The Pluralism Project at Harvard University

For more up to date information visit, the United States Forest Service Newsroom or the Access Fund.

Introduction

On December 15, 2003, rock climbing advocates, including the non-profit organization the Access Fund, filed a lawsuit in federal court claiming that the United States Forest Service's (USFS) ban on rock climbing at Cave Rock was an establishment of religion and, therefore, unconstitutional. Like the famous 1998 case of Bear Lodge Multiple Use Association v. Babbitt, the suit over Cave Rock also pits rock climbers against Native American spiritual practices. Cave Rock is a 360-foot high, 800-foot wide dome which lies on the southeastern shore of scenic Lake Tahoe. Named for the small cave on its south face, the formation arose three million years ago when volcanic rock broke through the granite surface of the Sierra Nevada Mountain Range. Members of the Washoe community, who have lived in the Lake Tahoe region for over 9,000 years, consider the site to be their spiritual birthplace. As such, it is governed by a series of strict taboos. Nevertheless, these prohibitions have been largely ignored by non-Native Americans. Cave Rock is a popular recreation spot especially for an advanced form of rock climbing called sport climbing. The current dispute over the allowable activities on Cave Rock began in 1996 when it was determined eligible for inclusion on the National Register of Historic Places. As a result of the demarcation, the USFS, who has jurisdiction over the formation, is required to guard the site against deterioration. After commissioning an Environmental Impact Study (EIS) to determine the best way to protect Cave Rock, a decision was made by the regional Forest Supervisor in July of 2003 to immediately ban all uses of the site which commenced after 1965, which triggered a lawsuit brought by climbing advocates.

Religious Significance of Cave Rock

The Washoe people identify Cave Rock as “De’ek wadapush,” or Standing Grey Stone. Many within the tribe believe that “the health and integrity of their society may be jeopardized if traditional practices are not observed there.” The site is considered sacred by the Washoe for a number of reasons. Not only does a large man-eating bird pluck his victims from the formation, but it is also the gathering place of “me’tsunge” or water babies. These small beings give knowledge and power which can be used mainly for medicinal purposes. First encountered by tribal ancestors when Lake Tahoe was formed, the water babies continue to grant information to trained Washoe medicine men. The two most prominent of these Washoe doctors have been Weleiwkushkush and Henry Rupert. Rupert, who died in 1965, was famous for incorporating new practices into Washoe tradition and is the subject of “The Development of the Washoe Shaman,” an ethnographic work published in 1967. As a result of its spiritual importance, the Washoe have a number of taboos concerning the use of Cave Rock. The most central rubric states that only Washoe medicine men are allowed on the formation. Since “the rock has power that will affect people that visit it or the rock’s power will be affected by the visitors,” an untrained individual on the site will cause harm to both him/herself and the Washoe people. Interestingly, the Washoe believe that more problems result from the presence of rock climbers on Cave Rock than from cars driving in the tunnels built through it. While the cars pass through quickly absorbing little power, the climbers gain much from intimate contact with the rock. Therefore, according to members of the tribe climbers, not cars, threaten the traditional Washoe spiritual system.

Rock Climbing and other Recreational Activities on Cave Rock

Cave Rock is host to a variety of recreational activities. These include hiking, picnicking, fishing, and stargazing. However, the most popular endeavor on the site is a type of rock climbing called sport climbing. For sport climbers, Cave Rock is a unique place. Sport climbing requires complicated routes and relies on permanent anchors fixed to the rock, especially bolts, for protection. Due to the difficulty of the climbing on Cave Rock, its ready access and wonderful views, and the year round good weather in the Lake Tahoe area, the formation has become a "sport climbing destination.” The first permanent bolted climbing route was set up on Cave Rock in 1987. Now, there are 47 such paths.

Cave Rock as National Historic Property

Although the members of Washoe Tribe had long been pressing for a ban on recreational activities at Cave Rock, the Forest Service did not consider such an action until the mid to late 1990’s. During this period, the USFS, with the help of the Nevada State Historic Preservation Office, determined that Cave Rock qualified as a National Historic Property under three criterion of the 1966 congressional National Historic Preservation Act. As a result of the wagon trails and highway running through the site and the deposits on shamanic artifacts, woodrat middens, and dendrochronological specimens on the floor of the cave, Cave Rock was deemed an historic transportation district and a valuable archeological resource. More important, however, was the decision that Cave Rock could be demarcated as a Traditional Cultural Property. In 1994, the Department of the Interior clarified that Native American religious sites, such as Cave Rock, could be qualified as historic places. The bulletin for the National Register explained that “properties can be listed in or determined eligible for the Register for their association with religious history ... if such significance has ‘scholarly, secular recognition’.” Though Cave Rock was indeed imbued by the Washoe Tribe with a spiritual importance, the USFS determined that it is the “extensive array of historic, cultural ... and traditional values that are historic rather than religious in nature” which made the formation significant.

