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Dr. and Mrs. Richard Wilson 7445 North Northern Avenue Tucson, Arizona 8 5704 Dear Dick and Jane: Enclosed is a copy of a rough draft of some of the legal work which is going into the preparation of the document concerning the Presidential Proclamation on "American Indian Religious Freedom". Keep in mind that this is just a rough draft and does not contain all the material nor all the factual background. I just thought you would be interested to see what we had done to date so that you would know the bills you are getting are for work we.have been performing. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Douglas J, Wall DJW: sd That a joint resolution was used to accomplish the intended result does not detract from the legislative character of the action. Congress legislates through "acts" and "joint resolutions". Resolutions are recognized in the Constitution, and a joint resolution is a bill within the meaning of the congressional rules and the processes of Congress.* With the exception of joint resolutions proposing amendments to the Constitution, all such resolutions are sent to the President for approval and have the full force of law. They are ordinarily used for what may be called the incidental, unusual, or inferior purposes of legislating but are used as well for the highest style of legislation—proposing amendments to the Constitution and abrogating treaties. 473 F.2d. 1156, 1163 After having..been passed by both houses of Congress in July, 1978, Public Law 95-341 was approved by the President on August 11, 1978. No special provisions concerning the effective date of the joint resolution was set forth in its text.: Thus, the provisions of Public Law 95-341 became effective and binding no later than August 11, 1978, the date of its approval by.the chief executive, and is currently in full force and effect. Burgess v. Salmon, 97 U.S. 381, 24.L.Ed. 1104 (1878); Bristol Manufacturing Corporation v. United States, 2 F.Supp. 781 (Ct.Cl., 1933); United States v. Clizer, 464 F.2d. 121, cert, denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d. 673, rehearing denied, 410 U.S. 948, 93 S.Ct. 1379, 35 L.Ed.2d. 616 (1973); 73 Am.Jur.2d. "Statutes" §360, pp. 492-493. "•''''";';•• ' The text of Public Law 95-341 strongly suggests that the law is simply declarative of the terms of the Free Exercise Clause of the First Amendment to the United States Constitution. Sections 1 and 2 of the law indicate that because it is the policy of the United States "to protect and preserve for American Indians their inherent right to freedom to believe, express, and exercise" their "traditional religions", any executive department, agency or other instrumentality is forbidden from taking any action authorized" by act/of Congress which would infringe upon the rights of American Indians to the free exercise of their native religions. The legislative history of Public Law 95-341 confirms this understanding. According to both the Senate and House of Representatives Reports on Public Law 95-341, the purpose of the joint resolution was "to insure that the policies and procedures of a variety of Federal agencies are brought into complaince with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion." See Senate Report No. 95-709, Select Committee on Indian Affairs, House Report No. 95-13 08, Interior and Insular Affairs Committee, United States Code, Congressional and Administrative News, 95th Congress, Second Session, p.24 58. As stated in the 'House Report No. 95-1308, The purpose of House Joint Resolution 738, introduced by Mr. Udall for Himself and Mr. Blouin, is to insure that the policies and procedures of various Federal agencies, as they may impact upon the exercise of traditional Indian religous practices, are brought into compliance with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion. Native Americans have an inherent right to the free exercise of their religion. That right is reaffirmed by the U.S. Constitution in the Bill of Rights, as well as by many State and tribal constitutions. The practice of traditional native Indian religions, outside the Judeo-Christian mainstream or in combination with it, is further upheld in the 1968 Indian Civil Rights Act. Despite these laws, a lack of U.S. governmental policy has allowed infringement in the practice of native traditional religions. These infringements came about through the enforcement of policies and regulations based on laws which are basically sound and which the large majority of Indians strongly support. These laws often embody principles such as the preservation of wilderness areas and the preservation of endangered species for which. Indians have actively fought, literally generations before the non-Indian became convinced of their importance. But, because such laws were not intended to relate to religion and because there was a lack of awareness of their effect on religion, Congress neglected to fully consider the impact of such laws on the Indians' religious practices. It is only within the last decade that it has become apparent that such laws, when combined with more restrictive regulations, insensitive enforcement procedures and administrative policy directives, in fact, have interfered severely with the culture and religion of American Indians. According.to the legislative history underlying Public Law 95-341 as expressed in the Senate and House Reports on the bill, three general areas of infringement on Native American religious practice were of primary concern to Congress. The first was.the denial of access to Indians to "certain sites— a>hill, a lake, or a forest glade-.-which are sacred to Indian religions." The second area of concern was the restrictions on the use of substances by the federal government which are traditionally used in Native American religious ceremonies, such as peyote. The third area of concern which Congress •sought to remedy by.Public Law 95-341 was the actual interference •,by federal of ficials . with 'Native American religious ceremonies which Congress found to be "a direct threat to the foundations of religious freedom in America" and which "comes far too close to an informal state.religion." See House Report No. 95-1308, ; United States-Code, Congressional and Administrative Service, 95th Congress, Second Session, pp. 2459-2460. The very terms of the joint resolution, however, make it clear that the scope of the law goes far beyond the three major areas of concern which Congress articulated. The use of the phrase, "including but not limited to access to sites, use and possession of sacred object, and the freedom to worship through ceremonials and .traditional rights", evidences a Congressional intention ,that any federal agency action taken under the authority of an act of Congress must not# interfere in any way with the "inherent right" of Native Americans "to believe, express, and exercise" their "traditional religions". As'stated in House Report No. 95-1308, As a result of this committee's inquiry into the problems experienced by Indian traditional and religious leaders, it becomes apparent that there were many instances where the religious rites of the traditional Native Americans were being infringed upon by Federal statutes, regulations, or enforcement policies. New barriers have been raised against the pursuit of their traditional culture, of which the religion is an integral part. Based on available information, it appears that in nearly all cases the infringements which have occurred have not resulted from an express Federal policy, but rather from a lack of policy at the Federal level. In many instances, Federal officials responsible for the enforcement of the laws in question have simply been unaware of the nature of traditional native religious practices and, consequently, of the degree to which their agencies have interfered or restricted such practices. Lack of knowledge, unawareness, insensitivity, and neglect are the keynotes of the Federal Government's interaction with traditional Indian religions and cultures. This state of affairs is enhanced by the perception of many non-Indian officials that because Indian religous practices are different than their own that they somehow do not have the same status as a "real" religion. Yet, the effect on the individual whose religious customs are violated or infringed upon is as onerous as if [he] had been Protestant, Catholic, or Jewish. Public Law 95-341 unmistakeably involves religion. Whenever Congress, or any legislative body for that matter, enacts a bill which deals with religion, it must walk a tight rope between the Free Exercise and the Establishment Clause of the United States Constitution in order for its enactment to be valid. Nevertheless, because the cardinal principle of statutory construction is to save and not destroy, an act of Congress ought never be construed as being invalid on constitutional grounds if any other possible construction remains. United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 (1955); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)..Thus, a statute susceptible of either of two opposed interpretations must be read in a manner which effectuates rather than frustrates the major purpose of the legislative draftsmen, and such a statute must be read "in the candid service of avoiding a serious constitutional doubt." United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L. Ed. 770, 776 (1953); Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed., 1787, rehearing denied, 335 U.S. 836, 69 S.Ct. 9, 93 L.Ed. 388 (1948). In short, an act of Congress is presumptively valid and must if at all possible be construed in a manner consistent with its constitutional validity. Pillow v. Roberts, 54 U.S. 472, 13 How. 472, 14 L.Ed. 228 (1851) The First Amendment prohibits Congress from enacting laws which establish religion. However, the United States Supreme Court has held that the First Amendment "does not say that in every and all respects there shall be a separation •of Church and State".because laws may properly be passed which "respect the religious nature of our people and accomodate the public service to their spiritual needs." Zorach v. Clauson, 343 U.S. 306, 312-314, 72 S.Ct. 679, 96 L.Ed. 954, 961-962 (1952). Accord: - Anderson v. Salt Lake City Corporation, 475 F.2d. 29 (10th Cir., 1972); Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C., 1974). In Waltz v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d. 697 (1970) the United States Supreme Court confronted the problem posed to legislative enactments dealing with religion by both the Free Exercise and the Establishment Clauses of the First Amendment and sought to define guidepost by which the validity of such legislation could be tested. The Court stated: may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles. The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. * * * * * * * * * * * * * The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment-,and all that has been said by the Court is.this: that we will not tolerate either governmentally established ' religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joint productivity of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without •'interference. 25 L.Ed.2d. 697, 701-702, 397 U.S. 664,,. 668-669. As this language suggests, total separation of church and state is not mandated by the First Amendment. Rather, neutrality is the touchstone, and incidental benefits conferred upon religion are not proscribed-by the First Amendment. In any case the critical question is whether state action approaches the three major concerns of the Establishment Clause; to wit, sponsorship, financial support, and active involvement. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d. 948 (1973); Americans United for the Separation of Church and State v. Blanton, 433 F.Supp. 97 (M.D.Tenn., 1977). To determine whether or not a legislative act or other state action violates the Establishment Clause, the United States Supreme Court has fashioned and consistently applied a three-pronged test.. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105,- 29-JL.Ed.2d. 745 (1971). As stated in Meek v. Pittenger, 421 U.S. .349,. 95 S.Ct. 1753, '44-L.Ed. 2d. -217 (1975) in order for state action to be valid in terms of the Establishment Clause, the following test must be met: First, the statute must have a secular legislative purpose. . . Second, it •must have a "primary effect" that neither advances nor inhibits religion. . . Third, the statute and its administration must avoid excessive government entanglement with religion. 421 U.S. 349, 358, 95 S.Ct. 1753, 1760. The Supreme Court has hastened to emphasize that this test is not to be rigidly construed. In Meek v. Pittenger, supra., the Court stated that "the test must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the-objectives of the Establishment Clause . have been impaired." 421 U.S. 349, 359, 95 S.Ct. 1753, 1760. In-that same case, the Court added that: But it is clear that not all legislative programs that provide indirect or incidental benefit to a religious institution are-prohibited by the Constitution. [citation omitted] The problem, like many problems in constitutional law, is one of degree. [citation omitted] 95 S.Ct. 1753, 1760. At first blush one might be inclined to say that Public Law 95-341 fails.this three-pronged test. However, on closer analysis and in terms of the basic rules of statutory construction set. forth above, the bill does not offend the Establishment Clause. First, Public Law 95-341 can properly be interpreted to have a secular legislative purpose. The law is aimed at federal agency action taken in the secular world. It touches on the administration of public lands and the enforcement of narcotic laws, environmental legislation and the like undertaken by federal agencies. In short, the primary purpose of the bill is to force federal agencies to take such action in the secular world as will not invade the freedom of Indians to worship or otherwise pursue their traditional religious beliefs. Secondly, the primary effect of the statute neither advances nor inhibits religion. The very findings of the House and Senate committees that federal agency action in the past has inhibited religion negates any conclusion that the act advances religion. To be sure, the law incidentally benefits native American religions to the extent that they are no longer inhibited by federal agency action as they had been in the past. Such, hov/ever, is not advancement in the sense of preference, but rather is a declaration that Native Americans must be allowed to practice their religion as freely as any sect in the Judeo-Christian mainstream and that federal agency action must not.inhibit such practice as it has in the past. The notion of "benevolent neutrality" expressed in the Waltz case, supra., aptly describes the intended effect of Public Law 95-341. ; Third, the bill does not excessively entangle the federal government with religion. The purpose and effect of the bill is directed to agency action taken in the secular sphere, and the act does nothing more than require federal agencies.to comply with the First Amendment mandate to take no action which infringes upon the free exercise of religion. Furthermore, it was found that "no additional cost to the Government would be incurred as a result of the enactment of this bill" and that Public Law 95-341 "will have no inflationary impact." In short, Public Law 95-341 is merely declarative of the Constitutional mandate that no federal agency action may interfere with or infringe upon the free exercise of religion, be that religion a part of the Judeo-Christian mainstream or of the Native American Minority. To the extent that.it seeks to correct past abuses the law steers a course of "benevolent neutrality" between the Establishment and Free Exercise Clauses. Because the law is declarative of the mandate of the Free Exercise Clause of the First Amendment, a determination of whether or not the law has been violated by agency action involves the same scope of inquiry and an application of the same legal principles involved in determining whether or not federal agency action is valid or invalid in terms of the proscriptions of the Free Exercise Clause of the First Amendment to the.United States Constitution. The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise •thereof". Courts have held that this portion of the First Amendment binds only the actions of Congress or of federal agencies and, by virtue of the Fourteenth Amendment, actions of the several states. The constitutional provisions concerning the establishment and free exercise of religion do not generally affect private action. Business Executives' Move For •;. Vietnam Peace v. Federal Communications Commission, 450 F. 2d. .642, 650 (U.S.App.D.C., 1971); Mclntire v. William Penn Broadcasting Company of Philadelphia, 151 F.2d. 597, 601 (3rd Cir., ,1945). : As the Court stated in Massachusetts Universalist Convention v. Hildreth & Rogers Company, 183 F.2d. 497 (1st Cir., Plaintiff has argued that on the allegations of the complaint, it has a cause of action for the violation of its rights to freedom of speech and freedom of religion under the First Amendment to the Constitution. But this Amendment limits only the actions of Congress or of agencies of ' -•• •'"' the federal government and not private corporations such as defendants here. 183 F.2d. 497, 501, emphasis added. As this statement indicates, action taken by federal agencies is subject to,the prohibitions of the First Amendment. Courts have held that a cause of action may exist when an agency of the executive branch of the federal government takes action which violates the proscriptions of the Establishment or the Free Exercise Clause of the First Amendment. Allen v. Hickel, • 424 F.2d. 944 (U.S.App.D.C, 1970); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz., 1968). Even as the First Amendment is a limitation upon the power of Congress, federal agencies and the several states and thus has no effect upon the transaction of purely private persons, there are limited circumstances in which otherwise private action becomes subject to the requirements of the First Amendment. The provisions of the First Amendment become applicable to private action which attempts to infringe upon the free exercise of religion only where a governmental entity is significantly involved in the private action so as to make the private action governmental action for constitutional purposes. Golden v. Biscayne Bay Yacht Club,-521 F.2d. 344 (5th Cir., 1975). As the Court stated-in Granfield v. Catholic University of America, 539 F.2d. 1035 (U.S.App.D.C., 1976), The first amendment becomes relevant to a private institution's attempts to infringe upon the freedom of"an individual to practice 'his religion only when a governmental entity 'is shown to have become significantly involved in the discrimination practiced by it. 530 P.2d. 1035, 1046-1047 . :' The United States Supreme Court has recognized not only that not every belief put forward as "religious" may be elevated to a level which would make it subject to constitutional and appropriate statutory protection but also that the factfinding process .involved in determining what is or is not a "religion" subject to constitutional.and statutory protection is sensitive, • difficult-and stringently limited in scope. Accordingly, the •Supreme Court has fashioned a two-pronged test which courts are to employ in determining what is and is not a "religion" subject to^constitutional and statutory protection. . The first prong of this test is that the facts must show some-reasonable possibility that the convictions or beliefs are sincerely held. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, ,32-L.Ed.2d. 15 (1972). As the Court stated in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d. 733 ^(1965) But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether •it is "truly held". This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact. . . 13 L.Ed.2d. 733, 747 The second prong of the test is that the facts must show that the belief or conviction must be based upon that which can be broadly characterized as "theological" rather than something which is purely secular, social, political, or moral in ,nature. -Wisconsin v. Yoder, supra. In United States v. Seeger • supra., the Court concluded that a belief in relation to a •'Supreme Being as such terms were used in a federal statute 'included.. any sincerely held belief which occupied a place in the life of its possessor which was parallel to that filled by the orthodox belief in God. In so holding the Court stated that: We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God" was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief "in relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor paralell to that filled by the orthodox belief in God . . . Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not. 13 L.Ed.2d. ' 733, 737 United States v. Seeger, supra., the Court was dealing with a matter of statutory construction, an area in which its :scope of inquiry is more narrowly circumscribed than in matters of constitutional interpretation. Nevertheless, the Court sought •to define "religion" in terms of "the ever-broadening understanding of the modern religious community." 13 L.Ed.2d. 733, 745. To that end the Court relied.upon Paul Tillich's notion that religion or belief in God was not so much a projection beyond .the: skies but. rather was the ground of an individual's very being. In addition to the views of other contemporary theologians, the Court also placed much reliance upon official pronouncements of the Second Vatican Council from which it quoted the following passage: "Ever since primordial days, numerous peoples have a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to.man's religious questions. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, althought they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men." 13 L.Ed.2d. 733, 746 The broad understanding of "religion" enunciated by the Court in Seeger was reaffirmed in Wisconsin v. Yoder, supra. in the context of purely constitutional interpretation. In Yoder the Court held that the religiously grounded desire of members of the Amish Mennonite Church to keep their children out of high school outweighed the state's interest in compulsory attendance laws. In so holding the Court stated: A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claim must be rooted in religious belief. Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau*s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. 32 L.Ed.2d.. 15, 25 ;.;•• Although Seeger and Yoder provide no concise and concrete . .definition of "religion"/: these case suggest that all that is excluded is purely personal, secular belief of a moral, ethical, political or philosophical nature unrelated to any perception of transcendental reality. These cases suggest that any sincerely held belief in an ultimate ground of being or in a transcendental reality.or related cosmology of hidden powers which pervade the course of human events must be deemed a "religion" for the purposes of constitutional and appropriate -statutory protection. In interpreting Seeger and Yoder, the lower federal courts have so held. Founding Church of Scientology of Washington v. United States, 409 F.2d. 1146 (U.S.App.D.C., 1969), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d. 427 (1969); •United States v. Kahane, 396 F.Supp. 687 (E.D.N.Y., 1975); Malnak v. Maharishi Mahesh Yogi, 440 F.Supp. 1285, 1319-1323 (D.N.J., 1977). As the Court stated in Stevens v. Berger, 428 F.Supp 896 (E.D.N.Y., 1977), The court, in undertaking this difficult and sensitive factfinding task, recognizes stringent limitations on its right of inquiry. Under the United States Constitution, an individual's right to believe in anything he or she chooses in unquestioned. Religious beliefs are not required to be consistent, or logical, or acceptable to others. Governmental questioning of the truth or falsity of the beliefs"themselves is proscribed. [citations omitted.] A religious belief can appear to every other member of the human race preposterous, yet merit the protection of the Bill of Rights. Popularity, as well as verity, are inappropriate criteria. * * * * * * * * * * * * * * * Delicacy in probing and sensitivity to permissible diversity is required, lest established creeds and dogmas be given an advantage over new and changing modes of religious belief. Neither the trappings of robes, nor temples of stone, nor a fixed liturgy, nor an extensive'literature or history is required to meet the test of beliefs cognizable under the Constitution as religious. So far as our law is concerned, one person's religious beliefs held for one day are presumptively entitled to the "same protection as the beliefs of millions which have been shared for'thousands of years. 428 F.Supp. 896, 899-900, passim. Under this broad understanding of "religion" courts have consistently held that the beliefs of the American Indians and the practices of so-called "native American religions" are bona fide religions for the purposes of First Amendment protection. Such decisions rest in large part upon the ancient, oral traditions underlying such beliefs and, of course, upon the sincerity with which they are held by the particular litigants in question. Teterud v. Burns, 522 F.2d. 357 (8th Cir., 1975); State v. Whittingham, 19 Ariz. App. 27, 406 P.2d. 950, review denied, 110 Ariz. 279, 517 P.2d. 1275 (1973), cert, denied, 417 U.S. 946, 94 S.Ct. 3071, 41 L.Ed.2d.'667 (1974); People v. Woody, 394 P.2d. Once it is established that a "religion" is bona fide and subject to First Amendment protection, courts become bound by the decisions of the highest authorities in a particular religion on matters concerning discipline, faith, ecclesiastical :rule, custom and law. Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. r 696,'.96 S.Ct. 2372, 49 L.Ed.2d. 151 (1976); Presbyterian Church . in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d. 658 , (1969); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 50,S.Ct. 5, 74 L.Ed.131. (1929). This is so because religious organizations are free from secular control and possess the power to decide for themselves questions of doctrine, morals, faith and discipline which courts must respect and apply where 'appropriate. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). As the Court stated nearly a century ago in Watson v. Jones, 13 Wall. 679, 80 U.S. 679 20 L.Ed. 666 (1871), Whenever the question of discipline, or of faith or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. 80 U.S. 679, 727. For a century it has been an axtiom of American constitutional law that the Free Exercise Clause of the First Amendment to the United States Constitution embraces two concepts; namely, the freedom to believe in religious tenets and the freedom to act in accordance with them. While the freedom to hold religious beliefs is absolute and not subject to governmental regultion in any way, the freedom to act in accordance with such beliefs "remains subject to regulation for the,protection of society." Cantwell v. Connecticut, 310 -U.S..296, 303-304, 60 S.Ct. 900. 903, 84 L.Ed. 1213 (1940); Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244, 250 (1878); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d. 15 (1972). Even as conduct and action based upon religious belief may be subject to governmental regulation, any governmental action which ingringes or touches upon religious conduct and action must pass stringent tests. The United States Supreme Court has repeatedly emphasised that governmental action which infringes even incidentally upon religious conduct and action is justified only if the object of such governmental action serves a "compelling state interest" since only "the gravest abuses, endangering paramount interest, give occasion for permissible limitation" of religious practices. Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d. ,965 (1963); Cantwell v. Connecticut, supra.; Wisconsin v. Yoder, supra. As the Supreme Court stated in West Virginia State Board ?of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. '11628 (1943), The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, emphasis added. ' .. Apart from particular factual contexts,.it is difficult to fashion any concrete defintion .of the term "compelling state interest". It has, however, been generally stated that under the "compelling state interest" or strict scruitiny" test the government must demonstrate that the articulated object of its action is one which by force of necessity it is obligated to protect. Coleman v. Coleman, 291 N.E.2d. 530, 534 . (Ohio, 1974); accord: Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d. 600 (1969); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Howe v. Brown, 319 F.Supp. 862 (N.D.Ohio, 1970). As the Court stated in Dunham v. Pulsifer, 312 F.Supp. 411 (D.Vt., 1970), The traditional . . . test looks simply to the reasonableness of the regulatory scheme in light of its possible intended purpose. Under this test, a classification is valid if it is not arbitrary and has a reasonable connection with some permissible legislative or administrative purpose. Slight justification in terms of reasonableness often suffices here because the only countervailing interest of the individual is his stake in being treated the same as some particular group of his fellows. The regulatory classification must still be reasonable however and arbitrary classifications have been rejected simply because they were arbitrary. [citations omitted] A regulatory classification which, in addition to the creation of differential treatment, serves to penalize the exercise of a fundamental right must be justified by a compelling governmental interest. The operational difference is that a court will invalidate a classification which infringes upon a separate fundamental right unless the classification is shown to be necessary in the service of some compelling state interest, rather than just rationally related to some permissible state interest. [citations omitted]. The "compelling state interest standard, or the standard of "active review" called upon the state to show more than a link of reasonableness. The state must demonstrate the pressing importance of the classification in the context of some necessary governmental objective. 