National Wildlife Federation v. Watt

No. 83-2648 (571 F. Supp. 1145, 19 ERC 1959) (D.D.C. September 28, 1983)

The court enjoins the Secretary of the Interior from issuing coal leases that the House Committee on the Interior had requested he withhold under § 204(e) of the Federal Land Management and Policy Act and parallel Interior Department regulations. The court first holds that Rep. Udall, chairman of the House committee, and plaintiff environmental groups have standing. The court then rules that plaintiffs are likely to prevail on the merits. The Secretary must follow his own regulations until they are rescinded after notice and opportunity for comment. The provisions in § 204(e) allowing the House committee to stop leasing probably are a valid exercise of Congress' power under art. IV of the Constitution to regulate public lands. Alternately, the Secretary's regulations giving the House committee power to stop leasing probably are valid even if § 204(e) is not. The harm threatened is irreparable, and the balance of equity favors the plaintiffs.

[The court expanded on its rationale in an October 6, 1983 opinion, 14 ELR 20044 — ED.]

Counsel for Plaintiffs
Norman L. Dean Jr.
National Wildlife Federation
1412 16th St. NW, Washington DC 20036
(202) 797-6845

G. Robert Witmer Jr.
Nixon, Hargrave, Devans & Doyle
Lincoln First Tower, Rochester NY 14603
(716) 546-8000

Jane E. Kirtley
Nixon, Hargrave, Devans & Doyle
1090 Vermont Ave. NW, Suite 1200, Washington DC 20005
(202) 842-3600

Counsel for Plaintiff-Intervenor
Stanley M. Brand, General Counsel to the Clerk; Steven R. Ross, Michael L. Murray
U.S. House of Representatives, H-105 Capitol Bldg., Washington DC 20515
(202) 225-7000

Counsel for Defendant
F. Henry Habicht II, Acting Ass't Attorney General; Robert D. Daniel, Michael Reed, Peter R. Steenland Jr.
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4195

[14 ELR 20043]

OBERDORFER, District Judge.

This is an action by plaintiffs against the Secretary of Interior to declare illegal and to enjoin his planned issuance of leases to certain coal lands in Montana and North Dakota. The Honorable Morris Udall, Chairman of the House Interior and Insular Affairs Committee, has intervened as a plaintiff. Potential lessees have intervened as defendants.

At issue is the legality of the Secretary's refusal to withhold issuance of the leases as required by section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1714(e), and a parallel Department of Interior regulation. 43 C.F.R. § 2310.5. Both section 204(e) and the regulation require the Secretary temporarily to withhold public lands from sale or lease when requested to do so by the House Committee. Although defendant has not rescinded the regulation, nor conducted notice and comment with respect to recission of it, he justified his refusal to abide by it on the ground that he had been advised by his general counsel and by the Office of Legal Counsel of the Department of Justice¹ that the Supreme Court's recent decision in INS v. Chadha, — U.S. —, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983), invalidated both the statute and the regulation. See letter from Secretary Watt to Chairman Udall (Sept. 9, 1983) (Attachment A to Defendant's Memorandum Opposing Motion for Preliminary Injunction).

After consideration of briefs of the parties, and an excellent oral argument, and for reasons more fully stated in a Memorandum to be filed, the Court concludes that:

1. Chairman Udall has standing to sue to vindicate his interest as a Congressman and as a Committee Chairman in seeking to compel the defendant to honor a resolution adopted by his Committee pursuant to section 204(e). See American Federation of Government Employees v. Pierce, 697 F.2d 303, 305 (D.C.Cir.1982). This standing, coupled with the plaintiff organizations' interest in preservation of the land sought to be leased, give the organizations standing also. See Watt v. Energy Action Educational Foundation, 454 U.S. 151, 102 S. Ct. 205, 212, 70 L. Ed. 2d 309 (1981).

2. Plaintiffs are likely to prevail on the merits because defendant is obligated to apply his own regulation, unless and until it is rescinded after he affords notice and an opportunity to comment. Service v. Dulles, 354 U.S. 363, 77 S. Ct. 1152, 1 L. Ed. 2d 1403 (1957).

It is not at all clear that section 204(e) and the regulation are void. Indeed, they may well be authorized by Article IV, Section 3, of the Constitution, independently of Article I, the subject of the Chadha decision.

