Opposition Brief — Wyoming Sawmills, Inc. v. United States Forest Service

(4) Be Tis U.S.

ee MAY 4 - 2005

> CLERK

Su The

Supreme Court of the Gnited States

+

WYOMING SAWMILLS, INC.,

Petitioner,

v.

UNITED STATES FOREST SERVICE;

MICHAEL JOHANNS, Secretary of Agriculture;

DALE BOSWORTH, Chief, United States Forest Service;

RICK CABLES, Regional Forester, Region II; and

BILL BASS, Forest Supervisor, Bighorn National Forest;

and

MEDICINE WHEEL COALITION ON

SACRED SITES OF NORTH AMERICA,

Respondents.

-

vw

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

4

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

JACK F. TROPE ANDREW W. BALDWIN

Counsel of Record BALDWIN & CROCKER, P.-C.

ASSOCIATION ON AMERICAN P.O. Box 1229

INDIAN AFFAIRS Lander, WY 83520-1229

966 Hungerford Drive, Suite 12-B (307) 332-3385

Rockville, MD 20850

(240) 314-7155

Attorneys for Respondent Medicine Wheel

Coalition on Sacred Sites of North America

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

1.

QUESTIONS PRESENTED

Whether petitioner has standing to challenge an

Historic Preservation Plan, memorialized by a Pro-

grammatic Agreement developed pursuant to the Na-

tional Historic Preservation Act, 16 U.S.C. 470 et seq.,

that was signed by the United States Forest Service,

federal and state historic preservation agencies, the

local county government and representatives of Indian

tribes and whose purpose is to better protect the Big-

horn Medicine Wheel National Historic Landmark.

Whether the Historic Preservation Plan violates the

Establishment Clause, U.S. Const., Amend 1.

ii

CORPORATE DISCLOSURE STATEMENT

There is no parent corporation of the Medicine Wheel

Coalition on Sacred Sites of North America and no publicly

held company owns shares in the corporation.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................cccscccsscccssscseees i

CORPORATE DISCLOSURE STATEMENT ............. ii

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STATEMENT OF THE CASE .................ccceeeee: ere 1

IE Ey bithinnisncttnaccsdndsbsiddscecectiennbinitontecpeencnceseens 8

I. THE TENTH CIRCUIT RULING THAT

PETITIONER LACKED STANDING IS

CORRECT, IS BASED UPON THE SPE-

CIFIC FACTS OF THIS CASE, AND WILL

NOT HAVE SIGNIFICANT PRECEDEN-

MG WER cccsccvnsncnessccnencciccccesocentsbebecbitdnaness 8

II. THE ESTABLISHMENT CLAUSE ISSUE

THAT THE PETITIONER SEEKS TO HAVE

THIS COURT REVIEW IS NOT PROPERLY

BEFORE THIS COURT ..................ccccsssssseeeees 15

SE IPUIETD cnsccccccconcnsencvecnsonseccconbioadonsencodatadacsosones 16

iv

TABLE OF AUTHORITIES

Page

CASES:

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

CRE cnnsrtncnnsinistetansinntintcrapecsinteseasiiaiiauiiietabintiniiiti 11

Arkla Exploration Co. v. Texas Oil & Gas Corp.,734

F.2d 347 (8th Cir. 1984), cert. den., 469 U.S. 1158

COU iiciciash cists asihieleciaislsenicheeatinaa dali dahiiin da cioalgaccnladalatinna 12

Bryant v. Yellin, 447 U.S. 352 (1980) ........... ee eeeseeceeeeeeees 12

Duignan v. United States, 274 U.S. 195 (1929) ...........0... 15

Foremaster v. City of St. George, 882 F.2d 1485

(10th Cir. 1989), cert. den., 495 U.S. 910 (1990)........... 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)........... 5

Lyng v. Northwest Indian Cemeteries Assn., 485

SE, Se CN iiictnenccidbainisadacetentmenaiianhanbiiteinpatibdibimatpsense 15

Watt v. Energy Action Ed. Found., 454 U.S. 151

CIID cchehsinisentistitaiegellidaabnaai Siitiheinahitsbsdescisdatepeansintinddessanas 12

Wyoming Sawmills v. United States Forest Service,

179 F Supp.2d 1279, (D.Wyo. 1999) affd. 383 F.3d

REE Ce Ga ee iiininictinsttstaieneintiieniicisiadiildaiinks 5, 14

Wyoming Sawmills v. United States Forest Service,

383 F.3d 1241 (10th Cir. 2004) owe 11, 13, 14

. UNITED STATES CONSTITUTION:

I Sy ecesistitiintnctintdeiinsaciitiidincigijnticignncaieidiibininipcianieatiin 9,15

I ea iisicictebinlieinicaiintinatciiiiasiiceiiaciiaMiaaiicsidibikciintidiicnainciatalios 8

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES:

ee es Ee MI sscihisiccisiinleinsitiebadnnaacacenaiinbaibakeeiie 2

16 U.S.C. 470f (Section 106 of the National Historic

FROG CONGUE FAG, “TRRREIR. Pisecnecncsssciiniiccrnsasscusentstssacnassece 5

16 U.S.C. 470h-2(f) (Section 110(f) of the NHPA)............... 5

BD Fs, Ge eae biashsinvccninaccincnipibadhatigsebicaiiapiienaimicanae 5

REGULATIONS:

ee ee ee I initiinnitiitacdeii his dis tsadlb basanites 5

EXECUTIVE ORDERS:

Executive Order 13,007 (1996)....................cccccssccsssscccsscscess 5

1

BRIEF IN OPPOSITION

Respondent Medicine Wheel Coalition on Sacred Sites

of North America respectfully requests that the Petition

for Writ of Certiorari be denied. |

ee

A

STATEMENT OF THE CASE

The questions as presented by the petitioner are based

upon an incomplete and, at times, erroneous recitation of

the facts. Specifically, the claim that 50,000 acres of the

Bighorn National Forest are “now off limits to timber

harvesting” and being managed as a “sacred site” where

all human activity other than Native American religious

activity is being excluded is a patent falsehood. Rather, the

factual underpinning of this case is as follows.

