The complete text of the January 29, 1982 opinion of the circuit court is printed in the "Decisions" section of this report at page 421. Pacific Legal Foundation v. Watt Civil Action No. CV-81-141-BLG (D. Mont.) Mountain States Legal Foundation v. Watt Civil Action No. CV-81-168-BLG (D. Mont.) On May 21, 1981, the Committee on Interior and Insular Affairs of the U.S. House of Representatives ("Committee") approved a resolution finding that an "emergency" situation existed in the Bob Marshall, Scapegoat, and Great Bear Wilderness Areas of Montana, and directing the Secretary of the Interior to immediately withdraw these areas from the operation of mineral leasing laws until January 1, 1984. This action was taken pursuant to the authority of section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701 et seq. ("FLPMA"), which pro vides that: (e) When the Secretary determines, or when the Commit- On June 1, 1981, Secretary of the Interior James G. Watt signed Public Land Order No. 5952, entitled "Montana Emergency Withdrawal: Bob Marshall, Great Bear and Scapegoat Wilderness Areas," and notified both the Senate and House Committees on Interior and Insular Affairs that it had been signed. In his notification letter to the Committee, Secretary Watt expressed his objection to the conclusions cited as the basis for the Committee resolution, questioned the constitutionality of the action he had been directed to take, and noted his reservations about the statutory authority to "withdraw" lands. On June 3, 1981, Mountain States Legal Foundation ("MSLF") filed a complaint for injunctive and declaratory relief against Secretary Watt in the U.S. District Court for the District of Colorado. [Civil Action No. 81-C-899] MSLF asked the court to: (1) enjoin the Secretary from withdrawing the Bob Marshall, Great Bear and Scapegoat Wilderness Areas from the operation of the mineral leasing laws; (2) declare unconstitutional those provisions of section 204(e) which purport to empower the House or Senate Committees on Interior and Insular Affairs to determine that emergency conditions exist and to order the withdrawal of lands on that basis; (3) declare the Committee resolution null and void; (4) declare that neither the House nor Senate committees could use the emergency withdrawal power of section 204(e) to override section 4(d)(3) of the Wilderness Act of 1964 (16 U.S.C. § 1133(d)(3)(1976)) which states that "mining laws and all laws pertaining to mineral leasing shall extend to . . . 'wilderness area[s]'" until December 31, 1983; (5) declare that no "emergency" existed in the areas designated in the resolution; and (6) declare that withdrawal of the areas based on the resolution would deprive those plaintiffs holding pending oil and gas lease applications in the designated areas of their Fifth Amendment right to due process. Simultaneously with the filing of the complaint, MSLF filed a motion for a temporary restraining order and a preliminary injunction to prevent Secretary Watt from taking any action, including the publication in the Federal Register of the public land order withdrawing the three wilderness areas, prior to a full hearing and a decision on the merits of the plaintiff's complaint. In a memorandum accompanying this motion, MSLF argued, first, that its member-applicants would be irreparably injured if a preliminary injunction was not granted because they would lose their priority status if new lease applications subsequently had to be filed. Second, MSLF contended, there would be no adverse environmental impact on the three wilderness areas if a preliminary injunction was granted because there was "no likelihood" that the necessary administrative actions to permit oil and gas exploration would occur in the near future. Third, the plaintiff asserted, the public interest would be advanced by granting the preliminary injunction because pending applications to explore and develop the mineral values of the wilderness areas would continue to be processed. Finally, MSLF maintained, it was likely to win the case on the merits, thus justifying the issuance of temporary injunction preventing the withdrawal. According to the plaintiffs, the delegation of essentially executive powers to the committees in section 204(e) of FLPMA violated the separation of powers doctrine, and there was a "strong likelihood" that a court would so rule. Further, MSLF argued, it was also likely that a court would agree that the Committee and the Secretary of the Interior lacked the authority to in effect repeal the Wilderness Act's provision holding the areas open to mineral leasing until the end of 1983. The plaintiff's motion for a temporary restraining order was argued before U.S. District Court Judge James Carrigan the same day it was filed. The judge denied the motion from the bench, stating that time constraints did not permit a full examination of the facts and that any injury resulting from the publication of the land order could, in any event, be remedied