source: Caselaw Access Project

author:
Justice Rehnquist Justice Blackmun,
      Justice Stevens,

license: Public Domain

text:
    UNITED STATES v. KNOTTS
    No. 81-1802.
    Argued December 6 1982
    Decided March 2, 1983

      Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Powell, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 285. Blackmun, J., filed an opinion concurring in the judgment, in which Brennan, Marshall, and Stevens, JJ., joined, post, p. 287. Stevens, J., filed an opinion concurring in the judgment, in which Brennan, and Marshall, JJ., joined, post, p. 288.

      Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Jensen, Elliott Schulder, and Gloria C. Phares.

      Mark W. Peterson argued the cause and filed a brief for respondent.
   Justice Rehnquist

delivered the opinion of the Court.

A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five-gallon drum containing chloroform purchased by one of respondent’s codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minn., to respondent’s secluded cabin near Shell Lake, Wis. The issue presented by the case is whether such use of a beeper violated respondent’s rights secured by the Fourth Amendment to the United States Constitution.

I — <

Respondent and two codefendants were charged in the United States District Court for the District of Minnesota with conspiracy to manufacture controlled substances, including but not limited to methamphetamine, in violation of 21 U. S. C. §846. One of the codefendants, Darryl Petschen, was tried jointly with respondent; the other codefendant, Tristan Armstrong, pleaded guilty and testified for the Government at trial.

Suspicion attached to this trio when the 3M Co., which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the employ of 3M Co., he had been purchasing similar chemicals from the Hawkins Chemical Co. in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen.

With the consent of the Hawkins Chemical Co., officers installed a beeper inside a five-gallon container of chloroform, one of the so-called “precursor” chemicals used to manufacture illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper.

Armstrong proceeded to Petschen’s house, where the container was transferred to Petschen’s automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now was stationary and the location identified was a cabin occupied by respondent near Shell Lake, Wis. The record before us does not reveal that the beeper was used after the location in the area of the cabin had been initially determined.

Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual surveillance of respondent’s cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce 14 pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five-gallon container of chloroform.

After his motion to suppress evidence based on the war-rantless monitoring of the beeper was denied, respondent was convicted for conspiring to manufacture controlled substances in violation of 21 U. S. C. .§ 846. He was sentenced to five years’ imprisonment. A divided panel of the United States Court of Appeals for the Eighth Circuit reversed the conviction, finding that.the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated respondent’s reasonable expectation of privacy, and that all information derived after the location of the cabin was a fruit of the illegal beeper monitoring. 662 F. 2d 515 (1981). We granted certiorari, 457 U. S. 1131 (1982), and we now reverse the judgment of the Court of Appeals.

In Olmstead v. United States, 277 U. S. 438 (1928), this Court held that the wiretapping of a defendant’s private telephone line did not violate the Fourth Amendment because the wiretapping had been effectuated without a physical trespass by the Government. Justice Brandéis, joined by Justice Stone, dissented from that decision, believing that the actions of the Government in that case constituted an “unjustifiable intrusion . . . upon the privacy of the individual,” and therefore a violation of the Fourth Amendment. Id., at 478. Nearly 40 years later, in Katz v. United States, 389 U. S. 347 (1967), the Court overruled Olmstead saying that the Fourth Amendment’s reach “cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” 389 U. S., at 353. The Court said:

“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance.” Ibid.

In Smith v. Maryland, 442 U. S. 735 (1979), we elaborated on the principles stated in Katz:

“Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action. [Citations omitted.] This inquiry, as Mr. Justice Harlan aptly noted in his Katz concurrence, normally embraces two discrete questions. The first is whether the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of privacy,’ 389 U. S., at 361 — whether, in the words of the Katz majority, the individual has shown that ‘he seeks to preserve [something] as private.’ Id., at 351. The second question is whether the individual’s subjective expectation of privacy is ‘one that society is prepared to recognize as “reasonable,”’ id., at 361— whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is ‘justifiable’ under the circumstances. Id., at 353. See Rakas v. Illinois, 439 U. S., at 143-144, n. 12; id., at 151 (concurring opinion); United States v. White, 401 U. S., at 752 (plurality opinion).” 442 U. S., at 740-741 (footnote omitted).

The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile:

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U. S. 583, 590 (1974) (plurality opinion).

See also Rakas v. Illinois, 439 U. S. 128, 153-154, and n. 2 (1978) (Powell, J., concurring); South Dakota v. Opperman, 428 U. S. 364, 368 (1976).

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned:

“Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.” Johnson v. United States, 333 U. S. 10, 14 (1948), quoted with approval in Payton v. New York, 445 U. S. 573, 586 (1980).

But no such expectation of privacy extended to the visual observation of Petschen’s automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.” Hester v. United States, 265 U. S. 57 (1924).

Visual surveillance from public places along Petschen’s route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of Petschen’s automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case. In United States v. Lee, 274 U. S. 559 (1927), the Court said:

“But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches. For aught that appears, the cases of liquor were on deck and, like the defendants, were discovered before the motor boat was boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Id., at 563.

We have recently had occasion to deal with another claim which was to some extent a factual counterpart of respondent’s assertions here. In Smith v. Maryland, we said:

“This analysis dictates that [Smith] can claim no legitimate expectation of privacy here. When he used his phone, [Smith] voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, [Smith] assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in ' an earlier day, personally completed calls for the subscriber. [Smith] concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. [Citation omitted.] We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate.” 442 U. S., at 744-745.

Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that “twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision.” Brief for Respondent 9 (footnote omitted). But the fact is that the “reality hardly suggests abuse,” Zurcher v. Stanford Daily, 436 U. S. 547, 566 (1978); if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Ibid. Insofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.

Respondent specifically attacks the use of the beeper insofar as it was used to determine that the can of chloroform had come to rest on his property at Shell Lake, Wis. He repeatedly challenges the “use of the beeper to determine the location of the chemical drum at Respondent’s premises,” Brief for Respondent 26; he states that “[t]he government thus overlooks the fact that this case involves the sanctity of Respondent’s residence, which is accorded the greatest protection available under the Fourth Amendment.” Ibid. The Court of Appeals appears to have rested its decision on this ground:

“As noted above, a principal rationale for allowing war-rantless tracking of beepers, particularly beepers in or on an auto, is that beepers are merely a more effective means of observing what is already public. But people pass daily from public to private spheres. When police agents track bugged personal property without first obtaining a warrant, they must do so at the risk that this enhanced surveillance, intrusive at best, might push fortuitously and unreasonably into the private sphere protected by the Fourth Amendment.” 662 F. 2d, at 518.

We think that respondent’s contentions, and the above-quoted language from the opinion of the Court of Appeals, to some extent lose sight of the limited use which the government made of the signals from this particular beeper. As we have noted, nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent’s premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz v. United States, 389 U. S. 347 (1967), neither were they dis-positive in Hester v. United States, 265 U. S. 57 (1924).

We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold it did not. Since it did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. The judgment of the Court of Appeals is therefore

Reversed.

Justice Brennan, with whom Justice Marshall joins, concurring in the judgment.

I join Justice Blackmun’s and Justice Stevens’ opinions concurring in the judgment. I should add, however, that I think this would have been a much more difficult case if respondent had challenged, not merely certain aspects of the monitoring of the beeper installed in the chloroform container purchased by respondent’s compatriot, but also its original installation. See ante, at 279, n. Katz v. United States, 389 U. S. 347 (1967), made quite clear that the Fourth Amendment protects against governmental invasions of a person’s reasonable “expectation[s] of privacy,” even when those invasions are not accompanied by physical intrusions. Cases such as Silverman v. United States, 365 U. S. 505, 509-512 (1961), however, hold that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment even if the same information could have been obtained by other means. I do not believe that Katz, or its progeny, have eroded that principle. Cf. The Supreme Court, 1979 Term, 94 Harv. L. Rev. 75, 203-204 (1980).

