Mattwaoshshe v. Nextera Energy, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
JEREMY MATTWAOSHSHE, et al., )
Plaintiffs, )
)
v. )
) Case No. 20-cv-1317 (TSC)
UNITED STATES OF AMERICA, et al., )
Federal Defendants, )
)
and
)
NEXTERA ENERGY, INC., et al. )
)
)
MEMORANDUM OPINION
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 subsidiaries 1 (hereinafter “the
NextEra Defendants”), and Evergy Kansas 2 (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
1
NextEra’s subsidiaries include NextEra Energy Resources, LLC, NextEra Energy Constructors,
LLC, NextEra Energy Transmission Southwest, LLC, NextEra Energy Marketing, LLC, NextEra
Energy Operating Services, LLC, and NextEra Energy Project Management, LLC. See ECF
No. 18.
2
The Amended Complaint names “Westar Energy aka Evergy Kansas Central, Inc.” as a
Defendant. “Westar Energy” is not and has never been registered to do business in Kansas and
Evergy Kansas Central, Inc. (“Evergy”) does not have any subsidiaries by that name. Plaintiffs
attempted to serve the registered agent of Evergy, thus Evergy is responding to the Amended
Complaint and the court refers to Evergy where Plaintiffs refer to Westar Energy.
1
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.
I. BACKGROUND
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
2
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. §§ 796 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
3
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.
II. DISCUSSION
A. Federal Defendants
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
3
The Federal Defendants initially argued that any NEPA or ESA claims against FERC were not
ripe for review because they related to a “potential future interconnection order.” ECF No. 36-1
at 8. However, on February 16, 2021, they notified the court that Soldier Creek entered into a
FERC-approved standard interconnection agreement with a private nonprofit corporation,
Southwest Power Pool, Inc. ECF No. 55 at 2. Because the agreement fully conformed with the
FERC-approved standard interconnection agreement, Southwest Power Pool was required only
to report that it entered into that agreement in its quarterly report. Id. at 4. Accordingly, because
the Soldier Creek Project has already connected to the interstate electric grid, Plaintiffs’ NEPA
and ESA claims against FERC are ripe for review.
The Federal Defendants also argue that, due to the interconnection agreement, “Plaintiffs now
fail to state a claim against FERC because they are not alleging an action or inaction by the
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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.
1. Standard for Motion to Dismiss for Lack of Subject-Matter Jurisdiction
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 (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).
2. FERC and the FAA
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.
agency.” ECF No. 55 at 5. Having already concluded that it lacks jurisdiction, and because
Plaintiffs have not had the opportunity to respond to this argument, the court will not address it.
5
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 of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958)) (explaining
that the statutory review scheme in 16 U.S.C. § 825l “‘necessarily preclude[s] de novo litigation
between the parties of all issues inhering in the controversy, and all other modes of judicial
review,’ and that challenges brought in the district court outside that scheme are therefore
‘impermissible collateral attacks’” (emphasis supplied)); Pub. Util. Dist. No. 1 of Snohomish
Cty., Wash. v. FERC, 270 F. Supp. 2d 1, 5 (D.D.C. 2003) (discussing City of Tacoma, 357 U.S.
at 335–36) (explaining that judicial review of a Commission order and “all objections to the
order . . . must be made in the Court of Appeals or not at all” (emphasis supplied)).
Plaintiffs argue that because there is no FERC order to contest, this court has jurisdiction
to fashion relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq. See
ECF No. 44, Pls. Opp’n at 9–11. But the fact that Plaintiffs challenge inaction—i.e., the failure
6
to act in accordance with the agency’s obligations under NEPA and the ESA—does not compel a
different conclusion.
Plaintiffs cite no case law in support of their novel position that the court of appeals has
“no jurisdiction at all outside the confines of a substantive order or decision within FERC’s
Federal Power Act jurisdiction.” Id. at 11. Their argument also appears to be premised on a
misunderstanding of the court’s authority to review agency action under the APA. The APA is
not jurisdictional—that is, it does not grant this court jurisdiction to review agency action.
TRAC, 750 F.2d at 76–77 (citing Califano v. Sanders, 430 U.S. 99, 107 (1977)) (“[T]he APA
unquestionably does not confer an independent grant of jurisdiction.”). Rather, the APA acts as
a “waiver of sovereign immunity” for claims against federal agencies in certain circumstances.