The Bighorn Medicine Wheel National Landmark is a

stone circle approximately 80 feet in diameter with twen-

ty-eight spokes extending from a central cairn to the

perimeter. It was constructed hundreds (perhaps thou-

sands) of years ago and is located at an altitude of 10,000

feet in the Bighorn National Forest of Wyoming. Resp. Ap.

at 19.' To Plains tribes, the Medicine Wheel and Medicine

Mountain on which it is located is an important traditional

cultural property and sacred ceremonial site actively

utilized by traditional cultural and religious practitioners

* Resp. Ap. refers to the Appendix filed with the Tenth Circuit

Court of Appeals by the defendants/respondents United States Forest

Service et al. Aplt. Ap. refers to the Appendix filed with the Tenth

Circuit by petitioner Wyoming Sawmills (the appellant before the Tenth

Circuit).

2

of those tribes. See, e.g., Resp. Ap. at 19, 136, 149-163, 252,

Aplt. Ap. at 95, 283.

In 1988, the Bighorn National Forest (“Forest”) began

to recognize that its management of the Medicine Wheel

was inadequate and developed a proposal to modify

management of the site. Extensive public meetings were

held and comments received. Resp. Ap. at 23-24. That

process resulted in the preparation of a draft Environ-

mental Impact Statement (EIS) in May 1991. The EIS

recognized that the management of the Medicine Wheel

National Historic Landmark by the Forest had failed to

prevent the degradation of the Medicine Wheel, including

damage to and destruction of archeological resources. It

also found that there had been a failure to recognize and

protect Native American cultural values. Resp. Ap. at 24-

28.

Following the issuance of the draft EIS, the Advisory

Council on Historic Preservation informed the Forest that

it needed to fulfill its requirements under the National

Historic Preservation Act (“NHPA”), 16 U.S.C. 470 et seq.,

by engaging in a Section 106° review and consultation.

Resp. Ap. at 115-117. In July 1991, the Forest commenced

the section 106 process. Resp. Ap. at 120. In January 1992,

the Forest agreed (as did the Advisory Council and Wyo-

ming State Historic Preservation Office) that the Medicine

Wheel Coalition on Sacred Sites of North America should

be given consulting party status within the meaning of the

NHPA and stated that “[t]he objectives of the 106 process

... Will be to consult on development of a long range

management strategy for the Medicine Wheel.” Resp. Ap.

* Section 106 is codified at 16 U.S.C. 470f.

3

at 766. Later that year, the Medicine Wheel Alliance and

Big Horn County Commissioners were also granted

consulting party status.’ Resp. Ap. at 174.

After a number of meetings, including a large three-

day public meeting, and exchanges of correspondence

between the consulting parties, see Resp. Ap. at 23-24,

179-186, 189-190. Aplt. Ap. at 91, a Memorandum of

Agreement (“MOA”) was signed by the six consulting

parties in June 1993. Aplt. Ap. at 91-100, Resp. Ap. 240,

245-246. The MOA recognized that the increased numbers

of “recreational visitors” had caused “unprecedented

damage to the Medicine Wheel and surrounding area” and

that the Medicine Wheel and Medicine Mountain qualified

as a “traditional cultural property” within the meaning of

the NHPA. Aplt. Ap. at 91. The MOA established a tempo-

rary management system that included some limitations

on vehicular access, on-site interpreters “to help monitor

public use, and to educate and sensitize visitors to the

traditional cultural importance of the Medicine Wheel”

and accommodation of traditional ceremonial use by

Indians. Aplt. Ap. at 92, 94, 95. The MOA also provided

that the signatories would work toward a Programmatic

Agreement and Historic Properties Management Plan to

ensure the “long-term protection and continued traditional

cultural use of the Medicine Wheel” and the “development

of management goals which provide for public enjoyment

of the Medicine Wheel in a manner that does not conflict

* The Medicine ‘heel Coalition is a political advocacy organization

of traditional cultural leaders designated by several Plains tribes. Resp.

Ap. at 191-195. The Alliance is an activist group including both

members of federally recognized Indian tribes and environmentalists.

Resp. Ap. at 175-177. Neither organization is a religious organization.

4

with the traditional cultural or archaeological values that

make this Landmark nationally significant.” Aplt. Ap. at

96.

Following additional consultation between the parties

and with the public, see, e.g., Resp. Ap. at 196-198, 225,

236-237, 243-247, the parties to the MOA, as well as the

Federal Aviation Administration which operates a radar

dome on Medicine Mountain, entered into a Programmatic

Agreement (“PA1”) in August 1994. PAl1 continued the

interim MOA management procedures and also included

procedures governing the development of a long-term

Historic Preservation Plan (“HPP”). Aplt. Ap. at 382-400.

A two year process was then commenced during which

archeological and ethnographic surveys were prepared,

consultations held and draft HPP provisions were circu-

lated for review and comment. Aplt. Ap. at 147-148, 235-

254, Resp. Ap. at 5333. The entire process continued to be

open to the public, see, e.g., Resp. Ap. at 201-202, 204-205,

219-222, and specifically included representatives of the

local community — the Big Horn County Commissioners.

In September 1996, a Programmatic Agreement

(“PA2”) and HPP were approved by the seven consulting

parties. Resp. Ap. 2510-2511; Aplt. Ap. at 423-428. On

October 7, 1996, the Forest adopted Forest Plan Amend-

_ ment No. 12 to implement the HPP. Aplt. Ap. at 573-575.

