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Western Organization of Resource Councils v. Bernhardt

United States District Court, D. Montana, Missoula Division

January 24, 2019

WESTERN ORGANIZATION OF RESOURCE COUNCILS, Plaintiff,
v.
DAVID BERNHARDT, [1] et al., Defendants.

          OPINION AND ORDER [1]

          Donald W. Molloy, District Judge United States District Court.

         In August 2018, Plaintiff Western Organization of Resource Councils ("Western") sued various officials within the Department of the Interior ("Defendants"), challenging the establishment and operation of the Royalty Policy Committee ("Royalty Committee" or "Committee") under the Federal Advisory Committee Act ("FACA"). The Secretary of the Interior established the Royalty Committee to provide advice on issues related to the leasing of energy and mineral resources on Federal and Indian lands. (Doc. 25 at 15.) According to Western, "Rather than pursue its task with the full and transparent participation of [the public], the Committee operates in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal." (First Amend. Compl., Doc. 14 at ¶ 2.) Defendants seek to dismiss Western's complaint pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure. (Doc. 24.) Western seeks to preliminarily enjoin Committee operations, including activities conducted by its subcommittees and working groups. (Doc. 17.) Argument was heard on the pending motions on January 16, 2019.

         As explained further below, Defendants' motion to dismiss is granted as to Counts 3 and 4 but denied as to Counts 1 and 2. Western's request for a preliminary injunction is denied.

         Background

         I. FACA

         "Congress passed FACA in 1972 to address whether and to what extent committees, boards, and councils should be maintained to advise Executive Branch officers and agencies." Cummock v. Gore, 180 F.3d 282, 284 (D.C. Cir. 1999) (internal citation omitted). "Congress recognized that advisory committees are frequently a useful and beneficial means of furnishing expert advice, ideas and diverse opinions to the Federal Government. However, Congress also feared the proliferation of costly committees, which were often dominated by representatives of industry and other special interests seeking to advance their own agendas." Id. (internal quotation marks and citation omitted). Enacting FACA,

Congress struck a balance between these concerns, by preserving the advisory committee mechanism for informing policy decisions, while ensuring "that new advisory committees be established only when essential and that their number be minimized; that they be terminated when they have outlived their usefulness; that their creation, operation, and duration be subject to uniform standards and procedures; that Congress and the public remain apprised of their existence, activities, and cost; and that their work be exclusively advisory in nature."

Id. at 285 (quoting Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 446 (1989)).

         FACA outlines a number of requirements governing the creation and operation of such "advisory committees." See 5 U.S.C. App. II § 3(2). For instance, membership must be "fairly balanced in terms of the points of view represented and the functions to be performed" and a committee's advice must reflect its "independent judgment" without inappropriate influences from the appointing authority or special interests. Id. at § 5(b)(2), (3). Additionally, once established, an advisory committee must open its meetings to the public, id. at § 10(a)(1), publish advance notice of its meetings, id. at § 10(a)(2), and make publicly available records, drafts, studies, and other documents that were made available to or prepared by or for the committee, id. at § 10(b). Additionally, FACA requires federal agencies to "establish uniform administrative guidelines and management controls for advisory committees established by the agency." Id. at § 8(a).

         II. Royalty Committee

         The Royalty Committee was first established in 2004, with a mandate to "review and comment on revenue management and other mineral-related policies" stemming from Federal and Indian mineral leases. 69 Fed. Reg. 19876-02 (Apr. 14, 2004). The Committee's charter lapsed in 2014. It was reestablished in its current form in 2017 with a similar mandate to "advise on current and emerging issues related to the determination of fair market value, and the collection of revenue from energy and mineral resources on Federal and Indian lands," as well as "on the potential impacts of proposed policies and regulations related to revenue collection from such development, including whether a need exists for regulatory reform." 82 Fed. Reg. 16222-01 (Apr. 3, 2017). The Committee is comprised of:

- Seven officials from the Department of the Interior;
- Up to six representatives of governors of states that receive at least $10, 000, 000 annually in royalty revenues from federal leases;
- Up to four representatives of Indian Tribes that are subject to laws relating to mineral development;
- Up to six representatives of various mineral and/or energy stakeholders; and
- Up to four members representing academic and public interest groups.

(Royalty Committee Charter, Ex. R, Doc. 18-18 at ¶ 12.) It is administered by the Office of Natural Resources Revenue. (Id. at ¶ 6.)

