United States v. Thirty Eight (38) Golden Eagles, No. CV-R-83-474-ECR.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
Writing for the CourtLawrence J. Semenza, Reno, Nev., for defendants
Citation649 F. Supp. 269
PartiesUNITED STATES of America, Plaintiff, v. THIRTY EIGHT (38) GOLDEN EAGLES OR EAGLE PARTS, Defendants.
Docket NumberNo. CV-R-83-474-ECR.
Decision Date15 October 1986

649 F. Supp. 269

UNITED STATES of America, Plaintiff,
v.
THIRTY EIGHT (38) GOLDEN EAGLES OR EAGLE PARTS, Defendants.

No. CV-R-83-474-ECR.

United States District Court, D. Nevada.

October 15, 1986.


649 F. Supp. 270
COPYRIGHT MATERIAL OMITTED
649 F. Supp. 271
Lamond R. Mills, U.S. Atty., by Shirley Smith, Asst. U.S. Atty., Reno, Nev., Jose A. Toro, U.S. Dept. of Justice, Washington, D.C., for plaintiff

Lawrence J. Semenza, Reno, Nev., for defendants.

ORDER

EDWARD C. REED, Jr., Chief Judge.

This is a forfeiture action which comes to this Court by way of a Report and Recommendation made by the United States Magistrate regarding the plaintiff's motion for summary judgment. In that Report and Recommendation, the Magistrate indicates that summary judgment for the plaintiff should be granted, and that these defendant eagles and eagle parts should be forfeited to the plaintiff. A brief review of the facts leading up to the present posture of this case is appropriate.

In January of 1982, the claimant, Adam Norwall, sold or exchanged two full golden eagle wings to agents of the United States Fish and Wildlife Service (FWS). In the months that followed, the claimant made several exchanges with these agents, such that all of the defendants in question in this proceeding were given to the agents in return for money. On May 4, 1982, the claimant was indicted for illegally selling and offering to sell eagle carcasses and eagle parts, in violation of the Eagle Protection Act, 16 U.S.C. § 668(a) (Supp. V 1975). This case was tried in February of 1983, and ended in a hung jury and mistrial. The claimant was not retried on these charges.

In December of 1983, however, the Field Solicitor for the Department of the Interior assessed a civil penalty of $15,000 against the claimant under the same sections and also under Section 22, Title 50 of the Code of Federal Regulations. In that same month, the plaintiff filed the action now before the Court, seeking forfeiture of the defendants under the provisions of 50 C.F.R. § 12.1 et seq.

The claimant has opposed this forfeiture, arguing that the seizure of these eagles and eagle parts under the Act was in violation of his rights to free exercise of religion as secured by the first amendment to the Constitution. In addition, the claimant contends the Act was created in violation of the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996 (1978). Further, the claimant argues that his treaty rights as a member of the Red Lake bank of Chippewa Indians allows him the right to trade and possess eagles and eagle parts.

649 F. Supp. 272

In April of 1985, the plaintiff moved for summary judgment, contending that all relevant issues of fact had been resolved in the earlier proceedings of the case. This motion was submitted to the U.S. Magistrate, who recommended that summary judgment be granted for the following reasons. Initially, the Magistrate found that the claimant did not have standing to challenge the statutes and regulations which call for the forfeiture of these eagles and eagle parts, in that he had failed to apply for a permit to possess these items under the same provisions. Further, the Magistrate found there to be no triable issue of fact regarding the claimant's free exercise claims, in that all of the factors enunciated in Callahan v. Woods, 736 F.2d 1269 (9th Cir.1984) had clearly been met. Finally, the Report and Recommendation found no AIRFA violation in the Act. For these reasons, the Magistrate found that no triable issue of fact existed, and that summary judgment was proper under Fed.R.Civ.P. 56(a). Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

DISCUSSION

The Eagle Protection Act states in relevant part that

all bald or golden eagles, or parts, nests, or eggs thereof, taken, possessed, sold, purchased, bartered, offered for sale, purchase or barter, transported, exported, or imported contrary to the provisions of this subchapter, or of any permit or regulation issued hereunder, and all guns, traps, nets and other equipment, vessels, vehicles, aircraft, and other means of bartering, offering for sale, purchase, or barter, transporting, exporting, or importing of any bird, or part, nest or egg thereof, in violation of this subchapter or of any permit or regulation issued hereunder shall be subject to forfeiture to the United States.

