Transcript

IN THE SUPREME COURT OF THE UNITED STATES

RICHARD E. LYNG, SECRETARY OF AGRICULTURE, ET AL., Petitioners, v. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, ET AL.

No. 86-1013

November 30, 1987

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:05 a.m.

APPEARANCES:

ANDREW J. PINCUS, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Petitioners.

MARILYN B. MILES, ESQ., Eureka, California; on behalf of the Respondent.

PROCEEDINGS

10:05 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear for argument first this morning, Number 86-1013, Richard E. Lyng v. Northwest Indian Cemetery Protective Association.

Mr. Pincus, you may proceed whenever you're ready.

ORAL ARGUMENT OF ANDREW J. PINCUS, ESQ. ON BEHALF OF THE PETITIONERS

MR. PINCUS: Thank you, Mr. Chief Justice, and may it please the Court:

The question presented in this case is whether the free exercise clause bars the Government from constructing a road on government land in a national forest and from harvesting timber in that forest.

The site of these proposed Government actions is the northern part of the Six Rivers National Forest, which is located in Northern California.

It is important to note at the outset that this land was never contained within an Indian reservation, is not the subject of Indian treaty, and is not otherwise impressed with any Indian trust obligation.

Let me begin by briefly discussing the history of the Forest Service's decision to construct the road.

Since at least the 1930s, a series of unpaved roads through Six Rivers National Forest has linked the California towns of Gasquet and Orleans. The Forest Service concluded in the 1960s that an improved road network was necessary both for its timber harvesting program and for other purposes, and it embarked upon a plan to construct a paved road linking the two towns.

Two separate segments of the road totalling forty-nine miles have now been completed. All that remains is the construction of a six-mile paved segment that will link up the two completed segments and complete the road.

In 1977, Forest Service issued a draft environmental impact statement discussing alternative proposals for the construction of the remaining segment of the road. The comments received by the Forest Service indicated that the area had religious significance for several Indian tribes.

The Forest Service accordingly deferred its decision on whether or not to construct the road and commissioned a comprehensive ethnographic study of the Indian cultural and religious sites that were located in the area. The 423-page report, prepared at the Forest Service's direction, revealed that a portion of the Six Rivers National Forest is known to the Yurok, Karok and Tolowa Indian tribes as the "high country" and that many of these tribes' religious beliefs and rituals focus upon that area.

Journeys to the high country are an important part of the Indians' religious practices, and these journeys frequently include the performance of rituals at specific sites in the high country.

The report stated that a successful spiritual --

QUESTION: Would that include the strip where the six-mile road would be built?

MR. PINCUS: Yes. The entire --

QUESTION: Within it are sites used by the Indians for their practices?

MR. PINCUS: Your Honor, it's not clear from the record, I don't think, whether specific sites -- I don't think that the report purported to document every exact site where a ritual is performed.

For example, part of the ritual is the way one acts when -- at any time one is in the high country. So, I think from the Indians' point of view, it is leading to distinguish between the sites at which actual rituals are performed and the other sites, because I think from their point of view, the entire area is sacred.

I don't think that any of the sites, at least the principal sites, of greatest spiritual significance, those are not located where the road would be built. Those are located away from the road.

QUESTION: No, but if actually the site included the site of the six-mile road, that might have a bearing, might it not, on the extent of the burden on their free exercise rights?

MR. PINCUS: Well, Your Honor, as I said, from the Indians' point of view, I don't think they would distinguish in any way between the site. I think, as a matter of fact, the sites where rituals are performed are not -- the road is not going to go over those particular sites.

The report stated that a successful spiritual use of the high country is dependent upon and facilitated by certain qualities of the physical environment. The most important of which are privacy, silence and an undisturbed natural setting.

The Forest Service consultants concluded that construction of the road would eliminate the required natural conditions and would, therefore, seriously damage the Indians' religious beliefs.

That's why, in further answer to your question, Justice Brennan, the Indians, if they are on a site where they are conducting a ritual, the fact that another part of the high country has been disturbed or changed from its natural state is as much of a burden as if that actual site that they were standing on had been disturbed. So, they just don't make a distinction.

After considering the consultants' report, the Forest Service announced its decision regarding the construction of the road. The Service found that the completion of the road was very significant to the development of timber and recreational resources in the area and that the road would enhance the efficiency of administrative services, such as fire control.

At the same time, the Forest Service recognized the importance of the Indians' religious interests in the area. It reconciled these two opposing interests by determining to go ahead with the construction of the road, but to do so in a manner that minimized the intrusion upon the Indians' religious interests.

The Service emphasized that construction of the road would not deprive any believer of access to the sacred area, and it adopted the route alternative that was located farthest away from significant spiritual sites.

Finally, it specified mitigation measures in connection with the design of the road that would reduce the audio and visual impact of the road on the surrounding area.

QUESTION: Mr. Pincus, can I ask one factual question I was a little unclear on?

There is now an unpaved segment that joins the two roads, is that right?

MR. PINCUS: Well, it's the remaining unpaved segment that was left from the original when the entire road was unpaved, yes.

QUESTION: But is it possible today to drive from one -- from the point of origin to the point of destination by just going over six or seven miles of unpaved road?

MR. PINCUS: Well, it's not because Congress designated after the District Court proceedings in this case, Congress designated a large segment of this area as a wilderness, and what the wilderness designation does is to close the area to traffic, and the site of the paved road was preempted from the wilderness designation.

The site of the unpaved road is included in the wilderness designation. So, it can't be used anymore.

QUESTION: I see.

QUESTION: I don't understand. Do you mean if it's paved, then it isn't part of the wilderness designation?

MR. PINCUS: No. Congress specifically exempted, drew the boundaries of the wilderness designation so as to permit the construction of the road. It drew the wilderness boundaries so that they did not include the site that the Forest Service had designated for the road.

