FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE ACCESS FUND, 

Plaintiff-Appellant, No. 05-15585

v. D.C. No.

UNITED STATES DEPARTMENT OF  CV-03-00687-HDM

AGRICULTURE; UNITED STATES OPINION FOREST SERVICE; MIKE JOHANNS,*

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Argued and Submitted

February 15, 2007—San Francisco, California

Filed August 27, 2007

Before: J. Clifford Wallace, Richard D. Cudahy,** and

M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;

Concurrence by Judge Wallace

*Mike Johanns is substituted for his predecessor, Ann M. Veneman, as

Secretary of the Department of Agriculture, pursuant to Fed. R. App. P.

43(c)(2). 

**The Honorable Richard D. Cudahy, Senior United States Circuit

Judge for the Seventh Circuit, is sitting by designation. 

10525
COUNSEL

Laurence K. Gustafson, Ashley B. Duffie, and Jeremy K. Kernodle, Haynes and Boone, L.L.P., Dallas, Texas, and Marte

D. Lightstone, Miller Stratvert, P.A., Albuquerque, New Mexico, for the appellant. 

Sharon Swingle, Michael Jay Singer, Appellate Staff, Civil

Division; Peter D. Keisler, Assistant Attorney General; Daniel

G. Bogden, United States Attorney; Department of Justice,

Washington, DC, for the appellees. 

OPINION

McKEOWN, Circuit Judge: 

Cave Rock, a large rock formation on the eastern shore of

Lake Tahoe, is many things to many people. To the Washoe

Tribe, it is a site of powerful religious and cultural signifi10528 THE ACCESS FUND v. USDA
cance. To historians and archaeologists, it sheds light both on

historical Washoe culture and on the history of American

transportation. And, to rock climbers, it offers some of the

most challenging climbing in the nation. In this appeal, we

consider the United States Forest Service’s efforts to balance

these competing historical, cultural, and recreational needs in

developing a resource management plan for the area. After

considerable study and comment, the Forest Service banned

“the recreational activity of rock climbing” at Cave Rock. The

Access Fund, a climbing advocacy group, challenged that

decision as a violation of the Establishment Clause of the

United States Constitution and as arbitrary and capricious

under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706. 

BACKGROUND

I. FACTUAL BACKGROUND

Partially located within a National Forest, Cave Rock is a

culturally, historically, and archaeologically significant site.

Some of this significance derives from its role as a sacred site

for the Washoe people, Native Americans who have lived in

the Tahoe area for at least 1500 years. Traditional Washoe

view Cave Rock as the site of important mythological events

that are central to their cosmology. It is also a symbol of their

cultural and religious identity. 

Under traditional Washoe beliefs, Cave Rock is “the most

religious feature within the Washoe religion,” and many

Washoe compare Cave Rock to a church. Cave Rock is considered so powerful and sacred that the health and integrity of

Washoe society may be jeopardized if traditional practices are

not observed there. The Washoe believe the rock is the location of an epic confrontation that occurred during the creation

of the Tahoe landscape between water babies who figure

prominently in Washoe mythology and a small weasel brother

(a mythological ancestor of the Washoe). 

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Traditional Washoe assert that Cave Rock is to be avoided

by all people, except Washoe practitioners who have been called to “seek power or knowledge at the rock.” The presence

of others at Cave Rock, including non-Washoe, is thought to

endanger the lives of all. The cave, the top of the rock, and

the water beneath the rock are particularly sacred. 

The site is also historically and archaeologically significant.

Two Washoe doctors named Welewkushkush and Big Mike

were known to visit Cave Rock during the initial period after

Euro-American settlement. Henry “Moses” Rupert, an ethnographer and the last known traditional Washoe practitioner at

Cave Rock, also visited the site until his death in 1965. The

rock is the only Washoe site that has been subject to archaeological and ethnographic study, and it contains ancient

wooden rat middens that have paleo-environmental value. 

