Western Watersheds Project et al v. Zinke et al

Filing 150

MEMORANDUM DECISION AND ORDER. It is hereby ORDERED that (1) Jonah's Motion toDismiss or in the Alternative to Transfer (Dkt. 96 ); (2) 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) WEA's Motion to Dismiss (Dkt. 100 ) are GRANTED, in part, and DENIED, in part, as follows: 1. Plaintiffs' NPL Claims are not dismissed . In this respect, the above motions are DENIED. 2. Plaintiffs' NPL Claims are severed from this case pursuant to FRCP 21 and transferred to the District of Wyoming pursuant to 28 U.S.C. § 1404(a). In this respect, theabove motions are GRAN TED. The Clerk shall transfer Plaintiffs' NPL Claims as represented broadly by Plaintiffs' Seventh Claim for Relief (see supra at p. 8, n.4) to the United States District Court for theDistrict of Wyoming. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

WESTERN WATERSHEDS PROJECT; and
CENTER FOR BIOLOGICAL DIVERSITY,
Plaintiffs,
vs.
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.

Case No.: 1:18-cv-00187-REB
MEMORANDUM DECISION AND
ORDER RE:
DEFENDANT-INTERVENOR JONAH
ENNERGY LLC’S MOTION TO DISMISS
OR IN THE ALTERNATIVE TO
TRANSFER
(Docket No. 96)
DEFENDANT-INTERVENOR STATE OF
WYOMING’S MOTION TO DISMISS OR
IN THE ALTERNATIVE TO TRANSFER
(Docket No. 97)
FEDERAL DEFENDANTS’ MOTION TO
DISMISS FOR IMPROPER VENUE OR,
IN THE ALTERNATIVE TO SEVER AND
TRANSFER
(Docket No. 99)
DEFENDANT-INTERVENOR WESTERN
ENERGY ALLIANCE’S MOTION TO
DISMISS
(Docket No. 100)

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) DefendantIntervenor 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:

MEMORANDUM DECISION AND ORDER - 1

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 fullfield 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

1

Sublette County is a sparsely populated county in west-central Wyoming. Its county
seat is Pinedale.
MEMORANDUM DECISION AND ORDER - 2

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).
II. DISCUSSION
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

2

The BLM’s August 27, 2018 ROD formally approved the NPL Project, prompting the
transition of the NPL Project from the group of “Pending Actions” referenced in Plaintiffs’
original Complaint to the group of “Final Actions” challenged in Plaintiffs’ First Amended
Complaint. Compare generally Compl. (Dkt. 1), with First Am. Compl. (Dkt. 78).
MEMORANDUM DECISION AND ORDER - 3

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
MEMORANDUM DECISION AND ORDER - 4

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
MEMORANDUM DECISION AND ORDER - 5

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
MEMORANDUM DECISION AND ORDER - 6

§ 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 Defendants3 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

3

Of the various defendant parties, only Federal Defendants formally seek to sever
Plaintiffs’ NPL Project claims under FRCP 21 before transferring them via 28 U.S.C. § 1404(a).
See generally Fed. Defs.’ Mem. ISO Mot. to Dismiss, pp. 10-11 (Dkt. 99-1); but see WEA’s
Mot. to Dismiss (Dkt. 100) (joining in Federal Defendants’ arguments). Even so, each such
defendant party argues that Plaintiffs’ NPL Project claims should be transferred to the District of
Wyoming (if not dismissed (see supra)) and the Court’s analysis of that issue necessarily
incorporates the factors relevant to a predicate severance analysis. See infra. In short, if
Plaintiffs’ NPL Project claims are transferred, severance of those claims is similarly appropriate.
MEMORANDUM DECISION AND ORDER - 7

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 (Claim Three). These claims are predicated on
common factual and legal issues, including the meaning of the prioritization directive and
impacts to sage-grouse associated with oil and gas development.”); but see infra (comparing
Plaintiffs’ NPL Project claims with balance of lease sale claims).
There are similarities and some overlap between such circulating claims, but one set (the
NPL Project claims) is not like the rest. While the NPL Project claims could be viewed as
collapsing into Plaintiffs’ essential allegations, the factual backdrop to those claims (as well as
defenses) is unique to the NPL Project in ways that do not apply to the lease sale claims. There
is a fundamental difference between leasing decisions and project-level decisions that actually
authorize oil and gas development. Different primary decision-makers are involved, considering
different regulatory variables, leading to what are intended to be customized decisions and endresults. Together, these considerations reveal that Plaintiffs’ NPL Project claims are
substantively different than leasing decisions and the totality of Plaintiffs’ claims does not
represent an “essentially unitary problem.” The Court therefore exercises its discretion to sever
Plaintiffs’ NPL Project claims.4

