Badoni v. Higginson
| Decision Date | 19 December 1980 |
| Docket Number | No. 78-1517,78-1517 |
| Citation | 638 F.2d 172 |
| Parties | , 11 Envtl. L. Rep. 20,204 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-Appellants, v. R. Keith HIGGINSON, Commissioner, Bureau of Reclamation; Ronald H. Walker, Director, National Park Service; Cecil V. Andrus, Secretary of the Interior, Defendants-Appellees, State of Utah; Central Utah Water Conservancy District; Colorado River Conservation District; Southwestern Water Conservation District; and State of Colorado, Defendants in Intervention-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard W. Hughes of Luebben, Hughes & Kelly, Albuquerque, N. M. (Eric P. Swenson, Mexican Hat, Utah, with him on brief), for plaintiffs-appellants.
Anne S. Almy, Atty., Dept. of Justice, Washington, D. C. (Anthony C. Liotta, Acting Asst. Atty. Gen., Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, and Robert L. Klarquist, Atty., Dept. of Justice, Washington, D. C., with her on brief), for defendants-appellees.
Dallin W. Jensen, Asst. Atty. Gen., State of Utah, Salt Lake City, Utah (Richard L. Dewsnup, Asst. Atty. Gen., State of Utah, and Edward W. Clyde, Salt Lake City, Utah, with him on brief, for appellees-in-intervention State of Utah and Central Utah Water Conservancy District.
Frank E. Maynes, Durango, Colo., and Andrew R. Hurley, Salt Lake City, Utah, for appellee-in-intervention Southwestern Water Conservation District.
Clyde O. Martz, Sp. Asst. Atty. Gen., State of Colorado, Denver, Colo., for appellee-in-intervention State of Colorado.
Kenneth Balcomb, Glenwood Springs, Colo., and Andrew R. Hurley, Salt Lake City, Utah, for appellee-in-intervention Colorado River Water Conservation District.
Before McWILLIAMS, BREITENSTEIN and LOGAN, Circuit Judges.
This is an appeal from an order granting summary judgment, which effectively denied relief to Indian plaintiffs making constitutional and statutory claims against federal officials. We are asked to determine whether the religion clauses of the First Amendment apply to the government's management of the Rainbow Bridge National Monument and the Glen Canyon Dam and Reservoir, and whether an environmental impact statement concerning operation of the Glen Canyon Dam and Reservoir is 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 historical purposes. 36 Stat. 2703 (1910). Within this parcel is Rainbow Bridge, a great sandstone arch 309 feet high with a span of 278 feet. The Monument, which is surrounded by the Navajo reservation, is administered by the National Park Service. Glen Canyon Dam, located on the Colorado River fifty-eight miles below the Monument, is a 710-foot high structure built pursuant to Congressional authorization. 1 See 43 U.S.C. § 620. Glen Canyon Reservoir, known as Lake Powell, formed behind the dam after its completion in 1963. By 1970 the lake had entered the 160-acre tract of the Monument and by 1977 the water had a peak depth of 20.9 feet directly under the Bridge. If the lake fills to its maximum capacity, the water apparently will be 46 feet deep under the Bridge.
Glen Canyon Dam and Lake Powell are operated by the Bureau of Reclamation under the direction of the Secretary of the Interior. 43 U.S.C. § 620. The federal lands adjacent to Lake Powell, other than the Monument, comprise the Glen Canyon National Recreation Area, see 16 U.S.C. § 460dd, and are administered by the National Park Service. See id. §§ 1, 460dd-3.
Prior to the creation of Lake Powell, Rainbow Bridge National Monument was isolated and was visited by few tourists. The lake now provides convenient access to the Monument. Boats licensed by the Commissioner of the Bureau of Reclamation and the Director of the National Park Service bring tourists to the Monument. Docking facilities have been constructed near the Bridge to serve tour boats and private boats. 2 Visitors to the Monument are subject to the regulation and control of the National Park Service. See 16 U.S.C. § 1 et seq.
