Breaking Down the Courthouse Door

In the mid-1960s, the Consolidated Edison company wanted to build a powerplant with a reservoir at Storm King Mountain on the Hudson River. An appeal was lodged with the Federal Power Commission, arguing that an organization known as the Scenic Hudson Preservation Conference should have the right to challenge the project on aesthetic grounds. The FPC agreed that the anti-power-plant partisans could participate. The matter wound up before a federal appeals court, and the objectors prevailed. The power plant was never built.

About the same time, the Forest Service announced that it was about to approve a proposal by Walt Disney—yes, that Walt Disney—to build a very large ski resort in the southern Sierra Nevada in California in a very small and remote valley called Mineral King.

The resort was totally out of scale—dozens of lifts, plus hotels, restaurants, parking lots, and all the trimmings in a small, fragile, high-altitude valley renowned for its avalanches. The Sierra Club objected. Other outdoors groups objected. They wrote letters to politicians. They published articles in newspapers and magazines. But when the Sierra Club decided to oppose the Disney ski resort, it was bucking very long odds. The state's governor (Ronald Reagan) favored the project, as did the state legislature, the state highway commission, the state's major newspapers, President Johnson, local congressmen, and both California senators. It looked hopeless. Hopeless, that is, until a group of us on the Sierra Club legal committee suggested that maybe, just maybe, with the Storm King decision in mind, we could persuade a federal judge to consider the club's opposition even though the organization had no financial interest in the project or Mineral King.

We—Fred Fisher, Phil Berry, and I—were too busy with our own legal practices to take on what might prove to be a major case. We prevailed upon a talented San Francisco lawyer named Lee Selna, who agreed to take the case at a sharply reduced rate. The Sierra Club board, after sober consideration, decided to take the plunge.

Selna filed suit in June of 1969 against the Forest Service, which was the manager of Mineral King valley. A second defendant was the National Park Service, which would allow an access road to be built across an arm of Sequoia National Park, which surrounded Mineral King on three sides.

Selna wrote that because the Sierra Club existed partly to protect places like Mineral King it should have the right to bring a case to court. He further argued that the proposed ski development was illegal in at least three respects.

The Justice Department, representing the two agencies, replied that the argument that the proposal was illegal was wrong and, more fundamentally, that the Sierra Club had no "standing" to bring the case to court in the first place.

Judge William Sweigert, who presided over the case, agreed with the Sierra Club and issued an injunction: No work on the project could be done until the legal issues were thrashed out in a trial.

The government then made a tactical decision. Rather than slug it out in the district court, it asked the Court of Appeals to decide whether the club had standing. That court studied briefs the lawyers submitted, heard oral arguments, and then said no, the Sierra Club does not have standing, never mind the merits of its case. (The appeals court judges didn't think much of the merits either.)

So Selna and the club took the major step of asking the Supreme Court to review the matter. The Storm King case had not gone to the highest court, so a great deal was riding on the Mineral King appeal.

First, they had to persuade the Supreme Court to hear the case, and that court turns away at least 90 percent of the cases brought before it. The Supreme Court took the case. Selna argued that because the Sierra Club was in the business of protecting national parks and other beautiful public places it should have the right to go to court. The government argued that since the club had not claimed there would be any injury to itself or its members from the resort it had no business in the federal court.

The Supreme Court thought it over, then found that, as the legal papers had been written, the club had not proved standing. But it dropped a huge hint: In a footnote, the court more or less invited the club to amend its complaint to include allegations of injury to itself and its members—interference with backcountry trips, damage to recreational opportunities, and so on—and try again. Justice William O. Douglas, in a celebrated dissent, argued that Mineral King itself ought to be the plaintiff in the case, with its own interest represented by the Sierra Club or another friend.

So successful was the Mineral King case that two years after it was filed, Fisher, Berry, and I, along with a handful of colleagues and with a major boost from the Ford Foundation, established the Sierra Club Legal Defense Fund to enlist the courts and the legal profession in the fight to save the earth. Federal defendants still sometimes challenge plaintiffs' standing to bring cases to court, but that sort of challenge rarely succeeds.