Petition for Writ of Certiorari — Leslie Salt Co. v. Alameda Conservation Ass'n
Supreme Court brief1971
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FEB 27 1971
In the Supreme Court} of the. .... «.»:« |!
United States
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OCTOBER TERM, 1970 i
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No. LAO 9)
Leste Sat Company,
Petitioner,
vs.
ALAMEDA ConsERVATION AssociaTION, a California nonprofit
corporation, Heten L. Freeman, Evtnor B. Corrman, Doris
S. Caapman, Satty Krusi Potziarp, Dotores Dopp, WaLTER
S. Cooper, Luman C. Drake and HELENE Corker,
IPR LTT RE A PITT
Respondents. :
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Epear B. WasHBURN
3300 Crocker Plaza
San Francisco, CA 94104
Counsel for Petitioner
Of Counsel:
LANDELS, Rretey & Diamonp
3300 Crocker Plaza
San Francisco, CA 94104
SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105
Page
| RO RATERS URC MATEO SE Ld ok 1
PIER sasiesdSnilaccsintnaiastinan cach aaadehsbtmetiochacnae: 2
Questions Presented «................ececseeceeecoeeeee IANS EO ON ED 2
Statutes Involved pinclivaaadliad 2
Statement of The Case -..0.0.0...0....cceceecee-e- 2
Reasons for Granting The Writ .......2.............cscessceccosesececereceeeee 6
se
4.
Conelusion ......
SUBJECT INDEX
The Court of Appeals Has Adopted a Test for Deter-
mining Standing That Is Contrary to Expressions cf
This Court on the Same Subject and Is in Conflict
With Another Decision of the Same Court of Appeals
on the Same Question
The Court of Appeals Adopted a Test for Determining
Standing That Has Previously Been Limited to Chal-
lenges by Private Parties to Agency Action Based Upon
a Statute Giving “Aggrieved” Persons Standing ............
The Court of Appeals Has Created a New Cause of
Action in Favor of Private Individuals for Enforce-
ment of the Rivers and Harbors Appropriation Act
of 1899, 33 U.S.C. §§ 401, 403 and 406
Importance of the Decision of the Court of Appeals......
Appendices
10
TABLE OF AUTHORITIES CITED
CASES Pages
Association of Data Processing Service Organizations v.
Camp, 397 U.S. 150 (1970) .nciccccscccccccceccnecenns-s.. 7, 8, 12, 13
Barlow v. Collins, 397 U.S. 159 ( 1970) io! ae
Carolina Power and Light Co. vy. Southern Carolina Publie
Service Authority, 94 F.2d 520 (4th Cir. 1938), 304
eR Meets ARM Ene et Se AM ial PER IDaRI EN MUM ANG Seen 15
Citizens Committee for Hudson Valley v. Volpe, 425 F.2d
ws Ge Cir. 200) Oh. OF SF ne 11,13
Flast v. Cohen, 392 U.S. 83 (1968) o.o..ecccccccccccccoccocccceoccoeeeeeceeee. 7
Puente de Reynosa S.A. v. City of McAllen, 357 F.2d 43 (5th
Cir. 1966) ....... 15
Red Star Tow & Transportation Co. v. Dept. of Transpor-
tation of New Jersey, 423 F.2d 104 (3rd Cir. 1970) ........ 14
Scenic Hudson Preservation Conference v. FPC, 354 F.2d
608 (2d Cir. 1965) 384 U.S. 941 (1966) _ 11
Sierra Club y. Hickel, 433 F.2d 24 (9th Cir. 1970) ............ 8, 9, 10, 12
Tatum v. Blackstock, 319 F.2d 397 (5th Cir. BOE siicsisccicecsis 15
United States v. Perma Paving Co., 332 F.2d 754 (2d Cir.
cog OE EDN TOP RO Tote ET SO ae tee RD 14
U.S. v. Republic Steel Corp., 362 U.S. 482 CRP) vonesiseiz... 15
TABLE OF AUTHORITIES CITED iii
~ STATUTES Pages
5 U.S.C. §§ 701-706 .................. 10, 12
16 U.S.C. § 825(b) ne ect ae
30 Stat. 1151 dl ahd debek a sebdidicheellidindaasbeawanbanddethdbesieeiaiia 4, 6, 16
33 US.C.:
RESETS Ue SC Ou e RS RIT See a Fea 4, 5, 6, 10, 11, 12, 14, 15, 16
IN sii athaaibiciariocitittacckieak neha ciel 4, 5, 6, 10, 11, 12, 14, 15, 16
MUNIN Setaadosth Socdacauasiuiss tits peainihiads Sosa vieanccaaes 4, 5,6, 10, 11, 12, 14, 15, 16
§§ 401-406 saunas ....13, 14
5
In the Supreme Court of the
United States
OCTOBER TERM, 1970
Lestiz Satt Company,
Petitioner,
vs.
ALAMEDA ConsiRvATION AssociaTION, a California nonprofit
corporation, Heten L. Freeman, Evinor B. Corrman, Doris
S. Cuapman, Satty Krusr Potiarp, Dotores Dopp, WALTER
S. Cooper, Luman C. Drake and HELENE Corker,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Petitioner, Leslie Salt Company, prays that a writ of cer-
tiorari issue to review the judgment of the United States
Court of Appeals for the Ninth Circuit entered in the above
entitled case on January 19, 1971.
OPINIONS BELOW
The memorandum opinion and judgment of the District
Court for the Northern District of California is unreported
2
and is attached hereto in Appendix A, at pages 1 to 11.
The opinion of the Court of Appeals for the Ninth Circuit
is reported at ........ Fe ccccces (1971) and is incorporated
in Appendix A, at pages 12 to 32.
JURISDICTION
The judgment of the Court of Appeals for the Ninth
Cireuit was made and entered on January 19, 1971, and a
copy thereof is appended to this petition in Appendix A at
pages 32 to 33. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Does an individual plaintiff have standing to sue a
private party ¢>fendant in federal court for allegedly filling
portions of defendant’s lands in violation of the Rivers and
Harbors Appropriation Act of 1899, 30 Stat. 1151; 33 U.S.C.
$$ 401, 403 and 406, where plaintiff is seeking to prevent
injury to the environment rather than to himself.
2. Does the Rivers and Harbors Appropriation Act of
1899, 30 Stat. 1151, and in particular, 33 U.S.C. $$ 401, 403
and 406, afford a private individual, who has sustained no
special injury, a right of action in a federal district court
against another private party for violation of such sections.
STATUTES INVOLVED
The applicable portions of the Rivers and Harbors Ap-
propriation Act of 1899, 30 Stat. 1151, 33 U.S.C. $§ 401, 403
and 406, and the provisions of 1959 Cal. Stat. Chap. 1885, are
set forth in Appendix B at pages 34 to 38.
STATEMENT OF THE CASE
This action was commenced on February 1, 1968, in the
United States District Court for the Northern District of
6 Thenitctateh Soe
3
California by respondents (hereafter referred to as plain-
tiffs) who consist of the Alameda Conservation Association,
a nonprofit corporation having as one of its purposes the
protection of the public interest in the waters of the San
Francisco Bay, and eight individual members of that asso-
ciation. The individual plaintiffs are alleged to be residents
of the San Francisco Bay Area who live within six miles of
the Bay.’ Plaintiffs claim to bring the action on behalf of
themselves and all inhabitants of the State of California and
citizens of the United States.
The first amended complaint,? after describing the im-
portance of the San Francisco Bay, alleges that the peti-
tioner (hereafter referred to as defendant) Leslie Salt
Company claims ownership of 52,000 acres of swamp and
overflow lands, submerged lands and tidelands located
adjacent to the San Francisco Bay. The complaint recites
the enactment of 1959 California Statutes, Chapter 1885,
providing for an exchange of land between the State of
California and Leslie Salt Company for the purpose of
settling boundary disputes between the State and Leslie
Salt Company. Plaintiffs allege that 1959 California Stat-
utes Chapter 1885, violates the United States Constitution
and numerous federal statutes. By the time the complaint
was filed, the land exchange described in the statute had
been completed. Plaintiffs assert that Leslie Salt Company
has illegally filled thousands of acres of submerged lands
and tidelands of the Bay and, unless restrained, will con-
tinue to illegally fill large portions of San Francisco Bay
including portions of the property it received from the State
of California in the land exchange.
1. Two plaintiffs own property adjacent to the San Francisco
Bay and the remaining six reside on property located anywhere
fro:a 3,000 feet to six miles from the Bay.
2. A copy of the first amended complaint is set forth in Appen-
dix C, p. 39.
4
By virtue of their first amended complaint, plaintiffs
seek: (1) To enjoin defendants State of California and
Leslie Salt Company from completing the land exchange
authorized by 1959 California Statutes Chapter 1885; (2) To
declare such statute unconstitutional; (3) To enjoin Leslie
Salt Company from filling or obstructing the San Francisco
Bay in violation of the Rivers and Harbors Appropriation
Act of 1899, 30 Stat. 1151, 33 U.S.C. s$ 401, 403 and 406;
(4) To compel Leslie Salt Company to remove thousands
of acres of fill from former submerged and tidelands of
the San Francisco Bay which were allegedly filled without
obtaining a permit from the Army Corps of Kngineers as
required by 33 U.S.C. $§ 401 and 403; (5) To secure a
declaration of the rights of the inhabitants of the State of
California and of the citizens of the United States that
lands owned by Leslie Salt Company are subject to a public
trust in the nature of waterways and wildlife areas; (6) And
to impanel a three-judge court.
No injury. of any sort is alleged to have been sustained
by plaintiff Alameda Conservation Association. The eight
individual plaintiffs claim that as a result of the alleged
illegal activities of Leslie Salt Company they have sustained
injury in the nature of the destruction of fisheries and
wildlife in the San Francisco Bay and the alteration of the
flushing characteristics and the climate cooling effect of the
Bay. The plaintiffs do not claim any additional injury which
would be special to themselves or in any respect different
from the environmental effects of Leslie Salt Company’s
alleged activities on every other individual in the San
Francisco Bay Area.?
3. The court of appeals found that plaintiffs residing within six
miles of the San Francisco Bay had standing. This Court may take
judicial notice of the fact that several million persons reside within
six miles of the San Francisco Bay.
5
Neither the Secretary of the Army, the Chief of the Army
Corps of Engineers nor any other federal officer or agency
authorized by law to administer 33 U.S.C. §§ 401, 403 and
406, has heen joined as a defendant. Plaintiffs do not seek to
review any administrative determination made by the Secre-
tary of the Army or the Chief of the Army Corps of Engi-
neers, pursuant to 33 U.S.C. §§ 401, 403 and 406, concerning
any application of Leslie Salt Company for authorization
to fill portions of its properties, nor do they seek to compel
the Secretary of the Army, the Chief of the Army Corps
of Engineers or the United States Attorney General to en-
force the provisions of 33 U.S.C. §§ 401, 403 and 406 against
Leslie Salt Company.
Defendants moved to discuss the action and to discharge
two previously issued orders to show cause. On April 2,
1968, the district court granted defendants’ motion to dis-
miss the complaint for failure to state a claim upon which
relief could be granted; discharged the orders to show
cause and denied plaintiffs’ request for a three-judge
court.4 The memorandum opinion of the District Judge
indicates that the primary basis for his decision was that
plaintiffs lacked standing to sue in federal court.
The plaintiffs appealed to the United States Court of
Appeals for the Ninth Circuit. On January 19, 1971, that
court, in three separate opinions, reversed the decision of
the district court and remanded the case. The court of
appeals held as follows:
4. The district court, prior to rendering its opinion, requested
the United States Attorney to make inquiry of the Corps of Army
Engincers concerning possible interest of the United States in the
subject matter of the action pursuant to the Rivers and Harbors
Appropriation Act of 1899 (33 U.S.C. §§ 401, 403, 406). Although
the United States Attorney notified the Corps of Army Engineers,
no response was received from the Corps.
6
(1) The eight individual plaintiffs had standing to sue
Leslie Salt Company in federal court for illegally filling
portions of its lands where the only injury allegedly sus-
tained by plaintiffs was the same as that allegedly susiained
by every other individual in the San Francisco Bay Area,
to wit: destruction of fisheries and wildlife in the San Fran-
cisco Bay and alteration of the flushing characteristics and
the climate cooling effect of the Bay.
(2) 33 U.S.C. $§ 401, 403 and 406 afforded the individual
plaintiffs a private right of action against Leslie Salt
Company, and that the district court had jurisdiction over
such action even though plaintiffs did not claim special
injury to themselves and were not challenging any decision
of the Secretary of the Army or the Chief of the Army
Corps of Engineers granting Leslie Salt Company permits
to fill. |
(3) Plaintiff Alameda Conservation Association did not
have standing. Judge Hamley dissented to this aspect of the
decision.
(4) Plaintiffs failed to state a claim upon whieh relief
could be granted against the defendants other than Leslie
Salt Company.
(5) Plaintiffs were not entitled to a three-judge court.
REASONS FOR GRANTING THE WRIT
1. The Court of Appeals Has Adopted a Test for Determining
Standing That Is Contrary to Expressions of This Court on the
Same Subject and Is in Conflict With Another Decision of
the Same Court of Appeals on the Same Question.
The court of appeals held that any individual plaintiff
has standing to maintain a private action in federal court
against Leslie Salt Company, a private party defendant,
for filling portions of Leslie Salt Company’s own property
bordering the San Francisco Bay, in violation of the Rivers
and Harbors Appropriation Act of 1899; 30 Stat. 1151, 33
U.S.C. §$ 401 and 403, where the only resulting injury is
7
aesthetic or environmental. Each of the circuit judges
wrote a separate opinion on the question of the standing of
the individual plaintiffs. Judge Trask was of the opinion
that the four complainants who resided on property border-
ing the Bay or its lagoons had standing. He found it un-
necessary to decide the issue as to the remaining four
plaintiffs who resided on property ranging from 3,000 feet
to six miles from the Bay.°®
Judges Hamley and Merrill held that all eight individual
plaintiffs had standing, and their decision on this point
became the majority view of the court. The majority did
not relate their conclusion regarding standing te plaintiffs’
ownership of property in the vicinity of the San Francisco
Bay, or to special injury to plaintiffs or their property.
Judge Hamley based his decision upon the public nature
of the San Francisco Bay and concluded that any individual
who claimed that activities of another party affected the
environmental quality of the Bay had standing. Judge
Merrill, on the other hand, determined that an individual
has standing if his relationship to the Bay is such that his
aesthetic, recreational or environmental interests will be
affected by injury to the Bay.
Petitioner is mindful of the recent decisions of this Court
expanding the concept of standing in taxpayers’ suits main-
tained in federal court (Flast v. Cohen, 392 U.S. 83 (1968) )
and in the area of administrative action. (Association of
Data Processing Service Organizations v. Camp, 397 U.S.
150 (1970): and Barlow v. Collins, 397 U.S. 159 (1970)).
Although this Court has enlarged the class of persons who
5. The difference between plaintiffs who reside on property ad-
joming the Bay or its lagoons and those who do not is of little
significance. The complaint makes no distinction between the type
of injury that was sustained by any of the individual plaintiffs
which allegedly consists of destruction of fisheries and wildlife in the
San Francisco Bay and alteration of the flushing characteristics of
the Bay affecting the climate around them.
