Petition for Writ of Certiorari — Sierra Club v. Morton

Supreme Court brief1973

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CLUB AND CITIZENS FoR CLEAN Air AND WATER,

= F etitioners —

Rogers C. B. MorTON, SECRETARY OF INTERIOR, ET AL.,

: a “tab

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Bruce J. TERRIS

SUELLEN T. KEINER

= 1908 Sunderland Place, N.W.

aS ; Washington, D.C. 20036

JAMES W. MOORMAN

311 California Street, Suite $11

Epa Prune Co. . inc. « Re 7-6002 - Waewmeron. B. C. BOO

TABLE OF CONTENTS

OPINIONS BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTES AND REGULATIONS INVOLVED ....... 2

STATEMENT

REASONS FOR GRANTING THE WRIT...............

CONCLUSION 18

TABLE OF AUTHORITIES

Cases:

Adams Vv. Witmer, 271 F.2d 29 (C.A. 9, 1958)... 10, 16

A. G. Schoonmaker Co., Inc. v. Resor, 319 F. Supp.

933 (D. D.C., 1970) 16

Arizona ex rel. Arizona State Board of Public

Welfare v. Hobby, 221 F.2d 498 (C.A. D.C.,

1954) 15

Blackmar Vv. Guerre, 342 U.S. 512 (1952) —........ 15

Boesche v. Udall, 303 F.2d 204 (C.A. D.C., 1962), f

affirmed, 373 U.S. 472 14 $

Brennan v. Udall, 379 F.2d 803 (C.A. 10, 1967), t

certiorari denied, 389 U.S. 975 11,17 2

Cape May County Chapter Inc. v. Macchia, 320 F. 5

Supp. 405 (D. N.J., 1971) 10 7

Chournos V. United States, 335 F.2d 918 (C.A. 10, t

1964) 17 .

Citizens to Preserve Overton Park, Inc. v. Volpe, :

401 U.S. 402 (1971) 9 ;

Coalition for United Community Action v. Romney,

316 F. Supp. 742 (N.D. Ill., 1970) 17 '

Coleman v. United States, 363 F.2d 190 (C.A. 9, }

1966), reversed on other grounds, 390 U.S. 599 4

Cotter Corp. v. Seaborg, 370 F.2d 687 (C.A. 10, 4

1966) 17 ¢

TABLE OF AUTHORITIES—Continued

Cyrus v. United States, 226 F.2d 416 (C.A. 1,

1955)

Dugan Vv. Rank, 372 U.S. 609 (1963) .....................-.-

Environmental Defense Fund, Inc. v. Corps of

Engineers, 324 F. Supp. 878 (D. D.C., 1971)...

Estrada v. Ahrens, 296 F.2d 690 (C.A. 5, 1961)...

General Motors Corp. v. Volpe, 321 F. Supp. 1112

(D. Del., 1970)

Izaac Walton League Vv. St. Clair, 313 F. Supp. 312

(D. Minn., 1970)

Kletschka v. Driver, 411 F.2d 436 (C.A. 2, 1969) ..

Knox Hill Tenant Council v. Washington, 448 F.2d

1045 (C.A. D.C., 1971)-.

Krawez v. Stans, 306 F. Supp. 1230 (E.D. N.Y.,

ROT Rae See ice

LaRaza Unida v. Volpe, 337 F. Supp. 221 (N.D.

Cal., 1971)

LaRue v. Udall, 324 F.2d 428 (C.A. D.C., 1963),

certiorari denied, 376 U.S. 907

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1948)

Lewis v. Hickel, 427 F.2d 673 (C.A. 9, 1970) -........

Littell v. Morton, 445 F.2d 1207 (C.A. 4, 1971) -....

Malone v. Bowdoin, 369 U.S. 643 (1962) ..............

McKay v. Wahlenmaier, 226 F.2d 35, (C.A. D.C.

1955)

McNeil v. Seaton, 281 F.2d 931 (C.A. D.C., 1960)..

Motah v. United States, 402 F.2d 1 (C.A. 10,

1968)

Mulry v. Driver, 366 F.2d 544 (C.A. 9, 1966)........

National Forest Preservation Group Vv. Butz, 343

F. Supp. 696 (D. Mont., 1972)

National Helium Corp. v. Morton, 326 F. Supp. 151

(D. Kans., 1971), affirmed, 455 F.2d 650 (C.A.

10, 1971) .

Parker v. United States, 448 F.2d 793 (C.A. 10,

1971), certiorari denied, 405 U.S. 989 -............

8,9

10, 17

8,9

13, 14

10, 16

Ill

TABLE OF AUTHORITIES—Continued

Page

Powelton Civic Home Owners’ Ass’n V. Depart-

ment of Housing and Urban Development, 284

F. Supp. 809 (E.D. Pa., 1968) 16

Ragland v. Mueller, 460 F.2d 1196 (C.A. 5, 1972)... 10

Scanwell Laboratories Inc. v. Shaffer, 424 F.2d

859 (C.A. D.C., 1970) 15

Schroeder Nursing Care, Inc. v. Mutual of Omaha

Ins. Co., 311 F. Supp. 405 (E.D. Wis., 1970) _... 16

Twin Cities Chippewa Tribal Council v. Minnesota

Chippewa Tribe, 370 F.2d 529 (C.A. 8, 1967) .... 17

Washington v. Udall, 417 F.2d 1310 (C.A. 9,

1969) 16

Statutes and Regulations:

5 U.S.C. 706 3, 14, 15 :

16 U.S.C. 476 et seq. 14

16 U.S.C. 668aa to 668bb 2, 6, 7,8 :

16 U.S.C. 668dd 2, 5, 6, 12 :

16 U.S.C. 701 2,7,8 :

16 U.S.C. 742a-742b 2,7,8 :

28 U.S.C. 1254(1) 2 '

30 U.S.C. 22 14 é

30 U.S.C. 161 14 :

30 U.S.C. 181 et seq. 14 é

30 U.S.C. 226 14 :

30 U.S.C. 351 et seq. 14 a

43 U.S.C. 315 et seq. 13 F

43 U.S.C. 161. 14 :

43 U.S.C. 218 14 :

43 U.S.C. 291 et seq 14 ;

43 U.S.C. 315-315r 14 f

43 U.S.C. 1165 a 14 :

43 U.S.C. 1171 | 14

43 C.F.R. 2204.2-1 3

ees E iT gion

oor ESO Kila ed — 2

IN THE .

Supreme Court of the United States

OCTOBER TERM, 1972

No.

SIERRA CLUB AND CITIZENS FOR CLEAN AIR AND WATER,

Petitioners

ROT ARERR, PRA LEG? EE Red RTI REEN ONE LY ARIEL Tee a

RoGERS C. B. MORTON, SECRETARY OF INTERIOR, ET AL.,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Sixth Circuit.

OPINIONS BELOW

Neither the opinion of the United States Court of

Appeals for the Sixth Circuit (App. A, pp. 16-41) nor

the memorandum opinion and order of the United States

District Court for the Northern District of Ohio (App.

A, pp. 1-15) has been reported.

EE SSR EE NI ET Eee ee :

ALAR eT HOT tT

JURISDICTION

The judgment of the court of appeals (App. A, p. 42)

was entered on September 22, 1972. Petitioners’ motion

for rehearing en bane was denied on October 26, 1972

(App. A, p. 44). The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether a suit to review actions taken by federal

Officials is barred whenever the officials have general

authority to take the action even though the complaint

alleges that the action was taken in violation of specific

federal statutes and was arbitrary, capricious, and an

abuse of discretion.

2. Whether suit against federal officiais to recover a

portion of a National Wildlife Refuge which was con-

veyed, allegedly in violation of federal statutes, to private

parties in exchange for private land is barred by sov-

ereign immunity on the ground that the United States

would, if the suit was successful, necessarily have to re-

turn the land it had obtained to its former owners.

3. Whether Congress has waived sovereign immunity

as to suits brought under the Administrative Procedure

Act.

STATUTES AND REGULATIONS INVOLVED

The statutes and regulations involved are:

(a) National Wildlife Refuge System Adminis-

tration Act of 1966, 80 Stat. 927, 16 U.S.C. 668dd;

(b) Endangered Species Conservation Act of

1969, 80 Stat. 926, 16 U.S.C. 668aa to 668bb;

(d) Fish and Wildlife Act of 1956, 70 Stat. 1119,

16 U.S.C. 742a;

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(e) 43 C.F.R. 2204.2-1 (implementing the Na-

tional Wildlife Refuge System Administration Act

of 1966) ;

(f{) Administrative Procedure Act, 80 Stat. 381,

5 U.S.C. 706.

These statutes and regulations are set forth in Appendix

B, pp. 45-53.

STATEMENT

On May 5, 1967, the United States acquired the Nav-

arre Marsh as a unit of the Ottawa National Wildlife

Refuge, which was part of the National Wildlife Refuge

System. On October 3, 1968, the Bureau of Sports Fish-

eries and Wildlife of the Department of Interior entered

into a land exchange with the Cleveland Electric Illumin-

ating Company and Toledo Edison Company (herein-

after “the utilities’). The utilities exchanged private

lands which they owned, the Darby Marsh, for the Nav-

arre Marsh.

The Sierra Club and Citizens for Clean Air and Water

brought suit seeking a declaratory judgment that the

exchange of land violated federal statutes governing the

authority of the Secretary of Interior in administering

the Wildlife Refuge System. After the suit was dis-

missed, plaintiffs filed an amended complaint seeking both

a declaratory judgment and an order directing the utili-

ties to return Navarre Marsh to the United States. Since

the district court again dismissed the amended complaint,

the facts alleged in the amended complaint must be taken

as true for purposes of reviewing this determination.

The amended complaint alleged that Navarre Marsh

covers 524 acres and is a large part of the southern Lake

Erie marshes which are vital in the north-south flyway

for migratory waterfowl. It is a regular stop for 250

species of waterfowl during their seasonal migrations,

NE GARRATP ASAT RNIB ID PRT LEM

including the bald eagle which is an endangered species.

Many other animals, such as muskrats, raccoons, fox and

occasionally deer, inhabit the marsh area. The lake

adjacent to the marsh supports a wide variety of game

and fish, and the last major walleye spawning ground in

Lake Erie is only three nautical miles offshore. In com-

parison, the Darby Marsh, which was received by the

government from the utilities, will produce a “wildlife

refuge of extremely poor natural quality.”

The utilities will use Navarre Marsh to construct the

Davis-Besse Nuclear Power station with its associated

facilities, including a water-intake canal, discharge con-

duits, roads and transmission lines. The proposed con-

struction and operation of the nuclear power plant will

cause serious and permanent damage to Navarre Marsh

and its ecological system. As a result, it will be largely

unfit for habitation by migratory birds. This harm to

Navarre Marsh and surrounding areas will be irreversi-

ble. It cannot be cured by the provision in the exchange

for leasing back the area of Navarre Marsh not used

by the power plant to the Department of Interior for

use as a wildlife refuge.

The original complaint was dismissed by the district

court because of sovereign immunity. The amended com-

plaint was dismissed on the grounds that suit was barred

by sovereign immunity and that the Secretary’s action

was non-reviewable under the Administrative Procedure

Act (App. A, pp. 14-15).

The Court of Appeals for the Sixth Circuit affirmed in

a 2-to-1 decision. Judge Weick stated that (1) since

the various statutes relied upon by plaintiffs give dis-

cretion to the Secretary of Interior, his actions are not

judicially reviewable; and (2) the suit was barred by

sovereign immunity because (a) the plaintiffs only

challenged the particular exercise by the Secretary of

Interior of his general authority to make land exchanges

and (b) the action would in effect require the United

States to surrender the land obtained from the utilities

in the exchange (App. A, pp. 21, 26). Judge McCree con-

curred solely on the ground of sovereign immunity (App.

A, p. 28). Judge Feikens disagreed that suit was barred

by sovereign immunity or that the questions presented

were not reviewable. He further concluded on the merits

(App. A, p. 36):

Plaintiffs allege that the Secretary acted without

regard to the effect his action would have on birds

and other endangered species which habitate Nav-

arre Marsh. If this is so, the exchange must be set

aside.’

REASONS FOR GRANTING THE WRIT

Petitioners submit that the decision below is clearly

erroneous, involves issues of major national importance,

and is in conflict with decisions of this Court and other

courts of appeals.

1. Secretary of Interior entered into the exchange of

land pursuant to 16 U.S.C. 668dd(b) (3) which allows

him “to acquire lands or interests therein by exchange

(a) for acquired lands or public lands under his juris-

diction which he finds suitable for disposition ** *.” 16

U.S.C. 668dd(b) (3). 16 U.S.C. 668dd(b) (3) is a part

*The district court concluded that plaintiffs had standing and

the court of appeals implicitly upheld this determination. While

one member of the court of appeals indicated some doubt as to

standing (App. A, p. 27), the dissenting judge concluded that

plaintiffs had standing (App. A, p. 31) and the concurring judge

expressed no view on this issue (App. A, p. 28). In any event,

plaintiffs clearly had standing under the amended complaint since

they alleged that their members “regularly used and enjoyed

the Navarre Marsh to observe and study the wildlife” (App. A,

p. 31).

of the National Wildlife Refuge System Administration

Act. Subsection (b) specifically begins by stating that

exchange authority is given the Secretary “in adminis-

tering the System” which, under 16 U.S.C. 668dd(a), is

the National Wildlife Refuge System. Consequently, the

Secretary is clearly required to comply with all federal

statutes relating to the National Wildlife Refuge Sys-

tem. In addition, the statutes relied upon by the peti-

tioners show, on their face, that they apply to land ex-

changes as well as other actions of the Secretary of In-

terior.

The Endangered Species Conservation Act. 16 U.S.C.

668aa(a) states that:

The purposes of this Act are to provide a program

for the conservation, protection, restoration and

propagation of selected species of native fish and

wildlife, including migratory birds, that are threat-

ened with extinction.

Since the provision under which the exchange was made,

16 U.S.C. 668dd(b) (3), was a part of this same Act

at the time of the land exchange, it is clear that such

an exchange involved wildlife refuges, must serve the

purpose of protecting migratory birds from extinction.

