North Dakota v. United States – Oral Argument – November 02, 1982

Media for North Dakota v. United States

Audio Transcription for Opinion Announcement – March 07, 1983 in North Dakota v. United States

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Warren E. Burger:

We will hear arguments next in North Dakota against the United States.

Mr. Attorney General, I think you may proceed when you are ready.

Robert O. Wefald:

Mr. Chief Justice, and may it please the Court, this appeal involves a statutory construction of the word 1961 and the constitutionality of certain North Dakota statutes believed by the United States to unconstitutionally interfere with the acquisition of wetland easements for waterfowl production areas in North Dakota’s prairie pothole region covering central and northwest North Dakota.

Three issues developed at the proceedings below.

Briefly, these are as follows.

First, the United States sought a declaratory judgment action that these several North Dakota laws are unconstitutional.

Second, the district court held that these laws are unconstitutional, and that no consent is required.

Third, the United States Court of Appeals for the Eighth Circuit held not only are these laws unconstitutional and that no consent is required, but that consent is present here and cannot be revoked.

As you will see, the dispute between the United States and North Dakota has been narrowed through several concessions made by the United States in its brief.

The United States has conceded that consent is required, but that consent can be revoked after a reasonable period of time, and that some of the challenged laws are constitutional, and that others are constitutional only insofar as they cover future acquisitions of wetlands in excess of those wetlands not yet acquired under consents the United States claims to hold.

Let me first deal with the question of consent, including whether it is required, whether it has been revoked, and whether it has been exhausted.

I then want to deal with the constitutionality of the North Dakota laws in question.

Our argument today is staged against the backdrop of our position that the acquisition of these wetlands involves two separate and disinct steps.

First, consent must be obtained from our governor.

Second, easements must be governed by the real property law of the state of North Dakota.

Let me point out that we are talking here about easements, not fee land.

Secondly, I want to point out that consent seems to be the main issue as opposed to the unconstitutionality of our laws, because the United States has essentially taken the position that our laws basically constitute a condition of prior gubernatorial consent, and to that extent it cannot fall through on the revocation that we cannot do it.

In other words, the governor says… the United States says, you cannot revoke, you cannot condition your laws.

Let’s first of all talk about the consent and the first concession on Pages 12 and 16, particularly Footnote 11 of the United States’ brief on Page 16.

I think that concession, our brief adequately sets forth the laws we are talking about and the particular error made by both the Eighth Circuit Court of Appeals and the District Court, where they held that the gubernatorial consent provision simply doesn’t apply, and I think that is adequately taken care of, and I will not be addressing that particular point.

Let’s talk now about the consent and the revocation of the consent.

The revocation we are talking about here is prospective only.

North Dakota does not assert that the consent of our governor to the acquisition of these wetland easements is retroactive.

We are only talking about prospective.

This bill, the Wetlands Loan Act of 1961–

Harry A. Blackmun:

Mr. Attorney General–

Robert O. Wefald:

–Yes, sir.

Harry A. Blackmun:

–prospective in what sense?

As I… Maybe I am confused, but it seemed to me there were 700,000 acres in which easements had been formally acquired.

Robert O. Wefald:

765,000, Your Honor.

Harry A. Blackmun:

And approximately the same amount in which they were described as unused or unconsummated.

Would your prospective argument not apply to the latter group?

Robert O. Wefald:

What we are suggesting is that there is… that the governor of our state has the right to say, I hereby no longer consent to the acquisition of any easements.

What the United States is suggesting is that somehow in the early sixties, 1961 through ’64, and again in the early seventies with Governor Link, that certain consents were signed, and that those consents are irrevocable.

Now, an example of that consent is found on the Joint Appendix, Page 3.

A couple of things to notice about that consent form, first of all.

That was prepared by the Fish and Wildlife Service.

That document is on official Wildlife Service letterhead.

The United States says, well, it says unequivocally in there that the governor consents, and it doesn’t say that he says, I am reserving the right to revoke.

Query: If the United States, the Fish and Wildlife Service, as the drafter of that instrument had wanted to be clear that the governor could not revoke, couldn’t they have out into their instrument, this should be irrevocable?

And query: Do you think our governor would have signed it under that circumstance?

I doubt it.

And that’s the issue here.

Harry A. Blackmun:

Well, Governor Guy was an able person.

Robert O. Wefald:

He certainly was, a good governor.

So?

Robert O. Wefald:

So he signed a document prepared by the Fish and Wildlife Service that said, we are now going to be consenting to the acquisition of easements in North Dakota.

He has also signed an affidavit which is in the Joint Appendix that says, I am… I never intended to relinquish my right to approve from time to time.

William H. Rehnquist:

General Wefald–

Robert O. Wefald:

Yes, sir.

William H. Rehnquist:

–I found the record, or the opinions, at least, a little skimpy as to exactly what each of these two stages consist of.

The first, I gather, is getting consent from the governor.

Robert O. Wefald:

That’s correct.

William H. Rehnquist:

Which is given on a county by county basis?

Robert O. Wefald:

Yes.

William H. Rehnquist:

And does the government, the federal government, or the Fish and Wildlife Service simply come in with the sort of consent form that appears on Page 3 of the Joint Appendix?

Does it come in with that along with a map showing, you know, how much in Kidder County is being taken, or does the governor simply sign these without having any map before him?

Robert O. Wefald:

You raise an excellent question, Justice Rehnquist.

When these signings took place, we don’t know exactly what the governor had before him.

We know that there was no specific indication as to what particular potholes, what particular wetlands were going to be acquired.

William H. Rehnquist:

Well, that was the governor’s problem, I suppose.

I mean, if he hadn’t wanted to sign the consent, he could have said, show me some maps.

Robert O. Wefald:

Well, I think if the governor’s problem at all was that he believed that the United States would treat him fairly in this regard, and that he put his faith in the fact that this acquisition was going to take place over a period of time.

Now, one other thing to point out, which is sort of an interesting observation.

We first discovered these consents for these 41 counties in 1979, when the interrogatories were answered by the United States government.

Warren E. Burger:

When you say you first discovered them–

Robert O. Wefald:

That is, we don’t have copies of those.

You see, they are on official Wildlife stationery.

They were taken back by them.

We didn’t know they existed.

Warren E. Burger:

–But you are running a state government.

I mean, you could have asked for a copy if you wanted one.

Robert O. Wefald:

Certainly we could have.

William H. Rehnquist:

You don’t say we should appoint a guardian for the state of North Dakota.

0 [Generallaughter.]

Robert O. Wefald:

Absolutely not.

And we do say that we ought to be able to rely on the federal government.

These acquisitions were going to take place over a period of time.

What would the United States–

Byron R. White:

What was the purpose of the governor ever signing these authorizations if it was a parcel by parcel thing?

He authorized the acquisition of certain acreages in each county, certain acreages–

Robert O. Wefald:

–Not specific acreages.

Byron R. White:

–and your claim is that… Well, do you mean not specific parcels… up to any amount he agreed to.