4

To be clear, all of Plaintiffs’ NPL Project-related claims are severed, including those
contained within the First Amended Complaint’s First, Second, and Third Claims for Relief,
recognizing that all of the claims challenging the NPL Project are duplicated in the Seventh
Claim for Relief. Compare First Am. Compl. ¶¶ 276-307 (Dkt. 78) (discussing “prioritization,”
best available sage-grouse science, and cumulative effects of oil and gas development on sagegrouse and management alternatives within First, Second, and Third Claims for Relief), with id.
at ¶¶ 332-343 (discussing same in Seventh Claim for Relief). Moreover, the Seventh Claim for
Relief raises additional NEPA and FLPMA violations pertaining to the NPL Project which other
Claims for Relief do not. See id. at ¶ 340-341. Therefore, severing the Seventh Claim for Relief
effectively severs all of Plaintiffs’ NPL claims.
MEMORANDUM DECISION AND ORDER - 8

B.

Plaintiffs’ NPL Project Claims Are Transferred to the District of Wyoming
“For the convenience of 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) (internal quotation marks and citation omitted). The party
seeking the transfer bears the burden of demonstrating that the transferee district is a “more
appropriate forum.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000). Motions
to transfer venue lie within the broad discretion of the district court and must be determined on
an individualized basis. See id. at 498.
There are two steps in making that decision. First, the Court must decide whether the
case could have been brought in the forum to which the transfer is sought – meaning the
proposed transferee court has jurisdiction and venue is proper there. See 28 U.S.C. § 1404(a);
Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). If so, the second step calls for a
case-specific analysis that balances the plaintiff’s interest in choosing a forum against the
aggregate considerations of convenience and the interest of justice/fairness. See Steward Org.,
Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); Jones, 211 F.3d at 498-99. Among the privateinterest and public-interest factors for the court to consider are: (1) plaintiff’s choice of forum;
(2) convenience of the parties; (3) convenience of the witnesses; (4) ease of access to the
evidence; (5) familiarity with the applicable law; (6) feasibility of consolidation with other
claims; (7) any local interest in the controversy; and (8) the relative court congestion and time
[to] trial in each forum. See Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843
(9th Cir. 1986).
MEMORANDUM DECISION AND ORDER - 9

On balance, these factors justify transfer of Plaintiffs’ NPL Claims to the District of
Wyoming, as explained to follow.
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 (quoting 28 U.S.C. § 1404(a)). As a threshold matter, Plaintiffs do not dispute that, under 28
U.S.C. § 1391(e), they could have brought their NPL claims in the District of Wyoming. See,
e.g., Pls.’ Resp. to Mots. to Dismiss, pp. 15-20 (Dkt. 106) (only addressing factors involving
transfer analysis, not issue of venue in District of Wyoming itself).5 Therefore, the Court turns
to the parties’ other arguments regarding transfer under § 1404(a).
2.

Step Two: Convenience and the Interest of Justice

Environmental cases such as this one typically are “resolved by the court examining the
administrative record to decide cross-motions for summary judgment . . . . There are no
witnesses to consider, and documentary evidence is as easily provided in one venue as another,
especially in this age of electronic transmission.” Ctr. for Biological Diversity v. Kempthorne,

