449 F.

2d 608
3 ERC 1184, 1 Envtl. L. Rep. 20,607

Chester McQUEARY, individually, and on behalf of all other

persons similarly situated in the City and County
of Denver, State of Colorado, et al.,
Plaintiffs-Appellants,
v.
Melvin LAIRD, Secretary of the Department of Defense, et
al., Defendants-Appellees.
No. 708-70.

United States Court of Appeals,

Tenth Circuit.
Oct. 21, 1971.

Richard D. Lamm (argued), Gerash & Kaiser, Denver, Colo., for

plaintiffs-appellants (Civil Rights-Civil Liberties Research Committee,
Cambridge, Mass., with them on the brief).
Leonard Schaitman (argued), Dept. of Justice, Washington, D. C., with
whom James L. Treece, U. S. Atty., L. Patrick Gray, III, Asst. Atty. Gen.,
Denver, Colo., and Morton Hollander, Justice Dept., Washington, D. C.,
were on the brief, for defendants-appellees.
Before BREITENSTEIN, HILL and BARRETT, Circuit Judges.
BARRETT, Circuit Judge.

Appellants, residents of five counties, including or adjacent to the area known

as Rocky Mountain Arsenal in Adams County, Colorado, filed an Amended
Complaint, in the nature of a class action, against Appellees Melvin Laird,
Secretary of the Department of Defense, Stanley R. Resor, Secretary of the
Army, and Lt. Col. John A. Bryan, Commander of the Rocky Mountain
Arsenal, praying that the Court "* * * declare that the storage of chemical and
biological warfare agents at the Rocky Mountain Arsenal * * * constitutes a
deprivation of the rights of the plaintiffs to life, liberty and property without

due process of law, all in violation of the Fifth and Ninth Amendments to the
Constitution of the United States of America, and contrary to applicable federal
statutes * * * and further that this Court enjoin the defendants from storing
chemical and biological warfare agents in any shape or manner at the Rocky
Mountain Arsenal * * *"
2

The appellees moved to dismiss and/or for summary judgment. On September

11, 1970 the trial court entered its order granting the Motion to Dismiss on the
grounds that this is an unconsented suit against the United States and that the
court is without jurisdiction over the defendants or the subject matter of the
action. This appeal is taken from the Judgment of Dismissal entered September
14, 1970.

The amended complaint: (1) challenged the authority of the defendants to store,
charge and handle the chemical and biological warfare agents at Rocky
Mountain Arsenal; (2) alleged that the warfare agents and munitions were
stored, charged and handled in an open, hazardous and careless manner, subject
to low flying aircraft, earthquakes and sabotage; and (3) alleged that the
defendants had not taken proper safety measures to prevent the hazardous
conditions in violation of 10 U.S.C. Sec. 172, thus creating a nuisance.
Affidavits and other exhibits were filed by the appellees on the Motion to
Dismiss and/or for Summary Judgment.

The Rocky Mountain Arsenal was established in 1942 during World War II. At
the time of its original construction the area was sparsely populated. It was built
to produce toxic chemical agents. Mustard gas was produced there in 1942.
G.B. Nerve Gas was produced there in 1953. No warfare agents have been
produced there since 1957. When this suit was filed the area around the Arsenal
was thickly populated. Nearby Stapleton International Airport had become one
of the nation's busiest terminals. Large quantities of chemical and biological
warfare agents were stored at the Arsenal. The defendants-appellees filed four
affidavits, a report by the National Academy of Sciences and a copy of an
F.A.A. letter to airmen. In a nutshell, these exhibits reflect awareness of the
dangers asserted and that safety standards and procedures had been adopted on
an annual study and inspection basis and complied with.

Appellants alleged jurisdiction under Title 10, U.S.C. Sec. 172 (The Military
Ammunition Storage Act), 28 U.S.C. Sec. 1361 (mandamus over federal
officers, employees and agencies), 28 U.S.C. Secs. 2201 and 2202 (declaratory
judgment and further relief), 5 U.S.C. Sec. 702 (aggrieved person entitled to
review because of agency action), and 28 U.S.C. Sec. 1331(a) (amount in
controversy exceeds $10,000 and arises under the Constitution, laws, or treaties

of the United States).

