United States Supreme Court ruling in SIERRA CLUB v. MORTON (1972) No. 70-34, argued November 17, 1971 and decided April 19, 1972, https://caselaw.findlaw.com/us-supreme-court/405/727.html
Petitioner, a membership corporation with “a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country,” brought this suit for a declaratory judgment and an injunction to restrain federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioner relies on 10 of the Administrative Procedure Act, which accords judicial review to a “person suffering legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the meaning of a relevant statute.” On the theory that this was a “public” action involving questions as to the use of natural resources, petitioner did not allege that the challenged development would affect the club or its members in their activities or that they used Mineral King, but maintained that the project would adversely change the area’s aesthetics and ecology. The District Court granted a preliminary injunction. The Court of Appeals reversed, holding that the club lacked standing, and had not shown irreparable injury. Held: A person has standing to seek judicial review under the Administrative Procedure Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioner asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Pp. 731-741.
433 F.2d 24, affirmed.
STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE and MARSHALL, JJ., joined. DOUGLAS, J., post, p. 741, BRENNAN, J., post, p. 755, and BLACKMUN, J., post, p. 755, filed dissenting opinions. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.
Leland R. Selna, Jr., argued the cause for petitioner. With him on the briefs was Matthew P. Mitchell. [405 U.S. 727, 728]
Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Kashiwa, Deputy Assistant Attorney General Kiechel, William Terry Bray, Edmund B. Clark, and Jacques B. Gelin.
Briefs of amici curiae urging reversal were filed by Anthony A. Lapham and Edward Lee Rogers for the Environmental Defense Fund; by George J. Alexander and Marcel B. Poche for the National Environmental Law Society; and by Bruce J. Terris and James W. Moorman for the Wilderness Society et al.
Briefs of amici curiae urging affirmance were filed by E. Lewis Reid and Calvin E. Baldwin for the County of Tulare; by Robert C. Keck for the American National Cattlemen’s Assn. et al.; and by Donald R. Allen for the Far West Ski Assn. et al.
MR. JUSTICE STEWART delivered the opinion of the Court.
The Mineral King Valley is an area of great natural beauty nestled in the Sierra Nevada Mountains in Tulare County, California, adjacent to Sequoia National Park. It has been part of the Sequoia National Forest since 1926, and is designated as a national game refuge by special Act of Congress. 1 …
Its relative inaccessibility and lack of development have limited the number of visitors each year, and at the same time have preserved the valley’s quality as a quasiwilderness area largely uncluttered by the products of civilization. [405 U.S. 727, 729]
The United States Forest Service, which is entrusted with the maintenance and administration of national forests, began in the late 1940’s to give consideration to Mineral King as a potential site for recreational development…
MR. JUSTICE DOUGLAS, dissenting.
I share the views of my Brother BLACKMUN and would reverse the judgment below.
The critical question of “standing” 1 would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern [405 U.S. 727, 742] for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, Should Trees Have Standing? – Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972). This suit would therefore be more properly labeled as Mineral King v. Morton.
Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. 2 The corporation sole – a creature of ecclesiastical law – is an acceptable adversary and large fortunes ride on its cases. 3 The ordinary corporation is a “person” for purposes of the adjudicatory processes, [405 U.S. 727, 743] whether it represents proprietary, spiritual, aesthetic, or charitable causes. 4
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes – fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction.
I do not know Mineral King. I have never seen it nor traveled it, though I have seen articles describing its proposed “development” 5 notably Hano, Protectionists vs. recreationists – The Battle of Mineral King, [405 U.S. 727, 744] N. Y. Times Mag., Aug. 17, 1969, p. 25; and Browning, Mickey Mouse in the Mountains, Harper’s, March 1972, p. 65. The Sierra Club in its complaint alleges that “[o]ne of the principal purposes of the Sierra Club is to protect and conserve the national resources of the Sierra Nevada Mountains.” The District Court held that this uncontested allegation made the Sierra Club “sufficiently aggrieved” to have “standing” to sue on behalf of Mineral King.
Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp [405 U.S. 727, 745] in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.
The Solicitor General, whose views on this subject are in the Appendix to this opinion, takes a wholly different approach. He considers the problem in terms of “government by the Judiciary.” With all respect, the problem is to make certain that the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed. It is, of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the “public interest.” Yet “public interest” has so many differing shades of meaning as to be quite meaningless on the environmental front. Congress accordingly has adopted ecological standards in the National Environmental Policy Act of 1969, Pub. L. 91-190, 83 Stat. 852, 42 U.S.C. 4321 et seq., and guidelines for agency action have been provided by the Council on Environmental Quality of which Russell E. Train is Chairman. See 36 Fed. Reg. 7724.
Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress can stop action which is undesirable is true in theory; yet even Congress is too remote to give meaningful direction and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency [405 U.S. 727, 746] which in time develops between the regulator and the regulated. 6 As early as 1894, Attorney General Olney predicted that regulatory agencies might become “industry-minded”, [405 U.S. 727, 747] as illustrated by his forecast concerning the Interstate Commerce Commission:
Years later a court of appeals observed, “the recurring question which has plagued public regulation of industry [is] whether the regulatory agency is unduly oriented toward the interests of the industry it is designed to regulate, rather than the public interest it is designed to protect.” Moss v. CAB, 139 U.S. App. D.C. 150, 152, 430 F.2d 891, 893. See also Office of Communication of the United Church of Christ v. FCC, 123 U.S. App. D.C. 328, 337-338, 359 F.2d 994, 1003-1004; Udall v. FPC, 387 U.S. 428 ; Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 146 U.S. App. D.C. 33, 449 F.2d 1109; Environmental Defense Fund, Inc. v. Ruckelshaus, 142 U.S. App. D.C. 74, 439 F.2d 584; Environmental Defense Fund, Inc. v. HEW, 138 U.S. App. D.C. 381, 428 F.2d 1083; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 620. But see Jaffe, The Federal Regulatory Agencies In Perspective: Administrative Limitations In A Political Setting, 11 B. C. Ind. & Com. L. Rev. 565 (1970) (labels “industry-mindedness” as “devil” theory). [405 U.S. 727, 748]
The Forest Service – one of the federal agencies behind the scheme to despoil Mineral King – has been notorious for its alignment with lumber companies, although its mandate from Congress directs it to consider the various aspects of multiple use in its supervision of the national forests. 7 [405 U.S. 727, 749]
The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal [405 U.S. 727, 750] agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard. 8 [405 U.S. 727, 751]
Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the aesthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?
Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the [405 U.S. 727, 752] Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend these waters or areas may be treated differently. That is why these environmental issues should be tendered by the inanimate object itself. Then there will be assurances that all of the forms of life 9 which it represents will stand before the court – the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.
Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand Country Almanac 204 (1949), “The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land.”
That, as I see it, is the issue of “standing” in the present case and controversy. [405 U.S. 727, 753]
Extract From Oral Argument of the Solicitor General *
[ Footnote 1 ] See generally Data Processing Service v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970); Flast v. Cohen, 392 U.S. 83 (1968). See also MR. JUSTICE BRENNAN’S separate opinion in Barlow v. Collins, supra, at 167. The issue of statutory standing aside, no doubt exists that “injury in fact” to “aesthetic” and “conservational” interests is here sufficiently threatened to satisfy the case-or-controversy clause. Data Processing Service v. Camp, supra, at 154.
