Mountain States Telephone & Tel. Co. v. United States

• Decision Date: 19 June 1974
• Docket Number: No. 369-72.,369-72.
• Citation: 499 F.2d 611,204 Ct. Cl. 521
• Parties: MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY v. The UNITED STATES.
• Court: U.S. Claims Court

204 Ct. Cl. 521, 499 F.2d 611 (1974)

MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY v. The UNITED STATES.

No. 369-72.

United States Court of Claims.

June 19, 1974.

Judith A. Yannello, Washington, D. C., for plaintiff; John B. Tacke, Washington, D. C., attorney of record. Hudson, Creyke, Koehler, Brown & Tacke, Washington, D. C., of counsel.

Thomas L. McKevitt, Washington, D. C., with whom was Asst. Atty. Gen. Wallace H. Johnson, for defendant. Robert A. Zupkus, Washington, D. C., of counsel.

Before COWEN, Chief Judge, DURFEE, Senior Judge, and KASHIWA, Judge.

KASHIWA, Judge.

This is a suit for the return of $3,195, allegedly excessive fees paid annually under protest to the Department of Agriculture.

The action arises from plaintiff's dissatisfaction with the fee charged for a special-use permit issued by the United States Department of Agriculture, Forest Service, on June 17, 1960, authorizing plaintiff to maintain a microwave relay facility at a 125 x 150 square foot site on Mt. Lemmon in the Coronado National Forest, Pima County, Arizona. Plaintiff paid, since January 1, 1964, a $600 annual fee for the privilege of holding this permit. Plaintiff alleges that the fee should have been $300 per annum instead of $600. Plaintiff argues that the regulation (36 C.F.R. 251.3(a)) and its interpretation, authorizing a fee based on the value of the use in light of the investment in the property, constitute an abuse of discretion by the Secretary of Agriculture (hereinafter referred to as "Secretary").

Plaintiff alleges that it has paid the fees in issue herein under protest since January 1, 1964. A final decision against plaintiff in the administrative proceedings relating to its protest was issued by the Secretary on November 7, 1972. Portions of the decision, as relevant herein, read:

The central issue in this appeal is whether the Forest Service method of determining fees for electronic sites utilizing on-site investment as reiterated in Circular U-275 is a proper method of determining such fees for the use of Natonal Forest land under special-use permit. Appellant contends that the fee should be based on fair market value. A review of the record indicates that fair market value as described by the appellant is the value of undeveloped land as has been determined for recreation residence purposes.

The appellant takes the position in this proceeding that the Forest Service interpretation of 36 CFR 251.3(a) equating "value of the use" with value to the user, and the implementation through fees determined against on-site investment, are each unlawful exercises of administrative authority because:

1. A use charge based on other than fair market value standards is contrary to the will of the Congress.

2. Implementation of guide fees provided in Circular U-275 results in arbitrary assessment against Mountain States because its on-site investment is not synonymous with value of the use.

3. The fee imposed may not be sustained because it is patently excessive and unreasonable.

4. Fees based on Mountain States investment on the site are contrary to public policy and the recommendations of the Public Land Law Review Commission.

* * * * * *

The position taken by the appellant is not persuasive in the matters of argument. I therefore sustain the decision of the Chief, Forest Service that microwave site fees are appropriately developed using the on-site investment approach and that the Mt. Lemmon fee was correct for the investment in place.

I decline to grant the relief sought for the following reasons: It is my belief that value of the use is an appropriate basis for charging a fee; that the Regulation as constituted has stood the test of time, it allows the use of the market to establish value for each particular kind of use, and raw land value in the context of appellant\'s pleading does not provide an appropriate rental for microwave purposes. I see no purpose being served in revising 36 CFR 251.3(2).

This action was filed on February 22, 1973. The issue presented herein is the same as that before the Department, and the arguments presented are substantially the same as those presented to the Department.

The case is now before us on cross motions for summary judgment. There are no material facts in dispute. Defendant's cross motion for summary judgment is allowed for reasons hereinafter stated.

