UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

NEIGHBORS AGAINST BISON SLAUGHTER, et al.,

Plaintiffs, Civil Action No. 19-cv-3144 (BAH)

v. Chief Judge Beryl A. Howell

NATIONAL PARK SERVICE, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiffs Neighbors Against Bison Slaughter and Bonnie Lynn filed this lawsuit against

the National Park Service, the Department of Agriculture (“USDA”), and three government

officials claiming they violated the Administrative Procedure Act (“APA”),

et

seq., and the National Environmental Policy Act (“NEPA”),

et seq., when

they allegedly authorized an annual bison hunt in Southern Montana at a location on the edge of

Yellowstone National Park called Beattie Gulch. See Compl. ¶ 4, ECF No. 1.1 According to the

plaintiffs, the hunt puts at risk the “hunters, local property owners, residents, and guests” in the

vicinity of Beattie Gulch.

. Montana’s bison hunting season begins November 15, 2019

and the plaintiffs have requested a temporary restraining order and preliminary injunction to

enjoin the hunt while their APA and NEPA claims are sorted out. See generally Pls.’ Mot. for a

Temp. Restraining Order and a Prelim. Inj., ECF No. 4. In response, the defendants request that

this case, including plaintiffs’ requests for interim injunctive relief, be transferred to the District

1 The three individuals named as defendants in their official capacities are David Bernhardt, the Secretary of the Interior, Cam Sholly, the Superintendent of Yellowstone National Park, and Sonny Perdue, the Secretary of the USDA. Compl. ¶¶ 20–22.

1 of Montana, pursuant to

(a) (allowing transfer “[f]or the convenience of parties

and witnesses [and] in the interest of justice”). Defs.’ Mot. to Transfer (“Defs.’ Mot.”) at 1,

ECF. No. 13; Defs.’ Reply in Supp. of Defs.’ Mot (“Defs.’ Reply”) at 13, ECF No. 37. In

accordance with the expedited schedule proposed by the parties, the briefing on the pending

motions was completed on November 8, 2019. For the reasons explained in more detail below,

given the long-standing coordinated plan among federal, state, tribal and local government

authorities that may be significantly affected by this action, the Court concludes that transfer to

the District of Montana best serves the interest of justice and, therefore, grants the defendants’

transfer motion.2 Moreover, because the plaintiffs fail to demonstrate the exigency necessary to

justify granting a motion for a temporary restraining order, that motion is denied.

I. BACKGROUND

Every winter, when the snows begin to bury the grasses of Yellowstone National Park’s

mountains, the bison herd heads for lower ground in search of food. Compl. ¶ 2. Many of the

Bison leave the park and enter “a quarter-mile-square area at the mouth of Beattie Gulch” in

2 The plaintiffs argue that their motion for a temporary restraining order and preliminary injunction should take priority over the defendants’ motion to transfer, Pls.’ Resp. to Fed. Des.’ Mot. to Transfer Venue (“Pls.’ Opp’n”) at 3, ECF No. 32, citing a statutory instruction for courts to “expedite the consideration of . . . any action for temporary or preliminary injunctive relief,”

(a). This argument is without merit for several reasons. First, the cited statute prescribes the kinds of motions that should receive expedited consideration, not the order in which motions must be decided. Second, the defendants’ request for expedited consideration of their motion to transfer venue was granted, pursuant to the same statute on which plaintiffs rely, which empowers a court to “expedite the consideration of . . . any other action if good cause therefor is shown.”

(a); Min. Order (Oct. 28, 2019) (granting the defendants’ motion to expedite). Thus, the two motions for a preliminary injunction and transfer are on equal footing, and this Court has chosen to consider the defendants’ motion to transfer first. The cases plaintiffs cite are not to the contrary. Pls.’ Opp’n at 3–6 (citing Comm. on Ways and Means, U.S. House of Representatives v. U.S. Dep’t of the Treasury, No. 19-cv-01974,

, at *2 (D.D.C. Aug. 29, 2019) (explaining that Section 1657 “left it to the courts to ‘determine the order in which civil actions are heard and determined’”); Tinnus Enters., LLC v. Telebrands Corp., No. 6:17-cv-00170-RWS,

, at *2 (E.D. Tex. Jul. 16, 2018) (refusing to stay enforcement of an injunction on account of a motion for transfer that was filed after the injunction was granted); Concerned Rosebud Area Citizens v. Babbitt,

(D.D.C. 1999) (resolving a motion to transfer before resolving a motion for a preliminary injunction)). Finally, as discussed infra, in Part III.B, given the important local interests in having the challenged hunt’s fate decided in Montana, acceding to the plaintiffs’ urging to resolve their entitlement to injunctive relief before consideration of transfer, would put the proverbial “cart before the horse” and make little sense.

2 Gardiner, Montana. Id. ¶¶ 2, 15. Beattie Gulch sits within the Custer-Gallatin National Forest,

an enormous swath of federal land hugging Yellowstone National Park’s northwest corner. Pls.’

Points and Auths. in Support of Their Mot. for a Temp. Restraining Order and a Prelim. Inj.

