Oklevueha Native American Church of Hawaii, Inc. v. Holder

Decision Date09 April 2012
Docket NumberNo. 10–17687.,10–17687.
Citation12 Cal. Daily Op. Serv. 3825,2012 Daily Journal D.A.R. 4451,676 F.3d 829
PartiesOKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.; Michael Rex Mooney, aka Raging Bear, Plaintiffs–Appellants, v. Eric H. HOLDER, Jr., Attorney General; Michele Leonhart, as Acting Administrator of the U.S. Drug Enforcement Administration; Florence T. Nakakuni, U.S. Attorney for the District of Hawaii, Defendants–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit


Michael Andrew Glenn, Low Cost Legal Services, Honolulu, HI, for the appellants.

James C. Luh, Lowell V. Sturgill, Jr., and Mark Stern, Department of Justice, Washington, DC, and Derrick K. Watson, Office of the United States Attorney, Honolulu, HI, for the appellees.Appeal from the United States District Court for the District of Hawaii, Susan Oki Mollway, Chief District Judge, Presiding. D.C. No. 1:09–cv–00336–SOM–BMK.Before: ALFRED T. GOODWIN, STEPHEN S. TROTT, and MARY H. MURGUIA, Circuit Judges.


MURGUIA, Circuit Judge:

Plaintiffs Oklevueha Native American Church of Hawaii, Inc. (Oklevueha) and Michael Rex Mooney a.k.a. Raging Bear appeal the district court's dismissal of their complaint and judgment in favor of Defendants the U.S. Attorney General, the Administrator of the U.S. Drug Enforcement Administration (“DEA”), and the U.S. Attorney for the District of Hawaii (collectively, Government). Plaintiffs' action seeks declaratory and injunctive relief barring the Government from enforcing the Controlled Substances Act (“CSA”) against them and for return or compensation for marijuana taken by the Government. Plaintiffs allege that they consume marijuana as a “sacrament/eucharist” in their religious ceremonies, and that their use is protected by the First Amendment and the Religious Freedom Restoration Act (RFRA). The district court dismissed the claims for declaratory and injunctive relief on ripeness grounds. It also dismissed the claim for the return of, or compensation for, the seized marijuana because the marijuana had been destroyed and monetary damages are not available under RFRA. We affirm in part and reverse and remand in part.

I. Factual and Procedural Background

Plaintiff Oklevueha Native American Church of Hawaii, Inc. is a 250–member independent chapter of the Native American Church (NAC). NAC has an estimated 500,000 national members in 100 branches throughout 24 states. Plaintiff Michael Rex “Raging Bear” Mooney is the founder, president, and medicine custodian of the Oklevueha chapter. He is of Seminole Native American ancestry, and is an “authorized Spiritual Leader,” or “medicine man.”

According to Plaintiffs, NAC is an earth-based healing religion, the primary purpose of which is to “administer Sacramental Ceremonies.” These ceremonies involve the consumption of drugs; indeed, Plaintiffs explain that the church “only exists to espouse the virtues of, and to consume, entheogens.” NAC members' religious use of peyote is exempted from the prohibitions of the CSA, see 21 C.F.R. § 1307.31,1 but there is no such exemption for marijuana. Plaintiffs explain that marijuana use is a crucial part of NAC tradition and that members consume marijuana as a sacrament and eucharist in their religious ceremonies and rites, in addition to or as a substitute for peyote, which is their “primary sacrament/great-medicine of choice.” All 250 Oklevueha members consume marijuana in religious ceremonies. Members use marijuana to enhance spiritual awareness and facilitate direct experience of the divine. Mooney uses marijuana daily, and other Oklevueha members use marijuana in “sweat” ceremonies, which occur twice a month at various private locations in Oahu and are only open to NAC members.

In June 2009, federal law enforcement officers in Hawaii seized from FedEx one pound of marijuana that was addressed to Mooney and intended for Oklevueha use. The marijuana was turned over to the Honolulu Police Department and later destroyed. The seized marijuana was worth approximately $7,000. Plaintiffs do not allege that Mooney or any Oklevueha member has been prosecuted or threatened with prosecution in connection with the seizure or in relation to any other procurement or use of marijuana.

