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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0601%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1037

## Text

Supreme Court, US.

| tL" |
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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iv
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

CREO HEHEHE HEHEHE EEE TEETH E HOHE HEHEHE EEE

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.

ENE BRIAN cs scssctaicindeinessutazdeasss 22-23, 27
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

SHASRORSSOSACHES O9E0600546 E860 006460066 666660.6004600600604068060406

Vill

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

to

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

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l
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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2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0601%3A3. Public record. Not legal advice.