Northwest Indian Cemetery Protective Ass'n v. Peterson

795 F.2d 688, 24 ERC 1775

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 22, 1986
• Docket: Civ. A. No. 83-2225
• Status: Published

Opinions

BEEZER, Circuit Judge,

dissenting in part:

I concur in Parts II, III, and IV of Judge Canby's majority opinion. I also concur in Part V to the extent that it is based on the discussion in Parts II, III, and IV. Because I conclude that the plaintiffs have not established a first amendment violation, I cannot concur in Part I. To the extent that the majority upholds the permanent injunction against timber harvesting and road construction in the “high country,” I respectfully dissent.

I

Background

This action involves the proposed development of the Blue Creek Unit of Six Rivers National Forest. The Blue Creek Unit consists of 76,500 acres of mountainous land in the northwestern corner of California. The northeastern comer of the Blue Creek Unit, which is referred to as “the high country,” is considered sacred by several Indian tribes. The district court described the Indian plaintiffs’ use of the high country as follows:

Ceremonial use of the high country by the Yurok, Karok, and Tolowa tribes dates back to the early nineteenth century and probably much earlier. Members of these tribes currently make regular use of the high country for several religious purposes. Individuals hike into the high country and use “prayer seats” located at Doctor Rock, Chimney Rock, and Peak 8 to seek religious guidance or personal “power” through “engaging in emotional [and] spiritual exchange with the creator.” Such exchange is made possible by the solitude, quietness, and pristine environment found in the high country. Certain key participants in tribal religious ceremonies such as the White Deerskin and Jump Dances must visit the high country prior to the ceremony to purify themselves and to make “preparatory medicine.” The religious power these individuals acquire in the high country lends meaning to these tribal ceremonies, thereby enhancing the spiritual welfare of the entire tribal community. Medicine women in the tribes travel to the high country to pray, to obtain spiritual power, and to gather medicines. They then return to the tribe to administer to the sick the healing power gained in the high country through ceremonies such as the Brush and Kick Dances.

565 F.Supp. 586, 591-92 (N.D.Cal.1983) (citations omitted).

In the early 1970s, the Forest Service began studying various land use management plans for the Blue Creek Unit. In 1981, the Forest Service issued the Blue Creek Unit Implementation Plan (“the Management Plan”), which proposed to authorize harvesting of 733 million board feet of timber over an eighty year period.

Since the 1960s, the Forest Service has been upgrading a seventy-five mile road between Gasquet, California and Orleans, California (“the G-0 road”). Approximately six miles of the G-0 road lies within the Blue Creek Unit. In 1982, the Forest Service issued an environmental impact statement for the proposed construction of the final six miles, which is referred to as the “Chimney Rock Section.”

The plaintiffs brought this action to enjoin the Forest Service from beginning those projects. On May 24, 1983, the district court entered a permanent injunction against the Forest Service. The relevant portions of the injunction are as follows:

IT IS HEREBY ORDERED that defendants are permanently enjoined from constructing the Chimney Rock Section of the G-0 road and/or any alternative route for that Section which would traverse the high country____

IT IS FURTHER HEREBY ORDERED that defendants are permanently enjoined from engaging in commercial timber harvesting and/or from constructing any logging roads in the high country ... pursuant to the 1981 Implementation Plan ... or any other land management plan.

565 F.Supp. at 606.

II

Applicable Law

The Indian plaintiffs are attempting to use the free exercise clause to bar the development of public lands. Such attempts have raised difficult problems for first amendment theory. See Stambor, Manifest Destiny and American Indian Religious Freedom: Sequoyah, Badoni, and the Drowned Gods, 10 Am.Ind.L.Rev. 59 (1982); Note, Indian Religious Freedom and Governmental Development of Public Lands, 94 Yale L.J. 1447 (1985) [hereinafter cited as Note, Indian Religious Freedom]. These problems have been resolved through the adoption of a two-step analysis. First, the plaintiffs must show that the area at issue is central and indispensable to their religious practices and that the threatened activity would seriously interfere with or impair those practices. See Wilson v. Block, 708 F.2d 735, 742-44 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). Second, if the plaintiffs meet their burden, the government must show an overriding government interest that cannot be served through less restrictive alternatives. See id. at 740; Badoni v. Higginson, 638 F.2d 172, 176-77 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981).¹

