1. INTRODUCTION
Plaintiffs filed a Motion for Extension of Lease Suspension and Preliminary Injunction on April 1,1981, supported by a Memorandum of Points and Authorities filed April 16, 1981. A hearing was held May 8, 1981, at which the court heard testimony, received exhibits, and heard oral argument. The motion seeks a continuation of an order previously issued on March 23, 1981, which had the effect of suspending the expiration of certain oil and gas mining leases of Indian tribal land that would otherwise have expired on or about March 23, 1981. The parties have stipulated that the March 23 order be extended until the court shall have ruled on plaintiffs’ motion for an extension. Pursuant to the stipulation the court so ordered, in an order filed April 16, 1981. Plaintiffs had previously tendered communitization agreements to the Indian defendants and to defendant Secretary of the Interior, through his representative for the Uintah and Ouray Agency of the Bureau of Indian Affairs which, had they been approved, would have effectively continued the leases for the duration of the period during which oil was produced in paying quantities. Plaintiffs assert that defendants had a duty to accept and approve the communitization agreements and that their failure to do so gives rise to an actionable claim.
The amended complaint asserts that the court has jurisdiction under 28 U.S.C. §§ 1331 and 1361. Although subject matter jurisdiction with respect to the Indian defendants had not been pled with particularity, as required by Rule 8(a)(1) of the Federal Rules of Civil Procedure, the court believes that the controversy may involve a federal question sufficient to satisfy the jurisdictional requirements of section 1331. At least, for the purposes of this motion and considering the likelihood that plaintiffs will amend their complaint to plead jurisdiction with greater specificity, the court will give plaintiffs the benefit of the doubt.
In seeking a preliminary injunction plaintiffs have the burden of establishing (1) substantial likelihood that they will eventu- • ally prevail on the merits; (2) a showing that they will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to plaintiffs outweighs whatever damage the proposed injunction may cause defendants; and (4) a showing that the injunction, if issued, would not be adverse to the public interest.
Lundgrin v. Claytor,
The tribal defendants in this case are. the Ute Indian Tribe, a federal corporation, and individual members of the Ute Business Committee, referred to in the amended complaint as the “Ute Tribal Council.” The evidence shows that, pursuant to section 17 of the Indian Reorganization Act, 25 U.S.C. § 477, the Ute Indian Tribe of the Uintah and Ouray Reservation chartered the de *524 fendant corporation on July 6, 1938. The tribe had previously been organized, having adopted a constitution and bylaws, pursuant to section 16 of the Act. 25 U.S.C. § 476. The corporation was chartered under the corporate name “The Ute Indian Tribe,” and was formed “to further the economic development of the Ute Indian Tribe of the Uintah and Ouray Reservation in Utah.” Corporate Charter, § 1. Section 5 of the charter enumerates certain corporate powers to be possessed by the corporation. Included in the enumeration is the following provision:
5. The Tribe, subject to any restrictions contained in the Constitution and Bylaws of the said Tribe, shall have the following corporate powers, in addition to all powers already conferred or guaranteed by the tribal constitution and by-laws:
(i) To sue and be sued in courts of competent jurisdiction within the United States; but the grant or exercise of such power to sue and to be sued shall not be deemed a consent by the said Tribe or by the United States to the levy of any judgment, lien, or attachment upon the property of the Tribe other than income or chattels specially pledged or assigned.
The present controversy involves thirty oi] and gas leases, entered into in 1971, of property located on the Uintah and Ouray Indian Reservation. The complaint alleges that the original lessees assigned their interests to plaintiff Bow Valley Petroleum, Inc., which in turn entered into a farm-out agreement with plaintiff Kenai Oil and Gas, Inc. Each of the leases contained the following provision:
Unit Operation. — The parties hereto agree to subscribe to and abide by any agreement for the cooperative or unit development of the field or area, affecting the leased lands, or any pool thereof, if and when collectively adopted by a majority operating interest therein and approved by the Secretary of the Interior, during the period of supervision.
