                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                          MAR 23 2004
                         UNITED STATES COURT OF APPEALS

                                        TENTH CIRCUIT                 PATRICK FISHER
                                                                               Clerk


NATURAL ARCH AND BRIDGE
SOCIETY, a Colorado non-profit
corporation; DAVID BRANDT-
ERICSON, an individual; HARVEY
LEAKE, an individual; EVELYN
JOHNSON, an individual; EARL
DEWAAL, an individual; ROBERT
MOORE, an individual,

        Plaintiffs-Appellants,

v.                                                        No. 02-4099
                                                    (D.C. No. 2:00-CV-191-J)
JOSEPH F. ALSTON, Superintendent,                            (Utah)
Rainbow Bridge National Monument;
ROBERT G. STANTON, Director,
National Park Service; NATIONAL
PARK SERVICE, an agency of the U.S.
Department of the Interior,

        Defendants-Appellees.

------------------------------------------------

ASSOCIATION ON AMERICAN
INDIAN AFFAIRS, MEDICINE WHEEL
COALITION ON SACRED SITES OF
NORTH AMERICA, and NATIONAL
TRUST FOR HISTORIC
PRESERVATION,

        Amici Curiae.
                              ORDER AND JUDGMENT*


Before LUCERO, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’BRIEN,
Circuit Judge.



       By a complaint filed on March 3, 2000, the Natural Arch and Bridge Society, a

Colorado non-profit corporation; and David Brandt-Ericson, Harvey Leake, Evelyn

Johnson, Earl DeWaal, and Robert Moore, as individuals, brought suit in the United

States District Court for the District of Utah against Joseph F. Alston, the Superintendent

of the Rainbow Bridge National Monument, Robert G. Stanton, the Director of the

National Park Service, and the National Park Service (“Park Service”), an agency of the

U.S. Department of the Interior. The gist of the complaint was as follows:

                     This case concerns the management policies and
              practices of Defendant National Park Service (Park Service)
              that prevent visitors to the Rainbow Bridge National
              Monument (Rainbow Bridge or Monument) from approaching
              the rock span that is the central attraction of the Monument
              unless those visitors are Native Americans or are engaging in
              Native American religious ceremonies.

       The first cause of action was based on an alleged violation of the Establishment

Clause in the First Amendment of the United States Constitution. A second, and last,


       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

                                            -2-
cause of action was based on an alleged violation of “the Equal Protection component of

the Fifth Amendment of the United States Constitution.” Jurisdiction was based on 28

U.S.C. § 1331. On May 15, 2000, the defendants filed an answer to the complaint.

       After discovery by both sides, the plaintiffs filed a motion for summary judgment

and the defendants filed a motion to dismiss. The two motions were consolidated for

hearing. On April 5, 2002, the district court entered a memorandum opinion and order in

which it denied plaintiffs’ motion for summary judgment and granted defendants’ motion

to dismiss. Natural Arch and Bridge Society v. Alston, 209 F.Supp. 2d 1207 (D.Utah

2002). In line therewith, on April 9, 2002, the district court entered the following

judgment:

              IT IS ORDERED AND ADJUDGED

              that the claims of plaintiffs Moore, Brandt-Ericson, Leake,
              Johnson and National Arch and Bridge Society are dismissed
              for lack of standing; plaintiff DeWaal’s equal protection
              claim is dismissed for failure to state a claim upon which
              relief may be granted. Judgment is entered in the favor of the
              defendants on plaintiff DeWaal’s challenge to the 1993 GMP
              and Interpretive Prospectus under the Administrative
              Procedures Act. Plaintiff DeWaal’s claim of violation of the
              First Amendment by employees of the National Park Service
              is dismissed for failure to join the proper parties as
              defendants.

      On June 5, 2002, the plaintiffs, pursuant to 28 U.S.C. § 1291, filed a notice of

appeal from the district court’s judgment entered on April 9, 2002. On July 1, 2002, the

district court entered a second memorandum opinion and order, which it labeled as being a


                                            -3-
“Corrective Text.” That order was “entered nunc pro tunc to 5th of April, 2002.” Natural

Arch v. Alston, No. 2:00-C-0191J, at #54 (D.Utah July 1, 2002).

