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, 1987 On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit Brief for the Petitioners II PARTIES TO THE PROCEEDING In addition to the petitioner listed in the caption, Dale Robertson, 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 Summary of argument Argument: The decisions to construct the final six-mile segment of the G-O road and adopt the management plan do not violate the Free Exercise Clause A. The challenged land management decisions do not burden the Indian respondents' free exercise rights B. Even if the Forest Service's decisions infringe upon interests protected by the Free Exercise Clause, the governmental interests supporting those decisions are sufficiently weighty to justify the infringement on respondents' rights Conclusion OPINIONS BELOW The decision of the court of appeals on rehearing (Pet. App. 1a-37a) is reported at 795 F.2d 688. The prior decision of the court of appeals (Pet. App. 38a-52a) is reported at 764 F.2d 581. The decision of the district court (Pet. App. 53a-91a) is reported at 565 F. Supp. 586. The prior decision of the district court denying respondents' motion for a preliminary injunction (Pet. App. 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 petition was filed on that date and was granted on May 4, 1987 (J.A. 281). 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 This case concerns the limitations imposed by the Free Exercise Clause of the First Amendment upon the federal government's authority to manage the public lands. Specifically at issue is an area of approximately 25 square miles in the Six Rivers National Forest in northwestern California. This area is located in the northern section of the forest between the Smith and Klamath Rivers. Pet. App. 3a. /1/ 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. Respondents have challenged the Forest Service's decision to construct the final six-mile section of a 55-mile paved road through the forest and its adoption of a management plan governing the harvesting of timber in this portion of the forest. 1. The Indians' Religious Beliefs. The land management decisions at issue in this case affect an area known to the Yurok, Karok, and Tolowa Indians as the "high country." /2/ Since at least the early part of the nineteenth century and continuing to the present, the high country has been considered sacred by these tribes and many of their religious beliefs and rituals have focused upon that area. Regular visits to the high country have played a critical part in the Indians' religious practice. /3/ One element of the Indians' religious beliefs is "a religious complex generally called World Renewal whose purpose is the stabilization and preservation of the earth from catastrophe and of mankind from disease" (J.A. 111). This goal is pursued through dances held at specified times and places (id. at 111-118), a necessary precursor of which "is the pre-dance preparatory medicine made by the medicine man at specific sites in the high country" (J.A. 113). The district court found that "(t)he 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" (Pet. App. 58a). The high country also is important in the acquisition of personal spiritual power by individual tribe members. Thus, it is believed that persons who have the ability to cure the sick derive their powers from the high country during sojourns of different types and durations. J.A. 120-128. According to the Indians' beliefs, the doctors draw their powers from pre-human woge-spirits who went to the mountains with the coming of humans to the earth. "The high places, then, are the focal source of curative power for those who live in Northwest California." Id. at 125. The high country is likewise important in tribe members' acquisition of personal "medicine" for particular purposes other than curing the sick, such as obtaining good luck in singing, hunting, gambling, love, or other endeavors. J.A. 128-137. A period of preparation generally precedes a visit to the high country for spiritual purposes. The individual "enters the high country to make medicine at a walk or a run"; he must select the trail appropriate for both the type of "medicine" that he seeks and his own abilities. J.A. 133-134. The individual also performs rituals at specific sites in the high country, with the particular site depending upon both the purpose of his visit and the individual's prior religious experiences. "Individuals progressively use sites of increasing power and this progression is a necessary part of religious growth. Experience at the lower levels of medicine is a prerequisite for attainment of power at the high levels" (J.A. 181). Sites for religious rituals include Chimney Rock, Doctor Rock, and Peak 8, all of which are rock outcroppings located at relatively high altitudes. J.A. 111, 123, 133; see also id. at 216 (map), 147-178 (discussing particular sites). According to the Indians' beliefs, the religious nature of a particular site rests upon more than the physical characteristics of the immediate surroundings. "The quality of silence, the aesthetic perspective, and the physical attributes, are an extension of the sacredness of that particular site" (J.A. 148). Accordingly, "successful use of the high country is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence and an undisturbed natural setting." Id. at 181; see also Pet. App. 9a (footnote omitted) (the "unitary pristine nature of the high country is essential to * * * religious use"), id. at 58a (emotional and spiritual exchange with the creator "is made possible by the solitude, quietness, and pristine environment found in the high country"). 2. The Proposed Administrative Actions. a. In the 1930s, the United States Forest Service upgraded the routes through the northern portion of the Six Rivers National Forest that had been used by miners and other travelers during the pervious century, converting those routes into more formal trails and low-standard roads. With the growth of the timber industry in the 1950s and 1960s, and even more urgently in 1978 when Congress indicated its concern about the adverse impact upon the economies of Del Norte and Humboldt Counties from the expansion of Redwood National Park (see Pub. L. No. 95-250, Section 102(a), 92 Stat. 166), 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. The northern 20 miles of the road are located on non-federal land and maintained by Del Norte County; the remaining 55 miles are located within Six Rivers National Forest. See J.A. 216 (map). The basic purpose of the G-O road is to provide a route for hauling the large amount of timber that may be harvested from nearby national forest lands. The upgraded road is designed to enhance competition among timber mills by increasing the number of mills accessible from the national forest lands. The upgraded road also enhances the public's access to this and other national forests, thereby increasing recreational opportunities. Finally, the improved road will allow for more efficient maintenance and fire control. See J.A. 95, 100-101, 103, 220-222; Tr. 1258-1259; 1332-1335. The Forest Service informs us that it has spent approximately $22 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 -- is all that remains unpaved. 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 Preservation 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. Pet. App. 4a, 55a, 85a. The Forest Service commissioned a comprehensive study of 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 Theodoratus Report). The 423-page report contains a comprehensive ethnographic study of the Indians' culture with specific emphasis on religious beliefs and practices; the report also surveys the area's archeological sites. 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. Pet. App. 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 (Pet. App. 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, and rejecting the alternative of not upgrading the Chimney Rock section and leaving the G-O road incomplete (see J.A. 100-105). /4/ The forester observed 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" (J.A. 103). The forester stated that the alternative selected is "the farthest removed from contemporary spiritual sites; thus, the adverse audible intrusions associated with the road would be less than all other alternatives" (J.A. 102). /5/ He also stated 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 104). /6/ The Forest Service authorized the construction of the Chimney Rock road project in July 1982. See J.A. 91-99. 