1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CENTER FOR BIOLOGICAL DIVERSITY, et al. , Plaintiffs,

v. Civil Action Nos. 18-112 (JEB) WILBUR ROSS, et al. , Defendants. 18-283 (JEB)

MEMORANDUM OPINION In these two consolidated cases , four environmental and conserv ation 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, Plai ntiffs have brought this suit aga inst the Secretary of Commerce, NMFS, and the Assistant Administra tor for Fisheries at the Nati onal Oceanic and Atmospheric Administration. Defendants now mov e 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 th e Motion.
I. Background The North Atlantic right whale i s one of the world’s most endan gered mammals, with only an estimated 458 creatures alive as of 2016. See No. 18-1 12 (Center for Biological Diversity, et al. ), Compl., ¶¶ 61, 64. In recent ye ars, the primary cause of de ath and serious injury for the species has bee n entanglement in fishing gear. Id., ¶ 68. When a right whale becomes entangled, it can die immediately by drowning or over a n extended time period from2 injury, infection, or starvation. Id., ¶ 69. From 2010-16, en tanglements accounted for 85% of right-whale deaths. Id., ¶ 71. If these trends continue, scie ntists estimate that the leviathan could become functionally ext inct in 23 years. Id., ¶ 83. Right whales do not maintain a cir cumscribed habitat, but “migr ate annually from their summer feeding grounds off the Nort heast Coast of the United St ates to their winter breeding grounds off the Southeast Coas t.” Id., ¶ 62. Because of their migratory pattern, the government has designated the right whale’s critical habitat to lie in wat ers 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, a n entity authorized and managed by NMFS, operates. See CB D 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 lobs ter fishing are at their peak in many of the same waters. Id., ¶¶ 87-88. Two statutes — the Endangere d 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 pr ohibit any entity from “tak[in g]” an endangered species. See 16 U.S.C. §§ 1538(a)(1), 1371(a), 13 72(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 respons ible for administering and enfo rcing the statutes. For most marine species, including the r ight whale, the Secretary has de legated this responsibility to the National Marine Fisheries Servi ce, a line office within the Nat ional 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 Secret ary must ensure that “any action authorized, funded, or carried3 out by [a federal] agency . . . is not likely to jeopardize the continued existence of any endangered species or threatene d species or result in the destr uction or adverse modification of habitat of such species.” 16 U .S.C. § 1536(a)(2). NMFS does s o by issuing a biological opinion. See 50 C.F.R. § 402.14(g)(4). Because NMFS authorizes and manages the operation of the Americ an lobster fishery, it must prepare biological opinions t o determine the effects of th e fishery on threatened and endangered species. See CBD C ompl., ¶¶ 90-91. In 2014, the Ag ency issued a BiOp to analyze the effects on the North Atla ntic right whale. Id., ¶ 98. Loo king at the “waters from Maine through Cape Hatteras, NC,” CL F Compl., ¶ 98, the opinion estim ated that right-whale entanglements from the America n lobster fishery would be unlike ly to increase above 3.25 per year and concluded that the fish ery does not threaten the survi val of the whale. Id., ¶¶ 103-04. The BiOp was “prepared” and “dr afted” in NMFS’s Greater Atlanti c Regional Fisheries Office, which is located in Gloucester , Massachusetts, and signed by GA RFO’s Regional Administrator. See Mot. to Transfer, Attach. 1 (A ffidavit of Michael Pentony), ¶¶ 1, 5. In January 2018, the Center for Bi ological Diver sity, Defenders of Wildlife, and the Humane Society of the United S tates brought suit, alleging that the 2014 BiOp does not comply with the ESA, the MMPA, or the A dministrative Procedure Act. S ee CBD Compl., ¶ 1. The following month, the Conservati on Law Foundation filed a Compla int with substantially similar claims and requests for relief. S ee CLF Compl. After Defendan ts separately moved to transfer both cases to the District Court for the District of Massachuse tts, this Court orde red all parties to submit a notice on their position regarding consolidation. See Minute Order of April 24, 2018. As the parties generally agree d that it would be proper, the Co urt consolidated the cases on May 2, 2018. See Minute Order. It will t hus analyze the Motions t o Transfer under the current4 consolidated posture.