So, Congress made the decision.

QUESTION: Well, then, why couldn't a car drive today over the unpaved portion?

MR. PINCUS: Well, the paved road --

QUESTION: That's on a different location?

MR. PINCUS: It's on a different site.

QUESTION: I see.

MR. PINCUS: The route alternative that the Forest Service selected was actually farther away from the specific spiritual sites than the unpaved road was, and, so, it's a different site in that the site of the unpaved road is in the wilderness designation.

QUESTION: Mr. Pincus, while you're interrupted, I think the courts below held that the Government had failed to comply with the National Environmental Policy Act and the Clean Water Act.

MR. PINCUS: Yes, they did.

QUESTION: Now, what about that? I suppose you didn't appeal on that?

MR. PINCUS: No, Your Honor. We only sought review of the constitutional determination. What the courts did below put us in a little bit of a pickle.

We did not believe that the adverse rulings on the NEPA and the Clean Water Act questions warranted review by this Court, and we believed that we could comply with those rulings. In fact, we don't intend to challenge them.

QUESTION: Are proceedings going forward to comply with those two acts?

MR. PINCUS: Well, the Forest Service internally is working to revise its plans to comply. I don't think any public proceedings have taken place pending this Court's decision on the case.

QUESTION: And how is it that the courts below dealt with the constitutional issue in view of the fact that they had these statutory ones to rely on?

MR. PINCUS: Well, Your Honor, I can't speak for them as to why they went ahead to reach -- actually, the way they wrote their opinions --

QUESTION: So, do you think we should reach the constitutional issue, Mr. Pincus?

MR. PINCUS: Well, Your Honor, we think, as we said in our certiorari petition, we believe that we can comply and we have every intention of complying with the rulings on the statutory grounds and that, really, the only --

QUESTION: Well, should we just vacate the opinion and judgment below and say you've done enough when you decided the statutory issue?

MR. PINCUS: Well, Your Honor, that is one option for the Court. We think since the issue -- in our certiorari petition, we suggest it as an alternative to granting plenary reviews. The Court might want to take that step and let the lower courts reinstate their constitutional rulings after compliance was shown.

We think now that the issue has been briefed, it would be perfectly appropriate for the Court to go ahead and decide it, and as I say, we think there is still a lot of controversy because the Government has every intention of complying with those rulings and believes it can comply, and that the only obstacle to completion of the road is, in fact, the injunction on constitutional grounds.

Let me just turn to the proceedings in the District Court and specifically the District Court's findings with respect to the free exercise issue.

What the District Court found, and this finding is at pages 64-A and 65-A of the appendix to the certiorari petition, was as follows: communication with the Great Creator is possible in the high country because of the pristine environment and opportunity for solitude found there. Construction of the Chimney Rock section of the road and/or the harvesting of timber in the high country, including clear cutting, would seriously damage the salient visual, oral and environmental qualities of the high country.

And in that effect, the Court concluded, was the burden on the free exercise of religion that implicated the guarantee in the First Amendment.

QUESTION: That timber cutting can no longer occur, though. The wilderness designation made that impossible, didn't it?

MR. PINCUS: Yes, Your Honor, to a large --

QUESTION: When did that occur? That occurred after the District Court decision, but before what? Before we got it? Before the Court got it?

MR. PINCUS: There are two administrative decisions before the Court, the road decision and then the separate decision to adopt the management plan that provided for cutting in this area of a forest.

After the District Court rendered its decision, Congress passed the statute that designated the area as wilderness and that really covers the great bulk of the area that the Court set aside under the First Amendment. So, as a practical matter, that issue is gone.

QUESTION: Well, maybe the District Court wouldn't have found the way it did concerning the degree of interference with the Indians' religious observance had it known that there was not going to be substantial logging operations in this area.

Is it clear that it would have found that without the timber?

MR. PINCUS: Well, Your Honor, I think what the District Court said, really, was that anything that changed the area from its natural pristine state was an interference with the Indians' religious beliefs.

QUESTION: Surely not.

MR. PINCUS: It didn't indicate that there was any cumulative effect.

QUESTION: Well, you know, I think the timber -- I think logging is a lot more intrusive than just a road, and I wonder whether the District Court would have reached the same result, just the one and not the both. You're not sure.

MR. PINCUS: It's possible. Certainly one option for this Court would be to vacate the decisions below and to remand them to let the District Court reconsider its decision, but I think that the tenor of the opinion of the District Court and of the Court of Appeals, which, of course, was decided after the wilderness designation and took account of the wilderness designation, is that the wilderness designation didn't make any difference.

The Court of Appeals, in fact, specifically said in its opinion that it recognized that logging would become much less significant because of the wilderness designation on page 9-A of the appendix to the certiorari petition, but it indicated that that did not alter its conclusion that the adverse impact from construction of the road was sufficient to constitute a burden on free exercise rights.

I guess that discussion is at 9-A and 10-A of the opinion.

QUESTION: It's also true, just noticing on page 8-A, that they talk about the activity of the logging and all as part of what is destructive, the very core of the Indian practices.

MR. PINCUS: Yeah. The 8-A is a quote. That is a quote of the District Court's finding.

QUESTION: Correct. And they agreed with that finding as the basis for their analysis. It seems to me if you take the logging out, you both lessen the impact on the Indians and you lessen the Government justification. I mean, it kind of helps both sides or hurts both sides, but it's a different case without logging than it is with logging.

MR. PINCUS: Well, Your Honor, as I say, the Court is certainly free to remand it. I think that really the basis of the opinions below really was that any interference, the road alone was enough, but that the Court --

QUESTION: Let me just ask this then. Before the designation of the wilderness area, had an unpaved road that went through here, was there traffic on that road from time to time?

MR. PINCUS: Yes. There was.