(“Pls.’ Mem.”) at 6, ECF No. 4-1. Hunting is forbidden within Yellowstone,

(“All hunting . . . is prohibited within the limits of [the] park.”), but in 2005, after a 14-year

hiatus, Montana reopened a bison hunt just outside park boundaries in Beattie Gulch. Pls.’ Mot.,

Ex. C (“Letter from Montana Wildlife”) at 1, ECF 4-11. Over time, the hunt has grown in both

the number of bison killed and the number of hunters participating. Pls.’ Mem. at 12. While

Montana citizens are authorized to hunt under the laws of that state, at least six tribal

governments now also conduct their own hunts, claiming the right under various treaties to do so

on open and unclaimed federal lands within Montana. See Br. of Amici Curiae in Support of

Fed. Defs.’ Corrected Opp’n to Pls.’ Mot. for a Temp. Restraining Order and Prelim. Inj.

(“Amicus Br.”) at 1, ECF No. 31.3

Plaintiff Bonnie Lynn owns land and a few cabins across the street from Beattie Gulch.

Compl. ¶ 15. She worries that “[s]ooner or later,” the intensifying hunt “is going to kill

someone.”

. Lynn created the other plaintiff in this case, Neighbors Against Bison

Slaughter, in response to this alleged danger.

. The plaintiffs, both Montana residents,

lay the blame for the risks posed by the hunt at the feet of two federal agencies, the NPS and

USDA, and three federal officials, the Secretary of the Interior, the Secretary of Agriculture, and

the Superintendent of Yellowstone National Park.

¶¶ 18–22.

3 This is not to suggest that the Tribes have only recently started hunting bison in Beattie Gulch. Native American Tribes, many of whom are amici in this case, aver that they have hunted bison “in the Greater Yellowstone Ecosystem since time immemorial.” Amicus Br. at 11.

3 That hunt, now the focus of this suit, is part of a decades-long, multi-agency, and multi-

jurisdictional project to manage the bison population. Once on the brink of extinction, beginning

in the 1960s the bison herd began to grow rapidly and so did the risk that the bison would

transmit diseases to cattle grazing outside Yellowstone. Pls.’ Mot., Ex. H (“Fed. ROD”) at 3–4,

ECF No. 4-16. In the early 1990s, anxious to prevent the infection of livestock, the State of

Montana and several federal agencies agreed to work together toward a comprehensive bison

management scheme.

. Federal-state cooperation, however, was not always smooth and,

in 1995, Montana sued the National Park Service and the Animal and Plant Health Inspection

Service (“APHIS”), an agency within the USDA.

; Montana v. Babbitt, No. 6:95-cv-6 (D.

Mont. Jan. 17, 1995). The state and federal agencies settled by committing to a schedule for the

completion of a “long-term bison management plan and environmental impact statement.” Fed.

ROD at 4. Pursuant to the settlement agreement, Montana’s lawsuit was stayed until the plan

was finished. Order (Nov. 20, 1995), Montana v. Babbitt, No. 6:95-cv-6 (D. Mont.). In late

2000, with the aid of mediation before a magistrate judge in the District of Montana, the

Interagency Bison Management Plan (“IBMP”) and accompanying environmental impact

statement were published. Order (Jan. 9, 2001), Montana v. Babbitt, No. 6:95-cv-6 (D. Mont.)

(dismissing the case); Fed. ROD at 1 (noting that the final “Environmental Impact Statement and

Bison Management Plan” were published on December 20, 2000); Fed. ROD at 15 (explaining

that Montana had published its own environmental impact statement on November 15, 2000).

Although the IBMP was negotiated between and initially executed by state and federal

officials, the management of the plan has since grown to include tribal governments. Eight

organizations make up the IBMP’s governing body: APHIS, NPS (specifically Yellowstone

administrators), the United States Forest Service (“USFS”) (specifically administrators in the

4 Custer-Gallatin National Forest), the Montana Fish, Wildlife & Parks Department, the Montana

Department of Livestock (including the Montana State Veterinarian), the Confederated Salish &

Kootenai Tribes, the InterTribal Buffalo Council, and the Nez Perce Tribe (collectively “IBMP

Members”). Pls.’ Mot., Ex. D (“2019 Winter Plan”) at 1, ECF No. 4-12. The IBMP structures

the coordination between these organizations in order to meet bison management priorities.

Since its adoption, the IBMP has been updated periodically by the IBMP Members

through a process called “adaptive management.” Pls.’ Mot., Ex. E (“2011 Adaptive Mgmt.

Adjs.”) at 1, ECF 4-13. These periodic adjustments are intended to allow the plan to adapt to the

ever-changing on-the-ground reality of the herd’s movement and size, but “are intended to be

applied within the framework of the IBMP and not alter its basic management direction or

goals.”

Adjustments include changing the areas in which bison are allowed to roam and

altering the techniques used to keep the bison population within prescribed numbers.

at 1–2.

One such technique is the capture of bison within Yellowstone and their distribution to

slaughterhouses throughout the country. 2019 Winter Plan at 11. The hunt is another tool.

(“The IBMP members, through the adaptive management process, have agreed that the harvest

of bison will be a preferred method for managing their abundance and distribution to the extent

possible.”). Montana and the various tribal governments each manage their own hunts, ”); Defs.’

