ANDRUS, SECRETARY OF THE INTERIOR v. UTAH
No. 78-1522
Supreme Court of the United States
Argued December 5, 1979—Decided May 19, 1980
446 U.S. 500
Peter Buscemi argued the cause pro hac vice for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, and Carl Strass.
Richard L. Dewsnup, Assistant Attorney General of Utah, argued the cause for respondent. With him on the brief were Robert B. Hansen, Attorney General, and Dallin W. Jensen, Michael M. Quealy, and Paul E. Reimann, Assistant Attorneys General.*
MR. JUSTICE STEVENS delivered the opinion of the Court.
The State of Utah claims the right to select extremely valuable oil shale lands located within federal grazing districts in lieu of and as indemnification for original school land grants of significantly lesser value that were frustrated by federal pre-emption, or private entry, prior to survey. The question presented is whether the Secretary of the Interior is obliged to accept Utah‘s selections of substitute tracts of the
Utah became a State in 1896. In the Utah Enabling Act of 1894, Congress granted Utah, upon admission, four numbered sections in each township for the support of public schools. The statute provided that if the designated sections had already “been sold or otherwise disposed of” pursuant to another Act of Congress, “other lands equivalent thereto . . . are hereby granted.” The substitute grants, denominated “indemnity lands” were “to be selected within the State in such manner as [its] legislature may provide with the approval of the Secretary of the Interior.”1
Because much of the State was not surveyed until long after its admission to the Union, its indemnity or “in lieu” selections were not made promptly. On September 10, 1965,
In January 1974, before Utah‘s selection lists had been approved or disapproved, the Governor of Utah agreed that the Secretary of the Interior could include two tracts comprising 10,240 acres of selected indemnity lands in an oil shale leasing program, on the understanding that the rental proceeds would ultimately be paid to the State if its selections were approved. The proceeds of the leases are of substantial value.2
In February 1974, the Secretary advised the Governor that he would not approve any indemnity applications that involved “grossly disparate values.”3 He wrote:
“As you know, the Department of the Interior has not as yet acted upon the State‘s [indemnity] applications. The principal question presented by the applications is whether pursuant to Section 7 of the Taylor Grazing Act, 48 Stat. 1272 (1934), as amended,
43 U. S. C. § 315f (1972) , the Department may refuse to convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secre-tary of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect. “In the present case, although the land values are not precisely determined, it appears that the selections involve lands of grossly disparate values, within the meaning of the Department‘s policy. While the Department is not yet prepared to adjudicate the State‘s applications, I feel it is appropriate at this time to advise you that we will apply the above-mentioned policy in that adjudication.”4
The State promptly filed this action in the United States District Court for the District of Utah. The facts were stipulated, and Judge Ritter entered summary judgment in favor of the State. He held that if Utah‘s selections satisfy all of the statutory criteria governing indemnity selections when filed,5 the Secretary has no discretion to refuse them
Because the dispute between the parties involves a significant issue regarding the disposition of vast amounts of public lands,6 we granted certiorari. 442 U. S. 928. We believe that the Court of Appeals and the District Court failed to give proper effect to the congressional policy underlying the provision for indemnity selection, and specifically misconstrued § 7 of the Taylor Grazing Act as amended in 1936. We therefore reverse.
I
The Enabling Act of each of the public-land States admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools.7 Whether the Enabling Act contained words of present
As Utah correctly emphasizes, the school land grant was a “solemn agreement” which in some ways may be analogized to a contract between private parties. The United States agreed to cede some of its land to the State in exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry.
The State‘s right to select indemnity lands may be viewed as the remedy stipulated by the parties for the Federal Gov-
The history of the general statutes relating to land grants for school purposes confirms this view. Thus, for example, in 1859, when confronted with the fact that many settlers had occupied unsurveyed lands that had been included in school grants, Congress confirmed the settlers’ claims and granted to the States “other lands of like quantity.”
