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United States v. 38 Golden Eagles or Eagle Parts

ELR Citation: 18 ELR 20358
Nos. No. 86-2792, 829 F.2d 41/(9th Cir., 09/09/1987)

In an unpublished opinion, the court rules that the Bald and Golden Eagle Protection Act's (BGEPA's) permit system for the taking and transporting of eagle parts does not violate the First Amendment's protection for the free exercise of religion. The United States instituted a forfeiture proceeding to recover eagle parts from Nordwall, a native American who holds a high religious position that requires him to provide eagle parts to other native Americans for religious purposes. The court first holds that although Nordwall lacks standing to challenge the Fish and Wildlife Service's (FWS') method of administering the permit system because he has never applied for a permit, he may nevertheless challenge the statute and regulations on their face. The court then rules that although the BGEPA impinges on the free exercise of native Americans' religion, the permit system under the Act is the least restrictive means for the government to advance its compelling interest in protecting eagles. The court also rules that the BGEPA's absolute restriction on the exchange of eagle parts is warranted because the establishment of a market in eagle parts would completely undermine the goals of the Act.

The court rules that the regulations under the BGEPA that implement the permit system do not violate the First Amendment by granting the Director of FWS discretion to determine the bona fides of an applicant's religious practices. Under the regulations, the Director only considers whether the applicant is authorized by a religious official to participate in ceremonies; the regulations do not specifically authorize a determination of the legitimacy of the religion. Finally, the court holds that the government did not violate the American Indian Religious Freedom Act (AIRFA) by enacting the BGEPA and promulgating its regulations without adequately consulting native American leaders and considering native American values. The AIRFA provides no more protection than native Americans already receive under the First Amendment; therefore, in satisfying the least restrictive means requirement of the free exercise clause, the BGEPA satisfies the requirements of the AIRFA.

Counsel for Plaintiff/Appellee
Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Counsel for Defendant
G. David Robertson
Law Offices of Lawrence Semenza
560 E. Plum Lane, Reno NV 89510
(702) 825-6066

Before: Wright, Farris, and Thompson, Circuit Judges.