Sierra Club v. Hickel

FEIKENS, District Judge

(dissenting).

There are competing interests in our country between the need to preserve our environment and the demand for new sources of power and energy. It is not easy to find a proper balance between these needs, but it is a task that must be begun or the results of indecision — a destroyed environment — will preclude any balance at all. Can a nuclear power plant and a wildlife refuge exist side by side in the same marsh? That is the issue in this case.

In the past decade, Congress has evidenced a clear mandate that this task of balancing must be commenced.

The Sierra Club and the Citizens for Clean Air and Water commenced this suit to seek a determination whether the Secretary of the Interior made such a studied balance in giving up -a part of land in the National Wildlife Refuge System so that a nuclear power plant could be erected there.

In an affidavit which was filed in the District Court, Secretary of the Interior Stewart Udall, who was in office at the time of the exchange, testified:

“1. During the exchange negotiations and formal exchange of Navarre Marsh for Darby Marsh in 1967-1968, I was the duly appointed Secretary of the Department of the Interior for the government of the United States.

“2. At and during the period of time during which the aforesaid land exchange was under consideration by the Department’s Bureau of Sports Fisheries and Wildlife, I received only a superficial explanation of the proposed land exchange. Due to this fact, the ecological consequences, of this transaction were not brought to my attention.

“3. On the 15th day of February, 1971, the sworn affidavits of Drs. Skoch, Trautman, and Meeks, as well as those of Messrs. Van Camp, Lau, and Trenehard, were submitted to me. I have familiarized myself with the facts related therein.

“4. Had the facts stated in the aforementioned affidavits been brought to my attention during the Department’s decision-making process, I most probably would have refused to approve the exchange.

“5. Having read the aforesaid affidavits and having familiarized my *1056 self generally with the proposed Navarre Marsh construction plans of the electric utility companies, e. g., the expected excavation and laying of a submerged outflow pipe for the Davis-Besse Plant, I join in the conclusion of the natural scientists that irreparable damage will most probably be caused to a known, valuable wildlife refuge area by further construction within its confines.”

The Navarre Marsh, the subject matter of this litigation, was acquired by the Government on May 15,1967. In October, five months later, the Secretary entered into an agreement to transfer this land as a part of an exchange for another marsh. Presumably at the time of its acquisition the Secretary followed statutory requirements and determined before purchase that this marsh was necessary for the conservation of migratory birds and other wildlife, 16 U.S.C. § 715 (a), and yet five months later, this land was bargained away. Plaintiffs have asked that this transfer be set aside unless it can be shown that the Secretary either followed the statute under which he was proceeding by making a determination that the wildlife refuge was no longer necessary for conservation purposes or by making a determination that the exchange and the resultant use of the marsh would not be harmful to the wildlife refuge system.

Of preliminary concern is the question of standing.

Standing, as recently stated by the Supreme Court in Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972), requires a preliminary showing of individual injury. This has been satisfied here. Plaintiffs have alleged in their complaint:

“In addition, the Sierra Club and the Citizens for Clean Air & Water represent a class composed of their individual members who reside in the Northern Ohio area and who have regularly used and enjoyed the Navarre Marsh to observe and study the wildlife which inhabit the Navarre Marsh and the migratory birds which frequent the Navarre Marsh as a stopover point on their northerly and southerly migrations, and other members of the Sierra Club and Citizens for Clean Air & Water who regularly fish in the area of Lake Erie adjacent to the Navarre Marsh. Plaintiffs further state that the illegal and improper exchange of Navarre Marsh for other lands, has caused and will cause severe damage to the individual conservation and aesthetic interests of their members as more particularly set forth hereinafter.”

Furthermore, it is clear that:

“. . . once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.” Sierra Club v. Morton, 405 U.S. 727 , 92 S.Ct. 1361 , 31 L.Ed.2d 636 (1972).

So, since plaintiffs have shown requisite standing in making their cause of action, they may properly assert the public interest in framing their claims.

The complaint alleges that the Secretary failed to consider the intent and purposes of the various acts under which he is required to act and that his conduct was accordingly ultra, vires.

16 U.S.C. § 701 requires the Secretary to preserve and protect game and other wild birds.

“The duties and powers of the Department of the Interior include the preservation, distribution, introduction and restoration of game birds and other wild birds.”

16 U.S.C. § 715i directs him to protect migratory birds in accordance with treaties with Canada and Mexico, and to protect other wildlife and to develop adequate wildlife habitats.

