Tribe v. Ashe

Decision Date12 March 2015
Docket NumberCase No. 2:11–CV–00347–ABJ.
Citation92 F.Supp.3d 1160
PartiesNorthern Arapaho TRIBE, on its own behalf and on behalf of its members, and Darrel O'Neal, Sr., Chairman, Northern Arapaho Business Council, in his official and individual capacities, Plaintiffs, v. Daniel M. ASHE, Director, United States Fish and Wildlife Service, and Matt Hogan, Assistant Regional Director, Region 6, Migratory Birds and State Programs, in their official capacities, Defendants.
CourtU.S. District Court — District of Wyoming

Terri V. Smith, Andrew W. Baldwin, Baldwin Crocker & Rudd, Lander, WY, for Plaintiffs.

Barbara M.R. Marvin, Department of Justice, Washington, DC, Carter Healy Coby Howell, Department of Justice, Portland, OR, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, Kimberly D. Varilek, Eastern Shoshone Tribe, Fort Washakie, WY, for Defendants.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON REMAINING CLAIMS AND OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' CROSS–MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' REMAINING CLAIMS

ALAN B. JOHNSON, District Judge.

Plaintiffs' Motion for Summary Judgment on Remaining Claims (Doc. No. 78), the Eastern Shoshone Tribe's Second Supplement to Eastern Shoshone Tribe Amicus Curiae Brief (Doc. No. 85), Respondents' Cross–Motion for Summary Judgment on Plaintiffs' Remaining Claims (Doc. No. 86), Plaintiffs' Opposition to Motion to Strike (Doc. No. 89), and Plaintiffs' Reply Brief (Doc. No. 90) have come before the Court for consideration. After reviewing the parties' submissions, the applicable law, and being fully advised, the Court finds that Plaintiffs' Motion for Summary Judgment on Remaining Claims should be GRANTED IN PART and DENIED IN PART and Defendants' Cross–Motion for Summary Judgment on Plaintiffs' Remaining Claims should be GRANTED IN PART and DENIED IN PART for the reasons stated below.

The Northern Arapaho Tribe (NAT) and the Chairman of the Northern Arapaho Business Council,1 Plaintiffs, filed an application for a permit with the U.S. Fish and Wildlife Service (“USFWS” or “Service”), Defendants, to take bald eagles within the Wind River Reservation, pursuant to the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. § 668 –668(d). While processing Plaintiffs' permit application, Defendants learned that the Eastern Shoshone Tribe (“EST”) objected to the Northern Arapaho Tribe taking eagles within the Wind River Reservation based on cultural and religious grounds. Ultimately, Defendants decided to issue Plaintiffs a permit to take two bald eagles within Wyoming but outside of the Wind River Reservation because doing so “would allow the NAT to take a live eagle for religious purposes in a manner that would avoid ... burdening the religious and cultural beliefs and practices of the EST.” R. at 533.

In the present motion, Plaintiffs challenged Defendants' decision in the informal adjudication of their permit application under the Administrative Procedure Act (“APA”) and the Free Exercise Clause of the First Amendment to the United States Constitution. The Court finds that Defendants' decision was not arbitrary or capricious under the APA. However, the Court finds that Defendants' decision violated the Free Exercise Clause of the First Amendment.

BACKGROUND

The Wind River Reservation2 was created in 1868 when the Eastern Shoshone Tribe and the United States of America entered into a treaty whereby the Eastern Shoshone Tribe “relinquished to the United States a reservation ... in Colorado, Utah, Idaho, and Wyoming, and accepted in exchange a reservation ... in Wyoming.” Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States, 299 U.S. 476, 485, 57 S.Ct. 244, 81 L.Ed. 360 (1937). Ten years later the United States placed the Northern Arapaho Tribe on the Wind River Reservation. Id. at 487, 57 S.Ct. 244. As the Tenth Circuit Court of Appeals has noted, “The Northern Arapaho share the Wind River reservation with the Shoshone tribe, a relationship that has not always been amicable.” United States v. Friday, 525 F.3d 938, 943 (10th Cir.2008).

In 2005, Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, shot a bald eagle [within the Wind River Reservation] for use in the tribe's traditional religious ceremony, the Sun Dance.” Id. at 942. The BGEPA prohibits the take of bald and golden eagles unless a permit has been issued. As defined in the Code of Federal Regulations, “Take means pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 50 C.F.R. § 22.3 (2014). Mr. Friday did not have a permit to take the bald eagle and was charged by the United States with violating the BGEPA. Id. at 942, 945. Mr. Friday moved to dismiss the charges under the Religious Freedom Restoration Act (RFRA). Id. at 946. The district court granted the motion. Id.

