Petition — Andrus v. Idaho
Supreme Court brief1980
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No. / AUG 16 1979 |
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ISHAM RODAK, JR., CLERK
Iu the Supreme Court uf the United States
OCTOBER TERM, 1978
CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,
PETITIONER
OP
STATE OF IDAHO, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
WADE H. MCCREE, JR.
Solicitor General
SANFORD SAGALKIN
Acting Assistant Attorney General
LouIs F. CLAIBORNE
Deputy Solicitor General
WILLIAM ALSUP
Assistant to the Solicitor General
JACQUES B. GELIN
EDWARD J. SHAWAKER
Attorneys
Department of Justice
Washington, D.C. 20530
Page
a cssansumbaniavennsones 1
CE RES EE LEE SSE 2
EES 2
Neen ees cas civngsinncerentaanensnen- 2
al Tee a 5
Reasons for granting the petition .................. 10
EE ESI 5a 19
asl cnceiavadinnoceonsise la
Ne a ci ccatdcacasmsinmetenchorncones 2a
Appendix C ........ isin sencctesantbnevnense 30a
SE EAE Sn 39a
REE SES RIS SO 43a
CITATIONS
Cases and Administrative Decisions:
Andrus v. Charlestone Stone Products
des enacesennennene 12,15
Board of Governors v. First Lincolnwood
Corp., No. 77-882 (Dec. 11, 1978)........ 15
Bronken v. Morton, 473 F.2d 790, cert.
SS A a L 13
Cameron v. United States, 252 U.S. 450.. 15
Idaho Irrigation Co. v. Gooding, 265
i cicsirciesbsveceisavssncsnessennce 14
INS v. Bagamasbad, 429 U.S. 24 ............ 11
Jan ¥. Bowe, Sol US. 34 ........................ 11
Saxbe v. Bustos, 419 U.S. 665 .................... 15
Il
Cases and Administrative
Decisions—Continued Page
State of Wyoming, 36 Pub. Lands Dec.
NO SRNAL REN eas AD RO Re 14
Udali v. Tallman, 380 U.S. 1 .2020............- 15
United States v. Rutherford, No. 78-605
GI BN MWD ciilicessiteeictaim ds eins, 15
Yakima Development Co. v. State of
Washington, 34 Pub. Lands Dec. 453.. 14
Statutes, resolutions, and regulations:
Act of May 27, 1908, ch. 200, Section 1,
35 Stat. 347, 438 U.S.C. 645 2. 6
Act of March 15, 1910, ch. 96, 36 Stat.
237, 43 U.S.C. (1970 ed.) 648 ........ 4-5, 6, 7,8
Act of December 29, 1916, ch. 9, 39
Stat. 865, 43 U.S.C. (1970 ed.) 300.... 7
Administrative Procedure Act:
oe Oe a 13
DUB FORCE AR ) ccc cssceseeerrnvess 13
Carey Act of August 18, 1894, ch. 301,
Section 4, 28 Stat. 422, 43 U.S.C. 641.. 2-4, 5,
7,8
Desert Land Act:
RP WRI WIE cs hetscacensesctcinnpsnvassoanbiccnceics 16
PI te IE wie ie dlrs Gecomcccieentlvciecnalich des 5
Federal Land Policy and Management
Act of 1976, Pub. L. No. 94-579, 90
Stat. 2743:
Section 102(a)(1), 48 U.S.C. 1701
RID iilihecttattbecte Sereda caer 17
Section 202, 483 U.S.C. 1712 .............. 17
ae
III .
Statutes, resolutions, and
regulations—Continued Page
Section 203(b), 43 U.S.C. 1718 (b).... 16
Section 204, 43 U.S.C. 1714 .............. 6, 7
Section 704(a), 90 Stat. 2792 —........ 4,6,7
Taylor Grazing Act, Section 7, 43 U.S.C.
RARER AE AR RE SOA OEE EN 8
SS UB: (HBTS OB) UGE onccnccecenicceseseh. 7
Pub. Bes: 26, 36 Stat. 677 ..................... i. 6
el A GS | RL | eee ae 7
Miscellaneous:
Boise District Agricultural Development
Draft Environmental Impact State-
ment for Southwest Idaho, Bureau of
Land Management, Boise District Of-
fice, 1-1 through 1-2 (1979) —............. 16
26 Cong. Rec. (1894) :
Di HINER sAiestushstatinesiieiiedis Kenia ctichitiunimegeniends 12
gt CARLA A AMCAN MONA rt SOF INC a 12
Exec. Order No. 10355, 17 Fed. Reg. 4831
ED aces iss cael ahctors acedhee alec isbn dha catalacabrt 7
42 Fed. Reg. 18100 (1979) ...................... 6
H.R. Rep. No. 662, 61st Cong., 2d Sess.
II inkénd 5 ch os cantata aclccsaleanlictiaimensanetisiens 6
Report of the Director of the Bureau of
Land Management Table 114 (1952)... 7,17
S. Rep. No. 367, 61st Cong., 2d Sess.
CEE carcasses paciadintesansunispiabbiaisdcnuimetciaiss 6
Iu the Supreme Court of the United States
OCTOBER TERM, 1978
No.
CeciL D. ANDRUS, SECRETARY OF THE INTERIOR,
PETITIONER
Vv.
STATE OF IDAHO, ET AL.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE NINTH 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 Ninth Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App. A,
infra, la) is not yet reported. The opinion of the
district court (App. B, infra, 2a-29a) is reported
at 417 F. Supp. 873. The opinion of the Interior
Board of Land Appeals (App. C, infra, 30a-38a) is
reported at 21 IBLA 210.
(1)
2
JURISDICTION
The judgment of the court of appeals (App. E,
infra, 43a) was entered on April 19, 1979. Mr. Jus-
tice Stevens subsequently entered an order enlarging
the time in which to petition for certiorari to August
17, 1979. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the Carey Act, as amended, 438 U.S.C.
641, requires the Secretary of the Interior indefinitely
to reserve from appropriation to other public or pri-
vate uses some 2.4 million acres of desert land with-
in Idaho for the eventuality that the State may be
able and willing to select all or any part of such
acreage for irrigation and reclamation under the Act.
STATUTES INVOLVED
The Carey Act of August 18, 1894, ch. 301, Sec-
tion 4, 28 Stat. 422, 48 U.S.C. 641, provides:
To aid the public-land States in the reclama-
tion of the desert lands therein, and the settle-
ment, cultivation and sale thereof in small tracts
to actual settlers, the Secretary of the Interior
with the approval of the President is, as of
August 18, 1894, authorized and empowered,
upon proper application of the State to contract
and agree, from time to time, with each of the
States in which there may be situated desert
lands as defined by the Act approved March 8,
1877, and the Act amendatory thereof. approved
3
March 3, 1891, binding the United States to
donate, grant and patent to the State free of cost
for survey or price such desert lands, not ex-
ceeding one million acres in each State, as the
State may cause to be irrigated, reclaimed, occu-
pied, and not less than twenty acres of each one
hundred and sixty acre tract cultivated by actual
settlers, as thoroughly as is required of citizens
who may enter under the desert-land law,
within ten years from the date of approval by
the Secretary of the Interior of the State’s ap-
plication for the segregation of such lands; and
if actual construction of reclamation works is not
begun within three years after the segregation
of the lands or within such further period not
exceeding three years, as shall be allowed by the
Secretary of the Interior, the said Secretary of
the Interior, in his discretion, may restore such
lands to the public domain; and if the State
fails, within ten years from the date of such
segregation, to cause the whole or any part of
the lands so segregated to be so irrigated and
reclaimed, the Secretary of the Interior may, in
his discretion, continue said segregation for a
period not exceeding five years, or may, in his
discretion, restore such lands not irrigated and
reclaimed to the public domain upon the expira-
tion of the ten-year period or of any extension
thereof.
Before the application of any State is allowed
or any contract or agreement is executed or any
segregation of any of the land from the pub-
lic domain is ordered by the Secretary of the
Interior, the State shall file a map of the said
land proposed to be irrigated which shall exhibit
a plan showing the mode of the contemplated
4
irrigation and which plan shall be sufficient to
thoroughly irrigate and reclaim said land and
prepare it to raise ordinary agricultural crops
and shall also show the source of the water to be
used for irrigation and reclamation.
Any State contracting under this section is
hereby authorized to make all necessary contracts
to cause the said lands to be reclaimed, and to
induce their settlement and cultivation in ac-
cordance with and subject to the provisions of
this section; but the State shall not be au-
thorized to lease any of said lands or to use or
dispose of the same in any way whatever, except
to secure their reclamation, cultivation, and set-
tlement.
As fast as any State may furnish satisfactory
proof according to such rules and regulations as
may be prescribed by the Secretary of the In-
terior, that any of said lands are irrigated, re-
claimed, and occupied by actual settlers, patents
shall be issued to the State or its assigns for
said lands so reclaimed and settled: Provided,
That said States shall not sell or dispose of more
than one hundred and sixty acres of said lands
to any one person, and any surplus of money
derived by any State from the sale of said lands
in excess of the cost of their reclamation, shall
be held as a trust fund for and be applied to the
reclamation of other desert lands in such State.
The Act of March 15, 1910, ch. 96, 36 Stat. 237,
43 U.S.C. (1970 ed.) 6438, provides: ?
‘This statute was repealed by Section 704(a) of the Fed-
eral Land Policy and Management Act of 1976, Pub. L. No.
94-579, 90 Stat. 2748, 2792.
5
To aid in carrying out the purposes of sec-
tion 641 of this title, it shall be lawful for the
Secretary of the Interior, upon application by
the proper officer of any State or Territory to
which said section applies, to withdraw tem-
porarily from settlement or entry areas embrac-
ing lands for which the State or Territory pro-
poses to make application under said section,
pending the investigation and survey prelimi-
nary to the filing of the maps and plats and
application for segregation by the State or Ter-
ritory: Provided, That if the State or Territory
shall not present its application for segregation
and maps and plats within one year after such
temporary withdrawal the lands so withdrawn
shall be restored to entry as though such with-
drawal had not been made.