The primary purpose of the HPP was “to establish a

process for integrating the preservation and traditional

uses of historic properties with the multiple use mission of

the Forest Service, in a manner that gives priority to the

protection of the historic properties involved by continuing

5

traditional cultural use consistent with Section 110(f)* of

the National Historic Preservation Act.” Wyoming Saw-

mills v. United States Forest Service, 179 F.Supp.2d 1279,

1287 (D.Wyo. 1999), affd. 383 F.3d 1241 (10th Cir. 2004).

In so doing, it recognized the Forest’s obligation under the

American Indian Religious Freedom Act, 42 U.S.C. 1996,

and "xecutive Order 13,007 (1996) “to manage the Medi-

cine Wheel and the Medicine Mountain environment in a

manner that is sensitive to and respects the spiritual

importance of these locations to Native American tradi-

tional religious practitioners.” Aplt. Ap. at 314. However,

as noted by the Big Horn County Commissioners in their

introductory statement to the HPP, it does so “while

providing for multiple use of Forest Lands that contribute

to our economy and lifestyle.” Id.

Among other things, the HPP provides for:

¢ Consultation with all of the parties to the

HPP whenever a governmental undertaking

may impact upon the Medicine Wheel HPP

Management Area. This consultation is in

lieu of consultation pursuant to section 106

implementing regulations. 36 C.F.R. Part

800. The Management Area varies depending

upon the activity involved. At its largest, it is

equal to approximately 18,000 acres or less

than 2% of the land area of the Forest which

contains 1,107,670 acres. Resp. Ap. at 228,

4073. Of the 18,000 acres, only 10% is cur-

rently suited for timber production. Aplt. Ap.

at 347. The Forest reserves the authority to

make all final decisions regarding projects in

the Management Area, Aplt. Ap. at 273, and

* 16 U.S.C. 470h-2(f).

6

there is a specific requirement to provide the

public with the opportunity for input as well.

Aplt. Ap. at 299-300.

Restrictions upon vehicular access to the

Medicine Wheel along FDR 12 (the road that

goes past the Wheel) similar to those in the

initial MOA; visitors to the site must hike

approximately a mile and a half to reach the

site; vehicular traffic on FDR 12 is permitted,

however, in the case of handicapped and

emergency vehicles or vehicles accessing land

northwest of the Medicine Wheel for ranch-

ing, hunting or other recreational purposes.

Aplt. Ap. at 299, 301. In 1998, 20,055 people

visited the Medicine Wheel, of which 841

were Native Americans. Resp. Ap. at 223-

224. Thus, there has continued to be a con-

siderable amount of tourist visitation at the

site in the post-HPP era.

Future development of a timbering plan for

the area which incorporates both the statu-

tory and forest health needs of the Forest

Service, as well as traditional Indian per-

spectives; logging is specifically permitted

when necessary “for maintaining the overall

health of the Forest”; FDR 12 is closed to log-

ging traffic; this closure, however, did not

change the de facto status of FDR 12 since

timber has not been hauled on that road

within recent memory and, in fact, a timber

sale was withdrawn in the 1980s because of

concerns about logging truck traffic near the

Medicine Wheel. Aplt. Ap. at 348, Resp. Ap.

at 216. All suitable timber within the Man-

agement Area can be accessed by FDR 12 be-

low the closure or by other roads. Resp. Ap.

at 2828. No restriction upon hauling timber

7

on other roads in the consultation area, spe-

cifically FDR 11 and 14, is stated in the HPP.

¢ Continuation of intensive grazing within the

Management Area, but management of the

grazing to protect springs in the area and di-

rect the grazing away from the vicinity of the

Medicine Wheel. Aplt. Ap. at 362-364.

¢ Retention of the quality of the viewshed from

Medicine Wheel and Medicine Mountain.

Aplt. Ap. at 309-310.

¢ Time-limited opportunities for traditional

ceremonial use of the site without distur-

bance, upon request. Aplt. Ap. at 314-315.

¢ Continued monitoring of the area by the par-

ties to the agreement; said monitoring meet-

ings are specifically open to the public. Aplt.

Ap. at 368.

¢ Submission of a nomination to the Park Ser-

vice for expansion of the Medicine Wheel Na-

tional Historic Landmark boundary. Resp.

Ap. at 207.

In 1996, the Horse Creek Timber Sale was proposed

for bidding. During the scoping process, some limited

consultation took place with the consulting parties to the

HPP. Resp. Ap. at 218. Respondent Medicine Wheel

Coalition specifically indicated that its representatives

needed to visit the site as part of the consultation process.

Resp. Ap. at 248. Although this never occurred, a bid

package was prepared and disseminated by the Forest.

Aplt. Ap. at 513-533. In September 1997, the sale was

discussed at a meeting of the parties to the HPP. It became

clear at that time that adequate consultation, as required

by Section 106 of the NHPA, had never taken place. Resp.

8

Ap. at 249-251. As a result, the sale was postponed until

further consultation could take place. Aplt. Ap. at 534. A

review was done by the Medicine Wheel District Ranger

wherein he concluded that not only was consultation

inadequate, but that 2 moratorium on logging in roadless

areas and inadequacies in the environmental analysis

dictated withdrawal of the sale for the present time. Aplt.

Ap. 563-570. However, the Forest specifically reserved the

right to list the sale in the future and to use FDR 11 and

14 for logging trucks if appropriate. Aplt. Ap. at 571-572.

i’

vv

ARGUMENT

I. THE TENTH CIRCUIT RULING THAT PETI-

TIONER LACKED STANDING IS CORRECT,

IS BASED UPON THE SPECIFIC FACTS OF

THIS CASE, AND WILL NOT HAVE SIGNIFI-

CANT PRECEDENTIAL VALUE

Article III of the Constitution limits judicial power to

the resolution of “cases” or “controversies”. One of the

requirements of a case or controversy is that a plaintiff

must have standing to challenge the action sought to be

adjudicated in the lawsuit. As stated in Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-561 (1992), in order for a

plaintiff to have standing, it must show that it has suf-

- fered an injury in fact that involves a “legally protected

interest” that is both “concrete and particularized” and

“actual or imminent, not conjectural or hypothetical”, that

the injury is traceable to the actions of the defendant and

that it is “likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.”

