III. RECENT DEVELOPMENTS

Significant developments subsequent to the filing of the briefs, but discussed in oral argument, include the following:

(1) On September 10, 1981, Secretary Watt filed with the House Committee on Interior and Insular Affairs and the Senate Committee on Energy and Natural Resources the report required by section 204(e) and (c)(2) of the FLPMA and the May 21 resolution of the House Committee. This report was considered by the House Subcommittee on Public Lands and National Parks at a meeting on November 20, 1981.

(2) On October 26, 1981, Senator Baucus introduced S. 1774 to amend section 4(d)(3) of the Wilderness Act (which as noted supra, n. 5, provides that wilderness areas are subject to the provisions of mining and mineral leasing laws until midnight December 31, 1983), by adding a new subparagraph:

effective May 21, 1981, the Bob Marshall, Scapegoat, and Great Bear Wilderness areas in Montona are withdrawn from all forms of appropriation under the mining laws and from disposition under all forms of appropriation under the mining laws and from disposition under all laws pertaining to mineral leasing and all amendments thereto. (3) On November 19, 1981, Secretary Watt addressed letters to the chairmen of the Senate Committee on Energy and Natural Resources and the House Committee on Interior and Insular Affairs regarding changes he had that day approved "which affect the procedures for handling oil and gas lease applications on lands within the nation's 158 Congressionally-designated wilderness areas.' Since the policy changes approved by the Secretary have a significant bearing on the resolution of this controversy, the Secretary's letter is quoted in a footnote.1o

1 The Secretary's letter reads: You and I share a mutual desire to encourage the wisest possible management of America's 80 million acres of National Wilderness Areas, which, together with our national public lands and wildlife refuges, comprise a priceless heritage of which every American can be enormously proud. There are no other places like them on earth, and I am dedicated to their protection.

In order that the public and their elected representatives will have full opportunity to participate in the process that takes place when lease applications affecting wilderness areas are considered, I am immediately instructing appropriate agencies within the Department of the Interior to conform their procedures and actions to the following policies:

(1) No lease application affecting lands within a Congressionally-designated unit of the national wilderness system may be processed unless it has first been the subject of an environmental assessment or, where appropriate, an environmental impact statement, prepared by the responsible surface management agency. Further, the environmental assessment or EIS process must have allowed for at least one public hearing, and adequate opportunity for public notification and participation.

(2) Henceforward, the Department of the Interior will provide written notice to Congress at least 30 legislative days, or no more than 60 calendar days, in advance of any action to grant lease or leases in a Congressionally-designated wilderness unit. This notice will be provided to the Chairmen and Ranking Minority Members of the House Committee on Interior and Insular Affairs and the Senate Committee on Energy and Natural Resources, and to the Senators and Representatives from the state in which the affected wilderness unit is located.

As you know, Section 4(d)(3) of the National Wilderness Preservation Act, enacted in 1964, specifies that wilderness areas are subject to the provisions of the mining and mineral leasing laws, the same as most other federally-owned lands, until January 1, 1984. I know you are also aware that numerous lease applications affecting wilderness lands are currently pending, and that I am obligated to consider these applications in accordance with the provisions of the Widerness Act and the mining and mineral leasing laws. I am aware of the controversy that has

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[989] (4) On November 20, 1981, the House Committee on Interior and Insular Affairs by a vote of 40 to 1 adopted a resolution with respect to mineral leases in wilderness areas. After noting the letter from Secretary Watt setting forth changes in departmental policies, which were commended, but expressing the continued concern of the Committee with regard to mineral leasing in wilderness areas, the Resolution concludes:

NOW, THEREFORE, BE IT RESOLVED that without waiving its rights under section 204 of the Federal Land Policy and Management Act of 1976 the Committee on Interior and Insular Affairs calls upon the President and the Secretaries of the Interior and Agriculture to refrain from issuing mineral leases under the mineral leasing laws of the United States in congressionally designated wilderness areas until June, 1, 1982, to provide the Committee opportunity to study and evaluate the full implication of the recent changes in policy affecting mineral leasing in wilderness areas and to consider any legislation which may be appropriate.