The rock also reflects developments in the history of American transportation. It has served as an evolving travel corridor that moved aboriginal peoples, early immigrants,

commercial freight, and tourists along the east shore of Lake

Tahoe. The rock originally formed part of a trail used prior to

Euro-American settlement; later on, settlers constructed a

trestle road around the lake side of the rock. In 1931 and

1957, two tunnels were blasted through the rock to handle the

increasing automobile traffic generated by Tahoe tourism, and

as a result, Highway 50 now runs through the rock. The Forest Service has recognized that “Cave Rock presents a unique

circumstance where four successive generations of road building are preserved in close proximity.” 

Since the late 1980s, Cave Rock has been a popular area for

rock climbing. All of the rock climbing occurs on National

Forest lands. With the advent of “sport climbing” methods,

Cave Rock’s overhanging walls have become a coveted challenge for many of the world’s best climbers. Sport climbing

is focused on shorter, very technical parts of the rock, and

Cave Rock presents some of the most difficult routes in the

10530 THE ACCESS FUND v. USDA
nation. Sport climbing requires the installation of fixed

anchors, which protect against free-falling. To that end,

climbers drilled permanent bolts into Cave Rock itself.

Climbers expanded climbing routes without Forest Service

approval both inside and outside the main cave area. 

In the early 1990s, unknown individuals added a masonry

floor and arranged rock seating in the cave without Forest

Service approval and in violation of federal regulations prohibiting resource damage to the land. The government alleges

that a group of climbers made these improvements, and the

record suggests that the flooring was added because a climber

fell and broke both of his legs. 

The Washoe consider rock climbing a desecration of Cave

Rock. Many Washoe view the placement of a single climbing

bolt as a defacement, and Washoe representatives have

repeatedly expressed concern that the intimate sustained contact with the rock that is inherent in climbing is more objectionable than the brief transitory effects of traffic passing

through the tunnels that run through the rock. 

II. REGULATORY FRAMEWORK AND AGENCY PROCEEDINGS

Because Cave Rock is located within a National Forest, the

Forest Service is authorized to develop management plans to

coordinate the multiple uses of the land and to prevent harm

to natural and cultural resources. 16 U.S.C. § 1604(e)(1); 36

C.F.R. Part 219. In 1996, the Forest Service determined that

Cave Rock was eligible for inclusion in the National Register

of Historical Places as a traditional cultural property and

archaeological site. During that time, Forest Supervisor Robert Harris determined that “technical rock climbing poses an

adverse effect to the National Register eligibility of Cave

Rock.” The Nevada State Historic Preservation Office concurred with Harris’s assessment. Although climbing may alter

the rock physically, the drilling of the rock and placement of

anchors has not weakened the structure geologically. 

THE ACCESS FUND v. USDA 10531
In 1998, the Keeper of the National Register confirmed that

Cave Rock was eligible for inclusion on the National Historic

Register as a traditional cultural property, an archaeological

site, and an historic transportation corridor. The Keeper specifically recognized changes to the rock (including those

changes wrought by climbing) affected its physical integrity,

but nevertheless concluded the traditional cultural significance and the archaeological importance of the site survived.

Shortly after the Keeper made his decision, the Forest Service began developing a new management plan for Cave

Rock. The Forest Service first implemented a series of orders

that prevented the installation of new bolts. In January 1999,

Juan Palma, a new Forest Supervisor for the area, solicited

comments at the beginning of the formal planning process for

Cave Rock required by the National Environmental Policy

Act.

The Draft Environmental Impact Statement detailed five

alternatives for managing Cave Rock, ranging from taking no

action at all to banning all access to Cave Rock except by traditional Washoe practitioners. The alternative Palma initially

preferred permitted public use, including rock climbing, with

various restrictions on new routes and bolts. 

After considering public comment, including comment

from both the Washoe and members of the climbing community, the Forest Service issued a Final Environmental Impact

Statement (“FEIS”). The Forest Service’s proposal sought “to

protect the Cave Rock heritage resource and regulate uses

there in a manner that . . . preserves the historic and cultural

characteristics that make the property eligible for listing on

the National Register.” 

