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edition of the Federal Register (46 Fed. Reg. 30086). The amended complaint also added the Secretary of Agriculture, John R. Block, as a defendant, alleging that he was responsible for regulations governing ingress and egress in conjunction with mineral exploration and development in wilderness areas as well as for preparing, through a delegation from the Secretary of Interior, the environmental impact statement and for making recommendations on pending lease applications. In addition to the relief requested in the original complaint, the amended version asked the court to: (1) enjoin the Secretary of Interior from rejecting pending oil and gas lease applications in the three areas; (2) order the Secretary of Ag. riculture to continue to prepare his recommendations on the pending applications and to prepare the necessary environmental impact statement ("EIS”) pending a final adjudication of the case on the merits; and (3) declare Public Land Order No. 5952 null and void.

Also on June 9, 1981, the plaintiff filed a second motion for a preliminary injunction, requesting that the court enjoin the Bureau of Land Management from rejecting pending lease applications because of the withdrawal and enjoin the Secretary of Agriculture, acting through the Forest Service, from terminating its EIS process.

Meanwhile, on June 4, 1981, Pacific Legal Foundation (“PLF) filed a similar complaint for injunctive and declaratory relief against Secretary Watt in the U.S. District Court for the District of Montana. [Civil Action No. 81-141-BLG] Like the complaints filed in Colorado by MSLF, PLF's action was premised on the Committee resolution directing the Secretary to withdraw the three wilderness areas from disposition under laws pertaining to mineral leasing. The relief requested was also similar; the complaint asked the court to: (1) declare the directive unconstitutional under the separation of powers doctrine; (2) declare the directive an unlawful usurpation of the discretionary authority delegated to the Secre tary of Interior by section 204(e) of FLPMA; (3) declare the directive "arbitrary, capricious, and an abuse of discretion” because there was no rational basis to determine that an “emergency” situation existed in the wilderness areas; and (4) enjoin the Secretary from taking any action to implement the directive.

On June 15, 1981, a stipulation was filed proposing a briefing schedule in the PLF case. Since the parties agreed that the litigation might involve challenges to the constitutionality of section 204(e) of FLPMA, the court was requested to, and subsequently did, formally invite both houses of Congress to participate in the proceedings as amici curiae.

In the MSLF case in Colorado, Judge Carrigan, on his own motion on June 18, 1981, ordered the parties to submit simultaneous briefs on certain jurisdiction and venue issues which had been raised at the temporary restraining order hearing. After these briefs were submitted on July 14, 1981, Judge Carrigan issued an order transferring the action to the District of Montana, pursuant to 28 U.S.C. $1404(a). On July 30, 1981, U.S. District Judge W. J. Jameson of the Montana court consolidated the MSLF case (Civil Action No. 81-168-BLG) with the pending PLF action, with the condition that MSLF comply with the briefing schedule contained in the June 15 stipulation.

On August 6, 1981, Attorney General William French Smith advised Congress by letter that the Department of Justice would urge the court to hold the statute in question-section 204(e) of FLPMA (43 U.S.C. $1714(e))—unconstitutional. The Attorney General suggested that the Houses of Congress might wish to submit briefs amici curiae in support of the statute.

During July and August, motions to intervene in the proceedings were filed by the Bob Marshall Alliance and the Wilderness Society as well as by the Sierra Club. These motions were later granted by the court in an order filed on August 18, 1981.

On August 17, PLF filed an amended complaint reflecting publication of Public Land Order No. 5952 in the Federal Register subsequent to the filing of the original complaint. Secretary Watt remained the sole defendant, and the relief requested was identical, although the amended version sought as well a declaration that (1) the action of the Secretary in issuing the public land order was arbitrary, capricious, and an abuse of discretion and (2) the order was "null, void, and of no legal effect."

