FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

THE ACCESS FUND,                          
                Plaintiff-Appellant,
                                                 No. 05-15585
                v.
UNITED STATES DEPARTMENT OF                       D.C. No.
                                               CV-03-00687-HDM
AGRICULTURE; UNITED STATES
                                                     OPINION
FOREST SERVICE; MIKE JOHANNS,*
            Defendants-Appellees.
                                          
        Appeal from the United States District Court
                 for the District of Nevada
       Howard D. McKibben, District Judge, Presiding

                   Argued and Submitted
        February 15, 2007—San Francisco, California

                      Filed August 27, 2007

   Before: J. Clifford Wallace, Richard D. Cudahy,** and
          M. Margaret McKeown, Circuit Judges.

                 Opinion by Judge McKeown;
                 Concurrence by Judge Wallace




  *Mike Johanns is substituted for his predecessor, Ann M. Veneman, as
Secretary of the Department of Agriculture, pursuant to Fed. R. App. P.
43(c)(2).
  **The Honorable Richard D. Cudahy, Senior United States Circuit
Judge for the Seventh Circuit, is sitting by designation.

                                10525
10528             THE ACCESS FUND v. USDA


                         COUNSEL

Laurence K. Gustafson, Ashley B. Duffie, and Jeremy K. Ker-
nodle, Haynes and Boone, L.L.P., Dallas, Texas, and Marte
D. Lightstone, Miller Stratvert, P.A., Albuquerque, New Mex-
ico, for the appellant.

Sharon Swingle, Michael Jay Singer, Appellate Staff, Civil
Division; Peter D. Keisler, Assistant Attorney General; Daniel
G. Bogden, United States Attorney; Department of Justice,
Washington, DC, for the appellees.


                         OPINION

McKEOWN, Circuit Judge:

  Cave Rock, a large rock formation on the eastern shore of
Lake Tahoe, is many things to many people. To the Washoe
Tribe, it is a site of powerful religious and cultural signifi-
                  THE ACCESS FUND v. USDA                  10529
cance. To historians and archaeologists, it sheds light both on
historical Washoe culture and on the history of American
transportation. And, to rock climbers, it offers some of the
most challenging climbing in the nation. In this appeal, we
consider the United States Forest Service’s efforts to balance
these competing historical, cultural, and recreational needs in
developing a resource management plan for the area. After
considerable study and comment, the Forest Service banned
“the recreational activity of rock climbing” at Cave Rock. The
Access Fund, a climbing advocacy group, challenged that
decision as a violation of the Establishment Clause of the
United States Constitution and as arbitrary and capricious
under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706.

                         BACKGROUND

I.   FACTUAL BACKGROUND

   Partially located within a National Forest, Cave Rock is a
culturally, historically, and archaeologically significant site.
Some of this significance derives from its role as a sacred site
for the Washoe people, Native Americans who have lived in
the Tahoe area for at least 1500 years. Traditional Washoe
view Cave Rock as the site of important mythological events
that are central to their cosmology. It is also a symbol of their
cultural and religious identity.

   Under traditional Washoe beliefs, Cave Rock is “the most
religious feature within the Washoe religion,” and many
Washoe compare Cave Rock to a church. Cave Rock is con-
sidered so powerful and sacred that the health and integrity of
Washoe society may be jeopardized if traditional practices are
not observed there. The Washoe believe the rock is the loca-
tion of an epic confrontation that occurred during the creation
of the Tahoe landscape between water babies who figure
prominently in Washoe mythology and a small weasel brother
(a mythological ancestor of the Washoe).
10530             THE ACCESS FUND v. USDA
   Traditional Washoe assert that Cave Rock is to be avoided
by all people, except Washoe practitioners who have been cal-
led to “seek power or knowledge at the rock.” The presence
of others at Cave Rock, including non-Washoe, is thought to
endanger the lives of all. The cave, the top of the rock, and
the water beneath the rock are particularly sacred.

