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Gorman Company, LLC, et al v. London Pikeville

February 24, 2011

GORMAN COMPANY, LLC, ET AL., PLAINTIFFS,
v.
LONDON PIKEVILLE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS, KENTUCKY COAL ASSOCIATION, ET AL.,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, ET AL., DEFENDANTS.



MEMORANDUM OPINION ORDER

) *** *** *** *** These matters are before the Court on the Motion to Transfer [R. 5] filed by Defendants the United States Environmental Protection Agency ("EPA") and the United States Army Corps of Engineers ("Corps) (collectively, the "United States") in the Gorman action, and the Motion to Transfer or, in the Alternative, to Reassign [R. 15] filed by the Defendants in the Kentucky Coal Association ("KCA") action. In both, the movants seek transfer to the United States District Court for the District of Columbia so that the cases may be consolidated with a related case pending in that jurisdiction, National Mining Ass'n v. Jackson, Civ. No. 1:10-cv-01220-RBW (D. D.C.). In the KCA action, the Defendants alternatively seek consolidation with Gorman in the Eastern District of Kentucky.

The Court heard oral arguments on the motions to transfer during a joint telephonic conference held December 7, 2010. Thereafter, the Court entered Orders [10-228, R. 18; 10-125, R. 36] staying both cases pending the District of Columbia court's ruling on a motion to dismiss pending in the National Mining Association ("NMA") case. In staying Gorman and Kentucky Coal Association, this Court noted that the D.C. court could grant the motion to dismiss on grounds applicable to the NMA that would not apply to the Plaintiffs in the Kentucky cases. Therefore, it made sense to reserve fully considering and ruling on the motions to transfer until the motion to dismiss had been resolved.

On January 14, 2011, United States District Judge for the District of Columbia Reggie B. Walton issued his opinion denying the motion to dismiss filed by the Defendants in the NMA action. See National Mining Ass'n v. Jackson, 2011 WL 124194, at *16 (D. D.C. Jan. 14, 2011). In the same opinion, Judge Walton resolved the Plaintiff's motion for a preliminary injunction. Id. at 8-16. Although he found that the Plaintiff had demonstrated a likelihood of success on the merits, he ultimately denied the motion on the ground that the Plaintiff had not demonstrated irreparable harm. See id.

Following Judge Walton's decision, a motion was filed in the Gorman and KCA cases to advance the status conference previously scheduled for March 16, 2011; all parties consented to the motion. [10-228, R. 19; 10-125, R. 27.] Accordingly, the Court conducted a telephonic status conference on February 16, 2011. During the hearing, the government defendants renewed their motions to transfer. The Plaintiffs in both cases stated that they continue to oppose transfer. After hearing final arguments from both parties on the issue, the Court took the matter under advisement. For the reasons that follow, the Court grants the motions and transfers both Gorman and KCA to the District of Columbia.

I.

Plaintiffs Gorman Company, LLC, Kycoga Company, LLC, Black Gold Sales, Inc., Kentucky Union Company, and Hazard Coal Corporation filed suit seeking declaratory and injunctive relief on August 10, 2010. [10-228, R. 1.] According to the Plaintiffs, they own land containing significant coal reserves that they lease to mining operators, and they have incurred and stand to further incur significant and irreversible harm as a result of the EPA's June 11, 2009 issuance of Enhanced Coordination Process ("EC Process") memoranda and April 1, 2010 issuance of a memorandum entitled "Detailed Guidance: Improving EPA Review of Appalachian Surface Coal Mining Operations Under the Clean Water Act, National Environmental Policy Act, and the Environmental Justice Executive Order" ("Detailed Guidance"). [Id. at ¶¶ 1-2.] Specifically, the Plaintiffs challenge a series of EPA and Corps actions that they contend "have unlawfully obstructed Clean Water Act permitting processes for coal mining," namely the processes for obtaining Section 402 permits, which govern pollutants that are assimilated by receiving waters, and Section 404 permits, which authorize the discharge of material that fills or displaces receiving waters. [Id. at ¶¶ 2, 19.] The Plaintiffs allege that these actions "have imposed insurmountable technical and economic burdens on the coal mining industry, effectively shutting down surface coal mining (and possibly significant underground coal mining) throughout much of Central Appalachia, including the areas in which Plaintiffs own mineral interests." [Id. at ¶ 1.]

The Plaintiffs bring their claims pursuant to Section 702 of the Administrative Procedure Act ("APA"). [Id. at ¶ 1.] Their Complaint contains eleven counts. [See id. at ¶¶ 95-145.]

Among these counts are claims that the Detailed Guidance and the EC Process constitute legislative rules that were not properly promulgated under the APA [id. at ¶¶ 95-97, 101-103] and claims that the Detailed Guidance violates the Clean Water Act ("CWA"), the National EnvironmentalPolicy Act ("NEPA"), and the Surface Mining Control and Reclamation Act ("SMCRA") [id. at ¶¶ 113-122, 129-141]. The Plaintiffs seek relief, including an injunction restraining the Defendants from implementing, applying, or enforcing the EC Process and the Detailed Guidance. [Id. at 41-42.]

Before the Gorman case was filed, on July 20, 2010, the National Mining Association filed its lawsuit in the United States District Court for the District of Columbia. [10-228, R. 1, Attach. 2.] The NMA's complaint and the Complaint in the case at bar name the same defendants and challenge the same regulatory actions. [See id., Attach. 2.] Indeed, the eleven counts contained in the NMA's complaint and the Complaint in the instant action are identical, and the same relief is sought. [Compare 10-228, R. 1 with R. 1, Attach. 2.]

On October 18, 2010, Plaintiff Kentucky Coal Association also filed suit seeking declaratory and injunctive relief.*fn1 [10-125, R. 1.] Like the Plaintiffs in Gorman and National Mining Association, the KCA challenges the EPA's use of the Detailed Guidance. [Id.] The KCA's Complaint, however, is much narrower. [See id.] It specifically challenges only the EPA's use of the Detailed Guidance in its oversight of the Commonwealth of Kentucky's issuance of National Pollutant Discharge Elimination System ("NPDES") permits under Section 402 of the Clean Water Act. [Id.] Further, the KCA's complaint contains only two counts. [See id.] In its first count, the KCA claims in part that the Detailed Guidance amounts to a legislative rule that the EPA has adopted in violation of the Administrative Procedure Act, as the EPA failed to subject the Detailed Guidance to the procedural requirements of public notice and comment rulemaking. [Id. at ¶ 60.] In its second count, the KCA asks the Court to enjoin and restrain the EPA "from utilizing the Detailed Guidance in its oversight of Section 402 KPDES permit decisions, and from implementing the significant changes to the Section 402 KPDES program discussed in the Detailed Guidance unless and until it complies with federal law and/or public notice and comment rulemaking." [Id. at ¶ 64.] These claims, of course, are similar to claims raised by the Plaintiffs in Gorman and National Mining Association.

II.

A. The Gorman Case

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."*fn2 In reviewing motions made pursuant to ยง 1404(a), courts consider a number of factors, including (1) convenience of the parties and the witnesses, (2) accessibility of sources of proof, (3) the costs of securing testimony from witnesses, (4) practical problems associated with trying the case in the least expensive and most expeditious fashion, and (5) the interests of justice. Other factors include (1) the relative congestion in the courts of the two forums, (2) the public's ...


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