Opp’n to Pls.’ Mot. (“Defs.’ Opp’n”), Ex. 2 (“Tribal Mem. of Agreement”) at 1, ECF No. 25-2

(tribal agreement creating rules to ensure “regular, predictable, safe, and respectful bison hunt in

Beattie Gulch”); Defs.’ Opp’n, Ex. 4 (“MT Hunting Regs.”) at 1-4, ECF No. 25-4 (describing

Montana’s bison hunting regulations). All IBMP Members, however, work in concert to ensure

that the number of bison killed in the hunt aligns with population goals. 2019 Winter Plan at 7-8

(“The IBMP partners will work together to coordinate trapping and hunting activities to achieve

5 reasonable . . . [d]istribution of bison . . . throughout the northern and western management areas

in Montana.”). Indeed, NPS has agreed to limit its capture of bison so as to “support tribal and

state hunting.”

.

To ensure adequate coordination between IBMP members, operating procedures are

published each year that “outline[] the actions necessary to implement the [IBMP].”

. In

late December of 2018, the 2019 Winter Plan was approved by representatives from the eight

IBMP members.

. Plaintiffs focus their claims on the 2019 Winter Plan. Compl. ¶¶ 59,

63, 68, 72(a)-(c). Over eight months after publication of the 2019 Winter Plan, the plaintiffs, in

August 16, 2019, informed Yellowstone’s Superintendent and the Custer-Gallatin National

Forest’s Supervisor of their belief that the USFS, NPS, and USDA “have violated federal law by

failing to impose reasonable restrictions on the migration and hunting of wild bison in Beattie

Gulch.” Pls.’ Resp. to Fed. Defs.’ Mot. to Transfer (“Pls.’ Opp’n”), Ex. A (“Demand Letter”) at

1, ECF No. 32-1. Neither agency acceded to the plaintiffs’ demand to “immediately suspend the

upcoming hunting season (2019-20) in Beattie Gulch.”

. Consequently, almost three

months later, the plaintiffs filed suit in this Court on October 21, 2019, Compl. at 1, followed

two days later, by their filing of a motion for a temporary restraining order and a preliminary

injunction “to stop this winter’s hunt.” Pls.’ Mot. at 3.

After being ordered to confer and propose a briefing schedule, Min. Order (Oct. 23,

2019), the parties agreed that the defendants would have until October 31 to respond to the

plaintiff’s motion for preliminary relief and that the plaintiffs would have until November 8 to

file any reply. Proposed Scheduling Order at 1, ECF No. 12-1; Min. Order (Oct. 25, 2019)

(setting briefing schedule). On October 25, 2019, the same day the parties proposed a briefing

schedule, the defendants moved to transfer this case to the District of Montana and to expedite

6 consideration of that motion. Defs.’ Mot. at 1; Defs.’ Mot. to Expedite Consideration of Defs.’

Mot. to Transfer Venue at 2, ECF No. 14. The motion to expedite was granted and the plaintiffs

were ordered to respond to the transfer motion by November 4 and the defendants were given

until November 8 to reply, should they wish. Min. Order (Oct. 28, 2019). Since entry of the

scheduling order, the Confederated Salish and Kootenai Tribes of the Flathead Reservation, the

Nez Perce Tribe, the Confederated Tribes of the Umatilla Indian Reservation, and the

Confederated Tribes and Bands of the Yakama Nation, all tribes that participate in the bison

hunt, have been granted leave, without any objection from the parties, to file an amicus curiae

brief in support of the defendants. Min. Order (Nov. 1, 2019). Late on November 8, the last of

the authorized briefing was submitted. Defs.’ Reply at 13 (filed at 8:01 p.m.); Pls.’ Reply Br. in

Supp. of their Mot. for a Temp. Restraining Order and a Prelim. Inj. (“Pls.’ Reply”) at 25, ECF

No. 38 (filed at 10:17 p.m.). This matter is now ripe for consideration.

II. LEGAL STANDARD

A case may be transferred to any district where venue is also proper “[f]or the

convenience of parties and witnesses, in the interest of justice.”

(a); Atl.

Marine Constr. Co. v. United States Dist. Court,

(2013) (Ҥ 1404(a) does not

condition transfer on the initial forum’s being ‘wrong’ . . . it permits transfer to any district

where venue is also proper (i.e., ‘where [the case] might have been brought’) or to any other

district to which the parties have agreed by contract or stipulation.”). The Supreme Court has

explained that “Section 1404(a) is intended to place discretion in the district court to adjudicate

motions for transfer according to an ‘individualized, case-by-case consideration of convenience

and fairness.’” Stewart Org., Inc. v. Ricoh Corp.,

(1988) (quoting Van Dusen v.

Barrack,

(1964)). The discretion conferred by this statute “is broad” but “not

7 untrammeled.” Fine v. McGuire,

(D.C. Cir. 1970); In re Scott,

(D.C. Cir. 1983) (“[T]here are limits to the broad discretion accorded courts under section

1404(a).”). “[T]ransfer in derogation of properly laid venue” in the District of Columbia “must

. . . be justified by particular circumstances that render the transferor forum inappropriate by

reference to the considerations specified in that statute.” Starnes v. McGuire,

(D.C. Cir. 1974). “Section 1404(a) provides for transfer to a more convenient forum, not to a

forum likely to prove equally convenient or inconvenient.” Van Dusen, 376 U.S. at 645–46.

