Appendix — NAVAJO MEDICINE MEN'S ASSOCIATION v. BLOCK (No. 83-669)

, Office - Supreme Court, U.S.

838-669 FILED

OCT 21 1983

No. ALEXANDER L. STEVAS.,

CLERK

In the Supreme Court of the

United States

OCTOBER TERM, 1983

NAVAJO MEDICINEMEN’S ASSOCIATION, ef ai.

Petitioners,

VS.

JOHN R. BLOCK, Secretary of

Agriculture, ef ai,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI

John A. Mackinnon

Elizabeth S. Bernstein

NAVAJO NATION

Department of Justice

Post Office Drawer 2010

Window Rock, Arizona 86515

Telephone: (602) 871-6931

Attorneys for Petitioners

TABLE OF CONTENTS

APPENDIX “A”

APPENDIX “B”

APPENDIX “C”

APPENDIX “D”

APPENDIX “E”

APPENDIX “F”

APPENDIX “G”

Opinion of the Court of Appeals

Dated May 20, 1983 ..........00.0... l

Opinion and Order of the District

Court Dated June 12, 1981 and

NE 3, FIR cesitictccsisesaceemscnansin 51

Opinion and Order of the District

Court Dated May 14, 1982 ........ 93

Forest Supervisor's Decision

Dated February 27, 1979 .......... 103

Regional Forester’s Decision

Dated February 7, 1980 ............ 113

Chief Forester’s Decision

Dated December 31, 1980 ........ 133

Judgment of the Court of Appeals

Dated May 20, 1983 and Orders

Denying Rehearing and Rehear-

ing En Ba@ne .........ccccccscocsreccseess 147

APPENDIX “A”

Court of Appeals Opinion

Dated May 20, 1983

Anited States Court of Appeais

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 81-1905

RICHARD F. WILSON, ET AL., APPELLANTS

V.

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

No. 81-1912

THE HOPI INDIAN TRIBE, APPELLANT

2

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

No. 81-1956

NAVAJO MEDICINEMEN’S

ASSOCIATION, ET AL., APPELLANTS

Ws

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

2

No. 82-1705

NAVAJO MEDICINEMEN'’S

ASSOCIATION, ET AL., APPELLANTS

V.

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

No. 82-1706

THE HOPI INDIAN TRIBE, APPELLANT

V.

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

No. 82-1725

RICHARD F. WILSON and JEAN WILSON,

husband and wife, APPELLANTS

Vv.

JOHN R. BLOCK, SECRETARY OF AGRICULTURE, ET AL.

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil Action Nos. 81-00558, 81-00481 & 81-00493)

Argued October 15, 1982

Decided May 20, 1983

=

’ Me

‘

“> é

3

John Paul Kennedy, with whom David B Lee was on the

brief, for Hopi Indian Tribe, appellant in 81-1912 and 82-1706.

C. Benson Hufford, also entered an appearance for appellant,

in 81-1912. Richard M. Hymas, also entered an appearance for

appellant in 82-1705, 82-1706 and 82-1725.

John A. MacKinnon, with whom Elizabeth Bernstein and C.

Benson Hufford were on the brief, for Navajo Medicinemen's

Association, et al., appellants in 81-1956 and 82-1705. Danie!

S. Press, also entered an appearance for appellants in 81-1956.

C. Benson Hufford, also entered an appearance for appellants

in 82-1725.

Charles R. Work, with whom Robert W. Warden, Douglas J

Wall, John A. Hodges, and Robert A. Warden, were on the

brief, for Richard F. Wilson and Jean Wilson, appellants in

81-1905 and 82-1725, and amici curiae in 81-1912, 81-1956

and 82-1706.

Jacques B. Gelin, Attorney, Department of Justice, with

whom Patricia J. Beneke and Robert L. Kiarquist, Attorneys,

Department of Justice, were on the brief, for appellees. Robert

D. Clark, Attorney, Department of Justice, also entered an

appearance for appellees in 81-1905, 81-1912 and 81-1956.

Richard McCune Shannon and Stephen P. Kling were on the

brief for appellee, Northland Recreation Inc.

Ellen Leitzer was on the brief, for Eastern Bank of Cherokee

Indians, et al., amici curiae urging reversal in 81-1905, 81-1912

and 81-1956.

Before: TAMM and GINSBURG, Circuit Judges, and

LUMBARD,® Senior Circuit Judge, United States

Court of Appeals for the Second Circuit.

*Sitting by designation pursuant to 28 U.S.C. § 294(d).

4

Opinion for the Court filed by Senior Circuit Judge LUM-

BARD.

LUMBARD, Circuit Judge: These appeals challenge the grant

of summary judgment by the District Court for the District of

Columbia which affirmed the decisions of the Forest Service

and the Department of Agriculture to permit private interests to

expand and develop the government-owned Snow Bowl ski area

on the San Francisco Peaks in the Coconino National Forest

just north of Flagstaff, Arizona. The appeals are brought by the

Hopi Indian Tribe, the Navajo Medicinemen’s Association and

other Navajos, and Richard F. Wilson, et al. each of whom filed

separate suits which were consolidated for trial by Judge

Richey. We affirm.

The Navajo and Hopi Indian tribes are federally recognized

tribes of American Indians. The Hopi reservation and most of

the Navajo reservation are located in northeastern Arizona and

encompass a total area of 25,000 square miles. Approximately

9,000 Hopis and 160,000 Navajos reside on the reservations.

The dominant geological formation visible from the Hopi

villages and much of the western Navajo reservation is the San

Francisco Peaks. The Peaks, which rise to a height of 12,633

feet, have for centuries played a central role in the religions of

the two tribes. The Navajos believe that the Peaks are one of

the four sacred mountains which mark the boundaries of their

homeland. They believe the Peaks to be the home of specific

deities and consider the Peaks to be the body of a spiritual

being or god, with various peaks forming the head, shoulders,

and knees of a body reclining and facing to the east, while the

trees, plants, rocks, and earth form the skin. The Navajos pray

directly to the Peaks and regard them as a living deity. The

Peaks are invoked in religious ceremonies to heal the Navajo

people. The Navajos collect herbs from the Peaks for use in

religious ceremonies, and perform ceremonies upon the Peaks.

5

They believe that artificial development of the Peaks would

impair the Peaks’ healing power.

The Hopis believe that the Creator uses emissaries to assist in

communicating with mankind. The emissaries are spiritual

beings and are generally referred to by the Hopis as “Kachinas.”

The Hopis believe that for about six months each year, com-

mencing ir late July or early August and extending through

mid-winter, the Kachinas reside at the Peaks. During the

remaining six months of the year the Kachinas travel to the

Hopi villages and participate in various religious ceremonies

and practices. The Hopis believe that the Kachinas’ activities

on the Peaks create the rain and snow storms that sustain the

villages. The Hopis have many shrines on the Peaks and collect

herbs, plants and animals from the Peaks for use in religious

ceremonies. The Hopis believe that use of the Peaks for com-

mercial purposes would constitute a direct affront to the

Kachinas and to the Creator.

The San Francisco Peaks are within the Coconino National

Forest and are managed by the Forest Service. A 777 acre

portion of the Peaks, known as the “Snow Bowl,” has been

used for downhill skiing since 1937 when the Forest Service

built a road and ski lodge. The lodge was destroyed by fire in

1952 and was replaced in 1956. Ski lifts were built at the Snow

Bowl in 1958 and 1962. Since 1962 the facilities have changed

very little.

In April 1977 the Forest Service transferred the permit to

operate the Snow Bow! skiing facilities from Summit Properties,

Inc. to the Northland Recreation Company. In July 1977

Northland submitted to the Forest Service a “master plan” for

the future development of the Snow Bowl, which contemplated

the construction of additional parking and ski slopes, new lodge

facilities, and ski lifts. The Forest Service, pursuant to the

National Environmental Policy Act, conducted public work-

shops and solicited alternatives to Northland’s plan. The Forest

o

6

Service evaluated the proposed alternatives and identified six

which were feasible and represented the spectrum of public

opinion. These alternatives ranged from complete elimination

of artificial structures in the Snow Bow! to full development as

proposed by Northland. On June 23, 1978 the Forest Service

filed a draft Environmental Impact Statement evaluating the

six alternatives. Between June 23 and September 30, 1978 the

Forest Service solicited public opinion on the draft Environ-

mental Impact Statement. Special efforts were made to solicit

the views of the Hopis and Navajos.

On February 27, 1979 the Forest Supervisor of the Coconino

National Forest issued his decision to permit moderate develop-

ment of the Snow Bowl under a “Preferred Alternative,” which

in fact was not one of the six alternatives previously identified.

The Preferred Alternative envisions the clearing of 50 acres of

forest for new ski runs, instead of the 120 acres requested by

Northland. The Preferred Alternative also authorized construc-

tion of a new day lodge, improvement of restroom facilities,

reconstruction of existing chair lifts, construction of three new

lifts, and the paving and widening of the Snow Bowl road.

At the request of various persons, including certain of the

plaintiffs, the Regional Forester on February 7, 1980 over-

ruled the Forest Supervisor and ordered maintenattce of the

status quo. The Chief Forester on December 31, 1980 reversed

the Regional Forester and reinstated the Forest Supervisor’s

approval of the Preferred Alternative.

On March 2, 1981, the Navajo Medicinemen’s Association

filed suit in the District Court for the District of Columbia,

naming as defendants John R. Block, Secretary of Agriculture;

R. Max Peterson, Chief Forester of the Forest Service; the

Forest Service; and the United States. The complaint sought

a halt to further development of the Snow Bowl and the re-

moval of existing ski facilities. This suit was consolidated with

similar suits brought by the Hopi tribe and Jean and Richard

~)

Wilson, owners of a ranch located a mile and a half below the

Snow Bowl.

The plaintiffs alleged that expansion of the Snow Bowl

facilities would violate the Indians’ First Amendment right to

the free exercise of religion, the American Indian Religious

Freedom Act, the fiduciary duties owed the Indians by the

government, the Endangered Species Act, two statutes regu-

lating private use of national forest land (16 U.S.C. §§ 497,

551), the National Historic Preservation Act, the Multiple-Use

Sustained Yield Act, the Wilderness Act, the National Environ-

mental Policy Act, and the Administrative Procedure Act.

Pursuant to expedited procedures agreed to by all the parties,

numerous affidavits were submitted together with a Joint

Stipulation of Material Facts. The parties filed cross-motions

for summary judgment. While these motions were pending the

district court on May 27, 1981 permitted Northland to inter-

vene as a defendant. After a hearing, Judge Richey on June 15,

1981 granted summary judgment to the defendants on all issues

except the plaintiffs’ claim under the National Historic Preser-

vation Act. Finding that the Forest Service had failed to com-

ply with certain requirements of that Act, Judge Richey re-

manded the cause to the Forest Service for further proceedings

and stayed development until compliance. After the defendants

reported back, Judge Richey on May 14, 1982 ruled that the

Forest Service had achieved compliance and he entered final

judgment for the defendants on all issues and vacated his stay.

These appeals followed promptly and the defendants have

agreed to delay development pending their disposition.

From our review of the record we are convinced that Judge

Richey’s conclusions of law are in accordance with precedent

and not in error. Accordingly, we affirm the judgments. Our

opinion considers in detail the claims raised by the plaintiffs

under the following constitutional provisions and statutes:

the Free Exercise Clause, the American Indian Religious Free-

Fs 8

dom Act, the Establishment Clause, the Endangered Species

Act, the Wilderness Act, the National Historic Preservation Act,

and 16 U.S.C. §§ 497, 551.

& Free Exercise of Religion.

Religious freedom is guaranteed by the First Amendment,

which states: ‘Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise thereof.”

The Navajo and Hopi plaintiffs contend that development of

the Snow Bowl is inconsistent with their First Amendment

right freely to hold and practice their religious beliefs.' Be-

lieving the San Francisco Peaks to be sacred, they feel that

development of the Peaks would be a profane act, and an

affront to the deities, and that, in consequence, the Peaks

would lose their healing power and otherwise cease to benefit

the tribes. They contend that development would seriously

impair their ability to pray and conduct ceremonies upon the

Peaks, and to gather from the Peaks the sacred objects, such as

fir boughs and eaglets, which are necessary to their religious

practices. As relief, the Navajos and Hopis seek a phased re-

moval of all artificial structures on the Peaks, or, at the least,

an injunction against further development of the Snow Bowl.

Judge Richey, although he recognized the sincerity of the

plaintiffs’ beliefs, held that a First Amendment claim had not

been stated. He found that the government had not denied the

Indians access to the Peaks or impaired their ability to gather

sacred objects and conduct ceremonies, and thus had not

burdened their beliefs or religious practices. We agree with

Judge Richey that the plaintiffs have not shown an imper-

missible burden on religion.

liudge Richey properly ruled that Jean and Richard Wilson, who are

not Indians, did not have standing to assert the Navajo and Hopi religious

daims. See, ¢.¢., Singleton v. Wulff, 428 U.S. 106, 114 (1976), We have,

however, considered the Wilsons’ briefs on the religious claims as briefs of

amicus curiae.

9

To be protected by the Free Exercise Clause of the First

Amendment, a belief or practice must be “rooted in religion.”

Thomas v. Review Bd. of the Indiana Employment Sec. Div.,

450 U.S. 707, 713 (1981). The parties have stipulated that the

plaintiffs’ beliefs are religious and are sincerely held, and the

record contains abundant evidence supporting that stipulation.

We therefore proceed directly to apply the Free Exercise Clause

to the plaintiffs’ claims and the proof before us.

The Free Exercise Clause proscribes government action that

burdens religious beliefs or practices, unless the challenged

action serves a compelling governmental interest that cannot be

achieved in a less restrictive manner. See, e.g.. Badoni v. Higgin-

son, 638 F.2d 172, 176-77 (10th Cir. 1980), cert. denied, 452

U.S. 954 (1981), Barnerr v. Rodgers, 410 F.2d 995, 1000 (D.C.

Cir. 1969). The initial burden of proof in free exercise cases

is upon the plaintiff to demonstrate a burden upon religion.

See School Dist. of Abington v. Schempp, 374 U.S. 203, 22

(1963). Only if a burden is proven does it become necessary

to consider whether the governmental interest served is com-

pelling, or whether the government has adopted the least bur-

densome method of achieving its goal. In analyzing the plain-

tiffs contentions that the ski resort expansion will burden their

religions, we consider separately the effects of development

upon their beliefs and upon their religious practices.

The plaintiffs stress that development of the Snow Bow! for

a ski resort is grossly inconsistent with their beliefs. The Hopis

and the Navajos believe that they owe a duty to the deities to

maintain the San Francisco Peaks in their natural state. They

believe that breach of that duty will lead to serious adverse

consequences for their peoples. Navajo and Hopi religious

practitioners are deeply troubled by the development that

10

has already occurred upon the Peaks, and expansion of the

Snow Bow! will increase their disquiet.?

The First Amendment right to hold religious beliefs is abso-

lute. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). The

Free Exercise Clause “categorically prohibits government from

regulating, prohibiting, or rewarding religious beliefs as such.”

McDaniel v. Paty, 435 U.S. 618, 626 (1978). Notwithstanding

the plaintiffs’ concerns, it is clear that the government has not

regulated, prohibited, or rewarded their religious beliefs as such,

nor has it in any manner directly burdened the plaintiffs in their

beliefs. The Free Exercise Clause, however, also proscribes

certain indirect burdens on belief. Arguing that an impermis-

sible indirect burden has been imposed, the plaintiffs direct our

attention to Sherbert v. Verner. 374 U.S. 398 (1963) and

Thomas v. Review Board of the Indiana Employment Sec. Div.,

450 U.S. 707 (1981).

In Sherbert, the plaintiff, a Seventh-Day Adventist, was dis-

charged by her employer because she refused to work on

Saturday, the Sabbath Day of her faith. The South Carolina

Employment Security Commission refused the plaintiff's appli-

cation for unemployment benefits, finding that her religicus

convictions did not constitute “good cause” for refusing avail-

able work. The South Carolina Supreme Court upheld the

2The plaintiffs claim that further development of the Snow Bowl could

have a serious and adverse impact upon their tribes’ cultures and social

organization. Abbott Sekaquaptewa, then-chairman of the Hopi tribe,

stated in “Narrative Direct Testimony” submitted to the district court:

It is my opinion that in the long run if the expansion is permitted, we

will not be able successfully to teach our people that this is a sacred

place. If the ski resort remains or is expanded, our people will not

accept the view that this is the sacred Home of the Kachinas. The basis

of our existence as a society will become a mere fairy tale to our

people. If our people no longer possess this long-held belief and way of

life, which will inevitably occur with the continued presence of the ski

resort ... a direct and negative impact upon our religious practices [will

result]. The destruction of these practices will also destroy our present

way of life and culture.

1]

Commission’s determination. The Supreme Court reversed.

The fact that no criminal sanctions compelled the plaintiff to

violate her beliefs, said the Court, did not end the free exercise

inquiry. Instead, held the Court, the government burdens the

free exercise of religion when it conditions receipt of a govern-

ment benefit, such as unemployment compensation, on conduct

inconsistent with the recipient’s religious beliefs. In Thomas.

the plaintiff, a Jehovah's Witness, quit his job at a factory pro-

ducing tank turrets because he believed armaments production

to be inconsistent with his faith. The Indiana Supreme Court

held that the plaintiffs decision to quit employment because

of his religious convictions did not constitute “good cause” and

denied him unemployment benefits. The Supreme Court

reversed, holding, as it did in Sherberrt. that the government

burdens free «xercise when it forces an individual to choose

between a government benefit and fidelity to religious belief.

