*1 ,428 hospitalization. The reason
tinued LaRUE, Sr., al., Appellants, W. Dalton et back, bring they under- her as did I not a non- Doctor, she was was that stood jurisdic- UDALL, individually as resident. was out Stewart L. She Interior, bringing her way they had no tion Secret advise back. But did safe- Service, responsible who are Inc., Appellees. Aviation, American North ty President welfare of No. 17711. n President Vice States and the United Appeals Court of United States had She of the United States. of Columbia Circuit. District attempted Eisenhower. to see President Argued June Under Section 21-320 District Decided Oct. 1963. edition, Code, provision is Columbia discharged made for one who has been improved or, as uses the the Code
words, hospital “released from such paroled
improved,” or one has been who hospital, from in neither case but discharged pa-
has been That as cured. may, parolee dis- tient charged, while or one again, or uses the as the Code
term, “released,” petition for restoration. par- petition granted, that
Unless that is patient
ticular the decree remains under adjudication being mind. of unsound Code, provision is
There no so find, escapee can about an or as I one far permission. However, leaves without
who escapes from me that one who
it seems per- hospital, one who leaves without
mission, position should be in better permitted leave,
than one who been improved;
by parole released as or either he who has been released as
since improved paroled, who has
or he been been
and who shall have absent pa- hospital permissive release period longer, six months role petition file a for restoration has to mind, person then of sound status Gillis, patient, who was Wanda paroled, or so with- released left so permission, would have obtain le-
out gal restoration, Until that restoration. patient my opinion that this needs it is being adjudication as of un- further no properly in mind and Hospital Eliza- Saint sound adjudica- under the 1958 beths say This is not to tion, not the 1957. if petition for writ of habeas cannot she ground long- she
corpus on the But writ should issue insane.
er point here asserted. thé *2 E. court, Mr. Warren with whom C., Washington, Baker, D.
brief, Avia- appellee American for North Jr., Healy, tion, Joseph F. Inc. Mr. ap- C., an Washington, D. also entered pearance appellee American North Aviation, Inc. Judge,
Before Chief Bazelon, Burger, Circuit K. Miller and Wilbur Judges. Judge. MILLER, Circuit WILBUR K. appellants operate ranch a cattle of Carson located within the boundaries Grazing City District No. Nevada. They 1,600 acres own in fee about non-contiguous tracts, li- and are five graze approxi- censed their cattle mately 10,000 Due land. acres grants railroad Nineteenth up Century, is made both the area publicly privately tracts in owned pattern. checkerboard Aviation, Appellee North American engaged large corporation Inc., is a development and manufacture engines power plants rocket rocket Having in that and in research field. point progressed it needed where large very body of land in an isolated program, development its area acquired to a con- title American North privately portion of the owned siderable City portion of Graz- Carson ing District No. 3 heretofore utilized complete appellants. In its order to to ac- project, needed North American large acreage quire the appellants. license Ginsburg, Washington, Mr. David D. C., Bebchick, with whom Mr. Leonard N. portion of Carson Washington, brief, C.,D. was on City No. which District appellants. $86,400, appraised North value an United States more offered the American Clark, Atty., Dept, Mr. Edmund B. lying 20,000 boun- within the acres than Justice, Atty. with whom Asst. Gen. Grazing District of Winnemucca daries Ramsey Clark, Roger Marquis Messrs. P. appraised Nevada, has an McKevitt, Attys., Dept, and Thomas L. $90,100. is a substan- This land Justice, brief, appellee were on land North Ameri- from the distance tial Udall. obtain, desired can Pickett, City, Mr. Charles York New protested appellants the ex- Appeals the bar the Court of from the area cattle York, pro vice, by special of their New hac clusion leave 8(b)' sought by The term serious- interests” American North ranching section, nor is it destroy, ly curtail, defined if not way. If limited operation, them restricted owned as the lands