Western Watersheds Project et al v. Schneider et al

Filing 188

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED, that the motion to dismiss or, in the alternative to sever and transfer (docket no. 164 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT,
WILDEARTH GUARDIANS, CENTER
FOR BIOLOGICAL DIVERSITY, and
PRAIRIE HILLS AUDUBON SOCIETY,
Plaintiffs,

Case No. 1:16-CV-83-BLW
MEMORANDUM DECISION
AND ORDER

v.
JANICE SCHNEIDER, Assistant
Secretary of Interior; BUREAU OF LAND
MANAGEMENT; and U.S. FOREST
SERVICE,
Defendants.
INTRODUCTION
The Court has before it the Government’s motion to dismiss, or in the
alternative to transfer, for improper venue. The motion is fully briefed and at
issue. For the reasons explained below, the Court will deny the motion.
ANALYSIS
The original complaint in this case was brought by four different
environmental groups challenging fifteen Environmental Impact Statements (EISs)
issued in 2015 that govern land covering ten western states. The gist of plaintiffs’
lawsuit was that the BLM and Forest Service artificially minimized the harms to
sage grouse by segmenting their analysis into 15 sub-regions without conducting
Memorandum Decision & Order – page 1

any range-wide evaluation – the agencies looked at the trees without looking at the
forest, so to speak. The plaintiffs brought their claims under the National
Environmental Policy Act (NEPA), the Federal Land Policy and Management Act
(FLPMA), and the National Forest Management Act (NFMA).
Early in the case, the BLM filed a motion to sever and transfer arguing that,
for example, the challenge to the Utah Plan should be transferred to Utah and the
challenge to the Nevada Plan should be transferred to Nevada. The Court denied
the motion, reasoning that “plaintiffs made overarching claims that applied to each
EIS and RMP and required a range-wide evaluation that extended beyond the
boundaries of any particular court.” See Memorandum Decision (Dkt. No. 86).
As this litigation was underway, the Trump Administration came into office
and began a process to review and revise the 2015 Sage-Grouse Plans. This
litigation was put on hold pending that review. In 2017 that review was
completed, and as a result, WWP alleges, Interior Secretary Ryan Zinke directed
agencies to relax restrictions on oil and gas development in sage grouse habitat.
The BLM responded by issuing amendments to the Sage Grouse Plans (referred to
as the 2019 Amendments). Plaintiffs supplemented their complaint to challenge
the BLM’s 2019 Amendments, alleging that the agency – acting at the direction of
the Trump Administration – again made common errors across numerous Plans,

Memorandum Decision & Order – page 2

including (1) failing to take a range-wide analysis, (2) failing to evaluate climate
change impacts, and (3) generally removing protections for the sage grouse.
The Utah and Wyoming intervenors responded by filing a motion to transfer,
arguing that the circumstances have changed since the Court denied the BLM’s
motion discussed above. 1 The intervenors argued that the interests of justice and
the interests of local concerns justified transferring, for example, the Utah Plan
challenges to Utah and the Wyoming Plan challenges to Wyoming. The
intervenors argued that the challenges in this case are Plan-specific and will be
unique to each State.
The Court disagreed and denied their motions. See Memorandum Decision
(Dkt. No. 181). The Court reasoned that their motions ignored the allegations of
plaintiffs’ complaint. Plaintiffs allege that the challenged Plans suffer from
common failings that did not result entirely from errors of local Field Offices but
rather were heavily influenced by directions from the Trump Administration and
the Interior Secretary. Transferring these cases to various States would require
plaintiffs to make duplicative arguments and courts to render duplicative – and
perhaps conflicting – decisions. The Court did not agree with intervenors that

1

The Idaho intervenors joined in the motions, arguing that the Court can more effectively focus
on issues unique to Idaho if the other matters are severed and transferred to their respective States.
Memorandum Decision & Order – page 3

circumstances have changed since the Court denied the Government’s earlier
motion to sever and transfer.
Much of the Government’s motion contains arguments identical to those
raised by the Utah and Wyoming intervenors and rejected by this Court. The Court
will not repeat its analysis but will simply incorporate it by reference and deny
those portions of the Government’s motion.
The remaining issue is whether this Court is the proper venue for resolving
plaintiffs’ supplemental claims challenging the 2019 BLM Plan Amendments. The
venue statute allows a plaintiff naming federal defendants to bring suit in “any
judicial district in which . . . (3) the plaintiff resides if no real property is involved
in the action.” See 28 U.S.C. § 1391(e)(1)(C). It is undisputed that plaintiff WWP
“resides” in the District of Idaho because it is incorporated and headquartered in
Idaho, so venue is proper here under subsection (C) unless “real property is
involved” within the meaning of the statute.
This Court has previously interpreted § 1391(e)(1)(C) to mean that “real
property” is not “involved” in a lawsuit challenging an agency’s compliance with
NEPA and FLPMA. See WWP v Salazar, 2009 WL 1299626 (D.Id. May 7, 2009)
(Salazar I). The Government responded in the Salazar I case by seeking
reconsideration based on the then-recently issued opinion in Center for Biological
Diversity v. BLM, 2009 WL 1025606 (N.D. Cal. 2009) (CBD), but the Court
Memorandum Decision & Order – page 4

