U.S. v. Gonzales, CR95-438 JP.

Citation957 F.Supp. 1225
Decision Date31 January 1997
Docket NumberNo. CR95-438 JP.,CR95-438 JP.
PartiesUNITED STATES of America, Plaintiff, v. Robert GONZALES, Defendant.
CourtSupreme Court of New Mexico

Peter Schoenburg, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, NM, Gail J. Evans, Hannum & Evans, Albuquerque, NM, for Robert Peter Gonzales.

Jonathon M. Gerson, U.S. Attorney's Office, District of New Mexico, Albuquerque, NM, for U.S.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

The subject of this Memorandum Opinion and Order is defendant Robert Gonzales' "Motion to Dismiss (Number One) Based on Violation of Mr. Gonzales' First Amendment Rights" (Doc. No. 10) filed October 13, 1995. On January 4, 1996 and July 9, 1996, I held hearings at which the scope of Mr. Gonzales' standing to attack the statutes under which he is charged, as well as the relevant regulations, was discussed. By Order entered September 17, 1996, I ruled that Mr. Gonzales' "as applied" challenge is limited to those statutes and regulations at issue in this case as they were applied to him. He does not have standing to mount a broad attack on the administration of all the regulations. Specifically, he may challenge those parts of the regulations that required him to submit an application for, and receive, a permit before killing an eagle and those that instructed him to include certain information on that application before receiving a permit. On December 4, 1996, I held a hearing on Mr. Gonzales' motion to dismiss. Jonathan Gerson represented the United States at the hearings. Peter Schoenburg and Gail Evans represented Mr. Gonzales. After thoroughly considering the pleadings, law, facts, and arguments of counsel, I conclude that Mr. Gonzales' motion should be granted and that the information against him should be dismissed.

Background

The facts of this case are simple. On February 7, 1995, Mr. Gonzales, a member of the San Ildefonso Pueblo, shot and killed a bald eagle. Mr. Gonzales does not deny shooting the eagle. He asserts that he was going to use the eagle carcass for an upcoming religious ceremony within the pueblo. The United States Attorney filed an information charging Mr. Gonzales with violating the Endangered Species Act, 16 U.S.C. §§ 1538 and 1540 (the "ESA"), the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a) (the "BGEPA"), the Migratory Bird Treaty Act, 16 U.S.C. § 707(a) (the "MBTA"), and 50 C.F.R. §§ 10.13, 17.11, and 21.11.1 In general, these laws make it illegal to kill a bald eagle. Congress has, however, carved out an exception allowing officially permitted killing of bald eagles for the religious purposes of Native Americans.

Mr. Gonzales contends that the statutes and regulations under which he is charged impinge on his rights under the First Amendment to the Constitution of the United States and also violate his rights under the Religious Freedom and Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4. Because "a federal court should not decide federal constitutional questions where a dispositive nonconstitutional ground is available," Hagans v. Lavine, 415 U.S. 528, 547, 94 S.Ct. 1372, 1384, 39 L.Ed.2d 577 (1974), I do not reach Mr. Gonzales' First Amendment argument. I base my decision solely on RFRA.

The United States argues that Mr. Gonzales lacks standing to challenge the statutes and regulations and, alternatively, that the laws he is attacking do not violate RFRA.

Standing Analysis

The United States takes the position that Mr. Gonzales lacks standing to raise a facial challenge to the laws in question because he testified during re-cross examination at the December 4, 1996 hearing that the alleged intrusiveness of certain questions contained on the application form used by the U.S. Fish and Wildlife Service in the process of issuing permits to Native Americans played no part in his decision to forego obtaining a permit before shooting the eagle on February 7, 1995.2 Tr. 82. While Mr. Gonzales did testify to that effect on December 4, 1996, at the January 4, 1996 hearing he testified that one of the reasons he did not apply for a permit prior to shooting the eagle was that certain questions on the application form were intrusive and unduly pried into his religious life. Tr. 16.

