Amicus Curiae Brief — Sierra Club v. Morton

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upreme Court, fe Se

aN IN THE

Supreme Court of the Unitgc States in

OCTOBER TERM, 1970 & ROBERT SEAVER, CLERK |

No 29 70- Dh

SIERRA CLUB,

Petitioner,

Vv.

ROGERS C. B. MORTON, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE WILDERNESS SOCIETY, IZAAK WALTON

LEAGUE OF AMERICA, AND FRIENDS OF THE

EARTH AS AMICI CURIAE .

- Bruce J. Terris,

1908 Sunderland Place, N.W.

Washington, D.C. 20009

James W. Moorman

1600 - 20th Street, N.W.

Washington, D.C. 20009

_ Attorneys for the Amici Curiae

cy,

TABLE OF CONTENTS

PAGE

TABLE OF CITATIONS ....... A a are iii

eee 1

ee cae va ueavenarapes 2

RE PREMIERED (os eee 2

INTEREST OF AMICI CURIAE ....... Es ene rere 3

Ee 4

SUMMARY OF ARGUMENT .................00008- 13

oh va kbs pv ns baie Seen = 21

|. THE SIERRA CLUB HAS STANDING TO BRING THIS ACTION... 29

A. The Interests Plaintiff Seeks To Protect Are Argu-

ably Within the “Zone of Interests” Protected by

the Statutes upon Which It Relies ~............ 32,

B. Plaintiff Has Suffered Injury of the Kind Which

Gives It a Personal Stake in the Controversy and

Which Assures Concrete Adverseness ...........

1. The Sierra Club Has Standing as a National

Conservation Organization Ircerested in Pro-

tecting the Environment .....2.....6.0%00%

2. The Sierra Club Has Standing as a Local Or-

ganization Interested in Protecting: Sequoia

National Game Refuge, Forest and Park .....

3. The Sierra Club Has Standing as an Organiza-

tion Representing the Interests of Its Members .

in Protecting Lands Held in Trust for the

American People in National Game Refuges,

I EO oo ci cn uscunsncs eee

4. The Sierra Club Has Standing as an Organiza-

tion Which Itself Uses Sequoia National Game

Refuge, Forest, and Park and Represents the

Interests of Its Member Who Are Users of

Ee ren ee

(ii)

5. If This Court Finds that the Arguments Sup-

porting Standing Are Insufficient, It Should

Remand the Case to the District Court To

Give the Plaintiff an Opportunity To Amend

the Complaint and Present Evidence ....... 63

Il. THE COURT OF APPEALS ERRED IN REVERSING THE

GRANT OF A PRELIMINARY INJUNCTION BY THE DIS-

Were CRIT og ok 5 ch 6 8 OE ES 8 88 67

A. The District Court Properly Issued the Preliminary

Injunction To Preserve the Status Quo on the Basis

of Finding that Plaintiff Raised Substantial and

Gaston NOGOOE > i vin cs cea ees cece eseenses 69

B. The District Court Properly Found that Plaintiff

Would Suffer Irreparable Injury If a Preliminary

Injunction Were Not Issued ......----+-+++-:: 16

Ill. THE CONSTRUCTION OF A SKI AND SUMMER RESORT IN

THE SEQUOIA NATIONAL GAME REFUGE AND FOREST

AND OF A HIGHWAY AND ELECTRIC TRANSMISSION LINE

THROUGH SEQUOIA NATIONAL PARK VIOLATES FEDERAL

CU ATEIINS ae vc vine Oe wee ee es ee ee EEE oe 8 8]

A. The Secretary of Agriculture Has No Authority To

Issue a Permit Which Will Convert Sequoia National |

Game Refuge into a Ski aad Summer Resort ....- 84

B. The Secretary of Agriculture Has No Authority To

Issue a Permit To Build a Resort on 13,000 Acres

of a National Forest ....-.-- eee eerreees 9

1. The Secretary Is Precluded by 16 U.S.C. 497

from Issuing a Permit for a Ski and Summer

Resort on 13,000 Acres of National Forest |

ls oe ane ee eee Se eS 0

2. The Secretary Is Not Authorized by 16 U.S.C.

551 To Issue a Permit for a Ski and Summer

Resort on 13,000 Acres of National Forest

ee Se a ree ee eee Een) 2

3. The Secretary Does Not Have the Inherent

Authority To Issue Permits Which Are Not

Revocable in Law and in Fact ...-..----°"

(iii)

PAGE

a. Inherent Authority of the Secretary of

Agriculture To Issue Revocable Permits .. 102

b. The Lack of Revocability of the Permit-

in This Case ................. . 106

C. The Secretary of Interior Has No Authority To

Allow a Major Highway To Be Constructed Across

Sequoia National Park Which Will Harm the Park

and Which Will Be Solely Used. To Allow Visitors

To Travel to a Commercial Resort Outside the

ee ee ee eee 110

1. The Proposed Highway May Not Be Con-

structed Because It Seriously Threatens the

PO daaad otaaln hee kv ee ha ww SRO wa oe 113

2. The Proposed Highway May Not Be Con-

structed Because It Serves Commercial Non-

ve, ie) ig, Oe eee 116

D. The Secretary of Interior Has No Authority To

Allow an Electrical Transmission Line To Be Con-

y. structed Across Sequoia National Park .......... 119

1. The Electrical Transmission Line May Not

Be Constructed Without Approval from Con-

ROOST Se en cere SAF: cat Wsteatonsks 120

2. The Electrical Transmission Line May Not

Be Constructed Because It Serves Commercial

Non-Park Purposes ..... He Kane Be Eee 124

RLIOION °... 3.5. lO, 124

TABLE OF CITATIONS

CASES:

A Quaker Action Group v. Hickel, 421 F.2d 1111.......... 71

Abbott Laboratories v. Gardner, 387 U.S. 136 ............ 48

Alabama v. United States, 279 US.229............... 68, 70

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

tiorari denied, No. 1300, this Term ...... ...... 50, 55, 62

a 8 «| sa

PAGE

Allen v. Hickel, 424 F.2d 944 .. 0... 2.2 cece cee ee eens 58

Allison v. Carson, 88 Fed. 581 ........-- 00 e eee ee eeee 710

Alpine Lakes Protection Society v. Hardin, W.D. Wash.., No. 885... 42

American Federation of Musicians v. Stein, 213 F.2d 679, cer-

tiorari denied, 348 U.S. 873 .......--- 22 eee eee ees 71, 76

American Ice Co. v. Royal Petroleum Corp., 261 F.2d 365.... 81

Archbold v. McLaughlin, 181 F. Supp. 175......------- 58, 60

Associated Industries, Inc. v. Ickes, 134 F.2d 694, vacated as

pened. SID US. FGF av icncee neg ee ncene see ue 39, 45, 46, 60

Association of Data Processing Service Organizations, Inc. v.

Camp, 397 US. 150 ......--2-2- 2220 13, 30, 35, 47, 48, 78

Association of Northwest Steel Headers v. Corps of Engineers,

E.D. Wash., Civ. No. 3362 ...... 2c eee e ccc esence 42

Baker v. Carr, 369 U.S. 186 ......---5 eee eee eee 13, 33,33

Ballerina Pen Co. v. Kunzig, 433 F.2d 1204 ..........---: 47

Ballou v. General Electric, Inc., 393 F.2d 398 ........-++-: 64

Baltimore & Ohio Ry. v. Jackson, 353 U.S. 325 ........++-- 99

Bantam Books, Inc. v. Sullivan, 372 US. 58 ......--- Saal

Barlow v. Collins, 397 U.S. 159 ow we ee ee eee 48

Barrows v. Jacksor, 346 U.S. 249 ......-- eee eee eee ees 35

Bates v. Little Rock, 361 U.S.516 .......- eee eee eeeee 60

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 .......---- 64

Benson Hotel Corp. v. Woods, 168 F.2d 694 ......-.-.- 71, 77, 81

Blount v. Societé Anonyme du Filtre, 53 Fed.98 .....---: 71

Burton v. Matanuska Valley Lines, Inc., 244 F.2d 647 ..... 71,7!

Buskirk v. King, 72 Fed. 22 ........-eeeeeeeeeceees 71, 78

Causey v. United States, 240 U.S. 399 ....--- ee eee eres 59

Chicago, B. & Q. R. Co. v. Chicago Great Western R. Co., 190

ee Ga en res re ee ae, Me 71

Chicago v. Federal Power Commission, 385 F.2d 629

Chicago v. Fox Film Corp., 251 Fed. 883 .....-----+++++"

PAGE

Chicago, Milwaukee & St. Paul Ry. v. United ytates, 244 U.S.

2 ee ee oe SERS e es CSTW OOO aw 94, 95

Chicago, M. & St. P. Ry. v. United States, 218 Fed. 288, af-

Pg a: ) ee ee arn 32

Chicago v. United States, 396 U.S. 162 ................. 48

Chicot County Drainage District v. Baxter State Bank, 308 U.S.

BE keh eee Ske ha eek so a Kea ek owe end 101

Cipriano v. City of Houma, 395 U.S.701 ........... 101, 102

Citizens Ass’n of Georgetown v. Simonson, 403 F.2d 175..... 60

Citizens Commission for the Columbia River v. Resor, D. Ore.,

a EE ee ST TCR rere res ere 42

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

WT. Se eaie whe kd av 6a oe RA Oe kd wd ee eae 37, 53

Citizens to Preserve Overton Park, Inc. v. Volpe, No. 1066,

this Term, decided March 2, 1971 .....:..........- 48, 50

City of Newton v. Levis, T9 Fed. 718 .........0. 0.000. 70, 76

Commissioner v. Brown, 380 U.S. 563 .............004. 122

Commissioner v. Gordon, 391 U.S. 83 ............2.205. 123

CE TOOT, 112 FDC OG obo ooo ecb ke ewe cas 72

Ce i Se, OSS TG Ey i en 6k hs ve Keak 64

Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780... 74, 22

(piten v; Rapem, 100 F208 O06 os ii ci Sev ences wee ee

Council Bluffs v. Omaha & C.B. St. Ry. Co.,9 F.2d 246 ..... 70, 81

re es, Or 90 8). ss oo eek hes 66

Crane Co. v. Briggs Mfg. Co., 280 F.2d 747 ............. 71

emir». Sede, 445 F048? .. os oo. oc oR 71

Crowther v. Seaborg, 312 F. Supp. 1205 ........... 55, 61, 62

en TO 0 OE te... oe 47

Deckert v. Independence Shores Corp., 31i U.S. 282........ 68

Delaware v. Penn Central, D. Del., decided February 24, 1971.. 56

Jenver & R.G.R. Co. v. United States, 124 Fed. 156........ 70

Des Moines v. Continental Illinois Nat. Bank & Trust Co.,

oo ee a 71, 80

(vi)

Dino DeLaurentiis Cinematogrdfica v. D-150, Inc., 366 F.2d

“eer eeeeeevee eee ee © © © © © © © ee Fe © ee Fe Fe ee ee

District 50, United Mine Workers v. International Union, United

Mine Workers, 412 F.2d 165) .............2-20005. 7

Doeskin Products, Inc. v. United Paper Co., 195 F.2d 356 .... 73

Douglass v. Pike County, 101 U.S.677 ............20... 101

Eastern Airlines Inc. v. Civil Aeronautics Board, 261 F.2d 830.. 175

EDF v. Corps of Engineers, D. D.C., decided January 27,

tg a Pie ee a ara ee 42, 54, 62

EDF vy. Corps of Engineers, D. D.C., Civ. No. 1722-70 ....... 4)

EDF vy. Corps of Engineers, E.D. Ark., decided February 19,

DOE octet cb ha bed Aad Cee eed SORES 42, 52, 53

BIW 0. Feet FAB FOR OBS ww ccc ccccuces 43

EDF vy. Hardin, 428 F.2d 1093 ..............-2200-- 43,5]

EDF v. MEW, 426 F.2d 1083 ©... ccc ct ecw cca cees 52

pe oe ek ke «| er rr 66

pg eR eG > y ee re 78

Farkas v. Texas Instruments, Inc., 429 F.2d 849 ........... 66

Federal Communications Commission v. Sanders Bros. Radio

I Ue A baa nec ee wees ee tue oa

Finn v. American Fire & Casualty Co., 207 F.2d 113 ....... 66

Piet Cee, SP8 UB. BS oo oe he ee cee eg: 35, 36, 39

Flight Engineers’ International Ass’n. v. American Airlines, Inc.,

We ee a ek oe kn a we le ee eT ee 7

i ee ee eg Ay, eg arene era ie 65

Frothingham v. Mellon, 262 U.S. 447) «2... ee eee ees 35, 36, 38

Gandt v. Hardin, W.D. Mich., decided December 11, 1969..... 4)

Garlock, Inc. v. United Seal, Inc., 404 F.2d 256

Gelpecke v. Dubuque, 68 US. (1 Wall.) 175 ......-- +005

Georgia v. Brailsford, 2 U.S. (2 Dall.) 402 ........----+5:

Glascott v. Lang, 3 My. & Cr. 451... 2.2.22. ee eee eee eee

(vii)

PAGE

Great Western Ry. v. Birmingham and Oxford Junction Ry. Co.,

2PM. OR, OFT 6b 6 a sh ks Kb Sse ee esedansineciacern 74

H. E. Fletcher Co. v. Rock of Ages Corp., 326F.2d13 ..... 72

Hadden v. Collector, 72 U.S. (5 Wall.) 107 ............... 123

Hadden v. Dooley, 74 Fed. 429 ©... 2... ee. 72

Hall Signal Co. v. General Rep. Co., 153 Fed.907 ......... 72

Hamilton Watch Co. v. Benrus, 206 F.2d 739 ...... 68, 70, 72, 76

Hardin v. Kentucky Utilities Co, 390US.1 ............ 30

Hart v. United States, 95 US.316 ................... 83

Heikkala v. Barber, 345 US. 229..................... 48

Helvering v. City Bank Farmers Trust Co., 296 U.S.85....... 123

Hockner v. Guaranty Trust Co., 117 F.2d95 ............. 66

Houghton v. Payne, 194 U.S. 88 ..................... 98

Humane Society of the U.S. v. Russell, D. D.C., Civ. No. 3627-

OE eae PS yee ae ne 8A a OOK eee hawinn 43

Iilinois Central v. Illinois, 146 U.S. 387 ................. 57

Industrial Bank of Washington v. Tobriner, 405 F.2d 1321 .... 73

Investment Company Institute v. Camp, No. 61 and 59, this

Term, decided Apri! 5,1971....................... 98

Iselin v. United States, 270 U.S. 245 ................... 98

Izuak Walton League v. St. Clair, 313 F.Supp. 1312 ..... 42, 53

Jenkins v. McKeithen, 395 US. 411 ................... 35

John Birch Society v. NBC, 377 F.2d 194 ............... 66

Johnson v, New Jersey, 384 U.S.719 ................. 101

King Lumber Co, v. Benton, 186 Fed. 458 ............... 71

Lemmon v. Cedar Point, on hes ed Oe 66

Liberty Lobby, Inc. v. Pearson, 390 F.2d 489 ............:. 7]

Light v. United States, 2200 U.S. 523 ............... 32, 59, 94

Linkletter v, Walker, 381 US.618 ................... 101

Louisiana ex rel. Gremillion v. N.A.A.CP., 366 U.S. 293 ..... 60

Louisville & N.R. Co. v. United wentes, 262 UWE: 740... . 98

(viii)

Love v. Atchinson, T. & S.F, Ry., 185 Fed. 321 ...........

Lynch v. Alworth-Stephens Co., 267 U.S. 364.......+++--. 122

Maas v. United States, 352 F.2d 348 .......-2+ ee eee eeee 7’

Magruder v. Belle Fourche Valley Water User’s Ass’n, 239 red.

ig es ews talk AAR eee RAS Ob we eee oS Dake S 70

Manning v. Miller Music Corp., 174 F. Supp. 192, 196 ....... 59

Martin v. Ethyl Corp., 341 F.2d 1...... 25 -@e eee ee eeee 66

Massie v. Buck, 128 Fed. 27... 2.2.2.2 eee eee e er eeees 71

Maty v. Grassel Chemical Co., 303 U.S. 197 ....---+--+ +55 66

Mayo v. Lakelands Highlands Canning Co., 309 USB. 350 . 0x5 70

MacArthur Liquors, Inc. v. Palisades Citizens Ass'n, 265 F.2d

7 Se era ou i Ie Ee ee re ee ee ak a 60

McMichael v. United States, 355 F.2d 283 .......--25000:

Meiselman v. Paramount Film Distributing Corp., 180 F.2d 94.. 81

Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 __

6 kk a es 6a he ewe re es ba he 8 66

Missouri-Kansas-Texas R. Co. v. Randolph, 182 F.2d 996...... 71

Mitchell v. Penney Stores, Inc., 284 U.S. 576 ....-.---++++: 68

Muskrat v. United States, 219 US. 346 .......-.0-5eeees 45

Mytinger & Casselberry, Inc. v. Numanna Laboratories Corp.,

O05 OURO F.C ho eo ee ei wets bese ae 6 oe 68, 70

N.A.A.C.P. v. Alabama ex rel. Patterson, 352 U.S. 449....... 60

N.A.A.CP. v. Button, 371 U.S. 415 2.0... - eee eee eee 60

Nagler v. Admiral Corporation, 246 F.2d 319 ......-++++++ 66

Nantahala Power & Light Co. v. Federal Power Commission,

384 F.2d 200, certiorari denied, 390 US. 945 ......-- 99

National Audubon Society v. Johnson, 317 F. Supp. 1330. ...- 43

National Ass’n of Letter Carriers v. Blount, 305 F. Supp.