312 F.Supp. 411, 416-417, emphasis added. A showing that governmental action which imposes "any incidental burden" upon religious conduct and practice serves a "compelling state interest", however, is insufficient in and of--itself to justify such governmental action. In addition to , demonstrating that the object of governmental action which burdens religious action serves a "compelling state interest", there must also be a showing that "no alternative forms of regulation would combat such abuses without infringing First .Amendment rights." Sherbert v. Verner, supra., note 13, 374U.S. at 407, 83 S.Ct. at 1796; Cantwell v. Connecticut, supra.; accord: Carroll v. President & Commissioners of Princess Anne, 393 U.S..175, 89 S.Ct. 847, 21 L.Ed.2d. 324 '(1968). As the Supreme Court stated in Shelton v. Tucker, ; 364 U.S. 479,.*81 S.Ct.: 247, 5 L.Ed.2d. 231 (1960), In a series of decision this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stiffle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving that same basic purpose. 364 U.S. 479, 488, 5 L.Ed.2d. 231, 237, 81 S.Ct. 247, 252. Accordingly, when governmental action imposes "any incidental burden" or infringement upon the religious activities of an individual or a class of people, such governmental action is deemed to be valid only if it passes a two-fold test. First, the object sought to be achieved by such governmental .action must itself serve a compelling governmental interest, one involving only the "gravest abuses" and "endangering the interests" of society. Secondly, the means employed by the the government to achieve an objective which serves a compelling state interest must be such as to involve the least possible restriction on the exercise or practice of religious belief. Accord: Linscott v. Miller Falls Company, 440 F.2d. 14 (1st Cir., 1971), cert, denied 404 U.S. 14, 92 S.Ct. 77, 30 L.Ed.2d. 116 (1972); Brown v. Peyton, 437 F.2d. 1228 (4th Cir., 1971). The measure that must be employed is not one of equal balance. In this area, balanced scales weigh against government regulation. The state must'have a compelling interest in the regulation in question, [citation omitted], and there must be no equally effective alternative means to achieve the state's objective. Walsh v. Louisiana High School Athletic Association, 4 28 F.Supp. 1261, 1267 (E.D.La., 1977) Only in rare instances where a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate" is shown can a court uphold state action which imposes even an "incidental burden" on the free exercise of religion. In this highly sensitive constitutional area "'[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'" [citation omitted]. Restrictions on the free exercise of religion are allowed only when it is necessary "to prevent grave and immediate danger to interests which the state may lawfully protect." [citation omitted], "[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." [citation omitted]. McClure v. Salvation Army, 460 F.2d. 553 (5th Cir., 1972) Where governmental activity impairs individual ability to abide religious beliefs, two demonstrations become essential to its validity. The first is a clear showing that "any incidental burden on the free exercise of appellant's religion [is] justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate * * *;•" on this score "[o]nly the gravest abuses, endangering paramount interests" can engender permissible limitations on free exercise. The second is an equally convincing showing that "no alternative forms of regulation would combat such abuses without infringing First Amendment rights." For "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." However attractive the end to be achieved, the means employed must hoard First Amendment values. . Barnett v. Rodgers, 410 F.2d. 995, 1000 (U.S.App.D.C, 1969) ' Accordingly, , in Pillar of Fire v. Denver Urban Renewal .Authority, 509 P.2d. 1250 (Colo., 1973) an urban renewal authority threatened to condemn a church hall which was located on a block slated for acquisition and construction of urban renewal projects. The church hall had been built in 1903 and 1904 shortly after the founding of the Pillar;,of Fire Church, an evangelical offshoot of Methodism founded in 1901 by the evangelist Alma White in Denver, Colorado which was first known as the Pentecostal Union. In its earliest days the church held its meetings in tents, but' as it1 grew; the church hall at issue in the case was constructed 'and used for church meetings. The church alleged that the t hall was revered by members for its historical and symbolic meanings in the birth of the Pillar of Fire Church and that under the Free Exercise Clause of the First Amendment the Urban Renewal Authority should be enjoined from condemning > and demolishing the church hall. The Court held that in order to proceed with condemnation and demolition of the building which was alleged to be the birthplace of the Pillar of Fire Church and in which religious services were conducted, the Urban Redevelopment Authority must demonstrate at a court hearing that condemnation was justified by a compelling state interest and that no other reasonable alternative means of accomplishing that goal were available. In so holding the Court stated: The only conclusion which we can draw is that we must balance the interests involved in the controversy before us and recognize that the state must show a substantial interest without a reasonable alternate means of accomplishment if the state is to be constitutionally allowed to take the birthplace of the Pillar of Fire Church, which is alleged to be sui generis. * * * * * * * * * * * * * * The Pillar of Fire is entitled to a hearing at which the competing interests of the Renewal Authority and the church can be weighed. A court must be given an opportunity to judge whether the Authority's plans for the specific block and the site of the church are so vital to the overall renewal plan that the petitioner's property should be condemned and demolished. The First Amendment protects freedom of religion which has its roots in the hearts and souls of the congregation, not inanimate brick and mortar. Yet, religious faith and tradition can invest certain structures and land sites with significance which deserves First Amendment protection. * * * When regulating religious conduct, however, the state may be challenged to justify its infringement of the totally free exercise of religion. "' [citation omitted] We hold ' that under these circumstances, the state may be so challenged to justify a use of its power of eminent domain. The District Court must weigh the plans and goals of the Renewal Authority, as they bear on the particular land in question, against the right of the Pillar of Fire Church to maintain a brick structure which the Church claims is unique and does not conform to the general plan for development of the block. The petitioner's claim that the sui generis nature of the mother church of the Pillar of Fire prohibits condemnation causes us to apply a balancing test in considering the rights of the parties to this action. * * * We cannot uphold an unreviewed. general decision by the Renewal Authority which will destroy the first church which was erected bv the members of the Pillar of Fire Church. The petitioner is entitled to its day in court to determine which of the riqhts should prevail. 509 P.2d. 1250, 1253-55, passim, emphasis added.* Upon remand the trial court determined that condemnation should proceed, and-that order was affirmed by the Colorado Supreme Court. Nevertheless, in Denver Urban Renewal Authority v. Pillar of Fire, 552 P.2d. 23 (Colo., 1976) the Court reaffirmed the principles upon which its earlier decision turned but simply ruled that the trial court's findings of fact supported condemnation and were not clearly erroneous. "The single-most significant factor which compelled this court to adopt a balancing test when this case was first before us was the allegation by Pillar of Fire that this particular church building and site—the subject of the condemnation action—had "unique religious significance" for that denomination," the Court stated. 552 P.2d. 23, 24 The record, however, supported the proposition that the building was not the birthplace nor the mother church of the Pillar of Fire denomination and that in fact the denomination had attempted to sell the property some years prior to the condemnation efforts. The Court further found that the redevelopment authority had demonstrated not only a compelling state interest in the urban renewal project but also had shown that alternative means of accomplishing the project ."could not be achieved if the [church] •building remains in place". The Court thus concluded that even :if the Pillar of Fire had proven that the "church building was suit generis, the scales tip convincingly in favor of the interest" of the authority because the authority had met its burden of proof according.to the constitutional standards delineated above. 552 P.2d. 23, 25. The Pillar of Fire holding was followed in Order of Friars of the Province of the Most Holy Name v. Denver Urban Renewal Authority, 527 P.2d. 804 (Colo., 1974) a redevelopment authority: sought to condemn a church parking lot located next to a monestary which had been designated as an historical site by state authorities. The church resisted the condemnation on First Amendment grounds by arguing that the lot was necessary to its operation by virtue of that fact that it would impose a great difficulty upon many parishioners to attent were parking not available. The church contended that unless the lot was preserved, many parishioners would cease or at least be discouraged from attending church. The Court held that only after a hearing weighing and balancing the competing interest between the public aspects and the religious aspects and upon a finding that there was a compelling public interest involved which could not be accomplished through any other reasonable means could the court properly order condemnation of the property. In so holding the Court stated: The subject property, having been designated an historical landmark, is analogous to the situation in Pillar of Fire, which involved the mother church and fountain-head of the sect. In such a situation, then, Pillar of Fire establishes that the court has a duty to weigh and balance the competing interests, public and religious. Only after such a hearing and upon a finding that there is a substantial public interest involved which cannot be accomplished "through any other reasonable means", can the court proceed with the condemnation of property. 527 P.2d. 804, 805 It is firmly established that the functions of government under the United States Constitution are apportioned among three branches of government. The legislature has the duty to make laws. The executive branch has the duty to execute orrenforce those laws,, and the judiciary has the duty to interpret and apply those laws in case properly brought before it. Commonwealth of Massachusetts v. Mellon, 262 U.S. 446, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1928); Los Angeles Customs and Freight Brokers Association v. Johnson, 277 F.Supp. 525, ;,538-539 (C.D.Cal., 1967.)..- The executive department of the government, which includes the various departments and agencies under the authority of the President, has the legal duty to administer all''laws honestly and efficiently, and it can neither select those laws which it will enforce, forbid or fail to execute some laws, nor extend its powers under official pretext beyond those provided by law. Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 12 Pet. 524, 9 L.Ed. 1181 (1838); Newfield v. Ryan, 91 F.2d. 700 (5th Cir., 1937), cert denied, 302 U.S. 729, 58 S.Ct. 54, 82 L.Ed. 563, rehearing denied, 302 U.S. 777, 58 S.Ct. 138, 82 L.Ed. 601 (1938); Strutwear Knitting Co. v. Olson, 13 F.Supp. 384 (D.Minn., 1936). As the Court stated in Application of Texas Company, 27 F.Supp. 847 (E.D.I11., 1939), The Executive Department, with all its branches, is charged with the true and faithful administration of the acts of Congress. * * * It is its duty to admin-ister all laws honestly and efficiently; and for its failure to do so penalties and remedies are provided. The Executive Department carries the acts of the Congress into effect, administers them, secures their due performance and enforces them. 27 F.Supp. 847, 849-850. UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE Region 3 517 Gold Avenue, SW Albuqueruqe, New Mexico 87102 1570(Rn) APR 5 1979 Mr. Robert VI. Warden Mangum, Wall, Stoops & Warden 222 East Birch Avenue P.O. Box 10 Flagstaff, Arizona 86002 Dear Mr. Warden: Your request for stay of the decision by Forest Supervisor Michael Kerrick concerning the Arizona Snow Bowl is granted. The stay will remain in effect until the administrative review record is complete and my decision is made. Sincerely, M. 0. HASSELL Regional Forester Ski operator to fight curb on expansion By John Schroeder Northern Arizona Bureau FLAGSTAFF — Snow Bowl operator Norman .Johnson said Friday he will appeal a Forest Service decision not to allow an expansion at the ski area and vowed to seek support from Arlzonans to save II. Johnson said .the decision hy Re-glnrtal Forester M.J. Masseil last week was " I l l o g i c a l , " without documentation and amounts to "economic condemnation" of the ski area in the San Francisco Peaks. Hassoli reversed a decision by Coconino National Forest Supervisor Mike Kerrick to allow expansion in the 777-acre permit area by saying the "line has to be drawn somewhere" because the ski area never will be "a top-notch" facility. Masseil also noted (hat expansion would violate the rights of area Indian tribes who consider the peaks sacred. Johnson said he will place advertisements in Arizona newspapers urging residents to solicit help from Gov. Bruce Babbitt to preserve the ski area. Since ftasseii announced his decision, Johnson said there has been a "tremendous outpouring of people calling to ask what they can do." Unless the expansion is allowed, Johnson said, "We will continue to run as long as we can, but we gel into this limiting factor where it's not economically sound to run." tie added, "I can operate with the e x i s t i n g equipment until it is no longer safe. I could never replace these f a c i l i t i es under these restrictions." Johnson criticized Hasseil for saying the Snow Bowl is not an outstanding winter-sports area. He said nearly 100,000 persons used the chairlift last year. The statistics, he said, show the Snow Bowl "is doing more skier days hy almost three times than any other ski area in the United Slates." Editorial appearing in the Arizona Republic 2/20/80 UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE Region 3 517 Gold Avenue, SW Albuquerque, New Mexico 87102 1570(Rn) APR 6 1979 Mr. Robert W. Warden Mangum, Wall, Stoops & Warden 222 East Birch Avenue Flagstaff, Arizona 86002 Dear Mr. Warden: Your request for an oral presentation relevant to your appeal of Forest Supervisor Kerrick's decision regarding the Arizona Snow Bowl is granted. The time, date, and place will be set when I have received all the requests for presentations, and you will be notified of the arrangements. Sincerely, W. J. HASSELL Regional Forester CM-RRR M E M O R A N D U M TO: File FROM: John Feeney RE: Arizona Snow Bowl Expansion: Washington Meetings On April 2, 1979 the Departments of the Interior and Agriculture held two meetings which dealt with matters relevant to the opposition by Native American Indians to expansion of skiing and recreational facilities at the Arizona Snow Bowl on the San Francisco Peaks. Doug Wall, Bob Warden, and John Feeney from Mangum, Wall, Stoops, & Warden attended part of one meeting and all of the other meeting. The following is a brief summary of the matters which took place at these meetings. Meeting of the Task Force on the American Indian Religious Freedom Act, Public Law 95-341 This meeting of the task force for the implementation of the American Indian Religious Freedom Act commenced at 9:00 a.m. in Room 7000-A of the Interior Building. The task force consisted of members of the various executive departments and agencies and was headed by Assistant Secretary of the Interior for Indian Affairs, Forrest Gerard. The Department of the Interior is charged with the duty of compiling a report to be submitted to Congress by August 11, 1979 concerning compliance by the various federal agencies and departments with the requirements of the Act. One Suzan Harjo, a Special Assistant to the Assistant Secretary was in charge of the meeting, the purpose of which was to determine the progress which the various federal agencies were making in complying with the act. Some 42 persons were present, the vast majority of whom were either members of the task force or represenatatives of the various departments and agencies of the executive branch of government. It was fairly evident that the Assistant Secretary and his Special Assistant did not want members of the general public to attend the meeting; and, short of throwing them out, they did all that they could to make them feel unwelcome. The reason became readily apparent as the meeting progressed. Practically none of the agencies who sent representatives to the meeting had done anything to determine whether or not any of their projects were affected by the Act. Only the Department of Trasportation confessed that one of its highway projects might be affected by the terms of the law. The Forest Service simply stated that it was completing its report and review of the act and would forward its study and regulations when completed. This sentiment was echoed by nearly all agencies represented at the meeting. Worse yet, Ms. Harjoe, the Special Assistant whose organizational skills were practically nonexistant, had managed to lose or misplace those few agencies reports which had been sent to her. In short, in the eight months since the passage of the Act, one could not help but possess the definite and firm conviction that the Task Force charged with its implementation was paralized by chaos. One interesting aspect of this first meeting was a short talk given by a young Indian member of the task force who provided those present with an historical perspective of American Indian religions. He emphasized that in all Native American religions spiritual belief is permeated by the understanding of the presence in all aspects of life and nature of deities. Yet from the Puritan times to the present Indians have been looked upon as irreligious heathens because their religious concepts are at odds, at least in degree of emphasis, with mainstream Judaeo-Christianity. This, he stated, has led to a sense of inequality on the part of Indians with respect to the dominant culture and, concomitantly, to a wanning of traditional Native American beliefs in the process of cultural assimilation. He noted that at one point government reports dealing with Native American religious beliefs and practices characterized them as barbarous and sought legislation to prohibit them. He concluded by implying that with Public Law 95-341 legislation now exists to right the past wrongs perpetrated by a dominant Judaeo-Christian culture on Native American religious beliefs and practices. These remarks pointed out a basic premise from which many of the task force members operated; namely, Public Law 95-341 was intended as some sort of affirmative action legislation by which the force of government would be used to revitalize traditional Native American religious beliefs. This is a more radical interpretation of the Act that this writers has himself advanced, and it is one which presents very serious problems under the Establishment Clause of the First Amendment. II Meeting on the San Francisco Peaks The Departments of the Interior and Agriculture held a special meeting at 10:00 a.m. in the Interior Building on the matter of expansion of skiing and recreational facilities on the San Francisco Peaks. Forrest Gerard, Assistant Secretary, represented the Department of the Interior, and Rufus Cutler, Assistant Secretary, represented the Department of the Agriculture. Some subordinate officers of these two departments were also present as were Governor Lewis of the Zuni Tribe, Abbott Sequaptewa Chairman of the Hopi tribe, John Kennedy, attorney for the Hopi tribe, two Hopi religious elders, Washington counsel for the Navajo tribe, Bob Warden, Doug Wall, John Feeney, and Robert A. Warden of Peabody, Rivlin, Lambert and Meyers, Washington counsel for Richard Wilson. Because of the United Airline strike and the unavailability of flights into Washington, no Navajo medicinemen were present at the meeting. Governor Lewis of the Zuni tribe spoke first. He stated that the Zuni people, like the Hopis, regard the entire San Francisco Peaks as a holy place. They regard the pines and firs which grow on the mountain as holy and make pilgrimages to the Peaks to retrieve their branches for ceremonial purposes. He stated that the Zunis oppose expansion of the Snow Bowl because that which was made by the creator was created in its natural state and must remain so. He asked that development be stayed. The Washington counsel for the Navajo tribe spoke after Governor Lewis. He simply stated that the Department of Agriculture could either rescind the Forest Supervisor's decision or face a lawsuit. The tribe, he stated, was prepared to fight the decision to the end for total elimination of the Snow Bowl. Doug Wall spoke next. He stated that he represented Richard Wilson and, in Ben Hufford's absence, the Navajo Medicinemen's Association. He emphasised that implementation of the proposed alternative amounted to a sacriligious gouging of the body and face of what the Navajos believed to be a living and holy deity. He stated that the decision must at least be stayed pending the administrative appeal process and until the Department of Interior has issued its final regulations under the act. Abbott Sequaptewa, Chairman of the Hopi Tribe, spoke briefly in order to introduce two Hopi elders from the Kachina Clan. Mr. Lewis, the high priest of the Kachina Clan was the only Indian to speak. He stated that he and his clan possessed stewardship over the San Francisco Peaks because the Kachina people live there. The spirit people live within the mountain's interior where there is the sacred shrine or kiva. The Hopis deposit offerings on the slopes of the Peaks at a secret but specified place. The Peaks, he noted, regulated the ceremonial calender of the Hopis as well as their entire lives and must be kept inviolate. Not only must the facilities not be expanded, he stated, but also, they must be removed and the mountain returned to the Indians in its natural state so that they might exercise their divinely ordained task of stewardship. Rufus Cutler, Assistant Secretary of the Agriculture, then reviewed the status of the Forest Supervisor's decision. Cutler stated that he was familiar with the Flagstaff area having worked in Winslow, Arizona in years past as well as at the Howdy Hank's Trading Post for some years. He noted that expansion would take place only within the designated permit area. He suggested that a possible compromise might be to close the forest, at least that which will be designated a wilderness area but not the permit area, to all except Indians on ceremonial occasions. He also suggested that an advisory council be created to plan the use of the area outside of the permit boundaries for Native American religious practices. He noted that the entire mountain might qualify as an historical site under the National Historic Preservation Act because of its religious significant. Nevertheless, the underlying tone of Assistant Secretary Cutler's remarks implied a justification for the Forest Supervisor's decision to expand the facilities. His view appeared to be that everything except the permit area might be considered sacred and unalterable. One of his subordinates even indicated that he had talked to Norm Johnson the morning of the Washington meeting concerning the expansion. Abbott Sequaptewa picked up on this implied assumption of the Assistant Secretary and would have none of it. He criticized Cutler's insensitivity and all but accused him of subordinating religious values to monetary advantages of the white community. There must, Sequaptewa stated, be no corruption of the mountain by human hands since only in its natural state will it bring a good and bountiful life to all beings on earth. John Kennedy, attorney for the Hopi Tribe spoke after Abbott Sequaptewa. He emphasised the religious significance which the San Francisco Peaks possessed in the Hopi way of life and stressed that the Hopis would fight to the end to eliminate the Snow Bowl. During the course of the meeting Doug Wall presented to both Assistant Secretary Cutler and Assistant Secretary Gerard a bound copy of the Wilson administrative appeal brief including the document on the religious significance of the mountain. The two undersecretaries stated that they would review it. After attorney Kennedy finished speaking, the meeting broke up. United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 MEETING OF THE TASK FORCE TO PREPARE THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT IMPLEMENTATION REPORT, APRIL 2, 1979, • WASHINGTON, D.C. Opening Remarks - Assistant Secretary - Indian Affairs Forrest J. Gerard Overview - Status Report - Special Assistant to the Assistant Secretary - Indian Affairs Suzan Shown Harjo Introduction - Task Force Members and Project Representatives Status Report from Task Force Members Status Report from Project Representatives Discussion - Report Preparation 1. Consultation 2. Public participation 3. Task Groups 4. Field Meetings 5. Schedule 6. Deadlines for Draft Report April 19, 1979 The Honorable Cecil D. Andrus Secretary of the Interior Interior Building Washington, D.C. 20240 Re: Notice of Violation of the Endangered Species Act Resulting from the Proposed Expansion of Skiing and Recreational Facilities at the Arizona Snow Bowl, Coconino National Forest, Coconino County, Arizona. Dear Mr. Secretary: This office represents Richard F. Wilson and Jean Wilson, private citizens who reside in Tucson, Arizona and who hold fee title to a tract of land on the slopes of the San Francsico Peaks in Coconino County, Arizona in the immediate environs of the Arizona Snow Bowl, a skiing and recreational facility which is located on lands owned by the United States of America as a part of the Coconino National Forest and which is operated by a private Arizona corporation, Northland Recreations, Inc., under use permits from the United States Forest Service, Department of Agriculture. Upon the request of the private operator of the Arizona Snow Bowl, the Forest Service has recently approved and recommended radical expansion of the skiing and recreational facilities on these public lands. Because the Wilsons find that expansion of such facilities would interfere materially and substantially with their environmental and aesthetic values and enjoyment of their own property and the continguous public lands, they have opposed this expansion. Since the United States. Forest Service issued its Final Environmental Impact Statement in connection with its recommendations for expansion of the Arizona Snow Bowl on February 27, 1979, it has become apparent to the Wilsons that the recommended expansion violates the provisions of the Endangered Species Act of 1973, 16 U.S.C. §1531, e_t. seq. which the Secretary of the Interior is responsible for administrating. The Wilsons have filed an administrative appeal with the United States Forest Service MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Two from the Forest Supervisor's decision to allow expansion of skiing and recreational facilities at the Arizona Snow Bowl on March 27, 1979 in which they brought to the attention of the Forest Supervisor and his superior the violations of the Endangered Species which would result if the proposed expansion were implemented. By this letter, the Wilsons are giving written notice to you as Secretary of the Interior of these same violations pursuant to the provisions of 16 U.S.C. §1540(g)(1)(A)(B) and 16 U.S.C. §1540(g)(2)(A)(B). The Final Environmental Impact Statement acknowledges that two species of plants grow within Arizona Snow Bowl permit area which have been proposed for listing as endangered species under the provisions of the Endangered Species Act, 16 U.S.C. §1531, e_t seq.; to-wit, Ranunculus inamoenus var. Subaffinis, and Senecio franciscanus. The Impact Statement also finds that five other plant species which have been proposed for listing as "threatened species" under the Endangered Species Act are found in the Snow Bowl permit area; namely, Apocynum jonesii, Phacelia Serrata, Erigeron pringle, Pontentilla multi-foliolata, and Clematis hirsutis-sama var.