Mineral King

by Tom Turner

At the southern end of the Sierra Nevada a tall, rugged ridge juts southwest — the Great Western Divide. To its east is the canyon of the Kern River, to the west lie the headwaters of the East Fork of the Kaweah. The valley drained by the creeks that join to form the East Fork is known as Mineral King.

Mineral King comes by its name through a bit of wishful thinking. In 1873, a Tulare County farmer named James A. Crabtree discovered a deposit of silver ore and rushed to town to file a claim. He recruited four men to return to the valley; they filed more claims and formulated bylaws for what they dubbed the "Mineral King Mining District." Silver fever swept through Porterville, the county seat, and then rolled north through the valley.

The entire enterprise went bust by 1882. The miners abandoned the valley and nature was left to reclaim it, to dismantle the cabins, fill in the shafts, and oxidize the trams and culverts and smelters and mills. Soon flowers and grasses and trees began to appear on bare, abandoned slopes.

Little is left now to evoke short Mineral King's boom-town history, but what remained in 1890 was enough to keep the valley from being included in Sequoia National Park, created that year to protect the groves of giant sequoias at somewhat lower altitudes. In 1893, at the urging of John Muir and the year-old Sierra Club, President Benjamin Harrison proclaimed a vast Sierra Forest Preserve that encompassed most of the western slope of the Sierra — 6,400 square miles — in order to control the grazing, logging, and prospecting that were already playing havoc with the mountains. A dozen years later, the Forest Service was formed, and in 1908 the unwieldy Sierra Forest Preserve (by then renamed Sierra National Forest) was divided into three parts. Mineral King now resided in Sequoia National Forest.

When Sequoia National Park was enlarged in 1926 — to approximately twice its original size — Mineral King was again left out. (The valley was added to the Sequoia National Game Refuge, managed to protect wildlife and habitat.)

Mineral King valley encompasses approximately 15,000 acres. It is a U-shaped valley, forested on its lower slopes. It harbors bald eagles, peregrine falcons, pine martens, wolverines, and spotted owls. It is well within the historic range of the California condor.

People often visited Mineral King in the summer. Visitation in winter, however, was rare, because of heavy snows that usually fill the valley from October through May. The old miners' wagon route into Mineral King snakes its way about 25 miles from the town of Hammond up the East Fork canyon. Only the most ambitious of cross-country skiers visited the valley after October, joined in later years by infrequent tracked-vehicle riders and snowmobilers.

The hardy souls who did ski into Mineral King, however, reported a spectacular spot for skiing: high bowls that border the valley on three sides, deep powder snow, spectacular views. Skiing, following the Great Depression, was beginning to catch on in California.

After World War II, the Sierra Club decided to explore the Sierra in search of areas suitable for development as ski resorts. In 1947 David Browerand Richard Felter surveyed the range for the club. They determined that remote Mineral King was the best possible site for a new resort in the southern Sierra.

In mid-1949, the Forest Service issued a prospectus calling for bids "from individuals or firms who can show ability to develop and operate a resort and ski facility at Mineral King." The prospectus called for a hotel accommodating at least 100 people, a mile-long chairlift, a 2,100-foot T-bar lift, and other features including "over-the-snow" transportation from Three Rivers to the valley — a tracked vehicle of some sort. The Forest Service received not one bid in response to its prospectus.

In 1961, a young geologist from Bakersfield happened upon an intriguing rumor. Hiking in the basin over the Fourth of July weekend, he fell into conversation with a ranger who said he had heard that Walt Disney was planning a ski resort for the valley, with access to be provided by a monorail. Disney, an avid fan of downhill skiing, had visited Mineral King in the 1950s, and had quietly asked the Forest Service if it was still interested in entertaining development proposals for Mineral King.

The answer, though just as quiet, must have been yes. Over the next several years, Disney secretly began to buy property in and near the valley.

In February 1965 the Forest Service made it official. It published another prospectus, describing a resort with overnight accommodations for at least 100 people, trams or chairlifts capable of serving 2,000 people an hour, parking for 1,200 automobiles, sanitary and safety structures, and so forth. It was looking for a company or individual that would invest at least $3 million in the resort in addition to upgrading the access road to all-weather standards.

The Sierra Club took a look at the new prospectus and, after a rather rancorous year of internal argument, pronounced itself opposed to the project. It asked the Forest Service to convene public hearings on the matter.

The Forest Service replied that there had been a public hearing on the matter, a dozen years earlier. It was evident that the Forest Service had made up its mind to find a developer for Mineral King.