5

The Court agrees. Wyoming is a proper venue for Plaintiffs’ NPL Project claims
because, at the very least, “a substantial part of the events or omissions giving rise” to the claims
took place in Wyoming. 28 U.S.C. § 1391(e)(1)(B); see Fed. Defs.’ Mem. ISO Mot. to Dismiss,
pp. 13-14 (Dkt. 99-1) (noting that approval process involved consultation with State of Wyoming
(including appropriate state agencies), several Wyoming counties, and Town of Pinedale,
Wyoming, participating as “cooperating agencies” during NEPA process; NEPA process
involved consultation with several tribes in region; BLM’s Pinedale and Rock Springs Field
Offices (both located in Wyoming) prepared Draft Environmental Impact Statement (“DEIS”)
and FEIS; all public meetings on NPL Project were held in Wyoming (Pinedale, Rock Springs,
and Marbleton); more than two-thirds of public scoping comments submitted on NPL Project in
2011 originated in Wyoming (including those comments submitted by WWP); BLM’s Wyoming
State Director, Mary J. Rugwell made decision to approve NPL Project and signed all Federal
Register notices related to NPL Project; and NPL Project itself is located entirely within
Wyoming, covering approximately 141,000 acres in BLM’s Pinedale and Rock Springs Field
Offices); see also Jonah Mem. ISO Mot. to Dismiss, pp. 6-8 (Dkt. 96-1).
MEMORANDUM DECISION AND ORDER - 10

2007 WL 2023515, *5 (N.D. Cal. 2007) (internal quotation marks omitted).6 Further, because all
federal courts are competent to decide federal issues correctly, coupled with the fact that this
Court has been actively involved in the case since its inception in April 2018 (though largely in
matters preceding Jonah’s intervention), there is no reason to conclude that transfer from the
District of Idaho to the District of Wyoming will assist with relative court congestion and the
time to trial. See 9/4/18 MDO, pp. 11-12 (Dkt. 66). In sum, the convenience factors are
basically neutral, distilling the Court’s focus down to the strain between Plaintiffs’ choice of
forum in Idaho and Wyoming’s more localized interest in the NPL Project.
In that regard, while substantial deference is typically given to Plaintiffs’ choice of
forum, there is less reason for such deference when “the operative facts have not occurred within
the forum of original selection and that forum has no particular interest in the parties or the
subject matter.” Pacific Car and Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968); see
also Klamath Tribes v. U.S. Bureau of Reclamation, 2018 WL 3570865, *7 (N.D. Cal. 2018)
(“However, even if venue is proper here, when the environmental impact alleged is not in the
district chosen and defendants move to transfer to the affected area, then plaintiff’s chosen forum

6

Plaintiffs argue that transferring the NPL Project claims to Wyoming would “saddle
[them] with a greater burden, expense, and delay of litigating a second case outside their home
forum” and require them to “have to locate and engage local counsel in the District of Wyoming,
and expand far more staff time and attorney resources in traveling to Wyoming district court.”
Pls.’ Resp. to Mots. to Dismiss, p. 13 (Dkt. 106); see also Decker Coal, 805 F.2d at 843 (transfer
is not appropriate under § 1404(a) where it “would merely shift rather than eliminate the
inconvenience”). Inconvenience for Plaintiffs’ attorneys, however, is arguably a non-issue. See
Ctr. for Biological Diversity v. Rural Utilities Serv., 2008 WL 2622868, *1 (N.D. Cal. 2008).
Still, WWP (the only Plaintiff with a residence in Idaho) and CBD have been litigants in the
District of Wyoming in several cases over the years. See Wyoming’s Reply ISO Mot. to
Dismiss, p. 9 (Dkt. 109) (identifying “active cases” in District of Wyoming involving Plaintiffs).
And, to the extent witnesses are needed moving forward, the Court notes that (1) its Pocatello
courthouse is actually closer to Pinedale and Rock Springs, Wyoming than is the federal
courthouse in Cheyenne, Wyoming and (2) the Pocatello courthouse is roughly equidistant with
the federal courthouse in Casper, Wyoming. All this is to say that the convenience factors are
not so strong as to favor venue in either Idaho or Wyoming.
MEMORANDUM DECISION AND ORDER - 11

is given less consideration.”) (citing Sierra Club v. U.S. Defense Energy Support Ctr., 2011 WL
89644, *3 (N.D. Cal. 2011) (giving chosen forum little weight because “the underlying action is
not connected to the Northern District of California.”); Sierra Club v. U.S. Dep’t of State, 2009
WL 3112102, *3 (N.D. Cal. 2009) (giving chosen forum little weight when none of operative
facts occurred within district and district had little interest in parties or subject matter)).
Here, the only connection between the portion of this lawsuit relating to the NPL Project
and the District of Idaho is WWP’s residence in Hailey, Idaho. In stark contrast, the NPL
Project’s very existence is inextricably linked to Wyoming. For example:


The NPL Project is in Wyoming. See supra.