I am also entirely unconvinced by the Court of Appeals’ footnote disposing of the installation issue with the statement: “we hold that the consent of the owner [of the chloroform drum] at the time of installation meets the requirements of the Fourth Amendment, even if the consenting owner intends to soon sell the ‘bugged’ property to an unsuspecting buyer. Caveat emptor.” 662 F. 2d 515, 517, n. 2 (1981) (citation omitted). The Government is not here defending against a claim for damages in an action for breach of a warranty; it is attempting to justify the legality of a search conducted in the course of a criminal investigation. I am not at all sure that, for purposes of the Fourth Amendment, there is a constitutionally significant difference between planting a beeper in an object in the possession of a criminal suspect and purposefully arranging that he be sold an object that, unknown to him, already has a beeper installed inside it. Cf. Gouled v. United States, 255 U. S. 298, 305-306 (1921); Lewis v. United States, 385 U. S. 206, 211 (1966).

Respondent claimed at oral argument that, under this Court’s cases, he would not have standing to challenge the original installation of the beeper in the chloroform drum because the drum was sold, not to him, but to one of his compatriots. See ante, at 279, n. If respondent is correct, that would only confirm for me the formalism and confusion in this Court’s recent attempts to redefine Fourth Amendment standing. See Rawlings v. Kentucky, 448 U. S. 98, 114 (1980) (Marshall, J., dissenting); Rakas v. Illinois, 439 U. S. 128, 156 (1978) (White, J., dissenting).

Justice Blackmun,

with whom Justice Brennan, Justice Marshall, and Justice Stevens join, concurring in the judgment.

The Court’s opinion gratuitously refers to the “open fields” doctrine and twice cites Hester v. United States, 265 U. S. 57 (1924). Ante, at 282 and 285. For me, the present case does not concern the open fields doctrine, and I regard these references and citations as unnecessary for the Court’s decision. Furthermore, and most important, cases concerning the open fields doctrine have been accepted by the Court for argument and plenary consideration. State v. Brady, 406 So. 2d 1093 (Fla.), cert. granted, 456 U. S. 988 (1982); United States v. Oliver, 686 F. 2d 356 (CA6 1982), cert. granted, 459 U. S. 1168 (1983). See also United States v. Dunn, 674 F. 2d 1093 (CA5 1982), cert. pending, No. 82-508.

It would be unfortunate to provide either side in these granted cases with support, directly or by implication, for its position, and I surely do not wish to decide those cases in this one. Although the Court does not indicate its view on how such cases should be decided, I would defer all comments about open fields to a case that concerns that subject and in which we have the benefit of briefs and oral argument.

I therefore do not join the Court’s opinion. I concur only in the result it reaches.

Justice Stevens,

with whom Justice Brennan, and Justice Marshall join, concurring in the judgment.

Since the respondent in this case has never questioned the installation of the radio transmitter in the chloroform drum, see ante, at 279, n., I agree that it was entirely reasonable for the police officers to make use of the information received over the airwaves when they were trying to ascertain the ultimate destination of the chloroform. I do not join the Court’s opinion, however, because it contains two unnecessarily broad dicta: one distorts the record in this case, and both may prove confusing to courts that must apply this decision in the future.

First, the Court implies that the chloroform drum was parading in “open fields” outside of the cabin, in a manner tantamount to its public display on the highways. See ante, at 282. The record does not support that implication. As Justice Blackmun points out, this case does not pose any “open fields” issue.

Second, the Court suggests that the Fourth Amendment does not inhibit “the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them.” Ibid. But the Court held to the contrary in Katz v. United States, 389 U. S. 347 (1967). Although the augmentation in this case was unobjectionable, it by no means follows that the use of electronic detection techniques does not implicate especially sensitive concerns.

Accordingly, I concur in the judgment.

      Respondent does not challenge the warrantless installation of the beeper in the chloroform container, suggesting in oral argument that he did not believe he had standing to make such a challenge. We note that while several Courts of Appeals have approved warrantless installations, see United States v. Bernard, 625 F. 2d 854 (CA9 1980); United States v. Lewis, 621 F. 2d 1382 (CA5 1980), cert. denied, 450 U. S. 935 (1981); United States v. Bruneau, 594 F. 2d 1190 (CA8), cert. denied, 444 U. S. 847 (1979); United States v. Miroyan, 577 F. 2d 489 (CA9), cert. denied, 439 U. S. 896 (1978); United States v. Cheshire, 569 F. 2d 887 (CA5), cert. denied, 437 U. S. 907 (1978); United States v. Curtis, 562 F. 2d 1153 (CA9 1977), cert. denied, 439 U. S. 910 (1978); United States v. Abel, 548 F. 2d 591 (CA5), cert. denied, 431U. S. 956 (1977); United States v. Hufford, 539 F. 2d.32 (CA9), cert. denied, 429 U. S. 1002 (1976), we have not before and do not now pass on the issue.


author: Justice Marshall

text:
    BLOCK, SECRETARY OF AGRICULTURE, et al. v. NEAL
    No. 81-1494.
    Argued January 19, 1983
    Decided March 7, 1983

      Marshall, J., delivered the opinion of the Court, in which Brennan, White, Blackmun, Powell, Rehnquist, Stevens, and O’Connor, JJ., joined. Burger, C. J., concurred in the judgment.

      Carter G. Phillips argued the cause for petitioners. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Deputy Solicitor General Getter, Anthony J. Steinmeyer, and Margaret E. Clark.

      Lenny L. Croce argued the cause for respondent. With him on the brief were Neil G. McBride and Dean Hitt Rivkin

        David M. Madway filed a brief for the National Housing Law Project as amicus curiae urging affirmance.

        Jan Perkins filed a brief for Oregon Legal Services Corp. as amicus curiae.

   Justice Marshall

delivered the opinion of the Court.

The Secretary of Agriculture is authorized by Title V of the Housing Act of 1949, 63 Stat. 432, as amended, 42 U. S. C. §1471 et seq. (1976 ed., and Supp. V), to extend financial and technical assistance through the Farmers Home Administation (FmHA) to low-income rural residents who seek to obtain housing. Respondent Onilea Neal, the recipient of an FmHA loan for the construction of a prefabricated house, brought this action under the Federal Tort Claims Act, 28 U. S. C. §§ 1346(b), 2671-2680. She alleged that defects discovered after she set up residence were partly attributable to the failure of FmHA employees properly to inspect and supervise construction of her house. This case presents the question whether respondent’s action is barred by 28 U. S. C. § 2680(h), which precludes recovery under the Tort Claims Act for “[a]ny claim arising out of . . . misrepresentation. ”

I

A

The facts described in respondent’s complaint may be summarized as follows. Unable to obtain credit from other sources, Neal applied for a Rural Housing Loan from FmHA pursuant to § 502(a) of the Housing Act of 1949, 42 U. S. C. § 1472(a). FmHA approved her application in June 1977. During the summer of that year, Neal received advice from S. Lain Parkison, the FmHA Supervisor for Roane County, Tenn.

On August 8, 1977, Neal contracted with Home Marketing Associates, Inc. (Home Marketing), for the construction of a prefabricated house. The contract required that Home Marketing’s work conform to plans approved by FmHA. It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. At the same time, Neal entered into a deed of trust with FmHA and signed a promissory note providing for repayment of the principal sum of $21,170, plus interest of 8% per annum on the unpaid principal.

Home Marketing commenced work on Neal’s house in August 1977 and finished the following month. An FmHA official, Mary Wells, inspected the site on three occasions: soon after construction began, shortly before it was concluded, and after the house was completed. Her inspection reports contained no adverse comments on the construction work. After her third inspection, Wells issued a final report, signed by Neal, which indicated that the construction accorded with the drawings and specifications approved by FmHA. Home Marketing issued a one-year builder’s warranty covering workmanship, materials, and equipment.

Neal moved into the house in 1977. During the winter, she discovered that the heat pump in the house was not working properly. She notified FmHA and Home Marketing. An inspection by Parkison, the County FmHA Supervisor, revealed that the heat pump unit was either defective or undersized. On March 22, 1978, FmHA’s State Director and other FmHA officials conducted a complete inspection and identified 13 additional defects in the construction of the house. These included deviations from plans approved by FmHA and from applicable Minimum Property Standards. The inadequacies in materials and workmanship included defects in caulking, bridging, sealing, and plumbing, and extended to all areas of the house, such as the porch, the rear door, the floor, the roof, the exterior paint, and the interior wall finish. Home Marketing refused to comply with FmHA’s request to cure these defects in accordance with the builder’s warranty.

In November 1978 respondent asked FmHA to pay for the correction of the heating system and other structural defects. It declined to do so.