“§ 715i. Administration — Treaty obligations; rules and regulations

“(a) Areas of lands ... or interests therein acquired or reserved pursuant to sections 715-715d, 715e, *1057 715f — 715k, and 715n-715r of this title shall, unless otherwise provided by law, be administered by the Secretary of the Interior under rules and regulations prescribed by him to conserve and protect migratory birds in accordance with treaty obligations with Mexico and Canada, and other species of wildlife found thereon, including species that are threatened with extinction, and to restore or develop adequate wildlife habitat.”

16 U.S.C. § 742a(3) requires him to protect fish and other wildlife resources.

16 U.S.C. § 668aa et seq., the Endangered Species of Fish and Wildlife Act, is the act under which this exchange was made (16 U.S.C. § 668dd(i)). Here Congress has stated:

“. . . The purposes of this Act are to provide a program for the conservation, protection, restoration, and propagation of selected species of native fish and wildlife, including migratory birds, that are threatened with extinction.” 16 U.S.C. § 668aa.

These sections illustrate strong congressional intent to preserve our environment and the natural habitat of birds and other wild animals. In this respect, it would be well to keep in mind the congressional admonition found in the National Environmental Policy Act (42 U. S.C. § 4331) that:

“. . . it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” 42 U.S.C. § 4331 (a). 1 (Emphasis added.)

The section under which the Secretary acted states:

“(b) In administering the System, the Secretary is authorized—

(3) to acquire lands or interests therein by exchange (a) for acquired lands or public lands

. which he finds suitable for disposition. . .”16 U.S. C. § 668dd(b)(3).

This language is part of the Endangered Species of Fish and Wildlife Act added in 1966.

Defendants contend that this section gives the Secretary total discretion to dispose of any land, regardless of the harmful effect such transfer would have on the system he is required to administer. This contention is unacceptable. The intent of Congress is clear. It has stated, “. . . The purposes of this Act are to provide a program for the conservation, protection, restoration, and propagation of selected species of native fish and wildlife, including migratory birds, that are threatened with extinction.” 16 U.S.C. § 668aa.

“(b) It is further declared to be the policy of Congress that the Secretary of the Interior, the Secretary of Agriculture, and the Secretary of Defense, together with the heads of bureaus, agencies, and services within their departments, shall seek to protect species of native fish and wildlife, including migratory birds, that are threatened with extinction, and, insofar as is practicable and consistent with the primary purposes of such bureaus, agencies, and services, shall *1058 preserve the habitats of such threatened species on lands under their jurisdiction.” 16 U.S.C. § 668aa(b).

This direction of Congress requires the Secretary to protect endangered species and to consider the effect that an exchange of land would have on such species.

It is contended that these purpose clauses impose no legal duty upon the Secretary. There are, however, some limits on the Secretary’s action; otherwise, the statute would be infirm as an unconstitutional delegation of authority. If there are no standards by which it is possible to determine “whether the will of Congress has been obeyed,” the delegation is too vague.

As the Supreme Court stated in Stark v. Wickard, 321 U.S. 288, 309-310 , 64 S.Ct. 559, 571 , 88 L.Ed. 733 (1944):

'“When Congress passes an Act empowering administrative agencies to carry on governmental activities, the power of those agencies is circumscribed by the authority granted. This permits the courts to participate in law enforcement entrusted to administrative bodies only to the extent necessary to protect justiciable individual rights against administrative action fairly beyond the granted powers. The responsibility of determining the limits of statutory grants of authority in such instances is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.”

Section 668dd(b)(3) which exempts exchanges from certain statutory requirements is cited. Even though the exchange exemption has been broadened and applies only to the stated statutory objective (for example, he is obligated to consult with the Migratory Bird Conservation Commission), the exchange power is still subject to review under the general purpose clause of the statutes cited.

Since the administrative regulations do not detail the purposes for which exchanges may be made, the court must turn to the only guidelines available— the general purposes for which the various environmental statutes were enacted.

An agency may not exercise uncontrollable discretion — to hold otherwise would be to depart from those principles of government to which we have long adhered.

Since the Secretary may have chosen to act without regard to statutory standards, this court should require a trial to determine if the action was lawful. To hold the cause unreviewable does not resolve the question of administrative discretion. It is precisely the function of the trial to determine if the Secretary did act within the powers granted him...

