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ANDRUS v. UTAH

SUPREME COURT OF THE UNITED STATES


argued: May 19, 1980.

ANDRUS, SECRETARY OF THE INTERIOR
v.
UTAH

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.

Stevens, J., delivered the opinion of the Court, in which Brennan, Stewart, White, and Marshall, JJ., joined. Powell, J., filed a dissenting opinion, in which Burger, C. J., and Blackmun and Rehnquist, JJ., joined, post, p. 520.

Author: Stevens

[ 446 U.S. Page 501]

 MR. JUSTICE STEVENS delivered the opinion of the Court.

The State of Utah claims the right to select extremely valuable oil shale lands located within federal grazing districts in lieu of and as indemnification for original school land grants of significantly lesser value that were frustrated by federal pre-emption, or private entry, prior to survey. The question presented is whether the Secretary of the Interior is obliged to accept Utah's selections of substitute tracts of the

[ 446 U.S. Page 502]

     same size as the originally designated sections even though there is a gross disparity between the value of the original grants and the selected substitutes. We hold that the Secretary's "grossly disparate value" policy is a lawful exercise of the broad discretion vested in him by § 7 of the Taylor Grazing Act of 1934, 48 Stat. 1272, as amended in 1936, 49 Stat. 1976, 43 U. S. C. § 315f, and is a valid ground for refusing to accept Utah's selections.

Utah became a State in 1896. In the Utah Enabling Act of 1894, Congress granted Utah, upon admission, four numbered sections in each township for the support of public schools. The statute provided that if the designated sections had already "been sold or otherwise disposed of" pursuant to another Act of Congress, "other lands equivalent thereto . . . are hereby granted." The substitute grants, denominated "indemnity lands" were "to be selected within the State in such manner as [its] legislature may provide with the approval of the Secretary of the Interior."*fn1

Because much of the State was not surveyed until long after its admission to the Union, its indemnity or "in lieu" selections were not made promptly. On September 10, 1965,

[ 446 U.S. Page 503]

     Utah filed the first of 194 selection lists with the Bureau of Land Management of the Department of the Interior covering the land in dispute in this litigation. The 194 indemnity selections include 157,255.90 acres in Uintah County, Utah, all of which are located within federal grazing districts created pursuant to the Taylor Grazing Act.

In January 1974, before Utah's selection lists had been approved or disapproved, the Governor of Utah agreed that the Secretary of the Interior could include two tracts comprising 10,240 acres of selected indemnity lands in an oil shale leasing program, on the understanding that the rental proceeds would ultimately be paid to the State if its selections were approved. The proceeds of the leases are of substantial value.*fn2

In February 1974, the Secretary advised the Governor that he would not approve any indemnity applications that involved "grossly disparate values."*fn3 He wrote:

"As you know, the Department of the Interior has not as yet acted upon the State's [indemnity] applications. The principal question presented by the applications is whether pursuant to Section 7 of the Taylor Grazing Act, 48 Stat. 1272 (1934), as amended, 43 U. S. C. § 315f (1972), the Department may refuse to convey applied-for lands to a State where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity. In January 1967, the then Secretary

[ 446 U.S. Page 504]

     of the Interior adopted the policy that in the exercise of his discretion under, inter alia, Section 7 of the Taylor Grazing Act, he would refuse to approve indemnity applications that involve grossly disparate values. That policy remains in effect.

"In the present case, although the land values are not precisely determined, it appears that the selections involve lands of grossly disparate values, within the meaning of the Department's policy. While the Department is not yet prepared to adjudicate the State's applications, I feel it is appropriate at this time to advise you that we will apply the above-mentioned policy in that adjudication."*fn4

The State promptly filed this action in the United States District Court for the District of Utah. The facts were stipulated, and Judge Ritter entered summary judgment in favor of the State. He held that if Utah's selections satisfy all of the statutory criteria governing indemnity selections when filed,*fn5 the Secretary has no discretion to refuse them

[ 446 U.S. Page 505]

     pursuant to a "grossly disparate value" policy. The Court of Appeals for the Tenth Circuit affirmed, Utah v. Kleppe, 586 F.2d 756 (1978), holding that § 7 of the Taylor Grazing

[ 446 U.S. Page 506]

     Act gave the Secretary no authority to classify land as eligible for selection and that the State had a right to select indemnity land of equal acreage without regard to the relative values of the original grants and the indemnity selections.

Because the dispute between the parties involves a significant issue regarding the disposition of vast amounts of public lands,*fn6 we granted certiorari. 442 U.S. 928. We believe that the Court of Appeals and the District Court failed to give proper effect to the congressional policy underlying the provision for indemnity selection, and specifically misconstrued § 7 of the Taylor Grazing Act as amended in 1936. We therefore reverse.

I

The Enabling Act of each of the public-land States admitted into the Union since 1802 has included grants of designated sections of federal lands for the purpose of supporting public schools.*fn7 Whether the Enabling Act contained words of present

[ 446 U.S. Page 507]

     or future grant, title to the numbered sections did not vest in the State until completion of an official survey. Prior to survey, the Federal Government remained free to dispose of the designated lands "in any manner and for any purpose consistent with applicable federal statutes."*fn8 In recognition of the fact that the essentially random grants in place might therefore be unavailable at the time of survey for a variety of reasons,*fn9 Congress authorized grants of indemnity or "lieu" lands of equal acreage.

