U.S. Supreme Court
SIERRA CLUB v. MORTON, 405 U.S. 727 (1972)
405 U.S. 727
SIERRA CLUB v. MORTON, SECRETARY OF THE INTERIOR, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 70-34.
Argued November 17, 1971
Decided April 19, 1972
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.
I
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 Though once the site of extensive mining activity, Mineral King
is now used almost exclusively for recreational purposes. 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.
Prodded by a rapidly increasing demand for skiing facilities, the Forest Service
published a prospectus in 1965, inviting bids from private developers for the
construction and operation of a ski resort that would also serve as a summer
recreation area. The proposal of Walt Disney Enterprises, Inc., was chosen from
those of six bidders, and Disney received a three-year permit to conduct surveys
and explorations in the valley in connection with its preparation of a complete
master plan for the resort.
The final Disney plan, approved by the Forest Service in January 1969,
outlines a $35 million complex of motels, restaurants, swimming pools, parking
lots, and other structures designed to accommodate 14,000 visitors daily. This
complex is to be constructed on 80 acres of the valley floor under a 30-year use
permit from the Forest Service. Other facilities, including ski lifts, ski
trails, a cog-assisted railway, and utility installations, are to be constructed
on the mountain slopes and in other parts of the valley under a revocable
special-use permit. To provide access to the resort, the State of California
proposes to construct a highway 20 miles in length. A section of this road would
traverse Sequoia National Park, as would a proposed high-voltage power line
needed to provide electricity for the resort. Both the highway and the power
line require the approval of the Department of the Interior, which is entrusted
with the preservation and maintenance of the national parks.
Representatives of the Sierra Club, who favor maintaining Mineral King
largely in its present state, followed the progress of recreational planning for
the valley [405 U.S. 727, 730] with close attention and
increasing dismay. They unsuccessfully sought a public hearing on the proposed
development in 1965, and in subsequent correspondence with officials of the
Forest Service and the Department of the Interior, they expressed the Club's
objections to Disney's plan as a whole and to particular features included in
it. In June 1969 the Club filed the present suit in the United States District
Court for the Northern District of California, seeking a declaratory judgment
that various aspects of the proposed development contravene federal laws and
regulations governing the preservation of national parks, forests, and game
refuges,2 and also seeking preliminary and
permanent injunctions restraining the federal officials involved from granting
their approval or issuing permits in connection with the Mineral King project.
The petitioner Sierra Club sued as a membership corporation with "a special
interest in the conservation and the sound maintenance of the national parks,
game refuges and forests of the country," and invoked the judicial-review
provisions of the Administrative Procedure Act, 5 U.S.C. 701 et seq.
[405 U.S. 727, 731]
After two days of hearings, the District Court granted the requested
preliminary injunction. It rejected the respondents' challenge to the Sierra
Club's standing to sue, and determined that the hearing had raised questions
"concerning possible excess of statutory authority, sufficiently substantial and
serious to justify a preliminary injunction . . . ." The respondents appealed,
and the Court of Appeals for the Ninth Circuit reversed. 433 F.2d 24. With
respect to the petitioner's standing, the court noted that there was "no
allegation in the complaint that members of the Sierra Club would be affected by
the actions of [the respondents] other than the fact that the actions are
personally displeasing or distasteful to them," id., at 33, and concluded:
"We do not believe such club concern without a showing of more direct
interest can constitute standing in the legal sense sufficient to challenge
the exercise of responsibilities on behalf of all the citizens by two
cabinet level officials of the government acting under Congressional and
Constitutional authority." Id., at 30.
Alternatively, the Court of Appeals held that the Sierra Club had not made an
adequate showing of irreparable injury and likelihood of success on the merits
to justify issuance of a preliminary injunction. The court thus vacated the
injunction. The Sierra Club filed a petition for a writ of certiorari which we
granted, 401 U.S. 907, to review the questions of federal law presented.
