FILED

NOT FOR PUBLICATION

AUG 31 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FREEDOM FROM RELIGION No. 13-35770 FOUNDATION, INC., a Wisconsin non- profit corporation, D.C. No. 9:12-cv-00019-DLC

Plaintiff - Appellant,

MEMORANDUM*

v.

CHIP WEBER, Flathead National Forest Supervisor and UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture,

Defendants - Appellees,

WILLIAM R. GLIDDEN; et al.,

Intervenor-Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted July 7, 2015 Portland, Oregon

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

Freedom From Religion Foundation, Inc. (“FFRF”) appeals from the district

court’s award of summary judgment to the United States Forest Service (“USFS”)

and Knights of Columbus (“Knights”). The district court held that the

government’s continued authorization of a Jesus Christ statue located on national

forest land did not violate the Establishment Clause. Because the parties are

familiar with the facts, we do not recount them except as necessary. We have

jurisdiction under 28 U.S.C. § 1291 and we affirm.1

FFRF satisfied the three organizational standing requirements. See Hunt v.

Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). First, FFRF-

member Pamela Morris would be able to sue in her own right; she “made a

conscious effort to avoid Big Mountain because of the Jesus Statue,” which she

found “intrusive” and “out of place.” See Hewitt v. Joyner, 940 F.2d 1561, 1564

(9th Cir. 1991) (standing to contest religious displays where displays curtailed

plaintiffs’ use of park); Buono v. Norton, 371 F.3d 543, 546-48 (9th Cir. 2004)

(alleged injury was sufficient where plaintiff was “unable to ‘freely us[e]’ the area

1 We review de novo the district court’s decisions regarding standing and summary judgment. La Asociacion de Trabajadores de Lake Forest v. City of Lake Forest, 624 F.3d 1083, 1087 (9th Cir. 2010).

2 of the Preserve around the cross” (alteration in original)). Second, the interests

FFRF sought to protect were germane to the organization’s purpose. See Hunt,

432 U.S. at 343. And third, because FFRF requested declaratory and injunctive

relief, not money damages, the Establishment Clause claim and the relief sought

did not necessitate individual member participation. See Columbia Basin

Apartment Ass’n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001).

As to the merits, the government’s continued authorization of the statue on

federal land does not violate the Establishment Clause.2

First, USFS’s decision to renew the statue’s permit reflected a primarily

secular purpose. Trunk v. City of San Diego, 629 F.3d 1099, 1107 (9th Cir. 2011)

(“[W]e first inquire as to the purpose of the government action to determine

whether it is predominantly secular in nature.”). The government identified secular

rationales for its continued authorization including the statue’s cultural and

historical significance for veterans, Montanans, and tourists; the statue’s inclusion

in the National Register of Historic Places; and the government’s intent to preserve

the site “as a historic part of the resort.” See Access Fund v. U.S. Dep’t of Agric.,

499 F.3d 1036, 1043 (9th Cir. 2007) (site’s inclusion in the National Register of

2 Our analysis assumes, without deciding, that USFS’s continued authorization of the statue on public land constitutes government action.

3 Historical Places evinces Forest Service’s secular motivations—“the preservation

of a historic cultural area”); Kreisner v. City of San Diego, 1 F.3d 775, 782 (9th

Cir. 1993) (“A reviewing court must be ‘reluctant to attribute unconstitutional

motives’ to government actors in the face of a plausible secular purpose.”).

Although the dissent focuses on the monument’s appearance, that the statue

is of a religious figure, and that some of the initial impetus for the statue’s

placement was religiously motivated, does not end the matter. See Van Orden v.

Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring in the judgment) (“[T]he

Establishment Clause does not compel the government to purge from the public

sphere all that in any way partakes of the religious.”). USFS’s “intent is the key

here, and nothing apart from the [statue’s likeness] suggests a religious motive on

[USFS’s] part.” See Card v. City of Everett, 520 F.3d 1009, 1019-20 (9th Cir.

2008); Access Fund, 499 F.3d at 1044.

Second, USFS’s permit authorization did not constitute an endorsement of

religion. See Trunk, 629 F.3d at 1107, 1109-10. Our determination is based on the

following: (1) there is nothing in the statue’s display or setting to suggest

government endorsement; the twelve-foot tall statue is on a mountain, far from any

government seat or building, near a commercial ski resort, and accessible only to

individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it

4 is privately owned and maintained—“it did not sprout from the minds of

[government] officials and was not funded from [the government’s] coffers,” see

Card, 520 F.3d at 1020; (3) besides the statue’s likeness, there is nothing in the

display or setting to suggest a religious message. The mountain’s role as a summer

and winter tourist destination used for skiing, hiking, biking, berry-picking, and

site-seeing suggests a secular context; the location “does not readily lend itself to

meditation or any other religious activity,” and the setting “suggests little or

nothing of the sacred,” Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the

judgment); see also Card, 520 F.3d at 1020; (4) the flippant interactions of locals

and tourists with the statue suggest secular perceptions and uses: decorating it in

mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as

they ski by, and posing in Facebook pictures; (5) local residents commonly

perceived the statue as a meeting place, local landmark, and important aspect of the

mountain’s history as a ski area and tourist destination; and, (6) there is an absence

of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702

(Breyer, J., concurring in the judgment) (reasoning that the monument’s forty-year

unchallenged history “suggest[s] more strongly than can any set of formulaic tests

that few individuals . . . are likely to have understood the monument as amounting .