Plaintiffs assert that defendants were bound by this provision to enter into the proposed communitization agreements. They are requesting that the court use its equity power to order that defendants enter into the agreements, including any necessary approval of the Secretary of the Interi- or.
2. WHO ARE THE LESSORS?
The determination as to who the lessors were is relevant to the question of immunity, raised as a defense by the Indian defendants. The unitization provision contained in all the leases by its terms binds only the parties to the lease contracts. There is no dispute that plaintiffs are parties to the contracts, as successors in interest to the original lessees. Who the lessors were, however, is not so certain. The court is powerless to order any but the lessors, their assigns, or successors, to comply with the provisions of the contract.
The thirty leases are attached as exhibits to the amended complaint, Exhibits A through DD. Each of the leases was executed on a printed form on which the blanks were filled in. Two forms were used, each apparently originating with the Bureau of Indian Affairs of the Department of the Interior, Form 5-154h (Jan. 1962), and Form 5-157 (July 1964). Form 5-154h was used where the lessor was an allottee of the tribal lands to be leased. Lease 2685 (Exhibit B) is typical of the twenty-three leases executed on Form 5— 154h (the italicized portions represent those parts of the lease in which blanks were filled in on the printed form):
THIS INDENTURE OF LEASE, made and entered into in quintuplícate this 1st day of March, 1971, by and between Tommy Thompson, a widower of Bandlett, State of Utah, allottee No. 237, U&W, of the Ute Tribe of Indians, lessor, and Chevron Oil Company, a California corporation, P. O. Box 599 of Denver, State of Colorado 80201, lessee [.]
Form 5-154h was used in twenty-three leases, numbered respectively: 2685 (Exhibit B), 2686 (Exhibit C), 2704 (Exhibit D), 2750
*525
(Exhibit E), 2807 (Exhibit F), 2808 (Exhibit G), 2668 (Exhibit H), 2669 (Exhibit I), 2758 (Exhibit J), 2759 (Exhibit K), 2692 (Exhibit L), 2745 (Exhibit M), 2670 (Exhibit N), 2693 (Exhibit P), 2761 (Exhibit R), 2746 (Exhibit V), 2694 (Exhibit W), 2695 (Exhibit X), 2674 (Exhibit Y), 2675 (Exhibit Z), 2673 (Exhibit AA), 2755 (Exhibit BB), 2756 (Exhibit CC). In all of these leases the lessors are individual members of the tribe. Defendant Ute Indian Tribe, the tribal corporation, is not named as a party, nor do any of the above-listed leases contain the signature of anyone authorized to act in its behalf. The unitization provision of the lease, paragraph 11 of those leases executed on Form 5-154h, provides that the parties to the lease will be bound to enter into an adopted and approved communitization agreement. It is an elementary principle of contract law that a nonparty to a contract is not bound thereby. Since, therefore, the corporation is not a party to any of these leases, it is not bound thereby. The amended complaint must fail on those claims asserted against the tribal corporation with regard to those leases in which it is not a party. The court acknowledges the possibility, however, that plaintiffs may amend the complaint to include these individual lessors. The doctrine of tribal sovereign immunity does not immunize individual members of a tribe.
