Strickland v. Morton, No. 74-1618

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BARNES, CHOY and GOODWIN; BARNES
Citation519 F.2d 467
Parties5 Envtl. L. Rep. 20,678 Ray STRICKLAND and Sam Lorimer, Appellants, v. Hon. Rogers C. B. MORTON et al., Appellees.
Docket NumberNo. 74-1618
Decision Date18 June 1975

Page 467

519 F.2d 467
5 Envtl. L. Rep. 20,678
Ray STRICKLAND and Sam Lorimer, Appellants,
v.
Hon. Rogers C. B. MORTON et al., Appellees.
No. 74-1618.
United States Court of Appeals,
Ninth Circuit.
June 18, 1975.

Page 468

Ray Strickland, Sam Lorimer, pro se.

William C. Smitherman, U. S. Atty., Phoenix, Ariz., Wallace H. Johnson, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Richard S. Alleman, Asst. U. S. Atty., Phoenix, Ariz., George R. Hyde, Eva Datz, Dept. of Justice, Washington, D. C., for appellees.

OPINION

Before BARNES, CHOY and GOODWIN, Circuit Judges.

BARNES, Senior Circuit Judge:

Appellants seek to reverse a decision of the Secretary of the Interior denying their separate applications for homestead entry. Under procedures specified in the Classification and Multiple Use Act of 1964, 43 U.S.C. §§ 1411-18, Federal public lands are to be classified by the Secretary of the Interior either as being "suitable for disposal," or alternatively, as being of such value "as to make them more suitable for retention in Federal ownership" and managed for public purposes. A classification decision that lands are not suitable for disposal has the effect of segregating from homestead entry the lands so classified. The lands which appellants sought to homestead being classified (prior to appellants' applications) as lands "more suitable for retention," the Secretary denied appellants' applications for homestead entry.

Appellants, invoking the jurisdictional provisions of the Administrative Procedure Act, sought judicial review of the Secretary's denial of their applications in Federal District Court. The district court dismissed appellants' action on the authority of this circuit's decision in Mollohan v. Gray, 413 F.2d 349 (9th Cir. 1969), which held that agency actions under the Taylor Grazing Act, 43 U.S.C. § 315 et seq., and under similar "permissive type" statutes, are "agency action(s) . . . committed to agency discretion by law" and, therefore, under the provisions of the Administrative Procedure Act, 5 U.S.C. § 701(a)(2), are not subject to judicial review. (See Mollohan, supra, at 352, and 352, n. 5: and Lutzenhiser v. Udall, 432 F.2d 328 (9th Cir. 1970).) The Classification and Multiple Use Act of 1964, with which the instant case is involved, supplements the Taylor Grazing Act, and is also such a "permissive type" statute. Thus, the district court, relying on the aforementioned precedents, concluded that it did not have jurisdiction in this case to review the Secretary's classification of the land here in question as land more suitable to be retained in Federal ownership and managed for public purposes.

There is no doubt that the district court correctly applied the legal principles set forth in our decisions in Mollohan and Lutzenhiser; however, a reinspection of those principles is now in order since both of those decisions were rendered before the United States Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) which strictly interpreted § 701(a)(2), drastically limiting and confining that section's applicability. Under the Overton Park case, § 701(a) (2)'s preclusion of judicial review of "agency action(s) . . . committed to agency discretion by law" has been narrowly interpreted so that it deprives the court of jurisdiction to review agency actions only "in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply'." (401 U.S. at 410, 91 S.Ct. at 821.)

In light of the test stated in Overton Park, the question of whether the district court was deprived of jurisdiction by § 701(a)(2) in this case, depends upon whether the discretionary powers to classify land, committed to the Secretary by the provision of the Classification and Multiple Use Act of 1964, 43 U.S.C. § 1411, are so broad that the court cannot discern from the language of the statute, or from legislative intent, a legal basis upon which to review the Secretary's exercise of his discretion in the instant case.

Page 469

Section 1411 of the Classification and Multiple Use Act of 1964 provides in pertinent part:

§ 1411. Disposal or retention of lands; classification by Secretary; considerations; designations

Consistent with and supplemental to the Taylor Grazing Act of June 28, 1934 . . .

(a) The Secretary of the Interior shall develop and promulgate regulations containing criteria by which he will determine which of the public lands and other Federal lands . . . shall be (a) disposed of because they are (1) required for the orderly growth and development of a community or (2) are chiefly valuable for residential, commercial, agricultural (exclusive of lands chiefly valuable for grazing and raising forage crops), industrial, or public uses or development or (b) retained, at least during this period, in Federal ownership and managed for (1) domestic livestock grazing, (2) fish and wildlife development and utilization, (3) industrial development, (4) mineral production, (5) occupancy, (6) outdoor recreation, (7) timber production, (8) watershed protection, (9) wilderness preservation, or (10) preservation of public values that would be lost if the land passed from Federal ownership. . . .

