Montana Wildlife Federation et al v. Zinke et al

Filing 62

ORDER: IT IS ORDERED that Defendants' 20 Motion to Sever the seven out-of-state claims is DENIED. IT IS ORDERED that Defendants' 20 Motion to Transfer the seven out-of-state claims is DENIED. SEE ORDER FOR FULL DETAILS. Signed by Judge Brian Morris on 11/6/2018. (SLR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV-18-69-GF-BMM
MONTANA WILDLIFE
FEDERATION; THE WILDERNESS
SOCIETY; NATIONAL AUDUBON
SOCIETY; NATIONAL WILDLIFE
FEDERATION; and MONTANA
AUDUBON,

ORDER

Plaintiffs,
vs.
RYAN ZINKE, in his official capacity
as Secretary if the Interior; DONATO
JUDICE, in his official capacity as
Montana Bureau of Land Management
Deputy State Director; UNITED
STATES BUREAU OF LAND
MANAGEMENT; and UNITED
STATES DEPARTMENT OF THE
INTERIOR,
Defendants,

Federal Defendants, Defendant-Intervenor State of Wyoming (“Wyoming”),
and Defendant-Intervenor Western Energy Alliance (“Western Energy”) seek to
sever and transfer a portion of this action to the location of the subject lands in the
federal district courts in Wyoming and Nevada. Federal Defendants have asked
this Court to sever the seven claims relating to leasing decisions in Wyoming and
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Nevada. (Doc. 20 at 2). Federal Defendants do not request transfer of the four
claims relating to leasing decisions in Montana. (Id.). The Court conducted a
hearing on these motions on September 18, 2018.
I. Background
The government amended ninety-eight federal land management plans for
ten Western states in 2015. (Doc. 19 at ¶¶ 2, 42-43; Doc. 21 at 13). These
resource management plan amendments (“2015 Plans”) represented an effort to
develop consistent “conservation measures for the protection of the greater-sage
grouse and its habitat” range-wide. See 76 Fed. Reg. 77,008, 77,009 (Dec. 9,
2011). The 2015 Plans designated lands as Priority Habitat Management Areas
and General Habitat Management Areas (“Habitat Areas”). (Doc. 40 at 10). Each
plan directed BLM to prioritize oil and gas leasing outside these Habitat Areas to
“limit future surface disturbance and encourage new development in areas that
would not conflict with” the greater sage-grouse. (Doc. 19 at ¶ 47).
BLM issued Instruction Memorandum 2016-143 (“2016 IM”) as guidance
on how the “BLM would exercise the Secretary of the Interior’s discretion with
regard to leasing activities in order to fulfill the conservation commitments in the
[2015] Plans” for the Habitat Areas.1 The 2016 IM directed BLM to adhere to the

1

BLM, Instruction Memorandum 2016-143, Implementation of Greater Sage-Grouse Resource Management Plan
Revisions or Amendments—Oil and Gas Development Sequential Prioritization (Sept, 1, 2016),
https://goo.gl/qhnCuv.

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2015 Plans. The 2015 Plans include a decision to “prioritize oil and gas leasing
and development outside of identified [Habitat Areas].” Id. at 3 (citing Rocky
Mountain ROD at 1-25; Great Basin ROD at 1-23).
The 2016 IM directed BLM State Offices to follow a specific “prioritization
sequence” for oil and gas leasing. Id. at 3-5. BLM’s prioritization sequence
instructed BLM to consider first leasing lands outside Habitat Areas and that
“these lands should be first priority for leasing in any given lease sale.” Id. at 4.
General Habitat areas were to be considered next, and Priority Habitat areas were
to be considered last. Id. The 2016 IM clearly directs BLM state offices to follow
the 2015 Plans and protect the Habitat Areas known to house the greater sagegrouse.
President Trump issued Executive Order 13783, Promoting Energy
Dependence and Economic Growth, in 2017. (Doc. 40 at ¶ 50). Secretary of the
Interior Ryan Zinke (“Secretary Zinke”) echoed President Trump’s energy
directive and issued Secretarial Order No. 3353 (“Zinke Memo”). (Id. at ¶ 51).
The Zinke Memo directs federal and state agencies to identify provisions in the
2015 Plans and associated policies that “may require modification or recession . . .
in order to give appropriate weight to the value of energy and other development of
public lands . . . and to be consistent with . . . American Energy Independence.”2

2

Office of the Secretary of the Interior, Secretarial Order 3353 at 5 (Aug. 4, 2017), https://goo.gl/EG5saz.