Trudeau v. FTC, 456 F.3d 178, 186 (D.C. Cir. 2006). The distinction is not pedantic. This
court’s jurisdiction to review agency action falls under 28 U.S.C. § 1331, which gives district
courts original jurisdiction over questions of federal law. And the D.C. Circuit has made clear
that “a statute which vests jurisdiction in a particular court cuts off original jurisdiction in other
courts in all cases covered by that statute.” TRAC, 750 F.2d at 77. Thus, the APA does not
confer jurisdiction where there is otherwise none.
More fundamentally, Plaintiffs’ argument that the lack of agency action divests the court
of appeals of exclusive jurisdiction was rejected by the D.C. Circuit in TRAC. See TRAC, 750
F.2d at 75 (“Here . . . the lack of a final order is the very gravamen of the petitioners’ complaint.
This lack of finality, however, does not automatically preclude our jurisdiction.”). Where a
statute like the Federal Power Act “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
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exclusive review of the Court of Appeals.” Id.; see also id. at 78 (noting that “[w]here statutory
review is available in the Court of Appeals it will rarely be inadequate” to resolve a dispute).
To be sure, “[t]here may be a small category of cases in which the underlying claim is not
subject to the jurisdiction of the Court of Appeals (and thus adjudication of the claim in the
District Court will not affect any future statutory review authority of the Circuit Court).” Id. at
78. But Plaintiffs do not argue that their NEPA and ESA claims against FERC fall within this
narrow exception, nor could they, given that the claims arise directly from “the requirement to
seek approval under [] the Federal Power Act [] to interconnect [the Solder Creek Project] to the
national electric grid.” Am. Compl. ¶ 54. Because Plaintiffs’ claims challenge a FERC order (or
lack thereof), they fall within the exclusive jurisdiction bestowed upon the court of appeals by
the Federal Power Act. See Me. Council of the Atl. Salmon Fed. v. Nat’l Me. Fisheries Serv.,
858 F.3d 690, 693 (1st Cir. 2017) (Souter, J., sitting by designation) (“The Supreme Court has
made clear that the jurisdiction provided by [the Federal Power Act’s jurisdictional provision] is
‘exclusive,’ not only to review the terms of the specific FERC order, but over any issue ‘inhering
in the controversy.’”). Accordingly, this court lacks subject-matter jurisdiction over Plaintiffs’
claims against FERC.
The same is true with respect to the FAA. Like the Federal Power Act, 49 U.S.C.
§ 46110 is a “direct-review statute which vests exclusive jurisdiction in the courts of appeals for
review of . . . actions by” the Department of Transportation and the FAA. Nat’l Fed’n of the
Blind v. U.S. Dep’t of Transp., 78 F. Supp. 3d 407, 410 (D.D.C. 2015), aff’d, 827 F.3d 51 (D.C.
Cir. 2016). In § 46110, Congress specified that “a person disclosing a substantial interest in an
[FAA] order issued . . . in whole or in part under this part . . . may apply for review of the order
by filing a petition for review” in the courts of appeals. 49 U.S.C. § 46110(a). Congress further
8
provided that the jurisdiction of the court of appeals would be “exclusive.” Id. § 46110(c).
Thus, “section 46110(a)’s direct-review provision removes [a covered FAA order] from the
purview of the district court and places it within [the appellate court’s] exclusive jurisdiction.”
Nat’l Fed’n of the Blind, 827 F.3d at 57.
Plaintiffs claim that the FAA violated NEPA and the ESA in issuing a series of “no
hazard” determinations under 14 C.F.R. § 77.9. See Am. Compl. ¶¶ 35–51. The APA defines
“order” expansively as “the whole or a part of a final disposition, whether affirmative, negative,
injunctive, or declaratory in form, of an agency in a matter other than rulemaking but including
licensing.” 5 U.S.C. § 551(6). The D.C. Circuit has held that “[t]his definition plainly embraces
[a] ‘no hazard’ determination.” City of Rochester v. Bond, 603 F.2d 927, 933 (D.C. Cir. 1979);
see also City of Dania Beach v. FAA, 485 F.3d 1181, 1187 (D.C. Cir. 2007) (noting that the term
“order” in § 46110 should be read “expansively”). Thus, jurisdiction to review Plaintiffs’ claims
regarding the FAA’s no-hazard determinations lies exclusively with the courts of appeals and
those claims will therefore be dismissed for want of subject-matter jurisdiction.
