United States District Court, N.D. California
ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER
VENUE Re: Dkt. No. 12
C. SPERO UNITED STATES MAGISTRATE JUDGE
Desert Survivors, Center for Biological Diversity, WildEarth
Guardians, and Western Watersheds Project (collectively
''Plaintiffs'') brought the instant action
seeking to protect the Bi-State Sage-Grouse
(''BSSG''), a large bird found on the border
between California and Nevada. In the Complaint, Plaintiffs
allege that Defendants Department of Interior of the United
States and United States Fish and Wildlife Service
''Defendants'') improperly withdrew a
proposed rule (the ''Withdrawal'') that the
BSSG be listed as a threatened species under the Endangered
Species Act (''ESA''), 16 U.S.C. §§
1531-1534, and seek an order directing the Service to
reconsider listing the BSSG as threatened under the ESA.
before the Court is Defendants‘ Motion to Transfer
Venue (''Motion''). In the Motion, Defendants
ask the Court to transfer venue from the Northern District of
California to the Eastern District of California. A hearing
on the motion was held at 9:30 a.m. on July 15, 2016. For the
reasons stated below, the Motion is DENIED.
are large birds known for their elaborate mating ritual that
live in sagebrush habitats. Complaint for Declaratory and
Injunctive Relief (''Compl., '' dkt. 1)
¶ 38. The Bi-State Sage-Grouse is a distinct population
of greater sage-grouse species that live in the ''far
southwestern reach of the greater sage-grouse‘s
range'' in the central border region of eastern
California and western Nevada. Id. ¶ 40 (citing
80 Fed. Reg. 22, 828, 22829). The BSSG has suffered from
habitat and population loss for many years. Id.
¶ 45 (citing 80 Fed. Reg. at 22, 831). The BSSG‘s
''small population size and isolation, coupled with
stressors caused by human activities, threaten the
population‘s long-term survival.'' Compl.
¶ 43 (citing U.S. Fish and Wildlife Service, Species
Status Assessment: Bi-State Distinct Population Segment of
Greater Sage-Grouse at 6 (Mar. 1, 2015)).
Related Litigation and Agency Action
groups have been advocating and petitioning the Service for
the protection of the BSSG for more than a decade.
2002, the Institute for Wildlife Protection petitioned the
Service to emergency list sage grouse found in the Mono
County, California and Lyon Count, Nevada (the animals who
later became known as the BSSG) as an endangered distinct
population segment of the greater sage-grouse. See
Compl. ¶ 49; 71 Fed. Reg. 76, 058. Later that year, the
Service found that the petition lacked ''substantial
scientific or commercial information'' that the
listing was not warranted based on the lack of information
about whether these sage-grouse were a distinct population
segment and whether they were faced with extinction. 71 Fed.
Reg. at 76, 058-59. Entities must be a distinct population
segment in order to be listed under the ESA. Id. In
November 2005, the petitioners filed suit in the Western
District of Washington challenging the Service‘s
finding that listing was not warranted. Id.
November 2005, a set of environmental groups petitioned the
Service to list the BSSG as threatened or endangered.
See Compl. ¶ 49; 71 Fed. Reg. at 76, 059. The
petitioning groups were the Center for Biological Diversity
(CBD), the Western Watersheds Project, the Sagebrush Sea
Campaign, and Christians Caring for Conservation. 71 Fed.
Reg. at 76, 059. In March 2006, the Service responded to the
petition with a letter indicating that it reviewed the
petition and the listing was not necessary. Id. The
Service further informed the petitioners that because of
''court orders and settlement agreements for other
listing and critical habitat actions'' the Service
was unable to further address the petition. Id. In
April 2006, the petitioning environmental groups sent the
Service a notice of their ''intent to sue the Service
for violating the Act's requirement to make a petition
finding within 12 months after receiving a
Service settled both of these matters in an April 2006
settlement agreement where the Service agreed to evaluate the
November 2005 petition, re-evaluate the 2002 petition, and
publish a finding on the petitions in December 2006.
Id. The Service did so and found that the petitions
''did not provide sufficient information to show that
the population may warrant listing.'' Compl. ¶
49 (citing 71 Fed. Reg. 76, 058).
2007, the CBD, the Sagebrush Sea Campaign, Western Watersheds
Project, and Desert Survivors brought an action in this Court
challenging the Service‘s 2006 finding. See
Compl. ¶ 49 (citing Ctr. for Biological Diversity v.
U.S. Fish and Wildlife Serv., Case 3:07-cv-04347(JCS)
(N.D. Cal.), dkt. 25)). The parties reached a settlement in
2008 when the Service agreed to review the petition again and
''found that the [BSSG] could warrant listing, and
issued multiple findings on species‘ status.''
Id. (citing 78 Fed. Reg. 64, 358, 64, 360). This
settlement resulted in a May 2010 finding by the Service that
the BSSG was suitable for listing under the ESA but its
listing was ''precluded by higher listing
priorities.'' Id. ¶ 50 (citing 78 Fed.
Reg. at 64, 360).