       As we understand it, the only persons named as plaintiffs in the complaint filed in

the district court who are pursuing this appeal, are Ms. Evelyn Johnson and Mr. Earl

DeWaal. Accordingly, we are not here concerned, as such, with the other plaintiffs named

in the complaint filed in the district court, i.e., National Arch and Bridge Society, Robert

Moore, David Brandt-Ericson, and Harvey Leake. Further, as we understand it, we are not

here concerned, as such, with the second cause of action in the complaint filed in the

district court, i.e., the cause which was based on the “equal protection” component of the

“due process” clause of the Fifth Amendment. Thus, we are only concerned here with

Johnson’s and DeWaal’s first cause of action, which was a challenge to the Park Service’s

policies and practices based on the Establishment Clause of the First Amendment. As to

Johnson, the district court held that Johnson had no standing to assert a claim based on an

alleged violation of the Establishment Clause. However, as to DeWaal, the district court

held that while DeWaal did have standing to assert a claim based on the Establishment

Clause, he had failed to state a claim upon which relief could be granted, and his first

cause of action was subject to a motion to dismiss. In line therewith, the district court

denied plaintiffs’ motion for summary judgment.

       As indicated at the outset, Johnson and DeWaal challenge the policies and practices

of the Park Service as such related to the Rainbow Bridge National Monument in Southern


                                             -4-
Utah, claiming that “the challenged policy violates the Establishment Clause of the First

Amendment because that policy has the purpose and effect of endorsing American Indian

religion and results in excessive entanglement of the federal government in religious

matters.” In the complaint, the plaintiffs in challenging the practices and policies of the

Park Service alleged the following:

                     Pursuant to the General Management Plan the Park Service
              placed signs around the Monument announcing the “sacred”
              nature of Rainbow Bridge. Some of the signs read as follows:
              “Neighboring Indian tribes consider Rainbow Bridge a sacred
              religious site. Please respect these long-standing beliefs.
              Please do not approach or walk under Rainbow Bridge.” “To
              Native American tribes/nations, Rainbow Bridge is a sacred
              religious site. In respect of these long-standing beliefs, we
              request your voluntary compliance in not approaching or
              walking under Rainbow Bridge.”

                                       * * * * *

                      The Park Service has also posted two declarations on its
              official Rainbow Bridge website that read as follows: “Please
              visit Rainbow Bridge in a spirit that honors and respects the
              cultures to whom it is sacred.” “To Native American nations,
              Rainbow Bridge is sacred. Please respect these long-standing
              beliefs. We request your voluntary compliance in not
              approaching or walking under Rainbow Bridge.” (Emphasis
              added.)

       Germane to our discussion are the several “encounters” between Johnson and

DeWaal with park employees. In the complaint, Johnson alleged that in October, 1997,

the following encounter occurred between herself and park officials:

                           The same Ranger then approached Mrs.
                     Johnson’s group and ordered them to leave the area.

                                             -5-
                   When asked why they should move the Ranger told
                   them that their presence on the far side of Rainbow
                   Bridge had the effect of encouraging others to walk
                   underneath the bridge. Although they wanted to stay
                   where they were, Mrs. Johnson and the others were
                   compelled to comply with the Ranger’s demands.

      In the complaint, DeWaal alleged an encounter with the park service

employees as follows:

                     On July 18, 1999, Earl DeWaal and members of his
             family and friends traveled to Rainbow Bridge. While taking
             in the view from the official viewing area, Mr. DeWaal asked
             a Park Service Ranger if anyone was allowed to walk
             underneath the Monument. The Ranger initially told Mr.
             DeWaal that no one could approach the Monument.
             However, when Mr. DeWaal asked for a reason, the Ranger
             capitulated and told him that he (Mr. DeWaal) could use the
             official trail to Rainbow Bridge, but threatened to cite or
             arrest him if he stepped off of the trail. However, there was
             no visible “trail” to Rainbow Bridge, and when Mr. DeWaal
             asked the Ranger to point out the path the Ranger refused,
             telling Mr. DeWaal that he should talk to a supervisor.
                     Immediately thereafter, Senior Ranger Mike Dedman
             arrived. Mr. DeWaal informed Rander Dedman that
             preventing visitors from approaching Rainbow Bridge was
             unlawful. Ranger Dedman responded by offering to escort
             Mr. DeWaal and some members of his group to Rainbow
             Bridge. Just then, another group of people from an official
             tour group arrived. Ranger Dedman withdrew his offer of
             escort and told Mr. DeWaal that no one could use the trail.
             When asked for a reason why, Ranger Dedman responded that
             use of the trail was prohibited for reasons of protecting Native
             American religion–specifically, in order to prevent
             desecration of the site. Ranger Dedman confirmed that if Mr.
             DeWaal attempted to approach Rainbow Bridge he would be
             cited or arrested. Although he wanted to use the trail to walk
             underneath Rainbow Bridge, Mr. DeWaal was compelled not
             to for fear of being cited or arrested.

