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Western Watersheds Project v. Zinke

United States District Court, D. Idaho

September 4, 2018

RYAN K. ZINKE, Secretary of Interior; DAVID BERNHARDT, Deputy Secretary of Interior; and UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States, Defendants, and STATE OF WYOMING; WESTERN ENGERGY ALLIANCE Defendant-Intervenors.


          Ronald E. Bush Chief U.S. Magistrate Judge

         Pending before the Court are: (1) Defendants' Motion to Sever and Transfer (Dkt. 12); (2) Defendants' Motion for Expedited Consideration of Motion to Sever and Transfer (Dkt. 33); (3) Plaintiffs' Motion for Leave to File Surreply Brief Opposing Motion to Sever and Transfer (Dkt. 38); and (4) Intervenor Western Energy Alliance's Motion for Leave to File Sur-Reply to Motion to Sever and Transfer (Dkt. 59). Having carefully considered the record, participated in oral argument, and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:

         I. BACKGROUND

         Broadly speaking, this case challenges the Trump Administration's allegedly unlawful actions to promote and expedite oil and gas leasing on public lands (or managed by the United States) that, according to Plaintiffs Western Watersheds Project (“WWP”) and Center for Biological Diversity (“CBD”) (collectively “Plaintiffs” or “WWP”), “will adversely impact essential habitats and populations across the range of the greater sage-grouse . . ., and violate bedrock environmental laws including the Federal Land Policy and Management Act (“FLPMA”), the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”). Compl., ¶ 1 (Dkt. 1). More specifically, WWP alleges that Defendants Ryan Zinke, David Berhnhardt, and the United States Bureau of Land Management (“BLM”) (collectively “Federal Defendants”) have issued a series of orders, reports, and directives that effectively disregard previously-understood/followed protections for sage-grouse populations, while limiting opportunities for public involvement during the oil and gas leasing process - materializing in eight “final” BLM oil and gas lease sales (three in Montana, one in Utah, and four in Wyoming) that collectively impact sage-grouse habitats. See id. at ¶¶ 1-14, 73-225. WWP challenges these leasing actions as violating the 2015 Sage-Grouse Plan Amendments to BLM Resource Management Plans, FLPMA, NEPA, and the APA. See id. at ¶¶ 276-307. WWP additionally challenges two recent BLM “Instruction Memoranda” (“IMs”) that WWP claims revised BLM oil and gas leasing and development policies without any public procedures (notice and comment) or environmental review - (1) IM 2018-026, which overrides the “prioritization” requirement of the 2015 Sage-Grouse Plan Amendments (prioritizing oil and gas leasing outside of sage-grouse habitat); and (2) IM 2018-034, which avoids environmental analysis of oil and gas leasing and development decisions, while limiting public notice and involvement in those decisions. See id. at ¶¶ 98-112.

         Federal Defendants and Defendant-Intervenor State of Wyoming (“Wyoming”) now seek to sever and transfer the pending action from this Court (in Idaho) to federal district courts in which subject lands are located (outside the District of Idaho). Specifically, they ask for a transfer of challenges to the lease sales in Montana, Utah, and Wyoming to the Districts of Montana, Utah, and Wyoming, respectively. See generally Fed. Defs.' Mem. in Supp. of Mot. to Sever & Transfer (“MST”) (Dkt. 12-1); Wyoming's Proposed Resp. to Defs.' MST (Dkt. 24).[1]They also argue (at least originally) that WWP's challenges to IM 2018-026 and IM 2018-034 should be transferred to the District of Columbia because the decision-making processes for those IMs occurred in that district and have nation-wide application.[2]


         Under Federal Rule of Civil Procedure 21, Federal Defendants ask the Court to cut WWP's claims into separate parts, organized primarily by the geographic footprints of the eight challenged oil and gas leases. See Fed. Defs.' Mem. in Supp. of MST, pp. 6, 8-10 (“The Court should sever Plaintiffs' claims relating to the challenged lease sales in Montana, Utah, and Wyoming into three separate actions because they relate to separate lease sales in three different states.”). Then, Federal Defendants seek to transfer the “severed” claims to a federal district court in the state where the lease issued, pursuant to 28 U.S.C. § 1404. See id. at pp. 6-8, 10-20 (“Should the Court agree that severance is appropriate, it should do so in an order that also transfers the claims to the judicial districts where the land that is the subject of each lease sale is located . . . .”).[3] The relief sought would uproot the pending case originally brought in the District of Idaho and transplant it piecemeal elsewhere.

