Johnson v. Russell

Civ. Act. No. A-70-CA-136 (W.D. Tex. February 12, 1971)

Secretary of Interior's grant of federal funds to Texas for acquisition of lands on Mustang Island for state park purposes pursuant to Land and Water Conservation Fund Act, 16 U.S.C. § 4601 et seq, set aside because not in accordance with statewide comprehensive outdoor recreation plan as required by that statute. The Secretary's approval of the application for grant by the state also violated his own regulations implementing the Land and Water Conservation Fund Act because in that application the state failed to comply with land appraisal requirements of those regulations and the application was not filed with approval of appropriate state officials. The Secretary also failed to comply with state and regional clearinghouse requirements of Bureau of the Budget (OMB) Circular A-95 and Department of Interior's rules implementing that directive. The challenged actions of the Secretary and his delegates, though involving discretionary power, were not so committed to agency discretion by the Land and Water Conservation Fund Act as to bar judicial review under the Administrative Procedure Act. This action cannot be maintained as a class action because alleged class is not sufficiently defined. However, the individual claimants have stated a cognizable claim and have sufficiently alleged injury in fact and interests protected by the relevant statutes so as to warrant a denial of defendants' motion to dismiss.

Counsel for Plaintiff:
W. Robert Brown
510 Gulf Building
Houston, Texas 77002
(713) 223-4151

Counsel for Federal Defendants:
Seagal Wheatley U.S. Attorney
204 Austin National Bank Building
Austin, Texas
(512) 472-5494

Counsel for State Defendants:
W. O. Schultz II Asst. Attorney General
Box 12548, Capitol Station
Austin, Texas 78711
(512) 475-2501

[1 ELR 20481]

Roberts, J.,

MEMORANDUM OPINION AND ORDER GRANTING INJUNCTIVE RELIEF

This suit is brought by Pearce Johnson, Chairman of the Texas Parks and Wildlife Commission and three other interested persons, in their individual capacities and as representatives of "all Texas citizens who are for the orderly development of Texas parks and recreational facilities in accordance with the State Comprehensive Outdoor Recreation Plan" (SCORP), to enjoin a purchase by the state of certain property on Mustang Island for the purpose of creating a state park. Defendants are the Secretary of the Interior and his Department, two members of the Texas Parks and Wildlife Commission, members of the Commission's executive staff, the state comptroller and treasurer, and an owner of the property in question.

Mustang Island is a barrier island on the Gulf Coast approximately six miles east of Corpus Christi, Texas, a substantial portion of which is owned by Mrs. Sam Wilson, Jr. and others. In early December, 1970, two of the three members of the Texas Parks and Wildlife Commission signed and submitted to the Bureau of Outdoor Recreation, Department of the Interior, an application for federal matching funds under the Land and Water Conservation Act to help finance the state's acquisition of 3,965 acres of the Wilson property for development as a state park. Under authority delegated by the Secretary of the Interior, the acting Director of the Bureau of Outdoor Recreation subsequently approved the application, and federal funds in the amount of $2,181,125.00, representing one-half the purchase price, were deposited in the state treasury for payment to the sellers as soon as the state obtained necessary matching funds through the sale of securities in the state's park development fund.

At this point, plaintiffs herein applied for a temporary restraining order, alleging that the proposed Mustang Island acquisition had been approved by the Secretary in violation of the Land and Water Conservation Act and the regulations of the Bureau of Outdoor Recreation, as well as certain provisions of state law, and that the state would suffer irreparable harm to its planned program of park acquisition and development through the depletion of state funds should the purchase of the land in question be consummated as planned. On December 29, 1970, this Court GRANTED the temporary restraining order requested, pending a further hearing on preliminary injunction. Defendants promptly prosecuted an emergency appeal of this Order to the Fifth Circuit Court of Appeals, and on December 31, 1970, Circuit Judge Joe Ingraham entered an Order granting a "stay" of this Court's temporary restraining order pending determination of the appeal by a panel of that court. Since Judge Ingraham's order, by its express terms, did not purport to affect the jurisdiction of this Court to proceed with the merits of the case, and because defendants elected to maintain the status quo because of their uncertainty as to the precise effect of that order, this Court subsequently conducted a full hearing on preliminary injunction and enters this memorandum opinion and order pursuant to the determinations of fact and law made therefrom. It is the conclusion of this Court that an injunction must issue enjoining the use of federal funds for the Mustang Island acquisition until the requirements imposed on the Secretary by the Land and Water Conservation Act and by the regulations of the Bureau of Outdoor Recreation have been met.

PRE-TRIAL MOTIONS

Prior to the hearing on preliminary injunction, various motions were tendered to the Court by one or more of the defendants. These included: motions by all defendants to dismiss for lack of jurisdiction or for failure to state a claim upon which relief may be granted; motions by defendant Wilson and state defendants to dismiss to the extent the suit is maintained as a class action and to abstain from the exercise of jurisdiction; a motion by federal defendant to dismiss for lack of standing to bring suit; and motions by defendant Wilson to advance and consolidate trial on the merits with the hearing on preliminary injunction, and to require plaintiffs to post bond. This lawsuit arose very rapidly, foreclosing the usual discovery and other pre-trial procedures; the Court therefore deemed it appropriate to defer decision on these motions until enough evidence had been adduced at the hearing to permit clearer delineation of the issues in controversy. Since this point was not reached until relatively late in the proceedings, the Court has further seen fit to wait and dispose of the motions in this memorandum opinion as follows:

A. Jurisdiction. The three jurisdictional grounds alleged in the complaint are 28 U.S.C. § 1331, 1361, and the judicial review provisions of the Administrative Procedure Act, 5 U.S.C.A. § 701-706. The sole brief advanced in support of the motions quite properly addresses only the first two grounds alleged, because it is quite clear that the Administrative Procedure Act does not extend the jurisdiction of federal courts to cases not otherwise within their competence. 5 U.S.C.A. § 703 provides in pertinent part:

"The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action, including actions for . . . writs of prohibitory or mandatory injunction . . ., in a court of competent jurisdiction."

