Grand Canyon as Legal Creation

Standing with Havasupai, Hualapai, Hopi, and Navajo tribal leaders at Grand Canyon National Park's south rim on February 26, 2019, Arizona congressman Raul Grijalva introduced a bill "to protect, for current and future generations, the watershed, ecosystem, and cultural heritage of the Grand Canyon region": the Grand Canyon Centennial Protection Act. "Protecting the canyon is just, it's overdue and it's life-affirming."¹ With these words Grijalva undoubtedly channeled the spirit of the act's Indigenous and other advocates. No fewer than 1,006,545 acres of federal lands would fall within the act's ambit. True to its title, this estate would be withdrawn from the operation of laws that—part and parcel of Euro-American colonization over the past two centuries—have shaped indelibly the American West's landscape and human communities. Superimposed on those portions of Grand Canyon over which it would be cast like a net, the act would preclude "entry, appropriation, and disposal under the public lands laws"; "location, entry, and patent under the mining laws"; and "operation of the mineral leasing and geothermal leasing laws and mineral materials laws." Grijalva had made a bold, fitting gesture a hundred years to the day of the national park's creation.²

In a sense, though, it was a gesture as old hat as it was progressive. Grand Canyon's history is one domain of western history writ large, the essence of which Patty Limerick has captured poignantly: "the history of the West is a study of a place undergoing conquest and never fully escaping its consequences." And there's no mistaking the prevalence of measures such as the Grand Canyon Centennial Protection Act within this narrative:

Conquest basically involved the drawing of lines on a map, the definition and allocation of ownership (personal, tribal, corporate, state, federal, and international), and the evolution of land from matter to property. The process had two stages: the initial drawing of the lines (which we have usually called the frontier stage) and the subsequent giving of meaning and power to those lines, which is still under way.³

Law is complicit in this line drawing in more ways than I'm able to tell.⁴ But I'm going to try to do so anyway—not just in relation to Grand Canyon National Park, however, but "the entire Grand Canyon, from the mouth of the Paria River to the Grand Wash Cliffs, including tributary side canyons and surrounding plateaus."⁵ I remember visiting Grand Canyon for the first time as a kid in the 1980s, the fresh, lovely scent of the north rim's ponderosa pines forever etched in my memory. Although bookish by nature, I was too young to appreciate the eons captured in the rock layers, or precisely where I was situated within that humbling, mind-bending time scale. Nor was I much aware of the spaces constructed by laws all around me, from the national forest to the national park to the sculptor of Grand Canyon, the

Grand Canyon map, 2019. Courtesy of the National Park Service, https://www.nps.gov/grca/planyourvisit/maps.htm.

Colorado River. And it would be far too long before I learned of the Havasupai and Hualapai peoples, and what this magical place had been and still is for those tied umbilically to it. With time I would come to see all of this as interconnected—inextricable—and to feel enmeshed within it and beholden to it in ways that perhaps only one's family or one's life's work can ingrain. The centennial offers a chance to connect these dots, even if the pen still rests in the hands of a child.

Law in the Anthropocene

We live in interesting times upon the centennial—interesting times of our own making. Consider the age of Grand Canyon's oldest rocks: 1.8 billion years. That time span accounts for nearly 40 percent of the Earth's estimated 4.54 billion-year life. Formation of the igneous and metamorphic rocks of Grand Canyon's inner gorge almost two billion years ago was followed by the Colorado Plateau's uplift thirty to seventy million years ago and then by the Colorado River's sculpting of Grand Canyon beginning five to six million years ago. Though scientifically discoverable, these expanses of time are unfathomable to the human mind.⁶

They throw into relief the here and now. Although not a formally defined unit within the geological time scale, the "Anthropocene" has emerged over the past two decades as a term to denote our present geological time interval.⁷ It has developed a host of meanings but commonly refers to the current period of Earth's history, wherein human beings pervasively and profoundly influence the conditions, processes, and future of the planet. The Anthropocene thus has been characterized as "an acknowledgment that human action has become an important driver—arguably the most important driver—of change on Earth."⁸

Whither the law in this human epoch? Is it everywhere and nowhere? I would suggest yes for a couple reasons. For starters, the mind-numbing array of human actions impacting the Earth at this time—greenhouse gas emissions and climate change, habitat destruction and species extinction, and so on—inherently involve laws. There is variation in the types of laws operating in any given context (international, national, subnational, etc.) as well as the roles played by these laws in enabling or inhibiting human actions. But in one form or another, the law is present as a behavioral matrix. It is this presence that, while instrumental to the dizzying human actions that denote the Anthropocene, deserves freestanding attention as a corollary quality of the era. At this point in time, human beings have developed an unprecedented scope of laws to mediate their relations with one another and other parts of nature—collectively, "socioecological relations." Just as it is arguably impossible to identify an ecosystem on the planet where human beings have not had some impact, so too would one be hard pressed to locate an ecosystem untouched by human laws. In and of itself, this global proliferation of law constitutes a human action that pervasively and profoundly influences the conditions, processes, and future of Earth. And this perspective applies as readily to Grand Canyon as it does anywhere else.

