The Access Fund, a rock climbing advocacy group, appealed a decision of the District Court for the District of Nevada upholding the United States Forest Service's (USFS) ban on rock climbing at Cave Rock. Cave Rock is a large rock formation on Lake Tahoe's southeastern shore, located partially within a National Forest. In 1999, USFS banned rock climbing as part of a new management plan to protect the site's cultural and historic resources. The Access Fund sued in federal district court, asserting that 1) the USFS climbing ban violated the Constitution's Establishment Clause[1] and 2) USFS's action was arbitrary and capricious under the Administrative Procedure Act (APA).[2] On cross-motions for summary judgment, the district court rejected both assertions and ruled in favor of USFS.[3]

On appeal, the Ninth Circuit affirmed the district court's rulings. The Ninth Circuit reviewed the district court's decision de novo, interpreting facts in a light most favorable to the plaintiff.[4] Under the APA, the Ninth Circuit could only set aside USFS's decision to ban climbing at Cave Rock if the agency acted arbitrarily or capriciously.[5]

The Washoe people are Native Americans who have lived in the Lake Tahoe region for more than 1500 years. To the Washoe Tribe, Cave Rock is a sacred religious site and a symbol of the Tribe's cultural identity. The Washoe view their well-being as tied to the integrity of Cave Rock, and traditional Washoe assert that the mere presence of persons other than Washoe practitioners at the rock "endanger[s] the lives of all."[6] The site also has historic and archeological significance, arising in part because many Washoe doctors visited the site. Further, as a travel corridor where roads of generations past and present intersect, Cave Rock offers unique insight into American transportation history.[7] In 1996, USFS declared Cave Rock as eligible for inclusion in the National Register of Historical Places as "a traditional cultural property."[8]

Cave Rock and the surrounding area have long been popular for recreational uses such as hiking, picnicking and boating. Recreational rock climbing at Cave Rock began in earnest in the late 1980's, and its overhanging cliffs proved an ideal site for "sport climbing." Sport climbing is a type of rock climbing that requires fixed anchor points on the climbing surface. To create these fixed anchor points, sport climbers drilled metal bolts into the face of Cave Rock. The Washoe believe the climbers' acts deface their sacred site. In 1998, USFS and the Keeper of the National Register expressed concern that the climbers' activities affect the cultural and historic value of Cave Rock.

In 1999, shortly after the determination that Cave Rock merited inclusion on the National Register of Historic Places, USFS began developing a new management plan for Cave Rock. After issuing a draft Environmental Impact Statement and considering public comment-including comment from the Washoe and rock climbers-USFS released its Final Environmental Impact Statement (FEIS). The top three goals of the new management plan were 1) protecting Lake Tahoe's water quality, 2) protecting threatened and endangered species, and 3) preserving significant cultural resources.[9] Recreational use ranked much lower on the list. The preferred proposal in the FEIS banned all rock climbing but permitted "non-invasive recreation consistent with the historic period, such as hiking, picnicking, stargazing, boating, and fishing"[10] The climbing ban stemmed from the USFS's concern that rock climbing had a detrimental impact on the cultural and historical heritage of Cave Rock. The FEIS noted the importance of Cave Rock to the Washoe people but emphasized that the reason for the climbing ban was to protect Cave Rock's historic and cultural value. After considering an additional round of public comments, the Forest Service formally adopted the preferred proposal.

On appeal, the Ninth Circuit affirmed the District Court's holding that the climbing ban did not violate the Establishment Clause[11]. The Ninth Circuit applied the Lemon test,[12] whereby government action violates the Establishment Clause if "(1) it has no secular purpose; or (2) its principal effect is to advance religion; or (3) it involves excessive entanglement with religion."[13]

First, the Ninth Circuit held that the climbing ban was enacted pursuant to a secular purpose of preserving Cave Rock as a traditional cultural property. In reaching this conclusion, the court acknowledged that, before adopting the climbing ban, USFS reviewed over 1400 comments, and the FEIS analyzed "each proposal's impact on geology, heritage resources, land ownership, climbing, recreation, social practices, and wildlife."[14] Moreover, the decision was consistent with USFS policy of preserving the site's historic and cultural value. Finally, the court noted that even if Cave Rock's significance arises partially from Washoe religious beliefs and USFS was motivated in part to mitigate interference with these beliefs, this motivation alone does not defeat the USFS's secular purpose to protect a national cultural resource.

Second, the Ninth Circuit held the climbing ban did not endorse Washoe religious beliefs. The court noted that the adopted proposal actually conflicted with some Washoe religious beliefs. The Washoe favored an alternative proposal that denied access to Cave Rock to all hikers and other recreational users, not just climbers. This, the court reasoned, indicated a permissible accommodation rather than an impermissible endorsement of Washoe beliefs. The Ninth Circuit also held that enforcement of the climbing ban did not entangle USFS in Washoe religion. Instead, the court suggested that the climbing ban was more properly characterized as routine regulation and monitoring of recreational activity on federal land. The Ninth Circuit concluded the ban preserved a historic and cultural site by banning rock climbing, an activity that the court concluded "has never been a legitimate historic use of the land."[15]

The Ninth Circuit affirmed the district court's holding that USFS did not act arbitrarily and capriciously under the APA when it banned climbers but not other recreational users from Cave Rock. The court emphasized that USFS performed extensive research, consulted with a broad range of users, and employed a meaningful analysis before adopting the final preferred proposal. Thus, the Ninth Circuit affirmed the district court's findings that the agency's decision was rationally based on facts and historic considerations.

Judge Wallace wrote a concurring opinion to emphasize that he believed the Lemon test was of questionable validity and did not adequately resolve the case. As an alternative, Judge Wallace viewed the U.S. Supreme Court's plurality opinion in Van Orden v. Perry[16] as offering the appropriate Establishment Clause rule to resolve the Cave Rock dispute. In Van Orden, the U.S. Supreme Court held that placement of a monument with dual religious and historic significance on State Capitol grounds did not violate the Establishment Clause.[17] Judge Wallace reasoned that under the Van Orden rule, USFS's climbing ban did not violate the Establishment Clause because the purpose was to protect the dual religious and historic significance of Cave Rock.