To the extent Plaintiffs allege that the FAA failed to conduct required environmental
analysis outside the scope of the no-hazard determinations (which is unclear from the text of
their complaint), such claims would similarly fail for want of jurisdiction. Plaintiffs argue that
their claims against the FAA are removed from “any substantive order under the Federal
Aviation Act” and because § 46110 “conspicuously fails to provide for Court of Appeals review
of agency action withheld, especially withheld under NEPA or ESA,” this is an “APA case with
jurisdiction unmistakably founded in this District Court.” Pls. Opp’n at 12–13. But again, the
APA is not jurisdictional and certainly does not preclude APA review by the court of appeals.
And, as with the ‘no-action’ claims against FERC, the court fails to see how Plaintiffs’ claims
9
against the FAA could be disaggregated from the no-hazard determinations over which the court
of appeals has exclusive jurisdiction. These no-action claims are little more than a collateral
attack on the FAA’s decision to approve the Soldier Creek Project, a decision over which the
court of appeals has exclusive review. See Ctr. for Biological Diversity v. EPA, 847 F.3d 1075,
1089 (9th Cir. 2017) (finding that the district court did not have jurisdiction over an ESA failure-
to-consult claim that “inherently challenge[d] the validity” of a registration order over which the
court of appeals had exclusive jurisdiction).
Finally, Plaintiffs argue that this court has jurisdiction over claims against the FAA
because “evidence is taken in the district courts” and “the district court can make the whole
record” to determine compliance with NEPA and the ESA. Pls. Opp’n at 14. But the D.C.
Circuit previously dismissed this concern in TRAC, finding “untenable any suggestion that
appellate review of nonfinal agency action may be inadequate due to Courts of Appeals’ inability
to take evidence.” 750 F.2d at 78.
Thus, Plaintiffs claims against FERC and the FAA fall within the court of appeals’
exclusive jurisdiction and must be dismissed.
3. Army Corps of Engineers
Plaintiffs claim the Army Corps of Engineers violated the ESA in issuing permits which
allowed NextEra to transport heavy construction equipment over controlled waterways. Am.
Compl. ¶ 53. Specifically, they contend that the Army Corps of Engineers failed to adequately
consult with the Department of the Interior pursuant to 16 U.S.C. § 1536(a)(2) prior to issuing
the permits. Id.
Although Plaintiffs bring this challenge under the ESA’s citizen-suit provision at
16 U.S.C. § 1540(g), in order to maintain such a suit, Plaintiffs must comply with
10
§1540(g)(2)(A), which prohibits the filing of a citizen-suit “(i) prior to sixty days after written
notice of the violation has been given to the Secretary [of the Interior], and to any alleged
violator of any such provision or regulation” (emphasis added). Plaintiffs provided two letters,
ECF Nos. 44-2 and 44-3, to show they had complied with the ESA’s sixty-day notice
requirement. And while both letters are addressed to Secretary of the Interior, neither give notice
to the Army Corps of Engineers as the statute requires.
Acknowledging this procedural deficiency, Plaintiffs argue that the sixty-day requirement
should be waived under 16 U.S.C. § 1536(m), which states that the requirement “shall not apply
with respect to review of any final determination of the Committee under subsection (h) of this
section granting an exemption from the requirements of subsection (a)(2) of this section.”
16 U.S.C. § 1536(m). The waiver applies in the limited situation in which a plaintiff challenges
a decision by the Endangered Species Committee granting an exemption from the § 7
consultation requirements. It does not apply here, as the Endangered Species Committee did not
convene nor did it grant the Army Corps of Engineers an exemption from their § 7 consultation
requirements. Accordingly, Plaintiffs’ claims against the Army Corps of Engineers fail for lack
of jurisdiction. 4
4. Mandamus Claims
Lastly, Plaintiffs seek an order of mandamus directing the Department of Justice to
represent Plaintiff Mattwaoshshe and his tribe in this matter under §§ 174, 175, and 185 of Title
25 and under the American Indian Religious Freedom Act (“AIRFA”). Am. Compl. ¶ 60–65.
4
Plaintiffs also raise a NEPA claim against the Army Corps of Engineers, for the first time, in
their opposition brief. In their view, paragraph 53 of their Amended Complaint is “minimally
sufficient to satisfy the pleading requirements for a separate NEPA claim.” Pls. Opp’n at 19.
