author: MARQUEZ, District Judge.

text:
    Donna G. PIERCE, Plaintiff, v. Margaret M. HECKLER, Defendant.
    No. CIV 83-0754 TUC ACM.
    United States District Court, D. Arizona, Tucson Division.
    Sept. 26, 1985.

      Brian I. Clymer, Tretschok, McNamara & Clymer, Tucson, Ariz., for plaintiff.
    Dennis J. Mulshine, Asst. Regional Atty., Region 9, San Francisco, Cal., and Don B. Overall, Asst. U.S. Atty., Tucson, Ariz., for defendant.
   ORDER

MARQUEZ, District Judge.

This case is before the court on the plaintiff’s motion for an order in the nature of mandamus pursuant to 28 U.S.C. § 1361.

The plaintiff apparently was injured on September 3, 1981 in an automobile accident. On June 3, 1982 she submitted applications for disability benefits and supplemental security income benefits. The Administrative Law Judge (AU) found plaintiff not to be disabled and denied benefits. On September 15, 1983 the Appeals Council approved the denial of benefits: This action was then commenced.

On June 15, 1984 the magistrate recommended that the case be remanded to the Appeals Council to consider plaintiff’s ability to work. It was also suggested that testimony from a vocational expert should be obtained. On July 18, 1984 this court adopted the magistrate’s recommendation and remanded the case with instructions.

Pursuant to the remand order, on February 14, 1985 an evidentiary hearing was held by an AU. At the hearing two doctors and a vocational expert testified. On April 5, 1985 the AU issued his recommendation that plaintiff be found disabled from September 3, 1981 to December 1983 and entitled to benefits through February 29, 1984. Both parties took exception to this finding. Plaintiff contends that she is disabled up to the present. The Secretary contends that she is not and was not disabled.

The Appeals Council reviewed the case and re-remanded the action to the AU for further testimony. The Appeals Council directed that the testimony of the vocational expert be given in the form of hypothetical questions and that the AU consider the issue of pain. The Appeals Council did not discuss the question of whether the plaintiff was entitled to disability benefits beyond February 29, 1984 under plaintiff’s claim of a trial work period. Plaintiff then filed this instant motion seeking an order requiring payment of disability benefits up to and including the present.

The Secretary contends that the Appeals Council was acting within its authority under 20 C.F.R. §§ 404.983; 404.977(e)(2); 416.1483; and 416.1477(e)(2). These regulations allow the Council to remand for additional evidence if it finds such additional evidence to be necessary.

The Appeals Council does not have unlimited discretion to remand a case. See, Queenan v. Heckler, 581 F.Supp. 1216 (S.D.N.Y.1984). The court has examined the administrative record in this matter and finds an abuse of discretion in the re-remand order of the Appeals Council.

The re-remand order states: “it is for the administrative law judge to assess the credibility of the complaints of pain and the limitations resulting therefrom.” Later the Appeals Council re-remand order continues: “The administrative law judge shall made [Sic] specific findings as to the credibility of the complaints of pain under the above standard.”

The recommendation of the Administrative Law Judge included an extensive analysis of the plaintiff’s subjective claims of pain. The AU reached the conclusion that despite plaintiff’s subjective claims, “the undersigned is of the opinion that the work in question refutes the evidence of the pain and discomfort being so significant that it precluded substantial gainful activity.” (Administrative Law Judge’s decision at page 10).

It is difficult for this court to determine what a re-review of the evidence of pain could provide. The record establishes that the AU extensively considered the issue of pain and rejected it as being sufficient to show disability. It was upon this conclusion that the AU determined that the plaintiff's disability ended after she began employment in December, 1983.

The Appeals Council also took exception with the manner in which the AU examined the vocational expert. The re-remand order directs the use of hypothetical questions based on varying degrees of pain. Again, in light of the AU’s rejection of the existence of sufficient pain to establish disability, the court fails to understand the relevance of this type of questioning.

The transcript of the proceedings shows that the vocational expert, present on behalf of the administration, observed two and one half hours of medical testimony. The medical testimony was by two separate doctors, one the plaintiff’s treating physician and the other appearing on behalf of the administration. Both physicians agreed that the plaintiff had physical problems from the date of the accident until a second surgical operation in 1983. Both doctors agreed that pain would certainly be present up to that time. Not until the second operation was much of the pain relieved and movement of the arm and shoulder restored. It was based on these undisputed facts that the vocational expert concluded that the plaintiff was unable to perform even sedentary levels of work due to the lack of motion in her dominant hand and arm.

Although the testimony of the vocational expert was brief, the expert indicated that his conclusion as to this individual had been reached based on the medical testimony. It does not appear that that opinion would change based on hypothetical questions regarding varying levels of pain. This is particularly true here as the AU substantially eliminated pain as being the basis of his decision.

The plaintiff has endured two full eviden-tiary hearings with regard to her claims. The Appeals Council did not remand for only a portion of the case to be redeveloped. Rather, the re-remand order requires a complete new hearing. The plaintiff is entitled to a determination of her claim on the merits at this point.

The constant remanding and re-remanding of cases based on this type of record accomplishes little. It only has the effect of delaying the inevitable determination on the merits. From the re-remand order in this case, it is apparent that the Appeals Council disagreed with the ALJ’s conclusion with regard to the influence of pain. The largest portion of the re-remand order is devoted to this subject.

The Administrative Law Judge thoroughly considered and decided this issue. If the Appeals Council disagrees with that conclusion, the proper method of ruling on the decision is to reverse the AU. A remand to merely reconsider a decision already based on substantial evidence is a clear abuse of the remand authority.

It must be concluded then that the re-remand order in this case was improper. The plaintiff is entitled to a decision on her claim on its merits. The court, however, does not agree with the plaintiff that this court should determine the merits and order benefits to be paid from the date of the accident to the present. The Appeals Council did not address the question of whether or not the employment in December, 1983 amounted to a trial work period. Nor has the Appeals Council determined whether the AU was correct in his other decisions. The Appeals Council should be given such an opportunity, at this point in the case, to determine these issues on the merits.

IT IS ORDERED that the re-remand order of the Appeals Council issued in this case is vacated.

IT IS FURTHER ORDERED that this action is remanded to the Appeals Council with instructions to either reverse, affirm or modify the decision of the Administrative Law Judge within 45 days from the date of this order.


source: Caselaw Access Project

author: NORGLE, District Judge.

license: Public Domain

text:
    Kris ROBERTS, as Guardian and Next Friend of Joshua Roberts, a Minor, Plaintiff, v. Dr. V.K. PATEL, Dr. Johnson Dy, Dr. Malawka, Dr. J.M. Cava, Dr. Robert Lee and Christ Hospital, Defendants.
    No. 84 C 3926.
    United States District Court, N.D. Illinois, E.D.
    Sept. 27, 1985.

      William C. Murphy and Robert M. Foote, Murphy, Hupp, Foote & Mielke, Aurora, Ill., for plaintiff.
    Rudolf G. Schade, Jr., Cassidy, Schade & Gloor, Timothy A. Weaver, Pretzel & Stouffer, Howard T. Brinton and Jack Sil-havy, Wildman, Harrold, Allen & Dixon, Chicago, Ill., for defendants.
   ORDER

NORGLE, District Judge.

Plaintiff, Kris Roberts, as guardian and next friend of Joshua Roberts (“JOSHUA”) brings this malpractice action on behalf of Joshua against Christ Hospital and the above individually-named physicians, surgeons and anesthesiologists for injuries to Joshua arising out of his delivery. The complaint is in six counts, claiming malpractice, res ipsa loquitur, and informed consent actions against the Hospital and against the individually-named physicians and surgeons. The Hospital and the physicians have moved under Fed.R.Civ.P. 12(b)(6) to dismiss the plaintiff’s claim with respect to the informed consent counts only. For the reasons stated below, defendants’ motions are denied.

Plaintiff’s informed consent count alleges that Joshua’s natural mother, who is not a party to this suit, was told by Dr. Cava and others while she was in labor with Joshua, that a caesarean section should not be performed, and further, that the natural mother’s labor should be temporarily halted by use of alcohol and other drugs. Plaintiff alleges that Joshua’s mother then questioned the doctors about the possible risks, dangers, and complications of the prescribed course of treatment and about the propriety of such treatment. Plaintiff’s complaint states that the doctors informed Joshua’s mother that the recommended procedure was necessary and proper and would result in the delivery of a healthy baby. The complaint also states that Joshua’s natural mother agreed to the procedure, and as a direct and proximate cause of the treatment, Joshua suffered permanent spastic quadriplegia. Plaintiff further alleges the doctors should have known quadriplegia to be a reasonably likely consequence of the prescribed treatment and should have informed her of that risk. Had she been informed of the likelihood of the complication, she would have not consented to the course of treatment.