II
The first question presented is whether the Sierra Club has
alleged facts that entitle it to obtain judicial review of the challenged
action. Whether a party has a sufficient stake in an otherwise justiciable
controversy to obtain judicial resolution of that controversy is what
[405 U.S. 727, 732]
has traditionally been referred to as the question of standing to sue. Where the
party does not rely on any specific statute authorizing invocation of the
judicial process, the question of standing depends upon whether the party has
alleged such a "personal stake in the outcome of the controversy," Baker v.
Carr, 369 U.S. 186, 204, as to ensure that "the dispute sought to be adjudicated
will be presented in an adversary context and in a form historically viewed as
capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101. Where,
however, Congress has authorized public officials to perform certain functions
according to law, and has provided by statute for judicial review of those
actions under certain circumstances, the inquiry as to standing must begin with
a determination of whether the statute in question authorizes review at the
behest of the plaintiff.3
The Sierra Club relies upon 10 of the Administrative Procedure Act (APA), 5
U.S.C. 702, which provides:
"A person suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency [405 U.S.
727, 733] action within the meaning of a relevant statute, is
entitled to judicial review thereof."
Early decisions under this statute interpreted the language as adopting the
various formulations of "legal interest" and "legal wrong" then prevailing as
constitutional requirements of standing.4
But, in Data Processing Service v. Camp, 397 U.S. 150, and Barlow v. Collins,
397 U.S. 159, decided the same day, we held more broadly that persons had
standing to obtain judicial review of federal agency action under 10 of the APA
where they had alleged that the challenged action had caused them "injury in
fact," and where the alleged injury was to an interest "arguably within the zone
of interests to be protected or regulated" by the statutes that the agencies
were claimed to have violated.5
In Data Processing, the injury claimed by the petitioners consisted of harm
to their competitive position in the computer-servicing market through a ruling
by the Comptroller of the Currency that national banks might perform
data-processing services for their customers. In Barlow, the petitioners were
tenant farmers who claimed that certain regulations of the Secretary of
Agriculture adversely affected their economic position vis-a-vis their
landlords. These palpable economic injuries have long been recognized as
sufficient to lay the basis for standing, with or without a specific statutory [405 U.S. 727, 734] provision for judicial
review.6 Thus, neither Data Processing nor Barlow
addressed itself to the question, which has arisen with increasing frequency in
federal courts in recent years, as to what must be alleged by persons who claim
injury of a noneconomic nature to interests that are widely shared.7 That question is presented in this case.
III
The injury alleged by the Sierra Club will be incurred
entirely by reason of the change in the uses to which Mineral King will be put,
and the attendant change in the aesthetics and ecology of the area. Thus, in
referring to the road to be built through Sequoia National Park, the complaint
alleged that the development "would destroy or otherwise adversely affect the
scenery, natural and historic objects and wildlife of the park and would impair
the enjoyment of the park for future generations." We do not question that this
type of harm may amount to an "injury in fact" sufficient to lay the basis for
standing under 10 of the APA. Aesthetic and environmental well-being, like
economic well-being, are important ingredients of the quality of life in our
society, and the fact that particular environmental interests are shared by the
many rather than the few does not make them less deserving of legal protection
through the judicial process. But the "injury in fact" test requires more than
an injury to a cognizable [405 U.S. 727, 735]
interest. It requires that the party seeking review be himself among the
injured.
The impact of the proposed changes in the environment of Mineral King will
not fall indiscriminately upon every citizen. The alleged injury will be felt
directly only by those who use Mineral King and Sequoia National Park, and for
whom the aesthetic and recreational values of the area will be lessened by the
highway and ski resort. The Sierra Club failed to allege that it or its members
would be affected in any of their activities or pastimes by the Disney
development. Nowhere in the pleadings or affidavits did the Club state that its
members use Mineral King for any purpose, much less that they use it in any way
that would be significantly affected by the proposed actions of the respondents.8 [405 U.S. 727,
736]
The Club apparently regarded any allegations of individualized injury as
superfluous, on the theory that this was a "public" action involving questions
as to the use of natural resources, and that the Club's longstanding concern
with and expertise in such matters were sufficient to give it standing as a
"representative of the public".9 This theory reflects a misunderstanding of our
cases involving so-called "public actions" in the area of administrative law.
