Freedom From Religion Foundation, Inc. v. Weber et al

Filing 106

AMENDED ORDER re 104 Order on Motion for Summary Judgment. Signed by Chief Judge Dana L. Christensen on 6/25/2013. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FREEDOM FROM RELIGION
FOUNDATION, INC., a Wisconsin nonprofit corporation,

CV 12–19–M–DLC

ORDER

Plaintiff,
vs.
CHIP WEBER, Flathead National Forest
Supervisor; UNITED STATES FOREST
SERVICE, An Agency of the United
States, Department of Agriculture,
Defendants,

and
WILLIAM GLIDDEN, RAYMOND
LEOPOLD, EUGENE THOMAS,
NORMAN DeFORREST, and the
KNIGHTS OF COLUMBUS
(KALISPELL COUNCIL 1328),
Intervenor-Defendants.

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IT IS ORDERED that the Court's Opinion dated June 24, 2013 (doc. 104) is
AMENDED such that Part V of the Opinion reads as follows:
V. CONCLUSION
Plaintiff has organizational standing based on the affidavit of Pamela Morris
because she would have standing to sue in her own right and was a member of
FFRF when the complaint was filed. Reaching the merits of the case, Lemon and
Van Orden both support Defendant’s reissuance of the permit because leasing
public land within a private ski resort to a private organization who maintains a
statue of Jesus does not violate the Establishment Clause. The statue does not
convey to a reasonable informed observer that the government, rather than a
private party, endorses Christianity over any other faith or the absence of faith.
No material factual disputes exist and summary judgment in favor of Defendants is
appropriate. Big Mountain Jesus has been in its current location for 60 years,
where it will remain because Defendant’s reissuance of the permit does not violate
the Establishment Clause.
Accordingly, IT IS ORDERED that Defendant’s motion for summary
judgment (doc. 60) is GRANTED.
IT IS FURTHER ORDERED that Intervenor-Defendant’s motion for
summary judgment (doc. 64) is DENIED as to standing and GRANTED as to
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reissuance of the permit. This case is dismissed and the Clerk of Court shall enter
judgment pursuant to Federal Rule of Civil Procedure 58.
The full amended Opinion is provided below.
I. INTRODUCTION
This action presents a constitutional challenge under the First Amendment’s
Establishment Clause to the renewal by the United States Forest Service (“USFS”)
of a Special Use Permit issued to the Knights of Columbus for maintenance of a
privately-owned statue of Jesus on federal land leased to the Whitefish Mountain
Resort (“Big Mountain”) in Whitefish, Montana. The original permit was issued
by the USFS in 1953, and the statue of Jesus (“Big Mountain Jesus”) was
constructed by the Knights of Columbus the following year. Until the subject
action was filed, Big Mountain Jesus and the associated Special Use Permit have
gone unchallenged for approximately 60 years.
Unquestionably, Big Mountain Jesus is a religious symbol commonly
associated with one form of religion. But not every religious symbol runs afoul of
the Establishment Clause of the United States Constitution. To some, Big
Mountain Jesus is offensive, and to others it represents only a religious symbol,
but the Court suspects that for most who happen to encounter Big Mountain Jesus,
it neither offends nor inspires.
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Although Big Mountain has undergone dramatic changes over the course of
the last six decades, evolving from a small, local ski area to a destination resort,
Big Mountain Jesus is one of the only vestiges that remains of the early days of
skiing at Big Mountain, and to many serves as a historical reminder of those
bygone days of sack lunches, ungroomed runs, rope tows, t-bars, leather ski boots,
and 210 cm. skis.
Before the Court are the federal Defendants and Defendant-Intervenors
motions for summary judgment, and an extensive factual record. As explained
below, the Court finds that the renewal of the Special Use Permit does not
constitute a government endorsement of a religious message and thus does not
violate the Establishment Clause. Therefore, summary judgment is granted in
favor of Defendants.
II. FACTS
The original Special Use Permit was issued to the Kalispell, Montana-based
Knights of Columbus Council No. 1328 on October 15, 1953. In the original
application filed by the Knights of Columbus, it stated that the intent was to “erect
a Statue of our Lord Jesus Christ” on a 6x6x6 foot base constructed of native stone
and cement “for the purpose of Erecting a Shrine overlooking the Big Mountain
Ski run.” In the same application, the Knights of Columbus also recommended
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that the statue “be made a permanent part of the recreation area on top of Big
Mountain.” At the time of the dedication of the statue on September 5, 1954, the
then chairman of the Knights of Columbus Shrine Committee, L.J. Reed, provided
a statement to the local weekly newspaper, the Whitefish Pilot, that the idea for the
statue “originated, to a great extent, during the two years the National Ski
Championships were held on Big Mountain” in 1949 and 1951. He went on to
state, again as reported in the Whitefish Pilot:
Several of the world’s leading skiers are Catholics and they asked