16 U.S.C. § 668(b) (Supp. V 1975). The plain language of the statute thus prohibits the private possession of these animals or of any part of them without permission. The regulations governing the issuance of permits to Indians for the possession of eagles for religious purposes are found at 50 C.F.R. § 22.22, and provide that such permits will be granted upon a showing of:

1) the species and number of eagles to be taken or acquired by gift or inheritance,
2) the state and local area where the taking is to be done, or from whom the birds are to be acquired,
3) the name of the tribe with which the applicant is associated,
4) the name of the tribal religious ceremonies for which the specimens are required,
5) certification from the Bureau of Indian Affairs that the applicant is an Indian,
6) certification from a duly authorized official of the religious group that the applicant is authorized to participate in such ceremonies.

50 C.F.R. § 22.22(a). The regulations further indicate that eagles or eagle parts possessed under such a permit shall not be transferred, except to be handed down from generation to generation in accordance with tribal or religious custom. 50 C.F.R. § 22.22(b)(1).

STANDING

In the present case, the claimant has freely admitted that he failed to apply for the relevant permits described above in order to possess and transfer the defendants legally. He argues that these provisions are facially unconstitutional in that they burden his free exercise of religion. In her consideration of the claimant's argument, the Magistrate concluded that the claimant lacks standing to challenge the constitutionality of these provisions, in that he had never personally applied for a permit, thereby failing to allege a personal stake in the outcome of this matter.

It appears, however, that the claimant has alleged a sufficiently personal stake in the outcome of this suit to have standing. The Ninth Circuit has recently enunciated a three-part test by which to measure cases for the requirement of standing. In Railway

649 F. Supp. 273
Labor Executive Ass'n v. Dole, 760 F.2d 1021 (9th Cir.1985), a railroad labor organization and an individual railroad employee sued the Secretary of the Department of Transportation and the Administrator of the Federal Railroad Administration for injunctive and declaratory relief in order to force those agencies to enforce railroad statutes which mandate the assessment of penalties against railroads for safety violations. The court, examining the standing of the plaintiffs sua sponte, indicated that a plaintiff must first show a distinct and palpable injury to himself in order to be able to sue in federal court. Id. at 1023, citing Warth v. Seldin, 422 U.S. 490 at 501, 95 S.Ct. 2197 at 2206, 45 L.Ed.2d 343 (1975). Second, the court found that the plaintiff must demonstrate a fairly traceable causal connection between the injury and the defendant's conduct in order to bring the action. Id., citing Duke Power Co. v. Carolina Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 2629, 57 L.Ed. 595 (1978). Finally, the court noted that there must be a substantial likelihood that the plaintiff's request will redress or prevent the alleged injury in order for the suit to lie. Id., citing Duke Power, supra, at 79, 98 S.Ct. at 2633

In the present case, the Magistrate concluded that claimant has failed to allege a distinct and palpable injury to himself, the first factor under Dole, as he has failed to apply for exemption from the Eagle Protection Act through the accepted channels. In this sense, reasons the Magistrate, the only injury which he can allege is that of other Indians, who have gone through the entire process and have had their requests for eagles or parts denied or unreasonably delayed. If the claimant were attempting to assert solely the rights of the other Indians in this matter, the Magistrate's point would be well taken. In this case, however, that the claimant is attempting to establish that the entire Act and permit process is facially unconstitutional in that the mere existence of the regulations burdens his exercise rights unreasonably. Several United States Supreme Court decisions show that the claimant need not have attempted to comply with the regulations in order to challenge facial constitutionality.

In Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed.2d 1105 (1958), for example, the petitioner had applied for a permit to hold religious services in a city park, but the permit was refused him. The petitioner then held the services without the permit and was arrested. The state supreme court held that the petitioner's only avenue in which to challenge the constitutionality of this statute was a direct appeal from the denial of the permit. Petitioner could not challenge the constitutionality of the statute in an appeal from an arrest for violation of the permit statute, in that the statute was held to be constitutional on its face and not void for vagueness or overbreadth. Thus, the state court held that the petitioner had no standing to challenge the constitutionality of the statutes, in that he had failed to appeal from the original denial of the permit. Id. at 400, 73 S.Ct. at 763.

The Supreme Court agreed. Initially, it noted that "the valid requirements of license are for the good of the applicants and the public." Id., at 409, 73 S.Ct. at 768. The Court further recognized that this licensure requirement would cast a burden upon the exercise of free speech, but, "the expense and annoyance of litigation is a price...

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17 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...cert. denied, ___ U.S. ___, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). For example, in United States v. Thirty Eight (38) Golden Eagles, 649 F.Supp. 269, 277-78 (D.Nev.1986), aff'd, 829 F.2d 41 (9th Cir.1987) a forfeiture action under the Bald Eagle Protection Act, the court imposed civil penalt......
  • Ward v. New York, No. 03-CV-485S.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 19, 2003
    ...v. Giuliani, 252 F.3d 645, 647 (2d Cir. 2001). 7. Plaintiffs also cite United States v. Thirty Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269 (D.Nev.1986). In that case, the federal government sought forfeiture of certain eagles and eagle parts seized pursuant to the Eagle Protection A......
  • U.S. v. Hardman, No. 99-4210.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 5, 2002
    ...therefore must be seen as having a substantial effect on the exercise of religious belief. United States v. Thirty-Eight Golden Eagles, 649 F.Supp. 269, 276 (D.Nev.1986), aff'd 829 F.2d 41 (9th Cir.1987). Given this, we next consider whether the regulations governing the BGEPA and MBTA: (1)......
  • U.S. v. Friday, No. 06-8093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 2008
    ...United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997) (per curiam); United States v. Thirty Eight (38) Golden Eagles or Eagle Parts, 649 F.Supp. 269, 274 6. In Doctor John's, we left undecided whether a plaintiff making a facial challenge must go so far as to "establish that no set......
  • Request a trial to view additional results
17 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...cert. denied, ___ U.S. ___, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987). For example, in United States v. Thirty Eight (38) Golden Eagles, 649 F.Supp. 269, 277-78 (D.Nev.1986), aff'd, 829 F.2d 41 (9th Cir.1987) a forfeiture action under the Bald Eagle Protection Act, the court imposed civil penalt......
  • Ward v. New York, No. 03-CV-485S.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Western District of New York
    • August 19, 2003
    ...v. Giuliani, 252 F.3d 645, 647 (2d Cir. 2001). 7. Plaintiffs also cite United States v. Thirty Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269 (D.Nev.1986). In that case, the federal government sought forfeiture of certain eagles and eagle parts seized pursuant to the Eagle Protection A......
  • U.S. v. Hardman, No. 99-4210.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 5, 2002
    ...therefore must be seen as having a substantial effect on the exercise of religious belief. United States v. Thirty-Eight Golden Eagles, 649 F.Supp. 269, 276 (D.Nev.1986), aff'd 829 F.2d 41 (9th Cir.1987). Given this, we next consider whether the regulations governing the BGEPA and MBTA: (1)......
  • U.S. v. Friday, No. 06-8093.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 8, 2008
    ...United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997) (per curiam); United States v. Thirty Eight (38) Golden Eagles or Eagle Parts, 649 F.Supp. 269, 274 6. In Doctor John's, we left undecided whether a plaintiff making a facial challenge must go so far as to "establish that no set......
  • Request a trial to view additional results

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