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 an accompanying environmental impact statement, for portions of the Blue Creek and Eight-Mile Planning Units of Six Rivers National Forest that are largely roadless, undeveloped forest. /7/ 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. Pet. App. 3a-4a, 55a, 59a. Respondents appealed that decision. Following a remand of the matter by the chief of the Forest Service, the regional forester on February 19, 1981, directed the forest supervisor to reduce the proposed timber harvest by 21% to 733 million board feet. (J.A. 106-109). The modification rested in part upon the Indian religious and cultural considerations identified in the Theodoratus Report. The regional forester's decision established protective zones around Indian religious sites, forbidding all harvesting and other management activities within a one-half mile radius of those 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. Pet. App. 4a, 55a, 59a. 3. Respondent's -- 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 (J.A. 5-66). 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 statutes. /8/ The district court denied respondents' motion for a preliminary injunction barring construction of the G-O road (Pet. App. 92a-102a). Following a trial, the district court entered judgment in favor of respondents (Pet. App. 53a-91a). It first concluded that the proposed construction of the road and implementation of the management plan violated respondents' rights under the Free Exercise Clause. Such action, the court held, "would seriously impair the Indian (respondents') use of the high country for religious practices" because it would "seriously damage the * * * visual, aural, and environmental qualities of the high country" (Pet. App. 63a, 64a-65a). /9/ That effect constituted a burden on the Indian respondents' free exercise of religion (id. at 65a-66a), which the government had failed to justify by demonstrating an overriding state interest. Construction of the Chimney Rock section, according to the court, "would not materially serve several of the claimed governmental interests" (id. at 66a). /10/ The court further stated that any increase in the efficiency of the 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" (Pet. App. 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, and 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.). /11/ The district court also 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 in certain respects. Pet. App. 75a, 81a-87a. /12/ Finally, the district court concluded that the construction of the road and implementation of the management plan would violate the Clean Water Act (Pet. App., 87a). /13/ 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 (Pet. App. 91a). 4. 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. That statute designates a substantial portion of the Blue Creek and Eight-Mile areas of Six Rivers National Forest as a wilderness area (Section 101(a), 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 grounds 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). That strip is located so as to allow construction of the road planned by the Forest Service, which would follow a slightly different route from the present unpaved road. Because no similar exclusion was made for the unpaved road, that road is now located in wilderness area and, accordingly, is closed to general vehicular traffic (see 16 U.S.C. 1133(c)). The only prospect for connection of the two paved segments of the G-O road, therefore, is proceeding with construction of the Chimney Rock section. The court of appeals panel issued a decision on June 24, 1985, affirming the district court's decision in part and vacating in part (Pet. App. 38-52a). The government 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). 5. On rehearing, a divided panel of the court of appeals substantially affirmed the decision of the district court (Pet. App. 3a-37a). /14/ 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. /15/ 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.). /16/ The court of appeals found that no compelling government interest justified construction of the road. The court stated (Pet. App. 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 (Pet. App. 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). Judge Beezer dissented with respect to the free exercise issue (Pet. App. 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 (Pet. App. 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 medicinal 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. /17/ SUMMARY OF ARGUMENT This case presents questions of fundamental importance regarding the interaction between the Free Exercise Clause and the government's authority to manage the public lands. Respondents challenge the construction of the final six-mile segment of a road through a national forest and the activities contemplated under a Forest Service land management plan on the grounds that their general religious beliefs, as well as the effectiveness of certain religious rituals, are dependent upon the preservation in its natural state of the area of the Six Rivers National Forest that would be affected by these government actions. Respondents assert that because the construction of the road and the adoption of the management plan would disturb the natural environment, and thereby infringe their religious beliefs, those actions are prohibited by the Free Exercise Clause. This Court's decisions establish a two-step inquiry in evaluating claims that government has infringed rights protected by the Free Exercise Clause. As a threshold matter, the claimant must establish that the challenged government action burdens his religious liberty in a manner that implicates the constitutional guarantee. Even if such a burden is demonstrated, the government action may be upheld if it is supported by a sufficiently weighty government interest. A. Respondents have failed to show that the government actions at issue here burden their religious liberty in a manner that triggers the protection of the Free Exercise Clause. This Court's decisions define the freedom to act guaranteed by the Free Exercise Clause as to the right to shape one's own religious conduct free from the influence of coercive government action, whether in the form of direct regulation or in the form of conditions upon a public benefit that require the compromise of religious faith. The decisions to build the road and adopt the land management plan do not fall into either of these categories. Indeed, these decisions are not directed toward respondents at all, but rather concern the government's management of its own property in ways that have unavoidable but quite incidental effects on individuals. Far from resembling any case in which this Court has found a burden on rights protected by the Free Exercise Clause, the present case is very similar to Bowen v. Roy, No. 84-780 (June 11, 1986), in which the Court concluded that the plaintiffs had failed to satisfy that threshold requirement. The Court there 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)). Since respondents' claim rests on essentially the same contention, it too must fail. Respondents' assertion of a burden on their free exercise rights is defective for the additional reason that what they actually seek is an affirmative benefit from the government -- the management of government property in a manner that enhances the practice of their religion. This Court has in a variety of contexts rejected the contention that a constitutional right carries with it the requirement that the government subsidize the exercise of that right. The Free Exercise Clause simply does not require government to provide individuals with the wherewithal to engage in religiously motivated conduct. We recognize that many Indian religious sites are located on land owned by the federal government, providing numerous occasions for collision between Indian religious beliefs and government land management activities. The conclusion that the Free Exercise Clause is not implicated by the government actions at issue here does not mean that governmental agencies have been left free to manage publicly owned lands in any manner that they choose or to ignore the significance that particular land may hold for a particular religious group. To the contrary, the political Branches have proven receptive to requests for preservation of government land on the ground that the land is significant to Indian religious beliefs. In addition, specific statutory provisions require policymakers to give careful consideration to Indian religious interests before authorizing government action that infringes upon those interests. Indeed, the Forest Service's solicitude for the Indian's interests in this case is a textbook example of such sensitive government decision making. B. Even if the Court concludes that the land management decisions at issue here do burden respondents' free exercise rights, those decisions should be upheld because they are supported by a sufficiently weighty government interest. The Court has stated that