433 F.2d 24 (9th Cir. 1970), 24966, Sierra Club v. Hickel

Docket Nº:24966.
Citation:433 F.2d 24
Party Name:SIERRA CLUB, a California corporation, Appellee, v. Walter J. HICKEL, individually, and as Secretary of the Interior of the UnitedStates, John S. McLaughlin, individually, and as Superintendent of SequoiaNational Park, Clifford M. Hardin, individually, and as the Secretary ofAgriculture of theUnited States, J. W. Deinema, individually, and as Regio
Case Date:September 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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433 F.2d 24 (9th Cir. 1970)

SIERRA CLUB, a California corporation, Appellee,


Walter J. HICKEL, individually, and as Secretary of the Interior of the UnitedStates, John S. McLaughlin, individually, and as Superintendent of SequoiaNational Park, Clifford M. Hardin, individually, and as the Secretary ofAgriculture of theUnited States, J. W. Deinema, individually, and as Regional Forester, ForestService, and M. R. James, individually, and as Forest Supervisor of the SequoiaNational Forest, Appellants.

No. 24966.

United States Court of Appeals, Ninth Circuit.

Sept. 16, 1970

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[Copyrighted Material Omitted]

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         Walter Kiechel, Jr. (argued), Deputy Asst. Atty. Gen., S. Billingsley Hill, Jacques B. Gelin, Attys., Dept of Justice, Shiro Kashiwa, Asst. Atty. Gen., Lands & National Resources Division, Washington, D.C., James L. Browning, U.S. Atty., San Francisco, Cal., for appellants.

         Leland R. Selna, Jr. (argued), Leo E. Borregard, Matthew P. Mitchell, Howard M. Wexler, of Feldman, Waldman & Kline, Robert W. Jasperson and Gregory Archbald, San Francisco, Cal., for appellee.

         Calvin E. Baldwin, County Counsel, County of Tulare, Visalia, Cal., E. Lewis Reid and Richard G. Hildreth of Steinhart, Goldberg, Feigenbaum & Ladar, San Francisco, Cal., amicus curiae for County of Tulare.

         John G. Schwartz, San Mateo, Cal., amicus curiae for Far West Ski Assn. and U.S. Ski Assn.

         Before HAMLEY, KILKENNY and TRASK, Circuit Judges.

         TRASK, Circuit Judge:

         This is an appeal from an order of the district court granting a preliminary injunction. The action was instituted by a verified complaint filed by the Sierra Club, a non-profit California corporation, against Walter J. Hickel, individually, and as Secretary of the Interior; Clifford M. Hardin, individually, and as Secretary of Agriculture; and the Superintendent of the Sequoia National Park and Supervisor of the Sequoia National Forest.

         The relief sought was a declaratory judgment and preliminary and permanent injunctions enjoining issuance of the permits required for implementation of a plan proposed by Walt Disney Productions, Inc., for a large scale commercial-recreational development in and near Mineral King Valley in the Sequoia National Game Refuge located within Sequoia National Forest in California. The development also involved a proposed road which would in part traverse a portion of Sequoia National Park.

         Amicus curiae briefs supporting the position of the defendants-appellants were filed by the United States Ski Association, the Far West Ski Association and the County of Tulare.

         Jurisdiction of the district court was asserted under Section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-706; under the Federal Question Statute, 28 U.S.C. § 1331(a); the 1962 Mandamus Act, 28 U.S.C. § 1361; and under the Declaratory Judgments Act, 28 U.S.C. § 2201. Jurisdiction of this court rests on 28 U.S.C. § 1292(a)(1) authorizing interlocutory appeals from orders granting injunctions.

         A brief summary of the controversy is as follows: In February 1965, the Forest Service of the Department of Agriculture published a prospectus inviting interested parties to submit proposals for the development of an all-year recreational project in Mineral King Valley in the Sequoia National Forest, in accordance with certain minimum requirements as established

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by the prospectus. Walt Disney Productions (Disney) and five other bidders submitted proposals in response to the prospectus. After careful study the Secretary of Agriculture determined the Disney proposal to be the best. Thereafter, on October 10, 1966, a special use permit for planning was issued to Disney for a term of three years in order to enable Disney to make the necessary studies to prepare a master plan for the project which would meet with Forest Service approval. The plan was duly submitted and approved by the Forest Service on January 21, 1969, and is the plan that is the subject of this litigation.