QUESTION: So that if you have nothing but a road and no logging, you've had it in an unpaved pasture and apparently the Indian religion survived that, and the only difference, according to your view, I guess, is you changed it from unpaved to paved.

MR. PINCUS: Well, I don't want to speak for the Indian Respondent, but I'm sure they can speak to that.

QUESTION: No.

MR. PINCUS: The record indicates that part of the burden was at least that the paved -- the actual physical changing of the landscape by paving, by having a paved road there, and the increase in traffic, if the Court wants to remand for reconsideration to the District Court, that's certainly an option, although, as I say, the Court of Appeals -- the wilderness designation happened before the Court of Appeals issued its decision and it, with that fact before it, upheld the determination that there was a burden on free exercise rights.

Let me turn now to the constitutional --

QUESTION: Other Court of Appeals decisions on the same point?

MR. PINCUS: The other Court of Appeals decisions holding that land management activities --

QUESTION: The --

MR. PINCUS: Well, Your Honor, we think that the Courts of Appeals really are in a bit of a disarray as to exactly what the right legal approach is when confronted with these questions. Some courts have held that an injunction in favor of the Indian religious claim would constitute an establishment of religion. Other courts have applied a test that looks to whether the particular religious site -- well, no, Your Honor, this is the only Court that has ever -- the only Court of Appeals that has ever come out in favor of the Indians.

The threshold question on the constitutional issue presented in this case is whether the construction of the road and the adoption of the management plan impose a burden on the Indians' rights that calls the free exercise clause into play, and viewed from the Indians' perspective, these government actions obviously have an adverse effect on religious interests.

They eliminate the conditions necessary for effective spiritual use of an area that is very important to the Indians' religion, but the free exercise clause is not implicated whenever the Government acts in a manner that offends an individual's religious beliefs.

A believer's conclusion that government action impacts adversely upon his belief system is not by itself sufficient to trigger constitutional protection, and that was really the holding of this Court joined by eight members in Bowen v. Roy.

The Plaintiffs in Roy challenged the Government's use of the social security number to identify their daughter and they asserted that the use of that number would rob their daughter of her spirit and prevent her from attaining greater spiritual power, and despite the undisputed assertion that the Government's use of the number would cause severe spiritual harm to the Plaintiffs, the Court found no burden on free exercise rights.

We think that Roy makes clear that it's necessary to look beyond the believer's subjective assessment of the effect of government action. Some types of government actions do not infringe upon the constitutional rights, even if they have a devastating effect upon the believer's belief system.

QUESTION: Is it your position, Mr. Pincus, that the Government need not make any concessions whatever to the interests of the Indians in this case?

MR. PINCUS: Yes, Your Honor. It is our position that under the Constitution, because the Constitution does not require the Government to do anything, we think that it's certainly appropriate to do exactly what the Forest Service did in this case, which is to consider those interests heavily, to investigate them fully, and to take account of them to the greatest extent possible, consistent with the statutory framework that Congress has set up, and that's precisely what Congress mandated when it enacted the American Indian Religious Freedom Act.

What Congress specifically did not do and expressly did not do was to create an additional substantive right for Indian religious claims of this sort, and we think that the Constitution doesn't do that either.

Now, so, in addition to the believer's claim that there is subjectively -- that he finds interference with his belief system, there has to be an objective element to the government action. It has to satisfy an objective test and we think that the Court's decision in Bowen v. Roy sets forth what that objective test is.

In concluding that the Government's use of the social security number did not implicate the free exercise clause, the Court said that the clause had not been interpreted to require the Government itself to behave in ways that the individual believes will further his or her spiritual development, and the Court also observed that the clause is written in terms of what the individual cannot do -- what the Government cannot do to the individual, not in terms of what the individual can expect from the Government.

QUESTION: That sounds good, but what do you do about Sherbert, Thomas and Hobbie, all of which said that the Government cannot use its money in a way that impinges upon an individual's religious beliefs. So, you have to make welfare benefits available to people who don't want to work on Saturday or whatever.

Why is it any different when you're talking about not the Government's money but the Government's land? Is that the constitutional line between money and land?

MR. PINCUS: I don't think that's the line, Justice Scalia. I think the line is that in those cases, what the Government did was put an objective burden on the individual's choice about what course of conduct he or she was going to pursue.

The Government put a monetary price over choosing one alternative or the other, and that is an objective indicia of coercion, and that's exactly what the Court said in those opinions. It analogized what the Government had done by conditioning the benefit to direct coercive regulation, and we don't think that there's anything in the land management decisions that are at issue here that has those objective indicia of coercion. It just doesn't say anything to these individuals one way or the other about what they should do.

We think that's a very, very important line to draw in the religion context because in the religion clauses -- let me start differently.

Most of the protections of the Constitution, such as the free speech clause or the Fourth Amendment, protect objectively-identified interests. What is -- this Court can decide what is speech and it can decide what reasonable expectations of privacy are protected under the Fourth Amendment, but the Court cannot decide what religion is because the Constitution leaves that to each individual to decide for himself or herself.

The problem that is really posed by the free exercise clause is how the clause can be applied without sweeping every kind of government action under its umbrella because an individual is free to attach religious significance to anything the Government does or anything the Government fails to do, and, so, if there's no objective limit on what the clause covers, everything can be converted into a free exercise claim just by the individual believing very sincerely that that action that the Government has taken infringes upon his or her religious beliefs.

We think that's why it's especially important in this context to make clear that there's an additional objective standard that the government actions have to be measured against before the free exercise clause protections are triggered, and that objective standard, I think, is the distinction that the Court was driving at in Roy.

It's the distinction between government interference with individual conduct on one hand and individual control of government action on the other, and, really, what the clause does is shield the individual and his person and his property against government reaching in and coercively affecting his individual decisions about how to order his life and to order his property, and when the Government does that, either directly with regulation or indirectly by conditioning government benefits in a way that has the effect of regulation, then there's a free exercise violation.

