U.S. v. Means, 87-5118

• Decision Date: 13 December 1988
• Docket Number: No. 87-5118,87-5118
• Citation: 858 F.2d 404
• Parties: UNITED STATES of America, Appellant, v. William MEANS, Mathew King, a/k/a Noble Redman, Charles Abourezk, Russell Means and all other persons occupying the location called "Yellow Thunder Camp" at Victoria Lake in the Black Hills National Forest, Appellees. William A. MEANS, Gregory F. Zephier, Ron Two Bulls, Russell Means for Yellow Thunder Camp and the Lakota Nation, Appellees, v. James MATHERS, Forest Supervisor, United States Forest Service; Craig Rupp, Regional Forest Supervisor, United States Forest Service; R. Max Peterson, Chief, United States Forest Service; Richard Lyng, Secretary of Agriculture, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 404

858 F.2d 404

UNITED STATES of America, Appellant, v. William MEANS, Mathew King, a/k/a Noble Redman, Charles

Abourezk, Russell Means and all other persons occupying the

location called "Yellow Thunder Camp" at Victoria Lake in

the Black Hills National Forest, Appellees.

William A. MEANS, Gregory F. Zephier, Ron Two Bulls, Russell

Means for Yellow Thunder Camp and the Lakota

Nation, Appellees, v. James MATHERS, Forest Supervisor, United States Forest

Service; Craig Rupp, Regional Forest Supervisor, United

States Forest Service; R. Max Peterson, Chief, United

States Forest Service; Richard Lyng, Secretary of

Agriculture, Appellants.

No. 87-5118.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 2, 1987.

Decided Sept. 28, 1988.

Rehearing and Rehearing En Banc Denied Dec. 13, 1988.

Raymond B. Ludwiszewski, Washington, D.C., for appellant.

Larry B. Leventhal, Minneapolis, Minn., for appellees.

Before BOWMAN, Circuit Judge, ROSS, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

BOWMAN, Circuit Judge.

The United States appeals from a final judgment of the District Court ordering the Forest Service to grant a special use permit to a group of Sioux Indians for use of 800 acres of the Black Hills National Forest as a religious, cultural, and educational community. The Government contends that the District Court erred in ruling that the Forest Service violated appellees' First Amendment right to the free exercise of their religion by denying them a special use permit, and in ruling that the denial of the special use permit was arbitrary and capricious within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 706(2)(A). We reverse.

I.

A band of Sioux Indians left Pine Ridge Reservation on April 4, 1981, to set up a permanent camp in the Black Hills National Forest, where they established, without notice to the Forest Service, a community called Yellow Thunder Camp (YTC). On April 22, 1981, YTC applied for a special use permit for a "religious, cultural, and educational community" on 800 acres of the National Forest. The Forest Service denied the application on August 24, 1981, and ordered the individuals occupying the YTC site to leave by September 8, 1981. A timely administrative appeal was taken.

On September 9, 1981, the United States filed an action against the named principals of YTC seeking to eject them from the 800-acre site. In turn, on September 15, the YTC principals brought a separate action against officials of the Forest Service, claiming authority to occupy the site and further claiming that the named defendants had acted unlawfully in denying YTC a special use permit. The complaint prayed for declaratory and injunctive relief. On December 7, 1981, the District Court consolidated both actions for trial. Meanwhile, on October 7, YTC was notified that the administrative appeal taken from the denial of the special use permit would be stayed because of the pending litigation. ¹ By stipulation, the United States agreed not to take forcible action to terminate YTC without first securing a court order.

Trial commenced on November 22, 1982, and proceeded until the conclusion of the Government's case two weeks later. At that point, the trial proceedings were recessed pending the outcome of an appeal from the District Court's order directing the United States Marshals Service to pay witness fees and costs of Yellow Thunder Camp's witnesses. A panel of this Court affirmed that order. United States Marshals Service v. Means, 724 F.2d 642 (8th Cir.1983). The Marshals Service's motion for rehearing en banc was granted and on August 14, 1984, we concluded "that the district court may order government advancement of such fees and expenses." United States Marshals Service v. Means, 741 F.2d 1053, 1055 (8th Cir.1984) (en banc).

Trial reconvened, and on December 9, 1985, the District Court issued its first opinion in the case, United States v. Means, 627 F.Supp. 247 (D.S.D.1985) ("Means I "). The court held that: (1) the laws, regulations, and policies of the Forest Service burden the free exercise of the Lakota religion in the Black Hills and thus violate the First Amendment; (2) the denial of the special use permit was arbitrary and capricious; and (3) Means and others were entitled to a special use permit to allow them to establish a religious camp at the YTC site. The District Court further announced that its ruling was not to be considered a "final decision" for the purposes of 28 U.S.C. Sec. 1291, and thus was not appealable. Id. at 271. To insure that the permit would be granted, the court retained jurisdiction over the proceedings and directed the parties to work out the specifics of relief within a time frame established by the court. Id. at 272.

