United States District Court, D. Montana
A. HOWELL, CHIEF JUDGE.
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”), 5 U.S.C. §§ 551 et
seq., and the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321 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. According to the plaintiffs, the
hunt puts at risk the “hunters, local property owners,
residents, and guests” in the vicinity of Beattie
Gulch. Id. ¶ 1. 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 of Montana, pursuant to 28 U.S.C.
§ 1404(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. Moreover, because the plaintiffs fail to
demonstrate the exigency necessary to justify granting a
motion for a temporary restraining order, that motion is
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 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, 16 U.S.C.
§ 26 (“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.
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.” Id. ¶
3. Lynn created the other plaintiff in this case, Neighbors
Against Bison Slaughter, in response to this alleged danger.
Id. ¶ 17. 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. Id. ¶¶ 18-22.
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.
Id. at 4. 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.
Id. at 4; 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).
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 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.
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.” Id.
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. Id. 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. Id. at 6 (“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 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.” Id. at 10.
ensure adequate coordination between IBMP members, operating
procedures are published each year that “outline the
actions necessary to implement the [IBMP].”
Id. at 2. In late December of 2018, the 2019 Winter
Plan was approved by representatives from the eight IBMP
members. Id. at 1. 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.” Id. at 3.
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.
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
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.
may be transferred to any district where venue is also proper
“[f]or the convenience of parties and witnesses, in the
interest of justice.” 28 U.S.C. § 1404(a);
Atl. Marine Constr. Co. v. United States Dist.
Court, 571 U.S. 49, 59 (2013) (“§ 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., 487 U.S. 22, 29 (1988) (quoting Van
Dusen v. Barrack, 376 U.S. 612, 622 (1964)). The
discretion conferred by this statute “is broad”
but “not untrammeled.” Fine v. McGuire,
433 F.2d 499, 501 (D.C. Cir. 1970); In re Scott, 709
F.2d 717, 720 (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, 512 F.2d 918, 925 (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., 587 F.2d 1149, 1154 (D.C. Cir. 1978)
(citing Time, Inc. v. Manning, 366 F.2d 690, 698
(5th Cir. 1966)).
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.” 28 U.S.C. § 1404(a); Atl.
Marine, 571 U.S. at 59; Jones v. Gasch, 404
F.2d 1231, 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.” 28 U.S.C. § 1391(e)(1). Both
plaintiffs are residents of Montana, see Compl. at
1, and challenge 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. 28 U.S.C. § 1404(a).
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.” 28 U.S.C. § 1404(a); see, e.g.,
Stewart Org., 487 U.S. at 29 (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,
330 U.S. 501, 508-09 (1947) (outlining public and private