Bronken v. Morton, 25282-25284.

• Decision Date: 29 March 1973
• Docket Number: No. 25282-25284.,25282-25284.
• Citation: 473 F.2d 790
• Parties: Paul B. BRONKEN, Plaintiff-Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant-Appellee. Dessie M. HALL and First National Bank of Nevada, Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant-Appellant. Ferris F. BOOTHE, Plaintiff-Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

473 F.2d 790 (1973)

Paul B. BRONKEN, Plaintiff-Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant-Appellee.

Dessie M. HALL and First National Bank of Nevada, Plaintiffs-Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, Defendant-Appellant.

Ferris F. BOOTHE, Plaintiff-Appellant, v. Rogers C. B. MORTON, Secretary of the Interior, et al., Defendants-Appellees.

Nos. 25282-25284.

United States Court of Appeals, Ninth Circuit.

January 3, 1973.

Rehearing Denied March 29, 1973.

COPYRIGHT MATERIAL OMITTED

Ferris F. Boothe (argued), of Black, Kendall, Tremaine, Boothe & Higgins, Portland, Ore., Bradley & Drendel, Reno, Nev., for plaintiffs-appellants.

Jacques B. Gelin, Atty. (argued), Raymond N. Zagone, Atty., Shiro Kashiwa, Asst. Atty. Gen., Washington, D. C., Bart M. Schouweiller, U. S. Atty., Reno, Nev., for defendants-appellees.

Before KOELSCH and CHOY, Circuit Judges, and POWELL,^* District Judge.

KOELSCH, Circuit Judge:

These three cases are here on the plaintiffs' appeals from summary judgments dismissing their actions to review administrative decisions of the Secretary of the Interior refusing to issue patents to public lands pursuant to applications filed by plaintiffs as holders of land selection rights.¹

From time to time, especially during the Nineteenth Century, Congress has seen fit to bestow upon persons performing services for the government, or upon other persons deemed worthy, rights to receive lands from the public domain. To that end, provisions have been made for the issuance of "scrip" or other evidence of such rights, which would entitle the holders to land patents upon presentation of the rights to the Secretary of the Interior or his designates.² In the early days of scrip, the land selection process was quite simple. A scrip holder merely presented his rights and designated any unreserved lands he wished to acquire. However, a series of executive orders withdrew from selection or reserved virtually all public lands.³ And the Taylor Grazing Act of 1934 was enacted. Under Section 7 of that Act (43 U.S.C. § 315f), the Secretary of the Interior was authorized, in his discretion, to "examine and classify any public lands withdrawn or reserved by executive orders . . . which are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this Act, or proper for acquisition in satisfaction of any outstanding lieu (sic), exchange or script (sic) rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public land laws * * *."

After the Taylor Grazing Act, scrip holders were required, before they could redeem their rights, to apply to the Secretary to have the lands they wished to enter "classified" for scrip redemption purposes. Thus, the Secretary, by exercising his classification authority, could prevent the transfer to scrip holders or other claimants of lands which he deemed should be retained in federal ownership or used for some other public purpose, thereby effectuating the "national policy of conservation of the rapidly diminishing public domain and its natural resources." See Carl v. Udall, 114 U.S.App. D.C. 33, 309 F.2d 653, 657-658 (1962).

However, neither executive withdrawal nor the Taylor Grazing Act directly affected land selection rights, except to the extent the Secretary's classification authority limited their exercise. Most of these rights were of unlimited duration and, apparently, no accurate record had ever been maintained as to the amount of scrip which had been redeemed or which remained outstanding as inchoate claims on the public domain. To resolve this problem, Congress passed the Act of August 5, 1955 (69 Stat. 534), which provided in substance that all holders of scrip and similar selection rights were obliged to record their claims with the Department of the Interior within two years, and that claims not so recorded would not thereafter be honored. Then, on August 31, 1964, Congress placed a time limitation upon the validity of all the scrip claims recorded under the 1955 Act. By the 1964 Act (78 Stat. 751), Congress required all valid claims to be presented, either for land or for money, by January 1, 1970, or January 1, 1975, depending upon the type of claim; failure to present the claims in one of the methods provided by the Act would render the claims "null and void."

