Hillin L. Arnold v. Rogers C. B. Morton, the Secretary of Interior of the United States

(dissenting):

I dissent. I have considerable doubt about the construction given to Executive Order No. 3797-A in Part II of Judge Sneed’s opinion. That construction appears to me to be unnecessarily technical and inconsistent with the purpose of establishing Pet. 4. We were told by the Supreme Court, shortly after Pet. 4 was created, that “it has been and is the policy of the United States to maintain a great naval petroleum reserve in the ground.” Pan American Pe *1107 troleum & Transport Co. v. United States, 1927, 273 U.S. (1 Pet.) 456, 501 , 47 S.Ct. 416, 422 , 71 L.Ed. 734 . See also Mammoth Oil Co. v. United States, 1927, 275 U.S. (2 Pet.) 13, 53 , 48 S.Ct. 1 , 72 L.Ed. 137 . Lacunae within the reserve, not subject to the authority of the Secretary of the Navy, seem to me to imperil that policy. I incline to the view that Executive Order No. 3797-A can be, and should be, read as the Secretary reads it in this case.

But even if Judge Sneed’s construction of the Order be accepted, it does not follow that the decision appealed from is wrong. I would hold that the Congress has reserved, as part of Pet. 4, all of those public lands inside its boundaries which, at the date of…

529 F.2d 1101 Hillin L. ARNOLD et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON, the Secretary of Interior of the United States, et al., Defendants-Appellees. No. 74--2218. United States Court of Appeals, Ninth Circuit. Jan. 23, 1976. John D. Zeglis (argued), of Sidley & Austin, Chicago, Ill., for plaintiffs-appellants. Jacques B. Gelin, Atty. (argued), U.S. Dept. of Justice, Washington, D.C., for defendants-appellees. OPINION Before DUNIWAY, TRASK and SNEED, Circuit Judges. SNEED, Circuit Judge. 1 This case reaches us on appeal from the district court's order granting the motion of the defendants for summary judgment. The case arises from a rejection by defendant Secretary of the Interior of plaintiffs' applications for oil and gas leases under the Mineral Lands Leasing Act 1 on lands that are within the exterior perimeter of Naval Petroleum Reserve No. 4 (Pet. 4). The Interior Board of Land Appeals held that the Secretary did not have jurisdiction to issue the leases because the lands in question had been made a part of Pet. 4 and therefore were under the control of the Navy. Starling Brokers, 6 IBLA 237 (1972). Plaintiffs' action below sought a review of the agency…

This case reaches us on appeal from the district court’s order granting the motion of the defendants for summary judgment. The case arises from a rejection by defendant Secretary of the Interior of plaintiffs’ applications for oil and gas leases under the Mineral Lands Leasing Act 1 on lands that are within the exterior perimeter of Naval Petrole *1103 um Reserve No. 4 (Pet. 4). The Interior Board of Land Appeals held that the Secretary did not have jurisdiction to issue the leases because the lands in question had been made a part of Pet. 4 and therefore were under the control of the Navy. Starling Brokers, 6 IBLA 237 (1972). Plaintiffs’ action below sought a review of the agency determination 2 and a decision by the district court that they are entitled as a matter of law to the leases for which they applied. We agree with plaintiffs that the lands in question are not a part of Pet. 4, but do not agree that plaintiffs are entitled to leases as a matter of law. We, therefore, reverse the lower court’s order granting the Secretary’s motion for summary judgment and remand these proceedings to that court with instructions to order the Secretary to consider plaintiffs’ lease…