527 F2d 838 Corporation v. C B Morton

527 F.2d 838

174 U.S.App.D.C. 55

KERR--McGEE CORPORATION et al., Appellants,
v.
Rogers C. B. MORTON, Secretary of the Interior, et al.

No. 74--2088.

United States Court of Appeals,
District of Columbia Circuit.

Argued Nov. 26, 1975.
Decided Dec. 23, 1975.

Peter J. Nickles, Washington, D.C., with whom Togo D. West, Jr., Washington, D.C., was on the brief, for appellants.

Carl Strass, Atty., Dept. of Justice, with whom Wallace H. Johnson, Asst. Atty. Gen., and Edmund B. Clark and David W. Miller, Attys., Dept. of Justice, were on the brief, for appellees.

Before WRIGHT, LEVENTHAL and WILKEY, Circuit Judges.

PER CURIAM:

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1

Appellants seek to compel the Secretary of the Interior to award them an oil and gas lease on Tract 2124 on the Outer Continental Shelf. See 43 U.S.C. § 1337(a) (1970). All bids on Tract 2124 were rejected as being too low, including the high bid submitted by appellants which was 16 per cent of the risk-free value set by the Government. Adjacent tracts received high bids of between 51 and 731 per cent of the risk-free value. Kerr-McGee's bid on Tract 2124 was $142 per acre. Adjacent tracts drew high bids per acre of $720 to $5,674. In his notice of bid in this case the Secretary clearly reserved 'the right and discretion to reject any and all bids, regardless of the amount offered.'

2

The District Court upheld the action of the Secretary on the ground that his decision is committed by law to agency discretion. 5 U.S.C. § 701(a)(2) (1970). We do not agree with the District Court that the Secretary's decision in this case is committed by law to agency discretion. 'The legislative history of the Administrative Procedure Act indicates that (the 'committed to agency discretion' exception) is applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply." Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 820, 28 L.Ed.2d 136 (1971). This case is not one of those rare instances. We affirm the District Court, however, on the ground that the Secretary did not abuse his discretion in rejecting appellants' bid. See Superior Oil Co. v. Udall, 133 U.S.App.D.C. 198, 204, 409 F.2d 1115, 1121 (1969).

3

Affirmed.