Four circuits have considered claims similar to those raised by the Indian plaintiffs in this case. In all four cases, the claims were rejected. In Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 357, 66 L.Ed.2d 216 (1980), the Cherokee tribe sought to enjoin the construction of the Tellico Dam in Tennessee. The tribe asserted that the completion of the project would flood their “sacred homeland,” destroying sacred sites, medicine gathering sites, holy places, and cemeteries and disturbing “the sacred balance of the land.” Id. at 1160. The Sixth Circuit rejected the tribe’s claims, holding that the tribe had failed to establish that their use of the lands was central to the practice of their religion. Id. at 1164-65. The court noted that it was “damage to tribal and family folklore and traditions, more than particular religious observances, which appears to be at stake.” Id. at 1164.

The Tenth Circuit addressed a similar issue in Badoni v. Higginson, 638 F.2d 172 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 965 (1981). In Badoni, the tribe challenged the construction of the Glen Canyon Dam in Utah and the management of Rainbow Bridge National Monument by the National Park Service. The dam created Lake Powell, which the tribe claimed had drowned some of their gods and cut off tribal access to a sacred prayer spot and spring. Id. at 176. The lake also provided convenient access to the Monument, thus increasing the number of tourists. Id. at 175. The tribe asserted “that tourists visiting the Monument desecrate the area by noisy conduct, littering and defacement of the Bridge and that the presence of tourists prevents [the tribe] from holding ceremonies near the Bridge.” Id. at 177. The Tenth Circuit rejected the tribes’ claims. Initially, the court held that the flooding of the sacred areas was justified by an overriding government interest. Id. Emphasizing establishment clause concerns, the court also refused to order the Park Service to police the actions of tourists visiting the Monument. The court stated:

We find no basis in the law for ordering the government to exclude the public from public areas during the exercise of First Amendment rights.

... Although Congress has authorized the Park Service to regulate the conduct of tourists in order to promote and preserve the Monument, we do not believe plaintiffs have a constitutional right to have tourists visiting the Bridge act “in a respectful and appreciative manner.”

... Were it otherwise, the Monument would become a government-managed religious shrine.

Id. at 179 (citation omitted).

The Eighth Circuit addressed a similar claim in Crow v. Gullet, 706 F.2d 856 (8th Cir.1983), aff'g 541 F.Supp. 785 (D.S.D.1982), cert. denied, 464 U.S. 977, 104 S.Ct. 413, 78 L.Ed.2d 351 (1983). In Crow, two tribes challenged South Dakota’s management of a state park containing Bear Butte, an important religious site for the tribes. The tribes argued that (1) the development of the park had increased the number of tourists in the park, reducing the Butte’s spiritual value and impairing religious ceremonies; (2) the development of the park had restricted tribal access to the Butte; (3) their religious practices were impermissibly burdened by registration and permit requirements that restricted entry into the park; and (4) the state had failed to control the tourists, who disrupted the tribe’s religious practices. Id. at 858. Citing Badoni and Sequoyah, the district court rejected each argument. 541 F.Supp. at 791-93. The Eighth Circuit adopted the district court’s opinion. 706 F.2d at 858-59.

The District of Columbia Circuit considered this issue in Wilson v. Block, 708 F.2d 735 (D.C.Cir.), cert. denied, 464 U.S. 956, 104 S.Ct. 371, 78 L.Ed.2d 330 (1983). In Wilson, the Navajo and Hopi tribes sought to enjoin development of ski resorts in the San Francisco Peaks in Arizona. The tribes asserted that development of the Peaks “would be a profane act, and an affront to the deities, and that, in consequence, the Peaks would lose their healing power and otherwise cease to benefit the tribes.” Id. at 740. The tribe also asserted that development would impair their ability to pray, to conduct ceremonies, and to gather sacred objects such as fir boughs. Id. The District of Columbia Circuit rejected the tribe’s claims. The court noted that the development of the Peaks would not cause the tribes to be denied access to any sacred areas. Id. at 744. The court also concluded that development would not prevent the tribes from engaging in any religious practices. Id. at 744.