Pn te ee

9

Petitioner rests its claim of standing to challenge

government action based upon an alleged violation of the

Establishment Clause, U.S. Const., Amend 1, on two

grounds — a lost opportunity to bid for timber contracts

within portions of the Forest in general, and for the

proposed Horse Creek timber sale specifically, and because

it “has direct contact with government endorsement of

religious symbols” in a public place. (Pet. Br. at 7-11) It

asserts that the negative holdings of the Tenth Circuit

Court of Appeals on both of these issues conflict with

Supreme Court precedent and precedent from other

Circuits. However, the conflicts that petitioner presents

are illusory when the actual facts of this case are consid-

ered and compared to the past precedents cited by peti-

tioner. Unlike the cases cited, the facts here show that

there is no injury in fact attributable to the HPP and, even

if injury is assumed, it is not redressable by a decision

from this Court or any other Court.

Petitioner’s lack of standing results from a straight-

forward application of the law of standing to the facts of

this case. As the District Court below observed, “[t]he facts

do not suggest that Sawmills had an entitlement to log

anywhere in Big Horn National Forest.” 179 F.Supp.2d at

1293. Thus, it is questionable whether petitioner has a

“legally protected interest” sufficient to provide for stand-

ing.

Moreover, the record does not support a finding that

the HPP has reduced the level of logging in the Bighorn

National Forest. There are over 1.1 million acres in the

Bighorn National Forest. Only about 18,000 acres are

within the Management Area (also referred to as the Area

of Consultation or “AOC”) covered by the Historic Preser-

vation Plan and only 1,800 acres within the AOC are

_

10

suitable for timber production.’ Aplt. Ap. at 347. According

to the Forest Plan, the Forest as a whole has a potential

annual output of 49.0 million Board Feet, whereas the

Forest Plan’s annual objective for timber production is

only 16.5 million Board Feet. Resp. Ap. at 4107. Clearly,

there are many other areas within the Forest available for

timber production. Thus, it is not surprising that peti-

tioner has made no showing that the Forest is offering

fewer board feet of timber for sale because of the HPP.

Indeed, in its Environmental Assessment for the HPP, the

Forest concluded that there would be no change in outputs

projected in the Forest Plan as a result of the HPP. Aplt.

Ap. at 635. That being the case, petitioner has shown no

injury in fact from the HPP.

In addition to its general complaint, petitioner specifi-

cally complains that it lost an opportunity to bid for timber

when the Horse Creek sale was withdrawn. But the Forest

had no obligation to offer this sale at all and petitioner had

no legally protected interest in the sale. Moreover, a

memorandum from the Medicine Wheel District Ranger to

the Forest Supervisor outlined a number of other problems

which independent of the HPP caused the proposed timber

sale not to be bid.® In short, the memo concluded that “we

would have a hard time defending our decision [to allow

the timber sale] based on process violations, conflicting

* The HPP does not actually forbid logging within the AOC - it is

permitted if necessary for forest health. Aplt. Ap. at 349-350.

* He concluded that the 1988 environmental assessment (“EA”)

was inadequate, the 1997 amendment to the EA was not legally

permissible, that there were inconsistencies in the analysis on issues

such as elk cover and regeneration and that there was a moratorium on

timber sales in roadless areas that affected the viability of the Horse

Creek sale. Aplt. Ap. at 567-570.

11

data, and incomplete NEPA analysis.” Aplt. Ap. at 567-570.

His memorandum makes clear thet the Forest postponed

the proposed sale because of a number of issues which had

nothing to do with the HPP. All that took place pursuant to

the HPP was consultation; the HPP mandated no particu-

lar decision as a result of that consultation. Thus, there

was no direct nexus between the HPP and the injury that

has been alleged by the petitioner based upon the with-

drawal of the Horse Creek sale.

Even if it is assumed that the HPP caused petitioner

injury, the likelihood of Court action redressing this injury

is slim. Petitioner has no more than a hope that if the HPP

is overturned, the Forest might authorize Horse Creek or

some other timber sale, its bid might be accepted by the

Forest Service and it might gain profit as a result. Even if

the HPP and related documents were invalidated, the

Forest Service would not be compelled as a result to re-bid

the Horse Creek sale or offer any other sale or to award

any bid to petitioner. Thus, it is very unlikely that the

alleged injury suffered by Sawmills will be redressed by a

favorable court decision. In short, the denial of standing

was entirely consistent with Article III standing jurispru-

dence on this issue.

As the Tenth Circuit fully explained in its opinion,

Wyoming Sawmills, Inc. v. United States Forest Service.

383 F.3d 1241, 1248-1249 (10th Cir. 2004), the factual

bases for standing in the cases cited by petitioner were

entirely different from this case and the cases are fully

distinguishable. In Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 211 (1995), the plaintiff’s claim was that it

was unable to compete on an equal basis because of

affirmative action requirements for Government contracts

that were being offered on an ongoing basis. The injury in

12

fact was the loss of the ability to compete “on an equal

footing” with other companies for contracts that would be

offered by the government, a legally-protected harm which

the court could redress, as opposed to a loss of profit

caused by a discretionary government decision not to offer

the contract at all.’

