314 F.2d 257 | D.C. Cir. | 1963
Section 17 of the Mineral Leasing Act of 1920
Experience in the administration of the Act has demonstrated that land subject to leasing after expiration or cancellation of a prior lease often has significant speculative value
Prior leases on the lands in suit expired by operation of law on June 30, 1961. Appellant filed its applications for leases on July 3, 1961, the next business day. On July 17, 1961, the lands were posted under the procedure described above and applications for leases were accepted until 10:00 a. m. on the “fifth working day thereafter.” Appellant filed no applications during this interval. A drawing was held among those applications filed during this period and intervenor Boyle was the winner. Appellant’s applications of July 3, 1961, were rejected as untimely. Having exhausted its remedies within the Department, appellant brought suit for a judgment declaring Regulation 192.43 invalid and granting the leases to it.
Appellant, ignoring Mr. Justice Frankfurter’s famous dictum,
The Secretary has full authority under the Act “to prescribe necessary and proper rules and regulations”
In administering the Mineral Leasing Act, the Secretary exercises a discretionary, rather than a ministerial, function. Compare Udall v. States of Wisconsin, Colorado and Minnesota, 113 U.S.App.D.C. 183, 306 F.2d 790 (1962). The provisions of the Act “plainly indicate that Congress held in mind the distinction between a positive mandate to the Secretary and permission to take certain action in his discretion.” United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 418, 51 S.Ct. 502, 75 L.Ed. 1148 (1931). This, of course, does not mean that the Secretary is permitted to grant a lease to one other than “the person first making application.” It does mean that the Secretary is to determine who that first person is. Hence the provision in the Act authorizing the promulgation of regulations. 41 Stat. 450, 30 U.S.C. § 189. It is likewise clear that the language “person first making application” is not so definite, particularly when prior experience with its application is considered, as to render an interpretative or implementing regulation inappropriate. Compare Helvering v. R. J. Reynolds Co., 306 U.S. 110, 114, 59 S.Ct. 423, 83 L.Ed. 536 (1939); Morrissey v. Commissioner, 296 U.S. 344, 354-355, 56 S.Ct. 289, 80 L.Ed. 263 (1935).
Appellant does not argue that Regulation 192.43 unfairly favors some applicants for leases at the expense of others
It must be owned that the px*ocedure outlined in Regulation 192.43, on superficial examination, bears little resemblance to the “person first making application” language of the statute. But Congress could hardly have supposed that granting $.50 per acre mineral leases can be accomplished as simply as the statutory language seems to indicate. The history of the administration of the statute furnishes compelling proof, familiar to the membership of Congress, that the human animal has not changed, that when you determine to give something away, you are going to draw a crowd. It is the Secretary’s job to manage the crowd while complying with the requirement of the Act. Regulation 192.43 is the Secretary’s effort in this direction. We cannot say that it is an impermissible implementation of the statutoi*y pui*pose.
Affirmed.
. 41 Stat. 443, as amended, 30 U.S.C. § 226.
. 43 C.F.R. § 192.43.
. Appellant also argues that when land has been once offered for leasing under the Act, the Secretary may not "withdraw” the land pending re-lease. This contention has been rejected by this court on prior occasions. Wright v. Paine, 110 U.S.App.D.C. 100, 289 F.2d 766 (1961); Haley v. Seaton, 108 U.S.App.D.C. 257, 281 F.2d 620 (1960).
. Geological information acquired during a prior lease as to the proximity of a known structure often greatly enhances the value of the property for mineral purposes.
. Miller v. Udall, 113 U.S.App.D.C. 339, 307 F.2d 676, 677-678, n. 1 (1962).
. “The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification.” United States v. Monia, 317 U.S. 424, 431, 63 S.Ct. 409, 87 L.Ed. 376 (dissenting opinion) (1943).
. For a description of some of the devices used to obtain advantages in the race to be first, see Miller v. Udall, supra Note 5; Signal Oil and Gas Company, Interior Dept. No. A-28626 (1961); Margaret A. Andrews, et al., 64 I.D. 9 (1957).
. A similar predecessor regulation and the present regulation as applied to the release of land on which leases have been cancelled or relinquished have been construed in other cases by this court, in none of which has any doubt been expressed as to their validity. In McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 226 F.2d 35 (1955), this court, while specifically noting that Section 17 requires that the lease be issued to the “person first making application,” passed upon the qualifications of a leaseholder chosen by lot. In Miller v. Udall, supra Note 5, 307 F.2d at 677, n. 1, this court recognized the “vice” of literal application of the first in time rule and noted with approval the provisions for “public notice and fuller public participation” found in Regulation 192.43. Appellant attempts to distinguish these cases on the ground that the prior leases there involved terminated .prematurely, whereas the prior leases here expired routinely. In so doing, it challenges the discretion of the Secretary, rather than the procedure provided by the regulation. We find the Secretary’s action in extending the regulation to include expired leases neither arbitrary nor capricious. See Hall v. Payne, 254 U.S. 343, 347, 41 S.Ct. 131, 65 L.Ed. 295 (1920); North Central Airlines, Inc. v. Civil Aeronautics Bd., 105 U.S.App.D.C. 207, 265 F.2d 581 (1959).
. 41 Stat. 450, 30 U.S.C. § 189.
. Compare Barash v. Seaton, 103 U.S.App.D.C. 159, 256 F.2d 714 (1958); McKay v. Wahlenmaier, supra Note 8.