The origin of the theory advanced by the Sierra Club may be traced to a
dictum in Scripps-Howard Radio v. FCC, 316 U.S. 4, in which the licensee of a
radio station in Cincinnati, Ohio, sought a stay of an order of the FCC allowing
another radio station in a nearby city to change its frequency and increase its
range. In discussing its power to grant a stay, the Court noted that "these
private litigants have standing only as representatives of the public interest."
Id., at 14. But that observation did not describe the basis upon which the
appellant was allowed to obtain judicial review as a "person aggrieved" within
the meaning of the statute involved in that case,10 since Scripps-Howard [405 U.S.
727, 737] was clearly "aggrieved" by reason of the economic injury that
it would suffer as a result of the Commission's action.11 The Court's statement was, rather, directed to the theory
upon which Congress had authorized judicial review of the Commission's actions.
That theory had been described earlier in FCC v. Sanders Bros. Radio Station,
309 U.S. 470, 477, as follows:
"Congress had some purpose in enacting 402 (b) (2). It may have been of
opinion that one likely to be financially injured by the issue of a license
would be the only person having a sufficient interest to bring to the
attention of the appellate court errors of law in the action of the
Commission in granting the license. It is within the power of Congress to
confer such standing to prosecute an appeal."
Taken together, Sanders and Scripps-Howard thus established a dual
proposition: the fact of economic injury is what gives a person standing to seek
judicial review under the statute, but once review is properly invoked, that
person may argue the public interest in support of his claim that the agency has
failed to comply with its statutory mandate.12 It was in the latter sense that the
"standing" of the appellant in Scripps-Howard existed only as a "representative
of the public interest." It is in a similar sense that we have used the phrase
"private attorney general" to [405 U.S. 727, 738]
describe the function performed by persons upon whom Congress has conferred the
right to seek judicial review of agency action. See Data Processing, supra, at
154.
The trend of cases arising under the APA and other statutes authorizing
judicial review of federal agency action has been toward recognizing that
injuries other than economic harm are sufficient to bring a person within the
meaning of the statutory language, and toward discarding the notion that an
injury that is widely shared is ipso facto not an injury sufficient to provide
the basis for judicial review.13 We noted this development with approval in Data Processing,
397 U.S., at 154, in saying that the interest alleged to have been injured "may
reflect `aesthetic, conservational, and recreational' as well as economic
values." But broadening the categories of injury that may be alleged in support
of standing is a different matter from abandoning the requirement that the party
seeking review must himself have suffered an injury.
Some courts have indicated a willingness to take this latter step by
conferring standing upon organizations [405 U.S.
727, 739] that have demonstrated "an organizational interest in the
problem" of environmental or consumer protection. Environmental Defense Fund v.
Hardin, 138 U.S. App. D.C. 391, 395, 428 F.2d 1093, 1097.14
It is clear that an organization whose members are injured may represent those
members in a proceeding for judicial review. See, e. g., NAACP v. Button, 371
U.S. 415, 428. But a mere "interest in a problem," no matter how longstanding
the interest and no matter how qualified the organization is in evaluating the
problem, is not sufficient by itself to render the organization "adversely
affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a
large and long-established organization, with a historic commitment to the cause
of protecting our Nation's natural heritage from man's depredations. But if a
"special interest" in this subject were enough to entitle the Sierra Club to
commence this litigation, there would appear to be no objective basis upon which
to disallow a suit by any other bona fide "special interest" organization,
however small or short-lived. And if any group with a bona fide "special
interest" could initiate such litigation, it is difficult to perceive why any
individual citizen with the [405 U.S. 727, 740]
same bona fide special interest would not also be entitled to do so.
The requirement that a party seeking review must allege facts showing that he
is himself adversely affected does not insulate executive action from judicial
review, nor does it prevent any public interests from being protected through
the judicial process.15 It does serve as at least a rough attempt
to put the decision as to whether review will be sought in the hands of those
who have a direct stake in the outcome. That goal would be undermined were we to
construe the APA to authorize judicial review at the behest of organizations or
individuals who seek to do no more than vindicate their own value preferences
through the judicial process.16 The principle that the Sierra Club would
have us establish in this case would do just that.