IV. PROCEDURAL QUESTIONS

A. JURISDICTION

Plaintiffs have properly invoked jurisdiction under 28 U.S.C. §1331 (1976) ("federal question") and 5 U.S.C. §§ 701-706 (1976) ("The Administrative Procedure Act"). 28 U.S.C. §2201 (1976) ("The Declaratory Judgment Act") provides a remedy, not a grant of jurisdiction. 11

B. JUSTICIABILITY

1. Standing

Plaintiffs may not invoke the jurisdiction of a federal court unless they show the existence of an actual "case or controversy". Article III, Section 2, United States Constitution. This requirement is satisfied when a party demonstrates "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury. ." Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978); Chadha v. Immigration and Naturalization Service, 634 F.2d 408, 415 (9 Cir. 1980), cert. granted,

U.S.

102 S.Ct. 87, 70 L.Ed.2d 80 (1981). The Supreme Court has also stated that "parties with sufficient concrete interests at stake have been held to have standing to raise constitutional questions of sepa

been generated in several areas where lease applications are pending, and it is my expectation that the new procedures I have outlined in this letter will enable the public and members of Congress to participate to a greater degree in the challenging and often difficult process of for mulating decisions which conform to these laws, while still affording maximum protection to our wilderness areas.

For the record, it should be noted that there have been no leases granted for exploration or drilling in the wilderness areas, nor have Environmental Impact Statements been presented to the Secretary of the Interior for decision. Much misinformation has been sent out concerning the Bob Marshall Wilderness Area. There never was an EIS presented to the Secretary of the Interior on the BMWA and there has been no call for a decision concerning leasing in that area since taking office.

11 Pacific Legal Foundation also invokes jurisdiction under 28 U.S.C. §1346(a)(2) (1976). This section, however, provides jurisdiction only for suits for money damages, not for the declaratory and injunctive relief sought here.

ration of powers with respect to an agency designated to adjudicate their rights." Buckley v. Valeo, 424 U.S. 1, 12 n. 10, 96 S.Ct. 612, 631 n. 10, 46 L.Ed.2d 659 (1976) (per curiam). The "case or controversy" requirement is also satisfied if a plaintiff has "alleged such a personal stake in the outcome of the controversy' to warrant his invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (emphasis in original).12 Defendants and amici argue that plaintiffs lack [990] standing because (1) they cannot demonstrate actual or imminent concrete injury to themselves or the individuals they represent; and (2) they are asserting a nonjusticiable generalized grievance.

a. Injury to Individuals

[1-3] Eight members of the Mountain States Legal Foundation (MSLF) and the six individual plaintiffs who are also "supporters' of The Pacific Legal Foundation (PLF) hold noncompetitive lease applications to lands within the three wilderness areas. Plaintiffs allege that these individuals were injured by Public Land Order No. 5952 because it (1) deprived them of their due process right of notice and opportunity to be heard with regard to the order, (2) deprived them of their due process right to have their applications processed and decided upon by the Secretary of the Interior, and (3) diminished the market value of their lease applications. Nothing in the FLPMA establishes a right to notice and an opportunity to comment before section 204(e) is invoked to require a withdrawal. See 43 U.S.C. § 1714(h) (1976). Plaintiffs' claim to this right is therefore rejected. Case law does establish, however, the right to have a lease application properly processed by the appropriate agency. Injury to that right would establish standing for the aggrieved individual.