. . to a government effort to favor a particular religious sect, . . . to ‘compel’ any

5 ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief’” (alterations

in original)).

Finally, the facts of this case are not commensurate with Trunk’s facts: (1)

the forty-three foot tall cross in Trunk was “visible from miles away and tower[ed]

over the thousands of drivers who travel[ed] daily on Interstate 5,” 629 F.3d at

1103; (2) the cross’s plaque, identifying it as a war memorial, was added only after

litigation began, id. at 1101, 1119; (3) for the majority of its history, the cross was

not, in fact, a war memorial, but a religious symbol and a place where Easter

services continued for more than forty years, id. at 1119-20; (4) the memorial’s

location “in the heart of a largely homogenous and exclusionary community” had a

“history of anti-Semitism that reinforce[d] the Memorial’s sectarian effect,” id. at

1121-22; and, (5) at least for the last two decades, the cross had “become a

flashpoint of secular and religious divisiveness,” and “heated litigation,” id. at

1122.

Appellant shall bear all costs on appeal.

AFFIRMED.

6

FILED

Freedom from Religion Found. v. Weber, No. 13-35770

AUG 31 2015

Portland - July 7, 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

Judge N.R. Smith, concurring:

Given the assumption made by both the majority and the dissent—that the

Forest Service’s action (the renewal of a special use permit) constituted

government action that could violate the Establishment Clause—I agree with the

majority. Under both the Lemon and Van Orden tests, the Forest Service did not

violate the Establishment Clause. However, I write separately, because the

assumption is incorrect. The Forest Service’s renewal of a special use permit for

an existing monument does not constitute government speech.

“There is a crucial difference between government speech endorsing

religion, which the Establishment Clause forbids, and private speech endorsing

religion, which the Free Speech and Free Exercise Clauses protect.” Bd. of Educ.

of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990). When a private

speaker utilizes public property as a forum for expression, government allowance

of that expression does not violate the Establishment Clause as long as the

expression is permitted in a “non-discriminatory manner.” See Kreisner v. City of

San Diego, 1 F.3d 775, 776 (9th Cir. 1993). In short, “[r]eligious expression

cannot violate the Establishment Clause where it (1) is purely private and (2)

1 occurs in a traditional or designated public forum, publicly announced and open to

all on equal terms.” Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S.

753, 770 (1995).

The Knights’ decision to place a statue of Jesus at the Big Mountain Ski

Resort was purely private expression. So, too, is the Knights’ ongoing

maintenance and support of the monument. The only involvement that the

government has had in relation to the monument is (1) the issuance of a special use

permit in 1953, and (2) reissuance of the permit in 1990, 2000, and 2012.

However, the allowance of private speech on public property does not necessarily

turn the private speech into government speech. See id. at 761-63; Kreisner, 1 F.3d

at 784-85.

The key question is whether the Forest Service land has constituted a

traditional or designated public forum, publicly announced and open to all on equal

terms. See Capitol Square, 515 U.S. at 770. History evidences that it has. From

1942 until 1998 (when the Forest Service substantially overhauled its regulations

governing special use permits), the Forest Service had a general policy of granting

special use permits as long as the permitees “compl[ied] with all State and Federal

laws and all regulations of the Secretary of Agriculture relating to the national

forests and . . . conduct[ed] themselves in an orderly manner.” 36 C.F.R. § 251.1

2 (1944). During this time period, nearly seventy permanent monuments were

erected on Forest Service land, with special use permits being issued to a wide

variety of groups, corporations, and individuals. From 1942 to 1998, there can be

no question that Forest Service land qualified as a designated public forum. See

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 469 (2009) (“[A]

government entity may create ‘a designated public forum’ if government property

that has not traditionally been regarded as a public forum is intentionally opened

up for that purpose.” (citation omitted)). FFRF has not provided any evidence that

the Forest Service limited access to the its land in a discriminatory way; in fact the

record demonstrates that the land was open to all on equal terms.

Additionally, the Forest Service’s renewals of the Knights’ special use

permit were done in accordance with neutral, non-discriminatory criteria.

