Wilson v. Block, Nos. 81-1905

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Before TAMM and GINSBURG; LUMBARD; Richey
• Citation: 228 U.S.App.D.C. 166,708 F.2d 735
• Parties: , 228 U.S.App.D.C. 166, 13 Envtl. L. Rep. 20,861 Richard F. WILSON, et al., Appellants v. John R. BLOCK, Secretary of Agriculture, et al. The HOPI INDIAN TRIBE, Appellant, v. John R. BLOCK, Secretary of Agriculture, et al. NAVAJO MEDICINEMEN'S ASSOCIATION, et al., Appellants, v. John R. BLOCK, Secretary of Agriculture, et al. NAVAJO MEDICINEMEN'S ASSOCIATION, et al., Appellants, v. John R. BLOCK, Secretary of Agriculture, et al. The HOPI INDIAN TRIBE, Appellant, v. John R. BLOCK, Secretary of Agriculture, et al. Richard F. WILSON and Jean Wilson, husband and wife, Appellants, v. John R. BLOCK, Secretary of Agriculture, et al.
• Docket Number: 81-1956,82-1705,81-1912,82-1706 and 82-1725,Nos. 81-1905
• Decision Date: 20 May 1983

Page 735

708 F.2d 735 19 ERC 1201, 228 U.S.App.D.C. 166, 13
Envtl. L. Rep. 20,861 Richard F. WILSON, et al., Appellants
v.
John R. BLOCK, Secretary of Agriculture, et al.
The HOPI INDIAN TRIBE, Appellant,
v.
John R. BLOCK, Secretary of Agriculture, et al.
NAVAJO MEDICINEMEN'S ASSOCIATION, et al., Appellants,
v.
John R. BLOCK, Secretary of Agriculture, et al.
NAVAJO MEDICINEMEN'S ASSOCIATION, et al., Appellants,
v.
John R. BLOCK, Secretary of Agriculture, et al.
The HOPI INDIAN TRIBE, Appellant,
v.
John R. BLOCK, Secretary of Agriculture, et al.
Richard F. WILSON and Jean Wilson, husband and wife, Appellants,
v.
John R. BLOCK, Secretary of Agriculture, et al. Nos. 81-1905, 81-1912, 81-1956, 82-1705, 82-1706 and 82-1725. United States Court of Appeals,
District of Columbia Circuit. Argued Oct. 15, 1982.
Decided May 20, 1983.

Page 737

Appeals from the United States District Court for the District of Columbia (D.C. Civil Action Nos. 81-00558, 81-00481 & 81-00493).

John Paul Kennedy, Salt Lake City, Utah, with whom David B. Lee, Salt Lake City, Utah, was on the brief, for Hopi Indian Tribe, appellant in Nos. 81-1912 and 82-1706. C. Benson Hufford, Tuba City, Ariz., also entered an appearance for appellant, in No. 81-1912. Richard M. Hymas, Salt Lake City, Utah, also entered an appearance for Hopi Indian Tribe in Nos. 82-1705, 82-1706 and 82-1725.

John A. MacKinnon, Tuba City, Ariz., with whom Elizabeth Bernstein and C. Benson Hufford, Tuba City, Ariz., were on the brief, for Navajo Medicinemen's Association, et al., appellants in Nos. 81-1956 and 82-1705. Daniel S. Press, Window Rock, Ariz., also entered an appearance for appellants in No. 81-1956. C. Benson Hufford, Tuba City, Ariz., also entered an appearance for Navajo Medicinemen's Association, et al., in No. 82-1725.

Charles R. Work, Chicago, Ill., with whom Robert W. Warden, Douglas J. Wall, Flagstaff, Ariz., John A. Hodges, and Robert A. Warden, Washington, D.C., were on the brief, for Richard F. Wilson and Jean Wilson, appellants in Nos. 81-1905 and 82-1725, and amici curiae in Nos. 81-1912, 81-1956, 82-1705 and 82-1706.

Jacques B. Gelin, Atty., Dept. of Justice, Washington, D.C., with whom Patricia J. Beneke and Robert L. Klarquist, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellees. Robert D. Clark, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellees in Nos. 81-1905, 81-1912 and 81-1956.

Richard McCune Shannon, Phoenix, Ariz., and Stephen P. Kling, Baltimore, Md., were on the brief for appellee, Northland Recreation Inc.

Ellen Leitzer, Albuquerque, N.M., was on the brief, for Eastern Band of Cherokee Indians, et al., amici curiae urging reversal in Nos. 81-1905, 81-1912 and 81-1956.

Before TAMM and GINSBURG, Circuit Judges, and LUMBARD, ^* Senior Circuit Judge, United States Court of Appeals for the Second Circuit.

Opinion for the Court filed by Senior Circuit Judge LUMBARD.

LUMBARD, Senior Circuit Judge:

These appeals challenge the grant of summary judgment by the District Court for the District of Columbia which affirmed the decisions of the Forest Service and the

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Department of Agriculture to permit private interests to expand and develop the government-owned Snow Bowl ski area on the San Francisco Peaks in the Coconino National Forest just north of Flagstaff, Arizona. The appeals are brought by the Hopi Indian Tribe, the Navajo Medicinemen's Association and other Navajos, and Richard F. Wilson, et al. each of whom filed separate suits which were consolidated for trial by Judge Richey. We affirm.