Also on August 17, 1981, plaintiffs MSLF and PLF filed motions for summary judgement and supporting memoranda. While the two organizations assigned somewhat different priorities to their contentions, they essentially made the same arguments: (1) the provisions of section 204(e) of FLPMA under which the Committee directed the withdrawal of the wilderness areas were unconstitutional as violative of the separation of powers doctrine (citing in particular Chada v. Immigration and Naturalization Service, 634 F. 2d 408 (9th Cir. 1980); (see page 271 of this report for a discussion of that case); (2) the Committee's withdrawal under section 204(e) ran directly counter to the statutory criteria already established under section 4dX3) of the Wilderness Act, which contemplated mineral leasing in designated wilderness areas until December 31, 1983; (3) the Committee (and the Secretary of Interior) failed to establish that an "emergency" existed to support the issuance of Public Land Order No. 5952; and (4) the withdrawal denied the plaintiffs their rights to due process of law because the orderly processing of their oil and gas lease applications was preempted by the purportedly unlawful withdrawal. PLF argued as well that Secretary Watt acted “arbitrarily and capriciously and abused his discretion" in issuing the public land order, since not only had no basis been established for the scope and duration of the order, but also his decision to issue it was based on "improper influence by Members of Congress."

On September 9, 1981, the Federal defendants filed a cross motion to dismiss the complaint and/or for summary judgment and a supporting memorandum. While the defendants in essence agreed with the plaintiffs on the merits of the case-that is, that the action was controlled by the Chadha decision and that section 204(e), insofar as it authorized one committee of either House of Congress to direct the Secretary of the Interior to take an action which would change the status of public lands, was unconstitutional-they argued that the court should not reach the merits at all because the "plaintiffs have no Article III standing to press these

claims against federal defendants because the injury they allege is too conjectural and speculative.” [Memorandum in Support of Federal Defendants' Cross Motion To Dismiss . . ., September 9, 1981, at 3]

First addressing the standing issue, the Federal defendants argued that the allegations of the MSLF and PLF complaints did not support a claim of standing because they did not demonstrate sufficient actual or threatened injury. The defendants noted that neither MSLF nor PLF had claimed harm to itself as an organization, but had only expressed a generalized and abstract interest in issues of public land development and the effect of government on such matters. Moreover, the defendants asserted, “the mere filing of an application for a non-competitive oil and gas lease ..

.. does not create a property interest or any legal right in a lease" sufficient to confer standing. [Id. at 13] Furthermore, they argued, the “members” and “supporters” of and “contributors" to MSLF and PLF, did not, individually or collectively, have standing:

PLF and MSLF's assertions of injury made on behalf of their "supporters" and "contributors" are in fact far removed from the sort of injury required for standing. Although an organization like PLF and MSLF may have standing to represent its members in certain circumstances, to confer on it standing to represent mere supporters and contributors would be apparently unprecedented and could make the constitutional and prudential limitations on standing meaningless. If a large organization could gain access to the federal courts to challenge any action that might affect the interests of any person who had made a tax-deductible contribution to the organization ("supporter” or “contributor”) or who agreed with the organization's views (“supporter”), then that organization could have virtually unlimited access to the courts. In effect, on such a theory, an organization of any significant size could assert standing to represent in court the grievances of the public at large, a result clearly not in accordance with Article III's limitations on the court's power. Warth v. Seldin, 422 U.S. 490, 499 (1975); Sierra Club v.

Morton, 405 U.S. 727, 737 (1972). (Id. at 15-16] In addition to maintaining that the plaintiffs had failed to meet the constitutional requirements of standing, the defendants also contended that "prudential" standing considerations had not been satisfied and therefore the court's jurisdiction should not be invoked.

Turning next to the plaintiffs' claims that they had been de prived of due process, the defendants asserted that the issue was controlled by Burglin v. Morton, 527 F. 2d 486 (9th Cir. 1975) which rejected mineral lease applicants' claims that a withdrawal of land by the Secretary of the Interior was a taking of property without due process.

The Federal defendants then argued that, if the court found that it had jurisdiction over the complaints, it should order the Secretary to revoke Public Land Order No. 5952 on the ground that the Committee had no statutory authority to direct the Secretary to withdraw the wilderness areas from disposition and the Secretary had no authority to so withdraw the lands. Putting constitutional considerations aside, the defendants contended that an "analysis of FLPMA, its legislative history and applicable cases reveal that FLPMA does not authorize withdrawals from disposition under the mineral leasing laws.[Id. at 19) According to the defendants, since the enactment of FLPMA, the Interior Department's consistent position had been that a "withdrawal” within the meaning of FLPMA applied to dispositions of title of lands and not to leasing. In fact, said the defendants, the Secretary made the withdrawal only to comply with the express directive of the Committee resolution rather than risking "exacerbating a dispute between the Legislative and Executive Branches." [Id. at 20]

