Section 204(e) could also be viewed as a "means" for sharing the administration" of wilderness and public lands statutes "with the Executive on an ongoing basis." Id. at 429. In effect, the Committee would be filling "the interstices of statutory criteria and thereby supplement[ing] the Executive's implementation of the statute." Id. As noted in Chadha, however, "This addition of more precise statutory criteria on an accretive, case-by-case basis is, in short, law enforcement." Id. at 431. (Footnotes omitted)41 The proper devlopment and execution of the administrative "process can be thwarted if legislative interference, constant in its potentiality, can be exercised in any given case without a change in the general standards the legislature has initially decreed." Id. at 432.

Finally, it might be argued that an unrestricted emergency withdrawal could be viewed as the "exercise of a residual legislative power. . . falling short of statutory amendment, which would, of course, require the observance of formal constitutional procedures for legislation." Id. at 429. It is undisputed that the "Property Clause," Article IV, Section 3, Clause 2, United States Constitution, entrusts Congress with complete power over the public lands. Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291, 49 L.Ed.2d 34 (1976). That power, however, is subject to the requirements of bicameralism, "one of government power." Chadha, 634 F.2d at 434.42

Congress debated The Wilderness Act for eight years, spending much of that time working out a compromise between the congressional supporters of the conservationists and those of the mining industry. Only after prolonged consideration was the Act passed, with both Houses of Congress agreeing to leave wilderness areas open to mineral exploration and leasing for twenty years. That period ends on December 31, 1983, the same day the present withdrawal order ends. At the November 20, 1981 meeting of the House Committee Chairman Udall made the following comment with regard to a proposed resolution to require a three year emergency withdrawal of the entire wilderness system:

Chairman Aspinall made a big compromise with the
mining industry and agreed they would have 20 years.

[1004] What we would be doing if you take that drastic actionwithout a day of hearings, any consideration, any witnesses—you would be saying to the industry people, "We told you you could

One supporter of the May 21 resolution, Representative Seiberling (also Chairman of the House Subcommittee on Public Lands and National Parks), said that he thought "this committee has a right to participate in those [the Secretary's] decisions and get in on the take off before we have to get in on the crash landing. That is what this resolution indicates we wish to do." Tr. 32. Another member of the Committee, however, expresed the following concern: "By passing this resolution it seems to me... that we are serving notice to the American public that Congress wishes to reserve the right to reconsider the legislation it has enacted on a case by case basis as if it were an administrative body or court." Tr. 61.

42 The principle that the House, the Senate, and their committees may independently exercise authority ancillary to legislation, e.g., committee power to investigate and subpoena witnesses, McGrain v. Daugherty, 273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927), committee power to decide which bills to take up and consider, and when to report matters to the floor, Atkins v. United States, 556 F.2d 1028, 1062, 214 Ct.Cl. 186 (1977), cert. denied, 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); committee power to obtain immunity orders, United States v. Romano, 583 F.2d 1, 4 (1 Cir. 1978); committee approval of acquisitions by Park Service, United States v. 0.37 Acres of Land, More or Less, 414 F.Supp. 470, 472 (D.Mont. 1976), is likewise limited by fundamental constitutional constraints.

have 20 years. P.S. we have now decided that 18 is enough. Your time is up and it is all gone."

Tr. at 24-25.

This comment is equally applicable to the May 21, 1981 resolution with regard to the Bob Marshall, Scapegoat and Great Bear Wilderness Areas. As noted above, all parties recognize that the Wilderness Act could be modified by appropriate legislation. But in this case, by a vote of 23 to 18, without hearings or testimony, one congressional committee would have effectively reversed a decision previously reached by the entire Congress and approved by the President. That would present a more serious violation of the separation of powers doctrine than did the one House resolution condemned in Chadha.43

B. DURATION ESTABLISHED BY SECRETARY

[14] By interpreting section 204(e) to authorize the Secretary to establish the scope and duration of an emergency withdrawal, the constitutional infirmities discussed above are obviated. Since the Secretary's exercise of discretion must be made pursuant to the goals and procedural requirements of the FLPMA, the terms of any emergency withdrawal will be subject to judicial review. The "constraints of articulated reasons and stare decisis," 634 F.2d at 431, in the interpretation and application of section 204(e), as well as "provision for review of... legal or factual conclusions," id., would be guaranteed.