But if the Government doesn't do that, if it doesn't say anything about what the individual should do or what the individual shouldn't do with his property or just does something with its own property, we don't think that that's a free exercise burden that calls the Constitution into play.

Let me just briefly say that the contrary conclusion, acceptance of Respondent's contention, would just work in dramatic, dramatic effect upon the Government's authority to regulate and control its own land. Hundreds, if not thousands, of Indian sacred sites are located on federal land. The boundaries of those sites are very amorphous and under Respondent's theory, any action taken with respect to those sites would be subject to a free exercise challenge.

The important thing is that it's not just Indian claims because the Constitution can't prefer Indian claims, Indian religious claims over other religious claims. Any individual can decide that any federal property or any federal action is significant to him and --

QUESTION: Is there anything in the record to show how long the Indians have been using this land?

MR. PINCUS: There is testimony in the record indicating the use is quite -- has been quite long, but, Your Honor, I think, --

QUESTION: Weren't they using it before we arrived?

MR. PINCUS: I don't think that the record evidence goes back that long, Your Honor. I'm not sure. It certainly goes back to the 1800s.

QUESTION: It could be so, couldn't it?

MR. PINCUS: It certainly could be, but let me say that any rule that makes the protections of the free exercise clause depends on how long a religion has been in existence is the very type of government preference for religion really that the clause is specifically designed to prevent.

It would elevate a traditional religion over a new religion and give it more protection against government action.

QUESTION: Mr. Pincus, how does your theory apply to this situation? Suppose the Court retained federal ownership in whole quantities of land which it allows people to settle on but it retains title, and it simply adopts a rule that no places of worship may be built on this federal land.

Now, that's just the Federal Government's use of its own land. It's not coercing anybody to do one thing or another. Do you think that would be constitutional?

MR. PINCUS: In your hypothetical, --

QUESTION: Let's assume the whole state of Nevada were still federally owned and that the Federal Government just says we just don't want any churches. Churches or other places of worship.

MR. PINCUS: Well, but, Your Honor, in your hypothetical, if there were people living on the land -- I assume that what would happen is there would be tenancies and people would have a lease and the lease would say you can't build -- I think that's a very different case because those are people with rights in the particular land. It may be a right that's limited, but I think that that limitation might be subject to constitutional scrutiny.

But it's a very different case, I think, where there are people who have absolutely no right in the land, and that's what we are talking about here.

QUESTION: So, you are limiting your principles. It's not the Government can do anything with its land; the Government can do anything with its land so long as it doesn't give individuals rights in the land?

MR. PINCUS: Well, no, Your Honor, I am not limiting my principle because my principle is again this protection of an individual and his own resources, and part of those resources would include the property rights that he has by virtue of his agreement with the Government.

QUESTION: Wouldn't Widmark v. Vincent and that line of cases prevent the Government from saying that we'll allow any sort of building to be built on these leased lands except a church?

MR. PINCUS: I think you're right, Your Honor. That's probably the more logical way to take care of that problem, that there would be a discrimination against religion.

Anyway, just to conclude, I think what's important to note is that this is not -- the claim that's asserted here is not a claim that can constitutionally be limited to traditional Indian religions. It really would be a claim that would be available to anyone.

I just want to briefly touch upon our alternative argument, that if the Court disagrees with our principal submission and believes that there is a cognizable burden on the free exercise of religion here, we think that the compelling interest test has to be applied in a dramatically different way to take account of the very different interests that are presented here.

First, as we've been discussing, to the extent that Respondent has stated the free exercise claim, it's a very different kind of a claim than those previously recognized by this Court, and we think, because it does intrude less into individual autonomy, is deserving of somewhat less protection.

Second, as the Court has recognized in the free speech context, the Government is entitled to somewhat more constitutional leeway when it acts in its capacity as a landowner, and we think that principle is especially weighty here because what we're talking about is not simply access, which is what is at issue in the public forum cases, but control of the management and the physical development of the land and, really, we're talking about using the Constitution to impose a much greater limitation on the Government, and we think that when those interests are factored together, the appropriate way for the test to be applied is to say that the Government's general interest in managing its land, combined with the particularized showing that the challenged decision is reasonable, should permit the government action to go forward.

We think that that standard was satisfied --

QUESTION: May I ask just one -- maybe it's kind of a silly question, but we talk about the Government interest in building land. Congress has kind of delegated the problem, I guess, to the Court to decide whether -- it hasn't really taken a position on whether the -- what is the highest official who has actually made the decision to build this road?

MR. PINCUS: The Chief of the Forest Service.

QUESTION: The Chief of the Forest Service. It hasn't even gone to the Secretary. Is he in the Interior Department?

MR. PINCUS: The Secretary intends to review that decision.

QUESTION: But is he in the same department that the Bureau of Indian Affairs is in, the Interior Department?

MR. PINCUS: No. This is Agriculture.

QUESTION: This is Agriculture. Thank you.

MR. PINCUS: I'd like to reserve the balance of my time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Pincus.

We'll hear now from you, Ms. Miles.

ORAL ARGUMENT OF MARILYN B. MILES, ESQ. ON BEHALF OF THE RESPONDENT

MS. MILES: Mr. Chief Justice, and may it please the Court:

While I will be addressing two specific points this morning, I would first like to clarify some of the factual discussion that preceded my presentation.

I think it's first important to realize that it is one site in regards to whether or not the government action is actually occurring on the site. It's one site that the record shows is used in a general sense. Different trails are used. People progress from one focal point to another, but it is not like different pews in a church. It's one area and you go from, for example, from Chimney Rock, you have to travel to the other area, and it isn't that they're independent and you can say you didn't destroy this pew and you didn't destroy this one.

