W. Watersheds Project v. Tidwell, 17–cv–1063 (KBJ)

• Decision Date: 20 November 2017
• Docket Number: No. 17–cv–1063 (KBJ),17–cv–1063 (KBJ)
• Citation: 306 F.Supp.3d 350
• Parties: WESTERN WATERSHEDS PROJECT, et al., Plaintiffs, v. Thomas L. TIDWELL, Chief, U.S. Forest Service, et al., Defendants.
• Court: U.S. District Court — District of Columbia

306 F.Supp.3d 350

WESTERN WATERSHEDS PROJECT, et al., Plaintiffs,

v.Thomas L. TIDWELL, Chief, U.S. Forest Service, et al., Defendants.

No. 17–cv–1063 (KBJ)

United States District Court, District of Columbia.

Signed November 20, 2017

Elizabeth Leigh Lewis, Eric Robert Glitzenstein, Meyer Glitzenstein & Eubanks LLP, Washington, DC, William Stewart Eubanks, II, Meyer Glitzenstein & Eubanks LLP, Fort Collins, CO, for Plaintiffs.

Lauren Danielle Adkins, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

KETANJI BROWN JACKSON, United States District Judge

Plaintiffs Western Watersheds Project, Sierra Club, Wyoming Wildlife Advocates, and Gallatin Wildlife Association (collectively, "Plaintiffs") object to the state of Wyoming's use of a feeding site on federal land to conduct a supplemental feeding program for wild elk in the northwestern part of Wyoming. Environmental organizations have previously had limited success in court challenges to supplemental elk feeding initiatives that the federal government (specifically, the U.S. Fish and Wildlife Service and the National Park Service) planned to undertake within Wyoming's National Elk Refuge. See Defenders of Wildlife v. Salazar , 698 F.Supp.2d 141 (D.D.C. 2010), aff'd , 651 F.3d 112 (D.C. Cir. 2011). The instant lawsuit involves a different challenge: Plaintiffs here contest the U.S. Forest Service's issuance of a special-use authorization permit that allows a Wyoming state agency —the Wyoming Game and Fish Commission—to undertake supplemental elk feeding activities on the Alkali Creek Feedground in the Bridger–Teton National Forest. (See Compl., ECF No. 1, ¶ 1.) Plaintiffs have filed the instant action against the Chief of the U.S. Forest Service (Thomas Tidwell) and the Secretary of Agriculture (Sonny Perdue) in their official capacities, claiming that the issuance of the permit violates the Administrative Procedure Act ("APA") and the National Environmental Policy Act ("NEPA"). (See id. ¶¶ 4–6, 15–16.)¹

Before this Court at present is a motion that Defendants have filed, seeking to transfer the venue of the instant action to the District of Wyoming. (See Defs.' Mot. to Transfer Venue and Mem. in Supp. of Defs.' Mot. to Transfer Venue ("Defs.' Mot."), ECF No. 8; see also Defs.' Reply in Supp. of Mot. to Transfer Venue ("Defs.' Reply"), ECF No. 14.) Defendants argue that Plaintiffs' choice of forum is not entitled to the usual deference because of the attenuated ties of the instant dispute to the District of Columbia, and that transfer of venue is appropriate because localized controversies should be decided at home. (See Defs.' Mot. at 9–11, 13–14.)² Plaintiffs oppose the transfer motion, arguing that just like three previous cases related to "the Jackson elk herd," this case, too, should be resolved in the federal courts of the District of Columbia. (See Pls.' Opp'n to Defs.' Mot. to Transfer Venue ("Pls.' Opp'n"), ECF No. 13, at 8–18.)³

For the reasons explained fully below, and after due consideration of the various private and public interest factors pertaining to transfer, this Court has concluded that the agency action that is at issue in this case has its locus in Wyoming, such that transfer to the District of Wyoming is lawful and appropriate and would promote the interests of justice. Accordingly, Defendants' motion to transfer will be GRANTED , and this action will be TRANSFERRED to the District of Wyoming.

I. BACKGROUND

A. Supplemental Feeding Of Elk On Federal Lands In Wyoming

The supplemental feeding of elk began in northwestern Wyoming in the early 1900s in response to large-scale dying of elk in the wintertime. (See Compl. ¶ 30; Final Record of Decision, Long Term Special Use Authorization for the Wyoming Game and Fish Commission to Use National Forest System Land for their Winter Elk Management Activities at Alkali Creek Feedground (December 1, 2015) ("Final ROD"), Ex. A to Defs.' Mot., at 2). Feedgrounds also serve the purpose of preventing elk from roaming onto private lands and damaging stored crops. (See Compl. ¶ 31; Final ROD at 2.) The state of Wyoming has relied on feedgrounds since the 1930s, when Wyoming state statutes began to impose liability on the state—and specifically, on the Wyoming Game and Fish Commission ("WGFC")—for property damage caused by roaming elk herds. (See Final ROD at 2.)⁴ Thus, feeding areas are often "strategically placed on and near National Forest System lands" to draw the elk migration routes away from private property. (Id. ) Today, the WGFC conducts supplemental elk feeding at twenty-one feedgrounds and one staging area; eight of those locations are situated on National Forest System lands. (See id. )

