WildEarth Guardians et al v. United States Forest Service et al
Memorandum Opinion and ORDER. Defendants' Motion to Transfer 8 is GRANTED, and the case shall be transferred to the District of Wyoming. Plaintiffs' Motion for Leave to File Surreply 18 is DENIED, by Judge John L. Kane on 4/24/12.(lygsl, ) [Transferred from Colorado on 4/24/2012.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge John L. Kane
Civil Action No. 1:11-cv-03171-AP
POWDER RIVER BASIN RESOURCE COUNCIL, and
UNITED STATES FOREST SERVICE, a federal agency within the U.S. Department of
THOMAS TIDWELL, in his official capacity as Chief of the United States Forest Service,
MARIBETH GUSTAFSON, in her official capacity as the Acting Regional Forester of the
United States Forest Service, and
BRIAN FEREBEE,1 in his official capacity as the Deputy Regional Forester of the United
States Forest Service,
MEMORANDUM OPINION AND ORDER
WildEarth Guardians, Powder River Basin Resource Council, and Sierra Club brought
this action against the United States Forest Service, Chief Thomas Tidwell, Regional Forester
Maribeth Gustafson, and Deputy Regional Forester Brian Ferebee for allegedly violating several
environmental laws by approving a United States Bureau of Land Management (“BLM”) lease
for surface coal mining in the Thunder Basin National Grassland in eastern Wyoming.
Because Brian Ferebee has replaced Glen Casamassa as the Deputy Regional Forester
of the U.S. Forest Service, he replaces Mr. Casamassa as a defendant in this case. See Fed. R.
Civ. P. 25.
Defendants move to transfer this case to the District of Wyoming pursuant to 28 U.S.C. §
1404(a). Because Plaintiffs could have brought this action in the District of Wyoming and
considerations of convenience and the interest of justice weigh in favor of transfer, Defendants’
motion is GRANTED.2
In March 2010, the BLM issued its decision to lease 3,243 acres of federal coal located in
the Powder River Basin of Wyoming, known as the South Porcupine Tract. Of the South
Porcupine Tract’s total acreage, 1,638 acres are located within the Thunder Basin National
Grassland. Because the Forest Service has jurisdiction over the surface rights of this portion of
the South Porcupine Tract, the Forest Service is required to evaluate the proposed lease’s
Environmental Impact Statement (“EIS”), and then either approve or deny the proposed lease.
See 30 U.S.C. § 201(a)(3)(A)(iii).
Following this mandate, on July 14, 2011, a Wyoming-based Forest Supervisor issued
the Forest Service’s Record of Decision (“ROD”) approving the proposed lease within the
National Grassland. Plaintiffs timely filed an administrative appeal of the South Porcupine
ROD, and that appeal was ultimately denied by the Acting Regional Forester in the Rocky
Mountain Regional Office of the United States Forest Service in Golden, Colorado. There is no
dispute that the denial of the administrative appeal constitutes the final agency action giving rise
to the lawsuit currently before me.
The parties have fully briefed this motion, but Plaintiffs seek leave to file a surreply
addressing new factual allegations contained in Defendants’ reply. I have reviewed Plaintiffs’
motion and their proposed brief. Because their arguments have no bearing on my resolution of
this motion, Plaintiffs’ Motion for Leave to File Surreply (doc. 18) is DENIED.
In this suit, Plaintiffs allege that the Forest Service’s approval of the proposed leases
violated several environmental statutes. They seek a declaration that Defendants’ actions are in
violation of the Surface Mining Control and Reclamation Act (“SMCRA”), the National
Environmental Policy Act (“NEPA”), the National Forest Management Act (“NFMA”), 15
U.S.C. § 1600 et seq., and the Administrative Procedure Act (“APA”), and they request that I set
aside the challenged decision and enjoin any further action on the proposed lease until
Defendants have complied with their statutory obligations.
On February 2, 2012, Defendants filed a Motion to Transfer Venue (Doc. 6). Defendants
contend that, although venue is proper here, this case should be transferred to Wyoming pursuant
to 28 U.S.C. § 1404(a), because the case is properly venued in the District of Wyoming and
transferring venue would be in the interests of justice and the convenience of the parties and
JURISDICTION AND VENUE
Plaintiffs assert a variety of claims against the United States under NEPA, 42 U.S.C. §
4321 et seq., NFMA, 15 U.S.C. § 1600 et seq., SMCRA, 30 U.S.C. § 1201 et seq., and the APA,
5 U.S.C. § 701 et seq.. Accordingly, I have subject matter jurisdiction pursuant to both 28
U.S.C. § 1331 (federal question) and 28 U.S.C. § 1346 (United States as defendant).
