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18 ELR 20358 | Environmental Law Reporter | copyright © 1988 | All rights reserved United States v. 38 Golden Eagles or Eagle Parts No. 86-2792 (9th Cir. September 9, 1987)In an unpublished opinion, the court rules that the Bald and Golden Eagle Protection Act's (BGEPA's) permit system for the taking and transporting of eagle parts does not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's) 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 the 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 Counsel for Defendant Before: Wright, Farris, and Thompson, Circuit Judges. Memorandum[*] Adam Nordwall, an American Indian, challenges the Eagle Protection Act and its implementing regulations on the grounds that they violate his right to the free exercise of religion. The district court granted summary judgment in favor of the government. Background In reviewing a summary judgment motion we accept the facts as alleged and view them in the light most favorable to the non-moving party. McConnell v. Meba, 759 F.2d 1401, 1404 (9th Cir. 1985). Adam Nordwall is a member of the Red Lake Band of the Chippewa Indians. Within the tribe he holds the high religious position of "pipeholder." One of his duties as a pipeholder is to provide eagle feathers and other eagle parts to other Indians for religious uses. The pipeholder generally accepts traditional items such as beads and blankets in exchange for eagle parts. The exchange maintains "harmony" and "the balance of life" among Indians. In 1982 another Indian acting as a special agent for the Department of the Interior contacted Nordwall about obtaining eagle feathers for use in religious ceremonies. The agent told Nordwall that he was a traditional dancer, and needed the feathers to complete the dance bustle he was making. The agent also said that because he was an urban Indian, he could only give money in exchange for the feathers. On three occasions Nordwall provided eagle parts to the special agent in exchange for cash. Nordwall was arrested for possessing and offering for sale eagle parts, a violation of 16 U.S.C. § 668(a). The eagle parts he possessed were seized. At Nordwall's criminal trial the jury was unable to reach a verdict. The charges were then dismissed. The subject of this appeal is the separate civil proceeding for forfeiture of all of the eagle parts Nordwall possessed. Eagle parts are subject to forfeiture when they are "taken, possessed, sold, purchased, bartered, offered for sale, purchase, or barter . . . contrary to the provisions of this subchapter, or of any permit or regulation issued hereunder. . . ." 16 U.S.C. § 668b(b). A permit may be issued by the Director of the Fish and Wildlife Service for the taking, possession, and transportation of eagles and parts for "the religious purposes of Indian tribes." 16 U.S.C. § 668a. Bartering or other exchange of eagle parts is not permitted under any circumstances. It is undisputed that Nordwall never sought a permit. In the forfeiture proceeding Nordwall argued that the Eagle Protection Act, 16 U.S.C. §§ 668-669d, and the implementing regulations violate his First Amendment right to the free exercise of religion, the American Indian Religious Freedom Act, and the treaty rights of Red Lake Chippewa Indians. Following the recommendation of a magistrate, the district court granted summary judgment in favor of the government on Nordwall's free exercise claim. United States v. Thirty-Eight Golden Eagles, 649 F. Supp. 269, 272 (D. Nev. 1986). The court found no triable issues of material fact. It recognized the Act's substantial impact on Indian religious practices, but held that the governmental interference with Indian religious practices was justified by the government's compelling interest in protecting eagles. On appeal, Nordwall raises only the First Amendment and Religious Freedom Act claim. Standard of Review We review de novo the grant of summary judgment. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). Standing Nordwall challenges the facial validity of the regulations implementing a permit system by which Indians may take, possess, and transport eagle parts for religious purposes. He has also sought both here and in the district court to introduce evidence as to the manner in which the Fish and Wildlife Service administers the permit system. Although he has no firsthand knowledge of the workings of the permit system, he alleges that others have experienced confusing application procedures and long delays in receiving eagle parts from the federal repository, and that, on the rare occasions when feathers have been obtained from the repository, they have been moldy and unusable. The district court apparently ruled that Nordwall lacked standing to challenge specific requirements of the permit regulations on their face and the permit system as applied because he has never made application for a permit. See Thirty-Eight Golden Eagles, 649 F. Supp. at 272. The court considered only Nordwall's challenges to the statute itself. We agree with the district court that Nordwall has failed to establish standing to challenge the permit system in its practical operation. We find, however, that nothing prevents him from challenging the permit regulations on their face. There is no requirement that a person claiming that permit regulations violate the right of free exercise must first make an application for a permit. Because the challenge is to the regulations on their face, the issue is squarely presented without the claimant's having become entangled in the actual permit process. Poulos v. New Hampshire, 345 U.S. 395 (1953) is not to the contrary. Poulos applied for a license to hold a religious service in a city park, but his application was denied by city authorities. He went ahead with the service anyway and was convicted and fined for violating the city ordinance requiring a license. He then filed suit challenging the ordinance on its face and as applied to him. The Supreme Court found that the ordinance was valid, but that the city's denial of a license in Poulos' case was arbitrary and unlawful. The Court upheld his conviction, however, concluding that the proper remedy for wrongful denial of the license was by [18 ELR 20359] certiorari to review the unlawful action of the licensing officials, not by holding the service without a license and then defending on the grounds that denial of the license was arbitrary. 