The movant bears the burden of persuasion that transfer of an action is proper. See SEC v. Savoy

Indus., Inc.,

(D.C. Cir. 1978) (citing Time, Inc. v. Manning,

(5th Cir. 1966)).4

III. DISCUSSION

The first step in resolving a motion for transfer of venue under § 1404(a) is to determine

whether the proposed transferee district is one where the action “might have been brought.”

(a); Atl. Marine,

; Jones v. Gasch,

, 1237 n.25 (D.C.

Cir. 1967) (“[C]ivil cases may be transferred only to a district or division wherein jurisdiction

and proper venue obtain.”). In actions raising a federal question by naming as a defendant a

federal agency or United States official in his or her official capacity, venue is proper in any

judicial district where (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 property that is the subject

of the action is situated;” or (3) a “plaintiff resides if no real property is involved in the action.”

(e)(1). Both plaintiffs are residents of Montana, see Compl. at 1, and challenge

4 Although the plaintiffs assert that the defendants must make their case for transfer by “clear and convincing evidence,” Pls.’ Opp’n at 9 (citing N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am.,

, 113–14 (2d Cir. 2010)), that standard has never been articulated as the law in this Circuit. That burden is evidently applied in the Second Circuit, but rarely outside it. See 15 WRIGHT & MILLER, FED. PRAC. & PROC. § 3848 n.24 (4th ed. 2019).

8 federal agency actions involving the bison hunt in Beattie Gulch located in the District of

Montana, id. ¶ 2. Wisely, the plaintiffs thus do not contest that they “could also have filed this

case” in Montana. Pls.’ Opp’n at 9. Having cleared that first hurdle, consideration of which

forum best serves the convenience of the parties and witnesses (should there be any) and the

interest of justice is the focus of the remainder of this discussion.

(a).

In resolving motions to transfer venue under Section 1404(a), courts have analyzed

several private and public-interest factors, which elucidate the concerns implicated by the two

express statutory factors of the “convenience of parties and witnesses” and “the interest of

justice.”

(a); see, e.g., Stewart Org.,

(noting that motion to

transfer under this statute “calls on the district court to weigh in the balance a number of case-

specific factors”); accord Gulf Oil Corp. v. Gilbert,

, 508–09 (1947) (outlining

public and private interests to be considered in the analogous forum non conveniens inquiry).

The private-interest factors are addressed first, followed by the public-interest factors.

A. Analysis of Private-Interest Factors

At the outset, the parties dispute which private-interest factors are relevant to this inquiry

and the weight to be given those factors. The defendants recite six factors which have been

applied for over two decades in this Court. Defs.’ Mem. in Supp. of Defs.’ Mot. (“Defs.’

Mem.”) at 9, ECF No. 13-1 (citing Trout Unlimited v. United States Dep’t of Agric.,

(D.D.C. 1996)). Those factors are: “(1) the plaintiff’s choice of forum; (2) the

defendant’s choice of forum; (3) where the claim arose; (4) the convenience of the parties;

(5) the convenience of the witnesses; [and] (6) the ease of access to sources of proof.” Md.

Digital Copier v. Litig. Logistics, Inc.,

, 95 (D.D.C. 2019). Use of these

factors has crystalized in this District, without being expressly condoned by the Supreme Court

9 or the D.C. Circuit. The now-rote six-factor test seems to have originated instead from treatises

and out-of-circuit case law. See Trout Unlimited,

& nn.4–9 (citing Jumara v.

State Farm Ins. Co.,

(3d Cir. 1995) (enumerating private and public interests

highlighted in 1A PT.2 JAMES W. MOORE & BRETT A. RINGLE, FED. PRAC. ¶ 345, at 4446 (2d ed.

1995) and 15 WRIGHT & MILLER, FED. PRAC. & PROC. § 3848, at 385 (2d ed. 1986)); and

WRIGHT & MILLER, §§ 3848, 3851 at 385, 420–22 (2d ed. 1986)).

The plaintiffs, on the other hand, point to Atlantic Marine, the Supreme Court’s most

recent discussion of the transfer statute. There, the Supreme Court remarked, drawing wholesale

from that Court’s forum non conveniens precedents, that “[f]actors relating to the parties’ private

interests include ‘relative ease of access to sources of proof; availability of compulsory process

for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility

of view of premises, if view would be appropriate to the action; and all other practical problems

that make trial of a case easy, expeditious and inexpensive.’” Atl. Marine,

n.6

(citing Piper Aircraft Co. v. Reyno,

, 241 n.6 (1981)); see also Gulf Oil Corp., at

508–09 (outlining same factors to be considered in forum non conveniens inquiry). In so doing,

the Supreme Court confirmed that the same factors relevant in the forum non conveniens context

to overcome the ordinarily strong presumption in favor of the plaintiff’s choice of forum apply to

the decision whether a case should be transferred. See Atl. Marine,

(“[B]oth

§ 1404(a) and the forum non conveniens doctrine from which it derives entail the same

balancing-of-interests standard.”); Norwood v. Kirkpatrick,

, 30–32 (1955)

(observing that “the relevant factors have” not changed under transfer statute); Scott,

(instructing that, under transfer statute, “[i]n reaching its decision, a court must give due

regard to the factors traditionally associated with the doctrine of forum non conveniens”); Fine,

10

(concluding that transfer statute “still requires the court to give consideration to

the traditional factors” under forum non conveniens).

