*1 Society; Legal The National all claims and its award Christian on mary judgment Evangelicals; Clif Association of to the defendants. of costs Kirkpatrick, ton Stated Clerk Assembly the Pres of General (U.S.A.); Queens byterian Church Churches, Amicus Curi Federation of ae.

No. 02-2323. BENEFI O CENTRO ESPIRITA Appeals, of United States Court VEGETAL, also DO UNIAO CIENTE Tenth Circuit. known as Uniao Sept. (USA)(“UDV-USA”), Mexico a New and on corporation its own behalf in the all its members Unit

behalf of Bronfman, States; Jeffrey individ

ed UDV-USA;

ually of and as President individually Tucker, and as

Daniel UDV-USA; of

Vice-President individually Barreto, and as

Christina UDV-USA;

Secretary Fernando of individually Treasurer

Barreto, and as Berman; UDV-USA; Christine Berman; Almeida de

Mitchel Jussara

Dias, Almeida as Jussara also known Domingo; Len

Dias; David Patricia Martin; Eugenia

derts; Maria David Rea; John;

Pelaez; Bryan Don St. Tucker; Law, individu Solar

Carmen UDV-USA,

ally members of and as

Plaintiffs-Appellees,

v. Attorney ASHCROFT,

John General Hutchinson, States; ASA United the United States

Administrator Administration;

Drug, Enforcement O’Neill, Secretary of the De

Paul H. Treasury

partment of the United

States; Iglesias, United David C. Attorney for the District of

States Fry, Mexico;

New David F. Resident Charge

Special Agent

States Customs Service Office Investigation Albuquer

Criminal

que, Mexico, in their official New all

capacities, Defendants-Appellants, *2 (Michael Collette, Jay

Matthew M. Sing- briefs), him Attorneys, Ap- er with on the Division, pellate Department Staff Civil Justice, DC, Washington, for Defendants- *3 Appellants. (John Hollander,

Nancy Boyd W. brief), Freedom, Boyd, her on the Dan- iels, Hollander, Cline, P.A., Goldberg & NM, Albuquerque, Plaintiffs-Appel- for lees. Adams,

Gregory Baylor, S. Nathan A. Colby, Kimberlee W. of Center for Law Freedom, Religious Legal and Christian Annandale, VA, Society, filed an amicus Plaintiffs-Appel- curiae brief on behalf of lees. SEYMOUR, PORFILIO,

Before and MURPHY, Judges. Circuit PORFILIO, JOHN C. Senior Circuit Judge. Ashcroft, Attorney

John General of the States, al., appeal United et an order in the United States District for Court preliminarily District of New Mexico en- joining government from prohibiting or penalizing the sacramental use of containing substance dimethyltryptamine (DMT), a drug listed Section I of the (CSA), Controlled Substances Act 801-904, §§ Espirita U.S.C. O Centro Vegetal, Beneficiente Uniao do a small re- ligious organization. We affirm. Vegetal, Uniao do President of the Un- Vegetal’s chapter iao do United States Jef- Bronfman, frey and several other church UDV) (collectively, members filed a Com- plaint Declaratory Injunctive Re- Preliminary Injunc- lief and a Motion for against Attorney tion the United States General, Attorney United States Mexico, Drug District of New Enforce- (DEA), ment Administration the United Service, Customs and the Depart- States Treasury (collectively, ment of the Govern- First, the federal on a sincere exer merit), of the violation alleging Amendments, Hurley, Kikumura v. Fourth, Equal religion. cise of See Fifth (10th Cir.2001).2 242 F.3d The the Administrative principles, Protection (APA), international laws therefore shifted to the Govern Act burden Procedure treaties, Religious Freedom challenged regulation and the ment to show “the (RFRA), 42 U.S.C. compelling Restoration Act furthers a interest the least sought declaratory § 2000bb-l. UDV manner.” restrictive See U.S.C. injunctive against relief 2000bb-l(b); Meyers, States v. Cir.1996). prohibition (10th penalty Government’s or and use possession, importation, church’s three in Government asserted any attempt to seize against of hoasca in prohibiting protection terests hoasca: *4 Vegetal do drug prosecute or Uniao safety Vegetal the health and of Uniao do members. members; from the potential for diversion users; compli church to recreational and hearing, August on

After a two-week Nations ance the 1971 United Con 2002, 12, granted court the district UDV’s (Con Psychotropic vention oh Substances in a preliminary motion for a vention). Psychotropic Convention on Opinion Memorandum unpublished Substances, 21, signature for Feb. opened rejected argu- court UDV’s The Order.1 (ratified by 1019 U.N.T.S. is not covered under ments that hoasca 1980) [hereinafter United States Con prohibiting importation, the CSA vention]. drug and use of the violates possession, international law. Constitution required The court the Govern- district However, had ad- the court held UDV prove ment to sacramental hoasca con- RFRA

vanced a successful claim. health to sumption poses a serious risk and, if Vegetal members sanc- Uniao preliminary injunc- of the purposes For tioned, significant diversion tion, would lead dispute did not UDV the Government non-religious Finding use. evidence on under prima facie case had established “in equi- the health risks to UDV members imposed RFRA —a burden substantial rejected have sufficed to demonstrate “a substantial court UDV’smotion for The district merits,” Equal preliminary injunction based on its on the the first likelihood of success February 2002 or- in a granting Protection claim of four factors courts consider in order, August In the the court der. injunction. Hurley, preliminary Kikumura v. general the CSA is a neutral law of held (10th Cir.2001). In Kiku drug consumption applicability, controlling of mura, held, "[bjecause request Plaintiff's we religious alike with the and recreational users stage pastoral appear at for visits this initial goal protecting public broad of health. protected religious litigation to be a rejected argument court UDV's that hoasca exercise, not chal and because Defendants do the CSA. Addition- not listed in Schedule I of religious lenge sincerity of Plaintiff's be rejected argument ally, UDV’s that the court liefs, only prove the denial Plaintiff need exemption drug given to Brazilian laws pastoral was a ‘substantial bur visits hoasca, consumption princi- religious religion' 'exercise of in order to den' on his ples comity suggest the court should sanc- on likelihood of success show substantial Finding country. tion sacramental use in this Nevertheless, Id. at 961. the RFRA claim.” APA, under the the Fourth Amend- the claims Government’s UDV’scounter-evidence on the ment, primarily and the Fifth Amendment proof alleged compelling interests serves type questions about of relief concern interest, public of harms and that the balance warranted, ruling on these the court deferred four, factors three and claims. tip in their favor. prima UDV’s establishment of a 2. Note that violation, alone, standing would facie RFRA on of diversion “virtu- poise,” appeal, urged evidence risk On us to affirm the balanced,” court, and hoasca not covered ally contending district the Government Convention, the court held the Govern- prove poses failed to hoasca health risks to to meet its “onerous burden” ment failed members, church does not Convention it compel- RFRA. Because found no under apply to do Vegetal’s Uniao interests, the court did ling government consumption of comparable hoasca is a least restrictive means anal- not conduct exempted the Native American Church’s ysis. reversal, peyote. use of Calling for a appeal Government’s focused on the com- court concluded UDV dem- The district pelling interests asserted below. “substantial likelihood success onstrated and satisfied the other on the merits” Background I. preliminary injunc- requirements three First, irreparable injury, on tion. A. Uniao do noted, “Tenth Circuit law indicates Vegetal, syncretic religion Uniao do the violations exercise theology indigenous Christian South repre- under the RFRA rights protected beliefs, American was in Brazil in founded Second, injuries.” irreparable sent bal- *5 aby who discovered rubber-tapper harms, held, light the court “in ance of (the the sacramental use of hoasca Portu- the parties’ the closeness of evidence re- guese ayahuasca) transliteration of in the safety garding the of hoasca use and its Amazon A highly rainforests. structured diversion, for the scale potential tips organization with elected administrative Finally, favor.” the court rea- Plaintiffs’ officials, and clerical UDV uses vindicate soned failure to freedom Quechua which in the language Indian RFRA —a protected specifi- under statute soul,” means “vine of the “vine of the cally by Congress, representa- enacted as dead,” vine,” or “vision as a link to the public, to countermand a tive of Su- divinities, communion, holy and a cure ruling preme Court be adverse to —would physical for ailments psychological. public interest. Church doctrine dictates can members 12, 2002, In an dated November order perceive only by and understand God remedy, the court delineated a preliminari- Brazil, drinking hoasca. in which there ly enjoining prohib- the Government from 8,000 are about Vegetal Uniao do mem- iting penalizing or sacramental hoasca use bers, recognizes do Vegetal Uniao as a by Vegetal do The Uniao members. religion exempts sacramental use of church, required upon also de- hoasca from its prohibited controlled sub- DEA, identify mand its members stances. ingested Hoasca is at least twice ceremonies, hoasca outside of who handle monthly guided lasting ceremonies inspections allow for on-site and invento- about four hours. during Rituals Uniao do ries, provide samples, identify times and Vegetal service include the recitation of ceremonies, and designate locations of law, leader, sacred singing of chants DEA. liaison to the question-and-answer exchanges, and reli- The moved for emergen Government gious teaching. cy stay preliminary injunction of the pend Vegetal Uniao do has been officially 12, 2002, ing appeal. On December we the United States since when its granted stay, holding UDV failed to highest official visited and founded a equivocal” demonstrate “clear and right to Fe, Mexico, branch in Espirita Ashcroft, relief. O Centro v. Santa New subor- (10th Cir.2002). F.3d dinate to the Brasilia headquarters. Ap- accepted has an medical mem- tent to which it Vegetal do 130 Uniao proximately States, use, I, currently potential reside the United and its abuse. Schedule bers list, are Brazilian citizens. of which thirty encompasses the most restrictive granted Un- Revenue abuse,” Internal Service “high potential with a drugs status. exempt tax iao do medical use in currently accepted “no States,” treatment in the United and “a by brewing together is made Hoasca accepted safety drug lack of for use of the plants, Brazilian banister- indigenous two under medical supervi- or other substance Psy- viridis. psychotria iopsis caapi 812(b)(l)(A)-(C). DMT; § banisteriopsis con- sion.” Id. Included chotria contains alkaloids, material, harmala known as beta- “any compound, tains I is Schedule carbolines, hallucinogen- DMT’s allow mixture, which contains preparation or monoa- by suppressing to occur ic effects quantity following hallucinogenic of the digestive sys- in the enzymes mine oxidase substances,” § including DMT. Id. would break down the tem that otherwise entity may individual or distribute or No combination of Ingestion DMT. of the dispense a I controlled substance Schedule the brain in allows DMT to reach plants except part strictly of a controlled re- alter con- significantly levels sufficient DEA project registered search sciousness. approved by Drug the Food Ad- grow in the plants Because the ministration, pur- or for limited industrial States, in Brazil prepared United hoasca is consumption human poses excluding exported officials and by Church 823(f). substance. Id. May States. On United Nations The 1971 United Convention agents seized a Customs Service States an in- Psychotropic Substances embodies *6 “tea extract” shipment of hoasca labeled prevent effort “to and combat ternational and do Jeffrey bound for Bronfman Uniao and the [psychotropic] abuse of substances subsequent A

