Western Watersheds Project et al v. Zinke et al

Filing 66

MEMORANDUM DECISION AND ORDER Defendants' Motion to Sever and Transfer (Docket No. 12 ) is DENIED; Defendants' Motion for Expedited Consideration of Motion to Sever and Transfer (Docket No. 33 ) is GRANTED the Motion to Sever and Transfe r is now resolved; Plaintiffs' Motion for Leave to File Surreply Brief Opposing Motion to Sever and Transfer (Docket No. 38 ) is GRANTED and the Court has considered the same; and Intervenor Western Energy Alliance's Motion for Leave to Fi le Sur-Reply to Motion to Sever and Transfer (Docket No. 59 ) is GRANTED and the Court has considered the same. 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.
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,

Case No.: 1:18-cv-00187-REB
MEMORANDUM DECISION AND
ORDER RE:
DEFENDANTS’ MOTION TO SEVER
AND TRANSFER
(Docket No. 12)
DEFENDANTS’ MOTION FOR
EXPEDITED CONSIDERATION OF
MOTION TO SEVER AND
TRANSFER
(Docket No. 33)

and
STATE OF WYOMING; WESTERN ENGERGY
ALLIANCE
Defendant-Intervenors.

PLAINTIFFS’ MOTION FOR LEAVE
TO FILE SURREPLY BRIEF
OPPOSING MOTION TO SEVER
AND TRANSFER
(Docket No. 38)
INTERVENOR WESTERN ENERGY
ALLIANCE’S MOTION FOR LEAVE
TO FILE SUR-REPLY TO MOTION
TO SEVER AND TRANSFER
(Docket No. 59)

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:
MEMORANDUM DECISION AND ORDER - 1

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.
MEMORANDUM DECISION AND ORDER - 2

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
II. DISCUSSION
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

1

Defendant-Intervenors Wyoming and Western Energy Alliance (“WEA”) were not
parties at the time Federal Defendants’ Motion to Sever and Transfer was filed. Since then, both
Wyoming and WEA (collectively “Intervenor-Defendants”) have intervened. See 8/21/18 MDO
(Dkt. 54). WEA, like Wyoming, contends that severance and transfer are appropriate. See, e.g.,
WEA’s Proposed Sur-Reply in Supp. of MST (Dkt. 59-1).
Federal Defendants changed their position and now argue that “the interests of judicial
economy would best be served by transferring the IM claims to the U.S. District Court for the
District of Montana, along with the claims challenging lease sales in Montana.” Fed. Defs.’
Resp. to Pls.’ Mot. for Leave to File Surreply Brief in Opp. to MST, p. 2 (Dkt. 42). Pointing to
their decision not to seek a similar transfer (at least as to IM 2018-026) in another case filed in
Montana (Case No. 4:18-cv-00069-BMM), Federal Defendants contend that Plaintiffs’
challenges to IM 2018-026 and IM 2018-034 here should likewise be resolved in Montana and
transferred accordingly. See id. at pp. 2-4 (“In the case of the Montana lease sales, the
appropriate jurisdiction is the District of Montana. Two of the three Montana lease sales
challenged in this case are also challenged in the Montana case. Further, like this case, the
Montana case includes claims challenging IM 2018-026. Resolving those claims together in one
case will serve judicial economy, as well as ensure that claims involving lands within Montana
are resolved by a Montana court.”) (emphasis added, internal citations omitted).
2

MEMORANDUM DECISION AND ORDER - 3

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

3

As discussed in more detail infra, an action may be transferred to another district where
it might properly have been brought originally. See 28 U.S.C. § 1404(a). This case could not
have been brought in any federal court other than the District of Idaho, except for the District of
Columbia. See supra (discussing 28 U.S.C. § 1391 vis à vis the various proposed transferee
districts). Therefore, to effectively transfer this action from Idaho, Federal Defendants had to
first seek to sever all the claims and then seek to transfer those splintered claims to federal courts
in four different locales (Montana, Wyoming, Utah, and Washington, D.C.).
MEMORANDUM DECISION AND ORDER - 4

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 (9th
Cir. 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

MEMORANDUM DECISION AND ORDER - 5

“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 resident of Montana, Utah, and Wyoming because it has offices
in all three states and manages land and resources in all three states.

