Stephen E. Hosford, of Martin, Lutz, Roggow, Hosford & Eubanks, P.C., Las Cruces, New Mexico, for the appellants.
Tamara N. Rountree, Assistant United States Attorney (Norman C. Bay, United States Attorney, and John W. Zavitz, Assistant United States Attorney, on the brief), Albuquerque, New Mexico, for the appellees.
Plaintiffs Rosette Incorporated, et al. (Rosette), appeal from the district court's grant of summary judgment in favor of the United States as to the ownership of geothermal resources on property obtained pursuant to patents issued under the Stock-Raising Homestead Act of 1916 (SRHA), 43 U.S.C. § 291 et seq.; 42 Stat. 1445 (repealed 1976); 39 Stat. 862-64, 65 (repealed 1976). We affirm, agreeing with the district court that the geothermal resources at issue in this case are "minerals" within the reservation of the patents.
lands the surface of which is, in [the Secretary of the Interior's] opinion, chiefly valuable for grazing and raising forage crops, do not contain merchantable timber, are not susceptible of irrigation from any known source of water supply, and are of such character that six hundred and forty acres are reasonably required for the support of a family.
Under the SRHA, a homesteader could obtain a patent on the land if he resided for three years thereon and made permanent improvements tending to increase the value of the land for stockraising purposes. 43 U.S.C. § 293. However, the SRHA required that the patent issued be "subject to and contain a reservation to the United States of all the coal and other minerals in the lands so entered and patented, together with the right to prospect for, mine, and remove the same." 43 U.S.C. § 299. Rosette's patents contained a reservation of mineral rights by the United States consistent with 43 U.S.C. § 299.
Several wells were drilled in Section 7 in the 1940s and 1950s, one of which encountered water as hot as 240 degrees Fahrenheit. In 1970, Congress enacted the Geothermal Steam Act (hereinafter Steam Act), which granted the Secretary of the Interior the authority to lease geothermal resources, including steam, hot water and hot brines, heat from geothermal foundations and byproducts of geothermal foundations, owned or reserved by the United States. 30 U.S.C. § 1001 et seq. The Secretary of the Interior leased the geothermal rights to Section 7 to Amax Exploration, Inc., and later to Lightning Dock Geothermal, Inc. Rosette is a designated operator under the lease through agreements with the various leaseholders, and pays royalties. The lease agreement does not permit Rosette to drill deeper than 1,000 feet without prior written consent.
Rosette is in the business of growing roses in greenhouses for commercial distribution. The roses are planted in the ground. Rosette uses the heat in water from five wells located in Section 7 to heat its greenhouses, after which the water is discharged. No heat is transported off of the surface estate or used to generate other energy. Rosette uses water from wells outside Section 7 for irrigation purposes.
In 1993 Rosette filed an action for quiet title, ejectment, declaratory judgment and permanent injunction against the United States, arguing that geothermal resources are not reserved minerals under the SRHA. The United States filed a counterclaim for past-due royalties and seeking to enjoin Rosette. The district court dismissed Rosette's claims as barred by the statute of limitations, and this court affirmed. Rosette, Inc. v. United States, 141 F.3d 1394 (10th Cir. 1998).
Rosette reopened and installed a pump on a capped well, Well 55-7, located in Section 7, intending to use water from that well for the heating of the greenhouse. The depth of Well 55-7 exceeded 1,000 feet. Rosette did not seek permission from the geothermal leaseholder or the United States to utilize the well. As a result of Rosette's actions in reopening Well 55-7, the United States filed its second amended counterclaim to enjoin Rosette from using geothermal resources on its lease located deeper than 1,000 feet. Rosette's answer asked the district court to quiet title as to the geothermal resources against the United States.
The district court heard the second amended counterclaim on cross-motions for summary judgment after the parties had stipulated to numerous facts. The court analyzed the purpose of the SRHA and concluded that, although the SRHA passed in 1916 made no mention of geothermal resources, the definition of minerals as used in the SRHA was broad enough to encompass geothermal resources. The district court therefore found that title to the geothermal resources in Section 7 was vested in the United States as a matter of law, and issued a preliminary and permanent injunction prohibiting Rosette from utilizing the geothermal resources located deeper than 1,000 feet without authorization from the United States and the lessee. The court further ordered Rosette to remove its pump and recap Well 55-7. The parties stipulated as to damages.
Rosette argues that the district court erred in finding that the United States has title to the geothermal resources under Section 7. Rosette's argument essentially advances three points: 1) Geothermal resources as a whole are not "minerals" under the SRHA; 2) even if geothermal resources as a whole may be "minerals" under the SRHA, the particular geothermal resources under Section 7 do not constitute "minerals" under the SRHA; and 3) even if the geothermal resources under Section 7 are "minerals" under the SRHA, Rosette still has the right to use the resources as surfaceholder to advance the purposes of Rosette's homestead.
This case was decided on summary judgment. This court reviews the district court's grant of summary judgment de novo, applying the same legal standard used by the district court. Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and the admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Simms v. Oklahoma ex rel. Dep't of Mental Health, 165 F.3d 1321, 1326 (10th Cir. 1999). The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the nonmoving party. See id.
The determination of whether geothermal resources are minerals under the SRHA requires interpretation of that Act. The construction and applicability of a federal statute is a question of law, which we review de novo. United States v. Telluride Co., 146 F.3d 1241, 1244 (10th Cir. 1998).
The United States Supreme Court examined the scope of the mineral reservation in the SRHA in Watt v. Western Nuclear, Inc., 462 U.S. 36 (1983). The question at issue in that case was whether gravel extracted from the ground of a patented site was a "mineral" and thus the property of the United States. The Court reasoned that, for a substance to be a mineral reserved under the SRHA, it must not only be a mineral within one or more familiar definitions of that term, but also the type of mineral that Congress intended to reserve to the United States in lands patented under the SRHA. Id. at 44. The Court stated that Congress' underlying purpose in severing the surface estate of lands patented from the mineral estate was to facilitate the concurrent development of both surface and subsurface resources, and that while Congress expected homesteaders to use the surface of land for stockraising and raising crops, it sought to ensure that valuable subsurface resources would remain subject to development by other developers who would be more likely to make use of the resources. Id. at 47.
Given the underlying purpose of the SRHA, the Court stated that "the determination of whether a particular substance is included in the surface estate or the mineral estate should be made in light of the use of the surface estate that Congress contemplated," that is, stockraising and the raising of forage crops. Id. at 52. The Court concluded that in order to qualify as a "mineral" under the reservation of the SRHA a substance must be 1) mineral in character, i.e. inorganic, 2) removable from the soil, 3) usable for commercial purposes, 4) and of such a character that there was no reason to suppose Congress intended it to be included in the surface estate. Id. at 53. The Court determined that gravel came under this definition. Id. at 55. The Court buttressed this determination by noting that the Department of the Interior had treated gravel as a reserved mineral under other land-grant statutes, and that federal administrative and judicial decisions had consistently treated gravel as subject to general mining laws unless specifically exempted. Finally, the Court recited the established rule that land grants are construed favorably to the Government, and nothing passes except what is conveyed in clear language, with any doubts resolved in favor of the Government. Id. at 59-60.
We have found no decisions since Western Nuclear addressing the question of whether geothermal resources are minerals under the SRHA. The issue was squarely addressed in an earlier case decided by the Ninth Circuit. See United States v. Union Oil Co. of California, 549 F.2d 1271 (9th Cir. 1977). In Union Oil, the court applied an analysis substantially similar to that used in Western Nuclear. The court first determined that geothermal resources are actually the result of a process in which magma heats water contained in porous rock strata, and that, at a general level, all of the elements involved in the process, including water itself, could properly be classified as minerals. The court stated that the pertinent question was whether such classification fit Congress' purposes in enacting the SRHA. Id. at 1273-74.
The court in Union Oil examined in detail the legislative history surrounding the passage of the SRHA. The court noted that, prior to 1909, public lands were disposed of as either wholly mineral or nonmineral in character, which led to inefficiencies and fraud. The SRHA represented a new class of legislation that separated the right to mine from title to the soil in order to encourage efficiency of use. As did the Court in Western Nuclear, the court in Union Oil referenced the idea of the legislators that the farmer-stockman who would homestead the land would not be interested in looking for minerals. The court also pointed out that Congress defended the large size of each homestead patent by stating that the grant was limited to the surface estate and that the reservation would "'cover every kind of mineral.'" Id. at 1278 (quoting comments of Congressman Ferris, 53 Cong. Rec. 1171 ). The court noted that the mineral reservation in the SRHA actually was criticized for its until-then unprecedented breadth. The court concluded that the mineral reservation in the SRHA should be read broadly in light of the agricultural purpose of the patent grant itself and the clear purpose of Congress to retain ownership of subsurface resources, particularly those that could be used as sources of energy. As a result, the court held that geothermal resources were titled in the federal government, and reversed the district court's determination to the contrary. Id. at 1280-81.
