                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA


                                 )
STOCKBRIDGE-MUNSEE COMMUNITY,    )
                                 )
               Plaintiff,        )
                                 ) Civil Action No. 08-1031 (EGS)
               v.                )
                                 )
UNITED STATES OF                 )
AMERICA, et al.,                 )
                                 )
               Defendants.       )
                                 )


                         MEMORANDUM OPINION


     Plaintiff, the Stockbridge-Munsee Community, Band of Mohican

Indians (“the Stockbridge-Munsee” or “Plaintiff”), challenges the

Department of Interior’s (“Interior”) May 23, 2008 decision to

take certain lands located in New York into trust for the benefit

of another tribe, the Oneida Indian Nation of New York.

Plaintiff also names the Secretary of Interior and the Associate

Deputy Secretary of Interior, in their official capacities, as

Defendants (collectively, with Interior, “Defendants”).

Plaintiff argues that some of the land Defendants seek to take

into trust is within the historical boundaries of Stockbridge-

Munsee tribal land.   Plaintiff seeks both declaratory and

injunctive relief to set aside Interior’s decision under the

Administrative Procedure Act (“APA”).   Defendants seek to

transfer the case to the Northern District of New York where six

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other challenges to the same administrative action are pending.

Upon consideration of Defendants’ Motion, Plaintiff’s Opposition,

Defendants’ Reply, the applicable case law, the entire record

herein, and for the reasons discussed below, this Court GRANTS

Defendants’ Motion to Transfer Venue and to Suspend Obligation to

Answer in the District Court.



I.    BACKGROUND

      The United States can acquire and take land into trust for

the benefit of individual Indians and tribes, pursuant to “the

authorities, policy, and procedures” of 25 C.F.R. § 151.

Interior, the agency empowered to take lands into trust under the

regulations, must notify the state and local governments having

jurisdiction over the land to be acquired.   Id. § 151.10.

Interior must also consider the potential impact of the

acquisition on regulatory jurisdiction and real estate taxes.

Id.   When Interior places land into trust, the placement preempts

state and local regulation of the use of the land.   See Act of

May 25, 1926, ch. 379, 44 Stat. 629 (formerly codified at 43

U.S.C. §§ 733-736 (1975)); 25 U.S.C. § 465; 43 C.F.R. § 2564.4;

25 C.F.R. §§ 1.4, 152.22.

      In the 1970s, the Oneida Nation filed a lawsuit claiming

that certain lands were improperly taken from the Nation by the

state of New York.   See, e.g., Oneida Indian Nation of N.Y. v.


                                 2
Oneida County, 414 U.S. 661 (1974).    In 1986, the Stockbridge-

Munsee filed a land claim in the Northern District of New York

against the state, surrounding counties, and the New York Highway

Department.   See Stockbridge-Munsee Cmty. v. New York, No. 86-

1140 (N.D.N.Y. filed Oct. 15, 1986).    The Oneida Nation

intervened in the Stockbridge-Munsee suit, claiming an interest

in the land at issue.   The Stockbridge-Munsee filed an amended

complaint in 2004, arguing that the land it challenged was never

part of an Oneida reservation.

     After the U.S. Supreme Court ruled that the Oneida Nation

could not unilaterally assert tribal immunity over land it

recently acquired in the City of Oneida, New York, see City of

Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 220-21

(2005), the Oneida Nation petitioned Interior to acquire title to

approximately 17,370 acres of real property in trust for the

Oneida Nation.   The land spans Madison and Oneida counties in the

north-westerly part of the state of New York.

     In accordance with the regulatory scheme of the National

Environmental Policy Act, 42 U.S.C. § 432 et seq., Interior

consulted with the state of New York and the local governments,

and reviewed the comments received by the Stockbridge-Munsee.      On

May 23, 2008, Interior issued a decision taking approximately

13,000 acres into trust for the Oneida Nation.




                                 3
     The Stockbridge-Munsee Community is an Indian tribe

recognized by the United States.       On June 17, 2008, the

Stockbridge-Munsee filed a Complaint with this Court naming the

United States, Interior, Dirk Kempthorne, as Secretary of

Interior, and James S. Cason, as Associate Deputy Secretary of

Interior, in their official capacities, respectively.       Plaintiffs

filed an Amended Complaint on July 21, 2008.       In the suit,

Plaintiff seeks review of Interior’s May 23, 2008 decision to

take land in trust for the Oneida Nation.       Six other cases have

been filed in the Northern District of New York, claiming that

Interior’s decision was arbitrary and capricious in contravention

of the APA.   See Cent. N.Y. Fair Bus. Ass’n v. Kempthorne, No.