Public lands within the NPL Project area are managed by the BLM’s Pinedale and
Rock Springs, Wyoming Field Offices. See Ulrich Decl., ¶ 7 (Dkt. 96-2). Policies
and guidelines for development within the NPL Project area are contained in the
Pinedale and Green River Resource Management Plans (“RMPs”) and RODs. See
Rugwell Decl., ¶ 4 (Dkt. 99-7).



Planning for the NPL Project took place in Wyoming. See id. at ¶ 5.
o The BLM signed memoranda of understanding (“MOU”) with nine
agencies that worked as cooperating agencies during the preparation of the
NPL Project Environmental Impact Statement (“EIS”): (1) the U.S.
Environmental Protection Agency; (2) Lincoln County, Wyoming; (3)
Lincoln County Conservation District; (4) Wyoming (and “all appropriate
state agencies”); (5) Sublette County, Wyoming; (6) Sublette County
Conservation District; (7) Sweetwater County, Wyoming; (8) Sweetwater
County Conservation District; and (9) Pinedale, Wyoming. See id.; see also
NPL Project ROD, p. 34 (Dkt. 99-2).
o On April 12, 2011, BLM published the Notice of Intent to prepare an EIS
for the NPL Project in the Federal Register (76 Fed. Reg. 20370) and held
three scoping meetings May 2-4, 2011 in Pinedale, Marbleton, and Rock
Springs, Wyoming. See Rugwell Decl., ¶ 7 (Dkt. 99-7); see also NPL
Project ROD, p. 36 (Dkt. 99-2).
o On July 7, 2017, a Notice of Availability for the DEIS for the NPL Project
was published in the Federal Register (76 Fed. Reg. 31628) and the BLM
held public meetings in the Pinedale, Wyoming Field Office on July 25,
2017 and the Rock Springs, Wyoming Field Office on July 26, 2017. See
id.

MEMORANDUM DECISION AND ORDER - 12

o On June 22, 2018, a Notice of Availability for the FEIS for the NPL Project
was published in the Federal Register (76 Fed. Reg. 20370). See Rugwell
Decl., ¶ 8 (Dkt. 99-7); see also NPL Project ROD, p. 37 (Dkt. 99-2). The
BLM received comments on the FEIS from one federal government entity,
three Wyoming government entities, two local government entities, and
four interest groups or businesses, which the BLM considered when
preparing the NPL Project ROD. See id.
o On August 27, 2018, the BLM Wyoming State Director, Mary Jo Rugwell,
signed the NPL Project ROD, approving the NPL Project. See NPL Project
Rod, p. 1 (Dkt. 99-2).


The NPL Project is subject to, and implemented in accordance with, approved land
use plans that have incorporated Wyoming’s Core Area Protection Strategy
(“CAS”), including the Pinedale and Green River RMPs/RODs and Approved
Resource Management Plan Amendments (“ARMPA”) for the Rocky Mountain
Region. See NPL Project ROD, p. 3 (Dkt. 99-2); see also Ulrich Decl., ¶¶ 32-34,
39 (Dkt. 96-2).
o Initially developed in 2008 by the Sage-Grouse Implementation Team
(“SGIT”), 7 the CAS represents Wyoming’s template for managing greater
sage-grouse by (1) identifying and protecting sage-grouse priority habitat
areas (“Core Population Areas”) through a series of stipulations that avoid
and minimize impacts to greater sage-grouse within such Core Population
Areas, and (2) utilizing compensatory mitigation as a conservation strategy
when avoidance and minimization measures are inadequate to protect Core
Population Areas. See Ulrich Decl., ¶¶ 13-26, 29 (Dkt. 96-2); see also
Executive Order 2015-4, attached as Ex. 4 to Ulrich Decl. (Dkt. 96-6)
7