  The site is also historically and archaeologically significant.
Two Washoe doctors named Welewkushkush and Big Mike
were known to visit Cave Rock during the initial period after
Euro-American settlement. Henry “Moses” Rupert, an ethno-
grapher and the last known traditional Washoe practitioner at
Cave Rock, also visited the site until his death in 1965. The
rock is the only Washoe site that has been subject to archaeo-
logical and ethnographic study, and it contains ancient
wooden rat middens that have paleo-environmental value.

   The rock also reflects developments in the history of Amer-
ican transportation. It has served as an evolving travel corri-
dor that moved aboriginal peoples, early immigrants,
commercial freight, and tourists along the east shore of Lake
Tahoe. The rock originally formed part of a trail used prior to
Euro-American settlement; later on, settlers constructed a
trestle road around the lake side of the rock. In 1931 and
1957, two tunnels were blasted through the rock to handle the
increasing automobile traffic generated by Tahoe tourism, and
as a result, Highway 50 now runs through the rock. The For-
est Service has recognized that “Cave Rock presents a unique
circumstance where four successive generations of road build-
ing are preserved in close proximity.”

   Since the late 1980s, Cave Rock has been a popular area for
rock climbing. All of the rock climbing occurs on National
Forest lands. With the advent of “sport climbing” methods,
Cave Rock’s overhanging walls have become a coveted chal-
lenge for many of the world’s best climbers. Sport climbing
is focused on shorter, very technical parts of the rock, and
Cave Rock presents some of the most difficult routes in the
                  THE ACCESS FUND v. USDA               10531
nation. Sport climbing requires the installation of fixed
anchors, which protect against free-falling. To that end,
climbers drilled permanent bolts into Cave Rock itself.
Climbers expanded climbing routes without Forest Service
approval both inside and outside the main cave area.

   In the early 1990s, unknown individuals added a masonry
floor and arranged rock seating in the cave without Forest
Service approval and in violation of federal regulations pro-
hibiting resource damage to the land. The government alleges
that a group of climbers made these improvements, and the
record suggests that the flooring was added because a climber
fell and broke both of his legs.

   The Washoe consider rock climbing a desecration of Cave
Rock. Many Washoe view the placement of a single climbing
bolt as a defacement, and Washoe representatives have
repeatedly expressed concern that the intimate sustained con-
tact with the rock that is inherent in climbing is more objec-
tionable than the brief transitory effects of traffic passing
through the tunnels that run through the rock.

II.   REGULATORY FRAMEWORK AND AGENCY PROCEEDINGS

   Because Cave Rock is located within a National Forest, the
Forest Service is authorized to develop management plans to
coordinate the multiple uses of the land and to prevent harm
to natural and cultural resources. 16 U.S.C. § 1604(e)(1); 36
C.F.R. Part 219. In 1996, the Forest Service determined that
Cave Rock was eligible for inclusion in the National Register
of Historical Places as a traditional cultural property and
archaeological site. During that time, Forest Supervisor Rob-
ert Harris determined that “technical rock climbing poses an
adverse effect to the National Register eligibility of Cave
Rock.” The Nevada State Historic Preservation Office con-
curred with Harris’s assessment. Although climbing may alter
the rock physically, the drilling of the rock and placement of
anchors has not weakened the structure geologically.
10532             THE ACCESS FUND v. USDA
   In 1998, the Keeper of the National Register confirmed that
Cave Rock was eligible for inclusion on the National Historic
Register as a traditional cultural property, an archaeological
site, and an historic transportation corridor. The Keeper spe-
cifically recognized changes to the rock (including those
changes wrought by climbing) affected its physical integrity,
but nevertheless concluded the traditional cultural signifi-
cance and the archaeological importance of the site survived.

   Shortly after the Keeper made his decision, the Forest Ser-
vice began developing a new management plan for Cave
Rock. The Forest Service first implemented a series of orders
that prevented the installation of new bolts. In January 1999,
Juan Palma, a new Forest Supervisor for the area, solicited
comments at the beginning of the formal planning process for
Cave Rock required by the National Environmental Policy
Act.