As the court reads them, defendants’ motions to dismiss raise two contentions. First, Defendants argue that their motions to dismiss should be granted because Illinois does not recognize the right of a parent to consent to medical treatment on behalf of an unborn fetus, in útero. This court is at a loss to say who may consent to the treatment of an unborn fetus if not the unborn fetus’ parent. Illinois law clearly recognizes the right of a parent to consent to treatment on behalf of a minor child. See Ill.Rev.Stat. ch. 111, § 4502 (1983); Skaggs v. Industrial Commission, 371 Ill. 535, 21 N.E.2d 731 (1939). See generally Brown & Truitt, Rights of Minors to Medical Treatment, 28 De Paul L.Rev. 289 (1979). We hold that a parent may properly give consent for treatment on behalf of her unborn fetus.

The second basis for dismissal raised by the defendants is that if a right to informed consent exists at all, the right belongs uniquely to the child’s natural mother. Plaintiff, as child’s adopted mother and legal guardian, may not maintain a malpractice action based on informed consent against the defendants.

The doctrine of informed consent requires that prior to administering medical treatment, a physician or surgeon must inform the patient of the “diagnosis, the general nature of the contemplated procedure, the risks involved, the prospects of success, the prognosis if the procedure is not performed and alternative medical treatment.” 2 D. Louisell & H. Williams, Medical Malpractice H 22.01 to 22.65 (1985); Magana v. Elie, 108 Ill.App.3d 1028, 64 Ill.Dec. 511, 439 N.E.2d 1319 (1982). The purpose behind the doctrine is to afford the patient the ability to make an informed, intelligent decision regarding medical treatment he is to receive. Miceikis v. Field, 37 Ill.App.3d 763, 347 N.E.2d 320, 324 (1976); see Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Halley v. Birbiglia, 390 Mass. 540, 458 N.E.2d 710, 714 (1983). The malpractice arises out of a failure to disclose or a failure to provide sufficient disclosure of material risks of a procedure that a “reasonable medical practitioner would have disclosed under the same or similar circumstances.” Green v. Hussey, 127 Ill.App.2d 174, 184, 262 N.E.2d 156, 161 (1970); Maga-na, 108 Ill.App.3d at 1031-32, 64 Ill.Dec. at 514, 439 N.E.2d at 1322.

The elements of the informed consent action parallel those of an ordinary malpractice claim. The plaintiff must plead and ultimately prove that (1) a physician has a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose the patient consented to treatment he otherwise would not have consented to; and (4) the proposed treatment caused injury to plaintiff. Nichelson v. Curtis, 117 Ill. App.3d 100, 72 Ill.Dec. 630, 632, 452 N.E.2d 883, 885 (1983). Expert medical testimony is required in establishing the proper duty of disclosure. Taber v. Riordan, 83 Ill.App.3d 900, 38 Ill.Dec. 745, 403 N.E.2d 1349 (1980); Green, 127 Ill.App.2d at 184, 262 N.E.2d at 161.

Plaintiff has alleged each of these elements and defendants, in effect, contest only one element. Defendants argue that the only duty of disclosure owing was to Joshua’s natural mother, who is not a party to this action. Because no duty is owed to Joshua’s guardian and adopted mother, there can be no cause of action based on informed consent. We must reject this argument.

Illinois has expressed its concern for the protection of an unborn fetus, in útero, from actions which would harm the fetus in many contexts. Illinois has made it a crime to cause the death of a fetus while the mother is injured during pregnancy if the fetus is capable of sustained life outside the womb at the time of its death. Ill.Rev.Stat. ch. 38, §§ 9-1.1(a) & (c). It has expressed its strong public policy to protect an unborn child from the moment of conception, id. at §§ 81-11, 81-21, and has actively sought to regulate abortions within constitutionally permissible parameters. See Charles v. Daley, 749 F.2d 452 (7th Cir.1984) (interpreting Illinois Abortion statute). It has enacted legislation preventing a terminally-ill pregnant woman, during the course of her pregnancy, from terminating life sustaining treatment until the child is born. Ill.Rev.Stat. ch. IIOV2, § 703(c).

Additionally, Illinois tort law has recognized the right to bring an action based on injuries sustained to the fetus. See Renslow v. Mennonite Hospital, 67 ILL.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977). In Renslow, the Illinois Supreme Court surveyed the caselaw on whether a plaintiff may recover for prenatal injuries. The court concluded that the retreat from the common law rule barring recovery to an infant because the infant has no “independent legal significance,” expressed in Dietrich v. Inhabitants of Northampton, 138 Mass. 14, 52 Am.Rep. 242 (1884) and Allaire v. St. Luke’s Hospital, 184 Ill. 359, 56 N.E. 638 (1900), “was perhaps the most rapid reversal of a common law tradition.” Renslow, 67 Ill.2d at 351, 10 Ill.Dec. at 486, 367 N.E.2d at 1252. The Illinois Supreme Court overruled Allaire in Amann v. Faidy, 415 Ill. 422, 432, 114 N.E.2d 412, 421 (1953), holding that right of action for the wrongful death of a viable fetus injured, in útero, exists if the child was born alive and subsequently died. See also Rodriquez v. Patti, 415 Ill. 496, 114 N.E.2d 721 (1953). The court extended the right to recover damages for injuries suffered, in útero, but where the fetus was thereafter born dead. Chrisafogeorgis v. Brandenberg, 55 Ill.2d 368, 304 N.E.2d 88 (1973). The Ren-slow Court went on to reject the viability limitation because it found viability to be an inherently imprecise and unsatisfactory criterion to determine the extent of liability; it found viability to be an uncertain limitation which often precluded recovery in the most meritorious claims. Renslow, 67 Ill.2d at 352, 10 Ill.Dec. at 486-87, 367 N.E.2d at 1252-53. The court then held that a fetus may recover for injuries suffered as a result of a wrong occuring prior to conception. Id. “We believe that there is a right to be born free from prenatal injuries caused by a breach of duty owed to the child’s mother.” Id. 67 Ill.2d at 357, 10 Ill.Dec. at 489, 367 N.E.2d at 1255.

In light of the strong Illinois policy favoring protection of a fetus, and in light of Illinois’ recognition of a protectable interest in the fetus in ordinary malpractice claims, even prior to conception, we hold that Joshua’s mother’s physicians owed a duty of informed disclosure not only to Joshua’s mother, but to Joshua as well; in this situation the physician had two patients. The creation of a duty is “an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” Renslow, 67 Ill.2d at 356, 10 Ill.Dec. at 488, 367 N.E.2d at 1254, (quoting Prosser, Torts, sec. 53, at 325-26 (4th ed. 1971)). If a physician owes a duty to a parent and unborn child for injuries to the child prior to its conception, then a physician certainly owes a duty to an unborn fetus, who is alleged to have sustained quadriplegia, moments before its birth.

The injury involved in this case was sustained by the infant Joshua. The risks coincident with the prescribed treatment flowed primarily to the infant. The physician must have a duty to disclose to his patient risks not only to the mother but to the child as well. In making an informed decision, Joshua’s natural mother was concerned not only about risk of the treatment to her own safety but also to her unborn child. Indeed, the risks to her child may have been paramount in her concerns. The complaint states that only upon being assured of delivery of a “healthy baby” did Joshua’s natural mother agree to such procedures. In such situations the failure to inform the natural mother of risks inherent in a procedure subjected both the mother and her unborn child to unwarranted risks of unwanted treatment. It is merely fortuitous that only one of the physician’s patients was harmed. Both Joshua and Joshua’s mother may bring an action based on informed consent for failure of the defendant to obtain from Joshua’s mother an informed consent. “As in any other tort case, the defendant must bear the burden for injuries resulting from its own negligence. [To hold otherwise] would in effect immunize from liability those in the medical field from providing inadequate guidance to persons who would choose [alternative treatment].” Robak v. United States, 658 F.2d 471, 476 (7th Cir.1981). Because Joshua may pursue this cause of action, Joshua’s legal guardian may pursue it on his behalf. Defendants’ motions to dismiss are denied.

IT IS SO ORDERED.

      . If the parent could not give consent on behalf of the child, any non-emergency surgical procedures performed would constitute a battery upon the infant, subjecting physicians such as defendants to intentional tortious liability. Lojuk v. Quandt, 706 F.2d 1456, 1460 (7th Cir.1983) (malpractice and battery actions are both possible in operations performed without consent).

      . This district has permitted a child to bring an action based on informed consent against physicians for treatment performed on her mother while the mother was carrying her. Wetherill v. University of Chicago, 570 F.Supp. 1124 (N.D.Ill.1983). The plaintiffs, who were exposed in ute-ro to defects caused by DES administered to their mother, brought an informed consent action claiming that their mothers were not informed of the serious potential risks of the drug on their daughters. Cf. Mink v. University of Chicago, 460 F.Supp. 713, 716-17 (N.D.Ill.1978).


author: BLUMENFELD, Senior District Judge.

text:
    AL-CHARLES, INC. v. Stephen B. HEINTZ, Commissioner, State of Connecticut, Department of Income Maintenance.
    Civ. No. H-85-293 (MJB).
    United States District Court, D. Connecticut.
    Sept. 30, 1985.

