RICHARD E. LYNG, SECRETARY OF AGRICULTURE, ET AL., PETITIONERS V.
NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION, ET AL.

   No. 86-1013

   In the Supreme Court of the United States

   October Term, 1986

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit

   The Solicitor General, on behalf of the Secretary of Agriculture;
the Chief of the United States Forest Service;  the Regional Forester,
Region Five, United States Forest Service;  the United States Forest
Service;  and the United States of America, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the Ninth Circuit in this case.

                       PARTIES TO THE PROCEEDING

   In addition to the petitioner listed in the caption, R. Max
Peterson, Chief of the United States Forest Service;  Zane G. Smith,
Jr., Regional Forester for Region Five, United States Forest Service;
the United States Forest Service;  and the United States of America
were defendants in the district court and are petitioners in this
Court.  In addition to the respondent listed in the caption, the
plaintiffs in the district court were Sierra Club, The Wilderness
Society, California Trout, Siskiyou Mountains Resource Council,
Redwood Region Audubon Society, Northcoast Environmental Center,
Jimmie James, Sam Jones, Lowana Branter, Christopher H. Peters,
Timothy McKay, John Amodio, and the State of California.  All of these
parties are respondents in this Court.

                           TABLE OF CONTENTS

   Parties to the proceeding
   Opinions below
   Jurisdiction
   Constitutional provision involved
   Question presented
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D

                            OPINIONS BELOW

   The decision of the court of appeals on rehearing (App., infra,
1a-37a) is reported at 795 F.2d 688.  The prior decision of the court
of appeals (App., infra, 38a-52a) is reported at 764 F.2d 581.  The
decision of the district court (App., infra, 53a-91a) is reported at
565 F. Supp. 586.  The prior decision of the district court denying
respondents' motion for a preliminary injunction (App., infra,
92a-102a) is reported at 552 F. Supp. 951.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 22, 1986.
On October 9, 1986, Justice O'Connor issued an order extending the
time for filing a petition for a writ of certiorari to and including
November 19, 1986;  on November 13, 1986, Justice O'Connor issued an
order further extending the time for filing a petition to and
including December 19, 1986.  The jurisdiction of this Court rests
upon 28 U.S.C. 1254(1).

                   CONSTITUTIONAL PROVISION INVOLVED

   The First Amendment provides in pertinent part:  "Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof."

                          QUESTION PRESENTED

   Whether the government's decision to reconstruct the final six-mile
segment of a 55-mile road located in a portion of a national forest
that has religious significance for members of three Indian Tribes and
its decision to permit logging within that same area of the forest
violate the Tribe members' rights under the Free Exercise Clause of
the First Amendment.

                               STATEMENT

   1. This case concerns the limitations imposed by the Free Exercise
Clause of the First Amendment upon the federal government's authority
to manage public lands.  The Six Rivers National Forest, which
consists of approximately 956,000 acres in northwestern California,
was created in 1947.  See 12 Fed. Reg. 3647 (1947);  61 Stat. 1070.
The particular portion of Six Rivers National Forest involved in the
present case consists of parts of the Blue Creek Planning Unit and the
Eight-Mile Planning Unit, which are located in the northern section of
the forest between the Smith and Klamath Rivers.  App., infra, 3a.
None of this land ever formed part of an Indian Reservation, and no
Indian treaty imposes a trust duty upon the United States with respect
to this land.

   a. In the 1930s, the United States Forest Service converted the
routes through this area that had been used by miners and other
travelers over the previous century into more formal trails and
low-standard roads.  With the growth of the timber industry in the
1950s and 1960s, the Forest Service recognized the need for an
improved road network.  It therefore began to upgrade a series of
unpaved roads connecting the towns of Gasquet and Orleans.  This
project, termed the "G-O" (Gasquet to Orleans) road, totals 75 miles
in length.  Twenty miles are located on non-federal land and
maintained by Del Norte County;  the remaining 55 miles are located
within Six Rivers National Forest.  The purpose of the G-O road is to
provide a route for hauling the large amount of timber that may be
harvested in this portion of the forest.  The upgraded road also is
designed to enhance the public's access to this area of the national
forest and serves other management purposes, including fire control.

   The Forest Service has spent $17 million to upgrade 49 of the 55
miles of the G-O road that are located on federal land.  A six-mile
portion of the road sandwiched between the upgraded segments -- the
Chimney Rock section -- remains unpaved.  This section of the road is
now accessible for only six months of the year.

   In 1977, the Forest Service issued a draft environmental impact
statement (EIS) discussing alternative proposals for upgrading the
Chimney Rock section of the G-O road.  The Advisory Council on
Historic Reservation responded to the draft EIS by requesting
information as to whether sites within the area were eligible for
inclusion in the National Register of Historic Places.  App., infra,
4a, 55a.  The Forest Service commissioned a study on Indian cultural
and religious sites in the Chimney Rock area, which was prepared by
Dr. Dorothea Theodoratus and completed in 1979.  See Cultural
Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six
Rivers National Forest (hereinafter cited as Theodoratus Report).

   The report concluded that the Chimney Rock area was situated in the
"high country," an area considered sacred by the Yurok, Karok, and
Tolowa Indians.  The district court found (App., infra, 5a (footnote
omitted)):

         The Indian plaintiffs' use of the high country for religious
      purposes is not in dispute.  Ceremonial use of the high country
      by the Yurok, Karok, and Tolowa tribes dates back to the early
      nineteenth century * * * and probably much earlier.  Members of
      these tribes currently make regular use of the high country for
      several religious purposes.  Individuals hike into the high
      country and use "prayer seats" located at Doctor Rock, Chimney
      Rock, and Peak 8 to seek religious guidance or personal "power"
      through "engaging in emotional (and) spiritual exchange with the
      creator." * * * Such exchange is made possible by the solitude,
      quietness, and pristine environmental found in the high country.
       Certain key participants in tribal religous ceremonies such as
      the White Deerskin and Jump Dances must visit the high country
      prior to the ceremony to purify themselves and to make
      "preparatory medicine." * * * The religious power these
      individuals acquire in the high country lends meaning to these
      tribal ceremonies, thereby enhancing the spiritual welfare of
      the entire tribal community.  * * * Medicine women in the tribes
      travel to the high country to pray, to obtain spiritual power,
      and to gather medicine.  * * * They then return to the tribe to
      administer to the sick the healing power gained in the high
      country through ceremonies such as the Brush and Kick Dances.