As the Supreme Court has stated:

Congress not only has a legislative power over the public domain, but it also exercises the powers of a proprietor therein . . . . Like any other owner it may provide when, how, and to whom its land can be sold.

United States v. Midwest Oil Co., 236 U.S. 459, 474, 35 S. Ct. 309, 313, 59 L.Ed. 673 (1915); see also Kleppe v. New Mexico, 426 U.S. 529, 536-43, 96 S. Ct. 2285, 2290-93, 49 L. Ed. 2d 34 (1976). It may well be held that the statute requiring the Secretary temporarily to withdraw lands at the request of a designated congressional committee in order that Congress may reexamine the leasing process after an impending recess is an appropriate exercise of the proprietary power, as distinguished from legislative power, created in Congress by Article IV, Section 3.

Dictum in United States v. California, 332 U.S. 19, 28, 67 S. Ct. 1658, 1663, 91 L.Ed. 1889 (1947), relied upon by defendant, is not controlling here. That original action involved the question of whether California or the United States "owns or has paramount rights in and power over several thousand square miles of land under the ocean off the coast of California." Id. at 24-25, 67 S. Ct. at 1661. In deciding that the Congress had not precluded the Attorney General from prosecuting that original action, the Court recognized that only a formal Act of Congress pursuant to Article IV could divest the Attorney General of his authority to sue. But the California opinion went on to note with respect to Congress' Article IV power.

We have said that the constitutional power of Congress in this respect is without limitation . . . . Thus neither the courts [14 ELR 20044] nor the executive agencies, could proceed contrary to an Act of Congress in this congressional area of national power.

Id. at 27, 67 S. Ct. at 1663. Congress enacted section 204(e) and a President signed it. It is an Act of Congress "in this congressional area of national power." One provision requires the Secretary to withhold leasing temporarily at the request of the House Committee. The California opinion may well presage a decision that neither the defendant nor the courts may "proceed contrary" to that statute.

Moreover, even if portions of section 204(e) are unconstitutional, the independent discretion given to the Secretary by section 204(e) to withdraw the land probably preserved the regulation, unless and until the Secretary rescinded it after notice and comment. In these circumstances, his failure to honor the regulation probably violated the Administrative Procedure Act, 5 U.S.C. § 553: See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., — U.S. —, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983).²

3. Issuance of the leases, or any other change in the statuts quo, would irreparably injure plaintiff Udall's interest in vindication of his prerogatives as a Committee Chairman and as a Member of the House, and would leave the other plaintiffs at risk of irreparable injury to their interests in protection of environmental values in the land.

4. Defendants' interests in issuance of the leases during fiscal 1983 where pending legislation might preclude or delay their issuance in fiscal 1984 are outweighed by the interest of the plaintiffs and by the public interest. That interest is authoritatively expressed by the 1976 Act, the Committee Resolution, a recent Act of Congress requiring a Commission to study coal leasing procedure (Pub.L. No. 98-63, July 30, 1983), and similar bills passed by both Houses of Congress (see 129 Cong.Rec. S 12,486-95, Sept. 20, 1983) and now reportedly under consideration by a Conference Committee which, if enacted, would declare a moratorium on such leases during fiscal 1984.

Accordingly, it is this 28th dayof September, 1983, hereby

ORDERED: that pending a decision on the motions for summary judgment, unless this order is sooner dissolved, and without plaintiffs being required to give security therefor, the defendants, their agents, servants, employees, attorneys, and representatives shall be stayed, enjoined, and restrained from issuing to, entering into, or otherwise vesting in any person rights to coal leases for tracts in the Fort Union Coal Region; and it is further

ORDERED: that defendant's protective motion for a stay pending appeal is DENIED.

1. Compare 28 U.S.C. § 512 authorizing the head of an executive department to "require the opinion of the Attorney General on questions of law arising in the administration of his department."

2. Defendant also claims that even if section 204(e) and the regulation are valid, the September 9 letter is the functional equivalent of the report required of him by section 204(e), as more fully described in section 204(c)(2). The Court has compared the September 9, 1983, letter with an Interior Department report on an emergency withdrawal of land forwarded to the House Committee on September 10, 1981, with respect to what appears to be proposed leasing of other Montana lands at issue in Pacific Legal Foundation v. Watt, 529 F. Supp. 982 (D.Mont. 1982). The comparison demonstrates the apparent failure of the September 9 letter to comply with the requirements of section 204(c)(2).