government action burdening an individual's free exercise rights must be justified by a compelling interest, but it has never applied that standard in the context of a challenge to government action involving the management of public land. The government has a strong interest in managing the public domain pursuant to statutory procedures and in a manner that best harmonizes the competing land use considerations articulated by Congress. Not only the government, but many individuals engaged in all manner of commercial and recreational endeavors have a direct interest in the ways in which the public domain is utilized and in the process by which those decision are reached. Due consideration for the proper exercise of this important governmental responsibility requires that the balance between government and individual interests be struck somewhat differently with respect to free exercise claims relating to the government's authority to control the physical development of its land, such as the claim asserted by respondents here. A showing of the reasonableness of the government action should be sufficient to justify a land management decision that is subject to scrutiny under the Free Exercise Clause. The decision to construct the final six-mile section of the G-O road was eminently reasonable. The road will improve recreational access to the area, increase competition for federal timber contracts, and improve the efficiency of the administration of the area by the Forest Service. Indeed, the 1984 designation of the surrounding area as wilderness has required the closing of the former route connecting the two completed portions of the G-O road. The choice is now between a paved road or no through road at all. The government interest in preserving a road through the forest is clearly sufficient to satisfy the applicable constitutional standard. ARGUMENT THE DECISIONS TO CONSTRUCT THE FINAL SIX-MILE SEGMENT OF THE G-O ROAD AND ADOPT THE MANAGEMENT PLAN DO NOT VIOLATE THE FREE EXERCISE CLAUSE. The Free Exercise Clause "embraces two concepts, -- freedom to believe and freedom to act." Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); see also McDaniel v. Paty, 435 U.S. 618, 626-628 & n.5 (1978) (plurality opinion). An individual's freedom to believe is aboslutely protected against government regulation. "Government may neither compel affirmation of a repugnant belief; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities; nor employ the taxing power to inhibit the dissemination of particular religious views." Sherbert v. Verner, 374 U.S. 398, 402 (1963); see also Braunfeld v. Brown, 366 U.S. 599, 603 (1961) (plurality opinion) ("(c)ompulsion by law of the acceptance of any creed or the practice of any form of worship is strictly forbidden. The freedom to hold religious beliefs and opinions is absolute."). An individual's freedom to act in a manner consistent with his religious beliefs is accorded somewhat narrower constitutional protection. "Conduct remains subject to regulation for the protection of society"; at the same time, however, "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom" (Cantwell v. Connecticut, 310 U.S. at 304 (footnote omitted)). This Court has devised a two-step inquiry to evaluate claims that government has infringed the freedom to act protected by the Free Exercise Clause. As a threshold matter, the claimant must establish that government has "actually burden(ed) (his) freedom to exercise religious rights." Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 (1985); see also Hobbie v. Unemplyment Appeals Comm'n, No. 85-993 (Feb. 25, 1987), slip op. 3-5; Sherbert v. Verner, 374 U.S. at 403 (first inquiry is whether the government action "imposes any burden on the free exercise of (the claimant's) religion"). Even if a burden on free exercise rights is established, the government action may be upheld when "there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause." Wisconsin v. Yoder, 406 U.S. 205, 214 (1972); see also United States v. Lee, 455 U.S. 252, 257-258 (1982). The basis for the court of appeals' decision appears to be that the land management decisions interfere with the Indian respondents' freedom to act in accordance with their religious beliefs. /18/ We demonstrate below, however, that the challenged decisions do not impose a burden upon respondents' religious liberty that is cognizable under the Free Exercise Clause. Even if the government actions are found to burden respondents' free exercise rights, moreover, they do not violate the Constitution because they are justified by a sufficiently weighty governmental interest. A. The Challenged Land Management Decisions Do Not Burden The Indian Respondents' Free Exercise Rights As we have discussed, the threshold inquiry under the Free Exercise Clause is whether the challenged government action burdens the claimant's religious liberty in a manner that implicates the constitutional guarantee. We do not dispute the sincerity of the Indian respondents' religious beliefs. And we do not quarrel with the determination of the courts below that the government actions at issue here infringe upon important elements of those religious beliefs. The construction of the G-O road and the activities contemplated by the land management plan obviously will disturb the natural environment of the high country. Respondents state that their faith prohibits any such disturbance and that the effectiveness of their religious rituals is dependent upon "the unitary pristine nature of the high country" (Pet. App. 9a); it is not for government to second-guess respondents' interpretation of the tenets of their religion. See United States v. Lee, 455 U.S. at 257; Thomas v. Review Board, 450 U.S. 707, 716 (1981). But these facts by themselves do not suffice to establish a burden upon respondents' interests cognizable under the Free Exercise Clause. Not every government action that makes more difficult the practice of a particular religious faith amounts to a burden that must be justified by compelling policy interests. This Court's decisions make clear that the freedom to act guaranteed by the Free Exercise Clause is much more narrowly defined. It encompasses the right to shape one's own religious conduct free from coercive governmental action, whether in the form of direct prohibitions or commandments or conditions upon the right to a public benefit that require the compromise of one's religious faith. /19/ The Free Exercise Clause is not a mandate for judicial scrutiny of any and all governmental conduct which to a given believer produces a less congenial world. Like many other official actions which in no sense coerce a decision against faith, therefore, the government's nondiscriminatory decisions regarding the management of the public lands simply do not implicate the Free Exercise Clause. 1. This Court's decisions make clear that government burdens the freedom to act protected by the Free Exercise Clause only when it coerces an individual to engage in conduct inconsistent with his religious beliefs. "(I)t is necessary in a free exercise case for one to show the coercive effect of the enactment as it operates against him in the practice of his religion." Abington School District v. Schempp, 374 U.S. 203, 223 (1963); see also Harris v. McRae, 448 U.S. 297, 321 (1982); Board of Education v. Allen, 392 U.S. 236, 249 (1968). Government coercion often takes the form of direct regulation of religiously motivated conduct. In United States v. Lee, supra, for example, the plaintiff challenged a statute requiring him to pay a portion of his employees' social security taxes, asserting that his religious beliefs prohibited him from participating in the social security system. While ultimately upholding the statute, this Court stated that "(b)ecause the payment of the taxes or receipt of benefits violates Amish religious beliefs compulsory participation in the social security system interferes with their free exercise rights" (455 U.S. at 257 (emphasis added)). /20/ Most of the other cases in which the Court has found a burden on free exercise rights involve similar direct regulations of the conduct of the individual asserting the free exercise claim. Wisconsin v. Yoder, 406 U.S. at 218 (the challenged compulsory school attendance law "affirmatively compel(led individuals), under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs"); Gillette v. United States, 401 U.S. 437, 461-462 (1971) (mandatory military service obligation); Prince v. Massachusetts, 321 U.S. 158 (1944) (prohibition on child labor); Cantwell v. Connecticut, supra (licensing requirement for religious solicitation); see also Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. at 303-304 (no burden on free exercise rights where statute did not require individuals to act in a manner inconsistent with their religious