   The Draft Environmental Impact Statement detailed five
alternatives for managing Cave Rock, ranging from taking no
action at all to banning all access to Cave Rock except by tra-
ditional Washoe practitioners. The alternative Palma initially
preferred permitted public use, including rock climbing, with
various restrictions on new routes and bolts.

   After considering public comment, including comment
from both the Washoe and members of the climbing commu-
nity, the Forest Service issued a Final Environmental Impact
Statement (“FEIS”). The Forest Service’s proposal sought “to
protect the Cave Rock heritage resource and regulate uses
there in a manner that . . . preserves the historic and cultural
characteristics that make the property eligible for listing on
the National Register.”

  In formulating a management plan for the area, the Forest
Service explained its priorities in resolving conflicts among
competing uses. Preservation of significant cultural resources
ranked third on the list of goals, subordinate only to protec-
                  THE ACCESS FUND v. USDA                  10533
tion of Lake Tahoe’s water quality and protection of threat-
ened and endangered species. A specific management practice
addressed “Cultural Resources Management.” Establishment
of outdoor recreation facilities and uses fell much farther
down the list of priorities.

  The FEIS articulated a new preferred proposal intended “to
protect Cave Rock’s heritage resources”: banning all climbing
immediately; removing all climbing bolts as soon as techni-
cally feasible and legally authorized; and removing the
masonry flooring inside the rock. This option would permit
non-invasive recreation consistent with the historic period,
such as hiking, picnicking, stargazing, boating, and fishing.
This new alternative incorporated features from many of the
previously considered proposals and did not introduce any
new features.

   The Forest Service considered the impact of each of the
various alternatives on geology, heritage resources, land own-
ership, climbing, recreation, social practices, and wildlife.
None of the options would have significant effects on geol-
ogy, land ownership, or wildlife.

   The Forest Service found that the presence of rock climb-
ing hardware, the activities of traditional and free climbing,
and the presence of non-historic graffiti and the masonry floor
all represented adverse effects on the site’s heritage resources.
The agency also observed that “although objectionable to
many Washoe, casual hiking, fishing, and sightseeing are con-
sistent with the late historic period at Cave Rock associated
with [Henry] Rupert, and therefore do not effect [sic] the set-
ting and feel of the TCP [traditional cultural property] as an
evolved property.”

   The FEIS also noted that Cave Rock is a “core element in
the Washoe culture.” In connection with a discussion of social
practices and civil rights, the Forest Service emphasized that
“[t]he fact that traditional history and culture at Cave Rock
10534              THE ACCESS FUND v. USDA
are sometimes discussed in religious terms does not diminish
the site’s historical or cultural significance to the Washoe
people.” While recognizing climbers as an important social
group that values the rock, the evaluation explained that the
elimination of climbing should not be viewed as “requiring
others to conform their conduct to Indian cultural concerns”
— rather, the recommendation served the goal of protecting
environmental, historical and cultural resources.

   After issuing the FEIS, the Forest Service again sought
public comment, and over 1400 individuals responded. Subse-
quent to considering these comments, the Forest Service for-
mally adopted the preferred proposal at the final
environmental impact stage. A third Forest Supervisor, Mari-
beth Gustafson, emphasized that “[a]lthough [the Cave Rock
property] is spoken of in religious terms and is associated
with spiritual figures, it has significant cultural and historical
significance . . . . This significance is not based on ‘Washoe
religious doctrine’ but rather on the secularly-derived historic
and ethnographic record.” She further explained, “I have cho-
sen the historic period up to and including the life span of
Henry Rupert (1885-1965), the historic Washoe shaman, as
the time period for management of activities at Cave Rock.
Improvement and activities that are consistent with this time
period and do not adversely affect the integrity of Cave Rock
will be allowed to continue.” Following an administrative
appeal challenging the prohibition on rock climbing at Cave
Rock, the Forest Service’s decision was affirmed.