In Watt v. Energy Action Ed. Found., 454 U.S. 151,

160-161 (1981), plaintiff California’s claim was that the

failure of the federal government to adequately test

different bidding systems pertaining to off-shore drilling

harmed its ability to maximize the amount of money from

leases that would be awarded — money that it had a

statutory right to receive. The Court found that an Order

requiring the Secretary to test different systems would

have a reasonable likelihood of securing California's

legally-protected interest and thus the injury in fact was

redressable.

Finally, in Bryant v. Yellin, 447 U.S. 352, 366-368

(1980), the Court found that if certain irrigation restric-

tions were enforced, it was very likely the land that the

plaintiffs wanted to purchase would become available.

Thus, unlike here, there was a “substantial likelihood”

that the relief sought would address plaintiff’s injury.

Petitioner raises two other arguments in its effort to

_ convince this Court to grant certiorari. The first argument

is based upon a line of cases where individuals who were

” The 8th Circuit case cited by petitioner, Arkla Exploration Co. v.

Texas Oil & Gas Corp., 734 F.2d 347, 349, 353-354 (8th Cir. 1984), cert.

den., 469 U.S. 1158 (1985) is similar. It involved the right of the

plaintiff to compete for a lease that the government decided to award,

not an abstract loss of opportunity to bid for lands that might never be

leased.

13

in contact with religious symbols on public land have had

standing to raise First Amendment claims. Petitioner

asserts that the denial of its claim of standing is in conflict

with those cases. Essentially, the “directly affected” test

applied in the line of cases cited by petitioner has been a

mechanism to provide standing to individuals asserting

non-economic injuries. See, e.g., Foremaster v. City of St.

George, 882 F.2d 1485, 1489 (10th Cir. 1989), cert. den.,

495 U.S. 910 (1990). In most cases, those individuals have

been forced to take steps to avoid the displays in question

and have thereby been prevented from engaging in normal

civic activities. Id. at 1489-1490.

As the Tenth Circuit held, however,

[ijn its attempt to explain how it has been di-

rectly affected, plaintiff repeatedly refers to the

alleged restrictions on timber cutting which it

says will follow from the HPP... [Thus wle dis-

cern no allegation separate from the alleged loss

of opportunity for profitable logging.

(383 F.3d at 1247]

In short, petitioner does not represent a group of

individuals who are “directly affected” in a non-economic

manner by the display of a religious symbol or sponsorship

of a religious activity. As the Court below concluded, this

for-profit corporation simply did not and was unable to

assert anything but an economic injury. Thus, there is no

legal inconsistency between the holding below and the

14

religious symbolism cases. Rather, the facts here are

simply different."

Finally, petitioner attempts to get this Court’s atten-

tion by mischaracterizing language in the Tenth Circuit

decision that “[a]s an artificial person, plaintiff has not

shown how it experienced the kind of constitutional injury

that has been found in such cases.” 383 F.3d at 1247.

Petitioner attempts to argue that this constitutes a broad

holding that corporations have no standing to bring First

Amendment claims. Pet. Br. at 11-14. The Tenth Circuit

held nothing of the sort. In fact, it specifically found that it

did not need to determine whether a corporation can make

a claim based upon non-economic loss’ because the only

concrete and particular injury in fact that the petitioner

here actually alleged was the loss of the opportunity to bid

for a contract to harvest timber for profit — a purely eco-

nomic loss. 383 F.3d at 1247.

In short, the Tenth Circuit opinion was well grounded

in the law and was based upon the specific facts pres nt in

* These cases can also be distinguished factually by the nature of

the “symbol” involved here which is not inherently religious to most

people who view it. Rather, it is perceived by most Americans as a site

of great archeological and historic significance that was in fact recog-

nized as such when it was designated a National Historic Landmark.

Indeed, as the District Court noted, even if the petitioner were “of-

fended” by the Medicine Wheel, the Court “could not redress that injury

because even if it struck down the HPP it could not eliminate the

Medicine Wheel as it is a protected National Monument.” 179

F.Supp.2d at 1295.

* We would argue that a for-profit corporate entity cannot be

“religiously offended” within the meaning of these cases, but agree with

the Tenth Circuit that such a finding was not necessary to deny

standing to petitioner given the facts of this case.

15

this case. Thus, this case is of minimal precedential

significance and certiorari ought to be denied.

Il. THE ESTABLISHMENT CLAUSE ISSUE THAT

THE PETITIONER SEEKS TO HAVE THIS

COURT REVIEW IS NOT PROPERLY BE-

FORE THIS COURT

Neither the District Court nor the Tenth Circuit Court

of Appeals ruled upon petitioner’s claim that the Historic

Preservation Plan violates the Establishment Clause, U.S.

Const. Amend 1. Under those circumstances, it would be

premature for the Court to consider this question. Rather,

in the unlikely event that the court were to accept certio-

rari and reverse on the standing issue, it would be appro-

priate for the lower courts to consider this issue in the first

instance. See Duignan v. United States, 274 U.S. 195, 200

(1929) (“It is only in exceptional cases coming here from

the federal courts that questions not pressed or passed

upon below are reviewed.”)

Suffice it to say, the petitioner’s Establishment Clause

claim is based upon a complete distortion of the facts. It is

simply untrue that all but Native Americans are excluded

from 50,000 acres of the National Forest. See p. 4-6 of this

brief, supra. Were the lower courts to review this issue,

they would find that the Historic Preservation Plan clearly

has many secular purposes and falls squarely within this

Court's jurisprudence on the accommodation of religious

free exercise, including the Court’s observations about

accommodating Native American activities at sacred sites

in Lyng v. Northwest Indian Cemeteries Assn., 485 U.S.

454 (1988) (although it held that the First Amendment

Free Exercise Clause did not require that a road through a

Native American sacred site be prohibited, the Court

16

commended and accepted as constitutional a variety of

governmental actions designed to ameliorate the impact of

the road upon religious practitioners because those actions

would accommodate the free exercise of religion by the

affected practitioners).