The school land grants gave the States a random selection of public lands subject, however, to one important exception. The original school land grants in general, and Utah‘s in particular, did not include any numbered sections known to be mineral in character by the time of survey. United States v. Sweet, 245 U. S. 563. This Court so held even though the Utah Enabling Act “neither expressly includes mineral lands nor expressly excludes them.” Id., at 567. The Court‘s opinion stressed “the practice of Congress to make a distinction between mineral lands and other lands, to deal with them
In 1927, some nine years after the decision in United States v. Sweet, supra, Congress changed its policy to allow grants of school lands to embrace numbered sections that were mineral in character.12 But the 1927 statute did not expand the kinds of land available for indemnity selections.13 Thus, after 1927 even if the lost school lands were mineral in character, a State was prohibited from selecting mineral lands as indemnity. It was not until 1958 that Congress gave the States the right to select mineral lands to replace lost school lands, and that right was expressly conditioned on a determination that the lost lands were also mineral in character.
Throughout the history of congressional consideration of school land grants and related subjects—a history discussed at great length in the voluminous briefs submitted to us—we find no evidence whatever of any congressional desire to have the right to select indemnity lands do anything more than make the States whole for the loss of value resulting from the unavailability of the originally designated cross section of lands within the State. There is certainly no suggestion of a purpose at any time, including 1958, to allow the States to obtain substantially greater values through the process of selecting indemnity land.
Thus, viewing the program in this broad historical perspective, it is difficult to identify any sensible justification for Utah‘s position that it is entitled to select any mineral lands it chooses regardless of the value of the school sections lost. Nevertheless, Utah is quite correct in arguing that the Secretary has no power to reject its selections unless Congress has given it to him. We have no doubt that it has.
II
Prior to the 1930‘s, cases in this Court had made it perfectly clear that the Federal Government retained the power to appropriate public lands embraced within school grants for other
In the 1930‘s, however, dissatisfaction with the rather loose regime governing use and disposition of unappropriated federal lands, prompted mostly by the waste caused by unregulated stock grazing,15 led to a series of congressional and executive actions that are critical to this case. By means of these actions, all unappropriated federal lands were withdrawn from every form of entry or selection. The withdrawal did not affect the original school land grants in place, whether or not surveyed, but did include all lands then available for school indemnity selections. The lands thus withdrawn were thereafter available for indemnity selections only as permitted by the Secretary of the Interior in the exercise of his discretion.
The sequence of events was as follows. In 1934, Congress enacted the Taylor Grazing Act “[t]o stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes.” 48 Stat. 1269. Section 1 authorized the Secretary of the Interior to establish grazing districts in up to 80 million acres of unappropriated federal lands; the establishment of such a district had the effect of withdrawing all lands within its boundaries “from all
Because the Taylor Grazing Act as originally passed in 1934 applied to less than half of the federal lands in need of more orderly regulation,18 President Roosevelt promptly issued Ex-
Although the description of the withdrawal power does not specifically mention state indemnity selections, the power as described is so broad and general that it seems clear that had such an exception been intended, Congress would have made it express.
In Wyoming v. United States, 255 U. S. 489, this Court plainly indicated that an executive withdrawal of federal land under the Pickett Act would defeat a later attempt to select any part of such land as indemnity for lost school sections. The holding in the case was that an indemnity selection‘s validity should be tested as of the time made, and that a subsequent Pickett Act withdrawal could not defeat an earlier selection by the State that was otherwise valid. If a Pickett Act withdrawal could not preclude a school land indemnity selection, there would have been no need for the Court to reach the timeliness issue.
The Pickett Act was repealed by the Federal Land Policy and Management Act of 1976, § 704 (a), 90 Stat. 2792, but all previous withdrawals
“The Secretary of the Interior is authorized, in his dis-
cretion, to examine and classify any lands withdrawn or reserved by Executive order . . . or within a grazing district, which are . . . proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws. . . . Such lands shall not be subject to disposition . . . until after the same have been classified. . . .” (Emphasis added.)
The changes in this section were apparently prompted in part by the fact that while the Taylor Grazing Act withdrawal preserved the States’ school grants in place, no provision had been made in the 1934 version for the States’ indemnity selections from land within grazing districts even though the States had expressed the concern that “the establishment of a grazing district would restrict the State in its indemnity selections.”22 While this omission may not have been critical in 1934 when the Act was passed—since only about half of the unappropriated federal land was then affected—by 1936, as a consequence of Executive Order No. 6910, no land at all was available in the public domain for indemnity selections. It is therefore reasonable to infer that the amendments to § 7 were at least in part a response to the
Further, it was the clear position of the Interior Department in 1935
The 1936 amendment to § 7 rectified that problem, but did not give the States a completely free choice in making indemnity selections.24 Rather, Congress decided to route the States’ selections through § 7, and thereby to condition their acceptance on the Secretary‘s discretion. That decision was consistent with the dominant purpose of both the Act and Executive Order No. 6910 to exert firm control over the Nation‘s land resources through the Department of the Interior. In sum, the Taylor Grazing Act, coupled with the withdrawals by Executive Order, “locked up” all of the federal lands in the Western States pending further action by Congress or the President, except as otherwise permitted in the discretion of the Secretary of the Interior for the limited purposes specified in § 7.
