Oklahoma Independent Petroleum Association et al v. Department of the Interior et al

Filing 18

ORDER DENYING TRANSFER re: pldg. ( 1 in MDL No. 2629) The motion to transfer, pursuant to 28 U.S.C. 1407, is DENIEDSigned by Judge Sarah S. Vance, Chair, PANEL ON MULTIDISTRICT LITIGATION, on 6/9/2015. Associated Cases: MDL No. 2629, OKN/4:14-cv-00307, OKN/4:14-cv-00721, TXW/7:14-cv-00050 (dn)

UNITED STATES JUDICIAL PANEL
on
MULTIDISTRICT LITIGATION

IN RE: LESSER PRAIRIE-CHICKEN
ENDANGERED SPECIES ACT LITIGATION

MDL No. 2629

ORDER DENYING TRANSFER

Before the Panel:* The federal government defendants1 (the Government) in the three
actions listed on the attached Schedule A move under 28 U.S.C. § 1407 to centralize this litigation
in either the Northern District of Oklahoma or the District of District of Columbia. Two of the three
actions, Oklahoma Independent Petroleum Association (OIPA) and Defenders of Wildlife
(Defenders), are pending in the Northern District of Oklahoma, and the third action, Permian Basin
Petroleum Association (PBPA), is pending in the Western District of Texas.
Plaintiffs in Defenders support centralization in the District of District of Columbia.2 The
OIPA and PBPA plaintiffs oppose centralization, as do intervenor defendants in Defenders.3 If the
Panel orders centralization over their objections, then the OIPA plaintiffs and intervenor defendants
in Defenders argue for selection of the Northern District of Oklahoma as transferee district.

*

Judge Lewis A. Kaplan took no part in the decision of this matter.

1

Federal government defendants are U.S. Department of the Interior; U.S. Fish and Wildlife
Service (FWS); S.M.R. Jewell, in her official capacity as Secretary of the Interior; Daniel M. Ashe,
in his official capacity as director of FWS; Gary Frazier, in his official capacity as FWS’s assistant
director for ecological services; and Jonna Polk, in her official capacity as field supervisor of FWS’s
Oklahoma ecological services field office.
2

The Defenders plaintiffs are Defenders of Wildlife, the Center for Biological Diversity, and
WildEarth Guardians.
3

The OIPA plaintiffs, which are also among the intervenor defendants in Defenders, are
Oklahoma Independent Petroleum Association, Oklahoma Oil and Gas Association, International
Association of Geophysical Contractors, Independent Petroleum Association of America, American
Petroleum Institute, and Western Energy Alliance. The other intervenor defendants in Defenders
are National Rural Electric Cooperative Association, Western Association of Fish and Wildlife
Agencies, Colorado Farm Bureau, Kansas Farm Bureau, New Mexico Farm & Livestock Bureau,
Texas Farm Bureau, and American Farm Bureau Federation. The PBPA plaintiffs are Permian Basin
Petroleum Association and four counties in New Mexico: Chaves County, Roosevelt County, Eddy
County, and Lea County.

-2These actions, as well as, to some extent, two actions (State of Oklahoma and Hutchison)
pending in the District of District of Columbia,4 involve challenges to the merits of the U.S. Fish and
Wildlife Service’s March 21, 2014, listing of the Lesser Prairie-Chicken as “threatened” under the
Endangered Species Act.
On the basis of the papers filed and the hearing session held, we deny the Government’s
motion. The Government’s motion encompasses only three actions pending in two districts, and the
resolution of these actions will involve only very limited pretrial proceedings. Discovery, if any, will
be minimal, as these cases will be decided on the administrative record. And motion practice will
consist of motions regarding that record and summary judgment motions or petitions for review.
Moreover, in PBPA, the time for filing motions related to the record already has passed, and
summary judgment motions are due to be fully briefed within a matter of weeks. We are not
convinced that centralization under Section 1407 is warranted in these circumstances.
IT IS THEREFORE ORDERED that the motion for centralization of these actions is denied.

PANEL ON MULTIDISTRICT LITIGATION

Sarah S. Vance
Chair
Marjorie O. Rendell
Ellen Segal Huvelle
Catherine D. Perry

4

Charles R. Breyer
R. David Proctor

In February of this year, we transferred the State of Oklahoma and Hutchison actions from
the Northern District of Oklahoma to the District of District of Columbia for inclusion in MDL No.
2165, In re: Endangered Species Act Section 4 Deadline Litigation. See MDL No. 2165 Transfer
Order (J.P.M.L. Feb. 5, 2015) (ECF No. 132). In so doing, we declined the Government’s request
that certain claims in those actions be separated and remanded to the transferor court. The
Government argued that those claims concerned only the merits of the Lesser Prairie-Chicken listing
decision. In denying separation and remand, we explained that the parties disagreed over which
claims implicated only the merits of the listing decision, and concluded that the transferee judge, the
Honorable Emmet G. Sullivan, was in the best position to determine if remand of those claims was
warranted. Following transfer, the Government moved for a suggestion of remand, but Judge
Sullivan denied the motion.

IN RE: LESSER PRAIRIE-CHICKEN
ENDANGERED SPECIES ACT LITIGATION

MDL No. 2629

SCHEDULE A

Northern District of Oklahoma
OKLAHOMA INDEPENDENT PETROLEUM ASSOCIATION, ET AL. v.
DEPARTMENT OF THE INTERIOR, ET AL., C.A. No. 4:14-00307
DEFENDERS OF WILDLIFE, ET AL. v. JEWELL, ET AL., C.A. No. 4:14-00721
Western District of Texas
PERMIAN BASIN PETROLEUM ASSOCIATION, ET AL. v.
DEPARTMENT OF THE INTERIOR, ET AL., C.A. No. 7:14-00050