The court disagrees. That paragraph does not reference NEPA and the court will not permit
Plaintiffs to amend their complaint by way of an opposition brief.
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But neither Title 25 nor AIRFA impose a non-discretionary duty on the Department of Justice to
litigate on Plaintiffs’ behalf, and therefore Plaintiffs have failed to satisfy the mandamus statute’s
jurisdictional requirements.
Under 28 U.S.C. § 1361, a district court has “original jurisdiction of any action in the
nature of mandamus to compel an officer or employee of the United States or any agency thereof
to perform a duty owed to the plaintiff.” The D.C. Circuit has held that a “court may grant
mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear
duty to act; and (3) there is no other adequate remedy available to plaintiff.” Baptist Mem’l
Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) (citation omitted). If any of these three
requirements are not met, “a court must dismiss the case for lack of jurisdiction.” Lovitky v.
Trump, 949 F.3d 753, 759 (D.C. Cir. 2020).
There is nothing in the provisions Plaintiffs cite—25 U.S.C. §§ 174, 175, 185, or
AIRFA—that requires the United States to represent Plaintiffs in this case. Thus, Plaintiffs have
failed to demonstrate that the Department of Justice “has a clear duty to act.” Baptist Mem’l
Hosp., 603 F.3d at 62.
For instance, § 174 of Title 25 states that “[t]he President is authorized to exercise
general superintendence and care over any tribe or nation which was removed upon an exchange
of territory under authority of the act of May 28, 1830 . . . and to cause such tribe or nation to be
protected, at their new residence” (emphasis supplied). But this language does not impose a duty
on the Department of Justice to represent aggrieved Plaintiffs. And notwithstanding that § 175
provides that “[i]n all States and Territories where there are reservations or allotted Indians the
United States shall represent them in all suits at law and in equity,” the D.C. Circuit has found
that this provision “impose[s] only a discretionary duty of representation,” Pyramid Lake Paiute
12
Tribe of Indians v. Morton, 499 F.2d 1095, 1097 (D.C. Cir. 1974). See also Siniscal v. United
States, 208 F.2d 406, 410 (9th Cir. 1953) (explaining that § 175 “is not mandatory and that its
purpose is no more than to ensure the Indians adequate representation in suits to which they
might be parties”).
Plaintiffs reliance on § 185 fares no better. That section provides:
Whenever any Indian, being a member of any band or tribe with whom the
Government has or shall have entered into treaty stipulations . . . has had a portion
of the lands belonging to his tribe allotted to him in severalty . . . the agent and
superintendent of such tribe shall take such measures . . . as may be necessary to
protect such Indian in the quiet enjoyment of the lands so allotted to him.
25 U.S.C. § 185 (emphasis added). But like § 175, § 185 does not impose a duty on the
United States or its agents “to litigate all title problems which may be created by. . .
Indian[s] dealing with lands which . . . are subject to state law.’” Dillon v. Antler Land
Co., 341 F. Supp. 734, 742 (D. Mont. 1972), aff’d, 507 F.2d 940 (9th Cir. 1974). Further,
as with § 175, “an action brought by a competent plaintiff to enforce individual rights . . .
is not an action by the United States or the equivalent of an action by the United States.”
Id.
Because §§ 174, 175, and 185 do not compel the United States to represent Plaintiffs, the
court lacks jurisdiction to issue a writ of mandamus ordering the Department of Justice to
represent Plaintiffs under these sections of Title 25.
With respect to AIRFA, that statute provides:
On and after August 11, 1978, it shall be the policy of the United States to protect
and preserve for American Indians their inherent right of freedom to believe,
express, and exercise the traditional religions of the American Indian, Eskimo,
Aleut, and Native Hawaiians, including but not limited to access to sites, use and
possession of sacred objects, and the freedom to worship through ceremonials and
traditional rites.
13
42 U.S.C. § 1996. As the language indicates, AIRFA is a policy statement that does not
create a cause of action or any judicially enforceable individual rights. See, e.g., Lyng v.
Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 455 (1988) (“Nowhere in [AIRFA]
is there so much as a hint of any intent to create a cause of action or any judicially
enforceable individual rights.”). Accordingly, nothing in AIRFA requires the
Department of Justice to litigate Plaintiffs’ claims.