Grand Canyon Legal Spaces

So would it be wrongheaded to say law constructs Grand Canyon in the Anthropocene? Maybe so, maybe not. Grand Canyon is a place shaped by perpetual ecological and geological processes. It is also a place lodged and living in peoples' hearts and minds, perhaps especially so upon the centennial. Neither aspect of the place can be attributed wholly to law. Yet neither aspect can be cleanly compartmentalized from law either. In short, as elaborated in the pages that follow, Grand Canyon is indeed a legal creation at this historical juncture—a conglomeration of legal spaces that have been established since the late nineteenth century to impose rules for socioecological relations within their respective domains.⁹ Shedding light on this state of affairs entails a journey back to Philadelphia and the birth of the United States as a nation-state.

Constitutional Migration

The substrate and starting point is the U.S. Constitution. Adopted more than two thousand miles eastward of Grand Canyon, and with assuredly little or no thought given to the document's application to the canyon's landscape, waterscape, and Native peoples, the Constitution anchors the entirety of laws molding this place. The Constitution's drafting in 1787 placed fundamental parameters on socioecological relations in Grand Canyon. From this foundation came the Property Clause in which public-land laws would take root, the Compact Clause from which interstate water compacts would spring, and the Indian Commerce Clause underlying Congress's affairs with Native Americans.¹⁰ The Takings Clause is also notable, forbidding private property from being taken for public use without just compensation, as well as the Supremacy Clause's declaration of federal law as "the supreme Law of the Land."¹¹ And the Treaty Clause, too, cannot go unmentioned, for it would serve as a gateway through which Grand Canyon and other parts of the Southwest would be opened to the Constitution.¹²

In relation to Grand Canyon and elsewhere, constitutional frameworks require physical space for legal expression. So enters the 1848 Treaty of Guadalupe Hidalgo. A testament to U.S. empire building roughly seventy years after the Constitution's framing, the treaty ended the Mexican-American War. It forced Mexico to relinquish claims to vast lands within the Colorado River Basin, including Grand Canyon, to the United States. A new legal boundary was superimposed on the landscape—a boundary to be "religiously respected by each of the two republics."¹³ Notably, the treaty was not blind to human habitation in the territory whose legal status it changed. Provisions on citizenship and property of Mexican residents offer one illustration. Even more on point, however, was Article XI's treatment of Native American tribes. It began on an ethnocentric and colonial note, stating: "A great part of the territories which, by the present treaty, are to be comprehended for the future within the limits of the United States, is now occupied by savage tribes, who will hereafter be under the exclusive control of the government of the United States."¹⁴

That text provides a segue from what might be deemed the foundational laws of this narrative: the U.S. Constitution as the legal cornerstone of the nation-state asserting ownership of and sovereignty over Grand Canyon, and the Treaty of Guadalupe Hidalgo as the international instrument through which the Constitution migrated to this physical space. Growing out of the constitutional clauses identified above and Supreme Court constructions of those clauses, several strands of subconstitutional laws—federal statutes and regulations, executive orders, and presidential proclamations—have emerged since 1848 to shape Grand Canyon into the place it is today. An exhaustive account is impossible and unnecessary. But suffice it to say these strands concern vital subjects that distinguish the American West as a region when considered through the eyes of the law: Native Americans, public lands, and water.

Indigenous Space

Turning initially to the Colorado River Basin's Indigenous peoples, nearly a dozen federally recognized tribes hold traditional connections to Grand Canyon according to the National Park Service.¹⁵ Only a year passed after the Treaty of Guadalupe Hidalgo's drafting before the United States began exercising "exclusive control" over these tribes as contemplated by Article XI. The Navajo Nation formed a treaty in 1849 reciting how the tribe had been "lawfully placed under the exclusive jurisdiction and protection" of the U.S. government via the Treaty of Guadalupe Hidalgo. The 1849 treaty then proceeded to describe how the "United States shall, at its earliest convenience, designate, settle, and adjust their territorial boundaries, and pass and execute in their territory such laws as may be deemed conducive to the prosperity and happiness of [the Navajos]."¹⁶ The segregation and paternalism embedded in this text foreshadowed the futures of tribes with ancestral ties to Grand Canyon.

Rationalized as culturally inferior by John Wesley Powell and other government officials, the prevailing solution to the "Indian problem" in and around Grand Canyon (and elsewhere) was to create reservations where Native Americans could be segregated and acculturated to Euro-American ways—agriculture, private property, English, and Christianity.¹⁷ Federal law was harnessed to this end during the latter half of the nineteenth century and early twentieth century.

