Sierra Club v. Hickel , 467 F.2d 1048 ( 1972 )

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 715Z-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.)

Ill

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 suit nominally addressed to the officer is relief against the sovereign.” Larson v. Domestic & Foreign Commerce Corp., supra.

This is very easy to determine in the present case where the plaintiffs are attacking the validity of a completed exchange of lands between the sovereign and private persons. Their claim that, since filing their amended complaint, they are not now asking for any relief against United States property is transparent. District Judge Thomas in his Memorandum properly characterized it as follows:

“Thus plaintiffs seek to circumvent Judge Green’s conclusion, in dismissing the original complaint, that

The relief sought is a declaration that the land exchange is void and must be set aside as a nullity. The effect of such a decree would be to restore title to the lands involved to where they stood prior to the exchange.

Plaintiffs argue that

Whatever claim the utilities might have as the result of the granting of the relief which plaintiffs have requested, could certainly be protected either by a cross-claim or a later action in the Court of Claims.

Manifestly, if the doctrine of sovereign immunity denies the jurisdiction of this court to declare the exchange agreement a nullity then this court also lacks jurisdiction to entertain a cross claim by the utilities seeking restoration of Darby Marsh from the Government, a disposition of ‘unquestionably sovereign property,’ Larson, supra at 619 [691] n. 11 [69 S.Ct. at 1462].

Invoking the equitable powers of this court plaintiffs ask for an order ‘directing defendants Toledo Edison and CEI to return title of Navarre Marsh to the United States.’ This court would not grant this request for equitable relief without simultaneously ordering the Government to return Darby Marsh to the utilities.

A decree in equity ‘should completely determine the controversy before the court,’ Stonega Coke & Coal Co. v. Price, 116 F.2d 618, 621 (4th Cir. 1940). Partial or incomplete decrees should not be entered, 27 Am.Jur.2d Equity § 108 (1966). In more graphic language, ‘equity delights to do justice, and that not by halves,’ 30 C.J.S. Equity § 104 (1965). Thus the equitable relief now sought, as before, involves ‘the disposition of unquestionably sovereign property’ and is barred by the doctrine of sovereign immunity as set forth in Larson, supra at 691 n. 11 [69 S.Ct. at 1462].”

Certainly if the United States were seeking to rescind the exchange of lands (which it is not) a court of equity, in granting such relief, would restore the parties to status quo. The Court would not require the filing of a cross-claim or a suit for damages in the Court of Claims in order to do equity and justice to the parties. The Government has not appropriated or confiscated property of the utilities and they would have no basis for filing either a cross-claim in this action or a damage suit in the Court of Claims. Here both the United States and the utilities are adhering to their contract. Since the United States could not rescind the exchange without restoring the utilities to status quo, it hardly seems necessary to point out that a stranger to the transaction stands in no better position.

We assume that plaintiffs made the Secretary of the Interior a party defendant to this action for a definite purpose, namely, to bind him as well as the United States by any decree of the Court.

The plaintiffs are asking the Court to declare “that the transfer of title to Navarre Marsh was and is an arbitrary and capricious act and constitutes an abuse of discretion. Plaintiffs further pray that this Court implement said declaration by issuing an order directing defendants Toledo Edison and CEI to return title of Navarre Marsh to the United States.”

As District Judge Thomas so aptly pointed out, the Court would hot issue such an order without restoring title to Darby Marsh in the utilities. Stevens v. McCoy, 60 Ohio St. 540, 54 N.E. 517 (1899); 21 O.Jur.2d, Exchange of Property, § 8; 30 Am.Jur.2nd, Exchange of Property § 41.

Equitable principles apply to the Government as well as to private individuals except when limited by statutory provisions. United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 26 S.Ct. 282, 50 L.Ed. 499 (1906); Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956), cert. denied, 353 U.S. 904, 77 S.Ct. 666, 1 L.Ed.2d 666 (1957).

In Larson v. Domestic & Foreign Commerce Corp., supra, the Court said:

“The request for an adjudication of the validity of the sale was thus, even in form, a request for an adjudication against the sovereign. Such a declaration of the rights of the respondent vis-á-vis the United States would clearly have been beyond the court’s jurisdiction.” Id. p. 689 fn. 9, 69 S.Ct. p. 1461.

It was argued that the action of the Secretary is invalid because it was based on an incorrect decision as to both law and fact. This argument was effectively answered in Larson, where the Court said:

“It is argued that an officer given the power to make decisions is only given the power to make correct decisions. If his decisions are not correct, then his action based on those decisions is beyond his authority and not the action of the sovereign. There is no warrant for such a contention in cases in which the decision made by the officer does not relate to the terms of his statutory authority. Certainly the jurisdiction of a court to decide a case does not disappear if its decision on the merits is wrong. And we have heretofore rejected the argument that official action is invalid if based on an incorrect decision as to law or fact, if the officer making the decision was empowered to do so. Adams v. Nagle, 1938, 303 U.S. 532, 542, 58 S.Ct. 687, 692, 82 L.Ed. 999. We therefore reject the contention here. We hold that if the actions of an officer do not conflict with the terms of his valid statutory authority, then they are the actions of the sovereign, whether or not they are tortious under general law, if they would be regarded as the actions of a private principal under the normal rules of agency. A Government officer is not thereby necessarily immunized from liability, if his action is such that a liability would be imposed by the general law of torts. But the action itself cannot be enjoined or directed, since it is also the action of the sovereign.” (Italics ours)

The Court further stated (at page 704, 69 S.Ct. at page 1468):

“As was early recognized, ‘the interference of the Courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief. . . . ’”

Other cases following and applying the rule in Larson v. Domestic & Foreign Commerce Corp., supra, are: Hawaii v. Gordon, 373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1956); Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962); See also Adams v. Nagle, 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999 (1938).

