Delaware Valley Conservation Association v. Resor, 16772.

• Decision Date: 08 March 1968
• Docket Number: No. 16772.,16772.
• Parties: DELAWARE VALLEY CONSERVATION ASSOCIATION and the 604 Additional Individual Plaintiffs, Appellants, v. Stanley R. RESOR, Individually and as Secretary of the Department of the Army of the United States of America, Stewart L. Udall, Individually and as Secretary of the Interior of the United States of America, and W. F. Cassidy, Individually and as Chief of Engineers of the Department of the Army of the United States of America, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

392 F.2d 331 (1968)

DELAWARE VALLEY CONSERVATION ASSOCIATION and the 604 Additional Individual Plaintiffs, Appellants, v. Stanley R. RESOR, Individually and as Secretary of the Department of the Army of the United States of America, Stewart L. Udall, Individually and as Secretary of the Interior of the United States of America, and W. F. Cassidy, Individually and as Chief of Engineers of the Department of the Army of the United States of America, Appellees.

No. 16772.

United States Court of Appeals Third Circuit.

Argued January 12, 1968.

Decided March 8, 1968.

Austin J. McGreal, Crumlish & Kania, Philadelphia, Pa. (Robert P. Garbarino, Philadelphia, Pa., Eugene F. Brazil, Philadelphia, Pa., on the brief), for appellants.

Raymond N. Zagone, Appellate Section, Land and Natural Resources Division, Dept. of Justice, Washington, D. C. (J. Edward Williams, Acting Asst. Atty. Gen., Bernard J. Brown, U. S. Atty., Scranton, Pa., Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellees.

Before McLAUGHLIN, FREEDMAN and SEITZ, Circuit Judges.

OPINION OF THE COURT

McLAUGHLIN, Circuit Judge.

This appeal is brought by the Delaware Valley Conservation Association and 604 individuals, plaintiffs below, urging reversal of the District Court's dismissal of their complaint on motion of the defendants, Stanley R. Resor, Stewart L. Udall and W. F. Cassidy, individually and respectively as Secretary of the Army, Secretary of the Interior and Chief of Engineers of the Department of the Army. Jurisdiction of the District Court is asserted under the United States Constitution, Art. III, Sec. 2; 28 U.S. C.A. §§ 1331 and 1332; the "Delaware River Basin Compact", 75 Stat. 688; and several statutes under which it is alleged defendants purported to act.

In their complaint plaintiffs seek to enjoin the named defendants from proceeding with the development of the Tocks Island Reservoir Project and the Delaware Water Gap National Recreation Area. These projects were authorized by Congress as multi-purpose projects at an estimated cost of $192,400,000 for the Reservoir Project, Section 203 of the Flood Control Act of 1962, 76 Stat. 1180, 1182, and $37,412,000 and $18,200,000 for land acquisition and recreation facilities for the national recreation area. Section 8 of the Act of September 1, 1965, 79 Stat. 612, 614. The gravamen of appellants' complaint as indicated in their brief is that "defendants individually, in concert and through their agents and representatives are engaging in a series of unlawful and unconstitutional activities against plaintiffs, including, inter alia, arbitrarily and discriminatorily proceeding with acquisition and condemnation of lands and waters and entering into illegal power contracts for the reservoir project and recreation area without statutory authority and without satisfying the preconditions of the purported enabling act, in violation of applicable law and without funds to pay just compensation." On defendants' motion for dismissal for lack of jurisdiction or in the alternative for summary judgment, the District Court ruled for defendants holding that the suit was one against the United States to which it had not consented and, therefore, the court was without jurisdiction. The complaint was dismissed without leave to amend. Delaware Valley Conservation Association v. Resor, 269 F.Supp. 181 (D. C.M.D.Pa.1967).

Appealing plaintiffs claim the District Court erred by applying the wrong standard with which to judge the sufficiency of their complaint and, further, that the court abused its discretion when it dismissed the complaint without granting leave to amend.

Initially we must determine whether the complaint seeks recovery against the Government and is, therefore, subject to the defense of sovereign immunity. A key decision in resolving this issue is Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), where the Supreme Court recognized the difficulty of classifying various suits and stated:

"The question becomes difficult and the area of controversy is entered when the suit is not one for damages but for specific relief: i. e., the recovery of specific property or monies, ejectment from land, or injunction either directing or restraining the defendant officer\'s actions. In each such case the question is directly posed as to whether, by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign. For the sovereign can act only through agents and, when an agent\'s actions are restrained, the sovereign itself may, through him, be restrained. As indicated, this question does not arise because of any distinction between law and equity. It arises whenever suit is brought against an officer of the sovereign in which the relief sought from him is not compensation for an alleged wrong, but rather, the prevention or discontinuance, in rem, of the wrong. In each such case the compulsion, which the court is asked to impose, may be compulsion against the sovereign, although nominally directed against the individual officer. If it is, then the suit is barred, not because it is a suit against an officer of the Government, but because it is, in substance, a suit against the Government over which the court, in the absence of consent, has no jurisdiction." Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at page 687, 69 S.Ct. at page 1460.

The test established in Larson was reaffirmed in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1961), where the relief sought was the ejectment of a Forest Service Officer of the U. S. Department of Agriculture. See also; Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1962); Jasper v. Sawyer, 92 U.S.App.D.C. 94, 205 F. 2d 700 (1953).

Applying the above to the case before us, we find that plaintiffs seek relief in the form of "an injunction permanently enjoining and restraining the defendants, their agents, servants, employees and attorneys and all persons in active concert and participation with them, and requiring them to cease and desist from: (1) Proceeding, directly or indirectly, with prosecution of the Delaware Water Gap National Recreation Area and Tocks Island Reservoir Project. * * *". If this type of relief were granted, it would prohibit the continuation and completion of the government project here involved. Although nominally directed at the defendant officers, the relief requested here would operate directly against the United States since "the sovereign can act only through agents." Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at page 688, 69 S.Ct. at page 1460. The serious problems that would be occasioned if courts were permitted to grant plaintiffs the relief they seek in their complaint was clearly foreseen by the Supreme Court when it stated:

"For, it is one thing to provide a method by which a citizen may be compensated for a wrong done him by the Government. It is a far different matter to permit a court to exercise its compulsive powers to restrain the Government from acting, or to compel it to act. There are the strongest reasons of public policy for the rule that such relief cannot be had against the sovereign. The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right. As was early recognized, `The interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief * * *\'." Larson v. Domestic & Foreign Commerce Corp., supra, 337 U.S. at page 704, 69 S.Ct. at page 1468.

Appellants claim the United States has given its consent to this suit. They cite various statutes in support of this contention. We have reviewed these statutes and are convinced they do not support appellants' argument. For example, it is claimed that § 15.1 of the Delaware River Basin Compact, 75 Stat. 688, 715, waives immunity. Appellants cite that part of the statute which states: "The United States district courts shall have original jurisdiction of all cases or controversies arising under the Compact, * * *." They fail, however, to note that the very next sentence provides: "Nothing contained in the Compact or elsewhere in this Act shall be construed as a waiver by the United States of its immunity from suit." Appellants' contention must be rejected in light of the specific mandate of the statute which cannot be ignored.

Appellants also claim that Section 317 of the Federal Power Act, 49 Stat. 682, as amended, 16 U.S.C.A. § 825p operates as a waiver of immunity. That section provides, inter alia:

"The District Courts of the United States * * * shall have exclusive jurisdiction of violations of this chapter or the rules, regulations, and orders thereunder, and of all suits in equity and actions at law brought to enforce any

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