Vegetal-United States. gives it rise.” Con- illicit traffic to which Mr. residence result- search of Bronfman’s vention, treaty The classifies Preamble. approximately gal- in the seizure of ed according degree to their of substances Although lons of hoasca. usefulness, with Sched- safety and medical charges filed criminal stem- has not substances, including representing ule I possession church officials’ ming from DMT, are unsafe and lack particularly prosecution; ac- it has threatened to the any medical use. Parties Conven- cordingly, has ceased Uniao all, tion, nations in must more than 160 using the tea the United States. “[p]rohibit except all use for scientific purposes.” Id. Art. very limited medical Legislation B. 7(a). it Act makes The Controlled Substances “manufacture, distribute,

unlawful to dis- also bans unauthorized Convention intent to manufac- pense, possess or the substances and import export distribute, ture, dispense” any or con- subject provides, preparation “a substance, “except as authorized” trolled measures of control as substance same 841(a)(1). § Act. 21 Posses- by the U.S.C. 3(1). Art. With it contains.” Id. which as autho- except sion is also criminalized I use of Schedule sub- respect religious 844(a). § rized. Id. stances, signatories allows the Convention a sub- exempting make “reservations” The CSA classifies controlled substances provisions of Article schedules, stance from according to five based on re- circumstances: safety, following ex- under the quired findings drug’s of a (b) territory plants Exception A on whose are State psychotropic which contain growing wild may substantially Government burden among from those in substances Sched- person’s if it religion only exercise of traditionally I which are used ule and application demonstrates that of the small, clearly groups certain determined burden to the person— religious rights, may, or magical (1) is in a compelling furtherance of ratification, signature, or ac- the time of interest; governmental cession, concerning reservations make (2) is the least restrictive means of respect provisions plants, these furthering that compelling govern- 7, except provisions article relat- mental interest. trade. ing to international (c) Judicial Relief 32(4). provision, Under this Id. Art. A person made a reservation for Na- whose exercise has

United States religious use of peyote. tive American been burdened violation of this sec- nor Brazil Neither the United States may tion assert that violation as a for DMT. made a reservation ... in judicial proceeding claim obtain appropriate against relief states, “Congress Amendment The First government. no respecting shall make law establish religion, prohibiting ment or the free § 42 U.S.C. 2000bb-l. RFRA restores exercise thereof.” U.S. Const. amend. I. the pr e-Smith interest es test Division, Employment Dep’t Human Verner, 398, poused in Sherbert v. 374 U.S. v. Smith held the Free Resources Exercise 1790, (1963), 83 S.Ct. 10 L.Ed.2d 965 require Oregon exempt Clause did not Yoder, Wisconsin v. 406 U.S. 92 S.Ct. drug from its criminal laws the sacramen (1972). Congress 32 L.Ed.2d 15 ex peyote by tal ingestion members of the stated, plicitly “the term ‘demonstrates’ Native American Church. 494 U.S. means going meets burden of forward 885-890, 110 S.Ct. 108 L.Ed.2d 876 persuasion.” with the evidence and of (1990). laws, Generally applicable U.S.C. 2000bb-2. concluded, may applied Court be to reli Following RFRA, Congress’ passage of regardless gious exercises of whether the *7 the Supreme Court found it unconstitu a in Government demonstrates applied tional as City states. of contrast, By terest its rule. Id. for a law Flores, 507, 519, Boerne v. 521 U.S. 117 generally appli that is not neutral and not 2157, (1997). S.Ct. 138 L.Ed.2d 624 How justified by cable a compelling “must be ever, because we held RFRA binding on narrowly interest and must be Kikumura, government, the federal 242 tailored advance that to interest.” Church 959, pre-Boeme F.3d at law appli ease Aye, the Lukumi Babalu Inc. v. City of of cable here. Hialeah, 520, 531-32, 508 U.S. 113 S.Ct. (1993). 2217, 124 472 L.Ed.2d Analysis II. Act, Religious

The Freedom Restoration Smith, provides: enacted after “This court grant reviews the of (a)In preliminary injunction a general for abuse of dis cretion,” which occurs when a district shall not substantially

Government law, court “commits error of or is clear person’s a exercise of religion burden ly preliminary erroneous its factual find even if the burden results from a rule Satellite, ings.” general applicability, except pro- as Dominion Video Inc. v. (b) 1149, Corp., vided subsection of this section. EchoStar Satellite 269 F.3d Cir.2001) (citation omitted). (10th injunction If a prehminary alters 1153 quo, on the status a must plaintiff a district court’s decision “show review We balance, [preliminary injunc the four qualifies “compel an interest whether law, weigh heavily compelling de novo. factors ling,” question tion] Hardman, 1116, 1120, SCFC ILC, inly F.3d favor.” Inc. v. Visa [its] States v. 297 Cir.2002). (10th (10th Inc., 1096, Although 1127 we have 1099 Cir. USA 1991). Altering quo the status appropriate requires not ruled on the standard analysis mandatory of court relief grant review for a district court’s to under means,” non-moving party id. at we which the must take af “least restrictive action, prohibitory novo the “ultimate determina firmative whereas in review de junctive RFRA simply preserves tion as to whether the has been relief the status Note, quo. (citing Like id. Meyers, violated.” 95 F.3d at 1482. See 78 Harv.L.Rev. (1965)). wise, Here, interpreta we consider de novo 1062-63 Govern preliminary injunction v. Bab ment claimed the tion of the Convention. See Utah (10th Cir.1995). bitt, quo F.3d alters the status —enforcement findings underlying compliance We review factual the CSA and with the Conven right for clear therefore asserted the legal district court’s conclusions tion—and Hardman, proven “heavily relief must be and compel error. 297 F.3d at 1120. lingly.” preliminary injunc The for a standard grant requirement plaintiff seeking A will that a