Puyallup Tribe v. Washington Game Department,
The tribal corporation is mentioned by name in only seven of the leases. Defendants claim that these leases were entered into by the Tribal Business Committee in behalf of the tribal organization and not the tribal corporation. The Tribal Business Committee is the governing body of the Ute Indian Tribe of the Uintah and Ouray Reservation, organized pursuant to section 16 of the Indian Reorganization Act. Constitution and By-laws of the Ute Indian Tribe of the Uintah and Ouray Reservation, art. Ill, § 1. Article VIII, § 3, of the Constitution and By-laws specifically gives to the Tribal Business Committee the power to lease tribal lands, with the approval of the Secretary of the Interior, and for such periods of time as are permitted by law. The Tribal Business Committee is also granted certain powers by the Corporate Charter of the Ute Indian Tribe of the Uintah and Ouray Reservation, including the power “[t]o purchase, take by gift, bequest, or otherwise, own, hold, manage, operate, and dispose of property of every description, real and personal,” subject to certain enumerated limitations. Corporate Charter § 5(b). The Tribal Business Committee thus has power to lease land to the extent that an interest in land has been conveyed to the corporation. One of the questions before the court is whether the Tribal Business Committee executed these seven leases acting in behalf of the section 16 tribal organization or the section 17 tribal corporation.
Form 5-157 was used in the seven leases that mention the tribal corporation, numbered respectively: 2667 (Exhibit A), 2717 (Exhibit 0), 2658 (Exhibit Q), 3101 (Exhibit S), 2661 (Exhibit T), 2660 (Exhibit U), and 2662 (Exhibit DD). Though the substantive provisions of these seven leases are essentially the same as those leases that used Form 5-154h, there is a significant difference with respect to the first part of the lease in which the parties are named. Lease 2717 (Exhibit 0) is typical of all but two, 2660 and 2667, of the seven leases for which Form 5-157 was used (the italicized portions again represent those parts of the lease in which blanks were filled in on the printed form):
THIS INDENTURE OF LEASE made and entered into in quintuplícate, this 27 th day of January, 1972, by and between The Ute Indian Tribe, a Federal Corporation chartered under the Act of June 18, 1934 (46 [48] Stat. 984) and the Ute Distribution Corporation, a Utah Corporation of Fort Duchesne, State of Utah, for and on behalf of the Ute Tribe of Indians, lessor, and The Ute Distribution Corporation, designated herein as Lessor, and Shell Oil Company, a Delaware Corporation, 1700 Broadway of Denver, State of Colorado 80202, lessee[.j
*526 The above-quoted lease provision seems to indicate that the Ute Indian Tribe, a federal corporation, and the Ute Distribution Corporation were acting as agents “for and on behalf of” the Ute Tribe of Indians and the Ute Distribution Corporation, both of which are designated as lessors. The Ute Distribution Corporation was apparently acting in its own behalf as both agent and lessor.
Leases 2667 (Exhibit A) and 2660 (Exhibit U) differ from the other five in that they mention individual Indians as well as the two corporations. For example, lease 2667 indicates that it was entered into between
Chauncey Cuch, a widower, during his lifetime or until April 13, 1975, whichever is the shorter period of time, and thereafter the Ute Indian Tribe, a Federal corporation chartered under the Act of 6-18-34, 48 Stat. 984, and the Ute Distribution Corporation, a Utah corporation and the Ute Indian Tribe, a Federal corporation, and The Ute Distribution corporation, a Utah corporation of Fort Duchesne, State of Utah, for and on behalf of the Chauncey Cuch, L. E. and the Ute Tribe of Indians, lessor, and the Ute Distribution Corporation, on their own behalf and as remainderman, designated herein as lessors, and Chevron Oil Company, a California corporation, P. O. Box 599 of Denver, State of Colorado 80201, lessee [.]