why a shrine had not been placed. They had been to leading ski runs
all over the world and the majority of them have a shrine of some sort
at the top of the run. The idea was passed on to me and I in turn
passed it on to the Knights of Columbus early in 1953 and a
committee was selected to go to the top of Big Mountain and look
over the possibilities for a site.
The Knights of Columbus is a Catholic religious organization, and it
appears from the record that some degree of divine inspiration determined the final
location of the statue. As L.J. Reed stated in the same article: “Our Lord himself
selected this site, as each member of the committee after looking over all other
possibilities returned to this site and were in complete accord that this was it.”
However, there also appears from the record that many believed that the
statue was erected in honor of veterans from the Army’s 10th Mountain Division,
as memorialized in a large plaque that was erected by Big Mountain in a location
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immediately adjacent to the statue in 2010:
When the troops started returning from WWII in Europe to their
home in the Flathead Valley they brought with them many memories
. . . some good, some bad. Some of these troops were members of the
Knights of Columbus at St. Matthew’s parish in Kalispell. A
common memory of their time in Italy and along the French and
Swiss border was of the many religious shrines and statues in the
mountain communities. This started a dialogue with the U.S. Forest
Service for leased land to place this statue of Jesus. On October 15,
1953 the U.S. Forest Service granted a permanent special use permit
to the K of C Council #1328 for a 25ft x 25ft square for placement of
the statue. A commission for the statue construction was given to the
St. Paul Statuary in St. Paul, Minnesota. The statue was installed in
1955 and has been maintained by the Knights of Columbus from St.
Matthew’s ever since. We thank those brave troops that brought this
special shrine of Christ to the Big Mountain and hope that you enjoy
and respect it.
-Whitefish Mountain Resort, 2010.
Many of those involved in the early history of Big Mountain and the statue
are long deceased. Thus, the precise motivation for the presence of the statue has
largely been lost in the passage of time, and it is conceivable that motivations
varied, depending on the person. However, the recollections of one person, Bill
Martin, are particularly helpful to the Court in determining this issue. In his
declaration, Mr. Martin states that he was once the manager of Big Mountain, that
he served on the board of directors for the ski area for fifty years, and was a close
friend of the founder of Big Mountain, Ed Schenk, who developed the ski area in
the late 1940s. (Doc. 66-8 at 2-3.) In the letter attached to his declaration, Mr.
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Martin states that he “distinctly remembers the situation regarding the erection of a
statue of Christ on Big Mountain.” (Doc. 66-8 at 5.) In this same letter, Mr.
Martin goes on to state:
Ed Shenk was an officer in the Army in WWII, and was stationed in
Italy with the 10th Mountain Division. He was an avid skier and
skied on many of the slopes in Italy. He remembered that almost all
of the slopes in Italy had statues of Christ on the slopes. More than
one on several slopes, and also other statues and crosses. When Ed
returned to Whitefish after the war, he bought some property on Big
Mountain where there was an existing ski area. He eventually
developed the Big Mountain ski area in the late 40s. He had such an
admiration of the Christ statues that he had observed on the slopes in
Italy during the war, that he wanted to install one on Big Mountain in
memory of the men who had lost their lives in WWII. Somehow he
contacted the local Knights of Columbus in Kalispell and asked if
they would participate in getting the statue installed. The existing
statue was installed in the mid 50's. I can remember that the statue
was installed in memory of the veterans who Ed had served in WWII,
and he wanted it dedicated to them. The Knights of Columbus were
the workhorses who installed it.
Id.
As approved by the USFS, the statue was constructed by the Knights of
Columbus on a plot of land that was 25x25 feet square. Big Mountain Jesus has
remained in this same location to the present. The base is approximately six feet
in height, and the statue itself is approximately six feet tall. In the winter months,
the base of the statue is largely obscured by snow. At the time of its construction,
Big Mountain Jesus was located approximately 400 feet beyond the upper
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terminus of the original T-Bar that served the area’s main ski runs at the time, and
70 feet higher in elevation. In other words, in order to view the statue during the
early days of Big Mountain, one would have to walk uphill from the top of the Tbar lift. In the winter of 1960, the first chairlift on Big Mountain was installed,
referred to as Chair One, which provided skier access to much higher and
challenging terrain in a different location on the mountain. With some effort,
intrepid skiers could find their way down into the location of Big Mountain Jesus.