Robert O. Wefald:

That’s it.

Byron R. White:

And now you are saying it has to be a parcel to parcel thing.

Well, there was no possible reason for ever getting the authorization then.

Robert O. Wefald:

Well, first of all–

Byron R. White:

He should have just said, wait a minute, George, when you get ready to acquire a parcel, just come back and ask me.

Robert O. Wefald:

–Sure.

Byron R. White:

But he didn’t.

Byron R. White:

He says, go ahead and acquire 50,000 acres.

Robert O. Wefald:

Ah ha.

He didn’t go to the Fish and Wildlife Service and say, I want to give you a consent for 41,000 acres.

Byron R. White:

No, no.

Robert O. Wefald:

They came to him and said, we want you to sign off on 41,000 acres of land.

Byron R. White:

And neither did they ask him to give them anything.

They just wanted–

Robert O. Wefald:

And that’ the… The reason the United States came to our governor is because the Congress said that it wanted to continue the partnership established in 1959.

I agree with the position of the United States which is that if Congress had not authorized us to consent by law or our governor to consent, that we would have no right to interfere or to be involved in the acquisition process whatsoever, but this federal-state partnership was created by the Congress.

William H. Rehnquist:

–General, you talk about the governor’s giving the government, giving the federal government, as if the government were kind of conveying state lands, but I take it after the governor consents, that just opens up the acquisition, or if the law provides for a condemnation process.

The government still has to go to individual owners in the state of North Dakota and then pay, doesn’t it?

Robert O. Wefald:

Absolutely correct.

And that is what they did over a period of time.

William H. Rehnquist:

And what you are saying is that what the government has already acquired from individual owners under these consents should be inviolate, but as to land for which consent is still outstanding, but where the interest in the land hasn’t been acquired from the individual owner, as to that, the consent should be revocable.

Robert O. Wefald:

That’s correct.

Byron R. White:

Well, why shouldn’t the past acquisitions where individual parcels hadn’t been submitted to the governor, why wouldn’t they be vulnerable?

Robert O. Wefald:

Your Honor, it is not a question of whether or not the governor had consented to specific parcels.

It’s a question of whether the United States is still ongoing in its acquisition process, which it was until they abruptly stopped on July 1 of ’77.

They have under those consents, if they were to proceed ahead, they claim the right to acquire more easements.

we say you don’t, because that consent is revocable and our governor–

Byron R. White:

And it has been revoked, you say?

Robert O. Wefald:

–Well, all we can tell you today affirmatively is that they hold no consent from Governor Olsen to go about this business, and until they hold a consent from Governor Olsen, they are not authorized by this waterfowl… Wetlands Loan Act of 1961 to come into our state and acquire easements with the fund, with the Stamp Act fund.

Sandra Day O’Connor:

Well, they do have the unused consent forms from previous governors, right?

Robert O. Wefald:

They have… they claim that they have acreages yet to acquire.

They claim that they have about 700,000 or 600,000 yet to acquire, yet they only want to acquire 20,000.

Sandra Day O’Connor:

All right, and you are taking the position now that maybe those have been completely used, and furthermore, you are taking the position that maybe the original consent was not sufficiently specific, right?

Robert O. Wefald:

As to the specificity–

Sandra Day O’Connor:

Did you make those arguments below?

Robert O. Wefald:

–The argument–

Sandra Day O’Connor:

Or are we hearing those for the first time here?

Robert O. Wefald:

–The argument with respect to the acreage was made at the Eighth Circuit Court of Appeals.

Sandra Day O’Connor:

How about the specificity?

Robert O. Wefald:

I believe it was.

Sandra Day O’Connor:

You don’t know?

Robert O. Wefald:

I do not know.

Sandra Day O’Connor:

Did you make the argument, Attorney General?

Robert O. Wefald:

No.

Now, with respect to this consent, it goes back to this federal-state relationship.

What we perceive is the Congress intending to create a partnership.

We think that we are not the equal partner in this relationship.

In fact, we are not even a junior partner.

Our status at best is one of a minority stockholder in a closely held corporation.

We simply aren’t… It’s as if we put our capital in at one point and all of a sudden it’s lost forever.

If Congress–

John Paul Stevens:

May I ask you one other question–

Robert O. Wefald:

–Yes, sir.

John Paul Stevens:

–about the specificity of the consent?

Have you abandoned the argument that I thought you were making in your brief that they had to be parcel by parcel?

Robert O. Wefald:

That’s what is suggested in the Swan Lake case.

What we are suggesting–

John Paul Stevens:

But what is your position?

Robert O. Wefald:

–We are not suggesting that applies retroactively.

John Paul Stevens:

You suggest… but are you suggesting the statute requires parcel by parcel consent?

Robert O. Wefald:

No.

Byron R. White:

But you say that until the consent is revoked, or something equivalent to it, a–

Robert O. Wefald:

They can go ahead.

Byron R. White:

–they can go ahead–

Robert O. Wefald:

Right.

Byron R. White:

–even though it isn’t parcel by parcel consent?

Robert O. Wefald:

That’s correct.

Robert O. Wefald:

Yes, sir.

And that’s what they have done in fact, and that is how they get the 765,000 acres that they are claiming that show within the boundaries of 4.8, but we will talk about that in just a moment.

John Paul Stevens:

May I just ask you one other–

Robert O. Wefald:

Yes, sir.

John Paul Stevens:

–What is the relevance of your parcel by parcel consent argument in your brief then?

Robert O. Wefald:

Oh, I think it is interesting with respect to the question of specificity.

I guess I wouldn’t rest my entire case on the specificity point.

John Paul Stevens:

Well, you mean, we can just forget about that part of it?

Robert O. Wefald:

Well, I want you to think about it, please.

Let’s take a look at that consent again.

Byron R. White:

South Dakota area.

North Dakota area.

Robert O. Wefald:

Yes.

Well, whatever.

I think it is fair to ask some questions about Congressional intent.

I think it is fair to believe that Congress in its refusal to repeal the gubernatorial consent provisions over the years has indeed intended that we have an active voice in this partnership, and in fact we would be able to consent.

It is not that the… the government doesn’t contend that that consent is irrevocable.

It simply says it is irrevocable only after a reasonable period of time.

It is then revocable.

We could have placed conditions, as has been suggested.

Would that have made the government’s position any better had we placed conditions on it?

Thurgood Marshall:

Well, wouldn’t it have been good to have gotten a copy of the thing that the governor signed?

Robert O. Wefald:

That probably would have been an excellent idea, but when you trust the Fish and Wildlife Service, you just have to deal with them as is.

And we did.

We dealt in good faith with the Fish and Wildlife Service.

We certainly didn’t suggest at the outset that we had to be doubtful about the federal government.

My goodness.

Thurgood Marshall:

Has your government signed any other papers without keeping a copy of it?

0 [Generallaughter.]

Robert O. Wefald:

When we are dealing with the federal government, we believe that we have a right to believe in the good faith, and in this particular case we did put our good faith into it, and over time that may not have been warranted.

