United States v. Means

Decision Date09 December 1985
Docket NumberNo. CIV 81-5131,CIV 81-5135.,CIV 81-5131
PartiesUNITED STATES of America, Plaintiff, v. William A. MEANS, et al., Defendants. William A. MEANS, et al., Plaintiffs, v. James R. MATHERS, et al., Defendants.
CourtU.S. District Court — District of South Dakota

COPYRIGHT MATERIAL OMITTED

Larry Leventhal, Minneapolis, Minn., and Bruce Ellison, Rapid City, S.D., for the Indians.

Phil Hogen, U.S. Atty., Sioux Falls, S.D., and Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., for the Government.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

DONALD E. O'BRIEN, Chief Judge.

This matter involves a controversy over whether or not the denial of a "special use permit" by the Forest Service was arbitrary and capricious. The Court finds that it was and that it has the effect of discriminating against Indians who were trying to practice their religion and the decision to deny was based on a clear error of judgment. The Forest Service is directed to again review this situation in conformance with this order.

HISTORY OF THIS LITIGATION

On April 4, 1981, a group of people, mostly American Indians, gathered at Porcupine, South Dakota, a town located on the Pine Ridge Indian Reservation, and formed a caravan with the intention of traveling to and setting up a camp in the Black Hills National Forest. They established a campsite and it became known as Yellow Thunder Camp (YTC). The existence of YTC is the subject matter of this litigation.

On April 22, 1981, application was submitted on behalf of YTC members and the Lakota Nation for a special use permit to allow them to establish a religious, cultural and educational community on 800 acres of the Black Hills National Forest. Exhibit 1, p. 201. The application was revised on May 29, 1981. Exhibit 1, pp. 227-28, 233-59. The application was denied by the United States Forest Service through James Mathers, Forest Supervisor, Black Hills National Forest, on August 24, 1981, Exhibit 1, pp. 287-88, and he ordered the individuals occupying the YTC site to leave by September 8, 1981. Exhibit 1, pp. 281-82. On September 8, 1981, the members of YTC took a timely administrative appeal from the denial of the special use permit. Exhibit 0, Tabs 13, 14. The next day, September 9, 1981, the United States filed one of the instant cases, United States v. William A. Means, et al., CIV 81-5131 (D.S. D.), against the named principals of YTC requesting an order declaring that the defendants were illegally occupying the 800-acre tract and directing them to vacate the site and rehabilitate it to its natural state. In turn, on September 15, 1981, William A. Means, Gregory F. Zephier, Sr., Ron Two Bulls and Russell Means, on behalf of YTC and the Lakota Nation, brought a separate action, William A. Means, et al. v. James Mathers, et al., CIV 81-5135 (D.S.D.), against officials of the United States Forest Service contending that the order by James Mathers was illegal in that it violated the United States Constitution, the Indian Freedom of Religion Act, 42 U.S.C. § 1996, and the 1868 Fort Laramie Treaty. The complaint prayed for declaratory and injunctive relief. Each of these plaintiffs are members of the Lakota Nation1 and are, or have been, residents of the YTC. Defendants in CIV 81-5135 are officials of the United States Forest Service or the United States Department of Agriculture. James Mathers is Forest Supervisor, Black Hills National Forest, United States Forest Service. Defendant Craig Rupp is Regional Forester, Rocky Mountain Region, United States Forest Service. R. Max Peterson is Chief of the United States Forest Service. John Block is the United States Secretary of Agriculture.

Both sides moved for consolidation of the two actions and on December 7, 1981 the Court ordered the matters consolidated for trial.

After the actions were filed, the first hearing held by this Court was on October 5, 1981, in Pierre, South Dakota and pertained to Means' and others' motion for a preliminary injunction which sought to prevent the forcible removal of the members of YTC from the Black Hills National Forest. The concerns of Means and others were resolved by the parties and a Stipulation, Docket No. 19 in Means v. Mathers, CIV 81-5135, was entered which provided that the United States would not take forcible physical action designed to terminate YTC without first securing a court order.

