submerged lands off the coast of California and other coastal states as between the United States and the respective states has been for some time and now is under consideration by the Department of Justice. Congress, too, in recent years has had occasion to consider this matter, various resolutions having been introduced with reference thereto. House Joint Resolution 5 and House Joint Resolution 34 are pending in the present Congress. This Department, therefore, has suspended action on all of Mr. Jordan's applications and other similar applications."
So far as the question of the right to compel the Secretary of the Interior to comply with the plaintiff's demands, I think the case of United States ex rel. McLennan v. Wilbur, 283 U.S. 414, 51 S. Ct. 502, 75 L. Ed. 1148, is conclusive.In that case the Supreme Court distinguished between the acts of Congress which gave a positive mandate to the Secretary and those in which it merely gave permission to take certain action in his discretion. The court also distinguished between applicants for mere privileges, such as the plaintiff in this case, and those persons who, because of expenditures, or otherwise, deserve special consideration. In that case I think the plaintiff was in a stronger position than in the present case. The facts do not appear fully in the opinion of the Supreme Court but are stated more fully in the dissenting opinion of Justice Van Orsdel in the decision of that case in the Court of Appeals. His opinion appears in 60 App. D.C. 11, at page 16, 46 F.2d 217, at page 222.
The plaintiff here is not claiming that the defendant is depriving him of any preference right that he may have over others but he has no vested right certainly other than any such preference he may have provided the Secretary deems it advisable to make any lease of the rights to the land in question.
The case, I think, is also controlled by the decision of the Court of Appeals in the case of Dunn v. Ickes, 72 App.D.C. 325, 115 F.2d 36, which involved applications for oil and gas leases under the same Act of Congress.
So far as the question of the right to a declaratory judgment is concerned I think this case is controlled by the case of Doehler Metal Furniture Co. v. Warren, Comptroller General of United States, 76 U.S.App.D.C. 60, 129 F.2d 43. The granting of these leases being a matter entirely within the discretion of the defendant, the Court has no power to bind his action by a declaratory judgment.
Inasmuch as, in my opinion, the plaintiff has no vested right in this case but comes into court as an applicant for a mere privilege, he is entitled to no relief against the defendant. It is, therefore, unnecessary to pass upon the other questions in this case, that is, the right ot a declaratory judgment that the Secretary has jurisdiction, or that the United States has title to these lands and, as to the latter, the question whether the State of California is a necessary party.
The granting of these leases being a matter within the discretion of the defendant and, as said above, the plaintiff having no vested right to a lease or leases, and there being no genuine issue of any material fact necessary to a decision of the case, the motion for a summary judgment should be sustained.
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