John Paul Stevens:

May I ask one other question?

Robert O. Wefald:

Yes, sir.

John Paul Stevens:

You said the government concedes that these consents are revocable.

I didn’t read the government’s brief that way.

They say in words,

“The consent, once given, cannot be revoked. “

on Page 22.

Robert O. Wefald:

Well, let me see.

They do explain on several pages in their brief, specifically 14, 25, 26, and 27, that they consent can be subject to revocation after a reasonable period of time.

That is the qualifier they put on it.

They don’t say that it simply can never be revoked.

They put a qualifier upon it.

And I indeed agree that in fact it is revocable and was intended so by the United States Congress, and that in fact the federal government is not suffering any detriment whatsoever by virtue of the prospective revocation.

All they simply have to do is work with us.

William H. Rehnquist:

Have any of Governor Guy’s or Governor Link’s successors in office attempted to revoke the consent?

Robert O. Wefald:

The point is simply this.

The United States today does not hold a consent from Governor Olsen.

Byron R. White:

I know, but isn’t that a yes or no answer to that?

Robert O. Wefald:

The answer is, no, they haven’t.

There is no specific document signed by Governor Link, Governor Guy, or Governor Olsen that says, I hereby revoke, period.

William H. Rehnquist:

Well, have there been things other than specific document signings that might indicate an intent to revoke?

There has been a statute, hasn’t there?

Robert O. Wefald:

Well, there has been–

Byron R. White:

A state statute, which–

Robert O. Wefald:

–Those… but those, interestingly enough… the question was with respect to the governor’s revocation, and the governor has not.

The Fish and Wildlife Service has treated the enactments of 1977 as a revocation because they said, these constitute conditions with which we cannot live.

You cannot do that, because you cannot revoke.

Therefore, on the advice from the Attorney General of the United States, we are only going to try to acquire this one piece of land, and we are going to stop right here and bring a lawsuit, and not acquire any more land until such time as we resolve this at this Court.

Now, so for all practical purposes, the United States has treated it as a revocation, although they do not argue as such.

Byron R. White:

–A legislative… a legislative revocation.

Robert O. Wefald:

And in fact, the revocation that the legislature specifically imposed was a revocation of our 1931 legislative consent to the acquisition of refuges… lands.

Byron R. White:

If the governor… if the state law purported to revoke a governor’s consent, and the governor turned right around and gave it again, I suppose as far as the federal law is concerned the condition would be satisfied.

There would be consent.

Robert O. Wefald:

It is simply the governor has not consented.

They hold no consent from Governor Olsen.

Harry A. Blackmun:

May I ask an impertinent question?

Robert O. Wefald:

Sure.

Harry A. Blackmun:

Are there any political overtones in this litigation?

I don’t… I am not close enough to North Dakota politics.

Are the three governors whose names have been mentioned, Guy, Link, and Olsen, are they all of the same party?

Robert O. Wefald:

No, they are not.

Harry A. Blackmun:

Which is who?

Robert O. Wefald:

Guy and Link are Democrat, Olsen is Republican.

And there are no… this… over the years starting with the Kennedy Administration this hasn’t been a partisan political issue.

We have been unilaterally sort of not had a good relationship with all the Secretaries of Interior until this year, and we are very pleased with the present relationship that we do have.

I wanted to note that for the record.

0 [Generallaughter.]

Let’s talk about the other point.

Harry A. Blackmun:

But you are interested in keeping the ducks breeding and flying.

That is kind of a major industry is the Dakotas.

Robert O. Wefald:

Well, it sure is.

We are the duck factory of America, and it is indeed a big industry in North Dakota.

A lot of hunters come in.

And we have done our part since statehood, since the first cultivated land was broken in North Dakota.

Harry A. Blackmun:

It is impossible to find a lawyer practicing during the duck season, isn’t it?

0 [Generallaughter.]

Robert O. Wefald:

Well, we have some goose hunters and duck hunters, although I myself don’t do that.

Let’s talk about this 4.8 million acres for a moment.

I want to lodge with the Court as a part of this argument this really nice map.

It has marked on it in purple all of the legal subdivisions constituting this 4.8 million acres of easement, and you take a look, you’ve got to remember that the total legal subdivision… holding fee in an easement is about 5.3 million.

Robert O. Wefald:

That is 8,300 square miles, bigger than the entire state of Massachusetts, New Jersey, et cetera.

I must point out in fairness that when we show the legal subdivisions of 4.8 million acres, it is the position of my Sister Etkind and the United States that the lands claimed directly by the United States are about 765,000 wetland acres to which they hold easements.

Our position is–

John Paul Stevens:

What is this map?

Is it part of the record, or just–

Robert O. Wefald:

–No, it is basically information.

It has not been ever put in as an exhibit.

John Paul Stevens:

–Your opponents have seen it, though?

Robert O. Wefald:

They have.

And that is why I explained that we have a difference of opinion as to what it shows, and what is in there.

I think that as a backup position with respect to the question of consent and the acquisitions, that even if it is not necessary to address the question of revocability, I think we can successfully find that the government has exceeded all of its acreage acquisitions.

They have legal subdivisions describing easements in North Dakota totaling about 4.8 million acres.

That is well in excess of about the 1.3 million acres that they were authorized to acquire as shown in the table in the Joint Appendix at Pages 4 and 5.

Incidentally, we use the figure of 1.5, but I think it is closer to 1.3, because there were some… you are only supposed to take the last figure as shown on the particular appendix page.

Sandra Day O’Connor:

Are those larger acreages paid for out of the fund?

Robert O. Wefald:

No.

They are not paid for.

Unfortunately, they take a legal description to it, and they claim to impose no restrictions on it except that the farmer can us it only insofar as it does not interfere with or violate the restrictions on wetlands.

Sandra Day O’Connor:

Does the legislation in your view require the consent of the governor or the state agency only for acquisitions out of the fund?

Robert O. Wefald:

Yes, and that is what the law specifically provides.

It is just that the Congress put the money into it, and has continually put money into that fund for the purpose of making these particular acquisitions, but the United States in this particular case has acquired 4.8 million acres, and there are several cases below that in fact pose… that in fact bring all the total legal subdivision into the National Wildlife Refuge System and not just the waterfowl production areas, and in fact in the untried case of Towner v. Key, on Footnote 14 of Page 19 in the United States’ brief, the United States in fact claims the entire tract is part of the National Wildlife Refuge System, but it says that it is only for access.

Let’s take a look at the laws for just a few moments here that are alleged to be unconstitutional.

The laws basically are in two groups.

One is entitled 47, and that’s the one that deals strictly with easements.

That’s the one that says all easements in North Dakota, regardless of by whom held, will not be in excess of 99 years.

No direction from the United States Congress as to how long these easements are to be held.

That is simply an administrative determination by the Secretary.

At the time the legislation was enacted, they were taking easements of 20, 30, up to 99 years.

