Sierra Club v. Morton/Dissent Blackmun

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Sierra Club v. Morton by Harry Blackmun
Dissenting Opinion
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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 [p756] 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 [p757] 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 405 U. S. 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, [p758] 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 [p759] 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 out-door 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 405 U.S. 738-739, other federal tribunals have [p760] 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]

Footnotes[edit]

  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).
  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.