         To date, the Committee has held four meetings, see 82 Fed. Reg. 41646 (Sept. 1, 2017) (announcing Oct. 4, 2017 meeting); 83 Fed. Reg. 6613 (Feb. 14, 2018) (announcing Feb. 28, 2018 meeting); 83 Fed. Reg. 22989 (May 17, 2018) (announcing June 6, 2018 meeting); 83 Fed. Reg. 40081 (Aug. 13, 2018) (announcing Sept. 13, 2018 meeting), and maintains its materials at its website: https://www.doi.gov/rpc.

         The next Committee meeting was scheduled for January 31, 2019, but that meeting has since been cancelled due to the lapse in appropriations. (See Schindler Decl., Doc. 35-1 at ¶ 5.) Additionally, all members of the Committee were told that no "[Committee]-related work should occur during the shutdown, including any informal collaboration among non-federal members of the Committee." (Id.) All subcommittee meetings were also cancelled for the duration of the shutdown. (Id. at ¶ 3.) However, Western has pointed to news articles indicating certain leasing work was to continue despite the shutdown, (see Doc. 36 at 4 (citing "Trump Administration Working on Arctic Oil Leases Despite Shutdown," Reuters (Jan. 9, 2019))), raising some question as to continued operations.

         III. The Present Case

         Western is a Montana-based organization self-described as "a regional network of grassroots community organizations," that seeks "to build sustainable environmental and economic communities that balance economic growth with public health and stewardship of land, water, and air resources." (Doc. 14 at ¶ 17.) In its original complaint, Western named as defendants the Department of the Interior; the Bureau of Land Management; Ryan Zinke, Secretary of the Interior; Vincent DeVito, Counselor for Energy Policy to the Secretary of the Interior; and Brian Steed, Deputy Director of Policy and Programs for the Bureau of Land Management. (Doc. 1.) Western alleges that the Royalty Commission was established in violation of F AC A (Count 1) and that its operation violates FACA's requirement that it: (1) provide public notice of its meetings and publicly disseminate its materials (Count 2); (2) ensure that its membership be "fairly balanced" (Count 3); and (3) exercise independent judgment without inappropriate influences from special interests (Count 4).

         On November 2, 2018, Defendants moved to dismiss Western's original complaint, arguing that (1) Western lacked standing, (2) Counts 3 and 4 are non-justiciable, and (3) Counts 1 and 2 fail to state a claim. (Doc. 12.) On November 23, 2018, Western filed its First Amended Complaint, replacing Defendant DeVito with Scott Angelle, Director of the Bureau of Safety & Environmental Enforcement. (Doc. 14); see also Fed. R. Civ. P. 25(d). Although Western added factual information, the First Amended Complaint contains the same four claims as the original complaint. In light of Western's amended pleading, Defendants' motion to dismiss, (Doc. 12), was denied subject to renewal, (Doc. 15).

         On November 28, 2018, Western filed a motion for preliminary injunction, asking the Court to enjoin any further Committee and subcommittee meetings and operations-specifically the one scheduled for January 31, 2019-until Defendants comply with FACA's implementing regulations. (Doc. 17.) On December 17, 2018, Defendants filed a renewed motion to dismiss combined with their response to Western's motion. (Doc. 24.) The grounds for dismissal were substantially the same as those argued in Defendants' previous motion. (Compare Doc. 13 with Doc. 25.) On January 10, Defendants unsuccessfully sought to stay proceedings in light of the lapse in appropriations. (Doc. 34.) In that filing, Defendants indicated that the January 31 Committee meeting was cancelled, and other Committee operations were suspended during the lapse. (Doc. 35.) Western argues, however, that certain subcommittee and working group work is slated to continue. (See Doc. 36.)

         Summary Conclusion

         The parties take a fundamentally different view of the nature of F AC A. Western's allegations, and the basis for its pending motion, rest on the principle purpose behind its enactment: the requirement that advisory committee work be both efficient and transparent. Defendants, on the other hand, base their arguments on the minimum required to comply with the text of the Act. While the dichotomy of these approaches is not dispositive, it highlights a troubling trend within the current administration's view of governing and the rule of law.

         The survival of the majority of Western's claims depends on whether or not the Bureau of Land Management's ("BLM") implementing regulations under 43 C.F.R. subpart 1784 apply to the Royalty Committee. Because they do not, and FACA alone does not provide an adequate basis for judicial review, all but two of Western's claims are ...


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