Given the Secretary's discretion whether to lease the lands at all, plaintiffs' offer to lease could not, in and of itself, vest plaintiffs with any right to a lease . . . Burglin v. Morton, 527 F.2d 486, 488 (9th Cir. 1976) (emphasis added). Hereinafter Burglin I; see also Arnold v. Morton, 529 F.2d 1101, 1106 (9th Cir. 1976); McTiernan v. Franklin, 508 F.2d 885, 887 (10th Cir. 1975); Duesing v. Udall, 121 U.S.App.D.C. 370, 372, 350 F.2d 748, 750-751 (1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966); Pease v. Udall, 332 F.2d 62, 63 (9th Cir. 1964); Haley v. Seaton, 108 U.S.App.D.C. 257, 260-261, 281 F.2d 620, 623-624 (1960); Burglin v. Secretary of the Interior, Nos. A75-113 Civ. and A75-232 Civ. at 6 (D.Ak. Dec. 29, 1976) aff'd by mem. op. 582 F.2d 1289 (9th Cir. 1978); Rowe v. Kleppe, Civ. No. 75-1152 at 4-5 (D.D.C. July 30, 1976); McDade v. Morton, 353 F. Supp. 1006, 1010 (D.D.C. 1973), aff'd 161 U.S.App.D.C. 237, 494 F.2d 1156 (1974). Moreover, the Court of Appeals for the District of Columbia Circuit held in Schraier v. Hickel, that the pendancy of an applicant's offer could not interfere with a state selection because (1) "[t]he fact that the Bureau published a notice that it would receive offers to lease did not preclude a later exercise of discretion to decline to lease" and (2) an "application for lease, even though first in time or drawn by lot from among simultaneous offers, is a hope, or perhaps expecta
458 F.Supp. at 934. As the District Court concluded, petitioners gain little by relying on Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965), and Duesing v. Udall, 121 U.S.App.D.C. 370, 350 F.2d 748 (D.C. Cir. 1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966). Those cases construed what is now § 17 of the Act, 30 U.S.C. § 226 which governs oil and gas leases.
Appellee challenges appellant's standing to question either the validity of Order No. 2952 or the absence of an environmental impact statement in relation to it. It is argued that the appellant has not alleged specific injury in fact, nor has he demonstrated that possible injury was arguably within any protected zone of interest to satisfy the criteria recognized in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) and Ass'n of Data Proc. Ser. Org., Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Especially is this true, we are asked to understand, since the filing of an application which has not been accepted "does not give any right to a lease, or generate a legal interest which reduces or restricts the discretion vested in the Secretary." Duesing v. Udall, 121 U.S.App.D.C. 370, 372-73, 350 F.2d 748, 750-51 (1965), cert. denied 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966). Appellee has confused lack of an established property interest with lack of standing to question allegedly unjustifiable obstacles to the perfection of such an interest.
An application for lease, even though first in time or drawn by lot from among simultaneous offers, is a hope, or perhaps expectation, rather than a claim. Duesing v. Udall, 121 U.S.App.D.C. 370, 372, 350 F.2d 748, 750 (1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed. 2d 667; Haley v. Seaton, 108 U.S.App. D.C. 257, 262, 281 F.2d 620, 625 (1960); Dunn v. Ickes, 72 App.D.C. 325, 326, 115 F.2d 36, 37-38 (1940), cert. denied, 311 U.S. 698, 61 S.Ct. 137, 85 L.Ed. 452; McKay v. Wahlenmaier, 96 U.S.App.D.C. 313, 324-325, 226 F.2d 35, 46-47 (1955); United States ex rel. Roughton v. Ickes, 69 App.D.C. 324, 327-328, 101 F.2d 248, 251-252 (1938); see also Southwestern Petroleum Corp. v. Udall, 361 F.2d 650, 654 (C.A. 10, 1966); Pease v. Udall, 332 F.2d 62 (C.A. 9, 1964). Of course, as appellant points out, the clause in the Statehood Act excepting "existing valid claims" means something less than a "vested right."
Subsections (b) and (c) make it "mandatory . . . who is to get the lease if it is decided that a lease will be issued — if there is a known geologic structure, the highest bidder (competitive lease); if not, the applicant first in line [noncompetitive lease]." Duesing v. Udall, 350 F.2d 748, 750 (D.C. Cir. 1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966); Burglin, 527 F.2d at 488. Of course an applicant for a lease under the Mineral Leasing Act is entitled to certain legal protections.