Once a particular site is deemed eligible for the National Register, it must be preserved in its historic form. First, however, it is necessary for the body governing the property to determine when the historical period for it has ended. While the average historical period is 50 years before the present, the historical period at Cave Rock was defined as complete after 1965, the year Henry Rupert died. As federal agencies are required to act “as responsible stewards of our Nation's resources,” they must ensure that no activities commenced on a site after the historic period ended cause adverse effects. The Forest Service determined that rock climbing at Cave Rock qualified as such an endeavor since it “pose[d] a threat to the integrity of the Traditional Cultural Property.” In order to determine possible ways of mitigating the effects of the activity at Cave Rock, the USFS commissioned an Environmental Impact Statement (EIS).

Findings of the Environmental Impact Study

The Final Environmental Impact Study presented in October of 2002 suggests six different ways that the Forest Service can balance preservation and public activity on Cave Rock. The measures vary in the degree to which public use of the site is restricted. Though the first alternative is to make no change in policy, the EIS makes quite clear that USFS action is required in order to limit the negative effects that activities such as rock climbing are having on Cave Rock. While earlier drafts of the EIS recommend alternative two, the final EIS sets alternative six as the best course of action for the United States Forest Service. The different measures are as follows:

Alternative 1: Alternative one recommends that the present set of guidelines over activity at Cave Rock continue. This no action option is a required part of every environmental impact statement by the National Environmental Protection Agency.

Alternative 2: This alternative would limit but not end rock climbing and other recreational uses on Cave Rock. It would require that a handful of climbing routes be eliminated, all bolts and anchors painted to blend in with the rock, and no new paths built on Cave Rock. As such, this choice is a compromise between alternative one and alternative six.

Alternative 3: The adoption of alternative three would result in the phasing out of sport climbing over a six year period. Every year approximately 50 bolts would be removed and the holes filled. Once this period has ended, only traditional types of rock climbing would be allowed. No other restriction would be made on recreational activity.

Alternative 4: Alternative four suggests that Cave Rock be a site used only by the Washoe. All individuals and activities not associated with the tribe would be barred from the property. This includes any spiritual uses of the rock which are non-traditional.

Alternative 5: This alternative is a more rapid version of choice three. While sport climbing would be phased out over a three year period, other endeavors on the site would be permitted provided that they had occurred there prior to the end of the historic period.

Alternative 6: As previously stated, alternative six is recommended in the final EIS. As a result of the harm it causes to the Cave Rock site, sport climbing would be banned immediately. All other activities deemed not consistent with the historic period would also be prohibited. This alternative was added onto the EIS after earlier drafts had already been released.

The Decision of the USFS

The final decision of how to balance preservation and recreational activity at Cave Rock fell to Maribeth Gustafson, Forest Supervisor for the Lake Tahoe Basin. When Gustafson took this post in 2000, initial versions of the EIS had already been released and a number of public hearings had been held to discuss the findings. Alternative two was, at that point, the recommended option. Nevertheless, Gustafson decided to reanalyze the issue, after which she came to the conclusion that the five alternatives proposed in the earlier drafts of the EIS did not yield a good compromise between ensuring the integrity of the site and non-harmful activities. Therefore, she proposed alternative six, the option eventually accepted by the USFS.

The Argument of the Climbing Advocates

In order to reach her final assessment, Gustafson approached the matter at Cave Rock in a logical and straightforward manner. After confirming with a number of experts that Cave Rock did indeed qualify for the National Historic Register and was at risk due to modern recreational activities such as sport climbing, she realized that the issue was “a conflict between resource values and user impacts.” Therefore, Gustafson applied the management plan for the USFS division at Lake Tahoe Basin which explicitly ranked preservation of historically significant properties as a higher priority than outdoor recreation facilities, a stance in line with the National Historic Preservation Act. It was then clear to her that “adequate measures had [to be] taken to protect the cultural resources.” Using this fact as her guiding principle, Gustafson considered the alternatives. Since options one and two did little or nothing to limit rock climbing, Cave Rock would continue to be degraded. Similarly, Gustafson found that although alternatives three and five would eventually lead to a ban on sport climbing, they would “allow adverse impacts to continue during a phase-out period.” Alternative four, on the other hand, would allow for cultural preservation. Nevertheless, it would require the abolishment of all non-native uses of Cave Rock including the highway system, an action not in the power of the USFS. For these reasons, none of the given alternatives were acceptable to Gustafson. As such, she proposed and recommended alternative six, an option which banned climbing but allowed all activities on Cave Rock which are consistent with the historical period before 1965.