Although Union Oil predated the decision in Western Nuclear, and thus did not expressly follow the guidelines set forth by the Supreme Court, the analysis employed in both cases is similar. Both courts began by determining whether the resource in question could be classified as a mineral under some definition of that word, and then attempted to determine whether such an interpretation would advance the purpose of the statute, given its legislative history.
The first step in the Western Nuclear analysis is to determine whether geothermal resources in general are minerals in character, that is, inorganic. Western Nuclear, 462 U.S. at 53. Rosette argues the substance in question is the heat from the water, and that heat itself cannot properly be classified as inorganic. Rather, according to Rosette, heat is properly found in plants and animals and is one of the properties, in addition to light and air, which is appurtenant to the property. However, as recognized in Union Oil, geothermal resources are not isolated substances and are dependent upon heat from magma being transmitted to water contained in porous rock strata. 549 F.2d at 1273. There is no question that both magma and rock are inorganic in character.
Rosette contends that water cannot be a "mineral," citing Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978). In Andrus, the Court held that water was not a "valuable mineral deposit" within the scope of the federal mining statute. However, Andrus is not applicable here. The Court in Andrus held simply that water could not be categorized as a "locatable mineral" within the legislative intent of the mining act. The Court reasoned that water was so common as to lead to abuses under the mining act, which allowed persons to gain title to valuable federal land by discovering a locatable mineral on the land. However, while the Court in Andrus held that water is not a locatable mineral under the mining act, it concluded that water could in fact be a mineral in the broadest sense of the word. See id. at 610. In Union Oil, the court determined that water could be classified as a mineral. The court pointed to a wide variety of sources, including mining treatises and texts on mineralogy in making this determination. See 549 F.2d at 1273, n.5.
We conclude that the geothermal process as a whole is inorganic within the definition set forth in Western Nuclear, and thus may be classified as generally mineral in character.
The parties do not dispute that geothermal resources as a whole are removable from the soil and usable for commercial purposes. Therefore, these two parts of the Western Nuclear test are satisfied.
The final requirement is whether "there is no reason to suppose" that Congress intended geothermal resources to be included within the surface estate. Western Nuclear, 462 U.S. at 53. Analysis of this requirement entails an examination of the purposes for which Congress intended the land to be used by the various holders of the rights. See id. at 52-60.
It is fairly certain that, at the time of the passage of the SRHA, Congress did not specifically intend that geothermal resources as such be retained by the federal government. See Union Oil, 549 F.2d at 1273 (noting that although steam had been used to generate electricity in Italy as early as 1904, no geothermal power plants went into production in the United States until 1960). However, the question is not what Congress intended to reserve, but rather what Congress intended to give away in its grant to the landholder in the SRHA. The established rule is that land grants are construed favorably to the government and nothing passes except that which is conveyed in clear language, resolving all doubts in favor of the government. Western Nuclear, 462 U.S. at 59.
As noted by the courts in Western Nuclear and Union Oil, the purpose of the SRHA was to open up lands suitable for development for ranching and the planting of forage crops, with the understanding that the farmer-stockman who would be a tenant would be unlikely to want to develop the underlying resources. Western Nuclear, 462 U.S. at 53-56; Union Oil, 549 F.2d at 1276-79. The question, then, is whether the farmer-stockman contemplated by Congress to be a patent holder would want to develop geothermal resources.
Rosette contends that geothermal resources are, in their essence, hot water, and that the water is useful in the farming and ranching context. In Union Oil, the appellees argued that references in the Congressional Record to homesteaders drilling wells indicated that Congress intended title to underground water to pass with the surface estate under the SRHA. The court rejected the argument, stating that references in the Congressional Record were not speaking to the commercial development of geothermal wells, but rather the development of fresh water for use by livestock. 549 F.2d at 1279.
It is highly unlikely that Congress intended that homesteaders taking patent to the surface area develop geothermal resources. Certainly, it would be difficult for such homesteaders to utilize geothermal steam or even hot water for use in the production of forage crops and the raising of livestock.
Rosette also argues that the Department of Interior's position prior to the passage of the Steam Act in 1970 was that geothermal steam, as simply water at a high temperature, was not subject to the mineral reservation of the SRHA. In support of this contention, Rosette cites a memo from the Department of Interior in 1965 which includes two opinions from its solicitor's office that the mineral reservation clause does not include geothermal energy because it is essentially heated water, and water has generally not been treated as a mineral in other acts. Rosette argues it therefore must be inferred that Congress did not intend to reserve geothermal energy.
This same issue was also raised, using the same sources of support, in Union Oil. See 549 F.2d at 1279-80. Although the Union Oil court recognized the holding in Udall v. Tallman, 380 U.S. 1, 16 (1965), and other cases, that great deference should be given to the construction of a statute by the officers or agency charged with its administration, it determined that deference to the opinions in question was not warranted. See 549 F.2d at 1279-80. The court stated that the views of the Department of the Interior did not reflect a contemporaneous construction by administrators who participated in the drafting of the statute, nor had Congress approved the interpretation. The court noted that instead, Congress, in its discussion regarding the Steam Act, had expressly disapproved of the Department's opinion as the conclusive determination of the question. Id. at 1280 (citing H.R. Rep. No. 91-1544, 91st Cong., 2d Sess., reprinted at 1970 U.S. Code Cong. & Admin. News 5113, 5119). Ultimately, the court stated the main deficiency in the documents by the Department of the Interior was there was no attempt to actually examine the intent of Congress, which was the sole question in interpreting the statute. Id. at 1280, n. 19.
While it is true that great deference is given to the interpretation of a statute by the agency charged with its administration, this respect is particularly due where the administrative practice is a contemporaneous construction of the statute, which is not the case here. See Udall, 380 U.S. at 16. The two Department of Interior opinions which form the basis for Rosette's assertion were written in 1965 and the SRHA was passed in 1916. Also, much as the opinions are predated by the SRHA, they themselves predate the opinion in Western Nuclear and the test established therein. Neither opinion purports to consider what Congress might have intended in passing the SRHA, instead noting that water is generally not treated as a mineral in land-use laws, and from that general treatment extrapolating that geothermal resources are not reserved under the SRHA. An analysis of the two Department of Interior opinions does not reveal any in-depth consideration of the type of factors used in Western Nuclear. In fact, one opinion expressly notes that water, particularly subterranean water, is normally classified as a mineral. Further, rather than being recognized by Congress, the view of the Department of Interior was expressly rejected as authoritative by the Congressional Committee on Interior and Insular Affairs in its deliberations regarding the Steam Act. See 1970 U.S. Code Cong. and Adm. News at 5119 (stating that "the opinion of the Department is not a conclusive determination of the legal question"). As a result, we agree with the court in Union Oil that the Department of Interior's pre-Steam Act interpretation is entitled to little deference in interpreting the mineral reservation in the SRHA.
Based on the application of the Western Nuclear test, we conclude that geothermal resources in general are in fact "minerals" under the SRHA. The components of the process, including magma, rock, and water, are minerals in the general sense that they are inorganic. The product of the process, whether steam or hot water, may be extracted from the soil and is usable for commercial purposes. Further, there is no reason to suppose that Congress intended that the geothermal resources be included in the surfaceholder's patent given the stated purpose of the patent to promote the raising of livestock and forage crops. The next question is whether the geothermal resources in the case at hand are so unusual as to take them outside this definition.
Rosette argues even if geothermal resources in a general sense are "minerals" under the SRHA, the particular geothermal resources used by Rosette do not fall under this definition. Rosette argues that, in the Steam Act, Congress recognized that not all geothermal resources were reserved to the federal government under the SRHA, that the particular nature of the hot water used by Rosette takes it outside the definition of a mineral under the SRHA because it was essentially potable water that could be used for stockraising and the planting of forage crops, and further that the water is not hot enough for commercial use.
Geothermal resources in lands the surface of which has passed from Federal ownership but in which the minerals have been reserved to the United States shall not be developed or produced except under geothermal leases made pursuant to this chapter. If the Secretary of the Interior finds that such development is imminent, or that production from a well heretofore drilled on such lands is imminent, he shall so report to the Attorney General, and the Attorney General is authorized and directed to institute an appropriate proceeding in the United States district court of the district in which such lands are located, to quiet the title of the United States in such resources, and if the court determines that the reservation of mineral to the United States in the lands involved included the geothermal resources, to enjoin their production otherwise than under the terms of this chapter: Provided, That upon an authoritative judicial determination that Federal mineral reservation does not include geothermal steam and associated geothermal resources, the duties of the Secretary of the Interior to report and of the Attorney General to institute proceedings, as hereinbefore set forth, shall cease.