The Secretary desires perpetual easements, but that is not required, and in fact that is governed by the law of the state of North Dakota.

We deem it not to be an impediment, and we believe that it should be upheld as to constitutionality.

Robert O. Wefald:

As to Section S of the provisions in Title 20.1, they are in 0218, 18.1, 18.2, 18.3, somewhat run together, 18 is our 1931 legislative consent, and we simply amended that to say that if you don’t agree with us, that is, if you don’t go along with the other sections, we are going to revoke the consent.

18.1 simply provides for public participation in the wetlands acquisition process, public comment.

I think there is an objection to the environmental impact statement type requirement, but as we argue this case here in the capital of this great nation from which NEPA came and the environmental impact statements, surely it is clear that there is a right and a good reason for public participation and a need for doing so, whether it is at the federal level or the state level, and we simply imposed a reasonable and a rational requirement in fulfillment of our sovereignty.

The 18.2 law advises the landowners of their right to negotiate.

There is nothing wrong with that.

There can’t be anything unconstitutional about that.

And indeed, the United States concedes that that is constitutional, notwithstanding the pronouncements of the courts below.

They simply indicate that the constitutionality is dubious insofar as that section talks about after expanded wetlands and the right of the farmer to drain those after expanded wetlands back down to the original wetland parameters.

Insofar as that happens, we believe that unless the government negotiates specifically with the individual, unless the farmer knows of his right to negotiate about the after expanded wetlands, that the government has not made a valid acquisition.

In other words, if they want the after expanded wetlands, then they should negotiate with the farmer, and the farmer should be free to negotiate, and I can’t imagine that there is anything unconstitutional with that.

Yes, sir.

Byron R. White:

Is it your position that the state statutes should be interpreted as simply putting conditions on the pre-existing governor’s consent?

Robert O. Wefald:

Yes.

That is as to–

Byron R. White:

So that Governor Guy’s consent has never been revoked.

Robert O. Wefald:

–That’s correct.

Byron R. White:

And so if the United States must have a governor’s consent… suppose the United States went ahead and satisfied the statutory conditions, the state statutory conditions.

Robert O. Wefald:

Yes.

Byron R. White:

It would still have to satisfy the federal statutory conditions.

Robert O. Wefald:

That’s correct.

Byron R. White:

Namely in having a governor’s consent.

Robert O. Wefald:

That’s correct.

Byron R. White:

And that is Governor Guy’s consent.

Robert O. Wefald:

Until such time as it is revoked by Governor Olsen.

Byron R. White:

So the governor’s consent has never been revoked.

Robert O. Wefald:

That’s correct.

Byron R. White:

And so the question is whether the legislature may put conditions on a governor’s consent that the federal act requires that the federal act does not authorize.

Robert O. Wefald:

As to the question of the relationship between our governor and our legislature, I believe that is properly a matter for state law and our state courts, and is not properly before this Court.

Byron R. White:

I know, but it is still a question of whether there is a governor’s consent under the federal law.

Robert O. Wefald:

Yes.

Byron R. White:

And the federal law doesn’t require any legislative consent.

Robert O. Wefald:

That’s correct.

Byron R. White:

And you do not claim now that Governor Guy’s consent has ever been revoked.

Robert O. Wefald:

It has never been specifically revoked by Governor Guy, Governor Fink, or Governor Olsen.

Byron R. White:

Or by anybody else.

Robert O. Wefald:

That’s correct.

Byron R. White:

And if the United States satisfied the legislative conditions imposed by the state legislature, it could go ahead based on Guy’s consent.

Robert O. Wefald:

It could until Governor Olsen revokes it, which he will do.

Byron R. White:

Well, he has never revoked it.

Robert O. Wefald:

Yes, but he simply hasn’t had to act–

Byron R. White:

You are not authorized to say that he has revoked it.

Robert O. Wefald:

–No, he hasn’t.

Byron R. White:

You don’t even claim that he has revoked it.

Robert O. Wefald:

I do not claim he has revoked it.

I have a reasonable expectation as to what he will do when I talk to him about it, but he has not done so to this point.

I will reserve the balance of my time for rebuttal.

Warren E. Burger:

Ms. Etkind.

Barbara E. Etkind:

Thank you, Mr. Chief Justice, and may it please the Court, I would like to begin, if I may, with a few concerns that were raised during General Wefald’s argument.

With respect to your question, Justice Blackmun, about prospective, retrospective revocation, I just want to make clear we believe that it is a prospective revocation here.

He is retrospectively revoking those consents that have been given, even though they have not yet been exercised by–

Byron R. White:

Who is?

Barbara E. Etkind:

–Well, I would say… we would be–

Byron R. White:

I take it that the Attorney General doesn’t claim Governor Guy’s consent has ever been revoked.

Barbara E. Etkind:

–We would be very pleased if the consent had ever been revoked, but I feel constrained to show you that in a stipulation filed in the District Court, North Dakota took the position that the consents could be cancelled and in fact had been cancelled.

Byron R. White:

Well, by whom?

Barbara E. Etkind:

They were not specific, but I think–

Byron R. White:

Well, the Attorney General now says the governor’s consent has never been revoked.

Barbara E. Etkind:

–Okay.

Byron R. White:

And if you were going to satisfy the legislative conditions imposed by the state legislature, you would have to still have a governor’s consent, and whose would it be?

Barbara E. Etkind:

Well, we would say that we have the consent of Governor Guy, Governor Link, and… of Governor Guy and Governor Link, and that they remain outstanding.

Barbara E. Etkind:

But as General Wefald explained, Governor Olsen is ready to revoke those consents, and in fact I think that it is a fair reading of the state’s position all along that they have been, that they have been revoked.

Sandra Day O’Connor:

Where is that stipulation?

Is that the stipulation on Page 71?

Barbara E. Etkind:

Yes.

Sandra Day O’Connor:

Of the Joint Appendix?

Barbara E. Etkind:

Yes.

Page 71 and 72, the top of Page 72, right before the paragraph numbered 4.

I would also like to take… to point out in contrast to the implication that the United States was overreaching the state of North Dakota when we first went to get these consents, as was pointed out, Governor Guy had an opportunity to sign any sort of consent he wanted to sign.

In fact, with respect to our fee acquisitions, he explicitly kept the right to consent on an acquisition by acquisition basis, and if he had wanted to do so with respect to fee… with respect to easements, he could have done that as well.

William H. Rehnquist:

Ms. Etkind–

Barbara E. Etkind:

Yes.

William H. Rehnquist:

–supposing that the 1977 statute, instead of reading the way it did, said that the legislature of North Dakota hereby cancels the consent previously given by Governors Guy and Link and forbids any future governor of North Carolina from ever entering into such consents.

Barbara E. Etkind:

I believe that the legislature of North Dakota could do that on a prospective basis.

William H. Rehnquist:

If the governor can speak for the state, presumably the legislature can restrict his authority to… under federal law.

Barbara E. Etkind:

I believe that the governor needed authority under state law to consent, and if he did not have that authority, then he could not make the consent.

