# Amicus Curiae Brief — Sierra Club v. Morton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1972
- **Citation:** 405 U.S. 727

## Text

upreme Court, fe Se

aN IN THE
Supreme Court of the Unitgc States in

OCTOBER TERM, 1970 & ROBERT SEAVER, CLERK |

}4

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 .....-----+++++"

0)

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 -

t

. S (ix) 3

wx

, 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

2

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.

3

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.

4

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

7

8

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

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10

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):

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.

oo

16

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.

II

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

17

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:

18

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

RAT 4,

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9

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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20

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

Ie

¥

21

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

eo

' Mineral King—A Planned Recreation Development, Forest Service,
U.S. Departicat of Agriculture, February, 1969, p. 1.

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22

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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SEQUOIA
NATIONAL PARIrs 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-

LEON

ME a a, me Ce cease Ete aay

eer Dae ete

46

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

te a

Base ey Roa

48

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.

49

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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50

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.

|
|

51

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.

A

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.

St

2

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.

55

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.

56

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.

57

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

a

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 ,

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

f

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61

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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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).

ay
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, ~~
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.

6

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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 could set to prevent unsophisticated litigants
from ever having their day in Court. If rules of pro
ceduze work as they should in an honest and far
judicial system, they not only permit, but should

+ eas
veh ‘

65

as nearly as possible guarantee that bona fide com-
plaints be carried to an adjudication on the merits.

Read in this liberai spirit, the complaint would seem to
encompass all the contentions we have raised.

Similarly, it is appropriate to recognize facts—which we
believe the government will not dispute—concerning the
character of the Sierra Club, its activities and members
since this information is part of the legislative history of
federal statutes, is otherwise a matter of public record, or
is well known and undisputed. The record, like the com-
plaint, should not be read narrowly at this early stage of
the proceedings when there has not yet even been oppor-
tunity for an evidentiary hearing.

If the Court upholds standing, as we strongly urge, because
the Sierra Club is a national conservation organization inter-
ested in protecting the environment, it need not go on to any
of our other arguments. However, if Standing is not found’
on the basis of that contention or of any other of the con-
tentions which the Court finds are supported by the com-
plaint and evidence in their present State, the cause should
be remanded to the district court to allow the complaint to

be amended and evidence to be presented on the other
contentions.

Rule 15(a) of the Federal Rules of Civil Procedure plainly
states that leave to amend “shall be freely given when justice
sO requires.” Interpreting this rule, this Court stated in
Foman y. Davis, 371 USS. 178, 182 (1962):

If the underlying facts and circumstances relied upon
by a plaintiff may be a proper subject of relief, he
ought to be afforded an Opportunity to test his claim
on the merits. In the absence of any apparent or
declared reason—such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the Opposing party by
virtue of the allowance of the amendment, futility
of the amendment, etc.--the leave Should, as the
rules require, be ‘freely given.”

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66

‘ ise fh ee oe

Accord, e.g., Maty v. Grassel Chemical Co., 303 U.S. 197,

200-201 (1938); United States v. Hougham, 364 US. 310,
; 317 (19660); Nagler v. Admiral Corporation, 248 F.2d 319,
j 322 (C.A. 2, 1957); Middle Atlantic Utilities Co. v. S.M.W.
§ Development Corp., 392 F.2d 380, 384 (C.A. 2, 1968);
} Farkas v. Texas Instruments, Inc., 429 F.2d 849, 851 (C.A.
1, 1970).

This rule specificaliy applies when jurisdiction has been
found to be lacking. 28 U.S.C. 1653 provides that “defective
allegations of jurisdiction may be amended, upon terms, in
the trial or appellate courts” and the courts have held that
this section should be liberaily construed. E.g., Martin y.
Ethyl Corp., 341 F.2d 1, 4 (C.A. 5, 1965); John Birch
Society v. NBC, 377 F.2d 194, 198-199 (C.A. 2, 1967);
Cox v. Livingston, 407 F.2d 392, 393 (C.A. 2, 1969).
See also Stern v. Beer, 200 F.2d 794, 795 (C.A. 6, 1952);
Lemmon yv. Cedar Point, Inc., 406 F.2d 94, 95, note 2
(C.A. 6, 1969); Eklund ». Mora, 410 F.2d 731, 732 (C.A. 5,
1969) (amendment after judgment). Similarly, plaintiff
should have the opportunity to present evidence establishing
its standing at a hearing on remand rather than have the
factual issues determined on the basis of affidavits or docu.
ments alone.”©