I think it's clear to understand that the record establishes one area, one generalized use, and a particular pattern of religious conduct that requires a progression --

QUESTION: Does the record show, Ms. Miles, how many square miles or square feet there are involved or how long a trail in miles or yards of progression would be?

MS. MILES: The Court -- yeah. I think the record does, Your Honor, yes. In terms of evidence was established as to what constitutes this one area, and admittedly it's a large area in this particular instance, principally because geographically --

QUESTION: May I ask, Ms. Miles? Are you suggesting that if the intrusion is limited only to a mile, nevertheless, since the area is twenty-five miles, it's an intrusion against the whole?

MS. MILES: What I am suggesting is that you have to look at where the government action is occurring and what conduct is it impacting.

QUESTION: Well, now, it's occurring, I gather, only at the six-mile strip, isn't it?

MS. MILES: Right.

QUESTION: But that's an invasion of the whole site or twenty-five miles, is it?

MS. MILES: Not necessarily. Having it occurred -- sacredness, yes. Yes. That bothers and seriously goes against what they believe, but what we're proposing here is not that that's the test at all or the idea that it's disturbing the sacredness, but you've got the road going between particular sites where religious activity has to go through.

So, you have to look at where the conduct is occurring and where the government action is occurring, although any intrusion in there does offend them, but that's not the position, that's not what the court below held in terms of what you look at. You look at the serious impact that the activity will have on the conduct.

QUESTION: Well, what is the area again? Is it in square miles or linear miles or linear feet?

MS. MILES: Yeah. I think it boils down to around -- well, about 13,500 was put into the district and 17,000 is what the Forest Service has reached.

QUESTION: 17,000 what?

MS. MILES: Square -- no. Acres. I'm sorry.

QUESTION: 17,000 acres?

MS. MILES: Yes.

QUESTION: Okay.

MS. MILES: It's made up in terms of a geographic area. It's the acreage that comes from the fact that you have a multitude of religious areas and that's why it became a national district because it is so different than --

QUESTION: Well, Ms. Miles, would your clients take the position that any use that might interfere with the religious practices of your clients would mandate the kind of constitutional view that you are urging? For example, proceedings by Forest Service rangers in connection with fire protection or a Boy Scout encampment or the uses by other people of the forest area.

MS. MILES: No, Your Honor, and that claim has never been made in this case.

QUESTION: Well, wouldn't that burden the religious practices in the same way, by creating noise and disturbance and --

MS. MILES: Certainly not to the degree that the road does.

QUESTION: But it would?

MS. MILES: It would --

QUESTION: It would be a burden?

MS. MILES: It would to some degree, Your Honor. But we are not claiming. That is not a request for the relief here, and --

QUESTION: But I suppose the claim could be made in the future, that any use, including that by other non-Indians, of the Forest Service land would constitute a sufficient burden that it must be prohibited?

MS. MILES: We don't believe that if you adopt the test that is used by the 9th Circuit and the D.C. Circuit and the 6th Circuit that that would necessarily establish a claim. It is a very narrow one.

QUESTION: But it could?

MS. MILES: If --

QUESTION: Your clients might make that kind of --

MS. MILES: -- you could show that there was serious interference of the nature that is shown in this case, and I don't think that necessarily you could in the facts that you propose, Your Honor.

QUESTION: Would you help me with one other factor? We've got the logging out of the case now, but what about the situation that existed when they hit an unpaved road? Was there traffic through there that had an adverse impact on the religious practices involved?

MS. MILES: Your Honor, the unpaved road as the record shows is a jeep trail, very rarely used. While it could have some impact on it, it is not used the same way that this two-lane paved road with eighty-four logging trucks would be used. It was used primarily for administrative purposes once in awhile.

QUESTION: Well, they won't be using logging trucks in the future as I understand it.

MS. MILES: Excuse me? What?

QUESTION: There will be no logging trucks on the paved road in the future, will there?

MS. MILES: Well, certainly not to the extent perhaps because the wilderness bill has affected that, but the --

QUESTION: How do we know that there will be any more traffic on the paved road than there was on the unpaved road, and if it didn't harm the religion sufficiently when it was unpaved, why, without any logging in the case, why is there such a big difference?

MS. MILES: Well, I don't think that the assumption is correct that this road by itself, which will have some traffic or else I don't know why the Forest Service would be planning to build this road if it wasn't going to be used by anybody, it seems to be not much of a purpose, but what I would like to explain is what I tried to clarify before, that you've got practitioners, religious practitioners, under the tenets of their religion traveling from the Doctor Rock area and if you understand the particular types of activities that they undertake, it's getting into trance-like states. It's a conduct that's different than most practices, and they have to journey across to Chimney Rock, which is up above on the other side of the road.

Just having the road there will take them out of being able to have that practice. When you come across the road and it just is a physical interference and you have to stop and look to see if there are trucks coming right now or it just physically interferes with their ability to continue what has been going on for hundreds of years in that area.

QUESTION: Didn't they have to cross the unpaved road and look before they cross?

MS. MILES: The unpaved road, Your Honor, --

QUESTION: It seems to me that the difference is in the amount of traffic.

MS. MILES: The amount of traffic partly, is partly it. The other thing would come into the belief system with regards to the fact that the road is a natural road. It is a dirt road that is very rarely used and it's just part of that natural environment.

It is totally different than a road --

QUESTION: Well, it just didn't happen. The jeep trail had to be built, didn't it? I mean, the jeep trail is a prehistoric existing.

MS. MILES: It used to be a trail, an Indian trail.

QUESTION: It had to be substantially graded, I would think, to make it a jeep trail.

MS. MILES: It has been somewhat improved, Your Honor.

QUESTION: Ms. Miles, suppose the Federal Government were to set aside a whole tract of federal land, say this land is dedicated to the use of the Mormons and no one shall make any use of this land that would offend Mormon beliefs, would that be constitutional?