Lease 2660 (Exhibit U) is identical to lease 2667, except that the names of the individual Indians are different. These two leases, 2660 and 2667, are somewhat confusing. The words “for and on behalf of” in lease 2660, for example, seem to indicate an intent that Chauncey Cuch and, after April 13, 1975, or his death, the two corporations act as agents for the lessors Chauncey Cuch, the Ute Tribe of Indians, and the Ute Distribution Corporation “on their own behalf and as remaindermen.” The use of the word “remaindermen” is difficult to understand. It is possible that it is referring to the Ute Tribe of Indians and the Ute Distribution Corporation as successors in interest to Chauncey Cuch as of his death or April 13, 1975, whichever occurred first. Under that interpretation it may be inferred that the language in the lease before the words “for and on behalf of” was intended as a designation of the lessors rather than as a designation of the agents of the lessors. It is possible, therefore, with respect to leases 2667 and 2660, that it was intended that the corporation Ute Indian Tribe be a lessor. Confusion results, however, under this interpretation because the tribal corporation is not specifically mentioned as a lessor in that part of the lease following the words “for and on behalf of.” Only Cuch, the Ute Distribution Corporation, and the Ute Tribe of Indians are mentioned as lessors. Plaintiffs have argued that the words “
Ute
Tribe of Indians” (the italics indicate a filled-in blank on the printed form) refer to the section 17 tribal corporation rather than to the section 16 tribal organization. The court considers that the fact that the lease was written on a preprinted form with the line blank immediately before the printed words “Tribe of Indians” argues against that interpretation. Also relevant is the fact that the tribal corporation is referred to with particular detail at the first part of the lease. Had it been intended that
“Ute
Tribe of Indians” refer to the corporation the court believes that a greater effort would have been made to refer to it with the same specificity. But if the lease is interpreted as designating the tribal corporation as a lessor rather than as an agent then the only consistent interpretation of the words
“Ute
Tribe of Indians” is that they refer not to the tribal organization but to the tribal corporation, as plaintiffs argue. If, in leases 2667 and 2660, the words
“Ute
Tribe of Indians” refer to the section 17 tribal corporation and not to the section 16 tribal organization, then it is also possible that, in leases 2717, 2658, 3101, 2661, and 2662, the same words also refer to the corporation. Utah courts follow the general rule that where two or more instruments are executed contemporaneously, or at different times in the course of the same transaction, and concern the same subject matter, they will be read and construed
*527
together to determine the respective rights and interests of the parties.
Bullfrog Marina, Inc. v. Lentz,
Of additional significance to the meaning of the seven leases are the portions of the leases that contain the signatures of those involved with the execution. All seven leases were signed by the Chairman of the Tribal Business Committee. Each lease indicates that the Chairman of the Business Committee was signing in behalf of the Ute Indian Tribe, the tribal corporation. This is evidenced more clearly by the notarization portions of the seven leases. The notarization portion of lease 2667, signed by notary Lionel C. Jensen, is typical of all seven leases:
On the 2nd day of March, 1971, personally appeared before me FRANCIS WYASKET and MILLICENT M. NATCHEES who being by me duly sworn (or affirmed) did say that they are the Chairman and Secretary, UINTAH AND OURAY TRIBAL BUSINESS COMMITTEE of the Ute Indian Tribe, and that said instrument was signed in behalf of said corporation by authority of its bylaws. .. resolution of its Board of Directors, and said FRANCIS WYASKET and MILLICENT M. NATCHEES acknowledged to me that said corporation executed the same.
The language of the notarization leaves no doubt that the signature of the Chairman of the Business Committee on each of the seven leases was on behalf of the tribal corporation. It further indicates that the lease instrument was executed by the corporation. It is not clear, however, whether the corporation was executing the lease as agent or as lessor.
The tribal defendants assert that the tribal corporation could not have leased the property because there is no evidence that the property was ever transferred or conveyed to the corporation. As noted earlier the Tribal Business Committee was given power in the corporate charter to own and manage interests in real property. That the corporation could not lease what it did not own is implicit in the charter.
See Parker Drilling Co. v. Metlakatla Indian Community,
After careful examination of the lease documents and of the evidence presented at the hearing the court is of the opinion that, without more, it is unable to determine at this time whether the tribal organization or the tribal corporation was the lessor of the property leased in the seven leases. Without having determined what would be the likely resolution of the lessor issue at a trial on the merits the court will proceed to *528 discuss the immunity issue, considering both possibilities.
3. SOVEREIGN IMMUNITY
a.
