Sierra Club v. Hickel

• Decision Date: 22 September 1972
• Docket Number: No. 71-1940,71-1941.,71-1940
• Citation: 467 F.2d 1048
• Parties: SIERRA CLUB and Citizens for Clean Air and Water, Plaintiffs-Appellants and Cross-Appellees, v. Walter J. HICKEL, individually and as Secretary of the Interior, et al., Defendants-Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.2d 1048 (1972)

SIERRA CLUB and Citizens for Clean Air and Water, Plaintiffs-Appellants and Cross-Appellees, v. Walter J. HICKEL, individually and as Secretary of the Interior, et al., Defendants-Appellees and Cross-Appellants.

Nos. 71-1940, 71-1941.

United States Court of Appeals, Sixth Circuit.

September 22, 1972.

Michael T. Honohan, Cleveland, Ohio, for plaintiffs-appellant; Benesch, Friedlander, Mendelson & Coplan, Jerome S. Kalur, Jamison, Ulrich, Burkhalter & Hesser, Cleveland, Ohio, Bruce J. Terris, Washington, D.C., Donald W. Large, University of Wis. School of Law, Madison, Wis., on briefs.

Carl Strass, Washington, D.C., and Wilson W. Snyder, Toledo, Ohio, for defendants-appellees; Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Dept. of Justice, Washington, D.C., John Lansdale, Jr., George I. Meisel, Squire, Sanders & Dempsey, Cleveland, Ohio, Leslie Henry, Fuller, Henry, Hodge & Snyder, Toledo, Ohio, on brief.

Before WEICK and McCREE, Circuit Judges, and FEIKENS,^* District Judge.

WEICK, Circuit Judge.

Sierra Club and Citizens for Clean Air and Water filed their complaint in the District Court for declaratory judgment, restraining order and equitable relief in which they sought to nullify a completed exchange of lands between the Secretary of Interior and two public utility companies (Toledo Edison Company and Cleveland Electric Illuminating Co., C.E.I.), made two years previously, claiming that the exchange agreement was improper and unauthorized and in derogation of the Secretary's statutory duties and void. They further sought to enjoin the Director of the Atomic Energy Commission and the Commission from holding hearings for the issuance of a construction permit and to revoke the previous construction exemption granted by the Commission. They further sought a declaration that the exchange of lands violated a treaty with Mexico known as the "Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals" and a declaration that 16 U.S.C. § 668dd, under which statute the exchange was made, was unconstitutional.

Motions to dismiss were filed by the Secretary and the two utility companies and were submitted to District Judge Green. In a memorandum opinion and order, Judge Green held that plaintiffs had standing to sue but granted the motions to dismiss on the grounds of sovereign immunity and that agency action, committed by law to agency discretion, was not reviewable by the courts.

Plaintiffs then filed an amended complaint which was a radical departure from their original complaint. The amended complaint contained only one cause of action whereas the original complaint had set forth four. This amended complaint sought only to declare that the transfer of title from the United States to the two public utilities "was and is an arbitrary and capricious act and constitutes an abuse of discretion. Plaintiffs pray that this Court implement said declaration by issuing an order directing defendants Toledo Edison and C.E.I. to return title to the Navarre Marsh to the United States."¹ It is significant that plaintiffs did not ask that the United States be ordered to return to the utilities the title to the land which the Government received from them in the exchange. This omission, obviously, was not an oversight on the part of the plaintiffs but a clear recognition on their part of the salutary rule that no court has jurisdiction to divest title of the United States to sovereign property. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), rehearing denied, 338 U.S. 840, 70 S.Ct. 31, 94 L.Ed. 514 (1949). The position of the plaintiffs, if adopted by the Court, would leave the two utilities in a very precarious position, losing the land which they acquired by exchange and also the Darby Marsh which they conveyed to the Government. Plaintiffs, however, in their brief suggest that the utilities may not be entirely without any remedy as they might sue the United States in the Court of Claims for damages for confiscating their property. This is a hollow remedy as the utilities should be entitled to the return of their property as a matter of right if the exchange is rescinded.

The Secretary and the utilities filed a motion to dismiss the amended complaint which was submitted to District Judge William K. Thomas under the individual calendar system. Judge Thomas considered the matter and in a Memorandum Opinion and Order granted the motions to dismiss on the same grounds as were relied on by District Judge Green. The plaintiffs have appealed. The defendants cross-appealed raising the issue of standing. We affirm.