III.    PROCEEDINGS IN THE DISTRICT COURT

   The Access Fund then brought an action in federal district
court, naming the United States Department of Agriculture,
the Forest Service, and Ann M. Veneman, who was then the
Secretary of Agriculture, (collectively the “Forest Service”) as
defendants. The complaint asserted that the Forest Service’s
decision to ban rock climbing at Cave Rock (1) violated the
Establishment Clause and (2) was arbitrary and capricious
                  THE ACCESS FUND v. USDA                 10535
under the APA. On cross-motions for summary judgment, the
district court entered judgment in favor of the government.
Citing Lemon v. Kurtzman, 

(1971), the court
held that Forest Service’s actions did not violate the Estab-
lishment Clause. The district court also concluded that the
Forest Service’s decision to ban climbing was not arbitrary
and capricious.

                    STANDARD OF REVIEW

   On cross-motions for summary judgment, we review the
decision of the district court de novo, viewing the facts in the
light most favorable to the plaintiff. See Vernon v. City of Los
Angeles, 

, 1391 (9th Cir. 1994). We may set
aside agency action under the APA only if it was “arbitrary,
capricious, [or] an abuse of discretion.” 5 U.S.C. § 706(2)(A).

                           ANALYSIS

I.   ESTABLISHMENT CLAUSE CHALLENGE

   [1] The Access Fund’s primary contention on appeal is that
the Forest Service’s decision to ban climbing at Cave Rock
violated the Establishment Clause. The First Amendment of
the Constitution provides that “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof.” U.S. Const., amend. I. The Supreme Court
has counseled that “the Constitution [does not] require com-
plete separation of church and state; it affirmatively mandates
accommodation, not merely tolerance, of all religions, and
forbids hostility toward any.” Lynch v. Donnelly, 

, 673 (1984). That is, “the government may (and some-
times must) accommodate religious practices and . . . it may
do so without violating the Establishment Clause. Hobbie v.
Unemployment Appeals Comm’n of Fla., 

, 144-
45 (1987).

  The Lemon test remains the benchmark to gauge whether
a particular government activity violates the Establishment
10536              THE ACCESS FUND v. USDA
Clause. Community House, Inc. v. City of Boise, No. 05-
36195, ___ F.3d ___, 

, at *10-*11 (9th Cir.
June 8, 2007) (as amended). We recognize that the Lemon test
has hardly been sanctified by the Supreme Court. 

n.8; see, e.g., Van Orden v. Perry, 

, 685 (2005)
(questioning the continued vitality of Lemon and declining to
apply it); Santa Fe Indep. Sch. Dist. v. Doe, 

, 319
(2000) (Rehnquist, C.J., dissenting) (“Lemon has had a check-
ered career in the decisional law of this Court.”). Nonetheless,
the Court has invoked Lemon in recent opinions and surely
has never expressly overruled or discarded the test. See, e.g.,
McCreary County v. Am. Civil Liberties Union of Ky., 

, 859-64 (2005) (reaffirming use of purpose prong of
Lemon); Zelman v. Simmons-Harris, 

, 668-69
(2002) (O’Connor, J., concurring) (reaffirming that the Lemon
test is still the central tool of analysis in Establishment Clause
cases). Accordingly, we apply Lemon here.

   [2] Under Lemon, an action or policy violates the Establish-
ment Clause if (1) it has no secular purpose; (2) its principal
effect is to advance religion; or (3) it involves excessive
entanglement with 

. Some cases
have also characterized the establishment inquiry as answer-
ing the question of whether the government, through its
actions, impermissibly endorses religion. Agostini v. Felton,

, 235 (1997) (adopting endorsement formula-
tion); County of Allegheny v. Am. Civil Liberties Union,
Greater Pittsburgh Chapter, 

, 592-93 (1989)
(adopting endorsement and discussing it more generally).