The Committee is aware that the Department of the Interior has expressed the view that geothermal steam is not subject to the mineral reservation of the Stockraising Homestead Act of December 29, . The Committee is also aware that a contrary view has been expressed. As the opinion of the Department is not a conclusive determination of the legal question, it was the sense of the Committee that an early judicial determination of this question (upon which the Committee takes no position) is necessary. At issue is the ownership of geothermal steam on more than 35 million acres of land, the surface of which has passed from Federal ownership but with a reservation of minerals to the United States. The bulk of this acreage was patented under the provisions of the Stockraising Homestead Act, and the reserved minerals therein are subject to disposition under appropriate mineral laws. It is not the intent of the Committee that this direction to initiate a proceeding in a U.S. District Court shall constitute a continuing obligation upon the Attorney General but merely that an authoritative judicial determination be obtained that the mineral reservation of the Stockraising Homestead Act, and similar acts, does or does not reserve to the United States the geothermal steam. The development of geothermal resources in these lands will be retarded until the question of ownership is determined.
1970 U.S. Code Cong. and Adm. News at 5119 (emphasis added). Thus, contrary to Rosette's assertion, § 1020(b) does not call for a judicial determination each time the federal government believes a well might be reserved, but rather calls for "an early judicial determination" on the question of whether geothermal rights are or are not included in the mineral reservation of the SRHA and other acts. It is not support for the contention that Congress recognized some geothermal wells may not fit within the reservation clause. Instead, it is support for the opposite proposition.
Rosette argues the geothermal resources in question in this case are not salt water and geothermal steam, as was the case in Union Oil, but rather potable heated water containing less that 1,400 milligrams per liter of solids. According to the stipulated facts, beneficial use of the groundwater in Section 7 has been made for irrigation of field crops, stock watering, and various domestic uses, including drinking water. Rosette contends this is strong evidence that the geothermal rights should remain with it as the surfaceholder, as the water would be useful for the stockraising and forage crop producing activities contemplated in the SRHA. However, the geothermal resources in question in this case are from Well 55-7, which was an exploratory well drilled deeper than 1,000 feet. The temperature of the water from the well was at 232.9 degrees Fahrenheit. The well was drilled in the 1980s and was never used as a source for irrigation. It is unlikely Congress, in passing the SRHA, contemplated that the surfaceholder would have the inclination and the expertise to develop geothermal resources at that temperature for the purpose of irrigation of forage crops and watering of stock. Although Rosette argues it could use the water for irrigation, its roses are irrigated from wells in an adjacent section.
There simply is no reason to suppose that Congress intended a geothermal well such as the one at issue be included within its grant of land to homesteaders under the SRHA. Given the characteristics of the well, Rosette's argument that the geothermal resources are included within its surfaceholder rights is not persuasive.
Rosette's next argument is that the temperature of the well is not sufficient to feasibly produce electrical energy. Rosette argues the temperature of the water renders it useless under the Steam Act, and further prevents it from being removable from the soil for purposes of the definition of a mineral under the SRHA. Both parties acknowledge the question of whether the temperature in Well 55-7 is hot enough for commercial generation of electricity is a disputed question of fact, which, if material, would require a remand. The district court found that the question was not material, and we agree.
The starting point of the analysis is the undisputed fact that geothermal energy must be exploited, if it is to be exploited at all, on the lands from which it is to be removed. It is the geothermal steam heat and pressure that are used to produce energy. Of course, when steam is allowed to escape or is transported long distances, it loses its heat and pressure. If the steam cannot be used at the source, but rather must be conducted through pipes to distant electrical generating facilities, thereby exposing it to friction and heat loss, it loses its practical utility as a source of electrical energy. . . For this reason, the 'removal' of geothermal resources is inextricably connected to their 'utilization.' Indeed because these resources cannot be 'removed' without first being 'utilized' (to the extent of being converted into electrical energy), the two processes can, in the case of geothermal energy, be said to be one.
Id. at 874-75. The court in Occidental noted, however, that the owner of the mineral rights could not rely on the removal and utilization language to construct a chemical plant or greenhouse powered by the geothermal resource without obtaining the consent of the surface owner.
Rosette seeks to enlarge the language in Occidental beyond its context. Rosette argues that, 1) since removal and utilization are one process in connection with geothermal resources, then 2) geothermal resources must be converted to electricity in order to be utilized and removed; and if 3) the geothermal resources cannot be feasibly converted into electricity, then 4) they cannot be removed, and 5) therefore they are not minerals under the SRHA.
It is true that, in most cases, in order to be utilized for the production of electricity, the geothermal resource must be removed and utilized on-site. This does not mean, conversely, that the geothermal resource must be used in the production of electricity in order to be removed and utilized. Even if the temperature of the geothermal resources in question does not allow them feasibly to be converted into electricity, this does not prevent them from being removed from the soil and utilized for commercial purposes. They may, for example, be removed by the mineral holder and sold to the surfaceholder for the heating of greenhouses or other surface structures on the property. The mineral rights may also be leased by the federal government directly to the surfaceholder for such purposes. In either case, the minerals are being removed from the soil and used for commercial purposes. Nor is the production of electricity the only purpose for which the geothermal resources can be used under the Steam Act. Although the Steam Act is generally geared toward the production of energy, it also encompasses other commercial uses for geothermal power, including the production of commercially important mineral by-products and the development of new fresh water supplies. See 1970 U.S. Code Cong. & Adm. News at 5113.
Whether or not the temperature of the geothermal resources in Well 55-7 is high enough to allow it to be used to generate electricity is immaterial to its status as a mineral under the SRHA.
Rosette's final argument is that, even if the geothermal resources under Section 7 are minerals under the SRHA, Rosette still has the right to use the resources as surfaceholder to advance the purposes of the homestead. Rosette contends it has a permit to utilize the water rights in the section to develop the homestead, and that use could not be infringed by the federal government.
It is undisputed that Rosette has the right to beneficial use of 450 acre feet of water per annum issued by the New Mexico State Engineers Office. It is further undisputed that these rights predate the passage of the Steam Act. However, the rights do not predate the SRHA, and therefore, Rosette's rights to the use of the water are governed by its rights under its patents and the reservation of mineral rights by the federal government.
The Court drew an analogy between such a situation and that in Shiver v. United States, 159 U.S. 491 (1895), which concerned the right of a person under a homestead act to cut timber on federal lands. The Court held that, notwithstanding the fact that it was a crime to cut timber on lands held by the United States, the homesteading statute would be ineffective if the homesteader did not have the right to build a house, outbuildings, and fences, and to clear the land for cultivation. Although the Court in Western Nuclear found the rights of the homesteader to use reserved resources to be an interesting issue, it did not address it because the landowner in that case was selling gravel for commercial purposes not in any way related to farming or ranching.
Even if Western Nuclear can be read to establish such a right to use reserved minerals in connection with the homestead, this right would not encompass Rosette's activity. The purpose of the SRHA was to encourage settlement of the land for use in stockraising and the raising of forage crops. See Western Nuclear, 462 U.S. at 53. Webster's Third New International Dictionary defines forage as "vegetable food (as hay, grain) for domestic animals." Webster's Third New International Dictionary 886 (1993). Other definitions are similar. See, e.g. 40 C.F.R. Pt. 158, App. A (1999) (listing forage crops as typical annual and perennial grasses, corn, sorghum, small grains for forage and perennial legumes). These definitions would not encompass the commercial raising of roses.
Any right that can be inferred from the footnote in Western Nuclear and the opinion in Shiver would extend only to the use of resources essential for stockraising and the raising of crops. See Western Nuclear, 462 U.S. at 54, n. 14. Thus, while Rosette might be able to use the heated water from geothermal resources under its property for use in watering livestock or irrigating forage crops and remain within the patent, the commercial activity of heating greenhouses to produce roses for sale falls outside the patent. Therefore, Rosette, by virtue of being the surfaceholder, does not acquire the right to use the geothermal resources in Well 55-7 for use in providing heat for its commercial greenhouse operation. The right to the resources remains in the federal government.
*. The Honorable Louis F. Oberdorfer, Senior United States District Judge, District of Columbia, sitting by designation.


"matters that are . . . specifically exempted from disclosure by statute . . . provided that such statute . . . refers to particular types of matters to be withheld"
"the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure."
of exempt "intelligence sources." The Court of Appeals held that it was error automatically to exempt from disclosure those researchers to whom confidentiality had been promised, and that an individual qualifies as an "intelligence source" exempt from disclosure under the FOIA only when the CIA offers sufficient proof that it needs to protect its efforts in confidentiality in order to obtain the type of information provided by the researcher.
1. Section 102(d)(3) qualifies as a withholding statute under Exemption 3. Section 102(d)(3) clearly refers to "particular types of matters" within the meaning of Exemption 3. Moreover, the FOIA's legislative history confirms that Congress intended § 102(d)(3) to be a withholding statute under that Exemption. And the plain meaning of § 102(d)(3)'s language, as well as the National Security Act's legislative history, indicates that Congress vested in the Director of Central Intelligence broad authority to protect all sources of intelligence information from disclosure. To narrow this authority by limiting the definition of "intelligence sources" to sources to which the CIA had to guarantee confidentiality in order to obtain the information not only contravenes Congress' express intention but also overlooks the practical necessities of modern intelligence gathering. Pp. 471 U. S. 166-173.