In formulating a management plan for the area, the Forest

Service explained its priorities in resolving conflicts among

competing uses. Preservation of significant cultural resources

ranked third on the list of goals, subordinate only to protec10532 THE ACCESS FUND v. USDA
tion of Lake Tahoe’s water quality and protection of threatened and endangered species. A specific management practice

addressed “Cultural Resources Management.” Establishment

of outdoor recreation facilities and uses fell much farther

down the list of priorities. 

The FEIS articulated a new preferred proposal intended “to

protect Cave Rock’s heritage resources”: banning all climbing

immediately; removing all climbing bolts as soon as technically feasible and legally authorized; and removing the

masonry flooring inside the rock. This option would permit

non-invasive recreation consistent with the historic period,

such as hiking, picnicking, stargazing, boating, and fishing.

This new alternative incorporated features from many of the

previously considered proposals and did not introduce any

new features. 

The Forest Service considered the impact of each of the

various alternatives on geology, heritage resources, land ownership, climbing, recreation, social practices, and wildlife.

None of the options would have significant effects on geology, land ownership, or wildlife. 

The Forest Service found that the presence of rock climbing hardware, the activities of traditional and free climbing,

and the presence of non-historic graffiti and the masonry floor

all represented adverse effects on the site’s heritage resources.

The agency also observed that “although objectionable to

many Washoe, casual hiking, fishing, and sightseeing are consistent with the late historic period at Cave Rock associated

with [Henry] Rupert, and therefore do not effect [sic] the setting and feel of the TCP [traditional cultural property] as an

evolved property.” 

The FEIS also noted that Cave Rock is a “core element in

the Washoe culture.” In connection with a discussion of social

practices and civil rights, the Forest Service emphasized that

“[t]he fact that traditional history and culture at Cave Rock

THE ACCESS FUND v. USDA 10533
are sometimes discussed in religious terms does not diminish

the site’s historical or cultural significance to the Washoe

people.” While recognizing climbers as an important social

group that values the rock, the evaluation explained that the

elimination of climbing should not be viewed as “requiring

others to conform their conduct to Indian cultural concerns”

— rather, the recommendation served the goal of protecting

environmental, historical and cultural resources. 

After issuing the FEIS, the Forest Service again sought

public comment, and over 1400 individuals responded. Subsequent to considering these comments, the Forest Service formally adopted the preferred proposal at the final

environmental impact stage. A third Forest Supervisor, Maribeth Gustafson, emphasized that “[a]lthough [the Cave Rock

property] is spoken of in religious terms and is associated

with spiritual figures, it has significant cultural and historical

significance . . . . This significance is not based on ‘Washoe

religious doctrine’ but rather on the secularly-derived historic

and ethnographic record.” She further explained, “I have chosen the historic period up to and including the life span of

Henry Rupert (1885-1965), the historic Washoe shaman, as

the time period for management of activities at Cave Rock.

Improvement and activities that are consistent with this time

period and do not adversely affect the integrity of Cave Rock

will be allowed to continue.” Following an administrative

appeal challenging the prohibition on rock climbing at Cave

Rock, the Forest Service’s decision was affirmed. 

III. PROCEEDINGS IN THE DISTRICT COURT

The Access Fund then brought an action in federal district

court, naming the United States Department of Agriculture,

the Forest Service, and Ann M. Veneman, who was then the

Secretary of Agriculture, (collectively the “Forest Service”) as

defendants. The complaint asserted that the Forest Service’s

decision to ban rock climbing at Cave Rock (1) violated the

Establishment Clause and (2) was arbitrary and capricious

10534 THE ACCESS FUND v. USDA
under the APA. On cross-motions for summary judgment, the

district court entered judgment in favor of the government.