It is likewise clear from another provision of the Act,

16 U.S.C. 668aa(b), that wildlife refuges must be ad-

ministered in order to protect endangered species:

It is further declared to be the policy of Congress

that the Secretary of the Interior, the Secretary of

Agriculture, and the Secretary of Defense together

with the heads of bureaus, agencies, and services

within their departments, shall seek to protect species

of native fish and wildlife, including migratory

birds, that are threatened with extinction, and, in-

sofar as is practicable and consistent with the pri-

mary purposes of such bureaus, agencies, and serv-

ices, shall preserve the habitats of such threatened

species on lands under their jurisdiction.

Thus, the Secretary of the Interior is directed to use all

his authority, including the authority to manage wildlife

refuges, to protect endangered species.

16 U.S.C. 668bb(d) directs the Secretary of Interior

to “review other programs administered by him and, to

the extent practicable, utilize such programs in further-

ance of the purpose of this Act” and to “encourage other

Federal agencies to utilize, where practicable, their au-

thorities in furtherance of the purpose of this Act * * *,”

Since the purpose and policies of the Endangered Species

Conservation Act—to protect endangered species—apply

to other programs administered by the Secretary of the

Interior and even to entirely different agencies of the

federal government under 16 U.S.C. 668aa(b) and bb(d),

these purposes and policies plainly apply to wildlife

refuges such as Navarre Marsh.

16 U.S.C. 701. Section 701 provides that the Secre-

tary of the Interior has the duty to preserve and restore

game birds and other wild birds. This provision obviously

applies to a wildlife refuge which is part of the National

Wildlife Refuge System.

Fish and Wildlife Act of 1956. 16 U.S.C. 742a pro-

vides that the Fish and Wildlife Act “shall be adminis-

tered with due regard to the inherent right of every

citizen and resident of the United States to engage in

fishing for his own pleasure, enjoyment, and betterment,

and with the intent of maintaining and increasing the

public opportunities for recreational use of our fish and

wildlife resources * * *.” Since the Act, 16 U.S.C. 742b,

established the Bureau of Sports Fisheries and Wildlife

within the United States Fish and Wildlife Service,

which administered the Navarre Marsh Wildlife Refuge,

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it is clear that this provision applies to the Bureau’s

actions in the present case.

The facts alleged in the complaint, if proved at trial,

would clearly show that the Secretary of the Interior

has violated these federal statutes. He has violated the

Endangered Species Conservation Act because the ex-

change of land fails to protect an endangered species of

wildlife, the bald eagle, and its habitat in the Navarre

Marsh. 16 U.S.C. 668aa(a), (b), bb(a). He has vio-

lated 16 U.S.C. 701 by failing to preserve and restore

game birds and other wild birds. And he has violated

the Fish and Wildlife Act of 1956 by failing to protect

fish and wildlife resources for recreational use. 16 U.S.C.

742a. All of these provisions have been violated by ex-

changing an extremely valuable and important wildlife

refuge for a marsh that will harm migratory birds and

other wildlife.

The majority of the court of appeals did not rule on

these contentions. While one member of the panel con-

cluded that the validity of the land exchange was not

judicially reviewable (App. A, p. 21), affirmance of the

district court’s determination was based solely upon sov-

ereign immunity (see App. A, p. 28). This conclusion

was clearly erroneous.

First, the court found that “the Secretary of Interior

had full authority to make the exchange and even if he

erred in fact or in law the courts have no jurisdiction

to interfere” (App. A, p. 28). It is of course well es-

tablished that suit against a federal official is not barred

by sovereign immunity if his action “is not within the

officers’ statutory powers * * *.” Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682 (1948). Accord,

Malone v. Bowdoin, 369 U.S. 643, 647 (1962); Dugan

v. Rank, 372 U.S. 609, 621-622 (1963). The amended

complaint here explicitly alleged that the exchange both

violated each of the statutes cited above and “is arbi-

trary, capricious and in abuse of the exchange discre-

tion.”

Second, the court below concluded that the suit sought

to divest the United States of property obtained from

the utilities (App. A, p. 22). In fact, however, the com-

plaint seeks only “to return title of Navarre Marsh to

the United States.” If title to Navarre Marsh is re-

turned, we assume that the United States will return

Darby Marsh to the utilities since there has never been

any indication that the United States entered into the

exchange for any reason of its own but did so rather

to accommodate the utilities,

In any event, even if the United States decided not

to return Darby Marsh, sovereign immunity does not

apply. The utilities’ remedy is to recover compensation

for the property taken. Larson v. Domestic & Foreign

Commerce Corp., supra, 337 U.S. at 606-696; Malone v.

Bowdoin, supra, 369 U.S. at 647-648. The utilities will

have a full remedy through a suit for “just compensa-

tion for the taking of their land by the United States”

in the Court of Claims. Jd. at 647, note 8. Whatever

may be the remedy of the utilities, there is no basis for

barring suit to review whether federal officials disposed

of public land in violation of federal statutes.

2. The decision of the court below that sovereign im-

munity applies because the complaint alleged only that

the Secretary erred in fact or in law is inconsistent with

this Court’s decision in Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971), and decisions

of other courts of appeals. In Overton Park, this Court

held that the reviewing court must determine “whether

on the facts the Secretary’s decision can reasonably be

said to be within that range” allowed by the applicable

statute. Jd. at 416. The Court then went on (ibid.) :

Serutiny of the facts does not end, however, with

the determination that the Secretary has acted with-

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in the scope of his statutory authority. Section 706

(2) (A) requires a finding that the actual choice

made was not “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.”

5 U.S.C. 706(2) (A) (1964 ed. Supp. V). To make

this finding the court must consider * * * whether

there has been a clear error of judgment.

Several courts of appeals have similarly reviewed deci-

sions of federal officials to determine whether they have

acted arbitrarily, capriciously, or in abuse of their dis-

cretion even though they had general authority to act.

Adams v. Witmer, 271 F.2d 29, 33 (C.A. 9, 1958);

Coleman v. United States, 363 F.2d 190, 196 (C.A. 9,

1966), reversed on other grounds, 390 U.S. 599 (1968);

Littell v. Morton, 445 F.2d 1207, 1211 (C.A. 4, 1971).

While the issue of sovereign immunity was not raised

and therefore not specifically addressed in these cases,

this Court and the courts of appeals necessarily deter-

mined that sovereign immunity does not bar actions

brought under the Administrative Procedure Act to re-

view actions of federal officials on the ground that they

acted arbitrarily, capriciously, and abused their discre-

tion.?

This issue is obviously of far-reaching importance. If

suit can be brought to review the actions of federal offi-

2 At least two courts of appeals and five district courts have

rejected claims of sovereign immunity when, as here, the com-

plaint alleged that federal officials had violated federal statutes

designed to protect the environment. Parker v. United States, 448

F.2d 793, 798 (C.A. 10. 1971), certicrari denied, 405 U.S. 989

(National Wilderness Preservation System): Raglend v. Mueller,

450 F.2d 1196 (C.A. 5, 1972); Izeae Wolte+ League v. St.

Clair, 313 F. Supp. 312 (D. Minn., 1970) (National Wilder-

ness Preservation Syctem); LaRaza Unida Vv. Volpe, 337 F. Supp.

221 (N._D. Ca!., 1971); Cape May County Chapter, Inc. v. Macchia,

320 F. Supp. 495 (D. N_J.. 1971); National Helium Corp. v. Morton,

326 F. Supp. 151. 154 (D. Kans., 1971), affirmed, 455 F.2d 650

(C.A. 10, 1971): Environmental Defense Fund, Inc. v. Corps of

Engineers, 324 F. Supp. 878 (D. D.C., 1971).

cials only when they have acted totally without any statu-

tory authority, judicial review under the Administrative

Procedure Act will be significantly restricted. Contrary

to the language of the APA, review will not be permitted

whenever a federal official has acted arbitrarily, capri-

ciously, or in abuse of his statutory discretion.

courts of appeals even if we assume, contrary to our

contention, that title to the land obtained by the United

States is involved in this litigation. In Brennan v. Udall,

879 F.2d 803, 805 (1967), certiorari denied, 389 U.S.

975, the Court of Appeals for the Tenth Circuit rejected

the contention that sovereign immunity prevented review

of an action by a landowner contesting the title of the

United States to mineral rights under his land. The

court held that the action was reviewable under the

Administrative Procedure Act.

Similarly, in Knox Hill Tenant Council v. Washington,

448 F.2d 1045, 1052-1053 ( 1971), the Court of Appeals

for the District of Columbia Circuit held that the courts

could entertain an action seeking to compel the United

States to repair housing owned by it:

If, after trial, it be found that appellees do in fact

have a responsibility for the property in their care

which they are not recognizing adequately, the court’s

power, at the least, to declare that responsibility

and to define that fault is not dissipated solely by

the circumstance that legal title to the roperty is

federal official of federal property. There is no magic

about real estate, or its ownership by the United

States, which hedges its guardians about with an

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immunity not available to other executants of public

policies committed to their care by the Congress.

In contrast, the court below has held that the ac-

tions of defendants are not reviewable in disposing of

federal land allegedly in violation of federal law because,

according to the court below, this will require surrender

of the land obtained in exchange.

4. The decision of the court below that sovereign im-

munity bars review of the exchange of federal land, even

if the plaintiffs allege violations of federal statutes, is

also of great importance because it will prevent judicial

review of a huge volume of federal land transactions

affecting large areas of the country. The court below

has decided that the validity of any such disposal of

federal land cannot be challenged if the United States

has actually received the land in exchange.

During the last four years, over 8,000 acres of land

in the Wildlife Refuge System have been exchanged for

other land under 16 U.S.C. 668dd. Far larger amounts

of federal land have been exchanged under other similar

statutes. The National Park Service exchanged over 100,-

000 acres of land in thirty-one different national parks,

monuments, seashores, parkways and recreation areas

between 1961 and 1968, and these exchanges are pre-

sumably continuing at a similar rate. The Forest Serv-

ice has made exchanges of over 500,000 acres of National

Forest land in the last eight years. In addition, the

Bureau of Land Management, which administers other

federal lands, exchanged 1,700,000 acres of land between

1966 and 1971.* All of these exchanges were made pur-

suant to statutes, like 16 U.S.C. 668dd(b) (3), which

give authority to federal agencies to exchange lands

3 The precise figures for these exchanges and the statutes under

which the exchanges were made are set forth in Appendices C,

pp. 54-56, and D, pp. 57-61.

which they administer for other privately-held or state-

owned land.

There are approximately seventy federal statutes which

provide for federal land exchanges ( Appendix D, pp.

57-61). Consequently, the figures presented above repre-

sent, in all likelihood, only a portion of the land ex-

changes actually carried out. Thus, the ruling below

will have a substantial effect upon large amounts of

federal land which may be involved in future exchanges.

Much of this land is in wildlife refuges, national parks

and national forests which are of great environmental

importance to the entire country.

In Lewis v. Hickel, 427 F.2d 673 (C.A. 9, 1970), the

court of appeals considered the authority of the Secre-

tary of Interior to exchange lands under the Taylor

Grazing Act, 43 U.S.C. 315, et seq. The court stated

that a land exchange can “not defeat the Congressional

purpose” as stated in the Taylor Act. Id. at 676. Simi-

larly, in LaRue v. Udall, 324 F.2d 428, 431 (C.A. D.C.,

1963), certiorari denied, 376 U.S. 907, the court of ap-

peals held that, in making a land exchange under the

Taylor Grazing Act, it is the “Secretary’s duty” to con-

sider the purposes of the Act. Thus, the court clearly

held that the purpose stated in the Act constituted a

limitation upon the Secretary’s power to make exchanges.

On the other hand, if the ruling of the court below in

the present case is correct, such land exchanges can be

made without regard to the purposes for which this land

has been acquired and for which it must be administered

under the statutes passed by Congress.

The decision below is also inconsistent with that of

the district court in National Forest Preservation Group

V. Butz, 343 F. Supp. 696 (D. Mont., 1972). There, the

district court was asked to enjoin land exchanges made

by the Forest Service with private parties. While the

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court upheld the exchanges, it carefully scrutinized them

despite the fact that the federal government had already

acquired the private land. Jd. at 699.

5. The decision of the court below will also prevent

judicial review of any other federal land transactions in

which the United States has received compensation. Once

a purchaser or lessee has paid money for federal land,

it necessarily follows from the Sixth Circuit’s decision

that no court can determine whether the sale or lease

was legally valid, even if it was plainly inconsistent with

Congressional purposes. This would mean that consum-

mated sales or patents of land under 43 U.S.C. 161, 218,

291 et seg., 1165, and 1171; mineral leases and mining

claims under 30 U.S.C. 22, 161, and 226; oil and gas

leases under 30 U.S.C. 181 et seg. and 351 et seq.; graz-

ing permits under 43 U.S.C. 315-315r; and timber sales

under 16 U.S.C. 476 et seq., all would be immunized

from review. Millions of acres of federal land are in-

volved in these transactions.

The Court of Appeals for the District of Columbia

Circuit has held that federal officials may be required

to cancel oil and gas leases (Boesche v. Udall, 303 F.2d

204, 206 (C.A. D.C., 1962), affirmed, 373 U.S. 472;

McKay v. Wahlenmaier, 226 F.2d 35, 46-47 (C.A. D.C,

1955) ) and grazing permits (McNeil v. Seaton, 281 F.

2d 931, 933 (C.A. D.C., 1960)) which were improperly

granted. It is not clear in these cases whether payment

to the United States had already been made because the

courts did not consider this fact worthy even of comment.

However, the determination below is, at the least, im-

plicitly inconsistent with those decisions.

6. Even if the present suit would, under common law

principles, be barred by sovereign immunity, the Admin-

istrative Procedure Act, 5 U.S.C. 706, specifically pro-

vides for review of agency actions which are:

ea? eS e- . =e eee Ae 6 eee 6 a

(A) arbitrary, capricious or an abuse of discretion,

or otherwise not in accordance with law i 7 ee

in excess of statutory jurisdiction, authority or limi-

tations or short of statutory rights.

The court below, however, determined that “the Admin-

istrative Procedure Act does not waive sovereign im-

munity * * *” (App. A, p. 27). This determination is

contrary to the decisions of the courts of appeals in five

circuits.‘

The United States Court of Appeals for the District

of Columbia Circuit concluded that the Act was a waiver

of sovereign immunity in Scanwell Laboratories, Inc. v.

