United States District Court, D. Montana, Missoula Division
W. Molloy United States 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"). In August 2019, this Court determined
that the Committee had been improperly established in
violation of Section 9 of FACA, (Doc. 59 at 8-18), and
enjoined "[f]urther use of or reliance on the Royalty
Committee's recommendations," (id. at 28).
Western now seeks leave to conduct discovery regarding
Defendants' compliance with that order. (Doc. 63.)
the present motion is one for discovery, the fundamental
dispute is over the scope of the injunction. Western argues
that the continual processing of Applications for Permits to
Drill ("APDs") as recommended by the Committee-
even if those recommendations pre-date this lawsuit and the
injunction order- constitutes "[f]urther use of or
reliance on the Royalty Committee's
recommendations." (Doc. 59 at 28.) Defendants, on the
other hand, insist that the Court's order "does not
invalidate, or render useless, agency guidance documents
issued before the Court's injunction."
(Doc. 67 at 13.) For the purposes of post-judgment discovery,
Western has the better argument.
complete factual background is included in the Court's
August 2019 Order. (See Doc. 59 at 2-6.) Relevant
here, Western argues that two guidance documents indicate the
Department's continued use of and reliance on Committee
recommendations. The documents address the procedures that
Bureau of Land Management ("BLM") offices follow
when considering requests for action that affect federal land
or resources, such as APDs under the National Environmental
Policy Act ("NEPA"). According to Western, the
substance of these documents was based on Committee
recommendations proposed by the "Planning, Analysis, and
Competitiveness Subcommittee" and adopted at the Royalty
Committee's June 2018 meeting.
Information Bulletin 2018-061
6, 2018, BLM issued an "Information Bulletin" to
"remind BLM offices of the existing procedures for
streamlining NEPA review under applicable statutes,
regulations, and guidance and to encourage BLM offices to use
these tools consistently and effectively." (Ex. A, Doc.
64-1 at 2-3.) The Bulletin discussed three tools for doing
so, directing offices to attempt to fit new actions into
existing NEPA analyses or apply a categorical exclusion and
to turn to the preparation of new NEPA decision documents
only as a last resort. (Id. at 3.) Western focuses
on the second tool, or the use of categorical exclusions in
reviewing oil and gas leases. As explained in the Bulletin,
"Section 390 of the Energy Policy Act established a
'rebuttable presumption' that the use of a
[categorical exclusion] under NEPA would apply to certain
development activities on federal oil and gas leases."
(Id. at 4.) As such, BLM need not find
"extraordinary circumstances" to apply an
exclusion. (Id.) At the June 2018 meeting, the
Planning, Analysis, and Competitiveness Subcommittee issued a
proposal recommending: "BLM should issue an Instruction
Memorandum (IM) directing all field offices to issue
Categorical Exclusions (CX) when any of the Energy Policy Act
of 2005 . . . Section 390 criteria are met, unless
specifically rebutted." AR0663-64, 709.
Permanent Instruction Memorandum 2018-014
12, 2018, BLM issued a Permanent Instruction Memorandum. (Ex.
B, Doc. 64-2 at 2.) Like the Bulletin, the Memorandum adopts
the three-tiered approach to NEPA analysis, but in the
specific context of Federal minerals being produced from well
pads located entirely on non-Federal land. (Id. at
4-8, 10.) The Memorandum cautions, however, that "the
policy clarifications do not reflect a change in overall
policy but are designed to identify and eliminate unnecessary
permitting and review requirements and inconsistencies where
the BLM has limited authority." (Id. at 16.) In
its June 2018 meeting, the Royalty Committee approved a
second Subcommittee recommendation addressing NEPA review of
non-Federal surface off-lease and analysis of horizontal
wells. See AR0664-65.
argues that the Bulletin and the Memorandum show that
Defendants are continuing to implement the Committee's
recommendations despite the Court's injunction. They
therefore seek post-judgment discovery "to ascertain
that scope of Defendants' compliance and determine the
need, if any, for further proceedings enforcing the
Court's order." (Doc. 64 at 11.) A court has an
"inherent power to enforce its judgments." Cat.
Dep't of Soc. Servs. v. Leavitt, 523 F.3d 1025, 1033
(9th Cir. 2008). "Indeed, a district court should give
careful attention to a request for discovery to establish
noncompliance with one of its judgments." Id.
When considering whether to permit post-judgment discovery,
"the kind and amount of evidence of noncompliance
required to justify discovery is, necessarily, considerably
less than that needed to show actual noncompliance. If
significant questions regarding noncompliance have been
raised, appropriate discovery should be granted."
Id. at 1034.
to Rule 65(d) of the Federal Rules of Civil Procedure, an
injunction must "state its terms specifically  and ...
describe in reasonable detail... the act or acts restrained
or required." Here, the Court enjoined "[f]urther
use of or reliance on the Royalty Committee's
recommendations." (Doc. 59 at 28.) The present defugalty
arises from the word "further." Defendants are
correct that "further" is generally a
forward-looking term. But, continuing to rely on policy
guidance that was, in turn, based on the Committee's
recommendations is further use or reliance. That
interpretation is the only one that is consistent with the
analysis underlying the injunction itself. The Royalty
Committee was unlawful from the start. (Doc. 59 at 25.) Thus,
everything the Committee did and every recommendation it
issued was unlawful as well. Western has raised a significant
question as to whether Defendants continue to rely on
Committee recommendations in the present regardless of when
they were issued.
makes this case distinguishable from Mickelson Farms, LLC
v. Animal & Plant Health Inspection Service, 2018 WL
4259225, at *2 (D. Idaho Sept. 6, 2018). In
Mickelson, the court clarified that its FACA
injunction was "limited to prospective relief,"
allowing plaintiffs to "only challenge future agency
decisions, actions, rules, or protocols." Id.
Retrospective relief was off the table. Id. Here the
issue is not a challenge to the June 2018 adoption of either
the Bulletin or the Memorandum, but rather the continued use
of those documents in the present to approve current
activities. As at least one other court has recognized,
delineating the terms of a FACA injunction may result in an
"admittedly . . . imperfect result." Idaho Wool
Growers Ass'n v. Schafer, 2009 WL 3806371, *4 (D.
Idaho Nov. 9, 2009). But so long as Defendants are taking
action in the present-such as approving APDs-that is based on
the Royalty Committee's unlawful recommendations, that
prospective conduct potentially falls within the scope of the
further argue that even if the injunction reaches certain
past conduct, the policy documents identified here were
issued by the agency not the Committee. But that
implicates the very question Western seeks to answer: what
was the basis of the documents? While Defendants may
ultimately be able to show there has not been a violation of
the injunction, they have not persuasively argued that no
further inquiry is warranted. To the contrary, the timing of
the Bulletin and ...