At the same time, given the difference in the severity of the outcome between outright

dismissal under forum non conveniens and mere transfer to an alternative forum, the Supreme

Court has acknowledged that “[d]istrict courts were given more discretion to transfer under

§ 1404(a) than they had to dismiss on grounds of forum non conveniens.” Piper Aircraft,

; see also Norwood,

(explaining that Section 1404(a) “permit[s] courts

to grant transfers upon a lesser showing of inconvenience” than would justify dismissal under

forum non conveniens, but “[t]his is not to say that the relevant factors have changed or that the

plaintiff's choice of forum is not to be considered, but only that the discretion to be exercised is

broader”); Jones,

n.25 (noting that “a lesser showing of inconvenience warrants

a transfer than can justify a dismissal” under the related doctrine of forum non conveniens).

Thus, though the defendants need not show the same level of inconvenience as for dismissal

under forum non conveniens, the factors underlying that doctrine provide the test for transfer

under Section 1404(a).

To be sure, the Atlantic Marine private-interest factors derived from the doctrine of forum

non conveniens significantly overlap with four of the six factors regularly used in this District.

Nevertheless, this conclusion that Atlantic Marine’s private-interest factors should be used in

assessing transfer of venue has important ramifications for the parties’ dispute over the weight

that must be afforded the plaintiffs’ choice of forum. While this Court’s generally-used private-

interest set of factors clumps the plaintiff’s and defendant’s differing forum choices among the

six factors to be considered, this may lead to an incorrect assessment of the deference due to the

plaintiff’s choice. Instead, the test under the transfer statute is more appropriately framed to

11 focus on whether the presumption in favor of the plaintiff’s choice of forum is overcome by

consideration of all relevant public and private-interest factors pointing to the alternative forum

as more convenient and in service of the interest of justice for resolution of the merits. See Van

Dusen,

(“Congress, in passing [§] 1404(a), was primarily concerned with the

problems arising where, despite the propriety of the plaintiff's venue selection, the chosen forum

was an inconvenient one.”).

Defendants posit bluntly that, due to their residency in Montana, “plaintiffs’ choice of

forum is not entitled to deference.” Defs.’ Mem. at 9 (capitalization altered). This is incorrect.

As the Supreme Court made clear in Atlantic Marine, courts must “give some weight to the

plaintiffs’ choice of forum.” Atl. Marine,

n.6 (citing Norwood,

);

see also Savoy Indus., 587 F.2d at 1154–55 (“There can be no doubt that a plaintiff's choice of

forum is entitled to at least some weight.” (citing Menard v. Mitchell,

, 488 n.3

(D.C. Cir. 1970) and Gulf Oil Corp.,

); MBI Grp., Inc. v. Credit Foncier Du

Cameroun,

(D.C. Cir. 2010) (noting, in forum non conveniens context,

“[t]here is a substantial presumption in favor of a plaintiff’s chosen forum.” (internal quotation

marks omitted)).

The defendants rely on cases ascribing less weight to a plaintiff’s choice of forum when

this “forum has no meaningful ties to the controversy and no particular interest in the parties or

subject matter.” W. Watersheds Proj. v. Pool,

(D.D.C. 2013) (quoting

Sierra Club v. Flowers,

(D.D.C. 2003)); see Defs.’ Mem. at 9 (citing W.

Watersheds Proj.,

). According to defendants, that is particularly true when

transfer is sought “to the plaintiffs’ resident forum.” Defs.’ Mem. at 10 (quoting Pres. Soc’y of

Charleston v. U.S. Army Corps of Eng’rs,

(D.D.C. 2012) (quoting Airport

12 Working Grp. Of Orange Cty., Inc. v. Dep’t of Def.,

(D.D.C. 2002))).

This proposition is on sounder ground. As the Supreme Court has explained, “a plaintiff's choice

of forum is entitled to greater deference when the plaintiff has chosen the home forum” since

“[w]hen the home forum has been chosen, it is reasonable to assume that this choice is

convenient.” Piper Aircraft, 454 U.S. at 255–56. By contrast, “[w]hen the plaintiff is foreign

. . . this assumption is much less reasonable” and “a foreign plaintiff's choice deserves less

deference.”

; see also Pain v. United Techs. Corp.,

(D.C. Cir. 1980)

(finding, in forum non conveniens context, that presumption in favor of plaintiffs’ choice of

forum in wrongful death action arising from helicopter crash off the coast of Norway does not

“come[] into play with maximum force” when only one of nineteen plaintiffs was American

citizen and none were a resident of chosen forum). Accordingly, the plaintiffs’ choice to bring

suit in the non-resident forum of Washington, D.C. is afforded “some weight” and consideration

of the remaining factors identified by the Supreme Court will be against that backdrop. Atl.