2. MKULTRA researchers are protected "intelligence sources" within § 102(d)(3)'s broad meaning, because they provided, or were engaged to provide, information that the CIA needed to fulfill its statutory obligations with respect to foreign intelligence. To force the CIA to disclose a source whenever a court determines, after the fact, that the CIA could have obtained the kind of information supplied without promising confidentiality, could have a devastating impact on the CIA's ability to carry out its statutory mission. The record establishes that the MKULTRA researchers did in fact provide the CIA with information related to its intelligence function, and therefore the Director was authorized to withhold these researchers' identities from disclosure under the FOIA. Pp. 471 U. S. 173-177.
3. The FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers. This conclusion is supported by the record. The Director reasonably concluded that an observer who is knowledgeable about a particular intelligence research project, such as MKULTRA, could, upon learning that the research was performed at a certain institution, deduce the identities of the protected individual researchers. Pp. 471 U. S. 177-181.
228 U.S.App.D.C. 269, 709 F.2d 95, affirmed in part and reversed in part.
BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. MARSHALL, J., filed an opinion concurring in the result, in which BRENNAN, J., joined, post, p. 471 U. S. 181.
In No. 83-1075, we granted certiorari to decide whether § 102(d)(3) of the National Security Act of 1947, as incorporated in Exemption 3 of the Freedom of Information Act, exempts from disclosure only those sources of intelligence information to which the Central Intelligence Agency had to guarantee confidentiality in order to obtain the information. In No. 83-1249, the cross-petition, we granted certiorari to decide whether the Freedom of Information Act requires the Agency to disclose the institutional affiliations of persons whose identities are exempt from disclosure as "intelligence sources."
"the research and development of chemical, biological, and radiological materials capable of employment in clandestine operations to control human behavior. [Footnote 1]"
program consisted of some 149 subprojects which the Agency contracted out to various universities, research foundations, and similar institutions. At least 80 institutions and 185 private researchers participated. Because the Agency funded MKULTRA indirectly, many of the participating individuals were unaware that they were dealing with the Agency.
types of matters to be withheld."
Dissatisfied with the Agency's limited disclosure, respondents filed suit under the FOIA, 5 U.S.C. § 552(a)(4)(B), in the United States District Court for the District of Columbia. That court ordered disclosure of the withheld names, holding that the MKULTRA researchers and affiliated institutions were not "intelligence sources" within the meaning of § 102(d)(3). 479 F.Supp. 84 (1979).
"[A]n 'intelligence source' is a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it."
206 U.S.App.D.C. 157, 166, 642 F.2d 562, 571 (1980).
desire to take effective counter-measures, . . . [the Agency] could reasonably determine that this research was needed for its intelligence function."
App. to Pet. for Cert. in No. 83-1075, pp. 22a-23a.
The court then turned to the question whether the Agency could show, as the Court of Appeals' definition requires, that it could not reasonably have expected to obtain the information supplied by the MKULTRA sources without guaranteeing confidentiality to them. The court concluded that the Agency's policy of considering its relationships with MKULTRA researchers as confidential was not sufficient to satisfy the Court of Appeals' definition, because "the chief desire for confidentiality was on the part of the CIA." Id. at 24a. The court recognized that some of the researchers had sought, and received, express guarantees of confidentiality from the Agency, and, as to those, held that their identities need not be disclosed. The court also exempted other researchers from disclosure on the ground that their work for the Agency, apart from MKULTRA, required that their identities remain secret in order not to compromise the Agency's intelligence networks in foreign countries. Id. at 26a-27a, 30a-31a. Finally, the court held that there was no need to disclose the institutional affiliations of the individual researchers whose identities were exempt from disclosure; this withholding was justified by the need to eliminate the unnecessary risk that such intelligence sources would be identified indirectly. Id. at 27a, 34a.
Both the Agency and respondents appealed. The Court of Appeals affirmed that part of the District Court's judgment exempting from disclosure the institutional affiliations of individual researchers found to be intelligence sources. However, it reversed the District Court's ruling with respect to which individual researchers satisfied "the need-for-confidentiality" aspect of its formulation of exempt "intelligence sources." 228 U.S.App.D.C. 269, 275, 709 F.2d 95, 101 (1983).
We granted certiorari, 465 U.S. 1078 (1984) and 467 U.S. 1240 (1984). We now reverse in part and affirm in part.
public disclosure is not always in the public interest, and thus provided that agency records may be withheld from disclosure under any of the nine exemptions defined in 5 U.S.C. § 552(b). Under Exemption 3, disclosure need not be made as to information "specifically exempted from disclosure by statute" if the statute affords the agency no discretion on disclosure, § 552(b)(3)(A), establishes particular criteria for withholding the information, or refers to the particular types of material to be withheld, § 552(b)(3)(B).
The question in No. 83-1075 is twofold: first, does § 102(d)(3) of the National Security Act of 1947 constitute a statutory exemption to disclosure within the meaning of Exemption 3; and second, are the MKULTRA researchers included within § 102(d)(3)'s protection of "intelligence sources."
Congress has made the Director of Central Intelligence "responsible for protecting intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403(d)(3). As part of its postwar reorganization of the national defense system, Congress chartered the Agency with the responsibility of coordinating intelligence activities relating to national security. [Footnote 10] In order to carry out its mission, the Agency was expressly entrusted with protecting the heart of all intelligence operations -- "sources and methods."
Our conclusion that § 102(d)(3) qualifies as a withholding statute under Exemption 3 is only the first step of the inquiry. Agency records are protected under § 102(d)(3) only to the extent they contain "intelligence sources and methods," or if disclosure would reveal otherwise protected information.
broad authority to protect all sources of intelligence information from disclosure. The Court of Appeals' narrowing of this authority not only contravenes the express intention of Congress, but also overlooks the practical necessities of modern intelligence gathering -- the very reason Congress entrusted this Agency with sweeping power to protect its "intelligence sources and methods."
We begin with the language of § 102(d)(3). Baldrige v. Shapiro, 455 U. S. 345, 455 U. S. 356 (1982); Steadman v. SEC, 450 U. S. 91, 450 U. S. 97 (1981). Section 102(d)(3) specifically authorizes the Director of Central Intelligence to protect "intelligence sources and methods" from disclosure. Plainly the broad sweep of this statutory language comports with the nature of the Agency's unique responsibilities. To keep informed of other nations' activities bearing on our national security the Agency must rely on a host of sources. At the same time, the Director must have the authority to shield those Agency activities and sources from any disclosures that would unnecessarily compromise the Agency's efforts.
of intelligence that provide, or are engaged to provide, information the Agency needs to perform its statutory duties with respect to foreign intelligence. The plain statutory language is not to be ignored. Weber Aircraft Corp., supra, at 465 U. S. 798.
The legislative history of § 102(d)(3) also makes clear that Congress intended to give the Director of Central Intelligence broad power to protect the secrecy and integrity of the intelligence process. The reasons are too obvious to call for enlarged discussion; without such protections, the Agency would be virtually impotent.
Enacted shortly after World War II, § 102(d)(3) of the National Security Act of 1947 established the Agency and empowered it, among other things, "to correlate and evaluate intelligence relating to the national security." 50 U.S.C. § 403(d)(3). The tragedy of Pearl Harbor and the reported deficiencies in American intelligence during the course of the war convinced the Congress that the country's ability to gather and analyze intelligence, in peacetime as well as in war, must be improved. See, e.g., H.R.Rep. No. 961, 80th Cong., 1st Sess., 3-4 (1947); S.Rep. No. 239, 80th Cong., 1st Sess., 2 (1947).
"intelligence is a composite of authenticated and evaluated information covering not only the armed forces establishment of a possible enemy, but also his industrial capacity, racial traits, religious beliefs, and other related aspects."
"foreign intelligence [gathering] consists of securing all possible data pertaining to foreign governments or the national defense and security of the United States."
"American businessmen and American professors and Americans of all types and descriptions who travel around the world are one of the greatest repositories of intelligence that we have."
people with knowledge of affairs abroad."
Congress was also well aware of the importance of secrecy in the intelligence field. Both General Vandenberg and Allen Dulles testified about the grim consequences facing intelligence sources whose identities became known. See Closed House Hearings, at 10-11, 20. Moreover, Dulles explained that even American citizens who freely supply intelligence information "close up like a clam" unless they can hold the Government "responsible to keep the complete security of the information they turn over." Id. at 22. [Footnote 16] Congress was plainly alert to the need for maintaining confidentiality -- both Houses went into executive session to consider the legislation creating the Agency -- a rare practice for congressional sessions. See n 15, supra.
for fully protecting intelligence sources and methods," id. at 1339. The fact that the mandate of § 102(d)(3) derives from this Presidential Directive reinforces our reading of the legislative history that Congress gave the Agency broad power to control the disclosure of intelligence sources.
efforts were necessary in order to keep informed of our potential adversaries' perceived threat. We thus conclude that MKULTRA researchers are "intelligence sources" within the broad meaning of § 102(d)(3) because these persons provided, or were engaged to provide, information the Agency needs to fulfill its statutory obligations with respect to foreign intelligence.