   The report identified the specific sites in the Chimney Rock area
at which these rituals currently are performed, as well as sites of
archeological significance.  The report found that it is a tenet of
the Indians' religion that the effectiveness of the rituals depends
upon the maintenance of the entire high country in its natural state.

   After considering the report, the Forest Service asked the keeper
of the National Register of Historic Places to add to the register a
17,500 acre district containing areas of spiritual value to the Yurok,
Karok, and Tolowa Indians.  See generally 16 U.S.C. 470a.  A 13,500
acre district was included in the register.  App., infra. 85a.

   On March 2, 1982, the Forest Service issued a final EIS addressing
the proposed reconstruction of the Chimney Rock section of the G-O
road (App., infra, 56a).  The regional forester issued a decision on
the same date selecting one of the alternative routes for the
reconstruction of this section of the road.  The forester noted that
"(t)his alternative is the farthest removed from contemporary
spiritual sites;  thus, the adverse audible intrusions associated with
the road would be less than all other alternatives" (Record of
Decision, Mar. 2, 1982, at 2).  He also noted that "(a)ccess to the
historic sites and areas of religious practice is not being deprived.
Some native people may feel access is enhanced.  Individual sites are
known and will not be disturbed.  Mitigation measures will reduce
audio and visual effects.  Native people will not have exclusive use
within the protective areas, but the natural environment will remain
undisturbed.  New roads and trails will not be permitted in these
areas" (id. at 4).  /1/

   The regional forester rejected the alternative of not upgrading the
Chimney Rock section and leaving the G-O road incomplete.  He noted
that "(t)he multiple-use benefits and opportunities provided by the
G-O Road are very significant to the development of the timber and
recreation resources and to the economies of Del Norte and Humboldt
counties.  Pulbic interest was expressed by a favorable ballot in Del
Norte County in June 1980 in support of the G-O Road.  Plans for
completion of the road have been known for over 20 years and
construction of the first segments started in 1963" (Record of
Decision at 3).  Accordingly, "(a) decision not to reconstruct the
existing road * * * would deprive the general public of many benefits
and unnecessarily limit their use of the area" (id. at 4).  The Forest
Service authorized the construction of the Chimney Rock road project
in July 1982.

   b. At the same time that the Forest Service was considering
proposals for upgrading the Chimney Rock section of the G-O road, it
was developing a multiple use management plan and environmental impact
statement for portions of the Blue Creek and Eight-Mile Planning Units
that are largely roadless, undeveloped forest.  /2/ The final EIS was
issued in 1975 and, on October 19, 1976, the forest supervisor adopted
a management plan permitting the harvest of 929 million board feet of
timber over 80 years.  App., infra, 3a-4a, 55a.

   Respondents appealed that decision to the regional forester.  On
February 19, 1981, the regional forester acted on the appeal,
directing the forest supervisor to reduce the proposed timber harvest
by 21% to 733 million board feet.  The modification rested in part
upon the Indian religious and cultural considerations identified in
the Theodoratus Report.  For example, all harvesting and other
management activities were prohibited within a one-half mile radius of
Indian religious sites.  The chief of the Forest Service denied an
appeal of the regional forester's decision.  On January 8, 1982, the
Forest Service adopted the modified management plan.  App., infra, 4a,
55a, 59a.

   2. Respondents -- an Indian cultural and religious organization,
individual Indians, environmental organizations, individual members of
those organizations, and the State of California -- commenced actions
in the United States District Court for the Northern District of
California challenging the Forest Service's decisions to complete
construction of the G-O road and adopt the management plan.
Respondents asserted that the Forest Service's actions violated the
Free Exercise Clause of the First Amendment, the Clean Water Act, the
National Environmental Policy Act, and a variety of other statues.
/3/ The district court denied respondents' motion for a preliminary
injunction barring construction of the G-O road (App., infra,
92a-102a).

   Following a trial, the district court entered judgment in favor of
respondents.  App., infra, 53a-91a.  With respect to respondents'
claim under the Free Exercise Clause, the district court observed that
the Forest Service's actions would not intrude upon the actual sites
of Indian religious ceremonies (id. at 59a).  It noted that
respondents' claim was that "construction of the Chimney Rock Section
would violate the sacred qualities of the high country and impair its
successful use for religious purposes" (id. at 58a).  Thus,
respondents asserted that the visibility of the road and the noise
from the road would "impair the success of religious and medicinal
quests into the high country" (id. at 59a (footnote omitted)).  In
addition, "religious use of the area would be impaired by increased
recreational use resulting from construction of the Chimney Rock
Section" (ibid.).

   The district court found that "(t)he evidence establishes that
construction of the Chimney Rock Section and/or implementation of the
Management Plan would seriously impair the Indian (respondents') use
of the high country for religious practices" because those activities
would "seriously damage the * * * visual, aural, and environmental
qualities of the high country" (App., infra, 63a, 64a-65a).  That
effect, the district court found, constituted a burden on the Indian
respondents' free exercise of religion (id. at 65a-66a).

   The district court went on to conclude that the reasons underlying
these government actions were insufficient to justify the burden on
respondents' free exercise rights.  It first stated that
"(c)onstruction of the Chimney Rock Section would not materially serve
several of the claimed government interest" (App., infra, 66a).  Thus,
it found that timber could be harvested without construction of the
road;  that the road would simply transfer jobs from Humboldt County
to Del Norte County, not increase the number of jobs in the timber
industry;  and that increased recreational access was not relevant
because "although recreational access to the area by means of motor
vehicles would be somewhat improved, resulting environmental
degradation would decrease the area's suitability for primitive
recreational use" (id. at 67a).

