FILED
NOT FOR PUBLICATION MAY 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LA CUNA DE AZTLAN SACRED SITES No. 13-56799
PROTECTION CIRCLE ADVISORY
COMMITTEE; CALIFORNIANS FOR D.C. No.
RENEWABLE ENERGY; ALFREDO 2:11-cv-00400-DMG-DTB
ACOSTA FIGUEROA; PHILLIP SMITH;
PATRICIA FIGUEROA; RONALD VAN
FLEET; CATHERINE OHRIN-GREIPP; MEMORANDUM*
RUDY MARTINEZ MACIAS; GILBERT
LEIVAS,
Plaintiffs - Appellants,
v.
UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted April 10, 2015
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, BENAVIDES,** and CLIFTON, Circuit Judges.
Plaintiffs-Appellants La Cuna De Aztlan Sacred Sites Protection Circle
Advisory Committee, CAlifornians for Renewable Energy, Alfredo Acosta
Figueroa, Patricia Figueroa, Phillip Smith, Ronald Van Fleet, Catherine Ohrin-
Greipp, Rudy Martinez Macias (now deceased), and Gilbert Leivas brought this
suit against the U.S. Department of the Interior, as well as Solar Partners I, LLC;
Solar Partners II, LLC; Solar Partners VIII, LLC; and BrightSource Energy, Inc.
The instant appeal arises from a denial of Plaintiffs’ motion for summary judgment
and grant of Defendants’ motion for summary judgment. We have jurisdiction
under 28 U.S.C. § 1291. We review a grant of summary judgment de novo and we
“determine whether, viewing the evidence in the light most favorable to the
nonmoving party, there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.” Lopez v. Smith, 203
F.3d 1122, 1131 (9th Cir. 2000); see FED. R. CIV. P. 56(a).
While the initial suit included numerous claims, the only claim on appeal is
under the Religious Freedom Restoration Act (“RFRA”). To establish a prima
facie RFRA claim, a plaintiff must allege two elements: “First, the activities the
plaintiff claims are burdened by the government action must be an ‘exercise of
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
religion.’ . . . Second, the government action must ‘substantially burden’ the
plaintiff’s exercise of religion.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,
1068 (9th Cir. 2008) (en banc) (internal citation omitted). This appeal hinges on
the second element, and specifically whether denial of Plaintiffs’ access to the
Ivanpah Solar Electric Generating System (“Ivanpah Project”) site imposes a
substantial burden on the exercise of religion within the meaning of RFRA. If a
prima facie claim has been established, the “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). The district court did not rule on the compelling interest
part of the test, and we decline to do so as well. This appeal hinges on whether
Plaintiffs have met the substantial burden requirement.
We conclude that the record, which includes declarations submitted by the
Plaintiffs that provide little more than conclusory statements and which have not
shown where the alleged sacred sites are located at the Ivanpah Project site, is
insufficient to support Plaintiffs’ claim that the loss of access to the limited area
taken by the Ivanpah Project imposes a substantial burden. Viewing the evidence
in the light most favorable to the Plaintiffs, the Plaintiffs have not shown that they
are either “forced to choose between following the tenets of their religion and
receiving a governmental benefit,” or “coerced to act contrary to their religious
beliefs by the threat of civil or criminal sanctions” as this court requires to
establish a substantial burden under RFRA. Navajo Nation, 535 F.3d at 1069-70.
AFFIRMED.