STATE OF WASHINGTON, Appellant, v. Stewart L. UDALL, Secretary of the Interior, et al., Appellees.
No. 22413.
United States Court of Appeals Ninth Circuit.
Oct. 14, 1969.
Rehearing Denied Dec. 24, 1969.
James M. Carter, Circuit Judge, dissented.
As Modified Oct. 14, 1969.
James M. Carter, Circuit Judge, dissented.
Roger P. Marquis (argued), Clyde O. Martz, Asst. Atty. Gen., Washington, D. C., Smithmoore P. Myers, U. S. Atty., Spokane, Wash., Ronald R. Hull, Asst. U. S. Atty., Yakima, Wash., for appellee.
Before HAMLIN, ELY, and CARTER, Circuit Judges.
ELY, Circuit Judge:
The State of Washington instituted this suit in an attempt to secure judicial review of an administrative determination by the Secretary of the Interior, acting through subordinate officials in the Bureau of Reclamation. The federal officials had determined that Washington was not entitled to the delivery of water from the Columbia Basin Project to more than 160 irrigable acres of certain state-owned lands within the South Columbia Basin Irrigation District. The District Court, relying on the Supreme Court‘s decision in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), and holding that the United States was an indispensable party and had not consented to such a suit against it, dismissed the State‘s complaint upon the basis of the doctrine of sovereign immunity. The State appeals, contending that the United States has waived its immunity through the Administrative Procedure Act,
The State also urges that jurisdiction was vested in the District Court under the Tucker Act,
In the South Columbia Basin Irrigation District the State of Washington owns, in trust for the benefit of the common public educational institutions of the state, fourteen tracts of school lands containing 1,594 irrigable acres. In July of
The source of the disagreement between state and federal authorities lies in their conflicting interpretations of the effect of
Following the enactment of the 1962 legislation, which withdrew legislative authorization for the 1951 contractual agreement, federal officials refused to deliver irrigation water to the State‘s excess school lands and refused to acknowledge any continuing obligation under the 1951 contract. The State argues that the only effect of the 1962 legislation was to conform the regulatory program for the Columbia Basin to that of other reclamation areas under the general Federal Reclamation Laws, under which, the State contends, its school lands are not subject to the excess land restrictions applied to private landowners. The State submits that, since the disposal of excess school lands is no longer necessary for the delivery of project water, the 1950 legislation which authorized the 1951 contract was no longer necessary and that this was the reason for its repeal.
The State sought a declaration by the District Court that the 160-acre limitation does not apply to Farm Units 34 and 35 and that all school lands are eligible for water from the Columbia Basin Project, an injunction restraining federal officials from requiring the execution of recordable contracts as a precondition to delivery of water to excess lands, and mandatory relief ordering federal officials to deliver federal project water to all irrigable acres in Farm Units 34 and 35. The State also sought monetary damages for the failure of federal officials to deliver water to the excess lands in these farm units. Since each unit by itself contained less than 160 acres, the combined excess was designated to lie in Farm Unit 35. The State, in an attempt to preserve jurisdiction over this issue in the District Court, waived any claim for damages to Farm Unit 35 in excess of $10,000.
The appellees argue, in support of the judgment of dismissal below, that the suit was essentially one for specific performance of contractual obligations of the United States, an indispensable party, and that the United States has not consented to such a suit. The State, however, responds that it did not seek specific performance of the 1951 contract but, rather, relief based on the failure of federal officials to conform their actions to statutory requirements. To resolve the problem, we review the numerous Supreme Court opinions regarding the doctrine of sovereign immunity.
In Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1928 (1949), the respondent corporation had sought to compel the War Assets Administrator to deliver certain surplus coal in accordance with a contract that the Administrator had made with the respondent. The Supreme Court directed the dismissal of the suit because of the sovereign immunity of the United States, an indispensable party that had not consented to the suit.7 The Court reasoned that the suit against the War
The Supreme Court reaffirmed Larson in Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), stating that it was not necessary to resolve the large number of apparently conflicting Supreme Court decisions prior to Larson. The Court in Malone explained, at 646, 82 S.Ct. at 983.
“For in Larson the Court, aware that it was called upon to ‘resolve the conflict in doctrine’ (337 U.S., at 701 [69 S.Ct. at 1467]) thoroughly reviewed the many prior decisions, and made an informed and carefully considered choice between the seemingly conflicting precedents.”
