Nelson v. Kleppe, Civ. No. 1-74-209.
| Citation | 457 F. Supp. 5 |
| Decision Date | 20 August 1976 |
| Docket Number | Civ. No. 1-74-209. |
| Parties | T. Stanley NELSON, Idaho Wildlife Federation, Golden Eagle Audubon Chapter, B. Robert Butler, Marid P. Delisio, Ruthann Knudsen, Max G. Pavesic, David Rice, and Roderick Sprague, Plaintiffs, v. Thomas S. KLEPPE, in his official capacity of Secretary of the Interior of the United States, Curtis J. Berklund, in his official capacity as Director of the Bureau of Land Management of the Department of the Interior, William L. Matthews, State Director (Idaho) of the Bureau of Land Management, Defendants, Robert M. Henggeler, Intervenor-Defendant. |
| Court | U.S. District Court — District of Idaho |
Herbert W. Rettig, Dunlap, Rettig & Rosenberry, Caldwell, Idaho, W. F. Schroeder, Schroeder, Denning & Hutchens, Vale, Or., for plaintiffs.
Wilbur T. Nelson, U. S. Atty., Paul L. Westberg, Asst. U. S. Atty., Boise, Idaho, for defendants.
William F. Ringert, Anderson, Kaufman, Anderson & Ringert, Boise, Idaho, for intervenor-defendant.
The plaintiffs have brought this action seeking judicial review, pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-706, of a November 8, 1974 decision which classified certain real property as suitable for entry under the Desert Land Act, as amended, 43 U.S.C. § 321, et seq. The decision by its terms is the final action of the Secretary of the Interior. The defendants have filed a summary judgment motion which is presently before the court. The matter has been fully briefed, oral arguments have been heard and the court, being fully advised in the premises, undertakes the following:
FACTS
On December 2, 1966, the intervenor-defendant, Robert M. Henggeler, filed an application under the Desert Land Act to enter 320 acres of land. This application was amended on December 9, 1966, for an entry of 306.15 acres of land. This application was approved on December 11, 1970, by the Idaho Office of the Bureau of Land Management (hereinafter BLM) on issuance of its proposed decision classifying the lands as suitable for orchard development.
On January 7, 1971, plaintiff Nelson filed his initial protest against the proposed classification. On April 13, 1971, Al Steninger, a consultant in range management, submitted an "Amplification of Protest" on behalf of plaintiff Nelson. The grounds for said protest were as follows: The lands have important wildlife values; the lands provide critical open space and recreational values; the underground water supply and watershed would be adversely affected; the lands are not suitable for an orchard; the proposed classification will lead to inequities; the decision was the result of political pressure and the decision should be delayed pending the result of a comprehensive land use program conducted by the BLM.
On July 15, 1971, the Boise manager of the BLM advised Mr. Henggeler and fourteen other desert land applicants that their applications would be held in abeyance pending completion of a comprehensive land use plan for the entire Black Canyon Planning Unit of 55,000 acres.
On July 30, 1973, the Associate Director of the Washington BLM office advised the Idaho Director to complete the review of plaintiff Nelson's protest without awaiting completion of the comprehensive land use plan.
On March 7, 1974, the Idaho Director issued his initial classification decision approving the application for classification of land as suitable for orchard development. Interested parties were then allowed 30 days in which to protest said decision, during which time numerous letters were received, both pro and con.
On August 16, 1974, the matter was submitted to the Secretary of the Interior for the exercise of his supervisory authority. On November 6, 1974, Deputy Assistant Secretary Roland G. Robison affirmed the initial classification decision, such action constituting final agency action. Plaintiff filed his present complaint in this court on December 4, 1974.
The record also reflects that at various stages of the decisional process inquiry was made by Senator Church and Congressmen McClure and Symms regarding the status of Mr. Henggeler's application.
Plaintiff has alleged three statutory provisions to invoke this court's jurisdiction. They are 5 U.S.C. §§ 701-706 (Administrative Procedure Act), 28 U.S.C. § 1361 (Mandamus), and 28 U.S.C. §§ 2201-2202 (Declaratory Judgment Act). For the reasons hereinafter stated, this court finds that it is without jurisdiction to review the Secretary's classification of the land here in question.
The Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, itself is not a jurisdictional statute. The Act merely establishes a new remedy available in cases in which jurisdiction otherwise exists. Workman v. Mitchell, 502 F.2d 1201 (9th Cir. 1974); Ybarra v. City of Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974); Sellers v. Regents of University of Cal., 432 F.2d 493 (9th Cir. 1970), cert. den., 401 U.S. 981, 91 S.Ct. 1194, 28 L.Ed.2d 333; Work v. United States, 267 U.S. 175, 177, 45 S.Ct. 252, 69 L.Ed. 561 (1925).
28 U.S.C. § 1361 states:
"The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."
The purpose of this section is to allow federal courts jurisdiction to issue writs when it appears that the claim made is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt. Prairie Band of Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966); Jarrett v. Resor, 426 F.2d 213 (9th Cir. 1970); United States v. Walker, 409 F.2d 477 (9th Cir. 1969). Mandamus does not lie to review the discretionary acts of officials. Armstrong v. United States, 233 F.Supp. 188 (D.C.Cal.1964), aff'd, 354 F.2d 648, cert. den., 384 U.S. 946, 86 S.Ct. 1472, 16 L.Ed.2d 543; Southport Land & Commercial Co. v. Udall, 244 F.Supp. 172 (D.C.Cal.1964). However, some circuits have allowed mandamus to lie where an abuse of discretion is involved. Chaudoin v. Atkinson, 494 F.2d 1323 (3rd Cir. 1974); Miller v. Ackerman, 488 F.2d 920 (8th Cir. 1973).
The complained of action in this case is neither clear and certain nor so plainly prescribed as to be free from doubt. The pertinent statute, 43 U.S.C. § 315f provides in pertinent part:
"The Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any 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, . . ." (emphasis added)
Once a qualified application is made, the Secretary must classify, the duty is clear and certain; however, the particular classification category to be given to the lands still is within the Secretary's discretion, subject to the general regulations in 43 C.F.R. § 2410.1. It is the classification category given to the lands in question that is the heart of plaintiffs' complaint. The Secretary has performed his clear and certain ministerial duty of classifying and mandamus will not lie to direct the Secretary to make a particular classification.
This brings us to the jurisdictional allegations under the Administrative Procedures Act, 5 U.S.C. §§ 701-706. There are two relevant sections of that Act which provide, in pertinent part:
The conflict in the statutes is obvious; a court may not review action committed to agency discretion, but the court may review action that abuses that discretion. Where to draw the line has caused considerable debate among the commentators, as well as a split in the courts.1
This case is controlled by two recent Ninth Circuit cases which have noted the conflict and formulated guidelines for its resolution. The first case, Ness Inv. Corp. v. United States, 512 F.2d 706 (9th Cir. 1975), involved the question of whether a federal court may review a decision of the Forest Service denying an application for a special use permit for forest land for resort purposes. The court, after reviewing the various positions taken in recent cases, observed:
512 F.2d at 714.
The court then went on to set the standard by which such agency action is reviewable, in stating:
"Thus we face the following alternative propositions: Where consideration of the language, purpose and history of a statute indicate that action taken thereunder has been committed to agency discretion: (1) a federal court has jurisdiction to review agency action for abuse of discretion when the alleged abuse of discretion involves violation by the agency of...
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