Amicus Curiae Brief — Sierra Club v. Morton

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~ MAY 25 1971 | i

IN THE [nT SEAVER, ¢

Supreme Court of the United States

OCTOBER TERM, 1970

No. So 70-3¢

SIERRA CLUB,

Pevitioner,

‘;

ROGERS C. B. MORTON, et al.,

Respondents,

ON WRIT OF CERTIORARI TO THF UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE ENVIRONMENTAL DEFENSE FUND

AS AMICUS CURIAE

MARK L. EVANS

ANTHONY A. LAPHAM

DONALD S. Burris

PHILIP J. HARTER .

734 Fifteenth Street, NW

Washington, D.C. 20005

EDWARD LEE ROGERS

162 Old Town Road

East Setauket, New York 11733

SHEA

& GARDNER Attorneys for Amicus Curiae

Of Counsel Environmental Defense Fund

ES TELL ELE, AEA E DARED AED

Washington. 0D C - THIEL PRESS - 202 . 393-98:'5

— (1)

——

TABLE OF CONTENTS

INTEREST OF THE ENVIRONMENTAL DEFENSE

FUND ....---.---0-: Du awe oaawe ae esaa wanes

STATEMENT OF THE CASE .................0-00.

INTRODUCTION AND SUMMARY ..... Lc caceccceeces

AY t,t Se ne ar me

A. Framing the Damn ww nn ccc eee cwcccse

1: The prevailing test® =... 0. ee ee eee

2. The Sierra Club’s allegations .................

3. The courts below ............ beeveosaees

B. Stake in the Outcome ..................0200.

1. Injury to the organizati..n’s established interests ...

2. The organization as representative of its members’

| Se ee ee ea ee eee

3. The organization as spokesman for the public

oS ee ee ee ae ee eee es

4. The Ninth Circuit’s fears are unfounded .........

C. Zone of Interests... 0.2... 00 cece eee ee eeee

1. The Data Processing formulation .............

2. The Investment Company test ...............

DD. ROVING 6 ioe 45s 6 b= 6 5-0 Oa OR Oe Re Ae oe eS

Il. THE PARK HIGHWAY ISSUE ...................

A. The Statutory Context ................. fees .

B. Approval of the Road Was Not Based on Any

Legitimate Park Purpose .....................

C. The Secretary’s Approval of the Mineral King

Highway Cannot Be Justified on the Ground

That It Would Create Incidental Park Benefits

in the Form of Wider Public Use ...............

D. The Proposed Road Cannot Be Justified on the

Theory That It Is Simply an “Improvement” of

an Existing Road 6... ee eee

(ii)

E. The Park Purposes Defined by 16 U.S.C. § 1 Are

eT a 69

F. Only Congress Can Autt.orize a Park Routing

for the Mineral King Highway ..............,.. 7

CONCLUSION ...... 0... cece eee teen eae, 78

TABLE OF CITATIONS

CASES:

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) ....... 48

Alameda Conservation Ass’n v. California, 437 F.2d 1087

(9th Cir. 1971), cert. denied, 39 U.S.L.W. 3455 (April

TD TGTA) hee oe oe eb oes eee eee ene passim

Arthur v. Fry, 300 F. Supp. 622 (E.D. Tenn. 1969). ........ 10

Associated Industries, Inc. v. Ickes, 134 F.2d 694 (2d Cir.), :

vacated as moot, 320 U.S. 707 (1943) ......... see 14,4

Association of Data Processing Service Organizations, Inc.

v. Camp, 397 U.S. 150 (1970) .............00006. passim

Barash v. Seaton, 256 F.2d 714 (D.C. Cir. 1958). .......... 7

Barlow v. Collins, 397 U.S. 159 (1970) ........... 8, 11, 12,13

Baker v. Carr, 369 U.S. 186 (1962) .............. 11, 17,18

Barrows v. Jackson, 346 U.S. 249 (1953)... ......--0-5

Burlington Truck Lines v. United States, 371 U.S. 156

(1962) ge ee ok ob eG oe eee eS 45 oe ee ED

Citizens Association of Georgetown v. Simonson, 403 F.2d

175 (D.C. Cir. 1968) 2... eee ec ee tere ene teees

Citizens to Preserve Overton Park, Inc. v. Voipe,

39 U.S.L.W. 4287 (U.S., March 2, 1971) 2.2... eee eee

Citizens to Preserve Overton Park, Inc. v. Volpe, 432 F.2d

1307 (6th Cir. 1970) 2.21. eee eee

Citizens Committee for Hudson Valley v. Volpe, 425 F.2d

97 (2d Cir.), cert. denied, 400 U.S. 949 (1970) .....---

Crowther v. Seaborg, 312 F. Supp. 1205 (D. Colo. 1970) .

(iii)

Page

Delaware v. Pennsylvania N.Y. Central Transp. Co.,

2 BNA Env. Rep. Cas. 1355 (D.Del. 1971). 2.00.00... “ca 23,37

Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965), cert. denied,

383 U.S. 912 (1966)... 70

Environmental Defer:se Fund, Inc. v. Corps of Engineers,

2 BNA Env. Rep. Cas. 1260 (E.D. Ark. 1971) ...., 2, 23, 29, 37

Environmental Defense Fund, Inc. v. Corps of Engineers,

2 BNA Env. Rep. Cas. 1173 (D.D.C. 1) ) 2, 23

Environmental Defense Fund, Inc. v. Hardin, 428 F.2¢ 1093

(D.C. Cir. 1970)... 2, 36, 41

Environmenial Defense Fund, Inc. v. Hardin, 2 BNA Env.

Rep. Cas. 1425 (D.D.C. AVINY eo eo kee oes evncn. 2

Environmental Defense Fund, Inc. v. Hoerner Waldorf Corp.,

1 BNA Env. Rep. Cas. 1640 (D. Mont. 1970)... 2... 000.. 2

Environmental Defense Fund, Inc. v. Montrose Chemical

Corp., C.D. Cal., Civil No. 70-2389-ALS .......00000 2

Environmental Defense Fund, Inc. y. Resor, D.D.C., Civil No.

Ws ixee FE Re ama OE a ween wen afin... 2

Environmental Defense Fund, Inc. v. United States Dep’t of

Health, Educ. & Welfare, 428 F.2d 1083 (D.C. Cir. 1970)... 2, 37

FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940) .... 40

Ferry v. Udall, 336 F.2d 706 (9th Cir. 1964), cert. denied,

SI US. 904 (1965) oo 70

Flast v. Cohen, 392 U.S. 83 (1968) 2... «passim

Henderson v. United States, 339 U.S. 817 (1950)........... 18

UP CREN G8 Oe Code Se eee ena. Passim

Izeak Walton League v. St. Clair, 313 F. Supp. 1312 (D.

NAD. os: 00 crests Sora ed sues are... 22

Jenkins v, McKeithen, 395 U.S. 41] (1969) 2... 14

Lane v. Hoglund, 244 U.S. 174 (1917) 71

Lodge 1858, American Federation of Government Employ-

ces v. Paine, 26 Pike & Fischer Ad. L.2d 750 (D.C. Cir.

vies en neinatibtaeeihwnaetanets ccs tic... 28

SERPS Be i sete gy Rs aaron eee ee tee Wea rete

eae

CEM o>

Res

(iv)

Page

MacArthur Liquors, Inc. v. Palisades Citizens Association,

200 P20 972 CR IE N09) oer ke ees woe ee 28

McKay v. Wahlenmaier, 226 F.2d 35 (D.C. Cir. 1955) ......., 7

McMichael v. United States, 355 F.2d 283 (9th Cir. 1965) .... 79

Moore v. Robbins, 96 U.S. 530 (1887) ................. 7

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)... 18 97

National Automatic Laundry & Cleaning Council v. Schultz,

D.C. Cir., No. 22,692 (March 31, 1971) ............ 6, 28, 43

National Welfare Rights Organization v. Finch, 429 F.2d 725

DC. CW. 1970) oe cc ewhes we ke eek dee ene euns 34, 37, 42

National Motor Freight Traffic Ass’n v. United States, 372

Mi. DIOL I9GS) sia ok we es oe Se we Bs ee echoes: +]

National Association of Securities Dealers, Inc. v. SEC, 420

F.2d 83 (D.C. Cir. 1969), vacated, 39 U.S.L.W. 4406

(US., April $, 197]) ccc ccc essere wesc eecesises 14

NAACP v. Button, 371 U.S. 415 (1963)................. 17

New Mexico State Game Comm’n v. Udall, 410 F.2d (10th

Cir.), cert. denied, 396 U.S. 961 (1969) ............. 70, 77

Office of Communications of United Church of Christ v.

FCC, 359 F.2d 994 (D.C. Cir. 1966) .............. passim

Panama Canal Co. v. Grace Line, !nc., 356 U.S. 309 (1958) ... 72

Parker v. United States, 307 F. Supp. 685 (D. Colo. 1969) .... 23

Pennsylvania Environmental Council, Inc. v. Bartlett, 315 F.

Supp. 298 (M.D. P80 1970) «ce coe ee ew sees 23, 38

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ........... 17

Powelton Civic Home Owners Ass’n v. HUD, 284 F. Supp.

809 (E.D. Pa. 1968).... 0.2... eee eee eee eee 38

Road Review League v. Boyd, 250 F. Supp. 650 (S.D.N.Y.

FOG) oo eee eee ee et eee a ees eee! 20

Safarick v. Udall, 304 F.2d 944 (D.C. Cir.), cert. denied, 371

90) C962) one ce es eee eee es wees tees 10

SEC v. Chenery Corp., 318 U.S. 80 (1943) .........-2008

Sierra Club v. Hardin, 2 BNA Env. Rep. Cas. 1385, 1392 .

(D; AlSKG: IST) coe de eee ee eee ene hes passim

(v)

State of Washington Dep’t of Game v. FPC, 207 F.2d 39]

(1953), cert. denied, 347 U.S. 936 (1954) .. 0.00...

Scenic Hudson Preservation Conference v. FPC, 354 F.2d

608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966) . .

Tennessee Elec. Power Co. v. TVA, 306 U.S. 118 (1939) ...

Thor-Westcliffe, Inc. v. Udall, 314 F.2d 257 (D.C. Cir.), cert,

denied, 373 U.S. 951 ( 4) Ss

Udall v. Tallman, 380 U.S. 1 ( 1965) .......

Udall v. Washington, Va. & Md. Coach Co., 398 F.2d 765

(D.C. Cir. 1968), cert. denied, 393 U.S. 1017 (1969) ...

United States ex rel. Chapman v. FPC, 345 US. 153 (1953)...

United Federation of Postal Clerks vy. Watson, 409 F.2d 462

(DC. Cir.), cert. denied, 396 US. 902 (1962)

Universal Interpretive Shuttle Corp. v. Washington Metropoli-

tan Area Transit Comm’n, 393 U.S. 186 (1968)

Willcoxson v. United States, 313 F.2d 884 (D.C. Cir.), cert,

denied, 373 U.S. 932 (1963)

STATUTES AND REGULATIONS

Title 5, United States Code:

Section 701(a)

Section 702

Section 700 1... .

Section 106(2)( 4

Section 706(2)(C)

Title 16, United States Code:

Section] ..... |.

Section 1¢(b)

Section 3

TESTE ESR SDE Ce hwo Ow ee % ws

OEE EEE DG HH SH ee he ew ee op

OO RNA DE TEER A HOH Om wwe wu ao

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EEE OEE EEE ES ERO dS 6 bak es

) 2 ORES EERE RECS eee eee eee us

TN SO ee Rie 6s! ew 6 60: 6 @ oe

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Page

a ee a ee Passim

Section20 ............ bor aheeees eens 58, 62, 69, 77

se a) a a ee 45,73

SOCHON 4S 0 cee csv nteeersvescecevsvcevng 73

Section 45a 0... ce tet ee ee cee nee 73, 78

SOCHON ATG oh es ness e eye ane ace whi venas 45, 74, 75

Section 475) 6... ee ee eee eee 46

Sections 528-31 ........... ee ee ee 46

BOCUOR SOL ces bee eee ee he eK Obes Peees 46, 70

Section 1131-36 .... 2... 20... 0. cee eee eee eee, 53

Section 1131(c) 2... . 2. ee eee ee eee 53

Section 1132(c) .......... 0... eee ee ee eee 53

Section 1133(c) .... 2... . ce ee ee ee ee eee 54

Title 30, United States Code:

oo |) eae a ee ae 10

Title 42, United States Code:

SOCEUM BIL oie ep Hee Re Oe SSSR Re 4 x 7

Title 43, United States Code:

OCU TNT) oa ora be ewe eee eeaderees 10

Title 49, United States Code:

OCHO D0 oe 4 ens 6s oe ees Hes dae eee eta 21

Title 36, Code of Federal Regulations:

Sections 5.6(b){c) 2.2... 2... cee ee eee 71

MISCELLANEOUS

Bayliss, Planning Our National Park Roads and Our Na-

tional Parkways, Traffic Quarterly (July 1957) ....... 67

Cahn, Will Success Spoil the National Parks?, Christian

Science Publishing Society (1968) ...........-00055 65

Darling and Eichhorn, Man and Nature in the National

Parks, Conservation Foundation (2d ed. 1969)....... 38, 71

Davis, K.C., Administrative Law Treatise-1970 Supplement

(1971). oc ce ce eee eee nee eeeee 16

(vii)

Page

Jaffe, Standing Again, 84 Harv. L. Rev. 633 ( FID 6 se ss 16

Park Road Standards, Department of the Interior, National

Park Service (May 1968) ..................... 59, 63

Public Use of the National Parks; A Statistical Report

1954-1964, Department of the Interior, National Park

Service (1966) ........ 0... eee. 66

Public Use of the National Parks December 1969, Depart-

ment of the Interior, National Park Service (1969) ... 66, 76

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 939

SIERRA CLUB,

Petitioner,

ROGERS C. B. MORTON, et al.,

Respondents,

—- Pp

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE ENVIRONMENTAL DEFENSE FUND

AS AMICUS CURIAE

INTEREST OF THE ENVIRONMENTAL

DEFENSE FUND

The Environmental Defense Fund (EDF) is a non-profit,

public-benefit corporation organized under the laws of the

State of New York. Its nationwide membership of 21,000

includes scientists, educators, lawyers, and other citizens

dedicated to the protection of our environment and the wise

use of the nation’s natural resources. Among EDF’s primary

objectives is “to effect a joining of the best scientific find-

ings with the most appropriate social action discovered by

the social sciences and legal theory in order [to] * * * best

8 TLE ELE YT

PENA. SITES

;

promote a quality environment” [Bylaws, Art. 1:2(d)].

EDF’s ‘“‘social action” includes education, research, and-—

when necessary “to prevent * * *environmental degrada-

tion’*—legal action, which is designed in part “to provide

scientists fair and impartial forums in which their scientific

findings may be presented objectively to their fellow citi-

zens” [id., Art. 1:2(f)}.

In accordance with its objectives, EDF through its Scien-

tific and Legal Advisory Committees evaluates and defines

environmental issues, collects research data relating to those

issues, and determines whether litigation is the appropriate

course to follow. Its national membership and professional

resources thus enable EDF to focus public attention upon

environmental incursions that might otherwise go unrecog-

nized. Its prosecution of many major environmental law-

suits! has established it as one of the nation’s most effective

and responsible litigants in this important field.

EDF has a vital interest in the outcome of this case.

First, if the Ninth Circuit’s view on standing were adopted

See, e.g, Environmental Defense Fund, Inc. v. Hardin, 428 F.2d

1093 (D.C. Cir. 1970) (DDT pesticides); Environmental Defense Fund,

Inc. v. United States Dep’t of Health, Educ. & Welfare, 428 F.2d 1083

(D.C. Cir. 1970) (DDT tolerance levels); Environmental Defense Fund,

Inc. v. Corps of Engineers, 2 BNA Env. Rep. Cas. 1260 (E.D. Ark.

1971) (Gillham Dam); Environmental Defense Fund, Inc. v. Montrose

Chemical Corp., C.D. Cal., Civil No. 70-2389-ALS (complaint filed

October 22, 1970) (DDT discharge in coastal waters); Environmental

Defense Fund, Inc. v. Corps of Engineers, 2 BNA Env. Rep. Cas. 1173

(D.D.C. 1971) (cross-Florida barge canal); Environmental Defense

Fund, Inc. v. Hardin, 2 BNA Env. Rep. Cas. 1425 (D.D.C. 1971)

(Mirex); Wilderness Society, Inc. v. Hickel, 1 BNA Env. Rep. Cas. 1335

(D.D.C. 1970) (trans-Alaska pipeline); Environmental Defense Fund,

Inc. v. Resor, D.D.C., Civil No. 2394-70 (order filed August 14, 1970)

(nerve gas); Environmental Defense Fund, Inc. v. Hoerner Waldorf

Corp., 1 BNA Env. Rep. Cas. 1640 (D. Mont. 1970) (paper mill dis-

charges). EDF has also filed petitions and/or been heard as a party in

proceedings before numerous federal agencies, including the Atomic

Energy Commission, the En-ironmental Protection Agency, the Federal

Aviation Administration, tiie Federal Power Commission, the Federal

Trade Commission, anu the National Forest Service.