It has consistently been held that this provision does not of itself establish jurisdiction over an action not otherwise cognizable by the Federal Courts. Pan American World Airways, Inc. v. C.A.B., 392 F.2d 483 (D.C. Cir. 1968); Ove Gustavsson Contracting Co. v. Floete, 278 F.2d 912 (2d Cir. 1960); Kansas City Power & Light Co. v. McKay, 225 F.2d 924 (D.C. Cir. 1955). Of the remaining jurisdictional grounds alleged, the Federal Mandamus Act, 28 U.S.C. § 1361, is clearly not a basis for subject matter jurisdiction in this type of suit. Historically, mandamus has been used to compel the performance of a ministerial duty, and before a writ may issue it must appear that the claim is clear and certain, and that the duty of the officer involved is ministerial, plainly defined, and peremptory. The duty sought to be exercised must be a positive command and so plainly prescribed as to be free from doubt. Prairie Band of PottawatomieTribe of Indians v. Udall, 355 F.2d 364 (10th Cir. 1966), cert. denied, 385 U.S. 831 (1966). This is obviously not such a case.

However, the complaint does present a substantial federal question cognizable under 28 U.S.C. § 1331, namely whether the Secretary of the Interior has exceeded the statutory authority conferred upon him by 16 U.S.C.A. § 4601-8 by approving a state land acquisition project that is [1 ELR 20482] not in accordance with the statewide comprehensive outdoor recreation plan required by the statute. Defendants' contention that the action taken by the Secretary was within the range of discretion granted to him by § 4601-8 merely states the converse of the question presented. Plaintiffs assert a substantial claim in part founded directly upon a federal statute that has not yet been construed in any reported decision, and since the requisite jurisdictional amount is clearly in controversy, this Court has jurisdiction.

B. Abstention. Alternatively, the Court is urged to abstain from the exercise of its jurisdiction under the doctrine established in Railroad Commission of Texas v. Pullman Co., 312 U.S. 96 (1941).Movants assert that the case involves "overwhelmingly predominant" questions of state law, such as the interpretation of Texas statutory and constitutional provisions and the validity under Texas law of the action of Commissioners Jersig and Gilvin in undertaking to purchase Mustang Island, which, if decided in favor of the plaintiffs by the Texas state courts, would prevent the use of state funds and thus obviate the necessity to decide prematurely a question of federal law, since federal matching funds are available only if state funds are available. There are at least three impediments to this course of action. First, although the Pullman doctrine is very much alive today, Reetz v. Bozanich, 397 U.S. 82 (1970), it rests upon the principle that where unsettled state law questions are enmeshed with federal constitutional questions, and where resolution of the state law questions in the state courts would obviate the necessity to consider the constitutional issues, the court should stay the exercise of its jurisdiction pending such state court determinations in order to avoid deciding a constitutional decision unnecessarily. City of Meridan v. Southern Bell Tel. & Tel. Co., 358 U.S. 639 (1959). In the present case no federal constitutional question is involved, and the applicability of the doctrine is therefore doubtful. Second, the Texas Supreme Court has held, in United Services Life Insurance v. Delaney, 396 S.W.2d 855 (1966), that the state court declaratory judgment action resulting from the abstention procedure requires Texas state courts to render advisory opinions in contravention of the Texas Constition. This decision appears to foreclose abstention by stay in Texas. Third, abstention invariably causes substantial delay, and the Court is of the opinion that it is in the best interest of all parties to bring this controversy to a close as rapidly as possible. For these reasons, abstention will not be ordered.

C. Class Action.Without proceeding to any of the other contentions made in the motion, this Court agrees that the phrase "all Texas citizens who are for the orderly development of Texas Parks and Recreational Facilities in accordance with the State Comprehensive Outdoor Recreation Plan" does not identify an adequately defined and clearly ascertainable class of persons, and that this suit therefore may not properly be maintained asa class action under Rule 23, Federal Rules of Civil Procedure, DeBremaecher, etc. v. Herman Short, No. 29850 (5th Cir. November 3, 1970) (Slip Opinion); Weisman v. M.C.A. Inc., 45 F.R.D. 258 (D.Del 1968); Hardy v. United States Steel Corporation, 289 F. Supp. 200 (N.D.Ala. 1967). However, the remedy for this defect is not dismissal if the action is still maintainable by the plaintiffs in their individual capacities. Since this Court also holds that the individual plaintiffs state a cognizable claim, all references to a class action in the pleadings will be ordered struck and the plaintiffs will be allowed to proceed individually. Rule 23(d)(4), Federal Rules of Civil Procedure.

D. Standing. Although the question of standing has long been a "complicated specialty of federal jurisdiction, the solution of whose problems is in any event more or less determined by the specific circumstances of individual situations," United States ex. rel. Chapman v. F.P.C., 345 U.S. 153, 156 (1953), recent decisions of the Supreme Court have considerably broadened and simplified the injuiry. The concept now "focuses upon the party seeking relief, rather than on the precise nature of the relief sought," Jenkins v. McKeithen, 395 U.S. 411, 423 (1969), and is satisfied if the plaintiff sufficiently alleges (1) an "injury in fact, economic or otherwise," and (2) an interest that is "arguably within the zone of interests to be protected or required by the statute or constititional guarantee in question." Data Processing Service v. Camp, 397 U.S. 150, 153 (1970); Arnold Tours, Inc. v. Camp, U.S. , 27 L. Ed. 2d 179 (1970). The Data Processing opinion emphasizes that the standing conferred upon persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute" by the Administrative Procedure Act, 5 U.S.C. § 702, may stem not only from economic injury, but from "aesthetic, conservational and recreational" values. 397 U.S. at 154. Such values have specifically been recognized as bases for standing in recent lower federal court decisions, though with differing results on individual facts. E.g., Scenic Hudson Preservation Conference v. F.P.C., 354 F.2d 608 (2d Cir. 1965); Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6th Cir. 1967); Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir. 1970); Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970); Alameda Conservation Association v. State of California, No. 22,961 (9th Cir. Jan. 23, 1971) (Slip opinion). These decisions leave no doubt that if the tests established by the Data Processing opinion are met, plaintiffs may not be denied standing simply because the factual injuries they allege are to recreational rather than economic values.

