Appeals court backs climbing ban at sacred site

Tuesday, August 28, 2007  

A ban on recreational climbing at Cave Rock, a sacred Washoe site, does not violate the U.S. Constitution, a federal appeals court ruled on Monday.

In a unanimous decision, the 9th Circuit Court of Appeals said the U.S. Forest Service acted lawfully when it banned climbing at the site. The three-judge panel cited the historical and cultural importance of Cave Rock not just to the Washoe Tribe, but to the entire country.

"The fact that Cave Rock is a sacred site to the Washoe does not diminish its importance as a national cultural resource," Judge J. Clifford Wallace wrote for the majority.

The decision marks the latest in a string of defeats for The Access Fund, a climbers' group that challenged the ban. The non-profit organization lost an administrative appeal and a lower court ruling.

At issue was whether the Forest Service's management plan for Lake Tahoe, where Cave Rock is located, violates the Constitution's Establishment Clause, which bars the government from favoring one religion over another. The climbers also said the plan was "arbitrary and capricious."

The 9th Circuit rejected the constitutional claim on two grounds. On the first, the court said the Forest Service's climbing ban served a "secular purpose" because it protects the cultural, historical and archaeological features of Cave Rock.

"Historical and cultural considerations motivate the preservation of national monuments that may have religious significance to many or even most visitors," Wallace wrote, comparing Cave Rock's importance to that of National Cathedral in Washington, D.C.

Second, the court said the ban doesn't favor Washoe religious beliefs. In fact, the Forest Service rejected the tribe's contention that all activity, not just climbing, should have been covered in the management plan.

"The Forest Service's chosen alternative not only provides for general public use and access well beyond members of the Washoe Tribe, but also permits activities that are incompatible with Washoe beliefs," the opinion stated.

As for the "arbitrary and capricious" claim, the 9th Circuit rejected the argument that the ban unfairly singles out climbing over other recreational activities. The decision pointed to years of unauthorized drilling and boring by climbers at Cave Rock, which the Washoe Tribe views as a desecration of the site.

"As documented in extensive research and consultation with various community groups, rock climbing harms the physical (not necessarily geological) integrity of the rock," Wallace wrote.

This isn't the first time the 9th Circuit has backed a government policy that protects sacred sites. In September 2004, the court said the state of Arizona acted lawfully by refusing to buy materials that were mined from a sacred Hopi, Navajo and Zuni site.

"Native American sacred sites of historical value are entitled to the same protection as the many Judeo-Christian religious sites," Judge Betty B. Fletcher wrote in a decision that was cited as precedent in the Cave Rock case.

The 9th Circuit heard oral arguments in San Francisco on February 15. Audio of the proceeding is available here.

Get the Decision:
The Access Fund v. USDA (August 27, 2007) |

Relevant Documents:
Cave Rock Record of Decision (August 2003) | Environmental Impact Statement (October 2002)

Relevant Links:
Washoe Tribe - http://www.washoetribe.us
The Access Fund - http://www.accessfund.org
Cave Rock, U.S. Forest Service, - http://www.fs.fed.us/r5/ltbmu/projects/cave-rock