# Petition — Andrus v. Utah > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0100%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 446 U.S. 500 ## Text | Gourt, U. &/ QIQGED ABR 15 i979 78-1522 , JR., CLERK Iu the Supreme Court of the Wuited States OCTOBER TERM, 1978 CEcIL D. ANDRUS, SECRETARY OF THE INTERIOR, PETITIONER UV. STATE OF UTAH PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT WADE H. MCCREE, JR. Solicitor General JAMES W. MOORMAN Assistant Attorney General Louis F. CLAIBORNE Assistant to the Solicitor General RAYMOND N. ZAGONE CARL STRASS Attorneys Department of Justice Washington, D.C. 205380 | Page F ER ER ae 1 OER, 5 2 dia nassnetnhenensinahesuoibe 2 Sentutes involved ........................... 1a EAC 2 SRE EE i SOs Oe 3 Reasons for granting the writ -....................... 9 ERLE a 25 SA SSO a la oa chaiednptarncinns 10a i coeceeamanminnsoninasi 54a EELS ESAT et I soe RET ONE 80a ESR ECR LS ee Se 8la CITATIONS Cases: Andrus v. Charlestone Stone Products RN setae 11 Board of Governors v. First Lincolnwood Corp., No. 77-832 (Dec. 11, 1978)........ 20 Boothe v. Hickel, 347 F. Supp. 1278, aff’d sub nom. Bronken v. Morton, 473 F.2d 790, cert. denied, 414 U.S. 828 —.......... 21 Finch v. United States, 387 F.2d 13, cert. denied, 390 U.S. 1012 2.000000... 21 Heydenfeldt v. Daney Gold and Silver Mining Co., 93 U.S. 684 .......................- 13 Layman v. Ellis, 52 Interior Dec. 714...... 11 Il Ill Cases—Continued Page ; National Ass’n of Regional Councils v. Statutes and rule—Continued Page oo ee LE A EF ee 7 Act of August 27, 1958, Pub. L. No. 85- NLRB v. Bell Aerospace Co., 416 U.S. Reg Pe I I ibechcpaienesiicinsdatneccininie 18 SEATS eR ee OnNe rome eee AOD OT 20 . .C. 852 (a) (1)........ 4 Payne v. Central Pac. Ry. Co., 255 U.S. yee Se en FANS TT) SECA REIN eases Ee I te OUR 15 Act of Sept. 4, 1960, Pub. L. No. 86-786, Pallin v. United States, 496 F.2d 27........ 21 Ce OU II asians aacnnnrsertemeeinpenene 19 Rosado v. Wyman, 397 U.S. 397 ...........--- 20 Federal Land Policy and Management Saxbe v. Bustos, 419 U.S. 65 .................... 16, 20 Act of 1976, Pub. L. No. 94-579, 90 State of Arizona, 55 Interior Dec. 249... 16 i Nha eck oe en a 16 State of Arizona, 59 Interior Dec. 317.... 16 Section 701(c), 90 Stat. 2786 _....... 16 State of California, 59 Interior Dec. 451.. 16 Section 704(a), 90 Stat. 2792 16 State of California, 67 Interior Dec. 85.... 16 : ; State of Utah, 71 Interior Dec. 392 ........ 16 Mineral Leasing Act of 1920, 30 U.S.C. REANALYSIS n eT 7 State of Utah v. Work, 6 F.2d 675, aff’d on independent grounds, 273 U.S. 649.. 15 Train v. Colorado Pub. Int. Research I, Ne ei mcccsccccatnrctineenen 20 Udall v. Tallman, 380 U.S. 1 2202-2... 20 United States v. MacCollom, 426 U.S. yp BREE tee aA ane naa OS eT RR Dee we 7 United States v. Morrison, 240 U.S. 192.. 13 United States v. Sweet, 245 U.S. 563...... 3 United States v. Wyoming, 331 U.S. 440.. 18, 15 Wyoming v. United States, 255 U.S. 489.. 15 Statutes and rule: Act of May 3, 1902, ch. 688, Section 2, 32 Stat. 189, 48 U.S.C. 858 .................. 4 Act of January 25, 1927, ch. 57, 44 Stat. I oe eee aL 3 Act of June 26, 1936, ch. 842, Section 2, . ee ia MP eciingeadeleseclind tcatticate tind 17, 8a National Environmental Policy Act, Sec- tion 102(2)(C), 42 U.S.C. 48382(2) EERE ENN EES Ao AAA RE 7 Pickett Act of June 25, 1910, ch. 421, 43 if tome e.g he. | acer eenenruenen 15 Taylor Grazing Act of June 28, 1934, ch. 865, 48 Stat. 1269, 48 U.S.C. 315 et I eae iads ic etisalat anata agtlada units 17 Section 1, 43 U.S.C. 315 .....000....2.... 5,17 Section 7, 43 U.S.C. 315f ....2, 3, 6, 8, 9, 17, 19, 20, 21, 22, 8a Utah Enabling Act of July 16, 1894, ch. 138, 28 Stat. 107 et seq.: pecuon & 33 Sint. 197 ..................... 2 Section 6, 28 Stat. 109 _.......... 2,3, 4, 14, la R.S. 2275, 48 U.S.C. 851 ........ 2, 4, 18, 20, 22, 2a R.S. 2276, 43 U.S.C. 852 ....2, 4, 8, 18, 20, 22, 3a R.S. 2276, 43 U.S.C. (1952 ed.) 852........ 4 IV Statutes and rule—Continued Page R.S. 2276, 43 U.S.C. 862(a) .................... 14, 3a R.S. 2276, 43 U.S.C. 852(d) (1) .............. 14, 7a 43 C.F.R. 2400-3(a), 2450.1, 2621.2(a).. 18 Miscellaneous: Executive Order No. 6910, 54 Interior Dee. 539 (1986) ck 12, 15, 17 8 Fed. Reg. 7284 (1948) .......................... 18 38 Fed. Reg. 33186 (1973) ...................... 5 39 Fed. Reg. 7475 (1974) .................-.....- 5 39 Fed. Reg. 11208 (1974) ...........0002..... 5 P. Gates, History of Public Land Law Development (WOGBF iuiciacicteeeces 3 Oil Shale Leasing: Hearings on S. 2418 Before the Senate Subcomm. on Min- erals, Materials and Fuels, 94th Cong., 2d Seas. (8906). 2c 24 H.R. Rep. No. 2110, 86th Cong., 2d Sess. C2OGD ) nese 19 H.R. Rep. No. 2347, 85th Cong., 2d Sess. (1968) —_...sscc 19 42 Op. ATT’y. GEN. 173 (1968) ................ 16 S. Rep. No. 1735, 85th Cong., 2d Sess. (19GB) a c.nccnssuenn ee 19 Solicitor’s Opinion of February 8, 1935, 55 Interior Dee. BG ccccsccieniee 16 Iu the Supreme Court of the United States OCTOBER TERM, 1978 No. CeciIL D. ANDRUS, SECRETARY OF THE INTERIOR, PETITIONER Vv. STATE OF UTAH PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT The Solicitor General, on behalf of the Secretary of the Interior, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Tenth Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra) is reported at 586 F.2d 756. The opinion of the dis- trict court (App. C, infra) is unreported. (1) 2 JURISDICTION The judgment of the court of appeals (App. D, infra) was entered on August 8, 1978. A petition for rehearing was denied on December 6, 1978 (App. E, infra). On February 27, 1979, Mr. Justice White extended the time within which to file a petition for a writ of certiorari to and including April 5, 1979. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether public lands withdrawn from all forms of private appropriation and placed within a federal grazing district may be selected by a State in lieu of lost school-grant lands without first being classified as available for that purpose by the Secretary of the Interior pursuant to his discretionary authority under Section 7 of the Taylor Grazing Act. 2. Whether the Secretary, in the exercise of such discretion, may decline to classify as open to selection lands which are “grossly disparate” in value to the lost school lands. STATUTES INVOLVED The relevant statutes are: 1. Section 6 of the Utah Enabling Act of July 16, 1894, ch. 138, 28 Stat. 109; 2. Sections 2275 and 2276 of the Revised Statutes, as amended, 438 U.S.C. 851-852; and 3 3. Section 7 of the Taylor Grazing Act of June 28, 1934, ch. 865, 48 Stat. 1272, 48 U.S.C. 315f. These provisions are reproduced in the Appendix, infra, pages la-9a. STATEMENT 1. Like most western states, upon admission to the Union Utah received grants of public lands for school purposes. See P. Gates, History of Public Land Law Development 288-318 (1968). Utah was spe- cially favored, however, in being granted four sec- tions in every township, instead of the usual two. Utah Enabling Act of July 16, 1894, ch. 138, Section 6, 28 Stat. 109, imfra, App. 1a.’ Originally, school grants were valid only if, upon survey, the designated section was believed to be “non-mineral” in character. Utah claimed exemption from that rule, but lost. United States v. Sweet, 245 U.S. 563 (1918). A decade later, however, Congress changed the law to validate the earlier grants of sections “in place” not- withstanding the land was mineral. Act of January 25, 1927, ch. 57, 44 Stat. 1026-1027. In the par- ticular case of Utah, that was a very significant change which, indirectly, gives rise to the present case, in which Utah claims indemnity lands to re- place some 245 lost sections said to be mineral in character. * This no doubt accounts in part for the comparatively large number of acres still unselected by Utah before 1965. See note 9, infra. 4 Long before the school grants to Utah, Congress had provided for the case where such grants were lost to the State because the designated sections were fractional or because, before a survey was approved, the lands “in place” were appropriated by settlers, disposed of to others, or set aside as part of a fed- eral reservation. In all such eventualities, the State was entitled to select other “unappropriated” public lands of equal acreage. R.S. 2275-2276. The Utah Enabling Act itself made a like provision for selec- tion of lands in lieu of lost school grants. Act of July 16, 1894, Section 6, 28 Stat. 109.* These “in- demnity” or “lieu” selections could not, until 1958, include mineral land. E.g., 438 U.S.C. (1952 ed.) 852. But, in 1958, the ground rules were changed once more, and henceforth mineral land could be selected provided the original lost section was also mineral in character. Pub. L. No. 85-771, Section 2, 72 Stat. 928-929, now 48 U.S.C. 852(a) (1), infra, App. 3a-4a. The present claim is premised on the indemnity selection statute, as thus amended. 2. Between September 1965 and November 1971, the State of Utah selected 194 parcels of public land of the United States in Uintah County, Utah, com- prising 157,255.90 acres (Fdg. 4, App. 56a, infra). The tracts designated are 640-acre survey sections, 2 Notwithstanding the indemnity selection provision of the Enabling Act, Congress amended the general indemnity statute for Utah’s benefit by stipulating that references to sections 16 and 36 should, in the case of Utah, be read to embrace also sections 2 and 32. Act of May 3, 1902, ch. 683, section 2, 32 Stat. 189, 43 U.S.C. 853. 5 except for three large parcels each comprising about 11,000 or 12,000 acres. All the lands selected are located within federal grazing districts established pursuant to Section 1 of the Taylor Grazing Act of 1934, 43 U.S.C. 315 (Fdg. 12, App. 68a, infra). In- cluded within the 194 selected parcels are Tracts U-a and U-b, each 5,120 acres, which, since April 1974, are the subject of prototype oil-shale leases issued by the Secretary to third parties (Fdg. 5, App. 61a, infra).* As of May 1976, total leasing reve- nues from Tracts U-a and U-b amounted to $48,291,- 840. Jbid. Sums in excess of $72 million have now accumulated. All the remaining selections are said to be of mineral lands, chosen in lieu of an equal acreage of lost school land grants which the State claims were also mineral in character. The accuracy of these representations is still to be determined, but may be assumed for present purposes. In February 1974, the Secretary of the Interior made the following announcement in a letter to the Governor of Utah (R. 70): As you know, the Department of the Interior has not as yet acted upon the State’s applications [for the 194 parcels]. The principal question presented by the applications is whether pur- suant to Section 7 of the Taylor Grazing Act, 48 Stat. 1272 (1934), as amended, 43 U.S.C. § 315f (1972), the Department may refuse to * A description of the Interior Department’s prototype oil- shale leasing program was published. 88 Fed. Reg. 33186 (1973) ; 39 Fed. Reg. 7475 (1974) ; 39 Fed. Reg. 11208 (1974). 6 convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secre- tary of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect. | In the present case, although the land values are not precisely determined, it appears that the se- lections involve lands of grossly disparate values, within the meaning of the Department’s policy. While the Department is not yet prepared to adjudicate the State’s applications, I feel it is appropriate at this time to advise you that we will apply the above-mentioned policy in that adjudication. Two weeks later, the State filed the present suit against the Secretary. 3. The State’s complaint sought title to the 194 parcels selected or, alternatively, an order directing the Secretary to approve or disapprove the State’s selections without reference to any disparate values between the selected and “base” or lost lands. In due course, the parties entered into a stipulation iden- tifying the contested issues of law in the case: (a) whether the State’s selections could be effective un- less the identified lands were first classified by the Secretary, pursuant to Section 7 of the Taylor Graz- ing Act, as suitable for satisfaction of school in- demnity selection rights; and, if not, (b) whether, 7 in making the required classification, the Secretary may consider the “comparative values” of the se- lected lands and the lost sections; and (c) whether such a classification constitutes a “major Federal action” under Section 102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 4882(2)(C), with the possibility that an environmental impact statement would have to be prepared. Thereafter, both sides cross-moved for summary judgment.‘ On June 8, 1976, the district court issued its find- ings of fact, conclusions of law, and judgment (App. 54a-79a, infra). The Secretary was directed to com- plete a “ministerial, administrative adjudication” resulting in “a determination as to whether those selection lists [comprising the 194 selected parcels] are in factual compliance with the requirements of * In addition, the State sought an order requiring the Secre- tary to pay the oil-shale leasing receipts from Tracts U-a and U-b into the registry of the district court during the pend. icy of this case. In due course, the court entered orders to this effect, instructing its clerk to deposit equal portions of the impounded leasing receipts with four Salt Lake City banks, by them to be invested in 90-day Treasury bills. On appeal, those orders were affirmed. In our opinion, this action of the district court contravenes the provisions of Section 35 of the Mineral Leasing Act of 1920, 30 U.S.C. 191, which requires the Secretary of the Interior to deposit these receipts into the Treasury so that regular distributions of them may be made to particular recipients. We also believe the district court was without jurisdiction to impound these funds. United States v. MacCollom, 426 U.S. 317, 321 (1976); National Ass’n of Regional Councils v. Costle, 564 F.2d 583, 589-590 (D.C. Cir. 1977). Nevertheless, because the question does not appear to have recurring importance, we do not present it for review here. 8 43 U.S.C. 852, and to refrain from applying any measure of comparative or disparate value between the base lands and the selected lands * * *” (App. 77a, infra).