[4] A person has been "adversely affected or aggrieved by agency action within the meaning of a relevant statute", 5 U.S.C. § 702 (1976), when (1) he has been "injured in fact", and (2) his interests are within the "zone of interests" which is protected or regulated by the relevant statute. See United States v. SCRAP, 412 U.S. 669, 686, 93 S.Ct. 2405, 2415, 37 L.Ed.2d 254 (1973); Sierra Club v. Morton, 405, U.S. 727, 733, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Plaintiffs' claim of injury is based on the fact that the Bureau of Land Management (BLM) has notified lease applicants that, as a result of Public Land Order No. 5952, the land within the wilderness areas has been "suspended". 13

1 The standing determination in suits brought under the Administrative Procedure Act is made in accordance with section 10 of the Act, which encompasses the Warth v. Seldin requirement. Section 10 provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. §702 (1976).

18 In a letter dated October 5, 1981, the Bureau of Land Management notified Ida Lee Anderson, one of the members of MSLF holding a lease application, that lands within the Great Bear Wilderness Area were suspended because they were withdrawn from leasing by Public Land Order No. 5952 effective June 1, 1981 and that the withdrawal will remain in effect until January 1, 1984.

43 C.F.R. § 2091.1 (1980) provides that applications which are accepted for filing must be rejected and cannot be held pending possible future availability of the land or inter

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absolutely protected from any inuiry by the speech or debate clause of the United States Constitution, Art. I, § 6, cl. 1.

[6] It is beyond dispute that the speech or debate clause confers on legislators immunity from judicial process requiring them to answer questions relating to the performance of their legislative duties. The privilege applies with equal force to the activities of congressional staff. Gravel v. United States, 408 U.S. 606, 616, 92 S.Ct. 2614, 2622, 33 L.Ed.2d 583 (1972). Once it is established that conduct falls within the parameters of that privilege, the protec tion is absolute and further inquiry is at an end. Eastland v United States Servicemen's Fund, 421 U.S. 491, 503, 95 S.Ct. 1813. 1821, 44 L.Ed.2d 324 (1975). While the clause's protection is limited by its terms to speeches and debates, the protection is construed broadly to reach any activities that can be characterized as within the "regular course of the legislative process." United States v. Brewster, 408 U.S. 501, 525, 92 S.Ct. 2531, 2544, 33 L.Ed.2d 507 (1972).

[7] Among those activities that have been held to be within the protected legislative sphere are congressional efforts at gathering information for use in the legislative process. Eastland v. United States Servicemen's Fund, 421 U.S. at 504, 95 S.Ct. at 1821; Doe r. McMillan, 412 U.S. 306, 313, 93 S.Ct. 2018, 2025, 36 L.Ed.2d 912 (1973; McSurely v. McClellan, 521 F.2d 1024, 1036 (D.C.Cir.1975 aff'd en banc by an equally divided court, 553 F.2d 1277 (1976), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978). But while efforts directed at gathering information are, within limits. constitutionally immune from inquiry, a consistent line of authori ty holds that the act of disseminating information outside of Con gress is beyond the legitimate legislative sphere and therefore outside of the protections afforded by the speech or debate clause. See eg., Doe v. McMillan, 412 U.S. at 317, 93 S.Ct. at 2027; Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627; McSurely v. Me Clellan, 521 F.2d at 1039. It is clear, therefore, to the extent that plaintiffs seek testimony from the Congressional deponents relating to the dissemination of the so-called Dingell documents, and for that matter any other information, to the Post reporters, the subpoenas do not impinge upon the legislative privilege and the motion will be denied. 10

Having determined what matters do not fall within the prev lege, it is necessary to turn attention to those matters that will fall within the privilege. As previously noted, investigations by congres sional aides for the purpose of gathering information on a subject which appears on its face to be of legitimate legislative interest are protected by the privilege. Although plaintiffs have repeatly sug gested that the subject investigation was not actually aimed at uncovering information of valid legislative interest but rather was undertaken, at the urging of the Post defendants, as a means of lend

10 The Court rejects the argument, urged by these deponents, that the plaintiffs have failed t make a sufficient showing that these individuals participated in or have knowledge of the dis semination of this information to the Post reporters. The undisputed fact that these documents were in the possession of the defendants is a sufficient showing that these individuals might s least have knowledge of who was responsible for the dissemination. There are other indication in the record to support this inference.

