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Aland v. Kempthorne

December 11, 2007

ROBERT H. ALAND, PLAINTIFF,
v.
DIRK KEMPTHORNE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

I. Introduction

This matter is before the Court on Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a), filed by H. Dale Hall, U.S. Fish and Wildlife Service Director, and Dirk Kempthorne, Secretary of the Interior (collectively "Federal Defendants") on September 4, 2007. Defendants seek to transfer the case to the District of Idaho for the sake of judicial economy, convenience, and so the present case may be coordinated with a related case pending in the United States District Court for the District of Idaho. Plaintiff filed an objection to the Motion to Transfer and Defendants filed a reply in support of their Motion. I allowed Plaintiff to file a short sur-reply, which I have read and considered. For the following reasons, Defendants' motion is granted and the case shall be transferred to the District of Idaho.

II. Background

This cause of action arises out of a challenge to the U.S. Fish and Wildlife Service's ("FWS") grizzly bear Final Rule ("Final Rule"). 72 Fed. Reg. 14866 et seq. (Mar. 29, 2007) (to be codified at 50 C.F.R. pt. 17). The Final Rule, effective April 30, 2007, designated grizzly bears in the Greater Yellowstone Area ("GYA") and surrounding area as a distinct population segment ("DPS") pursuant to 16 U.S.C. § 1532(16) and thereby removed that DPS from the list of threatened and endangered species under the Endangered Species Act of 1973 ("ESA"), as set forth in 50 C.F.R. § 17.11. On August 2, 2007, Plaintiff filed this suit for declaratory and preliminary and permanent injunctive relief under the citizen suit provision of the ESA, 16 U.S.C. § 1540(g)(1), and the Administrative Procedure Act ("APA"), 5 U.S.C §§ 551-706, seeking to declare invalid and enjoin the implementation of the Final Rule.

Plaintiff, who resides in Illinois, regularly enjoys visits to the GYA, including areas known to be inhabited by grizzly bears. Between 1998 and the present, Plaintiff has visited the GYA on almost a monthly basis, staying for six to ten days or more at a time. Over the past few years, Plaintiff has been active in seeking to protect and preserve the habitat for the grizzly bears through financial and physical endeavors. Plaintiff submitted initial written comments in February 2006 to FWS in opposition to the proposed de-listing of the grizzly bears, and he supplemented those initial comments throughout 2006 and 2007. Following the issuance of the Final Rule, which removed the DPS of grizzly bears in the GYA from the list of threatened and endangered species under the ESA, Plaintiff filed this lawsuit complaining: (1) FWS erroneously concluded that grizzly bears have recovered in the GYA; (2) FWS's designation of the grizzly bears as a DPS violated the ESA and FWS policy; (3) FWS failed adequately to consider the present or threatened destruction, modification or curtailment of grizzly bears' habitat or range in the GYA; (4) FWS failed adequately to consider overutilization of grizzly bears in the GYA; (5) FWS failed adequately to consider disease or predation that threatens grizzly bears in the GYA with extinction; (6) FWS failed adequately to consider the inadequacy of existing regulatory mechanisms that threaten grizzly bears in the GYA with extinction; (7) FWS failed adequately to analyze other natural or manmade factors that threaten grizzly bears' continued existence in the GYA; (8) FWS might have erroneously and unlawfully used factors other than the best available scientific and commercial data to delist grizzly bears in the GYA; (9) peer review in the de-listing rulemaking was fundamentally flawed; (10) FWS erroneously and unlawfully failed to adhere to mandatory procedural requirements for de-listing grizzly bears in the GYA; (11) the public comment period was fundamentally flawed; and (12) grizzly bears in the GYA will suffer irreparable harm if they are allowed to be hunted beginning in Fall 2007.

On June 4, 2007, a number of environmental groups also filed a complaint for declaratory and injunctive relief challenging the Final Rule in the District of Idaho. See Complaint for Declaratory and Injunctive Relief, Western Watersheds Project v. Servheen, No. 07-cv-243 (Jun. 4, 2007). In Western Watersheds, the defendants include the two Federal Defendants named here, as well as Christopher Servheen, FWS's Grizzly Bear Recovery Coordinator, and the FWS itself (collectively "Idaho Defendants"). The Idaho Defendants filed their Answer on August 9, 2007. A number of parties are currently seeking either intervenor or amicus status in the District of Idaho litigation.*fn1 The Plaintiffs in Western Watersheds similarly challenge the FWS' designation of the GYA grizzly bears as a DPS and the Final Rule removing that DPS from the federal list of endangered and threatened wildlife. Both the Plaintiff here and the Plaintiffs in Western Watersheds seek a declaration that the FWS' Final Rule violates the ESA and/or the APA. Plaintiff(s) in both cases also seek to enjoin the FWS from designating the grizzly bears in the GYA as a DPS and from removing that DPS from the protected ESA list.

Federal Defendants filed their motion to transfer this case to the District of Idaho over concern that litigation on the merits of the Final Rule in two different forums could result in inconsistent orders. They also argue that litigation of the same Final Rule in two forums needlessly wastes judicial resources. And, they request transfer to the District of Idaho because Western Watersheds was filed there first.

III. Standard

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. 28 U.S.C. § 1404(a). Section 1404(a) places discretion with this court to adjudicate motions for transfer according to "individualized, case-by-case consideration of convenience and fairness." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The relevant factors the district court should consider are: the preference given to plaintiff's choice of forum; convenience of the parties, counsel, and witnesses; the location of the record; and the interest of justice. 15 Charles A. Wright, Arthur R. Miller & E. Cooper, Federal Practice and Procedure § 3848-54 (2d. ed. 1986). The language of § 1404(a) does not indicate the relative weight to be accorded to each factor. Coffey, 796 F.2d at 220 n.3.

IV. Discussion

A. Proper Venue

The threshold consideration in a Section 1404(a) motion is that there must be an "other district . . . where [the action] might have been brought." See Van Dusen, 376 U.S. at 616. Venue is proper in any judicial district in which: (1) 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 the property that is the subject of the action is situated; or (3) the plaintiff resides if no real property is involved in the action. 28 U.S.C. § 1391(e) (governing venue in civil actions against federal officers and agencies). Neither party disputes that venue is proper in Illinois pursuant to § 1391(e)(3). However, venue may be proper in more than one district because, under § 1391(e)(2), "there may be several districts that qualify as a situs of such 'substantial' activities." David D. Siegel, Commentary on 1988 and 1990 Revision of Section 1391, 28 U.S.C.A. § 1391 (1993) at 9.

Federal Defendants argue that a substantial part of the events giving rise to the claims occurred in the District of Idaho because the geographic location of the GYA grizzly bear DPS includes eastern Idaho.*fn2 Also, the FWS held one of four open houses during the proposal period of the Final Rule in Idaho in order to collect and consider comments before issuing the final order. 70 Fed. Reg. at 69854.*fn3 Plaintiff argues that these events do not fall within the ambit of what was intended by ยง 1391(e)(2) and suggests instead that the language "substantial part of the events or omissions" more readily certifies Washington, ...


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