As Utah correctly emphasizes, the school land grant was a "solemn agreement" which in some ways may be analogized to a contract between private parties. The United States agreed to cede some of its land to the State in exchange for a commitment by the State to use the revenues derived from the land to educate the citizenry.

The State's right to select indemnity lands may be viewed as the remedy stipulated by the parties for the Federal Government's

[ 446 U.S. Page 508]

     failure to perform entirely its promise to grant the specific numbered sections. The fact that the Utah Enabling Act used the phrase "lands equivalent thereto" and described the substituted lands as "indemnity lands" implies that the purpose of the substitute selections was to provide the State with roughly the same resources with which to support its schools as it would have had had it actually received all of the granted sections in place.*fn10 Thus, as is typical of private contract remedies, the purpose of the right to make indemnity selections was to give the State the benefit of the bargain.

The history of the general statutes relating to land grants for school purposes confirms this view. Thus, for example, in 1859, when confronted with the fact that many settlers had occupied unsurveyed lands that had been included in school grants, Congress confirmed the settlers' claims and granted to the States "other lands of like quantity." Ch. 58, 11 Stat. 385. The substitution of an equal quantity of land provided the States a rough measure of equal value.

The school land grants gave the States a random selection of public lands subject, however, to one important exception. The original school land grants in general, and Utah's in particular, did not include any numbered sections known to be mineral in character by the time of survey. United States v. Sweet, 245 U.S. 563. This Court so held even though the Utah Enabling Act "neither expressly includes mineral lands nor expressly excludes them." Id., at 567. The Court's opinion stressed "the practice of Congress to make a distinction between mineral lands and other lands, to deal with them

[ 446 U.S. Page 509]

     along different lines, and to withhold mineral lands from disposal save under laws specially including them." Ibid. Mineral lands were thus excluded not only from the original grants in place but also from the indemnity selections.*fn11 Since mineral resources provide both the most significant potential source of value and the greatest potential for variation in value in the generally arid western lands, the total exclusion of mineral lands from the school land grants is consistent with an intent that the States' indemnity selections of equal acreage approximate the value of the numbered sections lost.

In 1927, some nine years after the decision in United States v. Sweet, supra, Congress changed its policy to allow grants of school lands to embrace numbered sections that were mineral in character.*fn12 But the 1927 statute did not expand the kinds of land available for indemnity selections.*fn13 Thus, after 1927 even if the lost school lands were mineral in character, a State was prohibited from selecting mineral lands as indemnity. It was not until 1958 that Congress gave the States the right to select mineral lands to replace lost school lands, and that right was expressly conditioned on a determination that the lost lands were also mineral in character. 72 Stat. 928, 43 U. S. C. § 852. See n. 5, supra. For 30 years, then, States

[ 446 U.S. Page 510]

     were not even permitted to select lands roughly equivalent in value to replace lost mineral lands. The condition in the 1958 statute, that the lost lands be mineral in character before mineral lands could be selected as indemnity, rather clearly reflects an intention to restore the character of the indemnity selection as a substitute of roughly equal value.*fn14

Throughout the history of congressional consideration of school land grants and related subjects -- a history discussed at great length in the voluminous briefs submitted to us -- we find no evidence whatever of any congressional desire to have the right to select indemnity lands do anything more than make the States whole for the loss of value resulting from the unavailability of the originally designated cross section of lands within the State. There is certainly no suggestion of a purpose at any time, including 1958, to allow the States to obtain substantially greater values through the process of selecting indemnity land.

Thus, viewing the program in this broad historical perspective, it is difficult to identify any sensible justification for Utah's position that it is entitled to select any mineral lands it chooses regardless of the value of the school sections lost. Nevertheless, Utah is quite correct in arguing that the Secretary has no power to reject its selections unless Congress has given it to him. We have no doubt that it has.

II

Prior to the 1930's, cases in this Court had made it perfectly clear that the Federal Government retained the power to appropriate public lands embraced within school grants for other

[ 446 U.S. Page 511]

     purposes if it acted in a timely fashion. On the other hand, it was equally clear that the States' title to unappropriated land in designated sections could not be defeated after survey, and that their right to indemnity selections could not be rejected if they satisfied the statutory criteria when made, and if the selections were filed before the lands were appropriated for other purposes. The authority of the Secretary of the Interior was limited to determining whether the States' indemnity selections met the relevant statutory criteria. See Wyoming v. United States, 255 U.S. 489; Payne v. New Mexico, 255 U.S. 367, 371.

In the 1930's, however, dissatisfaction with the rather loose regime governing use and disposition of unappropriated federal lands, prompted mostly by the waste caused by unregulated stock grazing,*fn15 led to a series of congressional and executive actions that are critical to this case. By means of these actions, all unappropriated federal lands were withdrawn from every form of entry or selection. The withdrawal did not affect the original school land grants in place, whether or not surveyed, but did include all lands then available for school indemnity selections. The lands thus withdrawn were thereafter available for indemnity selections only as permitted by the Secretary of the Interior in the exercise of his discretion.