Citing Lemon v. Kurtzman, 403 U.S. 602 (1971), the court

held that Forest Service’s actions did not violate the Establishment Clause. The district court also concluded that the

Forest Service’s decision to ban climbing was not arbitrary

and capricious.

STANDARD OF REVIEW

On cross-motions for summary judgment, we review the

decision of the district court de novo, viewing the facts in the

light most favorable to the plaintiff. See Vernon v. City of Los

Angeles, 27 F.3d 1385, 1391 (9th Cir. 1994). We may set

aside agency action under the APA only if it was “arbitrary,

capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).

ANALYSIS

I. ESTABLISHMENT CLAUSE CHALLENGE

[1] The Access Fund’s primary contention on appeal is that

the Forest Service’s decision to ban climbing at Cave Rock

violated the Establishment Clause. The First Amendment of

the Constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof.” U.S. Const., amend. I. The Supreme Court

has counseled that “the Constitution [does not] require complete separation of church and state; it affirmatively mandates

accommodation, not merely tolerance, of all religions, and

forbids hostility toward any.” Lynch v. Donnelly, 465 U.S.

668, 673 (1984). That is, “the government may (and sometimes must) accommodate religious practices and . . . it may

do so without violating the Establishment Clause. Hobbie v.

Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144-

45 (1987). 

The Lemon test remains the benchmark to gauge whether

a particular government activity violates the Establishment

THE ACCESS FUND v. USDA 10535
Clause. Community House, Inc. v. City of Boise, No. 05-

36195, ___ F.3d ___, 2007 WL 1651315, at *10-*11 (9th Cir.

June 8, 2007) (as amended). We recognize that the Lemon test

has hardly been sanctified by the Supreme Court. Id. at *10

n.8; see, e.g., Van Orden v. Perry, 545 U.S. 677, 685 (2005)

(questioning the continued vitality of Lemon and declining to

apply it); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 319

(2000) (Rehnquist, C.J., dissenting) (“Lemon has had a checkered career in the decisional law of this Court.”). Nonetheless,

the Court has invoked Lemon in recent opinions and surely

has never expressly overruled or discarded the test. See, e.g.,

McCreary County v. Am. Civil Liberties Union of Ky., 545

U.S. 844, 859-64 (2005) (reaffirming use of purpose prong of

Lemon); Zelman v. Simmons-Harris, 536 U.S. 639, 668-69

(2002) (O’Connor, J., concurring) (reaffirming that the Lemon

test is still the central tool of analysis in Establishment Clause

cases). Accordingly, we apply Lemon here. 

[2] Under Lemon, an action or policy violates the Establishment Clause if (1) it has no secular purpose; (2) its principal

effect is to advance religion; or (3) it involves excessive

entanglement with religion. 403 U.S. at 612-13. Some cases

have also characterized the establishment inquiry as answering the question of whether the government, through its

actions, impermissibly endorses religion. Agostini v. Felton,

521 U.S. 203, 235 (1997) (adopting endorsement formulation); County of Allegheny v. Am. Civil Liberties Union,

Greater Pittsburgh Chapter, 492 U.S. 573, 592-93 (1989)

(adopting endorsement and discussing it more generally). 

In recent years, the Supreme Court often has discussed the

last two Lemon criteria together, asking whether the challenged governmental practice has the effect of endorsing religion. Recent Ninth Circuit cases take different approaches to

the continuing vitality of the entanglement prong of Lemon,

but the Supreme Court has not discussed entanglement as distinct from effect in any meaningful way in the last ten years.

Compare Community House, 2007 WL 1651315, at *11 (“In

10536 THE ACCESS FUND v. USDA
Agostini v. Felton, 521 U.S. 203, 222-23 (1997), the Supreme

Court refined the Lemon test by folding the ‘excessive entanglement’ inquiry into, and setting out revised criteria for, the

‘effect’ prong.”), with Cholla Ready Mix, Inc. v. Civish, 382

F.3d 969, 976-77 (9th Cir. 2004) (discussing entanglement as

a separate inquiry). Accordingly, we focus our discussion on

purpose and effect, with an eye to potential effects that might

result in government becoming impermissibly embroiled in

religious affairs. 