beliefs). The Court has also found governmental coercion sufficient to trigger the protections of the Free Exercise Clause in situations where government forces individuals to choose between the relinquishment of a governmental benefit and the compromise of religious belief. In Sherbert v. Verner, supra, for example, Sherbert had been discharged for her refusal to work on Saturday, which was her Sabbath, and was denied unemployment benefits on the ground that her refusal to work on Saturday was not a permissible reason for declining to accept work. The Court noted that "no criminal sanctions directly compel (Sherbert) to work a six-day week," but observed that her "declared ineligibility for benefits derives solely from the practice of her religion" and that "the pressure upon her to forego that practice is unmistakable" (374 U.S. at 403, 404). The Court stated that the denial of Sherbert's claim for unemployment benefits had the effect of forcing her to choose "between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand" (374 U.S. at 404). It concluded that "(g)overnmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against (Sherbert) for her Saturday worship" (ibid. (emphasis added)). Sherbert and its progeny thus stand for the proposition that the Free Exercise Clause's protection for religiously grounded conduct is called into play when the government subjects an individual to the choice of obtaining a benefit or complying with the dictates of faith, "thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Board, 450 U.S. at 717-718; see also Hobbie v. Unemployment Appeals Comm'n, No. 85-993 (Feb. 25, 1987), slip op. 3-5. /21/ The Court's recent decision in Bowen v. Roy, No. 84-780 (June 11, 1986), further illuminates the contours of the protection conferred by the Free Exercise Clause. One of the contentions advanced by the plaintiffs in Roy was that the government's use of a social security number to identify their daughter would "serve to 'rob (her) spirit' * * * and prevent her from attaining greater spiritual power" (slip op. 2-3). Eight Justices joined in reversing the district court's injunction barring the government from using the social security number issued in the daughter's name, holding that the plaintiffs had not established a free exercise claim because "(t)he Federal Government's use of a Social Security number (to identify the plaintiffs' daughter) does not itself in any degree impair (the plaintiffs') 'freedom to believe, express, and exercise' (their) religion" (id. at 7 (footnote omitted)). The Court stated that "(j)ust as the Government may not insist that (the plaintiffs) 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" (slip op. 6). Because the government action challenged in Roy involved no coercion of the plaintiffs to do or refrain from doing anything at all, but instead related solely to the government's management of its own affairs, the government action did not burden the plaintiffs' free exercise rights. /22/ 2. The courts below found that the decisions to construct the G-O road and adopt the management plan burden the Indian respondents' free exercise rights because the resulting activities would "seriously damage the * * * visual, aural, and environmental qualities of the high country" (Pet. App. 64a-65a). Since those qualities are an essential element of the Indians' religious beliefs, the government action would lead to an "irreparable impact on the spiritual and physical well-being of the adjacent Yurok, Karok, and Tolowa communities" (id. at 10a (citation and quotation marks omitted)). The conclusion that these effects amount to a burden on respondents' free exercise rights is wrong for two separate reasons. a. The facts proffered by respondents to establish a burden on their free exercise rights are plainly insufficient under the standard set forth in this Court's prior decisions. The land management decisions challenged by respondents do not command or coerce respondents to perform an act prohibited by their religion or to refrain from performing an act mandated by their religion. Indeed, these decisions are not directed toward respondents at all, but rather concern the government's management of its own property in ways having unavoidable but incidental effects on individuals. /23/ Far from resembling any case in which this Court has found a burden on rights protected by the Free Exercise Clause, the present case is very similar to Bowen v. Roy, supra, in which the Court concluded that the plaintiffs had failed to satisfy that threshold requirement. Respondents' claim here -- that the construction of the road will impair the Indians' spiritual life and practices -- rests upon the same basic proposition as did the plaintiffs' claim in Roy. The underlying contention is that the Free Exercise Clause not only shields an individual from direct or indirect government coercion, but also confers a right to insist that, in the absence of compelling countervailing concerns, government's own affairs be conducted in a manner that will assist in the individual's spiritual development. This Court observed in Roy that it had never before found "the First Amendment to require 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)). It then proceeded to reject that proposition, holding that "(t)he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens" (ibid.). "'The Free Exercise Clause is written in terms of what the government cannot do to the individual,'" the Court stated, "'not in terms of what the individual can extract from the government.'" Ibid., quoting Sherbert v. Verner, 374 U.S. at 412 (Douglas, J., concurring). Roy clearly compels the rejection of respondents' claim here. Respondents argue that the Free Exercise Clause requires the government to manage federal land in a way that is consistent with their religious beliefs about how that land should be maintained. Since the Clause does not "require the Government itself to behave in ways that the individual believes will further his or her spiritual development" (Roy, slip op. 6 (emphasis in original)), it does not require the implementation of respondents' religiously motivated land management plan. /24/ Moreover, the rule adopted in Roy is eminently sensible. The basic purpose underlying the free exercise inquiry is to ascertain whether the challenged government action impairs an individual's freedom to think or act pursuant to the dictates of his religious beliefs. Accordingly, it is most appropriate that the existence of a governmental restriction upon the individual's belief or conduct -- his ability to follow his own lights -- should serve as the trigger for constitutional scrutiny. Altering the scope of the Free Exercise Clause so as to encompass claims like the one advanced here would work an essentially limitless expansion in the types of government action subject to free exercise scrutiny. An individual may, by religious conviction, attach significance to practically any government conduct or property. For example, an individual could assert that expenditure of government funds for social welfare programs is required by his religious beliefs and that the failure to expend funds in that matter will nullify the spiritual effect of his religious observances; others could hold the contrary view. Another individual could assert that eagles are sacred and the use of the eagle as our national symbol constitutes an affront that interferes with his religious practices. Others could argue that use of government funds to assist certain foreign governments, or the refusal to grant such assistance, offends their religious principles. All of these claims resemble the claim advanced by respondents in that the asserted free exercise burden is an impairment of spiritual welfare resulting from government policies that in no way compel or coerce religious conduct or belief. Such claims are likely to be especially prevalent in respect to the public lands. The natural environment is often an important element in Indian religious belief; many government actions affecting the environment thus could cause the sort of impairment of spiritual welfare asserted by respondents here. /25/ And no principle of law limits such claims to adherents of traditional religions or to sites historically used for religiously purposes. An individual is free to conclude for himself that a particular characteristic of any government property -- park, public building or monument -- is central to his religious beliefs. For such an individual, government interference with that characteristic would constitute an impairment of spiritual welfare even if the government action does not coerce or compel religious conduct or belief. The essential genius of the Religion Clauses is that the definition of religion is left in the hands of the people, not to be usurped by government. See, e.g., Thomas v. Review Board, 450 U.S. at 714-716; United States v. Ballard, 322 U.S. 78, 86-88 (1944); cf. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952). But it is this very subjectivity in the definition of religion that calls out for an objective limit on the scope of the Free Exercise Clause. There is otherwise a danger that, freed of the clear limitation announced in the Court's prior decisions -- that the challenged regulation must coerce the claimant to act in a manner inconsistent with his religious beliefs -- any government action would potentially be subject to judicial review under a compelling interest standard. In order to avoid that result, the Court should adhere to the rule announced in Roy and hold that respondents have failed to demonstrate a burden on their free exercise rights. b. The court of appeals based its contrary conclusion in part upon an analogy to this Court's reasoning in Sherbert, intimating that the land management decisions in issue here impose an "indirect" burden on respondents' rights suffice to trigger the Free Exercise Clause (see Pet. App. 11a). In fact, respondents are situated far differently from the plaintiffs in Sherbert and its progeny. Whereas the Court in those cases found a burden upon free exercise rights because the plaintiffs were put to a choice of forsaking their beliefs or relinquishing benefits to which they would otherwise be entitled, respondents are put to no such choice. Rather than seeking protection from a coercive limitation upon a government benefit program, as in Sherbert, respondents here assert a constitutional right to their own individualized benefit program -- the management of lands owned by the government in a way that enhances the practice of respondents' religion. Their claim thus amounts to a request that the government subsidize their religious practices. /26/ This Court has in a variety of contexts rejected the contention that a constitutional right carries with it the requirement that the government subsidize the exercise of that right. "It is one thing to say that a State may not prohibit (an activity) and quite another to say that such (activity) must * * * receive state aid" (Norwood v. Harrison, 413 U.S. 455, 462 (1973)). Thus, in Harris v. McRae, supra, the Court rejected the argument "that a woman's freedom (to choose whether to have an abortion) carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices" (448 U.S. at 316). "(A)lthough government may not place obstacles in the path of a woman's exercise of her freedom of choice," the Court stated, "it need not remove those not of its own creation." Ibid.; see also Buckley v. Valeo, 424 U.S. 1, 94-95 (1976) (per curiam) (recognizing difference between a prohibition and a refusal to provide a financial subsidy); cf. Houchins v. KQED, Inc., 438 U.S. 1, 8-9, 15-16 (1978) (plurality opinion) (free press guarantee bars government interference with the press, but does not impose affirmative duty upon government to provide the press with information). The Free Exercise Clause similarly should not be construed to require government to provide a subsidy to religiously motivated practices. No one would contend that if a government had no employment insurance program at all, the Free Exercise Clause would require the payment of benefits to persons discharged because they observe their Sabbath on Saturday. Similarly, the Clause does not require the government to provide respondents with what is essentially the equivalent of a cash payment -- the management of public property in a way that enhances their spiritual development, but imposes additional costs or burdens upon the public at large. See Sherbert v. Verner, 374 U.S. at 412 (Douglas, J., concurring) ("(t)he fact that government cannot exact from me a surrender of one iota of my religious scruples does not, of course, mean that I can demand of government a sum of money, the better to exercise them"); Crow v. Gullet, 541 F. Supp. 785, 791-792 (D.S.D. 1982) ("the free exercise clause places a duty upon (government) to keep from prohibiting religious acts, not to provide the means or the environment for carrying them out"), aff'd on opinion below, 706 F.2d 856 (8th Cir.), cert. denied, 464 U.S. 977 (1983). /27/ 3. The fact that the Free Exercise Clause is not implicated if the federal government decides to manage the public lands in a manner inconsistent with Indian religious beliefs does not mean that government agencies have been left free to ignore those religious beliefs -- and the effect of their actions upon believers -- in formulating land management policy. To the contrary, the United States has repeatedly recognized its moral obligation to deal fairly with the Indians. Not only has Congress proven itself willing to adopt legislation protecting Indian religious sites and practices, but existing statutes impose upon the Executive Branch a general obligation to take the Indians' religious heritage into account in all aspects of government decision making. Congress's "distinctive * * * response" to the Indians' concerns undercuts any claim that scrutiny under the Free Exercise Clause is necessary to ensure that Indian religious interests will be considered in the government decision-making process. Cf. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 443 (1985). /28/ First, Congress has expressly adopted legislation accommodating specific Indian religious interests in federal land of the type asserted by respondents here. See, e.g., 16 U.S.C. (Supp. III) 543f (requiring "nonexclusive access to (the Mono Basin National Forest Scenic Area) by Indian people for * * * traditional cultural and religious purposes"); 16 U.S.C. 228i (designating portion of Grand Canyon National Park as land held in trust for Havasupai Indians with specific proviso that land may be used for religious purposes); Pub. L. No. 98-408, 98 Stat. 1533 (setting aside land for the Zuni Indians for religious purposes); Pub. L. No. 98-344, 98 Stat. 315 (setting aside for the Pueblo de Cochiti Indians federal land containing important religious sites); Pub. L. No. 91-550, 84 Stat. 1437 (setting aside land for use by the Pueblo de Taos Indians for traditional religious purposes). Indeed, the wilderness designation of the portion of Six Rivers National Forest containing much of the high country (see page 11, supra) is another example of Congress's willingness to act to protect Indian religious interests. That designation, which has the effect of ensuring that a considerable portion of the area will be maintained in a manner consistent with respondents' religious beliefs, was based in part upon Congress's determination that "the area contains several sites * * * of critical importance to Native Americans for cultural and religious purposes" (H.R. Rep. 98-40, 98th Cong., 1st Sess. 32 (1983)). Second, statutes governing administrative decision making require federal agencies to consider Indian religious interests before embarking upon actions that might adversely affect those interests. The National Environmental Policy Act (NEPA) directs federal agencies to prepare an environmental impact statement (EIS) with respect to all "major Federal actions signficantly affecting the quality of the human environment" (42 U.S.C. 4332(2)(C)). These statements both "inject environmental considerations into the federal agency's decisionmaking process by requiring the agency to prepare an EIS" and "inform the public that the agency has considered environmental concerns" (Weinberger v. Catholic Action, 454 U.S. 139, 143 (1981)). The regulations governing the preparation of environmental impact statements indicate that "social effects" related to the effect of the proposed federal action on the environment -- such as effects on Indian religious interests -- must be analyzed in the EIS (40 C.F.R. 1508.14). Moreover, Indian tribes must be invited to assist in identifying the effects to be discussed in the EIS (40 C.F.R. 1501.7(a)(1)). /29/ In the event the administrative process does not perform as intended, persons affected by government action may seek redress in court. Thus, in an action under the Administrative Procedure Act, courts may consider claims that an agency failed to comply with the requirements of NEPA. See, e.g., Strycker's Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980); South Louisiana Environmental Council, Inc. v. Sand, 629 F.2d 1005, 1010-1012 (5th Cir. 1980). And the Administrative Procedure Act also provides for judicial review of the substance of agency action under an "arbitrary and capricious" standard (see 5 U.S.C. 706). In addition, the American Indian Religious Freedom Act, 42 U.S.C. 1996, states 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 * * * , including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." The statute mandates both consultation with Indian