United States v. Hardman

HARTZ, Circuit Judge,

concurring:

I join Chief Judge Tacha’s opinion for the court. I write separately to emphasize what we are not deciding.

The issue raised by these appeals is whether the claimants were entitled under RFRA to permits to possess the eagle parts they had obtained. Each claimant has challenged the regulatory scheme created by the general ban on possession of eagle parts imposed by 16 U.S.C. §§ 668 and 703 and the exceptions to the general ban authorized by 16 U.S.C. §§ 668a and 704.

The issue not raised by these appeals is whether the procedures for distributing eagle parts from the National Eagle Repository are contrary to RFRA. These procedures had no effect on the conduct of the claimants before us. The records in these cases indicate that the claimants obtained their eagle parts as gifts from Native Americans. Nothing suggests that the unavailability of eagle parts from the Repository caused any of the claimants to search actively for an alternate source, causing the claimant to acquire the parts in the manner that he did. Cf. United States v. Oliver, 265 F.3d 588 (8th Cir.*11412001) (per curiam) (defendant claimed that delays in obtaining eagle parts from the Repository led him to obtain the parts illegally). Hardman sought a permit from a Utah agency to possess his feathers; he did not seek Repository feathers. As I understand the arguments of the claimants on appeal, they are simply asserting that the government has no compelling interest in preventing them from continuing to possess their eagle parts for religious purposes; in other words, they should be entitled to permits to possess the parts. They have not argued, and, on the facts of these cases, they have no reason to argue, that they are entitled to eagle parts acquired by the Repository.

It is important to state what we are not deciding because the briefs and arguments have expressed concern about the possible impact of our decision on the ability of tribes to obtain eagle parts for religious purposes from the Repository. That impact will be negligible, if not nonexistent. As I will now attempt to explain, the issues on remand in the Hardman and Wilgus cases are quite different from the issues that would have to be decided on a RFRA challenge to the practices of the Repository.

1. Issues on Remand

As Chief Judge Tacha’s opinion states, the protection of golden eagles and bald eagles is a “compelling governmental interest” within the meaning of the term in RFRA. The government is entitled to take steps necessary to prevent humans from killing these birds. It is my understanding that under the present operation of the regulations, no killing is permitted for any reason, religious or otherwise. For example, if eagles are preying on livestock, permits are not issued to kill the eagles but only to capture them and then provide them to falconers or Indian tribes.

The chief question under RFRA is whether the governmental controls on possession of eagle parts are more restrictive than necessary to accomplish the purpose of protecting eagles. Or, to use the statutory language, are the governmental controls “the least restrictive means of furthering [the] compelling governmental interest” of protecting eagles? 42 U.S.C. § 2000bb-1(b)(2). In the context of the present cases, the matter to be resolved is whether protecting eagles requires a ban on possession of eagle parts by those who need the parts for religious worship but are not members of recognized tribes. (I shall refer to such persons as “worshippers.”) In my view, the government’s practice of permitting members of recognized tribes to possess eagle parts is largely irrelevant to the analysis. That practice is certainly relevant to an Establishment Clause or equal protection argument, but we do not address those issues in this appeal.

The government’s burden would be as follows: First, the government must establish the necessity of a general ban on possession of eagle parts, rather than just a prohibition on killing or capturing eagles. I assume that the government will be able to satisfy that burden by showing that it is ordinarily impossible for an inspection to determine whether an eagle feather or other eagle part has come from a bird that died naturally or as a result of illegal hunting (by shooting, poisoning, trapping, etc.).

The government must then show that any exceptions beyond the ones already recognized would be unworkable. This strikes me as a more difficult obstacle for the government. It may be possible for a possessor of eagle parts to provide convincing proof that the parts came from a legitimate source. For example, a tribal religious leader who obtains eagle feathers *1142from the Repository can readily establish the propriety of possessing those feathers. Or if (as may well be the case with Hard-man and Wilgus) the possessor can convincingly prove that he obtained eagle feathers from a source that acquired the feathers from the Repository or from eagles that died before the effective date of the statutory protection for eagles,1 then protection of eagles would not justify prohibiting the possession.