A. SECULAR PURPOSE

[3] The government easily satisfies the first prong of the

Lemon test, which asks whether the challenged government

action has a secular purpose or was taken for “the ostensible

and predominant purpose of advancing religion.” McCreary

County, 545 U.S. at 860. Here, the Forest Service acted pursuant to a secular purpose — the preservation of a historic cultural area. 

At every opportunity, the Forest Service reaffirmed its

desire to protect Cave Rock as a cultural, historical, and

archaeological monument. In 1996, more than ten years ago,

the Forest Service determined that Cave Rock was eligible for

inclusion in the National Register of Historical Places as a traditional cultural property. A traditional cultural property is “a

discretely defined property that [has an] association with cultural practices or beliefs of a living community that: (1) [a]re

rooted in that community’s history; and (2) [a]re important in

maintaining the continuing cultural identity of the community.” 43 C.F.R. § 423.2. The Forest Service simultaneously

observed that rock climbing adversely affects the National

Register eligibility of the site because the climbing hardware

undermines the physical integrity of the rock and the presence

of climbers and their paraphernalia impairs the communication of the property’s cultural significance. 

The Forest Service’s approach during its recent environmental review also reflected these secular motivations. The

THE ACCESS FUND v. USDA 10537
Forest Service held community discussions with a wide variety of individuals and groups, including members of the

climbing community and the Washoe Tribe. The public

expressed significant interest, weighing in through more than

1400 letters, emails and phone calls during an informal comment period. In evaluating the competing proposals, the FEIS

reviewed each proposal’s impact on geology, heritage

resources, land ownership, climbing, recreation, social practices, and wildlife in arriving at its final decision. While

acknowledging that Cave Rock “may be discussed in religious

terms and is associated with spiritual figures,” the Forest Service emphasized that the rock “has significant cultural and

historical significance that make it eligible to the National

Register of Historic Places. Its significance is not based on

‘Washoe religious doctrine’ but rather on the secularlyderived historic and ethnographic record.” 

[4] The Forest Service’s limitation on climbing served the

permissible secular goal of protecting cultural, historical and

archaeological features of Cave Rock. We discern no support

for the claim that the Forest Service’s decision was taken for

the predominant purpose of advancing the Washoe religion.

McCreary County, 544 U.S. at 860. And, we agree with the

Forest Service that the fact that Cave Rock also derives its

historical and cultural force in part from its role in Washoe

religious belief and practice does not counsel the conclusion

that the Forest Service acted with the purpose of advancing

religion. 

Historical and cultural considerations motivate the preservation of national monuments that may have religious significance to many or even most visitors. “Courts have long

recognized the historical, social and cultural significance of

religion in our lives and in the world, generally.” Bauchman

v. W. High Sch., 132 F.3d 542, 554 (10th Cir. 1997). Indeed,

such secular motivations lie behind the government’s protection of many religious landmarks in this country, such as “the

National Cathedral in Washington, D.C.; the Touro Syna10538 THE ACCESS FUND v. USDA
gogue, America’s oldest standing synagogue, dedicated in

1763; and numerous churches that played a pivotal role in the

Civil Rights Movement, including the Sixteenth Street Baptist

Church in Birmingham, Alabama.” See Cholla Ready Mix,

382 F.3d at 976. 

[5] To be sure, the record establishes the importance of

Cave Rock to the Washoe Tribe. But even if the ban on

climbing were enacted in part to mitigate interference with the

Washoe’s religious practices, this objective alone would not

give rise to a finding of an impermissible religious motivation. The fact that Cave Rock is a sacred site to the Washoe

does not diminish its importance as a national cultural

resource. 