——_ 3

by this Court, doubt would be cast on the ability of EDF to

accomplish its objectives through litigation in the federal .

courts where it considers such litigation necessary to protect

our natural environment. Second, EDF has an important

organizational commitment to promoting the proper con-

duct of federal officials in decisions that affect public lands.

Petitioner and respondents have c@nsented to the filing

of this brief.”

STATEMENT OF THE CASE

The Sierra Club, a non-profit California corporation,

brought this action to enjoin the issuance of federal permits

for the development of a large private resort in the Mineral

King Valley—located in the Sequoia National Game Refuge

area of Sequoia National Forest—and the construction of an

access road through the Sequoia National Park. In its

' motion for preliminary injunction the Sierra Club asserted

that the threatened action would permanently destroy

natural values of public lands and would irreparably harm

the public interest in conserving those values. It alleged that

the Secretary of the Interior would exceed his authority by

authorizing the construction of the new highway and the

installation of a private transmission line across the Park,

and that the Secretary of Agriculture would exceed his

authority by granting the developer a revocable permit

covering some 13,000 acres of National Forest land in addi-

tion to a term permit covering 80 acres.

2025 $y SR , :

The District Court granted the preliminary injunction.

But on appeal the Ninth Circuit vacated the injunction,

holding (1) that the Sierra Club lacked standing and (2) that

the Sierra Club had shown neither a ‘reasonable certainty”

that it would prevail nor irreparable injury. Judge Hamley,

concurring in the result, would have held that the Sierra

Club had standing.

The written consents have been filed with the Clerk.

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’

We discuss only two of the issues raised in this case:

whether the Sierra Club has stanuing to challenge the admin-

istrative actions of federal officials in approving the Mineral

King project, and whether the Secretary of the Interior

acted within the scope of his statutory authority in approv-

ing a routing through Sequoia National Park of an access

highway to the Mineral King resort. The facts insofar as

they are relevant to the issues we discuss are stated more

fully in our argument.

INTRODUCTION AND SUMMARY

The standing issue presented by this case—whether a

rational conservation organization may invoke the jurisdic-

tion of the federal courts to challenge administrative action

that affects our natural environment—comes at a time of

increasing recognition both of the crucial role that organiza-

tions play in modern society and of the critical importance

to the future of this planet of sound and enlightened tech-

niques of environmental protection.2 That these comple-

mentary trends may here be conjoined is hardly surprising.

As the urgency of environmental protection and the magni-

tude of the task have become more appari‘, both the need

and the opportunity for citizen participatio.: have expanded.

Aside from involvement at the administrative level, the most

effective means of citizen participation has been resort to

the courts to enforce the laws relating to preservation of

natural resources.

This has by all accounts been both effective and useful.

The Chairman of the Council on Environmental Quality

recently expressed the view, in a letter supporting the tax

exempt status of groups that litigate to protect the environ-

ment, that:

3This Court noted in the opening sentence of its opinion in Citizens

to Preserve Overton Park, Inc. v. Voipe,.39 U.S.L.W. 4287, 4288

(March 2, 1971), the “growing public concern about the quality of

our natural environment * * *.” ‘

“Private litigation before courts and administrative

agencies has been and will continue to be an import-

ant environmental protection technique supplement-

ing and reinforcing government environmental

protection programs.’

That organizational litigants, and especially national groups

like the Sierra Club and EDF, have played a central part in

this favorable development simply reflects their Capacity and

willingness to identify, study, and, where necessary, chal-

lenge administrative action or inaction that may be harmful

tc the environment. As organizations with national orien-

tation and substantial membership, they bring to bear the

professional and financial resources necessary to participate

effectively in what is frequently a technical and complex

area.

If it were not for such groups, many critical environmental

issues might never be revognized or, if recognized, might

never be brought forcefully to the attention of the agencies

or the courts. Judge Plummer observed in the recent case

of Sierra Club v. Hardin, 2 BNA Env. Rep. Cas. 1385, 1392

(D. Alaska 1971), that barring environmental groups from

the federal courts ‘“‘would have the practical effect of pre-

empting many meritorious actions, as one individual, or a

small number of individuals, would have to sustain the

entire financial burden of the lawsuit.” The costs of effec-

tive litigation are so great and the opportunity for an award

of damages so unusual that “few members of the general

public will have the resources or courage to face such odds

for the sake of vindicating a right to which all are entitled

as a matter of law.”

*1 BNA Env. Rep. 629 (No. 25, Oct. 16, 1970). The letter,

written to the Comunissioner of Internal Revenue, explained that liti-

gating groups have strengthened anti-pollution enforcement, have

encouraged elimination of regulatory gaps, and have represented the

public’s interest in enforcement of new governmental procedures. /d.

at 701 (No. 28, Nov. 6, 1970).

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Organizations are, by design and function, able to distill

and effectively channel the views and interests of many

individuals. They are increasingly looked to both by citi-

zens who wish to express their views through resourceful and

vigorous representatives and by all three branches of the

government, which seek reliable expressions of citizen views.

As Judge Leventhal recently remarked in a related context:

“The underlying reality is that trade associations and

other group representatives of interests are accepted,

sometimes welcomed, by executive officials and

agencies as a means of presenting and orgar ag in

manageable form the inquiries and objections that

the Government must consider. * * * Interest groups

are, in today’s complex society, an indispensable part

of an effective channel of communication between

government and the persons whose conduct the

government seeks to affect.”®

In matters of environmental protection, where an unwise

or unlawful action may affect the entire population but

where frequently no one individual suffers special or perhaps

even noticeable injury, organizations play an especially

important role in assessing and publicizing the ultimate

impact of the action and in formulating an appropriate

response. Thus, Judge Merrill has stated persuasively in the

context of environmental litigation:

“Where, as here, the case presents issues of public

moment—where what is at the heart of the problem

is an alleged injury common to a substantial segment

of the public—it may well be that the common cause

can better and more earnestly be presented through

5 National Automatic Laundry & Cleaning Council v. Schultz, D.C.

Ci: , No. 22,692 (March 31, 1971), slip opinion p. 7. The Second

Circuit in its landmark Scenic Hudson decision noted the corollary

that “[rJepresentation of common interests by an organization * * *

serves to limit the number of those who might otherwise apply for

intervention and serves to expedite the administrative process.” Scenic

Hudson Preservation Conference v. FPC, 354 F.2d 608, 617 (2d Cir.

1965), cert. denied, 384 U.S. 941 (1966).

an association of those affected than through a col-

lection of individuals each tendering his own modest

share of the common injury.’

fhe Congress has, in Section 101 of the National Environ-

mental Policy Act of 1969,’ recognized the special role of

environmental groups by declaring that “‘it is the continuing

policy of the Federal Government” to cooperate with “‘con-

cerned * * * private organizations” in furthering the objectives

of the Act. And the Council on Environmental Quality, in

a recent statement of federal environmental policy, has

made clear its “support for the elimination of procedural

obstacles that bar citizens from litigating the merits of

environ.nental controversies over Government action.’’® The

Council accordingly “subscribes to the brcadened concept

of standing to sue expressed in judicial decisions such as

that of the Second Circuit” in Citizens Committee,® a case

we discuss later, and it lias expressly endorsed the following

resolution of its Legal Advisory Committee:

“Where an organization or group of citizens devoted

to, or with a demonstrated interest in environmental

protection asserts a claim against an agency of the

Government in reliance on the provisions of the

National Environmental Policy Act, or of other legi-

slation designed to protect the environment, the

interposition by the Government of the defense of

lack of standing is inconsistent with federal environ-

(9th Cir. 1971) (concurring opinion), cert. denied, 39 U.S.L.W. 3455

(April 19, 1971).

"Pub. L. 91-190, 83 Stat. 852, 42 US.C.A. § 4331 (Supp. 1971).

Statement of Timothy; Atkeson, General Counsel, Council on

Environmental Quality, ia Hearings on S. 1032 Before the Subcom-

mittee on the Environm-nt of the Senate Commerce Committee, 92d

Cong., Ist Sess. (Anri! 15, 1971), reprinted at 1 BNA Env. Rep. 1459

(No. 52, April 23, 1971).

*Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97

(2d Cir.), cert. denied, 400 U.S. 949 (1970).

PePS LAPIS rete

Yr rrr eens renceee come Sn SSRITO SDI rb ee aL RR met ty Dae

mental policy, as exemplified in the National Environ-

mental Policy Act and in other legislation.’’!°

If, despite this unequivocal statement, the government

persists in its challenge to the Sierra Club’s standing in this

case, we thihk that its arguments, judged according to the

criteria established by this Court, must faii. The Court in

Data Processing! and Barlow!? established a three-pronged

test for standing: (1) whether the plaintiff has a stake in the

outcome of the controversy, (2) whether its interests are

within the zone of interests to be protected or regulated by

the statute in question, and (3) whether judicial review has

been precluded.

The ‘‘zone of interests’ and reviewability prongs are, in

the context of this case, relatively insignificant. It is per-

fectly evident that the relevant statutes create a zone of

protected interests that embraces the interests asserted by

the Sierra Club in the conservation and sound maintenance

of public lands. And, in view of this Court’s recent deci-

sions concerning reviewability, we can foresee no reasonable

argument. that the actions of the federal officials here

challenged are either immunized by statute from judicial

review or committed by law to agency discretion.

The only live issue, in our view, concerns the Sierra Club’s

stake in the outcome. While this Court has not previously

considered what 2!egations may be necessary to demonstrate

a sufficient stake in the outcome for an organization like

the Sierra Club, which alleges no private economic harm but

which 1sserts instead the public interest in environmental

protection, it has clearly identified the objective of

the standing requirement—to ensure that the dispute is

10Statement of Timothy Atkeson, supra note 8.

\Yssociaticn of Data Processing Service Organizations, Inc. v.

Camp. 397 U.S. 150 (1970).

12 Barlow y. Collins, 397 U.S. 159 (1970).

SST ASL IO RIOR SI GAN PE TOI 8 9 LE ‘

presented in an adversary context. In our view that objec-

tive would be fully served by the rules we propose, rules

that have been applied successfully for years by the lower

federal courts.

First, an organization’s own interests, as demonstrated by

_ its activities and conduct, may be injured sufficiently by

government actions that disregard those interests to ensure

a stake in the outcome. Second, regardless of whether an

organization has suffered injury to its interests, it may serve

as representative of the interests cf those of its members

who themselves are affected by the challenged action.

Third, irrespective of injury to its interests or to its mem-

bers, an organization may in appropriate circumstances serve

as a responsible and representative spokesman for the

interests either of a large class of persons who are affected

or, where tite effects of the action are sufficiently general-

ized, of the public at large. While these are meant to be

alternative standards—that is, an organization may have

standing if it meets any one of the three—we believe the

Sierra Club in the context of this case satisfies each.

The court below, however, applied a far more restrictive

standard—namely, that an organization may sue only upon

allegations of tangible injury to its property, its status, or

its members. This standard we view as contrary to both

sound precedent and wise policy, and we urge this Court to

reject it. It seems to us incontestable that an environmental

organization can present in an adversary context a dispute

concerning the use of natural resources, even where its own

property is not to be injured. We believe the rules developed

by the lower courts provide excellent guidelines—meriting

this court’s approval—for determining whether, in a specific

case, the particular organizationa! complainant in fact has a

stake in the outcome.

Apart from standing, we address only one other issue in

this brief: whether the Secretary of the Interior »cted

within the scope of his statutory authority when he

approved the use of a corridor through Sequoia National

Park for construction of the Mineral King Highway—a high-

speed, high-volume access route to a proposed recreationai

development located beyond the park boundaries. The |

limits of the Secretary’s authority are fixed by statutes

requiring that the national parks be administered for the

purposes of preserving them and providing for their enjoy-

ment by the public. Approval of the road was unauthorized

unless the Secretary reasonably considered that its construc-

tion was justifiable in terms of these purposes. In view of

the known ‘acts—that construction would have a damaging

ecological impact, that Sequoia National Park is already an

area of intensive public use, that handling automobile traffic

is a growing problem in the national parks generally, and

that the Director of the National Par. Service himself seems

to believe that building high-speed roads is not the way to

make park experiences available to the public—it is doubtful

whether the Secretary’s action could be regarded as reason-

able.

But our principal contention is not that the Secretary

unreasonably concluded that the Mineral King Highway

would serve a park purpose. Rather it is that, so far as the

record discloses, he never in fact concluded that a park pur-

pose would be served, or even was aware of the limitations

on his statutory authority that prevent him from subordi-

nating park interests to other interests—here the promotion

of a commercial enterprise outside the park—that appear to

him to be of paramount public iinportance. Not only is the

record silent, and therefore inadequate, on these points, but

the post hoc rationalizations of the Secretary’s action that

the record does contain indicate that he misconstrued his

statutory authority to the extent he may have thought

about it at all. Likewise, had the Secretary taken account

of the considerations properly relevant to his decision to

approve construction of the road—and here again the record

fails to disclose what was taken into account and how its

relevance was appraised—there is ample reason to believe

that a park routing for the Mineral King Highway would

have been rejected.

a i

ARGUMENT

STANDING

In considering a matter as complex 73 standing,’* one

must have clearly in mind the sources of the doctrine and

the policies that underlie it. In the case of standing, there

are two distinct sources for the various rules.

First, standing as an aspect of justiciability is grounded in

Article III of the Constitution, which limits the judicial

power of federal courts to “cases” and “controversies.”

Flast v. Cohen, 392 U.S. 83, 94-95 (1968); see Association

of Data Processing Service Organizations, Inc. v. Camp, 397

U.S. 150, 151-152 (1970). In this respect, an inquiry as to

standing focuses on the party seeking to assert a claim

rather than on the issues he seeks to raise, so that “when

standing is placed in issue in a case, the question is whether

the person whose standing is challenged is a proper party to

request an adjudication of a particular issue * * *.” Fast,

392 U.S. at 99-100. This requirement of a “proper party”

is thought necessary to ensure that the dispute sought to be

adjudicated ‘‘will be presented in an adversary context and

in a form historically viewed as capable of judicial resolu-

tion.” /d. at 101. In considering whether a particular com-

plainant is in fact a proper party, courts look to the

complaint for allegations supporting the party’s “personal

stake in the outcome of the controversy.” Baker v. Carr,

369 U.S. 186, 204 (1962): Flast, 392 U.S. at 101 ; Barlow vy.

Collins, 397 U.S. 159, 164 (1970). The principal issue to

which we address ourselves in this section of our brief con-

cerns the kind of allegations that are necessary to

demonstrate such a stake in the outcome.

i? “Standing has been called one of ‘the most amorphous [concepts]

in the entire domain of public law.’” Flast v. Cohen, 392 U.S. 83,

99 (1968).

AL Diet GLAD NARS. Say dels

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In addition to the constitutional question, standing

involves statutory limitations and policy considerations.

Thus, the Congress can, within the confines of Article III,

restrict or broaden access to the federal courts in terms

of either parties or issues. See Data Processing, 397 U.S. at

154. In the absence of statutory command, the Court may

apply a “rule of self-restraint’”’ formulated for its own

governance. /d.; Barrows v. Jackson, 346 U.S. 249, 255

(1953). An example of such a rule is that even one who

has a stake in the outcome may not ordinarily challenge the

constitutionality of state action by invoking the rights of

others. /d.

The question presented by this case is whether an estab-

lished national organization, founded and operated for the

purpose of promoting the conservation and sound mainten-

ance of the nation’s natural resources, must be denied, for

either constitutional or other reasons, standing to challenge

allegedly unlawful administrative action affecting the public

lands. We show in the following pages that, judged accord-

ing to the standards that have bsen established by this Court

and applied in the lower federa| courts, such an organization

_may, and in the circumstances of this case does, have stand-

ing to sue.

A. Framing the Issue

We start by describing the analytic framework established

by this Court for the consideration of standing questions,

and then, in order to define the issue in terms of that frame-

work, we recount the treatment given the Sierra Club’s alle-

gations by the courts below.

1. The prevailing test. This Court has in several recent

decisions articulated a threefold test for standing to sue in

the federal courts. The first question is the constitutional

one—whether the plaintiff has “the personal stake and

interest that impart the concrete adverseness required by

Article III.” Barlow, 397 U.S. at 164. This stake-in-the-

outcome test is satisfied by an allegation that “‘the chal-

lenged action has caused [the complainant] * * * injury in

fact, economic or otherwise,” Data Processing, 397 U.S. at

152, although, as we show below, there are other ways to

demonstrate a stake in the outcome.