26If the Court rejects all of the contentions we have made support-
ing the standing of the Sierra Club, we submit the cause should still
be remanded to the district court to allow the joinder of additional
plaintiffs with standing. As the court of appeals recognized (R. 224)
and we have shown above (p. 62), users of the area plainly have
standing. Just as plaintiffs can properly correct jurisdictional problems
by amending the complaint, they can also correct any jurisdictional
difficulty by joining a new plaintiff. Hockner v. Guaranty Trust Co.,
117 F.2d 95, 98 (C.A. 2, 1941). Cf. Finn v. American Fire & Casualty
Co., 207 F.2d 113 (C.A. 5, 1953) (jurisdiction perfected by dismissing
two defendants after trial). ‘
Any other course will simply produce more delay and burden
both the parties and the courts. Other plaintiffs with proper standing
are entitled to bring separate suit. The ‘most fair and expeditious
procedure for all the parties is to allow them to enter the present case
which is already in process.

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Il

THE COURT OF APPEALS ERRED IN REVERSING
THE GRANT OF A PRELIMINARY INJUNCTION "Y
THE DISTRICT COURT

The district court, on the basis of affidavits and supporting
documents without an evidentiary hearing, issued a pre-
liminary injunction against granting any permits for ccn-
struction of the resort or highway (R. 220-201). The court
reasoned that, without the injunction, defendants might
“substantially changle] the existing situation.... [Wle
find that plaintiff has raised questions, concerning possible
excess of statutory authority, sufficiently substantial and
serious to justify a preliminary injunction against both
Agriculture and Interior pending trial of these issues on the
merits or the further order of this court” (R. 198-199),

The court of appeals reversed (R. 208-235). It stated that
in order to obtain a preliminary injunction, “the plaintiff
must establish a strong likelihood or ‘reasonable certainty’
that he will prevail on the merits at a final hearing” (R. 224).
The court then reviewed the merits of each claim and found
“little or no likelihood of success in Opposing the proposed
development upon the ground that there would be an illegal
use of term and revocable permits” (R. 230); that “[wle
cannot find in the [plaintiffs] contentions concerning this
proposed road any degree of substantiality” (R. 231); “we
accept the argument of the Secretary as convincing” con-
cerning the electrical transmission line (R. 232); and “[w]e
find no substance in this argument” relating to the project
interfering with the Sequoia National Game Refuge (R.
234).27 The Court concluded that plaintiff “has not shown
with any degree of certainty that it will or can succeed.
Neither has it shown that it, or its members. or anyone else
will suffer irreparable injury” (R. 234).

"The court of appeals similarly found that the issue of public
hearings concerning the road through Sequoia National Park, an issue
Which we do not discuss, ‘‘cannot be considered a substantial: factor
in this proceeding” (R. 233).

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Peiiattcsitinisens pitts apisnisousulte dt

68

This Court has held (Prendergast v. New York Telephone
Co., 262 U.S. 43, 50-51 (1923)):
It is well settied that the granting of a temporary
injunction, pending final hearing, is within the sound
discretion of the trial court; and that, upon appeal,
an order granting such an injunction will not be dis.
turbed unless contrary to some rule of-equity, orthe
result of improvident exercise of judicial discretion,
Accord, Alabama v. United States, 279 U.S. 229, 231 (1929);
Mitchell v. Penny Stores, Inc., 284 U.S. 576 (1931); United
States v. Corrick, 298 U.S. 435, 437-438 (1936); Deckert y.
Independence Shores Corp., 311 U.S. 282, 290 (1940);
Yakus v. United States, 321 U.S. 414, 440 (1944). See 7
Moore, Federal Practice (2d ed., 1968), 1625,1630-1631.
Similarly, in Chicago v. Fox Film Corp., 251 Fed. 883, 884
(C.A. 7, 1918), the court of appeals stated:
A pendite lite injunctional order will not be reversed
unless there was an abuse of discretion; and this can
only appear from an obvious misunderstanding of the
facts or a palpable misapplication of well-settled rules
of law on the part of the trial judge.
As a result, there are ‘“‘severe limitations’ upon the scope
of review of the courts of appeals. Mytinger & Casselberry,
Inc. vy. Numanna Laboratories Corp., 215 F.2d 382, 384 (CA.
7, 1954).