As to the injury in fact requirement, the plaintiffs in the present case allege that the proposed acquisition of Mustang Ilsand as a state park is a serious departure from SCORP, which will jeopawrdize the orderly acquisition and development of state parks in other areas of the state for several years by depleting state funds available for these purposes. The complaint further reveals that none of the plaintiffs are residents of the Corpus Christi area, but rather reside in other areas of the state that apparently would be directly and adversely affected by the proposed acquisition. Moreover, each plaintiff has testified that he has used existing state park facilities with some degree of regularity, and that he has a keen personal interest in the acquisition and development of other parklands in localities other than the Corpus Christi area. This is particularly evident in the case of Plaintiff Walters, County Judge of Polk County, Texas, who testified that he has represented his community before the Parks & Wildlife Commission and performed other instrumental services in connection with a planned acquisition project at Lake Livington, Polk County, which would allegedly be foreclosed by lack of state and federal funds if the Mustang Island acquisition is consummated. It therefore appears that if the alleged violation of SCORP will have the adverse statewide results claimed, each of the plaintiffs would obviously sustain some degree of injury to his personal recreational interests. At some point a line must be drawn between substantial and insubstantial injury in fact; otherwise the concept of standing would have no meaning at all. However, in view of the increasingly liberal trend of recent decisions in this area, this Court is inclined to the view that it is better to resolve doubtful questions in favor of the plaintiff on the standing issue, and that these plaintiffs have in their private capacities alleged sufficient injury in fact to meet the requirement of the law.

If more is needed, it should be observed that three of the plaintiffs stand in an official posture with respect to this controversy. Plaintiff Johnson, as the appointed Chairman of the Texas Parks and Wildlife Commission is the executive head of the agency, responsible under state law for the administration of outdoor recreational resources. He also is the appointed State Liaison Officer in accordance with the requirement of the BOR Manual. Plaintiff Atwell is a State Representative currently serving on the House Revenue and Taxation Committee and Legislative Budget Board of the Texas Legislature, both of which bear responsibility in the allocation of state funds for outdoor recreation. Plaintiff Kennard is a State Senator currently serving on the Senate Parks and Wildlife and Finance Committees. Each of these plaintiffs therefore occupies a position of public trust and responsibility in respect to the state's outdoor recreation policy, and should be accorded standing to litigate questions affecting that policy. This conclusion is aided by the holding in Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967), where the court granted a state banking commissioner standing to intervene in an action to enjoin the Comptroller of the Currency from authorizing a national bank to open a branch office in violation of state law. The court stated:

"Administrative cases, as the present one demonstrates often vary from the norm. We should not be niggardly in gauging the interest of a state administrative officer in the validity of what his federal counterpart has done in an area of overlapping fact and intertwined law. We not only have the greater impetus to intervention that inheres in administrative cases, but in addition the 'interest' of the state commissioner is underlined by the circumstances that the regulation of national banking is an area in which Congress, in the exercise of delegated federal power, has for various policy reasons decided to adopt and incorporate state law on issues of common concern. This admixture of national and state policies, attaching national legal force to the state policy, yields the corollary that a state official directly concerned in effectuating the state policy has an 'interest' in a legal controversy involving the Comptroller which concerns the nature and protection of the state policy." 385 F.2d at 900.

[1 ELR 20483]

Although this decision was made within the framework of the intervention provisions of Rule 24, Federal Rules of Civil Procedure, the same principle has been applied in a similar case to uphold the standing of a State Superintendent of Banks under the Administrative Procedure Act. Leuthold v. Camp, 273 F. Supp. 695 (D.Mont. 1967); aff'd, 405 F.2d 499 (9th Cir. 1969). This rationale is especially important where, as here, the duties of Plaintiff Johnson as State Liaison Officer and as Chairman of the Parks and Wildlife Commission inherently involve an interrelationship of state and federal law due to the involvement of both state and federal financing. The federal defendant must consider not only federal law, regulations, and Executive Orders, but also the State Comprehensive Outdoor Recreation Plan ("SCORP") and relevant state law in considering the application presented to it for the acquisition of Mustang Island. Plaintiff Johnson, in his official capacities, must also give consideration to state law and the SCORP, as well as to the Federal Land and Water Conservation Fund Act and the regulations promulgated thereunder in the BOR Manual. This admixture of national and state policies clearly provides a basis for an allegation of "injury in fact" to the interest of Plaintiff Johnson in properly and responsibly performing his public duties, and it is similarly deemed sufficient in respect to Plaintiffs Atwell and Kennard.

Plaintiffs clearly meet the second test of standing by alleging interests that are "arguably within the zone of interests to be protected or regulated by the statute . . . in question." As evidenced by the statement of Legislative intent contained in the statutory provisions establishing the Federal Outdoor Recreation Program¹ and federal assistance to states under the Land and Water Conservation Act,² it was the clear purpose of Congress to protect the interest of all citizens in the acquisition, development and use of outdoor recreational facilities. Since all of the plaintiffs allege that they are interested in the orderly acquisition and development of parks in accordance with SCORP, a planning document required by the statute in question, they arguably demonstrate in their private capacities interests within the zone of interests to be protected by the statute. Moreover, upon analysis under the principle of Leuthod v. Camp, supra, Plaintiffs Johnson, Atwell and Kennard demonstrate other such interests in their official capacities.