it; asserted had intended to restrict fee will sustain *3 meaning Grazing Act1 manner Taylor (b) those words in the of the § urged by Secretary appellants, the think we the the which authorizes qualification make would have to said Such a so. in circumstances Interior some easily the could in the- exchanges have been inserted authorize does such exchange proposed American. North statute. It Secre- seems to us that the appellants’ Arguments tary pro correctly con on and when he construed § including memo- protest, affidavits opinion: said in his low- the law, considered randa were “* to the benefit [T]he finally Department and echelons of the er public interests, which is the cri- the matter the the reached statute, terion of not be re- the need opin- lengthy Interior. In a somewhat exclusively lated to conservation in matter ion, in discussed the which he grazing Federal nor need resources ex- Secretary approved detail, exchange it be shown that a change. promote range management. * * * Taylor Grazing complained appellants [T]he Thereupon, the multiple purpose is a while for act and Court District to the States United challenging purpose its chief to> Columbia, immediate the District stop injury public approved. to legality domain so of the unregulated grazing promote having and to affirmed The District Court Secretary’s decision, appellants the stabilization of the livestock dustry, brought section 1 of author- the act appeal. this izes to- the Interior They 8(b) of the contend § grazing establish districts in order Grazing the Sec not authorize Act does promote highest to public of the- use patent retary to Interior issue ‘pending domain its final dis- or grazing public land to a for posal.’ Section 3 the Sec- authorizes use, for ganization even retary for industrial permits graze to issue live- especially purposes, grazing stock on such districts but national defense doing provides will terminate of such his act in so the issuance when ranching destroy right, permits shall not a operation. license create argument principal title, interest, is or in or Their estate lands. that publicly authorizes Section amended private 26, 1936, lands act of owned June authorizes the public ly classify when the to examine and owned lands range public in within districts and interests open will be benefited such of those in conservation thereby.2 will not finds to That North American be more or grazing valuable suitable or conservation than or the lands use disputed. proper satisfaction purposes is surveyed 315g public section, of unreserved land in which is 43 U.S.C. 1. That (b), same within a distance of State follows: fifty more within miles the ad- than “(b) will be bene- When joining nearest State base lands.” thereby authorized fited Appellants point accept out a former States So- behalf United Department any privately licitor Interior owned lands with- title that, this view of the section and took or without boundaries case, district, Associate Director of therefor to issue Management equal of Band so inter- patent Bureau for not to exceed an surveyed preted it. land or disposition rights outstanding permit. nate basis laws, rely upon the assertion applicable language been follow- notice we have italicized after given reasonable ing portion permittees. Sec- of 3 of (43 U.S.C., (43 315b): act tion 14 “ * * * 1171) Secre- ed., authorizes sec. giv- shall be Preference sell market into order grazing permits en in the issuance of discon- isolated at auction to those within or a district near public domain tracts nected engaged who are landowners mountainous which are tracts business, livestock occu- fide bona *4 rough for cultivation. and too pants settlers, or or of water owners n nothing necessary sec- rights, may in the water “Thus as suggest permit lands, proper that act of the tions use may acquire rights owned, water or water pied, occu- grazing purposes by being them, except or leased used that land July 1, licensed preference of those until to the detriment given shall land.” in of such use the the issuance permits any owner, occupant, such 8(b) ex- moreover, observe, that § We settler, rights or quired whose ac- were Secretary to ex- pressly authorizes January between private- surveyed public change 31, 1934, December both dates grazing district. a ly outside owned clusive, except permittee that no opinion Secretary’s