denied that motion as well. See Order (Dkt. No. 58 in CV-08-516-BLW). The
Court later reaffirmed Salazar I in a separate case. See WWP v. Salazar, 2010 WL
375003 (D.Id. Jan. 25, 2010) (Salazar II), reconsidered on other grounds, 2011
WL 4431813 (D. Id. Sep. 22, 2011). Just two months ago, the Court reconfirmed
its rulings in Salazar I & II. See WWP v. Interior Board of Land Appeals, 2019
WL 3877302 (D.Id. Aug. 16, 2019).
The Government asks the Court to revisit its prior decisions, and offers
legislative history in the form of a letter from then-Deputy Attorney General Byron
White observing that “[t]he principal demand for this proposed legislation comes
from those who wish to seek review of decisions relating to public lands, such as
the awarding of oil and gas leases, consideration of land patent applications and the
granting of grazing rights or other interests in the public domain . . . and it would
be unwise to have the Secretary sued in Maine with respect to an oil and gas lease
in Wyoming.” See S. Rep. No. 87-1992, at 6 (1962), as reprinted in 1962
U.S.C.C.A.N. 2784, 2789.
It certainly would be “unwise” to set venue in a court that had nothing to do
with the controversy, such as a court in Maine resolving a dispute over a Wyoming
lease. That is precisely what Justice White was trying to avoid and the final
version of the statute was apparently intended to accommodate his concern because
its language is close to his recommendation. But his concern – and that of the
Memorandum Decision & Order – page 5

statute – does not apply here where this Court is not distant from the geographical
location of the dispute but is actually right in the middle of it.
The Government does not cite any Ninth Circuit cases in support of its
position but once again cites the holding of CBD that challenges to a BLM land use
plan brought under NEPA, FLPMA and the ESA did “involve real property” under
the statute. CBD at 2009 WL 1025606 (N.D. Cal. 2009). But more persuasive is
another decision from the Northern District of California issued about five years
after CBD. See Earth Island v. Quinn, 56 F.Supp. 3d 1110 (N.D. Cal. 2014). In
Earth Island, environmental groups claimed the Forest Service failed to comply
with NEPA and NFMA in approving salvage logging of fire-killed trees. In
holding that the action did not involve real property under the venue statute, the
court held as follows:
[B]y using the legal term ‘real property,’ rather than allowing venue
whenever ‘the action relates to a particular area of land,’ Congress
seems to have indicated that it intended mainly to cover disputes over
legal interests in real property. . . . Most authority appears to have
followed that logic, generally finding that actions “involve real
property” when they involve disputes over real property interests—
and perhaps not even then if the real property dispute is peripheral to
the central cause of action. See Wright, Miller & Cooper, 14D Fed.
Prac. & Proc. Juris. § 3815, n. 33 (4th ed.) (citing cases)
Id. at 1115-16. The decision goes on to cite with approval language from NRDC v.
TVA¸340 F.Supp. 400 (S.D.N.Y. 1971) concerning the predecessor statute to
§ 1391(e)(1)(C):
Memorandum Decision & Order – page 6

Gravity being what it is, the vast bulk of human activities take place
on the face of the earth. Consequently, almost any dispute over public
or private decisions will in some way “involve real property,” taken
literally. The touchstone for applying § 1391(e)(4) 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. at 406. The Court finds persuasive the rationale of NRDC and of Earth Island.
This action does not involve the right, title or interest in real property and does not
threaten to place venue in a court far distant from the geographical location of the
dispute. Instead, this lawsuit challenges an agency’s compliance with statutory
mandates. Because “real property” is not “involved” as those terms are used in the
venue statute, the Court finds that venue is proper here under § 1391(e)(1)(C).
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to dismiss
or, in the alternative to sever and transfer (docket no. 164) is DENIED.

DATED: October 2, 2019
_________________________
B. Lynn Winmill
U.S. District Court Judge

Memorandum Decision & Order – page 7