Duesing v. Udall, 17358

• Decision Date: 30 June 1965
• Docket Number: No. 17358,17403-17409.,17358
• Citation: 350 F.2d 748
• Parties: Bert F. DUESING, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. George Hall DOUGLASS, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Gene B. GRAHAM, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Rodney L. JOHNSTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. H. Willard NAGLEY, Jr., Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. E. E. RASMUSON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Milan RAYKOVICH, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee. Robert B. ATWOOD, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

350 F.2d 748 (1965)

Bert F. DUESING, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

George Hall DOUGLASS, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

Gene B. GRAHAM, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

Rodney L. JOHNSTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

H. Willard NAGLEY, Jr., Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

E. E. RASMUSON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

Milan RAYKOVICH, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

Robert B. ATWOOD, Appellant, v. Stewart L. UDALL, Secretary of the Interior, Appellee.

Nos. 17358, 17403-17409.

United States Court of Appeals District of Columbia Circuit.

Argued May 26, 1965.

Decided June 30, 1965.

Petition for Rehearing Denied September 23, 1965.

Mr. Max Barash, Washington, D. C., for appellant in No. 17358.

Mr. H. St. John Butler, Washington, D. C., for appellants in Nos. 17403-17409.

Mr. Edmund B. Clark, Atty., Dept. of Justice, with whom Asst. Atty. Gen. Ramsey Clark, Messrs. Roger P. Marquis and Herbert Pittle, Attys., Dept. of Justice, were on the brief, for appellee.

Before DANAHER, Circuit Judge, BASTIAN, Senior Circuit Judge, and LEVENTHAL, Circuit Judge.

Petition for Rehearing En Banc Denied September 23, 1965.

LEVENTHAL, Circuit Judge:

These are appeals from orders granting summary judgment to appellee, Secretary of the Interior, and dismissing the complaints of appellants. The lawsuits sought to establish the invalidity of the decision of the Secretary of the Interior closing the southern half of the Kenai National Moose Range in Alaska for oil and gas leasing, in consequence of which appellants' noncompetitive applications were rejected. We affirm.

The Moose Range was created in 1941 by Executive Order No. 8979, 6 F.R. 6471, by which approximately two million acres of the public domain were set aside "as a refuge and breeding ground for moose." Between December 1955 and January 1958, noncompetitive oil gas lease applications relating to acreage in the southern half of the Moose Range were filed by appellants pursuant to section 17 of the Mineral Leasing Act, as amended (30 U.S.C. § 226). Appellants contend that these offers, which were consistent with, and it is claimed "invited" by, the regulations then in effect (Circular 1945, approved December 6, 1955, 20 F.R. 9009), conferred a vested right in appellants which was unlawfully impaired and cancelled by the Secretary's actions in refusing to lease, done pursuant to revision of the regulation (Circular 1990, January 8, 1958, 23 F.R. 227).

The background of the regulations pertaining to leasing of wildlife refuge lands (see 43 C.F.R. 192.9), and a description of their increasingly restrictive quality, are set forth in Udall v. Tallman, 380 U.S. 1, at 5-14, 85 S.Ct. 792, 13 L.Ed. 2d 616 (1965). The 1955 regulation was more restrictive than an initial 1947 regulation, which had simply required that leases be subject to an approved unit plan and required the Secretary's consent prior to drilling. By an inter-agency memorandum dated August 31, 1953, the Interior Department suspended action on all pending oil and gas lease applications for lands within wildlife refuges, pending completion of a study and possible revision of policy and regulations. The 1955 regulation gave increased power to the Fish and Wildlife Service to avoid impairment of usefulness of the lands for wildlife conservation purposes. Certain areas were declared "not available for leasing," other areas were available under restrictions. As to the areas in question the regulation provided: "Oil and gas leases may be issued for other lands administered by the Fish and Wildlife Service" provided they contain specified conditions requiring approval by the Fish and Wildlife Service of the type of prospecting to be conducted, and adoption by the lessee of a unit plan approved by the Service. In 1956 bills were introduced seeking Congressional restriction of oil and gas leasing in wildlife refuges. Instead, an arrangement was worked out, for an experimental period, whereby proposals for lease would be submitted, for approval or disapproval within 60 days, to the House Committee on Merchant Marine and Fisheries. In July 1956, that Committee concluded that administrative proposals for leases for 71,680 acres in the northern half of the Moose Range "would not be detrimental to the wildlife values of the Moose Range" and concurred therein.

