Hall v. Hickel

Decision Date15 October 1969
Docket NumberR-2012.,Civ. No. R-2115
Citation305 F. Supp. 723
PartiesDessie M. HALL, and the First National Bank of Nevada, Executors of the Estate of S. J. Hall, Deceased, Plaintiffs, v. Walter J. HICKEL, Secretary of the Interior; Boyd Rasmussen; Robert E. Vaughan; Robert O. Buffington; Nolan F. Keil; and Rolla E. Chandler, Defendants. Paul B. BRONKEN, Plaintiff, v. Walter J. HICKEL, Secretary of the Interior; Boyd Rasmussen; Robert E. Vaughan; Robert O. Buffington; Nolan F. Keil; and Rolla E. Chandler, Defendants.
CourtU.S. District Court — District of Nevada

Bradley & Drendel, Reno, Nev., and Black, Kendall, Tremaine, Boothe & Higgins, Portland, Or., for plaintiffs.

Robert S. Linnell, U. S. Atty., and Julien G. Sourwine, Asst. U. S. Atty., Reno, Nev., for defendants.

ORDER GRANTING SUMMARY JUDGMENT

THOMPSON, District Judge.

These two cases, while presenting some factual differences, have one issue in common. Each plaintiff complains of the refusal of the Secretary of the Interior to classify certain lands selected and designated by plaintiff-applicant as being suitable for disposition in satisfaction of land selection rights known as Valentine Scrip owned by plaintiff. These rights to acquire title to public lands were created by Act of Congress (Act of April 5, 1872, 17 Stat. 649).

In each case, the decision declining to permit entry on the public lands was substantially identical:

"Based upon analyses of sales of similar land located nearby, the estimate of value of the parcel far exceeds the maximum value established by regulation for land to be classified for disposal in satisfaction of Valentine Scrip. The pertinent regulation (43 CFR 2221.07(f) Circular 2210 reads: `Hereafter, no tract of land will be classified as suitable for disposition in satisfaction for claims if the value per acre of the tract exceeds the following * * * (2) For Valentine * * * selection claims $1400.'"

Defendants moved for summary judgment, lodged the administrative record with the Court, and asserted the absence of genuine issues of fact. Since 1934, the classification of public lands for disposition has been the all-important initial step in the processing of an application to obtain a patent to public lands under the non-mineral land laws. The character of the power exercised by the Secretary of the Interior in classifying public lands for disposition thus is a fundamental consideration.

The administrative records in these cases do not amount to much. The duty of land classification imposed on the Secretary of the Interior is performed ex parte, unimpeded and unaided by the crucible of cross-examination and the contradictory evidence expected in adversary contention. Hence, at the outset, the Court is faced with the assertion that review of the administrative action cannot be limited to the administrative record and that such review will be meaningless in the absence of additional evidence, in substance, a trial de novo. During the preliminary proceedings in these cases, in order to give some background of perspective to the arguments of the opposing forces, the Court permitted affidavits from plaintiffs and required responses thereto from officers of the Government, although there has not, as yet, been a ruling upon whether review is limited to the administrative record. From the record before the Court, it appears that if a trial de novo were permitted, the plaintiffs would produce testimony and exhibits in support of the contentions (1) that plaintiffs have been deprived of property without due process of law by administrative diminishment of the value of their scrip selection rights from $5,000 per acre to $1,270 per acre; (2) that Valentine Scrip applications filed before June 30, 1966 are required by law to be processed without regard to the value of the lands selected; (3) that all applicants for lands in enforcement of scrip rights have not been treated equally, i. e., some patents have issued without regard for the value of the land selected; (4) that from June 24, 1964, for a period of two years, all scrip applications were arbitrarily delayed by express direction of the Secretary to the local land offices not to classify or approve any scrip for patent; (5) that the Secretary's offering of public lands classified for scrip describes lands "ostensibly worth $1,270 per acre" which are not worth that much; (6) that the Government's valuation of the lands selected by plaintiffs was arbitrarily and unreasonably high; and (7) that plaintiffs have never been granted a hearing or the opportunity to present evidence or cross-examine opposing witnesses and there has been a total lack of administrative due process.

The broad spectrum of the attack leveled at the Secretary has led this Court to a consideration of the character of the power exercised by the Secretary in making the decisions which, as plaintiffs would have us believe, have so woefully wronged the plaintiffs even to alleged infringements of basic constitutional rights. Obviously, if a de novo trial is granted and plaintiffs' proposed issues are litigated, the Court will not be "reviewing" final action of an administrative agency. On the contrary, the Court will be considering and determining for the first time the issues of fact which plaintiffs wish to litigate with the United States.

