Hinton v. Udall

• Decision Date: 27 June 1966
• Docket Number: No. 19671.,19671.
• Citation: 364 F.2d 676
• Parties: S. Jack HINTON et al., Appellants, v. Stewart L. UDALL, Individually and as Secretary of the Interior, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

364 F.2d 676 (1966)

S. Jack HINTON et al., Appellants, v. Stewart L. UDALL, Individually and as Secretary of the Interior, et al., Appellees.

No. 19671.

United States Court of Appeals District of Columbia Circuit.

Argued February 17, 1966.

Decided June 27, 1966.

Petition for Rehearing Denied August 15, 1966.

Certiorari Denied October 10, 1966.

Mr. Rex E. Lee, Phoenix, Ariz., with whom Messrs. Ozell M. Trask, Phoenix, Ariz., and William E. Rollow, Washington, D. C., were on the brief, for appellants Hinton et al.

Mr. Dale R. Shumway, Phoenix, Ariz., of the bar of the Supreme Court of Arizona, pro hac vice, by special leave of court, with whom Mr. Darrell F. Smith, Mesa, Ariz., was on the brief, for appellant State of Arizona.

Mr. Raymond N. Zagone, Attorney, Department of Justice, with whom Messrs. Roger P. Marquis and Floyd L. France, Attorneys, Department of Justice, were on the brief, for appellees Udall et al.

Mr. Arthur Lazarus, Jr., Washington, D. C., for appellee, San Carlos Apache Tribe of Indians.

Before DANAHER, McGOWAN and LEVENTHAL, Circuit Judges.

Certiorari Denied October 10, 1966. See 87 S.Ct. 159.

LEVENTHAL, Circuit Judge.

In this action, appellants sought to enjoin the Secretary of the Interior from restoring surface or subsurface rights in certain lands in Arizona to the San Carlos Apache Tribe of Indians (hereafter "Indians" or "Tribe"), and further sought a declaratory judgment that the Secretary's restoration of subsurface rights to the Tribe, subject to existing rights, is illegal.

The lands involved were part of the San Carlos Reservation, which was created by executive order in 1872. By an 1896 agreement between the Indians of the reservation and the Government, the Indians ceded an area of approximately 232,000 acres, known as the "Mineral Strip," to the United States; in return the United States agreed to place in the Treasury, for the benefit of the Indians, "the net proceeds accruing from the disposal of such coal and mineral lands." In the statute approving the agreement, Congress expressly provided that "the lands so surrendered shall be open to occupation, location, and purchase, under the provisions of the mineral-land laws only."¹

On March 30, 1931, the Department of the Interior, in response to the Tribe's desire that the lands be returned to it, and in view of the insignificant financial returns that had accrued to the Indians by virtue of the 1896 arrangement, withdrew the Mineral Strip lands from all forms of entry. On September 19, 1934, Secretary Ickes issued an order which listed the Mineral Strip lands as among those to be "temporarily withdrawn from disposal of any kind, subject to any and all existing valid rights,"² pending decision as to whether they would be restored to tribal ownership under the provisions of the Indian Reorganization Act Wheeler-Howard Act),³ passed June 18, 1934. In 1934, as today, the Mineral Strip lands were occupied by non-Indian ranchers, such as the individual appellants in this case. On February 14, 1936, part of the Mineral Strip lands were incorporated within a grazing district established by the United States pursuant to the provisions of the Taylor Grazing Act, passed June 28, 1934.⁴ Some of the appellants hold grazing permits on Mineral Strip lands within that district; others hold Taylor Act grazing leases on Mineral Strip lands outside the district; and still others claim title to Mineral Strip lands under patents from the United States. The State of Arizona, also an appellant, has claims to certain of the lands under various grants made to it by the United States.⁵

In 1958 the Tribal Council of the San Carlos Tribe adopted Resolution 58-7, requesting the Secretary to restore both surface and subsurface rights in Mineral Strip lands to the Tribe. On November 28, 1962, the Solicitor of the Interior Department held that undisposed Mineral Strip lands were "surplus lands" within the meaning of Section 3 of the Indian Reorganization Act of 1934, and that the Secretary therefore had authority to restore them to the Tribe.⁶ On December 10, 1962, Secretary Udall authorized Under Secretary Carr to determine whether such a restoration would be in the public interest. On January 10, 1963, appellants filed this action to enjoin and declare unlawful any such restoration.

