Going to Bat

Using both advocacy and litigation, the Legal Defense Fund boosts the potency of preservation law.

The world's largest natural bridge, a 290-foot-tall sandstone arch in San Juan County, Utah, has become the focal point of a persistent preservation debate. Rainbow Bridge National Monument, poised near the edge of Lake Powell amid 160 acres of National Park Service land, has for centuries been considered a sacred site by the Navajo, Hopi, Pueblo, and San Juan Paiute peoples. Now this hallowed ground is in the midst of a distinctly earthly dispute.

In late 2002, the Mountain States Legal Foundation, a conservative legal center based outside Denver, filed suit against the Park Service, disputing its request that as a gesture of respect, visitors refrain from walking under the arch. The foundation argued that such observance violates the Constitution's equal protection and establishment clauses—both of which protect against religious discrimination—and unfairly promotes Native American cultural practices. In January of this year, the National Trust stepped in with a counterattack; its Legal Defense Fund, together with the Association on American Indian Affairs, filed an amicus curiae (friend-of-the-court) brief in the U.S. Court of Appeals for the Tenth Circuit in support of the Park Service's original directive.

Since the late 1960s, the Trust has involved itself in legal advocacy—working with federal, state, and local entities to protect historic and cultural resources nationwide. Impelled by an increasingly heavy caseload, the Trust in the late 1980s established the Legal Defense Fund, which now handles all such advocacy issues. Since its inception, the program has provided assistance in thousands of cases, both in and out of the courts, to ensure the effectiveness of preservation law. 

"We are involved in hundreds of projects each year, all different types," says Trust General Counsel Paul Edmondson. "Going to court isn't always the first response, but we're prepared to do so if need be." Although non-litigation advocacy is the favored approach, the Fund has engaged directly in litigation.

In the Rainbow Bridge issue, several more steps must be taken prior to a final decision. The Trust's amicus involvement—acting as a supportive third party to intervene in a case in which it is neither plaintiff nor defendant—urges the appeals court to uphold Park Service policy, but the case remains pending on appeal. Nonetheless, the Fund's advocacy has helped formalize the tribes' dissatisfaction with the lawsuit.

Cases involving sacred-sites protection, while by no means the program's sole focus, have increased in recent years. The Fund is currently involved in a handful of projects similar to Rainbow Bridge, participating as amicus to halt development at both Black Creek, a 10,000-year-old site in Vernon Township, N.J., rife with Native American archaeological artifacts, and Medicine Wheel National Historic Landmark, an 80-foot-wide stone circle near Lovell, Wyo., that despite its sacred status is threatened by logging and road construction. Over the next several years, the Fund will enhance its role in other Native American cases—continuing its work to prevent a road from being extended through Petroglyph National Monument near Albuquerque, N.M., combating coal mining at Zuni Salt Lake in western New Mexico, and opposing construction of a highway through Ocmulgee National Monument near Macon, Ga.

"We have our fingers in a lot of developing issues," says Edmondson. "As time goes by, we've become more involved in a variety of national, state, and local controversies." In addition to sacred sites, the Fund is actively involved in helping preserve homes in the historic Country Club District of Kansas City, Mo., and in preventing construction of a cement facility near the Olana State Historic Site in New York's Hudson River Valley.

Although the Fund's work is extensive, the group itself is small: Only a few full-time lawyers conduct the Trust's legal advocacy work. Lawyers from around the country, however, regularly provide assistance on a pro bono basis. Also, the Fund has just hired a new Public Lands Law Fellow, Michael Smith, who will work in conjunction with the National Landscape Conservation System to protect natural and cultural resources, particularly in the West, that have been threatened by adverse use. The negative impacts of energy development—mineral exploration and installation of electrical lines, for example—will be of particular interest.

The Legal Defense Fund has helped bring about significant changes. Most recently, in April 2002, continued pressure by the Trust helped protect Weatherman Draw, a pictograph-rich Native American site in south-central Montana, from extensive oil drilling. Anschutz Exploration Corp., the Denver company that had sought to drill in the area, ultimately agreed to transfer its leasing interests to the Trust after the Trust appealed the original drilling decision in 2001, sparing the site from development in the near future.

The delicate handling of cases, particularly those related to sacred sites, is crucial. "We're always trying to approach issues by forging new alliances," says Edmondson of the Fund's advocacy projects. "For most cases, reaching an agreement without going to court is the best outcome."

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