dissenting:
One cannot get too upset over the result the court reaches. I have little doubt that eventually the Secretary can put this block, this stone, this worse than senseless thing in just about any museum he pleases and still justify his choice under the regulations. The Secretary ought to be able to act in such matters without much interference from us. The problem in the case is that, until pressed to acknowledge otherwise at oral argument before this court, the Secretary tried the case on the bold theory that he is free to exercise a discretion that is unencumbered by a statute and a regulation that bear directly upon the subject, even though he uses the statute to justify the ultimate, but not the mediate, actions he took in the case.
The appellants argue that the Secretary misinterpreted the regulations to allow issuance of a permit without making reasonable allowance for competing applications and that he misconstrued the statute to grant an automatic preference to the Smithsonian. Both of these allegations raise issues for judicial determination, yet neither seems to be addressed or determined by the majority opinion. I dissent, therefore, from failure to remand for further proceedings in the district court. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420, 91 S.Ct. 814, 825, 28 L.Ed.2d 136 (1971); Standard Oil Co. v. FTC, 596 F.2d 1381 (9th Cir. 1979), cert. granted, - U.S. -, 100 S.Ct. 1077, 63 L.Ed.2d 318 (1980); East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 531-35 (9th Cir. 1972).
Judicial review is made necessary only by the curious position taken by the Secretary.