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Tribe v. Ashe

United States District Court, D. Wyoming

March 12, 2015

NORTHERN ARAPAHO TRIBE, on its own behalf and on behalf of its members, and DARREL O'NEAL, Sr., Chairman, Northern Arapaho Business Council, in his official and individual capacities, Plaintiffs,
v.
DANIEL M. ASHE, Director, United States Fish and Wildlife Service, and MATT HOGAN, Assistant Regional Director, Region 6, Migratory Birds and State Programs, in their official capacities, Defendants

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For Northern Arapaho Tribe, on its own behalf and on behalf of its members, Plaintiff: Terri V Smith, LEAD ATTORNEY, Andrew W Baldwin, BALDWIN CROCKER & RUDD, Lander, WY.

For Northern Arapaho Business Council Chairman, in his official capacity, also known as Jim Shakespeare, also known as Darrell O'Neal, Darrell O'Neal, individually, Plaintiffs: Andrew W Baldwin, BALDWIN CROCKER & RUDD, Lander, WY.

For United States Fish & Wildlife Service Director, in his official capacity, also known as Daniel M Ashe, Defendant: Barbara M R Marvin, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Environmental & Natural Resources Division, Washington, DC; Carter Healy Coby Howell, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Wildlife & Marine Resources Section, c/o U.S. Attorney's Office, Portland, OR; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For Migratory Birds and State Programs Region 6 Assistant Regional Director, in his official capacity, also known as Matt Hogan, Defendant: Carter Healy Coby Howell, LEAD ATTORNEY, DEPARTMENT OF JUSTICE, Wildlife & Marine Resources Section, c/o U.S. Attorney's Office, Portland, OR; Nicholas Vassallo, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Cheyenne, WY.

For Eastern Shoshone Tribe, Amicus: Kimberly D Varilek, LEAD ATTORNEY, EASTERN SHOSHONE TRIBE, OFFICE OF ATTORNEY GENERAL, Fort Washakie, WY.

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OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT ON REMAINING CLAIMS AND OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' CROSS-MOTION FOR SUMMARY JUDGMENT ON PLAINTIFFS' REMAINING CLAIMS

Alan B. Johnson, United States District Judge.

Plaintiffs' Motion for Summary Judgment on Remaining Claims (Doc. No. 78), the Eastern Shoshone Tribe's Second Supplement to Eastern Shoshone Tribe Amicus Curiae Brief (Doc. No. 85), Respondents' Cross-Motion for Summary Judgment on Plaintiffs' Remaining Claims (Doc. No. 86), Plaintiffs' Opposition to Motion to Strike (Doc. No. 89), and Plaintiffs' Reply Brief (Doc. No. 90) have come before the Court for consideration. After reviewing the parties' submissions, the applicable law, and being fully advised, the Court finds that Plaintiffs' Motion for Summary Judgment on Remaining Claims should be GRANTED IN PART and DENIED IN PART and Defendants' Cross-Motion for Summary Judgment on Plaintiffs' Remaining Claims should be GRANTED IN PART and DENIED IN PART for the reasons stated below.

The Northern Arapaho Tribe (" NAT" ) and the Chairman of the Northern Arapaho Business Council,[1] Plaintiffs, filed an application for a permit with the U.S. Fish and Wildlife Service (" USFWS" or " Service" ), Defendants, to take bald eagles within the Wind River Reservation, pursuant to the Bald and Golden Eagle Protection Act (" BGEPA" ), 16 U.S.C. § 668--668d. While processing Plaintiffs' permit application, Defendants learned that the Eastern Shoshone Tribe (" EST" ) objected to the Northern Arapaho Tribe taking eagles within the Wind River Reservation based on cultural and religious grounds. Ultimately, Defendants decided to issue Plaintiffs a permit to take two bald eagles within Wyoming but outside of the Wind River Reservation because doing so " would allow the NAT to take a live eagle for religious purposes in a manner that would avoid . . . burdening the religious and cultural beliefs and practices of the EST." R. at 533.

In the present motion, Plaintiffs challenged Defendants' decision in the informal adjudication of their permit application under the Administrative Procedure Act (" APA" ) and the Free Exercise Clause of the First Amendment to the United States Constitution. The Court finds that Defendants' decision was not arbitrary or capricious under the APA. However, the Court finds that Defendants' decision violated the Free Exercise Clause of the First Amendment.