B

The United States District Court for the Eastern District of Tennessee dismissed Neal’s complaint for failure to state a claim on which relief can be granted. Neal v. Bergland, 489 F. Supp. 512 (1980). It found that no contractual duty to supervise the construction of respondent’s home was created either by the Federal Housing Act of 1949 and the regulations promulgated thereunder or by the various agreements between respondent and FmHA. The court concluded that regulations requiring FmHA officials to ensure that the builder adhere to the terms of its construction contract were intended solely to protect the Government’s security interest, and were not intended to make FmHA warrant the quality of construction for the benefit of those receiving rural assistance loans. Id., at 514-515. The District Court also concluded that respondent failed to state a claim against FmHA under applicable tort law. Id., at 515.

The Court of Appeals reversed. Neal v. Bergland, 646 F. 2d 1178 (CA6 1981). It agreed with the District Court that FmHA had no contractual obligation to provide Neal with technical assistance or to inspect and supervise construction of her house. Id., at 1181. However, the Court of Appeals found that respondent’s complaint stated a claim for negligence under the principle “that one who undertakes to act, even though gratuitously, is required to act carefully and with the exercise of due care and will be liable for injuries proximately caused by failure to use such care.” Id., at 1181-1182, citing Restatement (Second) of Torts §323 (1965). It noted that, subject to express exceptions, the Tort Claims Act, 28 U. S. C. §2674, authorizes suit against the Government for the negligence of a federal agency in performing a voluntary undertaking. Ibid.

The Court of Appeals then considered the question now before us: whether respondent’s claim “aris[es] out of. . . misrepresentation,” 28 U. S. C. § 2680(h), and is therefore ex-eluded from coverage by the Tort Claims Act. Distinguishing this case from others including United States v. Neustadt, 366 U. S. 696 (1961), the court concluded that respondent’s negligence claim did not fall within this exception to the waiver of sovereign immunity. The Secretary of Agriculture and other Government officials petitioned for certiorari and suggested summary reversal on the ground that the decision below cannot be reconciled with this Court’s decision in Neustadt. We granted the writ, 456 U. S. 988 (1982), and we now affirm.

II

The question before us is a narrow one. Petitioners argue only that respondent’s claim is a claim of “misrepresentation” within the meaning of § 2680(h). They do not seek review of the threshold determination that respondent’s complaint states a claim for negligence under the Good Samaritan doctrine that is otherwise actionable under 28 U. S. C. §2674. Thus, we need not decide precisely what Neal must prove in order to prevail on her negligence claim, nor even whether such a claim lies. Nor are we called on to consider whether recovery is barred by any other provision of the Tort Claims Act, including the exception for any action “based upon the exercise or performance or the failure to exercise or perform a discretionary function.” §2680(a). Finally, we are not asked to determine whether the administrative remedy created by the Housing Act of 1949, 42 U. S. C. § 1479(c) (1976 ed., Supp. V), provides the exclusive remedy against the Government for damages attributable to the negligence of FmHA officials.

The scope of the “misrepresentation” exception to the Tort Claims Act was the focus of this Court’s decision in United States v. Neustadt, supra. Neustadt purchased a house in reliance on an appraisal undertaken by the Federal Housing Administration (FHA) for mortgage insurance purposes. After he took up residence, cracks appeared in the ceilings and walls of his house. The cracks were caused by structural defects that had not been noticed by the FHA appraiser during the course of his inspection. Neustadt sued the Government under the Tort Claims Act to recover the difference between the fair market value of the property and the purchase price. He alleged that the FHA had negligently inspected and appraised the property, and that he had justifiably relied on the appraisal in paying a higher price for the house than he would otherwise have paid.

This Court held that the claim in Neustadt arose out of “misrepresentation” under § 2680(h). We determined initially that § 2680(h) applies to claims arising out of negligent, as well as intentional, misrepresentation. 366 U. S., at 703-706. This Court found that Neustadt’s claim that the Government had breached its “duty to use due care in obtaining and communicating information upon which [the plaintiff] may reasonably be expected to rely in the conduct of his economic affairs,” merely restated the traditional legal definition of “negligent misrepresentation” as would have been understood by Congress when the Tort Claims Act was enacted. Id., at 706-707. Finally, we examined the National Housing Act of 1934, as amended, under which the FHA had conducted its appraisal, and found nothing to indicate “that Congress intended, in a case such as this, to limit or suspend the application of the ‘misrepresentation’ exception of the Tort Claims Act.” Id., at 708-710.

We cannot agree with petitioners that this case is controlled by Neustadt. As we recognized in that decision, the essence of an action for misrepresentation, whether negligent or intentional, is the communication of misinformation on which the recipient relies. The gravamen of the action against the Government in Neustadt was that the plaintiff was misled by a “Statement of FHA Appraisal” prepared by the Government. Neustadt alleged no injury that he would have suffered independently of his reliance on the erroneous appraisal. Because the alleged conduct that was the basis of his negligence claim was in essence a negligent misrepresentation, Neustadt’s action was barred under the “misrepresentation” exception.

Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to reliance on the Government’s negligent misstatements. As a result, the statutory exception undoubtedly preserves sovereign immunity with respect to a broad range of Government actions. But it does not bar negligence actions which focus not on the Government’s failure to use due care in communicating information, but rather on the Government’s breach of a different duty.

In this case, unlike Neustadt, the Government’s misstatements are not essential to plaintiff’s negligence claim. The Court of Appeals found that to prevail under the Good Samaritan doctrine, Neal must show that FmHA officials voluntarily undertook to supervise construction of her house; that the officials failed to use due care in carrying out their supervisory activity; and that she suffered some pecuniary injury proximately caused by FmHA’s failure to use due care. FmHA’s duty to use due care to ensure that the builder adhere to previously approved plans and cure all defects before completing construction is distinct from any duty to use due care in communicating information to respondent. And it certainly does not “appea[r] beyond doubt” that the only damages alleged in the complaint to be caused by FmHA’s conduct were those attributable to Neal’s reliance on FmHA inspection reports. Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Neal’s factual allegations would be consistent with proof at trial that Home Marketing would never have turned the house over to Neal in its defective condition if FmHA officials had pointed out defects to the builder while construction was still underway, rejected defective materials and workmanship, or withheld final payment until the builder corrected all defects.

Of course, in the absence of the “misrepresentation” exception to the Tort Claims Act, respondent could also have brought a claim for negligent misrepresentation to recover for any injury caused by her misplaced reliance on advice provided by FmHA officials and on the FmHA inspection reports. Common to both the misrepresentation and the negligence claim would be certain factual and legal questions, such as whether FmHA officials used due care in inspecting Neal’s home while it was under construction. But the partial overlap between these two tort actions does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well. Neither the language nor history of the Act suggests that when one aspect of the Government’s conduct is not actionable under the “misrepresentation” exception, a claimant is barred from pursuing a distinct claim arising out of other aspects of the Government’s conduct. “ ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’” United States v. Aetna Surety Co., 338 U. S. 366, 383 (1949), quoting Anderson v. Hayes Constr. Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926) (Cardozo, J.). Any other interpretation would encourage the Government to shield itself completely from tort liability by adding misrepresentations to whatever otherwise actionable torts it commits.

We therefore hold that respondent’s claim against the Government for negligence by FmHA officials in supervising construction of her house does not “aris[e] out of . . . misrepresentation” within the meaning of 28 U. S. C. § 2680(h). The Court of Appeals properly concluded that Neal’s claim is not barred by this provision of the Tort Claims Act because Neal does not seek to recover on the basis of misstatements made by FmHA officials. Although FmHA in this case may have undertaken both to supervise construction of Neal’s house and to provide Neal information regarding the progress of construction, Neal’s action is based solely on the former conduct. Accordingly, the judgment of the Court of Appeals is

Affirmed.

The Chief Justice concurs in the judgment.