Malone involved an ejectment action against a United States Forest Service Officer performing his official duties on land claimed by the United States and also claimed by the petitioner on the basis of his status as a remainderman under an 1857 will. The Court invoked the doctrine of sovereign immunity in the following terms:
“No such claim [of unconstitutionality] has been advanced in the present case. Nor has it been asserted that the petitioner was exceeding his delegated powers as an officer of the United States in occupying the land in question, or that he was in possession of the land in anything other than his official capacity. This suit, therefore, is not in the class of cases in which, under Larson, specific relief can be obtained against a government officer. Accordingly, it was * * * in substance and effect one against the United States without its consent.”
Id. at 648, 82 S.Ct. at 984. The Court noted that just compensation against the United States could be obtained in the Court of Claims and that therefore the case did not fall within the unconstitutionality exception to the doctrine of sovereign immunity. Id. at 647, 82 S.Ct. 980. Professor Jaffe has written favorably of the Malone decision upon the theory that the United States may regulate, in a reasonable fashion, suits against its officers and that it may abolish suits against its officers by taking liability upon itself in a specified manner, such as by prescribing an action for damages in the Court of Claims. Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 38-39 (1963).
The Supreme Court reiterated, in 8-0 decisions, the Larson-Malone formulation of the doctrine of sovereign immunity in Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963), and in a companion case, City of Fresno v. California, 372 U.S. 627, 83 S.Ct. 996, 10 L. Ed.2d 28 (1963). In these cases, certain claimants of water rights had sued officials of the Bureau of Reclamation of the Department of the Interior to enjoin them from diverting river waters for a public project and to obtain an adjudication of the water rights in controversy.
“The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ Land v. Dollar, 330 U.S. 731, 738 [67 S.Ct. 1009, 1012, 91 L.Ed. 1209] (1947), or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ Larson v. Domestic & Foreign Corp., supra, [337 U.S.] at 704 [69 S.Ct. at 1468, 93 L.Ed. 1628]; Ex parte New York, 256 U.S. 490, 502 [41 S.Ct. 588, 591, 65 L.Ed. 1057] (1921). The decree here enjoins the federal officials from ‘impounding, or diverting, or storing for diversion, or otherwise impeding or obstructing the full natural flow of the San Joaquin River. * * *’ Transcript of Record, Vol. III, p. 1021. As the Court of Appeals found, the Project ‘could not operate without impairing, to some degree, the full natural flow of the river.’ Experience of over a decade along the stretch of the San Joaquin involved here indicates clearly that the impairment was most substantial—almost three-fourths of the natural flow of the river. To require the full natural flow of the river to go through the dam would force the abandonment of this portion of a project which has not only been fully authorized by the Congress but paid for through its continuing appropriations. Moreover, it would prevent the fulfillment of the contracts made by the United States with the Water and Utility Districts, which are petitioning in No. 115. The Government would, indeed, be ‘stopped in its tracks * * *.’ Larson v. Domestic & Foreign Corp., supra, [337 U.S.] at 704 [69 S.Ct. at 1468, 93 L.Ed. 1628].”
“* * * The judgment, therefore, would not only ‘interfere with the public administration’ but also ‘expend itself on the public treasury * * *.’ Land v. Dollar, supra [330 U.S.] at 738 [67 S.Ct. at 1012, 91 L.Ed. 1209]. Moreover, the decree would require the United States—contrary to the mandate of the Congress—to dispose of valuable irrigation water and deprive it of the full use and control of its reclamation facilities. It is therefore readily apparent that the relief granted operates against the United States.”
“Nor do we believe that the action of the Reclamation Bureau officials falls within either of the recognized exceptions to the above general rule as reaffirmed only last Term. Malone v. Bowdoin, 369 U.S. 643 [82 S.Ct. 980, 8 L.Ed.2d 168]. See Larson v. Domestic & Foreign Corp., supra; Santa Fe Pac. R. Co. v. Fall, 259 U.S. 197, 199, 42 S.Ct. 466, 467, 66 L.Ed. 896 (1922); Scranton v. Wheeler, 179 U.S. 141, 152-153, 21 S.Ct. 48, 52-53, 45 L.Ed. 126 (1900). Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void. Malone v. Bowdoin, supra, [369 U.S.] at 647 [82 S.Ct. at 983, 8 L.Ed.2d 168]. In either of such cases the officer‘s action ‘can be made the basis of a suit for specific relief against the officer as an individual * * *.’ Ibid.”