The sequence of events was as follows. In 1934, Congress enacted the Taylor Grazing Act "[to] stop injury to the public grazing lands by preventing overgrazing and soil deterioration, to provide for their orderly use, improvement, and development, to stabilize the livestock industry dependent upon the public range, and for other purposes." 48 Stat. 1269. Section 1 authorized the Secretary of the Interior to establish grazing districts in up to 80 million acres of unappropriated federal lands; the establishment of such a district had the effect of withdrawing all lands within its boundaries "from all

[ 446 U.S. Page 512]

     forms of entry of settlement."*fn16 That section also expressly provided that "Nothing in this Act shall be construed in any way . . . to affect any land heretofore or hereafter surveyed

[ 446 U.S. Page 513]

     which, except for the provisions of this Act, would be a part of any grant to any State. . . ." Thus, § 1 preserved the original school land grants, whether or not the designated sections had already been identified by survey, but the statute made no provision for school indemnity selections.*fn17

Because the Taylor Grazing Act as originally passed in 1934 applied to less than half of the federal lands in need of more orderly regulation,*fn18 President Roosevelt promptly issued Executive

[ 446 U.S. Page 514]

     Order No. 6910*fn19 withdrawing all of the unappropriated and unreserved public lands in 12 Western States, including Utah, from "settlement, location, sale or entry" pending

[ 446 U.S. Page 515]

     a determination of the best use of the land. The withdrawal affected the land covered by the Taylor Grazing Act as well as land not covered by the statute. The President's authority to issue Executive Order No. 6910 was expressly conferred by the Pickett Act.*fn20

[ 446 U.S. Page 516]

     Congress responded to Executive Order No. 6910 by amending the Taylor Grazing Act in 1936 in two respects that are relevant to this case. First, it expanded the acreage subject to the Act, see n. 18, supra. Second, it revised § 7 of the Act, see n. 17, supra, to give the Secretary the authority, in his discretion, to classify both lands within grazing districts and lands withdrawn by the recent Executive Order as proper not only for homesteading, but also, for the first time, for satisfaction of any outstanding "lieu" rights, and to open such lands to "selection." The section, thus amended, provided in pertinent part:*fn21

"The Secretary of the Interior is authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order . . . or within a grazing district, which are . . . proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws. . . . Such lands shall not be subject to disposition . . . until after the same have been classified. . . ." (Emphasis added.)

The changes in this section were apparently prompted in part by the fact that while the Taylor Grazing Act withdrawal preserved the States' school grants in place, no provision had been made in the 1934 version for the States' indemnity selections from land within grazing districts even though the States had expressed the concern that "the establishment of a grazing district would restrict the State in its indemnity selections."*fn22 While this omission may not have been critical in 1934 when the Act was passed -- since only about half of the unappropriated federal land was then affected -- by 1936, as a consequence of Executive Order No. 6910, no land at all was available in the public domain for indemnity selections. It is therefore reasonable to infer that the amendments to § 7 were at least in part a response to the

[ 446 U.S. Page 518]

     complaint expressed in congressional hearings in 1935, that there was no land available under current law for indemnity selections.*fn23

[ 446 U.S. Page 519]

     The 1936 amendment to § 7 rectified that problem, but did not give the States a completely free choice in making indemnity selections.*fn24 Rather, Congress decided to route the States' selections through § 7, and thereby to condition their acceptance on the Secretary's discretion. That decision was consistent with the dominant purpose of both the Act and Executive Order No. 6910 to exert firm control over the Nation's land resources through the Department of the Interior. In sum, the Taylor Grazing Act, coupled with the withdrawals by Executive Order, "locked up" all of the federal lands in the Western States pending further action by Congress or the President, except as otherwise permitted in the discretion of the Secretary of the Interior for the limited purposes specified in § 7.

This was Congress' understanding of the Taylor Grazing Act in 1958 when it amended the school land indemnity selection statute to permit selection of mineral lands. Both the House and Senate Reports specifically noted and adopted the Department of the Interior's assumption "'that nothing in this bill is intended to affect the rights or duties of States under other laws' and, in particular, 'that no change is intended to be made in section 7 of the Taylor Grazing Act,

[ 446 U.S. Page 520]

     as amended (43 U. S. C., sec. 315f).'" H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958).*fn25 Since Congress was specifically dealing with school indemnity selections, the Reports make it perfectly clear that Congress deemed school indemnity selections to be subject to § 7 of the Taylor Grazing Act. And since the congressional decision in 1958 to allow school land indemnity selections to embrace mineral lands was expressly conditioned on a determination that the lost school lands were also mineral in character, it is manifest that Congress did not intend to grant the States any windfall. It only intended to restore to the States a rough approximation of what was lost. See n. 14, supra.

We therefore hold that the 1936 amendment to the Taylor Grazing Act conferred on the Secretary the authority in his discretion to classify lands within a federal grazing district as proper for school indemnity selection. And we find no merit in the argument that the Secretary's "grossly disparate value" policy constitutes an abuse of the broad discretion thus conferred. On the contrary, that policy is wholly faithful to Congress' consistent purpose in providing for indemnity selections, to give the States a rough equivalent of the school land grants in place that were lost through pre-emption or private entry prior to survey. Accordingly, the judgment of the Court of Appeals is reversed.

It is so ordered.

Disposition

586 F.2d 756, reversed.

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, dissenting.