tion is well known. injunction quo prove if to alter the four preliminary plaintiff shows the status “(1) “heavily preliminary a substantial likelihood success on factors (2) case; universally irreparable compellingly” the merits of the is not followed Moreover, if federal an examina- injury preliminary to the movant courts.3 (3) denied; tion of from our circuit injunction is the threatened cases demonstrates injury and Miller’s injury outweighs support Wright to the movant we statement party to the other under the often is difficult to determine “[i]t (4) injunction; appropriate fixing is not what date is Wright, 11A Alan public quo.” adverse to the interest.” Kikumu status Charles ra, Miller, Kane, May Kay 242 F.3d at 955. Arthur R. & Fed- seeking requirement plaintiff equities applies to motions for manda- 3. The that a — quo prove prelimi- injunctive tory preliminary alter the status the four relief as well as nary injunction “heavily compel- injunctive prohibitory factors motions for relief. lingly” universally is not followed federal v. Blue Cross and Blue Shield See also Sluiter instance, Circuit, courts. The Sixth Michigan, F.Supp. wholly rejected the distinction between differ- (E.D.Mich.1997) (refusing apply *8 proof mandatory test, ent for versus standards though "heavily compellingly” even and injunctive prohibitory Food relief. In United Michigan previ- District of had the Eastern Union, Local v. and Commercial Workers 1099 so, ously "maintenance of the done because Auth., Regional Ohio Transit 163 Southwest lives”). [plaintiffs'] quo status would threaten (6th Cir.1998), F.3d 348 it held: developed circuit. We Nor is it well in our precise meaning have not articulated the consequential impor- We see little therefore instead, "heavily compellingly;” the quo, concept the tance to of status appears heightened burden to influence our conclude that the distinction between man- determination of how to balance evidence datory prohibitory injunctive relief is preliminary injunction presented on the fac- reject meaningful. Accordingly, we Regardless, "heavily compel- tors. ‘heavily compellingly’ Tenth Circuit’s juris- lingly” part of our pre- standard remains standard and hold that the traditional balancing liminary injunctive prudence. standard —the 1178 Procedure, §

eral Practice and 2948 at 137 between itself and Dominion. Id. Prior to (2nd ed.1995). refusal, Some of our cases define however, this EchoStar had been that which quo immediately the status activating Dominion regard- subscribers litigation. preceded the See Prairie Band less of the contract days terms. Four Pierce, Potawatomi Indians v. 253 F.3d after EchoStar indicated it would no long- Cir.2001)(status (10th 1234, 1250 quo is subscribers, er activate Dominion Domin- instigated.); existing litigation situation at time is brought ion seeking injunctive action ILC, USA, Inc. v. Visa Inc. relief SCFC EchoStar to continue its (10th 936 F.2d 1099-1100 previous practice. Id. at 1152. This court Cir.1991)(status quo existing status be rejected EchoStar’s assertions that parties at time court tween considers re status quo be confined “to days the four relief.); quest injunctive Kikumura v. preceded that the filing of the motion for (10th Hurley, 242 F.3d relief,” injunctive id. at stating that Cir.2001)(plaintiff sought to alter status the “last uncontested status between the quo through preliminary de parties was the four years in which EchoS- manding prison change existing pastoral tar activated Dominion subscribers.” Id. policy). visit holdings These lead us conclude the Not all of our cases take such an abso- definition of quo” “status approach defining lute in quo, status purposes depends very much on the facts In Applegate, however. Valdez v. particular of a case. Valdez and Domin- (10th Cir.1980), grazers livestock ion support Video position brought enjoin an action to the New Mexi- in quo status this case should be viewed as (BLM) co Management’s Bureau of Land the time plaintiffs when the were exercis- implementation of a grazing plan which ing their religious freedoms before the plaintiffs’ ability reduced the graze live- government enforced the against CSA stock. If we were to follow the approach brief, them. As UDV asserts its here, supported by we church was possessing its sacrament and must read implementation graz- BLM’s practicing religion. its Aple. See Br. at 53. ing quo limits as the status because that Video, Like Dominion it was the govern- was the immediately pre- state of affairs ment’s enforcement action which changed ceding the litigation. expla- much Without the status quo and became the impetus for nation, however, the im- Valdez court held litigation. Video, this See Dominion plementation grazing plan should be Hence, F.3d at 1155. the last uncontested enjoined to quo. maintain the status Id. at status parties between the plain- was the follows, then, It quo the status tiffs’ uninhibited exercise of their faith. It Valdez was grazing rights enjoyed by government’s is the attempt disrupt plaintiffs prior implementation status that enjoin. UDV seeks to of the grazing plan. say To the enforcement of Likewise, the CSA Video, in Dominion the court and the Convention against UDV the refused to “extend the definition of the status quo ignores part played quo status this to invariably include the last case the RFRA. Having status based immediately before the in- its com filing of RFRA, junctive plaint relief.” 269 F.3d at UDV asserted the (empha- exis *9 added). Video, case, sis tence of a prima In Dominion Defen- facie defined aas dant EchoStar argued the status substantial quo imposed by was burden the federal its refusal to activate Dominion subscrib- on a sincere exercise of reli ers in accordance with Kikumura, terms in a gion. contract See 242 F.3d at 960. marijuana and distribution of not- estab- session has conceded UDV The Government withstanding religious prac- This conces- the burden on prima facie case. lished its tice). that the sta- the conclusion sion buttresses not the need to enforce quo

tus here is perceive quality do we a sinister Nor religious practice but rather UDV’s CSA in plaintiffs’ practicing religion their bur- governmentally imposed a free from Indeed, history provides many ex- secret. den. unpopular religious in which then amples the concern of Nor do we share openly For exam- beliefs were not held. “any reasoning of this dissent that because church ple, early Christian conducted by quo the status party could establish in the Roman catacombs. Se- its services engaging in behavior surreptitiously faithful, was an essential to crecy, lawby a until discovered violated statute self-preservation. claiming and then enforcement authorities existing law that it is the enforcement A. Health Risks to Uniao change to a in the status that amounts Vegetal Members It is true that under our construc- quo.” court found the evidence on district tion, using a a CSA-listed sub- plaintiff Vegetal the health risks to Uniao do mem- federally other engaging stance or “in equipoise.” bers from hoasca use was RFRA activity could claim a prohibited The dearth of conclusive research on the However, plaintiff a who held violation. effects of hoasca and DMT fuels the con- prac- or whose insincere beliefs troversy preliminary in this case. One not, fact, were burdened tices federal study, conducted in 1993 Dr. Charles laws, prima stage facie pass would not Grob, Psychiatry at the Professor Uni- therefore, RFRA, and, escape would not California, versity' Angeles, Los com- proof burden of for the heightened pared long-term Uniao do See, injunction four factors. preliminary members, who drank hoasca for several Meyers, 95 F.3d e.g., United States v. subjects who never years, with 15 control (10th Cir.1996) (refusing to dismiss adminis- ingested the tea. Researchers defendant marijuana charges against psychiatric, neuropsycho- a series of tered his “beliefs more based on RFRA because compiled life logical, physical tests accurately philosophy a espouse and/or In story published interviews. articles ”). ‘religion’ a way of life rather than re- journals, researchers various scientific Moreover, pre- under the standard even overall assessment of the ported positive a test, a easi- liminary court could acknowledging safety of hoasca. While which, while constitut- ly dispose of claims investigation, Dr. the limitations of his case, already RFRA facie had ing prima a testified: Grob instance, For even been ruled invalid. identify group that in a of ran- did [it] under standard subjects had domly collected male who marijuana test, plaintiff seeking to use years, en- ayahuasca many consumed likely would not be religious purposes very tightly tirely within the context of likeli- able to demonstrate substantial church, there had organized syncretic on the merits because hood of success by their injurious effects caused been no sacra- already against courts have ruled contrary, ayahuasca. On the our use See, marijuana e.g., claims. mental consistently im- (1st research team was Rush, 497, 512 v. States Cir.1984) functional very high with the pressed (concluding the Government has subjects. ayahuasca status of the banning pos- interest *10 emphasized and the In response, emphasized