Shaffer, 424 F.2d 859, 8783 (1970):

It seems axiomatic to us that one must imply,

from a statement by the Congress that judicial re-

view of agency action will be granted, an intention

on the part of Congress to waive the right of sov-

ereign immunity; any other construction would make

the review provisions illusory.°

The Court of Appeals for the Fifth Circuit had ear-

lier taken this same position in Estrada v. Ahrens, 296

F.2d 690, 698 (C.A. 5, 1961):

‘This Court has not ruled on this issue. In Blackmar v. Guerre,

342 U.S. 512, 515-516 ( 1952), the Court made the statement that

“[s]till less is the Administrative Procedure Act to be deemed an

implied waiver of all governmental immunity from suit.” This

statement was made, however, in the context of considering an en-

tirely different issue whether the Civil Service Commission could

be sued as a corporate entity or whether suit must be brought

against the individual Commissioners. The Court’s statement

meant that the Commission could not be sued as such. The Court

then immediately said that it assumed, “without deciding,” that

the Commission’s actions were reviewable under the Administrative

Procedure Act but found a lack of venue. Jd. at 516.

’The Court of Appeals for the District of Columbia had pre-

viously stated that the Administrative Procedure Act did not con-

stitute consent to suit. Arizona ex rel. Arizona State Board of

Public Welfare v. Hobby, 221 F.2d 498, 500 note 6 (1954).

5x stoma l

LOVELESS LT GIONS EE

By providing judicial review in an action brought

by “any person adversely affected or aggrieved by

any agency action” Congress permitted suits which

under established tests would certainly be barred as

suits against the government. * * * The act thereby

makes a clear waiver of sovereign immunity in ac-

tions to which it applies.

The Court of Appeals for the Second Circuit has come

to the same conclusion. Kletschka v. Driver, 411 F.2d

436, 445 (C.A. 2, 1969). Accord, Powelton Civic Home

Owners’ Ass’n v. Department of Housing and Urban

Development, 284 F. Supp. 809, 834 (E.D. Pa., 1968);

Krawez v. Stans, 306 F. Supp. 1230, 1233 (E.D. N.Y.,

1969) ; Schroeder Nursing Care, Inc. v. Mutual of Omaha

Ins. Co., 311 F. Supp. 405, 409 (E.D. Wis., 1970); A. G.

Schoonmaker Co., Inc. v. Resor, 319 F. Supp. 933, 940

(D. D.C., 1970) ; General Motors Corp. v. Volpe, 321 F.

Supp. 1112, 1120 (D. Del., 1970) ; National Helium Corp.

v. Morton, 346 F. Supp. 151, 154 (D. Kans., 1971),

affirmed, 455 F.2d 650 (C.A. 10, 1971).

The Courts of Appeals for the Fourth and Ninth Cir-

cuits have also rejected the position of the Sixth Circuit.

While they have not held that the Administrative Proce-

dure Act automatically provides consent to suit, they

. have concluded that the Act significantly narrows the

defense of sovereign immunity. In Washington v. Udall,

417 F.2d 1310, 1820 (C.A. 9, 1969), the court said that

the Act does not provide for judicial review only in

cases wherein “the immunity doctrine is so transcending

as to require dismissal of the suit” and that the Act

does provide a basis for review of governmental deci-

sions where “the immunity doctrine is not so controlling

so as to bar the suit.” °

* Previously, the Ninth Circuit had held that the Administrative

Procedure Act constituted consent to suit without indicating any

limitation on this holding. Adams v. Witmer, 271 F.2d 29, 34

(1959) ; Mulry v. Driver, 366 F.2d 544, 547 (1966).

In Littell v. Morton, 445 F.2d 1207, 1214 (C.A. 4,

1971), after adopting the holding in Washington v. Udall,

the court said:

The rationale for sovereign immunity essentially

boils down to substantial bothersome interference

with the operation of government. It can be said

with some justification that both Congress, through

the enactment of the APA, and the courts, through

liberal application of the APA and silence as to sov-

ereign immunity, have largely rejected this rationale.

However, to the extent that it is still viable, it is

only tangentially present here. In no way will this

case cause the Department of the Interior to be

“stopped in its tracks” * * *,

Only the courts of appeals for two circuits have re-

jected the contention, as did the court below, that the

Administrative Procedure Act contitutes consent to

suit. Cyrus v. United States, 226 F.2d 416, 417 (C.A.

1, 1955) ; Twin Cities Chippewa Tribal Council v. Minne-

sota Chippewa Tribe, 370 F.2d 529, 532 (C.A. 8, 1967).

See also Coalition for United Community Action v. Rom-

ney, 316 F. Supp. 742, 746 (N.D. Ill., 1970). In addi-

tion, the decisions of the Tenth Circuit are divided. Com-

pare Brennan v. Udall, 379 F.2d 803, 805 (1967), cer-

tiorari denied, 889 U.S. 975 (the Act constitutes consent

to suit), with Chournos v. United States, 335 F.2d 918,

919 (1964), Cotter Corp. v. Seaborg, 370 F.2d 686, 692,

note 15 (1966), and Motah v. United States, 402 F.2d

1, 2 (1968) (the Act does not constitute consent).

Fae:

CONCLUSION

For the foregoing reasons, petitioners respectfully

submit that the petition for a writ of certiorari should

be granted.

Bruce J. TERRIS

SUELLEN T. KEINER

JAMES W. MooRMAN

Attorneys for Petitioners

January 1973

TABLE OF CONTENTS

APPENDIX A: LOWER COURT OPINIONS ...........

1. District Court Opinion

2. Sixth Circuit Court of Appeals Opinion —......

3. Sixth Circuit Court of Appeals Judgment ........

4. Sixth Circuit Court of Appeals Denial of Motion

for Rehearing

APPENDIX B: APPLICABLE STATUTES AND

REGULATIONS .....

1. Administration of National Wildlife Refuge

System, 16 U.S.C. 668dd _..

2. Endangered Species Conservation Act of 1969,

16 U.S.C. 668aa et seq. _.....

3. Preservation of Game and Wild Birds, 16 U.S.C.

, Seen eater

4. Fish and Wildlife Act of 1956, 16 U.S.C. 742a....

5. Interior Department, Public Land Regulations,

43 C.F.R. 2204

6. Administrative Procedure Act, 5 U.S.C. 706 _...

APPENDIX C: LAND EXCHANGE STATISTICS..

APPENDIX D: OTHER LAND EXCHANGE STAT-

57a

m-t ESR TWO MACH POOR COPY

APPENDIX A

LOWER COURT OPINIONS

No. C70-971

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES EX REL. SIERRA CLUB, ET AL.,

Plaintiffs,

vs.

WALTER J. HICKEL, Individually and as

Secretary of the Interior, ET AL.,

Defendants.

MEMORANDUM AND ORDER

(Filed September 16, 1971.)

THOMAS, J.

Sierra Club, a non-profit California corporation, and

Citizens for Clean Air and Water, an Ohio non-profit

corporation, have filed an amended complaint against

Walter J. Hickel, individually and as Secretary of the

Interior, United States Department of the Interior (his

successor in office has not been substituted), Toledo Edi-

son Company, and the Cleveland Electric Illuminating

Company, “electric utilities corporations engaged in the

business of supplying electrical power to the Northern

Ohio area.”

The amended complaint states that “this is an action

for a declaratory judgment as authorized under 28 U.S.C.

§2201, and for appropriate relief under 28 U.S.C.

§ 2202.” The court’s jurisdiction is invoked under 28

U.S.C. § 1331 (1958) (cases arising under the constitu-

tion, laws or treaties of the United States), and 5 U.S.C.

§§ 702 and 706 (1966) (provisions of the Administra-

tive Procedure Act).

Describing the transaction out of which this action

grows, paragraph 7 of the amended complaint states:

In October of 1967, defendants Toledo Edison and

CEI, and the Department of the Interior, through

its Bureau of Sports Fisheries and Wildlife, entered

into an agreement in pursuance of which, on Sep-

tember 2, 1968, Toledo Edison by deed, conveyed the

480 acres of realty known as Darby Marsh to the

United States government. Thereafter on October

8, 1968, the Secretary of the Interior, by deed, trans-

ferred Navarre Marsh, a unit of the Ottawa Fed-

eral Wildlife Refuge, to defendants Toledo Edison

and CEI.

In their prayer the plaintiffs “pray for a declaration

that the transfer of title to Navarre Marsh was and is

an arbitrary and capricious act and constitutes an abuse

of discretion.” Plaintiffs then pray “that this Court im-

plement said declaration by issuing an order directing

defendants Toledo Edison and CEI to return title of

Navarre Marsh to the United States.”

Defendant Secretary of the Interior meves to dismiss

the amended complaint. The two utility companies join

in a separate motion to dismiss the amended complaint.

On April 5, 1971, in a scholarly memorandum of 27

pages, Judge Ben C. Green of this court dismissed the

original complaint upon motions filed by the present de-

fendants. On June 1, 1971, the individual docket system

was instituted in this court, and this case is now assigned

to the undersigned judge.

Judge Green determined that the plaintiffs have stand-

ing to sue; and his determination is accepted as law of

the case. The principal ground upon which Judge Green

dismissed the original complaint is as follows:

BLEED THROUGH POOR COPY

It is this Court’s opinion that the complaint, with

the relief as prayed for therein, may not be main-

as against the doctrine of sovereign immu-

nity. As previously noted, the relief sought is a de-

claration that the land exchange is void and must

be set aside as a nullity. The effect of such a decree

would be to restore title to the lands involved to

where they stood prior to the exchange. Consequent-

ly, although such a decree might not require affirma-

tive action by the United States, it would involve

“the disposition of unquestionably sovereign prop-

erty” and would “expend itself on the public domain

or interfere with the public administration.” It is

this Court’s conclusion that under the line of author-

Corp., 337 U.S. 682 ( 1948) through State of Hawaii

Vv. Gordon, 373 U.S. 57 (1963), this complaint must

be considered as seeking relief which would work

“an intolerable burden on governmental functions.”

As was true of the original complaint the amended

complaint seeks a declaratory judgment with reference

to the exchange executed by the defendants of Navarre

Marsh and Darby Marsh ( Southern Lake Erie marshes

in Ottawa County, Ohio). Similar allegations of fact

appear in each complaint. It is said that the Secretary

knew, or in the exercise of proper care, should have

known that Navarre Marsh is a major link in the South-

ern Lake Erie marshes that constitutes “a pivotal point

in the north-south flyway of migratory waterfowl,” and

was a “stopover point” on the Mississippi and Atlantic

flyway for migratory birds, including certain endangered

species. It is stated that Navarre Marsh supports a

wide variety of animal life and is located “only three

nautical miles from the last major walleye spawning

ground in Lake Erie.”

DRS ten,

It is further alleged that at the time of the land trans-

fer the defendant Secretary knew, or in the exercise of

due diligence should have known, that Navarre Marsh

was to be devoted, in part, to the construction of the

Davis-Besse Nuclear Power Station, and that

[T]his proposed construction would cause serious

and permanent damage to the marsh area and its

ecological systems, thereby rendering the marsh

largely unfit for migratory bird inhabitation.

It is stated that the defendant Secretary of the Interior

knew, or should have known, that the Davis-Besse Nu-

clear Power Station

will discharge radioactive materials which will con-

taminate migratory waterfowl and cause serious,

lasting, and irreparable damage to the numerous

migratory bird species inhabiting the marsh.

It is also alleged that the defendant Secretary knew,

or should have known, that although the exchange agree-

ment requires

defendants Toledo Edison and CEI to lease back the

physically unoccupied portions of Navarre Marsh to

the Department of the Interior for administration

as a Federal Wildlife Refuge, said utility companies

fully intend to fence off said area and limit entry

to only those individuals they determine may enter

a public wildlife leasehold, ....

The amended complaint states a single claim, while

the original complaint contained four causes of action.

The claim is predicated upon 5 U.S.C. §§ 702 and 706

(sections of the Administrative Procedure Act, 5 U.S.C.

§§ 701-706 (1966)). The Administrative Procedure Act

was not mentioned in the original complaint but its ap-

plication to the original complaint was argued in the

briefs on the motions to dismiss.

Paragraph 12 of the amended complaint states that:

The aforesaid land transaction was carried out

pursuant to the exchange authority of 16 U.S.C.

§ 668dd(b) (3). The exchange discretion of defend-

ant Secretary of the Interior is subject to several

statutory limitations and procedures, as more fully

described hereinafter, none of which were complied

with by said defendant.

Title 16 U.S.C. § 668dd was enacted by Public Law

89-669, § 4, 80 Stat. 926 (October 15, 1966). Its nine

subsections relate to the National Wildlife Refuge Sys-

tem. Subsection (a) designates as the National Wildlife

Refuge System

[Ajll lands, waters and interests therein adminis-

tered by the Secretary as wildlife refuges, areas for

the protection and conservation of fish and wildlife

that are threatened with extinction, wildlife ranges,

game ranges, wildlife Management areas, or water-

fowl production areas, . . ;

Subsection (a) next provides that

Nothing contained in this Act shall restrict the au-

thority of the Secretary to modify or revoke public

land withdrawals affecting lands in the System as

presently constituted, or as it may be constituted,

whenever he determines such action is consistent

with the public interest. or

PS ee ert Ree,

“In administering the System” subsection 668dd(b)

authorizes the Secretary

(8) to acquire lands or interests therein by exchange

(a) for acquired lands or public lands under his

jurisdiction which he finds suitable for disposition,

or (b) for the right to remove, in accordance with

such terms and conditions as the Secretary may

prescribe, products from the acquired or public lands

within the System. ...

As seen, the first sentence of paragraph 12 of the

amended complaint states that “the aforesaid land trans-

fer was carried out pursuant to the exchange authority

of 16 U.S.C. § 668dd(b) (3).” Plaintiffs agree that the

“defendant Secretary of the Interior possessed a broad

discretion under section 668dd(b) (3).” Analysis of sec-

tion 668dd(b) (3) and its relationship to section 668dd

(a) bears out this candid assessment. In the next sen-

tence of their brief plaintiffs deny that this discretion

is without limitation; and assert that “only if the dis-

cretion was entirely without limitation could it be said

to be a situation where there exists ‘no law to apply,’

thereby precluding review.” Plaintiffs are referring to

5 U.S.C. § 701(a) (1966) which excepts that application

of the Administrative Procedure Act to the extent that

(1) statutes preclude judicial review; or (2) agency

action is committed to agency discretion by law.

In Citizens to Preserve Overton Park, Inc. v. John A.

Volpe, Secretary of Transportation, 401 U.S. 402, 410

(1971) the Supreme Court states that the exception

“committed to agency discretion” is a “very narrow ex-

ception,” and then adds:

The legislative history of the Administrative Pro-

cedure Act indicates that it is applicable in those

rare instances where “statutes are drawn in such

broad terms that in a given case there is no law to

apply.” S. Rep. No. 752, 79th Cong., 1st Sess., 26

(1945).

