Opinion

JUSTICE O'CONNOR, with whom JUSTICE REHNQUIST joins, concurring in part and dissenting in part.

I agree with the Court that gubernatorial consent is required for the acquisition of wetlands easements, that the required consent was given in this case, and that North Dakota may not simply revoke its consent at will. I disagree with the Court, however, in its holding that the United States acquired its easements pursuant to the consents within a reasonable time as a matter of law. I would remand this case in order to allow the lower courts an opportunity to determine whether the Federal Government delayed unreasonably in making its acquisitions. Because I would remand, and because I believe that the Court decides another issue that is not properly before the Court, I dissent in part.

First, in its brief, the Government concedes that

Congress must have assumed that the Secretary would be able to rely on the continued effectiveness - at least for a reasonable period of time -of gubernatorial consents.

Brief for United States 26 (emphasis added). [ Footnote 2/1 ] The Government's concession on this point reflects the position, correct in my view, that Congress did not intend that gubernatorial consents, once given, could never be withdrawn even if the United States failed to acquire its easements within a reasonable time. Although there is virtually no legislative history concerning the consent provision in 16 U.S.C. 715k-5, the provision represents an attempt to give to the States a meaningful right to control to some extent federal acquisition of easements in light of the unquestioned federal authority to take the land through condemnation procedures. [ Footnote 2/2 ] See Paul v. United States, 371 U. S. 245, 371 U. S. 264 (1963). Congress surely did not intend to bind the States forever by their consents if the Federal Government failed to act on them. Permanent irrevocable consents would frustrate legitimate state land use planning, just as consents revocable at will would frustrate federal protection of migratory wildfowl. Therefore, I agree with the position taken by the United States that the State's consent is irrevocable for a reasonable time after the consent is given.

The Court finds it unnecessary to decide whether the consent is revocable after the lapse of a reasonable time because it concludes that a reasonable time has not elapsed in this case. The Court bases this factual judgment primarily on statements in the legislative history indicating that Congress anticipated that the wetlands "acquisition program would take a minimum of 20 to 25 years to complete." Ante at 460 U. S. 315 (footnote omitted). Although the Court correctly points out that such statements appear in the House Report and various hearings concerning the 1958 amendment to the Stamp Act, those statements cannot be used to show that, in adding the gubernatorial consent provision in 1961, Congress intended consent to be irrevocable for the period necessary to complete all previously described acquisition objectives regardless of its duration. The Court merely assumes that the estimated time period for completing the acquisition program generally is a "reasonable time" for purposes of determining whether the Government has acted reasonably in exercising its consents in this particular case. There is nothing in the legislative history of either the 1958 amendment to the Stamp Act, or the 1961 addition of the consent provision, to support the Court's conclusion on this point.

The Court acknowledges that the acquisition program involved in this case had been underway for 16 years by the time the Government ceased its acquisitions as a result of the state legislation that is in issue. This time period is not, in my view, "reasonable" as a matter of law, and I would remand the issue in order to give the courts below an opportunity to decide whether the Federal Government acted reasonably in this case.

Second, for the first time in this Court, North Dakota argues that even if it may not revoke its consent to easement acquisition, the United States has already acquired easements over acreage in excess of the consents that were given. The Court resolves this dispute by holding that North Dakota's argument fails because

the easement agreements make clear... [that] the restrictions apply only to wetlands areas, not to the entire parcels.... The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired.

Ante at 460 U. S. 311 -312, n. 14.

This issue clearly was not raised below. In its complaint filed in the District Court for North Dakota, the United States stated that its total easement acreage to date in North Dakota was 764,522 acres. App. 31. This claim was repeated in answers to North Dakota's interrogatories. Id. at 49. North Dakota never challenged that claim, and stipulated that the District Court had been provided with all evidentiary material necessary to resolve the cross-motions for summary judgment concerning the necessity for, and revocability of, gubernatorial consent. Id. at 71-73. Indeed, North Dakota stipulated that its position was that the consent had been revoked, and that the particular gubernatorial consents were themselves legally inadequate for easement acquisition. Id. at 71-72. Therefore, the issue concerning exhaustion of consent was not raised below, and is not properly before the Court in this case.

Because I would remand to enable the lower courts to determine whether the United States acted reasonably in obtaining its wetlands easements, and because the Court decides an issue that is not, in my view, properly before the Court, I am unable to join the Court's opinion in its entirety.

Notes

[ Footnote 2/1 ]

See also Brief for United States 14, 27; Tr. of Oral Arg. 35, 41.

[ Footnote 2/2 ]

The only explicit reference to the consent provision is made by Senator Magnuson, who stated that there could be no acquisition "unless the Federal Government and the State involved had a complete agreement... as to the nature of the lands and the acreage involved." 107 Cong.Rec. 17171 (1961).