As Government UDV impor- acknowledged, DMT’s Sched- district tant differences in ceremonial use and re- Congressional I-listing represents ule ported effects of hoasca. Dr. expert, high potential “has a finding the substance Nichols, David Professor of Medical Chem- abuse,” currently accepted “no medical for istry Pharmacology and Molecular at Pur- use,” accepted safety and “a lack of for use declared, University, “[ojrally due ingested supervision.” 21 under medical U.S.C. intense, produces hoasca a less more man- 812(b)(1). Addressing study the Grob ageable, inherently psychologically highlighted the Government specifically, safer altered state of Fur- consciousness.” limitations, including the methodological ther, testified, he setting” the “set and size, male-only subjects, and small selec- which an hallucinogen individual takes a According to Dr. Alexander tion bias. are critical in determining experience. Walker, of Epidemiology a Professor at Dr. Grob attested to the absence evi- Health, the Harvard School of Public dence of flashbacks from hoasca use and long-term selection of members of Uniao intensity the milder and shorter duration Vegetal, individuals who were able to compared of hoasca’s effects to those of peri- conform to its norms over extended hallucinogens. other He also declared the ods, requirement without a similar sta- setting ritual do Vegetal Uniao mem- ble, voluntary long-term, church attend- consumption bers’ minimizes danger and the control applied group, ance ensured optimizes safety. Aoasca-consuming group necessarily psychological profile. had a favorable drug Adverse stemming interactions from the beta carbolines in banisteriopsis Government, Dr. Testifying are a Genser, potential danger acknowledged by Sander Chief the Medical Con- sequences ingest Unit of the Center even UDV. Individuals who AIDS hoasca Consequences Drug Other Medical may while on certain medications be Health, at the National Institutes of Abuse developing increased risk for serotonin testified, “existing studies have raised syndrome, a condition caused excessive regarding potential negative physical flags symptoms serotonin levels with including effects” of hoasca. Dr. psychological drowsiness, euphoria, rapid eye sustained study subjects in which Genser cited two movement, reflexes, overreaction of the consuming intravenously administered confusion, dizziness, hypomania, shivering, high DMT rise experienced in blood diarrhea, consciousness, loss of and death. pressure, another had a recurrence of types antidepressants, Several among depression. Information about the dan- drugs, other contain selective serotonin re- gerous of other hallucinogenic effect sub- (SSRIs), uptake inhibitors trigger which stances, Genser, Dr. according to raises prevent release of serotonin or its re- instance, concerns about hoasca. For es- (MAO) uptake. Monoamine oxidase inhib- pecially pre-existing in individuals with itors, including interfere with the psychopathology, lysergic diethyla- acid metabolization of serotonin. The MAOs (LSD), hallucinogen mide substance that may hoasca hinder the metabolization of pharmacological properties shares greater levels of serotonin made available DMT, may produce prolonged psychotic by the use of SSRIs. posthallucinogen perceptual reactions or Genser, Government, Dr. for the noted disorder, commonly known as “flash- inhibitors, “irreversible” backs,” MAO which bind reemergence defined as the to an hallucinogenic may some MAO molecule and aspect experi- forever de- function, ence in drug. the absence of the its stroy may harmfully interact *11 of hoasca are medicines, Although with a studies well as as many with limited, foods. Dr. research indicates in some common Grob’s found chemical drug interac- of adverse Conceding a risk assessment of positive an overall has instituted tions, the church noted UDV Dr. Nich- the substance. health effects of of medi- members’ use screening system a UDV, ols, cogently high- expert for the However, maintained UDV cations. the effects between lighted differences warrant as to is not so substantial danger injected intravenously hoasca versus of hoasca sacramental ban on a importance stressed the DMT. He further irre- First, not contain hoasca does use. Vegetal, do setting” Uniao of “set —for inhibitors, kind associat- MAO versible determining ceremony calm guided, a —in interactions. drug severe with the most ed hallucinogens. impact of psychological testified, Rather, po- experts as UDV case is that the Govern Critical to this is reduced interaction tential for adverse RFRA to dem under was ment’s burden is shorter of reaction and the effect on hoasca use the Uniao onstrate a ban hoasca than with much milder with in hallucinogens a ban on Vegetal, not do Second, do Uniao irreversible MAOs. compelling a interest general, promotes addressed leadership carefully acknowl safety. The court health and drug inter- of adverse possible danger re employing a more declared, if it “were “Hollowing edged Dr. Grob actions. of physicians application with to review of our concerns laxed standard discussions UDV, participants prospective all it of the use of the CSA to UDV’s have been hoasca sessions ceremonial this question reluctant very be would pres- rule out the carefully interviewed to concerning DMT.” finding Congressional might ancillary medication ence of may “[gjovernment provides, RFRA But with hoasca.” adverse interactions induce of person’s exercise substantially burden UDV, the risk of according to Finally, appli ” only if it demonstrates religion with associated drug interaction adverse fur person the burden cation of spectrum normal falls within the hoasca interest, merely not compelling thers experts highlight- concerns. Government general. of the law application hoasca, in- dangerous aspects ed other added). 2000bb-l(b) (emphasis U.S.C. psychotic epi- cluding the increased risk RFRA, consider does not “[U]nder by the data collected Based on sodes. but application, general in its [law] Brazil- of the department medical-scientific is a com whether there rather considers testified, Dr. Genser Vegetal, ian Uniao reason, advanced pelling government definitely of most concern.” “pyschosis means, apply the the least restrictive testimony sug- expert countered with Kiku the individual claimant.” [law] distur- psychotic link between gesting mura, 242 F.3d at 962. coincidental, rather and hoasca bances causal, very low reported listing and that the Thus, than of the criteria for recitation church among psychosis occurrence I on CSA Schedule a substance than the equal in Brazil is or less members not, hallucinogens does danger of general population. general rate in the record, govern in this evince Moreover, RFRA. ment interest under disagreeing basis for We see no preponderate which does “[e]vidence characterization the district court’s meet the fails to simply in equipoise or is hold equipoise” “in the evidence States proof.” United burden of required determination Government proper its (10th Kirk, Cir. F.2d v. on the satisfy its RFRA burden failed to 1990). “failed to build The Government safety of hoasca. health and risks issue *12 demonstrating record” adequate danger to ramental use would result in illegal diver- Vegetal Uniao do members’ health from sion. Hardman,

sacramental hoasca use. Jasinski, Dr. Professor of Medicine at F.3d at 1133. Medicine, the Johns Hopkins School of witness, Government stated he believes B. Risk of Diversion to the risk of abuse of hoasca is substantial. Non-Religious Use view, In positive his reinforcing, or “eu- The district court concluded the evi- phoric,” effects'—“the transient alterations dence of risk of diversion of hoasca from mood, thinking, feeling, perceptions Vegetal Uniao do to non-ceremonial users produced by drug”- [a] the primary —are balanced,” and, is “virtually accordingly, leading factors try individuals to and re- held the failed Government to meet its peatedly a drug use of abuse. Dr. Jasinski Further, “difficult burden” under RFRA. noted research on intravenously injected footnote, noted, in a the court specific- “the DMT and preliminary on studies hoasca ity of analysis Dr. Kleiman’s [testifying for indicate these produce euphoric substances may tip even slightly UDV] scale effects, although those of hoasca “are slow- favor of position.” Plaintiffs’ onset, er in milder in intensity, longer argued