         The propriety of using Rule 21 to entirely dismantle the pending case through hydra-like transfers (as opposed to, for example, severing a single claim or party, with the remainder of the action proceeding along) is not addressed here. See, e.g., Pls.' Opp. to MST, pp. 9-12 (Dkt. 25) (disputing Federal Defendants' ability to sever claims via Rule 21, stating: “The Court is not broadly authorized under Rule 21 to effectively rewrite Plaintiffs' claims and then sever them all, even though they are properly presented.”). Rather, Federal Defendants' Motion to Sever and Transfer fails because transfer is inappropriate regardless.

         A. Legal Standard: Motions to Transfer

         The frame of the Court's discretion in dealing with the pending motions is found initially in the general venue statute: “For the convenience of the 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). The statute allows for such a transfer “to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quotations omitted). The party seeking the transfer bears the burden of demonstrating that the transferee district is a “more appropriate forum.” See Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000). District courts have broad discretion to transfer cases on a case-by-case basis, considering the factors of convenience and fairness. See Ventress v. Japan Airlines, 486 F.3d 1111, 1118 (9thCir. 2007).

         Two steps are involved in the § 1404(a) analysis. First, the court decides whether “the transferee district was one in which the action might have been brought by the plaintiff.” Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960) (quotations omitted); Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). If the answer is yes, then the second step calls for an individualized, case-specific, analysis of convenience and fairness to the parties and witnesses, and an assessment of the interests of justice. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quotations omitted); Jones, 211 F.3d at 498-99. The latter step typically assesses these factors: (1) convenience of the parties and witnesses; (2) familiarity of each forum with the applicable law; (3) the plaintiff's choice of forum; (4) contacts of the different parties with the forum; (5) local interest in the controversy; (6) the ease of access to sources of proof and evidence; and (7) relative congestion in each forum. See Jones, 211 F.3d at 498-99 (citations omitted).

         B. On Balance, Having Considered all the Factors, Transfer is Not Warranted

         1. Step One: Where the Action Might Have Been Brought

         “In determining whether an action ‘might have been brought' in a district, the court looks to whether the action initially could have been commenced in that district.” Hatch, 758 F.2d at 414. As is the case here, a civil action in which a defendant is an officer or employee of the United States or any agency thereof may be brought in any judicial district in which “(A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (C) the plaintiff resides if no real property is involved in the action.” 28 U.S.C. § 1391(e)(1) (A-C).

         It is not contested that venue is improper in the District of Idaho under 28 U.S.C. § 1391(e).[4] Rather, Federal Defendants contend that this lawsuit - or more precisely, the pieces of the lawsuit - are more appropriately contested in some other federal court or courts. Of course, the starting point to that argument is that the action must be one that could have been brought in a transferee district in the first instance. The answer to that question is not so clear as Federal Defendants would contend.

         Relying on language found in 28 U.S.C. § 1391(e)(1), Federal Defendants argue in relevant part:

Transferring claims related to each lease sale to the district in which the parcels are located meets both prongs (A) and (B) [of 28 U.S.C. § 1391(e)] because BLM has offices in each district, the decision-making process occurred in the district where the parcels are located, and the property subject to each sale is located in each of these districts . . . . With regard to 28 U.S.C. § 1391(e)(1)(A), officers and agencies of the United States can have more than one residence. For purposes of this litigation, BLM is a ...

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