Amicus Curiae Brief — Sierra Club v. Morton

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AUG 23 197)

EF RPORFeT Sri

~ ed

IN THE : 3

Supreme Court of the Wnited States

No. 70-34

Sierra Civ, a California corporation,

Petitioner,

vs.

Rocers C. B. Morton, individually and as

Seeretary of the Interior of the United

States, et al.,

Respondents.

On WRIT OF CERTIORARI TO THE UNIT=D STATES

Court 0* APPEALS FOR THE NINTH UIRCUIT

Brief of the County of Tulare as Amicus Curiae

KE. Lewis Rew

Mary Lu Everett

Ray E. McDevitt

3400 Crocker Plaza

San Francisco, California 94104 .

Telephone: (415) 982-0116 :

Cavin E. Batpwin 3

County CouNnsEL

County of Tulare Courthouse

Visalia, California ‘

STeINHART, GOLDBERG, Telephone: (209) 732-5511

Fricenpaum & Lapar Attorneys for the County ;

Of Counsel of Tulare

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

ARO E RS yee ge

» Argument

SUBJECT INDEX

I. The Sierra Club Lacks Standing to Maintain

This Action 22... cee eecececcceceecesteeeeesaeseseeeesecseceeeseeeeee.

A. The Sierra Club Has No Personal or Direct

Interest in the Outcome of This Case

B. The Sierra Club Does Not Have Standing

as a Private Attorney General ............0

Il. There Is No Strong Likelihood or Reasonable

Certainty That the Sierra Club Will Prevail on

tT 3 a | er

A. The Ninth Circuit Applied the Correct

Standard for Preliminary Injunction ............

The Secretary of Agriculture Acted Prop-

5 nen ne ee en

- The Secretary of Agriculture Has Au-

thority to Combine Term and Revocable

Permits for Recreational Areas Exceed-

ING 80 ACTOS nna eeeeeeeceecesseeceeeeeeeseeseeneeoeeseceeee

The Secretary of Agriculture Did Not

Abuse His Discretion in Approving Pub-

lic Outdoor Recreation in Sequoia Na-

tional Game Refuge...

The Secretary of Agriculture Was Not

Required to Make a Formal Finding........

The Secretary of the Interior Acted Prop-

| 5, ne Oe

;

li Suspsect InpEx

1..The Secretary of the Interior Has Ay.

thority to Permit the Construction of a

Power Distribution Line to Serve Minera]

King

2. The Secretary of ‘is Interior Has Au-

thority to Permit the State of California

to Improve the Mincral King Access Road

3. The Secretary of the Interior Did Not

Albnse His Discretion in Approving the

Mineral King Road -0020.222...eeeceececceeceene.

. 4 The Secretary of the Interior Was Not

Required to Hold Hearings on the Road...

III. There Was No Imminent Threat of prekerate

Harm to the Sierra Club ..

COnCIUSION ooo... eeeeeeeneeeeececneeeeeeceedeneceeeceeeeesecereseeeceeeeeeeceecce..

Page

TABLE OF AUTHORITIES CITED

CASES . Pages

Abbott Laboratories v, Gardner, 387 U.S. 136 (1967) 33

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

1087 (9th Cir, L971) eee ceceececececceeceeeeeeeeeeee. 19

A Quaker Action Group v. Hickel, 421 F.2d 111i (D.C.

Cir, 1969) ..... sons letiehdieien eatin cneddnaiieineaanes 31

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

vacated as moot, 320 U.S.707 (1943) 0. 8, 15, 21

21, 24, 33, 34

Baker v. Carr, 369 U.S. 186 (1962). 19

Barlow v. Collins, 397 U.S. 159 (1970)........ 16, 17, 18, 20, 33

Bayless v. Maritine, 430 F.2d 873 (5th Cir. 1970) .......... 31

Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319

(2d Cir.), cert. denied 394 U.S. 999 (1969)... 0... 31

Citizens to Preserve Overton Park v. Volpe, 401 U.S.

M02 (UGTL) 2c ec eeeceeceecececeeececeeneceene 13, 34, 35, 52, 65, 66

Clairol, Ine, v. Gillette Co., 389 F.2d 264 (2d Cir.

MIS) peoninersnnoinnnii AE he ates shea sana ideastToystaaces 31

Crowther v. Seaborg, 312 F.Supp. 1205 (D. Colo. 1970) 19

Crowther v. Seaborg, 415 F.2d 437 (10th Cir. 1969) ... 31

Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965) ............ 74

F.S.C. v. Sanders Bros. Radio Station, 309 U.S. 470

|) ree ef seoneyedaeeeeseaeees 14

First-Citizens Bank and Trust Co. v. Camp, 432 F.2d

481 (4th Cir. 1970) . ie pasicesineateneenencl hs 31

First lowa Hydro-Electric Co-op v. F. P. C., 328 U.S.

152 (1946) nen eegpaete cc eecececceeceenesoesneecessecseseseeeeeeeoeeeeeecece 55

Plast v. Cvhen, 392 U.S. 83, (1968) ............ 14, 16, 17, 19, 23

Foundry Services v. Beneflux, 206 F.2d 214 (2d Cir.

1953) ; ered sea ceeseseeyuse ses vtcvucecsilesen tens 78

Frothingham y. Mellon, 262 U.S. 447 (1923)................ 14

oe Ine. v. United Seal, 'ne., 404 F.2d 256 (6th Cir.

sie) eeeseeeeneencdy 31

Grier v. Bowker, 314 F. Supp. 624 (S.D.N.Y. 1970)...... 31

ony

OILERS Te PT BEE lp

LORIE LAMBS Ht ee Bert 822

lv TABLE OF AUTHORITIES CITED

Pages

Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d

738 (2d Cir. 1953) -- ae 31, 32

Intercontinental Container Transport Corp. v. New

York Shipping Ass’n., 426 F.2d 894 (2d Cir. 1970)... 3

Jones v. Freeman, 400 F.2d 383 (8th Cir. 1968)... 33

Kansas City Power & Light Co. v. McKay, 225 F.2d

924 (D.C. Cir.), cert. denied, 350 U.S. 884 (1955)... 15

Krug v. Lincoln Nat’! Life Ins. Co., 245 F.2d 848 (5th

| eb <2 nearer SCRA een 63

MeMichael v. United States, 355 F.2d 283 (9th Cir.

pL) nn een ee, ee ene ee 33

MeNeil v. Seaton, 381 F.2d 931 (D.C. Cir. 1960) -.0... 74

Nelson v. Miller, 373 F.2d 474 (3d Cir. 1967) .................. 31

Newman v. Holdbeam, Inc., 319 F. Supp. 1889 (S.D.

| Ge | / | 1) nvr nent ee ener ne ener 31

Packard Instr. Co. y. Ans Inc., 416 F.2d 943 (2¢ Cir.

1909) ceed ee Jl

Pacific Power and Light Company v. F. P. C., 184

B20 2 COC, Cie. F900) hee 38

Scenic Hudson Preservation Conference v. F.P.C,,

354 F.2d 608 (2d Cir. 1965) cert..denied, 384 U.S.

DEY FIQGGG) sesceccencgs cectcententsenietscewdteeessesenin eects 19, 23, 26, 66

Seripps-Howard Radio, Ine. v. F.C.C., 316 U.S. 4

6) en ane e ee ere nnn en 21

Sierra Club v. Hardin, 325 F.Supp. 99 (D. Alaska

Ly § ene ene Cn ean iSEeEnen were vena 66, 71

Sierra Club v. Hickel, “433 F.2d 24 (9th Cir. 1970)........ 0, 41

Tennessee Electric Power Co. v. T.V.A., 306 US.

19 bs @ 5! ) | ene nee one eer lt

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

Cir, 1968) .. = 18

TABLE oF AutTHoRITiIzs CITED 4

Pages.

Udall v. Tallman, 380 U.S. 1 (1965) oo. 41, 60

Udall v. Washington, 398 F.2d 765 (D.C. Cir.), cert.

denied, 3893. U.S. 1017 (1969) 33

United Church of Christ v. F.C.C., 359 F.2d 994 (D.C.

eat) an a ce eee ae 19, 23, 26

United States v. Grimaud, 220 U.S. 506 (1911)............ 36

Virginia Petroleum Jobbers Assn. v. F.P.C., 259 F.2d

921 (D.C. Cir, 1958) oeceecccccceeceeeeeeeecee tees 31, 32

ConstiTuTION, STATUTES AND RULES

US. Const. Art. TIT, § 2 oo ccccccccececeeeeec cee. 14

RS LU © ss) rrr 60

Bank Service Corporation .Act of 4962, 12 U.S.C.

$1864, 76 Stat. 1132 occ ccccccccceceececeeeeeeece 18

California Land Conservation Act of 1965, Cal. Gov't.

Code, $$ 51200-95 oe cocceceeeee eee 7

Classification and Multiple Use Act, 43 U.S.C.

EE: 9 perenne .

Environmental Protection Act of 1970, Mich. Comp.

Laws Ann, §§ 691.1201-07 ou 24

Federal Communications Act, § 402(b), 47 U.S.C.

BOY secs es asthe ercecendectdesteeveeree cane Secaeecsetetcoss—..’, 23

Federal Power Act, 41 Stat. 1063 eee eeecreees 23, 54

Food and Agriculture Act of 1965, 79 Stat. 1194 0. 18

Food, Drug and Cosmetic Act, § 701(f) (1), 21 U.S.C.

SOTL(£) (LD) eee ceeececccececeeeseeseneesceeceeeeeeeeeee 24

Interstate Commerce Act, § 1(20), 49 U.S.C. § 1(20) ... 24

Multiple-Use Sustained-Yield Act of 1969, 16 U.S.C.

BOB nc ccccescneecetmeeecneeeeteteeeeeee Bt 49, 72, 73

Outdoor Recreation Programs Act, 77 Stat. 49 (1964) 72

vi TaBLE oF AUTHORITIES CITED

Pages

Outdoor Recreation Resources Review Act, 72 Stat,

7 Ls 3) ee ee ae ean ee a 72

Public Utility Holding Co. Act of 1934, § 24(a), 15

HPs TIM, epee crccces adores re eececip tee cemetasieconecnncany 24

The Raker Act, 38 Stat. 242 nee eetececcccceconeenn 5d

Securities Act of 1933, § 9(a), 15 U.S.C. § 77i(a) ........ 4

Taylor Grazing Act, 48 Stat. 1269 eee eects 2

The Wilderness Act of 1964, 78 Stat. 890 ..222000.. 3, 67,73

Title 5 U.S.C.:

Section 553 ccc... spuceseepeedesageeseeuceeievsdeesseesosarseesys 29, 73, 74

Section 702 220... eeeeeeeceeeeeeeceeeeceeeecececeeeeeees 9, 15, 24, 95, yt

Title 16 U.S.C.:

Section 1 ........... cpa rosessneiuueyonkeebusstvevenceesineneouss 12, 61, 62, 64, 66

oot a 61

coo | in eo 12, 54, 60

C1), ee ef 12, 62, 69

NS 8 C0) 55 | 12, 53, 60

S256 800) | 6 2, 12, 54, 57, 61

S12 000) | et HY

Seeticn 460K once eeeeeeeceeeeeeeeeeeeceeeeeeeeceeeeeseeeenee 49

Section 497 oo... eeceeeeeeeeceeeceeeeeeeneeeeeeeceeseeeeceseeseeeeeseee 11, 36

Section 532 002... seeeeseeeeeeee 69

Section 551 22.0... eeeeeeeeeeeeeeeeee - 11, 36

Section 688 ........0...20.......-. _ 46, 49, 52

Section 796(2) -..........-:.2-ceececeeeeeees : a1

Section 797 (€) ............-..:-cceceeeeceeeeeeeee .. 0

Section [97a ooee.eceeecceceeeecceeecdecesesseceseesecescesseeceseeeeseeceeens 55, 59

Rules of the Supreme Court, Rule 42 ............. 6

Federal Rules of Civil Procedure, Rule 65c ..............- 16 F

EXECUTIVE Reports AND DocUMENTS

25 Ops. Att’y Gen. 470 (1905) .. ab

Agriculture Department Report on S. 4166, 71st

Cong., 2d Sess. (19380) ......... 4)

TABLE oF AuTHORITIES CITED Vii

Pages

Agriculture Department Report on H.R. 11637, 71st

Cong., 2d Sess. (1930) occ eee eecccceccecececeeeeceseceeees 40

Agriculture Department Report on S. 5604, 71st

Cong., 3d Sess, (1931) nee eeceeeeseceececeeseecesneseeneceeeee 45

Agriculture Department Report on S. 773, 72d Cong.,

Ist Sess. (1932) « aay eew tom peeanteeetedstsscenesneaneceneene 40

Memorandum of Understanding Covering the Se-

quoia National Game Refuge (1965) 2.0... 51

Official Report of Proceedings Before the National

Park Service of the U.S. Department of the In-

terior, Fresno, California, November 21-22, 1966 .... 4

Forest Service Report, Mineral King Highway Im-

pact Survey Report, Stage I, (1968) 0.00... 4, 49

Forest Service Report, Proposed Road to Mineral

King (1968) 22... ececcecesecccsseseececsnesesetecseeeeecececeseses 67

Public Land Law Review Comm., One Third of the

Nation’s Land, A Report To The President and

Congress (1970) weestesseseatenensesssnsnseseesasneenesnsnesessneneeeseeeaes 10, 27

REGULATIONS

Forest Service Manual, § 2611.1, R-5, Supplement No.

ed, as amended 1964 20 an o1

36 C.F.R.:

015 Dy 5 mn 44

020 44

DUN arse nteene cane deteneapsctseneceseeesctaddaineeescosecveseceeté aceasta,” 35, 44

025) En 59

5) 5) 59

43 C.F.R.:

0 63

725] A rrr see eeseeweeeses ees 63

1) CPLR. § 2284.4-1(8) occ eccccccccccccccceeeeeeeeeeee 59

44 Fed, Reg. 1405-06 (1969) eee ceeeeeeeeeee = ©

4 Fed. Reg. 6985 0a) 73

6 Fed, Reg. 8336 (1971) etecesteesessens 29

Vili TABLE OF AUTHORITIES CITED

CONGRESSIONAL Bitts, Reports AND DocuMEnts —

. Pages

H.R. 49, 92d Cong., Ist Sess (1971) -2002 ee. 4

H.R. 5074, 92d Cong., Ist Sess. (1971) 202.2 4

H.R. 5075, 92d Cong., Ist Sess. (1971) oo... 24

H.R. 5076, 92d Cong., Ist Sess. (1971) 20. 4

H.R. 8331, 92d Cong., Ist Sess. (1971) 0... 24

H.R. 8626, 92d Cong., Ist Sess. (1971) 20. 4

H.R. Rep. No. 1023, 63d Cong., 2d Sess. (1914) .......... 36, 45

H.R. Rep. No. 1299, 66th Cong., 3d Sess. (1921) 0.0... 56

H.R. Rep. No. 588, 67th Cong., 2d Sess. (1922) 00.00... 57

H.R. Rep. No. 2792, 84th Cong., 2d Sess. (1965) .......... 38

H.R. Doc. No. 92-102, 92d Cong., Ist Sess. (1971) ....4, 67,70

S. 1032, 92d Cong., Ist Sess. (1971) 22. 24

S. Rep. No. 967, 61st Cong., 3d Sess. (1911) 2. 61

S. Rep. No. 754, 72d Cong., Ist Sess. (1932) 0... 39

S. Doe. No. 248, 79th Cong., 2nd Sess (1946) 0... 25

CoNGRESSIONAL HEARINGS

Hearings on H.R. 13679 Before the House Committee

on Agriculture, 63d Cong., 2d Sess. (1914) 00.0... 36

Hearings Before the House Committee on Public

Lands on H.R. 7452 to Add Certain Lands to Se-

quoia National Park, 67th Cong., 2d Sess. (1921)... 57

Hearings on H.R. 4095 Before the House Committee

on Public Lands, 68th Cong., Ist Sess. (1924)....2, 47, 57

Hearings on H.R. 9387 before the House Committee

on Public Lands, 69th Cong., Ist Sess. (1926) ........ 0

Sundry Hearings on Certain Bills Before the House

Committee on Agriculture, 71st Cong., 3d Sess., ser.

hae © (| 5 pee ener eS 37, 39, 42

Hearings on S. 773 Before a Subcommittee of the

House Committee on Agriculture, 72d Cong., 2d

Sess., ser.P (1933) 2. eeecceccececcecseccecesceceee 37, 38, 39, 4

TABLE oF AuvHorITiEs CrTED ix

Pages

Hearings on H.R. 1809 Before Subcomimttee No. 2 of

the House Committee on Agriculture to Facilitate

Use and Occupancy of National Forest Lands, 80th

Cong., Ist Sess (1947) .. . . 40

Hearings on General Committee Business Before the

House Committee on Agviculture, Vol. I (July 17,

1956) ---or--coeecessnseseesescnseessencesesssecnesesscnsenessesseseneseessnseneensesee 41

Fearings on H.R..6891 and Related Bills Before the

Subcommittee on Public Lands of the House Com-

mittee on Interior and Insular Affairs, 89th Cong.,

Ist Sess., ser. 89-36 (1965) oooeeeececccccccecececeeeee 9

Hearings on H.R. 9417 Before a Subcommittee of the

Senate Committee on Appropriations, 92d Cong.,

Ist Sess. (1971) occ. : 43

TEXTS AND ARTICLES

David S. Brower and Richard H. Felter, Surveying

California Ski Terrain, 33 Sierra Club Bull. 97

(1948) svoseeaseesseinenseesseseeseassnsenssasenssnssnsensenesneenseaesssecseenecees 2

Davis, Standing: Taxpayers and Others, 35 U. Chi.