Marine,

n.6.

The first three Atlantic Marine private-interest factors—access to sources of proof,

witnesses, and view of the property at issue—play little role here since the claims asserted arise

under the APA and NEPA and, consequently, this case will be decided on an administrative

record. See Pres. Soc’y of Charleston,

(“[T]he convenience of witnesses

and the ease of access to sources of proof, are neutral with respect to transfer” when the case will

be decided on the basis of an administrative record.); see also Sierra Club v. Van Antwerp,

(D.D.C. 2007). More precisely, the plaintiffs’ claims hinge on whether the

defendants are required to undertake a new environmental impact study and whether they are

arbitrarily and capriciously implementing the statutes they are empowered to execute. Compl.

13 ¶¶ 54–71. Resolution of these claims will not turn on the testimony of witnesses and thus the

first three factors are neutral and do not outweigh in any way the presumption favoring the

plaintiffs’ forum choice.

Considering the final factor, “all other practical problems that make trial of a case easy,

expeditious and inexpensive,” Atl. Marine,

n.6, plaintiffs point out that their pro

bono counsel has its offices in Washington, D.C. Pls.’ Opp’n at 16. Yet, “the location of

counsel carries little, if any, weight in an analysis under § 1404(a).” State v. U.S. Army Corps of

Eng’rs,

(D.D.C. 2018) (quoting Reiffin v. Microsoft Corp.,

, 52 n.7 (D.D.C. 2000)); Tower Labs., Ltd. v. Lush Cosmetics Ltd.,

(D.D.C. 2018) (same). On the other hand, plaintiffs reside in Montana, and while driving to

the local federal courthouse may take several hours, Pls.’ Opp’n at 15, the drive likely pales in

comparison to the expense and time consumed by traveling from Montana to the District of

Columbia. Moreover, several non-parties have expressed interest in this case. Amicus Br. at i.

The amici tribes, from Montana, Idaho, Washington, and Oregon,

would also likely find

travel to a neighboring or nearby state easier than across the country should their attendance at

any hearings in this matter be necessary or desired. The defendants have suggested that the State

of Montana may also “seek to participate in this litigation in some fashion.” Defs.’ Mem. at 12

n.2. It has not sought to do so yet, but Montana’s intimate involvement with the IBMP means

this claim is not farfetched. This factor thus slightly favors transfer.

In sum, the first three Atlantic Marine factors are irrelevant to this case while the fourth

factor tilts somewhat toward transfer. The slight private benefit to the potential convenience of a

potential intervenor, however, is not enough to overcome the weight that must be accorded the

14 plaintiffs’ choice of forum. The private-interest factors thus weigh against transfer to the District

of Montana.

B. Analysis of Public-Interest Factors

Even though the private-interest factors weigh in favor of keeping this case in plaintiffs’

chosen forum, consideration of the compelling public-interest factors warrants transfer. Courts

look to three factors in evaluating the public interest: (1) “the interest in having the trial of a

diversity case in a forum that is at home with the law”; (2) “the administrative difficulties

flowing from court congestion”; and (3) “the local interest in having localized controversies

decided at home.” Atl. Marine,

n.6. These factors align with the public-interest

factors generally used in this Court. See W. Watersheds Proj., 306 F. Supp. 3d at 356 (describing

the public-interest factors as “(1) the local interest in making local decisions regarding local

controversies; (2) the relative congestion of the transferee and transferor courts; and (3) the

potential transferee court’s familiarity with the governing law” (quoting United States v. H & R

Block, Inc.,

(D.D.C. 2011))).

The first factor “is generally applied in cases that implicate state law, with which federal

courts are not equally familiar.” Oceana v. Bureau of Ocean Energy Mgmt.,

(D.D.C. 2013). Given that this case has not come to federal court based on the parties’

diversity, the typical formulation of this factor is not helpful. Brought under the APA and

NEPA, resolution of plaintiffs’ claims will involve the interpretation of those and other federal

laws with which this Court and the District of Montana are presumed to be equally familiar.

Nevertheless, the import of this factor is to consider the comparative familiarity with the pending

issues of the alternative jurisdictions. Here, the District of Montana likely has more familiarity

with the issues surrounding bison management on federal lands within Montana. Indeed, the

15 IBMP was the product of a lawsuit between Montana and various federal agencies in that court.

See Part I, supra. Defendants have also pointed out that the District of Montana recently

considered another case addressing bison hunting that raised similar claims of violations of

NEPA on the part of NPS and USDA. Defs.’ Mem. at 13 (citing Compl., Cottonwood Envtl.

Law Ctr. v. Zinke, 18-cv-12 (D. Mont. Feb. 20, 2019)). If anything, given the District of

Montana’s familiarity with the legal arrangements between tribal, state, and federal governments

surrounding bison management, the first public-interest factor weighs in favor of transfer. Foote

v. Chu,

(D.D.C. 2012) (describing the first factor as also concerning

“the pendency of related actions in [the transferee] forum”).