The Government hoasca in duration.” Vegetal used Uniao do would vulner be While acknowledging negative ef- able to Testifying diversion. for the Gov fects of nausea and vomiting, may ernment, Woodworth, Terrance Deputy act aas deterrent people, some Dr. Director of the Drug Enforcement Admin pointed Jasinski out the percentage of Control, istration’s Office of Diversion unknown, and, users who vomit is regard- several factors identified utilized to assess less, the negative may effects not outweigh potential controlled substance’s for diver positive to the extent necessary to sion, including the existence of an illicit Further, deter use. he phar- testified the market, presence of marketing or pub macological LSD, similarities between rec- licity, substance, the form of the and the ognized to potential, have abuse and DMT opportunity cost and for diversion. Focus support an inference hoasca has substan- ing patterns on of drug abuse in the Unit tial potential. abuse States, ed Mr. Woodworth noted a recent contrast, By UDV maintained hoasca substantially increased interest in halluci carry does not significant potential nogens in country. this Advertisements abuse or diversion. expert, Dr. Klei- for hoasca on the internet rising con man, Policy Professor of Studies at sumption of the tea Europe evince de University California, Angeles, Los re- mand for hoasca on the illicit market. ported the negative effects of hoasca and According Woodworth, to Mr. the low availability of pharmalogieally equivalent currently level of hoasca consumed is at- substitutes indicate demand for the sub- tributable to the lack of available native stance would be low. Hallucinogen users plants in country. this Were Uniao do may not tolerate nausea and vomiting. Vegetal import tea, allowed to Dr. Kleiman has written: likelihood of diversion and abuse would substances, hallucinogen DMT, Further, including increase. the fact the tea must Brazil, be score much lower shipped from on scales measuring where hoasca is reinforcement, unregulated, along the uncooperative and have much less ten- relationship dency between the DEA and Uniao to create dependency, than opi- Vegetal, do suggest ates, an exemption for sac- such as ... heroin a much smaller failed to demonstrate than of Government hallucinogen users proportion Notwithstanding the strongly so driven interest. would be opiate users as to drug experience Mr. reports experts out the Wood- competent to seek of side-effects. Jasinski, neglect presence based speculation and Dr. worth general- studies and hoasca Further, ingested mixture the tea-like drugs, with other abused comparisons ized would not members Uniao in the face of Dr. Kleiman’s particularly to individuals attractive particularly be *13 contradictory testimony, does not Instead, powerful experience. DMT seeking an oral onerous to meet the Government’s DMT and a suffice that included “any preparation oxi- proof. of monoamine burden of quantity sufficient con- suffice.” Plants inhibitor would dase Nations Convention on C. United are DMT harmala alkaloids taining Psychotropic Substances States, some of in the United available not induce vomit- combined do which when strongest Believing the Government’s declared, wide- “the Dr. Kleiman ing. Vege- Uniao do arguments prohibiting availability pharmacologically spread and diversion hoasca use to be health tal’s substitutes, with some of them equivalent risks, not ask the the district court did ap- and less fewer unwanted side-effects the present evidence on Conven- parties to risk, the greatly would reduce parent legal However, issuing a hearing. the tion at mate- to divert the sacramental motivation qualified- injunction, the drug abuse.” purposes rial the assertion rejected the Government’s ly other fac- Kleiman recounted Dr. also requires the United that the Convention hoasca would counteract tors he believes Vegetal’s do sacramental ban Uniao States First, Vegetal-United Uniao do diversion. the trea- The court concluded hoasca use. would church and very is a small States hoasca. ty does not cover 3,000 year per doses import about only parties opposing the take appeal, On thin Second, relatively Brazil. from pro- of whether Convention’s views hoasca would reduce market for potential point, At this includes hoasca. scription might occur likelihood of diversion of this the resolution we do not believe An ille- drugs. individual widely-used with necessary appeal. We argument is would have of hoasca gally possession only grant what could therefore decline to buyer than locating trouble greater advisory opinion. an amount to Third, bulky form thief. cocaine by our recognized “treaties are Although Klei- diversion. Dr. hoasca would deter supreme law as Constitution stated, goes up stealing ease of “[t]he man Greene, land,” 523 U.S. Breard v. larger the down. The goes as the volume (1998) 1352, 140 (per 529 L.Ed.2d volume, 118 S.Ct. something is to steal.” the harder curiam), not decide this in- that rule does strong has Finally, Uniao a con supply from with keep presented its hoasca Here we are centives case. diverted, the tea out- ingestion obligations as being government’s flict between context is considered the sacramental side and its obli 1971 Convention under the situation, sacrilegious. RFRA. In such a under gations “that has directed Supreme Court error in the district no clear We see parity a full ... is on Congress Act of the evidence characterization of court’s which is that when a statute treaty, “virtually potential for diversion is inconsistent with subsequent time review, we novo Upon de balanced.” conflict, statute, the extent of treaty, legal conclusion with the court’s agree treaty (quoting government’s renders the null.” Id. compelling interests. Covert, 1, 18, 354 U.S. Reid v. S.Ct. This statement govern- falls short of the (1957) 1222, 1 (plurality opin L.Ed.2d 1148 ment’s burden. See U.S.C. 2000bb- ion)). Robertson, Whitney v. also See 1(b); Hardman, 297 F.3d at 1130-32 190, 194, U.S. 8 S.Ct. 31 L.Ed. 386 (mere speculation or a “record devoid of (1888) (if conflict, treaty and statute “the hard evidence indicating that the current other”). will control the one last date regulations narrowly are tailored to ad- government’s vance the interests” which Thus, if the even Convention other, “does not possibility address the hoasca, the apply does United States less restrictive achieving” means of those under its laws obligations and other interests is satisfy gov- insufficient to protect religious international treaties to RFRA). ernment’s burden under Based part Treaties are freedom. the law of us, on the record before we con- cannot land; they have no greater or lesser *14 government clude the has demonstrated impact parte than other laws. Ex federal 472, 502, “application of the burden Cooper, 143 U.S. S.Ct. (1892). (1) in [UDV] L.Ed. 232 “The freedom to mani furtherance of a compelling observance, (2) .. religion worship, interest; fest in is the least practice teaching encompasses a broad restrictive means of furthering that com- including range of acts” “ritual and cere pelling government interest.” 42 U.S.C. in “participation monial acts” and rituals.” 2000bb-l(b). Comm.,

U.N. Hum. Rts. General Com (1993). Moreover, ment at 4 No. Arguments D. Additional abiding interest in compelling by certain Congress has indicated courts should laws, including the and the CSA Conven look to predating cases in Smith constru- tion, suffice, alone, standing does not ing and applying RFRA. H.R.Rep. See No. carry the burden Government’s under 103-88, Sess., Cong., 103d 1st at 6-7 Hardman, RFRA. 297 F.3d at 1125. (1993). however, Importantly, Congress’ requires RFRA compel that an asserted purpose in enacting RFRA was to restore ling be narrowly interest tailored to the the legal applied standard in pre-Smith specific plaintiff religious whose conduct is decisions, rather than to reinstate actual impaired. Id. S.Rep. 103-111, outcomes. No. 103d The Government cites the declaration of Cong., at reprinted in Dalton, Robert E. Department a State 1892,1898. U.S.C.C.A.N. lawyer Office, Treaty for the Affairs opin- The district court correctly distin- that, ing need to avoid a violation “[t]he guished grounds on two cases cited ... treaty ... undoubtedly a com- denying Government individuals’ free exer- interest,” pelling violation of the First, cise challenges drug laws. Convention would undermine the United sincerity of the Uniao do Vegetal faith and States’ leadership curtailing role in illicit the substantial burden the imposes CSA drug Yet, trafficking. speaks Mr. Dalton practice of the religion are uncon- only in the general regard- most of terms contrast, By tested. courts ing the other United in comply- States’ interest RFRA Convention, cases cited ing the Government the 1971 and he does have provide any plaintiffs found the specifics why about such beliefs are not compliance, religious, held, resulting burdening sincerely in the are not or are not freedoms, UDV’s represents substantially burdened by governmental the least restrictive means of furthering action. instance, Mey- According reading v. to the Government’s United States

For ers, LSD, who a criminal defendant involving precedent involving marijuana mari- to dismiss the moved under RFRA I listing enough, of DMT is Schedule him, we brought against juana charges proof alone and without further standing of the secular nature of Mr. light held effects, to of adverse health demonstrate medical, therapeutic, on the Meyers’ views in a all compelling interest ban on hoasca marijuana, “Meyers’ and social benefits Rush, In in- use. United States v. accurately espouse philoso- beliefs more stance, Circuit, concluding the First way of life rather than a ‘reli- phy and/or has a interest Government ” Likewise, in at 1484. gion.’ 95 F.3d. banning possession and distribution of Rastafarianism, where involving eases marijuana notwithstanding the burden on sacrament, the Ninth Cir- marijuana is a found" religious practice, “Congress require did not religion cuit concluded the a con- weighed the evidence and reached distribution, intent to dis- possession with clusion which it is not this court’s task to tribute, money laundering, (1st review de novo.” 738 F.2d (9th Bauer, 1549, 1559 v. 84 F.3d States Cir.1984). The Rush court declined “to Cir.1996); marijuana, importation or the precedent.” the unanimous second-guess Guerrero, 1210, 1223 v. Guam Id. 512-13. Cir.2002). Bauer, (9th However, in court erred Ninth Circuit held the district Along with United States v. Oakland *15 using from prohibiting in the defendants Buyers’ Cooperative, 532 U.S. Cannabis possession simple RFRA as a defense to 1711, 483, 493, 121 S.Ct. 149 L.Ed.2d 722 charges. 84 F.3d (2001), Rush affirms courts should accord great Congress’ deference to classification Second, marijuana differ. hoasca and in the and “be cautious not to scheme CSA Marijuana problems is associated with control, leading courts to ascer v. legislation.” abuse and rewrite Marshall government States, 417, 427, 700, a interest its particular tain 414 U.S. 94 S.Ct. 38 uses. religious (1974). even for Unit prohibition L.Ed.2d 618 As the district court Greene, F.2d 456-57 ed States v. 892 present acknowledged, leg- in the case Cir.1989) (6th court that (“Every federal placement of materials islative branch’s accepted this issue has has considered I reflects a containing DMT Schedule marijuana Congress’ determination finding high poten- such substances have health and poses a real threat to individual currently accepted and no tial for abuse upheld pen criminal social welfare use, if safety and lack even used medical possession for and distribution even alties 21 supervision. U.S.C. under medical may infringe to some penalties where such 812(b)(1). Nevertheless, through § religion.”). on the free exercise of extent RFRA, courts to con- Congress mandated observed acknowl As D.C. Circuit of the bur- application sider whether the legality of the Native American edging the in furtherance of a den to the claimant “is to peyote refusing but Church’s use interest.” compelling government marijuana, religious exemption grant 2000bb-l(b). recitation of Mere U.S.C. occurs in Vegetal’s Uniao do use of hoasca findings general danger of a Congressional “traditional, circumscribed ritu precisely satisfy RFRA. is insufficient object an drug al” where the “itself is several addi- The Government advanced worship” using the sacrament outside interests: the uniform tional religious sacrilege. context is a Olsen CSA, (D.C.Cir. the need to avoid DEA, application v. 1989). supervi- official burdensome constant management Vegetal, of Uniao do gave