II. Legal Standard Even if a plaintiff has brought its case in a proper venue, a d istrict court may, “for the convenience of parties and witne sses, in the interests of justi ce . . . 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 unde r § 1404(a), then, is the requirement that the case “might have been brought” in the foru m to which the defendant is seeking transfer. Van D usen v. Barrack, 376 U.S. 612, 623 (196 4). In other words, the transfer statute requires that venue be proper in the new forum. Once that threshold condition is m et, district courts have “dis cretion . . . to adjudicate motions for transfer according t o an ‘individualized, case-by-c ase consideration of convenience and fairness.’” Stewart O rg., Inc. v. Ricoh Corp., 487 U.S. 22 , 29 (1988) (quoting Van Dusen, 376 U.S. at 622); see also Pres . Soc’y of Charleston v. U.S. Ar my 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. In evaluating motions to transf er venue, courts in this circuit are instructed to guard against “the danger that a plain tiff might manufacture venue in the District of Columbia . . . [b]y naming high government officials as defendants.” Cameron v. Th ornburgh, 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 wei gh in favor of transfer.” Sierr a 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 sho w that transfer is proper).5 III. Analysis A. Propriety of New Venue Both parties agree that § 1404( a)’s threshold query — whether t he case could have been brought in the proposed venue — i s satisfied here. See CBD Opp . at 6 (conceding that case could have been brought in District of Massachusetts). Under t he 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 leas t one Plaintiff, Conservatio n Law Foundation, has its principal place of business i n 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 fact ors, Defendants have the burde n to show that the “particular circumstances” of the case “render [this] forum ina ppropriate.” Starnes v. McGuire , 512 F.2d 918, 925 (D.C. Cir. 1974). For this determination, t he Court assesses a number of private- and pub lic-interest factors. See Trout Unlimited, 944 F. Supp. at 16. The former include: (1) the plainti ff’s choice of forum; (2) the de fendant’s choice of forum; (3) whether the claim arose elsewher e; (4) the convenience of the p arties; (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 congestio n of the calendars of the transferor and transferee courts; and (3) t he local interest in having loc al controversies decided at home. Id. 1. Private–Interest Factors As with many cases that will be decided on an administrative re cord, the most relevant private-interest factors are th e parties’ choice of forum and w here the claim arose. The Court addresses both below before brie fly discussing those factors re lated to convenience.6 a. Parties’ Choice of Forum When a plaintiff brings suit in its home forum, t hat choice is afforded “substantial deference.” The Wilderness Soc’y v. Babbitt, 104 F. Supp. 2d 1 0, 12 (D.D.C. 2000); Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5, 11 (D.D.C. 2007). That is s o even when all plaintiffs do not reside in the chosen forum. See Van Antwerp, 523 F. Supp. 2d a t 11 (affording deference to all five plaintiffs based on residenc y of one); see also Greater Ye llowstone Coal. v. Bosworth, 180 F. Supp. 2d 124, 129 (D.D.C. 2001) (denying transfer where “two of the five plaintiffs have offices in the District of Col umbia”); Wilderness Soc’y, 104 F. Supp. 2d at 14 (denying transfer where “[f]our of the [eight] plai ntiffs are headquartered in Wa shington, D.C. and two others have offices here”). As Defendants c oncede, at leas t one Plaintiff here is headquartere d in the District. See Mot. at 15; see also CLF Compl., ¶¶ 15, 17. Indeed, both D efenders of Wildlife and The Humane Society have their homes here, and the Center for Biolog ical Diversity also maintains an office in this city. As thr ee of the four Plaintiffs have s ignificant ties to the District, the Court accords Plaintiffs’ choice to bring this claim here “substantia l weight.” Wilderness Soc’y, 104 F. Supp. 2d at 18. In contrast, a defendant’s forum preference “is not ordinarily entitled to def erence.” To show that transfer is appropriate, rather, a defendant “must es tablish that the added convenience and justice of litigating in [its] chosen forum overcomes the . . . deference given to” the plaintiff’s. Tower Labs., Ltd. v. Lush Cosmetics Ltd., 2018 WL 534323, at *4 (D.D.C. Jan. 24, 2018). As discussed in more deta il below, the convenience fact ors are irrelevant here, and the Government advances no argument that justice requires transfer. See Mot. at 15-16. b. Where the Claim Arose Despite the deference typically a fforded a plaintiff’s forum ch oice, it is diminished when7 “the majority of operative facts took place outside the Distric t of Columbia.” Bergmann v. U.S. Dep’t of Transp., 710 F. Supp. 2d 65, 72 (D.D.C. 2010). In APA cases, “courts generally focus on where the decisionmaking proces s occurred to determine where the claims arose.” Nat’l Ass’n of Home Builders v. EPA, 675 F. Supp. 2d 173, 179 (D.D.C. 2009). It is clear from Defendants’ Motion (which Plain tiffs do not rebut) that the cla im largely arose in Massachusetts. The 2014 BiOp at issue here was “ prepared by biologists in GARF O,” which is located in Gloucester. See Pentony Decl., ¶ 5. It was “drafted entirely in the regional office” by staff in that office. Id. Although GARFO s taff “briefed officials at N OAA Fisheries headquarters in Silver Spring, Maryland[,] to ma ke them aware of the work that was being done, . . . the officials in Silver Spring were not substa ntively involved in the develop ment of the BiOp.” Id. This factor thus clearly tips in favor of transfer.