~arizonica. In regard to these plant species the Final Environmental Impact Statement states: "A groundsel, Senecio franciscanus, and a buttercup, Ranunculus inameonus var. subaffinis, occur on the Mountain and have been proposed for listing as endangered plants under the Endangered Species Act of 1973. Forest Service Threatened and Endangered Plant Studies indicate that both of these species warrant listing as Federally threatened species. These plants will be given full consideration under the provisions of the Act. Section 7 of the Act indicates that all Federal departments and agencies will take such action to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered and threatened species or result in the destruction or modification of the critical habitat of such species. MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Three "Preliminary floristic investigations were undertaken by the Forest Service during the 1978 growing season in an effort to determine the extent which these plants may be affected by proposed activities and the amount of intensive survey required by the respective alternative. "Both species have been collected within the upper areas of the Snow Bowl permit area. The groundsel is primarily an alpine tundra species occurring above timberline on Agassiz and Humphreys Peaks. The Deaver Herbarium at Northern Arizona University has several specimens of this groundsel; one of which was collected at 11,500 feet near the upper terminal of the chairlift. It must be concluded that the range of this species extends into the area of proposed development. "The buttercup is primarily a timber-line species which occurs on the south and west slopes of Agassiz Peak. The Deaver Herbarium specimens were collected from 10,000 feet to 11,500 feet on Agassiz Peak. Several specimens have been collected well within the area of development. "Five plants which exist in the vicinity of Snow Bowl Road (Forest Service Road 516) have been proposed to be listed as threatened under the same Act. These are a dogbane, Apocynum jonesii, a phacelia, Phacelia serrata, a fleabane, Erigeron pringle, a cinquefoil, Potentilla multi-foliotta, and a leather flower, Clematis hirs"uitissma var. arizonica. These 5 plants will also be given full consideration under the Act." (Final Environmental Impact Statement, pp. 46-47, emphasis added hereafter cited as F.E.I.S.) MANGUM, WALL,STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Four The Forest Supervisor thus concedes that endangered and threatened plant species which the Forest Service believes should be protected under the Act and which have in fact been proposed for imminent listing and protection exist within the area of permitted development. The Forest Supervisor also concedes that these plant species will be subject to harm and destruction under the development authorized by the "Preferred Alternative." Recognizing that the San Francisco Peaks are "ecologically unique" and that the Alpine Tundra in which Senecio grows is "sensitive" and "ecologically fragile", the Impact Statement mentions more than once the damage to wildlife in the environs in which the "Preferred Alternative" is to be implemented. (F.E.I.S., pp. 36, 130, 160.) The Impact Statement admits that there will be "continued trampling of alpine tundra by hikers and summertime chairlift users", that changes in area vegetation will occur, that an increased potential for insect and disease activity exists as a result of clearing and slashing of the natural landscape, that increased erosion and the outright loss of vegetative cover will result because of ski run and road construction and summertime use connected with the operation of the lift facilities. (F.E.I.S., pp. 126, 130, 144, 146, 156, 158, 160, 215.) Documents within the Impact Statement likewise suggest that substantial damage will occur to plant life including that acknowledged by the Forest Service to be "endangered" or "threatened". A letter from Philip M. Smith of the Arizona Game and Fish Department states that "the Alpine Association is unique to Arizona and quite delicate. Even moderate use of this area could result in significant damage". (F.E.I.S., p. 228.) More importantly, the Regional Environmental Officer for the Department of Interior, the agency charged with implementing and enforcing the Endangered Species Act, stated in a letter to the Forest Supervisor that: "Seven plant species which have been proposed for listing as endangered plants under the Endangered Species Act of 197 3 could be affected by ski area expansion. Since the San Francisco Peaks are ecologically unique, any endangered species habitat that occurs on this 'island' must be considered especially critical and irreplaceable. Since the alternatives MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Five presented call for varying degrees of development, their effect on endangered species habitat should be taken into account during plan selection, not merely during implementation." (F.E.I.S., p. 223, emphasis added.) Notwithstanding these admissions and caveats about endangered and threatened species, the Forest Supervisor in his Final Environmental Impact Statement insists that "as far as how the Endangered Species Act would be implemented is very difficult to answer and is beyond the scope of this FES except to say that measures will be taken in accord with the Act if threatened or endangered species are found within an area to be developed." (F.E.I.S., p. 18 9.) The Impact Statement clearly shows that only preliminary and cursory studies have been done concerning species admitted to be endangered or threatened. (F.E.I.S., p. 46.) In addition, the Impact Statement does nothing more than state in vague and con-elusory terms that "measures to identify areas which contain endangered species will be determined" and that "a detailed study to determine the extent of habitat types and total numbers, and impacts of both developed and dispersed recreation upon flora, fauna, and insects endemic to the San Francisco Peaks" will be "initiated". (F.E.I.S., pp. 128, 146, 163.) In addition, the Forest Supervisor maintains in his Impact Statement that any problems which arise with respect to the endangered and threatened species "will be dealt with as encountered" and that such plants "will be given full consideration" under the Act. (F.E.I.S., p. 46.) The Forest Supervisor's version of "full consideration" is as follows: "The Forest Service finds that although individual plants may be destroyed during construction and maintenance activities, the species will not become extinct because of any alternative. The Forest Service will conduct a floristic survey in advance of actual construction activities and if individual plants are found, the Forest Service will try to avoid them. If they cannot be avoided and might be destroyed, they will be offered MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Six to qualified botanists for relocation or plant collection. The habitat for Ranunculus inameonus var. subaffinis may be enhanced because it requires open habitat and has been found growing in open areas created by previous ski area improvements. "The Forest Service will develop a recreational management plan for the alpine tundra. This action will enhance the habitat for the 2 species by controlling recreation hiking that currently damage habitat." (F.E.I.S., pp. 176-177.) The foregoing is sufficient to suggest that the Forest Supervisor has failed to comply with the requirements of the Endangered Species Act and that his adoption of the "Preferred Alternative" is illegal and contrary to law. Under 16 U.S.C. §1536 federal agencies are under an affirmative mandate to carry out the purposes of the Act since under that statute such federal agencies "shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency. . . does not jeopardize the continued existence of any endangered species or threatened species". The term, "conserve" is defined in 16 U.S.C. §1532 to mean "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Chapter are no longer necessary." In addition 16 U.S.C. 1531(5) (b) provides that the Act was intended to "Provide a means whereby the ecosystems upon which the endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered and threatened, species". The portions of the Act just cited do not limit the species subject to protection to those formally listed by the Secretary of Interior but refer to "any endangered species or threatened species". 16 U.S.C. §1532 in turn defines "endangered species" and "threatened species" without regard to formal listing by the Secretary: MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Seven "(14) The term 'endangered species * means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." * * * * * * * * * * "(15) The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." In addition, prior to the 1978 amendment of 16 U.S.C. §1536, that section required that federal agencies carry out "programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title" and take "such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species". (emphasis added.) By virtue of the 1978 amendment, the term "such" in the prior statute has become "any", thereby indicating a Congressional intention to change prior law so as to insure that federal agency action does not jeopardize the existence of any endangered or threatened species, regardless of whether or not it has been formally listed by the Secretary. For the purposes of the Act, no distinction as to the degree of protection to be afforded to "endangered species" and "threatened species", is made since both are entitled to equally rigorous protection under the Act with the only distinction between the two being a functional one. The Congressional mandate that federal agencies must use any and all methods necessary not only to avoid further damage to any endangered or threatened species but to improve (not destroy) their habitat is not only evidence from statement of policy contained in 16 U.S.C. §1531 but also from judicial decision under the Act. The following statements emphasize this view: MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Eight "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policy of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to •take' endangered species, meaning that no one is 'to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect' such life forms. [citation omitted] Agencies in particular are directed by §§2(c) and 3(2) of the Act to 'use all methods and procedures to preserve endangered species.' [citation omitted] In addition, the legislative history undergirding §7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over 'primary missions' of federal agencies." Tennessee Valley Authority v. Hill U.S. , 98 S.Ct. 2279, 57 L.Ed.2d 117, 140-141. "In holding that the appellees have 'adequately considered' the effects of the highway on the crane, the district court misconstrued the directive of §7 [of the Endangered Species Act]. As we have pointed out, §7 imposes on all federal agencies the mandatory obligation to insure that any action authorized, MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Nine funded, or carried out by them does not jeopardize the existence of an endangered species or destroy critical habitat of such species. [citation omitted] Although the FEIS and the administrative record indicate that the appellees have recognized and considered the danger the highway poses to the crane, they have failed to take the necessary steps 'to insure* that the highway will not jeopardize the crane or modify its habitat." National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir., 1976) . "It is clear from the face of the statute [the Endangered Species Act] that the Fish and Wildlife Service, as part of Interior, must do far more than merely avoid the elimination of protected species. It must bring these species back from the brink so that they may be removed from the protected class, and it must use all methods necessary to do so. The Service cannot limit its focus to what it considers the most important management tool available to it, i.e. habitat control, to accomplish this end." Defenders of Wildlife v. Andrus, 428 F.Supp. 167, 170 (D.D.C., 1977) In the present matter two endangered species and five threatened species exist within the permit area and along the course of the proposed road expansion. The Forest Service has conceded that at least two plants found in the permit area should be classified as "threatened species", and the best available information is that all such plant species will soon be formally listed by the Secretary of the Interior. MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Ten Nevertheless, the Forest Supervisor has adopted an alternative which he concedes will damage and harm such species as construction of the slopes and lifts occurs notwithstanding the fact that the Regional Office of the Secretary of the Interior has told the Supervisor, in effect, that the permit area is the critical habitat of such species. The flat concession that implementation of the "Preferred Alternative" will further endanger the species which the Forest Supervisor himself admits should at least be considered as "threatened" under the Act is tantamount to an admission that the Act has been violated. As the authorities cited above make clear, any action which damages such species and which falls short of bringing them back from the brink of danger and threat violates the Act. Accordingly, when the Forest Supervisor states in his Impact Statement that the "Preferred Alternative" will not directly cause the extinction of any endangered or threatened species, he has misconceived his legal duty. Avoiding extinction is not sufficient compliance with the Act nor, for that matter, are vague and conclusory statements to the effect that during implementation of development further harm to endangered and threatened species will be avoided. By mandating that federal agencies shall conserve endangered and threatened species, Congress has required the Forest Supervisor to use all methods necessary to increase their population and bring them back from the brink of danger and threat. See Defenders of Wildlife v. Andrus, supra. In addition, Section 7 of the Endangered Species Act requires all federal agencies in consultation with the Secretary of the Interior to conserve endangered species. Subsection (c) of Section 7 as amended in 1978 provides that: "(c) BIOLOGICAL ASSESSMENT. —To facilitate compliance with the requirements of subsection (a), each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered Species Act Amendments of 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Eleven present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purposes of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated (or within such other period as mutually agreed to by the Secretary and such agency) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of the Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332)." Subsection (d) of the 1978 amendment to the Endangered Species Act additionally provides that: "(d) LIMITATION ON COMMITMENT OF RESOURCES—After inition of consultation required under subsection (a), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or* implementation of any reasonable and prudent alternative measures which would avoid jeopardizing the continued existence of any endangered or threatened species or adversely modifying or destroying the critical habitat of any such species." MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Twelve The Forest Supervisor's Impact Statement provides ample evidence that both of the foregoing sections of the Act have been violated. The Impact Statement simply states that "measures to identify areas which contain certain endangered or threatened species will be taken" and that a detailed study to determine the extent of habitat types and total numbers" will be "initiated". (F.E.I.S., pp. 128, 144, 163.) Clearly no biological assessment was done prior to the agency's action here. Moreover, the authorization for further development is clearly a commitment of resources which is irreversible and irretrievable in nature and which was done so as to foreclose the formulation or implementation of any reasonable alternative measures which would avoid jeopardizing the continued existence of endangered or threatened species. Finally, the Wilsons submit that implementation of the proposed expansion of skiing and recreational facilities at the Arizona Snow Bowl prior to a formal listing of the plant species proposed for listing would frustrate the purposes of the act which is to prohibit the taking or damaging of plant species which are in fact considered to be endangered and to bring such species back from the point of danger or extinction. Such a purpose, the Wilsons submit, cannot and should not be frustrated by the actions of one federal executive department, such as the United States Forest Service, Department of the Agriculture here, when the executive department charged with administering and implementing the Endangered Species Act has been prevented by administrative burdens and the sheer size of the task involved in identifying and listing endangered and threatened species in a nation as large as ours from formally listing all such plant and animal species. Implementation of the recommended expansion of skiing and recreational at the Arizona Snow Bowl has been stayed pending disposition of appeals by the Regional Forester in Albuquerque, New Mexico. Such disposition is estimated to occur by mid-June of this year, but there is no guarantee that further stays would be granted in the event of a decision by the Regional Forest adverse to the position of the Wilsons. The Wilsons, therefore, respectfully submit that the taking of admittedly endangered or threatened species is imminent as are further palpable violations of the Act such that an emergency exists as to said species. The Wilsons therefore request that you as Secretary of the Interior take such action as is necessary and authorized under the provisions of the Endangered Species Act to enjoin or otherwise remedy the MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Thirteen violations of the Act by the Forest Supervisor as hereinabove set forth. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Robert W. Warden RWW/dd cc: Patricia Sanderson Post Regional Environmental Officer United States Department of the Interior Pacific Southwest Region Box 36098 450 Golden Gate Avenue San Francisco, California 94102 Mr. M. J. Hassel Regional Forester Southwestern Region 517 Gold Avenue, S.W. Albuquerque, New Mexico Michael A. .Kerrick Forest Supervisor 2323 East Greenlaw Lane Flagstaff, Arizona 86001 Dr. and Mrs. Richard F. Wilson 7445 North Northern Avenue Tucson, Arizona 8 5704 Dr. Richard F. Wilson 7445 North Northern Avenue Tucson, AZ 85704 Dear Dick and Jean: Enclosed are copies of work being currently done by John Hodges, the attorney in Washington, D.C. Just wanted to keep you abreast of what is being done. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Douglas J. Wall DJW:sd-l E n c l . Robert W. Warden, Esq. Douglas J. Wall, Esq. Mangum, Wall, Stoops & Warden 222 East Birch Avenue P. 0. Box 10 Flagstaff, Arizona 66002 Dear Bob and Doug: Pursuant to our last telephone coversation, I have prepared and am enclosing two short memoranda that may be of some interest to you. One deals with the duty to preserve sacred sites under the American Indian Religious Freedom Act. The other deals with the extent to which an agency's discretion is restricted by the Act. As I mentioned, I will be in Hawaii for the first part of the week of May 7. However, should you need to be in touch with me, I will be at the Outrigger Hotel in Honolulu, or you can leave a message with my secretary, Kathy Marlowe, at my office in Washington. Best regards. Enclosures cc: Robert A. Warden, Esq. MEMORANDUM OF LAW ON PRESERVATION OF RELIGIOUS SITES UNDER THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT On February 27, 197 9, Michael Kerrick, Supervisor of the Coconino National Forest, issued a decision to allow additional development of the Arizona Snowbowl and improvement of the Snowbowl Road. In that decision and in his Responsive Statement to consolidated requests for administrative review of the decision the Forest Supervisor, inter alia, indicates that despite the proposed desecration of the sacred San Francisco Peaks and consequent harm to Indian religion, the decision complies with the American Indian Religious Freedom Act (Public Law 95-341) because the Park Service will not deny access to religious sites there and will allow religious ceremonies at such sites. This decision evidences a profound misunderstanding of the thrust of'the Act. As discussed below, the Act contemplates preservation of sites as well as access to them. On December 15, 1977 Senate Joint Resolution 102 was introduced by Senator Abourezk on behalf of himself and Senators Humphrey, Kennedy, Inouye, Matsunaga, Hatfield, Stevens, Gravel and Goldwater. The Resolution declared that: "henceforth, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian ... including, - 2 - but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." The Act as finally passed was practically identical to the bill as introduced. It has been clear from the time S. J. Res 102 was introduced that the Act was intended to protect religious sites: 1. At the Senate hearings on S. J. Res. 102 held on February 24 and 27, 1978, Senator Inouye, one of its sponsors, stated the concern for protecting sacred sites: "Of particular concern is the fact that sites located on restricted areas are often frequently neglected by the landowners and, left forgotten, slowly deteriorate. In many areas the historical and religious significance of these ancient sites has been ignored. Land development which destroys or unrecognizably alters these sacred areas continues. As Mr. Gard Kealoha, Information Officer for Alu Like, a Native Hawaiian Service Organization comments: 'It is sad to note that when one compares historical site listings of the State with Trum's Hawaiian Almanac and Annual from 1907 there are glaring discrepancies. The Thrum's book gives a much better description of the sites identified then but there are many placed in Thrum's Annual that are omitted in the State Registry. Obviously these sites have either been destroyed or lost through development.... It is an appalling situation.' Mr. Kealoha is quite correct, this is indeed an appalling situation. The Native Hawaiian has already lost so much, his kingdom, his language, his culture, the full sense of his Hawaiianness. It is almost criminal to discover how little is left by which he can attain an affiliation with the spirituality of his past." (Emphasis added.) Hearings on H.J. Res. 102 before the Senate Select Committee on Indian Affairs, 95th Congress, 2d Sess. [hereinafter "Hearings"] 11-12 (1978). - 3 - 2. Senator Abourezk placed into the record a letter to Senator Matsunaga from George Ariyoshi, Governor of Hawaii, indicating the nexus between preservation of sites and access to them: "throughout the islands, native religious sites have been and are in the process of being restored, a prideful concern to all the citizens of Hawaii. I do acknowledge, however, that there are more sites for which access may not be available." (Emphasis added.) (Hearings, 39.) 3. Senator Abourezk also placed into the record a letter from Eduardo E. Malapit, Mayor, County of Kauai, Hawaii, stressing the need to avoid destruction of sites and supporting S. J. Res. 102: "The confrontations between the military and the Kahoolawe Ohana involves the Ohana's concern for desecration of the Aina rather than any overt effort by the military to deny them access to any particular religious site. However, the motivating force behind the Ohana is religious in nature. Another concern of mine is the loss of ancient religious sites due to new developments. Like other counties of Hawaii, Kauai is undergoing development and this growth may infringe upon these sites. There have been instances in the past where this has happened. Once these religious sites are destroyed, they are lost forever. If preserved, these sites could be used to perpetuate and rebuild the Hawaiian's relationship with their past. The passage of S. J. Resolution 102 will bring about a reassessment of our commitment to support the well-being of our Native Hawaiians and all other Native Americans." (Hearings, 40.) 4 - 4. Senator Abourezk specifically stated that protection of sites is included in the ambit of S. J. Res. 102. He stated: "A section of this Resolution says it provides the freedom of worship for ceremonials and traditional rites. By having that sort of thing incorporated, you cannot deface religious objects and so on, and religious sites, while it does not specifically state it, it would by implication enforce that. It specifically includes cemeteries for access in religious rites like burials. You cannot have access if the cemetery is not protected." (Emphasis added.) (Hearings, 83-84.) 5. Senator Abourezk placed into the record a statement from George Elk Shoulder, Sr., President, Native Ways of Worship, Inc., Headsman, Dog Shoulder Society, Ashland, Montana, and Joe Little Coyote, Sr., Chief, Northern Bank of Cheyenne, Vice President, Native Ways of Worship, Inc., Ashland, Montana, supporting S. J. Res. 102. In particular, the statement pointed out that Bear Butte, near Sturgis, South Dakota, is a religious mountain for the Cheyenne. They stated concern about the future of the mountain, in particular, that "[s]ome of the concerns that we have is possible defacement of the mountain for developmental purposes which will ruin its natural setting." (Hearings, 98.) 6. Elmer Savilla, of the Quechan Tribe, Chairman of the National Indian Coalition and Executive Director of the Intertribal Council, supported S. J. Res. 102 and pointed out that "the Indians of the West Coast — California specifically — are aroused and angry at the wanton destruction and - 5 - desecration which has occurred and is still occurring today. It is necessary for some timely action to be taken by the Congress in order to prevent serious confrontation between Indian groups and commercial developers." (Emphasis added.) (Hearings, 117-118.) 7. Steven Rios, Executive Secretary, Native American Heritage Commission, supported S. J. Res. 102 and indicated with respect to one sacred site that "we are trying to do two things. We are trying to preserve the sacred site and, second, we are trying to gain access to the site." (Hearings, 193.) Mr. Rios noted that Governor Edmund G. Brown, Jr., of California supported S. J. Res. 102. (Hearings, 195.) 8. Senator Abourezk placed into the record a draft telegram from Governor Edmund G. Brown, Jr., of California to Senators Cranston and Hayakawa urging them to support the S. J. Res. 102. Governor Brown indicated that S. J. Res. 102 would "reaffirm the fact that American Indians have a constitutional right to the free excercise of their traditional religious practices." Significant in that regard is that Governor Brown interpreted "the free exercise of the American Indian of their traditional religious practices" to include both "assuring access to sacred sites and preventing public and private parties from causing irreparable damage to them." (Hearings, 196.) 9. Senator Abourezk placed into the record a document from the Native Americans Heritage Commission stating, inter alia, as follows: - 6 - "I. Problem Virtually all religious sects or groups possess 'places' of special significance in their religion. These 'places' may exist as churches, or structures used for worship, or worship-related activities. As Indians of Native California tribes, our religious beliefs are as sacred to us as any possessed by the non-Indian society. One of the basic differences between our cultures has been and continues to be our choice of areas where we go to renew our spiritual understanding. Our ancestors chose certain outdoor places where the life-giving spirits of the earth were strongest and easiest to reach. Everyone must realize and respect the fact that the Mother Earth was and still remains sacred to Indian people. We have found that many of our sacred traditional grounds have been destroyed or fenced off leaving us without access to those 'places' that are sacred to us. American Indians have many needs, but without our spiritual heritage and freedom, almost everything is lost. II. What is an American Indian Cultural Site? Any mound, midden, cave, building, structure, burial grounds, rock art, ceremonial grounds, doctoring site, medicinal or training site, or any area identified in Native California Indian oral traditions or teachings to be of religious or social significance. * * * V. Function of Native American Heritage Commission The specific powers and duties of the Native American Heritage Commission include: 1. Making recommendations to the Legislature about the protection of significant Indian religious and social sites (for example, ceremonial Roundhouses, ceremonial dance sites, burial grounds, sacred hot springs, etc.). 2. Ensuring access for Native American Indians to significant religious and social sites. (Example: Coso Sacred Hot Springs, traditional gathering areas, medicine training areas.) - 7 - 3. Making recommendations to the Department of Parks and Recreation and to the California Arts Council about Indian-related matters. 4. Assisting state agencies in negotiations with federal agencies for the protection of sacred sites located on federal land. 5. If necessary, bringing legal action to prevent severe or irreparable damage to sacred sites or ceremonial places located on public land." (Hearings, 198-199.) 