true, as the It also complying regu- zvith the rules and ac- out, North American’s pointed by lations laid down acreage large privately quisition of the Interior shall be denied the selected of the area owned permit, renewal such such de- graz- importance of if land has reduced impair nial will the value ing in the area. permittee, unit when appellants’ restrict Even pledged security such unit is any as ” statutory * meaning of the ed view bona loan. fide clearly interests,” it is words Their contention is if the Secre- considering pro duty, a may permit a refuse renew result: posed its net to consider permittee’s when the unit advantages of compare which security pledged loan,, for a bona fide bring to conservation would fered land hardly bring “he can about the same industry dis with and the by indirectly terminating permit result a might advantage which to those interests * prior expiration to the of the term withdrawal them result shows, provision As the context re- from a district. lands the selected upon by appellants lied is one of the done, Secretary seems to have 'This the factors to be considered offered “that as he held establishing preferences between con- holdings out block flicting applications permits on the administra and would facilitate the range. By federal no means should it be management of the area tion and providing that, by construed main- appellee purposes.” Thus Udall taining on unit, a lien his a gave approving reason for another may permittee create maintain (cid:127)exchange interpretation in addition his pre- interest a vested therein which will right (b). think he in both (cid:127)of 8 We was exchanging the United vent States from respects. 8(b). it under § point appeal Another on is thus Appellants also assert that their appellants: stated pledged unit has been and is “Appellee security loans, unlawfully Udall for bona and that acted fide deprived appellants proc- not termi- due therefore n Appellants’ Fifth (a) by denying reliance on the full and fair ess disregards provision of hearing derogation Amendment both of 315b) (43 provisions Act “ * * * Amendment; (b) and the Fifth as consistent So far denying full record to the access provisions of appellee decision which Udall’s chapter, grazing privileges rec- denying appellants based; (c) by ognized acknowledged shall be protection Ad- afforded adequately safeguarded, cre- but the Act.” ministrative Procedure is- ation of or the permit pursuant suance length on appellants at heard were provisions chapter of this shall against protest ex any right, interest, title, create change, apparent com it is their real toor the lands.” estate evidentiary plaint is that hear no formal The command of ing nothing in the find held. We safeguard- privileges adequately shall be Taylor Grazing requires a pur- ed “so far as consistent with hearing protest. such Section *5 poses chapter” provisions of this merely dealing exchanges, requires with grazing permit does not mean a publication contemplated of notice prevent is to the Government’s exercise exchange. a intended Where right “one of of which is hearing held, provided to be it therefor provisions chapter.” of this express terms, in it did 1 of § Taylor 315): Grazing Act (43 U.S.C. § Procedure The Administrative hearing require here, a does “ ** * grazing dis- Before (5 1004) 5 of that measure U.S.C. § any tricts are created in State as agency applies only to action which the hearing provided, be herein a shall agency provides pre statute must be public State, in the notice held after hearing. by Springfield Airport a ceded given, shall thereof have been at such Authority B., U.S.App.D.C. C. A. v. location convenient the attend- 197, n. n. F.2d officials, ance of State the set- tlers, residents, and livestock owners carefully all We have considered vicinity, may be determined by appellants, made contentions of the Interior. any but do not find them reason for such No district shall be established disturbing decision. expiration ninety days until the we said in Safarik v. Udall: such after notice shall been have days given, twenty is obvious “It that the nor until after Interior, carrying hearing his out such shall be held functions in the administration (43 9 of Section the Act U.S.C. management lands, public 315h) hearings provide for does “local a must be accorded wide area dis- appeals well-recognized from the decisions and it cretion charge action rule administrative taken administrative officer in a man him will be disturbed procedure similar ner wrong.” clearly court unless provision department.” think the We being clearly wrong, applications apply ex Instead does Secretary’s action seems to us to have change 8(b), a matter in which quite correct. District Court’s been administrative officer is “in local upholding judgment his decision will be charge,” matters that arise affirmed. administration dis It ordered. is so tricts. 68, 74, Udall, U.S.App.D.C. L.Ed. U.S. S.Ct. E.2d sub nom. Hansen 2d 164 cert. denied