This principle is best illustrated by our decision in Cholla

Ready Mix. Arizona officials refused to give Cholla Ready

Mix a permit allowing the company to sell materials mined at

Woodruff Butte to state construction projects because the

butte was an important cultural, historic, and religious site to

several Native American groups. Id. at 972. Like Cave Rock,

Woodruff Butte was also eligible for placement in the

National Register. See id. In rejecting an Establishment

Clause challenge, we held that the state had acted with a secular purpose even though it was partially motivated by the

desire not to interfere with Native American religious practices. See id. at 975-76. The same analysis applies to Cave

Rock. 

[6] Nor is there any reason to think that the Forest Service’s

secular purpose was a sham or pretext. Cf. McCreary County,

545 U.S. at 864. The Forest Service’s decision recounts the

thorough documentation of “an extensive array of historic,

cultural, archaeological and traditional values that are historic

rather than religious by nature.” Since 1996, the Forest Service has consistently embraced the view that Cave Rock is a

historical and cultural landmark worth preserving, and that

climbing threatens the cultural and physical integrity of the

THE ACCESS FUND v. USDA 10539
site. Nothing in the record indicates impermissible religious

motivation. 

B. EFFECT OF ADVANCING OR ENDORSING RELIGION

The effect prong of Lemon “asks whether, irrespective of

the government’s actual purpose, the practice under review in

fact conveys a message of endorsement or disapproval.”

Lynch, 465 U.S. at 690 (O’Connor, J., concurring); see also

Vernon, 27 F.3d at 1398. The test also considers whether nonadherents might view the challenged action as disapproval of

their religious choices. Cammack v. Waihee, 932 F.2d 765,

777-78 (9th Cir. 1991). In addressing these issues, we often

look to “the character and purposes of the institutions that are

benefitted, the nature of the aid that the State provides, and

the resulting relationship between government and religious

authority.” Agostini, 521 U.S. at 232 (quoting Lemon, 403

U.S. at 615) (discussing effect and entanglement together)

(internal quotations omitted). 

[7] As a practical matter, the climbing ban cannot be fairly

perceived as an endorsement of Washoe religious practices.

Indeed, during the public comment phase, the Washoe Tribe

favored an alternative that would have precluded all activities

inconsistent with traditional Washoe belief. This alternative

would have denied non-Washoe access to the traditional cultural property and banned hiking and other recreational uses

at the rock. 

[8] The Forest Service’s chosen alternative not only provides for general public use and access well beyond members

of the Washoe Tribe, but also permits activities that are

incompatible with Washoe beliefs. When a government action

challenged under the Establishment Clause explicitly violates

some of the core tenets of the religion it allegedly favors, such

action will typically be considered permissible accommodation rather than impermissible endorsement. Cf. Navajo

Nation v. U.S. Forest Serv., 479 F.3d 1024, 1046 (9th Cir.

10540 THE ACCESS FUND v. USDA
2007) (holding that where the government fell short of “absolutely vindicat[ing]” a religious group’s interests, the government’s action was a permissible accommodation). 

The Forest Service’s decision raises no specter that nonWashoe could credibly view the action as preferring the

Washoe religion over other religious choices. The restriction

on climbing does not reflect that the Forest Service “favor[s]

tribal religion over other religions or that [the Forest Service]

would not protect sites of historical, cultural, and religious

importance to other groups” any more than Arizona’s restriction on mining materials indicated favoritism in Cholla Ready

Mix. See 382 F.3d at 976. Nor does anything in the record

suggest that the Forest Service disapproves of non-Washoe

religious practices, or that members of the Access Fund perceive the government’s actions as “a disapproval of their religious choices.” Cammack, 932 F.2d at 778 (internal

quotations and citation omitted). Rather, the facts reflect only

that the Access Fund’s members, whatever their religious

beliefs, would prefer to continue climbing on the rock, and the

government’s policy prevents them from doing so. 