A few days after that hearing, specifically on October 9, 1981, the administrative appeal taken from the denial of the special use permit was to be heard. However, on October 7, 1981, YTC was notified that the hearing would be stayed because of these lawsuits pending in federal district court. The Forest Service took the position that 36 C.F.R. § 211.19(b)(3) precluded administrative appeal of issues being litigated in federal district court and that the denial of the special use permit was such an issue. Means and others took the position that the administrative appeals procedure should not be stayed and filed a motion for preliminary injunction requesting this Court to declare that the Forest Service must keep its administrative appeal procedure open to them. This controversy and the dispute over the construction of a geodesic dome at the YTC site were heard by the Court in Pierre, South Dakota on December 4, 1981. In an order filed December 14, 1981, the Court denied the United States' Amended Motion for Preliminary Injunction and partially granted the motion for preliminary injunction by YTC members in that a temporary geodesic dome was allowed to be constructed. In addition, the Court denied the request by YTC to order the resumption of the administrative appeal process in regard to the special use permits.

Trial was 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 the appeal from this Court's order of November 23, 1982 directing the United States Marshals Service to pay witness fees and costs of YTC's witnesses. On December 29, 1983, a panel for the Eighth Circuit Court of Appeals affirmed that order. United States Marshals Service v. Means, 724 F.2d 642 (8th Cir.1984). The Marshals Service's motion for rehearing was granted and on August 14, 1984, the Eighth Circuit, sitting en banc, 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), and remanded the case to this Court for further proceedings consistent with its opinion.

During the afternoon of January 22, 1985, this Court held a hearing in the nature of a pretrial conference in Sioux Falls, South Dakota. The presentation of Means' and others' case began on Monday, January 28, 1985 in Deadwood, South Dakota and proceeded over nine days. On May 9, 1985, the Government presented its rebuttal case in Rapid City, South Dakota. The next day surrebuttal was presented, the taking of testimony concluded, and closing arguments presented. The parties have filed their proposed findings of fact and conclusions of law and have commented in letters to the Court on the other side's proposals. The matter is fully submitted and, pursuant to Fed.R.Civ.P. 52, the Court enters this as its findings of fact and conclusions of law.

FINDINGS OF FACT2

1. The parties agree and the Court finds that this case does not concern ownership of the Black Hills or even the 800-acre tract referred to in the special use permit application. The claims to the Black Hills under the Fort Laramie Treaty have been litigated—culminating in the case of United States v. Sioux Nation of Indians, 448 U.S. 371, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980). Instead, the present litigation concerns the right to usage of the 800 acres of land designated in the special use permit application of Means and others.

2. Purpose of YTC. The purpose behind forming YTC has been different for different individuals and has changed for some individuals over time. For a few, the initial purpose of establishing YTC was to begin reacquiring the Black Hills piece by piece. However, the dominant purpose of YTC is to provide a site for the pursuit of the traditional Lakota spirituality, culture and community life within the sacred environment of the Black Hills. Vol. XI, pp. 183-84.

3. Victoria Creek runs through the 800-acre tract. The tents and structures currently at YTC are located close to Victoria Creek and Victoria Lake. Victoria Lake was formed when Victoria Dam was constructed on the creek in 1939. Most of the dam was removed in 1978 after being severely weakened in a flood in 1972. What remains of the dam holds a small reservoir of about 0.2 acres. Exhibit 1, p. 310. This reservoir is more accurately described as a small pond rather than a lake.

4. Exclusive Use—Gate. The Government asserts that Means and others have sought to gain exclusive use of the 800-acre tract. Means and others assert that their purpose is not to exclude others for the sake of exclusiveness, but to protect the safety of those in the camp and to prevent the disruption of ceremonies.

The Court finds that YTC established a security gate and guard shack on the road leading to the camp proper. Before erecting the gate, a post with an arm that could be raised and lowered by rope, the members of YTC consulted James C. Whittekiend, who was at that time Pactola district ranger for the Black Hills National Forest. Mr. Whittekiend indicated that the Forest Service would make no objection "to the gate right at the camp where it is now." Vol. V, p. 133; Vol. X, p. 111. The gate was established for safety reasons. Vol. XI, p. 17; Vol. X, p. 111. First, the gate prevented vehicles from being driven through the camp too fast. Vol. XI, p. 17. Second, individuals who had been drinking and came to the gate were asked not to enter. Id.; Vol. XI, p. 186. Third, individuals with...

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