The second and third tests are grounded in statutory law.

They are ‘whether the interest sought to be protected by

the complainant is arguably within the zone of interests to

be protected or regulated by the statute or constitutional

guarantee in question,” Data Processing, 397 U.S. at 153,

and “whether judicial review * * * has been precluded,” id.

at 156. Both tests are, at least in the context of adminis-

trative action, evidently rooted in the provisions of the

Administrative Procedure Act. Thus, the zone-of-interests

standard derives from 5 U.S.C. § 702, which limits judicial

review to persons “‘adversely affected or aggrieved by agency

action within the meaning of a relevant statute * * *. And

the reviewability test has its source in 5 U.S.C. $701 (a),

which authorizes judicial review of administrative determina-

tions “except to -ne extent that—(1) statutes preclude judi-

cial review; or (2) agency action is committed to agency

discreticn by law.”

2. The Sierra Club’s allegations. The Sierra Club in its

complaint (A. 3-12),!* which antedated the Data Processing

and Barlow decisions, alleged: (a) that it is a non-profit

corporation organized and Operating under the laws of the

State of California with a national membership of 78,000

and a San Francisco Bay area membership of 27,000:

(b) that “for many years the Sierra Club by its activities

and conduct has exhibited a special interest in the conser-

vation and the sound maintenance of the national parks,

game refuges and forests of the country, regularly serving as

a responsible representative of persons similarly interested”’;

“7 ‘Oughout this brief our references to the Appendix are indi-

cated by “A”. Materials that are part of the record but are not

printed in the Appendix are indicated by “R”.

—_ et

tin nha cs RAD EOS, ste

;

——

and conservation of the resources of the Sierra Nevada

Mountains; (d) that it would be aggrieved, and its ‘“‘inter-

ésts would be vitally affected,’ by the acts of the

defendants; and (e) that the defendants would, by their past

and threatened acts relating to the proposed Mineral King

project, exceed their statutory authority.

3. The courts below. a. The District Court’s decision

upholding the Sierra Club’s standing and granting preliminary

relief was rendered in an unreported opinion which, as to

the standing issue, stated simply: “Sierra Club, a non-profit

Califernia corporation, organized and existing for the pur-

poses described in its complaint * * *, may be held to be

sufficiently aggrieved to have standing as a plaintiff herein”

~ “A. 197).

b. Although the briefs to the Court of Appeals were

addressed in large part to the old “‘legal interest’’ test of

standing,'* a test that was thereafter expressly abandoned in

Data Processing, 397 U.S. at 1583 & n.1, and although the

opinion of the Court of Appeals bore traces of “‘legal inter-

est” terminology,'® the court nevertheless endeavored to

'5See, e.g., Brief for Appellees, pp. 8-15. The “legal interest” test

differs from the “zone of interests” test in that the former required

not merely that the complainant’s interests be arguably protected but

that he in fact had “a legal right—one of property. one arising out of

contract, one protected against tortious invasion, o. one founded ona

statute which confers a privilege.” Tennessee Elec. Power Co. v.

TVA, 306 U.S. 118, 137-38 (1939).

16 Thus, the court implied that the Sierra Club would be permitted

to sue if it alleged damage to “an interest * * * entitled to legal pro-

tection * * *” (433 F.2d at 28), or if it could point to “‘an element of

legal wrong being inflicted upon” it (id. at 32). The cases quoted and

evidently relied upon were likewise cast from the discarded legal

interest standard. The court quoted extensively the “legally protected

interest” and “legal wrong” language from Jenkins v. McKeithen, 395

U.S. 411, 423 (1969) (opinion of Mr. Justice Marshall); National Ass'n

of Securities Dealers, Inc. v. SEC, 420 F.2d 83, 104 n.5 (D.C. Cir.

1969) (Burger, J.,. concurring), vacated, 39 U.S.L.W. 4406 (U.S., April

5, 1971); Associated Industries, Inc. v. Ickes, 134 F.2d 694, 700

(2d Cir.), vacated as moot, 320 U.S. 707 (1943).

apply to the Sierra Club the three-pronged test of Data

Processing -- stake-in-the-outcome, zone-of-interests, and

reviewabii‘y. With respect to stake-in-the-outcome, in the

court’s view the only harm alleged ty the Sierra Club was

that “the proposed course of action indicated by the Secre- &

taries does not please its officers.and board of directors and F

through them all or a substantial number of its members.”

433 F.2d at 30. This the court considered insufficient:

“We do not believe such club concern without a

showing of more direct interest can constitute stand-

ing in the legal sense sufficient to Challenge the

exercise of responsibilities on behalf of all the citi-

zens by two cabinet level officials of the government

acting under Congressional and Constitutional

authority.”’ Jd.

In order to satisfy the court’s requirement of “direct inter-

est,” the Sierra Club would have been required to allege

that “its property will be damaged, that its organization o1

members will be endangered or that its Status will be

threatened.” Jd. ~_.

With respect to the zone-of-interests standard, the Ninth

Circuit, while viewing this Court’s language as “‘not entirely

clear,” considered that “it does not establish a test separate

and apart from or in addition to the [stake-in-the-outcome]

test.” Jd. at 31. Accordingly, it did not address itself

separately to the zone-of-interests inquiry. It was similarly

silent with respect to reviewability.

We demonstrate in the following sections that the Court

of Appeals’ application of the stake-in-the-outcome test was

both contrary to sound precedent and grounded in unwise

policy considerations, that the Sierra Club’s interests are

Clearly within the zone of interests to be protected by the

Statutes in question, and that the administrative actions

challenged by the Sierra Club are plainly reviewable.!7

We recognize that some commentators inave Suggested that the

Data Processing standards be reconsidered or modified so as further

to expand access to the courts. E’g., K. C. Davis, Administrative Law

B. Stake in the Outcome

Whether the Sierra Club has alleged a stake in the outcome

of this case sufficient to survive the constitutional challenge

to its standing depends upon the circumstances in which

organizations and associations may sue in the federal courts.

Although this Court has not had the occasion to consider

what allegations might be required to demonstrate the stake

of groups like the Sierrra Club (or the Environmental Defense

Fund), which seek to litigate issues of importance to the

general public, it has laid a solid founda‘ion for such con-

sideration, upon which the lower courts have erected an

equally sold structure.

Flast made clear that the function of the stake-in-the-

outcome standard is to limit the activity of federal courts

to the resolution of disputes between parties with adverse

interests. This, then, is the goal that must be served in |

applying the stake-in-the-outcome test to ‘‘public-interest”

organizations. The position of the court below—that such

an organization can have no stake unless it alleges some form

of traditional private harm, such as property damage—seems

to us unnecessarily restrictive precisely because it excludes

from the courts those whose presence may well be the best

essurance of adverseness. To be sure, not all groups in all

circumstances are proper parties to request an adjudication

of a particular issue. But in order to sort the proper from

the improper, one must first recognize that some organiza-

tions can have a sufficient stake in the outcome even with-

out alleging some private economic harm.

In our view there are three additional circumstances in

which an association can demonstrat. a sufficient stake for

Treatise—1970 Supplement, 8 22.00-22.00-5, at 702-27 (1971); Jaffe,

Standing Again, 84 Harv. L. Rev. 633 (1971). And see the dissenting

opinion of Mr. Justice Harlan in /nvestment Company Institute v.

Camp, 39 U.S.L.W. 4406, 4413 (U.S., April 5, 1971). We adhere to

the Data Processing framework, however, because we do not consider

it necessary to depart from its standards in order to sustain the peti-

tioner’s standing in this case.

. C4

Sof

‘

“4

standing purposes. First, the organization’s own established

interests may be injured in fact by the Challenged actions.

Second, the organization may be the authorized representa-

tive of the interest of its members, who are themselves

among the class of persons injured or zffected by the

challenged actions. Third, the organization may serve as a

responsible and representative spokesman fcr the interests

either of the affected public or, if the injury is more gen-

eralized, of the public at large. The courts that have

considered the standing of “‘public-interest” organizations

have, with near unanimity, applied one or more of these

standards. That this approach has neither opened the door

to hundreds of obstructive litigants nor fostered collusive or

hypothetical lawsuits speaks persuasively to its soundness.

We set forth below the detail of each alternative and

explain why in our view the Sierra Club in the circum-

stances of this case satisfies the requirements of each. We

conclude by commenting briefly upon the policy considera-

tions occasionally cited in support of a restrictive rule that

would bar “‘public-interest”’ groups from the federal courts.

1. Injury to the organization’s established interests. The

traditional means of demonstrating a sufficient stake in the

outcome has been for the complainant to allege that he has

suffered “injury in fact.” E.g, Investment Company Insti-

tute v. Camp, 39 U.S.L.W. at 4406-07: Data Processing, 397

U.S. at 152; Flast, 392 U-S. at 106; Baker v. Carr, 369

U.S. at 208; Barrows v. Jackson, 346 U.S. at 256. Courts

have, of course, always taken cognizance of direct injury to

the financial or proprietary interests of Organizations, and

have seldom had difficulty finding a sufficient stake in the

outcome even where the injury was indirect or the interest

non-economic.!® This was recognized explicitly in Data

'*NAACP v. Button, 371 U.S. 415, 428 (1963) (organization had

standing to challenge a statute that would have curtailed its activities

in sponsoring and encouraging litigation in civil rights cases); Pierce

v. Society of Sisters, 268 U.S. 510, 531 (1925) (private school had

standing to challenge a state statute requiring all parents to send

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Processing, which left no doubt that the injury sufficient for

purposes of standing may affect “‘aesthetic, conservational,

and recreational’ as well as economic values.”” 397 U.S. at

154.!9

This Court has not to our knowledge expressly considered

the problem presented here—whether an vrganization alleg-

ing that its established non-economic interests are adversely

affected by agency action (and not that it will suffer finan-

cial damage or that its activities will be directly curtailed)

is sufficiently injured to satisfy the stake-in-the-outcome

test. But we cannot, by reference to the defined objectives

of the standing requirement, see any justification for the

rule adopted by the Ninth Circuit that such injury is neces-

sarily insufficient. To the contrary, all indications are that

if the harm ensures a truly adverse proceeding it is enough,

even if it affects non-economic values. That those values are

held by an association rather than by an individual should,

their children to public schools, since “enforcement of the staiute |

would seriously impair, perhaps destroy, the profitable features of

[the school’s] * * * business and greatly diminish the value of their

property”); NAACP y. Alabama ex rel. Patterson, 357 U.S. 449, 459

(1958) (petitioner had standing to contest a state court order requiring

production of its membership lists, partly because the association

itself, if compelled to produce the lists, might well suffer indirect

financial injury “through diminished financial support and member-

ship’’).

The court has, of course, frequently conferred standing upon

individuals whose injury was non-economic. Thus, for example,

parents of children attending public schools had standing in Zorach v.

Clauson, 343 U.S. 306 (1952), to challenge the constitutionality of

New York’s “released time” program. The alleged impairment of

plaintiffs’ votes by malapportionment of a state legislature was

injury enough in Baker v. Carr, 369 U.S. at 207-08. And in Henderson

v. United States, 339 U.S. 817, 823 (1950), a passenger was entitled

to contest the legality of Interstate Commerce Commission rules

permitting racial segregation in railroad dining cars.

'9The opinion also states as a general proposition that “standing

may stem from [non-economic harm] * * * as well as from the

economic injury on which petitioner relies here.” 397 U.S. at 154.

we believe, make no difference. A court must, of course,

be satisfied in the case of an association that its values are

deeply held and not manufactured for the purposes of liti-

gation, but that can be accomplished by requiring the

organization to show, by reference to its activities and con-

duct, that its interests are established and demonstrated.

A number of lower courts have taken precisely that

approach, including perhaps most prominently the Second

Circuit in its Scenic Hudson*® decision, which has served as

the cutting edge of the developments in this area and which

was cited with evident approval by this Court in Data

Processing, 397 U.S. at 154. A brief survey of these cases

will illustrate the factors that have been viewed as significant

in determining whether a group’s interests are sufficiently

demonstrated.

In the groundbreaking Scenic Hudson case an association

of “conservationist organizations” and three affected towns

sought review of an FPC order granting approval of a

pumped storage hydroelectric project on the Hudson River.

The FPC contended that these organizations had no stand-

ing to obtain review because they made “‘no claim of any

personal economic injury resulting from the Commission’s

action.” 354 F.2d at 615. The Second Circuit, after noting

that the project was to be located “in an area of unique

beauty and major historical significance” and that the Fed-

eral Power Act requires the FPC to take account of “the

aesthetic, conservational, and recreational aspects of power

development,” held that ‘‘those who by their activities and

conduct have exhibited a special interest in [aesthetic, con-

servational, and recreational values] * * *, must be held to

be included in the class of ‘aggrieved’ parties” under the

Federal Power Act. /d. at 613, 616.

Though the court remarked that one of Scenic Hudson’s

constituent organizations would have suffered a traditional

20Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608

(2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).

economic loss as well (inundation of its trailways), the

thrust of the opinion was not thereby weakened. Indeed,

its strength became almost immediately apparent. The

Second Circuit’s view—that a demonstrated interest in con-

servation may be sufficiently injured for standing purposes

by agency action that infringes that interest—was extended

beyond the confines of the Power Act in Road Review

League v. Boyd, 270 F.Supp. 650 (S.D. N.Y. 1967). The

court held that a town, a local civic association of residents,

and a “non-profit association which concerns itself with

community problems, primarily those involving the location

of highways” [270 F.Supp. at 652] were “‘‘aggrieved’ by

agency action which allegedly has disregarded their interests”

[id. at 661]—namely, the Federal Highway Administrator’s

approval under the Federal Highways Act of a route align-

ment for an interstate highway.

The District Court recognized that its holding amplified

Scenic Hudson in two important respects: (1) The Federal

Highways Act, unlike the Power Act, had no special ‘‘per-

sons aggrieved”’ provision. As to this, the court could ‘“‘see

no reason why the word ‘aggrieved’ should have a different

meaning in the Administrat.ve Procedure Act from the

meaning given to it under the Federal Power Act.” /d. (2)

The plaintiffs in Road Review League had brought an

independent court action, whereas the petitioners in Scenic

Hudson had sought review of an administrative decision in

a proceeding to which they had been parties. As to this

distinction, the court observed that the plaintiffs had actively -

participated over the course of four years in informal

attempts to secure an administrative determination favorable

to their interest. The court thus stated that if its decision

was an extension of Scenic Hudson “‘it is an extension which

I believe to be warranted by the rationale of that decision.”

Id.

The Second Circuit itself, in its most recent treatment of

the issue, expressly approved the Road Review League read-

ing of Scenic Hudson. Citizens Committee for Hudson

Valley v. Volpe, 425 F.2d 97, 104 (2d Cir.), cert. denied,

400 U.S. 949 (1970). In Citizens Committee, the U-S.

Army Corps of Engineers had issued a permit authorizing

New York State’s Department of Transportation to effect

the dredging and filling of a portion of a six-lane highway.

Suit was brought by the Sierra Club, the Citizens Committee

(an unincorporated association of citizens who resided near

the proposed highway), and the Village of Tarrytown

(through which the highway would pass) to enjoin the issu-

ance of any permits or the commencement of any construc-

tion in the absence of congression:.i consent and approval of

the Secretary of Transportation as required by the Rivers

and Harbors Act and the Department of Transportation Act.

The District Court granted the relief sought, and the defend-

ants on appeal raised the issue of standing.

Dealing first with the Sierra Club and the Citizens Com-

mittee, the Court of Appeals observed that they

“made no claim that the proposed Expressway or the

issuance of the dredge and fill permit threatened any

direct personal or economic harm to them. Instead

they asserted the interest of the public in the natural

resources, scenic beauty and historical value of the

area immediately threatened with drastic alteration,

claiming that they were ‘aggrieved’ when the Corps

acted adversely to the public interest.” 425 F.2d at

102.

Both the Citizens Committee and the Sierra Club, which had

“a history of involvement in the preservation of national

scenic and recreational resources,” had established the

strength of their interest in conservation and the genuineness

of their concern with local natural resources by vigorously

presenting their views to state and federal officials. On

these facts the court considered that the organizations would

be iniured by the challenged actions, which allegedly

infringed their interests.

“These plaintiffs, alleging that the Corps and the Sec-

retary of the Army ignored their environmental con-

cerns are ‘aggrieved’ * * *.” Jd at 104.

PREF: +

Te Ssee

This view is by no means limited to the Second Circuit.