In 1968, a second chairlift was constructed, known as Chair Two, which replaced
the original T-bar, with an upper terminal at a higher elevation above Big
Mountain Jesus, thereby allowing skiers to ski down in the vicinity of the statue,
although the runs serviced by Chair Two did not traverse in direct proximity to the
statue. Because of the fact that the statue was and remains largely obscured by
trees, one would have to ski out of their way and off the main runs in order to
directly encounter Big Mountain Jesus. In fact, unless one was specifically
looking for it, it is possible to ski at Big Mountain day after day and never
encounter the statue. And certainly, if one wished to ski at Big Mountain and
entirely avoid the statue, it is readily possible to do so without any diminishment
of the skiing experience.
When it was originally erected, Big Mountain Jesus was uniformly “light
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buff in color.” According to the record, sometime between 1981 and 1997, a son
of a Knights of Columbus member painted the statue as an Eagle Scout project. It
has periodically been re-painted since that time.
Although there are rare, reported instances of church services being
performed at the statue, religious services at Big Mountain are typically conducted
at other locations.
Big Mountain Jesus has been the subject of much frivolity over the years.
In addition to serving as a meeting place on the mountain for skiers, and a site for
weddings, it has not infrequently been observed adorned with ski poles, goggles,
ski hats, mardi gras beads, and other attire, all secular in nature. In fact, frequent
repairs have been made to the outstretched hands of Big Mountain Jesus which
have been dislodged by passing skiers and snowboarders who have given a “high
five” to the statue.
To the extent Big Mountain Jesus may have had some religious significance
at the time of its construction by the Knights of Columbus, and may have provided
from time to time spiritual inspiration or offense to some, over the course of the
last 60 years the statue has become more of an historical landmark and a curiosity.
As previously stated, the original Special Use Permit was issued for an
unspecified term by the USFS to the Knights of Columbus on October 15, 1953.
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The Special Use permit was renewed in 1990 and 2000 for ten-year terms. The
knights of Columbus sought renewal of the Special Use Permit in 2010, which was
originally denied by the USFS on August 24, 2011. On October 21, 2011, the
USFS withdrew its denial and issued a public notice soliciting public comment on
a formal proposal for reisssuance of the permit. In response to its solicitation for
comments, the USFS received approximately 95,000 comments from October 19
to December 8, 2011. On January 31, 2012, the USFS issued a new decision to
reauthorize the Special Use Permit for a term of ten years, stating in its Decision
Memo of the same date that the statue “has been a long standing object in the
community since 1953 and is important to the community for its historical
heritage.” In the Cultural Resource Summary prepared by the USFS in
conjunction with the reauthorization of the permit, it was noted that the statue’s
“primary historical value is its association with the early development of the Big
Mountain ski area, now Whitefish Mountain Resort. It is a contributing (and
minor) piece of the ski hill’s overall sociocultural, economic, and technological
history.”
Other than these actions, the USFS has not been involved in any respect in
the design, construction, or maintenance of Big Mountain Jesus.
In the early fall of 2011, the Montana State Historic Preservation Office
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initiated a process to determine whether the statue was eligible for listing on the
National Register of Historic Places. After conducting a Heritage Resource
Inventory Report, which was completed on December 15, 2011, the state historic
preservation office concluded that the statue was eligible for listing, finding that
the statue
has integrity of location, setting, materials, workmanship, feeling, and
association and is part of the early history of the ski area and would be
considered a contributing element of such a historic district. Individually, it
represents a small part of the history of the ski area but since so little
remains intact of that early history, the statue of Jesus has been determined
eligible for listing on the National Register of Historic Places under criteria
‘a’ - associated with events important to local history and criteria
consideration ‘f.’
The Plaintiff argues that the most recent reissuance of the permit, after first
being denied on First Amendment grounds, and the involvement of the Montana
State Historic Preservation Office, were the result of political pressure, largely due
to the efforts of then United States Congressman Dennis Rehberg, and thus the
entire process is suspect.
There is no question that political pressure was brought to bear, and
undoubtedly many of the thousands of letters of support for reissuance of the
permit were the result of this political lobbying effort. However, none of this
bears any significance to the legal analysis that follows.