[ Footnote 2 ] In rem actions brought to adjudicate libelants’ interests in vessels are well known in admiralty. G. Gilmore & C. Black, The Law of Admiralty 31 (1957). But admiralty also permits a salvage action to be brought in the name of the rescuing vessel. The Camanche, 8 Wall. 448, 476 (1869). And, in collision litigation, the first-libeled ship may counterclaim in its own name. The Gylfe v. The Trujillo, 209 F.2d 386 (CA2 1954). Our case law has personified vessels:
[ Footnote 3 ] At common law, an officeholder, such as a priest or the king, and his successors constituted a corporation sole, a legal entity distinct from the personality which managed it. Rights and duties were deemed to adhere to this device rather than to the office-holder in order to provide continuity after the latter retired. The notion is occasionally revived by American courts. E. g., Reid v. Barry, 93 Fla. 849, 112 So. 846 (1927), discussed in Recent Cases, 12 Minn. L. Rev. 295 (1928), and in Note, 26 Mich. L. Rev. 545 (1928); see generally 1 W. Fletcher, Cyclopedia of the Law of Private Corporations 50-53 (1963); 1 P. Potter, Law of Corporations 27 (1881).
[ Footnote 4 ] Early jurists considered the conventional corporation to be a highly artificial entity. Lord Coke opined that a corporation’s creation “rests only in intendment and consideration of the law.” Case of Sutton’s Hospital. 77 Eng. Rep. 937, 973 (K. B. 1612). Mr. Chief Justice Marshall added that the device is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat, 518, 636 (1819). Today, suits in the names of corporations are taken for granted.
[ Footnote 5 ] Although in the past Mineral King Valley has annually supplied about 70,000 visitor-days of simpler and more rustic forms of recreation – hiking, camping, and skiing (without lifts) – the Forest Service in 1949 and again in 1965 invited developers to submit proposals to “improve” the Valley for resort use. Walt Disney Productions won the competition and transformed the Service’s idea into a mammoth project 10 times its originally proposed dimensions. For example, [405 U.S. 727, 744] while the Forest Service prospectus called for an investment of at least $3 million and a sleeping capacity of at least 100, Disney will spend $35.3 million and will bed down 3,300 persons by 1978. Disney also plans a nine-level parking structure with two supplemental lots for automobiles, 10 restaurants and 20 ski lifts. The Service’s annual license revenue is hitched to Disney’s profits. Under Disney’s projections, the Valley will be forced to accommodate a tourist population twice as dense as that in Yosemite Valley on a busy day. And, although Disney has bought up much of the private land near the project, another commercial firm plans to transform an adjoining 160-acre parcel into a “piggyback” resort complex, further adding to the volume of human activity the Valley must endure. See generally Note, Mineral King Valley: Who Shall Watch the Watchmen?, 25 Rutgers L. Rev. 103, 107 (1970); Thar’s Gold in Those Hills, 206 The Nation 260 (1968). For a general critique of mass recreation enclaves in national forests see Christian Science Monitor, Nov. 22, 1965, p. 5, col. 1 (Western ed.). Michael Frome cautions that the national forests are “fragile” and “deteriorate rapidly with excessive recreation use” because “[t]he trampling effect alone eliminates vegetative growth, creating erosion and water runoff problems. The concentration of people, particularly in horse parties, on excessively steep slopes that follow old Indian or cattle routes, has torn up the landscape of the High Sierras in California and sent tons of wilderness soil washing downstream each year.” M. Frome, The Forest Service 69 (1971).
[ Footnote 6 ] The federal budget annually includes about $75 million for underwriting about 1,500 advisory committees attached to various regulatory agencies. These groups are almost exclusively composed of industry representatives appointed by the President or by Cabinet members. Although public members may be on these committees, they are rarely asked to serve. Senator Lee Metcalf warns: “Industry advisory committees exist inside most important federal agencies, and even have offices in some. Legally, their function is purely as kibitzer, but in practice many have become internal lobbies – printing industry handouts in the Government Printing Office with taxpayers’ money, and even influencing policies. Industry committees perform the dual function of stopping government from finding out about corporations while at the same time helping corporations get inside information about what government is doing. Sometimes, the same company that sits on an advisory council that obstructs or turns down a government questionnaire is precisely the company which is withholding information the government needs in order to enforce a law.” Metcalf, The Vested Oracles: How Industry Regulates Government, 3 The Washington Monthly, July 1971, p. 45. For proceedings conducted by Senator Metcalf exposing these relationships, see Hearings on S. 3067 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 91st Cong., 2d Sess. (1970); Hearings on S. 1637, S. 1964, and S. 2064 before the Subcommittee on Intergovernmental Relations of the Senate Committee on Government Operations, 92d Cong., 1st Sess. (1971).