In West Virginia Highlands Conservancy v. Island Creek Coal

Co., 2 BNA Env. Rep. Cas. 1422 (4th Cir. 1971), the

plaintiff, “a non-profit membership corporation dedicated

to preserving natural, scenic and historic areas in the West

Virginia Highlands,” sought an injunction against mining and

timber-cutting in part of the Monongahela National Forest.

The Fourth Circuit, affirming the District Court’s grant of

a preliminary injunction, took note of the Conservancy’s

modest size (200 members) but intensive activity and vital

interest in the Forest and in the particular area at issue (as -

reflected in its newsletters, field trips, hikes, meetings, and

scientific studies). It held with respect to standing that the

Conservancy’s aesthetic, conservational, and recreational

interests would be injured by the mining and timber-cutting

activities.

In the recent case of /zaak Walton League v. St. Clair, 313

F.Supp. 1312 (D.Minn. 1970), the District Court was faced

with a nearly identical issue. The plaintiff, an environmen-

tal organization with “a long history of activity in conserva-

tion matters and natura! resource preservation,” sought to

enjoin federal approval of drilling and exploring operations

for minerals in a portion of the National Wilderness Preser-

vation System in Minnesota. In rejecting the defendants’

contention that the Izaak Walton League lacked standing,

the court reasoned that, since the League had “‘been active

for many years in urging congressional and other legislative

action” and had been directly and deeply involved in secur-

ing congressional establishment of the wilderness lands in

question, there could be no doubt “that plaintiff actively

will pursue in an adversary way the prosecution of this suit

*** ” 313 F.Supp. at 1316. Moreover, since the League

“is not a ‘johnny-come-lately’ or an ad hoc organization and

its interest in the wilderness movement is continuing, basic

and deep,” it is injured in fact by action that disregards its

aesthetic, conservational, and recreational interests, id. at

1317, notwithstanding that it owns no land and asserts no

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claim of mineral rights in the wilderness area, and that it has

no economic interest in the outcome of the suit, id. at 1316.

Other courts, with the exception of the Ninth Circuit, are

in accord with this approach. See, é.g., Environmental

Defense Fund, Inc. v. Corps of Engineers, 2 BNA Env. Rep.

Cas. 1260, 1280-84 (E.D. Ark. 1971); Crowther y. Seaborg,

312 F.Supp. 1205, 1216 (D. Colo. 1970); Parker vy. United

States, 307 F.Supp. 685, 687 (D. Colo. 1969); Delaware y.

Pennsylvania N.Y. Central Transp. Co., 2 BNA Env. Rep.

Cas. 1355, 1358-60 (D. Del. 1971); Environmental Defense

Fund, Inc. v. Corps of Engineers, 2 BNA Env. Rep. Cas. \

1173, 1174 (D.D.C. 1971); Pennsylvania Environmental

Council, Inc. v. Bartlett, 315 F.Supp. 238, 245 (M.D. Pa.

1970). Indeed, until this case was decided by the Ninth

Circuit and followed in Alan.eda Conservation Ass’n y.

California, 437 F.2d 1087 (9th Cir.), cert. denied, 39

U.S.L.W. 3455 (April 19, 1971), that Circuit’s decision in

State of Washington Dep’t of Game vy. FPC, 207 F.2d 391

(1953), cert. denied, 347 U.S. 936 (1954), was a leading

case holding that environmental Organizations may be

aggrieved by action that disregards their interests.2!

The Washington Game case and the more recent Scenic

Hudson line of decisions represent a sound approach to

organizational standing. They recognize that organizations

can have a vital stake in the outcome of a controversy

involving their interests and they focus upon whether those

interests are sufficiently established and demonstrated to

ensure that the dispute “will be presented in an adversary

context.” Flast, 392 U.S. at 101. The considerations that

enter into that judgment may include the age of the organi-

zation, its resources, the consistency of its expressed

2! The Wasnington State Sportsmen’s Council, together with two

State agencies, were each held to be aggrieved by an FPC approval of

dam construction on the Cowlitz River, because the project would

“destroy fish which they, among others, are interested in protecting.”

207 F.2d at 395. The case was relied upon by the Second Circuit in

Scenic Hudson, 354 F.2d at 616.

‘ 24

interests, its participation in the formal or informal

administrative proceedings that led to the dispute, its activity

in or near the lands involved, its vigorous participation in

other controversies of a similar nature, and any other con-

duct that reflects the group’s commitment to its asserted

interests. These factors are, of course, appropriately

assessed by the District Court at the time the issue is raised

or by the reviewing court upon the facts of record. If that

assessment persuades the court that “‘the question will be

framed with the necessary specificity; that the issues will be

contested with the necessary adverseness and that the litiga-

tion will be pursued with the necessary vigor”’ [id. at 106],

the plaintiff should not be refused access to the courts

because of an artificial and restrictive requirement that there

be some more “direct” or “‘personal”’ injury.

eh LOI LEGER SEO REBT a on

Ss FN

The Ninth Circuit applied precisely such a restrictive test

and concluded that the Sierra Club—one of the nation’s

oldest and largest conservation groups, one of whose tradi-

tional concerns has been with the lands of the Sierra Nevada

Mountains—‘“‘does not allege that it is ‘aggrieved’ or that it

is ‘adversely affected’ within the rules of standing.” 433 F.

2d at 32. What is meant by this is not entirely clear from |

the opinion. On the one hand, the court stated that the

Sierra Club would have standing only if its property were

damaged or its status threatened. /d. at 30. On the other

hand, it suggested, by way of distinguishing the Second Cir-

cuit’s decision in Citizens Committee, that the case would

have been a different one had the plaintiff becn a “i. al

conservationist organization made up of local residents and

users of the area affected * * *.” Jd. at 33. We doubt,

however, that the latter suggestion represents the court’s

holding,”? and our doubt has been confirmed by the Ninth

;

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22We base this view on two considerations. First, if the opinion

meant to imply that the Sierra Club is not precisely such a “local”

organization, it would be founded on a factual misconception. With

respect to the Sierra Nevadas, we are aware of no more appropriate

“local” group made up of persons who use and enjoy the area than

the Sierra Club. Second, if it meant to invoke a principle of formality

Circuit itself in an opinion written by the same judge some

four months after the decision in Sierra Club.

In Alameda Conservation Ass’n y. California, 437 F.2d

1087 (1971), cert. denied, 39 U.S.L.W. 3455 ‘April 19, 1971),

the plaintiff was, so far as one can tell from the opinions, pre-

cisely the kind of local group referred to in Sierra Club. It

was made up of users of the San Francisco Bay and residents

of the area, who aileged that the Challenged actions would

destroy fisheries and wildlife from which they personally

benefited, and would seriously harm the Bay’s flushin:

characteristics causing deleterious climatic effects. The

organization alleged that its purpose was to protect the

public interest in the waters of San Francisco Bay. The

court, though it allowed certain individual plaintiffs to sue,

held that the organization lacked standing because “‘it is not

hurt in any practical way which entitlés it to call upon the

courts for redress or protection.” 437 F.2d at 1090. As in

Sierra Club, the group had not asserted that “any of its

rights or properties are being infringed.” Jd. at 1089. The

rationale of the court’s view, as stated concisely in two par-

agraphs, is that organizations qua organizations are not

proper parties to raise “public interest” issues because that

would be destructive of good government:

“Standing is not established by suit initiated by

this association simply because it has as one of its

purposes the protection of the ‘public interest’ in

the waters of the San Francisco Bay. However well .

intentioned the members may be, they may not by

uniting create for themselves a super-administrative

agency or a parens patriae official status with the

capability of Over-seeing and of challenging the

that would exclude the Sierra Club not for lack of injury but for

neglect formally to plead the details of its members’ outdoor activities,

the obviously appropriate course would have been a form of remand

that would have’ permitted correction of the technical omission by

amendment to the complaint. Certainly there could be no purpose

in preparing a lengthy opinion on the silent assumption that the error

could not be remedied.

—_— =

——————

SBE Pee

action of the appointed and elected officials of the

state government. Although recent decisions have

considerably broadened the concept of standing, we

do not find that they go this far.

“Were it otherwise the various clubs, political, eco-

nomic, and social now or yet to be organized, could

wreak havoc with the administration of government,

both federal and state. There are other forums

where their voices and their views may be effectively

presented, but to have standing to submit a ‘case or

controversy’ to a federal court, something more must

be shown.” /d. at 1090.

We will have more to say later about this view. It is enough

for now to note that the Court of Appeals’ holding in

Sierra Club evidently rests on an antagonism to organiza-

tional litigants, not on a factual judgment that the Sierra

Club was not a “‘local’’ organization.

We have already shown that the court’s restrictive view

of injury cannot be squared with its own 1953 ruling in

Washington Game or with recent authority from other

circuits. It should also be clear that, had the Sierra Club’s

allegations been measured against the standards established

by that recent authority, sufficient injury would have been

shown. The Club asserted that it has an established and

enduring interest in conservation of public lands generally

and a special interest in the Sierra Nevada Mountains (two

propositions that are beyond factual dispute) and that its

interests would be vitally affected by the actions chalienged.

Under Scenic Hudson and its progeny, this would have been

enough to satisfy the standard of injury in fact.

2. The organization as representative of its members’

interests. Having shown that an environmental organization

can demonstrate its stake in the outcome of a controversy

by showing that its established interests have been contra-

vened, we turn next to an alternative means to the same end.

Regardless of whether an organization has suffered injury

to its established interests, it may serve as the authorized

representative of the interests of its members, all or some

of whom may themselves be aggrieved by the challenged

action. This principle is settled; it has been applied by this

Court in the context of trade association and by cther courts

in a variety of circumstances including environmental litiga-

tion. | | |

In National Motor Freight Traffic Ass’n v. United States,

372 U.S. 246 (1963), the appellants were “associations of

motor carriers, authorized under 49 U.S.C. $5b, [who] * * *

perform significant functions in the administration of the

Interstate Commerce Act * * *.” 372 U.S. at 247. The

District Court had dismissed their action to set aside an ICc

crder both on standing grounds and on the merits, and the

Supreme Court affirmed by per curiam order. In denying a

subsequent petition for rehearing, the Court made clear that

its affirmance was based solely on the merits issue:

“We disagreed that appellants lacked standing to

challenge the Commission’s order in the District

Court.* * * Since individual member carriers of

appellants will be aggrieved by the Commission’s

order, and since appellants are proper representatives

of the interests of their members, appellants have

standing * * *.” Jd. (emphasis added).

The principle that an organization whose members are

aggrieved by administrative action has standing as their

representative to challenge that action is not limited to asso-

ciations “‘authorized”’ under the Interstate Commerce Act.

23See also United States ex rel. Chapman v. FPC, 345 U.S. 153,

156 (1953), which conferred standing on an “association of non-profit

tural electric cooperatives” whose members had “a substantial interest

in the development of low-cost power” at a particular site, and NAACP

v. Alabama ex rel, Patterson, 357 U.S. 449, 458-59 (1958), which

permitted an association to represent its members’ inteiests in resisting

an order requiring disclosure of membership lists. The Court in

NAAC? stated:

“Petitioner is the appropriate party to assert these rights,

because it and its members are in every practical sense

identical. The Association * * *is but the medium through

which its individual members seek to make more effective the

expression of their own views.”

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The District of Columbia Circuit, in a series of decisions,

has conferred standing upon a labor organization representing

the interests of government employees in a work-related dis-

pute, a national trade association for the coin-operated

laundry industry representing the interests of its members

concerning a Labor Department ruling on the applicability

of the Fair Lavor Siandards Act,?* and citizens associations

representing the interests of their members in challenging

the issuance of liquor licenses to neighborhood restaurants.”6

These decisions establish a sound approach to the standing

of organizations asserting their members’ interests. If all or

some of the members?’ are aggrieved by the allegedly

unlawful actions, then an association organized to promote

the interests of its members and serving as an authorized

spokesman for those interests has a sufficient stake in the

outcome of a controversy involving the members’ interests.

The only questions before a district court would thus be

(1) whether some of the members are aggrieved, (2) whether

241 odge 1858, American Federation of Government Employees v.

Paine, 26 Pike & Fischer Ad. L.2d 750, 765-67 (D.C. Cir. 1970)

(opinion of Robinson, J.); United Federation of Postal Clerks v.

Watson, 409 F.2d 462, 469-71 (D.C. Cir.), cert. denied, 396 U.S. 902

(1962). In both cases, the court noted that the organization was

recognized as the exclusive representative of the employees, that it

was charged by Executive Order with representing the interests of all

employees without discrimination, that it had the responsibility for

consulting with the employer on maiters such as those in-issue, and

that the members of the group were themselves affected by the

challenged determination.

25 National Automatic Laundry & Cleaning Council v. Schultz, D.C.

Cir., No. 22,692 (March 31, 1971), slip opinion at 5-8.

26 Citizens Association of Georgetown v. Simonson, 403 F.2d 175,

176, (D.C. Cir. 1968); MacArthur Liquors, Inc. v. Palisades Citizons

Association, 265 F.2d 372, 374 (D.C. Cir. 1959).

27The association’s “standing does not depend on any unanimity

of interest ** *on the part of all its members.” Watson, supra

note 24, at 470 n. 30.

the organization was formed to represent the pertinent

interests of its members, and (3) whether it is the authorized

spokesman for its members’ interests. Where all three ques-

tidns may be answered affirmatively, the organization should

not be denied standing on the ground that it lacks a stake

in the outcome, for it would be “artificial and pointless to

cut off its representative functions at the courthouse door.”

United Federation of Postal Clerks v. Watson, 409 F.2d 462,

470 (D.C. Cir.), cert. denied, 396 U.S. 902 ( 1969). In this

latter repsect, there would ordinarily be no need for an

affirmative showing by the organization that it is authorized

to represent its members’ interests. ‘“[A]bsent evidence to

the contrary, it is reasonable to assuine that the representa-

tive speaks effectively for his constituency.” Jd. Of course,

if doubt is raised either by the opposing party or otherwise

the court may require an appropriate showing of authoriza-

tion or may order that the members be notified of the

action and be given an opportunity to disassociate them-

~ selves from it.?8

The Ninth Circuit in its opinion below did not address

itself directly to the Sierra Club’s capacity to represent the

interests of its members. The court seemed to suggest, how-

ever, by referring to the Club’s failure to allege that its

members would be injured, 433 F.2d at 30, 33, and by dis-

tinguishing other decisions on the ground that they involved

local groups made up of persons affected by the administra-

tive action, id. at 33, that such representative standing might

be appropriate in certain circumstances. If that is the hold-

ing of the decision below—that is, if the Sierra Club was

denied standing because its members were not aggrieved

rather than because it simply could not represent its mem-

bers’ interests—then we believe that the court misapplied a

BNA Env. Rep. Cas. 1260, 1283 (E.D. Ark. 1971), where the court

1 oved the plaintiff environmental organizations “to notify their

members of the pendency of this action and of the legal positions

being taken * * *.”

sound principle to the facts before it. If, on the other hand,

the decision below reflects a disinclination to permit asso-

Ciations to speak as litigants for the interests of their mem-

bers, then we believe the court embraced a principle that

impedes instead of furthering the prime objective of the

stake-in-the-outcome requireinent, namely, ensuring an

adverse presentation. If the interests of aggrieved persons

are in fact properly represented, the representative may be

expected to present the dispute in the same adversary con-

text as would the individuals themselves.

Here as in the case of injury to an organization’s interests,

: the Ninth Circuit’s subsequent opinion in Alameda Conser-

3 vation illuminates the holding of the court below. By citing

‘ this later decision we do not mean to suggest that it is

before this Court for review. Rather, we consider that an

Opinion written so soon after the. one in this case by the

4 same judge and on so similar a point provides some help in

understanding the earlier one. If we are right in that

assumption, it seems clear from Alameda Conservation that

the result would have been no different in this case if the

Sierra Club had alieged injury to its members. The court in

Alameda Conservaiion denied standing to a local organiza-

tion seeking to assert its members’ interests in preserving

San Francisco Bay, where those m mbers’ “health and the

enjoyment of their property [were] materially affected by

the filling of the bay.”” 437 F.2d at 1089. The reasoning

reveals a rather well defined resistance to allowing groups

to assert the interests of their members:

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‘The suggestion is that the corporation may assert its

members rights because it is in the best position to

do so. Moreover, the Association’s ‘nexus’ with its

members gives it standing to appear as their repre-

sentative in federal courts, it is asserted.

