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905. "A communication as to ... the ultimate motive of the litigation is equally protected with other (communications) so far as any policy of privilege is concerned.” Baird v. Koerner, 279 F.2d 623, 630 (9th Cir. 1960); 8 Wigmore, Evidence § 2313 (McNaughton rev. 1961). If after Mr. Singman discloses the substance of his conversation with Mr. Duffy, as ordered above, the additional disclosure of the client's identity will reveal a motive protected by the attorneyclient privilege, then the identity of the client may not be discovered.

The deponent cites the Harvey case for the proposition that when a client contacts a lawyer, who in turn contacts a third party concerning the plaintiffs, the identity of the client is privileged in order to preclude revelation of the client's motive for contacting his lawyer. It is true that when a client consults an attorney for the general purpose of ascertaining legal rights or obligations, the attorney-client privilege "is not lost merely because relevant nonlegal considerations are expressly stated in a communication which also includes legal advice.United States v. United Shoe Machinery Corp., 89 F. Supp. at 359. But as in Harvey, the deponent has failed to make the threshold showing that the unidentified client communicated with his attorney in order to obtain legal advice. Absent a showing that deponent's response to plaintiffs' question would disclose a motive relating to the conduct of his client's legal affairs, the court must compel the answer.

Even if deponent could make such a showing, the Harvey case is inapt. Harvey established that the attorney-client privilege is not lost if the lawyer employs a non-lawyer, such as an accountant or investigator, incident to the lawyer's employment to render a legal opinion, perform a legal service or afford representation in legal proceedings. NLRB v. Harvey, 349 F.2d at 907. The "Duffy memorandum" does not on its face indicate that Mr. Singman hired Mr. Duffy, nor does it suggest that Mr. Singman created an agency relationship with Mr. Duffy by which Mr. Duffy was to assist Mr. Singman's provision of legal services to his client. The principle esablished in Harvey, therefore, does not apply to this case.

III. FEE ARRANGEMENTS

The attorney-client privilege, which exists to encourage full, free disclosure by clients to their

attorneys, does not support protection of the amount of the fee paid for the services rendered. United States v. Sherman, 627 F.2d 189, 192 (9th Cir. 1980). Since knowledge of the total fees Mr. Singman collected from NICOA is relevant to the subject matter involved in the pending claim, See Fed. R. Civ. P. 26(b)(1), there are no grounds for shielding this item of nformation from disclosure. Moreover, since the question regardng Mr. Ratliff's contributions toward the payment of fees due Mr. Singman from third parties concerns a time period prior to Mr. Singman's representation of Mr. Ratliff, compulsion of the answer o that question does not disrupt an attorney-client relationship, ind does not violate the privilege. See In re Grand Jury Investigation (Subpoena to Nino v. Tinari), 631 F.2d 17, 19 (3rd Cir. 1980). The court grants plaintiffs' motion to compel answers to both questions regarding fee arrangements.

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 re voked 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,

u.

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,

U.

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 ase 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.

VIII. REMEDY

In view of the policy and procedures recently adopted by the Sec retary of the Interior, as set forth in his letter of November 19 1981, to the chairmen of the two congressional committees, and the resolution adopted on November 20, 1981, by the House Committee on Interior and Insular Affairs, it is deemed advisable to retain ju risdiction of these cases until July 1, 1982.44 The Secretary shoul be given an opportunity to consider and process, within his discre tion, the plaintiffs' lease applications under the proper interpreta tion of section 204(e),45 and pursuant to the current policies an procedures of the Department. See Arnold v. Morton, 529 F.2d a 1105.

Accordingly, IT IS ORDERED:

(1) The Secretary of the Interior is directed to revoke Publi Land Order No. 5952, issued on June 1, 1981 at the direction (1005 of the House Committee on Interior and Insular Affairs, which withdrew the Bob Marshall, Scapegoat, and Great Bear Wildernes Areas from mineral leasing until January 1, 1984.

(2) The Secretary of the Interior, acting within his discretion shall determine the scope and duration of the withdrawal of th three wilderness areas.

(3) It is assumed that in the further handling of applications fa noncompetitive oil and gas leases in these wilderness areas wi follow the procedures set forth in his letters of November 19, 195 to the chairmen of the House Committee on Interior and Insula Affairs and the Senate Committee on Energy and Natural Re sources, for the handling of oil and gas leases on lands within th nation's congressionally designated wilderness areas.

(4) This court will retain jurisdiction of these consolidated case until July 1, 1982.

44 It seems probable that by July 1, 1982, the Supreme Court will have decided Chadha Congress may have acted on the Baucus bill. Moreover, as noted above, it seems probable that the Secretary of the Interior will comply with the request of the House Committee te frain from issuing mineral leases in congressionally designated wilderness areas until June 1982

45 As set forth above, the Secretary has taken the position that while he questioned the sun tory and constitutional power of the House Committee to direct the issuance of Public La Order No. 5952, he was required to withdraw the lands pursuant to the Committee's direct without exercising any discretion as to the duration of the withdrawal. This was based on incorrect interpretation of section 204(e).

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). 8. Federal Courts Om 13

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 Om 229

Unless exhaustion of administrative remedies is statutorily mandated, exhaustion requirement is not jurisdictional and is matter within sound discretion of court. 10. Mines and Minerals On 5.1(9)

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). 11. Mines and Minerals Om 5.1(3)

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, 8 204(e), 43 U.S.C.A. $ 1714(e). 12. Mines and Minerals On 5.1(3)

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). 13. Mines and Minerals Om 5.1(3)

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.

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