Returning to the Navajo Nation, it formed a subsequent treaty with the U.S. government in 1868 under which a reservation was created on a small portion of traditional lands. "This was the first instance in which Indian lands in the greater Grand Canyon were given new identity and substance through the drawing of boundaries."¹⁸ To be clear, the 1868 treaty came into existence only after the Navajo had endured the Long Walk in 1864—involving a total of fifty-three episodes of forced removal from traditional lands by the U.S. military—and roughly four years of desolation at an internment camp called the Bosque Redondo Reservation.¹⁹ It was in this context that the Navajo agreed to make the reservation created by the 1868 treaty their "permanent home," not to make "any permanent settlement elsewhere," and "to induce Indians now away from reservations … leading a nomadic life, or engaged in war against the people of the United States, to abandon such a life and settle permanently in one of the territorial reservations."²⁰

Upon the close of the treaty-making era of federal Indian policy in 1871, executive orders served an equivalent function for other tribes with connections to Grand Canyon.²¹ These tribes included the Yavapai-Apache Nation in 1871,²² Zuni Tribe in 1877,²³ Havasupai Tribe in 1880,²⁴ Hopi Tribe in 1882,²⁵ Hualapai Tribe in 1883,²⁶ and Kaibab Band of Paiutes in 1917,²⁷ among others. Boilerplate text appeared throughout these documents: "It is hereby ordered that the tract of country [delineated] be and the same is hereby withdrawn from settlement and sale, and set apart for the use and occupancy of [tribe]."

Boundaries, of course, are often fluid. And that certainly has proven to be the case with reservation boundaries for tribes with traditional ties to Grand Canyon. By means of additions, exclusions, allotment, and land exchanges, these boundaries have morphed considerably over the past century and a half. Varying in degree and frequency across the tribes, this morphing occurred via executive orders until 1918 and by statute after that point.²⁸ Perhaps most remarkable along these lines is the Navajo Reservation, whose boundaries have been adjusted at least seventeen times since the reservation's initial establishment in 1868.²⁹

Although the scope of these adjustments is pronounced, it is not an anomaly.³⁰ Given the Havasupai Tribe's cultural and physical embeddedness within Grand Canyon, it would be a major omission not to mention the Havasupai Reservation's expansion in 1975 via the Grand Canyon National Park Enlargement Act. For roughly a half century prior, the federal government had restricted the Havasupai tribe to a 518-acre reservation in Havasu Canyon delineated in 1882.³¹ "To improve the social, cultural, and economic life" of tribal members, the 1975 statute added 185,000 acres to the reservation, providing these lands "shall remain forever wild" subject to prescribed exceptions—traditional uses, agriculture and grazing, but not commercial timber production, commercial mining, or commercial or industrial development. The act also designated 95,300 acres of "Havasupai Use Lands" in Grand Canyon National Park where grazing and other traditional uses would be allowed.³²

With respect to the Havasupai and other tribes, the basic message in this realm is that federal law has been employed for more than a century and a half—since the 1868 treaty with the Navajo—to delineate legal spaces to be inhabited by Indigenous peoples with connections to Grand Canyon that trace back hundreds if not thousands of years.³³ It should come as no surprise that this line-drawing process has had profound consequences for these Indigenous peoples' connections to place, cultural integrity, and socioeconomic well being. Geographer Barbara Morehouse provides a powerful synthesis as of the late nineteenth century:

By the early 1880s the greater Grand Canyon had been radically transformed from a space shared by a few indigenous peoples since "time immemorial" to an active place of cash-economy production and consumption. … The partitioning of space was a major strategy on the part of the United States not only to exert social and geographical control, but

Edward Curtis, "Home of the Havasupai," 1903. Courtesy of the Library of Congress, http://www.loc.gov/pictures/item/2003652734/.

also to change the terms of contest from armed force to legalistic negotiation. … The native peoples found themselves encircled not only by a new culture, but also by geographical lines that were used to dictate where they could live and what they could do.³⁴

Public Lands: On the Ground & In the Air

The Grand Canyon National Park Enlargement Act mentioned above offers a bridge from the strand of laws governing the relationship between Native Americans and Grand Canyon to a parallel strand of laws dealing with public lands. For most people, it is likely this latter strand that comes to mind when thinking about Grand Canyon as a "legal creation." The laws surveyed below in regards to Grand Canyon National Park and adjacent federal lands bolster the message conveyed at the outset: Grand Canyon is a patchwork of legal spaces.

Roughly four decades elapsed between the Treaty of Guadalupe Hidalgo's formation in 1848 and the initial watershed event in the public lands arena: the Forest Reserve Act's passage in 1891. While the treaty made the Property Clause applicable to Grand Canyon, the 1891 act empowered the president to establish forest reservations—to "set apart and reserve … any part of the public lands wholly or in part covered with timber or undergrowth … as public reservations."³⁵ The Grand Canyon Forest Reserve sprang into being two years later. "The public good would be promoted" by the reservation, declared the proclamation, reserving the area from "entry or settlement" and excepting prior valid land entries and mining claims.³⁶ Fast forward four years and another milestone occurred with the 1897 Forest Service Organic Act. It articulated the purposes of forest reservations: "to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber." The act likewise elaborated how forest reservations would be administered, touching on fire protection, timber sales, settlers' access, mining, and water use. Congress expressly authorized the president to modify forest reservation boundaries, which contrasts with the 1906 Antiquities Act covered below.³⁷

Taken together, the 1891 Forest Reserve Act and the 1897 Organic Act paved the way for forest reserves—latter called "national forests"—to be superimposed on Grand Canyon as a distinct class of federal lands. The statutes spawned a new type of legal space within this one-of-a-kind place. Through a series of presidential proclamations beginning in the early twentieth century, national forests in and around Grand Canyon went through successive boundary adjustments, consolidation, and renaming in a pattern similar to that described above for the reservations of Native American tribes with traditional ties to Grand Canyon.³⁸ Painting in broad strokes, proclamations creating or enlarging national forests contained common provisions reserving the particular area from entry and settlement for the "public good," and excepting from the reservations prior valid land claims. Conversely, proclamations excluding areas that formerly had been part of national forests restored such areas to the public domain.

