Natural Arch and Bridge Society v. Alston, Civil No. 2:00-C-0191J.

• Citation: 209 F.Supp.2d 1207
• Decision Date: 05 April 2002
• Docket Number: Civil No. 2:00-C-0191J.
• Parties: NATURAL ARCH AND BRIDGE SOCIETY, a Colorado non-profit corporation; Robert Moore; David Brandt-Ericson; Harvey Leake; Evelyn Johnson; and Earl DeWaal, individuals, Plaintiffs, v. Joseph F. ALSTON, Superintendent, Rainbow Bridge National Monument; Robert G. Stanton, Director of the National Park Service; and the National Park Service, Defendants.
• Court: U.S. District Court — District of Utah

Page 1207

209 F.Supp.2d 1207

NATURAL ARCH AND BRIDGE SOCIETY, a Colorado non-profit corporation; Robert Moore; David Brandt-Ericson; Harvey Leake; Evelyn Johnson; and Earl DeWaal, individuals, Plaintiffs, v. Joseph F. ALSTON, Superintendent, Rainbow Bridge National Monument; Robert G. Stanton, Director of the National Park Service; and the National Park Service, Defendants.

Civil No. 2:00-C-0191J.

United States District Court, D. Utah, Central Division.

April 5, 2002.

COPYRIGHT MATERIAL OMITTED

Hal J. Pos, Parsons Behle & Latimer, Salt Lake City, UT, William David Thode, William Perry Pendley, Mountain State Legal Foundation, Lakewood, CO, for plaintiffs.

Carlie Christensen, U.S. Attorney's Office, Salt Lake City, UT, James J. DuBois, U.S. Dept. of Justice, Denver, CO, for defendants.

MEMORANDUM OPINION & ORDER (CORRECTED TEXT)

JENKINS, Senior District Judge.

I. Introduction

On March 3, 2000, the plaintiffs filed a complaint asking this court to declare that portions of the National Park Service's 1993 General Management Plan ("1993 GMP") violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fifth Amendment to the United States Constitution. The plaintiffs also sought injunctive relief to prevent the defendants from enforcing the allegedly unconstitutional portions of the 1993 GMP. On February 14, 2001, the defendants filed a motion to dismiss and on February 15, 2001, the plaintiffs filed a motion for summary judgment.¹ On April 30, 2001, the court heard oral argument on the parties' motions. William Davis Thode from Mountain States Legal Defense Fund appeared on behalf of the plaintiffs and Carlie Christensen, James J. Dubois, and Kevin Jones appeared on behalf of the defendants. Having reviewed and considered the motion, memoranda and exhibits submitted by the parties, and having heard and considered counsel's arguments concerning the same, the court hereby rules as follows:

II. Background

A. Rainbow Bridge National Monument

Rainbow Bridge is a unique natural resource of national and international significance. (R. at 0087.) Located in the rugged canyon country of Southern Utah, it is the world's largest natural bridge, spanning 275 feet, arching to a height of 290 feet, and is 42 feet thick at the top and 33 feet wide at the narrowest point. (R. at 0006.) Made up of Kayenta sandstone and Navajo sandstone, stream erosion caused the bridge's formation by cutting through a tight meander in an upper layer of Navajo sandstone. (R. at 0087-88.) Because of the unique interplay between stream erosion and Navajo sandstone, bridges are less common than arches in Rainbow Bridge's surrounding environment. (R. at 0087.) Its remote location, together with the rugged environment of the area, left the bridge unpublicized until it was reached by the Douglass-Cummings Party on August 14, 1909.² (R. at 0011.)

Although not officially publicized until 1909, the significance of Rainbow Bridge to Native Americans can be traced back for over a century. (R. at 0033.) A variety of Native American tribes, such as Navajo, Hopi, San Juan Paiute, and others, view Rainbow Bridge and other nearby features and sites as important to their spiritual beliefs and identity as a people. (R. at 2064.) In 1909, for example, it was noted that the Navajo guide, Dogeye-begay, rode around the end of the bridge because he did not know the prayer to insure his safe return should he pass beneath it. (R. at 0033.) Similar observations were noted by other parties who utilized Navajo guides to reach the bridge. To many Navajos, Rainbow Bridge is a sacred place.³ (Id.) As such, they believe that it should be respected by all humans. (Id.)

To Navajos, the form of the rainbow is a symbol of protection and danger past. (R. at 0033-34.) Rainbow Bridge appears to be associated with the Navajo sun deity and his rainbow path across the sky and with the Hero Twins, one of whom was fathered by the sun. (R. at 0034.) One historian explains:

The Navajo have a tradition that long, long ago one of their hero gods, hunting in the canyon, was suddenly entrapped by a rush of flood waters. In this predicament, with escape cut off, death for the hunter seemed certain. But just then the great Sky Father cast a rainbow before the torrent, the hero god climbed to safety across the arch, and the latter was turned to stone and has so remained until this very day.