[405 U.S. 727, 741]
As we conclude that the Court of Appeals was correct in its holding that the
Sierra Club lacked standing to maintain this action, we do not reach any other
questions presented in the petition, and we intimate no view on the merits of
the complaint. The judgment is
Affirmed.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the
consideration or decision of this case.
Footnotes
[Footnote 1] Act of July 3, 1926, 6, 44
Stat. 821, 16 U.S.C. 688.
[Footnote 2] As analyzed by the District
Court, the complaint alleged violations of law falling into four categories.
First, it claimed that the special-use permit for construction of the resort
exceeded the maximum-acreage limitation placed upon such permits by 16 U.S.C.
497, and that issuance of a "revocable" use permit was beyond the authority of
the Forest Service. Second, it challenged the proposed permit for the highway
through Sequoia National Park on the grounds that the highway would not serve
any of the purposes of the park, in alleged violation of 16 U.S.C. 1, and that
it would destroy timber and other natural resources protected by 16 U.S.C. 41
and 43. Third, it claimed that the Forest Service and the Department of the
Interior had violated their own regulations by failing to hold adequate public
hearings on the proposed project. Finally, the complaint asserted that 16 U.S.C.
45c requires specific congressional authorization of a permit for construction
of a power transmission line within the limits of a national park.
[Footnote 3] Congress may not confer
jurisdiction on Art. III federal courts to render advisory opinions, Muskrat v.
United States, 219 U.S. 346, or to entertain "friendly" suits, United States v.
Johnson, 319 U.S. 302, or to resolve "political questions," Luther v. Borden, 7
How. 1, because suits of this character are inconsistent with the judicial
function under Art. III. But where a dispute is otherwise justiciable, the
question whether the litigant is a "proper party to request an adjudication of a
particular issue," Flast v. Cohen, 392 U.S. 83, 100, is one within the power of
Congress to determine. Cf. FCC v. Sanders Bros. Radio Station, 309 U.S. 470,
477; Flast v. Cohen, supra, at 120 (Harlan, J., dissenting); Associated
Industries v. Ickes, 134 F.2d 694, 704. See generally Berger, Standing to Sue in
Public Actions: Is it a Constitutional Requirement?, 78 Yale L. J. 816, 837 et
seq. (1969); Jaffe, The Citizen as Litigant in Public Actions: The
Non-Hohfeldian or Ideological Plaintiff, 116 U. Pa. L. Rev. 1033 (1968).
[Footnote 4] See, e. g., Kansas City Power
& Light Co. v. McKay, 96 U.S. App. D.C. 273, 281, 225 F.2d 924, 932; Ove
Gustavsson Contracting Co. v. Floete, 278 F.2d 912, 914; Duba v. Schuetzle, 303
F.2d 570, 574. The theory of a "legal interest" is expressed in its extreme form
in Alabama Power Co. v. Ickes, 302 U.S. 464, 479-481. See also Tennessee
Electric Power Co. v. TVA, 306 U.S. 118, 137-139.
[Footnote 5] In deciding this case we do
not reach any questions concerning the meaning of the "zone of interests" test
or its possible application to the facts here presented.
[Footnote 6] See, e. g., Hardin v.
Kentucky Utilities Co., 390 U.S. 1, 7; Chicago v. Atchison, T. & S. F. R. Co.,
357 U.S. 77, 83; FCC v. Sanders Bros. Radio Station, supra, at 477.
[Footnote 7] No question of standing was
raised in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402. The
complaint in that case alleged that the organizational plaintiff represented
members who were "residents of Memphis, Tennessee who use Overton Park as a park
land and recreation area and who have been active since 1964 in efforts to
preserve and protect Overton Park as a park land and recreation area."