433: (concur- Judge policy which had en reversal earlier BAZELON, Circuit couraged disposal public lands to. ring). private ownership.3 policy of land 8(b) of the Under § retaining owner federal conservation — 315g(b) Act, 43 ship regulating prevent, use exchange his may propose to landowner depletion began of natural resources— for federal lands] land [“offered” creation forest reserves after within equal located 1891.4 The lands]; the Sec- extended district [“selected” policy approve the remaining 173,000,000. retary Interior bene- if public acres of lands still unreserved case, because thereby.” In this fited prevent 1934. To soil deterioration and Taylor Act as viewed the “multiple industry stabilize the livestock statute, construed purpose” constituted the chief user of this broad as a “public interests” the term range,5 of the Interior was interest, general public reference authorized to reserve suitable lands being limited to rather than the creation of districts and to. exchange, the approving the terests. regulate grazing by- within the districts finding heavily on his Secretary relied issuing permits.6 recognized It was how gen- benefit would existing ever, pat that the checkerboard found interest, but he eral alternating tern benefit ownership, resulting ex- holds This court the course interests.1 approved either change may during land settlement the nineteenth *6 only approval rest ground. can I think century,7 would it difficult make to ad grazing finding inter- to of benefit on a efficiently.8 minister the districts To ests. was, problem, 8 meet this of the Act § designed 19342 of Act to foster consolidation in the The climaxing domain, legis manner of forest earlier reserves closed S.Rep. finding Secretary’s bene- 1182, Cong., of No. See 2d 1. 5. The 73d Sess. H.R.Rep. (1934); appears 903, Cong., that statements from his No. 2d 73d fit (1934); Cong.Rec. 6346, of the in the area importance of Sess. 78 6364- in recent (1934). Ickes, lessened See lands 65 The National selected Saturday “acquisition Deal, offered of the years, Domain the New Evening holdings 23, 1933, p. of Post block out Dec. 10. lands the administra- facilitate and would lands originally 1 of the 6. Section limited the management of area for tion amount of land could in- total which LaRue, purposes.” Dalton W. 80,000,000 cluded in districts (1962). Sr., A-29309 curb, limitation, acres. This inserted Cong.Rec. 1934, power Secretary, 48 Stat. 1269 of of June 78 2. Act shortly amended, (1934), §§ U.S.C. (1934), 43 11140 abandoned application (1958). maximum order to allow 315a-315r policies. Act’s 49 Stat. 1976 Hearings g., Before See, on H.R. 6462 e. 3. (1936); (1954); 68 Stat. 151 see 80 on Public Lands Committee Senate Cong.Rec. Today (1936). 3815-16 there Cong., Surveys, 2d Sess. 46 73d 161,000,000 are grazing federal in 58- acres O’Mahoney (statement Senator (1934) Bureau of Land districts. Robbins, Land- Wyoming). Our See Management, Statistics, Publc Land Heritage especially 285-423, 421-23 ed Table 81 Closing Peeper, oe the The (1950); 8-231, (1951); pattern 302-41 the checkerboard Domain 7. Behind Public history entry, Held, Federal Lands free land The familiar rail- & Clawson grants, (Marion (1957) was Di- road land school land cessions 15-36 Hibbard, Grants, Manage- See Land States. Land Bureau of rector Encyc. Sci. Soc. 1948-53). 