The district court was aware of the decisions in those circuits. Nevertheless, the district court found that the Forest Service had violated the first amendment. In doing so, the district court became the first federal court to enjoin the development of public lands on free exercise grounds.²

III

The Construction of the G-0 Road

The district court found that the construction of the G-0 Road violated the free exercise clause because it “would seriously damage the salient visual, aural, and environment qualities of the high country.” 565 F.Supp. at 594-95. The district court did not make specific findings regarding the effects of the construction of the road. Instead, the district court relied exclusively on the conclusions of a study prepared by Dr. Dorothea Theodoratus at the request of the Forest Service. Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979) [hereinafter cited as Theodoratus Report ]. The study concluded that “intrusions on the sanctity of the Blue Creek high country are ... potentially destructive of the very core of Northwest [Indian] religious beliefs and practices.” Id. at 420. Although the district court believed that the Theodoratus Report supported the issuance of an injunction, a careful review of the record reveals that the injunction was unsupported,

A. The Theodoratus Report

The Theodoratus Report did not conclude that the mere existence of the G-0 Road would impair the Indian plaintiffs’ religious practices.³ Instead, the report focused on five side effects. On careful examination, it is apparent that the side effects did not justify the issuance of an injunction against the construction of the road.

1. Road Building Activities Off the Right-of-Way

The Theodoratus Report concluded that the construction of the G-0 Road threatened damage to archeological sites located off the right-of-way. Id. at 368-69. The report did not suggest that the destruction of any or all of those sites would impair the practice of the Indian plaintiffs’ religion. See Sequoyah, 620 F.2d at 1164-65. Most of the sites appear to be exclusively of archeological, rather than religious, significance. See, e.g., Theodoratus Report at 358 (noting that “GO-24,” one of the sites that could be affected, had not been used for rituals since before 1900). Moreover, the Theodoratus Report was prepared prior to the selection of the present proposed route. One of the reasons for the selection of that route was that there would be “no ground disturbing activities on any significant archaeological properties.” Forest Service, Cultural Resources Preliminary Case Report Supplement 31 (1981) [hereinafter cited as Case Report ].

In any event, the Theodoratus Report assumes that the archeological sites would be damaged by negligent construction techniques or vandalism by construction workers. At most, such a threat of damage would justify an order requiring the Forest Service to safeguard against those dangers. The Theodoratus Report did not suggest that damage to the archeological sites could not be prevented by appropriate precautions.

2. Logging

The Theodoratus Report correctly concluded that completion of the G-0 Road would open up areas for commercial logging. Theodoratus Report at 369-70. To the extent that logging activities threatened the Indian plaintiffs’ religious practices, however, the appropriate remedy was an injunction against logging. In fact, the district court entered such an injunction.⁴ If the injunction against logging is upheld, the injunction against construction of the G-0 Road is obviously not necessary to prevent logging. If the injunction against logging is overturned, on the other hand, surely an injunction aimed at stopping logging indirectly cannot be upheld on that ground. Accordingly, logging activities are irrelevant to the present analysis.

3. Mining

The Theodoratus Report also concluded that the completion of the G-0 Road would encourage mining activities in the high country. Id. at 370-71. The appropriate remedy, once again, was an injunction against mining. The injunction against the completion of the G-0 Road cannot be upheld on this ground.

4. Forest Service Activities

The Theodoratus Report concluded that the completion of the G-0 Road would increase the volume of Forest Service activities in the high country. Id. at 371. The report also concluded, however, that “these activities are unlikely to have a serious effect on archaeological resources.” Id.

5. Recreational Activities

The Theodoratus Report concluded that completion of the G-0 Road would increase the number of recreational visitors to the high country. Id. at 371-72. In essence, the report concludes that campers and hikers would invade the Indian plaintiffs’ seclusion and violate the pristine nature of the area. In light of Badoni and Crow, this threat is not of constitutional magnitude. The Indian plaintiffs are not entitled to exclusive use of the high country.⁵

6. Summary

The Theodoratus Report’s conclusion that completion of the G-0 Road threatened the Indian plaintiffs’ free exercise rights was plausible. The district court erred, however, by assuming that the report’s conclusion supported the issuance of an injunction. Three of the five potential adverse effects cited in the report — logging, mining, and recreational use — cannot support issuance of an injunction against road construction. The remaining two potential adverse effects — road construction activities off the right-of-way and Forest Service activities — do not pose a serious threat to the practice of the Indian plaintiffs’ religion. Accordingly, the district court’s reliance on the Theodoratus Report was misplaced.

