# Appendix — Sierra Club v. Morton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1972 - **Citation:** 405 U.S. 727 ## Text OFFICE GCPY | “ee __ APPENDIX | . Ou the Supreme Court Runiied Staten Ocroser TERM, 7— gees No. $39 Jo-3F Srerra Cuivus, a California corporation, Petitioner a Rogers C. B. Morton, individually, and as Secretary of tae Interior of the United States; Jonn_ S. MoLaventrm, individually, and : as Svperintendent of Sequoia National Park ; CLurrorp M. Harpin, individually, and as the Secretary of Agri- culture of the United States; J. W: Dervema. in- dividually, and as Regional Forester, Forest Service, and M. R. James, individually, and as Forest Supervisor of the Sequoia National Forest, Respondents by SEER On Writ of Certiorari tthe United tates Court of Appeals fr the Mint Ooi a oe re ee a Potton for Onrtiorat Fld November 6, 1970 Certiorari Granted February 22, 2971 \ APPENDIX e Supreme Court OF THE United States Ocroser TreRM, 1970 No. 939 Srmenra Cuius, a California corporation, Petitioner vs. Roarrs C. B. Morton, individually, and as Secretary of the Inte - of the United States; Joan S. McLavueu.in, individually, an as Superintendent of Sequoia National Park ; CLirrorp M. Harpin, individually, and as the Secretary of Agri- cultare of the United States; J. W. Demvema, in- dividually, and as Regional Forester, Forest Service, and M. R. James, individually, and as Forest Supervisor of the Sequoia National Forest, Respondents On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit | l=. 4. | INDEX Chronological List of Relevant Docket Entries ...... 2 Comeaniet, Tie samen 5, TOP 8 tt te we tg es 3 Notice of Motion and Motion for Preliminary Injunction, filed June 5,1969 ...... 13 Sample Term Special Use Permit ............. 15 Sample Special Use Permit ............. Mae 23 Plaintiff's Affidavit of J. Michael McCloskey including exhibits filed Ju 51969 2. eee eu Soe ee Defendants’ Affidavit of Richard E. Deffebach, fied Famed], 1969 006 ee cle te ee te 159 Defendants’ Affidavit of W. S. Davis, See Fae TITIES ak a ce Se Seek ee we ee 164 Defendants’ Affidavit of Donn B. Tatum, filed June 27,1969 . . wee ee ee eee 174 Defendants’ Affidavit of John S. McLaughlin, Tee PU i BE as os & wk ewe te ee ee 180 Plaintiff's Affidavit of Matthew P. Mitchell, ah” EE, eae ee ne 183 Memorandum of Decision of the United States District Court, filed July 23,1969 .......... 186 Preliminary Injunction, filed August 4,1969 ....... 200-7 Defendants’ Joint Answer, filed August 12, 1969 .... 203 Decision of the Ninth Circuit Court of Appeals, entered September 16, 1970 tN CHRONOLOGICAL LIST OF RELEVANT DOCKET ENTRIES June 5,1969 __ Plaintiff filed complaint and notice of motion : for preliminary injunction with: supporting ae documents + ri 2 | | July 23,1969 Memorandum of decision re grant of prelimi- ; nary injunction filed 1 Aug. 4, 1969 Preliminary injunction filed , ; a . Aug. 12,1969 Answer filed Sept. 19,1969 Notice of appeal filed Sept. 16,1970 Opinion and judgment of the Court of Appeals for the Ninth Circuit entered FELDMAN, WALDMAN & KLINE ORIGINAL LEO E. BORREGARD FILED LELAND R. SELNA, JR. — JUN -5 1969 MATTHEW P. MITCHELL ; 2700 Russ Building CLERK, U. S. DIST. COURT San Francisco, California 94104 SAN FRANCISCO Telephone: 981-1300 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORN‘A SIERRA CLUB, a non-profit California corporation, Plaintiff, vs. WALTER J. HICKEL, individually and as Secretary COMPLAINT of the Interior of the United States; JOHN S. McLAUGHLIN, individually and as Superinten- Civil Action dent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- No. 51464 culture of the United States; J. W. DEINEMA, individually, and as Regional Forester, Forest Service; and M. R. JAMES, individually, and as Forest Supervisor of the Sequoia National Forest, Defendants. os JURISDICTION 1. This action is brought under 5 U.S. ss 701-706 (Administrative Procedure Act § 10), 28 USC § 1331(a), 28 USC § 1361, and 28 USC s 2201, (Detlaratory Judgments Act). : 2. The matter in controversy exceeds $10,000 exclusive of interest and costs and arisés under the federal law as herein- after more fully appeafs. EPEN EMA pe Raat mies eee hail FIRST CLAIM FOR RELIEF 3. "Plaintiff SIERRA CLUB is a non-profit corporation organized and operating under the laws of the State of California, with its principal place of business in San Francisco, California since 1892. Membership of the club is approximately 78,000 nationally, with approximately 27,000 members resid- ing in the San Francisco Bay Area. For many years the SIERRA CLUB by its activities and conduct has exhibited a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country, regular- ly serving as a responsible representative 0: persons similarly interested. One of the principal purposes of the SIERRA CLUB is to protect and conserve the national resources of the Sierra = Nevada Mountains. Its interests would be vitally affected by the acts hereinafter described and would be aggrieved by those acts of the defendants as hereinafter more fully appears. ‘ 4. (a) Defendant WALTER J. HICKEL (hereinafter 3 “HICKEL”) is Secretary of the Interior of the United States, and the matters hereinafte> referred to as pertaining to “‘inte- rior” or the “National Park Service” are within the “‘Depart- ment of Interior” of which he is the chief officer. His predecessor in office was Stewart L. Udall (hereinafter “Udall’’). (b) Defendant JOHN S. McLAUGHLIN (hereinafter “McLAUGHLIN’’) is Superintendent of Sequoia National Park. (c) Defendant CLIFFORD M. HARDIN )hereinafter “HARDIN’’) is Se¢¥etary of Agriculture of the United States, and the matters hereinafter referred to as pertaining to “Agri- culture” or the “National Forest Service’ are within the * “Department of Agriculture” of which he is the chief officer. His predecessor in office was Orville W. Freeman (hereinafter ““Freeman’’). (d) Defendant J. W. DEINEMA (hereinafter *‘DEINEMA’’) is Regional Forester of the Forest Service for the region which includes the Sequoia National Game Refuge. IT ETS y EIR eH fe OW Py ee AT See ne x t Sere a ATS ood 5 ~ (e) Defendant M. R. JAMES (hereinafter ‘“JAMES”’) is the Forest Supervisor in the National Forest Service in charge of the Sequoia National Forest. é 5. In or about February 1965, the National Forest Serv- ice (hereinafter “‘Forest Service’’) solicited bids for the con- struction and operation of a year-round commercial-recreational resort in and near the Mineral King Valley (hereinafter ‘Mineral King”) which is located in the Sequoia National Game Refuge of California. The game refuge is more fully described in the Act of July 3, 1926 (P.L. 69-465, 26 Stat. Ch. 744, Sec. 6). 6. In or about January 1966, the Forest Service granted to Walt Disney Productions, Inc. (hereinafter ‘‘Developer’’) a preliminary permit authorizing it to make surveys and vrepare plans for development of Mineral King. 7. On or about 21 January, 1969, the Forest Service approved the proposed plan of Developer for the commerciai- recreational development of Mineral King. Plaintiff is informed and believes and based upon such information and belief alleges that under the approved plan the development will have at least the following features: (a) An “alpine village’ and associated structures permancnt in nature including parking structure, restaurants, lodging facilitie;, sewage treatment facilities, swimming and ice skating facilities which will physically occupy and affect areas far in excess of 80 acres of land: ee eat (b) Ski-lifts, cleared slopes, lift lifes. trails, roads, a cog-assisted railroad, water and stream contro! features, ava- lanche dams and other recreational “improvements” throughout 13,000 acreas directly affecting by actual construction and development an area occupying nearly 400 acres of land: (c) The year-long use of the resort will include the presence in said area of an estimated 1,200 vehicles per hour each way on an access road which is proposed to cross Sequoia National Park to the development, 3,600 parked vehicles. the lodging of 3,310 transient guests per night. up to 8,500 skiers RAE TT REET Se Som een PADI A is EE ee "yak - Sina bor Sow. 8 BOA Rees fee tea EE Me ner day, the permanent housing of 700 or move employees and 986,000 or more total visitors per year as early as 1978; and (d) The exact nature of other details is not yet known to plaintiff, witich prays leave to insert them when discovered. 8. The Forest Service has announced 2nd plaintiff alleges on information and belief that defendants HARDIN, DEINEMA and JAMES intend to issue interim special use permits for the actual commencement of construction and operation of the described development in or about the summer of 1969. In the meantime, the Forest Service has issued a permit under which employees of Developer continue to make studies and arrange- ments for the construction and operation of the commerc-ial- recreational development. Also in the meantime, the Forest Service continues to assign personnel and expend public monies in making studies and other preparations for the eventual opera- tion and administration of the Mineral King development. ae 9. The approval of the described plans and the impend- ing issuance of permits to Developer for construction and opera- tion in accordance»with those plans and the acts of defendants HARDIN, DEINEMA and JAMES in association therewith are in excess of statutory jurisdiction, authority and limitations, are not in accordance with law, are arbitrary, capricious and consti- tute. an abuse of discretion in that (among oiher things) the described acts are: (a) in violation of the provisions of the Act of March 4, 1915, as amended July 28, 1956 (38 Stat. 1101, 70 Stat. 708; 16 USC s 497) which limits the size, terms and manner of occupation of lands for resorts and associated facilities in the national forests and which is far exceeded by the subject “= development; >) rn (b) in violation of the provisions of the Act of June 4, 1897, as amended (30 Stat. 35, 33 Stat. 628, 76 Stat. 1157 and 4 78 Stat. 745; 16 USC § 551) regarding the permit power of the Secretary of Agriculture, which has been and will be exceeded: \ See gees (c) beyond the jurisdiction of the said defendants in that responsibility for conservation of game, birds and wildlife in Sequoia National Game Refuge and other such sanctuaries was transferred to the Secretary of the Interior by the Reorgani- zation Act of 1939 (53 Stat. 1431, Ch. 193, Sec. 4; 53 Stat. 813); re : (d) in vioiation of the provisions of the Act of July 3, 1926 (P.L. 69-465, 1926 Stats. Ch. 744, Sec. 6) establishing the Sequoia National Game Refuge whose purposes are contravened by the subject development; (e) in violation of Forest Service rules and regulations, and in violation of appli~able principles of administrative law, in that it has declined and refused to hold public hearings on the question of whether Mineral King should be developed, or how it should be developed for commercial-recreational purposes or for any other purpose; and (f) in violation of Forest Service rules and regulations, and in violation of fundamental principles of administrative law in that it has acted without due consideration of the factors which it is required to consider in reaching a decision or wheth- er Mineral King should be developed, or how it should be devel- oped, for recreational purposes. 10. There exists a present controversy between plaintiff anc defendants with respect to the matters hereinbefore set forth. 11. Defendants have acted, are acting and threaten to continue to act in violation of the law, as hereinbefore set forth. Unless restrained, they will cause, or permit to be caused, damage to Mineral King which will le irreparable, in part. for many human generations, and irr2parable. in part. for all eternity. 12. There are no administrative remedies available to piain- tiff, and plaintiff has no adequate remedy at law. WHEREFORE, plaintiff prays as hereinafter set forth. SECOND) CLAIM FOR RELIEF 13. Paragraphs 1-9 ‘of the First Claim for Relief are incor- porated herein by reference. 14. In order to provide access to the proposed commer- cial-recreational development at Mineral King, the Forest Service sought permission from the National Park Ser,.:ce and the Secreta-y of Interior for the construction of 2 highway, 9.2 miles of which would cross Sequoia Nationa! Park. 15. In or about December 1967, Secretary Udall granted formal approval of the routing of that highway (which would be constructed and maintained by the State of California). Approval for a right-of-way, construction and operation was expressly left open pending further study concerning the design standards of the highway. Plaintiff alleges on information and belief, however, that agreement on design standards is near and upon such agreement, defendants HICKEL and MCLAUGHLIN will issue their approval for a right-of-way, construction and operation of the highway across Sequoia National Park and that the State of California will let contracts for the commencement of construction upon issuance of that approval. 16. Plaintiff is informed and believes and based upon such information and belief alleges that the purpose of the proposed highway would be simply to provide a means to cross the Sequoia National Park and serve the Mineral King development rather than to serve any fundamental purpose of the Park. Plain- tiff further alleges on information and belief that the construc- tion of said road in Seauoia National Park would destroy or otherwise adversely affect the scenery, natural and historic ‘objects and wildlife of the park and would impair the enjoy- ment of the park for future generations. 