tribes affected by government action and elimination of unnecessary interference with Indian religious interests. See Wilson v. Block, 708 F.2d 735, 747 (D.C. Cir), cert. denied, 464 U.S. 956 (1983). The facts of this case are virtually a textbook example of the government's willingness to consider and attempt to accommodate Indian's religious interests. When the potential impact upon Indian religious interests of construction of the G-O road became clear, the Forest Service commissioned full-scale ethnographic and archaeological studies of the cultural resources of the area. See page 6, supra. /30/ After the studies were completed, the plans for the road and the land management plan were modified to mitigate the intrusion into areas of religious significance. See pages 6-8, supra; J.A. 95-98, 100-105, 106-109. /31/ B. Even If The Forest Service's Decisions Infringe Upon Interests Protected By The Free Exercise Clause, The Governmental Interests Supporting Those Decisions Are Sufficiently Weighty To Justify The Infringement On Respondents' Rights Even if the Court concludes, contrary to our submission, that the decisions to construct the G-O road and adopt the management plan do burden the Indian respondents' free exercise rights, those decisions should nonetheless be upheld because they are supported by a sufficiently weighty governmental interest. When this Court has found that government action burdens an individual's free exercise rights, it has inquired whether the government action is justified by a compelling government interest and is narrowly tailored to serve that interest. See page 20, supra. But none of this Court's prior decisions addresses a free exercise challenge to government action involving the management of public land. As a threshold matter, therefore, it is necessary to consider how the compelling interest standard applies in this context. The public lands are a finite resource and each individual parcel is unique. Moreover, the potential uses for a particular piece of property are frequently incompatible. The determination that one use is appropriate for a site may rule out several other competing uses for both that site and the surrounding area. And these potential uses are not simply abstractions. The decision whether to permit timber harvesting or mining, for example, may be critical to the economic well-being of an entire area. The improvement of recreational access, on the other hand, may enable many more citizens to make use of particular property. Land management decisions thus resemble a zero sum game in which the government must choose among various individuals' competing claims to use particular public land. The legal authority governing the management of the public lands reflects these unique characteristics. 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. 472a, 475, 551. 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). /32/ These statutes endow the Secretary with considerable discretion in balancing the myriad competing public policy concerns that must be factored into land use determinations. See Kleppe v. New Mexico, 426 U.S. 529, 539 (1976); Sierra Club v. Morton, 405 U.S. 727, 729 (1972); Sierra Club v. Hardin, 325 F. Supp. 99, 123 (D. Alaska 1971) ("Congress has given no indication as to the weight to be assigned each value and it must be assumed that the decision as to the proper mix of uses within any particular area is left to the sound discretion and expertise of the Forest Service"); cf. S. Rep. 94-583, 94th Cong., 2d Sess. 39 (1975) (leaving to the Secretary of the Interior the task of balancing competing priorities under the Federal Land Policy Management Act). The resource management decisions resulting from the statutory decision-making process -- in the absence of identifiable legal error -- implement the expressed will of Congress concerning the resolution of competing claims for use of the public lands. This Court repeatedly has recognized the significance of the federal interest in putting such determinations into effect, stating that the United states "'no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'" Cornelius v. NAACP Legal Defense & Education Fund, Inc., (NAACP Legal Defense Fund), 473 U.S. 788, 800 (1985), quoting Greer v. Spock, 424 U.S. 828, 836 (1976); see also Perry Education Ass'n v. Perry Local Educators' Assn, 460 U.S. 37, 46, 50-51 (1983); United States Postal Service v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 129-130 (1981). The government's strong interest in resolving conflicting claims for use of the public domain pursuant to statutory procedures and in a manner that best harmonizes the competing policies articulated by Congress must be given appropriate weight in the analysis of claims under the Free Exercise Clause. Indeed, the Court has already recognized this interest in the framework it has developed for considering claims that the government has violated an individual's free speech rights by denying his request for access to government facilities. If the government property is a public forum -- a place "which 'by long tradition or by government fiat (has) been devoted to assembly and debate,'" a place designated by the government "for use by the public at large for assembly and speech", or a place designated for such uses by a particular subset of the general public -- an individualized showing of a compelling interest is required. NAACP Legal Defense Fund, 473 U.S. at 802-803, 806 (citation omitted); see also Perry Education Ass'n, 460 U.S. at 45-46; Widmar v. Vincent, 454 U.S. 263 (1981) (university's policy of permitting use of its property by student groups created a public forum as to the property's use by such groups). With respect to other categories of government property -- nonpublic fora -- the government may exercise control over access "so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are view-point neutral" (NAACP Legal Defense Fund, 473 U.S. at 806). The appropriateness of applying a reasonableness standard in the circumstances of this case follow a fortiori from this analysis. The free exercise claim advanced by respondents does not merely seek access to government property, as is the case with claims made in the free speech context; it intrudes far more deeply into the management of the public lands. Permanently barring the government from maintaining and developing its own property to achieve what it has determined to be the best uses of that property is far more onerous -- and far more preclusive of other individuals' competing claims to use of the particular land -- than requiring the government to allow an individual access to its property while leaving undisturbed the government's physical management of permissible uses. In view of this significantly greater intrusion, the government's distinct interest in defining the permissible uses of its property, and in administering that property for the benefit of all members of the public, must be accorded greater weight in the balancing process here. Accordingly, regardless of whether the land at issue here would qualify as a "public forum" under the definition of that term developed in this Court's free speech cases or under a definition specially devised for the free exercise context, a claim such as that asserted by respondents here is properly reviewed under a reasonableness standard. /33/ Moreover, the reasons that a greater burden of justification is sometimes placed on the government in the First Amendment context simply do not apply here. The Court has stated that government's reduced authority to limit access to traditional public fora, which essentially consist of city parks and streets, stems from the fact that these types of property have "time out of mind * * * been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.); see also NAACP Legal Defense Fund, 473 U.S. at 802. Perhaps largely because of our tradition of separation of church and state, we have no such history of allowing individuals to control the management and development of, as opposed to access to, public land for their own religious purposes. Further, the decision to attach religious significance to a particular parcel of land owned by the government is wholly unrelated to the land use selected by the government; it flows solely from individual religious belief. Since it is well settled that the government may not be divested of its proeprty interests by adverse possession (Utah Power & Light Co. v. United States, 243 U.S. 389, 409 (1917)), an individual cannot acquire greater control over the way public property is to be utilized simply by virtue of his own prior use of that property for religious purposes. Accordingly, a specific showing of reasonableness, combined with the government's general interest in managing its property, is sufficient to establish a compelling interest in