The Secretary's 1958 revision of the regulation "represented a near total victory for the conservationists." It was a general prohibition of oil and gas leasing in wildlife refuges. Alaska was an exception and here it was provided that agreements were to be reached by the Bureau of Land Management and the Fish and Wildlife Service, specifying lands not subject to leasing and provisions required in leases on the remaining lands, to be effective upon approval by the Secretary. The Secretary published notice in the Federal Register on August 2, 1958, 23 F.R. 5883, of an agreement he had approved July 24, 1958, which set forth that certain lands in the Moose Range (essentially the southern half comprising about 1,689 square miles) "are hereby closed to oil and gas leasing because such activities would be incompatible with management thereof for wildlife purposes." About 1,525 square miles covering the northern half of the range was left open to leasing.

I

Appellants fail in their contention that they obtained a vested right with their applications since it lay entirely within the discretion of the Secretary whether or not to issue leases on the lands involved

Section 17 of the Mineral Leasing Act of 1920, 41 Stat. 437, 30 U.S.C. § 181, as amended to and including the Act of August 8, 1946, 60 Stat. 950, read insofar as pertinent:

"Sec. 17. All lands subject to disposition under this Act which are known or believed to contain oil or gas deposits may be leased by the Secretary of the Interior. When the lands to be leased are within any known geological structure of a producing oil or gas field, they shall be leased to the highest responsible qualified bidder by competitive bidding under general regulations, * * *. When the lands to be leased are not within any known geological structure of a producing oil or gas field, the person first making application for the lease who is qualified to hold a lease under this Act shall be entitled to a lease of such lands without competitive bidding."

Under section 17 it is permissive or discretionary whether or not the Secretary will issue a lease on lands believed to contain oil or gas deposits. What is mandatory is who is to get the lease if it is decided that a lease will be issued — if there is a known geologic structure, the highest bidder; if not, the applicant first in line.

As we said in Haley v. Seaton, 108 U.S.App.D.C. 257, 262, 281 F.2d 620, 625 (1960), the legislative intent was "to give the Secretary of the Interior discretionary power, rather than a positive mandate to lease." More recently the Supreme Court said in Tallman (380 U.S. at 4, 85 S.Ct. at 795):

"Although the Act directed that if a lease is issued on such a tract not within a known geologic structure of a producing oil and gas field, it must be issued to the first qualified applicant, it left the Secretary discretion to refuse to issue any lease at all on a given tract."

The filing of an application which has not been accepted does not give any right to a lease, or generate a legal interest which reduces or restricts the discretion vested in the Secretary whether or not to issue leases for the lands involved.

II

Without specifying which appellants make which arguments, we address ourselves to a collection of contentions assailing the Secretary's exercise of his discretion. It is contended that the Secretary's authority permits refusal to lease "on a given tract" (see Tallman), but not on a large area of 1,689 square miles. A subsidiary contention is that the Secretary's 1958 action amounted to an indirect "withdrawal" that did not comply with the Pickett Act of June 25, 1910, 36 Stat. 847, 43 U.S.C. § 141 et seq., which requires that withdrawals be reported to Congress, and further did not comply with the regulations providing for notice and public hearings prior to making withdrawals. Circular 1982, August 12, 1957, 22 F.R. 6613, 43 C.F.R. 295.

Assistant Secretary Carver's thoughtful decision in the case of Richard K. Todd et al., 68 I.D. 291, pointed out that the Secretary of Interior had not exercised his withdrawal power. Thus the Secretary had not designated his action as "public land orders" which is required as to withdrawal by Executive Order No. 10355 of May 26, 1952 (17 F.R. 4831), whereby the President expressly delegated to the Secretary the authority to withdraw public lands. Mr. Carver further stated (68 I.D. at 296):

"Stripped of all authority to withdraw lands, the Secretary

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