17. The approval of the routing of said access road and the impending issuance of authorization for rights-of-way, construc- tion, anc operation of said road and the acts of defendants HICKEL and McLAUGHLIN in connection therewith are in excess of their statutory jurisdiction, authority and limitations, are not in accordance with law, are arbitrary, capricious and constitute an avuse of discretion in that (among other things) the described acts are: (a) in violation of the provisions of the Act of August 25, 1916, as amended (39 Stat. 535, as amended; 16 USC 5s 1) which prohibits uses of the national parks which do not conform to the fundamental purposes of said parks; (b) in violation of the provisions of tke Act of September 25, 1890 (26 Stat. 478, 16 USC 541 and § 43), establishing Sequoia National Park as a public park and impos- ing the duty upon the Secretary for the “preservation from injury of all timber, natural curiosities or wonders within said park, and their retention in their natural conditions”; (c) in violation of regulations requiring a public hear- ing with respect both to the general corridor to be occupied by the proposed road and to its design, as set forth in 34 Fed. Reg. 1405 (January 29, 1969). Purported repeal of those regulations _ was not in accordance with 5 USC s553(b) and therefore is without legal effect. Nevertheless, unless restrained, defenc ants HICKEL_ and McLAUGHLIN threaten to proceed to permit the proposed road to be constructed across Sequoia National Park without first holding the public hearing required by the afore- ‘ said regulations; and (d) in violation of Park Service rules and reguiations, and fundamental principles of administrative law, in that defendants HICKEL and McLAUGHLIN have acted without due consideration of the factors which they are required by law to consider in reaching a decision upon whether an enlarged - road across Sequoia National Park should be permitted for purposes nc! oenefiting that Park and. if so, what type of road should be permitted. 18. There exists a present controversy between plaintiff and defendants with ake to, the matters hereinbefore set * forth. ah. — — > te ee BLL LL EELS ALOE OEE LED e se SOL SPO ME Fa "% — ERC na a aa oniicaid TT POIS TER te ate 10 rm 19. Defendants HICKEL and McLAUGHLIN have acted, are acting, and threaten to continue to act in violation of the law, as hereinabove set forth. Unless restrained, they will cause, or permit to be caused, damage to Sequoia National Park which will be irreparable, in part, for many human generations, and irreparable, in part, for all eternity. 20. There are no administrative remedies available to plain- tiff, and plaintiff has no adequate remedy at law. WHEREFORE, plaintiff prays as hereinafter set forth. PRAYER WHEREFORE, plaintiff prays judgment as follows: : 1. Against defendants HARDIN, DEINEMA and JAMES, and each of them, for a judgment declaring that the approval given on or about 21 January, 1969, of the Walt Disney Produc- tions, Inc. Mineral King Development Plan by defendants HARDIN, DEINEMA and JAMES, and each of them, and the threatened issuance of permits for construction and operation in furtherance thereof is in violation of law and therefore null and void, to wit, in violation of each and all of the following: 16 USC 8497; 16 USC $551; P.L. 193, 84 (the Reorganiza- tion Act of 1939); the Act of July 3, 1926, establishing the Sequoia National Game Refuge; and fundamental principles and requirements of administrative law. _ 2. For both a preliminary and permanent injunctio enjoining defendants HARDIN, DEINEMA and JAMES, and each of them, and their successors in office and the respective employees, servants, attorneys and agents thereof, and all other persons, in active concert or participation with them, from granting any permits, rights of way, approvals, or taking any action whatsoever toward the implementation of said Develop- ment Plan above referred to or any otter development of like or similar nature thereto. 3. Against defendants HICKEL and McLAUGHLIN, and il each of them, for a judgment declaring that the aforementioned approval of the routing of a highway across and through the Sequoia National Park by defendants HICKEL and icLAUGHLIN, and each of them, and/or their predecessors i in office, and the threatened issuance_of app way, construction and operation of a highway across and through said Sequoia National Park is in violation of law and therefore null and void, to wit,in violation of each and all of the following: 16 USC 51; 16 USC 541, 43, 34 Fed. Reg. 1405 (January 29, 1969); Park Service rules~and regulations; and fundamental principles and requirements of administrative law. ____ 4. For_both—a- preliminary and permanent injunction enjoining defendants HICKEL and McLAUGHLIN, and each of them, their successors in office and the respective employees, servants, attorneys and agents thereof and all other persons, in active concert or participation with them, from taking any action whatsoever toward authorizing or approving (i) design standards or rights of way of said highway or any other of similar or like purpose; (ii) construction or maintenance of said highway or any other of similar or like purpose by the State of California or ary other e1.tity or person. 5. Grant to plaintiff such other further relief as to this Court may appear just and proper, including costs and disbursements. Dated at San Francisco, June 5, 1969. FELDMAN, WALDMAN & KLINE LEO E. BORREGARD LELAND R. SELNA, JR. MATTHEW P. MITCHELL By Leland R. Selna, Jr. —__ 7 ___Attorneys for Plaintiff ERG - JASPERSON Sierra Club GREGORY ARCHBALD _— Of Counsel _ ‘ irenesesissece2cns emer rere en error ST errno TARE ete satrt 12 STATE OF CALIFORNIA ss. No. 51464 CITY & COUNTY OF SAN FRANCISCO J. MICHAEL McCLOSKEY, yeing first duly sworn, deposes and says: That he resides at Alameda SE California; that he is the Conservation Director and Chief of Staff of The Sierra Club, a non-profit California corporation, plaintiff herein; that he has read the foregoing complaint, and that he is informed and be- lieves the matters therein to be true and on tha ground ee | that oe matters stated therein are true. J. Michael McCloskey J. Michael McCloskey Subscribed and sworn t y of June, 1969. LINDA A. UMBERTUS Notary Public My Commission expires: _—_ LINDA A. UMBERTUS - NOTARY PUBLIC - CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO My Commission Expires January 20, 1973 13 ; FELDMAN, WALDMAN & KLINE ORIGINAL LEO E. BORREGARD FILED JUN -5 1969 LELAND R. SELNA, JR. CLERK, U.S. DIST. COURT MATTHEW P. MITCHELL SAN FRANCISCO 2700 Russ Bui)ding ; San Francisco, California 94104 Telephone: 981-1300 Attorneys for Plaintiff UNITED STATES DISTRICT COURT: NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, Plaintiff, vs. WALTER J. HICKEL, individually and as Secretary coma we of the Interior of the United States; JOHN S. PRELIMINARY MCLAUGHLIN, individually and as Superin- INJUNCTION tendent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- Civil Action culture of the United States; J. W. DEINEMA, individually, and as Regional Forester, Forest No. 51464 Service; and M. R. JAMES, individually, and as 5 . Forest Supervisor of the Sequoia National Forest, Defendants. TO DEFENI)ANTS ABOVE NAMED | PLEASE TAKE NOTICE that on June 30, 1969, at 10:00 A.M. or as soon thereafter as counsel can be heard before the Law and Motion Department of the above-entitled Court, 450 Golden Gate Avenue, San Francisco, Califomia, plaintiff SIERRA CLUB, a non-profit corporation, will move the Court for a preliminary injunction enjoining the above-named defend- ants, and each of them, and their respective agents, servants, employees and attorneys and all persons in active consert and participation with them in accordance with and as prayed for in 14 the verified complaint herein and filed and served herewith pending the final hearing and determination of this action. Said motion will be made upon said. complaint, the Affidavit of J. Michael McClosky and the Memorandum of Points and Authori- ties, all served and filed herewith, and upon the pleadings, records and files in the action and such evidence as may be adduced at the time of hearing. Dated at San Francisco, June 5, 1969. FELDMAN, WALDMAN & KLINE LEO E. BORREGARD LELAND R. SELNA, JR. MATTHEW P. MITCHELL By LELAND R. SELMA, SR. Attorneys for Plaintiff Sierra Club ROBERT W. JASPERSON GREGORY ARCHBALD Of Counsel Balted Beier Dep of aoe . OF PanenTTEE SAMPLE TERM SPECIAL USE PERMIT wNO OF VEE Of ara 4, 191% ae ememsind Joly 38 way = s California _ Sequots ule River Pemissics is hereby granted to__ (suecessful_ proponent) rd hereinafter called the pormittes, to use subject to the conditions sot out below lands or improvements for the period of x» yeers from the date hereol: fousschop 26 | | ‘The exercise of day of the privileges granted tx thie permit ccastitutes acceptance of all the conditions of th! I gaps any Hh ft Wil id Hite iia tds HH PAE ! He wii ii 4] HE HHH He (! i LEE i fe lity ly Hi it! ialeatpa i ih Fate fit ce traasf: occupency of the premise, @ prospective circumstances may warrant, bis ccatinued may be for the unexpired term of thie permit immediately notify the forest supecviser. » and is willing that bis future permittee as existing sbal) oa the land reestablish title to persca te whom title to said improvements shail have been wale owned ability ifthe led ase end be authorized if © permit to him, which justify. — 1B. Ia cans of change of address, permittee shal! » the Secretary of Agriculture or any ot{icial of the ine that the rublic interest requires termination of this written notice to the permittee of such cetermicatica, and the at er any extension thereof hority eball d thirty daye’ purchase the for The amount of the consideration shal! terminate ight m the HE : = to the improvements re- a ead the United States shall be obligated to pay an aod ag be fixed by mutual agreement between the United impr 1 be accepted by the permitteo ia » That permittee’s improvements, to remove them, or te require the States, of the i United an teas and shall this clause: Provided if the weston ter soak aims againm the United be may appeal the determina full ectisfaction of all cl if mutual #,-eement is not reached, the Fores: Service shall determine the permittee is dissatisfied with the amount thus determined to be due bim nhl TTA al shall be fiaal and —— with Regulation A-10 (36 CFR 211.2) and the amount as determi parties hereto; Provided farther, Theat upon the right of the United States to ea the the Fave, Savoy te of the amount fixe! 1 of the improvements ebal! a0: rove re=: (Tr 1 of the - ° ised.to nex fo- i ‘ tothe p the Soll bo a pny achviel tet ioitod. Sob Raximum amount which the United States eball be required to pay for the ~ . “tye with Clause 16 sbail in BO event exceed S ings for the acquisitions of such im yy tem final decision on appeal. United Hh 41 19. te Atet 17 X& ts the evem of any conflict between any f the precediog priated clauses or eay provision there~’ and any of the followiaz clauses or any provisions thereof, the preceding priated clauses will coctrol. 18 IE Tris permit ie accexud subject to the cunditions set forth above and to attached hereto aad mace a part of this permit. oy SIGRATUARE OF ISSUING OF FICER 17 i | 19. This uso is classified as Class ITI and the fees due the United States shall be calculated accomiing to the following schedule: percent of net sales and other incoms. A minimm fee of $ pre annum is hereby established fur this permit which shall be a minimes occupancy fee, due in advance, and not subject to refund. The permittee will send to the Forest Supervisor, Sequoia Mational Forest, Porterville, California, on or before (2 months after close of permittoe's fiscai year) of each year a statement of net sales 7 and of other income resulting from tk. operations under this permit, or @ profit and loss statement or other evidence, satisfactory to the Forest Supervisor, of the business transacted by the permittee. The Forest Supervisor my require that any such statement be «worn “4 to, and shall have the further iight to examine the permiti-es's accounting records and supporting data. The Forest Service shall have the right to require the permittees to maintain an acceptable accounting system, and shall have the ; right to require the permittee, at his expense, to have his books 3 audited by an accountant acceptable to the Forest Service and furnish to the Forest Service a copy of the audit report. Upon recoipt of a satisfactory statemont from the permittee, the * Forost Suporvisor will calculate tho foos duo according to the above porcontago and will bill +ho pormittoo for this amount, Jess tho amount of tho minimum fs0 paid in advanco, providod the latter is less than the ~alculated fee. If the minimum fee paid in advance is greater tha: the calculated fee, no reftnd will be made. In consideretion for this use, the permittee shall deposit with the Regional Fiscal Agent, U. S&S. Forest Service, 630 Sansome Street, San Frenciscc, California, a check, dreft, or money order mde payable to the Forest Service, USDA, as follows: 1. Q or before Date of te ine of permittee's fiscel yeer of each year $ which is the established oini=un fee for this use. 2. Within 30 days of receipt of stutemont rrom the Fores: Supervisor, the amount calculated in accordance with the above percentages cf the net sales and other income reported by the permittse and accepted by the Forest Supervisor. anee ePanent cop RIGeRIERTORCER nee —— FACE aOR RTE EE AUIS. NG SAREE LOTS t KERR HRT ES eR a DN a . NS Psfinition of Not Sales. ‘The ters “net sales", for the purpose of cal- e@ulating special-use fees, shall be the gross amounts derived from all @. Wederel excise taxes required te be collected by the permittee frem the customor and paid by him to the Government (for example, taxes on theater tickets, and cther admissions). 4. Federal retailer's excise taxes required to be paid by permittee te the Government (for example, taxes on sale of furs, jewelry, tedlet preparations, luggage, etc.). @. State gasoline tax, regardless of whether or not paid by permittee to eee State taxing authority. z. ich et dees a ee ae ee ef hunting and licenses. Any commissions cr fees received by permittees for selling such licenses are includabls in “net sales". aso. : Te guaregtee the fulfillment of the conditions contained in "this permit, the permittee will furnish the Forest Service in the sum of Twenty Five Thousand Collars ($25,000) or in of Regional Fisnal Agent specified in Clause 19 of this permit, cash in the eum ef Twenty Five Thousand Dollars ($25,000). As soon as security for t= performance of the terms of Clause 22 or the settlement of claizs is no longer necessary, deposits in lieu o” surety bond coaditions set forth in the sentence immediately turned to the permittee without interest. The permittee agrees that all moneys deposited under this permit my, upon failure on his part to fulfill all and singular the requirements herein set forth or made a part hereof, be reteined by the United States to be applied as far satisfaction of his obligations assumed hereunacr, without r te any other rights and remedies of the United States. E 2 i 18 E #21. Insurenc>. The permittee shall indemnify the United States against 7) liability; for decage to life or property arising from the permittee's @eoupansy or use of Mational Forest lands, facilities, or equipment unde- ta"= permit, or by the permittee's curtomers or guests while using the permitted area; provided this shall not be construed to indemnify the Waited States aginst its own negligence. te the public, the permittee sha?l have in force public liability insurance e@evering damage to persons in ti.