The tribal corporation as lessor
—The significance of the possibility that the tribal corporation was one of the lessors lies in the fact that the corporate charter contained a “sue and be sued” clause. The effect of this would be to waive any immunity to which the corporation might otherwise have been entitled.
See Fontelle v. Omaha Tribe of Nebraska,
If the tribal corporation was not a lessor but only an agent for the lessors, then, as a matter of law, the corporation was not a party to the contract. Restatement (Second) of Agency § 320 states:
Unless otherwise agreed, a person making or purporting to make a contract with another as agent for a disclosed principal does not become a party to the contract.
See Seigworth v. State,
The possible applicability of the “sue and be sued” clause merits an additional comment respecting jurisdiction. The clause does not of itself act as a grant of federal jurisdiction. It acts only as a waiver of immunity. Federal courts are courts of limited jurisdiction, and in order for this court to take jurisdiction plaintiffs would have to demonstrate that an independent basis of jurisdiction existed.
See Pambrun v. Blackfeet Tribe,
b.
The tribal organization as lessor
—The court observes that the tribal organization, officially known as the Ute Indian Tribe of the Uintah and Ouray Reservation, is not named as a defendant here. Only the tribal corporation is so named. If the tribal organization were determined to be the lessor of the seven leases then it would need to be joined to the suit as an indispensible party, under Rule 19, Federal Rules of Civil Procedure. The question here is thus whether tribal sovereign immunity would bar the Tribe’s joinder as a party defendant.
See Tewa Tesuque
v.
Morton,
Whether the tribal organization is protected by immunity is a significant question. The tribal defendants have moved to dismiss the action based on an asserted immunity from suit in this type of action. They place heavy reliance on the recent Supreme Court decision in
Santa Clara Pueblo
v.
Martinez,
This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress. But “without congressional authorization,” the “Indian Nations are exempt from suit.” United States v. United States Fidelity & Guaranty Co., [309 U.S. 506 , at 512,60 S.Ct. 653 , at 656,84 L.Ed. 894 ],
Id.
The Court concluded that the only action against an Indian tribe specifically allowed by Congress was for federal habeas corpus, under 25 U.S.C. § 1303. The Indian Civil Rights Act did not, on its face, subject tribes to the jurisdiction of federal courts in civil actions for injunctive or declaratory relief.
Id.
at 59,
Plaintiffs’ response to the tribal defendants’ claim of immunity focuses, in part, on the court of appeals’ decision in
Dry Creek Lodge, Inc.
v.
Arapahoe and Shoshone Tribes,
By the decision in Santa Clara the tribal members seeking injunctive relief under the Indian Civil Rights Act were in substance directed to the remedies available to them in their own tribal courts and from the officials they had elected. Much emphasis was placed in the opinion on the availability of tribal courts and, of course, on the intratribal nature of the problem sought to be resolved. With the reliance on the internal relief available the Court in Santa Clara places the limitations on the Indian Civil Rights Act as a source of a remedy. But in the absence of such other relief or remedy the reason for the limitations disappears.
The reason for the limitations and the references to tribal immunity also disappear when the issue relates to a matter outside of internal tribal affairs and when it concerns an issue with a non-Indian.
It is obvious that the plaintiffs in this appeal have no remedy within the tribal machinery nor with the tribal officials in whose election they cannot participate. The record demonstrates that plaintiffs sought a forum within the Tribes to consider the issue. They sought a state remedy and sought a remedy in the federal courts. The limitations and restrictions present in Santa Clara should not be applied. There has to be a forum where the dispute can be settled.
Plaintiffs’ reliance on
Dry Creek Lodge II
is misplaced. The issue in that case, as in
Santa Clara,
was whether the Indian Civil Rights Act afforded a remedy in federal court to one who alleges a violation of his rights thereunder. The general
*530
rule prior to the Act was that an Indian tribe could not be sued without its consent.