   In recent years, the Supreme Court often has discussed the
last two Lemon criteria together, asking whether the chal-
lenged governmental practice has the effect of endorsing reli-
gion. Recent Ninth Circuit cases take different approaches to
the continuing vitality of the entanglement prong of Lemon,
but the Supreme Court has not discussed entanglement as dis-
tinct from effect in any meaningful way in the last ten years.
Compare Community House, 

, at *11 (“In
                  THE ACCESS FUND v. USDA                  10537
Agostini v. Felton, 

, 222-23 (1997), the Supreme
Court refined the Lemon test by folding the ‘excessive entan-
glement’ inquiry into, and setting out revised criteria for, the
‘effect’ prong.”), with Cholla Ready Mix, Inc. v. Civish, 

, 976-77 (9th Cir. 2004) (discussing entanglement as
a separate inquiry). Accordingly, we focus our discussion on
purpose and effect, with an eye to potential effects that might
result in government becoming impermissibly embroiled in
religious affairs.

  A.   SECULAR PURPOSE

   [3] The government easily satisfies the first prong of the
Lemon test, which asks whether the challenged government
action has a secular purpose or was taken for “the ostensible
and predominant purpose of advancing religion.” McCreary

. Here, the Forest Service acted pursu-
ant to a secular purpose — the preservation of a historic cul-
tural area.

   At every opportunity, the Forest Service reaffirmed its
desire to protect Cave Rock as a cultural, historical, and
archaeological monument. In 1996, more than ten years ago,
the Forest Service determined that Cave Rock was eligible for
inclusion in the National Register of Historical Places as a tra-
ditional cultural property. A traditional cultural property is “a
discretely defined property that [has an] association with cul-
tural practices or beliefs of a living community that: (1) [a]re
rooted in that community’s history; and (2) [a]re important in
maintaining the continuing cultural identity of the communi-
ty.” 43 C.F.R. § 423.2. The Forest Service simultaneously
observed that rock climbing adversely affects the National
Register eligibility of the site because the climbing hardware
undermines the physical integrity of the rock and the presence
of climbers and their paraphernalia impairs the communica-
tion of the property’s cultural significance.

  The Forest Service’s approach during its recent environ-
mental review also reflected these secular motivations. The
10538             THE ACCESS FUND v. USDA
Forest Service held community discussions with a wide vari-
ety of individuals and groups, including members of the
climbing community and the Washoe Tribe. The public
expressed significant interest, weighing in through more than
1400 letters, emails and phone calls during an informal com-
ment period. In evaluating the competing proposals, the FEIS
reviewed each proposal’s impact on geology, heritage
resources, land ownership, climbing, recreation, social prac-
tices, and wildlife in arriving at its final decision. While
acknowledging that Cave Rock “may be discussed in religious
terms and is associated with spiritual figures,” the Forest Ser-
vice emphasized that the rock “has significant cultural and
historical significance that make it eligible to the National
Register of Historic Places. Its significance is not based on
‘Washoe religious doctrine’ but rather on the secularly-
derived historic and ethnographic record.”

   [4] The Forest Service’s limitation on climbing served the
permissible secular goal of protecting cultural, historical and
archaeological features of Cave Rock. We discern no support
for the claim that the Forest Service’s decision was taken for
the predominant purpose of advancing the Washoe religion.
McCreary 

. And, we agree with the
Forest Service that the fact that Cave Rock also derives its
historical and cultural force in part from its role in Washoe
religious belief and practice does not counsel the conclusion
that the Forest Service acted with the purpose of advancing
religion.

   Historical and cultural considerations motivate the preser-
vation of national monuments that may have religious signifi-
cance to many or even most visitors. “Courts have long
recognized the historical, social and cultural significance of
religion in our lives and in the world, generally.” Bauchman
v. W. High Sch., 

, 554 (10th Cir. 1997). Indeed,
such secular motivations lie behind the government’s protec-
tion of many religious landmarks in this country, such as “the
National Cathedral in Washington, D.C.; the Touro Syna-
                  THE ACCESS FUND v. USDA                  10539
gogue, America’s oldest standing synagogue, dedicated in
1763; and numerous churches that played a pivotal role in the
Civil Rights Movement, including the Sixteenth Street Baptist
Church in Birmingham, Alabama.” See Cholla Ready 

.