Although closely intertwined with the forests in and around Grand Canyon, the Grand Canyon National Game Preserve deserves brief mention as a separate federal-land classification. In 1906, Congress authorized the president "to designate such areas in the Grand Canyon Forest Reserve as should … be set aside for the protection of game animals and be recognized as a breeding place therefor." This statute imposed criminal penalties for hunting, trapping, killing, or capturing of game animals in the preserve unless permitted by the secretary of agriculture.³⁹ Several months after the statute's enactment, Theodore Roosevelt exercised his authority to create the Grand Canyon National Game Preserve.⁴⁰ This development did not bode well for all species in Grand Canyon, as the U.S. Forest Service "declared war on any form of four-legged predator."⁴¹ The game preserve was later reduced in size in 1909, 1919, 1931, and 1969—as well as subject to the Grand Canyon Forest Reserve's becoming, in part, the Kaibab National Forest in 1908—but nonetheless has retained its protective, procreative purpose.⁴²

And that brings us one step closer to the heart of the public-land laws constructing Grand Canyon—namely, laws addressing national monuments and national parks. In this vein, there are two counterparts to the 1891 Forest Reserve Act and the 1897 Forest Service Organic Act: the 1906 Antiquities Act and the 1916 National Park Service Organic Act. We are all beneficiaries of the dynamic interplay between these two statutes in Grand Canyon, as designations under the former have been consistently succeeded by designations per the latter.

With a couple key intermittent steps, Grand Canyon National Park's genesis can be traced to the Antiquities Act's passage in 1906. It authorized the president to establish national monuments—"to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments." Such reservations were to be "confined to the smallest area compatible with the proper care and management of the objects to be protected," and private claims could be relinquished as necessary for this proper care and management.⁴³

Grand Canyon National Monument followed on the heels of the Antiquities Act. President Roosevelt's 1908 proclamation described the "Grand Canyon of the Colorado River" as "an object of unusual scientific interest, being the greatest eroded canyon within the United States," and reserved the canyon as a national monument "with such other land as is necessary for its proper protection." While making an exception for prior valid claims, mining and settling were prohibited within the monument, as well as appropriation, injury, or destruction of its features. Thus, as had been the case with Grand Canyon Forest Reserve fifteen years earlier, Grand Canyon National Monument's creation—predicated on a landmark piece of federal legislation—drew another unique type of legal space on Grand Canyon.⁴⁴ For the next decade, the U.S. Forest Service would administer this space with an "expanded mission."⁴⁵

Then things forged ahead with the National Park Service Organic Act in 1916. It did nothing less than establish the National Park Service, charging the new agency with promoting and regulating use of national parks and monuments, and articulating their remarkable purpose: "to conserve the scenery and the natural and historic

Rand McNally and Company, "Grand Canyon National Park Arizona," 1919. Courtesy of the Library of Congress, https://www.loc.gov/resource/g4332g.np000099/?r=-0.086,-0.058,1.18,0.891,0.

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."⁴⁶ The secretary of the interior would wield authority to make rules and regulations for the use of national parks and monuments. And the secretary would also be empowered to grant privileges, leases, and permits for visitor accommodation—so long as there was no interference with public access to "natural curiosities, wonders, or objects of interest"—as well as to allow livestock grazing if not detrimental to the primary purpose for which a national park or monument was designated.⁴⁷

A crown jewel of the national park system was born against this backdrop: Grand Canyon National Park. As declared by the 1919 statute creating it: "There is hereby reserved and withdrawn from settlement, occupancy, or disposal under the laws of the United States and dedicated and set apart as a public park for the benefit and enjoyment of the people … the 'Grand Canyon National Park.'" Its administration, protection, and promotion were entrusted to the National Park Service, and prior valid rights were unaffected by the designation, "whether for homestead, mineral, right of way, or any other purpose." Looking forward, a curious trio of activities would be permitted whenever consistent with the park's primary purposes: railroad access via easements or rights of way; prospecting, development, and use of mineral resources; and development and maintenance of a federal reclamation project. Members of the Havasupai Tribe likewise would be allowed to use and occupy park lands for agriculture subject to the secretary of the interior's discretion. In terms of the national park's relation to other legal spaces that had been created in the vicinity, Grand Canyon National Monument would be no more—with President Roosevelt's 1908 proclamation being revoked and repealed—and Grand Canyon National Game Preserve lands would also be excluded from the park's boundaries.⁴⁸