The Court, in applying the rule of sovereign immunity, concluded that the federal officials had been authorized by Congress to seize the waters of the river and that such authorization was constitutionally permissible because,
“The question was specifically settled in Ivanhoe Irrigation District v. McCracken, supra [357 U.S. 275, [78 S.Ct. 1174, 2 L.Ed.2d 1313] (1958)], where we said that such rights could be acquired by the payment of compensation ‘either through condemnation or, if already taken, through action of the own-
ers in the courts.’ 357 U.S., at 291 [78 S.Ct. at 1183, 2 L.Ed.2d 1313].” Id. at 619, 83 S.Ct. at 1006.8
Our examination of the Supreme Court decisions in Larson, Malone, and Dugan leads us to conclude that Washington‘s complaint in this case falls within the ultra vires exception to the bar of sovereign immunity. Although the thrust of the State‘s argument has not centered upon the possibility that federal officials acted beyond their delegated authority, the State has alleged that the federal officials violated a plain legal duty and were arbitrary and capricious in their actions because of their allegedly erroneous interpretation of
Of course, the mere allegation that a federal officer‘s action is erroneous, due to a mistake of fact or law, does not necessarily constitute a claim that he was acting beyond his delegated authority. See Dugan, supra, 372 U.S. at 622, 83 S.Ct. 999; Larson, supra, 337 U.S. at 695, 69 S.Ct. 1457, citing Adams v. Nagle, 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999 (1938). Nevertheless, if the State‘s interpretation of
“No water shall be delivered * * * until a contract or contracts in form approved by the Secretary of the Interior shall have been made with an irrigation district * * * providing for payment by the district * * * of the cost of constructing, operating, and maintaining the works during the time they are in control of the United States, such cost to be repaid within such terms of years as the Secretary may find to be necessary, in any event not more than forty years * * *. Prior to or in connection with the settlement and development of each of these projects, the Secretary of the Interior is authorized in his discretion to enter into agreement with the proper authorities of the State or States * * * whereby such State or States shall co-operate with the United States in promoting the settlement of the projects or divisions after completion and in the securing and selecting of settlers. Such contract or contracts with irrigation districts hereinbefore referred to shall provide that all irrigable land held in private ownership by any one owner in excess of one hun-
dred and sixty irrigable acres shall be appraised in a manner to be prescribed by the Secretary of the Interior and the sales prices thereof fixed by the Secretary on the basis of its actual bona fide value at the date of appraisal without reference to the proposed construction of the irrigation works; and that no such excess lands so held shall receive water from any project or division if the owners thereof shall refuse to execute valid recordable contracts for the sale of such lands under terms and conditions satisfactory to the Secretary of the Interior * * *.” (Emphasis added.)
Since the essence of Washington‘s case on the merits requires determination of whether the Secretary of the Interior, acting through his subordinate officials, exceeded his statutory authority by insisting on the 160-acre limitation authorized only in contracts for the delivery of water to “land held in private ownership,” the case falls squarely within one of the Supreme Court‘s expressly stated exceptions to the application of the immunity doctrine.
