In either event, the Board had to take a judicially reviewable initiative. Here, by contrast, defendant's failure to proceed by rulemaking opened up for him an opportunity to escape judicial review of his constitutional law decision entirely. Unlike the NLRB, the defendant did not require any court action to implement his decision. The defendant's action would have "made law," unless it was challenged. In fact, there was no certainty that the decision would or could be challenged in court; the wrong committed, if there was one, injured the public in general more (and more directly) than it injured any person likely to react with a timely court challenge. Indeed, when the original plaintiffs here did rise to challenge defendant's action, he resisted their challenge on standing grounds. See Statement of Points and Authorities in Opposition to Plaintiffs' Motion for Preliminary Injunction at 12-16.
The statute which defendant declared to be, in part, unconstitutional specifically emphasized the importance of administrative process and judicial review of the defendant's decisions on the leases at issue here. See 43 U.S.C. §§ 1701(a)(6), 1740. Yet so far as defendant was concerned, his action was unreviewable. He was prepared to decide by himself an original constitutional question affecting the public's property contrary to what some (possibly including Congress) considered to be the public interest. And he embarked on this course without affording the public any opportunity for notice and comment, or, so far as he was concerned, without opportunity for judicial review -- all in reliance on the ex parte legal opinion of his Solicitor's Office and informal advice from the Department of Justice. When the Supreme Court gave the NLRB a choice between rulemaking and ad hoc litigation to test its interpretation of a Supreme Court decision, that Court did not intend to give an agency or department the option between judicially reviewable rulemaking and ad hoc decisions which it could protect from effective judicial review. This is not to disparage the professional ability of the Office of the Solicitor or the staff of the Department of Justice. However, an agency or department head deciding an important and original constitutional question will "benefit from outside suggestions" as much or more than courts, including the Supreme Court, who are required by due process and common sense to hear both sides of a constitutional issue before they decide it. See Environmental Defense Fund, Inc. v. Environmental Protection Agency, 716 F.2d at 920.
This further examination of the problem confirms the rationale of the preliminary injunction that the defendant was bound by 43 C.F.R. § 2310.5 to honor the Committee Resolution, unless and until he rescinded the regulation after notice and comment as prescribed by the APA, 5 U.S.C. § 553, or the Committee rescinded its Resolution. See National Wildlife Federation v. Watt, 571 F. Supp. at 1158.
Accordingly, the accompanying Order will grant plaintiffs' motion for summary judgment, deny defendant's cross-motion, and enjoin the defendant to honor the Committee Resolution as required by 43 C.F.R. § 2310.5, unless and until the defendant has complied with the rulemaking requirements of APA and exposed the result to judicial review as contemplated by that Act, or the Committee has rescinded the Resolution.
Date: January 9, 1984
ORDER - January 9, 1984
For reasons more fully stated in an accompanying Memorandum and a Memorandum filed September 28, 1983, it is this 9th day of January, 1984, hereby
ORDERED: that plaintiffs' motion for summary judgment is GRANTED; and it is further
ORDERED: that defendant's motion for summary judgment is DENIED; and it is further
ORDERED: that 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, unless and until (1) the House Interior and Insular Affairs Committee has effectively revoked the Committee Resolution of August 3, 1983; (2) the term of the Resolution has expired pursuant to the time limit imposed by 43 U.S.C. § 1714(e); (3) defendant has, after notice and rulemaking in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 551 et seg., rescinded the second clause of the first sentence of 43 C.F.R. § 2310.5(a); or (4) Congress has repealed, superceded or otherwise effectively rescinded the second clause of 43 U.S.C. § 1714(e). Nothing herein shall prevent the defendants from proceeding with emergency leasing pursuant to 43 C.F.R. § 3425.1-4.