This was Congress’ understanding of the Taylor Grazing Act in 1958 when it amended the school land indemnity selection statute to permit selection of mineral lands. Both the House and Senate Reports specifically noted and adopted the Department of the Interior‘s assumption “that nothing in this bill is intended to affect the rights or duties of States under other laws’ and, in particular, ‘that no change is intended to be made in section 7 of the Taylor Grazing Act,
...
*Briefs of amici curiae urging affirmance were filed by George Deukmejian, Attorney General of California, N. Gregory Taylor and Jan S. Stevens, Assistant Attorneys General, and Stephen H. Mills, Deputy Attorney General, Robert K. Corbin, Attorney General of Arizona, J. D. MacFarlane, Attorney General of Colorado, John F. North, Special Assistant Attorney General of Montana, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, and William O. Jordan, Special Assistant Attorney General, James A. Redden, Attorney General of Oregon, and Peter S. Herman, Slade Gorton, Attorney General of Washington, and Theodore O. Torve and J. Lawrence Coniff, Jr., Assistant Attorneys General, and John D. Troughton, Attorney General of Wyoming, for the State of California et al.; and by David H. Leroy, Attorney General of Idaho, and W. Hugh O‘Riordan, Deputy Attorney General, for the State of Idaho.
Briefs of amici curiae were filed by Richard C. Cahoon for Justheim Petroleum Co.; and by Stephen G. Boyden and Scott C. Pugsley for the Ute Indian Tribe of the Uintah and Ouray Reservation.
We therefore hold that the 1936 amendment to the
It is so ordered.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.
Since the early days of the Republic, the Federal Government‘s compact with each new State has granted the State land for the support of education and allowed the State to
The Court‘s decision rests on three fundamental misconceptions. First, the Court reasons from the accepted proposition that indemnity lands compensate the States for gaps in the original grants to the mistaken conclusion that the States have no right to lands of equal acreage. Ante, at 507-510. This argument ignores the clear meaning of statutes spanning about two centuries in which Congress specifically adopted an equal acreage principle as the standard for making compensation. Second, the Court believes that the establishment of grazing districts under the
A correct understanding of this case requires careful examination of a labyrinth of compacts and statutes dating back to the early years of our national history. Part I of this opinion reviews the unbroken succession of laws that undercut the Court‘s construction of the school indemnity selection statutes. Part II explains the development of the
I
When the first 13 States formed the Union, each State had sovereign authority over the lands within its borders. These lands provided a tax base for the support of education and other governmental functions. When settlers sought to carve the State of Ohio from the Northwest Territory in 1802, they encountered a different situation. Vast tracts within the boundaries of the proposed State belonged to the Federal Government. Thus, the new State‘s potential revenue base would be restricted severely unless the Federal Government waived its immunity from taxation.1 In order to place Ohio on an equal footing with the original States, Congress enacted a compromise drawn from the Land Ordinance of 17852 and the Northwest Ordinance of 1787.3 The compromise set a pattern followed in the admission of virtually every other State.4 Specific details varied from State to State, but the
basic plan persisted. As consideration for each new State‘s pledge not to tax federal lands, Congress granted the State a fixed proportion of the lands within its borders for the support of public education. E. g., Act of Apr. 30, 1802, § 7, 2 Stat. 175 (Ohio); Act of Jan. 29, 1861, § 3, 12 Stat. 127-128 (Kansas); Act of July 16, 1894, §§ 3, 6, 28 Stat. 108-109 (Utah); see United States v. Morrison, 240 U.S. 192, 201 (1916).5
These agreements were solemn bilateral compacts between each State and the Federal Government. See ante, at 507; United States v. Morrison, supra, at 201-202; Cooper v. Roberts, 18 How. 173, 177-179 (1856). For its part, the Government granted the State specific sections of land within each township laid out by federal survey. The granted sections were specified by number to ensure that the State would receive a random cross section of the public land. Title to the sections vested in the State upon approval of the survey. United States v. Morrison, supra, at 207, 212; Beecher v. Wetherby, 95 U.S. 517 (1877). Should these grants in place prove unavailable, the Federal Government promised to grant the State indemnity in other lands of equal acreage. In return, Congress required the State to memorialize its pledge not to tax federal lands “by ordinance irrevocable without the consent of the United States.” E. g., Act of July 16, 1894, § 3, 28 Stat. 108 (Utah). Congress also imposed upon the State a binding and perpetual obligation to use the granted lands for the support of public education. All revenue from the sale or lease of the school grants was impressed with a