Renewals of existing special use permits are governed by 36 C.F.R. § 251.64. That

regulation states, “When a special use authorization provides for renewal, the

authorized officer shall renew it where such renewal is authorized by law, if the

project or facility is still being used for the purpose(s) previously authorized and is

being operated and maintained in accordance with all the provisions of the

authorization.” Id. (emphasis added). The Knights’ permit complied with these

requirements. For the reasons explained in the majority decision, renewal was

3 lawful. Further, the monument was still being used for the purpose previously

authorized and was operated and maintained in accordance with the permit. That

all permit renewals must satisfy these same, content-neutral criteria demonstrates

the neutrality of the Forest Service’s decision.

Further, the Forest Service’s comments during the renewal process (that

such permits would not be granted under the new regulations and that permits for

other proposed monuments had been rejected) did not display favoritism for the

Knights, but merely reflected the change in the regulations that occurred in 1998.

Since 1998, the grant of new special use permits has been governed by 36 C.F.R. §

251.54, which requires (amongst a long list of other things) that a new permit “will

not create an exclusive or perpetual right of use or occupancy.” Id. §

251.54(e)(1)(iv). The Forest Service Handbook1 explains that to satisfy that

criterion, the proposed use should “not in effect grant title to Federal land to an

authorization holder or . . . create the appearance of granting such a right.” FS

Handbook 2709.11, ch. 10, sec. 12.21, para. 4 (2013). As an example of a use that

may violate this criterion, the Handbook provides “[c]emeteries, monuments, or

other memorials.” Id. Therefore, obtaining a permit to place a new monument

1 The Forest Service Handbook is available at http://www.fs.fed.us/im/directives/dughtml/fsh_1.html.

4 under the current regulations would likely be extremely difficult, if not impossible.

However, this criterion does not apply to renewals of existing special use permits.

As explained above, the renewal of existing permits must only comply with the

neutral requirements of 36 C.F.R. § 251.64. Therefore, that the Forest Service

would not grant a new permit to the Knights under the current regulations is

irrelevant. Like all other existing special use permit holders, the Knights only

needed to comply with neutral regulations to maintain their special use permit.

Thus, the Forest Service’s renewal of the Knights’ permit did not evidence a bias

in favor of religion.

Finally, FFRF argues that Pleasant Grove City, Utah v. Summum prevents us

from conducting a forum analysis in this case, because forum analysis does not

apply to permanent monuments on public property. To support that argument,

FFRF relies on a portion of a sentence from Summum which stated, “[F]orum

analysis simply does not apply to the installation of permanent monuments on

public property.” Summum, 555 U.S. at 480. However, FFRF takes the language

from Summum out of context. Instead, the Court said:

To be sure, there are limited circumstances in which the forum doctrine might properly be applied to a permanent monument—for example, if a town created a monument on which all of its residents (or all those meeting some other criterion) could place the name of a person to be honored or some other private message. But as a general

5 matter, forum analysis simply does not apply to the installation of permanent monuments on public property.

Id. This language did not create a categorical rule against forum analysis when

dealing with permanent monuments. Further, this is one of those limited

circumstances where forum analysis is appropriate. Rather than dealing with a 2.5-

acre city park, which may have a difficult time accommodating permanent

monuments from any and all individuals or groups that may wish to utilize the

forum, we are dealing with the Forest Service’s 193-million acres, which does not

have the same constraint. Therefore, the conclusion that the Forest Service’s land

constituted a designated public forum does not conflict with Summum.

6

FILED

Freedom from Religion Foundation, Inc. v. Weber and United States Forest

AUG 31 2015

Service, No. 13-35770

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PREGERSON, Circuit Judge, dissenting:

The First Amendment freedom of religion clauses serve “to assure the fullest

possible scope of religious liberty and tolerance for all[,] . . . to avoid that

divisiveness based upon religion that promotes social conflict[, and] . . . to

maintain that separation of church and state that has long been critical to the

peaceful dominion that religion exercises in this country.” Trunk v. City of San

Diego, 629 F.3d 1099, 1110 (9th Cir. 2011) (citing Van Orden v. Perry, 545 U.S.

677, 678 (2005)).

First, despite arguments to the contrary, a twelve-foot tall statue of Jesus

situated on government-leased land cannot realistically be looked upon as

“predominantly secular in nature.” Id. at 1107.

Second, to determine the effect of the statue we ask whether “it would be

objectively reasonable for the government action to be construed as sending

primarily a message of either endorsement or disapproval of religion.” Id. at 1109

(quoting Vernon v. City of Los Angeles, 27 F.3d 1385, 1398 (9th Cir. 1994)). I

submit that a “reasonable observer would perceive” the statue situated on

government land “as projecting a message of religious endorsement.” Id. at 1118. I respectfully dissent.

2