Oe ee wich see ee ee ee Oe 60, 61

National Association of Securities Dealers, Inc. v. Securities

and Exchange Commission, No. 59, this Term, decided April

15, 1971 -

. S (ix) 3

, PAGE

National Audubon Society v. Johnson, 317 F. Supp. 1330,

sppenk Ginmtioned by Fitth Circult ... ... . oiciccc eens 43

National Automatic Laundry Cleaning Council v, Shultz,

C.A.D.C., decided March 31, 1971................. 36, 60

National Coal Ass’n v. Federal Power Commission, 191 F.2d

en HES SE EE Ee, ae ok ae a aes 60

Natioml Labor Relations Board v. Majestic Weaving Co., 355

NN, shea ce ce eee ttt e beet ee eee eees 102

National Lawyers Guild v. Brownell, 225 F.2d 552 ....... 7h, 0

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

Wie 4 5 i es Bes Oe ye oe a 16, 60

National Student Ass’n v. Hershey, 412 F.2d 1103 ......... 60

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

og EE CIE, i ean OE ANS: Org pce a te 40, 41

Northwestern Stevedoring Co. v. Marshall, 41 F.2d28 ....... 71

Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d

WO hi ees rae ec % rar ere Goghar" 47

Norwegian Nitrogen Products Co. v. United States, 288 U.S.

MP SVS Nb 0 es ec 98

Office of Communication of United Church of Christ v. Federal

Communications Commission, 359 F.2d 994... .. 31, 38, 40, 45

Ohio Oil Co. v. Conway, 279 US. 813 ................. 69

Old Colony RR. v. Commissioner, 284 U.S. 552 ........... 122

Parker v. United States, 307 F. Supp. 688, 309 F. Supp.

ae os sh tees See ce 41, 53, 62

Pennington v. Coxe, 6 U.S. (2 Cranch) 34 ....... eee, 123

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

Supp. 238, on appeal to the Third Circuit ......... 42, 55, 62

Pennsylvania Railroad Co. v. wee, 398 28 202... 5 5 eS 47

envy, Merwe... 73

Phoenix. y, Kolodziejski, 399 U.S.204 ..........- hea tes 101

Pittsburgh v. Federal Power Commission, 237 F.2d 741 ..... 45

Powelton Civic Home Owners’ Ass’n v. Department of Housing

and Urban Development, 284 F. Pe. 0 ok. 41, 45, 60

(x)

. PAGE

PUNE D, Bile, BS FOO TE ss 55 eis eSWN a 71, 79

Prendergast v.. New York Telephone Co., 262 U.S. 43 ..... 68, 79

Public Service Commission v. Wisconsin Telephone Co., 289

OG EE 5 TAG Ge OAS OWA ERK ESC Ode rakes 75

Rabin v. Rowan Memorial Hospital, 269 N.C. 1, 152 S.E.2d

de ee Cane eee hea Sea aa a ae Be 10!

Railroad Yardmasters v. Pennsylvania R.R. Co., 224 F.20 226... 710

Reade v. Bwing, 20S. F.2d GIO os ee ice cceess 40, 46

Road Review League v. Boyd, 270 F. Supp. 650 ........... 5§

Ross-Whitney Corp. v. Smith Kline & French Laboratories, 207 |

Lf 2. i ree er ae ray skeen ee Serer 7

Royal Indemnity Co. v. United States, 313 U.S. 389 ....... $3

Be CONE, SOR LIS: BOT he. hi 06 ONE 6 He Kes as 48

Safarik v. Udall, 304 F.2d 944, certiorari denied, 371 USS.

RE 6 eerie gs oe 4S A AE EAS CK MO 102

Sanford’s Estate v. Commissioner, 308 U.S.39 ........... 99

Save America’s Vital Environment, Inc. v. Irwin, N.D. Ga., Civ.

Pe I Ba 6G Cle CEE 646 ee Cae e es ws ees 43

Scanwell Laboratories, Inc. v. Shaffer, 424 F.2d 859......... 31,

39, 40, 45, 47

Scenic Hudson Preservation Conference v. Federal Power Com-

NL, DOG Fe Oe 6b oh KS Ree ewes 39, 41, 55

Security Metal Products Co. v. Kawneer Co., 14 F.2d 569... . 70,79

Selchow & Righter Co. v. Western Printing & Lithographing

Ci: R1Z. Fe ee 0 sk a Key see 4 Ck ee oe RES 10

Semmes Motors, Inc. v. Ford Motor Co., 429. F.2d 1197 ..... N

Shaugnessy v. Pedreiro, 349 US. 48 ......... 00. c eee ees 48

Shrewsbury v. Shewsbury and Birmingham Ry., | Sim. (N.S.)

Ne eR a eG BAD OS RNR Ew BAERS ih)

Sierra Club v. Hardin, D. Alaska, decided March 30, 1971..... 4),

45, 61, 6&2

Sierra Club v. Laird, D. Ariz., decided June 23, 1970 .....-- 4)

| | (xi)

Sinclair Refir:ng Co. v. Midland Oil Co., 55 F.2d 42 ........ 71

Societé Comptoir de L’Intustrie Contonniere Establissements

Boussac v. Alexandier’s Department Stores, Inc., 299 F.2d 33. . 72

South Hill Neighborl .0d Ass’n », Romney, 421 F 2d 454..... 60

Special School Dist. of Malvern v, Speer, 75 F.2d 420 ....... 70

Speeding Products v. DriMark Products, Inc., 271 F.2d 646..... Ye

Standard Fashion Co. v. Mrgrane-Houston Co., 358 U.S. 347.... 123

Stern v, Beer, 200 F.2d. 794 ..........0.............. 66

Stewart v. Resor, E.D. Pa., Civ. No. 70-551 eee 42

Stovall v. Denno, 388 U.S. 293... .................... 101

Surawitz v. Hilton Hotels Corp., 383 U.S. 363... ~... 64-65

Texas Committee on Natural Resources v, United States, W.D.

Tex., decided February 5,°1970, affirmed by Fifth Circuit,

a | A 42

Therm « ‘iculogy Must be Preserved y, Atomic Energy Commis-

MON, ASS P20 S24 woke eee een cneencn... 42

Tooahnippah v. Hickel, 397 US. 598................... 48

Toucey v. New York Life Ins. Co., 314US.118........... 99

Triangle Improvement Council v, Ritchie, 314 F.Supp.20 ...... - 47

Truly v. Wanzer, 46 U'S. (S How.) 141 ........ Ler eee 69

Udall v. D.C. Transit System, Inc., 404 F.2d 1358 .......... 80

Udall v. Oil Shale Corp., 406 F.2d 759 2.0... 83

Udall v. Tallman, 380US.1 0 .............0....00 2. 50

Unicon Manufacturing Corp. v. Koppers Co., 366 F.2d 199... . 72, 76

United Federation of Postal Clerks v, Watson, 409 F.2d462 ... 60

United States vy, Corrick, 298 U®. 435 ....... 68 |

United States ex rel. Marins v. Herr, 317 US. 427 ......... 46

United States y, Gratiot, 39 U.S. (14 Pet.) 336 ........«.. 82

United States y. Grimaud, 220 U.S. 506............. 19, 94, 95

: 66

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United States v. Missouri Pac. Ry., 278 U.S. 269 .........., 98

United States v. Nicoll, 27 Fed. Cas. No. 15879, p. 149 ..... 83

United States v. San Francisco, 310 US.16 ............. 99

United States v. Temple, 105 US.97) .........4.22004. 122

United States v. Trinidad Coal Co., 137 U.S.160 ....... 59, 83

United States v. Utah Power and Light Co., 209 Fed. 554,

SN, Be te EN he OR 60 Ee Sawer 83

Utah Power and Light Co. v. United States, 243 U.S. 389..... 16,

58, 83

Virginia Petrc'eum Jobbers Ass’n v. Federal Power Commission,

Se CAE e456 a Ra Rs ea 4S we Ee es es 75

Virginia Ry. Co. v. System Federation, 300 U.S.515 ....... 80

Washington Capitols Basketbati Club, Inc. v. Barry, 419 F.2d

aE kG 6k ks SA a ek Be ee en ee OR ES OE A 71

Washington Department of Game v. Federal Power Commission,

re Rr Soe wh eee ee een ened ecews 55

Weliford v. Ruckelshaus, C.A. D.C., decided January 7, 1971... 43

West Virginia Highlands Conservancy v. Island Creek Goal Co.,

C.A. 4, decided April 6, 1971... . . 42, 55, 71, 73, 75, 78, 79, 80

Westinghouse Electric Corp. v. Free Sewing Machine Co., 256

Wilderness Society v. Hickel, D. D.C., decided April 23, 1970. . 41, 54

Wong Yang Sung v. McGrath, 339 U.S. 33

oS OE a errr

Yakus v. United States, 321 US.414 .............

CONSTITUTION:

Dae a RD, Tg Be a ike vow CK eee RRO

U.S. Constitution, Art. IV, Sec. 3, clause 2

ie Wreck hea Nak ne eae Oe WOE A 71

White Lake Ass’n v. Whitehall, Michigan Court of Appeals, de-

as: ee er er err eer 61

“Wilbur v. United me Bs, re 123

Wilber Nat. Bank v. United States, 294 U.'S.120........... 83

STATUTES.

26 Stat. 1103... 22... 00... . ieee eee eee, 24, 93

26 Stat. 478 occ ccc rete cecnee, 23

26 Stat. G52... eee cc cee cc eeee eee, 23

MStat. 35 cece wees cee nen ee, 94

30 Stat. 729 2... eee ee, 94

30 Stat. 1233... el. 94

31 Stat. 790 2... eee eee eee, 95

33 Stat. 628 2... ll 24

3B Stat. 1101... eee eee ee. 90

> a, eeeeken gus 25

41 Stat. 732 2.2... Sd = eed wate ak wae x . 114

44 Stat. 820... 0. eee ek, 121

MOS. B2E occ ccc eee ccnncce, fiexs 29

TM Stat. 0B... cece eee cat, 92, 99

SUSC. 702 ......... eee. 46, 47, 48

I6USC.1 ..... 2 ll. 20, 25, 33, 43, 5°, 114, 116

IOUSC.3 2. eee ccc e cece ete eee eee le. 20, 118

UMRGD se snw see ae teas cencaye ho cnacsaat 120, 121

1I6USC.8 1... 20... ee re 112, 117

16USC. 20 ..... eee fe. 20, 114, 118

GUSC. 41 oo... cece ccc ec eee, 59, 116

16US.C.43 ........... a 7 20, 33, 59, 111, 113

1l6US.C. 45a-1,2,3 ......0....00...... errr a 111

16US.C.45b......... awe cane de suaecdus 20, 33, 59, 113

16US.C. 45c............ 20, 33, 111, 120, 121, 122, 123, 124

l6USC 45d wll ou hacen 111

MR WSO ese nee ee evens eda ecwecce.s.., 111

vise Li er ann 111.

nidionpuhanl Reet: Cee 111

16bUSC.60 ..........00 003 Se ee ee 111

16US.C.61 .............. ineie. 20, 33, 61, 111, 113, 114

16US.C.62 ..............° [Mh A es & wd ee re baw & 111

PIE aon ec upcislodeds axe gaeediacc.c.... 111

ots ore a nana. 111

OES eee enceeceeddsvecccc. scl, 111

NOUSL. 7B... ewes Seaweed sees eon 111

I6USC.79 2... ieee Sl xe « 111, 12u, 121

16 US.C. 459d

BeMasiicie siete’ CERT ala Whe ODE Be dtp

PAGE

16 UBC. OTN, cee swn ee cacsecaceveseveciece 24, 93

SOURIS nbd cowie we cep isdebeeseceuesawe 32

LS oe ee 90

146US.C.497) ........... 18, 32, 84, 89, 90, 92, 97, 99, 119

16 US.C. 551 . . .19, 33, 43, 59, 84. 89, 92, 93, 96, 97, 102, 110

IG USL. GBS occ cee wnee 13, 18, 29, 32, 43, 59, 84, 86

1G USC. G04 nc ccc cen te cece caccn, 87

IO UB. TGTO cece cee k eect ees aeechaesnes 120, 121

re he OS 116

28 USC. 1254(a) 2... ccc cc cece occ c cence 66

2 NS OS | ke a ee a 49

RE UBRASZL occ cet swisc este dusswet eevee wies 49

BU. GS21-AS2S nk ee oben ec caeew cesses 87

Oe CC S| a rs 49

42 US.C. 4331(b)(4) 2.2... eee, 83

42 USC. ABFA oc ee ec eee enessaceas 49

WP USEC) MOSM) oven ewe aws eens eu nese atbavewss 116

LEGISLATIVE MATERIALS:

51 Cong. Rec. 4771 ww eee 91

67 Cong. Rec. 19143 2 oe... ec ect eee 20, 115

165 Cong. Rec.902) 2... ee ee ee eee 93

Hearings on H.R. 1809 before the House Committee on Agricul-

ture, June 19, 1947, 80th Cong., Ist Sess. ... 2.2.2... 91,99

Hearings on H.R. 9387 before the House Committee on Agricul-

ture, April 7, 8, and 10, 1926, 69th Cong., Ist Sess. ...... 18

Hearings on F..R. 7452 before the House Committee on Agricul-

ture, Degember 13, 1921, 67th Cong., 2d Sess. ......... 121

Hearings on H.R. 10929, January 21, 1919, 65th Cong., 3d

ee ee ee ee eee 26, 111

Hearings on H.R. 13679 before the House Committee on Agricul-

ture, December 12, 1913, 63d Cong., 2d Sess............ 9]

Hearings before the House Committee on Public Lands on H.R.

5006, February 24-26, 1920, 66th Coug., 2d Sess... .. 27-28, 62

Hearings before the Subcommittee on the Environment of the

Senate Committee on Commerce, April 15, 1971, 92d Cong.,

Ist Sess, wc ct tc ce eM ewe cece ee eses 49

_ ese

PAGE

Hearings before he Subcommittee on Forests of the House Com-

mittee on Agriculture, September 27, 1967, 90th Cong., Ist

MONAHAN Hy We Sioa dle de wars vane nied Ads Oates ae 109

Hearings before the Subcommittee on Forests of the House Com-

mittee on Agriculture, April 20, June 13-16, and September r+ Pe

1967, 90th Cong., Ist Sess. ......20. 22 100

H.R. 4095, 68th Cong., Ist Sess. .......0.0.0000002 2 29, 86

H.R. 7452, 67th Cong., 2d Sess. ........0....00...... 29

H.R. 9387, 69th Cong., Ist Sess. ........0.000000002 2 29

H.R. 13168, 64th Cong., Ist Sess... 25

H.R. 13679, 63d Cong., 2d Sess. ....0...0.000000~0~2 ~~! 91

H. Rep. No. 583, 67th Cong., 2d Sess. ............ .. 123

H. Rep. No. 902, 69th Cong., Ist Sess. 2.2... 2. 0 29

H. Rep. No. 2179, 87th Cong., 2d Sess... 2.0... 117

H. Rep. No. 2792, 84th Cong., 2d Sess. (1956) ......, 92, 97, 100

S. 463, 47th Cong., Ist Sess. ee ee ee ee 23

S. 2216, 84th Cong., 2d Sess. 22.2... 92

S. 10895, 61st Cong., 3d Sess. ... 0... le eeee us 25

S. Rep. No. 243, 73d Cong., 2d “ess. (1934) 22... 0... 87

8. Rep. No. 1495, 85th Cong., 2d Sess. (1958) ........... 114

S. Rep. No. 2511, 84th Cong., 2d Sess. (1956) ...... 92, 97, 100 E

EXECUTIVE MATERIALS: i

16 Att'y Gen. 152 22... ee ee :

16 Att'y Gen. 205 2... 103 ;

19 Atty Gen. 628 0.0... 103 i

20 AttyGen. 93 108 4

20 Att'y Gen. 527 2 103 '

21 Att'y Gen. 537 «26. 103, 108 ;

21 Att'y Gen. 565 2... 104

22 Att'y Gen. 240... 104 | j

25 Att'y Gen..470 6... 96 ;

29 Att'y Gen. 205 20. 104, 108 ‘

30 Att'y Gen. 263 95, 96

30 Att'y Gen. 470 20 104, 108

M4 Att'y Gen. 320.0... 105

35 Att'y Gen. 485.22 104, 108, 110

ee ee 105

ee 8 eee ee eee ee ee ee eee 105

ee I OE ke Fav O86 oe 8 Oe KS Fe Sosa es 105

yp Ge * Peee Peer eee Ee ee ETT ET ee Eee 105

re ON I UE 6 6 kta 0s we 8 ie Re ee 88 os os 105

Exec. Order No. 11514(13), 35 Fed. Reg. 4247 ........... 49

Forest Service Manual, Section 2716.3(1) ............... 97

Forest Service Manual, Section 1571.01 ..............4.. 97

Forest Service Manual, Section 2711.2(5) ............... 100

Forest Service Manual, Section 2711.14................. 107

Forest Service Manual, Section 2716.3.2................. 107

Park Road Standards, U.S. Department of the Interior, National

TO CR, TE TIO Kk ee ee vi edn n ss concer 117

MISCELLANEOUS:

Atlantic Monthly, January 1898 ...............04-- 24, 84

3 Barron & Holtzoff (1958) ........ 0.2 ee eee ee eee eee 73

Boston Evening Transcript, January 22,1919 ............. 26

Century Magazine, Nov. 1891 ......... 205 c cee eeeeces 23

Davis, The Liberalized Law of Standing, 37 U. of Chi. L. Rev.

a re eon ee ee aT ' 40

Developments in the Law: Injunctions, 78 Harv. L. Rev. 994

OS is ere es ae eee ee ee ees ee eA 73

Farquhar, Francis P., “Legislative History of Sequoia and Kings

Canyon National Parks,” 26 Sierra Club Bulletin 42 (1941)...25, 117

First Annual Report of the Council on Environmental Quality,

| i, SEPT eT Tee Te eee Te ee Te eee Te Te 61

Leadabrook, Russ, A Guidebook of the Southern Sierra Nevada

Including Sequoia National Forest, Los Angeles, California,

TOU 4 a Ae eo 4 Ooh Ge ee 5S cones awe eee eee eae 22, 23

Mineral King—A Planned Recreation Development, Forest Serv-

ice, U.S. Departmen: of Agriculture, February, 1969 ... 4,21

7 Moore, Federal Practice (2d ed. 1968).......... 68, 76, 80, 81

National Parks Association Bulletin #23, December 14, 1921.... II!

National Parks Association Bulletin #34, July 6,1923 .......- 85

. (xvii)

PAGE =

1964 National Power Survey of the Federal Power Commission. . 122 F

Restatement of Trusts .............0..0..0....... 16, 59 .

