Opposition Brief — Bear Lodge Multiple Use Ass'n v. Babbitt

Supreme Court, US.

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No. 99-1045 SED Dupes

IN THE oe a |

Supreme Court of the United Su.

OCTOBER TERM, 1999

BEAR LODGE MULTIPLE USE ASSOCIATION,

A WYOMING NON-PROFIT CORPORATION, ANDY PETEFISH

D/B/A TOWER GUIDES, GARY ANDERSON,

KENNETH D. ALLEN, GREGORY HAUBER,

AND WES BUSH, INDIVIDUALS,

Petitioners,

Vv.

BRUCE BABBITT, SECRETARY OF THE INTERIOR,

ROGER G. KENNEDY, DIRECTOR OF THE NATIONAL PARK SERVICE,

KAREN WADE, REGIONAL DIRECTOR OF THE ROCKY MOUNTAIN REGION

OF THE NATIONAL PARK SERVICE, CHAS CARTWRIGHT,

SUPERINTENDENT OF DEVILS TOWER NATIONAL MONUMENT, AND

THE NATIONAL PARK SERVICE,

Respondents,

AND

CHEYENNE RIVER SIOUX TRIBE, ROMANUS BEAR STOPS,

BURDELL BLUE ARM, ARVOL LOOKING HORSE, AND

STEVEN VANCE,

Respondent Intervenors.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR INTERVENORS IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI

STEVEN C. EMERY* STEVEN J. GUNN

THOMAS J. VAN NORMAN Indian Law Resource Center

Cheyenne River Sioux Tribe 601 E Street, SE

P.O. Box 590 Washington, D.C. 20003

Eagle Butte, SD 57625 (202) 547-2800

(605) 964-6687

*Counsel of Record BRIAN S. KOUKOUTCHOS

28 Eagle Trace

Mandeville, LA 70471

February 22, 2000 (504) 626-4409

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS

i

QUESTIONS PRESENTED

1. Whether petitioners have standing to challenge the

Final Climbing Management Plan for Devils Tower National

Monument — a plan that discourages rock climbing in June

out of respect for American Indian religious use of the

monument — when their supposed injuries consist of nothing

more than unsubstantiated economic losses, subjective fears

about hypothetical future climbing restrictions, and

philosophical objections to the Plan’s accommodation of

Indian religious practices.

2. Whether the Final Climbing Management Plan is a

lawful accommodation of religion under the Establishment

Clause of the First Amendment, since it does not advance or

endorse Indian religion, but merely lifts a burden imposed on

Indian religious practices by the government’s ownership and

management of a sacred site.

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TABLE OF CONTENTS

QUESTIONS PRESENTED

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TABLE OF AUTHORITIES

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A. Indian Religious Practices at Devils Tower

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B. The Final Climbing Management Plan

C. The Proceedings Below

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REASONS FOR DENYING THE WRIT

I. PETITIONERS’ ALLEGED INJURIES DO NOT

SATISFY THE ARTICLE Il] REQUIREMENTS

FOR STANDING

A. Petitioners Failed To Show Any Economic

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B. Petitioners’ Professed Fear of a Future

Climbing Prohibition Is Conjectural and Does

Not Constitute Injury-In-Fact ooo eee

C. Petitioners’ “Fervent Objection” to the

Voluntary Closure Is Not an Injury-In-Fact

D. The Tenth Circuit’s Decision Does Not

Create a Split Among the Circuits

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15

17

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Il. THE CLIMBING PLAN IS PRECISELY THE KIND

OF CONSTITUTIONAL ACCOMMODATION OF

RELIGION APPROVED BY THIS COURT IN

LYNG V. NORTHWEST INDIAN CEMETERY

PROTECTIVE ASS'N (1988) 00.0.0... sssssssssssssssssssscsecooee 20

A. The Constitution Permits Accommodations

of Religious Practices on Government Lands ___ 21

B. The Climbing Plan Is Consistent with this

Court’s Establishment Clause Jurisprudence 26

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CONCLUSION 29

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TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) 0... 13

A.C.L.U. v. Allegheny County, 842 F.2d 655

i a ga ae 17

A.C.L.U. v. Rabun County, 698 F.2d 1098

Leg, SAO eC HONE neta eh MOO 18-19

Allegheny County v. A.C.L.U., 492 U.S. 573

J 5: SCG RATER AAEMIREMD Ris TY cs Ps Megan wR AES 17, 26, 27

Allen v. Hickel, 424 F.2d 944 (D.C. Cir. 1970). 18

Anderson vy. Salt Lake City Corp., 475 F.2d 29

GO FE Ora eesti nomsidarainaeguiois 18

Badoni v. Higginson, 638 F.2d 172 qo" Cir. 1980),

cert. denied, 452 U.S. 954 (1981) o.oo... esssssssssssscsenensssseess 20

Bell v. Little Axe Indep. School. Dist., 766 F.2d 1391 |

Ce as at lac, 19 |

Bennett v. Spear, 520 U.S. 154 (1997)... 14 |

|

Board of Educ. of Kirvas Joel v. Grumet, |

GEE RT I oi ccaaiscsessssisshicuatsebsnssastcouans 27, 28 |

Brashich y. Port Authority, 791 F.2d 224 |

Fn A Re SANT eMC HRs ANS SOREN MRT 25 |

Vv

Capitol Square Review Bd. v. Pinette,

PEED TOO OTE ss ssscaciee aga ne: eee 26, 28

Carter v. Broadlawns Medical Center, 857 F.2d 448

i Cir. 1988), cert. denied, 489 U.S. 1096 (1989) 25-26

Corporation of Presiding Bishop v.

Amos, 483 U.S. 327 (1987) 23, 26-27, 28-29

Cruz v. Beto, 405 U.S. 319 (1972) ooo ooocccccsssssssssssseeeeees.. 26

Donnelly v. Lynch, 691 F.2d 1029 (1" Cir. 1982). 17

Edmond v. Robinson, 517 U.S. 120] (1996). 16-17, 20

Employment Div. v. Smith, 494 U.S. 872 (1990)... a

Flast v. Cohen, 392 U.S. 83 (1968) 000... ccc. 20

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

EO ON ee a 18

Friends of Earth v. Laidlaw Envtl Servs.,

120 S.Ct. 693 (2000)... sressssssssssssssssssssssseseseeeessssssscse 13

Hawley v. Cleveland, 773 F.2d 736 (6" Cir. 1985)... 25

Hobbie v. Unemployment Appeals Comm'n,

tae ss | ok) ON OA ne 21,27

Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985) 26

Larkin v. Grendel's Den, 459 U.S. 116 Cee 26, 27

Lee v. Weisman, 505 U.S. 577 (1992) 15, 29

vi

Lemon v. Kurtzman, 403 U.S. 602 (1971) ooo. 26

Los Angeles v. Lyons, 461 U.S. 95 (1983) ooo ccc cceeceeeees 13

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)... 9,10

Lynch v. Donnelly, 465 U.S. 668 (1984) |... 17, 25, 26, 28

Lyng v. Northwest Indian Cemetery Protective

ABs, 435 US: GI iis stases asccuseaisieoeuancnans 20-23

Northwest Indian Cemetery Protective

Ass'n y. Lyng, 795 F.2d 688 (9" Cir. 1986) occ ccccceese: 22

Northwest Indian Cemetery Protective Ass'n

v. Peterson, 565 F.Supp. 586 (N.D. Cal. 1983) 00000. 22

O’Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979) oo, 25

Peyote Way Church of God v. Thornburgh,

922 F.24 1210(5" Cir. WON) ec aanes 27

Rupert v. Director, U.S. Fish & Wildlife Service,

957 F.2d 32 ("Cin 1980 eee eee 27

Saladin v. Midgeville, 812 F.2d 687 (11" Cir. 1987)........ 18

School Dist. of Abington Township v. Schempp,

STR US. BOS CIGD isc rscdenceietascoaiieeenaanlon 26

Shumway vy. Albany County School Dist.,

826 F.Supp. 1320 (D. Wyo. 1993) 25

Suhre v. Haywood County, 131 F.3d 1083

(4° Cir. 1997) 17, 18

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Vii

Texas Monthly v. Bullock, 489 U.S. 1 (1989) 21

Tyler v. Judges of Court of Registration,

Te Nn TO es er a 13

Valley Forge Christian College v.