10. Senator Abourezk placed into the record a statement by Reverend Caleb Holetstawa Johnson, Personal Representative of the Hopi Traditional Kikmongwis, who supported S. J. Res. 102 and specifically stated that "we do have a problem in protecting the San Francisco Peaks near Flagstaff, Arizona. These peaks are sacred mountains to the Navajos and Traditional Hopis and the city of Flagstaff want to develop a snowbowl so non-Indians can ski there. We are opposed to this because the Hopi gods live there." (Hearings, 242.) LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D.C. aoo38 TWELFTH FLOOR CONNECTICUT BUILDING I ISO CONNECTICUT AVENUE, N.W. TELEPHONE (202) 457-1000 CABLE AD0RESS:"EXCELSIOR» TELEX: 697413 March 26, 1981 HAND DELIVERY Patricia L. Beneke, Esq. General Litigation Section Lands and Natural Resources Division United States Department of Justice Washington, D.C. 20530 Re: Arizona Snow Bowl Litigation, Civil Action Nos. 81-0481, 81-0493 and 81-0558 (United States District Court for the District of Columbia) Dear Ms. Beneke: On behalf of all plaintiffs, we are writing to follow up on our several telephone calls to the Justice Department since the hearing before Judge Richey last week. This letter serves three objectives: first, to review our respective mandates from Judge Richey; second, to indicate the steps each side has taken since the hearing to comply with Judge Richey's directives; and third, to commit to writing several practical proposals we have already discussed with you by telephone concerning the manner in which we might proceed from this juncture. The March 18 Hearing Based on our review of the transcript of last week's hearing, we believe that Judge Richey asked the parties to undertake three discrete assignments. First, the Court asked all parties to complete a standard-form Trial Certification Sheet. The plaintiffs are required to return their copies by Monday, March 30, and the defendants are required to return the form by April 8. (Transcript, pp. 25-26.V) 357 All page references in this letter are to the pages of the official transcript of the March 18 hearing. PEABODY, RIVLIN, LAMBERT & MEYERS * PROFESSIONAL CORPORATION Patricia L. Beneke , Esq. March 26, 1981 Page Two Second, the Court required the plaintiffs to supplement their March 30 submission by including an explication of their constitutional and statutory religious freedom claims. (Pp. 32-33.) And third, in response to a question you posed concerning the procedural status of the pending motions for preliminary injunction, the Court urged the parties to facilitate disposition of the cases on the merits by conducting meetings for the purpose of arriving at factual stipulations and procedural agreements. (Pp. 31-32.) We quote from the transcript: MS. BENEKE: Your Honor, I guess I would request some clarification as to this preliminary injunction status of the preliminary injunction motions on the part of both the Hopi Indians and Navajo Medicine Men Association, given the fact that this is a consolidated case. THE COURT: I think that is a good question and I think you ought to discuss it with counsel first and then if you wish to take it up with the Court I will be glad to hear from you. . . . As experienced counsel know in my court, I lock the lawyers in my jury room if they do not come in with a stipulated set of material facts which are not in dispute. Lawyers just do that because they do not talk to each other. They think it is a sign of weakness or confession of weakness when they talk to each other so they avoid it until the Court makes them do so. This is really true. I know it. I have been around for 32 years now, and I guess I am too old to know otherwise. . . . In any event, it facilitates the disposition of litigation. I have had many lawyers tell me that that has been a good thing although a painful thing. And then you have only a hearing on, if you cannot agree on everything, a very mini basis. Then you have a final appeal, it gets off the docket, the administrative office never calls me, my chief judge never calls me, and it •PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke, Esq. March 26, 1981 Page Three does not stay on my docket for ten years while you go through the slow appellate process. So that is the way it is going to be done" [Pp. 30^ 31^ 32-emphasis added.] Judge Richey contemplated at least these procedural steps: (1) an early meeting of counsel designed to narrow and simplify the issues to be presented to the Court for ultimate resolution, (2) a good-faith effort to prepare written stipulations of fact designed to serve the same purpose, and (3) an effort by the parties to hasten final adjudication on the merits, presumably by putting the case in a posture suitable for resolution by cross-motions for summary judgment.V Compliance with Judge Richey's Directives On Tuesday, March 24, principal counsel for all plaintiffs convened an all-day meeting. Their purpose was to examine the administrative record to determine whether it required supplementation through live testimony or additional evidence. Copies of the Court's Trial Certification Sheet were distributed at that meeting. Counsel also considered the status of the preliminary injunction motions. Acting on Judge Richey's explicit command to "discuss it with [opposing] counsel first" (p. 31), the participants at the meeting asked Washington counsel to contact your office for the purpose of arranging a meeting at the Justice Department. Lawrence White of this office V With respect to the latter point, Judge Richey engaged in this colloquy with Charles Work, counsel for the plaintiffs THE COURT: Can you tell me in your professional opinion that it looks like [these cases] will go off on summary judgment? MR. WORK: I think so, Your Honor. This is a paper case. [P. 21.] PEABODY, RlVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke , Esq. March 26, 1981 Page Four finally spoke to you by telephone on March 24.^/ During your conversation with Mr. White, you indicated that, for administrative reasons, a meeting could not be scheduled until after the appointment of a senior attorney to replace Susan Hiatt on these cases. The plaintiffs have made a concerted effort to refine their cases, to think carefully about the evidence necessary to a decision, to come up with procedural suggestions and alternatives (described in more detail below), and to comply in all other respects with the Court's directive to "facilitate [] the disposition of [this] litigation" (p. 32). The plaintiffs are firmly convinced that a meeting with you at the Justice Department is a logical and necessary next step. A Proposed Course of Action We believe that the following proposal is in the best interest of all parties and is consistent with Judge Richey's instructions at the March 18 hearing. (1) We should schedule a meeting of all counsel at the Justice Department as soon as possible, but no later than the week of March 30. The meeting should be designed to achieve two goals. It should provide you with an opportunity to seek any clarification you need concerning the plaintiffs' claims under the First Amendment and the American Indian Religious Freedom Act. And it should start the process of formulating a comprehensive stipulation of material undisputed facts. v We were initially informed that Susan Hiatt was the principal Justice Department attorney on these cases. Ms. Hiatt was in Puerto Rico during the week of the hearing, and did not return to her office until Monday, March 23. Not until we contacted Ms. Hiatt on Tuesday afternoon, March 24, were we informed that she was no longer active in the case and that our inquiries should be addressed to you. - ' PEABODY, RlVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke, Esq. March 26, 1981 Page Five (2) We should agree on a timetable for submitting the entire case for resolution on the merits, and we should submit the timetable to Judge Richey for his approval. The timetable should include, at a minimum: A period for negotiating and preparing stipulations; A brief period for expedited discovery, should any discovery be necessary; — A date for submitting a bound "record" (analogous to the joint appendix in an appellate case) containing those portions of the administrative record deemed necessary by all parties for resolution of the cases; and — A schedule for the preparation of summary judgment motions and oppositions, or, if necessary, for an abbreviated hearing on the merits. (3) We believe that a determination on the merits can probably be reached by the District Court by early summer. We would seek assurances that the Agriculture Department would not authorize any construction until the case is decided on the merits — assurances that should not be difficult to provide under the circumstances. (4) To hasten a final determination on the merits, the plaintiffs would withdraw pending motions for preliminary injunction. This should simplify the procedural posture of the cases, in line with Judge Richey's explicit command to that effect. We cannot go any further without sitting down together — and, indeed, we have been ordered to do so by Judge Richey. We sincerely believe that a mutual effort to expedite final resolution on the merits is the most reasonable course of action. We ask you, at your earliest convenience, to telephone us so that we can arrange a meeting and resolve some of the substantive and procedural issues set forth in this letter and in the transcript of last week's hearing. Sincerely, Robert A. Warden RAW/LW/slb ENOICOTT PEABOOY LEWIS A. RIVLIN JEREMIAH D. LAMBERT TEOSON J. MEYERS CHARLES T. DUNCAN OAVIO J.TAYLOR MICHAEL W. FABER JOHN R. FERGUSON TIMOTHY J. WATERS JOHN T. SCHELL PETER B. ARCHIE CHARLES R. WORK JOHN A. HODGES ROBERT H. MORSE ROBERT A. WARDEN ROBERT N.JENSEN COLLISTER JOHNSON, JR. JOHN LOCKIE ROBERT P. VISSER TIMOTHY L. HARKER NATHALIE P. GILFOYLE RONALD J. DOLAN LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D.C. aoooa TWELFTH noon CONNECTICUT BUILDING IISO CONNECTICUT AVENUE, N.W. TELEPHONE 1202) .457-1000 CABLE ADDHtSS -EXCELSIOR" TELEX: 897413 fc'ik APR 1 3 19.81 April 8, 1981 WRITER'S DIRECT OIAL NUMCCR 457-1016 The Hon. Charles R. Richey United States District Judge United States.Courthouse Washington, D.C. 20001 Re: Hopi Indian Tribe v. Block, et al., Civil Action Nos. 81-0481, 81-0493 and 81-0558 Dear Judge Richey: I write on behalf of all plaintiffs in these consolidated cases. Pursuant to the suggestion made by the Court at the March 18 hearing, counsel for all parties held a fruitful meeting at the Justice Department on April 2. The purpose of the meeting was, first, to elucidate for government counsel the plaintiffs' religious freedom claims under the First Amendment and the American Indian Religious Freedom Act; second, to discuss the testimony of potential witnesses identified in the plaintiffs' Trial Certification Sheets; and, third, to explore the possibility of preparing and submitting joint stipulations of material facts to expedite final resolution of these cases on the merits. The latter two subjects are closely related. The number of plaintiffs' witnesses and the subject-matter of their testimony (if any) will depend on the degree to which the parties can stipulate to factual issues. If the parties are successful in agreeing to comprehensive stipulations, then most (perhaps all) of the plaintiffs' potential witnesses will not have to testify. Government counsel asked us to prepare a first draft of factual stipulations, and we have obliged. Copies of our draft were hand-delivered to all government counsel today, and a copy is attached hereto for the Court's review. PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION The Hon. Charles R. Richey April 8, 1981 Page Two As we indicated at the March 18 hearing and in our Supplemental Memorandum of March 30, we respectfully suggest that the most appropriate way of proceeding is to put these cases in a posture so that they can be adjudicated on the merits in relatively short order. This should not be a difficult or time-consuming case if the parties are willing to have the Court rule on cross-motions for summary judgment after the preparation of suitable stipulations of fact and legal briefs. An expedited proceeding would also save the parties and the Court the time and trouble of arguing the pending motions for preliminary injunction. We are prepared to move forward on this expedited timetable, and our proposed stipulations are submitted in that spirit. We add, for the sake of clarity, that at this time government counsel have neither accepted nor rejected our proposal for expedited adjudication on the merits in this Court. Sincerely yours, cc: All Counsel of Record Jose Uranga, Esquire Patricia Beneke, Esquire General Litigation Section Lands & Natural Resources Division United States Department of Justice Washington, D.C. 20530 Re: Arizona Snow Bowl Litigation, Civil Action Nos. 81-0481, 81-0493 and 81-0558 (United States District Court for the District of Columbia) Dear Jose and Patricia: On behalf of all plaintiffs, we want to express our appreciation to you and Wendy John for meeting with us on April 2. The meeting was helpful and productive. One of the subjects we discussed at our meeting was the potential usefulness of stipulated facts. (It was Judge Richey who raised the subject initially by suggesting at the March 18 hearing that stipulations have proven useful in other cases.) You suggested that we provide some draft stipulations, and we enclose our first draft with this letter. These proposed stipulations are submitted for use solely in these consolidated cases or other proceedings concerning the significance of the San Francisco Peaks to the Hopis or the Navajos. • PRASODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esquire Patricia Beneke, Esquire April 8, 1981 Page Two We emphasize that these are drafts, and not final products; we would be pleased either to receive your suggestions and comments or to meet with you at your convenience to formulate stipulations satisfactory to all parties. One of these proposed stipulations (the one identified by the heading "Commencement of Construction") memorializes the representation you made at our meeting: any construction in the permit area will not commence until June 1 at the earliest, and the Forest Service has not yet issued the required.final approval.1/ If we can arrive at some understanding with respect to the Forest Service's schedule for issuing final construction permits, then the plaintiffs will not press their applications for preliminary injunctive relief at this time. If, however, we are not assured that the Forest Service will refrain from authorizing construction until the Court can resolve these cases on the merits, then the plaintiffs intend to pursue their motions for preliminary injunction. The other proposed stipulations are based on documentary and testimonial evidence submitted during administrative proceedings before the Forest Service. We would be happy to provide you with record citations for any or all of the proposed stipulations, should you desire them now or in the future.2/ 1/ We also appreciate your willingness to notify us when the Forest Service issues these final approvals. 2/ We have not done so in the attached document for two reasons: first, because we did not have access to the administrative record while all counsel were in Washington for last week's meeting, and, second, because you indicated at that meeting that record cites were unnecessary at this juncture. - PEA'BODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esquire Patricia Beneke, Esquire April 8, 1981 Page Three Once again, we thank you for meeting with us. We look forward to your comments on our proposed stipulations. Charles R. Work cc (with enclosures): Hon. Charles R. Richey United States District Judge Wendy M. John Office of the General Counsel United States Department of Agriculture LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D. C. 2 0 0 3 9 TWELFTH FLOOR CONNECTICUT BUILDING 1150 CONNECTICUT AVENUE, N.W. TELEPHONE (202) 4 5 7 - 1 0 00 CABLE AO0RESS:"EXCELSIOR" TELEX: 897413 June 19, 1981 Jose Uranga, Esq. United States Department of Justice General Litigation Section Lands & Natural Resources Division Room 1712 Pennsylvania Avenue & 10th Street, N.W. Washington, D.C. 20530 Re: Hopi Indian Tribe v. Block, Civil Actions No. 81-0481, 81-0493 and 81-0558 Dear Jose: I write this letter on behalf of all plaintiffs in these consolidated actions. We have reviewed Judge Richey's June 12 order and June 15 memorandum opinion. Our purpose in writing is, first, to provide you with our views on the procedure that must be observed in connection with Judge Richey's order remanding the National Historic Preservation Act counts to the Department of Agriculture for further proceedings; and, second, to make procedural requests of the Forest Service in connection with those proceedings. Judge Richey found two separate violations of the Act. 1/ First, with respect to two properties already 1/ We use the term "Act" in this letter to refer collectively, in context, to the National Historic Preservation Act, 16 U.S.C. § 470, et seq.; Executive Order 11593; and the implementing regulations, 36 C.F.R. Parts 800, 1201, 1202 and 1204. PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Two (.2) listed in the National Register (the C. Hart Merriam Base Camp and the Fern Mountain Ranch), the Court held that the defendants failed to comply with the regulations by making a "no effect" determination without consulting first with the State Historic Preservation Officer ("SHPO") and observing the other procedural requirements in 36 C.F.R. Part 800. And second, the Court ruled that the defendants erred in concluding that the San Francisco Peaks were not eligible for inclusion in the National Register. As a result of these violations, the Court remanded the matter to the Forest Service "for full compliance with NHPA and the applicable regulations." (Mem. Op., p. 30.) Each of the Court's rulings under the Act will require the Forest Service on remand to satisfy specific regulatory requirements. Sites Already Listed in the National Register With respect to the C. Hart Merriam Base Camp and the Fern Mountain Ranch, 36 C.F.R. §§ 800.4 and 800.6 establish the procedure for determining what effect, if any, the Forest Service permits in these cases will have on the historical, architectural, archaeological or cultural characteristics of the properties. The procedure includes at least the following steps. First, the Forest Service, in consultation with the SHPO, must apply the "Criteria of Effect" specified in section 800.3(a) of the regulations. (§ 800.4(b).) Second, if the Forest Service determines that the issuance of permits will not affect the listed properties, it must document that determination and make its written findings available to the public for inspection and comment. (§ 800.4(b)(1).) Third, the Forest Service's written findings — including "written evidence of the views of the State Historic Preservation Officer" — must be forwarded to the Executive Director of the Advisory Council on Historic Preservation. (§ 800.4(c).) The Executive Director must then review the determination. (§ 800.6(a).) The regulations specifically provide for comment from any interested PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Three (.3) party (§ 800.4(b) (1)), and authorize the Executive Director to consult with interested parties during review of the agency's determination (§ 800.6(a)(2)). The Executive Director, in consultation with the Forest Service and the SHPO, is required to "consider feasible and prudent alternatives ... that could avoid, mitigate, or minimize adverse effects ..." (§ 800.6(b)), and may hold public information meetings to receive views from any interested citizen (§ 800.6(b) (3)) . And fourth, the regulations explicitly preclude the Forest Service from issuing any permit until the Advisory Council completes its review. (§ 800.4(e).) In this case, moreover, no permit could issue until the Forest Service were to present evidence of full compliance to the Court and Judge Richey were to lift the stay on further activity. (Mem. Op., p. 3 5.) Pursuant to the provisions of 36 C.F.R. § 800.15- (a), request is hereby made for (a) all documents, materials, and data concerning the potential effect of the undertaking on National Register and other eligible properties, and (b) notice of all public information meetings related to the review process. The Wilsons, as owners of one of the National Register properties in the area and property owners on the Peaks, and the other plaintiffs request a public information meeting in order to have an opportunity to present evidence pursuant to the provisions of 36 C.F.R. § 800.15(b) concerning the effects of the proposed undertaking and consideration of proposed alternatives to the project. In addition to notice of all steps taken in connection with the review process, the plaintiffs also request prompt notification of determination of effect and copies of the documentation upon which any such determination is based. We fully expect the Forest Service to comply in every respect with all procedural requirements, and as interested parties we intend to participate fully during this process. Status of the San Francisco Peaks as a Site Eligible for Inclusion in the National Register Judge Richey also held that the Forest Service failed to meet its duties under the Act concerning the PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Four (4.) eligibility of the San Francisco Peaks for inclusion in the National Register and that further administrative proceedings are necessary to determine whether the Peaks should in fact be listed. (Mem. Op., p. 30.) (This duty includes, of course, the duty to determine whether any portion of the Peaks, or sites thereon, should be listed.) Those proceedings must include, at a minimum, the following steps. Consultation and Inventory: First, the Forest Service must consult with the SHPO and "other individuals or organizations with historical and cuicural expertise" to assess on a preliminary basis what historical and cultural properties are known to be within the area. (§ 800.4(a)- (1).) In view of the large area encompassed by the Peaks and the fact that, to the best of our knowledge, no survey of this enormous area has ever been conducted in the past, we believe that the Forest Service must commission a comprehensive survey as part of its preliminary assessment. The Forest Service has a duty under the Act to locate all properties eligible for inclusion in the National Register. Section 106 of the National Historic Preservation Act (16 U.S.C. § 470f) requires that federal agencies take into account the effect of an undertaking "on any district, site, building, structure, or object that is included in or eligible for inclusion in" the National Register. (Emphasis added.) The legislative history of this provision is discussed at length in WATCH (Waterbury Action to Conserve Our Heritage), Inc. v. Harris, 603 F.2d 310, 321-22 (2d Cir.), cert, denied, 100 S.Ct. 530 (1979). The legislative history makes clear that the obligations under Section 106 extend to identifying any properties that appear to qualify for inclusion in the National Register. These obligations were described in detail in Executive Order 11593, 36 Fed. Reg. 8921 (.1971) (reprinted in 16 U.S.C.A. § 470, at 28). Section 2 of the Executive Order imposes specific responsibilities on federal agencies to carry out this policy. Among these responsibilities are two broadly-phrased and far-reaching mandates: (1) In cooperation with the liaison officer for the State or territory involved, the agency head is required by no later than July 1, 1973, "to locate, inventory and nominate to the Secretary of the Interior all sites, buildings, districts and objects under the agency's jurisdiction PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Five (5) or control that appear to qualify for listing on the National Register of Historic Places." (§ 2(a) (emphasis added).) (2) The agency is also required to "exercise caution" during the interim period pending completion of the inventory nomination process to assure that "any" federally-owned property that might qualify for nomination is not inadvertently demolished or substantially altered. (§ 2(b).) Federal regulations issued pursuant to the Act and Executive Order 11593 reaffirm the requirement to conduct searches for all potentially eligible sites. 36 C.F.R. Part 800 (1979). Under these regulations, federal agencies are required to "identify or cause to be identified any National Register or eligible property that is located within the area of the undertaking's potential environmental impact and that may be affected by the undertaking" (§ 800.4(a)) (emphasis added), and, in consultation with the SHPO, apply the "National Register Criteria" to "all" valuable properties located within the area of the undertaking's potential environmental impact (§ 800.4(a)(3)) (emphasis added). An effort to locate sites under the Act will not be deemed reasonable unless the agency "conduct[s] the appropriate studies" and provides the information necessary both "for an adequate review" of the effect of the proposed undertaking on a National Register or eligible property and for adequate consideration of modifications or alterations to the undertaking that can avoid, mitigate or minimize any adverse effects. Id. (See Carlos Romero-Barcelo v. Brown, No. 79- 1626 (1st Cir. Jan. 26, 1981): "Thus, the first step in satisfying an agency's obligations under the Executive Order and the regulations is to locate, in consultation with the state's officer for historic preservation, "all1 and 'any' sites that may be eligible for inclusion in the National Register.") In Aluli v. Brown, 437 F. Supp. 602 (D. Haw. 1977), reversed in part on other grounds, 602 F.2d 876 (9th Cir. 1979), the court dealt with the Navy's obligations to locate sites in the island of Kahoolawe in Hawaii. Beginning in 1976 and throughout 1977, two archaeological teams working five days a month surveyed 34 percent of the island and 90 percent of the naval target zone. Almost 100 archaeological sites had been discovered up to that time, over 30 of them on Navy property. Thereafter in 1977, the PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Six (6) District Court in Aluli ordered the Navy to "comply forthwith" with the applicable provisions of law, "including but not limited to the continued full cooperation with the Hawaii Office of Historic Preservation in identifying, inventorying and protecting historic sites in Kahoolawe...." (437 F. Supp. at 612.) Determination of Eligibility: If a question exists as to whether the property satisfies the National Register criteria spelled out in Section 1202.6 of the regulations — and such a question certainly exists here, since the Court specifically cited and quoted from that regulation in the memorandum opinion — then the matter must be referred to the Department of the Interior for a "determination of eligibility" under Part 1204 of the regulations. (§ 800.4(a)(3).) Consultation with Advisory Council and the Public: The Forest Service must request comments and evaluation from the Advisory Council on Historic Preservation. (§ 800.4- (a) (4).) This procedure contemplates input from and participation by interested members of the public, as described in the preceding portion of this letter. As Judge Richey stated in his decision, the Forest Ser
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Rating | |
Call number | nm073g000s001b003f0030 |
Item number | 27373all |
Creator | Wilson, Richard P. |
Title | Legal memorandas, 1978-1983. |
Alternate title | old |
Date | 1978-1983 |
Type | Text |
Description | Documents, letters and newspaper clippings on the expansion of the Snow Bowl. Materials from task force and meetings concerning the American Indian Religious Freedom Act, legal summaries of the Hopi v. Block and Snow Bowl litigation civil case, the listing of Senecio franciscanus as an endangered species, and how the expansion violates the Endangered Species Act. Newspaper articles reprinted with permission from the Arizona Daily Sun. NOTE: The "Save the Peaks" fight was a decade-long struggle, originally pitting local citizens against Summit Properties and its parent corporation, the Post Company. The object of the controversy was a 350 acre parcel of land in the Hart Prairie area of the San Francisco Peaks. In the early 1970's, local Flagstaff citizens united to prevent the company's proposed development of the Hart Prairie acreage. During the course of the controversy, the citizens of Flagstaff and Summit Properties became allies against the United States Forest Service (USFS). Both groups felt the USFS, guardians of American public forest lands, extended the "Save the Peaks" controversy for many years by neither cooperating nor negotiating in good faith with either the citizens of Flagstaff or Summit Properties. |
Collection name | Wilson, Richard and Wilson, Jean |
Finding aid | http://www.azarchivesonline.org/xtf/view?docId=ead/nau/Wilson_richard_jean.xml |
Language | English |
Repository | Northern Arizona University. Cline Library. |
Rights | Digital surrogates are the property of the repository. Reproduction requires permission. |
Contributor | Wilson, Jean |
Subjects |
Citizen suits (Civil procedure) Land use, Rural--Law and legislation--Arizona Indians of North America--Religion United States. American Indian Religious Freedom Act United States. Endangered Species Act of 1973 United States. Forest Service |
Places |
Coconino National Forest (Ariz.) San Francisco Peaks (Ariz.) Flagstaff (Ariz.) Hart Prairie (Ariz.) Coconino County (Ariz.) Arizona Snow Bowl |
