Ruby Company, Plaintiff-petitioner, v. Walter J. Hickel, Secretary of the Department of the Interior, et al., Defendant-respondents, 434 F.2d 244 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 434 F.2d 244 (9th Cir. 1970) November 9, 1970

J. Blaine Anderson (argued), H. William Furchner, Blackfoot, Idaho, for Ruby Co.

Jay F. Bates (argued), U. S. Asst. Atty., Sherman F. Furey, U. S. Atty., Boise, Idaho; Shiro Kashiwa, Asst. Atty. Gen., Washington, D. C., for Walter J. Hickel.

Marcus, Leggat & Marcus, Boise, Idaho, for Intermountain Gas Co.

Eberle & Berlin, Boise, Idaho, for A. T. & T. of Wyoming.

E. C. Phoenix, Pocatello, Idaho, for Union Pacific.

Dwain H. Stufflebeam, Blackfoot, Idaho, for Custom Body Works.

Earl W. Cory, Blackfoot, Idaho, for Trego Ditch Company.

Faber Tway, Boise, Idaho, for State of Idaho.

Stephen & Balleisen, Twin Falls, Idaho, for Penick & Ford, Ltd.

James E. Bruce, Boise, Idaho, for Idaho Power Co.

Before HAMLEY and WRIGHT, Circuit Judges, and BURKE, District Judge.* 


Order of this court pursuant to 28 U.S.C. §§ 2282-2283 allowed an interlocutory appeal from a District Court order denying motions in two consolidated actions to convene a three judge court to consider appellants' right to injunctive relief against government officials acting under the provisions of the Snake River Omitted Lands Act, 76 Stat. 89 (May 31, 1962). The order was made upon the assumption that appellants had raised a substantial constitutional question by way of attack upon the statute involved in the litigation. Counsel for appellants conceded during argument that the appellants' action did not question the constitutionality of the Snake River Omitted Lands Act but rather its application to certain real property which had been subject to a re-survey in 1957 which is allegedly in conflict with a government survey accomplished in 1877.

We are of the opinion that the District Court properly denied motions for a three judge court. Application of the statute in question will be dependent upon resolution of issues of fact now in dispute. When they are resolved by trial the legal propriety of decisions made by governmental officials will be determined by the District Court. If the decision of the trial court should be adverse to appellants the matter can reach this court in the usual manner. At this point in time the requirements for a three judge court do not exist and the order of the District Court is affirmed.


Hon. LLOYD H. BURKE, United States District Judge for the Northern District of California, sitting by designation