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September 28, 1983

JAMES G. WATT, Defendant

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 Although defendant has not rescinded the regulation, nor conducted notice and comment with respect to recission of it, he justified his refusal to abide by it on the ground that he had been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 *fn1" 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are likely to prevail on the merits because defendant is obligated to apply his own regulation, unless and until it is rescinded after he affords notice and an opportunity to comment.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.

 Dictum in United States v. California, 332 U.S. 19, 28, 91 L. Ed. 1889, 67 S. Ct. 1658 (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. 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 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 Co., 463 U.S. 29, 103 S. Ct. 2856, 77 L. Ed. 2d 443 (1983). *fn2"

 3. Issuance of the leases, or any other change in the status 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 interests 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 day of 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.

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