▪ 9th Cir: Rock Climbing Ban at Lake Tahoe Not Motivated by Religion

In The Access Fund v. United States Dep't of Agriculture, No. 05-15585 (Aug. 27, 2007), the Ninth Circuit upheld the prohibition by the US Forest Service of recreational rock climbing at the culturally and religiously significant Cave Rock on the eastern shore of Lake Tahoe.  The rock is many things to many people:

To the Washoe Tribe, it is a site of powerful religious and cultural significance. To historians and archaeologists, it sheds light both on historical Washoe culture and on the history of American transportation. And, to rock climbers, it offers some of the most challenging climbing in the nation.

Slip op. at 10528-29.  A rock climbing advocacy group challenged the prohibition as a government establishment of religion, prohibited by the First Amendment's Establishment Clause.  Government action violates the prohibition on the establishment of religion if (1) it has no secular purpose; (2) its principal effect is to advance religion; or (3) it involves excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).  The Ninth Circuit held that the Forest Service's ban was not an endorsement of the Washoe Tribe's religious beliefs, and there was a secular purpose in banning rock climbing.  Professor Howard Friedman's summary of the issues here on his Religion Clause blog.

Opinion posted here.  The Forest Service's summary of the litigation here.  Write up from the Reno Gazette-Journal here.

Sidebar: The Ninth Circuit also recently decided a case involving a local government's ability to settle RLUIPA claims, as I posted about here.  The Establishment Clause and the RLUIPA issues are different, of course (the Establishment question going to whether the government has gone too far in accommodating religion, while the RLUIPA issue generally is whether the government has not gone far enough), but it appears that the intersection of land use and religion may be becoming a hot issue.