Moving to the constitutional issues, the defendants contended that section 204(e) purported to grant to a committee of Congress power which, whether viewed as legislative or executive in nature, could not be delegated to a committee under the Constitution. They explained:

Under that provision, a single Committee of either House of Congress is granted the power effectively to make lawby determining conclusively, without the participation of the Houses of Congress and the President, that an emergency withdrawal of federal lands is necessary-and the power to implement the law-by instructing the Secretary of the Interior to make an emergency withdrawal. Viewed as a grant of legislative powers to a single congressional committee, Section 204(e) is unconstitutional because it violates the procedures for lawmaking specifically set forth in Article I of the Constitution. Viewed as a grant of executive powers to a congressional Committee, Section 204(e) is unconstitutional because it intrudes on executive duties and functions in violation of the constitutional principle of the separation of powers. Chadha v. INS, supra.

(Id. at 23] The defendants emphasized that in their view the decision of the Ninth Circuit in the Chadha case controlled the instant action because section 204(e) shared the “characteristics and constitutional infirmities of the legislative veto" struck down in Chadha. (Id. at 24] Moreover, the defendants argued, the Committee's action overstepped the bounds of constitutional activity because once a Congressional committee "moves beyond its powers of inquiry and undertakes tasks reserved to the other branches of government, it violates the principle of separation of powers.” [Id. at 28]

More specifically, the defendants contended that the Committee action under section 204(e) was legislative in nature and therefore violated Article I, section 7 of the Constitution which requires the concurrence of both Houses of Congress and presentation to the President before a legislative action can become law. They explained:

Here, the "nature or substance” of the Committee resolution was functionally identical to that of legislation. The Committee resolution was not advisory, nor did it concern

itself with internal house-keeping matters. Rather, it re-
quired an executive officer to take an action directly af-
fecting federal property subject to the administration of
that officer. The Committee resolution was, therefore, no
different in its purported result than the exercise of legis-
lative power through legislation. In form, however, there
was a decisive difference; the procedures governing exer-
cises of legislative authority delineated in Article 1, Sec-
tion 7 were not followed in this case. (Id. at 31-32 (footnote

omitted)] If the Committee's action under section 204(e) was considered executive in nature, the defendants insisted that it constituted a Congressional intrusion into executive powers and functions in violation of the separation of powers doctrine. They reasoned:

In this case, it was clearly the Executive's responsibility
to execute the law. Interference with that function by
virtue of the Committee resolution ordering the Secretary
to issue an emergency withdrawal infringed upon the Ex-
ecutive's authority to carry out its constitutional responsi-
bilities. Id.

In addition, by purporting to authorize members of the
House and Senate Committees to exercise executive power
by determining the existence of an emergency necessitat-
ing a withdrawal of public lands, Section 204(e) of FLPMA
has the same effect as authorizing the appointment of the
Committee members to an office of the United States in
contravention of the Appointments and Incompatibility
Clauses of the Constitution.41 These clauses embody the
fundamental principle of the separation of powers. Buckley
v. Valeo, supra, at 124; Myers v. United States, supra, at
116 (1926). The appointment of individuals to Executive of-
fices and the performance of the functions of such offices
are clearly executive responsibilities. Springer v. Phillip-
pine Islands, 277 U.S. 189, 202 (1928). The Court has pro-
hibited the legislature from engrafting “executive duties
upon a legislative office, since that would usurp the power
of appointment by indirection.Id. at 202.
41 The Appointments Clause, Art. II, sec. 2, clause 2, provides that:

(The President) . . . shall appoint . . . all other officers of the United
States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law; but the Congress may by Law vest
the Appointment of such inferior officers, as they think proper, in the

President alone, in the Courts of Law, or in the Heads of Departments.
The Incompatibility Clause, Article I, sec. 6, cl. 2, provides, in pertinent part, that:

No Senator or Representative shall, during the time for which he was
elected, be appointed to any civil office under the Authority of the
United States, which shall have been created . . . during such time; and
no Person holding any office under the United States, shall be a

Member of either House during his Continuance in Office. [Id. at 41-42] On October 8, 1981, U.S. Senator Max Baucus of Montana filed a memorandum amicus curiae in support of a yet-to-be-filed crossmotion for summary judgment by the intervening defendants. (The motion was formally filed five days later. See infra.) Senator Baucus argued that: (1) section 204(e) was a legitimate exercise of

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