B. NextEra and Evergy
Defendants NextEra and Evergy seek dismissal for lack of personal jurisdiction pursuant
to Fed. R. Civ. P. 12(b)(2). See ECF Nos. 39, 40. The court agrees that dismissal of these claims
is appropriate.
A plaintiff bears the burden of establishing a basis for the exercise of personal
jurisdiction, Crane v. N.Y. Zoological Soc., 894 F.2d 454, 456 (D.C. Cir. 1990), by alleging
“specific acts connecting [the] defendant with the forum,” Second Amend. Found. v. U.S.
Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001) (alteration in original) (internal
quotation marks omitted). When evaluating a motion to dismiss for lack of personal jurisdiction,
the “court must resolve factual disputes in favor of the plaintiff.” Livnat v. Palestinian Auth.,
851 F.3d 45, 57 (D.C. Cir. 2017) (quoting Helmer v. Doletskaya, 393 F.3d 201, 209 (D.C. Cir.
2004)). However, a court need not “accept inferences drawn by plaintiffs if such inferences are
unsupported by the facts.” Id. (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276
(D.C. Cir. 1994)).
Where a defendant does not reside in the forum—which Plaintiffs concede as to NextEra
and Evergy—the plaintiff must show that specific personal jurisdiction exists. See Bristol-Myers
Squibb Co. v. Super. Ct. of Cal., 137 S. Ct. 1773, 1780 (2017). In this district, personal
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jurisdiction is governed by the District of Columbia’s long-arm statute, D.C. Code § 13–423,
which provides specific jurisdiction over claims “arising from” the defendant’s:
(1) transacting any business in the District of Columbia;
(2) contracting to supply services in the District of Columbia;
(3) causing tortious injury in the District of Columbia by an act or omission in the
District of Columbia;
(4) causing tortious injury in the District of Columbia by an act or omission outside
the District of Columbia if he regularly does or solicits business, engages in any
other persistent course of conduct, or derives substantial revenue from goods used
or consumed, or services rendered, in the District of Columbia.
D.C. Code § 13–423(a). The requirement that the claims “arise from” one of these actions is
interpreted flexibly as “relat[ing] to” or “having a substantial connection with” and that “at a
minimum . . . the claim raised must have a discernible relationship to the defendant’s business
transacted in the district.” Alkanani v. Aegis Def. Servs., LLC, 976 F. Supp. 2d 13, 27 (D.D.C.
2014) (internal quotation marks omitted).
Plaintiffs claim the court has specific jurisdiction over NextEra because Plaintiffs’ claims
arise out of business transacted in the District of Columbia—specifically, lobbying efforts and
energy sales. As for Evergy, Plaintiffs appear to argue that their claims arise out of Evergy’s
transportation of energy from the Soldier Creek Project into the District of Columbia, or in the
alternative, that there is personal jurisdiction over NextEra, and that Evergy and NextEra are co-
conspirators. The court disagrees and concludes it lacks specific personal jurisdiction over either
Defendant.
1. NextEra 5
Plaintiffs argue that NextEra’s business is subsidized by the United States government
and therefore NextEra must have transacted business in the District of Columbia to have
5
The court’s analysis in this section applies with equal force to all the NextEra defendants.
15
qualified for those subsidies. See Am. Compl. ¶ 13. The court has already rejected this
argument and Plaintiffs have supplied nothing to alter its prior analysis. Plaintiffs identify no
specific actions NextEra has taken in the District of Columbia that led to the receipt of
government subsidies, such as meetings with government officials. Rather, they ask the court to
infer that government subsidies were the result of such transactions. See id. ¶ 6. Putting aside
whether this is a reasonable inference, the court has already held that such lobbying transactions
would fall under the well-established “government contacts” exception and would not be a basis
to assert personal jurisdiction. See ECF No. 28 at 4; see also Richards v. Duke Univ., 480 F.
Supp. 2d 222, 230 (D.D.C. 2007) (finding that government relations and lobbying connections
fall within the “government connections” exception to the District of Columbia’s long-arm
statute) (citing Naartex Consulting Corp. v. Watt, 722 F.2d 779, 787 (D.C. Cir. 1983)); Savage v.