B. Other Effects

In addition to the potential effects discussed in the Theodoratus Report, the Indian plaintiffs claim that the completion of the G-0 Road would cause two additional adverse effects. First, the Indian plaintiffs claim that visibility of the road from religious sites would impair their religious practices. The district court did not make findings regarding this claim. Nevertheless, it is apparent that the claim lacks merit. It is virtually inconceivable that the visibility of the G-0 Road could seriously impair the practice of the Indian plaintiffs’ religion. Moreover, the Forest Service proposed ten measures to mitigate the visual impact of the road:

1. The clearing limits from the top of the cuts to the bottom of fills will be kept to an absolute minimum.

2. The road would be constructed at the minimum practical width for two lanes; 24 feet travel-way on a 32 feet construction width.

3. Earthwork will be kept to a minimum by varying the grade and alignment of the road to fit the natural terrain.

4. Vegetation will be planted in cut and fills.

5. In areas of flat terrain (20% or less), clearing edges will be feathered to reduce contrasts and to give a natural appearance for vegetation alongside the road.

6. There will be no retaining walls.

7. Blue Creek will be crossed by in inconspicuous structural-plate metal arch bridge.

8. The asphalted road surface will have a black color which will blend in color with the surroundings.

9. Paving will eliminate dust-clouds associated with vehicle traffic.

10. Signing will be kept to the minimum needed for safety.

Case Report at 35.

Second, the Indian plaintiffs asserted that “increased aural disturbances from construction and use of the road would ... impair the success of religious and medicinal quests into the high country.” 565 F.Supp. at 592. In Wilson, the District of Columbia Circuit rejected a similar argument. 708 F.2d at 744-45. Like the plaintiffs in Wilson, the Indian plaintiffs in this case have failed to prove that the completion of the road would prevent them from practicing their religion. While it is possible that noise from the road would impair religious and medicinal quests in the area adjoining the road, it is apparent that the high country is a large area. The Indian plaintiffs have not established that their quests can take place only in the area near the road.

C. Conclusion

The district court found that the completion of the G-0 Road would seriously impair the practice of the Indian plaintiffs’ religion. The record does not support that finding. Accordingly, I would reverse the order granting a permanent injunction against completion of the G-0 Road.

ÍV

The Management Plan

A. The California Wilderness Act of 1984

On September 28, 1984, President Reagan signed the California Wilderness Act, Pub.L. No. 98-425, 98 Stat. 1619 (1984). The Act designated much of Six Rivers National Forest as wilderness areas. Id. § 101(a)(19), (30), (34), (36), 98 Stat. 1621-24 (codified at 16 U.S.C. § 1132 note). Of the land covered by the first amendment injunction, only small parcels are not included in the wilderness areas. One such parcel is a narrow strip of land set aside so that the completion of the G-0 Road would not be precluded.

16 U.S.C. § 1133(c) prohibits commercial activities in wilderness areas. The first amendment issues raised by the proposed development of the newly designated wilderness areas are therefore moot. I would vacate the order granting the injunction against development to the extent that it covers those areas. It is not clear whether the district court would have issued an injunction based upon the development of the remaining small parcels. Accordingly, I would remand to allow the district court to reevaluate its injunction in light of the Act.

B. First Amendment Issues Upon Remand

Upon remand to reconsider its injunction against timber harvesting in the high country, I would ask the district court to reevaluate both the threat of limited development to the Indians’ right to free exercise of religion, and the strength of the government’s interest in developing the high country.

In light of the Wilderness Act, a serious question is raised as to whether timber harvesting on those few small parcels of land still available for development could pose any serious threat to the Indian plaintiffs’ religious practices involving the larger territory. It may now be more feasible to accommodate the religious concerns of the Indians without foreclosing the limited logging activities that would still be possible in the wake of the wilderness designation.

Even if the district court were to conclude upon remand that any development would infringe the Indians’ exercise of religion, I would instruct the court also to reexamine whether the government can demonstrate a compelling interest in developing those areas. I am not convinced that the district court has thus far given proper respect to the government’s ownership rights in public lands.

In entering its order enjoining timber harvesting in the high country, the district court offered the following analysis regarding the government’s interest:

Harvesting of timber from the Blue Creek Unit pursuant to the Management Plan would not serve any compelling public interest. That timber is a small fraction of the timber resources found in the entire Six Rivers National Forest. Its harvesting would not significantly affect timber supplies. Moreover, the regional timber industry will not suffer greatly without access to timber in the Unit.