If the Secretary had chosen the wiser course and had held hearings and made findings, indicating the purposes and reasons for arriving at the decision that a nuclear power plant in the Navarre Marsh is not incompatible with the National Wildlife Refuge System, this court would not have to perform the task which the government now so strenuously opposes. It is this inquiry that must be made.

Plaintiffs allege that the Secretary acted without regard to the effect his' action would have on birds and other en-: dangered species which habítate Navarre Marsh. If this is so, the exchange must be set aside. -

Defendants argue that even though the Secretary may have abused his discretion, his action is unreviewable even for abuse because it is “action committed to agency discretion.” The Administrative Procedure Act ( 5 U.S.C. § 701 ) states that judicial review of agency action may be made except where “agency action is committed to agency discretion by law.”

The Supreme Court has stated in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967), that “. . . judicial review . . . will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress” *1059 and that the Administrative Procedure Act “embodies the basic presumption of judicial review ... so long as no statute precludes such relief or the action is not one committed by law to agency discretion, . . .” and that the Act’s “generous review provisions must be given a ‘hospitable’ interpretation.”

Of prime importance is legislative intent. After careful study of the legislative history of these provisions, I can find no intent to preclude review. Although there is indication that the Secretary has wide discretion, there is no hint that the discretion is boundless, or not subject to review for abuse.

An analysis of cases involving agency actions that have been held unreviewable illustrates a pattern. The courts have held that cases which involve political questions, United States v. Sisson, 396 U.S. 812 , 90 S.Ct. 92 , 24 L.Ed.2d 65 (1969), questions concerning military matters, Curran v. Laird, 136 U.S.App.D.C. 280 , 420 F.2d 122 (1969), or matters involving administrative expertise, Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 , 78 S.Ct. 752 , 2 L.Ed.2d 788 (1958), see also Kletschka v. Driver, 411 F.2d 436 (2nd Cir. 1969), are not reviewable.

Where, however, as here, the question is appropriate for court review because it involves matters suitable for judicial resolution, courts have not hesitated to review. As stated in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 , 91 S.Ct. 814, 820 , 28 L.Ed.2d 136 (1971):

“. . . the Secretary’s decision here does not fall within the exception for action ‘committed to agency discretion.’ This is a very narrow exception. Berger, Administrative Arbitrariness and Judicial Review, 65 Col. L.Rev. 55 (1965). The legislative history of the Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply.’” S.Rep.No.752, 79th Cong., 1st Sess., 26 (1945).

Here it is clear that there is law to apply. The question for trial is whether there are sufficient findings to support the conclusion that the Navarre Marsh can contain a nuclear power plant and still protect migratory birds — that the Navarre Marsh containing a nuclear power plant does not endanger birds or animals threatened with extinction. See 16 U.S.C. § 668aa et seq.

The majority contend that regardless of any breach of duty by the Secretary, this action must be dismissed because of sovereign immunity, relying upon Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949). This contention is not sound.

Larson involves a case where plaintiffs alleged that the Government breached its contract with the plaintiff. The Supreme Court held that the action was barred by sovereign immunity. The Court held that the sales agent had the power to construe the contract:

“There is no allegation of any statutory limitation on his powers as a sales agent. In the absence of such a limitation he, like any other sales agent, had the power ... to refuse delivery in cases in which he believed that the contract terms had not been complied with. His action in so doing in this case was, therefore, within his authority even if, for purposes of decision here, we assume that his construction was wrong and that title to the coal had, in fact, passed to the respondent under the contract.” 337 U.S. at 703 , 69 S.Ct. at 1468 .

The principle enunciated in Larson only applies where an agent has authority to act but acts wrongfully under general contract or tort theory. It does not apply where the cause of action, as here, is based upon the Secretary’s alleged failure to follow the statute:

“. . . [Wjhere the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing the *1060 business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief.” 337 U.S. at 689 , 69 S.Ct. at 1461 .

This teaching applies squarely to the case before us. Plaintiffs’ cause of action rests on the language of the statute. It imposes a duty on the Secretary to consider environmental effects, and the effect on the wildlife system as a whole before he transfers land out of the system. If he has not done so his action is ultra vires.

The land exchange is prohibited if inconsistent with a “program for the conservation, protection, restoration, and propagation of selected species of native fish and wildlife, including migratory birds, that are threatened with extinction.” (16 U.S.C. § 668aa), or if it does not “seek to protect species of native fish and wildlife, including migratory birds, that are threatened with extinction”. (16 U.S.C. § 668aa(b)). These are the statutory standards.