6

We agree with the trial court's judgment that this is an unconsented suit against
the United States. No statutes cited and relied upon by the appellants for
jurisdiction contain an express waiver of sovereign immunity. The courts shall
not entertain an unconsented suit which, while nominally against officers of the
United States, is in reality against the Government itself. Hawaii v. Gordon,
373 U.S. 57, 83 S.Ct. 1052, 10 L.Ed.2d 191 (1963); Dugan v. Rank, 372 U.S.
609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Malone v. Bowdoin, 369 U.S. 643, 82
S.Ct. 980, 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

There is no general statutory jurisdiction over actions against federal officers,

employees and agencies. Dugan v. Rank, supra, held that notwithstanding lack
of express statutory consent, the doctrine of sovereign immunity does not apply
if (1) the actions of the officers are beyond their statutory authority; and (2)
although acting within the scope of their authority, the powers exercised or the
manner in which they are exercised are constitutionally void. Neither exception
applies here.

Appellants allege that the appellees have violated their statutory duties as
officers under 10 U.S.C. Sec. 172(a) and (b). This Act is known as the Military
Storage Act. It clearly constitutes a discretionary grant of the sovereign power.

9"Sec. 172. Ammunition storage board

10 The Secretaries of the military departments, acting through a joint board of
(a)
officers selected by them, shall keep informed on stored supplies of ammunition and
components thereof for use of the Army, Navy, Air Force, and Marine Corps, with
particular regard to keeping those supplies properly dispersed and stored and to
preventing hazardous conditions from arising to endanger life and property inside or
outside of storage reservations.
11 The board shall confer with and advise the Secretaries of the military
(b)
departments in carrying out the recommendations in House Document No. 199 of
the Seventieth Congress. Aug. 10, 1956, c. 1041, 70A Stat. 8."
12

Article I, Section 8, Clause 17 of the Constitution of the United States expressly

grants the Federal Government the right to acquire lands for the "Erection of
Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." In
addition to the statutory authority, discretionary in nature, to store chemical
warfare agents prescribed under 10 U.S.C. Sec. 172, supra, the Congress in

1969 enacted Public Law 91-121, 83 Stat. 209, Sec. 409, providing safeguards
relating to shipment of chemical agents to or from any military installation in
the United States.
13

Appellants rely primarily for jurisdiction upon 28 U.S.C. Sec. 1361, supra. This
statute was enacted in 1962. The Congress granted Federal District Courts
original jurisdiction over any action in the nature of mandamus to compel an
officer or employee of the United States to perform a duty owed to a plaintiff.
This court has interpreted that statute as not granting jurisdiction for the
purpose of injunctive or declaratory judgment relief. Prairie Band of
Pottawatomie Tribe of Indians v. Udall, 355 F.2d 364 (10th Cir.1966), cert.
denied 385 U.S. 831, 87 S.Ct. 70, 17 L.Ed.2d 67 (1966). This court has held
that the 1962 Act relating to mandamus against federal officers, employees and
agencies authorizes the court to issue mandamus only to require the exercise of
permissible discretion, or to compel performance of ministerial duties. Udall v.
Taunah, 398 F.2d 795 (10th Cir.1968); Prairie Band of Pottawatomie Tribe of
Indians v. Udall, supra; Smith v. United States, 333 F.2d 70 (10th Cir.1964). In
no event, however, may the court direct the manner in which discretionary acts
are to be performed nor may it direct or influence the exercise of discretion in
making that decision. In Larson v. Domestic & Foreign Corp., supra, 337 U.S.
at 695, 69 S.Ct. at 1464 the United States Supreme Court said:

14 is argued that an officer given the power to make decisions is only given the
"It
power to make correct decisions. If his decisions are not correct, then his action
based on those decisions is beyond his authority and not the action of the sovereign.
* * * we have heretofore rejected the argument that official action is invalid if based
on an incorrect decision as to law or fact, if the officer making the decision was
empowered to do so. Adams v. Nagle, 303 U.S. 532, 542, 58 S.Ct. 687, 82 L.Ed. 999
(1938). * * * We hold that if the actions of an officer do not conflict with the terms
of his valid statutory authority, then they are the actions of the sovereign * * * the
action itself cannot be enjoined or directed, since it is also the action of the
sovereign."
15

In Cotter Corporation v. Seaborg, 370 F.2d 686 (10th Cir.1966), this court
adopted the rule laid down in Larson v. Domestic & Foreign Corp., supra. That
rule was again upheld and applied in Pankey Land & Cattle Company v.
Hardin, 427 F.2d 43 (10th Cir.1970), where the Court noted that the appellants'
request would require affirmative action on the part of government officials and
affect public administration. See also State of New Mexico v. Backer, 199 F.2d
426 (10th Cir.1952); Smith v. United States Air Force, 280 F.Supp. 478
(E.D.Pa.1968); Indiana & Michigan Electric Co. v. Federal Power Com'n, 224
F.Supp. 166 (N.D.Ind.1963); McEachern v. United States, 212 F.Supp. 706

