United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
W. Molloy, District Judge
August 2018, Plaintiff Western Organization of Resource
Councils ("Western") sued various officials within
the Department of the Interior ("Defendants"),
challenging the reestablishment and operation of the Royalty
Policy Committee ("Royalty Committee" or
"Committee") under the Federal Advisory Committee
Act ("FACA"). The Secretary of the Interior
("Secretary") established the Committee to provide
advice on issues related to the leasing of energy and mineral
resources on federal and Indian lands. See 60 Fed.
Reg. 43, 347, 43, 475 (Aug. 21, 1995). 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.) Ultimately, because the
Committee was improperly established, reliance on or use of
its recommendations is enjoined.
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 an agency's
creation and operation of "advisory committees."
See 5 U.S.C. app. 2 §§ 3(2), 9(a). For
instance, FACA mandates that membership be "fairly
balanced in terms of the points of view represented and the
functions to be performed" and that a committee's
advice 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).
first iteration of the Royalty Policy Committee was chartered
by the Department of the Interior ("Department") in
1995. 60 Fed. Reg. 43, 347, 43, 475 (Aug. 21, 1995). Its
charter was regularly renewed, and the Committee was imbued
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. 19,
876-02 (Apr. 14, 2004). The Committee was reestablished in
its current form in 2017 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. 16, 222-01 (Apr. 3, 2017);
Secretary signed the Committee's charter on March 29,
2017, AR_0016, and published a notice in the Federal Register
on April 3, 2017, AR_0004. 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.
AR_0015. It is administered by the Office of Natural
The Committee has three subcommittees: the Fair Return and
Revenue Subcommittee (the Fair Return in Value Subcommittee);
the Planning, Analysis & Competitiveness Subcommittee;
and the Tribal Affairs Subcommittee (the Tribal Energy
Subcommittee). See AR_0063-64. These subcommittees,
in turn, formed various working groups to address specific
issues. See, e.g., AR_0243 (describing Marketable
Condition Working Group).
date, the Committee has held four meetings, see 82
Fed. Reg. 41, 646 (Sept. 1, 2017), AR_0052 (announcing Oct.
4, 2017 meeting); 83 Fed. Reg. 6, 613 (Feb. 14, 2018),
AR_0232 (announcing Feb. 28, 2018 meeting); 83 Fed. Reg. 22,
989 (May 17, 2018), AR_0646-47 (announcing June 6, 2018
meeting); 83 Fed. Reg. 40, 081 (Aug. 13, 2018), AR_1263-64
(announcing Sept. 13, 2018 meeting), and maintained its
materials at its website: https://www.doi.gov/rpc. However,
the Committee's Charter lapsed in April 2019, two years
after it was chartered. See AR0016 (dated April 21,
2017); 41 C.F.R. § 102-3.3 0(b)(4) (providing for
automatic expiration after two years unless renewed).
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.) Western filed this
action in August 2018, alleging that the Royalty Committee
was established in violation of FACA (Count 1) and that its
operation violates FACA's requirements 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). (Id.)
Following a January 16, 2019 hearing, Counts 3 and 4 were
dismissed on Defendants' motion, leaving Counts 1 and 2.
(Doc. 42); W. Org. Resource Councils v. Bernhardt (W.
Org.), 362 F.Supp.3d 900 (D. Mont. 2019).
the lapse of the Committee's charter, Western argues that
its "injuries persist in the form of (1) unlawfully
withheld Committee materials; (2) the Committee's pending
recommendations to the Department, and; (3) ongoing Committee
work absent a valid charter." (Doc. 49 at 9.) While
Defendants insist all Committee work has ceased,
(see Docs. 52-1, 52-2 (summaries of April 10 and 12,
2019 meetings, indicating expiration of charter on April
21)), they concede that subcommittee and working group
records have not been released, (Doc. 52 at 17), and maintain
that potential future reliance by the Department on existing
Committee recommendations is appropriate, (id. at
2, 2019, Western filed its motion for summary judgment,
(Docs. 48, 49), and on June 3, 2019, Defendants filed their
cross-motion, (Docs. 51, 52).
establishment and operation of the Royalty Committee presents
a concerning case study in the regulation of advisory
committees and their role in government. Through the passage
of FACA, Congress sought to make advisory committees
transparent and accountable. Cummock, 180 F.3d at
284-85. Defendants, ignoring that mandate, seek to render
FACA impotent while essentially conceding violations of the
spirit, if not the letter, of the law. While Western should
not succeed on all of its claims, it has identified a gaping
hole in government accountability.
under FACA are evaluated under the standards set forth in the
Administrative Procedure Act ("APA"), which
authorizes a court to "compel agency action unlawfully
withheld or unreasonably delayed," 5 U.S.C. §
706(1), and to "hold unlawful and set aside agency
action, findings and conclusions found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law," 5 U.S.C. § 706(2)(A). An
agency action is unlawfully withheld if the agency fails to
take a "discrete agency action that it is required to
take," i.e., an action that is "demanded by
law," including "agency regulations that have the
force of law." Norton v. S. Utah Wilderness
All, 542 U.S. 55, 64-65 (2004) (emphasis omitted).
Agency action is arbitrary and capricious if the
administrative record demonstrates that the "agency has
relied on factors which Congress has not intended it to
consider, entirely failed to consider an important aspect of
the problem, [or] offered an explanation for its decision
that runs counter to the evidence before the agency."
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Where an
agency's administrative record is complete and
constitutes the whole and undisputed facts underlying agency
decisionmaking, summary judgment is the appropriate vehicle
to address claims under both § 706(1) and (2). City
& Cty. of S.F. v. United States, 130 F.3d 873, 877
(9th Cir. 1997) ("[T]he function of the district court
is to determine whether or not as a matter of law the
evidence in the administrative record permitted the agency to
make the decision it did.").
FACA considerations remain: (1) reestablishment of the
Committee and (2) public access to subcommittee and working
group meetings and materials.
Reestablishment - Section 9 (Count 1)
to FACA, "new advisory committees should be established
only when they are determined to be essential and their
number should be kept to the minimum necessary." 5
U.S.C. app. 2 § 2(b)(2). An agency must also
"determine  as a matter of formal record . .., with
timely notice published in the Federal Register," that
the new committee is "in the public interest in
connection with the performance of duties imposed on that
agency by law." Id. at § 9(a)(2). Western
argues that the Royalty Committee's reestablishment was
infirm because the Department failed to follow the necessary
consultation process or explain and justify its existence. In
response, Defendants contend that Western's arguments
exceed the scope of its pleadings, the Department followed
the necessary consultation process, and its discretionary
decisions are nonjusticiable. Ultimately, Western raises
persuasive concerns regarding the consultation process and
the underlying basis for the agency's actions.