8
may challenge administrative action, the concept of stand-
ing remains intact and requires that individuals demon-
strate that the challenged action has caused them injury
in fact, economic or otherwise, and that the interest they
seek to protect is arguably within the zone of interest to be
protected or regulated by the statute or constitutional
guarantee in question. Association of Data Processing
Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970) ;
Barlow v. Collins, 397 U.S. 159 (1970).
The court of appeals, however, has virtually abandoned
all concepts of standing in the area of private suits. By
finding that a general allegation of aesthetic or environ-
mental injury is adequate, the court has done away with
the requirement that the plaintiffs demonstrate injury in
fact. Likewise, by expanding the zone of interest protected
to anyone who is concerned with the protection of the en-
vironmental benefits derived from the San Francisco Bay,
the court has broadened the spectrum of individuals who
are arguably within the relevant zone to such an extent
that the requirement is meaningless.
The decision of the court of appeals, in addition to being
contrary to the principles established by this Court in
Association of Data Processing Service Organizations v.
Camp, 397 U.S. 150 (1970), and Barlow v. Collins, 397 U.S.
159 (1970), is in conflict with its own decision on the same
point in Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970) ;
(petition for cert. granted February 22, 1971, docket No.
939.) There, the court held that the Sierra Club did not
have standing to challenge decisions of the Secretary of the
Interior and Secretary of Agriculture to issue a permit
for implementation of a plan proposed by Walt Disney
Productions, Ine. for a large scale commercial recreational
development near the Mineral King Valley in the Sequoia
National Forest. In holding that the interest and involve-
9
ment of the Sierra Club in recreational, conservational and
environmental matters was not sufficient to confer standing
upon it, the court pointed out that the Sierra Club did not
allege that any of its property would be damaged or that
its members were endangered or that its status would be
threatened. The gist of the Sierra Club’s complaint was
that the activities under attack would adversely affect the
environment rather than itself.
As in Sterra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970),
(petition for cert. granted February 22, 1971), plaintiffs
here are not claiming special injury to themselves or their
property. Instead they are seeking to protect the environ-
mental benefits derived from the San Francisco Bay. Since
plaintiffs’ interest in the controversy is no different from
that of the Sierra Club. it is impossible to harmonize the
Ninth Cireuit’s decision here with that in Sierra Club v.
Hickel. The court held that the Sierra Club failed to
show that it was sufficiently “aggrieved” or “adversely.
affected” by defendant’s actions to confer standing upon
it because it did not allege that its property would be dam-
aged, its members endangered, or its status threatened.
However, none of the plaintiffs here claim that their prop-
erty would be damaged or that they would be personally
endangered or threatened by Leslie Salt Company’s activi-
ties. They likewise have not demonstrated that their inter-
ests would be adversely affected to such an extent that
they have standing to sue.
This Court has justed granted certiorari in Sierra Club
v. Hickel, 433 F.2d 24 (9th Cir. 1970) (petition for cert.
granted February 22, 1971), and its ultimate decision in
that case will undoubtedly have a direct impact upon the
court of appeals’ decision here. However, there are two
factors that are present in Sierra Club v. Hickel, supra
which will prevent this Court’s decision there from being
10
determinative of the question presented here. First, the
plaintiff in Sierra Club v. Hickel, supra, is challenging
agency action in a suit against the federal agencies involved.
Secondly, as a result of the challenge to agency action, the
provisions of the Administrative Procedure Act, 5 U.S.C.
§§ 701-706, apply. Section 10 of the Administrative Proce-
dure Act therefore provides a statutory basis for plaintiff
Sierra Club’s contention that it has standing as a “party
aggrieved” within the meaning of the act. Here, plaintiffs
are not challenging any agency action or inaction. On the
contrary, they are seeking to enforce the provisions of 33
U.S.C. §§ 401 and 403 in an action against a private party
without joining the federal agencies responsible for ad-
ministering such sections. The Administrative Procedure
Act does not apply here. As a result, there is no statutory
basis for plaintiffs being afforded standing as “parties
aggrieved.”
In granting certiorari in Sierra Club v. Hickel, supra,
this Court has recognized the importance of resolving the
question of who has standing to assert environmental claims
against a federal agency where there is a statute which
affords standing to “parties aggrieved.” The question of
who has standing to assert environmental claims against
a private party where there is no statute which provides a
basis for plaintiff’s standing to sue is of equal importance.
Tt is this latter question which is presented here and should
be decided by this Court.
2. The Court of Appeals Adopted a Test for Determining Stand-
ing That Has Previously Been Limited to Challenges by Private
Parties to Agency Action Based Upon a Statute Giving
“Aggrieved" Persons Standing.
The court of appeals has erroneously applied a test for
determining standing that has previously been limited to
"aaa,
11
situations where the plaintiff properly classifies as an
“aggrieved” person within the meaning of a statute which
specifically authorizes such a person to challenge agency
action. Citizens Committee for Hudson Valley v. Volpe, 425
F.2d 97 (2d Cir. 1970), cert. denied, 91 S. Ct. 237; Scenic
Hudson Preservation Conference v. FPC, 354 F.2d 608 (2d
Cir. 1965), cert. denied, 384 U.S. 941 (1966). However,
plaintiffs are not challenging any agency action and have
not made the Secretary of the Army and the Chief of the
Army Corps of Engineers, who are designated by 33 U.S.C.
§§ 401, 403 and 406 to implement such sections, parties to
this litigation.
In Citizens Committee for Hudson Valley v. Volpe, supra,
the court of appeals held that various conservation groups
had standing to challenge a decision of the Secretary of
the Army granting a permit pursuant to 33 U.S.C. §§ 401
and 403 to fill portions of the Hudson River solely because
the Administrative Procedure Act (5 U.S.C. §§ 701-706)
provided a statutory basis for review of the agency deci-
sions under attack by “aggrieved” persons. The court held
that plaintiffs were “aggrieved” persons within the meaning
of the act. The same decision was reached in Scenic Hudson
Preservation Conference v. FPC, 354 F.2d 608 (2d Cir.
1965), cert. denied, 384 U.S. 941 (1966), where the same
court of appeals held that plaintiffs there were persons
“aggrieved” within 16 U.S.C. § 825(b) (The Federal Power
Act) and were therefore entitled to challenge an FPC
decision directly affecting their interests.
There is no basis for finding that plaintiffs here have
standing because they are persons “aggrieved.” Application
of such a test for determining standing requires specific
statutory authority which is totally lacking. The Rivers and
Pt RR le OE te ee BRR SOI ENR ne) ole nt at ne ee ee
12
Harbors Appropriation Act of 1899 (33 U.S.C. §§ 401-406)
does not contain any provision permitting “aggrieved” per-
sons to challenge agency action. Moreover, since plaintiffs
here are not challenging any agency decision or any failure
of the agency to act, the provisions of the Administrative
Procedure Act enabling “aggrieved” persons to challenge
an agency decision do not apply.
To the extent that the court of appeals has afforded
plaintiffs standing by virtue of its application of the
“private attorneys general” rule, its decision is in conflict
with decisions of this Court and other courts of appeals on
the same question. The Ninth Circuit has previously ex-
pressly refused to apply the “private attorneys general”
rule in the absence of a specific statute conferring on a
nonofficial person, or a group of nonofficial persons,
authority to bring a suit. Sierra Club v. Hickel, 433 F.2d 24
(9th Cir. 1970) (petition for cert. granted February 22,
1971). However, by affording the eight individual plaintiffs
standing to enforce the provisions of 33 U.S.C. §§ 401, 403
and 406 against Leslie Salt Company, the court has effected
that very result here. The court of appeals has permitted
plaintiffs to substitute themselves in the place of the federal
officials who are specifically authorized to enforce the
statute even though there is no statutory provision con-
ferring that right upon them.
This Court in Association of Data Processing Service
Organization, Inc. v. Camp, 397 U.S. 150 (1970) has reeog-
nized that the “private attorneys general” rule is limited
to those situations where there is an explicit provision in a
regulatory statute conferring standing. The statute most
frequently relied upon is the Administrative Procedure
Act, 5 U.S.C. $§ 701-706, in that it specifically permits per-
AE A CRY NRO SR
Er — ——
13
sons “aggrieved” by agency action to challenge such action
in the courts. However, there is no statute that is applicable
here that brings the “private attorneys general” doctrine
into play.
As pointed out by the Second Circuit in Citizens Com-
mittee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.
1970), cert. denied, 91 S.Ct. 237, the Rivers and Harbors
Appropriation Act of 1899 (33 U.S.C. §§ 401-406) does not
contain any specific provision that would authorize applica- °
tion of the “private attorneys general” doctrine. Likewise,
as mentioned above, plaintiffs cannot rely upon the “ag-
grieved” persons provisions of the Administrative Proce-
dure Act as statutory authority for allowing suits by private
attorneys general since they are not challenging any agency
action.
Since there is no statute which would sustain plaintiffs’
standing on the basis that they are “aggrieved” persons
within the meaning of an applicable statute or that they may
prosecute this action as “private attorneys general”,
plaintiffs must satisfy the requirements of this Court con-
cerning standing. This Court in Association of Data Proc-
essing Service Organizations v. Camp, 397 U.S. 150 (1970),
held that a plaintiff must allege that the challenged action
has caused him injury in fact, economic or otherwise, and
must assert an interest that is arguably within the zone of
interests protected by the statute or constitutional guar-
antee in question. However, as pointed out earlier in this
petition, the court of appeals has determined that a differ-
ent test applies where the only damage involved is injury
to the environment. The court has eliminated the require-
ment that plaintiffs sustain injury in fact by permitting
plaintiffs to assert injury to the environment rather than
to themselves or their property. The court has similarly
abandoned the requirement that plaintiffs be within the
14°
zone of interests protected by the statute in question by
expanding the zone to such an extent that it includes anyone’
who alleges any interest, however remote, in the San
Francisco Bay.
3. The Court of Appeals Has Created a New Cause of Action
in Favor of Private Individuals for Enforcement of the Rivers
and Harbors Appropriation Act of 1899, 33 U.S.C. §§ 401,
403 and 406.
The court of appeals has held that a private cause of
action exists in favor of plaintiffs over which the federal
district court has jurisdiction for the alleged violation of
33 U.S.C. §§ 401 and 403 by Leslie Salt Company.
33 U.S.C. § 406 provides that 33 U.S.C. §§ 401 and 403
are to be enforced by either criminal proceedings or injune-
tive action instituted under the direction of the Attorney
General of the United States. There is no reference in the
statute to a private cause of action for its enforcement.
Although there is considerable disagreement between the
circuits concerning the rights of private parties under 33
U.S.C. §s§ 401, 403 and 406, petitioner has found no court
of appeals decision holding that a private cause of action
exists in favor of a private individual against another
private party for violation of such sections absent a showing
of special injury. The Seeond Cireuit has stated that the
United States is the primary beneficiary of the Rivers and
Harbors Appropriation Act of 1899 (33 U.S.C. $$ 401-406),
and has expressly refused to decide whether or not the act
affords any private person a cause of action for its viola-
tion, regardless of whether he has sustained special injury.
United States v. Perma Paving Co., 332 F.2d 754 (2d Cir.
1964). On the other hand, the Third Cirenit in Red Star
Tow and Transportation Co. v. Department of Transporta-
tion of New Jersey, 423 F.2d 104 (3rd Cir. 1970), held that
15
$$ 401 and 403 do not create a civil cause of action in favor
of private parties against other private parties. The Fourth
and Fifth Circuits have held that no private individual
may assert a violation of §§ 401 and 403 against another
absent a showing of special injury. Carolina Power and
Light Co. v. South Carolina Public Service Authority, 94
F.2d 520 (4th Cir. 1938), cert. denied, 304 U.S. 578; Tatum
v. Blackstock, 319 F.2d 397 (5th Cir. 1968); Puente de
Reynosa 8.A. v. City of McAllen, 357 F.2d 43 (5th Cir.
1966). The decision of the court of appeals here is clearly
in conflict with the decisions of other courts of appeals since
plaintiffs do not contend that they have sustained any
special injury.
This Court in Wyandotte Transportation Co. v. United
States, 389 U.S. 191 (1967) and United States v. Republic
Steel Corp., 362 U.S. 482 (1960) held that the provisions of
the Rivers and Harbors Appropriation Act of 1899, 30
Stat. 1151, et seq., as amended, 33 U.S.C. § 401, et seq., which
provide that the act is to be enforced by either criminal
proceedings or injunctive action initiated by the United
States Attorney General, do not foreclose the Attorney
General from bringing an action for damages sustained by
the United States by reason of removing an obstruction
existing in navigable waters in violation of the act. How-
ever, the issue as to whether or not a given statute limits
the remedies available to the Attorney General, who is
specifically authorized by the statute to enforce it, is
entirely different from the question as to whether or not
a statute, which specifically provides that it is to be enforced
by the Attorney General, creates a cause of action in
private parties for its violation.
This Court has not decided whether or not the Rivers
and Harbors Appropriation Act of 1899, as amended, and
DEP DOLE IE ANE LO TIA LCRA REI EAS OA Pen EA
16
in particular 33 U.S.C. $$ 401, 403 and 406, creates a
private cause of action against other private parties for
its violation and if so, whether such cause of action exists
without a showing of special injury to the plaintiff. No
court of appeals, except the Ninth Cireuit in the decision
under consideration, has held that such a cause of action
exists absent a showing of special injury. The question as
to whether or not such a cause of action exists, and if so,
under what circumstances it may be asserted, is of such
significance that it should be decided by this Court.
4. Importance of the Decision of the Court of Appeals.
The court of appeals has decided two important tederal
questions. It has expanded the concept of standing so far
in the area of environmental claims as to effectively aban-
don the concept in its entirety. In so doing, the court has
rendered a decision on the question of standing that is in
conflict with decisions of this Court and other courts of
appeal on the same question. As a result of the court’s
decision, an individual citizen need only show some connec-
tion with the general geographic area where the problem
exists and claim that the illegal activity offends his aesthetic
sensibilities or some ill defined environmental interest in
order to utilize the federal courts as a forum to air his
grievances. He need not demonstrate any injury to himself
that differs in any respect from the publie at large.
In addition, the court of appeals in this case has recog-
nized a cause of action between private parties which here-
tofore lias not existed. Considering the hundreds of miles
of waters that are subject to the jurisdiction of the Seere-
tary of the Army by virtue of the Rivers and Harbors
Appropriation Act of 1899, 30 Stat. 1151, as amended, (33
U.S.C. $$ 401, 403 and 406) and the numerous projects that
must comply with the provisions of that act, recognition of
17
a private right to enforce the act has far reaching effects.
It is an important federal question which has not been, but
should be decided by this Court.
CONCLUSION
For the foregoing reasons, it is respectfully submitted
that the petition for a writ of certiorari be granted.
Respectfully submitted,
Epcar B. WasHBuRN
3300 Crocker Plaza
San Francisco, CA 94104
Counsel for Petitioner
Of Counsel:
LANDELS, RipLey & Diamonp
3300 Crocker Plaza
San Francisco, CA 94104
(Appendices Follows)
Appendix A
United States District Court
Northern District of California
Filed Apr 3 1968
James P. Welsh, Clerk
No. 48620.
