National Wildlife Federation v. Clark, Civ. A. No. 83-2648.

• Decision Date: 10 January 1984
• Docket Number: Civ. A. No. 83-2648.
• Citation: 577 F. Supp. 825
• Parties: NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. William P. CLARK, Defendant.
• Court: U.S. District Court — District of Columbia

577 F. Supp. 825

NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. William P. CLARK, Defendant.

Civ. A. No. 83-2648.

United States District Court, District of Columbia.

January 9, 1984.

As Amended January 10, 1984.

G. Robert Witmer, Jr., Rochester, N.Y., Jane E. Kirtley, Nixon, Hargrave, Devans & Doyle, Norman L. Dean, Jr., National Wildlife Federation, Washington, D.C., for plaintiffs.

F. Henry Habicht, II, Acting Asst. Atty. Gen., Robert D. Daniel, Sp. Litigation Counsel, Michael W. Reed, Peter R. Steenland, Jr., Land & Natural Resources Div., Washington, D.C., for defendant.

John A. Macleod, Timothy M. Biddle, David B. Siegel, Crowell & Moring, Washington, D.C., for defendants-intervenors North American Coal Corp., The Falkirk Mining Co., The Missouri Valley Properties Co., and Baukol-Noonan, Inc.

Stanley M. Brand, Sp. Counsel, Brand, Lowell, Nickerson & Dole, Steven R. Ross, Gen. Counsel to the Clerk, U.S. House of Representatives, Michael L. Murray, Asst. Counsel to the Clerk, Washington, D.C., for

plaintiff-intervenor Honorable Morris K. Udall.

MEMORANDUM ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

OBERDORFER, District Judge.

Defendant is under a preliminary injunction, entered against his predecessor, which restrains him from issuing leases to certain coal lands in Montana and North Dakota, pending decisions on cross-motions for summary judgment.¹ Those motions are now before the Court.

One of the plaintiffs, Chairman Udall of the House Interior and Insular Affairs Committee, suggests that the controversy is mooted by recent legislation which bars further lease sales in the area subject to the preliminary injunction until 90 days after Congress receives the report of the so-called Linowes Commission. Pub.L. No. 98-146, § 108, November 4, 1983. Indeed, Chairman Udall suggests that his very standing to sue was based on his statutory right to have the Secretary stay implementation of the lease offers until Congress could have an opportunity to act. Chairman Udall's Suggestion of Mootness and Opposition to Defendant's Motion for Summary Judgment at 3 n. 2. In the alternative Chairman Udall urges the Court to hold this case until the so-called moratorium expires or Congress enacts some other law on the subject. Plaintiffs National Wildlife Federation and The Wilderness Society join in the request for a stay but do not support the suggestion that the controversy is moot.

Defendant, however, vigorously challenges the suggestion of mootness and presses for decision on the merits. Defendant points out that the House Committee has not rescinded the withdrawal ordered by its Resolution adopted pursuant to section 204(e) of the Federal Land Policy and Management Act of 1976, 43 U.S.C. § 1714(e), and that the injunction sought by plaintiffs would enforce what is in effect a moratorium for up to three years.² In contrast, the moratorium recently legislated in anticipation of the Commission's report will expire in a few months at the latest. Moreover, defendant has made no commitment which would eliminate the prospect of a continuing violation of the Resolution once the latter moratorium expires. Therefore, neither "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). The possibility that the Committee may rescind the Resolution or that Congress may pass a new law which could moot the controversy is necessarily speculative. Compare Iron Arrow Honor Society v. Heckler, ___ U.S. ___, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983). Accordingly, the suggestion of mootness must be rejected.

The plaintiffs' suggestion that the Court stay the action pending the report of the Commission and further action by Congress in order to avoid decision on the constitutionality of an Act of Congress has considerable appeal.³ But the Court is persuaded that it is not necessary to reach "the nerve-center Constitutional questions." See Chairman Udall's Suggestion of Mootness at 4. The solution more fully described below will require the Secretary to honor his own regulation unless and until he has rescinded or amended it after an appropriate rulemaking proceeding, or until the Committee has vacated its Resolution, and therefore does not require a judicial decision on the constitutional issue, at least until the rulemaking process is complete.

For these reasons the Court has proceeded to a decision on the merits after carefully considering the briefs filed by the parties on the merits and the additional oral argument. This decision is based substantially on the rationale for the decision granting the plaintiffs' motion for preliminary injunction and more fully stated in the Memorandum with Respect to Preliminary Injunction, National Wildlife Federation v. Watt, 571 F.Supp. at 1156-58.

Defendant persists in his predecessor's claim that he was not required to conduct a rulemaking before deciding whether the Chadha⁴ decision invalidated section 204(e) and the parallel regulation adopted to implement that statute, 43 C.F.R. § 2310.5. He invokes in support of this position a Supreme Court decision holding that the National Labor Relations Board (NLRB) had a discretionary choice between ad hoc litigation and rulemaking as a means of determining whether particular employees were "managerial employees" within the meaning of the National Labor Relations Act as interpreted by the Supreme Court. NLRB v. Bell Aerospace Co., 416 U.S. 267, 291-93, 94 S.Ct. 1757, 1770-1771, 40 L.Ed.2d 134 (1974). The defendant concedes that if in the present case the Secretary had chosen to rescind the regulation, informal rulemaking would have been required. Statement of Points and Authorities in Support of Defendant's Motion for Summary Judgment at 30 n. 6. Here, however, the argument is that such a requirement applies only with respect to "validly prescribed" regulations. See Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403 (1957). Since this regulation was prescribed in deference to a provision of section 204(e), which the Secretary has determined to be invalidated by Chadha, it is, according to the Secretary, not "validly prescribed" and is a proper subject of rejection by him "on an ad hoc basis." Defendant's Statement at 34.

Defendant's claim cannot withstand the cold light of the language of the Administrative Procedure Act (APA) or the rising number of appellate decisions condemning ad hoc actions by Department heads who fail to apply to changes in regulations the statutory requirements routinely followed in their creation. Section 551 of the APA defines rulemaking as the "agency process for formulating, amending, or repealing a rule." 5 U.S.C. § 551(5). Section 553 fixes minimal requirements of notice and comment for such rulemaking. Congress made these provisions specifically applicable to the Federal Land Policy and Management Act of 1976, and specifically invited judicial review of the Secretary's administration of that Act such as is available by judicial review of administrative rulemaking under the APA. See 43 U.S.C. §§ 1701(a)(6), 1740. The Supreme Court and our Court of Appeals have repeatedly set aside department and agency attempts to amend or rescind outstanding regulations without strict adherence to a process of reasoning on the record with the benefit of informed suggestions from those affected by the proposed rescission or amendment. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., ___ U.S. ___, 103 S.Ct. 2856, 2871, 77 L.Ed.2d 443 (1983); Environmental Defense Fund, Inc. v. Environmental Protection Agency, 716...