L. Rev. 601 (1968) eect, 19, 21

Ise, Our National Park Policy 326-28 (1961) 0... 62

Jaffe, Standing to Secure Judicial Review: Private

Actions, 75 Harv. L. Rev. 255 (1961) ow. 25, 34

L.A. Herald Examiner, Nov. 22, 1969 oe 9

7 Moore’s Federal Practice § 65.04 (1)

Reich, The Public and the Nation’s Forests, 50 Calif.

L. Rev. 281 (1962) cece 27, 28

Saferstein, Nonreviewability: A Functional Analysis

of “Committed to Agency Discretion”, 82 Harv. L.

IN THE

pupreme Court of the Wnited States

No. 70-34

Sierra Civs, a California corporation,

Petitioner,

Vs.

Rogers C. B. Morton, individually and as

Secretary of the Interior of the United

States, et al.,

Respondents.

ON Writ or CERTIORARI TO THE UNITED STATES

Court or APPEALS FoR THE NINTH CIRCUIT .

Brief of the County of Tulare as Amicus Curiae

STATEMENT OF THE CASE

Mineral King is a valley in the Sierra Nevada Mountains

of California, east of Visalia in the County of Tulare. It

is not a wilderness and it has not been since the gold

and silver mining days of the 1870's (A. 80). In the early

1900’s hydroelectric facilities which are still in use were

built at Mineral King (A. 75), and for several decades it

has been a summer retreat. Many cabins, summer homes,

two small resorts, a commercial pack station, and three

public camp grounds are located there (A. 80).

Most of the land at Mineral King is owned by the United

States and is managed by the United States Forest Service

as part of the Sequoia National Forest. It adjoins Sequoia

National Park which is managed by the National Park

Service. The sole approach to Mineral King is a county-

maintained road which passes through Sequoia National

Park (A. 73); Since its expansion by Congress in 1926,

Act of July 3, 1926, 44 Stat. 818, Sequoia National Park

has bounded Mineral King on three sides. In general hunt-

ing is allowed in national forests but not in national parks.

For that reason Mineral King was designated as a game

refuge in the 1926 legislation to protect both animals and

vacationers from hunters.’

For over twenty years Mineral King has been recognized

as a potential site for one of the world’s finest winter sports

and ski areas.? In 194¢ the Secretary of Agriculture created

the Mineral King Recreation Area, reserving the valley for

public recreation,* and tried to develop a winter sports aree

1. Hearings on H.R. 4095 Before the House Comnuttee on

Public Lands, 68th Cong., 1st Sess. 24 (1924)

9. Mineral King is ‘‘probably the most spectacular site for

commercial [ski] development on the west slope of the Sierra.”

David §. Brower and Richard H. Felter, Surveying Californu Ski

Terrain, 33 SrerRA CLuB Butt. 97, 102 (1948).

3. The order of reservation dated May 13, 1949 and signed

by the Secretary of Agriculture is a map on file with the Forest

Supervisor of the Sequoia National Forest and provides:

By virtue of ihe authority vested in me as Secretary of

Agriculture by the Act of June 4, 1897 (30 Stat. 35) and

the Act of February 1, 1905 (30 Stat. 828), and in accord-

ance with Regulation U-3(b) (Sec. 251.22, Chapter I, Title

36 C.F.R.) of this Department this area, as shown by this

map and legal description, is classified as the Mineral King

Recreation Area, acd is hereby set apart and reserved for

public recreation use and closed to all other occupancy and

use except such uses as the Regional Forester may authorize

as being consistent with recreation use.

so that “the scenic, aesthetic, and recreational resources of

Mineral King can be enjoyed by the American people” (1.R.

52). At that time the Forest Service was unable to interest

any developer in the project because oi the expense of pro-

viding adequate access.

In 1965 the Forest Service published a prospectus inviting

public bids. for the construction and operation of recrea-

tional facilities at Mineral King. The propcsal of Walt Dis-

ney Productions was chosen from six submitted, and the

Forest Service granted Disney a preliminary permit to

prepare a master plan for the Mineral King recreational

area. The preliminary permit provided that a final permit

would be granted only upon Forest Service approval of the

master plan and award by the State of California of the

frst contract for construction of a significant portion of an

access road (A. 166-67).

To make jiublic recreation at Mineral King possible the.

State of California has proposed to construct a two-lane,

all-weather access road (not a high speed “freeway” as the

Sierra Club repeatedly asserts) (A. 54). After two studies

and a public hearing on highway location and design, the

California State Highway Commission adopted a route, a

large portion of which follows the existing road (A. 54-73,

$3-124).

The Mineral King Road was not approved in a vacuum.

The Wilderness Act of 1964, 78 Stat. 890, 892, 16

US.C. §1132(c), required the Secretary of the Interior

to study roadless areas of more than 5,000 acres in national

parks for possible inclusion in the National Wilderness

Preservation System. The Department of the Interior held

public hearings in 1966 in Fresno to gather local views

on its wilderness proposals for Sequoia and Kings Canyon

\ 4

National Parks. Access to Mineral King overshadowed any

other issue discussed at the hearing, with the Sierra Club

strongly opposing a corridor to make recreational use of

Mineral King possible.

Qn the basis of the Secretary’s -recommendations, the

President has now asked Congress to place 721,970 aeres

of Sequoia and Kings Canyon National Parks in wilder.

ness management, while leaving an access corridor to permit

recreational use of Mineral King. The President has also

recommended that a 12,500 acre area of Sequoia National

Park, adjacent to Mineral King, be excluded from wilder-

ness so that it can be enjoyed by the many hikers, campers

and cross-country skiers who will visit Mineral King‘

The Secretary of the h terior approved the segment of

the road which would pass .hrough Sequoia National Park

after reviewing “all material available” (A. 139), including

four studies> which considered the impact on the park

and the forest, fish and wildlife, the giant Sequoias and

streams, possible alternative routes and the opposition

to the road. The road route was chosen to avoid harm to

4. The Departmen: of the Interior held two days of public hear-

ings on November 21 and 22, 1966 in Fresno, California on its

proposals for inclusion of certain areas of Sequoia and Kings Can-

yon National Parks in the National Wilderness Preservation

System. Official Report cf Proceedings Befo.e the National Park

Service of the U.S. Department of the Interior, Fresno, California,

November 21, 22, 1966. The wilderness recommendations of the

Seeretary of the Interior, now embodied in H.R. 8626, 92d Cong,,

1st Sess. (1971), specifically contemplate improvement of the

Mineral King road to permit outdoor recreation at Mineral King.

H.R. Doc. No. 92-102, 924 Cong., Ist Sess. (1971).

5. The four studies were the Report of Route Studies by the

State of California (A. 57-73), the Hartesveldt Report (A. 83-124),

the Clarkeson Engineering Report (A. 140-157) and the Forest

Service Mineral King Highway Impact Survey Report, Stage |,

April 1968.

any of the significant giant Sequoias for which the park

was named (A. 62).

, The final permit the Forest Service proposed to issue to

Disney for the Mineral King development would actually be

two permits: one a thirty-year term permit for approxi-

mately sixty-six acres “constituting the sites physically

occupied by capital improvements” (A. 15); the other a

supplemental revocable special use permit for about two

hundred fifty acres for works necessary “in conjunction

with the facilities and improvements” built under the term

permit (A. 23).° This is the same procedure previously

followed by the Forest Service in establishing eighty-four

other ski areas in the national forests (A. 169).

In January 1969 the Forest Service approved the Disney

master plan. In June 1969, after twenty years of Forest

Service planning for public sutdoor recreation at Mineral

King, and nearly four years after the Forest Service pub-

lily announced its solicitation of proposals, the Sierra Club

brought an action in the district court for the Northern Dis-

trict of California seeking an injunction. It alleged the

Secretaries of the Interior and Agriculture lacked authority

to permit the proposed recreational use of Mineral King and

abused their discretion in deciding to grant such permits.

The trial court, after a hearing on affidavits, granted a pre-

lminary injunction without requiring the Sierra Club to

post a bond.

On interlocutory review of the preliminary injunction

the court of appeals held that the Sierra Club lacked

standing to maintain the action. It also held unanimously

6. All permanent structures will be built on the approximately

66 acres held under term permit. See Reply Brief for Appellants,

pp. 5-6, Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970).

that the district court had abused its discretion by granting

the preliminary injunction, because there was little or no

likelihood the Sierra Club could prevail on the merits,

With the preliminary injunction in force the Nationa]

Park Service has refrained from issuing a permit to the

State of California to improve the access road traversing

Sequoia National Park, and the Forest Service has not

issued its final permit to Disney.

The relevant portions of statutes involved aze set out

in the Appendix to the Brief for Petitioner.

INTEREST OF THE AMICUS CURIAE

This brief of an amicus curiae is filed pursuant to Rule

42 of this Court. It is filed by the County of Tulare, a polit-

ical subdivision of the State of California, and is sponsored

by the authorized law cfficer thereof, Calvin E. Baldwin,

County Counsel. The County is the residence of the people

mos: directly affected by the proposed recreational use of

Mineral King.

The demand for public outdoor recreation facilities is

expanding explosively and Tulare County is trying to help

meet that demand in ways which protect the Sierra from

the raw speculative plunder which has characterized so

much recreational development in the past. For that

reason the County has cooperated with federal and state

authorities over several years in planning for year-round

outdoor recreation at Mineral King.

Land use is also a critical economic concern to the

County. Tulare County is an economically depressed area

with high unemployment and a tax base too small to meet

its growing requirements for public services. Approxi-

mately one-half of the land within its boundaries is in fed-

SelB Ee ERO ALE MENS W RN ec dG ello EM SEERA LDN DL ARE RAO ERI OO

eral ownership and thus exempt from property tax. The

County has inhibited rural subdivisions by encouragiag

the conservation of most of the private agricultural lands

in the County under the California Land Conservation Act

of 1965, Cat. Gov’r. Copr, §§ 51200-95. The Mineral King

recreational area can help the County to provide for orderly

development of public recreational facilities, to cure its

present depressed economic condition and to mitigate the

tax revenue losses associated with its land conservation

program.

SUMMARY OF ARGUMENT

The Sierra Ciub Lack- Standing.

The Sierra Club is an old and respected institution.

In its youth its members, mostly San Franciscans, chron-

ided their adventures—hiking, climbing and exploring in

the Sierra. In its maturity it grew across the nation as an

effective advocate in Congress for the preservation of

nature and the wilderness.

Riding the crest of legitimate public concern for the

environment the Sierra Club now asks this Court to anoint

it as “Guardian ad Litem” of tke public lands to impose

its preference for minimal use of the national parks and

forests on the American people. No one can Gispute the

need to protect our environment from continuing despolia-

tion, but Congress, chosen by the people, is charged by the

Cons‘itution with responsibility for public lands. Congress

las delegated the management of these lands to the execu-

tive branch, not to the courts, and not to private conserva-

tion clubs.

No arm of the government other than the executive is

capable of administering the public lands. This case in-

volves decisions about permits to use approximately 316

acres of Forest Service land. This decision-making process

is repeated time after time, day after day, throughout the

44,000,000 acves of federal public land in California alone,

Neither Congress nor the judiciary is capable of scrutinizing

each land management decision challenged by a “public

interest” club.

The district court acted ‘roneously when it abandoned

well-established principles of standing to permit the Sierra

Club to maintain this action. This Court has recognized

only two ways in which a plaintiff can have standing: either

through establishing his own personal stake in the out-

come, Association of Data Processing Service Organiza.

tions, Inc. v. Camp, 397 U.S. 150 (1970), or by acting asa

private attorney general deputized by Congress in a regu-

latory statute to assert the public interest against an

administrator who strays beyond the limits of his authority,

Associated Industries v. Ickes, 184 F.2d 694 (2d Cir,),

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

The Sierra Club has failed to show a personal stake in

the outcome of this case.? An organization’s personal stake

ean be injury to itself as an organization or as a repre-

sentative of its members. The Sierra Club has shown

neither. It is not harmed as a club. Having previously

suggested that Mineral King was a good place for a sk

area,® the Sierra Club could reverse its opposition tomor- °

7. For a thorough discussion of the personal interest require-

ment and why it should continue to be the test of standing, see

Comment, Standing to Challenge Administrative Action: The Con-

cept of Personal Stake, 39 Gro. Wasu. L. REv. 570 (1971).

8. In 1965 Seymour Ossofsky of the Sierra Club urged 4

House Interior Subcommittee not to allow the Secretary of Agri-

culture to permit skiing at San Gorgonio in Southern California.

He testified :

I also speak as the chairman of the ski mountaineers section of

the Sierra Club chapter in this area. I have been an official of

that organization in various capacities for 7 years, I am also a

]

row. Nor will any of its members suffer special harm if

public winter sports are permitted at Mineral King. The

judicial process should not be manipulated at the whim

of groups which have no personal stake in the outcome of

litigation.°

The Sierra Club, in recognition of its lack of personal

stake in the outcome, asserts that it is a private attorney

general with a mandate flowing from Section 10(a) of the

Administrativo Procedure Act, 5 U.S.C. § 702, to redress the

sins of erring administrators. Congress can designate a

person with no personal stake in the outcome of litigation as

member of the Far West Ski Association. Thus, I speak as a

person devoted to resort skiing as well as wilderness (cross-

country) skiing... .

San Gorgonio is overrated as a ski area in another important

respect—its convenience to Los Angeles... .

But in contrast, it will only be 4 or 5 hours drive to projected

ski resorts in the Sierra Nevadas such as Mineral King and Robin-

son Basin. Goth offer far better skiing than San Gorgonio; and

Mineral King is even now being bid upon for development in the

very near future. Hearings on H.R. 6891 and Related Bills Before

the Subcommittee on Public Lands of the House Committee on

Interior and Insular Affairs, 89th Cong., 1st Sess., ser. 89-36, 344-45

(1965).

9. The Sierra Club is not attempting to vindicate a legal right,

but to impose its current policy views on the Secretary of Agri-

culture and the public. Although it claims to represent the ‘“publie

interest’? in conservation, many conservationists support recrea-

tional use of Mineral King and are actively advising Disney on its

plans. They include: “Horace M. Albright, former director of the

National Park Service and former superintendent of Yellowstone

National Park; Dr. Paul F. Brandwein, president, Center for Study

of Instruction and former director of Gifford Pinchot Institute for

Conservation Studies; Thomas L. Kimball, executive director,

National Wildlife Federation; Bestor Robinson, former president

and board member of Sierra Club, and formerly chairman of the

Interior Secretary’s advisory committee on conservation; Eivind

T. Seoyen, former superintendent of Sequoia and Kings Canyon

National Park and associate director of National Park Service,

and William E. Towell, executive vice president, Aierican For-

estry Association.” L.A. Herald Examiner, Nov. 22, 1969.

a gowns

a private attorney general to enforce the public dbligations

of an executive officer. However, such designations have been

made only in special regulatory statutes which force the

private attorney general to participate in the administrative

process, subject to regulations which protect the integrity

of the administrative process. If Congress desires the

assistance of a roving “private attorney general” to

ferret out agency indiscretion in public land manage.

ment and to place it at the feet of the court, it has not yet

so indicated, either expressly or impliedly. The Ninth Cir.

cuit properly refused to allow the Sierra Club to invete

the private attorney general status.

The district court’s decision ignores Constitutional con-

siderations and the need to safeguard the courts and to

further administrative efficiency. It goes far beyond any

public interest in conservation and the environment, mak.

ing every agency action potentially reviewable. The recent

flood of suits challenging land management decisions has

already prompted the Public Land Law Review Commission

to say: “[W]e are apprehensive about the adverse effect

on public land management programs which extensive

litigation, such as we have witnessed in the last year,

might produce.’”°

In urging reversal of the Ninth Circuit decision, the

Sierre Club asks this Court to abolisu the requirement of

standing when administrative decisions are challenged, and

to interpose years of delay in the execution of management

decisions of all agencies-—across the board—at the instance

of any “public interest” group.

eae

10. Pusiic Lanp Law Review Comm., ONE Tuirp oF THE Na-

TION’s LanD, A Report To THE PRESIDENT AND CONGRESS 256

(1970).

The Sierra Club Will Not Prevail on the Merits

The district court erred in issuing the preliminary injunc-

tion which has already delayed the Mineral King develop-

ment over two years. At the hearing on its motion for a

preliminary injunction the Sierra Club did not show a

strong likelihood vr reasonable certainty that it would

prevail on the merits.

The Sierra Club has attacked the Secretary of Agricul-

ture’s historic practice of combining term and revocable

permits for use of national forest land as an “evasion” of

acreage “limitations” on term permits, The legislative his-

- tory of 16 U.S.C. § 497 which authorizes term permits is

dear bevond argument; term permits were first authorized

in 1915 and their use has heen expanded since that time for

the sole purpose of granting permittees the security of ten-

ure necessary to obtain construction financing. Were it not

for this need the facilities at Mineral King and at eighty-

four other western ski resorts holding combined term and

revocable permits could be located on Forest Service land

held entirely under revocable permit. 16 U.S.C. § 551.

The Sierra Club also asserts that the Secretary of Agri-

culture abused his discretion by deciding to permit public

outdoor recreation in an area described by Congress as the

Sequoia National Game Refuge, A game refuge is an area

where hunting is prohibited except as authorized by the

Secretary. Prohibition of hunting was the sole consequence

of Congress’ designation of the Mineral King area as the

Sequoia National Game Refuge. It did not seal that area off

from public recreational use. To the contrary, Mineral

King was used for recreation long before it became a game

tefuge, and that use has never been interrupted. There are

several public campgrounds at Mineral King, and one

Oe ere

Tt OE TRESS

ree . :

Ges 6 a BE ane

reason Congress banned hunting was to protect vacationers,

Continued recreational use of Mineral King was guaran.

teed by the Secretary of Agriculture over twenty years ago

when he withdrew the area from mining eniry to establish

the Mineral King Recreational Area."