The defendants correctly concede that the second factor regarding comparative

congestion of the courts, is “largely neutral.” Defs.’ Mem. at 14; see Parsons v. Chesapeake &

Ohio Ry. Co.,

(1963) (“[A] trial judge weighing the interests of justice could

legitimately consider the condition of his court's docket an important factor.”). The district

courts in Montana and the District of Columbia have similar numbers of pending civil cases per

active judge. Montana had 664 pending cases when last reported and three active judges, for a

rough average of just over 221 cases per judge. Judicial Business 2018, Administrative Office of

the U.S. Courts, Table C, U.S. Dist. Courts—Civ. Cases Commenced, Terminated, and Pending

During the 12-Month Periods Ending September 30, 2017 and 2018, at 4.5 This Court had 3,525

pending cases and 15 active judges for a rough average of 235 cases per judge. Id. at 1. In

addition, the median time between the filing and disposition of a case in this Court is 5.8 months

while it is 10.1 months in Montana. Judicial Business 2018, Administrative Office of the U.S.

Courts, Table C-5, U.S. Dist. Courts—Median Time Intervals from Filing to Disposition of Civ.

5 Available at https://www.uscourts.gov/sites/default/files/data_tables/jb_c_0930.2018.pdf.

16 Cases Terminated, by District and Method of Disposition, During the 12-Month Period Ending

September 30, 2018, at 1, 56; see also Foote,

(relying on median time

from filing to disposition in analyzing the second factor). These differences are so minimal as to

render this factor neutral.

Finally, the third factor regarding the local interest in having localized controversies

decided at home so strongly favors transfer to Montana as to render the other factors relatively

insignificant. As described supra, in Part I, the IBMP is the product of decades of negotiation

between Montana, federal agencies, and Native American Tribes that wish to exercise their

treaty hunting rights in Montana. The adaptive management procedures adopted under the IBMP

call for on-the-ground analysis of the ever-changing bison population and migration patterns and

require constant coordination between the eight IBMP Members. The decision whether to grant

the plaintiffs a preliminary injunction, moreover, will affect Montana citizens most directly,

either by relieving them of the dangers to property and person the hunt allegedly poses by

preventing the hunt this winter or by allowing the hunt to go forward as planned. W. Watersheds

Proj.,

(transferring when “[t]he implications of a decision resolving [the]

dispute will be felt most acutely” in the transferee district). These considerations militate

strongly in favor of transferring this case to Montana.

The plaintiffs contend that because the bison migrate from Yellowstone, which is within

the judicial district of Wyoming,

, this case is not local to Montana. Pls.’ Opp’n

at 18–19. Plaintiffs, however, have centered their allegations not around bison migration within

Yellowstone, but around the hunt at Beattie Gulch. Compl. ¶ 72. Specifically, they take aim at

the 2019 Winter Plan, which bears the signatures of representatives from the IBMP Members

6 Available at https://www.uscourts.gov/sites/default/files/data_tables/jb_c5_0930.2018.pdf.

17 each of whom lives in or near Montana. 2019 Winter Plan at 1. Moreover, the injuries plaintiffs

allege are all local: “The . . . hunt has stopped Ms. Lynn from renting her vacation rental cabins

during the winter, lowered her property values, prevented her from using her properties for

family visits, and caused her emotional trauma.” Compl. ¶ 16. Speaking for Neighbors Against

Bison Slaughter, Lynn worried that the hunt “threaten[s] the safety and peace of the

neighborhood[,] . . . creates a public safety hazard, risks the lives of the neighbors and their

property, and upsets [their] way of life.” Compl. ¶ 17. The hunt, in a small corner of Montana,

is thus an intensely local affair, even if it is the product of a multi-jurisdictional management

plan.

The plaintiffs also argue, relying heavily on another case in this Court involving

Yellowstone, that the park’s national significance favors venue in Washington, D.C. Pls.’ Opp’n

at 20–21. In Greater Yellowstone Coal. v. Kempthorne, concerning the use of snowmobiles in

Yellowstone, this Court retained jurisdiction in part because “conserving the scenery, natural

objects and wildlife of that park is a matter of great national importance.” No. 07-cv-2111,

at *6 (D.D.C. Apr. 24, 2008) (unpublished). Unlike in that case, however, the

plaintiffs here do not sue in an attempt to “protect[] and enhance[] . . . the National Park

System,” undoubtedly an issue of national significance.

. The complaint in this case is

preoccupied with the danger the hunt poses for “hunters, local property owners, residents, and

guests” only at Beattie Gulch. Compl. ¶ 1.

Moreover, the same judge that decided the case on which plaintiffs rely later explained

that transfer was not appropriate in Greater Yellowstone Coal. because it did not present a

situation in which “the only nexus to the District of Columbia [was] the fact that federal agencies

involved in the decision-making are located here.” Niagara Preservation, Coal., Inc. v. FERC,

18

(D.D.C. 2013) (transferring when “many of the decisions regarding the

[challenged] Project were made in New York by . . . various state agencies”). The argument for

retaining venue in this case is perhaps even less compelling—the only involvement of officials in

Washington, D.C. in the design of the 2019 Winter Plan and in bison management operations

more generally, is speculative at best. Plaintiffs suggest that former Secretary of the Interior

Ryan Zinke, who resigned two weeks before the 2019 Winter Plan was published, was

personally involved in the decisionmaking process by pointing to two articles in which the

former Yellowstone Superintendent mused that he may have been fired over his and the

Secretary’s differing views surrounding bison management. Pls.’ Opp’n at 22 (citing Edward

O’Brien, Yellowstone Park Chief Blames Bison Politics for His Departure, Yellowstone Public

Radio (Aug. 9, 2018)7 and Matthew Brown, Yellowstone Boss Says Trump Administration

Forcing Him Out, Associated Press (June 7, 2018)8).