c. Convenience The final three private-interest factors — viz. , the convenience of the parties, the convenience of the witnesses, a nd ease of access to sources of proof — are neutral. Defendants do not argue that they will be i nconvenienced by litigating her e. Plaintiffs obviously find this forum preferable since the y brought the case here. And, althou gh they claim that they would have to incur some costs if the case were transferred, the Cour t disagrees since “it is unlikely [in this administrative-record case] that the parties or the lawyer s for either side will have to appear in court often, and the minimal fees for pro hac vice admission are ‘not subs tantial enough’ to tip the balance in a transfer cas e.’” Oceana, Inc. v. Pritzker, 58 F. Supp. 3d 2, 7 (D.D.C. 2013) (quoting WildEarth Guardians v. U.S. Forest Serv. , 2012 WL 1415378, at *4 (D. Colo. 2012)). For the same reasons, the conveni ence of witnesses and the ease of access to sources of proof are “not likely to be relevant he re.” Id. at 5 (citation omitted).8 * * * Determining which way the privat e-interest factors cumulatively tip thus comes down to whether the claims arising in Ma ssachusetts overcomes the defer ence owed to Plaintiffs’ forum choice. The Court finds that, at best for Defendants, the fact ors are in equipoi se. See Wright & Miller, Fed. Practice & Pro cedure, § 3848 (4th ed. 2018) (“With out more, it is . . . not enough merely to show that the claim arose elsewhere.”); Otay Mesa Pro p. L.P. v. U.S. Dep’t of Interior, 584 F. Supp. 2d 122, 124-25 (D.D.C. 2008) (denying transfer eve n though challenged agency action was developed in transfer ee district). T he public-inter est factors will thus be dispositive here. 2. Public–Interest Factors

a. Judicial Economy Despite Defendants’ contentions , the first two pu blic-interest factors — the transferee court’s familiarity with the gove rning law and the relative con gestion of the courts’ calendars — are neutral with respect to trans fer. The Government’s argumen t that “the District Court for the District of Massachusetts . . . ha[s ] greater familiarity with the history of the management regimes applicable to the waters off of Massachusetts, the fact ual and legal history of that fishery, and the factual and leg al issues implicated by this ca se,” Mot. at 8, gains little traction. The relevant inquiry is not whether a certain court is familiar with the “factual and legal history” of a case, but whether it is mor e familiar with the “governing laws.” Trout Unlimited, 944 F. Supp. 13 at 17 (emphasis added). Plaintiffs here challenge fed eral agency action and charge violations of federal statutes. Resolving this case will thus require statutory interpretation, a task any federal court is competent t o undertake. See Greater Yello wstone Coal., 180 F. Supp. 2d at 129. Indeed, this very Court has issued opinions on New Englan d-centered fisheri es issues in the9 past. See Oceana, Inc. v. Pritzker, 26 F. Supp. 3d 33 (D.D.C. 2014); Conservation Law Foundation v. Pritzker, 37 F. Supp. 3d 254 (D.D.C. 2014). The caseload disparity between t he two courts, moreover, is notgreat enough to have an effect on the transfer analysis . See Mot. at 14 (noting median time for cases to be resolved is 7.9 months in the District of Mass achusetts versus 10.4 months in t his district). Absent a showing that either court’s docket is “s ubstantially mor e congested” th an the other, this factor weighs neither for nor against transfe r. Nat’l Ass’n of Home Builders , 675 F. Supp. 2d at 178; see also Preservation Soc’y, 893 F. Supp. 2d at 57 (finding that when “r elative congestion . . . appears comparable,” judicial-econom y factor not substantial enough to warrant transfer). b. Local Interest The focus here, then, must be on t he final public-interest fact or: the local