chairman participated in any form of preparation or publication of the articles which were basis of the action.

A news reporter may be required to disclose confidential sources in face of a civil litgant's showing that he has a non-frivolous claim, he has no reasonable alternative sources for the information he seeks, and information is sufficiently important to presentation of his case to warrant its disclosure.

4. Federal Civil Procedure 1272

When question of privileged protection of news reporter's confi dential sources arises in libel action and successful assertion of the privilege will effectively seal defendant from liability, equities weigh somewhat more heavily in favor of disclosure; nevertheless assertion of a nonfrivolous libel claim does not automatically war rant compelled disclosure of a reporter's sources over a claim of privilege.

In libel action brought against newspaper, plaintiff's motion seeking an order requiring news reporters to reveal individuals who were sources for the stories in question [12] would be denied without prejudice to its renewal at an appropriate time in the future where end point of discovery had not yet been reached and many potentially fertile areas of discovery remained unexplored and where it did not appear that plaintiffs had yet exhausted alter native sources for such information. U.S.C.A.Const.Amend. 1.

Speech or debate clause confers on legislators immunity from ju dicial process requiring them to answer questions relating to per formance of their legislative duties, and such privilege applies with equal force to activities of congressinal staff; while clause's protec tion is limited by its terms to speeches and debates, protection i construed broadly to reach any activity that can be characterized with the regular course of the legislative process. U.S.C.A Const. Art. 1, § 6, cl. 1.

Motion by staff members of subcommittee of House of Repre sentatives to quash subpoena served on them by plaintiffs in libe action brought against newspaper would be denied to the exten that plaintiffs sought testimony relating to dissemination of doca ments and other information to newspaper reporters, in that t such extent subpoenas did not impinge upon the legislative priv lege; inquiry into what motivated staff members to investigate mat ters involved in the case was not a permissible subject of examina tion, however, but inquiry into apparent motivation of reporters in bringing the matter to the staff's attention would not be similariy precluded. U.S.C.A.Const.Art. 1, § 6, cl. 1.

In these consolidated actions1 the plaintiffs challenge Public Land Order No. 5952 issued by the Secretary of the Interior on June 1 1981, purporting to withdraw from disposition under "all laws pertaining to mineral leasing. . ." the Bob Marshall, [985] Scapegoat and Great Bear Wilderness Areas. The Secretary's action was taken pursuant to a resolution adopted by the House Committee on Interior and Insular Affairs, acting under the authority of section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. (FLPMA), finding that an emergency situation existed in these wilderness areas and directing the Secretary to withdraw the areas from the operation of mineral leasing laws until January 1, 1984. Specifically the plaintiffs seek a judgment declaring that (1) section 204(e) is unconstitutional in that it violates either the separation of powers doctrine or the bicameralism principle and presentment clause; and (2) the directive of the House Committee is invalid because it (a) is an unlawful usurpation of the discretionary authority delegated to the Secretary by section 204(e); (b) impermissibly conflicts with section 4(d)(3) of the Wilderness Act; (c) deprives lease applicants of due process; and (d) is arbitrary, capricious, and an abuse of discretion. On June 15, 1981, plaintiff Pacific Legal Foundation and defendant James G. Watt as Secretary of the Interior, stipulated that it was "in the highest national interest to resolve the legal issue ... as soon as possible," and "that there are no genuine issues of material fact in dispute and that the pivotal issues are issues of law subject to resolution on summary judgment . . ." Pursuant to a request in the stipulation, the court invited both Houses of Congress to participate in the proceeding as amici curiae.

On August 17, 1981, an order was entered granting the motions of The Bob Marshall Alliance, The Wilderness Society, and The Sierra Club to intervene as defendants. Pursuant to stipulation of counsel for all parties, it was ordered that all legal and factual issues relating to the allegations that the action of the House Committee was arbitrary and capricious will be held in abeyance pending resolution of the other consititutional, statutory authority, and statutory interpretation issues raised by plaintiffs. The parties agreed upon a briefing schedule.

