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Strickland v. Morton

Citation: 5 ELR 20678
No. No. 74-1618, 519 F.2d 467/(9th Cir., 06/18/1975)

Landowners who unsuccessfully applied for homestead entry on certain land seek to upset the Secretary of the Interior's prior classification of the land in question as "suitable for retention in federal ownership" and thus unavailable for homesteading under the Multiple Use Act of 1974, ELR 41408. Prior Ninth Circuit precedents treat such secretarial land classifications as "committed to agency discretion" and thus immune from judicial review under the Administrative Procedure Act. These must, however, be re-evaluated in light of Citizens to Preserve Overton Park, Inc. v. Volpe, 401 US. 402, 1 ELR 20010 (1971), which drastically limited the applicability of the above language. The test is now whether the Multiple Use Act, in empowering the Secretary to classify lands, confers such broad discretion that "the court cannot discern from the language of the statute, or from legislative intent, a legal basis upon which to review the Secretary's exercise of his discretion in the instant case." On its face, the statute "breathe[s] discretion at every pore," listing a number of factors to guide the Secretary but establishing no standards to bind his decision. Nor have plaintiffs alleged any legal violation in this case, although couched in terms of abuse of discretion, their complaint alleges no more than their belief that the Secretary here made an error of judgment, a wrong decision. Since plaintiffs have raised no issue that the Secretary, in classifying the lands in question, acted contrary to law or beyond his discretion, the district court properly concluded that it lacked jurisdiction under the APA to hear the case. Nor, since the secretarial decision at issue was broadly discretionary, does jurisdiction lie under the Mandamus and Venue Act, 28 U.S.C. § 1361. The district court's grant of summary judgment for defendants is affirmed.

Counsel for Plaintiffs
Ray Strickland
Sam Lorimer
pro se

Counsel for Defendants
Richard S. Alleman, Asst. U.S. Attorney
Federal Building
230 N. First Ave.
Phoenix, Ariz. 85025
(602) 261-3011

George R. Hyde
Eva Datz
Department of Justice
Washington, D.C. 20530

Barnes, J. for himself, Choy & Goodwin, JJ.