United States v. United States Fidelity & Guaranty Co.,
Even if
Dry Creek Lodge II
is read as not being limited to cases under the Indian Civil Rights Act, but as allowing a federal district court to take jurisdiction, under certain conditions, over a claim in contract against the tribe, the court is still of the opinion that plaintiffs’ claims are barred for having failed to meet those conditions. The opinion in
Dry Creek Lodge II
seems to say, in essence, that where no tribal remedy is available a plaintiff may have access to a federal forum. The rule prior to
Santa Clara
was similar, requiring that a plaintiff exhaust tribal remedies before bringing a federal action under the Indian Civil Rights Act.
See McCurdy v. Steele,
Plaintiffs assert that recourse to the Ute tribal courts would be futile, and that the requirement that they exhaust tribal remedies is thus satisfied. They cite the provisions of the Law and Order Code for the Ute Indian Tribe of the Uintah and Ouray Reservation to show that it would be impossible for them to obtain a fair hearing of their complaint in the tribal court. These assertions are not well-taken, however. This is exactly the kind of case contemplated by the Supreme Court when it stated, in
Santa Clara:
“Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. .. . Nonjudicial tribal institutions have also been recognized as competent law-applying bodies.”
c.
The claim against the members of the Tribal Business Committee
— Plaintiffs have asserted claims against the members of the Business Committee as individuals. The defendant Committee members have moved to dismiss, asserting that they are protected from suit by tribal sovereign immunity. Plaintiffs respond by arguing that the Committee members are not shielded by the tribe’s immunity, citing the statement in
Puyallup Tribe v. Washington Game Department,
The court is of the opinion that the claims against the members of the Business Committee are essentially against the tribe itself and are thus barred from this court’s jurisdiction by the tribe’s sovereign immunity. This is not a case appropriate for the application of the
Ex parte Young
doctrine.
Puyallup
is similarly inapplicable. The issue there dealt with the amendability to suit of individual tribal members. The issue in the present case is whether the court has jurisdiction to grant an injunction ordering the members of the Business Committee to sign the communitization agreements — something the court would be powerless to order the tribe to do because of the immunity doctrine. Tribal immunity may not be evaded by suing tribal officers, as plaintiffs have done in this suit.
Seneca Constitutional Rights Organization v. George,
4. DISCRETION
The court recognizes that to this point there has been little resolution of some of the important issues raised in this motion. The court confesses its inability, without further evidence, to determine whether the tribal organization or the tribal corporation *532 was the lessor of the seven leases involving nonallotted tribal lands. If the corporation was the lessor, then the “sue and be sued” clause may allow the court to take jurisdiction without hindrance from tribal immunity. If the Tribe was the lessor, then the court could only take jurisdiction if an attempt to obtain a tribal remedy demonstrated that none existed. The court does not see this as a viable possibility. In twenty-thr,ee of the leases, as noted above, the lessors were individual Indian allottees. As individuals, they would not be entitled to the protection of tribal immunity, in the event that they were joined to the suit. Plaintiffs have also stated claims against the Department of the Interior, the Secretary of the Interior, the Bureau of Indian Affairs, and other government officials. The possibility thus exists that the court may have jurisdiction over claims against the lessors of the twenty-three allottee leases, the tribal corporation, and the various government agencies or officers named as defendants.
Both the government and Indian defendants have asserted that even if jurisdiction over these defendants is not barred by tribal immunity no likelihood of success on the merits is apparent because the Secretary of Interior properly exercised his discretion in refusing to approve the communitization agreements. Approval of a communitization agreement, such as is in issue in this case, is within the discretion of the Secretary. 25 U.S.C. § 396d states:
All operations under any oil, gas, or other mineral lease issued pursuant to the terms of any act affecting restricted Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the Interior. In the discretion of the said Secretary, any lease for oil or gas issued under the provisions of sections 396a-396g of this title shall be made subject to the terms of any reasonable cooperative unit or other plan approved or prescribed by said Secretary prior or subsequent to the issuance of any such lease which involves the development or production of oil or gas from land covered by such lease.