Americans United for Separation of

Church and State, 454 U.S. 464 (1982) 9-10, 11, 16, 17

Van Zandt v. Thompson, 839 F.2d 1215 (7" Cir. 1988). 25

Walz v. Tax Comm'n, 397 U.S. 664 (1970)

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Legislation:

Act of Feb. 28, 1887, 19 Stat.254(1887), 2

American Indian Religious Freedom Act.

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Regulations:

32 CAPR. § 553.22 (1999) ooo ccssascssscecsecssssesesneseseeees 24

Oe oe ih i ae to 24

tach cieniad, Tocris siege EO REED 24

Miscellaneous:

Department of the Interior and Related Agencies

Appropriations Bill, 1989, H.R. 713, 100° Cong.,

2d Sess. (1988) 23

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Vill

Fort Laramie Treaty of April 29, 1868,

15 Stat. 635 (1868)

to

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to

Presidential Proclamation No. 658, 34 Stat. 3236 (1906)...

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STATEMENT OF THE CASE

This case involves a challenge to the constitutionality of

the National Park Service’s Final Climbing Management

Plan for Devils Tower National Monument in Wyoming.

This plan discourages, but does not prohibit, rock climbing at

the Tower during June in order to accommodate American

Indians who consider the Tower sacred and whose religious

practices are disturbed by rock climbing. Petitioners filed suit

alleging the plan violates the Establishment Clause of the

First Amendment. The question presented is whether

petitioners have standing to challenge the climbing plan,

when their “injuries” consist of nothing more than: (a)

supposed economic losses that they cannot prove; (b)

subjective fears about what restrictions the Park Service

might impose in the future: and (c) fervent philosophical

objections to the government’s accommodations.

A. Indian Religious Practices at Devils Tower.

Devils Tower National Monument is a sacred site for the

Cheyenne River Sioux and Indians from numerous other

tribes. Petitioners’ Appendix (“App.”) 5.' For centunes,

Indians have performed religious and cultural ceremonies

there, including prayer offerings, vision quests, the leaving of

prayer bundles, sweat lodge rituals, and the Sun Dance. /d. at

5-6. These ceremonies continue today. /d. For the Cheyenne

River Sioux, traditional use of the Tower is:

vital to the health of Our nation and to our self-

determination as a Tribe. Those who use the butte to

pray become stronger. They gain sacred knowledge

' The Cheyenne River Sioux refer to Devils Tower as “Mato T ipila,”

which means “Bear Lodge” in Lakota, or “He Hota Paha,” which means

“Grey Hor Butte” in Lakota. App. 5 n.2. For ease of reference, however,

the Tribe shall refer to the monument hereinafter as “the Tower.”

2

from the spirits that helps us preserve our Lakota

culture and way of life. They become leaders. Without

their knowledge and leadership, we cannot continue

to determine our own destiny.

Id. at 7 (quoting Bear Stops Aff. in D. Ct.).

The Tower is within the ancestral homeland of the Great

Sioux Nation.” It was acquired by the United States in the late

nineteenth century,’ and was made the nation’s first national

monument in 1906.* The National Park Service now manages

the monument, admitting nearly half a million visitors every

year, and permitting many recreational uses, including rock

climbing on the Tower. App. 12 & n.8.

Rock climbing interferes with the religious and cultural

practices of Indians at the Tower. The court of appeals noted

that “[i]n addition io placing permanent and temporary metal

‘protection’ in the rock, climbing requires climbers to yell

certain commands to their partners. Climbers have also taken

pictures of Native Americans in ceremonies, removed sacred

prayer bundles, and intruded on solitude.” App. 11. This

interference has prevented many Indians from fulfilling the

spiritual purposes of their ceremonies, and it has caused

others to discontinue their use of the Tower altogether.” For

the Cheyenne River Sioux, rock climbing on the Tower

“affects us psychologically and spiritually. . .. When people

climb on this sacred butte and hammer metal objects into it,

the butte is defiled and our worship is intruded upon. It is like

they pounded something into our bodies.” CRST App. 6-7

(Looking Horse Aff. in D. Ct.).

* Fort Laramie Treaty of April 29, 1868, 15 Stat. 635 (1868).

* Act of Feb. 28, 1887, 19 Stat. 254 (1887).

* App. 12 (citing Proclamation No. 658, 34 Stat. 3236 (1906)).

* See, e.g., CRST App. 3-4, 7, 163, 191. (“CRST App.” refers to the

Tribe’s appendix in the court of appeals.)

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B. The Final Climbing Management Plan.

The Park Service issued the Final Climbing Management

Plan (“Climbing Plan” or “FCMP”) in February 1995, after

lengthy consultations with rock climbers, American Indians,

and other interested parties. App. 13. The Climbing Plan

regulates climbing activities in order “to protect the natural

and cultural resources of Devils Tower and to provide for

visitor enjoyment and appreciation of this unique feature.” Jd.

(quoting FCMP i).

The Park Service found that climbing has dramatically

increased in recent years and that it has adversely:

affected nesting raptors, soils, vegetation, the

integrity of the rock, the area’s natural quiet, and

the rock’s physical appearance. Some American

Indians have complained that the presence of

climbers on the sacred butte. . . has adversely

impacted their traditional activities and seriously

impaired the spiritual quality of the site.

App. 11 (quoting FCMP iii).°

The Climbing Plan restricts climbing, through a variety of

measures, to protect the Tower’s wildlife, vegetation, soils,

and historical significance. Large parts of the Tower are

closed for months every year to protect falcon nests and

fledglings, FCMP 28; parts of the summit and summit edge

. Despite the recent increase in rock climbing at the Tower, climbers

still constitute a small percentage of overall park visitors. Of the half

million people who visit the park annually, only 1.3%, or a few thousand,

are climbers. App. 10, 12 n.8. Before the management plan was adopted,

the average number of climbers who visited the Tower in June was just

over one thousand, or 0.25% of annual visitation. /d. at 10. The number of

June climbers has since declined considerably. See id. at 70.

4

are closed to protect fragile soil, vegetation, and bird nests,

id. at 27-28; installation of new climbing bolts is forbidden to

preserve the physical integrity of the Tower, id. at 26; and

climbing in certain areas is forbidden to protect the 100-year-

old Stake Ladder Route, id. at 6.’ See also App. 13-14.

Petitioners do not challenge any of these restrictions.