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As will shortly be explained, the Court finds, as a matter of law, that the
discrete act of permitting the statue by the USFS does not reflect government
endorsement of any religious sect or a governmental preference for religion over
non-religion. The government neither owns the statue nor exercises control over
the property on which it is located. Big Mountain Jesus constitutes private speech
reflecting the personal views of its private owners and therefore cannot be seen by
the reasonable observer as reflecting government promotion of religion.
Stated another way, the statue does not convey any message that individuals
visiting Big Mountain whether in the summer or winter might be treated more
favorably or less favorably depending on their religious beliefs or affiliation.
In summary, the Court finds that the USFS renewed the Special Use Permit
because the statue is steeped in the origins and history of Big Mountain and the
surrounding community, which constitutes a legitimate secular purpose.
III. SUMMARY JUDGMENT STANDARD
A party is entitled to summary judgment if it can demonstrate “that there is
no genuine dispute as to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is warranted where
the documentary evidence produced by the parties permits only one conclusion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The party seeking
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summary judgment bears the initial burden of proving its motion, and identifying
those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Where the moving party has met his initial burden with a properly supported
motion, the party opposing the motion “may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S. at 248. In evaluating the
appropriateness of summary judgment the Court must first determine whether a
fact is material. If so, it must then determine whether there is a genuine issue for
the trier of fact, as determined by the documents submitted.
IV. LEGAL ANALYSIS
A. Standing
Intervenor-Defendants again challenge Plaintiff’s standing in this matter.
The Court previously ruled that Plaintiff Freedom From Religion Foundation
(“FFRF”) had standing based on the affidavit of FFRF member William Cox.
(Doc. 55.) Intervenor-Defendants contend discovery has revealed that Cox was
not a member of FFRF when the complaint was filed, negating FFRF’s standing.
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Plaintiffs respond that associational standing exists because FFRF members
Pamela Morris and Doug Bonham were members at the time the complaint was
filed. Plaintiffs also argue Cox’s interests have been in complete alignment with
FFRF’s since initiation of the case, so requiring him to file a new action would be
a needless waste of time and resources. FFRF has standing as an organization
based on the affidavit of member Pamela Morris who, unlike Cox, was a member
of FFRF when the complaint in this case was filed.
To have standing for injunctive relief under Article III a plaintiff must
demonstrate he is under threat of suffering concrete and particularized “injury in
fact; the threat must be actual and imminent, not conjectural or hypothetical; it
must be fairly traceable to the challenged action of the defendant; and it must be
likely that a favorable judicial decision will prevent or redress the injury.”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). An organization has
standing on behalf of its members when “its members would otherwise have
standing to sue in their own right, the interests at stake are germane to the
organization's purpose, and neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 181 (2000). “The evidence
relevant to the standing inquiry consists of ‘the facts as they existed at the time the
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plaintiff filed the complaint.’” D’lil v. Best Western Encina Lodge & Suites, 538
F.3d 1031, 1036 (9th Cir. 2008) (citing Skaff v. Meridien North America Beverly
Hills, 506 F.3d 832, 838 (9th Cir. 2007)).
The Ninth Circuit Court of Appeals has recently reviewed standing in
various Supreme Court Establishment Clause cases:
Standing was adequate for jurisdiction in Establishment Clause cases in the
Supreme Court in the following contexts: prayer at a football game, a crèche
in a county courthouse or public park, the Ten Commandments displayed on
the grounds of a state capitol or at a courthouse, a cross display at a national
park, school prayer, a moment of silence at school, Bible reading at public
school, and a religious invocation at a graduation. No one was made to
pray, or to pray in someone else's church, or to support someone else's
church, or limited in how they prayed on their own, or made to worship, or
prohibited from worshiping, in any of these cases. The Court treated
standing (and therefore the concreteness element of standing) as sufficient
in all of these cases, even though nothing was affected but the religious or
irreligious sentiments of the plaintiffs.
Catholic League for Religious and Civil Rights v. City and County of San
Francisco, 624 F.3d 1043, 1049-50 (9th Cir. 2010)(internal citations omitted).
Plaintiff has standing to sue because at least one of its members’ affidavits
satisfy the requirements for organizational standing. William Cox’s affidavit will
not be considered because he was not a member of FFRF when the complaint was
filed. Plaintiff presents no authority permitting the Court to consider the affidavit
of a member who joined the organization after the complaint was filed, and doing
so appears directly contrary to the requirement to consider standing from the “facts
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as they existed at the time the plaintiff filed the complaint.” Id.; see also
Environmental Protection Information Center v. Pacific Lumber Co., 469
F.Supp.2d 803, 816 (N.D.Cal. 2007). As in Pacific Lumber, this Court need not
decide whether to consider Cox’s individual standing once he became an FFRF
member because Plaintiff has at least one member who was a member at the time
of filing to support its standing.
1. Pamela Morris
Pamela Morris became an FFRF member on February 3, 2012, because of
her lifelong opposition to Big Mountain Jesus. Morris first encountered Big
Mountain Jesus in 1957 as a 15-year old ski team member. (Doc. 74 at 2-3.)
Although active in the Methodist Youth Fellowship, Morris found the statue
“startlingly out of place” and has avoided Big Mountain ever since. Morris states
that she would “enjoy skiing Big Mountain again if it were a welcome site for all
who love nature.” (Doc. 74 at 3.) Morris wrote a letter to the Forest Service in
November 2011 protesting Big Mountain Jesus as a religious icon inappropriately
placed on federal lands. Specifically, Morris indicates she has “made a conscious
effort to avoid Big Mountain because of the Jesus Statue, which I perceive as a
Christian icon on public land that has the effect of promoting one particular
religious sect.” (Doc. 74 at 4.)
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Defendants’ argument that Morris has suffered only a generalized grievance
and thus lacks standing under Caldwell v. Caldwell, 545 F.3d 1126 (9th Cir. 2008)
fails. The plaintiff in Caldwell was a parent of children in the California public
school system who objected to a University of California website’s discussion of
evolution. Id. at 1128. Caldwell used the website to participate in elections and
debates regarding science instructional materials and was offended by its
statement that evolution and religion can coexist. Id. at 1129. The Ninth Circuit
held that
Caldwell's asserted interest-informed participation as a citizen in school
board meetings, debates, and elections, especially with respect to selection
of instructional materials and how teachers teach the theory of evolution in
biology classes in the public schools-is not sufficiently differentiated and
direct to confer standing on her to challenge the University of California's
treatment of religious and anti-religious views on evolution.
Id. at 1133. Caldwell’s connection to the offending government conduct was too
remote to support standing. Id.
Unlike Caldwell, a plaintiff who avoided a section of the Mojave National
Preserve where a Latin cross sat atop a rock did have standing because his
“inhibition from freely using the Preserve sufficed as injury in fact and constituted
‘personal injury suffered ... as a consequence of the alleged constitutional error.’”
Id. at 1132 (citing Buono v. Norton, 371 F.3d 543, 547 (9th Cir. 2004)). Buono’s