° The district court further held that clas- sification under Section 7 of the Taylor Grazing Act was not required with respect to lands selected by the State pursuant to Section 852, and that the Sec- retary’s contrary regulations were “void.” Finally, the court concluded that the National Environmental Policy Act was inapplicable (Concl. 9, App. 74a, infra). On appeal by the Secretary, the Tenth Circuit af- firmed the district court’s judgment in its entirety. The court of appeals took the view that the school land grant statutes must be treated as “special acts completely separate and apart from all other public land grant enactments * * * and given special, inde- pendent treatment * * *” (App. 40a, infra). The court went on to stress that the “purpose was to cre- ate a binding permanent trust which would generate financial aid to support the public school systems of the ‘public land’ states” (App. 18a, infra), conclud- 5 The judgment originally provided that this administrative adjudication be completed no later than December 15, 1976. However, the district court later stayed this requirement pending appeal to the court of appeals. To date, neither court has entered any subsequent order setting any new deadline. * The impounded oil-shale leasing receipts from Tracts U-a and U-b would “be paid to the party entitled thereto pursuant to the further Order of this Court, when this litigation is fully and finally concluded on the merits” (App. 79a, infra). Until then, the district court’s management of the impounded leas- ing receipts was to continue. 9 ing that this “solemn bilateral agreement between the United States and the ‘Land Grant’ State of Utah” conferred upon Utah the “unqualified, un- ambiguous right * * * to select ‘in lieu’ school in- demnity lands which are ‘mineral in character’ for the specific school lands granted which are ‘min- eral in character’ but lost to the State’ (App. 48a, infra). The State’s right of selection was held to override the Secretary’s discretion under Section 7 of the Taylor Grazing Act to classify lands as open to selection. The primary conclusion was that Sec- tion 7 is inapplicable to the processing of state in- demnity selections (App. 39a, infra). Alternatively, the court held that, in this context, Section 7 classifi- cation is not discretionary and may not take into account the comparative values of “base” and se- lected lands (App. 49a, infra). REASONS FOR GRANTING THE PETITION The decision below effectively directs the Secretary of the Interior to approve the indemnity selections filed by the State of Utah—all apparently for min- eral lands, including some 10,000 acres presently leased under a prototype oil-shale exploration pro- gram—provided only three conditions are satisfied: (1) that the “lost” school grant sections (or “base” lands) were “mineral in character”; (2) that the “lieu” lands selected have not previously been dis- posed of to others or reserved for a specific purpose (such as an Indian or military reservation); and (3) that the total acreage of the lieu lands does not 10 exceed that of the lost lands. According to the court of appeals, once these bare prerequisites are met, the Secretary must issue a patent to the State, no matter how gross the disparity between the value of the lost lands and that of the indemnity lands selected in lieu, and no matter what other public reasons might argue against approval of the State’s selections. The court holds that the Secretary enjoys no discretion to with- hold approval of a selection because of gross disparity in value or on any other ground. The decision affects substantial acreage in several western States, and, if left undisturbed, will prove quite costly to the United States. It also threatens to have a severe disruptive effect on the management of the public domain. The ruling is without warrant in the relevant legislation. Moreover, it overturns half a century of consistent administrative practice, on which other States have relied. The decision is at odds with the congressional understanding, only re- cently expressed in unequivocal terms. And, finally, the result is wholly inconsistent with the underlying policy of the indemnity statutes to provide the States a rough equivalent for lost school sections, not an opportunity for a hugely profitable trade. 1. The practical consequences of this novel ruling are difficult to confine. The financial loss to the United States is very substantial. Lease revenues de- rived from the two oil-shale tracts selected by Utah already exceed $72 million. Even larger sums are presently being collected from lessees under the same program in Colorado, and that State presumably will 11 now be free to select those lands.’ There remain, in addition, more than half a million acres to be selected in the western States in lieu of lost school sections. If, in each case, the most valuable mineral or timber land can be chosen, without regard to the value of the lost acres, the total predictable disparity must amount to several hundreds of millions of dollars." Nor are monetary considerations necessarily the most important. The Department of the Interior has critical responsibilities for managing the public do- main in a consistent and rational way, accommodating the many aspects of the public interest involved. The development of new energy sources must be encour- aged, but without ignoring conservation needs or overriding recreational, scenic and other environ- mental values. The oil-shale leasing program, for ex- ample, is carefully tailored to respect these concerns. Plainly, the Department’s task cannot successfully be performed without a substantial degree of control over alienations from the public domain. That has been recognized at least since President Roosevelt’s ' The successful bidders on the two Colorado tracts already leased under the prototype oil-shale leasing program are committed to pay the United States, in addition to production royalties, some $328 million. The comparable total for the Utah tracts is in excess of $120 million. *The condition already noticed (supra, page 4) that mineral land can be selected only if the lost sections were likewise “mineral in character” is a very limited check on disparity, given the large variation in the value of the many deposits that qualify as “mineral.” See, e.g., Layman v. Ellis, 52 Interior Dec. 714 (1929) ; cf. Andrus v. Charlestone Stone Products Co., 486 U.S. 604 (1978). 12 general withdrawal order of 1934. Exec. Order No. 6910, 54 Interior Dec. 589 (1934). The present deci- sion, exempting State indemnity selections from the Secretary’s discretionary classification authority, threatens the best management of the public domain. Of course, the right of the States to select indemnity lands must be respected. But it is entirely possible to satisfy those claims without depriving the Secre- tary of all authority to take into account the public interest for which he is responsible. 2. The present decision, it is true, is not in di- rect conflict with the ruling of any other court. This is, we suggest, because it has so long and so generally been accepted that the relevant statutes afford the Secretary of the Interior a substantial measure of discretion in approving State indemnity selections. But it does not follow that the ruling below is a “sport” in the law that may be left to be gradually eroded by contrary decisions. As it happens, all of the acreage remaining to be selected in lieu of original school grants lies within the boundaries of only two circuits. For this reason, and to avoid unequal treatment, the Secretary may deem himself required to follow the rule of the present case in both the Ninth and Tenth Circuits if the judgment below becomes final. Accordingly, we cannot await the development of a conflict of decisions. As a practical matter, the °The States with outstanding school indemnity selection rights and the approximate acreage involved are: Arizona, 170,000 acres; California, 180,000 acres; Colorado, 17,000 acres; Idaho, 27,000 acres; Montana, 22,900 acres; Utah, 225,000 acres; and Wyoming, 1,100 acres. eS er a a a ee ee ee ee ee tenn nner nt am 13 occasion for asking this Court’s review is now or never. 3. As we have said, the decision below is wholly inconsistent with the long-settled administrative prac- tice, expressly endorsed by the Congress. Nor do the relevant statutes compel disregard of the established rule. On the contrary, we read the critical provisions as confirming the Secretary’s discretion. (a) The provisions that grant to States the right to make indemnity selections of land in lieu of lost school sections are today codified at 43 U.S.C. 851- 852 (infra, App. 2a). The court of appeals thought those provisions dispositive. But they are, at best, am- biguous as to whether lands within a Taylor Grazing Act district (as all Utah’s selections concededly are) remain available for selection without further action by the Secretary of the Interior. Section 851 announces that the right to indemnity selection arises whenever the school section originally granted has been lost to the State by private settle- ment, by other disposition from the United States, or because “before title could pass to the State” the lands have been “included within such Indian, mili- tary, or other reservation” (emphasis added). And, as one would expect, it is provided that “such selec- 1 Tt has long been settled that the original grants of num- bered sections do not take effect until approval of a final survey and that an intervening settlement, disposal or reser- vation of the lands defeats the grant “in place.” Heydenfeldt v. Daney Gold and Silver Mining Co., 98 U.S. 634 (1876); United States v. Morrison, 240 U.S. 192 (1916) ; United States v. Wyoming, 331 U.S. 440 (1947). 14 tions may not be made within the boundaries of said reservation.” The Utah Enabling Act itself contains comparable provisions. Act of July 16, 1894, ch. 138, Section 6, 28 Stat. 109, infra, App. la.” Thus, when Section 852(a) says that indemnity selections may be made from “any unappropriated * * * public lands within the State,” we know that lands “reserved” by the United States are deemed “appropriated” and therefore unavailable for selection.” And it is plain that any federal “reservation” that would defeat an original school grant will likewise prevent indemnity selection of such withdrawn lands. What is not wholly clear on the face of these provisions, however, is whether all “withdrawals” remove lands from the se- lection pool. Is it only a withdrawal for a specific purpose, such as creation of a national park, that renders the lands unavailable for selection? * 11 Indeed, the Enabling Act may be more explicit in apply- ing the same rule in all cases, including temporary with- drawals. It first exempts from both the original grant and indemnity selection “permanent reservations for national purposes,” and then adds: “nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this Act until the reservation shall have been extinguished and such lands be restored to and become a part of the public domain” (emphasis added). Infra, App. la. 12 This is now indirectly confirmed in Section 852(d) (1), which provides that lands as to which only the mineral rights have been “withdrawn” will be deemed “unappropriated” for the purposes of the indemnity selection statute. Infra, App. Ta. 13 Notwithstanding the contrary implications in the opinion of the court of appeals, it is clear that lands which are law- cent edmaiiies — Miata — 15 (b) The answer to the question just posed was as- sumed in the negative as early as Wyoming v. United States, 255 U.S. 489 (1921), the case so much relied upon by the court below. What was there at issue was the effectiveness of a “temporary” withdrawal of lands as potentially mineral under the Pickett Act of June 25, 1910 (43 U.S.C. (1970 ed.) 141). The State prevailed, not because such a withdrawal was insufficient, but only because the indemnity selections had been filed well before the withdrawal. See 255 U.S. at 495, 508-509. See, also, Payne v. Central Pac. Ry. Co., 255 U.S. 228, 234, 236, 237-238 (1921). If any doubt remained, it was put to rest by United States v. Wyoming, 331 U.S. 440 (1947), where a Pickett Act withdrawal of lands, without the creation of any special-purpose reservation, was held to defeat an original school grant. Jd. at 442 and n.4, 444, 456. See, also, State of Utah v. Work, 6 F.2d 675, aff’d on independent grounds, 273 U.S. 649 (1926). That rule governs here since, as we have seen, any with- drawal that prevents an Enabling Act grant from attaching likewise (perhaps a fortiori) removes the lands from indemnity selection. This brings us to the general withdrawal of Novem- ber 1934. By Executive Order No. 6910, the Presi- fully appropriated or included in a special reservation at any time before the indemnity selection is made and filed are thereby removed from the selection pool. See Wyoming v. United States, 255 U.S. 489 (1921). Accordingly, in this case, any qualifying withdrawal made before 1965 would render the affected lands unavailable for selection, absent a release of such lands by reclassification. 16 dent, expressly invoking the Pickett Act and following its terms verbatim, withdrew and “reserved for classi- fication” under the recently enacted Taylor Grazing Act all “vacant, unreserved and unappropriated pub- lic land” in certain States, including Utah. 54 In- terior Dec. at 540. Although labelled “temporary,” the order remains in force today.“ The effect of this action—as the court of appeals itself at one point seems to agree (Pet. App. 16a)“—would seem to have been to prevent any further indemnity selec- tions except as land was “reclassified” for that pur- pose. That is what has always been understood. See Solicitor’s Opinion of February 8, 1935, 55 Interior Dec. 205, 210-211; State of Arizona, 55 Interior Dec. 249, 253 (1935); State of Arizona, 59 Interior Dec. 317, 321-322 (1946) ; State of California, 59 Interior Dec. 451 (1947) ; State of California, 67 Interior Dec. 85 (1960); State of Utah, 71 Interior Dec. 392 (1964). See, also, 42 Op. ATT’y. GEN. 173, 180-181 (1963). Indeed, the withdrawal was deemed so effec- tive that, absent remedial legislation, the Secretary found no authority to release any part of the affected lands for State indemnity selection. See 59 Interior Dec. at 321. 