sion and ment the Native American Church a opening possibility and the the door to legislative categorical exemption, RFRA religious exceptions. for myriad claims rests the outcome on the government’s arguments were raised Averring these proof. only provides RFRA access to the appeal, urged time on us not the first courts, placing on the the bur- McDonald v. Kinder- to consider them. den of justifying religious ban on a use (10th Inc., 287 F.3d Morgan, Cir. of a controlled substance. protec- Federal 2002)4 (“[A]bsent extraordinary circum peyote RFRA; tion of existed well before stances, arguments not consider we will protected the statute the Native American appeal. for the first time on raised This only prosecution. Church from state appellant an is attempting true whether Second, relatively unproblematic new issue’ or ‘a raise ‘a bald-faced new peyote regulation state of and use belies that falls under the theory appeal same the Government’s claimed need for con- general category argument present supervision stant official Vege- of Uniao do (citation ”) omitted). ed at trial.’ We do consumption. tal’s hoasca The DEA does not the Government’s additional believe closely monitor the Native American compelling interests constitute “bald-faced use, peyote Church’s guard the mountains new or a “new Rath issue[s]” theories].” peyote grown, Texas on which nor er, finding they fall into the general same monitor the peyote distribution of outside category arguments raised below re of Texas. its legalization Since for use garding interpretation of the CSA and the Native American Church in pey- diversion, risk of we address them. extremely ote remains low on the list of conclude the We Government’s abused substances. While thus far the alleged compelling additional interests are relationship between Uniao do First, unavailing. we do uni not believe adversarial, the DEA has been allowing an application form of the CSA warrants de exemption might use lead to a *16 exemption Vege nial of an for Uniao do cooperative relationship similar to the one tal’s sacramental hoasca consumption. government between the and the Native above, For reasons stated cases involving American Church. Regardless, the Gov- heroin, marijuana, and LSD are distin ernment cannot by alleg- overcome RFRA guishable. argued The Government the ing an increased need for resources. existence of the 1994 amendment to the Third, the specter of a slew of claims for Act, American Religious Indian Freedom religious exemptions to the CSA does not providing statutory a exemption from state a compelling evince interest under RFRA. prosecution of Native American Church’s ruling present Our in the appeal way in no use, peyote indicates RFRA alone could calls question into refusing grant cases exemption sustain an for ceremonial Likewise, exemption an peyote. argued marijuana, the CSA for the Govern ment, LSD, heroin, RFRA cannot here support a or hoasca other controlled sub- But, exemption. while the 1994 amend- distinct, stances. position UDV’s and as tribes, ground 4. UDV offered an alternative rendering Vegetal on the Uniao do and we can affirm the district which court's re Native disparately American Church situated equal protection. despite sult: Because the religious practice. Native in Pey similarities peyote protected, Way Church’s use of American ote Thornburgh, Church God v. 922 of 1210, Vegetal's (1991) (Fifth so should Uniao do too use of hoas- F.2d holding Circuit disagreed, court disparate ca. The district and we af the treatment of Native American noted, firm. the our peyote religion justified As has government's the special relationship Americans). a relationship with Native American trust with Native religious legitimate at the est unburdened ex we have looked requires, RFRA Vege- of Uniao do the critical specific pression. circumstances evidence Given hoasca use assessed alleged tal’s ceremonial support the Government’s com compelling in- Government’s asserted equipoise” “in pelling interests was need not terests. we consider While balanced,” “virtually agree we with the vacuum, the bald assertion of a a CSA district court that UDV demonstrated exemptions does not torrent of public the balance harms and interest RFRA burden. satisfy 02-2323, the Government’s in their AFFIRM. tip favor. We No. Moreover, open possibility we leave Espirita O Centro Un Beneficiente of the health effects that future evidence Vegetal iao do v. Ashcroft may allow the Gov- potential and diversion a interest prove ernment to MURPHY, Judge, dissenting. Circuit enforcing against the CSA hoasca’s sac- majority preliminary affirms a in- ramental use. junction the United prohibiting States1 enforcing from the Controlled Substances III. Conclusion (“CSA”), Act seq., U.S.C. 801 et reasons, juncture, at this we For these thereby placing the United States in viola- hold UDV has demonstrated substantial tion of the Nations Convention likelihood of success on claim for Substances, 21, Psychotropic Feb. exemption for sacramental to the CSA (the “Convention”), 32 U.S.T. 543. Be- find the other hoasca use. We conditions majority wrong cause utilizes stan- granting preliminary pres- for determining dard in whether 0 Centro plaintiff ent as well. Because “a satisfies Espirita Beneficíente Uniao analysis by irreparable alleging harm (“UDV”) necessary showing has made Kikumura, RFRA,” violation injunction, obtaining preliminary irreparable harm we conclude pre- because UDV has not shown injunction is requirement for a liminary weigh heavily factors harms satisfied. the balance On favor, I respectfully in its compellingly interest, adversity public we dissent. recognize importance enforcement laws, including the New of criminal CSA. Improper Preliminary I. Standard Co., Motor Vehicle Board v. Orrin W. Fox Injunction 434 U.S. 98 S.Ct. *17 that The United asserts the dis- States (1977) (in involving a case L.Ed.2d 439 in granting trict court abused its discretion enforcement of the California Automobile injunction a it preliminary because Act, noting Franchise a state “suffers See improper utilized standard. SCFC injury” any it form of time “is irreparable Inc., ILC, USA, Inc. v. 936 Visa F.2d enjoined by effectuating a court from stat- (10th Cir.1991) (“We will set 1098 aside by representatives peo- utes enacted of its if the preliminary injunction district court Nevertheless, ple”). as RFRA —a statute deciding when applied wrong the standard the representatives people enacted to by injunction grant preliminary the mo- acknowledges, protect religious freedom — tion.”). In the United States particular, harm ensues from the denial free exer- the in- significant preliminary has a inter- asserts that because public cise the capacity. defendant-appellants Each this his official 1. of the in is in case an officer of the States sued the requested by may ultimately UDV alters sta- in junction ships be found be district court should have parties’ the or not in quo, tus accord accord with the balance, to “show that required UDV legal rights. [preliminary injunction] factors the four (footnote omitted). Id. at 1100 in heavily and fa- weigh compellingly [its] the clear and lan- Despite unambiguous majority’s Id. at The re- vor.” guage in SCFC defining ILC the status (1) argument to this is two-fold: sponse quo by reference to the reality last uncontested between the “the status existing parties’ relationship, status and as plaintiffs’ was the uninhibited exer- parties opposed parties’ the legal rights, faith,” Op. at Majority their cise of majority quo concludes that the status (alteration (2) original); UDV’s es- this case should be refer- measured with prima of a case under tablishment facie i.e., parties’ ence the litigation positions, Freedom Act Religious the Restoration whether UDV established the existence the conclusions that the status “buttresses prima case under RFRA. See Ma- facie quo here is not the need to enforce the at jority Op. majority, 1178-79. The like practice but rather CSA UDV’s proponent preliminary injunc- the the governmentally imposed from a bur- free ILC, tion in SCFC has ‘what “confuse[d] den,” the id. at 1179. Neither of reasons ” with should be’ ‘what is.’ F.2d at posited by majority concluding the that doing, 1100. In majority so the has carved of hoasca quo the status favors UDV’s use following special out the RFRA rule in convincing. is quo cases: the status irrelevant ante is majority’s conclusion that status proponent when the of an case on the mer- quo contingent in this is evidence establishing prima submitted clearly RFRA claim its of UDV’s is rule, case under RFRA. special This facie binding prece- with Tenth odds Circuit however, is at odds with See In SCFC ILC. ILC, proponent dent. In SCFC of a Smith, (10th Cir.1993) re preliminary injunction argued curiam) (“We (per cannot overrule by the dis- entered judgment of panel another this court. preserved quo trict court be- status by precedent We are bound of prior it was afforded cause entitled to the relief panels absent en banc reconsideration or a under vari- preliminary injunction superseding contrary by decision the Su- ous federal and state 936 F.2d at laws. Court.”). preme rejected 1099. This explicitly Nor the majority asserting correct in contention that- the is measured quo status quo that the status this case UDV’s parties’ legal holding rights, use govern of hoasca because it was the

