U.S. v. Antoine

• Decision Date: 31 January 2003
• Docket Number: No. 02-30008.,02-30008.
• Citation: 318 F.3d 919
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard Fridall Terry ANTOINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

318 F.3d 919

UNITED STATES of America, Plaintiff-Appellee, v. Leonard Fridall Terry ANTOINE, Defendant-Appellant.

No. 02-30008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 4, 2002.

Filed January 31, 2003.

Michael Filipovic, First Assistant Federal Public Defender, Seattle, WA, argued for the appellant. Vicki W.W. Lai joined him on the brief.

Helen J. Brunner, Assistant United States Attorney, Seattle, WA, argued for the appellee. John McKay joined her on the brief.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CR-01-00034-TSZ.

Before REAVLEY,^* KOZINSKI and W. FLETCHER, Circuit Judges.

OPINION

KOZINSKI, Circuit Judge.

This case once again pits the federal government's efforts to save the bald eagle from extinction against the bird's profound significance to Native spirituality. Appellant Leonard Fridall Terry Antoine, a member of a Canadian Indian tribe, is spending two years in prison for violating the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. §§ 668-668d. We must decide whether his conviction violates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4.

1. Antoine is a member of the Cowichan Band of the Salish Indian Tribe in British Columbia. He obtained dead eagles in Canada and brought feathers and other eagle parts into the United States, where he swapped them for money and goods. Antoine claims that these exchanges are part of the native custom of "potlatch," which to him has religious significance. United States authorities charged him with violating BGEPA, which makes it illegal to "knowingly ... take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle" or part thereof. 16 U.S.C. § 668(a).

Notwithstanding this prohibition, members of federally recognized Indian tribes can apply for permits to possess and transport eagles or eagle parts for religious purposes. See id. § 668a; 50 C.F.R. § 22.22. Federal wildlife agents who find eagle carcasses send them to a repository in Colorado, which fills applications on a first-come, first-served basis. Because demand significantly exceeds supply, the waiting list is several years long. Antoine is not eligible for a religious use permit at all, however, because his band is not recognized by the United States.

Antoine moved to dismiss the prosecution, arguing that he was exempt from BGEPA under RFRA, which suspends generally applicable federal laws that "substantially burden a person's exercise of religion" unless the laws are "the least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C § 2000bb-1(a)-(b); Guam v. Guerrero, 290 F.3d 1210, 1220-21 (9th Cir.2002).¹ The district court assumed that all of Antoine's activities held religious significance to him, and found that BGEPA imposed a substantial burden.² It nonetheless refused to dismiss the charges, holding that BGEPA survives strict scrutiny under RFRA. Antoine was convicted and now appeals.

2. We confronted the intersection of RFRA and BGEPA on one prior occasion: United States v. Hugs, 109 F.3d 1375 (9th Cir.1997) (per curiam). In Hugs, we rejected a RFRA challenge brought by members of a recognized Indian tribe. Id. at 1378-79.³ We found that the government's interest in "protecting eagles as a threatened or endangered species" was compelling. Id. at 1378. We further determined that the permit scheme was the least restrictive means of pursuing that interest because it still "permitt[ed] access to eagles and eagle parts for religious purposes," albeit not in as convenient a manner as the defendants would have liked. Id. at 1378-79; accord United States v. Oliver, 255 F.3d 588 (8th Cir.2001) (per curiam); United States v. Jim, 888 F.Supp. 1058 (D.Or.1995); cf. United States v. Top Sky, 547 F.2d 486 (9th Cir.1976) (per curiam) (rejecting a similar challenge under the Free Exercise Clause); United States v. Thirty Eight (38) Golden Eagles or Eagle Parts, 649 F.Supp. 269 (D.Nev.1986) (same). But see United States v. Abeyta, 632 F.Supp. 1301, 1307 (D.N.M.1986) (criticizing the repository program as "utterly offensive and ultimately ineffectual").