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The Zinke Memo further directed BLM, the Fish and Wildlife Service, and the
U.S. Geological Survey to provide a report with recommendations. Id.
BLM’s Washington D.C. Headquarters issued its report.3 The report
identifies opportunities to clarify BLM’s management under the 2015 Plans. The
listed opportunities include, among other things, taking “advantage of flexibility in
the 2015 [Plans] to support energy, mineral, and other development,” and
“allow[ing] adjustments to habitat boundaries . . .” Id. at 2. BLM suggests
rescinding “the National IM and develop . . . specific IMs that include all habitat
types . . . open for leasing” as a short-term option for lease prioritization. Id. at
Appx. A at 2. The BLM further recommended to “clarify to BLM staff that the
plans currently allow leasing in all Greater Sage-Grouse habitat categories.” Id.
BLM replaced the 2016 IM with Instruction Memorandum 2018-026 (“2018
IM”).4 The 2018 IM removed the prioritization sequence contained in the 2016
IM. The 2018 IM specifically states that “the BLM does not need to lease and
develop outside [Habitat Areas] before considering any leasing and development
within [Habitat Areas].” Id. at 1.
The claims before the Court hinge on this unambiguous change of policy
and its impact on conservation efforts for the greater sage-grouse habitats.

3

BLM, Report in Response to Secretarial Order 3353 (Aug. 4, 2017), https://goo.gl/gLc5U9.
BLM, Instruction Memorandum 2018-026, Implementation of Greater Sage Grouse Resource Management Plan
Revisions or Amendments—Oil & Gas Leasing and Development Prioritization Objective (Dec. 27, 2017),
https://www.blm/gov/policy/im-2018-026.
4

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Plaintiffs allege that Defendants Secretary Zinke, Donato Judice in his official
capacity as Montana Bureau of Land Management State Deputy Director, and the
BLM unlawfully disregarded previously understood, well-settled protections for
sage-grouse populations. Plaintiffs allege that BLM’s 2018 IM stands in direct
conflict with the 2015 Plans. (Doc. 19 at ¶¶ 87-91). The 2018 IM allegedly paved
the way for eleven “final” BLM oil and gas lease sales (four in Montana, four in
Wyoming, and three in Nevada) that collectively impact protected sage-grouse
habitats region-wide. (Doc. 19 at ¶¶ 62-85). Plaintiffs challenge these leasing
decisions, the Zinke Memo, and the 2018 IM as violating the 2015 Plans, the
Federal Land Policy and Management Act (“FLPMA”), the National
Environmental Policy Act (“NEPA”), and the Administrative Procedure Act.
(Doc. 19 at ¶¶ 86-117).
II. Discussion
Federal Defendants ask this Court to sever the out-of-state claims into two
separate civil actions pursuant to Federal Rule of Civil Procedure 21. Federal
Defendants allege that the out-of-state claims relate to separate administrative
decisions made by local BLM offices in Wyoming and Nevada. (Doc 21 at 17-18).
Federal Defendants seek to transfer these severed claims, pursuant to 28 U.S.C. §
1404, to the federal district courts in the states where BLM issued the leases.
(Doc. 21 at 19-21). The relief sought effectively would displace the pending case
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originally brought in the District of Montana, splinter it into three separate cases, to
be resolved in three separate federal district courts. The Court first must decide
whether Federal Defendants’ motion warrants severance in order to transfer the
out-of-state claims as Federal Defendants request.
A. Severance of Claims
District courts possess broad discretion when evaluating whether to sever
claims pursuant to Federal Rule of Civil Procedure 21. Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1297 (9th Cir. 2000). Claims against different parties may be
severed for trial or other proceedings if the court determines that the interests of
justice would be better served by severance. Initiative & Referendum Inst. v. U.S.
Postal Serv., 154 F. Supp.2d 10, 13 (D.D.C. 2001). Severance should be denied
where plaintiffs’ allegations allege a common series of transactions and
occurrences that raise common questions of law and fact applicable to all
defendants. See United Mine Workers v. Gibbs, 383 U.S. 715, 724 (1966).
The district court in Initiative & Referendum Inst, 154 F. Supp.2d 10, denied
a motion to sever eleven claims that related to issues outside the court’s
jurisdiction that plaintiffs had brought in the same complaint as claims within the
court’s jurisdiction. Plaintiffs challenged a USPS regulation that prohibited
gathering signatures for petitions on postal properties as applied to twelve postal
offices. Id. at 12. The defendants argued that severance would serve the interests
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of justice as they contended that each claim related uniquely to each relative postal
property. Id. at 13. The district court correctly acknowledged that “joinder rules
are interpreted to encourage the broadest possible scope of action consistent with
fairness to the parties” and that the “joinder of claims, parties and remedies is
strongly encouraged.” Id. (citing Gibbs, 383 U.S. at 724) (internal quotations
omitted).
The district court determined that the eleven out-of-state claims could not be
severed. Each allegation stemmed from a single USPS decision that banned
signature gathering on postal properties. Id. The district court understood that
severing the original case into multiple separate cases would produce both
duplicative litigation and “waste vast amounts of judicial and litigant resources.”
Id. Severance proved improper as each allegation raised a common question of
law attached to the single USPS decision. Id.
The district court similarly reasoned severance to be improper because each
allegation required a common factual inquiry into each distinct property. Id.
Severance would be improper on those circumstances as each allegation, though
applied to twelve unique postal properties, arose from a single common event. Id.
The interests of justice best would be served if the claims remained together to
allow a single district court to solve all of the similar claims by determining the