Regulations promulgated at 25 C.F.R. § 171.21(b) (1980) require that the Secretary’s approval be given of each such cooperative agreement:
All such leases shall be subject to any cooperative or unit development plan affecting the leased lands that may be required by the Secretary of the Interior, but no lease shall be included in any cooperative or unit plan without prior approval of the Secretary of the Interior and consent of the Indian tribe affected.
Each of the leases similarly provides as follows:
Unit Operation. — The parties hereto agree to subscribe to and abide by any agreement for the cooperative or unit development of the field or area, affecting the leased lands, or any pool thereof, if and when collectively adopted by a majority operating interest therein and approved by the Secretary of the Interior, during the period of supervision.
Plaintiffs urge that the above provisions do not vest the Secretary with discretion to reject a communitization agreement that has been approved already by the Indians, except as necessary to protect tribal natural resources. The evidence presented at the hearing, particularly the testimony of defendant L. W. Collier, Jr., the Superintendent of the Uintah and Ouray Agency of the Bureau of Indian Affairs, indicated that the primary reason he rejected the proposed communitization agreements was that it was not in the best economic interest of the tribe. He felt that if the leases were allowed to lapse the Indian lessors would be able to re-lease the land to obtain a more favorable royalty rate and bonuses. The Secretary’s responsibility to protect the interests of the Indians does not, plaintiffs claim, include within its ambit the discretion to refuse to approve a communitization agreement that may be uneconomical. They argue that the Secretary’s discretion extends only to matters of conservation and protection of natural resources.
The government defendants, on the other hand, argue that the discretion vested in *533 the Secretary is so broad that there are essentially no parameters governing its exercise and that the court thus has no jurisdiction even to review the Secretary’s refusal to approve the agreements. The court agrees with the government’s position. Not only was there no abuse of discretion on the part of the Secretary, but it is questionable whether the court has jurisdiction to review the exercise thereof.
a.
Jurisdiction
— The language of the statute and regulation cited above do vest the Secretary with very broad power to approve or deny the communitization agreements. The judicial review provisions of the Administrative Procedure Act do not apply where “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). In
Citizens to Preserve Overton Park, Inc.
v.
Volpe,
[T]he test in Overton Park of when a reviewing court lacks jurisdiction due to the provisions of § 701(a)(2), is not whether a statute viewed in the abstract lacks law to be applied, but rather, whether “in a given case” there is no law to be applied. When a court is asked to review agency action in instances where considerable discretion is committed by statute to an official, the court lacks jurisdiction due to the provisions of § 701(a)(2) only when the agency action of which plaintiff complains fails to raise a legal issue which can be reviewed by the court by reference to statutory standards and legislative intent. Where a statute grants broad discretion to an administrative official, absent some action clearly contradictory to a statutory provision of legislative intent ... a plaintiff challenging an exercise of that discretion may find it an all but insurmountable task to be able to bring his case within this standard, but unless he does so § 701(a)(2) deprives the courts of jurisdiction to entertain his case.
Id.
at 470 (footnote and citation omitted).
See Arizona Power Authority v. Morton,
The Court of Appeals for the Tenth Circuit has emphasized the narrowness of section 701(a)(2).
