(dissenting):

I respectfully dissent. The factual situation which forms the basis of the case before us is a frustrating one, but one in which neither the officials of the State of Washington nor of the United States government have been arbitrary or capricious in their actions.

The case concerns the desire of the State of Washington to secure water for its school lands. Under Washington law the disposal of such lands is restricted by Sec. 11 of the Washington Enabling Act and by Art. 16, §§ 1 and 2 of the Washington Constitution, which provide in substance, that the school lands shall be disposed of only at public sale or public auction. The statutes of the United States, in particular 43 U.S.C. § 423e provide in substance, that as to lands held in private ownership water will not be supplied for an area in excess of 160 acres unless there is a valid recordable contract for the sale of the lands in excess of 160 acres, at terms and conditions satisfactory to the Secretary, and at prices not to exceed those fixed by the Secretary.

Public Law 851, 81st Cong., 2d Sess., 64 Stat. 1074 (1950) solved the problem while the law was in existence. However, the enactment of Public Law 87-728, Sec. 3 ; 16 U.S.C. § 835 -¶ [Supp. 1966], 76 Stat. 677 -679 (1962) on October 1, 1962 changed the situation and repealed the statutory basis for an agreement entered into between the State of Washington and the Secretary under the 1950 statute. 43 U.S.C. § 423e again became effective.

Without doubt Washington is entitled to relief from the intolerable situation that prevents its sale of school lands since water cannot be obtained under the present Federal statutes. Hard cases make bad law. The situation is one for Congress to remedy, and not for this court to, in substance, legislate.

The district court applied the doctrine of sovereign immunity and dismissed on the ground that the action was, in substance, an action against the United States and that the United States had not consented to be sued.

A lengthy dissent would not change my brethren’s views. The dissent, therefore, will be in summary form.

1. The majority, relying largely on legal writings, other than decided cases, writes as to what the law ought to be, and thereon bases its reversal. It is not the function of our courts to legislate. This is the business of Congress.

2. The opinion flies in the face of the Supreme Court’s decisions in Larson v. Domestic and Foreign Commerce Corp., (1949) 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1928 ; Malone v. Bowdoin (1962), 369 U.S. 643 , 82 S.Ct. 980 , 8 L.Ed.2d *1322 168 ; Dugan v. Rank (1963), 372 U.S. 609 , 83 S.Ct. 999 , 10 L.Ed.2d 115 ; and City of Fresno v. California (1963), 372 U.S. 627 , 83 S.Ct. 996 , 10 L.Ed.2d 28 . Three of the cases, Larson, Dugan and City of Fresno directly concerned property owned by the United States. Here the water from the Columbia Basin project is owned by the United States and the action seeks to direct how the United States disposes of its water. The cited cases control.

The opinion is contrary to White v. Administrator of General Services Admin. (9 Cir. 1965), 343 F.2d 444 which is directly in point. The action was to compel the execution of a deed conveying an interest in land.

3. Larson, supra, provides two exceptions to the application of the doctrine of sovereign immunity; (1) when the officer’s powers are limited by statute and his actions are ultra vires; and (2) when the officer is acting unconstitutionally or pursuant to an unconstitutional statute.

Here, there were no contentions as to the second exception.

4. In our case there can be no contention that the federal officials were acting ultra vires. They were doing exactly what the statute, 43 U.S.C. 423e, required of them.

5. Where a federal officer has authority, action taken by him which is erroneous, because of a mistake of law or fact, does not become action ultra vires or beyond his delegated authority. Dugan, supra, p. 622 , 83 S.Ct. 999 ; Larson, supra, pp. 695, 701-702 , 69 S.Ct. 1457 ; Adams v. Nagle (1938), 303 U.S. 532, 542 , 58 S.Ct. 687 , 82 L.Ed. 999 .

The opinion states “The resolution of this issue [whether the Secretary’s imposition of the 160 acre limitation was within his delegated powers] depends on whether Congress granted to the Secretary * * * the discretionary authority to make incorrect as well as correct decisions concerning the necessity for the inclusion of the 160-acre limitations in the contracts. 9 ” The authorities cited for this statement in note 9 are the legal and text book writers.