   The court stated that any increase in the efficiency of Forest
Service administration resulting from the construction of the road
could not justify the infringement of respondents' free exercise
rights, noting that the relevant administrative services "are
efficiently provided at present" (App., infra, 68a).  It observed that
the Forest Service's claim that construction of the road would
increase competition in the timber industry was "too speculative" to
outweigh the burden on respondents' free exercise rights (ibid.).
Finally, the court stated that "(p)ast investment of resources in
existing paved sections of the G-O road does not justify construction
of the Chimney Rock Section.  Those sections of the G-O road provide
improved and useful access to vast recreational, timber, and other
resources in the region" (ibid.).  /4/

   The district court next found that both the draft and final
environmental impact statements regarding construction of the Chimney
Rock section of the G-O road did not satisfy the requirements of the
National Environmental Policy Act because they

         (1) fail sufficiently to disclose the impact of the road
      construction on water quality;  (2) fail to discuss the
      cumulative impact of the road construction and implementation of
      the Management Plan on water quality;  and (3) fail adequately
      to describe what measures would be taken to mitigate adverse
      impacts on water quality.

   App., infra, 75a.  The court also found that the environmental
impact statement regarding the management plan was deficient in its
discussion of the effect of the plan on water quality (id. at
81a-87a).  /5/

   Finally, the district court concluded that the construction of the
road and implementation of the management plan would violate the Clean
Water Act.  It found that both actions would increase sediment levels
in Blue Creek above the level permitted under state water quality
standards (App., infra, 87a).  /6/

   On the basis of these legal conclusions, the court entered an
injunction barring the government from constructing the Chimney Rock
section of the G-O road and implementing the management plan (App.,
infra, 91a).

   3. While the case was pending before the court of appeals, Congress
enacted the California Wilderness Act of 1984, Pub. L. No. 98-425, 98
Stat. 1619 et seq.  This statute designated most of Six Rivers
National Forest as a wilderness area (98 Stat. 1621-1624).  Since
commercial activities are prohibited in wilderness areas (16 U.S.C.
1133(c)), much of the timber harvesting enjoined by the district court
on First Amendment ground is prohibited under the statute.  The
statute expressly exempts a narrow strip of land from the wilderness
designation "to enable the completion of the Gasquet-Orleans Road
project if the responsible authorities so decide." S. Rep. 98-582,
98th Cong., 2d Sess. 29 (1984);  see also H.R. Rep. 98-40, 98th Cong.,
1st Sess. 32 (1983).

   The court of appeals panel issued a decision on June 24, 1985,
affirming the district court's decision in part and filed a petition
for rehearing and suggestion for rehearing en banc.  The panel granted
the petition for rehearing, withdrew its initial decision, and issued
a new decision (id. at 1a-2a).

   4. The court of appeals' decision on rehearing affirmed the
district court in part by a divided vote (App., infra, 3a-37a).  The
majority first upheld the district court's conclusion that
construction of the G-O road and implementation of the forest
management plan would interfere with the Indian respondents' rights
under the Free Exercise Clause.  /7/ It observed that the evidence in
the record showed that "the high country is indispensable to a
significant number of Indian healers and religious leaders as a place
where they receive the 'power' that permits them to fill the religious
roles that are central to the traditional religions.  There is
abundant evidence that the unitary pristine nature of the high country
is essential to this religious use" (id. at 9a (footnotes omitted)).
Quoting the Theodoratus Report, the court of appeals found that the
construction of the G-O road would "'produce an irreparable impact on
the spiritual and physical well-being of the adjacent Yurok, Karok and
Tolowa communities'" because of the "'degradation of salient
environmental qualities pertinent to the power quests of medicinal and
spiritual practitioners who serve these communities'" (id. at 10a).
The court noted that "much of the adverse impact would be indirect,
from increased uses made possible by the Road," but nonetheless
concluded that "the Road would interfere with the free exercise of
(respondents') religion" (ibid.).  /8/

   The court of appeals found that no compelling government interest
justified construction of the road.  The court stated (App., infra,
15a):

         There was testimony that completion of the road and logging
      in the high country would increase employment in Del Norte
      County, but that this benefit would simply represent a shift of
      work from elsewhere in the state.  There would be no statewide
      net gain in employment.  There was evidence that forest
      management functions would be made easier by the road.  There
      was evidence that the road would also provide greater recreation
      access to the area, but the projected use was not large.  In our
      view, the government has fallen short of demonstrating the
      compelling interest required to justify its proposed
      interference with the Indian (respondents') free exercise
      rights.

   The court of appeals upheld the district court's finding that the
environmental impact statements were insufficient because they did not
adequately discuss water quality issues (App., infra, 15a-18a).  It
also concluded that the Forest Service projects would violate
applicable state water quality standards if they "were implemented as
described in the EISs" (id. at 19a).  /9/

   Judge Beezer dissented with respect to the free exercise issue
(App., infra, 22a-37a).  He observed that the Theodoratus Report found
that construction of the road would have five effects upon Indian
religious practices and -- after evaluating each alleged adverse
effect -- concluded that they "did not justify the issuance of an
injunction against the construction of the road" (id. at 29a).  He
found that "(t)hree of the five potential adverse effects cited in the
report -- logging, mining, and recreational use(s) -- cannot support
issuance of an injunction against road construction" because they
could be eliminated by less drastic means and, in the case of
recreational activities, did not present a threat "of constitutional
magnitude" (id. at 32a).  He further found that "(t)he remaining two
potential adverse effects -- road construction activities off the
right-of-way and Forest Service activities -- do not pose a serious
threat to the practice of the Indian plaintiffs' religion" because
they could be prevented by other means (ibid.).