565 F.Supp. at 596 (emphasis added).

The issue is not whether the public has a compelling interest, but whether the government has a compelling interest. The government’s interest in putting public lands to productive use must be weighed carefully in the balance. While the government has many obligations that are not shared by private landowners, the government retains a substantial, perhaps even compelling, interest in using its land to achieve economic benefits.

Although it may be appropriate in some limited circumstances to order the preservation of discrete parcels of land to accommodate Indian religious exercises, the courts should guard against the creation of private religious preserves covering vast expanses of our public lands. To do otherwise is to risk violation by judicial order of the establishment clause.

These interests and concerns cannot properly be evaluated upon the present record before this court. We should await reconsideration by the district court of these matters in light of the changed circumstances created by the California Wilderness Act. Accordingly, the district court’s injunction against timber harvesting cannot be upheld.

V

Conclusion

The district court’s order was the first decision restricting the government’s ability to develop public lands on the basis of the free exercise clause. I would follow the Sixth, Eighth, Tenth, and District of Columbia Circuits and overturn the order granting injunctive relief to the extent that it rests on the first amendment.

1 . This case presents a mixed question of law and fact. The district court’s findings of historical fact are reviewed under the clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200-01 (9th Cir.) (en banc), cert. denied, — U.S. —, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) ; see Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Fed.R.Civ.P. 52(a). The district court’s selection of legal principles is reviewed de novo. McConney, 728 F.2d at 1200-01. In choosing a standard of review for the district court’s application of law to facts, we refer "to the sound principles which underlie the settled rules of appellate review.” Id. at 1202. If the inquiry is essentially factual, the clearly erroneous standard is applied. Id. If, on the other hand, we must "consider legal concepts in the mix of fact and law and ... exercise judgment about the values that animate legal principles,” de novo, review is applied. Id. In this case, de novo review is appropriate. See Fraser v. Bethel School District, 755 F.2d 1356, 1359 n. 2 (9th Cir.1985), rev’d on other grounds, — U.S. —, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986).

2 . Because Indian religious concepts often differ substantially from Judeo-Christian concepts, some courts have been hesitant to recognize the first amendment rights of Indians in specific sites. See Note, Indian Religious Freedom, supra, at 1448-57. It is now well settled, however, that Indians have standing to raise first amendment objections to the development of public lands. E.g., Badoni, 638 F.2d at 176. The district court properly concluded that the Indian plaintiffs have a first amendment interest in the high country.

It does not follow, however, that all of the Indian plaintiffs’ uses of the high country are entitled to first amendment protection. To qualify for first amendment protection, the plaintiffs’ use of the high country must be "religious." See Clark, Guidelines for Free Exercise Clause, 83 Harv.L.Rev. 327 (1969). The Supreme Court has not adopted a clear definition of "religion.” See Note, The Sacred and the Profane: A First Amendment Definition of Religion, 61 Texas L.Rev. 139, 141-52 (1982). It is apparent, however, that all forms of sociological activity are not entitled to protection under the free exercise clause. "A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation ... if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claims must be rooted in religious belief.” Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).

3 . It is apparent that Dr. Theodoratus applied an inappropriate definition of "religion." The report states:

Because of the particular nature of the Indian perceptual experience, as opposed to the particular nature of the predominant non-Indian, Western perceptual experience, any division into "religious" or "sacred" is in reality an exercise which forces Indian concepts into non-Indian categories, and distorts the original conceptualization in the process.

Theodoratus Report at 44. The report then suggests that hunting and fishing are religious activities for Indians. Id. While that may be correct in an anthropological sense, the federal Constitution does not recognize such a broad concept of "religion." See supra note 2.

4 . The injunction against logging is discussed in Park IV, infra.

5 . In addition, the Forest Service proposed various measures to control visitor usage of the high country. These measures were as follows:

1. Traffic will be deterred from stopping by providing no turn-outs or parking areas.

2. There will be no signing to draw attention to the ideological-spiritual or archeological sites.

3. The selection of [the route] physically restricts traffic to the proposed travel-way as most of the route is situated on side slopes.

4. The Forest Off-Road Vehicle (ORV) Plan prohibits off-road vehicle use in the area. Vehicles leaving the roadway would be in violation.

5. Interpretive information provided to the public will not draw attention to the cultural values of the area.

Case Report at 35-36.