Indeed, it is difficult to imagine anyone more logically suited to bring this action than these plaintiffs. Each is, by virtue of his official status or activities, in a position to understand and appreciate more fully than the ordinary citizen the range of factors bearing on parkland acquisition and the extent to which SCORP reflects these factors in land acquisition priorities. Each is therefore in a better position than the ordinary citizen to allege and attempt to prove that the Mustang Island proposal is not in accordance with SCORP. This Court accordingly holds, because of all the foregoing reasons, that all plaintiffs are persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute" within the meaning of 5 U.S.C. § 702, as that provision has been construed by the Supreme Court, and therefore have standing to bring this suit.

E.Failure to State a Claim. In the only brief submitted in support of this motion to dismiss, defendants seek to characterize the complaint wholly as a collateral attack upon, or appeal from, the administrative determinations of the Texas Parks and Wildlife Department. Defendants would thus apparently have the Court ignore the clearly and specifically pleaded claims that, by approving the application submitted to BOR by Commissioners Jersig and Gilvin, the Secretary of the Interior exceeded his statutory authority under 16 U.S.C.A. § 4601-8 and violated his own regulations. These claims clearly fall within the scope of judicial review permitted under the Administrative Procedure Act, 5 U.S.C. § 708(1)(A)(C) and, if they are proved, injunctive relief is an appropriate remedy. Judicial review of the Secretary's actions may in many cases be narrowly limited to determining whether he has acted arbitrarily and capriciously, e.g. Zwang v. Udall, 371 F.2d 634 (9th Cir. 1967), or interpreted his regulations in an inconsistent or plainly erroneous manner, e.g., Gray v. Johnson, 395 F.2d 533 (10th Cir. 1968), or in a manner plainly beyond the bounds of reason or authority, Udall v. Delschlaeger, 389 F.2d 974 (D.C. Cir. 1968). Yet in view of the patently inadequate grounds asserted in support of this motion, it appears again necessary to recite the time-encrusted rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 46 (1957); Westinghouse Electric Supply Co. v. Wesley Construction Co., 414 F.2d 1280 (5th Cir. 1969). The motion to dismiss for failure to state a claim is accordingly denied.

F.Advancement and Consolidation of Trial on Merits. This motion, which plaintiffs do not oppose, is advanced subject to any contested issues of material fact found by the Court to exist, as to which defendant Wilson and the state defendants demand trial by jury. The Court does find that there are such issues in the case, but since this is an action wholly for injunctive relief there is no constitutional or statutory right to jury trial thereof within the meaning of Rule 38(a), Federal Rules of Civil Procedure. United States v. State of Louisiana, 339 U.S. 699 (1950); see, 2B BARRON AND HOLTZOFF, FEDERAL PRACTICE AND PROCEDURE § 875 (Wright ed. 1961). Defendants' demand for jury trial is accordingly denied, and there being no further impediment to advancement and consolidation of trial on the merits with the hearing on preliminary injunction, this memorandum opinion and order shall constitute the final determination by this Court on the merits of this lawsuit. see Rule 65(a)(2), Federal Rules of Civil Procedure.

G. Motion to Require Plaintiffs to Post Bond. The basis of this motion is the allegation of defendant Wilson, which is not supported by sworn affidavit or by any evidence adduced at the hearing, that the failure of the State of Texas to comply with its sales agreement as a result of this proceeding has deprived her of the use of the agreed purchase price, the value of which (calculated at the rate of 6%) amounted to $14,273.26 for the period between December 28, 1970 and January 19, 1971, and has increased in the amount of $647.16 each day thereafter. She therefore requests an order requiring plaintiffs in their capacity as private individuals to post a good and sufficient bond in an amount that will adequately secure her, and her co-owners against any damages she may ultimately suffer from any injunctive relief found to be wrongfully granted.

Despite the apparently mandatory terms of Rule 65(c), Federal Rules of Civil Procedure, which provide for security in such cases, it is generally held that the requiring of bond and the amount thereof are matters resting with the discretion of the court. Urbain v. Knapp Bros. Mfg. Co., 217 F.2d 810 (6th Cir. 1954), cert. denied, 349 U.S. 930 (1954); Halpert v. Engine Air Service, 212 F.2d 860 (2d Cir. 1954), cert denied, 348 U.S. 854 (1954); Powelton Civic Home Owners Ass'n. v. H.U.D., 284 F. Supp. 809 (E.D. Pa. 1968). It further appears that the security provisions of Rule 65 were intended to protect against damages resulting from the improvident issuance of an injunction in advance of full hearing, United States v. Onan, 190 F.2d 1 (8th Cir. 1951), a consideration that is now moot. For this reason, and because the Court believes the damage asserted is speculative in light of the absence of substantiating evidence, no bond will be required of plaintiffs.

THE MERITS

A. scope of Review.

A preliminary issue is whether the action of the Secretary in approving the Mustang Island project application "is committed to agency discretion by law" within the meaning of Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 701, and therefore not susceptible to judicial review. Since almost every agency action involves some degree of discretion, the analytical problem presented has accurately been stated to be whether the particular discretionary act challenged falls within the prohibition of Section 10 or merely "involves" discretion that is nevertheless reviewable. Ferry v. Udall, 336 F.2d 706, 711 (9th Cir. 1964); 4 DAVIS, ADMINISTRATIVE LAW TREATISE § 28.16.