Rule &(f), Federal Rules of Civil Procedure............... 64 ;

Rule 15(a), Federal Ruies of Civil Procedure ............. 65 t

Sax, The Public Trust Doctrine in Naiural Resources Law: |

Effective Judicial Intervention, 60 Mich. L. Rev. 471 (1970)... 59 ;

Sequoia and Kings Canyon National Parks Natural Sciences ,

Research Plan, edited by Lowell Sumner, Department of the fe

Interior, April 1966... 2.2... 85 :

Sequoia and Kings Canyon, National Park Service Pamphlet E

(rev. 1968)..........0.0... bGawen eye ee eeeae nas 111 é

Sierra Club Handbook (1969) .................. 24, 56, 62 é

1] Sierra Club Bulletin’ ......................... 29, 85 i

12 Sierra Club Bulletin ........................ 62, 123 ‘

Sierra Club Bulletin, January 197i ........ 2.0... ._37 .

Sierra Club Bulletin, February 1971 ......._.. alee, 37 f

Strong, Douglas Hillman, Trees or Timber: The Story of Se- i

quoia and King’s Canyon National Parks, Sequoia Natural

History Association, 1964. .........,........ 25, 29, 85

White, John and Pusateri, Samuel, Sequoia and King’s Canyon

National Parks, Palo Alto, California, 1949 ............. 22

Wolfe, Zinnie Marsh, Son of the Wilderness: The Life of John

Muir, New York 1945 .........0..0.............. 23

ERE, BND HR PRE Navies Atte ate ge sUsirE HY ner ne

PVPS

abet i

Saat ae Tate hea ae tere

IN THE

Supreme Court of the United States

OCTOBER TERM, 1970

No. 939

SIERRA CLUB,

Petitioner,

Vv.

ROGERS C. B. MORTON, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TQ THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE WILDERNESS SOCIETY, IZAAK WALTON

LEAGUE OF AMERICA, AND FRIENDS OF THE

EARTH AS AMICI CURIAE

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit (R. 208-235) is reported at 433 F.2d at 24.

The opinion of the United States District Court for the

Northern District of California (R. 186-199) is not reported.

- . ——— - ne Guimaraes emennne eens ” ee

PAYOR BLP LEY PRG LOPLI SEI AOA LEAST ET EIT TLE Ss ‘ ASMA ER Ie ales Te

: Ta Fe SU cae ; y .

SHELA NEEL PTI CUO PTE UES

OA PERLITE

JURISDICTION

The judgment of the Court of Appeals was entered on

September 16, 1970. The petition for a writ of certiorarj

was granted on February 22, 1971. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the Sierra Club has standing to sue to prevent

damage to Sequoia National Game Refuge, Sequoia National

Forest, an:: Sequoia National Park under statutes designed to

protect these areas as:

a. A national conservation organization whcse purpose

is to protect the environment;

b. A local conservation organization with a long history

of interest in protecting the Sierra Nevada Mountains and

particularly these specific areas;

c. Representative of its members who have standing to

protect public lands held in trust for them; or

d.' A user itself of these areas and representative of its

members who are users.

2. Whether the court of appeals erred in reversing the

district court’s grant of a preliminary injunction by requiring

plaintiff to show a reasonable ceriainty that it would prevail

and finding no irreparable injury despite the threatened start

of construction of a large resort, highway, and electrical

transmission line.

3. Whether defendants are violating Federal statutes by

allowing the construction of a large resort and connecting

highway and electrical transmission line in Sequoia National

Game Refuge, Sequoia National Forest. and Sequoia National

Park. More specifically whether defendants may—

a. Issue a permit to build a large resort on 13,000 of

the 15,000 acres of land in Sequoia National Game Refuge

even though Congress has provided that all uses of the refuge

must be consistent with its purpose to protect wildlife.

b. Issue a permit for 13,000 acres of land,in a national

forest for a resort even though Congress has imposed an

80-acre limit on term permits for resorts and the permit is

not genuinely revocable eitler in law or in fact.

c. Authorize a major highway to be constructed across

Sequoia National Park which will harm the park and will be

used to allow visitors to come to a commercial resort outside

the park.

d. Authorize an electrical transmission line across

Sequoia National Park even though Congress has specifically

required Congressional approval before any transmission line

can be uuilt in the park.

INTEREST OF AMICI CURIAE

All three amici curiae are major, national _conservation

organizations with deep and well-established interests in

protecting America’s great scenic :tsources. They are

increasingly relying upon litigation as a principal means of

carrying out their purposes. |

The Wilderness Society is a nonprofit citizens’ organization

with arproximately 70,000 members. It was organized in

1935 to obtain protection for the Nation’s remaining wild-

lands, to carry on education programs concerning the wilder-

ness, and to conserve our national resources.

Friends of the Earth is a nonprofit organization with

22,000 members and is dedicated to the preservation, restora-

tion and rational use of the environment in the United States

‘and throughout the world. It is particularly interested in

presex ving the world’s natural ecosystems and remaining wild

nlaces.

The Izaak Walton League of America is a nonprofit organi-

zation with approximatelv 55,000 members. Its primary goal

is restoring and maintaining the quality of the environment

through the protection and wise use of our natural resources.

Both the petitioner and respondents have consented to

the filing of this brief.

STATEMENT OF FACTS |

The Forest Service of the Department of Agriculture began

to make plans for the development of Mineral King in the

1940’s (R. 42. 44, 47). In February 1965 the Forest Service

issued a prospevius for recreational development of Mineral

King (R. 26).

In December 1965, the proposal submitted by Walt Disney

Productions, Inc., was selected by the Forest Service from

the six bids received (R. 27). On January 10, 1966 (R. 27),

the Forest Service granted Disney a three-year planning

permit (R. 166, 176).

The Secretary of the Interior “with great reluctance”

(R. 139; see R. 65, 136), on November 11, 1968, authorized

the State to build a highway across Sequoia National Park to

the resort to be constructed in Mineral King (R. 37, 136,

137). The actuai permit has not been issued pending develop-

ment and approval of a specific highway design (R. 182).

On January 21, 1969, the Forest Service approved the plan

of Walt Disney Enterprises and stated that a thirty-year teim

permit for 80 acres and a revocable permit for additional land

would be issued as soon as the State of California executed

the first contract for construction of a significant portion of

the new highway to Mineral King (R. 27-28, 166). In Febru-

~ay 1969, a publication of the Forest Service entitled

“Mineral King—A Planned Recreational Development” stated

that “‘under an annual permit [Disney] will be permitted to

construct lifts and trails throughout about 13,000 acres”

(R. 31).

When the Sierra Club learned that the Secretaries of Agr

culture and Interior were seriously considering a large devel-

opment (R. 26, 41, 46), Dr. William E. Simm requested on

June 7, 1965, on behalf of the Sierra Club Board of Directors,

a hearing upon the proposed development (R. 26, 47). This

maa as ren sts

request was denied (R. 48). On August 7, 1965, a Sierra

Club staff member, J. Michael McCloskey, reiterated the

request for a hearing because of the special national char-

acteristics of Mineral King and the size of the proposed

development, the fact that Mineral King should be treated

as primarily a game refuge, the Opposition to the proposed

development and the lack of any hearing since 1953, and

the important questions of Public policy involved (R. 41-

44). This request and a Subsequent request by telezram

on November 3, 1965 (R. 46), were both denied (R. 26).

In view of the imminent start of construction of the

resort and highway (R. 8, 184, 79), the Sierra Club brought

suit in the United States District Court for the Northern

| District of California on June 5, 1969, seeking to enjoin

defendants Hardin, Deinema, and James from taking any

actio.. toward implementation of the Disney development

(R. 10) and defendants Hicke] and McLaughlin from authori-

zing Or approving design standards, rights of way, or construc-

tion of the proposed highway (R. 11).

The district court, upon the basis of affidavits from plain-

tiffs and defendants and after hearing two days of argument

(R. 200), decided that there were substantia] questions as

to whether defendants had exceeded their statutory authority

and that irreparable injury wouid result -if an ‘injunction

were not issued (R. 199-200). The court therefore issued

a preliminary injunction prohibiting defendants from granting

any permits, rights-of-way or approvals of the Disney devel-

opment or the highway across Sequoia National Park provid-

ing, however, that investigations, planning, surveys and

explorations which did not interfere with the terrain could

continue (R. 200-201).

The court of appeals reversed, holding that the Sierra

Club did not have standing to sue (R. 213-224) and that the

defendants had not exceeded their statutory authority

(R. 224-234). ithe court vacated the preliminary injunction

(R. 234) but Stayed issuance of its mandate pending disposi-

tion of the petition for a writ of certiorari.

Sa AB

Beasts.

a eee ee a

The Mineral King Area

The Sequoia National Game Refuge was created in 1926

encompassing the Mineral King Valley (R. 42). The refuge

is a 15,000 acre portion of the Sequoia National Forest

bounded upon three sides by Sequoia National Park (R. 26).

Mineral King is described in the record as (R. 53a, 4142):

Unsurpassed in natural splendor, Mineral King is

perhaps more similar to. the European Alps than

any other area in the United States. Altitudes range

from the 7,900 foot valley to surrounding mountains

that reach the 12,400 foot level. The High Sierra

wonderland, located in Sequoia National Forest, is

generously endowed with lakes, streams, cascades,

caverns and matchless mountain vistas.

* * * * *

Although their scenic and ecological features are

reminiscent of many other Sierra regions, Mineral

King and environs are unique. They are unlike any

other roadhead that we have ever visited. Where else

in the Sierra does a primitive roadhead reach to the

headwaters of a major river (east Fork of the

Kaweah)? Where else does a road provide such

direct access to so many alpine passes (five or

more)? Yet the two mile long valley is essen-

tially unspoiled. . Mineral King’s U-shaped basin is

rimmed with 12,000 footpeaks rising 3,000 to

4,000 feet above the valley from whose flank

streams, cascades, and torrents tumble into the

narrow floor, which is mainly a flood plain and wash

for the river. A number of lakes are within less than

a two-hour walking distance of the valley, which isa

trail center where at least seven routes radiating in all

directions open. up the southern part of Sequoia-

Kings Canyon National Park, Sequoia National Forest,

the magnificent Big Kern Sierra to the west, and the

Little Kern territory below Forewell Gap. The ms

- sive self-contained ecological unit of Mineral King

itself (protected in a National Game Refuge) and the

surrounding country are one of the finest wilderness

type areas we have ever seen.

The Walt Disney Ski and Summer Resort

The solicitation to bid for the development of Mineral

King called for bids for a facility including four ski lifts,

parking for 1,200 automobiles, overnight accommodations

for 100 skiers, and an estimated investment of 3 million

dollars (R. 27). In contrast, Walt Disney Enterprises plans

to buildxa year-round recreational facility. It will cover

13,000 (R. 31, 229-230) of the 15,000 acres (R. 26, 81) in

the national game refuge. When fully developed, 1.7 million

visitors are expected annually (R. 53a) and as many as

14,000 daily, which is nearly twice the concentration of

visitc-s as in the Yosemite Valley (R. 28).

Walt Disney Enterprises plans initially to invest 35 million

dollars to construct an alpine village with shops, theater,

convention center, hospital, accommodations for 3,310

visitors, twenty-two lifts and gondolas, ten restaurants, an

avalanche dam and stream Control facilities, riding facilities

with at least fifty horses, a five-story parking facility for

3,600 vehicles, and refuse and sewage facilities (R. 27, 31,

53a-53b, 126, 130-131, 134). The ski lifts, ski trails, park-

ing facility, refuse and sewage disposal facilities and service

toads will be on the land subject to the annual permits (R.15,

23, 31, 191-192, 229-230).

The development will require “extensive bulldozing and

blasting in most lower areas and extensive rock removal at

high elevations” and the “grooming and manicuring” of

most slopes (R. 32). There will be “a need for land modifi-

cation, earth moving, and possibly stream channel changing

beyond what we [the Forest Service] might normally permit”

and “a great deal of earth and debris moving” (R. 128).

These are only present plans since a brochure of Walt

Disney Productions Says (R. 53a, 28):

All of us promise that our eiforts now and in the

future will be dedicated to making Mineral King

grow to meet the ever-increasing public need. [

guess you might say that it won’t ever be finished.

RE ROLE TN SETA Oe RRR RE TIT

aiid hail

PEBemkina sce Pas ROOT a ABE

Numerous government officials have stated their strong

concern about the effect of the development. Mr. JC

Fraser, Chief Water Projects Branch, California Department

of “ish and Game, has said in a letter (R. 30, 76):

Your fourth question regards the potential effect of

development in the Mineral King Game Refuge on

game. This Department has not made specific

studies nor prepared reports regarding the effects of

this development on wildlife. We can say, however,

that in an extensive development such as the Disney

proposal, considerable wildlife habit would be lost

and wildlife would suffer from human encroachment.

The Director of Wildlife Management of the Forest Service,

W.O. Hansen, has expressed concern about the effects of the

planned riding concession—“‘It appears that this could cause

serious problems in sanitation and esthetics”; sewage disposal,

“I would question whether the soil can adequately handle the

effluent”; and check dams to collect debris, “What is the

source of the debris? Will it result from timber cutting on

the ski runs” (R. 126). He has said that “I would hope that

we study the impacts of this concession for a long time

before permitting another one’’ (R. 126).

Mr. R.M. DeNio, Director of Range Management of the

Forest Service, has written: “‘To what degree has the con-

patibility of planned horse programs with resource needs

been determined? The projected use by people, in itself,

will have a very real impact on these fragile soils and

vegetation without the additional effect of horse use” (R.

127). Mr. DeNio concluded, ‘“‘There is a real need for basic

consideration of soils and vegetation” (R. 127).

The Chief of the Forest Service Division of Recreation,

Mr. W.S. Davis, has written to the Sequoia National Forest

Supervisor (R. 34, 192):

The impact is certain to be heaviest at the village

site and on the valley floor. By accepting the

development proposal we have also accepted that

some effect on fishery values, streamflow, vegeta-

tion, soils, and other resources must be provided for.

The Range and Wildlife Management Section of the F orest

Service stated in a memorandum to the Recreational Section

of the Forest Service (R. 130):

We have reviewed subject report [on Preliminary Site

Studies Proposed Development of Minera] King] ....

We feel tie report is rather superficial, and the inves-

tigations it covers apparently very general and sketchy.

Consequently we find many of the assumptions made

and conclusions reached are inadequately founded

and unacceptable.

After citing problems with streamflow release, channel diver-

sions, and the ‘‘Valley Debris Dam” (R. 130), the Range and

Wildlife Section concluded (R. 131):

The total basic concept of development appears badiy

biased in orientation toward a highly artificial, con-

tinued situation, without any real attention to ecologi-

cal factors and needs to multiple use management.

The extent and nature of alterations of the basin is

unacceptable to us—the damages extend beyond

effects on fish and wildlife, and these alone are

critical.

Specifically, stream diversion and channel treatment,

flood and debris control, surface water Supply devel-_

opment, and sewage disposal proposals are all of a

nature we find severely damaging or unacceptable.

It is recognized that development of high intensity

year-round recreational use in this restricted fragile

Sub-alpine area is bound to result in pronounced

impacts and certain unavoidable changes.

The Highway Across Sequoia National Park

Mineral King is now reached by a road running from

Three Rivers, California, and across part of Sequoia National

Park (R. 60, 63). It is a low standard road constructed to

support the mining activities of the 1870’s (R. 28). The

Toad is approximately 25 miles long and according to the

Pye Sf

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California Division of Highways, “consisting of extremely

substandard alignment and grades. There are a number of

switchbacks with radii of less than 50 feet” (R. 60). A

study done for the Park Service by the Clarkeson Engineering

Company says that “it is a widened trail which winds up

the mountain, has grades in excess of 15% [and] is narrower

than two lanes in many areas” (R. 144). “Most of the surface

is Oiled dirt with several sections consisting of only a graded

roadbed” and it now has an average of only 95 cars daily

(R. 60).

The California Division of Highways estimates that by

1978 the traffic to the Disney resort will have an average

daily volume of 4,550 vehicles, with the average daily

volume during the peak summer months being 9,850

vehicles (R. 60). The present road is not adequate to

accommodate the anticipated traffic load (R. 79, 144).

Consequently, the permits to construct the resort at Mineral

King were contingent upon the construction of an all-weather

high-speed highway from State Highway 198 to Mineral

King (R. 161, 167, 187). The highway is designed to serve

Mineral King rather than Sequoia National Park (R. 54, 58,

140, 143, 194) since there are no plans to develop the area

of the park through which the highway passes (R. 36).

The State of California has authorized the construction

of the new highway with state highway funds (R. 140, ‘61).

The central portion of the road will cross a six-mile width

section of Sequoia National Park but, due to the terrain of

the area, 9.2 miles of road will be needed (R. 54, 62-63, 55,

161). The highway will require “‘extensive cutting and filling

accompanied by extreme back slopes and embankment slopes

to accomplish a steady earthwork condition” (R. 150). The

roadbed itself will be 28 feet across but in some areas the

embankment slopes will extend 800 to 1,000 feet across

(R. 148).

The California Division of Highways has stated that the

new road will be almost entirely different from the old

(R. 61):

Several corridors were initially considered but based

on reconnaissance studies, it was concluded that feasi-

ble development of an all-weather highway to Mineral

King is possible only in the corridor of the east fork

of the Kaweah River. The existing country road to

Mineral King generally parallels this water course;

however, very little of the existing roadbed can be

incorporated into the proposed all-weather highway.

Although the Park Service’s consultant, the Clarkeson Engi- |

neering Company, proposed a route that would incorporate .

“approximately two-thirds of the old road” (R. 145), the

Park Service chose the Division of Highway’s route instead

of Clarkeson’s (R. 138).

The highway is planned as two lanes with extra safety

lanes for passing at frequent intervals (R. 54, 61). The

passing lanes are the subject of a dispute between the Park

Service, on the one hand, and the Forest Service and Cali-

fornia Division of Highways, on the other. The latter two

agencies favor passing lanes so that vehicles would have to

wait no more than five minutes in a queue without an oppor-

tunity to pass and that peak capacity would be 1,200 cars

per hour in one direction (R. 39, 61, 79). The Park Service

objects to the passing lanes in Sequoia National Park and ;

questions whether 850 cars per hour in one direction can be — :

adequately accommodated on the proposed highway even

with the passing lanes (R. 136-138, 155-157).