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offense to the cross sprung from the fact that it was on federal property–not simply
because it was a cross–and he avoided the area surrounding the rock so long as it
remained standing. Id. Buono’s standing was further supported because the Ninth
Circuit has “repeatedly held that inability to unreservedly use public land suffices
as injury-in-fact.” Id.
Similarly, a county employee who was offended by the removal of a cross
from the county seal had standing despite his lack of affirmative avoidance of the
seal. Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007). The
employee was not forced to quit his job in protest of the anti-religious symbol in
order to have standing. Id.
Morris’ objection to Big Mountain Jesus is more like the plaintiff’s in
Buono than the plaintiff’s in Caldwell. Like Buono, Morris is offended by what
she considers a religious icon on federal property and intends to avoid the
offending area until Big Mountain Jesus is removed. Morris is an avid and
lifelong skier, but has avoided Big Mountain for over 50 years because of the
statue. Defendants argue this avoidance prohibits standing because she has not
been in frequent contact with the offending symbol. However, Buono similarly
avoided the offending area without forfeiting his right to bring suit pursuant to the
Establishment Clause. Morris’ choice to ski at mountains sans Jesus statues likens
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to Buono’s avoidance of the cross. Similarly, the plaintiff in Vasquez was not
forced to quit his job in order to have a sufficient injury in fact. Morris likewise is
not required to continue skiing at Big Mountain to continually be offended by Big
Mountain Jesus. The fact that Morris was offended enough by Big Mountain
Jesus to avoid the ski hill for fifty years despite her professed desire to ski there
otherwise is precisely the type of injury in fact required by Article III.
Unlike Caldwell, Morris’ objection is more than an abstract disagreement
with one page of an 840 page website. Caldwell failed to allege any specific harm
connected to direct exposure to unwelcome religious (or non-religious) material.
Here, Morris wrote the Forest Service in protest of its decision to keep Big
Mountain Jesus well before Plaintiff filed suit, and contacted Plaintiff for
assistance in fighting the decision. She asserts that she intends to ski at Big
Mountain again if the statue is removed. Morris’ affidavit is properly considered
under Federal Rule of Civil Procedure 56(e), and it supports the first requirement
of organizational standing because Morris would have standing to sue in her own
right.
2. Douglas Bonham
“The general rule applicable to federal court suits with multiple plaintiffs is
that once the court determines that one of the plaintiffs has standing, it need not
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decide the standing of the others.” Buono, 371 F.3d at 548 (citing Carey v.
Population Servs. Int'l, 431 U.S. 678, 682 (1977)). The Court in Buono did not
consider a second plaintiff’s standing because it found that Buono had standing.
This Court also finds it unnecessary to determine whether Bonham has standing
because it has already determined FFRF member Morris satisfies Plaintiff’s
standing requirement.
Regarding the second standing requirement, the parties do not dispute that
the interests at stake are germane to Plaintiff’s organizational interests. This Court
has already held that the third standing element is satisfied because participation
of individual members should not be required for the lawsuit, particularly because
only declaratory and injunctive relief is sought. (Doc. 55 at 8.) The additional
submissions filed with the summary judgment motions do not change that analysis.
Plaintiff therefore satisfies the elements of organizational standing in this case.
Intervenor-Defendant’s remaining standing arguments primarily apply to William
Cox, so they will not be addressed because he was not a member of FFRF when
the complaint was filed. Because standing has been established, the Court will
now address the merits of Plaintiff’s claims.
B. Establishment Clause Challenge
The First Amendment to the United States Constitution states that
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“Congress shall make no law respecting an establishment of religion.” U.S. Const.
amend. I. The Establishment Clause mandates government neutrality between
individual religions, as well as between religion and nonreligion. Trunk v. City of
San Diego, 629 F.3d 1099, 1106 (9th Cir. 2011). Traditionally, Establishment
Clause challenges were analyzed under the test established by Lemon v. Kurtzman,
403 U.S. 602 (1971). The “Lemon Test” requires that challenged government
conduct must (1) have a secular purpose; (2) have a primary effect that neither
advances nor inhibits religion; and (3) not foster excessive government
entanglement with religion. Id. at 612-13. The entanglement inquiry is often seen
as part of the effect inquiry, and this combined analysis also examines “whether
governmental aid results in government indoctrination [and] whether recipients of
the aid are defined by reference to religion.” Barnes-Wallace v. City of San Diego,
704 F.3d 1067, 1083 (9th Cir. 2012)1(citing Card v. City of Everett, 520 F.3d 1009,
1015 (9th Cir. 2008)). The government action is viewed from the perspective of a
reasonable, informed observer. Trunk, 629 F.3d at 1110.
The applicability of Lemon was called into question by Van Orden v. Perry,
545 U.S. 677 (2005). Van Orden involved a Ten Commandments monument on
1