The Climbing Plan also attempts to reduce climbing to

accommodate the centuries-old religious use of the Tower by

Indians.* The plan discourages, but does not prohibit, rock

climbing in June, a culturally significant month when the

Cheyenne River Sioux and other Indians come to the Tower

to conduct ceremonies. App. 14. Climbers are “asked to

voluntarily refrain from climbing on Devils Tower during . . .

June.” /d. (quoting FCMP i). The decision to climb or not

remains entirely voluntary: “Climbers can _ regulate

themselves by deciding if they want to refrain from June

climbing out of respect for American Indian cultural values.”

Id. (quoting FCMP 22).

Petitioners’ repeated characterization of this voluntary

climbing policy as the “June Climbing Ban,” Petition (“Pet.”)

2, 4, 5, 6, 11, 16, 23, is therefore a total fabrication.”

” The Climbing Plan is reprinted in its entirety at pages 87-200 of the

petitioners’ appendix in the court of appeals

* The plan recognizes the Tower's historical and contemporary

significance as “a sacred site” to many Indian tribes. App. 5. The Tower is

ehgible for listing on the National Register of Historic Places as a

“traditional cultural property.” /d.

* Onginally, the Climbing Plan prohibited commercial climbing

guide activities on the Tower during June. However, in April 1996,

petuuoners filed a motion for a preliminary injunction seeking to enjoin

implementation of this prohibition. App. 28-29. The district court granted

the motion on June 8, 1996. /d. at 41. In November 1996, the National

Park Service revoked the commercial climbing prohibition. App. 45

5

The Park Service has also posted a sign at the base of the

Tower encouraging visitors to Stay on the designated trail.

App. 14. The sign reads: “The Tower is sacred to American

Indians. Please stay on the trail.” Jd. at 14 n.9. Off-trail

activities often interfere with Indian religious practices. See

id. at 11.

The stated goal of the voluntary closure to climbing in

June is a “significant reduction in the number of climbers on

Devils Tower each June.” FCMP 23. The Climbing Plan

contains no mandatory or coercive provisions and, indeed,

expressly disavows enforcement efforts: “The NPS will not

enforce the closure, but will rely on (a) climbers regulating

themselves and (b) a new educational program to motivate

climbers and other park visitors to comply.” FCMP 22.

During June, the Park Service’s interpretive program — which

runs throughout the year and addresses climbing and other

aspects of the Tower’s history — “explains the religious and

cultural significance that the Monument has among some

American Indians.” App. 15-16. Participation in the

interpretive program is, of course, entirely voluntary.

The Climbing Plan states that if, at some time in the

future, the Park Service determines that the educational

program and voluntary closure are unsuccessful, it will

consider several further steps, including, but not limited to:

(a) revise the climbing management plan; (b)

reconvene a climbing management plan work group;

(c) institute additional measures to further encourage

compliance; (d) change the duration and nature of the

voluntary closure; (e) convert the June closure to

mandatory; (f) write a new definition of success for

the voluntary closure.

App. 15 (quoting FCMP 23).

6

Preliminary data indicate that the voluntary closure has

been successful, resulting in an 85% reduction in recreational

rock climbing in June. App. 70. Consequently, the Climbing

Plan has remained in place unchanged since November 1996.

C. The Proceedings Below.

Petitioners filed their second amended complaint in this

action in the U.S. District Court for the District of Wyoming

in December 1996. They sought to enjoin the Park Service

from maintaining the voluntary closure to climbing in June,

the sign asking visitors to stay on the designated trails, and

the interpretation program, App. 45-46.'° They argued that

these features of the Climbing Plan promote Indian religions

in violation of the Establishment Clause and that they also

violate the Park Service’s own management policies.

The Cheyenne River Sioux Tribe and four of its spiritual

leaders intervened in the lawsuit to defend the National Park

Service’s accommodations. The individual intervenors and

other members of the Tribe worship at the Tower in June.

They are among the class of individuals whose religious use

of the Tower is accommodated by the Climbing Plan.

On April 2, 1998, the district court issued a decision

upholding all three of the challenged provisions of the

Climbing Plan. App. 62.'!

'° Petitioners also sought to enjoin the mandatory prohibition of

commercial climbing contained in the original Climbing Plan, even

though the court had already issued a preliminary injunction against that

prohibition and the Park Service had rescinded it in November of 1996.

App. 45-46.

'' Inexplicably, petitioners characterize the district court's decision as

a demal of a “motion for summary judgement [sic].” Pet. 2. There was no

motion for summary judgment in this case. App. 16 n.10.

7

The court dismissed petitioners’ challenge to the

interpretive program for lack of standing. The only injury

alleged by petitioners with respect to the program was that it

“indoctrinated” school children in Indian religions under the

guise of educating them about the heritage of the Tower,

App. 51, 53. The district court held that petitioners lacked

Standing because none of the petitioners’ allegations or

affidavits or other evidence established that any of the

individual petitioners are parents of “indoctrinated” children

or that any such parents are members of petitioner Bear

Lodge Multiple Use Association (“Bear Lodge”). /d. at 53.

The court also dismissed petitioners’ challenge to the

Park Service's trail sign for lack of standing. Petitioners

alleged that the — sign “coerce[s]” individuals into

“participating in Native American religions by not allowing

them to approach the Tower.” App. 53. But petitioners never

alleged that they were in fact coerced; the only injury they

alleged was that some Bear Lodge association members were

parents of children who had been “coerced.” /d. at 53-54. But

petitioners’ own affidavits did not support this allegation, and

the court held that, “to assume that the injury complained of

somehow relates to the parties in this case would be to

blindly step beyond the record.” Jd. at 54. '”

Reaching the merits on petitioners’ remaining claim, the

court ruled that the voluntary closure to climbing in June

does not violate the Establishment Clause or the National

Park Service’s management policies. App. 62. The court

ruled that this measure is a legitimate accommodation of

Indian religious practices, “carefully crafted to balance the

competing needs of individuals using Devils Tower National

Monument while, at the same time, obeying the edicts of the

" The court also dismissed as moot petitioners’ challenge to the long-

since rescinded ban on commercial climbing. App. 50.

8

Constitution.” /d. The court held that the voluntary closure

has neither the purpose nor the effect of endorsing Indian

religions and it does not entangle the government in religious

affairs. /d. at 56-61.

Petitioners appealed the ruling that the voluntary closure

does not violate the Establishment Clause. They “abandoned

their argument, totally rejected by the district court, that the

interpretive program and sign injured school children visiting

the Monument.” App. 17 n.11. They also abandoned their

argument that the voluntary closure violates Park Service

policies and their challenge to the rescinded commercial

climbing ban.

The Tenth Circuit held that petitioners lacked standing to

challenge the voluntary closure because they failed to

establish that they were injured in any way by the closure.

App. 18-19.

e Since the closure was voluntary, the individual petitioners

remained free to climb the Tower in June — and, in fact,

all of them have continued to climb in June. App. 18.

e The Tenth Circuit noted that the district court found that

petitioner Andy Petefish, a commercial climbing guide,

“did not substantiate his claim of economic injury as a

result of the voluntary closure, and he has provided no

additional substantiation here.” App. 18-19. Therefore,

there was no economic injury to provide standing.

e Finally, petitioners allleged that other members of

petitioner Bear Lodge had been “coerced” into complying

with the June closure out of fear that, if climbing

continued in June, the Park Service might one day

institute a mandatory closure. App. 17, 19. The Tenth

Circuit held that any such future development was

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9

entirely “remote and speculative” and “hypothetical” and

therefore did not confer standing. Jd. at 19.

