Hamel

This is an action for judicial review of an administrative order of the Bureau of Land Management denying petitioner’s application under 43 U.S.C. § 1068 for a patent to a tract of land containing 2.29 acres. The ground on which the Bureau based its denial was that the land was not held by petitioner and his predecessors under claim or color of title as required by § 1068. The order was affirmed on appeal by the Secretary of the Interior. This Court has heretofore issued an injunction restraining respondents from clouding petitioner’s title to such land pending termination of the proceedings herein.

Respondents have moved to dismiss the petition for failure to state a claim upon which relief can be granted, Fed. Rules Civ.Proc. Rule 12(b), and to vacate the injunction previously issued.

The primary question presented by the motion is whether the Bureau’s order denying petitioner’s application is judicially reviewable.

Under the Administrative Procedure Act, this Court may review agency action such as that involved here, except in so far as “(1) statutes preclude judicial review or (2)-agency action is by law committed to agency discretion”. 5 U. S.C. § 1009. In this case there…