Alameda Conservation Association, a California Non-Profit
Corporation, et al,
Plaintiffs,
Vs.
State of California, et al,
Defendants.
MEMORANDUM OF DECISION
Sweigert, J.
This is an action by the Alameda Conservation Associa-
tion and other individually named plaintiffs to enjoin the
State of California, Leslie Salt, and others from completing
an exchange of certain lands in the southerly portion of the
San Francisco Bay, and for a declaration that 1959 Statutes
of California, Ch. 1885 is in violation of the laws and Con-
stitution of the United States. .
Three matters are presently before the Court:
(1) An order to show cause, issued February 1, 1968,
by Judge Zirpoli, as modified by this Court on February 27,
1968 ;
(2) Plaintiff’s request for a three judge district court;
and
(3) Defendants’ motions to dismiss the amended com-
plaint.
The complaint, filed on February 1, 1968, was assigned
to this Court on February 8, 1968. Thereafter, leave was
2 Appendix
granted for plaintiff to file an amended complaint, and for
defendants to file motions to dismiss. Plaintiffs’ first
amended complaint, together with points and authorities,
and an affidavit of William Siri in support of the order to
show cause, were filed on February 19, 1968. Thereafter, on
February 28, 1968, defendants filed their motions to dismiss.
The matter came on for hearing on March 1, 1968, at the
conclusion of which the Court requested the United States
Attorney to make inquiry to the Corps of Army Engineers
concerning possible interest of the United States, if any,
pursuant to the Rivers and Harbors Act of 1899 (33 U.S.C.
$$ 401-406), in the subject matter of this action.
Thereafter, on March 15, 1968, upon being advised by
the United States Attorney, represented by Mr. David
Golay, Assistant United States Attorney, that the Washing-
ton office had not vet authorized response to this Court’s
inquiry, the Court continued the matter to March 22, 1968.
The later date was again continued upon the request of
plaintiffs’ counsel for medical reasons. On March 26, 1968,
the Court was again advised that the United States Attorney
in Washington had not yet approved the response to this
Court’s inquiry, and the case was submitted for decisioi:
upon the record.
The plaintiff Alameda Conservaticn Association is a non-
profit corporation having the protection of the public inter-
est in the waters of the San Francisco Bay as one of its
purposes. Hight other plaintiffs, individually named in the
complaint, allege that they own land adjacent to the San
Francisco Bay, or in close proximity thereto. (Complaint,
para. ITT)
The gist of plaintiffs’ first amended complaint is that the
waters of the San Francisco Bay are held in a “public trust”
for navigation and fisheries (para. VI, p. 5, lines 16-18) ;
Appendix 3
that 1959 Statutes of California, Chapter 1885 (Exhibit “A”
to the amended complaint) violates the California Constitu-
tion (Complaint para. X), and the United States Constitu-
tion and laws (Complaint, para. XIII) in that:
(1) It purports to delegate the power to release navi-
gable waters from the public trust without the consent of the
federal government, which is alleged to be required under
33 U.S.C. $$ 401, 403, and 406, and that the transfer is thus
in violation of the Commerce Clause of the Constitution of
the United States (para. XIII, p. 11);
(2) It violates See. 3 of the Act of Congress for the
admission of California into the Union (9 U.S. Statutes at
Large, 452, 453);
(3) It violates the 14th Amendment because it denies
plaintiffs their property rights in the use and enjoyment of
the Bay without due process of law; and,
(4) It is in violation of the Commerce Clause “in that the
federal government has expressed itelf as deeming the pro-
tection of fisheries and wildlife in navigable waterways to
be a matter of federal government concern.” (Para. XTII,
p. 12).
Statutes of California 1959, Ch. 1885 (amended com-
plaint, Ex. “A”), authorizes the State Lands Commission
to convey lands lying in the vicinity of the San Francisco
Bay southerly of latitude 37° 40’, to any person or corpora-
tion, in exchange for other parcels of land lying in the
same vicinity, upon a finding by the Commission:
(a) That such exchange is necessary in order to settle
and confirm the title of the State in and to the
parcels to be conveyed to it and to establish the
boundaries thereof ;
(b) that such exchange is in the interest of the promo-
tion of commerce, navigation and reclamation;
and,
4 Appendix
(c) that the value of the interests of the State in the
parcels of land to be conveyed by it is no greater
than the value of the interests to be acquired by
the State in such other parcels of land in such
exchange.
Section 3 of the above statute requires the Commission,
prior to any exchange of lands, to publish notice in a news-
paper of general circulation in each county in which any
lands proposed to be exchanged are located, and provides
that any affected city or county may, within thirty days
after the publication of the notice, request that a hearing
be held with respect thereto.
Defendants contend that plaintiffs have no standing to
raise the constitutionality of 1959 Statutes of California,
Chapter 1885.
The standing doctrine was first enunciated in the land-
mark ease of Frothingham v. Mellon, 262 U.S. 447 (1923) *,
an action by a federal taxpayer to restrain payments from
the U. S. Treasury to states which chose to participate in a
program created by the Maternity Act of 1921. The Court
held that plaintiff had no “standing” to challenge the stat-
ute on the ground that her interest in the federal revenue
was shared with millions of others and was comparatively
minute, indeterminable and fluctuating. The Court, noting
the disruptive effect of allowing unlimited judicial review
of appropriation and other statutes, concluded on p. 488,
as follows:
“We have no power per se to review and annul acts
of Congress on the ground that they are unconstitu-
tional. That question may be considered only when
the justification for some direct injury suffered or
threatened, presenting a justiciable issue, is made to
rest upon such an act. Then the power ‘exercised is:
that of ascertaining and declaring the law applicable
to the controversy. It amounts to little more than the
*The rule of Frothingham v. Mellon, i.e., that federal courts
will not entertain a taxpayer’s suit to enjoin the expenditure of
federal funds, is presently under review by the Supreme Court in
Flast v. Gardner, No. 416, 36 U.S. Law Week 3361, March 19, 1968.
Appendix 5
negative power to disregard an unconstitutional enact-
ment, which otherwise would stand in the way of the
enforcement of a legal right. The party who invokes
the power must be able to show not only that the
statute is invalid but that he has sustained or is imme-
diately in danger of sustaining some direct injury as
the result of its enforcement, and not merely that he
suffers in some indefinite way in common with people
generally.” (emphasis added).
While it is not clear whether the requirement of standing
arises from the so-called “cases and controversies” require-
ment of Art. ITI, Sec. 2 of the Constitution, or whether it is
a judicially created rule of self-restraint, the fact remains
that standing is a prerequisite to maintaining an action in
federal court. For an analysis of the cases involving the
standing rule, see Justice Frankfurter’s concurring opinion
in Anti-Facist Refugee Committee v. McGrath, 341 U.S.
123, 150-159 (1951).
It is now well established that the constitutionality of a
statute or ordinance may not be attacked by one whose
rights are not, or are not about to be adversely affected by
the operation of the statute. A showing only of such interest
in the subject of the suit as the public generally has, is not
sufficient to warrant the exercise of judicial power to
determine the constitutionality of a statute. See C.J.S.,
Constitutional Law, See. 76, pp. 226-236, citing, in the sup-
plement, Bryan v. Federal Open Market Committee, 235
F.Supp. 877 (D. Mont. 1964).
Further, the requirement of standing applies to actions—
such as the pending case—for declaratory ju:!gments (6A
Moore’s Fed. Prac. para. 57.11, p. 3051) and actions for
injunctions (7 Moore’s Fed. Prac. para. 65.17, p. 1680).
The Standing Rule, i.e., that the person seeking to raise
the question of a statute’s constitutionality must have
6 Appendix
sustained or must be in danger of sustaining, a direct
injury distinct from that suffered by the publie generally,
has been applied to a case similar to the one at bar.
In Pacific Inter-Club Yacht Association v. Morris, 197
F.Supp. 218 (N.D.Cal. 1960), appeal dismissed, 288 F.2d
886 (9th Cir. 1961), a boating association brought an action
against the District Director of the Army Engineers and
certain state and county officials to enjoin the building of
a bridge across a navigable waterway in such manner as
would obstruct navigation. The District Court, (Ifalbert,
D.J.,) held that the Court had no jurisdiction over the
action. The Court also discussed the question of whether
those plaintiffs had standing, on page 222, as follows:
“This case deals with the delicate problem of adjusting
relationships between the state and the federal govern-
ments. Plaintiff has shown no warrant in the statutes
for interference by a private suitor in what is essen-
tially an affair of the sovereigns. It is for Congress to
decide when its paramount power shall be brought into
play. ... At most, all that the allegations of plaintiff
can show is that the proposed bridge may be a public
nuisance. If such it be, it is for the public authorities to
abate such a nuisance. A private party could institute
such an action only if he could show special damage
to himself, thus in effect making it a private nuisance
as to him.’*
From the foregoing, it is clear that in order to maintain
the instant proceeding, which is essentially an attempt to
raise the constitutionality of 1959 Statutes of California,
Chapter 1885, plaintiffs must allege the danger, or threat-
*Cf. Levingston Shipbuilding Co. v. Ailes, 239 F.Supp. 775,
779-780 (E.D. Tex. 1965), holding that the plaintiffs would suffer
an injury special and peculiar in kind because of a bridge construe-
tion project similar to that involved in the Pacific Inter-Club Yacht
case, supra.
Appendix 7
ened danger of sustaining a specific injury to themselves
by the operation of such statute distinct from that suffered
by the public generally. This they have failed to do.
Of the eight individually named plaintiffs in the com-
plaint, para. ITT, only three (Chapman, Corker and Cooper)
own property which. borders on the bay, or which, as in
the case of Cooper, borders on a lagoon which is flushed by
the waters of the Bay.
The complaint contains no allegation with respect to any
direct or threatened injury to the person or property of
the individual plaintiffs that is different in degree or kind
from the injury, if any, accruing to all other residents of
the San Francisco Bay Area, from filling operations that
decrease the size of the Bay.
Plaintiffs’ allegations (that their health and enjoyment
will be affected by the filling of the Bay; that fisheries and
wildlife from which they personally benefit will be de-
stroyed; and that such filling will destroy the flushing char-
acteristics of the Bay and its climate cooling effect [com-
plaint, para. XV]) fail to show that they will be affected in
any manner differently than other inhabitants of the Bay
Area, Fiven those plaintiffs who allege ownership of real
property bordering on the Bay and its lagoons, fail to allege
damage to their persons or property that differs in degree
or kind from that damage, if any, accruing to other residents
of the Bay Area.
Nor does the plaintiff Alameda Conservation Associa-
tion have standing to raise the issues sought to be main-
tained herein, for its standing is, of course, dependent upon
the standing of its individual members.
Plaintiffs also allege that defendant Leslie Salt has en-
gaged in certain conduct without having first obtained
a permit as required by 33 U.S.C. $$ 401 and 403, com-
‘Yes
8 Appendix
monly known as the Rivers and Harbors Act of 1899. (Com-
plaint, para. XV).
However, specific provision is made by 33 U.S.C. § 406
for the enforcement of $s 401, 403, and 404 of the Act by
the Attorney General of the United States. In any event,
it is not necessary in this case to decide whether the remedy
provided by § 406 is exclusive because the Court has already
above held that plaintiffs have failed to allege direct or
special injury to themselves or to their property.
Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963), is
relied upon by plaintiffs for the proposition that private
parties may maintain an action to enforce 33 U.S.C. $$ 401-
406. Tatum, supra, involved an action by the owner of a
home, bordering on navigable waters, to enjoin filling opera-
tions that endangered his property. The defendant there
first constructed a pontoon bridge, but was ordered by the
Army Engineers to remove it. Plaintiff then brought an
action in the district court and obtained an injunction
against further filling operations pending a decision by the
Army Engineers on the question of whether such filling
would interfere with navigation.
On appeal, the Fifth Circuit held that the District Court
had not abused its discretion by granting the injunction.
On the question of standing, the Court of Appeals, noting
that the District Court had not passed upon the question,
held that the record, which indicated that filling would have
the effect of flooding part of plaintiffs’ land and would cause
silt to be deposited thereon, showed sufficient special injury
to plaintiff to give him standing.
The pending action, however, is clearly distinguishable
from Tatum for the reason that the plaintiff there alleged
the threat of direct, physical damage to his property that
would affect him specially because of the location of his
Appendix 9
land. Here, although three of the plaintiffs allege that they
either live on the border of the Bay or on the border of a
lagoon, there is no allegation of damage, either present or
threatened to their land or persons that is special to them
as a result of defendants’ conduct.
For the above reasons, the Court concludes that the com-
plaint fails to state a claim upon which relief can be granted.
The above conclusion does not leave plaintiffs and others
similarly situated without protection under the law from
unlawful acts with respect to bay-fill projects. The interest
of the public with respect to 1959 Statutes of California,
Chapter 1885, a statute enacted by legislative representa-
tives of the people, is protected by the provisions of § 3 of
said statute, which requires notice prior to any exchange
of land and, upon request by any affected city or county
(again, representatives of the people), a hearing. Further,
all matters affecting navigation and conservation are sub-
ject to the paramount power of the federal government if
and when it chooses to act.
Accordingly, it is hereby ordered that:
(a) the order to show cause previously issued herein be
discharged ;
(b) plaintiffs request for a three judge District Court be
denied ;
(c) the defendants’ motions to dismiss the complaint for
failure to state a claim for relief be granted; and
(d) these proceedings be dismissed.
Dated: April 2nd, 1968.
/s/ W. Sweicerr
United States District Judge
10 Appendix
United States District Court
For the Northern District of California
Firep Apr 19 1968
James P. Welsh, Clerk
CIVIL ACTION FILE NO. 48620
Alameda Conservation Association, a California Non-Profit
Corporation, Helen L. Freeman, Elinor B. Coffman, Doris
S. Chapman, Sally Krusi Pollard, Dolores Dodd, Walter S.
Cooper, Luman C. Drake, and Helene Corker, on behalf
of themselves and on behalf of all other inhabitants of the
State of California and of all other citizens of the United
States of America,
Plaintiffs,
VS.
State of California; Ronald Reagan, Governor of the State
of California; Thomas C, Lynch, Attorney General of the
State of California; Frank M. Jordan, Secretary of State
of the State of California; Robert H. Finch, Houston I.
Flournoy, and Gordon P. Smith, members of the California
State Lands Commission; N. G. Taylor, Deputy Attorney
General of the State of California; F. J. Hortig, Executive
Officer of the California State Lands Commission; Title
Insurance and Trust Company, and Leslie Salt Company,
Defendants.
JUDGMENT
This cause came on to be heard on motion of defendants
State of California and officers and officials thereof, Title
Insurance and Trust Company and Leslie Salt Company,
SOLANA: aah Stl el slaese 8 el She SEES WS
Appendix 11
said motion being to dismiss the action, and the Court hav-
ing granted the said motion, it is hereby
Ordered, Adjudged and Decreed that pursuant to the
Memorandum of Decision filed herein on April 3, 1968:
(a) The orders to show cause dated February 1, 1968,
and February 23, 1968, be discharged;
(b) Plaintiffs’ request for a three-judge District Court
be denied ; |
(c) The defendants’ motions to dismiss the complaint
for failure to state a claim upon which relief can be granted
be granted; and
(d) These proceedings be dismissed.