The Court observes that Plaintiff’s response brief contains an entire
paragraph that is identical to a paragraph in Barnes-Wallace without a single
citation to that opinion. (See doc. 86 at 23-24; 704 F.3d at 1083.)
21

Texas state capital property. A plurality of the Court held the Lemon test was
“not useful in dealing with the sort of passive monument that Texas has erected on
its Capitol grounds.” Id. at 686. Instead, the Court’s analysis centered on the
nature of the monument and the nation’s history, recognizing that “[s]imply having
religious content or promoting a message consistent with a religious doctrine does
not run afoul of the Establishment Clause.” Id. Justice Breyer, in concurrence2,
noted the Court’s continuing criticism of the Lemon test, and found that in difficult
border-line cases there is “no test-related substitute for the exercise of legal
judgment.” Id. at 700. Justice Breyer emphasized the importance of how a
monument is used, its context, and its history in deciding the monument did not
violate the Establishment Clause. Id. The fact that the monument had stood
uncontested for two generations was a critical factor in that determination. Id. at
704. Van Orden thus established an exception to the Lemon test for longstanding
religious monuments with a historical or secular message or context.
The Ninth Circuit employed this exception in Card in holding that a Ten
Commandments monument on city grounds did not violate the Establishment
Clause. 520 F.3d 1009. The monument at issue in Card was very similar to that

