# Amicus Curiae Brief — Sierra Club v. Morton > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0384%3A14 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1972 - **Citation:** 405 U.S. 727 ## Text 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 ............ B. 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 13 30 33 3 3 ; % 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 62 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). 2 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. 3 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. 5 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). 6 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 7 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 8 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 10 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). 11 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 12 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 13 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 14 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. \ \ \ 15 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). 16 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). 17 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 18 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: 19 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. 20 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 21 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 22 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. 23 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. 24 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.” 25 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). 27 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. ) an 28 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. ~“ 29 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). 30 “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 31 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). =n 32 206 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. 33 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. 34 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 35 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 86 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). 37 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. i TE EIT «fi 38 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 ai 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.) we “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- a => 40 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). 41 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 42 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 43 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). 44 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. 45 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. 46 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.) 47 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.) _ 49 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. \ \ \ \ \ | \ 5 & f Ss i : -& : & : . x : E & f & ¢ iS 3 f 50 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). 51 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 TAIN HOI {A NPN TERE ISG BIO EGA ES Py ea ae