Opinion · Court of Appeals for the Ninth Circuit
Nelson v. Andrus
591 F.2d 1265
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1978-10-02
- Topic
- bankruptcy
PER CURIAM: This is an appeal from a summary judgment dismissing the action with prejudice on the ground that the court was without jurisdiction to review a decision of the Secretary of the Interior which classified certain land as suitable for entry under the Desert Land Act, as amended, 43 U.S.C. § 321, et seq., and granted a desert land entry permit to the intervenor. In a well reasoned opinion, setting forth in detail the *1266undisputed facts and applicable law, the district court held that the Secretary’s action was committed to agency discretion and therefore was not subject to judicial review. Nelson et al. v. Kleppe et al., 457 F.Supp. 5 (D.Idaho 1976). The district court concluded that there was “no law to apply” and judicial review was precluded by the decision of the Supreme Court in Citizens to Preserve Overton Park v.
Citator
UpLaw has not yet analyzed Nelson v. Andrus. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 12 opinions
NELSON v. ANDRUS,591 F.2d 1265(9th Cir. 1978)
T. STANLEY NELSON, IDAHO WILDLIFE FEDERATION, GOLDEN EAGLE AUDUBON CHAPTER,
B. ROBERT BUTLER, MARID P. DELISIO, RUTHANN KNUDSEN, MAX G. PAVESIC, DAVID
RICE AND RODERICK SPRAGUE, PLAINTIFFS-APPELLANTS, v. CECIL D. ANDRUS
(FORMERLY THOMAS S. KLEPPE), IN HIS OFFICIAL CAPACITY OF SECRETARY OF THE
INTERIOR OF THE UNITED STATES, CURTIS J. BERKLUND, IN HIS OFFICIAL CAPACITY
AS DIRECTOR OF THE BUREAU OF LAND MANAGEMENT OF THE DEPARTMENT OF THE
INTERIOR, WILLIAM L. MATTHEWS, STATE DIRECTOR (IDAHO) OF THE BUREAU OF LAND
MANAGEMENT, DEFENDANTS-APPELLEES, ROBERT M. HENGGELER, INTERVENOR-DEFENDANT.
No. 76-3319.
United States Court of Appeals, Ninth Circuit.
October 2, 1978.
Rehearing Denied November 1, 1978.
Edward J. Shawaker (argued), of Dept. of Justice, Washington, D.C., William F. Ringert (argued), of Anderson, Kaufman, Anderson Ringert, Boise, Idaho, for defendants-appellees.
Before WRIGHT and GOODWIN, Circuit Judges, and JAMESON,fn*District Judge.
[2] The district court concluded that there was "no law to apply" and judicial review was precluded by the decision of the Supreme Court inCitizens to Preserve Overton Park v. Volpe,401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), as interpreted by this court inNess Investment Corp. v. United States Department ofAgr., Forest Service,512 F.2d 706(9 Cir. 1975), andStrickland v. Morton,519 F.2d 467(9 Cir. 1975).
[3] Appellants contended further in the district court, as they do here, that the agency violated its own policy and that actions inconsistent with the agency policy are judicially reviewable as an abuse of discretion. Relying uponPacific Gas Electric Co.v. Federal Power Commission,164 U.S.App. D.C. 371,506 F.2d 33(1974), the district court concluded that the policy determination in question was not the same as an administrative regulation which has the force and effect of law; that the policy decision was not statutorily required; and that the decisions involved matters best directed to the Secretary's discretion and expertise.
[4] Subsequent to the decision of the district court, this court has reaffirmed the holdings inNess, supra,andStrickland,supra,inArizona Power Authority v. Morton,549 F.2d 1231(9 Cir.)cert. denied,434 U.S. 835, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977), andCity of Santa Clara, California v. Andrus,572 F.2d 660(9 Cir. 1978). InCity of Santa Clara,we concluded that "if, however, no law fetters the exercise of administrative discretion, the courts have no standard against which to measure the lawfulness of agency action" and that, "There is `law to apply,' only if a specific statute limits the agency's discretion to act in the manner which is challenged." 572 F.2d at 666.
[5] We agree with the conclusions of the district court and adopt Judge Anderson's opinion as the opinion of this court, supplemented by the cases cited herein decided subsequent to his opinion.
[6] AFFIRMED.
- The Honorable William J. Jameson, Senior United States District Judge for the District of Montana, sitting by designation. ↩