Thus, this Court should reject Petitioner’s Question 2

as unsuitable for certiorari.

.

CONCLUSION

For all of the above reasons, this Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

~ JACK F. TROPE

Counsel of Record

ASSOCIATION ON

AMERICAN INDIAN AFFAIRS

966 Hungerford Drive, Suite 12-B

\. Rockville, Maryland 20850

(240) 314-7155

ANDREW W. BALDWIN

BALDWIN & CROCKER, P.C.

P.O. Box 1229

Lander, Wyoming 83520-1229

(307) 332-3385

Attorneys for Respondent

Medicine Wheel Coalition on

Sacred Sites of North America

MAY 4, 2005

Supreme Cru:

oN] Se ele

No. 04-1175 JUN 13 2005

pes SORREEUATECLRK |

In The

Supreme Court of the Gnited States

y

ah

WYOMING SAWMILLS, INC.,

Petitioner,

\

V.

UNITED STATES FOREST SERVICE, ET AL.,

cea Respondents.

42

Vv

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

,

Vv

PETITIONER’S REPLY BRIEF

@

WILLIAM PERRY PENDLEY*

*Counsel of Record

JAYME SHIP

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Petitioner

ETN Cte a come ERNE sc aaiipnitineemtshemeademmmaianiaastee

rtm

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

I. WYOMING SAWMILLS HAS STANDING TO

RAISE ITS ESTABLISHMENT CLAUSE

A. Wyoming Sawmills Lost The Opportunity

B.

C.

E.

To Bid On A Timber Salle ............................

Wyoming Sawmills Has A Right To Nonar-

bitrary Land Classification.....................0++.

Wyoming Sawmills Was “Directly Affected” -

By An Establishment Clause Violation...

This Court’s Religious Symbol Jurispru-

dence Applies To The Designation Of Fed-

eral Land As An Off-Limits “Sacred Site” ...

Wyoming Sawmills May Maintain A First

Amendment Challenge ...0............cccccesseeeees

II. THE FOREST SERVICE’S ACTIONS VIO-

LATE THE ESTABLISHMENT CLAUSE.........

CONCLUSION

6

TABLE OF AUTHORITIES

Page

Cases

ACLU of Georgia v. Rabun County Chamber of

Commerce, 698 F.2d 1098 (11th Cir. 1983)...............0....0. 3

Adarand Constructors, Inc. v. Pefia, 515 U.S. 200

COI Es cis oassisasth catccanastcedsuceea ics on cmnsiakscpabiceaatincuinapicbancctieconasee Sok 1

Allen v. Hickel, 424 F.2d 944 (D.C. Cir. 1970)... 3

Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th

Oe AB eG cetaceans 3, 5

Arkla Exploration Co. v. Texas Oil & Gas Corp., 734 ,

P26 O47 (ih Cit, 10GB iia ik eka 2

Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980)........... 8

Board of Education of Kiryas Joel Village School

District v. Grumet, 512 U.S. 687 (1994)...............cceeeeeeees 7

Bryant v. Yellen, 447 U.S. 352 (1980)...0....... ccc ceeeeceseeeeeees 1

Corporation of Presiding Bishop of Church of Jesus

Christ of Latter-day Saints v. Amos, 483 U.S. 327

CGF ashdcciid sscdos kn dati cocdndncctmceb ens acksipetcatnasanadepicmaioeiariteds 7

County of Allegheny v. ACLU, 492 U.S. 573 (1989)............ 3

Foremaster v. City of St. George, 882 F.2d 1485

Chis Cae SO ii sie ic ee aks 3

Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.

PONE coco puiskaias lovscdacssdca Atessanslekcendescsiiaha ich aia inbintagsmmcachoowense 3

Lee v. Weisman, 505 U.S. 577 (1992) ..............cccesscccesseceeeees 7

Lyng v. Northwest Indian Cemetery Protective Ass’n,

SR LTB A TD sis siiccsinccccsnechseiascicdessciccavens 4, 5, 6, 7,8

TABLE OF AUTHORITIES — Continued

Mountain States Legal Foundation v. Glickman, 92

FB Bel 3228- CG. Ore TOG) sci siccncccescinescnsassnsapesosens

Northeastern Florida Chapter of the Assoc. General

Contractors of America v. City of Jacksonville,

SO UT; GG CD aia ia ins seis cs diSeinetectskesscieostese

Region 8 Forest Service Timber Purchasers Council

v. Alcock, 993 F.2d 800 (11th Cir. 1993)...................

Saladin v. City of Milledgeville, 812 F.2d 687 (11th

oe | sf BREAN case eets pose aUbcnme Matis ney pure onan ae

Stone v. Graham, 449 U.S. 39 (1980)...........ccccecsseeeees

Suhre v. Haywood County, 131 F.3d 1083 (4th Cir.

BOOT scssisijucsceniacsasvissinsansssincessiadasintadicepsidiobrcaboaicnsiies

Watt v. Energy Action Educational Foundation, 454

Lo Rp 1a 3g 2 5 8 Batre cope rest pena ee ter ancl ene omni aie ropnerer ee

1

ARGUMENT

I. WYOMING SAWMILLS HAS STANDING TO

RAISE ITS ESTABLISHMENT CLAUSE CLAIM.

A. Wyoming Sawmills Lost The Opportunity

To Bid On A Timber Sale.

The U.S. Forest Service (“Forest Service”) and the

Medicine Wheel Coalition on Sacred Sites of North Amer-

ica (“Coalition”), relying on Region 8 Forest Service Timber

Purchasers Council v. Alcock, 993 F.2d 800 (1lth Cir.