Oral history transcripts | Dr. and Mrs. Richard Wilson 7445 North Northern Avenue Tucson, Arizona 8 5704 Dear Dick and Jane: Enclosed is a copy of a rough draft of some of the legal work which is going into the preparation of the document concerning the Presidential Proclamation on "American Indian Religious Freedom". Keep in mind that this is just a rough draft and does not contain all the material nor all the factual background. I just thought you would be interested to see what we had done to date so that you would know the bills you are getting are for work we.have been performing. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Douglas J, Wall DJW: sd That a joint resolution was used to accomplish the intended result does not detract from the legislative character of the action. Congress legislates through "acts" and "joint resolutions". Resolutions are recognized in the Constitution, and a joint resolution is a bill within the meaning of the congressional rules and the processes of Congress.* With the exception of joint resolutions proposing amendments to the Constitution, all such resolutions are sent to the President for approval and have the full force of law. They are ordinarily used for what may be called the incidental, unusual, or inferior purposes of legislating but are used as well for the highest style of legislation—proposing amendments to the Constitution and abrogating treaties. 473 F.2d. 1156, 1163 After having..been passed by both houses of Congress in July, 1978, Public Law 95-341 was approved by the President on August 11, 1978. No special provisions concerning the effective date of the joint resolution was set forth in its text.: Thus, the provisions of Public Law 95-341 became effective and binding no later than August 11, 1978, the date of its approval by.the chief executive, and is currently in full force and effect. Burgess v. Salmon, 97 U.S. 381, 24.L.Ed. 1104 (1878); Bristol Manufacturing Corporation v. United States, 2 F.Supp. 781 (Ct.Cl., 1933); United States v. Clizer, 464 F.2d. 121, cert, denied, 409 U.S. 1086, 93 S.Ct. 697, 34 L.Ed.2d. 673, rehearing denied, 410 U.S. 948, 93 S.Ct. 1379, 35 L.Ed.2d. 616 (1973); 73 Am.Jur.2d. "Statutes" §360, pp. 492-493. "•''''";';•• ' The text of Public Law 95-341 strongly suggests that the law is simply declarative of the terms of the Free Exercise Clause of the First Amendment to the United States Constitution. Sections 1 and 2 of the law indicate that because it is the policy of the United States "to protect and preserve for American Indians their inherent right to freedom to believe, express, and exercise" their "traditional religions", any executive department, agency or other instrumentality is forbidden from taking any action authorized" by act/of Congress which would infringe upon the rights of American Indians to the free exercise of their native religions. The legislative history of Public Law 95-341 confirms this understanding. According to both the Senate and House of Representatives Reports on Public Law 95-341, the purpose of the joint resolution was "to insure that the policies and procedures of a variety of Federal agencies are brought into complaince with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion." See Senate Report No. 95-709, Select Committee on Indian Affairs, House Report No. 95-13 08, Interior and Insular Affairs Committee, United States Code, Congressional and Administrative News, 95th Congress, Second Session, p.24 58. As stated in the 'House Report No. 95-1308, The purpose of House Joint Resolution 738, introduced by Mr. Udall for Himself and Mr. Blouin, is to insure that the policies and procedures of various Federal agencies, as they may impact upon the exercise of traditional Indian religous practices, are brought into compliance with the constitutional injunction that Congress shall make no laws abridging the free exercise of religion. Native Americans have an inherent right to the free exercise of their religion. That right is reaffirmed by the U.S. Constitution in the Bill of Rights, as well as by many State and tribal constitutions. The practice of traditional native Indian religions, outside the Judeo-Christian mainstream or in combination with it, is further upheld in the 1968 Indian Civil Rights Act. Despite these laws, a lack of U.S. governmental policy has allowed infringement in the practice of native traditional religions. These infringements came about through the enforcement of policies and regulations based on laws which are basically sound and which the large majority of Indians strongly support. These laws often embody principles such as the preservation of wilderness areas and the preservation of endangered species for which. Indians have actively fought, literally generations before the non-Indian became convinced of their importance. But, because such laws were not intended to relate to religion and because there was a lack of awareness of their effect on religion, Congress neglected to fully consider the impact of such laws on the Indians' religious practices. It is only within the last decade that it has become apparent that such laws, when combined with more restrictive regulations, insensitive enforcement procedures and administrative policy directives, in fact, have interfered severely with the culture and religion of American Indians. According.to the legislative history underlying Public Law 95-341 as expressed in the Senate and House Reports on the bill, three general areas of infringement on Native American religious practice were of primary concern to Congress. The first was.the denial of access to Indians to "certain sites— a>hill, a lake, or a forest glade-.-which are sacred to Indian religions." The second area of concern was the restrictions on the use of substances by the federal government which are traditionally used in Native American religious ceremonies, such as peyote. The third area of concern which Congress •sought to remedy by.Public Law 95-341 was the actual interference •,by federal of ficials . with 'Native American religious ceremonies which Congress found to be "a direct threat to the foundations of religious freedom in America" and which "comes far too close to an informal state.religion." See House Report No. 95-1308, ; United States-Code, Congressional and Administrative Service, 95th Congress, Second Session, pp. 2459-2460. The very terms of the joint resolution, however, make it clear that the scope of the law goes far beyond the three major areas of concern which Congress articulated. The use of the phrase, "including but not limited to access to sites, use and possession of sacred object, and the freedom to worship through ceremonials and .traditional rights", evidences a Congressional intention ,that any federal agency action taken under the authority of an act of Congress must not# interfere in any way with the "inherent right" of Native Americans "to believe, express, and exercise" their "traditional religions". As'stated in House Report No. 95-1308, As a result of this committee's inquiry into the problems experienced by Indian traditional and religious leaders, it becomes apparent that there were many instances where the religious rites of the traditional Native Americans were being infringed upon by Federal statutes, regulations, or enforcement policies. New barriers have been raised against the pursuit of their traditional culture, of which the religion is an integral part. Based on available information, it appears that in nearly all cases the infringements which have occurred have not resulted from an express Federal policy, but rather from a lack of policy at the Federal level. In many instances, Federal officials responsible for the enforcement of the laws in question have simply been unaware of the nature of traditional native religious practices and, consequently, of the degree to which their agencies have interfered or restricted such practices. Lack of knowledge, unawareness, insensitivity, and neglect are the keynotes of the Federal Government's interaction with traditional Indian religions and cultures. This state of affairs is enhanced by the perception of many non-Indian officials that because Indian religous practices are different than their own that they somehow do not have the same status as a "real" religion. Yet, the effect on the individual whose religious customs are violated or infringed upon is as onerous as if [he] had been Protestant, Catholic, or Jewish. Public Law 95-341 unmistakeably involves religion. Whenever Congress, or any legislative body for that matter, enacts a bill which deals with religion, it must walk a tight rope between the Free Exercise and the Establishment Clause of the United States Constitution in order for its enactment to be valid. Nevertheless, because the cardinal principle of statutory construction is to save and not destroy, an act of Congress ought never be construed as being invalid on constitutional grounds if any other possible construction remains. United States v. Menasche, 348 U.S. 528, 75 S.Ct. 513, 99 L.Ed. 615 (1955); Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953)..Thus, a statute susceptible of either of two opposed interpretations must be read in a manner which effectuates rather than frustrates the major purpose of the legislative draftsmen, and such a statute must be read "in the candid service of avoiding a serious constitutional doubt." United States v. Rumely, 345 U.S. 41, 47, 73 S.Ct. 543, 97 L. Ed. 770, 776 (1953); Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed., 1787, rehearing denied, 335 U.S. 836, 69 S.Ct. 9, 93 L.Ed. 388 (1948). In short, an act of Congress is presumptively valid and must if at all possible be construed in a manner consistent with its constitutional validity. Pillow v. Roberts, 54 U.S. 472, 13 How. 472, 14 L.Ed. 228 (1851) The First Amendment prohibits Congress from enacting laws which establish religion. However, the United States Supreme Court has held that the First Amendment "does not say that in every and all respects there shall be a separation •of Church and State".because laws may properly be passed which "respect the religious nature of our people and accomodate the public service to their spiritual needs." Zorach v. Clauson, 343 U.S. 306, 312-314, 72 S.Ct. 679, 96 L.Ed. 954, 961-962 (1952). Accord: - Anderson v. Salt Lake City Corporation, 475 F.2d. 29 (10th Cir., 1972); Bob Jones University v. Johnson, 396 F.Supp. 597 (D.S.C., 1974). In Waltz v. Tax Commission of the City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d. 697 (1970) the United States Supreme Court confronted the problem posed to legislative enactments dealing with religion by both the Free Exercise and the Establishment Clauses of the First Amendment and sought to define guidepost by which the validity of such legislation could be tested. The Court stated: may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles. The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. * * * * * * * * * * * * * The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited. The general principle deducible from the First Amendment-,and all that has been said by the Court is.this: that we will not tolerate either governmentally established ' religion or governmental interference with religion. Short of those expressly proscribed governmental acts there is room for play in the joint productivity of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without •'interference. 25 L.Ed.2d. 697, 701-702, 397 U.S. 664,,. 668-669. As this language suggests, total separation of church and state is not mandated by the First Amendment. Rather, neutrality is the touchstone, and incidental benefits conferred upon religion are not proscribed-by the First Amendment. In any case the critical question is whether state action approaches the three major concerns of the Establishment Clause; to wit, sponsorship, financial support, and active involvement. Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d. 948 (1973); Americans United for the Separation of Church and State v. Blanton, 433 F.Supp. 97 (M.D.Tenn., 1977). To determine whether or not a legislative act or other state action violates the Establishment Clause, the United States Supreme Court has fashioned and consistently applied a three-pronged test.. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105,- 29-JL.Ed.2d. 745 (1971). As stated in Meek v. Pittenger, 421 U.S. .349,. 95 S.Ct. 1753, '44-L.Ed. 2d. -217 (1975) in order for state action to be valid in terms of the Establishment Clause, the following test must be met: First, the statute must have a secular legislative purpose. . . Second, it •must have a "primary effect" that neither advances nor inhibits religion. . . Third, the statute and its administration must avoid excessive government entanglement with religion. 421 U.S. 349, 358, 95 S.Ct. 1753, 1760. The Supreme Court has hastened to emphasize that this test is not to be rigidly construed. In Meek v. Pittenger, supra., the Court stated that "the test must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the-objectives of the Establishment Clause . have been impaired." 421 U.S. 349, 359, 95 S.Ct. 1753, 1760. In-that same case, the Court added that: But it is clear that not all legislative programs that provide indirect or incidental benefit to a religious institution are-prohibited by the Constitution. [citation omitted] The problem, like many problems in constitutional law, is one of degree. [citation omitted] 95 S.Ct. 1753, 1760. At first blush one might be inclined to say that Public Law 95-341 fails.this three-pronged test. However, on closer analysis and in terms of the basic rules of statutory construction set. forth above, the bill does not offend the Establishment Clause. First, Public Law 95-341 can properly be interpreted to have a secular legislative purpose. The law is aimed at federal agency action taken in the secular world. It touches on the administration of public lands and the enforcement of narcotic laws, environmental legislation and the like undertaken by federal agencies. In short, the primary purpose of the bill is to force federal agencies to take such action in the secular world as will not invade the freedom of Indians to worship or otherwise pursue their traditional religious beliefs. Secondly, the primary effect of the statute neither advances nor inhibits religion. The very findings of the House and Senate committees that federal agency action in the past has inhibited religion negates any conclusion that the act advances religion. To be sure, the law incidentally benefits native American religions to the extent that they are no longer inhibited by federal agency action as they had been in the past. Such, hov/ever, is not advancement in the sense of preference, but rather is a declaration that Native Americans must be allowed to practice their religion as freely as any sect in the Judeo-Christian mainstream and that federal agency action must not.inhibit such practice as it has in the past. The notion of "benevolent neutrality" expressed in the Waltz case, supra., aptly describes the intended effect of Public Law 95-341. ; Third, the bill does not excessively entangle the federal government with religion. The purpose and effect of the bill is directed to agency action taken in the secular sphere, and the act does nothing more than require federal agencies.to comply with the First Amendment mandate to take no action which infringes upon the free exercise of religion. Furthermore, it was found that "no additional cost to the Government would be incurred as a result of the enactment of this bill" and that Public Law 95-341 "will have no inflationary impact." In short, Public Law 95-341 is merely declarative of the Constitutional mandate that no federal agency action may interfere with or infringe upon the free exercise of religion, be that religion a part of the Judeo-Christian mainstream or of the Native American Minority. To the extent that.it seeks to correct past abuses the law steers a course of "benevolent neutrality" between the Establishment and Free Exercise Clauses. Because the law is declarative of the mandate of the Free Exercise Clause of the First Amendment, a determination of whether or not the law has been violated by agency action involves the same scope of inquiry and an application of the same legal principles involved in determining whether or not federal agency action is valid or invalid in terms of the proscriptions of the Free Exercise Clause of the First Amendment to the.United States Constitution. The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment or religion, or prohibiting the free exercise •thereof". Courts have held that this portion of the First Amendment binds only the actions of Congress or of federal agencies and, by virtue of the Fourteenth Amendment, actions of the several states. The constitutional provisions concerning the establishment and free exercise of religion do not generally affect private action. Business Executives' Move For •;. Vietnam Peace v. Federal Communications Commission, 450 F. 2d. .642, 650 (U.S.App.D.C., 1971); Mclntire v. William Penn Broadcasting Company of Philadelphia, 151 F.2d. 597, 601 (3rd Cir., ,1945). : As the Court stated in Massachusetts Universalist Convention v. Hildreth & Rogers Company, 183 F.2d. 497 (1st Cir., Plaintiff has argued that on the allegations of the complaint, it has a cause of action for the violation of its rights to freedom of speech and freedom of religion under the First Amendment to the Constitution. But this Amendment limits only the actions of Congress or of agencies of ' -•• •'"' the federal government and not private corporations such as defendants here. 183 F.2d. 497, 501, emphasis added. As this statement indicates, action taken by federal agencies is subject to,the prohibitions of the First Amendment. Courts have held that a cause of action may exist when an agency of the executive branch of the federal government takes action which violates the proscriptions of the Establishment or the Free Exercise Clause of the First Amendment. Allen v. Hickel, • 424 F.2d. 944 (U.S.App.D.C, 1970); Dodge v. Nakai, 298 F.Supp. 17 (D.Ariz., 1968). Even as the First Amendment is a limitation upon the power of Congress, federal agencies and the several states and thus has no effect upon the transaction of purely private persons, there are limited circumstances in which otherwise private action becomes subject to the requirements of the First Amendment. The provisions of the First Amendment become applicable to private action which attempts to infringe upon the free exercise of religion only where a governmental entity is significantly involved in the private action so as to make the private action governmental action for constitutional purposes. Golden v. Biscayne Bay Yacht Club,-521 F.2d. 344 (5th Cir., 1975). As the Court stated-in Granfield v. Catholic University of America, 539 F.2d. 1035 (U.S.App.D.C., 1976), The first amendment becomes relevant to a private institution's attempts to infringe upon the freedom of"an individual to practice 'his religion only when a governmental entity 'is shown to have become significantly involved in the discrimination practiced by it. 530 P.2d. 1035, 1046-1047 . :' The United States Supreme Court has recognized not only that not every belief put forward as "religious" may be elevated to a level which would make it subject to constitutional and appropriate statutory protection but also that the factfinding process .involved in determining what is or is not a "religion" subject to constitutional.and statutory protection is sensitive, • difficult-and stringently limited in scope. Accordingly, the •Supreme Court has fashioned a two-pronged test which courts are to employ in determining what is and is not a "religion" subject to^constitutional and statutory protection. . The first prong of this test is that the facts must show some-reasonable possibility that the convictions or beliefs are sincerely held. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, ,32-L.Ed.2d. 15 (1972). As the Court stated in United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d. 733 ^(1965) But we hasten to emphasize that while the "truth" of a belief is not open to question, there remains the significant question whether •it is "truly held". This is the threshold question of sincerity which must be resolved in every case. It is, of course, a question of fact. . . 13 L.Ed.2d. 733, 747 The second prong of the test is that the facts must show that the belief or conviction must be based upon that which can be broadly characterized as "theological" rather than something which is purely secular, social, political, or moral in ,nature. -Wisconsin v. Yoder, supra. In United States v. Seeger • supra., the Court concluded that a belief in relation to a •'Supreme Being as such terms were used in a federal statute 'included.. any sincerely held belief which occupied a place in the life of its possessor which was parallel to that filled by the orthodox belief in God. In so holding the Court stated that: We have concluded that Congress, in using the expression "Supreme Being" rather than the designation "God" was merely clarifying the meaning of religious training and belief so as to embrace all religions and to exclude essentially political, sociological, or philosophical views. We believe that under this construction, the test of belief "in relation to a Supreme Being" is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor paralell to that filled by the orthodox belief in God . . . Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is "in a relation to a Supreme Being" and the other is not. 13 L.Ed.2d. ' 733, 737 United States v. Seeger, supra., the Court was dealing with a matter of statutory construction, an area in which its :scope of inquiry is more narrowly circumscribed than in matters of constitutional interpretation. Nevertheless, the Court sought •to define "religion" in terms of "the ever-broadening understanding of the modern religious community." 13 L.Ed.2d. 733, 745. To that end the Court relied.upon Paul Tillich's notion that religion or belief in God was not so much a projection beyond .the: skies but. rather was the ground of an individual's very being. In addition to the views of other contemporary theologians, the Court also placed much reliance upon official pronouncements of the Second Vatican Council from which it quoted the following passage: "Ever since primordial days, numerous peoples have a certain perception of that hidden power which hovers over the course of things and over the events that make up the lives of men; some have even come to know of a Supreme Being and Father. Religions in advanced culture have been able to use more refined concepts and a more developed language in their struggle for an answer to.man's religious questions. The Church regards with sincere reverence those ways of action and of life, precepts and teachings which, althought they differ from the ones she sets forth, reflect nonetheless a ray of that Truth which enlightens all men." 13 L.Ed.2d. 733, 746 The broad understanding of "religion" enunciated by the Court in Seeger was reaffirmed in Wisconsin v. Yoder, supra. in the context of purely constitutional interpretation. In Yoder the Court held that the religiously grounded desire of members of the Amish Mennonite Church to keep their children out of high school outweighed the state's interest in compulsory attendance laws. In so holding the Court stated: A way of life, however virtuous and admirable, may not be interposed as a barrier to reasonable state regulation of education if it is based on purely secular considerations; to have the protection of the Religion Clauses, the claim must be rooted in religious belief. Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests. Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time and isolated himself at Walden Pond, their claims would not rest on a religious basis. Thoreau*s choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses. 32 L.Ed.2d.. 15, 25 ;.;•• Although Seeger and Yoder provide no concise and concrete . .definition of "religion"/: these case suggest that all that is excluded is purely personal, secular belief of a moral, ethical, political or philosophical nature unrelated to any perception of transcendental reality. These cases suggest that any sincerely held belief in an ultimate ground of being or in a transcendental reality.or related cosmology of hidden powers which pervade the course of human events must be deemed a "religion" for the purposes of constitutional and appropriate -statutory protection. In interpreting Seeger and Yoder, the lower federal courts have so held. Founding Church of Scientology of Washington v. United States, 409 F.2d. 1146 (U.S.App.D.C., 1969), cert, denied, 396 U.S. 963, 90 S.Ct. 434, 24 L.Ed.2d. 427 (1969); •United States v. Kahane, 396 F.Supp. 687 (E.D.N.Y., 1975); Malnak v. Maharishi Mahesh Yogi, 440 F.Supp. 1285, 1319-1323 (D.N.J., 1977). As the Court stated in Stevens v. Berger, 428 F.Supp 896 (E.D.N.Y., 1977), The court, in undertaking this difficult and sensitive factfinding task, recognizes stringent limitations on its right of inquiry. Under the United States Constitution, an individual's right to believe in anything he or she chooses in unquestioned. Religious beliefs are not required to be consistent, or logical, or acceptable to others. Governmental questioning of the truth or falsity of the beliefs"themselves is proscribed. [citations omitted.] A religious belief can appear to every other member of the human race preposterous, yet merit the protection of the Bill of Rights. Popularity, as well as verity, are inappropriate criteria. * * * * * * * * * * * * * * * Delicacy in probing and sensitivity to permissible diversity is required, lest established creeds and dogmas be given an advantage over new and changing modes of religious belief. Neither the trappings of robes, nor temples of stone, nor a fixed liturgy, nor an extensive'literature or history is required to meet the test of beliefs cognizable under the Constitution as religious. So far as our law is concerned, one person's religious beliefs held for one day are presumptively entitled to the "same protection as the beliefs of millions which have been shared for'thousands of years. 428 F.Supp. 896, 899-900, passim. Under this broad understanding of "religion" courts have consistently held that the beliefs of the American Indians and the practices of so-called "native American religions" are bona fide religions for the purposes of First Amendment protection. Such decisions rest in large part upon the ancient, oral traditions underlying such beliefs and, of course, upon the sincerity with which they are held by the particular litigants in question. Teterud v. Burns, 522 F.2d. 357 (8th Cir., 1975); State v. Whittingham, 19 Ariz. App. 27, 406 P.2d. 950, review denied, 110 Ariz. 279, 517 P.2d. 1275 (1973), cert, denied, 417 U.S. 946, 94 S.Ct. 3071, 41 L.Ed.2d.'667 (1974); People v. Woody, 394 P.2d. Once it is established that a "religion" is bona fide and subject to First Amendment protection, courts become bound by the decisions of the highest authorities in a particular religion on matters concerning discipline, faith, ecclesiastical :rule, custom and law. Serbian Eastern Orthodox Diocese for the United States of America and Canada v. Milivojevich, 426 U.S. r 696,'.96 S.Ct. 2372, 49 L.Ed.2d. 151 (1976); Presbyterian Church . in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 89 S.Ct. 601, 21 L.Ed.2d. 658 , (1969); Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 50,S.Ct. 5, 74 L.Ed.131. (1929). This is so because religious organizations are free from secular control and possess the power to decide for themselves questions of doctrine, morals, faith and discipline which courts must respect and apply where 'appropriate. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). As the Court stated nearly a century ago in Watson v. Jones, 13 Wall. 679, 80 U.S. 679 20 L.Ed. 666 (1871), Whenever the question of discipline, or of faith or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. 80 U.S. 679, 727. For a century it has been an axtiom of American constitutional law that the Free Exercise Clause of the First Amendment to the United States Constitution embraces two concepts; namely, the freedom to believe in religious tenets and the freedom to act in accordance with them. While the freedom to hold religious beliefs is absolute and not subject to governmental regultion in any way, the freedom to act in accordance with such beliefs "remains subject to regulation for the,protection of society." Cantwell v. Connecticut, 310 -U.S..296, 303-304, 60 S.Ct. 900. 903, 84 L.Ed. 1213 (1940); Reynolds v. United States, 98 U.S. 145, 166, 25 L.Ed. 244, 250 (1878); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d. 15 (1972). Even as conduct and action based upon religious belief may be subject to governmental regulation, any governmental action which ingringes or touches upon religious conduct and action must pass stringent tests. The United States Supreme Court has repeatedly emphasised that governmental action which infringes even incidentally upon religious conduct and action is justified only if the object of such governmental action serves a "compelling state interest" since only "the gravest abuses, endangering paramount interest, give occasion for permissible limitation" of religious practices. Sherbert v. Verner, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795, 10 L.Ed.2d. ,965 (1963); Cantwell v. Connecticut, supra.; Wisconsin v. Yoder, supra. As the Supreme Court stated in West Virginia State Board ?of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. '11628 (1943), The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. 