Furthermore, because Defendant Brian Ferebee, the Deputy Regional Forester of the United
States Forest Service in the Rocky Mountain Regional Office in Golden, Colorado, resides
within this district, venue is proper under 28 U.S.C. § 1391(e)(1).
I am vested with broad discretion to transfer a case to a venue in which it could have
originally been brought if I find that such a transfer would be in the “interest of justice” and
“[f]or the convenience of parties and witnesses.” 28 U.S.C. § 1404(a). Any party, and even the
court sua sponte, can move for transfer of an action under § 1404(a). In this case, because
Defendants moved to have the case transferred pursuant to § 1404(a), they bear the burden of
establishing that transfer is proper. Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d
1509, 151 (10th Cir. 1991).
To meet this burden, Defendants must make two showings: (1) Defendants must establish
that Plaintiffs could have originally filed the suit in the proposed transferee district, the District
of Wyoming, Van Dusen v. Barrack, 376 U.S. 612, 622 (1964) (superseded by statute on other
grounds); and (2) Defendants must show that considerations of convenience and the interest of
justice weigh in favor of transfer to Wyoming, Chrysler Credit Corp., 982 F.2d at 1515.2 Unless
Defendants demonstrate that considerations of convenience and the interest of justice strongly
favor transfer to Wyoming, Plaintiffs’ choice of forum should not be disturbed absent
compelling circumstances. Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992). My balancing
of these interests is informed by, but not necessarily limited to, consideration of the following
factors: (1) Plaintiffs’ choice of forum; (2) the accessibility of witnesses and other sources of
proof; (3) the cost of making the necessary proof; (4) questions as to the enforceability of a
judgment if one is obtained; (5) relative advantages and obstacles to a fair trial; (6) difficulties
Plaintiffs convert this to a three-part inquiry, separating “considerations of
convenience” from “interests of justice.” Because the Chrysler factors pertain to both
considerations of convenience and the interest of justice, however, Defendants need not make
independent showings pertaining to each element.
that may arise from congested dockets; (7) the possibility of the existence of questions arising in
the area of conflict of laws; (8) the advantage of having a local court determine questions of
local law; and (9) all other considerations of a practical nature that make a trial easy,
expeditious, and economical. Chrysler Credit Corp., 928 F.2d at 1516.
As a threshold matter, it is uncontested that venue is proper in the District of Wyoming.
See 28 U.S.C. § 1391(e)(1). The lease that Plaintiffs challenge is located in the Thunder Basin
National Grassland, which lies entirely within the District of Wyoming, and the majority of
actions surrounding the challenged ROD occurred in Wyoming. Because “a substantial part of
the events or omissions giving rise to the claim occurred” within the District of Wyoming, it
would be a proper venue. Id. § 1391(e)(1)(B).
Having made this determination, I turn my attention to considering whether
considerations of convenience and the interest of justice weigh in favor of transfer to Wyoming.
Chrysler Credit Corp., 982 F.2d at 1515. In arguing whether this action should be transferred,
the parties focus on four factors: (1) Plaintiffs’ choice of forum; (2) difficulties that may arise
from congested dockets; (3) the advantage of having a local court determine questions of local
law; and (4) all other considerations of a practical nature that make a trial easy, expeditious, and
economical. I consider each in turn.
1.Plaintiffs’ Choice of Forum
As a general rule, a “plaintiff’s choice of forum should rarely be disturbed.” Scheidt, 956
F.2d at 965. Because Plaintiffs’ principal places of business are not located in Colorado and the
vast majority of the operative facts took place in Wyoming, however, Plaintiffs’ choice of forum
in entitled to little weight. E.g., Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153,
1168 (10th Cir. 2010). Thus, notwithstanding the fact that the final agency action took place in
Colorado, this factor weighs in favor of transfer.
2.Difficulties that May Arise from Congested Dockets
The parties in this case cite two statistical considerations relevant to evaluating the
relative congestions of court dockets: the number of pending cases per judge, and the time from
filing to disposition. See Emp’rs Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1169 (10th
The average number of filings per judge in the District of Wyoming is 245,
compared with 515 filings per judge in Colorado. U.S. Courts, Federal Management Statistics,
79, 86 (Sept. 2011), available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/Statistics
/FederalCourtManagementStatistics/2011/District FCMS Profiles September 2011.pdf&page=1.