A ban on possession of eagle parts is not the least restrictive means of furthering the compelling interest in protecting eagles if it is feasible to allow worshippers to present convincing proof of the legitimate source of the parts they possess. The government may wish to ease its burden of reviewing evidence in such cases by instituting a scheme to keep track of lawful eagle parts (say, by registration); but for the present, the government would have the burden under RFRA to show that there is no satisfactory means of reviewing evidence of the provenance of eagle parts.

If the government fails to establish that it would be unworkable to recognize an exception for worshippers who can trace their eagle parts to a lawful source, the government would still have a fallback position. At the outset of this discussion I stated that the government’s practice of authorizing possession of eagle parts by recognized tribes is largely irrelevant. But there is one respect in which the interests of recognized tribes may have an impact. As noted in Chief Judge Tacha’s opinion, the federal government has compelling interests in meeting its trust and treaty obligations to Indian tribes and in preserving Native American culture. If the government is able to prove that it cannot properly serve those interests without seizing privately possessed eagle parts (regardless of whether the possessor can establish a proper source) and distributing them to recognized tribes, then it may have satisfied RFRA’s least-restrictive-means requirement.

These issues to be resolved on remand in the Hardman and Wilgus cases are distinct from the issue whether RFRA invalidates the government’s scheme for distributing dead eagles and eagle parts from the Repository. The latter issue raises quite different legal questions from those briefed and argued in this court.

2. RFRA and the National Eagle Repository

Recognized tribes may now obtain golden eagle and bald eagle parts for religious purposes from the National Eagle Repository in Commerce City, Colorado. The Repository is not mentioned in the United States Code or the Code of Federal Regulations. Its operations are not part of the statutory or regulatory scheme at issue in the cases before us, although I presume that the Repository would provide feathers only to those with proper permits. According to the testimony at the Saenz hearing, the sources for the Repository include zoos and carcasses found by field biologists, state fish and game officials, and federal employees. A 1994 Presidential Memorandum “direet[ed] each agency responsible for managing Federal lands to diligently and expeditiously recover salvageable eagles found on lands under their jurisdiction and ensure that the eagles are promptly shipped to the National Eagle Repository.” 59 Fed.Reg. 22953. I as*1143sume that eagle parts seized from unlawful possessors are also delivered to the Repository.

Before examining how RFRA may apply to the operation of the Repository, it is important to recognize the peculiar relationship of the statute to Supreme Court case law on the Free Exercise Clause. As noted by the Chief Judge’s opinion, RFRA was a congressional reaction to Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). The expressed purposes of RFRA are:

(1) 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; and
(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

42 U.S.C. § 2000bb(b). One can thus conclude that pre-Smith Supreme Court opinions that purport to be consistent with Sherbert and Yoder are persuasive authority with respect to the interpretation of RFRA.

The first question that arises with respect to the' application of RFRA to the operation of the Repository is whether that operation imposes a burden on the exercise of religion. -The general rule expressed in RFRA is that “Government shall not substantially burden a person’s exercise of religion.” 42 U.S.C. § 2000bb-1(a). “[E]xercise of religion” is defined in the statute as “the exercise of religion under the First Amendment to the Constitution.” 42 U.S.C. § 2000bb-2(4).

One may ask how the distribution of the Repository’s eagle parts to Indian tribes (or to anyone else, for that matter) burdens someone else’s exercise of religion. Some illumination may be found in the Supreme Court’s observation that “ ‘the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.’ ” Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (quoting Sherbert, 374 U.S. at 412, 83 S.Ct. 1790 (Douglas, J., concurring)). Because the operation of the Repository does not do anything to a person who might wish to possess some of the Repository’s inventory, the inability of the person to exact eagle parts from the Repository would appear to raise no Free Exercise issue.

