holding that, because “the Secretary [of the Interior] had discretion [under the Refuge Act and the Fish and Wildlife Act] to determine whether he should enter into the agreement for the exchange of the lands, his action in so doing is not reviewable by the courts.”
How later courts described this case
- holding that, because “the Secretary [of the Interior] had discretion [under the Refuge Act and the Fish and Wildlife Act] to determine whether he should enter into the agreement for the exchange of the lands, his action in so doing is not reviewable by the courts.”
Written by the judges who cited it.
The opinion
McCREE, Circuit Judge
(concurring).
I agree that the doctrine of sovereign immunity bars plaintiffs’ action against the Secretary. See Hawaii v. Gordon, 373 U.S. 57 , 83 S.Ct. 1052 , 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643 , 82 S.Ct. 980 , 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949); see generally Cramton, Nonstatutory Review of Federal Administrative Action: The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 387 (1970); Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1 (1963). And since this action cannot be maintained against the Secretary, an independent basis for suing the utility companies must appear in the amended complaint, and my examination of the pleadings discloses none. The complaint, construed most favorably to the plaintiffs, does not contend that in the land exchange the nongovernmental defendants injured rights possessed. by the plaintiffs. In these circumstances, I believe that the complaint was properly dismissed. It should be emphasized that this dismissal intimates no view on any subsequent action that might be brought by plaintiffs against the utilities to determine the rights and duties of the parties respecting the utilization of Navarre Marsh.