       Regulations then in effect allowed the recipient of an FmHA loan under § 502 of the Housing Act of 1949, 42 U. S. C. § 1472, to obtain new housing in one of three ways. The method undertaken by respondent, known as the “contract method” of financing new construction, involved the performance of work by a builder in accordance with a signed contract approved by FmHA. See 7 CFR § 1804.4(d) (1977). Although the FmHA “will not become a party to a construction contract nor incur any liability thereunder,” ibid., its officials were significantly involved in all phases of the construction of respondent’s house. For example, the FmHA County Supervisor was authorized to assist the borrower in selecting a contractor based on the bids or proposals and the contractor’s qualifications. § 1804.4(d)(6). He reviewed all plans and specifications, § 1804.4(a), and was required to give prior approval of any changes in the plans, § 1804.4(d), or in the contract. § 1804.4(d)(8). He was responsible for making periodic and final inspections. § 1804.4(d)(6)(i)(/). See also §§ 1808.2, 1803.5, 1804.4(g). He also had a responsibility to see that partial payments made to the contractor were properly applied against his bills for material and labor, § 1804.4(d)(7)(iv), and to determine that work was performed in compliance with all the terms and conditions of the contract before making final payment. § 1804.4(d)(7)(vii). Finally, he assisted the borrower with respect to claims arising under the builder’s warranty. § 1804.4(g)(5).

       The court cited, inter alia, Indian Towing Co. v. United States, 350 U. S. 61 (1955) (Coast Guard’s failure to maintain the beacon light in a lighthouse); Seaboard Coast Line R. Co. v. United States, 473 F. 2d 714 (CA5 1973) (negligent design and construction of a drainage ditch); and Barron v. United States, 473 F. Supp. 1077 (Haw. 1979) (failure to require a subcontractor to comply with a contract’s safety requirements).

       The Court of Appeals found that respondent stated a claim against the United States under the common-law Good Samaritan doctrine which is described in § 823 of the Restatement (Second) of Torts (1965). However, the court did not expressly find that Tennessee law recognizes this doctrine, see 28 U. S. C. § 1346(b), and would apply it to a private person responsible for similar negligence. See 28 U. S. C. § 2674; Rayonier, Inc. v. United States, 352 U. S. 315, 319 (1957); Indian Towing Co. v. United States, supra. Nor did the court describe in any significant detail what respondent must show in order to prevail on her negligence claim.

       Compare, e. g., Johansen v. United States, 343 U. S. 427 (1952) (Federal Employees’ Compensation Act provides exclusive remedy for civilian employees), with United States v. Muniz, 374 U. S. 150, 160 (1963) (provision allowing compensation of certain prison inmates for work-related injuries was not exclusive remedy for inmate), and United States v. Brown, 348 U. S. 110, 111 (1954) (receipt of disability payments under the Veterans Act does not bar recovery under the Tort Claims Act).
      Petitioners do argue at length, however, that neither the Housing Act of 1949 nor subsequent amendments were intended to expand liability beyond that established under the Tort Claims. Act. Brief for Petitioners 22-32. Because we find that respondent’s claim under the Good Samaritan doctrine is not barred by the “misrepresentation” exception to the Tort Claims Act, we do not consider whether the Housing Act provides an alternative basis for respondent’s claim.

       The Court distinguished negligent misrepresentation from the “many familiar forms of negligent misconduct [which] may be said to involve an element of ‘misrepresentation,’ [only] in the generic sense of that word.” 366 U. S., at 711, n. 26. The “misrepresentation” exception applies only when the action itself falls within the commonly understood definition of a misrepresentation claim, which “ ‘has been identified with the common law action of deceit,’ and has been confined ‘very largely to the invasion of interests of a financial or commercial character, in the course of business dealings.’” Ibid,., quoting W. Prosser, Law of Torts §85, pp. 702-703 (1941 ed.). Thus, the claim in Indian Towing Co. v. United States, 350 U. S. 61 (1955), for damages to a vessel which ran aground due to the Coast Guard’s alleged negligence in maintaining a lighthouse, did not “aris[e] out of. . . misrepresentation” within the meaning of § 2680(h).

       See Restatement (Second) of Torts § 552(3) (1977).

       Although this negligence claim may include an element of reliance on FmHA’s voluntary undertaking to supervise construction in a competent manner, this element of the claim would constitute “misrepresentation” only in the generic sense of the word. See n. 5, supra.


author: Justice Blackmun Justice O’Connor,

text:
    NORTH DAKOTA v. UNITED STATES
    No. 81-773.
    Argued November 2, 1982
    Decided March 7, 1983

      Blackmun, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Powell, and Stevens, JJ., joined. O’Connor, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist, J., joined, post, p. 321.

      Robert O. Wefald, Attorney General of North Dakota, argued the cause for appellant. With him on the briefs were Murray G. Sagsveen, Special Assistant Attorney General, and David E. Engdahl.

      Barbara E. Etkind argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Dinkins, Deputy Solicitor General Claiborne, Edward J. Schawaker, and Robert L. Klarquist.

        Richard J. Himelfarb filed a brief for the National Wildlife Federation et al. as amici curiae urging affirmance.

   Justice Blackmun

delivered the opinion of the Court.

Under the federal Migratory Bird Hunting Stamp Act, the Secretary of the Interior is authorized to acquire easements over small wetland areas suitable for migratory waterfowl breeding and nesting grounds. Although the State of North Dakota initially consented to the Secretary’s acquisition of easements over certain wetlands, the State now seeks to withdraw its consent and to impose conditions on any future acquisitions. This has led to the present litigation, for the State’s present posture raises the question whether the Secretary may proceed to acquire easements pursuant to North Dakota’s prior consent.

A

In 1929, the Migratory Bird Conservation Act (Conservation Act), 45 Stat. 1222, ch. 257, 16 U. S. C. §715 et seq., became law. By § 5 of that Act, 45 Stat. 1223, the Secretary of the Interior was authorized to acquire land “for use as inviolate sanctuaries for migratory birds.” Land acquisitions under the Conservation Act are subject to certain conditions: they must be approved in advance by the Migratory Bird Conservation Commission, §§2 and 5, 16 U. S. C. §§715a and 715d, and the State in which the land is located must “have consented by law to the acquisition,” § 7, 16 U. S. C. § 715f.

In 1934, in order to provide funding for land acquisitions under the Conservation Act, the Migratory Bird Hunting Stamp Act (Stamp Act), 48 Stat. 451, 16 U. S. C. §718 et seq., was enacted. Section 1 of the Stamp Act, 16 U. S. C. §718a, required waterfowl hunters to purchase migratory bird hunting stamps, commonly known as duck stamps. By §4, 16 U. S. C. §718d, the proceeds from the sale of the stamps were to form a special “migratory bird conservation fund” (conservation fund) to be used primarily to pay for “the location, ascertainment, acquisition, administration, maintenance, and development” of bird sanctuaries pursuant to the Conservation Act.

To hasten the acquisition of land suitable for waterfowl habitats, Congress amended the Stamp Act in 1958. The price of a duck stamp was increased, and, most important for our present purposes, the Secretary of the Interior was authorized to expend money from the conservation fund for a new type of property: “small wetland and pothole areas, interests therein, and rights-of-way to provide access thereto,” the small areas “to be designated as ‘Waterfowl Production Areas.’” Pub. L. 85-585, §3, 72 Stat. 487, 16 U. S. C. §718d(c). Such waterfowl production areas could be “acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act.” Ibid. Because these waterfowl production areas did not have to be maintained as sanctuaries, there was no need for them to be purchased outright; the Secretary was authorized to acquire easements prohibiting fee owners from draining their wetlands or otherwise destroying the wetlands’ suitability as breeding grounds.

Despite the 1958 amendments, however, the proceeds from duck stamp sales proved insufficient to acquire land at the rate Congress deemed necessary. Accordingly, a new source of income was provided through the Wetlands Act of 1961 (Loan Act), Pub. L. 87-383, 75 Stat. 813. Section 1 of this new Act originally authorized sums for appropriation not to exceed $105 million for a 7-year period. These sums were to be added to the conservation fund in the form of interest-free loans that were to be repaid out of duck stamp proceeds. In addition, § 3 of the Loan Act provided that no land could be acquired with money from the conservation fund unless consent had been obtained from the Governor or an appropriate agency of the State in which the land was located.

B

The principal waterfowl breeding grounds in the continental United States are located in four States of the northern Great Plains — North Dakota, South Dakota, Minnesota, and Montana. North Dakota, in particular, is rich in wetlands suitable for waterfowl breeding, and the Government’s acquisition of North Dakota land has been given high priority. See, e. g., H. R. Rep. No. 95-1518, p. 5 (1978); S. Rep. No. 94-594, p. 3 (1976).

