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"an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Here it appears that the items set out in paragraph 1 above, including the preparations of any witness who testified before the committee clearly falls within the privilege and consequently no judicial inquiry should be permitted; See Peroff v. Mavel, 421 F.Supp 570 (D.D.C. 1976). In this regard the court feels that while Gravel v. United States, 408 U.S. 606 (1972) may be read as denying protection to preparation for hearing it is distinguishable. First, Gravel involved an investigation of possible criminal acts by third parties. Secondly, the relationship between the investigation and the legislative function of the committee involved were much more attenuated than in this case.

Likewise, the new releases in Hutchinson v. Proxmire, 443 U.S. 111 (1979) were not intricately intertwined with the hearings as were the new releases and summaries of testimony involved here. Neither were they widely distributed, but their use was limited to the hearings themselves.

Finally, no inquiry can be made as to statements made by witnesses to the Committee, information obtained for the hearing or conclusions drawn by the Committee.

On the other hand, the Speech or Debate Clause would not appear to cover instances involving contacts with other Federal agencies such as the Antitrust Division of the Department of Justice, The Packers and Stockyards Administration, the FTC and the SEC seeking to influence these agencies actions regarding IBP; Hutchinson v. Proxmire, 443 U.S. 111 (1979); United States v. Brewster 408 U.S. 501 (1972).

Finally, the court is unable to see how inquiry into the reason for the Bagley termination could be found to be a protected act. The Congressional deponents have made no attempt to show how inquiry into these matters would infringe in any way upon the leg. islative process.

It is therefore ORDERED Deponents' motion to quash is granted except that they may be deposed upon the following areas:

1. Contacts with other Federal agencies which resulted from the actions of the Gorman defendants.

2. The post hearing investigation into Bagley's termination by Dubuque Packing Company. September 29, 1981.

JAMES D. HODGES, JR., Magistrate, United States District Court,

34

1158 n. 5.32 The Secretary followed the Committee's request and withdrew the land the next day.

Section 204(e) was invoked again six months later when the Committee decided (1000) that exploratory drilling for uranium on public lands in the Casitas Reservoir Watershed would endanger the water supply of the cities of Ojai and Ventura, California. 33 On May 4, 1979, Chairman Udall sent a letter to the Secretary of the Interior which stated in part: “The Committee requests that you take appropriate action for the withdrawal of these lands at the earliest possible date.” Again the Secretary followed the Committee's request and withdrew the land.

Significantly, in neither of these situations did the Committee attempt to direct the Secretary as to the duration of the requested withdrawal. Instead, the Secretary exercised his authority under section 204(e) to set the scope and duration of the withdrawals.3

The language "urge" and "request" indicates that the Committee itself initially interpreted section 204(e) to grant it only the limited authority presently described in the Senate's memoranda. Had the Committee believed it had the authority to dictate the scope and duration of a withdrawal, it seems likely that it would have exercised that power in the watershed case, where public health and safety were threatened.

The Secretary argues that it would not “appear reasonable,” assuming the constitutionality of section 204(e), to deny the Committee's power to determine both the necessity and duration of the withdrawal. The Committee's authority to require a temporary withdrawal, however, empowers it to maintain the status quo unitl both congressional committees receive reports from the Secretary.35 Either committee may then seek appropriate legislation. This interpretation of section 204(e) does not render it superfluous, but instead gives the committees authority which is reasonably "in aid of legislation.”

[12] In summary, although nothing in section 204(e) gives the Secretary the express authority to revoke a committee initiated emergency withdrawal, both the language and history of the among the questions which Mr. Singman refused to answer were requests for the following information:

32 The letter from Chairman Udall stated in part:

[I]n view of the most recent selections filed by the State of Alaska, its new lawsuit and its threat to seek immediate judicial remedies to prevent administrative actions to protect these lands, I must emphasize to you, on behalf of the Committee on Interior and Insular Affairs of the U.S. House of Representatives that an emergency exists with respect to the national interest lands. Extraordinary measures must be taken now to assure the preservation of the important values in these lands, which will be lost if such measures are not promptly effected. We urge you to exercise your authority under section 204(e) of the Federal Land Policy and Management Act of 1976 immediately to assure that these significant values are saved. 462 F.Supp. at 1158 n. 5. Neither the validity of the Committee's action nor the constitutionality of section 204(e) were considered in this case.