      David M. Lesser, Clendenen & Lesser, New Haven, Conn., Robert Erwin Silver, Newton Centre, Mass., for plaintiff.
    Arnold Menchel, Asst. Atty. Gen., Hartford, Conn., for defendant.
   RULING ON MOTION TO DISMISS

BLUMENFELD, Senior District Judge.

Plaintiff is a Connecticut corporation doing business as an operator of a skilled nursing facility, which at all relevant times has had a contract with the defendant Commissioner of the Department of Income Maintenance of the State of Connecticut. Plaintiff has brought this action pursuant to 42 U.S.C. § 1983 alleging that the defendant has violated its rights under the due process and equal protection clauses of the fourteenth amendment to the United States Constitution as well as under Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. The defendant has moved to dismiss the complaint pursuant to Fed.R. Civ.P. 12(b)(1) and 12(b)(6). Defendant argues for dismissal on various grounds, including that the relief sought is barred by the eleventh amendment to the United States Constitution, and that the plaintiff does not have a federally protectable property interest in the rates of reimbursement that a state uses to pay operators of skilled nursing facilities.

Before addressing the legal questions raised by the motion to dismiss, it is helpful to review the factual background of this lawsuit. Although these facts were not put forth by the plaintiff in the pleadings, and are before the court on the basis of the defendant’s memorandum and arguments presented by both sides in open court on August 19, 1985, this background is useful for putting the issues in perspective.

On or about October 26, 1982, Albert Lizzi, the owner of the plaintiff corporation, who is also the assistant administrator of the nursing home, was convicted of Medicaid fraud. On or about July 28, 1982 and October 26, 1982, Damon Lizzi, the son of the owner of the nursing home, who was also the administrator of the facility, was convicted on two counts, one for Medicaid fraud and one for larceny involving theft of patients’ personal funds.

Pursuant to Conn.Gen.Stat. § 17-83k, the salaries of the Lizzis were disallowed following their Medicaid fraud convictions at the time said costs for the period following their convictions were reported in the ordinary course; i.e., in the cost report for the cost year ended September 30, 1983, thereby affecting the July 1, 1984 rate.

The rates paid to the nursing homes during the period October 26, 1982 through July 1, 1984 included payments for the Lizzis’ salaries because those rates were based upon costs reported for periods prior to the convictions and resulting suspensions.

As a result of his convictions for Medicaid fraud and larceny of patients’ personal funds, action has been taken against Damon Lizzi’s license as an administrator by the Connecticut Department of Health Services.

The plaintiff hired an unconvicted licensed administrator on or about March 18, 1985. The cost of paying the unconvicted administrator will be included in the cost report for the year ended September 30, 1985 and will be reflected in the July 1, 1986 rate.

The Lizzis accepted the payments for the period between October 26, 1982 through July 1, 1984 which, due to the difference between cost years and rate years, included their salaries. As a result of the way the defendant’s cost-related prospective rate system works the Lizzis must pay an un-convicted administrator for the period March 18, 1985 through July 1, 1986 before those costs are included in their rates. This time lag is due to the difference in cost years and rate years as used by the defendant in determining reimbursement rates pursuant to Conn.Gen.Stat. § 17-314.

In this action, the plaintiff is challenging in general terms the Connecticut cost-related reimbursement system and more specifically any and all of the numerous specific rate disallowances provided pursuant to state statutes and regulations, including the disallowance of the salaries of the owner and his son, who was the administrator of the nursing home, following their convictions for Medicaid fraud. The case is now before the court on defendant’s motion to dismiss.

It is well settled that for purposes of a motion to dismiss the well pleaded material allegations of the complaint are taken as true. 2A Moore’s Federal Practice ¶ 12.07[2.-5] (2d ed. 1985). However, it is for the court to decide if the allegations of fact in the complaint rise as a matter of law to the level of a cognizable claim for relief. Thus, any conclusory allegation in a complaint that a plaintiff has been denied some right in violation of federal law is subject to review by the court on a motion to dismiss. Id. If mere conclusory allegations of the denial of rights under the Constitution and laws of the United States were taken as true, the elaborate rules and procedures for bringing a motion to dismiss would be pointless. Accordingly, paragraphs 1 through 27 of the complaint which are primarily factual allegations, and which are the alleged factual basis for plaintiff’s entitlement to relief, will be taken as true for purposes of ruling on this motion, to the extent that those paragraphs contain allegations of fact rather than conclusions of law. Counts I through IV of the complaint which allege the legal basis for relief will be tested against the defendant’s arguments that either those counts fail to state claims upon which relief can be granted, or that this court lacks subject matter jurisdiction over the cause of action alleged.

The essential nature of the plaintiff’s claim is that the defendant, in administering the Medical Assistance Program (known as “Medicaid”) under Conn.Gen. Stat. § 17-314 (pursuant to which the defendant calculates rates to be paid to nursing home providers such as the plaintiff as reimbursement for their care for Medicaid beneficiaries), has determined the rates of reimbursement to the plaintiff in a manner which is violative of the due process and equal protection clauses of the fourteenth amendment, and Title XIX of the Social Security Act. Plaintiff contends that such violations are causing or have caused the plaintiff to suffer irreparable harm. Taking each of the plaintiff’s alleged bases for relief in Counts I through IV of the complaint, however, it is clear that each count either fails to state a claim upon which relief can be granted or that this court lacks subject matter jurisdiction over the claim.

Count I

In Count I of the complaint the plaintiff alleges that the defendant’s contracts with the plaintiff, its state plan, its regulations and representations, and Title XIX of the Social Security Act, singly and collectively, create a property interest for plaintiff in plaintiffs rates (referring to the rates of reimbursement determined by the state pursuant to Conn.Gen.Stat. § 17-314). Plaintiff contends that it has been deprived of this property interest by defendant without due process of law.

There are a number of grounds upon which Count I of the plaintiffs complaint must be dismissed. First, it has been specifically held that a Medicaid provider, such as the plaintiff, has no property interest in prospective reimbursement payments, nor does the provider have a pro-tectable interest in a particular rate of reimbursement. See Grossman v. Axelrod, 646 F.2d 768, 770-71 (2d Cir.1981). Although the Grossman decision was based on a finding that under the law of New York there was no protectable property right, plaintiff here has failed to point out any authority under Connecticut law which would suggest that Connecticut law on this point is any different from New York law.

Even if the plaintiff did possess a property interest in the Title XIX provider reimbursement rates, the plaintiff was entitled to request an administrative hearing, with a subsequent right of appeal to the Connecticut Superior Court, if the plaintiff was aggrieved by an alleged failure of the defendant to hold certain audit and exit conferences or any other claim of aggrievement based on an alleged failure of the defendant. Such hearing, with the right to appeal, is provided for in Connecticut’s Uniform Administrative Procedure Act (UAPA), Conn.Gen.Stat. § 4-166 et seq. The plaintiff here makes no allegation whatsoever that it has attempted to avail itself of its right to a hearing on an issue of aggrievement under the UAPA.

The law of the Second Circuit, and of this district in particular, is clear that if a plaintiff chooses not to take part in a state provided administrative and judicial review procedure whose purpose is to afford him due process, he cannot later claim he was denied due process by the state. See Aronson v. Hall, 707 F.2d 693 (2d Cir.1983). The words of Judge Clarie of this court, in a recent case in which a long-term care facility instituted an action against the defendant here challenging the Connecticut reimbursement system for skilled nursing facilities as violation of state law and the federal Medicaid Act, are just as applicable here as they were in that case:

Congress has shown an intent to dissuade Medicaid providers from bringing suits for monetary relief in federal court. Connecticut provides an administrative appeal process of which the plaintiff has not availed itself, despite the plaintiff’s allegation that it has suffered under the state’s reimbursement rate method without remedy for the years 1979-1982 inclusive. Section 17-314 of the Connecticut General Statutes provides the statutory authorization for the Commissioner of the DIM to set rates for long-term care facilities such as the plaintiff herein. Regulations promulgated pursuant to the Commissioner’s authority to set reimbursement rates provided an appeal process for persons aggrieved by the rates determined pursuant to §§ 17-311 — 17-314 inclusive. Regulations of Connecticut State Agencies § 17-311-101 et seq., Part IV, “Relating to Rules of Practice for the Arbitration of Items of Aggrievement on Rates Determined Pursuant to § 17-311 through § 17-314 as Amended by P.A. 77-574.”
Arden House has shown no evidence that it has resorted to the available state remedial process.... [H]ad the plaintiff pursued the state remedies available to it, the issues the plaintiff now brings to the district court could have been properly considered and resolved. Delaware Convalescent Center, Inc. v. Beal [488 Pa. 292], 412 A.2d 514, 515 (1980). The plaintiff has prematurely brought its claims before this Court.

Arden House, Inc. v. Heintz, 612 F.Supp. 81, 85-86 (Ruling on Defendant’s Motion to Dismiss, D.Conn.1985). In accordance with Judge Clarie’s ruling in the Arden House case, even if the plaintiff here did have a protectable property interest which could not be deprived without due process of law, plaintiffs failure to show that it has resorted to the available state remedial process renders its due process claim before this court premature.

