United States v. 10.69 Acres of Land, More or Less , 425 F.2d 317 ( 1970 )

BROWNING, Circuit Judge:

Invoking the provisions of 23 U.S.C. § 107(a), the State of Washington requested the Department of Transportation to acquire 10.69 acres of land in Yakima County, Washington, for use in the construction of an interstate highway. The lands in question are Indian tribal lands held in trust by the United States for the benefit of the Confederated Tribes and Bands of the Yakima Indian Nation.

The Department of Justice, acting at the request of the Department of Transportation, commenced this proceeding to condemn the lands. The district court dismissed. We affirm, on the ground that these lands can be appropriated for highway purposes only by utilizing the administrative procedures provided for in 23 U.S.C. §§ 107(d) and 317.

23 U.S.C. § 107(a) authorizes the Secretary of Transportation, at the request of a State, “to acquire lands or interests in lands * *• * required by such State for rights-of-way or other purposes, in connection with the * * * Interstate System” of highways.¹

23 U.S.C. § 107(d) provides that whenever rights of way for the Interstate System are required “over lands or interests in lands owned by the United States, the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary to give the State * * * adequate rights-of-way * *

23 U.S.C. § 317 details the procedure to be followed in appropriating “lands or interest in lands owned by the United States * * * for the right-of-way of any highway.” Subsection (a) of section 317 provides that the Secretary of Transportation “shall file with the Secretary of the Department supervising the administration of such lands or interests in lands a map showing the portion of such lands or interests in lands which it is desired to appropriate.” Subsection (b) provides that the lands may be appropriated for highway purposes if within four months after the filing of the map by the Secretary of Transportation the Secretary of the Department having jurisdiction over the lands either (1) does not certify to the Secretary of Transportation that appropriation of the lands for highway purposes would be “contrary to the public interest or inconsistent with the purposes for which such land * * * [has] been reserved,” or (2) does agree to the appropriation for highway purposes under such conditions as “he deems necessary for the adequate protection and utilization of the reserve.” Subsection (c) provides that when the lands are no longer needed for highway purposes they “shall immediately revert to the control of the Secretary of the Department from which they had been appropriated.”

There is no doubt that sections 107 and 317 are to be read together. Both were included in Title 23 when it was enacted into positive law as a comprehensive codification of all congressional enactments on the subject of highways; ² the codification legislation was deliberately delayed in order that the provisions of the Federal-Aid Highway Act of 1956, which included what is now section 107 of Title 23, could be incorporated in it; ³ conforming language changes were made in both section 107 and section 317;⁴ and a new subsection was added to section 317 which explicitly states that “[t]he provisions of this section shall apply * * * to projects constructed on a Federal-aid system.”⁵

The apparent scheme of these statutory provisions is that when property owned by the United States is to be appropriated for highway purposes the Secretary of Transportation must comply with the administrative procedures established by sections 107(d) and 317.

The reason seems plain. When property sought for highway purposes is owned by third persons, no conflicting governmental use is likely to be involved. When the property is already owned by the United States, however, the possibility of a potentially conflicting governmental use is substantial. For this reason sections 107(d) and 317 require the Secretary of Transportation to give notice of the proposed appropriation for highway purposes to the Secretary of the Department having control of the land, and provide a means by which the latter may protect any governmental interest in use of the property for purposes other than highway construction.

This interpretation of sections 107(a) and (d) and 317 of Title 23 is reinforced by complementary provisions in Title 25 relating specifically to Indian lands.

Sections 311 and 357 of Title 25 (which originated as sections 4 and 3, respectively, of the Act of March 3, 1901), and sections 323-328 of that Title, reflect essentially the same distinction as that found in the Title 23 provisions. Section 357 of Title 25 provides that lands allotted to Indians in severalty may be taken by condemnation. But section 311 provides that Indian reservation lands, and lands allotted in severalty but without full power of alienation, may be used for highway purposes by authorization of the Secretary of Interior⁶ “upon compliance with such requirements as he may deem necessary.” And, similarly, sections 323-328 of Title 25, enacted as a later, general, statute (Act of February 5, 1948, c. 45, 62 Stat. 17), provide that the Secretary of Interior may grant rights of way for all purposes, “subject to such conditions as he may prescribe,” ⁷ across lands held in trust by the United States for individual Indians or tribes, or owned by them subject to restrictions against alienation, or acquired or set aside for the use and benefit of the Indians, “upon application by the department or agency having jurisdiction over the activity for which the right-of-way is to be used.”