interest in having local controversies deci ded at home. S. Utah Wilderness Alliance v. Norton, 845 F. Supp. 2d 231, 237 (D.D.C. 2002); Pres Soc’y, 893 F. Supp. 2d at 57. Because the Court finds that this a case of national, rat her than local, importance, th is factor weighs heavily against transfer. In trying to cast the dispute as a parochi al one, Defendants hi ghlight the connection of the lobstering industry to the Bay S tate, noting that it “provide[s ] employment, recreation, and other opportunities to the people of M assachusetts.” Mot. at 10. Wh ile this may be true, that does not make this case a local controve rsy. First, those in Massachuse tts are far from the only ones affected. While “[t]he vast maj ority of American lobster is la nded in states adjacent to the Gulf of Maine,” that description incl udes Maine and New Hampshire, t oo. See Pentony Decl., ¶ 11. Other states along the East Coas t, from Connecticut to Virginia , also land lobster, and NMFS’s decision thus concerns them. I d. The facts here, consequently , present a very different scenario10 from one in which all of the rel evant events and actions occurr ed in the transferee district. For example, in Preservation Society, 893 F. Supp. 2d 49, the c hallenged action depended on parallel state proceedings and would be “funded, overseen, a nd implemented by a . . . state agency on state-owned property. ” Id. at 57. This Court thus h ad little difficulty finding that transfer was appropriate, as the “fundamental issue” in the cas e was “a local controversy in the purest sense.” Id.; see also Trout Unlimited, 944 F. Supp. at 19 (decision made by federal agency in Colorado that directl y affects that sta te’s forests, “water systems, [a nd] wildlife” was local controversy). Here, the reg ional NMFS office (which happ ens to be in Massachusetts) manages the American lobster fi shery, an entity that spans the East Coast from Maine to Florida. The effect on the lobster industr y, moreover, is incidental to the thrust of Plaintiffs’ grievances here, which focus on the right whale. See, e.g., CL F Compl., ¶ 122. That whale is a migratory mammal, spending the s ummer months feeding off the co ast of Maine and Massachusetts before heading sout h to Georgia and Florida for t he winter. Id., ¶ 66. Rather than a case where the disputed resources are “located entirely withi n” the proposed transferee district, see Trout Unlimited, 944 F. Supp. at 17, the wildlife at issue here swims far beyond the shores of Massachusetts. Even if the lobs ter industry has significant ti es to that state, the controversy is far broader in scope. In addition, as this Court has repeatedly noted, the central qu estion is not “whether the people of Massachusetts have a n interest — even a strong one — in the outcome of this case. Instead, the Court must determine whether this is a ‘question[] of national policy or national significance.’” Oceana, 58 F. Supp. 3d at 9 (quoting Oceana v. Bureau of Ocean Energy Mgmt., 962 F. Supp. 2d 70, 77 (D.D.C. Aug. 23, 2013)). Agency action that affects a far-ranging endangered species “is not just a Northeastern problem; it is a national one.” Id. at 10. Whale11 conservation, indeed, has attract ed global attention over the l ast decades. Because neither the lobster industry nor the right wha le is “local” to Massachusett s, the Court finds that this final public-interest factor weighs pow erfully against transfer.
IV. Conclusion In the end, it is Defendants’ burde n to show that the totality of circumstances warrants transfer. Because they have not done so here, the Court will d eny the Government’s Motion to Transfer the case to the District Court for the District of Mas sachusetts. An Order consistent with this Opinion wil l issue this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge

Date: May 10, 2018