Sierra Club v. Van Antwerp

• Decision Date: 04 December 2007
• Docket Number: Civil Action No. 07-1756(RCL).
• Citation: 523 F.Supp.2d 5
• Parties: SIERRA CLUB, et al., Plaintiffs, v. Lt. Gen. Robert L. VAN ANTWERP, et al., Defendants.
• Court: U.S. District Court — District of Columbia

523 F.Supp.2d 5

SIERRA CLUB, et al., Plaintiffs, v. Lt. Gen. Robert L. VAN ANTWERP, et al., Defendants.

Civil Action No. 07-1756(RCL).

United States District Court, District of Columbia.

December 4, 2007.

COPYRIGHT MATERIAL OMITTED

Erie Robert Glitzenstein, Howard M. Crystal, Joshua R. Stebbins, Meyer, Glitzenstein & Crystal, Washington, DC, for Plaintiffs.

Mark Arthur Brown, Kristofor R. Swanson, Samantha Klein, U.S. Department of Justice, Washington, DC, for Defendants.

Eric Grannon, White & Case, LLP, Washington, DC, for Movants.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, District Judge.

Now before the Court comes putative intervenors, Sierra Properties I, LLC, Pasco 54, LTD, Pasco Ranch, Inc., and JG Cypress Creek LLC's ("Intervenors") motion [8] to intervene under Federal Rule of Civil Procedure 24. Plaintiffs do not oppose permissive intervention pursuant to Rule 24(b). Upon consideration of the parties' filings, the applicable law, and the facts of this case, the Court finds that the motion to intervene will be GRANTED.

Upon deciding to grant Intervenors' motion to intervene, this Court next considers defendants' motion [5] to transfer venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). After full consideration of the party's filings, the facts, and applicable law, this Court finds that the motion to transfer venue will be DENIED and that this Court shall retain jurisdiction over this matter.

I. BACKGROUND

Intervenors are developers of Cypress Creek Town Center ("CCTC"), a regional shopping mall with supporting commercial establishments, including retail businesses, hotels, restaurants, cinemas, and multi-family residential housing. The development is located on approximately 507 acres of undeveloped land in Pasco County, Florida. (See Compl. ¶¶ 56-58.) In May 2005, Sierra Properties applied for a Clean Water Act ("CWA") permit pursuant to CWA section 404. (See Intervenors' Mem. at 3.) On October 31, 2005, the Army Corps of Engineers ("Corps") issued a public notice regarding CCTC's proposed filling of approximately 54 acres of wetlands and 10 acres of surface waters with 270,418 cubic yards of fill material. (See Compl. ¶ 82.) At that time, a public comment period began wherein extensive comments were made regarding the environmental impact of the CCTC development. (See id. ¶¶ 84-87.) Following the comment period, the Corps issued an Environmental Assessment finding that CCTC would not cause unacceptable environmental impacts and issued the requested section 404 permit allowing development of CCTC to proceed. (See id. ¶ 88; Environmental Assessment, Ex. A to Intervenors' Mem.)

On October 1, 2007, plaintiffs¹ filed suit in this Court against the government defendants alleging improper issuance of the CWA section 404 permit and an improper concurrence letter issued by the United States Fish and Wildlife Service ("FWS") stating that "CCTC would not adversely impact four endangered species, the Wood Stork, the Florida Scrub Jay, the Eastern Indigo Snake, and the Manatee. (See Compl. ¶¶, 4.) Plaintiffs' complaint asks this court to find that the section 404 permit was issued in violation of the Endangered Species Act, the CWA, the National Environmental. Policy Act, the Administrative Procedure Act, and their accompanying regulations. (See id. ¶ 131.) Thus, plaintiffs request that the Corps' permit and the FWS concurrence letter be remanded to accurately assess impacts to threatened species and to compel compliance with CWA requirements for avoidance and minimization of impacts to wetlands and waters. (See id. ¶ 5.)

Intervenors filed their motion to intervene on October 16, 2007. Intervenor Sierra Properties is the developer of CCTC and holds the permit in question while each of the other intervenors owns a portion of the CCTC property. (See Intervenors' Mem. at 2.) Intervenors seek intervention as a matter of right pursuant to Federal Rule of Civil Procedure 24(a)(2), and alternatively ask this Court to grant permissive intervention pursuant to Rule 24(b). (See id. at 4, 10.) Plaintiffs do not oppose permissive intervention under Rule 24(b) but do object to intervention as a matter of right and state that intervenors have not shown how the interests of the government defendants and the intervenors may diverge. (See Pl's Resp. at 4-5.)

