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section 4(d)(3) of the Wilderness Act of 1964, which permit-
ted mineral exploration and leasing activities until that
date.

The scope and duration of a withdrawal order under sec-
tion 204(e) are within the sound discretion of the Secretary
of the Interior, to be exercised in accordance with the
goals and procedural requirements of the FLPMA, subject
to judicial review. The Secretary has the power to revoke,
after a reasonable time, a withdrawal order made at the
request of either the House Committee on Interior and In-
sular Affairs or the Senate Committee on Energy and Nat-

ural Resources. (Id., at 1005] Given his holding on the statutory interpretation and effect of section 204(e), Judge Jameson stated that it was unnecessary to reach the question of the provision's constitutionality. Nonetheless, while admitting that "a court should not pass upon constitutional questions unless their adjudication is unavoidable and also that it is not the function of this court to give an advisory opinion," he proceeded to do so, “in view of the unique situation presented, with a close question with regard to the proper interpretation of section 204(e) and the time constraints.” [Id., at 1001] His “tentative conclusions" were as follows:

If section 204(e) were interpreted to permit a congressional committee, by a majority vote, to direct the Secretary to withdraw wilderness areas until January 1, 1984, (in effect amending the Wilderness Act), the statute would be unconstitutional under the holding in Chadha v. Immigration and Naturalization Service, 634 F. 2d 408 (9 Cir. 1980), and other case law. Under the interpretation of section 204(e) set forth above as the conclusion of this court,

there is no constitutional violation. (Id., at 1005] Judge Jameson ended his opinion with a discussion of a remedy. He stated first that in view of the new policies and procedures recently adopted by the Secretary, as set forth in his letters of November 19, 1981 to the chairman of the relevant Congressional committees, and the resolution adopted on November 20, 1981 by the House Interior Committee (see footnote 1, supra), the court would retain jurisdiction of the consolidated cases until July 1, 1982. This would enable the Secretary to consider and process, within his descretion, the plaintiffs' lease applications under a proper interpretation of section 204(e) (i.e., recognizing his discretion as to the duration of the withdrawal), and pursuant to the current policies of the Department. As noted at the outset, Public Land Order No. 5952 was ordered revoked and the Secretary was directed to determine the scope and duration of the withdrawal of the three wilderness areas.

On January 27, 1982, the Federal defendants filed a motion for clarification and reconsideration of Judge Jameson's judgement and a supporting memorandum. The defendants sought clarification because in their view that part of the judgment ordering the Secretary to determine the scope and duration of the withdrawal of the three wilderness areas was inconsistent with the directive to

revoke Public Land Order No. 5952. This was so, they argued, be cause if the Secretary were to revoke the land order as directed, there would be in existence no withdrawal as to which he could establish its scope and duration. Further, the defendants sought clarification of that part of the order which directed the Secretary to comply with the “voluntary nonstatutory arrangement" for processing lease applications embodied in his November 19, 1981 letters to the relevant committees. The court, they said, had no jurisdiction to issue such a directive. Finally, the defendants asked clarification of that part of the judgement in which the court stated that it would retain jurisdiction over the matter until July 1, 1982. Again, they contended that the court lacked jurisdiction to supervise the compliance of the Secretary with the voluntary arrangement, if that was the basis for continuing jurisdiction.

The defendants sought reconsideration of the judgment because in their view: (1) the court's construction of section 204(e) as authorizing the Secretary to determine the scope and duration of a withdrawal was not supported by the statute or its legislative history and presented serious practical problems of implementation; (2) if the court wanted to avoid the constitutional issues, it could not require the Secretary to recognize the Committee resolution as binding on him in any manner (i.e.

, in directing the Secretary to determine the scope and duration of a committee-ordered withdrawal, the court presumed the constitutionality of the withdrawal in the first instance); and (3) the constitutional issues could be avoided only by construing the committee's powers under section 204(e) as wholly advisory, but that construction was not supported by the plain language of the provision. Finally, the defendants insisted that reconsideration was necessary becuse the Chadha case required that section 204(e) be held unconstitutional.