A long line of statutes dating from the early 1800‘s evidences Congress’ consistent respect for the federal obligation to replace unavailable school sections with indemnity lands of equal acreage. See United States v. Morrison, supra, at 201-202. In 1826, the first general indemnity selection statute appropriated additional tracts to compensate the States for lands lost when fractional townships were found not to contain the numbered section originally granted. The statute directed the Secretary of the Treasury to select “out of any unappropriated public land” within the township where the section had been lost the “quantity” of land to which the State was entitled. Act of May 20, 1826, ch. 83, 4 Stat. 179. When private claims against unsurveyed public lands increased as the Nation moved west, Congress also acted to indemnify States for school sections occupied by settlers. The earliest statutes authorized officials in particular States or Territories to select “other lands to an equal amount ... in lieu of [the] sections so occupied....” E. g., Act of Mar. 2, 1853, § 20, 10 Stat. 179 (Washington Territory).6
In 1859, a second statute of general applicability appropriated “other lands of like quantity” to replace school sections pre-empted by prior settlement, “fractional in quantity,” missing from a township, or lost “from any natural cause whatever.” Act of Feb. 26, 1859, ch. 58, 11 Stat. 385. Although the statute incorporated by reference the selection provisions of the 1826 Act, a more particular statute passed on the same day expressly empowered local officials in one western
The general statutes of 1826 and 1859, consolidated and codified as §§ 2275 and 2276 in the Revised Statutes of 1874, underwent extensive revision in 1891. The resulting law appropriated additional land to replace school sections lost because they were mineral in character, included within a federal reservation, or “otherwise disposed of by the United States.” In lieu of unavailable school sections, each State was entitled to such “other lands of equal acreage ... [as] may be selected by said State....” Act of Feb. 28, 1891, ch. 384, 26 Stat. 796. The States could make their indemnity selections from “any unappropriated, surveyed public lands, not mineral in character, within the State....” Id., at 797.
The 1891 revision had at least four effects. First, it reaffirmed the States’ unquestioned right to replace lost school sections with lands of equal acreage. Second, it removed the restriction that had limited indemnity selections to land within the township where the school section was unavailable. Third, it appeared to confirm this Court‘s earlier decision that school grants did not convey mineral lands to the States.7 Fourth, it expressly conformed the general indemnity selection statutes to the mid-19th-century enactments that gave certain States the right to make their own indemnity selections. Even where the earlier statutes gave a State the power of selection, however, it had become accepted practice for the State to submit its selections for the approval of the Secretary of the Interior.8 State Enabling Acts passed in 1889
By the end of the 19th century, the States’ right to select land of equal acreage in lieu of lost school sections had been established for nearly 100 years. The only unsettled question was whether the Secretary of the Interior had discretion to disapprove the selections. In Payne v. New Mexico, 255 U.S. 367 (1921), this Court resolved that question in the States’ favor. New Mexico had selected alternative land in exchange for school sections lying within a national forest. Before the Secretary approved the selection, the grants in place were restored to the public domain. The Secretary found that the restoration of the grants in place defeated the basis for the exchange selection. The Court held, however, that equitable title to properly selected land vested in the State when the selection was filed. If the selection satisfied the requirement of the general school grant statutes, the Secretary had no power to annul the State‘s title. Id., at 370-371.