The Park Service fears it will be pressured to permit

expansion of the road to four lanes (R. 136-137). Secretary

ot the Interior Udall wrote Secretary of Agriculture Free-

man in 1968 that (R. 136):

PERRY

eet ee ae

In addition to our desire to minimize the damage to

park values of the road, we are concerned about

what we have been told concerning the size of the

planned Disney development. Will one two-lane

road of park standards be adeauate or wiil Interior

later receive a request for another road?

John Clarkeson, a consultant to the Park Service, has stated

that “‘[u]nless some control or other is considered, this two.

lane road does not look at all adequate for a 14,000 a-day.

visitor load when so many will be one-day visitors” (R. 157),

Clarkeson also concluded (R. 142-143):

[T]he road, if primarily based on cut and fill con-

struction [instead of following the terrain as the

existing road does] would be a barrier to wildlife

and visitor movements throughout this area of the

park. Animals and men would have to cross the

road to the risk not only of such persons and wild-

life, but also to users of the highway.

Among the wildlife species of this area are deer,

wolf, mountain lions, beaver; bear and big hom

sheep. The retention and control of these species

would be affected if relatively free movement up

and down their slopes was not maintained.

The Park Service has also expressed fears about the

impact of the road upon the floor of the park, especially

upon the sequoia trees (R, 62, 67). The California Division

of Highways therefore hired Dr. Richard Hartesveldt to

assess the impact of the proposed road (R. 62, 67). He

found that 45 sequoias ‘‘are in a position of possible jeop-

ardy because of road construction” (R. 85, 123).

The Secretary of Interior originally was extremely reluct-

ant to approve the highway across Sequoia National Park

and urged that an alternative be explored (R. 65, 136, 139).

The California Division of Highways studied two alternatives,

| but found them too expensive (R. 66). Secretary Udall later

acquiesced and gave permission for the highway based on

the assurance that protection of the park would be given

adequate consideration (R. 62-63, 137-139).

The Electrical Transmission Line Across Sequoia National

Park.

A 66,000 volt power line across Sequoia National Park to

Mineral King is planned in order to serve the power needs of

the resort (R. 40). The line will generally follow the pro-

posed road alignment (R. 40) and will therefore cross about

9.2 miles of park land (R. 65).

SUMMARY OF ARGUMENT |

Plaintiff, the Sierra Club, has standing if “the challenged

action has caused [it] injury in fact, economic or otherwise”

and if “the interest sought to be protected .. . is arguably

_ within the zone of interests to be protected or regulated by

the statute” Association of Data Processing Service Organiza-

tions, Inc. v. Camp, 397 U.S. 150, 152, 153 (1970).

A. There can be no doubt that the Sierra Club satisfies

the second requirement. The statutes upon which plaintiff

relies were designed to protect Sequoia National Game

Refuge, Forest, or Park. For example, !16 U.S.C. 688 allows

the Secretary of Agriculture to permit use of lands in the

game refuge only ‘‘so far as they may be consistent with

the purposes” of the refuge “to protect from trespass the

public lands of the United States and the game animals

which may be thereon.” . Since plaintiff is a conservation

organization attempting to protect the wildlife, scenery,

trees, and other aspects of the refuge, forest and park, its

interests are within the zone of interests protected by the

statutes.

B. The injury required for standing requires “such a

personal stake in the outcome of the ‘controversy as to

assure that concrete adverseness which sharpens the presen-

tation of issues upon which the court so largely depends for

illumination of difficult constitutional questions.” Baker

v. Carr, 369 US. 186, 204 (1962). The plaintiff’s interest

“may reflect ‘aesthetic, conservational, and recreational’ as

well as economic values.” Association of Data Processing

Service Organization, Inc. y. Camp, supra, 397 US. at 154.

The Sierra Club has suffered injury of the kind which gives

—_— rd

ae a OF ee. gee 4

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—— ao

it a personal stake in this controversy and which assures

concrete adverseness.

1. First, the Sierra Club has standing as a national con-

servation organization interested in protecting the environ-

ment. The Sierra Club has a long history of attempts to

protect the environment. It is today one of the largest

conservation organizations in the country and is currently

involved in 38 major suits all over the country. Ever since

1965 when it first sought a public hearing, it has been

opposing the development of Mineral King. Since the plain-

tiff obviously has the concrete adverseness needed to sharpen

the issues far more even than an ordinary individual plaintiff,

the constitutional requirements of a “‘case”’ or “‘controversy”

are fully met.

Recognition of the standing of a national conservation

organization is also consistent with the non-constitutional

policy considerations which the courts have recognized in

cor ctidering standing. There is no indication that the handful

of cases which can be brought by naticunal conservation

organizations will overburden the courts. Since these

organizations often have a broader ~utlook, they may be

more careful in bringing actions and may thereby often

lighten the burden of the courts by not bringing less well

prepared or meritorious actions.

The courts have often considered whether there was any-

one else with a better claim to standing than the plaintiff.

While, in this case, local users of the area could bring suit,

in many conservation cases this situation does not exist.

There is frequently no present use (such as a suit to preserve

the wilderness) or no use is possible (such as a suit to protect

eagles). Even where there are users, they may be unwilling

to sue such as nearby residents who desire the development

of an area because of the economic benefit which will result.

Yet, the national game refuges, forests, and parks must be

preserved even if local residents desire to develop them.

National conservation organizations should have standing to

sue to protect these areas which Congress reserved for the

benefit of the entire country.

15 |

The standing of national conservation Organizations is

further supported by federal statutes and judicial decisions.

The Administrative Procedure ct has been repeatedly con- >

strued by this Court and lower federal courts to expand &

both the concepts of standing and reviewability. The National

Environmental Policy Act declares, as the policy of this

country, the protection of the envinonment. The President’s

Council on Environmental Quality which is charged with

enforcing the Act, has concluded:

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 provisious of the

National Environmental Policy Act, or of other

legislation designed to protect the environment, the

interposition of the Government of the defense if

lack of standing is inconsistent with the federal

environmental policy, as exemplified in the National

Environmental Policy Act and in other legislation.

And the Ninth Circuit position is inconsistent with that of

every other circuit and district court which has considered «

the issue.

2. Second, the Sierra Club has standing as a local conser-

vation organization particularly interested in protecting

Sequoia National Game Refuge, Forest, and Park. Numer- ;

ous decisions, including that of the court below, recognize &

the standing of local conservation organizations. While the

court of appeals did not find the Sierra Club to be such an

organization, it is clear that the Sierra Club is both a

national organization and a local organization with particu-

lar interest in the Sierra Nevada Mountains. Its headquarters E

is in San Francisco and 27,000 of its 78,000 members live

in that area. John Muir and the Sierra Club were in large i

measure responsible for the creation of Sequoia National

Park, its enlargement, and establishment of the game refuge.

The Sierra Club’s Opposition over the last six years to devel-

opment of Mineral. King is a continuation of tris activity.

REPELS ens nT 82

- — :

bint clr dh MAD PRR hc BOE.

3. Third, the Sierra Club has standing to represent the

interests of its members in protecting lands in national

game refuges, forests, and parks. The federal courts have

held that such lands are held in trust for all the American

people. E.g., Utah Power and Light Co. v. United States,

243 U.S. 389, 409 (1917). When a trustee does not defend

the trust property, the beneficiary is entitled to bring suit

to protect his interests. Restatement of Trusts, Sec. 282

All American citizens therefore have the right to sue to

prevent despoilment of lands held in trust for them.

This Court has held that organizations can bring suit “as

proper representatives of the interests of their members.”

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

U.S. 246, 247 (1963). The district court found that the

Sierra Club was “regularly serving as a responsible repre-

sentative’ of persons interested in conservation. It there-

fore had standing to represent the interest of its members

in protecting their rights in the invaluable land held in

trust for them.

4. Fourth, numerous courts, including the court below,

recognize the standing of users of an area for one to_protect

it. The Sierra Club itself is a user of the refuge and park

since it runs a camping trip into the area yearly. Many of

its members are also users and, as we have seen, the Sierra

Club has standing to represent thei. interests.

The court of appeals erred in reversing the grant of a

preliminary injunction by the district court. The district

court has broad discretion to issue a preliminary injunction

and an appeliate court will not normally reverse without a

clear showing of an abuse of discretion. Here, the district

court properly exercised its discretion.

A. The court of appeals held that a preliminary injunc-

tion can issue only upon a strong likelihood or reasonable

certainty that the plaintiff will prevail on the merits. The

overwhelming majority of decisions of both this Court and

the courts of appeals require only that plaintiff raise a serious

or substantial questioin. While a minority of decisions require

a strong likelihood or reasonable certainly that the plaintiff

will prevail, most of these cases involve situations where no

irreparable iniury was threatened. Here, therefore, the dis-

trict court properly issued the injunction because substantial

and serious questions were raised.

B. The court of appeals plainly erred in finding that no

irreparable injury was threatened. This is the classic case

where an injunction is required to maintain the status quo

pending determination of the merits. If the injunction had

not been issued, construction of the highway and resort would

have begun with serious harm to the national game refuge,

forest, and park. On the other hand, the only harm to defend-

ants and the interests they represent from the preliminary

injunction is the delay from not being able to start construc-

tion immediately. The district court properly found that the

balance of harm favored the issuance of the preliminary

injunction.

III

If this Court holds that the district court’s issuance of

the preliminary injunction was proper, it is clear that the

court of appeals’ determination on the merits is not binding

on remand. Nevertheless, since the court of appeals in effect

decided the merits, it is likely that its views will prevail on

remand either by influencing the district court or by form-

ing the basis of a new decision on appeal. In view of the

fact that this Court has granted certiorari on the merits and

the legal issues have already been considered by the courts

below, we urge this Court to consider the legal issues in

order to give appropriate guidance to the district court on

Temand.

Article IV, Section 3, clause 2 of the Constitution gives

Congress exclusive authority over the disposition of federal

| a be AS ane aa

—

ble CARY:

land. The executive agencies have no power to dispose of

land except insofar as they receive authority from Congress.

Defendants must therefore demonstrate clearly their authority

: in permitting construction of the resort, highway, and

4 transmission line.

3 A. The Secretary of Agriculture has no authority to issue

either a term permit or revocable permit which will convert

Sequoia National Game Refuge into a ski and summer resort.

Congress has provided in 16 U.S.C. 688 that all uses of the

: refuge shall be consistent with its purpose “to protect from

trespass the public lands of the United States and game

animals which may be thereon... .” The refuge was

created for the purpose of protecting the deer and other

animals which make Mineral King and surrounding areas

their home. The Forest Service promised, in supporting

creation of the refuge, that even “grazing ought to be

excluded from the game refuge area... .” Testimony of

Chief Forester Greeley, Hearings on H.R. 9387 before the

House Commitiee on Agriculture, April 7, 8 and 10, 1926,

69th Cong., Ist Sess. 57-58.

The permit to a'low construction of the resort in Mineral

King violates the language and purpose of Section 688. It

would mean that 13,000 of the 15,000 acres in the refuge

would be used for the resort. As many as 14,000 visitors

and 4,550 automobiles a day would come to the area.

There would be accommodations for 3,310 visitors, 22 ski

lifts, 10 restaurants, and numerous other facilities. And

there will be bulldozing, blasting, and manicuring of slopes

throughout the area.

B. The Secretary of Agriculture has no authority to per

mit construction of a resort on 13,000 acres of a national

forest.

1. The granting of a so-called sevocable permit for 13,000

acres is an attempt to circumvent 16 U.S.C. 497 which allows

the Secretary to grant 30-year term permits for 80 acres

for resorts. Congress increased the acreage limitation

from 5 to 80 acres in 1956 specifically because major resort

a hae nite

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activities, including ski lifts, could not be encompassed with-

in 5 acres. The Secretary cannot now ignore tne acreage

limitation simply by calling the permit for major, permanent

facilities revocable.

2. 16 U.S.C. 551, upon which the court of appeals relied

in upholding the Secretary, allows him only to make rules

and regulations to protect the forests. This Court has held

that it gives authority only over matters of “‘administrative

detail.” United States v. Grimaud, 220 US. 506, 516

(1911). Congress, judicial decisions, and opinions of the

Attorney General (with only one exception) have made clear

that a special statute was needed to permit construction of

railroads ai.d electrical and telegraph lines across national

forest lands and that Section 551 did not give this authority.

It therefore follows a fortiori that the Secretary has no

authority to permit construction of a major resort.

Defendants rely on administrative practice and a single

sentence from a recent Congressional committee report.

However, administrative practice cannot be relied upon here

because it was not contemporaneous with passage of Section

551, has not been consistent, and has not even been embodied

in any regulation or written policy. While Congress has been

informed that the Forest Service issues revocable permits,

it has been told, as the Forest Service Manual states, that

this is only for temporary uses.

3. The Secretary aiso has no inherent authority to issue

the permit in this case. While numerous opinions of the

Attorney General establish that federal officials can give

revocable licenses for the construction of railroads, sewers

and similar facilities across feder2l lands, the permit here is

not revocable. It cannot be revoked in the full discretion of

the Secretary since the permit for the 13,000 acres contem-

Plates that it will last as long as the 30-year term permit for

80 acres; since administrative and probably judicial review

would be available to the developer if revocation were

attempted; since major siructures are to be built which in

fact are intended to remain; and since the land cannot be

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restored, even if the structures were removed, to its previous

condition.

C. The Secretary of Interior has no authority to allow a

major highway to be constructed across Sequoia National

Park.

1. Congress has made clear that the purpose of the

national parks in ge ral and Sequoia National Park in

particular is to provide enjoyment by the public of the

parks and to protect the trees, beauty and other natural

characteristics. 16 U.S.C. 1, 20, 43, 45b, 61. When Con-

gress enlarged the park in 1926, the sponsor of the bil

stated that it would be retained ‘as a trail park and that

roads would not be built through it. 67 Cong. Rec. 19143.

_ The proposed road is an entirely new, high-speed highway.

It will carry an average of 4,550 automobiles a day, will be

often three lanes wide, and will have embankments up to

800 to 1000 feet across. It threatens the free movement of

wildlife and at least 45 giant sequoias. It is therefore

inconsistent with the intent of Congress in enlarging and

protecting the park.

2. Congress has also made clear that the park lanc is to

be used Jor the enjoyment by the public of the park itself.

16 U.S.C. 1, 466. All park facilities and service must serve

visitors to the park. 16 U.S.C. 20, 3. Congress has stated,

in creating another national park, that the Secretary of

Interior does not have the function of building highways

through the park to serve non-park purposes and the

Department of Interior has itself issued Park Road Standards

stating that park roads should not be built for such pur

poses. The proposed highway cannot be authorized beaux

it is designed to connect a state highway with the commercial

resort in Mineral King and not to serve the park.

D. 1. 16 USC. 45c specifically prohibits the Secretary

of Interior from allowing an electrical transmission line to

be constructed across Sequoia National Park without the

approval of Congress. While the principal purpose of the

provision was to cover hydroelectric projects, the statute

explicitly went further. This Court has often held that

federal statutes are to be construed according to the plain

meaning of their language.

2. The electrical line may also not be constructed because

it serves only a non-park Purpose. Since it is intended to

serve a commercial resort, it may not be built across Sequoia

National Park for the same reasons a highway cannot be

built for a non-park purpose.

ARGUMENT

Introduction

1. Description of the Area

The area which is subject to this suit is cominonly called

Mineral King. It is part of both the Sequoia National Game

Refuge and of Sequoia National Forest. Mineral King is not

only virtually surrounded, as the map on the next page shows,

by Sequoia National Park but is integrally related to the park

in terms of topography and nature.

Mineral King is much more than just a “unique combi-

nation of eight alpine bowls” as it is described in the Forest

Service Fact Sheet which attempts to justify turning it into

a ski resort.! It “is a two-mile-long valley rimmed by cliffs

and cirques from which Streams and freshets explode and

cascade and tumble. It is a spot that has known the mark

of man for nearly a hundred years and yet it is still unspoiled.

The wild rugged beauty still exists as it must have been when

the first Prospectors poked into the deep ranges in the

' Mineral King—A Planned Recreation Development, Forest Service,

U.S. Departicat of Agriculture, February, 1969, p. 1.

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1870’s.”? As John White, retired superintendent of Sequoia

National Park described the Sequoia Park and Forest area:3

Down the canyons rush the rivers, in full spate

from May to July or August, in quieter mood at other

seasons, fed by innumerable creeks that issue from

mountain meadows and lakes. Above the rivers rise

the cliffs and domes, John Muir’s ‘granite headlands,’

jutting out toward the San Joaquin Valley to the

West. From these cliffs tumble water falls and cas-

cades, their spray misting the hanging gardens of

flowers which paint the slopes from early summer

until late autumn. The Pride of the Mountains, the

scarlet pentstemon, pursists through the earliest

frosts to make sanguineous patches through the first

snows of winter. In the upper canyons are lakes,

azure and emerald gems, framed in a glacier-polished

setting.

The High Sierra Cordon of impenceable peaks

holds fast those hidden treasures that are the hikers’

and packers’ rewards—meadows green with short-hair

grass or with sedges and flowers on the banks of

meandering brooks; little hidden yosemites where the

only sound from a mechanized world is the occasional

drone of an airplane thousands of feet overhead but

little more disturbing than the flight of hawk or eagle; _

innumerable fishing streams and lakes with camping —

sites beloved by the Sierra Club or by individual out-

fits; a paradisiacal land.

The game refuge is the home of the Mountain Bluebird,

the Yellow Hawk, the Western Robin, the Golden Eagle and

other birds and of such animals as the American Black Bear,

Mule Deer, Mountain Licn, Sierra Beaver, California Grey

Fox and California Wildcat.

*Leadabrook, Russ, A Guidebook to the Southern Sierra Navada

Including Sequoia National Forest, Los Angeles, Caiifornia, 1968,

p. 19.

3White, John and Pusateri, Samuel, Sequoia and Kings Canyon

National Parks, Palo Alto, California, 1949, p. 35.

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The magnificence of the area is best described, however,

not in these words but through pictures, several of which

we have included as an appendix to this brief.

