     Case: 13-40326   Document: 00512739700    Page: 1   Date Filed: 08/20/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                  Fifth Circuit

                                                                      FILED
                                                                   August 20, 2014
                                No. 13-40326
                                                                   Lyle W. Cayce
                                                                        Clerk
MC ALLEN GRACE BRETHREN CHURCH; NATIVE AMERICAN NEW
LIFE CENTER; SAN ANTONIO INDIAN FELLOWSHIP; SOUTH TEXAS
INDIAN DANCERS ASSOCIATION; LINDA CLEVELAND, Individually;
MICHAEL CLEVELAND, Individually; EDITH CLARK, Individually and as
council member of Native American New Life Center; WILLIAM CLARK,
Individually and as member of Native American New Life Center; CARRIE
FELPS, Individually; HOMER HINOJOSA, Individually and as member of
McAllen Grace Brethren Church, San Antonio Indian Fellowship, and South
Texas Indian Dancers Association; NANCY HOLLINGWORTH, as a member
of Native American New Life Center; LUCIAN ODEN, as a member of San
Antonio Indian Fellowship; XAVIER SANCHEZ, as member of San Antonio
Indian Fellowship; PASTOR ROBERT SOTO, Individually and on behalf of
McAllen Grace Brethren Church, Native American New Life Center, San
Antonio Indian Fellowship, and South Texas Indian Dancers Association;
VERONICA RUSSELL; MICHAEL RUSSELL, Individually,

                                         Plaintiffs - Appellants
v.

KEN SALAZAR, Secretary of the United States Department of the Interior,

                                         Defendant - Appellee




                Appeals from the United States District Court
                     for the Southern District of Texas


Before JONES, ELROD, and HAYNES, Circuit Judges.
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                                 No. 13-40326
HAYNES, Circuit Judge:
      Appellants filed suit against the Department of the Interior (the
“Department”) seeking a declaration of rights that the Department’s
enforcement of the Migratory Bird Treaty Act (the “MBTA”) and the Bald and
Golden Eagle Protection Act (the “Eagle Protection Act”) violates the Free
Exercise Clause of the First Amendment and the Religious Freedom
Restoration Act (“RFRA”) because it prohibits American Indians who are not
members of federally recognized tribes from possessing bald and golden eagle
feathers. The district court granted the Department’s motion for summary
judgment, finding that the Department’s implementation of the Eagle
Protection Act was narrowly tailored to a compelling governmental interest.
Because we find that the Department did not provide sufficient evidence that
the policy of limiting permits for the possession of eagle feathers to members
of federally recognized tribes survives the scrutiny required by RFRA, we
REVERSE the district court’s grant of summary judgment and REMAND for
proceedings consistent with this opinion.
                     I. Factual and Procedural Background
      In 2006, Appellants Michael Cleveland, Robert Soto, and Michael Russell
attended an American Indian religious ceremony, known as a powwow, where
eagle feathers were in the possession of and worn by its participants. An agent
of the United States Fish and Wildlife Service attended the powwow and
noticed that Cleveland was selling “dream catchers” bearing bird feathers.
Cleveland’s feathers were confiscated, and he faced criminal charges for the
unlawful possession, sale, offer to sell, or transportation of migratory birds or
their parts without a permit in violation of the MBTA, 16 U.S.C. § 703. The
Appellants do not challenge his criminal conviction.
      Soto and Russell, powwow participants, were also in possession of eagle
feathers. Russell, who admitted that he was not an American Indian, was
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                                     No. 13-40326
issued a Notice of Violation under the Eagle Protection Act for possession of
eagle feathers without a permit, and the feathers in his possession were seized.
Soto identified himself as a member of the Lipan Apache Tribe. After the agent
determined that the Lipan Apache Tribe is not federally recognized, he set up
a meeting with Soto and Russell, during the course of which they both signed
voluntary abandonments, abandoning the feathers they possessed, and Russell
agreed to pay the fine associated with his Notice of Violation. In exchange,
there was no further criminal investigation.
      Soto filed a petition with the Department for the return of his property.
It was denied, along with his supplemental petition, because Soto is not a
member of a federally recognized tribe—a prerequisite for obtaining a permit
for possession under the Eagle Protection Act according to regulations
promulgated by the Department. See 50 C.F.R. § 22.22(a) (2012).
      The Plaintiffs filed this action in the United States District Court for the
Southern District of Texas, claiming that the confiscation of the feathers
violated the Free Exercise Clause of the First Amendment. This case was
stayed for several years during the pendency of a parallel criminal proceeding
involving Cleveland and an administrative proceeding involving Soto. After
the stay was lifted, the Plaintiffs amended the complaint, naming the
Department as the sole defendant.               The parties filed cross motions for
summary judgment, and the district court granted the Department’s motion.
The Plaintiffs appealed.
                     II. Statutory and Regulatory Background
      The MBTA was enacted in 1916 to implement a convention between the
United States and Great Britain. 16 U.S.C. § 703(a). 1 It prohibits the harming,



