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Western Watersheds Project v. Bernhardt

United States District Court, D. Idaho

July 9, 2019

DAVID BERNHARDT, Secretary of Interior; and UNITED STATES BUREAU OF LAND MANAGEMENT, an agency of the United States, Defendants, STATE OF WYOMING; WESTERN ENERGY ALLIANCE; and JONAH ENERGY LLC, Defendant-Intervenors.



         Pending before the Court are the following motions: (1) Defendant-Intervenor Jonah Energy LLC's Motion to Dismiss or in the Alternative to Transfer (Dkt. 96); (2) Defendant-Intervenor State of Wyoming's Motion to Dismiss or in the Alternative to Transfer (Dkt. 97); (3) Federal Defendants' Motion to Dismiss for Improper Venue or, in the Alternative, to Sever and Transfer (Dkt. 99); and (4) Defendant-Intervenor Western Energy Alliance's Motion to Dismiss (Dkt. 100). 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

         The Court has previously described the general contours of this case. See (Dkts. 54, 66, 74, 111). Plaintiffs Western Watersheds Project (“WWP”) and Center for Biological Diversity (“CBD”) (collectively “Plaintiffs” or “WWP”) allege that agency actions of the Department of Interior unlawfully promote and expedite oil and gas leasing on public lands and “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”).” First Am. Compl., ¶ 1 (Dkt. 78). Plaintiffs contend that certain national policy directives and oil and gas leasing and development approvals “systematically disregard the 2015 Sage-Grouse Plan Amendments and ignore cumulative adverse effects to sage-grouse across the Interior West.” Pls.' Resp. to Mots. to Dismiss, p. 1 (Dkt. 106).

         One such “agency action” is the Normally Pressured Lance Natural Gas Development Project (“NPL Project”). Defendant-Intervenor Jonah Energy LLC (“Jonah”) is the proponent of the NPL Project and sought Bureau of Land Management (“BLM”) approval to conduct full-field development of natural gas and condensate resources from existing state and federal oil and gas leases in an area wholly within Sublette County, Wyoming.[1] See Mem. ISO Mot. to Interv., p. 2 (Dkt. 85-1). Jonah owns the leasing comprising the NPL Project area which is located on lands and minerals administered by the BLM (135, 655 surface acres or 96.3% of the NPL Project area), the State of Wyoming (5, 123 surface acres or 3.6% of the NPL Project area), and private lands (81 acres or 0.06% of the NPL Project area) in Sublette County. See id. The BLM issued its Record of Decision for the NPL Project (“ROD”) on August 27, 2018, allowing Jonah to submit sit-specific applications for natural gas drilling and related development on federal lands within the NPL Project area - specifically, Jonah can submit applications for permits to drill and related rights-of-way for as many as 3, 500 natural gas wells, associated infrastructure, and ancillary facilities, resulting in up to 350 wells site-specifically approved per year during the NPL Project's approximate 10-year development period. See id. at pp. 2-3.

         The First Amended Complaint (1) specifically added the NPL Project in the “Final Actions” collectively challenged in the First, Second, and Third Claims for Relief, [2] and (2) added a new Seventh Claim for Relief alleging that the NPL's Final Environmental Impact Statement (“FEIS”) and ROD were deficient under FLPMA, NEPA, and the APA. See First Am. Compl., ¶¶ 1a, 12, 122, 225mm-225mmm, 332-343 (Dkt. 78). Plaintiffs seek to reverse and remand the BLM decisions reflected by the FEIS and ROD for the NPL Project. See id. at p. 121.

         Jonah, Defendant-Intervenors State of Wyoming (“Wyoming”) and Western Energy Alliance (“WEA”), and Defendants David Bernhardt and the BLM (collectively “Federal Defendants”) move under FRCP 12(b)(3) to dismiss Plaintiffs' claims challenging the NPL Project, arguing that venue is not proper in this District under 28 U.S.C. § 1391(e). Alternatively, they request that Plaintiffs' NPL Project claims be severed and transferred to the District of Wyoming under FRCP 21 and 28 U.S.C. § 1404(a).