For the most part, North Dakota has cooperated with federal efforts to preserve waterfowl habitats. Two years after the Conservation Act went into effect, the State, pursuant to § 7 of that Act, 45 Stat. 1223, 16 U. S. C. § 715f, gave its consent to the “acquisition by the United States ... of such areas of land or water, or of land and water, in the State of North Dakota, as the United States may deem necessary for the establishment of migratory bird reservations.” 1931 N. D. Laws, ch. 207, p. 360. By 1958, the United States had acquired more than 276,000 acres of North Dakota land for use as migratory bird refuges. Hearings on S. 2447 et al. before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., 79-81 (1958).

When the Loan Act was passed in 1961, the United States, through its Fish and Wildlife Service, promptly sought the necessary gubernatorial consent from Governor Guy of North Dakota. Between 1961 and 1977, Governor Guy and his successor, Governor Link, consented to the acquisition of easements covering approximately 1.5 million acres of wetlands. The consents specified the maximum acreage to be acquired within each county in the State, but did not list particular parcels. By 1977, the Fish and Wildlife Service had obtained easements covering about half of the total wetlands acreage authorized by the consents.

In the mid-1970’s cooperation between North Dakota and the United States began to break down. The sources of the dispute are not altogether clear; the State accuses the United States of misleading landowners from whom it purchased easements, and of reneging on some unrelated agreements relating to flood-control projects. See Record 19-20, 40; Brief for Appellant 30-33. In any event, North Dakota enacted legislation in 1977 restricting the United States’ ability to acquire easements over wetlands. 1977 N. D. Laws, ch. 204, p. 461, and ch. 426, p. 923.

The 1977 legislation affects the acquisition of wetlands easements in three major ways. First, §2 of ch. 204, codified as N. D. Cent. Code §20.1-02-18.1 (Supp. 1981), as amended by 1979 N. D. Laws, ch. 553, § 11, p. 1412, requires the Governor to submit proposed wetlands acquisitions for approval by the board of county commissioners of the county in which the land is located. The “federal agency involved” — here, the United States Fish and Wildlife Service — must provide the county with a “detailed impact analysis,” and the county, as well, is directed to prepare an impact analysis at federal expense. If the county does not recommend the acquisition, the Governor may not approve it. Next, §3 of ch. 204, codified as §20.1-02-18.2, as amended by 1981 N. D. Laws, ch. 258, p. 654, authorizes the landowner to negotiate the terms and time period of the easement acquired by the United States, to restrict the easement “by legal description to the land, wetland, or water areas being sought,” and to “drain any after-expanded wetland or water area in excess of the legal description.” Finally, §1 of ch. 426, codified as N. D. Cent. Code §47-05-02.1 (1978), restricts all easements to a maximum duration of 99 years. Because these restrictions have cast doubt upon the sufficiency of its title, the United States has acquired no easement over North Dakota wetlands since 1977.

In 1979, the United States brought suit in the United States District Court for the District of North Dakota, seeking a declaratory judgment that the 1977 state statutes were hostile to federal law in certain respects and could not be applied; that any easement acquired in violation of the 1977 statutes would nevertheless be valid; and that the legislative-consent provision of the Conservation Act, § 7, 45 Stat. 1223, 16 U. S. C. § 715f, did not apply to the acquisition of waterfowl production areas under the Stamp Act. The District Court granted summary judgment for the United States, App. to Juris. Statement 16a, and the United States Court of Appeals for the Eighth Circuit affirmed. 650 F. 2d 911 (1981). We noted probable jurisdiction over North Dakota’s appeal. 455 U. S. 987 (1982).

II

The protection of migratory birds has long been recognized as “a national interest of very nearly the first magnitude.” Missouri v. Holland, 252 U. S. 416, 435 (1920). Since the turn of the century, the Secretaries of Agriculture and of the Interior successively have been charged with responsibility for “the preservation, distribution, introduction, and restoration of game birds and other wild birds.” Act of May 25, 1900, 31 Stat. 187, 16 U. S. C. § 701. A series of treaties dating back to 1916 obligates the United States to preserve and protect migratory birds through the regulation of hunting, the establishment of refuges, and the protection of bird habitats. By providing for the acquisition of sanctuaries and waterfowl production areas, the Conservation Act and the Stamp Act play a central role in assuring that our Nation’s migratory birds will continue to flourish.

In the absence of federal legislation to the contrary, the United States unquestionably has the power to acquire wetlands for waterfowl production areas, by purchase or condemnation, without state consent. Paul v. United States, 371 U. S. 245, 264 (1963); Kohl v. United States, 91 U. S. 367, 371-372 (1876). Here,. however, Congress has conditioned any such acquisition upon the United States’ obtaining the consent of the Governor of the State in which the land is located. North Dakota concedes that its Governors, at various times since 1961, have consented to the acquisition of easements over 1.5 million acres of North Dakota wetlands. The issue before us is whether North Dakota may revoke its consent to the acquisition of further easements in the State, and whether North Dakota by statute may impose conditions and restrictions on the United States’ power to acquire easements.

A

North Dakota’s central argument is that the gubernatorial consent required by 16 U. S. C. § 715k-5, once given, may be revoked by the State at will. North Dakota reads §715k-5 to require not only that the Governor have consented to the acquisition of land for waterfowl production areas, but also that the Governor (and his successors in office) must continue to consent until the moment the land is actually acquired. Thus, although the United States has acquired easements over only half the acreage authorized by Governors Guy and Link, North Dakota asserts that it can terminate the United States’ power to acquire the remainder. The United States takes the position that § 715k-5 does not permit a State to revoke its consent at will; once consent has been given, “the role assigned to the state by Congress has been exhausted.” Brief for United States 24.

As with any case involving statutory interpretation, “we state once again the obvious when we note that, in determining the scope of a statute, one is to look first at its language.” Dickerson v. New Banner Institute, Inc., ante, at 110. See Transamerica Mortgage Advisors, Inc. v. Lems, 444 U. S. 11, 19 (1979). “Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Product Safety Comm’n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The language of §715k-5 is uncomplicated; it provides that money from the conservation fund shall not be used to acquire land “unless the acquisition thereof has been approved” by the Governor or the appropriate state agency. In this case, the acquisition of approximately 1.5 million acres of wetlands clearly “has been approved” by North Dakota’s Governors. Nothing in the statute authorizes the withdrawal of approval previously given.

Nor does the legislative history of §715k-5 suggest that Congress intended to permit Governors to revoke their consent. Before 1961, neither legislative nor gubernatorial consent was required prior to the acquisition of wetlands for waterfowl production areas. State legislative consent was a prerequisite to the acquisition of bird sanctuaries, § 715f, but waterfowl production areas were expressly exempted from this requirement, § 718d(c). Nonetheless, the United States followed an informal practice of obtaining agreement from the Governor or appropriate state agency before acquisition. The gubernatorial-consent provision was intended simply to incorporate this practice. 107 Cong. Rec. 17171 (1961) (remarks of Sen. Magnuson); id., at 17172 (remarks of Sen. Hruska). There is no indication in the legislative history or elsewhere that under this prior practice a Governor could withdraw consent already given.

In the absence of any evidence to the contrary, we must conclude that the consent required by § 715k-5 cannot be revoked at the will of an incumbent Governor. To hold otherwise would be inconsistent with the very purpose behind the Loan Act of which § 715k-5 is a part. The Loan Act was expressly intended to facilitate the acquisition of wetlands by making available an additional source of funds. The legislative history is replete with references to the need to preserve the Nation’s wetlands by bringing four to five million additional acres under federal control. See Hearings on S. 2187 et al. before the Merchant Marine and Fisheries Subcommittee of the Senate Committee on Commerce, 87th Cong., 1st Sess., 14-19, 23-24, 28-31, 33-39 (1961); S. Rep. No. 705, 87th Cong., 1st Sess., 2 (1961); H. R. Rep. No. 545, 87th Cong., 1st Sess., 1-2 (1961). Obviously, this acquisition could not take place overnight; careful planning over many years was anticipated. See S. Rep. No. 705, supra, at 2. If consent under §715k-5 were revocable, the United States’ ability to engage in such planning would be severely hampered. A detailed federal program involving the estimate of needs, setting of priorities, allocation of funds, and negotiations with landowners could be negated in an instant by a Governor’s decision that the politics of the moment made further federal acquisitions undesirable.