Antoine distinguishes Hugs on two grounds. He first notes that two years after Hugs was decided, the Fish and Wildlife Service proposed removing the bald eagle from the threatened species list because "available data indicate[d] that this species ha[d] recovered." Proposed Rule To Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36,454, 36,454 (proposed July 6, 1999). We find the force of this evidence limited. The proposed rule is just that; the Service has not made a final decision to delist. Agencies issue proposed rules in order to educate themselves about their likely effects. See 5 U.S.C. § 553(c). The Service may well revise its analysis in light of the information it receives. Because the delisting proposal is based on incomplete information, it carries less weight than a final rule. See Oliver, 255 F.3d at 589.

The delisting proposal concededly provides some support for Antoine's argument that the eagle-protection interest is weaker than when Hugs was decided. And changed circumstances may, in theory, transform a compelling interest into a less than compelling one, or render a well-tailored statute misproportioned. Nonetheless, the government cannot reasonably be expected to relitigate the issue with every increase in the eagle population. Cf. Nixon v. Shrink Mo. Gov't PAC, 528 U.S. 377, 391, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) ("The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or down with the novelty ... of the justifications raised."). Such an approach would plague our circuit law with inconsistency and uncertainty. A party claiming that time has transformed a once-valid application of a statute into an invalid one must adduce evidence sufficient to convince us that a substantial change in relevant circumstances has occurred. The proposal to delist does not meet this standard.

Antoine's second argument presents a more difficult question. Unlike the defendants in Hugs, Antoine is ineligible for a permit because he is not a member of a recognized tribe. He argues that his exclusion from the permit scheme violates RFRA and so he cannot be prosecuted for obtaining eagles by other means.⁴ We do not read Hugs to foreclose this aspect of Antoine's challenge. The question whether the permit regime in general is valid is distinct from the question whether its restriction to recognized tribe members is valid. The latter question was neither presented nor decided in Hugs; the defendants there were eligible for permits but chose not to pursue them. Hugs defeats arguments that the government must increase the number of eagles available (by allowing people to kill their own, for example), but it doesn't speak to how that limited supply of eagles is allocated.

Circuits have split over the exclusion of nonmember Indians from the permit program. In Gibson v. Babbitt, 223 F.3d 1256 (11th Cir.2000) (per curiam), the Eleventh Circuit determined that restricting permits to members of federally recognized tribes was the least restrictive means of pursuing a compelling interest in restoring Indian treaty rights. Id. at 1258. The United States's treaties with recognized tribes typically secured the right to hunt on reservations, but BGEPA partially abrogated that right. United States v. Dion, 476 U.S. 734, 745, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986). Gibson saw the religious use exemption as a valid way to ameliorate the effects of that abrogation by giving tribe members alternative access to eagles. 223 F.3d at 1258; cf. United States v. Lundquist, 932 F.Supp. 1237 (D.Or.1996) (upholding the restriction on different grounds against a similar challenge).

The Tenth Circuit saw things differently in United States v. Hardman, 297 F.3d 1116 (10th Cir.2002) (en banc). Although it recognized a compelling interest in "preserving Native American culture and religion" and "fulfilling trust obligations to Native Americans," id. at 1129, it held, on a record no less extensive than ours, that the government had failed to prove that exclusion of nonmembers was the least restrictive means to address the interest.⁵ In the Tenth Circuit's view, the government had "failed to show that broader eligibility would result in an increased wait substantial enough to endanger Native American cultures." Id. at 1133. Moreover, although "[t]he government's interest in preserving eagles might have something to do with the total number of people who are allowed to acquire eagle feathers, ... it quite possibly has little to do with the question here, which is how those permits are distributed." Id. at 1135.

We do not believe RFRA requires the government to make the showing the Tenth Circuit demands of it. Although the record contains no data on the number of nonmembers who would seek permits if eligible, the consequences of extending eligibility are predictable from the nature of the repository program. The supply of eagles is fixed because the government distributes every eagle and eagle part that comes into the repository; Hugs's conclusion that the permit program is the least restrictive means of protecting eagles forecloses any challenge to the government's refusal to increase supply beyond that.⁶ If the government extended eligibility, every permit issued to a nonmember would be one fewer issued to a member. This is the inescapable result of a demand that exceeds a fixed supply.

RFRA requires least restrictive means to avoid substantial burdens on religion. But, in this case, the burden on religion is inescapable; the only question is whom to burden and how much. Both...