Petefish and other climbing guides have won the first round in what looks to be a long court battle between commercial climbers and Native Americans at Devils Tower. U.S. District Court Judge William Downes granted a preliminary injunction June 8 that stops the National Park Service from prohibiting commercial climbing during the month of June. The Park Service had tried to limit climbing activity to protect religious use of the area by Native Americans, but Downes ruled that any ban would amount to entanglement of church and state.
While the government has the right and even the obligation to accommodate American Indian religious practices at Devils Tower, it cannot do so by forcing guides to refrain from leading ascents of the tower in June solely because some Indians find the activity offensive, Downes wrote in his decision.
He also hinted that any attempt by the Park Service to make mandatory a voluntary June moratorium on private climbing at the tower (HCN, 4/15/96), as the agency has suggested it might if individuals continue to climb in large numbers, will meet with similar action on his part.
"Such regulations require climbers to conform their conduct in furtherance of those American Indians' religious necessities. This amounts to impermissible government entanglement with religion," Downes wrote.
The Park Service had issued a climbing management plan in March of 1995 that notified commercial guides of its intention to prohibit commercial climbing on the tower beginning this June.
Efforts also began last year to encourage private climbers not to climb in June out of respect for the growing number of Indians who conduct sun dances, ritual sweats and other ceremonies at the tower around the summer solstice. That voluntary ban cut tower ascents by 85 percent last June compared with the same period in 1994. Park Service officials said this June will likely match last year's reduced numbers.
In his decision, Downes added that the benefits of banning commercial climbing in June were far outweighed by the damage to the First Amendment rights of Petefish and other guides. But he did uphold the rest of the climbing management plan so long as the June moratorium remains voluntary.
"The simple request that climbers refrain from climbing during the month of June ... seems to be a permissible accommodation of American Indian religious practices in light of the government's legitimate interest in protecting and preserving for American Indians their inherent right to exercise the traditional religions," he wrote.
Devils Tower Superintendent Deborah Liggett said that although Downes' decision restricts the Park Service's ability to manage the tower effectively, she was pleased that the judge allowed the rest of the plan to stand. She noted that commercial climbing only represents a fraction of total ascents made at the tower each year. Attorneys for the government said they haven't decided whether to appeal Downes' decision to the 10th Circuit Court.
The more important question, said Liggett, is how individual climbers will respond to the decision: "The plan has the support of the climbing community. I expect most people to continue to respect (the June moratorium)."
* Chris Tollefson
Chris Tollefson writes for the Casper Star-Tribune in Wyoming.