In the opinion of this Court, any jurisdiction it has of the controversy rests upon the provisions of the Administrative Procedure Act of 1946 (5 U.S.C. § 701 et seq., formerly 5 U.S.C. § 1009 et seq.). Thereunder a person suffering legal wrong because of agency action is entitled to judicial review thereof (5 U.S.C. § 702) in any applicable form of action in a court of competent jurisdiction (5 U.S.C. § 703) and to have the agency action set aside upon the grounds specified in section 706. An express initial exception to the jurisdiction of the Courts to review any agency action is found in section 701, as follows: "This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 701; 4 Davis "Administrative Law Treatise", § 28.08. In the instant cases, plaintiffs, attacking the refusal of the Secretary of the Interior to classify the specific lands selected by them as available for satisfaction of Valentine Scrip, are complaining of agency action which is committed to agency discretion by law and is unreviewable in the courts.

As early as 1879, Congress vested authority in an executive agency to classify public lands with respect to their mineral character (43 U.S.C. § 31(a) 20 Stat. 394), and in 1910, with the enactment of the "Picket Act" (43 U.S.C. § 141, 36 Stat. 847), codified a previously exercised and recognized presidential power to withdraw public lands from entry and disposition under the public land laws for other "public purposes" and expressly articulated "classification of lands" as an appropriate purpose. The major impact of the concept of classification of lands by the Executive Department of the Government did not occur, however, until the passage in 1934 of the Taylor Grazing Act (43 U.S.C. § 315 et seq., 48 Stat. 1272) as amended in 1936 (49 Stat. 1976), and the first general order of withdrawal (E.O. 6910, Nov. 26, 1934; 11 CFR 1938 Ed., p. 869).1 Section 7 of the Act (43 U.S.C. § 315f) provides:

"The Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964), or within a grazing district, 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 chapter, or proper for acquisition in satisfaction of any outstanding lien, exchange or script 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, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: Provided, That locations and entries under the mining laws including sections 181-184, 185-188, 189-192, 193, 194, 201, 202-209, 211-214, 223, 224-226, 226-2, 227-229a, 241, 251, and 261-263 of Title 30, may be made upon such withdrawn and reserved areas without regard to classifications and without restrictions or limitations by any provision of this chapter. Where such lands are located within grazing districts reasonable notice shall be given by the Secretary of the Interior to any grazing permittee of such lands. The applicant, after his entry, selection, or location is allowed, shall be entitled to the possession and use of such lands: Provided, That upon the application of any applicant qualified to make entry, selection, or location, under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided. June 28, 1939, c. 865, § 7, 48 Stat. 1272; June 26, 1936, c. 842, Title I, § 2, 49 Stat. 1976." The italicized portions are deemed to have special significance for this case.

It is noted that section 7, supra, authorized classification of lands for acquisition in satisfaction of outstanding "script rights", such as the Valentine Scrip here involved. Congress has had more recent occasion to consider these rights which have been floating around...

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6 cases
  • Sierra Club v. Hardin
    • United States
    • U.S. District Court — District of Alaska
    • 21 Mayo 1971
    ...a permissive statute. The Secretary's decision was accordingly not reviewable on any record. See note 26 supra. See also Hall v. Hickel, 305 F. Supp. 723 (D.Nev.1969); Daniels v. United States, 247 F.Supp. 193 (W.D. 33 Compare Ainsworth v. Finch, 437 F.2d 446 (9th Cir. 1971): "If, based upo......
  • State of Utah, By and Through Division of State Lands v. Kleppe
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 6 Diciembre 1978
    ...U.S. 496, 10 S.Ct. 341, 33 L.Ed. 687 (1890), involving selection of indemnity lands by a railroad land-grant company; and Hall v. Hickel, 305 F.Supp. 723 (D.C.Nev.1969), rev. and remanded on other grounds, 473 F.2d 790 (9th Cir. 1973), Cert. denied, Boothe v. Morton, 414 U.S. 828, 94 S.Ct. ......
  • Lewis v. Hickel
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 1 Junio 1970
    ...to agency discretion" and therefore unreviewable. Administrative Procedure Act § 10, 5 U.S.C. § 1009 (1964). See also Hall v. Hickel, 305 F.Supp. 723 (D.Nev.1969). 1 "When public interests will be benefited thereby the Secretary is authorized to accept on behalf of the United States title t......
  • Bronken v. Morton, 25282-25284.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 29 Marzo 1973
    ...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 "We recognize the intrinsic difficulty in determining whether a discretionary action of an agency is reviewable. Almost......
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