(W.D.S.C.1963), modified in 321 F.2d 31 (4th Cir.1963). And nothing in this

section constitutes an implied waiver of the sovereign immunity of the United
States. Smith v. United States, supra.
16

Injunctive relief is not authorized under the above Act. Injunction is a remedy
to restrain the doing of an injurious act, whereas mandamus commands the
performance of a particular duty. If a federal officer does or attempts to do acts
which are in excess of his authority or under authority not validly conferred,
equity has jurisdiction to restrain him. Colorado v. Toll, 268 U.S. 228, 45 S.Ct.
505, 69 L.Ed. 927 (1925); Harper v. Jones, 195 F.2d 705 (10th Cir.1952). In
order to sustain jurisdiction under the 1962 Act, it is necessary for the
appellants here to allege and plead that the appellees failed or refused to
perform a discretionary duty imposed by law. The only act directly controlling
here is the Military Storage Act, 10 U.S.C. Sec. 172, supra. The actions taken
by appellees are clearly within the ambits of that statute and are anchored
firmly to Art. I, Sec. 8, Clause 17 of the United States Constitution. The Dugan
v. Rank exceptions to the doctrine of sovereign immunity do not apply here.

17

During oral argument the appellants for the first time indicated that jurisdiction
may vest by virtue of the National Environmental Policy Act of 1969, Public
Law 91-190, 42 U.S.C. Secs. 4331-4347. This Act generally requires that every
federal agency must consider ecological factors when dealing with activities
which affect man's environment. We know of no decisions rendered nor do
appellants cite us to any which recognize standing to invoke jurisdiction under
this Act challenging a military or defense facility as hazardous to human health
and safety "created by environmental pollution". 42 U.S.C. Sec. 4393. We
observe that the functions vested by law in specific departments or agencies
transferred to the Environmental Protection Agency, do not include functions
involving the Department of Defense or the Secretary of the Army. See
Reorganization Plan No. 3 of 1970 (Dec. 2, 1970), 35 F.R. 15623. We do not
intend to imply that the federal officers and agencies charged with the
administration and operation of arsenals are exempt from the Act. The statute
requires that all agencies of the federal government shall report in detail and
consult with the Council on Environmental Quality. 42 U.S.C. Sec. 4332. The
Act requires such agency disclosure as will alert the President, the Council, the
public, and the Congress to all possible environmental consequences of
proposed agency action. Thus, in National Helium Corporation v. Morton, No.
71-1369 (Oct. 4, 1971) this court upheld a restraining order prohibiting the
Secretary of the Interior from terminating a contract for purchase of helium in
light of the Secretary's failure to observe the statutory requirements of NEPA
that environmental consequences of contemplated action be detailed. 42 U.S.C.
Sec. 4332. Under the Helium Act, one of the justifications for government

purchase of helium is conservation of this natural resource. It was

uncontradicted that the contract termination in that case would result in helium
being vented into the atmosphere when the natural gas was consumed as fuel.
That case did not involve disclosures relating to a military-defense
establishment or national security.
18

Public disclosure relating to military-defense facilities creates serious problems

involving national security. We hold that NEPA does not create substantive
rights in the plaintiffs-appellants here to raise the environmental challenge in
regard to the Rocky Mountain Arsenal. In its proprietary military capacity, the
Federal Government has traditionally exercised unfettered control with respect
to internal management and operation of federal military establishments.
Cafeteria and Restaurant Workers Union, Local 473, A.F.L.C.I.O. v. McElroy,
367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Perkins v. Lukens Steel
Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). Upon cession by a state
to the national government of jurisdiction over property to be used for military
purposes, the Congress has exclusive jurisdiction to legislate in respect thereto.
Howard v. Commissioners, 344 U.S. 624, 73 S.Ct. 465, 97 L.Ed. 617 (1953);
Benson v. United States, 146 U.S. 325, 13 S.Ct. 60, 36 L.Ed. 991 (1892);
Murphy v. Love, 249 F.2d 783 (10th Cir.1957), cert. denied 355 U.S. 958, 78
S.Ct. 544, 2 L.Ed.2d 533 (1958). The challenges raised by the appellants in this
case fall within that narrow band of matters wholly committed to official
discretion which, in recognition of the needs involved in national security, do
not blend with tests in an evidentiary hearing.

19

We affirm.