In addition, the 1964 Act, in terms, distinguished between scrip applications filed before July 1, 1966, and those filed thereafter. Thus, with respect to those applications filed before July 1, 1966, Section 2 of the Act permitted the applicant to designate lands of his own selection, and directed that the Secretary's classification decision was to be made "under existing law."⁴ However, with respect to applications made after July 1, 1966, the terms of Section 3 provided, in effect, that the applicant no longer enjoyed an option to select such lands as he desired, but was limited to making a selection from a reservoir of public lands which the Secretary was to classify and set aside for conveyance and exchange for these applications.⁵ To protect the rights of these latter applicants, Congress provided that the public lands to be placed in this reservoir, or pool, for selection, have a value of not less than the average value of lands conveyed by patent for each type of scrip claim since the passage of the 1955 Act.

In August of 1966, the Secretary promulgated a regulation 43 C.F.R. § 2221.07 (1967), under which he established guidelines to implement the land classification provisions of the 1964 Act. The regulation provided that, when lands are classified to form the selection pool pursuant to Section 3 of the 1964 Act, only those lands having certain values will be available for each type of scrip claim. The minimum values were set, in accordance with the provisions of the Act, at the average value of lands conveyed for each type of claim since August 1955. 43 C.F.R. § 2221.07(e). The regulation also provided, however, that "no tract of land will be classified as suitable for disposition in satisfaction for claims" if the value per acre of the lands was more than ten percent greater than these minimum value figures. 43 C.F.R. § 2221.07(f) (1967). Thus, the Secretary not only set a floor but, in addition, fixed a ceiling on the value of lands eligible for selection.

These cases involve several aspects of the Secretary's powers in handling applications for public lands under the 1964 Act. The Bronken and Hall appeals bring into question the Secretary's power to apply the value limitation of 43 C.F.R. § 2221.07(f) to lands applied for prior to July 1, 1966. Boothe's appeal questions the authority of the Secretary to impose land use criteria to pre-1966 applications, and the validity of his regulation establishing maximum values for lands to be classified for conveyance pursuant to Section 3 of the 1964 Act.

I. THE BRONKEN-HALL APPEALS.

Bronken and Hall, as holders of Valentine scrip, filed application for public lands located near Las Vegas, Nevada, in April and June of 1964, and in February of 1965. Since the applications were filed prior to July 1, 1966, the Secretary was obliged, by Section 2 of the 1964 Act, to treat the applications under "existing law." The Secretary took no action on the applications until early 1967, at which time he rejected the applications for the following reason:

"Based upon analysis of sales of similar land located nearby, the estimate of value of the parcels far exceeds the maximum value established by regulation 43 C.F.R. 2221.07(f) for land to be classified for disposal in satisfaction of Valentine Scrip * * *."

In the District Court, Bronken and Hall asserted that the Secretary's application of the regulation was contrary to the provisions of Section 2 of the 1964 Act. The court, however, did not reach this question, being of the opinion that the Secretary had acted within his discretion under the public land laws and that, therefore, judicial review was precluded by Section 10 of the Administrative Procedure Act. 5 U.S.C. § 701. Hall v. Hickel, 305 F.Supp. 723 (D.Nev.1969). We reverse.

"We recognize the intrinsic difficulty in determining whether a discretionary action of an agency is reviewable. Almost every agency action involves some degree of discretion of judgment. Yet it cannot be said that, for this reason, every agency action is unreviewable citation omitted. The analytical problem is that of determining when the agency action is `committed to agency discretion' within the meaning of section 10 of the Administrative Procedure Act, and when it merely `involves' discretion which is nevertheless reviewable." Ferry v. Udall, 336 F.2d 706, 711 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286. While it is true, as the District Court observed, that the Secretary's discretion in classifying public lands is quite broad, it is equally true that this discretion is not absolute. His decisions are beyond judicial scrutiny only when he possesses discretion, and he acts within the limits Congress has placed on this discretion.

In our view, Section 2 of the 1964 Act imposed a crucial limitation upon the Secretary's discretion in handling land scrip applications. That section provides that, upon an application filed prior to July 1, 1966, the Secretary "shall thereafter convey" the lands selected by the scrip applicant, so long as the land may be classified for such conveyance "under existing law." The clear meaning of this provision is that the Secretary was required to apply only those criteria to a Section 2 application which he historically applied prior to the passage of the 1964 Act. We are clear that monetary value of the selected lands was not one of...