      1  The statute has been subsequently amended to reflect similar treaties with Mexico
(1936), Japan (1972), and the former Soviet Union (1976).
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                                       No. 13-40326
selling, or possessing of migratory birds or their parts.                 Id.    Section 704
authorizes the Department to permit takings of migratory birds when it is
compatible with the terms of the various conventions.
       The Eagle Protection Act was passed in 1940 in order to protect the bald
eagle from extinction because it is “a symbol of the American ideals of freedom.”
76 Pub. L. No. 567, 54 Stat. 250 (1940). The statute itself prohibits the taking,
possession, sale, barter, purchase, transport, export, or import of bald eagles
or golden eagles or any parts of bald eagles or golden eagles, except as
permitted by the Secretary of the Interior. 2 16 U.S.C. §§ 668, 668a (2012). The
statute initially did not apply to golden eagles, nor did it contain exceptions for
American Indian tribes. See United States v. Dion, 476 U.S. 734, 740–41
(1986). In 1962, the statute was amended to protect the golden eagle, and at
the same time, was amended to provide an exception “for the religious purposes
of Indian tribes.” § 668a; see also Dion, 476 U.S. at 741–43. Section 668a
grants the Secretary of the Interior broad authority to authorize the taking of
eagles or eagle parts for the purposes of public museums, scientific societies,
zoos, Indian religious uses, wildlife protection, agricultural protection, and
“other interests”—provided the grant of the permit is compatible with the
preservation of the eagles. 3
       Congressional hearings held over the addition of the golden eagle made
clear that golden eagles are important for the religious practices of many


       2 Permits are not required for bald eagle parts, nests, or eggs acquired prior to June
8, 1940, or for golden eagle parts, nests, or eggs acquired prior to October 24, 1962. 50 C.F.R.
§ 22.2.

       3 The regulations promulgated by the Department to enforce the statute further
indicate that eagles or eagle parts possessed pursuant to a valid permit may not be
transferred unless they have been “handed down from generation to generation or from one
Indian to another in accordance with tribal or religious customs.” 50 C.F.R. § 22.22(b)(1)
(2012).

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                                       No. 13-40326
American Indian tribes. 4 Dion, 476 U.S. at 741–743. When first enacted, the
regulation stated that when “the taking and possession of bald or golden eagles
for the religious purposes of Indian tribes is compatible with the preservation
of such birds, [the Secretary] may issue permits for such taking and possession
to those individual Indians who are authentic, bona fide practitioners of such
religion.” 50 C.F.R. § 11.5 (1966) (emphasis added). When the Code of Federal
Regulations was amended and restructured in 1974, the permitting system
required applicants attach a certification from the Bureau of Indian Affairs
that the applicant is an Indian, but it did not specify that the individual had
to be enrolled in a federally recognized tribe. 5 50 C.F.R. § 22.22 (1974). The
Department of Justice has interpreted the regulation as limiting the permits
to members of federally recognized tribes since release of the “Morton Policy”
in 1975, which “clarif[ied] the Department of the Interior’s responsibilities and
intentions” regarding the enforcement of the Eagle Protection Act. Rogers C.B.
Morton, Secretary of the Interior, Policy Statement on Indian Use of Bird


       4 By way of background, we observe that Assistant Secretary of the Interior Frank
Briggs wrote a memo to Congress stating:
       The golden eagle is important in enabling many Indian tribes, particularly
       those in the Southwest, to continue ancient customs and ceremonies that are
       of deep religious or emotional significance to them.
       .. .
       There are frequent reports of continued veneration of eagles and of the use of
       eagle feathers in religious ceremonies of tribal rites. . . . In the circumstances,
       it is evident that the Indians are deeply interested in the preservation of both
       the golden and the bald eagle. If enacted, the bill should therefore permit the
       Secretary of the Interior, by regulation, to allow the use of eagles for religious
       purposes by Indian tribes.
Dion, 476 U.S. at 741–42 (citation and internal quotation marks omitted).