In Ogletree v. McNamara, 449 F.2d 93 (6th Cir. 1971), in referring to sovereign immunity, we said:

“Perhaps the minimum statement of that doctrine is that litigation must not be allowed to stop government in its tracks. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 704, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). In this regard the effect of the action upon the sovereign rather than its form is controlling. The fact that the defendants are all named as individuals does not change the result.” (Citing authority.)

One thing is certain and that is that if a third person is allowed to litigate the validity of exchanges of land made by the Secretary of Interior, whenever he believes that the Secretary acted improperly, there will be no more exchanges and the action of Congress providing for them will be frustrated.

In Sergeant v. Fudge, 238 F.2d 916 (6th Cir. 1956), we held that a litigant could not enjoin a decision by the Postmaster General to discontinue a post office. Similarly, in Manhattan-Bronx Postal Union v. Gronouski, 121 U.S.App.D.C. 321, 350 F.2d 451, 455 (1965), cert. den. 382 U.S. 978, 86 S.Ct. 548, 15 L.Ed.2d 469, the Postmaster General’s refusal to recognize the Postal Union was held not to be reviewable by the courts notwithstanding the claim that the decision was “unlawful, arbitrary and capricious” and “ ‘in violation of’ Executive Order No. 10988.”

The Court said:

“The short of appellants’ case is that appellee has misconstrued the President’s instructions, and the law is clear that an officer of the United States does not act outside his authority whenever he acts upon an erroneous decision of law or fact, if he is empowered to make the decision. See Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. at 695, 703, 69 S.Ct. 1457; Arizona ex rel. Arizona State Bd. of Public Welfare v. Hobby, 94 U.S.App.D.C. 170, 221 F.2d 498 (1954); Seiden v. Larson, supra, 88 U.S.App.D.C. [258] at 263, 188 F.2d [661] at 666.”

There is no question but that the Secretary of Interior was empowered by § 668dd(b)(3) to make the exchange. Furthermore, it should be pointed out that “the relief requested cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign or the disposition of unquestionably sovereign property.” Larson v. Domestic & Foreign Commerce Corp., supra, fn. 11 at 691 of 337 U.S., at 1462 of 69 S.Ct.

Here the United States and the two utilities have owned, possessed and used for more than two years the lands which they respectively acquired by deeds of conveyance in the exchange. The District Court has no jurisdiction to undo and unravel the transaction.

The Administrative Procedure Act does not waive sovereign immunity in an action involving the Secretary of Interior. Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529, 532 (8th Cir. 1967). See also: State of Washington v. Udall, 417 F.2d 1310, 1320 (9th Cir. 1969); Motah v. United States, 402 F.2d 1 (10th Cir. 1968); Cotter Corp. v. Seaborg, 370 F.2d 686 (10th Cir. 1966); Chournos v. United States, 335 F.2d 918 (10th Cir. 1964); Cyrus v. United States, 226 F.2d 416 (1st Cir. 1955); Coalition for United Community Action v. Romney, 316 F.Supp. 742 (N.D.Ill.1970).

IV

Standing

We have difficulty in following the argument that plaintiff’s members were using and enjoying the marsh which is a wildlife refuge or sanctuary for migratory birds, or that the exchange of lands would interfere with the right of plaintiff’s members to fish in Lake Erie. The marsh is not like a park which the public is invited to use.

Plaintiff’s action was to set aside an exchange of lands. It was not an action to enjoin the construction or operation of an atomic energy plant.

Since we have disposed of this case on its merits, it is not necessary for us to decide the issue of standing.

V

The Dissent

The dissent states:

“Can a nuclear power plant and a wildlife refuge exist side by side in the same marsh? That is the issue in this case.” Respectfully disagreeing, that is not the issue in this case. As before stated, the plaintiff’s action was not to enjoin the construction or operation of a nuclear power plant but rather to set aside an exchange of lands completed two years prior to the institution of this action and without restoring the parties to the status quo. We have shown that sovereign property cannot be taken from the government by the courts. The dissent undertakes to do this very thing contrary to the position taken by the plaintiffs on this issue. The Secretary of Interior had fully authority to make the exchange and even if he erred in fact or in law the courts have no jurisdiction to interfere.

Affirmed.

1 . The amended complaint abandoned Plaintiffs’ claim against the Director of the Atomic Energy Commission and the Commission, and also abandoned plaintiffs’ claims of treaty violation and the alleged unconstitutionality of 16 U.S.C. § 668dd.

2 . This is the statute which plaintiffs originally claimed was unconstitutional but later abandoned that claim.