Black Hawk v. Pennsylvania

• Decision Date: 25 September 2002
• Docket Number: No. 3:CV-99-2048.,3:CV-99-2048.
• Citation: 225 F.Supp.2d 465
• Parties: Dennis L. BLACK HAWK, Plaintiff, v. Commonwealth of PENNSYLVANIA, et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

225 F.Supp.2d 465

Dennis L. BLACK HAWK, Plaintiff, v. Commonwealth of PENNSYLVANIA, et al., Defendants.

No. 3:CV-99-2048.

United States District Court, M.D. Pennsylvania.

September 25, 2002.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM

VANASKIE, Chief Judge.

Plaintiff Dennis L. Black Hawk filed this civil rights action, alleging that his First Amendment right to free exercise of religion was violated when the Pennsylvania Game Commission refused to grant him an exemption to a permit fee requirement for the possession of two black bears. It is believed that the black bears are sacred and give spiritual strength to Black Hawk, a Native American considered to be a "holy man" who conducts spiritual ceremonies for other Native Americans on his property with the two black bears. Defendants are Vernon Ross, the Director of the Pennsylvania Game Commission, Thomas R. Littwin, Frederick Merluzzi, Barry Hambley, and David E. Overcash.¹ Currently pending are defendants' motion for summary judgment, and plaintiff's motion for partial summary judgment.

Because Frederick Merluzzi and Barry Hambley were not personally involved in the decision to deny Black Hawk a religious exemption, summary judgment shall be granted in favor of Merluzzi and Hambley as to all claims. Because the Pennsylvania Game Code contains individualized exemptions for secular purposes, but not religious ones, and defendants have not advanced a compelling reason to deny Black Hawk an exemption, summary judgment shall be granted to Black Hawk as to his claims for injunctive relief. Because Black Hawk's right to a religious exemption was not "clearly established" so that a reasonable person would know that denial of the exemption would violate the First Amendment Free Exercise clause, summary judgment is granted as to defendants' claim of qualified immunity from damages.

I. BACKGROUND

Dennis Black Hawk is a Native American of Lenape descent. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶ 1.)² He has been adopted by elders of the Pine Ridge Oglala Lakota tribe, from whom he learned traditional spiritual beliefs, and by a family of the Seneca tribe, who taught him the spiritual beliefs of the Haudenosaunee or Iroquois Nations. (Id. at ¶¶ 6-8.) While on the Pine Ridge reservation in South Dakota, Black Hawk was "put on a path" to follow the "holy ways" and he is now considered a holy man by other Native Americans, able to communicate with Native American ancestors. (Id. at ¶¶ 15, 17-18.) He experienced recurring dreams about bears. The elders advised Black Hawk that this was a vision and that the people's spirituality would be lifted by the bears. (Id. at ¶ 22.) Therefore, Black Hawk acquired two black bears, Timber and Tundra, in 1994. These bears were blessed by the elders of the Lakota tribe and the Iroquois confederacies as spiritual helpers to Black Hawk and other Native Americans. (Id. at ¶¶ 23-25.)

In 1995, Black Hawk moved to Pennsylvania. He purchased 3.11 acres in Weatherly, Carbon County, Pennsylvania. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶¶ 1, 4.) Black Hawk's property contains a tipi that is used for prayer, an anipi lodge to cleanse the spirit, and a ceremonial burial ground. (Id. at ¶ 17; Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 9-11, 13.) Black Hawk conducts spiritual ceremonies on his property and Native Americans from across the country travel to Weatherly to participate in these ceremonies. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 14-15; Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 17.) The bears are an integral part of these ceremonies. Black Hawk and his fellow Native Americans believe that black bears are sacred because they protect the land and give spiritual strength in religious ceremonies when physically present. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 19-21; Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 18.) To this end, participants in these ceremonies interact with the bears and the hair shed by the bears is used in Native American medicine bags. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 28-29.) Because Black Hawk's bears were found to be spiritual helpers, removal of the bears would be akin to taking the sacraments from a church. (Id. at ¶ 31.)

In Pennsylvania, the Pennsylvania Game Code, 34 Pa.C.S. §§ 2901-2965, governs the possession of black bears and other wildlife. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 23.) The Code includes certain substantive requirements that must be met for the Pennsylvania Game Commission ("Commission") to issue a wildlife ownership permit. For example, the Commission required Black Hawk to build a cage of specific dimensions for the bears. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶ 49.) Black Hawk complied with all the Commission's standards and was issued a permit between 1995 and 1999. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 33.)