Boundary setting based on the 1906 Antiquities Act and the 1916 Organic Act, of course, did not end in Grand Canyon with the national park's creation. Congress enacted statutes during the 1920s revising the park's boundaries and facilitating a land exchange.⁴⁹ These measures, in turn, were followed by a 1931 statute providing: "hereafter no permit, license, lease, or other authorization for the prospecting, development, or utilization of the mineral resources within … the Grand Canyon National Park, Arizona, shall be granted or made."⁵⁰ Dovetailing with this mining prohibition was a 1962 statute addressing conveyance of a patented claim on the park's south rim held partly by C. J. Babbitt—Interior Secretary Bruce Babbitt's grandfather.⁵¹

Perhaps most important during this period, however, was stage setting for a cyclical pattern. With text mirroring Theodore Roosevelt's roughly twenty-five years before, Herbert Hoover penned a presidential proclamation in 1932 creating a new Grand Canyon National Monument.⁵² It encompassed approximately 427 square miles of the lower canyon, including Toroweap Valley, located adjacent to the national park's western boundary.⁵³ Three decades later, in 1969, this addition would be joined by a national monument at Marble Canyon—"a northerly continuation of the world-renowned Grand Canyon [that] possesses unusual geologic and paleontologic features and objects and other scientific and natural values."⁵⁴ The latter proclamation made clear where the new monument fit within the patchwork of legal spaces, assimilating parts of Kaibab National Forest and Grand Canyon National Game Preserve, and abutting the Navajo Reservation's western boundary.

Then history repeated itself and Grand Canyon National Park grew—to 1.2 million acres. Lands previously within Grand Canyon National Monument and Marble Canyon National Monument became part of the enlarged national park. The 1975 Enlargement Act's policy declaration was referenced earlier and bears quoting in elaborated form:

The entire Grand Canyon, from the mouth of the Paria River to the Grand Wash Cliffs, including tributary side canyons and surrounding plateaus, is a natural feature of national and international significance. Congress therefore recognizes the need for, and in this Act provides for, the further protection and interpretation of the Grand Canyon in accordance with its true significance.⁵⁵

Within the enlarged park's boundaries, the secretary of the interior was authorized to acquire private lands through donations, purchases, and exchanges, and limits were imposed on renewing existing grazing rights. In addition, the 1975 act (and an amendment later that year) addressed a couple topics that had not been on the radar when the national park was established in 1919: designation of wilderness in certain areas of the park under the 1964 Wilderness Act, and regulation of air traffic over the park to protect natural quiet and visitor experience.⁵⁶

In the four decades since Grand Canyon National Park's enlargement, a good deal of attention has been paid to wilderness in and around Grand Canyon, but no designation has been made within the park itself. The National Park Service has proposed four wilderness areas totaling 1,143,918 acres—approximately 94 percent of the park's total area—but Congress has not yet acted on this proposal.⁵⁷ In contrast, glancing outside the park's boundaries, a 1984 statute created seven wilderness areas within or adjacent to Grand Canyon.⁵⁸ Two wilderness areas are located partly or wholly inside Kaibab National Forest, while five wilderness areas fall partly or wholly within two national monuments established in 2000: Grand Canyon-Parashant National Monument and Vermillion Cliffs National Monument.⁵⁹ All told, each of these post-enlargement wilderness areas and national monuments represents another legal space that has been created and superimposed on Grand Canyon's magnificent landscape.

Finally, leaving the ground for just a moment, Grand Canyon's air space has also been a key focus in the four decades since the national park's enlargement. One concern was already noted: the need for "substantial restoration of the natural quiet and experience of the park and protection of public health and safety from adverse effects associated with aircraft overflight."⁶⁰ Expressed in the 1987 National Parks Overflights Act, this priority has spawned several federal statutes and a slew of federal regulations, with remedial measures ranging from flight route designations to quiet aircraft technology requirements to operational caps on commercial air tours.⁶¹ A second concern for the canyon's air space is pollution. The Clean Air Act adheres here. In 1977, two years after its enlargement, Grand Canyon National Park was designated a "Class I area" under the act. In line with this designation, there are air-quality-deterioration limits and visibility-related protections for scenery. Congress amended the act in 1990 to establish a Grand Canyon Visibility Transport Commission to study interstate transport of air pollutants.⁶² In turn, recommendations made by this commission in 1996 are now being implemented by the Western Regional Air Partnership and the Environmental Protection Agency (EPA). EPA has also been extensively involved in the development of federal and state implementation plans addressing regional haze at Grand Canyon, including legal challenges brought against these plans in federal court.⁶³ Yet again, the takeaway in this domain does not so much concern the nuances of these laws (and litigation) regarding aircraft overflights and air pollution, but rather the fundamental point that they have emerged to shape Grand Canyon's air space.

Colorado River as Encumbered Sculptor

But what about Grand Canyon's sculptor, the Colorado River? To what extent has law channeled it since the 1848 Treaty of Guadalupe Hidalgo brought the U.S. Constitution to this place? A labyrinth called the "Law of the River" must be navigated for answers. Nearly a century old, it governs transboundary allocation and management of water in the Colorado River Basin, domestically and internationally. Thus, in relation to Grand Canyon (and elsewhere across the basin), the Law of the River constructs the Colorado River as a fluid legal space.