STATEMENT
1. The Carey Act, Section 4 of the Act of August
18, 1894, ch. 301, 28 Stat. 422, 43 U.S.C. 641, au-
thorizes the Secretary of the Interior, with the ap-
proval of the President, to contract to grant and
patent “desert lands” to any state in which there
are such lands, in exchange for the state’s agreement,
among other things, to cause such lands to be irri-
gated, reclaimed, cultivated, and settled.2 After a
state’s application for a grant has been approved,
the land is segregated from the public domain for
a period of from three to 15 years for the pur-
2 “Desert land” is land which will not yield an agricultural
crop without irrigation. See 43 U.S.C. 322, 641 (para. 1).
6
pose of allowing the state to cause an adequate
irrigation system to be constructed and a suffi-
cient water supply to be made available. Upon
satisfactory proof that the conditions of the contract
have been fulfilled, patents must be issued to the
state or its assigns for the land reclaimed and set-
tled. Originally, no state could receive more than
one million acres of land for Carey Act development.
In 1908, however, Congress raised the ceiling for
Idaho to three million acres. See Act of May 27,
1908, ch. 200, Section 1, 35 Stat. 347, 43 U.S.C. 645;
Pub. Res. 28, 35 Stat. 577; see generally 42 Fed.
Reg. 18100 (1977) (Carey Act regulations).
In 1910, the Secretary was authorized to withdraw
desert lands temporarily from the public domain
upon request by a state but prior to its submission
of a formal plan under the Carey Act. Act of March
15, 1910, ch. 96, 36 Stat. 237, 43 U.S.C. (1970 ed.)
643.° This legislation was added to prevent specula-
tive filings on land contemplated by a state for a
Carey Act project. S. Rep. No. 367, 61st Cong., 2d
Sess. 1 (1910); H.R. Rep. No. 662, 61st Cong., 2d
Sess. 1 (1910).
No state has reached its ceiling of land permitted
under the Act. To date, Idaho has received approxi-
mately 600,000 acres of land under the Act. See
8 After the district court’s decision and judgment, this pro-
vision was repealed by Section 704(a) of the Federal Land
Policy and Management Act of 1976 (FLPMA), Pub. L. No.
94-579, 90 Stat. 2792. Section 204 of FLPMA, 43 U.S.C. 1714,
however, gave the Secretary general authority to make with-
drawais.
7
Report of the Director of the Bureau of Land Man-
agement Table 114 (1952) (the most current report
on the Carey Act). Most patents under the Carey
Act were issued in the early years of this century
when water sources were still conveniently located
to arid land. As water sources become increasingly
unavailable to arid lands, new Carey Act projects
began to dwindle and by 1952 were all but nonex-
istent. Recent improvements in technology for pump-
ing water from deep wells and river canyons, how-
ever, have revived interest in Carey Act developments
in Idaho.*
2. In 1974, the State of Idaho, invoking Section
643, requested that the Secretary withdraw tempo-
rarily a specified tract of 27,400 acres in Idaho pend-
ing the State’s submission of a proposed development
under Section 641. On January 24, 1975, the Bureau
of Land Management rejected the application for a
temporary withdrawal because the land had been
withdrawn for other purposes including, as to some
of the land, stock-driveway purposes (App. C, infra,
8la, 33a).5 The State appealed BLM’s action to
4 We are informed that the State of Nevada has received a
large number of applications from Nevada residents request-
ing Carey Act developments. The State, in turn, is expected to
soon make applications to the Secretary under the Carey Act.
5 Under the authority of 43 U.S.C. (1970 ed.) 141; Exec.
Order No. 10355, 17 Fed. Reg. 4831 (1952), the Secretary
withdrew the lands in 1955 for driveways for stock. See Act
of December 29, 1916, ch. 9, 39 Stat. 865, 43 U.S.C. (1970
ed.) 300, repealed and replaced by the Federal Land Policy
and Management Act of 1976, Pub. L. No. 94-579, Sections
204, 704 (a), 90 Stat. 2792, 43 U.S.C. 1714; 43 C.F.R. 2313.1 (c)
(stock driveways).
8
the Interior Board of Lands Appeals only with re-
spect to the lands withdrawn for stock-driveway pur-
poses (7d. at 33a). The State simultaneously peti-
tioned the Board, pursuant to Section 7 of the Taylor
Grazing Act, 43 U.S.C. 315f, to classify the tract as
suitable for development under the Carey Act (id.
at 34a).
The State argued that the Carey Act gave Idaho
the right to three million acres of public land for
Carey Act developments and that this right vested in
1894 when the Act became law and takes precedence
over subsequent withdrawals and uses (id. at 36a).
Accordingly, the State contended that the Secretary
has no discretion under Section 643 to deny Idaho’s
request so long as *he lands requested were desert
lands (ibid.). On July 31, 1975, however, the
Board held that Section 641 “is couched in discre-
tionary language authorizing and empowering—not
requiring—the Secretary to contract and agree with
the states to donate, grant, and patent lands” (ibid.).
The Board affirmed the refusal to withdraw the
lands and directed the petition for classification to
the BLM for initial consideration (id. at 38a).
3. On February 21, 1975, the State filed the pres-
ent action in the United States District Court for the
District of Idaho against the Secretary of the In-
terior. The complaint alleged that the Secretary had
notified the State (i) that he would not allow “re-
quests for segregation or withdrawal under the Carey
Act as a matter of right” and (ii) that he had
the authority to refuse to convey lands under the
Carey Act even though they are in fact desert lands
9
and suitable for agricultural use (Compl. at 2). The
complaint sought a declaratory judgment that the
Secretary’s policy violated the Carey Act.°
On summary judgment the district court agreed
with the Secretary that the Carey Act did not make
a grant in praesenti to the State, and that the State
did not have an unbridled right to select any desert
land for Carey Act development (App. B, infra, 18a).
The court also held that if the State is denied an ap-
plication for land for Carey Act development because
that land has been withdrawn for some other use, the
State’s remedy is to petition the Secretary to open
that land for Carey Act development, and that the
Secretary’s decision, once final, is reviewable in the
courts (id. at 19a). The court, however, accepted
Idaho’s basic claim, holding that the Carey Act “con-
ferred upon the State of Idaho a right of entitlement
to three million acres of desert land suitable for ir-
rigation, cultivation and settlement” and that the
Secretary must preserve enough desert land to satisfy
this right (id. at 18a-19a) :
The State is guaranteed a maximum entitlement
of three million acres of suitable desert land for
Carey Act development to select from time to
time, which it cannot be deprived of by the Sec-
retary of the Interior, if the State meets the
conditions of the Carey Act. However, the State
6 The complaint also alleged that another policy of the Sec-
retary concerning the amount of acreage available to a family
violated the Act (Compl. at 3-4). The courts below decided
this issue against the Secretary. We do not seek certiorari on
this issue.
10
may not perfunctorily select acreage previously
withdrawn for other purposes such as in this
case a withdrawal for stock-driveways. The Sec-
retary is under an obligation to preserve enough
desert land suitable for Carey Act development
to fulfill the State’s right of entitlement, which
the Federal Government must contract to donate
to the State in accordance with the Act. [Em-
phasis added. ]
The court entered a judgment against the Secre-
tary that “ordered, adjudged and declared’ that
Idaho “is entitled to have withdrawn and patented
three million acres of the desert lands in the public
domain (as reduced by prior patents issued pursuant
to the Carey Act) situate in the State of Idaho for
entry under said Act, providing that there are suf-
ficient lands of such kind, quality and character
within the State of Idaho, and providing that the
State of Idaho satisfies all the terms and conditions
of said Act * * *” (App. D, infra, 40a). The Secre-
tary and the State both appealed. On April 19, 1979,
the Ninth Circuit affirmed in a one-sentence opinion
(App. A, infra, ia).
REASONS FOR GRANTING THE PETITION
1. The decision below is incorrect. The Carey Act
merely authorizes the Secretary of the Interior, in
his discretion and subject to the approval of the
President, to enter into contracts to grant land to
the states: the Act does not require the Secretary
and the President to grant the maximum acreage
authorized to each state. The text of the statute,
its legislative history, and consistent administrative
practice, all support this conclusion.
11
a. First, the language of the statute is permis-
sive—not mandatory. The Secretary is ‘author-
ized and empowered” to contract to grant desert
land to the state when certain conditions are ful-
filled. It does not follow that where the conditions
are met the Secretary must make the grant. To
“authorize” administrative action is not to require
that it be taken. See, e.g., Jay v. Boyd, 351 U.S.
345 (1956); INS v. Bagamasbad, 429 U.S. 24, 26
(1976).
This is all the clearer here because Congress in the
same breath used the word “binding” to describe the
contract. Congress clearly intended the contract, once
made, to be binding, but, equally clearly, gave the
Secretary discretion whether or not to enter into
such a contract in the first place. The Secretary,
moreover, may grant “not exceeding” three million
acres to the state. Had Congress intended to confer
an inchoate right to three million acres, subject only
to the availability of “suitable” land and irrigation,
cultivation and settlement of the land, the phrase
“not exceeding” would have no place. “Not exceed-
ing” reflects the discretion to grant less than three
million acres even where the statutory conditions are
met.
Furthermore, the President must “approve” all
contracts under the Act. No criteria, however, are
specified to guide the President. Inasmuch as it is
unlikely that the President’s approval was required
simply to confirm the Secretary’s factual determina-
tion that the statutory requirements are met, the pro-
12
vision for the President’s concurrence must have been
intended to insure that, considering all relevant fac-
tors of public policy, release of the land was in the
public interest.
There is still another textual pointer. Even when
a binding contract is made, the Secretary may “in his
discretion” restore segregated land to the public do-
main if actual construction of reclamation works is
not begun within three years of the segregation.
This power is inconsistent with any “right” of the
state to the land upon its mere say-so that it intends
to develop it.
The plain language of the statute thus defeats any
right of Idaho to take up to three million acres of
suitable public land. Certainly, there is nothing in
the Carey Act that overcomes the presumption
against statutory grants of the public domain. See
Andrus v. Charlestone Stone Products Co., 436 U.S.
604, 617 (1978).
b. The legislative history of the Carey Act is
entirely consistent with the indications of the text.
Two proposals were considered. The Senate bill
would have “reserved” outright one million acres
for each state, to be selected by the state within
ten years of the bill’s passage. See 26 Cong. Rec.