   [5] To be sure, the record establishes the importance of
Cave Rock to the Washoe Tribe. But even if the ban on
climbing were enacted in part to mitigate interference with the
Washoe’s religious practices, this objective alone would not
give rise to a finding of an impermissible religious motiva-
tion. The fact that Cave Rock is a sacred site to the Washoe
does not diminish its importance as a national cultural
resource.

   This principle is best illustrated by our decision in Cholla
Ready Mix. Arizona officials refused to give Cholla Ready
Mix a permit allowing the company to sell materials mined at
Woodruff Butte to state construction projects because the
butte was an important cultural, historic, and religious site to
several Native American groups. 

Like Cave Rock,
Woodruff Butte was also eligible for placement in the
National Register. See 

an Establishment
Clause challenge, we held that the state had acted with a secu-
lar purpose even though it was partially motivated by the
desire not to interfere with Native American religious prac-
tices. See 

The same analysis applies to Cave
Rock.

   [6] Nor is there any reason to think that the Forest Service’s
secular purpose was a sham or pretext. Cf. McCreary 

. The Forest Service’s decision recounts the
thorough documentation of “an extensive array of historic,
cultural, archaeological and traditional values that are historic
rather than religious by nature.” Since 1996, the Forest Ser-
vice has consistently embraced the view that Cave Rock is a
historical and cultural landmark worth preserving, and that
climbing threatens the cultural and physical integrity of the
10540             THE ACCESS FUND v. USDA
site. Nothing in the record indicates impermissible religious
motivation.

  B.    EFFECT OF ADVANCING OR ENDORSING RELIGION

   The effect prong of Lemon “asks whether, irrespective of
the government’s actual purpose, the practice under review in
fact conveys a message of endorsement or disapproval.”

(O’Connor, J., concurring); see also

. The test also considers whether non-
adherents might view the challenged action as disapproval of
their religious choices. Cammack v. Waihee, 

,
777-78 (9th Cir. 1991). In addressing these issues, we often
look to “the character and purposes of the institutions that are
benefitted, the nature of the aid that the State provides, and
the resulting relationship between government and religious
authority.” 

(quoting 

) (discussing effect and entanglement together)
(internal quotations omitted).

   [7] As a practical matter, the climbing ban cannot be fairly
perceived as an endorsement of Washoe religious practices.
Indeed, during the public comment phase, the Washoe Tribe
favored an alternative that would have precluded all activities
inconsistent with traditional Washoe belief. This alternative
would have denied non-Washoe access to the traditional cul-
tural property and banned hiking and other recreational uses
at the rock.

   [8] The Forest Service’s chosen alternative not only pro-
vides for general public use and access well beyond members
of the Washoe Tribe, but also permits activities that are
incompatible with Washoe beliefs. When a government action
challenged under the Establishment Clause explicitly violates
some of the core tenets of the religion it allegedly favors, such
action will typically be considered permissible accommoda-
tion rather than impermissible endorsement. Cf. Navajo
Nation v. U.S. Forest Serv., 

, 1046 (9th Cir.
                  THE ACCESS FUND v. USDA                  10541
2007) (holding that where the government fell short of “abso-
lutely vindicat[ing]” a religious group’s interests, the govern-
ment’s action was a permissible accommodation).

   The Forest Service’s decision raises no specter that non-
Washoe could credibly view the action as preferring the
Washoe religion over other religious choices. The restriction
on climbing does not reflect that the Forest Service “favor[s]
tribal religion over other religions or that [the Forest Service]
would not protect sites of historical, cultural, and religious
importance to other groups” any more than Arizona’s restric-
tion on mining materials indicated favoritism in Cholla Ready
Mix. 

. Nor does anything in the record
suggest that the Forest Service disapproves of non-Washoe
religious practices, or that members of the Access Fund per-
ceive the government’s actions as “a disapproval of their reli-
gious choices.” 

(internal
quotations and citation omitted). Rather, the facts reflect only
that the Access Fund’s members, whatever their religious
beliefs, would prefer to continue climbing on the rock, and the
government’s policy prevents them from doing so.