The Court stated:

Where the state conditions receipt of an important benefit

upon conduct proscribed by a religious faith, or where it

denies such a benefit because of conduct mandated by

religious belief, thereby putting substantial pressure on an

adherent to modify his behavior and to violate his beliefs,

a burden upon religion exists. While the compulsion may be

indirect, the infringement upon free exercise is nonetheless

substantial.

450 U.S. at 717-18.

Sherbert and Thomas are not factually analogous to the

present case. The government here has not conditioned any

benefit upon conduct proscribed or mandated by the plaintiffs’

beliefs. Acknowledging this factual distinction, the plaintiffs

read Sherbert and Thomas broadly as condemning under the

Free Exercise Clause governmental actions which strongly, if

indirectly, encourage religious practitioners to modify their

beliefs. Specifically, the plaintiffs argue that governmental

12

actions which “desecrate and destory the spiritual character of

a religion’s most sacred shrine” and which may thereby force

practitioners “to fundamentally modify their religious doctrine

to conform to the changed circumstance” create free exercise

burdens under Sherbert and Thomas. We disagree. Sherbert

and Thomas hold only that the government may not, by condi-

tioning benefits, penalize adherence to religious belief. Many

government actions may offend religious believers, and may cast

doubt upon the veracity of religious beliefs, but unless such

actions penalize faith, they do not burden religion. The Secre-

tary of Agriculture has a statutory duty, see, eg., 16 U.S.C.

§§ 471, 528 (1976) to manage the National Forests in the

public interest, and he has determined that the public interest

would best be served by expansion of the Snow Bow! ski area.

In making that determination, the Secretary has not directly

or indirectly penalized the plaintiffs for their beliefs. The con-

struction approved by the Secretary is, indeed, inconsistent

with the plaintiffs’ beliefs, and will cause the plaintiffs spiritual

disquiet, but such consequences do not state a free exercise

claim under Sherbert, Thomas. or any other authority.? In

sum, the plaintiffs have not shown that expansion of the Snow

Bowl will burden their freedom to believe. A separate question,

to which we now turn, is whether expansion will burden the

plaintiffs in the practice of their religions.

Spitlar of Fire v. Denver Urban Renewal Authority, 181 Colo. 411, 509

P.2d 1250 (1973), is not to the contrary. In Pillar of Fire, the plaintiff

church sought to enjoin condemnation by an urban renewal project of

its first permanent church building. The plaintiff alleged that its members

revered the building for its historical and symbolic meaning in the birth of

their sect. The Colorado Supreme Court held that the plaintiff was en-

titled to a court hearing at which its interests could be weighed against

those of the renewal authority. “(R)eligious faith and tradition,” said the

court, “can invest certain structures and land sites with significance which

deserves First Amendment protection.” 181 Colo. at 419, 509 P.2d at

1254. A governmental taking of privately owned religious property, how-

ever, involves different considerations than does a claimed First Amend-

ment right to restrict the government's use of its own land.

13

The plaintiffs must have access to the San Francisco Peaks

to practice their religions. Certain of the plaintiffs’ ceremonies

must be performed upon the Peaks and religious objects must

be collected there. Because the plaintiffs’ religions are, in this

sense, site specific, development of the Peaks would severely

impair the practice of the religions if it destroyed the natural

conditions necessary for the performance of ceremonies and the

collection of religious objects. The plaintiffs claim that the

Preferred Alternative will impair their religious practices in

precisely that manner. Few courts have considered whether the

Free Exercise Clause prohibits the government from permitting

land uses that impair specific religious practices. Of the cases

which have considered this problem, we find Sequoyah v. TVA,

620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980),

to be particularly instructive.

In Sequoyah, a class action brought on behalf of practi-

tioners of the Cherokee religion, the plaintiffs sought to halt

construction of the Tellico Dam on the Little Tennessee River.

The plaintiffs alleged that the dam, when completed, would

flood the Cherokee “sacred homelaid” along the river, and

would destory “‘sacred sites, medicine gathering sites, holy

places and cemeteries,” and “disturb the sacred balance of

the land.”” 620 F-2d at 1160. The Sixth Circuit affirmed a

grant of summary judgment to the defendant, ruling that the

plaintiffs, to establish a burden of free exercise, had to prove

that the valley to be flooded was indispensable or central to

their ceremonies and practices. The plaintiffs’ proof was insuf-

ficient, held the court, as the evidencéindicated that medicines

obtainable in the valley could be obtained elsewhere, and that

the flooding would not prevent the plaintiffs from engaging in

any particular religious observances.*

*Pour cases in addition to Sequoyeh have considered free exercise

Gaims seeking to restrict development of government land. In Badoni v.

Higginson, 638 F.2d 172 (\0th Cir. 1980), cert. denied, 452 U.S. 954

14

Judge Richey relied upon the Sequoyah analysis in the

present case, and held that the plaintiffs had failed to show the

indispensability of the Snow Bowl to the practice of their

religions. The plaintiffs challenge Judge Richey’s reliance upon

Sequoyah on two grounds. They argue first that Sherbert and

Thomas, and not Sequoyah, establish the standard applicable to

(1981), Navajo religious practitioners believed that the Rainbow natural

bridge, a great arch of sandstone located in the Rainbow Bridge National

Monument in Utah, was sacred. They complained that a government reser-

voir which had partially inundated the bridge had covered some of their

gods and prayer sites, and that the noisy tourists who visited the bridge

desecrated the site and made ceremonies impractical. As relief, the plain-

tiffs requested the court to order the government to lower the reservoir, to

issue regulations controlling tourist behavior, and on appropriate notice,

to close the monument to tourists so that ceremonies could be conducted.

The Tenth Circuit affirmed a district court decision denying relief. The

Tenth Circuit held that the government had a compelling interest in filling

the reservoir thai out weighed any First Amendment right the plaintiffs

might assert, and that closing the Monument, or restricting tourist behav-

ior, to accommodate the plaintiffs’ beliefs would violate the Establishment

Clause. Ruling as it did, the Tenth Circuit never considered in detail

whether the Free Exercise Clause can create a right to restrict government

land use. The decision in Badoni therefore offers little guidance here. In

Crow v. Guillet, 541 F.Supp. 785 (D.S.D. 1982), a class action on behalf

of the Lakota and Tsistsistas nations, and Lakota and Tsistsistas religious

practitioners, the plaintiffs objected to certain construction projects and

park regulations at the Bear Butte State Park in South Dakota. The plain-

tiffs alleged, inter alia, that Bear Butte was a significant site in their reli-

gions that would be desecrated by the access roads, parking lot, and view-

ing platforms that the state had built or was planning to build. The cis-

trict court denied relief, holding that “the free exercise clause places a

duty upon a state to keep from prohibiting religious acts, not to provide

the means or the environment for carrying them out.” 541 F. Supp. at

791. It is uncertain, however, whether the court believed that the Free

Exercise Clause can never restrict government land use, since the court

specifically noted that the piairtiffs had “failed to establish that particular

religious practices were damaged by the construction.” /d. In /nupist

Community of Artic Slope v. United States, 548 F. Supp. 182, 188-89

(D. Alaska 1962), the Inupiat people of Alaska brought suit to quiet

title to portions of the Beaufort and Chukchi Seas in which the United

States had issued oil leases. The plaintiffs claimed, inter alia, that develop-

ment would burden their right freely to practice their religion. The court

15

to their claim. They contend that governmental action which

indirectly imposes a burden upon religious practice greater than

the burdens involved in Sherbert and Thomas necessarily vio-

lates the First Amendment. Contending that the Snow Bow! ski

area effectively prohibits the practice of their religions, the

plaintiffs claim that their burden is greater than that of the

practitioners in Sherbert and Thomas. who, the plaintiffs say,

could have continued to practice their beliefs simply by choos-

ing to forego government benefits. However, as we previously

stated, Sherbert and Thomas considered only whether the gov-

ernment may legally condition benefits on a decision to forego

or to adhere to religious belief or practice. Those cases did not

purport to create a benchmark against which to test all indirect

burden claims. Second, the plaintiffs argue that Sequovah in-

correctly interpreted the First Amendment. They argue that

the First Amendment protects all religious practices, whether or

not “central,” and that courts are not competent to rule upon

the centrality of religious belief or practice. We agree that the

First Amendment protection of religion “does not turn on the

theological importance of the disputed activity,” Unitarian

Church West v. McConnell, 337 F. Supp. 1252, 1257 (E.D. Wis.

1972), affd.. 474 F.2d 1351 (7th Cir. 1973), vacated and

remanded on other grounds, 416 U.S. 932 (1974) and that

courts may not “dictate which practices are or are not required

in a particular religion.” Geller v. Secretary of Defense, 423 F.

Supp. 16, 17 (D.D.C. 1976). See Thomas, 450 U.S. at 715-16;

rejected the plaintiffs’ claim, finding that the plaintiffs had failed to show

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Clause in any

Protective Assoc. ov. Peterson, 552 F. Sup. 951 (ND. Calif. 1982), the

plaintiffs, claiming that their religious activities would be disrupted, sought

to enjoin the Forest Service from approving constructior of a road upon

land sacred to several Northwest indian tribes. The court held for the

defendants, and sated that the First Amendment does not obligate the

government “to contro! or limit public access to public lands in order to

facilitate” religious practices. 552 F. Supp. at 954

event barred relief. Finally, in Northwest Indian Cemetery

16

Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S.

696, 708-20 (1976). These principles, however, are not con-

trary to Sequoyah's analysis. Far from requiring judicial evalua-

tion of religious doctrine, Sequoyah focuses inquiry solely upon

the importance of the geographic site in question to the practice

of the plaintiffs’ religion. If the plaintiffs cannot demonstrate

that the government land at issue is indispensable to some

religious practice, whether or not central to their religion, they

have not justified a First Amendment claim. We agree with

Sequoyah's resolution of the conflict between the government's

property rights and duties of public management, and a piain-

til'f's constitutional right freely to practice his religion. We thus

hold that plaintiffs seeking to restrict government land use in

the name of religious freedom must, at a minimum, demon-

strate that the government’s proposed land use would impair a

religious practice that could not be performed at any other

site.

swe do not hold that such proof necessarily would establish a burden

on free exercise. Instead, we hold only that the First Amendment re-

quires, at a minimum, proof that the religious practice could not be per-

formed at any site other than that to be developed. Because we agree with

Judge Richey that the plaintiffs have not satisfied this minimum burden of

proof, we need not consider what, if any, additional factors are necessary

to establish a free exercise burden. At the same time, we decline to follow

those cases which have piaced primary reliance upon the government's

property interest and which have held, apparendy, that the Free Exercise

Clause can never supersede the government's ownership rights and duties

of public management. See Crow v. Guillet, 541 F. Supp. 785, 791 (D.S.D.

1982); Northwest Indian Protective Cemetery Assoc. vo. Peterson, 552 F.

Supp. 951, 954 (N.D. Calif. 19862). The government must manage its land

in accordance with the constitution, Bedoni v. Higginson, 638 F.2d 172,

176 (10th Cir. 1980), cert. denied, 452 US. 954 (1981); Sequoyes v.

TVA, 620 F.2d 1159, 1164 (6th Cir. 1980), cert. denied, 449 US. 935

(1980), which nowhere suggests that the Free Exercise Clause is inappii-

cable to government land. This is not to say that the government's proper-

17

The plaintiffs argue that their proof establishes a denial of

First Amendment rights even under the above standard. They

rely principally upon the affidavits submitted by Hopi and

Navajo religious practitioners, which establish that ceremonies

conducted upon the Peaks are indispensable to the plaintiffs’

religions; that ceremonial objects must be collected from the

Peaks to be effective; that some ceremonial objects and medici-

nal herbs are collected from the Snow Bowl, and that expansion

of the ski area could make those objects and herbs more diffi-

cult to find; that ceremonies and prayers have occasionally been

conducted in the Snow Bowl, but that expansion of the ski area

will destroy the natural conditions necessary for prayers and

ceremonies to be effective; and that the mountain as a whole,

and not just parts thereof, is considered sacred.

The plaintiffs’ affidavits, together with other evidence in the

record, establish the indispensability of the Peaks to the prac-

tice of the plaintiffs’ religions. The Forest Service, however, has

not denied the plaintiffs access to the Peaks, but instead permits

them free entry onto the Peaks and does not interfere with their

ceremonies or the collection of ceremonial objects. At the same

time, the evidence does not show the indispensability of that

small portion of the Peaks encompassed by the Snow Bowl

permit area. The plaintiffs have not proven that expansion of

the ski area will prevent them from performing ceremonies or

collecting objects that can be performed or collected in the

Snow Bowl but nowhere else. The record evidence is, in fact,

to the contrary. The Forest Service's Final Environmental

Statement found, on the basis of comments submitted by Hopi

and Navajo practitioners, that “religious practices, including

collecting plant materials, may occur in many locations on the

sacred mountain.” The government submitted affidavits from

two experts on Hopi and Navajo religion. One expert stated

significantly impaired, we pay due regard to the government's rights and

duties in its land. However, we see no basis for completely exempting

government land use from the Free Exercise Clause.

18

that expansion of the Snow Bowl should have little “direct’’

impact on the plaintiffs’ religious practices; the other stated

with respect to Hopi practices that “(g)uarantee of access to

the mountain should permit the continuation of all essential

ritual practices,” and with respect to Navajo practices that

“(n)o ceremonial items . . . are found only in the permit area.”

It must be remembered that the Snow Bowl permit area com-

prises only 777 of the 75,000 acres of the Peaks, and that prior

construction on the Peaks has not prevented the plaintiffs from

practicing their religions. Judge Richey found that “the Snow

Bowl operation has been in existence for nearly fifty years and

it appears that plaintiffs’ religious practices and beliefs have

managed to coexist with the diverse developments that have

occurred there.” (footnote omitted). The plaintiffs simply have

not demonstrated that development will prevent them from

engaging in any religious practices.’

6 mong the structures currently on the Peaks are natural gas, tele-

phone, and electric transmission lines, water tanks for stock, unpaved

roads, and the present Snow Bow! ski resort. Cinder extraction and min-

ing have been conducted on the Peaks for at least the past 30 years.

"The plaintiffs urge that Judge Richty erred in granting the defen-

dants summary judgment because material issues of fact were in dispute.

They argue that when Judge Richey granted summary judgment the

parties still disputed the effect development would have upon the piain-

tiffs’ religions. We conclude, however, that in light of the case's proce-

dural posture judgment was properly granted. On May 20, 1981, the par-

ties filed with the district court a Joint Stipulation of Material Facts

(supplemented on June 1, 1981). Although the stipulated facts did not

dispose of one crucial factual issue—the indispensability of the permit

area to the practice of the plaintiffs’ religions—they did establish many of

the principal facts underlying the plaintiffs’ claim. The parties supple-

mented the stipulated facts with numerous affidavits concerning the

religious significance of the Snow Bowl. The parties filed with their

affidavits cross-motions for summary judgment which were argued before

Judge Richey. When Judge Richey asked counsel for the Hopis whether

the plaintiffs had “any reservations about the Court deciding this on the

merits by virtue of stipulation and the affidavits,” he replied, “Not at all,

Your Honor.” We thus find that the plaintiffs agreed to the disposition

19

As the plaintiffs have not shown that development will

burden them in their religious beliefs or practices, we need not

decide whether the ski area expansion is a compelling govern-

mental interest, or whether the Preferred Alternative is the least

restrictive means of achieving that interest.

2. American Indian Religious Freedom Act.

The American Indian Religious Freedom Act, 42 U.S.C. §

1996 (Supp. [IV 1980) (AIRFA), provides:

On and after August 11, 1978 it shall be the policy of

the United States to protect and preserve for American

Indians their inherent right of freedom to believe, express,

and exercise the traditional religions of the American

Indian, Eskimo, Aleut, and Native Hawaiians, including but

not limited to access to sites, use and possession of sacred

objects, and the freedom to worship through ceremonials

and traditional rites.

The plaintiffs contend that AIRFA proscribes all federal land

uses that conflict or interfere with traditional Indian religious

beliefs or practices, unless such uses are justified by compelling

of this claim on the written record. As the Ninth Circuit stated in Gil-

lespie v. Norris, 231 F.2d 881, 883-84 (9th Cir. 1956):

Now, while summary judgment cannot be granted where there are

questions of fact to be disposed of, even by consent of all concerned,

there is no reason why parties cannot agree to try a case upon affida-

vits, admissions and agreed documents. In effect, that is what was

done here. No objection whatever was made at the time of submis-

sion that there were questions of fact which could not be decided

upon the evidence before the trial court.

Accord, Starsky v. Williams, 512 F.2d 109, 111-13 (9th Circ. 1975).

Upon his review of the written record, Judge Richey found that the

plaintiffs had not “shown that the permit area of the San Francisco

Peaks is central or indispensable to their religion.” This finding is not

dearly erroneous and, indeed, is not significantly refuted by any evidence

in record. We must emphasize that evidence that all of San Francisco

Peaks, including the Snow Bowl, is sacred, does not establish the indispen-

sability of the permit area.