2. History of Mineral King

The Mineral King Valley did not feei the influence of

man until the early 1870’s when miners came in search of

gold and silver. They found enough minerals for the area to

have its name changed from Beulah to Mineral King. How-

ever, they did not find enough to support large commercial

operations and by 1879 most mine owners had decided tc

leave the area.*

John Muir began in 1873 exploring the Kings Canyon

and Sequoia areas. He persuaded Senator John F. Miller of

California to introduce a bill in 1881 (S. 463, 47th Cong.,

Ist Sess.) which would have set apart “a public park and

forest reservation for the benefit and enjoyment of the

people.”* The bill, which included not only Mineral King

but all the areas now within Sequoia, Kings Canyon, and

Yosemite National Parks, died in the Senate Public Lands

Committee.®

In 1890, bills were ititroduced to establish Sequoia,

General Grant, and Yosemite National Parks. These bills

passed the Congress and became law. 26 Stat. 478, 651.

In 1891, John Muir turned his efforts to the enlargement

of Sequoia National Park. He wrote an article entitled

“A Rival of the Yosemite”7 advocating an expansion of

Sequoia which would have included Mineral King:

*Leadabrook, A Guidebook in the Southern Sierra Nevada Including

Sequoia National Park, supra, p. 22.

‘Wolfe, Zinnie Marsh, Son of the Wilderness: The Life of John

Muir, N.Y. 1945, p. 228.

Ibid,

"Century Magazine, November, 1891.

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8 Sierra Club Handbook, p. 60 (1969).

This region contains no mines of consequence, it

is too high and too rocky for agriculture, and even

the lumber industry need suffer no unreasonable

restriction. Let our law-givers then make haste,

before it is too late, to save this surpassingly glorioys

region jor the recreation and well-being of humanity,

and the world will rise up and call them blessed.

The following year, on May 28, 1892, John Muir met with

a small group in San Francisco where together they started

the Sierra Club. The Club was formally organized on June 4,

1892, wiih its purpose as stated in the “Articles of Incor-

poration”: “To explore, enjoy «nd render accessible the

mountain regions of the Pacific Coast; to publish authentic

information concerning them; to enlist the support and

cooperation of the people and the government in preserving

the forests and other natural features of the Sierra Nevada

Mountains.”’®

Meanwhile, om March 3, 1891, Congress enacted a bill

granting the President authority to establish national forests

on government-owned land. 26 Stat. 1103, 16 U.S.C. 471.

President Harrison in 1893 created, pursuant to 16 USC.

471, the Sierra Forest Reserve which included most of the

area around the three parks including Mineral King. How-

ever, John Muir wrote in 1898:?

This Sierra Reserve, proclaimed by the President

of the United States in September, 1893, is worth

the most thoughtful care of the government for its

own sake, without considering its value as the

fountain of rivers on which the fertility of the great

San joaquin Valley depends. Yet it gets no care at

ail. In the fog of tariff, silver, and annexation

policies it is left wholly unguarded.

On February 1, 1905, a statute was passed, 33 Stat. 628,

which moved administration of the national forests from the

9 Atlantic Monthly, January 1898, p. 27.

Department of the Interior, specifically the General Land

Office, to the Department of Agriculture, which already

had a Bureau of Forestry. This Bureau, which formerly

had only an advisory role concerning national forests,

became the Forest Service with complete administrative

responsibility. The Sierra Forest Reserve was divided into

national forests and the southern Portion, including Mineral

King, became Sequoja National Forest .!°

The Sierra Club continued its efforts to enlarge Sequoia

National Park to include Mineral King and other areas by

writing in 1907 a report to the President, the Secretary of

Agriculture, and the Chief Forester. Shortly thereafter,

William E. Colby of the Sierra Club collaborated wit Robert

E. Marshall, the Chiet Geographer of the United States

Geological Survey, to Produce a proposal for a much larger

Sequoia National Park which included Mineral King.!! In

1911, this proposal was introduced as a bill by Senator

Frank P. Flint. S. 10895, 61st Cong., 3rd Sess. The bill was

opposed, however, by Chief Forester Henry S. Graves on

the ground that a national park service should be established

before the creation of any new parks.!¢

| In 1916, the National Park Service was established (39

) Stat. 535, 16 U.S.C. 1) and a new bill was introduced to

enlarge the park including Mineral King (H.R. 13168, 64th

Cong., Ist Sess.). The Park Service and Forest Service argued

throughout this period concerning which lands should and

should not be in the Park. The Forest Service objected to

the inclusion of mineral and merchantable timber lands.!3

Farquhar, Francis P._, “Legislative History of Sequoia and Kings

Canyon National Parks” 26 Sierra Club Bulletin 42, 45 (1941),

"Strong, Douglas Hillman, Trees or T, imber: The Story of Sequoia

and Kings Canyon National Parks, Sequoia Natural History Association,

1964, pp. 41-43.

"? Farquhar, “Legislative History of Sequoia and Kings Canyon

National Parks,” supra, p. 46.

"Strong, Trees or Timber, supra, p. 44.

Hearings were held on several occasions concerning enlarge-

ment of the park. At the hearings before the House Com-

mittee on Puhlic Lands in 1919, Steven T. Mather, the

Director of the National Park Service stated, “This bill was

endorsed by the Sierra Club of California over five years

ago.... It will .. . take in the great scenic country behind

the present Sequoia Park.” Hearings on H.R. 10929, Janv- .

ary 21, 1919, 65th Cong., 3d Sess. 69. Mr. Mather went on

to state that, in naming the enlarged park, the proposal of

dedicating it to the president of the Sierra Club, John Muir,

was considered but it was felt that Muir Woods and Muir

Pass was sufficient use of the name Muir. Jd. at 10. E.O.

McCormick, then Vice-President of the Southern Pacific

Railway, told the same committee that “I can remember

when the country in question was almost inaccessible and

[there was] only one map in existence—one hand-made

map, the work of Mr. Joe Le Conte,” who was one of the

earliest members of the Sierra Club. Jd. at 22.

The day after those hearings, the Boston Evening Tran-

script printed a long article favoring the passage of the bill.

This article pointed out (January 22, 1919, pt. 2, p. 4):

In later years California has bred a group of

mountain rovers through the leadership of John Muir

and the Sierra Club, whose president he was until his

death, the members of which have explored the

remotest sections of the high country and brought

out tales of its superlative worthwhileness that have

reached the ears of mountain-lovers the world over.

It was these men and women who found and told

of the glories of the mountainous regions to the

east and north of the Sequoia and Grant Parks.

They picked up and followed the disused trails of

the old prospectors and forced a way where no

trails existed. They found it a joyous place for

spending a summer holiday, and saw in it the

possibilities for making it a recreation ground for

thousands where at most only dozens go today.

And so began the agitation for extending the park

boundaries to include the neighboring peaks and

canyons.

PELE SISAL COROT STE am RSME LOS KOVR AR Sei oo Sth Wee

The following year, H.R. 5006 was introduced which also

would have included Mineral King in the park. 66th Cong.,

2 Sess. At the hearings on the bill, Mr. Mather said, “I might

state right here that the Sierra Club Originally suggested that

this proposed park in the boundaries as laid out there a

considerable time before we took the question up in the

Interior Department of the creation of the park.” Hearings

before the House Committee on Public Lands on H.R. 5006,

February 24-26, 1920, 66th Cong., 2d Sess. 11. He then

introduced Marian R. Parsons who was representing the

Sierra Club. She inserted a letter into the record which

stated (ibid. ):

At a special meeting of the directors of the Sierra

Club last Monday, February 3, [1920,] the boundaries

of ihe proposed Roosevelt National Park [the enlarged

Sequoia National Park] were once more carefully

considered and it was the unanimous opinion, con-

curred in by our special committee on national parks,

that the boundaries should stand substantiaily as

Originally drawn by us. The southern boundary

[which included Mineral King] 2iso should, for

scenic as well as administrative reasons remain sub-

stantially as originally outlined.

The Sierra Club’s position regarding Mineral King was

supported the next day of the hearings by H.M. Albright

who was representing the Director of the Park Service (id.

at 68-69):

First, I would like to make a point clear that has

not been emphasized and that is that the National

Park Service did not Originally outline those purple

boundary lines [the boundary lines which included

Mineral King]. They were drawn, years before the

Park Service was created, by the Sierra Club and

with the advice of John Muir, whom we all know to

have been one of the greatest naturalists of his time.

John Muir traveled over this country from the early

days of California up to the time of his death. At

various times he brought up the question of having

a4 park established, and | think these lines were first

i sien eile ses ace an albinie eR PE 8

drawn about 1911. ... So this line, as | Say, was

drawn by those people who undoubtedly knew the

mountains better than anybody else. The Sierra

Club members probably know that area better now

than any other living people. They go in there

nearly every year, a Club of about 2,000 members,

and they know every nook and corner of it; they

know it better than even the Park Service does, . 7

We would still feel like adhering to the boundary

lines as drawn because these people have studied

so much more thoroughly.

As regards Mineral King, Albright said (id. at 74-75 .

If this cut should be made here, taking out the

Mineral King region, Franklin Pass and Farewell Gap,

all of our means of access to the Kern region would

be cut cff. The Mineral King Valley is a natural

course of roads or trails to the Kern... . That isall

eliminated [by a Forest Service proposed cut] taking

some of the most scenic parts of the park . . . so this

southern region here gentlemen, oug*t to be included

in the park by all means.

The Forest Service insisted that Mineral sing be excluded

from the proposed enlargement of the park. The sole reason

for this insistence was that Chief Forester Graves felt that

the mining activity around Mineral King should not be under

the jurisdiction of the Park Service. He stated that “I have

drawn the lines to exclude the mining camp of Mineral King.

I do not think it should be in a park. . .. One of the differ.

ences between the national park and the national forest is

the fact that the national forest is open to acquisition by

private ownership under the mineral-land law. My own

feeling is that this class of authority should not apply to

national parks.” Jd. at 38. Due to this and other objections,

all the bills to enlarge the park failed to pass.

In 1921, the head of the Park Service, Steven T. Mather,

and the Chief Forester, William Greely, agreed that the

Mount Whitney area would be included in the park but

three southern townships, then within the existing patk,

would be excluded." This agreement was embodied in

H.R. 7452, 67th Cong., 2d Segs., which, however, was

defeated. \

In response to the proposal to exclude the three southern

townships, the Sierra Club Suggested that the area be made a

game preserve.'5 In May 1923, a meeting was held between

the Forest Service, the Park Service, and the Sierra Club. At

this meeting, it was agreed that Mineral King would be left

out of the park but the Sierra Club again suggested that it

should at least become a game refuge."© The Chief Forester

agreed and that same year a bill was introduced that embodied

this agreement. H.R. 4095, 68th Cong., Ist Sess. However,

that bill also failed to pass.

Finally, in 1926, H.R. 9387 passed Congress and the

Sierra Club achieved its goal of enlarging Sequoia National

Park and preserving Mineral King as the Sequoia National

Game Refuge. 44 Stat. 821, 16 U.S.C. 688. The House

Report acknowledged the battle and victory of the Sierra

Club stating, “This Project embodied the ideas of John Muir,

Professor Joseph Le Conte, and other Prominent western

men belcnging to the Sierra Club of California, who had

been in many years of intimate contact with the High Sierra.”

H. Rep. No. 902, 69th Cong., Ist Sess. 3.

THE SIERRA CLUB HAS ST ANDING

' TO BRING THIS ACTION

The complaint filed by the Sierra Club Stated that the

Sierra Club had approximately 78,000 members, of whom

—seicniteenen,

*Strong, Trees or Timber, suprs, p. 44,

‘S11 Sierra Club Bulletin 324.

6Strong, Trees or Timber, Supra, p. 44.

is sciatica Reese SRN a Se

% Stl

it Gee IOW AONE ahs

For many years the SIERRA CLUB by its activities

and conduct has exhibited a special interest in the

conservation. and the sound maintenance of the

national parks, game refuges and forests of the coun-

try, regularly serving as a responsible representative

of persons similarly interested. One of the principal

purposes of the SIERRA CLUB is to protect and

conserve the natural resources of the Sierra Nevada

mountains. Its interests would be vitally affected by

the acts hereinafter described and would be aggrieved

as hereinafter more fully appears.

The district court held that these allegations gave the

Sierra Club standing to bring the action (R. 197). The court

of appeals reversed, with Judge Hamley dissenting as to stand-

ing (R. 223-224, 234-235). The court recognized the stand-

ing of “‘local conservationist organizations made up of local

residents and users of the area affected by the administrative

action” (R. 224). However, it distinguished the Sierra Club

on the ground that “there is no allegation in the complaint

that members of the Sierra Club would be affected by the

actions of defendants-appellants other than the fact that

the actions are personally displeasing or distasteful to them”

(R. 223).

This Court has held that the standing of plaintiffs to

challenge the action of federal agencies and officials has

two elements. First, the plaintiff must allege that “the

challenged action has caused him injury in fact, economic

or otherwise.” Association of Data Processing Service

Organizations, Inc. v. Camp, 397 U.S. 150, 152 (1970).

Second, the plaintiff must show that “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.” Jd. at 153; Hardin

v. Kentucky Utilities Co., 390 U.S. 1, 6-7 (1968).

In determining whether these standards have been met,

we submit that this Court should follow the principles

enunciated by the Court of Appeals for the District of

a ae

Columbia Circuit in Office of Communication of United

Church of Christ v. Federal Communications Commission,

359 F.2d 994, 1003-1004 (1966):17

The theory that the Commission can always

effectively represent the listener interests in a renewal

proceeding without the aid and Participation of

legitimate listener representatives fulfilling ile role

of private attorneys general is one of these assump-

tions we collectively try to work with so long as they

are reasonably adequate. When it becomes clear, as

it does to us now, that it is no longer a valid assum p-

tion which stands up under the realities of actual

experience, neither we nor the Commission can con-

tinue to rely on it. The gradual expansion and evalu-

ation of concepts of Standing in administrative law

attests that experience rather than logic or fixed

rules has been accepted as the guide.

In Scanwell Laboratories, Inc. y. Shaffer, 424 F.2d 859, 869

(C.A. D.C., 1970), the court of appeals stated that “‘we think

it time that such doubts [as to standing] were resolved in

favor of hearing cases in which the public interest demands

a hearing on the merits.”

Similarly, we cannot assume any longer that government

officials will represent the public in protecting the environ- ;

ment without the Participation of organizations specifically

devoted to this purpose. We believe that the law of standing

should be liberally construed to reflect this awareness.

"While the United Church of Christ case involved intervention

before the Federal Communications Commission, the court of appeals

relied on both standing and intervention cases and assumed that these

standards were identical, 359 F.2d at 1000, note 8.

A. The Interests Plaintiff Seeks To Protect Are

Arguably Within the “Zone of Interests” Pro-

tected by the Statutes Upon Which It Relies

There can be no doubt that the interests plaintiff seeks

to protect are arguably within the zone of interests protected

by the statutes on which it relies. Plaintiff makes four

contentions, each of which is based on federal statutes

designed to protect Sequoia National Game Refuge, Forest,

or Park.

First, 16 U.S.C. 688 allows the Secretary of Agriculture

to permit use of lands in Sequoia National Game Refuge

only “so far as they may be consistent with the purposes

for which said game refuge is established.” Section 688

states that the purpose of the refuge is “to protect from

trespass the public lands of the United States and the game

animals which may be thereon.” The use of 13,000 acres

of Mineral King for a ski and summer resort is inconsistent

with ‘this purpose of the refuge. Since plaintiff is a conser-

vation organization attempting to protect the animals of

the refuge, its interest is within the zone of interests pro-

tected by the statute.

Second, 16 U.S.C. 497(a) allows the Secretary of Agricul-

ture to grant permits for constructing resorts in national

forests oniy for 80 acres. This statute precludes the Secretary

from issuing a permit for 13,000 acres such as he plans to

grant in this case (R. 31). Section 497(a) is one of several pro-

visions which allow the use of land in national forests for

homes, schools, churches, commercial and other purposes,

but which restrict the amount of land which can be used

to from 2 to 80 acres in order to protect the forests. 16

U.S.C. 497(b), (c), (d), 479. For Congress established the

national forests for ‘“‘national and public purposes” (Light

vy. United States, 220 U.S. 523, 537 (1911)) “under the

conservation policy of the government” (Chicago, M. & St.P

Ry. v. United States, 218 Fed. 288, 293 (C.A. 9, 1914),

affirmed, 244 U.S. 351). Furthermore, the statute upon

which the Secretary of Agriculture bases his purported right

to issue revocable permits beyond 80 acres, 16 U.S.C. 351,

gives the Secretary power only to issue rules and regulations

in order “to preserve the forests thereon from destruction.”

Since plaintiff is a conservation orgaaization attempting to

protect the forests, its interest is within the zone of interests

protected by these statutes.

Third, 16 U.S.C. 1 provides that the “fundamental pur-

pose” of national parks is ‘‘to conserve the scenery and the

natural and historic objects and the wildlife therein and to

provide for the enjoyment of the same in such manner and

by such means as will leave them unimpaired for the enjoy-

ment of future generations.” 16 U.S.C. 43, 45b, and 61

require the Secretary of Interior to preserve the trees, scenic

beauty, and other aspects of Sequoia National Park in its

natural condition. The action of the Secretary of Interior in

permitting the building of a highway across the park which

will damage the park and serve the new resort is inconsistent

with these statutes. Since plaintiff is a conservation organiza-

tion attempting to protect the scenery, natural objects, wild-

life, and enjoyment by the public of the park, its interest is

within the zone of interests protected by the statutes.

Fourth, 16 U.S.C. 45c provides that no electric “‘trans-

mission lines . . . for the . . . transmission . . . of power

within the limits of [Sequoia National Park] shall be

granted or made without specific authority of Congress.”

The action of the Secretary of Interior in allowing the

building of a major transmission line across the park to

serve the new ski and summer resort violates this section.

The purpose of this statute is plainly to prevent harm to

the park and interference with the purposes of it. Since

plaintiff is a conservation organization attempting to pro-

tect these purposes, its interest is within the zone of interests

protected by the statute.

Since plaintiff is clearly within the zone of interests pro-

tected by these Statutes, the sole question is whether it has

suffered the degree of harm necessary to bring suit.

B. Plaintiff Has Suffered Injury of the Kind Which

Gives It a Personal Stake in the Controversy and

Which Assures Concrete Adverseness

We submit that the Sierra Club has standing on four dis-

tinct grounds. First, national conservation organizations

with strong interest in the protection of the environment

have standing to bring suit under federal statutes designed

to prevent its destruction.