The court of appeals found the petitioners’ lack of

standing dispositive and did not reach their Establishment

Clause arguments. App. 20.

REASONS FOR DENYING THE WRIT

I. PETITIONERS’ ALLEGED INJURIES DO NOT

SATISFY THE ARTICLE III REQUIREMENTS

FOR STANDING.

One of the “landmarks setting apart the ‘Cases’ and

‘Controversies’ that are of the justiciable sort referred to in

Article III. . . is the doctrine of standing.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). At an “irreducible

constitutional minimum,” the standing doctrine requires a

party to establish that he or she has “suffered an ‘injury in

fact’— an invasion of a legally protected interest which is (a)

concrete and particularized, and (b) actual or imminent, not

conjectural or hypothetical.” /d.

In Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S. 464, 467-69

(1982), the plaintiffs challenged a government conveyance of

property to a church-related college as a violation of the

Establishment Clause. They argued that they had standing

because they had suffered ‘“‘an ‘injury in fact’ to their shared

individual right to a government that shall make no law

respecting the establishment of religion.” /d. at 482 (citations

omitted). This Court disagreed:

Although respondents claim that the Constitution has

been violated, they claim nothing else. They fail to

identify any personal injury suffered by them as a

10

consequence of the alleged constitutional error, other

than the psychological consequence presumably

produced by observation of conduct with which one

disagrees. That is not an injury sufficient to confer

standing under Art. III, even though the disagreement

is phrased in constitutional terms.

Id. at 485-86. The petitioners’ allegations of injury in this

case boil down to nothing more than what the Court rejected

in Valley Forge.

A. Petitioners Failed To Show Any Economic Injury.

Petitioners allege that the voluntary June closure caused

Andy Petefish to suffer economic injury to his commercial

climbing guide service. Pls.’ 2" Am. Compl. at 4 68. The

district court conducted an evidentiary hearing and found that

Petefish’s claims of financial injury were “unsupported by

any credible evidence” and “plainly without merit.” App. 39

n.8. The Tenth Circuit reached the same conclusion: “the

district court found commercial climbing guide Andy

Petefish did not substantiate his claim of economic injury as

a result of the voluntary closure, and he has provided no

additional substantiation here.” App. 18-19.

Petitioners continue to assert “lost business” and

~“economic injury,” Pet. 7, 13 n.8, but mere assertions are not

enough, especially at this late stage of the proceedings. The

burden of establishing injury-in-fact is “not [a] mere pleading

requirement{] but rather an indispensable part of the

plaintiff's case.” Lujan, 504 U.S. at 561. While general

allegations of injury may suffice at the pleading stage,

ultimately those allegations must be “supported adequately

by the evidence.” /d. The courts below were unanimous in

finding that petitioners failed to support Petefish’s allegations

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with evidence, notwithstanding the many opportunities they

had to do so in all the years this case has been in the courts.”

Attempting to distract the Court from this failure,

petitioners try to conjure a conflict between the Tenth

Circuit’s decision and this Court's ruling that “standing may

be predicated on non-economic injury.” Valley Forge, 454

U.S. at 486. Petitioners argue that the Tenth Circuit held that

“one alleging a violation of the Establishment Clause must

demonstrate economic injury,” Pet. 13 (emphasis added), and

therefore denied Andy Petefish standing solely because “he

failed to prove that he suffered any economic injuries.” /d.

The decision below held no such thing. The court of appeals

applied traditional standing analysis and considered all of

petitioners’ assorted claims of injury-in-fact and found all of

them wanting. App. 18-19. Petefish, like the other

petitioners, simply failed to establish “an injury of any kind,

economic or otherwise, sufficient to confer standing.” Valley

Forge, 454 U.S. at 486.

Petitioners repeat that Petefish submitted a “sworn affidavit,” Pet.

7, 13 n.8, but never explain why that mundane phenomenon is supposed

to have the magical power to fulfill their burden to establish standing. The

courts below found that the affidavit and all the rest of petitioners’

subnussions proved nothing and petitioners do not even offer an argument

as to why the courts might be mistaken. Instead, they contend that

Petefish's business must have suffered (even if they cannot prove it), since

June climbing is down by 85%. Pet. 13-14 n.8. But this hardly shows that

Petefish’s business is down. Petitioners concede that Petefish is the only

commercial climbing guide still working at the Tower in June. Pet. 24.

(All the other commercial climbing guides have chosen to observe the

voluntary June closure. /d.) Petitioners also concede that Petefish and his

clients account for “approximately one third of the climbing activity

during June.” /d. (quoting App. 70-71). Plainly, Petefish is still guiding

climbs in June and raking in all of the business available, which suggests

that his business has not suffered at all. In any event, the burden is

petitioners’, not ours, and they have failed to shoulder it.

12

~~

B. Petitioners’ Professed Fear of a Future Climbing

Prohibition Is Conjectural and Does Not

Constitute Injury-In-Fact.

In their complaint and subsequent affidavits, petitioners

allege that they can no longer climb the Tower in June

without fear that the government will respond by enacting an

outright climbing ban. Pls.” 2" Am. Compl. at §§ 2-6, 29;

App. 85-88. See also Pet. 21. Notwithstanding these

purported “fears,” a// of the individual petitioners have, by

their own admission, continued to climb the Tower in June,

App. 16-17, 18, so they have apparently gotten the better of

their fears. But not all petitioners are made of such stern

stuff. Two members of the Bear Lodge association assert that

their fears have caused them to stop climbing in June. See

Pet. 7, 21; App. 85-88. Consequently, petitioners argue, Bear

Lodge has standing to challenge the Climbing Plan on behalf

of these members. Pet. 3, 16, 21.

The source of these alleged ‘‘fears”’ is what petitioners

describe as “threats of the federal government to make its

June Climbing Ban mandatory if climbers continue[] to climb

in June.” Pet. 16.'* The only thing in the record that

petitioners can cite to for these phantom threats is the

provision of the Climbing Plan in which the Park Service

forecasts its options in the event the voluntary June closure is

unsuccessful. See page 5, supra.

In the first place, petitioners’ fears about these options are

speculation about what the Park Service might do, in the

future. Second, any such government action is dependent

upon the failure of tie voluntary closure, and, in fact, the

'* Note petitioners’ tacit admission that the voluntary closure they

persist in misrepresenting as a flat “ban” on June climbing is, in fact, not

“mandatory.”

DESPRE NET ne cte twat vn es Tal

13

voluntary closure has been successful. Third, making the

June closure “mandatory” is but one of six options listed.

Fourth, it is exceedingly unlikely, to say the least, that the

government will enact a mandatory ban on climbing in June

since the district court previously enjoined the enforcement

of one such mandatory ban (on commercially guided

climbing) and the Park Service acquiesced in that injunction

and revoked the ban. App. 45.

The “reasonableness” of a plaintiff's alleged fear “‘is

dependent upon the likelihood” of the occurrence he believes

is threatened. Los Angeles v. Lyons, 461 U'S. 95, 108 n.8

(1983). Under the circumstances of this case, petitioners

cannot “credibly allege” that they face a “realistic threat from

the policy.” Friends of Earth v. Laidlaw Envtl Servs., 1208S.

Ct. 693 (2000), 2000 U.S. LEXIS 501 at *33. The “subjective

apprehensions” asserted by two members of petitioner Bear

Lodge are not enough to support standing. /.vons, 461 U.S. at

108 n. 8.