20

governmental interests. They argue that the Snow Bow! ski

resort expansion is not a compelling governmental interest, and

is accordingly proscribed by AIRFA. Judge Richey refused to

give AIRFA the broad reading urged by plaintiffs. He found

that AIRFA requires federal agencies to evaluate their policies

and procedures with the aim of protecting Indian religious

freedom, to refrain from prohibiting access, possession and use

of religious objects and the performance of religious cere-

monies, and to consult with Indian organizations in regard to

proposed actions, but that AIRFA does not require “Native

traditional religious considerations always [to] prevail to the

exclusion of all else.” We agree. Judge Richey’s interpretation

of AIRFA® is fully supported by the legislative history, and the

record supports his finding of Forest Service compliance.

AIRFA affirms the protection and preservation of tradi-

tional Indian religions as a policy of the United States, but the

statutory language does not indicate the extent to which Con-

gress intended that policy to override other land use consider-

ations. We therefore look for guidance to the legislative history,

and, in particular, to the substantially identical committee

reports prepared by the Senate Select Committee on Indian

Affairs and the House Committee on Interior and Insular

Affairs. These reports reveal that in AIRFA Congress addressed

the unwarranted and often unintended intrusions upon Indian

religious practices resulting from federal officials’ ignorance and

the inflexible enforcement of laws and regulations which,

though intended to achieve valid secular goals, had directly

affected Indian religious practices. The reports identify three

areas of concern: (1) denial of access to religious sites; (2)

restrictions on the possession of such substances as peyote; and

Siudge Richey’s decision marked the first judicial interpretation of

AIRFA. Courts in only two other circuits have since construed AIRFA,

and both followed Judge Richey’s interpretation. Northwest Indian Ceme-

tery Protective Assoc. v. Peterson, 552 F. Supp. 951, 954 (N.D. Calif.

1982); Crow v. Gullett, 541 F. Supp. 785, 793-94 (D.S.D. 1982).

.

“a4

-

eer

. re

21

(3) actual interference with religious events. The federal gov-

ernment, the reports note, had sometimes denied Indians access

to religious sites on federal land; had failed to accommodate

such federal statutes as the drug and endangered species laws to

the Indians’ religious needs, and had itself interfered, or permit-

ted others to interfere, with religious observances. See S. Rep.

No. 709, 95th Cong., 2d Sess. 24; H.R. Rep. No. 1308, 95th

Cong., 2d Sess. 2-3, reprinted in 1978 U.S. Code Cong. & Ad.

News 1262, 1263-64. Thus, the House Report stated that the

purpose of AIRFA is-“to insure that the policies and procedures

of various Federal agencies, as they may impact upon the

exercise of traditional Indian religious practices, are brought

into compliance with the constitutional injunction that Con-

gress shall make no laws abridging the free exercise of reli-

gion.” H.R. Rep. No. 1308, supra, at 1, 1978 U.S. Code Cong.

& Ad. News at 1262.

It is clear from the reports, and from the statutory pre-

amble, that AIRFA requires federal agencies to learn about, and

to avoid unnecessary interference with, traditional Indian

religious practices. Agencies must evaluate their policies and

procedures in light of the Act’s purpose, and ordinarily should

consult Indian leaders before approving a project likely to

affect religious practices. AIRFA does not, however, declare

the protection of Indian religious practitioners a veto on agency

action. “The clear intent of [AIRFA],” the Senate report

states, “is to insure for traditional native religions the same

rights of free exercise enjoyed by more powerful religions.

However, it is in no way intended to provide Indian religions

with a more favorable status than other religions, only to insure

that the U.S. Government treats them equally.” S. Rep. No.

709, supra, at 6. The comments made during debate by Repre-

sentative Udall of Arizona, the chairman of the Interior and

Insular Affairs Committee and the sponsor of the House bill,

similarly indicate that AIFA does not supersede the many

———————————————S—e eee

pie)

laws under which federal lands are managed for the public

good. Representative Udall stated:

Mr. Speaker, it is not the intent of my bill to wipe out

laws passed for the benefit of the general public or to confer

special religious rights on Indians.

ta

Mr. Speaker, I have received a letter from Assistant

Attorney General Patricia M. Wald which . . . states that it

is the Department’s understanding that this resolution, in

and of itself, does not change any existing State or Federal

law. That, of course, is the committee’s understanding and

intent.

124 Cong. Rec. 21,444 (1978).

All this simple little resolution says to the Forest Ser-

vice, to the Park Service, to the managers of public lands is

that if there is a place where Indians traditionally congre-

gate to hold one of their rites and ceremonies, let them

come on unless there is some overriding reason why they

should not.

* e+; 2 @

(The resolution) simply says to our managers of public

lands that they ought to be encouraged to use these places.

It has no teeth in it. It is the sense of the Congress.

Id. at 21,445.

Thus AIRFA requires federal agencies to consider, but not

necessarily to defer to, Indian religious values. It does not pro-

hibit agencies from adopting all land uses that conflict with

traditional Indian religious beliefs or practices. Instead, an

agency undertaking a land use project will be in compliance

with AIRFA if in the decision-making process, it obtains and

considers the views of Indian leaders, and if, in project imple-

mentation, it avoids unnecessary interference with Indian

religious practices. This court’s recent decision in New Mexico

23

Navajo Ranchers Assoc. v. ICC, (D.C. Cir. Slip Op. March 1,

1983) (per curiam), indicates that agencies will not be permit-

ted to ignore their AIRFA duties. There, this court remanded

for further consideration the ICC's approval of a rail line to be

built across northwestern New Mexico because the ICC had

failed properly to consider, inter alia, evidence that the railroad

permittee would not fulfill its promise to protect Navajo sacred

sites along the right-of-way.

Finally, we find that the Forest Service complied with

AIRFA in the present case. Before approving the Preferred

Alternative the Forest Service held many meetings with Indian

religious practitioners and conducted public hearings on the

Hopi and Navajo reservations at which practitioners testified.

The views there expressed were discussed at length in the Final

Environmental Statement and were given due consideration in

the evaluation of the alternative development schemes proposed

for the Snow Bow!. Development of the Snow Bowl under the

Preferred Alternative will not deny the plaintiffs access to the

Peaks, nor will it prevent them from collecting religious objects.

The Forest Service has not burdened the plaintiffs’ religious

practices in any manner prohibited by AIRFA.

3. Establishment Clause.

Judge Richey held that to grant the plaintiffs the relief they

request would violate the Establishment Clause of the First

Amendment. We think it unnecessary to reach that issue. As

neither the Free Exercise Clause nor AIRFA entitles the plain-

tiffs to relief, we have no reason to consider whether relief is

barred by a separate constitutional provision. We note, more-

over, that where governmental action violates the Free Exer-

cise Clause, the Establishment Clause ordinarily does not bar

judicial relief. See, ¢.g.. Wisconsin v. Yoder, 406 U.S. 205,

220-21 & 234 n.22 (1972); Sherbert v. Verner, 374 U.S. 398,

409 (1963).

4. Endangered Species Act

The plaintiffs claim that the Forest Service violated section

7(aX2) of the Endangered Species Act, 16 U.S.C. § 1536 (a){2)

(Supp. IV. 1980), by failing to insure that the Preferred Alter-

native wil] not be likely to jeopardize the continued existence

on the Peaks of a small yellow-flowered plant called senecio

franciscanus, or the “San Francisco Peaks groundsel.” Senecio

franciscanus exists only in an elongated area of approximately

2.6 square kilometers at the top of the Peaks. This elongated

area extends into the Snow Bowl permit area. As an alpine

plant, senecio franciscanus is particularly susceptible to damage

from human activity. The plant’s population, once reduced by

human activity, would not recover for decades or even cen-

turies. The approved development will extend into a small

portion of the piant’s habitat and will destory a small number

of the plants. The greatest threat to the plant’s continued

existence, however, is posed not by construction, or by skiers,

but by summer hikers who walk off-trail and trample the

fragile plants. Expansion of the ski lifts will significantly in-

crease the threat to the plant by allowing a greater number of

hikers to reach its habitat.

On June 16, 1976 the Secretary of the Interior proposed

senecio franciscanus for formal listing as an endangered species

under section 4 of the Endangered Species Act of 1973, 16

U.S.C. § 1533. Section 4 requires the Secretary to publish in

the Federal Register a list of those species determined by him

or by the Secretary of Commerce to be endangered or threaten-

ed within the meaning of the Act. The Endangered Species Act

amendments of 1978 required the withdrawal of all listing

proposals over two years old. A one year grace period was

extended to proposals already over two years old. On Decem-

ber 10, 1979 the Secretary withdrew the proposal to list senecio

franciscanus because no action had been taken on the proposal

since its submission. At the time the plaintiffs commenced this

suit senecio franciscanus was neither listed nor proposed for

ie 7 4 *

25

Section 7(aX2) of the Endangered Species Act requires

each federal agency, with the assistance of the Secretary, to

insure that its actions are not likely to jeopardize the continued

existence of any endangered or threatened species. Section

7(aX 2) provides:

Each Federal agency shall, in consultation with and

with the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency . . . is not

likely to jeopardize the continued existence of any endar-

gered species or threatened species or result in the destruc-

tion or adverse modification of habitat of such species

which is determined by the Secretary, after consultation as

appropriate with affected States, to be critical .. . In ful-

filling the requirements of this paragraph each agency shall

use the best scientific and commercial data available.

Section 7(aX(2) requires an agency, prior to project implemen-

tation, formally to consult the Secretary about any agency

action that might affect a protected species. Section 7(b),

16 U.S.C. § 1536(b), requires the Secretary to provide to an

agency that consults him under section 7(a)2) a written opin-

ion indicating how the agency's proposed action would affect

the protected species and identifying means of protecting the

species. The Forest Service has not formally consulted the

Secretary about senecio franciscanus. and it has not obtained

the written opinion required by section 7(b). The plaintiffs’

claim would therefore have merit if section 7(a)(2) in fact pro-

tected senecio franciscanus. We, however, agree with Judge

Richey, who held that § 7(a)(2) applies only to species listed

pursuant to section 4, and hence had no application to the

unlisted senecio franciscanus.

To support their argument that § 7(aX2) protects all en-

dangered or threatened species, whether or not listed, the

plaintiffs make four principal points. First, they point out that

§ 7(aX2) refers to “any endangered species or threatened

26

species,” (emphasis supplied), and does not, unlike many other

sections of Act, see, e.g. §§ 7(aX1), (cM 1), 16 U.S.C. §§ 1536

(a1), (ch 1), specifically refer to species which are “listed” or

“proposed to be listed.” Second, they note that § 7a(2)’s refer-

ence to “endangered .. . or threatened species” does not incor-

porate a listing requirement because the statutory definitions of

“endangered species” and “threatened species” do not mention

listing.? Third, they draw attention to the difference between

the 1973 and the 1978 versions of section 7. As enacted in

1973, section 7 in a single clause required federal agencies to

carry out “programs for the conservation of endangered species

and threatened species listed pursuant to section 1533” and to

insure that agency actions did not jeopardize the continued

existence “of such endangered species and threatened species.”

(emphasis supplied). The 1978 amendments to the Endangered

Species Act divided that clause into two sentences. In the first

sentence Congress again required agencies to conduct programs

for the preservation of “listed” species, and in the second sen-

tence again required agencies to insure the continued existence

of endangered and threatened species. However, the amended

section 7, in contrast to the original, did not, in restricting

agency action, directly or indirectly refer to “listed” species.

Instead, the 1978 amendments changed the word “such” in the

original statute to “any” and required agencies to insure the

existence of “any endangered species or threatened species.”

Finally, the plaintiffs note that in 1979 both houses of Congress

considered proposed amendments to the Act which, inter alia,

would have added an explicit listing requirement to § 7(a)(2).

See S. 1143, 96th Cong., Ist Sess. § 6(a) (1979), 125 Cong.

916 U.S.C. § 1532(6) defines “endangered species” as “any species

which is in danger of extinction throughout all or a t portion of

its range other than [certain insects].” 16 U.S.C. 9 1536(20) defines

“threatened species” as “any species which is likely to become an endan-

gered species within the foreseeable future throughout all or a significant

portion of its range.”

—

27

Rec. $7557 (daily ed. October 24, 1979). Although Congress

did amend the Endangered Species Act in 1979, it did not

amend § 7(aX2) to include a specific listing requirement.

The plaintiffs claim that their points prove that Congress

intended the 1978 amendments to extend § 7 protection to

unlisted species.!° The legislative history, however, strongly

indicates that Congress had no such intent. In its report on the

1978 amendments, the House Committee on Merchant Marine

and Fisheries stated:

The protections provided to animal and plant species

threatened with extinction are activated by the listing of

a species as “endangered” or “threatened.”

H.R. Rep. No. 1625, 95th Cong., 2nd Sess. 5, reprinted in 1978

U.S. Code Cong. & Ad. News, 9453, 9455. The House report

further states: “The mandate of section 7 applies once a species

is listed.” /d., at 7, 1978 U.S. Code Cong. & Ad. News at 9458.

These statements, it is true, are contained in a section of the

committee report that summarizes the operation of the 1973

Act, and thus are not direct evidence of Congress’ intent regard-

ing the 1978 amendments. That portion of the committee

report which does discuss the effect of the 1978 amendments,

see Id. at 19-25, 1978 U.S. Code Cong. & Ad. News at 9469-75,

however, contains no indication that in amending section 7

Congress intended to broaden its coverage to protect species

not protected by the 1973 Act. Instead, Congress principally

10rhe plaintiffs’ final point—Congress’ failure in 1979 to amend § 7

(a)(2) to refer specifically to listed or proposed species— adds little to their

Congress in 1979 clearly believed that § 7(a)(2) applied only

to listed species. See the discussion m/ra. Thus the proposed amendments

; § 7(a)(2) were intended not to edd a listing requirement, but to extend

7

for the first time, to species only proposed for listing. Al-

protection,

though Congress did not amend § 7(a)(2) in this respect, it did protect

proposed species by adding § 7(a)(3) to the Act. See H.R. Cong. Rep. No.

697, 96th Cong., Ist Sess. 15, reprinted in 1979 U.S. Code Cong. & Ad.

News 2572, 2576.

28

intended in amending section 7 to define procedures that would

facilitate agency compliance with the section and to establish a

mechanism by which agencies could, in appropriate cases, be

exempted from the section. Comments made in connection

with the 1979 amendments are also significant. The Committee

on Merchant Marine and Fisheries states in its report on the

1979 amendments: “The mandate of section 7 applies once a

species is listed or once ‘critical habitat’ is designated for any

listed species.” H.R. Rep. No. 167, 96th Cong., Ist Sess. 5,

reprinted in 1979 U.S. Code Cong. & Ad. News 2557, 2561

(1979). The House Conference Report on the amendments

states:

The conferees note that the purpose of a listing proposal

is to determine whether a species is endangered or threaten-

ed and should be listed as such. The protections of Section

7 should not. apply until a species has been formally listed.

H.R. Conf. Rep. No. 697, 96th Cong., Ist Sess. 13, reprinted in

1979 U.S, Code Cong. & Ad. News 2572, 2577. We are aware

that subsequent legislative history is not controlling evidence of

the intent underlying previously enacted legislation. See Con-

sumer Product Safety Comm. v. GTE Sylvania, Inc., 447 US.

102, 118 n.13 (1980). Nonetheless, we think that the 1979

committee and conference reports are entitled to significant

weight in interpreting the effect of the 1978 amendment of

section 7. Those reports were close in time to the 1978 amend-

ments, and their interpretation of amended section 7 is consis-

tent with the view apparent from the 1978 House report.

The structure of the Endangered Species Act confirms

that § 7(a)(2) applies only to listed species. Of particular

significance is the centro! role played by the Secretary of the

Interior in the administration of the Act.'! Section 4 requires

11 the Secretary of Commerce also has significant duties under the

Act. Here, however, we are concerned only with the duties of the Secre-

tary of the Interior.

ee ee

29

the Secretary to determine by regulation which species are

endangered or threatened, to publish a list of such species, and

periodically to review the list for necessary changes. Section 5,

16 U.S.C. § 1534, authorized the Secretary to acquire land for

the protection of listed species and other plants and wildlife.

Section 6, 16 U.S.C. § 1535, authorizes the Secretary to enter

into agreements with the states to achieve the purposes of the

Act. Section 7(b), as previously noted, requires the Secretary

to advise agenices that consult him under § 7(aX2) on means

of protecting covered species. These provisions show that

under the Act the Secretary has primary responsibility to

research the status of different species, to list those species that

are in need of protection, and to act for the preservation of

listed species. Thus it would be anomalous to construe § 7(a)

(2) as requiring each federal agency, regardless of its inexpertise

in matters of environmental protection or wildlife conservation,

to decide for itself whether any of the species its proposed ac-

tion would affect is endangered or threatened. It is more logical

to conclude that § 7(aX2) requires an agency, in consultation

with the Secretary, to assess the impact of proposed agency ac-

tion upon a listed species and to develop plans for the species’

protection.!?