Reconciliation of this conflicting testimony is not crucial to resolution of the standing issue. In the September 17, 1996 Order, I addressed Mr. Gonzales' "as applied" standing. I limited it to a challenge of the regulations that were being applied to him, namely the regulations requiring him to submit an application containing certain information, 50 C.F.R. §§ 22.22(a)(1)-(6). I now conclude that Mr. Gonzales may also mount a facial challenge to those regulations. The fact that Mr. Gonzales has been indicted is sufficient to confer standing on him to raise a facial challenge to the laws he is charged with violating. In order to have standing to make a facial challenge, Mr. Gonzales must demonstrate "injury in fact and a substantial likelihood that the judicial relief requested will prevent or redress the claimed injury...." INS v. Chadha, 462 U.S. 919, 936, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983), citing Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 79, 98 S.Ct. 2620, 2633, 57 L.Ed.2d 595 (1978). See also Baca v. King, 92 F.3d 1031, 1036 (10th Cir.1996). Mr. Gonzales' injury is the fact that he has been charged with crimes by information. See United States v. Bozarov, 974 F.2d 1037, 1040 n. 1 (9th Cir.1992) ("Bozarov has already been indicted, and thus has been directly injured by the statute that he claims is unconstitutional."), cert. denied, 507 U.S. 917, 113 S.Ct. 1273, 122 L.Ed.2d 668 (1993). If I dismiss the information, Mr. Gonzales' injury will be redressed in that the possibility of him being convicted will disappear. See Bozarov, 974 F.2d at 1040-41 ("Bozorov has unquestionably been injured ... and invalidation of [the statute in question] will prevent him from being convicted. He therefore has standing to [raise a facial challenge].").

Under the peculiar facts of Mr. Gonzales' case, where he did not submit an application for a permit before shooting the eagle, a facial challenge and an "as applied" challenge to 50 C.F.R. §§ 22.22(a)(1)-(6) are virtually identical. Mr. Gonzales has standing to mount both a facial and "as applied" challenge to 50 C.F.R. §§ 22.22(a)(1)-(6).3 In this case, for either of the alternatives, my analysis and conclusion are the same.

RFRA Analysis

RFRA was enacted to counter the opinion of the Supreme Court of the United States in Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In sum, RFRA codified pre-Smith First Amendment jurisprudence. Under RFRA, the government cannot place a substantial burden on a person's exercise of religion unless "that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. § 2000bb-1(b).

In order to succeed in his challenge, Mr. Gonzales must first show that the statutes and regulations at issue place a substantial burden on his exercise of religion. I conclude that he has made that showing. At the December 4 hearing, Mr. Gonzales presented considerable evidence through various witnesses, including himself and Professor Alfonso Ortiz, that 50 C.F.R. §§ 22.22(a)(4) & (6), the regulations requiring Mr. Gonzales to state on an application the name of the tribal religious ceremony for which he seeks an eagle and requiring him to obtain certification from a religious elder to the effect that he is authorized to participate in that ceremony, constitute a substantial burden on his exercise of his religion. The religious ceremonies in which Mr. Gonzales participates are very secretive. Requiring him to state, on a public record, the name of that secret ceremony substantially burdens the practice of his religion by forcing him to disclose confidential information of a nature sacred to him. Likewise, requiring Mr. Gonzales to obtain religious elder certification is also substantial burden. Acquiring that certification makes Mr. Gonzales ask an elder to disclose to the world the elder's position within the secret religious group. That disclosure is anathematic to Mr. Gonzales' religion.

Based on this evidence, I conclude that 50 C.F.R. §§ 22.22(a)(4) & (6) impose a substantial burden on Mr. Gonzales' practice of his religion.4 In making this narrow finding, I do not determine whether the application/permit process as a whole is a substantial burden on Mr. Gonzales' practice of his religion. My decision is limited to a determination that 50 C.F.R. §§ 22.22(a)(4) & (6) both impose a substantial burden on Mr. Gonzales' practice of his religion.5

This ruling leads to the next step which requires the United States to make a showing that the burden imposed on Mr. Gonzales is in furtherance of a compelling governmental interest. I conclude that the United States has satisfied that requirement. At the December 4, 1996 hearing the United States proffered the testimony of Dr. James Lewis, an Endangered Species Biologist with the United States Fish & Wildlife Service. Dr. Lewis was subjected to cross-examination at the hearing. Dr. Lewis testified about the government's compelling interest in preserving the bald eagle including sustaining the national symbol of the United States of America and ensuring biodiversity and healthy ecosystems. Proffer at ¶ 9. Dr. Lewis also noted that bald eagles had recently been reclassified by the Fish & Wildlife Service from endangered to threatened but that, as a threatened species, bald eagles could become endangered in the very near future. Tr. 141-42. Because of the precarious nature of the bald eagle's survival and because of the importance of that survival to our nation, I conclude that the government has...

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