Sierra Club v. Leslie Salt Co.

• Citation: 354 F. Supp. 1099
• Decision Date: 13 October 1972
• Docket Number: No. 72 561-WTS.,72 561-WTS.
• Parties: SIERRA CLUB, a non-profit California corporation, et al., Plaintiffs, v. LESLIE SALT CO., a Delaware corporation, et al., Defendants.
• Court: U.S. District Court — Northern District of California

354 F. Supp. 1099

SIERRA CLUB, a non-profit California corporation, et al., Plaintiffs, v. LESLIE SALT CO., a Delaware corporation, et al., Defendants.

No. 72 561-WTS.

United States District Court, N. D. California.

October 13, 1972.

John D. Hoffman, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs.

Edgar B. Washburn of Landels, Ripley & Diamond, San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This is an action brought by the Sierra Club, Save San Francisco Bay Association ("SSFBA"), and Kent C. Dedrick for injunctive and declaratory relief, seeking to compel defendants Leslie Salt Company ("Leslie") and Leslie Properties, Inc. ("Leslie Properties") to remove dikes allegedly constructed and maintained by said defendants in and around an area of San Francisco Bay known as Bair Island.

Plaintiffs allege in the complaint that defendants constructed these dikes without the prior consent of Congress and without submission to and approval by the United States Army Chief of Engineers and the Secretary of the Army as required by 33 U.S.C. §§ 401 and 403 (Rivers and Harbors Act of 1899).

They further allege that the dikes were originally constructed by Leslie to prevent the tide waters of San Francisco Bay from flowing over Bair Island tidal marshes to facilitate the production of salt; that defendants have now ceased to use the area for salt production and now propose to fill and develop the area for residential use; that said dikes have destroyed the ecological productivity of the area; and, that the dikes have had a detrimental and adverse effect upon navigation in the area by obstructing access to formerly navigable waters and by causing the build-up of sediment in that and other areas of San Francisco Bay.

Plaintiffs also charge that the construction and maintenance of such dikes violates 16 U.S.C. § 662 (Fish and Wildlife Coordination Act of 1934), certain California constitutional and statutory provisions, and the "public trust" in navigable waters of the State of California.

Defendants now move to dismiss the action on various grounds, and, to join the Secretary of the Army and the State of California as parties in the action, raising several issues which we shall consider separately as follows:

STANDING

Defendants move to dismiss the action on the grounds that plaintiffs have failed to allege a sufficient injury in fact to give them standing in this action.

Although conceding that aesthetic, conservational and recreational matters as well as economic values may constitute the type of injury that can be alleged in support of standing (Defendants' reply memorandum, filed May 19, 1972, at p. 5), defendants contend that plaintiffs here have failed to allege that they, themselves, have suffered a sufficient injury, relying principally on the decisions in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), aff'g Sierra Club v. Hickel, 433 F.2d 24 (9th Cir. 1970) and Alameda Conservation Assoc. v. State of California, 437 F.2d 1087 (9th Cir. 1971).

On the issue of standing the complaint alleges, in substance and effect, that plaintiff Sierra Club is a national conservation organization having among its purposes the protection of the scenic and natural resources of the United States; that plaintiff SSFBA is a local conservation organization with the purpose of preserving, protecting and enhancing the waters, shoreline, and natural and wildlife resources of San Francisco Bay and its shoreline; that numerous members of both these organizations use the waters of the Bay for sailing, fishing and other water-oriented activities; that many of such members own or reside on property within five miles of the waters of the Bay and derive enjoyment from the scenic beauty of the Bay and benefit from the Bay's moderating effect on the climate of the area and on air pollution; that plaintiff Dedrick resides within five miles of the Bay and frequently sails the waters of the Bay in his own boat, including the waters in and around the area which is the subject matter of this action; that prior to being diked by defendants, the area in question was submerged under the waters of the Bay, constituted a part of the navigable waters of the Bay, served as a major resting and feeding ground for various forms of natural life, served as a sediment trap to retard siltation in the Bay and its tributaries (including two major navigable sloughs which crossed the area in question), and, in its natural state, contributed to the Bay's ability to moderate the climate of the region, to flush and disperse pollutants in the water, and to disperse pollutants in the ambient air; and, that, therefore, the alleged acts of defendants have caused and continue to cause great harm and injury to plaintiffs and to the aesthetic, conservational and recreational interests which they represent.