Byron R. White:

Well, the stipulation just recites what the state’s position is.

Barbara E. Etkind:

That’s right.

Byron R. White:

And it recites your contrary position.

Barbara E. Etkind:

That’s right.

Byron R. White:

And–

Barbara E. Etkind:

But it recites their position–

Byron R. White:

–But it doesn’t… but it doesn’t explain how the state claims cancellation has been effected.

Barbara E. Etkind:

–That’s right, but in 19–

Byron R. White:

Have they ever taken a position in this litigation how it has been effected?

The Attorney General now says it has never been effected.

Barbara E. Etkind:

–I understand that.

In the papers in the District Court, the… North Dakota took the position that our declaratory action judgment action was not right on the ground that the gubernatorial consents had been revoked, and since we–

Byron R. White:

By whom?

Barbara E. Etkind:

–The state… at that point, the state was relying on a 1979 statement by Governor Link.

Now, he said in that statement, I will not consent to any further wetland acquisitions.

Barbara E. Etkind:

We explained in our brief that we think that is ambiguous, but I think the fair understanding of what he was saying is that he viewed the consents that already were in effect not to be in effect, and he wasn’t going to revitalize them.

Warren E. Burger:

That is somewhat ambiguous at the top of Page 72, is it not?

Barbara E. Etkind:

Well, I think they are more like alternative arguments than ambiguous.

Warren E. Burger:

They say it can legally be cancelled unilaterally by the state, that they have been cancelled, and that even if they have not been cancelled, and so on.

Barbara E. Etkind:

That’s right, but I think they were trying to make alternative arguments.

North Dakota has come to rely more and more on its argument that even if its governor’s consent cannot be revoked, the United States already has acquired more acreage than the governors already… ever approved, but the state did not present this issue in its jurisdictional statement, and it therefore cannot rely on it before this Court, nor is that issue fairly comprised within the issues that were presented.

And in any event, the contention is specious.

It is because of the peculiar nature of waterfowl production area country, that is, lands that have been… that are characterized by numerous small, scattered, and irregularly shaped wetland.

The Secretary early on adopted the practice of acquiring easements covering all of the wetlands occurring on a given described legal subdivision, but while the easement instrument describes a legal subdivision, the easement restrictions which are only on draining, filling, leveling, and burning, expressly apply only to the wetlands occurring on that subdivision.

The landowner thus remains completely free to utilize and dispose of the entire balance of his land, that is, the upland, in any way he sees fit.

The only conceivable restriction on the landowner’s use of the uplands, in addition to not impeding the Secretary’s right of access across them to get to the wetlands, is that he cannot take any action on the uplands that would have the expressly prohibited purpose of draining the wetlands.

Indeed, Interior’s standard easement document permits the landowner to farm even the wetlands when they are dry of natural causes.

As General Wefald pointed out, the question before this Court is a straightforward one of statutory construction.

The Duck Stamp Act authorizes the United States to use money from the Migratory Bird Conservation Fund to purchase small wetland and pothole areas, interests in them, and rights of way to provide access to them.

When Congress became aware in the late 1950’s of the ongoing destruction of much of the nation’s wetlands, it authorized the United States to buy up portions of these wetlands in order to preserve the desired waterfowl populations and distribution, and in 1961, in the Wetlands Loan Act, it authorized a $105 million interest-free loan to the Migratory Bird Conservation Fund in order to make possible a crash program of wetlands acquisition.

At the same time, it provided that no land shall be acquired with money from the Migratory Bird Conservation Fund unless the acquisition thereof has been approved by the governor of the state or the appropriate state agency.

The question in this case is whether Congress intended that governors would be permitted to revoke those consents once validly given.

Sandra Day O’Connor:

Are you taking the position that the consent can be revoked within a reasonable time?

And if so, why?

Barbara E. Etkind:

We have conceded that after a reasonable amount of time for the federal government to act on the consents, they… they perhaps could be revoked, but we say that that is not the case here.

Sandra Day O’Connor:

Well, on what do you base that theory?

The reasonable time?

And has it always been your position?

Barbara E. Etkind:

No, it was not the position in the courts below, but then we have come a long way from the position in the… The courts below held that we didn’t need to get any consent whatsoever, but we believe that that flies in the face of the statutory language, as well as in the face of our consistent administrative practice.

Ever since 1961, the Fish and Wildlife Service has gone to the states and has acquired consents for easements for waterfowl production areas.

Byron R. White:

But your practice has always been to do it in the manner you did it here, namely, county by county, rather than parcel by parcel?

Barbara E. Etkind:

That’s not in the–

Byron R. White:

Or do you know?

Barbara E. Etkind:

–I don’t know.

Byron R. White:

Or you have done it both ways?

Barbara E. Etkind:

I believe that we have always done it county by county, but that is not in the record, and I can’t say for certain.

Harry A. Blackmun:

I interrupted Justice O’Connor.

Do you want to answer her question?

Barbara E. Etkind:

Right.

We believe that that question is not presented here, because clearly here the federal government has acted reasonably in not acting on this consent.

Sandra Day O’Connor:

In waiting 17 years?

Barbara E. Etkind:

I’m sorry?

Sandra Day O’Connor:

In waiting 17 years to–

Barbara E. Etkind:

Well, in fact, we have not been waiting 17 years.

Not all of these consents were given at the outset of the program in 1961.

In fact, as late as 1973, Governor Link authorized the acquisition of more easement lands, and in 1977 he authorized some adjustments in the acreage.

So it hasn’t been a full 17… nearly a full 17-year period.

Moreover–

William H. Rehnquist:

–Are there some consents executed by Governor Guy, who was the one that executed them in the early sixties, I take it, that still have not been acquired by the government?

Barbara E. Etkind:

–That’s probably true, because they weren’t done on a parcel by parcel area.

It’s not… I couldn’t say for sure, but I would think that there probably are some areas in some counties that have not–

William H. Rehnquist:

So then Justice O’Connor’s suggestion of a period of 19 years would apply to those particular ones.

Barbara E. Etkind:

–To some… to some acreage.

To some acreage, that’s true.

But the moneys for our acquisitions were not appropriated until… the moneys under the Wetlands Loan Act were not appropriated until the very first instance was in 1963, and since that time we’ve been operating within… we’ve been constrained by the appropriations from Congress under the Wetlands Loan Act and under the revenues that we get from the sale of duck stamps.

William H. Rehnquist:

Well, just as the state, I suppose, has to bear the responsibility for the failure of Governor Guy to ask for a copy, if he didn’t, I suppose the federal government has to bear the responsibility for the failure of Congress to appropriate money.

I mean, that can’t inevitably be a defense to conduct that would otherwise lead to a forfeiture or a divestiture of a claim.

Barbara E. Etkind:

Well, but even within those constraints, regardless of who is responsible for them, we have gotten consents from the governors up to 1.5 million acres, and until 1977 we exercised a full half of those.