If the Park Service should in the future decide to prohibit

rock climbing at the Tower, petitioners (assuming they could

meet all the standing requirements) would be able to

challenge the prohibition at that time. But any challenge to

the mere speculative possibility that the Park Service might

try to impose a flat ban is not ripe for review. Abbott Labs. v.

Gardner, 387 U.S. 136, 148-49 (1967). The federal courts are

“not empowered to decide . . . abstract propositions, or to

declare, for the government of future cases, principles or

tules of law.” Tyler v. Judges of Court of Registration, 179

U.S. 405, 409 (1900).

Therefore, the Tenth Circuit was correct to rule that

petitioners’ alleged “fear” of hypothetical adverse

government regulation in the future does not constitute an

“injury in fact”:

| Rees

14

{T]he possibility of a mandatory closure is a “remote

and speculative possibility,” and is just one of many

possibilities FCMP will consider if the present plan

proves unsuccessful. The Climbers’ fear of an

outright climbing ban in June does not satisfy the

constitutional requirement for an injury in fact, which

must be “actual and imminent not conjectural or

hypothetical.”

App. 19 (quoting Bennett v. Spear, 520 U.S. 154, 167

(1997)).

Apparently fearful that their subjective apprehensions of a

future ban will once again be deemed unreasonable and

incredible, petitioners now assert that the Park Service has

taken covert measures to “stop any and all climbing in June.”

Pet. 18. These measures include: “press releases and other

statements exerting pressure on visitors,” a “website that

warned against climbing,” and “even one-on-one

confrontations between armed and unarmed NPS employees

and prospective climbers.” Pet. 6-7, 18-19. Petitioners seem

particularly eager to convey the image of “uniformed officers

. armed with guns” stalking climbers and enforcing the

voluntary June closure at gunpoint. Pet. 22.'°

'* Petitioners even argue that the 85% decline in June climbing

proves that the Park Service is coercing compliance with the Climbing

Pian, since most climbers said they would not voluntarily stop climbing at

the Tower out of respect for Indian religious views when asked prior to

the Climbing Plan’s adoption. Pet. 5, 19. Not only is petitioners’ logic

specious, so are the data on which they rely. The 1992 survey they cite

found that 28 of the 42 climbers polled would not stop «hmbing

altogether at the Tower if they knew Indians considered it sacred. App.

89. This says nothing, however, about climbers’ willingness to refrain

from climbing for just one month a year. The vast majority of climbers

have demonstrated by their actions their willingness to accommodate

Indians who worship at the Tower in June.

eb t NaN ti epee wile Bute hanes

15

It would appear that petitioners have now passed beyond

mere subjective apprehensions into the realm of full-blown

paramilitary paranoia. More important,” petitioners never

raised these allegations in their complaint, affidavits, or

testimony below, and they never introduced any evidence to

substantiate them.'® These I1th-hour, appellate allegations

are wholly outside the record and therefore cannot form the

basis for petitioners’ standing.

The fact remains, uncontested in the actual record, that

the government is not using threats or intimidation to coerce

petitioners or anyone else to Stop climbing in June. Nor is the

government intimidating, coercing, or even encouraging

petitioners or anyone else to participate in Indian ceremonies

at the Tower or to adopt Indian beliefs about the Tower.

Visitors to the Tower are asked to forbear temporarily from

an activity that disrupts Indian ceremonies — much the same

way that visitors to Arlington Cemetery are admonished to be

quiet and respectful during religious burial ceremonies, see

pages 23-24, infra — but no one is asked to endorse as their

own the beliefs and practices involved in those ceremonies. '’

C. Petitioners’ “Fervent Objection” to the Voluntary

Closure Is Not an Injury-In-Fact.

Petitioners now argue that they have standing because

they are “directly affected’” by the voluntary June closure.

“due to the fact that they object to the closure of public lands

on the basis of religion in violation of the Establishment

is Perhaps this explains why Petitioners chose to omut their complaint

from their appendix in this Court.

” Petitioners’ argument to the contrary hopelessiy misconceives this

Court’s coercion jurisprudence. Petitioners, after all, are not school

children “forced by the State to pray in a manner [their] conscience[s]} will

not allow” at a “state-sponsored and State-directed religious exercise in a

public school.” Lee v Weisman, 505 U.S. 577, 593, 587 (1992),

16

Clause.” Pet. 15. They allege that they are injured by “the

direct effect on and ardent opposition by [them] to the federal

government’s refusal to maintain neutrality regarding visitor

use of Devils Tower.” Jd. at 14. This injury is manifested in

their “continuing and fervent objection to the failure of the

federal government to maintain neutrality at Devils Tower.”

Id.

Although petitioners “claim that the Constitution has

been violated, they claim nothing else.” Valley Forge, 454

U.S. at 485. They repeatedly assert, without elaboration, that

they have been “directly affected” by this violation, Pet. 9,

11, 14, 15, 16, as if chanting that mantra could substitute for

actually “‘identify[ing] any personal injury suffered by them

as a consequence of the alleged constitutional error.” Valley

Forge, 454 U.S. at 485. Petitioners’ argument is admirably

candid, if only because they repeat it so often: they claim

standing because they “object” to the Climbing Plan and their

objection is both “fervent” and “ardent.” Pet. 7, 9, 14, 15, 16.

Petitioners’ “objection” to the voluntary closure to June

climbing is nothing more than “an abstract injury in

nonobservance of the Constitution.” Valley Forge, 454 U.S.

482-83. This Court made clear in Valley Forge that such

abstract inquiries do not satisfy “the Art. III requirements of

standing,” id., and that the “intensity” of one’s interest and

the “fervor of his advocacy” are not “permissible substitute[s]

for the showing of injury.” Jd. at 486.

This case is indistinguishable from Valley Forge. The

mere fact that petitioners “‘live near, visit, recreate, and work

within Devils Tower,” Pet. 9, does not somehow transform

their philosophical objection to the voluntary closure into an

injury in fact. See Edmond vy. Robinson, 517 U.S. 1201, 1996

U.S. LEXIS 3019 at *3 (1996) (Rehnquist, C.J., joined by

Scalia and Thomas, JJ., dissenting) (noting that ‘[mJere

17

presence in the city, without further allegations as to injury,

quite clearly fails to meet the standing requirements laid

down in cases such as Valley Forge”). Nor do petitioners

gain standing from the fact that they objected to the voluntary

closure “consistently and repeatedly” during the

administrative approval process. Pet. 15. See Valley Forge,

454 U.S. at 487 n.24 (noting that while the Administrative

Procedure Act authorizes judicial review by persons

aggrieved by agency action, “(nJeither the [APA], nor any

other congressional enactment, can lower the threshold

requirements of standing under Art. IIT’).

Article III requires more than a mere philosophical

objection, however heart-felt, to perceived Establishment

Clause violations. This Court has never departed from this

requirement, Valley Forge, 454 U.S. at 488, 489 & n.26,'8

and no such departure is warranted here. Petitioners fail to

establish any such injury and therefore lack Standing to

challenge the Climbing Plan.

D. The Tenth Circuit’s Decision Does Not Create a

Split Among the Circuits.

Petitioners try to salvage their case by claiming that the

Tenth Circuit’s decision creates a split among the circuits

over the correct application of Valley Forge. They are wrong.