It is not disputed that management and control over lands of the United States is in Congress under Article IV, Section 3 of the Constitution. In Sierra Club v. Hickel, 433 F.2d 24, 28 (9th Cir. 1970), aff'd, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), the court said:

Article IV, Section 3 of The United States Constitution commits the management and control of the lands of the United States to Congress. That congressional power is unlimited. The Supreme Court said in Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99, 20 L.Ed. 534 (1872):

"With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations."

See also Alabama v. Texas, 347 U.S. 272, 274, 74 S.Ct. 481, 98 L.Ed. 689 (1954).

Congress may delegate the power to manage federal lands to the Executive. United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911); Light v. United States, 220 U.S. 523, 31 S.Ct. 485, 55 L.Ed. 570 (1911); Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); United States v. Hymans, 463 F.2d 615 (10th Cir. 1972); McMichael v. United States, 355 F.2d 283 (9th Cir. 1965); United States v. Cassiagnol, 420 F.2d 868 (4th Cir. 1970), cert. denied, 397 U. S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654; Sierra Club v. Hickel, supra. The basic statute relating to regulation of the national forests is 16 U.S.C. § 551. It reads as follows:

The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; * * *. Emphasis supplied.

The statute reveals a clear intent of Congress to commit regulation of the national forests to the discretion of the Secretary. A similar statute relating to the regulation of federal property placed in charge and control of the General Services Administration (hereinafter referred to as "GSA") is 40 U.S.C. § 318. In United States v. Cassiagnol, supra, 420 F.2d at 876-877, with relation to the delegation to GSA of the authority to make regulations governing the operation, maintenance, and use of such property under its control, the court held:

* * * It is clear that Congress has constitutional power to "make all needful Rules and Regulations" concerning government property. Under such constitutional authority Congress delegated the authority to make regulations governing the operation, maintenance and use of government property to the GSA Administrator. Such authority necessarily had to be somewhat general in nature due to the vast number and great variety of properties entrusted to the charge and control of GSA, but this authority, contrary to appellants\' contention, was not unlimited. GSA was given physical control and custody of a wide variety of public buildings in and out of the District of Columbia, including courthouses, customhouses, barge offices and office buildings. The function exercises in relation to such property is essentially one of maintaining, operating and protecting buildings and grounds for the uses for which they have been designated. Congress fixes the governmental purpose of a particular piece of property and limits the GSA Administrator\'s power to make "needful rules and regulations" to maintain and protect such property and ensure its use for the authorized purpose. To require Congress specifically to enumerate GSA\'s duties would be to require the impractical if not the impossible. Similar grants of general regulatory and administrative authority are common, e. g., national parks, national military parks and battlefields, national forests, watersheds, etc. It is reasonable and constitutional to delegate to the agency charged with maintenance and protection of government property the right to fix the hours and places where the property may be entered by the public, as well as minimum acceptable conduct thereon, and to provide for the punishment of those violating such regulations. As was stated in United States v. Grimaud, 220 U.S. 506, 521, 31 S.Ct. 480, 484, 55 L.Ed. 563 (1911), supra,

"* * * The authority to make administrative rules is not a delegation of legislative power, nor are such rules raised * * * to a legislative character because the violation thereof is punished as a public offense."

We find 40 U.S.C. § 318 to be a constitutional delegation of administrative authority to the Administrator of GSA to promulgate "needful rules and regulations" pertaining to government property under the charge and control of GSA. Footnotes omitted.

Among the terms which may be set by the Forest Service to accompany use of federal lands is the payment of permit fees. These fees may be fixed in an amount determined by the Forest Service. United States v. Grimaud, supra, 220 U.S. at 521-522, 31 S.Ct. 480; Pankey Land and Cattle Co. v. Hardin, 427 F.2d 43 (10th Cir. 1970). In United States v. Golden Gate Bridge and Highway Dist. of California, 37 F.Supp. 505, 510 (N.D.Cal.1941), aff'd, 125 F.2d 872 (9th Cir. 1942), cert. denied, 316 U.S. 700, 62 S.Ct. 1298, 86 L.Ed. 1769, the court said, "There can be no doubt that when the Secretary has the authority `in his discretion' to grant the...