1993), argue that Wyoming Sawmills suffered no injury in

fact because Wyoming Sawmills has no “legal right” to

harvest timber. Respondents’ Opposition (““Opp.”), 7; Coali-

tion Opp., 10. However, the Forest Service and the Coalition

fail to explain why the decision of the Eleventh Circuit in

Region 8, like the decision of the Tenth Circuit in Wyoming

Sawmills, is not in direct conflict with the holdings of this

Court. See e.g., Adarand Constructors, Inc. v. Pefia, 515

U.S. 200, 211 (1995) (wrongful denial of opportunity to bid

competitively for federal highway construction contracts

constitutes “an invasion of a legally protected interest”);

Northeastern Florida Chapter of the Assoc. General Con-

tractors of America v. City of Jacksonville, 508 U.S. 656

(1993) (“injury in fact” required for standing is inability to

compete in bidding process); Bryant v. Yellen, 447 US.

352, 367-68 (1980) (plaintiffs had standing because they

sought to bid for property that.“might become available” if

a federal law took effect); Watt v. Energy Action Educa-

tional Foundation, 454 U.S. 151 (1981) (loss of an oppor-

tunity to bid for the exploration and development of

mineral resources constitutes an injury). In fact, the Forest

Service and the Coalition, by raising Region 8 have demon-

strated that the split described by Wyoming Sawmills

2

between this Court and the Tenth Circuit is ever widen-

. 1

ing.

B. Wyoming Sawmills Has A Right To Nonarbi-

trary Land Classification.

The Forest Service argues that Wyoming Sawmills’

reliance on Arkia, is misplaced because Wyoming Sawmills

does not seek to “correct” the “bidding process.” Respon-

dents’ Opp., 7-8. In so arguing the Forest Service conven-

iently ignores the express holding of Ark/ia, which is that

the plaintiff had the right to have the federal lands in

question “not classified arbitrarily” and to have the Secre-

tary of Interior “utilize his discretion properly” when

determining whether the specific federal lands would be

leased for oil and gas exploration. Arkla, 734 F.2d at 354.

Similarly, Wyoming Sawmills has the right to have 50,000

acres of the Bighorn National Forest “not classified arbi-

trarily” and to have the Forest Service “utilize [its] discre-

tion properly,” that is, consistent with the Establishment

Clause, when determining whether those 50,000 acres

would be available for timber production.

* The rulings of the D.C. Circuit and the Eighth Circuit are

consistent with the holdings of this Court. Arkla Exploration Co. v.

Texas Oil & Gas Corp., 734 F.2d 347 (8th Cir. 1985); Mountain States

Legal Foundation v. Glickman, 92 F.3d 1228, 1233 (D.C. Cir. 1996) (a

right to federal timber contracts is not required to show injury in fact).

3

C. Wyoming Sawmills Was “Directly Affected”

By An Establishment Clause Violation.

The Forest Service argues that Wyoming Sawmills’

“direct contact” with the decision by the Forest Service to

manage 50,000 acres as a “sacred site” was not a cogniza-

ble injury, because “the psychological consequences pre-

sumably produced by observation of conduct with which

one disagrees ... is not an injury sufficient to confer

standing under [Article] III.” Respondents’ Opp., 9. Not

surprisingly, the Forest Service cites no legal authority, let

alone a ruling by this Court, for this novel proposition,

which distorts and, if adopted, would destroy this Court’s

Establishment Clause jurisprudence. By so arguing, the

Forest Service attempts to convert the constitutional

violation that was given when the Forest Service desig-

nated 50,000 acres of federal land as a “sacred site” and off

limits to Wyoming Sawmills into a non-justiciable emo-

tional psychological reaction to offensive conduct.

Moreover, by so arguing, the Forest Service places

itself in conflict with this Court, e.g., County of Allegheny

v. ACLU, 492 U.S. 573 (1989), as well as the Fourth, Sixth,

Tenth, Eleventh, and D.C. Circuits, which recognize

Establishment Clause standing based solely on allegations

of direct personal contact with the offensive governmental

embrace of a religious symbol in a public place. Suhre v.

Haywood County, 131 F.3d 1083 (4th Cir. 1997); Hawley v.

City of Cleveland, 773 F.2d 736 (6th Cir. 1985); Saladin v.

City of Milledgeville, 812 F.2d 687 (11th Cir. 1987); ACLU

of Georgia v. Rabun County Chamber of Commerce, 698

F.2d 1098 (11th Cir. 1983); Allen v. Hickel, 424 F.2d 944

(D.C. Cir. 1970); Foremaster v. City of St. George, 882 F.2d

1485 (10th Cir. 1989); Anderson v. Salt Lake City Corp.,

475 F.2d 29 (10th Cir. 1973). Were it left to the Forest

4

Service, it would have dismissed all of these plaintiffs

because the psychological consequences of observing

conduct that they disagreed with did not provide them

Article IIT standing.

D. This Court’s Religious Symbol Jurispru-

dence Applies To The Designation Of Fed-

eral Land As An Off-Limits “Sacred Site.”

The Forest Service argues, as Wyoming Sawmills

anticipated in footnote 2 of its Petition, that the Tenth

Circuit’s decision in Wyoming Sawmills does not conflict

with those of other Circuits because the cases relied on by

Wyoming Sawmills involved governmental displays of

sectarian religious symbols on government property, and

the present case does not involve the display of any reli-

gious item or symbol. Petition, 9; Respondents’ Opp., 10.

The Forest Service’s distinction is one without a

difference, as this Court recognized in Lyng v. Northwest

Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988),

where it declared:

Nothing in the principle for which [the American

Indians] contend, however, would distinguish

this case from another lawsuit in which they (or

similarly situated religious objectors) might seek

to exclude all human activity but their own from

sacred areas of the public lands.

