Sierra Club v. Hickel

(307 F.Supp. 685) (N.D. Cal. 1969)

Preliminary injunction granted restraining defendant federal officials from issuing "term" and "revocable" special use permits necessary for the construction of a private ski resort on over 1,000 acres of the Sequoia National Game Refuge and the Sequoia National Park, which are in and around Mineral King Valley. "Term" permits under 16 U.S.C. § 497 are limited to 80 acres and 30 years. "Revocable" permits, never expressly authorized by Congress, appear here to have exceeded Forest Service regulations. Permission for access highway through Park appears to exceed Interior's authority. Plaintiff's standing affirmed. Ninth Circuit decision reversing district court appears at 1 ELR 20015.

Counsel for Sierra Club:
Leo E. Borregard
Leland R. Selna, Jr.
Mathew P. Mitchell
Feldman, Waldman & Kline
2700 Russ Building
San Francisco, California 94104
(415) 981-1300

Counsel for Walter Hickel:
Thomas L. McKevitt Department of Justice
Washington, D.C. 20530
(202) 737-8200, ext. 2710

David Lindgren General Counsel's Office
Department of the Interior
Washington, D.C.
(202) 343-4506, ext. 4506

[1 ELR 20011]

SWEIGERT, J.

The Forest Service, Department of Agriculture intends to issue certain permits to Walt Disney Productions, Inc., a private corporation, for the construction and maintenance of a private hotel-resort, winter-summer complex in the Sequoia National Forest known as Mineral King.

The permits will cover in excess of 1,000 acres of land and, according to plaintiff, will ultimately affect as much as 13,000 acres. It is estimated that the project will involve as high as 35 million dollars of private investment.

Mineral King, since 1926, has been, not only a national forest under the jurisdiction of the Forest Service, Department of Agriculture, but also a national game refuge by special designation of the Congress (26 Stat. Chap. 744).

The permits are to be issued as soon as construction contracts are executed by the State of California for the construction of a substantial segment of a proposed public highway through the adjoining Sequoia National Park which is under the jurisdiction of the National Park Service, Department of the Interior.

The National Park Service intends to issue to the Division of Highways, State of California, a permit for the construction of a new all-weather, high-speed highway, estimated to accommodate 1200 vehicles per hour each way, through the Sequoia National Park as the most economically feasible means of providing motorist highway connectionbetween the California highway system and the proposed Mineral King hotel-resort project which is located, not within the national park, but in the adjoining national forest game refuge.

The case is presently before the court on plaintiff's application for a preliminary injunction restraining the defendant federal agencies from issuing the permits in question.

The Forest Service Permits for the Resort-Hotel Project

The permits about to be issued by the Forest Service will, in effect, enable the Developer to construct and maintain a winter-summer, hotel-resort project which, including its "elbow room" for related facilities, will comprise admittedly over 1,000 acres and, as claimed by petitioner, may affect 13,000 acres of forest-game refuge land.

This is to be accomplished by the device of using two kinds of permits: (1) a 30 year-80 acre "term" permit for "most of the major facilities," and (2) a separate so-called "revocable" permit covering an additional 1,000 acres for "other major facilities, e.g., ski lifts, towers, refuse and sewer disposal, parking areas and roads" for use in conjunction with the resort covered by the 30 year-80 acre term permit.

Title 16 U.S.C. § 497 provides, as far as applicable here, that the Secretary of Agriculture is authorized "to permit the use and occupancy of suitable areas of land within the national forest, not exceeding 80 acres, and for periods not exceeding 30 years, for the purpose of constructing or maintaining hotels, resorts or other structures or facilities necessary or desirable for recreation, public convenience and safety." (emphasis added)

The section makes similar provision for industrial and commercial purposes related to or consistent with other national forest uses; also similar provisions for state agency public uses; also similar provision for summer homes and stores, except that in this latter case the acreage limitation is 5 acres.

The legislative history of Section 497, first adopted in 1915, amended in 1948 and broadened to its present form in 1956, indicates quite clearly that, although its purpose has been to grant the Secretary of Agriculture power to issue term permits for certain kinds of specified uses, its purpose has been also, and equally important, to restrict term permits for those uses timewise, i.e., 30 years for any use, and areawise to 5 acres for summer homes and stores, and (since 1956) 80 acres for the uses specified in the kind of usage here involved, i.e., hotels, resorts and other structures or facilities necessary or desirable for recreation, public convenience or safety.