A third reason that Count I must be dismissed is that to the extent it seeks monetary relief for any past alleged violations of due process, such retroactive monetary relief against the state is barred by the eleventh amendment. See Florida Department of Health v. Florida Nursing Home Association, 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Accordingly, Count I of the complaint must be dismissed.

Count II

Count II of plaintiffs complaint relates solely to the rates that are set by the state which the plaintiff may charge private, self-pay patients. The issue of rates for “self-pay” patients, however, is one that arises solely under state law. Therefore, no matter what plaintiffs grievance is under this count, a federal district court is without jurisdiction to hear it. Such a claim can no longer be entertained under the doctrine of pendent jurisdiction against a state defendant and is barred by the eleventh amendment. To the extent that Count II may be trying to seek some form of retroactive monetary relief, it is barred by the eleventh amendment under the doctrine of sovereign immunity as enunciated in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). To the extent the second count of the complaint is seeking prospective injunctive relief to order state officials to conform their conduct to state law, it is also barred by the eleventh amendment under the doctrine of sovereign immunity as more recently enunciated by the Supreme Court in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 911-20, 79 L.Ed.2d 67 (1984). Accordingly, Count II of the complaint must be dismissed.

Count III

In paragraph 32(a) of the complaint the plaintiff claims that the state defendant cannot “permissibly deny plaintiff reimbursement for costs expended [as salaries] for its administrators’ participation in the Medicaid program prior to December 10, 1982.” (The defendant notes in its memorandum that December 10, 1982 was the day following the plaintiff’s administrators’ sentencing for conviction for Medicare and Medicaid fraud.) It is further alleged, at paragraph 32(b), that “pursuant to defendant’s ... standards, regulations, and representations ... defendant is barred from denying reimbursement to plaintiff for services which its administrators performed during said cost year.”

The allegations of paragraphs 32(a) and (b) refer to past rate years which have no impact upon the current year’s rate. As such, they could only be relevant to a claim for retroactive relief. Any such retroactive relief against the state, however, is barred by the eleventh amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

Plaintiff further alleges in Count III, at paragraph 32(c), that “any rate reductions ... [employed by the defendant as] the means of barring [by disallowing their salary costs] said administrators’ participation in the program after December 10, 1982 violates the Social Security Act, 42 U.S.C. Section 1396a, et seq., and regulations promulgated thereafter.” This is a conclusory allegation of law and plaintiff has not set forth sufficient facts to sustain it. Indeed, Title XIX of the Social Security Act requires that certain rates be reduced or that certain costs be disallowed. Specifically, 42 U.S.C. § 1396a(a)(39), 42 U.S.C. § 1320a-7(a), combined with their state law counterpart Conn.Gen.Stat. § 17-83k would bar reimbursement by the state for costs incurred by the plaintiff for the salaries of administrators convicted of Medicaid fraud as plaintiff’s administrators were here. “No vendor shall be eligible for reimbursement for any goods provided or services performed by a person convicted of a crime involving fraud in such programs.” § 17-83k(b). Since the disallowance of those administrators’ salaries could not be reflected as a reduction in rates until after the cost year in which the plaintiff actually paid those salaries, rate reductions employed by the defendants as a means of disallowing the salary costs of plaintiffs administrators who had been convicted of welfare fraud in late 1982 and sentenced on December 9, 1982, would be mandated by federal law as opposed to being in violation of it.

In paragraphs 32(d) and 34 of Count III the plaintiff alleges that it has been singled out by the defendant for discriminatory treatment with respect to the defendant’s alleged failure to provide the plaintiff with certain audit and exit confer-enees and with regard to a reduction on the plaintiffs reimbursement rates, all in violation of the due process and equal protection clauses of the fourteenth amendment. Plaintiffs due process claim was also alleged in Count I. It was rejected in the above discussion with respect to Count I and that discussion is equally applicable here. Plaintiff’s allegation that it has been singled out in an arbitrary manner in violation of the equal protection clause also fails to state a claim upon which relief can be granted. First, plaintiffs allegation that it was “singled out” is a mere conclusory allegation not otherwise addressed or substantiated by the plaintiff by additional allegations of fact. Second, the equal protection clause does not reject the government’s ability to classify or “draw lines” in the creation and application of laws. Rather, it guarantees that those classifications will not be based on impermissible criteria. If the government classification relates to a proper governmental purpose, then the classification will be upheld. The equal protection guarantee has nothing to do with the determination of whether a specific individual is properly placed within a classification. Rather, equal protection tests whether the classification is properly drawn. See generally, Nowak, Rotunda & Young, Constitutional Law Ch. 16, at 585 et seq. (2d ed. 1983). Plaintiff’s bare allegation that it has been singled out for arbitrary treatment does not rise to the level of a cognizable equal protection claim. Johnson v. Wells, 566 F.2d 1016 (5th Cir.1978) (dismissal upheld since mere statement that a government agency had acted arbitrarily would not be taken as true). This is especially so in light of the statutory basis for reducing plaintiff’s reimbursement rates to disallow reimbursement for salaries of plaintiff’s administrators who were convicted of Medicaid fraud.

The only other allegation in Count III which must be addressed is in paragraph 33 where plaintiff alleges that “[i]n paying its administrators’ salaries during said cost years, plaintiff relied on its entitlement to reimbursement by defendant.” To the extent that the plaintiff is alleging here that the Title XIX Medicaid program creates an entitlement program for providers of medical services, as distinguished from recipients of medical services, such a claim has no merit. That same argument was addressed and rejected in Count I above. At most, the plaintiff may have a contractual right as against the state, which arises under' state and not federal law, consideration of which is barred here by the Supreme Court’s decision in Pennhurst State School and Hospital v. Halderman.

In light of the foregoing, Count III is dismissed.

Count IV

The claim asserted in paragraphs 35 and 38 of Count IV, that the defendant’s denial of certain reimbursement was in violation of the Social Security Act, is essentially the same claim that was made in paragraph 32(c), and is rejected for the reasons already given. To the extent that retroactive monetary relief is being sought in paragraphs 36 and 37, such relief is barred by the eleventh amendment. Finally, to the extent that the claim rests on the assertion that the plaintiff has some entitlement under the Medicaid program, is an intended beneficiary of the Medicaid program, or has some federally protectable property interest in reimbursement rates determined by the state under the Medicaid program, the claim is insupportable. Arden House, Inc. v. Heintz, 612 F.Supp. 81, (Ruling on Defendant’s Motion to Dismiss, D.Conn. 1985).

Conclusion

Having examined the factual allegations of the plaintiff’s complaint, taking them as true, and having reviewed the plaintiff’s allegations of violations of its rights under the Constitution and laws of the United States, it is apparent that the various counts of the plaintiff’s complaint must be dismissed on several alternative grounds, including their failure to state a claim upon which relief may be granted and the lack of subject matter jurisdiction in this court over the claims alleged or to award the type of relief sought. The defendant’s motion to dismiss is granted.

SO ORDERED.

      . In accordance with the defendant's cost-related prospective rate system, the defendant pays long-term care facilities a per diem rate during a "rate year" which commences on July 1 of each year and ends on the following June 30. The per diem rate for the "rate year” derives from cost information with respect to a facility's preceding “cost year,” which commences on October 1 of each year and ends on the following September 30. Thus there is a nine-month lag from the time that a facility’s historical costs will be reflected in its rates of reimbursement. To illustrate, a facility's per diem rates for its rate year July 1, 1982 — June 30, 1983 would be based on cost information for the cost year October 1, 1980 — September 30, 1981.

      . An eleventh amendment defense is in the nature of a jurisdictional bar. Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63 (1974).

      . 42 U.S.C. § 1396a(a)(39) provides that the State plan must,
      provide that the State agency shall bar any specified person from participation in the program under the State plan for the period specified by the Secretary, when required by him to do so pursuant to section 1320a-7 of this title, and provide that no payment may be made under the plan with respect to any item or service furnished by such person during such period.

