United States District Court, D. Montana, Great Falls Division
MONTANA WILDLIFE FEDERATION; THE WILDERNESS SOCIETY; NATIONAL AUDUBON SOCIETY; NATIONAL WILDLIFE FEDERATION; and MONTANA AUDUBON, Plaintiffs,
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,
MORRIS UNITED STATES DISTRICT COURT JUDGE
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.
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).
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  Plans” for the Habitat
Areas. 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).
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.
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.” The Zinke Memo
further directed BLM, the Fish and Wildlife Service, and the
U.S. Geological Survey to provide a report with
Washington D.C. Headquarters issued its report. 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
replaced the 2016 IM with Instruction Memorandum 2018-026
(“2018 IM”). 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.
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 ¶¶
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.
Severance of Claims
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 ...