   That a group of religious practitioners benefits in part from
the government’s policy does not establish endorsement. Sig-
nificantly, the ban does not involve the Forest Service in any
respect in Washoe religious practice. It does not require the
Forest Service to monitor religious practice nor does it require
the Forest Service to develop expertise on Washoe religious
worship or evaluate the merits of different religious practices
or beliefs.

   The Access Fund argues that the ban will lead to the inter-
twining of government and religion because the Forest Ser-
vice must adopt a “comprehensive, discriminating, and
continuing” practice of surveillance to ensure that the climb-
ing restrictions are obeyed. Regulatory or supervisory over-
sight of recreational activities, however, can hardly be cast as
government endorsement or entanglement with religion. This
10542              THE ACCESS FUND v. USDA
type of monitoring (for example, to ensure that visitors are
picnicking and hiking rather than climbing) is no different
than monitoring to ensure that visitors are not dumping trash
at the site. Routine administrative or compliance activities do
not constitute impermissible “interference of . . . secular
authorities in religious affairs.” See 

; see also Hernandez v. Comm’r, 

, 696-97
(1989) (“[R]outine regulatory interaction which involves no
inquiries into religious doctrine . . . and no detailed monitor-
ing and close administrative contact between secular and reli-
gious bodies, does not of itself violate the nonentanglement
command.”) (internal quotation marks and citations omitted).

   Finally, we are not persuaded by the Access Fund’s reli-
ance on two out-of-circuit district court opinions: Bear Lodge
Multiple Use Association v. Babbitt, 

(D.
Wyo. 1998), aff’d on other grounds by 

(10th
Cir. 1999) and National Arch and Bridge Society v. Alston,

(D. Utah 2002). In Bear Lodge, the
National Park Service asked individuals to refrain voluntarily
from climbing during a month-long religious festival. 2 F.
Supp. 2d at 1450. The court implied that a mandatory ban
might violate the Establishment Clause. 

That
case differs from this one in two significant respects — in
Bear Lodge, the only reason for the closure was to facilitate
current religious practice, and the Park Service specifically
recognized that climbing was a “legitimate recreational and
historic” use of the land. 

Here, the ban on climb-
ing seeks to preserve the historic and cultural value of the site,
and climbing has never been a legitimate historic use of the
land. To the contrary, the Forest Service noted that the con-
struction of the masonry floor and installation of climbing
hardware were done without permission.

  In National Arch and Bridge, the district court in Utah
upheld a Park Service plan that asked visitors to the Rainbow
Bridge National Monument to refrain voluntarily from walk-
ing under the bridge in deference to Native American reli-
                  THE ACCESS FUND v. USDA                 10543
gious 

. The court
concluded that the voluntary nature of the request was signifi-
cant, and noted that a mandatory ban might be treated differ-
ently. See 

But, as in Bear Lodge, the ban
advanced solely sacred rather than secular goals.

   [9] We conclude here, as we did in Cholla Ready Mix, that
“the Establishment Clause does not bar the government from
protecting an historically and culturally important site simply
because the site’s importance derives at least in part from its
sacredness to certain 

.

  II.   APA CHALLENGE

   [10] We are not persuaded by the Access Fund’s claim that
the Forest Service’s decision to discriminate between climb-
ers and other recreational groups was arbitrary and capricious
in violation of the APA. See 5 U.S.C. § 706(2)(A). Before
taking action, an “agency must examine the relevant data and
articulate a satisfactory explanation for its action including a
‘rational connection between the facts found and the choice
made.’ ” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto.
Ins. Co., 

, 43 (1983) (quoting Burlington Truck
Lines, Inc. v. United States, 

, 168 (1962)).

    [11] The Access Fund argues that because there is no sig-
nificant geological impact on Cave Rock from rock climbing,
it is inconsistent to conclude that climbing harms the physical
resource. The Access Fund’s argument misses the point. The
value of Cave Rock is not simply geological; it is also cultural
and historical. As documented in extensive research and con-
sultation with various community groups, rock climbing
harms the physical (not necessarily geological) integrity of the
rock. The Forest Service’s decision to ban climbing, adopted
after deliberate and thoughtful analysis and based on non-
arbitrary historical considerations, does not violate the
Administrative Procedure Act.