Director of Central Intelligence with the broad discretion to safeguard the Agency's sources and methods of operation.
The Court of Appeals underestimated the importance of providing intelligence sources with an assurance of confidentiality that is as absolute as possible. Under the court's approach, the Agency would be forced to disclose a source whenever a court determines, after the fact, that the Agency could have obtained the kind of information supplied without promising confidentiality. [Footnote 20] This forced disclosure of the identities of its intelligence sources could well have a devastating impact on the Agency's ability to carry out its mission.
"The Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service."
Snepp v. United States, 444 U. S. 507, 444 U. S. 509, n. 3 (1980) (per curiam). See Haig v. Agee, 453 U. S. 280, 453 U. S. 307 (1981). If potentially valuable intelligence sources come to think that the Agency will be unable to maintain the confidentiality of its relationship to them, many could well refuse to supply information to the Agency in the first place.
Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to "close up like a clam." To induce some sources to cooperate, the Government must tender as absolute an assurance of confidentiality as it possibly can.
that might compromise them and even endanger [their] personal safety."
Snepp v. United States, supra, at 444 U. S. 512.
We seriously doubt whether a potential intelligence source will rest assured knowing that judges, who have little or no background in the delicate business of intelligence gathering, will order his identity revealed only after examining the facts of the case to determine whether the Agency actually needed to promise confidentiality in order to obtain the information. An intelligence source will "not be concerned with the underlying rationale for disclosure of" his cooperation if it was secured "under assurances of confidentiality." Baldrige v. Shapiro, 455 U.S. at 455 U. S. 361. Moreover, a court's decision whether an intelligence source will be harmed if his identity is revealed will often require complex political, historical, and psychological judgments. See, e.g., Fitzgibbon v. CIA, 578 F.Supp. 704 (DC 1983). There is no reason for a potential intelligence source, whose welfare and safety may be at stake, to have great confidence in the ability of judges to make those judgments correctly.
The Court of Appeals also failed to recognize that, when Congress protected "intelligence sources" from disclosure, it was not simply protecting sources of secret intelligence information. As noted above, Congress was well aware that secret agents as depicted in novels and the media are not the typical intelligence source; many important sources provide intelligence information that members of the public could also obtain. Under the Court of Appeals' approach, the Agency could not withhold the identity of a source of intelligence if that information is also publicly available. This analysis ignores the realities of intelligence work, which often involves seemingly innocuous sources as well as unsuspecting individuals who provide valuable intelligence information.
The "statutory mandate" of § 102(d)(3) is clear: Congress gave the Director wide-ranging authority to "protec[t] intelligence sources and methods from unauthorized disclosure." Snepp v. United States, supra, at 444 U. S. 509, n. 3. An intelligence source provides, or is engaged to provide, information the Agency needs to fulfill its statutory obligations. The record establishes that the MKULTRA researchers did in fact provide the Agency with information related to the Agency's intelligence function. We therefore hold that the Director was authorized to withhold the identities of these researchers from disclosure under the FOIA.
ruled that the Director of Central Intelligence need not disclose the institutional affiliations of the MKULTRA researchers previously held to be "intelligence sources." Our conclusion that the MKULTRA researchers are protected from disclosure under § 102(d)(3) renders unnecessary any extended discussion of this discrete issue.
In exercising the authority granted by Congress in § 102(d)(3), the Director must, of course, do more than simply withhold the names of intelligence sources. Such withholding, standing alone, does not carry out the mandate of Congress. Foreign intelligence services have an interest in knowing what is being studied and researched by our agencies dealing with national security and by whom it is being done. Foreign intelligence services have both the capacity to gather and analyze any information that is in the public domain and the substantial expertise in deducing the identities of intelligence sources from seemingly unimportant details.
"'[w]hat may seem trivial to the uninformed may appear of great moment to one who has a broad view of the scene, and may put the questioned item of information in its proper context.'"
Gardels v. CIA, 223 U.S.App.D.C. 88, 91-92, 689 F.2d 1100, 1103-1104 (1982); Halperin v. CIA, supra, at 113, 629 F.2d at 147.
Here the Director concluded that disclosure of the institutional affiliations of the MKULTRA researchers could lead to identifying the researchers themselves, and thus the disclosure posed an unacceptable risk of revealing protected "intelligence sources." [Footnote 22] The decisions of the Director, who must of course be familiar with "the whole picture," as judges are not, are worthy of great deference, given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information must be withheld can convey valuable information to a foreign intelligence agency.
who is knowledgeable about a particular intelligence research project, like MKULTRA, could, upon learning that research was performed at a certain institution, often deduce the identities of the individual researchers who are protected "intelligence sources." The FOIA does not require disclosure under such circumstances.
Respondents contend that, because the Agency has already revealed the names of many of the institutions at which MKULTRA research was performed, the Agency is somehow estopped from withholding the names of others. This suggestion overlooks the political realities of intelligence operations in which, among other things, our Government may choose to release information deliberately to "send a message" to allies or adversaries. [Footnote 24] Congress did not mandate the withholding of information that may reveal the identity of an intelligence source; it made the Director of Central Intelligence responsible only for protecting against unauthorized disclosures.
of doing so. But Congress, in § 102(d)(3), entrusted this discretionary authority to the Director, and the fact that Admiral Turner made that determination in 1978 does not bind his successors to make the same determination, in a different context, with respect to institutions requesting that their identities not be disclosed. See, e.g., Salisbury v. United States, 223 U.S.App.D.C. 243, 248, 690 F.2d 966, 971 (1982).
We hold that the Director of Central Intelligence properly invoked § 102(d)(3) of the National Security Act of 1947 to withhold disclosure of the identities of the individual MKULTRA researchers as protected "intelligence sources." We also hold that the FOIA does not require the Director to disclose the institutional affiliations of the exempt researchers in light of the record which supports the Agency's determination that such disclosure would lead to an unacceptable risk of disclosing the sources' identities.
Accordingly, we reverse that part of the judgment of the Court of Appeals regarding the disclosure of the individual researchers and affirm that part of the judgment pertaining to disclosure of the researchers' institutional affiliations.
* Together with No. 83-1249, Sims et al. v. Central Intelligence Agency et al., also on certiorari to the same court.
Final Report of the Select Committee to Study Government Operations with Respect to Intelligence Activities, S.Rep. No. 94-755, Book I, p. 389 (1976) (footnote omitted) (Final Report). MKULTRA began with a proposal from Richard Helms, then the Agency's Assistant Deputy Director for Plans. Helms outlined a special funding mechanism for highly sensitive Agency research and development projects that would study the use of biological and chemical materials in altering human behavior. MKULTRA was approved by Allen Dulles, then the Director of Central Intelligence, on April 13, 1953.
Several MKULTRA subprojects involved experiments where researchers surreptitiously administered dangerous drugs, such as LSD, to unwitting human subjects. At least two persons died as a result of MKULTRA experiments, and others may have suffered impaired health because of the testing. See id. at 392-403. This type of experimentation is now expressly forbidden by Executive Order. Exec.Order No. 12333, § 2.10, 3 CFR 213 (1982).
See generally Final Report, at 385-422, 471-472; Report to the President by the Commission on CIA Activities Within the United States 226-228 (June 1975); Project MKULTRA, the CIA's Program of Research in Behavioral Modification: Joint Hearings before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977); Human Drug Testing by the CIA, 1977: Hearings on S. 1893 before the Subcommittee on Health and Scientific Research of the Senate Committee on Human Resources, 95th Cong., 1st Sess. (1977).
An internal Agency report by its Inspector General had documented the controversial aspects of the MKULTRA project in 1963. See Report of Inspection of MKULTRA (July 26, 1963).
Sims and Wolfe are the respondents in No. 83-1075 and the crosspetitioners in No. 83-1249. In order to avoid confusion, we refer to Sims and Wolfe as respondents throughout this opinion.
Twenty years after the conception of the MKULTRA project, all known files pertaining to MKULTRA were ordered destroyed. Final Report, at 389-390, 403-405. In 1977, the Agency located some 8,000 pages of previously undisclosed MKULTRA documents. These consisted mostly of financial records that had inadvertently survived the 1973 records destruction. Upon this discovery, Agency Director Stansfield Turner notified the Senate Select Committee on Intelligence and later testified at a joint hearing before the Select Committee and the Subcommittee on Health and Scientific Resources of the Senate Committee on Human Resources. Although the Joint Committee was given a complete list of the MKULTRA researchers and institutions, the Committee honored the Agency's request to treat the names as confidential. Respondents sought the surviving MKULTRA records that would provide this information.
The Agency also cited Exemption 6, 5 U.S.C. 552(b)(6), which insulates from disclosure "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." This claim, rejected by the District Court and the Court of Appeals, is no longer at issue.