« wii:icum emount of $100,000 in the event of G@eath or injury to ene individuel and the sinicum amount of $500,000 in the injury to mors than one individual for which the permittee with the occupancy or use-of the land and ths eenstruction, mintenance, and operation of the structures, facilities, or ruit. The permittee shall require the = Se ee ee eS a | ae —— . TA. eos eta Fook o insurance company to send an authenticated copy of his insurance policy to the Porost Service immediately upon its issuance. This policy shall contain @ specific provision or rider to the effect that the policy will not be canceled or its provisions changed or deleted before 30 days written notice to the Forest Supervisor, Sequoia National Forest, Porterville, California, by the insurance company. CONSTRUCTION AND OPERATING REQUIREMENTS (See printed Clauses 2 and 3) 22. (This Clause will consist of a schedule for completion of each major development as determined following review and approval of the successful proponent's developmental and erchitectural plans. Such plans will be attached to and become Het ve teal At lic ite Hi HH gai | niu aide ast ii race ati siicths si | in itd hi bali; ili ea if ae Wal RHE sit We ie i! Hit rail Hy ratte tiaye ol te i te in ip iia + ie Hf fe i ini rH if it il ie Hl at a Wa Ht ie a ill i ie i Te Sai a ea 45 | i > % generete irmetible to limit the extent Mow will eontrel be Sie Pavavt Suave, shee Se Ser ot costae okt tan Poses of ten never paying © chare of the eocces reed conte te Yai) out" privete investors? Siét Hi ptt (ua 3 fate a Freenex bag | iE B ot He deck i age. cee it Hi 47 RECEIVED Ji: 2 tyge Userram STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE eel Lall Ss a ») .§ © June T outlining the acticn taken by tile the recreation Yorest your letter of cn May members of your kas been 949, when ramadan 3 Seal i} Het ih i He al 1, 9-u DEORE BONGO 48 | Lilie Ta ee eet oS hoe = canal GF PORMMT VEE itty pert ES tals Disney Precuctions SPECIAL USE PERMIT Saws = Ae odes eg Career 1 8 POE oy, _tequeta Mle River Perusiecien fe hereby grented to "82% Diswsy Protucticns. © eorporction, £00 Ceuta Buora Vista Strest, Durveat, Cal‘fcraia fie '*.> -9-¢? wa \ \ PY Sa Oreet we =) = ok -e qe 0%? ewewe aay Se Paes eee 5 ees ee 8-0 me rece ae s wamee ms ee | s Gone sos i a owes oe be owe*. vad. Cowe Vu’ oe ~sren ttn Fata dl yoont is a Suaiees to rugurd. Lescver, c2e3 sear 25,000.06 cf tz> ous eojlics 6u a corry-forvcrd Sasis coe evocit for f223 Cuz in fetuses Sess uiccr tho conciticns of the tou poruit if ducucd es enccifics in — 17. EXHIB.T D THe ‘ gales vd is a5 nites 3c 8 pwoviaad L ; Se “ge Blt Sa ote 2+ Seslotn'ed Soo Saan'ts _ Us voice \- nb Os STE. © CL oe ! bg we ees Tati ae ieee ayfe li Ey i Tad 133 ~ te 4. ae Rar aes 4 jechine’ Pos arin wud paVi. ery dy Roc eae, hor pen as A ity SIUW OZ (HL. ——aee ee ll 7 het Eee oe nis sacs ino! | om ) ny io. “es Shei vionoss. . DEPARTMENT of the INTERIOR news release lite bl iH fF [ He a | tte bax) 75 1 i f fH il i i idl iu] lt TTTEHE He itt i OSPARIMENE CF MEH AMD mee om een tee Sewaber 27, lgu whee we . we. te _euea ts eons ete om. - mr. Bh. eww att 323 i vd 77 Cy beweteatinar wolhed the pommaitees un cuitgieet is he meme m1 we Mate he helleetiag Senet i aagiere atom Methenal Forest lead in portions of sovtions 15, 88, 87, 98, and 34, Mount Disable Meridien, Sequeia Mrtions) Perest, chewe ee the 50 atieked te the Tere Permdi of (4a) iseued te the ebeve permittes. a: needed for eee facilities end ‘The peel covers ___ seves andi/er ____ mafles and fs fnsued for the purpese of: Cale ee rareias of any of the privllague granted harchy constitutes acceptance of all the conditions of 5) Re mamentater michess feer UF wee ke errata ina be the Forest Servies, US. Tepartman of Aagerimmaiiener:. ha eae og "Delon enecuntered appear suppressed by conpetition fer light end sell asisture ani wesy likely are ef the came general age class. These trees are _reving co Glewly that it could be onid that they are just barely surviving. Tew is ~ muster, those cuypresced trove vill probaly sxssub within the next 25 te 30 yeore. Sene will die earlier. Za all, ne lew the prepowed weatway centerline, of vhieh 95 emnlé be affected in sone cenner ty the esn- Jetrection ef the read, Be! ater, 1.2. SST Ge a 9 Trencicce, Califernia. & pe, ompe Hevesber, 1943. (2) (Fig. 1. Summary of Sequoia Trees Below Proposed Mineral King Highway, Sequoia National Park, California. Omitted) 87 Eeesible Jaflecnces te Sequoien Ecolory Boone. of Pood Duiléing he coqneda, while act on indelicate tree, has at least two vulecrable pointe viich anct be given serious conuideration for any and ali read con- treet ee Firet, aature coqucias are enccecively large and heavy. Their weet ayetens, by conparisen, ere shallow ond sceningly inadequate for the euppert ef such great veight. This epecics is noted for ite remarkable Walance vhere both the tree and ite eel) envirensent are left undisturbed. Muir (1877) found soqusian groving on-slopes up to 50 por cont and the anther of this report knows ef a 100 por cont slope in the Reduced Mountain Grove of Kings Canyon National Park which supports sequoia trevs at least 5 or 6 feet in diancter. Thie balance, hevever remarkable, ic eneily upset vhere evils are ect in motion through erecion or selifluction, vere coils are rendered overly wet ty the accumiation of water in exccss of the natural svernge over the yours, end by damage te the trunk of the tree, euch as by fire. Wile the latter situation is mot apt te be inflicted by road building, it aust be pointed out that a high percentage of large coqueies have borne such cers fer mony years now and are thus already weckenet. Studies by Hartesvelit (2965) shoved that agprexiantely 95 percent of a1 sequoies which hed toppled to their death on sloping terraine fell in the direction of a large fire oonr, this indicating the weakness of scarred trees. Toppling over is the amber one sense ef sequeia death. Of theee that topple, nearly all of then vere located either on eteop alepes or along a water evaree where the coil eupzort was weakened ty the presence of vater. More thaa 80 percent of a2] coqueia trove encountered in this study are groving oa : slopes of moderate te great stecpnces, in close proximity te water courses, & wth. The anture ef the eubstrate alse plays a rele in a soqueia's stability. Thin apocics has reete which usually de not penctrate the ecil deeper than four feut. Most ef the reets are within the upper twe and one-half fist of the wedi. Ia recky areas, sci] acoumlation: aay well be tve fect deep oF eee Vot coqueiae ourvive there te an eld age literally perched on top of & ee0li4d reek base. Ae aight be cuspicioned, they alse topple there quite weadily because of the insecure anchoring of their mnesive weight. I believe thie te be the aest delicate of all situations for large sequoia trees. Por theee larger epecinens groving in deeper oils, stability say be weekened by increased. ceil meieture co tant the tree topples over in a visd (3) tera er is overtnlanced by enow piling heavily on ite erewn during ulater or early apring. Thie wan the reacen aenigned te the fall of the Iowa Ese in the winter ef 195% in the Naripesn Grove (Rertesvelét, 1963). The vater eocumlations here wns due te a fomlty valve at the preceure break in the leon. water ayetem. Le te Atel sand Redeemed Green Ges ee herpedting pee the nature of the drainage aysten, serious attention should be given te the poosible imerenee in water sequmiation becmmes of rumef! free the io perviess surfaces ef the read which concentrate in these natural dreinageuays. Bren tonperary sei) enturation could reen}t in the falling of a soquena. Made aapoct will be amplified later in the section of the repert dealing with We neti vide rei engwonye med comnere Que other consideration that wil) probably ealy be a uiner probles ia these groves cencerve « nere-cr-lees permanent increase in soil meisture. If the water table is 1 vised, sequeia roets uithis the sense ef enturation lack Ser exygen, become nt a-functionsl and ic. Several trees se affected in the Muripess Greve ~ sation (previous paragraph) showed sicm- =/ tccreased q@rowa viger viich une clearly reflected ia the reduced enmmal inercacnt te the werk, fue of the trees died as a result of this leng-term increased evil water. TInnemech as the anticipated inerense in Grairage water «ill be fren case enlt viich cones largely before the growing sescen, there will likely be Wrwle or ae prodles of this kind. Tf the rentny ic constructed conentially as plotted on the tupugraphis mp prepared ty the Division ef Rigmaye, yet sere then tee eoeuaiaen wil) be affested @ireetly ay news) reed comstrection 4 eoqneda of 1) fect diencter de em the op-slepe cide of Drainagmy F. ‘It bee already been reet—sumed te Qeeemsdate the existing reathay and the editions] amount ef pruming for the new read vill be slight at mest. It unc show ta studios by Bartesvelét (1963 ent 1965) that, wiile revt-gresing eameed 1 reduction in enmual diencter _ (Few, 18 bas not, as of these dates, emused « tree te topple nor hes cree Viger appeared lessened. Waile this socas te redues concern fa reet-pruming, At should be taken for gremted that, beewsce of the rele rests play ia eaia- Wniniag @ soqueis's blames, « reet—prusad tos wemlé be mrs smenaptin s te weppling then if it bed as ectire ret apeten. Bee wallaet ow the recte redeces sei) eeteters swaperttive ast thes fur bas reeulted only in an inerence/, rate of grevth fer soqeedas se affected. th 89 Guly ene coqueia of 4 fect diameter near Dreinageway F is in a peciticn te veecive eeeh a fil). It appears that the £121) would be lees than three fect deep and it appears that it would not be of damaging consequence te the tree, Sequins are a tree ef ta. carly stages ef ecslegicnl euccession. That fe to ony, they coed in eost readily where disturbances te the soil cccur. Zt is, then,te be expected that this apecies will probably seed in te the fvechly exposed evil anterials of read fills end poesibly of read cuts. p! © «05 of aoil over --2'4 rock wadeh gives evidence of the instability of '-- ©: .« incu @ eituation. Of the total of )5 coquoias in this éraina:svay below the proposed reel qvessing, 15 te dengered if additional new highvay are diverted ful} fence inte the asin cheaneluay. He one of these sequoias is large, 27 ische bedag the largest. The emallest is enly two inches diaseter breast height, One large 18-foct epecinen has its rect aystes exposed to the creck bit appears te be high enough above the crock bed to withstand additional éraimp water. 2 Seme of the soqucias are anal) and suppressed because of ineufficient Might. Additional ooil scisture vould very likely weaken then in conpetitics with the other trees. Additional oil scisture ef moderate to high proportions Thies érainagowsy includes California autmeg (Torreys salifornics Terr.) which is 0 species uct counen in saqucia groves. (Fig. 3. Drainageway A, Atwell Grove, Sequoia National Park, California. Omitted) (Fig. 4. Stream Profile of Drainageway A, Atwell Grove, Sequoia National Park, below triangulation Marker H-21. Omitted) (Fig. 5. Cross Sectional Profile of Drainageway A from sont center intersection with channel. Omitted) Be. pe ve ry Graiatemmr} - Belew triangulation aarker B-34, See figeres 6, 7 and 8. Average strean gradient for this section - 26 percent. There will very likely be few protlens encsuntered fren additional went! acownlating in thie érainageway. Of the 15 sequeias below the pro- poood rend, 9 are along the creck and reate might poasibly be affected by astiticnal water, Tuo large soqueine are groving right aguinct the dreiangs | stemmed, each Leaning tomrd the erect and could) pose a proklon of toppling | im the event the esi) €14 becene wetter. A “ 98 ~ (Fig. 6. ieibianeay B, Atwell Grove, ee National Park, California. Omitted) ~ ~ i. My 99 (Fig. 7. Stream Profile of Drainageway B, Atwell Grove, Sequoia National Park, below triangulation Marker H-34, Omitted) (Fig. 8. Cross Sectional Profile of Drainageway B from road center intersection with channel. Omitted) 101 ¥ prataecovey ¢ = Below triangulation earher 1-9. See figures 20, 13 aad 12, average stream gredient fer this section - 18 percent. Tais érainagewny is very recky vith thin eocumlations ef sci) materia) tmreugheut such ef the portion surveyed. The stream channel] is nearly al) eulid reck eo that the volume of water treneperted is not apt te diminish mach with distanee fren the reed ereesing. Tans, eresive potential and the endl coftening potential are high througheyt this Grainagewsy. In addition te this, sere water ia carried in this drainage aysten then in acct. Eich eunsideration should be given the handling ef additional readway drainage te be emptied inte this canyon. Of the 24 eaqueia trees in this drainagowy, § are near anengh te the - otreaem chanme) to be affected either ty undereutting or by increased ceil existure. Some of the coqueine are anal) and suppressed and vill very likely omewems te increased coil saisture. VO cheuld be noted that cone of the soqueias in this érainageway are eotunlly auch elecer te the stream edge then shown on the estate topographic map end are thuc sere ensceptible te any increased water than is at first evident on the np. Their positions have been adjusted roughly on the feller ing ang (Pig. 10). 