The Tenth Circuit Court of Appeals reversed. The Tenth Circuit concluded that BGEPA “and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle.” Id. at 942. Therefore, the court determined that BGEPA and its regulations do not violate RFRA. Id. The Tenth Circuit also noted the following:

We are not oblivious to the possibility that the government's permit process for the religious taking of eagles may be more accommodating on paper than it is in practice. If so—if the process is improperly restrictive, burdensome, unresponsive or slow—we trust that members of the tribe will not hesitate to vindicate their rights either through petition or in a proper suit. This, however, is not the occasion to consider those issues, because the defendant made no attempt to use the system.

Id. at 960.

In response to Friday, on October 7, 2009, Plaintiffs submitted an application for a permit with Defendants to take bald eagles within the Wind River Reservation pursuant to the BGEPA. R. at 224–40. Plaintiffs sought to take bald eagles for use in religious ceremonies. Id. In permit application section entitled The State, county, and locality (or reservation) where the collection will occur,” Plaintiffs provided “Wyoming, Freemont County, Wind River Indian Reservation.” R. at 226.

On January 26, 2010, the Attorney General of the Eastern Shoshone Tribe, Kimberly D. Varilek, wrote a letter to Defendants. The letter voiced the opposition of the Eastern Shoshone Tribe to the take of bald eagles by the Northern Arapaho Tribe within the Wind River Reservation. R. at 4–41.3 The letter did not reference any religious or cultural objection on the part of the Eastern Shoshone Tribe. See id.

On September 28, 2010, Defendants sent a letter to Plaintiffs notifying them that their application was deficient and requested additional information. Id. at 211–14. On October 29, 2010, Plaintiffs sent Defendants a second permit application containing the additional requested information. Id. at 233–50. In permit application section entitled The State, county, and locality (or reservation) where the collection will occur,” Plaintiffs again provided “Wyoming, Freemont County, Wind River Indian Reservation.”Id. at 236.

On December 17, 2010, Defendants notified Plaintiffs that before they could issue a permit, they were required by Executive Order 13175 to consult with the Eastern Shoshone Tribe. Id. at 356. On June 8, 2011, Defendants met with the Joint Business Council, consisting of members of both tribes, to discuss the permit application. The minutes of that meeting are not contained within the administrative record.

On November 7, 2011, over two years after Plaintiffs submitted their original permit application, Plaintiffs commenced the present action by filing a Complaint. Doc. No. 1. Plaintiffs alleged that Defendants have failed or refused to issue a federal permit to allow the taking of an eagle by members of the Northern Arapaho Tribe for traditional Native American religious purposes.” Id.

On December 6, 2011, A.G. Varilek sent Defendants a second letter. R. at 1042–48. The letter contains two opaque references to the Eastern Shoshone Tribe's cultural or religious objection to the Northern Arapahoe Tribe taking eagles within the Wind River Reservation. See id. First, the letter states that “part of inherent tribal sovereignty is a Tribe enacting and consent [sic] laws that will not only govern their tribal members and tribal lands, but should protect all aspects of the Tribe and tribal members' interests, activities, cultural and religious practices.” Id. at 1047. Second, the letter concludes by stating, “NAT demands respect for its cultural and tribal practices, but must also give respect to the Eastern Shoshone Tribe's tribal and cultural practices....” Id. at 1048.

On December 13, 2011, Defendants met with the Eastern Shoshone Business Council. During that meeting, “the Eastern Shoshone Business Council repeated its position that it opposed the take of eagles on the Wind River Reservation because bald eagles are sacred to the EST.” Id. at 530. Following that meeting, Defendants determined the consultation with the Eastern Shoshone Tribe required by Executive Order 13175 was complete. Id.

On December 16, 2011, Wade LeBeau, an enrolled member of the Eastern Shoshone Tribe sent a letter to Defendants. Id. at 381–95. Mr. LeBeau stated that [a]llowing an enemy tribe the right to kill our sacred eagles goes against our traditions, values, morals, heritage, rights, freedoms, and the agreement of the United States.” Id. at 382. The letter further contends that the Eastern Shoshone Tribe uses the eagle repository “because we are AGAINST killing sacred animals.” Id. at 384. Mr. LeBeau also stated that if the Northern Arapaho Tribe were allowed to take eagles on the Wind River Reservation

then the USFWS is imposing, violating, disgracing, infringing, etc. on THOUSANDS of Shoshone people's rights, culture, traditions, beliefs, etc. It is wrong to take Shoshone people's
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    ...of success on the merits under the APA, "judicial review is generally limited to the administrative record." N. Arapaho Tribe v. Ashe , 92 F. Supp. 3d 1160, 1170 (D. Wyo. 2015) ; see also Camp v. Pitts , 411 U.S. 138, 142, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) ("the focal point for judicial ......
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