US v. Lundquist

Citation932 F. Supp. 1237
Decision Date30 July 1996
Docket NumberNo. CR 95-350-JO.,CR 95-350-JO.
PartiesUNITED STATES of America, Plaintiff, v. David William LUNDQUIST, Defendant.
CourtU.S. District Court — District of Oregon

Kristine Olsen, U.S. Attorney, District of Oregon, Frank Noonan, Assistant U.S. Attorney, Portland, OR, for Plaintiff.

Steven Wax, Federal Public Defender, District of Oregon, Michael Levine, Assistant Federal Public Defender, Portland, OR, for Defendant.

ORDER

ROBERT E. JONES, District Judge.

Defendant David William Lundquist moves to dismiss the two-count information charging him with violations of the Bald and Golden Eagle Protection Act ("BGEPA"), 16 U.S.C. § 668. Lundquist's position is that under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb, the BGEPA limitation on possession of eagle parts violates his right to free exercise of religion. Lundquist also asserts that the BGEPA is invalid under the Commerce Clause of the United States Constitution because the activity in question, possession of eagle parts, does not substantially affect interstate commerce. Finally, Lundquist asserts that the criminalization of possession of bird parts is a violation of his privacy rights.

PROCEDURAL BACKGROUND

Lundquist has been charged with two counts of possession of protected bird feathers and parts, in violation of 16 U.S.C. § 668(a). The feathers and parts were found by law enforcement agents on August 26, 1992, while the agents were executing a search warrant that called for seizure of evidence relating to other crimes of which defendant was suspected. The two count information supersedes an original eleven-count information that the government dismissed.

FACTUAL BACKGROUND

Lundquist is an American citizen who practices Native American religion as part of what he asserts to be his deeply and sincerely held religious beliefs. He is not an enrolled member of a legally recognized Indian tribe, though he claims Indian descent via his grandfather, who also was not enrolled, but whose parents were part Cherokee and part Lakota Sioux.

In August of 1992, Lundquist was charged with possession of golden and bald eagle parts and feathers in violation of the BGEPA. Lundquist received a golden eagle head as a gift from an individual in Arizona, and received a feather as a gift from a Native American following participation in an Indian religious rite. Lundquist regards these eagle parts as sacred religious symbols, which are to be preserved and revered. Lundquist testified at a hearing on May 24, 1996, that the use of eagle feathers and parts is necessary in performing the specific religious practices in which he engages as part of his religious belief.

There is no evidence to suggest that Lundquist possessed the bird parts following an illegal taking, or that he was trafficking in the bird parts.

STATUTORY FRAMEWORK

The BGEPA prohibits, among other things, taking or possessing bald or golden eagles without a permit. 16 U.S.C. § 668(a) provides, in relevant part, that:

Whoever, within the United States or any place subject to the jurisdiction thereof, 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 * * * 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.

A properly enrolled Indian may receive golden or bald eagle carcasses, parts or feathers through a permit system run by the U.S. Fish and Wildlife Service. The permit application requires an Indian to list (1) the species and number of eagles requested; (2) where the eagle will come from; (3) the name of tribe the applicant belongs to; (4) the tribal religious ceremony; (5) certification from the Bureau of Indian Affairs ("BIA") of Indian status; and (6) certification from the applicant's religious group that the applicant is authorized to participate in ceremonies. 50 C.F.R. § 22.22.

Indian status is accorded only those who meet the specific requirements for enrollment and whose names appear on a particular roll of Indians, which is approved by the Secretary of the Interior. The qualifications and the deadline for filing application forms for enrollment are laid out in 25 C.F.R. § 61.4.

RFRA was enacted by Congress in 1993 in response to the Supreme Court decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which held that where a statute substantially burdened a person's exercise of religion, the statute nonetheless would be found constitutional if it was both neutral and generally applicable. Smith, 494 U.S. at 882-83, 110 S.Ct. at 1602. Congress' intent was to restore the law to accord with pre-Smith jurisprudence so that:

Government may substantially burden a person's exercise of religion only if it demonstrates 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).