Applying 5 U.S.C. § 701 (a) (1966), as interpreted in

Citizens to Preserve Overton Park, supra J udge Green

ruled that

[T]he grant of authority to the Secretary of the :

Interior under section 668dd to determine that pub-

lic lands under his jurisdiction are “suitable for i

disposition” “consistent with the public interest” is, f

standing alone a grant of totally discretionary power 3

not subject to review under the A.P.A. &

Since his ruling construes section 668dd “standing alone,”

(but including subsection 668dd(b) (3), the ruling is

without reference to plaintiffs’ present claim that stat-

utes limit the Secretary’s discretion under subsection 668

dd(b) (3).

Nevertheless, plaintiffs’ present claim ignores the mu-

tual exclusiveness of the application of the doctrine of

State of Washington v. Udall, 417 F.2d 1310

Cir. 1969) holds:

The Administrative Procedure Act may, however,

provide a basis for review of governmental decisions

if, and only if, the immunity doctrine is not so con-

trolling as to bar the suit.

In their prayer for relief the plaintiffs partially seek

“a declaration that the transfer of title to N avarre Marsh

was and is an arbitrary and capricious act and consti-

tutes an abuse of discretion.” Plaintiffs thereby attempt

to bring the amended complaint within the Scope of re-

view of the Administrative Procedure Act, 5 U.S.C. § 706

(1966). Parenthetically, if the prayer for relief went no

REE RITE OO TPS LS NTI CRUD YOR RN RN REO NR |

further it is doubtful that the amended complaint would

present a justiciable issue. The prayer for relief then

asks “that this court implement said declaration by issu-

ing an order directing defendants Toledo Edison and

CEI to return title of Navarre Marsh to the United

States.” Plaintiffs seek to bolster the second half of their

prayer by stating in their brief that “No relief is sought

against United States property.” Thus plaintiffs seek to

circumvent Judge Green’s conclusion, in dismissing the

original complaint, that

The relief sought is a declaration that the land

exchange is void and must be set aside as a nullity.

The effect of such a decree would be to restore title

to the lands involved to where they stood prior to

the exchange.

Plaintiffs argue that

Whatever claim the utilities might have as the re-

sult of the granting of the relief which plaintiffs

have requested, could certainly be protected either

by a cross-claim or a later action in the Court of

Claims.

Manifestly, if the doctrine of sovereign immunity denies

the jurisdiction of this court to declare the exchange

agreement a nullity then this court also lacks jurisdiction

to entertain a cross claim by the utilities seeking restora-

tion of Darby Marsh from the Government, a disposi-

tion of “unquestionably sovereign property,” Larson,

supra at 619 n.11.

Invoking the equitable powers of this court plaintiffs

ask for an order “directing defendants Toledo Edison

and CEI to return title of Navarre Marsh to the United

States.” This court would not grant this request for

equitable relief without simultaneously ordering the Gov-

ernment to return Darby Marsh to the utilities.

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——

A decree in equity “should completely determine the

controversy before the court,” Stonega Coke & Coal Co.

V. Price, 116 F.2d 618, 621 (4th Cir. 1940). Partial or

incomplete decrees should not be entered, 27 Am. Jur. 2d

Equity § 108 (1966). In more graphic language, “equity

delights to do justice, and that not by halves,” 30 C.J.S.

Equity §104 (1965). Thus the equitable relief now

sought, as before, involves “the disposition of unques-

tionably sovereign property” and is barred by the doc-

trine of sovereign immunity as set forth in Larson, supra

at 691 n.11.

In view of these conclusions the claimed statutory

limitations on section 668dd(b) ( 3) are material only if

one or more of these statutes bring the specific relief

sought within the exceptions to the doctrine of sovereign

immunity carved out in Larson, supra. One of these ex-

ceptions is the claim that the Government officer is act-

ing unconstitutionally pursuant to an unconstitutional

grant of power. Larson, supra at 690, 691. The original

complaint in its fourth cause of action, claimed that 16

U.S.C. § 668dd “is an unconstitutional delegation of au-

thority.” This cause of action and this claim have been

abandoned in the amended complaint. The other excep-

tion is described by Larson v. Domestic and Foreign

Corp., supra at 689 in these words:

[Wjhere the officer’s powers are limited by statute,

his actions beyond those limitations are considered

individual and not sovereign actions. The officer is

not doing the business which the sovereign has em-

powered him to do or he is doing it in a way which

the sovereign has forbidden. His actions are ultra

vires his authority and therefore may be made the

object of specific relief.

In light of this Larson exception the claimed statutory

limitations on section 668dd(b) (3) need to be studied

to see if any of these Statutes renders ultra vires the

RO LL TIT ETI IR ETE SR

10a

land exchange authority exercised by the Secretary of

the Interior in his 1967 exchange agreement with the

defendant utilities and in the deed executed by him to

Navarre Marsh on October 3, 1968.

Paragraph 18 of the amended complaint charges

that Section 668dd(b)(3) allows the Secretary of

the Interior to dispose of National Wildlife Refuge

System land holdings only if the land received in

exchange (for addition to the System) is of approxi-

mately equal value to that given up, or if equalizing

monetary payments are made to the United States.

Paragraph 18 then alleges:

Plaintiffs say that Darby Marsh is a wildlife refuge

of extremely poor natural quality as compared to

Navarre Marsh, that the Secretary knew or should

have known of this fact at the time of exchange, and

that his exchange of said properties constituted a

breach of his duty to exercise his exchange discre-

tion only in the light of the equal value provision

of the authorization statute.

The first sentence of subsection (b) (3) has been quoted

earlier. The second sentence of subsection (b) (3) reads:

The values of the property so exchanged either shall

be approximately equal, or if they are not approxi-

mately equal the values shall be equalized by the

payment of cash to the grantor or to the Secretary

as the circumstances require.

This last sentence of subsection (b) (3) is not construed

as a limitation upon the authority of the Secretary to

make land exchanges granted in the first sentence of the

subsection. Rather, the second sentence invests the Sec-

retary with incidental and additional authority to equal-

ize values of the exchanged properties by payment of

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lla

¢ash to the grantor or by acceptance of cash from the

grantor. Augmented but not restricted, by the second

sentence the first sentence gives the Secretary of the In-

terior plenary authority to “acquire lands or interests

therein by exchange. . . .” Under this congressional

grant of unlimited authority the quality of the land the

Secretary acquires by exchange for the National Wild-

life Refuge System is left to his uncontrolled discretion.

Paragraph 16 of the amended complaint relates to 16

U.S.C. §715(a) (1968). This section is part of the Mi-

gratory Bird Conservation Act, 16 U.S.C. §§ 715-715d,

715e, 715f-715k, and 715I-715r. Section 715a creates the

Migratory Bird Conservation Commission, and author-

izes the Commission “to consider and pass upon any area

of land, water, or land and water that may be recom-

mended by the Secretary of the Interior for purchase or

rental under sections [of the Act].” It provides that “no

purchase or rental shall be made of any such area until

it has been duly approved for purchase or rental by said

commission.” Effective October 15, 1966, Public Law 89-

669 enacted sections 668aa-668ee, amended other sections,

and repealed certain sections, including 715d-1, 715d-2.

In the place of these sections of the Migratory Bird Con-

servation Act that had generally provided for acceptance

of land in exchange, Public Law 89-669 enacted section

668dd(b) (3) and granted plenary authority to the Sec-

retary of the Interior to make land exchanges.

It is concluded that section 668dd(b) (3), adopted Oc-

tober 15, 1966, is a new and superseding grant of au-

exchanges. It is wholly independent of and not limited

by the purchase or rental provisions of section 715a. The

special authority of the Secretary to make land exchanges,

existing since 1966, is further documented by the amend-

ment to section 668dd(a) enacted July 18, 1968. This

amendment excepts acquired lands transferred or dis-

= MERON YN Or RT CTR SRNR EIR

mR om ea

a dT a

12a

posed by the Secretary under his land exchange authority

from all other acquired lands which he cannot transfer

or dispose unless he “determines after consultation with

the Migratory Bird Conservation Commission that such

lands are no longer needed for the purposes for which

the System was established.”

It is concluded that the authority of the Secretary of

the Interior to make land exchanges granted by subsec-

tion 668(b) (3) is wholly independent of and not limited

by the purchase or rental provisions of section 715a. In

acquiring Darby Marsh in exchange for Navarre Marsh

the Secretary of the Interior acted under section 668dd

(b) (3). The lease back by the utility companies of a

portion of Navarre Marsh for wildlife refuge purposes,

as part of the land exchange, is deemed to be incidental

to the Secretary’s power to make a land exchange under

subsection 668dd(b) (3). The lease back therefore is not

subject to the rental provisions of section 715a.

In paragraphs 13, 14, 15, and 17, the plaintiffs claim

that four other statutes limit the Secretary’s land ex-

change discretion. The first of these is 16 U.S.C. § 668aa

(a) and (b) (1969). Carrying out purposes announced

in subsection 668aa(a), subsection 668aa(b) declares

that the Secretary of the Interior, the Secretary of Agri-

culture, and the Secretary of Defense together with the

heads of the various bureaus in their departments, shall

seek to protect species of wildlife, including migratory

birds, which are threatened with extinction. The subsec-

tion further declares it to be the policy of the Congress

that these officers “insofar as is practicable and consist-

ent with the primary purposes of such bureaus, agen-

cies, and services, shall preserve the habitats of such

threatened species on lands under their jurisdiction.”

Section 16 U.S.C. § 701 (1939) authorizes the Secretary

of the Interior “to adopt such measures as may be nec-

essary to carry out the purposes of this section and sec-

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ER ERE | Re RETA ty AE ALTAR ES INE EAI AOE ELE OS A Re NIP OG RAED if T

| z

13a

tion 667a of this Title, and to purchase game birds and ;

other wild birds.” The object of this section and section :

667e of this Title, among other things, is “to aid in the A

restoration of such birds in those parts of the United

States adapted thereto where the same have become

scarce or extinct.”

Title 16 U.S.C. § 742a(3) (1956), among other things,

declares that the provisions of section 742a-742j of this

title

. Shall be administered with due regard to the

inherent right of every citizen and resident of the

United States to engage in fishing for his own pleas-

ure, enjoyment, and betterment, and with the intent

of maintaining and increasing the public opportu-

nities for recreational use of our fish and wildlife

resources, ....

Section 742b(c), also cited by the plaintiffs, provides

that

[Ajll functions and responsibilities placed in the De-

partment of the Interior or any official thereof by

sections 742a-742j of this title shall be included

among the functions and responsibilities of the Sec-

retary of the Interior, as the head of the Depart-

ment, and shall be carried out under his direction.

The final section relied upon by the plaintiffs is sec-

tion 715i. A part of the Migratory Bird Conservation

Act, section 715i provides that areas of lands, waters,

or interests therein acquired or reserved pursuant to

sections of Title 16

. Shall, unless otherwise provided by law, be ad-

ministered by the Secretary of the Interior under

rules and regulations prescribed by him to conserve

and protect migratory birds in accordance with

a , : 2

<i ee

l4a

treaty obligations with Mexico and Canada, and

other species of wildlife found thereon, including

species that are threatened with extinction, and to

restore or develop adequate wildlife habitat.

Several of these recited sections spell out statutory

responsibilities of the Secretary of the Interior, dele-

gated to him by Congress, that must be met if our mi-

gratory birds and species of wildlife, faced with extinc-

tion, are to be conserved and protected. Other sections

charge the Secretary with administrative duties that

must be shouldered if due regard is to be given “to the

inherent right of every citizen and resident of the United

States to engage in fishing for his own pleasure, enjoy-

ment, and betterment” and “if the public opportunities

for recreational use of our fish and wildlife resources”

are to be maintained and increased. In sum, the plain-

tiffs contend that the Secretary of the Interior has failed

to meet these responsibilities and duties in exercising his

broad grant of authority to exchange lands in the Na-

tional Wildlife Refuge System in accordance with sec-

tion 668dd(b) (3). Plaintiffs’ contentions, though made

forcefully and in obvious good faith, do not make out a

legally sufficient claim, in the view of this court. This

is determined as a matter of law because Congress has

not expressly or implicitly made compliance with these

responsibilities and duties a condition of the exercise by

the Secretary of his authority to make land exchanges

under subsection 668dd(b) (3).

In specific conclusions none of the alleged statutory

limitations on subsection (b) (3) renders ultra vires the

exchange of Navarre Marsh for Darby Marsh admittedly

exercised under subsection 668dd(b)(3). Thus, the

amended complaint, as was true of the original com-

plaint, in the words of Judge Green, “may not be main-

tained as against the doctrine of sovereign immunity.”

Yet even if the doctrine of sovereign immunity were in-

BLEED THROUGH POOR COPY

15a

applicable the exercise of the Secretary’s plenary au-

thority to make land exchanges under section 668dd (b)

(3) is not reviewable under the Administrative Proce-

dure Act. The statutes cited by the plaintiffs in para-

graphs 13 through 18 of the amended complaint disclose

no congressional intention to limit section 668dd(b) (3).

Hence, the Secretary’s exercise of this plenary authority

is “agency action . . . committed to agency discretion by

law,” 5 U.S.C. § 701 (a) (2) and, therefore, not review-

able under the Administrative Procedure Act.

The questions presented by the motions to dismiss are

not factual and do not require the taking of evidence.

Instead, these questions should be adjudicated as matters

of law. The motions to dismiss the amended complaint,

brought by the Secretary of the Interior and by the

utility companies, are granted with prejudice.

IT IS SO ORDERED.

WILLIAM K. THomas

United States District Judge

16a

Nos. 71-1940 & 71-1941

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

SIERRA CLUB, ET AL.,

Plaintiffs-A ppellants

and Cross-A ppellees,

Vv.

WALTER J. HICKEL, ETC., ET AL.,

Defendants-A ppellees

and Cross-Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT, FOR

THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION.

Decided and Filed September 22, 1972.

Before WEICK, MCCREE, Circuit Judges, and FEIKENS,*

District Judge.