08-660 (N.D.N.Y. filed June 21, 2008); Niagra Mohawk Power Corp.

v. Kempthorne, No. 08-649 (N.D.N.Y. filed June 20, 2008); City of

Oneida v. Kempthorne, No. 08-648 (N.D.N.Y. filed June 19, 2008);

Town of Verona v. Kempthorne, No. 08-647 (N.D.N.Y. filed June 19,

2008); New York v. Kempthorne, No. 08-644 (N.D.N.Y. filed June

19, 2008); Upstate Citizens for Equality, Inc. v. United States,

No. 08-633 (N.D.N.Y. filed June 16, 2008).

     The Stockbridge-Munsee seek relief under the APA, 5 U.S.C.

§§ 702, 706; the Indian Non-Intercourse Act, 25 U.S.C. § 177;

federal common law; the 1788 Treaty of Fort Schuyler and the

February 25, 1789 New York implementing statute; and the 1798

Treaty of Canandaigua, 7 Stat. 44.       The instant suit alleges that


                                   4
Defendants, inter alia, failed to consider whether the land

acquisition would extinguish Stockbridge-Munsee property or

treaty rights.     Defendants filed this motion on August 28, 2008.



II.   DISCUSSION

      The Defendants have moved this Court to transfer this case

to the United States District Court for the Northern District of

New York under 28 U.S.C. § 1404(a).    The statute provides as

follows:

      For 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.

The threshold question for this Court is whether this case could

have been brought in the Northern District of New York.      See

Shawnee Tribe v. United States, 298 F. Supp. 2d 21, 23 (D.D.C.

2002).   “A civil action wherein jurisdiction is not founded

solely on diversity of citizenship may . . . be brought . . . in

a judicial district in which . . . a substantial part of property

that is the subject of the action is situated.”    28 U.S.C. §

1391(b)(2).   As the land at issue is situated in the Northern

District of New York, the Stockbridge-Munsee concedes that the

case could have been brought there.

      This Court has the discretion to grant the motion to

transfer.   See Shawnee Tribe, 298 F. Supp. 2d at 23.    “The Court

must balance a number of ‘case-specific’ factors when determining

                                   5
whether or not transfer of the case is appropriate.”    Id.

(quoting Stewart v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

Defendants acknowledge that they carry the burden of showing that

the balances of factors warrant transfer.    See Citizen Advocates

for Responsible Expansion v. Dole, 561 F. Supp. 1238, 1239

(D.D.C. 1983).

     This Court has articulated a list of private and public

factors to be weighed when considering the transfer of a case.

In Shawnee Tribe, this Court said:

     The private interest considerations include: (1) the
     plaintiff’s choice of forum, unless the balance of
     convenience is strongly in favor of the defendants; (2)
     the defendant’s choice of forum; (3) whether the claim
     arose elsewhere; (4) the convenience of the parties;
     (5) the convenience of the witnesses of the plaintiff
     and defendant, but only to the extent that the
     witnesses may actually be unavailable for trial in one
     of the fora; (6) the ease of access to sources of
     proof.

     The public interest considerations include: (1) the
     transferee’s familiarity with the governing laws; (2)
     the relative congestion of the calendars of the
     potential transferee and transferor courts; (3) the
     local interest in deciding local controversies at home.

298 F. Supp. 2d at 24 (citing Trust Unlimited v. U.S. Dep’t of
Agric., 944 F. Suppp. 13, 17 (D.D.C. 1996)).

     A.   Private-Interests Considerations

     The “plaintiff’s choice of forum is afforded great

deference, and is a ‘paramount consideration’ in any

determination of a motion to transfer.   However, that choice is

conferred less deference by the court when a plaintiff’s choice


                                 6
of forum is not the plaintiff’s home forum.”     Id. (internal

citations omitted); see also Citizen Advocates, 561 F. Supp. at

1239.   The Stockbridge-Munsee’s home forum is Wisconsin.

Defendants’ choice of forum, given other pending actions dealing

with the same land dispute and the same administrative decision,

is the Northern District of New York.    Like in Shawnee Tribe,

Plaintiff argues that events giving rise to this suit occurred in

Washington and that the case should be heard here.       298 F. Supp.