         At the outset, Jonah, Wyoming, the Federal Defendants, and WEA move to dismiss Plaintiffs' NPL Project-related claims for improper venue pursuant to FRCP 12(b)(3). Once challenged, a plaintiff bears the burden of showing that venue is proper in the instant forum. See Schenck v. Motorcycle Accessory Warehouse, Inc., 2007 WL 1138915, *1 (D. Idaho 2007) (citing Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979)); see also, e.g., 14D Wright & Miller, Federal Practice & Procedure § 3808 (4th ed.) (in actions with multiple claims, plaintiff must show that venue is proper for each claim). If a plaintiff sues in a district in which venue is not proper, the court will (upon timely motion) dismiss the action for improper venue, or transfer the case to any district where it could have been brought “if it be in the interest of justice.” 28 U.S.C. § 1406(a).

         A lawsuit against an officer or employee of the United States or a federal agency 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). WWP resides in Idaho; hence, venue is proper in this District under § 1391(e)(1)(C) if no “real property” is involved with regard to Plaintiffs' claims concerning the NPL Project - that is, no Defendant resides in Idaho under § 1391(e)(1)(A), and it cannot be said that a substantial part of the events/omissions giving rise to Plaintiffs' NPL-related claims occurred in Idaho, or that a substantial part of the NPL Project area that is the subject of Plaintiffs' claims is situated in Idaho under § 1391(e)(1)(B).

         The Court has previously considered venue motions in this case, specifically whether Plaintiffs' (still ongoing) dispute over the way oil and gas lease sales are handled on public lands involves real property under § 1391(e)(1)(C). The Court ruled that such a challenge did not “relate to matters of right, title, and interest” and thus did not implicate real property for venue purposes. See 9/4/18 MDO, p. 10 n.7 (Dkt. 66) (citing WWP v. Salazar, 2009 WL 1299626, *2 (D. Idaho 2009)). Without conceding the point, Jonah, Wyoming, the Federal Defendants, and WEA now argue that Plaintiffs' recent challenge to the NPL Project is distinguishable. The Plaintiffs' NPL claim, they argue, centers on real property because it involves only the BLM's approval of a discrete oil and gas development project located entirely in Wyoming. See Jonah's Mem. ISO Mot. to Dismiss, pp. 6-8 (Dkt. 96-1); Wyoming's Mem. ISO Mot. to Dismiss, p. 13 (Dkt. 97-1); Fed. Defs.' Mem. ISO Mot. to Dismiss, pp. 5-9 (Dkt. 99-1); WEA's Mot. to Dismiss (Dkt. 100) (joinder). Plaintiffs disagree, responding that their claims relative to the NPL Project are independent of and will not adjudicate Jonah's right or title to any underlying mineral leases; instead, they seek to ensure that the BLM complies with its NEPA and FLPMA obligations in managing oil and gas development/operations in the NPL Project area. See Pls.' Resp. to Mots. to Dismiss, pp. 6-12 (Dkt. 106).

         Untangling these arguments is not a straightforward exercise. Though there is a difference between Plaintiffs' claims surrounding the NPL Project on the one hand and those speaking to the BLM's oil and gas leasing policy on public lands affecting sage-grouse habitat/populations on the other hand (see infra), whether the former claims involve real property as contemplated by § 1391(e)(1)(C) is not obvious. Regardless, a definitive answer is not required here, because the Court must decide whether to transfer Plaintiffs' NPL Project-related claims even if the claims do not involve real property. In other words, even if venue is proper in the District of Idaho, the Court must still take up the requests made by Jonah, Wyoming, the Federal Defendants, and WEA to sever the claims under FRCP 21 and transfer them to Wyoming federal court under 28 U.S.C. § 1404(a). And, even if venue is improper in the District of Idaho, the Court would consider, as an alternative to dismissal, whether the NPL claims should be transferred under 28 U.S.C. § 1406(a) to any district in which they could have been brought “if it be in the interest of justice.” Whether claims are dismissed or transferred under § 1406(a) is discretionary, but generally transfer is preferred over dismissal, recognizing that “[t]he ‘interest of justice' language acts as a limitation on transfer.” Reilly v. Levin, 2015 WL 13236640, *8 (D. Idaho 2015) (citing Minnette v. Time Warner, 997 F.2d 1023, 1026-27 (2d Cir. 1993); Nichols v. G.D. Searle & Co., 991 F.2d 1195, 1201 (4th Cir. 1993)).