We also note that the plaintiffs’ interpretation of § 7(a\(2)

would make a nullity of § 7(aX(3), 16 U.S.C. § 1536(aX3),

which requires each agency to consult the Secretary “on any

12the plaintiffs daim that individual federal agencies are qualified to

decide whether the species their actions will affect are endangyred or

threatened. They rely upon that provision of § 7(a)(2) which states: “In

fulfilling the requirements of this paragraph each agency shall use the best

scientific and commercial data available.” That language, the plaintiffs

argue, requires agencies to use the best available data to determine species

status. We think it dear, however, that the quoted language serves only

to define the nature of an agency's duties once a listed species

has brought § 7(a)(2) into play.

30

agency action which is likely to jeopardize the continued exis-

tence of any species proposed to be listed.” Section 7(d), 16

U.S.C. 1536(d), prohibits an agency, pending the completion

of a § 7(aX2) consultation about a listed species, from making

any “‘irretrievable commitment of resources” which would fore-

close the formulation or implementation of any reasonable

alternative for species protection that the Secretary might sug-

gest under § 7(b). In contrast, § 7(a3), concerning proposed

species, explicitly states that the consultation it requires does

not include the § 7(d) limitation on the commitment of re-

sources. The plaintiffs, however, would extend § 7(a)(2) pro-

tection, including the § 7(d) limitation, to all vulnerable

species, whether or not listed or proposed for listing. They

would thus extend to species not proposed for listing greater

protection than § 7(a)(3) grants to proposed species. The

plaintiffs’ interpretation would make irrelevant the protection

afforded by § 7(aX3) and would violate the basic rule of statu-

tory construction that courts should, if possible, give effect to

every word used by Congress. See. e.g., Reiter v. Sonotone

Corp., 442 U.S. 330, 339 (1979); Symons v. Chrysler Corp.

Loan Guarantee Bd., 670 F.2d 238, 242 (D.C. Cir. 1981). For

these reasons we conclude that to be protected under § 7(aX2)

a species must be listed under § 4.

The plaintiffs claim that if listing is required under § 7(a)

(2), we should treat senecio franciscanus as if it were listed.

They rely upon the Forest Service’s recognition in the Final

Environmental Statement that the Preferred Alternative

threatens the plant, and upon the fact that the Fish and Wildlife

Service, since at least 1976, has been aware of the plant’s vul-

nerability. They contend that the Secretary’s failure formally

to list the plant since 1976 constitutes unreasonable delay and

a violation of the statutory mandate “to halt and reverse the

trend towards species extinction, whatever the cost.” TVA v.

Hill, 437 U.S. 153, 184 (1978). We agree with Judge Richey

31

that there is no evidence of such bad faith or unreasonable con-

duct on the part of the Secretary as would warrant an injunc-

tion against the United State ordering the listing of senecio

franciscanus.

On November 22, 1982, approximately one month after we

heard argument, the Secretary, through the Fish and Wildlife

Service, proposed senecio franciscanus for listing as a threatened

species. 47 Fed. Reg. 52,483 (1982). Because senecio francis-

canus is now proposed for listing, § 7(a)(3) (discussed above)

requires the Forest Service to consult the Secretary about the

possible impact of the Preferred Alternative upon the plant. We

do not think it necessary to remand this case to the district

court to insure Forest Service compliance with § 7(a)(3). Sec-

tion 7(a)(3) does not incorporate the § 7(d) limitation on

commitment of resources and thus does not prohibit develop-

ment until consultation is completed. More important, we have

no reason to believe that the Forest Service has not, or will not,

comply with § 7(a)(3). The record indicates that appropriate

measures can be taken to minimize the danger to senecio fran-

ciscanus. We are confident that the Forest Service will, in good

faith, implement such measures.

5. Wilderness Act.

On May 2, 1979 President Carter, on the advice of the

Secretary of Agriculture, recommended to Congress that it

designate as wilderness under the National Wilderness Preser-

vation System Act of 1964, 16 U.S.C. §§ 1131-36 (1976),

some 14,650 acres of the San Francisco Peaks. Congress has

not yet acted upon that recommendation. The area recom-

mended for wilderness designation abuts the Snow Bowl permit

area on the north, south, and east, but includes no part of the

permit area. A substantial part of the permit area is still un-

developed; in particular, a strip of land approximately 500 feet

wide along the area’s northern border, adjacent to the recom-

mended wilderness area, remains heavily forested. Under the

32

Preferred Alternative that strip of land will be partially develop-

ed for skiing. The plaintiffs contend that the Secretary of

Agriculture, in approving development of pristine land adjacent

to a recommended wilderness area, infringed Congress’ exclu-

sive authority to determine wilderness area boundaries. The

plaintiffs base their claim upon § 3(b) of the Wilderness Act,

16 U.S.C. § 1132(b) (1976), and argue that the Secretary may

not, by authorizing expansion of the ski area, impair Congress’

discretion to include undeveloped portions of the Snow Bowl in

the San Francisco Peaks wilderness area. As Judge Richey

found, the plaintiffs’ claim is without merit.

Section 1132(b) authorized the President to recommend for

inclusion in designated wilderness areas lands contiguous to

areas formerly designated as “primitive” by the Secretary of

Agriculture. It provides:

The Secretary of Agriculture shall, within ten years after

September 3, 1964, review, as to its suitability or nonsuita-

bility for preservation as wilderness, each area in the nation-

al forests classified on September 3, 1964 by the Secretary

of Agriculture or the Chief of the Forest Service as “primi-

tive” and report his findings to the President. The President

shall advise the United States Senate and House of Repre-

sentatives of his recommendations with respect to the

designation as “wilderness” or other reclassification of each

area on which review has been completed . . . Each recom-

mendation of the President for designation as “wilderness”

shall become effective only if so provided by an Act of

Congress . .. Any [primitive] area may be increased in size

by the President at the time he submits his recommenda-

tions to the Congress by not more than five thousand acres

with no more than one thousand two hundred and eighty

acres of such increase in any one compact unit; if it is pro-

posed to increase the size of any such area by more than

five thousand acres or by more than one thousand two

33

hundred and eighty acres in any one compact unit the

increase in size shall not become effective until acted upon

by Congress. Nothing herein contained shall limit the

President in proposing, as part of his recommendations to

Congress, the alteration of existing boundaries of primitive

areas or recommending the addition of any contiguous area

of national forest lands predominantly of wilderness value.

(emphasis supplied).

In Parker v. United States, 448 F.2d 793, 797 (10th Cir.

1971), cert. denied, 405 U.S. 989 (1972), the Tenth Circuit

held that the italicized language reflects “the clear intent of

Congress . . . that both the President and the Congress shall have

a meaningful opportunity to add contiguous areas predomi-

nantly of wilderness value to existing primitive areas for final

wilderness designation.” A “meaningful opportunity” can

be preserved only if lands within the ambit of § 1132(b) remain

undeveloped until such time as the President and Congress act.

Thus in Parker, the Tenth Circuit affirmed a district court order

enjoining the Secretary from authorizing lumbering of certain

virgin land contiguous to a primitive area, where the President

and Congress had not yet considered whether to designate the

_land in question as wilderness.

Parker indicates that § 1132(b) can restrict the Secretary’s

discretion to approve development of wilderness land contig-

uous to a designated primitive area. The defendants, however,

contend that § 1132(b) does not apply to national forest land

which is neither contained in nor contiguous to a primitive

area, and that the plaintiffs’ claim must therefore fail, as neither

the Snow Bowl permit area nor any other part of the San Fran-

cisco Peaks has ever been designated primitive. We agree.

The clear focus of the statutory language is upon the Secre-

tary’s duties with respect to primitive areas. A brief review of

34

the statute’s background confirms that the statute has no

broader application. In 1929 the Secretary of Agriculture, by

regulation, established procedures for the designation of primi-

tive areas in national forests. The 1929 regulation was super-

seded in 1939 by new regulations which authorized the Secre-

tary of Agriculture to designated wilderness areas in excess of

100,000 acres and the Chief of the Forest Service to designate

wild areas of between 5,000 and 100,000 acres. The Secretary

of Agriculture then reviewed the 73 primitive areas designated

between 1929 and 1939 to determine which should be desig-

nated in whole or in part as wilderness or wild areas. By 1964,

when Congress considered legislation to create a statutory

scheme for the protection of wilderness lands, 18 tracts of

national forest land had been designated as wilderness areas,

35 as wild areas, and 34 remained in their original classification

as primitive areas. See H.R. Rep. No. 1538, 88th Cong., 2d

Sess. 7-8, reprinted in 1964 U.S. Code, & Ad. News, 3615,

3616.'5 Congress concluded that the areas designated as wil-

derness or wild areas had been ‘“‘defined with precision,” /d. at

3617, and could be given statutory protection immediately.

Accordingly, in § 3(a) of the Wilderness Act, 16 U.S.C. § 1132

(a), Congress designated as wilderness all areas within the

national forests that the Secretary of Agriculture had classified

at least 30 days before September 3, 1964 as wilderness or wild.

Congress believed, however, that the primitive areas had not

been “defined with precision,” and that such areas “should not

be considered for inclusion in the wilderness system until

completion of a thorough review.” /d. Accordingly, in § 3(b)

of the Act, 16 U.S.C. R 1132(b), Congress ordered the Secre-

tary of Agriculture to review each designated primitive area as

to its suitability for inclusion in the wilderness system. It thus

is clear from § 1132(b)’s limited purpose that the statute

applies only to primitive areas and lands contiguous thereto.

13 also, one area had been designated as “canoe.” Jd.

35

Since the Snow Bowl permit area is neither contained in nor

contiguous to any primitive area, the plaintiffs have no claim

under § 1132(b).'*

6. National Historic Preservation Act.

In his June 15, 1981 opinion, Judge Richey found that the

Forest Service had committed three violations of the National

Historic Preservation Act (NHPA), 16 U.S.C. § 470 er seq.

(1976), and implementing regulations. First, he found that the

Forest Service had not, as required by 16 U.S.C. § 470f and

Executive Order 11593,'5 examined the project area to iden-

tify properties eligible for inclusion in the National Register of

Historic Places. See 16 U.S.C. § 470a. Second, he found that

the Forest Service had not, as required by 36 C.F.R. § 800.4

(b), consulted the Arizona State Historic Preservation Officer

’ (SHPO) about the effect of the Preferred Alternative upon two

National Register properties near the Snow Bowl—the Fern

Mountain Ranch, owned by plaintiffs Jean and Richard Wilson,

and the C. Hart Merriam Base Camp. Finally, he found that

14, dditionally, § 1132(b) applies only to forest land “predomi-

nantly of wilderness value.” 16 U.S.C. § 1131(c) defines “wilderness” as

“an area of undeveloped Federal land retaining its primeval character and

influence, without permanent improvements or human habitation . . . with

the imprint of man’s work substantially unnoticeable . . .” The permit

area certainly is not wilderness under that definition. As Judge Richey

noted, the permit area contains a ski lodge and ski runs and has been

partially cleared of trees. The fact that portions of the permit area remain

undeveloped cannot change the fact that the area is not “predominantly of

wilderness value.” We therefore would reject the plaintiffs’ § 1152(b)

daim even were the statute otherwise applicable. The plaintiffs’ reliance

upon Parker v. United States, 309 F. Supp. 593 (D. Colo. 1970), affd.,

448 F.2d 798 (10th Cir. 1971), cert. denied, 405 U.S. 989 (1972), is mis-

placed. Not only was the land at issue in that case continguous to a

designated primitive area, it also contained no development other than a

short access road.

158 xecutive Order 11595 is reprinted in 16 U.S.C_A. § 470 (1974) at

26, and at $6 F.R. 8921 (1971).

36

the Forest Service had not, as required by 36 C.F.R. § 800.4

(a)(1), consulted the SHPO about the eligibility of the San

Francisco Peaks themselves for inclusion in the National Regis-

ter. Judge Richey remanded the case to the Forest Service for

compliance with NHPA, and stayed development pending com-

pliance. Upon remand, the Forest Service conducted archaeo-

logical surveys of the permit area and consulted the SHPO. On

September 22, 1981, the Chief Forester determined that the

project area contained no properties either listed or eligible for

listing on the National Register: that expansion of the ski area

would not affect the historic qualities of the Merriam Base

Camp or the Fern Mountain Ranch: and that the San Francisco

Peaks themselves were not eligible for listing. The SHPO had

concurred in these findings by letter dated September 11, 1981.

After the plaintiffs failed to obtain administrative reversal of

the Chief Forester’s determination, the defendants returned to

court to show compliance to Judge Richey. On May 14, 1982

Judge Richey ruled that the Forest Service had complied with

NHPA in all respects. He granted the defendants final judg-

ment on all counts and lifted the stay against development.

The plaintiffs claim that Judge Richey erred in finding com-

pliance with NHPA. They contend that the Forest Service's

efforts to identify eligible properties in the permit area were

legally insufficient: that the Preferred Alternative will affect

the historic qualities of the Fern Mountain Ranch;!® and that

the San Francisco Peaks are eligible for listing. The plaintiffs’

three contentions will be considered in order.

16 U.S.C. § 470f and implementing regulations, see 36

C.F.R. § 800.4(a), together with Executive Order 11593, re-

quire federal agencies approving land use projects to identify all

properties within and about the project area that are eligible for

16h plaintiffs have on appeal dropped their claim that development

will impair the historic qualities of the C. Hart Merriam Base Camp.

o1 eo > = os gl ae a ee” —

37

listing in the National Register and that may be affected by the

project. See Romero-Barcelo v. Brown, 643 F.2d 835, 859

(ist Cir. 1981), reversed on other grounds, 102 S.C. 1798

(1982). The specific area to be examined for eligible properties

is the “area of the undertaking’s potential environmental

impact,” 36 C.F.R. § 800.4(a), which is defined as the “geo-

graphical area within which direct and indirect effects generated

by the undertaking could reasonably be expected to occur.”

36 C.F.R. § 800.3(0). The agency must consult the SHPO

when determining the area of potential environmental impact

and the scope of surveys needed to identify eligible properties

within that area. 36 C.F.R. § § 800.3(0), 800.4(a)(1), (2). The

Forest Service and the SHPO agreed that the Preferred Alterna-

tive’s area of potential environmental impact included the 777

acre permit area, the Snow Bowl road, and 30-foot strips of

land on both sides of the road. Forest Service and Northern

Arizona University archaeologists in July, 1981 conducted

archaeological surveys in which they intensively examined 272

acres, or 35% of the total permit area, including all 77 acres

proposed for development under the Preferred Alternative.

The surveys revealed no evidence of Navajo or Hopi use and in

fact discovered only one archaeological site—the formation of

the old Snow Bow! ski lodge that burned in 1952. The Forest

Service found the lodge foundation to be ineligible for listing,

and the plaintiffs do not argue to the contrary. The SHPO

agreed that the surveys satisfied the Forest Service’s affirmative

obligation to locate and identify eligible properties in the im-

pact area. See 36 C.F.R. § 800.4(a\(2).

The plaintiffs argue that the Forest Service breached its

NHPA duty to identify ail eligible properties by failing to

survey 100% of the impact area. They contend that the Forest

Service’s partial surveys may have left some eligible properties

undetected. We think that the partial surveys were sufficient.

The regulations do not expressly require agencies in all cases

completely to survey impact areas, and in fact recognize that

38

the need for surveys will vary from case to case. See C.F.R. §§

800.4(aX 1), (2). We believe that a complete survey is not

required where both the partial survey, and all other evidence,

indicate that a complete survey would be fruitless. Here, the

defendants’ surveys discovered neither eligible properties nor

any evidence to suggest that such properties might be present

in areas not surveyed. The existing literature on the San Fran-

cisco Peaks gave the Forest Service no indication of historical

or archaeological sites in the impact area. Additionally, the

high altitude and steep slopes of the San Francisco Peaks made

the impact area an unlikely site for past human habitation and

hence an unlikely place in which to find eligible properties.

Under these circumstances a complete survey was not required.

We find support for our conclusion in the First Circuit’s deci-

sion in Romero-Barcelo, supra. where the Navy conducted a

partial archaeological survey of the island of Vieques off the

Puerto Rican coast in connection with training operations there

to be conducted. The Navy's survey identified numerous eli-

gible properties and suggested the probable existence of other

archaeological sites not specifically located. The First Circuit

held that § 470f and Executive Order | 1593 required the Navy

the conduct further surveys to locate the sites thought to be

present. Significantly, however, the court stated that its deci-

sion did not require the Navy “to undertake a 100% survey of

Vieques,” or to survey parts of the island where the initial

survey established “archeological sterility.” 643 F.2d at 860.

As a second ground for reversal, the plaintiffs argue that the

Forest Service erred in finding that the Preferred Alternative

will have no effect upon the historic qualities of the Fern Moun-

tain Ranch. Section 800.4(b) of 36 C.F.R. requires each

agency, in consultation with the SHPO, to determine for each

listed or eligible property within the potential environmental

impact area, whether the agency project will affect the histor-

ical, archaeological, or other characteristic of the property that

39

qualified it for inclusion in the National Register. The agency

is to determine whether an effect is present according to the

criteria of 36 C.F.R. § 800.3. If the agency determines that

the project will have no effect, the project may proceed. 36

C.F.R. § 800.4(b\1). If, however, the agency determines

merely that the project will have no adverse effect, the agency's

determination must be submitted to the Advisory Council on

Historic Preservation for review and comment, 36 C.F.R. §

800.4{c), and if the agency determines that there will be an

adverse effect, the agency must formally consult the Council.