support of a particular government land management decision. /34/ Applying that test to the facts of the present case, it seems clear that the decision to construct the final segment of the G-O road was reasonable. /35/ In the 1960s, the Forest Service decided to upgrade the existing G-O road; all of that reconstruction has been completed with the exception of the six-mile segment at issue here, which will connect the completed halves of the road. The road would improve access to the area for recreational purposes; increase competition for federal timber contracts; transfer employment to Del Norte County, thereby alleviating unemployment created in part by other federal actions; and improve the efficiency of the administration of the area by the Forest Service. See J.A. 95, 100-101, 103, 220-222; Gov't Exh. G at 8, 53-56; Tr. 1258-1259, 1332-1335. These benefits are sufficient to establish the reasonableness of the Forest Service's decision to complete the road. /36/ Indeed, the government interests supporting construction of the road have been strengthened as a result of the 1984 wilderness designation of the surrounding area. One effect of that designation is that the unpaved portion of the road is now effectively closed to vehicular traffic. See pages 11-12, supra; 16 U.S.C. 1133(c) (use of motor vehicles prohibited "except as necessary to meet minimum requirements for the administration of the area"). Thus, the choice is not between a completed road with an unpaved section and a fully paved through road. It is between a paved road and no through road at all. We submit that the government interest in preserving a road through this area of the forest is sufficient to satisfy the applicable constitutional standard. CONCLUSION The judgment of the court of appeals should be reversed in pertinent part and the case remanded for further proceedings (see Pet. 26-28). Respectfully submitted. CHARLES FRIED Solicitor General ROGER J. MARZULLA Acting Assistant Attorney General DONALD B. AYER Deputy Solicitor General ANDREW J. PINCUS Assistant to the Solicitor General ROBERT L. KLARQUIST JACQUES B. GELIN Attorneys JULY 1987 /*/ R. Max Peterson, former Chief of the Forest Service, was named as a defendant in his official capacity. Mr. Peterson's successor as Chief of the Forest Service, Dale Robertson, is automatically substituted as a petitioner by operation of Rule 40.3 of the Rules of this Court. /1/ The maps reproduced in the joint appendix portray the relevant area. See J.A. 215-216. /2/ Although the geographic extent of the high country is not defined with precision, the construction of the road and the implementation of the harvesting plan would clearly impact upon it. See J.A. 149-150 (discussing boundaries of the high country). /3/ The following discussion of the Indians' religious beliefs is based largely upon a study commissioned by the Forest Service. See D. Theodoratus, Cultural Resources of the Chimney Rock Section, Gasquet-Orleans Road, Six Rivers National Forest (1979). (Relevant portions of the study are reprinted at J.A. 110-197.) Testimony at trial by members of these tribes corroborated the study's description of the beliefs. See, e.g., J.A. 256-280. /4/ The regional forester noted that "(p)ublic 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" (J.A. 103). 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 104). /5/ The selected route was the farthest from Chimney Rock. Gov't Exh. G at 52-53. /6/ The regional forester also noted that "(t)he effect (of the reconstructed road) on archaeological sites would be indirect in nature. There would be no ground disturbing activities near archaeological properties. Being lower on the slope, there would be fewer adverse visual impacts" (J.A. 102). 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. Id. at 104. /7/ 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). /8/ Respondents also alleged violations of the American Indian Religious Freedom 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. Pet. App. 4a, 56a. /9/ In reaching this conclusion, the district court observed that the Forest Service's actions would not intrude upon the actual sites of Indian religious ceremonies (Pet. App. 59a). The court, however, accepted respondents' claim 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, "environmental degradation of the high country resulting from construction of the road would erode the religious significance of the areas" (ibid.). Finally, "religious use of the area would be impaired by increased recreational use resulting from construction of the Chimney Rock Section" (ibid.). /10/ Thus, the court 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" (Pet. App. 67a). /11/ The court also found that the government's interest in increasing the harvest of timber did not justify the burden on free exercise rights that would result from implementation of the management plan (Pet. App. 68a-69a). /12/ The court rejected a variety of other challenges to the sufficiency of the environmental impact statements (Pet. App. 71a-75a, 80a-81a). It also concluded that the management plan EIS was deficient because it failed to assess properly the impact of the plan on the area's wilderness resource potential (id. at 82a-85a). /13/ The court rejected respondents' claims under the American Indian Religious Freedom Act (Pet. App. 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. /14/ The court of appeals reversed the decision of the district court in only two respects. It 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," and vacated the part of the injunction resting on that portion of the district court's opinion (Pet. App. 19a n.10). 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 district court's order. Pet. App. 20a. /15/ 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" (Pet. App. 9a). /16/ 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 (Pet. App. 11a-13a). /17/ Judge Beezer stated 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 area (pursuant to the management plan were) moot" (Pet. App. 35a). Since it was "not clear whether the district court would have issued an injunction (barring implementation of the management plan) based 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.). /18/ Neither the court of appeals nor the district court suggested that the government has engaged in any regulation or compulsion concerning religious belief itself. Nor could they. The construction of the G-O road and the adoption of the management plan neither compel any individual to affirm any religious belief nor discriminate on the grounds of religious belief. /19/ The government may, of course, exercise coercion in connection with conduct grounded in religious faith where such action can be justified by compelling interests. See Goldman v. Weinberger, 475 U.S. 503 (1986); United States v. Lee, supra. /20/ The regulation was upheld by this Court on the ground that it was justified by an overriding governmental interest (see 455 U.S. at 258-260). /21/ In our amicus curiae brief in Hobbie v. Unemployment Appeals Comm'n, supra, we argued that a neutral noninvidious denial of government benefits standing alone did not entitle an individual to invoke the protection of the Free Exercise Clause because the denial did not "prohibit() the free exercise" of religion. The Court rejected our submission, quoting its prior determinations in Sherbert and Thomas regarding the "coercive impact of the forfeiture of benefits in (the unemployment compensation) situation" (Hobbie, slip op. 4). Thus, the Court did not conclude in Hobbie that the presence of government coercion is irrelevant in determining whether a plaintiff has stated a free exercise claim. To the contrary, the Court recognized the coercion requirement (slip op. 3-5), but concluded that the requirement is satisfied where unemployment benefits are denied on the basis of an applicant's religiously motivated conduct. /22/ The history of the Free Exercise Clause provides additional support for the conclusion that an individual's freedom to act in accordance with his religious beliefs is violated only when the government attempts to coerce the individual to act in a contrary manner. The Court has repeatedly recognized the role of Thomas Jefferson's Virginia Bill of Religious Liberty as an earlier formulation of the ideas embodied in the Religion Clauses of the First Amendment. McGowan v. Maryland, 366 U.S. 420, 437 (1961); Everson v. Board of Education, 330 U.S. 1, 12-13 (1947); Reynolds v. United States, 98 U.S. 145, 163-164 (1878). As enacted, the bill provided in part (12 W. Hening, Statutes of Virginia 86 (1823)): That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief(.) This language emphasizes that the evil against which the First Amendment seeks to protect is government coercion of individual religious