   Judge Beezer also rejected the other adverse effects cited by
respondents.  He found that the claim "that visibility of the road
from religious sites would impair * * * religious practices" lacked
merit in view of the measures proposed by the Forest Service to
mitigate the visual impact of the road (App., infra, 33a).  With
respect to the argument that the road would result in increased noise,
Judge Beezer observed that "(w)hile it is possible that noise from the
road would impair religious and medicianl quests in the area adjoining
the road, it is apparent that the high country is a large area.  The
Indian plaintiffs have not established that their quests can take
place only in the area near the road" (id. at 34a).  Since the
completion of the G-O road would not seriously impair respondents'
religious practices, Judge Beezer would have reversed the district
court's order granting the injunction.

   Judge Beezer stated that in light of the passage of the California
Wilderness Act, "(t)he first amendment issues raised by the proposed
development of the newly designated wilderness areas (were) moot"
(App., infra, 35a).  Since it was "not clear whether the district
court would have issued an injunction (barring implementation of the
management plan) upon the development of the remaining small parcels,"
he concluded that a remand was appropriate "to allow the district
court to reevaluate its injunction in light of the Act" (ibid.).

                   REASONS FOR GRANTING THE PETITION

   As the dissenting judge below observed, "(t)he district court's
order was the first decision restricting the government's ability to
develop public lands on the basis of the free exercise clause" (App.,
infra, 37a).  The court of appeals' unprecedented decision affirming
that order, and thereby flatly prohibiting the government from
undertaking the land management actions at issue here, conflicts with
the decisions of several other courts of appeals, each of which has
refused to grant relief when presented with a similar challenge
grounded in the Free Exercise Clause.  Respondents do not contend that
the government has forced them to act in a manner that is contrary to
their religious principles.  Nor is it asserted that the government
has explicitly prohibited any form of religious practice or prevented
respondents from visiting areas of the national forest that they view
as spiritually significant.  Respondents instead seek to require the
government to exercise its authority to manage the public lands in a
manner that will effectuate respondents' own religous practice.  The
Court's decision last Term in Bowen v. Roy, No. 84-780 (June 11,
1986), indicates that, absent governmental complusion or prohibition
as to an individual's religious belief or practice, attempts to
dictate the government's conduct of its affairs and management of its
property in order to enhance the practice of a particular religion
cannot be justified under the Free Exercise Clause.

   The court of appeals also erred in failing to accord any weight to
the justifications advanced in support of the land management
decisions at issue here.  The government has broad authority to
administer federally-owned lands in the public interest;  the exercise
of that authority requires evaluation of a variety of conflicting
proposals and interests in order to ascertain the best use of each
unique piece of government property.  The manner in which the
government has resolved conflicting demands relating to a particular
piece of federal land should carry special weight.  This is
particularly true where, as here, the government has made substantial
efforts to adjust its plans to accommodate religous beliefs.  The
decision below ignores these concerns and dramatically reduces the
government's authority to utilize the vast amount of land owned by the
federal government in the manner that best accords with the public
interest.  Review by this Court is plainly warranted.

   1. The decision below squarely conflicts with the decisions of
other courts of appeals rejecting free exercise claims virtually
identical to the claim asserted by respondents here.  In each of these
other cases, the Indian plaintiffs alleged that the use of
federally-owned land proposed by the government would violate their
religious beliefs;  the courts of appeals uniformly refused to require
the government to conform its actions to the plaintiffs' religious
beliefs.

   For example, in Wilson v. Block, 708 F.2d 735 (D.C. Cir.), cert.
denied, 464 U.S. 956 (1983), the plaintiffs -- the Hopi Tribe, the
Navajo Medicinemen's Association, and other Navajos -- challenged the
proposed development of the San Francisco Peaks, a geological
formation located in the Coconino National Forest.  The court noted
that the Peaks play a central role in both the Hopi and Navajo
religions;  they are viewed as the home of deities and are the site of
religious ceremonies.  A portion of the Peaks had been used for
downhill skiing since 1937 and the Forest Service proposed to
construct additional ski facilities.  The plaintiffs argued that the
proposed development was "inconsistent with their First Amendment
right freely to hold and practice their religious beliefs" because as
a consequence of such development "the Peaks would lose their healing
power and otherwise cease to benefit the tribes" and the tribes'
"ability to pray and conduct ceremonies upon the Peaks" would be
impaired (id. at 739-740 (footnote omitted)).

   The court of appeals held that the plaintiffs had not established a
violation of the Free Exercise Clause.  It first found that the Clause
was not implicated by the plaintiffs' claim that the proposed
government action would "'desecrate and destroy the spiritual
character of a religion's most sacred shrine' and * * * thereby force
practitioners 'to fundamentally modify their religious doctrine to
conform to the changed circumstances'" (708 F.2d at 741).  The court
observed that "(m)any government actions may offend religious
believers, and may cast doubt upon the veracity of religious beliefs,
but unless such actions penalize faith, they do not burden religion"
(ibid.).  The court concluded that "(t)he construction (of the
recreation facility) approved by the Secretary is, indeed,
inconsistent with the plaintiffs' beliefs, and will cause the
plaintiffs spiritual disquiet, but such consequences do not state a
free exercise claim" (id. at 742 (footnote omitted)).

   Turning to the plaintiff's claim that the construction of the
skiing facility would burden their practice of religion by barring
them from a portion of the Peaks, the court held that "plaintiffs
seeking to restrict government land use in the name of religious
freedom must, at a minimum, demonstrate that the government's proposed
land use would impair a religious practice that could not be performed
at any other site" (708 F.2d at 744 (footnote omitted)).  It concluded
that the plaintiffs had not made out a free exercise claim because the
development would not bar them from any area of the Peaks that was
indispensable to the practice of their religion (ibid.).