(Id.) (quoting Judd Neil, The Discovery of Rainbow Bridge, National Parks Bulletin, Vol. 9, No. 54, November 1927). Known in the Navajo tongue as Tsi-Na-Ne-Ah (meaning arch rock or rock bridge), Navajos consider Rainbow Bridge to be the most significant of natural bridges in the area due to its relationship and western proximity to Navajo Mountain. (R. at 0169.) Traditional Navajo ceremonies and rites are private and passed on from generation to generation. (Id.)

Other Native American tribes, including San Juan Paiute, Hopi, and Pueblo, were also said to have accorded special significance to Rainbow Bridge. One Hopi migration legend, while not specifically mentioning Rainbow Bridge, places certain clan ancestors near Navajo Mountain. (Id.) The legend tells of a rainbow which swung around until its end touched Navajo Mountain where the Snake Clan people were dropped. (Id.) In prehistoric times, Pueblo Indians constructed a primitive structure at the base of Rainbow Bridge which some say may have served as an altar. (Id.) It was a main object of interest until it passed out of existence in the early 1930s. (Id.)

After its formal discovery in 1909, the bridge's uniqueness was recognized by President William H. Taft who on May 30, 1910, issued Presidential Proclamation Number 1043, setting aside a 160 acre tract of land under the authority granted him by section 2 of the 1906 Act for the Preservation of American Antiquities, 16 U.S.C. § 431 (2000), for scientific and historical purposes. (R. at 0087.) President Taft's Proclamation read, in part,

WHEREAS, an extraordinary natural bridge, having an arch which is in form and appearance much like a rainbow, and which . . . is of great scientific interest as an example of eccentric stream erosion, and it appears that the public interest would be promoted by reserving this bridge as a National Monument, together with as much land as may be needed for its protection;

Now therefore, I . . . do hereby set aside as the Rainbow Bridge National Monument, one surveyed tract of land, embracing said natural bridge, containing one hundred and sixty acres of land . . . .

(Id.) After 1910, the federal protection of Rainbow Bridge continued to evolve.

In 1916, Congress established the National Park System by enacting the National Park Service Organic Act, 16 U.S.C. § 1 et seq. (2000). The Organic Act established the National Park Service as the managing agency for national monuments, such as Rainbow Bridge. 16 U.S.C. § 1 (2000). Section 1 states that

The service thus established shall promote and regulate the use of the Federal areas known as national parks, monuments, and reservations hereinafter specified . . . by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

Id. Thus, visitors to the bridge are subject to the regulation of the National Park Service.

In 1958, pursuant to the Colorado River Storage Project, 43 U.S.C. § 620 (1994), Congress approved the construction of the Glen Canyon Dam, which is fifty-eight miles below Rainbow Bridge National Monument. Badoni v. Higginson, 638 F.2d 172, 175 (10th Cir.1980). Upon its completion in 1963, the dam formed the Glen Canyon Reservoir, also known as Lake Powell. Id. The federal lands adjacent to Lake Powell, other than the monument, comprise the Glen Canyon National Recreational Area, 16 U.S.C. § 460dd (2000), and are administered by the National Park Service. Id. §§ 1, 460dd-3. A small portion of Lake Powell extends to the monument boundary in its northwest corner, thus forming a common boundary between Rainbow Bridge National Monument and Glen Canyon National Recreation Area. (R. at 0006.) Pursuant to 43 U.S.C. § 620 (1994), the Secretary of the Interior is required to "take adequate protective measures to preclude impairment of the Rainbow Bridge National Monument." Id.

Prior to the creation of Lake Powell, Rainbow Bridge, which is surrounded by the Navajo Reservation, was relatively isolated. (R. at 0006.) Its remoteness, coupled with the rugged environment,⁴ kept visitation numbers quite low. (R. at 32.) The lake provided boat access to the monument, increasing visitor use. In 1955, about 1,000 people visited Rainbow Bridge. (R. at 0038, 2063.) In 1974, only four years after Lake Powell had entered the 160-acre tract of the monument, Badoni, 638 F.2d at 175, 55,104 visitors came to Rainbow Bridge National Monument. (R. at 0014.) By 1986, approximately 65,000 visited the bridge just in the month of July — an average of 270 people at any one time over an eight-hour day. (R. at 0390.) In 1995, visitation peaked at approximately 346,000 visitors. (R. at 2878.) It was anticipated that if the increase in visitation continued, by 2000, visitation would approach 450,000. (R. at 0390.)

The adjacent Glen Canyon National Recreation Area is extremely popular, and its visitors often access the national monument. (R. at 0016.) The management needs and visitor-use patterns of the two areas are necessarily different due to the different policies and philosophies applicable to a national monument versus a national recreation area. (Id.) For instance, as previously noted, concerning Rainbow Bridge National Monument, the National Park Service is charged with "conserv[ing] the...