                                           -6-
       In his deposition, DeWaal mentioned an additional encounter he had with the park

service in 1998. On appeal, counsel, in his brief, refers to that encounter as follows:

                     In July or August of 1998, Earl DeWaal traveled to the
              Monument with his wife, Vickie, and several of their
              children. A uniformed National Park Service
              Interpreter/Ranger requested that Mr. DeWaal and his family
              not approach or walk beneath Rainbow Bridge. . . . .
              Although Mr. DeWaal and his family wanted to walk beneath
              Rainbow Bridge, Mr. DeWaal and his family felt compelled
              by the actions and authority of the National Park Service
              Interpreter/Ranger and did not approach Rainbow Bridge. Id.

       The present case challenging the policies and practices of the Park Service was

brought pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06 (2000). The

plaintiffs sought declaratory and injunctive relief from those policies which informed

visitors to the Rainbow Bridge National Monument about the cultural and religious

significance of Rainbow Bridge to Native American tribes in the area, including a policy

of asking visitors to voluntarily refrain from approaching or walking under the Bridge.

(In this regard, the record indicates that, while the plaintiffs refrained from walking under

the bridge, the “policies and practices” of the Park Service wherein it asked visitors to

voluntarily comply did not deter many others who, in fact, did walk under the bridge.) In

support thereof, their complaint set forth the several “encounters” between Johnson, in

1997, and DeWaal, in 1999, and the park officials.

       Johnson and DeWaal further alleged in their complaint that the Park Service’s

policy of encouraging visitors to refrain from walking under the Bridge violated the


                                            -7-
Establishment Clause of the First Amendment to the Constitution because it had the

purpose and effort of advancing and endorsing Native American religion.

       Although this is a review of an administrative policy pursuant to the

Administrative Procedures Act, the district court, with the consent of all parties, permitted

discovery, which included, inter alia, testimony concerning the “encounters” between

Johnson and DeWaal with park employees. It was in this setting that the defendants filed

a motion to dismiss and Johnson and DeWaal, and the other plaintiffs, filed a motion for

summary judgment. As indicated, the district court dismissed the claim of Johnson on the

grounds that she did not have standing. The district court also held that DeWaal did not

have standing based on his “encounter” with park officials in 1999, but that he did have

standing on his 1998 “encounter” with park officials. As to that aspect of the case, the

district court went on to hold that the policy and practice of the Park Service to ask

visitors to voluntarily refrain from walking under the Bridge did not violate the

Establishment Clause.

       The first issue to be resolved is whether the district court erred in holding that

Johnson lacked standing, and that DeWaal had standing to bring this action. Our study of

the matter convinces us that the district court was correct in holding that Johnson lacked

standing, and that the district court erred in concluding that DeWaal had standing to

maintain the action.

       In Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-1 (1992), the Supreme Court


                                             -8-
articulated the “irreducible constitutional minimum” necessary to Article III standing as

follows:

                      First, the plaintiff must have suffered an “injury in
              fact” - - an invasion of a legally protected interest which is (a)
              concrete and particularized, and (b) “actual or imminent, not
              ‘conjectural’ or ‘hypothetical’[.]” Second, there must be a
              causal connection between the injury and the conduct
              complained of - - the injury has to be “fairly . . . trace[able] to
              the challenged action of the defendant . . . and not . . . th[e]
              result [of] the independent action of some third party not
              before the court.” Third, it must be “likely,” as opposed to
              merely “speculative,” that the injury will be “redressed by a
              favorable decision.” (Citations omitted.)