8388 (1894). This bill was not enacted. The House
proposal, which eventually became the law, made no
grant at all. As Representative McRae, its sponsor,
observed when the House proposal was being con-
sidered on the floor as a substitute for the Senate
bill (26 Cong. Rec. 8391) :
Now, Mr. Speaker, I want to state briefly
what I understand to be the main difference be-
13
tween the two propositions. The Senate propo-
sition makes a reservation outright for the
States and will make it possible for the States
to put a million of acres in each State in
reservation for an indefinite period. It leaves
the question of irrigation to be determined un-
der rules and regulations te be made by the
States themselves. In short, the States will de-
cide whether they have complied with the con-
ditions as to irrigation. The pending proposition
does not make any grant, but only authorizes
the Secretary of the Interior with the approval
of the President to make a contract with any
States in which any of these lands may be situ-
ated for the reclamation of not exceeding a mil-
lion acres in each State, the question of irriga-
tion to be finally determined by the Executive
officers of this Government. No reservation or
withdrawal is permitted except for temporary
purposes until the plan is approved; and no title
is to pass until thorough irrigation is accom-
plished and shown to the satisfaction of the
Interior Department.
In sum, the Carey Act was simply intended to au-
thorize the Secretary to make such grants and thus
enlarges the menu of uses available for public land
use management.’ The Secretary is free, so far
as the Carey Act is concerned, to devote public lands
7 Arguably, a refusal by the Secretary to classify lands for
Carey Act development is final agency action reviewable under
the Administrative Procedure Act, 5 U.S.C. 704. But see
Bronken Vv. Morton, 473 F.2d 790, 795 (9th Cir.), cert. denied,
414 U.S. 828 (1973). At most, however, such a refusal could
be set aside only if it were “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
706 (2) (A).
14
to wholly different uses. The courts below thus erred
in holding that the State was absolutely entitled, one
way or another, to three million acres of land for
Carey Act projects and the Secretary is obliged to
preserve enough desert land for such developments
in each state.*
c. Finally, the long standing and consistent ad-
ministrative interpretation of the Act by the Secre-
tary of the Interior has been that federal acceptance
of a state development contract under the Act is
“wholly within the discretion of the Department”:
It is clear from the terms of the act of
August 18, 1894, * * * that the acceptance of
the offer of the State is a matter wholly within
the discretion of the Department. The filing of
the application is preliminary to the formation
of a contract between the State and the United
States. It is manifest that the formation of such
contract depends upon the acquiescence of both
parties thereto without a right in either to in-
sist upon a proffer or acceptance by the other.
State of Wyoming, 36 Pub. Lands Dec. 399 (1908).
Accord, Yakima Development Co. v. State of Wash-
ington, 34 Pub. Lands Dec. 453, 455-456 (1906).
8 The court did not offer any specific basis for its conclu-
sion that the Secretary is obliged to preserve enough land in
each state for Carey Act development. The court evidently
placed some reliance on this Court’s statement in Jdaho Jrri-
gation Co. Vv. Gooding, 265 U.S. 518, 521 (1924), that “[bly
the Carey Act the United States binds itself to donate” desert
lands to states. This was not even a dictum and was simply
part of a brief statement of the background of Gooding. The
Court in Gooding plainly did not intend to address the issue
presented by our petition.
15
This construction—which has never previously
been questioned in any litigation—by the agency
charged with the principal responsibility for “regu-
lating the acquisition of rights in the publicglands” is
entitled to considerable deference. Andrus v. Charle-
stone Stone Products Co., supra, 486 U.S. at 613-614;
Udall v. Tallman, 380 U.S. 1, 18 (1965) ; Cameron v.
United States, 252 U.S. 450, 460 (1920). Signifi-
cantly, when Congress amended the Act several times
after the Interior Department decisions cited above
were issued, it did not disapprove of Interior’s inter-
pretation. We may conclude that the Secretary was
not violating his statutory mandate. See, e.g., Saxbe
v. Bustos. 419 U.S. 65, 74 (1974); Board of Gover-
nors v. First Lincolnwood Corp., No. 77-832 (Dec. 11,
1978), slip op. 18; United States v. Rutherford, No.
78-605 (June 18, 1979), slip op. 8-9.
2. The decision below will have a severe impact on
the Secretary’s management of public lands. Idaho
has thus far used only .6 million acres of its three-
million acre allotment. The decision below—indeed,
judgment itself—requires the Secretary to insure
that at least 2.4 million acres of arid land “suitable”
for Carey Act development will remain available in
Idaho. This places an intolerable “freeze” on the
public domain, and imposes a severe administrative
burden on the Department of the Interior.
To comply with the judgment below, the Secretary
must undertake a special inventory of the public
lands in Idaho to determine the extent to which 2.4
million acres of “suitable” character are available
16
and to identify and to preserve such land for future
Carey Act projects. Whether an area is “suitable”
depends on soil quality and whether it can ever be
supplied with water. Making such determination nec-
essarily depends largely on speculation concerning
future developments in locating underground sources
of water that may be tapped with available and
future technology. Because such speculation will
doubtlessly involve gross error, much of the land set
aside may never actually be claimed under the Act.
In the meantime, the Secretary will be prevented
from putting the land to what he believes are higher
uses inconsistent with Carey Act development. For
example, the Secretary has received 1,400 pending
applications under the Desert Land Act, 48 U.S.C.
321, which permits an individual to purchase up to
320 acres of “desert land” for $1.25 per acre on the
condition that he irrigate and cultivate it. See Boise
District Agricultural Development Draft Environ-
mental Impact Statement for Southwest Idaho, Bu-
reau of Land Management, Boise District Office at
1-1 through 1-2 (1979) (which discusses these and
other uses of federal land in Idaho). These applica-
tions must be denied to the extent that granting them
would defeat the State’s “entitlement” under the
decision below.
Similarly, under Section 203(b) of the Federal
Land Policy and Management Act of 1976, 43 U.S.C.
1718(b), the Secretary is authorized to convey desert
land of agricultural value “either under the sale au-
thority of this section or in accordance with other
17
existing law.” If the decision below stands, this op-
tion would be drawn into doubt for vast stretches of
public lands, since the land might be needed to satisfy
the State’s Carey Act rights.* Indeed, all other uses
of the land inconsistent with Carey Act development
would be foreclosed—all in frustration of the goals
of FLPMA, which directs the Secretary to develop
land use plans for all public lands in order to insure
that they are wisely used. 48 U.S.C. 1701(a) (1),
1712.
Nor is Idaho the only state where such problems
are presented. In public-land states other than Idaho,
an additional twelve million acres was authorized
for Carey Act development. Of this total, only
approximately .5 million acres have been patented
under the Act. Report of the Director of the Bureau
of Land Management, Statistical Appendix, Table
114 (1952). If the decision below is followed, the
Secretary will be required to identify and set aside
approximately 11.5 million acres of desert land “suit-
able’ for Carey Act development in these states.”
® Even if more than 2.4 million acres of such desert land
exist-in the public domain in Idaho, it is apparent that as the
land is disposed of, or put to uses inconsistent with Carey
Act development, eventually the amount available for develop-
ment under the Act will be reduced below the State’s entitle-
ment, again preventing the Secretary from properly admin-
istering the remaining land.
10 There is no conflict between the decision below and any
decision of any other circuit. All of the land affected by the
decision, however, lies principally within the Ninth Circuit
and all of it lies in either the Eighth, Ninth or Tenth Circuit.
No other litigation concerning the Carey Act is expected in
18
And those 11.5 million acres also must be closed to
all other uses.
Of course, these consequences must be borne if the
law requires it. But we may doubt whether it was
intended that the states embraced by the Carey Act,
having already had eighty-five years to take advant-
age of the statute, are now free to require that sev-
eral million acres be identified and set aside indefi-
nitely, so that, if and when they choose, those states
may, however belatedly, complete selections. In our
submission, no such purpose reasonably can be in-
puted to the Congress of 1894.
the Eighth or Tenth Circuit in the foreseeable future. Accord-
ingly, to wait until a conflict develops before reviewing the
issue would impose an unnecessary and harsh waiting period
of federal land management practices in Idaho and the rest
of the Ninth Circuit. The question presented is of substantial
importance notwithstanding the absence of a conflict.
19
CONCLUSION
The petition for certiorari should be granted.
Respectfully submitted.
WADE H. MCCREE, JR.
Solicitor General
SANFORD SAGALKIN
Acting Assistant Attorney General
LouIs F. CLAIBORNE
Deputy Solicitor General
WILLIAM ALSUP
Assistant to the Solicitor General
JACQUES B. GELIN
EDWARD J. SHAWAKER
Attorneys
AUGUST 1979
la
APPENDIX A
UNITED STATES COURT OF APPEALS
NINTH CIRCUIT
Nos. 77-1800, 77-1517
STATE OF IDAHO ET AL., PLAINTIFFS-APPELLANTS
v.
CECIL D. ANDRUS,* Secretary of the
Interior, DEFENDANT-APPELLEE
April 19, 1979
Appeal from the United States District Court for
the District of Idaho.
Before ELY and KILKENNY, Circuit judges, and
FERGUSON, ** District Judge.
PER CURIAM:
Upon the basis of the carefully written opinion of
Judge Anderson, reported at 417 F.Supp. 873 (1976),
the judgment of the District Court is
AFFIRMED
* Mr. Andrus is now the Secretary of the Interior. He has
been substituted for the original appellee, a then party in his
official capacity. Rule 43(c) Fed.R.App.P.
** Honorable Warren J. Ferguson, United States District
Judge, Central District of California, sitting by designation.
2a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Civil No. 1-75-22
STATE OF IDAHO, ex rel. CEcIL D. ANDRUS, Governor;
R. KEITH HIGGINSON, Director, IDAHO DEPART-
MENT OF WATER RESOURCES; AND THE IDAHO
WATER RESOURCE BOARD, PLAINTIFFS
vs.
THOMAS S. KLEPPE, Secretary of the Interior,
DEFENDANT
MEMORANDUM DECISION AND ORDER
On August 18, 1894, the Carey Act was passed
“granting,” under certain conditions, one million
acres of desert land to the State of Idaho, as well as
other desert land states. 43 U.S.C.A. 641. An addi-
tional two million acres were “granted” the State
of Idaho in 1908. 35 Stat. 577 (May 25, 1908) and
35 Stat. 347, 43 U.S.C.A. 645 (May 27, 1908). On
February 21, 1975, the State of Idaho, ex rel. Cecil
D. Andrus, Governor, R. Keith Higginson, Director
of the Idaho Department of Water Resources, and
the Idaho Water Resource Board filed suit against
the United States Secretary of the Interior, alleging
jurisdiction under the federal question jurisdictional
statute, 28 U.S.C.A. 1331 and under the Adminis-
trative Procedure Act, 5 U.S.C.A. 701. On Septem-
3a
ber 24, 1975, the Idaho Carey Act Development As-
sociation was granted leave to appear in this case
as amicus curiae.
