dissenting:
The district court dismissed plaintiffs’ claims on the grounds that plaintiffs had no standing to sue on the 1943 agreement among the defendants. Although the majority does not pass directly on the correctness of that ruling, it does conclude correctly that the district court was in error in failing to address the question of whether plaintiffs had standing to sue on the promises and inducements concerning the construction of the road made by TVA and government representatives both before and after the 1943 agreement. Nonetheless, the majority concludes that plaintiffs’ suit was properly dismissed because the promises and inducements alleged by plaintiffs “implicitly” incorporated the provisions of the 1943 agreement and that agreement was never breached. I disagree with those reasons, and I therefore respectfully dissent.
I.
Neither the plaintiffs’ complaint nor affidavits accompanying it support the majority’s conclusion that plaintiffs’ claims rest solely on the 1943 agreement. In their third claim for relief, not referred to by the majority in its opinion, plaintiffs allege that they or their predecessors in interest and others were directly advised, promised, and represented that upon the transfer of their lands and property that their rights of access to the cemeteries would be protected and preserved by the road herein above referred to and upon such material representation, made transfer of their property to the Defendant, TVA, upon the contract and promise of the government to complete the road. That failure to construct the road as promised constitutes a material breach of contract upon which the Plaintiffs or their predecessors were enticed to conveyance by deed of their lands to the TVA and as such are entitled to a recision of the agreement and a return of the property to the grantors or their successors in interest.
Nowhere in this claim for relief is reference made to the 1943 agreement. Rather, plaintiffs allege that they or their predecessors in interest were simply told by government agents, as part of the inducement to plaintiffs to convey their property to the TVA, that a road would be built. They thus advance a claim that, independently of any obligations that defendants may have had under the 1943 agreement to build an access road, defendants were obligated directly to plaintiffs to construct a road.
Plaintiffs’ allegations in this regard are supported by affidavits and by the letter of July 31, 1943, cited by the majority, in which a TVA supervisor indicated that those wishing to visit cemeteries isolated by the proposed reservoir should have to walk “a considerable distance until a road is constructed ..., which is proposed to be completed after the war has ended.”1 *1424Concluding as I do that plaintiffs allege an independent obligation running to themselves from defendants to construct an access road that is independent of the 1943 agreement, I do not believe that plaintiffs’ claims can be dismissed simply by finding that the 1943 agreement among defendants has not been breached.2
II.
Even if it may correctly be decided that all of plaintiffs’ claims are founded on the 1943 agreement as incorporated into the other promises and representations made to plaintiffs, I also disagree with the majority’s conclusion that there has been no breach thereof. The majority concludes that, since the 1943 agreement conditioned the Department of the Interior’s obligation to build the road on appropriation of funds for the purpose by Congress, so long as Congress has made no such appropriation, there has been no breach. We were told in argument, however, that money for the road has not been appropriated not because Congress declined to do so, but because the Department of the Interior decided not to ask for the appropriation.
While the “availability of funds” clause included in the 1943 agreement may be adequate to preclude any obligation on the part of the federal government to provide funds for the road, it does not seem to me that the clause can be read to relieve the Department of the Interior of any obligation even to seek appropriations for the road. If the Department of the Interior had determined what appropriation was necessary to build the road and had placed that amount in budget requests and the request had been rejected by Congress, that would be a different matter. Where, as here, the Department on its own has determined to renege on the contract, however, there may be grounds for finding the Department to have failed to fulfill its contractual obligations.3 I would conclude that plaintiffs adequately allege a failure by the Department of the Interior to meet its obligations under the 1943 agreement.4
Thus I would conclude that summary dismissal of plaintiffs’ complaint was not justified. I would reverse the judgment of *1425the district court and remand the case for further proceedings.
. The majority apparently believes that the letter itself indicated the contingent nature of the access road and was adequate to put the plaintiffs or their ancestors on notice of the provisions of the 1943 agreement making the federal government’s obligation to build the road contingent on congressional action to fund it. I cannot agree. First, the letter does not even mention, explicitly or implicitly, the 1943 agreement. There is no indication in the letter that its representations rested upon or were made contingent by an inter-governmental agreement. Second, it seems to me that the letter indicated, in simple terms, that a road would be built, though it was proposed not to undertake construction until after the war. It is, of course, true that the letter indicated some uncertainty as to when exactly the road would be completed, but that is much different than contingency as to whether the road ever would be built.
Of course, the Department of the Interior has now decided not to build the road at all. I can only conclude that this eventuality was not suggested by the language of the letter, nor, quite possibly, by other representations made to plaintiffs or their ancestors by government *1424agents, and thus that the federal government’s present position with regard to construction of the road contravenes its earlier statements.
. I do not mean to suggest that on the basis of the present record an obligation independent of the 1943 agreement running from defendants to plaintiffs necessarily could be found. That would require further evidentiary development by the district court to determine the nature of any representations made to plaintiffs or their ancestors, by whom any such representations were made and whether the representations . were within the authority of those making them, and the nature of plaintiffs’ reliance. I merely rest my dissent on the fact that plaintiffs allege such representations and claim relief thereon, and that the majority's reliance on analysis of the defendant’s obligations under the 1943 agreement thus does not adequately dispose of plaintiff's claims.
. I note that a request for funds for the road by the Department, unlike construction of the road itself, would not require specific appropriation by Congress. The exculpatory clause conditioning the government’s obligation to build the road on Congress’s appropriating money thus would not be relevant to establish a condition precedent to the Department’s obligation to seek funds from Congress to build the road.
It seems that an obligation on the part of the Department to seek funds from Congress for the road was implicit in the contractual terms. Certainly undertakings of any type whatsoever by the executive would be rendered meaningless if we were to conclude that, upon a change of official position, the executive departments could with impunity reconsider a contractual undertaking and never so much as seek to obtain adequate funding for it.
. This conclusion does not rest on an estoppel theory. No reference outside of the 1943 agreement is necessary to establish that the Department of the Interior was obligated to seek funding for the undertakings agreed to in the contract. That obligation arises by implication from the language of the agreement. I thus do not believe that the line of decisions which have indicated that the government may not be es-topped except possibly in the most extreme instances, e.g., Heckler v. Community Health Services of Crawford County, Inc., — U.S. -, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984), Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947), are relevant to the proper resolution of plaintiffs’ claims that are founded on the 1943 agreement.