Lyng, 485 U.S. at 452-53. Whether the religious symbol is

the Christian cross, carved from the trees of a forest, the

Judeo-Christian Ten Commandments, carved from stone

from beneath the earth, or an American Indian Medicine

Mountain, whose sacredness includes the trees, the stone,

and the earth itself, this Court’s Establishment Clause

5

jurisprudence applies. Why else would this Court, as it did

in Lyng, declare, “[t]he First Amendment must apply to all

citizens alike, and it can give to none of them a veto over

_public programs that do not prohibit the free exercise of

religion.” Lyng, 485 U.S. at 452.

The Forest Service did not “display” Medicine Moun-

tain’s 20,000 acres and the surrounding 30,000 acres; they

comprise, obviously, naturally occurring geological and

vegetative features. However, like the governments in the

cases cited by Wyoming Sawmills, the Forest Service is

endorsing the religious significance of those features to

some American Indians — that is, that they are sacred —

thereby violating the Establishment Clause.

In the cases cited by Wyoming Sawmills, what is

constitutionally offensive is not the particular symbol or

words, but instead the religious significance of those

symbols or words. Both Suhre v. Haywood County, 131

F.3d 1083 (4th Cir. 1997), and Anderson v. Salt Lake City

Corp., 475 F.2d 29 (10th Cir. 1973), for example, involve

challenges to placement of the Ten Commandments in a

public place. Although the Ten Commandments are just

words carved in stone, Jews and Christians believe that

the Ten Commandments came directly from God. It is this

belief, and the government’s endorsement of it, that makes

placement of a stone monument containing the Ten Com-

mandments in a public place a violation of the Establish-

ment Clause. See, Stone v. Graham, 449 U.S. 39 (1980).

In the Bighorn National Forest, it is not the 50,000

acres of a geological formation to which Wyoming Saw-

mills objects. Instead, it is the endorsement by the Forest

Service of the religious belief of some American Indians

that those 50,000 acres are “sacred” and must be placed off

6

limits that is constitutionally objectionable. The Forest

Service’s argument to the contrary conflicts with the

decisions of this Court and those of the Circuits that the

Establishment Clause applies to all religions.

E. Wyoming Sawmills May Maintain A First

Amendment Challenge.

The Forest Service declined to defend its earlier

argument and the subsequent ruling of the Tenth Circuit

in response to that argument that, “as an artificial person,

[] has not shown how it experienced the kind of constitu-

tional injury found in such cases.” Wyoming Sawmills, 383

F.3d at 1247; App., 12 (emphasis added). The Forest

Service’s argument was unsupportable and the decision

that resulted from it is indefensible, as Wyoming Sawmills

previously established. Petition, 10.

The decision of the Tenth Circuit that Wyoming

Sawmills lacks standing to maintain its Establishment

Clause challenge conflicts with the decisions of this Court

and the Circuits. This Court should grant this Petition to

resolve that conflict.

Il. THE FOREST SERVICE’S ACTIONS VIOLATE

THE ESTABLISHMENT CLAUSE.

The Forest Service argues that the unique trust

relationship between the Indian tribes and the United

States justifies the Forest Service’s “accommodation” of

the religious demands of some American Indians. Respon-

dents’ Opp., 12. Ironically, the Forest Service relies on

Lyng v. Northwest Indian Cemetery Protective Association,

485 U.S. 439 (1988), given that this Court, in Lyng, re-

fused to grant to the American Indian Tribe what the

7

Forest Service-granted to the American Indian religious

advocates in the instant case. Specifically, this Court

refused to “accommodate” the religious interests of the

Tribe in Lyng because to have done so would have violated

the Establishment Clause. In fact, Lyng made clear that

the demands for privacy by American Indians do not

justify the government’s closure of public lands, even

temporarily. Lyng, 485 U.S. at 452-53.

Moreover, although not discussed explicitly in Lyng,

this Court made clear subsequently that purported uncon-

stitutional government endorsement of religion is not a

constitutional “accommodation” unless it lifts a “discern-

able burden” on the free exercise of religion, Lee v. Weis-

man, 505 U.S. 577, 607 (1992), that was “government-

created.” Corporation of Presiding Bishop of Church of

Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327,

338 (1987). The Forest Service failed to identify any

“discernable burden” that was “government-created” on

the free exercise of American Indian religion within the

50,000 acres at issue. Furthermore, even if the Forest

Service were attempting to accommodate American Indian

religion by removing “discernible burden[s],” which it has

never claimed was the purpose of its closure of 50,000

acres of federal land, the “accommodation doctrine” is “not

a principle without limits.” Board of Education of Kiryas

Joel Village School District v. Grumet, 512 U.S. 687, 706

(1994). “At some point, accommodation may devolve into

an unlawful fostering of religion.” Corporation of Presiding

Bishop of Church of Jesus Christ of Latter-day Saints v.

Amos, 483 U.S. at 334-335.

Nevertheless, the decision of the Forest Service to

close 50,000 acres of the Bighorn National Forest to timber

harvesting because it is a “sacred site” does not implicate

8

the accommodation doctrine. Instead, in response to the

demands for privacy and solitude of American Indian

religious practitioners, the very demands that this Court

rejected in Lyng, the Forest Service prohibited within

those 50,000 acres all uses that “detract from the spiritual

... Values associate[d] with [Medicine Mountain].” 10th

Cir. App., 304. Thus, as the Forest Service acknowledged

in its decision documents, the 20,000 acres of Medicine

Mountain and the surrounding 30,000 acres are now

managed as a “sacred site.” 10th Cir. App., 306. The Forest

Service’s actions clearly violate the Establishment Clause.

See, Lyng, 485 U.S. at 429; Badoni v. Higginson, saees F.2d

172 (10th Cir. 1980).

,

Vv

CONCLUSION

For all of the above reasons, this Court must grant

this Petition for Writ of Certiorari.

Respectfully submitted,

WILLIAM PERRY PENDLEY*

*Counsel of Record

JAYME SHIP

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Petitioner

Submitted June 13, 2005.