(b) The Secretary of the Interior shall, as soon as possible, review the public lands as defined herein, in the light of the criteria contained in the regulations issued with this section 1 to determine which lands shall be classified as suitable for disposal and which lands he considers to contain such values as to make them more suitable for retention in Federal ownership for interim management under the principles enunciated in this section. In making his determination the Secretary shall give due consideration to all pertinent factors, including, but not limited to, ecology, priorities of use, and the relative values of the various resources in particular areas. . . . Pub.L. 88-607, § 1, Sept. 19, 1964, 78 Stat. 986.

The provisions of this statute breathe discretion at every pore. Its language indicates, and the statute's legislative history serves to emphasize, 2 that Congress intended this Act to be a general grant of authority to the Secretary to administer the retention and disposal of those public lands under his domain as he felt would best comport with the national interest and the public welfare. The Secretary's exercise of his discretion is subjected by the Statute to a required observance of certain procedural due process restrictions (not here put at issue). However, from a viewpoint of legislative restrictions on the Secretary's exercise of his discretion on the merits of a classification...

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61 practice notes
  • Blackwater v. Salazar, No. 11–5128.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 2012
    ...the 1988 ESA amendments. See Op. at 434 (citing Fund for Animals v. Rice, 85 F.3d 535, 547 (11th Cir.1996) (citing Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975))). Viewing the ESA as a whole, see Dole v. United Steelworkers of Am., 494 U.S. 26, 42–43, 110 S.Ct. 929, 108 L.Ed.2d 23 ......
  • State v. United States Dep't of Agriculture, Nos. 08–8061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 21, 2011
    ...limits upon agency discretion. Rather, it is language which ‘breathe(s) discretion at every pore.’ ” (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975))); see also United States v. New Mexico, 438 U.S. 696, 713, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978) (“[W]e conclude that the Mul......
  • Mada-Luna v. Fitzpatrick, MADA-LUN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 30, 1987
    ...the court will ... "have law to apply" ' " and that will therefore be judicially reviewable) (quoting Strickland v. Morton, 519 F.2d 467, 470 (9th Cir.1975) (citations Moreover, the determination that a directive constitutes a general statement of policy is binding in future ......
  • Biodiversity Legal Foundation v. Norton, No. CIV.A.00-3030(RMC).
    • United States
    • U.S. District Court — District of Columbia
    • September 30, 2003
    ...as to what is required in a recovery plan, the ESA `breathe[s] discretion at every pore.'" Id. (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th The Court is generally persuaded by the Eleventh Circuit's reasoning in Rice and agrees that the 1983 Recovery Plan was merely a guidelin......
  • Request a trial to view additional results
61 cases
  • Blackwater v. Salazar, No. 11–5128.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • August 17, 2012
    ...the 1988 ESA amendments. See Op. at 434 (citing Fund for Animals v. Rice, 85 F.3d 535, 547 (11th Cir.1996) (citing Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975))). Viewing the ESA as a whole, see Dole v. United Steelworkers of Am., 494 U.S. 26, 42–43, 110 S.Ct. 929, 108 L.Ed.2d 23 ......
  • State v. United States Dep't of Agriculture, Nos. 08–8061
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 21, 2011
    ...limits upon agency discretion. Rather, it is language which ‘breathe(s) discretion at every pore.’ ” (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir.1975))); see also United States v. New Mexico, 438 U.S. 696, 713, 98 S.Ct. 3012, 57 L.Ed.2d 1052 (1978) (“[W]e conclude that the Mul......
  • Mada-Luna v. Fitzpatrick, MADA-LUN
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 30, 1987
    ...the court will ... "have law to apply" ' " and that will therefore be judicially reviewable) (quoting Strickland v. Morton, 519 F.2d 467, 470 (9th Cir.1975) (citations Moreover, the determination that a directive constitutes a general statement of policy is binding in future ......
  • Biodiversity Legal Foundation v. Norton, No. CIV.A.00-3030(RMC).
    • United States
    • U.S. District Court — District of Columbia
    • September 30, 2003
    ...as to what is required in a recovery plan, the ESA `breathe[s] discretion at every pore.'" Id. (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th The Court is generally persuaded by the Eleventh Circuit's reasoning in Rice and agrees that the 1983 Recovery Plan was merely a guidelin......
  • Request a trial to view additional results

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