The Agency tried to contact each institution involved in MKULTRA to ask permission to disclose its identity; it released the names of the 59 institutions that had consented. Evidently, the Agency made no parallel effort to contact the 185 individual researchers. See n 22, infra.
"no reason to think that section 403(d)(3) was meant to protect sources of information only if secrecy was needed in order to obtain the information."
"[i]t seems far more in keeping with the broad language and purpose of [§ 403(d)(3)] to conclude that it authorizes the nondisclosure of a source of information whenever disclosure might lead to discovery of what subjects were of interest to the CIA."
Ibid. He also took issue with the majority's conclusion that the FOIA sometimes requires the Agency to break a promise of confidentiality it has given to an intelligence source. This is "not an honorable way for the government of the United States to behave," and would produce "pernicious results." Id. at 276-277, 709 F.2d at 102-103.
The Court has consistently recognized this principle. See, e.g., Baldrige v. Shapiro, 455 U. S. 345, 455 U. S. 352 (1982); NLRB v. Robbins Tire & Rubber Co., 437 U. S. 214, 437 U. S. 220 (1978); EPA v. Mink, 410 U. S. 73, 410 U. S. 80 (1973).
See, e.g., H.R.Rep. No. 961, 80th Cong., 1st Sess., 3 (1947); S.Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
See H.R.Rep. No. 94-880, pt. 2, p. 15, n. 2 (1976). See also H.R.Conf.Rep. No. 93-1380, p. 12 (1974); S.Conf.Rep. No. 93-1200, p. 12 (1974); S.Rep. No. 93-854, p. 16 (1974). For a thorough review of the relevant background, see DeLaurentiis v. Haig, 686 F.2d 192, 195-197 (CA3 1982) (per curiam).
Recently, Congress enacted the Central Intelligence Agency Information Act, Pub.L. 98-477, 98 Stat. 2209, exempting the Agency's "operational files" from the FOIA. The legislative history reveals that Congress maintains the position that § 102(d)(3) is an Exemption 3 statute. See, e.g., H.R.Rep. No. 98-726, pt. 1, p. 5 (1984); S.Rep. No. 98-305, p. 7, n. 4 (1983).
See, e.g., Miller v. Case, 235 U.S.App.D.C. 11, 15, 730 F.2d 773, 777 (1984); Gardels v. CIA, 223 U.S.App.D.C. 88, 91, 689 F.2d 1100, 1103 (1982); Halperin v. CIA, 203 U.S.App.D.C. 110, 113, 629 F.2d 144, 147 (1980); National Comm'n on Law Enforcement and Social Justice v. CIA, 576 F.2d 1373, 1376 (CA9 1978).
Congress certainly is capable of drafting legislation that narrows the category of protected sources of information. In other provisions of the FOIA and in the Privacy Act, Congress has protected "confidential source[s]," sources of "confidential information," and sources that provided information under an express promise of confidentiality. See 5 U.S.C. §§ 552(b)(7)(D), 552a(k)(2) and (5).
"function of [the Agency] is to constitute itself as a gathering point for information coming from all over the world through all kinds of channels."
93 Cong.Rec. 9397 (1947). Representative Boggs, during the course of the House hearings, commented that the Director of Central Intelligence "is dealing with all the information and the evaluation of that information, from wherever we can get it." National Security Act of 1947: Hearings on H.R. 2319 before the House Committee on Expenditures in the Executive Departments, 80th Cong., 1st Sess., 112 (1947).
These hearings were held in executive session. The transcript was declassified in 1982. The Senate also held hearings behind closed doors. See S.Rep. No. 239, 80th Cong., 1st Sess., 1 (1947).
"The necessity of procuring good intelligence is apparent, and need not be further urged. All that remains for me to add is that you keep the whole matter as secret as possible. For upon secrecy, success depends in most Enterprises of the kind, and for want of it they are generally defeated. . . ."
8 Writings of George Washington 478-479 (J. Fitzpatrick ed.1933) (letter from George Washington to Colonel Elias Dayton, July 26, 1777).
"learning the state of the art of behavioral modification at a time when the U.S. Government was concerned about inexplicable behavior of persons behind the 'iron curtain' and American prisoners of war who had been subjected to so called 'brainwashing.'"
Indeed, the legislative history of the recently enacted Central Intelligence Agency Information Act, Pub.L. 98-477, 98 Stat. 2209, in which Congress exempted the Agency's "operational files" from disclosure under the FOIA, 50 U.S.C. § 431 (1982 ed., Supp. III), reveals Congress' continued understanding that scientific researchers would be valuable intelligence sources. See H.R.Rep. No. 98-726, pt. 1, p. 22 (1984).
Indeed, the Court of Appeals suggested that the Agency would be required to betray an explicit promise of confidentiality if a court determines that the promise was not necessary, or if a court concludes that the intelligence source to whom the promise was given was "unreasonably and atypically leery" of cooperating with the Agency. 228 U.S.App.D.C. at 273, 709 F.2d at 99. However, "[g]reat nations, like great men, should keep their word." FPC v. Tuscarora Indian Nation, 362 U. S. 99, 362 U. S. 142 (1960) (Black, J., dissenting).
"[t]hroughout the course of the [MKULTRA] Project, CIA involvement or association with the research was concealed in order to avoid stimulating the interest of hostile countries in the same research areas."
App. to Pet. for Cert. in No. 83-1075, pp. 89a-9Oa.
During the congressional inquiries into MKULTRA, then Director of Central Intelligence Turner notified the 80 institutions at which MKULTRA research had been conducted. Many of these institutions had not previously been advised of their involvement; Director Turner notified them as part of "a course of action [designed to] lead to the identification of unwitting experimental subjects." Id. at 92a, n. 1. As a result of inquiries into the MKULTRA program, many of these institutions disclosed their involvement to the public. Others advised the Agency that they had no objection to public disclosure. Director Turner disclosed the names of these institutions; he did not disclose the names of any institutions that objected to disclosure. See n 7, supra.
"a threat of damage to existing intelligence-related arrangements with the institutions or exposure of past relationships with the institutions."
"[D]uring the Cuban missile crisis, President Kennedy decided to release a great deal of sensitive intelligence information concerning Soviet missile installations in Cuba. It was clear, at that time, that the Soviets had to be told publicly that the United States Government had precise information on the extent of the Soviet threat in order to justify the strong countermeasures then taken by our Government."
App. to Pet. for Cert. in No. 83-1075, p. 90a.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, concurring in the result.
Court of Appeals erred does not, however, compel the conclusion that the Agency's sweeping alternative definition is in fact the correct one. [Footnote 2/2] The Court nonetheless simply adopts wholesale the Agency's definition of "intelligence source." That definition is mandated neither by the language or legislative history of any congressional Act, nor by legitimate policy considerations, and it in fact thwarts congressional efforts to balance the public's interest in information and the Government's need for secrecy. I therefore decline to join the opinion of the Court.
The Freedom of Information Act (FOIA or Act) established a broad mandate for disclosure of governmental information by requiring that all materials be made public "unless explicitly allowed to be kept secret by one of the exemptions. . . ." S.Rep. No. 813, 89th Cong., 1st Sess., 10 (1965). The Act requires courts to review de novo agency claims of exemption, and it places on the agency the burden of defending its withholding of information. 5 U.S.C. § 552(a)(4)(B). Congress, it is clear, sought to assure that the Government would not operate behind a veil of secrecy, and it narrowly tailored the exceptions to the fundamental goal of disclosure.
quite rightly identifies § 102(d)(3) of the National Security Act as a statutory exemption of the kind to which Exemption 3 refers; that section places with the Director of Central Intelligence the responsibility for "protecting intelligence sources and methods from unauthorized disclosure."
"(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order."
5 U.S.C. § 552(b)(1). This latter Exemption gives to the Executive Branch the authority to define material that will not be disclosed, subject of course to congressional amendment of the Exemption. Agency decisions to withhold are subject to de novo review in the courts, which must ascertain whether documents are correctly classified, both substantively and procedurally.
Exemption 1 is the keystone of a congressional scheme that balances deference to the Executive's interest in maintaining secrecy with continued judicial and congressional oversight. In the past, Congress has taken affirmative steps to make clear the importance of this oversight. See n. 5, infra. Exemption 1 allows the Government to protect from the scrutiny of this Nation's enemies classes of information that warrant protection, as long as the Government proceeds through a publicly issued, congressionally scrutinized, and judicially enforced executive order. See Hearing on Executive Order on Security Classification before the Subcommittee of the Committee on Government Operations of the House of Representatives, 97th Cong., 2d Sess. (1982) (Hearing).
the "intelligence source" provision, is extraordinary. By focusing myopically on the single statutory provision on which the Agency has chosen to rely in asserting its secrecy right, the Court rewards the Agency's decision not to invoke Exemption 1 in these cases. [Footnote 2/3] Of course, the Agency may fairly assert any possible ground for decision, and it has no duty to select that which is narrowest. But the Court, intent to assure that important information is protected, today plays into the Agency's hands by stretching the "intelligence source" exception beyond its natural limit; it does so while simply ignoring the fact that the information sought could properly have been withheld on other grounds -- on which the Agency chose not to rely. The cost of acceding to the Agency's litigation strategy, rather than undertaking a thorough analysis of the entire statutory scheme, is to mangle, seriously, a carefully crafted statutory scheme.
