| Keyword |
Date: Filed /
UNITED STATES COURT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
RAYMOND S. HARDMAN,
Defendant - Appellant,
UTE INDIAN TRIBE OF THE
UINTAH AND OURAY
(D. Ct. No. 99-CR-166-B)
|In the Matter of: JOSELUIS SAENZ,
Claimant - Appellee,
DEPARTMENT OF INTERIOR,
Defendant - Appellant.
(D.C. No. 99-21-M)
ORDER ON REHEARING EN BANC
Filed August 8, 2001
Before TACHA, Chief Judge, and SEYMOUR, EBEL, KELLY,
BRISCOE, LUCERO, and MURPHY, Circuit Judges.
THE COURT has today simultaneously issued its opinions in the cases of
United States v. Hardman, 99-4210; United States v. Wilgus, 00-4015; and
v. Dept. of Interior, 00-2166. These cases present a number of inter-related --
although not identical -- issues and the en banc court has determined for purposes
of consistency that these three cases should be reheard by the entire en banc
Accordingly, the court sua sponte orders en banc rehearing in United
States v. Hardman, 99-4210; United States v. Wilgus, 00-4015; and Saenz v.
Dept. of Interior, 00-2166. The panel opinions in these cases are vacated. It is
anticipated that these cases will be reheard during the Court's November 2001
We request that the attorneys in each case brief and prepare to orally argue
the issues listed below to the extent they are applicable to their case.(1) We request
that the parties coordinate their briefing and argument to reduce the amount of
unnecessary repetition. Each party's brief shall not exceed twenty pages in
length,(2) and all briefs are simultaneously due
by Friday, September 28, 2001.
Each side in each case will be given ten minutes of argument time which may be
combined among the cases if the parties believe that will improve the
ISSUES TO BE ADDRESSED AS APPROPRIATE
I. LEGAL STANDARDS
A. Free Exercise Clause standard
- Does the RFRA or the First Amendment standard apply?
Does the Religious Freedom Restoration Act ("RFRA") apply
in lieu of traditional First Amendment analysis whenever a
person's religious exercise is substantially burdened by the
federal government, even when the parties have not raised
RFRA below or on appeal?
- What is the precedential value of Werner v. McCotter,
49 F.3d 1476 (10th Cir. 1995), after City of Boerne v.
Flores, 521 U.S. 507 (1997)?
- Free Exercise Clause analysis: Smith safe-harbor, rational
basis scrutiny, or strict scrutiny?
- Are the Migratory Bird Treaty Act ("MBTA") and the
Bald and Golden Eagle Protection Act ("BGEPA")
neutral, generally applicable laws, thereby falling within
the safe-harbor analysis of Employment Division v.
Smith, 494 U.S. 872 (1990)? See also Swanson v.
Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th
- Given the unique guardian-ward relationship between
the federal government and Native American tribes,
should this court apply rational-basis scrutiny to the free
exercise challenges to the Acts? Cf. Rupert v. U.S. Fish
and Wildlife Serv., 957 F.2d 32 (1st Cir. 1992); Peyote
Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210
(5th Cir. 1991) (Establishment Clause cases applying
- Strict Scrutiny
i. Are the Acts non-neutral or not generally
applicable, thereby requiring this court to apply
traditional First Amendment strict scrutiny as
described in Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531-32, 546
ii. Do the Acts establish "a system of individualized
exemptions" such that, to be constitutional, they
must survive the compelling state interest test
described by Sherbert v. Verner, 374 U.S. 398
(1963)? See Smith, 494 U.S. at 883-85.
- Comparison of RFRA and First Amendment standards: In
what ways, if any, does the "narrow tailoring" requirement of
First Amendment strict scrutiny differ from the "least
restrictive means" requirement of RFRA?
B. Establishment Clause standard
- Given the unique guardian-ward relationship between the
federal government and Native American tribes, what level
and type of scrutiny should this court give to Establishment
Clause challenges to the Acts? Cf. Morton v. Mancari, 417
U.S. 535 (1974).
- Should this court apply rational-basis or strict scrutiny?
Cf. Rupert v. U.S. Fish and Wildlife Serv., 957 F.2d 32
(1st Cir. 1992); Peyote Way Church of God, Inc. v.
Thornburgh, 922 F.2d 1210 (5th Cir. 1991)
(Establishment Clause cases applying rational-basis
- Should this court apply the Establishment Clause test of
Lemon v. Kurtzman, 403 U.S. 602 (1971), or one of its
II. APPLICATION OF THESE STANDARDS
A. Applicable Facts
- Are the records in Hardman, Wilgus, and Saenz
developed for this court to decide the issues relevant to each?
- May this court take judicial notice that the Fish & Wildlife
Service has proposed that the bald eagle be removed from the
list of endangered and threatened wildlife in the lower forty-eight states? See
Proposed Rule to Remove the Bald Eagle in
the Lower 48 States from the List of Endangered and
Threatened Wildlife, 64 Fed. Regulation. 36454 (July 6, 1999)
(stating that "available data indicate that this species has
- Given that the MBTA implements international treaties, see 16
U.S.C. § 703, may a district court find relevant facts to be
used when determining the validity of the Act, or must courts
use only facts found by Congress when the Act was passed?
B. Compelling State Interests: What compelling state interests justify the
MBTA and the BGEPA?
- Given the present eagle population, is protecting eagles a
compelling state interest?
- Is fulfilling the federal government's obligations under
international treaties like the MBTA to protect eagles a
compelling state interest?
- Does the federal government have a compelling state interest
in fulfilling its trust and treaty obligations to Native
Americans by preserving Native American culture and
a. If so, does that obligation extend to permitting members
of federally recognized Indian tribes to possess eagle
b. Does the obligation extend to permitting ethnic Indians,
but not members of federally recognized Indian tribes,
to possess eagle parts?
c. Does the obligation extend to permitting exclusive
access to eagle parts to one or both of these groups, but
to no one else?
C. The "Fit" between the Acts and the Interests Offered to Justify the Acts
- Are the MBTA and the BGEPA the least restrictive means of
furthering the relevant compelling state interest(s), i.e., do
they survive RFRA?
a. Does the Native American status of an adherent
affect this analysis, i.e., Saenz is a Native
American while Hardman and Wilgus are not?
2. Are the MBTA and the BGEPA narrowly tailored to further
the relevant compelling state interest(s), i.e., do they survive
First Amendment strict scrutiny?
3. Are the MBTA and the BGEPA rationally related to legitimate
state interest(s), i.e., do they survive First Amendment
D. Establishment Clause: Do the MBTA and the BGEPA violate the
III. MISCELLANEOUS: Are there any relevant differences between the MBTA
and the BGEPA such that we should analyze their effect on religious exercise
ENTERED FOR THE COURT
Patrick Fisher, Clerk
Click footnote number to return to corresponding location in the text.
1.Other issues may be addressed as well.
2.Only a brief summary of facts is necessary as
the parties can assume that
the court is familiar with their previously submitted briefs.
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