Appeals court upholds Cave Rock climbing ban

The 9th Circuit Court of Appeals on Monday upheld the U.S. Forest Service-imposed ban on climbing Lake Tahoe's Cave Rock.

The rock formation between Glenbrook and Zephyr Cove has long been regarded as sacred by the Washoe Tribe. But its history also includes being part of the original settlers' road around the lake - first as a trestle around the rock and now in the form of two tunnels blasted through the rock as a route for Highway 50.

And since the late 1980s, recreational rock climbers have considered Cave Rock one of the nation's premier climbing sites.

The lawsuit by Boulder, Colo.-based The Access Fund, a nonprofit group dedicated to protecting recreational climbing areas, charged Forest Supervisor Maribeth Gustafson "abruptly and unexpectedly" banned climbing in November 2002. She made the ban permanent in 2004, citing both the historic and cultural value of the rock in the eyes of Washoe tribal members.

The Access Fund said the ban is unconstitutional because it gives a religious group exclusive control over public property.

The ban was upheld by the U.S. District Court but appealed to the 9th Circuit Court in San Francisco.

"We definitely, whole-heartedly agree with the 9th District Court of Appeals decision. The courts are getting it right for the protection of Washoe sites," said Waldo Walker, chairman of the Washoe Tribe of Nevada and California, during a phone interview on Monday.

"Many generations have respected that site and we're just ecstatic the court has given us the opportunity to express that."

Forest Service lawyers argued the climbing ban wasn't for religious purposes but in recognition of the rock's status as a cultural and historic site. The site has been declared eligible for the National Historic Register as a traditional cultural property and archaeological site.

The Access Fund responded that the tribe has always described Cave Rock as a sacred religious site and that the government can't now say it's a cultural property.

"Listing Cave Rock as a traditional cultural property does not change the fundamental nature of Cave Rock as a religious site," they argued in court briefs.

The appellate court opinion pointed out that, although many Washoes object to hiking, fishing and sightseeing at the rock as well as climbing, the Forest Service didn't ban those activities.

It says traditional members of the tribe wanted all people except Washoe practitioners "who have been called to seek power or knowledge at the rock" banned from the site.

"The Forest Service's chosen alternative not only provides for general public use and access well beyond members of the Washoe Tribe, but also permits activities that are incompatible with Washoe beliefs," the opinion says.

The opinion agrees with government lawyers that the rock has cultural, historical and archaeological features.

The opinion adds that the Forest Service also seeks to protect the pioneer historic interest in the rock as the site of and route for the historic roadway first around and later through the tunnels in the rock.

• Contact reporter Geoff Dornan at gdornan@nevadaappeal.com or 687-8750. Adam Jensen of the Tahoe Daily Tribune contributed to this story.