'* In Suhre v. Haywood County, 131 F.3d 1083, 1088 (4" Cir. 1997),

the Fourth Circuit incorrectly suggested that this Court had relaxed the

injury-in-fact requirement in Lynch v. Donnelly, 465 U.S. 668 (1984), and

Allegheny County v. A.C.L.U., 492 U.S. 573 (1989). The Fourth Circuit

noted that this Court apparently found no infirmity in the standing of

plaintiffs who alleged only direct contact with religious displays on

municipal property. The court read too much into this Court’s silence, for

the plaintiffs in Lynch and Allegheny County had already established

standing under the municipal taxpayer standing doctrine. See Donnelly v.

Lynch, 691 F.2d 1029, 1030 (1" Cir. 1982); A.C.L.U. v. Allegheny

County, 842 F.2d 655, 656 (3™ Cir. 1988).

18

First, some of the supposedly “conflicting” decisions

cited by petitioners predate Valley Forge and therefore hardly

evidence a conflict in the application of the standing

principles established in that case.'? Second, the court of

appeals below did not, contrary to _ petitioners’

misapprehension, hold that petitioners lacked standing

“because they had not altered their behavior as evidenced by

the fact that they continued to climb.” Pet. 11-12. Rather, the

court ruled that petitioners lacked standing because they

failed to establish any injury whatsoever resulting from the

Climbing Plan, be it economic, behavioral or otherwise.

This is entirely consistent with this Court’s decision in

Valley Forge and the post-Valley Forge circuit court

decisions cited by petitioners. In each of those cases, the

plaintiffs had alleged some actual injury resulting from the

government conduct under scrutiny. In several cases, the

plaintiffs alleged they were offended, filled with revulsion,

intimidated, or made to feel like second-class citizens by

government-sponsored religious displays.” In others, the

plaintiffs alleged that government-sponsored religious

displays or chapels impaired their use and enjoyment of

public property.*' In one case, the plaintiffs alleged that their

'* Anderson v. Salt Lake City Corp., 475 F.2d 29 (10 Cir. 1973);

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

*° Suhre, 131 F.3d at 1085 (plaintiff alleged he was “offended,”

“filled with revulsion,” and “distress[ed]” at sight of Ten Commandments

display in county courtroom); Foremaster v. St. George, 882 F.2d 1485,

1490-91 (10 Cir. 1989) (plaintiff alleged he was “greatly offend{ed]”

and “intimidate[d]” on daily basis by “visual impact” of official city seal

displaying image of religious temple); Saladin v. Midgeville, 812 F.2d

687, 689 (11" Cir. 1987) (plaintiffs alleged official city seal displaying

words “Liberty” and “Christianity” “denigrated their personal and

philosophical beliefs and made them feel like second class citizens”).

*" ACLU v. Rabun County, 698 F.2d 1098, 1103, 1108 (11" Cir.

1983) (plainuffs challenged 26° x 35° illuminated cross erected by

government in state park and “testified unequivocally at trial that they

La la

19

children were subjected to unwelcome school-supervised

religious meetings at a public school.”

The difference between this case and all those cited by

petitioners is that, in those cases, the complaining parties did

what Article III requires: they alleged, and then proved, in a

timely manner, injuries sufficient to confer standing. To be

sure, in this case petitioners’ counsel have, in drafting their

petition for certiorari, given themselves wide latitude to roam

beyond the record and to imagine new supposed injuries. But

petitioners themselves actually alleged nothing more than

economic injury to Andy Petefish (which they utterly failed

to demonstrate when pressed), and “fear” of a future climbing

prohibition (which was unreasonable and utterly speculative).

Unlike the cases on which they rely, petitioners here

never alleged that the voluntary closure to climbing offends

their beliefs. They never alleged that it impairs their use and

enjoyment of the Tower, aside from causing subjective,

conjectural fears that are not reasonably traceable to the plan

itself. They never alleged that they have been subjected by

the government to unwelcome religious expression or

religious exercises. Nor could they, for this case involves no

religious expression by the government itself and no

government-sponsored religious exercises. Rather, this case

would not use [the park] so long as the cross remained there:” one

plaintiff also testified he “suffer(s] from spiritual harm,” because cross is

located in “his special place of religious contemplation and retreat”);

Hawley v. Cleveland, 773 F.2d 736, 739 (6" Cir. 1985) (plaintiffs alleged

presence of sectarian chapel in public airport “impairs [their] use and

enjoyment of the public facility”).

* Bell v. Little Axe Indep. School. Dist.. 766 F.2d 1391, 1398 (10

Cir. 1985) (children subjected to religious meetings promoted by school,

involving teacher participation and supervision).

20

involves government accommodations of privately held

religious beliefs and private religious practices.”*

Petitioners claim only that they “object” to the voluntary

climbing plan because, to them, it represents “the failure of

the federal government to maintain neutrality with regard to

religious activity on federal land.” Pet. 7. This is nothing

more than a “generalized grievance[] about the conduct of the

government.” Flast v. Cohen, 392 U.S. 83, 106 (1968). Nota

single circuit court has held that such a generalized grievance

is sufficient to confer standing.

Il. THE CLIMBING PLAN IS PRECISELY THE KIND

OF CONSTITUTIONAL ACCOMMODATION OF

RELIGION APPROVED BY THIS COURT IN

LYNG V. NORTHWEST INDIAN CEMETERY

PROTECTIVE ASS’N (1988).

The Tenth Circuit did not address the constitutionality of

the Climbing Plan because it found the Art. III issues

dispositive of the appeal. App. 20. Bizarrely, petitioners

nevertheless argue that the decision below is somehow in

“direct and intolerable conflict” with the “clear principles”

set forth in Lyng v. Northwest Indian Cemetery Protective

Ass'n, 485 U.S. 439 (1988), Pet. 30, namely “that federal

land may not be closed to the public for the purposes of

religious activity.” Pet. 28.°* But Lyng did not establish such

* Quite simply, this case does not present the question of “whether

Valley Forge allowed standing to a plaintiff alleging direct injury by

being exposed to a state symbol that offends his beliefs,” Edmond, 517

U.S. 1201, 1996 U.S. LEXIS 3019 at *4 (Rehnquist, C.J., and Scalia and

Thomas, JJ., dissenting), since petitioners have alleged no such injury and

this case involves no state symbols.

** Petitioners also argue that the Tenth Circuit's decision in this case

conflicts with the prior decision of the Tenth Circuit in Badoni vy.

Higginson, 638 F.2d 172 (10" Cir. 1980), cert. denied 452 U.S. 954

(1981). Pet. 30. Even if that were true, such intra-circuit conflict is no

21

a principle; indeed, Lyng endorsed government efforts to

accommodate the religious practices of Indian tribes on

federal lands. The voluntary closure to climbing is entirely

consistent with Lyng and the related decisions of this Court.

A. The Constitution Permits Accommodations of

Religious Practices on Government Lands.

This Court “has long recognized that the government may

(and sometimes must) accommodate religious practices and

that it may do so without violating the Establishment

Clause.” Hobbie v. Unemployment Appeals Comm'n, 480

U.S. 136, 144-45 (1987). Petitioners fatally misinterpret Lyng

as forbidding accommodation of Indian religious practices on

federal land. Pet. 28-29. Lyng was decided under the Free

Exercise Clause of the First Amendment, not the

Establishment Clause. Lyng held that the Free Exercise

Clause did not require the National Forest Service to halt

development of a road through areas of a national forest

sacred to some American Indians. 485 U.S. at 453. However,

a holding that the government is not compelled to take certain

steps by the Free Exercise Clause does not mean that it is

forbidden to take those same steps by the Establishment

Clause. “The limits of permissible state accommodation to

religion are by no means coextensive with the

noninterference mandated by the Free Exercise Clause.” Walz

v. Tax Comm'n, 397 U.S. 664, 673 (1970). Accord

Employment Div. v. Smith, 494 U.S. 872, 890 (1990); Texas

Monthly v. Bullock, 489 U.S. 1, 18 n.8 (1989).