2011 settlement in a consolidated case with WildEarth
Guardians and other groups in the District of Columbia, the
Service agreed to publish proposed rules for protection or
findings that protection was not warranted for the 251
species that were candidates for protection under the ESA in
2010. 78 Fed. Reg. at 64, 361.
direct result of that settlement agreement and developing
from prior petitions to protect the BSSG, in October 2013 the
Service issued a Proposed Rule to list the BSSG as threatened
under the ESA. See Compl. ¶ 52; 78 Fed. Reg. at
64, 361. In conjunction with the Proposed Rule, the Service
proposed designating 1.8 million acres of land as critical
habitat for the BSSG. Id. (citing 78 Fed. Reg. at
April 2015, the Service withdrew the proposed rule to list
the BSSG on the basis that ongoing conservation efforts had
reduced the threats to the BSSG. Compl. ¶ 59 (citing 80
Fed. Reg. 22, 828).
response to the withdrawal of the proposed rule, Plaintiffs
initiated this action in the Northern District of California
alleging that the Service (1) ''failed to properly
apply the ESA‘s listing factors, failed to adhere to
the best available science, and failed to adequately explain
why it withdrew the proposed rule;'' (2)
''violated the ESA in adopting [and misapplying] the
Significant Portion of its Range Policy;'' and (3)
''violated the ESA by misapplying the Service‘s
Policy on the Evaluation of Conservation Efforts (PECE
Policy).'' Compl. ¶¶ 80, 83-84, 87
(internal citations and quotation marks omitted).
One is brought under the ESA and the Administrative Procedure
Act (''APA'') § 706(2)(A) based on the
theory that the Withdrawal was ''arbitrary [and]
capricious'' because the Service failed to adhere to
the best available science, improperly defined the
foreseeable future, improperly interpreted population models,
concluded that existing regulations adequately protect the
BSSG on federal land, concluded that existing regulations
will sufficiently conserve the BSSG, and failed to adhere to
the best available science regarding threats to the BSSG.
Compl. ¶ 80(a)- (f).
Two is brought under the ESA and APA § 706(2)(A),
alleging that the Service‘s adoption of the Significant
Portion of its Range Policy (SPOR) is arbitrary and
capricious. Compl. ¶ 85. The Service is required to list
to a species ''if it is endangered or threatened
throughout 'all or a significant portion of its
range.‘'' Compl. ¶ 20 (citing 16 U.S.C.
§§ 1532(6), 1532(20), 1532(a)-(b)). SPOR interprets
the phrase ''significant portion of its
range'' and provides that an entire species will be
listed if it is found to be threatened or endangered in a
significant portion of its range. It also requires that a
distinct population segment be listed when it is threatened
or endangered within its range. A portion of a range is
significant when the portion‘s ''contribution
to the viability of the species is so important that, without
the members in that portion, the species would be in danger
of extinction, or likely to become so in the foreseeable
future, throughout all of its range.'' Compl. ¶
23 (citing 79 Fed. Reg. 37578). Plaintiffs claim that SPOR is
arbitrary and capricious because it does not consider the
geographic area the species historically inhabited, renders
portions of the definitions of ''endangered
species'' and ''threatened species''
superfluous, and ''sets such a high
threshold'' to invoke SPOR that it cannot protect
species that are not otherwise eligible for listing.
Id. ¶ 83.
Three is also brought under the EPA and APA § 706(2)(A)
based on the theory that the Service‘s application of
the PECE Policy to the BSSG was arbitrary and capricious.
Id. ¶ 89. The PECE Policy ''establishes
criteria to be applied by the Service in evaluating whether
identified, but not yet implemented, conservation efforts can
be considered as part of a listing decision.''
Id. ¶ 30. The policy considers the certainty of
the implementation and the certainty of effectiveness.
Plaintiffs claim that the Service misapplied the nine
criteria laid out in the PECE Policy to assess the certainty
of the implementation of BSSG conservation efforts.
Id. ¶ 87. Plaintiffs also claim that the
Service misapplied the six criteria provided by the PECE
Policy for evaluating the certainty of effectiveness of BSSG
conservation efforts. Id. ¶ 88.
are four environmental organizations with tens of thousands
of members nationwide. Plaintiff Desert Survivors is an
''affiliation of desert lovers'' who are
''committed to experiencing, sharing, and protecting
desert wilderness.'' Decl. of Gerald Goss (Dkt. 16-1)
at 2. Desert Survivors is headquartered in Oakland and has
nearly 400 members in the Northern District of California.
Id. Members of Desert Survivors have visited the
habitat of the BSSG and intend to do so in the future.
Id. at 3.
Center for Biological Diversity (''CBD'') is
a non-profit corporation incorporated in California. Decl. of
Roman Czebiniak (Dkt. 16-2) at 2. CBD maintains an office in
Oakland which ''acts as a hub for much the legal and
programmatic work at CBD'' as well as offices in
Humboldt and Marin Counties. Id. at 3; Decl. of
Peter Galvin (Dkt. 16-3) at 2. CBD has nearly 48, 000 members
nationwide and more than 5, 000 members who live in the
Northern District of California. Czebiniak Decl. at 3.
Western Watersheds Project is a conservation organization
headquartered in Idaho. Decl. of Michael Connor (Dkt. 16-4)
at 2. It maintains a field office in California. Id.
Western Watersheds Project has ...