319 U.S. 624, 639, 63 S.Ct. 1178, 1186, emphasis added. ' .. Apart from particular factual contexts,.it is difficult to fashion any concrete defintion .of the term "compelling state interest". It has, however, been generally stated that under the "compelling state interest" or strict scruitiny" test the government must demonstrate that the articulated object of its action is one which by force of necessity it is obligated to protect. Coleman v. Coleman, 291 N.E.2d. 530, 534 . (Ohio, 1974); accord: Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d. 600 (1969); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944); Howe v. Brown, 319 F.Supp. 862 (N.D.Ohio, 1970). As the Court stated in Dunham v. Pulsifer, 312 F.Supp. 411 (D.Vt., 1970), The traditional . . . test looks simply to the reasonableness of the regulatory scheme in light of its possible intended purpose. Under this test, a classification is valid if it is not arbitrary and has a reasonable connection with some permissible legislative or administrative purpose. Slight justification in terms of reasonableness often suffices here because the only countervailing interest of the individual is his stake in being treated the same as some particular group of his fellows. The regulatory classification must still be reasonable however and arbitrary classifications have been rejected simply because they were arbitrary. [citations omitted] A regulatory classification which, in addition to the creation of differential treatment, serves to penalize the exercise of a fundamental right must be justified by a compelling governmental interest. The operational difference is that a court will invalidate a classification which infringes upon a separate fundamental right unless the classification is shown to be necessary in the service of some compelling state interest, rather than just rationally related to some permissible state interest. [citations omitted]. The "compelling state interest standard, or the standard of "active review" called upon the state to show more than a link of reasonableness. The state must demonstrate the pressing importance of the classification in the context of some necessary governmental objective. 312 F.Supp. 411, 416-417, emphasis added. A showing that governmental action which imposes "any incidental burden" upon religious conduct and practice serves a "compelling state interest", however, is insufficient in and of--itself to justify such governmental action. In addition to , demonstrating that the object of governmental action which burdens religious action serves a "compelling state interest", there must also be a showing that "no alternative forms of regulation would combat such abuses without infringing First .Amendment rights." Sherbert v. Verner, supra., note 13, 374U.S. at 407, 83 S.Ct. at 1796; Cantwell v. Connecticut, supra.; accord: Carroll v. President & Commissioners of Princess Anne, 393 U.S..175, 89 S.Ct. 847, 21 L.Ed.2d. 324 '(1968). As the Supreme Court stated in Shelton v. Tucker, ; 364 U.S. 479,.*81 S.Ct.: 247, 5 L.Ed.2d. 231 (1960), In a series of decision this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stiffle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving that same basic purpose. 364 U.S. 479, 488, 5 L.Ed.2d. 231, 237, 81 S.Ct. 247, 252. Accordingly, when governmental action imposes "any incidental burden" or infringement upon the religious activities of an individual or a class of people, such governmental action is deemed to be valid only if it passes a two-fold test. First, the object sought to be achieved by such governmental .action must itself serve a compelling governmental interest, one involving only the "gravest abuses" and "endangering the interests" of society. Secondly, the means employed by the the government to achieve an objective which serves a compelling state interest must be such as to involve the least possible restriction on the exercise or practice of religious belief. Accord: Linscott v. Miller Falls Company, 440 F.2d. 14 (1st Cir., 1971), cert, denied 404 U.S. 14, 92 S.Ct. 77, 30 L.Ed.2d. 116 (1972); Brown v. Peyton, 437 F.2d. 1228 (4th Cir., 1971). The measure that must be employed is not one of equal balance. In this area, balanced scales weigh against government regulation. The state must'have a compelling interest in the regulation in question, [citation omitted], and there must be no equally effective alternative means to achieve the state's objective. Walsh v. Louisiana High School Athletic Association, 4 28 F.Supp. 1261, 1267 (E.D.La., 1977) Only in rare instances where a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate" is shown can a court uphold state action which imposes even an "incidental burden" on the free exercise of religion. In this highly sensitive constitutional area "'[o]nly the gravest abuses, endangering paramount interests, give occasion for permissible limitation.'" [citation omitted]. Restrictions on the free exercise of religion are allowed only when it is necessary "to prevent grave and immediate danger to interests which the state may lawfully protect." [citation omitted], "[T]he power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." [citation omitted]. McClure v. Salvation Army, 460 F.2d. 553 (5th Cir., 1972) Where governmental activity impairs individual ability to abide religious beliefs, two demonstrations become essential to its validity. The first is a clear showing that "any incidental burden on the free exercise of appellant's religion [is] justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate * * *;•" on this score "[o]nly the gravest abuses, endangering paramount interests" can engender permissible limitations on free exercise. The second is an equally convincing showing that "no alternative forms of regulation would combat such abuses without infringing First Amendment rights." For "even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." However attractive the end to be achieved, the means employed must hoard First Amendment values. . Barnett v. Rodgers, 410 F.2d. 995, 1000 (U.S.App.D.C, 1969) ' Accordingly, , in Pillar of Fire v. Denver Urban Renewal .Authority, 509 P.2d. 1250 (Colo., 1973) an urban renewal authority threatened to condemn a church hall which was located on a block slated for acquisition and construction of urban renewal projects. The church hall had been built in 1903 and 1904 shortly after the founding of the Pillar;,of Fire Church, an evangelical offshoot of Methodism founded in 1901 by the evangelist Alma White in Denver, Colorado which was first known as the Pentecostal Union. In its earliest days the church held its meetings in tents, but' as it1 grew; the church hall at issue in the case was constructed 'and used for church meetings. The church alleged that the t hall was revered by members for its historical and symbolic meanings in the birth of the Pillar of Fire Church and that under the Free Exercise Clause of the First Amendment the Urban Renewal Authority should be enjoined from condemning > and demolishing the church hall. The Court held that in order to proceed with condemnation and demolition of the building which was alleged to be the birthplace of the Pillar of Fire Church and in which religious services were conducted, the Urban Redevelopment Authority must demonstrate at a court hearing that condemnation was justified by a compelling state interest and that no other reasonable alternative means of accomplishing that goal were available. In so holding the Court stated: The only conclusion which we can draw is that we must balance the interests involved in the controversy before us and recognize that the state must show a substantial interest without a reasonable alternate means of accomplishment if the state is to be constitutionally allowed to take the birthplace of the Pillar of Fire Church, which is alleged to be sui generis. * * * * * * * * * * * * * * The Pillar of Fire is entitled to a hearing at which the competing interests of the Renewal Authority and the church can be weighed. A court must be given an opportunity to judge whether the Authority's plans for the specific block and the site of the church are so vital to the overall renewal plan that the petitioner's property should be condemned and demolished. The First Amendment protects freedom of religion which has its roots in the hearts and souls of the congregation, not inanimate brick and mortar. Yet, religious faith and tradition can invest certain structures and land sites with significance which deserves First Amendment protection. * * * When regulating religious conduct, however, the state may be challenged to justify its infringement of the totally free exercise of religion. "' [citation omitted] We hold ' that under these circumstances, the state may be so challenged to justify a use of its power of eminent domain. The District Court must weigh the plans and goals of the Renewal Authority, as they bear on the particular land in question, against the right of the Pillar of Fire Church to maintain a brick structure which the Church claims is unique and does not conform to the general plan for development of the block. The petitioner's claim that the sui generis nature of the mother church of the Pillar of Fire prohibits condemnation causes us to apply a balancing test in considering the rights of the parties to this action. * * * We cannot uphold an unreviewed. general decision by the Renewal Authority which will destroy the first church which was erected bv the members of the Pillar of Fire Church. The petitioner is entitled to its day in court to determine which of the riqhts should prevail. 509 P.2d. 1250, 1253-55, passim, emphasis added.* Upon remand the trial court determined that condemnation should proceed, and-that order was affirmed by the Colorado Supreme Court. Nevertheless, in Denver Urban Renewal Authority v. Pillar of Fire, 552 P.2d. 23 (Colo., 1976) the Court reaffirmed the principles upon which its earlier decision turned but simply ruled that the trial court's findings of fact supported condemnation and were not clearly erroneous. "The single-most significant factor which compelled this court to adopt a balancing test when this case was first before us was the allegation by Pillar of Fire that this particular church building and site—the subject of the condemnation action—had "unique religious significance" for that denomination," the Court stated. 552 P.2d. 23, 24 The record, however, supported the proposition that the building was not the birthplace nor the mother church of the Pillar of Fire denomination and that in fact the denomination had attempted to sell the property some years prior to the condemnation efforts. The Court further found that the redevelopment authority had demonstrated not only a compelling state interest in the urban renewal project but also had shown that alternative means of accomplishing the project ."could not be achieved if the [church] •building remains in place". The Court thus concluded that even :if the Pillar of Fire had proven that the "church building was suit generis, the scales tip convincingly in favor of the interest" of the authority because the authority had met its burden of proof according.to the constitutional standards delineated above. 552 P.2d. 23, 25. The Pillar of Fire holding was followed in Order of Friars of the Province of the Most Holy Name v. Denver Urban Renewal Authority, 527 P.2d. 804 (Colo., 1974) a redevelopment authority: sought to condemn a church parking lot located next to a monestary which had been designated as an historical site by state authorities. The church resisted the condemnation on First Amendment grounds by arguing that the lot was necessary to its operation by virtue of that fact that it would impose a great difficulty upon many parishioners to attent were parking not available. The church contended that unless the lot was preserved, many parishioners would cease or at least be discouraged from attending church. The Court held that only after a hearing weighing and balancing the competing interest between the public aspects and the religious aspects and upon a finding that there was a compelling public interest involved which could not be accomplished through any other reasonable means could the court properly order condemnation of the property. In so holding the Court stated: The subject property, having been designated an historical landmark, is analogous to the situation in Pillar of Fire, which involved the mother church and fountain-head of the sect. In such a situation, then, Pillar of Fire establishes that the court has a duty to weigh and balance the competing interests, public and religious. Only after such a hearing and upon a finding that there is a substantial public interest involved which cannot be accomplished "through any other reasonable means", can the court proceed with the condemnation of property. 527 P.2d. 804, 805 It is firmly established that the functions of government under the United States Constitution are apportioned among three branches of government. The legislature has the duty to make laws. The executive branch has the duty to execute orrenforce those laws,, and the judiciary has the duty to interpret and apply those laws in case properly brought before it. Commonwealth of Massachusetts v. Mellon, 262 U.S. 446, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1928); Los Angeles Customs and Freight Brokers Association v. Johnson, 277 F.Supp. 525, ;,538-539 (C.D.Cal., 1967.)..- The executive department of the government, which includes the various departments and agencies under the authority of the President, has the legal duty to administer all''laws honestly and efficiently, and it can neither select those laws which it will enforce, forbid or fail to execute some laws, nor extend its powers under official pretext beyond those provided by law. Kendall v. U.S. ex rel. Stokes, 37 U.S. 524, 12 Pet. 524, 9 L.Ed. 1181 (1838); Newfield v. Ryan, 91 F.2d. 700 (5th Cir., 1937), cert denied, 302 U.S. 729, 58 S.Ct. 54, 82 L.Ed. 563, rehearing denied, 302 U.S. 777, 58 S.Ct. 138, 82 L.Ed. 601 (1938); Strutwear Knitting Co. v. Olson, 13 F.Supp. 384 (D.Minn., 1936). As the Court stated in Application of Texas Company, 27 F.Supp. 847 (E.D.I11., 1939), The Executive Department, with all its branches, is charged with the true and faithful administration of the acts of Congress. * * * It is its duty to admin-ister all laws honestly and efficiently; and for its failure to do so penalties and remedies are provided. The Executive Department carries the acts of the Congress into effect, administers them, secures their due performance and enforces them. 27 F.Supp. 847, 849-850. UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE Region 3 517 Gold Avenue, SW Albuqueruqe, New Mexico 87102 1570(Rn) APR 5 1979 Mr. Robert VI. Warden Mangum, Wall, Stoops & Warden 222 East Birch Avenue P.O. Box 10 Flagstaff, Arizona 86002 Dear Mr. Warden: Your request for stay of the decision by Forest Supervisor Michael Kerrick concerning the Arizona Snow Bowl is granted. The stay will remain in effect until the administrative review record is complete and my decision is made. Sincerely, M. 0. HASSELL Regional Forester Ski operator to fight curb on expansion By John Schroeder Northern Arizona Bureau FLAGSTAFF — Snow Bowl operator Norman .Johnson said Friday he will appeal a Forest Service decision not to allow an expansion at the ski area and vowed to seek support from Arlzonans to save II. Johnson said .the decision hy Re-glnrtal Forester M.J. Masseil last week was " I l l o g i c a l , " without documentation and amounts to "economic condemnation" of the ski area in the San Francisco Peaks. Hassoli reversed a decision by Coconino National Forest Supervisor Mike Kerrick to allow expansion in the 777-acre permit area by saying the "line has to be drawn somewhere" because the ski area never will be "a top-notch" facility. Masseil also noted (hat expansion would violate the rights of area Indian tribes who consider the peaks sacred. Johnson said he will place advertisements in Arizona newspapers urging residents to solicit help from Gov. Bruce Babbitt to preserve the ski area. Since ftasseii announced his decision, Johnson said there has been a "tremendous outpouring of people calling to ask what they can do." Unless the expansion is allowed, Johnson said, "We will continue to run as long as we can, but we gel into this limiting factor where it's not economically sound to run." tie added, "I can operate with the e x i s t i n g equipment until it is no longer safe. I could never replace these f a c i l i t i es under these restrictions." Johnson criticized Hasseil for saying the Snow Bowl is not an outstanding winter-sports area. He said nearly 100,000 persons used the chairlift last year. The statistics, he said, show the Snow Bowl "is doing more skier days hy almost three times than any other ski area in the United Slates." Editorial appearing in the Arizona Republic 2/20/80 UNITED STATES DEPARTMENT OF AGRICULTURE FOREST SERVICE Region 3 517 Gold Avenue, SW Albuquerque, New Mexico 87102 1570(Rn) APR 6 1979 Mr. Robert W. Warden Mangum, Wall, Stoops & Warden 222 East Birch Avenue Flagstaff, Arizona 86002 Dear Mr. Warden: Your request for an oral presentation relevant to your appeal of Forest Supervisor Kerrick's decision regarding the Arizona Snow Bowl is granted. The time, date, and place will be set when I have received all the requests for presentations, and you will be notified of the arrangements. Sincerely, W. J. HASSELL Regional Forester CM-RRR M E M O R A N D U M TO: File FROM: John Feeney RE: Arizona Snow Bowl Expansion: Washington Meetings On April 2, 1979 the Departments of the Interior and Agriculture held two meetings which dealt with matters relevant to the opposition by Native American Indians to expansion of skiing and recreational facilities at the Arizona Snow Bowl on the San Francisco Peaks. Doug Wall, Bob Warden, and John Feeney from Mangum, Wall, Stoops, & Warden attended part of one meeting and all of the other meeting. The following is a brief summary of the matters which took place at these meetings. Meeting of the Task Force on the American Indian Religious Freedom Act, Public Law 95-341 This meeting of the task force for the implementation of the American Indian Religious Freedom Act commenced at 9:00 a.m. in Room 7000-A of the Interior Building. The task force consisted of members of the various executive departments and agencies and was headed by Assistant Secretary of the Interior for Indian Affairs, Forrest Gerard. The Department of the Interior is charged with the duty of compiling a report to be submitted to Congress by August 11, 1979 concerning compliance by the various federal agencies and departments with the requirements of the Act. One Suzan Harjo, a Special Assistant to the Assistant Secretary was in charge of the meeting, the purpose of which was to determine the progress which the various federal agencies were making in complying with the act. Some 42 persons were present, the vast majority of whom were either members of the task force or represenatatives of the various departments and agencies of the executive branch of government. It was fairly evident that the Assistant Secretary and his Special Assistant did not want members of the general public to attend the meeting; and, short of throwing them out, they did all that they could to make them feel unwelcome. The reason became readily apparent as the meeting progressed. Practically none of the agencies who sent representatives to the meeting had done anything to determine whether or not any of their projects were affected by the Act. Only the Department of Trasportation confessed that one of its highway projects might be affected by the terms of the law. The Forest Service simply stated that it was completing its report and review of the act and would forward its study and regulations when completed. This sentiment was echoed by nearly all agencies represented at the meeting. Worse yet, Ms. Harjoe, the Special Assistant whose organizational skills were practically nonexistant, had managed to lose or misplace those few agencies reports which had been sent to her. In short, in the eight months since the passage of the Act, one could not help but possess the definite and firm conviction that the Task Force charged with its implementation was paralized by chaos. One interesting aspect of this first meeting was a short talk given by a young Indian member of the task force who provided those present with an historical perspective of American Indian religions. He emphasized that in all Native American religions spiritual belief is permeated by the understanding of the presence in all aspects of life and nature of deities. Yet from the Puritan times to the present Indians have been looked upon as irreligious heathens because their religious concepts are at odds, at least in degree of emphasis, with mainstream Judaeo-Christianity. This, he stated, has led to a sense of inequality on the part of Indians with respect to the dominant culture and, concomitantly, to a wanning of traditional Native American beliefs in the process of cultural assimilation. He noted that at one point government reports dealing with Native American religious beliefs and practices characterized them as barbarous and sought legislation to prohibit them. He concluded by implying that with Public Law 95-341 legislation now exists to right the past wrongs perpetrated by a dominant Judaeo-Christian culture on Native American religious beliefs and practices. These remarks pointed out a basic premise from which many of the task force members operated; namely, Public Law 95-341 was intended as some sort of affirmative action legislation by which the force of government would be used to revitalize traditional Native American religious beliefs. This is a more radical interpretation of the Act that this writers has himself advanced, and it is one which presents very serious problems under the Establishment Clause of the First Amendment. II Meeting on the San Francisco Peaks The Departments of the Interior and Agriculture held a special meeting at 10:00 a.m. in the Interior Building on the matter of expansion of skiing and recreational facilities on the San Francisco Peaks. Forrest Gerard, Assistant Secretary, represented the Department of the Interior, and Rufus Cutler, Assistant Secretary, represented the Department of the Agriculture. Some subordinate officers of these two departments were also present as were Governor Lewis of the Zuni Tribe, Abbott Sequaptewa Chairman of the Hopi tribe, John Kennedy, attorney for the Hopi tribe, two Hopi religious elders, Washington counsel for the Navajo tribe, Bob Warden, Doug Wall, John Feeney, and Robert A. Warden of Peabody, Rivlin, Lambert and Meyers, Washington counsel for Richard Wilson. Because of the United Airline strike and the unavailability of flights into Washington, no Navajo medicinemen were present at the meeting. Governor Lewis of the Zuni tribe spoke first. He stated that the Zuni people, like the Hopis, regard the entire San Francisco Peaks as a holy place. They regard the pines and firs which grow on the mountain as holy and make pilgrimages to the Peaks to retrieve their branches for ceremonial purposes. He stated that the Zunis oppose expansion of the Snow Bowl because that which was made by the creator was created in its natural state and must remain so. He asked that development be stayed. The Washington counsel for the Navajo tribe spoke after Governor Lewis. He simply stated that the Department of Agriculture could either rescind the Forest Supervisor's decision or face a lawsuit. The tribe, he stated, was prepared to fight the decision to the end for total elimination of the Snow Bowl. Doug Wall spoke next. He stated that he represented Richard Wilson and, in Ben Hufford's absence, the Navajo Medicinemen's Association. He emphasised that implementation of the proposed alternative amounted to a sacriligious gouging of the body and face of what the Navajos believed to be a living and holy deity. He stated that the decision must at least be stayed pending the administrative appeal process and until the Department of Interior has issued its final regulations under the act. Abbott Sequaptewa, Chairman of the Hopi Tribe, spoke briefly in order to introduce two Hopi elders from the Kachina Clan. Mr. Lewis, the high priest of the Kachina Clan was the only Indian to speak. He stated that he and his clan possessed stewardship over the San Francisco Peaks because the Kachina people live there. The spirit people live within the mountain's interior where there is the sacred shrine or kiva. The Hopis deposit offerings on the slopes of the Peaks at a secret but specified place. The Peaks, he noted, regulated the ceremonial calender of the Hopis as well as their entire lives and must be kept inviolate. Not only must the facilities not be expanded, he stated, but also, they must be removed and the mountain returned to the Indians in its natural state so that they might exercise their divinely ordained task of stewardship. Rufus Cutler, Assistant Secretary of the Agriculture, then reviewed the status of the Forest Supervisor's decision. Cutler stated that he was familiar with the Flagstaff area having worked in Winslow, Arizona in years past as well as at the Howdy Hank's Trading Post for some years. He noted that expansion would take place only within the designated permit area. He suggested that a possible compromise might be to close the forest, at least that which will be designated a wilderness area but not the permit area, to all except Indians on ceremonial occasions. He also suggested that an advisory council be created to plan the use of the area outside of the permit boundaries for Native American religious practices. He noted that the entire mountain might qualify as an historical site under the National Historic Preservation Act because of its religious significant. Nevertheless, the underlying tone of Assistant Secretary Cutler's remarks implied a justification for the Forest Supervisor's decision to expand the facilities. His view appeared to be that everything except the permit area might be considered sacred and unalterable. One of his subordinates even indicated that he had talked to Norm Johnson the morning of the Washington meeting concerning the expansion. Abbott Sequaptewa picked up on this implied assumption of the Assistant Secretary and would have none of it. He criticized Cutler's insensitivity and all but accused him of subordinating religious values to monetary advantages of the white community. There must, Sequaptewa stated, be no corruption of the mountain by human hands since only in its natural state will it bring a good and bountiful life to all beings on earth. John Kennedy, attorney for the Hopi Tribe spoke after Abbott Sequaptewa. He emphasised the religious significance which the San Francisco Peaks possessed in the Hopi way of life and stressed that the Hopis would fight to the end to eliminate the Snow Bowl. During the course of the meeting Doug Wall presented to both Assistant Secretary Cutler and Assistant Secretary Gerard a bound copy of the Wilson administrative appeal brief including the document on the religious significance of the mountain. The two undersecretaries stated that they would review it. After attorney Kennedy finished speaking, the meeting broke up. United States Department of the Interior OFFICE OF THE SECRETARY WASHINGTON, D.C. 20240 MEETING OF THE TASK FORCE TO PREPARE THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT IMPLEMENTATION REPORT, APRIL 2, 1979, • WASHINGTON, D.C. Opening Remarks - Assistant Secretary - Indian Affairs Forrest J. Gerard Overview - Status Report - Special Assistant to the Assistant Secretary - Indian Affairs Suzan Shown Harjo Introduction - Task Force Members and Project Representatives Status Report from Task Force Members Status Report from Project Representatives Discussion - Report Preparation 1. Consultation 2. Public participation 3. Task Groups 4. Field Meetings 5. Schedule 6. Deadlines for Draft Report April 19, 1979 The Honorable Cecil D. Andrus Secretary of the Interior Interior Building Washington, D.C. 20240 Re: Notice of Violation of the Endangered Species Act Resulting from the Proposed Expansion of Skiing and Recreational Facilities at the Arizona Snow Bowl, Coconino National Forest, Coconino County, Arizona. Dear Mr. Secretary: This office represents Richard F. Wilson and Jean Wilson, private citizens who reside in Tucson, Arizona and who hold fee title to a tract of land on the slopes of the San Francsico Peaks in Coconino County, Arizona in the immediate environs of the Arizona Snow Bowl, a skiing and recreational facility which is located on lands owned by the United States of America as a part of the Coconino National Forest and which is operated by a private Arizona corporation, Northland Recreations, Inc., under use permits from the United States Forest Service, Department of Agriculture. Upon the request of the private operator of the Arizona Snow Bowl, the Forest Service has recently approved and recommended radical expansion of the skiing and recreational facilities on these public lands. Because the Wilsons find that expansion of such facilities would interfere materially and substantially with their environmental and aesthetic values and enjoyment of their own property and the continguous public lands, they have opposed this expansion. Since the United States. Forest Service issued its Final Environmental Impact Statement in connection with its recommendations for expansion of the Arizona Snow Bowl on February 27, 1979, it has become apparent to the Wilsons that the recommended expansion violates the provisions of the Endangered Species Act of 1973, 16 U.S.C. §1531, e_t. seq. which the Secretary of the Interior is responsible for administrating. The Wilsons have filed an administrative appeal with the United States Forest Service MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Two from the Forest Supervisor's decision to allow expansion of skiing and recreational facilities at the Arizona Snow Bowl on March 27, 1979 in which they brought to the attention of the Forest Supervisor and his superior the violations of the Endangered Species which would result if the proposed expansion were implemented. By this letter, the Wilsons are giving written notice to you as Secretary of the Interior of these same violations pursuant to the provisions of 16 U.S.C. §1540(g)(1)(A)(B) and 16 U.S.C. §1540(g)(2)(A)(B). The Final Environmental Impact Statement acknowledges that two species of plants grow within Arizona Snow Bowl permit area which have been proposed for listing as endangered species under the provisions of the Endangered Species Act, 16 U.S.C. §1531, e_t seq.; to-wit, Ranunculus inamoenus var. Subaffinis, and Senecio franciscanus. The Impact Statement also finds that five other plant species which have been proposed for listing as "threatened species" under the Endangered Species Act are found in the Snow Bowl permit area; namely, Apocynum jonesii, Phacelia Serrata, Erigeron pringle, Pontentilla multi-foliolata, and Clematis hirsutis-sama var.