      (Emphasis supplied).
      42 U.S.C. § 1320a-7(a) provides in relevant part:
      (a) Whenever the Secretary determines that a physician or other individual has been convicted (on or after October 25, 1977, or within such period prior to that date as the Secretary shall specify in regulations) of a criminal offense related to such individual’s participation in the delivery of medical care or services under subchapter XVIII, XIX, or XX of this chapter, the Secretary—
      (1) shall bar from participation in the program under subchapter XVIII of this chapter each such individual otherwise eligible to participate in such program;
      (2)(A) shall promptly notify each appropriate State agency administering or supervising the administration of a State plan approved under subchapter XIX of this chapter of the fact and circumstances of such determination, and ... require each such agency to bar such individual from participation in such plan for such period as he shall specify, which in the case of an individual specified in paragraph (1) shall be the period established pursuant to paragraph (1);_
      Further, 42 U.S.C. § 1320a-7(e) provides:
      (e) Any person or entity who is the subject of an adverse determination made by the Secretary under subsection (a), (b), or (c) of this section shall be entitled to reasonable notice and opportunity for a hearing thereon by the Secretary to the same extent as is provided in section 405(b) of this title, and to judicial review of the Secretary’s final decision after such hearing as is provided in section 405(g) of this title.
      Thus it is clear that pursuant to federal law no payment may be made by the state for certain costs incurred by a nursing home if those costs are for items or services furnished by an individual barred by the Secretary of Health and Human Services for conviction of a criminal offense related to the individual's participation in, inter alia, the Medicaid program.
      Conn.Gen.Stat. § 17-83k provides as follows: (a) No vendor of goods or services performed for or sold to any beneficiary under this chapter nor any vendor who provides services to recipients under Title XIX of the Social Security Act, as amended, shall, (1) with intent to defraud, present for payment any false claim for goods or services performed; (2) accept payment for goods or services performed, which exceeds either the amounts due for goods or services performed, or the amounts authorized by law for the cost of such goods or services; (3) solicit to perform services for or sell goods to any such beneficiary, knowing that such beneficiary is not in need of such goods or services; (4) sell goods to or perform services for any such beneficiary without prior authorization by the department of income maintenance, when prior authorization is required by said department for the buying of such goods or the performance of any service; or (5) accept from any person or source other than the state an additional compensation in excess of the amount authorized by law. For the purposes of this section "vendor” means any person acting on his own behalf or on behalf of an entity and any entity furnishing goods or services.
      (b) Any vendor found in violation of subsection (a) of this section shall be subject to the penalties for larceny under sections 53a-121 to 53a-125, inclusive, which penalty shall depend upon the amount of money involved. Any such vendor shall also be subject to forfeiture or suspension of any franchise or license held by him from the state in accordance with this subsection, after hearing in the manner provided for in sections 4-177 to 4-180, inclusive. Any vendor convicted of larceny resulting from a violation of subsection (a) of this section shall have such license or franchise suspended for one month for the first such conviction, six months for the second such conviction, and one year for the third such conviction. The vendor shall have such license or franchise revoked for a fourth conviction. Any vendor who is convicted in any state or federal court of a crime involving fraud in the Medicare program or Medicaid program or aid to families with dependent children program or state supplement to the Federal Supplemental Security Income Program or any federal or state energy assistance program or general assistance program shall be terminated from such programs, effective upon conviction, except that the commissioner of income maintenance may delay termination for a period he deems sufficient to protect the health and well-being of beneficiaries receiving services from such vendor. No vendor shall be eligible for reimbursement for any goods provided or services performed by a person convicted of a crime involving fraud in such programs. The convicted person may request a hearing concerning such ineligibility for reimbursement pursuant to sections 4-177 to 4-180, inclusive, provided such request is filed in writing with the commissioner of income maintenance within ten days of the date of written notice by the commissioner to the person of such ineligibility. The commissioner shall give notice of such ineligibility to such vendors by means of publication in the Connecticut Law Journal following the expiration of said ten-day hearing request period, if no timely request has been filed, or following the decision on the hearing. The commissioner of income maintenance may take such steps as he considers necessary to inform the public of the conviction and ineligibility for reimbursement. No vendor or person so terminated or denied reimbursement shall be readmitted to or be eligible for reimbursement in such programs for at least three years from the date of termination or conviction. Any such application for readmission to the programs and eligibility for reimbursement shall be subject to the provision of sections 4-177 to 4-180, inclusive. In any such proceeding the burden of proof shall be on the vendor or person seeking such readmission. Any sums paid in violation of subsection (a) of this section may be recovered in an action brought by the state against such person.
      (c)For the purpose of determining compliance with subsection (b) all vendors shall notify the commissioner within thirty days after the date of employment or conviction, whichever is later, of the identity, interest and extent of services performed by any person convicted of a crime involving fraud in the Medicare program or Medicaid program or aid to families with dependent children program or state supplement to the Federal Supplemental Security Income Program or any federal or state energy assistance program or general assistance program. Prior to the commissioner's acceptance of a provider agreement or at any time upon written request by the commissioner, the vendor shall furnish the commissioner with the identity of any person convicted of a crime involving fraud in such programs who has an ownership or control interest in the vendor or who is an agent or managing employee. The commissioner shall terminate, refuse to enter into or renew an agreement with a vendor, except a vendor providing room and board and services pursuant to section 17-314, if such convicted person has such interest or is such agent or employee. In the case of a vendor providing room and board and services pursuant to section 17-314, the commissioner may terminate, refuse to enter into or renew an agreement after consideration of any adverse impact on beneficiaries of such termination or refusal.
      (d) The department of income maintenance shall distribute to all vendors who are providers in the medical assistance program a copy of the rules, regulations, standards and laws governing the program. The commissioner of income maintenance shall adopt by regulation in the manner provided for in sections 4-166 to 4-176, inclusive, administrative sanctions against providers in the Medicare program or Medicaid program or aid to families with dependent children program or state supplement to the Federal Supplemental Security Income Program including suspension from the program, for any violations of the rules, regulations, standards or law. The commissioner may adopt regulations in accordance with the provisions of chapter 54 to provide for the withholding of payments currently due in order to offset money previously obtained as the result of error or fraud. The department shall notify the proper professional society and licensing agency of any violations of this section.
      (e) Notwithstanding the provisions of section 54-193, no person shall be prosecuted under the provisions of this section, except within five years next after the offense has been committed.


author: ROSENBLATT, District Judge.

text:
    PATHFINDER MINES CORPORATION, Plaintiff, v. William CLARK, Secretary of the U.S. Department of Interior, and the United States of America, Defendants, and Arizona Wildlife Federation and National Wildlife Federation, Defendants/Intervenors.
    No. Civ 84-105 PHX PGR.
    United States District Court, D. Arizona, Division Four.
    Oct. 1, 1985.

      John C. Lacy, Tucson, Ariz., for plaintiff.
    John R. Mayfield, Asst. U.S. Atty., Phoenix, Ariz., for defendants.
    Kimberly J. Graber, Phoenix, Ariz., for defendants/intervenors.

       Donald P. Hodel, William Clark's successor as Secretary of the Interior, has been substituted as a party pursuant to F.R.Civ.P. 25(d)(1).

   MEMORANDUM OPINION

ROSENBLATT, District Judge.

The plaintiff in this action, Pathfinder Mines Corporation, is a mining company that has filed 22 mining claims within the boundaries of the Grand Canyon National Game Preserve (hereinafter Game Preserve). Those mining claims were declared void ab initio by the Chief of the Branch of Lands and Mineral Operations, Arizona Office of the Bureau of Land Management, Department of Interior. That decision was affirmed by the Interior Board of Land Appeals of the Department of the Interior (hereinafter IBLA). That body replaced the Director of the Bureau of Land Management (BLM) and the Secretary of the Interior as the appellate administrative body that • reviews mineral locations and patent applications.

The present action is one for review of that decision by the IBLA. A decision of the IBLA body is reviewed by this Court under the standards of the Administrative Procedure Act, 5 U.S.C. §§ 701-706. It comes before this Court on cross motions for summary judgment. In addition to motions from the plaintiff mining company and the defendant Department of the Interior, there is also a motion for summary judgment by the defendants/intervenors, the Arizona Wildlife Federation and the National Wildlife Federation, seeking to have the IBLA decision affirmed. All parties believe that there are no material issues of fact and that this matter may be resolved as a matter of law.

Resolution of this matter requires this Court to construe and evaluate federal legislation and presidential proclamations from near the turn of the century (1893-1906) in order to divine the intent of Congress and President Theodore Roosevelt with respect to mineral entry within the Game Preserve. This is no easy task. The voluminous legislative history that would be generated on legislation of this kind today was not prevalent in that period. The only factual questions herein involve the facts and circumstances surrounding the passage of the legislation and the extent to which those influence this Court’s construction of the statutes.

Decision of the IBLA

The IBLA affirmed the decision of the Chief, Branch of Lands and Mineral Operations that the plaintiffs 22 mining claims were void ab initio because the land within the Preserve has been withdrawn from mineral entry. 70 IBLA 264 (1983). It is the position of the Department of the Interior and the IBLA that the creation of the Game Preserve withdrew the lands by implication because mineral entry under the General Mining Laws of 1872 is inconsistent with the purpose of the Preserve.

The IBLA relied primarily on opinions previously issued by the Department of the Interior and the Attorney General and the legislative history of the acts and proclamations. No court has ever considered whether the Game Preserve is closed to mineral entry under the General Mining Laws of 1872.

Standard of Review

Section 706 of the Administrative Procedure Act, 5 U.S.C. § 706, provides the standard of review.

§ 706. Scope of review To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning of applicability of the terms of an agency action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and 557 of this title or otherwise reviewed on the record of an agency hearing provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.

It is the plaintiffs position that the decision of the IBLA is not in accordance with law and should be set aside under § 706 (2)(A).