Both plaintiff and defendant have filed motions for
summary judgment, supported by legal memoranda.
The Idaho Carey Act Association has likewise filed
memoranda. A hearing was held April 30, 1976, in
which all issues before the Court were addressed.
The case is submitted and the Court is fully advised
in the premises and hereinafter renders its Mem-
orandum Decision and Order incorporating its Find-
ings of Fact and Conclusions of Law.*
On July 31, 1975, the Interior Board of Land
Appeals rendered its decision affirming a denial of
an application by the Idaho Department of Water
Resources for a temporary withdrawal pursuant to
43 U.S.C.A. 648. Idaho Department of Water Re-
sources, 21 IBLA 210 (1975). The Board rejected
the application on the ground that the lands applied
for had previously been withdrawn for stock-drive-
way purposes.”
1There are no material issues of fact in dispute; rather,
the parties have sought to clearly present issues of law to the
Court. As such, it is appropriate to decide this case on the
basis of cross-motions for summary judgment. Rule 56,
Py. BR. Civ. FP.
2 The Idaho Department of Water Resources had also ap-
plied for land previously withdrawn for reclamation purposes
and for a National Wildlife Refuge. The Department, how-
ever, did not appeal the ruling with regard to land covered by
such withdrawals; rather, the plaintiff has only attacked the
ruling pertaining to stock-driveway withdrawals. It is noted,
4a
Plaintiff’s first cause of action prays for judgment
declaring that the State of Idaho has an absolute
right to demand up to three million acres of desert
lands under the Carey Act and further declaring
that the defendant, through the Bureau of Land
Management, has no authority or discretion to deny
any request for segregation or withdrawal when pre-
sented by the plaintiff. The amicus plaintiffs contend
there are two issues involved in plaintiff’s first cause
of action, namely: (1) whether the State of Idaho
has the right under the Carey Act to request with-
drawal or segregation of lands which have been
previously withdrawn from the public domain or re-
classified by action of the federal executive authority,
and (2) whether the defendant has the right to
withdraw lands from the purview and effect of the
Carey Act after the State of Idaho has identified
such lands as desert lands, selected them, and re-
quested their segregation. See, Wyoming v. United
States, 255 U.S. 489, 41 S. Ct. 398, 65 L. Ed. 742
(1921). The plaintiff and amicus curiae have at-
tempted to present a very broad issue to the Court;
however, this Court can decide only actual cases and
controversies.* To that end the second issue stated
nonetheles, that plaintiff’s argument addresses the nature of
the grant and goes much farther than a mere attack on previ-
ous withdrawals for stock-driveway purposes. Plaintiff at-
tacks any type of previous withdrawal, save on—a with-
drawal for national security or defense.
* The controversy must be one that is appropriate for
judicial determination, it must be definite and concrete,
touching the legal relation of the parties having adverse legal
5a
above and raised by the amicus curiae is not properly
before the Court. While the amicus curiae contend
there are instances where Carey Act requests have
been denied on the basis of prior and subsequent
withdrawals, nevertheless, the only final agency ac-
tion before the Court, as correctly pointed out by
the United States, is the decision in Idaho Depart-
ment of Water Resources, supra. 5 U.S.C.A. 704.
I.
The issue, therefore, is whether the defendant,
Secretary of the Interior, through his representative,
has discretion and authority to deny a State request
for temporary withdrawal of desert lands on the
ground that the lands were previously withdrawn
interests, and it must be real and substantial, admitting of
specific relief through a decree of a conclusive character, as
distinguished from an opinion advising what the law would be
upon a hypothetical state of facts. Aetna Life Insurance Co.
v. Haworth, 300 U.S. 227, 57S. Ct. 461, 81 L. Ed. 617 (1937).
A declaration of rights as they stand must be sought, not on
rights which may arise in the future and there must be an
actual controversy over an issue, not a desire for an abstract
declaration of law. Re Summers, 325 U.S. 561, 65 S. Ct. 1307,
89 L. Ed. 1795 (1945). There is no actual case or controversy
before this Court with respect to denials of Carey Act appli-
cations on the ground of subsequent withdrawal or reclassifi-
cation. The factual matters involved in such denials by the
Secretary of the Interior or the reasoning employed to reach
the result are not known. Further, even if this Court could
hold there was such a case before it, the issue does not arise
in a proper framework, since it does not appear that admin-
istrative remedies have been exhausted. 5 U.S.C.A. 704.
See Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58
S. Ct. 459, 82 L. Ed. 688 (1938).
6a
for stock-driveway purposes. Resolution of the issue
necessarily entails examining the nature of the grant
to the States under the Carey Act. In construing a
statute, the goal, of course, is to determine the legis-
lative intent. Initially, the first inquiry must be the
wording itself. The Carey Act states in relevant
part:
“To aid the public-land States in the reclamation
of the desert lands therein, and the settlement,
cultivation and sale thereof in small tracts to
actual settlers, the Secretary of the Interior with
the approval of the President is, as of August
18, 1894, authorized and empowered, wpon proper
application of the State to contract and agree,
from time to time, with each of the States in
which there may be situated desert lands . . .,
binding the United States to donate, grant and
patent to the State free of costs for survey or
price such desert lands, not exceeding one million
acres in each State, as the State may cause to be
irrigated, reclaimed, occupied, and not less than
twenty acres of each one hundred and sixty acre
tract cultivated by actual settlers, as thoroughly
as is required of citizens who may enter under
the said desert-land law, within ten years from
the date of approval by the Secretary of the
Interior of the State’s application for the segre-
gation of such lands;...
“. .. and the Secretary of the Interior may make
necessary regulations for the reservation of the
lands applied for by the States to date from the
date of the filing of the map and plan of irriga-
tion, but such reservation shall be of no force
7a
whatever if such map and plan of irrigation
shail not be approved.
“Any State contracting under this section is
hereby authorized to make all necessary con-
tracts to cause the said lands to be reclaimed,
and to induce their settlement and cultivation
in accordance with and subject to the provisions
of this section; ...
“As fast as any State may furnish satisfactory
proof according to such rules and regulations as
may be prescribed by the Secretary of the In-
terior, that any of said lands are irrigated, re-
claimed and occupied by actual settlers, patents
shall be issued to the State or its assigns for
said lands so reclaimed and settled: ...” (Em-
phasis added)
The wording of the statute seems quite clear and
it is readily apparent that an in praesenti grant was
not made to the States. Rather, the Act confers upon
the States a right to contract with the United States
under certain prescribed conditions in order to receive
patents for acreages of the public domain. The pur-
pose of the Act, as stated in the first paragraph, is
to aid public-land States in the reclamation of the
desert lands therein, and the settlement, cultivation
and sale thereof in small tracts. The same paragraph
speaks in terms of binding the United States to
donate, grant and patent to the State. However, the
so-called binding donation is preceded, and modified
by language which authorizes and empowers the Sec-
retary of the Interior, upon proper application of the
State, to contract and agree, from time to time, and
8a
approve applications for segregation. The power to
contract is the power to bind the United States to
donate and patent in accordance with a contract,
where the conditions of such contract have been
fulfilled.
The Supreme Court, in Idaho Irrigation Co. v.
Gooding, 265 U.S. 518, 44 S. Ct. 618, 68 L. Ed. 1157
(1924) (dicta) spoke of the grant as follows:
“By the Carey Act the United States binds itself
to donate, grant and patent to a state, complying
with stated conditions, desert lands, which the
state may cause to be irrigated, reclaimed, and
occupied. The state is required to file a map of
the land proposed to be irrigated, showing the
plan of irrigation, etc., and is authorized to make
contracts to cause the lands to be reclaimed, and
to induce their settlement and cultivation. Upon
satisfactory proof the Secretary of the Interior
is directed to issue patents to the state or its
assigns.” 265 U.S. at 521. (emphasis added)
In Twin Falls Salmon River Land & Water Co. v.
Alexander, 260 Fed. 270 (D. C. Idaho 1919), af-
firmed, 267 Fed. 382 (9th Cir. 1920), Judge Dietrich,
speaking for this Court, in dicta stated:
“The primary purpose of the Carey Act was,
not to enable the government to divest itself of
title to its desert lands, but to secure their irri-
gation and reclamation; reclamation is the only
consideration for the donation or grant, and is a
condition precedent to the exercise of the power
to grant. The authority conferred upon the Sec-
retary of the Interior to convey is expressly lim-
9a
ited to desert lands, which the state shall have
caused to be—
‘irrigated, reclaimed, occupied, and not less than
twenty acres of each hundred and sixty acre
tract cultivated by actual settlers . . . as thor-
oughly as is required of citizens who may enter
under the [said] desert land law.’
The Act prescribes a procedure (similar to that
required in the case of a desert land entry) for
the temporary withdrawal of the lands from
private entry, but the preliminary approval of
the project by the Secretary in nowise imposes
upon him or implies an obligation to patent. The
only purpose of the preliminary showing is to
inform him whether the plan is of sufficient ap-
parent merit to warrant a temporary withdrawal
of the lands from other forms of entry.’ 260
F. at 274-275.* (Emphasis added)
The Eighth Circuit Court of Appeals in McKinney v.
Big Horn Basin Development Co., 167 Fed. 770 (8th
Cir. 1909) also addressed the nature of the grant
as follows:
“The underlying purpose of the Acts of Congress
in ceding the vast domain of desert lands within
the territorial limits of the given state was,
through the agency of the state government more
immediately concerned, to speedily have them
reclaimed from an unproductive waste by means
* The language addressing other forms of entry, while dicta,
indicates Judge Dietrich’s view that the Secretary of the
Interior does indeed have the discretion to deny a request
for temporary withdrawal where the land is best withdrawn
for other types of uses, and withdrawals therefor.
10a
of artificial irrigation, whereby they might be-
come susceptible of human sustentation, bring-
ing population and wealth to the state. But
Congress did not make the grant to the state
of such lands in mass to take effect in praesenti.