       5 While a Certificate of Degree of Indian Blood requires an individual to demonstrate
a blood relationship to ancestors who were or are members of enrolled tribes, it does not grant
membership to the tribe, nor does it require the individual actually be enrolled as a member
of a federally recognized tribe to obtain the certificate. BUREAU OF INDIAN AFFAIRS, OMB
Control. No. 1076-0153, Certificate of Degree of Indian or Alaska Native Blood Instructions,
available at http://www.bia.gov/idc/groups/public/documents/text/idc002653.pdf (last visited
March 3, 2014).
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Feathers (Feb. 5, 1975), available at http://www.justice.gov/ag/ef-policy.pdf
(last visited July 25, 2014). However, it was not until 1999, over three decades
after the amendment was enacted, that the Secretary promulgated regulations
requiring that individuals seeking permits must demonstrate that they are
members of federally recognized Indian tribes. 50 C.F.R. § 22.22(a)(5) (2000).
       Once an American Indian receives a permit from the Secretary, the
permit is forwarded to the National Eagle Repository in Colorado, which
receives dead eagle parts and distributes them to qualified permit applicants
on a first-come, first-served basis. According to the evidence on record, whole
bird orders take approximately three and a half years to fill, and loose feather
orders take approximately six months to fill.
                                      III. Standing
       Before reaching the merits, we must first consider whether the claimants
have standing to bring suit in federal court. It is undisputed that none of the
claimants applied for a permit with the Department. However, standing has
been found despite failure to apply for a benefit if doing so would have been
futile. Ellison v. Connor, 153 F.3d 247, 255 (5th Cir. 1998). The Department
denied Soto’s request to have his feathers returned to him because he could not
qualify for a permit as he is not a member of a federally recognized tribe. It is
further undisputed that the Plaintiffs would not qualify for a permit because
none of them are enrolled in federally recognized tribes. Additionally, Soto
does allege a personal injury that is traceable to the Department’s conduct: his
feathers were confiscated by the agent at the powwow. 6 See Roark & Hardee



       6 While Russell was in possession of some of the feathers confiscated at the powwow,
the record indicates that the feathers actually belonged to Soto. Furthermore, the Plaintiffs
have not raised arguments concerning Cleveland’s criminal conviction, thus waiving those
claims. See Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003). Therefore, we do not
consider whether these Plaintiffs would have individual standing.

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                                     No. 13-40326
LP v. City of Austin, 522 F.3d 533, 542 (5th Cir. 2008) (plaintiffs must allege a
personal injury that is traceable to the defendant’s actions to have standing).
      It is well settled that once we determine that at least one plaintiff has
standing, we need not consider whether the remaining plaintiffs have standing
to maintain the suit. See Nat’l Rifle Ass’n v. Bureau of Alcohol, Tobacco,
Firearms & Explosives, 700 F.3d 185, 192 (5th Cir. 2012). Because Soto has
standing, we find sufficient standing for the Plaintiffs to challenge the
regulatory scheme. 7
                   IV. Applicable Law and Standard of Review
      We review the district court’s grant of summary judgment de novo.
Terrebonne Parish Sch. Bd. v. Mobil Oil Corp., 310 F.3d 870, 877 (5th Cir.
2002). Summary judgment is appropriate if the moving party shows there is
“no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a).
      When Congress enacted RFRA in 1993, it did so explicitly to create “a
statutory prohibition against government action substantially burdening the
exercise of religion.”      S. Rep. No. 103-111, 2 (1993), reprinted in 1993
U.S.C.C.A.N. 1892, 1893; see also Diaz v. Collins, 114 F.3d 69, 71 (5th Cir.
1997). RFRA was enacted to “restore the compelling interest test set forth in
Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972).”   42 U.S.C. § 2000bb(b)(1).         RFRA states: “Government shall not
substantially burden a person’s exercise of religion even if the burden results
from a rule of general applicability, except as provided in subsection (b) of this
section.” 42 U.S.C. § 2000bb–1(a). Subsection (b) provides that “Government