WEICK, Circuit Judge. Sierra Club and Citizens for

Clean Air and Water filed their complaint in the District

Court for declaratory judgment, restraining order and

equitable relief in which they sought to nullify a com-

pleted exchange of lands between the Secretary of Interior

and two public utility companies (Toledo Edison Company

and Cleveland Electric Illuminating Co., C.E.I.), made

two years previously, claiming that the exchange agree-

*The Honorable John Feikens, Judge, United States District

Court for the Eastern District of Michigan, sitting by designation.

BLEED THROUGH POOR COPY

17a

ment was improper and unauthorized and in derogation of

the Secretary’s statutory duties and void. They further

sought to enjoin the Director of the Atomic Energy Com-

mission and the Commission from holding hearings for the

issuance of a construction permit and to revoke the pre-

vious construction exemption granted by the Commission.

They further sought a declaration that the exchange of ;

lands violated a treaty with Mexico known as the “Con-

vention Between the United States of America and Mexico :

for the Protection of Migratory Birds and Game Mam- 3

mals” and a declaration that 16 U.S.C. § 688dd, under :

which statute the exchange was made, was unconsti-

tutional.

Motions to dismiss were filed by the Secretary and the

two utility companies and were submitted to District

Judge Green. In a memorandum opinion and order,

Judge Green held that plaintiffs had standing to sue but

granted the motions to dismiss on the grounds of sov-

ereign immunity and that agency action, committed by

law to agency discretion, was not reviewable by the courts.

Plaintiffs then filed an amended complaint which was a

radical departure from their original complaint. The

amended complaint contained only one cause of action

whereas the original complaint had set forth four. This

amended complaint sought only to declare that the transfer

of title from the United States to the two public utilities

“was and is an arbitrary and capricious act and consti-

tutes an abuse of discretion. Plaintiffs pray that this

Court implement said declaration by issuing an order

directing defendants Toledo Edison and C.E.I. to return

title to the Navarre Marsh to the United States.”? It is

significant that plaintiffs did not ask that the United

?The amended complaint abandoned Plaintiffs’ claim against the

Director of the Atomic Energy Commission and the Commission,

and also abandoned plaintiffs’ claims of treaty violation and the

alleged unconstitutionality of 16 U.S.C. § 668dd.

ee TEAR SSeS

18a

States be ordered to return to the utilities the title to the

land which the Government received from them in the

exchange. This omission, obviously, was not an oversight

on the part of the plaintiffs but a clear recognition on

their part of the salutary rule that no court has jurisdic-

tion to divest title of the United States to sovereign prop-

erty. Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949), rehearing denied, 338 U.S. 840

(1949). The position of the plaintiffs, if adopted by the.

Court, would leave the two utilities in a very precarious

position, losing the land which they acquired by exchange -

and also the Darby Marsh which they conveyed to the

Government. Plaintiffs, however, in their brief suggest

that the utilities may not be entirely without any remedy

as they might sue the United States in the Court of

Claims for damages for confiscating their property. This

is a hollow remedy as the utilities should be entitled to

the return of their property as a matter of right if the

exchange is rescinded.

The Secretary and the utilities filed a motion to dismiss

the amended complaint which was submitted to District

Judge William K. Thomas under the individual calendar

system. Judge Thomas considered the matter and in a

Memorandum Opinion and Order granted the motions to

dismiss on the same grounds as were relied on by District

Judge Green. The plaintiffs have appealed. The defend-

ants cross-appealed raising the issue of standing. We

affirm.

The Exchange of Lands

The two utilities which serve northern Ohio with electric

power are co-developers of the Davis-Besse Nuclear Power

Station. Initially, and prior to 1968, they had secured an

option on and later acquired the legal title to a 480-acre

tract of land in Ottawa County, Ohio, abutting on Lake

BLEED THROUGH POOR COPY

19a

Erie, and known as Darby Marsh. The United States

owned a tract of land in the same county bordering on

the lake and consisting of about 455 acres of marshland

and 77 acres in a corner most of which was upland. It

was known as the Navarre Marsh and is located~further

away from Port Clinton, Ohio, than Darby Marsh.

The United States, acting through its Department of

Interior, Fish and Wildlife Service, Bureau of Sport

Fisheries and Wildlife, entered into a written agreement

with the utilities to exchange the Navarre Marsh for the

Darby Marsh. As part of the consideration, the utilities

agreed to lease back to the United States, rent free for

fifty years, about 455 acres (except strips for water

canals) and another similar lease for twenty-five years of

adjacent lands for a wildlife refuge subject to certain

reserved rights. The utilities further agreed to spend up

to $175,000 to rebuild 3200 feet of dikes on the Darby

Marsh; maintain dikes on the north and south sides of

the Navarre Marsh, and install three electric pumps on

the Navarre Marsh to maintain proper water levels. The

exchange was completed on October 3, 1968, when the

utilities conveyed the Darby Marsh to the United States

and the Government conveyed Navarre Marsh to the

utilities. Upon completion of the exchange, the United

States had a wildlife refuge of twice the number of acres

it originally had (less the strips for canals and reserved

rights) and, in addition, the improvements and benefits

above related.

The Authority of the Secretary of Interior

In making the exchange, the Secretary acted under

the authority of 16 U.S.C. § 668dd ( d) (3) * which provides

as follows:

* This is the statute which plaintiffs originally claimed was un-

constitutional but later abandoned that claim.

o - ” * om me

LOS ILO LE ETE. TLC RES I | sat

BE =e . .

20a

“(b) In administering the System, the Secretary

is authorized—

* *# @

(3) to acquire land or interests therein by ex-

change (a) for acquired lands or public lands under

his jurisdiction which he finds suitable for disposition,

or (b) for the right to remove, in accordance with

such terms and conditions as the Secretary may pre-

scribe, products from the acquired or public lands

within the System. The values of the properties so

exchanged either shall be approximately equal, or if

they are not approximately equal the values shall be

equalized by the payment of cash to the grantor or to

the Secretary as the circumstances require.”

It will be noted, as plaintiffs agree, that the statute

confers broad discretion on the Secretary in the exchange

of lands. No conditions relating to the environment were

imposed in the statute. This is made clear by § 668dd (a)

which provides:

“(a) ... No acquired lands which are or become

a part of the System may be transferred or other-

wise disposed of under any provision of law (except

by exchange pursuant to subsection (b)(3) of this

section) unless (1) the Secretary of the Interior

determines after consultation with the Migratory

Bird Conservation Commission that such lands are

no longer needed for the purposes for which the

System was established, and (2) such lands are

transferred or otherwise disposed of for an amount

not less than (A) the acquisition costs of such lands,

in the ease of lands of the System which were pur-

chased by the United States with funds from the

migratory bird conservation fund, or (b) the fair

market value of such lands (as determined by the

Secretary of the date of the transfer or disposal), in

the case of lands of the System which were donated

to the System. The Secretary shall pay into the

migratory bird conservation fund the aggregate

BLEED THROUGH POOR COPY

2la

amount of the proceeds of any transfer or disposal

referred to in the preceding sentence.” (Italics added)

Plaintiffs contend that the Secretary violated 16 U.S.C.

§§ 701, 715a, 715i, 742a, 742b (c).

Sections 715 and 715i apply only to lands for purchase

or rent under §§ 715-715d, 715e, 715f-715k and 715]-

715r.

The remaining sections, namely, 16 U.S.C. $§ 701, 742

(a) (3) and 742b set forth the goals of the Department of

Interior under the Migratory Game and Insectivorous

Bird Chapter of Title 16. They contain no limitation on

the Secretaries’ authority in the exchange of lands.

The Administrative Procedure Act (APA) 5 U.S.C.

§ 701, et seq., relied on by plaintiffs, expressly excepts its

application to the extent that “agency action is com-

mitted to agency discretion by law” 5 U.S.C. § 701 (a)

(2). Since, as we have pointed out, the Secretary had

discretion to determine whether he should enter into the

agreement for the exchange of the lands, his action in

so doing is not reviewable by the courts. Panama Canal

Co. v. Grace Line, Inc., 356 U.S. 309 (1958); United

States v. Walker, 409 F.2d 477 (9th Cir. 1969 ); Knight

Newspapers, Inc. v. United States, 395 F.2d 353 (6th

Cir. 1968) ; Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964),

cert. denied, 381 U.S. 904 (1965).

III

Sovereign Immunity

The Supreme Court made it clear that in a case of this

type the crucial question “is whether the relief sought

in a suit nominally addressed to the officer is relief against

the sovereign.” Larson vy. Domestic Foreign Commerce

Corp., supra.

ETE SR MIAN ED RG, “HEN CoP

era

PRR AEC TO TR EA PTE AOS RY en Be emcee ai

LY RY PR RRIE OR RST

This is very easy to determine in the present case where

the plaintiffs are attacking the validity of a completed

exchange of lands between the sovereign and private per-

sons. Their claim that, since filing their amended com-

plaint, they are not now asking for any relief against

United States property is transparent. District Judge

Thomas in his Memorandum properly characterized it as

follows:

“Thus plaintiffs seqx to circumvent Judge Green’s

conclusion, in dismissing the original complaint, that

The relief sought is a declaration that the

land exchange is void and must be set aside as

a nullity. The effect of such a decree would be

to restore title to the lands involved to where

they stood prior to the exchange.

Plaintiffs argue that

Whatever claim the utilities might have as the

result of the granting of the relief which plain-

tiffs have requested, could certainly be protected

either by a cross-claim or a later action in the

Court of Claims.

Manifestly, if the doctrine of sovereign immunity

denies the jurisdiction of this court to declare the

exchange agreement a nullity then this court also

lacks jurisdiction to entertain a cross claim by the

utilities seeking restoration of Darby Marsh from

the Government, a disposition of ‘unquestionably sov-

ereign property,’ Larson, supra at 619 n.11.

Invoking the equitable powers of this court plain-

tiffs ask for an order directing defendants Toledo

Edison and CEI to return title of Navarre Marsh

to the United States.’ This court would not grant

this request for equitable relief without simultane-

ously ordering the Government to return Darby

Marsh to the utilities.

A decree in equity ‘should completely determine

the controversy before the court,’ Stonega Coke &

BLEED THROUGH POOR COPY

Coal Co. v. Price, 116 F.2d 618, 621 (4th Cir. 1940).

Partial or incomplete decrees should not be entered.

27 a aa 2d aie dee pag: In _—

graphic nguage, ‘equity delights to justice, an

that not by halves,’ 30 C.J.S. Equity §104 (1965).

Thus the equitable relief now sought, as before, in-

volves ‘the disposition of unquestionably sovereign

property’ and is barred by the doctrine of sovereign

immunity as set forth in Larson, supra at 691 n.11.”

Certainly if the United States were seeking to rescind

not rescind the exchange without restoring the utilities to

status quo, it hardly seems necessary to point out that a

stranger to the transaction stands in no better position.

We assume that plaintiffs made the Secretary of the

Interior a party defendant to this action for a definite

purpose, namely, to bind him as well as the United States

by any decree of the Court.

to the United States.”

As District Judge Thomas So aptly pointed out, the

Court would not issue such an order without restoring

title to Darby Marsh in the utilities. Stevens v. McCoy,

60 Ohio St. 540 (1899); 21 O. Jur. 2d, Exchange of

Property, §8; 30 Am. Jur. 2d, Exchange of Property

§ 41.

Equitable principles apply to the Government as well as

to private individuals except when limited by statutory

provisions. United States v. Detroit Timber & Lumber Co.,

200 U.S. 321 (1906); Jacobs v. United States, 239 F.2d

459 (4th Cir. 1956), cert. denied, 353 U.S. 904 (1957).

In Larson v. Domestic & Foreign Commerce Corp.,

supra, the Court said:

“The request for an adjudication of the validity of

the sale was thus, even in form, a request for an

adjudication against the sovereign. Such a declara-

tion of the rights of the respondent vis-a-vis the

United States would clearly have been beyond the

court’s jurisdiction.” Jd. p. 689 fn. 9.

It was argued that the action of the Secretary is in-

valid because it was based on an incorrect decision as to

both law and fact. This argument was effectively

answered in Larson, where the Court said:

“It is argued that an officer given the power to

make decisions is only given the power to make cor-

rect decisions. If his decisions are not correct, then

his action based on those decisions is beyond his au-

thority and not the action of the sovereign. There

is no warrant for such a contention in cases in which

the decision made by the officer does not relate to

the terms of his statutory authority. Certainly the

jurisdiction of a court to decide a case does not dis-

appear if its decision on the merits is wrong. And

we have heretofore rejected the argument that offi-

cial action is invalid if based on an incorrect deci-

sion as to law or fact, if the officer making the deci-

sion was empowered to do so. Adams v. Nagle, 303

U.S. 532, 542 (1938). We therefore reject that con-

Pe Rw.

tention here. We hold that if the actions of an offi-

cer do not conflict with the terms of his valid statu-

tory authority, then they are the actions of the

Sovereign, whether or not they are tortious under

general law, if they would be regarded as the ac-

tions of a private principal under the normal rules

of agency. A Government Officer is not thereby nec-

essarily immunized from liability, if his action is

eral law of torts. But the action itself cannot be

V. Domestic & Foreign Commerce Corp., supra, are:

Hawaii v. Gordon, 373 U.S. 57 (1963); Dugan v. Rank,

372 U.S. 609 (1956); Malone v. Bowdoin, 369 U.S. 643

(1962); See also Adams v. Nagle, 303 U.S. 532, 542

(1938).

In Ogletree v. McNamara, 449 F.2d 93 (6th Cir. 1971),

in referring to sovereign immunity, we said:

“Perhaps the minimum Statement of that doctrine

is that litigation must not be allowed to stop gov-

ernment in its tracks. Larson V. Domestic & For-

eign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct.

its form is controlling. The fact that the defendants

are all named as individuals does not change the

result.” (Citing authority.)

One thing is certain and that is that if a third person is

allowed to litigate the validity of exchanges of land made

‘

Be RRR Ee: CN NR RNS 6 enema

w= = err -

ddd sated eee |

26a

by the Secretary of Interior, whenever he believes that

the Secretary acted improperly, there will be no more

exchanges and the action of Congress providing for them

will be frustrated.

In Sergeant v. Fudge, 238 F.2d 916 (6th Cir. 1956),

we held that a litigant could not enjoin a decision by the

Postmaster General to discontinue a post office. Similarly,

in Manhattan Bronx Postal Union v. Gronouski, 350 F.2d

451, 455 (D.C. Cir. 1965), cert. den. 382 U.S. 978, the

Postmaster General’s refusal to recognize the Postal Union

was held not to be reviewable by the courts notwithstand-

ing the claim that the decision was “unlawful, arbitrary

and capricious” and “in violation of Executive Order No.