"forced disclosure of the identities of its intelligence sources could well have a devastating impact on the Agency's ability to carry out its mission."
Ante at 471 U. S. 175; see also Brief for Petitioners in No. 83-1075, p. 31. The Court offers examples of highly sensitive information that, under the lower court's reading, might be disclosed. See ante at 471 U. S. 176-177; see also Brief for Petitioners in No. 831075, pp. 34-37.
the Court completely bypasses a considerably more rational definition that comports at least as well with the statutory language and legislative history, and that maintains the congressionally imposed limits on the Agency's exercise of discretion in this area.
To my mind, the phrase "intelligence source" refers only to sources who provide information either on an express or implied promise of confidentiality, and the exemption protects such information and material that would lead to disclosure of such information. This reading is amply supported by the language of the statute and its history.
"[C]ertain of these sources are not 'intelligence sources.' They are not involved in intelligence agencies or in intelligence work. They happen to be sources of information received by these agencies in confidence."
Hearing, at 204. The current administration's definition of the term "intelligence source" as used in its Executive Order does not, of course, control our interpretation of a longstanding statute. But the fact that the same administration has read the phrase in different ways for different purposes certainly undercuts the Court's argument that the phrase has any single and readily apparent definition.
"[P]lain meaning, like beauty, is sometimes in the eye of the beholder," Florida Power & Light Co. v. Lorion, 470 U. S. 729, 470 U. S. 737 (1985), and in an instance such as this one, in which the term at issue carries with it more than one plausible meaning, it is simply inappropriate to select a single reading and label it the "plain meaning." The Court, like the Government, argues that the statute does not say "confidential source," as it might were its scope limited to sources who have received an implied or express promise of confidentiality. See ante at 471 U. S. 169, and n. 13; Brief for Petitioners in No. 83-1075, p. 16. However, the statute also does not say "information source" as it might were it meant to define the class of material that the Court identifies. I therefore reject the Court's basic premise that the language at issue necessarily has but a single, obvious interpretation.
"applied to information, the unauthorized disclosure of which reasonably could be expected to cause identifiable damage to the national security."
mean that Congress had decided to slice out from all the Agency's possible documents a class of material that may always be protected, no matter what the scope of the existing executive order. But the class that the Court defines is boundless. It is difficult to conceive of anything the Central Intelligence Agency might have within its many files that might not disclose or enable an observer to discover something about where the Agency gathers information. Indeed, even newspapers and public libraries, road maps and telephone books appear to fall within the definition adopted by the Court today. The result is to cast an irrebuttable presumption of secrecy over an expansive array of information in Agency files, whether or not disclosure would be detrimental to national security, and to rid the Agency of the burden of making individualized showings of compliance with an executive order. Perhaps the Court believes all Agency documents should be susceptible to withholding in this way. But Congress, it must be recalled, expressed strong disagreement by passing, and then amending, Exemption 1. In light of the Court's ruling, the Agency may nonetheless circumvent the procedure Congress has developed, and thereby undermine this explicit effort to keep from the Agency broad and unreviewable discretion over an expansive class of information.
The Court today reads its own concerns into the single phrase, "intelligence source." To justify its expansive reading of these two words in the National Security Act, the Court explains that the Agency must be wary, protect itself, and not allow observers to learn either of its information resources or of the topics of its interest.
"Disclosure of the subject matter of the Agency's research efforts and inquiries may compromise the Agency's ability to gather intelligence as much as disclosure of the identities of intelligence sources,"
ante at 471 U. S. 176, the Court observes, and the "intelligence source"
exemption must bear the weight of that concern as well. That the Court points to no legislator or witness before Congress who expressed a concern for protecting such information through this provision is irrelevant to the Court. That each of the examples the Court offers of material that might disclose a topic of interest, and that should not be disclosed, could be protected through other existing statutory provisions, is of no moment. [Footnote 2/7] That the public already knows all about the MKULTRA project at issue in this case, except for the names of the researchers, and therefore that the Court's concern about disclosure of the Agency's "topics of interest" argument is not appropriate to this case, is of no consequence. And finally, that the Agency now has virtually unlimited discretion to label certain information "secret," in contravention of Congress' explicit efforts to confine the Agency's discretion both substantively and procedurally, is of no importance. Instead, simply because the Court can think of information that it believes should not be disclosed, and that might otherwise not fall within this exemption, the Court undertakes the task of interpreting the exemption to cover that information. I cannot imagine the canon of statutory construction upon which this reasoning is based.
Congress gave to the Agency considerable discretion to decide for itself whether the topics of its interest should remain secret, and through Exemption 1, it provided the Executive with the means to protect such information. If the Agency decides to classify the identities of nonconfidential contributors of information so as not to reveal the subject matter or kinds of interests it is pursuing, it may seek an Exemption 1 right to withhold. Under Congress' scheme, that is properly a decision for the Executive. It is not a decision for this Court. Congress has elsewhere identified particular types of information that it believes may be withheld regardless of the existence of an executive order, such as the identities of Agency employees, or, recently, the contents of Agency operational files. See 50 U.S.C. § 403g (exempting from disclosure requirements the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency); Central Intelligence Agency Information Act, Pub.L. 98-477, § 701(a), 98 Stat. 2209, 50 U.S.C. § 431 (1982 ed., Supp. III) (exempting the Agency's operational files from disclosure under FOIA). Each of these categorical exemptions reflects a congressional judgment that, as to certain information, the public interest will always tip in favor of nondisclosure. In these cases, we have absolutely no indication that Congress has ever determined that the broad range of information that will hereinafter be enshrouded in secrecy should be inherently and necessarily confidential. Nevertheless, today the Court reaches out to substitute its own policy judgments for those of Congress.
exposure, while at the same time it avoids an injection into the statutory scheme of the additional concerns of the Members of this Court. The Court of Appeals, however, ordered the release of even more material than I believe should be disclosed. Accordingly, I would reverse and remand this case for reconsideration in light of what I deem to be the proper definition of the term "intelligence source."
"a person or institution that provides, has provided, or has been engaged to provide the CIA with information of a kind the Agency needs to perform its intelligence function effectively, yet could not reasonably expect to obtain without guaranteeing the confidentiality of those who provide it."
206 U.S.App.D.C. 157, 166, 642 F.2d 562, 571 (1980) (Sims I).
The Court today defines an "intelligence source" as one that "provides, or is engaged to provide, information . . . related to the Agency's intelligence function," ante at 471 U. S. 177, and holds also that the Director may withhold, under this definition, information that might enable an observer to discover the identity of such a source. Ante at 471 U. S. 178.
Indeed, these cases present a curious example of the Government's litigation strategy. Despite the repeated urging of the District Court, the Agency steadfastly refused to invoke Exemption 1 to withhold the information at issue. The lists of names of MKULTRA researchers were in fact once classified under an Executive Order, and were therefore within the potential scope of Exemption 1, but the Agency elected to declassify them. See 479 F.Supp. 84, 88 (DC 1979). The District Court went so far as to postpone the effective date of its disclosure order, so the Agency could "act on the possibility of classifying the names of institutions and researchers which would otherwise be disclosable," ibid., and thereby withhold the information under Exemption 1. The Agency refused to do so, however.
The fact that Congress established an Agency to collect information from anywhere it could does not mean that it sought through the phrase "intelligence source" to keep secret everything the Agency did in this regard. Far from it, as the Court and the Agency both acknowledge, the early congressional expressions of concern about secrecy all focused on the need to maintain the anonymity of persons who would provide information only on an assurance of confidentiality.
In EPA v. Mink, 410 U. S. 73 (1973), the Court held that, when an agency relied on Exemption 1, which at the time covered matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," 5 U.S.C. § 552(b)(1) (1970 ed.), a reviewing court could affirm the decision not to disclose on the basis of an agency affidavit stating that the document had been duly classified pursuant to executive order. The Court held that in camera inspection of the documents was neither authorized nor permitted, because "Congress chose to follow the Executive's determination in these matters." 410 U.S. at 410 U. S. 81.
"(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order."
"the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action."
5 U.S.C. § 552(a)(4)(B). The legislative history unequivocally establishes that in camera review would often be necessary and appropriate. See S.Rep. No. 93-1200, p. 9 (1974).