Three weeks later, the Court made the same point even more emphatically in Wyoming v. United States, 255 U.S. 489 (1921). In that case, the land selected by Wyoming in exchange for a school section lying within a national forest later was withdrawn by the Federal Government “as possible oil land.” Id., at 495. The Court again concluded that equitable title to the chosen land vested in the State on the date the selection was filed. It was not, the Court said, “as if the selection was merely a proposal by the State
In the years after Payne and Wyoming, Congress further expanded the States’ rights to land for the support of public education. A 1927 statute declared that school grants were “to embrace numbered school sections mineral in character....” Act of Jan. 25, 1927, § 1, 44 Stat., pt. 2, p. 1026. A 1958 amendment to the indemnity selection statutes, by then found in their present places as
II
The Utah Enabling Act of 1894 grants to the State four numbered sections within each township for the support of public education. If those sections “have been sold or otherwise disposed of” by the Federal Government, the Act—like other statutes of its kind—directs school grant indemnity lands “to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior....” Act of July 16, 1894, § 6, 28 Stat. 109. In accordance with this direction, Utah has selected 194 tracts of mineral land as indemnity for lost school sections said to be mineral in character. Utah alleges that the tracts selected are unappropriated public land equal in acreage to the unavailable sections. Thus, the tracts appear to satisfy the basic indemnity selection requirements of
The Secretary, however, has refused to determine whether the selections satisfy the indemnity statutes. Instead, he claims that the
The
Section 1 of the Act authorized the Secretary of the Interior “in his discretion, ... to establish grazing districts ... of vacant, unappropriated, and unreserved lands from any part of the public domain ..., which in his opinion are chiefly valuable for grazing and raising forage crops....” Ibid.13 Land noticed for inclusion within a grazing district was withdrawn from “all forms of entry [or] settlement” until hearings could be conducted. Id., at 1270. Congress carefully provided, however, that the Act was not to impede orderly disposition of the public lands. When some States objected
“[n]othing in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands ... except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State....” Id., at 1269.14
The Court simply ignores this highly relevant sequence of events. It even cites the Secretary‘s report on the States’ concern for the plainly erroneous proposition that the original Act made “no provision ... for the States’ indemnity selections from land within grazing districts....” Ante, at 517. Perhaps the Court‘s confusion arises from its assumption that the broad saving provision covers only lands specifically granted, rather than all lands needed for satisfaction of a grant. Ante, at 519, n. 24. This assumption is logically untenable. Lands selected in lieu of deficiencies in a grant cannot be conveyed to the grantee unless they become “part of [the] grant.” 48 Stat. 1269.
The Act contained critically important provisions for land exchanges. Section 8 authorized the Secretary to accept private and state land within a grazing district in exchange for any surveyed public land of no more than “equal value.” Id., at 1272-1273. The section showed special solicitude for the States by directing the Secretary to proceed with state-initiated exchanges “at the earliest practicable date, and to cooperate fully with the State to that end....” Id., at 1273. The Western States, however, objected to the discretionary exchange provisions. The Governor of Wyoming, for example, opposed the Act because he feared that § 8 would impair the State‘s right to exchange school sections isolated inside a federal reservation or a grazing district for other, better situated acreage. In testimony before the Senate Committee, he argued that the Secretary might not allow enough exchanges to permit the removal of state land from inside federally administered areas. The Governor therefore urged that the Act‘s exchange provisions should be mandatory.15 Testimony given by the Executive Secretary of the Utah Land Board expressed the same concerns.16 The State Land Commissioner of Arizona also suggested that the Act would prevent private citizens from exercising their legitimate rights
Five months after the Act went into effect, President Roosevelt issued Executive Order No. 6910 (1934). Invoking his authority under the Pickett Act of 1910,18 the President withdrew all unreserved and unappropriated public lands in 12 Western States “from settlement, location, sale or entry ... pending determination of the most useful purpose to which such land may be put....” The effect of this Pickett Act withdrawal was far-reaching. Although homesteading and other activities continued under existing claims, new entries upon the public domain came to a halt. See 55 I. D. 205 (1935). The withdrawal also forestalled States and private citizens from exercising their exchange, scrip, or indemnity rights to appropriate public land. See State of Arizona, 55 I. D. 249, 253-254 (1935).19
The 1936 enactment significantly amended §§ 7 and 8 of the
location” under the applicable public land laws. The statute directed the Secretary to respond to an application for entry by classifying the subject land, but no lands were to be appropriated “until after the same have been classified and opened to entry....” Ibid.
