RICHARD E. LYNG, SECRETARY OF AGRICULTURE, ET AL., PETITIONERS V. NORTHWEST INDIAN CEMETARY PROTECTIVE ASSOCIATION, ET AL. No. 86-1013 In the Supreme Court of the United States October Ter,, 1986 On Petition for A Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Reply Memorandum for the Petitioners 1. Respondents argue (State of California Br. in Opp. 7-11; Indian Resp. Br. in Opp. 10-12) that the decision below rests on the peculiar facts of this case and therefore does not conflict with the decisions of other courts of appeals or with this Court's decision in Bowen v. Roy, No. 84-780 (June 11, 1986). The courts below found a burden on Indians' free exercise rights -- even though the construction of the G-O road would not bar the Indians from visiting religious sites and would not physically prevent the Indians from engaging in any religious act -- because the natural conditions necessary for the success of the Indians' religious ritual would be vitiated by construction of the road. See Pet. App. 7a-11a, 63a-66a; see also State of California Br. in Opp. 6, 9-11. As we showed in our petition (at 15-18), other courts considering similar claims by Indians under the Free Exercise Clause have found such effects insufficient to make out a constitutional claim. These courts have refused to require the government to manage federal lands in a way that guarantees Indians the privacy and other conditions needed for the success of religious rituals. See Badoni v. Higginson, 638 F.2d 172, 178-180 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981); Crow v. Gullet, 541 F. Supp. 785, 791-792 (D.S.D. 1982), aff'd on opinion below, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977 (1983). Far from resting on its own specific facts, therefore, the differing result reached by the court below stems from that court's dramatically different view of what constitutes a burden upon the free exercise of religion giving rise to a claim under the Free Exercise Clause. /1/ Indeed, this Court in Bowen v. Roy, supra, recognized the difference between a Free Exercise Clause challenge to government action on the ground that it directly prohibits or penalizes a practice dictated by a religious belief, and a challenge on the ground that neutral government action is alleged to impair the effectiveness -- under the individual's own system of beliefs -- of the individual's religious practice. Compare slip op. 8-18 (plurality opinion) with id. at 5-7; see also Hobbie v. Unemployment Appeals Comm'n, No. 85-993 (Feb. 25, 1987), slip op. 3-5. The court of appeals simply failed to apply that crucial distinction in this case. /2/ 2. Respondents also claim (State of California Br. in Opp. 16-18; Indian Resp. Br. in Opp. 13-14) that the government interest in managing the public lands is not a compelling interest sufficient to justify a burden upon Indians' free exercise rights. On this point we simply disagree and submit that this ground of difference in itself justifies the granting of certiorari. We note, moreover, that respondents do not come to grips with the essential difference between government land management decisions and other sorts of government decisions: a decision regarding the permissible uses of federal land requires the government to consider a variety of competing public policy concerns. Thus, by its very nature, a land management decision represents the government's determination regarding the best use for a parcel of real property. And implementation of that decision furthers the government's strong interest that its land be used for what the government finds to be the most appropriate public purpose. /3/ For the foregoing reasons, and the reasons stated in the petition, it is respectfully submitted that the petition for a writ of certiorari should be granted. CHARLES FRIED Solicitor General APRIL 1987 /1/ Contrary to the State of California's assertion (see Br. in Opp. 9-11), Judge Beezer's dissenting opinion below reflects his recognition of the majority's application of an incorrect legal standard (see Pet. App. 34a). /2/ Respondents rely heavily (State of California Br. in Opp 11-16; Indian Resp. Br. in Opp. 15) upon the American Indian Religious Freedom Act, 42 U.S.C. 1996, to support their constitutional claim. But that statute requires consideration of the impact of government action upon Indians' religious practices; it does not impose substantive limits upon an agency's decisionmaking authority. Wilson v. Block, 708 F.2d 735, 746-747 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983). The district court held that the Forest Service had accorded the required consideration to the religious issues implicated by construction of the road (see Pet. App. 70a-71a). Indeed, the Forest Service's commissioning of a report on Indian religious beliefs and practices and its decision to modify its project so as to lessen the impact on Indian religion (see Pet. 3-6) are models of the responsible administrative action the statute is designed to encourage. /3/ The State of California is plainly wrong in invoking (Br. in Opp. 17 n.3) this Court's decision in California Coastal Comm'n v. Granite Rock Co., No. 85-1200 (Mar. 24, 1987), to support its claim that the Forest Service's authority to construct the G-O road is limited by state regulation. Granite Rock concerned the state's authority to regulate certain private activities on federally-owned land; nothing in that decision indicates that the state may overcome the federal government's sovereign immunity and regulate federal activities on federally-owned land. Compare Hancock v. Train, 426 U.S. 167, 178-179 (1976); Mayo v. United States, 319 U.S. 441 (1943).