[Footnote 8] The only reference in the
pleadings to the Sierra Club's interest in the dispute is contained in paragraph
3 of the complaint, which reads in its entirely as follows:
"Plaintiff Sierra Club is a non-profit corporation organized and operating
under the laws of the State of California, with its principal place of
business in San Francisco, California since 1892. Membership of the club is
approximately 78,000 nationally, with approximately 27,000 members residing
in the San Francisco Bay Area. For many years the Sierra Club by its
activities and conduct has exhibited a special interest in the conservation
and the sound maintenance of the national parks, game refuges and forests of
the country, regularly serving as a responsible representative of persons
similarly interested. One of the principal purposes of the Sierra Club is to
protect and conserve the national resources of the Sierra Nevada Mountains.
Its interests would be vitally affected by the acts hereinafter described
and would be aggrieved by those acts of the defendants as hereinafter more
fully appears."
In an amici curiae brief filed in this Court by the Wilderness Society and
others, it is asserted that the Sierra Club has conducted regular camping trips
into the Mineral King area, and that various members of the Club have used and
continue to use the area for recreational purposes. These allegations were not
contained in the pleadings, nor were they brought to the attention of the Court
[405 U.S. 727, 736] of Appeals. Moreover, the Sierra Club in its reply
brief specifically declines to rely on its individualized interest, as a basis
for standing. See n. 15, infra. Our decision does not, of course, bar the Sierra
Club from seeking in the District Court to amend its complaint by a motion under
Rule 15, Federal Rules of Civil Procedure.
[Footnote 9] This approach to the question
of standing was adopted by the Court of Appeals for the Second Circuit in
Citizens Committee for the Hudson Valley v. Volpe, 425 F.2d 97, 105:
"We hold, therefore, that the public interest in environmental resources -
an interest created by statutes affecting the issuance of this permit - is a
legally protected interest affording these plaintiffs, as responsible
representatives of the public, standing to obtain judicial review of agency
action alleged to be in contravention of that public interest."
[Footnote 10] The statute involved was
402 (b) (2) of the Communications Act of 1934, 48 Stat. 1093.
[Footnote 11] This much is clear from
the Scripps-Howard Court's citation of FCC v. Sanders Bros. Radio Station, 309
U.S. 470, in which the basis for standing was the competitive injury that the
appellee would have suffered by the licensing of another radio station in its
listening area.
[Footnote 12] The distinction between
standing to initiate a review proceeding, and standing to assert the rights of
the public or of third persons once the proceeding is properly initiated, is
discussed in 3 K. Davis, Administrative Law Treatise 22.05-22.07 (1958).
[Footnote 13] See, e. g., Environmental
Defense Fund v. Hardin, 138 U.S. App. D.C. 391, 395, 428 F.2d 1093, 1097
(interest in health affected by decision of Secretary of Agriculture refusing to
suspend registration of certain pesticides containing DDT); Office of
Communication of the United Church of Christ v. FCC, 123 U.S. App. D.C. 328,
339, 359 F.2d 994. 1005 (interest of television viewers in the programing of a
local station licensed by the FCC); Scenic Hudson Preservation Conf. v. FPC, 354
F.2d 608, 615-616 (interests in aesthetics, recreation, and orderly community
planning affected by FPC licensing of a hydroelectric project); Reade v. Ewing,
205 F.2d 630, 631-632 (interest of consumers of oleomargarine in fair labeling
of product regulated by Federal Security Administration); Crowther v. Seaborg,
312 F. Supp. 1205, 1212 (interest in health and safety of persons residing near
the site of a proposed atomic blast).
[Footnote 14] See Citizens Committee for
the Hudson Valley v. Volpe, n. 9, supra; Environmental Defense Fund, Inc. v.
Corps of Engineers, 325 F. Supp. 728, 734-736; Izaak Walton League v. St. Clair,
313 F. Supp. 1312, 1317. See also Scenic Hudson Preservation Conf. v. FPC,
supra, at 616:
"In order to insure that the Federal Power Commission will adequately
protect the public interest in the aesthetic, conservational, and
recreational aspects of power development, those who by their activities and
conduct have exhibited a special interest in such areas, must be held to be
included in the class of `aggrieved' parties under 313 (b) [of the Federal
Power Act]."
