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Freedom From Religion Found., Inc. v. Weber

United States District Court, D. Montana

June 25, 2013

FREEDOM FROM RELIGION FOUNDATION, INC., a Wisconsin non-profit corporation, Plaintiff,
v.
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

Page 1124

For Freedom From Religion Foundation, Inc., a Wisconsin non-profit corporation, Plaintiff: Martin S. King, Reid Perkins, LEAD ATTORNEYS, WORDEN THANE, Missoula, MT; Richard L. Bolton, LEAD ATTORNEY, PRO HAC VICE, BOARDMAN & CLARK, LLP, Madison, WI.

For Chip Weber, Flathead National Forest Supervisor, United States Forest Service, an Agency of the United States Department of Agriculture, Defendants: David B. Glazer, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, San Francisco, CA; Kenneth D. Rooney, U.S. DEPARTMENT OF JUSTICE - E.N.R.D. GENERAL LITIGATION, Washington, DC; Marissa Ann Piropato, Department of Justice, Washington, DC; Mark Steger Smith, OFFICE OF THE U.S. ATTORNEY, Billings, MT.

For William R. Glidden, Raymond Leopold, Eugene Thomas, Norman DeForrest, Knights of Columbus, Intervenor Defendants: Charles A. Harball, LEAD ATTORNEY, CITY OF KALISPELL, Kalispell, MT; Eric S. Baxter, Eric Rassbach, LEAD ATTORNEYS, PRO HAC VICE, THE BECKET FUND FOR RELIGIOUS LIBERTY, Washington, DC.

For Members of the United States Congress, The American Center for Law and Justice, Amici: Richard M. Baskett, LEAD ATTORNEY, BASKETT LAW OFFICE, Missoula, MT.

Page 1125

ORDER

Dana L. Christensen, Chief United States District Judge.

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 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.

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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.

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 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 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

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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. 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 terminus of the ...


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