Our conclusion in this regard is strengthened by the fact that, at the time of its enactment, the gubernatorial-consent provision was not at all controversial. It was added by the Senate Committee on Commerce without explanation, see S. Rep. No. 705, supra, at 3, and was accepted by the House of Representatives without explanation or discussion, see H. R. Conf. Rep. No. 1184, 87th Cong., 1st Sess., 1 (1961); 107 Cong. Rec. 21184 (1961). The only discussion of the provision came on the Senate floor, when that body was assured that it did no more than formalize the existing practice of gaining state approval prior to acquiring land. We are unwilling to assume that Congress, while expressing its firm belief in the need to preserve additional wetlands, so casually would have undercut the United States’ ability to plan for their preservation. Clearly, Congress intended the States to play an important role in the planning process. But once plans have been made and the Governor’s approval has been freely given, the role of the State indeed is at an end. It is then up to the United States to choose how best to use its resources in putting its acquisition plans into effect.

Although it has been intimated that a Governor’s consent might become revocable if the United States were to delay unreasonably its land acquisitions pursuant to the consent, see Brief for United States 26; Tr. of Oral Arg. 35, we need not reach that issue here. In this case, there has been no unreasonable delay. Until North Dakota’s legislation interfered in 1977, the United States had pursued diligently its program of acquiring wetlands easements in North Dakota. The acreage fluctuated somewhat from year to year, but the acquisitions each year were substantial. In 1958, when Congress first authorized the Secretary of the Interior to acquire waterfowl production areas, it was generally anticipated that the United States’ acquisition program would take a minimum of 20 to 25 years to complete. The acquisition program had been underway for only 16 years in 1977, a time-span well within the limits contemplated by Congress.

B

We next consider North Dakota’s 1977 legislation, which purports to impose conditions on the United States’ power to acquire further wetlands easements. Because the statutes at issue raise somewhat different concerns, we discuss each in turn.

1. N. D. Cent. Code §20.1-02-18.1 (Supp. 1981). This statute sets out certain conditions that must be met “prior to final approval” of the acquisition of wetlands easements. The only sanction provided in §20.1-02-18.1 for failure to comply with its conditions is that consent for the acquisitions will be refused. North Dakota explains that this represents the State’s decision “to qualify or condition any consent to future acquisitions.” Brief for Appellant 33; see id., at 35.

We thus need not consider in this case whether the gubernatorial-consent provision, 16 U. S. C. §715k-5, permits North Dakota to impose these conditions on any consent it chooses to give in the future. At issue here is the status of acquisitions authorized by consents already given. We do not understand the State to argue that §20.1-02-18.1 imposes retroactive conditions on these prior consents. By its terms, the statute has no application to the acquisition of easements for which consent previously has been given, because nothing in the statute purports to limit the United States’ power to acquire land once “final approval” has been obtained. Moreover, any attempt to impose retroactive conditions clearly would be unavailing. We have ruled above that once the requisite gubernatorial consent has been obtained, it may not be revoked. Since 16 U. S. C. § 715k-5 does not permit North Dakota to revoke its consent outright, North Dakota may not revoke its consent based on noncompliance with the conditions set forth in N. D. Cent. Code §20.1-02-18.1 (Supp. 1981).

2. N. D. Cent. Code §20.1-02-18.2 (Supp. 1981). The United States does not challenge those portions of §20.1-02-18.2 that permit a landowner to negotiate the conditions of an easement and restrict the scope of the easement to a particular legal description. The United States does object, however, to that part of § 20.1-02-18.2(2) that permits a landowner to “drain any after-expanded wetland or water area in excess of the legal description in the . . . easement . . . .” The United States’ standard easement agreement contains a clause prohibiting the draining of after-expanded wetlands, see n. 6, supra, and §20.1-02-18.2(2) might be read to void such clauses even when agreed to by the landowner.

This Court addressed a similar situation in United States v. Little Lake Misere Land Co., 412 U. S. 580 (1978). In that case, the United States had exercised its authority under the Conservation Act to acquire land in Louisiana for use as a wildlife refuge. Mineral rights were reserved to the prior landowners for a period of 10 years, subject to extensions under certain conditions. A Louisiana statute barred the reversion of the mineral rights to the United States, and thus in effect extended the prior landowners’ mineral rights indefinitely.

Applying Clearfield Trust Co. v. United States, 318 U. S. 363 (1943), this Court concluded that because the United States’ acquisition of land under the Conservation Act “is one arising from and bearing heavily upon a federal regulatory program . . . , the choice-of-law task is a federal task for federal courts.” 412 U. S., at 592. The key factors in Little Lake Misere were that “[w]e deal[t] with the interpretation of a land acquisition agreement (a) explicitly authorized, though not precisely governed, by the Migratory Bird Conservation Act and (b) to which the United States itself [was] a party.” Id., at 594. Although the present case involves acquisitions under the Stamp Act rather than the Conservation Act, the federal interests at stake are the same. Thus, the choice of applicable law presents a federal question. Although state law may be borrowed if appropriate, “specific aberrant or hostile state rules do not provide appropriate standards for federal law.” Id., at 596.

Because the Louisiana statute at issue in Little Lake Misere was “plainly hostile to the interests of the United States,” id., at 597, the Court refused to apply it. In language equally applicable to the present case, the Court said:

“To permit state abrogation of the explicit terms of a federal land acquisition would deal a serious blow to the congressional scheme contemplated by the Migratory Bird Conservation Act and indeed all other federal land acquisition programs. These programs are national in scope. They anticipate acute and active bargaining by officials of the United States charged with making the best possible use of limited federal conservation appropriations. Certainty and finality are indispensable in any land transaction, but they are especially critical when, as here, the federal officials carrying out the mandate of Congress irrevocably commit scarce fundsi” Ibid.

To the extent that §20.1-02-18.2(2) authorizes landowners to drain after-expanded wetlands contrary to the terms of their easement agreements, we must conclude that it is equally hostile to federal interests and may not be applied to easements acquired under previously given consents. The United States is authorized to incorporate into easement agreements such rules and regulations as the Secretary of the Interior deems necessary for the protection of wildlife, 16 U. S. C. § 715e, and these rules and regulations may include restrictions on land outside the legal description of the easement. See Kleppe v. New Mexico, 426 U. S. 529, 546 (1976); Camfield v. United States, 167 U. S. 518, 525-526 (1897). To respond to the inherently fluctuating nature of wetlands, the Secretary has chosen to negotiate easement agreements imposing restrictions on after-expanded wetlands as well as those described in the easement itself. As long as North Dakota landowners are willing to negotiate such agreements, the agreements may not be abrogated by state law.

3. N. D. Cent. Code §17-05-02.1 (1978). Much the same analysis persuades us that this statute, which limits nonap-purtenant easements to a maximum term of 99 years, may not be applied to wetlands easements acquired by the United States under consents previously given pursuant to the Stamp Act. The United States’ commitment to the protection of migratory birds will not cease after 99 years have passed. This commitment has been incorporated into law for over 80 years and has been expressed in treaties since 1916, and the need to preserve migratory bird habitats is now no less than before.

To ensure that essential habitats will remain protected, the United States has adopted the practice of acquiring permanent easements whenever possible. Permanent easements are authorized by the gubernatorial consents given from 1961 to 1977, and the United States apparently has had no difficulty in negotiating permanent easements with North Dakota landowners. The automatic termination of federal wetlands easements after 99 years would make impossible the “[certainty and finality” that we have regarded as “critical when . . . federal officials carrying out the mandate of Congress irrevocably commit scarce funds.” United States v. Little Lake Misere Land Co., 412 U. S., at 597. We conclude that § 47-05-02.1 is hostile to federal interests and may not be applied. See 412 U. S., at 596; United States v. Albrecht, 496 F. 2d 906, 911 (CA8 1974).

HH I — I HH

The District Court and the Court of Appeals held that gubernatorial consent was not required prior to federal acquisition of wetlands easements, and that North Dakota’s 1977 legislation could not be applied to any easements acquired under the Stamp Act. We conclude that although gubernatorial consent is required, it has been given here and cannot be revoked. We also conclude that North Dakota’s 1977 legislation cannot restrict the United States’ ability to acquire easements pursuant to consent previously given. To this extent, we affirm the judgment below.

It is so ordered.

Justice O’Connor,

with whom Justice Rehnquist joins, concurring in part and dissenting in part.