The amendment to § 8 made mandatory the
III
Two specific provisions of the
A
The Court gives the unqualified exemption in § 1 a construction that is inconsistent with its plain language and the stated purpose of the Act. The Court concedes that the inclusion of numbered school sections within a grazing district is not a federal disposition of the land that can defeat the grants in place. Ante, at 513.24 It holds, however, that the
inclusion of other lands within a grazing district is a federal appropriation that can defeat a State‘s otherwise clear right to replace lost school sections with lands of equal acreage. Ante, at 519. Thus, the Court thinks the
B
Even if I could agree with the Court that § 1 of the
“[i] more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or [ii] more valuable or suitable for any other use than for [grazing], or [iii] proper
for acquisition in satisfaction of any outstanding lieu, exchange or script [sic] rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws....”
The Courts of Appeals have concluded that this section gives the Secretary substantial discretion to conserve the public lands. Thus, the Secretary may reject private applications for land that he finds suitable for more efficient uses. See Bleamaster v. Morton, 448 F.2d 1289 (CA9 1971); Carl v. Udall, 114 U. S. App. D. C. 33, 37-38, 309 F.2d 653, 657-658 (1962). The courts also have upheld administrative determinations that certain land is not proper for private acquisition because the relevant land grant did not convey lands of that character. See Pallin v. United States, 496 F.2d 27, 34-35 (CA9 1974); Finch v. United States, 387 F.2d 13, 15-16 (CA10 1967), cert. denied, 390 U.S. 1012 (1968). But these federal courts agree that § 7 of the
Nothing in this general provision, concerned with the satisfaction of private as well as state claims, suggests that Congress intended to authorize a comparative value standard at odds with the equal acreage principle found in every school grant indemnity statute since the beginning of the 19th century. When a specific statute grants fixed acreages, the Secretary cannot defeat the grant by applying a comparative value test based on the general provisions of § 7. Bronken v. Morton, supra. This rule should apply with special force where the
The Congress that passed the indemnity provision under which Utah has made its selections found that a law permitting the selection of mineral lands as indemnity for other mineral lands of equal acreage “amply protected” the federal interest. H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958). The sponsors of the legislation and the Department of the Interior did not conclude—as the Court does—that such selections would allow the States to secure an unfair advantage. Instead, they agreed that the selection of mineral lands on an equal acreage basis was necessary to guarantee the public schools a “fair cross section of land values.” Id., at 4 (report of the Department of the Interior); 104 Cong. Rec. 11921 (1958) (remarks of Sen. Watkins); see supra, at 527. No later Congress has receded from this view, despite the Secretary‘s invitation to do so. See S. Rep. No. 1213, 89th Cong., 2d Sess., 2, 4 (1966); supra, at 527-528. For nearly 180 years, Congress has adhered to the equal acreage principle embodied in the specific statutes most relevant to this case. The Court has no basis for surmising that a general statute addressed to different issues has given the Secretary authority to adopt an inconsistent position.
Utah has selected land in satisfaction of grants made to support the public education of its citizens. Those grants are part of the bilateral compact under which Utah was admitted to the Union. They guarantee the State a specific quantity of the public lands within its borders. Payne v. New Mexico, 255 U.S. 367 (1921), and Wyoming v. United States, 255 U.S. 489 (1921), require the Secretary of the Interior to approve Utah‘s indemnity selections if they designate tracts equal in acreage to the lands replaced and otherwise satisfy the requirements of
For a decade or longer, however, the Secretary has refused to determine whether Utah‘s selections satisfy §§ 851 and 852. Indeed, he has refused to make any determination at all. Rather, the Secretary has claimed that the
Notes
Ҥ 851. Deficiencies in grants to State by reason of settlements, etc., on designated sections generally
“Where settlements with a view to preemption or homestead have been, or shall hereafter be made, before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the claims of such settlers; and if such sections or either of them have been or shall be granted, reserved, or pledged for the use of schools or colleges in the State in which they lie, other lands of equal acreage are hereby appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State, in lieu of such as may be thus taken by preemption or homestead settlers. And other lands of equal acreage are also hereby appropriated and granted and may be selected, in accordance with the provisions of section 852 of this title, by said State where sections sixteen or thirty-six are, before title could pass to the State, included within any Indian, military, or other reservation, or are, before title could pass to the State, otherwise disposed of by the United States: Provided, That the selection of any lands under this section in lieu of sections granted or reserved to a State shall be a waiver by the State of its right to the granted or reserved sections. And other lands of equal acreage are also appropriated and granted, and may be selected, in accordance with the provisions of section 852 of this title, by said State to compensate deficiencies for school purposes, where sections sixteen or thirty-six are fractional in quantity, or where one or both are wanting by reason of the township being fractional, or from any natural cause whatever. And it shall be the duty of the Secretary of the Interior, without awaiting the extension of the public surveys, to ascertain and determine, by protraction or otherwise, the number of townships that will be included within such Indian, military, or other reservations, and thereupon the State shall be entitled to select indemnity lands to the extent of section for section in lieu of sections therein which have been or shall be granted, reserved, or pledged; but such selections may not be made within the boundaries of said reservation: Provided, however, That nothing in this section contained shall prevent any State from awaiting the extinguishment of any such military, Indian, or other reservation and the restoration of the lands therein embraced to the public domain and then taking the sections sixteen and thirty-six in place therein.”