Sabin v. Butz,
b. The United States as trustee —Because plaintiffs’ entire case seems to hinge on their assertion that, as a matter of law, the Secretary had a duty to approve the proposed eommunitization agreements the court feels compelled to address that argument further. The broad discretion vested in the Secretary to approve or disapprove the eommunitization agreements is a function of the fiduciary responsibilities vested in the United States as trustee of Indian lands and of the Indians themselves. Defendants have stated accurately that the relationship between the government and an Indian tribe is a trust relationship established for the protection of the Indians. Chambers & Price, “Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands,” 26 Stanford L.Rev. 1061 (1974), provides a succinct history of the legal relations between Indian tribes and the government:
Reservation land is, generally held in fee by the United States in trust for the tribe or individual Indian allottees. The origins of this trust title are somewhat obscure. We know of no treaty which states that tribal lands shall be held in trust; however, in interpreting early federal treaties, the Supreme Court concluded that they establish a relationship between the United States and Indian tribes “perhaps unlike that of any other two people in existence” and that the tribe’s “relation to the United States resembles that of a ward to his guardian.” Cherokee Nation v. Georgia,30 U.S. (5 Pet.) 1 , 16-17 [8 L.Ed. 25 ] (1831). By the end of the 19th century, the Court was more definite; in United States v. Kagama,118 U.S. 375 , 383-84 [6 S.Ct. 1109 , 1113-1114,30 L.Ed. 228 ] (1886), it observed: “These Indian tribes are the wards of the nation. They are communities dependent on the United States .... From their very weakness and helplessness . .. there arises the duty of protection and with it the power.” Subsequent cases have held that the federal government in its management of Indian lands and other trust property (such as tribal funds) owes duties of the “highest responsibility and trust” and is bound to adhere to “the most exacting fiduciary standards.” Seminole Nation v. United States,316 U.S. 286 , 297 [62 S.Ct. 1049 , 1054,86 L.Ed. 1480 ] (1942); see United States v. Mason,412 U.S. 391 , 398 [93 S.Ct. 2202 , 2207,37 L.Ed.2d 22 ] (1973). The Court has held that the federal government may not “give the tribal lands to others, or . . . appropriate them to its own purposes” without violating the terms of its guardianship. United States v. Creek Nation,295 U.S. 103 , 109-10 [55 S.Ct. 681 , 684,79 L.Ed. 1331 ] (1935); Lane v. Pueblo of Santa Rosa,249 U.S. 110 , 113 [39 S.Ct. 185 , 186,63 L.Ed. 504 ] (1919).
With respect to allotted lands, the concept of trust title is directly traceable to the General Allotment Act which specifically provides that the United States shall hold the land “in trust for the sole use and benefit of the Indian to whom such allotment shall have been made.” 25 U.S.C. § 348 (1970).
Id.
at 1061 n.l.
See Sunderland v. United States,
That the Secretary of the Interior is required to approve transactions involv
*535
ing Indian land is entirely consistent with the high fiduciary responsibility it has to manage land held in trust for Indian use. As a trustee the Secretary is expected to manage Indian land so as to maximize the benefits obtaining to the Indians. The court is unwilling to admit that the protection afforded by the Secretary does not extend to include overseeing the economic interests of Indian lessors. To the contrary, the devotion of Indian land to uses designed to maximize lease revenues is the conventional goal of trust management.
See
Chambers & Price,
supra,
at 1065. The United States has the duty to get “the best possible price” for the Indians.
Gray v. Johnson,
5. CONCLUSION
The foregoing analysis has demonstrated that there is no likelihood of plaintiffs prevailing at a trial on the merits of this dispute. Even assuming that a trial would show that the tribal corporation was the lessor of the seven tribal leases, and assuming further that the twenty-three individual lessors of the allottee leases would be joined, the court is of the opinion that the Secretary’s refusal to approve the communitization agreements was committed to his discretion by law. The court observes, too, that even if the Secretary’s exercise of discretion was amenable to judicial review it did not rise to the level of an abuse of discretion. Nor was it arbitrary or capricious.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion for extension of lease suspension and preliminary injunction is denied.
IT IS FURTHER ORDERED that the previous order entered by the court suspending the termination of the leases remain in effect for ten days to allow plaintiffs’ application to the Court of Appeals of the Tenth Circuit for a further suspension pending the outcome of any appeal from the instant order or the expiration of time within which an appeal might be brought.