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

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

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

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

Second, for the first time in this Court, North Dakota argues that even if it may not revoke its consent to easement acquisition, the United States has already acquired easements over acreage in excess of the consents that were given. The Court resolves this dispute by holding that North Dakota’s argument fails because “the easement agreements make clear . . . [that] the restrictions apply only to wetlands areas not to the entire parcels. . . . The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired.” Ante, at 311-312, n. 14.

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

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

       Section 5 was amended by § 5(a) of the Fish and Wildlife Improvements Act of 1978, Pub. L. 95-616, 92 Stat. 3113, with minor changes from the language quoted in the text. The sense of that language, however, was not altered. See 16 U. S. C. § 715d (1976 ed., Supp. V).

       The authorization loan limit was increased to $200 million by §2(a) of the Wetlands Loan Extension Act of 1976, 90 Stat. 189, 16 U. S. C. § 715k-3.

       Section 3 reads in relevant part:

        “Provided further, That no land shall be acquired with moneys from the migratory bird conservation fund unless the acquisition thereof has been approved by the Governor of the State or appropriate State agency.” 75 Stat. 813, 16 U. S. C. §715k-5.
      This proviso is in addition to the Conservation Act’s requirement, in its § 7, that the State “shall have consented by law” to the acquisition of land for inviolate bird sanctuaries. 45 Stat. 1223, 16 U. S. C. § 715f. The latter requires consent by the legislature; the former requires consent by the Governor or the “appropriate State agency.”

       When the glaciers retreated from the northern Great Plains at the end of the last ice age, they left in their wake thousands of shallow depressions. These depressions, known as prairie potholes, provide excellent breeding grounds for migratory ducks. In United States v. Albrecht, 496 F. 2d 906 (CA8 1974), the Court of Appeals described the characteristics of a prairie pothole region and its advantages for breeding ducks:
      “Each square mile of such land is dotted by approximately 70 to 80 potholes of three to four feet deep. . . . [On certain types of land] the potholes usually retain water through July or August, and therefore, provide an excellent environment for the production of aquatic invertebrates and aquatic plants, the basic foods for breeding adult ducks and their offspring. Essential to the maintenance of the land as a waterfowl production area is the availability of shallow water in these numerous potholes during the usually drier summer months. On the other hand, too much water, as a lake area with its deeper waters, does not provide the proper habitat for many species of duck to rear their young. Also, for the protection of their young, many species of duck prefer to be isolated in a small pothole, rather than to share a large lake.” Id., at 908-909.
      See generally Kantrud & Stewart, Use of Natural Basin Wetlands By Breeding Waterfowl in North Dakota, 41 J. Wildlife Management 243 (1977); Prairie Potholes: Draining the Duck Hatchery, National Wildlife (Oct.-Nov. 1981) p. 6.

       The consents were in written form prepared by the Fish and Wildlife Service. Each covered a separate county, and read substantially as follows:
      “I,-, Governor of the State of North Dakota, in accordance with the provisions of the Act of October 4, 1961, 75 Stat. 813, hereby grant approval to the acquisition of easements by the United States of America of any lands within the county of-, State of North Dakota, for Waterfowl Production Area purposes not to exceed- — acres of wetlands.” App. 3, 55.
      Some of the forms were signed by the North Dakota Game and Fish Commissioner as the authorized representative of the Governor. Id., at 4-5, 47.

       The typical easement agreement contained a legal description of a parcel of land, and imposed restrictions on all wetland areas within the parcel “now existing or subject to recurrence through natural or man-made causes,” including “any enlargements of said wetland areas resulting from normal or abnormal increased water.” The easements prohibit the owner from draining, filling, leveling or burning the wetlands, but permit farming and other activities whenever the wetlands “are dry of natural causes.” Id., at 14-16; see App. to Juris. Statement 6a-7a.

       North Dakota Cent. Code §20.1-02-18.1, as amended (Supp. 1981), provides:
      “Federal wildlife area acquisitions — Submission to county commissioners, opportunity for public comment, and impact analysis required. The governor, the game and fish commissioner, or their designees, responsible under federal law for final approval of land, wetland, and water acquisitions by the United States department of the interior, its bureaus or agencies, for waterfowl production areas, wildlife refuges or other wildlife or waterfowl purposes, shall submit the proposed acquisitions to the board of county commissioners of the county or counties in which the land, wetland, and water areas are located for the board’s recommendations. An affirmative recommendation by the board must be obtained prior to final approval of all such proposed acquisitions, whether by transfer of title, lease, easement, or servitude.
      “The board of county commissioners of the county affected, or a designee or designees of the board, shall, within twenty-one days of receipt of an acquisition proposal, physically inspect the proposed acquisition areas. The board shall give public notice of the date, hour, and place where the public may comment on the proposed acquisitions. The notice shall be published once each week for two successive weeks in the official newspaper of the county or counties in which the land and water areas are located. The notice shall set forth the substance of the proposed action, and shall include a legal description of the proposed acquisitions. The board of county commissioners shall make its recommendations within sixty days after receipt of an acquisition proposal.
      “A detailed impact analysis from the federal agency involved shall be included with the acquisition proposal for board of county commissioner consideration in making recommendations. Such analysis shall include, but shall not be limited to, the recreational and wildlife impacts. In addition, the county agent of the affected county or counties shall prepare an impact analysis for board of county commissioner consideration which shall include the fiscal, social, and agricultural impacts of the proposed acquisitions. The department of the interior shall reimburse the county or counties for any expenses incurred by the county agent in preparing the analysis. The analyses shall also be forwarded to the state federal aid coordinator office which shall furnish copies to all interested state agencies and political subdivisions, which agencies and political subdivisions shall have thirty days to review the analyses and return their comments to the state federal aid coordinator office. Upon expiration of the thirty-day period, all comments received by the state federal aid coordinator office shall be forwarded to the federal agency involved and to the state official or agency responsible for final acquisition approval. The federal agency may, after consideration of such comments, file a final impact analysis with the governor, the board of county commissioners, and any other state official or agency responsible for final acquisition approval.”

       North Dakota Cent. Code §20.1-02-18.2, as amended (Supp. 1981), provides:
      “Negotiation of leases, easements, and servitudes for wildlife production purposes. A landowner may negotiate the terms of a lease, easement, or servitude for land, wetland, or water areas sought to be acquired by the United States department of the interior, its bureaus or agencies, with moneys from the migratory bird conservation fund [16 U. S. C. 718d] for use as waterfowl production areas, wildlife refuges, or for other wildlife purposes. A landowner may:
      “1. Negotiate the time period of the lease, easement, or servitude being sought.
      “2. Restrict a lease, easement, or servitude by legal description to the land, wetland, or water areas being sought, and may drain any after-
      expanded wetland or water area in excess of the legal description in the lease, easement, or servitude.
      “Failure by the department of the interior, its bureaus or agencies, to agree to and comply with the above provisions shall nullify North Dakota’s consent to the federal Act under section 20.1-02-18.”
      As originally enacted, §20.1-02-18.2 also provided that any easement would terminate upon death of the landowner or a change in ownership.
      1977 N. D. Laws, ch. 204, § 3, p. 463. This provision was repealed by 1981 N. D. Laws, ch. 258, § 1, p. 654.

       Section 47-05-02.1 provides in relevant part:
      “Regulations governing easements, servitudes, or nonappurtenant restrictions on the use of real property. — Real property easements, servi-tudes, or any nonappurtenant restrictions on the use of real property, which become binding after July 1,1977, shall be subject to the regulations contained in this section. These regulations shall be deemed a part of any agreement for such interests in real property whether or not printed in a document of agreement.
      “2. The duration of the easement, servitude, or nonappurtenant restriction on the use of real property shall be specifically set out, and in no case shall the duration of any interest in real property regulated by this section exceed ninety-nine years.”

       In 1981, while this case was pending in the Court of Appeals, North Dakota added a further provision forbidding any new federal acquisition of land for a migratory bird reservation, and suspending the Governor’s authority to consent to any acquisition from the conservation fund. 1981 N. D. Laws, ch. 258, §2, p. 654, codified as N. D. Cent. Code §20.1-02-18.3 (Supp. 1981).

       The Court of Appeals held that neither legislative nor gubernatorial consent was required prior to the acquisition of waterfowl production areas, and that even if gubernatorial consent were required, it had been given here and could not be revoked. 650 F. 2d, at 916. The Court of Appeals also concluded that the challenged North Dakota statutes were void “[t]o the extent they encumber the federal statutes which provide for the acquisition of waterfowl habitat.” Id., at 918.

