Legal memorandas, 1978-1983.

              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
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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
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TWELFTH noon
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CABLE ADDHtSS -EXCELSIOR"
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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
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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