Since the scope and duration of all emergency withdrawals must be determined by the Secretary, "legislative interference" could not "be exercised in any given case without a change in the general standards the legislation decreed." Id. at 432. The "case-bycase... law enforcement," id. at 431, would be performed by the Executive branch, as it should be.

Finally, this interpretation of section 204(e) is properly described as allowing the "exercise of a residual legislative power..." Id. at 429. Since an emergency withdrawal is implemented and can be revoked by the Secretary, acting pursuant to the guidelines of the FLPMA, the Committee's action does not amount to a statutory amendment.

Obviously, the authority vested in the Committee under even this limited interpretation is somewhat unique. It still requires the Executive branch to take affirmative action at the request of a single congressional committee. But since the Secretary is allowed to exercise his discretion in implementing that request, the Committee's authority is sufficiently similar to traditional committee

43 Plaintiffs and the Secretary argue that if section 204(e) is interpreted to authorize the Committee to determine the duration of a withdrawal, it is also unconstitutional as a violation of the presentment, appointments, disabilities and incompatibility clauses of the Constitution. Although these arguments have merit, it is unnecessary to discuss them because of the interpretation given to the statute.

Intervening defendants and amici argue that even if section 204(e) is interpreted to authorize the Committee to determine the duration of a withdrawal, it is constitutional as a legitimate "report and wait" provision. Report and wait provisions are enacted by both Houses, not a single committee. Furthermore, they preserve the status quo by deferring administrative action. The Committee's resolution, however, mandated administrative action, changing both the status of the lands and the Secretary's authority over them.

529 F. Supp. 982 (1981)

PACIFIC LEGAL FOUNDATION, A NONPROFIT CALIFORNIA
CORPORATION, ET AL., PLAINTIFFS,

V.

JAMES G. WATT, IN HIS OFFICIAL Capacity as SECRETARY OF THE UNITED STATES DEPARTMENT OF THE INTERIOR, DEFENDANT,

AND

THE BOB MARSHALL ALLIANCE, The Wilderness Society and the SIERRA CLUB, AS INTERVENING DEFENDANTS

MOUNTAIN STATES LEGAL FOUNDATION, A NONprofit Colorado CORPORATION, PLAINTIFF,

V.

JAMES G. WATT, SECRETARY OF THE UNITED States DeparTMENT OF INTERIOR, JOHN R. BLOCK, SECRETARY OF THE UNITED STATES DEPARTMENT OF Agriculture, DEFENDANTS,

AND

THE BOB MARSHALL ALLIANCE, THE WILDERNESS SOCIETY, AND THE SIERRA CLUB, AS INTERVENING DEFENDANTS

Nos. CV-81-141-BLG, CV-81-168-BLG

UNITED STATES DISTRICT COURT, D. MONTANA, BILLINGS DIVISION December 16, 1981

As Amended January 19, 1982

Organization with members who were holders of noncompetitive ease applications to land and wilderness areas and nonmemberhip organization brought action challenging order of the Secretary f Interior purporting to withdraw wilderness areas from mineral xploration and leasing until certain date. The District Court, ameson, J., held that: (1) section of Federal Land Policy and Mangement Act of 1976 did not give the House Committee on Interior nd Insular Affairs the power to direct Secretary of Interior to ithdraw wilderness areas from mineral exploration and leasing ntil January 1, 1984 and Committee's resolution to that effect imermissibly conflicted with section of Wilderness Act of 1964 which ermitted mineral exploration and leasing activities until that ate; (2) scope and duration of withdrawal order were within sound iscretion of secretary to be exercised in accordance with rules and rocedural requirements of Management Act, subject to judicial eview; and (3) Secretary had power to revoke, after reasonable me, withdrawal order made at request of either House Committee r Senate Committee on energy and natural resources.