   The same analysis was applied in Crow v. Gullet, 541 F. Supp. 785
(D.S.D 1982), aff'd on opinion below, 706 F.2d 856 (8th Cir.), cert.
denied, 464 U.S. 977 (1983).  That case concerned Bear Butte, a
geological formation designated as a park by the State of South
Dakota.  The Indian plaintiffs alleged that "Bear Butte is the most
powerful ceremonial site for the religious practices of the Lakota and
Tsistsistas people" (541 F. Supp. at 787).  They asserted that the
construction of access roads, parking lots, and viewing platforms near
the geological foundation "destroy(ed) the sanctity and power of the
religious ceremonies and violate(d) their right to exercise freely
their religious beliefs" (id. at 788).  The court held that the
plaintiffs failed to establish a violation of the Free Exercise
Clause, holding that the Clause did not require the State "to waive
(its) statutory power to manage and develop the state park in the
public interest.  Instead, we conclude that the free exercise clause
places a duty upon a state to keep from prohibiting religious acts,
not to provide the means or the environment for carrying them out"
(id. at 791).  The court also rejected the plaintiffs' claim that the
State was required to prevent tourists from engaging in conduct that
vitiated the sanctity of Bear Butte, holding that the State had not
"burdened the exercise of (the) plaintiffs' religion by 'allowing'
tourists to act on occasion in a manner which does not conform to the
dictates of (the) plaintiffs' religion" (id. at 792).  /10/

   These courts flatly rejected free exercise claims asserting that
proposed government action would disturb the natural environment and
thereby vitiate the sanctity of a particular geographic area.  The
court below, on the other hand, found a violation of the Free Exercise
Clause solely because the challenged government actions would degrade
the natural environment and thereby render respondents' religious
rituals ineffective (App., infra, 10a).  There is thus a square
conflict among the courts of appeals concerning whether asserted
disruptive effects not involving denial of access to a religious site
on public land can suffice under the Free Exercise Clause to prevent
the carrying out of land management decisions reached through normal
governmental processes.  /11/

   2. Moreover, the court of appeals' determination is clearly
incorrect.  The Forest Service's decisions to complete construction of
the G-O road and permit logging under the management plan do not
violate the Free Exercise Clause.  /12/

   a. In addressing claims under the Free Exercise Clause, this Court
has differentiated between action which has the effect of
"prohibiting" the free exercise of religion and nondiscriminatory
action which has the unintended effect of disadvantaging a religious
practice.  It is well-established that a person is not protected from
every incidental burden on the exercise of his religion that may
result from the implementation of a neutral, secular governmental
activity.  "To strike down, without the most critical scrutiny,
legislation which imposes only an indirect burden on the exercise of
religious practice itself, would radically restrict the operating
latitude of the legislature." Braunfeld v. Brown, 366 U.S. 599, 606
(1961) (plurality opinion).  See, e.g., McDaniel v. Paty, 435 U.S.
618, 635 n.8 (1978) (Brennan, J., concurring);  Johnson v. Robinson,
415 U.S. 361, 383-386 (1974);  Gillette v. United States, 401 U.S.
437, 461-462 (1971);  see also Prince v. Massachusetts, 321 U.S. 158
(1944);  Reynolds v. United States, 98 U.S. 145 (1878).

   The government actions challenged here do not require respondents
to abandon any of their religious practices.  No element of religious
ritual would be rendered unlawful or made more costly if the Forest
Service were to carry out its plans, and respondents would not be
denied access to any religious site.  Respondents' contention thus
differs from claims traditionally found to be encompassed within the
Free Exercise Clause.  Rather than challenging government action on
the ground that it requires an individual to act in a manner that is
inconsistent with his religious beliefs, or that it imposes a
financial or other penalty on religious practice, respondents argue
that their religious rituals would be rendered ineffective by the
actions proposed by the Forest Service.

   In Bowen v. Roy, supra, the plaintiff asserted that the
government's use of a Social Security number to identify his daughter
would "serve to 'rob the spirit' of his daughter and prevent her from
attaining greater spiritual power" (slip op. 2-3).  Asserting a claim
under the Free Exercise Clause, the plaintiff obtained an injunction
barring the government from using the Social Security number issued in
his daughter's name.  Eight Justices joined in reversing this portion
of the district court's judgment, holding that the plaintiff had not
established a free exercise claim because "(t)he Federal Government's
use of a Social Security number (for the plaintiff's daughter) does
not itself in any degree impair (the plaintiff's) 'freedom to believe,
express, and exercise,' his religion" (id. at 7 (footnote omitted)).

   The Court squarely rejected the argument that "the First Amendment
(requires) the Government itself to behave in ways that the individual
believes will further his or her spiritual development or that of his
or her family" (slip op. 6 (emphasis in original)).  The Court stated
(ibid.):

         Just as the Goverment may not insist that (the plaintiff(s)
      engage in any set form of religious observance, so (the
      plaintiffs) may not demand that the Government join in their
      chosen religious practices by refraining from using a number to
      identify their daughter.  "(T)he Free Exercise Clause is written
      in terms of what the government cannot do to the individual, not
      in terms of what the individual can extract from the
      government." Sherbert v. Vernet, 374 U.S. 398, 412 (1963)
      (Douglas, J., concurring).