36 C.F.R. §§ 800.4(d), 800.6(b). The plaintiffs argue that

Judge Richey erred in failing to require formal consultation

under § 800.6(b). We conclude, however, that Judge Richey

properly upheld the Forest Service's finding of “no effect.”

The Fern Mountain Ranch is located on the western slopes

of the San Francisco Peaks, approximately one and one-half

miles to the north of the Snow Bowl. The Ranch provides an

excellent view of the Peaks’ wooded slopes, and of the permit

area. Development under the Preferred Alternative will some-

what impair the Ranch’s rustic setting since the new ski tifts

and slopes will be readily visible from the Ranch. The plaintiffs

argue that alteration of the Ranch's natural setting would con-

stitute an “adverse effect’ under the regulations. They rely

upon 36 C.F.R. § 800.3(b), which defines “adverse effect” as

including, inter alia, an “alteration of the property’s surround-

ing environment,” or the “(i)ntroduction of visual . . . or atmos-

pheric elements that are out of character with the property.”

The plaintiffs’ argument fails to recognize that the § 800.3

criteria are to be applied with reference only to those character-

istics of the property that qualified it for National Register

listing. See 36 C.F.R. § 800.4(b). The Ranch’s natural setting

is not one of the characteristics that qualified it for listing. In-

stead, the Nomination Form for the Ranch's listing indicates

that the Ranch is historically significant for three reasons:

40

(1) its original nineteenth-century buildings are still standing

and in use; (2) it played an important role, as a rest stop, in

the development of the Grand Canyon as a tourist attraction;

and (3) it was the first ranch in Arizona to raise Arabian

horses. Clearly, the Preferred Alternative will not affect the

Ranch’s three relevant characteristics and its effect upon the

view from the Ranch is, under the circumstances, immaterial.

The plaintiffs also argue that the Preferred Alternative will

adversely effect the Ranch because the increased tourist traffic

at the Snow Bowl will, they say, increase the dangers of tres-

passing, vandalism, and arson at the Ranch. The Forest Service,

however, determined that increased use of the Snow Bowl

would not endanger the Ranch. The Forest Service's determi-

nation of this factual issue is adequately supported.

The plaintiffs also argue that the Forest Service violated

NHPA by finding that the San Francisco Peaks themselves

were not eligible for listing. The plaintiffs rely upon the fact

that several other mountains and properties which are histori-

cally significant principally because of their association with

Indian religion or culture have been listed. Those properties,

however, may or may not have possessed the particular attri-

butes of the San Francisco Peaks. The determination in each

case of a property's eligibility is the responsibility of the agency

and of the SHPO, see C.F.R. § 800.4(a\3), and in the absence

of an abuse of discretion, their application of the regulations to

the facts must be sustained. We agree with Judge Richey that

the plaintiffs have not shown an abuse of discretion.

Lastly, the plaintiffs argue that the Forest Service should

have requested a final determination of the Peaks’ eligibility

from the Secretary of the Interior. Section 800.4(aX3) of 36

C.F.R. states that when a “question” exists as to a property's

eligibility, the Secretary shall be requested to make a final

determination. Section 63.2(c) of 36 C.F.R. states that a

“question” exists “when the agency and the State Historic

4)

Preservation Officer disagree or when the agency determines

that a question exists.” Here, the Forest Service and the SHPO

agreed that the Peaks were not eligible, and the Forest Service

did not otherwise determine that a question existed. The plain-

tiffs’ argument that a question existed because the Forest Ser-

vice and the SHPO relied upon different reasoning in reaching

their identical conclusion has no merit. Section 800.4(a\3), as

clarified by § 63.2(c), is obviously intended not to require the

agency and the SHPO to reason alike, but only to resolve dis-

putes between the two, and to provide a means by which the

Secretary can have the final say on properties of uncertain

status.

7. Land Use Permits.

In 1977 the Forest Service issued two permits to Northland

for use of the Snow Bowl permit area, which on May 18, 1982

were amended to reflect the development approved under the

Preferred Alternative. One of the amended permits, covering 24

acres, is a term permit valid until May 1, 1997. The Forest

Service granted this permit under the Act of March 4, 1915, as

amended, 16 U.S.C. § 497 (1976), which provides:

The Secretary of Agriculture is authorized, under such

regulations as he may make and upon such terms and

conditions as he may deem proper, (a) to permit the use

and occupancy of suitable areas of land within the national

forests, not exceeding eighty acres and for periods not

exceeding thirty years, for the purpose of constructing or

maintaining hotels, resorts, and any other structures or

facilities necessary or desirable for recreation, public con-

venience, or safety; . .

Northland will build the ski lodge and all other permanent

land covered by the term permit. The

annual or revocable permit covering the

3

Sg

42

remaining 753 acres of the permit area, was issued by the Forest

Service under the authority of the Act of June 4, 1897, as

amended, 16 U.S.C. § 551 (1976), which authorizes the Secre-

tary of Agriculture to “make such rules and regulations . . . as

will insure the objects of such reservations, namely, to regulate

their occupancy and use and to preserve the forests thereon

from destruction.” The land covered by the revocable permit

will be used only for ski slopes.

The plaintiffs challenge the validity of the “dual permit”

system employed by the Forest Service. They contend that

16 U.S.C. § 497, which authorizes permit areas no larger than

80 acres, constitutes the sole authority under which the Secre-

tary may grant permits for the private recreational development

of national forest lands. They accordingly claim that the Forest

Service exceeded its authority in issuing a revocable permit

under 16 U.S.C. § 551 and in granting permits covering 777

acres to a single developer. We agree with Judge Richey that

§ 497 does not limit the Secretary's authority under § 551 and

that Congress has sanctioned the use of dual permits.

In 1905 Congress transferred the management of the

national forests from the Secretary of the Interior to the Secre-

tary of Agriculture. Act Feb. 1, 1905, c. 288, § 1, 33 Stat.

628. As early as May 31, 1905 the Attorney General informed

the Secretary of Agriculture that the Act of 1897, as amended,

authorized him to grant revocable permits for the private, com-

mercial use of national forest land. 25 Op. Atty. Gen. 470

(1905). The Secretary of Agriculture thereafter routinely

granted revocable permits for many purposes, including summer

houses and camping grounds, under the 1897 Act. In 1911 the

Supreme Court upheld the authority of the Secretary to grant

revocable grazing permits under the Act. United States v.

Grimaud, 220 U.S. $06 (1911).

43

In 1915 Congress enacted legislation, now § 497, which, in

contrast to the Act of 1897, expressly authorized the Secretary

of Agricuiture to grant private permits to national forest land.

The 1915 Act authorized the Secretary to grant term permits to

areas not larger than five acres for periods not exceeding 30

years. The plaintiffs claim that the 1915 Congress intended to

repeal whatever permit authority the Secretary possessed under

the 1897 Act. The plaintiffs’ argument has no support in the

legislative history, which instead suggests that Congress acted not

to repeal the Secretary’s existing powers, but to enable him, for

the first time, to grant long-term permits. The Congress recog-

nized that the permanent structures necessary for recreational

use of the national forests would not be built unless private

parties could obtain secure tenure. Congressman Hawley, the

sponsor of the House bill, stated:

At present the people have an unlimited right to go upon

the public land in the national forests. They can go there

and build a temporary camp, put up a tent ora little camp

of some kind. They are given now by the Secretary of Agri-

culture permission to construct temporary structures. But

it does not enable them to put up any important building,

or to justify any considerable expenditure. But if they

could get permission for a period of years they can afford

to put up a better building(.)

52 Cong. Rec. 1787 (1915). Significantly, the Congress had

before it a letter from the Secretary of Agriculture which dis-

cussed the Secretary's practice of granting revocable permits

under the 1897 Act.!” The letter stated:

17the letter was both included in the House committee report,

H.R. Rep. No. 1023, 63d Cong., 2d Sess. 2 (1915), and read during debate

by Congressman Hawiey. 52 Cong. Rec. 1787 (1915).

44

There is at the present time some hesitancy on the part of

persons who want to use national-forest land upon which

to construct summer residences, hotels, stores, and other

structures involving a large expenditure, because of rhe inde-

finite tenure of the permits to them which the present law

provides for. At the present time, however, there are

several thousand such permits in use, upon which structures

have been erected. In justice to those who desire to con-

struct more substantial improvements, it is believed that

the present law should be amended to give persons a better

right than the revocable permit now authorized.

(emphasis supplied). We must therefore presume that when

Congress acted in 1915 it had knowledge of the Secretary’s

practice under the 1897 Act. Accordingly, the absence in the

Act and in the legislative history of any language expressly

repudiating the Secretary’s practice is strong evidence that

Congress did not intend the 1915 Act to affect the Secretary’s

power to issue revocable permits. Certainly the plaintiffs have

shown no reason to depart from the settled Rule disfavoring

repeal by implication. See Wart v. Alaska, 451 U.S. 259,

267 (1981).

We conclude, therefore, that the 1915 Act neither limited

the Secretary’s power to issue revocable permits to areas larger

than five acres nor prohibited him from issuing revocable and

term permits simultaneously. Our conclusion is reinforced by

Congress’ awareness of, but failure to repudiate, the continuing

practice of the Forest Service after 1915 to issue revocable

permits under the 1897 Act. The Forest Service, following the

1915 Act, believed that the purposes of the Act could not be

achieved unless it had authority to issue term permits to areas

larger than five acres. Congress in the 1930’s and 1940’s con-

sidered several bills that would have expanded the Forest Ser-

vice’s authority to grant term permits, but enacted none of

45

them. These bills are nonetheless significant because the reports

they generated gave Congress clear notice that the Forest Ser-

vice was continuing to issue revocable permits for recreational

uses, and further, was issuing dual permits. For example, the

Senate report on S. 773 (72nd Cong., Ist Sess. (1932)), con-

tains a letter from the Secretary of Agriculture to the Chairman

of the Committee on Agriculture and Forestry, which states:

The general laws relating to the national forests do not

authorize the issuance of permits other than terminable at

the discretion of the Secretary of Agriculture. One act, that

of March 4, 1915 . . . authorizes the issuance of permits for

not to exceed 30 years and for areas of not to exceed 5

acres .. . Experience has proved that 5 acres is insufficient

to permit of the proper development of the most modern

types of outdoor camps, hotels, resorts, sanitoria, etc.,

which, in addition to the principal structures, usually re-

quire the related use of lands for the various necessary

utilities, recreational services, etc., now regarded as essen-

tial to such services. Af present these are provided by the

issuance of supplemental terminable permits, which inject

an undesirable element of uncertainty of tenure and add

to routine requirements of administration.

S. Rep. No. 754, 72d Cong., Ist Sess. 2 (1932) (emphasis sup-

plied). Similarly, in connection with H.R. 1809 (80th Cong.,

Ist Sess. (1948)), the Acting Secretary of Agriculture sent the

Chairman of the Committee on Agriculture a letter, which

stated:

Of course, the large majority of . . . permitted uses [in the

national forests] are of relatively short duration or entail

only small capital investments. In such circumstances the

type of terminable permit, renewable from year to year,

which this Department is authorized to issue without limi-

tation as a character of use or area, is adequate.

46

H.R. Rep. No. 805, 80th Cong., Ist Sess. 2 (1948) (emphasis

supplied).!®

In 1956 Congress finally amended the 1915 Act to grant the

Secretary broader power to issue term permits. The amend-

ment increased the acreage limitation in § 497 from five acres

to 80 because effective recreational development of the national

forests had been stymied by the five-acre limitation on term

permits. See H.R. Rep. No. 2792, 84th Cong., 2d Sess., reprint-

ed in 1956 U.S. Code Cong. & Ad. News 3634. The committee

reports, far from repudiating the Secretary’s practice of issuing

revocable permits, expressly approved the practice:

The Department of Agriculture now has adequate authority

to issue revocable permits for ail purposes under the act of

June 4, 1897 (16 U.S.C. § 551). Its authority to issue term

permits ... would be broadened by S. 2216(.)

S. Rep. No. 2511, 84th Cong., 2d Sess. 1, (emphasis supplied),

quoted in H.R. Rep. No. 2792, supra, at 2, 1956 U.S. Code

Cong. & Ad. News at 3635. Congress has not amended either §

497 or § 551 in relevant part since 1956.

18h R. 1809, as originally proposed, would have authorized the

Secretary to grant term permits to areas not larger than 80 acres for per-

jods not exceeding 30 years in all of the national forests. The House Com-

mittee on Agriculture amended the bill to apply only to Alaskan national

forests, because it believed that broadening the Secretary's powers as to

other national forests might have undesirable results. See H.R. Rep. No.

805, 80th Cong., Ist Sess. 1 (1948). The bill passed as amended. 16

U.S.C. § 497a (1976). The plaintiffs argue that the amendment to H.R.

1809 reflects Congress’ intent not to allow the Secretary to issue permits

to large areas in the lower 48 states. The better interpretation, however,

is that Congress was not yet ready to authorize the Secretary to grant

term permits to areas larger than 5 acres. The legislative history of H.R.

1809 nowhere disapproves of the Secretary’s practice of issuing dual

permits and revocabie permits to areas larger than 5 acres. As the quoted

letter illustrates, Congress knew of that practice.

47

We conclude, then, that the Secretary has consistently inter-

preted the Act of 1915 as nor limiting his authority to issue

revocable permits under the Act of 1897; that Congress has for

decades had knowledge of the Secretary’s interpretation, but

has never objected; and that on the one occasion when Congress

did not comment on the Secretary’s interpretation and practice,

in 1956, it expressed approval. Under these circumstances the

Secretary’s authority to issue revocable permits under § 551,

whether or not exercised in connection with dual permits, can-

not be doubted. As this court stated in Kay v. FCC, 443 F.2d

638, 646-47 (1970), “‘a consistent administrative interpretation

of a statute, shown clearly to have been brought to the atten-

tion of Congress and not changed by it, is almost conclusive

evidence that the interpretation has congressional approval.”

(footnote omitted).

In Sierra Club v. Hickel. 433 F.2d 24, 35 (9th Cir. 1970),

affd. on other grounds sub nom. Sierra Club v. Morton, 405

U.S. 727 (1972), the Ninth Circuit approved the practice of

issuing dual permits to ski resort operators)? and, in language

highly instructive here, stated:

The fact that the record discloses that there are now a total

of at least eighty-four recreational developments on national

forest lands in which there is such a combination of the

term permit and the revocable permit is convincing proof of

19 sierra Club vacated a preliminary injunction enjoining the Secre-

taries of Interior and Agriculture from authorizing a large-scale, private

recreational development in the Sequoia National Forest. Because Sierra

Club involved an interlocutory appeal it required the Ninth Circuit to

decide only whether the plaintiffs had shown a strong likelihood of suc-

cess, it did not make a final determination of the validity of dual permits.

That issue therefore technically remains open in the Ninth Circuit. See

Sierra Club v. Morton, 348 F. Supp. 219, 220 (ND. Cal. 1972). Sierra

Club did, however, give detailed consideration to the legality of dual

permits.

48

their legality. Many of these developments are ski develop-

ments making use of the maximum acres of the term permit

plus revocable permits for additional acreage in amounts in

some cases in excess of 6,000 acres . . . It seems apparent, as

was obvious to both [the 1956] Senate and House Commit-

tees, that the eighty-acre long-term permit was a necessity

to obtain proper financing for substantial permanent im-

provements, while developments of less magnitude and per-

manency, such as trails, slopes, corrals, could be placed

upon lands held under revocable permits.

(footnote omitted). The Forest Service has continued, follow-

ing the decision in Sierra Club, to grant dual permits to ski

resort Operators. There are presently about 200 ski develop-

ments in the national forests and most of them employ dual

permits.?°

The case of Wilderness Society v. Morton, 479 F.2d 842

(D.C. Cir.) (en banc), cert. denied, 411 U.S. 917 (1973), cited

by the plaintiffs, does not support their argument. In Wilder-

ness Society, the plaintiffs challenged the issuance of rights-of-

way and special land use permits by the Secretary of the Inter-

ior to a consortium of oil companies for the construction of the

Alaska pipeline. The permits covered land greater in width than

the express limitation contained in.§ 28 of the Mineral Leasing

Act of 1920, 30 U.S.C. § 185. This court found that § 28 con-

stituted the Secretary’s sole authority to issue permits for the

use of federal land for oil pipelines, and held that the Secretary

had exceeded his authority in failing to adhere to the width

limitations. The plaintiffs also contended that the permits

issued by the Secretary violated § 497. The court found it

unnecessary to decide that claim, and declined to comment on

the Ninth Circuit’s decision in Sierra Club. The court did, how-

ever, note that § 497 had “no provision comparable to that in

205 Rep. No. 1019, 94th Cong., 2d Sess. 8 (1976).

49

Section 28 of the Mineral Leasing Act expressly stating that no

rights-of-way for the uses in question shall be granted except

under the provisions, conditions and limitations of the statute.”

479 F.2d at 870. That distinction between the language of §

497 and of § 28, together with the legislative history recounted

above, indicate clearly enough that § 497, unlike § 28, cannot

be — as an exclusive grant of authority as to the uses in ques-

tion.

Finally, the plaintiffs claim that even if the Secretary had

authority under § 497 and 551 to issue dual permits to North-

land, the 753-acre permit issued under § 551 is invalid because

not actually revocable. We see no merit in this claim. The

Forest Service’s continuing power to revoke the § 551 permit

is apparent from the permit’s terms, which state that the per-

mit will terminate on May |, 1997 unless previously terminated

“upon breach of any of the conditions herein or at the discre-

tion of the regional forester or the Chief, Forest Service.”