On February 8, 1982, the PLF plaintiffs filed a memorandum in opposition to the Federal defendants' motion for clarification and reconsideration. PLF argued that the Secretary's obligations under the judgment were clear and that no new basis had been set forth which would mandate reconsideration.

On February 18, 1982, the MSLF plaintiffs filed a memorandum in support of the Federal defendants' motion. In MSLF's view, clarification would prevent further injury to MSLF members whose lease applications could still be delayed by the uncertain status of the wilderness areas, and reconsideration of the constitutional issues would prevent further litigation regarding the meaning of section 204(e). MSLF contended that Judge Jameson had de facto found the section constitutional and reiterated that for a committee to exercise the power to make the Secretary act at all violated the separation of powers doctrine, the bicameralism principle and the Presentment Clause.

On February 25, 1982, the Sierra Club filed its response to the defendants' motion, stating that, although it seemed "unnecessary," it would not be inappropriate for the court to clarify its decision that the Secretary must honor a committee request for an emergency withdrawal. However, the Sierra Club opposed the request for reconsideration of the constitutional issues, claiming that the request was no more than a renewal of the arguments the court had already rejected.

On February 26, 1982, the Bob Marshall Alliance and the Wilderness Society filed their response to the Federal defendants' motion. The intervenors did not oppose clarification (although they found no compelling necessity for it), but they resisted reconsideration since no new material facts or legal points had been asserted.

On March 1, 1982, the House and Senate amici jointly filed a suggestion of mootness and a memorandum in response to the motion for clarification and reconsideration. The amici argued that injunctive relief was no longer possible and that therefore the suit should be dismissed. They explained:

Since this Court issued its comprehensive opinion in these cases on December 13, 1981,... the Secretary of the Interior has taken steps which have eliminated the lively and concrete aspects of the controversy at issue: he has replaced the public land order withdrawing the Bob Marshall Area with a new policy deferring leasing in all wilderness areas until the end of the 97th Congress

In light of the Secretary's actions, these cases should be dismissed as moot. Plaintiffs brought their suits to preclude rejection of their lease applications under a withdrawal order issued pursuant to section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. $1314 (e) (1976). They no longer face rejection of their lease applications due to section 204(e): the section 204(e) withdrawal order has been revoked, and apparently there will not be another such order pursuant to the House committee resolution which initiated this matter. Instead, the status of plaintiffs' applications will henceforth depend on the general administrative policy of deferring all lease applications in wilderness areas announced by the Secretary. Because further judicial consideration of plaintiffs' challenge to the constitutionality of section 204(e) cannot change the status of plaintiffs' lease applications, such consideration would be purely advisory. Since [t]he controversy between the parties has thus clearly ceased to be definite and concrete' and no longer 'touch[es] the legal relations of parties having adverse legal interests,"'' DeFunis v. Odegaard, 416 U.S. 312, 317 (1974), quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937), these cases should be dismissed. [Suggestion of Mootness . . . of the

Congressional Amici . . ., March 1, 1982, at 1-2] If the court did not dismiss the action because of mootness, the amici stated that they did not oppose clarification of that part of Judge Jameson's order dealing with the Secretary's procedures for lease processing. Apart from the clarification, the amici opposed the defendants' motion, also asserting that no new facts or authority had been cited to justify it.

Status—The case is pending in the U.S. District Court for the District of Montana.

The complete text of the December 16, 1981 memorandum decision of the district court, as amended, is printed in the “Decisions" section of this report at page 557.

VIII. Constitutional Powers of Congress Idaho v. Freeman (formerly Goulding)

Civil Action No. 79-1097 (D. Idaho) and Nos. 82-3016 and 82

3008 (9th Cir.)

