Badoni v. Higginson, C-74-275.
| Decision Date | 30 December 1977 |
| Docket Number | No. C-74-275.,C-74-275. |
| Citation | 455 F. Supp. 641 |
| Parties | Lamarr BADONI, Teddy Holiday, Betty Holiday, Jessie Yazzie Black, Jimmy Goodman, Begay Bitsinnie, Shonto Chapter of the Navajo Nation, Navajo Mountain Chapter of the Navajo Nation, and Inscription House Chapter of the Navajo Nation, Plaintiffs, v. R. Keith HIGGINSON, Commissioner, Bureau of Reclamation; Ronald H. Walker, Director, National Park Service; Cecil V. Andrus, Secretary of the Interior, Defendants, and State of Utah, Central Utah Water Conservancy District, Colorado River Water Conservation District, Southwestern Water Conservation District, and State of Colorado, Defendants in Intervention. |
| Court | U.S. District Court — District of Utah |
Eric P. Swenson, Mexican Hat, Utah, Richard W. Hughes, Window Rock, Ariz., Robert L. Miller, Tuba City, Ariz., for plaintiffs.
Ronald L. Rencher, U.S. Atty., and Brent D. Ward, Asst. U.S. Atty., Salt Lake City, Utah, for United States defendants.
Edward W. Clyde, Richard L. Dewsnup, and Dallin W. Jensen, Asst. Atty. Gen., Salt Lake City, Utah, for defendants in intervention State of Utah and Central Utah Water Conservancy Dist.
Kenneth Balcomb, Glenwood Springs, Colo., for defendant in intervention Colorado River Water Conservation Dist.
Andrew R. Hurley, Salt Lake City, Utah, Resident Atty., for defendants Colorado River Water Conservation Dist. and The Southwestern Water Conservation Dist.
Clyde O. Martz and Raphael J. Moses, Sp. Asst. Attys. Gen., Denver, Colo., for defendant in intervention State of Colo.
Frank E. Maynes, Durango, Colo., for defendant in intervention The Southwestern Water Conservation Dist.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
The instant action was commenced on September 3, 1974, by eight individual Navajo Indians and by three Navajo "Chapters." The Navajo "Chapters" are local organizations of the Navajo Nation, each consisting of all the adult members of its respective communities. One of the original eight individual plaintiffs has died, and one has been dismissed from the action. Three of the individual plaintiffs are qualified and recognized among their people as medicine men — i. e., religious leaders of considerable stature among the Navajo, learned in Navajo history, mythology and culture, and practitioners of traditional rites and ceremonies of ancient origin. The remaining three individuals are enrolled members of the Navajo Tribe of Indians and reside in the general area of Rainbow Bridge National Monument in Southern Utah.
The original party defendants are various officials within the United States Department of the Interior. On February 26, 1975, this court granted the motions of the Colorado River Water Conservation District, the Southwestern Water Conservation District, the State of Colorado, the State of Utah, and the Central Utah Water Conservancy District to intervene as defendants.
In their amended complaint, plaintiffs state that under certain operating criteria promulgated by defendant Andrus or his predecessor, the waters of Lake Powell are encroaching upon the Rainbow Bridge National Monument, and that defendants Higginson and Walker have licensed several persons and corporations to operate tour boats on Lake Powell, several of which make daily trips to Rainbow Bridge, and have in other ways facilitated the development of tourism in the Monument area. Against this background, plaintiffs assert three claims for relief: First, that the flooding of the Rainbow Bridge National Monument has resulted in the destruction and desecration of many Navajo gods and sacred areas in the vicinity and has thereby violated plaintiffs' right to the free and uninhibited exercise of their religious beliefs and practices, as guaranteed by the First Amendment; second, that defendants have violated and are violating section 1 of the Colorado River Storage Project Act which provides that defendants ". . . shall take adequate protective measures to preclude impairment of Rainbow Bridge National Monument", and third, that defendants' operation of the Glen Canyon Dam and Reservoir is a continuing major federal action that significantly affects the quality of the human environment, within the meaning of the National Environmental Policy Act (NEPA) and that defendants have not filed the required environmental impact statement concerning their actions. To remedy the situation, plaintiffs ask that this court issue a permanent injunction against defendants, ordering them to take actions to preclude the impairment of the Rainbow Bridge National Monument and the surrounding Glen Canyon National Recreation Area and plaintiffs' interest therein, and to cease further major actions with respect to the operation of the dam and reservoir until the required environmental impact statement is completed.