4

Within their Complaint, WWP alleges that “[v]enue is proper in this Court under 28
U.S.C. § 1391(e) because Plaintiff [WWP] resides in this district and Plaintiff [CBD] has staff
and members in this district; Defendant BLM has offices and staff that manage greater sagegrouse habitats on public lands and administer federal fluid minerals in Idaho; and a substantial
part of the events or omissions giving rise to the claims herein occurred within this district.
Compl., ¶ 17; but see infra.
MEMORANDUM DECISION AND ORDER - 6

Moreover, the decision-making process for each lease sale occurred in the state
office offering the sale. In cases brought under the Administrative Procedure Act,
courts generally focus on where the decision-making process occurred to determine
where the claims arose. For this same reason, transfer of claims challenging IM
2018-026 and IM 2018-034 to the District Court for the District of Columbia is also
proper, because BLM has offices in the District of Columbia, and because
according to Plaintiffs’ own allegations, the decision-making process for the IMs
occurred in DC.
In addition to BLM’s residency in each state, the property that is the subject of the
action – i.e., the parcels subject to each lease sale – are located in each state, thus
making venue appropriate under 28 U.S.C. § 1391(e)(1)(B). The “touchstone” for
application of 28 U.S.C. § 1391(e)(1)(B) is whether the action centers directly on
the real property, as with actions concerning the right, title, or interest in real
property. That requirement is satisfied here because Plaintiffs challenge and seek
to vacate BLM’s issuance of oil and gas leases, which involve the acquisition of a
real property interest.
Fed. Defs.’ Mem. in Supp. of MST, pp. 11-12 (internal quotation marks and citations omitted).
In other words, Federal Defendants conclude that venue is appropriate in each proposed
transferee district because (1) BLM resides there, (2) the decision-making surrounding the oil
and gas leases took place there, and (3) the leases themselves involve real property interests
located there. On balance, these arguments are unpersuasive for the following reasons.
It is not established law that federal government defendants reside in every judicial
district in which an agency has a regional office. See Tsi Akim Maidu of Taylorsville Rancheria
v. United States Dep’t of Interior, 2017 WL 2289203, at *2 (N.D. Cal. 2017) (citing Williams v.
United States, 2001 WL 1352885, at *1 (N.D. Cal. 2001); Reuben H. Donnelly Corp. v. Federal
Trade Comm’n, 580 F.2d 264, 267 (7th Cir. 1978) (“[T]o hold that a federal agency can be sued .
. . wherever it maintains an office would, as a practical matter, render [§ 1391(e)’s other
subsections] superfluous,” because federal agencies are likely to maintain offices in “most, if not
all, judicial districts)); but see California v. Bureau of Land Mgmt., 2018 WL 3439453, at *3
(N.D. Cal. 2018). Instead, federal agency defendants are generally deemed to reside in the
District of Columbia. See Zhang v. Chertoff, 2008 WL 5271995, at *3 (N.D. Cal. 2008) (citing
MEMORANDUM DECISION AND ORDER - 7

Williams, 2011 WL 1352885 at *1; Reuben, 580 F.2d at 267). In addition, venue with respect to
a federal officer or employee is proper in the place of his official residence – in other words,
where his official duties are performed. See Reuben, 580 F.2d at 266, n.3. Here, neither BLM
itself nor any of the individual Federal Defendants reside in Montana, Utah, or Wyoming.
Accordingly, 28 U.S.C. § 1391(e)(1)(A) does not support Federal Defendants’ position.5
Additionally, even though oil and gas lease sales may concern particular federal lands,6
the fact that oil or gas development rights are leased by the federal government to a nongovernmental entity does not mean ipso facto that (1) a “substantial part of the events . . . giving
rise to the claim” took place in the proposed transferee districts, or (2) a “substantial part of the
property that is the subject of the action” is situated in the proposed transferee districts, as 28
U.S.C. § 1391(e)(1)(B) requires. Those distinctions are significant to this case, where Plaintiffs
contend that in issuing these oil and gas leases, Federal Defendants violated federal law by

