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How The Earth Got A Lawyer

The forging of law and nature that saved Mineral King and created Earthjustice.

Photo: John Rasmussen.
Lying in dramatic isolation at the southern tip of the Sierra Nevada, Mineral King’s remoteness and sharp vertical landscape have prevented it from becoming as well-known as its drive-through neighbor to the north, Yosemite Valley. (Photo: John Rasmussen.)
Mineral King: The Foundation of Modern Environmental Law.

The narrow, meandering road to Mineral King Valley is closed for half of the year. From November to April, prodigious amounts of snow prevent passage over the former 19th-century wagon trail that leads out of California’s San Joaquin Valley and climbs into a realm of statuesque granite peaks and stunning glacial valleys. Lying in dramatic isolation at the southern tip of the Sierra Nevada, Mineral King’s remoteness and sharp vertical landscape have prevented it from becoming as well-known as its drive-through neighbor to the north, Yosemite Valley.

Yet, the isolation and quietude found at Mineral King were not always a given. For more than a decade during the last century, the prospect was very real that the area would be transformed into a massive ski resort playing host to thousands of daily visitors. If not for a few visionary attorneys and some dedicated environmentalists, the road to Mineral King would have been denied its wintery hibernation—Walt Disney would have paved paradise and put up a parking lot.

Faux Boomtowns and Ski Resorts

Inhabited solely by Native Americans for centuries, Mineral King remained unknown to the state’s hordes of new residents until the discovery of silver in the early 1870s. A bumpy road to the secluded valley was constructed in 1873 and a small mining community began to sprout. But the excitement was short-lived: the valley’s only smelter shut down in 1877 because separating silver from the ore proved exceedingly difficult and costly. Additionally, the threat of avalanche persisted throughout the winter and past avalanches had crushed cabins and killed men on several occasions. The local press touted the area’s mining potential for two decades more, but Mineral King would never live up to its prosperous name.

Post-WWII populations swelled in Southern California, bringing ski enthusiasts who could support a resort near Los Angeles. Mineral King, with its Alpen peaks and scooped bowls, quickly became a top prospect. The Forest Service agreed and began searching for a developer to build one of the most spectacular ski resorts on the West Coast.

Resisting a Magic Kingdom in the Mountains

The same snow that buried mining efforts attracted new visionaries in the 1950s—Sierra Club members who loved to ski, and the famed Walt Disney, who in 1956 the Club made an honorary life member in gratitude for his nature films. This show of good will would prove ironic just a decade later. Disney, himself an avid skier, had great interest in establishing a resort nearer Los Angeles, so when the Forest Service issued a prospectus in 1965 for a development at Mineral King, Disney responded in typically grand fashion. His company proposed a massive resort—six times the size of Squaw Valley—replete with underground parking lots, hotels, a complex of chair lifts, and 2 million annual visitors. The Sierra Club had originally supported the idea of a development at Mineral King, but now questioned the size and feasibility of Disney’s proposed project.

Sierra Club leadership wrote letters to the Forest Service asking for public hearings on the matter and navigated the political landscape in hopes of blocking the project. But in January 1969, the Forest Service gave Disney’s plan the green light. The Sierra Club had exhausted all avenues available for blocking the proposal, save one—the courts. At the time, environmental issues were rarely settled in courtrooms. In a bold move, the Club filed its first major lawsuit at the U.S. District Court of Northern California in San Francisco in June 1969.

A Question of Standing

A young attorney named Philip Berry, chairman of the Sierra Club’s Legal Committee, had reviewed the case along with a law school friend, Fred Fisher, and Fisher’s colleague Don Harris. The trio sought the services of the law firm Feldman, Waldman and Kline and attorney Leland J. Selna took the lead. In its brief to the trial court in 1969, the Sierra Club argued it should be granted legal standing (the right to sue) because the organization’s reason for existence was the preservation of the Sierra Nevada. The Club did not claim that the interests of the organization or its members would be harmed by the Mineral King development; rather, the Club was trying for a broad affirmation of standing based on its inherent mission and purpose.

The court issued an injunction halting work on the Mineral King project. In response, the Forest Service and Justice Department challenged the Sierra Club’s standing before the Ninth Circuit Court of Appeals in San Francisco. By a vote of two-to-one, the court dissolved the injunction. The court found that the Sierra Club had not shown it would be injured by the development and thus had no basis to sue. The Club appealed to the U.S. Supreme Court.

In 1971, Fisher and Harris secured a grant allowing them to form the Sierra Club Legal Defense Fund (later to be renamed Earthjustice). A well-respected young attorney from the progressive Center for Law and Social Policy, Jim Moorman, was selected as executive director, with Harris and Fisher serving as president and vice president, respectively. Moorman urged Selna to outline the specific injuries to the Sierra Club that would result from the Mineral King development. But Selna wasn’t convinced, and the Supreme Court issued a four-to-three decision against the Sierra Club in April 1972, ruling that the Club had overreached on the issue of standing. However, the decision contained within it the seed of a historic victory. As Justice Potter Stewart noted: “Nowhere … 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…” Then, Stewart hinted in one of the most famous footnotes in environmental jurisprudence: “Our decision does not, of course, bar the Sierra Club from seeking in the District Court to amend its complaint.”

And that is precisely what the Club did. Just two months later, the Sierra Club Legal Defense Fund amended its suit, adding nine plaintiffs who visited Mineral King often and would be injured by the development. The group also demanded that an environmental impact statement (EIS) be written, as the new National Environmental Policy Act required. As a result, the Sierra Club Legal Defense Fund secured standing for private citizens, confirming the public’s right to seek review of environmental disputes in courts of law.

By the time the Forest Service released the final EIS in 1976, Mineral King had become one of the most prominent national environmental issues. All major national environmental organizations endorsed adding the valley to Sequoia National Park and public sentiment had turned against the development. Troubled by the notoriety, Disney finally pulled out of the project.

In October 1978, Congress added Mineral King to Sequoia National Park. Finally, in March 2009, Congress placed the valley in the National Wilderness Preservation System, affording it permanent protection from development. This very first Earthjustice case exemplifies the kind of far-reaching, big-impact litigation that has become the organization’s hallmark. It ushered in the modern era of environmental law and preserved Mineral King’s majesty for future generations.