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Slaughter v. National Park Service

United States District Court, District of Columbia

November 14, 2019

NEIGHBORS AGAINST BISON SLAUGHTER, et al., Plaintiffs,
v.
NATIONAL PARK SERVICE, et al., Defendants.

          MEMORANDUM OPINION

          Beryl A. Howell, Chief Judge.

         Plaintiffs 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.[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.[2] Moreover, because the plaintiffs fail to demonstrate the exigency necessary to justify granting a motion for a temporary restraining order, that motion is denied.

         I. BACKGROUND

         Every 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.[3]

         Plaintiff 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.

         That 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).

         Although 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.

         Since 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.

         To 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.

         After 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.

         II. LEGAL STANDARD

         A case 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)).[4]

         III. DISCUSSION

         The 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).

         In 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 ...


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