Nelson v. Andrus

Ninth Circuit

Nelson v. Andrus

591 F.2d 1265

CourtCourt of Appeals for the Ninth Circuit

DecidedOctober 2, 1978

DocketNo. 76-3319

StatusPublished

Cited by7 cases

This text of 591 F.2d 1265 (Nelson v. Andrus) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Nelson v. Andrus, 591 F.2d 1265 (9th Cir. 1978).

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Opinion

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 [1266]*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. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), as interpreted by this court in Ness Investment Corp. v. United States Department of Agr., Forest Service, 512 F.2d 706 (9 Cir. 1975), and Strickland v. Morton, 519 F.2d 467 (9 Cir. 1975).

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 upon Pacific 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.

Subsequent to the decision of the district court, this court has reaffirmed the holdings in Ness, supra, and Strickland, supra, in Arizona 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), and City of Santa Clara, California v. Andrus, 572 F.2d 660 (9 Cir. 1978). In City 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 Taw 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.

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.

AFFIRMED.

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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 [1266]*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. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), as interpreted by this court in Ness Investment Corp. v. United States Department of Agr., Forest Service, 512 F.2d 706 (9 Cir. 1975), and Strickland v. Morton, 519 F.2d 467 (9 Cir. 1975).

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 upon Pacific 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.

Subsequent to the decision of the district court, this court has reaffirmed the holdings in Ness, supra, and Strickland, supra, in Arizona 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), and City of Santa Clara, California v. Andrus, 572 F.2d 660 (9 Cir. 1978). In City 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 Taw 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.

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.

AFFIRMED.

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591 F.2d 1265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-andrus-ca9-1978.

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