14 Although the Pickett Act was repealed by Section 704 (a) of the Federal Land Policy and Management Act of 1976, Pub. L. No. 94-579, 90 Stat. 2792, that statute expressly provides that previous Pickett Act withdrawals shall remain in “full force and effect until modified.” Section 701(c), 90 Stat. 2786. 18 Later, however, the court holds that “nothing in [this order] can be construed to apply to state school indemnity selections.” App. 51a, infra. 17 (c) The Taylor Grazing Act of June 28, 1934, ch. 865, 48 Stat. 1269 (now 43 U.S.C. 315 et seq.), au- thorized the Secretary of the Interior to place in grazing districts “pending its final disposal” any public land not already dedicated to specified pur- poses. Section 1, 43 U.S.C. 315. Much of the land withdrawn by Executive Order 6910 a few months later was ultimately included in grazing districts, and this evidently happened in the case of Utah. As already noted, however, there was no mechanism for unlocking such withdrawn lands, except for home- steading. See Section 7, 48 Stat. 1272. That problem was solved two years later by an amendment to Sec- tion 7. Act of June 26, 1986, ch. 842, Section 2, 49 Stat. 1976, 43 U.S.C. 315f, infra, App. 8a. This criti- cal enactment provided, inter alia: That the Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (num- bered 6910) * * *, or within a grazing district, which are * * * proper for acquisition in satis- faction of any outstanding lieu * * * rights or land grant, and to open such lands to * * * selection * * * for disposal in accordance with such classification under applicable public-land laws, * * *. Such lands shall not be subject to - disposition * * * until after the same have been classified and opened to entry: * * * Pro- vided, that upon the application of any applicant qualified to make * * * selection * * * under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such 18 application, if allowed by the Secretary of the Interior, shall entitle the applicant to a prefer- ence right to * * * select * * * such lands if opened to entry as herein provided. On its face this amendment embraces State lieu selection rights, and that is how it has been admin- istered. States applying for indemnity lands were re- quired to file a petition for discretionary classification under this Section. This is reflected in regulations published in 1943 “to show the change in procedure,” 8 Fed. Reg. 7284 (1948), and continued to this day. 43 C.F.R. 2400-3(a), 2450.1, 2621.2(a). Indeed, if Section 7 of the Taylor Grazing Act were inappli- cable, it is difficult to appreciate under what author- ity the Secretary can approve a State selection of lands still withdrawn. (d) There seems to be some suggestion in the opinion of the court of appeals that, whatever the Secretary’s discretionary authority may have been before, it was removed by recent amendments to the indemnity selection statutes. App. 16a, infra. Em- phasis is placed on the retention of the acre-for-acre formula, with no mention of comparable value, except only that selection of mineral land is conditioned on the lost land also being “mineral in character.” See 43 U.S.C. 852(a) (1), as added by the Act of August 27, 1958, Pub. L. No. 85-771, 72 Stat. 928, infra, App. 4a. The fact is, however, that nothing in the amend- ments to Section 852 releases withdrawn land (as opposed to minerals separately reserved) for indem- nity selection or affects the Secretary’s classification 19 discretion with respect to such lands under Section 7 of the Taylor Grazing Act. On the contrary, the legis- lative history of both the 1958 and the 1960 amend- ments to the indemnity selection statutes makes it quite clear that nothing has changed in these respects. Thus, in 1958, the report of the relevant House Com- mittee (H.R. Rep. No. 2347, 85th Cong., 2d Sess. 2 (1958) ) stated: The Department of the Interior noted its as- sumption “that nothing in this bill is intended to affect the rights or duties of States under other laws” and, in particular, “that no change is intended to be made in section 7 of the Taylor Grazing Act, as amended (48 U.S.C., sec. 315f).” The Committee on Interior and Insular Affairs concurs.” The reference to Section 7 of the Taylor Grazing Act in connection with a bill dealing only with State indemnity selections is not unequivocal. But any am- biguity was removed in 1960 when, considering a further amendment of Section 851 (Act of Sept. 4, 1960, Pub. L. No. 86-786, 74 Stat. 1024), the same Committee unequivocally said (H.R. Rep. No. 2110, 86th Cong., 2d Sess. 2 (1960) ): * * * [A] selection by a State can be consum- mated only if the land selected is classified by the Secretary of the Interior as proper for ac- quisition in satisfaction of an outstanding lieu 1° See, also, S. Rep. No. 1735, 85th Cong., 2d Sess. 2, 4, 11 (1958), which incorporates Interior Department letters to the same effect. 20 right, as provided in section 7 of the Taylor Grazing Act (43 U.S.C., sec. 315f). * * * * * * * * The prohibition against the selection of producing and producible lands subject to lease or permit would be continued. So also would the Taylor Grazing Act provisions referred to above. (e) We need go no further. A fair reading of the relevant texts at least permits the construction that Sections 851 and 852 at all times prevented the selec- tion by States in lieu of their lost school sections of lands withdrawn for any purpose, however general, until and unless the Secretary of the Interior, pur- suant to his discretionary authority under the Taylor Grazing Act, agreed to classify them as available for such selection. That has been the undeviating admin- istrative practice for almost half a century, and, as such, entitled to special weight. Udall v. Tallman, 380 U.S. 1, 19 (1965). And, finally, Congress, having “re- visited the Act * * *[,] left the practice untouched,” indeed expressly endorsed it. See Saxbe v. Bustos, 419 U.S. 65, 74 (1974); Board of Governors v. First Lincolnwood Corp., No. 77-832 (Dec. 11, 1978), slip op. 14. See also Train v. Colorado Pub. Int. Research Group, 426 U.S. 1, 23-24 (1976); NLRB v. Bell Aero- space Co., 416 U.S. 267, 275 (1974); Rosado v. Wy- man, 397 U.S. 397, 415 (1970). 4. The remaining question is whether the Secre- tary of the Interior has permissibly exercised his discretion under Section 7 of the Taylor Grazing Act by declining to classify as available for indemnity 21 selection lands of grossly disparate value to the lost school sections. (a) On the face of the statute, the Secretary would seem to be wholly free to refuse to classify particular land in any particular way. Presumably, the words “in his discretion” at the head of Section 7 qualify all that follows. Thus, in cases not involving State indemnity selections, the courts have recognized a broad discretion in the Secretary. E.g., Finch v. United States, 387 F.2d 13 (10th Cir. 1967), cert. denied, 390 U.S. 1012 (1968); Pallin v. United States, 496 F.2d 27, 34 (9th Cir. 1974). And one court has expressly held that “the market value of the lands being classified” properly may be consid- ered as part of the “broad powers and manifold op- tions” of Section 7 discretion. Boothe v. Hickel, 347 F. Supp. 1278, 1276 (D. Nev. 1969), aff’d sub nom. Bronken v. Morton, 473 F.2d 790, 797-798 (9th Cir.), cert. denied, 414 U.S. 828 (1973). It is not obvious why that approach is not equally applicable here. We may assume that the Secretary would be abusing his discretion if he refused to classify as available sufficient lands to satisfy out- standing State indemnity selections. So, also, he might be faulted if he approved selections only when the lieu lands were less valuable than the lost sec- tions. But the Secretary cannot be charged with any such questionable action. The rule he has adopted is simply to insist on rough equivalence, permitting the States to gain a modest advantage but not an un- conscionable one. Nor is there any suggestion that 22 the formula prevents the States with outstanding selection rights from fully satisfying them and en- joying a meaningful choice in exercising those rights. Finally, the Secretary is not rewriting the indem- nity selection statutes in imposing a value criterion. Of course, the “acre-for-acre” and “mineral-for- mineral” provisions of Sections 851 and 852 must be observed, once that statute takes hold. But, before Sections 851 and 852 can apply at all, withdrawn land must be unlocked, and, in making that classifi- cation decision, the Secretary must exercise the dis- cretion expressly conferred upon him by Section 7 of the Taylor Grazing Act. Plainly, unless classifi- cation authority is entirely meaningless, the Secre- tary cannot be bound to approve every selection that satisfies Sections 851 and 852. He might reasonably apply public interest criteria other than, or in addi- tion to, monetary value equivalence. But there can be no proper complaint about the modest rule against gross disparity in value at issue here. (b) Again, the rule applied to Utah is not a novel deviation from previous practice. At least since 1965, the Department of the Interior has consistently fol- lowed a policy of refusing to classify as available for indemnity selection lands of “grossly disparate value” to the lost acreage. Nor is this a vague, undefined standard. The precise formula now employed was articulated in January 1967 (R. 50): * * * If the estimated value of the “selected lands” is more than $100 per acre, then the values will not be considered grossly disparate 23 if the value of the “selected lands” exceeds the .value of the “base lands” by less than $100 per acre or by 25% of the value of the “base land,” whichever is greater.” And, here also, the Department’s practice has won congressional approval. In January 1974, Senator Jackson, Chairman of the Senate Committee on In- terior and Insular Affairs, joined by Senator Metcalf, the Chairman of the Subcommittee on Minerals, Ma- terials and Fuels, wrote the Secretary of the Interior concerning the prototype oil shale leasing program and its relation to State indemnity selections. On behalf of the Committee, the Senators expressed con- cern about the very applications involved in this case and endorsed the Department’s policy of barring se- lections of grossly disparate value: There is one further complicating factor with respect to the Department’s [oil shale leasing] program. That is the pending State indemnity selection applications filed by the State of Utah, for 157,000 acres of Federal land in Utah. We understand that these selections include the two Utah tracts the Department intends to lease as part of the prototype program. We are well aware of the longstanding con- troversy over selection of “mineral-rich” lands by the States in satisfaction of their statehood 7 It should be noted, however, that the formula does not exclude the exercise of discretion. The memorandum goes on to provide: If such estimate exceeds these limits, the case will be sub- mitted to Washington for evaluation of all the circum- stances. 24 grants. We agree with the policy adopted by the Department in 1965 that State selections should not be allowed where there is a “gross disparity” of value between the lost lands and the selected lands. If you intend to change that policy, we request that you notify this Committee before opening any “mineral-rich” lands to selection. In any event, it seems to us that the Depart- ment should decide the state selection question before going ahead with the prototype program. It is our understanding that if the State of Utah takes title to these oil shale lands, that it intends to offer them for development. Any large scale development on these lands would appear totally inconsistent with the objectives of the Department’s prototype program.” (c) After the opening of “mineral-rich” lands to State selection in 1958, a proper concern for the national public interest prompted the Department of the Interior to look to comparable values in consider- ing State indemnity selections. This is no grudging implementation of the congressional decision. Rather, insistence on rough value equivalence in lieu selec- tions carries out the legislative purpose to offer a fair replacement for lost grants, not an opportunity for profiteering. We may surmise that Congress left it to the Secretary to prevent abuses within the very wide limits left by the acre-for-acre and mineral-for- mineral guidelines. Certainly, he was acting well 18 Oil Shale Leasing: Hearings on S. 2413 Before the Senate Subcomm. on Minerals, Materials and Fuels, 94th Cong., 2d Sess. 26 (1976). 25 within the ambit of his statutory discretion. In our submission, the courts below misread the controlling provisions and failed to accord the weight due to well- established administrative practice, known to the Congress and expressly endorsed. CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted. WADE H. MCCREE, JR. Solicitor General JAMES W. MOORMAN Assistant Attorney General LouIs F. CLAIBORNE Assistant to the Solicitor General RAYMOND N. ZAGONE CARL STRASS Attorneys APRIL 1979 la APPENDIX A STATUTES INVOLVED 1. Utah Enabling Act i Section 6 of the Utah Enabling Act of July 16, 1894, ch. 188, 28 Stat. 109: That upon the admission of said State [of Utah] into the Union, sections numbered two, sixteen, thirty-two, and thirty-six in every town- ship of said proposed State, and where such sec- tions or any parts thereof have ben sold or other- wise disposed of by or under the authority of any Act of Congress other lands equivalent there- to, in legal subdivisions of not less than one quarter section and as contiguous as may be to the section in lieu of which the same is taken, are hereby granted to said State for the cupport of common schools, such indemnity lands to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior: Provided, That the second, sixteenth, thirty-second, and thirty-sixth sections embraced in permanent reservations for national purposes shall not, at any time, be sub- ject to the grants nor to the indemnity provisions of this Act, nor shall any lands embraced in Indian, military, or other reservations of any character be subject to the grants or to the indemnity provisions of this Act until the reser- 2a vation shall have been extinguished and such lands be restored to and become a part of the public domain. 