The Navajo and Hopi Indian tribes are federally recognized tribes of American Indians. The Hopi reservation and most of the Navajo reservation are located in northeastern Arizona and encompass a total area of 25,000 square miles. Approximately 9,000 Hopis and 160,000 Navajos reside on the reservations.

The dominant geological formation visible from the Hopi villages and much of the western Navajo reservation is the San Francisco Peaks. The Peaks, which rise to a height of 12,633 feet, have for centuries played a central role in the religions of the two tribes. The Navajos believe that the Peaks are one of the four sacred mountains which mark the boundaries of their homeland. They believe the Peaks to be the home of specific deities and consider the Peaks to be the body of a spiritual being or god, with various peaks forming the head, shoulders, and knees of a body reclining and facing to the east, while the trees, plants, rocks, and earth form the skin. The Navajos pray directly to the Peaks and regard them as a living deity. The Peaks are invoked in religious ceremonies to heal the Navajo people. The Navajos collect herbs from the Peaks for use in religious ceremonies, and perform ceremonies upon the Peaks. They believe that artificial development of the Peaks would impair the Peaks' healing power.

The Hopis believe that the Creator uses emissaries to assist in communicating with mankind. The emissaries are spiritual beings and are generally referred to by the Hopis as "Kachinas." The Hopis believe that for about six months each year, commencing in late July or early August and extending through mid-winter, the Kachinas reside at the Peaks. During the remaining six months of the year the Kachinas travel to the Hopi villages and participate in various religious ceremonies and practices. The Hopis believe that the Kachinas' activities on the Peaks create the rain and snow storms that sustain the villages. The Hopis have many shrines on the Peaks and collect herbs, plants and animals from the Peaks for use in religious ceremonies. The Hopis believe that use of the Peaks for commercial purposes would constitute a direct affront to the Kachinas and to the Creator.

The San Francisco Peaks are within the Coconino National Forest and are managed by the Forest Service. A 777 acre portion of the Peaks, known as the "Snow Bowl," has been used for downhill skiing since 1937 when the Forest Service build a road and ski lodge. The lodge was destroyed by fire in 1952 and was replaced in 1956. Ski lifts were built at the Snow Bowl in 1958 and 1962. Since 1962 the facilities have changed very little.

In April 1977 the Forest Service transferred the permit to operate the Snow Bowl skiing facilities from Summit Properties, Inc. to the Northland Recreation Company. In July 1977 Northland submitted to the Forest Service a "master plan" for the future development of the Snow Bowl, which contemplated the construction of additional parking and ski slopes, new lodge facilities, and ski lifts. The Forest Service, pursuant to the National Environmental Policy Act, conducted public workshops and solicited alternatives to Northland's plan. The Forest Service evaluated the proposed alternatives and identified six which were feasible and represented the spectrum of public opinion. These alternatives ranged from complete elimination of artificial structures in the Snow Bowl to full development as proposed by Northland. On June 23, 1978 the Forest Service filed a draft Environmental Impact Statement evaluating the six alternatives. Between June 23 and September 30, 1978 the Forest Service solicited public opinion on the draft Environmental

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Impact Statement. Special efforts were made to solicit the views of the Hopis and Navajos.

On February 27, 1979 the Forest Supervisor of the Coconino National Forest issued his decision to permit moderate development of the Snow Bowl under a "Preferred Alternative," which in fact was not one of the six alternatives previously identified. The Preferred Alternative envisions the clearing of 50 acres of forest for new ski runs, instead of the 120 acres requested by Northland. The Preferred Alternative also authorizes construction of a new day lodge, improvement of restroom facilities, reconstruction of existing chair lifts, construction of three new lifts, and the paving and widening of the Snow Bowl road.

At the request of various persons, including certain of the plaintiffs, the Regional Forester on February 7, 1980 overruled the Forest Supervisor and ordered maintenance of the status quo. The Chief Forester on December 31, 1980 reversed the Regional Forester and reinstated the Forest Supervisor's approval of the Preferred Alternative.

On March 2, 1981, the Navajo Medicinemen's Association filed suit in the District Court for the District of Columbia, naming as defendants John R. Block, Secretary of Agriculture; R. Max Peterson, Chief Forester of the Forest Service; the Forest Service; and the United States. The complaint sought a halt to further development of the Snow Bowl and the removal of existing ski facilities. This suit was consolidated with similar suits brought by the Hopi tribe and Jean and Richard Wilson, owners of a ranch located a mile and a half below the Snow Bowl.

The plaintiffs alleged that expansion of the Snow Bowl facilities would violate the Indians' First Amendment right to the free exercise of religion, the American Indian Religious Freedom Act, the fiduciary duties owed the Indians by the government, the Endangered Species Act, two statutes regulating private use of national forest land (16 U.S.C. Secs. 497, 551), the National Historic Preservation Act, the Multiple-Use Sustained Yield Act, the Wilderness Act, the National Environmental Policy Act, and the Administrative Procedure Act.

Pursuant to expedited procedures agreed to by all the parties, numerous affidavits were submitted together with a Joint Stipulation of Material Facts. The parties filed cross-motions for summary judgment. While these motions were pending the district court on May 27, 1981 permitted Northland to intervene as a defendant. After a hearing, Judge Richey on June 15, 1981 granted summary judgment to the defendants on all issues except the plaintiffs' claim under the National Historic Preservation Act. Finding that the Forest Service had failed to...