Smith v. United States, Civ. No. 4721.

Decision Date19 December 1963
Docket NumberCiv. No. 4721.
Citation224 F. Supp. 402
PartiesMerrill P. SMITH, A. J. Jarnigan and Allen D. Talbot, Board of Commissioners of the Third Division Irrigation District, Riverton Project, etc., Plaintiffs, v. UNITED STATES of America, the Department of Interior, Bureau of Reclamation, et al., Defendants.
CourtU.S. District Court — District of Wyoming

J. J. Hickey, of Hickey, Rooney & Walton, Cheyenne, Wyo., for plaintiffs.

Robert N. Chaffin, U. S. Atty., Cheyenne, Wyo., for defendants.

KERR, District Judge.

This is an action in two counts brought by entrymen under the Third Irrigation District of the Riverton Irrigation Project located in Fremont County, Wyoming. In the first count the entrymen seek to compel the United States of America, the Department of Interior, Bureau of Reclamation, the Secretary of the Interior and the Commissioner of Reclamation to proceed to provide adequate compensation for losses sustained by the plaintiffs, occasioned by their reliance upon the information circulated by the Department of Interior, Bureau of Reclamation, and failure of the Department to comply with Section 412 of Title 43 U.S.C. That law provides that after December 5, 1924, no new project or new division of a project shall be approved for construction, nor shall estimates be submitted therefor by the Secretary until he secures detailed information concerning the water supply, the engineering features, the cost of construction, land prices and probable costs of development, and makes a finding in writing that it is feasible and adaptable for actual settlement and farm homes and that it will probably return the cost thereof to the United States.

The first claim is in the nature of a mandamus under Section 1361, 28 U.S. C.A., as enacted by Public Law 87-748, Section 1(a), October 5, 1962, which reads as follows:

"The district courts shall have original jurisdiction of any action in the nature of a mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff."

This section of the law does not contain a waiver of the sovereign immunity of the United States in a mandamus action. Congress has not thereby conferred upon this court jurisdiction to entertain any action seeking to require the United States of America to grant the relief sought by plaintiffs in their first claim.

Assuming for the purpose of this motion that the facts well pleaded in the complaint are true, and being completely sympathetic with the predicament of the entrymen, I am, nevertheless, constrained to find that Public Law 87-748 has not conferred jurisdiction upon this court to compel the United States of America, the Department of Interior, the Bureau of Reclamation, the Secretary of Interior, or Commissioner of Reclamation to do any of the following acts prayed for in the complaint:

(1) to immediately proceed to provide adequate compensation ($2,520,000.00) for the losses sustained by plaintiffs and diverse other persons;
(2) to submit to Congress a determination of the lack of economic feasibility of the Third Division Project; and
(3) to request Congress for such relief as will provide equity to the entrymen damaged.

To come within 28 U.S.C.A., § 1361, plaintiffs must show that defendants owe to the entrymen under the Third Division the duty to do the foregoing acts. Plaintiffs have not shown that the defendants have a duty to compensate the settlers for any losses they might have sustained. The Reclamation Act does not guarantee success to those who enter upon the lands.

Plaintiffs have not cited any authority and I have been unable to find any whereby this court has the power to direct officers or employees of the government to demand Congressional action such as is prayed for by the plaintiffs. The Constitution of the United States has created three distinct departments of government: The Legislative, the Executive and the Judicial. It would thwart every constitutional canon for this court to order an arm of the Executive Department to demand action by the Legislative Department.

Plaintiffs ask also for a determination by the defendants that the Third Division lacks economic feasibility. This court has no general supervisory power over these defendants by which to control their decisions with respect to the feasibility or lack of feasibility of these projects. Riverside Oil Company v. Hitchcock, 190 U.S. 316, 23 S.Ct. 698, 47 L.Ed. 1074 (1903). The law requires the Secretary of the Interior to make a written finding that a new project or new division of a project is feasible before it can be approved for construction. It does not create a duty that the Secretary of Interior, sixteen years after the project was commenced, to make a finding that it is not feasible. The Secretary of Interior has no such duty that this court can compel him to perform under 28 U.S.C.A. § 1361. Even if that duty were found to exist, the law does not confer upon the judiciary any control over the substance of any finding which the Secretary might make. McEachern v. United States, W.D.S.C., 212 F.Supp. 706 (1963). Whether or not the Division is feasible is a finding which the Secretary, not this court, is required to make before the project is approved for construction.

For the foregoing reasons, I find that the first count of the complaint fails to state a claim upon which relief can be granted and the motion to dismiss should be sustained.

The second count of the complaint is brought under the provisions of the Federal Tort Claims Act and is based, in part, on alleged misrepresentations and inducements by the defendants. Liability for misrepresentation is expressly excluded from 28 U.S.C.A. § 1346(b) by 28 U.S.C.A. § 2680, which reads in part as follows:

"The provisions of this chapter and section 1346(b) of this title shall not apply to— * * * (h) Any claim arising out of * * * misrepresentation * * *."

Congress has not made actionable a claim against the United States resulting from statements or representations which allegedly induce persons to act to their detriment. United States v. Neustadt et ux., 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961)....

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4 cases
  • International Fed. of P. & T. Eng., Loc. No. 1 v. Williams
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 7 Febrero 1974
    ...Company v. Tax Court of United States, 230 F.Supp. 779 (D.C. Mass., 1964), affirmed 340 F.2d 947 (1st Cir., 1965); Smith v. United States, 224 F.Supp. 402 (D.C.Wyo., 1963), affirmed 333 F.2d 70 (10th Cir., 1964); McEachern v. United States, 212 F.Supp. 706 (W.D.S.C., 1963), affirmed in part......
  • Craig v. Colburn
    • United States
    • U.S. District Court — District of Kansas
    • 9 Marzo 1976
    ...Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966), cert. denied, 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67; Smith v. United States, 224 F.Supp. 402 (D.Wyo.1963), aff'd, 333 F.2d 70 (10th Cir. 1964); International Fed. of P. & T. Eng., Loc. No. 1 v. Williams, 389 F.Supp. 287, 290 (E.D.......
  • Hubbard v. State
    • United States
    • Iowa Supreme Court
    • 14 Enero 1969
    ...States (9 Cir., 1962), 307 F.2d 99, 102; Steinmasel v. United States (D S.D. SD, 1962), 202 F.Supp. 335, 338; and Smith v. United States (D Wyo., 1963), 224 F.Supp. 402, 405. Both decisions have been cited frequently by federal jurisdictions since adoption of the Iowa Act. Jones v. United S......
  • Smith v. United States, 7628.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 3 Junio 1964
    ...by 28 U.S.C. § 2680(a).10 Affirmed. 1 28 U.S.C. §§ 1361 and 1391(e). 2 28 U.S.C. §§ 1346(b) and 2671 et seq. 3 See Smith v. United States, D.C.Wyo., 224 F.Supp. 402. 4 Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60; Decatur v. Paulding, 14 Pet. 497, 515, 10 L.Ed. 559. 5 See Riverside Oil......

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