         In connection with the plan, the Department of the Interior has proposed to permit the State of California to construct a new access road to Mineral King Valley. The new highway would be 20.4 miles long, of which 6.5 miles would cross Bureau of Land Management (Department of Interior) land, 9.2 miles would cross Sequoia National Park (Department of Interior) land, 1.8 miles would cross Sequoia National Forest (Department of Agriculture) land, and the remaining 2.9 miles would cross various parcels of private property. It would approximately parallel the existing Mineral King roadway which appears on the map (See Record 115) to be a tortuous road now described as substandard. In connection with the project, the Secretary of the Interior also agreed to grant a right of way for electrical transmission lines through the park.

         In announcing the master plan and its approval, the Forest Service stated:

         'Our goal is to provide a needed public service so that the scenic, aesthetic, and recreational resources of Mineral King can be enjoyed by the American people as part of their heritage. At the same time, we intend to work with the Disney organization to assure that the development can be accomplished without substantial impairment or permanent undesirable ecological impact. We are confident that these twin challenges have been faced in a creative and artistic fashion.' (T.R. 52.)

         The initial description of the facilities proposed stated that accommodations would be provided for 1,505 overnight guests plus day visitors. A sub-level automobile reception center would be provided outside of the main Mineral King Valley with a cog-assist railway to transport people to the main village. No visitor automobiles would be allowed in Mineral King Valley proper. The announcement of the Forest Service continued:

         'While the Mineral King area is certain to become increasingly popular, its ultimate development will be guided by aesthetic and ecological limitations, rather than market potential. The Disney master plan has been designed with this consideration uppermost.'

         On the merits, the Sierra Club contends that the Secretary of Agriculture who has the responsibility under Congress for management of the national forests has exceeded his authority and has acted illegally as well as arbitrarily and capriciously in approving the master plan proposed by Disney. It urges that the Secretary of Agriculture's proposal to issue a term permit for an eighty acre parcel for a term of thirty years for construction of improvements such as hotels, pools and parking lots, and to issue a revocable permit for additional acreage upon which such improvements as ski lifts, trails, and sewage treatment facilities would be built, would constitute illegal action in excess of authority. Second, the Sierra Club asserts that the action of the Secretary of the Interior in his proposal to permit the State of California to construct a road across Sequoia National Park for a distance of 9.2 miles to replace an existing road across the park would be illegal. Finally, the club asserts that no authority exists for the Secretary of the Interior to issue a permit for the construction of a transmission line across the park lands as a part of the master plan.

         Encompassing all is the vehement argument of Sierra that the necessary result of the development proposal is the 'permanent destruction of natural values'

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and the 'irreparable harm to the public interest.' These, it is asserted, are 'irreversible effects of administrative lawlessness.'

         Article IV, Section 3 of The United States Constitution commits the management and control of the lands of the United States to Congress. That congressional power is unlimited. The Supreme Court said in Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99, 20 L.Ed. 534 (1872):

         'With respect to the public domain, the Constitution vests in Congress the power of disposition and of making all needful rules and regulations. That power is subject to no limitations.'

         See also Alabama v. Texas, 347 U.S. 272, 274, 74 S.Ct. 481, 98 L.Ed. 689 (1954).

          Congress may delegate the power to manage federal lands to the Executive. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336-338, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). With respect to the national forests, Congress has authorized the Secretary of Agriculture 'to regulate their occupany and use.' Organic Administration Act, 16 U.S.C. § 551. With respect to national parks, Congress has authorized the Secretary of the Interior 'to promote and regulate the use' of such parks, to 'grant privileges, leases, and permits for the use of land' in the parks, and to cooperate with the Secretary of Agriculture in administering contiguous national forests. Organic Act of the National Park Service, 16 U.S.C. § 1 et seq.

         The Secretaries purport to act pursuant to these basic sources of authority, together with supplemental legislative support.

         (1) Standing

          Appellants have raised the threshold question as to whether appellee has sufficient legal standing to bring this action. There is no dispute that Sierra Club is a legally organized and existing corporation. If an interest of such a corporate person, entitled to legal protection, is damaged or denied, that corporation is entitled to redress in the courts.

         'The only problems about standing should be what interests deserve protection against injury, and what should be enough to constitute an injury.' 1

         Simply stated but difficult to apply, standing has been called 'one of the most amorphous concepts in the entire domain of the public law.' 2

         The basic concept of standing was summarized in Associated Industries v. Ickes, 134 F.2d 694, 700 (2d...

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