The individual plaintiffs are Indians residing in the general area of Rainbow Bridge National Monument in southern Utah and are enrolled members of the Navajo Tribe. Three of these plaintiffs are recognized among their people as medicine men, "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." 455 F.Supp. at 642. Three plaintiffs are Navajo chapters, which are local organizations of the Navajo Nation each consisting of the adult members of its respective community.
In 1974 plaintiffs commenced this action for declaratory and injunctive relief against the Secretary of the Interior, the Commissioner of the Bureau of Reclamation and the Director of the National Park Service. 3 In their amended complaint plaintiffs asserted two claims for relief relevant to this appeal: First, that defendants' operation of Glen Canyon Dam and Reservoir and management of Rainbow Bridge National Monument violated plaintiffs' rights under the Free Exercise Clause of the First Amendment; second, that defendants are required by 42 U.S.C. § 4332(2)(C) to provide an environmental impact statement concerning the operation of Glen Canyon Dam and Reservoir and that the continuing operation of the Dam and Reservoir without such a statement violates 42 U.S.C. §§ 4331-35. After consideration of the pleadings, affidavits and discovery documents in the record, the trial court granted defendants' motions for summary judgment, from which this appeal was taken.
In essence, plaintiffs' free exercise claim is that government action has infringed the practice of their religion in two respects: (1) by impounding water to form Lake Powell, the government has drowned some of plaintiffs' gods and denied plaintiffs access to a prayer spot sacred to them; and (2) by allowing tourists to visit Rainbow Bridge, the government has permitted desecration of the sacred nature of the site and has denied plaintiffs' right to conduct religious ceremonies at the prayer spot.
The trial court gave two reasons for granting summary judgment against plaintiffs. First, the court ruled that plaintiffs do not have a cognizable free exercise claim because they have no property interest in the Monument. 455 F.Supp. at 644-45. In the alternative, it held that the federal government's interests in the Glen Canyon Dam and Reservoir as a major water and power project outweigh plaintiffs' religious interests in the Monument. 455 F.Supp. at 645-47. While we affirm the summary judgment in defendants' favor, our reasoning differs somewhat from that of the trial court.
At the outset, we reject the conclusion that plaintiffs' lack of property rights in the Monument is determinative. The government must manage its property in a manner that does not offend the Constitution. See Sequoyah v. TVA, 620 F.2d 1159, 1164 (6th Cir. 1980) (). We must look to the nature of the government action and the quality of plaintiffs' positions to determine whether they have stated a free exercise claim. See Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).
Analysis of a free exercise claim involves a two-step process. We first determine whether government action creates a burden on the exercise of plaintiffs' religion. "(I)t is necessary in a free exercise case to show the coercive effect of the enactment as it operates against ... the practice of (their) religion." School Dist. of Abington v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 1572, 10 L.Ed.2d 844 (1963). The practice allegedly infringed upon must be based on a system of belief that is religious, see, e. g., Wisconsin v. Yoder, 406 U.S. at 215-16, 92 S.Ct. at 1533; Kennedy v. Meacham, 540 F.2d 1057, 1060-61 (10th Cir. 1976), and sincerely held by the person asserting the infringement, see, e. g., United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed. 1148 (1944). If such a burden is found, the action is violative of the Free Exercise Clause, unless the government establishes an interest of "sufficient magnitude to override the interest claiming protection under the Free Exercise Clause." Wisconsin v. Yoder, 406 U.S. at 214, 92 S.Ct. at 1532. "(O)nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion." Id. at 215, 92 S.Ct. at 1533.
In reviewing a summary judgment, we view the facts and reasonable inferences drawn therefrom in the light most favorable to plaintiffs. The pertinent facts in this case are as follows. Rainbow Bridge and a nearby spring, prayer spot and cave have held positions of central importance in the religion of some Navajo people living in that area for at least 100 years. These shrines are regarded as the incarnate forms of Navajo gods, which provide protection and rain-giving functions. For generations Navajo singers have performed ceremonies near the Bridge and water from the spring has been used for other ceremonies. Plaintiffs believe that if humans alter the earth in the area of the Bridge, plaintiffs' prayers will not be heard by the gods and their ceremonies will be ineffective to prevent evil and disease. Because of the operation of the Dam and Lake Powell, the springs and prayer spot are under water. Tourists visiting the sacred area have...
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