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10th Circuit Reinstates Prosecution in Eagle Killing Case May 11, 2008

Posted by rezjudicata in 10th Circuit, Federal Circuits.
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United States v. Friday, No. 06-8093 (10th Cir. May 8, 2008)

Issue(s): Religious Freedom Restoration Act > Substantial Burdens >> Compelling Interests; Bald and Golden Eagle Protection Act > Permit System >> Least Restrictive Means

The Bald & Golden Eagle Protection Act criminalizes taking eagles without a permit. Through an obscure procedure, members of federally recognized tribes can apply for a permit to take an eagle for religious purposes. Friday, a Sun Dance sponsor, shot a bald eagle for the ceremony without obtaining a permit. So the government prosecuted him. But does the Eagle Act unlawfully burden Friday’s free exercise under the Religious Freedom Restoration Act?

Not according to the Tenth Circuit. Friday first argued that applying for a permit was an essentially futile process. Testimony revealed that the government received and processed only 4 applications-3 successful, 1 unsuccessful. The government admittedly made no efforts to inform tribes of the permit process. But the Court called this “obscurity, not futility.” Evidence showed that the government processed one of the successful applications in about three months. This would have given Friday enough time to obtain a permit in time for the Sun Dance. Without more, the Court refused to say Friday would not have received a permit had he applied. The permit application, therefore, was not a futile undertaking and not a substantial burden on Friday’s religious practices.

Second, Friday argued that government failed to show how the permit system furthered its compelling interest in protecting eagles. Friday contended that the government made no empirical findings that its permit system was more effective than unregulated eagle harvests. The Court dismissed this argument saying that “[t]he government cannot be expected to quantify the precise impact” of unregulated harvests. Moreover, its compelling interest remained the same regardless of the size of the eagle population. The eagle-as a national symbol-does not need to be endangered to be protected. Thus, as a method that limits eagle takings, the permit system further the government’s compelling interest.

Third, Friday argued that the government must take affirmative steps to inform tribes of the permit process. Otherwise, the process is too restrictive because of its obscurity. The Court, however, said that the permit system was no secret. Indeed, the government does not violate free exercise because it fails to inform religious adherents of an accommodation in the law.

Friday finally argued that the government does not apply criminal sanctions equally. Electrocution causes far more eagle deaths than lethal take permits. But the government does not prosecute power companies for eagle deaths caused by their lines. The government cannot punish religious damage to its compelling interests while ignoring secular damage. The Court, however, stated that the government threatens to prosecute power companies. To avoid prosecution, power companies enter voluntary avian protection plans with the Fish and Wildlife Service. Thus the government treats both religious and secular damage equally by requiring both to minimize impact on eagles: one through permits, the other through avian protection plans. Therefore, the government adequately demonstrated a true compelling interest.

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