Government defendants moved to transfer this matter to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Defendants assert that the matter could have originally been brought in that district, and that the convenience of the parties and witnesses and the interest of justice weigh in favor of transfer. Particularly, the government points to the suit's local Florida impact and state that plaintiffs' choice of forum is entitled to little deference because there is merely an attenuated connection between the controversy and the District of Columbia. (See Pls.' Mot. to Transfer at 4-11.) Additionally, both the government and Intervenors note that plaintiffs' counsel filed a substantially similar lawsuit in the Middle District of Florida — Citizens for Sanity. Com, Inc. v. Antwerp — on June 26, 2007, and filed a notice of voluntary dismissal the following day once the case was assigned to Judge Steven D. Merryday. (See Compl., Ex. 1 to Mot. to Transfer; Notice of Dismissal, Ex. 2 to Mot. to Transfer.) Intervenors cite that case as evidence of "blatant forum shopping" that weighs in favor of this Court transferring venue to the Middle District of Florida. (See Intervenors' Reply at 8.) Plaintiffs respond that this case should not be transferred from the District of Columbia for reasons including: (1) plaintiffs are entitled to a strong presumption in favor of the chosen forum; (2) disposition of this case will be determined on the basis of the administrative record, thus making access to proof and convenience of witnesses irrelevant; and, (3) there is a connection between the subject of this litigation and the District of Columbia. (See Pls.' Opp. to Transfer at 7-18.)

II. ANALYSIS

A. Intervention

1. Legal Standard

Federal Rule of Civil Procedure 24 sets forth the requirements for intervention as of right and permissive intervention. FED. R. Civ. P. 24. Rule 24(a) provides for intervention as of right, stating that:

[o]n timely motion, the court must permit anyone to intervene who ... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest.

The rule indicates that an applicant's right to intervene depends on:

(1) the timeliness of the motion; (2) whether the applicant "claims an interest relating to the property or transaction which is the subject of the action;" (3) whether the "applicant is so situated that the disposition of the action may as a practical matter impair or impede the, applicant's ability to protect that interest;" and (4) whether "the applicant's interest is adequately represented by existing parties."

Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C.Cir.2003); see also Jones v. Prince George's County, Md., 348 F.3d 1014, 1017 (D.C.Cir.2003). Additionally, an applicant must demonstrate that it has standing. Jones, 348 F.3d at 1017-18.

As an alternative to intervention as of right, Rule 24(b)(2) authorizes permissive intervention for an applicant who timely files a motion when the applicant "has a claim or defense that shares with the main action a common question of law or fact." FED. R. CIV. P. 24(b)(1). An applicant for permissive intervention must establish the threshold requirements of: (1) an independent ground for subject matter jurisdiction; (2) a timely motion; and, (3) a claim or defense that has a question of law or fact in common with the main action. Id.; see E.E.O.C. v. Nat'l Children's Center, Inc., 146 F.3d 1042, 1046 (D.C.Cir.1998). "[P]ermissive intervention is an inherently discretionary enterprise" and the court enjoys considerable latitude under Rule 24(b). Nat'l Children's Center, 146 F.3d at 1046-48; see Nat'l. Def. v. Leavitt, 329 F.Supp.2d 55, 66 (D.D.C.2004) (stating that "the court enjoys considerable discretion under Rule 24(b)"). In considering a motion for permissive intervention, a court must also determine whether the proposed intervention "will unduly delay or prejudice the adjudication of the original parties' rights." FED.R.CIV.P. 24(b)(3).

2. Application of Permissive Intervention Standard

This Court finds that it is appropriate to grant Intervenors' unopposed motion for permissive intervention pursuant to Federal Rule of Civil Procedure 24(b).² First, the Court has an independent ground for asserting subject-matter jurisdiction. See 28 U.S.C. § 1331 (setting forth federal question jurisdiction); see also 16 U.S.C. § 1540(g) (providing district courts with jurisdiction over citizen suits against "any person" who is alleged to be in violation of the Endangered Species Act). As defendants, Intervenors would be subject to claims — namely violations of several federal statutes — "arising under" the laws of the United States. See 28 U.S.C. § 1331. Thus, the Court has subject-matter jurisdiction.

Second, the Court finds that the motion to intervene was timely filed. Timeliness is determined by all of the circumstances in a case and is determined by the court in the exercise of its sound discretion. NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973). The timeliness of the motion to intervene is uncontested and the Court finds that the motion, filed within fifteen days after the complaint, was filed timely.

Third, Intervenors have defenses with common questions of law and fact with plaintiffs' claims. Intervenors are jointly developing CCTC and intervenor Sierra Properties holds the section 404 permit that plainti...