follows: ment’s enforcement of the that was CSA MountainWest confuses “what should impetus present litigation. for the be” “what is.” [Plaintiff] While Op. at Majority 1178. As noted may eventually convincing succeed in panel stayed pre district court’s merits, court, the district on the to order *18 liminary pending the appeal, it, to Visa issue the a final cards to quo status this case is the enforcement unquestion- decision so holding would of and compliance the CSA with the Con ably alter the quo. status The status vention. See O Centro quo Espirita not by parties existing defined Benefi (USA), ciente rights; Uniao De Inc. v. legal it by reality is defined (10th Cir.2002). Ashcroft, F.3d existing relationships status and between the parties, regardless of The record makes clear that both the UDV whether the relation- existing recognized status and itself and the United States consumption Finally, attends them.” when UDV at- importation that tempted grow psychotria violated the CSA. viridis and hoasca States, banisteriopsis caapi in the United a concerted effort to The UDV has made it the seeds and imported plants “clandes- importation secret their and use of keep UDV, tinely,” by in the words used forms, import hoasca. On relevant required sign its members to confidentiali- general- officials in the United States UDV ty agreements keep attempts their se- tea”; referred to hoasca as an “herbal ly by plaintiff cret. All of these actions UDV or they ayahuasca never called it hoasca or recognition importa- demonstrate a that its it disclosed that contained DMT. UDV consumption tion and of hoasca violated Jeffrey Bronfman informed cus- president Likewise, when the United CSA. im- being toms brokers that the substance importing States realized that UDV was a extract” to be used ported was “herbal DMT, preparation contained it which a “health by supple- UDV members as shipment quanti- seized that and additional Furthermore, ment.” in an e-mail drafted preparation ties of the found a search of Bronfman, the need for emphasized he Accordingly, Bronfman’s residence. al- confidentiality regarding UDV’s “sessions” though eventually sought prelimi- a yet not involving people hoasca: “Some injunction after nary the seizure confidentiality realize what is and how leading up at all times to that careful we need to be. should not People the record reveals that the status talking publicly anywhere be about our event sessions, enforcement quo where we have them and who was the CSA.2 (10th Cir.2001). Majority Op. baldly appeal in its brief on See at 2. UDV asserts Valdez, plaintiffs 1177-78. In had been litigation quo' 'status before this "[t]he that grazing Grazing their cattle in the Rio Puerco plaintiffs possessed that the their sacra- was District, 500,000 plot acre land encom- practiced religion. ment and their Defen- federal, state, passing private lands. 616 changed quo, dants' conduct the status government adopted at F.2d 571. The federal quo.” UDV at did not create the status Brief grazing program a revised which reduced the theory, any party Under this could 53-54. plaintiffs’ ability graze their livestock. Id. by surreptitiously quo the status en- establish sought plaintiffs promptly gaging that a statute until in behavior violated claiming grazing that the revised discovered law enforcement authorities program contrary in sever- was to federal law claiming and then that it is the enforcement facts,, certainly respects. Id. On these it is al existing change that amounts to a law surprising this court determined that the quo. might the status UDV’s assertion have quo grazing program in effect status was the persuasive openly import- some force if it had prior government's proposed revisions. ed and consumed hoasca and the United The same is true in Dominion Video. In acquiesced those actions States had case, parties ongoing had an business period changing of time course and before relationship, been acti- wherein EchoStar had enforcing the CSA. Under the facts of this Sky vating Dominion to receive customers case, however, UDV’s is meritless. assertion Angel programming four-year satellite over Unfortunately, majority signs off on question period, despite a serious whether argument it law of this UDV's and makes contractually obligated to do EchoStar was Majority Op. simply at I circuit. See 1178. When EchoStar de- so. 269 F.3d importation UDV’s and use of fail to see how clined to activate further Dominion cus- hoasca can be called “uncontested” when the tomers, brought immediately suit. Dominion importation not aware of the was rejected Id. EchoStar’s contention This court consumption of UDV's as a direct result four-day period declined that the in which it keep efforts to the matter secret. repre- further Dominion customers to activate reason, majority can take no quo, holding For this follows: sented the status *19 Applegate, imply "Adopting position comfort in v. 616 F.2d would EchoStar’s Valdez (10th Cir.1980) quo any party could create a status or Dominion Video Satel that new litigation merely hy immediately preceding the Corp., v. lite EchoStar Satellite inju- the threatened recog- junction not factors —that district court did the Because injury ry outweighs to it the to the United injunction re- preliminary the nize that preliminary injunction the States under alter the status would quested by UDV injunction not and that the is adverse carry require UDV to the quo, it failed weigh heavily and public the that demonstrating the burden onerous interest — compellingly in its favor. injunction weigh factors preliminary four in its favor. Ac- compellingly heavily and by staying As noted this court the court abused its dis- district cordingly, the injunction pending appeal, the preliminary injunc- preliminary the issuing cretion irreparable injury suffers United States ILC, That 936 F.2d at 1100. enjoined enforcing tion. SCFC from its when it however, compel a conclusion, does not Espirita, criminal laws. O Centro the district court. Because (citing remand to the F.3d at 467 New Motor Vehicle Bd. Co., 1345, 1351, sufficiently case is well de- record in this v. Orrin W. Fox 434 U.S. (1977) (Rehn for this court to 54 L.Ed.2d 439 appropriate it is 98 S.Ct. veloped, Justice)). quist, injury has satisfied its This whether UDV Circuit determine fact demonstrating prelimi- by that the States is exacerbated United burden any injunction by issued weigh heavily preliminary factors and that nary injunction court, by the district as illustrated in its favor. Id. compellingly im obligations numerous conditions and Injury and Public Inter- Balance of II. prelimi posed on the United States est injunction nary actually issued the dis court, require trict would burdensome and concerning reservations I have serious supervision oversight constant official majority’s conclu- the district court’s handling of UDV’s and use hoasca.3 Id. carry the United States did sion that (collecting examples). cases and UDV has demonstrating that the prohi- its burden demonstrating not carried its burden of consuming or against importing bition balancing injury that the of its with that of its interests hoasca furthers government weighs heavily and com health of members protecting the UDV in its favor. pellingly of hoasca to non- preventing diversion unnecessary Furthermore, It to reach Congress specifically uses. however, importation consump- because UDV that questions, those found demonstrating is adverse to carry did not its burden tion controlled substances 801(2) in- interest. preliminary public third and fourth U.S.C. cursory changing par- conduct toward the adverse 3. Even a review of the district court’s its added). ty." (emphasis Id. page, paragraph preliminary thirty-six eleven above, length legiti- it cannot As noted at majority’s belies the assertion that argued government mately be alters, preserves, quo. it rather than the status “changed conduct” toward UDV. Both the its above, length prior As noted at to the district consistently government and UDV have un- entry preliminary injunction, court’s consump- importation derstood that surreptitiously importing UDV was hoasca violates both the Convention and tion of DMT knowledge violating with the clear that it was CSA. The United States did not take process. court's the CSA in district against previous enforcement action enjoins en- modifies or only hiding its because UDV was successful staggering regula- forcement of a number of illegal as the conduct. As soon CSA, implementing tions with the result activities, illegal UDV’s it became aware of actually being must set that the States seized the and enforced the CSA.This hoasca importation UDV the of an about to aid entirely the situations in situation is unlike supply unlimited of hoasca. and Dominion Video. Valdez *20 manufacture, (“The III. of the dis- Violation illegal importation, Convention tribution, improper and use possession and Finally, argues the con United States substances have a substantial of controlled injunction vincingly preliminary that a re the effect on health and detrimental quiring it to violate the Convention could American people.”); welfare of the general seriously impede ability its gain to the 801a(l) (“The Congress long § has rec- id. cooperation of other nations in controlling involved in the manu- ognized danger the of illegal drugs. international-flow See facture, distribution, use certain 801a(l) (“Abuse § psychotrop U.S.C. ..., pro- has psychotropic substances phenomenon ic substances has become a strong legislation and effective to vided many common to countries ... and is not trafficking regulate control illicit and to is, confined to national borders. It there legitimate psychotropic uses of substances fore, essential that the coop United States fact, In country.”). in this the district erate with other nations in establishing specifically found that the evidence effective controls over international traffic equipoise substances.”); was in as to the risk of diversion in such see also O Centro non-religious purposes of hoasca to and Espirita, 314 at (noting F.3d that fed danger complications flowing of health eral courts should be reluctant to second consumption by from hoasca mem- guess regarding UDV the executive the conduct affairs). Although bers. this led the district court of international to conclude that the United States had not majority The fails consider this factor demonstrating carried its burden of that in determining whether UDV carried in the against restrictions CSA establishing its burden of its éntitlement to importation consumption of hoasca because, a preliminary accord- compelling furthered the States’ ing majority, to the even assuming the that, concomitantly, interests and govern- Convention does cover substantially likely prevail was on the ment failed to demonstrate that such an Religious merits of its Freedom Restora- narrowly interest must “be tailored to the claim, tion Act the United States has no specific plaintiff whose conduct is steps such burden at the third and fourth Majority impaired.” Op. 1184. What preliminary injunction analysis. of the At realize, majority apparently the. fails to it that stage, this is UDV must demon- however, meaning is that the of the Con- heavily compellingly strate only regard vention is relevant not with requested injunction is not ad- preliminary injunction factor, the first like- In public light verse to interest. of the merits, lihood of success on the but also congressional findings noted above and the regard prelim- to the third and fourth equipoised parties’ factors, nature of the evidentia- inary injunction balancing submissions, ry UDV has not met bur- adversity its harms and the public den. interest.4 clear, Although quite majority's simply wrong asserting it is not that there is opinion proposition could be read to state the kind of inherent conflict between RFRA and government's complying that the interest in Although prohibits the Convention. RFRA obligations with its under the are Convention burdening person's from obligations not because those con- religion exercise of unless the burden furthers government's obligations flict with the under interest, compelling governmental it does Op. majori- Majority RFRA. at 1183-84. The attempt not to define which interests are com- ty further to assert that RFRA seems because pelling. (providing U.S.C. 2000bb-l enacted was after Convention was rati- government may substantially fied, thereby the Convention is nullified to the person's religion burden a exercise of unless majority extent it RFRA. Id. conflicts with *21 Accordingly, subject the hoasca is to the same court concluded that The district pure, sep- DMT in a applicable controls between a “sub- distinguishes Convention arated form. psychoactive compo- the in which stance” “separated” not from but derived nent is to be have appears The district court source, “substance,” versus a plant the by on Article astray been led UDV’s focus psychoac- form of the purified a that which is 32 of the Convention and its assertion Because, according supports proposition to the dis- Article 32 the that drug. tive may receive different treatment court, psychotria plants like viridis plants trict components contained Convention, than the chemical the neither by covered are not plants. plants the Whether are within from beverages” made are “infusions Convention, however, the is covered if the infusion or bever- plants, even such import irrelevant. does not seek to psychotropic I contains a Schedule age DMT; rather, plants use that contain conclusion, this the reaching In chemical. a import, possess, it seeks to and consume exclusively on court relied almost district plant a that preparation made from such Commentary on the 1976 Nations produce than to can have no use other Psychotropic Sub- the Convention state, in a sacramental drug-induced albeit (the The “Commentary”). district stances event, any simply context. In UDV is the interpretation of Convention court’s sup- in that Article asserting incorrect Commentary on the is and its rebanee that not a ports its assertion hoasca is fundamentaby flawed. by the be- preparation covered Convention a “preparation” defines The Convention Article plant. cause it is derived from mixture, or in whatever “any as solution provides as fobows: state, containing psy- one or more physical territory are A State on whose there substances, one or more chotropic [ ] or psy- which contain plants growing wild in dosage form.” psychotropic substances chotropic among substances from those 1(f) (em- 543, Convention, Art. 32 U.S.T. traditionally in I Schedule and which are added). clearly fits within phasis Hoasca smab, clearly used certain deter- It is plain language of this definition. mined in or groups magical state, mixture, liquid a solution or in a rites, may, signature, time of rati- substance containing psychotropic accession, fication make or reservations provides DMT. The Convention further concerning plants, respect these subject that “a to the same preparation is provisions except of article for the psychotropic measures of relating control as to international provisions 3(1). Id. Art. trade. [5] substance which it contains.” circumstances, person application of the burden to that In those it cannot be said that compelling governmental governmental compelling. both in furthers interest is question governmental terest and does so in the least restrictive man ner). of whether a in a deci- What RFRA does do is set out compelling wholly independent terest is which a court is to sional framework within question flowing from whether burden apply prior existed to the Su law it the advancement of that interest fits within preme Employment Court's decision in Divi apparently the contours of RFRA. In conclud Smith, sion v. 494 U.S. 110 S.Ct. ing comply government’s that the interest (1990). 108 L.Ed.2d 876 Under this decision ing compelling with the Convention is not framework, certainly possible it that the al RFRA, is “in because it conflict” compelling can advance inter majority compounded its error. support est action that burdens a obligates signa- 5. Article 7 of the convention person’s religion, gov exercise of but that the tory prohibit nations to all uses of Schedule I enjoined ernmental action will still need to be substances, very excep- with certain limited because it will not be the least restrictive here, prohibit the advancing tions not relevant and to means of interest. 32(4). 801a(l) Convention, Ar- findings 32 U.S.T. Art. sional 21 U.S.C. make clear actually cooperation international suggests plants ticle 32 are *22 compliance with the Convention is essen- Convention, by the inasmuch as covered tial in providing effective control over the requires signatories Convention cross-border flow of such substances. make reservations in order to allow their UDV has not carried its burden of demon- use. Article 32 also makes clear that even strating heavily compellingly that its reservation, if signatory makes a interna- interest the use of sacramental hoasca trafficking plants tional such is still pending the resolution of the merits of its prohibited by the Convention.6 complaint outweighs resulting the harm 7, plain language coupled The of Article the United States from a court order man- the conforming interpretation of the dating that it violate the Convention. Nor by Department, Convention State dem- it heavily has shown and compellingly that preparation onstrates that hoasca ais cov- such is not adverse to the by congres- ered the Convention.7 The public interest. import export preparation of those substances. Con- op whether a like as vention, 7, viridis, Art. 32 U.S.T. 543. It bears em- posed plant psychotria is cov however, 32, phasizing, that Article which ered the Convention. Because the Com signatory allows to make a reserva- nations mentary negotiators was not written or regard plants tion with to the use of certain Convention, signatories to the it is not the sort rites, psychotria like viridis does “negotiating drafting history” "pos- or signatories opt require- not allow out of the understanding contracting tratification they prohibit import export ment that or parties” traditionally that courts have used as 32(4). plants. of those Id. Art. signatories' evidence of the intent. See Zich Co., 217, erman v. Korean Air Lines 516 U.S. “preparation''