The majority contend that to allow this suit would stop the Government in its tracks. Perhaps, on a trial, that would be the result here. The courts have never hesitated to halt governmental action when it is illegal. The only party stopped, in fact, is not the Government, but the utilities, until it is determined by a trial that there is a balance between the congressional purpose of protecting our wildlife and our environment with our need for power. It is possible that a nuclear power plant can exist in the Navarre Marsh and not harm the environment or threaten wildlife. This must be ascertained, and if such is not possible, the Secretary acted without authority. Sovereign immunity cannot be used as a shield to prevent inquiry. If so, we will most certainly lose the fight to conserve and preserve our environment. The Executive Department of government cannot hide behind such an immunity. The utilities, too, should be interested in the inquiry involved in a trial. The American people yearn for solutions that would provide both additional power and a preserved environment. The utilities can make a great and continuing contribution by pointing the way.

If, as a result of a determination at trial that the exchange was made without a proper determination of the ecological effects, the transfer must be set aside. This would include return of the consideration for the exchange, the Darby Marsh, which was transferred to the Government.' Defendants argue that this would violate the principles of sovereign immunity. This is not so. If as here the action is not barred by sovereign immunity, the form of remedy does not make it so. Once it is determined that the Government acted illegally, a court of equity has full power to restore the parties to the status quo ante. As stated in Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122 , 448 F.2d 1045, 1052-1053 (1971),

“To the extent that sovereign immunity survives as an assurance that courts, rather than the Congress, will not dictate the disposition or utilization of property which belongs to all the people and which, with good reason in democratic theory, has been immemorially thought to reside under the legislative will, we find no threshold jurisdictional bar in the record before us. There is nothing new about judicial entertainment of suits which charge that federal officials are acting outside of, or in conflict with, the responsibilities laid upon them by the Congress or the Constitution. Whether such charges are true, and, if so, what remedial action the court should or may direct, are questions partaking of the merits, and not of jurisdiction to explore the merits.

“If, after trial, it be found that ap-pellees do in fact have a responsibility for the property in their care which they are not recognizing adequately, the court’s power, at the least, to declare that responsibility and to define that default is not dissipated solely by *1061 the circumstances that legal title to the property is in the United States. To hold otherwise would be to say that sovereign immunity forecloses any judicial inquiry whatsoever into the custodianship by a federal official of federal property. There is no magic about real estate, or its ownership by the United States, which hedges its guardians about with an immunity not available to other executants of public policies committed to their care by the Congress.”

To the same effect, Bob Jones University v. Connally, 341 F.Supp. 277, 284 (D.S.C.1971):

“It has long been recognized that the sovereign cannot act illegally or unconstitutionally and, therefore, if an act or threatened action is unconstitutional or illegal it is not the action of the sovereign and such acts or threatened acts can be enjoined.”

The same principles apply here.

For my brother Judge MeCree, sovereign immunity stands as a bar. I respectfully disagree. In his 1970 Supplement to Administrative Law Treatise, Professor Davis says (Section 27.00-4, p. 905):

“Sovereign immunity often produces an uncivilized result, because what counts — what determines who gets the property, for instance — is not reason but force, not law but power, not orderly adjudication but physical taking by the stronger party, not refinements the sum of which we call civilization but crudities that are sometimes characteristic of primitive men.”

Professor Davis continues at page 906:

“A thoughtful district judge recently said that sovereign immunity ‘rests either on the theory that the United States is the institutional descendant of the Crown and enjoys its immunity or on a metaphysical doctrine that there can be no legal right as against the authority that makes the law.’ 30 ”

Accordingly, I would reverse the dismissal (granted on motion) and require the cause to proceed to trial. Plaintiffs, as a matter of law, have the burden of proof, but the vital requirement — the inquiry, in court, to determine whether here there is a balance between competing interests — is essential.

. I do not intimate that a retroactive application of the E.P.A. is the cornerstone of plaintiffs’ complaint although some courts have applied this act to existing projects insofar as is practicable; e. g., Environmental Defense Fund v. TVA, 339 F.Supp. 806 (E.D.Tenn.1972). Rather, X feel that this act, among others, indicates the attitude and spirit of congressional legislation relative to the environment.

. Martyniuk v. Pennsylvania, 282 F.Supp. 252, 255 (E.D.Pa.1968).