5

The residence of the state of Wyoming is, obviously, Wyoming (one of the proposed
transferee districts), not Washington D.C. Wyoming, however, was not a party until it
successfully intervened – after Federal Defendants filed their Motion to Sever and Transfer and
after oral argument on the same. Regardless, the presence of the state of Wyoming as an
intervening party does not inform whether venue is proper in either Montana or Utah. Likewise,
WEA is not a resident of any of the proposed transferee districts’ states; it resides in Colorado.
6

In granting Wyoming’s and WEA’s Motions to Intervene, the Court stated:

This litigation may impact oil and gas leases (both existing and future) in Wyoming,
while also affecting regulatory procedures surrounding the issuance of oil and gas
leases generally in portions of the Western United States. Hence, both entities have
a significantly protectable interest at stake in this litigation – interests that could be
impaired if they are not permitted to intervene. . . . .
While Federal Defendants will generally defend the Secretary’s decision (and
decision-making process), only Wyoming and WEA are uniquely capable of
explaining how any potential ruling will affect a state’s economy and the property
interests of a private trade association that are both heavily dependent on oil and
gas production/leasing.
8/21/18 MDO, pp. 5-6 (internal citations omitted).
MEMORANDUM DECISION AND ORDER - 8

disregarding established mandates for the way oil and gas lease sales are handled on public lands
that affect sage-grouse habitat/populations. Hence, the heart of the disputes is not solely about
how a local BLM office handled a lease sale, but rather over the legal propriety of “national
policies” that Plaintiffs contend “have eroded protections for the sage-grouse and cut the public
out of oil and gas planning on public lands.” Pls.’ Opp. to MST, pp. 16-17.
Though overarching and broad in scope, Plaintiffs’ claims in these respects are not
amorphous. Rather, they follow the legal and geographic contours of the challenged federal
actions, which happen to trace a very large pattern which is not random in nature but rather is
connected to the numbered dots of Federal Defendants’ alleged improper actions. Thus, this case
does not raise the sort of “generic challenge” to agency action proscribed by Lujan v. National
Wildlife Fed’n, 497 U.S. 871 (1990). See WWP v. Salazar, 2009 WL 1299626 (D. Idaho 2009)
(rejecting defendant BLM’s argument that action must be dismissed under Lujan, stating: “The
complaint, read broadly, challenges the separate decisions of each BLM office” and “is making a
series of individual challenges to discrete final agency actions, each of which will require
analysis of the applicable administrative record.”); WWP v. Schneider, 2017 WL 874568 (D.
Idaho 2017) (favorably citing Salazar); see also infra (discussing localized interests of instant
dispute). In this setting, 28 U.S.C. § 1391(e)(1)(B) also does not apply to favor venue in either
Montana, Utah, or Wyoming.
These same issues are implicated in considering Plaintiffs’ stated justification for venue
in Idaho. See supra (noting that Plaintiffs alleged that venue is proper because, inter alia, BLM
has offices and staff in Idaho, and “a substantial part of the events or omissions giving rise to the
claims herein occurred within this district.”). But importantly, even absent such prerequisites,
venue is appropriate in Idaho because, at the very least, WWP resides in Idaho. See 28 U.S.C.
§ 1391(e)(1)(C) (action against federal agency may be brought in any judicial district in which
MEMORANDUM DECISION AND ORDER - 9

“plaintiff resides if no real property is involved in the action.”);7 see also Compl., ¶ 17 (alleging,
as primary basis for venue in Idaho, that “Plaintiff [WWP] resides in this district . . . .”).
Therefore, while WWP’s residency in Idaho allows for venue in Idaho under 28 U.S.C.
§ 1391(e)(1)(C), it does nothing to establish venue in either Montana, Utah, or Wyoming.8
Hence, with venue uncertain beyond Idaho, the possible transfer of the action in whole or
in pieces to some other federal court or courts stumbles at the gate. Even so, the Court will
examine the other factors informing a possible change in venue for the case so as to fully
consider the merits of doing so.
2.