102 (Fig. 10. Drainageway C, Atwell Grove, Sequoia Nationa! Park, California. Omitted) 103 (Fig. 11. Stream Profile of Drainageway C, Atwell Grove, Sequoia National Park, below iecencncmen Marker I-9. Omitted) (Fig. 12. Cross Sectional Profile of Drainageway C from road center intersection with channel. Omitted) Brsizegewey BD - Below triengsiation markers I-16 end 1-17. See figures 33, 14 end 15. Average otreem greticat for this ecction - 27 percent. Mido deianguay hes © relatively euall watershed co that the veluse of water 1% curries is enall. Beapite a fairly stoop stream —efient ent conyes aides (42 percent), oni) anterials have cooumulates deeply. Vater rencff hae been slight and the wtunl drainage channel iteclf is inceneplonsns. Only tue coqeedas are down-cleye fron the proposed read eressing. Que is chout © fect in dioncter and the other about 15 inches. There are anny sapressively Jawge incense coders in this aren. ; Beth coqueias are near enough the drainage channel to be inflaenesé ty \nus iianddleletsaaeais, Galess a lerge quantity of water accrued here, they probably would not be coricucly affected. (Fig. 13. Drainageway D, Atwell Grove, Sequoia National Park, California. Omitted) (Fig. 14. Stream Profile of Drainageway D, Atwell Grove, Sequoia National Park, below triangulation Markers I-16 and I-17. Omitted) 108 ie (Fig. 15. Cross Sectional Profile of Drainageway D from road center intersection with channel. Omitted) * PRA EEE TION ACSA ETERS LOSES ERE IEE ae ~ . pienso ” -¥ pretuacevay § - Belew trisngulation sarker I-2i. See figs. 16, 17 ent 18, average etreem gredient fer this section - 25 percent. Brasaagewsz EB has a geod flew ef wate: and is recky like Drainagewy ¢, Bresien, ocil eluaping and sedimentation are abundantly evident here. Pou large fallen soqueias secentuate the feeling of instability ia this area, ii Renst 8 sequeias are groving right ageinst the creek bank near the junctin ef Breinagewsy F. One li-feet specinen above the reed creesiug (showm a anp fer Dreinagevay F) vill possibly require soms_rect pruning and a 4-fox eoqeeda will require come additicn ef ~ ed ballast ever ite reet aystes. greatest concern for sequeias in this drainagewny, however, is fer sequein greuizg qleng the creck. The ‘-feot specinen vbese rest aysten will be Wuried with read ballest has a healthy, vigorous crows and very likely wili peapend favorabiy to the read ecastructicn. Sedimentation is heavy in this éraizagewny. An iamense gully senticos earlier (Fig. 2) has been out below a high culvert water Groep and anay tem ef evil aaterial. ere deposited aleng the creck channe] below. Like Drainagnay C, water quantity and erosive potential are net apt © @iminish amok with distance down strees from the proper a ready. 110 | (Fig. 16. Orainageway E, Atwell Grove, Sequoia National Park, California. Omitted) | 111 . (Fig. 17. Stream Profile of Drainageway E, Atwell Grove, ; Sequoia National Park, below triangulation point I-21. Omitted) 112 (Fig. 18. Cross Sectional Profile of Drainageway E from road center intersection with channel. Omitted) 113 Reniaecevey 7 - Below triangulation aarker 1-25. See figures 19, 2 ant 2, Averege otreem grejicst fer this section - $e ft. $27.16 65 ft. 29.40 Pe ft. 29.90 7S ft. yo. % ft. 32.10 120 ft. 34.00 200 fe. 40.60 ta the norma! = ghwey Job, It Is wsuc! to anticipate thet earthwork solutions will be ch.eper than structural solutions. tn the case of mountain locations as In this eres of the Sterras, this 18 aot elweys true. Extensive cutting and filling In mountainous sreas Is accompanied by extreme beckslopes and embankment slopes te accomplish s stable earthwork condition. in the present case, embankments as much 0s 600 feet ond 700 feet - FRE CLARKRROX KNOINKRRING COMPANY i mneemmenntendl 151 wide et the betten ef the prism ere required te held up mere 28 feet for biginesy width. ' tn Such cases, the use of structures ts semetiaes warranted, « Besott Gur calculations Indicate thet In the case of this read (eur study section of 18,400 feet Is considered to be on average condition for the entire highey), the structure! solution can be cheaper fa initial construction cost and in ennus! aalatcnence cost. Sallforata Proposed Design Length: 18,400 feet Length of Bridges: 1,000 feet Excavation Quantity 2,307,000 cu. yds. Cost of Roadwork: $ 6,300,000 Additional Cost of Mejor Drainage: 3,500,000 Cost of | Bridge: : 1,540,000 Cost of Cribbing: $ 4,000,000 Tote!) Estimated Cost 15,340,000 Slerkeson's Proposed Design Length: $7,750 feet Length of 10 Bridges: $,400 feet Excavation Quantity: ~- §§0,,000 cu. yds. Cost of Roedwork $ 2,400,000 Cost of Bridges: ts 7,000,000 $15,340,000 152 . Additional Cost of Major Orainage: g $20 ,000 Cost of Cribbing: Lge oe Total Estimated Cost $ 11,800,000 $ 11,800,000 Although | belleve thet the structural costs of the bridges are high (a study of California's bridge costs for several years beck end a study of large bighvay bridges in more remote sreas of western Canada would Indicate thet these galt prices are high), there would stil! be o decided saving in the cost of the bighwey If the structural design mathod were used. This sevings of slaost $4,000,000 in this test section would Indicate @ saving of several tines this amcwt for this entire road. Melatenance Costs There are no authentic comparative costs for maintenence tn any state. Walatenance accounting practices sre a principal reason for this since resur- fecing 1s maintenance In one area and Is recon.cruction In another. The differ- ence Is In degree of antatenence and In the efficiency of maintenance crews which couse wide variations in “waintenance costs." Galess the bridges need repainting, and this can be evolded by the use of concrete or “rusting” steel, bridge maintenance costs are usually considerably lower than roadway maintenance costs on sol! foundations in cuts and fills. Seow ond ice vamvel Ts generally equal per alle of roed or bridge; maln- tenance of traffic services, signs, markings, etc., ere the save. The msintenance of slopes, ditches, shoulders, surfaces on roadway sections, ere high whereas bridge decks, bridge ralls and bridge drainage items require little, If any, ‘EME CLARKERON KXCINERRING COMPANY Ge figures are used here but It is believed quite firaly thet annual @atatensace costs will be reduced by eptinizing on bridge sections rather than eartinork sections. : Gur sbservetions of existing cuts tn this ares, particularly tna the Gistategrated granite sections, Indicate continued falling of asterial fron euts late drainage ditches and roadway which could increase the cost of roadway end ditch cleaning slong this stretch of highvey. The observed landslide con- ét-.ten tikewise will be Increased In earthwork areas. If the landscaping pro- posed Is wsed on these slopes, asintenance of such planting will be high-cost ten... While our study line end grade Indicates 5,400 line.) feet of structures, this ts enly the first cut of a study. A more careful study with better survey Gets, geologic and solls date will, | belleve, indicate Increased economy through the wse of @ greater amount of such structures rather then @ lesser snount. Perticuler attention should be given to further reducing cribbing end major @ratnege costs by the use of such structures. Oralnage Considerations §$@-yeer flood criteria wes used In determining the runoff for the major @rainege structures. Because of the need for preserving existing plan. ecology and te eveld excessive scour et outfalls due to over-concentration of drainage cheane!s, relatively wide culvert sections were assumed. Ferthermore, due to the sensitivity of auch of the plant life to excessive - @roundweter, minimal, tf any, bactweter conditions were permitted and because of the natural condition of tree fall and ether wilderness debris conditions, It wes 154 ‘gseuned that debris collection st the intake of major drainage structures would ast be permitted er desired. These restrictions would be norms! for the park end other wilderness arees end ts in Vine with the recommendations of R.J. Nertesveidt in his report on fawell Grove and Redwood Creek Grove, dated December 19, 1966. This would also be in keeping with the Califorats Nighy Deperment Resign Renual. While energy dissipators may be required, It Is better to reduce the amount and velocity of the runoff concentration then to depend too heavily en such dissipators. Lendecep ing The California State Nighrey Department expressed a willingness to waterlal ly reconstruct on scar areas natural plantings. This effort on thelr pert should be encoursged. However, the art of highway landscaping does not We primarily in expensive plantings to hide or otherwise "wallpaper" scars. it Bles In the selection of location and design criteria which reduces scars end reduces the need for such plantings by leaving auch of the original native grewth intact. “2% tt ts for this reason thet the use of structures end cribbing Is recom mended. Scars will be reduced by at least two-thirds by such techniques. This Is perticularly essential in these Sierra slopes. The surface cover necessary te support plent life Is sparse, natura) rainfall during many sonths Is also sperse and retaining the natural vegetation which has conditioned Itself to its eavironmcntal ecology ts very Important. it ts particularly Important here since ene of the legislated reasons for this Mational Park Is “to exemplify ond eatatetn for posterity .... all other Sterran vegetation types present in the TRE CLARKESON KXGINKERING COMPANT meron tr 155 ports..." Seme scars will be inavitable due te reed construction but rather thea enstude the public, it Is possible with seme care, te reduce the scars, pre- serve the netive grewth te 2 high degreu, end still perait the latended trans- pertation use by the public. fer the mest pert, the structures will be igh ebeve vegetation and should be designed te let in the necessary light end rainfall fer its preser-— wation. Melghts of fifty feet and over, wil! permit this; however, halghts of US to 30 feet will generally discourage plant life benseth the structures. Vas construction specifications shld be seo dram te reduce te a @laiaus the temporary scars due te construction operations. These restriction: ere net ebnoraa! and should be specified and enforced because of the slow rate et which aeture will cover such temporary scar conditions. This Is enother case where consideration of tha amenities and ecology @f the eres can be done (first Instance and ultimate), at e lower cost then solutions not recognizing these public functions and requirements. . 0 de mot suggest a major change In the bosic typical sections which ere hem ta Plate Vi. These consist ofe 28-foot wide surface on fills, with two te three-feot shoulders for quard rail etc., ond for cut sections, 28 feet of povenent plus two twelve-feot shoulders. The bridges proposed ore 38 feet out Vo out ond appreniastely 32 feet rosdway width. | 8 de ebject te the so-called safety lanes which ere added to pernlt pessing ct various latervals. FUE CLARNESON EXNGINEXRING COMPANY erento ose 156 At eperating speeds of 40 and $0 ailes per hour, nelther the State's nor our alignment permits pessing safely without these so-called safety tenes, for the 3 1/2 alle test section. At 30 a.p.h., elther alignment permits passing aight distences; 15% of the length on the Clarkeson Vine, ond 5k of the length en the California line. ty hesttance In concurring In the safety tenes Is due te thelr location es.shown on the site plan end from past experience, ay fear that at the end of eect safety section, the nusbers of vehicles which, when the restriction ia width eccers, will be caught overriding the safety lane. fy observations on Route 196 from Viselle te Three Rivers on ay visit to the area, confirms ay pest experience with this type of design. The safety lene design as proposed by California, Is, in ay opinion, very unsafe and should not be used. lasteed of the so-called safety lanes, It Is suggested that periodic and frequent widened shoulders be provided for cart and other vehicles to pul! over fer scenic purposes and for the purpose of letting eny vehicle queves pass Tals should be done on both sides of the road since vehicles travel ing downgrede say not only wish to enjoy the scenery without crossing the rosd, but mey have to stop to remove tire chains In the winter aonths. Many such locations should be avalleble and were anticipated tn the location studies. They should wet be across from one another but staggered. Regarding the entire design, ovr taformation ts that the single direc- thenel peak hour flow is anticipated at 85% vehicles per hour. Tals ts 2 very high one-directional losd for a two-lane highway and can be handled only with reasonable traffic control. Further, tf two-thirds of the 14,000 dally visitors to the Rineral King area go ia end cut withia ene day, this will place a lead Of 9,800 visitors making the round trip tn 2,500 vehicles. Te heep the hourly peek te 850 per hour, only one-third of these can leave in any ene hour. ty en. enpertence tn visiting ski resorts In the east (New York and New Hampshire stepes) mokes ae wonder how auch effective contro! this will require to stagger this teed over severa! hours. Gur vehicle simulation studies indicate that this stretch ef read, if designed with the Indicated standards of alignment and grede, will effectively eperate at 30 to 86 a.p.h. At 40 to $0 m.p.h., there will be insufficient pessiag opportunity for the fester and more Impatient drivers. A restriction te 30 or 35 a.p.h. because of the beauty of the ares, should act he cnerous et teest in daytion fer this short length of trip. There could be of course, considerable said about having the asjor perking lots et the Three Rivers end of the road just off Route 196. Trans- portation lato the eres will be cheaper and, depending upon the size of buses, the traffic leed could be reduced to less than 100 vehicles per hour to relieve eny eperating congestion. Whether ur aot the capital cost tw provide such porking end bussing eperations would be less than the cost of garaging in Aineral King, should be studied. The leck of snow at the lower end of the rood, ond the substitution for passenger and gear handiing st Route 198 in plece of at Hineral King, aay perait substantial savings, not only to the Aiabre! King visitor, but siso to the construction et Mineral King. Galess seme contro! or other means Is considered, this two-lane road dees act look st al! adequate for a 14,000-a-day visitor load where so many wit be one-day visitors. (Exhibit Y duplicates Exhibit K and is omitted.) 159 CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-5134 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, | Plaintiff, vs. WALTER J. HICKEL, individually an“ as Secretary of the Interior of the United Sta.zs; JOHN S. McLAUGHLIN, individually and as Superintend- ent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- culture of the United States; J. W. DEINEMA, individually, and as Regional Forester, Forest Service, and M. R. JAMES, individually, and as Forest Supervisor of the Sequoia National Forest, Defendants. | CIVIL NO. 51464 DEFENDANT’S AFFIDAVIT OF RICHARD E. DEFFEBACH DISTRICT ENGINEER, DISTRICT 6 _ DIVISION OF HIGHWAYS DEPARTMENT OF PUBLIC WORKS STATE OF CALIFORNIA FILED BY DEFENDANTS IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-5134 Attorneys for Defendants UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, CIVIL NO. intiff, 51464 vs. AFFIDAVIT OF WALTER J. HICKEL, individually and as Secretary RICHARD E. of the Interior of the United States, et al., DEFFEBACH Defendants. State of California ss County of Sacramento I, RICHARD E. DEFFEBACH, the undersigned, being culy sworn, depose and say: ; 1. That I am now, and have been since July 1, 1966, the District Engineer for District 6 of the Division of Highways, Department of Public Works, State of Califorina, and that said District 6 is the district within which proposed State Highway Route 276 between Three Rivers and Mineral King, California, would be constructed. 