(emphasis supplied). The plaintiffs argue that the permit is

not truly revocable because the Forest Service’s own regulations

require a rational basis for the revocation of such permits, see

36 C.F.R. § 251.60(b) (1982), and subject revocations to

administrative review. 36 C.F.R. § 211.19 (1982). The plain-

tiffs have now, however, cited any authority holding that a

21h, both 1975 and 1977 the Senate considered bills which would

have substantially revised the Forest Service’s authority to issue permits

for the private recreational use of national forest land. The bills expressly

authorized the Forest Service to grant term permits to ski resort operators

to areas larger tliam 80 acres. S$. 1538, 95th Cong., Ist Sess. § 5, 123

11,643 (1977); S. 2125, 94th Cong., 2d Sess. § 3 (1976). The

became law. Although the bills were intended to achieve a

goals, they were proposed, in part, because of concern that

Wilderness Society v. Morton the Forest Service’s practice of issuing

permits might be illegal. See 125 Cong. Rec. 11,641 (1977) (Re-

Haskell); S. Rep. No. $24, 95th Cong., lst Sess. 11-12

No. 1019, 94th Cong., 2d Sess. 8-9 (1976). However, as

Wilderness Society does not preclude the issuance of dual

under §§ 497 and 551.

Hit

Te

ey

50

permit to be “revocable,” must be revocable at the mere arbi-

trary will of the issuing authority, and we decline to read such a

requirement into the authorizing statute. Cf. Sierra Club, supra,

433 F.2d at 35. The plaintiffs also argue that the permit is

not revocable because the Forest Service is unlikely to revoke it

before the term permit expires. The short answer is that the

Forest Service has power to revoke.

CONCLUSION

We also agree with Judge Richey’s disposition of the plain-

tiffs’ remaining claims. Accordingly, we affirm the judgment of

the district court.

——

APPENDIX “B”

Opinion and Order

Dated June, 1981

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 81-0481

HOPI INDIAN TRIBE,

Plaintiffs.

Ve

JOHN R. BLOCK, er al.

Defendants.

Civil Action No. 81-0493

NAVAJO MEDICINEMEN’S ASSOCIATION, er ai.,

Plaintiffs.

Via

JOHN R. BLOCK, er ai.

Defendants.

in

Civil Action No. 81-0058

RICHARD F. WILSON and JEAN WILSON,

Plaintiffs

v.

JOHN R. BLOCK, e: ai.,

Defendants.

$2

MEMORANDUM OPINION OF UNITED STATES

DISTRICT JUDGE CHARLES R. RICHEY

The instant action originated as three separate lawsuits

brought by the Hopi Indian Tribe, the Navajo Medicinemen’s

Association and Richard and Jean Wilson. The Hopi Indian

Tribe is a federally recognized tribe of American Indians whose

aboriginal lands include areas of Northeastern Arizona where

the tribe has existed for over one thousand years. The Navajo

Medicinemen’s Association is an association of medicinemen

and medicinewomen who have received special training in the

traditional religious beliefs and practices of the Navajo. Richard

and Jean Wilson are private landowners who own and periodi-

cally occupy a ranch in the area of the San Francisco Peaks—the

land in question in this action. Because there were questions of

law or fact common to all of these actions, this Court, by Order

dated March 10, 1981, consolidated these actions.

The original party defendants are various officials within the

Agriculture Department. On May 27, 1981, the Court granted

the motion of Northland Recreation Corporation, the permittee

on the land in question, to intervene as a defendant.

In their complaints, plaintiffs challenge the action taken by

the federal defendants in authorizing the further development

of recreational facilities known as the Arizona Snow Bowl

located in the Coconino National Forest in Arizona. The

approved expansion would take place within a 777 acre permit

area of the 75,000 acre area of the San Francisco Peaks. All of

these plaintiffs seek to prevent the expansion of the existing

facilities; two of the three plaintiffs, the Hopi Indian Tribe and

the Navajo Medicinemen’s Association, also seek to have the

existing facilities removed. Plaintiffs claim that the operation

and expansion of this facility constitutes 2 violation of the

plaintiffs First Amendment guarantee of free exercise of

religion due to the sacred nature of the mountains and their

centrality to both the Hopi and Navajo religions. In addition,

— >

53

plaintiffs claim that the defendants have violated the American

Indian Religious Freedom Act, the National Environmental

Policy Act, the Endangered Species Act, the Wilderness Act, the

Multiple-Use Sustained-Yield Act, the National Historic Preser-

vation Act, the statutes governing the issuance of permits (Acts

of June 4, 1897 and March 4, 1915), an alleged trust relation-

ship between the Forest Service and the native Americans and

the Administrative Procedure Act.

Both the federal defendants and the intervenors filed

motions to dismiss. The intervenors seek to dismiss the com-

plaint of the Wilson plaintiffs for failure to exhaust administra-

tive remedies and lack of standing to assert constitutional

rights of the Indian plaintiffs. The federal defendants have also

moved to dismiss the Wilson plaintiffs because of the lack of

standing under the First Amendment and the American Indian

Religious Freedom Act; and, in addition, the government has

moved to dismiss the complaints of the Hopis and Navajos as

to their request for the removal of the existing facilities based

on the doctrine of laches. The plaintiffs and defendants have

also filed cross-motions for summary judgment.

I. Motions to Dismiss

Defendants argue that pursuant to Article III of the United

States Constitution which authorized federal courts to hear

only bona fide cases or controversies, plaintiffs Wilson lack

standing to raise both the First Amendment constitutional

issues and the issues concerning the American Indian Religious

Freedom Act (AIRFA). Article III's requirement that courts

hear only “cases and controversies” dictates that a determina-

tion must be made as to whether a party has a sufficient per-

sonal stake in the outcome of the controversy and hence

whether they have standing. See Sierra Club v. Morton, 405

U.S. 727 (1972); Flast v. Cohen, 392 U.S. 83 (1968); Baker v.

Carr, 369 U.S. 186 (1962). Courts have found that a mere

$4

abstract interest in the dispute cannot confer standing upon an

otherwise uninjured party. Simon v. Eastern Kentucky Welfare

Rights Organization, 426 U.S. 26, 40 (1976); Sierra Club vy.

Morton, 405 U.S. at 735.

The defendants herein allege that the Wilsons have merely

an abstract interest in the Indians’ First Amendment rights and

therefore have no standing to assert those claims without some

showing of concrete injury to themselves or their own First

Amendment rights. They, as non-Indians, are not the proper

proponents of the religious rights allegedly infringed upon by

defendants’ actions. The Court agrees.

The Supreme Court has repeatedly stated that one may not

claim standing to vindicate the constitutional rights of some

third party absent a compelling reason to do so. Singleton v.

Wulff. 428 U.S. 106, 114 (1976): Flast v. Cohen, 392 U.S. at

99 n.20; McGowan v. Maryland, 366 U.S. 420, 429 (1961);

Barrows v. Jackson, 346 U.S. 249, 255, rehearing denied, 346

U.S. 841 (1953).

In the instant action, there is no compelling reason to allow

these plaintiffs to litigate the First Amendment rights of a third

of a third party, because the third parties whose rights are

being asserted are presently before the Court. Courts have

recognized that third parties themselves usually will be the best

proponents of their own rights, and that the standing require-

ment is aimed at assuring that concrete adverseness which

sharpens the presentation of the issues upon which the Court

so largely depends. Singleton v. Wulff, 428 U.S. at 114; Baker

v. Carr, 369 U.S. at 204. Accordingly, the Court grants defen-

dants’ motion to dismiss the Wilson plaintiffs’ complaint as to

the First Amendment and American Indian Religious Freedom

Act claims.!

lThe parties agreed at oral argument to have any papers which had

been submitted by the Wilson plaintiffs on the First Amendment and

American Indian Religious Freedom Act claims to be received by the

Court as amicus curiae.

ee

$5

The intervenor-defendants also have moved to dismiss the

Wilson plaintiffs’ complaint for failure to exhaust administrative

remedies. The intervenors claim that the Wilson plaintiffs

failed to participate in the final level of administrative review

because they merely filed a statement with the Regional Fores-

ter within the statutorily required 30-day period which accep-

ted the Regional Forester’s decision but reserved their rights

with respect to all matters which they had previously raised.

The intervenors claim that because 36 C.F.R. § 211.19 provides

no specific procedure for preserving one’s right to further ap-

peal, this statement is inadequate to constitute notice of appeal.

The Court disagrees.

Within the time period specified in 36 C.F.R. § 211.19(k),

the Wilsons filed with the Regional Forester a document en-

titled “Statement in Support of Regional Forester’s Decision,

Notice of Contingent Appeal and Statement of Reasons in

Support thereof or, alternatively, Request to Intervene in

Support thereof, Notice of Association of Counsel.” The Notice

stated, in pertinent part:

For these limited purposes and to avoid any possible waiver,

administrative estoppel or res judicata, and any possible

effect of the doctrine of exhaustion of administrative

remedies, this statement is deemed a Notice of Appeal and

statement of reasons in support thereof within the meaning

of 36 C.F.R. § 211.19 and to that end all matters pre-

viously filed or submitted by Wilson in this appeal of

whatever kind or nature are hereby expressly incorporated

herein by reference as if set forth verbatim.

This notice was received in the Office of Regional Forester

and forwarded to the Chief Forester in Washington, D.C., who, ©

on March 28, 1980, granted the Wilsons’ request to participate

in further levels of review. On December 31, 1980, the Chief

Forester rendered the decision which is the subject of this liti-

gation and further review was declined by the Secretary of

Agriculture.

56

In accordance with the principles that liberality of construc-

tion with respect to notices of administrative appeal is the rule,

the Court deems the Wilsons’ notice to be adequate. “The suf-

ficiency of a notice of administrative appeal should be liberally

construed as long as an adverse party is not prejudiced there-

by.” Gentry v. United States, 546 F.2d 343, 348 (Ct. Cl.

1976), rehearing denied. $51 F.2d 852 (Ct. Cl. 1977Xa claim-

ant’s document simply asking for “review” of the agency’s

decision was adequate notice); Perrit v. United States, 488 F.2d

1026, 1031 (Ct. Cl. 1973\telephone call to a federal agency

was possibly sufficient as a notice of appeal): Gernand v. United

States, 412 F.2d 1190 (Ct. Cl. 1969), cerr. denied, 414 US.

844, rehearing denied. 414 U.S. 1017 (1973\a former em-

ployee’s letter to the President of the United States and subse-

quent referral to the Civil Service Commission was deemed

clear notice that the plaintiff was appealing the agency deci-

sion).

In the instant action, the government plainly had sufficient

notice of the Wilson's position to review the case in light of

their assertions and therefore were not misled or prejudiced by

that notice.” Accordingly, the intervenor’s motion to dismiss

the Wilson plaintiffs for failure to exhaust administrative reme-

dies is denied.

Finally, the federal defendants have filed a motion to

dismiss the Hopi Tribe’s and Navajo Medicinemen Association's

claims seeking removal of the existing Arizona Snow Bowl

facilities. Defendants maintain that plaintiffs’ claim to such

relief is barred by the laches doctrine. However, in light of the

Court’s disposition of the issues raised by the plaintiffs on

summary judgment, the Court need not decide this issue.

21: should be noted that the federal defendants have not raised the

defense of failure to exhaust administrative remedies.

57

I]. Motions for Summary Judgment

A. Free Exercise of Religion

The First Amendment to the Constitution of the United

States guarantees the Navajo and Hopi plaintiffs that the federal

government will take no action “prohibiting the free exercise”

of their religions. The plaintiffs herein allege that the defen-

dants’ decision to permit the continued operation and further

expansion of the Arizona Snow Bow! ski resort on the San

Francisco Peaks constitutes a violation of this fundamental

obligation. The plaintiffs claim that the San Francisco Peaks

play a central, dominant and vital role in both the Hopi and

Navajo religions and that the Chief Forester’s decision to allow

expansion ignores the fact that the free exercise of religion

depends upon these mountains remaining sacred and free from

manmade disturbances.

The record is replete with descriptions and testimony con-

cerning ths Indians’ religious beliefs. The Hopi Indians believe

that for six months of every year, the “kachinas,” spiritual

beings sent as emissaries to the Hopis by the creator, reside in

the Peaks. During the other six months of the year, they travel

to the Hopi villages to participate in the various religious cere-

monies and rituals referred to as the Kachina cycle. Numerous

Hopi shrines are located in the Peaks and are visited by Hopi

The Navajos believe that the San Francisco Peaks are one of

the four sacred mountains making the boundaries of the Navajo

homeland. They believe that the mountains bring harmony and

balance to the lives of the Navajo people, protect them from

destructive forces and sustain the integrity of their spiritual

and physical health.

The defendants have stipulated in the Joint Stipulation of

Material Facts filed in this matter, that “[t] he Navajo plaintiffs

believe that the Peaks are themselves a sacred body aad a spir-

itual being or god with various peaks forming the head, shoul-

ders, and knees of a body reclining and facing the East, while

oF

$8

the trees, plants, rocks and earth form the skin of this sacred

body;” that “[t]he Navajo plaintiffs pray directly to the Peaks

and regard them as a living diety;” that “[{t})he Peaks are in-

voked in religious ceremonies in order to heal the Navajo people

and to bring harmony, balance and natural order to their

lives;” that “(t]he Navajo plaintiffs believe that cutting, digging

or other manmade disturbances of the natural state of the Peaks

causes the deity to lose its healing of the Navajo people and the

restoration of harmony, balance and natural order to their lives

which such ceremonies effect;” and that the Peaks are impor-

tant to Navajo religious beliefs and are the subject of many

prayers and songs that comprise their religion.” See Joint Stip-

ulation of Material Facts, pp. 7-8.

However, despite these religious beliefs, the Chief Forester’s

decision of December 31, 1980, concluded that “(a] Ithough

Native Americans may consider development and use of the

Arizona Snow Bowl to be adverse to their religious beliefs,

neither the First Constitutional Amendment nor the American

Indian Religious Freedom Act provide protection from such

development.”” This Court agrees with this determination and

accordingly finds for the defendants as to the Free Exercise

claim for the following reasons.

The Tenth Circuit, in Badoni v. Higginson, 638 F.2d 172,

176-77 (1980), set forth the test under the Free Exercise clause

of the First Amendment:

Analysis of a free exercise claim involves a two-step process.

We first determine whether government action creates a

burden on the exercise of plaintiffs’ religion. “[I]t is neces

sary in a free exercise case to show the coercive effect of the

enactment as it operates against . . . the practice of [their]

religion. School District of Abington v. Schempp, 374 U.S.

203, 223, 83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844 (1963).

The practice allegedly infringed upon must be based on a

system of belief that is religious, see, e.g., United States v.

Ballard, 322 U.S. 78, 64S. Ct. 882, 88 L. Ed. 1148 (1944).

ee ee ee

$9

If such a burden is found, the action is violative of the Free

Exercise clause, unless the government establishes an inter-

est of “sufficient magnitude to override the interest claim-

ing protection under the Free Exercise clause.” Wisconsin

vy. Yoder, 406 U.S. at 214, 92S. Ct. at 1532.

Defendants here do not challenge the fact that the plaintiffs’

beliefs are sincerely held. See Joint Stipulation of Material

Facts No. 28. Therefore, in determining whether the Govern-

ment’s action creates a burden on the exercise of plaintiffs’

religion, the only real issue is whether there is “a coercive effect

of the enactment as it operates against the practice of [their]

religion.”

As the Court in Badoni recognized, Free Exercise claims

generally challenge government dictates which compel citizens

to violate the tenets of their religion, see Wooley v. Maynard,

430 U.S. 705 (1977) (statute requiring all motor vehicles of

New Hampshire to bear the motto “live Free or Die” violated

Jehovah’s Witness followers’ First Amendment Rights); Wiscon-

sin v. Yoder, 406 U.S. 205 (1972) (Wisconsin’s compulsory edu-

cation law violated Amish free exercise of religion), or govern-

ment action which conditions a benefit or right or reward on

one’s rejection of a religious practice. See Thomas v. Review

Board of the Indiana Employment Security Division, 49 US.

L.W. 4341 (U.S. April 6, 1981) (Unemployment compensation

may not be denied someone who for religious reasons could

not continue to produce weapons); McDaniel v. Paty, 435 U.S.

618, 633-34 (1978) (Tennessee provisions barring ministers

from serving as delegates or legislators violated the First Amend-

ment; Sherbert v. Vernor, 374 U.S. 398 (1963) (Disqualifica-

tion of appellant from unemployment compensation because of

refusal to work on Saturday contrary to religious beliefs vio-

lated the Free Exercise clause).

The government here has not forced the plaintiffs to em-

brace any religious belief or to say or believe anything in con-

60

flict with their religious tenets; nor have they forced plaintiffs

to chose between their religious beliefs and some public benefit.

Therefore the Court must look to whether there is a “coercive

effect” in that the defendants have prohibited the plaintiffs’

practice of their religion. We find there is no such prohibition

and, therefore, no such coercive effect which violates the Free

Exercise clause.