In January 1986, YTC submitted a proposal pursuant to the court's order. ² The Forest Service treated the submission as a new special use application and formally denied the proposal. The court then issued its final order, United States v. Means, Nos. 81-5131 and 81-5135 (D.S.D. Jan. 12, 1987) ("Means II "). Incorporating by reference its previous ruling in Means I, the District Court set aside the denial of the special use permit and directed the Forest Service to issue a permit "in conformance with this Order," authorizing Means and others to construct a camp at the 800-acre YTC site. Id. at 24-25. The court denied the Forest Service's motion for a declaration that the YTC principals were illegally occupying federal land and enjoined it from "in any manner barring or impeding Means and others in this endeavor." Id. at 25.

II.

The Government contends that the District Court's ruling is based on a misreading of the First Amendment. It argues that the Forest Service's denial of the YTC special use permit does not burden appellees' right to the free exercise of their religion. Our review of this constitutional question is plenary. See Hill v. Blackwell, 774 F.2d 338, 343 (8th Cir.1985).

Religious freedom is guaranteed by the Free Exercise Clause of the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...." U.S. Const. amend. I. The Supreme Court has crafted a sequential analysis for scrutinizing claims arising under the Free Exercise Clause. In this analysis, the preliminary inquiry is whether the challenged governmental action does in fact create a burden on the exercise of the claimant's religion. See United States v. Lee, 455 U.S. 252, 256-57, 102 S.Ct. 1051, 1054-55, 71 L.Ed.2d 127 (1982). If such a burden is established, it becomes necessary to consider the nature of the burden, ³ the significance of the governmental interest at stake, and the degree to which that interest would be impaired by an accommodation for the religious practice. Compare Bowen v. Roy, 476 U.S. 693, 707-08, 106 S.Ct. 2147, 2156, 90 L.Ed.2d 735 (1986) ("Absent proof of an intent to discriminate against particular religious beliefs or against religion in general, the Government meets its burden when it demonstrates that a challenged requirement for governmental benefits, neutral and uniform in its application, is a reasonable means of promoting a legitimate public interest.") with Thomas v. Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981) ("The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.").

We conclude that appellees have not satisfied the first prong of this test--the demonstration of a burden on the exercise of religion. "The Free Exercise Clause affords an individual protection from certain forms of governmental compulsion." Roy, 476 U.S. at 700, 106 S.Ct. at 2152. The Forest Service has performed no act of compulsion to interfere with appellees' ceremonies or practices, nor has it denied them access to the YTC site for religious purposes. On the contrary, the Forest Service decision clearly states that "freedom of access to sites, use and possession of sacred objects, and freedom from interference are and continue to be preserved." ⁴

In rejecting a Free Exercise Clause challenge in Bob Jones University v. United States, 461 U.S. 574, 603-04, 103 S.Ct. 2017, 2035, 76 L.Ed.2d 157 (1983), the Supreme Court observed that the denial of "tax benefits will inevitably have a substantial impact on the operation of private religious schools, but will not prevent those schools from observing their religious tenets." The same reasoning applies here. The Government has not coerced appellees into violating their religious beliefs; nor has it compelled them, by threat of sanctions, to refrain from religiously motivated conduct or to engage in conduct that they find objectionable for religious reasons. See Lyng v. Northwest Indian Cemetery Protective Ass'n, --- U.S. ----, 108 S.Ct. 1319, 1325, 99 L.Ed.2d 534 (1988); Roy, 476 U.S. at 703, 106 S.Ct. at 2153-54. It is clear that the Forest Service has not "prohibited" appellees' free exercise rights by denying the YTC special use permit. "The crucial word in the constitutional text is 'prohibit': 'For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.' " Northwest Indian, 108 S.Ct. at 1326 (quoting Sherbert v. Verner, 374 U.S. 398, 412, 83 S.Ct. 1790, 1798, 10 L.Ed.2d 965 (1963) (Douglas, J., concurring)).

This language is particularly relevant here. Appellees seek an affirmative benefit from the Government, the imposition of a "religious servitude" upon 800 acres of a national forest. The Supreme Court, expressing its concerns about imposing such a religious servitude upon public land, noted in Northwest Indian that the Indians' religious practices "could easily require de facto beneficial ownership of some rather spacious tracts of...