Hillin L. Arnold v. Rogers C. B. Morton, the Secretary of Interior of the United States

DUNIWAY, Circuit Judge

(dissenting):

I dissent. I have considerable doubt about the construction given to Executive Order No. 3797-A in Part II of Judge Sneed’s opinion. That construction appears to me to be unnecessarily technical and inconsistent with the purpose of establishing Pet. 4. We were told by the Supreme Court, shortly after Pet. 4 was created, that “it has been and is the policy of the United States to maintain a great naval petroleum reserve in the ground.” Pan American Pe *1107 troleum & Transport Co. v. United States, 1927, 273 U.S. (1 Pet.) 456, 501 , 47 S.Ct. 416, 422 , 71 L.Ed. 734 . See also Mammoth Oil Co. v. United States, 1927, 275 U.S. (2 Pet.) 13, 53 , 48 S.Ct. 1 , 72 L.Ed. 137 . Lacunae within the reserve, not subject to the authority of the Secretary of the Navy, seem to me to imperil that policy. I incline to the view that Executive Order No. 3797-A can be, and should be, read as the Secretary reads it in this case.

But even if Judge Sneed’s construction of the Order be accepted, it does not follow that the decision appealed from is wrong. I would hold that the Congress has reserved, as part of Pet. 4, all of those public lands inside its boundaries which, at the date of Executive Order No. 3797 — A, were “covered by valid entry, lease or application,” effective immediately upon their ceasing to be so covered.

I begin with the Naval Appropriation Act of June 4, 1920, 41 Stat. 812 , Ch. 228, which provides, inter alia:

That the Secretary of the Navy is directed to take possession of all properties within the naval petroleum reserves as are or may become subject to the control and use by the United States for naval purposes, and on which there are are no pending claims or applications for permits or leases under the provisions of [the Mineral Leasing Act] or pending applications for United States patent under any law; .

When this statute was enacted, Pet. 4 had not been created, and it can be argued that the statute did not apply to Pet. 4 when it was later created, on two grounds. One is that, as a rider to an appropriation act, it was not a permanent enactment. The other is that the reference to “the naval petroleum reserves” can only be to Pets. 1, 2 and 3, the only reserves which were then in existence. I would reject both arguments. First, the Congress evidently regarded this part of the Act as permanent legislation; it became Section 524 of Title 34 of the United States Code when the Code was enacted by the Sixty-ninth Congress in 1926. Act of June 30, 1926 — Public No. 440, Ch. 712. See 1-7 U.S.C., 1970 ed. p. LXIX. It has been retained and several times amended ever since. Second, the language of the statute speaks to the future: “all properties within the naval petroleum reserves as are or may become subject to the control and use by the United States for naval purposes.” (emphasis added) The lands here in question did, after Pet. 4 was created, “become subject to the control and use by the United States.” I would read the Act as if there were a comma after “United States.” Thus the phrase “for naval purposes” refers to the purpose for which “the Secretary of the Navy is directed to take possession;” it is not a limitation upon the Act’s definition of the lands of which he is to take possession. The only such limitation is the word “within,” and I would read that to mean “within the boundaries of,” not “which are a part of.” How else is “within” to be reconciled with “as are or may become”?

Even if I am wrong about the applicability of the Act of June 4, 1920, to Pet. 4, later enactments seem to me to make it applicable. By the Act of June 30, 1938, 52 Stat. 1252 , Ch. 851, the Congress amended the pertinent part of the Appropriations Act of 1920 “so as to read as follows:” The amended Act, thus adopted, is, so far as pertinent, the same language quoted above, except in one key respect; it eliminates the language “and on which there are no pending claims or applications for permits or leases under [the Mineral Leasing Act] or pending applications for United States patent under any law.” The omission of this language is to me highly significant. Until the 1938 amendment, it might be argued that the lands here in question fell outside the authority conferred upon the Secretary by the Act of 1920 because, when Pet. 4 was created, they were lands on which there were “pending claims or applications for permits or leases ... or pending applications for United States patent . . . ” and so not a part of the reserve. After the *1108 19S8 amendment, which eliminates this exception, the language “which are or may become subject to the control and use by the United States” fits the lands involved in this case precisely, and there is no longer any statutory language upon which a contrary argument can be built. To me, the 1938 amendment makes it clear that “within” means “within the boundaries of,” and does not limit the jurisdiction of the Secretary of the Navy to those lands only that, under Judge Sneed’s construction of Executive Order No. 3797-A, were originally set aside as part of the Pet. 4 reserve.

In 1944, the Act of 1920, as embodied in 34 U.S.C. § 524 , and amended in 1938, was again amended. The amending Act (Act of June 17, 1944, 58 Stat. 280 , Ch. 262) contains language identical to that of the 1938 Act, so far as pertinent here. Again, in 1956, the statute was amended by P.L. 1028, 84th Cong. Ch. 1971, 2d Sess., August 10, 1956, 70A Stat., which enacted a new Title 10 U.S.Code. Former Title 34 § 524 was repealed (70A Stat. 603), and 10 U.S.C. § 7421 was enacted (70A Stat. 457-8). The same language was reenacted, but with one change, which I find significant. The phrase “within the naval petroleum reserves” was amended to read “inside the naval petroleum reserves.” 1 Presumably, the change from “within” to “inside” was intentional. I think that it was to make it even more clear that Congress was referring to lands inside the boundaries of the reserves, not limited, if there had previously been such a limitation (which, as I have explained, I do not believe) to those public lands not impliedly excluded from the reserve by Executive Order No. 3797-A. It does not comport with the statute to say that the lands thus excluded never thereafter came to be “within” the reserve, or “inside” the reserve, even though they had long since ceased to be lands of the type impliedly excluded by the Executive Order. Thus the lands here in question are and have long been under the jurisdiction of the Secretary of the Navy.

In my opinion, the Interior Board of Land Appeals correctly held that the Secretary of the Interior has no jurisdiction of the lands in question.

I would affirm.

. The statute was again amended in 1962 (P.L. 87-796, 76 Stat. 904 ) without material change. The word “inside" was retained.