In Lyng the Supreme Court upheld against a Free Exercise challenge the government’s building of a road and harvesting of timber on public land even though these actions “could have devastating effects on traditional Indian religious practices.” Id. at 451, 108 S.Ct. 1319. The Lyng decision predates Employment Division v. Smith. Although Lyng has been criticized, see, e.g., Ira C. Lupu, Where Rights Begin: The Problem of Burdens on the Free Exercise of Religion, 102 Harv. L.Rev. 933 (1989), RFRA does not purport to affect the law set forth in that opinion. See S.Rep. No. 103-111 (1993), reprinted in U.S.C.C.A.N. 1892, 1898 (“while the committee expresses neither approval nor disapproval of that case law, pre-Smith case law makes it clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources [citing Lyng and Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) ]”). Given Lyng’s impact on the religious practices of Native American tribes, it^yould be ironic if the principle on which' that decision is based were not available to the tribes in defending the present system of distributing eagle parts from the Reposito*1144ry. Tribal support for the government’s position in these cases is expressed in the amicus curiae briefs filed by the Hopi Tribe and the Jiearilla Apache Nation in this consolidated appeal and in the Ute Tribe’s amicus curiae brief in the original Hardman appeal.

If RFRA does not limit the government’s power to control its own property, the government’s, distribution of eagle parts from the Repository is not in itself constrained by RFRA. Certainly, if there were no government restrictions on private possession of eagle feathers, I do not think it could be argued that a worshipper would have a claim under RFRA on the Repository’s store of feathers.2 (This is not to foreclose an argument that distributing the Repository’s feathers only to recognized tribes would constitute an establishment of religion or would be a denial of equal protection of the laws.)

Of course, my assumption in the prior paragraph assumes away the difficulty in this case. Contrary to that assumption, the government prohibits private possession of eagle parts. Nevertheless, I doubt that even the juxtaposition of (1) a government ban on possession and (2) a government repository of eagle parts creates a claim that failure to share parts from the Repository with worshippers burdens their exercise of religion, although perhaps a worshipper could claim that the Repository burdens the worshipper’s exercise of religion if the Repository acquired eagle parts taken from the worshipper or taken from lands on which the worshipper has exclusive hunting rights.

Yet even if the operation of the Repository does not burden a worshipper’s exercise of religion, RFRA may still have an impact on the Repository. The prohibition on possession of eagle parts is undoubtedly a burden on religious exercise. RFRA requires that any such burden must be “the least restrictive means of furthering [the] compelling governmental interest” that justifies the burden. 42 U.S.C. § 2000bb-1(b)(2). Thus, the second question that arises in evaluating RFRA’s impact on the Repository is whether access by a worshipper to the Repository’s eagle parts is necessary- to satisfy RFRA’s requirement that the government employ the least restrictive means in furthering its compelling interests.

There is very little guidance available on the meaning of “least restrictive means” in RFRA. The phrase is not defined in the statute or expounded upon in the Committee reports. The Supreme Court’s Free Exercise cases do not discuss the meaning. See City of Boerne v. Flores, 521 U.S. 507, 535, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (asserting that pre-Smith jurisprudence did not use a least-restrictive-means requirement). But see Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (stating least-restrictive-means requirement in dictum). After analyzing RFRA’s compelling-governmental-interest and least-restrictive-means requirements, one commentary concluded that these provisions are “ambiguous in very basic ways,” leading to “a dizzying collection of possibilities about [their] meaning.” Ira C. Lupu, Of Time and the RFRA: A Lawyer’s Guide to the Religious Freedom Restoration Act, 56 Mont. L.Rev. 171, 197 (1995). Another article devotes its atten*1145tion primarily to other language in RFRA, see Laycock & Thomas, supra, at 221, and limits its discussion of “least restrictive means” to saying .that the government must show “that an exception for religious claimants would defeat [the government’s] compelling interest.” Id. at 222; cf. id. at 224 (quoting similar tests expressed in Supreme Court opinions).

Perhaps RFRA’s least-restrictive-means test is intended only as a paraphrase of the test stated in one of the two Supreme Court opinions embraced in RFRA’s statement of purpose. In Sherbert v. Verner, the Court wrote that the government must “demonstrate that no alternative forms of regulation would [accomplish the governmental interest] without infringing First Amendment rights.” 374 U.S. at 407, 83 S.Ct. 1790. In other words, “least restrictive means,” as one would naturally interpret the phrase, signifies that the imposition by the government on religious worship must be the minimal imposition to accomplish the government’s compelling ends. This appears to be the view expressed in Laycock & Thomas, supra, at 222.

