"Basically, the question in each case is whether This analysis has been repeated in many cases, Golden The question raised by the complaint is substantial in law. Apart from the property interest of the United States in the Canal, and supporting structures, housing areas, railroads, government buildings and the like, this Court in Wilson v. Shaw, 204 U.S. 24, 33, 27 S.Ct. 233, 235 (1907) held that the Zone is itself a possession of the United States, the 1903 treaty being described in 1948 as a lease "extending until agreement for abrogation or unilateral abandonment by the United States", Vermilya-Brown Co. v. Connell, 335 U.S. 377, 383-4, 69 S.Ct. 140, 144, Acc. U.S. v. Husband R. (Roach), 453 F.2d 1054 (5 Cir. 1971) cert. den. 396 U.S. 935 (1972), Lucas v. Lucas, 232 F.Supp. 466 (D.C.C.Z., 1964) Huasteca Petroleum Co. v. United States, 14 F.2d 495, (E.D. N.Y. 1926), 26 Op. A.G. 376 (1907). Starting at least with United States v. Fitzgerald, 40 U.S. 785, 15 Pet. 407, 421 (1841), it has many times been held that the power to dispose of property of the United States is exclusively in the competence of Congress under the property clause, Osborne v. United States, 145 F.2d 892 (9 Cir. 1944), Alabama v. Texas, 347 U.S. 272, 74 S.Ct. 481 (1951), Tugade v. Hoy, 265 F.2d 63 (9 Cir. 1959). The power so given to Congress is "unlimited", Sierra Club v. Hickel, 433 F.2d 24, 28 (9 Cir. 1970) aff'd 405 U.S. 727, 92 S.Ct. 1361 (1972) and includes authority to prescribe the times, conditions, and mode of transfer and selection of the recipient, Gibson v. Chouteau, 13 Wall. 92, 99 (1872), Irvine v. Marshall, 20 How. 558 (1858), Emblen v. Lincoln Land Co., 184 U.S. 660, 664, 22 S.Ct. 523, 525 (1902). As the allegations of the attached complaint show, the controversy is also substantial in a factual sense, in that it involves the rights of the United States in approximately three hundred and twenty-five square miles of land, title to improvements who replacement value is estimated to be in excess of three and a half billion dollars, the repeal by implication of the Canal Zone Code and other statutes. which provide the laws for the Zone, the existence of its courts and the complex administrative organization which has heretofore been created by the Congress, and any Constitutional recourse by more than 3500 citizens resident in the Zone who will be involuntarily transferred to Panamanian jurisdiction. The issue also involves adverse legal interests in that question necessarily presents a choice between mutually. incompatible interpretations of Constitutional authority. by the branches of government represented by the parties plaintiff and defendant. Plaintiffs assert an exclusive Con stitutional disposal power in Congress. The defendants assert a concurrent Constitutional disposal power in the Executive, offering in principal support a summarization of authorities in an opinion of the current Attorney General, Op. A.G. August 11, 1977* to that effect. Of greater practical importance, however, to the question of adverse legal interests, is that the agreement with Panama has now been signed by the President and has been sent to the Senate for ratification as a treaty. The final question is whether the current situation is also one of sufficient immediacy and reality to warrant the issuance of a declaratory judgment at this time? Admittedly, three months ago it was judicially held that it was not. A prior action raised the same legal question in the United States District Court for the District of Columbia following President Carter's announcement that a treaty proposal to deliver the Canal and its citizenry to the Republic of Panama would be completed and presented to the Senate by June, 1977 (Civ. No. 77-0083). The District Court denied an injunction to maintain the status quo and dismissed the case without reaching the merits, holding that the action was premature, the nonstate plaintiffs lacked standing, and the issue was probably a political question. On appeal (Nos. 77-1226 and 771295) the District Court was affirmed on the stated ground that the matters presented were not ripe for consideration. On June 20, 1977, this Court declined review (No. 761576). The decisions of the lower courts are reprinted in that petition. Contra, 34 Op. A.G. 320, 322, (1924). The situation has now matured and the former areas of doubt have been resolved by publication of the proposed treaty language, (State Dept. Sel. Docs. Nos. 6, 6A, 6B). The signed agreement is now before the Senate for ratification, and that body has referred it to its Committee on Foreign Relations for review (123 Cong. Rec.S.15144, Sept. 16, 1977). The adverse positions of the parties have therefore been defined and the Senate is preparing to act on a treaty proposal which - if plaintiffs' contentions are valid - would be Constitutionally void regardless of ratification or rejection. Nor is it an objection to ripeness at this time that the proposed agreement does not become effective until six months after an exchange of ratifications. In a similar situation, as this Court pointed out in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612 (1976), ripeness exists where an "all but certain exercise" of authority can be shown, 97 S.Ct. at 681. CONCLUSION A proper case for the exercise of the Court's original jurisdiction is presented. The interest of the States is sovereign in character, the issues are defined, the problem is immediate, the subject matter is justiciable and substantial, and the relief prayed is a traditionally appropriate judicial method of resolving the question. Leave to file the complaint under the Court's original jurisdiction should be granted. |