In most, if not all, of these cases, at least one party to the proceeding did
assert an individualized injury either to himself or, in the case of an
organization, to its members.
[Footnote 15] In its reply brief, after
noting the fact that it might have chosen to assert individualized injury to
itself or to its members as a basis for standing, the Sierra Club states:
"The Government seeks to create a `heads I win, tails you lose' situation
in which either the courthouse door is barred for lack of assertion of a
private, unique injury or a preliminary injunction is denied on the ground
that the litigant has advanced private injury which does not warrant an
injunction adverse to a competing public interest. Counsel have shaped their
case to avoid this trap."
The short answer to this contention is that the "trap" does not exist. The
test of injury in fact goes only to the question of standing to obtain judicial
review. Once this standing is established, the party may assert the interests of
the general public in support of his claims for equitable relief. See n. 12 and
accompanying text, supra.
[Footnote 16] Every schoolboy may be
familiar with Alexis de Tocqueville's famous observation, written in the 1830's,
that "[s]carcely any political question arises in the United States that is not
resolved, sooner or later, into a judicial question." 1 Democracy in America 280
(1945). Less familiar, however, is De Tocqueville's further observation that
judicial review is effective largely because it is not
[405 U.S. 727, 741]
available simply at the behest of a partisan faction, but is exercised only to
remedy a particular, concrete injury.
"It will be seen, also, that by leaving it to private interest to censure
the law, and by intimately uniting the trial of the law with the trial of an
individual, legislation is protected from wanton assaults and from the daily
aggressions of party spirit. The errors of the legislator are exposed only
to meet a real want; and it is always a positive and appreciable fact that
must serve as the basis of a prosecution." Id., at 102.
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:
"The Commission . . . is, or can be made, of great use to the railroads. It
satisfies the popular clamor for a government supervision of railroads, at
the same time that that supervision is almost entirely nominal. Further, the
older such a commission gets to be, the more inclined it will be found to
take the business and railroad view of things." M. Josephson, The Politicos
526 (1938).
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 life9 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]
APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING
Extract From Oral Argument of the Solicitor General*
. . . . .
"As far as I know, no case has yet been decided which holds that a
plaintiff which merely asserts that, to quote from the complaint here, its
interest would be widely affected [a]nd that `it would be aggrieved' by the
acts of the defendant, has standing to raise legal questions in court.
"But why not? Do not the courts exist to decide legal questions? And are
they not the most impartial and learned agencies that we have in our
governmental system? Are there not many questions which must be decided by
the courts? Why should not the courts decide any question which any citizen
wants to raise?
"As the tenor of my argument indicates, this raises, I think, a true
question, perhaps a somewhat novel question, in the separation of powers. .
. .
"Ours is not a government by the Judiciary. It is a government of three
branches, each of which was intended to have broad and effective powers
subject to checks and balances. In litigable cases, the courts have great
authority. But the Founders also intended that the Congress should have wide
powers, and that the Executive Branch should have wide powers.
"All these officers have great responsibilities. They are not less sworn
than are the members of this Court to uphold the Constitution of the United
States.
"This, I submit, is what really lies behind the standing doctrine, embodied
in those cryptic words `case' and `controversy' in Article III of the
Constitution. [405 U.S. 727, 754]
"Analytically one could have a system of government in which every
legal question arising in the core of government would be decided by the
courts. It would not be, I submit, a good system.
"More important, it is not the system which was ordained and established in
our Constitution, as it has been understood for nearly 200 years.
"Over the past 20 or 25 years, there has been a great shift in the decision
of legal questions in our governmental operations into the courts. This has
been the result of continuous whittling away of the numerous doctrines which
have been established over the years, designed to minimize the number of
governmental questions which it was the responsibility of the courts to
consider.
"I've already mentioned the most ancient of all: case or controversy, which
was early relied on to prevent the presentation of feigned issues to the
court.