2. That as said District Engineerlam responsible for the planning, design, right-of-way acquisition, construction, operation, and maintenance of all state highways within said 161 District, and that as part of said responsibility I have been since July 1, 1966, in charge of all aspects of the planning and design of said Route 276. 3. That in connection with the construction of the Mineral King recreation project on National Forest land, it js necessary to construct an all-year access highway over lands between State Highway Route 198 from near Three Rivers over to Mineral King, California. That in 1965 the California Legislature added State Highway Route 276 to the — Highway System in order to provide such access. 4. That the California Highway Commission has author- ‘ized the construction of such highway, and has approved a program providing funds for right-of-way acquisition and construction. That said Commissicn has included in its 1969-70 ( fiscal year budget the sum of 1.8 million dollars for construction of the first unit of this highway project. 5. That the currem estimated total cost of said highway project is 25 million dollars, 22 million dollars of which will come from state highway funds and the remaining 3 million dollars of which would come from the Economic Development Administration, an agency of the United States Department of Commerce. 6. That on August 10, 1967, a public hearing was held at 2 Three Rivers, California, by said Division of Highways on the subject of the proposed |}. cation of said highway. That on October 24, 1967, the Calif’: ‘a Highway Commission formally adopted the location of said highway. 7. That said highway, accordirz to said adopted location, would be approximately 20.4 miles long, of which 6.5 miles would traverse Bureau of Land Management lands, 9.2 miles would traverse Sequoia National Park lands, 1.8 miles would traverse Sequoia National Forest lands, and the remaining 2.9 miles would traverse various parcels of private property. 8. That after October 24, 1967, said Division of ————————— hhh Highways commenced the design of said highway. That prelimi- nary plans have been completed for those portions of said high- way traversing Bureau of Land Management lands and Sequoia National Forest lands. That preliminary plans for those portions of said highway traversing Sequoia National Park land have not been completed because the National Park Service has not allowed access to said Division of Highways for the cafrying out of the seismic investigations necessary to the completion of said preliminary plans. That until a special use permit is issued by the National Park Service for the construction of said highway over Sequoia National Park lands, said Division of Highways will be unable to conduct said seismic investigations and complete said preliminary plans. That as of this date said special use permit has not been issued. bs 9. That neither said seismic investigations nor any other _ investigations or actions of said Division of Highways prior to the actual construction. of said highway will result in any damage to land or timber growing thereon. 10. That to date said Division of Highways has expended in excess of $600,000 in the planning and design of said highway. 11. That from the date of issuance of said special use permit by the National Park Service, it would take said Division of Highways a minimum of five months to develop preliminary plans for the portion of said highway over Sequoia National Park lands and transmit them to the National Park Service for consideration. That until thereafter there is substantial agreement between said Division of Highways, the National Park Service, the Bureau of Land Management, and the Forest Service on the design of the entire length of said highway, said Division of Highways will not call for construction bids on any portion of said highway. 12. That because of the time necessary to complete design and acquire the necessary rights-of-way and that because the calling for construction bids will not commence until the snow 163 has melted over the construction area to the point wher prospective bidders can examine the construction area, the earliest date for the calling for construction bids on any portion of said highway is approximately May 1, 1970. 13. That the submission of construction bids, award of contract, execution of the necessary contract documents, and mobilization of the contractor’s equipment and personnel will require at least two months after said call for bids, so that the earliest date upon which construction of any portion of said . highway could commence is approximately July 1, 1970. 14. That the dates set forth in paragraphs 12 and 13 rest upon the assumption that said special use permit from the National Park Service will be issued not later than September 15, 1969. That if the issuance of said special use permit is delayed by order of the court in this action beyond September - 15, 1969, the commencement of construction of the first unit of said highway will be delayed a minimum of six months. That any delay in the commencement of said construction will subject said Division of Highways to increases in construction costs at a rate of from three to five percent per annum, and expose said Division of Highways to the risk of losing the said contribution of three millicn dollars from the Economic Development Administration. RICHARD E. DEFFEBACH RICHARD E. DEFFEBACH Subscribed znd sworn to before me this 24th day of June, 1969. ANNA YOUNG NOTARY PUBLIC COUNTY OF SACRAMENTO My commission expires Mar. 4, 1973 CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Atiorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Teiephone: (415) 556-5134 Atto-neys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, Plaintiff, vs. WALTER J. HICKEL, individually and as Secretary of the Interior of the United States; JOHN S. McLAUGHLIN, individually and as Superintend- ent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- culture of the United States; J. W. DEINEMA. individually, and as Regional Forester, Forest Service, and M. R. JAMES, individually, and as Forest Supervisor of the Sequoia National Forest, Defendants. DEFENDANT’S AFFIDAVIT OF W. S. DAVIS ASSISTANT REGIONAL FORESTER CHIEF OF DIVisZON OF RECREATION CALIFORNIA REGION FOREST SERVICE UNITED STATES DEPARTMENT OF AGRICULTURE FILED BY DEFENDANTS IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 165 CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Averue San Francisco, California 94102 Telephone: (415) 556-5134 Attorneys for Defendants E ~ IN THE UNITED STATES DISTRICT COURT | IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, # Plaintiff, CIVIL NO. 51464 WALTER J. HICKEL, individually and as Secretary ~y FIDAVIT OF of the Interior of the United States, et al. . S. DAVIS Defendants. State of California City and County of San Francisco I, W. S. DAVIS, being first duly sworn, depose and say: 1. I now am, and have been since 1958, an Assistant Regional Forester for the California Region of the Forest Serv- ice, United States Department of Agriculture, and Chief of the Division of Recreation for said California Region. In that capacity I have been since said date and now am the principal adviser of the Regional Forester for said California Region on all zecreation matters in said region, including the Mineral King project, which is the subject of this action. racecar ae nrN eT ace eT IRRSP RI: et EVAN BOE 166 ee 2. I have been intimately involved in ull phases of the planning and implementation of the Mineral King project con- tinuously since 1960, and am fully informed as to its current status and as to the ffuture plans of the Forest Service with respect thereto. 3. In February 1965, the Forest Service published a prospectus inviting interested parties to submit proposals for the development of an: all-year recreational project in Mineral King Valley, on the Sequoia National Forest, in accordance with certain minimum requirements set forth in said prospectus. 4. Walt Disney_ Pr uctions (hereinafter referred to as “Disney”) and five other bidders submitted proposals in response to said prospectus. After careful study, the Secretary of Agriculture declared the Disney proposal to be the best. Thereafter, on January. 10, 1966, a planning special use permit was issued to Disney by the Forest Service for a term of three years in order that Disney might carry out the necessary surveys, investigations, and studies in order to prepare a master plan for development of the projec. which would meet with Forest Service approval. A true copy thereof is attached hereto as Exhibit A. 5. Disney thereafter carried out such surveys, investiga- tions, and studies, and prepared a master plan, which was duly _approved by the Forest Service on January 21, 1969. 6. Said three-year planning permit to Disney provides for the subsequent issuance of a 30-year term permit to Disney upon the mceting of certain requirements, as set forth in Clause 17 of said planning permit, reading as follows: & “17. A 30-year term special use permit covering not to exceed 80 acres, and a supplemental terminable area special use permit, will be issued tu the permittee upon the completion of the following requirements.: (a) Approval by the Regional Forester of plans which meet or exceed the minimum requirements of the 18. 4 permit was amended to read as follows: 8. \ 167 \ Mineral King prospectus of a oa 1965, which is on file in the Supervisor’s Office. (b) Award of the first contract within three years of , the date of issuance of this permit for improving, to public winter access standard, the authorized State route from the vicinity of Hammond, California, to Mineral King, this contract to cover a significant portion of said road. (c) Programming of funds for completion of said road to public winter access standards within five years of the award of the first road contract. N : | of The term permit will not be issued unless the above requirements are met. This permit will automatically terminate Xia the issuance of the permits described in Clause 17, and will in any event terminate three years from the date of issuance.” ae Te aS 169 be detrimental to national forest lands and resources. That if the Forest Service is restrained by preliminary injunction from continuing these surveys and studies, the date of completion of the Mineral King project will be delayed for a period approxi- mately equal to the period during which the Forest Service is restrained from carrying on these surveys and investigations. 13. That in the first year of operation of the Mineral King project, which is now scheduled to open in December 1973, the United States expects to receive from Disney as an annua permit fee a sum estimated to be in excess of $75,000. In the second and succeeding years of operations, the United States expects to receive from Disney as an annual permit fee a sum estimated to be in excess of $100,000. If the completion of the project is delayed by issuance of a preliminary injunction, the United States will be correspondingly delayed in the receipt of said annual fées and will suffer a substantial financial loss to that extent. 14. That the proposed recreational development at Mineral King is not unique in combining a 30-year term permit for an aggregate acreage not to exceed the statutory limitation of eighty acres with terminable permits (for which there is no statutory acreage limitation). There are now in the United States a total of at least 84 recreational developments on national forest lands in which there is such a combination of a 30-year term permit and terminable permits, and at least 15 of these are in the California Region of the Forest Service. W. S. DAVIS W. S. DAVIS Subscribed and sworn to before me this 25th day of June, 1969. C. COWNE Deputy Clerk United States District Court Northern District of California Ten Pevm Leporema . of Agrauivure om Carviee MAME OF PERMITTEE 7 - Lilnorcl Ging Prospoctus of Tobruar, 15965. The exercise of any of the privileves sranted hereby constitutes acceptance of all the conditions of ws permit. S , db eight hundred thirty-three and 37/100 “ 1. In consideration for this use, the pay to the Peres Guviee, US artment of - Ageietiiare, the sum cf Twenty-three thousan Dollars Gees) fer for the period February 1, Tt a a ».19_25_, and theresfter jomce oaih Janeary i , ancuty Sls Scout LSet Sox {ove Dollars (S Sxabedet2 ): Ray ane epesgeeG™ vas « ” 0% a bee “* > coed as s+: we Pang arens- see Bemsom o Yare « Pane toe Ve ape Ya 0 ne mee eeee iotctokighoatatted ion vi denies Geet “ 2 ee woe pele ow 4 Pee “ He Saree kee: Apare -- fe = eee npg tN ores eee Ll a ee Sofi oy /2 . rm @eo coven 172 27. A 30-year term special use porait covering not to excced 60 acres, and @ supplecontal terminable arcs spocicl uso pormit, rill bo Ascucd to tho poruittze upon the cormplotion of tho folloving ro- quirements: (a) Approval by the Recion=l Forester of plans which moot or exeood tho tinices requircacnts of the Uineral Mince Prozpactes e2 Fevrucry 1965, vaich i3 on file tn tac, : Suporvisor's Office. PAA VTY wars (b) Averd of the firct contract within threo years of tho cate ef isevance of this pormit for inprovins, to pudlic inter acosss ‘ctendard, tho eutherised Stato route fron the vicinity of Enmmond, California, to Uincral King, this contrict to cover a sigiificint portion of said read. (c) Programing of funds for cemplotion ef s2id road to ps>1ic wintor accsss ctandaris vitnin five yoars of tue avard of the firct read contract. The tora pernit will not be issued unless all ‘threo of theo abovs requircucnts ero mot. 18. This pormit rill eutentically terairte vith the iecucnee of tho permits described in Claus0 17, and vill in enz event teraimt= throe years froa the dato of iscrence. , 19, This pornit shall have no forces or effoct until it has boon sigacd by tho poruittco cxd the Forest Sorvico. MSY PRODUCTICNS, ea CINFORATI: | ‘ oe A 4 By Tr, oe (Ate = N [corporate scat7 sees SPE RM om —st “ Presiccat —s\ écoveterz 173 5 z, Stan. Men. ceteee eat Sen tes Encnetary or tuo Corpcraticn thst oxocuted tho above psreit; tit Rey D. Kiann. rho tired caid perait oa behalf of caid cerporaticn, tas tata et of said corporation; that I Imes bis eicmature, adi that his sicucturo cn said porslt is conuine; end that eaid perait vas éuly sicnca, conled, and attested to for and on behalf ef ssid coszounticn by authority of its coviznins body. (consents sz Kathe > MN" ay) 174 CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Franciscc, California 94102 Telephone: (415) 556-5134 Atiorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERNDISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, Plaintiff, vs. WALTER J. HICKEL, individually and as Secretary of the Interior of the United Stutes; JOHN S. McLAUGHLIN, individually and as Superintend- CIVIL NO. ent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- 51464 culture of the United States; J. W. DEINEMA, individually, and as Regional Forester, Forest Service, and M. R. JAMES, individually, and as Forest Supervisor of the Sequoia National Forest, Defendants. | DEFENDANT’S AFFIDAVIT OF DONN B. TATUM PRESIDENT WALT DISNEY PRODUCTIONS FILED BY DEFENDANTS IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION 175 CECIL F. POOLE United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-5134 Attorneys for Defendants UNIT)ED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, CIVIL NO. Plaintiff, VS. 51464 WALTER J. HICKEL, individually and as Secretary \ AFFIDAVIT OF of the Interior of the United States, et al., DONN B. Defendants. TATUM State of California ss County of Los Angeles I, DONN B. TATUM, being duly sworn, depose and say: 1. Iam Président of Walt Disney Productions, a California corporation (hereinafter called “Disney”’). Since February, 1965, when the United States Forest Service issued a prospectus inviting bids for the development of an all-year recreational area at Mineral King in the Sequoia National Forest, I have served Disney in the capacities of Vice President and Administrative Assistant to the President, Executive Vice President- Administration and President. Throughout this time I have ORAL AEE AeA RIP ALT OE RE SS OEE ERE TITER TN TR Re SUN 176 Bs. worked closely with the members of our staff in the develop- ment of our initial proposal and subsequent master plan and in the administration of this project. In performirs these duties, I have gained a thorough knowledge of the Mineral King‘project. 2. In March, 1965, Disney received from the United States Forest Service a publicly announced prospectus, inviting interested persons to bid for the development of an all-year recreational facility at Mineral King in the High Sierra. Disney responded to this prospectus by initiating research and planning efforts leading to the submission of a proposal to the Forest Service on August 31, 1965. Five other organizations submitted proposals. 3. In preparing its preliminary proposal for presentation on August 31, 1965, Disney initiated extensive studics of the development site, surveyed existing research data on the area, and contracted for extensive additional studies from outside consultants. 4. On January 10, 1966, Secretary of Agriculture Orvilie Freeman announced that Disney was the successful applicant, and the United States Forest Service granted a three-year preliminary planning permit, which has since been extended. The permit specified th: planning period as a time to: 1) obtain commitments for construction of an all-year access road to Mineral King; 2) make on-site studies; and 3) further refine and obtain approval of the developmenta! master plan. 5. During the term of the three-year preliminary planning permit, Disney initiated additional detailed studies and surveys leading to the preparation of its master plan for the develop- ment. A Disney snow survey team has lived at Mineral King during each winter season since 1966 observing snow condi- tions, recording temperatures, wind conditions, stream flow, snow depths, snowfall and snow drifting patterns, and mapping avalanche activity. 6. Disney has also obtained from highly respected 177 independent consultants and planners: reports on ski area and resort planning; low and high altitude vertical photography and topographic mapping of Mineral King; detailed data on various rock and soil types, and geological conditions in the Village ard proposed parking area; studies on sanitation, waste disposal, water systems, meteorology and avalanche control; studies on transportation systems to bar automobile traffic from the Mineral King Valley; and othe: substantial research and plan- ning reports. 7. All of the information obtained through such continv- -ing studies was then analyzed by the architectural and engineer- ing staff of Disney’s subsidiary, WED Enterprises, Inc., in Glendale, California. WED Enteiprises expended substantial sums of money in the further development of the master plan for this project. 8. The master plan was submitted to the United States Forest Service for final approval on January 8, 1969. Notifica- tion of formal approval of this niaster plan was received by Walt Disney Productions on January 21, 1969, and announced by the United States Forest Service at press conferences in Los Angeles and San Francisco on January 27, 1969. From January 10th, 1966, through the time of approval of the master plan and up to the present date, Disney’s planning has been per- formed under the constant supervision and review of officials of the United States Forest Service. 9. Under the supervision of the United States Forest Serv- ice, continuing studies will be carried out up to and during the construction phase of this project, in order further to enhance Disney’s ability to serve the public need through this development. 10. In connection with the preparation of the master plan Disney has incurred in excess of three quarters of a million dollars in direct costs for necessary research and creative efforts. 11. Disney has met all of its obligations under the terms of PEEVE ARCHERY eSNG ILE AIL AILS TA NIE EAE Ce age ET SAE RS NR NO ET eer 178 the preliminary planning permit granted January 10, 1966, as amended. 12. Upon final approval of the necessary right-of-way, 2nd award by the State of California Department of Public Works of the first construction contract for a significant portion of the access road from Hammond, California, to Mineral King, the Forest Service has agreed to grant a thirty-year term permit, under which Disney will construct the permanent facilities relat- ed to this development. I am informed that construction under - such contract will not commence before July 1, 1970. 13. As Disney has met all ci its obligations under the terms of the preliminary planning permit now in effect, it does not intend to initiate substantial additional on-site activities until after it has been awarded the thirty-year term permit. 14. The facilities to be constructed by Disney are planned for completion contemporaneously with the completion of construction for the new all-weather access road. As currently programmed, this road is planned for completion by October, 1973. Therefore, Disney now contemplates that its construction program will be begun during the summer season of 1971 and will grow to peak activity during the summers of 1972 and 1973. In any case, no activity is contemplated by Disney which would result in any alteration whatsoever of the natural charac- ter of Mineral King until the summer of 1971, two years hence. 15. The preliminary injunction being sought in this action 7 would injure Disney in the following manner: a. a) Such .n injunction would prevent the responsible Federal and State authorities from completing the administra- tive planning, review and action necessary to prepare for and let the first contract for construction of the all-weather access road. These steps include approval by the National Park Service of the necessary right-of-way agreement fcr that portion of the access road which crosses Sequoia National Park; approval of similar right-of-way agreements for those portions of the road which cross lands administered by the Bureau of Land Menagement 179 and the United States Forest Service; acquisition by the State of California of various parcels of private property affected by the | proposed access route; completion by the State of California of necessary design work; and preparation of the specifications for the initial construction contract and letting said contract. These administrative actions, which will in no way alter the character of the landscape in the Sequoia National Park or the Sequoia National Forest, must be completed before Disney is granted its thirty-year term permit. b) Disney intends continuously to review and improve the master plan for the development of Mineral King up to and through the construction period. The injunction sought would prevent any government officials from consulting with Disney or reviewing and commenting on Disney’s propos- als for improvement of the maste« plan, thus effectively preventing Disney from refining and improving plans for the Mineral King development. c) Delay resulting from an injunction could force Disney to defer its schedule for constructing this badly needed recreational facility, resulting in substantial financial injury to Disney through additional administrative expenses, increased construction costs, reprogramming of personnel requirements and disruption of corporate financial affairs. DONN B. TATUM DONN B. TATUM Subscribed and sworn to before me this 26th day of June, 1969. DIANE USHER OFFICIAL SEAL DIANE USHER NOTARY PUBLIC-CALIFORNIA PRINCIPAL OFFICE IN LOS ANGELES COUNTY My Commission Expires July 10, 1970 \ 180 \ CECIL.F. POOLE Jnited States Attorney PAUL KK. LOCKE Assistant United States Attorney Federal Building, Box 3@055 450 Golden Gate Avenue San Francisco, California 94102 \ ee 5) 556-5134 Attorneys for Defendants IN \THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB \s non-profit California corporation, | Plaintiff, w. \ WALTER J. HICKEL, individually and as Secretary «jet the Interior of the United States; JOHN S. “McLAUGHLIN, individually and as Superintend- \ CIVIL NO. ent of Sequoia National Park; CLIFFORD M. HARDIN, individually and as Secretary of Agri- | 51464 culture of the United States; J. W. DEINEMA, individually, and as Regional Forester, Forest Service, and M. R.. JAMES, individually, and as Forest Supervisor of the Sequoia National Forest, Defendants. y, DEFENDANT’S AFFIDAVIT OF JOHN S. McLAUGHLIN SUPERINTENDENT OF SEQUOIA NATIONAL PARK NATIONAL PARK SERVICE UNITED STATES DEPARTMENT OF INTERIOR F!_£D BY DEFENDANTS IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION {GERNOT ES SLOPE ORE TE: OE PIF EE CO +e OY REARS SRR 181 CECIL F. POOLF United States Attorney PAUL E. LOCKE Assistant United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-5134 Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, ) Plaintiff, CIVIL NO. vs. . ) 51464 WALTER J. HICKEL, AFFIDAVIT OF ‘ JOHN S. Defendants. J McLAUGHLIN State of California City and ss County of San Francisco I, JOHN S. McLAUGHLIN, being duly sworn, depose and Say: 1. That I am now and have been since October 1967 the Superintendent of Sequoia and Kings Canyon National Parks, National Park Service, United States Department of Interior. 2. That in my capacity as Superintendent of said National Parks I am familiar with the proposed Mineral King recreational development. 3. That in connection with the said development, it is planned that an all-year access highway over 9.2 miles of the land in the Sequoia National Park will be constructed and main- tained by the Division of Highways, Department. of Public 182 Works, Siate of California. 4. That the Secretary of Interior on November 19, 1968, approved the construction of said two-lane all-year access road through the Sequoia National Park, subject to precise on-the- . ground location and construction standards that will protect the National Park values. 5. That the general plans and design approved for the construction of the two-lane all-year access road will be engi- neered so that there will be a minimum impact on the National Park values. The alignment of the road will be carefully selected to protect the Sequoia trees, natural areas, existing drainage ways, and the over-all ecology of the area. 6. In connection with said proposed construction, a permit, which will insure maximum protection of National Park values, is proposed to be issued to the State of California to provide the necessary rights of way for said construction. 7. That preliminary work incident to the further planning of said road and prior to the commencement of actual road consiruction will result in only minimal disturbances of the terrain and forest cover in Sequoia National Park. JOHN S. McLAUGHLIN JOHN S. McLAUGHLIN Subscribed and sworn to before me this 27th day of June, 1969. C. COWNE Deputy Clerk United States District Court Northern District of California 183 ~~ [ELDMAN, WALDMAN & KLINE JEO E. BORREGARD IELAND R. SELNA, JR. RATTHEW P. MITCHELL | 00 Russ Building Yan Francisco, California 94104 elephone: 981-1300 Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA . CIVIL ACTION »SHERRA CLUB, a non-profit California corporation, Plaintiff, aeee VS. ) AFFIDAVIT OF MATTHEW P. WALTER J. HICKEL, et al., MITCHELL IN Defer.dants. SUPPORT OF ~ MOTION FOR | PRELIMINARY INJUNCTION | MATTHEW P. MITCHELL, being duly sworn, deposes and says: 1. I aman attomey admitted to practice before the above co and one of the attorneys for plaintiffs in this suit. 2. On June 24, 1969, I met with Rodney Hamblin, an attpimey in the United States Attorney’s office in this District, in tonaection with this suit. I asked Mr. Hamblin for assurance nd permits to Walt Disney Productions, Inc. for a development the Mineral King Valley and to the Division of Highways of the] State of California for the construction of a road through S ee oe PE PEGI TAME TBI, AES OL AEE OOD LOL MG DNF TULL ARES NEC RB 184 Sequoia National Park would not be issued pending resolution of plaintiff's motion for a preliminary injunction herein. He stated that he could not give such assurance. 3. During the course of that conversation, Mr. Hamblin stated, inter alia that he had been asked by the defendants herein whether to proceed with their plans and issuance of permits for the Mineral King development and the Sequoia Park road, shortly after they had been served with process in this suit. He said that he had advised that since there was no prelimi- nary injunction or temporary restraining order in effect, the defendants could proceed on a “‘businss as usual”’ basis. 