   Respondents' claim that the government's activities in Six Rivers
National Forest violate the Free Exercise Clause because they threaten
to vitiate the conditions necessary for effective religious ceremonies
is similar to the claim in Roy that the government's use of the Social
Security number would rob the plaintiff's daughter of her spirit.
Both claims rest upon the notion that the Free Exercise Clause
obligates the government to conduct itself and its affairs so as to
minimize all incidental interferences with religion.  Thus, the
decision in Roy indicates that respondents' claim should be rejected
here.  /13/

   b. Weighing further against respondents' claim of a free exercise
violation is the substantial interest of the Executive Branch in
administering the public lands in a manner consonant with
congressional directives and responsive to myriad competing public
policy concerns, of which religious accommodation is only one.  The
Property Clause of the Constitution vests Congress with the power "to
dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States" (U.S.
Const. Art. IV, Section 3, Cl. 2).  Congress has exercised this
authority by directing the Secretary of Agriculture to administer the
national forests "for outdoor recreation, range, timber, watershed,
and wildlife and fish purposes." 16 U.S.C. 528;  see also 16 U.S.C.
475.  In addition, the Secretary must "develop and administer the
renewable surface resources of the national forests for multiple use
and sustained yield of the several products and services obtained
therefrom" (16 U.S.C. 529).  /14/ Among other statutes bearing on the
Forest Service's land management responsibilities, Congress in 1978
enacted the American Indian Religious Freedom Act, 42 U.S.C. 1996,
which provides in part that "it shall be the policy of the United
States to protect and preserve for American Indians their inherent
right of freedom to believe, express, and exercise (their) traditional
religions." See Wilson v. Block, 708 F.2d at 746-747 (discussing
requirements of American Indian Religious Freedom Act).

   The government has a strong interest in ensuring that public lands
are managed in the manner that best fulfills these statutory
requirements.  As Judge Beezer observed below, "(w)hile the government
has many obligations that are not shared by private landowners, the
government retains a substantial, perhaps even compelling, interest in
using its land to achieve economic benefits" (App., infra, 36a).  In
determining the use that will be permitted with respect to a
particular piece of property, the government must consider and
evaluate a complex set of competing possibilities.  There is a very
strong governmental interest -- to be overcome only in instances of
constitutional necessity -- that decisions arrived at through this
administrative process be carried through.  Indeed, nullification of
such an administrative decision imposes a burden on the persons who
otherwise would be benefitted by the proposed use of the property.

   Moreover, there is no reason to suppose that in carrying out its
complex multiple-use land management responsibilities, the Forest
Service has abused its discretion or callously disregarded
respondents' religious claims.  The government decisions at issue here
represent a reasonable accommodation between the interest of the
government in furthering access to and productive uses of the national
forests and the religious beliefs of respondents.  The Forest
Service's decision to complete the G-O road was preceded by
consideration of all relevant issues, including respondents' religious
beliefs.

   The Forest Service found the road to be justified by the
government's interests in promoting the harvesting of timber,
enhancing recreational access to federal lands, and efficient
administration of the public lands.  Before proceeding to complete the
road, however, the Forest Service commissioned a comprehensive study
of the Indians' religion and its relationship to the affected area,
and adopted measures to mitigate the effect of the proposed actions
upon the Indians' religious practices.  The road construction plan
chosen by the Forest Service is the alternative that impacts least
upon religious sites.  Indeed, as Judge Beezer showed in his
dissenting opinion below (App., infra, 29a-34a), the construction of
the road will have little effect upon respondents' religious
practices.  The decision therefore does not violate the Free Exercise
Clause.  Cf. United States v. Lee, 455 U.S. 225, 258-260 (1982).  /15/

   3. The question presented in this case is of considerable
importance to the government's ability to manage federally-owned lands
in accordance with the public interest.  The government owns
approximately 726 million acres of land located within the United
States;  570 million acres is found in the Ninth Circuit.  The proper
management of this vast amount of land requires innumberable decisions
regarding the permissible uses of particular sites as well as the
construction of roads, trails, recreational facilities, and other
projects.  The rule adopted by the court below, if allowed to stand,
would greatly affect the government's authority to make these
decisions.  Whenever the government were presented with a claim that a
proposed action would have an incidental effect on any individual's
complete realization of his or her spiritual development, the
balancing of interests mandated by Congress would be replaced by a
process in which undue weight is accorded to the accommodation of
religious beliefs.  /16/

   Moreover, such claims presumably would not be limited to the
traditional religions of Native Americans.  It is difficult to see why
adherents of any religion -- new or old -- could not seek to challenge
federal land management decisions on the ground that their beliefs
require the United States to maintain a particular piece of property
in a particular manner.  In view of the significant potential for
disruption of Congress's plan for the management of federal lands that
will result from the erroneous construction of the Free Exercise
Clause adopted by the court below, review by this Court plainly is
warranted.

   4. Finally, we briefly address the procedural posture of this case.
 The district court's injunction against construction of the G-O road
and implementation of the management plan -- and the court of appeals'
decision affirming the issuance of the injunction -- rest upon three
separate grounds:  (1) the First Amendment determination presented for
review here;  (2) the finding that the environmental impact statements
did not satisfy the requirement of the National Environmental Policy
Act (NEPA);  and (3) the conclusion that the project "as described in
the EISs" would violate state water quality standards imposed under
the Clean Water Act.  It would have been appropriate for the courts
below to withhold judgment on the constitutional question because the
relief that they awarded -- the prohibition of the two government
actions at issue in this case -- could have been based solely upon the
statutory determinations.  As this Court has observed, "(i)f there is
one doctrine more deeply rooted than any other in the process of
constitutional adjudication, it is that we ought not to pass on
questions of constitutionality * * * unless such adjudication is
unavoidable." Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101,
105 (1944);  see also New York City Transit Authority v. Beazer, 440
U.S. 568, 582-583 & n.22 (1979);  Ashwander v. TVA, 297 U.S. 288, 347
(1936) (Brandeis, J., concurring).

   Although the court of appeals decided the constitutional issue
prematurely, its decision is binding and involves an issue of great
importance to the government.  /17/ The fact that we have presented
only the constitutional question in our petition -- after determining
that the statutory issues are not appropriate for review by this Court
-- does not mean that this Court's decision on the issue presented for
review is likely to determine whether the government will be able to
go forward with these projects.