Bioport, Inc., 460 F. Supp. 2d 55, 62 (D.D.C. 2006) (holding that lobbying efforts to secure a
government contract could not establish personal jurisdiction). 6
Plaintiffs also argue that NextEra transacted business in the District of Columbia by
virtue of its subsidiary NextEra Energy Resources LLC, which “is a direct and substantive player
in the District of Columbia wholesale and retail energy market,” Am. Compl. ¶ 11d, and that “the
electricity market revenue generated in D.C. also allowed it to build a nuisance in Kansas,” Pls.
Opp’n at 7. Even if true, Plaintiff has failed to demonstrate how the subsidiary’s “extensive,
daily business presence and activity in the District of Columbia,” Am. Compl. ¶ 11d, or how
energy sales to District residents, have a discernable relationship with the tort claims Plaintiffs
6
Plaintiffs argue that the government contacts exception unconstitutionally deprives them of
their First Amendment right to petition the government. Pls. Opp’n at 26. But the government
contacts exception simply establishes where a plaintiff may avail themselves of the judicial
system, not whether they may do so.
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assert, which occurred in Kansas. Energy sales in the District of Columbia would demonstrate
that NextEra had transacted business in this forum, but the long-arm statute requires more—the
conduct that gives rise to a suit must arise from the transactions. And the claims arising from the
Solider Creek Project in Kansas have no substantial connection or discernable relationship to
energy sales in the District of Columbia. Indeed, Plaintiffs’ interpretation of the D.C. long-arm
statute would render the term “arises from” so broad as to be meaningless.
Finally, Plaintiffs contend that “discovery will establish personal jurisdiction,” and
“would uncover the details of very extensive federal policy and oversight interactions” by
NextEra in the District of Columbia. ECF No. 25 at 10. But Plaintiffs do not proffer how such
jurisdictional discovery could establish personal jurisdiction.
While discovery under the Federal Rules of Civil Procedure is to be “broad in scope and
freely permitted,” Naartex, 722 F.2d at 788, a court can deny discovery if it cannot determine
“what facts additional discovery could produce that would affect [the] jurisdictional analysis,”
Erwin-Simpson v. AirAsia Berhad, 985 F.3d 883, 892 (D.C. Cir. 2021). A plaintiff must
“demonstrate that it can supplement its jurisdictional allegations through discovery” to be
entitled to jurisdictional discovery. Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638
F. Supp. 2d 1, 11 (D.D.C. 2009). Here, Plaintiffs’ theory of discovery is based on speculation
that discovery would reveal acts falling within the government contacts exemption. This is an
insufficient basis for jurisdictional discovery.
2. Evergy
As with their claims against NextEra, Plaintiffs’ claims against Evergy do not arise from
alleged injuries suffered in the District of Columbia—their claims target Evergy’s activities in
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Kansas. Evergy does not even conduct business or supply services directly to the District of
Columbia.
Plaintiffs’ arguments to the contrary are unpersuasive. They argue that Evergy has
“agreed to purchase and [] transport the electricity produced from the project” to the national
grid, which services the District of Columbia. Am. Compl. ¶ 7. This does not meet the long-arm
statute’s requirement that the conduct at issue arises from business activity within the District of
Columbia.
Plaintiffs also attempt—without success—to tether their claims against Evergy to
NextEra, which, as discussed above, has a subsidiary that supplies electricity to the District of
Columbia. Plaintiffs claim that Evergy “is a cooperating partner with the Nextera Defendants in
[an] actionable scheme to circumvent federal statutory duties and responsibilities and to transport
into interstate commerce the ill-gotten proceeds from their unlawful conduct” involving clean
energy and related credits. Pls. Opp’n at 35. They further contend that Evergy “has conspired
with Nextera Defendants . . . to transport the ‘clean energy’ and the selling of carbon and clean
energy credits outside of Kansas and eventually into the District of Columbia,” all while
circumventing “the federal oversight scheme among D.C. based federal agencies.” Id. at 36.
Even assuming all these facts are true, the court has already held that the claims against
NextEra do not have enough of a connection to the District of Columbia to establish long-arm
jurisdiction. And to the extent Plaintiffs attempt to plead a conspiracy, they have failed to
identify “an overt act by a co-conspirator within the forum, subject to the long-arm statute, and in
furtherance of the conspiracy.” Globe Metallurgical, Inc. v. Rima Indus. S.A., 177 F. Supp. 3d
317, 323 (D.D.C. 2016) (setting forth the requirements for a court to exercise personal
jurisdiction over a non-resident co-conspirator under the so-called ‘conspiracy theory’ of
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jurisdiction). Furthermore, Plaintiffs’ argument amounts to little more than “bald speculation”
that Evergy and NextEra are engaged in a conspiracy, and is “insufficient to establish jurisdiction
under a conspiracy theory.” Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020,
1031 (D.C. Cir. 1997).
