92 F. Supp. 3d 1160
D. Wyo.2015Background
- Northern Arapaho Tribe (NAT) applied for USFWS permits to "take" (capture/kill) up to two bald eagles for tribal religious use, listing the Wind River Reservation as the collection locality.
- Eastern Shoshone Tribe (EST) objected during consultation, asserting eagles are sacred to EST and opposing taking eagles on the Wind River Reservation.
- USFWS issued permits allowing take within Wyoming but expressly excluding the Wind River Reservation, reasoning this accommodated competing tribal religious interests while protecting eagle populations.
- NAT sued under the APA and the Free Exercise Clause (RFRA claim was previously adjudicated in defendants’ favor and not re-decided here); challenge concerns USFWS’s informal adjudication denying take on the reservation.
- The court reviewed the agency action as a final informal adjudication under the APA, limited review to the administrative record, found the APA arbitrary-and-capricious claim failed, but held the agency violated the Free Exercise Clause and remanded the permit findings for reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the agency's informal adjudication arbitrary or capricious under the APA? | NAT: Agency incorrectly read 50 C.F.R. §22.22 and lacked substantial evidence that EST’s beliefs would be burdened. | USFWS: Interpretation of the regulation was permissible and record supported EST’s objection. | Held: Not arbitrary or capricious—agency interpretation and factual conclusion re: EST belief were upheld. |
| May the court consider extra-record evidence in APA/constitutional review? | NAT: Summary judgment practice permits extra-record evidence for constitutional claims and to rebut record facts. | USFWS: Review must be limited to the administrative record; extra-record material not before agency is improper. | Held: Court limited review to the administrative record and granted motion to strike extra-record evidence. |
| Is the claim moot (permits expired)? | NAT: Although permits expired, the issue is capable of repetition yet evades review because renewals raise same conflict. | USFWS: Permits have expired; controversy moot. | Held: Not moot—exception for matters capable of repetition but evading review applies. |
| Did USFWS violate the Free Exercise Clause by excluding the Wind River Reservation? | NAT: Exclusion burdens their religious exercise on tribal lands; agency must satisfy strict scrutiny for such discrimination. | USFWS: Decision balanced competing tribal religious interests and protected eagle populations; compelling interests exist. | Held: Agency action was facially discriminatory and failed strict scrutiny—decision violated the Free Exercise Clause; permit findings remanded. |
Key Cases Cited
- Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (facially discriminatory laws burdening religion trigger strict scrutiny)
- Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (RFRA requires a focused, claimant-specific inquiry into compelling government interests)
- Holt v. Hobbs, 135 S. Ct. 853 (2015) (similar RFRA/RLUIPA guidance on focused inquiry and marginal interests)
- Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (RFRA compelled examination of particularized burdens and marginal harms)
- United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (Tenth Circuit recognized government interest in protecting Native American tribal culture/religion)
- United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011) (further discussion of the government’s asserted interest in fostering federally-recognized tribal culture)
- Camp v. Pitts, 411 U.S. 138 (1973) (administrative-review focal point is the administrative record)