United States District Court, District of Columbia
E. BOASBERG UNITED STATES DISTRICT JUDGE
these two consolidated cases, four environmental and
conservation groups challenge a 2014 Biological Opinion
issued by the National Marine Fisheries Service regarding the
effects of the American lobster fishery on the North Atlantic
right whale. Alleging that the BiOp violates several federal
statutes, Plaintiffs have brought this suit against the
Secretary of Commerce, NMFS, and the Assistant Administrator
for Fisheries at the National Oceanic and Atmospheric
Administration. Defendants now move to transfer this action
to Massachusetts, where the BiOp was prepared. Because the
Court finds that convenience and the interests of justice
warrant keeping the matter in the District of Columbia, it
will deny the Motion.
North Atlantic right whale is one of the world's most
endangered mammals, with only an estimated 458 creatures
alive as of 2016. See No. 18-112 (Center for
Biological Diversity, et al.), Compl., ¶¶
61, 64. In recent years, the primary cause of death and
serious injury for the species has been entanglement in
fishing gear. Id., ¶ 68. When a right whale
becomes entangled, it can die immediately by drowning or over
an extended time period from injury, infection, or
starvation. Id., ¶ 69. From 2010-16,
entanglements accounted for 85% of right-whale deaths.
Id., ¶ 71. If these trends continue, scientists
estimate that the leviathan could become functionally extinct
in 23 years. Id., ¶ 83.
whales do not maintain a circumscribed habitat, but
“migrate annually from their summer feeding grounds off
the Northeast Coast of the United States to their winter
breeding grounds off the Southeast Coast.”
Id., ¶ 62. Because of their migratory pattern,
the government has designated the right whale's critical
habitat to lie in waters stretching from Maine to Florida.
See No. 18-283 (Conservation Law Foundation),
Compl., ¶¶ 66-67. In the Northeast, the right
whales swim in many areas where the American lobster fishery,
an entity authorized and managed by NMFS, operates.
See CBD Compl., ¶ 88. The fishery's lobster
gear creates a significant risk of entanglement for the
whale, particularly in the summer and early fall, when both
the mammal's feeding and lobster fishing are at their
peak in many of the same waters. Id., ¶¶
statutes - the Endangered Species Act, 16 U.S.C. § 1531
et seq., and the Marine Mammal Protection Act, 16
U.S.C. § 1361 et seq. - seek to protect species
like the right whale in danger of extinction. Both prohibit
any entity from “tak[ing]” an endangered species.
See 16 U.S.C. §§ 1538(a)(1), 1371(a),
1372(a). Taking encompasses a broad range of harms, including
trapping, wounding, killing, or capturing a protected
species. Id. § 1532(19). The Secretary of
Commerce is responsible for administering and enforcing the
statutes. For most marine species, including the right whale,
the Secretary has delegated this responsibility to the
National Marine Fisheries Service, a line office within the
National Oceanic and Atmospheric Administration, which itself
sits in the Department of Commerce. See 50 C.F.R.
§ 402.01(b). Pursuant to the ESA, the Secretary must
ensure that “any action authorized, funded, or carried
out by [a federal] agency . . . is not likely to jeopardize
the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat of such species.” 16 U.S.C.
§ 1536(a)(2). NMFS does so by issuing a biological
opinion. See 50 C.F.R. § 402.14(g)(4).
NMFS authorizes and manages the operation of the American
lobster fishery, it must prepare biological opinions to
determine the effects of the fishery on threatened and
endangered species. See CBD Compl., ¶¶
90-91. In 2014, the Agency issued a BiOp to analyze the
effects on the North Atlantic right whale. Id.,
¶ 98. Looking at the “waters from Maine through
Cape Hatteras, NC, ” CLF Compl., ¶ 98, the opinion
estimated that right-whale entanglements from the American
lobster fishery would be unlikely to increase above 3.25 per
year and concluded that the fishery does not threaten the
survival of the whale. Id., ¶¶ 103-04. The
BiOp was “prepared” and “drafted” in
NMFS's Greater Atlantic Regional Fisheries Office, which
is located in Gloucester, Massachusetts, and signed by
GARFO's Regional Administrator. See Mot. to
Transfer, Attach. 1 (Affidavit of Michael Pentony),
¶¶ 1, 5.
January 2018, the Center for Biological Diversity, Defenders
of Wildlife, and the Humane Society of the United States
brought suit, alleging that the 2014 BiOp does not comply
with the ESA, the MMPA, or the Administrative Procedure Act.
See CBD Compl., ¶ 1. The following month, the
Conservation Law Foundation filed a Complaint with
substantially similar claims and requests for relief.
See CLF Compl. After Defendants separately moved to
transfer both cases to the District Court for the District of
Massachusetts, this Court ordered all parties to submit a
notice on their position regarding consolidation.
See Minute Order of April 24, 2018. As the parties
generally agreed that it would be proper, the Court
consolidated the cases on May 2, 2018. See Minute
Order. It will thus analyze the Motions to Transfer under the
current consolidated posture.
a plaintiff has brought its case in a proper venue, a
district court may, “for the convenience of parties and
witnesses, in the interests of justice . . . transfer [it] .
. . to any other district or division where [the case] might
have been brought.” 28 U.S.C. § 1404(a). The only
textual limitation on the Court's power to transfer a
case under § 1404(a), then, is the requirement that the
case “might have been brought” in the forum to
which the defendant is seeking transfer. Van Dusen v.
Barrack, 376 U.S. 612, 623 (1964). In other words, the
transfer statute requires that venue be proper in the new
that threshold condition is met, district courts have
“discretion . . . 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, 376 U.S. at 622); see
also Pres. Soc'y of Charleston v. U.S. Army Corps of
Eng'rs, 893 F.Supp.2d 49, 53 (D.D.C. 2012). This
analysis “calls on the district court to weigh in the
balance a number of case-specific factors, ” which
typically relate to the private interests of the parties and
the public interests of justice. See Stewart Org.,
487 U.S. at 29-30.
evaluating motions to transfer venue, courts in this circuit
are instructed to guard against “the danger that a
plaintiff might manufacture venue in the District of Columbia
. . . [b]y naming high government officials as
defendants.” Cameron v. Thornburgh, 983 F.2d
253, 256 (D.C. Cir. 1993). Still, to prevail, the movant must
show that “considerations of convenience and the
interest of justice weigh in favor of transfer.”
Sierra Club v. Flowers, 276 F.Supp.2d 62, 65 (D.D.C.
2003); Trout Unlimited v. U.S. Dep't of Agric.,
944 F.Supp. 13, 16 (D.D.C. 1996) (movant bears burden to show
that transfer is proper).