Ctr. for Biological Diversity v. Ross, Civil Action Nos. 18–112 (JEB)

310 F.Supp.3d 119

CENTER FOR BIOLOGICAL DIVERSITY, et al., Plaintiffs,

v.Wilbur ROSS, et al., Defendants.

Civil Action Nos. 18–112 (JEB)

18–283 (JEB)

United States District Court, District of Columbia.

Signed May 10, 2018

Kristen Monsell, Pro Hac Vice, Oakland, CA, Laura Friend, Humane Society of the United States, Jane P. Davenport, Defenders of Wildlife, Roger M. Fleming, Washington, DC, Sean Mahoney, Pro Hac Vice, Emily K. Green, Conservation Law Foundation, Portland, MA, Erica A. Fuller, Pro Hac Vice, Conservation Law Foundation, Boston, MA, Sarah Uhlemann, Seattle, WA, for Plaintiff.

John B. Grosko, U.S. Department of Justice, Environment and Natural Resource Wildlife And Marine Resources Section, Washignton, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

In 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.

I. Background

The 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.

Right 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., ¶¶ 87–88.

Two 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).

Because 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.

In 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.

II. Legal Standard

Even if 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, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). In other words, the transfer statute requires that venue be proper in the new forum.

Once 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, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (quoting Van Dusen, 376 U.S. at 622, 84 S.Ct. 805 ); 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, 108 S.Ct. 2239.

In 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).

III. Analysis

A. Propriety of New Venue

Both parties agree that § 1404(a)'s threshold query—whether the case could have been brought in the proposed venue—is satisfied here. See CBD Opp. at 6 (conceding that case could have been brought in District of Massachusetts). Under the general venue statute, venue in a suit against the federal government will lie in any district in which a plaintiff resides. See 28 U.S.C. § 1391(e)(1)(C). At least one Plaintiff, Conservation Law Foundation, has its principal place of business in Boston. See CLF Compl., ¶ 15. Section 1404(a)'s threshold requirement is thus satisfied.

B. Private- and Public–Interest Factors

Turning to the case-specific factors, Defendants have the burden to show that the "particular circumstances" of the case "render [this] forum inappropriate." Starnes v. McGuire, 512 F.2d 918, 925 (D.C. Cir. 1974). For this determination, the Court assesses a number of private- and public-interest factors. See Trout Unlimited, 944 F.Supp. at 16. The former include: (1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses; and (6) the ease of access to sources of proof. Id. The latter are: (1) the transferee's familiarity with the governing laws; (2) the relative congestion of the calendars of the transferor and transferee courts; and (3) the local interest in having local controversies decided at home. Id.

1. Private–Interest Factors

As with many cases that will be decided on an administrative record, the most relevant private-interest factors are the parties' choice of forum and where the claim arose. The Court addresses both below before briefly discussing those factors related to convenience.

a. Parties' Choice of Forum

When a plaintiff brings suit in its home forum, that choice is afforded "substantial deference." The Wilderness Soc'y v. Babbitt, ...