implications beyond the parties in this case the federal government owns thousands of acres of land throughout the united states to which many indian groups have attached religious significance this court's decision and the district court's decision will now permit the government to regulate the conduct of nonbelievers to conform to the religious beliefs of those native groups but this kind of government regulation violates the establishment clause and to explain that position and i'd like to cover three points today the climbing van is an impermissible accommodation of religion but the only reason for prohibiting all forms of climbing on all areas of cave rock is at the bottom based on a on the washoe religious clause because it conveys a message of endorsement of religion and cheer the district court found and the government has argued in this in this court that the forest service this decision is a permissible accommodation of washoe religious beliefs argument could be made that this is very close to the ten commandments case in which the supreme court civically said the lemon test would not apply indicated it's future may the question still if we go to a more general view as outlined by chief former chief justice rehnquist we would consider the issue on the basis that there's nothing wrong with a government assisting religion can't show preference if we took that position with your argument going you know i don't think so i mean our argument is that sheer the forest service by basically giving only credence to the washoe religious impact statement gave especially three reasons for banning climbing the first two reasons would joke which are secular reasons would justify a climbing ban on only a small portion of cave rock but this third reason which is their reason for banning climbing in over the entire area of cave rock is essentially grounded in washoe religious beliefs the first reason according to the forest service is that a climbing vaness necessary to protect the archaeological resource is a cave so thickly they're talking about one located in the main cave a cave rock but in the environmental impact statement for service of knowledge is that one way to mitigate the concern about that would recommend would be to begin climbing on the particular route located next to the the second reason that they gave is that climbing affects the setting and feeling of the historic transportation cord or that cave rock has been recognized for but again they're talking only about a small portion of cave rock on the west side of  an environmental impact statement the forest service says there is an old trestle trail where some climbing occurs near that trail in the presence of the climbers affects the setting and feeling of that historic area but again one way to mitigate that effect would be to ban religious significance that's not our position our position in fact is that the government could recognize places of soul the religious significance to native american groups as a traditional cultural property under the national historic preservation act the problem is when the government goes so far as to regulate the conduct of people normal users of that property based entirely on the religious views of the native group i mean here the reason climbing was determined to fact the setting and feeling of right but the reason for banning climbing in all areas of the rock in our view is based on the washer religious belief that climbers have a sustained contact with the face of the rock unlike any other user group and drain the rock of spiritual power so let me ask you that you know recreational place and in fact back and early ninety's the government had no problem with rock climbers there the only reason that they started to think about this question was because the washoe tribe alerted the forest service property is based on the washoe religious view i mean the government has has basically said that the reason rock climbing affects the traditional cultural properties is because according to the washoe the sustain intimate contact with right that is our position i think that's supported by the record that they have focused exclusively almost exclusively on climbing because that's the most bothersome to their their religious beliefs  concerns me of what we have to decide here they were clear that it wasn't just a religious issue there's historical journey a logical of cetera if it's valid on any one of those other points that we sustain the forest service no i don't think so because those secular justifications justify being in climbing and only a small portion of the rock here they've been and all climbing are all touching the face of the rock in the way that rock climbers do and in the in the final environmental impact statement where they are the forest service explains the effects of climbing on cave rock as an historic transportation cord or and then there's the section that explains the effect of it please the court sharon swindle from the department of justice representing the department of agriculture and the forest in this case the forest service has acted here to protect a site of significant cultural and historic importance it time immemorial in addition it is a site of considerable importance as a transportation district it shows four generations of road building side by side and it is a protected archaeological site would you would you respond to what council just said that if you're just dealing with the logical it would only be one small part of what's involved with the sanctions that you're putting on the entire process the archaeological  of the properties longstanding use and tie to the washo colter and that has both cultural and religious significance but its religious significance does not disable the federal government from considering that site and and acting protect its cultural importance as this court recognized in a very similar circumstance and choice of ready mix when the court recognized that protecting the integrity and the physical integrity of sites of sacred significance to native americans of secular importance to them to the nation as a whole and can be a valid secular governmental purpose to come back to the cultural part is that the cultural of the tribe the culture of the tribe it's being protectors or some other culture we received over a thousand comments at each stage a number of which a significant number of which were from non washoe people seeking additional protection for the site both federal and state historic preservation officer as as the forest service found in the environmental impact statement were also offended by the visual sight of climbers on the rock the physical integrity of the rock is damaged by rock climbing because it requires installing permanently bolt objected to some of these other uses for service and that if from moving like making taking my understanding and i am not an expert on the washoe tribe or its religious beliefs but my understanding is that they believed all uses of the site were in from a simple what they actually requested was to have ownership or possession of the property transferred to them exclusively and to be on all other uses of the site honor as a practical matter i don't believe there was non technical climbing occurring at the site my understanding is that the climbing that happened there was using bolts because of the nature of the formation it's a very vertical e there is a history dating back some decades of other public recreational