The government here has not prohibited plaintiffs’ religious

exercise in the area of the San Francisco Peaks. In fact, plain-

tiffs have utilized the Arizona Snow Bow! facilities to further

their religious practices by gaining access to high levels of the

Peaks. See Joint Stipulation of Material Facts No. 2. The

affidavits of Dr. Robert Euler and Dr. Jerrold Levy both sup-

port the conclusion that as long as the Indians have continued

access to the Peaks, the Snow Bowl will not impinge upon the

continuation of all essential ritual practices. Levy affidavit

€¢ 10, 13; Euler affidavit ¢¢ 8-9. Dr. Levy states that the soil

and ritual goods used in the ceremony do not have to actually

come from the Peaks and that the Snow Bowl permit area does

not involve any of the areas used by the Hopi for their shrines

or final approach to the Summit or the Peaks. See Levy affi-

davit €¢ 9.9, 9.12, 12. In fact, the Snow Bowl operation has

been in existence for nearly fifty years and it appears that

plaintiffs’ religious practices and beliefs have managed to coexist

with the diverse developments that have occurred there.?

In Sequoyah v. TVA, 620 F.2d 1159, Cherokee Indians

challenged the flooding of the Little Tennessee Valley and con-

sequent lack of access to historically significant cities due to

completion of the Tellico Dam. The Sixth Circuit determined

that because the plaintiffs’ claim could not show damage to

their particular religious observances, there was no burden im-

posed on the plaintiffs’ free exercise of religion. The Court

5tt should be noted that there are numerous other permitted uses on

the Peaks. See Map of the Peaks attached to the Joint Stipulation of

Material F acts.

61

looked to numerous decisions that premised a finding of a Free

Exercise violation on a determination of the centrality of

plaintiffs’ affected practices to their religion and found that

the plaintiffs failed to show the “centrality or indispensability

of the Little Tennessee Valley to Cherokee religious obser-

vances.” Jd. at 184. See Wisconsin v. Yoder, 406 US. at 215-

216; Frank v. Alaska, 604 P.2d 1068 (Alas. 1979) (Meat from

an illegally killed moose formed the “cornerstone” of a relig-

iously required funeral patloch); People v. Woody, 61 Cal. 2d

716, , 40 Cal. Rptr. 69, , 394 P.2d 813, 817, (Cal. 1964)

(Court found peyote played a “central” role in a ceremony that

was the “cornerstone” of the Native American Church). The

Court in Sequoyan then looked to the affidavits disclosing that

medicines no longer available in the flooded area are available

at higher places and determined that the plaintiffs had not

shown damage to particular religious observances and, there-

fore, there was no infringement of a constitutionally cognizable

First Amendment right.

In the instant act, the infringement is even less severe be-

cause plaintiffs are not denied total access to their religious

sites as they were in Sequoyah. Plaintiffs do not allege that the

Forest Service has prevented them from collecting soil, tree

boughs, stones or any other objects from the Peaks nor have

they shown that the permit area of the San Francisco Peaks is

central or indispensable to their religion. Rather, plaintiffs’

action is based on an unusual claim. Plaintiffs are not alleging

that the government directly infringed upon their religious

beliefs, nor are they alleging that the government directly

interfered with or impeded their religious ceremonies. Their

claims, instead, are based on the indirect effect that desecra-

tion of the Peaks will have on their religion. They are essen-

tially claiming that anyone asserting a religious interest in

government property, albeit a sincere one, has a constitutional

right to demand that the government grant them access to it,

yet restrict the rights of the public to, and any development of,

62

this property in order to facilitate the exercise of their religious

beliefs. This Court will not extend the First Amendment to

such limits. Not only is there an insufficient showing of a bur-

den on plaintiffs’ Free Exercise rights, but such a result would

clearly fly in the face of the principles of the Establishment

clause of the First Amendment.

B. The Establishment Clause

Defendants claim that the plaintiffs cannot compel the

government to operate the San Francisco Peaks primarily as a’

religious shrine to satisfy their own particular religious imter-

ests, because what the plaintiffs request in the name of the Free

Exercise clause is affirmative action by the government which

violates the Establishment clause of the First Amendment.

The Court of Appeals for the District of Columbia Circuit

has set forth the test under the Establishment clause in the case

of Allen v. Morton, 495 F.2d 65, 68 (D.C. Cir. 1973). Under

Allen, an act or law must meet three tests to avoid the Estab-

lishment clause: (1) the act or law must reflect a clearly secular

purpose; (2) it must have a primary effect that neither ad-

vances or inhibits religion; and (3) the act must avoid excessive

government entanglement. The relief requested herein by the

plaintiffs clearly would not meet the requisite standard. Should

the defendants be forced to either discontinue operation of the

Snow Bow! or prohibit its expansion, the purpose would not be

secular but would be solely religious, and its primary effect

would be to advance the religious interests of the Indian plain-

tiffs. The government cannot use federal property for such

purposes.

The Tenth Circuit recently dealt with this issue in the case

of Badoni v. Higginson, 638 F.2d 172, which is based on a very

similar set of facts as the case at bar. In Badoni, Indian plain-

tiffs claimed that management by the government of the Rain-

bow Ridge National Monument and of the Glen Canyon Dam

63

and Reservoir on the Colorado River 58 miles below the Monu-

ment violated the Free Exercise clause for two reasons: (1) in

impounding water to form Lake Powell, the government had

drowned some of the plaintiffs’ gods and denied the plaintiffs

access to a prayer spot sacred to them, and (2) by allowing

tourists to visit the Rainbow Bridge, the government had per-

mitted desecration of the sacred nature of the site and had

denied plaintiffs’ their right to conduct religious ceremonies

at the prayer spot. In relation to their second claim, the plain-

tiffs alleged that by permitting public access and the operation

of commercial tour boats, the government had burdened the

practice of plaintiffs’ religion. However, the Court in Badoni

found that the government had not prohibited plaintiffs’ reli-

gious exercises in the area of Rainbow Bridge because plaintiffs

could enter the Monument on the same basis as other people.

Id. at 178. The Court went on to say that the government has

a strong interest in assuring public access to the monument and

that “issuance of regulations to exclude tourists from the Monu-

ment for the avowed purpose of aiding plaintiffs’ conduct of

religious ceremonies would seem a clear violation of the Estab-

lishment C'ause.” /d. at 179.

The Court also denied relief insofar as plaintiffs wanted the

government to police the actions of the tourists visiting the

Monument, stating that:

The First Amendment protects one against action by

the government, though even then, not in all circumstances;

but it gives no one the right to insist that in the pursuit of

their own interests others must conform their conduct to

his own religious necessities . .. We must accommodate our

idiosyncracies, religious as well as secular, to the compro-

mises necessary in communal life.

Id., quoting Otten v. Baltimore & O.R. Co., 205 F.2d $8, 61

(2d Cir. 1953) (Learned Hand, J.). Were it otherwise, the Court

reasoned, the Monument would become a government-managed

religious shrine. 638 F.2d at 179.

64

Similarly, the plaintiffs here seek to have the government

restrict the public's use of these mountains solely because of

the religious beliefs of the plaintiffs. They want the San Fran-

cisco Peaks to become a “government-managed religious shrine”

to the exclusion of any development. However, the permit area

land, which was designated part of the San Francisco Mountain

Forest Reserve on August |7, 1898, and became a part of the

Coconino National Forest on July 2, 1907, is managed accord-

ing to numerous federal laws which provide for multiple uses

for the benefit of the general public.* The Secretary of Agricul-

ture has the duty to maintain the National Forests for multiple

uses pursuant to the Multiple-Use Sustained-Yield Act, 16

U.S.C. § 528 (1976). Pursuant to this authority, the Secretary

has developed long-range nationa! resource plans for the man-

agement of the natural resources and uses of the national for-

ests. See Kerrick affidavit ¢ 9; Kirkpatrick affidavit 4 12. The

plaintiffs do not have a constitutional right under the First

Amendment to require that the government manage this pro-

perty as a religious shrine for them; not only is it not required

by the First Amendment, but it is clearly prohibited by the

Establishment clause.

C. The American Indian Religious Freedom Act

The American Indian Religious Freedom Act (“AIRFA”),

42 U.S.C. § 1996, provides that “[ojn or after August 11,

1978, it shall be the policy of the United States to protect and

preserve for American Indians their inherent right of freedom

to believe, express and exercise the traditional religions of the

American Indian, Eskimo, Alleut, the Native Hawaiians, in-

cluding, but not limited to, access to sites, uses and possession

of sacred objects, and the freedom to worship through cere-

monies and traditional rites.”

4See 16 U.S.C. § § 472-82, 528, 531.

65

The plaintiffs allege that the Forest Service has wholly

failed to apply this law in determining to authorize the expan-

sion of the Snow Bowl facilities. They claim that if the legis-

lation is to have any meaning, then it must require, at the very

least, that the defendants take the remedial actions necessary to

stop this alleged infringement of the plaintiffs’ religious rights.

Brief of the Navajo Medicinemen’s Association, p. 17.

The defendants argue that AIRFA creates three duties for

federal agencies, all of which have been complied with: (1) to

evaluate their policies and procedures with the aim of protect-

ing Indian religious freedom; (2) to refrain from prohibiting

access, possession and use of religious objects and the perfor-

mance of religious ceremonies; and (3) to consult with Indian

groups in regard to the proposed actions. Defendants here have

met their obligations under the Act. The Court agrees.

The legislative history of AIRFA reveals that the purpose

of the Act was to “insure that the policies and procedures of

various federal agencies as they may impact upon the exercise

of traditional Indian religious practices, are brought into com-

pliance with the constitutional injunction that Congress shall

make no laws abridging the free exercise of religion.” H. Rep.

1308, 95th Cong., 2nd Sess. (1978). The Act was meant to

insure that American Indians were given the protection that

they are guaranteed under the First Amendment; it was not

meant to in any way grant them rights in excess of those

guarantees.

What the Act does require is that agencies evaluate their

policies and procedures with the aim of protecting Indian

religious freedoms. See 124 Cong. Rec. H6872 (daily ed. July

18, 1978) (Remarks of Rep. Udall). Here, the defendants have

clearly complied with this mandate. The Administrative Record

contains many references to Forest Service meetings with the

plaintiffs both on and off the reservations and numerous hear-

ings were held at which Hopi and Navajo representatives testi-

fied. See Kirkpatrick Affidavit ¢ 11; Final Environmental

Statement (“FES”’) at 57-60, 159, 164-174.

66

What the plaintiffs here are really objecting to is not the

review process that took place pursuant to AIRFA, but the

decision which was rendered as a result of it. However, the

Court finds that AIRFA was never meant to have such a broad

interpretation. The Act does not require that access to all

publicly owned properties be provided to the Indians without

consideration for other uses or activities, nor does it require

that Native traditional religious considerations always prevail

to the exclusion of all else. It requires that the agencies eval-

uate their policies with the aim of protecting Indian religious

freedoms, and that they not deny access to the sacred sites, use

and possession of sacred objections and the freedom to wor-

ship. The Forest Service has complied with these requirements,

and the Court therefore finds no violation of AIRFA.

D. Breach of Fiduciary Duty

Plaintiffs claim that throughout the administrative proceed-

ings, the defendants have ignored the fiduciary duty which is

owed to the Indian plaintiffs by virtue of their guardian-ward

relationship. See Morton v. Mancari, 417 U.S. 535, 541-42

(1974); United States v. Kagama, 118 U.S. 375, 382 (1886).

They claim that this responsibility includes the duty to protect

traditional Indian resources and communities, as well as the

religious beliefs and practices, and that the decision to expand

the Arizona Snow Bowl is in direct conflict with the duty to

protect the interests of the Indians as their trustee.

However, as plaintiffs have conceded, this fiduciary duty

does not exist in a vacuum. The scope of the trust responsi-

bility in an particular situation between a federal agency and an

Indian tribe or individual] is defined by the statute, treaty or

executive order which specifies the particular duty or relation-

ship at issue. North Slope Borough v. Andrus, 642 F.2d 589,

612 (D.C. Cir. 1980). In Gila River Pima-Maricopa Indian

Community v. United States, the Court set forth this principle:

67

Whether or not the legal relationship of guardian and ward

exists between a particular Indian tribe and the United

States depends, we think, upon the express provisions of

the particular treaty, agreement, executive order, or statute

under which the claim presently arises. It is true that the

word “fiduciary” and the express “guardian-ward relation-

ship” have been used by the courts to describe generally

the nature of the relationship existing between the Indians

and the government. However, in the absence of some lang-

uage in a treaty, agreement or statute spelling out such a

relationship, the courts seem to have meant merely that the

relationship between the Indians and the Government is

“similar to” or “resembles” such a legal relationship and

that doubtful language in the treaty or statute under con-

sideration should be interpreted in favor of the weak and

dependent Indians.

140 F. Supp. 776, 781 (Ct. Cl. 1956).

Plaintiffs allege that the statute which creates this trust

responsibility is AIRFA. This argument is indeed unique in

that courts have generally found a trust relationship to exist

only in cases that deal with Indian property, funds or programs.

See Gila River Prima-Maricopa Indian Community v. U.S.,

427 F.2d 1194, 1196, 1198-99 (1970), cert. denied, 400 U.S.

819 (1970); Eric v. Secretary of U.S. Department of Housing

and Urban Development, 464 F. Supp. (D. Alas. 1978); White

v. Califano, 437 F. Supp. 543, 535 (D.S.D. 1977), aff'd, 581

F.2d 697 (8th Cir. 1978). However, plaintiffs allege that

AIRFA is an unambiguous declaration that the Federal govern-

ment has a legal responsibility to protect and preserve Indian

religious freedom to believe, express and exercise traditional

religions.

The Court agrees with the plaintiffs in that the Act imposes

an obligation on the federal government to protect Indian

religious freedoms when developing any federal policies; how-

ever, the Act does not create a “fiduciary relationship” as such,

68

and the Court is not willing to imply one. The Supreme Court

recently spoke to this issue in Unired States v. Mitchell, wherein

the statute in question stated that the United States is “to hold

land . . . in trust for the sole use and benefit of the” allottee.

445 U.S. 535, 541, rehearing denied, 446 U.S. 992 (1980).

Even in the face of such explicit language, the Court found that

the Act created only a limited trust relationship between the

United States and the Indians and did not impose any duty

upon the Government to manage timber resources, absent lang-

uage to the contrary. Therefore, the Court concluded that all

of the fiduciary duties ordinarily placed by equity upon a

trustee would not be imposed on the government. /d.

Similarly, in the instant action, this Court will not impose

all of the obligations of a fiduciary relationship on the govern-

ment solely on the basis of AIRFA.° To the extent that

AIRFA imposes duties and obligations on the federal govern-

ment with respect to Indian religious freedoms, the Court has

already determined that the government has complied with the

statute.

E. The National Environmental Policy Act

Plaintiffs allege that the Final Environmental Statement for

the Arizona Snow Bowl Ski Area Proposal (“FES"’) is inade-

quate under the National Environmental Policy Act (“NEPA”),

42 U.S.C. § 4332 er seq., because it fails to adequately address

the environmental. consequences of the proposed expansion

with respect to: 1) endangered and threatened plant species;

2) Native American religion and culture; 3) the economy; 4)

historic and cultural sites.

5The plaintiffs also allege that several other statutes define a trust-

based duty relevant to this case, however, the Court finds these to be

inapplicable. See 25 U.S.C. §§ 13, 452, 1601; Treaty of 1850, 9 Stat.

9.74, 41, XI.

69

NEPA requires the responsible federal official to include for

the “major federal action significantly affecting the quality of

the human environment” a “detailed statement” which analyzes

“the environmental impact of the proposed action.” 42 U.S.C.

§ 4332(c). Judicial review of administrative decisions in NEPA

cases is a narrow one. The role of the Court is not to substitute

its own judgment for that of any agency as to the environmen-

tal consequences of its proposed action, but only to insure that

the agency has taken a “hard look” at those consequences.

Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519

(1978); Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).

The plaintiffs who challenge the adequacy of an FES have the

burden of proof on all issues, and are required to establish by a

preponderance of the evidence that the FES is inadequate,

Sierra Club v. Morton, $10 F.2d 813, 818 (Sth Circ. 1975).

The detail required in the FES is only “that necessary to estab-

lish that an agency in good faith objectivity has taken a suffi-

cient look at the environmental consequences of the proposed

action and alternatives to that action.” Save Our Sycamore v.

Metropolitan Atlanta Rapid Transit Authority, $76 F.2d 573,

576 (Sth Cir. 1978). The Court’s review of the adequacy of

the FES is governed by a rule of reason:

We are governed by a “rule of reason,” Carolina Environ-

mental Study Group v. United States, 166 U.S. App. D.C.

416, 418; 510 F.2d 796, 798 (1975), and our task is “to

determine whether the [FES] was compiled with objective

good faith and whether the resulting statement would per-

mit a decision-maker to fully consider and balance the

environmental factors.” Sierra Club v. Morton, 501 F.2d

813, 819 (Sth Cir. 1975).

Sierra Club v. Adams, $78 F.2d 389, 393 (D.C. Cir. 1978).

Upon review of the FES in the present case, the Court has

determined that the plaintiffs have not met their burden of

proof of inadequacy; the FES clearly sets forth sufficient infor-

mation to enable.the decision-maker to fully consider the

70

environmental factors involved and make a reasoned decision.