2. School Indemnity Selection Statutes Sections 2275 and 2276 of the Revised Statutes, as restated and revised by Sections 1 and 2 of Act of August 27, 1958, Pub. L. No. 85-771, 72 Stat. 928- 929, and as thereafter amended, 43 U.S.C. 851-852: SEC. 2275. Where settlements with a view to preemption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections or either of them have been or shall be granted, resefved, or pledged for the use of schools or colleges in the State in which they lie, other lands of equal acreage are here- by appropriated and granted, and may be se- lected, in accordance with the provisions of sec- tion 2276 of the Revised Statutes [43 U.S.C. 852], by said State, in lieu of such as may be thus taken by preemption or homestead settlers. And other lands of equal acreage are also here- by appropriated and granted and may be se- lected, in accordance with the provisions of sec- tion 2276 of the Revised Statutes, by said State where sections sixteen or thirty-six are, before title could pass to the State, included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States: Provided, That the selection of any lands under this section in 3a lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. And other lands of equal acreage are also hereby appropriated and granted, and may be selected, in accordance with the provisions of section 2276 of the Re- vised Statutes, by said State to compensate de- ficiencies for school purposes, where sections six- teen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the num- ber of townships that will be included within such Indian, military, or other reservations, and thereupon the State shall be entitled to select indemnity lands to the extent of section for sec- tion in lieu of sections therein which have been or shall be granted, reserved, or pledged; but such selections may not be made within the boundaries of said reservation: Provided, how- ever, That nothing herein contained shall pre- vent any State from awaiting the extinguish- ment of any such military, Indian, or other reservation and the restoration of the lands there- in embraced to the public domain and then tak- ing the sections sixteen and thirty-six in place therein. SEC. 2276. (a) The lands appropriated by section 2275 of the Revised Statutes [43 U.S.C. 851], shall be selected from any unappropriated, surveyed or unsurveyed public lands within the 4a 5a however, That after approval of the selec- tion the Secretary of the Interior shall de- State where such losses or deficiencies occur sub- ject to the following restrictions: (1) No lands mineral in character may be selected by a State except to the extent that the selection is being made as indemnity for mineral lands lost to the State because of appropriation before title could pass to the State; (2) No lands on a known geologic struc- ture of a producing oil or gas field may be selected except to the extent that the selec- tion is being made as indemnity for lands on such a structure lost to the State because of appropriation before title could pass to the State; and (3) Land subject to a mineral lease or permit may be selected if none of the land subject to that lease or permit is in a pro- ducing or producible status, subject, how- ever, to the restrictions and conditions of the preceding and following paragraphs of this subsection. (4) If a selection is consummated as to a portion but not all of the lands subject to any mineral lease or permit, then, as to such portion and for so long only as such lease or permit or any lease issued pursuant to such permit shall remain in effect, there shall be automatically reserved to the United States the mineral or minerals for which the lease or permit was issued, together with such further rights as may be necessary for the full and complete enjoyment of all rights, privileges and benefits under or with re- spect to the lease or permit: Provided, termine what portion of any rents and royalties accruing thereafter which may be paid under the lease or permit is properly applicable to that portion of the land sub- ject to the lease or permit selected by the State, the portion applicable being deter- mined by applying to the sum of the rents and royalties the same ratio as that exist- ing between the acreage selected by the State and the total acreage subject to the lease or permit; of the portion applicable to the selected land 90 per centum shall be paid to the State by the United States annually and 10 per centum shall be deposited in the Treasury of the United States as miscel- laneous receipts. (5) If a selection is consummated as to all of the lands subject to any mineral lease or permit or if, where the selecting State has previously acquired title to a portion of the lands subject to a mineral lease or per- mit, a selection is consummated as to all of the remaining lands subject to that lease or permit, then and upon condition that the United States shall retain all rents and royalties theretofore paid and that the lessee or permittee shall have and may enjoy under and with respect to that lease or permit all the rights, privileges, and benefits which he would have had or might have enjoyed had the selection not been made and approved the State shall succeed to all the rights of the United States under the lease or permit 6a as to the mineral or minerals covered there- by, subject, however, to all obligations of the United States under and with respect to that lease or permit. (b) Where the selections are to compensate for deficiencies of school lands in fractional townships, such selections shall be made in ac- cordance with the following principles of ad- justment, to wit: For each township, or frac- tional township, containing a greater quantity of land than three-quarters of an entire township, one section; for a fractional township, contain- ing a greater quantity of land than one-half, and not more than three-quarters of a township, three-quarters of a section; for a fractional township, containing a greater quantity of land than one-quarter, and not more than one-half of a township, one-half section; and for a fractional township containing a greater quantity of land than one entire section, and not more than one- quarter of a township, one-quarter section of land: Provided, That the States which are, or shall be entitled to both the sixteenth and thirty- sixth sections in place, shall have the right to select double the amounts named, to compensate for deficiencies of school land in fractional town- ships. (c) Notwithstanding the provisions of the Act of September 27, 1944 (58 Stat. 748), as amended (43 U.S.C., sec. 282) on the revoca- tion not later than 10 years after the date of approval of this Act, of any order of withdrawal, in whole or in part, the order or notice taking such action shall provide for a period of not less than six months before the date on which Ta it otherwise becomes effective in which the State in which the lands are situated shall have a preferred right of application for selection under this section, subject to the requirements of exist- ing law, except as against the prior existing valid settlement rights and preference rights con- ferred by existing law other than the said Act of September 27, 1944, or as against equitable claims subject to allowance and confirmation, and except where a revocation of an order of with- drawal is made in order to assist in a Federal land program. (d)(1) The term “unappropriated public lands” as used in this section shall include, with- out otherwise affecting the meaning thereof lands withdrawn for coal, phosphate, nitrate, potash, oil, gas, asphaltic minerals, oil shale, sodium, and sulphur, but otherwise subject to appropriation, location, selection, entry, or pur- chase under the nonmineral laws of the United States; lands withdrawn by Executive Order Numbered 5327, of April 15, 1930, if otherwise available for selection; and the retained or re- served interest of the United States in lands which have been disposed of with a reservation to the United States of all minerals or any speci- fied mineral or minerals. (2) The determination, for the purposes of this section of the mineral character of lands lost to a State shall be made as of the date of application for selection and upon the basis of the best evidence available at that time. 8a 9a 8. Taylor Grazing Act the Secretary of the Interior to any grazing per- Section 7 of the Taylor Grazing Act of June 28, mittee of such lands. The applicant, after his 1984, ch. 865, 48 Stat. 1272, as amended by the Act entry, selection, or location is allowed, shall be ; entitled to the possession and use of such lands: of June 26, 1936, ch. 842, Section 2, 49 Stat. 1976, 43 Provided, That upon the application of any ap- The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of Feb- ruary 5, 1985 (numbered 6964), or within a grazing district, which are more valuable or suit- able for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this sub- chapter or proper for acquisition in satisfaction of any outstanding lien, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public- land laws, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposition, settlement, or occupa- tion until after the same have been classified and opened to entry: Provided, That locations and entries under the mining laws including the Act of February 25, 1920, as amended, may be made upon such withdrawn and reserved areas without regard to classification and without restrictions or limitation by any provision of this subchap- ter. Where such lands are located within graz- ing districts reasonable notice shall be given by U.S.C. 315f: | plicant qualified to make entry, selection, or loca- tion, under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary. of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided. 10a APPENDIX B UNITED STATES COURT OF APPEALS TENTH CIRCUIT No. 76-1839 [Filed August 8, 1978] STATE OF UTAH, by and through its Division of State Lands, APPELLEE Vv. THOMAS S. KLEPPE, individually and as Secretary of the Interior of the United States, APPELLANT Appeal from the United States District Court for the District of Utah, Central Division (D.C. No. C-74-64) Submitted: April 20, 1978 Carl Strass, Attorney, Appellate Section, Justice De- partment, Washington, D.C. (Peter R. Taft, Assistant Attorney General, Ramon M. Child, United States Attorney, Salt Lake City, Utah, and Raymond N. lla Zagone, Gerald S. Fish and Dirk D. Snel, Department of Justice, Washington, D.C., on the brief) for Ap- pellant. Richard L. Dewsnup, Special Assistant Attorney Gen- eral, Sali Lake City, Utah, (Vernon B. Romney, Utah Attorney General, Robert B. Hansen, Deputy At- torney General, Dallin W. Jensen, Assistant Attorney General, and Clifford L. Ashton, Special Assistant Attorney General, Salt Lake City, Utah, on the brief) for Appellee. Amicus Curiae: Frank J. Allen of Clyde and Pratt, Salt Lake City, Utah, for Amicus Justheim Petroleum Company. Guy G. Hurlbutt, Deputy Attorney General of Idaho, (Wayne L. Kidwell, Attorney General of Idaho, and Peter E. Heiser, Jr., Chief Deputy Attorney of Idaho, on the brief), for Amicus State of Idaho. Before MCWILLIAMS, BARRETT and DOYLE, Circuit Judges. BARRETT, Circuit Judge. The United States, by and through the Secretary of the Interior (Secretary) appeals from a summary judgment granted in favor of the appellee, State of Utah (Utah) enjoining the Secretary to approve or disapprove no later than December 15, 1976 (since stayed) Utah’s school land grant “indemnity selec- 12a tions” of 194 parcels of public lands embracing ap- proximately 157,255.90 acres situated in Uintah County, State of Utah. The surveyed “indemnity se- lections” or “‘lieu lands” are for school land grants-in- place which were denied Utah because of federal pre- emption, private entry prior to survey, or before title could pass to the state. The historical background leading to Congressional enactment of the state school land grant statutes should aid in lending perspective to the legislative intent. There were no federal lands within the borders of the original thirteen states when they adopted and ratified the United States Constitution. Thus, vir- tually all of the lands within their borders were subject to taxation, including taxation necessary for the maintenance of their public school systems. When other states were subsequently admitted into the Un- ion, their territorial confines were “carved” from federal territories. The “public lands” owned and reserved by the United States within those terri- torial confines were not subject to taxation. This res- ervation by the United States created a serious im- pediment to the “public land” states in relation to an adequate property tax base necessary to permit these states to operate and maintain essential governmental services, including the public school systems. Jt was in recognition thereof, i.e., in order to “equalize” the status of the newly admitted states with that of the original thirteen states, that the Congress enacted the federal land grant statutes. The specific 13a purpose was to create a binding permanent trust which would generate financial aid to support the public school systems of the “public land” states. The neture of the Congressional land grant program was “bilateral” in effect. It constituted a solemn immunity from taxation of federal lands reserved or retained in ownership by the United States within the territorial boundaries of the newly admitted states in return for the acceptance by the states of the lands granted, to be held and administered by the states under trust covenants for the perpetual bene- fit of the public school systems. Large quantities of the public domain have been granted by the Congress to the various states either for general or specific purposes. Many of these grants are unrestricted. None, to our knowledge, involve the trust covenants attendant with the state school land grant statutes. A grant by Congress of land toa state for the benefit of the common schools is an abso- lute grant, vesting title for a specific purpose. Ala- bama v. Schmidt, 232 U.S. 168 (1914). The school land grant and its acceptance by the state constitutes a solemn compact between the United States and the state for the benefit of the state’s public school sys- tem. State of Nebraska v. Platte Valley Power and Irr. Dist., 28 N.W.2d 300 (Neb. 1946), 166 A.L.R. 1196. A state accepting the school land grant must abide its duty as trustee for the benefit of the state’s public school system. This duty applies with equal force to those specific school lands granted or those lands selected by the state as indemnity or lieu