This determination largely depends upon the legislative intent discernible from the relevant statutory language. Admittedly, Section 5 of the Land and Water Conservation Act of 1965, 16 U.S.C.A. § 4601-8, appears to confer a wide measure of discretion upon the Secretary to administer financial assistance to states for the planning, acquisition and [1 ELR 20484] development of outdoor recreation resources. For example, under subsection (a) he is authorized to make payments to the states as provided by the statute "subject to such terms and conditions as he considers appropriate and in the public interest to carry out the purposes" of the Act, and under subsection (c) each state need only bear its share of the costs of acquisition in a manner "satisfactory to the Secretary." Moreover, in subsection (b) Congress appears to have foreclosed judicial review of the Secretary's apportionment among the states of funds appropriated and available for state purposes by providing that his determinations, under a formula itself granting wide discretion, "shall be final."

However, in drafting the statutory provisions relied upon by plaintiffs in this suit, Congress spoke in mandatory terms. Subsection (d) requires a "statewide comprehensive outdoor recreation plan" prior to consideration by the Secretary of financial assistance for acquisition or development projects. Although the adequacy of such plan rests with the "judgment of the Secretary," the plan must contain "an evaluation of the demand for and supply of outdoor recreation resources and facilities in the state" and "a program for the implementation of the plan." Further, it must "take into account relevant Federal resources and programs" and must be "correlated as far as practicable with other State, regional, and local plans." Subsection (c) requires that land acquisition projects be "in accordance with the statewide comprehensive outdoor recreation plan" as a condition to the providing of assistance by the Secretary. Had the Congress wished, it could have couched these provisions in permissive language and inserted terms purporting to limit judicial review, as it did elsewhere in the statute. That Congress did not do so warrants the conclusion that it did not intend to grant to the Secretary unbridled discretion to approve any project that might meet his fancy, and this Court so holds. The action of the Secretary in approving a land acquisition project under Section 5(e) of the Land and Water Conservation Act, 16 U.S.C.A. § 4601-8(e), is not "committed to agency discretion by law" under Section 10 of the Administrative Procedure Act, and is reviewable along with the regulations adopted by the Secretary to govern such approvals.

The Court has considered the actions of administrative agencies held non-reviewable in Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309 (1958); Kendler v. Wirtz, 388 F.2d 381 (9th Cir. 1968); and Ferry v. Udall, 336 F.2d 381 (9th Cir. 1964), but finds the statutory schemes and agency actions involved therein sufficiently different from the case at bar to render those decisions not in point. Moreover, the recent judicial tendency to hold reviewable, explicitly or implicitly, the actions of the Secretary of the Interior under a wide variety of statutory schemes cannot be ignored. See, Udall v. Tallman, 380 U.S. I (1965); Udall v. Oelschlaeger, 389 F.2d 974 (D.C. Cir 1968); Harvey v. Udall, 384 F.2d 883 (10th Cir. 1967); Zwang v. Udall, 371 F.2d 634 (9th Cir. 1967); Pan American Petroleum Corporation v. Udall, 352 F.2d 32 (10th Cir. 1965); Pressentin v. Seaton, 284 F.2d 195 (D.C. Cir. 1960); Johnson v. Udall, 292 F. Supp. 738 (C.D. Cal. 1968).

The scope of review permitted by Section 10 of the Administrative Procedure Act includes all relevant questions of law, and of interpretations of statutes and agency actions that are necessary to a determination of whether the agency action challenged is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C.A. § 706. In respect to the actions of the Secretary of the Interior, however, the Supreme Court has recently stated:

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officer or agency charged with its administration. . . . "Particularly is this respect due when the administrative practice at stake 'involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion, of making the parts work smoothly while they are yet untried and new.'" Power Reactor Co. v. International Union of Electrical, etc., 367 U.S. 396, 408. . . . When the construction of an administrative regulation rather than a statute is in issue, deference is even more clearly in order. ". . . [T]he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation." Bowles v. Seminole Rock Co., 325 U.S. 410, 413-414. . . . Udall v. Tallman, 380 U.S. I, 16-17 (1965).

These standards of review must govern any consideration by this Court of the statutory and regulatory violations alleged by plaintiffs.

B. The Secretary Exceeded his Statutory Authority in Approving the Application.

As noted above, Section 5(e) of the Land and Water Conservation Act provides that the Secretary may provide assistance for land acquisition if the project is "in accordance with the State comprehensive plan." Plaintiffs allege that the Secretary violated this provision in approving the Mustang Island application because the land in question was not included in the priorities for acquisition of Gulf Coast land set out in SCORP. In response, defendants first contend that even if the application was not in accordance with SCORP, the Secretary was free to approve the project under the discretion granted to him by the Act, and, alternatively, that the project was in fact in accordance with SCORP as the Secretary interpreted that document. Although under the authorities cited above the Secretary's position on both issues must be accorded great weight, this Court cannot agree with either proposition.

The contention that the Secretary may, in his discretion, simply disregard the state plan in granting financial assistance runs contrary to the plain language of Section 5(e). It further contravenes the Congressional intent manifest throughout the Act to preserve the integrity of state comprehensive planning against hastily considered and approved projects resulting from the influence of regional political pressures or temporarily popular causes upon the state and federal officials charged with administering outdoor recreation programs. The clear legislative purpose was to restrict federal aid under the Act to projects that fit into a comprehensive state scheme designed to promote the orderly and systematic acquisition and development of outdoor recreation resources in accordance with empirically determined state needs and priorities. The statements of legislative purpose contained in Section (b) of the Act, 16 U.S.C.A. § 4601-4, and the somewhat meager legislative history on the point, which emphasizes the "pivotal" and "predominant" vote [sic] to be played by the states in the outdoor recreation field reinforce this view. SEN.REP.NO. 1364, 88th Cong. 2d Sess. (1964), [1964] 2 U.S.CODE CONG. & ADMIN. NEWS 3633, 3658.