The Secretary’s decison to realize the public winter reere-

ational potential of Minera! King was not a hasty deci-

sion. It was an outgrowth of twenty years of Forest Service

planning which included extensive surveys and studies,

considering, «.nony ot! r things, the impact of such use on ,

the fish and game in we area.

The Sierra Club further asserts that the Secretary of the

Interior threatens to violate 16 U.S.C. § 45e by permitting

construction of a power line across Sequoia National Park

to serve Mineral King. The Secretary has authority to

grant revocable, 16 U.S.C. § 79, or term, 16 U.S.C. $5,

rights-of-way for power lines. Section 45¢ only prohibits

Federal Power Commission licensing of hydro-electric

power projects and associated primary transinission lines.

Since the proposed line is neither a part of a hydro-electric

power project nor a primary transmission line, the Seere-

tary’s authority to grant this right-of-way is not affected by

16 U.S.C, 45e.

The Secretary of the Interior also has auchority to per-

mit the State of California to improve the Mineral King

access road. 16 U.S.C. § § 1, 8. Contrary to the Sierra Club’s

contention, it is neither unlawful nor an abuse of discretion

for the Secretary to permit a road to traverse Sequoia

National Park to serve the adjoining public national forest

lands. The record before the trial court and the recent

National Park Service wilderness recommendations for

11. See note 3 supra.

ie Ps ee ae ee ee

Sequoia National Park demonstrate that the Secretary was

exacting in his consideration of the environmental impact

of the proposed road.

Since the Secretaries of the Interior and Agriculture in

reaching their respective decisions concerning Mineral King

acted within the scope of their delegated authority, did not

abuse their statutory discretion and followed all necessary

procedural requirements, their decisions must stand. Citi-

zens to Preserve Overton Park v. Volpe, 401 U.S. 402.

(1971).

At the hearing on the preliminary injunction the Sierra

Club showed no imminent threat of irreparable harm to

it. No physical alteration of Mineral King would have taken

place for at least a year. On the other hand, the district

court’s issuance of a temporary injunction has damaged

the United States, the State of California, Tulare County

and Disney. |

Since there was no strong likelihood or reasonable cer-

tainty that the Sierra Club would prevail on the merits,

and since there was no immediate threat of harm to it,

it was an abuse of discretion for the district court to issue

a preliminary injunction.

ARGUMENT

|. THE SIERRA CLUB LACKS STANDING TO MAINTAIN THIS

ACTION.

A. The Sierra Club Has No Personal or Direct Interest in the

Outcome of This Case.

The Sierra Club has no standing in its own right because

it has no personal or direct interest in the outcome of this

suit. It has never alleged any individualized injury to itself

either as a club or as a representative of its members.

This Court long ago held that to have standing in his

own right a party must show “he has sustained or is

. aa ee

—_——e ee ee s ig 5 Mee Aull - ee

i Ne

immediately in danger of sustaining some direct injury

. and not merely that he suffers in some indefinite

way in common with people generally.” Frothingham »v,

Mellon, 262 U.S. 447, 488 (1923). This is an outgrowth of

Article III of the Constitution which limits the jurisdiction

of federal courts to cases and controversies. U.S. Consr,

art. III, § 2. In a recent taxpayer suit this Court reempha-

sized that the Constitution requires a plaintiff to have “the

personal stake and interest t.at imparts the necessary

concrete adverseness to such litigation so that standing

can be conferred . . . consistent with the Constitutional

limitations of Article III.” Flast v. Cohen, 392 U.S. 83, 101

(1968). (Emphasis added.)

Traditionally, this personal stake had to be a recognized

legal interest, a “legal right.” This common law rule of

standing was summarized in Tennessee Electric Power Co.

v. T.V.2., 306 U.S. 118, 1387-38 (1939), holding that persons

threatei2d with injury eould not challenge governmental

action “:mless the right invaded is a legal right—one of ©

property, one arising out of contract, one protected against

tortious invasion, or'pne founded on a statute which confers

a privilege.”

Later a substantive\legal right was not required when an

action was brought pursuant to a specific statutory grant

of standing. Thus, this Court in F.C.C. v. Sanders Bros.

Radio Station, 309 U.S\470 (1940), granted standing toa

competitor to challenge a decision of the Federal Commt-

nications Commission under the Federal Communications

Act, which allows appeal by persons “aggrieved”, though

the type of injury to competition involved had ne ‘r been

a traditional legal right. \

The Sierra Club’s alleged interest in this case is in con-

servational, recreational and aesthetic values of Mineral

King and Sequoia Park. This is not a traditional legal

right,” nor do any of the relevant land management statutes

specifically authorize persons to challenge the decisions of

the Secretaries of the Interior and Agriculture. The Sierra

Club, however, bases its claim ef standing upon Section

10(a) of the Administrative Procedure Act, 5 U.S.C. §§ 551-

706.

When passed in 1946, the APA exerted little immediate

influence on the law of standing. It was given a more

restrictive interpretation than specific regulatory statutes

with standing provisions. Courts construed it as merely

“reflecting existing law” and required that a party show a

legal right when standing was based solely on Administra-

tive Procedure Act provisions.* However, the most recent

decision of this Court interpreting that act, Association of

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

US. 150 (1970), indicates that the test of standing under

the Administrative Procedure Act is broader than the “legal

right” test. To have standing to challenge administrative ac-

tion under this act a plaintiff must show an “injury in fact”

to an interest “arguably within the zone of interests to be

protecte:i or regulated by the [relevant] statute, .. .”4

To establish standing under the Administrative Pro-

cedure Act, then, the Sierra Club must first show that it is

“injured in fact” as a club or that it represents its members

12, Historically “legal right” has been very narrowly inter-

preted. As this term is used by courts it means a right recognized

at common law or an interest specifically created by statute. See

Associated Industries v. Ickes, 134 F.2d 694, 700 (2d Cir. 1943).

13. Cf., Kansas City Power & Light Co. v. McKay, 225 F.2d 924

(D.C. Cir.), cert. denied, 350 U.S. 884 (1955).

14. 397 U.S. 150, 152, 153 (1970).

who are so injured. The requirement of an “injury in fact”

to the complaining party is a Constitutional one, and indi-

cates that this Court, although no longer requiring a legal

right in cases arising under the Administrative Procedure

Act, has not dispensed with the direct or personal interest

in the outcome described in Flast.”

The Sierra Club has not satisfied this requirement. It

alleges a general harm to the “public interest,” complaining

that recreational use of Mineral King will result in “perma-

nent destruction of natural values” and “irreparable harm

to the public interest” (A. 212). It has never argued that it

has suffered any special injury as an organization. It

could not; its purely ideoiogical interest in the preservation

of Mineral King and Sequoia National Park is not sufficient

to establish the requisite injury in fact under Data Proc-

essing. .

The Sierra Club has a preference for the preservation ot

the status quo. It is now asserting that bias in dozens of

actions across the entire country. Brieffor the Wilderness

Society as Amicus Curiae, p. 14. By assuming the role of a

roving quasi-public enforcer, the Sierra -~Club relinquishes

any claim it may have to special injury in fact or personal

stake in the outcome of each of these pending suits.”

15. Thus in Data Processing this Court applying its “injury in

fact” test found, “there can be no doubt but that petitioners have

satisfied this test,” 397 U.S. at 152. And in Barlow v. Collins, 397

U.S. 159, 164 (1970), this Court said: “there is no doubt that in

the context of this litigation the tenant farmers . . . have the per-

sonal stake and interest” required. :

16. The Ninth Cireuit reeognized this. Applying the Data

Processing test of standing that court correctly found that the

Sierra Club did not have that direct and personal interest neces

sary for injury in fact:

The complainant does not assert that any of its property will

be damaged, that its organization or members will be en-

dangered or that its status will be threatened. . .> We do not

believe that such club concern without a showing of more

direct interest can constitute standing. .. .(A. 217).

The Sierra Club would have this Court dispense with

the requirement of a direct and personal injury in fact

altogether and find a club’s mere assertion of harm to the

public interest a sufficient basis for standing under the

Administrative Procedure Act. To justify this novel theory

of standing the Sierra Club looks to the issue to be litigated,

diverting attention away from itself. It warns that if it is

denied standing many types of lawless administrative action

will remain beyond the reach of justice. This approach was

rejected in Flast v. Cohen: “the fundamental aspect of

standing is that it focuses on the party seeking to get his

complaint before a federal court and not on the issues he

wishes to have adjudicated.”!"

The Sierra Club has tried to gloss over this lack of

personal interest by misstating the Data Processing hold-

ing. It erroneously contends that, “With or without the

bene‘t of an express statute providing for judicial review,

a person ‘arguably within the zone of interésts protected by

a statute’ has standing to seek review of an administrative

decision based upon the statute,” (B. 29). The Sierra Club

recites only half of the Data Processing holding. A party

within the “zone of interests” has standing only if it ean

first-show it is “injured in fact.” A party such as the Sierra

Club relying upon Data Processing must fulfill both require-

ments.

The plaintiffs in Data Processing and in its companion

case, Barlow v. Collins, 397 U.S. 159 (1970), satisfied both

conditions. In Data Processing computer service organiza-

tions whose competitive positions were directly threatened

had standing because one of the purposes of the revelant

17, 392 U.S. 83, 99 (1968). (Emphasis added.)

Se ae

statute, the Bank Service Corporation Act of 1962, 12

U.S.C. § 1864, 76 Stat. 1132, was to protect the economic

interest of potential competitors from bank expansion into

new markets. In Barlow v. Collins, plaintiffs were tenant

facmers challenging regulations of the Secretary of Agricul.

ture which would have increased the farmers’ economic de-

pendence on their landlords. Here again, plaintiffs were

held to have standing since their injury was palpable ana

the statute, the Food and Agriculture Act of 1965, 7 U.S.C.

§ 1444(d) (10), 79 Stat. 1196, expressly directed the Secre-

tary to protect the tenants’ interests.

The Sierra Club not only lacks the personal interest in

the outcome of the suit required to satisfy the Data Process-

ing requirement of injury in fact, but it also does not fall

within the zone of interests of any relevant land manage-

ment statute. Because it is unable to identify any statute

passed to protect its particular preferences, the Sierra

Club has made an elaborate argument that it is within the

protection of the entire “Conservation Code.” There is no

such thing as a “Conservation Code.” The land manage-

ment statutes found in Title 16 of the United States Code

were passed at different times over several decades for

many different purposes, Calling them the “Conservation

Code” does not create a zone of interests to give the Sierra

Club standing to challenge each section from internal

management y:rovisions to park boundary descriptions.

Until recently there was no judicial authority for the

Sierra Club’s assertion that a plaintiff need have no interest _

of his own in the outcome of litigation. Professor Davis,

writing in 1968 before Data Processing, found that a per

sonal interest was the one consistent requirement in federal

standing law:

Even though the law of standing is so cluttered and

confused that almost every proposition has some ex-

ception, the federal courts have consistently achered

to one major proposition without exception: one who

has no interest of his own at staxe always lacks

standing.7®

The case at bar gives this Court the opportunity to clear

up any uncertainty surrounding standing to challenge ad-

ministrative action under the Administrative Procedure

Act, and to ccnfirm that injury in fact, a direct and personal

stake in the outcome of a suit, is required under the act.

This test satisfies Article ITI and at the same time permits

maximum access to the courts by parties injured by agency

action. This injury need not be to a legal or economic

interest. Injury to health and safety, to a.constitutional

interest, or recreational or aesthetic injury can be a suffi-

cient basis for standing if it is an identifiable injury to an

interest of the plaintiff distinct from persons in general.?®

Since the Sierra Club can show no such direct or personal

interest in the outcome of this suit and is not within the

18. Davis, Standing: Taxpayers and Others, 35 U. Cut. L. REv.

601, 617 (1968).

19. last v. Cohen, 392 U.S. 83 (1968) and Baker v. Carr, 369

US. 186 (1962), (constitutional interest is freedom of religion and

the right te vote); Alameda Conservation Ass’n. v. California, 437

F.2d 1087 (9th Cir. 1971) (aesthetic and recreational injury) ;

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

and safety, atomic testing). Though “injury in fact” is generally

economic, other interests can be protected as well. This Court

80 indicated in Data Processing when, in dicta, it stated that

“esthetic, conservational, and recreational” values could at times be

the basis for standing, 397 U.S. at 153. It is interesting to note,

however, that the two examples cited, Scenic Hudson Preservation

Conf. v. F.P.C., 354 F.2d 608 (2d Cir. 1965) and United Church of

Christ v. F.C.C., 359 F.2d 994 (D.C. Cir. 1966) were both “private

attorney general” suits where the decisions rested on an explicit

Provision in a regulatory statute rather than any finding of “injury

in fact”. See text accompanying notes 19-34 infra.

zone of interests of any relevant statute, it should be denied

standing.

B. The Sierra Club Does Not Have Standing as a Private At.

torney General.

Though the Sierra Club can demonstrate no basis for

standing to assert its own interest, it seeks to champion

the “public interest” in conservation. It asks this Court

to ordain it “Guardian ad Litem” of the public lands,

urging, “it is unlikely that lawless administrative action

will be judicially reviewed and corrected unless at the

behest of some organization acting as ‘private attorney

general’ ” (B. 19).

The Sierra Club’s brief fails to distinguish between

standing based on a party’s personal stake in the outcome of

a suit and standing to assert the public interest, but it is

apparent that the Club has relied primarily on a private

attorney general theory of standing. It does not claim that

the court of appeals erred in failing to find it “injured in

fact.” It does contend, however, that the court should have

permitted it to litigate the public interest as a private

attorney general (B. 25-26).

In arguing that it has standing as a private attorney gen-

eral, the Sierra Club has erroneously relied on cases where

the plaintiffs did suffer a direct or personal injury.” These

20. For example, the Sierra Club relies on both Association of

Data Processing Service Organization v. Camp, 397 U.S. 150

(1970) and its companion case, Barlow v. Collins, 397 U.S. 159

(1970). In each of these cases this Court found that the plaintiffs

were injured in fact, see n.15, supra. Also, in each case this Court

distinguished the situation where a petitioner asserts only the

public interest. In Data Processing this Court found the private

attorneys gencral theory of standing “inapplicable to the present

ease”, 397 U.S. at 153 n. 1. The concurring opinion in Barlow

stated: “The plaintiffs in the present cases alleged distinctive and

discriminating harm, obviously linked to agency action. Thus, I

do not consider what must be alleged to satisfy the standing

requirement by parties who have sustained no special harm them-

selves but sue rather as taxpayers or citizens to vindicate the

interests of the general public,’’ 397 U.S. at 172 n. 5.

«a ee a a ee ae Ge rn Me ee ee ET

cases hold only that a party who has standing to assert his

own interest can also argue to the court that the public

interest will be adversely affected.” In a true “private attor-

ney general” action, the petitioner has no direct or personal

interest in the outcome; he bases standing solely on his rep-

resentation of the public interest.”

This Court has recognized that Article III can be satis-

fied by a party without a direct or personal inverest under a

“private attorney general” theory. The Second Circuit in

Associated Industries v. Ickes, 134 F.2d 694, 704 (2d Cir.

1943), first announced the doctrine and explained how it is

reconciled with Article ITT:

While Congress can constitutionally authorize no one,

in the abseace of an actual justiciable controversy, to

bring a suit for the judicial determination either of

the constitutionality of a statute or the scope of powers

conferred by a statute upon government officers, it can

constitutionally authorize one of its own officials, such

as the Attorney General, to bring a proceeding to pre-

vent another official from acting in violation of his

statutory powers; for then an actual controversy exists,

and the Attorney General can properly be vested with

21. For example, in Data Processing after holding that a com-

petitor is injured in fact, this Court went on to say, “Certainly he

who is ‘likely to be financially injured’. . . may be a reliable attor-

ney general to litigate the issue of the public interest in the present

case,’’ 397 U.S. at 154.

Davis also has made this distinction: “Although one cannot gain

standing by asserting that another private party is adversely

affected or that the public is adversely affected by the challenged

action, any party to a proceeding properly commenced may argue

that a non-party or the public will be adversely affected by the

assertedly illegal decision,” Davis, Standing: Taxpayers and Others,

38 U. Cut. L. Rev. 601, 630 (1968). (All italicized in original. )

22. Cf., Seripps-Howard Radio, Ine. v. F.C.C., 316 U.S. 4, 14

(1942), “these private litigants have standing only as representa-

tives of the public interest.”

areal ta 1 < EAs

authority, in such a controversy, to vindicate the inter-

est of the public or the government. Instead of desig.

nating the Attorney General, or some other public

officer, to bring such proceeding, Congress can consti-

tutionally enact a statute conferring on any non-official

person, or on a designated group of non-official per-

sons, 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 interes‘. Such

persons, so authorized, cre, so to speak, private at-

torney generals. 134 F.2d at 704.

The main condition the Associated Industries case im-

poses on parties invoking the private attorney general

status is that there be a Congressional grant of standing.

Mr. Justice Harlan has explained that this requ ement is

based in part upon the doctrine of separation u powers:

This Court has previously held that individual liti-

gants have standing to represent the public interest,

despite their lack of economic or other personal inter-

ests, if Congress has appropriately authorized such

snits.... I would adhere to that principle. Any hazards

to the proper allocation of authority amony the three

branches of the Government would be substantially,

diminisned if public actions had been pertinently au-

thorized by Congress and the President. I appreciate

that this Court does not ordinarily await the mendate

of other branches of the Government, but it seems to

me that the extraordinary character of public actions,

and of the mischievous, if not dangerous, consequences

they involve for the proper functioning of our consti-

tutional system, and in particular of tle federal courts,

makes such judicial forbearance the part of wisdow.