Carmen v. Idaho

Nos. 81-1312-ADX and 81-1313—CFX (U.S. Supreme Court)

National Organization for Women, Inc. v. Idaho

Nos. 81-1282-ADX and 81-1283-CFX (U.S. Supreme Court) On March 22, 1972, Congress passed, and submitted to the states for ratification, House Joint Resolution 208 proposing the TwentySeventh Amendment to the Constitution of the United States, commonly known as the Equal Rights Amendment (“ERA”). House Joint Resolution 208 provided, in pertinent part, as follows:

That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission by the Congress:

ARTICLE

“SEC. 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

"Sec. 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

"Sec. 3. This amendment shall take effect two years after the date of ratification." On March 24, 1972, the legislature of the state of Idaho adopted the ERA. In its adopting resolution, the Idaho legislature included the original seven year time limitation for ratification prescribed by Congress in House Joint Resolution 208:

Be it resolved by the Legislature of the State of Idaho, That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution, when ratified by the legislatures of three-fourths of the several states within seven years from the date of its submission by Congress: [Senate Joint Resolution No. 133 of

the State of Idaho] In accordance with Federal law, Idaho's adopting resolution was transmitted to the General Services Administration ("GSA"), an agency of the Federal Government, where it was recorded. Howev. er, on February 11, 1977, Idaho Secretary of State Pete T. Cenarrusa officially notified GSA that the state of Idaho had rescinded its earlier adoption of the ERA. In addition, he requested that the Administrator of GSA officially announce that the resolution of the Idaho legislature adopting the ERA would no longer be recognized. Secretary of State Cenarrusa also asked that the adopting documents previously filed with GSA be returned. Both requests were denied.

On October 20, 1978, President Carter signed into law House Joint Resolution 638. This law, which had been passed by Congress by simple majority vote, extended the ratification period for the ERA until June 30, 1982. At no time between March 22, 1972 (when Congress had originally submitted the ERA for ratification) and March 22, 1979 (when the original seven-year ratification period expired) did the required number of states (thirty-eight) pass the ERA. Also, at no time during this period was the ERA ratified by the state of Arizona.

On May 9, 1979, a four count complaint for declaratory and injunctive relief was filed in the U.S. District Court for the District of Idaho by the states of Idaho and Arizona and their legislatures. Named as the sole defendant was Paul E. Goulding, in his official

capacity as Acting Administrator of GSA. - Count I of the complaint alleged that by refusing to officially rec

ognize Idaho's rescission resolution, the defendant violated two rights guaranteed to the Idaho state legislature by Article V of the U.S. Constitution and the Tenth Amendment to the Constitution: (1) the right to rescind a previous adoption of a proposed amendment prior to ratification by three-fourths of the states; and (2) the right of the legislature to act unfettered by the actions of prior legislatures. It was also claimed that defendant's actions subverted the official policy of the state of Idaho, in violation of Article V and the Tenth Amendment, and deprived members of the Idaho legislature of the effectiveness of their votes, in violation of Article V and the Fifth, Tenth, and Fourteenth Amendments.

With respect to the state of Arizona, Count I alleged that the defendant's failure officially to recognize the rescission resolutions of Idaho and four other states frustrated the implementation of the policy of the state of Arizona that the ERA not be adopted. It was also claimed that the defendant's actions undermined the power and authority of Arizona to oppose the ERA, and deprived Arizona legislators of the effectiveness of their votes. Again, Article V and the Fifth, Tenth, and Fourteenth Amendments were cited in support of these contentions.

Count II claimed that Idaho's ratification of the ERA was null and void not only because of the superseding rescission resolution, but also because Idaho's adopting resolution, by its own terms, became a nullity when the seven-year ratification period expired on March 22, 1979. The defendant's failure to recognize this alleged fact was again alleged to have violated the constitutional rights of the state of Idaho, its legislature, and its individual legislators. The allegations of the state of Arizona under Count II were identical to its allegations under Count I.

In Count III it was alleged that H.J. Res. 638, which extended the ratification deadline, was unconstitutional under Article V and Article I, Section 7 of the Constitution for two reasons. First, by extending the ratification period, it altered a material portion of the originally submitted joint resolution after Idaho had acted in reliance on the original time limitation provision. Second, the plain

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