UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

FRIENDS OF ANIMALS, and 

PREDATOR DEFENSE, 

Plaintiffs, 

v. 

U.S. FISH AND WILDLIFE SERVICE, an 

agency of the United States, 

Defendant. 

AIKEN, Chief Judge: 

6:14-cv-01449-AA 

OPINION AND ORDER 

Friends of Animals and Predator Defense (Plaintiffs) filed this action against the United 

States Fish and Wildlife Service (the FWS) alleging that the FWS violated provisions of the 

National Environmental Policy Act (NEP A) and the Migratory Bird Treaty Act (MBTA). The 

FWS now moves to transfer this case to the U.S. District Court for the Eastern District of 

California pursuant to 28 U.S.C. § 1404(a). The motion is denied. 

BACKGROUND 

Plaintiffs challenge the FWS' s decision to implement "Recovery Action 29" as part of 

the 2011 Northern Spotted Owl (Spotted Owl) Endangered Species Act (ESA) Recovery Plan. 

Recovery Action 29 is a study that analyzes the effects of removing Barred Owls from Spotted 

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Owl habitat and authorizes the "take" of Barred Owls. "Take" traditionally indicates lethal 

removal of a species as permitted under the MBT A. Def.' s Mot. at 1. The FWS intends to 

implement the removal plan pursuant to a "scientific collecting permit" under the MBT A. Id. at 

1, 10. Plaintiffs object to Recovery Action 29 because they claim the FWS has goals that are 

inconsistent with the MBT A. Specifically, plaintiffs argue that the removal of 3,600 owls is 

inconsistent with the mandate that the FWS allow for "careful preservation and protection" of the 

Barred Owl. Pls.' Response at 5. Further, plaintiffs argue that Recovery Action 29 unreasonably 

defines the purpose of and need for the plan, fails to analyze alternatives to the plan, and fails to 

adequately consider impacts ofthe plan in violation ofNEPA. 

Previously, on September 30, 2013, Friends of Animals filed suit in the Eastern District 

of California alleging that FWS violated provisions of the MBT A and NEP A in issuing Recovery 

Action 29. District Judge Mendez subsequently issued a decision finding that Friends of Animals 

lacked standing to challenge the plan and dismissed the case without prejudice. Friends of 

Animals v. Jewell, 2014 WL 3837233 (E.D. Cal. Aug. 1, 2014). Friends of Animals had 

proffered the statements of organizational members Feral and Glass; however, Judge Mendez 

found these statements insufficient to establish either organizational or independent standing. Id. 

at *6-7; see Fair Hous. of Marin v. Combs, 285 F.3d 899, 905 (9th Cir. 2002) (injury in fact to an 

organization is established when the organization suffers "both a diversion of its resources and a 

frustration of its mission"). Specifically, Judge Mendez found that Feral's declaration did not 

"constitute evidentiary support" in favor of standing, and that Glass "has not averred that he has 

any concrete plans to visit an area that will be affected by the conduct that impairs his interests or 

an adjacent area." Jewell, 2014 WL 3837233, at *4, *7. Notably, Judge Mendez did not review 

the declaration of an Oregon member when he found that Friends of Animals did not have 

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Case 6:14-cv-01449-AA Document 18 Filed 12/18/14 Page 2 of 7
standing to challenge the FWS's decision to remove Barred Owls. Pls.' Response at 3, 9. 

Regardless, Judge Mendez dismissed the case for lack of standing and specifically noted in his 

opinion, "[ o ]rdinarily, a case dismissed for lack of subject matter jurisdiction should be 

dismissed without prejudice so that a plaintiff may reassert [its] claims in a competent court." I d. 

at *7 (citing and quoting Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988)). 

Subsequently, on September 9, 2014, Friends of Animals, joined by Plaintiff Predator 

Defense, filed this action in the U.S. District Court for the District of Oregon. Like Jewell, the 

case at bar challenges the FWS's decision to implement Recovery Action 29 and remove 3,600 

Barred Owls from a region spanning Washington, Oregon and California. 

DISCUSSION 

Under 28 U.S.C. § 1404(a), a court may transfer an action to another district "for the 

convenience of the parties and witnesses, in the interest of justice." A court first must determine 

whether it is possible to transfer the case to the suggested venue. If the suggested venue is a 

feasible option, courts then generally evaluate factors associated with convenience and interests 

of justice. Courts typically afford deference to the plaintiffs choice of forum unless convenience 

of the parties and the interests of justice weigh in favor of transfer. STX, Inc. v. Trik Stik, Inc., 

708 F. Supp. 1551, 1555-56 (N.D. Cal. 1988). "The defendant must make a strong showing of 

inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. 

Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 

A. Feasibility ofTransferto the E.D. ofCalifornia 

The FWS generally meets the threshold question of whether the case may be brought in 

the suggested forum. The case was initially filed in the Eastern District of California, and venue 

would be appropriate in that court. See Def.'s Mot. at 15-16. As the FWS notes, the Acting 

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Case 6:14-cv-01449-AA Document 18 Filed 12/18/14 Page 3 of 7
Regional Director of Region 8, Ren Lohoefener, signed the FWS's Record of Decision and is 

stationed in Sacramento. 

B. Deference to Plaintiffs' Choice of Forum 

The FWS argues that plaintiffs filed the case at bar in their "second choice of forum," and 

that second choice forums are not afforded the same deference as a first choice, citing Kawamoto 

v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209 (D. Haw. 2002) and Medford Pac. v. Danrnore 

Const. Inc., 1997 WL 419280, at *2 (D. Or. 1997) among other cases. 