2

Justice Breyer’s concurrence is recognized by the Ninth Circuit as the
controlling opinion in Van Orden. Trunk, 629 F.3d at 1107.
22

in Van Orden, and the Court again focused on the fact that few complaints were
raised during the monument’s 30 year presence on public land. Id. at 1021.
The presence of a religious symbol on public land does not automatically
equate to a constitutional violation. Trunk, 629 F.3d at 1102. Moreover,
“[s]ecular elements, coupled with the history and physical setting of a monument
or display, can–but do not always–transform sectarian symbols that otherwise
would convey a message of government endorsement of a particular religion.” Id.
at 1117. Trunk held that a war memorial with a 29-foot cross on federal land
violated the Establishment Clause under both the Lemon test and the factuallybased Van Orden analysis. Id. at 1107. The cross in Trunk conveyed a message of
government endorsement of religion because, although it was a war memorial, the
vast size of the cross, its preeminent symbolism of Christianity, its prominent
location in a historically anti-Semitic area of the city, and its dedication as an
emblem of faith all pointed toward a constitutional violation.
Considering all of these factors as they relate to Big Mountain Jesus, no
such constitutional violation exists under either the Lemon test or the Van Orden
analysis.
1. Lemon Test
Defendant USFS’ reissuance of the permit to the Knights of Columbus does
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not violate the Establishment Clause under Lemon. The permit does not reflect a
religious purpose by USFS, its primary effect neither advances nor inhibits
religion, and no excessive government entanglement exists because of its
reissuance.
The government’s renewal of the permit does not reflect a religious purpose
because, in essence, the renewal allows a private organization’s continued
maintenance of a privately owned statue on public land leased to a private ski
resort. The government’s action need only be motivated in part by a secular
purpose to be constitutional. Cholla Ready Mix v. Civish, 382 F.3d 969, 975 (9th
Cir. 2004). The USFS observed in its 2012 memo that the statue has been part of
the community since 1953 and reflects its historical heritage. (Doc. 61 at 20.)
This historical, secular purpose shows the government’s motivation was not
wholly religious and it thus passes muster under the first prong of the Lemon test.
The fact that the Knights of Columbus, a Catholic mens organization, own
and maintain the statue does not change the analysis. The Knights of Columbus’
purpose for erecting Big Mountain Jesus is separate and distinct from the
governmental purpose of reissuing the permit. The Knights’ religious beliefs and
reasons for erecting the statue are not juxtaposed onto the government. See
Barnes-Wallace, 704 F.3d at 1084, n. 15. Further, the plaque set at the base of the
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statue in 2010 says the statue was privately erected and maintained, leading a
reasonable informed observer to believe there is no governmental religious
purpose.
The permit does not violate step two of the Lemon test because its
reissuance does not reflect governmental endorsement of religion. Along with the
plaque’s pronouncement of private ownership, a reasonable observer would also
recognize that the statue is located on a privately owned ski hill–not at a county
courthouse, a federal reserve or some other property obviously governmental in
nature. Plaintiff does not allege, nor is there any evidence, of the USFS promoting
religion or religious ceremonies at the site. Although some private groups have
used the site for religious purposes on occasion, there is no connection to
government endorsement of religion. As in Barnes-Wallace, the government’s
leasing of land to a private organization whose activities include rare religious
activities here does not indicate government endorsement of religion.
The statue’s location also supports Defendant’s decision as compared to
monument locations in other Establishment Clause cases. The statue’s location
renders it less reflective of governmental religious endorsement than the
monument in Van Orden because it is secluded within a group of trees off the side
of a run at a private ski resort, rather than placed on the grounds of the state
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capitol. Unlike the cross in Trunk, Big Mountain Jesus is not visible from miles
away nor does it tower over a section of a town mired in a history of antiSemitism. Many of those who view Big Mountain Jesus are likely unaware of any
governmental connection at all. For these reasons, permitting continued presence
of the statute at Big Mountain does not reflect governmental endorsement of
religion.
Likewise, the statue’s private ownership and maintenance forego any
