Honchok v. Hardin

• Decision Date: 14 May 1971
• Docket Number: Civ. No. 70-942.
• Citation: 326 F. Supp. 988
• Parties: G. Peter HONCHOK et al. v. Clifford M. HARDIN, Secretary of Agriculture of the United States, a Maryland resident; American Smelting & Refining Company, a Delaware corporation.
• Court: U.S. District Court — District of Maryland

326 F. Supp. 988

G. Peter HONCHOK et al. v. Clifford M. HARDIN, Secretary of Agriculture of the United States, a Maryland resident; American Smelting & Refining Company, a Delaware corporation.

Civ. No. 70-942.

United States District Court, D. Maryland.

May 14, 1971.

Leonard J. Kerpelman, Baltimore, Md., for plaintiffs.

George Beall, U. S. Atty., and J. Frederick Motz, Asst. U. S. Atty., Baltimore, Md., and Frederick L. Miller, Jr., Atty., Dept. of Justice, for Secretary of Agriculture.

Lewis A. Noonberg and Piper & Marbury, Baltimore, Md., and Daniel M. Gribbon, Richard B. Herzog and Covington & Burling, Washington, D. C., for American Smelting & Refining Co.

THOMSEN, District Judge.

This is an action brought against the Secretary of Agriculture and American Smelting and Refining Company seeking to protect the Challis National Forest in the State of Idaho.

Plaintiffs are a citizen of West Virginia and a citizen of Maryland; the latter sues individually and as President of the North American Habitat Preservation Society, a Pennsylvania corporation.¹ They sue on their own behalf and on behalf of others similarly situated.

Plaintiffs seek (1) a declaratory judgment that the General Mining Law of 1872 (Act of May 10, 1872, c. 152, 17 Stat. 91, 30 U.S.C.A. § 21 et seq.) is unconstitutional; (2) an injunction restraining the Secretary of Agriculture, one of the defendants, from implementing any mining or other claim validation provisions of said law and, particularly, from permitting the other defendant, American Smelting and Refining Company, or anyone else, from "trespassing" upon the Challis National Forest, in the State of Idaho, for the purpose of conducting mining operations or explorations; and (3) a mandatory injunction directing the Secretary "to exercise his ministerial duty which exists, of preventing destructive trespasses upon any national forest, and, more particularly, upon the Challis National Forest, and to prevent the entry of persons whose intention is to mine or prospect thereon". Plaintiffs allege that the corporate defendant is preparing to mine molybdenum in the Challis National Forest,² and has applied to the Secretary for a "road permit" which he intends to grant.

Jurisdiction is claimed under 28 U.S.C. §§ 1331(a), 1332(a) and 1361, venue under 28 U.S.C. § 1391(a), (b), (c) and (e). A three-judge court is requested. 28 U.S.C. § 2282.

The Secretary of Agriculture is said to reside in Maryland. The corporate defendant, a Delaware corporation with its principal office in New York, regularly carries on business in Maryland.

The Secretary has moved to dismiss the complaint for lack of jurisdiction and venue, for lack of standing, and on the merits. The corporate defendant does not question jurisdiction or venue, but has moved to dismiss for lack of standing and lack of a substantial constitutional question.

I

A single judge to whom an application for an injunction is presented must determine whether a substantial constitutional question is raised before notifying the Chief Judge of the Circuit that a statutory three-judge court should be constituted. Jacobs v. Tawes, 250 F. 2d 611, 614-615 (4 Cir. 1957); Maryland Citizens for a Representative General Assembly v. Governor of Maryland, 429 F. 2d 606, 611 (4 Cir. 1970); Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933); Goldstein v. Cox, 396 U.S 471, 478, 90 S.Ct. 671, 24 L.Ed.2d 663 (1970); Britton v. Bullen, 275 F.Supp. 756, 760-761 (D.Md.1967), mandamus denied, sub. nom. Britton v. Thomsen, 390 U.S. 979, 88 S.Ct. 1110, 19 L.Ed.2d 1287 (1968). In the Maryland Citizens case, the Fourth Circuit said:

"* * * Insubstantiality in the claim may appear because of absence of federal jurisdiction, lack of substantive merit in the constitutional claim, or because injunctive relief is otherwise unavailable. Such insubstantiality may be evident from the frivolous nature of the claim or from previous decisions of the Supreme Court which require an adverse answer. When it thus appears that there is no substantial question for a three-judge court to answer, dismissal of the claim for injunctive relief by the single district judge is consistent with the purpose of the three-judge statutes, and it avoids the waste and delay inherent in a cumbersome procedure." 429 F.2d at 611.