The median time from filing to disposition of civil cases in Colorado is 5.7 months, but it is 8.6
months in Wyoming. Id. Although the average number of pending cases weighs in favor of
transfer, the time from filing to disposition does not. Accordingly, the relative congestion of the
dockets is a wash and has no sway in my analysis.
3.The Advantage of Having a Local Court Determine Questions of Local Law
It is axiomatic that “[t]here is a local interest in having localized controversies decided at
home.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). Accordingly, when a dispute arises
regarding a land management project that directly implicates the local economy, local regulatory
agencies, and the local environment, it is common for such a dispute to be heard in the
jurisdiction where the land is located. See, e.g., S. Utah Wilderness Alliance v. Norton, 315 F.
Supp. 2d 82, 88 (D.D.C. 2004) (“Land is a localized interest because its management directly
touches local citizens.”). When a land management project is of national significance, however,
it is not considered “an isolated, local environmental issue.” The Wilderness Soc’y v. Babbitt,
104 F. Supp. 2d 10, 13 (D.D.C. 2000). Accordingly, the national significance of a land
management project can offset a minimal local interest in a § 1404 analysis. Nat’l Ass’n of
Home Builders v. U.S. E.P.A. (“NAHB”), 675 F. Supp. 2d 173, 178 (D.D.C. 2009).
Plaintiffs argue that Defendants’ emphasis on the localized interest in this case is
misplaced. Plaintiffs contend that coal leasing in the Thunder Basin National Grassland is an
issue of regional and national significance, as coal from the Powder River Basin is transported
across the nation and its burning affects air quality across the nation. Although creative,
Plaintiffs’ argument ignores the nature of the local interest in the challenged agency action.
This is not a case in which the relevant agency action would not have any “major impact
on local economic, political and environmental interests.” NAHB, 675 F. Supp. 2d at 178. Not
only is local land involved in the leasing of the South Porcupine Tract, its management
particularly affects Wyoming citizens. The challenged project would have substantial impacts
on the local economy, and it is particularly relevant to the State of Wyoming given the State’s
regulatory involvement in the project. See Affidavit of Ryan M. Lance (Doc. 17-A) (explaining
that various Wyoming regulatory agencies will be involved in the management of the project).
Considered as a whole, the magnitude of these local interests weigh heavily in favor of transfer.
See Trout Unlimited, 994 F. Supp. 13, 17 (D.D.C. 1996) (transferring venue given “the impact
that . . . [the] action will have upon the affected lands, waters, wildlife and people of [the
4. Other Considerations of a Practical Nature
Finally, Plaintiffs argue the transfer will significantly inconvenience them. Specifically,
Plaintiffs argue that transfer would result in increased costs for Plaintiffs, and that transfer would
undermine representation by the University of Colorado School of Law’s Natural Resources
Clinic. These arguments are unconvincing. Although transfer may result in a $100 fee for pro
hac vice admittance in the District of Wyoming if Plaintiffs retain the same counsel, that fee is
not substantial enough to indicate that the transfer should not take place, especially when
compared with the localized interest in having the case adjudicated in Wyoming.
Furthermore, with respect to the student attorneys’ participation in this case, “the location
and convenience of counsel is not a relevant factor” in my analysis. See Bailey v. Union Pacific
R. Co., 364 F. Supp. 2d 1227, 1230 (D. Colo. 2005). Even if it was a relevant factor, the
students can seek pro hac vice status by seeking out an active member of the Wyoming State Bar
who would be willing to supervise their participation in this case. See Rules of the Supreme
Court of Wyoming Providing for Organization and Government of Bar Association and
Attorneys at Law of the State of Wyoming, Wyo. R. 12(b)(1), available at
For the foregoing reasons, Defendants have met their burden of establishing that
considerations of convenience and the interests of justice strongly favor transfer to the District of
Wyoming. Accordingly, Defendants’ Motion to Transfer (doc. 8) is GRANTED, and the case
shall be transferred to the District of Wyoming. Furthermore, Plaintiffs’ Motion for Leave to
File Surreply (doc. 18) is DENIED.
Dated: April 24, 2012
BY THE COURT:
s/John L. Kane
Senior U.S. District Court Judge