DISCUSSION
A. Free Exercise of Religion Claim

Lundquist contends that in light of the protection afforded his religious practices under RFRA, the BGEPA's prohibition of possession of eagle parts is an unconstitutional violation of his First Amendment right to free expression of religion.

The determination of whether the BGEPA violates Lundquist's rights under RFRA requires a three-part analysis. Callahan v. Woods, 736 F.2d 1269, 1273 (9th Cir.1984), citing Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), and Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). First, Lundquist must show that the regulation of eagle feathers substantially interferes with his free exercise of religious beliefs. The government must then show that the regulation serves a compelling government interest. Third, and finally, the government must show that the government objectives cannot be advanced through use of a regulation that is less intrusive of Lundquist's religious practices, and that refusing his exemption is, therefore, the least restrictive means of preserving eagle populations.

1. Burden on Lundquist's Free Exercise of Religion

The government argues that Lundquist does not have standing because Lundquist's religious practices have not been defined sufficiently for the court to determine whether his religious practices have been substantially burdened. Specifically, the government contends that Lundquist has not presented credible evidence of his sincerely held religious beliefs; that he has not identified the specific religious practices in which he utilizes eagle feathers and parts; and that he has not alleged that BGEPA has substantially burdened his religious practices.

Lundquist clearly demonstrated at his hearing the sincerity of his religious beliefs, see Jolly v. Coughlin, 76 F.3d 468, 476 (2nd Cir.1996), citing Patrick v. LeFevre, 745 F.2d 153 (2nd Cir.1984), and described the role of eagle parts both in his faith and in his religious practices. It is not necessary that Lundquist show that his religious practices are shared by others. See Thomas v. Review Bd. of Indiana Empl. Sec. Div., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1430-31, 67 L.Ed.2d 624 (1981).

Lundquist must show, however, that the burdened religious practices are central to his religious beliefs, and that his inability to practice them is more than an inconvenience to his right to free exercise. In other words, his inability to engage in the religious practice must amount to a substantial burden and an "interference with a tenet or belief that is central to religious doctrine." Bryant v. Gomez, 46 F.3d 948, 949 (9th Cir.1990), citing Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987).

Other courts have concluded that the status of the eagle feather in Indian religion is similar to that of the cross in the Christian faith, and the government has not persuaded me to disagree with that conclusion. See United States v. Thirty-Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269, 276, aff'd, 829 F.2d 41 (9th Cir.1987). Having accepted the sincerity of Lundquist's adherence to Native American religious beliefs, I conclude that eagle parts occupy a central position in the practice of Lundquist's religion.1

Lundquist's particular use of the feather during his prayer as part of a "sacred medicine bundle" or as a talisman during his vision quests, supports this conclusion, and it is not necessary, therefore, to rely on the broad statement that "any scheme which limits the access of the faithful to their talisman must be seen as having a profound effect on the exercise of religious belief." Thirty-Eight Golden Eagles, 649 F.Supp. at 276. The District of Oregon has rejected that broad test as dicta, and requires instead that "the particular facts of each case must be examined in the light of the BGEPA." United States v. Jim, 888 F.Supp. 1058, 1062 (D.Or.1995). The particular facts of this case convincingly show that Lundquist's inability to possess eagle parts under the BGEPA creates more than a mere inconvenience to his right of free exercise, but constitutes a substantial burden.

2. Compelling Government Interest in Protecting Eagles

Lundquist contends that the government cannot establish a compelling interest that outweighs his constitutional right to free exercise of religion.

The proper test in this case is whether there is "a compelling state interest which justifies the burden imposed upon the religious belief." Thirty-Eight Golden Eagles, 649 F.Supp. at 275. In determining whether the government has a compelling interest...

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