““* * * The primary purpose in forming a corpora-

tion in most instances is not to give the corporation

an interest in the member’s real property or other

assets. Just the opposite. It is to be sure that the

member’s property interests will not be jeopardized

by his associations with others. It is not to Create a

nexus but to disconnect the member from the

organization as to property, assets or liability. Nor

does the fact that the corporate purposes are akin

to those of its members make the corporation the

authorized spokesman for the purpose of asserting

its members constitutional rights. * * *If the asso-

ciation here had a recreational operation which it

conducted and which the defendants interfered with,

it could assert it; if its physical surroundings were

made unattractive, this aesthetic infringement weuld

create standing; or if it operated a conservation pro-

gram, an interference with that Operation would

establish standing. The point is that the standing

necessary to assert as a litigant must be that of the

litigant.” Jd. at 1090-9}.

This view is, in our judgment, wholly inconsistent with

the reasoning underlying the decisions of this Court and

other courts that have conferred standing upon organizations

as representatives of their members, and we believe it

should be rejected. If the proper standards were applied,

the Sierra Club surely would qualify as spokesman for the

interests of its members. Indeed, it has been granted stand-

ing in precisely that role by the District Court in Alaska.

Sierra Club v. Hardin, 2 BNA Env. Rep. Cas. 1385, 1389-

93 (1971). That was an action to enjoin the sale of tim-

ber located in the Tongass National Forest brought by the

Sierza Club, the Sitka Conservation Society (an Alaska non-

profit conservation Organization), and an individual who

conducted expeditions into portions of the forest lands

affected. The Sierra Club had 300 to 400 members in

Alaska, 80 of whom lived in the area adjacent to the tim-

ber sale area and enjoyed its scenic and recreational aspects.

Sitka had only 20 to 40 members, all of whom resided in

Sitka more than 28 miles from the sale area but some of

whom on occasion used the sale area for their personal

enjoyment. The District Court, having granted the defend-

ant’s motion to designate the suit a class action, considered

with care the question of standing. It held (1) that “the

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aesthetic, recreational, and conservational interests of local

‘members of both organizations who utilize and enjoy the

sale area are directly affected by the Secretary’s decision,”

(2) that although the members had not formally authorized

the organizations to prosecute the actions in their behalf,

none had asked to be excluded from the class, and (3) that

both organizations therefore “have standing to assert the

* * * interests of local members and users who are directly

affected * * *.” Jd. at 1392.79

There is nothing in the present record to raise any doubt

that the Sierra Club was formed to assert the aesthetic and

conservational interests of its members, or that it is the

authorized representative of those interests. And while the

complaint was silent as to the activities of the Club’s mem-

bers (evidently because it considered its own interests

injured sufficiently for standing under the Scenic Hudson

authorities), it did make reference to the sizable membership

in the San Francisco Bay area and it has on brief to this

Court represented the obvious facts concerning the outdoor

activities of those members.*° Moreover, the affidavit of the

Club’s staff director (A. 25-40) and the attached exhibits

(A. 41-158), all of: which were before the District Court,

evidence the membersiip’s toficern for the future of the

Mineral King Valley. In these circumstances we do not see

that any purpose would be served at this stage by putting

the petitioner to the formality of returning to the District

Court for an opportunity to make a technical amendment

to the pleadings. Even if this were the only ground upon

which to base a conciusiun that the Sierra Club has the

necessary stake in the ov!come, and we do not believe it is,

29 although the case was decided after the Ninth Circuit’s decision

in Alameda Conse.vation, the “istrict Court felt free to reach its

conclusion because, by designat'... the suit a class action, it had fore-

closed the possibility of inconsis'-sit verdicts, a possibility that had

concerned the concurring judge in Alameda Conservation. 2 BNA

Env. Rep. Cas. at 1392.

39Petition for Certiorari, p. 14.

Brewer ss mia 4s eee oe ou

SS a ea a ee ee ie rer pr eT eB

the Court could appropriately treat the facts as if they had

been more fully alleged in the complaint. Thereafter, when

the case returns to the District Court either for trial on the

merits or for entry of final judgment, the petitioner could

seek permission under Rule 15(a) of the Federal Rules of

Civil Procedure to make the conforming amendment.

3. The organization as spokesman for the public interest.

We come now to yet a third way for an organizational liti-

gant to demonstrate its stake in the outcome of a contro-

versy: it may, in appropriate circumstances, serve as a

responsible and representative spokesman for the interests of

the concerned or affected public or, if the harm is suffi-

ciently generalized, of the public at large. This stems from

the recognition that in some situations the injury that flows

from a challenged action, while perhaps directly aggrieving

a few individuals, truly affects a broad class of persons no

one of whom may have sufficient concrete injury to sue on

his own behalf. In those circumstances, the interests of that

broad class may appropriately be represented by an associa-

tion whose demonstrated commitment to the principles

asserted ensure that it will present a concrete dispute in an

adversary context. This is not, of course, to suggest that

there can be only one representative of the public interest, or

even that there can be only one public interest, in a par-

ticular set of circumstances. With respect to the Mineral

King project, for example, there may be several publics

with conflicting interests—such as the conservation public

and the skiing public—and each may have several responsible

spokesmen. So long as the interests are clearly defined and

shared by members of a relatively broad class of the public,

each should’ be entitled to representation by responsible

groups organized to assert those interests.

The starting point for this discussion is the opinion in

Office of Communication of United Church of Christ v.

FCC, 359 F.2d 994 (D.C. Cir. 1966). That case involved

a challenge, on grounds of racially and religiously discrimi-

natory broadcasting policy and excessive commercials, to

the FCC’s renewal of an operating license for television sta-

tion WLBT in Jackson, Mississippi. The petitioners before

the FCC were the Office of Communication of the United

Church of Christ (an instrumentality of the Church, which

is a national denomination with substantial membership in

WLBT’s prime service area), two individual residents of

Mississippi (both of whom were civil rights leaders who

owned television sets and one of whom resided in WLBT’s

prime service area), and the United Church of Christ at Toug-

aloo (a congregation of the United Church of Christ within

WLBT’s area). All had sought to intervene before the Com-

mission in their own behalf and as representatives of all

other television viewers in Mississippi. The FCC denied the

petition to intervene on standing grounds, stating that the

petitioners were unable to show an invasion of a legally

protected interest or an injury that was direct and substan-

tial, and that their injury was therefore no greater than that

of the general public.

Rejecting the FCC’s view that standing requires an asser-

tion of economic injury or electrical interference, the

District of Columbia Circuit held that members of the

listening audience have standing to participate in a license

renewal proceeding:*!

3! The precise issue before the court was whether the petitioners

had standing before the FCC. But the principles discussed in the

opinion are broadly applicable to standing generally and were so under-

stood by the court. It observed (359 F.2d at 1000 n.8) that since

all parties considered the same standards applicable tor standing

before the FCC and standing in the federal courts, “we have * * *

used the cases dealing with standing in the two tribunals inter-

changeably.” Moreover, the court expressly rejected the Commission’s

independent argurnent that the petitioners lacked standing to seek

review of the Commission’s order. /d. at 1007 n.25. A number of

cases that have relied on Church of Christ have noted that the

opinion’s significance is not limited to FCC standing. E.g., Citizens

Committee for Hudson Valley v. Volpe, 425 F.2d 97, 103 n.4 (2d

Cir.), cert. denied, 400 U.S. 949 (1970); National Welfare Rights

Organization v. Finch, 429 F.2d 725, 732-33 (D.C. Cir. 1970).

SP Ee POT IE FEE OLAS: FORBES VILA LY A SOLER EVEL SENAY LAAT DEEL CNEL

“Since the concept of standing is a practical and

functional one designed to insure that only those

with a genuine and legitimate interest can participate

in a proceeding. we can see no reason to exclude

those with such an obvious and acute concern. as

the listening audience. This much seems essential

to insure that the holders of broadcasting licenses

be responsive to the needs of the audience, without

which the broadcaster could not exist.”” 359 F.2d

at 1002.

This participation may be, indeed may preferably be,

through “responsible spokesmen for representative groups

having significant roots in the listening community.” Jd. at

1005. Such “intervention on behalf of the public is not

allowed ‘to press private interests but only to vindicate the

broad public interest * * *.” Jd. at 1006.

The court specifigd two questions that must be answered

before a “public interest” group may be granted standing:

(1) whether the challenged actions are allegedly inconsistent

with the public interest, and (2) whether the complainant

has alleged sufficient facts to show that it is a responsible |

and representative spokesman for that public interest. Jd. 4

at 1005. Although the court in Church of Christ was

reluctant to categorize the sort of groups that appropriately

could serve as such spokesmen, it did suggest some pertinent

guidelines.

“The responsible and representative groups eligible to

intervene cannot here be enumerated or categorized

specifically; such community organizations as civic

associations, professional societies, unions, churches,

and educational institutions or associations might

well be helpful to the Commission. These groups

are found in every community; they usually concern

themseives with a wide range of community problems

and tend to be representatives of broad as distin-

guished from narrow interests, public as distinguished

from private or commercial interests.” Jd.

These groups must hee a legitimate interest in the proceed-

ings in which they seek to be involved, and they must be

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free of a desire only to delay administrative action “for

some private selfish reason.” /d. at 1001.

Church of Christ’s “public” was a reasonably circum-

scribed class of affected persons—‘he listening audience in

WLBT’s area. But, as reflected it the decisions that have

followed Church of Christ’s lead, the court’s reasoning has

obvious application to the full range of “publics,” from a

small and identifiable group of affected persons to the

public at large. In Environmental Defense Fund, Inc. v.

Hardin, 428 F.2d 1093 (D.C. Cir. 1970), for example, “five

organizations engaged in activities relating to the environ-

ment” [428 F.2d at 1095], including EDF and the Sierra

Club, sought to compel the Secretary of Agriculture to issue

notices of cancellation for all ‘economic poison” containing

DDT and to suspend registration for such products pending

~cancellation proceedings. Denying the Secretary’s motion

to dismiss, the Court of Appeals held that the petitioners

had standing, that the Secretary’s refusal to act was a final

order, and that the order was reviewable.

~ With respect to standing the court noted that the injury

complained of was of universal nature.

“The injury alleged by petitioners is the biological

harm to man and to other living things resulting

from the Secretary’s failure to take action which

would restrict the use of DDT inthe environment.”

428 F.2d at 1096.

The organizations, each of whom had “a demonstrated

interest in protecting the environment. from pesticide pollu-

tion” [id. at 1097], were viewed as appropriate spokesmen

for the interests of the affected public, i.e, mankind.

“Tike other consumers, those who ‘consume’—how-

éver unwillingly—the pesticide residues permitted by

the Secretary to accumulate in the environment are

persons ‘aggrieved by agency action within the

meaning of a relevant statute.’ Furthermore, the

consumers’ interest in environmental protection may

properly be represented by a membership association

with an organizational interest in the problem.” Jd.

36 |

The Second Circuit took a similar view in Citizens Com-

mittee for Hudson Valley v: Volpe, 425 F.2d 97, cert.

denied, 400 U.S. 949 (1970), a case we noted above in

connection with injury to an org2nization’s established inter-

ests. The court, evidently in an alternative approach to the

qu.stion of standing, held that the plaintiffs, who included

the Sierra Club and a local conservation group, could

appropriately speak for the interests of the public in preser-

vation of natural resources:

“We hold, therefore, that the public interest in

environmental resources—an interest created by sta-

tutes affecting the issuance of this permit—is a legally

protected interest affording these plaintiffs, as

responsible representatives of the public, standing to

obtain judicial review of agency action alleged to be

in oo of that public interest.” 425 F.2d

at 10S.

Numerous other courts have adopted the Church of Christ

approach. Sée, e.g., National Welfare Rights Organization v.

Finch, 429 F.2d 725, 738-39 (D.C. Cir. 1970) (national and

state welfare recipients organizations have standing to repre-

sent interests of “‘class of welfare recipients”); Environmental

Defense Fund, Inc. v. United States Dep’t of Health, Educa-

tion & Welfare, 428 F.2d 1083, 1085 n.2 (D.C. Cir. 1970)

(EDF accorded standing as representative of general public’s

interest in preservation or restoration of environmental

quality); Environmental Defense Fund, Inggv. Corps of

Engineers, 2 BNA Env. Rep. Cas. 1260 (E.D. Ark. 1971)

(EDF and other environmental groups may represent public

interest‘ in Cossatot river and its environs); Crowther v.

Seaborg, 312 F.Supp. 1205, 1213, 1215-16 (D. Colo. 1970)

(organization may represent interests of ‘‘all those persons

entitled to the protection of their health and all those per-

sons entitled to the full benefit, use and enjoyment of the

natural resources of the State of Colorado”’); Delaware vy.

Pennsylvania N.Y. Central Transp. Co., 2 BNA Env. Rep.

Cas..1355, 1359 (D.Del. 1971) (dictum that plaintiffs

including civic organization may represent “mportant public

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interests of navigation, environment, ecology, and: conserva-

tion”); Powelton Civic Home Owners Ass ’n v. HUD, 284 F.

Supp. 809, 826-27 (E.D.Pa. 1968) (association of residents

have standing to represent interests of displaced homeowners

and of ihe general public in decent housing for American fami-

lies); Pennsylvania Environmental Council, Inc. v. Bartlett,

315. F.Supp. 238, 245 (M.D. Pa. 1970) (environmental

organization may represent the interests of “‘present and

future generations” in conservation of. resources),

The principles of Church of Christ have thus been applied

in a variety of circumstances, including those in which the

challenged action had a direct impact upon certain indivi-

dals, who presumably could have sued on their own behalf,

but also had a generalized effect upon some broader class

of the public. See, e.g., Powelton Civic Home Owners Ass'n

y. HUD, supra. Whether the interests of that broader class

are enough to sustain the standing of a representative group

is a matter best decided by the district court in light of the

facts before it. It should be noted, however, that environ-

mental protection is necessarily a universal concern. Whereas

an action affecting the public lands in California may have

a direct impact upon those who reg’larly use and enjoy the

lands, it may have 2 less direct but no less important impact

upon those who are merely potential users or who_mereiy

“enjoy” the lands though they do not visit *them.??

The decisions that have applied the Church of Christ

principles seem to follow, at least implicitly, the two tests

identified by the District of Columbia Circuit—namely, that

the challenged actions must be prima facie inconsistent with

some public interest and that the organization must show

it is a responsible and representative spokesman for that

interest. The key question, of course, is whether the par-

ticular organization before the court is an appropriate one.

32See Darling and Eichhorn, Man and Nature in the National Parks,

Conservation Foundation, p. 20 (2d ed. 1969), quoted in note 69 infra.

The factors that enter into that determination are similar

to the considerations discussed above in terms of injury to

a group's demonstrated interests. Indeed, many of the cases

that accord standing to organizations do so on both

grounds—that its own interests are injured and that it repre-

sents the concerned public—or on an indistinct mixture of

the two. This is because a group that has a clear commit-

ment to values such as environmental protection is likely

as well to be representative of the interests of the general

public in those values. In addition to the considerations

enumerated above—age, local activities, resources, etc.—the

courts may consider whether the organization has “roots

in the community,” whether it has undertaken the burdens

of administrative or judicial litigation, and whether the

organization may be the only spokesman willing or able to

bring the issues before the court. See Church of Christ,

359 F.2d at 1004-05; Citizens Committee, 425 F.2d at 103.

These standards would surely be met in this case. First,

the actions challenged—the allegedly unlawful approval of a

mammoth ski resort in Sequoia National Forest and of an ac-

cess highway through Sequoia National Park—are, if beyond

_ the authority of federal officials, clearly inconsistent with the

public interest.. While the most directly affected individuals

might be a rather circumscribed class, such as users of the

park or forest, all citizens have a stake in the lawful man-

agement of the nation’s public lands. Second, the Sierra

Club certainly would qualify as a responsible and represen-

tative spokesman for the interests cf either of these publics.

During its 80 years of existence the Club has built a reputa-

tion as an unwavering advocate for conservation and sound

maintenance of our nation’s forests and parks, and has

traditionally shown a special interest in the Sierra Nevada

Mountains.*? Its large, national membership assures it of suf-

ficient resources to present its position vigorously, and gives

33The Sierra Club was, in fact, instrumental in expanding the

boundaries of Sequoia National Park. See Pet. Br., p. 30 n.3.