9 32 ment H.R.Rep. amended, (1891), 2d 73d 8. Sess. U. 4. Stat. 1103 See Clawson & Held 48- § S.C. interests, proposi- it said For authorized so. lation: dealing tion, 8(a), accept consolidate cites land which would gift gift acceptance lands, requires grazing districts, either specific showing for other “promote will of a district equal value.10 or facilitate the administration legislative history The public lands.” But I think do not authorizing that in shows general language more was in- in § private in- convey lands to go tended to allow the be- part of an dividuals as yond grazing interests for his standards. source not as was intended power a new Rather, it indicates that in an lands, sim- federal alienate lands, there will be than one more graz- promote ply consolidation heading factor to under the consider ing such, I think districts.11 grazing interests. Thus where the Gov- interests determination conveying ernment procuring land, well as exchange]” [by an benefited it must consider the only public in further- cludes eifect of the transaction ad- range stabiliza- ance ministration of the district of subject of policies which tion are the land, the offered but also its effect term was so construed an Act. opinion administration of the rendered the Solicitor of the selected land and on the interests shortly Department of after the Interior licensees of land to be passage,12 is no basis Act’s and there conveyed.14 might While offered land suggestion that required standards, meet the the detri- changed since have amendments giving ment up involved the selected meaning of 8.13 might outweigh the benefit. Farlow, Willis (1955), N. 62 I.D. argues Con- where only grazing equally gress to consider valu- wished (1922), (1934); 11. See 78 Con&.Rec. Stat. 465 Senate 9. 42 Hearings 6462, supra (1958); *7 on H.R. 16 U.S.C. 43 Stat. 1215 note (1958). Hearings, Representa at 94-100. In the §§ See 16 U.S.C. 516 also (1958). tive said: 486a-4S6w say I “But would like to that under this 1934, Act of 48 June 10. Section general bill it is not intended to make a (1934) amended, 43 U.S.C. 1272 Stat. exchange arrangement outside, where 315g (1958): nothing [the lands] have to do with this promote “(a) such Where action bill.” Id. at 98. purposes a district the facilitate of exchange Tay- 12. with States Land under public lands, administration the of Grazing Act, lor 55 9 I.D. Secretary accept on is authorized to major only change a 13. The was 1936 any lands behalf United States eliminating ambiguity amendment an or without the exterior boundaries within exchanges. regard State 49 to Stat. grazing gift. district as a Hearings (1936); see on S. 2359 Before public “(b) interests will When Committee on Senate Public Lands thereby is au- benefited Surveys, Cong., 74th 1st Sess. 47-78 accept to on behalf of the United thorized 8(a) (1935) 8(b) Sections . have any privately title to owned' lands States permit to amended to been accept without boundaries within or a land outside the bound- situated district, exchange grazing and in therefor grazing district, a aries of 49 Stat. 1976 patent equal for not to an issue exceed (1936) ; ap- 62 Stat. 533 But it surveyed grazing district land value pears * * that these * amendments were for purpose acquiring limited land any Upon application “(c) State driveways adjacent for stock needed lands within or without S.Rep. grazing districts. Cf. No. aof boundaries tary Secre- Cong., (1948), 2d 80th Sess. U.S. Code shall, hereby, is Interior Congressional 1948, p. Service 1929. proceed directed with at such practicable Although | 3, (1958), earliest date 14. U.S.C. 315b [Emphasis supplied.] provides permit issuance of a disapproved permitted land be- sales have been able specific legislation17 legislation on two is effect Such cause detrimental presently special- limited to a handful ranchers. purpose statutes, none which author- agrees This court with izes the sale of land in of 1529 excess pub acquire single acres a transaction.18 The Sec- lic land to detriment retary grant authority here claims a agree. I But censees.15 also li does not answer greatly under § exceeds that this question in any public under land law. question here is whether The case. Congress’ Taylor Act de reflects ex such an Secretary’s limit requires termination change provisions §of power.19 purpose was reconfirmed This net effect determination recently legislative as 1958 grazing in will benefit to administrative claims —based is reaction I this think determination terests. greater required, and national needs —to defense is critical considerat authority the offered lands. Follow over the ion.16 criticizing ing report excessive military departments,20 demands incon- would