   The portion of the district court's order based upon its First
Amendment determination flatly bars the construction of the G-O road
and implementation of the management plan.  The portions of the
district court's injunction relating to the NEPA and Clean Water Act
issues, on the other hand, are conditional -- they forbid action by
the Forest Service only until it issues a revised EIS that satisfies
the requirements of NEPA and demonstrates that the construction
project will not violate the relevant water quality standards.  App.,
infra, 90a-91a.  The Forest Service informs us that if the
unconditional portion of the injunction is lifted as a result of the
reversal of the constitutional determination below, it anticipates
that it will be able to comply with what we believe is required under
the decisions below and proceed to construct the Chimney Rock section
of the G-O road.  /18/

   The NEPA ruling simply required the preparation of a more
comprehensive environmental impact statement.  With respect to the
Clean Water Act claim, the court of appeals specified that its ruling
was limited to the project "as described in the EISs" (App., infra,
19a).  The Forest Service states that it believes that, through better
descriptions of the pollution control features of the present project
or the addition of new antipollution features to the project's design,
it will be able to satisfy the state water quality standard.  In this
regard, funds for the construction of the road are available to the
Forest Service in the current fiscal year.  In sum, the Forest Service
believes that reversal of the constitutional determinations below will
make possible the completion of the G-O road because it will be able
to make modifications that accommodate the provisions of the NEPA and
the applicable state water quality standard.

   Since this case properly presents an important constitutional
question as to which the courts of appeals are in conflict, review by
this Court is plainly warranted.  /19/

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   F. HENRY HABICHT II

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ANDREW J. PINCUS

      Assistant to the Solicitor General

   ROBERT L. KLARQUIST

   JACQUES B. GELIN

      Attorneys

   DECEMBER 1986

   /1/ The regional forester also noted that "(t)he effect (of of the
reconstructed road) on archaeological sites would be indirect in
nature.  There would be no ground disturbing activites near
archaeological properties.  Being lower on the slope, there would be
fewer adverse visual impacts" (Record of Decision at 2).  The regional
forester acknowledged that the Chimney Rock section of the G-O road
would traverse the district proposed by the Forest Service for
inclusion in the National Register of Historic Places.  He concluded
that the "(e)ffects of the road on the District have been mitigated"
by the road location and other ameliorative measures.  2d. at 3.

   /2/ The Multiple-Use Sustained-Yield Act of 1960 directs the
Secretary of Agriculture to "develop and administer the renewable
surface resources of the national forests for multiple use and
sustained yield of the several products and services obtained
therefrom" (16 U.S.C. 529).

   /3/ Respondents also alleged violations of the American Indian
Freedom of Religion Act of 1978, 42 U.S.C. 1966;  the Wilderness Act,
16 U.S.C. 1131 et seq.; the Administrative Procedure Act, 5 U.S.C.
706;  the Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. 528 et
seq.; the National Forest Management Act, 16 U.S.C. 1600 et seq.; and
water and fishing treaty rights reserved to Indians living on the
Hoopa Valley Indian Reservation.  App., infra, 4a.

   /4/ The court also found that the government's interest in
increasing the harvest timber did not justify the burden on free
exercise rights that would result from implementation of the
management plan (App., infra, 68a-69a).

   /5/ The court rejected a variety of other challenges to the
sufficiency of the environmental impact statements (App., infra,
71a-75a, 80a-81a).  It also concluded that the management plan EIS was
deficient because it failed to properly assess the impact of the plan
on the area's wilderness resource potential (id. at 82a-85a).

   /6/ The court rejected respondents' claims under the American
Indian Religious Freedom Act (App., infra, 70a-71a);  the National
Historic Preservation Act (id. at 85a-86a);  the Multiple-Use
Sustained-Yield Act (id. at 89a);  and the National Forest Management
Act (ibid.).  The court held (id. at 88a) that the proposed government
actions violated water and fishing rights reserved to Indians on the
Hoopa Valley Indian Reservation.  The court also found (id. at
88a-89a) that the other violations constituted violations of the
Administrative Procedure Act.

   /7/ The court noted that "(b)ecause most of the high country has
now been designated by Congress as a wilderness area, the issue of
logging becomes less significant, although it does not disappear"
(App., infra, 9a).

   /8/ The court rejected the contention that the district court's
order barring construction of the road and implementation of the
management plan violated the Establishment Clause (App., infra,
11a-13a).

   /9/ The court of appeals held that the district court had erred by
considering whether the Forest Service projects would breach the
government's trust responsibilities to Indians living on the Hoopa
Valley Indian Reservation.  It found that "(b)ecause the Hoopa Valley
Tribe was not a party to this action, * * * this case (was not) an
appropriate vehicle in which to determine the range and extent of the
trust responsibility owed to the Tribe" (App., infra, 19a n.10).  It
therefore vacated the part of the injunction resting on that portion
of the district court's opinion (ibid.).

   The court of appeals further noted that enactment of the California
Wilderness Act had rendered moot the portion of the district court's
order directing the Forest Service to study the wilderness potential
of the area covered by the management plan.  The court therefore also
vacated that part of the distric court's order.  App., infra, 20a.

   /10/ Similar claims were rejected in Badoni v. Higginson, 638 F.2d
172, 178-180 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981),
where the court concluded that the relief sought by the Indian
plaintiffs -- management of a monument in accordance with their
religious beliefs -- would amount to a violation of the Establishment
Clause.  See also Sequoyah v. TVA, 620 F.2d 1159, 1163-1165 (6th
Cir.), cert. denied, 448 U.S. 953 (1980) (where worship at a
particular site was not central to religious ceremonies and
practicies, flooding of that site did not implicate an interest
protected by the Free Exercise Clause);  Inupiat Community of Arctic
Slope v. United States, 548 F. Supp. 182, 189 (D. Alaska 1982), aff'd
on other grounds, 746 F.2d 570 (1984), cert. denied, No. 84-1801 (Oct.
7, 1985).