      7  While the Eagle Protection Act specifies that the religious exception is “for the
religious purposes of Indian tribes,” 16 U.S.C. § 668a, the actual permits are granted to
individual members of tribes, not to the tribes themselves. 50 C.F.R. § 22.22. The
Department does not argue that the statute or associated regulations create a group right
rather than an individual right.
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                                      No. 13-40326
may substantially burden a person’s exercise of religion only if it demonstrates
that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest.” 42 U.S.C. § 2000bb-1(b).
The compelling interest test is “a mixed question of fact and law, which is
subject to de novo review.” Garner v. Kennedy, 713 F.3d 237, 242 (5th Cir.
2013).
                                      V. Discussion
       The Department does not contest the Plaintiffs’ assertion that the Eagle
Protection Act substantially burdens their religious beliefs. Soto is involved in
a ministry that uses eagle feathers in its worship practice, and his sincerity in
practicing his religion is not in question. Furthermore, the eagle feather is
sacred to the religious practices of many American Indians. 8 Therefore, any
scheme that limits the access that Soto, as a sincere adherent to an American
Indian religion, has to possession of eagle feathers has a substantial effect on
the exercise of his religious beliefs. Cf. A.A. ex. rel. Betenbaugh v. Needville
Indep. Sch. Distr., 611 F.3d 248, 264 (5th Cir. 2010) (noting that complete bans
on religious conduct “substantially burden[] an adherent’s free exercise of that
religion” (citation and internal quotation marks omitted)). Importantly, once
the regulatory scheme has been shown to substantially burden a sincerely-held
religious belief, the burden is on the government to establish that the
regulation (1) advances a compelling government interest; and (2) is the least
restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b); see also
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014). We conclude




       8 We recognize that not all American Indian religions hold the eagle feather to be
sacred. However, for the sake of simplicity in this opinion, we refer to all American Indian
religions that hold the eagle feather sacred as “American Indian religions.”
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                                       No. 13-40326
that, on this record at this early, summary judgment stage, the government
did not discharge that burden.
A. Compelling Interests
               In Wisconsin v. Yoder, 406 U.S. 205, 215 (1972), the Court defined
a compelling interest as “only those interests of the highest order.” In Sherbert
v. Verner, 374 U.S. 398, 406 (1963), the Court stated that “[o]nly the gravest
abuses, endangering paramount interest, give occasion for permissible
limitation.”    (citation and internal quotation marks omitted). 9                We have
previously stated that, in determining whether a statute furthers a compelling
interest, “RFRA requires the government to explain how applying the
statutory burden to the person whose sincere exercise of religion is being
seriously impaired furthers the compelling governmental interest.” Tagore v.
United States, 735 F.3d 324, 330–31 (5th Cir. 2013) (citation and internal
quotation marks omitted); see also Merced v. Kasson, 577 F.3d 578, 592 (5th
Cir. 2009) (recognizing that the government must show that the challenged
law as applied to the claimant satisfies the compelling interest). Therefore,
“general statements of its interests” are not sufficient to demonstrate a
compelling governmental interest; rather, the interests need to be closely
tailored to the law. Merced, 577 F.3d at 592. Where a regulation already
provides an exception from the law for a particular group, the government will
have a higher burden in showing that the law, as applied, furthers the
compelling interest. Hobby Lobby, 134 S. Ct. at 2781–82; Tagore, 735 F.3d at
331.




        The Court has held that maintaining the tax system, Hernandez v. Commissioner,
        9

