United States v. 10.69 ACRES OF LAND, ETC., YAKIMA COUNTY

• Decision Date: 08 June 1970
• Docket Number: No. 23443.,23443.
• Citation: 425 F.2d 317
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. 10.69 ACRES OF LAND, MORE OR LESS, IN YAKIMA COUNTY, State of Washington, and the Confederated Tribes and Bands of the Yakima Indian Nation, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 317 (1970)

UNITED STATES of America, Plaintiff-Appellant, v. 10.69 ACRES OF LAND, MORE OR LESS, IN YAKIMA COUNTY, State of Washington, and the Confederated Tribes and Bands of the Yakima Indian Nation, et al., Defendants-Appellees.

No. 23443.

United States Court of Appeals, Ninth Circuit.

April 2, 1970.

Rehearing Denied June 8, 1970.

Jacques B. Gelin, Edmund Clark, Shiro Kashiwa, Asst. Atty. Gen., Dept. of Justice, Washington, D. C., Ronald R. Hull, Asst. U. S. Atty., Dean C. Smith, U. S. Atty., Yakima, Wash., for appellant.

James B. Hovis, Smith, Scott & Hanson, Yakima, Wash., for appellee.

Before CHAMBERS, BROWNING and KILKENNY,^* Circuit Judges.

BROWNING, Circuit Judge:

Invoking the provisions of 23 U.S.C. § 107(a), the State of Washington requested the Department of Transportation to acquire 10.69 acres of land in Yakima County, Washington, for use in the construction of an interstate highway. The lands in question are Indian tribal lands held in trust by the United States for the benefit of the Confederated Tribes and Bands of the Yakima Indian Nation.

The Department of Justice, acting at the request of the Department of Transportation, commenced this proceeding to condemn the lands. The district court dismissed. We affirm, on the ground that these lands can be appropriated for highway purposes only by utilizing the administrative procedures provided for in 23 U.S.C. §§ 107(d) and 317.

23 U.S.C. § 107(a) authorizes the Secretary of Transportation, at the request of a State, "to acquire lands or interests in lands * * * required by such State for rights-of-way or other purposes, in connection with the * * * Interstate System" of highways.¹

23 U.S.C. § 107(d) provides that whenever rights of way for the Interstate System are required "over lands or interests in lands owned by the United States, the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary to give the State * * * adequate rights-of-way * * *."

23 U.S.C. § 317 details the procedure to be followed in appropriating "lands or interest in lands owned by the United States * * * for the right-of-way of any highway." Subsection (a) of section 317 provides that the Secretary of Transportation "shall file with the Secretary of the Department supervising the administration of such lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to appropriate." Subsection (b) provides that the lands may be appropriated for highway purposes if within four months after the filing of the map by the Secretary of Transportation the Secretary of the Department having jurisdiction over the lands either (1) does not certify to the Secretary of Transportation that appropriation of the lands for highway purposes would be "contrary to the public interest or inconsistent with the purposes for which such land * * * has been reserved," or (2) does agree to the appropriation for highway purposes under such conditions as "he deems necessary for the adequate protection and utilization of the reserve." Subsection (c) provides that when the lands are no longer needed for highway purposes they "shall immediately revert to the control of the Secretary of the Department from which they had been appropriated."

There is no doubt that sections 107 and 317 are to be read together. Both were included in Title 23 when it was enacted into positive law as a comprehensive codification of all congressional enactments on the subject of highways;² the codification legislation was deliberately delayed in order that the provisions of the Federal-Aid Highway Act of 1956, which included what is now section 107 of Title 23, could be incorporated in it;³ conforming language changes were made in both section 107 and section 317;⁴ and a new subsection was added to section 317 which explicitly states that "the provisions of this section shall apply * * * to projects constructed on a Federal-aid system."⁵

The apparent scheme of these statutory provisions is that when property owned by the United States is to be appropriated for highway purposes the Secretary of Transportation must comply with the administrative procedures established by sections 107(d) and 317.

The reason seems plain. When property sought for highway purposes is owned by third persons, no conflicting governmental use is likely to be involved. When the property is already owned by the United States, however, the possibility of a potentially conflicting governmental use is substantial. For this reason sections 107(d) and 317 require the Secretary of Transportation to give notice of the proposed appropriation for highway purposes to the Secretary of the Department having control of the land, and provide a means by which the latter may protect any governmental interest in use of the property for purposes other than highway construction.