Sierra Club v. Morton, supra, involved the issue whether the Sierra Club had alleged sufficient facts to give it standing to seek an injunction against a proposed ski development in the Sequoia National Forest on the grounds that federal agency permits to be issued for the project were unlawful. The Sierra Club had chosen to rely on the theory that allegations of the Club's long standing concern with and expertise in matters involving the use of natural resources were sufficient to give it standing as a "representative of the public." Applying the so-called "injury-in-fact" test on standing to the facts alleged in the complaint, the Supreme Court ruled that the allegations of the Club's "generalized" interests were insufficient to give the Club standing. Noting that the party seeking relief must be, himself, among the injured, the Court pointed out that the Club had failed to allege that it or its members would be affected in any of their activities or pastimes by the proposed action sought to be enjoined, and, that nowhere in the pleadings or affidavits did the Club state that its members used the area in question for any purpose, much less that they used it in any way that would be significantly affected by the proposed action, thereby holding implicitly that such an allegation as to the Club's members would have been sufficient to afford the Club standing in the action.¹ 405 U.S. at p. 735, 92 S.Ct. 1361.

The issue here, therefore, is whether the plaintiffs in this action, Sierra Club and SSFBA, have alleged a sufficient injury-in-fact to themselves, or to their members, within the meaning of Sierra Club v. Morton, supra. In determining whether plaintiffs have met that requirement, it is necessary to review the Ninth Circuit's decision in Alameda Conservation Association, supra, involving facts and issues similar to those presented in the present action.

In Alameda, the Alameda Conservation Association, and eight of its members, brought an action against the State of California, the Leslie Salt Co., and others, seeking, among other relief, to enjoin Leslie from filling and obstructing portions of San Francisco Bay on the grounds that such acts were in violation of 33 U.S.C., Sections 401 and 403, the provisions sued under by plaintiffs in the present action. As noted in the opinion of the court, plaintiffs in Alameda alleged that they owned or resided on property so close to the Bay that their health and enjoyment of their property was materially affected by the filling of the Bay and that they would be irreparably injured unless further obstruction and filling by Leslie was restrained; they further alleged that the injury to be suffered by them included ". . . destruction of fisheries and wildlife from which plaintiffs personally benefit and destruction of the fishing characteristics of the San Francisco Bay and its climate sic cooling effect sic . . ." 437 F.2d at 1089. Rendering its decision prior to the Supreme Court's ruling in Sierra Club v. Morton, supra, the Court of Appeals ruled that the Conservation Association, itself, did not have standing (Hamley, J. dissenting), but a majority of the court (Trask, J. dissenting) held that the eight individual plaintiffs who alleged that they owned property either bordering or within six miles of the Bay, had alleged a sufficient interest to afford them standing in the action. Judge Hamley indicated that, in his opinion, plaintiffs' allegations concerning interference with plaintiffs' enjoyment of the aesthetic, conservational and recreational values associated with San Francisco Bay amply established their standing to sue. 437 F.2d at 1096. Judge Merrill, concurring with Judge Hamley on the standing of the eight individual plaintiffs, stated that, in his view, ". . . injury in fact to individuals is threatened if their relationship to the Bay, through proximity of residence or regularity of use, is such that in their normal activities injury to the Bay of the type alleged cannot but affect their esthetic, recreational or environmental interests." 437 F.2d at 1097.

Plaintiffs here allege, on behalf of their members, interests of such members and injury to such interests substantially similar to those held to be sufficient in the case of the eight individual plaintiffs in Alameda, supra. A substantial number of the members are alleged to own or reside on property within five miles of the Bay, and defendants are alleged to have injured certain aesthetic and environmental interests of such members by virtue of the construction of the dikes, i. e., by causing a detrimental effect on the natural beauty, wildlife and moderating effect of the Bay on the climate and on air pollution. The allegations here go even further than those held to be sufficient in Alameda: it is alleged that numerous Sierra Club and SSFBA members sail the waters of the Bay and that the dikes have had an adverse effect on the navigability of the waters of the Bay. Plaintiff Dedrick makes substantially the same allegations on his own behalf.

It is clear...