Even were that speculation accurate, those articles do not aid the plaintiffs because they

only describe a disagreement between the former secretary and the former superintendent about

the number of bison the park could sustain, not about whether hunting should be a part of the

IBMP or the details of the 2019 Winter Plan. Those details were worked out between Montana

state officials, tribal governments, and federal officials in or near Montana. 2019 Winter Plan at

1. Moreover, the fact that a particular policy may have been overseen by an official in

Washington, D.C. “is a factor to be considered,” but is not dispositive. Starnes,

(noting that the possibility that litigation surrounding “a national policy issue . . . may involve

testimony by the policymakers” is particularly relevant); see also Shawnee Tribe v. United

States,

, 25–26 (D.D.C. 2002) (“[M]ere involvement on the part of federal

7 Available at https://www.mtpr.org/post/yellowstone-park-chief-blames-bison-politics-his-departure. 8 Available at https://www.apnews.com/24808bac6ff445998da7254d5b299ced.

19 agencies, or some federal officials who are located in Washington D.C. is not determinative.”);

Pac. Mar. Ass’n v. N.L.R.B.,

(D.D.C. 2012) (transferring case to Oregon

when, “although the decision at issue in [the] action was made in Washington, D.C., ‘any role

played by officials in the District of Columbia is overshadowed by the fact that their decisions

were based on work done by government employees’ in Oregon,” (quoting Airport Working Grp.

of Orange Cty., Inc.,

)).

The tribes participating as amici curiae are deeply invested in their ability to continue to

hunt bison in Beattie Gulch for cultural and subsistence purposes. Amicus Br. at 3. The State of

Montana has an interest in regulating bison hunting within its boundaries. The citizens

concerned about the hunt’s intensity are citizens of Montana. Many of the citizens who will be

denied the chance to hunt if plaintiffs succeed are from Montana as well. The plaintiffs’ choice

to have this important local dispute be resolved hundreds of miles from its center risks

undermining the important interests animating the Supreme Court’s view that local controversies

are best resolved locally. Gulf Oil Corp.,

(“In cases which touch the affairs of

many persons, there is reason for holding the trial in their view and reach rather than in remote

parts of the country where they can learn of it by report only.”). Thus, transferring this case to

the District of Montana best serves “the interest of justice.”

(a).9

9 The plaintiffs also requested a temporary restraining order (“TRO”) and a preliminary injunction under Federal Rule of Civil Procedure 65. FED. R. CIV. P. 65(a) (addressing preliminary injunctions) and (b) (addressing TROs). By its terms, issuance of a TRO requires “specific facts . . . clearly show[ing] that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and” consequently, “the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.” FED. R. CIV. P. 65(b)(1)(A)–(B). Here, the plaintiffs’ actions belie the need for “immediate” action contemplated for issuance of a TRO, by waiting for almost eight months to seek relief after the 2019 Winter Plan had been adopted and several months after their concerns were relayed to federal government authorities. Moreover, the plaintiffs’ filings have not made the requisite “clear[] show[ing]” of immediate irreparable harm. In their TRO motion, the plaintiffs note that the 2019 Winter Plan “starts the hunting season [on] November 15, 2019” but concede that “hunting will not ultimately start until deep snow forces the bison” into Beattie Gulch. Pls.’ Mot. at 2. Indeed, in other filings they admit that “no bison are currently leaving Yellowstone” and “any closure of Beattie Gulch would currently impact no one.” Pls.’ Opp’n at 3. More to this point, they reveal that “[l]ast winter . . . bison did not exit Yellowstone north to Beattie Gulch until months into 2019.”

Aside

20 IV. CONCLUSION

For the foregoing reasons, the Court finds that transfer to the District of Montana is in the

interest of justice and warranted under

(a). Accordingly, the defendants’

motion to transfer venue is GRANTED. In addition, the plaintiffs’ motion for a temporary

restraining order is DENIED.

An appropriate Order accompanies this Memorandum Opinion.

Date: November 14, 2019

__________________________ BERYL A. HOWELL Chief Judge

from vague assertions that “[t]he weather could turn any moment,” Pls.’ Mot. at 3; Pls.’ Opp’n at 3 (“The weather could turn any time.”), there is no evidence that any preliminary injunctive relief cannot wait until the District of Montana has had the opportunity to consider the merits of the plaintiffs’ motion for a preliminary injunction. The TRO motion is thus DENIED. The plaintiffs’ motion for a preliminary injunction, made in the same document as their TRO motion, Pls.’ Mot. at 1, and their related Motion to Strike, ECF No. 33, however, are TRANSFERRED to the District of Montana along with the remainder of this case.

21