Thus, the court is unable to exercise specific personal jurisdiction over Evergy and its
motion to dismiss pursuant to Rule 12(b)(2) must be granted.
C. Soldier Creek
Defendant Soldier Creek, which has consented to personal jurisdiction, seeks dismissal of
Plaintiffs’ negligence and nuisance claims pursuant to Fed. R. Civ. P. 12(b)(1) on the basis that
the claims fail to meet Article III’s standing and ripeness requirements. Specifically, they argue
that Plaintiffs have not suffered an injury in fact. ECF No. 38-1 at 7. The court disagrees.
Nevertheless, having already determined that the claims against the Federal Defendants ought to
be dismissed, the court declines to exercise supplemental jurisdiction over Plaintiffs’ Kansas-
state law claims against Soldier Creek.
1. Standing and Ripeness
Federal courts are vested with the power of judicial review extending only to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. Courts have, in interpreting this limitation on judicial
power, “developed a series of principles termed ‘justiciability doctrines,’ among which are
standing ripeness, mootness, and the political question doctrine.” Nat’l Treasury Emps. Union v.
United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996). In order to bring a claim, a Plaintiff must
establish both standing and ripeness. Lujan, 504 U.S. at 560 (“[T]he core component of standing
is an essential and unchanging part of the case-or-controversy requirement of Article III.”);
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Exxon Mobil Corp. v. FERC, 501 F.3d 204, 208 (D.C. Cir. 2007) (“[R]ipeness goes to our
subject-matter jurisdiction.”).
To have standing, a plaintiff must establish that they have suffered an “injury in fact.”
Lujan, 504 U.S. at 560. An injury in fact must be both “concrete and particularized” and “actual
or imminent, not conjectural or hypothetical.” Id. Allegations of future injury can establish
injury in fact if the injury is “certainly impending” and not merely possible. Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 409 (2013). There is no injury in fact if the theory of future injury
relies on “a highly attenuated chain of possibilities.” Id. at 410.
To show constitutional ripeness “the plaintiff must establish constitutional minima akin
to that of standing by showing an injury-in-fact.” Oregonians for Floodplain Prot. v. U.S. Dep’t
of Commerce, 334 F. Supp. 3d 66, 73 (D.D.C. 2018). Ripeness “shares the constitutional
requirement of standing that an injury in fact be certainly impending.” Nat’l Treasury Emps.
Union, 101 F.3d at 1427. Where a plaintiff seeks prospective declaratory and injunctive relief, it
“must establish an ongoing or future injury that is ‘certainly impending’” and it cannot “rest on
past injury.” Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016).
Plaintiffs have suffered an injury in fact and their claims are ripe. When Plaintiffs filed
their complaint, the wind turbines at issue were still under construction, but the Soldier Creek
Project is now fully operational. See ECF No. 54. Plaintiffs allege that the operation and
presence of the wind turbines will interfere with the use and enjoyment of their properties
through “incessant noise, vibrations, shadow flicker and strobe lighting.” Am. Compl. ¶¶ 74, 83.
This is a concrete and particularized injury. That these effects will occur, or are occurring, is a
material factual allegation that the court must accept as true when resolving a 12(b)(1) motion.
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For this same reason, Plaintiffs’ claims are ripe for review—the injury they claim is certainly
impending, if not presently occurring.
2. Supplemental Jurisdiction
Although standing and ripeness are necessary to establish subject-matter jurisdiction, that
is not where the inquiry ends. Federal courts have subject-matter jurisdiction under the grant of
federal-question jurisdiction in 28 U.S.C. § 1331, or diversity jurisdiction in 28 U.S.C. § 1332.
However, the supplemental jurisdiction statute, 28 U.S.C. § 1367, confers on the district courts,
“in any civil action of which the district courts have original jurisdiction . . . supplemental
jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.” 28 U.S.C. § 1367(a). “The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3).