A disagreement arose, however, regarding the annual permit fee of $200. The Commission collects fees for the permits it issues under the Code. The money collected from these fees is used by the Commission in administering and enforcing its regulations relating to activities which are governed by special permits, such as inspecting the facilities of owners of wild animals to insure that they comply with Commission regulations. (Id. at ¶¶ 31-32.) The fees themselves make up less than one percent of the Commission's revenues, which were projected to be $61.1 million for the 1999-2000 fiscal year, and the Commission issued over 30,000 permits in 2000. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 56-58.)

There are statutory exemptions from the fee requirement. The Commission may waive a permit fee for hardship or extraordinary circumstances if consistent with sound game or wildlife management activities or the intent of the Game Code. 34 Pa.C.S. § 2901(d). Excluded from the permit fee by statute are public zoological gardens that receive government grants or appropriations, private zoological parks or gardens that are open to the public and that are accredited by the American Association of Zoological Parks, and nationally recognized circuses. 34 Pa.C.S. § 2965(a)(1)-(3). The Commission also does not charge a fee for educational exhibits of wildlife. (Pl.Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 39-45.)

When Black Hawk moved to Pennsylvania in 1995, he paid $50 for a "menagerie" permit. In 1997, Black Hawk was required to obtain an exotic wildlife dealer's permit because Fred Merluzzi, the wildlife conservation officer for the area, believed that Black Hawk intended to breed the bears and sell their cubs. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 34-35.) Black Hawk had difficulty paying the fee, and was allowed to pay in two installments of $100. (Id. at ¶ 35.) Afterwards, Black Hawk requested an exemption from payment of the permit fee on the ground that he possessed the bears for Native American religious purposes. (Pl.Stat. of Material Facts, Dkt. Entry 53, at ¶ 35.) Specifically, he asked Merluzzi about his entitlement to an exemption based on his status as a Native American. Merluzzi made an inquiry with the Bureau of Indian Affairs and was told that Native Americans who possess a B.I.A. identity card are entitled to certain exemptions under some federal statutes. Black Hawk does not possess such a card. Merluzzi informed Black Hawk of what he was told by the B.I.A. and did not forward Black Hawk's request to Harrisburg to be reviewed by the Commission's central office. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 36.) Black Hawk was also warned that if he did not pay the fee he could be prosecuted and the bears could be confiscated by the Game Commission. (Id.)

In 1998, Black Hawk informed Merluzzi that he was keeping the bears for religious purposes and that he was having financial difficulty paying the $200 permit renewal fee. Merluzzi told Black Hawk that Black Hawk would have to contact the Commission's central office in Harrisburg regarding his entitlement to an exemption from the permit fee requirement. Black Hawk again paid the permit fee. (Id. at ¶ 37.) In 1999, Black Hawk again told Merluzzi that he did not believe that he should have to pay the fee because of his Native American beliefs and because the fee would cause Black Hawk financial hardship. In August, Black Hawk wrote a letter to his state representative, Keith McCall, concerning this belief. This letter was forwarded to Vernon Ross, Executive Director of the Game Commission. (Id. at ¶¶ 38-39; Exhibit 6 to Def. Motion for Summary Judgment, Dkt. Entry 51.) In addition, other Native Americans sent letters and electronic correspondence on Black Hawk's behalf to Ross and Thomas Littwin, Bureau of Law Enforcement. (Overcash Deposition, Exhibits 12-13; Dkt. Entry 52; Pl. Statement of Material Facts, Dkt. Entry 58, at ¶ 36.) Ross requested that Littwin respond to Black Hawk's request for an exemption. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶ 91.)

Dave Overcash, the Director of the Commission's Technical Services Division, reviewed Black Hawk's application for a waiver and discussed the application with his supervisor, Littwin. (Id. at ¶¶ 85-86, 90, 98-99.) Black Hawk received a letter dated October 6, 1999, written by Overcash and signed by Littwin, informing Black Hawk that there was no exemption from the permit fee requirement for Native Americans. The letter informed Black Hawk that § 2901(d) of the Code provides for a waiver of the permit fee based on hardship when consistent with game or wildlife management activities.³ The letter stated that Black Hawk would not qualify for this waiver. (Def.Stat. of Material Facts, Dkt. Entry 53, at ¶ 40.) The Commission considers the keeping of live animals in captivity as being inconsistent with sound game and wildlife management, or the overall purpose of the Game Code. (Id. at ¶ 42.) The only exception is where an animal is kept in captivity...