Implications Of Park Closure
Issue Echo Across Entire West

By William Perry Pendley

(Editor's note: William Perry Pendley is president and chief legal officer for Mountain States Legal Foundation, a public interest law firm specializing in issues of property rights and individual liberties.)

On March 10, the U.S. Court of Appeals hears oral arguments in a case with far-reaching consequences. That morning the court will be asked whether federal lands may be set aside for worship by Native Americans and, in the process, closed to all other Americans. When the Court issues its decision, it is highly likely that whatever its ruling, the issue will be heard by the U.S. Supreme Court.

The case to be heard on March 10 involves Devils Tower National Monument in northeastern Wyoming, the nation's oldest monument. Devils Tower, made famous in Steven Spielberg's Close Encounters of the Third Kind, is not only a popular tourist stop on the way to Yellowstone National Park, it is a world famous climbing destination.

In 1995, the National Park Service, which manages Devils Tower, acceded to demands by Native Americans to close Devils Tower to all climbers during the month of June. The Native Americans asserted that Devils Tower is sacred, that June is the month in which worshippers would be at the monument, and that the presence of other visitors during that period would constitute a sacrilege.

A lawsuit filed by a local grassroots organization, a commercial climber and others challenged the NPS decision as a violation of the First Amendment's Establishment Clause. In 1996, a Wyoming federal district court ruled that the ban on commercial climbing did violate the Establishment Clause. However, in 1998, the same court ruled that a so-called "voluntary ban" on recreational climbing did not violate the Constitution, even though the climbers testified that they had been coerced by the NPS into not climbing.

The question before the Tenth Circuit is not novel. In 1980, the Tenth Circuit ruled that federal lands could not be closed to public access in response to the religious demands of Native Americans. In 1988, the U.S. Supreme Court issued a similar ruling in another case. Nonetheless, the Clinton administration has gone to incredible lengths either to overturn these two controlling precedents or to carve out an exception to them that would allow federal officials throughout the country to close federal land to economic and recreational activity in response to religious demands by Native Americans.

Although the Devils Tower case concerns only the ability of a relatively small number of climbers to continue to engage in a recreation they enjoy at one of the world's best sites for it, the stakes are huge. Throughout the western United States, federal land managers have closed federal land to multiple use activities solely in response to the demands of Native Americans.

Near Santa Fe, New Mexico, the U.S. Forest Service refused to permit the expansion of a very popular ski resort when Native Americans objected on religious grounds. In Wyoming, Forest Service lands long classified as open for timber harvesting have been closed after some Native Americans asserted the area could be seen from a sacred site, the Medicine Wheel. In Utah, certain trails at Rainbow Bridge National Monument have been closed to all but Native Americans. And in Montana, the Forest Service refused to permit oil and gas leasing in an area with vast hydrocarbon potential after Native Americans asserted that the land was sacred, imbued with what one federal official called "a sacredness of place." Worse yet, the recent announcement by the Clinton Administration that hundreds of thousands of acres in that area would be closed to economic activity used the same "sacredness" language.

Federal officials say the land closures are only a way to show "respect" for Native American religion. Constitutional experts say the land closures are a violation of the Establishment Clause, which bars government from "taking sides" on religion. Cynics say that federal officials have found one more way of excluding the public from federal land. On March 10, the Tenth Circuit will begin the process of answering who, at least for now, is right.