BACKGROUND

The Wind River Reservation[2] was created in 1868 when the Eastern Shoshone Tribe and the United States of America entered into a treaty whereby the Eastern

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Shoshone Tribe " relinquished to the United States a reservation . . . in Colorado, Utah, Idaho, and Wyoming, and accepted in exchange a reservation . . . in Wyoming." Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. United States, 299 U.S. 476, 485, 57 S.Ct. 244, 81 L.Ed. 360, 84 Ct.Cl. 641 (1937). Ten years later the United States placed the Northern Arapaho Tribe on the Wind River Reservation. Id. at 487. As the Tenth Circuit Court of Appeals has noted, " The Northern Arapaho share the Wind River reservation with the Shoshone tribe, a relationship that has not always been amicable." United States v. Friday, 525 F.3d 938, 943 (10th Cir. 2008).

In 2005, " Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, shot a bald eagle [within the Wind River Reservation] for use in the tribe's traditional religious ceremony, the Sun Dance." Id. at 942. The BGEPA prohibits the take of bald and golden eagles unless a permit has been issued. As defined in the Code of Federal Regulations, " Take means pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb." 50 C.F.R. § 22.3 (2014). Mr. Friday did not have a permit to take the bald eagle and was charged by the United States with violating the BGEPA. Id. at 942, 945. Mr. Friday moved to dismiss the charges under the Religious Freedom Restoration Act (" RFRA" ). Id. at 946. The district court granted the motion. Id.

The Tenth Circuit Court of Appeals reversed. The Tenth Circuit concluded that BGEPA " and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle." Id. at 942. Therefore, the court determined that BGEPA and its regulations do not violate RFRA. Id. The Tenth Circuit also noted the following:

We are not oblivious to the possibility that the government's permit process for the religious taking of eagles may be more accommodating on paper than it is in practice. If so-if the process is improperly restrictive, burdensome, unresponsive or slow-we trust that members of the tribe will not hesitate to vindicate their rights either through petition or in a proper suit. This, however, is not the occasion to consider those issues, because the defendant made no attempt to use the system.

Id. at 960.

In response to Friday, on October 7, 2009, Plaintiffs submitted an application for a permit with Defendants to take bald eagles within the Wind River Reservation pursuant to the BGEPA. R. at 224--40. Plaintiffs sought to take bald eagles for use in religious ceremonies. Id. In permit application section entitled " The State, county, and locality (or reservation) where the collection will occur," Plaintiffs provided " Wyoming, Freemont County, Wind River Indian Reservation." R at 226.

On January 26, 2010, the Attorney General of the Eastern Shoshone Tribe, Kimberly D. Varilek, wrote a letter to Defendants. The letter voiced the opposition of the Eastern Shoshone Tribe to the take of bald eagles by the Northern Arapaho Tribe within the Wind River Reservation. R. at 4--41.[3] The letter did not reference any religious or cultural objection on the part of the Eastern Shoshone Tribe. See id.

On September 28, 2010, Defendants sent a letter to Plaintiffs notifying them that their application was deficient and requested

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additional information. Id. at 211--14. On October 29, 2010, Plaintiffs sent Defendants a second permit application containing the additional requested information. Id. at 233--50. In permit application section entitled " The State, county, and locality (or reservation) where the collection will occur," Plaintiffs again provided " Wyoming, Freemont County, Wind River Indian Reservation." Id. at 236.

On December 17, 2010, Defendants notified Plaintiffs that before they could issue a permit, they were required by Executive Order 13175 to consult with the Eastern Shoshone Tribe. Id. at 356. On June 8, 2011, Defendants met with the Joint Business Council, consisting of members of both tribes, to discuss the permit application. The minutes of that meeting are not contained within the administrative record.

On November 7, 2011, over two years after Plaintiffs submitted their original permit application, Plaintiffs commenced the present action by filing a Complaint. Doc. No. 1. Plaintiffs alleged that " Defendants have failed or refused to issue a federal permit to allow the taking of an eagle by members of the Northern Arapaho Tribe for traditional Native American religious purposes." Id.