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validity of the single underlying USPS decision to ban signature gathering on
postal property. Id.
Federal Defendants do not argue that Plaintiffs’ claims improperly had been
joined. Federal Defendants instead allege that this Court should sever the seven
out-of-state claims because the claims relate to unique administrative decisions
made by three separate BLM offices in each of the three states. (Doc. 21 at 17).
Federal Defendants point to the fact that the challenged leasing decisions involve
unique parcels of land. Federal Defendants further note that separate BLM offices
outside Montana developed the administrative records that supported the
challenged leasing decisions. (Doc. 21 at 18). Federal Defendants suggest that
these variables, coupled with the administrative complexity, provide cause for
these claims to be severed and decided in the localities where the leased lands lay.
(Doc. 21 at 19).
This Court denied a similar motion to sever in W. Org. of Res. Councils v.
U.S. Bureau of Land Mgmt., 2017 WL 374705 (D. Mont. Jan. 25, 2017)
(“WORC”). There BLM conducted environmental analyses in multiple Western
states. Id. at *7. BLM reviewed and approved all of the analyses, however, in a
single ROD issued from its Washington D.C. headquarters. Id. The plaintiffs
challenged the BLM decision to approve the single ROD that affected multiple
areas. Id. at *5.
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The defendants similarly sought to sever the out-of-state claims on the
grounds that the out-of-state claims affected uniquely the local interests of
Wyoming. Id. This Court denied severance. The two environmental analyses in
Montana and Wyoming arose from the single decision of BLM to approve the
ROD that encompassed the analyses in Montana and Wyoming. Id.
This Court denies Federal Defendants’ current motion to sever the seven
out-of-state claims. Plaintiffs’ claims compare to the claims in USPS and WORC.
In those two cases, as here, Plaintiffs challenge a single action by a federal agency
that presents common questions of law and fact. Plaintiffs allege that the lease
sales at issue violate FLPMA because they follow the Zinke Memo and the 2018
IM. (Doc. 40 at 15). Plaintiffs do not challenge the individual leasing decisions.
Plaintiffs instead bring a facial challenge to the Zinke Memo and the 2018 IM with
separate as-applied challenges that involve the lease sales in three states. (Doc. 40
at 7).
Plaintiffs properly exercised their right to join “as many claims as it [had]
against an opposing party.” Fed. R. Civ. P. 18(a). Plaintiffs seek the broadest
practicable scope of relief and challenge the legality of the new policy that
supports each lease sale. Plaintiffs’ challenge presents a strategic choice that will
relieve the judicial system of multiple cases involving the same questions of law