Second, the Sierra Club is also a local conservation organi-

zation with a special long standing interest in Mineral King -

and Sequoia National Park. It therefore has standing even if

national conservation organizations generally lack standing

to sue.

Third, the Sierra Club has standing to represent its 78,000

members who as American citizens have a direct interest in

protecting the magnificent scenery, beautiful fauna, and wild

animals of Sequoia National Refuge, Forest, and Park from

despoilment, since they are reserved in trust for the benefit

of all Americans.

Fourth, the Sierra Club has standing as itself a user of this

area by regularly running camping trips into it and as the

representative of its members who are users of the wildlife

refuge and park.

Finally, if the Court finds that any of these arguments

is not fairly encompassed within the standing allegations of

‘the complaint or depends on evidence not in the record, the

cause should be remanded to the district court to allow the

complaint to be amended and an evidentiary hearing to be

held.

1. The Sierra Club Has Standing As a National

Conservation Organization Interested in Pro-

tecting the Environment

a. Constitutional Limitations

Any analysis of standing must start with Article III of

the Constitution which gives the federal courts jurisdiction

only over “cases” and “controversies.” However, as this

court explained in Flast v. Cohen, 392 U.S. 83,91-97 (1968),

it is unclear how much the rules of standing are based on

Article II] and how much on considerations on policy. The

Court noted that Frothingham v. Mellon, 262 US. 447

(1923), and subsequent cases are based on a mixture of

constitutional and non-constitutional reasoning. These policy

limitations are “not always clearly distinguished from the

constitutional limitation.” Flast v. Cohen, supra, 392 US.

at 97: Barrows v. Jackson, 346 U.S. 249, 255 (1953).

In Baker v. Carr, 369 U.S. 186, 204 (1962), this Court

held that standing requires ‘‘such a personal stake in the

outcome of the controversy as to assure that concrete

_adverseness which sharpens the presentation of issues upon

which the court so largely depends for illumination of

difficult constitutional questions.” Similarly, after lengthy

analysis, the Court in Flast v. Cohen, supra,-392 US. at

101, held that “in terms of Article III limitations on federal

court jurisdiction, the question of standing is related only

to whether the dispute sought to be adjudicated will be

presented in an adversary context and in a form historically

viewed as capable of judicial resolution.” The Court

explained an adversary context as where (id. at 106):

The questions will be framed with the necessary

7 specificity, . . . the issues will be contested with

the necessary adverseness and ... the litigation

will be pursued with the necessary vigor to assure

that the constitutional challenge will be made in

| a form traditionally thought to be capable of judi-

7 cial resolution. We lack that confidence in cases

such as Frothingham where a taxpayer seeks to

employ a federal court as a forum in which to air

his generalized grievances about the conduct of

government or the allocation of power in the Federal

System:

Accord, Jenkins vy. McKeithen, 395 U.S. 411, 423 (1969);

Association of Data Processing Service Organizations, Inc. y.

Camp, supra, 397 U.S. at 152, 172 (majority and concurring

Opinions).

In recent years, the courts have relaxed the requirements

concerning the personal stake which a plaintiff must demon-

strate to show concrete adverseness. In National Automatic

Laundry Cleaning Council v. Schultz, C.A.D.C., decided

March 31, 1971, the court of appeals held that “even a

minuscule pecuniary stake of the litigant may be sufficient”

since recent decisions “have struct the fetters of the prior

judicial inhibitions and restraints.”

Concrete adverseness is often assured by the economic

harm which the plaintiff has suffered and its corresponding

economic interest in the outcome of the litigation. However,

_ this Court has specifically held that the plaintiff's interes

“may reflect ‘aesthetic conservational, -and recreational’ as

well as economic values. A person or a family may havea

spiritual stake in First Amendment values sufficient to give

him standing to raise issues concerning the Establishment

-Clause and the Free Exercise Clause.” Jd. at 154. Accord,

Scenic Hudson Preservation Conference v. Federal Power

Commission, 354 F.2d 608, 615-616 (C.A. 2, 1965), certiorari

denied, 384 U.S. 941; Office of Communication of United

Church of Christ v. Federal Communicatio:i; Commission,

supra, 359 F.2d at 1000-1007. Thus, conservational values

of the kind involved in this case are fully adequate to serve

as the basis for standing.

Plaintiff clearly satisfied the constitutional requirements

for standing. The concrete adversariness of the Sierra Club

in cases involving despoilment of the environment cai

hardly be a matter of dispute. Since the issues it raises are

specific, it is not complaining generally about the conduct

of government. Beginning in 1965 when it requested a

hearing on three different occasions (R. 26, 41-45, 46, 47),

it has opposed the development vigorously and consistently.

Tac. Sierra Club is one of the largest conservation orgati-

zati*'s in the country; it has 78,000 members (R. 4)

org. zed in local chapters who paid over $1 million in dues

in 1. 70. Sierra Club Bulletin, February 1971, p. 21. Sine

SERHAOK Sie eet gener SD SEE eS ee entertainer ean

1902 when its first pack trip went into the sierra Nevadas,

the Club has run nature trips throughout the country. The

Club has a campus program which assists in organizing and

supplying information to student environmental groups.

i¢ Club publishes numerous books on nature and conser-

vation issues through its National News Report and the

Sierra Club Bulletin. Currently the Sierra Club is a plain-

tiff in 19 suits all over the country involving efforts to

protect wilderness in Colorado, the San Francisco Bay from

fill, a lake in Florida from a highway, the Gila River of

Arizona from channelization, a marsh in Pennsylvania from

a road project, an alpine lake in Washington from a mining

operation, and other abuses of the environment. The Club

is also an interve: o: in 9 cases and an amicus curiae in 10

other environment cases. Sierra Club Bullztin, January, 1971,

pp. 28-29.

The Court of Appeals for the Second Circuit has said that

the Sierra Club is a “‘national conservation organization with

substantial membership ... and a history of involvement in

the preservation of national scenic and recreational resources.”

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

97, 103 (1970), certiorari dznied, No. 615, this Term. The

district court specifically tound, by upholding the standing

Paragraph of the complaint, that the Sierra Club for many

years has had a special interest in conservation and the pro-

tection of the national parks, game refuges, and forests and

that one of its Principal purposes is to protect the resources

of the Sierra Nevada Mountains (R. 4, 197).

Such a plaintiff has the “concrete adverseness which shar-

pens the presentation of issues” far more than any Ordinary

plaintiff. The court of appeals conceded (R. 224) and numer-

Ous cases hold (see p. 62 below) that any local resident

| Who uses an area can sue to protect it from despoilment.

| Such a user may simply use it for occasional camping or

) hiking and he may only have had an interest for a few years.

He. may have little in the way of resources to provide fully

adequate representation.

in contrast, a national conservation organization, like the

Sierra Club, will generally have adequate resources. It will

have demonstrated its interest in protecting the environment

either by conducting activities over a long period of time

(like the Sierra Club, Wilderness Society, and Izaak Walton

League) or by starting major programs more recently (like

Friends of the Earth). In either event, the court will have

maximum assurance that there will be a “‘case” or “‘contro-

versy”’ before it.

In Office of Communication of United Church of Christ

v. Federal Communications Commission, supra, 359 F.2d at

1002, the court of appeals stated in upholding the standing

of a national church organization:

Since the concept of standing is a practical and func-

tional one designed to insure that only those with a

genuine and legitimate interest can participate ina

proceeding, we can see no reason to exclude those

with such an obvious and acute concern as the listen-

in audience.

We su’mit that national conservation organizations have an

equally deep concern with the environment as the church

organization had with broadcasting in that case.

b. NonConstitutional Limitations

This Court has suggested that several non-constitutional

policy reasons also limit the standing of plaintiffs to sue in

the federal courts. In Frothingham v. Mellon, supra, 262

U.S. at 486-487, the Court said that the plaintiff, a federal

taxpayer, had a “comparatively minute and indeterminable”

interest in federal tax revenues. It also indicated that the

courts might be flooded with suits “in respect of every

other appropriation act and statute whose administration

requires the outlay of public money, and whose validity

may be questioned.” Jd. at 487. See Flast v. Cohen,

supra, 392 US. at 93.

Neither of these policy considerations militate against

standing in this case. Moreover, an additional policy rea-

son, the lack of any other persons with a better claim to

standing in many environment cases, affirmatively supports

the standing of national conservation organizations.

Substantiality of Plaintiff's Irterest. As we have seen

pp. 36-37), the interest of the Sierra Club in protecting the

environment from despoilment is hardly minute. It has

had a substantial interest since its founding in 1892. The

substantiality of its interest strongly supports a finding of

standing.

Burden on the Courts. The right of the Sierra Club and

other national conservation organizations to bring suit adds

no substantial burden on the federal courts. Only a hand-

ful of such organizations exist and they do not have the

resources to bring more than a few dozen federal Suits a

year. Indeed, the number is still far too small to challenge

more than a handful of the actions of government agenices

and private corporations which have serious effects on the

environment. 3

The more relaxed rules for intervention before federal

agencies and for standing in the courts have not overburdened

them. As the Court of Appeals for the Second Circuit

noted in Scenic Hudson Preservation Conference v. Federal

Power Commission, supra, 354 F.2d at 617, “our experience

with public actions confirms the view that the expense and

vexation of legal proceedings is not lightly undertaken.”

Similarly, Associated Industries, Ine. v. Ickes, 134 F.2d 694,

707 (C.A. 2, 1943), vacated as moot, 320 U.S. 707, rejected

the possibility of the courts being overburdened by thousands

of cases by stating that “no such horrendous possibilities

exist.” And more recently in Scanwell Laboratories, Inc.

v. Shaffer, supra, 424 F.2d at 872, the court said that:

The spectre of opening a Pandora’s box of litiga-

tion has always seemed groundless to us, particularly

in the area of standing to sue. Certainly the hue

and cry went up when the states relaxed the criteria

ips Ey aris a: tie KR ERS a ae

a My Wine Meet Fe

alka tak aa Ha CWE alanahe Re LMA AS ova:

for standing to sue; but so far the dockets in the

states have not increased appreciably as a result of

new cases in which standing would previously have

been denied.

Accord, National Welfare Rights Organization v. Finch, 429

F.2d 725, 738 (C.A. D.C., 1970).!8

Since the court of appeals recognized that local conser.

vation organizations and users had standing and could have

brought suit, the court’s holding, as applied to this and

similar cases, would not reduce the number of cases brought

_ in the federal courts. Indeed, national conservation Organi-

zations, in contrast to most small local groups and individuals,

have the broader outlook to analyze situations more carefully

before they litigate and to bring only the strongest cases,

As the court of appeals said in Office of Communication of

the United Church of Christ v. Federal Communications

Commission, supra, 359 F.2d at 1005, with relation toa

nationz! church organization, such “responsible and repre-

sentative groups . . . usually concern themselves with a wide

range of community problems and tend to be representatives

_Of. broad as distinguished from narrow interests, public a

distinguished from private or commercial interests.” Thus,

if standing is denied national organizations and confined to

local groups and individuals, this may simply encourage

18Professor Kenneth Culp Davis has written (The Liberalized Law

of Standing, 37 U. of Chi. L. Rev. 450, 471):

[E]xperience of the federal courts ...shows that flood: of

litigation do not result when the judicial doors are opened to

all. A 1953 case [Reade v. Ewing, 205 F.2d 630 (C.A.2,

1953)] held that a “consumer”—anyone who eats—has stand

ing to challenge action of the Food and Drug Administration;

if consumers have brought many cases, they must all &

unreported. Many statues, including the Food and Drug Ac

and the Commurications Act, have long provided specifica

tor standing of “any person adversely affected” but litigation

under these statutes seems to be no more voluminous tha

litigatior: under other statutes. Half or more of the specific

statutes are as broad ...but the litigation is in dribbles, n0

floods.

more, less well prepared, and less meritorious actions. On

the other hand, “representation of common interests”’ by

an organization such as the Sierra Club may serve to limit

the number of those who might bring suit. Scenic Hudson

Preservation Conference v. Federal Power Commission, supra,

354 F.2d at 617; National Welfare Rights Organization vy.

Finch, supra, 429 F.2d at 739; Powelton Civic Home Owners’

Assn v. Department of Housing and Urban Development,

184 F.Supp. 809, 828, note 11 (E.D. Pa., 1968). Thus, the

right of national environment Organizations to bring suit may

often reduce the burden on the federal courts.

Lack of Anyone Else With a Better Claim to Standing.

While in this case local users could well have brought suit—

indeed, as we will argue below (pp. 62-63), the Sierra Club

itself in a user and represents members who are users—there

are suits which under the decision of the court of appeals

could not have been brought at all. Environment cases

increasingly raise issues which do not involve, or only 7

incidentally involve, direct users: The protection of wilder- -

ness areas, the preservation of wildlife refuges, the survival

of rare and endangered species, the integrity of natural

rivers, and the natural or scenic aspect of landscape. Those

who bring such suits may incidentally be users in that they

or their members have walked, watched and beheld the

subject of the litigation. However, such use is often inciden- -

tal to the larger Purpose to protect the integrity of the

environment. And if the only persons with standing are

users, no One will have Standing where there is no present

use (such as a suit ‘to preserve the wilderness) or no use is

Possible (such as a suit to prevent the chemical poisoning

of eagles).!9

"The following cases involve either no possible uses or, while

Possible, use is minimal:

Wilderness Society v. Hickel, D. D.C., decided April 23, 1970 °

(1 Environment Reporter 1335) (Alaska pipeline case involving the

wilderness).

_ Parker vy. United States, 307 F. Supp. 688, 309 F. Supp. 593 (D.

Colo., 1969), on appeal to the Tenth Circuit (protection of forest

wilderness), (continued)

Even where there are users, they may be unwilling to sue.

Nearby resident-users of a wilderness area may desire develop.

West Virginia Highland Conservancy v. Island Creek Coal Co., C.A.

4, decided April 6, 1971 (involving despoilment of a possible wilder.

ness area).

Citizens Commission for the Columbia River v. Resor, D. Ore.,

No. 69-498 (protection of a wildlife refuge and Columbia River from

fill to build an airport).

Alpine Lakes Protection Society v. Hardin, W.D. Wash., No. 885

(protection of national forest from motorized travel via trail).

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

1970 (protection of wilderness area from mineral exploration).

Gandt v. Hardin, W.D.Mich., decided December 11, 1969 (pro-

tection of wilderness qualities of a forest).

Thermal Ecology Must be Preserved v. Atomic Energy Commission,

433 F.2d 524 (C.A.D.C., 1970) (protection of fish and aquatic

environment from thermal pollution from atomic power plants).

EDF v. Corps of Engineers, E.D. Ark., decided February 19, 1971

(2 Environment Reporter 1260) (protection of fish and aquatic birds

from a proposed dam).

EDF v. Corps of Engineers, D.D.C., decided January 27, 1971

(2 Environment Reporter 1173) (protection of birds, fish, and forests

from cross-Florida barge canal).

Sierra Club v. Laird, D. Ariz., decided June 23, 1970 (1 Environ

mental Law Reporter 20085) (protection of fish and other wildlife

from channel cl zaring).

Association of Northwest Steel Headers v. Corps of Engineers, E. D.

Wash., Civ. No. 3362 (protection of fish and Snake River from a dam).

Sierra Club v. Hardin, D. Alaska, decided March 30, 1971 \2 Environ-

ment Reporter 1385) (preservation of a national forest, including

nesting grounds of bald eagle).

EDF v. Corps of Engineers, D. D.C., Civ. No. 1722-70 (prevention

of DDT discharge into waters flowing into wildlife refuge).

Texas Committee on Natural Resources v. United States, W.D. Tex.,

decided February 5, 1970 (1 Environment Reporter 1303), affirmed

on other grounds by Fifth Circuit, August 25, 1970 (protection of last

habitat of rare golden-cheeked warbler).

Stewart v. Resor, E.D. Pa., Civ. No. 70-551 (stopping highway to

protect fish and wildlife).

Pennsylvania Environmental-Council v. Bartlett, 315 F. Supp. 238

(M.D. Pa., 1970), on appezl to the Third Circuit (protection of fish

and wildlife from a highway).

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ment because of the economic benefits which will result.”

National conserv*tion organizations may be the only parties

who will represent the national, as contrasted to local,

interest by Opposing development. ‘This conflict between

local and national interests is particularly obvious and signifi-

cant with regard to nationzl parks, wildlife refuges, and

forests which must be preserved even if local residents

desire to develop them.

Furthermore, as the statute establishing the National Park

Service makes clear, the purposes for which the national

parks are created is “‘to conserve the scenery and the national

and historic objects and the wildlife therein. ...” 16 U.S.C. |

1. Similarly, 16 U.S.C. 688 provides that the purpose of the

Sequoia Game Refuge is “to protect from trespass the public

lands of the United States and the game animals which may

be thereon.”” And 16 U.S.C. 551, upon which the Secretary

of Agriculture bases his power to issue the revocable permit.

for use of 13,000 acres, allows him only to make rules and

regulations “‘to preserve the forests thereon from destruc-

tion.” It follows that conservationists must have standing

to protect the national interest in preserving the national

Humane Society of the U.S. v. Russell, D.D.C., Civ. No. 3627-70

(protection of deer in a wildlife refuge from a deer hunt).

Save America’s Vital Environment, Inc. v. Irwin, N.D. Ga., Civ. No.

14700 (protection of birds and fish from fire and eradication program

using the pesticide mirex).

National Audubon Society v. Johnson, 317 F.Supp. 1330 (S.D.

Tex., 1970), appeal dismissed by Fifth Circuit) (protection of marine

life and especially whooping crane from dredging of oyster shells).

In addition, several cases concerning pesticides involve protection

of animals and birds as well as man and presumably would have been

brought even if only animals were affected. Environmental Defense

Fund v, Finch, 428 F.2d 1083 (C.A.D.C. 1970) (DDT), Environmental

Defense Fund v. Hardin, 428 F.2d 1093 (C.A.D.C. 1970) (DDT);

Wellford v. Ruckelshaus, C.A.D.C., decided January 7, 1971 (2

Environment Report 1123) (2, 4, 5-T).

a is for this reason that Tulane County has supported the defend-

ants in this litigation.