Since the early days of the Republic, the Federal Government's compact with each new State has granted the State land for the support of education and allowed the State to

[ 446 U.S. Page 521]

     select land of equal acreage as indemnity for deficiencies in the original grant. Today, the Court holds that the Taylor Grazing Act abrogated those compacts by approving selection requirements completely at odds with the equal acreage principle. Nothing in the Court's opinion persuades me that Congress meant so lightly to breach compacts that it has respected and enforced throughout our Nation's history. I therefore dissent.

The Court's decision rests on three fundamental misconceptions. First, the Court reasons from the accepted proposition that indemnity lands compensate the States for gaps in the original grants to the mistaken conclusion that the States have no right to lands of equal acreage. Ante, at 507-510. This argument ignores the clear meaning of statutes spanning about two centuries in which Congress specifically adopted an equal acreage principle as the standard for making compensation. Second, the Court believes that the establishment of grazing districts under the Taylor Grazing Act has the same effect as a withdrawal of lands under the Pickett Act. Ante, at 513-519. This belief manifests a serious misunderstanding of both the history of federal land management and the language of the Taylor Grazing Act. Third, the Court assumes -- without discussion -- that the Taylor Grazing Act gives the Secretary of the Interior discretion to reject indemnity selections under standards inconsistent with the criteria set out in the statutes authorizing the selections. Every federal court that has considered the Secretary's authority under the Taylor Grazing Act has rejected this assumption.

A correct understanding of this case requires careful examination of a labyrinth of compacts and statutes dating back to the early years of our national history. Part I of this opinion reviews the unbroken succession of laws that undercut the Court's construction of the school indemnity selection statutes. Part II explains the development of the Taylor Grazing Act and its relationship to the Executive Orders withdrawing land under the Pickett Act. Finally, through a detailed consideration

[ 446 U.S. Page 522]

     of the Taylor Grazing Act's critical provisions, Part III demonstrates that the Act will not permit the construction that the Court has given it.

I

When the first 13 States formed the Union, each State had sovereign authority over the lands within its borders. These lands provided a tax base for the support of education and other governmental functions. When settlers sought to carve the State of Ohio from the Northwest Territory in 1802, they encountered a different situation. Vast tracts within the boundaries of the proposed State belonged to the Federal Government. Thus, the new State's potential revenue base would be restricted severely unless the Federal Government waived its immunity from taxation.*fn1 In order to place Ohio on an equal footing with the original States, Congress enacted a compromise drawn from the Land Ordinance of *fn17852 and the Northwest Ordinance of 1787.*fn3 The compromise set a pattern followed in the admission of virtually every other State.*fn4 Specific details varied from State to State, but the

[ 446 U.S. Page 523]

     basic plan persisted. As consideration for each new State's pledge not to tax federal lands, Congress granted the State a fixed proportion of the lands within its borders for the support of public education. E. g., Act of Apr. 30, 1802, § 7, 2 Stat. 175 (Ohio); Act of Jan. 29, 1861, § 3, 12 Stat. 127-128 (Kansas); Act of July 16, 1894, §§ 3, 6, 28 Stat. 108-109 (Utah); see United States v. Morrison, 240 U.S. 192, 201 (1916).*fn5

These agreements were solemn bilateral compacts between each State and the Federal Government. See ante, at 507; United States v. Morrison, supra, at 201-202; Cooper v. Roberts, 18 How. 173, 177-179 (1856). For its part, the Government granted the State specific sections of land within each township laid out by federal survey. The granted sections were specified by number to ensure that the State would receive a random cross section of the public land. Title to the sections vested in the State upon approval of the survey. United States v. Morrison, supra, at 207, 212; Beecher v. Wetherby, 95 U.S. 517 (1877). Should these grants in place prove unavailable, the Federal Government promised to grant the State indemnity in other lands of equal acreage. In return, Congress required the State to memorialize its pledge not to tax federal lands "by ordinance irrevocable without the consent of the United States." E. g., Act of July 16, 1894, § 3, 28 Stat. 108 (Utah). Congress also imposed upon the State a binding and perpetual obligation to use the granted lands for the support of public education. All revenue from the sale or lease of the school grants was impressed with a

[ 446 U.S. Page 524]

     trust in favor of the public schools. No State could divert school lands to other public uses without compensating the trust for the full market value of the interest taken. Lassen v. Arizona ex rel. Arizona Highway Dept., 385 U.S. 458 (1967); see Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295 (1976).

A long line of statutes dating from the early 1800's evidences Congress' consistent respect for the federal obligation to replace unavailable school sections with indemnity lands of equal acreage. See United States v. Morrison, supra, at 201-202. In 1826, the first general indemnity selection statute appropriated additional tracts to compensate the States for lands lost when fractional townships were found not to contain the numbered section originally granted. The statute directed the Secretary of the Treasury to select "out of any unappropriated public land" within the township where the section had been lost the "quantity" of land to which the State was entitled. Act of May 20, 1826, ch. 83, 4 Stat. 179. When private claims against unsurveyed public lands increased as the Nation moved west, Congress also acted to indemnify States for school sections occupied by settlers. The earliest statutes authorized officials in particular States or Territories to select "other lands to an equal amount . . . in lieu of [the] sections so occupied. . . ." E. g., Act of Mar. 2, 1853, § 20, 10 Stat. 179 (Washington Territory).*fn6

In 1859, a second statute of general applicability appropriated "other lands of like quantity" to replace school sections pre-empted by prior settlement, "fractional in quantity," missing from a township, or lost "from any natural cause whatever." Act of Feb. 26, 1859, ch. 58, 11 Stat. 385. Although the statute incorporated by reference the selection provisions of the 1826 Act, a more particular statute passed on the same day expressly empowered local officials in one western

[ 446 U.S. Page 525]

     county to make their own indemnity selection. Upon filing with the local federal register, the statute declared, "the land so selected shall . . . belong to the school fund . . . in all respects the same as other school lands. . . ." Act of Feb. 26, 1859, ch. 59, 11 Stat. 385 (Sarpy County, Neb.).