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it roots in the community of those concerned about our

natural environment. The Club has consistently expressed

its views in formal iitigation as well as through infermal

administrative channels. It has shown, by its active efforts

to block the Mineral King project at the administrative level

(see A. 26) and by its undertaking of this federa: litigation,

that it is willing to shoulder the burdens of challenging at

every step action that it considers unlawful and unwise. Nor

has any more appropriate spokesman come forth. Indeed,

if the Sierra Club cannot represent the interest of the pub-

lic in this case, the issues it seeks to raise may never reach

the attention of the courts.™

The Ninth Circuit did not address itself explicitly to the

Church of Christ tests for standing, except to distinguish

the case evidently on the ground that the public interested

in environmental protection, unlike the public interested in

sound broadcasting policy, is not entitled to representation

by organizations:

34Qne whose standing is as spokesman for the public interest is

commonly called a “‘private attorney general.” The phrase is, howeve.,

of much narrower origin, and we have avoided its use in this section

of our brief in order to minimize confusion. It evidently was coined

by Judge Frank in Associated Industries, Inc. v. Ickes, 134 F.2d 694

(2d Cir.), vacated as moot, 320 U.S. 707 (1943) a case in which an

association of industrial and commercial firms that were substantial

consumers of coal were accorded standing to challenge an administra-

tive order increasing the price of bituminous coal. The issue was not

whether the plaintiff had a stake in the outcome but whether the

Cong;ess had provided for judicial review at the instance of one who

was injured but who could show no “invasion of any private legally

protected substantive interest of his own.” 134 F.2d at 705. The

court held that Congress had made such provision in a statute

authorizing a “person aggrieved” by the administrative determination

to seek review of it. The decision followed this Court’s similar holding

in FCC v. Sanders Bros. Radio Station, 309 U.S. 470 (1940). The

Sanders-Associated Industries “person aggrieved” doctrine, which was

applicable only if there was a “person agerieved”’ statute, has, in

effect, evolved to the Data Processing “zone-of-interests” standard.

397 U.S. at 154.

“The United Church of Christ case, supra, was one

of a number of consumer cases. There the FCC had

denied to petitioners the right to intervene and, as

listeners to the programming of a radio and televi-

sion station, to present their views in a proceeding

to renew the iicense of that station. In that case

as in other consumer cases, the court pointed out

that the listeners were the persons ‘affected’ or

- ‘aggrieved.’ They had standing in the same sense

that coal consumers were found to have standing to

review a minimum price order or that a transit rider

had standing to appeal a fare increase.” 433 F.2d

at 30.

We cannot see that consumers of the scenic beauty and rec-

reational facilities of public lands are less affected by unlaw-

ful actions concerning those lands than are consumers of

television programming, coal, or public transit. See Environ-

mental Defense Fund, Inc. v. Hardin, 428 F.2d at 1096-97.

It seems plain that, if the Church of Christ approach is to

be credited at all, it must have application in the case of

conservation litigation.

4. The Ninth Circuit’s fears are unfounded. The Ninth

Circuit’s opinions in this case and in Alameda Conservation

express a clear reluctance to open the courts to groups like

the Sierra Club. This reluctance is evidently grounded in

several considerations, each of which we believe worthy of

brief comment.

Judge Trask, writing for the majority in Sierra Club and

Alameda Conservation, seemed concerned that the normal

functions of government might be disrupted if envirenmental

or other organizations were permitted to invoke the juris-

diction of federal courts. Thus, in Sierra Club, he stated

his view that the Sierra Club’s interest was not “sufficient

to challenge the exercise of responsibilities on behalf of all

of the citizens by two cabinet level officials of the govern-

ment acting under Congressional and constitutional author-

ity.” 433 F.2d at 30. In Alameda Conservation, the view

was made somewhat more explicit. Organizations were de-

_ nied standing because:

“Were it otherwise the various clubs, political,

economic or social now or yet to be organized,

could wreak havoc with the administration of gov-

ernment, both federal and state.” 437 F.2d at

1090.

We are not sure precisely what the court had in mind.

To the extent these passages reflect a view that the actions

of the Secretaries are in some sense immune from judicial

review, we believe the point is answered by the recent de-

cisions of this Court. It is, as we show in a later section,

a rare case indeed when administrative action is unreview-

able. To the extent the passages reflect a fear that the

courts will be inundated by all varieties of litigious organ-

izations, we consider the fear unfourided. “The courts have

consistently minimized the danger that liberalized standing

rules will lead to inundation of the judicial dockets. As the

court in Scenic Hudson put it:

“We see no justification for the Commission’s fear

that our determination will encourage ‘literally

thousands’ to intervene and seek review in future

proceedings. We rejected a similar contention in

Associated Industries v. Ickes, * * * noting that ‘no

such horrendous possibilities’ exist. Our experience

with public actions confirms the view that the ex-

pense and vexation of legal proceedings is not lightly

undertaken.” 354 F.2d at 617.

To the same effect, see Church of Christ, 359 F.2d at 1006;

National Welfare Rights Organization v. Finch, 429 F.2d

725, 738-39 (D.C. Cir. 1970). Mareover, granting standing

to organizations may well decrease rather than increase the

burden on courts, since “[rJepresentation of common inter-

ests by an organization * * * serves to limit the number of

those who might otherwise” bring actions. Scenic Hudson,

354 F.2d at 617.

To the extent the Ninth Circuit was concerned that the

lawful activities of the government would be disrupted by

obstructive lawsuits, its concern seems misdirected. Con-

ferring standing upon a group asserting legitimate interests

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results in interference only with administrative actions of

doubtful legality, since if those actions are obviously law-

ful the government can move successfully for dismissal or .

for summary judgment. The problem of obstructive law-

suits is appropriately solved not at the courthouse door but

in the courtroom itself, for the “doctrine of standing was

never intended to provide a shield for official illegality.”’>5

Judge Merrill, in his concurring opinion in Alameda Con-

servation, noted an additional concern. In his view, if an

action is brought by an organization in circumstances where

the “rights of its members are not tendered for adjudication”

(437 F.2d at 1097-98), an adverse judgment would not bind

the members and therefore would free them to “‘relitigate

so long as imaginative counsel can find an escape from stare

decisis.” Id. at 1098. This problem, if it is a probiem, is

by no means unique to litigation by groups. If an indivi-

dual whose property was to be damaged by the Mineral King

project had brought an unsuccessful action to enjoin it,

other individuals similarly injured would have been equally

free to retain imaginative counsel and to relitigate the issue.

. Beyond that, however, the courts are not powerless to

deal with the threat of subsequent relitigation. The Court

of Appeals for the District of Cslumbia Circuit recently

considered the problem and suggested that where the plain-

tiff is an association the district court might appropriately

entertain the defendant’s request that the suit be desigr.ated

a Class action. National Automatic Laundry & Cleaning

Council v. Schultz, D.C. Cir., No. 22,692 (March 31,

1971.)°® This is precisely the procedure followed by the

**Sierra Club v. Hardin, 2 BNA Env. Rep. Cas. 1385, 1392 (D.

Alaska 1971).

©The court stated:

“An organization that is a sufficiently effective spokesman for

‘the interests of its nicmbers to assure an adversarial presenta-

tion of the issues has standing to present their views even

though the action is not brought under Rule 23. * * * But

the court that holds itself open to an organization that seeks

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court in Sierra Club v. Hardin, 2 BNA Env. Rep. Cas. 1385,

1392 (D. Alaska 1971), where in order to foreclose the

“threat of harassment through consecutive lawsuits” the

court granted the motion of a private defendant to require

the plaintiffs to proceed under Rule 23.

In sum, most courts have not let predictions of dire con-

sequences deter them from according standing to those who

_are likely to present a dispute in an adversary context. The

experience of these courts has not been unsatisfactory. While

. conservation groups and other organizations have frequently

been granted standing, we know of no instance of harass-

ing relitigation or of inundation of the dockets or of ob-

Structive lawsuits that can be attributed to liberalized stand-

ing rules.

C. Zone of Interests

If, as we believe we have demonstrated, the Sierra Club

has a sufficient stake in the outcome of this controversy,

it must still pass the second test for standing: “whether

the interest sought to be protected by the complainant is

arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in ques-

tion.”’\ Data Processing, 397 U.S. at 153. This formulation

was altered in Investment Company Institute v. Camp, 39

U.S.L.W. at 4407; but, as we shall explain, the alteration

was expansive rather than restrictive. Under either formu-

lation it is clear that the.test presents no barrier to the

Sierra Club’s standing.

1. The Data Processing formulation. In both Data Process-

ing and Barlow, the Court looked to the relevant statutory

provisions and their legislative history for some indication

of a Congressional intent to protect the interests of the

access to pre-enforcement review on behalf of its members,

has discretion to determine that the Government’s request

for protection of its interests warrants an insistence that this

representative suit be maintained as a class action.” Slip

opinion, pp. 27-28.

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complainants’ class. In Barlow, the statutes and ineir his-

tory expressly directed the Secretary o? Agriculture to pro-

tect the interests of the tenant farmers. 397 U.S. at 164-

65. While there was no such explicit Janguage in the Data

Processing statutory materials, “‘their general policy [was]

apparent; and those whose interests [were] directly affected

by a broad or narrow interpretation of the Act [were] easily

identifiable.” 397 U.S. at 157.

The statutes relevant to the claims made by the Sierra

Club are those governing the management of the public lands

in question. These, like the statutes in Barlow, evince a

clear intent to protect the interests sought to be protected

by the Sierra Club—that is, the public’s interest in ‘“‘conser-

vation and sound maintenance” of the public lands in ques-

tion. With respect to Sequoia National Park, the relevant

statutes are the Act of August 25, 1916, 39 Stat. 535, as

amended, 16 U.S.C. 8 1; the Act of September 25, 1890,

26 Stat. 478, 16 U.S.C. § 41; and the Act of July 3, 1926,

44 Stat. 820, 16 U.S.C. § 45b. The first, which created the

National Park Service as an entity within the Departn.2nt

of the Interior, directs that the Service shall promote and

regulate the use of the national parks in conformity with

their fundamental purpose,

“which purpose is to conserve the scenery and the

natural and historic objects and the 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.”

The latter two statutes, which deal specifically with the lands

within Sequoia National Park, dedicate the park “‘for the

benefit of the people” and direct the Secretary of the

Interior to administer the park to assure

“the freest use of said park for recreation purposes

by the public * * * and for the preservation of said

park in a state of nature so far as is consistent with

the purposes of sections 45a-45e of this title.”

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Similarly with respect to the forest lands, the Congress

in the Multiple-Use Sustained-Yield Act of 1960, Pub. L.

86-517, 74 Stat. 215, 16 U.S.C. 8 528-31, declared as its

policy that “‘the national forests are established and shail

be administered for outdoor recreation, range, timber,

watershed, and wildlife and fish purposes” ($ 528), and

directed the Secretary of Agriculture to “administer the

renewable surface resources of the national forests for

multiple use and sustained yield of the several products and

services obtained therefrom” (§ 529). Among the consider-

ations that must be taken into account, are “‘the needs of

the American people” and the necessity for

*“armonious and coordinated management of the

various resources, each with the other, without im-

pairment of the productivity of the land * * *.”’

§ $31(a).

Likewise, the Act of June 4, 1897, 30 Stat. 35, 16 U.S.C.

§§ 475, 551, directs that the national forests be administered

“to improve and protect the forest’ and “‘to preserve the

forests * * * from destruction.”

It is plain on the face of these statutes that the Congress

intended to protect the conservation interests of the publi:

generally. Any member of the public seeking tc protect

those interests therefore falls within the “zone of interests.”

Even if some purpose could be discerned to protect a more

limited 2lass of persons, that class would presumably include

at least those who have some special interest in furthering

the objectives of the legislation. For all the reasons already

discussed, the Sierra Club would qualify whether it be

regarded as an organization dedicated to the preservation

and wise use of the nation’s natural resources or as a

spokesman for individuals having such interests. There can,

therefore, be no doubt that the interests asserted by the

Sierra Club are arguably within the zone of interests to be

protected by the statutes in question.

2. The Investment Company test. Even assuming, as we

do not, that the Sierra Club fails to meet the zone of inter-

ests test, it would certainly satisfy the Investment Company ©

reformulation of that test. The _Jnvestment Company

Court’s characterization of the Data Processing holding is

revealing: “‘we concluded that Congress had arguably legis-

lated against the competition that the petitioners sought to

challenge, and from which flowed their,injury.” 39 U.S.L.W.

at 4407. The effect of this change, as noted in Mr. Justice

Harlan’s dissent and as exemplified by the case itself, was

at a minimum to make unnecessary a showing that the leg-

islation’s purpose was to protect the petitioner’s interests.

It is enough now that its effect is to protect those interests.

Thus, as Mr. Justice Harlan pointed out:

“[N either the language of the pertinent provisions

* * * nor the legislative history evinces any con-

gressional concern for the interests of petitioners

and others like them in freedom from competition.

Indeed, it appears reasonably plain that, if anything,

the Act was adopted despite its anticompetitive

effects 1ather than because of them.” 39 U.S.L.W.

at 4412-13.

The Court nevertheless considered that, since the “Congress

did legislate against the competition that the petiti@hers

challenge”’ (id. at 4407), their standing was clear.

We consider it beyond challenge that the statutes referred

to above reflect an obvious purpose to protect the public’s

interest in conservation and sound maintenance of the public

lands in question, and that it is consequently unnecessary

to apply the broader /nvestment Company standard. If

that standard were nevertheless used, there could of course

be no serious doubt that the acts challenged by the Sierra

Club—namely, the approval of rights-of-way, construction,

and operation of the access road through Sequoia National

Park, and the issuance of permits for the occupation of

Sequoia National Forest lands by the Mineral King project—

were “arguably legislated against’? by the Congress ir the

pertinent Acts. That is, Congress arguably foreclosed the

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purposes and arguably prohibited the issuance of permits

for use of forest lands in excess of 80 acres for any one

project. And the acts challenged are, as in /nvestment

; Company, the source of the injury asserted by the Sierra

\ Club.

? Uncer either formulation, then, the second standing test

presents no obstacle to the Sierra Club’s standing.

<D. Reviewability

We come finally to the third Data Processing test—

“whether judicial review has been precluded.”’ This standard

is grounded in the Administrative Procedure Act, 5 U.S.C.

§ 701(a), which permits judicial review unless some statute

precludes it or the challenged action is committed by law

to agency discretion.

Little need be said here. This Court in Abbott Labora-

tories v. Gardner, 387 U.S. 136, 140 (1967), established the

principle, reiterated in Data Processing and Barlow, that

‘judicial review of a final agency action by an aggrieved per-

son will not be cut off unless there is a persuasive reason

to believe that such was the purpose of Congress.’’ With

respect to statutes that may be thought to preclude such

review, a clear command, or a command inferred from the

statute’s purpose, will suffice. Barlow, 397 U.S. at 167.

But such an inference requires ‘‘a showing of ‘clear and

convincing evidence’ of * * * legislative intent,” Abbott -

Laboratories, 387 U.S. at 141, and where the zone of inter-

ests test has already been met this showing may bi impos-

sible. As the Court observed in Barlow, 397 U.S. at 167:

“The right of judicial review is ordinarily inferred

where congressional intent to protect the interests

of the class of which the plaintiff is a member can

be found; in such cases, uniess members of the pro-

tected class may have judicial review the statutory

objectives might not be realized.”

: &

There has not to our knowledge been any suggestion in this

proceeding, nor could there be, that any statute precludes,

a ‘=

on its face or-by clear inference, judicial review of the 3

actions challenged. 7

Though the Government urged in.its briefs below that

the actions of the Secretaries in approving the Mineral King

project and the access road were, in effect, committed to

their discretion by law, those briefs were written before

this Court’s decision’ in Citizens to Preserve Overton Park,

Inc. v. Volpe, 39 U.S.L.W. 4287 (March 2, 1971). Overton

Park held that the agency discretion provision “‘is a very

narrow exception” to judicial reviewability, restricted to

“those rare instances where ‘statutes are drawn in such

broad terms that in a given case there is no law to apply.’ ”

39 U.S.L.W. at 4290. We do not believe, in view of this

conclusive statement, that the Government can or will renew

its suggestion before this Court.

SHAN Soe Re ern nce

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THE PARK HIGHWAY ISSUE

Beyond the issue of standing, of course, are the other

issues that the Ninth Circuit resolved against the Sierra Club

on the ground that it failed to establish a ‘“‘strong likelihood”

or “reasonable certainty’ of ultimate success on the merits.

We will deal with only one of these other issues: Whether

the Secretary of the Interior acted within the scope of his

statutory authority when he sanctioned the use ofa 9.2 mile

strip of land in Sequoia National Park for construction of

an access highway to the proposed Mineral King recreational

development to the east of the park.>”

Respondent’s case stumbles at the threshold. The Admin-

istrative Procedure Act, 5 U.S.C. § 706 (Supp. V), calls for

>7Petitioner has attacked the Secretary’s action on the additional

grounds that he failed to observe requirements to hold a hearing and

to make formal findings on the ecological impact of the road. How-

ever, we have confined ourselves to an argument that, whether or not

there were any such additional requirements, the Secretary acted in

excess of hic statutory authority.

judicial review of agency action on “the “whole record”

compiled by the agency. There is no reason to believe that

the record placed before the lower courts, and now before

this Court, satisfies that requirement. ’ It consists only of

the pleadings, supporting legal memoranda, litigation affi-

davits, and certain exhibits assembled by the Sierra Club.