~arizonica. In regard to these plant species the Final Environmental Impact Statement states: "A groundsel, Senecio franciscanus, and a buttercup, Ranunculus inameonus var. subaffinis, occur on the Mountain and have been proposed for listing as endangered plants under the Endangered Species Act of 1973. Forest Service Threatened and Endangered Plant Studies indicate that both of these species warrant listing as Federally threatened species. These plants will be given full consideration under the provisions of the Act. Section 7 of the Act indicates that all Federal departments and agencies will take such action to ensure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered and threatened species or result in the destruction or modification of the critical habitat of such species. MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Three "Preliminary floristic investigations were undertaken by the Forest Service during the 1978 growing season in an effort to determine the extent which these plants may be affected by proposed activities and the amount of intensive survey required by the respective alternative. "Both species have been collected within the upper areas of the Snow Bowl permit area. The groundsel is primarily an alpine tundra species occurring above timberline on Agassiz and Humphreys Peaks. The Deaver Herbarium at Northern Arizona University has several specimens of this groundsel; one of which was collected at 11,500 feet near the upper terminal of the chairlift. It must be concluded that the range of this species extends into the area of proposed development. "The buttercup is primarily a timber-line species which occurs on the south and west slopes of Agassiz Peak. The Deaver Herbarium specimens were collected from 10,000 feet to 11,500 feet on Agassiz Peak. Several specimens have been collected well within the area of development. "Five plants which exist in the vicinity of Snow Bowl Road (Forest Service Road 516) have been proposed to be listed as threatened under the same Act. These are a dogbane, Apocynum jonesii, a phacelia, Phacelia serrata, a fleabane, Erigeron pringle, a cinquefoil, Potentilla multi-foliotta, and a leather flower, Clematis hirs"uitissma var. arizonica. These 5 plants will also be given full consideration under the Act." (Final Environmental Impact Statement, pp. 46-47, emphasis added hereafter cited as F.E.I.S.) MANGUM, WALL,STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Four The Forest Supervisor thus concedes that endangered and threatened plant species which the Forest Service believes should be protected under the Act and which have in fact been proposed for imminent listing and protection exist within the area of permitted development. The Forest Supervisor also concedes that these plant species will be subject to harm and destruction under the development authorized by the "Preferred Alternative." Recognizing that the San Francisco Peaks are "ecologically unique" and that the Alpine Tundra in which Senecio grows is "sensitive" and "ecologically fragile", the Impact Statement mentions more than once the damage to wildlife in the environs in which the "Preferred Alternative" is to be implemented. (F.E.I.S., pp. 36, 130, 160.) The Impact Statement admits that there will be "continued trampling of alpine tundra by hikers and summertime chairlift users", that changes in area vegetation will occur, that an increased potential for insect and disease activity exists as a result of clearing and slashing of the natural landscape, that increased erosion and the outright loss of vegetative cover will result because of ski run and road construction and summertime use connected with the operation of the lift facilities. (F.E.I.S., pp. 126, 130, 144, 146, 156, 158, 160, 215.) Documents within the Impact Statement likewise suggest that substantial damage will occur to plant life including that acknowledged by the Forest Service to be "endangered" or "threatened". A letter from Philip M. Smith of the Arizona Game and Fish Department states that "the Alpine Association is unique to Arizona and quite delicate. Even moderate use of this area could result in significant damage". (F.E.I.S., p. 228.) More importantly, the Regional Environmental Officer for the Department of Interior, the agency charged with implementing and enforcing the Endangered Species Act, stated in a letter to the Forest Supervisor that: "Seven plant species which have been proposed for listing as endangered plants under the Endangered Species Act of 197 3 could be affected by ski area expansion. Since the San Francisco Peaks are ecologically unique, any endangered species habitat that occurs on this 'island' must be considered especially critical and irreplaceable. Since the alternatives MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Five presented call for varying degrees of development, their effect on endangered species habitat should be taken into account during plan selection, not merely during implementation." (F.E.I.S., p. 223, emphasis added.) Notwithstanding these admissions and caveats about endangered and threatened species, the Forest Supervisor in his Final Environmental Impact Statement insists that "as far as how the Endangered Species Act would be implemented is very difficult to answer and is beyond the scope of this FES except to say that measures will be taken in accord with the Act if threatened or endangered species are found within an area to be developed." (F.E.I.S., p. 18 9.) The Impact Statement clearly shows that only preliminary and cursory studies have been done concerning species admitted to be endangered or threatened. (F.E.I.S., p. 46.) In addition, the Impact Statement does nothing more than state in vague and con-elusory terms that "measures to identify areas which contain endangered species will be determined" and that "a detailed study to determine the extent of habitat types and total numbers, and impacts of both developed and dispersed recreation upon flora, fauna, and insects endemic to the San Francisco Peaks" will be "initiated". (F.E.I.S., pp. 128, 146, 163.) In addition, the Forest Supervisor maintains in his Impact Statement that any problems which arise with respect to the endangered and threatened species "will be dealt with as encountered" and that such plants "will be given full consideration" under the Act. (F.E.I.S., p. 46.) The Forest Supervisor's version of "full consideration" is as follows: "The Forest Service finds that although individual plants may be destroyed during construction and maintenance activities, the species will not become extinct because of any alternative. The Forest Service will conduct a floristic survey in advance of actual construction activities and if individual plants are found, the Forest Service will try to avoid them. If they cannot be avoided and might be destroyed, they will be offered MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Six to qualified botanists for relocation or plant collection. The habitat for Ranunculus inameonus var. subaffinis may be enhanced because it requires open habitat and has been found growing in open areas created by previous ski area improvements. "The Forest Service will develop a recreational management plan for the alpine tundra. This action will enhance the habitat for the 2 species by controlling recreation hiking that currently damage habitat." (F.E.I.S., pp. 176-177.) The foregoing is sufficient to suggest that the Forest Supervisor has failed to comply with the requirements of the Endangered Species Act and that his adoption of the "Preferred Alternative" is illegal and contrary to law. Under 16 U.S.C. §1536 federal agencies are under an affirmative mandate to carry out the purposes of the Act since under that statute such federal agencies "shall, in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency. . . does not jeopardize the continued existence of any endangered species or threatened species". The term, "conserve" is defined in 16 U.S.C. §1532 to mean "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Chapter are no longer necessary." In addition 16 U.S.C. 1531(5) (b) provides that the Act was intended to "Provide a means whereby the ecosystems upon which the endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered and threatened, species". The portions of the Act just cited do not limit the species subject to protection to those formally listed by the Secretary of Interior but refer to "any endangered species or threatened species". 16 U.S.C. §1532 in turn defines "endangered species" and "threatened species" without regard to formal listing by the Secretary: MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Seven "(14) The term 'endangered species * means any species which is in danger of extinction throughout all or a significant portion of its range other than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection under the provisions of this chapter would present an overwhelming and overriding risk to man." * * * * * * * * * * "(15) The term 'threatened species' means any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." In addition, prior to the 1978 amendment of 16 U.S.C. §1536, that section required that federal agencies carry out "programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title" and take "such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species". (emphasis added.) By virtue of the 1978 amendment, the term "such" in the prior statute has become "any", thereby indicating a Congressional intention to change prior law so as to insure that federal agency action does not jeopardize the existence of any endangered or threatened species, regardless of whether or not it has been formally listed by the Secretary. For the purposes of the Act, no distinction as to the degree of protection to be afforded to "endangered species" and "threatened species", is made since both are entitled to equally rigorous protection under the Act with the only distinction between the two being a functional one. The Congressional mandate that federal agencies must use any and all methods necessary not only to avoid further damage to any endangered or threatened species but to improve (not destroy) their habitat is not only evidence from statement of policy contained in 16 U.S.C. §1531 but also from judicial decision under the Act. The following statements emphasize this view: MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Eight "The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost. This is reflected not only in the stated policy of the Act, but in literally every section of the statute. All persons, including federal agencies, are specifically instructed not to •take' endangered species, meaning that no one is 'to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect' such life forms. [citation omitted] Agencies in particular are directed by §§2(c) and 3(2) of the Act to 'use all methods and procedures to preserve endangered species.' [citation omitted] In addition, the legislative history undergirding §7 reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over 'primary missions' of federal agencies." Tennessee Valley Authority v. Hill U.S. , 98 S.Ct. 2279, 57 L.Ed.2d 117, 140-141. "In holding that the appellees have 'adequately considered' the effects of the highway on the crane, the district court misconstrued the directive of §7 [of the Endangered Species Act]. As we have pointed out, §7 imposes on all federal agencies the mandatory obligation to insure that any action authorized, MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Nine funded, or carried out by them does not jeopardize the existence of an endangered species or destroy critical habitat of such species. [citation omitted] Although the FEIS and the administrative record indicate that the appellees have recognized and considered the danger the highway poses to the crane, they have failed to take the necessary steps 'to insure* that the highway will not jeopardize the crane or modify its habitat." National Wildlife Federation v. Coleman, 529 F.2d 359 (5th Cir., 1976) . "It is clear from the face of the statute [the Endangered Species Act] that the Fish and Wildlife Service, as part of Interior, must do far more than merely avoid the elimination of protected species. It must bring these species back from the brink so that they may be removed from the protected class, and it must use all methods necessary to do so. The Service cannot limit its focus to what it considers the most important management tool available to it, i.e. habitat control, to accomplish this end." Defenders of Wildlife v. Andrus, 428 F.Supp. 167, 170 (D.D.C., 1977) In the present matter two endangered species and five threatened species exist within the permit area and along the course of the proposed road expansion. The Forest Service has conceded that at least two plants found in the permit area should be classified as "threatened species", and the best available information is that all such plant species will soon be formally listed by the Secretary of the Interior. MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Ten Nevertheless, the Forest Supervisor has adopted an alternative which he concedes will damage and harm such species as construction of the slopes and lifts occurs notwithstanding the fact that the Regional Office of the Secretary of the Interior has told the Supervisor, in effect, that the permit area is the critical habitat of such species. The flat concession that implementation of the "Preferred Alternative" will further endanger the species which the Forest Supervisor himself admits should at least be considered as "threatened" under the Act is tantamount to an admission that the Act has been violated. As the authorities cited above make clear, any action which damages such species and which falls short of bringing them back from the brink of danger and threat violates the Act. Accordingly, when the Forest Supervisor states in his Impact Statement that the "Preferred Alternative" will not directly cause the extinction of any endangered or threatened species, he has misconceived his legal duty. Avoiding extinction is not sufficient compliance with the Act nor, for that matter, are vague and conclusory statements to the effect that during implementation of development further harm to endangered and threatened species will be avoided. By mandating that federal agencies shall conserve endangered and threatened species, Congress has required the Forest Supervisor to use all methods necessary to increase their population and bring them back from the brink of danger and threat. See Defenders of Wildlife v. Andrus, supra. In addition, Section 7 of the Endangered Species Act requires all federal agencies in consultation with the Secretary of the Interior to conserve endangered species. Subsection (c) of Section 7 as amended in 1978 provides that: "(c) BIOLOGICAL ASSESSMENT. —To facilitate compliance with the requirements of subsection (a), each Federal agency shall, with respect to any agency action of such agency for which no contract for construction has been entered into and for which no construction has begun on the date of enactment of the Endangered Species Act Amendments of 1978, request of the Secretary information whether any species which is listed or proposed to be listed may be MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Eleven present in the area of such proposed action. If the Secretary advises, based on the best scientific and commercial data available, that such species may be present, such agency shall conduct a biological assessment for the purposes of identifying any endangered species or threatened species which is likely to be affected by such action. Such assessment shall be completed within 180 days after the date on which initiated (or within such other period as mutually agreed to by the Secretary and such agency) and, before any contract for construction is entered into and before construction is begun with respect to such action. Such assessment may be undertaken as part of the Federal agency's compliance with the requirements of section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332)." Subsection (d) of the 1978 amendment to the Endangered Species Act additionally provides that: "(d) LIMITATION ON COMMITMENT OF RESOURCES—After inition of consultation required under subsection (a), the Federal agency and the permit or license applicant shall not make any irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or* implementation of any reasonable and prudent alternative measures which would avoid jeopardizing the continued existence of any endangered or threatened species or adversely modifying or destroying the critical habitat of any such species." MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Twelve The Forest Supervisor's Impact Statement provides ample evidence that both of the foregoing sections of the Act have been violated. The Impact Statement simply states that "measures to identify areas which contain certain endangered or threatened species will be taken" and that a detailed study to determine the extent of habitat types and total numbers" will be "initiated". (F.E.I.S., pp. 128, 144, 163.) Clearly no biological assessment was done prior to the agency's action here. Moreover, the authorization for further development is clearly a commitment of resources which is irreversible and irretrievable in nature and which was done so as to foreclose the formulation or implementation of any reasonable alternative measures which would avoid jeopardizing the continued existence of endangered or threatened species. Finally, the Wilsons submit that implementation of the proposed expansion of skiing and recreational facilities at the Arizona Snow Bowl prior to a formal listing of the plant species proposed for listing would frustrate the purposes of the act which is to prohibit the taking or damaging of plant species which are in fact considered to be endangered and to bring such species back from the point of danger or extinction. Such a purpose, the Wilsons submit, cannot and should not be frustrated by the actions of one federal executive department, such as the United States Forest Service, Department of the Agriculture here, when the executive department charged with administering and implementing the Endangered Species Act has been prevented by administrative burdens and the sheer size of the task involved in identifying and listing endangered and threatened species in a nation as large as ours from formally listing all such plant and animal species. Implementation of the recommended expansion of skiing and recreational at the Arizona Snow Bowl has been stayed pending disposition of appeals by the Regional Forester in Albuquerque, New Mexico. Such disposition is estimated to occur by mid-June of this year, but there is no guarantee that further stays would be granted in the event of a decision by the Regional Forest adverse to the position of the Wilsons. The Wilsons, therefore, respectfully submit that the taking of admittedly endangered or threatened species is imminent as are further palpable violations of the Act such that an emergency exists as to said species. The Wilsons therefore request that you as Secretary of the Interior take such action as is necessary and authorized under the provisions of the Endangered Species Act to enjoin or otherwise remedy the MANGUM, WALL, STOOPS & WARDEN The Honorable Cecil D. Andrus April 19, 1979 Page Thirteen violations of the Act by the Forest Supervisor as hereinabove set forth. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Robert W. Warden RWW/dd cc: Patricia Sanderson Post Regional Environmental Officer United States Department of the Interior Pacific Southwest Region Box 36098 450 Golden Gate Avenue San Francisco, California 94102 Mr. M. J. Hassel Regional Forester Southwestern Region 517 Gold Avenue, S.W. Albuquerque, New Mexico Michael A. .Kerrick Forest Supervisor 2323 East Greenlaw Lane Flagstaff, Arizona 86001 Dr. and Mrs. Richard F. Wilson 7445 North Northern Avenue Tucson, Arizona 8 5704 Dr. Richard F. Wilson 7445 North Northern Avenue Tucson, AZ 85704 Dear Dick and Jean: Enclosed are copies of work being currently done by John Hodges, the attorney in Washington, D.C. Just wanted to keep you abreast of what is being done. Very truly yours, MANGUM, WALL, STOOPS & WARDEN Douglas J. Wall DJW:sd-l E n c l . Robert W. Warden, Esq. Douglas J. Wall, Esq. Mangum, Wall, Stoops & Warden 222 East Birch Avenue P. 0. Box 10 Flagstaff, Arizona 66002 Dear Bob and Doug: Pursuant to our last telephone coversation, I have prepared and am enclosing two short memoranda that may be of some interest to you. One deals with the duty to preserve sacred sites under the American Indian Religious Freedom Act. The other deals with the extent to which an agency's discretion is restricted by the Act. As I mentioned, I will be in Hawaii for the first part of the week of May 7. However, should you need to be in touch with me, I will be at the Outrigger Hotel in Honolulu, or you can leave a message with my secretary, Kathy Marlowe, at my office in Washington. Best regards. Enclosures cc: Robert A. Warden, Esq. MEMORANDUM OF LAW ON PRESERVATION OF RELIGIOUS SITES UNDER THE AMERICAN INDIAN RELIGIOUS FREEDOM ACT On February 27, 197 9, Michael Kerrick, Supervisor of the Coconino National Forest, issued a decision to allow additional development of the Arizona Snowbowl and improvement of the Snowbowl Road. In that decision and in his Responsive Statement to consolidated requests for administrative review of the decision the Forest Supervisor, inter alia, indicates that despite the proposed desecration of the sacred San Francisco Peaks and consequent harm to Indian religion, the decision complies with the American Indian Religious Freedom Act (Public Law 95-341) because the Park Service will not deny access to religious sites there and will allow religious ceremonies at such sites. This decision evidences a profound misunderstanding of the thrust of'the Act. As discussed below, the Act contemplates preservation of sites as well as access to them. On December 15, 1977 Senate Joint Resolution 102 was introduced by Senator Abourezk on behalf of himself and Senators Humphrey, Kennedy, Inouye, Matsunaga, Hatfield, Stevens, Gravel and Goldwater. The Resolution declared that: "henceforth, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian ... including, - 2 - but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." The Act as finally passed was practically identical to the bill as introduced. It has been clear from the time S. J. Res 102 was introduced that the Act was intended to protect religious sites: 1. At the Senate hearings on S. J. Res. 102 held on February 24 and 27, 1978, Senator Inouye, one of its sponsors, stated the concern for protecting sacred sites: "Of particular concern is the fact that sites located on restricted areas are often frequently neglected by the landowners and, left forgotten, slowly deteriorate. In many areas the historical and religious significance of these ancient sites has been ignored. Land development which destroys or unrecognizably alters these sacred areas continues. As Mr. Gard Kealoha, Information Officer for Alu Like, a Native Hawaiian Service Organization comments: 'It is sad to note that when one compares historical site listings of the State with Trum's Hawaiian Almanac and Annual from 1907 there are glaring discrepancies. The Thrum's book gives a much better description of the sites identified then but there are many placed in Thrum's Annual that are omitted in the State Registry. Obviously these sites have either been destroyed or lost through development.... It is an appalling situation.' Mr. Kealoha is quite correct, this is indeed an appalling situation. The Native Hawaiian has already lost so much, his kingdom, his language, his culture, the full sense of his Hawaiianness. It is almost criminal to discover how little is left by which he can attain an affiliation with the spirituality of his past." (Emphasis added.) Hearings on H.J. Res. 102 before the Senate Select Committee on Indian Affairs, 95th Congress, 2d Sess. [hereinafter "Hearings"] 11-12 (1978). - 3 - 2. Senator Abourezk placed into the record a letter to Senator Matsunaga from George Ariyoshi, Governor of Hawaii, indicating the nexus between preservation of sites and access to them: "throughout the islands, native religious sites have been and are in the process of being restored, a prideful concern to all the citizens of Hawaii. I do acknowledge, however, that there are more sites for which access may not be available." (Emphasis added.) (Hearings, 39.) 3. Senator Abourezk also placed into the record a letter from Eduardo E. Malapit, Mayor, County of Kauai, Hawaii, stressing the need to avoid destruction of sites and supporting S. J. Res. 102: "The confrontations between the military and the Kahoolawe Ohana involves the Ohana's concern for desecration of the Aina rather than any overt effort by the military to deny them access to any particular religious site. However, the motivating force behind the Ohana is religious in nature. Another concern of mine is the loss of ancient religious sites due to new developments. Like other counties of Hawaii, Kauai is undergoing development and this growth may infringe upon these sites. There have been instances in the past where this has happened. Once these religious sites are destroyed, they are lost forever. If preserved, these sites could be used to perpetuate and rebuild the Hawaiian's relationship with their past. The passage of S. J. Resolution 102 will bring about a reassessment of our commitment to support the well-being of our Native Hawaiians and all other Native Americans." (Hearings, 40.) 4 - 4. Senator Abourezk specifically stated that protection of sites is included in the ambit of S. J. Res. 102. He stated: "A section of this Resolution says it provides the freedom of worship for ceremonials and traditional rites. By having that sort of thing incorporated, you cannot deface religious objects and so on, and religious sites, while it does not specifically state it, it would by implication enforce that. It specifically includes cemeteries for access in religious rites like burials. You cannot have access if the cemetery is not protected." (Emphasis added.) (Hearings, 83-84.) 5. Senator Abourezk placed into the record a statement from George Elk Shoulder, Sr., President, Native Ways of Worship, Inc., Headsman, Dog Shoulder Society, Ashland, Montana, and Joe Little Coyote, Sr., Chief, Northern Bank of Cheyenne, Vice President, Native Ways of Worship, Inc., Ashland, Montana, supporting S. J. Res. 102. In particular, the statement pointed out that Bear Butte, near Sturgis, South Dakota, is a religious mountain for the Cheyenne. They stated concern about the future of the mountain, in particular, that "[s]ome of the concerns that we have is possible defacement of the mountain for developmental purposes which will ruin its natural setting." (Hearings, 98.) 6. Elmer Savilla, of the Quechan Tribe, Chairman of the National Indian Coalition and Executive Director of the Intertribal Council, supported S. J. Res. 102 and pointed out that "the Indians of the West Coast — California specifically — are aroused and angry at the wanton destruction and - 5 - desecration which has occurred and is still occurring today. It is necessary for some timely action to be taken by the Congress in order to prevent serious confrontation between Indian groups and commercial developers." (Emphasis added.) (Hearings, 117-118.) 7. Steven Rios, Executive Secretary, Native American Heritage Commission, supported S. J. Res. 102 and indicated with respect to one sacred site that "we are trying to do two things. We are trying to preserve the sacred site and, second, we are trying to gain access to the site." (Hearings, 193.) Mr. Rios noted that Governor Edmund G. Brown, Jr., of California supported S. J. Res. 102. (Hearings, 195.) 8. Senator Abourezk placed into the record a draft telegram from Governor Edmund G. Brown, Jr., of California to Senators Cranston and Hayakawa urging them to support the S. J. Res. 102. Governor Brown indicated that S. J. Res. 102 would "reaffirm the fact that American Indians have a constitutional right to the free excercise of their traditional religious practices." Significant in that regard is that Governor Brown interpreted "the free exercise of the American Indian of their traditional religious practices" to include both "assuring access to sacred sites and preventing public and private parties from causing irreparable damage to them." (Hearings, 196.) 