Order entered.

Nothing in the Federal Land Policy and Management Act establishes a right to notice and an opportunity to comment before section of Act is invoked to require a withdrawal of wilderness areas from mineral exploration and leasing. Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

There is a right to have a lease application properly processed by appropriate agency.

Injury to party's right to have lease application properly processed by appropriate agency would establish standing for aggrieved individual.

In order to establish standing, person has been "adversely affected or aggrieved by agency action within the meaning of a relevant statute," when he has been "injured in fact," and his interests are within the "zone of interests" which is protected or regulated by relevant statute. 5 U.S.C.A. § 702.

5. Mines and Minerals 5.1(9)

Legal foundation with members who were holders of noncompetitive lease applications to land in wilderness areas had standing to challenge public land order issued by Secretary of Interior purporting to [983] withdraw wilderness areas from mineral exploration and leasing as suspension of lease applications was injury in fact and right to have applications properly considered by Secretary ws within zone of interest protected by Mineral Leasing Act and as foundation sought only to have their applications fairly considered under applicable statutory criteria. Mineral Lands Leasing Act, §§ 17, 17(a-c), 30 U.S.C.A. §§ 226, 226(a–c).

In light of fact that legal foundations with members who were holders of noncompetitive lease applications to land in wilderness areas had been injured by operation of statute they challenged and had motive required for sharp presentation of isssues, lease applicants whose applications were suspended were not asserting a "generalized grievance" shared in substantially equal measure by all or large class of citizens so that prudential requirements of standing had not been satisfied. Mineral Lands Leasing Act, § 17, 30 U.S.C.A. § 226; Mining and Minerals Policy Act of 1970, § 2, 30 U.S.C.A. § 21a; Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

7. Mines and Minerals ~ 5.1(9)

Nonmembership organization did not have standing to represent its supporters nor did it have organizational standing on basis of its own institutional injuries to challenge land order issued by Secretary of Interior purporting to withdraw wilderness areas from min

eral exploration and leasing. Mineral Lands Leasing Act, § 17, 30 U.S.C.A. §226; Mining and Minerals Policy Act of 1970, § 2, 30 U.S.C.A. § 21a; Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

Neither Secretary of Interior's acquiescence in resolution of House Committee on Interior and Insular Affairs directing Secretary to withdraw wilderness areas from mineral exploration and leasing nor his position on constitutional issue destroyed adverse nature of case involving challenge to that order. Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e). 9. Administrative Law and Procedure 229

Unless exhaustion of administrative remedies is statutorily mandated, exhaustion requirement is not jurisdictional and is matter within sound discretion of court.

Where exhaustion of administrative remedies was not statutorily mandated in action involving challenge to land order of Secretary of Interior whereunder Secretary withdrew wilderness areas from mineral exploration and leasing after being directed to do so by House Committee on Interior and Insular Affairs, and where administrative process which must allegedly be completed had already been terminated by agencies responsible for its completion, exhaustion of administrative remedies was not required and case was ripe for review. Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

There is no judicial definition of "withdrawal" which would prevent House or Senate Committees or the Secretary of Interior from withholding disposition of wilderness areas for mineral exploration and leasing. Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

Although nothing in applicable section of Federal Land Policy and Management Act of 1976 gave Secretary of Interior express authority to revoke committee-initiated emergency withdrawal of wilderness areas from mineral exploration and leasing, Secretary does have implied power under that section to revoke, after a reasonable time, emergency withdrawal initiated by either congressional committee. Federal Land Policy and Management Act of 1976, § 204(e), 43 U.S.C.A. § 1714(e).

If applicable section of Federal Land Policy and Management Act of 1976 were [984] interpreted to give House Committee on Interior and Insular Affairs the power to direct the Secretary of the interior to withdraw wilderness areas from mineral exploration and leasing until certain date, statute would be unconstitutional.