We have more than 750,000 acres.

William H. Rehnquist:

Well, but… what have you done, stockpiled the other half?

Barbara E. Etkind:

No.

For one thing, as Congress foresaw, the negotiation process does take some time.

In these programs, we only buy from willing sellers.

We don’t–

William H. Rehnquist:

You don’t have the authority to condemn?

Barbara E. Etkind:

–We have the authority, but we have never exercised it.

William H. Rehnquist:

You have never used it.

Barbara E. Etkind:

Yes.

That, of course, takes some time.

As Congress recognized when it conceived of this program, it was a huge program.

It contemplated the federal government acquiring an additional two and a half million acres of land, and it realized this was going to take some time to do.

It realized the type of intricate planning that was going to be involved.

Contrary to stockpiling our consents, we have had to plan out where we are going to buy these, what would be the lands that would be best used by the expenditure of limited federal funds.

The statutory language, of course, contains no mention of revocability.

It provides simply that no lands shall be acquired until the acquisition has been approved by the governor or appropriate state agency.

It thus makes no provision for the revoking, qualifying, or conditioning of any consent once it is validly given.

By its express terms, all the legislation required is that the governor or state agency at some point have consented to the acquisition.

There is no reason why this plain language should not prevail.

Particularly since in the absence of explicit legislation, the United States does not need a state’s consent to purchase land within its boundaries at all, it would seem that any legislatively imposed consent requirement should be narrowly construed.

William H. Rehnquist:

Why do you say that?

Yes.

Why shouldn’t the full intent of Congress be given expression to?

Barbara E. Etkind:

Well, we believe the full intent of Congress should be, but we believe that the full intent of Congress was that the states had a right to withhold their consent at the outset if that’s what they chose to do, or to condition it prospectively, but not to revoke it once it had been given.

William H. Rehnquist:

Well, I was curious about where you derived the principle of narrow construction.

Barbara E. Etkind:

From the fact that in the normal case, we would be able to just go into a state and buy the land.

William H. Rehnquist:

Well, but Congress has said this isn’t going to be the normal case.

Barbara E. Etkind:

That’s right, but this is a proviso, a limiting proviso at the end of a general enabling provision, and the statutory rule of construction is that such provisions are narrowly construed.

The legislative history bolsters the plain meaning of the statute.

Like the statute itself, the history contains no mention anywhere of a right to revoke gubernatorial consent.

To be sure, Congress intended that the legitimate concerns of the states wouldn’t be ignored, and therefore it required the United States to obtain prior gubernatorial consent, but the main thrust of the legislative history is Congress’s concern with the urgency of the need for the federal acquisition of wetlands.

As I mentioned in response to Justice O’Connor’s question, the Congress knew that it would be impossible for the federal government to bring about a program of this magnitude without meticulous long-range planning, and it would have been wholly inconsistent with that recognition for Congress to have intended the governors would be free to revoke their consents once validly give, at least until the United States had had a reasonable time to act on them.

The Secretary must be able to rely on the continued effectiveness of gubernatorial consent, at least for a reasonable time, in order to obtain the optimal amount and the type of wetlands in the configurations and in the areas that will most further Congress’s goal of protecting and preserving waterfowl populations and distribution.

Sandra Day O’Connor:

I think there is some tension in your argument that the statute has to be narrowly construed, and yet we should interpret is as giving the state a reasonable time within which to revoke, but 19 years is not a reasonable time.

Barbara E. Etkind:

Well, I don’t think… well, for one thing, our argument doesn’t… this case doesn’t require finding that the states can revoke after a reasonable period of time, since… if you agree with me that we have not been unreasonable here.

Sandra Day O’Connor:

Well, that’s a question that perhaps this Court isn’t equipped to decide.

Barbara E. Etkind:

The question of the reasonableness?

Sandra Day O’Connor:

Right.

Barbara E. Etkind:

I think the Court can look to the state of the record just in the sense of how many acquisitions we have made, with how much money, over the period of time.

I think it’s a question, not necessarily one of a certain number of years.

In some contexts perhaps 20 years would have been unreasonable, if we had had these consents and there were no barriers to our purchasing the easements, but–

William H. Rehnquist:

Wouldn’t you ordinarily have a hearing before some fact-finder on a question such as reasonableness, though, with the focus being on the sort of issues you say, rather than just kind of gleaning from a record that was devoted to focusing on other issues what you can about reasonableness?

Barbara E. Etkind:

–In the ordinary course, perhaps that would be… that would be the thing that would be done.

We submit that isn’t necessary to do here, and we further submit that any further delay in this case would be unfortunate.

As Congress recognized, and is continuing to recognize, these wetlands are disappearing very quickly.

William H. Rehnquist:

Nineteen years is fine, but 20 would be fatal.

Barbara E. Etkind:

If the Secretary could not rely on the continued effectiveness of gubernatorial consents, he would be forced to purchase immediately any land that he could as soon as the governor had consented to its acquisition, last that consent be withdrawn, without being able to weigh the relative merits of potential acquisitions that would have to be purchased out of very limited federal funds.

In addition, if the Secretary could not count on the continued effectiveness of the consents he received, federal resources would be wasted in the negotiations of acquisitions that ultimately could be frustrated by gubernatorial revocation.

Moreover, permitting governors to revoke their consents would seriously delay and therefore ultimately frustrate the purpose of the program as a whole, the acquisition of wetlands.

In each case of revocation, the planning and negotiation processes would have to begin again.

In turn, in view of this rapid shrinkage and destruction of the nation’s wetlands, and the continued escalation of the cost of acquiring them, any delay in acquisition would necessarily result in the ultimate acquisition of fewer acres of wetlands.

Byron R. White:

Why didn’t he just… why was the… why was the position of North Dakota such a hindrance to the Federal Government?

Barbara E. Etkind:

Because we needed their consent, and once they said–

Byron R. White:

Well, why didn’t you just get it?

Barbara E. Etkind:

–After 1977?

Byron R. White:

Yes.

Barbara E. Etkind:

They refused to give it after 1977.

Byron R. White:

No, they didn’t.

They just had conditions.

Barbara E. Etkind:

There was no question that they were refusing to give it.

Byron R. White:

well, did you… did North Dakota take the position that there’s no way that we’ll ever give consent to acquisition of any more wetlands?

I thought there were just conditions on it.

Barbara E. Etkind:

Well, as I said before, I believe it’s been North Dakota’s position that it has revoked.

Byron R. White:

Well, it has revoked.

It may be, they may have revoked.

But they’ve never… has the United States ever tried to satisfy those conditions and get consent?

Barbara E. Etkind:

Governor Link said in 1979 that he would not consent to any further wetland acquisition.

Byron R. White:

Even with the consent… even satisfying the conditions?

Barbara E. Etkind:

Well, he was tieing it to the Garrison diversion project, which… it’s a completely different, completely separate matter.

There have been numerous disputes between the Federal Government and North Dakota, and in a sense the wetlands acquisition program has sort of been held hostage to the resolution of those other disputes.