The structure of these provisions of Titles 23 and 25, and the evident purpose they serve, offer strong support for interpreting sections 107(a) and (d) and 317 of Title 23 to mean that Indian tribal lands may be secured for highway use only by administrative appropriation under sections 107(d) and 317, and not by condemnation under section 107(a). The officials most immediately concerned with the administration of the federal highway program are apparently of the same view.⁸

The government’s arguments to the contrary are not persuasive.

We agree, of course, that Congress may provide for the condemnation of Indian tribal lands,⁹ and that the taking of Indian lands may be authorized by a general statute without a specific reference to such lands.¹⁰ But these generalizations do not establish that Congress intended 23 U.S.C. § 107(a) to authorize the Secretary of Transportation to condemn Indian tribal lands for highway purposes whenever he thought it desirable to do so, and thus to circumvent the Department of Interior, which has had jurisdiction over Indians and their property for over 120 years,¹¹ and negate the protective purposes evident in 25 U.S.C. §§ 323-328.

The government contends that the reference in section 107(d) “[to] lands or interests in lands owned by the United States,” was intended to limit administrative appropriation to lands in which the United States owns the beneficial interest. But the ordinary meaning of these words encompasses the fee title interest of the United States in tribal lands involved here; and obviously there is substantial reason for requiring the consent of the relevant Department where the government’s interest is that of a fiduciary charged with protecting the interests of designated beneficiaries. Moreover, as originally enacted, the phrase in 23 U.S.C. § 107(d) read “public lands or reservations of the United States” ¹² — which in similar context has been held to include Indian reservations ¹³ — and the change to the present language was made only “for purposes of clarity.” H.R.Rep. No. 1938, 85th Cong. 2d Sess., 34 (1958).

The government argues that since 23 U.S.C. § 107(d) states that the Secretary of Transportation “may” make right-of-way arrangements with the Secretary of the Department having jurisdiction over the lands, it merely provides a permissible alternative to condemnation which the Secretary of Transportation in his discretion may choose to ignore. But this argument runs directly contrary to the language of 23 U.S.C. § 317, which provides in mandatory terms that the Secretary of Transportation “shall” file a map of the lands sought with the Secretary of the Department supervising the administration of the lands, and empowers the latter to bar appropriation for highway purposes or condition such appropriation upon terms which will protect the governmental interest in continued utilization of the reserve for non-highway purposes.

The mandatory, protective, provisions of section 317 have governed the appropriation of public lands for highway purposes since 1921.¹⁴ There is nothing in the legislative history of section 107(d), enacted 35 years later,¹⁵ which suggests that Congress intended to abandon the mandatory aspect of section 317 and vest absolute discretion in the Secretary of Transportation to take any public lands for highway purposes.

There is no intermediate- position. If the government’s interpretation of section 107(d) were accepted, the Secretary of Transportation would be equally at liberty to condemn a right of way for the Interstate System of highways through national parks and military reservations without regard to the Department of Interior or the Defense Department.

Certainly such a result is not required by use of the permissive “may” in section 107(d). When requested by a State to acquire lands for use in the Interstate highway system, “the Secretary is authorized * * * to acquire * * * such lands or interests in lands by purchase, donation, condemnation or otherwise” (23 U.S.C. § 107(a)); and when lands owned by the United States are involved “the Secretary may make such arrangements with the agency having jurisdiction over such lands as may be necessary * * * to give the State or other person * * * adequate rights-of-way * * (23 U.S.C. § 107(d)) (emphasis added). Both subsections merely confer authority upon the Secretary which he may or may not choose to use; they are permissive only in the sense that the Secretary of Transportation is not compelled by either to exercise the authority conferred.