The Supreme Court has made the following observation about the court’s role in this type of review:

When faced with a problem of statutory construction, this Court shows great deference to the interpretation given the statute by the officers or agency charged with it administration. “To sustain the Commission’s application of this statutory term, we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in judicial proceedings.” Unemployment Comm’n of Territory of Alaska v. Aragon, 329 U.S. 143, 153, 67 S.Ct. 245, 250, 91 L.Ed. 136. See also e.g., Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301; Universal Battery Co. v. United States, 281 U.S. 580, 583, 50 S.Ct. 422, 74 L.Ed. 1051. “Particularly is this respect due when the administrative practice at stake ‘involves a contemporaneous construction of a statute by the men charged with the responsibility of setting its machinery in motion; of making the parts work efficiently and smoothly while they are yet untried and new.’ ” Power Reactor Development Co. v. International Union of Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924.

Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965).

In cases such as this, in which resolution is controlled by the construction of statutes, the Court should look to the face of the act, the surrounding circumstances, and the legislative history with an eye toward determining what congressional intent was. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 1362, 51 L.Ed.2d 660 (1977). “In determining legislative intent, it is necessary to consider the legislation in its historical context and not as if it was passed today.” Ute Indian Tribe v. State of Utah, 716 F.2d 1298, 1303 (10th Cir.1983) (citing Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978)). At the same time

(i)t has long been recognized that: increasingly as a statute gains in age ... its language is called upon to deal with circumstances utterly uncontemplated at the time of its passage. Here the quest is not properly for the sense originally intended by the statute, ... but rather for the sense which can be quarried out of it in the light of the new situation.... For this reason, generally, a court interpreting a statute should: ‘ask itself not only what the legislation means abstractly, or even on the basis of legislative history, but also what it ought to mean in terms of the needs and goals of our present day society. This approach is required by the insuperable difficulties of readjusting old legislation by the legislative process and by the fact that it is obviously impossible to secure an omniscient legislature.’

West Winds, Inc. v. M.V. Resolute, 720 F.2d 1097, 1101 (9th Cir.1983) (emphasis in original).

Given these standards, this Court must affirm the decision of the IBLA. The decision is a reasonable and well founded analysis of a difficult problem. When this Court finds that the IBLA’s construction is a reasonable one, it must affirm even if the result is not the one that the Court would have reached if the question was first presented to it. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). There is certainly evidence that supports the position of each party to this dispute, but the evidence in support of the plaintiffs position does not warrant rejection of the departmental interpretation. A review of the relevant arguments demonstrates the reasonableness of the IBLA’s approach.

Discussion

The Grand Canyon Forest Reserve was first established by Congress in 1893, (27 Stat. 1064, Proclamation No. 45, February 20, 1893), and enlarged in 1905 (34 Stat. 3009, May 6, 1905) and 1906 (34 Stat. 3223, August 8, 1906). On June 6, 1906, Congress passed the authorization act for the establishment of the Grand Canyon Game Preserve (Public Law No. 339, 34 Stat. 607). That act authorized the President “to designate such areas in the Grand Canyon Forest Reserve as should, in his opinion, be set aside for the protection of game and be recognized as a breeding place therefor.” Id. Pursuant to that authorization, President Theodore Roosevelt issued a proclamation on November 28,1906, setting aside the area of the Grand Canyon Forest Reserve that lay north and west of the Colorado River. (34 Stat. 3263). This area is known as the North Kaibab today.

On June 4, 1897, Congress passed the Organic Act relating to the management of the National Forest Reserves. (30 Stat. 11, 34-36). That act stated that it was not the purpose or intent of the acts establishing forest reservations to include those lands that would be more valuable for the minerals found on them or for agricultural purposes. It said:

No public forest reservation shall be established, except to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of the Act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.

30 Stat. at 35. Therefore, the Act provided that lands could be eliminated from the reserve if it were found by the Secretary of the Interior with the approval of the President that the land was better suited for mining or agricultural purposes than for timber. No portion of the Grand Canyon National Forest Reserve was ever eliminated under that provision.

Relying on the provisions of the statement of intent in the Organic Act, plaintiff argues that mineral lands within the forest reserve were excluded from the forest reserve and therefore were excluded from the Game Preserve. It is clear, however, that the Act did not exclude mineral lands from the reserves, it merely provided a mechanism for eliminating lands from the reserve.

The plaintiff also argues that, absent a specific prohibition or withdrawal, mineral entry is permitted within the Preserve because it was permitted within the forest reserve from which it was created. Two problems exist with this theory. First, it is unclear the extent to which the Organic Act intended to open the forest reserves to mining. Second, the fact that mining may have been permitted within the reserve does not necessarily mean that it continued to be permissible when it became a game preserve. Setting the land aside as a forest reserve implies some limitation on its use. The additional legislative act of setting the land aside as a game preserve implies even greater restrictions on its use.

The Organic Act had a clause that read: Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof: Provided That such persons comply with the rules and regulations covering such forest reservations.

30 Stat. at 36. Historical materials clearly indicate that the terms of the Organic Act were the result of substantial controversy and compromise. E.g., J. Ise, The United States Forest Policy, 125-138 (1920); Pinchot, Mining and the Forest Reserves, 28 Trans. of American Institute of Mining Engineers 339 (1898). Toward that end, it appears that Congress was intentionally obscure to placate the various competing interests at that time. It was a compromise between the conservationists and the western interests, particularly the miners, who felt that they had been shut out of vast portions of western land by the various acts establishing forest reserves. Such a compromise was probably necessary to prevent the forest reserves from being abolished. Cf id. It is clear, however, that unlimited mining under the General Mining Laws of 1872 was not contemplated. Prospecting, locating and developing were limited to the extent that they had to be done in conformity with the rules and regulations covering forest reservations. 30 Stat. at 35; United States v. Weiss, 642 F.2d 296 (9th Cir.1981). Unquestionably, some amount of mining was permitted under the terms of the Act. Unfortunately, this does not resolve the second problem. It does not follow that mining was permitted within the Game Preserve merely because it may have been permissible within the Forest Reserve.

Neither the act authorizing the Game Preserve nor the proclamation creating it makes any specific reference to withdrawal of the lands from mineral entry. Plaintiff argues that the withdrawal must be explicit, and that the absence of such a withdrawal means that mineral entry continued to be permissible. In support of this contention, the plaintiff cites an Interior Department opinion which states that authority to withdraw land Authority to Withdraw Lands Within a Forest Reserve, 35 L.D. 262, 265 (1906).

must be found in some provision of law which grants it or plainly recognizes it either by express terms or by inference so strong as to clearly indicate an intention to grant or recognize it.

The IBLA correctly held, however, that absence of an express provision withdrawing lands from mineral entry is not conclusive. The IBLA noted that a number of decisions make it clear that a statute or order may close land to mineral entry without expressly mentioning the mining laws. 70 IBLA at 269. One such decision is A. Jackson Birdsell, A-255440 (January 31, 1949). That case involved the Custer Park Game Sanctuary which was authorized by an act in 1920 which made no specific reference to the mining laws. Nonetheless, it was held that the establishment of the game sanctuary resulted in the withdrawal of the lands from mineral entry. The language of the act creating the Custer Sanctuary is very similar to that creating the Grand Canyon Game Preserve. Compare 41 Stat. 986 (June 5, 1920) with 34 Stat. 3263 (November 28, 1906). The Custer Sanctuary, later renamed Norbeck Wildlife Preserve, was recognized by Congress as closed to mineral entry when, in 1948, a statute was passed that specifically permitted mining, but with numerous restrictions. Act of June 24, 1941, as amended 16 U.S.C. § 678a (1976). Had the area been open to mining, it would not have been necessary to pass a statute permitting it.

The Birdsell court relied in part on the analysis in a 1941 decision concerning the applicability of mining laws to revested grant lands in Coos Bay, Oregon which were to be managed for permanent timber production. Applicability of Mining Laws to Revested Oregon and California Reconveyed Coos Bay Grant Lands, 57 I.D. 365 (1941) (hereinafter Instructions). The department noted in that case that the purpose of the legislation could be thwarted by full exercise of rights under the mining laws. The IBLA decision herein relied on the following significant passage from the Instructions decision.