There was no question that we were not going to be able to get any more land and that they weren’t going to consent to that.

William H. Rehnquist:

Well, Ms. Etkind, why is this one thing, this one question of whether the present Governor or perhaps his predecessor will or will not consent, will or will revoke, so obscure in this record?

I get the impression both from you and your opponent that both of you perhaps, or your clients perhaps, pretty much tiptoed around actually going to Governor Link or Governor Olson and saying, you know, will you revoke or will you consent.

Am I wrong?

Barbara E. Etkind:

I don’t think that’s the case.

I think it was just so clear, there was such hostility, the state was not going to consent to any more.

Byron R. White:

Well, has he ever proposed… have you ever gone to the Governor, Olson or to Link, and said, here’s a tract, a specific tract of land we want to acquire, give us your consent?

Barbara E. Etkind:

Well, that was done with respect to fees, yes.

Since 1977 no fees have been authorized and they have been returned to the state to ask for action on them, and they were refused.

Byron R. White:

By the Governor?

By whom, by the Governor?

Barbara E. Etkind:

Well, they’ve been refused since… they were returned in ’79, so they’ve been… I’m not sure when Olson took over.

Byron R. White:

Well, it’s the Governor’s consent that you needed.

Barbara E. Etkind:

That’s right.

Byron R. White:

Were they turned down, the specific tracts turned down, by the Governor?

Barbara E. Etkind:

Yes.

They have not been… they have not been given.

Whether in fact he signed something that said “Declined”, I don’t know.

But he certainly didn’t approve them, and we gave them for his approval.

The have never been approved.

Thurgood Marshall:

On the question of revocable and irrevocable, that’s what we have to decide.

You found it necessary to get the Governor’s consent.

Barbara E. Etkind:

That’s right.

Thurgood Marshall:

You couldn’t operate without it?

Barbara E. Etkind:

That’s right.

Thurgood Marshall:

Was it your duty to get it irrevocable?

Barbara E. Etkind:

We believe that we did.

Thurgood Marshall:

Well, I don’t see the word “irrevocable” there.

Barbara E. Etkind:

He consented to any wetlands.

Thurgood Marshall:

But I mean, the word “irrevocable” is not there.

Barbara E. Etkind:

No, the word is not there.

Thurgood Marshall:

Well, isn’t that your duty?

You’re the one who was doing the negotiating and you’re using your paper to write on.

Barbara E. Etkind:

Perhaps they could have been more artfully drawn.

Thurgood Marshall:

So you don’t think the state unreasonable in saying the failure of you to do it leaves you outside?

Barbara E. Etkind:

Oh, I do think that is unreasonable.

Thurgood Marshall:

But you said it was a reasonable time, and you will decide what is a reasonable time.

Barbara E. Etkind:

Well, the Court can decide what is a reasonable time.

But I think that as long as the Federal Government has been actively pursuing this program of acquiring the wetlands, which it certainly has… the only reason we haven’t been getting anything from ’77 ’til now is because of the state’s refusal to allow us to… I think that qualifies as reasonable.

Thurgood Marshall:

Well, suppose the present Governor revokes it.

What happens?

Barbara E. Etkind:

If the present Governor revokes?

Thurgood Marshall:

Yes.

Barbara E. Etkind:

I think we can’t purchase, if he could, if he had the power to revoke and he revoked.

Thurgood Marshall:

He issues an executive order and says, by this order I revoke any alleged signed paper you have on your stationery that a former Governor signed.

Barbara E. Etkind:

I believe that’s exactly the question before this Court.

Thurgood Marshall:

Well, could he do it?

Barbara E. Etkind:

No, he cannot do it.

Warren E. Burger:

You’d take him to court if he did it now, I take it?

The Governor, you’d said take him to court.

Barbara E. Etkind:

We believe we’ve taken him to court.

Warren E. Burger:

Well, if it’s a subsequent development on this posture, if it’s done subsequent to this day.

Barbara E. Etkind:

That’s right.

Warren E. Burger:

That’s a new event.

Barbara E. Etkind:

That’s right.

Warren E. Burger:

And you’d take him to court then.

Barbara E. Etkind:

That’s right.

John Paul Stevens:

You’d try to hold him in contempt, wouldn’t you, for violating an outstanding injunction?

Barbara E. Etkind:

I’m sorry?

John Paul Stevens:

Wouldn’t you try to hold him in contempt if he did it now?

Isn’t there an injunction outstanding, a declaratory judgment order at least, that he can’t do it?

Barbara E. Etkind:

I’m not sure that there’s an injunction outstanding.

John Paul Stevens:

Well, at least there’s a judgment that says that he has already consented.

Barbara E. Etkind:

That’s right.

John Paul Stevens:

And he has no right to revoke.

Isn’t that in the district court order?

Barbara E. Etkind:

That’s right.

John Paul Stevens:

I would think he’d think twice before he did it now.

Barbara E. Etkind:

I would hope so.

Thurgood Marshall:

But it sure would standing states’ rights up on its edge if you say that the Federal Government can tell a Governor, you can’t sign a paper.

Barbara E. Etkind:

You can’t revoke.

You can’t revoke something something you’ve already give.

Thurgood Marshall:

I understand.

I wasn’t trying.

The Court of Appeals’ opinion seems to have a little confusion about it.

At page 26A, they recite, “North Dakota contends”, and so forth,

“and that any previous consent has been revoked by Governor Link. “

Perhaps the Attorney General will be able to clear that up for us later on.

Barbara E. Etkind:

I think that’s an accurate reflection of the stipulation, and I think it’s an accurate reflection of the way this case has been litigated all the way through.

I firmly believe that there’s no question in this case that there has been a purported revocation by the Governor, as well as by the legislature.

Once it’s established that Section 715(k)(5) does not permit revocation of consent, at least for reasonable period of time after the consent has been given, it follows that the Northern Dakota statutes at issue here as applied to previously given but not yet exercised gubernatorial consents also are invalid under the supremacy clause as partial revocations of the previously given consent.

Byron R. White:

Ms. Etkind, suppose you submitted a particular tract to the Governor now and he consented, but that the legislative conditions were not complied with.

Do you think you could go ahead?

Barbara E. Etkind:

That I could go ahead and purchase it?

Byron R. White:

Yes.

Barbara E. Etkind:

The federal–

Byron R. White:

What’s the United States’ position with respect to the relationship between the legislation and the power of the Governor to consent?

Barbara E. Etkind:

–The legislation itself works at least a partial revocation of the prior consent.

Byron R. White:

So you think the Governor’s consent, future consents, must be consistent with and comply with the state legislation, the ’77 legislation?

Barbara E. Etkind:

Well, it’s our position that they don’t have to comply with it, that the ’77 legislation is void.

Byron R. White:

I understand.

But even if… suppose we disagreed with you, that the Governor, that the state may revoke, and so you have to go get the Governor’s consent.

Barbara E. Etkind:

Right.