9. Senator Abourezk placed into the record a document from the Native Americans Heritage Commission stating, inter alia, as follows: - 6 - "I. Problem Virtually all religious sects or groups possess 'places' of special significance in their religion. These 'places' may exist as churches, or structures used for worship, or worship-related activities. As Indians of Native California tribes, our religious beliefs are as sacred to us as any possessed by the non-Indian society. One of the basic differences between our cultures has been and continues to be our choice of areas where we go to renew our spiritual understanding. Our ancestors chose certain outdoor places where the life-giving spirits of the earth were strongest and easiest to reach. Everyone must realize and respect the fact that the Mother Earth was and still remains sacred to Indian people. We have found that many of our sacred traditional grounds have been destroyed or fenced off leaving us without access to those 'places' that are sacred to us. American Indians have many needs, but without our spiritual heritage and freedom, almost everything is lost. II. What is an American Indian Cultural Site? Any mound, midden, cave, building, structure, burial grounds, rock art, ceremonial grounds, doctoring site, medicinal or training site, or any area identified in Native California Indian oral traditions or teachings to be of religious or social significance. * * * V. Function of Native American Heritage Commission The specific powers and duties of the Native American Heritage Commission include: 1. Making recommendations to the Legislature about the protection of significant Indian religious and social sites (for example, ceremonial Roundhouses, ceremonial dance sites, burial grounds, sacred hot springs, etc.). 2. Ensuring access for Native American Indians to significant religious and social sites. (Example: Coso Sacred Hot Springs, traditional gathering areas, medicine training areas.) - 7 - 3. Making recommendations to the Department of Parks and Recreation and to the California Arts Council about Indian-related matters. 4. Assisting state agencies in negotiations with federal agencies for the protection of sacred sites located on federal land. 5. If necessary, bringing legal action to prevent severe or irreparable damage to sacred sites or ceremonial places located on public land." (Hearings, 198-199.) 10. Senator Abourezk placed into the record a statement by Reverend Caleb Holetstawa Johnson, Personal Representative of the Hopi Traditional Kikmongwis, who supported S. J. Res. 102 and specifically stated that "we do have a problem in protecting the San Francisco Peaks near Flagstaff, Arizona. These peaks are sacred mountains to the Navajos and Traditional Hopis and the city of Flagstaff want to develop a snowbowl so non-Indians can ski there. We are opposed to this because the Hopi gods live there." (Hearings, 242.) LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D.C. aoo38 TWELFTH FLOOR CONNECTICUT BUILDING I ISO CONNECTICUT AVENUE, N.W. TELEPHONE (202) 457-1000 CABLE AD0RESS:"EXCELSIOR» TELEX: 697413 March 26, 1981 HAND DELIVERY Patricia L. Beneke, Esq. General Litigation Section Lands and Natural Resources Division United States Department of Justice Washington, D.C. 20530 Re: Arizona Snow Bowl Litigation, Civil Action Nos. 81-0481, 81-0493 and 81-0558 (United States District Court for the District of Columbia) Dear Ms. Beneke: On behalf of all plaintiffs, we are writing to follow up on our several telephone calls to the Justice Department since the hearing before Judge Richey last week. This letter serves three objectives: first, to review our respective mandates from Judge Richey; second, to indicate the steps each side has taken since the hearing to comply with Judge Richey's directives; and third, to commit to writing several practical proposals we have already discussed with you by telephone concerning the manner in which we might proceed from this juncture. The March 18 Hearing Based on our review of the transcript of last week's hearing, we believe that Judge Richey asked the parties to undertake three discrete assignments. First, the Court asked all parties to complete a standard-form Trial Certification Sheet. The plaintiffs are required to return their copies by Monday, March 30, and the defendants are required to return the form by April 8. (Transcript, pp. 25-26.V) 357 All page references in this letter are to the pages of the official transcript of the March 18 hearing. PEABODY, RIVLIN, LAMBERT & MEYERS * PROFESSIONAL CORPORATION Patricia L. Beneke , Esq. March 26, 1981 Page Two Second, the Court required the plaintiffs to supplement their March 30 submission by including an explication of their constitutional and statutory religious freedom claims. (Pp. 32-33.) And third, in response to a question you posed concerning the procedural status of the pending motions for preliminary injunction, the Court urged the parties to facilitate disposition of the cases on the merits by conducting meetings for the purpose of arriving at factual stipulations and procedural agreements. (Pp. 31-32.) We quote from the transcript: MS. BENEKE: Your Honor, I guess I would request some clarification as to this preliminary injunction status of the preliminary injunction motions on the part of both the Hopi Indians and Navajo Medicine Men Association, given the fact that this is a consolidated case. THE COURT: I think that is a good question and I think you ought to discuss it with counsel first and then if you wish to take it up with the Court I will be glad to hear from you. . . . As experienced counsel know in my court, I lock the lawyers in my jury room if they do not come in with a stipulated set of material facts which are not in dispute. Lawyers just do that because they do not talk to each other. They think it is a sign of weakness or confession of weakness when they talk to each other so they avoid it until the Court makes them do so. This is really true. I know it. I have been around for 32 years now, and I guess I am too old to know otherwise. . . . In any event, it facilitates the disposition of litigation. I have had many lawyers tell me that that has been a good thing although a painful thing. And then you have only a hearing on, if you cannot agree on everything, a very mini basis. Then you have a final appeal, it gets off the docket, the administrative office never calls me, my chief judge never calls me, and it •PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke, Esq. March 26, 1981 Page Three does not stay on my docket for ten years while you go through the slow appellate process. So that is the way it is going to be done" [Pp. 30^ 31^ 32-emphasis added.] Judge Richey contemplated at least these procedural steps: (1) an early meeting of counsel designed to narrow and simplify the issues to be presented to the Court for ultimate resolution, (2) a good-faith effort to prepare written stipulations of fact designed to serve the same purpose, and (3) an effort by the parties to hasten final adjudication on the merits, presumably by putting the case in a posture suitable for resolution by cross-motions for summary judgment.V Compliance with Judge Richey's Directives On Tuesday, March 24, principal counsel for all plaintiffs convened an all-day meeting. Their purpose was to examine the administrative record to determine whether it required supplementation through live testimony or additional evidence. Copies of the Court's Trial Certification Sheet were distributed at that meeting. Counsel also considered the status of the preliminary injunction motions. Acting on Judge Richey's explicit command to "discuss it with [opposing] counsel first" (p. 31), the participants at the meeting asked Washington counsel to contact your office for the purpose of arranging a meeting at the Justice Department. Lawrence White of this office V With respect to the latter point, Judge Richey engaged in this colloquy with Charles Work, counsel for the plaintiffs THE COURT: Can you tell me in your professional opinion that it looks like [these cases] will go off on summary judgment? MR. WORK: I think so, Your Honor. This is a paper case. [P. 21.] PEABODY, RlVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke , Esq. March 26, 1981 Page Four finally spoke to you by telephone on March 24.^/ During your conversation with Mr. White, you indicated that, for administrative reasons, a meeting could not be scheduled until after the appointment of a senior attorney to replace Susan Hiatt on these cases. The plaintiffs have made a concerted effort to refine their cases, to think carefully about the evidence necessary to a decision, to come up with procedural suggestions and alternatives (described in more detail below), and to comply in all other respects with the Court's directive to "facilitate [] the disposition of [this] litigation" (p. 32). The plaintiffs are firmly convinced that a meeting with you at the Justice Department is a logical and necessary next step. A Proposed Course of Action We believe that the following proposal is in the best interest of all parties and is consistent with Judge Richey's instructions at the March 18 hearing. (1) We should schedule a meeting of all counsel at the Justice Department as soon as possible, but no later than the week of March 30. The meeting should be designed to achieve two goals. It should provide you with an opportunity to seek any clarification you need concerning the plaintiffs' claims under the First Amendment and the American Indian Religious Freedom Act. And it should start the process of formulating a comprehensive stipulation of material undisputed facts. v We were initially informed that Susan Hiatt was the principal Justice Department attorney on these cases. Ms. Hiatt was in Puerto Rico during the week of the hearing, and did not return to her office until Monday, March 23. Not until we contacted Ms. Hiatt on Tuesday afternoon, March 24, were we informed that she was no longer active in the case and that our inquiries should be addressed to you. - ' PEABODY, RlVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Patricia L. Beneke, Esq. March 26, 1981 Page Five (2) We should agree on a timetable for submitting the entire case for resolution on the merits, and we should submit the timetable to Judge Richey for his approval. The timetable should include, at a minimum: A period for negotiating and preparing stipulations; A brief period for expedited discovery, should any discovery be necessary; — A date for submitting a bound "record" (analogous to the joint appendix in an appellate case) containing those portions of the administrative record deemed necessary by all parties for resolution of the cases; and — A schedule for the preparation of summary judgment motions and oppositions, or, if necessary, for an abbreviated hearing on the merits. (3) We believe that a determination on the merits can probably be reached by the District Court by early summer. We would seek assurances that the Agriculture Department would not authorize any construction until the case is decided on the merits — assurances that should not be difficult to provide under the circumstances. (4) To hasten a final determination on the merits, the plaintiffs would withdraw pending motions for preliminary injunction. This should simplify the procedural posture of the cases, in line with Judge Richey's explicit command to that effect. We cannot go any further without sitting down together — and, indeed, we have been ordered to do so by Judge Richey. We sincerely believe that a mutual effort to expedite final resolution on the merits is the most reasonable course of action. We ask you, at your earliest convenience, to telephone us so that we can arrange a meeting and resolve some of the substantive and procedural issues set forth in this letter and in the transcript of last week's hearing. Sincerely, Robert A. Warden RAW/LW/slb ENOICOTT PEABOOY LEWIS A. RIVLIN JEREMIAH D. LAMBERT TEOSON J. MEYERS CHARLES T. DUNCAN OAVIO J.TAYLOR MICHAEL W. FABER JOHN R. FERGUSON TIMOTHY J. WATERS JOHN T. SCHELL PETER B. ARCHIE CHARLES R. WORK JOHN A. HODGES ROBERT H. MORSE ROBERT A. WARDEN ROBERT N.JENSEN COLLISTER JOHNSON, JR. JOHN LOCKIE ROBERT P. VISSER TIMOTHY L. HARKER NATHALIE P. GILFOYLE RONALD J. DOLAN LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D.C. aoooa TWELFTH noon CONNECTICUT BUILDING IISO CONNECTICUT AVENUE, N.W. TELEPHONE 1202) .457-1000 CABLE ADDHtSS -EXCELSIOR" TELEX: 897413 fc'ik APR 1 3 19.81 April 8, 1981 WRITER'S DIRECT OIAL NUMCCR 457-1016 The Hon. Charles R. Richey United States District Judge United States.Courthouse Washington, D.C. 20001 Re: Hopi Indian Tribe v. Block, et al., Civil Action Nos. 81-0481, 81-0493 and 81-0558 Dear Judge Richey: I write on behalf of all plaintiffs in these consolidated cases. Pursuant to the suggestion made by the Court at the March 18 hearing, counsel for all parties held a fruitful meeting at the Justice Department on April 2. The purpose of the meeting was, first, to elucidate for government counsel the plaintiffs' religious freedom claims under the First Amendment and the American Indian Religious Freedom Act; second, to discuss the testimony of potential witnesses identified in the plaintiffs' Trial Certification Sheets; and, third, to explore the possibility of preparing and submitting joint stipulations of material facts to expedite final resolution of these cases on the merits. The latter two subjects are closely related. The number of plaintiffs' witnesses and the subject-matter of their testimony (if any) will depend on the degree to which the parties can stipulate to factual issues. If the parties are successful in agreeing to comprehensive stipulations, then most (perhaps all) of the plaintiffs' potential witnesses will not have to testify. Government counsel asked us to prepare a first draft of factual stipulations, and we have obliged. Copies of our draft were hand-delivered to all government counsel today, and a copy is attached hereto for the Court's review. PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION The Hon. Charles R. Richey April 8, 1981 Page Two As we indicated at the March 18 hearing and in our Supplemental Memorandum of March 30, we respectfully suggest that the most appropriate way of proceeding is to put these cases in a posture so that they can be adjudicated on the merits in relatively short order. This should not be a difficult or time-consuming case if the parties are willing to have the Court rule on cross-motions for summary judgment after the preparation of suitable stipulations of fact and legal briefs. An expedited proceeding would also save the parties and the Court the time and trouble of arguing the pending motions for preliminary injunction. We are prepared to move forward on this expedited timetable, and our proposed stipulations are submitted in that spirit. We add, for the sake of clarity, that at this time government counsel have neither accepted nor rejected our proposal for expedited adjudication on the merits in this Court. Sincerely yours, cc: All Counsel of Record Jose Uranga, Esquire Patricia Beneke, Esquire General Litigation Section Lands & Natural Resources Division United States Department of Justice Washington, D.C. 20530 Re: Arizona Snow Bowl Litigation, Civil Action Nos. 81-0481, 81-0493 and 81-0558 (United States District Court for the District of Columbia) Dear Jose and Patricia: On behalf of all plaintiffs, we want to express our appreciation to you and Wendy John for meeting with us on April 2. The meeting was helpful and productive. One of the subjects we discussed at our meeting was the potential usefulness of stipulated facts. (It was Judge Richey who raised the subject initially by suggesting at the March 18 hearing that stipulations have proven useful in other cases.) You suggested that we provide some draft stipulations, and we enclose our first draft with this letter. These proposed stipulations are submitted for use solely in these consolidated cases or other proceedings concerning the significance of the San Francisco Peaks to the Hopis or the Navajos. • PRASODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esquire Patricia Beneke, Esquire April 8, 1981 Page Two We emphasize that these are drafts, and not final products; we would be pleased either to receive your suggestions and comments or to meet with you at your convenience to formulate stipulations satisfactory to all parties. One of these proposed stipulations (the one identified by the heading "Commencement of Construction") memorializes the representation you made at our meeting: any construction in the permit area will not commence until June 1 at the earliest, and the Forest Service has not yet issued the required.final approval.1/ If we can arrive at some understanding with respect to the Forest Service's schedule for issuing final construction permits, then the plaintiffs will not press their applications for preliminary injunctive relief at this time. If, however, we are not assured that the Forest Service will refrain from authorizing construction until the Court can resolve these cases on the merits, then the plaintiffs intend to pursue their motions for preliminary injunction. The other proposed stipulations are based on documentary and testimonial evidence submitted during administrative proceedings before the Forest Service. We would be happy to provide you with record citations for any or all of the proposed stipulations, should you desire them now or in the future.2/ 1/ We also appreciate your willingness to notify us when the Forest Service issues these final approvals. 2/ We have not done so in the attached document for two reasons: first, because we did not have access to the administrative record while all counsel were in Washington for last week's meeting, and, second, because you indicated at that meeting that record cites were unnecessary at this juncture. - PEA'BODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esquire Patricia Beneke, Esquire April 8, 1981 Page Three Once again, we thank you for meeting with us. We look forward to your comments on our proposed stipulations. Charles R. Work cc (with enclosures): Hon. Charles R. Richey United States District Judge Wendy M. John Office of the General Counsel United States Department of Agriculture LAW OFFICES PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION WASHINGTON, D. C. 2 0 0 3 9 TWELFTH FLOOR CONNECTICUT BUILDING 1150 CONNECTICUT AVENUE, N.W. TELEPHONE (202) 4 5 7 - 1 0 00 CABLE AO0RESS:"EXCELSIOR" TELEX: 897413 June 19, 1981 Jose Uranga, Esq. United States Department of Justice General Litigation Section Lands & Natural Resources Division Room 1712 Pennsylvania Avenue & 10th Street, N.W. Washington, D.C. 20530 Re: Hopi Indian Tribe v. Block, Civil Actions No. 81-0481, 81-0493 and 81-0558 Dear Jose: I write this letter on behalf of all plaintiffs in these consolidated actions. We have reviewed Judge Richey's June 12 order and June 15 memorandum opinion. Our purpose in writing is, first, to provide you with our views on the procedure that must be observed in connection with Judge Richey's order remanding the National Historic Preservation Act counts to the Department of Agriculture for further proceedings; and, second, to make procedural requests of the Forest Service in connection with those proceedings. Judge Richey found two separate violations of the Act. 1/ First, with respect to two properties already 1/ We use the term "Act" in this letter to refer collectively, in context, to the National Historic Preservation Act, 16 U.S.C. § 470, et seq.; Executive Order 11593; and the implementing regulations, 36 C.F.R. Parts 800, 1201, 1202 and 1204. PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Two (.2) listed in the National Register (the C. Hart Merriam Base Camp and the Fern Mountain Ranch), the Court held that the defendants failed to comply with the regulations by making a "no effect" determination without consulting first with the State Historic Preservation Officer ("SHPO") and observing the other procedural requirements in 36 C.F.R. Part 800. And second, the Court ruled that the defendants erred in concluding that the San Francisco Peaks were not eligible for inclusion in the National Register. As a result of these violations, the Court remanded the matter to the Forest Service "for full compliance with NHPA and the applicable regulations." (Mem. Op., p. 30.) Each of the Court's rulings under the Act will require the Forest Service on remand to satisfy specific regulatory requirements. Sites Already Listed in the National Register With respect to the C. Hart Merriam Base Camp and the Fern Mountain Ranch, 36 C.F.R. §§ 800.4 and 800.6 establish the procedure for determining what effect, if any, the Forest Service permits in these cases will have on the historical, architectural, archaeological or cultural characteristics of the properties. The procedure includes at least the following steps. First, the Forest Service, in consultation with the SHPO, must apply the "Criteria of Effect" specified in section 800.3(a) of the regulations. (§ 800.4(b).) Second, if the Forest Service determines that the issuance of permits will not affect the listed properties, it must document that determination and make its written findings available to the public for inspection and comment. (§ 800.4(b)(1).) Third, the Forest Service's written findings — including "written evidence of the views of the State Historic Preservation Officer" — must be forwarded to the Executive Director of the Advisory Council on Historic Preservation. (§ 800.4(c).) The Executive Director must then review the determination. (§ 800.6(a).) The regulations specifically provide for comment from any interested PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Three (.3) party (§ 800.4(b) (1)), and authorize the Executive Director to consult with interested parties during review of the agency's determination (§ 800.6(a)(2)). The Executive Director, in consultation with the Forest Service and the SHPO, is required to "consider feasible and prudent alternatives ... that could avoid, mitigate, or minimize adverse effects ..." (§ 800.6(b)), and may hold public information meetings to receive views from any interested citizen (§ 800.6(b) (3)) . And fourth, the regulations explicitly preclude the Forest Service from issuing any permit until the Advisory Council completes its review. (§ 800.4(e).) In this case, moreover, no permit could issue until the Forest Service were to present evidence of full compliance to the Court and Judge Richey were to lift the stay on further activity. (Mem. Op., p. 3 5.) Pursuant to the provisions of 36 C.F.R. § 800.15- (a), request is hereby made for (a) all documents, materials, and data concerning the potential effect of the undertaking on National Register and other eligible properties, and (b) notice of all public information meetings related to the review process. The Wilsons, as owners of one of the National Register properties in the area and property owners on the Peaks, and the other plaintiffs request a public information meeting in order to have an opportunity to present evidence pursuant to the provisions of 36 C.F.R. § 800.15(b) concerning the effects of the proposed undertaking and consideration of proposed alternatives to the project. In addition to notice of all steps taken in connection with the review process, the plaintiffs also request prompt notification of determination of effect and copies of the documentation upon which any such determination is based. We fully expect the Forest Service to comply in every respect with all procedural requirements, and as interested parties we intend to participate fully during this process. Status of the San Francisco Peaks as a Site Eligible for Inclusion in the National Register Judge Richey also held that the Forest Service failed to meet its duties under the Act concerning the PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Four (4.) eligibility of the San Francisco Peaks for inclusion in the National Register and that further administrative proceedings are necessary to determine whether the Peaks should in fact be listed. (Mem. Op., p. 30.) (This duty includes, of course, the duty to determine whether any portion of the Peaks, or sites thereon, should be listed.) Those proceedings must include, at a minimum, the following steps. Consultation and Inventory: First, the Forest Service must consult with the SHPO and "other individuals or organizations with historical and cuicural expertise" to assess on a preliminary basis what historical and cultural properties are known to be within the area. (§ 800.4(a)- (1).) In view of the large area encompassed by the Peaks and the fact that, to the best of our knowledge, no survey of this enormous area has ever been conducted in the past, we believe that the Forest Service must commission a comprehensive survey as part of its preliminary assessment. The Forest Service has a duty under the Act to locate all properties eligible for inclusion in the National Register. Section 106 of the National Historic Preservation Act (16 U.S.C. § 470f) requires that federal agencies take into account the effect of an undertaking "on any district, site, building, structure, or object that is included in or eligible for inclusion in" the National Register. (Emphasis added.) The legislative history of this provision is discussed at length in WATCH (Waterbury Action to Conserve Our Heritage), Inc. v. Harris, 603 F.2d 310, 321-22 (2d Cir.), cert, denied, 100 S.Ct. 530 (1979). The legislative history makes clear that the obligations under Section 106 extend to identifying any properties that appear to qualify for inclusion in the National Register. These obligations were described in detail in Executive Order 11593, 36 Fed. Reg. 8921 (.1971) (reprinted in 16 U.S.C.A. § 470, at 28). Section 2 of the Executive Order imposes specific responsibilities on federal agencies to carry out this policy. Among these responsibilities are two broadly-phrased and far-reaching mandates: (1) In cooperation with the liaison officer for the State or territory involved, the agency head is required by no later than July 1, 1973, "to locate, inventory and nominate to the Secretary of the Interior all sites, buildings, districts and objects under the agency's jurisdiction PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Five (5) or control that appear to qualify for listing on the National Register of Historic Places." (§ 2(a) (emphasis added).) (2) The agency is also required to "exercise caution" during the interim period pending completion of the inventory nomination process to assure that "any" federally-owned property that might qualify for nomination is not inadvertently demolished or substantially altered. (§ 2(b).) Federal regulations issued pursuant to the Act and Executive Order 11593 reaffirm the requirement to conduct searches for all potentially eligible sites. 36 C.F.R. Part 800 (1979). Under these regulations, federal agencies are required to "identify or cause to be identified any National Register or eligible property that is located within the area of the undertaking's potential environmental impact and that may be affected by the undertaking" (§ 800.4(a)) (emphasis added), and, in consultation with the SHPO, apply the "National Register Criteria" to "all" valuable properties located within the area of the undertaking's potential environmental impact (§ 800.4(a)(3)) (emphasis added). An effort to locate sites under the Act will not be deemed reasonable unless the agency "conduct[s] the appropriate studies" and provides the information necessary both "for an adequate review" of the effect of the proposed undertaking on a National Register or eligible property and for adequate consideration of modifications or alterations to the undertaking that can avoid, mitigate or minimize any adverse effects. Id. (See Carlos Romero-Barcelo v. Brown, No. 79- 1626 (1st Cir. Jan. 26, 1981): "Thus, the first step in satisfying an agency's obligations under the Executive Order and the regulations is to locate, in consultation with the state's officer for historic preservation, "all1 and 'any' sites that may be eligible for inclusion in the National Register.") In Aluli v. Brown, 437 F. Supp. 602 (D. Haw. 1977), reversed in part on other grounds, 602 F.2d 876 (9th Cir. 1979), the court dealt with the Navy's obligations to locate sites in the island of Kahoolawe in Hawaii. Beginning in 1976 and throughout 1977, two archaeological teams working five days a month surveyed 34 percent of the island and 90 percent of the naval target zone. Almost 100 archaeological sites had been discovered up to that time, over 30 of them on Navy property. Thereafter in 1977, the PEABODY, RIVLIN, LAMBERT & MEYERS A PROFESSIONAL CORPORATION Jose Uranga, Esq. June 19, 1981 Page Six (6) District Court in Aluli ordered the Navy to "comply forthwith" with the applicable provisions of law, "including but not limited to the continued full cooperation with the Hawaii Office of Historic Preservation in identifying, inventorying and protecting historic sites in Kahoolawe...." (437 F. Supp. at 612.) Determination of Eligibility: If a question exists as to whether the property satisfies the National Register criteria spelled out in Section 1202.6 of the regulations — and such a question certainly exists here, since the Court specifically cited and quoted from that regulation in the memorandum opinion — then the matter must be referred to the Department of the Interior for a "determination of eligibility" under Part 1204 of the regulations. (§ 800.4(a)(3).) Consultation with Advisory Council and the Public: The Forest Service must request comments and evaluation from the Advisory Council on Historic Preservation. (§ 800.4- (a) (4).) This procedure contemplates input from and participation by interested members of the public, as described in the preceding portion of this letter. As Judge Richey stated in his decision, the Forest Ser |
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