4. During the course of my conversation with Mr. Hamblin, we went from the corridor of the Federal Building to Mr. Hamblin’s office, where he placed several telephone calls to determine the status of the permits in question. I heard only his side of the conversations during the calls, but he informed me of their content in substance as follows: (a) That a permit for the road through Sequoia Park, apparently in “final form” was on the desk of a Mr. Bowen of the National Park Service, and that it had been contemplated that a Mr. Hartzog, head of the National Park Service would come to California on that day (June 24) to work out certain final details with the California Division of Highways, and that when those details were settled, the permit would be signed; (b) That Mr. Hartzog had postponed his trip and would apparently not be coming to California to finalize the permit until after the weekend of July 4, 1969, but he did not know Mr. Hariz°g’s plans. 5. I have never seen a copy of the permit proposed to be issued to the California Division of Highways by Secretary Hickel or his agents and to my knowledge no attorney for the Sierra Club and no official of the Sierra Club has seei a copy of that permit. I understand it to be an unconditional permit POPE LORELEI, PE 2 OLLEE REELED NEE LOT AL GLA T EOI Me ere: IBALL TTS 4 185 purporting to authorize construction of a road across Sequoia National Park. DATED: June 30, 1969. MATTHEW P. MITCHELL MATTHEW P. MITCHELL Subscribed and sworn to before me “this 30th day of June, 1969. HALLIE KELLER NOTARY PUBLIC IN AND FOR THE STATE OF CALIFORNIA My Commission Expires Nov 17, 1°69 186 United States District Court Northern District of California No. 51,464 Sierra Club, a non-profit California } corporation, Plaintiff, vs. Walter J. Hickel, et al., Defendants. J MEMORANDUM OF DECISION SWEIGERT, J. The Forest Service, Department of Agriculture intends to issue certain permits to Walt Disney Productions, Inc., a@ private corporation, for the construction and mainte- nance of a private hotel-resort, winter-summer complex in the Sequoia National Forest known as Mineral King. The permits will cover in excess of 1,000 acres of land and, according to plaintiff, will ultimately affect as much > as 13,000 acres. It is estimated that the project will in- volve as high as 35 million dollars of private investment. Mineral King, since 1926, has been, not only a national forest under the jurisdiction of the Forest Service, De- partment of Agriculture, but also a national game refuge by special designation of the Congress (26 Stat. Chap. 744). | 187 The permits are to be issued as soon as construction contracts are executed by the State of California for the construciion of a substantial segment of a proposed public highway through the adjoining Sequoia National Park which is under the jurisdiction of the National Park Service, Department of the Interior. The National Park Service intends to issue to the Divi- sion of Highways, State of California, a permit for the construction of a new all-weather, high-speed highway, estimated to accommodate 1200 vehicles per hour each way, through the Sequoia Nationa! Park as the most economically feasible means of providing motorist high- way connection between the California highway system and the proposed Mineral King hotel-resort project which is located, not within the national park, dut in the adjoin- ing national forest game refuge. The case is presently before the court on plaintiff’s application for a preliminary injunction restraining the defendant federal agencies from issuing the permits iz question. The Forest Service Permits for the Resort-Hotel Project The permits about to be issued by the Forest Service will, in effect, enable the Developer to construct and maintain a winter-summer, hotel-resort project which, in- cluding its ‘‘elbow room”’ for related facilities, will com- prise admittedly over 1,000 acres and, as claimed by petitioner, may affect 13,000 acres of fovest-game refuge land. — This is to be accomplished by the device of using two kinds of permits: (1) a 30 year-80 acre ‘‘term’’ permit for ‘‘most of the inajor facilities,’’ and (2) a separate 188 so-ealled ‘‘revocable’’ permit covering an additional 1,000 acres for ‘‘other major facilities, e.g., ski lifts, towers, refuse and sewer disposal, parking areas and roads’’ for use in conjunction with the resort covered by the 30 year- 80 acre term permit. Title 16 U.S.C. § 497 provides, as far as applicable here, that the Secretary of Agriculture is authorized ‘‘to permit the use and occupancy of suitable areas of land within the national forest, not exceeding 80 acres, and for periods not exceeding 30 years, for the purpose of con- structing or maintaining hotels, resorts or other struc- tures or facilities necessary or desirable for recreation, public convenience and safety.’’ (emphasis added) The section makes similar provision for industrial and commercial purposes related to or consistent with other national forest uses; also similar provisions for state agency public uses; also similar provision for summer homes and siores, except that in this latter case the acreage limitation is 5 acres. The legislative history of Section 497, first adopted in 1915, amended in 1948 and broadened to its present form in 1956, indicates quite clearly that, although its purpose — has been to grant the Secretary of Agriculture power to issue term permits for certain kinds of specified uses, its purpose has been also, and equally important, to restrict | term permits for those uses timevvise, i.e. 30 years for any use, and areawise to 5 acres for summer homes and stores, and (since 1956) 80 acres for the uses specified in the kind of usage here involved, i.e., hotels, resorts and other structures or facilities necessary or desirable tor recreation, public convenience or safety. 189 It is also clear from the legislative history that the 80 acre limitation on hotels and resorts was intended to in- clude, not only the resort or hotel, itself, but also any and all structures or facilities related to it, e.g., ‘‘elbow room’’ for ski lifts and other related service facilities. See, 1948 U.S. Code Cong. &d Ad. News, pp. 1337-1338; 1956 U.S. Code Cong. & Ad. News, pp. 3334-3336.* It is also clear from the legislative history that in 1948 Congress refused to broaden (except for Alaska), the pre existing 5 acre limitation for any permit for any purpose and did not, in fact, enlarge the acreage provision from 5 to 80 acres with respect to resort-hotel use of forest land in the United States until 1956 upon the representa- tion that the requirements of commerce, industry, recrea- tion and public use of space in the national forests had substantially changed. (See, 1958 U.S. Code Cong. & Ad. News, p. 3336). It is also clear from the legislative history that in 1956 the Secretary represented to the Congress that his authority to issue ‘‘revocable’’ permits was adequate only ‘‘for uses for which long term tenure is unnecessary or undesirable.’’ (U. S. Code Cong. & Ad. News, p. 3636). The question arises whether this dual permit device is intended to circumvent the clear 80 acre limitation of Section 497 and thereby accomplish what would be in effect a violation of the section. It will be noted that Section 497, which imposes the 80 acre limitation, aces not differentiate between different *See Defendants’ Responding Brief of 7/14/69, attachment No. 1 at p. 3, Letter of 8/5/55, Acting Secretary of Agriculture to Chairman, Senate Comurittee on Agriculture and Forestry. 190 kinds of permits. It broadly refers to any “permit” for the specified uses. So far as so-called ‘‘revocable’’ wnennits are concerned, Congress has never expressly authorized them. Agricul- ture claims authorization for them only under its general power to so regulate the forest lands as ‘‘to preserve the forests thereon from destruction’’ (16 U.S.C. $551) and under an Attorney General’s Opinion of 1928. (35 Op. A.G. 485 [11/27/28]). That opinion, while recognizing an implied power to issue them, narrowly restrict their use to situations in which such a permit is (1) made expressly revocable at will by its terms, and (2) the permitted structures are capable of being removed in case of revocation, and (3) the permitted use will not permanently damage or destroy the land for government use, and (4) the permitted use will be of direct benefit to the United States. It is questionable whether the so-called ‘‘revocable’’ permits to be used by Agriculture in the present case meet the strict standards preseribed by the Attorney General. - In the first place they are not by their terms expressly made terminable ‘‘at will.’’ Clause 15 merely provides that ‘‘This permit may be terminated upon breach of any of the conditions herein or at the discretion of the Regional Forester or the Chief of the Forest Service.’’ (emphasis added) Any such revocation is made subject to administrative appeal under Agriculture’s own regulations. (36 CFR 211.20-211.119). Also, the Forest Service Manual (FSM 41 2711.2-5; 10/68), while stating that these permits are “‘generally for tse of short duration,’’ adds that ‘‘They will be limited to the time actually needed for exercising the use privileges.’’ These provisions strongly suggest to the Developer that the so-called ‘‘re.ocable’’ permit is not really re- vocable ‘‘at will’’ and that any discretionary revocation thereof must be reasonable in the light of all the circum- stances, including the time actually needed for exercising the use privileges covered thereby—use privileges which in the present case are so coupled with the 30 vcar term permit that the time actually needed for exercising them would obviously be at least 30 years. Clause 11 provides that ‘‘Upon abandonment, termina- tion or revocation or cancellation of this permit the permittee shall remove within a reasonable time all struc- tures and improvements . . . and shall restore the site unless otherwise agreed upon in writing or in this permit. ... There is no requirement that the structures shall in fact be capable of such removal or that the use will not be in fact such as to permanently destroy or damage the land for government use. Further, the uses granted to the Developer by the two purportedly separate permits admittedly relate to a single, unified project and are obviously interlocked and inter- related. It is inconceivable that Agriculture would, or could under the terms of the ‘‘revocable’’ permit and the cir- ‘eumstances of its issuance, suddenly and ‘‘at will’’ re- | quire the Developer to remove ski lifts, towers, refuse and 192 sewage disposal, parking areas and roads covered by that permit and thus effectively destroy the 35 million dollar investment made by the Developer under his 30 year-80 acre term permit. The very opinion of the Attorney General relied on by Agriculture warns of just such a possible danger to the public interest in granting revocable permits, saying: ‘‘In cases where it appears that the permittee intends to make substantial improvements the removal of which would cause him a great loss in case of revocation of the permit, it is a matter of departmextal policy whether a situation should be created by the issue of a permit which may afterwards embarrass the head of the department in the exercise of the powers of revocation.”’ For the foregomg reasons we conclude that the pro- posal of Agriculture in the pending case, if carried out, may involve a violation not only of the letter, but also the purpose and intent of Section 497 so far as its 80 acre limitation is concerned. To hold otherwise would be to assume that the Congress when enacting and amending this acreage limitation, con- templated that it could be circumvented, even nullified, by the device of coupling two different kinds of permits for a single, unified, private hotel-resort development, occupying more than 1,000 acres of a forest game refuge area. If Congress had any such situation in mind, it could have spared itself time and trouble by omitting any area limitation—or hy otherwise indicating its intent. Cer- tainly Congress could not have been so naive as to think that ‘‘revocable’’ permits, issued under such cireum- stances, would really be revocable. 193 Nattonal Park Service—Permit for the Highway Interior proposes to issue to the Division of Highways, State of California, a permit for the construction of a highway through the National Park to connect the Cali- fornia Highway system with the ‘Mineral King develop- ment, which is located, not within the Park, *“t outside of it in the national forest game refuge area. Interior is entrusted with administration of the national park system by such means and measures as conform to the fundamental purpose of said parks, i.e., to conserve the scenery and the natural and historic objects and wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations (16 U.S.C. §1) and, specifically, as to Sequoia National Park, for the preservation n_ from_injury of all timber, mineral deposits, natural curiosities and wonders and their reten- tion in their natural condition. 16 U.S.C. § 43. There can be no doubt that Interior has the power to construct and improve roads ani trails in the national parks (16 U.S.C. §8) and that, the wide discretion of Interior in that respect should not ordinarily be inter- fered with. It appears, however, that in May, 1968, Interior adopted certain Park Road Standards providing that park roads are not continuations of state ana federal highway net- work; that they should not be designed to serve as con- necting links for routing motorists through thc parks to reach ultimate destinations or simply as a connecting device to link points of interest and, further; that a professional ecological Sitti “Fosead ap- proval of road conatruction and design to make sure that > we 194 resulting effects on wildlife, drainage, stream flow and climate will be minimal. Plaintiffs also cite a 1962 House Committee Report of tke Congressional Committee of Interior and Insular Affairs (dealing with the Padre Island National Sea- shore) stating that construction therein of a highway for general public convenience would give that }voject a function which does not belong to it and that such a roadway might spoil its very purpose. In the present case the record shows that the pro- posed highway, so far as it will cut through Sequoia National Park, is designed and intended, not as an ad- junct to the National Park, itself, but as a connecting link to route motorists through the Park to reach an ultimate destination outside the Park—thLe proposed, pri- vate Mineral King zesort-hotel complex in the adjoining forest game refuge area. Thus, the question arises whether the particular high-.. ~way here in question is fairly within the power of In- terior as interpreted by its own standards. National Park Service—The Transmission Line It further appears from the record that Interior pro- poses to permit construction of a 66,000 volt power line across the National Park in order to enable the Developer to obtain necessary electric power for the project. Title 16 U.S.C. §45(c), which applies specifically to Sequoia National Park, provides that no permit for transmission lines or for the transmission of power . within the Park limits shall be granted or made without specific authority of Congress. 