MS. MILES: I think that would be inappropriate, but what I think you're --

QUESTION: I didn't ask would it be inappropriate. Would it be unconstitutional?

MS. MILES: It would run most likely afoul of the establishment clause, but what I'd like to clarify, there is no set-aside in this area. This is not a set-aside. The Government is attempting to say that there's some kind of one use only by the Indian people and that is not true.

We have, in fact, in this very case, there are more non-Indian Plaintiffs who use the area.

QUESTION: My example wasn't one use only but do a lot of things, just nothing that offended Mormons.

MS. MILES: Well, this is -- if they showed that that area was central and indispensable, that is the only place in that particular --

QUESTION: Salt Lake City, Salt Lake City. The Mormons really venerate that as a very special place.

MS. MILES: Yes, but --

QUESTION: Could the state say that henceforth, Salt Lake City shall --

MS. MILES: No, Your Honor, but I don't think that that's what the 9th Circuit rule does. You have to take a look at what you're doing, you have to show factually that the particular area where the government action is occurring -- it isn't a set-aside. There's got to be an action that is interfering with the ability, seriously interfering with the ability to carry on a practice in a particular area, and your factual setting doesn't have any of those factors, Your Honor.

QUESTION: I am puzzled by one of the -- you mentioned a large number of non-Indians who also are able to come and go in this area, even during --

MS. MILES: I shouldn't say that.

QUESTION: Isn't that correct?

MS. MILES: No, that's not correct. Other people do use the area. It is a very rugged area. It's a wilderness area. There are people that use it.

QUESTION: And isn't it true that those people may be spiritually unacceptable to the people around their religious missions at the time because of their condition?

MS. MILES: That's true, Your Honor.

QUESTION: And what about -- is that a greater burden than the use of the road? I mean, it seems to me that's the same sort of thing.

MS. MILES: No. The number of people -- if you knew the geography and -- you're really talking about a place that people don't go to much. It's a very remote place. That's why the Indian people chose it partly so far away from the reservation, you know, where they live along the river. It's because it's an area that it just a remote rugged area that people do not utilize on the way that we would think of recreationally.

So, in that area, once in awhile, there will be people and that would have some interference, but it is not of the impact of what the Government proposes in this case.

QUESTION: You wouldn't suggest the Government could exclude citizens from that area who would be offensive to the Indians? I mean, --

MS. MILES: No, that is not a part of this case.

QUESTION: But you said that potentially it could be in another case. You said it wasn't raised here, but it certainly could constitute a burden, depending upon the nature and extent of the use by non-Indians of that property.

MS. MILES: Yes, but it may be a burden that we would have no relief for in a sense.

QUESTION: So, you say that the Government must keep loggers out?

MS. MILES: I'm sorry? Excuse me?

QUESTION: You say that the Government must at least keep loggers out?

MS. MILES: We say that the Government cannot undertake certain actions that would have the effect of --

QUESTION: So, you say that the place be reserved for your use rather than logging use.

MS. MILES: No, that's not true, Your Honor.

QUESTION: Would you mind if loggers came in there?

MS. MILES: And cut the trees down as proposed?

QUESTION: Yes.

MS. MILES: We say that that would interfere with the conduct of religious practices occurring there.

QUESTION: Well, that certainly is a substantial restriction in favor of religion on what the Government can do with its property.

MS. MILES: The Government -- we are asking the Government itself not to take an act that will take away from these people a religious practice that has been occurring.

QUESTION: Well, the act that you're talking about is whether loggers can come in. So, this twenty-five miles is sealed off from logging.

MS. MILES: No, that's not true, Your Honor. If you take a look at the management plan, what you're talking about is not all of that area was going to be logged. That area is a multiple use area.

QUESTION: Well, wouldn't you have the same objection to logging going on in any part of the twenty-five miles?

MS. MILES: Yes, Your Honor.

QUESTION: Well, why isn't that reserving -- why isn't that excluding loggers from twenty-five square miles?

MS. MILES: It is excluding the Government from undertaking certain types of activities in that area.

QUESTION: Well, you say that the free exercise clause forbids the Government permitting loggers to come in to that area.

MS. MILES: We say that the free exercise clause, when you show it in an area, the only place that you could practice your religion under the tenets of your religion, --

QUESTION: So, you're saying yes, that twenty-five miles is sealed off from loggers because the area is central to the practice of religious beliefs.

MS. MILES: And that the Government's act -- it would be spread out to other -- it is not that it is aimed at loggers, that the government action that is proposed when you show that it's going to seriously impact the physical ability to carry on your practice, we submit the Government cannot do that to these people.

QUESTION: I suppose if the Government decided to improve some back-packing trails or build some overnight cabins in that high country, you would have the same problem?

MS. MILES: Not necessarily. That may not be the serious interference that the court found below.

Your Honor, I'd like to address --

QUESTION: But if it were, I take it that you would think the same result should be. If the Indians said the building of these overnight cabins also offends our traditional religion, you would think the results should be the same.

MS. MILES: Your Honor, not that it offends them. If we could demonstrate to the Court that whatever that government activity is, seriously interferes with the ability to conduct the practice -- this is not just a belief case. While belief is part of it, you can't separate out. It's physical interference with the ability to conduct practices in an area where they have been conducting them long before the Federal Government even came into existence.

QUESTION: What about hunting? How about hunting by non-Indians? Is that area open in some hunting seasons to hunt deer?

MS. MILES: Yes, it is, Your Honor.

QUESTION: And I suppose that might that not seriously disturb Indian religious practices?

MS. MILES: That would be a factual determination that --

QUESTION: Well, if it were, then you would say the Government must prevent hunters from entering that area.

