U.S. v. Tawahongva

• Citation: 456 F.Supp.2d 1120
• Decision Date: 11 September 2006
• Docket Number: No. 06 MJ 4013 PCT MEA.,06 MJ 4013 PCT MEA.
• Parties: UNITED STATES of America, Plaintiff, v. Berra TAWAHONGVA, Defendant.
• Court: U.S. District Court — District of Arizona

456 F.Supp.2d 1120

UNITED STATES of America, Plaintiff, v. Berra TAWAHONGVA, Defendant.

No. 06 MJ 4013 PCT MEA.

United States District Court, D. Arizona.

September 11, 2006.

Camille Deanne Bibles, U.S. Attorney's Office, Flagstaff, AZ, for Plaintiff.

Lee Brooke Phillips, Law Offices of Lee Phillips PC, Flagstaff, AZ, for Defendant.

MEMORANDUM AND ORDER

ASPEY, United States Magistrate Judge.

Before the Court is Defendant's Motion to Dismiss, asserting a conviction on the charge against him, a violation of the Migratory Bird Treaty Act, would be unconstitutional. Defendant contends his conviction would violate his right to the free exercise of his religion, guaranteed by the First Amendment to the United States Constitution. Defendant argues that requiring him to acquire a permit prior to taking golden eagles constitutes a substantial burden on the free exercise of his religion and, therefore, that the Religious Freedom Restoration Act prohibits his prosecution for failing to obtain such a permit.

The Court conducted an evidentiary hearing on Defendant's motion on August 22, 2006. For the reasons that follow, Defendant's motion to dismiss the charge against him is denied.

Factual Background and Procedural History

Pursuant to a search warrant, in early June of 2005 United States Fish and Wildlife Service officers searched a fenced area behind Defendant's residence within the boundaries of the Hopi reservation and seized two live golden eagles. Prior to executing the warrant the officers ascertained the Hopi tribal government had not issued a permit to Defendant to take or possess golden eagles. Defendant was charged with violation of the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668(a) and 18 U.S.C. § 2 (Count I); violation of the Migratory Bird Treaty Act, 16 U.S.C. § 703 and 18 U.S.C. § 2 (Count II); and violation of the Lacey Act and Hopi law regarding possession of golden eagles without a permit (Count III). On May 4, 2006, the Court granted the government's motion to dismiss counts one and three of the complaint. The remaining charge is a Class B misdemeanor, punishable by imprisonment for a term of up to six months and a fine of up to, $15,000, or both. See 16 U.S.C. § 707(a) (2000 & Supp.2006).

The Migratory Bird Treaty Act ("MBTA"), codified at 16 U.S.C. 703-712,¹ provides:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof, [including golden eagles].

Id. § 703(a).

The MBTA was enacted in 1918. Congress ratified the relevant international treaties² regarding protection of migratory bird species and enacted the MBTA to effectuate the United States' compliance with those treaties in recognition of the harm posed by unregulated taking of golden eagles and other migratory birds to those species' existence. See 74 Stat. 866; H.R.Rep. No. 1787, 86th Cong., 2d Sess. (1960); S.Rep. No. 1779, 86th Cong., 2d Sess. (1960). See also Andrus v. Allard, 444 U.S. 51, 62, 100 S.Ct. 318, 325, 62 L.Ed.2d 210 (1979). The United States Congress has repeatedly avowed the purpose of the MBTA and amending legislation to be maintaining healthy populations of migratory birds in North America. See, e.g., S.Rep. No. 92-1159, 92nd Cong., 2d Sess.1972, 1972 U.S.C.C.A.N. 4285; North American Wetlands Conservation Act of 1989, Pub.L. No. 101-233, § 2(a), 103 Stat. 1968, codified at 16 U.S.C. § 4401. Congress' desire to protect golden eagles was clearly evidenced by amendment of the 1940 Bald Eagle Protection Act in 1962 to add golden eagles to bald eagles as a species protected by this legislation.³

The MBTA prohibits the possession and taking of golden eagles except as otherwise provided by law. Federal law allows for the otherwise prohibited taking and possession of live golden eagles for religious uses by practitioners of American Indian religions. To accommodate the religious practice of the Hopi, specifically, the United States Fish and Wildlife Service ("USFWS") has promulgated regulations allowing Hopi to lawfully obtain and possess golden eagles for their religious use.