by the court at a later time by either temporary or permanent relief. On June 9, 1981, MSLF filed an amended complaint in the Colorado district court to reflect the fact that Public Land Order No. 5952, withdrawing the three wilderness areas from the operation of the mineral leasing laws, had been published in the June 5, 1981 edition of the Federal Register (46 Fed. Reg. 30086). The amended complaint also added the Secretary of Agriculture, John R. Block, as a defendant, alleging that he was responsible for regulations governing ingress and egress in conjunction with mineral exploration and development in wilderness areas as well as for preparing, through a delegation from the Secretary of Interior, the environmental impact statement and for making recommendations on pending lease applications. In addition to the relief requested in the original complaint, the amended version asked the court to: (1) enjoin the Secretary of Interior from rejecting pending oil and gas lease applications in the three areas; (2) order the Secretary of Agriculture to continue to prepare his recommendations on the pending applications and to prepare the necessary environmental impact statement ("EIS") pending a final adjudication of the case on the merits; and (3) declare Public Land Order No. 5952 null and void. Also on June 9, 1981, the plaintiff filed a second motion for a preliminary injunction, requesting that the court enjoin the Bureau of Land Management from rejecting pending lease applications because of the withdrawal and enjoin the Secretary of Agriculture, acting through the Forest Service, from terminating its EIS process. Meanwhile, on June 4, 1981, Pacific Legal Foundation ("PLF") filed a similar complaint for injunctive and declaratory relief against Secretary Watt in the U.S. District Court for the District of Montana. [Civil Action No. 81-141-BLG] Like the complaints filed in Colorado by MSLF, PLF's action was premised on the Committee resolution directing the Secretary to withdraw the three wilderness areas from disposition under laws pertaining to mineral leasing. The relief requested was also similar; the complaint asked the court to: (1) declare the directive unconstitutional under the separation of powers doctrine; (2) declare the directive an unlawful usurpation of the discretionary authority delegated to the Secretary of Interior by section 204(e) of FLPMA; (3) declare the directive "arbitrary, capricious, and an abuse of discretion" because there was no rational basis to determine that an "emergency" situation existed in the wilderness areas; and (4) enjoin the Secretary from taking any action to implement the directive. On June 15, 1981, a stipulation was filed proposing a briefing schedule in the PLF case. Since the parties agreed that the litigation might involve challenges to the constitutionality of section 204(e) of FLPMA, the court was requested to, and subsequently did, formally invite both houses of Congress to participate in the proceedings as amici curiae. In the MSLF case in Colorado, Judge Carrigan, on his own motion on June 18, 1981, ordered the parties to submit simultaneous briefs on certain jurisdiction and venue issues which had been raised at the temporary restraining order hearing. After these briefs were submitted on July 14, 1981, Judge Carrigan issued an order transferring the action to the District of Montana, pursuant to 28 U.S.C. §1404(a). On July 30, 1981, U.S. District Judge W. J. Jameson of the Montana court consolidated the MSLF case [Civil Action No. 81-168-BLG] with the pending PLF action, with the condition that MSLF comply with the briefing schedule contained in the June 15 stipulation. On August 6, 1981, Attorney General William French Smith advised Congress by letter that the Department of Justice would urge the court to hold the statute in question-section 204(e) of FLPMA (43 U.S.C. §1714(e))—unconstitutional. The Attorney General suggested that the Houses of Congress might wish to submit briefs amici curiae in support of the statute. During July and August, motions to intervene in the proceedings were filed by the Bob Marshall Alliance and the Wilderness Society as well as by the Sierra Club. These motions were later granted by the court in an order filed on August 18, 1981. On August 17, PLF filed an amended complaint reflecting publication of Public Land Order No. 5952 in the Federal Register subsequent to the filing of the original complaint. Secretary Watt remained the sole defendant, and the relief requested was identical, although the amended version sought as well a declaration that (1) the action of the Secretary in issuing the public land order was arbitrary, capricious, and an abuse of discretion and (2) the order was "null, void, and of no legal effect." Also on August 17, 1981, plaintiffs MSLF and PLF filed motions for summary judgement and supporting memoranda. While the two organizations assigned somewhat different priorities to their contentions, they essentially made the same