The opinion of the court was delivered by: OBERDORFER
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 Although defendant has not rescinded the regulation, nor conducted notice and comment with respect to recission of it, he justified his refusal to abide by it on the ground that he had been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 Justice
that the Supreme Court's recent decision in INS v. Chadha, 462 U.S. 919, 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, 225 U.S. App. D.C. 61, 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are likely to prevail on the merits because defendant is obligated to apply his own regulation, unless and until it is rescinded after he affords notice and an opportunity to comment.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, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (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.
We have said that the constitutional power of Congress in this respect is without limitation. . . . Thus neither the courts nor the executive agencies, could proceed contrary to an Act of Congress in this congressional area of national power.
Id. at 27. 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 ...