One aspect of this construction involves the Law of the River's transboundary allocation framework. The 1922 Colorado River Compact is its cornerstone.⁶⁴ Oodles could be written about the compact's history and features, but flow obligations imposed by the document are most relevant.⁶⁵ They are twofold and apply at Lee Ferry—the compact's dividing line between the Upper Basin and Lower Basin located approximately two miles downstream of the historic ferry crossing itself, Lees Ferry, which marks the upstream tip of Grand Canyon National Park.⁶⁶ On one hand, the Upper Basin states (Colorado, New Mexico, Utah, and Wyoming) are obligated to contribute flows at Lee Ferry to satisfy Mexico's entitlement to Colorado River water under a 1944 treaty, at least insofar as "surplus" is not available for this purpose.⁶⁷ On the other hand, these states are obligated not to "cause the flow of the river at Lee Ferry

Eugene C. La Rue, "A view down Marble Canyon from the plateau 1500 feet above Colorado River at Lees Ferry, Arizona," 1922. Courtesy of the Library of Congress, https://www.loc.gov/item/2017652349/.

to be depleted below an aggregate of 75,000,000 acre-feet for any period of ten consecutive years reckoned in continuing progressive series."⁶⁸ This domestic obligation benefits the Lower Basin states (Arizona, California, and Nevada). Given Lee Ferry's location, the core insight is that annual volumes of Colorado River flows in Grand Canyon hinge directly on these flow obligations.

An overlapping aspect of law's construction of the Colorado River involves plumbing—that is, water infrastructure (dams, reservoirs, canals, etc.) implanted over the course of the twentieth century to implement the Law of the River's allocation framework. Three main federal laws produced this plumbing: the 1928 Boulder Canyon Project Act (BCPA), the 1956 Colorado River Storage Project Act (CRSPA), and the 1968 Colorado River Basin Project Act (CRBPA).⁶⁹ The BCPA brought about Hoover Dam to impound the Colorado River into the basin's largest reservoir, Lake Mead, immediately downstream of Grand Canyon. The CRSPA followed suit just upstream of Grand Canyon, authorizing Glen Canyon Dam to impound the Colorado River into the basin's second-largest reservoir, Lake Powell. It operates as a savings account to ensure the Upper Basin states satisfy their Colorado River Compact flow obligations, while Glen Canyon Dam serves as a "cash-register dam" with its hydropower generation. The CRBPA built on its predecessors by requiring the secretary of the interior to develop criteria for operating Glen Canyon Dam in a way that fulfills the compact flow obligations—again, directly impacting Colorado River flows through Grand Canyon.⁷⁰ Further, something the CRBPA almost did—but ultimately did not do—was authorize the Marble Canyon and Bridge Canyon dams at the head and foot of Grand Canyon, respectively. They would have electrified the CRBPA's centerpiece, the Central Arizona Project, with hydropower, but history took a different course. This job went instead to a coal-fired power plant adjacent to Grand Canyon, Navajo Generating Station, with attendant impacts on the canyon's air quality.⁷¹

It was not until after the allocation framework and plumbing-related laws were on the books that environmental laws became part of the Law of the River. Some even today contest whether they fall inside or outside the labyrinth. Regardless, just as their counterparts, these laws plainly construct the Colorado River as a legal space in Grand Canyon.

The 1992 Grand Canyon Protection Act is the elephant in the room.⁷² It saddled the secretary of the interior with a dual mandate. Glen Canyon Dam must be operated "to protect, mitigate adverse impacts to, and improve the values for which Grand Canyon National Park and Glen Canyon National Recreation Area were established." Yet the secretary must fulfill this mandate without running afoul of the allocation and infrastructure laws identified above. Long story short, the act required an environmental impact statement (EIS) to be prepared that would thread this needle.⁷³ The EIS's record of decision was released in 1996 and called for several key measures for Grand Canyon, including an operating regime for Glen Canyon Dam with flow-release restrictions, a Glen Canyon Dam Adaptive Management Program, beach/habitat-building flows aimed at depositing sediment in Grand Canyon for recreation and ecosystem management, and establishment of a new population of endangered humpback chub.⁷⁴

Twenty years of scientific information was gathered before the 1996 EIS's record of decision was supplanted by a successor: the Glen Canyon Dam Long-Term Experimental and Management Plan (LTEMP). The LTEMP controls how the Colorado River will flow through Grand Canyon up to 2036.⁷⁵ Contained in a 2016 EIS record of decision, an option called "Alternative D" was selected for the plan to fulfill the Grand Canyon Protection Act's dual mandate. Decommissioning of Glen Canyon Dam and Glen Canyon Institute's "Fill Mead First" proposal were notably dismissed from the analysis.⁷⁶ Alternative D largely, though not wholly, follows the path begun in 1996. The Glen Canyon Dam Adaptive Management Program will continue its work, including scientific studies by the U.S. Geological Survey's Grand Canyon Monitoring and Research Center.⁷⁷ A regime for Glen Canyon Dam's operation will govern that involves slightly modified restrictions on reservoir releases as well as continued beach/habitat-building flows, the latter tracking high-flow experiments conducted in 1996, 2004, 2008, 2012, 2013, 2014, 2016, and 2018 to deposit sediment in Grand Canyon. Alternative D also entails flow measures to benefit Grand Canyon's humpback chub population, including flows intended to mediate its relationship with an exotic trout population (fishery).