That a group of religious practitioners benefits in part from

the government’s policy does not establish endorsement. Significantly, the ban does not involve the Forest Service in any

respect in Washoe religious practice. It does not require the

Forest Service to monitor religious practice nor does it require

the Forest Service to develop expertise on Washoe religious

worship or evaluate the merits of different religious practices

or beliefs. 

The Access Fund argues that the ban will lead to the intertwining of government and religion because the Forest Service must adopt a “comprehensive, discriminating, and

continuing” practice of surveillance to ensure that the climbing restrictions are obeyed. Regulatory or supervisory oversight of recreational activities, however, can hardly be cast as

government endorsement or entanglement with religion. This

THE ACCESS FUND v. USDA 10541
type of monitoring (for example, to ensure that visitors are

picnicking and hiking rather than climbing) is no different

than monitoring to ensure that visitors are not dumping trash

at the site. Routine administrative or compliance activities do

not constitute impermissible “interference of . . . secular

authorities in religious affairs.” See Cammack, 932 F.2d at

780; see also Hernandez v. Comm’r, 490 U.S. 680, 696-97

(1989) (“[R]outine regulatory interaction which involves no

inquiries into religious doctrine . . . and no detailed monitoring and close administrative contact between secular and religious bodies, does not of itself violate the nonentanglement

command.”) (internal quotation marks and citations omitted).

Finally, we are not persuaded by the Access Fund’s reliance on two out-of-circuit district court opinions: Bear Lodge

Multiple Use Association v. Babbitt, 2 F. Supp. 2d 1448 (D.

Wyo. 1998), aff’d on other grounds by 175 F.3d 814 (10th

Cir. 1999) and National Arch and Bridge Society v. Alston,

209 F. Supp. 2d 1207 (D. Utah 2002). In Bear Lodge, the

National Park Service asked individuals to refrain voluntarily

from climbing during a month-long religious festival. 2 F.

Supp. 2d at 1450. The court implied that a mandatory ban

might violate the Establishment Clause. Id. at 1454-56. That

case differs from this one in two significant respects — in

Bear Lodge, the only reason for the closure was to facilitate

current religious practice, and the Park Service specifically

recognized that climbing was a “legitimate recreational and

historic” use of the land. Id. at 1455. Here, the ban on climbing seeks to preserve the historic and cultural value of the site,

and climbing has never been a legitimate historic use of the

land. To the contrary, the Forest Service noted that the construction of the masonry floor and installation of climbing

hardware were done without permission. 

In National Arch and Bridge, the district court in Utah

upheld a Park Service plan that asked visitors to the Rainbow

Bridge National Monument to refrain voluntarily from walking under the bridge in deference to Native American reli10542 THE ACCESS FUND v. USDA
gious beliefs. 209 F. Supp. 2d at 1224-25. The court

concluded that the voluntary nature of the request was significant, and noted that a mandatory ban might be treated differently. See id. at 1223. But, as in Bear Lodge, the ban

advanced solely sacred rather than secular goals. 

[9] We conclude here, as we did in Cholla Ready Mix, that

“the Establishment Clause does not bar the government from

protecting an historically and culturally important site simply

because the site’s importance derives at least in part from its

sacredness to certain groups.” 382 F.3d at 977. 

II. APA CHALLENGE

[10] We are not persuaded by the Access Fund’s claim that

the Forest Service’s decision to discriminate between climbers and other recreational groups was arbitrary and capricious

in violation of the APA. See 5 U.S.C. § 706(2)(A). Before

taking action, an “agency must examine the relevant data and

articulate a satisfactory explanation for its action including a

‘rational connection between the facts found and the choice

made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck

Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). 

[11] The Access Fund argues that because there is no significant geological impact on Cave Rock from rock climbing,

it is inconsistent to conclude that climbing harms the physical

resource. The Access Fund’s argument misses the point. The

value of Cave Rock is not simply geological; it is also cultural

and historical. As documented in extensive research and consultation with various community groups, rock climbing

harms the physical (not necessarily geological) integrity of the

rock. The Forest Service’s decision to ban climbing, adopted

after deliberate and thoughtful analysis and based on nonarbitrary historical considerations, does not violate the

Administrative Procedure Act. 