Byron R. White:

But when you go get the Governor’s consent, do you have to get a consent on conditions that are consistent with the state legislature?

Or just, can you ignore the state legislation and just get the Governor’s consent?

Barbara E. Etkind:

If you agree with us that the Governor… I mean, if you disagree with us and you say that the Governor can revoke, then I believe that we would have to comply with the state statute.

Sandra Day O’Connor:

I thought you took the position that at least compliance prospectively was required.

Barbara E. Etkind:

Oh, clearly, yes.

John Paul Stevens:

Well, but you’re not saying that as to land where you claim you already have a consent.

Some large blocks of land, you claim you’ve got consent, but you’re objecting to the fact you have to comply with the conditions of an impact statement and all that sort of thing.

Barbara E. Etkind:

If that consent is valid, which we believe–

John Paul Stevens:

Then you say the legislative conditions that require you to reimburse them for an environmental impact statement and all that sort of thing, that’s invalid?

Barbara E. Etkind:

–Exactly.

John Paul Stevens:

What about the 99-year restriction on the easement; is that equally invalid?

Barbara E. Etkind:

That is equally invalid.

John Paul Stevens:

Is that geared to this particular program, the way these other things are?

You mean, was it–

–Isn’t it a general state law that 99 years is the maximum length of any property easement?

Barbara E. Etkind:

That’s right.

It was submitted together with the other language.

I mean, it was submitted in response to this same federal-state problem.

John Paul Stevens:

But isn’t there a justification for that rule that may not apply to some of these other conditions that place specific burdens on this program?

Barbara E. Etkind:

Well, I think there’s two problems with it.

One is that if you agree with us that the consents we already have are valid, then that would be a partial revocation of that consent because the consents we have allow us to–

John Paul Stevens:

well, but they would argue, I suppose, that what you’ve got a consent to is to acquire in accordance with the otherwise valid laws of the state of North Dakota that do not specifically burden wildlife land any differently than it burdens anything else.

Barbara E. Etkind:

–Well, we would say that those statutes that were in effect at the time the consent was given, but not after-enacted statutes.

John Paul Stevens:

Well, supposing they passed a new recording statute that said every transfer of real property has to be recorded with the secretary of state instead of the country recorder of deed or something like that.

Would you have to comply with that?

Barbara E. Etkind:

Well, I think that would be on a different footing, because this particular statute has a particularly adverse impact on the acquisition program.

In a related context, when Congress amended the Migratory Bird Conservation Act in 1976 to permit the Secretary to purchase easements as well as fees for wildlife refuge purchases, it made clear that he should make every effort to obtain permanent easements rather than lesser interests, because such an approach was in the best interest of the habitat and the migratory water fowl involved.

That’s in the legislative history, the House–

John Paul Stevens:

But they counter by saying, well, that may be better, but you have for a long time acquired a lot of easements for lesser periods, such as 20 years and 30 years.

Barbara E. Etkind:

–That’s not true.

John Paul Stevens:

Oh, isn’t it?

Barbara E. Etkind:

The vast majority of our easements are perpetual easements.

I was told by Interior 99 percent, but that is not in the record.

John Paul Stevens:

What is in the record on that point?

Barbara E. Etkind:

What is in the record is reflected in our brief.

0….

John Paul Stevens:

If it’s in your brief I’ll find it.

Thank you.

Barbara E. Etkind:

In particular, North Dakota Centennial Code Section 20.10218.3 purports to suspend gubernatorial consent to federal acquisition of any land or interest in land with money from the Migratory Bird Conservation Fund.

Now, since this provision amounts to a straightforward revocation of consent, it is void as inconsistent with federal law for the reasons I’ve already discussed.

I see that my time is up.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Attorney General?

Robert O. Wefald:

Yes, sir, I do, Mr. Chief Justice.

Let me just focus real quickly on this questions of the constitutionality of our laws with respect to the argument made again in oral argument by the United States.

They are suggesting that our laws are constitutional to any consents that may go on beyond this 1.3 or 1.5 million acres.

In other words, our laws are constitutional.

The only thing that makes our laws unconstitutional with respect to the United States is that insofar as they purport to condition the acquisition by the Federal Government of another 600 or 700,000 acres, that that constitutes a revocation or a conditioning, in that they cannot do that, and that revocation or conditioning is indeed an impediment to us.

The last section that my sister just mentioned, 18.103, does not revoke, It simply suspends until the Federal Government of the United States gets together or December 31st, 1983.

Harry A. Blackmun:

Mr. Attorney General.

Robert O. Wefald:

Yes, sir.

Harry A. Blackmun:

Is the present Governor Olson the former Attorney General of your state?

Robert O. Wefald:

Yes, sir.

Byron R. White:

Well, did Governor revoke or not?

Robert O. Wefald:

Governor Link… we cannot find a single document where Governor Link said, I revoke these consents signed by myself and governor Guy.

Byron R. White:

But if he said, I will never… I will not agree to any further acquisitions, if some piece of land the United States claimed was covered by a prior consent and Governor Link says, I will not agree to that, has he in effect revoked or not?

Robert O. Wefald:

The only fair reading of that statement made by Governor Link is that it relates to the fee lands and not to the easements.

Let me explain why this consent–

Byron R. White:

You still say, then, that the prior consents have never been revoked by a Governor?

Robert O. Wefald:

–There is no written document to that effect, that’s correct.

Byron R. White:

Or no conduct by them.

Robert O. Wefald:

There’s plenty of conduct to the effect, but there is no written document.

Byron R. White:

That they revoked?

Robert O. Wefald:

Yes.

The United States has treated them as revoked.

We treat them as revoked.

Byron R. White:

Well, the Eighth Circuit said they were revoked, too.

Robert O. Wefald:

Yes.

Indeed, and so did the district court.

Let me explain how this came up–

William H. Rehnquist:

In your argument on direct you said they weren’t revoked, I thought.

Robert O. Wefald:

–Well, they are not revoked through an action of our Governor where he signs a paper saying, I hereby revoke these particular previous consents.

Sandra Day O’Connor:

But you’ve taken the position that the legal effect is they’ve been revoked.

Robert O. Wefald:

Correct.

Sandra Day O’Connor:

That’s the position you’ve taken throughout this litigation until this afternoon, right?

Robert O. Wefald:

In terms of the Governor’s signature, that’s correct.

Byron R. White:

We should judge the case on the ground that North Dakota’s legal position is that the consents have purported to have been revoked.

Robert O. Wefald:

Well, that’s correct.

Let me tell you what came up at the district court level, just to clear this up.

The United States sued us.

Their complaint sought to declare unconstitutional our laws.

That’s all.

At the end of the oral argument the judge suggested, well, I don’t think consent’s necessary.

Robert O. Wefald:

Thereafter followed the stipulation, in a very curious order of events, and it has subsequently snowballed to this particular point.

Thank you.

Warren E. Burger:

Thank you, counsel.

The case is submitted.

The honorable court is now adjourned until tomorrow at 10:00.