It must be emphasized that the implications of these

questions of judicial policy are of fundamental sig-

nificante for the other branches of the Federal Govern-

ment. Flast v. Cohen, 392 U.S. 83, 131-33 (1968) (dis-

sent). (Footnotes and citations omitted.)

Congressional authorization of such suits in regulatory

statutes also helps the courts to identify the “public inter-

est” by specifying the particular values an agency must

protect.

One of the best examples of the application of this theory

is Scenic Hudson Preservation Conference v. Federal Power

Commission, 354 F.2d 608 (2d Cir. 1965), cert. denied 384

US. 941 (1966).% In that case, conservation organiza-

tions sought standing under Section 313(b) of the Federal

Power Act, 16 U.S.C. § 825e(b):

Any party to a proceeding under this chapter ag-

grieved by an order issued by the Commission in such

proceeding may obtain a review of such order in the

United States Court of Appeals. ...

The Second Circuit held that the plaintiffs’ assertion of

the public interest in aesthetic values, conservation and

recreation was sufficient for standiag under that Act. In

United Church of Christ v. F.C.C., 359 F.2d 994 (D.C. Cir.

1966), the court recognized plaintiffs’ standing to represent

the interests of the listening audience under Section 402(b)

(6) of the Federal Communications Act, 47 U.S.C. § 402,

23. Though the court did say that the plaintiffs showed a

“special interest,’’ 354 F.2d at 616, and indicated that one group

would suffer economic loss as well, the court neither specifically

identified all the plaintiff organizations nor linked any particular

plaintiff with any particular issue. In fact the court referred to

the plaintiffs’ ‘‘representation of the common interest.’’ Therefore

this decision is better explained as a private attorney general suit

arising under the Federal Power Act than one which turned on

any “‘injury in fact’’ to the plaintiffs.

which allows appeals by persons “aggrieved or whose inter.

ests are adversely affected” by the Federal Communications

Commission.

In both cases, Congressional authorization of the asser-

tion by private parties of the public interest was implied by

the court from the standing provision of a specific regulatory

statute. This Court too has recognized that standing to

assert the public interest “rests on an explicit provision in

a regulatory statute conferring standing.’”* There is no

such regulatory statute to confer standing on the Sierra

Club. The land management statutes at issue contain no

special standing or review provisions; planning statutes in

general do not authorize such suits.”

Lacking the foundation of specific Congressional authori-

zation, the Sierra Club asks this Court to find that Congress

authorized it to vindicate its view of the public interest as a

private attorney general under Section 10(a) of the Admin-

istrative Procedure Act, 5 U.S.C. § 702. To support this the

24. Other such regulatory statutes include: §9(a) of the

Securities Act of 1933, 15 U.S.C. § 77i(a), “person aggrieved”;

§ 24(a) of the Public Utility Holding Co. Act of 1934, 15 U.S.C.

§ 79x(a) ‘‘person aggrieved’’; § 701(f) (1) of the Food, Drug and

Cosmetic Act, 21 U.S.C. § 371(f) (1), persons “adversely affected”;

§ 1(20) of the Interstate Commerce Act, 49 U.S.C. § 1(20), ‘‘any

party in interest’’.

25. Association of Data Processing Service Organization, Ine.

v. Camp, 397 U.S. 150, 153, n. 1 (1970).

26. There have been various Congressional proposals to

change this. See H.R. 49, H.R. 5074, H.R. 5075, H.R. 5076, HR.

8331 and S, 1032 (all 92d Cong., Ist Sess. 1971) which would give

private citizens standing to challenge agency decisions affecting the

environment. These bills are similar to Michigan’s Environmental

Proteetion Act of 1970, Mic. Comp. Laws Ann. §§ 691.1201-07,

which provides that any government agency, “Person”, or “legal

entity” may seek equitable relief against any other governmental

agency, “person”, or “legal entity for the protection of the air,

water, or other natural resources and the public trust therein from

pollution, impairment or destruction.”

Sierra Club argues that the term “aggrieved” under Section

10(a) means the same as “aggrieved” in particular regula-

tory statutes. Congress did not authorize such a broad grant

of standing. The Administrative Procedure Act, unlike

specific regulatory statutes, applies to all administrative

agencies*’ and Section 10(a) was not intended to ma!.2

every citizen a privaté attorney general to police every

administrative activity. A grant of universal standing to

private attorneys general would be repugnant to any notion

that the Administrative Procedure Act “reflects existing

law.’”28

There is no reason to think “aggrieved” within one statu-

tory framework must mean the same as “aggrieved” within

another. Historically, courts have treated standing pro-

visions in regulatory statutes differently from those in the

Administrative Procedure Act though the wording is sim-

ilar.”

The “aggrieved” provisions which have been the basis of

private attorney general suits are contained in statutes

which regulate adjudicatory agencies,” agencies which hold

administrative hearings in the regular course of their

business. These provisions generally permit participants in

27. Professor Jaffe has commented on this distinction:

[There is] no question that it may lat appropriate that.

particular statutes enable anyone, . . . to invoke the discretion-

ary jurisdiction of a court even without regard to ‘grievance’

... But is there a case in the federal system for an across-the-

board grant of such jurisdiction? Jaffe, Standing to Securc

Judicial Review: Private Actions, 75 Harv. L. Rev. 255, 288-

89, n.99 (1961).

28. The statute as enacted conforms to the draft which came

out of conferences between the Government and the American Bar

Association. The Attorney General stated to Congress: “this reflects

existing law.” S. Doc. No. 248, 79th Cong., 2nd Sess. 310 (1946).

29. See text accompanying notes 11-14, supra.

30. See note 24, supra.

26 \

these hearings to obtain judicial review of the final agency

decision. :

The Federal Power Commission is an adjudicatory

agency, and the Federal Power Act gives the right to seek

review to “parties aggrieved,” not persons aggrieved. Con-

gress intended to give more persons standing to appear at

hearings before the Commission, and to insure that parties

could obtain judicial review. Other parts of the act however,

insure that administrative efficiency is safeguarded. Under

the act the Commission itself controls through regulations

who ean be parties.*! Similarly, under the Federal Commt-

nications Act in United Church of Christ v. F.C.C., 359 F.2d

994 (D.C. 1966), the court enlarged standing before the

Federal Communications Commission by allowing inter-

ested non-parties to intervene. The court emphasized that

the administrative process need not be obstructed or over-

whelmed because the Commission could .develop formal

standards to regulate and limit public intervention in Com-

mission proceedings.”

The National Park Service and the U.S. Forest Service,

on the other hand, are agencies concerned primarily with

land management and planning, not adjudication, The land

management statutes which give them authority to carry

out Congressional programs do not provide for review of

these decisions by the general public. Indeed it is difficult

to see how a court could review such decisions absent a

special Congressional mandate:

Adjudication is the ordinary business of the some and

they are well-equipped to oversee an agency’s per-

formance of this work. But what can a court do when it

is asked to review agency planning? . . . Courts.are out

31. See Scenic Hudson Preservation Conference v. F.P.C.,

F.2d 608, 617 (2d Cir. 1965), cert. denied 384 US. 941 (1966).

92. 359 F.2d 994, 1005 (D.C. Cir. 1966).

of their element when they try to pass on the merits

of policy judgments.*

Since land management statutes do not provide for re-

iew, they do not contain the customary safeguards which

protect adjudicatory agencies from abuse. While adjudica-

tory decisions often affect only a narrow class of persons,

agement and planning decisions have a broader impact.

If this Court adopts the Sierra Club argument, every mem-

ber of the public could be a potential plaintiff to chailenge

each land management decision.**

The Administrative Procedure Act applies to all agencies

and Section 10(a) refers to all persons aggrieved. A Con-

gressional inteut that more persons have standing in Federal

Power Cmmission or Federal Communications Commission

adjudicatory proceedings does not necessarily reflect an

intent that,any person should be permitted to obtain judicial

review of all final agency decisions—adjudicatory, regula-

tory and planning. To construe the Administrative Proce-

dure Act as\authorizing such suits would alter fundamen-

tally the relationship of federal courts and administrative

bodies, If there is a need for a change in the decision-making

process in land management, a judicial amendment of Sec-

tion 10(a) of the Administrative Procedure Act which would

affect all the federal agencies is not the proper means to

this end.

33. Reich, The Public and the Nation’s Forests, 50 Cauir. L.

Rev. 381, 403 (1962).

34. The Public Land Law Review Commission recommended

that courts refrain from rethinking land management decisions

at the behest of thyse who were not parties to administrative pro-

ceedings. It said: “to minimize the dilatory effects of court involve-

ment, we recommend that in general the availability of judicial

review be limited to those parties who participated in the adminis-

trative proceedings for which review is sought.” ONE THIRD oF

Taz NatTion’s LAND, supra note 10, at 257. (All italicized in

original. )

If this Court affirms the judgment of the court of ©

appeals it will not leave the public interest in prudent land

management unprotected. More effective means than ju-

dicial review invoked by a “private attorney general” have

been suggested to safeguard this interest.

The Sierra Club urges that standing for conservation

organizations in cases such as the one at bar is “critically

important to America” (B. 19). This is a gross exaggera-

tion. Judicial review of planning decisions is necessarily

limited because Congress has vested broad discretion in

planning agencies. Professor Reich has observed :

[I]t is far from clear that judicial review of a typical

Forest Service or Park Service decision would have

any importance even if it could be obtained. Courts

cannot review the wisdom of agency decisions, but only

the limited question of whether a given action was a

proper exercise of the power granted by Congress.

Given statutory authority as broad as the Multiple Use

Act, it is hard to see how a court could overturn as

‘unauthorized’ any imaginable decision concerning

policy or planning for the forests.*

What is needed in the area of land management is not

more judicial review of final agency decisions, but more

public participation in the decision-making process itself.

Public input before agency decisions are reached ces

not hinder the effective administration of Congressional

programs, yet assures that public opinion will be heard.

This is the crux of the Sierra Club’s petition :

If the public interest is to have any meaningful rep-

resentation in a decision which will have lasting and

irreversible consequences for the disposition of public

lands, then the Sierra Club or some comparable orgat-

ization must have the opportunity to be heard (B. 34).

(Emphasis added.)

35. Reich, supra note 33, at 395-96.

~“

The public already can participate in most agency

rulemaking, because such participation is a matter of right

under Section 4 of the Administrative Procedure Act, 5

U.S.C. § 553.% Public participation in Interior Department

rulemaking has often been unavaileble because matters con-

_ eerning “public lands” are exempt from the act’s provisions.

5 U.S.C. § 553(a) (2). In reeogniticn of the need for more

public voice in land mangement the Department of the

Interior itself has recently provided for public participa-

tion in its rulemaking similar to that insured under Section

503.77

“Congress in enacting the various land management

statutes has given the Departments of the Interior and

Agriculture broad discretion in managing public lands. In

exercising this discretion the administrators were well.

aware of the Sierra Club’s views which were aired repeated-

ly at public hearings ‘and in correspondence. The admin-

istrators rejected the Sierra Club’s viewpoint. Contrary

to the Sierra Club’s entreaty, this Court should not sit as

surrogate administrator to oversee this discretion at the

request of a self-appointed private attorney general.

If the Sierra Club had suffered a direct or special injury,

judicial review would be available. Where it claims no

injury to itself, but only asserts its right to champion the

36. This section provides for general notice of the proposed rule-

meking by publication in the Federal Register giving the time, place

and nature of public rulemaking proceedings, reference to the legal —

authority under which the rule is proposed, and either the terms

or substance of\the proposed rule or a description of the subjects

and issues involved. After such notice, interestod persons have the

opportunity to perticipate through submission of written data,

Views or arguments.

37. 36 Fed. Reg. 8336-37 (1971).

“public interest,” this Court, absent a Congressional man-

date, has a duty not to intervene.

At issue in this case is how much of the public lands will

be barred to public use and who will make those decisions,

Conservationists are not fungible. S»me like birds, some

like trees, and others like clean water. Some are hunters,

some are fishermen, others are boating enthusiasts. Some

like skiing, some surfing, and some the wilderness. The

Sierra Club presently falls into this last category. It has a

narrow bent, but attempts to enfold all conservation, and

indeed all the “public interest” under its protective wing.

The citizens of Tulare County feel that the Mineral King

development is in the public interest because it will provide

badly needed public recreational facilities in a nonwilder-

ness area. They do not want the Sierra Club’s “protection.”

They do not believe it appropriate for this Court to desig-

nate any club which is attempting to vindicate its particular

corporate philosophy as the “Guardian ad Litem” of the

public lands.

il. THERE IS NO STRONG LIKELIHOOD OR REASONABLE

CERTAINTY THAT THE SIERRA CLUB WILL PREVAIL ON

THE MERITS.

A. The Ninth Circuit Applied the Correct Standard for Prelim-

inary Injunction.

The Ninth Circuit correctly held that the Sierra Club

failed to show a “strong likelihood or ‘reasonable cer-

tainty’ ” that it would prevail on th2 merits, and it properly

found that it was an abuse of discretion to grant the pre-

liminary injunction.

The standards for determining whether a preliminary

injunction should issue are well settled. “The award of

a preliminary injunction is an extraordinary remedy, and

will not be granted except upon a clear showing of piobable

success and possible irreparable injury,” Clairol, Inc.

v. Gillette Co., 389 F.2d 264, 265 (2d Cir. 1968). A trial

judge must also consider the inconvenience that an in-

junction will cause the opposing party and weigh the pub-

lic interest. A Quaker Action Group v. Hickel, 421 F.2d

1111, 1116 (D.C. Cir. 1969). These guidelines for determin-

ing whether to issue a preliminary injunction were sum-

marized in Virginia Petroleum Jobbers Assn. v. F.P.C., 259

F.2d 921 (D.C. Cir. 1958), and are used in all circuits

today.®8

In this case, the Sierra Club argues that the district

court was not required to .e the Virginia Petroleum stand-

ards. Citing Hamilton Watch Co. v. Benrus Watch Co.,

38. See, e.g., Intercontinental Container Transport Corp. v.

New York Shipping Ass’n., 426 F.2d 884, 886 (2d Cir. 1970) ; Bay-

less v. Martine, 430 F.2d 873, 877 (5th Cir. 1970); Firsi-Citizens

Bank and Trust Co. v. Camp, 432 F.2d 481, 483 (4th Cir. 1970) ;

Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969); Garlock,

Ine. v. United Seal, Inc., 404 F.2d 256, 257 (6th Cir. 1968); Nel-

son v. Miller, 373 F.2d 474, 477 (3d Cir. 1967).

39. Petitioner contends that the standards set out in Virginia

Petroleum apply only to cases which involve motions for stays of

-* administrative decisions pending appeal, and not to cases involving

motions for preliminary injunctions (B. 41-42). The ostensible

rationale is that in the former case the stay is sought after the

plaintiff has lost on the merits whereas in the latter case the

vlaintiff has had no opportunity to be heard on the merits. This

distinction is a wholly wishful one, quite unsupported by any

authority. It is conclusively refuted by the many recent cases which

have applied the Virginia Petroleum tests to motions for prelimi-

hary injunctions. See Intercontinental Container Transport Corp. v.

New York Shipping Ass’n., 426 F.2d 884 (2d Cir. 1970) ; Checker

Motors Corp. v. Chrysler Corp., 405 F.2d 319 (2d Cir.¥, cert.

denied 394 U.S. 999 (1969); Packard Instr. Co. v. Ans Ine., 416

F.2d 943 (2d Cir. 1969); Garlock, Ine. v. United Seal, Ine., 404

F.2d 256 (6th Cir. 1968). See also Grier v. Bowker, 314 F. Supp.

624 (S.D.N.Y. 1970); Newman v. Holdbeam, Inec., 319 F. Supp.

1389 (S.D.N.Y. 1970).

206 F.2d 738 (2d Cir. 1953), the club contends that since it

allegedly showed that irreparable harm was imminent a

different rule applies; it was not required to demonstrate

that it was likely to prevail on the merits, but merely to raise

questions, “going to the merits so serious, substantial, diffi-

cult and doubtful, as to make them a fair ground for litiga-

tion and thus for more deliberate investigation.” 206 F.2d

at 740.

In so arguing, the Sierra Club misrepresents the holding -

of Hamilton Watch and misstates the facts of this case.

Hamilton Watch did not hold that proof of probable

suecess may be dispensed with whenever the moving party

shows that there is a risk of irreparable harm if the injunc-

tion does not issue. What Hamilton Watch did hold was that

the burden of showing probable success is reduced when

“the other elements are present (i.e., the balance of hard-

ships tips decidedly toward plaintiff) .. .” 206 F.2d at 740.

(Emphasis added.) To tip this balance “decidedly” in peti-

tioner’s fav r, it must be shown: (1) that imminent and

irreparable harm would result were the injunction denied

and (2) that this harm would heavily outweigh the adverse

effects upon the defendant and the public from the grant of

the injunction.

The Sierra Club could not show that the harm which

it would have suffered in the absence of injunctive relief

so heavily outweighed that which others would and did

suffer as a result of its issuance, that the balance of hard-

ships tipped decidedly in its favor.“° Yet only upon such

a shdwing may a court require less than a reasonable

certainty that the moving party will prevail on the merits.

The Ninth Circuit was on firm ground in holding the Sierra

Club to the test laid down in Virginia Petroleum Jobbers

40. See text accompanying notes 103-105, infra.

Assn. v. I’.P.C., 259 F.2d 921 (D.C. Cir. 1958), a test which

it could not meet.

B. The Secretary of Agriculture Acted Properly.

The Sierra Club has challenged the decision of the Secre-

tary of Agriculture to provide public recreational facilities

at Mineral King.