uses such as picnicking hiking walking i don't believe that those uses have been frequent but they have occurred and have  occurred for decades including during the period of historic use of the site you know one of the objections to aid my access fund and one of their points when they're looking at cases where there have been a few district court cases in this area it's mandatory it changes the character i don't believe that's correct your honor the mandatory ban on climbing is because climbing is a destructive practice for a national resource it is damaging to the physical integrity of the rock it is visually intrusive in the same way that climbers are not allowed on mount rushmore it has the same effect in cannes similarly likewise peeping and it is harmful to the archaeological site and to the historic transportation district there as well as the fact that that also serves to increase the access available to wash up people and to minimise the intrusion into their use of the site is not the whom i just want to correct the government is in no way establishing a rule for one religion this area is open to anyone to come to pray any religious group who wish to come and use the site for religious practice could do so in the same way as the washoe people if someone who had no religious beliefs wanted to come and meditate on the site that would be completely permissible under the challenge section so the notion that this is some sect specific devotion of governmental property i same way that for example the toros synagogue in philadelphia has cultural and historic significance for the country or the first north church in boston from a christian derivation has a cultural and historic importance for the government as well the government can act as it has with the southwest mission churches which continue to be used as places of worship to protect those properties which as part of the cultural and historic resources of this country merit protection a dislocation and difficulty for their culture and that in itself becomes a testament to the role of native americans in our culture and history and one that i think mr analog might be the church of the transf l that the fact that a particular state action may be down primarily to the benefit of one particular religious group doesn't necessarily invalidate it and more generally in choice already makes you know as the court recognized him and in a particular instance the government may be acting to protect the site of significance to one cultural and religious group but the fact that the court the government would do the same thing to protect  sites for other religious groups or cultural backgrounds shows that the court's interest is broader and more secular and of course in this case we can point to i'm countless examples of precisely that different religious and cultural wrong has the tr texas there's a swing vote was a justice of our of the court of that sort of had a statute of limitations theory i take it fifteen hundred years would be acceptable to  those some of the individual commentators to discuss being present at the site and feeling a sense of spirituality some of the non washoe commenters if i may speak briefly to the question of accommodation i just want to respond to the argument raised by the am i cast that the accommodation here is impermissible or that the government can have no interest in accommodation because somehow the burden is being imposed by private entities just as a factual matter i believe that is incorrect a question of mixed law in fact the government owns this property the government has exclusive direction and authority to decide who gets to use the property and so it is the government's action and all i mean or not allowing rock climbing to take place that is going to be posing the burden here the argument of the story is that the government has just extended it too far and should have restricted been more restrictive and allow some type of rock claiming  the more remote areas where they won't be seen from the roads or whatever and that the area involved is so large that an accommodation could have been made with your response to the well i'm not sure that was quite the argument he was making as i understood it it was that we could have interests only in protecting the the historic transportation sections or the archaeological sections of the site but not the broader site because of its cultural  the extent he's making the variant of the argument that you've described i don't believe it's supported by the record i mean there is an extensive quite extensive administrative record here in which the forest service exhaustively catalogued the various cultural historic archaeological interests at stake exhaustively catalog the various ways that those might be protected and then you know after quite lengthy consideration of many many many comments both written comments that were submitted comments that were presented in focus groups and discussion groups with the public after you know a decade long arm decisional process came to the conclusion that this was the best way to protect first i think the government could under that accommodation work soley for religious reasons to accommodate a religious practice of this group i do believe that would be permissible but i also think that question is not before the court i think that this court has already recognized and sure are ready mix that working to preserve protect the integrity of a site which is sacred to a group but part of this nation's cultural heritage is not a religious motivation it is a secular one question thank you i could just address that at the outset the accommodation argument that was just being made our position it is clear that there is neither a government created burden that would justify an accommodation nor the kind of significant government burden that the court has held necessary in order to justify an accommodation here in fact in the final environmental impact statement in this is that the record excerpts of page sixteen and the forest service states that they have never restricted the practitioner's ability to freely express their beliefs ceremonies and traditional rites and access to the site has not been prohibited and the kind of the religious objection here is really just the presence of rock climbers and that's not the kind of burden that the courts talking about in those accommodation cases in fact and kind of you wilkinson the two thousand and five decision the burnet issue was an absolute prohibition on federal prisoners from engaging in a religious exercise in prison here the washoe have to teach you to use cave rock for religious purposes despite the presence of climbers for the last twenty years and despite the four lanes of traffic running through the rock i also want to just to briefly touch on turkey to correct one one state and i think there is evidence in the record that there is some traditional climbing that goes on a ninety's the forest service did state that they viewed rock climbing to cause an adverse effect on cave rock but they attributed that the reason for that to the washoe tribe because the washoe tribe viewed climbing to have to have an adverse effect on cave rock and in part of the record they state that there is the presence of bolt on the climbing equipment it is considered by the by the government to have no significant impact and to have no impact and that's not related to the geological impact of the rock but that the placement