490 U.S. 680, 699 (1989), enforcing participation in the social security system, United States
v. Lee, 455 U.S. 252, 258–59 (1982), and protecting children’s welfare, Prince v.
Massachusetts, 321 U.S. 158, 166–67 (1944), all qualify as compelling interests.
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                                 No. 13-40326
      Against this backdrop, we consider the interests that the Department
argues are compelling: (1) protecting eagles and (2) fulfilling the government’s
“unique responsibility” to federally recognized tribes.
      1. Protecting Eagles
      We agree with the Tenth and Ninth Circuits that protecting bald eagles
qualifies as a compelling interest because of its status as our national symbol,
regardless of whether the eagle still qualifies as an endangered species. See
United States v. Wilgus, 638 F.3d 1274, 1285 (10th Cir. 2011); United States v.
Vasquez-Ramos, 531 F.3d 987, 991 (9th Cir. 2008).          In passing the Eagle
Protection Act, Congress specifically stated that the purpose was to preserve
the bald eagle because of its special status as our national symbol, 76 Pub. L.
No. 567, 54 Stat. 250 (1940), and in amending the Act, Congress stated that
protecting the golden eagle would further this purpose because the bald eagle
is often killed by persons mistaking it for the golden eagle, 87 Pub. L. No. 887,
76 Stat. 1246 (1962). Furthermore, the Supreme Court has suggested that
protecting migratory birds in general might qualify as a compelling interest.
Missouri v. Holland, 252 U.S. 416, 435 (1920) (referring to the protection of
migratory birds as “a national interest of very nearly the first magnitude”).
      2. Fulfilling Responsibilities to Federally Recognized Tribes
      The Department argues that there is a second compelling interest in
“fulfilling its unique responsibilities to federally recognized tribes.”      The
Supreme Court has long held that Congress’s constitutional authority to
“regulate Commerce . . . with the Indian Tribes” includes an obligation to
protect the interests of federally recognized tribes. Morton v. Mancari, 417
U.S. 535, 552 (1974) (quoting U.S. Const. art. I, § 8, cl. 3). Our sister courts
have found such an interest to be compelling in similar cases. See Wilgus, 638
F.3d at 1285 (“[T]he interest found compelling arises from the federal
government’s obligations, springing from history and from the text of the
                                       10
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                                       No. 13-40326
Constitution, to federally-recognized Indian tribes.”); 10 Gibson v. Babbitt, 223
F.3d 1256, 1258 (11th Cir. 2000) (same).
       We agree that Congress has the ability to protect the country’s
relationship with federally recognized tribes. Given the fact that Congress did
not define “Indian tribes” in this particular section, and the fact that the
Department’s approach has not been entirely uniform on this, we cannot
definitively conclude that Congress intended to protect only federally
recognized tribe members’ religious rights in this section. The Department
does not question the fact that Soto is a member of the Lipan Apache Tribe or
that he is the pastor of the McAllen Grace Brethren Church and the Native
American New Life Center. While the Lipan Apache Tribe is not federally
recognized, the Texas Senate has recognized the Lipan people as having lived
in Texas and Northern Mexico for 300 years and that they have had a
“government to government” relationship with the Republic of Texas, 11 the
State of Texas, and the United States government. 12 Tex. S. Con. Res. 438,
81st Leg., R.S. (2009). More importantly, the Department does not contest
Soto’s sincerity.
       We also note that the Supreme Court, has not embraced the concept that
such a relationship alone can justify granting religious exceptions for them
while denying other religious groups the same, or similar, accommodations.


       10 Cf. United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc)
(finding a compelling interest in “protecting Indian cultures from extinction”).

       11The Live Oak Treaty of 1838 established a relationship between the Lipan Apache
Tribe and the Republic of Texas. Tex. S. Con. Res. 338, 82nd Leg., R.S. (2011).

       12 The Lipan Apache Tribe has also received federal funding prior to 2007; however,
this funding was the result of its status as a non-profit entity. While there are approximately
400 non-federally recognized tribes in the United States, fewer than 50 were recipients of
federal funding. US GOV’T. ACCOUNTABILITY OFFICE, GAO-12-348, INDIAN ISSUES: FEDERAL
FUNDING FOR NON-FEDERALLY RECOGNIZED TRIBES 10 (2012).

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                                       No. 13-40326
See Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
430–32 (2006) (“O Centro”). 13         In holding that a ban on a hallucinogenic
substance violated RFRA as it applied to a particular religious sect, the Court
noted that there existed a regulatory exemption for the use of peyote by the
Native American Church. Id. at 433. The Supreme Court explicitly rejected
the Government’s argument that the special relationship between the United
States and the Tribes justified the exemption of peyote for American Indians,
but not other substances for other religious purposes. Id. at 432–34 (the
Government “never explains what about that ‘unique’ relationship justifies
overriding the same congressional findings on which the Government relies in
resisting any exception for the UDV’s religious use of [a controlled substance]”).
       The Hardman court’s analysis in regards to an American Indian who
was not a member of a federally recognized tribe is illustrative of this concern:
       [T]he government offers no evidence on the threshold question of
       whether allowing sincere practitioners who are not members of
       federally recognized tribes to possess eagle feathers, in addition to
       those who are members, truly threatens Native American culture.
       Allowing a wider variety of people to participate in Native
       American religion could just as easily foster Native American
       culture and religion by exposing it to a wider array of persons.
297 F.3d at 1133. The Department has failed to present evidence at the
summary judgment phase that an individual like Soto—whose sincerity is not
in question and is of American Indian descent—would somehow cause harm to
the relationship between federal tribes and the government if he were allowed