10988.”

The Court said:

“The short of appellants’ case is that appellee has

misconstrued the President’s instructions, and the

law is clear that an officer of the United States does

not act outside his authority whenever he acts upon

an erroneous decision of law or fact, if he is em-

powered to make the decision. See Larson v. Do-

mestic and Foreign Commerce Corp., supra, 337 U.S.

at 695, 703, 69 S.Ct. 1457; Arizona ex rel. Arizona

State Bd. of Public Welfare v. Hobby, 94 U.S.App.

D.C. 170, 221 F.2d 498 (1954); Seiden v. Larson,

supra, 88 U.S.App.D.C. at 263, 188 F.2d at 666.”

There is no question but that the Secretary of Interior

was empowered by § 688dd (b) (3) to make the exchange.

Furthermore, it should be pointed out that “the relief

requested cannot be granted by merely ordering the ces-

sation of the conduct complained of but will require affirm-

ative action by the sovereign on the disposition of unques-

tionably sovereign property.” Larson v. Domestic & For-

eign Commerce Corp., supra, fn. 11 at 691.

Here the United States and the two utilities have

owned, possessed and used for more than two years the

BLEED THROUGH POOR COPY

27a

lands which they respectively acquired by deeds of convey-

i ange. The District Court has no jurisdic-

tion to undo and unravel the transaction.

The Administrative Procedure Act does not waive

sovereign immunity in an action involving the Secretary

of Interior. Twin Cities Chippewa Tribal Council y. Min-

1320 (9th Cir. 1969) ; Motah v. United States, 402 F.2d

1 (10th Cir. 1968); Cotter Corp. v. Seaborg, 370 F.2d

686 (10th Cir. 1966); Chournos v. United States, 335

F.2d 918 (10th Cir. 1964) ; Cyrus v. United States, 226

F.2d 416 (1st Cir. 1955); Coalition for United Com-

munity Action y, Romney, 316 F.Supp. 742 (N.D. III.

1970).

Standing

We have difficulty in following the argument that plain-

tiff’s members were using and enjoying the marsh which

Plaintiff’s action was to set aside an exchange of lands.

It was not an action to enjoin the construction or opera-

tion of an atomic energy plant.

Since we have disposed of this case on its merits, it is

not necessary for us to decide the issue of standing.

The Dissent

The dissent states:

“Can a nuclear power plant and a wildlife refuge exist

side by side in the same marsh? That is the issue in this

PD SORE emma,

Titcsisssieionnaie ee

OE RO PET Re a

28a

case.” Respectfully disagreeing, that is not the issue in

this case. As before stated, the plaintiff’s action was not

to enjoin the construction or operation of a nuclear power

plant but rather to set aside an exchange of lands com-

pleted two years prior to the institution of this action and

without restoring the parties to the status quo. We have

shown that sovereign property cannot be taken from the

government by the courts. The dissent undertakes to do

this very thing contrary to the position taken by the

plaintiffs on this issue. The Secretary of Interior had full

authority to make the exchange and even if he erred in

fact or in law the courts have no jurisdiction to interfere.

Affirmed.

McCREE, Circuit Judge (concurring). I agree that the

doctrine of sovereign immunity bars plaintiffs’ action

against the Secretary. See Hawaii v. Gordon, 373 U.S.

57 (1963); Dugan v. Rank, 372 U.S. 609 (1963) ; Malone

v. Bowdoin, 369 U.S. 643 (1962); Larson v. Domestic &

Foreign Commerce Corporation, 337 U.S. 682 (1949);

see generally Cramton, Nonstatutory Review of Federal

Administrative Action: The Need for Statutory Reform

of Sovereign Immunity, Subject Matter Jurisdiction, and

Parties Defendant, 68 Mich. L. Rev. 387 (1970); Jaffe,

Suits Against Governments and Officers: Sovereign Im-

munity, 77 Harv. L. Rev. 1 (1963). And since this ac-

tion cannot be maintained against the Secretary, an inde-

pendent basis for suing the utility companies must appear

in the amended complaint, and my examination of the

pleadings discloses none. The complaint, construed most

favorably to the plaintiffs, does not contend that in the

land exchange the nongovernmental defendants injured

rights possessed by the plaintiffs. In these circumstances,

I believe that the complaint was properly dismissed. It

should be emphasized that this dismissal intimates no

view on any subsequent action that might be brought by

plaintiffs against the utilities to determine the rights and

BLEED THROLGH PQOARRP Copy

i eee re,

29a

duties of the parties respecting the utilization of Navarre

Marsh.

FEIKENS, District J udge (dissenting). There are com-

peting interests in our country between the need to pre-

serve our environment and the demand for new sources of

power and energy. It is not easy to find a proper balance

In the past decade, Congress has evidenced a clear man-

date that this task of balancing must be commenced.

The Sierra Club and the Citizens for Clean Air and

Water commenced this suit to seek a determination

whether the Secretary of the Interior made such a studied

balance in giving up a part of land in the National Wild-

life Refuge System so that a nuclear power plant could

be erected there.

In an affidavit which was filed in the District Court,

Secretary of the Interior Stewart Udall, who was in office

at the time of the exchange, testified:

“1. During the exchange negotiations and formal

exchange of Navarre Marsh for Darby Marsh in

1967-1968, I was the duly appointed Secretary of

the Department of the Interior for the government

of the United States.

“2. At and during the period of time during

which the aforesaid land exchange was under con-

sideration by the Department’s Bureau of Sports

Fisheries and Wildlife, I received only a superficial

explanation of the proposed land exchange. Due to

this fact, the ecological consequences of this trans-

action were not brought to my attention.

Very,

30a

“3. On the 15th day of February, 1971, the sworn

affidavits of Drs. Skoch, Trautman, and Meeks, as

well as those of Messrs. Van Camp, Lau, and Trench-

ard, were submitted to me. I have familiarized my-

self with the facts related therein.

“4. Had the facts stated in the aforementioned

affidavits been brought to my attention during the

Department’s decision-making process, I most prob-

ably would have refused to approve the exchange.

“5. Having read the aforesaid affidavits and hav-

ing familiarized myself generally with the proposed

Navarre Marsh construction plans of the electric

utility companies, e.g., the expected excavation and

laying of a submerged outflow pipe for the Davis-

Besse Plant, I join in the conclusion of the natural

scientists that irreparable damage will most prob-

ably be caused to a known, valuable wildlife refuge

area by further construction within its confines.”

The Navarre Marsh, the subject matter of this litiga-

tion, was acquired by the Government on May 5, 1967.

In October, five months later, the Secretary entered into

an agreement to transfer this land as a part of an ex-

change for another marsh. Presumably at the time of

its acquisition the Secretary followed statutory require-

ments and determined before purchase that this marsh

was necessary for the conservation of migratory birds

and other wildlife, 16 U.S.C. §715(a,, and yet five

months later, this land was bargained away. Plaintiffs

have asked that this transfer be set aside unless it can

be shown that the Secretary either followed the statute

under which he was proceeding by making a determina-

tion that the wildlife refuge was no longer necessary for

conservation purposes or by making a determination that

the exchange and the resultant use of the marsh would

not be harmful to the wildlife refuge system.

Of preliminary concern is the question of standing.

Standing, as recently stated by the Supreme Court in

Sierra Club v. Morton, 405 U.S. 727 (1972), requires a

preliminary showing of individual injury. This has been

satisfied here. Plaintiffs have alleged in their complaint:

“In addition, the Sierra Club and the Citizens for

Clean Air & Water represent a class composed of

their individual members who reside in the Northern

Ohio area and who have regularly used and enjoyed

the Navarre Marsh to observe and study the wild-

life which inhabit the Navarre Marsh and the mi-

gratory birds which frequent the Navarre Marsh as ;

a stopover point on their northerly and southerly

migrations, and other members of the Sierra Club

and Citizens for Clean & Water who regularly fish

in the area of Lake Erie adjacent to the Navarre 3

Marsh. Plaintiffs further state that the illegal and 3

improper exchange of Navarre Marsh for other ;

lands, has caused and will cause severe damage to é

the individual conservation and aesthetic interests

of their members as more particularly set forth

hereinafter.”

8la

Furthermore, it is clear that:

“. + + Once review is properly invoked, that person

may argue the public interest in support of his claim

that the agency has failed to comply with its statu-

tory mandate.” Sierra Club v. Morton, 405 U.S. 727

(1972).

So, since plaintiffs have shown requisite standing in mak-

ing their cause of action, they may properly assert the

public interest in framing their claims.

which he is required to act and that his conduct was

accordingly ultra vires.

16 U.S.C. § 701 requires the Secretary to preserve and

protect game and other wild birds.

32a

“The duties and powers of the Department of the In-

terior include the preservation, distribution, introduction

and restoration of game birds and other wild birds.”

16 U.S.C. § 715i directs him to protect migratory birds

in accordance with treaties with Canada and Mexico,

and to protect other wildlife and to develop adequate

wildlife habitats.

“§ 715i. Administration—Treaty obligations; rules

and regulations

“(a) Areas of lands . . . or interests therein ac-

quired or reserved pursuant to sections 715-715d,

715e, 715f-715k, and 715n-715r of this title shall,

unless otherwise provided by law, be administered

by the Secretary of the Interior under rules and

regulations prescribed by him to conserve and pro-

tect migratory birds in accordance with treaty obli-

gations with Mexico and Canada, and other species

of wildlife found thereon, including species that are

threatened with extinction, and to restore or develop

adequate wildlife habitat.”

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

other wildlife resources.

16 U.S.C. § 668aa(f), the Endangered Species of Fish

and Wildlife Act, is the act under which this exchange

was made (16 U.S.C. § 668dd(i)). Here Congress has

stated:

“. . The purposes of this Act are to provide a pro-

gram for the conservation, protection, restoration

and propagation of selected species of native fish and

wildlife, including migratory birds, that are threat-

ened with extinction.” 16 U.S.C. § 668aa.

These sections illustrate strong congressional intent to

preserve our environment and the natural habitat of

birds and other wild animals. In this respect, it would

be well to keep in mind the congressional admonition

i—--t a —- —a oe a a || - Pee

found in the National Environmental Policy Act (42

U.S.C. § 4331) that:

ef continuing policy of the Federal Goy-

| ernment, in cooperation with State and local govern-

33 a

ments, and other concerned public and private or-

ganizations to use all practicable means and meas-

ures, including financia] and technical assistance, in

]

“y

lear)

+S]

j=)

LOR SY RATE

harmony, and fulfill the social, economic, and other

requirements of present and future generations of

Americans.” 42 U.S.C. § 4331 (a). (Emphasis add-

ed.)

The section under which the Secretary acted states:

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

authorized—

* * * a

(3) to acquire lands or interests therein by ex-

change (a) for acquired lands or public lands

. . . Which he finds suitable for disposition. . .”

16 U.S.C. § 668dd(b) (3).

This language is part of the Endangered Species of Fish

and Wildlife Act added in 1966.

PR AAEM ERIE ERIE Lt oS RISMEDIA

*I do not intimate that a retroactive application of the E.P.A.

is the cornerstone of plaintiffs’ complaint although some courts have

act, smong others, indicates the atti-

legislation relative to the environ-

LEGS SEIDEN, OLE IE LOOT TATE a Tate OT I cary

34a

program for the conservation, protection, restoration and

propagation of selected species of native fish and wildlife,

including migratory birds, that are threatened with ex-

tinction.” 16 U.S.C. § 668aa.

“(b) It is further declared to be the policy of Con-

gress that the Secretary of the Interior, the Secre-

tary of Agriculture, and the Secretary of Defense,

together with the heads of bureaus, agencies, and

services within their departments, shall seek to pro-

tect species of native fish and wildlife, including

migratory birds, that are threatened with extinc-

tion, and, insofar as is practicable and consistent

with the primary purposes of such bureaus, agencies

and services, shall preserve the habitats of such

threatened species on lands under the jurisdiction.”

16 U.S.C. § 668aa(b).

This direction of Congress requires the Secretary to

protect endangered species and to consider the effect that

an exchange of land would have on such species.

It is contended that these purpose clauses impose no

legal duty upon the Secretary. There are, however, some

limits on the Secretary’s action; otherwise, the statute

would be infirm as an unconstitutional delegation of

authority. If there are no standards by which it is pos-

sible to determine “whether the will of Congress has

been obeyed,” the delegation is too vague.

As the Supreme Court stated in Stark v. Wickard, 321

U.S. 288, 309-310 (1944):

“When Congress passes an Act empowering ad-

ministrative agencies to carry on governmental ac-

tivities, the power of those agencies is circumscribed

by the authority granted. This permits the courts

to participate in law enforcement entrusted to ad-

ministrative bodies only to the extent necessary to

protect justiciable individual rights against admin-

istrative action fairly beyond the granted powers.

rma? ES ee ., 1+=$j=<==s ses wee 6 mee et aS ee

rf SEE ODDS eI OG OTT —

» a SRR mR ee 65 er OR Ee a ?

35a

The responsibility of determining the limits of stat-

utory grants of authority in such instances is a ;

judicial function entrusted to the courts by Congress ;

by the statutes establishing courts and marking

their jurisdiction.”

Section 668dd(b) (3) which exempts exchanges from

certain statutory requirements is cited. Even though the

exchange exemption has been broadened and applies only

to the stated statutory objective (for example, he is obli-

gated to consult with the Migratory Bird Conservation

Commission), the exchange power is still subject to re-

view under the general purpose clause of the statutes

cited.

Since the administrative regulations do not detail the

purposes for which exchanges may be made, the court

must turn to the only guidelines available—the general

purposes for which the various environmental statutes

were enacted.

An agency may not exercise uncontrollable discretion—

to hold otherwise would be to depart from those principles

of government to which we have long adhered.

Since the Secretary may have chosen to act without

regard to statutory standards, this court should require

a trial to determine if the action was unlawful. To hold

the cause unreviewable does not resolve the question of

administrative discretion. It is precisely the function of

the trial to determine if the Secretary did act within the

powers granted him.

power plant in the Navarre Marsh is not incompatible

with the National Wildlife Refuge System, this court

would not have to perform the task which the government

now so strenuously opposes. It is this inquiry that must be

made.

TR ERM ITE Cr oeasNN oe a |

SOE RR ROE ep ge oe

Plaintiffs allege that the Secretary acted without regard

to the effect his action would have on birds and other

endangered species which habitate Navarre Marsh. If

this is so, the exchange must be set aside.

