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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983

## Text

, 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 t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1371%3A2. Public record. Not legal advice.