LEWIS, Chief Judge, with whom HILL, Circuit Judge, joins, dissenting:
This case brings to the court the necessity of considering several aspects of the continuing controversy between two ideologies, each desirable when viewed in isolation but necessarily clashing in practical application. In particular, the subject matter of the case involves whether the national welfare is best served by maximum conservation and industrial utility of the waters of the Colorado River or whether the national interest requires a modified use so as to protect the natural environment of the area designated as the Rainbow Bridge National Monument. So stated, the issue is a classic one for congressional consideration and not for judicial determination. And since I firmly believe that the posture of the case itself does not bring the controversy within the orbit of judicial concern, I must dissent. A majority of the court is, however, in agreement that Congress has already performed its full function and has clearly indicated that the present national interest requires maximum potential industrial use of the water of Lake Powell as contained back of the Glen Canyon Dam. To reach this result the majority must and does hold that sections 1 and 3 of the Colorado River Storage Act of 1956 (43 U.S.C. § 620, et seq., Public Law 485, 84 Cong.2d Sess.) have been repealed by implication or so modified as to be impotent under the express wording of the statutes as they still exist in the law. But however viewed I consider the action of the majority to be a deep trespass upon the prerogatives of Congress and a clear and dangerous violation of the doctrine of separation of powers.
Section 1 of the cited Act provides:
That as part of the Glen Canyon Unit the Secretary of the Interior shall take adequate protective measures to preclude impairment of the Rainbow Bridge National Monument.
This section makes specific reference to the Rainbow Bridge National Monument but, as the main opinion recognizes, is completely severable in context from section 3, later discussed. However the majority places considerable emphasis upon the repeated refusal of Congress to provide funds for the Secretary of the Interior to implement section 1 as a supporting argument that section 3 has been repealed by implication. I do not agree. Congress authorizes many projects which die aborning from lack of funding or are not immediately implemented by funding. It is not for the courts to deny the validity of the statutory authorization simply from lack of funding. And that is particularly true in the case at bar. As pointed out in the main opinion, funding under section 1 has been specifically negated as to Rainbow Bridge Monument, to me a clear expression of Congress' recognition that section 1 is viable. The majority appears to recognize this in part and would seem to take some of the language contained in the appropriation acts as authority for holding that it is the present intent of Congress to protect only Rainbow Bridge and not the surrounding Monument area. In any event the decision breathes new life into protecting the Bridge proper and designates an allowable depth under the Bridge of fifty-five feet of water as the maximum to be tolerated, retaining jurisdiction for ten years apparently as guardian of the Bridge proper. Perhaps current events have persuaded the majority to impose this restriction. This year's run-off is extremely high and is now in progress. The capacity of Lake Powell has been or soon will be attained through the Glen Canyon Dam reaching its holding capacity. Water is now beneath the Bridge and is expected to reach a depth of forty-eight feet as estimated and the unexpected may occur. The protective order of the main opinion is understandable to me. But such extraordinary judicial action is without [p14] precedent and invades the legislative and administrative fields of authority. It is not for this court to say that the Bridge proper is to be protected from the waters of Lake Powell but that the Rainbow Bridge National Monument should not be so protected. Nor should this court volunteer to police the control of Lake Powell waters for a period of ten years or any other period for any purpose whatsoever, absent the necessity of using the injunctive power to enforce an act of Congress and then only under the most extraordinary circumstances. And I consider my views in this regard to be not only applicable to section 1 of the Act but also clearly applicable to section 3. 43 U.S.C. § 620b provides in pertinent part:
It is the intention of Congress that no dam or reservoir constructed under the authorization of this chapter shall be within any national park or monument.