Administrative decisions, including land management

decisions,“ are judicially reviewable in the absence of “clear

and convincing evidence” of legislative intent to the con-

trary. Abbott Laboratories v. Gardner, 387 U.S. 136, 141

(1967). However, tne Sierra Club has confused the issue of

standing with reviewability. The scope of review to be

given to an agency decision at the instance of a party

properly before the court is different from the right to

seek review in the first place. :

The Sierra Club should heed the concurring opinion in

Barlow v. Collins, “When agency action is challenged,

standing, reviewability and the merits pose discrete, and

often complicated issues which can best be resolved by

41.. See, e.g., Jones v. Freeman, 400 F.2d 383 (8th Cir. 1968) ;

‘Udall v. Washington, 398 F.2d 765 (D.C. Cir.), cert. denied, 393

US. 1017 (1969); McMichael v. United States, 355 F.2d 283 (9th

Cir. 1965).

42. In its brief the Sierra Club argues that the Ninth Circuit

has riisplaced the burden of establishing standing, arguing that

“only upon a showing of ‘clear and convincing evidence’ of con-

trary legislative intent should the courts restrict access to judicial

review’? (B. 31). It bases this argument on two cases, Abbott and

Data Processing. In both cases this court referred to a presumption

favoring the reviewability of agency decision.

In Abbott standing was not in issue. This Court was asked to

interpret. Section 702 of the Administrative Procedure Act which

immunizes agency action ‘‘committed by law to agency discretion’’

from judicial review. It emphasized that reviewability of agency

decisions is presumed unless there is clear legislative intent to the

contrary. Similarly, in Data Processing this Court referred to this

presumption of reviewability. There is no such presumption of

standing.

recognizing and treating them as such.” 397 U.S. 159, 170

(1970).

The type of review to be given an administrative decision

has been clearly articulated by this Court in its recent deci-

sion, Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402 (1971). The first inquiry of the reviewing court

will be whether the administrator has acted within the scope

of his authority.

Next the court will decide whether the administrator has

abused his discretion. An administrator’s decision is given

a strong presumption of regularity. Although complete im-

munity from review is disfavored, the scope of judicial

review of discretionary administrative decisions is neces-

‘ sarily limited to minimize the conflict between the judicial

process and administrative process.“ “To demand that

courts give full review whenever a complainant utters the

formula ‘abuse of discretion’ is to hazard a serious misallo-

cation of judicial resources as well as a stifling of agency

and congressional programs.”**

This Court in Overton Park laid down a standard for

judicial review of discretionary administrative decisions

which strikes a balance between immunity fron review and

de »°vo review of all decisions:

Section 706(2)(a) requires a finding that the actual

choice made was not ‘arbitrary, capricous, an abuse

43. Professor Jaffe has warned of “the dangerous tendencies

of applving relaxed notions of standing without restrictive notions

of a ju: ‘cial discretion such as will allow the court to give para-

mount «<'*ht to administrative discretion of both a procedural and

substanvive character.’’ Jaffe, Standing to Secure Judicial Review:

Private Actions, 75 Harv. L. Rev. 255, 285 (1961).

44. Safersteii, Nonreviewability: A Functional Analysis of

“Committed to tzency Discreti.n”, 82 Harv. L. Rev. 367, 375

(1968).

.;-rerrrererv——L—SK

of discretion, or otherwise not in accordance with

law.’ To make this finding the court must consider

whether the decision was based on a consideration

of the relevant factors and whether there has been

a clear error of judgment. ... the ultimate standard

of review is a narrow one. The court is not empowered

to substitute its judgment for that of the agency. 401

U.S. 402, 416 (1971). (Citations omitted and emphasis

added.)

Finally, the reviewing court under Overton Park will look

for procedural errors.

To support the issuance of a preliminary injunction in

this case, then, the Sierra Club had to demonstrate a strong

likelihood or reasonable certainty that the Secretary of

Agriculture exceeded the scope of his authority, abused his

statutory discretion or was in procedural error. The Ninth

Circuit correctly determined that the Club did not meet

this burden. |

1, The Secretary Of Agriculture Has Authority To Combine Term And Revo-

cable Permits For Recreational Areas Exceeding 80 Acres.

Under the terms of the preliminary permit issued by the

Forest Service to Disney in February, 1966, the Forest

Service proposes to issue combined permits to Disney: a 30-

year term permit covering approximately 66 acres of land,

and a non-exclusive revocable permit covering approxi-

mately 250 acres (A. 166). The revocable permit will

actually be a special use permit, which is renewable annually

and terminable at the discretion of the Forest Service at

any time. 36 C.F.R. 251.1.

Congress has authorized both types of permits. The

authority of the Secretary of Agriculture to grant annual

special use permits (so-called “revocable” permits) lies

in the Act of June 4, 1897, 30 Stat. 34. That act authorizes

the Secretary to make “rules and regulations” for the “oc-

cupancy and use” of the national forests, 16 U.S.C. § 551,

and his authority to grant use permits pursuant to this sec-

tion has been confirmed by this Court and by the Attorney

General. United States v. Grimaud, 220 U.S. 506 (1911) ; 25

Ops. Att’y Gen. 470 (1905). “Several thousand” such revo-

cable permits were granted within the first few years follow-

ing the 1897 act. Permanent structures, some “costing

several million dollars’*’ were built under revocable per-

mits. The Secretary ,wanted to encourage construction of

well built facilities and, in 1914, asked Congress for author-

ity to grant term permits giving the security of tewure nec-

essary to obtain financing:

There is at the present time some hesitancy on the

part of persons who want to use national forest land to

construct sumer residences, hotels, stores and other

structures involving a large expenditure, because of

the indefinite tenure of the permits to them which the

present law provides for. At the present time, however,

there are several thousand such [revocable] permits i in

use, upon which structures have been erected. In justice

to those who desire to construct more substantial im-

provements, it is believed that the present law should

be amended to give persons a better right than the

revocable permit now authorized. H.R. Rep. No. 1023,

63d Cong., 2d Sess. 2 (1914).

In 1915 Congress gave the Secretary authority to grant

term as well as revocable permits, Act of March 4, 1915,

38 Stat. 1086, 1101, 16 U.S.C. § 497. Term permits were

limited to five acres, but there was no acreage limit on

45. Testimony of Henry S. Graves, Chief Forester, Hearings

on H.R. 13679 Before the House Committee on Agriculture, 63d

Cong., 2d Sess. 396 (1914).

revocable permits. “{The Secretary of Agriculture] can

issue terminable p<_mits for 80 aeres or 800 acres. The

Secretary cannot guarantee certainty of tenure for moe

than five acres.”“* Five acres were enough to satisfy indi-

viduals. building summer homes or lodges, but as the need

for larger recreational facilities became acute,*? amend-

ments to the 1915 act increasing the allowable acreage and

duration of term permits were sought by the Secretary to

make financing more readily available: “The alternatives

would be either for the Government itself to go into the

hotel, camp and amusement business, which would be prac-

tically unthinkable, or else create the conditions under

which private individuals, under proper control and legal

limitation, could supply the service.’*®

Although the Secretary’s request was unheeded for dec-

ades, in 1956 Congress responded. It amended the 1915 Act

to increase the acreage allowable under term permit to 80

acres and to expand the purposes for which a term permit

could be granted to include commercial development.

The Sierra Club interprets the 1956 enlargement of the

Secretary’s term permit authority under Section 497 as an _

46. Testimony of L. F. Kneipp of the Forest Service, Hearings

om 8. 773 Before a Subcommittee of the House Committee on

Agriculture, 72d Cong., 2d Sess., ser P, at 21 (1933). Earlier, in

1931, R. Y. Stuart of the Forest Service stated that for revocable

permits there is “no area limitation by law and some are consider-

ably more than 160. acres”, Sundry Hearings on Certain Bills

Before the House Committee on Agriculture, T1ist Cong., 3d Sess.,

ser. V, at 66 (1931).

47. Recreation wes the stimulus behind the move to amend the

Act of 1915: “[T]he main purpose behind this particular legisla-

tion is to permit further development of recreational facilities by

vommervial activities, which would facilitate the further use and

occupancy of the national forests,’’ Rep. Hope, Hearings ( 1933),

Siipra note 46, at 6.

48. L.F. Kneipp, Hearings (1933), supra note 46 at 11.

TE EIT «fi

implied limitation of the Secretary’s authority to grant

revocable permits. In fact, the only purpose of this amend.

ment was to broaden the Secretary’s power to issue tern.

permits; Congress in no way intended to limit his. power to

grant revocable permits.*® The House Agriculture Commit-

tee report on the 1956 amendment reflected an awareness

of existing administrative practices. It indicated that Con-

gress did not want to disturb the Secretary’s basic authority

to issue revocable permits under the 1897 Act, but rather

was expanding his authority to issue term permits under

the 1915 Act:

The Department of Agriculture now has adequate

authority to issue revocable permits for all purposes

under the act of June 4, 1897 (16 U.S.C. 551). Its

authority to issue term permits ... would be broadened

by 8.2216... . H.R. Rep. No. 2792, 84th Cong., 2d Sess.

(1965).

The Sierra Club further contends that Section 497 limits

the size of privately financed recreational dev2lopments in

naticnal forests to 80 acres. It argues that the Secretary

has no power to combine term and revocable permits for

developments aggregating more than 80 acres, Combining

term and revocable permits is a long-established admin-

istrative practice of the Department of Agriculture. Since

the power to issue term permits was first granted in 1916,

the Secretary has often exercised it in conjunction with

his power to issue revocable permits. Term permits are

49. The Secretary already had the power to authorize use of

Forest Service land. The amendment was to give him power to

grant more secure tenure for such use. This was emphasized years

earlier by L. F. Kneipp, Id. at 21, ‘‘The Secretary of Agriculture

now has full authority to do everything that will be done under this

pill, except to definitely bind the Government for a period of years.”

(Emphasis added.)

“9

issued for major facilities when definite tenure is needed.

A supplemental revocable permit is also issued if more

land is required. In 1931 the Frest Service described

this practice in testimony before the House Committee on

Agriculture : 3

Experience has proved that 5 acres is insufficient to

permit of the proper development of the most modern

types of outdoor camps, hotels, resorts, sanitoria, ete.

which, in addition to the principal structures, usually

require the related use of lands for the various neces-

sary utilities, recreational services, etc. now regarded

as essential to establishments. At present these are

provided by the issuance of supplemental terminable

permits, which injects an undesirable element of un-

certainty of tenure and adds to routine requirements

of administratior ~ | =

Again in 1933 in a hearing before the House Committee

on Agricultvre, the Forest Service testified :

The only way we can meet the situation is to give them

a term permit for the 5 acres upon which the main

buildings are situated, definitely securing that part of

the project, and to then give them a terminable permit

for the remainder of the area, upon which there is no

statutory limit. Phe Secretary of Agriculture can give

a terminable permit for as much land of that type as

may be necessary."

Congress was advised of this administrative practice re-

peatedly.®?

50. Testimony of Major R. Y. Stuart, Hearings (1931), supra

note 46, at 62.

51. Testimony of L. F. Kneipp, Hearings (1933), supra note 46,

at 15, .

52. CONGRESSIONAL Reports: S. Rep. No. 754, 72d Cong., Ist

Sess. (1932). ConaresstioNnaL HEARINGS: Sundry Hearings on Cer-

In House hearings in 1947 it was recognized that major

facilities in ski resorts would almost always exceed the

5-acre limit on term permits:

Another type is the ski lifts which are installed under

permits on many of our high country winter sports

areas. The ski lift itself, extending up the hill, with

suitable space at each end for necessary structures to

operate it, and a place to sell tickets and what not—and

on most of our winter sports areas we need two or

three of those .:. . and there the aggregate acreage will

almost always exceec 5 acres.”

In 1956 another Agriculture Department witness ex-

plained to the House Committee on Agriculture that winter

sports resorts and other developments often were granted

‘permits ergregating not only more than 5 acres but even

more than 80 acres:

We have many, many permits for summer ihiomes,

stores, resorts, hotels, all sorts of special uss. I havea

list of them here, the type of things which average

more than five acres. We have camp and picaic areas,

with 17 acres. Those are summer camps... . fish hatch-

tain Bills Before the House Agriculture Committee, 71st Cong., 3d

Sess., ser. V, at 62 (1931) ; Hearings on 8.773 Before a Subcommit-

tee of the House Agriculture Comm‘ttee, 72d Cong., 2d Sess., ser.

P, at 1415 (1933) ; Hearings on H.R. 1809 Before Subcommittee

No. 2 of thé House Agriculture Committee, 80th Cong., 1st Sess. 3

(1947). AGricuLTURE DEPARTMENT Reports: Report on 8S. 4166,

71st Cong., 2d Sess. (1930) to the Chairman, Senate Committee on

Agriculture and Forestry (Apr.12, 1930); Report on H.R. 11637,

71st Cong., 2d Sess. (1930) to the Chairman, House Agriculture

Committee (Apr. 21, 1930); Report on 8. 773, 72d Cong., 1st Sess.

(1932) to the Chairman, House Agriculture Committee (Dee. 17.

1932).

53. Testimony of C. M: Granger of the Forest Service, Hearings

Before Subcommittee No. 2 of the House Committee on Agriculture

to Facilitate Use and Occupancy of National Forest Lands, 80th

Cong., Ist Sess. at 3 (1947).

eries, 36 acres; fur farms, 78 acres; mill and factory

sites, 48 acres; nurseries, 68 acres; parks and play-

grounds, 88 acres; reservoirs, 75 acres; rifle and target

ranges, 400 acres; winter sports areas, 400 acres.

The Ninth Circuit correctly held that the 1956 amendment

only increased the Secretary’s term permit authority and

did not detract from his power to issue revocable permits

or to combine term permits and revocable permits:

It seems apparent, as is obvious to both Senate and

House committees that the eighty-acre long-term per-

mit was a necessity to obtain proper financing for

substantial permit improvement, while developments

of less magnitude and permanency, such as trails,

slopes, corrals, could be placed upon land. held under

revocable permit (A. 229).

This is also the way the Secretary has interpreted the

1956 amendment. He has continued to issue combined

permis when necessary, but never granis term permits for

over 80 acres. Etghty-four other ski areas have been de-

veloped on national forests under this type of arrangement.

Many of them have combined term permits for tess-thai-89-

acres with revocable permits covering thousands of acres."®

This well-established administrative practice is entitled to a

strong presumption of validity. Udall v. Tallman, 380 U.S.

1 (1965).

The Secretary has the authority to issue revocable per-

mits without any limitation on acreage, including the

54. Testimony of Mr. Crafts of the Forest Service, Hearings on

General Committee Business Before the House Committee on Agri-

culture, Vol. I, 44-45 (July 17, 1956). ( Emphasis added.)

59. See Appendix, Brief for the United States Ski Association

rant Curiae. Sierra Club v. Hickel, 433° F.2d 24 (9th Cir.

- . ve reepeny LO EC ee WaT. ok sh a ae:

" . Sis pic ta uN \. gr ia pina Se Ba Baas arth Wako 2 high Soo eats leche a .

Ke iba SS GSES UM EA SEE 265 0s Stank Be aa

authority to allow the Mineral King development to be

built totally under revocable permit. Significantly, two

major ski resorts have been built wholly on revocable Forest

Service permits. Combination of term and revocable per-

mits merely makes it possible for the developer to obtain

construction financing; it does not make the development

illegal.

Contrary to the Sierra Club’s contention, the Secretary

of Agriculture has not combined term and revocable per-

mits to circumvent an 80-acre “limitation.” The history of

this administrative practice reveals that the Secretary uses

term permits only where absolutely necessary :

The long-established practice of the Department of

Agriculture is to restrict the area covered by special-

use permits to the minimum consistent with the needs

of the applicant. In the great majority of cases, the

permitted areas would be greatly below the maximum

established by the bill, which would be attained only

when absolutely necessary to meet clearly estabiished

needs.

In this case the Secretary proposes to issue a term permit,

not for 80 acres, but only for about 66 acres because that is

all that is needed to cover the major Mineral King facili-

ties.°° The supplemental p.rmit will cover an area of

approximately 250 acres where no structures will be located.

56. Two ski resorts use public land under revocable special use

permit only. Mount Snow in.Green Mountain National Forest in

New Hampshire represents a $2.9 million investment on 911 acres.

Multipor Ski Bowl at Mount Hood National Forest in Oregon

lies on 640 aeres of public land with improvements of $800,000.

57. Hearings (1931), supra note 46, at 62.

58. This is not a case where, as the Sierra Club argues (B. 46)

“The Secretaries are under pressure to commit public lands to

commercial exploitation, both to justify budgetary requirements of

their agencies and to please powerful and persuasive applicants

for development permits.’’ The Mineral King development was

The 1956 legislation was enacted to stimulaie private

investinent in public recreational facilities in national

forests. The Sierra Club must not be allowed to twist it

into a device to block the Mineral King recreational area

and to close dozens of other ski areas in western United

States, virtually ending skiing as a permissible form of

outdoor recreation west of Denver.®

The Sierra Club, although ‘recognizing the Secretary’s

authority to issue revocable permits (B. 51) further argues

that the revocable permit is invalid because it is neither

“revocable” nor “terminable.” The foundation for this

remarkable argument is not the language of the permit

itself—indeed by its very terms it is revocable at the

contemplated by the Agriculture Department for over 20 years.

Stimulus for the development came from the Department itself,

which publisaed a request for competitive bids, not from any

private developer.

59. Most of the 84 ski areas presently on National Forest land

holding combined term and revocable permits would be illegal if

Section 497 were given the Sierra Club’s strict construction. This

vas indicated in Department of Agriculture testimony in recent

Senate Appropriation hearings:

Question. Will this suit [Sierra Club v. Morton] have any

effect on other facilities authorized by the Forest Service?