It is also clear from the legislative history that the 80 acre limitation on hotels and resorts was intended to include, not only the resort or hotel, itself, but also any and all structures or facilities related to it, e.g., "elbow room" for ski lifts and other related service facilities. See, 1948 U.S. Code Cong. & Ad. News, pp. 1337-1338; 1956 U.S. Code Cong. & Ad. News, pp. 3334-3336.^*

It is also clear from the legislative history that in 1948 Congress refused to broaden (except for Alaska), the preexisting 5 acre limitation for any permit for any purpose and did not, in fact, enlarge the acreage provision from 5 to 80 acres with respect to resort-hotel use of forest land in the United States until 1956 upon the representation that the requirements of commerce, industry, recreation and public use of space in the national forests had substantially changed. (See, 1958 U.S. Code Cong. & Ad. News, p. 3336).

It is also clear from the legislative history that in 1956 the Secretary represented to the Congress that his authority to issue "revocable" permits was adequate only "for uses for which long term tenure is unnecessary [1 ELR 20012] or undesirable." (U.S. Code Cong. & Ad. News, p. 3636).

The question arises whether this dual permit device is intended to circumvent the clear 80 acre limitation of Section 497 and thereby accomplish what would be in effect a violation of the section.

It will be noted that Section 497, which imposes the 80 acre limitation, does not differentiate between different kinds of permits. It broadly refers to any "permit" for the specified uses.

So far as so-called "revocable" permits are concerned, Congress has never expressly authorized them. Agriculture claims authorization for them only under its general power to so regulate the forest lands as "to preserve the forests thereon from destruction" (16 U.S.C. § 551) and under an Attorney General's Opinion of 1928. (35 Op. A.G. 485 [11/27/28]).

That opinion, while recognizing an implied power to issue them, narrowly restrict their use to situations in which such a permit is (1) made expressly revocable at will by its terms, and (2) the permitted structures are capable of being removed in case of revocation, and (3) the permitted use will not permanently damage or destroy the land for government use, and (4) the permitted use will be of direct benefit to the United States.

It is questionable whether the so-called "revocable" permits to be used by Agriculture in the present case meet the strict standards prescribed by the Attorney General.

In the first place they are not by their terms expressly made terminable "at will." Clause 15 merely provides that "This permit may be terminated upon breach of any of the conditions herein or at the discretion of the Regional Forester or the Chief of the Forest Service." (emphasis added)

Any such revocation is made subject to administrative appeal under Agriculture's own regulations. (36 CFR 211.20-211.119). Also, the Forest Service Manual (FSM 2711.2-5; 10/68), while stating that these permits are "generally for use of short duration," adds that "They will be limited to the time actually needed for exercising the use privileges."

These provisions strongly suggest to the Developer that the so-called "revocable" permit is not really revocable "at will" and that any discretionary revocation thereof must be reasonable in the light of all the circumstances, including the time actually needed for exercising the use privileges covered thereby — use privileges which in the present case are so coupled with the 30 year term permit that the time actually needed for exercising them would obviously be at least 30 years.

Clause 11 provides that "Upon abandonment, termination or revocation or cancellation of this permit the permittee shall remove within a reasonable time all structures and improvements . . . and shall restore the site unless otherwise agreed upon in writing or in this permit. . . ." There is no requirement that the structures shall in fact be capable of such removal or that the use will not be in fact such as to permanently destroy or damage the land for government use.

Further, the uses granted to the Developer by the two purportedly separate permits admittedly relate to a single, unified project and are obviously interlocked and interrelated.

It is inconceivable that Agriculture would, or could under the terms of the "revocable" permit and the circumstances of its issuance, suddenly and "at will" require the Developer to remove ski lifts, towers, refuse and sewage disposal, parking areas and roads covered by that permit and thus effectively destroy the 35 million dollar investment made by the Developer under his 30 year-80 acre term permit.

The very opinion of the Attorney General relied on by Agriculture warns of just such a possible danger to the public interest in granting revocable permits, saying: "In cases where it appears that the permittee intends to make substantial improvements the removal of which would cause him a great loss in case of revocation of the permit, it is a matter of departmental policy whether a situation should be created by the issue of a permit which may afterwards embarrass the head of the department in the exercise of the powers of revocation."

For the foregoing reasons we conclude that the proposal of Agriculture in the pending case, if carried out, may involve a violation not only of the letter, but also the purpose and intent of Section 497 so far as its 80 acre limitation is concerned.