The web spun about administrative agencies by industry representatives does not depend, of course, solely upon advisory committees for effectiveness. See Elman, Administrative Reform of the Federal Trade Commission, 59 Geo. L. J. 777, 788 (1971); Johnson, A New Fidelity to the Regulatory Ideal, 59 Geo. L. J. 869, 874, 906 (1971); R. Berkman & K. Viscusi, Damming The West, The Ralph Nader Study Group Report on The Bureau of Reclamation 155 (1971); R. Fellmeth, The Interstate Commerce Omission, The Ralph Nader Study Group Report on the Interstate Commerce Commission and Transportation 15-39 and passim (1970); J. Turner, The Chemical Feast, The Ralph Nader Study Group Report on Food [405 U.S. 727, 747] Protection and the Food and Drug Administration passim (1970); Massel, The Regulatory Process, 26 Law & Contemp. Prob. 181, 189 (1961); J. Landis, Report on Regulatory Agencies to the President-Elect 13, 69 (1960).
[ Footnote 7 ] The Forest Reserve Act of 1897, 30 Stat. 35, 16 U.S.C. 551, imposed upon the Secretary of the Interior the duty to “preserve the [national] forests . . . from destruction” by regulating their “occupancy and use.” In 1905 these duties and powers were transferred to the Forest Service created within the Department of Agriculture by the Act of Feb. 1, 1905, 33 Stat. 628, 16 U.S.C. 472. The phrase “occupancy and use” has been the cornerstone for the concept of “multiple use” of national forests, that is, the policy that uses other than logging were also to be taken into consideration in managing our 154 national forests. This policy was made more explicit by the Multiple-Use Sustained-Yield Act of 1960, 74 Stat. 215, 16 U.S.C. 528-531, which provides that competing considerations should include outdoor recreation, range, timber, watershed, wildlife, and fish purposes. The Forest Service, influenced by powerful logging interests, has, however, paid only lip service to its multiple-use mandate and has auctioned away millions of timberland acres without considering environmental or conservational interests. The importance of national forests to the construction and logging industries results from the type of lumber grown therein which is well suited to builders’ needs. For example, Western acreage produces Douglas fir (structural support) and ponderosa pine (plywood lamination). In order to preserve the total acreage and so-called “maturity” of timber, the annual size of a Forest Service harvest is supposedly equated with expected yearly reforestation. Nonetheless, yearly cuts have increased from 5.6 billion board feet in 1950 to 13.74 billion in 1971. Forestry professionals challenge the Service’s explanation that this harvest increase to 240% is not really overcutting but instead has resulted from its improved management of timberlands. “Improved management,” answer the critics, is only a euphemism for exaggerated regrowth forecasts by the Service. N. Y. Times, Nov. 15, 1971, p. 48, col. 1. Recent rises in lumber prices have caused a new round of industry pressure to auction more federally owned timber. See Wagner, Resources Report/Lumbermen, [405 U.S. 727, 749] conservationists head for new battle over government timber, 3 National J. 657 (1971).
Aside from the issue of how much timber should be cut annually, another crucial question is how lumber should be harvested. Despite much criticism, the Forest Service had adhered to a policy of permitting logging companies to “clearcut” tracts of auctioned acreage. “Clearcutting,” somewhat analogous to strip mining, is the indiscriminate and complete shaving from the earth of all trees – regardless of size or age – often across hundreds of contiguous acres.
Of clearcutting, Senator Gale McGee, a leading antagonist of Forest Service policy, complains: “The Forest Service’s management policies are wreaking havoc with the environment. Soil is eroding, reforestation is neglected if not ignored, streams are silting, and clearcutting remains a basic practice.” N. Y. Times, Nov. 14, 1971, p. 60, col. 2. He adds: “In Wyoming . . . the Forest Service is very much . . . nursemaid . . . to the lumber industry . . . .” Hearings on Management Practices on the Public Lands before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, pt. 1, p. 7 (1971).