The state of California got into the act, eliminating for a time one of the more difficult unresolved issues: who would pay the estimated $30 million to upgrade the road. On July 16, the state legislature incorporated the existing road into the state highway system.

On August 31, 1965, the Forest Service announced that it had received six bids for development of Mineral King, two of which were considered the leading candidates. One was from Beverly Hills film producer Robert Brandt. The other was from Walt Disney.

Agriculture Secretary Orville Freeman wrested the decision-making power from local Forest Service officials and appointed a committee to advise him. In December, Freeman announced that the Disney proposal had been accepted.

The Disney plan was decidedly ambitious. Where the Forest Service had called for an investment of $3 million, Disney planned to spend $35 million and proposed to build as many as twenty-seven chairlifts. The entire valley would be clogged with trams and lifts, ski jumps, sled runs, chalets and snack bars. Check dams up to twenty feet tall would be built on major creeks to keep debris from washing down to the valley floor. A notation that particularly disturbed conservationists read in part, "Considerable slope preparation [dynamite] will be required in the forested portions because of large boulders in some areas above an elevation of 8,000 feet."

Disney proposed two hotels and a dormitory to accommodate 3,000 overnight guests and a thousand employees, ten restaurants and snack bars, a gas station, a theater, a chapel, a skating rink, and a ten-story underground garage for 3,600 cars. The Forest Service issued a formal three-year planning permit to Disney on October 10, 1966. Two months later, Walt Disney died.

For the ski resort to become reality, the access road had to be widened, straightened, and paved to accommodate something over a thousand cars per hour. Eight miles of the road crossed Sequoia National Park.

When the Forest Service issued the planning permit to the Disney concern, the Park Service had not given permission for improvement of the road segment through the park. There was a matter of principle involved — allowing the building of roads through national parks simply to get to the other side was generally forbidden — and the new road would threaten hundreds of giant sequoias.

Interior Secretary Stewart Udall was cool to the whole idea of developing the valley. It was his belief that Mineral King should be part of the national park, and that it was no place for a giant commercial development. Udall stonewalled the Forest Service and the state for more than a year, but he was fighting a losing battle. On December 26, 1967, the Bureau of the Budget announced that the state would get its right of way through Sequoia National Park.

On December 14, 1968, the Board of Directors of the Sierra Club authorized the filing of a lawsuit to prevent the development of Mineral King. Michael McCloskey, the Sierra Club's conservation director, approached attorney Robert Jasperson and asked him to see if the Mineral King project might be attacked through litigation.

Jasperson and another lawyer, Greg Archbald, suggested that the project was illegal in at least three respects. First, there were Forest Service regulations in force that limited the size and duration of leases the agency was allowed to give to private concerns: thirty-year leases could cover no more than eighty acres.

A second possible "cause of action" would be against the Park Service, whose regulations require that roads in national parks be simple, narrow, and built solely for the convenience of visitors to the park. Roads are not to be allowed if they are meant only to convey people from one side of a park to the other. The Mineral King road surely fit that description.

Finally, a major resort development was clearly incompatible with the purposes of a national game refuge, set aside explicitly to provide protection and sanctuary for deer and other creatures that might not mingle well with upwards of 14,000 people a day.

Attorneys Fred Fisher and Don Harris studied the Mineral King report and determined that it contained the seeds of a worthwhile lawsuit. They enlisted the services of the firm Feldman, Waldman & Kline, which had offices across the street from the Sierra Club. Leo Borregard, Matthew Mitchell and Leland J. Selna set to building the case. Selna took the lead.

Richard Nixon took the oath of office on January 20, and the next day the Forest Service announced its formal approval of the Disney master plan. On February 24, an avalanche thundered down a slope into the valley, flattening several buildings and killing a Disney employee within a few yards of the spot where Disney planned to build its alpine village. On April 21, Walter Hickel of Alaska, who replaced Udall as Secretary of the Interior, revoked Udall's January 18 road rules. Formal granting of the right-of-way was though to be imminent.

Lee Selna filed suit in the US District Court for the Northern District of California in San Francisco on June 5, 1969. The case was assigned to Judge William T. Sweigert, a protégé and political ally of Earl Warren, former governor of California and later Chief Justice of the Untied States. Sweigert had no record in environmental matters, though he was known as something of a maverick, having once ruled that the Vietnam War was unconstitutional.