lands. l4a The indemnity or lieu “selections” by a state arise if any of the lands within the specific congressional grant (usually of sections 16 and 36 in each town- ship) are not available by reason of pre-existing rights of others. McCreery v. Haskell, 119 U.S. 327 (1886). The material facts in the case at bar were stipu- lated and are not in dispute. Following all pleadings, including the stipulation and pre-trial order, the re- spective parties moved for summary judgment pur- suant to Fed. Rules Civ. Proc., rule 56, 28 U.S.C.A. The trial court entertained oral arguments and con- sidered extensive briefs prior to entry of its Find- ings of Fact, Conclusions of Law and Decree on June 8, 1976. The trial court held that the discretion to be exercised by the Secretary in acting upon Utah’s school land indemnity selection lists is confined to the narrow range set forth in 43 U.S.C.A. §§ 851 and 852. On appeal, the Secretary contends that the trial court erred in not finding that his discretion is very broad pursuant to Section 7 of the Taylor Grazing Act, 43 U.S.C.A. § 315f. A recital of the background leading to the instant dispute should aid our review. Section 6 of the Enabling Act of Utah, approved July 16, 1894, 28 Stat. 107, grants to Utah sections 2, 16, 32, and 36 in every township in the State for the support of the common schools. It further provides that Utah may select other lands in lieu of those sold or otherwise disposed of. Congress provided under 43 U.S.C.A. § 851 (R.S. § 2775; Feb. 28, 1891, c. 384, 26 Stat. 796, et seq.) 15a that whenever title to any of the school sections granted to the State of Utah did not pass because of federal pre-emption (reservation) or private entry (homestead settlements), Utah was entitled to “.. . other lands of equal acreage [which] are hereby appropriated and granted, and may be selected, in accordance with the provisions of section 852... .” (Emphasis supplied.) Confusion reigned as a result of language contained in the Homestead Act of 1862 [Ch. 75, 12 Stat. 392] which limited land entries thereunder to “non-mineral lands.” Subsequent min- ing legislation provided that federal mineral lands were expressly reserved from sale except as other- wise expressly directed. The Department of the In- terior adopted an administrative interpretation that “known mineral lands” were excluded “by implica- tion” in the Utah Enabling Act. This interpretation was upheld by the Supreme Court in the case of United States v. Sweet, 245 U.S. 563 (1918) where the Court held that because the Utah Enabling Act of July 16, 1894, did not make specific mention of mineral lands that the school section grant was not intended to embrace land known to be valuable for “known minerals.” This was changed by the Congress under the Act of January 25, 1927, 44 Stat. 1026- 1027, as amended, 43 U.S.C. §§ 870, 871 which spe- cifically provided that “. . . the several grants to the States of numbered sections in place for the support or in aid of the common or public schools be, and they are hereby, extended to embrace numbered school sections mineral in character, unless land has been GES te AS Gey léa granted to and/or selected by and certified or ap- proved, to any State or States as indemnity or in lieu of any land so granted by numbered sections,” and “the grant of numbered mineral sections under this section (§ 870) shall be of the same effect as prior grants for the numbered non-mineral sections, and titles to such numbered mineral sections shall vest in the States at the time and in the manner and be subject to all the rights of adverse parties recog- nized by existing law in the grants of numbered non- mineral sections.” Notwithstanding this legislation, however, Utah was denied title to mineral lands in relation to in-lieu selections resulting from vast with- drawals or other actions taken to make the public lands unavailable for in-lieu selections. The problem appeared to have been resolved in Utah’s favor, how- ever, by the passage of 1958 and 1966 amendments to 43 U.S.C. § 852 (Act of August 27, 1958, 72 Stat. 928; Act of June 24, 1966, 80 Stat. 220), following which the statute read: 43 U.S.C.A. § 852 Selections to supply deficien- cies of school lands (a) The lands appropriated by section 851 of this title, shall be selected from any unappropri- ated, surveyed or unsurveyed public lands with- in the State where such losses or deficiencies oc- cur subject to the following restrictions: (1) No lands mineral in character may be selected by a State except to the extent that the selection is being made as indemnity for mineral lands lost to the State because of appropriation before title could pass to the State; 17a (2) No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is being made to indemnify for lands on such a structure lost to the State because of appropriation before title could pass to the State; and.... The 194 “in lieu” selection parcels selected by Utah in the instant case were made following the afore- said Congressional amendments to 43 U.S.C. § 852, supra. Accordingly, Utah was entitled to select “in lieu” lands mineral in character if the base lands lost to the state were also mineral in character. At oral argument, it was agreed that the 194 “‘in lieu” selec- tions by Utah were made following Utah’s determina- tion, through use of its expertise, that the base lands lost were “mineral in character” and that the selected “in lieu” lands were likewise “mineral in character.” We deem it important here to observe that apparently at the time of the selections by Utah none of the “base lands” lost and none of the “in lieu” lands selected were productive of oil, gas or other minerals. Thus, no contention is presented that any of the lands were “in areas of known geologic structures,” or, if so, that any of Utah’s in-lieu selections would preju- dice pre-existing rights of the United States. It is Utah’s contention, then, that the sole and exclusive de- termination to be made by the Secretary is confined to the ministerial matter of determining whether the base lands lost and the “in lieu” lands selected are “mineral in character” and equal in average. Utah argues, accordingly, that the Secretary is confined to a ministerial review of Utah’s selection lists based 18a upon the “mineral in character” criteria and the at- tendant acre-for-acre measurement, pursuant to the Utah Enabling Act and the provisions of 43 U.S.C. $§ 851, 852. The Secretary contends that pursuant to Section 7 of the Taylor Grazing Act (43 U.S.C. § 315f) he has much broader discretion, 7.e., he may “classify” the 194 “in lieu” parcels on the basis of “value-for-value” against the base lands lost to Utah, apparently predicated primarily on the “mineral in character” criteria. In answer to Utah’s allegation in its Complaint filed in the district court that the base lands lost were “mineral in character” the Secretary averred that he lacked sufficient information with which to form a belief; he alleged that he had not made any determination that “lieu lands” were mineral in char- acter. To our knowledge, no such determination has yet been made, even though Utah commenced sub- mitting its selection lists in 1965, the last of which were submitted November 10, 1971. At oral argument, counsel for the Secretary con- tended that the Secretary may determine, within the broad spectrum of the right to “classify” the “in lieu” lands pursuant to Section 7 of the Taylor Grazing Act, supra, to conduct extensive investigations to de- termine the nature, value, and extent of the non- produced “mineral in character” aspects of both the lost “base lands” and the “in lieu” lands selected in order to ascertain that the “base lands” are of equal value to the “in lieu” lands selected. At no time or in anywise has the Secretary seen fit to in- 19a form the State of Utah, the district court or this court just how this determination is to be undertaken. Thus, at this time, it seems that we can safely relate —based upon the arguments presented and the record before us—that the criteria, processes and methods for determination of the “equal value” urged by the Secretary are non-existent, or otherwise so vague as to presently fall within the realm of guesswork or speculation. We believe that it is most unlikely that Congress intended to vest such discretion in the Secre- tary in light of the historical background leading to the enactment of the “in lieu” statutes heretofore referred to. The procedure prior to the Secretary’s interpretation of the applicability of Section 7, supra, — was that once a state submitted the indemnity selec- tion list identifying the character and description of both the base lands for which indemnity is sought and the identity of the selected lands that the Secre- tary proceeds to publish notice providing any adverse claimant of the right to challenge the selections prior to execution of a “Clear List” document by which the Secretary certifies that (a) the lands designated as base lands in a selection list were properly categor- ized and described by the state and (b) the selected lands were in fact unappropriated federal publie do- main on the date the selection list was filed. The Act of May 3, 1902, 32 Stat. 188, 43 U.S.C.A. § 853 provides that all of the provisions of §§ 851 and 852, relating to the selection of lands for edu- cational purposes and indemnity therefor are made applicable to the State of Utah. 20a Whereas land grants generally are to be construed favorably to the Government and nothing is held to pass except that conveyed in clear language, (United States v. Union Pacific Railroad Company, 353 U.S. 112 (1957) ), legislation enacted by the Congress de- signed to aid the common schools of the states is to be construed liberally rather than restrictively. State of Wyoming v. United States, 255 U.S. 489 (1921). We deem this to be particularly significant in recog- nition that the sole specific Congressional reference in § 852(a) (1), supra, relates to lands “. . . mineral in character may be selected by a State [if] .. . the selection is being made for mineral lands lost to the State because of appropriation before title could pass to the State; ....” No reference whatsoever is made to the value of the “minerals in character.” This becomes the more significant, we believe, when we consider that the legislative history to P.L. 89-470, 89th Congress, 2nd Session, reflects, as do other re- ports, that the Department of the Interior withdrew its proposed amendment which would have included an equal value concept with respect to lands valuable for leaseable minerals in the place of the existing “acre for acre” selection basis. U.S. Code, Cong. & Ad. News, 2nd Session, Volume II, p. 2324 (1966). The Utah Enabling Act provides that all lands granted for educational purposes (except as other- wise provided therein) shall constitute a permanent school fund. Section 10, 28 Stat. 107, Act of July 16, 1894. The federal grant in trust to Utah for the support of its public school system was accepted by 21a Utah subject to constitutional guaranties that the proceeds of sales of all lands granted for the sup- port of the common schools shall -be-and remain a permanent fund, the interest of which only shall be expended for the support of the common schools, and any loss or diversion of all public school funds shall be restored. §§3 and 7, Article X, Constitution of Utah. To reiterate, commencing September 10, 1965 through November 19, 1971, Utah filed 194 lieu land selection lists with the Bureau of Land Management, Department of the Interior, covering 157,255.90 acres of land in Uintah County, Utah, to serve as indemnification for school lands in place, mineral in character, which were denied Utah because of federal reservation and preemption or private entry prior to survey. The selection process involved Utah’s de- termination of the “mineral in character” of the lands it had lost and the “mineral in character” of the “in lieu” lands it had selected. We are told and as- sume that this process required much study and ex- pertise. It is undisputed that Utah’s 194 selections were in compliance with the statutory criteria set forth in 43 U.S.C.A. § 852, supra. Even so, the Secre- tary has taken no action with respect to any of them, notwithstanding that many have been pending for a period in excess of ten years. While the aforesaid 194 selection lists were pend- ing, an agreement was entered into between Utah and the Secretary concerning two prototype oil shale leases issued by the Secretary embracing some 10,240 22a acres within the lands selected by Utah. In the course of this litigation, the District Court ordered that all bonus funds and rental proceeds derived from the two leases during the pendency of this action be paid into the registry of the court to be invested as directed by the court; as of May 25, 1976, some $48,291,840.00 had been paid into the district court registry and duly invested. The District Court summarized Utah’s position to be: that the Congress had expressly granted and ap- propriated lands to Utah to be selected as indemnifi- cation for original school lands that Utah did not receive because of federal pre-emption or private en- try prior to survey; that the right of selection is in the discretion of Utah and not the Secretary of the Interior; that upon filing school indemnity selection lists in accordance with 43 U.S.C.A. § 852, equitable title to the selected lands vested in Utah; that the Secretary has a narrow range of discretion in review- ing and acting on such selection lists, limited to a ministerial adjudication to determine only whether such lists are in compliance with the criteria of § 852, supra; and, if so, the Secretary is obligated to ap- prove said selections and to issue a clear list to the lands selected, thus vesting legal title in Utah. [R., Vol. III, pp. 103, 104.] The District Court summarized the Secretary’s position to be: that he is authorized and obligated by Section 7 of the Taylor Grazing Act, 43 U.S.C. § 315(f), to classify lands located within grazing districts to determine whether such disposition is ap- 23a propriate under applicable public-land laws; that in making such classification, the Secretary is author- ized in his discretion to utilize public interest cri- teria, including a comparison of the value of the base school lands lost with that of the lands selected as indemnification; and, further, that classification