       Convention for the Protection of Migratory Birds, United States-Great Britain, 39 Stat. 1702, T. S. No. 628 (1916); Convention for the Protection of Migratory Birds and Game Mammals, United States-Mexico, 50 Stat. 1311, T. S. No. 912 (1936); Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their Environment, United States-Japan, [1974] 25 U. S. T. 3331, T. I. A. S. No. 7990 (1972); Convention Concerning the Conservation of Migratory Birds and Their Environment, United States-Union of Soviet Socialist Republics, [1976— 1977] 29 U. S. T. 4647, T. I. A. S. No. 9073 (1976). Habitat protection is specifically mandated by the treaties with the Soviet Union, Art. IV, 29 U. S. T., at 4653-4654, and Japan, Art. VI, 25 U. S. T., at 3335.

       Despite some confusion on this issue in the District Court and the Court of Appeals, see App. to Juris. Statement 11a; 650 F. 2d, at 916, the parties now agree that gubernatorial consent is required. See Brief for United States 16, and n. 11. Section 4 of the Stamp Act, as amended in 1958, permits the acquisition of waterfowl production areas “without regard to the limitations and requirements of the Migratory Bird Conservation Act.” Pub. L. 85-585, § 3, 72 Stat. 487, 16 U. S. C. § 718d(c). The Conservation Act, ch. 257, 45 Stat. 1222, is codified at 16 U. S. C. §§ 715-715k and 715n-715r. The District Court and the Court of Appeals read the gubernatorial-consent requirement — codified at § 715k-5 — as part of the Conservation Act, and concluded that it did not apply to the acquisition of waterfowl production areas. This reading of the statute, we have concluded, is incorrect. The gubernatorial-consent provision was enacted in 1961 as § 3 of the Loan Act. 75 Stat. 813. It has never been a part of the Conservation Act. Although the codifiers of the United States Code chose to place the gubernatorial-consent provision in the midst of the Conservation Act’s provisions, that choice, “made by a codifier without the approval of Congress . . . should be given no weight.” United States v. Welden, 377 U. S. 95, 99, n. 4 (1964). Because the gubernatorial-consent provision is not one of the “requirements of the Migratory Bird Conservation Act,” 16 U. S. C. § 718d(c), it does apply whenever waterfowl production areas are acquired with duck stamp funds.

       North Dakota advances two preliminary arguments which we find un--persuasive. The State first asserts that the gubernatorial consents given between 1961 and 1977 are invalid, because they do not specify the particular parcels to be acquired. The language of § 715k-5 does not suggest that parcel-by-parcel consent is nécessary, and the legislative history tells us only that § 715k-5 requires consent “as to the nature of the lands and the acreage involved.” 107 Cong. Rec. 17171 (1961) (remarks of Sen. Magnu-son). The county-by-county consents given by Governors Guy and Link satisfied this standard. They specified both the “nature of the lands . . . involved,” i. e., wetlands, and the maximum acreage to be acquired in each county.
      North Dakota next argues that the gubernatorial consents, if valid, have already been exhausted by acquisitions prior to 1977. This argument stems from the practice of including within each easement agreement the legal description of the entire parcel on which the wetlands are located, rather than merely the wetlands areas to which the easement restrictions, apply. If the entire parcels are counted toward the acreage permitted by the gubernatorial consents, the United States already has acquired nearly 4.8 million acres, far more than the 1.5 million acres authorized. The United States has conceded as much in its answers to North Dakota’s interrogatories. App. 49 (“The total acreage described in the permanent easements ... is 4,788,300 acres . . .”). As the easement agreements make clear, however, the restrictions apply only to wetlands areas and not to the entire parcels. The consents obtained by the United States authorize it to acquire up to 1.5 million “acres of wetlands.” See n. 5, swpra. The fact that the easement agreements include legal descriptions of much larger parcels does not change the acreage of the wetlands over which easements have been acquired.

       In the District Court and the Court of Appeals, North Dakota took the position that its prior consents had been revoked. See App. 72. At oral argument, North Dakota informed us that although the present Governor has not formally revoked the consents, he intends to engage in that formality if this Court holds that revocation is authorized. Tr. of Oral Arg. 28.

       Cf. United States v. Unzeuta, 281 U. S. 138, 142-143 (1930) (State may not revoke its consent to exercise of jurisdiction by the United States).

       Although the question of revoeability did not arise during the Senate debates, the Senate’s brief discussion of the gubernatorial-consent provision suggests that consent, once obtained, was expected to remain effective for as long as necessary. Senator Magnuson commented that he could not “conceive of any acreage of wetlands that it is intended to purchase in the next 3 or 4 years that has not already had the joint approval of all the States and everyone else involved.” 107 Cong. Rec. 17172 (1961). Senator Hruska, a member of the Migratory Bird Conservation Commission, confirmed that when the Commission met to approve land acquisitions, “[tjhere has already been processed before that time the area of agreement between the Federal agencies and the State agencies which makes the approval possible.” Ibid. Senators Magnuson and Hruska each envisioned precisely the sequence of events that has occurred here: the United States would develop a general plan for the acquisition of wetlands, the plan would be submitted to the Governor or appropriate state agency for approval, and, if approval was given, the United States would proceed to acquire wetlands pursuant to that approval — over the course of years, if need be.

       See United States Dept, of the Interior, Annual Report of Lands Under Control of the U. S. Fish and Wildlife Service (1974-1977) (Table 4, Waterfowl Production Areas); United States Dept, of the Interior, Annual Report of Lands Under Control of the Bureau of Sport Fisheries and Wildlife (1961-1973) (Table 4, Waterfowl Production Areas).

       See; e. g., H. R. Rep. No. 2182, 85th Cong., 2d Sess., 2 (1958); Hearings on H. R. 12006 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 85th Cong., 2d Sess., 5 (1958) (statement of Rep. Reuss); id., at 26 (testimony of Ross Leffler, Assistant Secretary for Fish and Wildlife, Dept, of the Interior); id., at 37 (statement of Daniel H. Janzen, Director of Bureau of Sport Fisheries and Wildlife, Dept, of the Interior); id., at 47 (statement of Rep. Metcalf); Hearings on S. 2447 et al. before a Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 85th Cong., 2d Sess., 85 (1958) (comments of Sen. Magnuson).
      Justice O’Connor finds this legislative history unpersuasive, primarily because the gubernatorial-consent provision was not added until 1961, three years after initial authorization of the acquisition of land for waterfowl production areas. Post, at 322. But as we have explained supra, at 313, the gubernatorial-consent provision was intended merely to formalize the prior practice of obtaining consent prior to the acquisition of any land under the Stamp Act.

       Compare United States v. Williams, 302 U. S. 46, 50 (1937) (federal statute, requiring parental consent prior to minor’s enlistment, does not confer right to impose conditions on consent), with, e. g., James v. Dravo Contracting Co., 302 U. S. 134, 146-147 (1937) (Article I, §8, cl. 17, of Constitution, requiring state consent prior to assumption of federal jurisdiction over land, does confer right to impose conditions on consent).

       Because this case concerns only the acquisition of easements under consents already given, we need not decide whether § 20.1-02-18.2(2) could be applied to easements acquired under consents North Dakota may choose to give in the future. See n. 20, supra.

        United States v. Burnison, 339 U. S. 87 (1950), on which North Dakota relies, is not to the contrary. In Bumison, the Court held that a State’s traditional power to control the testamentary transfer of property included the power to prohibit testamentary gifts to the United States. The Court stated specifically that its holding did not “affect the right of the United States to acquire property by purchase or eminent domain in the face of a prohibitory statute of the state.” Id., at 93, n. 14; see United States v. Fox, 94 U. S. 315, 320 (1877).

       Although N. D. Cent. Code § 47-05-02.1 (1978) applies to all nonappur-tenant easements, it was apparently enacted in response to dissatisfaction with the United States’ acquisition of permanent easements over wetlands. See Report of the Committee on Agriculture submitted to the North Dakota Legislative Council (Nov. 1976), reprinted at Record 22, 26; App. 39.

       We need not decide whether future consents could be limited so as to authorize the acquisition of 99-year easements only, or whether §47-05-02.1 could be applied to easements acquired under consents given in the future. See nn. 20 and 21, supra.

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

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