Dated: April 19th, 1968.
/s/ W. Sweicert
United States District Judge
Form of Judgment approved/disappro -d in accordance
with Rule 21 of the Northern District of California.
Approved
By /s/ James W. Funsten
Attorneys for Plaintiffs
12 Appendix
United States Court of Appeals
for the Ninth Circuit
No. 22,961
Alameda Conservation Association, et al.,
Appellants,
V.
State of California, et al.,
Appellees.
[January 19, 1971]
Appeal from the United States District Court
for the Northern District of California
Before: HAMLEY, MERRILL and TRASK,
Circuit Judges.
TRASK, Cireuit Judge:
The Alameda Conservation Association and eight of its
members appeal from the dismissal of their action brought
against the State of California, the Leslie Salt Company
and others in the District Court for the Northern District
of California.
The Association is a non-profit corporation having as one
of its purposes the protection of the public interest in the
waters of San Francisco Bay. The eight individual plaintiffs
are among its members.
By their First Amended Complaint the plaintiffs seek:
(1) to enjoin the defendants from completing a land ex-
Appendix | 13
change; (2) to declare 1959 California Statutes Chapter
1885 unconstitutional; (3) to enjoin Leslie Salt Company
from filling or obstructing the bay; (4) to secure a general
declaration of the rights of the people to the waterways
and wildlife areas of the bay; (5) finally, to impanel a
three-judge court.
The jurisdiction of the district court was invoked by the
complaint under:
“”.. (a) The Rivers and Harbors Appropriation Act of
1899, 33 U.S.C.A. Section 401, 403 and 406; (bh) Article
1, Section 8, Clause 3, of the United States Constitution,
commonly known as the Commerce Clause; (¢) Section
3 of the Act of Congress for the Admission of the
State of California into the Union, Volume 9%, U.S.
Statutes at Large, Pages 452 and 453; (d) The Swamp
Act, September 29, 1850, 9 U.S. Statutes at Large 520
[43 U.S.C.A. §§ 981 et seq.]; (e) The Act to Quiet
Land Titles in California, 14 United States Statutes
at Large, Chapter 218; and (f) Section 1 of the 14th
Amendment to the Constitution of the United States
of America [43 U.S.C. § 987].
_. .and upon Title 28 U.S.C. Sections 1331 and 1337.”
C.T. 11.
The defendants moved to dismiss the action and to dis-
charge two previously issued orders to show cause. The
district court on April 2, 1968, granted the defendants’
motion for failure of the complaint to state a claim upon
which relief could be granted and also denied the request
for a three-judge court. Jurisdiction in this court is based
upon 28 U.S.C. § 1291.
After describing San Francisco Bay and outlining its
importance, the complaint alleges that the defendant Leslie
Salt Company claims to be the owner of 52,000 acres of
submerged lands, tidelands, and swamp and overflow lands
Ta a i ES RNS —
14 Appendix
which Leslie conténds it holds free from any publie trust.
Plaintiff alleges that said claims are defective in several
respects which plaintiffs outline. The complaint then recites
the enactment of 1959 California Statutes, Chapter 1885,
providing for exchanges of land under specified conditions
and alleges that an exchange of lands of San Francisco Bay
is pending thereunder between the State of California and
the Leslie Salt Company, Finally, the complaint alleges that
the Leslie Salt Company has filled in thousands of acres
of submerged lands and tidelands of the bay illegally and
will fill in additional great portions of San Francisco Bay
illegally unless restrained. The complaint then alleges that
the plaintiffs reside upon and own real property so close
to the bay that their health and the enjovment of their
property is materially affected by the filling of the bay
and that they will be irreparably injured unless further
obstruction and filling by Leslie is restrained. The injury
is alleged to include:
“. , . destruction of fisheries and wildlife from which
plaintiffs personally benefit and destruction of the
flushing characteristics of the San Francisco Bay and
its climate [sie] cooling affect [sie] ....”
The complaint was verified. .
We agree with the court’s decision as to the defendant
Title Insurance and Trust Company and as to the State of
California and the state defendants, hereinafter referred to
collectively as the State; we disagree in part with the
court’s decision as to the defendant Leslie Salt Company.
The only relief sought against the Title Insurance and
Trust Company was that it be enjoined from participating
in proceedings to complete or quiet title to the exchange of
lands described in the complaint between the State and
Appendix 15
Leslie. The exchange was completed prior to the filing of
the complaint and the Title Company would have no interest
in a quiet title proceeding. The matter is therefore moot.
Brockington v. Rhodes, 396 U.S. 41 (1969); McKee & Co.
v. First National Bank of San Diego, 397 F.2d 248 (9th Cir.
1965) (per curiam).
STANDING
With respect to the other parties we are confronted at
the outset with the issue of standing. Each of the defendants
asserts that none of the plaintiffs has standing to prosecute
the action. The district court agreed and we therefore pro-
ceed to that issue.
It is alleged that the Alameda Conservation Association
is a non-profit corporation and has as one of its purposes
the protection of the public interest in the waters of the
San Francisco Bay. C.T. 11. Without more, this does not
qualify the corporate entity to sue to declare the statute
in question unconstitutional or to enjoin the acts of the
public officials. The Association does not assert that any
of its rights or properties are being infringed or threatened.
Sierra Club v. Hickel, F.2d (9th Cir. Sep. 16, 1970). It
simply is not hurt in any practical way which entitles it to
call upon the courts for redress or protection.
Standing is not established by suit initiated by this
association simply because it has as one of its purposes the
protection of the “public interest” in the waters of the San
Francisco Bay. However well intentioned the members may
be, they may not by uniting, create for themselvs a super-
administrative agency or a parens patriae official status
with the capability of over-seeing and of challenging the
action of the appointed and elected officials of the state
government. Although recent decisions have considerably
16 Appendix
broadened the concept of standing, we do not find that they
go this far.?
Were it otherwise the various clubs, political, economic
and social now or yet to be organized could wreak havoe
with the administration of government, both federal and
state. There are other forums where their voices and their
views nay be effectively presented, but to have standing to
submit a “ease or controversy” to a federal court, something
more must be shown.
The dissent urges that the Association although a cor-
poration and thus a legal entity separate and apart from its
members, has standing. The corporation does not allege
that it owns land bordering or near the bay or at all. It
does not assert that it has any property interests of any
kind real or personal which would sustain “injury in fact”,
economie or otherwise, as a result of any of the defendants’
activities. As a matter of fact, the only direct reference
to the status of the corporation is in the introductory para-
graph of the amended complaint which describes it as a
non-profit corporation and states that all of the individual
plaintiffs are members and that all of its members are
1. Flast v. Cohen, 392 U.S. 83 (1968), was a taxpayer’s suit with
definite First Amendment associations ; Association of Data Proces-
sing Organizations, Inc. v. Camp, 397 U.S. 150 (1970), was a com-
petitor’s suit; Barlow v. Collins, 397 U.S. 159 (1970), was a tenant
farmers’ suit challenging regulations which directly affected their
businesses. Associated Industries v. Ickes, 134 F.2d 694 (2nd Cir.
1943), which announced the “private Attorney Generals” doctrine,
Id. at 704, founded it upon a provision of the Bituminous Coal Act
of 1937, 15 U.S.C. § 828. Section 6 (b) of the act expressly auth-
orized “any person aggrieved by an order issued by the commission
in a proceeding to which such person is a party” to seek review by a
petition in an appropriate United States Court of Appeals. The peti-
tioner there was such a coal consumer and such a person. /d. at 699.
Whether in every instance a group which is nermited to appear at an
administrative hearing creates standing to sue for itself which it
did not have before such appearance, is a question which we are not
required to pass upon here.
Appendix 17
residents of the State af California. Thereafter, the ref-
erences in the complaint with respect to standing qualifica-
tions, refer to the individual plaintiffs and not the corporate
plaintiff. However it is urged that standing exists in the
corporation upon the basis of the “nexus” doctrine. The
suggestion is that the corporation may assert its members
rights because it is in the best position to do so. Moreover,
the Association’s “nexus” with its members gives it standing
to appear as their representative in federal courts, it is
asserted.
“Nexus” with relation to standing was discussed in Flast
v. Cohen, 392 U.S. 83, 102 (1968). But the nexus the court
was concerned with there was the link between the seven
taxpayer appellants and the type of legislative enactment
being attacked and the nature of the constitutional infringe-
ment alleged. It had nothing to do with the relationship be-
tween a corporation and its members or shareholders. The
primary purpose in forming a corporation in most instances
is not to give to the corporation an interest in the mem-
ber’s real property or other assets. Just the opposite. It is
to be sure that the member’s property interests will not be
jeopardized by his associations with others. It is not to
create a nexus but to disconnect the member from the organ-
ization as to property, assets or liability. Nor does the fact
that the corporate purposes are akin to those of its members
make the corporation the authorized spokesman for the
purpose of asserting its members constitutional rights.
Tileston v. Ullman, 318 U.S. 44 (1943). If the Association
here had a recreational operation which it conducted and
which the defendants interfered with, it could assert it; if its
physical surroundings were made unattractive, this aes-
thetic infringement would create standing; or if it operated
18 Appendix
a conservation program, an interference with that operation
would establish standing.? The point is that the standing
necessary to assert as a litigant must be that of the litigant.
As stated in Flast, supra, standing focuses on the party
seeking to place his complaint before the court, rather than
the issue to be decided and the question is whether or not
that party has a sufficiently personal stake in the outcome
as to justify the court in entertaining his petition. A corpo-
rate interest in one or more of its stated purposes and ideals
may change depending upon the constituency of its board of
directors. Its preoccupation with one particular aspect of
its chartered goals may wax or wane depending upon who
is at the helm. Not so with the applicant at the judicial door
who will himself sustain injury in fact, economic or other-
wise®
Here, in addition to membership in the Association, four
of the individual plaintiffs assert that they own property
or interests therein which actually border the bay or proper-
ties which are on lagoons which are flushed by the bay and
that they live on such lands. It is alleged that some of the
threatened action will include “destruction of fisheries and
wildlife from which plaintiffs personally benefit” and will
destroy the flushing characteristics of the bay affecting the
climate around them.
However inartfully drawn, these allegations charge an
invasion of the personal interests of those four complain-
ants who have property bordering the bay or its lagoons
2. Association of Data Processing Organization, Inc. v. Camp,
397 U.S. 150, 154 (1970).
3. The cases cited in the dissenting opinion illustrate standing
problems in the context of a variety of situations. Most are clearly
distinguishable, having to do with First Amendment rights, and clear
cases of direct impact on the complainant. Citizens Association of
Georgetown v. Simonson, 403 F.2d 175, 176 (D.C. Cir. 1968), in a
short per curiam opinion makes the perfunctory statement quoted in
the dissenting opinion which is contra to the position taken hereand——<C—sSSF
not supported by the cases cited in its own footnote.
Appendix 19
and reside thereon that will result personally and directly
in an adverse effect upon them.
Having come to that conclusion it is not necessary for me
to reach the question of standing as to the other individual
plaintiffs and I do not do so. See Office of Communication of
United Church of Christ v. F.C.C., 359 F.2d 994, 1006 (D.C.
Cir. 1966).* I only decide that these four individuals who
allege that the activities which they question will cause
injury in fact to them, have sufficiently alleged standing.
The rationale of United Church of Christ is that the
number of parties litigant may be limited to the number
necessary to adequately present the issues which have been
set out.® That rationale is applicable here for two reasons.
The interest that are asserted by those near the bay include
the interests asserted by those farther from the bay. All the
interests that are asserted can be presented to the court by
4. After discussing the competing considerations of commission
efficiency and unlimited audience participation in licensing procedures,
Judge Burger said:
“... we do not now hold that all of the Appellants have standing
to challenge WLBT’s renewal. We do not reach that question. As
to these Appellants we limit ourselves to holding that the Commis-
sion must allow standing to one or more of them as responsible
representatives to assert and prove the claims they have urged in
their petition.” Office of Communication of United Church of
Christ v. F.C.C., 359 F.2d 994, 1006 (D.C. Cir. 1966).
5. I recognize as did Judge Burger that United Church of Christ
originated as a proceeding before the Federal Communications Com-
mission at which certain litigants were denied standing. Office of
Communication of United Church of Christ v. F.C.C. 359 F.2d 994,
1000 n.8 (D.C. Cir. 1966). By statute, 47 U.S.C. § 309(a), such a
proceeding is one in the nature of a determination of the public con-
venience and necessity and a “party in interest” is entitled to appear.
Having appeared he may have standing to appeal under another sec-
tion of the same chapter, 47 U.S.C. § 402(6), or under the provisions
of the Administrative Procedure Act, 5 U.S.C. § 702. Thus, United
Church of Christ, like many similar agency cases, is quite different
from this case originating in the district court. Nonetheless, I do not
regard Judge Burger’s comments inapposite as applied in the context
of the present case.
20 Appendix
those who have been accorded standing. Second, the relief
sought by those near the bay is the same as that sought by
all the other parties, thus no prejudice will be suffered by
declining to decide the incor: of the other plaintiffs. Cf.
Benton v. Maryland, 395 U.S. 784, T98 (1969) (White, J.,
concurring). Llenee, | conclude that the plaintiffs before
this court will adequately represent all of the issues before
the court, and L think it unnecessary to decide whether to
accord standing to the remaining plaintiffs. The policy of
judicial restraint provides an additional reason for this
conclusion. The prineiple is widely held that decisions of far
reaching effeet should not be made when not necessary to
do so. L.g., Zschering v. Miller, 389 U.S. 429, 444 (1968)
(Harlan, J., concurring); Rescue Army v. Municipal Court,
ool US. 549, 568 (1947): Ashwander v. Valley Authority,
POT ULS. 288, 346-47 (19386) (Brandeis, J., concurring) ;
State of Tevas v. Grundstrom, 404 1.2 644, 648 (Sth Cir.
1968); Taylor v. United States, 320 F.2d 843, 846 (9th Cir.
1963), cert. dented, 376 U.S. 916 (1964).° While this prin-
ciple is in most instanees limited to constitutional and
jurisdictional issues, [ find it an axiom of judicial restraint
which is applicable to the ease here where the plaintiffs that
have been accorded standing will be able to obtain relief
adequate to protect all of the interests brought before the
court,
The majority of the panel would accord standing to all
of the individual plaintiffs, and that view, therefore, be-
comes the decision of the court upon this point. In my view,
6. In Flast v. Cohen, 392 U.S. 83, 94-99 (1968), the Court recog-
nized that standing, being an aspect of the justiciability limitation
imposed by the case-and-controversy doctrine, was a similar blend of
constitutional limitations and policy considerations, including those
considerations relating to judicial restraint formulated by Justice
randeis in his often quoted concurrence in Alsh-vander v. Valley
Authority, 297 U.8. 288, 346-47 (1936).
‘ ee to ee
Appendix 21
the four plaintiffs whose land abuts the water have alleged
damage and that allegation is sufficient to supply justi-
ciability and standing. Nothing more need be decided to
support this litigation.