Although an officer may have acted ultra vires or unconstitutionally, it is nevertheless possible that the doctrine of sovereign immunity will bar certain types of relief against the Government. The Court in Larson, supra, 337 U.S. at 691 n. 11, 69 S.Ct. at 1462, added the following qualification regarding a case that falls within one of the two express exceptions contained in the sovereign immunity rule:
“Of course, a suit may fail, as one against the sovereign, even if it is claimed that the officer being sued has acted unconstitutionally or beyond his statutory powers, if the relief requested can not 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. North Carolina v. Temple, (1890) 134 U.S. 22 [10 S.Ct. 509, 33 L.Ed. 849].” [emphasis added]
We do not interpret the Larson Court‘s footnote 11 to mean that a suit must fail if the relief sought includes “affirmative action by the sovereign or the disposition of unquestionably sovereign property.” Professor Jaffe has written that the Larson opinion indicated no intent to overrule a long line of cases wherein such relief was granted against the Government. The relief approved in these cases includes mandamus to require the affirmative grants of patents to public lands of the United States and injunctive relief compelling the Secretary of the Interior to deliver certain irrigation water to users in the State of Washington according to their rights under the Federal Reclamation Act—the same Act as is involved in the present controversy.10 See Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525 (1937), cited with ap-
Judge Browning of our court, in a thorough study of the Larson-Malone-Dugan trilogy, has written that the language of the Dugan opinion refuted the possibility that Larson might stand for the broad proposition that sovereign immunity precluded all suits, although based on unconstitutional or ultra vires acts, for affirmative relief or for the disposition of property of the United States. Turner v. Kings River Conservation Dist., 360 F.2d 184, 189-190 (9th Cir. 1966). We read, at 190,
“We conclude from this that although the relief sought may be such that under the ‘general rule’ a suit would appear to be one against the sovereign, the action is nonetheless maintainable against government officers under the two ‘exceptions’ to the ‘general rule’ if the acts of the officers were prohibited by statute or the Constitution.”
We reaffirm our position in Turner that the Larson opinion was not intended to preclude, in the name of sovereign immunity, all suits for affirmative relief or for the recovery of property of the United States.
We believe that the Court‘s footnote 11 in Larson means that the purposes for the doctrine of sovereign immunity may be controlling in some suits against officers so that the suits must be dismissed as suits against the Government, even though the officers were not acting pursuant to valid statutory authority, because the relief sought would work an intolerable burden on governmental functions, outweighing any consideration of private harm. In such cases a party must be denied all judicial relief other than that available in a possible action for damages. See, e.g., Morrison v. Work, 262 U.S. 481, 485-486, 45 S.Ct. 149, 69 L.Ed. 394 (1924) (Opinion of the Court by Mr. Justice Brandeis).
Although the Supreme Court in Dugan held that the federal officials concerned therein were not acting unconstitutionally or in excess of their delegated authority, the Court nevertheless undertook an extended analysis of the public benefits resulting from the officers’ diversion of the river waters for a federal project and the potential defeat of a substantial portion of the project if the officials were enjoined from diverting water for the project because of the alleged rights of private users of the water. 372 U.S. at 620-621, 626, 83 S.Ct. 999. The relative equities and burdens in the present case, as alleged by the State of Washington, stand in sharp contrast to those in Dugan. The Government does not seek to limit the supply of irrigation water to the State in order to avoid disruption of the Columbia Basin Project or to assure a remaining supply for some other federal or public use. Federal officials are willing to deliver water to the irrigable lands in question;11 the
Consequently, there appears no reason pertaining to sovereign immunity why the District Court should not consider the State‘s complaint on its merits in order to determine whether the Secretary of the Interior or his subordinates have exceeded their statutory authority by imposing the excess-land policy. The resolution of this issue depends upon a statutory interpretation of the reclamation laws, particularly
Since the doctrine of sovereign immunity did not deprive the District Court of jurisdiction to interpret legislation for the determination of whether the Secretary exceeded his delegated authority, the District Court had jurisdiction under the Administrative Procedure Act,
While we hold that the Secretary‘s challenged action in this case is subject to judicial review under the Administrative Procedure Act, we strongly emphasize our opinion that such review is not available on the theory that the Act constitutes a consent of the United States to all suits of whatever nature and, as such, a blanket waiver of sovereign immunity. In any case wherein the immunity doctrine is so transcending as to require dismissal of the suit, the Act does not provide for Administrative Review. The Supreme Court has not found jurisdiction under the Administrative Procedure Act in cases wherein the actions of the Secretary of the Interior have been held to be shielded from judicial review by sovereign immunity. See City of Fresno v. California, supra, 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28; Dugan v. Rank, supra, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15. See also Blackmar v. Guerre, 342 U.S. 512, 515-516, 72 S.Ct. 410, 412, 96 L.Ed. 534 (1952) (8-1 decision concerning review of a Civil Service Commission decision) “Still less is the [Administrative Procedure] Act to be deemed an implied waiver of all governmental immunity from suit.“; Motah v. United States, 402 F.2d 1 (10th Cir. 1968); Chournos v. United States, 335 F.2d 918 (10th Cir. 1964); L. Jaffe, Judicial Control of Administrative Action 372 (1965) (Administrative Procedure Act has had a negligible effect on the basic right to judicial review but does codify the presumption of reviewability).