On various grounds that are discussed below, the following defendants filed properly supported motions for summary judgment: On February 25, 1977, defendant-intervenors State of Utah and Central Utah Water Conservancy District; and on February 28, 1977, the original federal defendants and defendant-intervenors Colorado River Water Conservation District and Southwestern Water Conservation District. On February 28, 1977, defendant-intervenor State of Colorado filed alternative motions under Rule 12(c) and Rule 12(d), Federal Rules of Civil Procedure. Because matters outside the pleadings have been presented to and not excluded by the court, the court will treat the State of Colorado's Rule 12(c) motion for judgment on the pleadings as one for summary judgment. On May 23, 1977, plaintiffs filed a memorandum in opposition to the various motions of defendants and intervenors. The matter was argued before the court at length on September 19, 1977. Having fully and carefully considered the matters presented by way of written memorandum and oral argument in the light most favorable to plaintiffs, the court deems itself fully advised, and concludes that federal jurisdiction is properly invoked under 28 U.S.C. § 1331 and that the respective motions for summary judgment must be granted. The three claims of plaintiffs and the reasons for their failure are discussed in the order in which they were presented to the court.
The factual backdrop of plaintiffs' First Amendment claim is developed in plaintiffs' amended complaint and memorandum in opposition to the motions for summary judgment. Essentially, it is claimed that certain geological formations in the Rainbow Bridge area have held positions of central importance in the religion of the Navajo people of the Navajo Mountain area for at least 100 years. These shrines, which are regarded as the actual incarnate forms of Navajo gods, have performed protective and rain-giving functions for generations of Navajo singers. Ceremonies have been performed in Bridge Canyon near Rainbow Bridge, and water from the springs there has been used for other ceremonies. Plaintiffs allege that the flooding of Bridge Canyon in the vicinity of Rainbow Bridge and the greatly increased tourist traffic due to defendants' actions have resulted in the following specific infringements upon plaintiffs' First Amendment rights: the destruction of holy sites; the drowning of entities recognized as gods by the plaintiffs; prevention of plaintiffs from performing religious ceremonies; desecration of holy sites, especially abodes of gods of the plaintiffs, by tourists; and, by virtue of all of this, injury to the efficacy of plaintiffs' religious prayers, and entreaties to their remaining gods. Plaintiffs stress that the result of this sacrilege has been, and will continue to be, severe emotional and spiritual distress for plaintiffs and Navajo people generally, all of which is violative of plaintiffs' rights to the free exercise of their religious beliefs and practices. Plaintiffs request this court to order defendants to take appropriate steps to operate Glen Canyon Dam and Reservoir in such a manner that the important religious and cultural interests of plaintiffs will not be harmed or degraded, and to issue rules and regulations to prevent further destruction and desecration of the Rainbow Bridge area by tourists.
The First Amendment claims of plaintiffs constitute a unique challenge to the projects and actions of defendants and present to this court some rather novel questions of law. Nevertheless, it is the opinion of the court that plaintiffs' free exercise of religion claims must fail on two alternative grounds.
First, as defendants have pointed out, plaintiffs do not allege nor do they have any property interest in the Rainbow Bridge National Monument. It is undisputed that even though the various uses of the area have fluctuated over the years and the monument area is within the present boundaries of the Navajo Indian Reservation, the 160-acre monument has never actually been a part of the Navajo Reservation. The monument was created by Presidential Proclamation on May 30, 1910, by President William H. Taft in accordance with authority conferred upon him by the Act of June 8, 1906, 16 U.S.C. § 431. Since that time, none of the fluctuations of uses of the land purported to affect the monument, and the site has been held in federal ownership as a National Monument. It is part of the National Park System administered by the National Park Service. Any aboriginal proprietary interest that the Navajos may have held in this land would have been extinguished by the entry of the white man in earlier years. See Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 339, 65 S.Ct. 690, 89 L.Ed. 985 (1945). Because plaintiffs have no property interest in the land that is the subject of this action, defendants argue that plaintiffs' First Amendment claim ". . . does not come within a country mile of any cognizable legal theory upon which relief can be granted." The court feels that the lack of a...
To continue reading
Request your trial
-
Badoni v. Higginson
...required under the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The trial court's order and opinion is reported at 455 F.Supp. 641 (D.Utah 1977). The Rainbow Bridge National Monument is a 160-acre tract of land in southern Utah, set aside by executive order for scientific and......
-
Sequoyah v. Tennessee Valley Authority
...when the opposing interests were balanced those of the defendants were found to outweigh those of the plaintiffs. Badoni v. Higginson, 455 F.Supp. 641 (D.C.Utah 1977), appeal pending, No. 78-1517 (10th The district court in the present case based its holding on the plaintiffs' lack of any p......
-
Condemning Worship: Religious Liberty Protections and Church Takings.
...religious observance (Frank), or plays the central role in their religious ceremonies and practices (Woody)."); Badoni v. Higginson, 455 F. Supp. 641, 646 (D. Utah 1977) ("Plaintiffs fail, however, to demonstrate in any manner a vital relationship of the [religious] practices in question wi......