The possible effect of the proposal on rare, threatened or

endangered species, © Native American religious and cultural

issues,’ historic and cultural sites? wilderness considerations,?

human-caused fires,!° insect and disease activity,'! soil ero-

sion!? and the economy !3 are all discussed in sufficient detail

in the FES. “An [FES] need not be exhaustive to the point of

discussing all possible details bearing the proposed action...”

County of Suffolk v. Secretary of Interior, 562 F.2d 1368,

1375 (2d Cir. 1977), cert. denied, 434 U.S. 1064 (1978).

In addition, plaintiffs contend that the defendants failed

to employ an interdisciplinary approach in preparing the FES.

In fact, the FES was developed by an interdisciplinary team;!*

an archaeologist and several authorities on Hopi culture and

religion were consulted regarding historic sites and native

American religion and culture,!> a wildlife biologist and botan-

ist provided information concerning the rare species and Alpine

Tundra environment,!® and information was requested from

Hopi and Navajo religious practitioners.!?

Plaintiffs also contend that the FES is inadequate in that

defendants have overestimated the benefit of the plan to the

Flagstaff economy and have given insufficient weight to envir-

Ssee FES at 45-47, 126-127, 130, 176-177.

"See FES at 57-62, 73, 132-133, 156, 159-160.

8 see FES at 62-63.

See FES at $1, 136.

10506 FES at 126.

11 gee FES at 128-130.

12506 FES at 130.

13 see FES at 64-65.

14506 FES at 209; Kirkpatrick Affidavit € 10.

155-6 Pilles Affidavit € 6; Kirkpatrick Affidavit 4 10; FES at 61.

165-¢ Kirkpatrick Affidavit ¢ 11.

17 See FES at 57-61, 159.

71

onmental values and in so doing have subordinated Native

American religious interests to recreational and commercial

interests. However, the Supreme Court has made it clear that

in reviewing the adequacy of an FES. courts ought not to

rebalance competing policies. Strycker’s Bay Neighborhood

Council, Inc. v. Karien, 444 U.S. 223 (1980). A court may not

substitute its judgment for that of the agency as to the neces-

sity or desirability of the project in question. Jicarilla Apache

Tribe of Indians v. Morton, 471 F.2d 1275, 1279-80 (9th Cir.

1973).

In sum, the Court has determined that the FES is adequate

and that the agency took a sufficient look at the environmental

consequences of its action and alternatives 18 to its action and

therefore is in compliance with the applicable provisions of

NEPA.

F_ Endangered Species Act of 1973

Plaintiffs allege numerous violations of the Endangered

Species Act of 1973 (“ESA”), 16 U.S.C. §§ 1531 et seq. The

focus of the plaintiffs’ complaint involves Senecio Franciscanus,

the “San Francisco Peaks groundsel.” Plaintiffs claim that this

is a threatened species as defined in the ESA and that therefore

the protections of section 7 of the Act, 16 U.S.C. § 1536,

apply. The defendants, however, claim that because this plant

is not “listed” pursuant to section 1533 of the Act, it is not

entitled to the protections of section 1536 of the Act. Upon

analysis of the statute and its legislative history, the Court finds

that a species must be “listed” to be protected by the Act, and

accordingly finds that the defendants were not required to

comply with the procedures of the ESA.

Plaintiffs allege that numerous provisions of the ESA were

violated. They first contend that the decision to develop the

18506 FES at 16-17, 76111, 123-141.

We so

72

Snow Bowl constitutes a violation of 16 U.S.C. § 1536 (a)(1)

which requires federal agencies to carry out programs “for the

conservation of endangered species and threatened species

listed pursuant to Section 1533 (emphasis added).” Clearly,

S. Franciscanus would have to be listed to fall within the ambit

of this provision.

The plaintiffs’ second allegation, which is the crux of their

argument under the ESA, is that the defendants have violated

section 1536 (a) (2) which reads:

Each Federal Agency shall, in consultation with and with

the assistance of the Secretary, insure that any action

authorized, funded, or carried out by such agency (herein-

after in this section referred to as an “agency action”) is

not likely to jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of habitat of such

species which is determined by the Secretary, after consul-

tation as appropriate with affected States, to be critical,

unless such agency has been granted an exemption for such

action by the Committee pursuant to subsection (h) of this

section. In fulfilling the requirements of this paragraph

each agency shall use the best scientific and commercial

data available.

Plaintiffs claim that because the defendants never complied

with this requirement of ‘“‘consultation”!? they have clearly

violated the ESA. Defendants, however, again argue that be-

cause none of the plant species at issue have been “listed,” the

ESA does not apply and therefore the Forest Service was never

legally bound to comply with this requirement of consultation

with the Department of Interior.

19 There is evidence in the record that defendants did contact the

U.S. Fish and Wildlife Service to perform assessments; however, then

defendants did not comply with the requirements under 16 U.S.C. §

1536(b) that include a detailed written statement from the Secretary to

the federal agency involved.

73

This presents a somewhat more difficult problem for the

Court. Section (a) (2) does not expressly state that the endan-

gered or threatened species must be listed pursuant to section

1533 of the Act, it merely states that if an agency’s action will

jeopardize the continued existence of amy endangered species or

threatened species, the consultation must occur. “Endangered

species” is defined as “any species which is in danger of extinc-

tion throughout all or a significant portion of its range other

than [certain insects].” 16 U.S.C. § 1532 (b). “Threatened

species” is defined as “any species which is likely to become an

endangered species within the forseeable future throughout any

or a significant portion of its range.” 16 U.S.C. § 1532 (20).

Because neither of these definitions requires that a plant be

listed to be considered endangered or threatened. the defen-

dants argue that section 1536 (a) (2) was meant to apply to

any endangered or threatened species whether it is listed or not.

While the Court finds their argument somewhat persuasive, it

has determined, upon thorough analysis, that such an interpre-

tation cannot stand.

Pursuant to 16 U.S.C. § 1533, “the Secretary of the Inter-

ior shall by regulation determine whether any species is an

endangered species or a threatened species . .. ” and then. pur-

suant to further requirements of the statute, formally list them.

Clearly the Act intended that such a determination be left to

the Secretary of the Interior, and therefore most of the refer-

ences to “endangered” or threatened” species expressly specify

“listed pursuant to section 1533 of this title.” See 16 U.S.C.

§§ 1532 (a) (1), (c) (1), (d). However, section (a) (2), by not

expressly qualifying such species as “listed” has created an am-

biguity. Apart from a very general definition of the terms

“endangered” and “threatened,” see 16 U.S.C. §§ 1532 (6),

(20), there is no indication of how such a determination should

be made, apart from the listing by the Secretary of the Interior.

Nor is there any indication that Congress intended to leave

such a determination to the courts. Accordingly, the Court

74

must look to the legislative history for guidance as to whether

Congress intended that section 1536 (a) (2) should be read to

include species that have not been officially listed under the

express terms of section 1533 of the Act. The legislative his-

tory does not support such a conclusion.

The House Report for the 1978 amendment to the ESA

States:

The protections provided to animal and plant species

threatened with extinction are activated by the listing of

a species as “endangered”’ or “threatened.”

H. Rep. No. 1625, 95th Cong., 2nd Sess. 5 (1978). “The man-

date of Section 7 applies once a species is listed.” /d at 7.

In addition, the House Conference Report for the 1979

amendments states:

The conferees note that the purpose of a listing proposal

is to determine whether a species is endangered or threaten-

ed and should be listed as such. The protection of Section

7 [1536] should not apply until a species has been formally

listed.

H. Conf. Rep. No. 697, 96th Cong., Ist Sess. 13 (1979) (empna-

sis added).2° Based on this language and the fact that Congress

set forth no standards for a judicial interpretation of what con-

stitutes an endangered or threatened species, this Court finds

that a species must be listed by the Secretary of the Interior

before the protective provisions of the ESA apply. According-

ly, because none of the species named by plaintiffs has been

listed, the protections do not apply in this case.?!

2045 plaintiffs point out, the statutory language in question here was

included in the ESA in the 1978 amendments and the legislative history

cited to by the defendants is the House Conference Report of the 1979

amendments. However, section 1536 (d) (2) is not changed by any ‘angu-

age in the 1979 amendments, and the language is relevent as to Congress’

intent that section 7 only apply to formally listed species; it does not go

to any specific portion of the 1979 amendment.

7§

G. National Wilderness Preservation System Act of 1964

Plaintiffs allege that defendants’ authorization of the expan-

sion of the Arizona Snow Bowl interferes with the statutory

authority of the President and Congress to recommend and

designate, respectively, areas as “wilderness” under the Wilder-

ness Act of 1964, 16 U.S.C’ §§ 1131 er seg. Specifically,

plaintiffs allege that the defendants have violated 16 U.S.C. §

1132 (b), which allows the President to recommend for inclu-

sion in designated “wilderness” areas, lands contiguous to areas

formerly designated as “primitive” by the Secretary of Agricul-

ture. They claim that the decision to permit expansion deprives

the Secretary of his discretion to designate the permit area as

“wilderness.” Defendants, on the other hand, contend that

because the land on the San Francisco Peaks was not pre-

viously classified as “primitive” and because the permit area is

not “predominantly of wilderness value,” section 1132 (b) does

not apply here. The court agrees that the plaintiffs’ claim must

fail.

Although a substantial amount of land adjacent to the

Arizona Snow Bow permit area has been recommended by the

Secretary of Agriculture and the President for wilderness desig-

nation, the permit area was specifically not included due to the

2lthe piaintiff Navajo Medicinemen’s Association, in their opposition

to defendants’ motion for summary judgment, alleges that if the Court

should find that a species must be “listed” to invoke the protection of the

ESA, equity should require the defendants to treat S. Franciscanus as if it

were formally listed as threatened because of: 1) assurances in the FES

that the plant would be given full consideration under the Act; and 2) the

reason the plant is not now formally listed is due to unreasonabie delay on

the part of the Secretary of the Interior.

The Court will not extend equity principles this far; it is the Depart-

ment of Interior who makes a determination as to whether a species

should be listed, not the Forest Service. Therefore, the FES is not deter-

minative of whether a species should be given protection under the Act.

Secondly, there is insufficient evidence to support the theory of unreason-

able delay substantial enough to require the Court to force the defendants

to “list” this species.

76

various man-made disturbances that have already occurred

there. See Peterson Affidavit ¢@ 9-10, 12; FES at 6,51. None

of the recommended land was previously designated “primitive”

or “wilderness.” See Peterson Affidavit ¢ 5. Plaintiffs claim

that no further development should occur on the permit area

because it is contiguous to an area proposed for designation and

therefore the President and Congress have discretion to event-

ually include this land as wilderness under 16 U.S.C. § 1132

(b). However the statute clearly states that “nothing herein

contained shall limit the President in proposing, as part of his

recommendations to Congress, the alteration of existing boun-

daries of primitive areas or recommending the addition of any

contiguous area of national forest lands predominantly of

wilderness value."’ 16 U.S.C. § 1132 (b) (emphasis added).

Plaintiffs rely on the case of Parker v. United States, 309 F.

Supp. $93 (D. Colo. 1970), aff'd, 448 F.2d 793 (10th Cir.

1971). cert. denied, 405 U.S. 989 (1972), which enjoined the

Forest Service from the sale of timber proposed to be cut from

national forest land because it would deprive the President and

Congress of their discretion to designate it as wilderness. How-

ever the case is easily distinguishable and serves to reinforce

the defendants’ position. The National Forest land in Parker

was contiguous to a designated “primitive” area and therefore

fell within the ambit of 16 U.S.C. § 1132 (b). Secondly, the

contiguous land in Parker was found to meet the “minimum

requirements of suitability for wilderness classification” which

is defined by the Wilderness Act as:

A wilderness, in contrast with those areas where man and

his own works dominate the landscape, is hereby recog-

nized as an area where earth and its community of life are

untamed by man, where man himself is a visitor who does

not remain. An area of wilderness is further defined to

mean in this chapter an area of undeveloped Federal land

retaining its primeval character and influence, without per-

manent improvements or habitation, which is protected and

77

managed so as to preserve its natural conditions and which

(1) generally appears to have been affected primarily by the

forces of nature, with the imprint of man’s work substan-

tially unnoticeable; (2) has outstanding opportunities for

solitude or a primitive and unconfined type of recreation;

(3) has at least five thousand acres of land or is of suffi-

cient size as to make practicable its preservation and use in

an unimpaired condition; and (4) may also contain ecolog-

ical, geological, or other features of scientific, educational,

scenic or historical value. 16 U.S.C. § 1131 (c).

The permit area land which is at issue in the instant action

clearly does not fall within this definition. At the time when

the President recommended adjacent lands for wilderness desig-

nation,?* there was a ski lodge, ski runs, all of which necessi-

tated the clearing of trees. The land is not “an area of undevel-

oped Federal land retaining its primeval characteristics and

influence, without permanent improvements or human habita-

tion” and “without the imprint of man’s work.”

Accordingly, because the adjacent land which hus been

recommended for wilderness designation is not “primitive”

and because the permit area is not land “predominantly of

wilderness value,” the plaintiffs’ claim under section 1132 (b)

must fail.

H. Multiple-Use Sustained-Yield Act of 1960

The plaintiffs herein allege that the defendants have abused

their discretion under the Multiple-Use Sustained-Yield Act of

1960 (“MUSYA”), 16 U.S.C. § 528, which declares that “the

225 ven if section 1132 (b) were to apply, the fact that the President

has already considered this area for wilderness status and chose not to in-

clude the permit area is also an indication that his statutory discretion

would not be interfered with by this proposal.

78

national forests are established and shall be administered for

outdoor recreation, range, timber, watershed and wildlife and

fish purposes,”’ and section 529 which states that “the Secre-

tary of Agriculture is authorized and directed to develop and

administer the renewable surface resources of the national

forests for multiple use and sustained yield of the several

products and services obtained therefrom... due consideration

shall be given to the relative values of the various resources in

particular areas."’ Plaintiffs assert that the Forest Service acted

arbitrarily in approving the proposed expansion and by favor-

ing the Flagstaff economy and recreation over religious signifi-

cance and other uses. This argument must fail.

The decision as to the proper mix or uses in any given area

is left to the sound discretion and expertise of the Forest Ser-

vice. Sierra Club v. Hardin, 325 F. Supp. 99 (D. Alas. 1971).

Courts have declined to involve themselves in the executive

decision making absent a showing that the decision is arbitrary,

capricious or an abuse of discretion. As the Court of Appeals

for the Ninth Circuit stated in declining to review a Forest

Service decision:

this Court has neither the technical expertise nor the intui-

tive knowledge gained from daily acquaintance with this

subject to provide an informed review of executive decision

making.

Hi-Ridge Lumber Co. v. United States, 443 F.2d 452, 455 (9th

Cir. 1971).

MUSYA does not require that all uses will exist in a forest,

or that all uses will exist in equal amounts. The record demon-

strates that other multiple uses exist in the San Francisco Peaks,

including grazing, timber cutting, water and energy delivery

systems, communication facilities and wildlife protection. See

Kerrick affidavit { 9. In addition, the Forest Service consider-

ed the religious significance of the Peaks and determined that

the religious practices of the Native Americans were compatible

with the other multiple uses of the Peaks and the minor expan-

79

79°

sion for recreational purposes within the 777 acre permit area.

The San Francisco Land Use Plan approved on July 23, 1974,

specifically designates the Snow Bow! area for recreational

purposes. See FES at 160.

Accordingly, the Court finds that the defendants did not

act arbitrarily pursuant to its MUSYA obligations in approving

the expansion of the Snow Bowl facilities.

1. National Historic Preservation Act

and Executive Order 11593

Plaintiffs contend that the defendants have failed to comply

with the requirements of the Nationa! Historic Preservation Act

(“NHPA”), 16 U.S.C. § § 470 er seq., and the regulations pro-

mulgated thereunder, 36 C.F.R. §§ 800 er seq., for two rea-

sons. First, they contend that in approving expansion of skiing

and recreational activities and in widening the Snow Bowl

road, defendants violated the provisions of the Act with respect

to two National Register properties in the vicinity of the permit

area. Secondly, plaintiffs contend that defendants did not com-

ply with the Act concerning the eligibility of the San Francisco

Peaks themselves for inclusion in the National Register. Defen-

dants, on the other hand, contend that formal compliance was

not yet required under the Act but will be done before approval

of any construction. They claim that an informal determina-

tion that the two registered properties in the vicinity of the

permit would not be affected either directly or indirectly was

sufficient. They also claim that the Peaks themselves are in-

eligible for listing on the National Register and therefore are

not entitled to the protections of the Act.

Section 470a of the NHPA authorizes the Secretary of the

Interior “to expand and maintain a national register of dis-

tricts, sites, buildings, structures and objects significant in

American History, architecture, archaeology and culture”

known as the National Register and establishes the Advisory

80

Council on Historic Preservation. In addition, 16 U.S.C. § 470f

provides that:

The head of any Federal agency having direct or indirect

jurisdiction over a proposed Federal or federally assisted

undertaking in any state and the head of any Federal

department or independent agency having authority to

license any undertaking shall. prior to the approval of the

expenditure of any Federal funds on the undertaking or

prior to the issuance of any license, as the case may be, take

into account the effect of the undertaking on any district,

site, building, structure or object that is included in

This text is long and has been trimmed here. Open the source document for the complete record.