To hold otherwise would be to assume that the Congress when enacting and amending this acreage limitation, contemplated that it could be circumvented, even nullified, by the device of coupling two different kinds of permits for a single, unified, private hotel-resort development, occupying more than 1,000 acres of a forest game refuge area. If Congress had any such situation in mind, it could have spared itself time and trouble by omitting any area limitation — or by otherwise indicating its intent. Certainly Congress could not have been so naive as to think that "revocable" permits, issued under such circumstances, would really be revocable,

National Park Service — Permit for the Highway

Interior proposes to issue to the Division of Highways, State of California, a permit for the construction of a highway through the National Park to connect the California Highway system with the Mineral King development, which is located, not within the Park, but outside of it in the national forest game refuge area.

Interior is entrusted with administration of the national park system by such means and measures as conform to [1 ELR 20013] the fundamental purpose of said parks, i.e., to conserve the scenery and the natural and historic objects and wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations (16 U.S.C. § 1) and, specifically, as to Sequoia National Park, for the preservation from injury of all timber, mineral deposits, natural curiosities and wonders and their retention in their natural condition. 16 U.S.C. § 43.

There can be no doubt that Interior has the power to construct and improve roads and trails in the national parks (16 U.S.C. § 8) and that, the wide discretion of Interior in that respect should not ordinarily be interfered with.

It appears, however, that in May, 1968, Interior adopted certain Park Road Standards providing that park roads are not continuations of state and federal highway network; that they should not be designed to serve as connecting links for routing motorists through the parks to reach ultimate destinations or simply as a connecting device to link points of interest and, further, that a professional ecological determination must precede approval of road construction and design to make sure that resulting effects on wildlife, drainage, stream flow and climate will be minimal.

Plaintiffs also cite a 1962 House Committee Report of the Congressional Committee of Interior and Insular Affairs (dealing with the Padre Island National Seashore) stating that construction therein of a through highway for general public convenience would give that project a function which does not belong to it and that such a roadway might spoil its very purpose.

In the present case the record shows that the proposed highway, so far as it will cut through Sequoia National Park, is designed and intended, not as an adjunct to the National Park, itself, but as a connecting link to route motorists through the Park to reach an ultimate destination outside the Park — the proposed, private Mineral King resort-hotel complex in the adjoining forest game refuge area.

Thus, the question arises whether the particular highway here in question is fairly within the power of Interior as interpreted by its own standards.

National Park Service — The Transmission Line

It further appears from the record that Interior proposes to permit construction of a 66,000 volt power line across the National Park in order to enable the Developer to obtain necessary electric power for the project.

Title 16 U.S.C. § 45(c), which applies specifically to Sequoia National Park, provides that no permit for transmission lines or for the transmission of power within the Park limits shall be granted or made without specific authority of Congress.

Interior contends that this statute was intended to apply only to the construction and development of hydroelectro projects within the Park and does not preclude him from granting rights-of-way across park lands for transmission lines under the general power granted Interior by Title 16 U.S.C. § 5 to grant rights-of-way across public lands of the United States for electrical poles and lines for the transmission of electric power, provided that such right-of-way shall be allowed within or through any national park only upon approval of the chief officer of the department and upon a finding that the same is not incompatible with the public interest.

It will be noted, however, that this latter section is a general statute while Section 45(c), deals specifically with Sequoia National Park and, without making any distinction between electric projects within or without the Park, clearly provides that, so far as that Park is concerned, there shall be no permit for any transmission line or for the transmission of power within the Park limits without specific Congressional authority.

Thus, there arises the further question concerning the power of Interior to permit the transmission line — absent specific authority from Congress.

Failure to Hold Public Hearings

Plaintiff contends that no public hearings were ever held by either the Forestry Service with respect to the Mineral King Development or by Interior with respect to the highway or transmission line.

It appears from the record that in March, 1953, Congressman Hagan conducted a hearing at Visalia to determine what could be done to expedite development of Mineral King. There is, however, no record of any public hearing called or conducted by either the Forestry Service or by Interior.

Whether Forestry Service was required by law to hold such hearings is not clear.

As to Interior, however, plaintiffs contend that it has violated its own rule (34 Fed. Reg. 19 [1/29/69]), calling for both corridor and design public hearings with respect to any major road project that would have a substantial social, economic or environmental effect.

Plaintiff contends that a purported "revocation" of that rule by the new Secretary on April 26, 1969 (34 Fed. Reg. 6985)¹ was ineffective because there was no compliance by the Secretary with the Administrative Procedure Act (5 U.S.C. § 553(b)(c)), providing for publication of general notice of proposed rule making in the Federal Register (553(b)) and opportunity for interested persons to participate in the rule making (553(c)).