Alternative D is thus a Grand experiment in the Anthropocene. Pun intended. The same can be said about the entire Law of the River as it encumbers Grand Canyon's sculptor. While distinct in its fluid nature, the Colorado River is yet another legal space whose features are delineated by law. In this way, the river joins ranks with the reservations carved to segregate Native American tribes with traditional ties to Grand Canyon, as well as the wide-ranging legal spaces in and around the canyon generated by public-land laws. It is one thing, however, to suggest the prevalence of these laws in Grand Canyon is a distinguishing characteristic of this human epoch. And it is yet another to survey the diverse laws constructing Grand Canyon that support this view. What remains untouched are macro questions that provide an opportunity for synthesis and insights into the "big picture"—namely, the precise nature of this human institution called "law" that serves to project a behavioral matrix across Grand Canyon.

Metanarrative via Metaphor

How should we conceive of the laws that construct Grand Canyon as a place? At the end of the day, what do these laws really do and what are they fundamentally about? The line of thought outlined by these questions seems especially worthwhile upon the centennial, and I will rely on three metaphors to explore it.⁷⁸ For those accustomed to engaging with Grand Canyon (and other parts of the American West) from an advocacy angle, this content is the essay's prescriptive piece. We should think long and hard about what these laws mean and do. We should conceive of them as formative elements of an intergenerational trust embracing Grand Canyon. And to the extent the laws betray that trust—shaping this one-of-a-kind place in ways that run contrary to our individual and collective views on human relations and stewardship—we should work tirelessly for progressive change.

Picture as an initial metaphor a trail sign in Grand Canyon National Park. Any number of signs along popular trails like Bright Angel will do. Details are unimportant, only the simple image of a post, sign, and message. The essential nature of the laws constructing Grand Canyon can be appreciated, in part, through this metaphor. Two aspects of it are key.

At the outset, the trail sign is a regulatory tool.⁷⁹ Depending upon its message, the sign could regulate a host of human behaviors. Broadly speaking, such regulation may concern interactions among human beings—for example, members of the public and parties with private inholdings in the park—or interactions between human beings and other sentient beings or non-sentient parts of Grand Canyon's ecosystem—for example, wildlife, fish, or sensitive soils. Regardless of its behavioral target, the sign, as an expression of the laws underlying it, shapes Grand Canyon by regulating socioecological relations inside the boundary lines.

Yet neither the trail sign's existence nor its message are foreordained. Put differently, the park service's posting of, and particular message on, the sign cannot be viewed as inevitable, standardized acts. This reality speaks to a conjoined aspect of the metaphor. Nothing should be taken as simply given in terms of how socioecological relations within Grand Canyon National Park are regulated. Rather, the sign is inherently a normative tool.⁸⁰ It owes its life to human values. That is, whether focused on human interactions or interactions between human beings and other parts of Grand Canyon's ecosystem, the sign's posting and message realize human values about how socioecological relations should look. What exact forms these values take depends upon many factors, including peoples' conscious and/or unconscious views on human exceptionalism and social hierarchy. Without tracing these roots any deeper for now, the takeaway is that human values stand up the sign as well as the laws it signifies.

And that brings back to the stage Grand Canyon's sculptor: the Colorado River. Is there a better metaphor for the passage of time than its sacred, ceaseless flows? As mentioned earlier, these flows began sculpting five to six million years ago according to Western science, which makes miniscule the human scale for which the river serves as a metaphor here.⁸¹ Nonetheless, coupled with its constant carving, the river's winding channel and fluctuating flows in Grand Canyon shed further light on the essential nature of the laws constructing this place.

Not only are these laws regulatory tools whose existence and substance are animated by human values. They are also afloat on the river of time. Like all laws, they are dynamic.⁸² Just as the Colorado River is anything but stationary—and same goes for Grand Canyon's ecosystem as a whole—the laws developed to mediate socioecological relations within the canyon inevitably evolve. Consider as just one example the 1919 and 1975 statutes creating and enlarging Grand Canyon National Park, respectively, both of which incorporated previously designated national monuments whose founding documents were superseded. Thus, one might say that ecological dynamism syncs with institutional dynamism in Grand Canyon. And the latter pattern is fully unsurprising given what has already been discussed. Human values about socioecological relations underpin laws governing such relations. As values change over time, so do laws, whether in the domain of Native American affairs (for example, commencement of the self-determination era of federal Indian policy in the late 1960s) or public lands and water (for example, enactment of the Grand Canyon Protection Act in 1992).⁸³ Far more could be said about the proactive versus reactive roles played by laws in the evolution of human values concerning socioecological relations. But the Colorado River's flows convey the main point: change is a constant for the regulatory, value-infused laws constructing Grand Canyon.