The Argument of the Climbing Advocates

Rock climbing advocates, headed by the non-profit organization the Access Fund, believe that the alternative chosen by Gustafson and supported by the USFS is not legal. These climbing supporters do recognize the importance of Cave Rock to the Washoe Tribe. Therefore, they support a voluntary closure program at the site, similar to the one enacted at Devils Tower. Nevertheless, they are of the opinion that the present plan for Cave Rock not only violates the First Amendment of the United States Constitution, but misapplies the National Historic Preservation Act and unfairly singles out the activity of climbing. As such, they have filed suit against this USFS action in Federal Court. The three part appeal of the climbers can best be understood by looking at each of the claims individually:

Violation of the First Amendment- According to the climbing advocates, alternative six is a violation of the Establishment Clause of the First Amendment. The clause states that “Congress shall make no law respecting an establishment of religion,” and has been applied by the Supreme Court using the Lemon test. Under the precedent set in Lemon v. Kurtzman, a governmental act is unconstitutional if it is not intended for a secular purpose, has the primary effect of furthering religion, and involves an excessive government connection to religion. The plaintiffs in the matter of Cave Rock argue that alternative six violates all three of Lemon’s requirements. They believe that the inclusion of Cave Rock on the National Register is “a pretense to restrict otherwise lawful conduct.” Since the Washoe do not give the site a non-religious purpose, the ban is meant to further their spiritual practices. As such, the prohibition against climbing does not have a secular purpose and has the principal effect of advancing religion. Additionally, the implementation of the ban would “coerce the public ... to support [Washoe religious] interests” by not allowing free access to Cave Rock. This would result in a government entanglement with religion.

Misapplication of the National Historic Preservation Act- Maribeth Gustafson argues that because sport climbing has an injurious effect on a Traditional Cultural Property, the activity must be limited. The climbing advocates disagree on both grounds. First, they contend that rock climbing does not threaten Cave Rock’s inclusion on the National Historic Register. As proof, they cite the fact that the property was approved for the list in 1998, years after climbing had begun and permanent routes laid down. Even if it does lead to degradation, however, the NHPA does not require the USFS to ban the activity. Instead, the Act only calls for a government agency to “consider any adverse effects,” not combat them. Through such a use of the legislation, the climbing supporters worry that the USFS will be setting a precedent which threatens climbing sites across the country.

Improper Discrimination Against Climbing- Since the climbing advocates do not agree that their activity causes any more harmful effects to Cave Rock than other recreational uses, they are of the opinion that the USFS is unfairly singling them out by choosing 1965 as the end of the historic period for the site. The plaintiffs believe that this date is arbitrarily chosen as it does not represent a critical date in the history of Cave Rock. By synthetically constructing a date which would lead to the prohibition of climbing, “the USFS is acting beyond its authority,” and, therefore, “manag[ing] by caprice.”

Conclusion

The legality of the Forest Service’s ban on recreational activities commenced after 1965 was decided by the federal District Court for the District of Nevada on January 28, 2005. The judges examined whether Cave Rock was correctly deemed eligible for the National Register, and the manner in which Maribeth Gustafson applied the National Historic Preservation Act. The decision in favor of the USFS resulted in the implementation of the FEIS’s alternative six. "I am gratified with the decision and for the opportunity to finally put an effective management strategy into effect for this important historic resource and Tahoe landmark,” said Maribeth Gustafson. On February 28, 2005, Maribeth Gustafson issued the Forest Service Order banning climbing on Cave Rock; however, the order allows non-invasive activities like hiking, picnicking, and sightseeing, on a day-use basis. Washoe Tribal Chairman Brian Wallace was very pleased by the decision and described Cave Rock as "one of the linchpins in the cosmology of the tribe." This statement comes as all the pins and bolts which climbers pounded into Cave Rock will be removed under the new management plan. However, as of March 30, 2005 the Access Fund had filed to appeal the decision of the Federal District Court to the Ninth Circuit Court of Appeals, and the appeal is pending.

Drafted by Robert Stern, edited and updated by Nate Chappelle.