United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
CHRISTOPHER R. COOPER United States District Judge.
case concerns the Bureau of Land Management's
(“BLM”) approval of permits for Slawson
Exploration Company, Inc. (“Slawson”), to drill
horizontal oil and gas wells underneath Lake Sakakawea in
North Dakota. The well pad is located 600 feet from the lake
on privately-owned “fee” land within the Fort
Berthold Indian Reservation, which is where Plaintiff Mandan,
Hidatsa and Arikara Nation (“MHA Nation” or
“Tribe”) resides. The Tribe brought this lawsuit
against the U.S. Department of the Interior and its
now-former Secretary Ryan Zinke (“federal
defendants”) to challenge the issuance of the drilling
permits. It says the BLM's decision to approve the
permits violated a tribal law requiring that all well sites
be at least 1, 000 feet from the lake. Slawson, as it did in
the administrative proceedings, intervened as a defendant.
joined by the federal defendants, has moved to transfer the
case to the District of North Dakota-where the land in
question and the relevant BLM decisionmakers are
located-arguing that the case presents an entirely local
dispute with no meaningful connection to the District of
Columbia. The Tribe opposes the motion. For the reasons that
follow, the Court will grant the motion and transfer the case
to the District of North Dakota.
1953, the federal government completed construction of the
Garrison Dam along the Missouri River in central North
Dakota. Compl., ECF No. 1, ¶ 19. The erection of the dam
created Lake Sakakawea, a 180-mile long reservoir that runs
through the Fort Berthold Indian Reservation. Id.
The reservation is home to the Mandan, Hidatsa and Arikara
Nation, a federally-recognized tribe. Id.
¶¶ 11, 14.
agency of the Department of the Interior, administers federal
oil and gas leases. In 2011, Slawson applied to the BLM's
North Dakota Field Office for permits to drill multiple
horizontal wells underneath Lake Sakakawea. Id.
¶ 41. The wells share a common well pad on
privately-owned, non-Indian “fee” land
approximately 600 feet from the shore. Id.
¶¶ 42-43. (Fee land is property that is
individually owned rather than held by the federal government
in trust for Indian tribes.) According to Slawson, the well
bores will penetrate mineral beds held either by the federal
government, the State of North Dakota, or private entities.
They will not reach minerals held by, or in trust for, the
Tribe. See Slawson's Motion to Transfer
(“MTT”), Exhibit A (Environmental Assessment),
ECF No. 18-2, at 1; MTT, Exhibit B (Decl. of Eric Sundberg),
ECF No. 18-3, ¶ 4. The BLM's North Dakota Field
Office analyzed the potential impact of Slawson's
proposed project as required by the National Environmental
Policy Act, 42 U.S.C. § 4321 et seq., and, in
March 2017, published an Environmental Assessment, a Finding
of No. Significant Impact, and a Decision Record. Compl.
¶ 49. The office approved the project and granted the
Nation sought administrative review of this decision with
BLM's Montana-Dakotas State Director. Id. ¶
50. It argued that the location of the well pad violated a
tribal resolution passed in February 2017 that imposed a 1,
000-foot setback requirement on all wells near the lake
regardless of whether the land was held in fee or owned by,
or in trust for, the Tribe or its members. Id. The
Tribe also argued that the location of the well pad
conflicted with the BLM's own resource management plan,
which applies to the development of federal minerals in North
Dakota, id. ¶ 28, the Army Corps of
Engineers' management plan for Lake Sakakawea,
id. ¶ 33, and the Bureau of Indian Affairs'
programmatic biological assessment and evaluation for oil and
gas development in the Fort Berthold Reservation,
id. ¶ 37. See id. ¶ 50. In April
2017, the State Director affirmed the Field Office's
decision to issue the permits. Id. ¶ 51. The
affirmance was grounded on a finding that the BLM was not
bound by the Tribe's setback law because the permits in
question were for use on privately-owned fee land, not land
owned by the Tribe or its members, and that the Tribe thus
lacked civil jurisdiction over Slawson under the Supreme
Court's decision in Montana v. United States,
450 U.S. 544 (1981). See MTT, Exhibit F (BLM State
Director Decision), ECF No. 18-7, at 4-5.
Tribe then filed a Notice of Appeal and Petition for Stay
with the Interior Board of Land Appeals (“IBLA”).
Compl. ¶ 52. As it did here, Slawson intervened.
Id. In August 2017, an administrative judge from the
IBLA issued an order staying the effectiveness of
Slawson's permits pending review of the merits of the
Tribe's appeal. Id. ¶ 53.
response, Slawson turned to the District of North Dakota for
an injunction preventing the IBLA from enforcing the stay.
Id. ¶¶ 54-55. The district court entered a
temporary restraining order (“TRO”) against the
stay in August 2017, which allowed Slawson to continue
drilling, id. ¶ 56, and in November 2017, it
extended the TRO into a preliminary injunction and denied the
Tribe's motion to dismiss, id. ¶ 60.
meantime, the BLM and Slawson asked the Director of the
Department of the Interior's Office of Hearings and
Appeals (the “Director”) to take jurisdiction
over the Tribe's appeal, which was still pending before
the IBLA administrative judge. Id. ¶ 62. The
Director agreed to do so in October 2017, id. ¶
63, and, after the District of North Dakota issued its final
order, determined in March 2018 that the IBLA should not have
issued the stay order, id. ¶ 66. The Director
then proceeded to the merits of the Tribe's appeal and,
relying substantially on the District of North Dakota's
TRO decision, concluded that the BLM had properly approved
Slawson's permit applications. Id. ¶ 68.
Tribe asks this Court to review the decision affirming the
BLM's approval of the permits. See Compl. (filed
June 20, 2018). It argues that the “BLM was required to
apply the MHA Nation's setback law to [Slawson's
proposed] Project, and under that law, it was required to
deny” the permits. Id. ¶ 72. The Tribe
contends that the agency was required to apply the setback
law for three main reasons: (1) the law was enacted pursuant
to the Tribe's federally-approved constitution; (2) the
law was enacted pursuant to the Tribe's inherent
sovereign authority to protect the health and welfare of the
Tribe; and (3) “the United States has a trust duty and
a treaty duty to apply and enforce the Tribe's
Slawson and the federal defendants have moved to transfer
this case to the District of North Dakota. The Tribe opposes
courts have discretion to transfer a case to another venue
“[f]or the convenience of parties and witnesses, in the
interest of justice.” 28 U.S.C. § 1404(a). Courts
assess motions to 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) (citation omitted).
The moving party bears the initial burden of establishing
that transfer is proper. City of W. Palm Beach v. U.S.
Army Corps of Eng'rs, 317 F.Supp.3d 150, 153 (D.D.C.
2018) (citation omitted).
the moving party must establish that the plaintiff could have
brought its suit in the transferee forum, here North Dakota.
28 U.S.C. § 1404(a). The Tribe does not dispute that it
could have brought this suit in the District of North Dakota
because “a substantial part of property that is the
subject of ...