"But there are many other doctrines, which I cannot go into in detail:
reviewability, justiciability, sovereign immunity, mootness in various
aspects, statutes of limitations and laches, jurisdictional amount, real
party in interest, and various questions in relation to joinder.
"Under all of these headings, limitations which previously existed to
minimize the number of questions decided in courts, have broken down in
varying degrees.
"I might also mention the explosive development of class actions, which has
thrown more and more issues into the courts.
. . . . .
"If there is standing in this case, I find it very difficult to think of
any legal issue arising in government which will not have to await one or
more decisions of the Court before the administrator, sworn to uphold the
law, can take any action. I'm not sure that this is good for the government.
I'm not sure that it's good for the [405 U.S. 727, 755] courts. I do find myself more and
more sure that it is not the kind of allocation of governmental power in our
tripartite constitutional system that was contemplated by the Founders.
. . . . .
"I do not suggest that the administrators can act at their whim and without
any check at all. On the contrary, in this area they are subject to
continuous check by the Congress. Congress can stop this development any
time it wants to."
[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:
"A ship is born when she is launched, and lives so long as her identity is
preserved. Prior to her launching she is a mere congeries of wood and iron .
. . . In the baptism of launching she receives her name, and from the moment
her keel touches the water she is transformed . . . . She acquires a
personality of her own." Tucker v. Alexandroff, 183 U.S. 424, 438.
[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.
"A teaspoon of living earth contains 5 million bacteria, 20 million fungi,
one million protozoa, and 200,000 algae. No living human can predict what
vital miracles may be locked in this dab of life, this stupendous reservoir
of genetic materials that have evolved continuously since the dawn of the
earth. For example, molds have existed on earth for about 2 billion years.
But only in this century did we unlock the secret of the penicillins,
tetracyclines, and other antibiotics from the lowly molds, and thus fashion
the most powerful and effective medicines ever discovered by man. Medical
scientists still wince at the thought that we might have inadvertently wiped
[405 U.S. 727, 751] out the rhesus monkey, medically, the most
important research animal on earth. And who knows what revelations might lie
in the cells of the blackback gorilla nesting in his eyrie this moment in
the Virunga Mountains of Rwanda? And what might we have learned from the
European lion, the first species formally noted (in 80 A.D.) as extinct by
the Romans?
"When a species is gone, it is gone forever. Nature's genetic chain,
billions of years in the making, is broken for all time." Conserve - Water,
Land and Life, Nov. 1971, p. 4.
Aldo Leopold wrote in Round River 147 (1953):
"In Germany there is a mountain called the Spessart. Its south slope bears
the most magnificent oaks in the world. American cabinetmakers, when they
want the last word in quality, use Spessart oak. The north slope, which
should be the better, bears an indifferent stand of Scotch pine. Why? Both
slopes are part of the same state forest; both have been managed with
equally scrupulous care for two centuries. Why the difference?
"Kick up the litter under the oaks and you will see that the leaves rot
almost as fast as they fall. Under the pines, though, the needles pile up as
a thick duff; decay is much slower. Why? Because in the Middle Ages the
south slope was preserved as a deer forest by a hunting bishop; the north
slope was pastured, plowed, and cut by settlers, just as we do with our
woodlots in Wisconsin and Iowa today. Only after this period of abuse was
the north slope replanted to pines. During this period of abuse something
happened to the microscopic flora and fauna of the soil. The number of
species was greatly reduced, i. e., the digestive apparatus of the soil lost
some of its parts. Two centuries of conservation have not sufficed to
restore these losses. It required the modern microscope, and a century of
research in soil science, to discover the existence of these `small cogs and
wheels' which determine harmony or disharmony between men and land in the
Spessart."
[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:
"Still I agree with Senator Cranston that saving the pupfish would
symbolize our appreciation of diversity in God's tired old biosphere, the
qualities which hold it together and the interaction of life forms. When
fishermen rise up united to save the pupfish they can save the world as
well." Field & Stream, Dec. 1971, p. 74.
[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.
[405 U.S. 727, 1]
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