Senator Jennings Randolph offers a similar criticism of the leveling by lumber companies of large portions of the Monongahela National Forest in West Virginia. Id., at 9. See also 116 Cong. Rec. 36971 (reprinted speech of Sen. Jennings Randolph concerning Forest Service policy in Monongahela National Forest). To investigate similar controversy surrounding the Service’s management of the Bitterroot National Forest in Montana, Senator Lee Metcalf recently asked forestry professionals at the University of Montana to study local harvesting practices. The faculty group concluded that public dissatisfaction had arisen from the Forest Service’s “overriding concern for sawtimber production” and its “insensitivity to the related forest uses and to the . . . public’s interest in environmental values.” S. Doc. No. 91-115, p. 14 (1970). See also Behan, Timber Mining: Accusation or Prospect? American Forests, Nov. 1971, p. 4 (additional comments of faculty participant); Reich, The Public and the Nation’s Forests, 50 Calif. L. Rev. 381-400 (1962).
Former Secretary of the Interior Walter Hickel similarly faulted clearcutting as excusable only as a money-saving harvesting practice [405 U.S. 727, 750] for large lumber corporations. W. Hickel, Who Owns America? 130 (1971). See also Risser, The U.S. Forest Service: Smokey’s Strip Miners, 3 The Washington Monthly, Dec. 1971, p. 16. And at least one Forest Service study team shares some of these criticisms of clearcutting. U.S. Dept. of Agriculture, Forest Management in Wyoming 12 (1971). See also Public Land Law Review Comm’n, Report to the President and to the Congress 44 (1970); Chapman, Effects of Logging upon Fish Resources of the West Coast, 60 J. of Forestry 533 (1962).
A third category of criticism results from the Service’s huge backlog of delayed reforestation projects. It is true that Congress has underfunded replanting programs of the Service but it is also true that the Service and lumber companies have regularly ensured that Congress fully funds budgets requested for the Forest Service’s “timber sales and management.” M. Frome, The Environment and Timber Resources, in What’s Ahead for Our Public Lands? 23, 24 (H. Pyles ed. 1970).
[ Footnote 8 ] Permitting a court to appoint a representative of an inanimate object would not be significantly different from customary judicial appointments of guardians ad litem, executors, conservators, receivers, or counsel for indigents.
The values that ride on decisions such as the present one are often not appreciated even by the so-called experts.
Aldo Leopold wrote in Round River 147 (1953):
[ Footnote 9 ] Senator Cranston has introduced a bill to establish a 35,000-acre Pupfish National Monument to honor the pupfish which are one inch long and are useless to man. S. 2141, 92d Cong., 1st Sess. They are too small to eat and unfit for a home aquarium. But as Michael Frome has said:
[ Footnote * ] Tr. of Oral Arg. 31-35.
MR. JUSTICE BRENNAN, dissenting.
I agree that the Sierra Club has standing for the reasons stated by my Brother BLACKMUN in Alternative No. 2 of his dissent. I therefore would reach the merits. Since the Court does not do so, however, I simply note agreement with my Brother BLACKMUN that the merits are substantial.
MR. JUSTICE BLACKMUN, dissenting.
The Court’s opinion is a practical one espousing and adhering to traditional notions of standing as somewhat modernized by Data Processing Service v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970); and Flast v. Cohen, 392 U.S. 83 (1968). If this were an ordinary case, I would join the opinion and the Court’s judgment and be quite content.
But this is not ordinary, run-of-the-mill litigation. The case poses – if only we choose to acknowledge and reach them – significant aspects of a wide, growing, and disturbing problem, that is, the Nation’s and the world’s deteriorating environment with its resulting ecological disturbances. Must our law be so rigid and our procedural concepts so inflexible that we render ourselves helpless when the existing methods and the traditional [405 U.S. 727, 756] concepts do not quite fit and do not prove to be entirely adequate for new issues?