"Rule making" is defined by the Administrative Procedure [1 ELR 20014] Act (5 U.S.C. § 551(5)) to include, not only the formulation or amendment of rules, but also the "repealing" of rules.

Interior contends that the requirements of 5 U.S.C. § 553(b)(c) are not applicable to rule making on "a matter relating to agency management or personnel or to public property, loans, grants, benefits or contracts" (see, Sec. 553(a)(2)), or to "interpretive rules, general statements of policy or rules of agency organization, procedure or practice." (See, Sec. 553(b)(a)).

Thus, there is presented the further question whether repeal, without general notice, of the pre-existing rule calling for public hearing concerning major road projects having substantial, social, economic or environmental effects, is a mere rule of procedure, practice or policy and, if not, whether Interior was required by its own rule to conduct public hearings on the highway in question.

Plaintiff's Standing to Sue

Defendants contend that plaintiffs have no standing to sue because they have nothing more than a general interest in common with all citizens and cannot show that any private, substantive legally protected interest of theirs is being directly invaded within the meaning of such cases as Associated v. Ickes, 134 F.2d 694 (C.A. 2d 1943); Anti-Facist v. McGrath, 341 U.S. 123, 140-41, 151-52 (1951); Perkins v. Lukins, 310 U.S. 113, 125 (1940); Associated v. Camp, 406 F.2d 837, 838 (8th Cir. 1969).

We are of the opinion, however, that plaintiff, Sierra Club, a non-profit California corporation, organized and existing for the purposes described in its complaint (Par. 3), may be held to be sufficiently aggrieved to have standing as a plaintiff herein. See, Scenic v. FPC, 354 F.2d 619 (2d Cir. 1965); United Church v. FCC, 359 F.2d 994 (D.C. 1966); Road League v. Boyd, 270 F. Supp. 650, 661 (N.Y. 1968); Powelton v. HUD, 284 F. Supp. 809, 825-828 (Pa. 1968).

Propriety of Preliminary Injunction

Defendants rest largely on the argument that there is no such urgency as would justify a preliminary injunction at this time.

It appears from the record that the National Park Service permit for construction of the highway by the State of California is ready for issuance at any time and, when issued, will authorize the State of California to proceed at any time thereafter with highway construction.

Affidavits presented on behalf of defendants indicate that the State of California will not actually be in a position to take bids for the highway construction until May 1, 1970 and that actual highway construction can not actually begin until July 1, 1970.

It appears, however, that as soon as Interior grants the highway permit, the State of California, which is not a party to this action and, therefore, not amenable to orders of this court, will be in a position to control the time within which highway construction contracts will be let and thus in effect determine the time when Agriculture must issue its permits to the Developer for construction of the Mineral King project.

In view of the possibility that Interior may issue the highway permit at any time, thereby substantially changing the existing situation and setting events in motion, plaintiff should not be left to "watchful waiting" upon the State of California. We find, therefore, that there is a sufficient showing of imminent and irreparable injury to require pendente lite relief.

Conclusion

It is true that the scope of judicial review over officials to whom Congress has entrusted the control and management of public lands is a particularly narrow one in which there is, perhaps, less reason for interference with administrative discretion than in any other kind of administrative action. Ickes v. Underwood, 141 F.2d 546, 548 (C.A. D.C. 1944).

Nevertheless, we find that plaintiff has raised questions, concerning possible excess of statutory authority, sufficiently substantial and serious to justify a preliminary injunction against both Agriculture and Interior pending trial of these issues on the merits or the further order of this court.

It is beside the point to argue, as do defendants, that a preliminary injunction in this case would interfere with progress by raising doubts about the validity of similar arrangements made with respect to 84 other recreation areas, including 5 in California.

This court is not concerned with the controversy between so-called progressives and so-called conservationists. Our only function is to make sure that administrative action, even when taken in the name of progress, conforms to the letter and intent of the law as laid down by Congress and which only the Congress can change whenever it finds such change to be in the public interest.

Plaintiffs' motion for preliminary injunction is granted.

Dated: July 23rd, 1969.

W. T. Sweigert, United States District Judge

Filed July 23, 1969, Clerk, U.S. Dist. Court, San Francisco.

* See Defendants' Responding Brief of 7/14/69, attachment No. 1 at p. 3, Letter of 8/5/55, Acting Secretary of Agriculture to Chairman, Senate Committee on Agriculture and Forestry.

1. A press release of April 26, 1969 states that the reason for this purported revocation was to provide even broader public review and comment — not just on road building, but on all phases of the national park system.