excessive entanglement with religion. Again comparing Defendant’s action to that
in Barnes-Wallace compels a finding of no excessive government entanglement
here. In Barnes-Wallace, the city of San Diego leased land to the Boy Scouts of
America who occasionally performed religious activities on the property. 704
F.3d at 1074. The Court took a broad view of the city’s leasing practices, and
determined the leases were “allocated on the basis of criteria that neither favor nor
disfavor religion.” Id. at 1084. The fact that the city was not involved in
managing the leased properties also weighed in favor of no government
entanglement. Id. The government here does not maintain the statue, and its only
involvement is reissuing the permit every 10 years. This limited involvement
cannot amount to excessive government entanglement under the Lemon test.
Analyzing all of the factors outlined in Lemon demonstrates that the permit
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allowing Big Mountain Jesus does not violate the Establishment Clause. The
more detailed factual inquiry set forth in Van Orden compels the same result.
2. Van Orden Analysis
Reissuance of the permit is also permissible under Van Orden because the
nature of Big Mountain Jesus, its context, and its history all support a secular use.
The fact that a statue of Jesus is an unmistakably Christian symbol is not enough
to violate the Establishment Clause. Van Orden, 545 U.S. at 690. All of the other
Van Orden factors support Defendant’s reissuance of the permit.
The statue’s secular and irreverent uses far outweigh the few religious uses
it has served. The statue is most frequently used as a meeting point for skiers or
hikers and a site for photo opportunities, rather than a solemn place for religious
reflection. Big Mountain Jesus is one of the last remaining remnants from the
original Big Mountain Ski Resort, and many individuals in the community value
its historic significance. For many, it reflects the evolution of the town of
Whitefish from a lumber town to a tourist attraction. This independent secular
value was recognized by the State Historic Preservation Officer in support of
allowing Big Mountain Jesus to remain.
Similarly, the context in which Big Mountain Jesus is set is not religious.
The statue sits next to a ski run and is not directly on any hiking trails used during
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the summer. Prior attempts at holding religious services at the statue failed due to
poor weather. None of the statue’s surroundings support a religious
message–there are no seats for observance of the statue or similar accommodations
for worshipers. Typical observers of the statue are more interested in giving it a
high five or adorning it in ski gear than sitting before it in prayer.
Finally, and perhaps most importantly, Big Mountain Jesus has stood
unchallenged for almost 60 years. This longevity demonstrates that “few
individuals, whatever their system of beliefs, are likely to have understood the
monument as amounting, in any significantly detrimental way, to a government
effort to favor a particular religious sect.” Van Orden, 545 U.S. at 702. The fact
that the monument in Van Orden stood for 40 years unchallenged was
determinative in that case. The statue’s 60 year life free of formal complaints also
tips the scales in this case. A careful factual analysis under the guidance provided
in Van Orden and subsequent Ninth Circuit opinions reveals no Establishment
Clause violation in this case.
V. CONCLUSION
Plaintiff has organizational standing based on the affidavit of Pamela Morris
because she would have standing to sue in her own right and was a member of
FFRF when the complaint was filed. Reaching the merits of the case, Lemon and
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Van Orden both support Defendant’s reissuance of the permit because leasing
public land within a private ski resort to a private organization who maintains a
statue of Jesus does not violate the Establishment Clause. The statue does not
convey to a reasonable informed observer that the government, rather than a
private party, endorses Christianity over any other faith or the absence of faith.
No material factual disputes exist and summary judgment in favor of Defendants is
appropriate. Big Mountain Jesus has been in its current location for 60 years,
where it will remain because Defendant’s reissuance of the permit does not violate
the Establishment Clause.
Accordingly, IT IS ORDERED that Defendant’s motion for summary
judgment (doc. 60) is GRANTED.
IT IS FURTHER ORDERED that Intervenor-Defendant’s motion for
summary judgment (doc. 64) is DENIED as to standing and GRANTED as to
reissuance of the permit. This case is dismissed and the Clerk of Court shall enter
judgment pursuant to Federal Rule of Civil Procedure 58.
DATED this 25th day of June, 2013.

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