Answer. There are 84 recreational facilities authorized in

National Forests and based upon permits similar to those

under attack in this suit. Depending upon the outeome of

this suit, there could be some effect on the permits authorizing

these facilities. If the outcome is favorable to the Govern.

ment, the permits authorizing these facilities will not be

affected. If the outeome is unfavorable, then each of these

permits would be without authority and, therefore, would be

illegal. Seven permits could be covered under existing

authority, but the remaining 77 could not. These then would

technically be in trespass, the facilities would have to be

removed, and the sites restored. New legislation would be

necessary to allow the continued oceupaney of National Forest

land. Hearings on H.R. 9417 Before a Subcommittee of the

Senate Committee on Appropriations, 92d Cong., Ist Sess.

2922 (1971).

discretion of the Forest Service*—but the availability of

the Forest Service appeal process to the terminated per-

mittee. Under the Forest Service regulations appeal to the

Board of Forest Appeals would be available.

This Board would not, as the Sierra Club argues, test

the grounds for the decision but would decide only whether

the contested decision was “contrary to, or in conflict with,

the factz, law or the regulations of the Secretary of Agri-

culture.’*! The burden of establishing errors or omissions

would rest on the complaining party.” Since the only pro-

tection the regulations afford a special use permittee uncer

a revocable permit is that such permit “may be revoked or

cancelled only by the Secretary of Agriculture or by an

officer of the Forest Service superior in rank to the one

by whom it was isued,”® such a superior officer could revoke

the permit for any reason and still be upheld by the Board.

These regulations and appeal procedures do not in any

way detract from the Forest Service’s express contractual

right to revoke the proposed permit. If the Sierra Club’s

position were sound, since all denials of permits are appeal-

able, no Forest Service permit would ever be revocable. This

is clearly unreasonable. .

The Sierra Club further questions whether revocable

permits to use land on which permanent structures are built

are in fact revocable. Expensive improvements have been

60. Section 15 of the proposed permit (A. 24) deals with terni-

nation stating “this permit may be terminated upon breach of any

of the conditions herein or at the discretion yef the Regional

Forester or the Chief, Forest Service.” A permit “terminable at

the discretion” of a party is revocable at will.

61. Forest Service Regulations, 36 C.F.R. § 211.21.

62. Id. § 211.24.

63. Id. § 251.1.

erected on Forest Service land under revocable permits for

years. This practice was cited as early as 1914 by the Secre-

tary of Agriculture who wrote that “several thousand”

revocable permits were in use under which structures had

been built.* .

In 1930 Secretary of Agriculture Hyde noted:

There has also been a consistent increase in the

quality and value of the improvements constructed on

these lands [National Forests] under the permits is-

sued by this Department. Some of the hotels and

resorts constructed under special-use permit represent

investments in excess of $100,000, and many individual

summer homes represent investments of $5,000. Other

developments are proportionately permanent and ex-

pensive. !

At the present time there are two ski resorts built entirely

under revocable Forest Service permits.** The fact that

permanent or expensive structures are built under a revo-

cable special use permit does not destroy the power of the

Forest Service to revoke the permit in its diseretion.

In this particular case, contyary to the Sierra ‘Club’s

allegations, no permanent structures will be built at Mineral

King under the proposed revocable permit. The garage and

the ski lift towers will both be erected under the term

permit. The revocable permit will include ski litt clearing,

ski runs, and service road. The proposed permits are in

fact “terminab!e” and “revocable.”

64. H.R. Rep. No. 1023, 63d Cong., 2d Sess, 2 (1914),

65. Agriculture Department Report on 8. 5604,-71st Cong., 3d

Sess. to the Chairman, Senate Committee on Agriculture and For-

estry, Jan. 29, 1931. (Emphasis added.)

66. See note 56, supra.

67. See note 6, supra.

2. The Secretary Of Agriculture Did Not Abuse His Discretion In Approving

Public Outdoor Recreation In Sequoia National Game Refuge.

The Sierra Club contends that the Secretary of Agricul-

ture abused his discretion when he approved of the Mineral

King recreational area in Sequoia National Game Refuge.

Under Overton Park this decision is entitled to a strong

presumption of regularity and will not be overturned unless ~

the Secretary failed to consider all relevant factors or his

decision was clearly erroneous.

Section 6 of the 1926 legislation expanding Sequoia Na-

‘tional Park designated Mineral King as a game refuge and

prohibited “the hunting, trapping, killing or capturing of

birds and game or other wild animals” at Mineral King

except under regulations of the Secretary of Agriculture.

44 Stat. 818, 821, 16 U.S.C. § 688. Specifically contemplating

multiple-use management of Mineral King the act con-

tinues:

Provided further, That the lands included in said game

| refuge shall continue to be parts of the Sequoia Na-

: tional Forest and nothing contained in this section shall

prevent the Secretary of Agriculture from permitting

| other uses of said lands under and in conformity with

the laws and rules and regulations applicable thereto

so far as may be consiste:it with the purposes for which

said game refuge is established.

The purposes for which the game refuge was established

were stated in the act:

Provided, That it is the purpose of this section to pro-

tect from trespass the public lands of the United States

and the game animals which may be thereon, and not

to interfere with the operation of the local game laws

as affecting private or State lands. (Emphasis added.)

In 1924 hearings the Chief of the Forest Service ex-

plained these purposes, stating that hunting should be

prohibited at Mineral King for three reasons: |

—to increase the deer herds,

—to prevent poaching across park boundaries, and

—to keep the people who use the area for recreation

from being shot.

He said:

The third reason is that in the vicinity of Mineral

King is quite an intensely developed recreational area

under national forest administration. There are a good

many campers in there, There are a good many summer

home permits held by people who have constructed

summer cabins and who take their families ~'p there for

the entire season, and on account of that inteasive rec-

reational development we think it is preferable to

exclude hunting from the region. [earings on H.R.

4095 Before the House Public Lands Committee, 68th

Cong., lst Sess. 24 (1924).

The Secretary of Agriculture Considered All Relevant Factors.

There is scant likelihood that the Sierra Club could

prevail on its assertion that the Secretary of Agriculture

abused his discretion by deciding to permit outdoor recre-

ation at Mineral King. This was no hasty decision.

Development of a ski area has been under consideration

for over twenty years. In 1949 the Secretary established

the Mineral King Recreation Area and sought private cap-

ital for the construction of facilities for skiing. In 1965 the

' Secretary again sought capital for construction of public

recreational facilities at Mineral King.

The Secretary scrutinized every possible effect of

recreational use on the Mineral King terrain and game be-

fore approving the master plan in February, 1969. Disney

itself conducted extensive studies and surveys which were

available to the Secretary including:

[R]leports on ski area and resort planning; low and

high altitude vertical photography and topographic

mapping of Mineral King; detailed data on various

rock and soil tvpes, and geological conditions in the Vil-

lage and proposed parking area; studies on sanitation,

waste disposal, water systems, meteorology and ava-

lanche control; studies on transportation systems to

bar automobile traffic j-om the Mineral King Valley;

and other substantial research and planning reports

(A. 177).

Preparation of a master plan supported by such extensive

investigations cost Disney over $750,000 (A. 177).

Within the Forest Service, the Division of Recreation

consulted with the Range and Wildlife Management Div:-

sion long before the master plan was prepared and ap-

proved (A. 130). In 1967 the Range and Wildlife Manage-

ment Division was critical of some ecological aspects of

the proposal. However it recognized “it is imperative to

retain much of the original basic ecological uniqueness of

this basin and that this is possible with careful, thoughtful

planning” (A. 131).

The Secretary also considered the possible impact on

fish (A. 129) and game (A. 142, 143). In announcing the

master plan, the Regional Forester emphasized :

Our goal is to. provide a needed public service so that

“he scenic, aesthetic and recreational resources of

Mineral King ean be enjoyed by the American people

as part of their heritage. At the same time, we intend

to work with the Disney organization to insure that

the development can be accomplished without sub-

stantial impairment or permanent, undesirable, eco-

logical impact (T.R. 52). (Emphasis added.) _

One of the road surveys summarized the consideration of

all aspects of the Mineral King development:

Outdoor recreation would be the primary benefit from

the Mineral King development. With careful planning

an. supervision, soil losses would be minimal, Very

little timber volume is within the right of way. No

fishery resources are directly involved, and the high-

way parallels deer migration routes. Anticipated

impact on fish and wildlife resources are minimal... .

The proposed highway, as presently planned, would

have no major adverse effects on the Sequoia National

Forest and would make available a greatly enlarged

\ recreation resources base to meet public needs.®*

There Is No Clear Error of Judgment.

Federal land management statutes as a whole reflect a

Congressional desire that public lands be administered to

promote harmonious and coordinated management of cheir

many resources. This is the spirit of the Multiple Use-Sus-

tained Yield Act of $960, 74 Stat. 215, 16 U.S.C. §§ 528-31,

which catalogues the permissible uses of National Forest

land: “outdoor recreation, range, timber, watershed, and

wildhit® and fish purposes,” and of the act which declared

Mineral King a game refuge, while encouraging its use for

other edmpatible purposes. 44 Stat. 821, 16 U.S.C. s§ 688.

Recreation is a legitimate “se of national forest land.

It cannot be inconsistent per se with a game refuge"; all

national parks are also game refuges and recreational use

of such. areas is encouraged. Winter sports resorts—

68. Foresk\Service, Mineral King Highway Impact Survey Re-

port, Stage I, April 1968 at 26. \

69. 16 UAC. § 460k, 76 Stat. 653, specifically permits recrea-

tienal use of areas within the National Wiidiife Refuge System

compatible with the purposes for which such areas were established.

\ \

\ | \

ski areas—have been built entirely in national parks,”

There is nothing about the designation of an area as a game

refuge which subjects it to use restrictions more stringent

than those applied in national parks.

Since recreational use of a game refuge is not per se

arbitrary or capricious, it was improper for the trial court

to enjoin recreational use of Mineral King unless the pro-

posed development is so wholly inconsistent with the pur-

pose of the Sequoia National Game Refuge as to overcome

the strong presumption of regularity to which the Secre-

tary’s decision is entitled. The purpose of the Sequoia Game

Refuge was to protect the game animals, primarily the

herds of deer, to prevent poaching in the adjacent national

park, and to protect vacationers who use the area. Since

Mineral King is not a part of the park itself, Congress at

least wanted to “perpetuate the protection now offered by

the National Park.””

At present controlled hunting under state stiypervision is

required to controi the animal overpopulation in Mineral

King. In 1926 when the Sequoia National Game Refuge was

established the animals thought to need protection were

bear and deer. Wildlife refuges, as tools to protect game,

have now fallen out of grace with wildlife managers. On the

Sequoia. National Game Refuge, as on most other game

refuges, controlled hunts are now allowed. Under the regu-

lations of they Calivornia Department of Fish and Game

both deer and bear are hunted in Mineral King today, The

game management problem in Mineral King is not one of

70. E.g., the Badger Pass ski area is entirely within Yosemite

National Park.

71. Hearings on H.R+.9387 before the House Committee on

Public Lands, 69th Cong., Ist Sess. 58 (1926).

preserving the last remnants ‘of vanishing species, but

rather one of controlling population so that the animals

will not, through overgrazing, destroy their habitat.”

The record shows the Secretary’s consideration of all rele-

vant factors, including the impact of Mineral King on fish

and game. It was neither arbitrary nor clearly erroneous

for the Secretary of Agriculture to approve of the

Mineral King development knowing of the overpopu-

lation of animals in the refvge and the urgent need for out-

door recreational sites. The Secretary merely followed the

statutory mandate for multiple-use management to insure

the balanced use of public lands. This decision is entitled to

a strong presumption of validity. There was more than

72. The area is now managed under a Master Cooperative

Agreement between the Forest Service and the California Depart-

ment of Fish and Game dated April 15, 1953, Forest Service

Manual, § 2611.1, R-5, Supplement No. 37, amended 1964, and a

Memorandum of Understanding Covering the Sequoia National

Game Refuge, exceuted by the National Park Service and the

Forest Service in October, 1965, and by the California Fish and

Game Commission and the California Department of Fish and Game

in January, 1966. The Memorandum of Understanding provides in

‘part:

WHEREAS, the investigations made by the Department, the

Forest Service and the Park Service have shown that the deer

population of the Refuge has increased to a level where these

animals have caused damage to their range and depletion of

valuable native species of vegetation on the adjoining Sequoia

National Park and Pras

WuHenreas, there has been need to authorize and hold special

deer hunts on the Refuge in order to reduce the deer popula-

tion to a level in balance with the habitat, and there will con-

tinue to be a nced to authorize deer hunting in order to remove

surplus animals, and...

WHEREAS, investigat#uns made by the Department, the

Forest Service, and the Park Service have shown that the bear

population within the Refuge has increased to a level where

these animals have caused damage to both Federal and private

property within and adjacent to the Refuge and that there

exists a need to control the number of bears withi: the Refuge

PLEVEN EEE SPOTL MIE

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enough evidence to support the Ninth Circuit’s finding that

the Sierra Club was not likely to succeed on this issue: “We

find no substance in this argument” (A. 234).

3. The Secretary of Agriculture Was Not Required to Make a Formal Finding.

The Sierra Club cites one alleged procedural error by

the Secretary of Agriculture. It claims he has neglected to

make a finding that recreation at Mineral King is consis-

ten. with the Sequoia National Game Refuge and argues

that “This failure was an abuse of discretion” (B. 65).

_ This argument is similar to the one advanced by the

plaintiffs in Overton Park. Plaintiffs there alleged that a

formal finding was required by the Secretary of Trans-

portation that there were no “feasible and prudent” alter-

natives to the selected road route. This Court in rejecting

that contention held:

Undoubtedly review of the Secretary’s action 4¢°

hampered by his failure to make such findings, but

absence of formal findings does not necessarily require

that the ease be remanded to the Secretary. Neither

the Department of Transportation Act nor the Federal

Aid to Ilighiways Act requires such formal findings. ...

And, although formal findings may he required in

some cases in the absence of statutory directives when

the nature of agency action is ambiguous, these situa-

tions are vare. Plainly, there is no ambiguity here,

the Secretary has approved the construction of I-40

through Overton Park and has approved a specific

design for the project. 401 U.S. 402, 417 (1971). (Cita-

tions omitted and emphasis added.)

In this case the Secretary of Agriculture was authorized

to use game refuge lands for purposes “consistent with the”

purposes for which the game refuge is established,” 16

U.S.C. § 688, but the statute requires no formal finding.

53 @

There is also no ambiguity in the Secretary’s action; he has

approved the Mineral King master plan and proposes to

issue a 30 year permit to Disney. As in Overton Park it is

not an abuse of discretion for him to act without a formal

finding.

res a

C. The Secretary of the Interior Acted Properly.

The Sierra Club has also challenged two administrative

decisions of the Secretary of the Interior—the approval of

a transmission line and of a road traversing Sequoia Na-

tional Park to permit public enjoyment of Mineral King.

1. The Secretary of the Interior has authority to permit the construction of

a power distribution line to serve Mineral King.

The Sierra Club contends that the 1926 legislation ex-

panding Sequoia National Park prohibits the Secretary of

the Interior from granting any right-of-way for electrical

transmission and distribution lines through Sequoia® Na-

tional Park without first obtaining Congressional approval.

Act of July 3, 1926, 44 Stat. 820, 16 U.S.C. § 45¢.%8 This

interpretation of Section 45¢ is untenable.

The purpose of Section 45¢ was to give the lands added

to Sequoia National Park in 1926 the same protection that

Congress previously had given all other national park lands

against Federal Power Commission licensing of hydro-

electric power generation facilities and associated primary

transmission lines within their limits.

73. The portion of Section 45¢ in issue contains the following

' prohibition :

Provided, That no permit, license, lease, or authorization for

dams, eonduits, reservoirs, power houses, transmission lines,

or othle works for storage or carriage of water, or for the

development, transmission, or utilization of power within the

limits of said park as constituted by said sections, shall be

granted or made without specifie authority of Congress.

The Secretary of the Interior has had specific authority

since 1901 to grant revocable rights-of-way through Sequoia

National Park for electrical plants, poles and lines.” In

1911 Congress also gave the Secretary power to grant term

rights-of-way.”

In 1913 one of the most dramatic conservation battles

of the century culminated with the passage of the Raker

Act, Act of December 19, 1913, 38 Stat. 242, authorizing

the Citv of San Francisco to construct Hetch Hetchy Dam

and Reservoir within Yosemite National Park on the Tuo-

lumne River. The memory of the Hetch Hetchy fight had

not dimmed when, in 1920, the Federal Power Act“ was

passed, giving the Federal Power Commission authority to

license hydro-electric power development projects on the

public lands. This act was “the outgrowth of a widely sup-

ported effort of th» conservationists to secure enactment of

a complete scheme of national regulation which would pro-

mote the comprehensive development of the water resources

74. “The Secretary of the Interior is authorized and empowered

under ceneral regulations to be fixed by him to permit the use of

rights-of-way through the publie lands, forest, and other reserva-

tions of the Un'ted States, and the Yosemite and Seauoia National

Parks, California, for electrical plants, poles, and lines for the

generation and distribution of electrical power, and for telephone

and telegraph purposes. .. .” Act of February 15, 1901, 31 Stat.

790, 16 U.S.C. § 79.

75. “The head of the department having jurisdiction over the

lands be, and he hereby is, authorized and empowered, under

general regulations to be fixed by him, to grant an easement for

rights-of-way, for a period not exceeding fifty vears froin the date

of the issuance of such grant, over, across, and upon the public

lands and reservations of the United States for electrical poles and

lines for the transmission and distribution of electrical power. .. .”,

Act of March 4, 1911, 86 Stat. 1253, 16 U.S.C. § 5.

76. Act of June 10, 1920, 41 Stat. 1063 (1920). At that time the

act was ealled the ‘‘Federal Water Power Act.’’ The name was

changed to the ‘‘Federal Power Act’’ in 1935. 49 Stat. 863.

of the nation, insofar as it was in the reach of the federal

power to do so... .” First Iowa Hydro-Electric Co-op v.