be contrary conclusion A existing legislation congressional amended over-all with sistent authorizing limiting of land for mili reservation sharply policy specific tary purposes21 require con authority to remove general gressional authority for each reservation when ownership. Since forbidden, exceeding 5,000 purpose of acres.22 public land alienation distinguishable right, it simi- that case is because vested create shall policies with underlie consistent lar land conservation far as “[s]o states that chap provisions the forest creation and administration of the ter, grazing districts, recognized privileges ac and be- reserves and the major safeguard adequately issues cause one of the knowledged shall States, F. & Held of forest lands. See United Oman v. ed.” See Canyon 1949); 57-60, Red also 76 Stat. (10th See Cir. 2d 315g-l (Supp. App.D.C. Ickes, IV 1959- Sheep Co. H.R.Rep. Thus, 1962); the exist 87th while F.2d A-27845, Ault, permit outstanding does Owen 2d Sess. an ence of appealed; con preclude a relevant which was not an approval ex- based change his sideration. I national interests. defense requires the Secre- think erred. 15. Section permits where the renew *8 security (1891), pledged as for a 17. 26 1099 43 671 Stat. U.S.C. § unit covered pro- purpose (1958). of this loan. fide bona credit, encourage see bank vision was Hearings major provisions Before the Senate 18. are at 43 on 2359 S. Surveys, 321-339, 351-360, 682a-682e, Lands §§ Public andi 1171- Committee (1935); (1958). summary Cong., 1177 See 1st 37-39 in 74th Sess. Cong.Rec. 11151-55, (1934), Held 391-92. & it in- indication that there was Cong.Rec. Secretary’s power See, g., 19. e. to limit 11140-43 tended exchange. (1934). districts consolidate S.Rep. exchanges Appellees approved Cong., No. cite two 20. 85th 1st Sess. 16. H.R.Rep. 8(b) also under show See No. Cong., not be valuable 84th 2d Sess. offered need Jensen, grazing: In Elbert O. 60 I.D. for (1948), approved 21. 10 U.S.C. 2667 although the offered land was situated forest, within a national under 22. 72 Stat. 43 U.S.C. 155- §§ Taylor jurisdiction Act. But amendment, as described the Sen SMITH, Appellant, 'Report, John Mack ate Committee was: branch to return from the executive America, Congress UNITED STATES of
to the the extent —to Appellee. [public] re- lands are involved—the sponsibility imposed the Constitu- No. 17822. Congress man- for their tion on the Appeals United States Court of agement.23 District of Columbia Circuit. case, ap- present Nevertheless, Argued July 26, 1963. importance argue pellees special that the Decided Oct. 1963. justifies a broad of national defense Rehearing Congress Petitions for En has Banc and reading 8(b). But of § Rehearing by the Division making land—in- provided a method Denied Dec. 1963.
cluding grazing na- land—available Under tional defense. suita- Act, found valuable “more may than use” ble “disposal opened for be reclassified classification in accordance with such applicable public-land laws.”24 (1958) authorizes
And 10 U.S.C. § the Secre- “[w]henever lease department military considers advantageous United States.” although expedi- procedure, not as This exchange,25 one is the as a
tious accommodating Congress na- fixed
tional defense interests. 1934,26 since The decrease growing importance
together industrial de- commercial and Western velopment, indicate emphasis is outdated. Act’s Congress so, nor has not said But U.S.App.D.C. 36, See Congress with land its concern relaxed F.2d 403. of federal and retention conservation changed ownership.27 If circumstances require un- a view interests” goes beyond grazing der § Secretary— terests, —not say must so.28 S.Rep. 1st Sess. 85th 26. See Clawson & Held 335. *9 Int.Dept.Ann.Rep. (1962): 27. See New
24. 43 U.S.C. 315f Conservation, Horizons LXXVI, in Resource IX- especially XLYI-L. See also this case ex- 25. Since selected n Held& 346-47. specific acres, congressional ceeds approval required. legislation would See note 22 considered on the supra. addition, subject North American Avi- in 1963. See S. S. S. gain land, fee title ation would S. S. S. 88th and holders licenses 1st Sess. See also Senate Comm, compensation entitled to for the destruc- on Interior and Insular Af- (cid:127) fairs, Cono., Sess., tion of licenses. 56 Stat. 88th 1st the Pub- amended, 315q (Comm. 1963). lic Lands Print