Selna asked the court to issue an injunction that would block the Forest Service and Park Service from allowing any work on the resort or the road realignment to commence until the merits of the Club's case could be determined by a trial. Selna argued that an injunction was necessary because if work were allowed to begin, any damage incurred would be irreparable. The case, however, was never to be tried on its merits; what would occupy the courts and the lawyers for many months to come was the critical issue of standing to sue.

In its brief to the trial court, the Sierra Club had argued that it should be granted standing simply because its very purpose for existence was the preservation of the Sierra Nevada. "If the Sierra Club may not be heard," the plaintiff asked rhetorically, "then who speaks for the future generations for whose benefit Congress intended the fragile Sierra bowls and valleys to be preserved?"

Nowhere did the Club claim that its interest as an organization or the interests of its members would be harmed by the Mineral King development. The Club was trying for a far broader affirmation of standing - that it had a right to bring suit to defend public lands simply because one of its principal purposes as an organization was precisely to defend public lands.

Judge Sweigert thought the Club had a strong case. On July 23, 1969, he issued a preliminary injunction halting all further work on the project, pending trial.

The injunction forced the Forest Service, and the Justice Department defending it, to make a strategic choice. Should they continue to fight the case before Judge Sweigert, who considered the Sierra Club's objections to the development sound, and then appeal an adverse decision? Or should they go straight to the Court of Appeals - through a device known as an interlocutory appeal - and ask that court to overrule Judge Sweigert on the procedural question of the Sierra Club's standing to bring the case in the first place?

The defendants chose the latter course. On December 29, 1969, they challenged the plaintiff's standing before the Ninth Circuit Court of Appeals in San Francisco, asking the court to lift the injunction and allow the project to go forward.

On September 17, the Court of Appeals, by a vote of two to one, overruled Judge Sweigert and dissolved the injunction.

The court found that the Sierra Club had not claimed a substantial enough interest in the dispute to warrant its bringing the case at all — in other words, it had no standing to sue. The Court then rejected all the Sierra Club's legal arguments — against the size and duration of the leases, against the road right-of-way, against the misuse of a game refuge.

Fortunately for the Sierra Club, however, the Court of Appeals had not been asked to review the merits of the case but only whether the Sierra Club had standing and whether the injunction issued by Judge Sweigert was proper. The Club immediately announced that it would ask the U.S. Supreme Court to review the decision of the Court of Appeals, and on October 6 the Appeals Court agreed to leave the injunction in place until the Supreme Court could be heard from. The high court announced on February 22, 1971, that it would review the case.

Oral arguments were scheduled and then postponed. Justices Hugo L. Black and John M. Harlan had retired from the Court at the end of its term in the spring of 1971, and both seats remained open when the court reconvened in the fall of that year. On November 17, the court sat to hear the arguments in the Mineral King case.

In his opening argument, Lee Selna tried to establish the Club's right to standing. "As an incident of the Club's interest in the area, some of its members use Mineral King," he said.

"Does the record show that?" asked Justice Blackmun, who was sympathetic to the Club's position.

"The record contains a letter which is written by a member of the Board of Directors of the Sierra Club, in which he in turn refers to his trips to Mineral King," Selna replied.

"But there isn't any direct testimony by members of the Club anywhere in the record, is there?" Blackmun continued.

"Direct testimony concerning their use, Mr. Justice Blackmun? No there is not."

Justice Potter Stewart was skeptical. "I was just wondering how far your argument would go. I'm reminded of these so-called clubs that get chartered airplane flights across the Atlantic Ocean, these ad hoc organizations. Could I form a club, Friends of Walt Disney Productions, and come in on the other side as a party?" Selna thought not.

Chief Justice Burger wanted to know if John Muir could be a party to the case as an individual. Selna thought he could.

Justice Blackmun tried again to help. "If an organization like the Sierra Club is not qualified to bring litigation of this kind, who would be?"

"Nobody," Selna answered.

Erwin N. Griswold, Solicitor of the United States, represented the government. He called the case "the ultimate case on standing. If the petitioner here has standing, then I believe it's fair to conclude that anyone who asserts an interest in a controversy has standing."

In his rebuttal, Selna insisted that finding in favor of the Sierra Club would not open those floodgates. "It should be clear from our argument that we do not urge that the doors of the courts be opened wide to anyone. We've argued that there are criteria that should be applied by a court, by which organizations' or individuals' qualifications for standing should be tested.

"The Club in this case did, in fact, allege its special interest in the area involved, and no one in California, at the District Court level, had any question in their mind as to the deep involvement of the Club with Sequoia National Park and Mineral King."

At 1:15 p.m. Chief Justice Burger gaveled the hearing to a close.