In Lyng, the Court was careful to emphasize that “(t]he

Government’s rights to the use of its own land. . . need not

basis for review by this Court. In any event, no conflict exists. The Tenth

Circuit certainly did not perceive one, for it denied petitioner's petition

for rehearing en banc. App. 66-67.

22

and should not discourage it from accommodating religious

practices . . . engaged in by . . . Indian[s]” on federal lands.

485 U.S. at 454. The Court held that the job of reconciling

competing demands for the use of public lands, “many of

them rooted in sincere religious belief,” belongs to the

“legislatures and other institutions” of the political branches

of the government. /d. at 452. Accord Smith, 494 U.S. at 890.

The Lyng Court commended the National Forest

Service’s “solicitude” toward Indian religious practices,

noting that the National Forest Service had planned a number

of “ameliorative measures,” to reduce the burdens of the

proposed road on Indian religious practices. 485 U.S. at 454.

The route chosen for the road was ““‘the farthest removed

from the contemporary spiritual sites.”” Jd. “[T]en specific

steps were planned to reduce the visual impact of the road”

on the areas that were sacred to the Indians. /d. And the

Forest Service proposed several measures to ensure that “[n]o

sites where specific rituals take place [would be] disturbed.”

Id. These measures included: banning the recreational use of

off-road vehicles in and around sacred areas; banning

commercial timber harvesting in and around sacred areas;

building the road on steep slopes without turn-outs or parking

areas so that visitors could not stop and enter the sacred

areas; and providing no signs or interpretive information to

draw disruptive public attention to the spiritual or cultural

values of the area. Jd. at 454-55; Northwest Indian Cemetery

Protective Ass'n v. Lyng, 795 F.2d 688, 702-03 & n.5 (9th

Cir. 1986) (Beezer, J., dissenting in part); Northwest Indian

Cemetery Protective Ass'n v. Peterson, 565 F.Supp. 586, 592

(N.D. Cal. 1983).

The Court stressed that the government’s “solicitude

accords with ‘the policy of the United States to protect and

preserve for American Indians their inherent right of freedom

23

to believe, express, and exercise the traditional religions of

the American Indian . . . including but not limited to access to

sites, use and possession of sacred objects, and the freedom

to worship through ceremonials and traditional rites.’

American Indian Religious Freedom Act (“AIRFA”), 42

U.S.C. § 1996.” Lyng, 485 U.S. at.454-55,75

The Park Service has displayed similarly commendable,

and equally constitutional, solicitude for Indian religious

practices at Devils Tower National Monument. The Climbing

Plan balances competing user interests and accommodates

Indian religious ceremonies during June by removing the

obstacles occasioned by rock climbing. The Plan does not, by

any stretch of the imagination, constitute government

sponsorship or endorsement of Indian religious ceremonies.

Nor does it coerce non-adherents to participate in those

ceremonies. This accommodation merely “permit[s] [Indian]

religious exercise to exist” at the Tower “without sponsorship

and without interference.” Corporation of Presiding Bishop

v. Amos, 483 U.S. 327, 334 (1987). “There is ample room

under the Establishment Clause for [such] ‘benevolent

neutrality.”” Jd. (quoting Walz, 397 U.S. at 699).

The Climbing Plan is in keeping with the federal

government’s many accommodations of religious ceremonies

on federally owned land. At Arlington National Cemetery,

the government accommodates the free exercise of religion at

private memorial services by providing that such services

*S After Lyng was decided, Congress fulfilled its “institutional role,”

485 U.S. at 456, by de-funding the road at issue in the case, thereby

further accommodating traditional Indian religious practices on forest

lands. Department of the Interior and Related Agencies Appropriations

Bill, 1989, H.R. 713, 100" Cong., 2d Sess. (1988) (“prohibit[ing] the use

of funds for the construction of the Gasquet-Orleans (G-O) road in

California, pending further review of the issue of Indian religious rights

that would be significantly affected by the road construction”).

\ 24

“may be closed to members of the general public.” 32 C.F.R.

§ 553.22(c)(3). Some forms of conduct are prohibited at all

times because they are inconsistent with the sacred, spiritual

purposes to which the Cemetery is devoted: these include

recreational activity, commercial activity, and disruptive and

disorderly conduct. 32 C.F.R. § 553.22(f),(g). Visitors at the

National Cemetery encounter signs requesting them to

conduct themselves with dignity and respect on the

cemetery’s “hallowed grounds.” CRST App. 17, 18. The

official brochure reminds visitors that “the cemetery is a

shrine, not a place for recreation, picnics, or child’s play.

Thank you for respecting the feelings of those attending a

burial.” Id. at 22 (emphasis in original).

At many national parks, monuments, and historic sites,

the Park Service owns, leases, or manages religious

properties and “exercises its authority to exclude conflicting

uses when necessary” to accommodate religious practices at

those properties. Defs.’ Br. in D. Ct. in Opp’n to Prelim. Inj.

11 n.6 (citing 36 C.F.R. § 2.51). See also 36 C.F.R. § 1.5. For

example, at the Martin Luther King, Junior, National Historic

Site in Georgia, the Park Service has a long-term leasehold

interest in Ebenezer Baptist Church. CRST App. 111-17. The

Park Service operates the church as part of the Historic Site,

but accommodates the current congregation’s need to use the

church for private religious ceremonies. Id.”°

26 Similarly, at the San Antonio Missions National Historic Park in

Texas, a park that contains many active Catholic missions, the Park

Service’s official brochure states: “Please Be Considerate. The historic

structures are fragile resources. Help us preserve them for future

generations. Remember also that these are places of worship. Parish

priests and parishioners deserve your respect; please do not disrupt their

services.” CRST App. 46. The record in this case is filled with such

examples. See, e.g., id. at 9-148, 192, 199-205, 206-207.

25

Furthermore, the Park Service annually issues hundreds

of permits allowing religious organizations to conduct

religious services in national parks throughout the country.

See, e.g., O'Hair v. Andrus, 613 F.2d 931, 934 (D.C. Cir.

1979) (Park Service “issues about 100 permits annually for

religious activities on national park land within the District of

: Columbia” alone). Through this permitting process, the Park

‘ Service currently allows one organization, “A Christian

Ministry in the National Parks,” to conduct regularly-

scheduled religious services in some 65 national parks,

including Yellowstone and Yosemite. CRST App. 136, 118,

129-30. During these religious services, the Park Service may

prohibit incompatible recreational uses of park facilities or

lands. See Defs.’ Br. in D. Ct. in Opp’n to Prelim. Inj. at 8

n.5.