Defendants argue that even though the Secretary may

have abused his discretion, his action is unreviewable

even for abuse because it is “action committed to agency

discretion.” The Administrative Procedure Act (5 U.S.C.

§ 701) states that judicial review of agency action may be

made except where “agency action is committed to agency

discretion by law.”

The Supreme Court has stated in Abbott Laboratories

v. Gardner, 387 U.S. 136, 140-41 (1967), that “. . . ju-

dicial review . . . will not be cut off unless there is per-

suasive reason to believe that such was the purpose of

Congress” and that the Administrative Procedure Act

“embodies the basic presumption of judicial review . . . so

long as no statute precludes such relief or the action is not

one committed by law to agency discretion, . . .” and that

the Act’s “generous review provisions must be given a

‘hospitable’ interpretation.”

Of prime importance is legislative intent. After care-

ful study of the legislative history of these provisions, I

can find no intent to preclude review. Although there is

indication that the Secretary has wide discretion, there is

no hint that the discretion is boundless, or not subject to

review for abuse.

An analysis of cases involving agency actions that have

been held unreviewable illustrates a pattern. The courts

have held that cases which involve political questions,

United States v. Sisson, 396 U.S. 812 (1969), questions

concerning military matters, Curran v. Laird, 420 F.2d

122 (D.C.Cir. 1969), or matters involving administrative

expertise, Panama Canal Co. v. Grace Line, Inc., 356 US.

309 (1958), see also Kletschka v. Driver, 411 F.2d 436

(2nd Cir. 1969), are not reviewable.

BLEED THROUGH POOR COPY

Where, however, as here, the question is appropriate for

court review because it involves matters suitable for

judicial resolution, courts have not hesitated to review.

As stated in Citizens to Preserve Overton Park, Ine. v.

Volpe, 401 U.S. 402, 410 (1971):

“. + . the Secretary’s decision here does not fall with- ;

in the exception for action ‘committed to agency

discretion.’ This is a very narrow exception. Berger, ;

Administrative Arbitrariness and Judicial Review,

65 Col. L. Rev. 55 (1965). The legislative history '

of the Administrative Procedure Act indicates that ;

it is applicable in those rare instances where ‘stat-

utes are drawn in such broad terms that in a given

case there is no law to apply.’” S. Rep. No. 752,

79th Cong., Ist Sess., 26 (1945).

Here it is clear that there is law to apply. The question

for trial is whether there are sufficient findings to support

the conclusion that the Navarre Marsh can contain a nu-

clear power plant and still protect migratory birds—that

the Navarre Marsh containing a nuclear power plant does

not endanger birds or animals threatened with extinction.

See 16 U.S.C. § 668aa(f).

The majority contend that regardless of any breach of

duty by the Secretary, this action must be dismissed be-

cause of sovereign immunity, relying upon Larson v. Do-

mestic and Foreign Commerce Corp., 337 U.S. 682 (1949).

This contention is not sound. :

Larson involves a case where plaintiffs alleged that the

Government breached its contract with the plaintiff. The

Supreme Court held that the action was barred by sov-

ereign immunity. The Court held that the sales agent

had the power to construe the contract:

“There is no allegation of any statutory limitation

on his powers as a sales agent. In the absence of

such a limitation he, like any other sales agent, had

the power . . . to refuse delivery in cases in which

— — age nee ———

37a

ay ee

perm eee ou me

he believed that the contract terms had not been

complied with. His action in so doing in this case

was, therefore, within his authority even if, for pur-

poses of decision here, we assume that his construc-

tion was wrong and that title to the coal had, in

fact, passed to the respondent under the contract.”

337 U.S. at 703.

The principle enunciated in Larson only applies where an

agent has authority to act but wrongfully under general

contract or tort theory. It does not apply where the cause

of action, as here, is based upon the Secretary’s alleged

failure to follow the statute:

“ . . [Whhere the officer’s powers are limited by

statute, his actions beyond those limitations are con-

sidered individual and not sovereign actions. The

officer is not doing the business which the sovereign

has empowered him to do or he is doing it in a way

which the sovereign has forbidden. His actions are

ultra vires his authority and therefore may be made

the object of specific relief.” 337 U.S. at 689.

This teaching applies squarely to the case before us.

Plaintiffs’ cause of action rests on the language of the

statute. It imposes a duty on the Secretary to consider

environmental effects, and the effect on the wildlife sys-

tem as a whole before he transfers land out of the sys-

tem. If he has not done so his action is ultra vires.

The land exchange is prohibited if inconsistent with a

“program for the conservation, protection, restoration

and propagation of selected species of native bird and

wildlife, including migratory birds, that are threatened

with extinction.” (16 U.S.C. § 668aa), or if it does not

“seek to protect species of active bird and wildlife, in-

cluding migratory birds, that are threatened with extinc-

tion.” (16 U.S.C. § 668aa(b)). These are the statutory

standards.

The majority contend that to allow this suit -vould

stop the Government in its tracks. Perhaps, on a trial,

that would be the result here. The courts have never

there is a balance between the congressional purpose of

protecting our wildlife and our environment with our

need for power. It is possible that a nuclear power plant

can exist in the Navarre Marsh and not harm the en-

authority. Sovereign immunity cannot be used as a shield

to prevent inquiry. If so, we will most certainly lose the

fight to conserve and preserve our environment. The

Executive Department of government cannot hide behind

such an immunity. The utilities, too, should be interested

in the inquiry involved in a trial. The American people

yearn for solutions that would provide both additional

power and a preserved environment. The utilities can

make a great and continuing contribution by pointing

the way.

If, as a result of a determination at trial that the

exchange was made without a proper determination of

munity, the form of remedy does not make it so. Once

it is determined that the Government acted illegally, a

court of equity has full power to restore the parties to

the status quo ante. As stated in Knox Hill Tenant

Council v. Washington, 448 F.2d 1045, 1052-53, (D.C.

Cir. 1971),

ee es |

Ne tila ad ete aa aa

40a

“To the extent that sovereign immunity survives as

an assurance that courts, rather than the Congress,

will not dictate the disposition or uiilization of prop-

erty which belongs to all the people and which, with

reason in democratic theory, has been imme-

morially thought to reside under the legislative will,

we find no threshold jurisdictional bar in the record

before us. There is nothing new about judicial en-

tertainment of suits which charge that federal offi-

cials are acting outside of, or in conflict with, the

responsibilities laid upon them by the Congress or the

Constitution. Whether such charges are true, and,

if so, what remedial action the court should or may

direct, are questions partaking of the merits, and

not of jurisdiction to explore the merits.

“If, after trial, it be found that appellees do in fact

have a responsibility for the property in their care

which they are not recognizing adequately, the

court’s power, at the least, to declare that responsi-

bility and to define that default is not dissipated

solely by the circumstances that legal title to the

property is in the United States. To hold otherwise

would be to say that sovereign immunity forecloses

any judicial inquiry whatsoever into the custodian-

ship by a federal official of federal property. There

is no magic about real estate, or its ownership by

the United States, which hedges its guardians about

with an immunity not available to other executants

if public policies committed to their care by the

Congress.”

To the same effect, Bob Jones University v. Connally,

341 F. Supp. 277, 284 (D.S.C. 1971):

“It has long been recognized that the so: ereirn can-

not act illegally or unconstitutiona!lly and, therefore,

if an act or threatened action is unconstitutional or

illegal it is not the action of the sovereign and such

acts or threatened acts can be enjoined.”

SE LT a ai AE SAR RR NE EE IS ION TE eK oe ET I, DS "?

gyre

4la

PS Oe

The same principals apply here.

For my brother Judge McCree, sovereign immunity

stands as a bar. | respectfully disagree. In his 1970 E-

Supplement to Administrative Law Treatise, Professor t

Davis says (Section 27.00-4, p. 905):

“Sovereign immunity often produces an uncivilized

result, because what counts—what determines who

gets the property, for instance—is not reason but

force, not law but power, not orderly adjudication

but physical taking by the stronger party, not re-

finements the sum of which we call civilization but

crudities that are sometimes characteristic of primi- 2

tive men.” .

Professor Davis continues as page 906:

“A thoughtful district judge recently said that SOv-

ereign immunity ‘rests either on the theory that the

United States is the institutional descendant of the

Crown and enjoys its immunity or on a metaphysi-

cal doctrine that there can be no legal right as

against the authority that makes the law.’ *°”

Accordingly, I would reverse the dismissal (granted

on motion) and require the cause to proceed to trial.

Plaintiffs, as a matter of law, have the burden of proof,

but the vital requirement—the inquiry, in court, to de-

termine whether here there is a balance between com-

peting interests—is essential.

°° Martyniuk v. Pennsylvania. 282 F.Supp. 252, 255 (E.D.

Pa. 1968).

—_— en FN SE LEE ECE LEER Herr,

SP aE . : .

42a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 71-1940

[Filed Sep. 22, 1972, James A. Higgins, Clerk]

SrERRA CLUB and CITIZENS FOR CLEAN AIR AND WATER,

Plaintiffs-Appellants,

Vv.

WALTER J. HICKEL, individually and as Secretary of the

Interior, DEPARTMENT OF THE INTERIOR, PETER A.

Morris, THE TOLEDO EDISON COMPANY, THE CLEVE-

LAND ELECTRIC ILLUMINATING COMPANY,

Defendants-A ppellees.

Before: WEICK and McCree, Circuit Judges, and

FEIKENS, District Judge.

JUDGMENT

APPEAL from the United States District Court for

the Northern District of Ohio.

THIS CAUSE came on to be heard on the record from

the United States District Court for the Northern Dis-

trict of Ohio and was argued by counsel.

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 the same

is hereby affirmed.

It is further ordered that defendants-appellees recover

from plaintiffs-appellants the costs on appeal, as itemized

_—s- ee oo a i ae ee ee ee,

below, and that execution

trict Court.

ee ee ee

48a

therefor issue out of said Dis-

Entered by order of the

Court

/s/ James A. Higgins

Clerk

A True Copy

Attest:

a aa

JAMES A. HIGGINS

Clerk

Stat ey as 1, 4 ne

a ee TF |

44a

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 71-1940 and -1941

[Filed Oct. 26, 1972, James A. Higgins, Clerk]

SIERRA CLUB, ET AL.,

Plaintiffs-Appellants

and Cross-Appellees.

Vs.

WALTER J. HICKEL, ETC., ET AL.,

Defendants-A ppellees

and Cross-Appellants.

ORDER

Before WEICK and MCCREE, Circuit Judges, and

FEIKENS,* District Judge.

The motion for a rehearing in banc has been treated

as a petition for rehearing with a suggestion that it be

heard in bane. Rule 35, Fed. R.App.P. No member of

the panel or active Judge requested that a vote be taken

on said sugges:ion; the petition for rehearing was con-

sidered by the panel, and it is hereby denied. Judge

Feikens dissents.

ENTERED BY ORDER OF THE

CouURT

/s/ James A. Higgins

Clerk

*The Honorable John Feikens, Judge, United States District

Court for the Eastern District of Michigan, sitting by designation.

45a

APPENDIX B

APPLICABLE STATUTES AND REGULATIONS

1, Administration of Nationa] Wildlife Refuge System,

16 U.S.C. 668dd

§ 668dd. National Wildlife Refuge System.

(a) Designation; public land withdrawals; disposal of

acquired lands; proceeds.

For the purpose of consolidating the authorities relating

to the various categories of areas that are administered

by the Secretary of the Interior for the conservation of

fish and wildlife, including species that are threatened

with extinction, all lands, waters, and interests therein

administred by the Secretary as wildlife refuges, areas

for the protection and conservation of fish and wildlife

that are threatened with extinction, wildlife ranges, game

ranges, wildlife management areas, or waterfowl produc-

tion areas are hereby designated as the “National Wildlife

Refuge System” (referred to herein as the “System”) ,

which shall be subject to the provisions of this section.

Nothing contained in this Act shall restrict the authority

of the Secretary to modify or revoke public land with-

drawals affecting lands in the System as presently con-

stituted, or as it may be constituted, whenever he deter-

mines that such action is consistent with the public in-

terest. No acquired lands which are or become a part of

the System may be transferred or otherwise disposed of

under any provision of law ( except by exchange pursuant

to subsection (b) (3) of this section) unless (1) the Sec-

retary of the Interior determines after consultation with

the Migratory Bird Conservation Commission that such

lands are no longer needed for the purposes for which

the System was established, and (2) such lands are

transferred or otherwise disposed of for an amount not

less than (A) the acquisition costs of such lands, in the

ARPT een eT oN Ae tate

vet ENG 5 at

met eS

a OG AI a. cay ree ere

46a

case of lands of the System which were purchased by the

United States with funds from the migratory bird con-

servation fund, or (B) the fair market value of such

lands (as determined by the Secretary as of the date of

the transfer or disposal), in the case of lands of the

System which were donated to the System. The Secretary

shall pay into the migratory bird conservation fund the

aggregate amount of the proceeds of any transfer or

disposal referred to in the preceding sentence.

(b) Administration; public accommodations contracts;

acceptance and use of funds; exchange of properties;

cash equalization payments.

In administering the System, the Secretary is

authorized—

(1) to enter into contracts with any person or

public or private agency through negotiation for the

provision of public accommodations when, and in

such locations, and to the extent that the Secretary

determines will not be inconsistent with the primary

purpose for which the affected area was established.

(2) to accept donations of funds and to use such

funds to acquire or manage lands or interests therein,

and

(3) to acquire lands or interests therein by ex-

change (a) for acquired lands or public lands under

his jurisdiction which he finds suitable for disposi-

tion, or (b) for the right to remove, in accordance

with such terms and conditions as the Secretary may

prescribe, products from the acquired or public lands

within the System. The values of the properties so

exchanged either shall be approximately equal, or

if they are not approximately equal the values shall

be equalized by the payment of cash to the grantor or

to the Secretary as the circumstances require.

—

47a

2. Endangered Species Conservation Act of 1969, 16

U.S.C. 668aa et seq.

§ 668aa. Congressional findings, declaration of policy,

and statement of purposes; endangered species;

publication in Federal Register; “fish and wild-

life” defined.

migratory birds, that are threatened with extinction. The

purposes of this Act are to provide a program for the

conservation, protection, restoration, and propagation of

selected species of native fish and wildlife, including

migratory birds, that are threatened with extinction.