Christopher D. Stone, a law professor at the University of Southern California, had followed the case with interest, and he wanted to add a twist he had been working out for some time. Whereas one could argue about whether the Sierra Club or its members would be "injured" by the defiling of Mineral King, no one could deny that the valley itself would be injured. Why not, then provide legal standing to natural objects themselves?

As it happened, the Spring 1972 issue of the University of Southern California Law Review was to carry a special symposium on law and technology, for which Supreme Court Justice William O. Douglas had agreed to write a preface. Stone persuaded the editor to make room for a last minute article. A draft of the article "Should Trees Have Standing?" was sent to Justice Douglas in late October or early November.

The Supreme Court issued its ruling in Sierra Club v. Morton on April 19, 1972.

By a vote of four to three (Burger, Stewart, Marshall, and White in the majority; Blackmun, Brennan, and Douglas in the minority) the Court sustained the Court of Appeals, dissolved the injunction, and ruled that the Sierra Club did not have standing to sue. The Court majority simply felt that the Club had tried to reach just a little too far, that its claim to standing was a bit too broad. The Club had failed to allege that it or its members would be injured by the development of Mineral King. "Nowhere in the pleadings or affidavits," Justice Stewart wrote, "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 of the respondents."

Stewart then dropped the broadest possible hint, 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."

It was a massive victory, disguised as a defeat. The press reflected the confusion. "Sierra Club Loses on Mineral King" said the headline in the San Francisco Examiner. "A heavy blow said the New York Times. "A temporary defeat," thought the Wall Street Journal. "Mineral King Setback for Sierra Club" headlined the San Francisco Chronicle. But Time, which had a few days to think it over, called the decision "an important victory" for conservationists.

On June 2, the Sierra Club, represented now by Jim Moorman and the Sierra Club Legal Defense Fund, marched back into Judge Sweigert's courtroom and asked for permission to amend its suit. The revised complaint had several new features. It described in considerable detail the Sierra Club's interests in Mineral King and how those interests would be injured by the Disney project. To be safe, it added as plaintiffs nine individuals who visited Mineral King frequently, plus the Mineral King District Association, a group whose members owned property in and near the valley.

And, in what proved to be the coup de grâce, it added a new claim under the National Environmental Policy Act, which had been enacted after the original suit was filed. The Act orders federal agencies to prepare an environmental impact statement (EIS) for "major federal actions significantly affecting the quality of the human environment." Moorman asked the court to order the government to prepare such a statement on the resort.

The government's challenge to the Club's standing had been a tactical success and a strategic disaster. If the government had declined to challenge the Club's standing, Judge Sweigert's likely ruling in the Club's favor on the merits of the case would almost certainly have been reversed by the Court of Appeals, and there would very likely be a ski resort in Mineral King valley today.

The political battle over Mineral King was to drag on for several years, but the legal campaign was all but over. Lawyers for the Legal Defense Fund prepared to go to trial, questioned Forest Service and Park Service employees, and counseled Club members and others who were participating in the EIS-writing process.

The draft EIS was issued on January 3, 1975. 4400 individuals, 14 federal agencies, six state agencies, seven local government agencies, and 35 private organizations filed comments on the draft, many of them scathing. The California Department of Fish and Game worried about the impact of the resort on wildlife. The Interior Department retained reservations about the impact on Sequoia National Park. Public comments were overwhelmingly anti-resort.

By 1975 Mineral King was one of the most prominent national environmental issues. The Forest Service was still firmly committed to the project, but the Disney organization was growing weary of the fight and uneasy as public opposition to the resort steadily grew.

And there was still the matter of the road. Disney had always insisted that it would not pay the cost of improving the road to all-weather standards. In August 1972 the state of California rescinded its pledge to pay for it. In signing the bill that took the access road out of the state highway system, Governor Reagan insisted that he still supported the resort, but that it was improper for the state to pay for highway improvements.

The final environmental impact statement was released by the Forest Service in February 1976. Despite the reduced size of the project, the price tag remained at roughly $35 million, which raised questions about how Disney expected to turn a profit with just over half of the customers it had originally anticipated. A visit to the alpine Disneyland was looking like a rather expensive outing.

In October 1978, as part of a monumental national parks acquisition and expansion bill guided through Congress by Representative Phillip Burton of San Francisco, Mineral King was added to Sequoia National Park, where it belonged from the start.

Tom Turner is an acclaimed environmental writer. This article is adapted from his book Wild By Law, published by Sierra Club Books.