345 U.S. at 409. Standing was not an issue. The Court held only that the unlawful act of government officers in denying the license was no defense to a charge of violating the license requirement. The Court allowed Poulos' challenge to the ordinance on its face without comment. Similarly, in Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court allowed Cantwell's First Amendment challenge to a state statute forbidding the solicitation of money or valuables for any religious cause without a state-approved certificate. Cantwell had made no application for a certificate. He argued that the statute was invalid on its face because it left discretion in state officials to determine whether an applicant's alleged beliefs were a bona fide religion. The Court heard the claim without even addressing the issue of standing. Nordwall's challenge to the regulations in this case is identical to Cantwell's. Like Cantwell, Nordwell was not required to seek a permit in order to argue that the permit system on its face violates his right to free exercise of religion. Nordwall has standing to challenge both the statute and the implementing regulations as written. The Statute Nordwall first raises the issue of whether the statute's establishment of a permit system as the only means of obtaining eagle feathers infringes his free exercise rights. A statute challenged on First Amendment grounds must meet the test we set out in Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir. 1984). The court must weigh three factors: (1) the magnitude of the statute's impact on the exercise of the affected religious belief, (2) the importance of the state interest that the statute seeks to accomplish, and (3) the extent to which an exemption for religious purposes would prevent the achievement of the statute's objectives. Callahan, 736 F.2d at 1273; EEOC v. Fremont Christian School, 781 F.2d 1362, 1367 (9th Cir. 1986). In reviewing the grant of summary judgment we accept the parties' contention that the permit system for providing Indians with eagle parts burdens the free exercise of Indian religion, and that the state has a compelling interest in the preservation of eagles. The parties do not dispute these points. We focus on the third part of the Callahan test, which requires that the statute be the least restrictive means of furthering the compelling government interest. Callahan, 736 F.2d at 1272 ("It is usually said that the challenged regulation must be the least restrictive means of furthering a compelling state interest"); Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581, 585 [15 ELR 20682] (9th Cir. 1985). We consider whether a permit system for possessing, taking, and transporting eagle parts is the "least restrictive means" of protecting eagles. The district court ruled that a permit system was essential because "the cost of exempting all Indians from the regulatory procedures would be disastrous to the eagles in that their numbers could be severely reduced." Nordwall objects that not enough evidence was adduced on summary judgment for the court to make such a finding. We need not reach the issue. It is conceded that the protection of eagles is a compelling government interest, and a valid purpose of the Eagle Protection Act. Therefore the statute may restrict First Amendment freedoms to the extent necessary to effect its purpose. Section 668a provides that the Secretary of the Interior may authorize the taking of eagles by Indians for religious purposes when he has "determine[d] that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking . . . ." The statute thus provides for a balancing of interests, and allows the taking of eagles by permit when it is not inconsistent with eagle preservations. It restricts any free exercise right that Indians have in the taking, possession, and transportation of eagles only to the extent necessary to meet the statutory goal. We hold only that upon the record before us the statute as written represents the least restrictive means of furthering a compelling government interest in the preservation of eagles. Nordwall raises one more argument against the Eagle Protection Act. The permit system created in the statute allows for the taking, possession, and transportation of eagle parts, but does not allow for their exchange -- by barter, sale, or otherwise -- under any circumstances. Nordwall alleges that one of his important functions as a high religious official is the distribution of eagle parts to other Indians who need them for religious purposes. Distribution is accomplished by traditional exchange. We understand the religious interest of Nordwall and other Indians in the possession and exchange of eagle parts, but conclude that First Amendment freedoms must sometimes yield somewhat when they conflict with a compelling government interest. The establishment of a market in eagle parts that would likely result if exchange were sanctioned would completely undermine the Act. The Act allows the taking, possession, and transportation of eagle parts. It thus accommodates Indian religious practices as far as possible consistent with its purpose. Regulations Nordwall's challenge to the permit regulations is based on Cantwell v. Connecticut, supra. Nordwall contends that the regulations implementing the Act's permit system