Federal Power Commission, 328 U.S. 152, 180 (1946),

The power of the Secretary of the Interior to grant

rights-of-way under the 1901 and 1911 statutes was super-

seded by the Federal Power Act as to projects for the gen-

eration and transmission of hydro-electric power.”? One

year later Congress took some of this power away from

its newly created Commission ag well, protecting the na-

tional parks and monuments from hydro-electric intrusion

by providing: .

[N]o permit, license, lease or authorization for dams,

conduits, reservoirs, power houses, transmission lines

or other works for storage or carriage of water, or for

the development, transmission, or utilization of power,

within the limits as constituted March 3, 1921, of any

national park or national monument shall be granted

or mad: without specific authority of Congress. 41 Stat.

1353, 16 U.S.C. §797a (Supp. 1971).78

Tl. The Federal Power Act created the Federal Power Com-

mission and gave it jurisdiction to license “dams, water conduits,

reservoirs, power houses, transmission lines or other project works

...”, Aet of June 10, 1920, 16 U.S.C. § 797(e). Section 796(11)

defines “project” as the: .

[c]omplete unit of improvement or development consisting of

a yower house, all water conduits, all dams and apurtenant

works and structures . . . the primary line or lines transmit-

ting power therefrom to the point of junction with the

distribution system or with the intereonnected primary trans-

mission system. ...

78. The reason for this amendment was explained by Repre-

sentative Eseh in introducing the bill. He testified :

[T]he object of the bill is to modify the Federal Water Power

Act so as to eliminate from its provisions national parks and

monuments. When the Act was originally passed we supposed

we had sufficiently safeguarded national parks and monu-

ments so that there would not be constructed therein any

water power or reclamation projects. However, the President

was in doubt as to whether he would sign the bill which was

ae 4 \ \

% Lye

As a concession to the power interests this amendment

applied only to national parks or national monuments “as

constituted March 3, 1921.’”* Its applicability to new parks

or additions to parks was to be decided by Congress at a

later time:

Should hereafter new parks or monuments be created

by act of Congress, opportunity should he afforded

Congress to declare whether or not such new parks or

monuments should be subject to water power develop-

ment, leaving to Congress instead of to the Federal

Power Commission the right to say, or to what extent,

such new national parks or monuments, or additions to

existing parks or monwnents, should be opened to

water power development.”

presented to him on the fourth day of June, the day before

we adjourned. He referred the bill to the Secretaries of the

Interior, War and Agriculture. The Secretary of the Interior

had great doubts as to the policy of giving the commission

eontrol over the national parks and monuments in the matter

of water power development. Senator Jones, Chairman of the

Committee on Commerce and Senator Walsh of Montana,

eallod upon the Secretary and conferred with him regarding

the signing of the bill. The Secretary conferred with Secre-

tary Underwood and the Majority Leader ( Mr. Mondell) and

an understaiding was reached whereby the bill was to be

introduced at this session eliminating the parks and monv-

ments from the operation of the Federal Power Act, and this

bill carries out this understanding. 60 Cone. Rec. 4204 (1921).

See also, H. R. Rep. No. 1299, 66th Cong., 3d Sess. 3 (1921).

79. In 1921 Joha B. Payne, Secretary of the Interior wrote to

the House Committee on Interstate and Foreign Commerce agree-

ing to so limit the application of the Act:

I saw no objection to limiting the proposed amendment to the

power act... to existing parks and monuments. Several

weeks ago a representative of the power interests ealled on

me and stated that it would eliminate objection from those

interests if the words “as now constituted” would be inserted.

..., H.R. Rep. No. 1299, 66th Cong., 3d Sess. 3 (1921).

80. TIL.R. Rep. No. 1299, 66th Cong., 3d Sess. 2 (1921). In 1935

Congress redefined the jurisdiction of the Federal Power Commis-

sion to exclude all existing and future naiional parks and mont-

Sequoia National Park was expanded in 1926 to protect

the Kern River basin from future development for power

purposes.” Act of July 3, 1926, 44 Stat. 818. Since the 1921

amendment to the Federal Power Act applied: only to ezist-

ing national parks, its prohibition was incorporated into the

1926 act to “prohibit the development of hydro-electric

power in the... enlarged park.” Thus, all Sequoia National

Park was insulated from the threat of Federal Power Com-

mission licensing of dams and power plants within iis

boundaries.

ments. Act of Aug. 26, 1935, 49 Stat. 838, 16 U.S.C. § 796(2). In

the period between 1920 and 1935, however, Congress was obliged

to decide each time it added land to the national park system

whether the Federal Power Commission licensing authority should

extend to the new park area.

81. W. B. Greeley, Chief of the Forest Service testified :

This proposed addition embraces some 600,000 acres. The

striking topographic features of that area are three great

canyons, chiseled out of the Sierras. These great canyons,

Kern River and the South and Middle Forks of Kings River,

are bound to be the principal routes of travel. One of the

greatest attractions will be the canyons themselves, with their

remarkeble variety of topography.

You cannot admit power development in canyons of that

character, witn ertificial reservoirs and conduits, the erection

of transmission liaes, power dams, pipe lines, and all the rest

of it, without largely destroying its natural character. Hear-

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

7452 to Add Certain Lands To Sequoia National Park, 67th

Cong., 2d Sess. 12 (1921).

Because of pending power enplications, the arca surrounding the

Kings River, first proposed for inclusion in Sequoia National Park

was not preserved until 1940 when it became Kings Canyon Na-

tional Park. Act of March 4, 1940, 16 U.S.C. § 80. See H.R. Rep.

No. 583, 67th Cong., 2d Sess. 3 (1922) : “The city of Los Angeles

has on file with the Federal Power Commission applications for six

power sites within this proposed new area. The San Joaquin Light

and Power Corporation has applied for two sites.” See also Hear-

mgs Before the House Committee on Public Lands on H.R. 4095,

68th Cong., Ist Sess. 2, 19, 21, 39, 87 (1924).

82. H.R. Rep. No. 583, 67th Cong., 2d Sess. 2 (1922). See also

Hearings (1921), supra note 81, at 9, 10, 14, 15, 23, 24.

NSE ERE UPA Be

SPCR Sa AE PAE ete Ad BN PT

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Ce en GU Shad

Though the Federal Power Act superseded the Acts of

1901 and 1911 in part, it did not take away all of the

Secretary of the Interior’s power to license distribution

and transmission lines over public lands. In Pacific Power

and Light Company v. Federal Power Commusston, 184

F.2d 272, 274-75 (v.C. Cir. 1950), the court held that the

Federal Power Act restricted the Secretary’s authority only

over hydro-electric power projects. The court stated:

[T]he purpose of Congress appears to have been to

place in one agency authoritx over the development of

the hydro-electric resources owned or controlled by the

- National Government, and would encompass the auxili-

ary facilities which are parts of those projects. But

such a purpose would not necessarily encompass trans-

mission lines or other facilities which are not parts of

such projects. There would seem to be no necessity,

for example, under the compulsion of that purpose, to

take from the Secretary of the Interior authority to

determine the use,of public lands within his juris-

diction for a transmission line which is not a part of

a hvdro-electric project. Reservoirs, power houses and

transmission lines merely as such were not the con-

siderations which led Congress to pass the Act.

The concern of Congress was in the development

of water resources. ... [U]nless the nature, pur-

pose and function of the line is such as that it isa

part of a power project, it does not fall within the

statutory definitions which establish the authority of

the Commission, and is not to be forcibly enveloped in

the statutory language by the compulsion of a con-

gressional purpose inadequately expressed.

Both the Secretary of the Interior and the Secretary of

Agriculture have interpreted their authority under the 1901

and 1911 acts in this way. Both have promulgated regula-

tions for the issuance of power line permits not falling

within the reguiaiory authority of the Federal Power Cum-

mission.**

There is no basis for the Sierra Club’s contention that

Section 45¢ requires Congressional authorization of all dis-

tribution or “high voltage transmission lines” (B. 80) in

Sequoia National Park. If this restrictive interpretation

were correct, Congressional approval of all power lines in

all nationai parks and monuments as constituted in 1921

would be required under the 1921 Act, 16 U.S.C. § 797a. The

Ninth Circuit recognized the “unlikely intention to require

an act of Congress for each electrical line within the park”

(A. 232).

The Secretary’s administrative interpretation of Section

45¢ is reasonable and this Court should defer to it. “When

faced with the problem of statutory construction, this Court

$3. A regulation of the Secretary of Interior states:

Applications for hydroelectric power plant sites or rights-of-

way from main or primary hydroelectric power transmission

lines must be made to the Federal Power Commission, Wash-

ington, D.C. under the Act of June 10, 1920, as amended.

Rights-of-way for transmission lines which are not primary

lines must be secured under the Act of February 15, 1901, or

the Act of March 4, 1911. 45 C.F.R. § 2234.4-1(3).

The Seeretary of Agriculture has a similar regulation. 36 C.F.R.

§ 251.52 authorizes the Chief of the Forest Service to grant ease-

ments for certain types of transmission lines. Section 251.50 defines

these transmission lines as follows: .

Transmission lines means the poles, towers, wires, insulators

and all other structures, equipment, appliances and other

facilities erected or to be erected when :

(1) The transmitted energy is generated from other than

water power,

(2) The transmission line classifies as a non-primary line

under the provisions of the Federal Power Act... because

it does not transmit power from a water power plant or

appurtenant works to a point of junction with the distribution

system or with the inter-connected primary transmission

system. (Emphasis added.)

shows great deference to the interpretation given the

statute by the officers or agency charged with its adminis.

tration.” Udall v. Tallman, 380 U.S. 1, 15 (1965).

Application of the 1921 prohibition on F.P.C. licensing to

the land added to Sequoia National Park in 1926 was the sole

purpose of Section 45c. Congress did not intend to repeal the

authority of the Secretary of the Interior to grant rights-of-

way under the 1901 and 1911 Acts for distribution and trans-

mission lines other than hydro-electric projects and primary

transmission lines.* The legislative history, administrative

practice and judicial interpretation of Section 45c confim

this. The proposed Mineral King power line is neither a

hydro-electric project nor a primary transmission line.

Therefore, this Court should affirm the decision of the court

of appeals which found it “unlikely that the appellee could

prevail as to such a contention” (A. 231).

In addition to arguing that no power line may be built

across Sequoia Naticnal Park withovt specific Congres-

sional approval, the Sierra Club argues that ever such

electrical line must serve a park purpose.

Congress did not restrict the Secretary to granting term

permits only for lines serving park purposes. The Act of

1911, 16 U.S.C. § 5, expressly authorizes term rights-of-way

“within or through any national park” so that such lines

may serve areas outside parks. The legislative history of

84. “Congressional authorization of a power project pursuant to

Section 45e has been required only once. In 1963, in connection

with Federal Power Commission re-licensing of its Kaweah No.

3 Project, the Southern California Edison Company obtained

legislation specifically authorizing the Secretary of the Interior to

issue a permit for the continued operation, maintenance and use

of hydro-electric facilities within Sequoia National Park. 77 Stat.

70 (1963). That project includes water storage reservoirs at

Mineral King and a flume crossing Sequoia National Park.

that section confirms that Congress intended\to broaden

the authority of the Secretary of the Interior and the Secre-

tary of Agriculture to\permit power lines to be built on pub-

lie lands by giving the permittees more certain \tenure.™

The Sierra Club cones that the National Park Service

Act of 1916, 39 Stat. ‘535, 16 U.S.C. § 1, amended the

Secretary’s authority to grant term rights-of-way by

requiring that every Sich right-of-way serve park

purpose. That act allows\ the Secretary to “promote and

regulate the use” of national parks by “such means and

measures as conform to the fundamental purpose of\said

parks.” 16 U.S.C. $1. Thest purposes are recreation and

preservation. There is no \indication that the proposed

power line will not conform. to park purposes. Contrary

to the Sierra Club’s contention, Section 1 does not require

that every line serve a park purpose.

The Sierra Club also argues that the 1916 act limits the

Secretary’s authority to grant revocable rights-of-way for

power lines in Sequoia National Park under 16 U.S.C. § 79.

However, 16 U.S.C. § 4 expressly states that Section 1 does

not “affect or modify” Section 79. \

- — \

85. “The committee finds that under the existing law and regu-

lations the only right of way that can be obtained for electrical lines

for the transmission of power across the public domain and national

forests is a temporary revocable permit issued by the Secretaries of

the Interior and Agriculture. That under\the present conaitions, in

many cases, it is impossible for companies interested in the develop-

ment of power outside of the limits of national forests to success-

fully raise the necessary money for the construction work where

the tenure of the right of way across public lands and national

forests. is subject at any time to be revoked by an administrative

officer of the Government. The committee is unanimously of the

opinion that the legislation called for in t e bill should receive

Immediate and favorable consideration.” SEN. Rep. No. 967, 61st

Cong., 3d Sess. 1 (1911).

2. ~The Secretary Of The Interior Has Authority To Permit The State Of

California To Improve The Mineral King Access Road.

The Sierra Club erroneously contends that the Secretary

of the Interior has threatened to exceed his statutory au-

thority by permitting the State of California to construct a

road across Sequoia National Park to serve the public

travelling to recreation lands in Sequoia National Forest.

The Secretary of the Interior has express authority over

national park roads under the Act of April 9, 1924, 43

Stat. 90, 16 U.S.C. § 8:

The Secretary of the Interior, in his administration

of the National Park Service, is authorized to con-

struct, reconstruct, and improve roads and trails, in- —

clusive of necessary bridges, in the national parks

and monuments under the jurisdiction of the Depart-

ment of the Interior.

In addition to this express power, the authority of the

Secretary of the Interior to grant road permits is inherent

in the delegation by Congress to the Secretary of the power

to “regulate the use of the federal areas known as national

parks.” 16 U.S.C. §1. For decades the Secretary of the

Interior has exercised this land management power by per-

mitting construction of roads traversing national parks.”

These two sections give the Secretary broad power over

road building in national parks. Nevertheless, the Sierra

lub argues that to permit the State of California to im-

86. Examples of such roadbuilding include the Blue Ridge

Parkway correcting Shenandoah National Park and the Great

Smoxy Mountain National Park, the Zion-Mount Carmel road and

tunnel, th: Wawona tunnel and road in Yosemite, the Cape Royal

road in the Grand Canyon, the Paradise Valley and Yakima Park

highway in Mount Rainier, the Sylvan Pass road in Yellowstone,

and the Going-to-the-Sun road in Glacier. See generally, Ise, Our

NATIONAL Park Po.uicy 326-28 (1961).

prove the existing county road crossing the west side of

Sequoia National Park would bg illegal because under

Section 8 the Secretary alone is authorized to construct such

roads. Such a restrictive interpretation is unwarranted.

This case does not involve delegation by the Secretary of

the Interior of any quasi-legislative or Judicial function.®?

Road building in national parks is within the authority of

the Secretary of the Interior, and the means by which this

is accomplished is also for him to determine. It is within the

Secretary’s power to authorize the state to build a road

which he himself could have constructed.

Section 8, designed to broaden the Secretary’s power to

build and improve roads in national parks; should not be

construed to prohibit federal cooperation with state or local

authorities.** The weakness of the Sierra Club’s argument is

especially apparent in this case. Since 1885, Tulare County

has owned and maintained the Mineral King road. The

87. While an administrative body cannot delegate these types

ofunctions, it can delegate the performance of administrative and

ministerial duties. See Krug v. Lincoln Nat'l Life Ins. Co., 245

F.2d 848 (5th Cir. 1957).

88. The Secretary himself has tried to promote federal-state

cooperation to further recreational interests. He has adopted a

regulation in connection with his management of public lands gen-

erally. The objective of the regulation is “1'o assure that persons

wishing to use lands have access to them and that outdoor recrea-

tion use does not damage the resources,” 43 C.F.R. § 6250.0-2. The

Department’s policy is stated in Section 6250.0-6 : “In cooperation

with State and local governments and private individuals and asso-

tations, the Bureau will endeavor to provide access for public use

and enjoyment of lands with outdoor recreation values.”

89. The Mincral King Road was conveyed to Tulare County

October 7, 1885. The deed in Volume 12 of Deeds in the office of

the Tulare County Recorder reads as follows:

Know all men by these presents, that I, Robert McKee of

the County of Tulare, State of California, for and in con-

sideration of $1,573.30, the receipt whereof is hereby acknowl-

portion which is within Sequoia National Park is main-

tained by the county with the approval of the Department

of the Interior. The road has been improved and its “lign-

ment changed from time to time since Sequoia National Park

was created in 1890. The Sierra Club argues that the Seere-

tary has incorrectly interpreted his authority and has un-

lawfully permitted county maintenance of the Mineral King

road for the last eighty-one years. This is an unreasonable

interpretation of Section 8.

The Sierra Club further argues that every park road

must serve a park purpose. This too is untenable. The only

statutory limitation on the broad Congressional delegation

of managerial power over road building to the Secretary of

the Interior is the general admonition of 16 U.S.C. § 1 which

requires that the Park Service:

[P]romote and regulate tue use of [National Parks]

. by such means and measures as conform to the

fundamental purpose of saic parks . . . which purpose

is to conserve the scenery aid the natural and historic

objects and the wildlife therein and to provide for the

enjoyment of the same in such manner and by such

means as will leave them unimpaired for the enjoy-

ment of future generations.

The Secretary of the Interior in authorizing the Mineral

King road has exercised the power to regulate the use of

a federal area — the national park land on which the road

will be constructed. Under 16 U.S.C. §1 the road must

edged, do grant to the County of Tulare in the State of Cali-

fornia, bounded and descriked as follows: All that certain

Toll Road known as the Mineral King Wagon and Toll Road,

together with the Franchise and all and singular the

appurtenances thereto belonging or in anywise appertaining.