In Kawamoto, the plaintiff initially filed suit in Hawaii. Kawamoto, 225 F. Supp. 2d at 

1213. However, the court agreed with the defendant that venue should be transferred to the 

Eastern District of California based on inconvenience to the parties and witnesses. Id. at 1215-

16. Instead of the Eastern District, the plaintiff requested that venue be transferred to the 

Northern District of California - his "second choice of forum." Id. at 1216. The court ruled that 

the plaintiffs choice would not receive deference in those circumstances. Id. ("The plaintiffs 

'second choice' of forum is not automatically entitled to the same amount of deference."). In 

Medford Pac., the defendant's motion to transfer was granted and the case was transferred from 

the District of Hawaii to the District of Oregon. 1997 WL 419280, at * 1. Once the case 

transferred, the plaintiff asked the case to be heard in the Medford Division rather than the 

Portland Division. Id. The court opined that "[t]he court does not give much deference to the 

plaintiffs second choice of forum, Medford." Id. at *2. Kawamoto and Medford Pac. are clearly 

distinguishable from the case at bar. 

Here, plaintiffs filed an entirely new action after the previous case was dismissed for lack 

of standing with respect to Friends of Animals' California members. Moreover, plaintiffs 

followed Judge Mendez's suggestion that they refile the action in a "competent court" with 

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Case 6:14-cv-01449-AA Document 18 Filed 12/18/14 Page 4 of 7
subject matter jurisdiction. Given Judge Mendez's analysis and implicit directive, plaintiffs' 

decision to file suit in Oregon is understandable. In these circumstances, I do not find plaintiffs' 

choice to be a "second choice of forum" undeserving of deference. 

C. Convenience and Interests of Justice 

Unless convenience of the forum weighs strongly in favor of transfer, plaintiffs' choice of 

forum will be respected. E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. 

Cal. 1994); see also Continental Oil Co. v. Atwood & Morrill Co., 265 F. Supp. 692, 699 (D. 

Mont. 1967). Private interest factors a court should consider include the convenience and ease of 

obtaining witnesses "and all other practical problems that make trial of a case easy, expeditious 

and inexpensive." Decker Coal Co., 805 F.2d at 843 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 

501, 508 (1947)). 

Here, plaintiffs' standing declarants, Ms. Zucker and Mr. Fahy, reside in Oregon, and 

plaintiff Predator Defense is located primarily in Eugene, Oregon. Further, the decision to issue a 

permit under the MBT A was made by the Oregon FWS Field Office, and, therefore, "a 

substantial part of the events or omissions giving rise to the claim occurred, or a substantial part 

of the property that is the subject of the action is situated" in Oregon. 28 U.S.C. § 1391(b). 

Further, given the nature of review under the Administrative Procedure Act, it is not 

inconvenient to litigate this action in the District of Oregon. Likewise, I do not find plaintiffs' 

presumed need for local counsel to cause inconvenience to either party. 

The court should also consider public interest factors when considering venue transfer, 

including "considerations of court congestion, court familiarity with relevant state law, avoiding 

conflict of laws problems, the fairness of burdening citizens in the forum state with jury duty, 

and the 'local interest in having localized controversies decided at home."' Kawamoto, 225 F. 

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Case 6:14-cv-01449-AA Document 18 Filed 12/18/14 Page 5 of 7
Supp. 2d at 1213 (quoting Decker Coal Co., 805 F.2d at 843). The FWS emphasizes two of these 

factors: the Eastern District of California's familiarity with the issues, and the relative congestion 

of the District of Oregon. 

The FWS asserts that the Eastern District of California previously heard Jewell, a case 

alleging similar claims with only slight differences from the case at bar. Def.'s Mot. at 20. The 

FWS also concedes, however, that differences exist between Jewell and this case, including 

"slight modifications to account for the previous litigation, amended permit, and the addition of 

Predator Defense as a party." Id. In addition, as noted by plaintiffs, Judge Mendez dismissed 

Jewell before resolving the merits of the case. Whether the case is heard in the Eastern District of 

California or in the District of Oregon, either court will be required to consider the underlying 

facts of the case and the modifications to the claims, the amended permit for removal of Barred 

Owls, and the addition of a new plaintiff. 

The FWS also asserts that courts are more congested in the District of Oregon, as 

opposed to the Eastern District of California, citing statistics that demonstrate cases are resolved 

more quickly in the Eastern District of California than in the District of Oregon (9.2 months 

versus 11.1 months). Plaintiffs refute this fact by pointing to statistics that highlight the filing of 

4,901 civil cases in the Eastern District of California versus 2,385 civil cases in the District of 

Oregon. Given the slight temporal difference in the disposition of pending cases - which may 

involve a number of factors - I do not find that court congestion tips the scale in favor of transfer 

to the Eastern District of California. 

The FWS finally asserts that the interest of "having localized controversies decided at 

home" is neutral, because plaintiffs' claims have ties to both California and Oregon. Plaintiffs 

respond that the preference for adjudicating localized controversies actually weighs against 

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transfer. Plaintiffs specifically note that several standing declarants reside in Oregon and 

emphasize that the Barred Owl removal is a regional concern. Further, the FWS office that 

issued the new removal permit is located in Oregon, and of the owls scheduled for removal, 

2,693 are to be removed from Oregon, 634 are to be removed from Washington, and 267 are to 

be removed from California. Pls.' Response at 3 n. 2. Thus, the localization issue does not weigh 

in favor of transfer. 

In sum, plaintiffs properly filed suit in the District of Oregon, and the FWS' s arguments 

fail to overcome plaintiffs' choice of forum on the basis of convenience or interests of justice. 

CONCLUSION 

For the foregoing reasons, Defendant FWS's Motion to Transfer Venue (doc. 14) is 

DENIED. 

IT IS SO ORDERED. 

Dated this ~~fDecember, 2014. 

Ann Aiken 

U.S. District Judge 

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