The state was first to furnish satisfactory evi-
dence to the Secretary of the Interior that the
lands are irrigated, reclaimed, and occupied by
actual settlers before any patent therefor should
issue. It also imposed the condition that the state
should not accord to any one person over 160
acres of said lands.” 167 Fed. at 775 (Emphasis
added )
The language in McKinney v. Big Horn Basin De-
velopment Co. and Twin Falls Salmon River & Water
Co. v. Alexander reflect a view consistent with the
language of the Act and can be read to state that
an outright grant did not occur under the Carey
Act.*®
The legislative history of debate on the Carey
Act reflects a position by the representatives that it
5 The language quoted from the above cases is ditca and
for that reason is not controlling. Notwithstanding the over-
broad language in Idaho Irrigation Co. v. Gooding, an in
praesenti grant of title did not occur under the Carey Act;
rather, in 1894, as this opinion further develops, the States
were given a right of entitlement to contract with the Secre-
tary of the Interior for one million acres of desert land suit-
able for irrigation, cultivation and settlement. The cases
cited, however, do offer some insight with regard to the nature
of the grant, and the thoughts expressed by Judge Dietrich
in Twin Falls Salmon River Land & Water Co. v. Alexander
are in accord with the language of the Act itself and the
legislative history.
lla
was not to be an absolute gift as occurred under the
Swamp Land Act of 1850. United States v. Louisi-
ana, 127 U.S. 182, 8 St. Ct. 1047, 32 L. Ed. 66
(1888). A letter from S. W. Lamoreux, Commis-
sioner, Office of the Secretary of the Interior, was
introduced in the House and indicates the type of
grant anticipated under the Carey Act. The letter,
in part, states:
“The people of the States in which the arid lands
are located would like to see the United States
undertake their reclamation. This is certainly
impracticable now, and it is doubtful whether it
will ever be otherwise. There are those who
think that the arid lands should be given to the
States under certain restrictions. Public senti-
ment would scarcely justify such legislation at
this time. The experience of the United States
and the several States under the swamp-land acts
does not argue in favor of such disposal of the
arid lands .. .”
* * * * *
“The principal proposition involved, reclamation
and settlement by individuals in small holdings,
meets my strong approval, and this bill seems
to me to present full opportunity for the practi-
cal experiment and under proper safeguards.
The United States retains title until reclamation
is accomplished and the land occupied by actual
settlers. This, if successful, is the great object
to be attained; and if unsuccessful the United
States still holds the unincumbered fee.” 26
Cong. Rec. 8390 (1894).
12a
The following passages from the Congressional Rec-
ord amplify the nature of the grant from the view-
points of a supporter of the House bill, as well as
opponents of the same:
“Mr. PICKLER. ... The proposition that is now
before the House is one that has been approved
by the Commissioner of the General Land Office
and I think there can be no objection to it. Gen-
tlemen will remember how sensitive this House
has shown itself from time to time in regard to
making direct appropriations for the irrigation
and reclamation of arid lands. Now, here is a
proposition which costs the Government nothing,
but simply donates these lands to the States, leav-
ing them to bear the burden of irrigation and
reclamation of arid lands. Furthermore, it is
provided that the title to these lands shall not
pass to the States until it is shown to the satis-
faction of the Secretary of the Interior that the
lands have been reclaimed according to law and
the money expended upon them.” 26 Cong. Rec.
8391
* * * * *
“Mr. McRAE. Mr. Speaker, as I have already
stated, I do not approve of legislating in this
way....
“At the suggestion of the conferees on the part
of the House, this substitute for the Senate
proposition was prepared, because they were not
satisfied with that of the Senate. If anything is
to be done at this time it should be carefully
guarded so as to protect the United States
against fraud in the proof of reclamation.
13a
“Now, Mr. Speaker, I want to state briefly what
I understand to be the main difference between
the two propositions. The Senate proposition
makes a reservation outright for the States and
will make it possible for the States to put a
million of acres in each State in reservation for
an indefinite period. It leaves the question of
irrigation to be determined under rules and reg-
ulations to be made by the States themselves. In
short, the States will decide whether they have
complied with the conditions as to irrigation.
The pending proposition does not make any grant,
but only authorizes the Secretary of the Interior
with the approval of the President to make a
contract with any States in which any of these
lands may be situated for the reclamation of not
exceeding a million acres in each State, the ques-
tion of irrigation to be finally determined by the
Executive officers of this Government. No reser-
vation or withdrawal is permitted except for
temporary purposes until the plan is approved;
and no title is to pass until thorough irrigation
is accomplished and shown to the satisfaction of
the Interior Department.” Id.
* * * * *
“Mr. McRAE. If this substitute be adopted it
will only authorize contracts which will lapse in
ten years after their date. It is not a legislative
grant; it does not require any action of Congress
for its forfeiture. It does not even put the land
in a state of reservation until a map is filed and
the plan of irrigation is approved.” Id.
* * * * *
“Mr. CANNON of Illinois. Mr. Speaker, it is
with very much diffidence that I take the floor to
l4a
say anything about the Senate Amendment or
the proposed substitute to this bill. ... I want
to express a doubt, however, about the wisdom
of legislation of this kind upon the sundry civil
or any other appropriation bill.
* * * * *
“But I very much doubt whether the proposed
provision will bear good fruit. I recollect—I do
not recollect, but ali of us know—that in 1850
there was a grant of swamp land to the various
States—Minnesota, Illinois, Arkansas, and all of
the States that had public lands of that charac-
ter. The question presented then was to get rid
of the water in certain sections. This is a propo-
sition to supply the water in certain other sec-
tions.
“Now, I must say that the operations of the
swamp-land grant act was not satisfactory. Great
lots of land were selected, for instance, in my
own State of Illinois, the most valuable agri-
cultural lands we have now, and great claims of
indemnity are still pending in some of the States,
so that that appropriation of land in the main
was worse than wasted—-not properly considered,
not properly guarded.” Id. at 8392.
* * * * *
“Mr. PICKLER. Mr. Speaker, I desire to say,
in reply to the gentleman from Illinois, that for
probably ten or twelve years this matter of irri-
gation in the arid regions has been before Con-
gress, has been discussed, has been talked about,
and we have so far failed to get any legislation
‘ in regard to the matter—an utter failure in
any legislation. Now, this subject is well under-
15a
stood by the House of Representatives. Every-
body knows that the land is lying out there.
They know that it is useless; and everybody de-
sires it reclaimed. It is a very simple proposi-
tion; and the answer to the objection of the
gentleman from Illinois is this: that where this
differs from the swamp-land grants is that the
Government does not grant this at all. The Gov-
ernment only grants it and the State only receives
title to it after it has made its proof that the
land is reclaimed. So this does not pass to the
States as the swamp land passed to the States.”
Id.
“Mr. VAN VOORHIS of New York. If the
States should disregard the restrictions, is there
any remedy?
“Mr. NEWLANDS. I presume there is.
“Mr. PICKLER. This amendment provides that
the lands shall not be ceded to the States until
they have complied with the regulations pre-
scribed by the Secretary of the Interior.” Id. at
8427.
“Mr. McRAE. . . . The Senate amendment is in
my judgment extremely dangerous, and should
not be adopted.
“On yesterday I pointed out some of the objec-
tions to it, but since the gentleman from South
Dakota has abandoned it and is satisfied to adopt
the substitute which I offered, it is not now nec-
essary to discuss it further. I would prefer to
see no legislation at this time and in this way,
but if the question can not be postponed for a
more careful consideration then we should pro-
16a
ceed with 211 the caution and care that is pos-
sible under the circumstances, for the legislation
is important and far reaching. The amendment
does not appear to be understood by some who
have opposed it. It has been likened to the
swampland grant of September 28, 1850.
“That was a grant in presenti and passed the
title as of the date of the grant. This is no
grant at all, but only gives authority to the Sec-
retary of the Interior and President to make
contracts binding the United States to donate
the land to the States when reclaimed. That act
passed the title to the whole of the swamp and
overflowed lands which were unfit for cultivation
and unsold at that time to the States. This
grants nothing and authorizes no conveyance
until reclamation.
“There was no limit to the swamp land grant as
to the area to be taken or the time when it
should be selected. Under this bill the area to
each State is limited to 1,000,000 acres and the
time for reclamation ten years after contract.
Under the swamp land grant the States were
left free to dispose of the lands before reclama-
tion and without any limitation as to the quan-
tity that could be sold to one person. Under this
amendment the States must reclaim the land
before they get it and must provide for its set-
tlement and occupancy by bona fide settlers, and
can not sell exceeding 160 acres to any one per-
son.” Id. at 8431.
While the policy underlying a legislative enactment
normally need not be considered when the meaning
of the act is clear, nevertheless, it does offer insight
17a
into the legislative intent. The Carey Act represents
a deliberate policy change in contradistinction to the
outright grants of the swamp land acts and entrusted
the Secretary of the Interior with broad discretion
through his power to contract with the States.
Administrative interpretation of a statute is an
important construction aid to identify the legislative
intent and is entitled to considerable weight where
the administrative interpretation is close in time to
the pasage of the Act, and has endured the passage
of time. Sunray Mid-Continent Oil Co. v. F. P. C.,
364 U.S. 187, 80 S. Ct. 13892, 4 L. Ed. 2d 1623
(1960). The Department of the Interior held the
view in 1908 that the Carey Act was not an in
praesenti grant, but rather invested the Secretary
of the Interior with discretion to contract with the
end in mind of patenting acreage to the States.
“Tt is clear from the terms of the act of August
18, 1894, supra, under which the application of
the State is filed, that the acceptance of the offer
of the State is a matter wholly within the dis-
cretion of the Department. The filing of the
application is preliminary to the formation of a
contract between the State and the United States.
It is manifest that the formation of such con-
tract depends upon the acquiescence of both par-
ties thereto without a right in either to insist
upon a profter or acceptance by the other. It is
equally clear that when the lands made the sub-
ject-matter of the proposed centract have been
set aside for other purposes, the Secretary of
the Interior, as the authorized representative of
a ee eee
18a
the Government in such matters, is fully war-
ranted in declining to enter into any contract
with the State which would defeat the object
for which the lands were set aside. The State
has no right to insist that he should. As his dis-
cretion is not subject to control by the State, a
hearing for the purpose of determining whether
or not that discretion has been properly exer-
cised can not be demanded by the State. So long
as a withdrawal made by him under authority
of law remains unrevoked the presumption so
far as third persons having no interest in the
land withdrawn are concerned, that his discre-
tion was properly exercised is conclusive, and so
long as such withdrawal remains in force the
land covered thereby is not subject to any claim
of the State under the Carey Act.” State of
Wyoming, 36 L. D. 399-400 (1908).