The general statutes of 1826 and 1859, consolidated and codified as §§ 2275 and 2276 in the Revised Statutes of 1874, underwent extensive revision in 1891. The resulting law appropriated additional land to replace school sections lost because they were mineral in character, included within a federal reservation, or "otherwise disposed of by the United States." In lieu of unavailable school sections, each State was entitled to such "other lands of equal acreage . . . [as] may be selected by said State. . . ." Act of Feb. 28, 1891, ch. 384, 26 Stat. 796. The States could make their indemnity selections from "any unappropriated, surveyed public lands, not mineral in character, within the State. . . ." Id., at 797.

The 1891 revision had at least four effects. First, it reaffirmed the States' unquestioned right to replace lost school sections with lands of equal acreage. Second, it removed the restriction that had limited indemnity selections to land within the township where the school section was unavailable. Third, it appeared to confirm this Court's earlier decision that school grants did not convey mineral lands to the States.*fn7 Fourth, it expressly conformed the general indemnity selection statutes to the mid-19th-century enactments that gave certain States the right to make their own indemnity selections. Even where the earlier statutes gave a State the power of selection, however, it had become accepted practice for the State to submit its selections for the approval of the Secretary of the Interior.*fn8 State Enabling Acts passed in 1889

[ 446 U.S. Page 526]

     and 1890 sanctioned the practice explicitly.*fn9 The 1891 revision of the general indemnity selection laws did not mention the need for federal approval, but the inclusion of an approval requirement in the Utah Enabling Act passed three years later suggests that the revision authorized no departure from the accepted practice. See Act of July 16, 1894, § 6, 28 Stat. 109.

By the end of the 19th century, the States' right to select land of equal acreage in lieu of lost school sections had been established for nearly 100 years. The only unsettled question was whether the Secretary of the Interior had discretion to disapprove the selections. In Payne v. New Mexico, 255 U.S. 367 (1921), this Court resolved that question in the States' favor. New Mexico had selected alternative land in exchange for school sections lying within a national forest. Before the Secretary approved the selection, the grants in place were restored to the public domain. The Secretary found that the restoration of the grants in place defeated the basis for the exchange selection. The Court held, however, that equitable title to properly selected land vested in the State when the selection was filed. If the selection satisfied the requirement of the general school grant statutes, the Secretary had no power to annul the State's title. Id., at 370-371.

Three weeks later, the Court made the same point even more emphatically in Wyoming v. United States, 255 U.S. 489 (1921). In that case, the land selected by Wyoming in exchange for a school section lying within a national forest later was withdrawn by the Federal Government "as possible oil land." Id., at 495. The Court again concluded that equitable title to the chosen land vested in the State on the date the selection was filed. It was not, the Court said,

"as if the selection was merely a proposal by the State

[ 446 U.S. Page 527]

     which the [federal] land officers could accept or reject. They had no such option to exercise. . . . The power confided to them was not that of granting or denying a privilege to the State, but of determining whether an existing privilege conferred by Congress had been lawfully exercised. . . ." Id., at 496.

In the years after Payne and Wyoming, Congress further expanded the States' rights to land for the support of public education. A 1927 statute declared that school grants were "to embrace numbered school sections mineral in character. . . ." Act of Jan. 25, 1927, § 1, 44 Stat., pt. 2, p. 1026. A 1958 amendment to the indemnity selection statutes, by then found in their present places as 43 U. S. C. §§ 851, 852, permitted States to select mineral lands as indemnity for lost school sections that were mineral in character. Act of Aug. 27, 1958, 72 Stat. 928. This provision reflected a congressional judgment that the ban on mineral land indemnity for lost mineral lands had denied the States the fair cross section of land values contemplated by the original numbered grants.*fn10 Congress also found that a rule which kept the States from replacing nonmineral land with mineral land "amply protected" the federal interest in preventing a windfall to the States. Congress therefore declined to depart from the fundamental equal acreage principle accepted since 1802. H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2, 3-4 (1958). Indeed, Congress always has adhered to the equal acreage principle as its standard for just indemnification. As recently as 1966, when it amended 43 U. S. C. § 852 to allow indemnity selections from unsurveyed as well as surveyed public land, Congress rejected the Secretary of the Interior's proposal to import an "equal value concept" into the indemnity statutes.

