Memorandum for Respondent — Delaware Valley Conservation Ass'n v. Resor

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a the Supreme Gourt of the Winted Sing

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‘No. 378. s eg

DELAWARE VatiEy ectiinaiuibn ASSOCIATION — AND

604 ADDITIONAL. INDIVIDUAL PLAINTIFFS, PETITIONERS

Vv.

Strantey R. Resor, INDIVIDUALLY AND AS SECRETARY

OF THE: DEPARTMENT OF THE ARMY OF THE Untrep _

STATES or America, Stewart L. UpaLt, INvIVIDU-

-ALLY AND AS SECRETARY OF THE INTERIOR OF - THE

Untrep Stes’ oF AMERICA, AND W. F..Cassipy; In-

DIVIDUALLY AND AS Curr oF ENGINEERS OF THE

DEPARTMENT OF THE ARMY OF THE UNITED Tm) SEAERG « OF

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ON PE’ ZITION FOR A WRIT OF OBRTIORARI TO THE UNITED .

SPATES COURT OF APPEALS FOR THE THIRD OIROUIT

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. MEMORANDUM FOR RESPONDENTS IN OPPOSITION

Dinitianers. instituted this action to’ enjoin the gov-

ernment from proceeding with the development of the

Tocks ° Island. Reserveir Project and the Delaware

_. Water Gap National Recreation Area. The Reservoir

Project was: authorized by Congress in .1962 and was

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- 810-002—68 93

Fas ape nnaiion fava ied: Stk AIRE NI 5g WW oe 85K ns

2

designed to includé facilities for water consérvation eo

_ and supply, flood control; recreation, and hydroelee-

. trie -power, at an estimated. cost. of $192,400,000.

Section 203, Flood Control Act of 1962, 76 Stat. 1180-

1182. The Recreation. Area was authorized in- 1965 as

an integral ‘part of the Reservoir. Project. Act of Sep- -

: tember™ 1, 1965, 79 Stat. 612. The outlines of both.

~~ projects were “expressly approved by Congr ess in. /

these statutes. Based upon. initial “appropriations,

_ there have been some purchase negotiations, and some’

: condemnation actions have been filed in the United

States District Court for the Eastern and Middle

Districts of Pennsylvania and for the District of N ew

- Jersey.’ 3

» hon ‘respondents’ nation, the district court. Siaminned

. petitioners’ action ‘on jurisdictional grounds. 269 F.

Supp. 181. In an opinion reported at 392 F. 2d 331,

the Court of Appeals affirmed (Pet. App. A). .

- The dismissal of petitioners’ complaint was clearly’

_ correct because the action constitutes an effort to en- |

join the United States ‘without its consent. See Lar-

. 1 Petitioners are mistaken in sugguiiing that ‘Congress yee

quired that. acquisitions for the dam‘ and reservoir should |

precede acquisitions ‘for the Recreation Area at in stating

that no funds have been made available for the dam a reservoir _

features and acquisitions. There is no such. statutory order of

priority. See Act of September 1, 1965, 79 Stat. 612-614; De-

partment of the Interior and Related Agencies Appropriation

Act, 1967, 80 Stat. 170, 178; Act of August 12, 1968, Public

Law 90-479, 82 Stat. 705; Heari Part I, House Subcom-

mittee of the Committee on Appropriations, Public Works Ap-

propriations for 1968, 90th Cong., 1st Sess. (1967), pp. 312-319.

Negotiations and announcements regarding acquisition timing and

plans are directed. by Sections 301-and 302, Land Acquisition

Policy Act of 1960, 74 Stat. 502-503, 38 U.S.C. 596 and 597.

Foor a5 B- es a

- son v. Domestic & Foreign Corp., 337 U.S. 682; Ma-

lone v. Bowdoin, 369 U.S. 643; Dugan v. Rank, 372° |

U.S. 609; arid Hawaii y. Gordon, 373 U.S. 57. As the

courts below conchided, ‘the relief sought’ by. peti-

tioners would stop the government in its tracks and .

interfere with the public administration. It is alsoclear .

-that the officers have acted within the limits of their

statutory authority and that the legislation is constitu--

-tioftally valid.” The statutes petitioner® claim have been

violated are. inapposite (Pet. 4-5; Pet.’ App. A) and”

petitioners admit that the federal officials hAve acted |

“within the scope of their employment” (Pet. App. ‘B,

1-7): .

| Dismissal was also proper. because petitioners do ar

presenta justiciable ease or controversy. At the time

the district court ‘passed on the complaint it was not

certain how and which petitioners would ‘be affected

by the projects; the complaint was couched i in terms -

of assumed potential invasions of property. That un-

certainty remains in large measure., . Those ‘petitioners

‘whose property has now been condemned have a remedy

in the. condemnation actions. United States ex rel.

‘T.V.A.. v.. Welch, 327 U.S. 546, 554-555; United.

States v. Miller, 317 U.S. 369, 373. Other petitioners

whose property has not been taken (and may never .

be taken) are seeking premature declarations. Art- s

2 United States v. Chandler-Dunber Co., 229 US.. 53, 62-64;

United States v. Appalachian Power Co., 311 U.S. 377, 426; °

Arizona Vv. California, 283 U.S. 423, 456; Berman v. Parker,

- 848 U.S. 26, 33-36. Of course petitioners’ meritless allegations _

of unconstitutional conduct were neither admitted-as true nor _

‘did they require. trial or leave to amend, as observed by the

court of appeals. See Land v. Dollar, 330 U.S. 731, 735, note 4.

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Zona V. California, 283. U. S. 423, 463-464. If snd ine.

their lands are ‘taken, they, too, shall have an appro- -

_ ‘priate remedy. If formal condemnation proceedings

aré not instituted by. the government, their remedy is —

ie age to the- “Tucker Act; 28 U.S.C. . 1346(a) ‘and 7

491 Injunctive relief is thus eneonaniy: sieraiss v.

: Rank, 372 U.S. 609, 611, 619-626. . - i

; The eee for a. Wet of certiorari should be

denied.

| Respectfully submitted. - .

| . .Erwin N. Griswow, |

- ve, Solicitor General. ge (

‘Supremper 1968. 0 a

a ane ine

6.8. GOVFRNMERT PRINTING OFFICE: 1968