Ҥ 852. Selections to supply deficiencies of school lands
“(a) Restrictions
“The lands appropriated by section 851 of this title shall be selected from any unappropriated, surveyed or unsurveyed public lands within the State where such losses or deficiencies occur subject to the following restrictions:
“(1) No lands mineral in character may be selected by a State except to the extent that the selection is being made as indemnity for mineral lands lost to the State because of appropriation before title could pass to the State;
“(2) No lands on a known geologic structure of a producing oil or gas field may be selected except to the extent that the selection is being made as indemnity for lands on such a structure lost to the State because of appropriation before title could pass to the State; and
“(3) Land subject to a mineral lease or permit may be selected if none of the land subject to that lease or permit is in a producing or producible status, subject, however, to the restrictions and conditions of the preceding and following paragraphs of this subsection.”
“. . . in his discretion, to examine and classify any lands within such grazing districts which are more valuable and suitable for the production of agricultural crops than native grasses and forage plants, and to open such lands to homestead entry in tracts not exceeding three hundred and twenty acres in area. Such lands shall not be subject to settlement or occupation as homesteads until after same have been classified and opened to entry after notice to the permittee by the Secretary of the Interior, and the lands shall remain a part of the grazing district until patents are issued therefor, the homesteader to be, after his entry is allowed, entitled to the possession and use thereof: Provided, That upon the application of any person qualified to make homestead entry under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract not exceeding three hundred and twenty acres in any grazing district to be classified, and such application shall entitle the applicant to a preference right to enter such lands when opened to entry as herein provided.”
“WHEREAS, the act of June 28, 1934 (ch. 865, 48 Stat. 1269), provides, among other things, for the prevention of injury to the public grazing lands by overgrazing and soil deterioration; provides for the orderly use, improvement and development of such lands; and provides for the stabilization of the livestock industry dependent upon the public range; and
“WHEREAS, in furtherance of its purposes, said act provides for the creation of grazing districts to include an aggregate area of not more than eighty million acres of vacant, unreserved and unappropriated lands from any part of the public domain of the United States; provides for the exchange of State owned and privately owned lands for unreserved, surveyed public lands of the United States; provides for the sale of isolated or disconnected tracts of the public domain; and provides for the leasing for grazing purposes of isolated or disconnected tracts of vacant, unreserved and unappropriated lands of the public domain; and
“WHEREAS, said act provides that the President of the United States may order that unappropriated public lands be placed under national forest administration, if, in his opinion, the land be best adapted thereto; and
“WHEREAS, said act provides for the use of public land for the conservation or propagation of wild life; and
“WHEREAS, I find and declare that it is necessary to classify all of the vacant, unreserved and unappropriated lands of the public domain within certain States for the purpose of effective administration of the provisions of said act;
“NOW, THEREFORE, by virtue of and pursuant to the authority vested in me by the act of June 25, 1910 (ch. 421, 36 Stat. 847), as amended by the act of August 24, 1912 (ch. 369, 37 Stat. 497), and subject to the conditions therein expressed, it is ordered that all of the vacant, unreserved, and unappropriated public land in the States of Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, and Wyoming be, and it hereby is, temporarily withdrawn from settlement, location, sale or entry, and reserved for classification, and pending determination of the most useful purpose to which such land may be put in consideration of the provisions of said act of June 28, 1934, and for conservation and development of natural resources.