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and fact. Accordingly, this Court will deny Federal Defendants’ motion to sever
the seven out-of-state claims to ensure judicial economy.
B. Transfer
“For the convenience of the parties and witnesses, in the interests of justice,
a district court may transfer any civil action to any other district court 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). A transfer proves proper “to prevent the
waste of time, energy and money and to protect litigations, witnesses and the
public against unnecessary inconvenience and expense.” Van Dusen v. Barrack,
376 U.S. 612, 616 (1964) (quotations omitted). The party seeking transfer bears
the burden of demonstrating that the transferee districts provide a more appropriate
forum. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 499 (9th Cir. 2000).
Courts possess broad discretion to transfer cases, but must consider the factors of
convenience and fairness. Id. at 498.
A district court’s consideration of a transfer pursuant to § 1404(a) involves
two steps. A district court first must decide whether the action originally could
have been brought in the proposed transferee districts. Hatch v. Reliance Ins. Co.,
758 F.2d 409, 414 (9th Cir. 1985). If the answer is yes, then the district court must
make an individualized, case-specific, analysis of convenience and fairness to the
parties and witness, and an assessment of the interests of justice. See Jones, 211
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F.3d at 498-99. This assessment incorporates multiple factors, including: (1) the
convenience of the parties and witnesses; (2) familiarity of each forum with the
applicable law; (3) the plaintiffs’ 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. Id.
1. Step One: Where the Action Might Have Been Brought
The Court first must evaluate whether this action might have been brought in
the District of Wyoming or the District of Nevada. Hatch, 758 F.2d at 414. Venue
proves proper in a civil action against an official or agency of the United States
under any of the following circumstances: (1) when brought in a judicial district
where a defendant in the action resides; (2) 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 (3) where the plaintiff resides if the action
involves no real property. 28 U.S.C. § 1391(e)(1).
Federal Defendants claim that the transferee District of Wyoming and
District of Nevada represent proper venues. Federal Defendants first note that
BLM operates offices in both of the other districts. Federal Defendants next
contend the decision-making processes occurred in the transferee districts. And
finally, the Federal Defendants argue the properties subject to those decisions sit in
those transferee districts. (Doc. 21 at 20). This Court disagrees and adopts the
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analysis in W. Watersheds Project v. Zinke, 2018 WL 4210774 (D. Idaho Sept. 4,
2018), from the United States District Court for the District of Idaho.
At the outset, it should be noted that the law remains unsettled whether
“federal government defendants reside in every judicial district in which an agency
has a regional office.” W. Watersheds Project, 2018 WL 4210774, at *4; 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). The Seventh Circuit in Reuben H. Donnelly
Corp. v. Federal Trade Comm'n, 580 F.2d 264, 267 (7th Cir. 1978), explained that
“to 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” as
most federal agencies likely maintain offices in “most, if not all, judicial districts.”
See California v. Bureau of Land Mgmt., 2018 WL 3439453, at *3 (N.D. Cal.
2018). The more prudent course for purposes of § 1391(e) leads to the conclusion
that federal agency defendants reside in the District of Columbia where agency
headquarters are located and where they make agency decisions. See Zhang v.
Chertoff, 2008 WL 5271995, at *3 (N.D. Cal. 2008) (citing Williams, 2001 WL
1352885 at *1; Reuben, 580 F.2d at 267).
Venue with respect to a federal officer or employee remains proper in the
place of their official residence—in other words, where they perform their official
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duties. See Reuben, 580 F.2d at 266, n.3. Here, neither BLM itself nor any of the
individual Federal Defendants reside in Wyoming or Nevada. The District of
Montana represents a proper venue because two of the five Plaintiffs—Montana
Wildlife Federation and Montana Audubon—are based in the District of Montana.
(Doc. 40 at 22).
Next, §1391(e)(1)(B) directs that venue proves proper if (1) a “substantial
part of the events . . . giving rise to the claim” took place in the proposed transferee
districts, or (2) that a “substantial part of the property that is the subject of the
action” sits in the proposed transferee districts. 28 U.S.C. §1391(e)(1)(B). The
fact that the federal government leased oil or gas development rights to nongovernmental entities inside state boundaries does not necessarily satisfy these
criteria here. Plaintiffs do not challenge how a local BLM office handled a lease
sale. Plaintiffs challenge, rather, the 2018 IM and the Zinke Memo that allowed
the leasing decisions.
Plaintiffs contend that Federal Defendants violated federal law in issuing
these oil and gas leases through reliance on the 2018 IM and the Zinke Memo by
“disregarding established mandates for the way oil and gas lease sales are handled
on public lands that affect sage-grouse habitat populations.” W. Watersheds
Project, 2018 WL 4210774, at *4. These claims belie characterization as a
“generic challenge” to an agency action of the type proscribed by Lujan v.
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National Wildlife Fed’n, 497 U.S. 871 (1990). Plaintiffs’ claims follow the legal
and geographic contours of the challenged federal actions. W. Watersheds Project,
2018 WL 4210774, at *5. These legal and geographic contours follow “a very
large pattern which is not random in nature.” Id. This pattern traces the
consequences of the alleged unlawful national directives in the form of local lease
sales in Montana, Wyoming, and Nevada. As a result, “the possible transfer of the
action in whole or in pieces to some other federal court or courts stumbles at the
gate.” Id.
2. Convenience, Fairness, and Interests of Justice
The Court still will examine the other factors that inform a possible change
in venue. A plaintiff’s choice of forum is entitled to deference. Lou v. Belzberg,
834 F.2d 730, 739 (9th Cir. 1987). Federal Defendants must make a “strong
showing” of inconvenience to warrant upsetting that choice. Decker Coal Co. v.
Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Federal
Defendants cite three factors in support of their argument for transfer: (1) the need
to have localized controversies decided at home; (2) to promote consistency among
court rulings; and (3) to relieve court congestion in the District of Montana. (Doc.
21 at 21-29).
The Court assumes that state-specific interests arise in the discussion of oil
and gas lease sales. (Doc. 21 at 21-26). The subject-matter of this lawsuit,
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however, proves much more expansive than any as-applied challenge to a
particular lease decision. Plaintiffs allege that the lease sales at issue share a
common defect in the form of the violation of federal law stemming from revised
national directives. Plaintiffs allege that these directives, in turn, result in
cumulative impacts that threaten sage-grouse range-wide. (Doc. 40 at 23-29).
Plaintiffs do not raise claims specific to any particular transferee district. W.
Watersheds Project, 2018 WL 4210774, at *6. Likewise, nothing about the fact
of the underlying lease sales and any corresponding local interest in these lease
sales “raises a compelling argument in favor of transfer.” Id. In short, the leases
may be local, but the challenged national directives that allowed for the leases
present less parochial concerns.
The district court in W. Watersheds Project v. Salazar, 2009 WL 1299626
(D. Idaho May 7, 2009), considered a similar situation involving federal agency
actions related to sage-grouse management. The plaintiff alleged overarching
NEPA and FLPMA violations that affected sage-grouse range-wide. Id.
The district court explained that “the issues do not break down neatly into home
judicial districts.” Id. at *3. Whether BLM considered the cumulative impact of
factors acting in a widespread area stretching beyond mere land boundaries
represented the key issue. Id.