The judgment is affirmed.

1 . Section 107(a) provides in pertinent part:

“In any case in which the Secretary is requested by a State to acquire lands or interests in lands * * * required by such State for rights-of-way or other purposes in connection with the * * * Interstate System, the Secretary is authorized, in the name of the United States * * * to acquire * * * such lands or interests of lands by purchase, donation, condemnation, or otherwise in accordance with the laws of the United States * * * if [the Secretary finds that the State is unable to acquire the land or cannot acquire it ‘with sufficient promptness,’ and the State agrees to pay 10% of the cost to the government] * *

Since the lands involved were unallotted tribal lands held in trust by the United States, it is conceded that the State could not condemn them. Compare 25 U.S.C. § 357, which permits condemnation by the State for any public purpose of “[l]ands allotted in severalty to Indians. * * ” See United States v. 2005.32 Acres of Land, 160 F.Supp. 193, 199 (N.D.S.Dak.1958.) See also United States v. Oklahoma Gas & Electric Co., 318 U.S. 206, 214-215, 63 S.Ct. 534, 87 L.Ed. 716 (1943).

2 . Act of Aug. 27, 1958, Pub.L. No. 85-767, 72 Stat. 885; see S.Rep. No. 1928, 85th Cong., 2d Sess. (1958), U.S.Code Cong. & Admin.News, p. 3942.

3 . S.Rep. No. 1928, supra, at 3.

4 . The phrase “lands or interests in lands owned by the United States” was substituted for “public lands or reservations of the United States” in both sections.

5 . 23 U.S.C. § 317(d). “Federal-aid systems” are described in 23 U.S.C. § 103 as including the Interstate System; and section 107 expresály applies to the Interstate System.

6 . Jurisdiction of Indian matters has been vested in the Department of Interior since its establishment. Act of March 3, 1849, c. 108, § 5, 9 Stat. 395. See U. S. Dep’t of Interior, Federal Indian Law 219 (1958); Note, The Indian: The Forgotten American, 81 Harv.L.Rev. 1818, 1819 (1968).

7 . Conditions normally imposed are listed in 25 C.F.R. § 161.5.

8 . Policy and Procedure Memorandum 80-8 was issued by the Bureau of Public Roads, Department of Transportation, on April 17, 1967, “to prescribe the policies and procedures relating to the acquisition by the State of land or interests in lands owned by the United States for highway purposes,” under 23 U.S.C. §§ 317 and 107(d). It provides that applications for rights of way across Indian lands shall be filed with the Department of Interior in accordance with the regulations established by the Bureau of Indian Affairs for the processing of applications under 25 U.S.C. §§ 325-328. See 25 C.F.R. Part 161.

9 . Choate v. Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 56 L.Ed. 941 (1912); Thomas v. Gay, 169 U.S. 264, 270-271, 18 S.Ct. 340, 42 L.Ed. 740 (1898); Cherokee Nation v. Southern Kansas Ry., 135 U.S. 641, 656-657, 10 S.Ct. 965, 34 L.Ed. 295 (1890).

10 . FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116-120, 80 S.Ct. 543, 4 L.Ed. 2d 584 (1960); Seneca Nation of Indians v. United States, 338 F.2d 55, 56-57 (2d Cir. 1964).

11 . See note 6.

12 . See section 109(d), Federal-Aid Highway Act of 1956, Pub.L. No. 627, 70 Stat. 374, 381.

13 . United States v. Portneuf-Marsh Valley Irr. Co., 205 F. 416, 419 (E.D.Idaho 1913); Rio Verde Canal Co. (on review), 27 Interior Dec. 421 (1898). See also Leavenworth, Lawrence & Galveston R. R. v. United States, 92 U.S. 733, 747, 23 L.Ed. 634 (1875).

14 . See section 17, Federal Highway Act of 1921, c. 119, 42 Stat. 212, 216.

15 . See note 12.