       13 O Centro concerned the Controlled Substances Act, 84 Stat. 1232, as amended, 21
U.S.C. § 801 et seq. (2000 ed. and Supp. I), which “regulates the importation, manufacture,
distribution, and use of psychotropic substances.” O Centro, 546 U.S. at 425. “O Centro
Espírita Beneficente Uniã do Vegetal (UDV) is a Christian Spiritist sect based in Brazil, with
an American branch of approximately 130 individuals” that received communion through
sacramental tea made from two plants that contain a hallucinogen listed in Schedule I of the
Controlled Substances Act. Id. By criminalizing even the possession of the substance, the
regulation substantially burdened the UDV’s spiritual practices. Id. at 426.
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                                       No. 13-40326
access to eagle feathers, especially given congressional findings that the
exception was born out of a religious concern. See Dion, 476 U.S. at 741–43;
see also O Centro, 546 U.S. at 434 (congressional findings that support one
exception will support similar exceptions); Merced, 577 F.3d at 592–93. 14 The
Department also fails to account for the fact that there are a multitude of non-
religious exceptions to the statute. See 16 U.S.C. § 668a (exceptions exist for
scientific and exhibition purposes, for the protection of wildlife or agriculture,
or “other interests in any particular locality”); see also Merced, 577 F.3d at 594.
       The Department’s “evidence” here was largely dependent on the rulings
of other circuits. Given the fact that the government bears the burden and the
relative paucity of the record, we conclude that the Department and the
Plaintiffs should have the opportunity to further develop the record on whether
the protection of federally recognized tribes is a compelling interest protected
by this statute. See also Hobby Lobby, 134 S. Ct. at 2779 (the governmental
interest cannot be “couched in very broad terms” but must be “focused” on the
particular claimant whose interest is substantially burdened).
       Assuming arguendo that either or both interests (protection of eagles
and further the relationship with federally recognized tribes) are compelling
governmental interests, we conclude that the Department has not sufficiently
demonstrated at this stage of the proceedings that the current regulatory
framework is the least restrictive means of achieving its goals. We now turn,
then, to that consideration.
B. Least Restrictive Means




       14  All this said, we in no way wish to endorse some type of “blood test” for protecting
religious liberty. The eagle feathers cases have addressed lineage and it is possible that a
particular American Indian faith itself may focus on lineage; therefore, we address lineage
against that backdrop.

