions." Disner v. United States , 888 F. Supp. 2d 83, 87 (D.D.C. 2012) (internal quotation marks omitted).
Congress has vested exclusive jurisdiction to review FERC orders in the courts of appeals under the Federal Power Act, 16 U.S.C. § 825l (b), which provides:
Any party ... aggrieved by an order issued by the [Federal Energy Regulatory] Commission ... may obtain a review of such order in the United States court of appeals for any circuit wherein the licensee or public utility to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia ... Upon the filing of such petition such court shall have jurisdiction, which upon the filing of the record with it shall be exclusive, to affirm, modify, or set aside such order in whole or in part.
16 U.S.C. § 825l (b).
The D.C. Circuit has unambiguously held that "where a statute commits review of agency action to the Court of Appeals, any suit seeking relief that might affect the Circuit Court's future jurisdiction is subject to the exclusive review of the Court of Appeals."
Telecomms. Rsch. & Action Ctr. v. FCC (TRAC ), 750 F.2d 70, 75 (D.C. Cir. 1984). As the Court explained in TRAC , "[a]ppellate courts develop an expertise concerning the agencies assigned them for review." Id. at 78. Thus, reserving exclusive jurisdiction in appellate courts "promotes judicial economy and fairness to litigants by taking advantage of that expertise." Id. "In addition, exclusive jurisdiction also eliminates duplicative and potentially conflicting review and the delay and expense incidental thereto." Id. (internal citation omitted).
Plaintiffs’ NEPA and ESA claims fall squarely within the exclusive jurisdiction reserved for courts of appeals. See Adorers of the Blood of Christ v. FERC , 897 F.3d 187, 197 (3d Cir. 2018) (quoting City...
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LAWYERING THE INDIAN CHILD WELFARE ACT.
...[section] 175. (10.) Most recently, a federal judge reaffirmed that [section] 175 is "discretionary." Mattwaoshshe v. United States, 557 F. Supp. 3d 28, 38 (D.D.C. 2021) (citing Pyramid Lake Paiute Tribe of Indians v. Morton, 499 F.2d 1095, 1097 (D.C. Cir. 1974)). The one reported case to t......