Appendix I

Sierra Club vs. Morton involved federal approval of the extensive ski development in the Mineral King Valley in the Sequoia National Forest. In this suit Justice William O. Douglas dissented from the majority and wrote what may come to be regarded in later years as the first major effort in the history of American jurisprudence to incorporate a contemporary understanding of nature into law. Douglas’ effort to redefine man’s relationship with nature by recognizing the standing of a particular feature of nature to sue is a fascinating review of the many nonhuman entities that have been recognized in law for commercial and criminal purposes. It would have, or at least should have, according to Justice Douglas, been a natural step to come full circle and vest in the lands and rivers themselves a legal power to be represented in the courts of the land. Douglas’ opinion is reproduced in full below:

MR. JUSTICE DOUGLAS, dissenting.

I share the views of my Brother Blackmun and would reverse the judgment below.

The critical question of “standing” would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. See Stone, “Should Trees Have Standing?” 45 Southern California Law Revision 450 (1972). This suit would therefore be fore properly labeled as Mineral King vs. Morton.

Inanimate objects are sometimes parties in litigation. A ship has a legal personality, a fiction found useful by maritime purposes. The corporation soul—a creature of ecclesiastical law—is an acceptable adversary and large fortunes ride on its cases. The ordinary corporation is a “person” for purposes of the adjudicatory process, whether it represents proprietary, spiritual, esthetic, or charitable causes.

So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life. The river, for example, is the living symbol of all the life it sustains or nourishes—fish, aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water—whether it be a fisherman, a canoeist, a zoologist, or a logger—must be able to speak for the values which the river represents and which are threatened with destruction.

I do not know Mineral King. I have never seen it nor travelled it, though I have seen articles describing its proposed “development,” notably Hano, “Protectionists vs. Recreationists—The Battle of Mineral King,” New York Times Magazine, Aug. 17, 1969, and Browning, “Mickey Mouse in the Mountains,” Harper’s, March 1972, p. 65. The Sierra Club in its complaint alleges that, “One of the principal purposes of the Sierra Club is to protect and conserve the national resources of the Sierra Nevada Mountains.” The District Court held that this uncontested allegation made the Sierra Club “sufficiently aggrieved” to have “standing” to sue on behalf of Mineral King.

Mineral King is doubtless like other wonders of the Sierra Nevada such as Tuolumne Meadows and the John Muir Trail. Those who hike it, fish it, hunt it, camp in it, or frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be a few or many. Those who have that intimate relation with the inanimate object about to be injured, polluted, or otherwise despoiled are its legitimate spokesmen.

The Solicitor General, whose views on this subject are in the Appendix to this opinion, takes a wholly different approach. He considers the problem in terms of “government by the Judiciary.” With all respect, the problem is to make certain that the inanimate objects, which are the very core of America’s beauty, have spokesmen before they are destroyed. It is, of course, true that most of them are under the control of a federal or state agency. The standards given those agencies are usually expressed in terms of the “public interest.” Yet, “public interest” has so many differing shades of meaning as to be quite meaningless on the environmental front. Congress accordingly has adopted ecological standards in the National Environmental Policy Act of 1969, Pub. L. 91–90, 83 Stat. 852, 42 U.S.C. s 4321, et seq., and guidelines for agency action have been provided by the Council on Environmental Quality of which Russell E. Train is Chairman. See 36 Fed Reg. 7724.

Yet the pressures on agencies for favorable action one way or the other are enormous. The suggestion that Congress is too remote to give meaningful direction, and its machinery is too ponderous to use very often. The federal agencies of which I speak are not venal or corrupt. But they are notoriously under the control of powerful interests who manipulate them through advisory committees, or friendly working relations, or who have that natural affinity with the agency which in time develops between the regulator and the regulated. As early as 1894, Attorney General Olney predicted that regulatory agencies might become “industry-minded,” as illustrated by his forecast concerning the Interstate Commerce Commission:

The Commission is or can be made of great use to the railroads. It satisfies the public clamor for supervision of the railroads, at the same time that supervision is almost entirely nominal. Moreover, the older the Commission gets to be, the more likely it is to take a business and railroad view of things. (M. Josephson, The Politicos 526 (1938).)

Years later a court of appeals observed, “The recurring question which has plagued public regulation of industry (is) whether the regulatory agency is unduly oriented toward the interests of the industry. It is designed to regulate, rather than the public interest it is supposed to protect.”

The Forest Service—one of the federal agencies behind the scheme to despoil Mineral King—has been notorious for its alignment with lumber companies, although its mandate from Congress directs it to consider the various aspects of multiple use in its supervision of the national forests.

The voice of the inanimate object, therefore, should not be stilled. That does not mean that the judiciary takes over the managerial functions from the federal agency. It merely means that before these priceless bits of Americana (such as a valley, an alpine meadow, a river, or a lake) are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment, the voice of the existing beneficiaries of these environmental wonders should be heard.

Perhaps they will not win. Perhaps the bulldozers of “progress” will plow under all the esthetic wonders of this beautiful land. That is not the present question. The sole question is, who has standing to be heard?

Those who hike the Appalachian Trail into Sunfish Pond, New Jersey, and camp or sleep there, or run the Allagash in Maine, or climb the Guadalupes in West Texas, or who canoe and portage the Quetico Superior in Minnesota, certainly should have standing to defend those natural wonders before courts or agencies, though they live 3,000 miles away. Those who merely are caught up in environmental news or propaganda and flock to defend these waters or areas may be treated differently. That is why these environmental issues should be tended by the inanimate object itself. Then there will be assurances that all of the forms of life which it represents will stand before the court—the pileated woodpecker as well as the coyote and bear, the lemmings as well as the rout in the streams. Those inarticulate members of the ecological group cannot speak. But those people who have so frequented the place as to know its values and wonders will be able to speak for the entire ecological community.

Ecology reflects the land ethic; and Aldo Leopold wrote in A Sand County Almanac 204 (1949), “The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively, the land.”

That, as I see it, is the issue of “standing” in the present case and controversy.