The issue is thus narrowed to whether the Secretary through his delegees, properly determined that the Mustang Island application was in accordance with SCORP. Under Section 10 of the Administrative Procedure Act, 5 U.S.C.A. § 706, review of the Secretary's factual determination may not proceed as a trial de novo, but must rather be limited to ascertaining whether there was a reasonable basis for the Secretary's conclusion. This Court may not substitute its judgment for that of the administrative agency. Gray v. Powell, 314 U.S. 402 (1941); Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965). Yet the evidence adduced at the hearing conclusively demonstrates the Bureau of Outdoor Recreation did not have before it facts affording a reasonable basis for its conclusion that the Mustang Island application was "in accordance with the State comprehensive plan."

In making this determination, only the testimony of Mr. Maurice Arnold, Regional Director, Mid-Continent Region, Bureau of Outdoor Recreation, and his records pertaining to the project in question (Government Exhibit I) have been considered, and the Court is satisfied that this reflects the entire factual basis upon which Bureau approval of the project was given.

Both the testimony and the records show that SCORP itself (Plaintiffs' Exhibit 33A-33F) was considered by Mr. Arnold's staff in making its recommendation to him, and by Mr. Arnold in recommending approval of the project to the Director of the Bureau. This document consists in the main of a voluminous and exhaustive statistical analysis of the demand for and the supply of the state's existing and projected outdoor recreational resources in nine geographical Planning Regions, accompanied by policy guidelines, special studies, and recommendations. Mustang Island is located in Planning Region IX, which includes approximately the southern half of the Texas Gulf Coast. The remainder of the Texas Gulf Coast, and consequently the remainder of comparable beach land in the state, is located in Planning Region VIII. In respect to the state's land acquisition program, the plan initially states: "Until additional data is obtained, a more specific land acquisition program other than that designated in regional needs (Sec. 4.0) cannot be made." 0 SCORP 42 (Plaintiffs' Exhibit 32A). Section 4.0 identifies the shortage of government-administered land along the coast as a major problem, SCORP 4.0.0.1 (Plaintiffs' Exhibit 33E), but in a subsequent statewide land analysis notes that "The most critical areas of shortages at the present for land appear to be in Regions I, VI, VII, and VIII." SCORP 4.0.1.0 (Plaintiffs' Exhibit 33E). Section 4 specifically refers to the Texas Gulf Coast Study, SCORP 7.5.1 (Plaintiffs' Exhibit 33F), for a fuller analysis of land acquisition considerations along the coast. SCORP [1 ELR 20485] 4.0.0.1 (Plaintiffs' Exhibit 33E). This study, which is characterized in the preface to Section 7 of SCORP as "almost a comprehensive plan in itself," fully discusses, and recommends for acquisition and development, five beach areas along the Texas Gulf Coast. Four of these areas lie in the upper and central coast in Planning Region VIII and one lies near Brownsville in Planning Region IX, but none of the areas recommended include Mustang Island. SCORP 7.5.1.2 (Fig. I), 7.5.1.3 (Plaintiffs' Exhibit 33F). With the exception of the area near Brownsville, which the study recommends for acquisition because of the peculiar problems of access to public beach lands experienced in that locality, these recommendations are fully substantiated by the statistical data compiled on Planning Regions VIII and XI. e.g., SCORP 2.0.0.3., Figs. 10-11 (Population density), 2.0.1 Table VB, C (percent of state population), 2.8.2.15.2, 2.9.2.15.2 (demand for swimming beaches) (Plaintiffs' Exhibit 33A); SCORP 3.8.2.15.3, 3.9.2.15.3.2 (supply of open Gulf salt water beaches) (Plaintiffs' Exhibit 33D); SCORP 4.8.2.15B, 4.9.2.15.B (Need for swimming beaches) (Plaintiffs' Exhibit 33E). It is abundandly clear from a reading of the above-cited materials that the Mustang Island application is not in accordance with the land acquisition program established by SCORP. The foregoing analysis has not, however, been set out in an attempt to substitute this Court's own judgment for that of the responsible officials in the Bureau of Outdoor Recreation. It does show conclusively that to the extent these officials relied solely upon the literal provisions of SCORP in determining that the Mustang Island application was in accordance with the statewide comprehensive plan, their determination lacked a reasonable basis.

It is also clear from the evidence, however, that the "state comprehensive plan" is not, and indeed could not be, a static concept limited to the literal provisions of SCORP.This document which was prepared in 1967, contains frequent references to the tentative nature of the data upon which it is based. It further says:

"The Plan is not an end in itself, but rather an instrument designed to accomplish an end. As such it will have to be continually revised and refined to account for new innovations, recreation trends, and changing conditions, . . . ." SCORP 0. (Plaintiffs' Exhibit 33A).

In particular, the Texas Gulf Coast Study indicates a need for a more comprehensive study of the coast in light of the roles to be played by governmental agencies at all levels in perpetuating coastal resources for the public. SCORP 7.5.1.3 (Plaintiffs' Exhibit 33F). Realistically speaking, SCORP appears to be intended as a working framework to which the state planners may add newly-acquired data and further conclusions and recommendations as these become necessary. This concept of the state comprehensive plan seems entirely consistent with the purposes of the Land and Water Conservation Act so long as the identity of the planning process within the Parks and Wildlife Department remains intact. Such additions to the plan, perhaps in the form of formal amendments, official memoranda, priority lists or other indicia of changes to the basic plan, might therefore afford a reasonable basis for the Bureau's conclusion that the Mustang Island application was in accordance with the plan. However the record contains not one shred of evidence that such additional indicia of the plan's current content, if any, were before the Bureau of Outdoor recreation at the time the application was approved. Defendants have instead offered only out-of-context statements from SCORP indicating the general desirability of acquiring Gulf Coast Land, together with other documents bearing no meaningful relation to SCORP or to the planning process used by the Parks and Wildlife Department (Defendants' Exhibits G, H, I, J and M). Since none of these provide any reasonable basis for the Bureau's determination, this Court holds that the Director of the Bureau of Outdoor Recreation, as delegee of the Secretary of the Interior, exceeded his statutory authority under Section 5(e) of the Land and Water Conservation Act by approving the application in question.