SIN react AOE Tina Use are

When challenged, the government’s accommodations of

religious practices on public lands have routinely been

upheld. For example, in O’Hair v. Andrus, the D.C. Circuit

rejected an Establishment Clause challenge to the Park

Service’s grant of a permit authorizing Pope John Paul II to

conduct a mass for 500,000 people on the National Mall. 613

F.2d at 932-33. The Park Service erected “fences and

barriers” around the Mall and allocated $178,450 for extra

police, construction costs, water and electrical services, and

garbage removal. Jd. The court ruled that “some use of public

property for a religious purpose may occur without

constituting an ‘establishment’ of religion.” Jd. at 204.7’

7 it id ae sg EAE

*” The courts have also upheld designations of government property

for religious prayer and worship services in: legislative buildings, Van

Zandt v. Thompson, 839 F.2d 1215, 1216 "ea Cir. 1988); see also Lynch,

465 U.S. at 676, airports, Hawley, 24 F.3d at 815, 818; Brashich v. Port

Authority, 791 F.2d 224, 226 (2d Cir. 1980), schools, Shumway v. Albany

County School Dist., 826 F.Supp. 1320 (D. Wyo. 1993), hospitals, Carter

v. Broadlawns Medical Center, 857 F.2d 448, 457 (8" Cir. 1988), cert.

26

The Climbing Plan is a constitutional accommodation of

Indian religious practices at the Tower. It is consistent with

Lyng and with the federal government’s well-established

policy of accommodating religious practices on public lands.

B. The Climbing Plan Is Consistent with this Court’s

Establishment Clause Jurisprudence.

Petitioners argue that this case raises important, far-

reaching Establishment Clause problems. Pet. 17-18, 19-20,

22, 23-26, 28-30. They are wrong. The Climbing Plan easily

satisfies the Lemon test, Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971), and the endorsement test, see, e.g., Allegheny,

492 USS. at 592-94.

The Plan satisfies the three-part Lemon test. First, it is

motivated by secular, not religious, purposes:

e It strives to preserve all of the Tower’s natural and

cultural resources and to balance the competing demands

of different user groups. This is a secular purpose. Larkin

v. Grendel's Den, 459 U.S. 116, 121 (1982).

e It strives to accommodate Indian religious practices at the

Tower by reducing burdens imposed on those practices by

the government’s ownership and management of the

Tower. This Court has long held that “it is a permissible

legislative purpose to alleviate significant governmental

denied, 489 U.S. 1096 (1989), military facilities, Katcoff v. Marsh, 755

F.2d 223 (2d Cir. 1985); see also School Dist. of Abington Township v.

Schempp, 374 U.S. 203, 226 n.10 (1963), and prisons, see, e.g., Cruz v.

Beto, 405 U.S. 319, 323-24 (1972) (Rehnquist, J., dissenting); Schempp,

374 US. at 297-98 (Brennan, J., concurring). The courts have also upheld

designations of public property for religious displays. See, e.g., Capitol

Square Review Bd. v. Pinette, 515 U.S. 753, 763, 770 (1995); Allegheny,

492 U.S. at 620; Lynch, 465 U.S. at 685.

27

interference with the ability of religious organizations to

define and carry out their religious missions.” Amos, 483

U.S. at 335. Accord Board of Educ. of Kiryas Joel y.

Grumet, 512 U.S. 687, 705-6 (1994); Allegheny County,

492 U.S. at 613 n.59; Grendel’s Den, 459 U.S. at 123-24.

¢ It strives to fulfill the government’s special obligation “to

protect Indian sacred sites and traditional forms of

worship.” App. 9. See also id. at 9-10 & n. 6 (citing

numerous federal laws protecting Indian religions,

including AIRFA, 42 U.S.C. § 1996, and Exec. Order

13007, 61 Fed.Reg. 26771 (1996)). This is a secular

purpose. See, e.g., Rupert v. Director, U.S. Fish &

Wildlife Service, 957 F.2d 32, 35 (1° Cir. 1992)

(upholding special law allowing Indians to hunt and

possess eagle feathers for religious purposes on grounds

that law serves secular purpose of fulfilling government’s

duty to “protect[] Native American religion and culture’’);

Peyote Way Church of God vy. Thornburgh, 922 F.2d

1210, 1217 (5" Cir. 1991) (upholding exemption from

federal criminal narcotics laws allowing Indian churches

to use peyote in religious ceremonies).

Second, the primary effect of the voluntary June closure

is the removal of government-imposed burdens on Indian

religious practices at the Tower. This is, as discussed above,

a secular effect. See Amos, 483 US. at 335-37; Hobbie, 480

U.S. at 144-45; Kiryas Joel, 512 U.S. at 705-6.

The Climbing Plan does not advance Indian religions.

The Park Service provides no financial assistance or

sponsorship to Indian religious practitioners at the Tower, the

government is not involved in their ceremonies, nor does the

government require, or even encourage, anyone to join in the

ceremonies or to adopt Indian religious beliefs. Petitioners

may object to the Indian religious practices at the Tower, but

28

as long as they are not required to participate in any act or

adopt any belief that violates their religious consciences, they

have no constitutional objection on the grounds of coercion.

The fact that the Climbing Plan may encourage tolerance and

respect for Indian religious practices does not render it

unconstitutional. See, e.g., Kiryas Joel, 512 U.S. at 711

(Stevens, J., joined by Blackmun and Ginsburg, JJ.,

concurring) (teaching people “to be tolerant and respectful”

of minority religions “raise[s] no constitutional concerns;”

rather it “further[s] the strong public interest in promoting

diversity and understanding”’).

Third, the Climbing Plan does not entangle the

government with Indian religion affairs. It contemplates no

government management, monitoring, or evaluation of Indian

religious ceremonies, and the Park Service certainly has not

ceded its regulatory authority over the Tower to religious

organizations. Indeed, the Climbing Plan serves only to

remove burdens imposed by the Park Service itself in

allowing rock climbing at the Tower in the first place.

The Climbing Plan also satisfies the endorsement test. A

reasonable observer, aware of the history and context of

Indian religious practices at the Tower and the interference

therewith occasioned by rock climbing, see App. 5-12, would

not view the Climbing Plan as “communicating a message of

government endorsement . . . of [Indian] religion[s].” Lynch,

465 U.S. at 694 (O’Connor, J., concurring). See also Capitol

Square Review Bd. v. Pinette, 515 U.S. 753, 772-73, 779-81

(1995) (O’Connor, J., joined by Souter and Breyer, JJ.,

concurring). Rather, a reasonable observer would view the

program as a limited measure facilitating the free exercise of

religion by Indians. Government actions, like the Climbing

Plan, that accommodate religion by lifting ‘“‘an identifiable

burden on [religious] exercise” do not communicate a

29

message of endorsement. Amos, 483 U.S. at 348 (O’Connor,

J., concurring). Accord Lee v. Weisman, 505 U.S. 577, 628-

29 (1992) (Souter, J., joined by Stevens and O’Connor, JJ.,

concurring) (“in freeing the Native American Church from

federal laws forbidding peyote use, . . . the government

conveys no endorsement of peyote rituals, the Church, or

religion as such; it simply respects the centrality of peyote to

lives of certain Americans”).

When the government accommodates religious practices,

as it has done in this case, “it follows the best of our

traditions. For then it respects the religious nature of our

people and accommodates the public service to their spiritual

needs.” Walz, 397 U.S. at 672.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

Steven C. Emery* Steven J. Gunn

Thomas J. Van Norman Indian Law Resource Center

Cheyenne River Sioux Tribe 601 E Street, SE

P.O. Box 590 Washington, D.C. 20003

Eagle Butte, SD 57625 (202) 547-2800

(605) 964-6687

*Counsel of Record Brian S. Koukoutchos

28 Eagle Trace

Mandeville, LA 70471

(504) 626-4409

Dated: February 22, 2000