Consisting of 16 members in 2007 (later expanded to 24 members), the SGIT is
composed of a variety of governmental and stakeholder interests, including (1) state/local
government/agencies (Governor’s Office, Wyoming House of Representatives and Senate,
Wyoming Game and Fish Department (“WGFD”), Department of Environmental Quality, Oil
and Gas Conservation Commission, Office of State Lands, Department of Agriculture, and
Department of Transportation, Wyoming Wildlife and Natural Resource Trust Fund Board, and
county commissioners), (2) federal agencies (BLM, U.S. Fish and Wildlife Service (“USFWS”),
U.S. Forest Service (“Forest Service”), and Natural Resources Conservation Service), and (3)
non-governmental representatives (oil and gas, mining, wind energy/transmission, and
agricultural industries and conservation citizen groups). See Ulrich Decl., ¶ 15 (Dkt. 96-2) (Paul
Ulrich serves as one of two oil and gas industry representatives on SGIT and is Jonah’s Director
of Government Relations); see also generally Wyo. Stat. Ann. § 9-19-101 (discussing SGIT
membership and how SGIT shall “review data and make recommendations to the governor
regarding actions and funding to maintain and enhance sage grouse populations and sage grouse
habitats in Wyoming” and “make recommendations to the governor regarding regulatory actions
necessary to maintain and enhance sage grouse populations and sage grouse habitats in
Wyoming.”).
MEMORANDUM DECISION AND ORDER - 13

(Executive Order from then-Wyoming Governor Matthew H. Mead
(replacing Executive Orders 2011-5 and 2013-3), identifying Wyoming’s
CAS as “the State of Wyoming’s primary regulatory mechanism to
conserve the Greater sage-grouse . . . .”).
o In July 2010, the Wyoming legislature adopted a joint resolution endorsing
the CAS. See Ulrich Decl., ¶ 24 (Dkt. 96-2).8
o In September 2015, the BLM and Forest Service completed their National
Greater Sage-Grouse Planning Strategy, which amended 98 BLM Resource
Management Plans (“RMPs”), including the Pinedale RMP and Green
River RMP – these amendments represent the ARMPA. See First Am.
Compl., ¶¶ 4, 49 (Dkt. 78).
o The ARMPA “provides specific goals, objectives, management actions, and
required design features for the conservation of Greater Sage-Grouse in
Wyoming.” ARMPA, App. D, p. 136, attached as Ex. 12 to Ulrich Decl.
(Dkt. 96-14).
o The ARMPA endorsed, and largely adopted the CAS. See ARMPA, pp. 2021, attached as Ex. 12 to Ulrich Decl. (Dkt. 96-14) (“The ARMPA is built
upon the foundation for GRSG [(greater sage-grouse)] management
established by and complementary to the Governor’s Executive Order
2011-05, Greater Sage Grouse Core Area Protection (Core Area Strategy),
State of Wyoming Executive Department (2011), by establishing similar
conservation measures and focusing restoration efforts in the same key
areas most valuable to the GRSG.”); see also ARMPA ROD, p. 1-30,
attached as Ex. 13 to Ulrich Decl. (Dkt. 96-15) (“This ROD approves three
RMPs – Buffalo, Cody and Worland – and an amendment to six RMPs
(Wyoming RMPA). All of the Wyoming plans are built on the foundation
for GRSG management established by and complementary to the
Governor’s Executive Order 2011-05, Greater Sage-Grouse Core Area
Protection (Core Area Strategy; Wyoming Office of the Governor 2011)
and updated Executive Order (2015-4), by establishing similar conservation
measures and focusing restoration in the same key areas most valuable to
GRSG.”); ARMPA, App. D, p. 136, attached as Ex. 12 to Ulrich Decl. (Dkt.
96-14) (“The measures identified in the ARMPA have been developed in
coordination with not just the USFWS, but also the State of Wyoming,
including the Wyoming Game and Fish Department, and local cooperating
8

In 2012, this Court recognized (after an evidentiary hearing) that “[t]he CAS is a
serious and coordinated effort by stake holders in Wyoming to counter the effects of drilling.”
WWP v. Salazar, 2012 WL 5880658, *7 (D. Idaho 2012); see also id. at *6 (“Thus, it appears
that Wyoming has made an effort to protect the birds in their natural habitats and not just on land
ignored by drillers. The FWS, a participant in the CAS’s formation, concluded that if the CAS
was fully implemented in Core Areas, it ‘would provide adequate protection for sage-grouse and
their habitat in that State.’”) (citing 75 Fed. Reg. 13975).
MEMORANDUM DECISION AND ORDER - 14