That an in praesenti grant of title did not occur
under the Carey Act seems quite clear from the lan-
guage of the Act, the legislative history, administra-
tive interpretations, and court interpretations, albeit
dicta. It is likewise clear, however, that the Carey
Act and subsequent enactments conferred upon the
State of Idaho a right of entitlement to three million
acres of desert land suitable for irrigation, cultiva-
tion and settlement. The State is guaranteed a max-
imum entitlement of three million acres of suitable
desert land for Carey Act development to select from
time to time, which it cannot be deprived of by the
Secretary of Interior, if the State meets the condi-
tions of the Carey Act. However, the State may not
perfunctorily select acreage previously withdrawn for
19a
other purposes such as in this case a withdrawal
for stock-driveways. The Secretary is under an obli-
gation to preserve enough desert land suitable for
Carey Act developmefit to fulfill the State’s right of
entitlement, which the Federal Government must
contract to donate to the State in accordance with
the Act. To the extent the land has been withdrawn
for other purposes by the Secretary and the State re-
mains desirous of initiating a Carey Act development
on such acreage, its remedy is to petition the Sec-
retary to reclassify the lands suitable for Carey Act
entry. The Secretary may not arbitrarily deny the
State’s application for reclassification, withdrawal
and Carey Act segregation. The Secretary’s ruling,
once final, is reviewable under the standards set forth
in Bronken v. Morton, 473 F. 2d 790 (9th Cir. 19738),
cert. denied, 414 U. S. 828, 94 S. Ct. 51, 38 L. Ed.
2d 62 (1973), Richardson v. Udall, 253 F. Supp. 72
(D. C. Idaho 1966), and the Administrative Pro-
cedure Act, 5 U.S.C.A. § 706. Such a construction
of the Carey Act is consistent with 43 U.S.C.A. 315f
and its proviso empowering and directing the Secre-
tary to classify the public lands as more valuable or
suitable for certain purposes upon application by a
qualified applicant. See, Bleamaster v. Morton, 448
F. 2d 1289 (9th Cir. 1971). The Court does not
accept the State’s argument that it is absolutely
_ entitled to select any land on the public domain for
Carey Act development, for such a construction does
not comport with the wording of the Act, its legisla-
tive history, other acts of Congress regarding the
20a
public domain, as well as the broad discretion in-
vested in the Secretary of Interior as manager of
the public domain.
II.
The second issue before the Court is whether a hus-
band and wife may make adjoining entries of 160
acres each under the Carey Act and whether a resi-
dence constructed on the dividing line between the
two entries satisfies the settlement requirement of
the Act.
In 1974 the Idaho Legislature amended the State’s
Carey Act in pertinent part as follows:
“For the purpose of any drawing and/or selec-
tion of land for entry under this section or sec-
tion 42-2013A, Idaho Code, a husband and wife
shall be allowed to join their entries and receive
a total of three hundred twenty (320) acres in
one drawing or selection.”’ 42 Idaho Code § 2013
(1974).
Relevant language of the Carey Act provides:
“As fast as any State may furnish satisfactory
proof ... that any of said lands are irrigated,
reclaimed and occupied by actual settlers, patent
shall be issued to the State ...: Provided, That
said States shall not sell or dispose of more than
one hundred and sixty acres of said lands to any
one person...” 43 U.S.C.A. § 641.
On August 29, 1974, the Deputy Solicitor to the
Director of the Bureau of Land Management issued
an opinion which the United States represents is the
final agency position on the matter.
21a
In concluding that Section 2018, Idaho Code, Title
42, is at odds with the legislative purpose and De-
partment of Interior precedent, the Solicitor states
that it is not possible for both a husband and wife
who are not separated to qualify for 160 acres each
since it is presumed that they will share the same
residence and this mutual residence can only be lo-
cated on one 160-acre tract. The underlying reason-
ing of the Solicitor’s opinion is that from the overall
context of the Act, the phrase “any one person” in
the proviso means “actual settler,” as the latter
phrase is used to modify the phrase “‘any one person.”
Based on Department of the Interior precedent, the
term “actual settler” has an established meaning
of “actual resident.” Further, the Solicitor reasons
that “actual resident” means that a family is entitled
to only one 160-acre tract. The Court has no difficulty
accepting the Solicitor’s first step, namely, that an
actual settler is a person who goes upon the land
with the intent of making it his home. United States
v. Atterbury, 10 L.D. 36 (1890), State of Oregon,
36 L.D. 36 (1908). It is most difficult for this Court
to accept the Solicitor’s second step, ie., that the
phrase “actual resident” envisions one family per
160-acre tract, in light of the actual language used
in the statute.
A number of rules of statutory construction were
employed in the first part of this opinion and those
rules are equally applicable here. The wording of
the statute is free from ambiguity as the word “per-
son” is modified by the word “one.” While the word-
22a
ing excludes more than one Carey Act entry per
person, to read the word “person” to mean “family”
or “husband and wife” rewrites the statute.
Since the wording of the Act is free from ambigu-
ity, the legislative history need not be consulted, yet,
in order to gain further insight into the intent, the
Congressional Record may be consulted. The history
does not reveal that a different meaning was in-
tended than the literal meaning of the words used.
The following passages support a literal interpreta-
tion of the statute, and, although the debate reflects
a desire to effectuate development of homes upon the
desert domain, such a desire fails to indicate that a
husband and wife were excluded from making a 160-
acre entry each.
In the House, the Senate Report prepared by Mr.
Carey was read in the record. The report states in
part:
“. . The title is not to pass out of the Govern-
ment until the two chief conditions of the bill
are fully complied with. First, that the lands
shall be fully reclaimed; and second, that the
land shall be settled upon in tracts not exceeding
160 acres to each settler.
* * * * *
“If the States complied with the conditions of
the act, the lands would be reclaimed, settled
upon, and disposed of to actual settlers in small
tracts thereby accomplishing the same purpose
as is contemplated by the homestead laws of the
United States.” 26 Cong. Ree. 8390 (1894)
(Emphasis added)
23a
Commissioner Lamoreux stated, in part, in a letter
introduced in the House:
6 * * * * *
“The bill further provides that when competent
proof is furnished by any State that any of the
lands reserved are reclaimed and occupied by
actual settlers, in tracts not exceeding 160 acres
to each settler, patents shall issue to the State
or its assignees for such lands so reclaimed and
settled in tracts not exceeding 160 acres to each
person,...’’ Id. (Emphasis added)
“Mr. McRAE. ... One of the conditions of
this measure is that not exceeding 160 acres
shall be sold by the State to any one individual.”
Id. at 8391.
* * * * *
“Mr. BRYAN. ... But certainly no one will
object to allowing thes: States to take these
lands, useless to us as a nation, and irrigate
them, make them valuable, and then sell them
to citizens who will establish homes upon them.
This amendment provides that these lands shall
not be disposed of in greater quantities than 160
acres to one person.” Id. at 8419 (Emphasis
added )
* * * * *
“Mr. BRYAN. ... It seems to me, Mr. Speaker,
that this measure gives a promise of very great
good, because the more homes we can establish,
the more independent citizens we can put upon
our lands, the more stable is the Government
under which we live, and the more general will
be our prosperity ...” Id. at 8420 (Emphasis
added )
24a
“Mr. HERMAN. ... Let the bill so protected
be passed, for our people will welcome it as the
best we can secure, and while we are doing this
it behooves us to guard every provision which
otherwise may be construed adversely to the in-
terests of the real beneficiaries for whom this
legislation is had—the home-seeking and home-
deserving people of the United States...” Id.
at 8424 (Emphasis added).
* * * * *
“Mr. ELLIS of Oregon. ... This act, is passed,
does not suspend the desert land act, nor pre-
vent those who desire to take land directly from
the Government from doing so, provided they
comply with the law, rules, and regulations. It
only enables the State to do what the individual
by reason of poverty can not do, and after it
has made the land fertile and the prospect of
obtaining an easy living therefrom, then the man
who could not accomplish the result alone may
come in and purchase for himself and family a
home, his success will be assured, and the State
or General Government will in no sense be losers
... (Emphasis added) Id. at 8425.
* * * * *
“Mr. LUCAS. ... It seems to me that the bill
is explicit and careful in its provisions, guard-
ing all the rights of the Federal Government.
The title can not pass to the State until reclama-
tion is secured and then must be awarded to set-
tlers in 160-acre lots for bona fide homes.” Id.
at 8430 (Emphasis added)
25a
Even if the phrase “any one person” could have dif-
ferent meaning, the Government’s construction is out
of harmony with the rule of construction used by
the Secretary, namely, where words admit of differ-
ent meanings, it would be right to adopt that which
is more favorable to the interests of the public. «J. B.
Raymond, 2 L.D. 854 (1884).
The Secretary relies heavily on Land Decisions
under the Homestead Act. Such decisions hold that
two entries by a husband and wife are precluded by .
the Act and further, that a house constructed on the
dividing line between two tracts will not validate
such entries. Case v. Kupferschmidt, 30 L.D. 91
(1900), Jane Mann, 18 L. D. 116 (1894), Lincoln
v. Gisselberg, 17 L.- D. 215 (1893), William A.
Parker, 138 L. D. 734 (1891), Stella G. Robinson;
12 L. D. 443 (1891), Emma F. Stewart’s Heirs, 12
L. D. 197 (1891), John O. and Miaerva C. Garner,
11 L. D. 207 (1890), Bullard v. Sullivan, 11 L. D.
22 (1890), Thomas E...Henderson, 10 L. D. 266
(1890), L. A. Tavener, 9 L. D. 426 (1889). But
see: Bloom v. Holmes, 44 L. D. 148 (1915), Patrick
Flynn, 39 L. D. 598 (1911), Anderson v. Hillerud,
33 L. D. 3385 (1904), Emily M. Dronberger, 10 L. D.
88 (1890).
The above decisions were issued pursuant to the
Homestead Act and for that reason they cannot be ’
precedent for construing the Carey Act. Each stat-
ute has different wording, and the Secretary has rec-
ognized that the Department’s rulings are controlled
”
26a
by the language used in the act in question.® Selway
v. Flynn, 6 L. D. 541 (1888). In Selway v. Flynn,
which invoived entry by a married woman under the
Desert Land Act, the ruling subject of the appeal
was as follows:
“tT am of the opinion that the desert land act
should be construed with reference to the rela-
tions and disqualifications of coverture at com-
mon law and as it forbids more than one entry
of six hundred and forty acres by one person
that it did not intend that a maried man and
woman should each be allowed an entry there-
under. I am aware that there have been deci-
sions holding to the contrary, but with my views
on the subject, I must decline to follow said
precedents. I therefore sustain your original
decision rejecting Mrs. Selway’s application . . .”