       In line therewith, in Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 874-5 (10th

Cir. 1992), we said that a party who would invoke federal jurisdiction “bears the burden

of establishing these elements” set forth in Lujan v. Defenders of Wildlife. In State of

Utah v. Babbitt, 137 F.3d 1193, 1202 (10th Cir. 1998), we stated that “[s]tanding is not

measured by the intensity of a party’s commitment, fervor, or aggression in pursuit of its

alleged right and remedy.” In that same case, we went on to speak as follows:

              “[the elements of constitutional standing] are not mere
              pleading requirements but rather [are] an indispensable part of
              the plaintiff’s case.” Defenders of Wildlife, 504 U.S. at 561,
              112 S.Ct. at 2136. Consequently, “each element must be
              supported in the same way as any other matter on which the
              plaintiff bears the burden of proof, i.e., with the manner and
              degree of evidence required at the successive stages of the
              litigation.” Id.

State of Utah v. Babbitt, 137 F.3d at 1204.

       As previously stated, in our view the district court was correct in holding that

                                              -9-
Johnson did not have standing to maintain this action and that, contrary to the holding of

the district court, DeWaal also did not have standing. Bear Lodge Multiple Use Ass’n. v.

Babbitt, 175 F.3d 814 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000), has particular

pertinency to the present case. The fact situation in Bear Lodge is quite similar to the fact

situation in the instant case. Bear Lodge concerned a national monument in Wyoming

where the Park Service had a policy of asking that climbers “voluntarily refrain from

climbing during the month of June when American Indians engage in The Sun Dance and

other ceremonies.” Id. at 815. The “climbers” challenged that policy and practice. In

Bear Lodge, the district court held that the plaintiffs there had standing to maintain the

action, but dismissed their claims on the merits. On appeal, we held that none of the

plaintiffs had standing, and we did not reach the merits of the case. In so doing, we spoke

in Bear Lodge as follows:

                     In short, the Climbers “claim that the Constitution has
              been violated, [but] they claim nothing else. They fail to
              identify any personal injury suffered by them as a
              consequence of the alleged constitutional error.” Valley
              Forge Christian College v. Americans United for Separation
              of Church and State, Inc., 454 U.S. 464, 485, 102 S.Ct. 752,
              765, 70 L.Ed2d 700 (1982). The Climbers are clearly
              incensed by the NPS’ request that they voluntarily limit their
              climbing, but

                     standing is not measured by the intensity
                     of the litigant’s interest or the fervor of
                     his advocacy. That concrete adverseness which
                     sharpens the presentation of issues, is the
                     anticipated consequence of proceedings
                     commenced by one who has been injured in

                                            - 10 -
                     fact; it is not a permissible substitute for the
                     showing of injury itself.

              Id. at 486, 102 S.Ct. at 766 (internal quotations and citations
              omitted). Because they have alleged no injury as a result of
              their claim, the FCMP improperly establishes religion, we
              hold the Climbers have no standing to sue in this case.
              (Emphasis added.)

Bear Lodge Multiple Use Ass’n. v. Babbitt, 175 F.3d at 822.

       Counsel suggests that the present case is different from Bear Lodge. We disagree.

We believe this case is controlled by Bear Lodge. In short, under Bear Lodge, neither of

these plaintiffs has standing to challenge the “policy or practice” of the Park Service,

which asks visitors to “voluntarily” refrain from going to a certain area of the park out of

respect for the religious significance the particular area has for a Native American Indian

tribe, on First Amendment grounds.

       Based on Bear Lodge, we affirm the district court’s dismissal of Johnson’s claim

based on lack of standing, and, at the same time, we affirm the district court’s ultimate

dismissal of DeWaal’s claim. However, in connection with DeWaal, we, unlike the

district court, are of the view that he, too, lacked standing, and, as in Bear Lodge, we do

not reach the merits of his claim that the policies and practices of the Park Service asking

visitors to voluntarily refrain from approaching and walking under the bridge violated the

Establishment Clause of the First Amendment.




                                            - 11 -
Judgment affirmed.

                              Entered for the Court,

                              Robert H. McWilliams
                              Senior Circuit Judge




                     - 12 -