agencies including conservation districts and counties. . . . . The ARMPA
is consistent with the Core Area Strategy, but contains additional
restrictions to protect other resources, which results in added protections to
Greater Sage-Grouse habitat and achieving conservation objectives . . . .”).
o In the ARMPA, the BLM committed to extensive ongoing cooperation
efforts with Wyoming. See ARMPA, p. 23 , attached as Ex. 12 to Ulrich
Decl. (Dkt. 96-14) (identifying ARMPA “management objectives” as
including: “In cooperation with the State of Wyoming and its agencies,
local governments, private landowners, local sage-grouse working groups,
partners and stakeholders, develop site-specific conservation strategies to
maintain or enhance sage-grouse habitats and habitat connectivity”;
“[m]anage sage-grouse seasonal habitats and maintain habitat connectivity
to support population objectives set by the State of Wyoming in cooperation
with the agencies”; and “[i]ncorporate available site information collected
using the Sage-Grouse Habitat Assessment Framework or similar methods
to evaluate existing resource conditions and to develop any necessary
resource solutions in cooperation with State of Wyoming, its agencies, the
local governments, private landowners, project proponents, partners, and
stakeholders”); see also id. at p. 26 (identifying “Management Decisions”
within “General Management Direction” as including: “MD GMD 1:
Continue to support the development of statewide sage-grouse seasonal
habitat models for the State of Wyoming”; “MD GMD 2: Field offices will
work with project proponents, partners, and stake holders to avoid or
minimize impacts and/or implement direct mitigation . . . . When necessary,
offsite compensatory mitigation will be applied consistent with Wyoming’s
Core Area Strategy”; “MD GMD 3: Utilize the Wyoming Sage-Grouse
Implementation Team (SGIT) and Local Working Group plans or other
state plans, analyses, and other sources of information to guide development
of conservation objectives for local management of sage-grouse habitats”;
“MD GMD 5: The BLM will coordinate new recommendations,
mitigation, habitat objectives, and management considerations applied for
sage-grouse with the WGFD and other appropriate agencies, local
government cooperators, and the Wyoming SGIT”; and “MD GMD 8:
Each BLM field office will develop landscape-scale restoration,
conservation, and maintenance strategies . . ., working with voluntary
partners and cooperating agencies.
These strategies and habitat
designations must be coordinated and reconciled with Wyoming’s Greater
Sage-Grouse Core Area Protection strategy”) (emphasis in original).
o In February/March 2017, the U.S. Department of Interior (through the BLM
and USFWS), the Department of Agriculture (through the Forest Service
and Natural Resource Conservation Service), and the State of Wyoming
entered into an MOU to “develop intergovernmental communication and
mechanisms to provide a cohesive and consistent conservation strategy for
the Greater sage-grouse and its habitat in Wyoming.” See MOU, p. 1,
attached as Ex. 10 to Ulrich Decl. (Dkt. 96-12). Under the MOU, the parties
MEMORANDUM DECISION AND ORDER - 15

“agree to work collaboratively and put forth a good faith effort to achieve
mutually acceptable outcomes consistent with the goals of EO 2015-4 and
the respective federal plans.” Id. at p. 5.


The NPL Project ROD requires that ARMPA’s protection measures be applied. See
NPL Project ROD, p. 8 (Dkt. 99-2).9
The details described above highlight the fact that the ARMPA (which Plaintiffs claim

the NPL Project violates) reflects the BLM’s recognition of Wyoming’s CAS as a viable greater
sage-grouse management tool, such that Plaintiffs’ challenge to the NPL Project’s FEIS and
ROD essentially challenges Wyoming’s CAS – an extensive plan for managing and conserving
sage-grouse populations and habitat in Wyoming, developed over many years and at significant
expense through the collaborative efforts of diverse Wyoming-centric stakeholders. Whether
Plaintiffs have confidence in or criticism for the Wyoming CAS does not change its inherent ties
to Wyoming and it is therefore distinguishable from the Plaintiffs’ more expansive challenges to
oil and gas lease sales across the western United States (which the Court did not sever and
transfer earlier). See 9/4/18 MDO, p. 11 (Dkt. 66) (“The subject-matter of this lawsuit [(preNPL Project claims)], however, is much more expansive. Plaintiffs contend that, as to such sales