195 Interior contends that this statute was intended to apply only to the construction and development of hydro- epiro projects within the Park and does not preclude i from granting rights-of-way across park lands for lings for the transmission of electric power, provided that such right-of-way shall be allowed within or through any national park only upon approval of the chief officer of the|department and upon a finding that the same ic .-ot incompatible with the public interest. I¢ will be noted, however, that this latter section/is a genpral statute while Section 45(c), deals specifically with Seqnoia National Park and, without making any ‘distinc ‘on| between electric projects within or without the Park, ly provides that, so far as that Park is concerned, » shall be no permit for any transmission line or for us, there arises the further question concerning the wr of Interior to permit the transmission line—absent ic authority from Congress. Failure to Hold Public Hearmgs Pihintiff contends that 110 public hearings were ever by either the Forestry Service with respect to the Mindral King Development or by Interior with respect e highway or transmission line. It| appears from the record that in March, 1953, Congressman Hagan conducted a hearing at Visalia to deteymine what could be done to expedite development 196 of Mineral King. There is, however, no record of any public hearing called or conducted by either the Forestry Service or by Interior. Whether Forestry Service was required by law to hold such hearings is not clear. As to Interior, however, plaintiffs contend that it has violated its own rule (34 Fed. Reg. 19 [1/29/69]), calling or both corridor and design public heari.gs with respect to any major road project that would have a substantial social economic or environmental effect. Plaintiff contends that a purported ‘‘revocation’’ of that rule by the new Secretary on April 26, 1969 (34 Fed. Reg. 6985)' was ineffective because there was no com- pliance by the Secretary with the Adminisirative Proce- dure Act (5 U.S.C. § 553(b)(c)), providing for publication of general notice of proposed rule making in the Federal Register (553(b)) and opportunity for interested persons to participate in the rule making (553(c)). ‘‘Rule making’’ is defined by the Administrative Pro- cedure Act (5 U.S.C. $551(5)) to include, not only the formulation or amendment of rules, but also the ‘‘repeal- ing’’ of rules. Interior contends that the requirements of 5 U.S.C. §553(b)(c) are not applicable to_rule making on ‘‘a matter relating to agency management or personnel or to public property, loans, grants, benefits or contract)’ (see, Sec. 553(a)(2)), or to ‘‘interpretive rules, general statements of policy or rules of agency organization, pro- cedure or practice.’’ (See, Sec. 553(b) (a)). 1A press release of April 26, 1969 states that the reason for this purported revocation was to provide even broader public review and comment—not just on road building, but on all phases of the national park system. oF 197 Thus, there is presented the further question whether repeal, without general notice, of the pre-existing rule calling for public hearing concerning major road projects having substantial, social, economic or environmental effects, is a mere rule of procedure, practice or policy and, if not, whether Interior was required by its own rale to conduct public hearings on the highway in ques- tion. Plaintiff’s Standing to Sue Defendants contend that plaintiffs have no standing to sue because they have nothing more than a general inter- est in common with all citizens and cannot show that any private, substantive legaily protected interest of theirs is being directly invaded within the meaning of such cases as Assoctated v. Ickes, 134 F.2d 694 (C.A. 2d 1943); Anti- Facist v. McGrath, 341 U.S. 123, 140-41, 151-52 (1951); Perkins v. Lukins, 310 U.S. 113, 125 (1940); Assuciated v. Camp, 406 F.2d 837, 838 (8th Cir. 1969). We are of the opinion, however, that vlaintiff, Sierra Club, a non-profit California corporation, organized and existing for the purposes described in its complaint (Par. 3), may be held to be sufficiently aggrieved to have stand- ing as a plaintiff herein. See, Scemic v. FPC, 354 F.2d 619 (2d Cir. 1965); United Church v. FCC, 359 F.2d 994 (D.C. 1966); Road League v. Boyd, 270 F.Supp. 650, 661 (N.Y. 1968); Powelton v. HUD, 284 F.Supp. 809, 825-828 (Pa. 1968). Propriety of Preliminary Injunction Defendants rest largely on the argument that there is . no such urgency as would justify a preliminary injunction ‘ at this time. 198 It appears from the record that the National Park Service permit for construction of the highway by the State of California is ready for issuance at any time an-, when issued, will authorize the State of California to proceed at any time thereafter with highway construc- tion. Affidavits presented on behalf of defendants indicate ‘that the State of California will not actually be in a position to take bids for the highway construction until May 1, 1970 and that actual highway construction can not actually begin until July 1, 1970. It appears, however, that as soon as Interior grants the highway permit, the State of California, which is not a party to this action and, therefore, not amenable to orders of this court, will be in a position to control the time within which highway construction contracts will be let and thus in effect determine the time when Agricul- ture must issue its permits to the Developer for con- struction of the Mineral King project. In view of the possibility that Interior may issue the highway permit at any time, thereby substantially chang- ing the existing situation and setting events in motion, plaintiff should not be left to ‘‘watchful waiting’’ upon the State of California. We find, therefore, that there is a sufficient showing of imminent and irreparable injury to require pendente lite relief. Conclusion It is true that the scope of judicial review over officials to whom Congress has entrusted the control and manage- ment of public lands is a particularly narrow one in which 199 there is, perhaps, less reason for interference with ad- ministrative discretion than in any other kind of adminis- trative action. Ickes v. Underwood, 141 F.2d 546, 548 (C.A. D.C. 1944). Nevertheless, we find that plaintiff has raised questions, concerning possible excess of statutory authority, saff- ciently substantial and serious to justify a preliminary injunction against both Agriculture and Interior y 2nding trial of these issues on the merits or the further order of this court. It is beside the point to argue, as do defendants, that a preliminary injunction in this case would interfere with progress by raising doubts about the validity of similar arrangements made with respect to 84 other recreation areas, including 5 in California. ; This court is not conceyted with the controversy be- tween so-called progressives and so-called conservation- ists. Our only function is to make sure that administra- tive action, even when taken in the name of progress, conforms to the letter and intent of the law as laid down by Congress and which only the Congress can change whenever it finds such chanje to be in the public interest. Plaintiffs’ motion for preliminary injunction is granted. Dated: July 23rd, 1969. W. T. Sweigert, | United States District Judge Filed July 23, 1969, Clerk, U.S. Dist. Court, San Francisco. 200 FILED AUG4 1969 C. C. EVENSEN, Clerk IN THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA aN SIERRA CLUB, a non-profit California corporation, Plaintiff, be 51464 WALTER J. HICKEL, individually and as Secretary of the Interior of the United States, et al., INJUNCTION Defendants. This cause coming on to be heard on the motion of plaintiff for a preliminary injunction and the Court having considered the verified complaint, the affidavits submitted in support of and in opposition to said motion and the arguments of counsel and being fully advised of the premises and; (a) it appearing to the Court that the defendants named, and each of them, threaten to commit the acts complained of and hcreinafter set forth as enjoined hereby; and (b) that unless said acts are enjoined, irreparable injury may result to plaintiff; and (c) that the pendancy of a preliminary injunction is not likely at this time to produce costs or damages to defendants, or any of them; and good cause appearing therefor, NOW, THEREFORE, PENDING FURTHER ORDER OF THIS COURT, IT IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS: 1. Defendants CLIFFORD M. HARDIN, J. W. DEINEMA and M. R. JAMES, and each of them, individually and in their respective official capacities, and their respective agents, serv- 201 ants, employees and attorneys and all persons in active concert and participation with them be and they hereby are restrained and enjoined from doing any of the following acts: from grant- ing any permits, rights-of-way or approvals with respect to the Mineral King development plan of Walt Disney Productions, Inc., approved by the Secretary of Agriculture on January 21, 1969, or of any other development of like or similar nature, the effect of which grant would be to authorize construction or any other physical interference with, or disturbance of, the terrain within the Sequoia National Game Refuge, including all physi- cal features located thereon; provided, however, that this shall not be deemed to preclude the conduct of investigations, plan- ning, surveys and exploration in connection with the design of said development which do not interfere with the said terrain or physical features or the issuance of any permits, rights-of-way or approvals incident thereto. 2. Defendants WALTER J. HICKEL and JOHN S. McLAUGHLIN, and each of them, individualty and in their respective official capacities, and their respective agents, serv- ants, employees and attorneys and all persons in active concert and participation with them be and hereby are restrained and enjoined from doing any of the following acts: from granting any permits, rights-of-way or approvals with respect to the approximately 9.2 mile highway which is more particularly identified in plaintiff's Second Claim for Relief, proposed to cross the Sequoia National Park to the site of the Mineral King development of Walt Disney Productions, Inc., or of any other highway of like or similar nature the effect of which grant would be to authorize construction or any other physical inter- ference with, or disturbance of, the terrain of Sequoia National Park, including all physical features located therein; provided, however, that this shall not be deemed to preclude investiga- tions, planning, surveys and exploration in connection with the design of said highway which do not interfere with the terrain or the physical features located thereon or of the issuance of permits, rights-of-way or approvals incident thereto. 202 3. That, for the present, no bond is required in connection with this injunction, the Court specifically reserving the right to review at any time the likelihood that the continued pendancy of this injunction would be the cause of damage to defendants and the right to require that a bond be furnished as a condition to the continued existence of the order at such time as such damage would appear likely. 4. That the defendants shall have ten (10) davs within which to file an answer to the allegations of the complaint from the date hereof. Dated: August 4th, 1969 W. T. SWEIGERT Judge, United States District Court Northern District of California 5 ee 205 : FILED CECIL F. POOLE AUG 12 1969 United States Attorney _ C.C. EVENSEN, Clerk PAUL E. LOCKE Assistani United States Attorney Federal Building, Box 36055 450 Golden Gate Avenue San Francisco, California 94102 Telephone: (415) 556-5134 . Attorneys for Defendants IN’ THE UNITED STATES DISTRICT COURT IN AND FOR THE NORTHERN DISTRICT OF CALIFORNIA SIERRA CLUB, a non-profit California corporation, E Plaintiff, vs. CIVIL NO. WALTER J. HICKEL, individually and as Secretary 51464 of the Interior of the United States, et al., Defendants. JOINT ANSWER COME NOW the defendants, and each of them, and file this Joint Answer to the Complaint herein, insofar as they or any of them are required to answer. I Defendants allege that they are without knowledge or information sufficient to form 2 belief as to the truth of the allegations contained in Paragraph 3 of the Complaint, except that defendants admit that plaintiff is a non-profit corporation organized and operating under the laws of the State of California. II Defendants admit the allegations contained in Paragraph 4 of the Complaint, except that the correct nuin¢ of the Federal Agency in charge of the Sequoia National Fouest is the Forest Service and not the National Furest Service as referred to in Sub-Paragraphs (c) and (e) thereof. Ill Defendants admit the allegations contained in ———_ 5 and 6 of the Complaint. \ IV Defendants admit the allegation in the first sentence of Paragraph 7 of the Complaint and admit the allegations in Sub-Paragraph (c) thereof except that the estimates referred to therein are peak figures of the respective alleged uses and not average hourly or daily estimates of said uses; deny that the facilities referred to in Sub-Paragraph (a) thereof will occupy an area in excess of 80 acres; and deny the allegations in Sub- Paragraph (b) thereof. V Defendants deny the allegations contained in the first complete sentence of Paragraph 8 of the Complaint but admit the remaining allegations contained in said Paragraph 8. -VI With respect to Paragraphs 1, 2, 9, 10 and 11 of [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A01. Public record. Not legal advice.