U.S. v. Wilgus

• Decision Date: 29 March 2011
• Docket Number: No. 09–4046.,09–4046.
• Citation: 638 F.3d 1274
• Parties: UNITED STATES of America, Plaintiff–Appellant,v.Samuel Ray WILGUS, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

638 F.3d 1274

UNITED STATES of America, Plaintiff–Appellant,

v.Samuel Ray WILGUS, Defendant–Appellee.

No. 09–4046.

United States Court of Appeals, Tenth Circuit.

March 29, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalReligious Freedom Restoration Act of 1993, §§ 2(b)(1), 3, 42 U.S.C.A. §§ 2000bb(b)(1), 2000bb–1

Kathryn Kovacs, U.S. Department of Justice Environment & Natural Resources Division, Appellate Section (Brett L. Tolman, United States Attorney, Richard Lambert, Assistant United States Attorney, Salt Lake City, UT, John C. Cruden, Acting Assistant Attorney General, Elinor Colbourn, Elizabeth Ann Peterson, Department of Justice Environment & Natural Resources Division, Appellate Section, Washington, D.C., with her on the briefs), Washington, D.C., for Plaintiff–Appellant.Joseph F. Orifici, Holladay, UT, for Defendant–Appellee.Before KELLY, EBEL, and MURPHY, Circuit Judges.EBEL, Circuit Judge.

This case requires us to navigate the treacherous terrain at the intersection of the federal government's obligations, on the one hand, to refrain from imposing burdens on the individual's practice of religion, and, on the other, to protect key aspects of our natural heritage and preserve the culture of Native American tribes. Defendant–Appellee Samuel Ray Wilgus was arrested in June of 1998 for possessing 141 feathers of bald and golden eagles. The Bald and Golden Eagle Protection Act (“Eagle Act”), 16 U.S.C. § 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed “for the religious purposes of Indian tribes.” Id. § 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. § 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

Faced with prosecution, Wilgus interposed as a defense the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb–1 (“RFRA”), which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. Wilgus argues that the government's choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers. The district court did not accept this argument, but this Court, sitting en banc, reversed and ordered a hearing on whether the Eagle Act is the least restrictive means of serving the government's interests. United States v. Hardman, 297 F.3d 1116, 1135–36 (10th Cir.2002) (en banc).

On remand, the district court conducted a number of hearings, considering both live testimony and documentary evidence, and held that application of the Eagle Act to Wilgus does indeed violate RFRA. United States v. Wilgus, 606 F.Supp.2d 1308, 1334–35 (D.Utah 2009). Exercising jurisdiction under 28 U.S.C. § 1291, we REVERSE.

BACKGROUND

Because of the highly statutory nature of the dispute in this case, we find it most efficient first to review the provisions of the two statutes at issue, then to set forth the factual underpinnings of Wilgus' conviction, and finally to review the procedural history of this matter.

Statutory BackgroundThe Eagle Act

The Bald and Golden Eagle Protection Act, in combination with the Migratory Bird Treaty Act and the Endangered Species Act, is one of the cornerstones of our nation's efforts to protect and preserve the bald eagle. The basis of that protection is a blanket ban on possession of any part of a bald or golden eagle:

Whoever ... without being permitted to do so as provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act 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 commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to this subchapter, shall be fined not more than $5,000 or imprisoned not more than one year or both.

16 U.S.C. § 668(a).¹ Originally passed in 1940, see Act of June 8, 1940, ch. 278, 54 Stat. 250–51, the Eagle Act was amended in 1962, adding both protection for golden eagles (the young of which are easily confused with bald eagles) and the exception at issue in this case, for possession for the religious purposes of Indian tribes. See Pub.L. 87–884, 76 Stat. 1246; Hardman, 297 F.3d at 1122. The exception reads:

Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes ... he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe.16 U.S.C. § 668a (emphasis added). Therefore, provided that the Secretary of the Interior is satisfied that to do so “is compatible with the preservation” of bald and golden eagles, he may by regulation allow possession of eagle parts “for the religious purposes of Indian tribes.”

The Secretary, acting through the Fish and Wildlife Service (“FWS”) of the Department of the Interior, has exercised this statutory authority and formulated regulations governing eagle permits. See generally 50 C.F.R. Ch. I, pt. 22. These regulations reiterate the broad prohibition on possession without a permit set out in the statute. 50 C.F.R. § 22.11. In implementing the exception to the ban “for the religious purposes of Indian tribes,” the regulations make it clear that only members of federally-recognized tribes may apply for and obtain eagle feather permits: “[w]e will issue a permit only to members of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs listed under 25 U.S.C. § 479a–1 engaged in religious activities who satisfy all the issuance criteria of this section.” 50 C.F.R. § 22.22. The Secretary will only grant the permit, however, if “we determine that the taking, possession, or transportation is compatible with the preservation of the bald and golden eagle.” Id. § 22.22(c). Finally, the permits and lawfully-possessed eagle parts “are not transferrable, except such birds or their parts may be handed down from generation to generation or from one Indian to another in accordance with tribal or religious customs.” Id. § 22.22(b)(1).

Eagle carcasses that are recovered by FWS agents or the public at large are sent to the National Eagle Repository, which is housed on the grounds of the Rocky Mountain Arsenal National Wildlife Refuge in Commerce City, Colorado. United States v. Friday, 525 F.3d 938, 944 (10th Cir.2008). The Repository receives the eagle carcasses and the requests for feathers and parts pursuant to permits, then prepares the former in order to fulfill the latter. Native American religious practitioners wishing to obtain eagle parts from the Repository are required to file a request for a permit with the Wildlife Permit Office in their state of residence. Applicants are asked to fill out a form on which they must certify that they are enrolled in a federally-recognized tribe. The FWS forwards those permit requests to the Repository, which then attempts to match the requests with the available supply of eagle parts. As noted below, however, the Repository receives significantly more requests than it has available eagle carcasses, and so applicants for eagle feathers and parts typically must wait a long period of time before those requests are fulfilled.

The Religious Freedom Restoration Act of 1993

In response to the government's indictment, Wilgus interposed the Religious Freedom Restoration Act of 1993. The genesis of RFRA lies in a protracted exchange between the Supreme Court and Congress over the proper standard to apply when reviewing laws that burden religion. In Employment Division v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that neutral laws of general applicability that nonetheless burden the exercise of religion would be subject only to rational-basis scrutiny under the First Amendment, rather than the heightened scrutiny it had applied in previous cases. In response, Congress passed RFRA, which purported “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.” 42 U.S.C. § 2000bb(b)(1). In City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court held that RFRA could not be constitutionally applied to the states as an exercise of Congress' power to enforce the Fourteenth Amendment. RFRA can, however, be constitutionally applied to the federal government, as an exercise of Congress' Article I, Section 8 powers under the Necessary and Proper Clause. See Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir.2001). Therefore, RFRA provides a statutory claim to individuals whose religious exercise is burdened by the federal government.

RFRA provides that:

(a) In general

Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Exception

Government may substantially burden a person's exercise of...