9

Notably, however, this gives way if there is more “current” guidance available. See
NPL Project ROD, p. 8 (Dkt 99-2) (“The following protection measures from [ARMPA] will be
applied, unless more current guidance is adopted by the BLM . . . .”); see also id. at p. 25 (“The
BLM will apply appropriate mitigation standards during site-specific permitting based on
guidance and decisions current at the time.”); id. at p. 26 (“When authorizing third-party actions
that result in Sage-Grouse habitat loss and degradation in [Priority Habitat Management Areas]
and Winter Concentration Areas [(including Regional Gathering Facilities in these areas)], the
BLM will require and ensure appropriate mitigation that complies with current policy and land
use plans.”). So, while the NPL Project ROD may align with ARMPA and Wyoming’s CAS at
present, as discussed during oral argument, there is the possibility that in the future an altogether
different policy from ARMPA and the CAS becomes the “current” guidance yardstick –
particularly when considering Plaintiffs’ allegations surrounding the Trump Administration’s
more recent oil and gas policy/directives. Though of legitimate concern, this possibility is still
inchoate and cannot apply to upend what is known and in the record. Even so, if BLM changes
position with respect to the NPL Project’s current alignment with the ARMPA and Wyoming’s
CAS, the Wyoming federal court is just as (if not more) capable of addressing that circumstance
in light of the other Wyoming-specific factors at play here.
MEMORANDUM DECISION AND ORDER - 16

(regardless of which state is involved), there are common violations of federal laws predicated
on strategic policy directives from the Trump Administration which, in turn, will result in
cumulative impacts threatening sage-grouse across the sage-grouse range. The Plaintiffs’ claims
are not specific to any particular transferee district; hence, they argue, and the Court is
persuaded, that nothing about the fact of the lease sales (and any corresponding local interest in
the same) raises a compelling argument in favor of transfer. In short, they exist independently
from whether Federal Defendants complied with federal law; the leases may be local, but the
challenged national policies that created them are not.”) (emphasis in original; internal citations
omitted). Additionally, recognizing the NPL Project’s ties to Wyoming, its impacts (economic,
environmental, and otherwise) are logically most distinctly absorbed by Wyoming interests – this
is true even without Plaintiffs’ challenge to the NPL Project and therefore especially so in light
of that same challenge.
In sum, Wyoming’s connection to the NPL Project, and thus also to Plaintiffs’ claims
challenging the NPL Project, is more pronounced than Idaho’s and operates to overcome
Plaintiffs’ original choice of forum in this District. See, e.g., Klamath Tribes, 2018 WL 3570865
at *7 (acknowledging current and transferee forums’ interests in having localized controversies
decided at home, stating that “courts consider specific environmental locales or the location of
the protective species that ‘can give certain districts an especially acute interest’ in deciding
cases there.”) (quoting Animal Legal Def. Fund v. U.S. Dep’t of Agric., 2013 WL 120185, *6
(N.D. Cal. 2013)); Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 19-20 (D.D.C. 1996)
(“Moreover, suits such as this one, which involve water rights, environmental regulation, and
local wildlife – matters that are of great importance in the State of Colorado – should be resolved
in the forum where the people ‘whose rights and interests are in fact most vitally affected by the
suit – the people of [Colorado].”) (quoting Adams v. Bell, 711 F.2d 161, 167 n.34 (D.C. Cir.
MEMORANDUM DECISION AND ORDER - 17

1983)). Simply put, Wyoming’s interests predominate over Idaho’s. Plaintiffs’ NPL Claims are
therefore transferred to the District of Wyoming.
III. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that (1) Jonah’s Motion to
Dismiss or in the Alternative to Transfer (Dkt. 96); (2) 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) WEA’s Motion to Dismiss
(Dkt. 100) are GRANTED, in part, and DENIED, in part, as follows:
1.

Plaintiffs’ NPL Claims are not dismissed. In this respect, the above motions are

DENIED.
2.

Plaintiffs’ NPL Claims are severed from this case pursuant to FRCP 21 and

transferred to the District of Wyoming pursuant to 28 U.S.C. § 1404(a). In this respect, the
above motions are GRANTED.
The Clerk shall transfer Plaintiffs’ NPL Claims – as represented broadly by Plaintiffs’
Seventh Claim for Relief (see supra at p. 8, n.4) – to the United States District Court for the
District of Wyoming.

DATED: July 9, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 18