in favor of disposition for school indemnity selection is a condition precedent to the vesting of any right, title or interest in any state which makes any such school indemnity selection. Some of the pleadings relied upon by the trial court in granting summary judgment in favor of Utah which we deem significant are: (1) Appendix B attached to Utah’s motion for summary judgment, which is a copy of a Memo dated September 14, 1962, from the Associate Solicitor, Division of Public Lands, to the Director, Bureau of Land Management, stating, inter alia: “In consid- ering an application by a state for indemnity selection under 43 U.S.C. 851, 852, the disparity in values between the lands offered as base and the lands se- lected cannot be considered . . . . When the state lieu selection statutes were last amended in 1958, it was clear Congress recognized the practice by the states of offering as base for indemnity selection lands of little value for lands of greater value because of the equal acreage (rather than equal value) provi- sions of that law....” [R., Vol. III, p. 42.] (2) Appendix P attached to Utah’s motion for summary judgment, which is a copy of a letter dated February 14, 1974, from then Secretary of the In- 24a terior Roger Morton, to then Governor Calvin L. Rampton of Utah, stating, in part: “As you know, the [Department] has not as yet acted upon the [Utah] applications. The principal question presented .. . is whether pursuant to Section 7 of the Taylor Graz- ing Act, 48 Stat. 1272 (1934), as amended, 43 U.S.C. 315f (1972), the Department may refuse to convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secretary of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect. In the present case, although the land values are not precisely determined, it appears that the se- lections involve lands of grossly disparate values, — ...” [R., Vol. III, p. 70.] | (3) Appendix Q attached to Utah’s motion for summary judgment constituting a letter dated Feb- ruary 15, 1974, from Kent Frizzell, Solicitor, De- partment of the Interior, to Utah Attorney General Vernon B. Romney wherein Mr. Frizzell stated, in part: “We believe that the ‘comparative value’ cri- terion is a valid one with respect to classifying lands for State lieu selection; such classification being au- thorized by Section 7 of the Taylor Grazing Act, 48 Stat. 1272, 43 U.S.C. §315f (1972). Accordingly, we intend to apply that criterion when we adjudicate the pending State applications.” [R., Vol. III, p. 72.] 25a (4) Affidavit of Donald G. Prince, Assistant Di- rector of State Lands, State of Utah, with attached copy of Memorandum of February 11, 1943, from the Commissioner of the General Land Office, Department of the Interior to the Secretary which notes, inter alia: “Following the 1936 amendment to the Taylor Grazing Act (Section 7 relied upon by Secretary in this action), and the promulgation of Circular 1398 which provides that the States ‘should state whether the proposed exchanges are to be based upon equal values or equal areas’ that all exchanges for the sub- sequent five year period were, on the States’ elec- tion, made on the basis of equal area; that state in- demnity school land selections have always been based on equal areas, regardless of the value of the lease or selected lands, citing to California v. Deseret Water Etc. Company, 243 U.S. 415 and Wyoming v. United States, 255 U.S. 489.” (Emphasis supplied.) [R., Vol. III, pp. 91-94. ] The Secretary vigorously challenges those findings of the District Court limiting the Secretary’s au- thority to classify lands. They include: Finding No. 11: The Taylor Grazing Act was enacted as Public Law No. 482, 73rd Congress, Second Session, identified as the Act of June 28, 1934, 48 Stat. 1269, entitled: An act to stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to sta- bilize the livestock industry dependent upon the public range, and for other purposes. PROS = 26a The pertinent part of Section 7 of the 1934 Act provided, with respect to the classification authority of the Secretary of Interior, that: . . . the Secretary is hereby authorized, in his discretion, to examine and classify any lands within such grazing districts which are more valuable and suitable for the pro- duction of agricultural crops than native grasses and forage plants, and to open such lands to homestead entry in tracts not ex- ceeding three hundred and twenty acres in area. There is no language in the 1934 Act which purports to give the Secretary of Interior au- thority to classify lands that are selected by States for indemnification of lost school lands, nor is there anything in the legislative history of the 1934 Act that suggests that Congress in- tended to require classification as a condition to school indemnity selections. Further, the trial court found that the Secretary had no authority to compare value of lost lands with value of indemnity lands: Finding No. 12: The Taylor Grazing Act was amended in 1936 by Public Law No. 827, Act of June 26, 1936, 49 Stat. 1976 et seg. Section 7 of the 1986 Amendment, now codified as 43 U.S.C. 315(f), describes the Secretary’s classi- fication authority in the following language: . . . the Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any lands . . . within a grazing dis- trict, which are more valuable or suitable 27a for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this Act, or proper for acquisition in satisfaction of any outstanding lieu, ex- change or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public- land laws, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposi- tion, settlement, or occupation until after the same have been classified and opened to entry.... The lands selected by Utah, as identified in Finding No. 4, above, are located within grazing districts. But there is nothing in the legislative history of the 19836 Amendment to Section 7 of the Taylor Grazing Act to suggest that classi- fication by the Secretary is a prerequisite to the exercise of school indemnity selection rights by the States. If, however, such classification should be deemed to be a prerequisite to school in- demnity selection, there are no statutory criteria for classification of school indemnity selections beyond a required determination as to whether the selected lands are proper for acquisition in satisfaction of indemnity selection rights. In particular, there is nothing in Section 7 or the underlying legislative history to suggest that the Secretary is authorized or empowered to utilize public interest criteria, or to compare the value 28a of lost base lands with the value of indemnity selections, as part of any classification procedure. [R., Vol. III, pp. 104-106. ] Significant “Conclusions of Law” on the disputed central issue include: Conclusion No. 8: Federal land grants in aid of the common schools of the State of Utah create a solemn and permanent public trust for the use, benefit and support of the public school system in Utah. This public trust was created by the United States, as settlor, granting to the State of Utah, as trustee, sections 2, 16, 32 and 36 within each township within the State of Utah for the permanent benefit of the Utah public school system, as beneficiary of the trust. The instruments which created this trust con- sisted of the Utah Enabling Act, 28 Stat. 107, as passed by the Congress of the United States, and the Constitution of the State of Utah, which accepted the terms of the trust, as ratified and adopted by the people of the State of Utah. Conclusion No. 4: When original school land grants in place are denied to the State of Utah as a result of federal pre-exemption or private entry prior to survey, the State is entitled to se- lect lands of equal acreage from otherwise un- appropriated federal lands within the State, in lieu of and as indemnification for such lost base lands, pursuant to and in accordance with the criteria and limitations set forth in Section 852, Title 48, United States Code. This selection is to be made by the State in accordance with the congressional offer contained in said Section 852; 29a and, when such selections are duly filed, it is the duty of the Secretary of Interior to make a ministerial adjudication of such selection lists to determine whether they are in accordance with the requirements of said Section 852. If so, the Secretary must honor the state’s acceptance of the congressional offer, and thus fulfill the pur- pose of the public school land trust, by approv- ing said selections; but, if such selections are found not to be in compliance with the congres- sional criteria contained in said Section 852, the Secretary must deny and reject such selection lists. Conclusion No. 5: If the ministerial adjudi- cation of the school indemnity selection lists, as conducted by the Secretary under said Section 852, reveals that said selection lists were in fact in compliance with said Section 852, then Utah would have acquired equitable title to the lands so selected as of the dates the respective selection lists were filed, and from and after that date Utah would have been entitled to all reve- nues, rentals, emoluments and benefits arising or accruing from said lands from and after the respective dates when such selection lists were filed. Conclusion No. 6: The language of Section 7 of the Taylor Grazing Act, as amended in 1936 (codified as 43 U.S.C. 315(f), cannot reasonably be construed to require classification of lands within grazing districts as proper for disposition in satisfaction of school indemnity selection lists filed under Section 852 of Title 48, U.S.C.; and there is nothing in the legislative history of the Taylor Grazing Act which indicates or suggests 30a that Congress intended to subject school in- demnity selections to the classification procedures of Section 7 of the Taylor Grazing Act. Conclusion No. 7: Even if it should be as- sumed that Section 7 of the Taylor Grazing Act could be construed so as to require classification prior to disposition of land within a grazing dis- trict in satisfaction of school indemnity rights, such a classification would not be a condition precedent to the vesting of equitable title in the State of Utah as of the respective dates that the selection lists were filed; and, further, the cri- teria which would govern the Secretary in mak- ing such classification would be exactly the same as those which he is obligated to utilize in mak- ing his ministerial adjudication under Section 852 of Title 43, U.S.C. This result necessarily follows from the fact that Section 7 (43 U.S.C. 315(f£)) requires the Secretary, in making any such classification for lieu selections, to deter- mine whether the selected lands are “proper for acquisition in satisfaction of any outstanding lieu . . . rights or land grant, and to open such lands to . . . selection . . . for disposal in accord- ance with such classification under applicable public-land laws ... .” The Secretary is ac- corded no other or greater range of discretion, and no other criteria are provided by the statute. The Secretary’s determination as to whether se- lected lands are “proper for acquisition” by the State in satisfaction of its indemnity rights would have to be measured by the requirements for such acquisition as set forth in the “ap- plicable public-land law.” The applicable public- land law for school indemnity selections is 43 U.S.C. 852, and any classification of lands made 3la by the Secretary under Section 7 for disposition in satisfaction of school indemnity selections would, of necessity, be the same in nature, sub- stance and range of discretion as the ministerial adjudication performed under Section 852. It is for this reason that the result would be exactly the same whether the Secretary merely conducts the ministerial adjudication of school indemnity lists required under Section 852, or whether he conducts both the adjudication under Section 852 and the hypothetical classification under Section 7 (48 U.S.C. 315(f)). Since the law does not require the Secretary to do a useless act, and since there would be no point, purpose or benefit in a separate “classification” under Section 7, the Secretary is not required to “classify” the school indemnity selection lands in this action, but should proceed merely to conduct the minis- terial adjudication required by 43 U.S.C. 852. Nothing in this Conclusion of Law No. 7 shall be construed as an indication that school in- demnity selections are within the scope of the Taylor Grazing Act; and it is expressly con- cluded that school indemnity selections are not within the scope of, or subject to, that Act. Conclusion No. 8: Any and all regulations promulgated by the Secretary of the Interior in- consistent with these Conclusions of Law, and, in particular, any provisions within Part 2620 or Part 2400, 43 C.F.R., that purport to require classification under the Taylor Grazing Act of school indemnity selections filed under 43 U.S.C. 852, are without authority of law, are contrary . to law, and are void and of no force or effect. Conclusion No. 9: In view of the narrow, confined, ministerial range of discretion con- 82a ferred on the Secretary under Section 852 of Title 48, U.S.C., and by Section 315f of Title 43, U.S.C. (if, indeed, the latter section could be construed to apply at all), the National En- vironmental Policy Act, 42 U.S.C. 4821 et seq., does not apply to secretarial review and action on school indemnity selection lists. The Secretary must approve those selections if they are in ac- cordance with the congressional grant, appropria- tion and offer contained in the Utah Enabling Act, 28 Stat. 107, and Sections 851 and 852 of Title 48, U.S.C. Conclusion No. 10: While federal land grants ordinarily are to be narrowly construed in favor of the United States and against the grantee, the reverse rule holds true with respect to school land grants and indemnity selections, the courts will adopt a liberal interpretation of the appli- cable statutes in order to honor and fulfill the public trust in aid and support of the common schools, and thus achieve the purpose intended by Congress in granting school trust lands. Conclusion No. 11: The Secretary’s failure to take any final action any of Utah’s school in- demnity selection lists which are the subject of this litigation, even though many of such selec- tions have been pending before the Secretary for more than ten years, is “agency action unlaw- fully