Despite the nonexistence of any criminal charges, Plaintiffs claim that they fear for their ability to continue to cultivate, consume, possess, and distribute marijuana for religious purposes without being branded criminals and made to face fines and imprisonment. In support of this fear, they point to a DEA raid in March 2010 on another Hawaii-based church that purports to use marijuana as a religious sacrament.

Plaintiffs assert seven claims: (1) violation of RFRA, 42 U.S.C. §§ 2000bb–2000bb–4; (2) violation of the American Indian Religious Freedom Act, 42 U.S.C. § 1996; (3) violation of the right to equal protection under the Fifth and Fourteenth Amendments; (4) violation of the First Amendment right to freedom of religion; (5) theft and/or conversion of one pound of marijuana; (6) declaratory judgment that the Government's seizure of the marijuana was unlawful and that the CSA may not be enforced against their possession, cultivation, provision, and distribution of marijuana for personal religious use; and (7) injunctive relief ordering the return of the seized marijuana, or its monetary value, and prohibiting the Government from arresting or prosecuting Oklevueha members for marijuana use or seizing their marijuana.

The district court granted in part and denied in part the Government's first motion to dismiss Oklevueha's First Amended Complaint. It dismissed the claims for declaratory and injunctive relief related to future use of marijuana (“the preenforcement claims”) and the tort claims, but not the claim for return of, or compensation for, the seized marijuana under RFRA. The court dismissed the preenforcement claims on ripeness grounds, concluding that Plaintiffs' claims did not satisfy the constitutional ripeness test for preenforcement challenges and that even if they did, prudential considerations also warranted dismissal. The court further held that Oklevueha lacked associational standing to assert the claims for prospective relief. Plaintiffs' claims for theft and conversion of the marijuana were also dismissed because they are barred by sovereign immunity. Then in a subsequent order, the district court dismissed Plaintiffs' remaining claims related to the seizure of the marijuana. With respect to Plaintiffs' request for compensation, the court explained that it could not order the Government to return something it does not have, and that it could not award money damages because RFRA does not unambiguously waive sovereign immunity to authorize money damages.

II. Discussion

We review the district court's grant of a motion to dismiss de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). We accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to Plaintiffs. Id. However, conclusory allegations and unwarranted inferences are insufficient to defeat a motion to dismiss. Johnson v. Lucent Techs. Inc., 653 F.3d 1000, 1010 (9th Cir.2011).

A. The Preenforcement Claims

Plaintiffs challenge the district court's determination that their claims for prospective relief are not ripe. The Constitution limits Article III federal courts' jurisdiction to deciding cases and “controversies.” U.S. Const. art. III, § 2. Ripeness is one component of the Article III case or controversy requirement. The “basic rationale” of the ripeness requirement is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). “The ripeness inquiry contains both a constitutional and a prudential component.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 902 (9th Cir.1993). We consider each in turn.

1. Constitutional Ripeness

The Constitution mandates that prior to our exercise of jurisdiction there exist a constitutional ‘case or controversy,’ that the issues presented are ‘definite and concrete, not hypothetical or abstract.’ Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1139 (9th Cir.2000) (en banc) (quoting Ry. Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 89 L.Ed. 2072 (1945)). However, arrest is not necessarily a prerequisite for an individual to challenge the applicability of a criminal statute.

When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.

Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (internal quotation marks omitted).

To bring such a “preenforcement claim,” we require plaintiffs to allege a “genuine threat of imminent prosecution.” Thomas, 220 F.3d at 1139 (internal quotation marks omitted). We consider: (1) whether the plaintiffs have articulated a “concrete plan” to violate the law in question; (2) whether the government has communicated a specific warning or threat to initiate proceedings; and (3) the history of past prosecution or enforcement under the statute. Id.

In reviewing these factors, we find that they do not apply easily to the unique circumstances of Plaintiffs' claims. The “genuine threat” analysis presumes that no enforcement has previously occurred, and therefore ascertains the likelihood of future enforcement. In contrast, the FedEx seizure was an enforcement of the CSA against Plaintiffs, mitigating the relevance of a hypothetical future-enforcement. Nonetheless, because Plaintiffs' claims are asserted for the first time in an action for...

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