On August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts 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.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests.
The Department essentially contended that many the actions that are the basis of this complaint are discretionary actions and should not be subject to judicial review, and in any case the committee has been disbanded, suggesting that it would be impossible to provide any meaningful relief to the plaintiffs. The court held that all counts but the first count should be dismissed; it was clear that the required Federal Register notices had been provided, and most of the relief sought by the plaintiffs was not countenanced by FACA. However, the reestablishment of this committee was a final action that could be reviewed under the provisions of the Administrative Procedure Act, which provides that an action “unlawfully withheld”—such as failing to adhere to the consultation requirements of the applicable GSA rules—which provides a basis for judicial review. Accordingly, the court has jurisdiction, and enjoined the future use or reliance by the Department of any of the Royalty Committee’s recommendations because the advisory committee was established in violation of the law.