The Supreme Court in Udall v. Tallman, 380 U.S. 1, 4, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965) noted that "[t]he Mineral Leasing Act . . . 30 U.S.C. § 181 et seq. . . . gave the Secretary of the Interior broad power to issue oil and gas leases [on certain public lands] . . ." and that ". . . it left the Secretary discretion to refuse to issue any lease at all on a given tract." Interpreting that section of the Act concerning the issuance of oil and gas leases, Judge Leventhal, in Duesing v. Udall, 121 U.S.App.D.C. 370, 350 F.2d 748 (1965), states that: "[t]he filing of an application which has not been accepted does not give any right to a lease, or generate a legal interest which reduces or restricts the discretion vested in the Secretary whether or not to issue leases for the lands involved." Id.
To the contrary, the statutory standard is expressed in such general concepts that it requires and must contemplate the exercise of discretion in choice among various rational alternatives none of which can fully satisfy all demands of competing interests. Cf. Duesing v. Udall, 1965, 121 U.S.App.D.C. 370, 350 F.2d 748, * * *. Moreover, the absence of any provision in the Mass. Transportation Act for judicial review of the Secretary's determination suggests that Congress recognized that the Secretary of Labor is at least as competent as a court to achieve such an accommodation of diverse and often conflicting social and economic interests as must be made in determining what employee protective arrangements incidental to mass transportation projects are `equitable' and `necessary.' We are concerned here with a type of determination that `does not present questions of an essentially legal nature in the sense that legal education and lawyers' learning afford peculiar competence for their adjustment.' Frankfurter, J., concurring in Driscoll v. Edison Light Power Co., 1939, 307 U.S. 104, 122, 59 S.Ct. 715, 724, 83 L.Ed. 1134.
The rule-making requirements of section 553 do not apply to matters concerning the public lands; therefore, this argument was properly rejected by the district court. See 5 U.S.C. § 553(a)(2); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 776 n. 1 (1969) (Douglas, J., dissenting) (noting that the public property exception of section 553(a)(2) excludes, among others, the BLM and other agencies dealing with public property); Hunter v. Morton, 529 F.2d 645, 649 (10th Cir. 1976); Story v. Marsh, 732 F.2d 1375, 1384 (8th Cir. 1984); Wilderness Pub. Rights Fund v. Kleppe, 608 F.2d 1250, 1253 (9th Cir. 1979), cert. denied, 446 U.S. 982 (1980); cf. Duesing v. Udall, 350 F.2d 748, 752 n. 4 (D.C. Cir. 1965) (noting that Department of the Interior regulations pertaining to the issuance of oil and gas leases on wildlife refuge lands were related to public property within the meaning of the predecessor statute to section 553(a)(2)), cert. denied, 383 U.S. 912 (1966); McNeil v. Seaton, 281 F.2d 931, 936 (D.C. Cir. 1960) (regulations pertaining to grazing privileges on federal ranges promulgated under the Taylor Grazing Act held to fall within the public property exemption of the predecessor statute to section 553(a)(2)). We hold that the IBLA decision finding American Colloid's claims to Bethel Nos. 1 and 2 null and void ab initio was not arbitrary and capricious.
This presumption extends to the substantive validity as well as the procedural regularity of administrative action. Maryland-National Capital Park Planning Comm'n v. Lynn, 168 U.S.App.D.C. 407, 412, 514 F.2d 829, 834 (1975); Udall v. Washington, V. M. Coach Co., 130 U.S.App.D.C. 171, 175, 398 F.2d 765, 769 (1968), cert. denied, 393 U.S. 1017, 89 S.Ct. 622, 21 L.Ed.2d 561 (1969); Duesing v. Udall, 121 U.S.App.D.C. 370, 374, 350 F.2d 748, 752 (1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966). See cases cited supra note 36.
There is a judicial presumption favoring the validity of administrative action. See Duesing v. Udall, 121 U.S.App.D.C. 370, 350 F.2d 748 (D.C.Cir. 1965), cert. denied, 383 U.S. 912, 86 S.Ct. 888, 15 L.Ed.2d 667 (1966). Where several administrative solutions exist for a problem, courts will uphold any one with a rational basis, but the Secretary's balancing of competing uses must not be an arbitrary one. Udall v. Washington, Virginia and Maryland Coach Co., supra.