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Montana Wildlife Federation v. Zinke

United States District Court, D. Montana, Great Falls Division

November 6, 2018

MONTANA WILDLIFE FEDERATION; THE WILDERNESS SOCIETY; NATIONAL AUDUBON SOCIETY; NATIONAL WILDLIFE FEDERATION; and MONTANA AUDUBON, Plaintiffs,
v.
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,

          ORDER

          BRIAN MORRIS UNITED STATES DISTRICT COURT JUDGE

         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 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 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 sage-grouse.

         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] 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. 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 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 ...


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