C. The Secretary Violated His Own Regulations in Approving the Application.

The Bureau of Outdoor Recreation has published and made available for sale through the Superintendent of Documents, U.S. Government Printing Office, an Outdoor Recreation Grants-in-Aid Manual (BOR Manual, Plaintiffs' Exhibit 42) that provides information concerning federal aid to the states under the Land and Water Conservation Act and establishes regulations governing the submission of project requests. Plaintiffs have introduced evidence that, unless the Bureau's interpretation of the regulations be accepted, clearly shows these regulations to have been violated by the Bureau in acting on the application. Again, the Court is aware that the agency's interpretation of its own rules is entitled to controlling weight unless it is "plainly erroneous or inconsistent with the regulation." Udall v. Tallman, supra, at 16-17. However, regulations validly prescribed by an administrator are binding on him as well as the citizen even when the agency action under review is discretionary in nature. Service v. Dulles, 354 U.S. 363 (1957). Therefore, unless the Bureau's approval of the application in apparent violation of its regulations can be saved by the agency's interpretation of those regulations, it must be set aside.

1. Appraisal Requirements.

Perhaps the most obvious discrepancy in this regard is the failure to include in the application an appraisal of he property sought to be purchased. Section 675.2.1 of the BOR Manual states that: "Generally, the market value standard will be used as the basic measure of Bureau assistance on acquisitions . . . . Fund assistance shall be based upon evidence of this value." Section 675.2.3 requires each acquisition to be documented by an appraisal report and evidence of purchase price and of title. Section 675.2.4.A provides that the "Bureau will review appraisal reports for adequacy and consistency, including a review of the qualifications of appraisers." Section 675.2.5.A provides specifically that if the project will cost $25,000 or more the prescribed formal appraisal requirements must be met. Other requirements concerning appraisals are contained in Sections 675.2.1.B, 675.2.1.6, and a letter amendment dated June 20, 1969. The undisputed evidence shows that at no time prior to the actual transfer of federal funds into the state treasury did not official submitting the application comply with any of these provisions.

Under the Bureau's interpretation of the regulations, however, defendants assert that the Bureau waived the appraisal requirements or alternatively that under what was styled the "project time" theory, no appraisal was required until "final payments" was made by the Bureau.

Both of these interpretations are plainly inconsistent with the regulations. As to the waiver contention, Section 675.2.4B of the Manual does provide that the Bureau may waive its documentation requirements "upon request or upon its own initiative," but that "when a waiver is needed, it should be requested by the State Liaison Officer." However there is no evidence that the Bureau ever waived the requirements, nor that the State Liaison Officer ever requested such a waiver, prior to the transfer of federal funds. As to the "project-time theory", the Bureau contends that the transfer of federal funds in this case was merely an advance under Section 675.26.2 of the Manual, and that in accordance with Section 675.2.2 when advance payments are made "the level of Federal participation will later be determined as the amount which is adequately supported." On this basis, the Bureau asserts that the appraisal required need only be submitted some time within a year after the "advance" was given.While the legality of the entire procedure for "advance payments" may well be suspect in light of Section 3648, Revised Statutes of the United States, 31 U.S.C.A. § 529³, it suffices to observe that the interpretation of the Bureau, insofar as it applies to the fact situation in this case, is wholly inconsistent with the whole text of the regulations cited. It is clear that the only impediment to full and final conclusion of this entire transaction on December 31, 1970, was the temporary restraining order entered by this Court on December 29, 1970, and that up to and including those dates, no mention of an "advance" was ever made in any of the correspondence or other negotiations between the state officials and the Bureau.

2. State Liaison Officer Approval, and Withdrawal of Requests.

Plaintiff Johnson, who is the Chairman of the Texas Parks and Wildlife Commission, is also the appointed State Liaison officer (SLO) prescribed by Section 600.3.6 of the Manual. The regulations provide: "All project proposals from a state, regardless of origin, must be reviewed by the SLO and recommended by him to the Bureau," Section 640.1.1; the agreement forms for the project "must be submitted to the appropriate Regional Office by the State Liaison Officer," Section 660.1.3B; and "An approved project can be withdrawn by the State at any time before the first billing is submitted, at the written request of the SLO," Section 660.2.3. The undisputed evidence shows that Plaintiff Johnson never approved or recommended the Mustang Island application, never submitted any agreement forms to the Regional Office, [1 ELR 20486] and did unsuccessfully request withdrawal of the project following its approval by the Bureau but before the "first billing [was] submitted." The only explanation for this plain inconsistency with the regulations offered by the Bureau was the vague and specious contention that the Bureau frequently "interpreted" the word "will" in the regulations as permissive in meaning, and the word "shall" as mandatory, that the meaning of the term "State Liaison Officer" had undergone some upspecified change since the regulations were drafted and that the cited provisions therefore did not apply to the situation presented in this case. This position is completely refuted by Plaintiffs' Exhibit 61 and 66, which show that the Bureau subscribed to just the opposite interpretation until this suit was filed. Moreover, the "interpretation" offered is simply no interpretation at all, and in the absence of some more concrete explanation, the Bureau must be held to the plain terms of these regulations.