The Administrative Procedure Act may, however, provide a basis for review of governmental decisions if, and only if, the immunity doctrine is not so controlling so as to bar the suit. Numerous cases have involved review under the Act of decisions of the Secretary of the Interior in situations wherein the doctrine of sovereign immunity was not considered to require dismissal. See Converse v. Udall, supra, 399 F.2d 616; Brennan v. Udall, supra, 379 F.2d 803; Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), rev‘d on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Foster v. Seaton, 106 U.S. App.D.C. 253, 271 F.2d 836 (1959), cited with approval in Best v. Humboldt Mining Co., 371 U.S. 334, 338 n. 7, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Adams v. Witmer, supra, 271 F.2d 29; cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) (agency action reviewable under Administrative Procedure Act absent “clear and convincing evidence” of contrary legislative intent). See also Mulry v. Driver, 366 F.2d 544 (9th Cir. 1966) (review of orders and regulations of the Administrator of the Veterans Administration).
Under the foregoing principles, since sovereign immunity did not require dismissal of the complaint in this case, District Court jurisdiction also existed under the federal question and declaratory judgment statutes,
The District Court correctly decided that the State impermissibly split its claim for damages under the Tucker Act,
Reversed and remanded.
JAMES M. CARTER, Circuit Judge (dissenting):
I respectfully dissent. The factual situation which forms the basis of the case before us is a frustrating one, but one in which neither the officials of the State of Washington nor of the United States government have been arbitrary or capricious in their actions.
The case concerns the desire of the State of Washington to secure water for its school lands. Under Washington law the disposal of such lands is restricted by Sec. 11 of the Washington Enabling Act and by
Without doubt Washington is entitled to relief from the intolerable situation that prevents its sale of school lands since water cannot be obtained under the present Federal statutes. Hard cases make bad law. The situation is one for Congress to remedy, and not for this court to, in substance, legislate.
The district court applied the doctrine of sovereign immunity and dismissed on the ground that the action was, in substance, an action against the United States and that the United States had not consented to be sued.
A lengthy dissent would not change my brethren‘s views. The dissent, therefore, will be in summary form.
1. The majority, relying largely on legal writings, other than decided cases, writes as to what the law ought to be, and thereon bases its reversal. It is not the function of our courts to legislate. This is the business of Congress.
2. The opinion flies in the face of the Supreme Court‘s decisions in Larson v. Domestic and Foreign Commerce Corp., (1949) 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1928; Malone v. Bowdoin (1962), 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168; Dugan v. Rank (1963), 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 115; and City of Fresno v. California (1963), 372 U.S. 627, 83 S.Ct. 996, 10 L.Ed.2d 28. Three of the cases, Larson, Dugan and City of Fresno directly concerned property owned by the United States. Here the water from the Columbia Basin project is owned by the United States and the action seeks to direct how the United States disposes of its water. The cited cases control.
The opinion is contrary to White v. Administrator of General Services Admin. (9 Cir. 1965), 343 F.2d 444 which is directly in point. The action was to compel the execution of a deed conveying an interest in land.
3. Larson, supra, provides two exceptions to the application of the doctrine of sovereign immunity; (1) when the officer‘s powers are limited by statute and his actions are ultra vires; and (2) when the officer is acting unconstitutionally or pursuant to an unconstitutional statute.
Here, there were no contentions as to the second exception.
4. In our case there can be no contention that the federal officials were acting ultra vires. They were doing exactly what the statute,
5. Where a federal officer has authority, action taken by him which is erroneous, because of a mistake of law or fact, does not become action ultra vires or beyond his delegated authority. Dugan, supra, p. 622, 83 S.Ct. 999; Larson, supra, pp. 695, 701-702, 69 S.Ct. 1457; Adams v. Nagle (1938), 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999.
The opinion states “The resolution of this issue [whether the Secretary‘s imposition of the 160 acre limitation was within his delegated powers] depends on whether Congress granted to the Secretary * * * the discretionary authority to make incorrect as well as correct decisions concerning the necessity for the inclusion of the 160-acre limitations in the contracts.”9 The authorities cited for this statement in note 9 are the legal and text book writers.