the BLM, pursuant to section 2(b) of the Mineral Leasing Act. 30 U.S.C. § 201(b) (1970).15 When the Secretary issued an order rejecting all pending applications, the plaintiff filed suit. Citing Duesing v. Udall, 350 F.2d 748 (D.C. Cir 1965), cert. denied, 383 U.S. 912, 86 St.Ct. 888, 15 L.Ed.2d 667 (1966), for the proposition that the filing of an application does not give any right to a lease or generate a legal interest which reduces or restricts the discretion vested in the Secretary, the Secretary argued "that the appellant has not alleged specific injury in fact, nor has he demonstrated that possible injury was arguably within any protected zone of interest. . . ." Id. at 238. The court did not agree:

Appellee [the United States] has confused lack of an established property interest with lack of standing to question allegedly unjustifiable obstacles to the perfection of such an interest. It is true that [992] the applicant acquired no vested interest by the mere filing of his application. But he did have the right to avail himself of the application route in an effort to perfect an interest to the extent that this was not precluded by law or by some valid exercise of the agency's discretion. Were it otherwise an applicant could be unlawfully deprived of the right to pursue his application to the point of consummated interest without means for effective complaint. (Footnote omitted).

[5] As in Krueger, the "suspension" of the lease applications in this case is an injury in fact and the right to have the applications properly considered by the Secretary is within the zone of interests protected by the Mineral Leasing Act of 1920, 30 U.S.C. § 226 (1976), and the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a (1976).16

15 At the time Krueger was decided, 30 U.S.C. § 201(b) (1970) provided:

Where prospecting or exploratory work is necessary to determine the existence or workability to determine the existence or workability of coal deposits in any unclaimed, undeveloped area, the Secretary of the Interior may issue, to applicants qualified under this chapter prospecting permits for a term of two years. . . (Emphasis added). Compare with 30 U.S.C. § 226(a) (1976):

All lands subject to disposition under this Act which are known or believed to contain oil or gas may be leased by the Secretary. (Emphasis added).

This statutory language indicates that until the Secretary stopped issuing prospecting permits in 1973 (Prospecting Permits for Coal: Limitation of Issuance Order No. 2952, 38 Fed. Reg. 4682 (1973)), he had the same discretion to issue them as he presently has for oil and gas leases. As noted in Natural Resource Defense Council, Inc., v. Berklund, 609 F.2d 553, 555 n. 5 (D.C. Cir. 1979), "The Department of the Interior, throughout the 58 years of administration of these provisions, has consistently interpreted § 201(b) as giving the Secretary discretion in granting of the prospecting permits...

Since the Secretary has the same discretion in the issuance of oil and gas leases, the due process rights accruing to the applicants would also be the same. Krueger's treatment of standing accordingly supports plaintiff's standing. Accord, Mountain States Legal Foundation v. Andrus, 499 F.Supp. 383, 396 (D.Wyo. 1980).

"The cases cited by defendants to the contrary are either inapplicable or factually distinguishable. In Rowe v. United States, 464 F.Supp. 1060(D.Alaska 1979), modified, 633 F.2d 799 (9 Cir. 1980), cert. denied, 451 U.S. 970, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981), the court's reservations about the plaintiffs' standing were directed at only one of several statutory challenges. Despite the standing question even that challenge was rejected on the merits. With regard to the other challenges, the court's discussion of the "right to fair consideration recognized in Schraier", id. at 1071, lends support to plaintiffs' standing argument in the present case. Although McTiernan v. Franklin, 508 F.2d 885 (10 Cir. 1975) held that the plaintiff lacked standing to question title to the mineral rights", id. at 888, it said nothing about standing to question an abuse of due process in considering lease applications.

The plaintiff in Pullman v. Chorney, 509 F.Supp. 162 (D.Colo. 1981), was denied standing only because he failed to establish "the requisite connection between the claimed injury and the challenged conduct. . ." Id at 166-67. There is no such failure in this case.

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