2d at 25.     “[M]ere involvement,” however, “on the part of federal

agencies, or some federal officials who are located in

Washington, D.C. is not determinative.”     Id. at 26.    Though the

administrative action at issue in this case arose in Washington,

“the only real connection [the] lawsuit has to the District of

Columbia is that a federal agency headquarted here . . . is

charged with generally regulating and overseeing the

[administrative] process.”     DeLoach v. Philip Morris Co., Inc.,

132 F. Supp. 2d 22, 25 (D.D.C. 2000).    As the D.C. Circuit noted

in Cameron v. Thornburgh, 983 F.2d 253 (D.C. Cir. 1993):

     Courts in this circuit must examine challenges to
     personal jurisdiction and venue carefully to guard
     against the danger that a plaintiff might manufacture
     venue in the District of Columbia. By naming high
     government officials as defendants, a plaintiff could
     bring a suit here that properly should be pursued
     elsewhere.

Id. at 256.




                                   7
     Defendants note that they are facing six challenges to

Interior’s land-into-trust decision in the Northern District of

New York, and that it would be more convenient for them to defend

the same decision in one forum.   Plaintiff argues that because

Interior has assigned this challenge to a different section

within the Department than the one that is handling the other

cases, this should lessen any inconvenience to Defendants.

Defendants counter, however, that Interior’s positions amongst

the different sections will be coordinated.   Plaintiff and

Defendants agree that this case is to be decided based on the

administrative record; therefore, convenience to witnesses is a

non-factor.   Given that APA challenges are limited to the

administrative record compiled by the agency, see Fla. Power &

Light Co. v. Lorian, 470 U.S. 729, 744 (1985), neither does “the

ease of access to sources of proof” constrain the Court from

transferring the case, Shawnee Tribe, 298 F. Supp. 2d at 24.      The

administrative record here is the same as the one in all six

cases pending in the Northern District of New York.

     The Court concludes that the private-interest considerations

favor transfer.   Having evaluated the private interests, the

Court must still consider the public-interest considerations.

     B.   Public-Interest Considerations

     Defendants note that the Northern District of New York and

the Second Circuit have considerable experience with land


                                  8
disputes in New York.   All six actions that were filed as a

result of Interior’s decision in May 2008 have been assigned to

the same judge; the Stockbridge-Munsee action filed in 1986 has

also been assigned to the very same judge.   Furthermore, the

Stockbridge-Munsee filed an action in the Northern District of

New York for a preliminary injunction challenging the land-into-

trust decision.   See Stockbrige-Munsee Cmty. v. New York, No. 08-

1140 (N.D.N.Y filed June 24, 2008).   Although the preliminary

injunction challenge was subsequently withdrawn, Plaintiff does

not dispute that the Northern District of New York has particular

expertise in adjudicating land disputes involving Indian tribes

and the U.S. Government.   Neither side has made any contention

that the transferring of this case to the Northern District of

New York will congest that court’s calendar, and therefore this

Court does not consider that factor in its analysis.

     Transferring this case to the Northern District of New York

will also avoid inconsistent results and waste of judicial

resources.   See Ledyard v. United States, 1995 WL 908244, at *2

(D.D.C. 1995) (“The action here and that in [New York] seek

review of the same administrative decision and present similar

claims and demands for relief.   If this case were transferred to

[New York], the cases could be consolidated, thus saving expense

to the public and avoiding the duplicative use of judicial

resources.”) (citation and footnote omitted).   The fact is, this


                                 9
case, and the six other cases cited above, all challenge the same

administrative decision.    See Cont’l Grain Co. v. FBL-585, 364

U.S. 20, 26 (1960) (“a situation in which two cases involving

precisely the same issues are simultaneously pending in different

District Courts leads to the wastefulness of time, energy and

money that § 1404(a) was designed to prevent”).    The issues here

clearly overlap with the cases before the Northern District of

New York, even if the cases technically are seeking different

relief.    See Martin-Trigona v. Meister, 668 F. Supp. 1, 3 (D.D.C.

1987) (“The interests of justice are better served when a case is

transferred to the district where related actions are pending.”).

The public-interest considerations, likewise, weigh in favor of

transfer.



III.    CONCLUSION

        In balancing the factors in this case, it is in the

interest of justice that this case should be transferred to the

Northern District of New York.    Defendants’ Motion to Transfer

Venue and to Suspend Obligation to Answer in the District Court

is GRANTED.    An appropriate Order accompanies this Memorandum

Opinion.

       SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            January 5, 2009

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