To hold that the least-restrictive-means requirement provides worshippers with a right of access to Repository eagle parts would be a substantial expansion beyond this interpretation of the requirement. There is a qualitative difference between (1) requiring the government to impose as little burden as possible and (2) requiring the government to expend resources to offset the loss caused by the necessary government imposition. One difficulty with an offset requirement is determining how far the government must go in providing an offset. With respect to a claim for access to Repository eagle parts, one can ask whether there is any limiting principle applicable to the claim, short of requiring an immediate grant of requested eagle parts to a worshipper. How much can be required of the government to supply eagle parts to worshippers who are prohibited from obtaining them on their own? Was the 1994 Presidential Memorandum (which directed an all-out effort to obtain eagle parts) compelled by RFRA? Does the government have an obligation under RFRA to obtain eagle parts from foreign sources? Or, reversing directions, does the government have any obligation at all under RFRA to maintain a repository or to require its agents to look for eagle carcasses on government land? Retreating to a middle ground, does one just take as given the quantity of eagle parts that the government has on hand and then require that the quantity, whatever it is, be available, in part, to worshippers? As for this last possibility, RFRA’s least-restrictive-means requirement would create a peculiar “right” if the government has total discretion regarding how much to honor it by deciding how much, if any, effort to put into a repository.

No Supreme Court decision requires the government to expend resources to offset (as opposed to reduce) a permissible burden on an individual’s exercise of religion. For example, when the Supreme Court upheld Sunday closing laws against a Free Exercise challenge, despite the financial burden on business owners who close shop on Saturday to observe their Sabbath, Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961), there was no discussion of whether the government must pay such persons to offset the income lost by having to close two days a week when competitors close shop only on Sunday.

Some Supreme Court Free Exercise cases that might, at first glance, appear to require a government offset are the unemployment compensation cases, such as Sherbert. In those cases the government has been required to' pay unemployment *1146compensation to one who loses or quits a job for religious reasons, such as refusal to work on the Sabbath. But such compensation is not an offset to a burden imposed on the recipient by the government; the government did not fire the recipient or order the recipient to work on the Sabbath. Rather, the Supreme Court has required compensation because to refuse to pay would be the equivalent of imposing a fine on the recipient for obeying a religious command. Sherbert, 374 U.S. at 404, 83 S.Ct. 1790. Sherbert is properly viewed as simply prohibiting denial of a generally available benefit on the ground that the person refused to engage in certain conduct when that conduct would “violate a cardinal principle of her religious faith.” Id. at 406, 83 S.Ct. 1790. In contrast, eagle parts from the National Eagle Repository are not generally available, and a worshipper is not being denied eagle parts because of her religious beliefs.

On the other hand, the Supreme Court has at least hinted that the Free Exercise Clause may require prisons to provide clergy for inmates, Cruz v. Beto, 405 U.S. 319, 322 n. 2, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam). And some authorities have suggested that the Free Exercise Clause requires the armed forces to provide clergy for military personnel who could not otherwise attend religious services. E.g., Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir.1985). Cf. Beerheide v. Suthers, 286 F.3d 1179 (10th Cir.2002) (requiring prison to provide free kosher meals). Providing clergy for soldiers or prisoners could be viewed as an offset to the deprivation of the right of free exercise resulting from necessary constraints on freedom of movement. But the subject remains unexplored by the Supreme Court.

I raise these issues not to resolve them, but to stress that they are not resolved by this court today. We need not, should not, and do not decide in these cases whether RFRA invalidates in any way the operation of the National Eagle Repository. That interesting issue must await full briefing and argument in a proper case.

. No permit is required to possess parts of bald eagles lawfully acquired before June 8, 1940, 50 C.F.R. § 22.2(a)(1)(i), or parts of golden eagles lawfully acquired before October 24, 1962, 50 C.F.R. § 22.2(a)(1)(ii). It is not clear what kind of proof is required for a possessor of eagle parts to qualify for one of these exceptions to the general permit requirement.

. RFRA includes the sentence: "Granting government funding, benefits, or exemptions to the extent permissible under the Establishment Clause, shall not constitute a violation of this chapter.” 42 U.S.C. § 2000bb-4. I am not sure whether this provision has relevance to the present case. See Douglas Lay-cock & Oliver S. Thomas, Interpreting the Religions Freedom Restoration Act, 73 Tex. L.Rev. 209, 238-39 (1994) [hereafter Laycock & Thomas]. .