Who Will Speak For the Trees: A Modern Day Lorax?
“I am the Lorax. I speak for the trees. I speak for the trees for the trees have no tongues.” — Dr. Seuss, The Lorax
Mineral King Valley is an idyllic mountain valley tucked away in a remote corner of Sequoia National Park. Getting there requires driving 25 miles up a narrow, winding road through the Sierra Nevada mountains, gaining nearly 7,000 feet of elevation by the time the road peters out into a backcountry trailhead surrounded by rustic campsites and a handful of primitive cabins. Those who make the trek are rewarded with open meadows, conifer forests, alpine lakes, an abundance of wildlife, and snowcapped peaks.
It wasn’t always this way.
After silver was discovered in the valley in 1872, more than 3,000 miners swarmed in to stake claims and establish mines. The wagon trail up to the valley was started that year, but the coming of winter forced the builders to halt six miles short of their goal — today, the hamlet of Silver City on the road to Mineral King is the remnants of their winter camp. By 1879, the valley was home to six large hotels; thirteen saloons and an equal number of restaurants; three lumber mills; butcher shops; assay offices; a barber shop, livery stable, shoemaker, stampmill, and blacksmith; more than 600 houses; and numerous mining camps. That year, destruction caused by multiple avalanches and declining returns led the miners to begin to abandon the valley. Within three years, Mineral King was a virtual ghost town.
The Forest Service was put in control of Mineral King in 1905 and included it in Sequoia National Forest. Congress declared the valley to be part of the Sequoia Game Refugee in 1926, however it was intentionally excluded from the adjacent Sequoia National Park to permit future development of the valley. Instead, the Forest Service looked for ways to turn it into an income-producing asset. With little enthusiasm for significant mining or logging in Mineral King, federal administrators turned to the next best thing: commercial development. But the valley was a significant distance from any major population centers and served by a single unpaved road that was only passable in the summer. Though there were a handful of tourist lodges in the valley, these small-scale operations didn’t live up to the Forest Service’s big dreams for Mineral King.
Proposals to develop Mineral King into a ski resort were first floated in 1949, but it wasn’t until 1965 that the Forest Service finally found a developer with ambition that matched its own. That year, Disney announced plans to turn the pristine valley into an “American Alpine Wonderland” megaresort, complete with a thousand-room hotel, ten restaurants (including a 150 seat café on the top of a ridge overlooking the valley floor), twenty-two lifts, multiple pools and ice rinks, a golf course, and a heliport. A ten-story, 3,600-car parking garage would be provided to serve two million overnight and day guests per year. The resort was planned to be operational by 1976.
The Sierra Club, which had previously supported the development of Mineral King Valley, reversed its stance and sued to block Disney’s proposed resort. Relying on the Second Circuit’s decision in Scenic Hudson Preservation Conference v. Federal Power Commission which held that an environmental organization had standing to bring a lawsuit based on its “special interest in aesthetic, conservational, and recreational” impact of a project, Federal District Judge William Thomas Sweigert found that the Sierra Club had demonstrated that it had sufficient interest in the preservation of Mineral King Valley and issued a preliminary injunction stopping Disney from proceeding with construction. The Court of Appeals for the Ninth Circuit reversed Judge Sweigert’s decision, setting up a Supreme Court showdown.
Sierra Club v. Morton would be argued before the Court on November 17, 1971. Leland Selna Jr. represented the Sierra Club, while Erwin Griswold, the Solicitor General, personally appeared to argue for the United States. In a split 4–3 opinion (Associate Justices Lewis Powell Jr. and William Rehnquist joined the Court after oral arguments and did not participate), the Court held that the Sierra Club did not have standing to sue because it had failed to show that any of its members would be harmed by Disney’s proposed resort.
Though superficially a victory for Disney and those who wanted to develop new projects on federal lands, in a footnote, the Court remarked how the Sierra Club could easily amend its suit to overcome this deficiency and have the case reconsidered on its merits.
Almost before the pro-resort faction could savor this victory, however, a new obstacle to development arose when the California State Assembly voted to remove the proposed new road to Mineral King from the state highway system. In June, the Sierra Club filed an amended suit, and in August the State Senate joined the Assembly in pulling back the state commitment for highway access funding to the mountain valley. Public opposition to Mineral King development had begun to increase as the Sierra Club carried its campaign against the project to a population in the midst of an environmental awakening unparalleled in American history. [National Park Service]
On November 10, 1978, nearly seven years to the day that the case to determine the fate of Mineral King Valley was argued before the Supreme Court, President Jimmy Carter signed into law an expansion of Sequoia National Park to include the valley and permanently prohibiting the building of any downhill skiing facilities in the area.