Motions for summary judgment were filed by the plaintiffs and a cross-motion by the intervening defendants The Bob Marshall Alliance and the Wilderness Society. The federal defendants filed a cross-motion to dismiss and/or for summary judgment. Extensive briefs were filed by all of the parties; and memoranda as amici curiae were filed by the United States Senate, the Honorable Max Baucus, United States Senator, and the Honorable Morris K. Udall, Chairman, and the Honorable Manuel Lujan, Jr. Ranking Republican Member, on behalf of the Committee on Interior and Insular

The action by Pacific Legal Foundation against James G. Watt, as Secretary of the Interior, was filed in this court on June 4, 1981. In an amended complaint filed August 17, 1981, six "members and supporters" of Pacific Legal Foundation who hold applications for oil and gas leases in the three wilderness areas were added as parties plaintiff.

The action by Mountain States Legal Foundation was filed in the United States District Court for the District of Colorado on June 3, 1981, and transferred to this court on July 14, 1981. John R. Brock, as Secretary of Agriculture, was also named as a defendant in this action.

witness submitted to Securities and Exchange Commission would be denied where primary basis of motion was that information pertained to an ongoing nonpublic investigation by SEC, and letter sent from SEC stated that investigation had been terminated.

In libel action, congressional staff members were entitled to a protective order limiting plaintiffs' inquiring during deposition of noncongressional witness to the extent such deposition would inquire about legislative acts of a legislator or his aide. U.S.C.A. Const. Art. 1, § 6, cl. 1.

John J. Walsh and Jerry Birenz, New York City, and Joseph A. Artabane, Washington, D.C., for plaintiffs.

David E. Kendall and Robert C. Post, Washington, D.C., for defendant, Washington Post.

Stanley M. Brand, Gen. Counsel, and Steven R. Ross, Asst. Counsel, to the Clerk, U.S. House of Representatives, Washington, D.C., for Congressional Deponents.

Joel M. Wolosky, New York City, for defendant Comnas.
David Machanic, Washington, D.C., for defendant Piro.

GASCH, District Judge.

MEMORANDUM

These consolidated cases are before the Court on the following motions: (1) the Post defendants' motion for a jury trial; (2) defendant Katharine Graham's motion for summary judgment; (3) the Post defendants' motion to compel answers to interrogatories; (4) plaintiffs' motion to compel the Post reporters to reveal their sources; (5) the Congressional deponents' motion to quash a subpoe na; (6) the motion of George Comnas to quash a subpoena; and (7) the Congressional deponents' motion for a protective order pertaining to the deposition of Comnas.1

I. BACKGROUND

The complaints allege that on or about November 30 and Decem ber 1, 1979, The Washington Post published two articles about certain business transactions involving plaintiff William Tavoulareas, president of Mobil Oil Corp., and his son, plaintiff Peter Tavoulareas. The articles were prepared by defendants Patrick Tyler, a Post reporter, and Sandy Golden, a special correspondent for the Post Simply stated, the complaint alleges that those articles suggested that plaintiff William Tavoulareas used his position in Mobil Oil to set up his son, plaintiff Peter, as a partner in a London based shipping firm, Atlas Maritime Company (Atlas), and further to assure the success of that venture. The complaint further alleges that the suggestion is false and was published by defendants either knowing it was false or in reckless disregard of its truth or falsity.

1 The Congressional deponents' motion to intervene for purposes of making this motion with respect to the Comnas deposition was granted from the bench at the hearing on Friday, July 24.

C. RESOLUTION ADOPTED BY HOUSE COMMITTEE

6

On May 21, 1981, the House Committee on Interior and Insular Affairs, following a hearing, adopted, by a vote of 23 to 18, a resolution finding that an "emergency" situation existed in the Bob Marshall, Scapegoat and Great Bear Wilderness Areas and that "extraordinary measures" must be taken "to preserve values that otherwise would be lost." The resolution authorized and directed the Committee chariman to direct the Secretary to withdraw immediately these lands until January 1, 1984 "from all forms of dispostion under all laws pertaining to mineral leasing and all amendments therto, subject to valid existing rights."

The Committee chairman, Representative Udall, by letter dated May 21, 1981, sent a copy of the resolution to Secretary Watt. His letter concluded:

As required by the Act, you are to make this withdrawal immediately and you are to file notice of such emergency withdrawal with this Committee and its Senate counterpart. Additionally you are required to furnish said Committees the information specified in section 204(c)(2) within three months.7

On June 1, 1981, the Secretary issued Public Land Order No. 5952, withdrawing "approximately 1.5 million acres of National forest lands in the Bob Marshall, Scapegoat, and Great Bear Wilderness Areas from mineral leasing in response to an emergency withdrawal resolution adopted by the House Interior and Insular Affairs Committee on May 21, 1981."