Plaintiffs seek to tie their Kansas state law claims against the Corporate Defendants to
their federal law claims against the Federal Defendants by invoking the court’s supplemental
jurisdiction pursuant to 28 U.S.C. § 1367(a). See Am. Compl. ¶ 5 (claiming that the state law
claims are part of the same “case and controversy” as the claims against the Federal Defendants).
But because the court will dismiss all the federal question claims, it must decide whether to
exercise supplemental jurisdiction over Plaintiffs’ remaining Kansas tort claims pursuant to
28 U.S.C. § 1367(c). It declines to do so.
A court should consider “judicial economy, convenience, fairness, and comity” when
determining whether to exercise supplemental jurisdiction. Carnegie–Mellon Univ. v. Cohill,
484 U.S. 343, 350 n. 7 (1988). Moreover, “in the usual case in which all federal-law claims are
21
eliminated before trial, the balance of factors to be considered . . . will point toward declining to
exercise jurisdiction over the remaining state-law claims.” Id. The Supreme Court has held that
“[n]eedless decisions of state law should be avoided both as a matter of comity and to promote
justice between the parties.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 726
(1966). The view has been echoed by the D.C. Circuit. See e.g., Shekoyan v. Sibley Int’l, 409
F.3d 414, 424 (D.C. Cir. 2005) (finding no abuse of discretion when the district court declined
supplemental jurisdiction after all federal claims had been dismissed).
Given the early stage of these proceedings and the fact that discovery has not yet taken
place, it is not overly inconvenient nor unfair to the parties to decline supplemental jurisdiction.
See Turpin v. Ray, 319 F. Supp. 3d 191, 206 (D.D.C. 2018) (finding it was not unfair to the
parties to decline supplemental jurisdiction when discovery had not yet taken place). As these
claims concern Kansas law, both comity and judicial economy suggest the claims can be dealt
with more appropriately and more efficiently in Kansas state court. See Pollard v. District of
Columbia, 191 F. Supp. 3d 58, 82–83 (D.D.C. 2016), aff’d, 698 F. App’x 616 (D.C. Cir. 2017)
(weighing familiarity with District of Columbia tort law in declining supplemental jurisdiction);
see also Runnymede-Piper v. District of Columbia, 952 F. Supp. 2d 52, 61 (D.D.C. 2013)
(“[T]he District of Columbia Superior Court would naturally have greater familiarity and interest
in the issues that remain.”). In short, there is no reason to think of this as anything other than the
“usual case” in which supplemental jurisdiction should be declined.
Plaintiffs argue that the court should exercise supplemental jurisdiction because the state
law claims do not raise novel or complex issues of state law and it would be possible to apply
Kansas law without difficulty. Pls. Opp’n at 32–33. However, “judicial economy is not the only
relevant factor” a court should consider, Shekoyan, 409 F.3d at 424, and this fact alone certainly
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does not outweigh the rest of the court’s analysis. The court will decline supplemental
jurisdiction. 7
As the court no longer has jurisdiction over the claims before it, there is no reason to
address Soldier Creek’s 12(b)(6) motion to dismiss for failure to state a claim.
III. CONCLUSION
For the foregoing reasons, the Federal Defendants’ motion to dismiss will be GRANTED
and all claims against the Federal Defendants will be DISMISSED for lack of subject-matter
jurisdiction. Likewise, Defendants NextEra and Evergy’s motions to dismiss will be GRANTED
and the claims against those defendants will be DISMISSED for lack of personal jurisdiction.
As there are no longer any claims over which this court has original jurisdiction, the court will
DECLINE to exercise supplemental jurisdiction over the remaining state law claims against
Defendant Soldier Creek. Accordingly, the claims against Defendant Soldier Creek will be
DISMISSED without prejudice. The court will issue an accompanying order.
Date: August 17, 2021
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
7
Plaintiffs state that if the court declines supplemental jurisdiction over their Kansas claims, they
can amend to state diversity jurisdiction. Pls. Opp’n at 31–32. There is no need for the court to
address that possibility now. However, Plaintiffs should note that a court may “transfer [an]
action to any other district where it could have been brought” for “the convenience of parties and
witnesses, in the interest of justice.” 28 U.S.C. § 1404(a); see also Pinson v. U.S. Dep’t of Just.,
74 F. Supp. 3d 283, 291 (D.D.C. 2014) (“Regardless of whether venue is proper, courts retain
discretion to transfer a claim to another district.”).
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