MS. MILES: I think what we're saying is when the Government is undertaking its action, that it's taking away from the ability to exercise your religion. That is different than when you are affirmatively asking them to do something. It may be a slight distinction, but we're asking that the Government itself --

QUESTION: If they let somebody else build the road, it would be okay. It's only that they're building the road, is that it?

MS. MILES: No, that's not true, Your Honor.

QUESTION: What about motorcycles and jeeps in that area? Do you object to any kind of vehicular traffic that could get into that place?

MS. MILES: Again, if, under a factual showing, you showed that that seriously interfered with the practice, then the problem is there may be no remedy for some of that because you would then be affirmatively asking for the Government to take action. We're not. We're saying in this very limited circumstance, do not take action that takes away from the Indians.

QUESTION: How about organized camping trips into the high country, with horses and tents, where packers bring in large numbers of people?

MS. MILES: Again, I think there would be -- there may be a burden but no remedy for the Indian people when it comes to doing affirmative -- requesting that type of affirmative relief.

Your Honor, -- excuse me?

QUESTION: Don't you think that the opinion of the Court in Bowen v. Roy addresses itself rather specifically to your free exercise claim here?

MS. MILES: Not at all, Your Honor, and that was my first point. That this case is not Bowen v. Roy, that unlike Roy, you have here government action directly reaching out where a religious conduct is occurring, and the only place that it can --

QUESTION: Well, the Roy opinion says that the First Amendment does not require the Government itself to behave in ways the individual believes will further his or her spiritual development.

MS. MILES: And I don't quarrel with that. This is not just of that belief. You've got the Government taking action that interferes with the actual practice, conduct.

QUESTION: Well, I think that is rather the implication of that language in Bowen v. Roy, and I just wonder how you get around that. The thrust of it is that the Government needn't use its own property in such a way as to account for the religious activities or beliefs of others.

MS. MILES: I don't think activities was involved in there at all, Your Honor.

QUESTION: In Roy, certainly it was. The Government was giving this individual a social security number and circulating it, you know, throughout wherever social security numbers go. That was an activity by the Government.

MS. MILES: No. I am speaking about the believer's activity. I'm sorry. That there -- in that case, you had a subjective thing.

Here, you've got actual physical conduct. There was no nexus with practice in that case at all in the opinion and here you've got actual conduct that is being interfered with by the government act, and it's not an internal act, such as that that was found in Roy, but it is an act that is occurring.

A road-building out on public land is not of the same nature of act as was found in Roy.

QUESTION: Well, if anything, the consequence asserted in the Bowen v. Roy case was perhaps more severe than in yours because the allegation was that the daughter had been deprived and robbed of her spirit by this government activity, and I would think that might even be a more serious claim.

MS. MILES: What is happening in this case, Your Honor, which is equally serious, is that these practices go to the very core of the religion for a substantially-large number of people, and if they cannot be conducted, if they have that same type of belief, but you physically would be terminating this particular religion for these people by allowing the government act out in a very public way, not in any sense the way it is in the Roy case.

Your Honor, we do admit that this case is different than the other cases, but I think there has been a principled way that the Court has approached free exercise cases, and that is by looking in each particular case whether or not the particular act that is being questioned is intended to interfere or has the effect of interfering with the ability to practice their religion.

QUESTION: What is it that you -- now that the area is a designated wilderness area, what specifically does the Government propose to do that you disagree with?

MS. MILES: Construction of the Chimney Rock section of the road.

QUESTION: Paving?

MS. MILES: Paving this two-lane road, building that road. That's correct, Your Honor.

QUESTION: And what does the Government -- why does the Government want to do -- go forward with that now that the surrounding area has been designated a wilderness area?

MS. MILES: Well, I suppose you have to ask the Government, but my understanding is that the -- although the trial court made very specific findings about the interest that would be advanced, was to increase some access for the area and --

QUESTION: Increased access to a wilderness area?

MS. MILES: Well, it was not wilderness at the time the road was proposed, Your Honor.

QUESTION: Well, I know, but if they still propose to build it, I suppose that's what it is.

MS. MILES: But the trial court specifically found that there is all the access that one needs to get to that particular area. So, that was a factual finding that had been made in this case.

If you adopt the position of the Government in this case, it would mean that native American site-specific practices, which Congress has expressly recognized in the American Indian Religious Freedom Act, will receive no constitutional protection when the Government is physically planning an act that prevents these types of practices from continuing.

We submit, Your Honor, that if the First Amendment means anything, it means that the Government cannot take away the very ability of an individual to practice his religion at the only place that it can be practiced under the tenets of their religion. If, indeed, you protect all religions under the Constitution, then this type of site-specific religion is entitled to protection when it is seriously threatened by governmental action.

QUESTION: Ms. Miles, do you rely at all on the American Indian Religious Freedom Act?

MS. MILES: We feel that that does provide substantive rights and it also provides the understanding of what Congress --

QUESTION: How does it help you?

MS. MILES: Well, we think it's a cause of action that this case could turn on, that it is a substantive right that has been violated in this case.

QUESTION: Ms. Miles, out of curiosity, how numerous are these tribes or the Indians that practice?

MS. MILES: Excuse me?

QUESTION: How numerous are these tribes or how numerous are the Indians that practice these rituals? Does the record show that at all?

MS. MILES: Yes. The record does show that, and approximately the trial court's findings that probably a 100 to a 140 people physically are undertaking the rituals on behalf of a larger community of about 4500 religious adherents. The tribes themselves are --

QUESTION: What do you mean on behalf of?

MS. MILES: Well, much as a priest does it on behalf of the larger communities, the people that go there do it on behalf of more than themselves. They are the spiritual leaders that do this on behalf of the religious community.

QUESTION: They are about a 140 and the whole community is how many?

MS. MILES: No. There are about a 140 that physically go there and undertake these practices on behalf of a larger religious community which is approximately 4500.

