# Amicus Curiae Brief — Sierra Club v. Morton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 727 ## Text ~ MAY 25 1971 | i IN THE [nT SEAVER, ¢ Supreme Court of the United States OCTOBER TERM, 1970 ed 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) —— A 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 pi 61 67 (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 ee 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 6] 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 ie ea ee ee ee 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 FNS ereeen Re, 7 I, Ag OUR ALO a RR 4 4 ed “ % 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, 7. 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 & & & ; Me SS & . Be 8 & 3 : 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. a ——_ 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. i ee & EES SS Bett Pin, ote mae g ee tae ‘ ’ 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 * * *.” ‘ 5 “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). EEL EPG RH SDS UNNI RARE RT NE RRR EN ater eo oP as SATAN, PR aa ren GOT PENSE oe tae sg co 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- © Alameda Conservation Ass'n y. California, 437 F.2d 1087, 1097 (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 8 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 ‘ 2 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 I 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 Leet Del Ie Rr AULT alee Bi di eC Biteecssti as? KIT ees es Sais See La 12 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- EE 13 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”’; (c) that among its “principal purposes” is the protection “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 3 SS 3 Bs 3 = ¢ & ; x ¥ % % S 8 —— 4 4 i 14 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). 15 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 i 16 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. i id . C4 & 4 Sof ‘ 2 “4 % 17 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 ELIOT TE LEG ITE LI TLE LD SLE STS ENT Ea ae Ms Py PEE TIP ID He MIMS IR MB NS Nyon. gern a at Sprite. a & = -* ¥ a 3 B ss f ' € RB 3 t * ate ROARS SO SMR ote a 2 3 « & ;— 18 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. 3 19 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). 20 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 21 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 22 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 Ge POLE PR Pit ot Ateneo we, — PR Seta © ee OL ELON LE TI NET ee ae RTE BREN ay TE PERE ES or g Bie 23 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 a ; M A he { Ss «sf x “ 3 Mi ? 4 * Dt 3 ‘$ at e ; 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 25 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. —_— = ae —————— 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 27 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.” 3 “4 leit aA SERIO CM Cotas 2 AL BS hl 5S aS ts DD PMR RE AS PL RAT EO RE OLS Riltbiceih ence rhea alti, hig 28 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. 29 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 * * *.” a 30 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: ALA MAS ehedgd aT Raab sch toni tai RTA we Lats ‘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 31 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 a Pa Fes 4 i ae, : 3 ; Ch SRE ALTS HREM EL Si EE ie ee ats t eR IO CP ee eee ee eT eee Ot SPENT ERIS PORE ORCTE STC ata 32 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 33 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 34 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 35 “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 Sr MBAR 2 ey tae he a Tepe LEE i oe OS SRS © OTe TLE OOO oll ps Se re iy 5 a ec EDR PERE SRL ENR Gt ROO AI eS NII AV EE UIC TES ONE ANI TESTA Pe urine Cee 38 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. 39 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. ~ i ¥. : E Ma & k E ¥ & & & ) 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 RRR PPA RINT SPARRO T EY BERET ETRE St cn PREY USS S CES, PE PRE URY E aROOE NT rmniaC amc YX we tA Baiesac:. a 44 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. amg 45 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.” can hig ttn ais te Meade ra Ps tee RETA St ' ” 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. 50 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}. 51 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.”’ PRESS PTET NOES EE Os LAS I RT eth ee AGO LEM LOLI ETE LG NE ELT TT PECTED = ELMER ROI Reel yD IL eI Mahe tram rR eon” SY UST PS i ; 4 b ¥ in yk a2 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. 53 §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. EPS HACC EER At ene ae ce NR de + RE 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 BM, PP PEE aes eee 2: _8 Meee “s. KAA Mars Ry wom: aia iceaitnes Santra bees 54 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 55 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 56 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. ~ 4©This provision directs the reviewing court to set aside agency action that is “in excess of statutory jurisdiction, authority, or limita- tions, or short of statutory right.” 57 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- EE ATE RL NE RT PTT ERT NE RTT TO SIH at Se rer aes SEPA IPSS PEE ARES, SERRATE ESE IEEE WATE . a 58 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.” 39 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). PRBELOTS AND Rea SRNR Ren eran ar antec sie >of SEINE L BLL! SAR HA RN ACR St Setaaprtnes Ne 4 ‘ ' . ee eo Ne \ ‘ nd 60 ‘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 \\ 61 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); S [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A10. Public record. Not legal advice.