Step Two: Convenience, Fairness, and Interests of Justice

Assuming more than one permissible venue, applicable law imposes a strong
presumption in favor of the Plaintiffs’ choice of forum. Federal Defendants must make a “strong
showing” of inconvenience to warrant upsetting that choice. See Salazar, 2009 WL 1299626 at
*2 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); Decker Coal Co. v. Commonwealth
Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). Here, Federal Defendants contend that transfers
to the various proposed transferee districts are necessary to (1) have “localized controversies

7

To the extent Federal Defendants argue that real property is involved given the very
nature of oil and gas leases generally, Salazar holds otherwise. See Salazar, 2009 WL 1299626
at *2 (“[T]he legislative history to this statute shows that the property limitation was added due
to congressional concerns over the local nature of some real property actions, suggesting that it
relates to matters of right, title, and interest” and finding persuasive cases that have held that
environmental actions such as this are not actions in which real property is involved.”) (internal
citations omitted, emphasis added); but see WEA’s Proposed Sur-Reply to MSJ, pp. 2-3 (arguing
that oil and gas lease sales “unquestionably” involve real property.”).
8

It should also be said that Federal Defendants’ changing position on where Plaintiffs’
challenges to IM 2018-026 and IM 2018-034 should be transferred to (originally Washington
D.C., now Montana) does not fit within the requirements of 28 U.S.C. § 1391(e)(1). The
resolution of those disputes could proceed in Washington D.C. (the IMs are national policy
memoranda authored there and implicate issues of national scope), but the same cannot be said
for Montana.
MEMORANDUM DECISION AND ORDER - 10

decided at home, (2) promote consistency among court rulings, and (3) relieve court congestion
in the District of Idaho. See Fed. Defs.’ Mem. in Supp. of MST, pp. 13-19 (Docket No. 12, Att.
1).9 Such arguments ultimately are veneers because a more in-depth assessment of such factors
does not support a transfer.
It can reasonably be assumed, and Federal Defendants affirmatively contend, that there
are state-specific interests in the discussed oil and gas lease sales. The subject-matter of this
lawsuit, however, is much more expansive. Plaintiffs contend that, as to such sales (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. See Opp. to MST, p. 17. 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.10
Salazar considered similar cross-currents. There, the plaintiff (also WWP) described
overarching NEPA and FLPMA violations affecting sage-grouse on a broad basis and challenged

9

Federal Defendants concede that (1) each possible forum’s familiarity with the
applicable law, and (2) the convenience factors are neutral. See Fed. Defs.’ Mem. in Supp. of
MST, pp. 19-20 (“[C]ourts follow the principle that all federal courts are competent to decide
federal issues correctly. . . . As this case is brought under the APA and will be decided on the
basis of an administrative record, the convenience factors are not particularly relevant.”) (internal
quotation marks and citations omitted).
10

Plaintiffs do seek to upend the lease sales, but their challenges are not focused directly
upon those sales. Hence, the fact that there is a remedy that seeks to prevent such sales is a piece
of the venue analysis. It is not, however, a dispositive piece, as Plaintiffs’ more far-reaching
claim is that the Defendants’ oil and gas lease policies are fundamentally rotten to the core when
it comes to sage-grouse protections.
MEMORANDUM DECISION AND ORDER - 11