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                                 No. 13-40326
      In the context of these cases, “least restrictive means” is a severe form of
the “narrowly tailored” test. See Sherbert, 374 U.S. at 407 (“[E]ven if the
possibility of spurious claims did threaten to dilute the fund and to disrupt the
scheduling of work, it would plainly be incumbent upon [the Government] . . . to
demonstrate that no alternative forms of regulation would combat such abuses
without infringing First Amendment rights.” (emphasis added)); Yoder, 406
U.S. at 215 (“The essence of all that has been said and written on the subject
is that only those interests of the highest order and those not otherwise served
can overbalance legitimate claims to the free exercise of religion.” (emphasis
added)). It is an “exceptionally demanding” test for the Department to meet.
Hobby Lobby, 134 S. Ct. at 2780. We have previously held that, for purposes
of analyzing a statute, “[t]he phrase ‘least restrictive means’ has its plain
meaning.” Sossamon v. Lone Star State of Tex., 560 F.3d 316, 332 (5th Cir.
2009). Because the Appellants have shown that the regulation substantially
burdens their exercise of religion, the Department has the burden of proving
that its implementation of the MBTA and Eagle Protection Act is the least
restrictive means of furthering those interests. Hobby Lobby, 134 S. Ct. at
2780; see also Adkins v. Kaspar, 393 F.3d 559, 567 n.32 (5th Cir. 2004).
      Recent Supreme Court cases, unavailable to the district court at the time
it granted summary judgment, have reaffirmed that the burden on the
government in demonstrating the least restrictive means test is a heavy
burden. See Hobby Lobby, 134 S. Ct. at 2780–82; see also McCullen v. Coakley,
134 S. Ct. 2518, 2540 (2014)(addressing strict scrutiny in the context of First
Amendment speech). The very existence of a government-sanctioned exception
to a regulatory scheme that is purported to be the least restrictive means can,
in fact, demonstrate that other, less-restrictive alternatives could exist. See
Hobby Lobby, 134 S. Ct. at 2781–82; see also O Centro, 546 U.S. at 433; Church
of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (“It is
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                                 No. 13-40326
established in our strict scrutiny jurisprudence that a law cannot be regarded
as protecting an interest of the highest order . . . when it leaves appreciable
damage to that supposedly vital interest unprohibited.” (citation and internal
quotation marks omitted)). Furthermore, the Department must provide actual
evidence, not just conjecture, demonstrating that the regulatory framework in
question is, in fact, the least restrictive means. See Hobby Lobby, 134 S. Ct. at
2780–81.
      1. Protecting Eagles
      At the outset, we note that our analysis is limited to the possession and
use of eagle feathers (which can be obtained from and without harm to living
eagles) and we do not have before us (and do not address) the question of eagle
carcasses and other issues which require that the eagle be dead.             The
Department presents two arguments for why excluding sincere adherents of
American Indian religions such as Soto who are not members of federally
recognized tribes from receiving permits advances the government’s interest
in preserving the eagle population: (1) allowing broader possession would
undermine law enforcement’s efforts to combat the illegal trade of eagle
feathers and parts; and (2) broader permitting would create law enforcement
problems because law enforcement does not have a means of verifying an
individual’s American Indian heritage.
      The Department’s argument stems from affidavits taken from agents
stating that a possession prohibition is necessary because there is no viable
way for agents in the field to determine whether a deceased eagle carcass or
parts were taken illegally.     The agents also state that if there was no
prohibition on possession, poaching would increase in order to satisfy a black
market in eagles and eagle feathers.        The Department’s argument lacks
sufficient evidence to prove that the ban in its current form is the “least
restrictive means.” See Hobby Lobby, 134 S. Ct. at 2780–83 (requiring the
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                                  No. 13-40326
government to provide evidence—statistical or otherwise—to prove the harms
asserted; the government cannot prevail where “no effort [is made] to
substantiate the prediction” ).
      First, the evidence in the record simply does not support the assertion
that expanding the permitting process would cause an increase in poaching.
This is mere speculation on the part of the agents who provided affidavits and
testimony, and the Supreme Court has stated that mere speculation is not
sufficient to satisfy a least restrictive means test. See id.; see also Sherbert,
374 U.S. at 407 (rejecting a slippery slope argument similar to the one offered
in this case, dismissing it as “no more than a possibility” that the State’s
speculation “that the filing of fraudulent claims by unscrupulous claimants
feigning religious objections to Saturday work” would drain unemployment
benefits). This case involves eagle feathers, rather than carcasses. It is not
necessary for an eagle to die in order to obtain its feathers. Thus, speculation
about poaching for carcasses is irrelevant to Soto’s request for return of
feathers.
      Second, the evidence in the record indicates that agents currently have
to rely on anecdotal information and interviews with American Indians who
possess feathers to determine the legal status of the feathers in question. This
would not change if the permitting system was expanded, and therefore, the
Department has failed to present specific evidence that the Plaintiffs’ religious
practice would jeopardize the preservation of the bald and golden eagles. See
Merced, 577 F.3d at 592–93; Hardman, 297 F.3d at 1133.
      Third, while it is possible to hypothesize that the current system has
kept the black market smaller because there are fewer individuals who can