My disagreement with the majority upon this issue is
essentially the problem of where to draw the line between
those parties whose interests are proximate and thus have
standing and those whose interests are remote and do not.
Any atteinpt to fix the exact boundary between regions of
proximity and remoteness, cloaked by whatever language of
reasonableness, ends by being an arbitrary line. Granted
that such lines are difficult and of necessity must at times
he drawn; there is no reason to draw such a line here. An-
other difficulty is presented by the nature of the meager
record before this court. Even as to the four plaintiffs who
have been accorded standing the information is not plenti-
ful. The only knowledge about the other plaintiffs comes
from the allegations of the amended complaint. Most of
them are alleged to own property or interests ‘n property
“within a mile” of the bay. Dolores Dodd is alleged to be
“a tenant upen certain real property which is located within
six miles of the navigable waters of the San Francisco Bay.”
All are alleged to reside at the locations described and
assert that their health and their enjoyment of their prop-
erty will be affected by the alleged unlawful acts of the
defendants. Of necessity, a line encompassing all is more
likely to have effects beyond this court’s perception and
control. T am reluctant to unleash such potential when it is
unnecessary to do so.
THE STATE OF CALIFORNIA
The relief sought by the amended complaint against the
State was that the “defendants and each of them he en-
joined from participating in any proceedings to complete
22 Appendix
or quiet title to the above-referred to purported exchange
of lands... .” C.T. 24. Insofar as an injunction to prevent
the completion of the exchange is concerned, counsel for
plaintiffs frankly acknowledged to the district judge that
the exchange had been completed-prior to the filing of the
complaint and that this portion of the prayer for relief
had become moot. R.T. 17. Brockington v. Rhodes, supra;
McKee & Co. v. First National Bank of San Diego, supra.
As to the remainder of the relief sought against the State,
counsel stated to the court:
“".. We allege there is apparently intent to have a
consent quiet title between Leslie and the State of
California in the State Courts, and we do ask that be
enjoined.” R.T. 17.
The intent as alleged is uncertain; the proceedings are un-
defined for purposes of an injunction; and an assumption
must be made that the parties and the courts will combine
to produce an illegal act. We cannot frame a decree on such
a tenuous foundation. |
28 U.S.C. § 2281, providing for three-judge courts, is not
to be viewed as a measure of broad social reform to be con-
strued with great liberality but as an enactment which is
technical in the strict sense of the term and to be applied
as such. Swift & Co. v. Wickham, 382 U.S. 111 (1965). It
should not be invoked unless the constitutional question is
a substantial one. 7d. at 115. Here the passage of title by
transfer of title documents hau been completed. There could
be no effect on plaintiff’s titles in a quiet title action without
service of process upon plaintiffs involving notice and an
opportunity to be heard. We do not believe that the situation —
is one within the meaning and purpose of the statute.
The district court correctly concluded that 28 U.S.C. § 2281
did not apply and that a three-judge court should not be
impaneled.
ApS ROO RRS
Appendix 23
Likewise the plaintiffs have no standing to ask the court
to cancel deeds or documents of title for the reason that
1969 California Statutes, Chapter 1885, is unconstitutional.
Whether the title to lands described by the statute is in the
State or is in an individual or corporation does not affect
any of the plaintiffs, nor does the complaint contain an
allegation that it does. What the owner or holder does with
the lands may or may not affect the plaintiffs. The existence
of a putative “adversary interest” is not sufficient to confer
standing. “There must in addition be some connection be-
tween the official action challenged and some legally pro-
tected interest of the party challenging that action.” Jenkins
v. McK eithen, 395 U.S. 411, 423 (1969). Furthermore, a
federal court will not render an advisory opinion on the con-
stitutionality of a state statute concerning a potential or
anticipated effect from the operation of the statute which
may or may not oceur. Golden v. Zwickler, 394 U.S. 103, 110
(1969). The question is whether there exists “ ‘a substantial
controversy. hetween parties having adverse legal interests,
of sufficient immediacy and reality’ ” to warrant an adjudi-
cation. 394 U.S. at 108. The cireumstances of this case do not
show such immediacy or reality.
LESLIE SALT COMPANY
The only issue of substance upon which the individual
plaintiffs may rely under the present posture of the case
to invoke the jurisdicion of the court is that created by
the allegation that the continued filling and obstruction of
the hay by the defendant Leslie Salt Company operates to
cause the destruction of:
“fisheries and wildlife from which plaintiffs personally
benefit and destruction of the flushing characteristics
of the San Francisco bay and its climate [sic] cooling
affect [sie] C.T. 23.
24 Appendix
It is alleged that Leslie intends to and will, unless
restrained, fill and obstruct great portions of the bay in
violation of 33 U.S.C. $§ 401-06 which will result in damage
to the plaintiffs. 33 U.S.C. § 403 provides that it shall not be
lawful to excavate or fill any port, harbor or the channel
of any navigable water of the United States unless the work
has been recommended by the Chief of Engineers and au-
thorized by the Secretary of the Army prior to the beginning
of the work.’
Tn this instance the record discloses that the court made
inquiry of the Corps of Engineers concerning its position
pursuant to the Rivers and Harbors Act of 1899, 33 U.S.C.
$$ 401-06, but no response was obtained. Representatives
of the Corps of ingineers were subpoenaed to testify at one
hearing at the instance of the plaintiffs but were dismissed
by the court without requiring them to testify or produce
documents subpoenaed. R.T. 70. From these allegations it
would appear that there is a sufficient claim that the de-
fendant Leslie has been engaged in, is now continuing to
engage in, and will engage in unlawful action in the future,
unless restrained: to wit, the obstruction and filling of large
portions of San Francisco Bay. It would appear that there
is a sufficient claim that this action is unlawful because it is
inyiolation of a statute of the United States, 33 U.S.C. § 403.
And finally, the amended complaint alleges that this unlaw-
ful activity would cause damage and injury to the plaintiffs
personally or to some of them.
7. 33U.S.C. § 403 in pertinent part provides:
“{T]t shall not be lawful to excavate or fill, or in any manner to
alter or modify the course, location, condition, or capacity of, any
port, roadstead, haven, harbor, canal, lake, harbor of refuge, or in-
closure within the limits of any breakwater, or of the channel of any
navigable water of the United States, unless the work has been recom-
mended by the Chief of Engineers and authorized by the Secretary of
the Army prior to beginning the same.”
a all
pie pees
. Appendix 25
As we have recently said in a situation which is some-
what similar, a preliminary injunction should not issue in
a doubtful ease. Sierra Club v. Hickel, supra. We do not
believe that the individual plaintiffs have here established
the strong likelihood or reasonable certainty that they will
ultimately prevail which would justify the grant of a writ.
Garlock, Inc. v. United Seal, Inc., 404 F.2d 256, 257 (6th
Cir. 1968).
We therefore agree with the action taken by the district
court in discharging the orders to show cause and we also
agree with the district court in its denial of the request
for a three-judge district court.
In considering a motion to dismiss, the allegations of
the complaint are taken as true, and the complaint is liber-
ally construed in favor of plaintiff. Jenkins v. McK eithen,
supra, 395 U.S. at 421. “The complaint should not be dis-
missed unless it appears that appellant could ‘prove no
set of facts in support of his claim which would entitle him
to relief.” Jenkins v. McKeithen, supra, 395 U.S. at 422
(citation omitted); Corsican Productions v. Pitchess, 388
F.2d 441, 442 (9th Cir. 1964). We do not say that an injunc-
tion should issue or other relief granted. What we do say
is that here the matters charged in the complaints of the
individual plaintiffs were not developed to the point of
sufficient clarity and finality that the proceedings should
be dismissed on motion.
The majority of the court holds that the individual plain-
tiffsthave sufficiently alleged standing to sue, for the court
to proceed to a hearing of their allegations; Judge Hamley
would also accord standing to the Association and from
the contrary view of the majority, he therefore dissents:
Judge Trask would accord standing only to four of the
0 OO SI PS Cen
26 Appendix
individual plaintiffs and from a contrary view of the major-
ity in this regard he respectfully dissents.
That portion of the court’s order which dismissed the
proceedings in their entirety is reversed and the matter is
remanded for further hearing in accordance with this
opinion.
HAMLEY, Circuit Judge (Separate Opinion) :
I
As stated by Judge Trask, his opinion represents the
decision of the court on all issues except as to the standing
of the individual plaintiffs.
Judge Merrill and I, speaking for the court, hold that all
eight of the individual plaintiffs have standing to prose-
cute this suit. This would accord standing not only to the
four individual plaintiffs (Helen L. Freeman, Doris S.
Chapman, Walter S. Cooper and Helene Corker) who own
property or interests in property, upon which they reside,
bordering San Francisco Bay or lagoons flushed by the
Bay, but also to:
Elinore B. Coffman and Sally Krusi Pollard, who
own and reside on property located within one mile of
~~ * the navigable waters of the Bay.
Luman C. Drake, who resides within one mile of the
navigable waters of the Bay.
Dolores Dodd, who is a tenant residing upon prop-
erty located within six miles of the navigable waters
of the Bay.
These four individual plaintiffs, as well as the four whose
standing is recognized by Judge Trask, allege that some
of the threatened action will include destruction of fisheries
and wildlife from which plaintiffs personally benefit, and
will destroy the flushing characteristics of the Bay affect-
ing the climate around them. While the properties upon
Appendix 27
which these four plaintiffs reside do not border the Bay
or its lagoons, this is not a controlling circumstance.
Since San Francisco Bay is not the private preserve of
those who own property and reside on its shores, persons
not so situated, who assert substantial reasons why they
are personally damaged by what Leslie Salt Company is
assertedly doing to the Bay, ought to be able to litigate
their grievances. Whether they will be able to prove such
allegations is another matter.
The practical effect of declining to decide whether these
four individuals have standing is to deny them standing
without giving reasons for such action. It may be appro-
priate to leave the question of the standing of some plain-
tiffs undecided in a ease such as Office of Communication
of United Church of Christ v. F.C.C., 359 F.2d 994 (D.C.
Cir. 1966), where the general issue was one of public con-
venience and necessity and other plaintiffs could ade-
quately present the public side of that issue. But each of
the eight individual plaintiffs in the case before us seeks
to prosecute not only a class action but his own individual
action based upon allegations of personal damage to him-
self. Under these circumstances, none of them should be
shunted to the sidelines simply because others, asserting
similar personal and class action claims, may (or may not)
obtain judicial relief which will redound to the benefit of
all plaintiffs.
II
T concur in all other holdings announced in Judge Trask’s
opinion except his holding, concurred in by Judge Merrill.
that Alameda Conservation Association (Association) does
not have standing to prosecute this action to stop what is
alleged to be the unlawful conduct of Leslie Salt Company
(Company) in filling in thousands of acres of submerged
lands and tidelands in San Francisco Bay. For the reasons
stated below, I dissent from this ruling by the court.
AAS EPAPER RS SHAG ws RAAT Bin NOME Ste RSS GN Tee We oc AGG RING Acta —
28 Appendiz
The Association is a non-profit corporation having for
one of its purposes, the protection of the public interest
in the waters of San Francisco Bay. The members of the
Association are all inhabitants of the state of California.
As the name indicates, the Association is interested in the
welfare of Alameda County, which borders the Bay.
The Association and the individual plaintiffs allege that,
by reason of the Company’s activity in filling in the Bay,
the waters of the Bay are being polluted; the quantity of
shellfish, finfish, waterfowl and other wildlife is being sub-
stantially reduced; the value of the Bay as a facility for
the production of salt is being diminished; the Bay is be-
coming less desirable and less suited for pleasure-boating
and other recreations; by reason of the reduction in navi-
gable waters and the construction of dikes and other obsta-
cles, the Bay is becoming less useful for the purposes of
commercial transportation; and the climate in the adjacent
area is being adversely affected by the substantial reduc-
tion in the water-surface area in the Bay.
In my opinion, these allegations concerning interference
with plaintiff’s enjovment of the aesthetic, conservational
and recreational values associated with San Francisco Bay
amply establish their standing to prosecute this suit.
The majority may be right in saying, in effect, that these
allegations do not satisfy the test of a recognized legal in-
terest. But that test was knocked out by the recent Supreme
Court decisions dealing with standing. See Davis, The Lib-
eralized Law of Standing, 37 U. CHT. L. REV. 450, 453
(1970).
The new test of standing has two prongs, There must
be injury in fact, economic or otherwise, to satisfy the
“ease” or “controversy” requirement of Article TIT of the
Constitution. And the interest sought to he protected must
he arguably within the zone of interests to be protected
or regulated by the statute or guarantee in question. Asso-
Appendiz 29
ciation of Data Processing Service Organizations v. Camp,
397 U.S. 150 (1970). In my opinion, whatever the facts
may turn out to be, the allegations of the amended com-
plaint satisfy both facets of this test. In the Data Process-
ing case, the Supreme Court specifically stated that the
element of legal wrong need not be economic in nature, but
may be aesthetic, conservational or recreational. 397 U.S.
at 154.
The Association is in the best position to assert these
wrongs not only on behalf of itself, but on behalf of all its
members. It can do so more effectively, and with less diffi-
culty from the standpoint of judicial administration, than
if all of the individual members were to come to court.
The Association may assert these rights on its own be-
half because, though a corporation, it is directly engaged
in preserving these rights. See N.A.A.C.P. v. Button, 371
U.S. 415, 428 (1963) National Student Association v. Her-
shey, 412 F.2d 1103, 1120-1121 (D.C. Cir. 1969). Moreover,
the Association’s nexus with its members gives it standing
to appear as their representative in federal courts. See
N.A.A.C.P. v. Alabama, 357 U.S. 449, 458-459 (1958). As
the District of Columbia Court of Appeals said in The Citi-
zens Association of Georgetown v. Simonson, 403 F.2d 175,
187 (D.C. Cir. 1968) :
“Since the association is an authorized spokesman or-
ganized to promote these interests for its individual
members, it too has standing to sue in order to protect
their interests.” (Footnote omitted.)
ALAMEDA CONSERVATION ASSOCIATION, ET AL.
v. STATE OF CALIFORNIA, ET AL.—No. 22,961
MERRILL, Circuit Judge, Concurring in part with Judge
Trask and in part with Judge Hamley:
A Ne LL Lc
30 Appendix
I. Standing of the Individual Plaintiffs
I agree with Judge Hamley that all individual plaintiffs
have sufficiently alleged a threat of injury in fact and have
standing.
The threatened injury here alleged is to the Bay. In my
view, injury in fact to individuals is threatened if their
relationship to the Bay, through proximity of residence or .
regularity of use, is such that in their normal activities
injury to the Bay of the type alleged cannot but affect
their esthetic, recreational or environmental interests. Such
is the case here.
Future cases may well present problems as to whether
plaintiffs fall within a recognizable zone of injury in these
respects, or whether, on the contrary, their injury is merely
de minimis. It is conceivable that lines of proximity may
have to be drawn. This case, however, does not present
such problems.
II. Standing of the Association
I agree with Judge Trask that the Association does not
have standing.'
1. The standing problem here is different from that posed in those
cases in which plaintiff brings a “public action” in which he does not
assert a special interest apart from that of the public generally. This
court has recognized that, in such cases, statutory authorization is re-
quired befere ai: organization may tender the rights of the public.