  AFFIRMED.
10544             THE ACCESS FUND v. USDA
WALLACE, Circuit Judge, concurring:

   I concur in the result, but write separately because I do not
believe that the Lemon test should be applied in analyzing the
claim under the Establishment Clause. As the majority points
out, recent Supreme Court cases have questioned the continu-
ing validity of the Lemon test. See, e.g., Van Orden v. Perry,

, 685-86 (2005) (declining to apply the Lemon
test); Santa Fe Indep. Sch. Dist. v. Doe, 

, 319
(2000) (Rehnquist, C.J., dissenting) (“Lemon has had a check-
ered career in the decisional law of this Court”); Hunt v.
McNair, 

, 741 (1973) (the Lemon factors serve
as “no more than helpful signposts”); Zelman v. Simmons-
Harris, 

(2002) (declining to apply the Lemon
test). I do not believe that the Lemon test is helpful under the
circumstances of this case, and would follow Van Orden
instead.

   In Van Orden, the Supreme Court addressed whether the
placement of a Ten Commandments monument on the Texas
State Capitol grounds violated the Establishment 

. The plurality opinion recognized “two faces” that
must be considered. 

“One face looks toward the
strong role played by religion and religious traditions through-
out our Nation’s history[,]” while the other “looks toward the
principle that governmental intervention in religious matters
can itself endanger religious freedom.” 

The plural-
ity opinion further expressed the view that the Establishment
Clause does not “bar[ ] any and all governmental preference
for religion over irreligion.” 

n.3. Instead, determin-
ing whether the monument violated the Establishment Clause
required an inquiry into both “the nature of the monument and
[ ] our Nation’s history.” 

  A majority in Van Orden recognized that the Ten Com-
mandments were religious, but found that no Establishment
Clause violation occurred. 

704
(Breyer, J., concurring). The plurality opinion observed that
                   THE ACCESS FUND v. USDA                  10545
while the Ten Commandments had religious significance,
they also had an undeniable historical meaning. 

The monument had a “dual significance, partaking of both
religion and government.” 

Further, the placement
of the monument on state capitol grounds was a more passive
use than the posting of the texts in public classrooms, a prac-
tice that the Supreme Court had previously held to have vio-
lated the First Amendment in Stone v. Graham, 

(1980). 

   Van Orden is distinct from this case in that it involved a
placement of a monument with religious text. Here, the gov-
ernment did not erect any monument or structure. Instead,
Access Fund contends that the government’s ban on rock
climbing violates the Establishment Clause. Despite this dif-
ference, I believe that the plurality’s analysis in Van Orden is
helpful in determining whether an Establishment Clause vio-
lation occurred.

   As discussed in the majority opinion, Cave Rock is a cul-
turally, historically, and archaeologically significant site. It is
a core element of the Washoe people’s culture and a sacred
site in the Washoe religion. It is important to the Washoe peo-
ple’s religious identity, and figures prominently in their reli-
gious beliefs. Cave Rock has secular significance as well. It
has been the subject of archaeological and ethnographic
studies, and has historical significance as a travel corridor.

   Access Fund argues that the climbing ban promotes the
Washoe religion. Even assuming that this is true, however,
merely “promoting a message consistent with a religious doc-
trine does not run afoul of the Establishment Clause.” 

Like the monument in Van Orden, the climbing ban has
“dual significance”: although it may promote the Washoe reli-
gion, it also protects a culturally, historically, and archaeolog-
ically significant site. There is “no constitutional requirement
which makes it necessary for government to be hostile to reli-
gion and throw its weight against efforts to widen the effec-
10546            THE ACCESS FUND v. USDA
tive scope of religious influence.” 

(citation and
quotations omitted). Under the circumstances, I would hold
that the climbing ban does not violate the Establishment
Clause of the First Amendment to the Constitution.