II

Although the Secretary of Agriculture may have a residence in Maryland, he is not being sued individually, but in his official capacity as a federal official. His official residence is in the District of Columbia; he is not a citizen of Maryland within the meaning of 28 U.S.C. §§ 1332(a) or 1391(a) and (b). Butterworth v. Hill, 114 U.S. 128, 132, 5 S.Ct. 796, 29 L.Ed. 119 (1885); Stroud v. Benson, 254 F.2d 448, 451-452 (4 Cir. 1958); Berlinsky v. Woods, 178 F.2d 265 (4 Cir. 1949), cert. den., 339 U.S. 949, 70 S.Ct. 805, 94 L.Ed. 1363 (1950); Walters v. Payne, 292 F. 124, 126 (3 Cir. 1923). Section 1391(c) does not apply because "each defendant" is not an officer or employee of the United States.

The motion to dismiss filed on behalf of the Secretary must, therefore, be granted and the case dismissed as to him.³

III

With the Secretary out of the case, we have as plaintiffs a West Virginia citizen, a Maryland citizen, and a Pennsylvania corporation with its principal office in Maryland, and as the sole remaining defendant a Delaware corporation with its principal office in New York. Diversity jurisdiction, therefore, exists. The complaint also raises a federal question. There is now no problem as to venue, because the corporate defendant carries on business in Maryland, and has not challenged venue. 28 U.S.C. § 1391(c).

The United States, through the United States Attorney, has agreed that it received adequate notice of the hearing held on April 22, 1971.

IV

The issue of standing leads into a rapidly developing field. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Ass'n of Data Processing Services v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4 Cir. 1971), and cases and law review articles cited therein, particularly Sierra Club v. Hickel, 433 F.2d 24 (9 Cir. 1970), cert. granted, 401 U.S. 907, 91 S.Ct. 870, 28 L.Ed.2d 805 (1971). The Federal Government has been encouraging the citizens of all the States to use and enjoy the National Parks, National Forests and National Seashores. This Court is loath to dismiss such a case as this for lack of standing until the Supreme Court decides Sierra Club v. Hickle or the Fourth Circuit issues a controlling decision.

V

The complaint must, however, be dismissed on the merits because the constitutional claim is insubstantial. Plaintiffs do not specify what provision of the Constitution is being violated. Their complaint alleges merely that: "Challis National Forest is public land owned by all the people of the United States, in common, and it is held in trust for them, along with other public lands, by the United States for public beneficial uses only, and for no uses which would not have been allowed to the sovereign of lands which he held jus publicum according to the common law of England, as that law was understood in 1781; by virtue of which fact it is unconstitutional today for the Defendant Hardin to permit the acts complained of * * *"; and that: "It is unconstitutional for the Defendant Hardin to dispose of said lands, generally, or to permit the uses complained of, as the lands are owned by the Plaintiffs, or by the people, or by the United States, and the lands are not owned by any of the Defendants".

Plaintiffs' briefs are no more enlightening. Indeed, in the first case they cite, United States v. San Francisco, 310 U.S. 16, 60 S.Ct. 749, 84 L.Ed. 1050 (1940), the controlling principle is stated flatly: "And it is not for the courts to say how that trust shall be administered. That is for Congress to determine". 310 U.S. at 29-30, 60 S.Ct. at 756. This ruling, reiterated in later cases, also answers plaintiffs' concluding point, which reads in its entirety: "And what about the Ninth Amendment? Has not the power to give away, or dispose of, lands of this nature been reserved in the people, so that Congress does not have it?"

The disposition of minerals in lands owned by the United States is by express constitutional grant the responsibility of Congress. Art. 4, § 3, cl. 2 of the Constitution. In Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481, 98 L.Ed. 689 (1954), the Court said:

"* * * The power of Congress to dispose of any kind of property belonging to the United States `is vested in Congress without limitation.' United States v. Midwest Oil Company, 236 U.S. 459, 474 35 S.Ct. 309, 59 L.Ed. 673: `For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress "may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale." Camfield v. United States, 167 U.S. 518 524 17 S.Ct. 864, 42 L.Ed. 260; Light v. United States, 220 U.S. 523 536 31 S.Ct. 485, 55 L.Ed. 570'; United States v. San Francisco, 310 U.S. 16, 29-30 60 S.Ct. 749, 84 L.Ed. 1050; `Article 4, § 3, Cl. 2 of the Constitution provides that "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory and other Property belonging to the United States." The power over the public land thus entrusted to Congress is without limitations. "And it is not for the courts to say how that trust shall be administered. That is for Congress to determine."' United States v. California, 332 U.S. 19, 27 67 S.Ct. 1658, 91 L.Ed. 1889 * *." 347 U.S. at 273,

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