The current Executive Order moves Exemption 1 a step closer to Exemption 3, given the manner in which the Court interprets the National Security Act exemption. Like its predecessor, the Order establishes three classification levels, but unlike the prior Order, the "confidential" classification no longer requires a reasonable possibility of identifiable damage. Instead, the label "confidential" now shall be applied to "information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security." Exec.Order No. 12356, 3 CFR 166 (1983). In addition, the new Order not only lists "intelligence sources" as a category subject to classification, but it also creates a presumption that such information is confidential. This presumption shifts from the Agency the burden of proving the possible consequence to national security of disclosure. As a result, if the Agency defines "intelligence source" under the Executive Order as broadly as the Court defines the term in § 102(d)(3), the Agency need make but a limited showing to a court to invoke Exemption 1 for that material. In light of this new Order, the Court's avid concern for the national security consequences of a narrower definition of the term is quite puzzling.
For example, the Court suggests that disclosure of the fact that the Agency subscribes to an obscure but publicly available Eastern European technical journal "could thwart the Agency's efforts to exploit its value as a source of intelligence information." Ante at 471 U. S. 177; see Brief for Petitioners in No. 83-1075, p. 36. Assuming this method of obtaining information is not protected by Exemption 1, through an executive order, it would surely be protected through Exemption 3's incorporation of § 102(d)(3) of the National Security Act. That provision, in addition to protecting "intelligence sources," also protects "intelligence methods," and surely encompasses covert means of obtaining information, the disclosure of which might close access to certain kinds of information. Similarly, the fact that some unsuspecting individuals provide valuable intelligence information must be protected, see ante at 471 U. S. 176; Brief for Petitioners in No. 83-1075, p. 39, n. 15, but again, because it is a covert means of obtaining information, not because the "source" of that information needs or expects confidentiality.


It is not uncommon for a police officer to simply see a car that seems to be speeding and then stop it. Quite often, the driver quickly admits to exceeding the speed limit and the issue of whether the officer’s guess was correct is not challenged.
Other times, the officer does not have time to pace the suspect’s car because he may be going the opposite direction, waiting at a traffic light perpendicular to the suspect, or accelerating from a stop off on ramp. The visual estimation may be at night and the road may be curving. Then the suspect is more skeptical of the officer’s observation, but being intimidated by a police officer, the suspect still does not challenge the stop.
Is such a traffic stop legal? After all, police officers are merely human. Without some type of objective support, can a judge allow such stops? After all, if a judge does so, doesn’t it open a Pandora’s Box of allowing traffic stops based on other reasons, but justified as speeding? Does this enable racial profiling, for example?
We must realize that a traffic stop is a seizure subject to the protection of the Fourth Amendment of the United States Constitution. Berkemer v. McCarty (1984) 468 U.S. 420, 436. As such, to conduct a legal traffic stop, “reasonable suspicion” is required. This can be based on less than possible cause to believe a violation has occurred, but it cannot be based on mere speculation or a hunch.” People v. Rodriguez (2006) 143 Cal. App. 4th 1137, 1148, People v. Wells (2006) 38 Cal. 4th 1078, 1083.
Reasonable suspicion “requires specific, articuable facts which, together with objective and reasonable inference, form a basis for suspecting that a particular person is engaged in criminal conduct.” People v. White (2003) 107 Cal. App. 4th 636, 641.
In deciding what are “reasonable inferences,” an officer is “entitled to rely on his training and experience. . . but those inferences must be grounded in objective facts and be capable of rational explanation.” U.S. v. Lopez-Soto (9th Cir., 2000) 205 F. 3d 1101, 1105.
Against this framework, City of San Jose Police Officer Beretta and his partner were parked along the side of the street when they saw a white Chevy sedan pass “fairly quickly.” Officer Beretta pulled his car away from the curb and followed the Chevy.
Beretta then caught up to the car and pulled it over for speeding and for failing to signal before making a right turn. When Beretta spoke to the occupants, they both appeared to be under the influence of a stimulant. The passenger then admitted to using meth the night before and said a bag containing meth might be in the car. The car was then searched and officers found meth and cocaine in baggies, apparently packaged for sale, ketamine, ground Dimethyltryptamine, Viagra, Cialis, Adderall, Oxycodone, a collapsible baton and two firearms, one of which was loaded.
The Santa Clara District Attorney charged both occupants of the car with numerous offenses and both occupants of the car moved to suppress the evidence under Penal Code § 1538.5, arguing the officers lacked the required reasonable suspicion for the traffic stop. The trial court denied the motion and then both defendants entered into plea bargains. One defendant agreed to six years in state prison and the other defendant, Steven Nice, agreed to a probationary sentence with one year in county jail. Defendants then appealed the ruling on the denied Motion to Suppress to the Sixth Appellate District.
The appellate court, in People v. Steven Andrew Nice (2016 DJDAR 5122), affirmed the trial court. The appellate court methodically considered the case law set forth above. It further noted that officer Beretta had taken a 40-hour in-house speed radar estimation class and “had probably completed at least a thousand speed estimates with or without radar during his 14 years as a police officer.” The court found that due to this training and experience, the officer’s “reasonable inferences” were sufficiently supported to believe the driver was “engaged in criminal conduct.” This belief constituted the reasonable suspicion that is required to make a legal traffic stop. The trial court’s denial of the Motion to Suppress was thus affirmed.
As defense attorneys, we do not like this ruling at all. However, we note the rather long experience the appellate court described and the 40-hour course that the appellate court considered important. Thus, in future cases involving visual estimations of speed, a motion to suppress should be considered against the standard this case seems to set. If the officer in your case lacked the same or more experience as officer Beretta here, the judge should not make new law and we would argue, grant such a motion to suppress based on a mere visual estimation of speed.


This case was before the Court on one of the Defendant’s Motion for Partial Judgment on the Pleadings filed. The Plaintiffs did not file any response to the Motion. Of interest, the Court held that certain non-FLSA state law claims were not preempted by the FLSA. In so holding, the Court noted its agreement with the Ninth Circuit and disagreement with the Fourth Circuit on this issue. Nonetheless the claims at issue were dismissed for failure to state a claim, because they failed to allege, with specicificity, the facts on which such claims could rest.
“In this action, Plaintiffs were migrant agricultural workers employed by Pittman Nursery Corporation for seasonal work. They allege that a former Pittman Nursery employee, Dawood Aydani, extorted money from them over the course of several years, in the form of kickbacks, and that such extortion effectively reduced Plaintiffs’ net compensation below the federal and state minimum wage. Specifically, Plaintiffs allege that Mr. Aydani required Plaintiffs to pay him $1,000 cash to secure and keep their employment. They further allege that these funds were then shared with some of the other Defendants in this action.
“The FLSA authorizes workers to file private actions to recover unpaid wages, damages, costs, and attorneys’ fees. 29 U.S.C. § 216(b). Pittman Nursery argues that, because Congress intended that these remedies be exclusive, duplicative claims seeking damages beyond those established under the FLSA are preempted by federal law. In the present case, Pittman Nursery asserts that the FLSA preempts Plaintiffs’ state law and RICO claims because these claims are duplicative. The Court does not agree.
The Eighth Circuit has not addressed the issue of whether the remedies under the FLSA are exclusive. The Court is aware that the Fourth Circuit has held that the FLSA preempts claims that “depend on establishing that [the employer] violated the FLSA.” Anderson v. Sara Lee Corp., 508 F.3d 181, 193 (4th Cir.2007). Several other district courts outside of the Eighth Circuit have ruled that state claims are preempted by the FLSA where those claims merely duplicate the FLSA claims. Id. at 194. On the other hand, the Ninth Circuit has held that the FLSA does not preempt common law fraud claims and that the FLSA does not provide exclusive remedies for violating its provisions. Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1151-53 (9th Cir.2000). Also, several district court cases within the Eighth Circuit have held that the FLSA does not provide the exclusive remedy for its violations and does not preempt state law claims even when there is a common core of operative facts. See Cortez v. Neb. Beef, Inc., Nos. 8:08CV90, 8:08CV99, 2010 WL 604629 (D.Neb. Feb.16, 2010); Bouaphakeo v. Tyson Foods, Inc., 564 F.Supp.2d 870, 886 (N.D.Iowa 2008); Robertson v. LTS Management Services, LLC, 642 F.Supp.2d 922, 928 (W.D.Mo.2008); Osby v. Citigroup, Inc., No. 07-CV-06085-NKL, 2008 WL 2074102 (W.D.Mo. May 14, 2008). Most district courts in the Eighth Circuit agree that the FLSA’s savings clause, which allows states to enact stricter wage, hour, and child labor provisions, indicates that the FLSA does not provide an exclusive remedy for its violations. Bouaphakeo, 564 F.Supp.2d at 882. In fact, “it would seem that state law may offer an alternative legal basis for equal or more generous relief for the same alleged wrongs.” Cortez, 2010 WL 604629, at *6.
By Andrew Frisch in Preemption, State Law Claims on July 1, 2010 .


§ 1110.1 Purpose and scope.
§ 1110.7 Who must certify and provide a certificate.
§ 1110.9 Form of certificate.
§ 1110.11 Content of certificate.
§ 1110.13 Availability of electronic certificate.
§ 1110.15 Legal responsibility for certificate information.
Pub. L. No. 110-314, § 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 14.
73 FR 68331, Nov. 18, 2008, unless otherwise noted.