On December 6, 2011, A.G. Varilek sent Defendants a second letter. R. at 1042--48. The letter contains two opaque references to the Eastern Shoshone Tribe's cultural or religious objection to the Northern Arapahoe Tribe taking eagles within the Wind River Reservation. See id. First, the letter states that " part of inherent tribal sovereignty is a Tribe enacting and consent [sic] laws that will not only govern their tribal members and tribal lands, but should protect all aspects of the Tribe and tribal members' interests, activities, cultural and religious practices." Id. at 1047. Second, the letter concludes by stating, " NAT demands respect for its cultural and tribal practices, but must also give respect to the Eastern Shoshone Tribe's tribal and cultural practices . . . ." Id. at 1048.

On December 13, 2011, Defendants met with the Eastern Shoshone Business Council. During that meeting, " the Eastern Shoshone Business Council repeated its position that it opposed the take of eagles on the Wind River Reservation because bald eagles are sacred to the EST." Id. at 530. Following that meeting, Defendants determined the consultation with the Eastern Shoshone Tribe required by Executive Order 13175 was complete. Id.

On December 16, 2011, Wade LeBeau, an enrolled member of the Eastern Shoshone Tribe sent a letter to Defendants. Id. at 381--95. Mr. LeBeau stated that " [a]llowing an enemy tribe the right to kill our sacred eagles goes against our traditions, values, morals, heritage, rights, freedoms, and the agreement of the United States." Id. at 382. The letter further contends that the Eastern Shoshone Tribe uses the eagle repository " because we are AGAINST killing sacred animals." Id. at 384. Mr. LeBeau also stated that if the Northern Arapaho Tribe were allowed to take eagles on the Wind River Reservation

then the USFWS is imposing, violating, disgracing, infringing, etc. on THOUSANDS of Shoshone people's rights, culture, traditions, beliefs, etc. It is wrong to take Shoshone people's rights away to give them to a tribe that does not belong here, does not have a treaty to be here, does not have sovereign rights here, and did not reside here for the THOUSANDS of years prior to 1878.

Id.

On January 11, 2012, Defendants filed a Motion for Stay of Proceedings or in the Alternative Extension of Time to File the Administrative Record. Doc. No. 8. Defendants noted that before they could issue the permit, they were required to consult with the Eastern Shoshone Tribe. Id. Defendants

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asserted in the motion that the consultation with the Eastern Shoshone Tribe was complete, and they intended " to issue a decision on Plaintiffs' application for 'take' of eagles" by March 12, 2012. Id. Defendants also requested a sixty day stay to file the administrative record. The Court granted the motion. Doc. No. 13.

On March 9, 2012, Defendants issued a permit that allowed Plaintiffs to take up to two bald eagles between March 9, 2012 and February 28, 2013, but the permit limited the location where the take could occur to " Wyoming, outside exterior boundaries of Wind River Reservation." R. at 671. In the Findings for Northern Arapahoe Tribe's Permit to Take Bald Eagles for Religious Purposes (" Permit Findings " ), Defendants first examined whether the proposed take was compatible with the preservation of eagles. Defendants found that the " proposed take of up to two bald eagles for Indian religious use is within the annual take threshold established by the Service for the Northern Rocky Mountains region." R. at 531. Next, Defendants considered whether the proposed take was for a bona fide religious purpose. Ultimately, Defendants found that " the take of bald eagles by the NAT as proposed in its application is for bona fide religious purposes." Id.

Finally, Defendants determined they had to examine " whether the EST's religious beliefs were infringed by granting the permit application" because " the Service cannot make a permit decision without implicating the religious practices of both the NAT and the EST." R. at 532. Defendants found that " both Tribes share deeply held, but contrary, beliefs about bald eagles and take." R. at 532. In making the permit decision, Defendant's relied on the general interest in fostering and protecting the culture and religion of federally-recognized Indian tribes as expressed by the Tenth Circuit--" [I]n furthering its interest in protecting Native American religions and cultures, the Service must consider two competing interests: protecting NAT religion and culture while at the same time protecting EST religion and culture." Id. Defendants examined the possibility of granting the Northern Arapaho Tribe a permit that excluded the Wind River Reservation from the area where the take could occur. Defendants noted that such a restriction " would allow the NAT to take a live eagle for religious purposes in a manner that would avoid . . . burdening the religious and cultural beliefs and practices of the EST." R. at 533. Ultimately, Defendants concluded

that approving a permit for the NAT to take up to two bald eagles outside the boundaries of the Wind River Reservation is the least restrictive means of achieving its compelling governmental interests in protecting eagle populations and in protecting the religions and cultures of both the NAT and the EST.