The USFWS has issued permits to take eagles to the Hopi annually since 1986. See Docket No. 40, Attach.⁴ The USFWS permitted the Hopi to "take" from Hopi reservation lands from twelve to an unlimited number of golden eagles, per year for religious use from 1986 through 1996. Id. The permitted annual "take" from 1997 through 2005 from reservation lands has been 40 golden eagles. Id. The reported annual take of golden eagles by the Hopi from reservation lands from 1997 through 2003 has varied from as few as two birds to as many as 38 birds. Id., Attach. Additionally, the State of Arizona has permitted the Hopi to take ten golden eagles per year from state lands, and the Navajo Nation has permitted the Hopi to take twelve eagles per year from Navajo reservation lands each year from 1998 through 2003. Id.

A USFWS agent has represented to the Court that the USFWS issued a permit in 2005 in the name of Wayne Taylor, Jr., Chairman and Chief Executive Officer of the Hopi Tribe, allowing the Chairman "and tribal members designated by him" to "take" forty golden eagles in the year 2005.⁵ Docket No. 1, Attach. (Statement of Probable Cause).

Additionally, the Hopi Tribal Council has adopted tribal regulations, involving a permit system, for the taking of live golden eagles for religious purposes from Hopi reservation lands, from state trust lands, from the former Navajo-Hopi joint use area, and from exclusively Navajo tribal lands. See Hopi Tribe Wildlife Ordinance Nos. 48, 7.11, 7.16. The tribal regulations were enacted in accordance with the Hopi tribal government's obligation to Hopi people to negotiate with other sovereign entities to preserve the traditional Hopi practice of gathering golden eagles for religious purposes.

The Hopi eagle permit system is administered by the tribal Cultural Preservation Office ("CPO"). The testimony presented at the hearing indicated the CPO regulates the issuance of permits to ensure that specific golden eagle acquiring sites historically utilized by specific village and clan affiliations are not trespassed upon by others,⁶ and to preserve the longevity of the golden eagle population historically resident on Hopi reservation land.

A Hopi tribal natural resources officer testified a Hopi individual may obtain a permit to take a golden eagle by going to the CPO office and filling out the requisite application, without any required waiting period or prepayment of any fee.⁷ The testimony presented at the hearing indicates the eaglets are optimally "taken" in May or June, when they are fledged, and that they are sacrificed, or returned, during the Niman Kachina ceremony in July. The hearing testimony indicated that, on some occasions, the CPO has issued a permit after an eagle has been taken. It is not disputed that, in 2005, only 21 of the 40 available permits were dispensed by the Cultural Preservation Office; 19 permits were available that year to qualified individuals, including Defendant, had they applied for the permits.

The parties do not dispute Defendant is an enrolled member of the Hopi, a federally-recognized American Indian tribe, who, as such, is eligible to receive a permit to take golden eagles. The government does not dispute that Defendant, who is a member of the Coyote clan, is an elder in the One-Horn kiva of Mishongnovi, and that to fulfill his religious duties to the kiva he must collect golden eagles each year. The parties do not dispute the use of live golden eagles is a central tenet of Hopi religious practice, which has continued since "time immemorial."⁸ The Court notes that evidence presented at the hearing indicated that, in 2005, a Kikmongwi⁹ from the village of Mishongnovi was issued a permit to take eagles by the CPO.

Analysis

Standard for granting or denying a motion to dismiss a criminal charge

Federal Rule of Criminal Procedure 12(b)(2) provides "[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." Fed. R.Crim.P. 12(b)(2) (2006). A charge in a complaint may be dismissed if it is subject to a defense that may be decided solely on issues of law. Cf. United States v. Labs of Virginia, Inc., 272 F.Supp.2d 764, 768 (N.D.Ill.2003) (in the context of a motion to dismiss an indictment); United States v. Flores, 404 F.3d 320, 324 (5th Cir.2005) ("[t]he propriety of granting a motion to dismiss an indictment under [Rule 12, Federal Rules of Criminal Procedure] by pretrial motion is by-and-large contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact. If a question of law is involved, then consideration of the motion is generally proper."). See also United States v. Marzook, 426 F.Supp.2d 820, 823-24 (N.D.Ill.2006); United States v. Boater, 342 F.Supp.2d 176, 180 (S.D.N.Y.2004). Arguments raised in a motion to dismiss that rely on disputed facts should be denied. United States v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill. 2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir.1992).¹⁰

Defendant's claim his prosecution violates his constitutional right to the free exercise of his religion.

Defendant raises a free...