While the policy is well established that mineral lands are not to be sold or otherwise disposed of except by express provisions of law, the Department is not aware of any established or stable public policy that lands set aside for particular public uses and purposes under any acts of Congress, which neither expressly exclude nor. include mineral lands, are to be construed as subject to the mineral land laws. To the contrary, in many instances public lands reserved or withdrawn for sundry public uses and purposes by acts or pursuant to acts of Congress which do not in terms expressly include mineral lands, and likewise lands reserved or withdrawn by the President by virtue of his inherent power, which contain no reference to mineral land, are not subject to the operation of the mineral land laws. Among these instances of reserves where mineral exploration, location and development are not expressly inhibited but are not permitted, may be mentioned military reservations (17 Op. Atty.Gen. 230); national monuments created under the act of June 8, 1906 (34 Stat. 225); Cameron vs. United States, 252 U.S. 450 [40 S.Ct. 410, 64 L.Ed. 659]. The various acts creating bird and game reserves (16 U.S.C. ch. 7) do not expressly forbid mineral location and entry or operations under the mineral land laws, nevertheless applications for permits under the General Leasing Act have been denied on such reserves where the operations would jeopardize or impair (J.D. Mell et al., 50 L.D. 308), or destroy (R. G. Folk, A. 20601, unreported, decided March 4, 1937) the usefulness of the reserve as a wildlife refuge. Mineral lands within withdrawals for stock-driveway purposes made under section 10 of the act of December 29, 1916 (39 Stat. 862), became subject to the mining laws under rules, regulations and restrictions provided by the act of January 29, 1929 (45 Stat. 1144). See 43 CFR 185.35. And likewise mineral land included in withdrawals for construction purposes under the reclamation act of June 17, 1902 (32 Stat. 388), were by the act of April 23, 1932 (47 Stat. 136), made subject to location and entry and patent under the mining laws in the discretion of the Secretary where the rights of the United States would not be prejudiced, with reservation of such rights, ways and easements necessary to the protection of the irrigation interests.
While in the National Forest Act the Congress expressly opened the land to the miner, and other acts, such as the act of June 25,1910 (36 Stat. 847), as amended by the act of August 24,1912 (37 Stat. 497), opened the withdrawals made thereunder to the miner of metalliferous minerals, the acts creating the national parks in the public land States have closed the door to the miner in such parks. See 16 U.S.C. secs. 21 to 355, inclusive; Lindley on Mines, sec. 196. As to acts setting aside lands for particular public purposes which do not expressly extend or prohibit the operation of the mineral land laws, there is no sufficient basis for the presumption that the mineral land laws, unless there are express words of exclusion, extend to them. On the contrary, in all such cases the intent of Congress in that respect must be gathered from the act itself

(emphasis supplied by the IBLA, 57 I.D. at 372-73).

To refute these cases, the plaintiff relies primarily on the argument that the language of the authorizing statute does not indicate an intention to withdraw the lands from mineral entry and cites instances where very specific language was used. E.g., 26 Stat. 478 (Sept. 25, 1890) (establishing Sequoia and General Grant National Parks). The inference that the plaintiff urges on the Court is that when Congress wanted to completely withdraw land from mineral entry it knew how to do so, and therefore this Court must assume that it meant to do something less in this case. In light of the above referenced case law, the IBLA was reasonable in rejecting this view.

The legislative history in this case is not very helpful in determining the intent of Congress. All the parties to this dispute rely on the legislative history of the authorizing acts in support of their positions. The available legislative history consists of brief House and Senate reports. H.R. Rep. No. 4973, 59th Cong., 1st Sess. (1906); S.Rep. No. 1586, 59th Cong., 1st Sess. (1906). Like the Act itself, neither report directly addresses the subject of mineral entry. Plaintiff argues that the failure to mention it is indicative of a lack of intent to withdraw the lands. Furthermore, the House report, quoting a speech by President Roosevelt, specifically addresses other threats to wildlife including overgrazing and fire, but not mining. H.R.Rep. No. 4973 at 2. Again, the plaintiff argues that the exclusion should be taken to mean that neither the President nor Congress considered open mining any threat to the wildlife within the Preserve. Both reports also mention that setting aside part of the forest reserve would not impair it for any of the purposes for which it was already set apart. The plaintiff argues that this, by virtue of the Organic Act, includes mining. Even if mining was not prohibited within the forest reserves, it was hardly a use for which the forest reserves were set aside.

The IBLA opinion stresses that in looking for congressional intent on mineral entry, a court should consider the extent to which allowing mineral entry would frustrate the purposes that were addressed by Congress. 70 IBLA at 272. First, the IBLA notes that it must be assumed that those miners making entry under the General Mining Laws of 1872 would take full advantage of the privileges provided thereby. Id. at 278. Entry under that law does not restrict the manner in which mining can be done and would result in eventual alienation of title from the government by patent. The IBLA noted that in instances where mining has been allowed in various wildlife areas around the country and within the Grand Canyon Game Preserve, it has been on a restrictive basis. Id.; see e.g., Act of June 24, 1941, as amended 16 U.S.C. § 678 (1976). The entry sought by the plaintiff would have no such restrictions and therefore is irreconciliable with the purpose of the Game Preserve. It does not make sense for the government to set side land for a particular purpose and thereafter permit piecemeal alienation of it. In other words, it is conceivable that multiple use could be made of the land, but it is impracticable when it would result in alienation of title.

The defendants and intervenors have included in the record substantial discussion and evidence about the potential adverse impact that mining could have on the wildlife population. There are affidavits from various experts that the mining activity that could result under the general mining laws with all the claims that have been filed could have a substantial adverse impact on the area. This evidence is not very probative of the intent of Congress in establishing the Preserve. It does illustrate, however, the illogic of establishing a game preserve without limitation of general mining entry, and that can be used to infer that Congress would not have intended such a result. See, West Winds, Inc. v. M. v. Resolute, 720 F.2d 1097, 1101 (9th Cir.1983).

The plaintiff has also argued that if the statute and proclamation establishing the Game Preserve is considered to be ambiguous, then they should be interpreted by examining the application of it by the Interior Department in the years immediately following enactment. It is in this area of evidence that the decision of the Interior Department is entitled to the greatest deference. The IBLA is better equipped than this Court to evaluate the significance of prior agency action.

The plaintiff points out that a small number of mining patents for land located within the Game Preserve were issued in the years following the Preserve’s establishment, and argues that these are evidence that the Interior Department officials issuing the patents believed, contemporaneously, that the land was open to mineral entry. Contemporaneous construction by the department is, of course, entitled to special deference. Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). The plaintiff contends that “the Department of the Interior has the power and the duty to inquire into and to adjudicate all matters relating to the right of an applicant to receive a patent.” 3 Am.L. of Mining, § 9.04 (Rocky Mountain Mineral Law Foundation, 1st Ed.1983). The defendants do not dispute this principle, but argue that the few patents issued in this case were the result of either administrative error or the result of valid pre-existing rights. There is a factual dispute, not resolved by the IBLA, about whether it is possible for the patents issued within the Preserve to have been the result of pre-ex-isting rights, but it is neither necessary nor appropriate for this Court to resolve that dispute at this time. It appears unlikely that the issue could ever be conclusively resolved.

In any event all the previously patented lands within the Preserve have been reacquired so that the entire Preserve is a contiguous and uninterrupted area to be managed for the benefit of wildlife. As noted by the IBLA, this suggests the futility of a policy that permits mineral entry and subsequent patenting only to have the government forced to reacquire the land to put it to the use for which it was originally set apart, and then to have it again subject to entry. 70 IBLA at 281.

As further evidence of a departmental belief that the Game Preserve was open to mineral entry, the plaintiff notes that in 1909 the Forest Service withdrew from mineral entry a one acre parcel within the Game Preserve for use as an administrative site. The plaintiff argues that the withdrawal would not have been necessary if the Game Preserve was already withdrawn from mineral entry. The defendants speculate that the withdrawal was accomplished as a routine administrative matter like many other withdrawals from forest service lands required for administrative sites and that the paperwork was merely copied without deletion of the portions relating to mineral entry. Furthermore, the mineral withdrawal was later determined to be unnecessary and was revoked. Tr. 237. The IBLA did not adopt the speculation of the defendants, but did not consider the withdrawal very probative, “as it indicates no conscious determination of its prior status.” 70 IBLA at 280. This Court agrees, especially in light of the later revocation.

The plaintiff also noted that the public records in the Arizona State Office of the BLM showed the land within the Game Preserve as open to mineral entry until 1981. The Secretary claims that it was merely an error and that when the mistake was recognized the records were corrected to show an effective withdrawal date of 1906, the year the Preserve was established. The plaintiff was told of the mistake before it placed its claims. It does not advance a reliance argument. The IBLA noted that a mining claim located on withdrawn land is null and void even if the land records erroneously indicate that the land is open. See Rod Knight, 30 IBLA 224 (1977).

The plaintiff also relies on a 1941 letter from the Arizona BLM office indicating a belief that game preserves in general were open to mineral entry. That letter was equivocal at best, indicating that the inquirer should provide a specific location to be sure. Tr. 36. This letter is hardly probative of a departmental determination that mineral entry was permissible within the Grand Canyon Game Preserve.

In response to the items cited by the plaintiff as evidence of a departmental belief that the Game Preserve was open to mineral entry, the defendants cite a large amount of correspondence and official opinion that the Game Preserve is closed to mineral entry. The first record found showing that the matter of mineral entry within the Preserve was considered at any high level of the Department of Interior is in a letter from Assistant Secretary of the Interior Orme Lewis to the Director of Mineral Resources, State of Arizona. The letter, dated January 4, 1955, has not been located but was referred to by Mr. L.K. Louma, Field Solicitor of the BLM, in a later opinion. Tr. 85-86. The Assistant Secretary opined that the Game Preserve was not open to mineral entry. He relied on a 1938 opinion of the Attorney General that the Wichita National Game Preserve, established by nearly identical language contemporaneously with the Grand Canyon Game Preserve, was closed to mineral entry. 38 Op. Att’y Gen. 192. He also relied on the Birdsell opinion discussed supra. The Field Solicitor’s opinion citing the Lewis letter reached the same conclusion. Tr. 85-86.