Id. at 533.

On March 13, 2012, Defendants filed the administrative record with this Court. Doc. No. 16. On March 30, 2012, Plaintiffs filed an Amended Complaint. Doc. No. 18. In the Amended Complaint, Plaintiffs alleged that Defendants denied their permit application by excluding the Wind River Reservation from the area where the take could occur. Plaintiffs claimed that Defendants' refusal to allow eagle take within the Wind River Reservation violated the Religious Freedom Restoration Act (" RFRA" ), the Free Exercise Clause of the First Amendment, and the Administrative Procedure Act (" APA" ). Id. On April 13, 2013, Defendants filed a second notice of filing the administrative record. Doc. No. 19. On April 27, 2012, Defendants filed an Answer to Plaintiffs' Amended Complaint. Doc. No. 22.

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On May 2, 2012, the Eastern Shoshone Tribe moved the Court to file an amicus curiae brief. Doc. No. 23. The Court granted the Eastern Shoshone Tribe's motion. Doc. No. 26.

On May 31, 2013, Plaintiffs filed a motion on their RFRA claim alone. Doc. No. 29. Defendants filed a response. Doc. No. 34. The Eastern Shoshone Tribe filed an amicus curiae brief. Doc. No. 36. Ultimately, the Court denied Plaintiffs' motion and found in favor of Defendants. Doc. No. 45. This Court concluded that Defendants " did not violate RFRA because it advanced and balanced its compelling interests via the least restrictive means." Id.

Plaintiffs filed a motion for reconsideration. Doc. No. 46. Both Defendants and the Eastern Shoshone Tribe opposed the motion. Docs. No. 47, 48. The Court denied Plaintiffs' motion for reconsideration. Doc. No. 49.

On February 11, 2013, Plaintiffs filed a motion seeking to amend their Amended Complaint by adding an Establishment Clause claim. Doc. No. 59. Defendants opposed the motion. Doc. No. 60. The Court found Plaintiffs' motion untimely and denied the motion. Doc. No. 62.

On March 22, 2013, the parties filed a Joint Stipulation for Stay of Proceedings. Doc. No. 65. When the first permit was issued, if Plaintiffs were to take an eagle pursuant to the permit within Wyoming but outside of the Wind River Reservation, then Plaintiffs would have violated state law absent a separate exemption from the State of Wyoming. See Wyo. Stat. Ann. § 23-3-101 (2007) (amended 2013). In February 2013, the Wyoming State Legislature amended Wyo. Stat. Ann. § 23-3-101 (2013) to provide a new exception to the prohibition on taking eagles within Wyoming: " Any person who takes an eagle is guilty of a high misdemeanor . . . unless the taking is authorized by federal law or commission rules adopted in compliance with federal law." That same month, Defendants also issued a new permit for the Northern Arapaho Tribe to take up to two eagles during the period from March 1, 2013 to February 28, 2014. The second permit contained the same location restriction as the first. As a result, the parties requested a sixty day stay " to allow the parties to consider the possible effects of the recently enacted amendment to W.S. § 23-3-101 on the current permit and on Plaintiffs' remaining claims." Doc. No. 65.

The Court granted the stipulated motion to stay the proceedings. Doc. No. 66. On May 24, 2013, the parties filed a Joint Stipulation and Motion to Extend Stay of Proceedings for essentially the same reasons they filed the first request but stated that more time was required. Doc. No. 67. The Court granted the second stipulated motion to stay the proceedings. Doc. No. 68. On June 26, 2013, Plaintiffs filed an Unopposed Motion to Extend Stay of Proceedings requesting an additional thirty days. Doc. No. 69. The Court granted the third unopposed motion. Doc. No. 70.