The statement gave the Secretary the express power to do exactly what he did. His interpretation that school lands were “land held in private ownership” was at the very best erroneous. Neither the majority opinion or this dissent should reach the question of the proper interpretation to be given that language, since it was not considered below. A reasonable interpretation may well be that all lands, not the property of the United States, or public lands, are private lands.

The majority opinion is contrary to the controlling authorities cited above.

6. Since we think that the United States has not consented to be sued and the trial court properly applied the doctrine of sovereign immunity there is no need to discuss the jurisdiction of the trial court. The majority, we think, correctly notes that neither the mandamus statute or the Administrative Procedure Act, represents a consent by the United States to be sued or a waiver of sovereign immunity.

*1323 Although we agree, the authorities are in a state of confusion and the problem merits, in a proper case, more than the passing reference in the note referred to above. 1

The judgment should be affirmed.

. See Byse, supra note 7, at 1490-91; Jaffe, The Right to Judicial Review I, 71 Harv.L.Rev. 401, 437 (1958); cf. Adams v. Nagle, 303 U.S. 532, 542 , 58 S.Ct. 687 , 82 L.Ed. 999 (1938). Professor Byse has observed,

“The vice of Larson and its progeny is that they permit — perhaps even encourage — courts to shirk the hard task of determining the limits of official power. It is perfectly possible for a court to hold that an official has authority to make erroneous as well as correct determinations. Such a holding, of course, should rest on a reasoned determination that Congress intended to confer so broad a discretion. But under Larson * * * et at., the courts seem to interpret the statutes cursorily to authorize the defendant official to act in the ‘general’ area in question; so long as the official remains within the ‘general’ area, his erroneous acts are unreviewable whether or not the statute properly construed was intended to confer such an unreviewable discretion. This, I submit, is an abdication of judicial responsibility.” 75 Harv.L.Rev. at 1490-91 (citations omitted).

. For cases holding or intimating that the Administrative Procedure Act does not constitute a consent to sue the United States and/or does not confer jurisdiction over the United States or government officials,—See White v. Administrator of General Services Admin. (9 Cir. 1965), 343 F.2d 444 ; Chournos v. United States (10 Cir. 1964), 335 F.2d 918 , 919; Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe (8 Cir. 1967), 370 F.2d 529 ; Cyrus v. United States (1 Cir. 1955), 226 F.2d 416, 417 ; Aktiebolaget Bofors v. United States (1951), 90 U.S.App.D.C. 92 , 194 F.2d 145, 149 ; Motah v. United States (10 Cir. 1968), 402 F.2d 1 . And see Dugan v. Rank, supra, and City of Fresno v. California, supra, where the Administrative Procedure Act is not mentioned.

For eases holding or intimating that the Administrative Procedure Act is a consent to sue the United States, see Coleman v. United States, (9 Cir. 1966) 363 F.2d 190 ; reversed in United States v. Coleman, 390 U.S. 599 , 88 S.Ct. 1327 , 20 L.Ed.2d 170 ; Adams v. Witmer (9 Cir. 1958), 271 F.2d 29 ; Mulry v. Driver (9 Cir. 1966), 366 F.2d 544 ; Estrada v. Ahrens (5 Cir. 1961), 296 F.2d 690 ; Brennan v. Udall (10 Cir. 1967), 379 F.2d 803 , cert. denied 389 U.S. 975 , 88 S.Ct. 477 , 19 L.Ed.2d 468 ; Abbott Laboratories v. Gardner (1967), 387 U.S. 136, 140-141 , 87 S.Ct. 1507 , 18 L.Ed.2d 681 ; Converse v. Udall (9 Cir. 1968), 399 F.2d 616 , cert. denied (1969) 393 U.S. 1025 , 89 S.Ct. 635 , 21 L.Ed.2d 569 relying on Coleman v. United States, in the circuit ( 363 F.2d 190 ).