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parks, game refuges, and forests for these purposes which

do not involve use. |

The petitioner—the Sierra Club—and the four amici curiae

supporting the petitioner—the Wilderness Society, Friends

of the Earth, the Isaak Walton Leagu , anc ihe Environmental

Defense Fund?! —all have as their principal interest the pro-

tection and conservation of the environment. While the

Sierra Club, Wilderness Society and the Isaak Walton League

are also interested in appropriate uses of natural areas con-

sistent with conservation of the environment, this is not

their principal interest. They should not be required to

assert this subsidiary interest in order to obtain standing to

prevent despoilment of the environment. The other two

organizations do not represent users at all and cannot assert

standing on that basis.

If these organizations and other non-users were denied

standing to challenge government actions where no users

exist or are involved only incidentally, this would of cours

slightly reduce the number of cases in the federal courts.

But no policy justifies standing requirements which eliminate

any possible plaintiff so that agency actions could not be

challenged in the courts for having violated federa: statutes.

This and other courts have consistently relied on the lack of —

any other persons with a better claim to standing in uphold-

ing the standing of plaintiffs tiien before, the court.

In Federal Communications Commission v. Sanders Bros.

Radio Stations, 309 U.S. 470, 477 (1940), this Court gave

us as one reason for permitting a radio station to challenge

the grant of a license to a competitor that the radio station

would likely be “the only person having a sufficient interest

to bring to the attention of the appellate court errors of

law in the action of the Commission. . . .” In Bantam Books,

Inc. v. Sullivan, 372 US. 58, 64, note 6 (1963), the Court

upheld the standing of a publishe: of books to challenge the

21The Environmental Defense Fund has filed a separate brie!

supporting the petitioner.

constitutionality of a statute directed at distributors because

the “pragmatic considerations arzue strongly for the standing

of publishers in cases such as the present cne.” These con-

_ siderations consisted of the likelihood that publishers would

be more likely to sue than distribut>rs and “unless [the

publisher] is permitted to sue, infringements of freedom of

the press may too often go unremedied.” Jbid. Similarly, in

Office Communication of the United Church of Christ v.

Federal Communications Commission, supra, 359 F.2d at

1004-1005, the court upheld the standing of listeners in

part because they are likely to be the only ones to challenge

programming deficiencies and overcommercialization in radio

and television license renewals before the Commission.

Accord, Pittsburgh v. Federal Power Commission, 237 F.2d

741, 746 (C.A. DC., 1956); Scanwell Laboratories, Inc. y.

Shaffer, supra, 424 F.2d at 863-865; Powelton Civic Home

Owners’ Assn. v. Department of Housing and Urban Devel-

opment, supra, 284 F.Sup; at 827; Sierra Club v. Hardin

D. Alaska, decided March 30, 197] (2 Environment Reporter

1385, 1392). *

c. Statutory Aids to Standing ~

Congress of course cannot permit suits to be brought in

federal courts which do not involve cases or controversies.

Muskrat v. United States, 219 US. 346 (1911). Congress,

however, can (1) help to define when a case or controversy

exists and (2) override non-constitutional policy limitations

on standing. As Judge Frank stated in ‘the leading case of

Associated Industries v. Ickes, supra, 134 F.2d at 704, which

examined at length®the right of plaintiffs to sue as private

Attorneys General: |

While Congress can constitutionally authorize no one,

in the absence of an actual justificable controversy,

to bring a suit for the judicial determination either

of the constitutiorality of a statute upon govern-

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ment officers, it can constitutionally authorize one

of its own officials, such as the Attorney General,

to bring a proceeding to prevent another official

from acting in violation o: his statutory powers;

for then an actual controversy exists, and the

Attorney General can properly be vested with author-

ity, in such a controversy, to vindicate the interest

of the public or the government. Instead of desig-

nating the Attorney General, or some other public

officer, to bring such proceedings, Congress can

constitutionally enact a statute conferring on any

non-official person, or on a designated group of non-

official persons, authority to bring a suit to prevent

action by an officer in violation of his statutory

powers; for then, in like manner, there is an actual

controversy, and there is nothing constitutionally

prohibiting Congress from empowering any person, .

official or not, to institute a proceeding involving such

a controversy, even if the sole purpose is to vindicate

the public interest. Such persons, so authorized, are,

so to speak, private Attorney Generis.

Accord, Reade v. Ewing, 205 F.2d 630, 632 (C.A. 2, 1953).

The court in Associated Industries pointed to United States

ex rel., Marcus v. Hess, 317 U.S. 537 (1943), which affirmed

a judgment under the Federal Informers Act in favor of a

private citizen who had not himself been defrauded but who

had sued for fraud on behalf of the government.

Although in the present case Congress has not passed a

statute specifically authorizing national conservation organi-

zations to bring suit, both the Administrative Procedure

Act and National Environmental Policy Act strongly support

the standing of national conservation organizations in chal-

lenging the actions of federal officials. |

Administrative Procedure Act. Plaintiff brought suit under

the Administrative Procedure Act (R. 3), which provides

(5 U.S.C. 702):

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

MLS AEDS SERRE IE TINEA Ws PO RATA AM IC EAT 2S TELE EAP OOOO

| 47

action within the mear‘ng of a relevant statute, is

entitled to judicial review thereof.

The Act has clearly expanded the standing of persons to

bring suits in the federal courts. As this Court stated in

Association of Data Processing Service Organizations, Inc.

y, Camp, supra, 397 U.S. at 154:

Where statutes are concerned, the trend is toward

enlargement of the class of people who may protest

administrative action. The whole drive for enlarging

the category of aggrieved “‘persons’’ is symptomatic

of that trend.

While some earlier cases have construed the Administra-

tive Procedure Act to add little or nothing to the existing

law of standing (e.g., Pennsylvania Railroad Co. v. Dillon,

335 F.2d 292, 294-95 (C.A. D.C., 1964)), more recently

ihe courts have generally held that the Act “reenforces a

judicial trend liberalizing standing ... .” Curran ¥. Laird,

420 F.2d 122 (C.A. D.C., 1970) (en banc). Accord, Nor-

walk CORE v. Norwalk Redevelopment Agency, 395 F.2d

920, 933, note 25 (C.A. 2, 1968); Scanwell Laboratories,

Inc. v. Shaffer, supra, 424 F.2d at 865-870: Triangle Improve- -

ment Council v. Ritchie, 314 F.Supp. 20, 27-28 (S.D. W. Va.,

1969), affirmed, 429 F.2d 423 (C.A. 4), pending on writ of

certiorari, No. 712, this Term. Similarly, in Ballerina Pen

Co. v. Kunzig, 433 F.2d 1204, (C.A. D.C., 1970), the court

of appeals upheld standing because of the basic purpose of

the Administrative Procedure Act to assure that federal

agencies, whose powers have such a far-reaching effect on

citizens, complied with the will of Congress: “[A]n impart-

ial court is required to ascertain the degree of delegation of

authority the Congress intended and to determine whether

the agency in question has exceeded the bounds of its dele-

gated authority.” Jd. at 1208.

This liberal construction of the Administrative Procedure

Act with regard to standing is consistent. with numerous

decisions of this Court. In Wong Yang Sung v. McGrath,

339 U.S. 33, 36 (1956), the Court reviewed at length the

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background of the Act because “determination of questions

of its coverage may well be approached through consideration

of its purpose as disclosed by its background.” The Court,

noted that “‘the conviction developed . . . that [the adminis.

trative] power was not sufficiently safeguarded and some.

times was put to arbitrary and biased use.” Jd. at 37. The

Court concluded that “it would be a disservice to our form

of government and to the administrative process itself if

the courts should fail, so far as the terms of the act warrant,

to give effect to its remedial purposes where the evils it

was aimed at appear.” /d. at 41.

Subsequently, in Abbott Laboratories v. Gardner, 387 US.

136 (1967), this Court considered the scope of review under

the Administrative Procedure Act. It stated that earlier cases

‘“thave been reinforced by the enactmeni of the Administra

tive Procedure Act .... The legislative material elucidating

that seminal act manifests a congressional intention that it

cover a broad spectrum of administrative actions, and this

Court has echoed this theme by noting that the Administra

tive Procedure Act’s ‘general review provisions’ must be

given a ‘hospitable’ interpretation.” Jd. at 140-141. And

in Chicago v. United States, 396 U.S. 162, 164 (1969), this

Court said that ‘‘we start with the prescription that aggrieved

persons may obtain review of administrative decisions unless

there is ‘persuasive reason to believe’ that Congress had no

such purpose.” Accord, Heikkala v. Barber, 345 U.s. 229,

232-233 (1953); Shaughnessy v. Pedreiro, 349 US. 48,51 |

(1955); Rusk v. Cort, 369 U.S. 367, 379 (1962); Associa —

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

supra, 397 U.S. at 157; Barlow v. Collins, 397 U.S. 159, 165

(1970); Tooahnippah v. Hickel, 397 U.S. 598, 606 (1970);

Citizens to Preserve Overton Park, Inc. v. Volpe, No. 1066,

this Term, decided March 2, 1971.

While none of these cases specifically involved staruing,

there is no reason why 5 U.S.C. 702, the standing provision

of the Act, should receive any narrower, less hospitable

interpretation than any of its other provisions and particu:

larly those relating to judicial review.

National Environmental Policy Act. The National Environ-.

mental Policy Act declares that it is “national policy,” inter

alia, “to promote efforts which will prevent or eliminzie

damage io the environment” (42 U.S.C. 4321) and federal

policy to use “all practical means and measures” to protect

the environment in cooperation with “concerned public and

private organizations” (id. at 4331(a)). Russell E. Train,

the Chairman of the President’s Council on Environmental

Quality, which was established by the Act and has the

responsibility to ensure that the Act is complied with £42

US.C. 4321, 4344; Exec. Order No. 11514(13), 35 Fed.

Reg. 4247) has stated that (1 Environment Reporter 745):

Private litigation before courts and administrative

agencies has been and will continue to be an import-

ant environmental protection technique supplement-

ing and reenforcing government environmental pro-

tection programs.

The Council has itself specifically noted with approval judicial

decisions which upheld the standing of nationai conservation

organizations. 1 Environment Reporter 746.

Even more specifically, the Legal Advisory Committee to

the Council unanimously passed a resolution in the fall of

1979 (quoted in Statement by Timothy Atkeson, General

Counsel, Council on Environmental Quality, before the Sub-

committee on the Environment of the Senate Committee

on Commerce, April 15, 1971):

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

legislation designed to protect the environment, the

interposition by the Government of the defense of

lack of standing is inconsistent with the federal

environmental policy, as exemplified in the National

Environmental Policy Act and in other legislation.

The Council on Environmental Policy has itself adopted this

Position. Ibid.

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Thus, the Council on Environmental Policy has concluded

that the National Environmental Policy Act provides standing

for conservation organizations, like the Sierra Club, which

assert claims under statutes, like those in this case. This

interpretation by the federal agency charged with administer-

ing the Act is entitled to great weight as to its meaning. E.g.,

Udall v. Tallman, 380 U.S. 1, 16 (1965). And the Act, in

turn, provides support for the courts in upholding the stand-

ing of national conservation organizations in asserting claims

under statutes designed to protect the environment.

d. Judicia! Decisions

The Court of Appeals for the Ninth Circuit has held in

this case that national environment organizations have not

been sufficiently injured to have standing to bring this suit.”

This decision is inconsistent with the views of every other

court which has specifically or implicitly ruled on this issue.

Earlier, this year, this Court held that federal highways

could not be built through public parks if a feasible alterna-

tive route existed. Citizens to Preserve Overton Park, Inc.

v. Volpe, No. 1066, this Term, decided March 2, 1971. The

Court specifically noted that petitioners were “‘private citi-

zens as well as local and national conservation organiza-

tions ....” The national organizations were the Sierra Club

and Audubon Society. Since standing, at least insofar as the

| constitutional requirements of Article III are concerned,

involves jurisdiction, the decision in the Overton Park case

at least implicitly supports the standing of national conserva-

tion organizations to sue to protect the environment.

The holding of the court of appeals in this case is in square

conflict with decisions of two other circuits and several

221n a subsequent case, Alameda Conservation Ass'n v. California,

437 F.2d 1087 (1971) (Judge Merrill dissenting), certiorari denied,

No. 1300, this Term, the Ninth Circuit held that a local conservation

organization did not have standing to protect San Francisco Bay from

fill although eight individuals living near the Bay did »ave standing.

district courts. The court. below specifically rejected (R. 224,

note 9) the holding in Citizens Committee for the Hudson

Valiey v. Volpe, 425 F.2d 97 (C.A. 2, 1970), certiorari

denied, No. 615, this Term, that national conservation

organizations, and specifically the Sierra Club, have standing.

In contrast to the Ninth Circuit’s holding, the Second Circuit

explicitly upheld the Sierra Club’s standing on the ground

that the Club and the other plaintiffs (id. at 102):

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 action,

claiming that they were ‘“‘aggrieved’’ when the Corps

acted adversely to the public interest. They are. . .

serving as “private Attorney Generals” to protect

the public interest.

The court then explained (id. at 103):

[Plaintiffs] have evidenced the seriousness of their

concern with local natural resources by organizing

for the purpose of cogently expressing it, and the

~ intensity of their concern is apparent from the

considerable expense and effort they have under-

taken in order to protect the public interest which

they believe is, threatened bs: official action of the

federal and state governments. In short, they have

proven the genuineness of their concern by demon-

_Strating that they are “willing to shoulder the burden-

“some and costly processes of intervention” in an

administrative proceeding ... . They have “by their

activities and conduct. . . exhibited a special interest”

in the preservation of the natural resources of the

Hudson Valley.

Similarly, the decision below is in conflict with Environ-

mental Defense Fund, Inc. y. Hardin, 428 F.2d 1093, 1097

(C.A. D.C., 1970), where the court held that national con-

servation organizations had standing to attack the continued

marketing of DDT:

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[T]he consumers’ interest in environmental prote>.

tion may properly be represented by a membership

association with an organizational interest in the

problem. ,

On the basis of petitioners’ uncontroverted allega.

tions, it appears that they are organizations with a

demonstrated interest in protecting the environment

from pesticide pollution. Therefore they have the

necessary stake in the outcome of a challenge to

the Secretary’s inaction to contest the adverseness

required by Article III of the Constitution.

The national organizations whose standing was upheld

included the Environmental Defense Fund, the Izaak Walton

League, the National Audubon Society and the Sierra Club,

the plaintiff in this case. Accord, Environmental Defense

Fund, Inc. v. HEW, 428 F.2d 1083, 1085, note 2 (C.A. DC.,

1970).

Several district courts have also upheld the standing of

national conservation organizations. In EDF v. Corps of

Engineers, E.D. Ark., decided Feb. 19, 1971 (2 Environment

Reporter 1260), the district court upheld the standing of

the Environmental Defense Fund and three Arkansas con-

servation organizations to bring suit to enjoin the construc-

tion of a dam because of its environmental effects. The

court noted that (2 Environment Reporter at 1281):

They are all nonprofit organizations composed of

members who have a .incere and vital common

interest in protecting those environmental values

which they deem to be most important to this, and

future, generations of American citizens. It is true

they have no direct and personal economic interes

in the Cossatot River or the lands lying adjacent

thereto, but these organizations wish to represen!

what they deem to be “public” interest in this river

and its environs. Each of the organizations has

demonstrated its interest in such matters as that

represented by this lawsuit.

After reviewing the recent changes in the federal law of

standing, the court held that the rationale of this Court’s

recent decisions (id. at 1283):

if not the precise holdings, clearly indicates that

such plaintiff organizations . . . have standing to sue.

There can be no doubt that the corporate plaintiffs

are interested and antagonistic enough to present the

issues vigorously and with the “‘concrete adverseness”’

referred to in Baker v. Carr.... Furthermore, .. . the

National Environmental Policy Act of 1969 makes

clear the recognition by Congress of the important

role of such private organizations to cooperate with

“concerned . . . private organizations” to further the

policies of the Act.

In Izaak Walton League v. St. Clair, 313 F. Supp. 1312,

1316 (D. Minn., 1970), the court upheld the standing of a

national conservation organization to enjoin drilling for and

removing minerals from a wilderness area:

Clearly here the plaintiff, Izaak Walton League, will

present the case in ‘tan adversary context.” The

League has a long history of activity in conserva-

tion matters and natural resource preservation. .. .

There is no doubt in the court’s mind that plaintiff

actively will pursue in an adversary way the prose-

cution of this suit and has:

alleged such. a personal stake in the outcome of

the controversy as to as»ure that concrete adverse-

ness which sharpens the presentation of issues

upon which the court so largely depends for

illumination of difficult constitutional questions?

369 U.S. 186, at 204 ... in Baker v. Carr.

There will be no collusive suit nor a mere nominal

presentation.

The court said further that the League is “not a Sjohnny-

come-lately’ or an ad hoc organization and its interest in the

wilderness movement is continuing, basic and deep. It there-

fore has an ‘aesthetic, conservationa! and recreational’ interest

to protect.” Jd. at 1317. Accord, Parker v. United States,

309 F. Supp. 593 (D..Colo., 1970) (upholding, inter alia,

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the standing of the Sierra Club because plaintiffs “‘have

special interest in the values which Congress sought to

protect by enacting” the statutes relied upon); Wilderness

Society v. Hickel, D. D.C., decided April 23, 1970 (1 Environ-

ment Reporter 1335, 1337); EDF v. Corps of Engineers,

D. D.C., decided January 27, 1971 (2 Environment Reporter

1173, 1174) (upholding the standing of the Environment

Defense Fund because “through their research and other

activities [they] have actively sought to preserve and enhance

the environment” and therefore “‘they have alleged a per-

sonal stake in the outcome of the controversy”).

In short, the Administrative Procedure Act, the National

Environmental Policy Act and numerous judicia! decisions

all support the standing of national environment organiza-

tions, like the Sierra Club, to bring suit to protect the

environment. Such organizations have the concrete adverse-

ness to satisfy the constitutional.requirement of a “case”

or “controversy” and do not violate any of the non-

constitutional standing requirements which have been imposed

by the courts. Consequently, these national conservation

organizations have the right to bring litigation to ensure that

federal officials and agencies are following statutory man-

dates in preventing further destruction of our environment.