33 On May 2, 1979, the Committee resolved “that it seeks the immediate withdrawal of (the watershed lands) from all forms of appropriation under the public land laws, including the mining laws but not mineral leasing laws, subject to valid existing rights." Resolution of the Committee on Interior and Insular Affairs, United States House of Representatives, May 2, 1979

34 Public Land Order No. 5653 as amended by Public Land Order No. 5654 (Alaska Lands); Public Land Order No. 5662 (Casitas Reservoir Watershed).

35 The parties recognize, as does the court, the problems presented in determining how long the Secretary must maintain an order before exercising his discretion to revoke the order. The parties and amici who support this discretionary power agree that it should not be exercised until a "reasonable time" has elapsed. Since this issue is not presently before the court, it is not necessary to fix a specific time. It does seem reasonable, however, that the withdrawal remain in effect at least until the reports required by section 204(e) are filed with the committees.

(1) The substance or even the general nature of his conversation with Mr. Duffy described in the memorandum;

(2) Whether he had any reason to doubt the accuracy of the Duffy memorandum;

(3) Whether he advised his client that he would speak to Mr. Duffy; or whether he later reported to his client that he had spoken with Mr. Duffy;

(4) Identity of the client on whose behalf he claimed attorneyclient privilege; and specifically whether the client was NICOA or Robert Holcomb;

(5) The date he began representation of the unidentified client; (6) The total fees which he collected from NICOA;

(7) Whether Mr. Ratliff made any contribution toward the payment of fees due Mr. Singman from third parties prior to the time that Mr. Singman began to represent Mr. Ratliff;

(8) Whether he knew of a pre-raid meeting at which Mr. Holcomb was present;

(9) Who first told him about the raid, and the substance of that conversation;

(10) The substance of conversations with Mr. Ratliff in August, September or October 1967 and whether the discussions with Mr. Ratliff related in any way to the McSurelys;

(11) Whether he had a conversation with Mr. Holcomb in which Mr. Singman communicated the fact that the raid took place;

(12) Whether he was ever consulted with respect to problems allegedly being created by VISTA personnel; whether he had ever prepared reports with respect to either VISTA activity or alleged subversive activities in Kentucky; or whether he had ever prepared a report which in any way dealt with the prosecution of the McSurelys;

(13) Whether his files contain copies of telegrams to Congress with respect to getting VISTA out of Kentucky, and if so, whether he participated in the drafting of those telegrams; the subject matter and date of a file entitled “Report from Washington"; and whether his files contain minutes of NICOA meetings.

Mr. Singman concedes that he did not represent Mr. Ratliff, Mr. Duffy or the Subcommittee before or during the period of time to which the questions refer.

The information that Mr. Singman refused to reveal breaks down into five general categories:

(1) Refusal to answer questions about his communication to Mr. Duffy;

(2) Refusal to identify the client on whose behalf he asserted the attorney-client privilege, or to specify when he represented this client:

(3) Refusal to describe his fee arrangements with NICOA and with Mr. Ratliff;

(4) Refusal to answer questions about communications other than the Duffy memo; and

(5) Refusal to answer general questions about the contents of his House Committee has passed a resolution revoking its previous resolution the case might well be different. Counsel recognized that if the House Committee on May 21 has passed a resolution similar to the resolution passed on November 20, there would be no constitutional problem, but contends that the May 21 resolution is still in effect, and “so long as the May 21 resolution is in effect, the unconstitutional actions persist.” This problem could, of course, be resolved by a resolution of the House Committee clarifying its November 20 resolution to provide expressly that is was applicable to the three wilderness aeas in question, thus superseding the May 21 resolution.

Action on the Baucus bill, introduced on October 21, 1981, after receipt of the Secretary's report, would resolve most of the issues raised in this case. All parties agree that Congress may withdraw lands from leasing by the enactment of appropriate legislation. If the Baucus bill should be enacted, the Bob Marshall, Scapegoat and Great Bear Wilderness areas would be withdrawn from all forms of mineral leasing as of May 21, 1981. If the bill fails to pass, these wilderness areas would be in the same position as other congressionally designated wilderness areas and the Secretary could proceed in accordance with the policy set forth in his letters to the committee chairmen.