withheld or unreasonably delayed” within the meaning of Section 706(1), Title 28, U.S.C. [R., Vol. III, pp. 107-111.] On appeal, the Secretary contends that the Dis- trict Court erred in: (1) finding and concluding that the Secretary does not have administrative dis- cretion to classify school indemnity lieu lands based 38a upon comparative market values between selected and base lands by virtue of the 1936 amendment to Sec- tion 7 of the Taylor Grazing Act, now codified as 43 U.S.C. §315(f), and (2) assuming jurisdiction under the Tucker Act, 28 U.S.C. 1846(a) (2), to im- pound the oil-shale leasing receipts for the two tracts on the selection lists leased per agreement of the parties, in that the Mineral Leasing Act, 30 U.S.C. § 191 dictates and controls the manner of distribu- tion contrary to the order of the court. I. We first consider the Secretary’s challenge to the district court’s finding and conclusion that the Sec- retary does not have administrative discretion to classify school indemnity lieu lands based upon com- parative market values between selected and base lands by virtue of the 1936 amendment to the Taylor Grazing Act, now codified as 43 U.S.C. § 315(f). The historical background we have heretofore re- ferred to makes it clear that the school land grant statutes were enacted for a specific purpose. The strict “trust” conditions apply exclusively to the school lands granted the states or those selected “in lieu.” No identical trust consequences or compact re- lationships exist with respect to other “lieu land” selec- tions. See, e.g., Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U.S. 301 (1908), involving lands owned in fee simple covered by a patent located in a national forest reservation; Wisconsin Central R.R. Co. v. Price County, 183 U.S. 496 (1890), involving selec- 34a tion of indemnity lands by a railroad land-grant com- pany; and Hall v. Hickel, 305 F. Supp. 723 (D.C. Nev. 1969), rev. and remanded on other grounds, 473 F.2d 790 (9th Cir. 1973), cert. denied, 414 U.S. 828 (1973), involving “Valentine Scrip” lands. For other “lieu” selection statutes, see, 25 U.S.C.A. § 334 (selection rights of Indians residing off of an Indian Reservation) and 43 U.S.C.A. § 274 (selection rights to be exercised by veterans). The distinction was re- ferred to in the case of Wilcoxson v. United States, 313 F.2d 884 (D.C. Cir. 1963). The court was in- volved in a construction of the Isloated Tracts Act. The court held that § 7, supra, authorized the Secre- tary to employ his discretion relative to disposal of the subject lands. The court recognized that such discretion does not apply to the state in-lieu grants for the benefit of the public schools. Other decisions have recognized the classification powers under § 7, supra, under specific statutes. The Section 7 amendment relied upon by the Sec- retary for authority to “classify” in the instant case does not specifically refer to “in lieu” selections as indemnity for school land grants; rather, reference is there made to the Secretary’s authorization to classify lands within a grazing district to determine if those lands are proper for acquisition in satisfac- tion of “any outstanding lieu . . . rights or land grants ....” Thus, we are asked by the Secretary to substitute the general language above cited for the unambiguous, clear and unqualified language in 43 U.S.C. § 851, supra, which speaks directly to the sub- ject of lieu selections as indemnity for school land 85a grants lost to the states by use of the specific, un- abridged language directing that the states may select “. . other lands of equal acreage . . . in accordance with the provisions of section 852 of this Title, by said State to compensate deficiencies for school pur- poses ....” The distinction between the legal rights attendant upon private “in lieu” exchanges of lands and state “in lieu” exchanges as indemnity for lost school land grants was specially recognized in Lewis v. Hickel, 427 F.2d 673 (9th Cir. 1970), cert. denied, 400 U.S. 992 (1971). There, the private exchange provisions of the Taylor Grazing Act were at issue. In their efforts to overturn the decision of the Sec- retary rejecting their application for a private ex- change of lands under the Taylor Grazing Act, the appellants placed “strong reliance’ upon Payne v. New Mexico, 255 U.S. 367 (1921). The Court stated in this regard: Appellants place strong reliance upon Payne v. New Mexico. . ., a case involving the Secre- tary’s denial of an exchange under an Act grant- ing New Mexico the right to select certain lands for the support of the common schools. How- ever, that case and others like it are inapposite since they arose under statutes granting inter- ests in lands once certain conditions had been complied with. Hence, the power conferred upon the Secretary was merely ‘judicial in its nature’ (255 U.S., at 371, 41 S.Ct. 333) in the sense that his only function was to ascertain whether the specific conditions had been met. Under the exchange provisions of the Taylor Grazing Act, the power conferred on the Sec- 86a retary is much broader than that of determining if the applicant has met the conditions prescribed by Congress. (Emphasis supplied.) 427 F.2d, at p. 676. We agree with the finding of the trial court and the rationale in Lewis v. Hickel, supra, i.e., that nothing in the language of the Taylor Grazing Act, as amended, or its legislative history, empowers the Secretary to invoke the Section 7 (43 U.S.C. § 315 (f)) “classification” criteria to “in lieu” selections by a state of lands within a grazing district pursuant to the school indemnity selection statutes. We deem it significant that the Secretary has failed to point out that the §7 classification authority, in any event, relates only to surface entry rights. The Act spe- cifically provides that the lands withdrawn for clas- sification remain open to mineral location. 43 U.S.C.A. §§ 315f, 315g(d). The classification power does not extend to the mineral estate. We reiterate that land grant legislation enacted by the Congress designed to aid the common schovis of the states is to be construed liberally (in favor of the states) rather than restrictively. State of Wyo- ming v. United States, swpra. In Beecher v. Wether- by, 95 U.S. 517 (1877), the Supreme Court held that when a state is admitted to the Union and is granted sections 16 in the state upon certain conditions to be ratified by the constitution of the state, and the rati- fication was made, then the condition became un- alterable and obligatory on the United States. This rule is explicit. See also: 81A C.J.S., States, § 4b. This court cannot engraft an exception thereon favor- 37a ing the Secretary’s administrative discretion claimed here. We thus hold that the district court did not err in its findings and conclusions that the exchange of school lands lost for “in lieu” lands to be selected by Utah is to be undertaken on the equal acreage basis once it is determined that the respective lands are “mineral in character” without regard to valuation. The value-for-value exchange criteria set forth in Section 7, supra, does not apply. The legislative his- tory relating to 43 U.S.C. §§ 851 and 852, supra, together with that of the 1936 amendment to Section 7 of the Taylor Grazing Act show complete silence on the part of the Congress of any intent to au- thorize broadening of the Secretary’s classification authority respecting the indemnity selection rights of Utah. However, when we review the provisions of 43 U.S.C. §§ 851 and 852, supra, it is strikingly clear that Congress did grant the states broad rights in effecting indemnity selections. There is no ques- tion that the “equal acreage” language originally set forth in § 851, swpra, has been retained throughout its amendatory history. At no time has the Con- gress used the “equal value” reference. The trust aspect of the obligation imposed upon and assumed by the respective “public land” states in relation to lands granted for the benefit of the public school system was recently recognized by the United States Supreme Court in Lassen v. Arizona, ex rel Arizona Highway Dept., 385 U.S. 458 (1967). There, the Arizona Supreme Court was reversed in its hold- ing that the Arizona Highway Department could moe 88a condemn trust lands acquired by Arizona under § 28 of its Enabling Act for highway construction on the ground that it could be presumed that highways con- structed across such trust lands always enhanced the value of the areas taken and that, accordingly, the Highway Department was not required to compensate the trust. The United States Supreme Court em- phasized that § 28 of the Enabling Act required that trust lands be sold or leased only to “the highest and best bidder”; that no lands be sold for less than their appraised value; that disposal of trust lands be “only in manner as herein provided”; and that disposition in any other way shall be a breach of trust. The Court held that only sales and leases were intended and that the grant was plainly expected to produce a fund, accumulated by sale and use of the trust lands, with which the state could support the public in- stitutions designated by the Act. The Lassen court reaffirmed the rule applied in Ervien v. United States, 251 U.S. 41 (1919) recognizing strict concern for the integrity of the trust conditions imposed by the var- ious “public land” state enabling acts. In Ervien, supra, the Court held that actual compensation “in money” must be paid the trust equaling the ap- praised value. The same stringent trust conditions were again reaffirmed by the holding that a lease by Arizona of lands acquired for the common schools under its Enabling Act can only be executed in con- sideration of a rental representing its “true value.” Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295 (1976). 39a The trial court specifically found that there is nothing in the legislative history of the 1986 amend- ment to Section 7 of the Taylor Grazing Act to sug- gest that the classification by the Secretary is a prerequisite to the exercise of Utah’s school indemnity selection rights. [R., Vol. III, p. 105.] We agree. There are established rules of statutory construc- tion supporting the trial court’s conclusion that Sec- tion 7 does not control here: A statute must be con- strued as it was intended to be understood when en- acted in the light of the conditions as they existed when the act was passed. United States v. Stewart, 311 U.S. 60 (1940). Words of a statute are to be interpreted in their ordinary definitions and the meanings commonly attributed to them. Jones v. Liberty Glass Company, 332 U.S. 524 (1978). Where there are two statutes upon the same subject, the earlier being special (as is the case with regard to 43 U.S.C. §§ 851 and 852, supra) and the later be- ing general (as is the case with regard to the 1936 amendment to the Taylor Grazing Act, 48 U.S.C. § 315(f), supra) it is settled law that the special act remains in effect as an exception to the general act unless absolute incompatibility exists between the two, and all matters coming within the scope of the special statute are governed by its provisions. Preiser v. Rodriguez, 411 U.S. 475 (1978); Missouri K & T Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir. 1949) ; United States v. Fixico, 115 F.2d 389 (10th Cir. 1940); Sutherland Statutory Construction, 4th Ed., Vol. 2A § 51.05. The latter authority summarized the general-special acts rule: 40a General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in gen- eral terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible, but if there is conilict, the latter will prevail, regardless of whether it was passed prior to the general stat- ute, unless it appears that the legislature in- tended to make the general act controlling. Sutherland Statutory Construction, 4th Ed., Vol. 2A, § 51.05, p. 315. We submit that the strict, continuing “trust” ob- ligations imposed by the Congress upon the “public land” states (and willingly accepted by them) in the school land grant statutes clearly set these enact- ments aside as special acts completely separate and apart from all other public land grant enactments. In that sense, then, these enactments are set apart and given special, independent treatment, much akin to the special preference and treatment of Indians recognized in Morton v. Mancari, 417 U.S. 535 (1974). This court has held that a statutory exception should be strictly construed so that the exception does not devour the general policy which the law embodies. Edward B. Marks Music Corp. v. Colorado Mag., Inc., 497 F.2d 285 (10th Cir. 1974), cert. denied, 419 U.S. 1120 (1975). Statutes are, in all instances, to be construed in a manner so as to ef- fectuate the intent of the enacting body, and an unambiguous statute must be given its plain and 4la obvious meaning. United States v. Ray, 488 F.2d 15 (10th Cir. 1973) ; United States v. Western Pacific Railroad Company, 385 F.2d 161 (10th Cir. 1967), cert. denied, 391 U.S. 919 (1968). The case of Bronken v. Morton, 473 F.2d 790 (9th Cir. 1973) is in point. It involved the issue of the Secretary’s power to apply the “comparative value” test of § 7, supra, upon denial by the Secretary of the issuance of land patents to holders of “in lieu’ selection rights involving “Valentine scrip certificates” issued to com- pensate lands lost by reason of the Mexican land grant. The “scrip” statute authorized the holder to select an “equal quantity” of certain public lands. The Secretary opted for selection based on “equal value.” The court rejected the Secretary’s position because the “Valentine” scrip act did not provide “that monetary value of the selected lands” was the criteria. Applying these rules of statutory construction, we hold that the District Court did not err. Further- more, we believe, just as did the trial court, that the United States Supreme Court has, in two opinions, clearly and succinctly settled the statutory construc- tion conflict presented here in favor of Utah. A de- tailed recital of these two opinions follows. Payne v. New Mexico, supra, involved a suit by New Mexico to enjoin the Secretary of the Interior and the Commissioner of the General Section of the Land Office from canceling or annulling a “lieu land selection of that state under a mistaken conception of their power and duty.” New Mexico did all that was needed to perfect the selection (just as here). 