Supra, at 542.
On appeal the Commissioner reached a contrary re-
sult in light of the language of the Desert Land Act:
“T cannot agree with you that the law providing
for the sale of desert lands prohibits the entry
thereunder by a married woman. The statute
provides :—-
‘It shall be lawful for any citizen of the United
States or any person of requisite age who may
be entitled to become a citizen, and who has filed
8 See also: the reasoning and analysis of statutory language
in Delila v. Stukel, 10 L. D. 47 (1890) holding valid an entry
by a married woman under the Timber & Stone Act of 1878
and ruling that such an interpretation was consistent with
construction of the wording used in the Desert Land Act.
27a
his declaration to become such, and upon pay-
ment of twenty-five cents per acre to file a decla-
ration, ete.’
“In the face of these provisions of the statute
I have discovered no good reason for changing
the construction of the law adopted by this De-
partment in former decisions.” Id.’
While residence on the land is not required under the
Desert Land Act, Cow v. Hart, 270 Fed. 51 (9th Cir.
1921), affirmed, 260 U.S. 427, 48 S. Ct. 154, 67 L.
Ed. 332 (1922), that does not command a different
result for it is the wording and its clear meaning of
the Carey Act which is controlling. To the extent
that the rulings previously referred to under the
Homestead Act were premised on a presumption that
a wife’s residence is that of her husband, it is notable
that Idaho, by Section 2013, Idaho Code, Title 42, has
seen fit to permit both husband and wife to make
entry.° More importantly, to premise a denial of
the right to make an entry upon such a presumption
would, as has previously been stated, flout the lan-
guage of the Carey Act.
7On September 30, 1910, the Department of the Interior
issued a circular as follows:
“Thus, a woman, whether married or single, who pos-
sesses the necessary qualifications, can make a desert-
land entry, and, if married, without taking into con-
sideration any entries her husband may have made.”
39 L.D. 253 (1910)
8 To deny either a husband or wife the right of entry on
the ground that either has previously made an entry may
have constitutional ramifications; however, that issue is not
addressed in this Memorandum Decision.
28a
This Court is not aided in this part of the Memor-
andum Decision by a contemporaneous opinion of the
Department of the Interior at the time of passage
of the Act; rather, the Department has relied upon
precedent from other acts which are not controlling.
All total, it follows under the language of the Carey
Act, legislative history, as well as Department con-
structions of acts with closely-similar language, that
a husband and wife are each entitled to make a 160-
acre entry.
This court is of the view that since a husband and
wife are entitled to make adjoining entries under the
Carey Act of 160 acres each, that a house on the
dividing line between the adjoining tracts satisfies the
settlement and residency requirement. It is not con-
tested that an actual residence on the tract is re-
quired. To require a husband and wife to divide their
home by a breezeway or the like, or to construct
separate residences on each tract would cause dis- |
utility. Such an economic restraint may well pro-
hibit settlement in conflict with the intent of the
Act. To impose such a restriction strikes this Court
as an illogical selection of form over substance.
Moreover, construction of a house on the dividing
line is permitted under case law and satisfies the
residence requirement. Silver v. Ladd, 74 U.S. 219,
19 L. Ed. 188 (1869), following, Lindsey v. Hawes,
67 U.S. 554, 17 L. Ed. 265 (1863); see also: George
T. Burns, 4 L. D. 62 (1885), So. Pac. R. R. Co. v.
Rahall, 3 L. D. 321 (1885), Wright v. Woods, 1
C.L.L. 304 (1875).
29a
The defendant’s motion for summary judgment is
GRANTED as to the issue in Part I of this decision.
The decision of the Interior Board of Land Appeals
(21 IBLA 210) is AFFIRMED as stated in Part I of
this decision.
The plaintiffs’ motion for summary judgment as
to the issues discussed in Part II of this decision is
GRANTED.
Within five (5) days from the date of receipt of a
copy of this Memorandum Decision and Order, coun-
sel for each of the parties will prepare and submit
to the court a proposed summary judgment effectuat-
ing this decision and order.
DATED this 15th day of July, 1976.
/s/ J. Blaine Anderson
J. BLAINE ANDERSON
United States District Judge
30a
APPENDIX C
UNITED STATES DEPARTMENT
OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
INTERIOR BOARD OF LAND APPEALS
4015 Wilson Boulevard
Arlington, Virginia 22203
IDAHO DEPARTMENT OF WATER RESOURCES
IBIA 75-357 Decided July 31, 1975
Appeal from the decision of the Idaho State Office,
Bureau of Land Management, partially rejecting an
application for a temporary withdrawal of lands for
proposed development under the Carey Act of 1894.
Affirmed.
1. Act of March 5, 1910—Act of August 18, 1894
(Carey Act)—State Selections—Withdrawals
and Reservations: Stock-driveway Withdraw-
als
An application filed by a State under the Act
of March 5, 1910, for a temporary withdrawal
of lands to aid in the selection of the lands for
proposed development under the Carey Act of
1894 must be rejected where the lands are with-
drawn for stock-driveway purposes, and can-
not be suspended pending consideration of a
petition for reclassification of the lands as
suitable for selection under the Carey Act.
2. Act of March 5, 1910—Act of August 18, 1894
(Carey Act)—State Selections—Withdrawals
e
Anse mention 2 stilinns
3la
and Reservations: Stock-driveway Withdraw-
als
A grant of lands to a State under the Carey
Act of 1894 is not a grant in praesenti, vesting
title to any particular lands as of the time of
passage of the act or by relation back upon
fulfillment of the conditions imposed by the act,
but the allowance or rejection of an application
by a State under the Act of March 5, 1910, for
a temporary withdrawal of lands to aid in the
selection of the lands for proposed development
under the Carey Act is a matter wholly within
the discretion of the Department; and where
the lands sought to be selected by the State are
embraced within a stock-driveway withdrawal
made by the Secretary of the Interior under
authority of law, they are not, so long as such
withdrawal remains in force, subject to any
claim of the State under the Carey Act.
APPEARANCES: Nathan W. Higer, Esq., Office of
the Attorney General, State of Idaho, Boise, Idaho,
for appellant; Riley C. Nichols, Esq., Office of the
Solicitor, U.S. Department of the Interior, Boise,
Idaho, for appellee, Bureau of Land Management.
OPINION BY ADMINISTRATIVE
JUDGE LEWIS
The State of Idaho through its Department of
Water Resources filed an application pursuant to the
Act of March 15, 1910, 43 U.S.C. § 643 (1970), for
the temporary withdrawal of some 27,400 acres of
land for proposed development under the Carey Act
EEE SSSS SE TET, CT a
32a
of 1894, 43 U.S.C. §§ 641 et seg. (1970), by the Lake
Side Irrigation Project.
The Carey Act of 1894 reads, in applicable part:
To aid the public-land States in the reclama-
tion of the desert lands therein, and the settle-
ment, cultivation and sale thereof in small tracts
to actual settlers, the Secretary of the Interior
with the approval of the President is * * * au-
thorized and empowered, upon proper applica-
tion of the State to contract and agree, from
time to time, with each of the States in which
there may be situated desert lands as defined by
the * * * [desert-land law, 43 U.S.C. §§ 321 et
seq.] binding the United States to donate, grant
and patent to the State free of cost for survey
or price such desert lands, not exceeding one
million acres in each State, as the State may
cause to be irrigated, reclaimed, occupied, and
not less than twenty acres of each one hundred
and sixty acre tract cultivated by actual settlers,
as thoroughly as is required of citizens who may
enter under the said desert-land law, within ten
years from the date of approval by the Secretary
of the Interior of the State’s application for the
segregation of such lands; and if actual con-
struction of reclamation works is not begun with-
in three years after the segregation of the lands
or within such further period not exceeding
three years, as shall be allowed by the Secretary
of the Interior, the said Secretary of the Interior,
in his discretion, may restore such lands to the
public domain; * * *.
33a
The Act of March 10, 1910, supru, authorized tem-
porary withdrawals upon application by the states
to aid in carrying out the purposes of the Carey Act.’
By decision of January 24, 1975, the Idaho State
Office, Bureau of Land Management (BLM), re-
jected the application in part because some of the
lands are embraced in various withdrawals and are
not available for selection under the Carey Act, in-
cluding the following-described lands which are with-
drawal for stock-driveway purposes under Stock
Driveway No. 25 by order issued on August 18, 1955:
T.95%., R. 25 E., B.M., Sees. 18, 14, 15, 24, 25
T.958S., R. 26 E., Secs. 19, 20, 21, 22, 28, 24, 25
T.9S., R. 27 E., Secs. 27, 28, 29, 30
The Idaho Department of Water Resources ap-
pealed to this Board only from that part of the de-
cision which rejected the above-described lands in-
cluded in the stock driveway withdrawal.” At the
1 We note that the regulations pertaining to the Carey Act
were last published in 43 CFR 2222.6-2222.6-6 (rev. Janu-
ary 1, 1970), these pertaining to temporary withdrawals
under the 1910 act being 43 CFR 2222.6-2. These sections,
among others, were deleted by an order in 1970 as unused
or obsolete. See 35 F.R. 3072.
2 Thus, the decision has become final as to its rejection of
the following-described lands for the reasons given:
“Withdrawn for Reclamation Purposes for the Minidoka
Project:
T.9S., R. 25 E.
Sec. 12, All;
Sec. 15, W 1/2 NW 1/4;
Sec. 28, NE 1/4 NE 1/4SW 1/4.
[Footnote continued on page 34a]
34a
same time that it filed its statement of reasons for
appeal, appellant also filed with the Board a petition
by the Lake Side Irrigation Project Association under
section 7 of the Taylor Grazing Act, 43 U.S.C.
§ 315f (1970), for reclassification of these lands in
the stock-driveway withdrawal as suitable for use
under the Carey Act.
[1] In its first point on appeal, the appellant
argues that its application for a temporary with-
drawal of the lands withdrawn for stock-driveway
purposes should have been suspended, and not re-
jected, pending a decision on the petition filed with
this Board for reclassification of the lands as suitable
for disposition under the Carey Act.