VI. CONSTITUTIONALITY As stated above, questions relating to the necessity of reaching the constitutional issues and their resolution depend upon the interpretation and effect of section 204(e). I recognize that the 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. Nevertheless, in view of the unique situation presented, with a close question with regard to the proper interpretation of section 204(e) and the time restraints, I will address briefly the constitu[1002]tional issues and indicate my tentative conclusions. 37

A. DURATION ESTABLISHED BY COMMITTEE (13) If section 204(e) were interpreted to authorize the Committee to dictate the scope and duration of an emergency withdrawal, I would be compelled by Chadha to declare it unconstitutional. In Chadha, the Executive branch of the Government, acting through an inquiry officer of the Immigration and Naturalization Service (INS) had conducted an administrative hearing on the deportation of Jagdish Rai Chadha. The officer determined that although Chadha was otherwise deportable, he should remain in the United States to avoid extreme hardship. Several months later, the House of Representatives passed a resolution pursuant to section 244(c)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1254(c)(2) (1976), which disapproved of the suspension of Chadha's deportation and effectively ordered him to be deported.

37 If I am correct in my conclusion with respect to the interpretation and effect of section 204(e), it is, of course, unnecessary to reach the question of its constitutionality. If I am wrong and MSLF and the federal defendants have correctly interpreted the section, it would be neces sary to resolve the constitutional issues.

Chadha petitioned the Ninth Circuit Court of Appeals to review the constitutionality of section 244(c)2) of the INA.38 After a schol. arly and detailed consideration of “the pertinent first principles of the constitution,” 634 F.2d at 420, the court held that section 244(c)(2) contravened the separation of powers doctrine and was therefore unconstitutional. The concern in Chadha, as here, was whether the legislature has undertaken to exercise a power necessarily but implicitly conferred elsewhere by the nature of an institutional government: power such as the executive authority faithfully to execute the laws, U.S.Const., art. II, § 3, and the judicial power to determine cases or controversies, id., art. III, § 2.

Id. at 421. As the court noted, determination of these issues is assisted by defining a constitutional violation of the separation of powers as

an assumption by one branch of powers that are central or
essential to the operation of a coordinate branch, provides
also that the assumption disrupts the coordinate branch in
the performance of its duties and is unnecessary to imple-

ment a legitimate policy of the Government. Id. at 425. Section 204(e) fails this test for the same reasons section 244(c)2) of the INA ailed in Chadha.

First, if section 204(e) is viewed as a device for correcting executive misapplication of a statute, the Committee "is performing a role ordinarily a judicial or an internal administrative responsibility.Id. at 430.39 As with section 244(c)(2) of the INA, this would disrupt the relationship between the judiciary and persons who could otherwise invoke its jurisdiction to review agency decisions. Individuals would no longer be "guaranteed the constraints of articulated reasons and stare decisis in the interpretation", id. at 431, of wilderness, mining and mineral leasing, and other public lands legislation. Moreover, the integrity of the third branch would be undermined by the Committees' power under section 204(e) to prevent the Judiciary's review of Executive action under these statutes. (1003) There would be "virtually no procedural constraints on the ultimate (committee) decision nor any provision for review of its) legal or factual conclusions." Id. 40

38 The case presented a novel question, for as Judge Kennedy noted: “no circuit or Supreme Court authority we have found holds that the Legislature has impermissibly invaded the prerog. ative of the Executive or the Judiciary absent a clause in the constitution which confers the power upon another branch with great specificity.” 634 F.2d at 420.

39 The minutes of the May 21 meeting indicate that a majority of the Committee believed that the Department of the Interior "would not sanction de facto withdrawal” and would proceed to consider and issue leases in these wilderness areas, the ones we are considering, unless we act formally to withdraw." (Representative Seiberling, Transcript of May 21 meeting at 36). Chairman Udall stated: “It is our job to ride herd on them to make sure that whoever is in power, to make sure the statutes are enforced." Id. at 45.

40 At the Committee meeting on November 20 Chairman Udall in referring to the May 21 meeting said in part:

Here was the Secretary of Interior-with no hearings, no warning to the local people, the local congressmen, anyone else-going to permit exploration in the oldest and some think probably the best of all of our wilderness areas. On the other hand, we were coming back with a blunderbuss and saying without any hearings, without any testimony before this committee, we proposed to declare an emergency and lock up for three years any further exploration in those wilderness areas.

It seemed to me that both actions go a little bit too far. Tr. November 20 meeting at pg. 23.

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