The broad discretion of the district court and the narrow
review by the appellate courts reflect the nature of a pre-
liminary injunction. A “preliminary injunction...is...
interlocutory, tentative, provisional, and interim, imperman-
ent, mutable, not fixed or final or conclusive, characterized
by its for-the-time-beingness.”” Hamilton Watch Co. v. Benrus,
206 F.2d 739, 742 (C.A. 2, 1953). The trial court is not
supposed to determine the merits but instead merely to keep
the status quo pending determination of the case. See pp.
76-78 below. The determination is usually based, as it was
here, on affidavits without a full evidentiary hearing. Its
assumed that, if there is no appeal, the merits will be tried
promptly and a final determination made.

69

We submit that the district court properly exercised its
discretion in this case. As we will show below, the district
court’s determination to issue an injunction is fully consistent
with equitable principles. Plaintiff has raised serious legal
and factual Questions concerning the construction of a ski
and summer resort in Sequoia Nationa! Game Refuge and
Forest and of a highway and electrical transmission line in
Sequoia National Park. If an injunction had not been issued,
construction would have begun and the harm to the refuge,
forest, and park would have been irreparable. In these
circumstances, the district court properly exercised its dis-
cretion to prevent construction and to preserve the status
quo.

A. The District Court Properly Issued The Pre-
liminary Injunction To Preserve The Status
Quo On The Basis Of Finding That Plaintiff

Raised Substantial And Serious Issues

The district court issued the preliminary injunction in
order to preserve the status quo because “[pl]laintiff has
raised questions, concerning possible excess of statutory
authority, sufficiently substantial and serious to justify a
preliminary injunction... .” (R.199). The court of appeals
reversed on the ground that a preliminary injunction requires
the plaintiff to ‘“‘establish a strong likelihood or ‘reasonable
certainty’ that he will prevail on the merits at a final hearing”
(R. 224). We submit that the district court and not the court
of appeals applied the appropriate standard.

While this Court once stated that [t]he right [to a pre-
liminary injunction] must be clear” (Truly v. Wanzer, 46
U.S. (S How.) 141, 142 (1847)), this Court has since refused
to follow this rule. The Court has squarely held (Ohio Oil
Co. y. Conway, 279 U.S. 813, 815 (1929)):

Where the questions presented by an application
for an interlocutory injunction are grave, and the
injury to the moving party will be certain and irre-
parable, if the application be Wenied and the final

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peter re creey: SME EA PRINT sa

70 |

decree be in his favor, while if the injunction be
granted the injury to the opposing party, even if the
final decree be in his favor, will be inconsiderable,
or may be adequately indemnified by a bond, the
injunction wil! usually be granted.
Accord, Alabama v. United States, supra, 279 U.S. at 231.
Similarly, in Mayo v. Lakeland Highlands Canning Co., 309
VJ.S. 310, 316 (1940), the Court held that, instead of deciding
the merits, the district court should have decided only
“whether the showing made raised serious questions” and
whether failure to issue an injunction would result in irre-
parable injury.

Although the decisions of the courts of appeals are
divided, most cases have held that the plaintiff need only
raise a serious or substantia] or grave question, at least if he
shows that the injury to him will be irreparable if a prelimin-
ary injunction were not to issue. For example, in Hamilton
Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (1953),
the Second Circuit held that if the plaintiff has shown ite-
parable injury, he need only raise “questions going to the
merits so serious, substantial, difficuit and doubtful, as to
make them a fair ground for litigation and thus for more
deliberate investigation.” The decisions of the Third, Fifth
and Eighth Circuits appear unanimously to support this
rule.2® The opinions of the Ninth Circuit, until the decision

28-Third Circuit: Railroad Yardmasters v. Pennsylvania R.R. Co., 224
F.2d 226, 229 (1955).