[ 446 U.S. Page 528]

     See Act of June 24, 1966, Pub. L. 89-470, 80 Stat. 220; S. Rep. No. 1213, 89th Cong., 2d Sess., 2, 4-5 (1966).*fn11

II

The Utah Enabling Act of 1894 grants to the State four numbered sections within each township for the support of public education. If those sections "have been sold or otherwise disposed of" by the Federal Government, the Act -- like other statutes of its kind -- directs school grant indemnity lands "to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior. . . ." Act of July 16, 1894, § 6, 28 Stat. 109. In accordance with this direction, Utah has selected 194 tracts of mineral land as indemnity for lost school sections said to be mineral in character. Utah alleges that the tracts selected are unappropriated public land equal in acreage to the unavailable sections. Thus, the tracts appear to satisfy the basic indemnity selection requirements of 43 U. S. C. §§ 851, 852.

The Secretary, however, has refused to determine whether the selections satisfy the indemnity statutes. Instead, he claims that the Taylor Grazing Act of 1934, as amended, 43 U. S. C. § 315 et seq., gives him discretion to disapprove the selection of indemnity lands "where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity." App. 61. The Court today agrees. In an unprecedented departure, the Court concludes that Congress intended the Taylor Grazing Act to abrogate the equal acreage principle that Congress has reaffirmed repeatedly since 1802. The conclusion is implausible on its face, and the Taylor Grazing Act belies it. A full review of the Act's history and structure shows that this land management legislation

[ 446 U.S. Page 529]

     affects only the States' right to make land exchanges. Indeed, the language of the Act -- analyzed more closely in Part III of this opinion -- expressly protects the States' indemnity selection rights from any impairment whatever.

The Taylor Grazing Act was intended to protect the public lands from spoliation while providing for the orderly satisfaction of valid claims against them. By the mid-1930's, the public ranges in the Western States were seriously endangered. Overgrazing had destroyed the better grasses, erosion had bared the steep hillsides, and silt had filled the waterholes. Homesteading on the better watered grounds aggravated the situation by leaving other lands without access to water. Finally, the disastrous decline of livestock prices during the Great Depression drove stockmen to make even greater use of free grazing on the already depleted public domain.*fn12 It was against this background that Congress in 1934 enacted the Taylor Grazing Act "to promote the highest use of the public lands pending its final disposal. . . ." § 1, 48 Stat. 1269.

Section 1 of the Act authorized the Secretary of the Interior "in his discretion, . . . to establish grazing districts . . . of vacant, unappropriated, and unreserved lands from any part of the public domain . . . , which in his opinion are chiefly valuable for grazing and raising forage crops. . . ." Ibid.*fn13 Land noticed for inclusion within a grazing district was withdrawn from "all forms of entry [or] settlement" until hearings could be conducted. Id., at 1270. Congress carefully provided, however, that the Act was not to impede orderly disposition of the public lands. When some States objected

[ 446 U.S. Page 530]

     to an earlier draft of the Act "upon the theory that the establishment of a grazing district would restrict [a] State in its indemnity selections," Congress recast § 1 to declare expressly that

"[nothing] in this Act shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands . . . except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State. . . ." Id., at 1269.*fn14

[ 446 U.S. Page 531]

     Section 7 also gave the Secretary discretion to reclassify land within a grazing district as "more valuable and suitable for the production of agricultural crops than native grasses and forage plants. . . ." Id., at 1272. Upon reclassification, such land again became "subject to settlement or occupation as homesteads. . . ." Ibid.

The Act contained critically important provisions for land exchanges. Section 8 authorized the Secretary to accept private and state land within a grazing district in exchange for any surveyed public land of no more than "equal value." Id., at 1272-1273. The section showed special solicitude for the States by directing the Secretary to proceed with state-initiated exchanges "at the earliest practicable date, and to cooperate fully with the State to that end. . . ." Id., at 1273. The Western States, however, objected to the discretionary exchange provisions. The Governor of Wyoming, for example, opposed the Act because he feared that § 8 would impair the State's right to exchange school sections isolated inside a federal reservation or a grazing district for other, better situated acreage. In testimony before the Senate Committee, he argued that the Secretary might not allow enough exchanges to permit the removal of state land from inside federally administered areas. The Governor therefore urged that the Act's exchange provisions should be mandatory.*fn15 Testimony given by the Executive Secretary of the Utah Land Board expressed the same concerns.*fn16 The State Land Commissioner of Arizona also suggested that the Act would prevent private citizens from exercising their legitimate rights

[ 446 U.S. Page 532]

     against lands included in a grazing district.*fn17 Although the Secretary argues that these witnesses opposed the Act because it impaired the States' right to make indemnity selections, nothing in their testimony supports that conclusion. Indeed, the testimony of all three witnesses is most remarkable for its failure to suggest that they thought the Taylor Grazing Act would interfere with school grant indemnity selections by the Western States.

Five months after the Act went into effect, President Roosevelt issued Executive Order No. 6910 (1934). Invoking his authority under the Pickett Act of 1910,*fn18 the President withdrew all unreserved and unappropriated public lands in 12 Western States "from settlement, location, sale or entry . . . pending determination of the most useful purpose to which such land may be put. . . ." The effect of this Pickett Act withdrawal was far-reaching. Although homesteading and other activities continued under existing claims, new entries upon the public domain came to a halt. See 55 I. D. 205 (1935). The withdrawal also forestalled States and private citizens from exercising their exchange, scrip, or indemnity rights to appropriate public land. See State of Arizona, 55 I. D. 249, 253-254 (1935).*fn19