Whether anything is missing we do not know, but it surely

would be remarkable if without discovery the Sierra Club

was somehow able to obtain all documents utilized by the

Department of the Interior (hereinafter referred to as “the

Department’’) in connection with its road approval action.

However that may be, this Court has now made it clear that

the complete agency record—while required as a minimum

condition—will not be deemed an adequate record tor

review unless it contains materials that disclose the factual

and legal basis for the agency action. Citizens to Preserve

Overton Park, Inc. v. Volpe, 39 U.S.L.W. 4287, 4992-93

(March 2, 1974).°8 Since judicial review is directed at the

action itself rather than at later explanations of that action,

*2the record should ideally consist of materials that were

actually before the decisionmaker, reflecting his contempor-

aneous appraisal of the evidence and understanding of his

statutory authority. If such materials are not available—and

here again we know only that they are not part of the

record—the preferable method of securing the right to

effective judicial review is to order an examination of the |

decisionmakers themselves, although the preparation of

formal findings may possibly suffice despite the fact that

they are retrospective and “thus must be viewed critically.”

Id. at 4293.

If the Secretary’s actions with respect to the Mineral King

Highway are reviewable at all—and as already noted the

holding in Overton Park seems to us to dispose entirely of

38In Overton Park, as in this case, agency acuon was challenged

by motion for a preliminary injunction. See Citizens To Preserve

Overton Park, Inc. v. Volpe, 432 F.2d 1307, 1309 (6th Cir. 1970}.

any doubt that may have existed on this score—the most

that respondent can reasonably expect is an opportunity at

a trial on the merits to present a proper record showing the

basis of the Secretary’s actions.

A. The Statutory Context

The Act creating the National Park Service defined the

purposes for which national park lands were to be admin-

istered as follows:

“The service thus established shall promote and regu-

late the use of the Federal areas known as national

parks * * * by such means and measures as conform

to the fundamental purpose of the said parks * * *

which purpose is to conserve the scenery and _ the

-natural and historic objects and the 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.

This statement of purposes, enacted in 1916, 39 Stat. 535,

and reinforced by the Act of October 9, 1965 , 79 Stat. 969,

16 U.S.C. § 20 (Supp. V)?9—declaring a policy of Congress

ia hey. ine?

#7 eS Sk, oo ee

*9In its entirety this section provides:

“In furtherance of the Act of August 25, 1916 (39 Stat.

535), as amended, which directs the Secretary of the Interior

to administer national park system areas in accordance with

the fundamental purpose of conserving their scenery, wildlife,

natural and historic objects, and providing for their enjoy-

ment in a manner that will leave them unimpaired for the

enjoyment of future generations, the Congress hereby finds

that the preservation of park values requires that such public

accommodations, facilities, and services as have to be pro-

vided within those areas should be provided only under

carefully controlled safeguards against unregulated and indis-

criminate use, so that the heavy visitation will not unduly

impair these values and so that development of such facilities

can best be limited to locations where the least damage to

park values will be caused. It is the policy of the Congress

that such development shall be limited to those that are

necessary and appropriate for public use and enjoyment of

the national park area in which they are located and that are

consistent to the highest practicable degree with the preserva-

tion and conservation of the areas.”’

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that “public accommodations, facdities, and services” in the

parks “shall be limited to those that are necessary and

appropriate for public use and enjoyment of the national

park areas in which they are located”—obviously confers

broad powers on the Secretary of the Interior (hereinafter

: referred to as “‘the Secretary”’), acting through the Director

a of the National Park Service (hereinafter referred to as “the

Service”).*° But it also expresses, by the Clearest implica- .

tion, a limitation on that power. If land within the national

park system, required to be administered under the prin-

ciples set forth in 16 U.S.C. $1, is committed by the

Interior Department for some purpose other than “to con-

serve the scenery and natural and historic objects and the

wild life therein” or. “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’ (here-

inafter referred to as ‘‘park purposes’), then in our view the

action must be set aside as unauthorized. We doubt that

the government seriously disagrees with this view, for at no

stage of these proceedings has it pointed to any statutory

provision indicating that the park purposes established by

16 U.S.C. $1 are not exclusive of all others, and its lame

suggestion that the Department is free to depart from these

purposes in the administration of Sequoia National Park

collapses at the touch.

Be Ri SIONS AD OR I a GAN

Our contention in connection with the Department's

threatened final approval of the 9.2 mile segment of the

proposed Mineral King Road (California Route 276) that

passes through Sequoia National Park is that such approval

would exceed the scope of authority conferred by 16 U.S.C.

: 40See Universal Interpretive Shuttle Corp. v. Washington Metro-

: politan Area Transit Comm'n, 393 U.S. 186, 187 n.1 (1968), for

recognition of the legal identity of the Director and Secretary in

i matters of national park administration.

§1.4' Neither in fact nor in intention would the threatened

action serve the dual purposes—preservation and public

enjoyment—for which the Congress has decreed that national

parks be managed. If some new purpose—in this case the

provision of road access to a commercial development out-

side the park—is now to be added as a guide to land use

decisions affecting the national parks, new legislation will

surely be needed to accomplish the change. It will be

needed, that is, unless the Department can somehow, on an

augmented record, sustain a conclusion that on this record

it has never shown to be true, much less shown to have

been the basis for agency action—that Sequoia National Park,

or the experience offered to visitors within the park, will

be enhanced by the construction of a modern high-speed

road designed to carry 1,200 cars per hour back and forth

between the California State highway system on the west

and a private year-round resort development on the east.

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We note by way of further preliminary comment, not

| because we think confusion is likely to arise on the point

| but rather to avoid any possible misundeistanding of our

argument, that—with the exception of areas set aside under

| the provisions of the Wilderness Act of 1964, 16 U.S.C.

88 1131-364? the Department does not operate under a stat-

ARENA ERIN RE RRR NCEE

*! According to the litigation affidavits filed by the government as

attachments to its Memorandum of Points and Authorities in Opposi-

tion to Plaintiff’s Motion for a Preliminary Injunction (R. 205-27), &

the Secretary on November 19, 1968, did in fact approve in principle i

the use of a corridor through Sequoia National Park for the access :

road. Issuance of the special use permit authorizing actual construc- i

tion of the park segment of the road, however, was withheld pending

agreement on design standards. See McLaughlin Affidavit, 9 3-6

(A. 181-82); Deffebach Affidavit, J 8 (A. 161-62).

*?The Wilderness Act defined the characteristics of a wilderness

area, 16 U.S.C. 81131(c), and required the Secretary, within ten years

after September 3, 1964, to review “every roadless area of five

thousand contiguous acres or more in the national parks,” and to

report his recommendations on the suitability of such areas for preser-

vation as wilderness. 16 U.S.C. 8] 132(c). On those areas thereafter

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utory mandate to maintain the national parks in a pure

state of nature, free of all intrusions in the form of roads

or other public facilities and accommodations. To be sure,

the directive in 16 U.S.C. §1 that national parks be admin-

istered so as to “‘conserve the scenery and the natural and

historic objects and the wild life therein’ must mean that

wilderness values are a constant and inevitably important

concern in all national park planning. But at the same time

the Department has a statutory responsibility under 16

U.S.C. §1 to promote the use of the parks and to provide

for their enjoyment by the public—with the significant

qualification, however, that means selected to this end must

be such “‘as will leave them unimpaired for the enjoyment

of future generations.”’ So far as one can divine the legisla-

tive intent from the statutory language, the responsibility

relating to public use and enjoyment, as qualified, is of co-

2qual rank with the responsibility of conserving scenery,

objects, and wild life.

Quite obviously, or so it appears to us, there is tension

between these two responsibilities. To the extent that the

duty to promote the use and provide for the enjoyment of

the parks may require the construction of permanent facil-

ities (such as the roads, lodges, and restaurants commonly

found within the parks),*? the preservation interest cannot

accorded wilderness status by Act of Congress, “there shall be no

commercial enterprise and no permanent road.” 16 U.S.C. $1133(c).

On April 28, 1971 the President transmitted to the Congress a

proposal to add 14 areas to the National Wildernes: System. 7 Weekly

Compilation of Presidential Documents 094 (May 3, 1971). One of

the proposed additions is an area of 721 970 acres in Sequoia National

Park and contiguous Kings Canyon National Park. However, while

this area includes portions of Sequoia National Park both to the north

and south of the Mineral King Road, it does not include the portion

of the park in the immediate vicinity of the roadway.

4316 U.S.C %3 authorizes the Secretary of the Interior to grant

privileges, leases, and permits, for periods not exceeding thirty years,

for the use of land for the accommodation of visitors in the various

national parks. Since the government relies on this section as 4

be fully served. Similarly, if an area is to be preserved in a

natural state, opportunities for public use must to some

extent be sacrificed. We are willing to concede that the

task of balancing these interests—preservation and use—is

the necessary business of national park management. So

long as the balance is struck in some reasonable way—that

is, so long as account is taken of the relevant considerations

and so long as the Department does not entirely foreclose

public use for the sake ot preservation or destroy in the

name of public use the natural values it is obliged to

preserve—we are willing to concede that large measures of

discretion are available to the Department and that its

actions are subject to review only on the narrow grounds

prescribed by Section 706(2)(A) of the Administrative Pro-

cedure Act, 5 U.S.C. §706(2)(A) (Supp.V).% If, for

example, in the Department’s considered judgment an. addi-

tional road were needed in one or another of the parks,

either to handle an increasing volume of traffic or to create

motor access to a new area within the park, the decision to

build—assuming a proper articulation of reasons—could be

sustained under the general authority contained in 16 U-5.C:

$1, as implemented by the specific authority relating to

park roads contained in 16 U.S.C. § 8.45 .

We agree, then, that the Department administers the

national parks under broad guidelines that permit a wide

range of choices between competing interests of preser-

source of authority for the Secretary’s road approval action, we will

discuss its relevance later.

4 This provision directs the reviewing court to set aside agency

action that is “arbitrary, capricious, an abuse of discretion, or other-

wise not in accordance with law.”

*S This provision, about which we also shall have more to say later,

authorizes the Secretary to “construct, reconstruct, and “improve”

roads within the national parks. Like 16 U.S.C. § 3, see note 43 supra,

this provision simply translates into concrete terms the general

authority granted by 16 U.S.C. 81 to promote the use and provide for

the enjoyment of the national r'-ks.

F RENAN ERS PEE MOREE

SERA PERS HINER ORE RG Ra STR PRET MNO NR ee

SePeawios ec RK Be ed

vation and use, and that under some circumstances the

construction of roads within the parks is a permissible

activity. However, these propositions are of no aid to

the Department where, as we contend and will now show,

it proposes to authorize the construction of a road not for

the purpose of promoting the use and enjoyment of the park

itself but for the purpose of providing a high-speed connec-

tion between points lying outside the park. Cast in terms

of the legal issues on which the reviewing court is directed

to focus by the Administrative Procedure Act, 5 U.S.C.

§706(2)(C)(Supp. V),* our contention is that the Depart-

ment is acting outside the scope of its statutory authority

when it compromises the preservation of a national park in

its natural state for the purpose of providing road access to

a commercial development outside the park.

We will first demonstrate that, so far as the matter is

disclosed by the record developed in these proceedings, the

sole purpose of the proposed California Route 276, includ-

ing the 9.2 mile segment cutting through Sequoia National

Park, is to service the planned Minera! King project in the

game refuge area of Sequoia National Forest to the east of

the park. We will then deal~with the various arguments

advanced by the government, and accepted by the Ninth

Circuit in its very brief discussion of the road issue, 433

F.2d at 36, in supposed justification of the decision to per-

mit construction within the park—namely, that the proposed

~_-soad will produce the incidentai benefit of increased park

visitation by the public, that the proposed road is simply an

“improvement”’ of the existing road, and that the Secretary’s

authority to administer designated public lands can reason-

ably be construed as empowering him to grant whatever

road permits he sees fit.

action that is “in excess of statutory jurisdiction, authority, or limita-

tions, or short of statutory right.”

B. Approval of the Road Was Not Based

on Any Legitimate Park Purpose

With regard to the purpose of the road, the District

Court made the following finding of fact:

“In the present case the record shows that the

proposed highway, so far as it will cut through

Sequoia National Park, is designed and intended, not

as an adjunct to the National Park, itself, but as a

connecting link to route motorists through the park

to reach an ultimate destination outside the Park—

the proposed, private Mineral King resort-hotel com-

plex in the adjoining forest game refuge area.”

A. 194.

The materials available to the District Court would have

warranted no other finding. On the Sierra Club side, the

relevant materials included the complaint for injunctive

relief asserting that the construction of the road would

destroy or adversely affect scenery and other natural

values within the park and that its sole purpose was to serv-

ice the Mineral King development (A. 8), supported by an

affidavit of the organization’s Conservation Director assert-

ing that the routing through the park was not a proposal of

the Service and in fact had been Opposed for several years

by the Department (A. 36-37). To the affidavit were

annexed numerous exhibits. One of these was a letter from

the Acting Assistant Director of the Service stating:

“It was with great reluctance that Secretary Udall

agreed with Secretary of Agriculture Freeman that

the access to Mineral King would be by a toad

through a portion of Sequoia National Park.”

A. 13997

*7We think the same reluctance is expressed in the correspondence

between these Cabinet officers attached as exhibits to the McCloskey

affidavit (A. 136-37). For example, in his letter of October 6, 1968,

to the Secretary of Agriculture, the Secretary of the Interior stated:

“In addition to our desire to minimize the damzge to park

values by this road, we are concerned about what we have

been told concerning the size of the planned Disney deveiop-

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Among the other exhibits were a memorandum from the

State Highway Engineer to the California Highway Commis-

7 sion (A. 54-56),*® with an attached Report of Route Studies

= (A. 57-73), and a Report on Road to Mineral King (A. i40-

‘ 57) prepared by the Clarkson Engineering Company at the

request of the Service, all of which clearly identify access

to Mineral King as the purpose of the road*? and all of

which conspicuously fail to suggest that park values would

be enhanced by the road.

ment. Will one two-lane road of park standards be adequate,

or will Interior later receive a request for another road?”

One reasonable construction of this letter is that the Secretary viewed

it as a discharge of his statutory responsibilities if, in the course of

approving a project that scrved no park purpose, he took steps to

minimize the consequential damages to park values. Such a construc-

tion obviously could not be squared with the mandate of 16 U.S.C. 8 i,

or with the policy expressed in i6 U.S.C. § 20 that improvements be

authorized only when “necessary” for public enjoyment of the national

parks.

48The segment of road within the park was to be constructed and

maintained by the State of California. It was to be part of State

Route 276, which was added to the’State highway system by a 1965

act of the California legislature. See Deffebach Affidavit, {3 (A. 161).

49The memorandum states (A. 54):

“The highway will provide access to the proposed $35 million

recreational complex at Mineral King* * *.”

The route study attached to the memorandum states (A. 58):

“The route is to be developed as an all-weather highway to

provide access to the proposed: $35 million recreational

complex at Mineral King* * *.”

The report commissioned by the Service states (A. 140, 143):

“The California State Highway Department proposes to build

a two-lane, two-directional road across the National Forest

and National Park lands to service the proposed recreational

developments in the Mineral King Canyon.”

* * * * *

“The primary purpose of the proposed highway is to serve the

Mineral King development.”

On its side, with its Memorandum of Points and Author-

ities in Opposition to Plaintiff’s Motion for Preliminary

Injunction, the government submitted several affidavits.

The only representative of the Department among the affi-

ants was John McLaughlin, Superintendent of Sequoia

National Park. He did not even assert in his affidavi: that

the proposed Lighway would serve a park purpose, let alone

that such a purpose motivated the approval decision at the

time it was made.*° Nor did he deny that for several years

the Department opposed the park routing, of explain the

considerations that were taken into account when the rout-

ing was approved. To the contrary, he blandly confirmed

that park space was to be surrendered to nourish with

customers a commercial enterprise outside the park:

“That in connection with the said development

[Mineral King], it is planned that an all-year access

highway over 9.2 miles of the land in the Sequoia

National Park will be constructed * * *.” A. 1815!

It was only in its legal argument, when it was free to

rationalize the Secretary’s decision in terms of how it might

have been reached rather than how it was reached in fact,

that the government introduced the concept of incidental

park benefits:

*°The affidavit did assert that the construction of the road would

be subject to standards “that will protect the National Park values”

(A.182). But this assurance, meaningless in any event in the absence

of sorae definition of the Superintendent’s idea of ‘National Park

values,” missed the point. The question was not whether the manner

of construction would meet design standards relating to roadbuilding

within the parks (see Park Road Standards, Department of the Interior,

National Park Service, May 1968), but whether the road itself would

further a park purpose.