Seventh Circuit: Selchow & Righter Co. v. Western Printing &
Lithographing Co., 112 F.2d 430, 431 (1940) (must only show need
to protect plaintiff from “great injury” without any “‘anticipated
determination of issues”); Mytinger & Casselberry, Inc. v. Numanna
Laboratories Corp., 215 F.2d 382, 385 (1954).

Eighth Circuit: City of Newton v. Levis, 19 Fed. 715, 718 (1897);
Allison v. Carson, 88 Fed. 581, 584 (1898); Denver & R.G.R. Co. .
United States, 124 Fed. 156, 161 (1903); Love vy. Atchinson, T. & S.F.
Ry., 185 Fed. 321, 331-332 (1911), Magruder v. Belle Fourche Valley
Water User’s Ass'n, 219 Fed. 72, 82 (1914); Council Bluffs v. Omaha
& CB. St. Ry. Co., 9 F.2d 246, 247 (1925); Security Metal Products
Co. v. Kawneer Co., 14 F.2d 569, 572-573 (1926); Special School

(continued)

71

below, also seem uniformly to support this rule and the court
of appeals cited no Ninth Circuit decisions in support of its
decision.2? The decisions of the Fourth, Fifth, Sixth, Tenth,
and District of Columbia Circuits are divided.2° While two
of the five decisions relied upon by the court of appeals
below were from the Second Circuit, many of the earlier

Dist. of Malvern v. Speer, 75 F.2d 420, 422 (1935); Pratt v. Stout,
85 F.2d 172, 176 (1936); Benson Hotel Corp. v. Woods, 168 F.2d
694, 697 (1948); Missouri-Kansas-Texas R. Co. v. Randolph, 132 F.2d
996, 999 (1950); Chicago, B. & Q. R. Co. v. Chicago Great Western R.
Co., 190 F.2d 361, 363-364 (1951); Des Moines v. Continental Illinois
Nat. Bank & Trust Co., 205 F.2d 72y, 732 (1953).

?°Ninth Circuit: Northwestern Stevedoring Co. v. Marshall, 41 F.2d
28, 29 (1930) (“the possibility that the plaintiff may make out a case
on the merits’’); Ross-Whitney Corp. v. Smith Kline & French Labora-
tories, 207 F.2d 190, 194 (1953); Burton v. Matanuska Valley Lines,
Inc., 244 F.2d 647, 650 (1957).

*Fourth Circuit: for:Buskirk v. King, 72 Fed. 22, 25 (1896); West
Virginia Highlands Conservancy v. Island Creek Coal Co., decided
April 6, 1971; against: Sinclair Refining Co. v. Midland Oil Co., 55
F.2d 42, 45 (1932). ;

Fifth Circuit: for:Massie v. Buck, 128 Fed. 27, 31-22 (1904); King
Lumber Co. v. Benton, 186 Fed. 458, 459 (1911); against: Wooten
v. Ohler, 303 F.2d 759, 762 (consider, as one of several factors,
probable ultimate outcome .. . or the likely ultimate holding).

Sixth Circuit: for: American Federation of Musicians v. Stein,
213 F.2d 679, 683 (1954), certiorari denied, 348 U.S. 873; against:
Crane Co. v. Briggs Mf. Co., 280 F.2d 747, 749 (1960); Garlock, Inc.
v. United Seal, Inc., 404 F.2d 256, 257 (1968); citing both s.andards:
Blount v. Societe Anonyme du Filtre, 53 Fed. 98, 101 (1892).

Tenth Circuit: for: Continental Oil Co. y. Frontier Refining Co.,
338 F.2d 780, 781-782 ( 1964); against: Crowther v. Seaborg, 415 F.2d
437, 439 (1969). District of Columbia: for: National Lawyers Guild

District of Columbia: for: National

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A11. Public record. Not legal advice.