I The Exchange of Lands

The two utilities which serve northern Ohio with electric power are co-developers of the Davis-Besse Nuclear Power Station. Initially, and prior to 1968, they had secured an option on and later acquired the legal title to a 480-acre tract of land in Ottawa County, Ohio, abutting on Lake Erie, and known as Darby Marsh. The United States owned a tract of land in the same county bordering on the lake and consisting of about 455 acres of marshland and 77 acres in a corner most of which was upland. It was known as the Navarre Marsh and is located farther away from Port Clinton, Ohio, than Darby Marsh.

The United States, acting through its Department of Interior, Fish and Wildlife Service, Bureau of Sport Fisheries and Wildlife, entered into a written agreement with the utilities to exchange the Navarre Marsh for the Darby Marsh. As part of the consideration, the utilities agreed to lease back to the United States, rent free for fifty years, about 455 acres (except strips for water canals) and another similar lease for twenty-five years of adjacent lands for a wildlife refuge subject to certain reserved rights. The utilities further agreed to spend up to $175,000 to rebuild 3200 feet of dikes on the Darby Marsh; maintain dikes on the north and south sides of the Navarre Marsh, and install three electric pumps on the Navarre Marsh to maintain proper water levels. The exchange was completed on October 3, 1968, when the utilities conveyed the Darby Marsh to the United States and the Government conveyed Navarre Marsh to the utilities. Upon completion of the exchange, the United States had a wildlife refuge of twice the number of acres it originally had (less the strips for canals and reserved rights) and, in addition, the improvements and benefits above related.

II The Authority of the Secretary of Interior

In making the exchange, the Secretary acted under the authority of 16 U.S.C. § 668dd(b)(3)² which provides as follows:

"(b) In administering the System, the Secretary is authorized—

* * * * * *

(3) to acquire lands or interests therein by exchange (a) for acquired lands or public lands under his jurisdiction which he finds suitable for disposition, or (b) for the right to remove, in accordance with such terms and conditions as the Secretary may prescribe, products from the acquired or public lands within the System. The values of the properties so exchanged either shall be approximately equal, or if they are not approximately equal the values shall be equalized by the payment of cash to the grantor or to the Secretary as the circumstances require."

It will be noted, as plaintiffs agree, that the statute confers broad discretion on the Secretary in the exchange of lands. No conditions relating to the environment were imposed in the statute. This is made clear by § 668dd(a) which provides:

"(a) . . . No acquired lands which are or become a part of the System may be transferred or otherwise disposed of under any provision of law (except by exchange pursuant to subsection (b)(3) of this section) unless (1) the Secretary of the Interior determines after consultation with the Migratory Bird Conservation Commission that such lands are no longer needed for the purposes for which the System was established, and (2) such lands are transferred or otherwise disposed of for an amount not less than (A) the acquisition costs of such lands, in the case of lands of the System which were purchased by the United States with funds from the migratory bird conservation fund, or (B) the fair market value of such lands (as determined by the Secretary of the date of the transfer or disposal), in the case of lands of the System which were donated to the System. The Secretary shall pay into the migratory bird conservation fund the aggregate amount of the proceeds of any transfer or disposal referred to in the preceding sentence." (Italics added)

Plaintiffs contend that the Secretary violated 16 U.S.C. §§ 701, 715a, 715i, 742a(3), 742b(c).

Sections 715 and 715i apply only to lands for purchase or rent under §§ 715-715d, 715e, 715f-715k and 715l-715r.

The remaining sections, namely, 16 U.S.C. §§ 701, 742a(3) and 742b set forth the goals of the Department of Interior under the Migratory Game and Insectivorous Bird Chapter of Title 16. They contain no limitation on the Secretaries' authority in the exchange of lands.

The Administrative Procedure Act (APA) 5 U.S.C. § 701 et seq., relied on by plaintiffs, expressly excepts its application to the extent that "agency action is committed to agency discretion by law" 5 U.S.C. § 701(a)(2). Since, as we have pointed out, the Secretary had discretion to determine whether he should enter into the agreement for the exchange of the lands, his action in so doing is not reviewable by the courts. Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958); United States v. Walker, 409 F. 2d 477 (9th Cir. 1969); Knight Newspapers, Inc. v. United States, 395 F.2d 353 (6th Cir. 1968); Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), cert. denied, 381 U.S. 904, 85 S.Ct. 1449, 14 L.Ed.2d 286 (1965.)

III Sovereign Immunity

The Supreme Court made it clear that in a case of this type the crucial question "is whether the relief sought in a...