Sierra Club v. Hickel, F.2d (9th Cir. Sept. 16, 1970). See Scenic
Hudson Preservation Conf. v. FPC, 354 F.2d 608 (2d Cir. 1965) ;
cf. Scripps-Howard Radio, Inc. v. FPC, 316 U.S. 4, 14 (1942).
Furthermore, as Judge Trask notes, this is not a case in which the
Association, as an individual corporate entity, is alleging injury to
itself. See NAACP v. Button, 371 U.S. 415, 428 (1963) ; National
Student Association v. Hershey, 412 F.2d 1103 (D.C. Cir. 1969). Nor
is it a case in which the organization’s members are unable to seek
protection in the courts without themselves sacrificing the very rights
for the protection of which suit was brought. See NAACP v. Ala-
bama, 357 U.S. 449, 458-59 (1958). On the contrary, the Association
here claims standing simply as a representative of its members.
a Bee ee
Appendix 31.
As Judge Trask points out, the Article III limits of case
and controversy still serve to define the area of justiciable
dispute. The courts do not deal with abstract principles of
public welfare but with the individual rights presented by
the litigants.
As the Supreme Court in Data Processing Service v.
Camp, 397 U.S. 150 (1970), points out, the existence of
injury in fact on the part of the plaintiffs is still the badge
of case and controversy in private actions. Where, as here,
the case presents issues of public moment—where what is
at the heart of the problem is an alleged injury common to
a substantial segment of the public—it may well be that
the common cause can better and more earnestly be pre-
sented through an association of those affected than
through a collection of individuals each tendering his own
modest share of the common injury.
However, the traditional requirement that the subject
matter of litigation be rights and injuries in fact serves
not only to assure true adversary presentation of the is-
sues; it also provides the res upon which res judicata ean
operate. It serves to assure that litigation on its conclusion
will settle the matter as between the adversaries. The join-
ing of an association as party can hardly give such assur-
ance as to those it purports to represent since the rights
of its members are not tendered for adjudication.? Individ-
ual members are free to relitigate so long as imaginative
counsel can find an escape from stare decisis. Any apparent
enlargement of the dispute to something akin to a class
action is wholly illusory.
2. It may be that, under the appropriate circumstances, an organi-
zation which is likely to be a vigorous party in the presentation of its
case and which can demonstrate express authorization of its members
should be able to present its members’ interests for litigation. We
need not prejudge that question here, where there has been no such
express assignment.
32 Appendix
When the rights of its members are not before the court,
all an association can do is represent their views. The judi-
cial process allows room for this representation through
appearance as amicus curiae. Further, organizations such
as the Association, through contemporary and benign
forms of champerty and maintenance, can provide useful
functions of encouragement and assistance to those actu-
ally possessing judicially protectable interest. Cf., NAACP
v. Button, 371 U.S. 415 (1963). They should, however, rec-
ognize that when the forum chosen for assertion of their
views is a court of law and the action sought is judicial,
rather than political or administrative, they cannot play
the part of actor without themselves possessing or tender-
ing rights of which the court can take cognizance.
Ill. Other Issues
In all other respects I concur with Judge Trask.
Office of the Clerk
United States Court of Appeals for the Ninth Circuit
Jan. 19, 1971
Re: No. 22961, Alameda Conservation Association, et al. v.
. State of California, et al.
Dear Sir:
An opinion in the above case was filed today, and pursu-
ant to Rule 36 of the Federal Rules of Appellate Procedure
a judgment was entered reversing and remanding the judg-
ment or order of the court below (or administrative
agency). You have 14 days from this date to file a peti-
tion for rehearing if you wish to do so.
Appendix 33
Pursuant to Rule 41(a) the mandate of this court will
issue 21 days after the entry of judgment, unless the court
enters an order otherwise, or grants a stay of the mandate
or a petition for rehearing is filed. If a petition for rehear-
ing is filed and denied, the mandate shall issue 7 days after
the entry of the order denying the petition.
Very truly yours,
Wm. B. Luck, .
Clerk of Court
34 Appendix
Appendix B
33 U.S.C. § 401. Construction of bridges, causeways, dams
or dikes generally
It shall not be lawful to construct or commence the con-
struction of any bridge, dam, dike, or causeway over or in
any port, roadstead, haven, harbor, canal, navigable river,
or other navigable water of the United States until the con-
sent of Congress to the building of such structures shall
have been obtained and until the plans for the same shall .
have been submitted to and approved by the Chief of Engi-
neers and by the Secretary of the Army: Provided, That
such structures may be built under authority of the legis-
lature of a State across rivers and other waterways the
navigable portions of which lie wholly within the limits of
a single State, provided the location and plans thereof are
submitted to and approved by the Chief of Engineers and
by the Secretary of the Army before construction is com-
menced: And provided further, That when plans for any
bridge or other structure have been approved by the Chief
of Engineers and by the Secretary of the Army, it shall
not be lawful to deviate from such plans either before or
after completion of the structure unless the modification
of said plans has previously been submitted to and received
the approval of the Chief of Engineers and of the Secre-
tary of the Army.
Mar. 3, 1899, c. 425, § 9, 30 Stat. 1151.
33 U.S.C. § 403. Obstruction of navigable waters gener-
allv; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively author-
ized by Congress, to the navigable capacity of any of the
waters of the United States is prohibited; and it shall not
be lawful to build or commence the building of anv wharf,
Appendix 35
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or
other structures in any port, roadstead, haven, harbor,
eanal, navigable river, or other water of the United States,
outside established harbor lines, or where no harbor lines
have been established, except on plans recommended by the
Chief of Engineers and anthorized by the Secretary of the
Army; and it shall not be lawful to excavate or fill, or in
any manner to alter or modify the course, location, condi-
tion, or capacity of, any port, roadstead, haven, harbor,
canal, lake, harbor of refuge, or inclosure within the limits
of any breakwater, or of the channel of any navigable water
of the United States, unless the work has been recom-
mended by the Chief of Engineers and authorized by the
Secretary of the Army prior to beginning the same.
Mar. 3, 1899, c. 425, § 10, 30 Stat. 1151.
33 U.S.C. § 406. Penalty for wrongful construction of
bridges, piers, ete. ; removal of structures
Every person and every corporation that shall violate
any of the provisions of sections 401, 403, and 404 of this
title or any rule or regulation made by the Secretary of
the Army in pursuance of the provisions of section 404 of
this title shall be deemed guilty of a misdemeanor, and on
conviction thereof shall be punished by a fine not exceeding
$2,500 nor less than $500, or by imprisonment (in the
case of a natural person) not exceeding one vear, or by
both such punishments, in the discretion of the court. And
further, the removal of anv structures or parts of structures
erected in violation of the provisions of the said sections
may be enforeed by the injunction of any district court
exercising jurisdiction in any district in which such strue-
tures may exist, and proper proceedings to this end may
be instituted under the direction of the Attorney General
of the United States.
Mar. 3, 1899, e. 425, § 12, 30 Stat. 1151; Feb. 20, 1900, ec. 23,
§ 2, 31 Stat. 32; Mar. 3, 1911, ¢. 231, § 291, 36 Stat. 1167.
36 Appendix
a STAT. TES OF CALIFORNIA
CHAPTER 1885
An act authorizing the State Lands Commission to exchange
the interest of the State in parcels of land in the vicin-
ity of San Francisco Bay for the interest of persons in
other parcels of land in the vicinity of San Francisco
Bay for the purposes of commerce, navigation and rec-
lamation and the settlement of titles and boundaries
and providing for actions against the State to quiet
title to the lands exchanged, and authorizing actions to
quiet title against the State the lands conveyed by the
State pursuant to Chapter 353 of the Statutes of 1955.
[Approved by Governor July 16, 1959. Filed with
Secretary of State July 17, 1959.]
The people of the State of California do enact as follows:
Section 1. The State Lands Commission is hereby au-
thorized to convey to any person or corporation all right,
title and interest of the State in and to parcels of land,
except land used for highway purposes, lying in the vicinity
of San Francisco Bay southerly of latitude 37° 40’ and
being in Alameda, Santa Clara or San Mateo County, in
exchange for and upon there being conveyed to the State
by such person or corporation all right, title and interest of
such person or corporation in other parcels of land lying in
the same vicinity if the commission finds: (a) that such
exchange is necessary in order to settle and confirm the
title of the State in and to the parcels to be conveyed to it
and to establish the boundaries thereof, and (b) that such
exchange is in the interest of the promotion of commerce,
navigation and reclamation, and (c) that the value of the
interests of the State in the parcels of land to be conveyed
by it is no greater than the value of the interests to be
acquired by the State in such other parcels of land in such
Appendix 37
exchange. Such findings, if and when made by the commis-
sion, shall be conclusive and binding upon all persons. The
commission shall determine the parcels to be conveyed by
the State and the parcels to be conveyed to the State in such
exchange.
Sec. 2. The exchange herein provided for is authorized
for the purpose of promoting commerce, navigation, flood -
control and reclamation, and it is hereby determined that
upon completion of any exchange of lands pursuant to this
act the parcels conveyed by the State pursuant thereto will
no longer be necessary or useful for navigation or fisheries
and such parcels, upon the delivery of the respective con-
veyances, are hereby freed of the public trust for naviga-
tion and fisheries.
Sec. 3. Before making any exchange herein authorized
the commission shall publish notice of its intention to make
the exchange. The notice need not particularly describe the
lands or the interest therein proposed to be exchanged but
shall refer to the maps and records on file with the commis-
sion for a detailed description thereof and for further par-
ticulars. Any affected city or county, within thirty (30) days
after the publication of such notice, may request in writing
to the commission that a hearing be held with respect
thereto. Upon receipt of such request, the commission shall
hold such a hearing and give not less than ten (10) days
written notice thereof to each city or county making such
request and to the Department of Natural Resources. The
notice herein provided for shall be published in a news-
paper of general circulation published in each of the coun-
ties in which any of the lands proposed to be exchanged are
located. Authority to hold the hearing herein provided for
may be delegated by the commission to its officers or em-
ployees.
38 Appendix
Sec. 4. The exchange herein authorized shall be deemed
a compromise agreement entered into under Division 6 of
the Public Resources Code as said term is used in Section
6101 of the Public Resources Code and the provisions of
Chapter 5, Part 1, Division 6 of the Public Resources Code
shall not be applicable thereto.
Sec. 5. The grantee or grantees of any lands conveyed
by the State pursuant to the provisions of this act, or pur-
suant to the provisions of Chapter 353 of the Statutes of
1955, or his or their successor or successors in interest,
immediate or remote, is and are hereby authorized to bring
suit against the State of California to quiet title to the
lands so conveyed, or to obtain declaratory relief determin-
ing the validity of the title so conveyed. Service of process
in any such suit shall be made upon Chairman of the State
Lands Commission and the Attorney General, and it shall
be the duty of the Attorney General to represent the State
in any such suit. In any such action, whether or not judg-
ment is given against the State, no costs shall be recovered
against the State. Any action brought under the provisions
of this act shall be commenced prior to January 1, 1963.
Appendiz 39
Appendix C
Funsten & CaLpWEIL
404 Russ Building
235 Montgomery Street
San Francisco, California 94104
Telephone: EXbrook 7-4373
Attorneys for Plaintiffs
United States District Court
For the Northern District of California
Filed Feb 1968
James P. Welsh, Clerk
CIVIL ACTION FILE NO. 48620
Alameda Conservation Association, a California Non-Profit
Corporation, Helen L. Freeman, Elinor B. Coffman, Doris
S. Chapman, Sally Krusi Pollard, Dolores Dodd, Walter S.
Cooper, Luman C. Drake, and Helene Corker, on behalf
of themselves and on behalf of all other inhabitants of the
State of California, and of all other citizens of the United
States of America,
Plaintiff s,
VS.
State of California; Ronald Reagan, Governor of the State
of California; Thomas C. Lynch, Attorney General of the
State of California; Frank M. Jordan, Secretary of State
of the State of California; Robert H. Finch, Houston I.
Flournoy, and Gordon P. Smith, members of the California
State Lands Commission; N. G. Taylor, Deputy Attorney
General of the State of California; F. J. Hortig, Executive
Officer of the California State Lands Commission; Title
Insurance and Trust Company, and Leslie Salt Company,
Defendants.
nts Seem
40 Appendix
FIRST AMENDED COMPLAINT FOR INJUNCTION,
DECLARATION THAT CALIFORNIA STATUTE IS
VOID, AND DECREE DIRECTING CANCELLATION
OF LAND PATENTS AND DECLARING A PUBLIC
INTEREST IN CERTAIN SOVEREIGN BAY LANDS.
Plaintiffs complain of defendants and for cause of action
allege:
I
The action arises under: (a) The Rivers and Harbors
Appropriation Act of 1899, 33 U.S.C.A. Sections 401, 403
and 406; (b) Article 1, Section 8, Clause 3, of the United
States Constitution, commonly known as the Commerce
Clause; (c) Section 3 of the Act of Congress for the Admis-
sion of the State of California into the Union, Volume 9,
U.S. Statutes at Large, Pages 452 and 453; (d) The Swamp
Act, September 29, 1850, 9 U.S. Statutes at Large 520; (e)
The Act to Quiet Land Titles in California, 14 United States
Statutes at Large, Chapter 218; and (f) Section 1 of the
14th Amendment to the Constitution of the United States
of America.
The matter in controversy exceeds, exclusive of interest,
and costs, the sum of $1,000,000.00.
The jurisdiction of the Court is founded upon the above-
cited statutes and constitutional provisions and upon Title
28 U. S. C. Sections 1331 and 1337.
II
The Alamada Conservation Association is a non-profit
corporation duly incorporated under the general non-profit
corporation law of the State of California and has, as one
of its purposes, the protection of the public interest in the
waters of the San Francisco Bay. The members of the
ee Se ee ee ee ee eee es ee vind inigaiails 5 — Lak ile tte tein
Appendix 41
Alameda Conservation Association are all inhabitants of
the State of California and include all of the individually
named plaintiffs herein. Each plaintiff herein brings this
action on behalf of himself or herself and also on behalf of
all other inhabitants of the State of California and citizens
of the United States of America.
Tit
Plaintiff Helen L. Freeman is the owner of a one-half un-
divided interest in certain real property consisting of a
single family residence located on a lot in the City of
Alameda, County of Alameda, State of California, and
which, until the year 1955, bordered directly upon the waters
of the San Francisco Bay. In the year 1955 the San Fran-
cisco Bay next to said real property was filled for private
commercial purposes leaving a lagoon next to said reai
property which is occasionally flushed with the waters of
the San Francisco Bay. Said real property is now located
approximately 3000 feet from the open waters of the San
Francisco Bay.
Plaintiff Elinor B. Coffman is the owner of a one-half
undivided interest in certain real property improved with
a single family residence in which she resides which is
located in the City of Alameda, County of Alameda, State
of California, and which is less than one mile from the
navigable waters of the San Francisco Bay.