choices. See also 1 Annals of Cong. 758 (J. Gales ed. 1834) (James Madison) (First Amendment provides "that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience"). Indeed, Jefferson's express reference to burdens affecting the individual's "body or goods" undercuts any argument that the protected right encompasses an affirmative entitlement to demand that government manage its own resources and activities in a manner that avoids even incidental effects on an individual's religious interests. /23/ The land management decisions cannot be analogized to either of the two types of government compulsion recognized by this Court in its prior decisions. First, they plainly do not directly regulate private conduct. Second, and just as obviously, the construction of the G-O road and adoption of the management plan do not present individuals with a choice between (1) following the precepts of their religion and forfeiting a government benefit, or (2) abandoning those precepts in order to obtain an economic benefit. /24/ The court of appeals attempted to distinguish Roy on two grounds. First, it asserted that the plaintiffs in Roy challenged the government conduct because it "offended (their) religious sensibilities," but that the Forest Service actions "would greatly impair religious exercises of (respondents) in the only place where they can be performed" (Pet. App. 11a (footnote omitted)). The court's characterization of the claim in Roy is incorrect; as we have discussed, the plaintiffs in that case asserted that the government's use of the social security number would rob their daughter of her spirit and "prevent her from attaining greater spiritual power" (slip op. 3). That claim is very similar to respondents' contention that the Forest Service actions at issue here will impair the sacred character of the high country. In both cases, the claim is that the government's decision to manage its affairs in certain ways that are not coercive of any individual's belief or conduct will have a drastic adverse effect upon the spiritual well-being of the plaintiffs. Indeed, the Ninth Circuit's off-handed dismissal of the Roy plaintiffs' claims in terms of their "sensibilities" is exactly the kind of evaluation of the importance and validity of religious beliefs that is precluded by the Free Exercise Clause. 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" (Pet. App. 11a). Of course, the government'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 any difference is relevant. 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 relates to his perception of how the government's action may adversely affect his spiritual life. Moreover, the Court in Roy did not rest its decision on the peculiar factual characteristics of the benefit program at issue in that case, but upon the observation that while the Free Exercise Clause bars the government from prescribing the religious beliefs of individuals, it does not require the government to act in accordance with the religious beliefs of any individual (slip op. 6). /25/ A number of such claims have been the subject of reported decisions. See Wilson v. Block, 708 F.2d 735 (D.C. Cir.), cert. denied, 464 U.S. 956 (1983); Badoni v. Higginson, 638 F.2d 172 (10th Cir. 1980), cert. denied, 452 U.S. 954 (1981); Sequoyah v. TVA, 620 F.2d 1159 (6th Cir.), cert. denied, 449 U.S. 953 (1980); United States v. Means, 627 F. Supp. 247 (D.S.D. 1985), appeal pending, No. 87-5118 SD (8th Cir.); Inupiat Community v. United States, 548 F. Supp. 182, 189 (D. Alaska 1982), aff'd on other grounds, 746 F.2d 570 (9th Cir. 1984), cert. denied, 474 U.S. 820 (1985); 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). 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. See, e.g., All Indian Pueblo Council v. United States, No. 87-0642 JC (D.N.M.) (Free Exercise Clause challenge to construction of electric transmission line across federal land). /26/ The costs of maintaining this land in the manner directed by respondents' religion would, of course, be borne by the United States, not by respondents. Those costs include the additional monetary expense to the government that would result from the failure to complete the G-O road as well as the more general costs to society at large of the loss of the benefits that would flow from the completion of the road. It is noteworthy that claims such as those advanced here could in other cases require the government to forego development of timber or mineral resources that might yield monetary revenues. /27/ Indeed, a simple analogy demonstrates the striking breadth of the new right created by the court of appeals. In the free speech context, this Court has "adopted a forum analysis as a means of determining when the Government's interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. * * * (T)he extent to which the Government can control access depends on the nature of the relevant forum." Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788, 800 (1985); see also Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). The public forum doctrine, however, describes only a "right of access to public property" (Perry Education Ass'n, 460 U.S. at 44 (emphasis added)), and the Court has never suggested that there are other First Amendment limits upon the government's authority to manage its property. Thus, a city's decision to erect an office building on a site currently occupied by a park need not be justified by a compelling government interest. Cf. Perry Education Ass'n, 460 U.S. at 46 (government free to alter character of public forum by designation). The logical implication of the court of appeals' constitutional theory, however, would be that all aspects of government's management of its property are subject to review under the public forum rubric. /28/ To be sure, the protections now available would be strengthened if Indians such as respondents could add a free exercise claim to their arsenal. But, as we show below, respondents cannot contend that it is the Free Exercise Clause or nothing as far as protection for their religious rights are concerned. What they actually seek is a way to ensure that their concerns will be given paramount weight in land use decision making. /29/ Additional procedural protections frequently may be available under the National Historic Preservation Act, 16 U.S.C. 470a. See Pet. App. 85a-86a (discussing the Forest Service's compliance with that statute in this case). /30/ That study is respondents' principal source of evidence in support of their free exercise claim. /31/ Respondents contend that these efforts at mitigation were insufficient, but that is because their religious beliefs preclude the construction of any road at all. /32/ 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. /33/ Claims seeking only access to public property for religious worship are analyzed under the public forum doctrine. See Widmar v. Vincent, 454 U.S. at 269 n.6; page 39, supra. /34/ Of course, if the government engages in invidious discrimination on religious grounds, a First Amendment claim would be made out. And none of the considerations discussed in the text above operate to deprive government of the option of allowing or even facilitating access to government property as an accommodation of religion, nor do they suggest that such accommodation raises problems under the Establishment Clause. /35/ This Court should not consider on this record the merits of respondents' challenges to the management plan because that plan was adopted prior to the 1984 wilderness designation, which bars timber harvesting and road construction in a significant portion of the area covered by the plan. The proper course is to allow the Forest Service to reconsider the plan in light of the 1984 designation. /36/ The district court's rejection of those interests was principally based upon its conclusion that they were not sufficiently weighty to satisfy the compelling interest standard. See Pet. App. 66a-67a. Thus, it found that construction of the road would not make forest administration "significantly more efficient" and that the Forest Service's interest in increased efficiency "cannot justify infringement" of respondents' free exercise rights (id. at 68a). It found the proof of greater competition for federal timber contracts "too speculative" to "provide the basis for denying (respondents') free exercise claim" (ibid.). And it stated that "increased recreational access to the area as a result of construction of the Chimney Rock Section cannot support infringement of (respondents') First Amendment rights" (id. at 67a). Of course, our primary submission -- that respondents' free exercise rights are not burdened here -- obviates any need for these inquiries. Beyond that, we think it clear that a contrary conclusion would be required by application of a proper test of reasonableness.