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Alaska Wilderness League v. Jewell

United States District Court, D. Columbia.

April 17, 2015

ALASKA WILDERNESS LEAGUE, et al., Plaintiffs,
v.
SALLY JEWELL, in her official capacity as Secretary of the Interior, et al., Defendants

For ALASKA WILDERNESS LEAGUE, CENTER FOR BIOLOGICAL DIVERSITY, GREENPEACE, INC., RESISTING ENVIRONMENTAL DESTRUCTION ON INDIGENOUS LANDS, SIERRA CLUB, Plaintiffs: Eric Paul Jorgensen, LEAD ATTORNEY, EARTHJUSTICE, Juneau, AK; Erik C. Grafe, PRO HAC VICE, EARTHJUSTICE, Anchorage, AK.

For NATURAL RESOURCES DEFENSE COUNCIL, Plaintiff: Aaron S. Colangelo, LEAD ATTORNEY, NATURAL RESOURCES DEFENSE COUNCIL, Washington, DC; Nathaniel S.W. Lawrence, PRO HAC VICE, NATURAL RESOURCES DEFENSE COUNCIL, Olympia, WA.

For SALLY JEWELL, U.S. FISH AND WILDLIFE SERVICE, Defendants: David Bernard Glazer, Meredith L. Flax, LEAD ATTORNEYS, U.S. DEPARTMENT OF JUSTICE, San Francisco, CA.

For ALASKA OIL AND GAS ASSOCIATION, Movant: Jeffrey W. Leppo, LEAD ATTORNEY, STOEL RIVES LLP, Seattle, WA; Ryan P. Steen, PRO HAC VICE, STOEL RIVES LLP, Seattle, WA.

Page 113

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge.

There are no Pacific walruses in Washington, D.C.--not even at the National Zoo. See Meet Our Animals: Mammals at the National Zoo, Smithsonian Nat'l Zoological Park, http://nationalzoo.si.edu/Animals/AnimalIndex/mammals.cfm. And yet this case is about Pacific walruses. Plaintiff Alaska Wilderness League and other environmental groups brought the case to challenge a United States Fish and Wildlife Service regulation that allows certain oil and gas industry players to unintentionally " take" (that is to say, harm, harass, or disturb--but not kill) Pacific walruses in the Chukchi Sea off the coast of Alaska. See Compl. ¶ 1. But the government has responded with a preliminary question: is the District Court for the District of Alaska better positioned to weigh the merits of these Alaska-centric claims? See Gov't's Mot. to Transfer Venue [ECF No. 8] (" Gov't's Mot." ).[1] The answer is yes, in this Court's estimation. The Court will therefore grant the government's motion and transfer this case to Alaska, where the case could have been filed from the start, where the challenged regulation was initiated and developed, where that regulation will apply, and--not inconsequentially--where Pacific walruses can be found.

BACKGROUND

The Marine Mammal Protection Act generally prohibits " the taking . . . of marine mammals [including walruses] and marine mammal products." [2] 16 U.S.C. § 1371(a).

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But there are exceptions to this general rule. One exception: citizens of the United States " who engage in a specified activity . . . within a specified geographical region" may request authorization for " incidental, but not intentional, taking . . . of small numbers of marine mammals" for a period of " not more than five consecutive years." Id. § 1371(a)(5)(A)(i). And according to the Act, some requests under this exception must be approved: " the Secretary [of the Interior] shall allow" incidental taking where she determines--after " notice . . . and [an] opportunity for public comment" --" that the total of such taking . . . will have a negligible impact on such [marine mammals] and will not have an unmitigable adverse impact on the availability of such [mammals] . . . for subsistence uses" by Alaskan natives. Id. (emphasis added); see also id. § 1371(b) (authorizing takings by certain Indians, Aleuts, or Eskimos).

This case stems from the Secretary's approval of one such incidental-take request by the Alaska Oil and Gas Association. On January 31, 2012, the Association called for a regulation that would " allow the nonlethal, incidental take of small numbers of walruses . . . in the Chukchi Sea and the adjacent western coast of Alaska . . . for a period of five years (from June 11, 2013, to June 11, 2018)." Gov't's Mot. at 5. About a year later, the Fish and Wildlife Service proposed a regulation along the lines of that requested by the Association. See Compl. ¶ 60 (citing 78 Fed.Reg. 1942 (Jan. 9, 2013)). And after a six-month notice-and-comment period, the Service issued its final regulation on June 12, 2013. See id. (citing 50 C.F.R. § § 18.111-18.119).

By its terms, the regulation allows " the nonlethal incidental . . . take of small numbers of Pacific walruses . . . by [citizens] . . . engaged in oil and gas exploration activities" in the specified region. 50 C.F.R. § 18.111. This is no small area. The regulation applies to a geographic area covering approximately 90,000 square miles, and including portions of the Outer Continental Shelf, waters of the State of Alaska, and " terrestrial coastal land [extending] 25 miles inland" around Wainwright and Barrow, Alaska. Id. § 18.112; see also Gov't's Mot. at 5. Any oil and gas explorers operating in this region and hoping to take advantage of the regulation " must apply for a Letter of Authorization for each exploration activity." 50 C.F.R. § 18.114(b). The application must include, among other things, a plan for monitoring and mitigating any effects on walruses, as well as " [a] site-specific . . . walrus awareness and interaction plan" meant to " limit animal-human interactions, increase site safety, and minimize impacts to marine mammals." Id. § 18.114(c). Only those explorers with approved Letters of Authorization will be forgiven their incidental taking of Pacific walruses. See id. § 18.116.

Some seventeen months after the Fish and Wildlife Service promulgated its final regulation, the Alaska Wilderness League filed this action. See Compl. at 29 (noting that plaintiff submitted its complaint on November 10, 2014). The complaint alleges two grounds for relief--both of which invoke the Administrative Procedure Act. First, the League claims that " the Fish and Wildlife Service acted arbitrarily and in violation of its obligations" when it approved the Pacific walrus incidental-take regulation. Id. ¶ 75. And second, the League claims that the Service's negligible-impact conclusion regarding this regulation was " arbitrary, capricious, and not in accordance with law." Id. ¶ 80. The Service, for its part, denies these assertions, and has moved to transfer this case to the District of Alaska. See Gov't's Answer

Page 115

to Compl. [ECF No. 19] at 19; Gov't's Mot. at 2.

LEGAL STANDARD

Although the Alaska Wilderness League is anxious to wade into the merits of its Administrative Procedure Act claims, see, e.g., Joint Mot. at 1 (" Plaintiffs hope the summary judgment briefing can be completed well in advance of [July 1]." ), the Court must first address a different question: should this case be transferred? As the law governing transfers explains: " For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). The statute thus asks two things of courts considering transfers. First, this Court must decide whether plaintiffs could have brought their case in the proposed transferee district. See Van Dusen v. Barrack,376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). And second, the Court must exercise its " discretion . . . to adjudicate [the] motion[] 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, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (internal quotation marks omitted). This discretion is not entirely unfettered, however. The courts in this Circuit will consider ...


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