This interpretation of sections 107(a) and (d) and 317 of Title 23 is reinforced by complementary provisions in Title 25 relating specifically to Indian lands.

Sections 311 and 357 of Title 25 (which originated as sections 4 and 3, respectively, of the Act of March 3, 1901), and sections 323-328 of that Title, reflect essentially the same distinction as that found in the Title 23 provisions. Section 357 of Title 25 provides that lands allotted to Indians in severalty may be taken by condemnation. But section 311 provides that Indian reservation lands, and lands allotted in severalty but without full power of alienation, may be used for highway purposes by authorization of the Secretary of Interior⁶ "upon compliance with such requirements as he may deem necessary." And, similarly, sections 323-328 of Title 25, enacted as a later, general, statute (Act of February 5, 1948, c. 45, 62 Stat. 17), provide that the Secretary of Interior may grant rights of way for all purposes, "subject to such conditions as he may prescribe,"⁷ across lands held in trust by the United States for individual Indians or tribes, or owned by them subject to restrictions against alienation, or acquired or set aside for the use and benefit of the Indians, "upon application by the department or agency having jurisdiction over the activity for which the right-of-way is to be used."

The structure of these provisions of Titles 23 and 25, and the evident purpose they serve, offer strong support for interpreting sections 107(a) and (d) and 317 of Title 23 to mean that Indian tribal lands may be secured for highway use only by administrative appropriation under sections 107(d) and 317, and not by condemnation under section 107(a). The officials most immediately concerned with the administration of the federal highway program are apparently of the same view.⁸

The government's arguments to the contrary are not persuasive.

We agree, of course, that Congress may provide for the condemnation of Indian tribal lands,⁹ and that the taking of Indian lands may be authorized by a general statute without a specific reference to such lands.¹⁰ But these generalizations do not establish that Congress intended 23 U.S.C. § 107(a) to authorize the Secretary of Transportation to condemn Indian tribal lands for highway purposes whenever he thought it desirable to do so, and thus to circumvent the Department of Interior, which has had jurisdiction over Indians and their property for over 120 years,¹¹ and negate the protective purposes evident in 25 U.S.C. §§ 323-328.

The government contends that the reference in section 107(d) "to lands or interests in lands owned by the United States," was intended to limit administrative appropriation to lands in which the United States owns the beneficial interest. But the ordinary meaning of these words encompasses the fee title interest of the United States in tribal lands involved here; and obviously there is substantial reason for requiring the consent of the relevant Department where the government's interest is that of a fiduciary charged with protecting the interests of designated beneficiaries. Moreover, as originally enacted, the phrase in 23 U.S.C. § 107(d) read "public lands or reservations of the United States"¹² — which in similar context has been held to include Indian reservations¹³ — and the change to the present language was made only "for purposes of clarity." H.R.Rep. No. 1938, 85th Cong. 2d Sess., 34 (1958).

The government argues that since 23 U.S.C. § 107(d) states that the Secretary of Transportation "may" make right-of-way arrangements with the Secretary of the Department having jurisdiction over the lands, it merely provides a permissible alternative to condemnation which the Secretary of Transportation in his discretion may choose to ignore. But this argument runs directly contrary to the language of 23 U.S.C. § 317, which provides in mandatory terms that the Secretary of Transportation "shall" file a map of the lands sought with the Secretary of the Department supervising the administration of the lands, and empowers the latter to bar appropriation for highway purposes or condition such appropriation upon terms which will protect the governmental interest in continued utilization of the reserve for non-highway purposes.

The mandatory, protective, provisions of section 317 have governed the appropriation of public lands for highway purposes since 1921.¹⁴ There is nothing in the legislative history of section 107(d), enacted 35 years later,¹⁵ which suggests that Congress intended to abandon the mandatory aspect of section 317 and vest absolute discretion in the Secretary of Transportation to take any public lands for highway purposes.

There is no intermediate position. If the government's interpretation of section 107(d) were accepted, the Secretary of Transportation would be equally at liberty to condemn a right of way for the Interstate System of highways through national parks and military reservations without regard to the Department of Interior or the Defense...