Notably, the use of the feedgrounds on National Forest System lands requires authorization from the U.S. Forest Service ("Forest Service"). See 36 C.F.R. § 251.50(a) ("Before conducting a special use [of such lands], individuals or entities must submit a proposal to the authorized officer and must obtain a special use authorization from the authorized officer[.]"). Under the NEPA, prior to providing a special use authorization permit, the Forest Service must prepare an Environmental Impact Statement ("EIS") that evaluates the environmental impact of its decision and must also "issue ‘a concise public record of decision[,]’ " which is hereinafter referred to as an "ROD." (Compl. ¶ 23 (quoting 40 C.F.R. § 1505.2 ).)

B. The WGFC's Use Of Feedgrounds In The Bridger–Teton National Forest

At issue here is the Alkali Creek Feedground, which is located in the Bridger–Teton National Forest in northwestern Wyoming. (Id. ¶ 1.) There are several different feedgrounds that host the WGFC's elk feeding activities inside the Bridger–Teton National Forest, and the Forest Supervisor of the Bridger–Teton National Forest is the Forest Service official who bears the responsibility of deciding whether or not to authorize supplemental feeding activities on those feedgrounds. (See Final ROD at 3.)

Significantly for present purposes, in 2008, the Forest Supervisor issued a Final EIS and signed an ROD that authorized the WGFC's elk feeding activities in five feedgrounds other than the Alkali Creek Feedground, but postponed the decision regarding the Alkali Creek Feedground to allow for additional analysis. (See id. at 2–3.) More than six years later, on January 23, 2015, the Forest Supervisor finally addressed the Alkali Creek Feedground, by releasing a Final Supplemental EIS and a draft ROD that proposed to authorize the WGFC's use of that feedground. (See Compl. ¶ 46; Final ROD at 3.) The draft ROD prompted a number of written objections, including from several of the Plaintiff organizations in the instant case. (See Compl. ¶ 54; Final ROD at 3.)

Despite those objections, on December 15, 2015, Forest Supervisor Patricia M. O'Connor issued the Final ROD outlining her decision to allow the WGFC to use the Alkali Creek Feedground for its supplemental feeding program. (See Final ROD at 1.) O'Connor reasoned that the use of the feedground was appropriate "because State-operated feedgrounds on National Forest System lands reduce damage to haystack yards and winter pastures on private lands, maintain elk population numbers, and reduce commingling of elk and livestock that can lead to brucellosis transmission." (Id. at 5.) At the same time, O'Connor's final ROD recognized that supplemental feeding programs can be problematic for various reasons, including the fact that such programs play a role in contributing to the spread of chronic wasting disease among elk. (See id. ) Accordingly, the ROD stated that the 2008 special use permit that had been issued to the WGFC with respect to the other feedgrounds in the Bridger–Teton National Forest would be amended to include the Alkali Creek Feedground, but that "this amendment [would] not occur until the [state's] Chronic Wasting Disease Management Plan update is completed and a review by the Forest Supervisor finds that the plan adequately addresses risks and management options for feedgrounds on National Forest System lands." (Id. at 4.) O'Connor also instructed the Forest Service to "review the management practices of all feedgrounds on the [Forest] annually and [to] prepare a report recommending any needed changes." (Compl. ¶ 57 (quoting Final ROD at 4).)

The Forest Service subsequently approved the Wyoming state agency's Chronic Wasting Disease Management Plan, and on December 9, 2016, the agency amended its 2008 special-use authorization, thereby permitting the WGFC to use the Alkali Creek Feedground for supplemental feeding until 2028. (Id. ¶¶ 59–60.)

C. Procedural History

Plaintiffs are various environmental organizations that are headquartered in Idaho, California, Wyoming, and Montana. (See Compl. ¶¶ 8–12; Pls.' Opp'n at 24 n.3.) Plaintiffs filed the instant complaint on June 5, 2017, challenging the Forest Service's "approval of the Wyoming Game and Fish Commission's ... request to amend a special use permit to include Alkali Creek Feedground[.]" (Compl. ¶ 1.)

Plaintiffs' complaint contains two counts. In Count One, Plaintiffs generally allege that, in refusing to give adequate consideration to phasing out elk supplemental feeding programs entirely, the Forest Service "violated its obligations under NEPA to ‘study, develop, and describe appropriate alternatives to recommended courses of action[.]" (Id. ¶ 64 (quoting 42 U.S.C. § 4332(E) ).)⁵ In Count Two, Plaintiffs cast as a violation of the APA this same allegedly arbitrary "fail[ure] to articulate a reasoned explanation for [the Forest Service's] decision to permit artificial feeding on federal grounds for the foreseeable future in light of the [National Park Service] and the [Fish and Wildlife Service's] 2007 decision to phase out artificial feeding [on the National Elk Refuge]." (Id. ¶ 70.) Plaintiffs also maintain that the Forest Service violated the APA by "ignor[ing] its own statutory management obligations" for...