“The withdrawal hereby effected is subject to existing valid rights.
“This order shall continue in full force and effect unless and until revoked by the President or by act of Congress.”
This Court later held that a Pickett Act withdrawal is a “previous disposition” of land by the Federal Government that prevents title to numbered school sections from vesting in the States upon completion of a survey. United States v. Wyoming, 331 U.S. 440, 443-444, 454 (1947). Executive Order No. 7599, 2 Fed. Reg. 633 (1937), however, expressly exempted numbered school sections from the operation of Executive Order No. 6910.Although the description of the withdrawal power does not specifically mention state indemnity selections, the power as described is so broad and general that it seems clear that had such an exception been intended, Congress would have made it express.
In Wyoming v. United States, 255 U. S. 489, this Court plainly indicated that an executive withdrawal of federal land under the Pickett Act would defeat a later attempt to select any part of such land as indemnity for lost school sections. The holding in the case was that an indemnity selection‘s validity should be tested as of the time made, and that a subsequent Pickett Act withdrawal could not defeat an earlier selection by the State that was otherwise valid. If a Pickett Act withdrawal could not preclude a school land indemnity selection, there would have been no need for the Court to reach the timeliness issue.
The Pickett Act was repealed by the
In January 1936, President Roosevelt issued Executive Order No. 7274, which excluded from the operation of Executive Order No. 6910 lands which were then or which were thereafter placed within federal grazing districts. Once land was placed within a grazing district, the purpose of Order No. 6910 was, of course, satisfied.
See Hearings on S. 2539 before the Senate Committee on Public Lands and Surveys, 74th Cong., 1st Sess., 1-2 (1935). See also S. Rep. No. 1005, 74th Cong., 1st Sess., 2 (1935).“The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964), or within a grazing district, which are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this subchapter or proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: Provided, That locations and entries under the mining laws including the Act of February 25, 1920, as amended, may be made upon such withdrawn and reserved areas without regard to classification and without restrictions or limitation by any provision of this subchapter. Where such lands are located within grazing districts reasonable notice shall be given by the Secretary of the Interior to any grazing permittee of such lands. The applicant, after his entry, selection, or location is allowed, shall be entitled to the possession and use of such lands: Provided, That upon the application of any applicant qualified to make entry, selection, or location, under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided.”
The Court scarcely mentions Executive Order No. 7274. It therefore fails to recognize that the land within a grazing district is “locked up” only to the extent that the“[T]oo much thought in all of the hearings on the act was given to the grazing features, and very little attention was given to the mechanics and as to how it would affect all of the public-land laws that we have been functioning under. The result is that we are now tied up in just one general withdrawal of all public lands, and everything in the public-land structure and in all of the public-land laws and the contractual relations between the Government—and I refer to existing exchange acts and everything—they have all ceased to function.
“There is no land that can be acquired, there is no land that can be filed on for any purpose.
“I think all of you Senators will agree with me that there are other uses of the remaining public lands besides grazing. I term it generally to distinguish it from grazing, the use for industrial purposes; in other words, in Arizona a great many of our town sites or smelter sites and the like; those which have everything to do with industry, the title usually has been acquired by exchange selection, scrip, State selections. . . .
“When this bill was before Congress, I wrote our Senators and a great many of us did from Arizona, that we were all in sympathy with the grazing use, but that our fear was that they would get a little too enthusiastic about it and withdraw everything. In other words, I forecasted what has resulted, and I think in some measure that I was responsible for the 80,000,000-acre limitation that was put in. You remember that, Senator Hayden.
“That was just so that they would have to take the land that was suitable and not include everything. But then there was immediately, when it commenced to be administered, a general withdrawal of all remaining public lands.” Hearing on S. 2539 before the Senate Committee on Public Lands and Surveys, 74th Cong., 1st Sess., 3 (1935).
That it was understood that no land was available for the States’ school land indemnity selections was confirmed by Senator Hayden at the same hearings. In response to Mr. Page‘s observation that there was no land open to entry in Arizona for exercise of railroad-grant exchange rights, the Senator observed: “The same thing would be true of a grant made to a State for university purposes or an indemnity selection.” Id., at 15.
See S. Rep. No. 2371, 74th Cong., 2d Sess., 2 (1936). Mandatory exchanges were critically important to the Western States. See supra, at 531-532.