The opinion of the court was delivered by: Jeffrey S. White United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR IMPROPER VENUE OR TO TRANSFER
Now before the Court is Defendants' motion to dismiss for improper venue or to transfer. This motion is fully briefed and ripe for decision. The Court finds this motion is suitable for disposition without oral argument. See N.D. Civ. L.R. 7-1(b). Accordingly, the hearing set for April 24, 2009, is VACATED. Having carefully considered the parties' arguments and the relevant legal authority, the Court hereby GRANTS Defendants' motion to remand to dismiss for improper venue or to transfer.*fn1
In this action, plaintiffs Center for Biological Diversity, Sierra Club, and California Wilderness Coalition (collectively, "Plaintiffs") challenge the United States Bureau of Land Management's adoption of the Coachella Valley Plan amendment to the California Desert Conservation Area ("CDCA") Plan. Plaintiffs contend that defendants United States Bureau of Land Management, the Secretary of the Interior, Ken L. Salazar, acting in his official capacity, and the Fish and Wildlife Service (collectively, "Defendants") did not comply with the Federal Land Policy and Management Act ("FLPMA"), 43 U.S.C. §§ 1701-1785, Executive Orders, the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321, et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 107-706.
The Coachella Valley Plan governs a range of real property issues, including access to public and private lands, rights of way and easements across these lands, land withdrawals, and land exchanges and acquisitions. The Coachella Valley Plan area contains nearly 1.2 million acres of land of which 330, 416 acres are subject to the management of United States Bureau of Land Management. Plaintiffs challenge, in particular, the decisions regarding the use and maintenance of Dunn Road in the Coachella Valley Plan. (Compl., ¶ 2.)
Defendants move to dismiss this action for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1391(e) or, in the alternative, to transfer this case to the United States District Court for the Central District of California pursuant to 28 U.S.C. § 1404(a).
B. Applicable Legal Standards
Defendants move to dismiss this action based on improper venue. Venue is proper in an action against an agency of the United States or an officer or employee of the United States acting in his official capacity in any judicial district in which (1) the defendant resides, (2) a substantial part of the events or omissions giving rise to the claim occurred or a substantial part of the property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. 28 U.S.C. § 1391(e). If venue is improper, a district court has discretion to either dismiss the action, or in the interest of justice, transfer the action to a district in which it could have been brought. 28 U.S.C. § 1406(a).
Plaintiffs rely on § 1391(e)(3) to establish venue because two of the three Plaintiffs reside in the Northern District of California. Plaintiffs' residency is not in dispute. What is in dispute is whether real property is involved in this action. The Ninth Circuit has not addressed the meaning of "real property" in § 1391(e)(3). The court in Ferguson v. Lieurance, 565 F. Supp. 1013 (D. Nev. 1983) addressed the meaning of the term "real property." The court held that "an action involves real property if is a suit involving the protection or recovery of real property or an estate therein." Id. at 1015. Moreover, the touchstone for applying this provision of § 1391 "cannot sensibly be whether real property is marginally affected by the case at issue. Rather the action must center directly on the real property, as with actions concerning the right, title or interest in real property." Id. (quoting Natural Resource Defense Council v. TVA, 340 F. Supp. 400, 406 (S.D.N.Y. 1971)). In the complaint before the court, the plaintiff alleged that the Bureau of Land Management improperly rejected his oil and gas lease applications. In finding that the action involved real property, the court reasoned that:
The proposition that an action for declaratory relief to hold void and unenforceable any statutes, rules, regulations or practices which prescribe essential preliminary steps or procedures to initiate entry on the public lands of the United States under the public land laws is not an action involving real property is a legal sophistry. The obvious and undeniable purpose of such an action is to place the public officials in a position which will require them to accept applications, issue permits, grant entry, or whatever, to the end that plaintiff will acquire the real property interest he seeks. Such an action does involve real property.
The Court finds the cases Plaintiffs rely on are not persuasive. In Santa Fe International Corp. v. Watt, 580 F. Supp. 27 (D. Del. 1984), the plaintiffs were challenging the validity of an order involving 380 oil and gas leases. The administrative order denied the plaintiffs, who were corporations "ultimately owned" by a Kuwaiti corporation owned by the sovereign nation of Kuwait, the right to continue to participate in the leases which were located throughout the United States. Id. at 28. The order that the plaintiffs challenged held that the laws, customs or regulations of Kuwait deny similar privileges to citizens of United States, and thus, that citizens of Kuwait may not own interests in petroleum leases or permits issued under the Mineral Lands Leasing Act of 1920. Id. The Court recognized that the pivotal issue in the case was the validity of the federal agency's determination regarding the alien qualification provision of the Mineral Lands Leasing Act. Id. at 30. Resolution of this issue only required expertise in administrative law and perhaps foreign law and did not involve questions of a peculiarly local nature or knowledge of state or federal mineral rights law. Id. Therefore, the court found that the case was "divorced from any substantial concern relating to the leasing of particular local lands." Id. at 31. Accordingly, under those circumstances, the court held that real property was only tangentially involved. Id.
The court in Ashley v. Andrus, 474 F. Supp. 495 (E.D. Wis. 1979), employed similar reasoning. In that case, the Bureau of Land Management determined that an oil and gas lease awarded through a lottery was invalid because the applicant had died before the lottery was conducted. Id. at 496. The applicant's widow, who would have inherited the oil and gas lease if it were valid, was ...