2. The Sierra Club Has Standing as a Local

Organization Interested in Protecting Sequoia

National Game Refuge, Forest, and Park

We have contended above that the Sierra Club has standing

as a national conservation organization to challenge the

actions of federal officials despoiling the environment in

Sequoia National Game Refuge, Forest, and Park. Even if

we are wrong in this contention, the Sierra Club has standing

as a local organization long interested in protecting this

particular area.

There can be no doubt that local conservation organiza

tions have standing to protect the environment in their areas.

The court below itself stated that “local conservationist

organizations made up of local residents and users of the

area, affected by the administrative action” have standing

(R. 224). The court, however, found that “n- such .. .

organizations with a direct and obvious interest have joined

as plaintiffs in this action” (R. 224).?3

Several other decisions have also held that local conserva-

tion organizations have standing. In Washington Department

of Game v. Federal Power Commission, 207 F.2d 391 , 395,

note 11 (1953), certiorari denied, 347 U.S. 936, the Ninth

“Circuit held that the Washington State Sportsmen’s Council

had standing as a party aggrieved since it claimed that the

dams “will destroy fish in which they . . . are interested in

protecting.”’ More recently, West Virginia Highlands Con-

servancy v. Island Creek Coal Co., C.A. 4, decided April 6,

1971, held that since the Conservancy has a “special interest”

in protecting a wilderness area from destruction, it had

standing to sue to protect it? In Pennsylvania Environmental

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

1970), the court held that the Council was aggrieved under

the Administrative Procedure Act because one of its ““princi-

pal purposes . . . is to protect and conserve the material

resources, aesthetic qualities and recreational value of areas”

like the valley and park involved in that case. And in

Crowther v. Seaborg, 312 F. Supp. 1205, 1216 (D. Colo.

1970) the court upheld, in a case involving detonation of

an atomic bomb, that the Colorado Open Space Coordinat-

ing Council “is adversely affected a.id aggrieved” and there-

fore has standing to assert “‘the interests of all these persons

entitled to the full benefit, use and enjoyment of the

natural resources of the State of Colorado... .” Accord,

Scenic Hudson Preservation Conference v. Federal Power

Commission, supra, 354 F.2d at 616; Road Review League

. 3Ina subsequent case, however, the Court of Arpeals for the Ninth

Circuit has held that even a local conservation organization lacks

standing to sue to protect the environment. Alameda Conservation

Ass'n v. California, supra, 437 F.2d at 1087.

v. Boyd, 270 F. Supp. 650, 661 (S.D. N.Y., 1967); Delaware

v. Penn Central, D. Del., decided February 24, 1971 Q

Environment Reporter 1355, 1258-1359). In addition, the

decisions cited above (pp. 50-54) upholding the Standing

of national conservation organizations apply a fortiori to

local organizations. |

The determination of the court below that the Sierra |

Club is not a local conservation organization with local

residents and users of the area is clearly contrary to the

facts. While it has since become a national Organization,

the Sierra Club started.as an organization devoted to

expioring and protecting the Sierra Nevada Mountains. Its

articles of incorporation state that this is its principle inter-

est. Sierra Club Handbook 60 (1969). As we have described

above (pp. 23-29), John Muir, the founder of the Sierra

Club, was intimately involved in exploring tlie magnificence

of the Sierra Nevada Mountains and the Sierra Club led the

fight for the protection of the entire Sequoia area. In large

part because of its efforts, Sequoia National Park was

created and Mineral King was made part of the Sequoia

National Game Refuge. Thus, the Sierra Club has been

working to protect: this specific area since its founding

almost 80 years ago.

Even today, the Sierra Club still has its headquarters in

San Francisco and 27,000 of its 78,000 members reside in

the San Francisco area (R. 4). ‘It runs a camping trip yearly

into Mineral King (Sierra Club Handbuvok 24 (1969)) and

continues to have a particular interest in protecting this area

as is evidenced by this litigation.

In short, whatever other national interests the Sierra Club

might have, it is still, in considerable part, a local organiza

tion interested in protecting the Sierra Nevada Mountains

in general and Sequoia National Game Refuge and Park in

particular. There can be no doubt that it has the concrete

adverseness to have standing in this litigation and to presen

the issues vigorously in the courts.

All these facts are either clear from the record or are part |

of the indisputable history of California. However, if there

is any dgubt concerning them, this Court should remand the

case to the district court to allow the presentation of evidence

concerning the Sierra Club’s long involvement and concern

for the protection of the very area involved in this litigation.4

3. The Sierra Club Has Standing as an Organization

Representing the Interests of Its Members in Pro-

tecting Lands Held in Trust for the American

People in National Game Refuges, Forests and

’ Parks

a. Lands Held In Public Trust

The concept of land held in public trust has long been

recognized by the courts, Government land not held

for sale must be managed in a manner which is consist-

ent with the purposes for which it is held. This general

principle is affirmed in Jilinois Central v. Illinois, 146 US.

387, 452 (1892), in which this Court stated that the title

under which Illinois held land under the navigable waters

of Lake Michigan is “different in character from that

which the state holds in lands intended for Sale... . It is

a title held in trust for the people of the State that they

. ** This contention, in this day of notice pleading, seems fairly

included within the Standing allegations. The complaint alleges that

27,000 of 78,000 members of the Sierra Club live in the San Francisco

Bay area and that a Principal purpose of the Club is to protect the

Sierra Nevada Mountains (R. 4).

i ) —

: 58 i,

The courts have applied this concept specifically to

national park and forest land. In Allen v. Hickel, 424 F.24

944, 947 (1970), the Court of Arpeals for the District of

Columbia Circuit considered a challenge to the use of the

Ellipse, which is national parkland, behind the White House.

In upholding the standing of five individual citizens, the |

court stated that “citizens may sue to enjoin a government

holding land in trust as a park from impermissibly diverting

the use as to destroy their beneficial interest as park users.”

The court did not insist that they be actual users; it was

enough that they “were entitled, as members of the public,

to enjoy the park land... .”

Similarly, in Archbold v. McLaughlin, 181 F. Supp. 175,

180 (D. D.C., 1960), the district court upheld the standing

of individuals to challenge the construction of a highway

through a park: )

Land dedicated to the use of the public for park

purposes is held in trust for that use, and a resident

of the city or town in which the park is located may

maintain a suit in equity to prevent diversion of the

use of such land, since “courts of equity always

interfere at the suit of a cesiui que trust or a cestui

que use to prohibit a violation of the trust, or a

destruction of the right of user.”

Where, as in this case, the park is not a local one and the

trust is for the benefit of all American citizens, it would

appear that any citizen can bring suit to require the federal

agencies to protect the game refuge, forest and park from

uses inconsistent with the purpose for which this land was

reserved.

These principles have also been specifically applied to

national forests. In Utah Power & Light Co. v. United States,

243 U.S. 389 (1917), a power company claimed the right to

maintain a series of dams, reservoirs, pipe lines, power

houses, transmission lines and subsidiary structures which

it had installed in a United States forest reservation with

the knowledge of officers and employees in the forestry

service, buf without the statutory authorization of Congress.

This Court held that, in suits by the United States to evict

the power company and restore the forest to its proper use,

the United States was not estopped by its officers’ unauthor-

ized consent. ‘Vhe court explained that “*[a] suit [in equity |

by the United States to enforce and maintain its policy

respecting lands which it holds in trust for all the people

stands upon a different plane . . . from the Ordinary private

‘suit... .” Id. at 409. Accord, Light v. United States, 220

US. 523, 537 (1911); see also United States y. Trinidad

Coal-Co., 137 U.S. 160, 170 (1890); Causey v. United States,

240 U.S. 399 (1916); Sax, The Public Trust Doctrine in

Natural Resources Law: Effective Judicial Intervention, 68

Mich. L. Rev. 471, 492-496 (1970).

The purpose of the national parks is “to conserve the

scenery and the national historic objects and the wild life

therein... .” 16 U.S.C. 1. The purpose of Sequoia National

Park is specifically to protect the trees, scenic beauty, and

other aspects of the park in its natural condition (16 U.S.C.

43, 45b, 61) and to serve as a “public park, or pleasure

ground, fur the benefit and enjoyment of the people” (16

USC. 41). The Sequoia Game Refuge was designed to

protect the land and animals, and national forests are

intended to protect the forests. 16 U.S.C. 688, 551. Cont

sequently, these lands are held in trust for all Americans

without regard to whether they are intended for use.

When a trustee does not defend the title to trust property,

the beneficiary is entitled to bring suit to protect his interests.

Restatement of Trust, Sec. 282. “It is well settled that a

fiduciary who refuses to bring suit against a third party for

the benefit of his cestui abuses his trust. In such event the

cestul may maintain a bill in equity against the trustee in

which the third party may be joined as a defendant.’ Man-

ning v. Miller Music Corp., 174 F. Supp. 192, 196 (S.D. NLY.,

1959). The members of the Sierra Club like all American

citizens therefore have the right to sue to prevent despoil-

ment of lands held in trust for them.

60 ,

b. Representation of Members

This Court has frequently held that an organization has

standing to represent its members when the latter have

Standing. In National Motor Freight Traffic Association y,

United States, 372 U.S. 246, 247 (1963), this Court upheld

the standing of associations of motor carriers as “proper

representatives of the interests of their members.” Accord.

E.g., N.A.A.CP. v. Alabama ex rel. Patterson, 352 US. 449

458-459 (1958); Bates v. Little Rock, 361 US. 516, 523,

note 9 (1959); Louisiana ex rel. Gremillion vy. N.A.A.CP.

366 U.S. 293, 296 (1960); N.A.A.C.P. v. Button, 371 US.

415, 428 (1963). See also National Association of Securities

Dealers, Inc. v. Securities and Exchange Commission, No.

59, this Term, decided April 15, 1971.

In National Automatic Laundry and Cleaning Council y

Schultz, decided March 31, 1971, the Court of Appeals for

the District of Columbia noted the “‘line of cases that show

wide disposition to allow associations to appear as represents-

tives of their memb:rs and to grant them standing to seek to

vindicate the interest of those members.” Accord, Associated

Industries v. Ickes, supra, 134 F.2d at 712-713; Archbold »,

McLaughlin, supra, 181 F.Supp. at 180; National Coal Assn

v, Federai Power Commission, 191 F.2d 462 (C.A.D.C., 1951); §

McArthur Liquors, inc. v. Palisades Citizens Ass’n, 265 F.2d

372, 374 (C.A.D.C., 1959); Citizens Ass’n of Georgetown). |

Simonson, 403 F.2d 175, 176 (C.A.D.C., 1968); United Fed-

eration of Postal Clerks v. Watson, 409 F.2d 462, 469-470

(C.A.D.C. 1969), certiorari denied, 396 U.S. 902; National

Student Ass’n v. Hershey, 412°F.2d 1103, 1120-1121 (CA. |

D.C., 1969); South Hill Neighborhood Ass’n v. Romney,

421 F.2d 454 (C.A. 6, 1969) (holding of district cout —

adopted by court of appeals); Powelton Civic Home Owners

Ass'n v. Department of Housing and Urban Development,

supra, 284 F. Supp. at 828; National Ass’n of Letter Carries §

v. Blount, 305 F. Supp. 546, 548 (D. D.C., 1969), apped &

dismissed, No. 101, this Term. As the court of appeals held

in Citizens Ass’n of Georgetown v. Simonson, supra, 43

CTR aitipipeteoee

F.2d at 176, ‘‘since the association is an authorized spokes-

man organized to promote those interests for its members,

it too has standing to sue in order to protect their interests.”

And in National Ass’n of Letter Carriers v. Blount, supra,

305 F. Supp. at 548, the court upheld the standing of an

organization since it “‘is the authorized spokesman of its

membership” and “‘has sufficient interest in this litigation

to pursue the matter vigvrously ard is in a position to bring

the issues into sharp focus.”

This principle that organizations can represent their

members has been specifically applied to conservation

groups. Crowther v. Seaborg, supra, 312 F. Supp. at 1205

(D. Colo.); Sierra Club vy. Hardin, supra, D: Alaska, decided

March 30, 1971 (2 Environment Reporter 1385); White Lake

Ass'n v. Whitehall, Michigan Court of Appeals, decided Feb-

ruary 27, 1970) (1 Environment Reporter 1383, 1386).

Indeed, the court below upheld the right of conservation

organizations to represent their members by finding that

“local conservationist Organizations made up of local resi-

dents and users of the area affected” could bring suit (R.

224).

Thus, individual American citizens have the right to sue

to protect lands held in trust for them and organizations

have standing to represent the rights of their members. The

district court found, in upholding the allegations in the

standing paragraph of the complaint, that the Sierra Club

has been “regularly serving as a responsible representative”

of persons interested in conservation and protecting the

national game refuges, forests and parks of the country .

(R. 4, 197). Similarly, the First Annual Report of the

Counci! on Environmental Quality which President Nixon

sent to the Congress in 1970 states that the Sierra Club

and other environment organizations “exist to inform, guide

Or represent their members in a wide variety of environmental

and conservation matters” (p. 215). The Club therefore

had standing to represent the interest of its members in

Protecting their rights in these invaluable lands held in trust

for.them.

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62 .

4. The Sierra Club Has Standing as an Organization

Which Itself Uses Sequoia National Game Refuge,

Forest, and Park and Represents the Interests of

its Members Who Are Users of This Area

Users of government lands clearly are injured and aggrieved

when officials propose to use these lands for other purposes

and therefore have standing (R. 224). Numerous other

decisions have similarly upheld the standing of users. Alameda -

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

1091-1092; Parker v. United States, 307 F. Supp. 635, 687

(D. Colo., 1969); Crowther v. Seaborg, supra, 312 F. Supp.

at 1205; Pennsylvania Environmental Council, Inc. v. Bart-

lett, supra, 315 F. Supp. at 245; EDF v. Corps of Engineers,

supra, D. D.C., decided January 27, 1971 (2 Environment

Reporter 1173, 1174); Sierra Club v. Hardin, D. Alaska,

decided March 30, 1971 (2 Environment Reporter 1385,

1392) (“Sierra Club and the Sitka Conservation Society

have standing to assert the aesthetic conservational and

recreational interests of local members and_ users who are

directly affected”). —

The Sierra Club is itself a user of Sequoia National Game

Refuge and Park. The Club runs and has run, virtually

without interruption for over 60 years, camping trips into

this area.25 The Court of Appeals for the Ninth Circuit

has expressly recognized in Alameda Conservation Associa-

tion v. California, supra, 437 F.2d at 1091, that if a conserva-

tion organization has ‘‘a recreational operation which it

conducted and which the defendants interferred with, it

could assert it ....” The Sierra Club therefore has standing.

There can also be little doubt that the Sierra Club has

among its members many users of the Sequoia National

Gatae Refuge and Park. We have seen above (pp. 60-61) that

25Testimony of H.M. Albright before the House Committee on

Public Lands, February 26, 1920, on H.R. 5006, 66th Cong., 2d Sess.

69; 12 Sierra Club Bulletin 408 (1926); Sierra Club Handbook 24

(1969).

yas

, ~~

organizations have standing to represent the interests of their

members if these members themselves have standing.

We do not believe that these simple facts are disputable. (

But if the government does dispute them or if it contends H

that these contentions are not encompassed within the stand-

ing allegations of the complaint (see R. 4), then the proper [

procedure is for this Court to remand the cause to the :

district court to allow the plaintiff to present evidence and

to amend the complaint. For the plaintiff is clearly entitled

to an opportunity to\amend and to an evidentiary hearing

before the action is dismissed.

5. If This Court Finds that the Arguments S upporting

| Standing Are Insufficient, It Should Remand the

Case to the District Court To Give the Plaintiff an

Opportunity To Amend the Complaint and Present

Evidence

EDL E DONE OAPI IPR RE MOE RR NR RU Lae A Nar ag

We have presented four alternative arguments supporting é

the standing of the plaintiff, the Sierra Club. The first &

contention—that the Sierra Club has standing as a national

organization dedicated to preserving the environment—and k

the third contention—that the Sierra Club has standing as é

the representative of its members who, as American citizens, i

have the right to protect lands held in trust for them— 5

plainly come within the allegations of the complaint (R. 4),

and the district cou.t’s finding, upholding these allegations

(R. 197). The second contention--that the Sierra Club has

standing as a local couservation Organization with a special

interest in the Sierra Nevada Mountains and particularly

Mineral King and Sequoia National Park—is at the least,

easily inferible from the complaint and findings. It is also

supported by the legislative history of the statutes creating

the National Game Refuge and Park (see pp. 23-29 above).

_ The fourth contention—that the Sierra Club has standing 2s

_ the representative of its members who use the area--is not

supported by evidence of record.

“aq

Sb Ot De ews ete

64 —

Rule 8(f) of the Federal Rules of Civil Procedure provides

that “all pleadings shall be so construed to do justice”

Consequently, pleadings should be read liberally to attempt

to sustain them. Beacon Theatres, Inc. v. Westover, 359 US.

500, 506 (1959); Ballou v. General Electric, Inc., 393 F 24

398, 399 (CA. 1, 1968). As this Court stated in Conley y

Gibson, 355 U.S. 41, 47-48 (1957): |

[T]he Federal Rules of Civil Procedure do not require

a claimant to set out in detail the facts upon which

he bases his claim. To the contrary, all the Rules

require is “‘a short and plain statement of the claim”

[Rule 8(a)] that will give the defendant fair notice

of what the plaintiff’s claim is and the grounds upon

which it rests... . Such simplified “notice pleading”

is made possible by the liberal opportunity for dis.

covery and the other factual procedures established

by the Rules to disclose more precisely the basis of

both claim and defense and to define more narrowly

the disputed facts and issues. Following the simple

guide of Rule 8(f) that ‘“‘all pleadings shall be so

construed as to do substantial justice,’ we have no

doubt that petitioner’s complaint adequately set forth

a claim and gave the respondents fair notice of its

basis. The Federal Rules reject the approach tha f

pleading is a game of skill in which one miss by ff

counsel may be decisive to the outcome aid accept |

the principle that the purpose of pleading is to [|

facilitate a proper decision on the merits.

In Surawitz v. Hilton Hotels Corp., 383 U.S. 363, 374

(1966), this Court stated:

The basic purpose of the Federal Rules is to admin

ister justice through fair trials, not through summary

dismissals as necessary as they be on occasion. These

rules are designed ir: large part to get away from some

of the old procedural booby traps which common4aw

pleaders

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