‘Needless to say, the other afiiants made no mention of any

park purpose. For example, the representative of the California

Division of Highways simply asserted that in connecticn with the

Disney project it was “necessary” to build the road. Deffebach

Affidavit, | 3 (A. 161).

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‘Admittedly, one of the purposes of the new road

will be to provide access to Minéral King. At the

same time, however, the road will permit greater use

of the national park itself and connections in the

i park will be provided in aid of permitting easier park

: access. Whether the road will affect the beauty of

: the park is a question of opinion which must be left

‘ to the Secretary’s judgment. Certainly, the benefits

? of the road to the general public justify its construc-

tion as well as the conclusion that this national park

segment should not be permitted to blockade public

use of the adjoining forest lands. Ag noted previ-

ously, Congress has indicated its intention that

public lands should be administered. under the

multiple use principle.” R. 219.*?

We will turn back to this argument in a moment. ‘We simply

note here the absence of any allegation that the\Secretary’s

approval decision was taken to secure a park purpose.

Rather the allegafion is that in the process of serving an

unrelated purpose, the road would also permit more inten-

sive use of the park by the public. So far as that kind of

* analysis goes, of course, a four-lane or a six-lane expressway

: might well have been better than the proposed two-lane

highway. In any event there was obviously no alternative to

the District Court’s finding that the purpose of the road was

not to serve the park but to serve a development on adjoin-

ing lands. The Court of Appeals did not disturb this

finding. 433 F.2d at 36.

S2Memorandum of Points and Authorities in Opposition to Plain-

tiffs Motion for Preliminary Injunction, p. 15 (R. 219). }

> —s

C. The Secretary’s Approval of the Mineral King

Highway Cannot Be Justified on the Ground

That It Would Create Incidental Park Benefits

in the Form of Wider Public Use.

The government’s argument in the District Court, quoted

above, is just the sort of post hoc rationalization of agency

action that this Court has consistently rejected as worthless

where the action is challenged as being in excess of statutory

authority. /nvestment Company Institute vy. Camp, 39 US.

L.W. 4406 (April 5, 1971); Overton Park, 39 U.S.L.W. at

4292: Burlington Truck Lines v. United States, 371 US. 156,

168-169 (1962); SEC v. Chenery Corp., 318 U.S. 80, 87

(1943). The problem with such rationalizations is that by

their nature they cannot illuminate the issues that are criti-

cally important to judicial review—whether the agency head |

was aware of the limitations on his statutory authority,

whether he misconstrued or disregarded those limitations if

he was aware of them, and whether he took account of rel-

evant cou,siderations.

It may well be true, of course, as the government urges,

that in this case the Secretary reasonably could have con-

cluded that it was desirable to promote greater public use

of the southern panhandle of Sequoia National Park. But

so far as can be determined from post hoc argument, it may

equally be true that the Secretary never even considered the

question of public use of the park, or that if he considered

the subject at all he deemed it irrelevant, or that while he

recognized its relevance he based his road approval decision

on other, impermissible consideratioas, or indeed that he

deemed it exclusively relevant and failed to consider preser-

vation values. The same may be said of the government

argument that the effect of the road on the beauty of the

park “is a question of opinion which must be left to the

Secretary’s judgment.” That is a fine theoretical proposi-

tion, but there is no evidence that the Secretary made that

kind of judgment, much less what that judgment was or

how it figured in the decision. And invoking the ‘‘multiple

SUE SE See

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. ——

use principle,” while the phrase has the sound of substance

and is no doubt meant to convey the impression that the

Secretary performed some sophisticated land management

function with which the courts ought not to interfere, is

mere facade. Under 16 U.S.C. 881 and 20, the economic

health of private resor's organized for profit on adjoining

lands is not one of the permissible “‘multiples” in national

park planning.

Even if we assumed, which we do not, that there are

some circumstances in which unexplained agency action

can be defended on the ground that the Secretary self-

evidently both understood the limits of his power and

applied coriect criteria to his decision, thus making inquiry

on these issues superfluous, the defense would surely fail in

this case. That is so because here, judging from the govern-

ment’s post hoc arguments, there are strong indications that

the Secretary in fact misunderstood his statutory authority.

And judging from other information that is available, there

is at least some reason to believe that the Secretary may

h2ve reached a different decision on the road had he applied

prover criteria.

On the point of the Secretary’s view of his statutory

authority, the government argued to the District Court that

“the benefits of the road to the general public justify its

construction as well as the conclusion that this national park

segment should not be permitted to blockade public use of

the adjoining forest lands.””’ What this amounts to, as we

sce it, is a claim thet the Secretary is free to sell out park

interests when it seems to him that some more important

public interest would thereby be helped along. If, as we

have already suggested and show in more detail later, the

Secretary has a legislative warrant to pursue park purposes

only, then he has been guilty of a misconception tha.

deprives his action of all validity. Should this contention

not prevail, it is clear at a minimum that the Secretary was

influenced in his decision by a non-park purpose—the servic-

ing of the Mineral King project—and that fact alone is

sufficiently suspicious to make mandatory a judicial inquiry

into his understanding of the limits of his discretion. Adding

to the suspicion are the undenied allegations that the Depart-

ment initially opposed park routing of the road and approved

it only “with great reluctance.”

A searching probe of the grounds of the Secretary’s

decision—which Overton Park requires—may well prove fruit-

ful in other respects. The crush of vehicular traffic in the

national parks is a known and growing problem. A Park

Road Standards Committee was appointed by the Director

of the Service in 1967 to study the problem, and its 1968

report was submitted to the Secretary with the Director’s

endorsement.°? That report reflects considerable hostility

to new road construction in the parks, as the following

excerpts demonstrate:

“The single abiding purpose of National Parks is to

bring man and his environment into closer harmony.

It is thus the quality of the park cxperience—and not

the statistics of travel—which must be the primary

concern.’’*4

. * * * * *

‘Although, by an accident of history, the National

Park concept reached its development stage at about

the same time as did the automobile, there is no

everlasting and indissoluble relationship between the

two.

*3The committee’s report is contained in a Department publication,

Park Road Standards, Department of the Interior, National Park

Service, May 1968. The Director’s letter forwarding the report to the

Secretary appears at page 2 of the publication. It states:

“If you are in agreement, I would like to make this report

available for distribution to interested conservationists and _

park organizations, aud to begin immediately implementation

of its recommendations within the National Parl: Service.”

(The pages of the publication are unnumbered, so we have numbered

them ourselves designating as page 1 the page displaying the Directox’s

Memorandum of Sepiember 8, 1967, appointing the Committee.)

547d at 6.

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“But in some ways, the National Parks stand at

the same crossroads as do the American cities—some

of which seem on the verge of choking on their

automobiles. Just as noise, congestion, and pollution

threaten the quality of urban life, they have begun

to erode the quality of the park experience.

‘Many park roads are now congested, particularly

around points of great interest; others have a predict-

. y brief grace time.

“There is no reason to expect that the construc-

tion of a new park road, by itself, will always relieve

this congestion.

‘“‘The effective size and capacity cf the parks is

diminished or expanded by the means of access.

i Paul Brooks put it this way:

‘If you are in a canoe traveling at three miles an

hour, the lake on which you are paddling is ten

i times as long and ten times as broad as it is to

the man in a speedboat going thirty—every road

that replaces a canoe paddle, shrinks the area of

the park.’

‘“‘In many locations it is impossible to construct

roads—of whatever standard—without damaging,

enduring scars and obstructing the natural movement

of wildlife.’’*>

* * * * *

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“When the Service is faced with a choice between

creating a severe road scar in order to bring visitors

to a destination point, or requiring visitors to walk

a considerable distance—or considering an alternate

transportation system—the decision shoi:id De against

F the road scar.

“It is quite possible that, at this point in the his-

tory of National Parks, new roads should be

considered the last resort in seeking solutions to park

access.””°°

ca * * * *

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551d. at 6.

S674 at 7. aia

—_

“Inevitably, if the park experience is to maintain

its distinctive quality, the numbers of people and

their methods of access and circulation will neces-

sarily have to be more closely controlled.’’5”

* * * * *

‘Today the facts are these: unless an open-end-

road road-construction program were to be carried

out, the National Parks cannot indefinitely accom-

modate every person who wants to drive an auto-

mobile without restriction through a National

Park.’’°8

* * * * *

‘People need aiso to appreciate that the purposes

of park roads are completely different from those of

the Federal and State systems. Park roads are not

continuations of the State and Federal network.

They should neither be designed—nor designated—

fo serve as connecting links. Motorists should noi

be routed through park roads to reach ultimate

destinations.” *9

The Director of the Park Service has himself been reliably

quoted as saying: °

‘We have been building roads so visitors can drive

45 to 65 miles an hour. I don’t think you can have

a quality park experience at that speed.

71d. ii 8.

*8]d. at 9.

Id. at 9 (emphasis added).

Cahn, Will Success Spoil The National Parks?, Christian Science

Publishing Society, p. 15 (1968). This publication is a reprint of 16

articles on the state of the national parks that appeared in the Christian

Science Monitor between May 1 and August 7, 1968. The series won

the 1969 Pulitzer Prize for National Reporting. In a forward to the

the publication (page 1), the Director of the Service describes the

series of articles as “the most penetrating and thoughtful analysis of

the national parks currently available.” The publication is regularly

distributed by the Service.

ET ELL ETN NE LT TI LEI LE AN NEWT PTET EC SE NMS FM om

‘The parks are not crowded with people, but with

autos.”

In the light of these statements, the government’s argu-

ment that the proposed road might have been jusitified on

the ground that it would “permit greater use of the national

park itself” is even less convincing than usual post hoc

rationalization. It is bad enough to have a record that is

completely silent on the process of decision. But it is some-

thing else to have affirmative indications, based on comments

by responsible agency officials, that had the Secretary even

considered that ‘‘greater use” of Sequoia National Park was

a proper objective,°! he might well have concluded that a

61The number of visits made by the public to Sequoia National

Park increased from 484,700 in 1954 to 919,300 in 1969. Public

Use Of The National Parks; A Statistical Report 1954-1964, Depart-

ment of Interior, National Park Service, p. 10 (1966); Public Use Of

The National Parks December 1969, Department of Interior, National

Park Service (1969), Table 2. We can only speculate about the bearing

these figures might have on decisions to construct roads that would

subject the park to more intensive public use. However, the materials

that were before the District Court do disclose that the ecology of the

park is fragile. See particularly Professor Hartesveldt’s memorandum

Study of the Possible Changes in the Ecology of Sequoia Groves .n

Sequoia National Park to be Crossed by the New Mineral King High-

way, dated December 19, 1966 (A. 84-123), in which 45 giant sequoia

trees are counted in the drainageways below the proposed road, and

in which emphasis is laid on the shallow root structure and vulner-

ability to toppling because of erosion and soil stufting that is char-

acteristic of these trees. See also the Report on Road to Mineral

King, prepared by the Clarkson Engineering Company at the request

of the Service, which states (A. 142):

“Obviously, any road construction to piesent-day standards

could not be built through this area without affecting the

ecology of the area. Within the road prism (cuts and fills)

plant life would, of course, be disturbed and since se top

soil for regenerating plant life is sparse, early vegetative cover

on cut and fill slopes would be very slow in developing.

“More than that, the road, if primarily based on cut and

fill construction, would be a barrier to wild life and visitor

movements throughout this area of the park.”

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road was the wrong way to accomplish that objective, and

that a road designed for 50 MPH speeds was a worse way

still.°

D. The Proposed Road Cannot Be Justified on

the Theory That It Is Simply an *“‘Improve-

ment” of an Existing Road.

We turn now to the Ninth Circuit’s professed inability to

find law or logic “tin a contention that a twisting, sub-

standard, inadequate road through 9.2 miles of park is legal

but an improved all weather two lane highway along a new

but approximately parallel alignment is illegal.” In our view,

this alchemic reasoning converts wholly irrelevant circum-

stances into controliing ones.

To the extent that the Ninth Circuit’s rasoning may have

been inspired by the thought that the new road would per-

form essentially the same function as the old road, only

more efficiently, it involves a premise that is factually incor-

rect. The old road is a “very narrow” 25-mile stretch from

——_.

**It appears that roadbuilding decisions are ordinarily made in the

context of a comprehensive plan for management of the park. See

Bayliss, Planning Our National Park Roads And Our National Park-

ways, Traffic Quarterly, pp. 419-21 (July 1957):

“All park development, including * * * the connecting road

system, is controlled by the master plan for the park. This

is a detailed, as well as narrative plan, which defines the

theme or basic importance of the park, the areas to be

developed and likewise those to be kept free from develop-

ment, as well as the method of interpreting the important

story or features.”

This article identifies its author, Mr. Bayliss, as Chief of Parkways,

Branch of Landscare Architecture, Division of Design and Construc-

tion, National Park Service.

We have found no reference in the record to a master plan for

Sequoia National Park. Nor have we found in the record any other

indication of an intention to develop the area of the park designated

for the proposed road, except in connection with the Mineral King

Project. Indeed, it may be that a master plan exists showing that the

area is among those “to be kept free from development.”

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Three Rivers on the west to Mineral King on the east, with

sharp switchbacks and steep grades, with a surface of oiled

dirt or in places only graded roadbed, and with an estimated

winter. The proposed road—a 20.4 mile stretch—would

connect the same points, but by a routing that would incor-

porate “‘very little’ of the existing roadbed.™ It would have

two lanes of all-weather paving, covering a total width of 28

feet excluding the “‘frequent”’ passing lanes. It would have

the capacity to handle 1,200 cars per hour in each direction,

and by 1978 the average daily traffic flow in the peak sum-

mer months would be 9,850 vehicles. Estimated costs are

$22 million for construction and $400,000 for rights of way.

Clearly it is intended to do something more than tidy up

the old road.

Again a factual misconception is involved if the thought

was that the existing road evidenced some earlier judgment,

entitled perhaps to continuing respect despite the scope of

the planned construction, that the southern area of the park

was suitable for mortorized use. The old road existed when

Sequoia National Park was created in 1890 (A. 28),° and

thus it is not the product of a judgnient by the Service.

63 For a description of the existing road, and the characteristics of

the road proposed by the California Division of Highways, see Report

of Route Studies, pp. 1-4 (A. 58-61). The proposal of the California

Division of Highways was the one adopted by the Service (R. 180),

even though an alternate routing proposal commissioned by the Service

itself recommended that the corridor of the old road for the most

part be followed, see Report on Road to Mineral King (A. 144-46).

We note also that two means of highway access to Mineral King not

involving a surface routing across the park—a tunnel underneath the

park and a north-south road—were studied but apparently rejected

by the Service on account of cost considerations. See Report of

Route Studies, pp. 8-9 (A. 65-66).

“Report of Route Studies, p.4 (A.61). And see map attached

to this report (A. 73).

65 And see the government’s concession on this point at page 12 .

of its Reply Brief in the Ninth Circuit.

Finally, if the Ninth Circuit’s thought was that the exist-

ence of a seasonal dirt road somewhere in a park necessarily

justifies a 50 MPH highway elsewhere in the park—or in the

same place for that matter—there has been a misreading of

the relevant statutes. What the authority to improve and

construct roads conferred on the Secretary by 16 U.S.C. §8

must mean, as we will show in a moment, is that the Secre-

tary is free to do anything in the way of roadbuilding that

serves the broad aims of national park administration set

forth in 16 U.S.C. $1. That is, whether or not an “‘improve-

ment” is being made is a question that can only be answered

in terms of park purposes. Were it otherwise, the Secretary

could convert every dirt road in every park to speedways to

meet transportation goals unrelated to preservation or enjoy-

ment of the parks themselves—a result that would be incon-

sistent not only with 16 U.S.C. $1 but also with the policy

expressed in 16 U.S.C. § 20 that improvements should be

restricted to those that are “necessary * * * for public use

and enjoyment of the national park area in which they are

located.”

E. The Park Purposes Defined by 16 U.S.C.

$1 Are Exclusiv-.

The government’s last-ditch argument is that the Secre-

tary’s judgment is supreme on questions of national park

administration. We are not certain whether the notion here

is that the Secretary’s power is so sweeping that his actions

are unreviewable, or that while reviewable they are never

reversible on grounds that the limits of power were

exceeded. If the claim is immunity from review, we think

The government argued in the District Court (Memorandum of

Points and Authorities in Opposition to Plaintiffs’ Motion for Pre-

liminary Injunction, p. 14, R. 218):

“And since the Secretary of the Interior has the authority

to administer these public lands, an authority delegated by

the Congress, the question of whether the Secretary should

or should not grant a particular road permit does not involve

any issue of legality or illegality but merely one of discretion—

| and one where even the Secretary’s motive would not create

, a basis for judicial review.”

SAR MEET gg Lee Ra oe

this Court’s recent decision in the Ov

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