On August 1, 2013, the parties filed a Joint Status Report to notify the Court " that they have been communicating with each other regarding anticipated further proceedings and intend to submit either a joint proposal, or separate proposals." Doc. No. 71. On August 16, 2013, the parties filed a Joint Proposed Briefing Schedule for Plaintiffs' Remaining Claims notifying the Court that further action of the Court was required to resolve the dispute. Doc. No. 72. The Court entered an order adopting the proposed briefing schedule. Doc. No. 73.

On August 28, 2013, Defendants filed a supplement to the administrative record. Docs. No. 74, 75. The supplemental administrative record concerned the second permit issued by Defendants. On September 30, 2013,

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Defendants filed a supplement to the supplemented administrative record. Doc. No. 75. In that supplement, Defendants included, among other documents, the Findings for Northern Arapaho Tribe's Renewal Permit to Take Two Bald Eagles for Religious Purposes (" Renewal Permit Findings " ) regarding Plaintiffs' second application for a permit. R. at 2278--94. In the Renewal Permit Findings, Defendants stated the following with respect to Plaintiffs' first permit application: " Based on discussions during consultation with the EST, and as confirmed by the EST Attorney General in court proceedings, USFWS finds that the EST has a sincere religious and cultural belief in protecting eagles. Allowing take on the Wind River Reservation would burden the EST's religious and cultural beliefs." R. at 2280.

On October 14, 2014, Plaintiffs filed a Motion for Summary Judgment on Remaining Claims and an accompanying memorandum of law. Docs. No. 78, 79. On November 15, 2013, Defendants filed their Cross-Motion for Summary Judgment on Plaintiffs' Remaining Claims and accompanying memorandum. Docs. No. 86, 87. On December 6, 2013, Plaintiffs filed an Opposition to Motion to Strike and a Reply Brief Doc. No. 89, 90.

STANDARD OF REVIEW

In the present motion, Plaintiffs raised two distinct issues with two separate standards of review. The Court is not unaware of the fact that the procedural posture of this case creates some difficulty. However, that difficulty can be overcome by considering the two distinct issues in the proper context and under the appropriate standards of review. See Southern Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 823 n.4 (10th Cir. 2000) (citing Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir. 1994) (" Here, the parties' use of, and the district court's acceptance of, the summary judgment procedures resulted in no harm to either party. The district court's review of the [agency's] decision was fundamentally consistent with the review procedures established by the Tenth Circuit." ).

When reviewing Defendants' final agency action, this Court must act as a court of appeal.[4] See Id. at 1579 (" Reviews of agency action in the district courts must be processed as appeals " ). The APA authorizes judicial review only of final agency action. Kobach v. U.S. Election Assistance Com'n, 772 F.3d 1183, 1190 (2014) (citing Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004)). " To be final, agency action must mark the consummation of the agency's decisionmaking process, and must either determine rights or obligations or occasion legal consequences." Id. (quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 124 S.Ct. 983, 157 L.Ed.2d 967 (2004)) (internal quotation marks omitted).

A reviewing court must first determine whether the administrative process was adjudication or rulemaking. " Adjudication is a determination of individual rights or duties" and " [r]ulemaking is a determination of general applicability and predominantly prospective effect." 32 Fed. Prac. & Proc. Judicial Review § 8122 (1st ed. 2014). A reviewing court must also determine whether the administrative process was formal or informal. The basic distinction between formal and informal

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adjudications lies in the use of " formal, trial-like procedures [or] procedures which deviate significantly from the methods of trial." Id. § 8136.

I. Arbitrary-and-Capricious Standard of Review

When reviewing an informal adjudication under the APA, a court must determine " (1) whether the agency acted within the scope of its authority, (2) whether the agency complied with prescribed procedures, and (3) whether the action is otherwise arbitrary, capricious or an abuse of discretion." Olenhouse, 42 F.3d at 1574. " This standard of review is 'very deferential' to the agency's determination, and a presumption of validity attaches to the agency action such that the burden of proof rests with the party challenging it." Kobach v. U.S. Election Assistance Com'n, 772 F.3d 1183, 1197 (10th Cir. 2014) (citing W. Watersheds Project v. Bureau of Land Mgmt., 721 F.3d 1264, 1273 (10th Cir. ...


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