It has never been conveyed to tne United States.

conform to the fundamental purpose of the park. It does

rot, however, require that every measure serve a park

purpose. The only limitation on the Secretary’s broad au-

thority over roads in national parks is that roads cannot

be built either without regard to conserving national and

historic objects and wildlife within the park, or in a way

which would impair the enjoyment of the park for future

generations. The Secretary acted within the secpe of his

authority when he approved the construction of the road.

The Ninth Circuit’s unanimous decision on this issue, “We

cannot find in the appellee’s contentions concerning this pro-

posed road any degree of substantiality” (A. 231), should be

affirmed.

3. The Secretary Of The Interior Did Not Abuse His Discretion In Approving

The Mineral King Road.

A determination that the Secretary has acted within the

scope of his statutory delegated authority does net end

this Court’s review of his decision. The Sierra Club has

alleged that the Secretary of the Interior’s decision to ap-

prove road construction across Sequoia National Park was

also an abuse of discretion.

Under Overton Park the Secretary’s decision must stand

uless he has failed to consider all relevant factors or

has made a cleyr error of Judgment. The Sierra Club has

not shown a substantial likelihood that the Secretary of the

Interior did either.

The Secretary of the Interior's Approval of the Mineral King Road Was Based

Upon a Consideration cf All Relevant Factors.

An agency’s decision must be based upon a consideration

of all relevant factors. Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402 (1971). These factors are contained in

the statutes which give administrative agencies their an-

thority to act:

Statutes bestowing discretion on a federal official are

not passed in vacuum. They may contemplate a broad

range of permissible decisions, : the outer pound-

aries of the decision-making process are circumscribed

by the statutory framework administered by the

agency. ... Decisions may not be based upon factors

irrelevant to the purposes of the statutory scheme,

nor may factors relevant to the express congressional

purpose be totaliy ignored. Sierra Club v..Hardin, 32%

F. Supp. 99, 112-13 (D. Alaska 1971)

Thus, in Scenic Hudson Preservation Conference vt.

F.P.C., 354 F.2d 608 (2d Cir. 1965), the relevant statute,

the Federal Power Act, required the commission to adopt

the project “best adapted to a comprehensive plan for in-

proving or developing a waterway.”” In Overton Park the

Secretary of Transportation under the Transportation Act

could not buiid a highway through a park unless there was

“no feasible or prudent alt2rnative.””

The relevant statute in the case at bar is 16 U.S.C. §1,

requiring the Secretary of the Interior in regulating the use

of federal areas to employ only those means and measures

which conform to the purpose of such parks. If the Secre-

tary had ignored this directive when he approved the Min-

eral King road, he would have abused his statutory dis-

cretion, but as the Nintk Circuit noted, “The record shows a

gieat deal of concern in its planning for preservation of

aesthetic and ecological values” (A. 230).

The Secretary of the Interior considered the Mineral

King road in detail when he surveyed Sequoia National

90. 354 ¥.2d at 614 (2d Cir. 1965).

91. 401 U.S. 402, 405 (1971).

Park roadless areas pursuant to the Wilderness Act of 1964,

Act of Sept. 3, 1964, 78 Stat. 890, 16 U.S.C. §§ 1131-36. At

public hearings in 1966 on the Park Service wilderness pro-

posal for the park, the Mineral King road was hotly debated

for two days. The Sierra Club urged wilderness boundaries

which would have blocked any improvement of Mineral

King access.” The club, however, has failed to mention the

close relationship of the Secretary’s decision to permit im-

provement of the Mineral King road and his recommenda-

tion that nearly three quarters of a million acres of Sequoia

and Kings Canyon National Parks be set aside as wilder-

ness.

The Secretary of the Interior considered at least three

alternate routes (A. 61, 140) before consenting to the state-

approved route. One of the alternates would have involved

massive tunneling across Sequoia National Park. Though it

involved construction of a tunnel, there was no evidence

that its ecological impact on the park would have been any

less than that of the route chosen. The second would have

traversed the surface of the park, but the Forest Service

found it was inferior to the proposed route in ail respects.

The final alternative involved a long tunnel passing through

national forest rather than national park land. It was routed

through such a remote and inaccessible region of the Sierra

that its estimated cost of construction was $78 million (A.

92. H.R. Doc. No. 92-102, 92d Cong., 1st Sess. 30 (1971).

93. Id. at iii.

94. “In our judgment, the Clarkeson proposed location and

design would result in a more costly highway, a less esthetic high-

Way, a more positive barrier to wildlife movement, and would

Violate many of the concepts we have attempted to use in making

this highway an integral part of the terrain it traverses.” Proposed

Road to Mineral King, Memorandum to the Chief, U.S. Forest

Service from the Director of Engineering, Oct. 18, 1968.

66)—three times the cost of the proposed Mineral King

road. The Secretary of the Interior and his departinent con-

sidered these alternatives carefully, and concluded, “We

have reviewed all material available to us on the proposed

location of the Mineral King Road. On the basis of this

review we now agree that the division of highways route

should be selected” (A. 1388).

Finally, at least four different comprehensive studies

(A. 57, 83, 140), which considered the impac: of the road

improvement on the park and the forest, fish and wildlife,

the giant Sequoias and streams, possible alternative routes

and the opposition to the road, were availiable to the See-

retary before he acted.*°

At the time the Secretary made his decision about the pro-

posed road he had all the relevant factors before him and

considered them carefuily. Only when he was sure that park

values could be properly protected, that no alternative route

was feasible, and that future expansion of the road was not

contemplated, did he approve (A. 136-39).

There Is No Clear Error Of Judgment.

Under Overton Park the decision of an adiinistrator

appropriate statutory procedures must stand unless it is

arbitrary or clearly erronecus. Such a decision is given

a strong presumption of regularity and a court will not

substitute its judgment for that of the administrator.

The approval of the Mineral King Road by the Secretary

of the Interior was neither arbitrary nor erroneous. The

1916 National Park Service Act sets forth two park pur-

poses. One is the preservation of the scenery, wildlife, and

95. See note 5 supra.

natural and historic objects in the park. The other is to pro-

vide for recreation, for “the enjoyment of the parks” in a

way which will leave them unimpaired for their enjoyment

by future generations. This does not forbid park improve-

ments which may alter park areas. For example, 16 U.S.C.

§ 8 specifically authorizes road construction and, “obviously

any road construction to present day standards cannot be

built through this area withcut affecting the ecology of the

area” (A. 142),

Often the two purposes of recreation and preservation

conflict. The Mineral King road is an example of how

judicious management of public lands can reconcile these

two values—to preserve park areas while providing addi-

tional public recreational opportunities, The Sierra Club’s

single-purpose management philosophy, rejected by the

Park Service and Forest Service, would inhibit the coopera-

tive management of the Sequoia National Park-Sequoia

National Forest. region and effectively seal off the Mineral

King area from public recreational use. Mineral King is

bounded on the west, north and east by Sequoia National

Park. If Mineral King were a part of the park itself, the

Secretary of the Interior would have the authority under

Section 8 to construct this road. It would be unreasonable

to block access to this region because it is in a national

forest rather than a national park. In fact, there is a

Congressional policy favoring road building to service

national forests. 16 U.S.C. Section 532 states:

Congress hereby finds and declares that the construc-

tion and maintenance of an adequate system of roads

and trails within and near the national forest and other

lands administered by the Forest Service is essential if

increasing demands for timber, recreation and other

uses of such land are to be met. (Emphasis added.)

The Secretary of the Interior has urged cooperation be-

tween land management agencies to achieve both wilderness

and recreation goals:

Parks do not exist in a vacuuni. It is important in plan-

ning for a park that the teams take into account the

total environment in which the park exists. Of partic.

ular significance ar* the plars for and the availability

of other park and recreation acilities within the region

at the Federal, State, and local levels, as well as those

of the private sector for the accommodation of visi-

tors, access to the national parks, the roads within

them, wildlife habitat, ete. Accordingly, the master

plan team first analyzes the entire region in which the

park is located and the many factors that influence its

management.

Moreover, where national parks and national forests

adjoin, such as Mount Rainier, Yellowstone and Grand

Teton National Parks, the National Park Service and

the U.S. Forest Service formalized, in 1963, a joint

effort to analyze the resources and visitor needs, and

develop cooperative plans for the accommodation of

these requirements which will best insure the achieve-

ment of both of our missions. This program formalizes

and broadens the informal efforts made for many years

by many park superintendents and forest supervisors

to coordinate management programs, including visitor

facilities and services. Such cooperative programs are

authorized by Section 2 of the Act of August 25, 1916,

establishing the National Park Service.”

On the basis of such cooperative planning, the Secretary

has now made his recommendations to the President for

Congressional inclusion of vast areas of Sequoia and Kings

Canyon National Parks in wilderness. The Secretary’s

report to the President notes the need for public recreation

areas in the Sequoia-Kings Canyon Region:

96. H.R. Doc. No. 92-102, 92d Cong., Ist Sess. 4 (1971).

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This map is Exhibit A to H.R. Doc. No. 92-102, 92d Cong., 1st Sess. (1971). It embodies the President's final proposal to Congress for designation of portions of Sequoia and King

dent’s proposal provides a non-wilderness corridor for public access to recreational facilities at Mineral King, and a 12,500 acre non-wilderness area adjacent to Mineral King for in

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EXHIBIT A J

WILDERNESS PLAN / §

Pad -)

SEQUOIA AND KINGS CANYON |

NATIONAL PARKS \ S

° 1 2 4 6 ) INYO NATIONAL FOREST

A SCALS tones * L,

L Baa Y

LEGEND ». .

PARK BOUNDARY ~~~ JOHN MUIR JOHN |

EXISTING ROADS —~ Ss

. WILDERNESS

PRIVATE LANDS — p /

SHELTERS, AUTO. SNOW MEASURING DEVICES, ere.)

WILDERNESS Se se

‘

on \

WILDERNESS |

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UNIT WILDERNESS ~— NATIONAL FOREST

1 684,290 ’

2 37,680 L

TOTAL 721,970

GRANT GROVE

52 MILES

VISALIA. 47 MILES

BUCK ROCK LOOKOUT

CRYSTAL CAVE

ASH MOUNTAI

HEADQUARTERS

Ist Sess. (1971). It embodies the President’s final proposal to Congress for designation of portions of Sequoia and Kings Canyon National Parks as wilderness. The Presi-

$02, 92d Conz.,

500 acre non-wilderness area adjacent to Mineral King for intensive public enjoyment of Sequoia National Park.

Mineral King, and a 12,

@rridor for public access to recreational facilities at

PE YPD IY LAN RORE RS RE NER ELLE OT

Pe Bee ee at ey Oe

Bs as

The greatest use impact on these public park and forest

lands comes from the southern California region, par-

ticularly the Los Angeles/Long Bese metropolitan

area, which alone contained about 35% of California’s

19,950,000 population in 1970."

To meet the need for public recreation the Secretary has

recommended exclusion of the Mineral King road corridor

and 12,500 acres adjoining Mineral King from the proposed

wilderness area. The report notes that the Mineral King

facilities, though on Forest Service land, will enable more

people to enjoy Sequoia National Park:

The proposed Mineral King development on national

forest lands would provide lifts and trams, as well

as improved trail access to the hydrographic divide

around the Mineral King Valley which marks the

boundary of Sequoia National Park. The lifts and

tram transportation system will place thousands of

skiers and hikers on park lands where there are supe1b

opportunities for ski touring in winter and hiking in

summer.*®

The Secretary of the Interior’s decision to approve the

Mineral King road did not deviate from Section 1 requiring

him to consider both recreation and preservation in ad-

ministering the national parks. In recommending commit-

ment of vast areas of Sequoia and Kings Canyon National

Parks to wilderness he has promoted preservation. In ap-

proving the Mineral King road he has promoted recreation.

This does not make his decision arbitrary; it merely makes

it inconsistent with the Sierra Club’s particular bias. The

court in Sterre Club v. Hardin, 325 F. Supp. 99, 113 (D.

97. Id. at 10.

98. Id.at13. +

SETAE VCS INIT ET CORSET ERT ARE RS OOO SRT RN EIIIT

Alaska 1971), suxnmarized the type of review to be given

under the Overton Park standard:

The scope of review is limited, however, to the ques.

tion of whether or not the Secretary has complied with

the mandatery procedures required by the relevant

statutes. Where the final decision was dependent on

the relative weight to be given the prescribed decisional

inputs and no standard was suggested by the statute,

the court treated the decision as ‘committed to agency

discretion’ within the meaning of Section 701 of the

Administrative Procedure Act and refused to substi-

tute its judgment for that of the administraior absent

a clear showing that his discretion had been abused.

Congress has directed the Secretaries of the Interior and

Agriculture to increase public use of parks and to enhance

recreational opportunities on public lands. The Mineral

King road fulfills that Congressional purpose. Since the

Secretary of the Interior’s decision reflected consideration

of the rele- ant statutory values and was not clearly arbi-

trary, there was no strong likelihood that he abused his

discretion.

4. The Secretary Of The Interior Was Not Required To Hold Hearings On The

Road.

There is no merit to the Sierra Club’s final contention that

the Secretary of the Interior was required to hold public

hearings regarding the location and design of the Mineral

King access road. No statute or departmental regulation

requires such hearings.

99. See, e.g., the Multiple-Use Sustained-Yield Act of 1960, 16

U.S.C. § 528, which lists outdoor recreation as a use of the national

forests. See also the Outdoor Recreation Programs Act, 16 USC.

§§ 4601-13, 77 Stat. 49 (1964); Outdoor Recreation Resources

Review Act, 72 Stat. 238 (1958).

Public administrative hearings in connection with land

management decisions are required neither by the land

management statutes nor by the Administrative Procedure

Act.° The Sierra Club itself has acknowledged this (A. 41).

However, the Sierra Club contends that the Department

of the Interior was required by its published procedures to

hold a public hearing on the location and design of the ac-

cess road. The authority relied upon is a last minute policy

statement of Secretary Udall, “Road Building in National

Parks,” adopted without hearings only two days before he

left office in January, 1969.17 It was immediately and validly

revoked by Secretary Hickel.?

The Sierra Club argues that this revocation was ineffec-

tive because the Secretary did not comply with Section 4 of

the Administrative Procedure Act, 5 U.S.C. § 553. That act

did not apply to the Udall policy statement. Section

d03(a) (2) exempts matters “relating to agency management

of personnel or to public property, loans, grants, benefits, or

contracts,” (emphasis added) from zulemaking procedures.

The Department of the Interior has often invoked this

“public property” exception and courts have approved the

exemption.?®

100. In 1960 when Congress reexamined the basic land manage-

ment policies of the Forest Service and enacted the Multiple-Use

Sustained-Yield Act, 16 U.S.C. § 528, et seq., it chose not to impose

a public hearing requirement in connection with planned recrea-

tional uses of national forests. In those few instances in which

Congress has desired administrative hearings in connection with

public land management decisions, it has specifically so provided in

the relevant statute. H.g., Classification and Multiple Use Act, 43

US.C. § 1411(a); Wilderness Act, 16 U.S.C. § 1132(d) (B).

101. 34 Fed. Reg. 1405-06 (1969).

102. 34 Fed. Reg. 6985 (1969).

_ 103. For example, the Department held that special rules issued

In connection with the Taylor Grazing Act, 43 U.S.C. §§ 315-315r,

The revocation of the Udall policy statement concerned

national parks; these are clearly public property. Therefore,

the exception applies and Secretary Hickel’s revocation was

valid.

Even if the “public property” exception were not appli-

cable, Secretary Udall did not comply with 5 U.S.C. § 553 in

adoption of the statement on “Road Building in National

Parks.” He did not give notice of the proposed rulemaking,

nor include a statement of the time, place or nature of

public rulemaking proceedings, nor did he give interested

persons any opportunity to participate in the proposed

rulemaking. He signed the rule on the eve of his departure

from office and it appeared in the Federal Register there-

after. Under the Sierra Club’s own reasoning this policy

statement was never validly adopted.

The Sierra Club cannot properly argue two conflicting

factual hypotheses. It would have this Court apply Section

553 to the revocation, but not the adoption of Secretary

Udall’s poliey statement. If Section 553 applies to Depart-

ment of the Interior rulemaking, it applies both to adoption

and to revocation; otherwise it applies to neither. In either

case no hearing was required.

relating to grazing privileges on public lands, fell within this

exception. When this determination was challenged, the court in

MeNeil v. Seaton, 281 F.2d 931, 936 (D.C. Cir. 1960), held:

[T]he notice requirements of section 4 of the Administra-

tive Procedure Act contain an express exception when there

is involved rule making relating ‘to public property, loans,

grants, benefits, or contracts.’ That we are here dealing with

matter relating to public property is obvious. Although the

Taylor Act in certain other respects provides for public notice

and hearing, there is no such requirement as to regulations or

rulemaking concerning the issuance of grazing permits or a

special rule touching problems with respect thereto.

This “public property” exception was again approved by the

court in a contest over leasing rights on a moose refuge, Duesing

v. Udall, 350 F.2d 748, 752 n.4 (D.C. Cir. 1965).

75 ee

The Ninth Cireu't correctly dismissed the Sierra Club’s

claim that a hearing was required as unmeritorious, stating:

“The matter of public hearings cannot be considered a sub-

stantial factor in this proceeding” (A. 233).

lll. THERE WAS NO IMMINENT THREAT GF IRREPARABLE

HARM TO THE SIERRA CLUB

The evidence available to tke trial court on the motion

for a preliminary injunction supports the court of appeals’

finding that an injunction was not needed to prevent immi-

nent and irreparable harm to the Sierra Club. The trial court

decided not to require the Sierra Club to defer its request for

injunctive relief until the Division of Highways had com-

pleted preliminary planning for the access road, in order to

relieve it of the burden of “ ‘watchful waiting’ upon the State

of California” (A. 198).

Apparently the trial court was impressed by the Sierra

Club’s vivid rhetoric. Its arguments have been rep

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