42 Appendix
Plaintiff Doris S. Chapman is an owner of an undivided
one-half interest in certain real property improved with a
single family residence in which sie resides, which prop-
erty is located in the City of Alameda, County of Alameda,
State of California, and which borders along one side upon
the navigable waters of the San Francisco Bay, particu-
larly, upon the waters of the San Antonio Estuary of said
San Francisco Bay.
Plaintiff Sally Krusi Pollard is an owner of and resides
upon certain real property situated in the City of Alameda,
County of Alameda, State of California, which is located
within one mile of the navigable waters of the San Fran-
cisco Bay.
Plaintiff Dolores Dodd is a tenant upon certain real prop-
erty in the City of Oakland, County . ° Alameda, State of
California, which is located within six miles of the navi-
gable waters of the San Francisco Bay.
Plaintiff Walter S. Cooper is an owner of a one-half
undivided interest in a seventy-five year lease upon certain
real property upon which he resides in the County of San
Mateo, State of California, which real property borders
upon a lagoon which is regularly flushed with the waters
of the San Francisco Bay and which real property is within
one mile of the waters of the San Francisco Bay.
Plaintiff Luman C. Drake resides in the City of Brisbane,
County of San Mateo, State of California, within one mile
of the navigable waters of the San Francisco Bay.
Plaintiff Helene Corker is the owner of a one-half
undivided interest in certain real property improved with
a single family residence in which she resides which is
located in the City of Alameda, County of Alameda, State
of California, and which borders upon the navigable waters
of part of the San Francisco Bay.
Appendix 43
IV
By reason of the proximity of the aforesaid real property
and residences of the plaintiffs to the navigable waters of.
the San Francisco Bay, the individual plaintiffs herein are
affected specially, and not only as members of the public,
by the condition of the navigable waters of the San Fran-
cisco Bay and obstructions therein, all as more particularly
hereinafter alleged.
V
Plaintiffs Helen L. Freeman, Elinor B. Coffman, Doris
S. Chapman, Sally Krusi Pollard, and Helene Corker hold
title to their above-referred to real property as successors
in interest to the grantees under a Spanish-Mexican Land
Grant confirmed by the United States of America under
the terms of the Treaty of Guadalupe Hidalgo and pursuant
to the Act of Congress of 1851 effecting said Treaty, the
property of said Doris S. Chapman and Helene Corker is
bounded by the “sea” and said plaintiffs are entitled, under
the Mexican and Spanish law as enforced by the United
States of America, to full fishing rights in the San Fran-
cisco Bay.
VI
In the year 1850 the San Francisco Bay was composed of
approximately 678 square miles of submerged lands, tide-
lands and swamp and overflow lands. In said year of 1850
the submerged lands and tidelands of the San Francisco Bay
were conveyed by the United States Government to the
State of California by the Act of Congress for the Admis-
sion of the State of California to the Union, 9 U. S. Statutes
at Large 452, with the provision that:
“all the navigable waters within the said State shall
be common highways, and forever free, as well to the
44 Appendix
inhabitants of said State as to the citizens of the United
States...”
Said San Francisco Bay, at least to its line of ordinary
high tide, is a navigable waterway of great value to the
commerce of the United States of America. The laws of the
State of California have never authorized the sale of the
submerged lands of the San Francisco Bay to private per-
sons. All of said submerged lands and tidelands are subject
to a public trust for navigation and fisheries.
Also in the vear 1850 the United States Government en-
acted the Arkansas Swamp Lands Grant Act, 9 U. S. Stat-
utes at Large 520, under which the swamp and overflow
lands of the San Francisco Bay could be transferred from
the Federal Government to the State of California if they
were surveyed and upon transfer could be sold to private
persons for agricultural purposes. Many swamp and over-
flow lands of the San Francisco Bay have not been surveyed
in compliance with said Act, and therefore the title thereto
was never perfected in the State of California nor any per-
sons claiming under it, and the location and extent of certain
of the swamp and overflow lands claimed by Leslie Salt
Company has never been ascertained.
VII
Said San Francisco Bay has great importance to the
commerce of the United States of America in that:
(a) said San Francisco Bay is one of the great deep
water harbors of the world and is a port for great quantities
of waterborne commerce;
(b) said San Francisco Bay including submerged lands,
tidelands, and swamp and overflow lands, is also important
to the commerce of the United States of America as the
breeding grounds and natural habitat of fish, birds, and
Appendix 45
wildlife, and is essential to the development and growth of
oysters, shrimp, other shell-fish, and many fin-fish. The
commercial value of the fish which require the shallows of
the San Francisco Bay for their growth is many millions of
dollars and the revenues produced by sport fishing for ana-
dromous fish which must live in the estuary of the San
Francisco Bay during a portion of their life cycle, are mil-
lions of dollars. The San Francisco Bay is also one of the
great water-fowl areas of the United States of America and
is important as a place where migratory birds stop and feed.
Such water-fowl are also of commercial value in that hunt-
ers expend million of dollars in the San Francisco Bay area
in taking hundreds of thousands of such birds each year;
(c) said San Francisco Bay, and particularly the tide-
lands and swamp and overflow lands thereof, has great
commercial value to the United States of America in that it
constitutes a great facility for the production of salt and
thus creates millions of dollars in income ;
(d) said San Francisco Bay has a beneficial effect on the
climate of the populated areas surrounding it in that cools
and humidifies the air and provides an open space for the
diffusion of airborne smokes and wastes, all to the advan-
tage of commerce ;
(e) said San Francisco Bay has been and now is em-
ployed by the public and industry as a place for the disposal
of liquid wastes in great quantity, all to the advantage of
commerce ;
(f) said San Francisco Bay also has great commercial
and recreational value to the United States of America as
a place for pleasure-boating and other recreations ;
(g) San Francisco Bay has value to the commerce of the
United States as a place of great natural beauty:
(h) San Francisco Bay has value to the commerce of
46 Appendix
the United States as the location of many great public
transportation facilities.
Vill
Since the submerged and tidelands of the San Francisco
Bay were acquired by the State of California from the
Federal Government in 1850 and since the authorization
for the transfer of swamp and overflow lands to the State
of California from the Federal Government in the same
year, great damage has been done to the San Francisco
Bay and to the public interest and trust in said San Fran-
cisco Bay, which damage consists of, among other things:
(a) the reduction of the size of the San Francisco Bay
from 1850 to the present time by the filling of tidelands,
marshlands and submerged lands so that the area o fthe bay
has been reduced from 678 square miles to 425 square miles.
(b) the reduction of the basic fish and wildlife habitat
areas from approximately 300,000 acres to approximately
100,000 acres by diking, dredging and filling.
(c) the pollution of the waters of the San Francisco Bay
by the dumping of garbage and wastes therein and the loss
of the flushing characteristics of the San Francisco Bay
by the construction of obstructions therein.
(d) the substantial reduction in the quantity of shell-
fish, fin-fish, water-fowl, and other wildlife in the San Fran-
cisco Bay caused by the above listed destruction of habitat.
IX
Defendant Leslie Salt Company claims that it is the
owner of 52,000 acres of the submerged lands, tidelands,
and swamp and overflow lands of the San Francisco Bay
and that it holds said lands free from any public trust or
publie rights. Said claim is defective in that:
Appendix 47
(a) great portions of said 52,000 acres are submerged
lands which have never been authorized for private sale
by the State of California. Some of said submerged lands
have been filled unlawfully by defendant Leslie Salt Com-
pany or its predecessors in claim.
(b) substantial all of said lands are claimed by defend-
ant Leslie Salt Company by virtue of land patents issued
by the State of California to “swamp and overflowed”
lands. Title to much of the land claimed by Leslie Salt
Company under such patents was never perfected in the
State of California because it was never surveyed in com-
pliance with the Arkansas Swamp Lands Grant Act. Title
to other portions of the land claimed by Leslie Salt Com-
pany under said “swamp and overflowed” land patents is
in the State of California and not Leslie Salt Company
because the lands claimed never were swamp and over-
flowed lands but rather were tidelands and submerged
lands, and the “swamp and overflowed” lands patents did
not convey tidelands and submerged lands.
(ec) all of said lands below the line of ordinary high tide
are lands of a navigable waterway and are subject to the
publie trust for fisheries and navigation.
(d) many of said lands were oceupied and diked by the
Leslie Salt Company and predecessors pursuant to an
understanding with the state and federal] government that
they would be used only for certain purposes which had
substantial public benefits such as fishing, salt production
and agriculture, and were not intended to be given to the
Leslie Salt Company or its predecessors free from the
publie trust. Much of said lands has heen diked or filled
without public permission, even though they were subject
to the public trust.
48 Appendix
(e) In order to perfect such title as they might have in
those “swamp and overflowed” lands which had not been
surveyed in compliance with the Arkansas Swamp Lands
Grant Act, the defendant Leslie Salt Company and its
predecessors in claim were required under the provisions
of An Act to Quiet Land Titles in California, 14 United
States Statutes at Large, Chapter 218, to complete certain
procedures including the making of surveys, plats, and
maps, which have not been made and completed, and thus
title to hundreds of said acres was not perfected.
xX
In the vear 1959 the Legislature of the State of Cali-
fornia enacted a law as 1959 Statutes, Chapter 1885, a copy
of which is marked Exhibit A and attached hereto.
By the terms of 1959 California Statutes, Chapter 1885,
the Legislature of California purported to delegate to the
defendant members of the California State Lunds Commis-
sion, a part of the Executive Department of the defendant
State of California, the power to convey into private own-
ership, free of all public trust for navigation and fisheries,
any state lands which the California State Lands Commis-
sion in its sole discretion might choose from many square
miles of the San Francisco Bay, that is from any part of
the land “lying in the vicinity of San Francisco Bay south-
erly of latitude 37°40’ and being in Alameda, Santa Clara,
or San Mateo County.”
Said 1959 California Statutes, Chapter 1885, is in viola-
tion of the California Constitution in that (a) it is an un-
lawful delegation of the legislative power of the State of
California from the Legislature to the Executive Depart-
ment of the State of California, in violation of Article 3
of the California Constitution, (b) it authorizes a gift of
Appendix ; 49
a public thing of value to an individual or corporation
because though the act mentions an exchange of lands, it
sets forth no proper means of determining the value of
any lands purported to be granted to the State of Cali-
fornia thereunder, and such a gift is in violation of Article
4, Section 31, of the California Constitution; (c) it is an
unlawful local or special law contrary to Section 25, Article
24 of the California Constitution; (d) it purports to grant
to private persons or corporations special rights, privi-
leges, and immunities in violation of Paragraph 19, Section
25, Article 4 of the California Constitution.
XI
The defendants Robert H. Finch, Houston T. Flournoy,
and Gordon P. Smith, all of whom are executive officers of
the State of California, have, in their capacity as members
of the California State Lands Commission purported to
grant and convey to defendant Leslie Salt Company sover-
eign lands of the State of California which were navigable
waterways and would remain presently navigable water-
ways had they not been unlawfully filled in by defendant
Leslie Salt Company and its predecessors in claim of title
or its joint venturer, T. Jack Foster & Sons. By said pur-
ported grant of said lands, the defendants Robert IT. Finch,
Houston T. Flournoy, Gordon P. Smith, F. J. Hortig, Ron-
ald Reagan, Frank M. Jordon, and State of California, pur-
ported to release the public trust of navigation and fisher-
ies over said lands. Said lands are more particularly de-
seribed in Exhibit B attached to the Affidavit in Further
Support of Order to Show Cause filed herein on February
5, 1968. At the same time said defendants. acting under
eolor of authority of said 1959 California Statutes. Chap-
50 Appendix
ter 1885, purported to establish the boundary line between
most of the 52,000 acres of land claimed by defendant Leslie
Salt Company and the submerged and tidal waters of the
San Francisco Bay and thus replace the\line of high tide
as a border of the San Francisco Bay with an arbitrarily
fixed line and to surrender the public trust as to the por-
tions of the San Francisco Bay which are beyond that line.
Said purported exchange of lands and fixing of boundary
line was made without permitting the public to inspect any
map showing the exact location of the boundary settlement
or the lands to be purportedly exchanged, and members of
the public were refused their request to inspect such docu-
ments as the California State Lands Commission had show-
ing these things and also refused the opportunity to inspect
the appraisals of the land to be purportedly exchanged.
Said purported boundary settlement purports to release
the public trust beyond the purported boundary settlement
line whether or not said line is on the San Francisco Bay
side of the line of ordinary high tide.
XII
Substantially all of the lands purporting to be granted
by defendant Leslie Salt Company to the defendant State
of California are submerged lands which are navigable and
therefore are lands as to which defendant Leslie Salt Com-
pany had no right, title, or interest.
XII
Said 1959 California Statutes, Chapter 1885, is in viola-
tion of the laws and Constitution of the United States of
America in that said act purports to delegate the power to
release navigable waters from the public trust without the
consent of the Federal Government required under 33 U. S.
Appendix 51
C. A. Sections 401, 403, and 406, and thus in violation of
the power reserved to the Federal Government under the
Commerce Clause of the United States Constitution. It is
also in violation of Section 3 of the Act of Congress for
the Admission of the State of California into the Union,
Volume 9, U. S. Statutes at Large 452, 453, and it is in
violation of Section 1 of the 14th Amendment to the Con-
stitution of the United States of America, because it denies
to the plaintiffs their property rights in the use and enjoy-
mine? the San Francisco Bay without due process of law.
Said1959 California Statutes, Chapter 1885, is also in vio-
lation of the Commerce Clause of the Constitution of the
United States of America in that the Federal Government
has expressed itself as deeming the protection of fisheries
and wildlife in navigable waterways to be a matter of Fed-
eral Government concern. Said expression of the govern-
ment of the United States of America has been as follows:
(a) Memorandum of Understanding between the Secre-
tary of the Interior and the Secretary of the Army, a copy
of which is marked Exhibit FE and attached hereto;
(b) The enactment of various Acts of Congress to pro-
tect the fisheries and wildlife of the United States, for
example, Title 16 U.S. C. A. Section 742, and other sections
of Title 16 of the United States Code.
(c) The expressions of the United States Supreme Court
in Udall vs. FPC, (1967) 387 U. S. 428.
(d) Expressions in the Congressional record and in the
reports of congress together with the findings of House of
Representatives Bill No. 25 passed hy the House of Repre-
sentatives of the United States in February, 1968.
XIV
Said 1959 California Statutes. Chapter 1885, provides
that after the purported exchange of land actions will he
52 Appendix
had in the Superior Courts of the State of California be-
tween the private party to the exchange and the State
California to quiet title to the lands acquired by the private
party from the State of California. Said act makes no
provision for any member of the public to appear in such
proceedings and the Attorney General of the State of
California, who is designated as the person representing
the State of California at such proceedings is allied with
Leslie Salt Company in attempting to complete the con-
sumation of said purported exchange and boundary settle-
ment as soon as possible and has stated that he will not
inform plaintiffs of his intentions in regard to said quiet
title actions and will oppose the entry of plaintiffs into
such proceedings and opposes any public investigation of
the purported release of the public trust in said lands of
the San Francisco Bay. Unless they are restrained from
doing so defendants other than Title Insurance & Trust
Company intend to and will cooperate in obtaining a consent
decree to quiet title against the State of California and in
favor of Leslie Salt Company in said lands.