On June 1, 1981, the Secretary sent Representative Udall and the chairman of the Senate Committee a copy of Public Land Order No. 5952. In the letter of transmittal to Representative Udall, the Secretary [987] questioned (1) the validity of the basis "for declaring an emergency to exist"; (2) the "constitutionality of the action" he had been "directed . . . to take"; and (3) the statutory authority to withdraw the lands. Nevertheless, "in the interest of maintaining harmony between Congress and the Executive", he issued the order "in keeping with the directive of the House Interior and Insular Affairs Committee."

II. CONTENTIONS OF PARTIES

The diverse contentions set forth in the briefs of the parties and amici curiae may be summarized as follows:

The plaintiffs contend that (1) section 204(e) is unconstitutional because its application through unilateral action by the House Committee (a) violates the separation of powers doctrine, (b) delegates executive power to the committee, (c) violates the requirement of bicameralism, (d) deprives the President of his veto power, and (e) deprives plaintiffs of due process; (2) the Committee exceeded its statutory authority under section 204(e) by withdrawing the

*The hearing consisted of a debate among the members of the Committee with respect to the propriety of the ressolution. No testimony or documentary evidence was presented to the Committee.

7

Section 204(c)(2) specifies 12 items which the Secretary must furnish to the Committees "within three months after filing the notice under subsection (e) . . .". 43 U.S.C. § 1714(c)2)

8

Specifically he considered the constitutionality of the action he was required to take "highly

questionable, the directive being in the form of a committee resolution, passed by a simple majority of the members of but a single committee of only one House of the Congress..

areas when there was no emergency situation; and (3) the emergency withdrawal power under section 204(e) cannot be used to frustrate section 4(d)(3) of the Wilderness Act.9

The federal defendants contend that (1) the plaintiffs lack standing to maintain the actions because (a) they have not demonstrated actual or threatened injury for purposes of Article III of the Constitution, and (b) the prudential requirements of standing have not been satisfied; (2) plaintiffs have not been deprived of due process; but (3) if plaintiffs have standing to sue, the Committee had no statutory authority to direct the Secretary to withdraw the wilderness areas and the Secretary had no authority to withdraw the lands; and (4) that portion of section 204(e) which authorized the House Committee's emergency withdrawal resolution is unconstitutional for essentially the same reasons urged by the plaintiffs.

The intervening defendants The Bob Marshall Alliance and the Wilderness Society contend that the plaintiffs lack standing for the reasons asserted by the federal defendants and in addition Pacific Legal Foundation lacks standing because none of its members are directly affected by the Government action. All of the intervening defendants contend that (1) the constitutionality of the withdrawal order need not be reached because the applications for leases will be denied in any event; (2) under Article IV of the Constitution, Congress holds the public lands as properties; (3) Public Land Order No. 5952 is a nondiscretionary act which is not reviewable; and (4) section 204(e) is a valid delegation of congressional authority, and (5) does not violate any constitutional doctrines.

The amicus curiae brief filed on behalf of the House Committee contends that (1) plaintiffs lack standing; (2) there is no case or controversy between the executive and legislature; (3) the Secretary has statutory authority under section 204(e) to make the withdrawal; and (4) section 204(e) does not violate any constitutional provision.

The Senate's amicus curiae brief contends that (1) section 204(e) evolved from a tradition of withdrawals in aid of the legislative process of "report and wait" agreements; (2) the administrative process must be completed before plaintiffs can seek judicial review; (3) section 204(e) is constitutional, and (4) is a restrained exercise of Congress' authority under the Territory and Property clause.

The amicus brief filed by Senator Baucus contends that (1) plaintiffs must show the unconstitutionality of § 204(e) beyond a reasonable doubt; (2) section 204(e) is a [988] legitimate means of exercising congressional power, (3) is a justifiable means for exercising Congress' power over the public lands and its power to investigate, and (4) does not violate the principles of separation of powers, bicameralism or presentment; and (5) plaintiffs have not been denied due process since no rights had accrued upon mere applications for leases.

Section 4(d)(3) of the National Wilderness Preservation Act provides that wilderness areas are subject to the provisions of the mining and mineral leasing laws, the same as most federallyowned lands, until midmight December 31, 1983, subject to conditions therein specified. 16 U.S.C. § 1133(d)(3) (1976).