6. Because the definition of 226, 629, (1996). 116 S.Ct. 133 L.Ed.2d 596 unambiguous, obligat- clear and this court is hand, interpretation On the other of an give ordinary meaning ed to it its absent treaty by agen international the United States “extraordinarily strong contrary evidence.” cy charged negotiation with its and enforce Am., Shoji Avagliano, Sumitomo Inc. v. "great weight” ment is entitled to from the 176, 185, U.S. 102 S.Ct. 72 L.Ed.2d Oregon, courts. Kolovrat v. 366 U.S. (1982). Nevertheless, the district court (1961). 81 S.Ct. 6 L.Ed.2d 218 The ignored unambiguous that clear and lan- Department interpreted State the Conven guage language in favor of in the Commen- preparations tion to cover such hoasca. tary appearing beverages to indicate that Department's interpretation The State is con plants containing infusions made from hallu- plain language sistent with the of the Conven cinogenic substances do not fall within the obliged tion and this to accord it Commentary Convention. The *23 Ogle and Anita MIDKIFF In re David Midkiff,

Joyce Debtors. Joyce Ogle Midkiff and Anita

David

Midkiff, Appellants,

v. Stewart, Chapter

Mark R. Trustee, Appellee.

No. 02-8004. Appeals, Court

United States

Tenth Circuit.

Sept. notes plant ... deference. "[n]either roots of the Mimosa Psilocybe hostilis nor mushrooms themselves reasons, I, 7. For these the district court erred in only are included in Schedule but their re- spective principles.” concluding Commentary compliance active at with the Conven- footnotes, Commentary two In ob- compelling tion does constitute interest. generally Nevertheless, serves that “[a]n infusion of roots is because this case can be re- used” to consume Mimosa hostilis and that solely carry solved based on UDV's failure to "[b]everages ... are used” to consume Psilo- prelimi- its burden under the third and fourth cybe mushrooms. Id. at 387 nn. 1227-28. factors, nary injunction I see no need to re- analyze mand the case to the district court to Commentary does not constitute ex- whether the restrictions contained in the CSA traordinarily strong contrary evidence. It author, furthering are the least restrictive means of by single published was drafted five years the United negotiated, after the States' interest in com- Convention was is, most, ambiguous question plying on the with the Convention. Conclusion IV. above, I would set out reasons For those pre- entry court’s the district reverse Ac- in favor of UDV. liminary dissent. respectfully I cordingly,