Other correspondence evidencing a departmental belief that the Game Preserve was withdrawn from mineral entry is found in Tr. 87-88, 89-90, 94, 182, 184-185, 199, 210-211, 226-227, 236-240, 244, 246-247, 251, 253 and 325. It can be fairly stated that both the Department of Interior (Bureau of Land Management) and the Forest Service have consistently maintained since at least 1930 that the Preserve is, and has been, closed to mineral entry since its establishment in 1906.

Conclusion

Despite the lack of specific reference to the mining laws in the authorizing legislation, this Court is persuaded that Congress would not set aside land for the purpose of wildlife protection without intending to protect that land from piecemeal alienation under the general mining laws. It is true that some mining has occurred within the Preserve throughout the decades since its establishment, but virtually none of that was under the General Mining Laws of 1872 resulting in alienation of title from the government. Evidence that the Game Preserve has been managed under the concept of multiple use is not evidence that open mining has been, or should be, allowed under the general mining laws. Other provisions in the law, such as mineral leasing, permit mining that can be controlled so as to minimize the impact on the purpose for which the land was set apart and does not result in alienation of title. Those few mining claims that were allowed to go to patent, whether by administrative oversight or otherwise, have been reacquired. Therefore, the decision of the IBLA is

AFFIRMED.

      . 30 Stat. 35 (1897).

      . Quoting largely from the authorizing act (34 Stat. 607), the proclamation said:
      Whereas, it is provided by the Act of Congress, approved June twenty-ninth, nineteen hundred and six, entitled "An Act for the protection of wild animals in the Grand Canyon Forest Reserve," "That the President of the United States is hereby authorized to designate such areas in the Grand Canyon Forest Reserve as should, in his opinion, be set aside for the protection of game animals and be recognized as a breeding place therefor.
      "Sec. 2. That when such areas have been designated as provided in section one of this Act, hunting, trapping, killing, or capturing of game animals upon the lands of the United States within the limits of said areas shall be unlawful, except under such regulations as may be prescribed from time to time by the Secretary of Agriculture; and any person violating such regulations or the provisions of this Act shall be deemed guilty of a misdemeanor, and shall, upon conviction in any United States court of competent jurisdiction, be fined in a sum not exceeding one thousand dollars, or by imprisonment for a period not exceeding one year, or shall suffer both fine and imprisonment, in the discretion of the court.
      "Sec. 3. That it is the purpose of this Act to protect from trespass the public lands of the United States and the game animals which may be thereon, and not to interfere with the operation of the local game laws as affecting private, State, or Territorial lands";
      And whereas, for the purpose of giving this Act effect, it appears desirable that a part of the Grand Canyon Forest Reserve be declared a Game Preserve;
      Now, therefore, I, Theodore Roosevelt, President of the United States, by virtue of the power in me vested by the aforesaid Act of Congress, do hereby make known and proclaim that all those lands within the Grand Canyon Forest Reserve, lying north and west of the Colorado River, in the Territory of Arizona, are designated and set aside for the protection of game animals, and shall be recognized as a breeding place therefor, and that the hunting, trapping, killing or capturing of game animals upon the lands of the United States within the limits of said area is unlawful, except under such regulations as may be prescribed from time to time by the Secretary of Agriculture.
      34 Stat. 3263 (1906).

      . REPORT [H.R.Rep. No. 4973] (To accompany S. 2732)
      The Committee on the Public Lands, to whom was referred Senate bill 2732, having had the same under consideration, respectfully submit the following report:
      This bill is substantially in the same form as the act authorizing the designation of the Wichita Forest Reserve as a game refuge.
      This land is all public land, is now in a state of reserve, and is protected by Federal custodians. To protect the animals and birds in this forest, as well as the forest itself, would therefore not involve additional expense.
      It would be an advantage to all the people of that Territory and in no wise interfere with the use of the forest reserve. The Department of Agriculture could also obtain supplies there for purposes of propagation in other parts of the country.
      The President in his message to Congress called attention to the propriety of making some havens of refuge for the surviving wild birds, game, and fish within these reserves. He said:
      “Certain of the forest reserves should also be made preserves for the wild forest creatures. All of the reserves should be better protected from fires. Many of them need special protection because of the great injury done by live stock, above all by sheep. The increase in deer, elk, and other animals in the Yellowstone Park shows what may be expected when other mountain forests are properly protected by law and properly guarded. Some of these areas have been so denuded of surface vegetation by overgrazing that the ground-breeding birds, including grouse and quail, and many mammals, including deer, have been exterminated or driven away. At the same time the water-storing capacity of the surface has been decreased or destroyed, thus promoting floods in times of rain and diminishing the flow of streams between rains.
      In cases where natural conditions have been restored for a few years, vegetation has again carpeted the ground, birds and deer are coming back, and hundreds of persons, especially from the immediate neighborhood, come each summer to enjoy the privilege of camping. Some at least of the forest reserves should afford perpetual protection to the native fauna and flora, safe havens of refuge to our rapidly diminishing wild animals of the larger kinds, and free camping grounds for the ever increasing numbers of men and women who have learned to find rest, health and recreation in the splendid forests and flower-clad meadows of our mountains. The forest reserves should be set apart forever for the use and benefit of our people as a whole and not sacrificed to the shortsighted greed of a few.
      The forests are natural reservoirs. By restraining the streams in flood and replenishing them in drought they make possible the use of waters otherwise wasted. They prevent the soil from washing, and so protect the storage reservoirs from filling up with silt. Forest conservation is therefore an essential condition of water conservation.”
      The protection of game in this reserve will in no wise impair the use of the forest reserve for any of the uses to which it is already set apart, and will prevent the extermination of the small remains of harmless wild life now found therein.
      Your committee recommends that the bill do pass without amendment.

      . REPORT [S.Rep. No. 1586] (To accompany S. 2732)
      The Committee on Forest Reservations and the Protection of Game, to whom was referred the bill (S. 2732) providing for the protection of wild animals in the Grand Canyon Forest Reserve, have examined the bill and herewith report the same with the recommendation that it be passed without amendment.
      The Grand Canyon Forest Reserve has been set apart in northern Arizona. This tract of land is the only timbered portion of what is known as the Arizona Strip, north and west of the Colorado River. It can not be utilized for agricultural purposes, as there is not sufficient water available. It has been set apart as a permanent timber reserve.
      The bill proposes to permit the President of the United States to designate as a game preserve for animals such part of the said reserve as in his opinion may be proper. In one of his messages the President asked that authority be given, as to all the forest reserves in the United States, for the Executive to designate areas thereof as havens of refuge for the small remaining portion of our game and birds. Thus far Congress has not enacted a general law on the subject.
      The bill applies only to the Grand Canyon Forest Reserve, and no opposition thereto has been expressed from any part of the country affected thereby. The committee understand that the sentiment is unanimously in favor of this action, in that it will protect from hunters some suitable portion of that region, to be used as a refuge and breeding ground for game animals, which are being reduced in number by reason of having no such protection and whose existence it is beneficial to maintain.
      The Grand Canyon Forest Reserve is so provided with natural facilities of protection that an area therein suitable for the purposes of this bill can be inclosed safely by 16 miles of fence in addition to natural barriers that now protect it on three sides. The Colorado and Kanab Creek now form impassable barriers on the east, west and south sides of an area on the north side of which high cliffs and 16 miles of fence would make an inclosure where game animals can be kept and protected.
      The spot is ideal for buffalo, deer, and other wild game. The land is all public land, is in a state of reserve, and is protected by Federal custodians, so that in this regard the protection of animals in the forest will not involve additional expense. There will be no interference with the use of the forest reserve in respect to its general purpose while the establishment of such a game preserve in that place would be beneficial, both in aiding to provide the Department of Agriculture with supplies for purposes of propagation elsewhere and in being generally advantageous to the public interests so far as these are sub-served by the protection and propagation of desirable species of game animals in the United States.

      . The pleadings revealed that by the time these motions were filed, 2247 claims had been filed within the Preserve.

      . The statutes and proclamations first establishing the forest reserve provided for the exclusion of pre-existing rights.

      . There is no evidence in the record about how or why these parcels were reacquired.

      . The plaintiff makes the argument that the government’s position that the Preserve is closed is based on departmental confusion about the difference between a game refuge and a game preserve. The Wildlife Refuge System, as presently constituted, was created in 1966 when Congress passed an act consolidating many wildlife areas into one system for management. See 16 U.S.C. § 668dd. The Grand Canyon National Game Preserve is not part of that system. Lands within the Refuge System are clearly not open to mineral entry. 50 C.F.R. § 27.64. The plaintiff is undoubtedly correct that the rules governing refuges should not be used to establish that the Preserve is closed. On the other hand, the fact that the Preserve is not part of the Refuge System is not evidence that it is open to mineral entry.