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     Only months after the Order issued, the Senators from Arizona began hearings on a proposal to undercut the withdrawal by broadening the Secretary's powers under §§ 7 and 8 of the Taylor Grazing Act.*fn20 The bill suffered a pocket veto, but an almost identical bill became law in 1936. Act of June 26, 1936, Title I, 49 Stat. 1976. In the meantime, Executive Order No. 7274 (1936) excluded from the operation of the earlier Order "all lands which are now, or may hereafter be, included within grazing districts. . . ." Thus, by the time the bill was enacted, the Pickett Act withdrawal had no further effect on lands administered under the Taylor Grazing Act.*fn21

The 1936 enactment significantly amended §§ 7 and 8 of the Taylor Grazing Act. The amendment to § 7 authorized the Secretary of the Interior to classify lands withdrawn by Executive Order No. 6910 or "within a grazing district" as "more valuable or suitable" for uses other than grazing or as "proper for acquisition in satisfaction of any outstanding lieu, exchange or script [sic] rights or land grant. . . ." 49 Stat. 1976.*fn22 Such land would be open "to entry, selection, or

[ 446 U.S. Page 534]

     location" under the applicable public land laws. The statute directed the Secretary to respond to an application for entry by classifying the subject land, but no lands were to be appropriated "until after the same have been classified and opened to entry. . . ." Ibid.

The amendment to § 8 made mandatory the Taylor Grazing Act's provisions for the exchange of state-owned land.*fn23 Upon the receipt of any State's application for an exchange, the statute now provided, the Secretary "shall, and is hereby, directed to proceed with such exchange at the earliest practicable date and to cooperate fully with the State to that end. . . ." Id., at 1977. Furthermore, the Secretary was authorized to make exceptions to the equal value requirement that remained applicable to exchanges of private land. The federal land exchanged for state land could be "either of equal value or of equal acreage." Ibid.

III

Two specific provisions of the Taylor Grazing Act are critical to the Court's resolution of this case. The Court first must demonstrate that § 1 of the Act, 43 U. S. C. § 315, does not exclude the State's school grant indemnity rights from the reach of the statute. The Court then must establish that § 7 of the Act, 43 U. S. C. § 315f, gives the Secretary of the Interior power to disapprove the selection of lands that satisfy

[ 446 U.S. Page 535]

     all requirements of the school grant indemnity statutes, 43 U. S. C. §§ 851, 852. The Court fails to clear either hurdle because neither section of the Act permits the construction that the Court would give it. The plain language of § 1 protects school grant indemnity rights from the operation of the statute. And even if the Act applied to school grants, § 7 would not give the Secretary discretion to reject otherwise proper indemnity selections.

A

Section 1 of the Taylor Grazing Act provides that nothing in the statute shall "affect any land . . . which [otherwise] would be a part of any grant to any State. . . ." The exemption is transparently clear. All grants made by the compacts between the States and the Federal Government are completely unaffected by the Taylor Grazing Act. Thus, the establishment of a grazing district is not a federal "reservation" or "disposition" of land that can prevent title to numbered school sections from vesting in the States. See 43 U. S. C. § 851. Furthermore, designated grazing land remains "unappropriated" and available for the satisfaction of school grants under the terms of the indemnity statutes. See 43 U. S. C. §§ 852 (a) and (d). The purpose of the Act is simply to provide that unsurveyed or unselected school land, like other public land, can be included in grazing districts "[in] order to promote [its] highest use . . . pending its final disposal." 43 U. S. C. § 315.

The Court gives the unqualified exemption in § 1 a construction that is inconsistent with its plain language and the stated purpose of the Act. The Court concedes that the inclusion of numbered school sections within a grazing district is not a federal disposition of the land that can defeat the grants in place. Ante, at 513.*fn24 It holds, however, that the

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     inclusion of other lands within a grazing district is a federal appropriation that can defeat a State's otherwise clear right to replace lost school sections with lands of equal acreage. Ante, at 519. Thus, the Court thinks the Taylor Grazing Act does "affect . . . land . . . which [otherwise] would be . . . part of" a grant to a State. Indeed, the Court concludes that the Act gives the Secretary of the Interior power to nullify an earlier congressional "disposal" of public land. This construction is wholly at odds with the express language and the clear history of the Act.

B

Even if I could agree with the Court that § 1 of the Taylor Grazing Act exempts only numbered school sections from the operation of the Act, I could not agree with the Court's unexplained conclusion that § 7 allows the Secretary of the Interior to review school grant indemnity selections under a comparative value standard. Section 7 of the Act, 43 U. S. C. § 315f, gives the Secretary discretion to reclassify designated grazing lands as

"[i] more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or [ii] more valuable or suitable for any other use than for [grazing], or [iii] proper

[ 446 U.S. Page 537]

     for acquisition in satisfaction of any outstanding lieu, exchange or script [ sic ] rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws. . . ."