On April 2, 1963, before any action had been decided upon by the Interior Department, the Tribal Council adopted Resolution 63-17, which requested return to the Tribe of sub-surface rights in the Mineral Strip. Resolution 58-7, with respect to surface rights, was withdrawn, to be "held in abeyance by the Secretary until reactivated by the San Carlos Council." On June 17, 1963, Under Secretary Carr issued Order No. 2874,⁷ restoring to the San Carlos Tribe all "mineral, oil and gas resources" in the Mineral Strip lands, "subject to any valid existing rights" and excluding any patented lands. Appellants then amended their complaint to attack the validity of Order No. 2874, but still sought to enjoin restoration to the Tribe of surface as well as sub-surface rights in the Mineral Strip. The State of Arizona was permitted to intervene as a party plaintiff. The Tribe intervened as a party defendant.

After a trial, the District Court held, 243 F.Supp. 672 (1965), that neither the individual appellants nor the State of Arizona had standing to challenge the Secretary's actions, and that there was no case or controversy presented on which to base jurisdiction.⁸ Assuming jurisdiction arguendo, the trial judge ruled the Secretary had authority under Section 3 of the Indian Reorganization Act to restore the Mineral Strip subsurface rights to the Tribe. We affirm the judgment of the District Court on the ground that appellants do not present a controversy with the Secretary that is ripe for judicial intervention. We express no view as to the correctness of the District Judge's determination on the merits.

Order No. 2874, restoring subsurface rights to the Tribe, has not been shown to aggrieve appellants. The order by its terms is made "subject to any valid existing rights" in the Mineral Strip lands. Appellants make no showing that they have sub-surface rights which are impinged upon or affected by that order. The interests of those appellants who hold Taylor Act grazing permits or leases were expressly made subordinate to mineral interests by Section 6 of the Taylor Act, 43 U.S.C. § 315e. None of the other appellants has brought forth evidence that the Secretary intends to apply the order in such a way as to override the rights they claim. Although there is a vague premonition that restoration of sub-surface rights could affect appellants' surface use, their contention in this regard is shadowy; it lacks the kind of specific showing of conflict between these uses necessary to trigger judicial intervention.⁹

In essence, the claim of the individual appellants, engaged as they are in ranching, is based not on injury from Order No. 2874 as it stands, but from the possibility that the order may be amended or enlarged to restore surface rights.

That the Tribe initially sought restoration of surface as well as subsurface rights in the lands, that the Department took some steps in the processing of that request, and that the request, now withdrawn, may be reactivated at some time in the future, does not mean that the interests of appellants in surface rights to the lands are affected so as to give them standing to have such possible future action declared invalid.

Appellants say it is "likely" that the Tribe's request for restoration of surface rights will soon be reactivated. That may be, but we have no way of predicting how the Secretary would act on such a request. True, the Solicitor of the Interior Department is of the opinion that the Secretary has the legal authority to restore the surface rights, and the appellants controvert that legal view. But a difference of opinion on legal issues is one for a moot court, and not our court, unless and until someone takes or threatens to take the action claimed to be illegal. There is no showing that restoration of surface rights will inexorably or even probably follow the action the Secretary has already taken. He may conclude that the public interest is served by stopping with restoration of sub-surface rights, and that the issue of surface rights presents different considerations. The Indian Reorganization Act does not require the Secretary to restore surface rights in the future simply because he has restored sub-surface rights. Section 3 of that Act authorizes restoration of surplus lands, but does not require it.

In our view this case calls for application of the doctrine rejecting as premature challenges to statutes and actions of officials or agencies by "litigants who have not been harmed or threatened with immediate harm" by such actions.¹⁰ In applying this rule, as generally in applying the inter-related doctrines of ripeness and justiciability, we are called upon not for exercise in logic, or abstract application of all-embracing principles, but rather, in the words of Justice Frankfurter, for concrete evaluation of "the resultant of many subtle pressures, including the appropriateness of the issues for decision * * * and the actual hardship to the litigants of denying them the relief sought." Poe v. Ullman, 367 U.S. 497, 508-509, 81 S.Ct. 1752, 1759, 6 L.Ed.2d 989 (1961).¹¹

The doctrine of ripeness often precludes immediate judicial consideration even in cases when judicial consideration seems well nigh inevitable; in such cases the doctrine operates to provide review later rather than earlier, and to assure review in a more concrete, focused context, on a more complete record.¹² Even more formidable are the barriers the court erects in situations like the case at bar where there is a reasonable possibility that the course of official action may be such, perhaps affected by negotiation with the suitors, that no...