Now, as to the Indian people over all, if that was your question, there's about 10,000 involved.

QUESTION: You've answered the question.

MS. MILES: Your Honor, we don't contend that the right to practice the religion here is absolute, but only that it is subject to the same balancing of interests that is the touchstone of the First Amendment, when you have shown a serious interference with the ability to practice and a threat to the religion itself.

I would next like to talk about what the court below, the specific rule that is used by the 9th Circuit, that has been used also by the D.C. Circuit and the 6th Circuit, and it requires that before you have a cause of action, that the Respondent must show that the particular area where the Government's action is going to occur is central and indispensable; that is, they cannot practice this anywhere else, and that the action will seriously impair the ability to conduct these practices.

Only then is the Government required to show a compelling state interest that can't otherwise be served. The courts specifically held that showing that the area was sacred was not enough. That would be the Roy notion as far as we can, you know, believe.

Secondly, showing that the area is used for religious purposes, that is not enough. You've got to show that it's the only area that this can occur under the tenets of the religion and that the government act will, in fact, seriously interfere with the ability to conduct the practices at that area.

We submit that this is a proper balancing test for what has been shown to be a very serious infringement on the religious rights of a large number of people and would for other native Americans who practice similar religions, and that it sufficiently insulates the Government from claims of this nature and would require only when those very unique factors come together.

I wanted to clarify that. It does no good to say there's a thousand sites because that has no meaning whatsoever. One has got to look at the site being used, is it being used for religious purposes, is the Government's action occurring where the particular practice has to occur, and, so, that's a scare tactic that has no meaning when you look at it in terms of a factual case-by-case determination.

History, in fact, the cases show that while the courts have said that Indians do have First Amendment rights on those lands, it should be respected. Factually, the claims are very difficult to sustain. Not all claims, as I've noted, will be found to be religious, as in Sequoyah v. TVA. There was no use being made of that area. Not all religious practices have to be conducted at the particular site, and, so, it would not interfere with the Government's proposal at all unless you could show that, and not all land projects are going to seriously interfere with it, Your Honor.

QUESTION: Except indispensability tests --

MS. MILES: We do not quarrel with that test. We accept that test.

QUESTION: You do?

MS. MILES: Yes, we do.

QUESTION: I see.

MS. MILES: And we feel that the -- well, to lessen the protection, the constitutional protection for what are core religious practices and religious freedom here would be contrary to the whole notion that the Bill of Rights does protect this type of practice from governmental action.

In conclusion, Respondent submits that the rule used by the court below strikes a proper balance and that the other Circuit Courts have felt rather than just throwing this religion totally out on the streets, that this was one way of meeting both concerns, and we feel that it is an appropriate way that should be affirmed.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Ms. Miles.

Mr. Pincus, you have three minutes remaining.

ORAL ARGUMENT OF ANDREW J. PINCUS, ESQ. ON BEHALF OF PETITIONERS - REBUTTAL

MR. PINCUS: Just a few things, Your Honor.

First of all, with reference to the American Indian Religious Freedom Act, as we discussed in our reply brief, we don't believe that Congress created any substantive rights when it passed that statute.

The second point I'd like to make is about the Roy case and the distinction that Roy does not apply because no practice was involved there.

We think that that's a little bit of a red herring. The only link between what the Government has done in the practice here, we think, is the link that Respondents believe that their practices will just not be spiritually effective anymore. But I don't think that there are -- there are no findings of the courts below that those practices would be physically prevented by what the Government is proposing to do.

And, finally, I'd like to discuss Respondent's suggestion that the serious interference requirement will take care of the line-drawing problems that came up in her colloquy with the various members of the Court.

We think the problem with that test is it's really not an objective test. If a religious believer asserts that a government action has a serious interference with his beliefs or with what he wants to do, then that acceptance has to be -- that assertion has to be accepted by the Court.

QUESTION: The Government still wants to go ahead with this road?

MR. PINCUS: Yes, we do.

QUESTION: Paving this road?

MR. PINCUS: Yes, we do, Your Honor. The road would not only serve -- first of all, it does not only serve logging interests, it serves maintenance interests and recreational interests.

Second of all, it will also provide a conduit for logging trucks from other parts of this forest and neighboring forests to enable the logs to get to the mills. So, it still has purposes, and I note that forty-nine of the fifty-five miles have already been built.

Anyway, the serious interference test is not a real limitation, and a court can't look behind what the believer said, and, so, any believer can come into court and say just what the hypothetical posed by Justice O'Connor, that the entry of non-believers into the area offends, will make their practices impossible, and the court will have to accept that and under Respondent's theory, we submit that would be a burden on the free exercise of religion that would require the Government to show a compelling interest.

We just don't think that the free exercise clause stretches that far and we think that the Court's decision in Roy disposes of Respondent's claim here.

QUESTION: May I ask one question? I gather that you're going to have to prepare an environmental impact statement to comply with the other part of the case.

MR. PINCUS: Yes, Your Honor.

QUESTION: Will that statement contain any analysis of the extent, probable extent of use of the road and how much it will affect the environment? Presumably perhaps even the Indian practices here.

I wonder if we know enough about the facts to even apply the test your opponent relies on. You say we don't want to use that test.

MR. PINCUS: Well, Your Honor, as I said earlier, if the Court --

QUESTION: I know you say it's okay with you, but I'm just wondering, to what extent may there actually be more enlightenment on this issue by the things that must be done before you can build the road anyway?

MR. PINCUS: Well, Your Honor, there might be enlightenment, but it's really only -- it will only be effective if those changes will cause the Indian believers to withdraw their claim because if they come into court and say notwithstanding the change, these effects still burden our religion, the District Court and this Court will have to accept that claim. It can't be looked behind.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Pincus.

The case is submitted.

(Whereupon, at 10:55 a.m., the case in the above-entitled matter was submitted.)