3. State Clearinghouse Comments.

Section 660.1.1 of the Manual, after establishing procedures for obtaining state and regional clearinghouse comments upon proposed projects in accordance with Bureau of the Budget Circular A-95 (Plaintiffs' Exhibit 39), provides that "Each application to BOR must be accompanied by either the comments of the appropriate clearninghouses or a statement that the required procedures were followed and no comments were received." Section 511.2.1A Departmental Manual of the Department of the Interior, which was amended on June 3, 1970, to secure compliance by all Bureaus and offices with Bureau of the Budget Circular A-95, provides that "No applications will be approved unless such procedures are followed" and that "Bureaus and offices shall fully consider the reviews and comments provided through or by the clearinghouses in making a decision to approve or disapprove an application for assistance." In this case, the prescribed procedures for clearinghouse review were not followed, no comments were forwarded with the application, and no state clearinghouse comments were before the Bureau at any time prior to either approval of the project or transfer of federal funds. The Bureau similarly offered no satisfactory "interpretation" that would show compliance by the Bureau with these regulations.

4. Executive Order 11237.

Although this document requires the Secretary to grant assistance under the Land and Water Conservation Act only for projects in urbanized areas which are consistent with the state comprehensive plan, its purpose is to achieve coordination between the Secretary and the Housing and Home Financing Administrator for projects in urbanized areas, and the language relied on by Plaintiffs is merely repetitive of the statutory command. The Court is therefore at the opinion that Executive Order 11237 is not applicable to this case.

5. Summary.

Upon a review of all the evidence introduced at the hearing, the Court finds that no acceptable interpretations were offered by the Bureau to explain the discrepancies between its conduct in approving the Mustang Island application and transferring federal funds and the plain terms of the above-cited departmental and bureau regulations. The Bureau's approval of the project must therefore be set aside until compliance with these regulations occurs.

D. State Law Issues.

Because of the disposition made of the federal issues in this case, it is unnecessary to proceed to the various issues of state law presented by the complaint, and this Court expressly declines to rule upon them. However, in the opinion of this Court, the evidence at the hearing is sufficient to fully substantive plaintiffs' contentions that the application for BOR funds submitted by Commissioners Jersig and Gilvin and the contracts of sale with Mrs. Wilson were not official acts of the Parks and Wildlife Commission, and that implementation of this project would virtually eliminate state funding for acquisition and development of outdoor recreational resources through 1975.

CONCLUSION

This opinion shall constitute the court's findings of fact and conclusions of law in accordance with Rule 52, Federal Rules of Civil Procedure. Plaintiffs have shown themselves clearly entitled to the injunctive relief set out in the order accompanying this opinion.

ORDER

For the reasons set out in the Memorandum Opinion accompanying this Order, it is accordingly

ORDERED, ADJUDGED and DECREED that the approval of federal funds for the acquisition by the State of Texas of approximately 3,965 acres of land on Mustang Island owned by Mrs. Sam Wilson, Jr. and others, heretofore given by the Secretary of the Interior or his lawful delegees in the Bureau of Outdoor Recreation pursuant to the Land and Water Conservation Act, be, and is hereby, SET ASIDE.

It is further ORDERED, ADJUDGED and DECREED that the below-named persons be, and are hereby ENJOINED as follows:

(1) The Secretary of the Interior, and any and all of his delegees within the Bureau of Outdoor Recreation are prohibited from granting any federal assistance under the Land and Water Conservation Act to the State of Texas for the purpose of acquiring lands on Mustang Island, owned by Mrs. Sam Wilson, Jr. and others, pursuant to the application for federal funds made the subject of this suit;

(2) J. R. Singleton, Robert G. Mauermann, Harry D. Jersig and L. P. Gilvin are prohibited from accepting or negotiating any check or warrant, or disposing of any cash, that may have come into their hands, or that may in the future come into their hands, from the federal government by virtue of the proposed purchase by the State of Texas of land on Mustang Island, owed by Mrs. Sam Wilson, Jr. and others, pursuant to the application for federal funds made the subject of this suit;

(3) Mrs. Sam Wilson, Jr., Mr. Robert S. Calvert, Texas Comptroller of Public Accounts, and Jesse James, Texas State Treasurer, are prohibited from accepting or negotiating any check or warrant or disposing of any cash that may have come into their hands, or that may in the future come into their hands, from the federal government by virtue of the proposed purchase by the State of Texas of land on Mustang Island, owned by Mrs. Sam Wilson, Jr. and others, pursuant to the application for federal funds made the subject of this suit.

No provision of this Order shall preclude the State of Texas or its duly appointed officials from again applying to the Secretary of the Interior or his delegees within the Bureau of Outdoor Recreation for financial assistance in connection with the purchase of land on Mustang Island owned by Mrs. Sam Wilson, Jr. or any other person, nor shall any provision of this Order preclude the Secretary of his delegees from responding to any such application in accordance with the Land and Water Conservation Act and the applicable provisions of then-current bureau and department regulations. This Order is effective only in respect to the facts shown by the evidence adduced in this case.

1. "The Congress finds and declares it to be desirable that all American people of present and future generations be assured adequate outdoor recreation resources, and that it is desirable for all levels of government and private interests to take prompt and coordinated action to the extent practicable without diminishing or affecting their respective powers and functions to conserve, develop and utilize such resources for the benefit and enjoyment of the American people." 16 U.S.C. § 4601.

2. "The purposes of Sections 460(1)-4 to 460(1)-11 of this Title are to assist in preserving, developing, and assuring accessibility to all citizens of the United States of America of present and future generations and visitors who are lawfully present within the boundaries of the United States of America such quality and quantity of outdoor recreation resources as may be available and are necessary and desirable for individual active participation in such recreation and to strengthen the health and vitality of the citizens of the United States by (1) providing funds for and authorizing Federal assistance to the States in planning, acquisition, and development of needed land and waters areas and facilities and (2) providing funds for the Federal acquisition and development of certain lands and other areas." 16 U.S.C. § 4601-4.

3. 31 U.S.C.A. § 529 provides in pertinent part: "No advance of public money shall be made in any case unless authorized by the appropriation concerned or other law." No such authorization appears in the Land and Water Conservation Act of 1965, and the Court has found no other law authorizing such advances of acquisition assistance under this Act.