The ultimate result of the Court’s decision today, I fear, and sadly so, is that the 35.3-million-dollar complex, over 10 times greater than the Forest Service’s suggested minimum, will now hastily proceed to completion; that serious opposition to it will recede in discouragement; and that Mineral King, the “area of great natural beauty nestled in the Sierra Nevada Mountains,” to use the Court’s words, will become defaced, at least in part, and, like so many other areas, will cease to be “uncluttered by the products of civilization.”
I believe this will come about because: (1) The District Court, although it accepted standing for the Sierra Club and granted preliminary injunctive relief, was reversed by the Court of Appeals, and this Court now upholds that reversal. (2) With the reversal, interim relief by the District Court is now out of the question and a permanent injunction becomes most unlikely. (3) The Sierra Club may not choose to amend its complaint or, if it does desire to do so, may not, at this late date, be granted permission. (4) The ever-present pressure to get the project under way will mount. (5) Once under way, any prospect of bringing it to a halt will grow dim. Reasons, most of them economic, for not stopping the project will have a tendency to multiply. And the irreparable harm will be largely inflicted in the earlier stages of construction and development.
Rather than pursue the course the Court has chosen to take by its affirmance of the judgment of the Court of Appeals, I would adopt one of two alternatives:
1. I would reverse that judgment and, instead, approve the judgment of the District Court which recognized standing in the Sierra Club and granted preliminary relief. I would be willing to do this on condition that the Sierra Club forthwith amend its complaint to meet the [405 U.S. 727, 757] specifications the Court prescribes for standing. If Sierra Club fails or refuses to take that step, so be it; the case will then collapse. But if it does amend, the merits will be before the trial court once again. As the Court, ante, at 730 n. 2, so clearly reveals, the issues on the merits are substantial and deserve resolution. They assay new ground. They are crucial to the future of Mineral King. They raise important ramifications for the quality of the country’s public land management. They pose the propriety of the “dual permit” device as a means of avoiding the 80-acre “recreation and resort” limitation imposed by Congress in 16 U.S.C. 497, an issue that apparently has never been litigated, and is clearly substantial in light of the congressional expansion of the limitation in 1956 arguably to put teeth into the old, unrealistic five-acre limitation. In fact, they concern the propriety of the 80-acre permit itself and the consistency of the entire, enormous development with the statutory purposes of the Sequoia Game Refuge, of which the Valley is a part. In the context of this particular development, substantial questions are raised about the use of a national park area for Disney purposes for a new high speed road and a 66,000-volt power line to serve the complex. Lack of compliance with existing administrative regulations is also charged. These issues are not shallow or perfunctory.
2. Alternatively, I would permit an imaginative expansion of our traditional concepts of standing in order to enable an organization such as the Sierra Club, possessed, as it is, of pertinent, bona fide, and well-recognized attributes and purposes in the area of environment, to litigate environmental issues. This incursion upon tradition need not be very extensive. Certainly, it should be no cause for alarm. It is no more progressive than was the decision in Data Processing itself. It need only recognize the interest of one who has a provable, [405 U.S. 727, 758] sincere, dedicated, and established status. We need not fear that Pandora’s box will be opened or that there will be no limit to the number of those who desire to participate in environmental litigation. The courts will exercise appropriate restraints just as they have exercised them in the past. Who would have suspected 20 years ago that the concepts of standing enunciated in Data Processing and Barlow would be the measure for today? And MR. JUSTICE DOUGLAS, in his eloquent opinion, has imaginatively suggested another means and one, in its own way, with obvious, appropriate, and self-imposed limitations as to standing. As I read what he has written, he makes only one addition to the customary criteria (the existence of a genuine dispute; the assurance of adversariness; and a conviction that the party whose standing is challenged will adequately represent the interests he asserts), that is, that the litigant be one who speaks knowingly for the environmental values he asserts.