impermissibly grant the Director of the Fish and Wild Service discretion to determine the bona fides of an applicant's religious practices. The Supreme Court found such discretion impermissible in Connecticut's statute regulating solicitation for charitable causes. The statute at issue in Cantwell provided that no person could solicit on behalf of any "alleged religious, charitable or philanthropic cause" without the approval of the secretary of the state public welfare council. The statute provided that "[u]pon application of any person in behalf of such cause, the secretary shall determine whether such cause is a religious one or is a bona fide object of charity or philanthropy and conforms to reasonable standards of efficiency and integrity, and if he shall so find, shall approve the same and issue to the authority in charge a certificate to that effect." The statute's placement of discretion in a public official to determine which religious causes were legitimate and to grant public benefits on that basis offended the right of free exercise guaranteed by the First Amendment: [T]he Act requires an application to the secretary of the public welfare council of the State [who] is empowered to determine whether the cause is a religious one . . . . If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth. Cantwell, 310 U.S. at 305; cf. Poulos, 345 U.S. at 403 (upholding as facially valid a permit system based not on the evaluation of religious bona fides but on "a ministerial, police routine" for regulating the time and place of all meetings in public parks). We find that the regulations here are distinguishable in their essentials from the statute that was found to violate the First Amendment in Cantwell. The Director of the Fish and Wildlife Service does not issue permits for possessing eagle parts as a matter of course. He must get certain information from the applicant, including "certification from a duly authorized official of the religious group that the applicant is authorized to participate in [tribal religious] ceremonies." 50 C.F.R. § 22.22(a)(6). The Director then considers various criteria in determining whether or not to issue a permit. One of these criteria is "[w]hether the applicant is an Indian who is authorized to participate in bona fide religious ceremonies." 50 C.F.R. § 22.22(c)(6). Unlike the statute in Cantwell, which specifically authorized a determination of religious bona fides by the granting official, this statute places no discretion in the Director to consider the legitimacy of the applicant's religious beliefs. The Director is required under the regulations to consider only whether the applicant is authorized by a religious official to participate in ceremonies. The regulations give the Director authority to deny a permit when the applicant has not obtained authorization. They do not grant him authority to detemine whether the applicant's "cause is a religious one." Cantwell, 310 U.S. at 305.[1] We conclude that the permit regulations are not impermissible under the rule of Cantwell. The Religious Freedom Act Finally, Nordwall contends that the government violated the American Indian Religious Freedom Act by enacting the Eagle Protection Act and its implementing regulations without adequately consulting Indian leaders and considering Indian religious values.[2] The Religious Freedom Act, codified at 42 U.S.C. § 1996, requires federal agencies to "learn about, and to avoid unnecessary interference with, traditional Indian religious practices." Wilson v. Block, 708 F.2d 735, 746 [13 ELR 20861] (D.C. Cir. 1983). An agency must consider, but not necessarily defer to, Indian religious values. Wilson, 708 F.2d at 747. In this case it is clear that the Eagle Protection Act and the regulations considered the religious interest of Indians in eagle feathers and eagle parts. The Act makes a specific exception for that purpose, which is reflected in the regulations. The Act and the regulations defer to Indian religious interests limited only by the need to protect the eagle population. In satisfying the least restrictive means requirement of the First Amendment, the Act satisfies the requirements of the Religious Freedom Act. The Religious Freedom Act provides no more protection than American Indians already receive under the free exercise clause of the First Amendment. See Crowv. Gullett, 541 F. Supp. 785, 794 (D.S.W.D 1982), aff'd, 706 F.2d 856 (8th Cir. 1982), cert. denied, 464 U.S. 977 (1983). As the Senate Report stated, "[t]he clear intent of [the Act] is to insure for traditional native religions the same rights of free exercise enjoyed by more powerful religions. However, it is in no way intended to provide Indian religions with a more favorable status than other religions, only to insure that the U.S. Government treats them equally." S. Rep. No. 709, 95th Cong., 2d Sess. 6 (1978) (quoted in Wilson v. Block, 708 F.2d at 746). Conclusion Both the Eagle Protection Act and the implementing regulations as written withstand Nordwall's free exercise challenges, and separate challenges under the American Indian Religious Freedom Act. Nordwall has no standing to challenge the permit system for the taking, possession, and transportation of eagles, and we make no ruling on the issue. AFFIRMED. * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3. 1. In requiring authorization from an official of a bona fide religion, the regulations may implicate the establishment clause of the First Amendment. They may favor some religious organizations over others. Nordwall has not raised this issue, and may not have standing to raise it in any event. We do not consider it here. 2. The American Indian Religious Freedom Act provides: On or after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rights. 442 U.S.C. § 1996. 18 ELR 20358 | Environmental Law Reporter | copyright © 1988 | All rights reserved |