The Courts of Appeals have concluded that this section gives the Secretary substantial discretion to conserve the public lands. Thus, the Secretary may reject private applications for land that he finds suitable for more efficient uses. See Bleamaster v. Morton, 448 F.2d 1289 (CA9 1971); Carl v. Udall, 114 U. S. App. D.C. 33, 37-38, 309 F.2d 653, 657-658 (1962). The courts also have upheld administrative determinations that certain land is not proper for private acquisition because the relevant land grant did not convey lands of that character. See Pallin v. United States, 496 F.2d 27, 34-35 (CA9 1974); Finch v. United States, 387 F.2d 13, 15-16 (CA10 1967), cert. denied, 390 U.S. 1012 (1968). But these federal courts agree that § 7 of the Taylor Grazing Act does not give the Secretary authority to review a land selection under standards fundamentally inconsistent with the terms of the relevant land grant statutes. See Pallin v. United States, supra; Bronken v. Morton, 473 F.2d 790, 795-796 (CA9), cert. denied, 414 U.S. 828 (1973); Finch v. United States, supra. The word "proper" in the third clause of § 7 quoted above cannot mean proper under whatever criteria the Secretary sees fit to devise.

Nothing in this general provision, concerned with the satisfaction of private as well as state claims, suggests that Congress intended to authorize a comparative value standard at odds with the equal acreage principle found in every school grant indemnity statute since the beginning of the 19th century. When a specific statute grants fixed acreages, the Secretary cannot defeat the grant by applying a comparative value test based on the general provisions of § 7. Bronken v. Morton, supra. This rule should apply with special force where the

[ 446 U.S. Page 538]

     Federal Government has granted fixed quantities of land to a State as part of the bilateral compact under which the State was admitted to the Union. Even the exchange provisions in § 8 of the Taylor Grazing Act acknowledged the equal acreage principle. The section allowed the Secretary to accept private lands only in return for public lands of no more than "equal value," 43 U. S. C. § 315g (b) (1970 ed.), but it authorized him to take state-owned lands in exchange for "land either of equal value or of equal acreage," § 315g (c). Having expressly acknowledged the equal acreage principle in a section dealing with the exchange of lands to which the States already hold title, the Act could not silently have authorized departures from that principle in a section dealing with indemnity for deficiencies in the original land grants.

The Congress that passed the indemnity provision under which Utah has made its selections found that a law permitting the selection of mineral lands as indemnity for other mineral lands of equal acreage "amply protected" the federal interest. H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958). The sponsors of the legislation and the Department of the Interior did not conclude -- as the Court does -- that such selections would allow the States to secure an unfair advantage. Instead, they agreed that the selection of mineral lands on an equal acreage basis was necessary to guarantee the public schools a "fair cross section of land values." Id., at 4 (report of the Department of the Interior); 104 Cong. Rec. 11921 (1958) (remarks of Sen. Watkins); see supra, at 527. No later Congress has receded from this view, despite the Secretary's invitation to do so. See S. Rep. No. 1213, 89th Cong., 2d Sess., 2, 4 (1966); supra, at 527-528. For nearly 180 years, Congress has adhered to the equal acreage principle embodied in the specific statutes most relevant to this case. The Court has no basis for surmising that a general statute addressed to different issues has given the Secretary authority to adopt an inconsistent position.

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     IV

Utah has selected land in satisfaction of grants made to support the public education of its citizens. Those grants are part of the bilateral compact under which Utah was admitted to the Union. They guarantee the State a specific quantity of the public lands within its borders. Payne v. New Mexico, 255 U.S. 367 (1921), and Wyoming v. United States, 255 U.S. 489 (1921), require the Secretary of the Interior to approve Utah's indemnity selections if they designate tracts equal in acreage to the lands replaced and otherwise satisfy the requirements of 43 U. S. C. §§ 851, 852. Nothing in the Taylor Grazing Act empowers the Secretary to review Utah's selections under a comparative value standard explicitly at odds with principles consistently respected since the early days of our Republic.

For a decade or longer, however, the Secretary has refused to determine whether Utah's selections satisfy §§ 851 and 852. Indeed, he has refused to make any determination at all. Rather, the Secretary has claimed that the Taylor Grazing Act gives him discretion to disapprove the selection of indemnity lands more valuable than Utah's lost school sections. In the five years since Utah took issue with that claim, the registry of the District Court has swollen with the proceeds of oil shale leases on the selected land -- proceeds which the Federal Government now claims on the ground that the Secretary has not approved the indemnity selections. The District Court brought this matter to a just conclusion. It ordered the Secretary to do his duty. The Court of Appeals affirmed, and I would affirm its judgment.

Counsel FOOTNOTES

* Briefs of amici curiae urging affirmance were filed by George Deukmejian, Attorney General of California, N. Gregory Taylor and Jan S. Stevens, Assistant Attorneys General, and Stephen H. Mills, Deputy Attorney General, Robert K. Corbin, Attorney General of Arizona, J. D. MacFarlane, Attorney General of Colorado, John F. North, Special Assistant Attorney General of Montana, Richard H. Bryan, Attorney General of Nevada, Jeff Bingaman, Attorney General of New Mexico, and William O. Jordan, Special Assistant Attorney General, James A. Redden, Attorney General of Oregon, and Peter S. Herman, Slade Gorton, Attorney General of Washington, and Theodore O. Torve and J. Lawrence Coniff, Jr., Assistant Attorneys General, and John D. Troughton, Attorney General of Wyoming, for the State of California et al.; and by David H. Leroy, Attorney General of Idaho, and W. Hugh O'Riordan, Deputy Attorney General, for the State of Idaho.

Briefs of amici curiae were filed by Richard C. Cahoon for Justheim Petroleum Co.; and by Stephen G. Boyden and Scott C. Pugsley for the Ute Indian Tribe of the Uintah and Ouray Reservation.


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