   /11/ The court below asserted that it was utilizing the same
standard as the other courts of appeals, and justified its contrary
result by finding that the intrusions upon the Blue Creek high country
would destroy the Indians' core religious beliefs and practices (App.,
infra, 7a-8a & n.4).  The court's proffered distrinction rests upon a
fundamental misunderstanding of the decisions of the other courts of
appeals.  These courts have divided the free exercise claims asserted
by Indian plaintiffs into two distinct categories.  The courts
completely reject claims based upon the incompatibility of the
proposed government action and the Indians' belief systems -- the type
of claim at issue here.  With respect to claims based upon denial of
access to religious sites, the courts apply a test examining the
centrality of the site to the plaintiffs' religious beliefs.  The
court below applied this "centrality" test to the first type of claim,
thereby adopting an approach contrary to that followed by the other
courts of appeals that have considered the question.

   /12/ In our view, the court of appeals erred by reaching the merits
of respondents' challenges to the logging plan because the 1984
wilderness designation bars timber harvesting and road construction in
a large portion of the area covered by the plan.  As Judge Beezer
observed in his dissenting opinion (App., infra, 35a-36a), the proper
course would have been to remand the issue to allow the district court
to reconsider the issue in light of the 1984 designation.  Since the
course of action adopted by the court of appeals bars all logging in
the area -- even in those portions of the national forest not included
in the wilderness designation -- the Forest Service cannot adopt a
narrower plan permitting logging in those areas not covered by the
wilderness designation.

   /13/ The court of appeals attempted to distinguish Roy on two
grounds.  First, it asserted that the plaintiff in Roy challenged the
government conduct because it "offended his religious sensibilities,"
but that the Forest Service actions "would greatly impair religious
exercises of (respondents) in the only place where they can be
performed" (App., infra, 11a (footnote omitted)).  The court's
characterization of the claim in Roy is incorrect;  as we have
discussed, the plaintiff in that case asserted that use of the Social
Security number would rob his daughter of her spirit and "prevent her
from attaining greater spiritiual power" (slip op. 3).  That claim is
very similar to respondents' contention that the Forest Service's
actions would vitiate the sacred character of the high country.  In
both cases, the contention is that the government's failure to respect
the tenets of the religion will cause spiritual harm.

   The court of appeals' second basis for distinguishing Roy is that
"logging and road-building on public lands, to which the public has
access, is not the kind of internal government practice that the Court
found beyond free exercise attack in Roy" (App., infra, 11a).  Of
course, the Social Security Administration's use of a Social Security
number and the Forest Service's development of government lands are
different in many ways, but the court of appeals never explained why
they are relevantly different.  In both instances the government
undertakes actions in respect to property and procedures that are the
government's to manage, and the complainant's objection related to an
effect on his religious interests that is produced by a spiritual
nexus particular to his religious beliefs.  Moreover, the Court in Roy
did not rest its decision on the peculiar factual characteristics of
the Social Security system, but upon the "distinction between
individual and governmental conduct" (slip op. 7 n.6), observing that
the Free Exercise Clause bars the government from prescribing the
religious beliefs of individuals, but does not require the government
to act in accordance with the religious beliefs of any individual (id.
at 6).

   /14/ Similarly broad grants of authority govern the administration
of other federally owned lands.  See 16 U.S.C. 1600-1614;  43 U.S.C.
1700-1712, 1732.

   /15/ In the courts below, the United States argued that acceding to
respondents' demands would amount to an establishment of religion
because they would impose a burden on persons who wish to use the road
and adjacent public lands for logging, recreational, or other
purposes.  On further reflection, we conclude that there would be no
Establishment Clause violation in this context.  While the government
is not constitutionally compelled to accede to the claims of
respondents for religious accommodation, nevertheless a full measure
of discretion rests with the political branches in seeking reasonable
accommodation of competing claims to the use of public lands.  Indeed
we believe that deference to claims such as those of respondents might
well be shown as a matter of administrative discretion or mandated by
statute as instances of the kind of governmental accommodation of
religion, which, while not required by the Free Exercise Clause, is
well clear of any prohibition imposed by the Establishment Clause.
This Court has made clear that "(t)he limits of permissible state
accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.  To equate the
two would be to deny a national heritage." Walz v. Tax Commission, 397
U.S. 664, 673 (1970);  see also Bowen v. Roy, slip op. 18 & n.19
(opinion of Burger, CJ.);  Wallace v. Jaffree, No. 83-812 (June 4,
1985), slip op. 16 (O'Connor, J., concurring in the judgment);  Marsh
v. Chambers, 463 U.S. 783, 812 (1983) (Brennan, J., dissenting);
Gillette v. United States, 401 U.S. 437, 453 (1971).

   /16/ Indeed, in United States v. Means, 627 F. Supp. 247 (D.S.D.
1985), the court relied on the decision of the district court in the
present case in concluding that an Indian religious group was entitled
on free exercise grounds "to a special use permit that would allow
them to establish a religious camp" on an 800-acre site in a national
forest (see 627 F. Supp. at 270).  (We have not sought appellate
review of this determination;  the district court stated that its
decision was not appealable (id. at 271-272).  The Forest Service and
the Department of the Interior inform us that more than 30 other
religion-based claims urging particular uses of federal land are now
pending at various stages of the administrative process.  These claims
may be resolved in the administrative process.  If they are not,
however, the claimants may attempt to require the government to comply
with their demands by invoking the interpretation of the Free Exercise
Clause adopted by the court below.

   /17/ If the judgment below is not reviewed at this stage of the
proceedings, the First Amendment determination will become final and
definitively preclude the government actions at issue here.

   /18/ The Forest Service stands ready to reconsider the logging plan
in light of the 1984 wilderness designation if the injunction
prohibiting all logging in the area is invalidated as a result of this
Court's decision.  See note 12, supra.

   /19/ If the Court believes that review is not appropriate because
of the statutory grounds for the district court's injunction, it could
simply vacate the lower courts' constitutional determinations.  The
lower courts would be free to reinstate those rulings after the
government satisfies the relevant statutory requirements.

   APPENDIX