Although this contention may seem plausible at
first glance, it is not tenable under the regulations.
43 CFR 2313.1(c) of the stock-driveway regulations
provides that:
2 [Continued]
T.9S., R. 27 E.,
Sec. 20, N 1/2.
“Withdrawn for the Minidoka National Wildlife Refuge
by Executive Order 8600:
T.958., R. 27 E.,
Sec. 20, N 1/2.
“The following described lands are included in State Ex-
change application I-8154. In accordance with the regula-
tions of 43 CFR 2091.2-3, these lands are segregated from
appropriation under the public land laws:
T.9S., R. 25 E.,
Sec. 33, SE 1/4 NE 1/4, SE 1/4;
Sec. 34,8 1/2 SW 1/4, SE 1/4;
Sec. 35, S 1/2.”
35a
Lands withdrawn for driveways for stock
* * * are not subject to entry or disposition, and
applications for the acquisition of lands so with-
drawn will be rejected by the authorizing officer.
* * *
Therefore, BLM properly rejected appellant’s appli-
cation. The rejection of the application was also man-
dated by general regulation 43 CFR 2091.1 which
provides in pertinent part that:
* * * applications which are accepted for filing
must be rejected and cannot be held pending
possible future availability of the land or inter-
ests in land, when approval of the application
is prevented by:
(a) Withdrawal or reservation of lands
* * *
Furthermore, the Department has consistently held
that an application for withdrawn lands must be re-
jected, and it is impermissible to hold the application
in suspense until the land may become available.
Juan N. Menchaca, 14 IBLA 212 (1974); Robert M.
Ford, 4 IBLA 321 (1972); Reed L. Adams, A-30950
(October 16, 1968).
Accordingly, the application must be rejected and
cannot be suspended pending consideration of the
petition for reclassification of the lands as suitable
for selection under the Carey Act.
With respect to appellant’s second argument on
appeal, appellee’s answer to appellant’s statement of
reasons on appeal ably and correctly discusses the
facts and the applicable law, with which we agree.
36a
Accordingly, we adopt appellee’s discussion as here-
inafter set out in toto.
[2] In Appeal Point No. 2, appellant argues, in
effect, that the State’s right to segregate and with-
draw land under the Carey Act of 1894, as amended,
vested at the time of passage of the Act and, there-
fore, takes precedence over subsequent withdrawals
and other uses which the Secretary may consider
more appropriate. The argument assumes that the
Carey Act grant was a grant in praesenti and that
the Secretary has no discretion in deciding whether
or not to withdraw and segregate particular lands
when requested to do so by a qualified State. These
assumptions are contrary to the language of the
statute and Departmental and judicial precedents.
Thus, the statute is couched in discretionary lan-
guage, authorizing and empowering—not requiring—
the Secretary to contract and agree with the states
to donate, grant, and patent lands. The discretionary
nature of the Carey Act was discussed in State of
Wyoming, 36 L.D. 399, 399-400 (1908), as follows:
It is clear from the terms of the act of August
18, 1894, supra, under which the application of
the State is filed, that the acceptance of the offer
of the State is a matter wholly within the dis-
cretion of the Department. The filing of the ap-
plication is preliminary to the formation of a
contract between the State and the United States.
It is manifest that the formation of such con-
tract depends upon the acquiescense of both par-
ties thereto without a right in either to insist
upon a proffer or acceptance by the other. It is
a
37a
equally clear that when the lands made the sub-
ject-matter of the proposed contract have been
set aside for other purposes, the Secretary of the
Interior, as the authorized representative of the
Government in such matters, is fully warranted
in declining to enter into any contract with the
State which would defeat the object for which
the lands were set aside. The State has no right
to insist that he should. As his discretion is not
subject to control by the State, a hearing for the
purpose of determining whether or not that dis-
cretion has been properly exercised can not be
demanded by the State. So long as a withdrawal
made by him under authority of law remains
unrevoked the presumption, so far as third per-
sons having no interest in the land withdrawn
are concerned, that his discretion was properly
exercised is conclusive, and so long as such with-
drawal remains in force the land covered there-
by is not subject to any claim of the State under
the Carey Act.
With respect to the nature of the grant contem-
plated by the Carey Act, as amended, it is clear
from the language of the Act that the grant was not
intended as a grant in praesenti, vesting title to any
particular lands as of the time of passage of the Act
or by relation back upon fulfillment of the conditions
imposed by the Act. Thus, the Act merely authorizes
the Secretary to contract in the future with the vari-
ous states to grant them a maximum quantity of
desert lands upon the fulfillment of certain condi-
tions. The Act does not use the phrase “hereby
granted” which Congress would have inserted had it
88a
intended the grant to be one in praesenti. Further-
more, the courts and the Department have consistent-
ly held that the Carey Act was not intended as a
grant in praesenti.®
Therefore, pursuant to the authority delegated to
the Board of Land Appeals by the Secretary of the
Interior, 43 CFR 4.1, the decision appealed from is
affirmed and the case is returned to the BLM for
initial consideration of the petition for reclassification
of the lands in the stock-driveway withdrawal, and
for further action on the remaining lands in the
application for temporary withdrawal.
/s/ Anne Poindexter Lewis
ANNE POINDEXTER LEWIS
Administrative Judge
We concur:
/s/ Frederick Fishman
FREDERICK FISHMAN
Administrative Judge
/s/ Martin Ritvo
MARTIN RITVO
Administrative Judge
3’ E'.g., McKinney v. Big Horn Basin Development Co., 167
Fed. 770 at 775 (8th Cir. 1909); State ex rel. Armington V.
Wright, 44 Pac. 89 at 92 (Mont. 1896) ; Carey Act Selections,
48 L.D. 160 (1921). Cf. State of Wyoming, 36 L.D. 399
(1908).
39a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Civil No. 1-75-22
STATE OF IDAHO, EX REL. CECIL D. ANDRUS, Gover-
nor; R. KEITH HIGGINSON, Director, IDAHO DE-
PARTMENT OF WATER RESOURCES; AND THE IDAHO
WATER RESOURCE BOARD, PLAINTIFFS
=
THOMAS S. KLEPPE, Secretary of the Interior,
DEFENDANT
AMENDED SUMMARY JUDGMENT
This matter was heard by the court on April 30,
1976, on cross-motions for summary judgment and
again on August 26, 1976, on defendant’s motion for
clarification and reconsideration following the entry,
on July 15, 1976, of the court’s Memorandum Deci-
sion and Order. All parties and amicus curiae ap-
peared by their respective counsel at both hearings
and the court having fully considered and reconsid-
ered the records, files, briefs and all oral arguments,
and there being no genuine material issues of fact,
summary and deciaratory judgment was entered on
August 27, 1976. By subsequent orders of the court
entered on September 4 and November 15, 1976, the
judgment was amended to correct particular over-
sights, thereby conforming the judgment to the in-
40a
tent of the court. The amended judgment is entered
reflecting all oversight corrections as follows:
IT Is HEREBY ORDERED and ADJUDGED
that plaintiffs’ prayer for a declaration that they have
an absolute right to demand three million acres of the
public domain (as reduced by prior patents issued
pursuant to the Carey Act) without any regard to
previous classifications and withdrawals made by de-
fendant, acting pursuant to lawful authority, is
DENIED, and the decision of the Interior Board of
Land Appeals (21 IBLA 210) is AFFIRMED.
IT IS FURTHER ORDERED, ADJUDGED and
DECLARED HEREBY, that plaintiff, State of Idaho,
by reason of the expressed Congressional purposes
and the terms and conditions of the Carey Act, is
entitled to have withdrawn and patented three million
acres of the desert lands in the public domain (as
reduced by prior patents issued pursuant to the Carey
Act) situate in the State of Idaho for entry under
said Act, providing that there are sufficient lands of
such kind, quality and character within the State of
Idaho, and providing that the State of Idaho satisfies
all of the terms and conditions of said Act so as to
entitle it to contract with the defendant, acting for
the United States of America, in order to carry out
the expressed purposes of said Carey Act.
That by reason of the expressed Congressional pur-
poses and the terms and conditions of the Carey Act,
the United States of America, acting by and through
the defendant, has bound itself to contract, donate,
RN Sam Hi re ~ aw Se ee
4la
grant and patent to the State of Idaho, upon com-
pliance with the stated conditions, desert lands, which
the State may cause to be irrigated, reclaimed and
occupied by actual settlement, but not to exceed three
million acres, as that sum may be reduced by prior
patents issued pursuant to the Carey Act.
IT IS FURTHER ORDERED, ADJUDGED and
DECLARED HEREBY that as to desert lands re-
maining in the public domain presently withdrawn
by the defendant for other purposes, and where the
State of Idaho determines that it desires to initiate
a Carey Act development on such lands, the State’s
remedy is to petition the defendant for temporary
withdrawal under 48 U.S.C. Sec. 643 and/or under
43 U.S.C. Sec. 315f, and it is the duty of the defend-
ant to entertain and act upon said petition or peti-
tions in accordance with the public land laws of the
United States of America and in accordance with
due and proper administrative procedures.
IT IS FURTHER ORDERED, ADJUDGED and
DECLARED HEREBY, that:
(1) Each person is entitled to enter 160 acres and
not just 160 acres for each family unit, and
(2) A single family residence built on the common
boundary line between entries of a husband and wife
shall satisfy the residence and actual settlement for
both 160 acre entries, as required by the Carey Act.
The motion of defendant for clarification or recon-
sideration is DENIED.
Each party shall bear its own costs.
42a
DATED this 15th day of November, 1976.
/s/ J. Blaine Anderson
J. BLAINE ANDERSON
United States Circuit Judge
Sitting By Designation
adipnaten — _
ne near noe Cu ala =
EIN Pe aa .
Mt te
43a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DC #1-75-22JBA
No. 77-1300
No. 77-1517
STATE OF IDAHO, APPELLANT
Vv.
CECIL D. ANDRUS, SECRETARY OF THE INTERIOR,
APPELLEE
April 19, 1979
Appeal from the United States District Court for
the District of Idaho.
This cause came on to be heard on the transcript
of the record from the United States District Court
for the District of Idaho and was duly submitted.
On consideration whereof, it is now here ordered
and adjudged by this Court that the judgment of
the said District Court in this cause be and hereby
is affirmed.
WX ou. S. GOVERNMENT PRINTING orrice; 1979 298683 s2
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.