A transition from the sculptor to the block is in order for the final metaphor, from the incising Colorado River to the uplifting Colorado Plateau. Recall the age of Grand Canyon's oldest rocks, 1.8 billion years, and the portion of Earth's history revealed by them, 40 percent of an estimated 4.54 billion-year life.⁸⁴ What a gift these rock strata are as a record of natural history, not only to understand our shared past, but also to harness that understanding to chart our shared future. A similar sentiment applies to Grand Canyon's legal landscape.

Laws memorialize identity.⁸⁵ Like Grand Canyon's rock strata, the layers of laws that began constructing the canyon during the latter half of the nineteenth century are a historical record. They reveal the essence of the metaphors above: the dynamic evolution of human values about socioecological relations in Grand Canyon. Again, the laws are regulatory tools that have shaped the canyon in line with these values. Gazed at from an intergenerational perspective, it is an obvious yet often hard truth that certain laws, or even integrated layers of laws, regulate socioecological relations in ways that may seem wrongheaded or worse from the vista of the present. This pattern is discussed further below, but suffice it to say that it is apparent with regard to relations among human beings in and around Grand Canyon (for example, historical treatment of Native American tribes connected to the canyon), as well as relations between human beings and other parts of Grand Canyon's ecosystem (for example, Glen Canyon Dam's plugging of the Colorado River).⁸⁶ Just like the canyon's naked rocks, however, the laws baldly expose the identity of the age—warts and all. And that poses some questions.

Do you like our identity at Grand Canyon? How do you feel, and what do you think, about the rock strata of the legal landscape? Do the laws align with your values about human relations and stewardship? That word "align" is clutch.⁸⁷ Here's a basic notion riffing off it: laws constructing Grand Canyon should align with prevailing contemporary values about socioecological relations. Grand Canyon should not be constructed by a dead hand. Although perhaps sensible at their times of origin, laws embodying antiquated conceptions of socioecological relations—"lords of yesterday" as they have been called—should not set perpetual behavioral rules for how human beings are allowed or forbidden to interact with one another at Grand Canyon or with Grand Canyon's broader ecosystem.⁸⁸ The metaphorical rock strata should be understood. And parties who have built their lives and livelihoods atop the rock strata should be treated equitably in the values-driven legal evolution. But the dead hand cannot and should not thwart that evolution. Rather, it must be guided not only by a reverence for history, but also unyielding benevolence toward generations to come.

________

My kids are now about the same age I was on my first trip to the north rim. I haven't yet been able to bring myself to take them to Grand Canyon, however, due to the unnerving combination of their boundless energy and the canyon's stark topographical relief—a nightmare-inducing cocktail. We'll get there, though. Of that you can be sure.

Between now and then, the line-drawing animating this essay will undoubtedly continue. It's a sure bet western history won't reverse course on this front.⁸⁹ Part of that process will entail drawing new lines at Grand Canyon, while another part will involve defining the meaning of existing ones. In both cases, the lines will be visible and invisible simultaneously, manifest in laws, policies, and sundry, yet often overlooked by or indiscernible to those enveloped in the demarcated legal spaces. The fates of the Native inhabitants of this indescribable corner of North America are in play in this process—though "play" is too light a word given what's at stake for these Indigenous peoples: their right to self-determination as human beings. And this gravity applies to our species' relation to Grand Canyon in its entirety: sculpting river, ancient rock strata, evergreen forests, even the "small city" sprawled on the south rim. This whole place is being constructed by law in the Anthropocene. Future iterations of our legal creation will inherently determine our fidelity to Theodore Roosevelt's charge upon seeing Grand Canyon for the first time in 1903—a charge that can pull a person's heart from their chest:

I have come here to see the Grand Canyon of Arizona, because in that Canyon Arizona has a natural wonder which, so far as I know, is in kind absolutely unparalleled throughout the rest of the world. I shall not attempt to describe it because I cannot. I could not choose words that would convey or that could convey to an outsider what that Canyon is. I want to ask you to do one thing in connection with it in your own interest and in the interest of the country—to keep this great wonder of nature as it now is. … Leave it as it is. You cannot improve it; not a bit.

The ages have been at work on it, and man can only mar it. What you can do is to keep it for your children and your children's children and for all who come after you, as one of the great sights which every American if he can travel at all should see.

Keep the Grand Canyon of Arizona as it is. We have gotten past the stage, my fellow-citizens, when we are to be pardoned if we simply treat any part of our country as something to be skinned for two or three years for the use of the present generation, whether it is the forest, the water, the scenery; whatever it is handle it so that your children's children will get the benefit of it; handle it that way.⁹⁰

President Theodore Roosevelt, Grand Canyon, 1903. Courtesy of the National Park Service, https://www.nps.gov/media/photo/gallery-item.htm?pg=0&id=2883394D-155D-451F-67FDC8058C61049D&gid=288338D0-155D-451F-67FDA56599E7667E.

That is vision. That is wisdom. And that is leadership. Thus, when I eventually build the courage to take my kids to Grand Canyon in not too many years, there will be no mistaking the intention. It will be a trip about things that matter most—relations, identity, and trust.