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The district court explained that the plaintiff’s allegations would “require a
court to analyze effects beyond the borders of its judicial districts.” Id. This
requirement forced the district court to afford “less weight” to the traditional desire
“to let disputes be resolved in their home court.” Id. The district court recognized
that the resolving court likely would be “considering cumulative impacts in other
judicial districts.” Id.
Plaintiffs’ arguments guide this Court to the same conclusion. Plaintiffs
make an as-applied challenge to the national directives implemented across many
Western states. (Doc. 40 at 23). The issues presented may not break down neatly
into home judicial districts. Like in Salazar, a key issue in this case involves the
national directives’ cumulative impact to the “habitats necessary to support greater
sage-grouse populations [that] do not conform to state lines.” (Doc. 40 at 25).
This Court’s analysis and single decision efficiently will encompass the cumulative
impacts of the allegedly unlawful national directives to sage-grouse habitats
beyond the borders of Montana.
Federal Defendants propose that breaking this case into multiple pieces and
spreading it elsewhere would prevent inconsistent rulings. (Doc. 21 at 26-28).
Plaintiffs challenge the legality of the national directives. Keeping this case in the
District of Montana avoids the risk of inconsistent rulings rather than creating such
a risk as Federal Defendants contend. As this Court already has acknowledged, a
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case in the District of Idaho presents similar issues. W. Watersheds Project, 2018
WL 4210774. This fact also offers little reason to consider splitting this case up
into even more possible conflicting judgements.
As a final point, “whether transfer would relieve congestion in the transferor
district misses the point.” Id. at *7. As the District of Idaho opined, “[a]ny 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.” Id. Nothing
in the record indicates, and the supporting documents fail to show, “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.” Id.
In balancing these factors, the Federal Defendants failed to meet their
burden to show that transferring this case in multiple parts to the proposed
transferee districts would be proper.

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ORDER
Accordingly, IT IS ORDERED that Defendants’ motion to sever (Doc. 20)
the seven out-of-state claims is DENIED. IT IS ORDERED that Defendants’
motion to transfer (Doc. 20) the seven out-of-state claims is DENIED.
DATED this 6th day of November, 2018.

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