(b) It is further declared to be the policy of Congress

that the Secretary of the Interior, the Secretary of Agri-

culture, and the Secretary of Defense, together with the

heads of bureaus, agencies, and services within their

departments, shall seek to protect species of native fish

and wildlife, including migratory birds, that are threat-

ened with extinction, and, insofar as is practicable and

consistent with the primary purposes of such bureaus,

agencies, and services, shall preserve the habitats of such

threatened species on lands under their jurisdiction.

garded as threatened with extinction whenever the Secre-

CMPONPEL Tat ESD Org

= cate 1

48a

tary of the Interior finds, after consultation with the

affected States, that its existence is endangered because

its habitat is threatened with destruction, drastic modi-

fication, or severe curtailment, or because of overexploita-

tion, disease, predation, or because of other factors, and

that its survival requires assistance. In addition to con-

sulting with the States, the Secretary shall, from time to

time, seek the advice and recommendations of interested

persons and organizations including, but not limited to,

ornithologists, ichthyologists, ecologists, herpetologists, and

mamalogists. He shall publish in the Federal Register the

names of the species of native fish and wildlife found to

be threatened with extinction in accordance with this

subsection.

(d) For the purpose of sections 668aa through 668cc

of this title, the term “fish and wildlife” means any wild

mammal, fish, wild bird, amphibian, reptile, mollusk, or

crustacean. (Pub. L. 89-669, § 1, Oct. 1, 1966, 80 Stat.

926; Pub. L. 91-135, § 12(a), (e), Dec. 5, 1969, 83 Stat.

282, 283.)

§ 668bb. Powers and duties of Secretary of Interior.

* * € *

(d) Administrative review and utilization of other pro-

grams; encouragement of, consultations with, and

assistance to other Federal agencies for carrying

out endangered species program; appropriations for

acquisition of privately owned areas.

The Secretary shall review other programs adminis-

tered by him and, to the extent practicable, utilize such

programs in furtherance of the purpose of this Act. The

Secretary shall also encourage other Federal agencies to

utilize, where practicable, their authorities in further-

ance of the purpose of this Act and shall consult with

and assist such agencies in carrying out endangered spe-

a |

cies program. The Secretary is authorized to acquire by

purchase, donation, exchange, or otherwise any privately

owned land, water, or interests therein with the bound- Me

aries of any area administered by him, for the purpose e

of conserving, protecting, restoring, or propagating any i

of this sentence. (Pub. L. 89-669, §2, Oct. 15, 1966,

80 Stat. 926; Pub. L. 91-135, $12(b), (¢), Dee. 5, 1969,

)

PIS AOL A LO ee

3. Preservation of Game and Wiid Birds, 16 U.S.C. 701

§701. Game and wild birds; preservation.

The Secretary of the Interior shall from time to time

collect and publish useful information as to the propaga-

RRS, RCRD RAR PE OES mR PER ID RORY EAS SRR RIRRCIER RIS fp a | a

the Interior shall make and

needful rules and regulations for carrying

said sections, and shall expend for

said purposes such sums as Congress may appropriate

therefor. (May 25, 1900, ch. 553, §1, 31 Stat. 187;

1939 Reorg. Plan No. Il, §4(f), eff. July 1, 1939, 4

F. R. 2731, 53 Stat. 1433.)

4. Fish and Wildlife Act of 1956, 16 U.S.C. 742a

§ 742a. Declaration of policy.

The Congress declares that the fish, shellfish, and wild-

life resources of the Nation make a material contribu-

tion to our national economy and food supply, as well

as a material contribution to the health, recreation, and

well-being of our citizens; that such resources are a liv-

ing, renewable form of national wealth that is capable

of being maintained and greatly increased with proper

management, but equally capable of destruction if neg-

lected or unwisely exploited; that such resources afford

outdoor recreation throughout the Nation and provide

employment, directly or indirectly, to a substantial num-

ber of citizens; that the fishing industries strengthen the

defense of the United States through the provision of a

trained seafaring citizenry and action-ready fleets of sea-

worthy vessels; that the training and sport afforded by

fish and wildlife resources strengthen the national de-

fense by contributing to the general health and physical

fitness of millions of citizens; and that properly devel-

oped, such fish and wildlife resources are capable of stead-

ily increasing these valuable contributions to the life of

the Nation.

The Congress further declares that the fishing indus-

try, in its several branches, can prosper and thus fulfill

its proper function in national life only if certain funda-

mental needs are satisfied by means that are consistent

BLEED THROUGH POOR Cory

a ae

a —— es ee eee: 2

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5la

with the public interest and in accord with constitutional

functions of governments. Among these needs are:

(1) Freedom of enterprise—freedom to develop

new areas, methods, products, and markets in ac-

cordance with sound economic principles, as well as

freedom from unnecessary administrative or legal

restrictions that unreasonably conflict with or ignore

economic needs;

(2) Protection of opportunity—maintenance of an

economic atmosphere in which domestic production

and processing can prosper; protection from subsi-

ized competing products; protection of opportunity

to fish on the high seas in accordance with interna-

tional law;

lations, better health standards and sanitation; and

including, but not limited to—

(a) services to provide current information

on production and trade, market promotion and

development, and an extension service.

(b) research services for economic and tech-

nologic development and resource conservation,

and

in fishing for his own pleasure, enjoyment, and better-

ment, and with the intent of maintaining and increasing

the public opportunities for recreational use of our fish

and wildlife resources, and stimulating the development

of a strong, prosperous, and thriving fishery and fish

processing industry. (Aug. 8, 1956, ch. 1036, §2, 70

Stat. 1119.)

5. Interior Department, Public Lands Regulations

43 C.F.R. 2204—Approval of Exchange and Subsequent

Action

§ 2204.2 Right to reject.

§ 2204.2-1 Basis for denial.

An application may be rejected at any time prior to

the issuance of patent or other instrument of transfer.

Exchanges will not be consummated, in the discretion of

the authorized officer when, for example, after public

notice—

(a) An appropriate public requirement for the select-

ed property is identified, or

(b) Information is received which establishes that the

exchange is not in the public interest.

6. Administrative Procedure Act, 5 U.S.C. 706

§ 706 Scope of review.

To the extent necessary to decision and when pre-

sented, the reviewing court shall decide all relevant ques-

tions of law, interpret constitutional and statutory pro-

visions, and determine the meaning or applicability of

the terms of an agency action. The reviewing court

shall—

(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be—

(A) arbitrary, capricious, an abuse of dis- ;

cretion, or otherwise not in accordance with :

(B) contrary to constitutional right, power,

privilege, or immunity;

thority, or limitations, or short of statutory

right;

(D) without observance of procedure required

by law;

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an agency

hearing provided by statute; or

(F) unwarranted by the facts to the extent

that the facts are subject to trial de novo by

the reviewing court.

In making the foregoing determinations, the court shall

review the whole record or those parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error. Pub. L. 89-554, Sept. 6, 1966, 80 Stat.

393.

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54a

APPENDIX C

LAND EXCHANGE STATISTICS

Various agencies of the federal government have en-

gaged in the following land exchanges during the past five

to ten years:

L National Wildlife Refuge System, administered by

the Bureau of Sports Fisheries and Wildlife

Number of * Acreage Acreage *

Fiscal Year Exchanges Acquired Divested

1960 1,587

1961 348

1962 853

1963 1,618

1964 1,086

1965 3,587

1966 3,050

1967 2,302

1968 9,392

1969 8 1,148 1,069

1970 14 3,772 3,243

1971 17 2,096 2,134

1972 7 1,551 1,643

* Statistics only available for the past four years.

Source:

Approximate figures supplied by the Division of Realty,

Bureau of Sports Fisheries and Wildlife,

of the Interior.

U.S. Department

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55a

II. National Park Service

Appraised Appraised

Nonfederal or* Federal or*

1961 9 920.07 148,190.00 481.94 127,350.00

1962 17 4,408.39 248,089.00 4,786.13 89,312.00

1963 19 10,669.22 193,083.00 2,454.07 37,747.00

1964 35 4,007.05 1,533,507.00 9,725.02 1,473,972.00

1965 19 29,872.05 1,742,706.00 28,718.07 1,368,795.00

1966 10 3,511.01 818,200.00 4,944.71 806,400.00

1967 7 8,635.39 67,953.00 2,163.42 67,894.00

1968 14 4,481.92 924,475.00 4,952.74 1,049,225.00

* Appraised or Estimated Value not available for a few of the

parcels acquired or exchanged.

Source: Realty Office, National Park Service, U.S. Department of

Interior (statistics since 1968 not available).

III. Forest Service

Fiscal Number of Offered Selected

Year Exchanges Acres Value Acres Value

1965 105 62,616.70 10,611,078.43 42,758.13 9,625,812.07

1966 128 = 166,190.24 16,097,778.70 148,650.79 15,347,763.18

1967 158 91,792.80 13,504,252.24 74,044.93 12,337,534.58

1968 122 53,296.78 5,799.111.00 51,932.47 _5,268,699.00

1969 169 90,872.40 < )' \ 14 65,954.74 24,469,927.15

1970 161 80,150.51 16,40,470.85 53,042.65 15,289,046.40

1971 182 88,396.93 29,803,874.00 62,301.99 27,631,685.00

1972 145 99,814.16 25,789,244.00 66,225.18 24,310,008.00

Source: Director of Lands, Forest Service, U.S. Department of

Agriculture.

oe ey ee OR’ OT. FT OY Ae ALT CT ROY LIE” 1 li iat i al NORTON MEO TEO TT He —

56a

IV. Bureau of Land Management

Fiscal Number of

Year Exchanges Acreage Received Acreage Exchanged

1966 181 335,392.63 384,593.19

1967 199 216,557.27 254,239.13

1968 202 261,019.92 349,128.78

1969 253 332,581.40 327,141.88

1970 212 174,076.77 190,117.02

1971 209 196,770.65 191,676.34

Sources: U.S. Department of the Interior, Public Land Statistics;

1966/Table 24, p. 54; 1967/Table 24, p. 54; 1968/Table 24,

p. 54; 1969/Table 26, p. 52; 1970/Table 26, p. 52; 1971/Table

26, p. 54.

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57a

APPENDIX D

OTHER LAND EXCHANGE STATUTES

in addition to those in Appendix B relating

to the National Wildlife Refuge System:

I National Park Service of the Department of Interior

(16 U.S.C. 51] Yosemite National Park; ex-

change of privately owned lands in park

The Secretaries of the Departments of Interior

and Agriculture, for the purpose of eliminating

lands and timber thereon within the park,

necessary conveyances of park and national

forest timber or timber and lands to be made

by said secretaries, respectively. The secre-

taries of the said departments are authorized

to acquire title in fee by the exchange of lands

of the United States for patented lands not

‘exceeding six hundred and forty acres in the

Sierra and Stanlislaus National Forests, ad-

jacent and contiguous to the Yosemite National

Park, and when such patented lands are thus

acquired, said lands shall become a part of the

Yosemite National Park and be subject to all

7 PEN, FI ATT OT

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58a

the provisions of sections 55, 61, 471¢ and 471d

of this title.

B. [16 U.S.C. 430g-2] Gettysburg National Mili-

tary Park; exchange of lands.

The Secretary of the Interior is authorized

to have competent and disinterested appraisals

made as to the value of not more than twenty-

three acres of land in Gettysburg National

Military Park, in the state of Pennsylvania,

such land lying generally between East Confed-

erate Avenue and Wainwright Avenue, and being

situated adjacent to the present high-school

property in that area. Upon the basis of such

appraisals, the Secretary is authorized to convey

such property for public-school purposes to the

State of Pennsylvania, or the appropriate local

agency thereof, the conveyance to be made in

exchange for non-Federal land of approximately

equal value, which land, upon acceptance by the

United States, shall become a part of Gettysburg

National Military Park.

II. Forest Service of the Department of Agriculture:

(7 U.S.C. 1011] Powers of Secretary of Agriculture

To effectuate the program provided for in

section 1010 of this title, the Secretary is

authorized—

pose of, with or without a consideration, any

property so acquired, under such terms and

conditions as he deems will best accomplish the

purposes of sections 1010-1013 of this title,

but any sale, exchange, or grant shall be made

only to public authorities and agencies and only

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on condition that the property is used for public

purposes: Provided however, That an exchange

may be made with private owners and with sub-

divisions or agencies of State governments in any

case where the Secretary of Agriculture finds

that such exchange would not conflict with the

purposes of sections 1001-1005d, 1006, 1006c-

1006e, 1007, and 1008-1029 of this title, and

that the value of the property received in ex-

change is substantially equal to that of the

property conveyed.

III. Bureau of Land Management of the Department of

Interior:

A. [16 U.S.C. 485] Exchange of lands in national

forests; cutting timber in national forests in

exchange for lands therein.

When the public interests will be benefited

thereby, the Secretary of the Interior is author-

ized in his discretion to accept on behalf of the

United States title to any lands within the ex-

terior boundaries of the national forests which,

in the opinion of the Secretary of Agriculture,

are chiefly valuable for national-forest purposes,

and in exchange therefor may patent not to

exceed an equal value of such forest land, in

the same State, surveyed and non-mineral in

character * * * *,

- [48 US.C. 315g] Acceptance of donations of

land; exchange of lands; notice of contemplated

exchange; reservation of minerals; easements or

rights of use; fee for exchange.

(b) When public interests will be benefited

thereby the Secretary is authorized to accept on

behalf of the United States title to any privately

et ho

a aki eel ak chee

Ohh. MORO pa IW a rmeT ORS

SS SE a ae Ser

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60a

owned lands within or without the boundaries

of a grazing district, and in exchange therefor

to issue patent for not to exceed an equal value

of surveyed grazing district land or of unre-

served surveyed public land in the same State

or within a distance of not more than fifty

miles within the adjoining State nearest the

base lands.

IV. Other federal statutes that include authority to make

land exchanges are:

16 U.S.C. 21¢

45a-2

79c and 79e

81k, 811, and 81m

192b-1 and 192b-6

206

221¢c

241b and 241f

243

251b

27l1a

282

283

343c¢-343¢-4

346 and 346a-3

361f

392

398d

402

403-2 and 403g-1

6la

16 U.S.C. 407f

407m-7

4100 and 410q

410y-1(b)

430g-1

441i, 4411, and 441n

444 and 444a

450d-1 and 450bb-4 (b)

483

674b

678

689d

696

715d

718d (c)

1134 (a)

1246 (d) -1246 (f)

1277 (d)

25 U.S.C. 468e

464-465

PI SES 2S 8G HO eS

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.