AFFIRMED.

THE ACCESS FUND v. USDA 10543
WALLACE, Circuit Judge, concurring: 

I concur in the result, but write separately because I do not

believe that the Lemon test should be applied in analyzing the

claim under the Establishment Clause. As the majority points

out, recent Supreme Court cases have questioned the continuing validity of the Lemon test. See, e.g., Van Orden v. Perry,

545 U.S. 677, 685-86 (2005) (declining to apply the Lemon

test); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 319

(2000) (Rehnquist, C.J., dissenting) (“Lemon has had a checkered career in the decisional law of this Court”); Hunt v.

McNair, 413 U.S. 734, 741 (1973) (the Lemon factors serve

as “no more than helpful signposts”); Zelman v. SimmonsHarris, 536 U.S. 639 (2002) (declining to apply the Lemon

test). I do not believe that the Lemon test is helpful under the

circumstances of this case, and would follow Van Orden

instead. 

In Van Orden, the Supreme Court addressed whether the

placement of a Ten Commandments monument on the Texas

State Capitol grounds violated the Establishment Clause. 545

U.S. at 681. The plurality opinion recognized “two faces” that

must be considered. Id. at 683-85. “One face looks toward the

strong role played by religion and religious traditions throughout our Nation’s history[,]” while the other “looks toward the

principle that governmental intervention in religious matters

can itself endanger religious freedom.” Id. at 683. The plurality opinion further expressed the view that the Establishment

Clause does not “bar[ ] any and all governmental preference

for religion over irreligion.” Id. at 684 n.3. Instead, determining whether the monument violated the Establishment Clause

required an inquiry into both “the nature of the monument and

[ ] our Nation’s history.” Id. at 686. 

A majority in Van Orden recognized that the Ten Commandments were religious, but found that no Establishment

Clause violation occurred. Id. at 690-91; id. at 700, 704

(Breyer, J., concurring). The plurality opinion observed that

10544 THE ACCESS FUND v. USDA
while the Ten Commandments had religious significance,

they also had an undeniable historical meaning. Id. at 690.

The monument had a “dual significance, partaking of both

religion and government.” Id. at 692. Further, the placement

of the monument on state capitol grounds was a more passive

use than the posting of the texts in public classrooms, a practice that the Supreme Court had previously held to have violated the First Amendment in Stone v. Graham, 449 U.S. 39

(1980). Id. at 691-92. 

Van Orden is distinct from this case in that it involved a

placement of a monument with religious text. Here, the government did not erect any monument or structure. Instead,

Access Fund contends that the government’s ban on rock

climbing violates the Establishment Clause. Despite this difference, I believe that the plurality’s analysis in Van Orden is

helpful in determining whether an Establishment Clause violation occurred. 

As discussed in the majority opinion, Cave Rock is a culturally, historically, and archaeologically significant site. It is

a core element of the Washoe people’s culture and a sacred

site in the Washoe religion. It is important to the Washoe people’s religious identity, and figures prominently in their religious beliefs. Cave Rock has secular significance as well. It

has been the subject of archaeological and ethnographic

studies, and has historical significance as a travel corridor. 

Access Fund argues that the climbing ban promotes the

Washoe religion. Even assuming that this is true, however,

merely “promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Id. at

690. Like the monument in Van Orden, the climbing ban has

“dual significance”: although it may promote the Washoe religion, it also protects a culturally, historically, and archaeologically significant site. There is “no constitutional requirement

which makes it necessary for government to be hostile to religion and throw its weight against efforts to widen the effecTHE ACCESS FUND v. USDA 10545
tive scope of religious influence.” Id. at 684 (citation and

quotations omitted). Under the circumstances, I would hold

that the climbing ban does not violate the Establishment

Clause of the First Amendment to the Constitution.

10546 THE ACCESS FUND v. USDA