arguments: (1) the provisions of section 204(e) of FLPMA under which the Committee directed the withdrawal of the wilderness areas were unconstitutional as violative of the separation of powers doctrine (citing in particular Chada v. Immigration and Naturalization Service, 634 F. 2d 408 (9th Cir. 1980); (see page 271 of this report for a discussion of that case); (2) the Committee's withdrawal under section 204(e) ran directly counter to the statutory criteria already established under section 4(d)(3) of the Wilderness Act, which contemplated mineral leasing in designated wilderness areas until December 31, 1983; (3) the Committee (and the Secretary of Interior) failed to establish that an "emergency" existed to support the issuance of Public Land Order No. 5952; and (4) the withdrawal denied the plaintiffs their rights to due process of law because the orderly processing of their oil and gas lease applications was preempted by the purportedly unlawful withdrawal. PLF argued as well that Secretary Watt acted "arbitrarily and capriciously and abused his discretion" in issuing the public land order, since not only had no basis been established for the scope and duration of the order, but also his decision to issue it was based on "improper influence by Members of Congress. On September 9, 1981, the Federal defendants filed a cross motion to dismiss the complaint and/or for summary judgment and a supporting memorandum. While the defendants in essence agreed with the plaintiffs on the merits of the case-that is, that the action was controlled by the Chadha decision and that section 204(e), insofar as it authorized one committee of either House of Congress to direct the Secretary of the Interior to take an action which would change the status of public lands, was unconstitutional-they argued that the court should not reach the merits at all because the "plaintiffs have no Article III standing to press these claims against federal defendants because the injury they allege is too conjectural and speculative." [Memorandum in Support of Federal Defendants' Cross Motion To Dismiss. . ., September 9, 1981, at 3] First addressing the standing issue, the Federal defendants argued that the allegations of the MSLF and PLF complaints did not support a claim of standing because they did not demonstrate sufficient actual or threatened injury. The defendants noted that neither MSLF nor PLF had claimed harm to itself as an organization, but had only expressed a generalized and abstract interest in issues of public land development and the effect of government on such matters. Moreover, the defendants asserted, "the mere filing of an application for a non-competitive oil and gas lease... does not create a property interest or any legal right in a lease" sufficient to confer standing. [Id. at 13] Furthermore, they argued, the "members" and "supporters" of and "contributors" to MSLF and PLF, did not, individually or collectively, have standing: PLF and MSLF's assertions of injury made on behalf of their "supporters" and "contributors" are in fact far removed from the sort of injury required for standing. Although an organization like PLF and MSLF may have standing to represent its members in certain circumstances, to confer on it standing to represent mere supporters and contributors would be apparently unprecedented and could make the constitutional and prudential limitations on standing meaningless. If a large organization could gain access to the federal courts to challenge any action that might affect the interests of any person who had made a tax-deductible contribution to the organization ("supporter" or "contributor") or who agreed with the organization's views ("supporter"), then that organization could have virtually unlimited access to the courts. In effect, on such a theory, an organization of any significant size could assert standing to represent in court the grievances of the public at large, a result clearly not in accordance with Article III's limitations on the court's power. Warth v. Seldin, 422 U.S. 490, 499 (1975); Sierra Club v. Morton, 405 U.S. 727, 737 (1972). [Id. at 15-16] In addition to maintaining that the plaintiffs had failed to meet the constitutional requirements of standing, the defendants also contended that "prudential" standing considerations had not been satisfied and therefore the court's jurisdiction should not be invoked. Turning next to the plaintiffs' claims that they had been deprived of due process, the defendants asserted that the issue was controlled by Burglin v. Morton, 527 F. 2d 486 (9th Cir. 1975) which rejected mineral lease applicants' claims that a withdrawal of land by the Secretary of the Interior was a taking of property without due process. The Federal defendants then argued that, if the court found that it had jurisdiction over the complaints, it should order the Secretary to revoke Public Land Order No. 5952 on the ground that the Committee had no statutory authority to direct the Secretary to |