Though Morton was a technical victory for Disney and those who wanted to develop public lands, Justice William Douglas’ dissenting opinion has become famous for arguing that the natural environment itself should have standing to bring a lawsuit “for their own preservation.”
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. [Sierra Club V. Morton, 405 U.S. 727 (1972) (J. Douglas dissenting)]
The idea of granting judicial standing to inanimate objects is not as radical as it might first seem. Corporations, organizations, trusts, and governments have a long history of being able to engage in civil litigation. Sea vessels can be named as parties to a lawsuit under maritime law and estates can sue on behalf of the deceased. In rem cases, though rare, where the defendant is an object rather than a person, continue to be permissible in federal court in certain circumstances. If 43 gallons of whiskey, James Joyce’s novel Ulysses, a 1958 Plymouth Sedan, $124,700 in cash, 15 cats, and a dinosaur fossil have all been named parties in lawsuits, is it unimaginable to think that the Grand Canyon, Denali, and the Colorado River should have the right to sue (and be sued) as well.
The application of granting standing for the natural world would be relatively straightforward. Numerous environmental organizations already litigate to force compliance with federal laws such as the Endangered Species Act. Though these are currently styled Defenders of Wildlife v. U.S. Fish and Wildlife Service, Natural Resource Defense Council v. Department of Interior, or Yurok Tribe v. U.S. Bureau of Reclamation, it would not be revolutionary for these same suits to have been titled The Gray Wolf v. U.S. Fish and Wildlife Service, Migratory Birds v. Department of Interior, or Klamath River v. U.S. Bureau of Reclamation. Courts already routinely appoint guardian ad litems to individuals unable to protect their legal interests due to age or incompetence. Expanding this practice to cover the environment would allow the Giant Sequoia or the Monk Seal to also enjoy competent legal representation.
The idea of granting natural objects legal standing is not new. It was first proposed by University of South California Professor Christopher Stone in a 1972 law review article. In 2006, Tamaqua Borough, Pennsylvania was the first place to officially protect the “rights of nature.” Today, Ecuador, New Zealand, Uganda, India, Colombia, and Bangladesh have allowed suits brought by natural objects in certain situations. The city of Seattle recently settled a case recognizing the legal rights of salmon to pass through dams. In March, Panama enacted a law granting sea turtles the legal right to live in a pollution-free environment.
To be sure, problems with the natural rights movement would take time to iron out. Determining who can speak for the environment is not always a simple question. Ecuador has seen cases where both the government and farmers claim to be appearing on behalf of nature in litigation. Additionally, what is best for nature is also not always clear. A solar project may reduce global warming but disrupt a local habitat area. Introducing a predator may improve biodiversity, but harm prey species. Moreover, some major environmental challenges — like global warming — might not be justiciable on a national level, that is to say, no one court or country has the ability to resolve it. New construction, already subject to complex permitting requirements and environmental review, would likely take longer and be even more expensive if it needed to contend with lawsuits brought on behalf of nature (though these projects already face lawsuits brought on behalf of environmental advocacy organizations litigating in their own name).
Save for a small gravel parking lot and a few off-grid cabins, Mineral King Valley remains untouched by modern development. No gondolas whisk powderhounds to the top of wide groomers, no midmountain bars serve afternoon après-ski, no lodges offer jacuzzies to rejuvenate sore muscles after a long day on the slopes. The scars ounce left by surface mining have long since disappeared, leaving the valley environmentally intact. Other places have not been so lucky. From the flooding of Glen Canyon, to the logging of California’s redwoods, to the strip mining of the Appalachian mountains, the constant drumbeat of development has taken its toll. Though the position laid out by Justice Douglas in his Morton dissent will probably never be adopted by the Supreme Court, it offers an intriguing thought about what litigation would look like if natural places had a legal Lorax who could speak for them in court.
Nicholas Monck is a graduate of the University of Colorado Law School. He also received an Energy, Environmental, and Natural Resources Law and Policy Certificate and a Graduate Renewable Energy Certificate from the University of Colorado. He has previously written about urban planning in the University of Colorado Law Review. Opinions expressed are his own and do not represent the views of his employer.