18 Environmental Impact Statements (prepared by 18 separate BLM offices in six different
states) that separately supported a Resource Management Plan (“RMP”) governing each BLM
district. In rejecting the defendant’s (also BLM) motion for partial dismissal, or, in the
alternative, to sever and transfer, the Salazar court explained:
Even more importantly, the issues do not break down neatly into “home” judicial
districts. A key issue in this case is whether the BLM considered the cumulative
impact of environmental factors acting in a widespread area stretching beyond RMP
boundaries. For example, WWP alleges that each of the RMPs failed to consider
the cumulative impacts on particular sage grouse populations, some of which are
found in regions governed by several different RMPs. Moreover, WWP alleges
that all the RMPs failed to address the cumulative impact of global warming, an
impact that may extend beyond the boundaries of a judicial district.
The merits of these claims are not before the Court; it is their mere allegation that
affects the venue analysis. And those allegations may require a court to analyze
effects beyond the borders of its judicial districts. Thus, the traditional desire to let
disputes be resolved in their home court has less weight here where the resolving
court may well be considering cumulative impacts in other judicial districts.
Resolution of environmental actions often affects areas far outside the judicial
district of the resolving court. For example, Montana District Judge Donald W.
Molloy resolved a dispute over the de-listing of a distinct population segment of
the Rocky Mountain gray wolf that was found in Idaho, Wyoming, and Montana.
A population segment may span several judicial districts requiring a court to look
outside its own boundaries. . . .
For these reasons, the Court finds that the BLM has not carried its burden of
overcoming the strong presumption in favor of WWP’s choice of forum.
Accordingly, the Court will deny the BLM’s motion.
Salazar, 2009 WL 1299626 at *3 (internal citations omitted); see also Schneider, 2017 WL
874568 at *3 (same). This analysis applies equally here, and similarly augers against the transfer
of this action to another court.
Further, a decision that keeps the case intact in this federal judicial district, largely avoids
the risk of inconsistent court rulings, rather than creating such a risk as Federal Defendants
contend. See Fed. Defs.’ Mem. in Supp. of MST, p. 17 (“In these circumstances, the interests of
justice strongly favor a single court hearing similar claims regarding the same lease sales to
MEMORANDUM DECISION AND ORDER - 12

avoid the risk of conflicting judgments.”). There is, as the parties have referenced, a similar (but
not identical) case in the District of Montana, filed on the same date as this case. However, the
transfer of portions of this action there and to at least two other district courts (in the Tenth
Circuit) obviously would not serve to lessen the risk of conflicting rulings. The opposite is more
likely. See Schneider, 2017 WL 874568 at *3 (“But transferring the overarching claims to five
different courts will force plaintiffs to make five identical arguments before five separate judges,
increasing the potential for conflicting rulings while placing a substantial burden on plaintiffs.”).
Lastly, whether transfer would relieve congestion in the transferor district misses the
point. Any relief to an already-pressed docket must be contrasted against the ability of the
proposed transferee districts to consider and resolve the case more efficiently. See WWP v.
Salazar, 2010 WL 375003, at *3 (D. Idaho 2010) (“The Court recognizes that ‘[t]he real issue is
not whether a dismissal will reduce a court’s congestion but whether a trial may be speedier in
another court because of its less crowded docket.’”) (quoting Gates Learjet Corp. v. Jensen, 743
F.2d 1325, 1337 (9th Cir. 1984)). With such considerations in mind, there is no indication that
the proposed transferee districts can guarantee such economies – especially when considering
that severance, by its very nature, necessarily creates multiple overlapping cases instead of one.
See Salazar, 2010 WL 375003 at *3 (“The Court must also “weigh carefully whether the
inconvenience and possible inefficiency of severing the suit outweighs the advantages to be
gained from transfer.’”) (quoting 15 Wright, Miller and Cooper, Federal Practice & Procedure,
§ 3845 at p. 65 (2007))).11

11

Relevant here, Plaintiffs’ pending Motion for Preliminary Injunction dealing with IM
2018-034 (Docket No. 30) is currently set for hearing in less than one week – on September 6,
2018 and Plaintiffs seek an expedited decision before September 15, 2018. Additionally, the
Montana case does not have any similar claim.
MEMORANDUM DECISION AND ORDER - 13

In balancing these factors, the Court finds that Federal Defendants have not met their
burden to show that transferring this case, in multiple parts, to the proposed transferee districts is
proper.
III. ORDER
Based upon the foregoing, IT IS HEREBY ORDERED that:
1.

Defendants’ Motion to Sever and Transfer (Docket No. 12) is DENIED;

2.

Defendants’ Motion for Expedited Consideration of Motion to Sever and Transfer

(Docket No. 33) is GRANTED – the Motion to Sever and Transfer is now resolved;
3.

Plaintiffs’ Motion for Leave to File Surreply Brief Opposing Motion to Sever and

Transfer (Docket No. 38) is GRANTED and the Court has considered the same; and
4.

Intervenor Western Energy Alliance’s Motion for Leave to File Sur-Reply to

Motion to Sever and Transfer (Docket No. 59) is GRANTED and the Court has considered the
same.

DATED: September 4, 2018
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 14