United States District Court, D. Montana, Missoula Division
OPINION AND ORDER 
W. Molloy, District Judge United States District Court.
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.
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.
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).
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)).
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).
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
- 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
- Up to four members representing academic and public
(Royalty Committee Charter, Ex. R, Doc. 18-18 at ¶ 12.)
It is administered by the Office of Natural Resources
Revenue. (Id. at ¶ 6.)
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.
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.
The Present Case
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).
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).
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.)
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.
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