The statement gave the Secretary the express power to do exactly what he did. His interpretation that school lands were “land held in private ownership” was at the very best erroneous. Neither the majority opinion or this dissent should reach the question of the proper interpretation to be given that language, since it was not considered below. A reasonable interpretation may well be that all lands, not the property of the United States, or public lands, are private lands.
The majority opinion is contrary to the controlling authorities cited above.
6. Since we think that the United States has not consented to be sued and the trial court properly applied the doctrine of sovereign immunity there is no need to discuss the jurisdiction of the trial court. The majority, we think, correctly notes that neither the mandamus statute or the Administrative Procedure Act, represents a consent by the United States to be sued or a waiver of sovereign immunity.
The judgment should be affirmed.
Notes
For cases holding or intimating that the Administrative Procedure Act is a consent to sue the United States, see Coleman v. United States, (9 Cir. 1966) 363 F.2d 190; reversed in United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170; Adams v. Witmer (9 Cir. 1958), 271 F.2d 29; Mulry v. Driver (9 Cir. 1966), 366 F.2d 544; Estrada v. Ahrens (5 Cir. 1961), 296 F.2d 690; Brennan v. Udall (10 Cir. 1967), 379 F.2d 803, cert. denied 389 U.S. 975, 88 S.Ct. 477, 19 L.Ed.2d 468; Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681; Converse v. Udall (9 Cir. 1968), 399 F.2d 616, cert. denied (1969) 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 relying on Coleman v. United States, in the circuit (363 F.2d 190).
“The vice of Larson and its progeny is that they permit—perhaps even encourage—courts to shirk the hard task of determining the limits of official power. It is perfectly possible for a court to hold that an official has authority to make erroneous as well as correct determinations. Such a holding, of course, should rest on a reasoned determination that Congress intended to confer so broad a discretion. But under Larson * * * et al., the courts seem to interpret the statutes cursorily to authorize the defendant official to act in the ‘general’ area in question; so long as the official remains within the ‘general’ area, his erroneous acts are unreviewable whether or not the statute properly construed was intended to confer such an unreviewable discretion. This, I submit, is an abdication of judicial responsibility.” 75 Harv.L.Rev. at 1490-91 (citations omitted).See Byse, supra note 7, at 1490-91; Jaffe, The Right to Judicial Review I, 71 Harv.L.Rev. 401, 437 (1958); cf. Adams v. Nagle, 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999 (1938). Professor Byse has observed,
“The vice of Larson and its progeny is that they permit—perhaps even encourage—courts to shirk the hard task of determining the limits of official power. It is perfectly possible for a court to hold that an official has authority to make erroneous as well as correct determinations. Such a holding, of course, should rest on a reasoned determination that Congress intended to confer so broad a discretion. But under Larson * * * et al., the courts seem to interpret the statutes cursorily to authorize the defendant official to act in the ‘general’ area in question; so long as the official remains within the ‘general’ area, his erroneous acts are unreviewable whether or not the statute properly construed was intended to confer such an unreviewable discretion. This, I submit, is an abdication of judicial responsibility.” 75 Harv.L.Rev. at 1490-91 (citations omitted).
“If [Mr. Chief Justice] Vinson‘s may is read as may and not as must, it is unobjectionable. North Carolina v. Temple was a suit to require the state to levy taxes to fund bonds and no type of suit, as we know, is more centrally within the prohibition of the eleventh amendment. But if a decree which requires ‘affirmative action by the sovereign,’ e. g., grant of a license, of a civil service post or any other of the actions traditionally enforced by mandamus, if such a decree could no longer be made, then Larson would have worked a sharp and startling change. And, similarly, if it excludes an order to dispose ‘of unquestionably sovereign property,’ it would overrule a long line of Supreme Court decisions. There is nothing whatever in the opinion to indicate an intention to override such well-established doctrines, let alone any reason to do so. The only possible explanation would be a desire for some abstract doctrinal purity.”Jaffe, supra note 7, at 34 (citations omitted).
“14. In the event that the Congress of the United States repeals the so-called excess land provisions of the Reclamation Law, this excess land recordable contract shall no longer be of any force or effect * * *.”