I make two passing references:
1. The first relates to the Disney figures presented to us. The complex, the Court notes, will accommodate 14,000 visitors a day (3,100 overnight; some 800 employees; 10 restaurants; 20 ski lifts). The State of California has proposed to build a new road from Hammond to Mineral King. That road, to the extent of 9.2 miles, is to traverse Sequoia National Park. It will have only two lanes, with occasional passing areas, but it will be capable, it is said, of accommodating 700-800 vehicles per hour and a peak of 1,200 per hour. We are told that the State has agreed not to seek any further improvement in road access through the park.
If we assume that the 14,000 daily visitors come by automobile (rather than by helicopter or bus or other known or unknown means) and that each visiting automobile carries four passengers (an assumption, I am [405 U.S. 727, 759] sure, that is far too optimistic), those 14,000 visitors will move in 3,500 vehicles. If we confine their movement (as I think we properly may for this mountain area) to 12 hours out of the daily 24, the 3,500 automobiles will pass any given point on the two-lane road at the rate of about 300 per hour. This amounts to five vehicles per minute, or an average of one every 12 seconds. This frequency is further increased to one every six seconds when the necessary return traffic along that same two-lane road is considered. And this does not include service vehicles and employees’ cars. Is this the way we perpetuate the wilderness and its beauty, solitude, and quiet?
2. The second relates to the fairly obvious fact that any resident of the Mineral King area – the real “user” – is an unlikely adversary for this Disney-governmental project. He naturally will be inclined to regard the situation as one that should benefit him economically. His fishing or camping or guiding or handyman or general outdoor prowess perhaps will find an early and ready market among the visitors. But that glow of anticipation will be short-lived at best. If he is a true lover of the wilderness – as is likely, or he would not be near Mineral King in the first place – it will not be long before he yearns for the good old days when masses of people – that 14,000 influx per day – and their thus far uncontrollable waste were unknown to Mineral King.
Do we need any further indication and proof that all this means that the area will no longer be one “of great natural beauty” and one “uncluttered by the products of civilization?” Are we to be rendered helpless to consider and evaluate allegations and challenges of this kind because of procedural limitations rooted in traditional concepts of standing? I suspect that this may be the result of today’s holding. As the Court points out, ante, at 738-739, other federal tribunals have [405 U.S. 727, 760] not felt themselves so confined. 1 I would join those progressive holdings.
The Court chooses to conclude its opinion with a footnote reference to De Tocqueville. In this environmental context I personally prefer the older and particularly pertinent observation and warning of John Donne. 2
[ Footnote 1 ] Environmental Defense Fund, Inc. v. Hardin, 138 U.S. App. D.C. 391, 394-395, 428 F.2d 1093, 1096-1097 (1970); Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 101-105 (CA2 1970), cert. denied, 400 U.S. 949 ; Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608, 615-617 (CA2 1965); Izaak Walton League v. St. Clair, 313 F. Supp. 1312, 1316-1317 (Minn. 1970); Environmental Defense Fund, Inc. v. Corps of Engineers, 324 F. Supp. 878, 879-880 (DC 1971); Environmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 734-736 (ED Ark. 1970-1971); Sierra Club v. Hardin, 325 F. Supp. 99, 107-112 (Alaska 1971); Upper Pecos Assn. v. Stans, 328 F. Supp. 332, 333-334 (N. Mex. 1971); Cape May County Chapter, Inc., Izaak Walton League v. Macchia, 329 F. Supp. 504, 510-514 (N. J. 1971). See National Automatic Laundry & Cleaning Council v. Shultz, 143 U.S. App. D.C. 274, 278-279, 443 F.2d 689, 693-694 (1971); West Virginia Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 234-235 (CA4 1971); Environmental Defense Fund Inc. v. HEW, 138 U.S. App. D.C. 381, 383 n. 2, 428 F.2d 1083, 1085 n. 2 (1970); Honchok v. Hardin, 326 F. Supp. 988, 991 (Md. 1971).
[ Footnote 2 ] “No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any man’s death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; it tolls for thee.” Devotions XVII.