XV
The Act of the California Legislature, 1959 California
Statutes, Chapter 1885, is part of a series of events in
which the Legislature of the State of California, the
Executive Department of the State of California, and
land developers including defendant Leslie Salt Company
have acted together to purport to terminate the public
trust in the lands of the San Francisco Bay, fill those
lands with public monies, and then permit and encourage
those l:inds to be developed for whatever private purpose
that will produce the largest profit, without any recognition
of the said public trust in said lands. Though requested to
CS
Appendix 53
do so, the Courts of the State of California have not acted
to halt the said termination of the public trust and the
filling of the San Francisco Bay. Plaintiffs are informed
and believe and upon such information and belief allege
that defendant Leslie Salt Company is moving its salt
production operations to Australia and intends to, and
will, unless restrained by this Court, fill great portions of
the San Francisco Bay without any permit to do so as
required by Title 16, United States Code Annotated, Sec-
tions 401 and 403.
Defendant Leslie Salt Company has diked and cut off
from the bay and filled thousands of acres of former sub-
merged and tidelands of the San Francisco Bay without
proper permission under Title 16 United States Code
Annotated, Sections 401 and 403, and such permission as
has been given has been made in such a piecemeal way
that it is impossible to ascertain what the Federal Govern-
ment has agreed to permit Leslie Salt Company to do in
the San Francisco Bay, but it is clear that most of said
permission was given for Leslie Salt Company to operate
salt beds in the San Francisco Bay and not to build sub-
divisions therein, as Leslie Salt Company is now doing and
threatening to do.
Plaintiffs herein reside and own real property so close
to San Francisco Bay that their health and their enjoyment
of their property is materially affect by the filling of San
Francisco Bay and they will be irreparable injured unless
defendant Leslie Salt Company is restrained from obstruc-
tion of the San Francisco Bay and further construction
therein. Said injury will include destruction of fisheries and
wildlife from which plaintiffs personally benefit and de-
struction of the flushing characteristics of the San Francisco
Bay and its climate cooling affect by the filling and obstrue-
PEN AED 2 it~ aseh ce
54 Appendix
tion and filling thereof. Said defendants State of California
and Kxecutives thereof intend to and will aid said Leslie
Salt Company in securing freedom from the public trust
in which plaintiffs have a special interest by reason of the
proximity of their real estate and residences to the San
Francisco Bay. Plaintiffs will be irreparable injured by
said cooperation of the State of California and the defend-
ant officials thereof with the defendant Leslie Salt Company
and they have no adequate remedy at law unless this
Court restrains said State of California from taking any
further steps to divest the public trust in the lands of San
Francisco Bay in favor of Leslie Salt Company without
due process of law.
That the State of California has aided the land developers
in removing the public trust in the waters of the San
Francisco Bay and allowing the filling of said bay with
publie funds is more particularly set forth in the Affidavit
in Further Support of Order to Show Cause filed herein on
February 5, 1968.
XVI
The lands purporting to be exchanged, all of which are
lands in which there is a publie trust, and most of which
are already state lands, are particularly described in Ex-
hibit B to the Affidavit in Further Support of Order To
Show Cause filed herein on February 5, 1968.
Wherefore plaintiff prays judgment and decree as fol-
lows:
1. that defendants and each of them be enjoined from
participating in any proceedings to complete or quiet title
to the above-referred to purported exchange of lands and
boundary settlement;
2. that the documents to effect said exchange of lands
al ISLES BE DES
Appendix 55
and the said Act of the Legislature, 1959 Statutes Chapter
1885, be declared void and in violation of the laws and
Constitution of the United States of America, and that
the said documents be cancelled,
3. that the defendant Leslie Salt Company he enjoined
from filling or obstructing the San Francisco Bay in any
manner or for any purposes not authorized under Title
33 U. S. C. A. Sections 401 and 403, and that said Leslie
Salt Company be ordered to remove any obstructions now
existing in violation of Title 33 U. S. C. A. Sections 401,
403, and 406, or in violation of the rights of plaintiffs in
the San Francisco Bay.
4. that the rights of plaintiffs and the rights of the
inhabitants of California and the citizens of the United
States in the lands of the San Francisco Bay be declared to
be in the nature of a public trust in waterways and wildlife
areas both as to the lands which are the subject of the
purported exchange and boundary settlement and also
as to the other portions of the San Francisco Bay or former
San Francisco Bay filled by Leslie Salt Company as to
which Leslie Salt Company claims exclusive private own-
ership.
5. for a direction that there be no filling of San Fran-
cisco Bay lands by Leslie Salt Company unless it shall
have first obtained a permit under Title 33 U. 8S. C. A. See-
tions 401, 403, and 406 clearly authorizing such filling for
the specific purpose as to which the lands are being filled.
6. for such other and further Orders as to the Court
seems proper.
Funsten & Caldwell
Attorneys for Plaintiffs
By: /s/ James W. FunsTEeN
James W. Funsten
56 Appendix
Verification
State of California .
City and County of San Francisco
Luman C. Drake, being sworn, deposes and says:
He is one of the plaintiffs in the above entitled matter.
Ile has read the foregoing complaint and knows the con-
tents thereof; the same is true of his own knowledge, except
as to the matters which are therein stated upon his informa-
tion and belief, and as to those matters he believes it to be
true.
/s/ Liuman C. Drake
Luman C. Drake
Subscribed and Sworn to
Before me, A Notary Public,
this 16th of February, 1968.
/s/ Frep Herrincton
Notary Public in and for said
City and County of San Francisco
and State of California
[Seal]
Appendix 57
EXHIBIT A
CHAPTER 1885
An act authorizing the State Lands Commission to exchange
the interest of the State in parcels of land in the vicinity
of San Francisco Bay for the interest of persons in other
parcels of land in the vicinity of San Francisco Bay for
the purposes of commerce, navigation and reclamation and
the settlement of titles and boundaries and providing for
actions against the State to quiet title to the lands ex-
changed, and authorizing actions to quiet title against the
State the lands conveyed by the State pursuant to Chapter
353 of the Statutes of 1955.
[ Approved by Governor July 16, 1959. Filed with
Secretary of State July 17, 1959. ]
The people of the State of California do enact as follows:
Section 1. The State Lands Commission is hereby au-
thorized to convey to any person or corporation all right,
title and interest of the State in and to parcels of land, ex-
cept land used for highway purposes, lying in the vicinity of
San Francisco Bay southerly of latitude 37° 40’ and being
in Alameda, Santa Clara or San Mateo County, in exchange
for and upon there being conveyed to the State by such
person or corporation all right, title and interest of such
person or corporation in other parcels of land lying in the
same vicinity if the commission finds: (a) that such ex-
change is necessary in order to settle and confirm the title
of the State in and to the parcels te be conveyed to it and
to establish the boundaries thereof, and (b) that such ex-
change is in the interest of the promotion of commerce, navi-
gation and reclamation, and (c) that the value of the
interests of the State in the parcels of land to be conveyed
SS ee ee
GLEE EIEN
ELIE I Oe GEES
ay
EMER RRS OER
SY
SSI
a
58 Appendix
by it is no greater than the value of the interests to be
acquired by the State in such other parcels of land in such
exchange. Such findings, if and when made by the commis-
sion, shall be conclusive and binding upon all persons. The
commission shall determine the parcels to be conveyed by
the State and the parcels to be conveyed to the State in such
exchange.
See. 2. The exchange herein provided for is authorized
for the purpose of promoting commerce, navigation, flood
control and reclamation, and it is hereby determined that
upon completion of any exchange of lands pursuant to this
act the parcels conveyed by the State pursuant thereto will
no longer be necessary or useful for navigation or fisheries
and such parcels, upon the delivery of the respective con-
veyances, are hereby freed of the public trust for naviga-
tion and fisheries.
See. 3. Before making any exchange herein authorized
the comiuission shall publish notice of its intention to make
the exchange. The notice need not particularly describe the
lands or the interest therein proposed to be exchanged but
shall refer to the maps and records on file with the commis-
sion for a detailed description thereof and for further par-
ticulars. Any affected city or county, within thirty (30) days
after the publication of such notice, may request in writing
to the commission that a hearing be held with respect there-
to. Upon receipt of such request, the commission shall hold
such a hearing and give not less than ten (10) days written
notice thereof to each city or county making such. request
and to the Department of Natural Resources. The notice
herein provided for shall be published in a newspaper of
general circulation published in each of the counties in
which any of the lands proposed to be exchanged are lo-
eated. Authority to hold the hearing herein provided for
may be delegated by the commission to its officers or
employees.
Appendiz 59
See. 4. The exchange herein authorized shall be deemed
a compromise agreement entered into under Division 6 of
the Public Resources Code as said term is used in Section
6401 of the Public Resources Code and the provisions of
Chapter 5, Part 1, Division 6 of the Public Resources Code
shall not be applicable thereto.
See. 5. The grantee or grantees of any lands conveyed
by the State pursuant to the provisions of this act, or pursu-
ant to the provisions of Chapter 353 of the Statutes of
1955, or his or their sueeessor or successors in interest, im-
mediate or remote, is and are hereby authorized to bring
suit against the State of California to quiet title to the lands
so conveyed, or to obtain declaratory relief determining
the validity of the title so conveyed. Service of process in
any such suit shall be made upon Chairman of the State
Lands Commission and the Attorney General, and it shall
be the duty of the Attorney General to represent the State
in any such suit. In any such action, whether or not judg-
ment is given against the State, no costs shall be recovered
against the State. Any action brought under the provisions
of this act shall he commenced prior to January 1, 1963.
CHAPTER 1886
An act to amend Section 5 of the Contra Costa County Flood
Control and Water Conservation District Act (Chapter
1617, Statutes of 1951), relating to the powers of the dis-
trict.
[ Approved by Governor July 16, 1959. Filed with
Secretary of State July 17, 1959]
The people of the State of California do enact as follows:
Section 1. Section 5 of the act cited in the title hereof
is amended to read:
60 Appendix
See. 5. The district is hereby declared to be a body cor-
porate and polite and as such shall have, in addition to the
other powers vested in it by this act, the following powers:
EXHIBIT E
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE SECRETARY OF THE INTERIOR
AND
THE SECRETARY OF THE ARMY
In recognition of the responsibilities of the Secretary of
the Army under sections 10 and 13 of the Act of March 3,
1899 (33 U.S.C. 403 and 407), relating to the control of
dredging, filling and excavation in the navigable waters of
the United States, and the control of refuse in such waters,
and the interrelationship of those responsibilities with the
responsibilities of the Secretary of the Interior under the
Federal Water Pollution Control Act, as amended (33
U.S.C. 466 et sec.), the Fish and Wildlife Coordination Act,
as amended (16 U.S.C. 661-666e), and the Fish and
Wildlife Act of 1956, as amended (16 U.S.C. 742a et sec.),
relating to the control and prevention of water po!lution
in such waters and the conservation of the Nation’s natural
resources and related environment, including fish and wild-
life and recreational values therein; in recognition of our
joint responsibilities under Executive Order No. 11288
to improve water quality through the prevention, control,
and abatement of water pollution from Federal and fed-
erally licensed activities; and in recognition of other pro-
visions of law and policy, we, the two Secretaries, adopt the
following policies and procedures:
US ae tenants ;
:
LA
Appendix 61
POLICIES
1. It is the policy of the two Secretaries that there shall
be full coordination and cooperation between their respec-
tive Departments on the above responsibilities at all or-
ganizational levels, and it is their view that maximum ef-
forts in the discharge of those responsibilities, including
the resolution of differing views, must be undertaken at the
earliest practicable time and at the field organizational
unit most directly concerned. Accordingly, District Engi-
neers of the U.S. Army Corps. of Engineers shall coordi-
nate with the Regional Directors of the Secretary of the
Interior on fish and wildlife, recreation, and pollution prob-
lems connected with dredging, filling, and excavation oper-
ations to be conducted under permits issued under the
1899 Act in the navigable waters of the United States, and
they shall avail themselves of the technical advice and
assistance which such Directors may provide.
2. The Secretary of the Army will seek the advice and
counsel of the Secretary of the Interior on difficult cases.
If the Secretary of the Interior advises that proposed oper-
ations will unreasonably impair natural resources or the
related environment, including the fish and wildlife and
recreational values thereof, or will reduce the quality of
such waters in violation of applicable water quality stand-
ards, the Secretary of the Army in acting on the request
for a permit will carefully evaluate the advantages and
benefits of the operations in relation to the resultant loss
or damage, including all data presented by the Secretary
of the Interior, and will either deny the permit or include
such conditions in the permit as he determines to be in the
publie interest, including provisions that will assure com-
pliance with water quality standards established in accord-
ance with law.
62 Appendix
PROCEDURES FOR CARRYING OUT
THESE POLICIES
1. Upon receipt of an application for a permit for dredg-
ing, filling, excavation, or other related work in navigable
waters of the United States, the District Mngineers shall
send notices to all interested parties, including the appro-
priate Regional Directors of the Federal Water Pollution
Control Administration, the United States Fish and Wild-
life Service and the National Park Service of the Depart-
ment of the Interior, and the appropriate State conserva-
tion, resoures, and water pollution agencies.
2. Such Regional Directors of the Secretary of the Interior
shall immediately make such studies and investigations as
they deem necessary or desirable, consult with the appro-
priate State agencies, and advise the District Engineer
whether the work proposed by the permit applicant, includ-
ing the deposit of any material in or near the navigable
waters of the United States, will reduce the quality of such
waters in violation of applicable water quality standards or
unreasonably impair natural resoures or the related en-
vironment.
3. The District Engineer will hold public hearings on per-
mit applications whenever response to a public notice
indicates that hearings are desirable to afford all inter-
ested parties full opportunity to be heard on objections
raised.
4. The District Engineer, in deciding whether a permit
should he issued, shall weigh all relevant factors in reach-
ing his decision. In any case where Directors of the Secre-
tary of the Interior advise the District Engineers that
proposed work will impair the water quality in violation
of applicable water quality standards or unreasonably im-
Appendix 63
pair the natural resources or the related environment, he
shall, within the limits of his responsibility, encourage the
applicant to take steps that will resolve the objections to
the work. Failing in this respect, the District Engineer
shall forward the case for the consideration of the Chief
of Engineers and the appropriate Regional Director or
the Secretary of the Interior shall submit his views and
recommendations to his ageney’s Washington Headquarters.
5. The Chief of Engineers shall refer to the Under Sec-
retary of the Interior all those cases referred to him con-
taining unresolved substantive differences of views and he
shall include his analysis thereof, for the purpose of ob-
taining the Department of Interior’s comments prior to
final determination of the issues.
6. In those cases where the Chief of Engineers and the
Under Secretary are unable to resolve the remaining issues,
the cases will be referred to the Secretary of the Army for
decision in consultation with the Secretary of the Interior.
7. Tf in the course of operations within this understanding,
either Secretary finds its terms in need of modification,
he may notify the other of the nature of the desired changes.
Tn that event the Secretaries shall within 90 days negotiate
such amendment as is considered desirable or may agree
upon termination of this understanding at the end of the
period.
/s/ Wm. K. Upatn Dated July 13, 1967
Secretary of the Interior
Wi.sur LESNER Dated July 13, 1967
Secretary of the Army
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.