         For the reasons described below, the Court concludes that Plaintiffs' claims over the NPL Project should be transferred to Wyoming federal court. Therefore, the Court does not speak to the propriety of asserting such claims in this District in the first instance - that question need not be answered considering the other factors at play.

         A. Plaintiffs' NPL Project Claims Are Severed

         Severance is a preliminary procedural step in cases where a court intends to transfer only a part of a larger action. Because 28 U.S.C. § 1404(a) “authorizes the transfer only of an entire action and not of individual claims, ” a court may properly sever certain claims, create “two or more separate ‘actions, '” and then “transfer certain of such separate actions while retaining jurisdiction of others.” Wyndham Assocs. v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968); see also 7 Wright & Miller, Federal Practice & Procedure § 1689 (3rd ed.) (“Even when venue is proper as to all defendants, the court may sever a claim against a party and transfer it to a more convenient forum or sever an unrelated claim and give it separate treatment when doing so would be in the interest of some or all of the parties.”).

         Even when different claims are otherwise properly joined in a single case, a trial court has the authority to sever “any claim against a party.” Fed.R.Civ.P. 21. There is broad discretion in deciding whether to sever claims that are “discrete and separate, ” but a court will abuse its discretion if the severance separates an otherwise “essentially unitary problem.” Rice v. Sunrise Express, Inc., 209 F.3d 1008, 1016 (7th Cir. 2000)); see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1297 (9th Cir. 2000) (noting that district courts “possess broad discretion . . . to make a decision granting severance.”); 7 Wright & Miller, Federal Practice & Procedure § 1689 (3rd ed.) (“Questions of severance are addressed to the broad discretion of the district court.”).

         Hence, “[p]articular claims may be severed from the main action and proceeded with separately, where the asserted right to relief does not arise out of or relate to the same transaction or occurrence or there is no question of law or fact common to the parties.” Green Meadows Partners LLP v. Tomkinson, 2006 WL 6885989, *1 (C.D. Cal. 2006) (internal quotation marks and citations omitted). Even where the claims are based on the same transaction or occurrence and involve common legal and factual questions, the court still may sever claims for purposes of convenience, to avoid prejudice, or to promote the expeditious resolution of the litigation. See Ferger v. C.H. Robinson Worldwide, Inc., 2006 WL 2091015, *1 (W.D. Wash. 2006).

         Federal Defendants[3] argue that “[s]everance of the NPL Project claim is appropriate because that claim relates specifically to a discrete oil and gas project in Wyoming and therefore is factually and legally distinct from Plaintiffs' other claims . . . . Unlike the other claims, the NPL Project claim is a challenge to a distinct project based on specific allegations regarding the planning and NEPA process for that project.” Fed. Defs.' Mem. ISO Mot. to Dismiss, p. 11 (Dkt. 99-1). Plaintiffs counter that, despite the NPL Project's existence, common questions of law and fact predominate between it and the lease sale claims. See Pls.' Resp. to Mots. to Dismiss, pp. 12-13 (Dkt. 106) (“[I]n approving each lease sale or development project, including NPL, BLM failed to heed the ‘prioritization' directive under the 2015 Sage-Grouse Plan Amendments, in violation of FLPMA and the APA (Claim One); failed to follow the best available sage-grouse science, in violation of FLPMA and the APA (Claim Two); and failed to study cumulative effects of oil and gas development on sage-grouse or reasonable management alternatives, in violation of NEPA and the APA ...

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