42a The list was approved by the local land office and sent to the general land office. The list was accepted and approved. One year later the Commissioner di- rected that the selection be canceled “‘solely on the ground that in the meantime .. . the base tract... had been eliminated from the reservation by a change in its boundaries.” The Secretary affirmed the Com- missioner. The state appealed. Both offices proceeded on the basis that the validity of the selection was to be tested by conditions existing when they came to examine it and not by those existing when the state made the selection. The Supreme Court held that the conditions existing when the selection was made control. In so holding the Court said that the provision under which the selection was made (the “lost” lands and the “in lieu” lands were non-mineral in character) was one inviting and proposing an exchange of lands whereby the Congress said, in sub- stance, to the state: If you will waive or surrender your titled tract in the reservation, you may select and take in lieu of it a tract of like area from the unap- propriated non-mineral public lands outside the reservation. Acceptance of such a proposal and compliance with its terms confer a vested right in the selected land which the land offices can- not lawfully cancel or disregard. In this re- spect the provision under which the state pro- ceeded does not differ from other land laws which offer a conveyance of the title to those who ac- cept and fully comply with their terms. 255 U.S., at p. 370. 48a Again, in relation to the language “under the di- rection and subject to the approval of the Secretary of Interior” appearing in the statutes relating to lieu land selection, the Court in Payne, supra, noted its prior decision that a claimant to public land who has done all that is required under the law to perfect his claim acquires equitable title to the land which the Government then holds in trust for him. The Court said: The words relied upon (subject to the approva! of the Secretary of the Interior) are not peculiar to this land grant, but are found in many others. Their purpose is to cast upon the Secretary the duty of ascertaining whether the selector is act- ing within the law, in respect to both the land relinquished and the land selected, and of ap- proving or rejecting the selection accordingly. 255 U.S., at p. 371. State of Wyoming v. United States, swpra, in- volved a suit by the United States to establish title to 80 acres of land and to the proceeds of oil pro- duced therefrom. One of the defendants, the State of Wyoming, claimed under a lieu selection made in 1912. It was against that selection and lease that the United States sought to establish title’ Under the Act of July 10, 1890, Congress granted to Wyo- ming for the support of its common schools Sections 16 and 36 in each township as lands in place, with certain exceptions. “he act of February 28, 1891, granted the state, in the event any of the designated lands in place should be included within a public reservation, the privilege to “waive its right thereto 44a and select in lieu thereof other lands of equal acreage from unappropriated non-mineral public lands out- side the reservation and within the state. See: Cali- fornia v. Deseret Water, Etc., Co. 248 U.S. 415 (1917) ; Payne v. New Mexico, ante, 367. Other laws of general application, §§ 441, 453, 2478, Rev. Stats., require that the selections be made under the direc- tion of the Secretary of the Interior.” (Emphasis supplied.) 255 U.S., at 494. The State of Wyoming selected the 80 acres in lieu of a tract which had passed to the State under the school grant which was included in a public reservation known as the Big Horn National Forest. The selected in lieu acreage “was vacant, unap- propriated, and neither known nor believed to be mineral .... “The State did everything necessary to show a perfect title to the land relinquished and perfect relinquishment thereof to the Government, and everything that was required either by statute or regulation of the Land Department... .” 255 U.S. at 494. The list remained in the General Land Office awaiting the consideration of the Commissioner for about three years. In the meantime, the selected land, and other lands, were included in a temporary exclusive withdrawal as possible oil land and there- after the Commissioner declined to accept the selec- tion made by the State of Wyoming and called on the State to either accept a limited surface right- certification or to show that the 80 acres was still not known or believed to be mineral. Wyoming claimed that it had been vested with equitable title 45a when the selection was made. Accordingly, Wyoming refused the tender. The Commissioner then canceled the selection on the theory that he was justified in rejecting it by reason of the subsequent withdrawal and oil discoveries in the vicinity. The Secretary of Interior affirmed the Commissioner. In the mean- time, Wyoming had issued an oil lease on the selected tract. The oil company (lessee) drilled and obtained successful production of oil some four years after the selection. The Supreme Court posed the issue pre- sented as: The question presented is whether, consider- ing that the selection was lawfully made in lieu of the state-owned tract contemporaneously re- linquished, and that nothing remained to be done by the State to perfect the selection, it was ad- missible for the Commissioner and the Secretary to disapprove and reject it on the ground that the selected land was withdrawn two years later under the Act of June 25, 1910, or still later was discovered to be mineral land, that is, to be valuable for oil. (Emphasis supplied. ) 255 U.S., at p. 496. The Court held that once Wyoming had complied with lawful “in lieu” selection procedures, there was no power conferred in the Commissioner or the Sec- retary to withhold the approval in the sense of grant- ing or denying a privilege to the state, but rather: ... of determining whether an existing privilege conferred by Congress had been lawfully exer- cised ;—in other words, their action was to be judicial in its nature and directed to an ascer- 46a tainment and declaration of the effect of the waiver and selection by the State in 1912. If these were valid then—if they met all the re- quirements of the congressional proposal, includ- ing the directions given by the Secretary—they remained valid notwithstanding the subsequent change in conditions. Acceptance of such a pro- posal and full compliance therewith confer vested rights which all must respect. Equity then re- gards the State as the owner of the selected tract and the United States as owning the other; and this equitable ownership carries with it whatever advantage or disadvantage may arise from a subsequent change in conditions whether one tract or the other be affected. (Emphasis supplied. ) 255 U.S., at pp. 496, 497. The Court equated the “in lieu” selection to a cash entry, citing to Benson Mining Co. v. Alta Mining Co., 945 U.S. 428 (1892), for the proposition that when the price is paid the right to the patent im- mediately arises and the delay in the Land Depart- ment relative to administrative processing does not diminish the rights flowing from the purchase. Fur- ther, the Court made special reference to its decision in Daniels v. Wagner, 287 U.S. 547 (1915). There the Secretary rejected a lieu selection and ruled that no right attached under the selection unless and until it was approved by him and that he possessed a dis- cretion to reject it and give effect to an intervening change in conditions. The Court did not accept the Secretary’s position. The Court held that when selec- tions were made in accord with statutes it was the 47a plain duty of the Secretary to approve them and that the Secretary’s power to approve the lists of selection was judicial in its nature. 255 U.S., at pp. 502, 503. The most telling, significant and pertinent language of the Supreme Court opinion in State of Wyoming v. United States, supra, directly applicable to the contention raised by the Secretary here that the “value for value” criteria is to be employed in ap- proving the “‘in lieu” selection at issue is: ... If these (selections of “in lieu” lands) were valid then (when the selection lists were sub- mitted) . .. they remained valid notwithstand- ing the subsequent change in conditions (i.e., dis- covery of oil and production thereof). Accept- ance of such a proposal and full compliance therewith confer vested rights which all must respect. Equity then regards the State as the owner of the selected tract and the United States as owning the other; and this equitable owner- ship carries with it whatever advantage or dis- advantage may arise from a subsequent change in conditions whether one tract or the other be affected. 255 U.S., at p. 497. We believe that until and unless there is commer- cial production of minerals there is really no defini- tive means or method of ascertaining comparative value of tracts which are “mineral in character.” The Supreme Court obliquely recognized this, swpra, by reference to ‘whatever advantage or disadvantage may arise from a subsequent change in condition whether one tract or the other be affected.” 48a Thus, we conclude that the solemn bilateral agree- ment between the United States and the “Land Grant” State of Utah included the unqualified, un- ambiguous right of Utah, upon incorporation in its Enabling Act of the waiver heretofore referred to, coupled with Utah’s acceptance of the trust condi- tions and obligations set forth under Sections 3 and 7, Art. X of its Constitution, to select “in lieu” school indemnity lands which are “mineral in character” for the specific school lands granted which are “mineral in character” but lost to the State. There is no legislative criteria limiting or defining the term “mineral in character.” Thus all that is required is that both the “lost” lands and the “in lieu” lands have some identifiable “mineral in character.” The Secretary argues, it seems, that the affected “Land Grant” states are to be bound without exception to the stringent trust obligations they have assumed in their administration of the “school lands” granted—or those selected “in lieu”—while the United States Govern- ment is not bound to the performance of those cove- nants it agreed to in consideration for Utah’s waiver. We reject this contention. It is unreasonable and contrary to the solemn covenant of the United States Government; it is also in derogation of the plain language employed by the Supreme Court in State of Wyoming v. United States, supra. The trial court found yet another reason for re- jecting the Secretary’s position on the application of Section 7 in concluding that: 49a . .. If, however, such classification (as set forth under Section 7, now codified as 43 U.S.C. § 315 (f), supra), should be deemed to be a prerequisite to school indemnity selection, there are no statu- tory criteria for classification beyond a required determination as to whether the selected lands are proper for acquisition in satisfaction of in- demnity selection rights. In particular, there is nothing in Section 7 or the underlying legisla- tive history to suggest that the Secretary is au- thorized or empowered to utilize public interest criteria, or to compare the value of lost base lands with the value of indemnity selections as part of any classification procedure. We agree. In our view Section 7 was not directed to school indemnity selection rights because its thrust is to “uses.” Section 7 authorizes the Secretary to employ a classification process to determine whether lands within a (Taylor Grazing) grazing district may be adaptable to “uses” having a higher value than grazing. The Secretary was empowered to: . . . to examine and classify any lands... within a grazing district, which are more valu- able or suitable for the production of crops for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this Ast... 43 U.S.C.A. § 315(f). School indemnity selections are not proposed “uses” of land. They are selections for the transfer of title and subsequent administration by the states under 50a the solemn trust conditions. Accordingly, the afore- said “classification” procedures or Section 7 cannot apply to school indemnity selections. Under 43 U.S.C. § 851, supra, the Taylor Grazing lands are appropriated to the states for indemnity selections. The Secretary is confined to unappropriated lands under Section 1 of the Taylor Grazing Act. 43 U.S.C. § 315. School indemnity selections are not “entries” in the traditional sense. All federal lands in Utah are situate within grazing districts. Thus, we must conclude that if the Secretary’s power to “classify” school indemnity lands applies, there are no legislative guidelines or criteria spelling out the scope of such power. The Secretary argues that he has authority under Section 7 to cancel the “in lieu” selections based upon his discretionary power to “classify,” but he has not deemed it necessary to spell out the scope or extent of the “classification” power in the case at bar. In fact, he contends that Section 7 “puts no restric- tions on the substance of secretarial discretion.” [Brief of Appellant, p. 31.] The Secretary’s conten- tion is erroneous. The “classification” criteria were spelled out by the Congress for other types of public land dispositions under the 1936 amendment, i.e., homestead entries and exchange of private land. We agree with Utah that, “It makes no sense to suppose that Congress would spell out conditions and criteria for the exchange of private land for federal land, but would at the same time grant to the Secretary un- limited discretion, with no criteria or guidance, to deny school indemnity selections by classifying the 5la land for retention in federal ownership.” [Brief of Appellee, p. 60.] The breadth and scope of the right of “classification” claimed by the Secretary creates the very vagueness condemned in Connally v. Gen- eral Construction Co., 269 U.S. 385 (1926). There the Court held that a statute which is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process. See also: Boyce Motor Lines, Ine. v. United States, 342 U.S. 337 (1952); Sutherland Statutory Construction, 4th Ed., Vol. 1A, § 21.16. Finally, we reach the Secretary’s contention that classification is likely required under Executive Order 5327 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0100%3A01. Public record. Not legal advice.