legally possess feathers—and this is what the agents assume—it is also
possible to hypothesize that the black market exists precisely because sincere
adherents to American Indian religions cannot otherwise obtain eagle feathers.
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                                  No. 13-40326
See Hardman, 297 F.3d at 1132–33. The burden is on the Department to prove
that their hypothesis would come to fruition. See Hobby Lobby, 134 S. Ct. at
2783.
        Fourth, the fact that the statute already contains a broad, catch-all
provision for granting permits for “other interests” suggests that broadly
considering permits is not antithetical to the goals of the Eagle Protection Act.
16 U.S.C. § 668a; see also Merced, 577 F.3d at 594. The fact that exceptions
exist to the possession ban calls into doubt the Department’s claims that
someone in Soto’s position should find his religious practices hindered simply
to further a goal that history demonstrates is achievable even when there are
exceptions in place. See O Centro, 546 U.S. at 433.
        Furthermore, the Department has not provided sufficient evidence at
this stage to conclude that there are no other means of enforcement that would
achieve the same goals. See Hobby Lobby, 134 S. Ct. at 2780–81; see also
Sherbert, 374 U.S. at 407. For example, the Department could require that
individuals prove they obtained the feathers legally, by producing a valid
permit.    The regulations already allow the possession of certain feathers
without a permit demonstrating that there is a method in place for
determining whether feathers are legally held. See 50 C.F.R. § 22.2. The
Plaintiffs have also suggested that they be allowed to collect feathers that have
molted both in the wild and in zoos. The Department has not shown that this
is not a viable alternative, and, importantly, it is its burden to do so. See Hobby
Lobby, 134 S. Ct. at 2780–82 (noting that the government could not prove that
its policy was the least restrictive when it had failed to provide evidence
proving that suggested alternatives were not viable). While the Department
urges that doing so would make it impossible to determine if the feathers
possessed were truly molted or taken in some other way, the Department’s
difficulties with enforcement do not justify the diminishing of individual rights,
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                                   No. 13-40326
especially if a less restrictive alternative could achieve the same goals without
harming the rights of someone like Soto, a sincere adherent who is a member
of a tribe that is not federally recognized. See Sherbert, 374 U.S. at 407.
      Finally, while the Department states that the current system keeps the
agents from having to be “religious police” by keeping them from having to
verify the genealogy of individuals who possess feathers, there is simply no
evidence in the record indicating that individuals who sincerely practice
American Indian religions could not demonstrate their religious need for eagle
feathers.   The current permitting regulations, after all, already require
applicants to demonstrate that they need the feathers for a bona fide tribal
religious ceremony. 50 C.F.R. § 22.22. Sincerity is an inherent issue in a RFRA
case, but it is not an issue in this case where the Bureau admits Soto’s sincerity.
Because the government has not satisfactorily proved at this stage that there
are not other less restrictive alternatives that could achieve the statute’s
preservation goals without burdening the practice of American Indian religions
by American Indians, we must remand for further development of the record
on the question of whether the current regulations are the least restrictive
means of achieving the interest of protecting eagles. See 42 U.S.C. § 2000bb-
1(b). On remand, the district court should consider the authorities cited in
light of the Supreme Court’s recent holding in Hobby Lobby and its exacting
standard. 134 S. Ct. at 2779–82.
      2. Fulfilling Responsibilities to Federally Recognized Tribes
      Even assuming, without deciding, that the statute is meant to fulfill a
compelling interest in the government’s responsibilities to federally recognized
tribes, the Department has not, at this stage and on this record, carried its
burden to demonstrate that the current permitting system is the least
restrictive means of accomplishing that interest. See 42 U.S.C. § 2000bb-1(b).
The Department states that opening the permitting process to individuals who
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                                 No. 13-40326
are not members of federally recognized tribes would frustrate this purpose
because it would (1) lengthen repository wait times exponentially and (2)
increase the black market. We have already explained that the Department’s
claims regarding an increasing black market are speculative at best; therefore,
we will only consider the Department’s claims regarding the inability of the
repository to accommodate a larger number of permits.
        The Department’s argument rests on the premise that the repository
simply cannot fill the current needs of individuals who have permits in a timely
fashion. These wait times arguably would be exacerbated by an influx of
permits. The Department estimates that there would be a multi-million person
increase in potential permits because, while there are approximately 2 million
members of federally recognized tribes, there are 5.2 million persons of
American Indian and Alaska Native heritage according to the 2010 census
data.
        The evidence regarding the numbers of eligible applicants is not
sufficient to prove that there would be such an overwhelming number of
permits sought and granted that the repository would be so overwhelmed as to
endanger the ability for the federal government to fulfill its “unique”
responsibilities to federally recognized tribes. See Hobby Lobby, 134 S. Ct. at
2780–81; see also Merced, 577 F.3d at 592–93 (defendant must show “specific
evidence” that the religious practice would jeopardize its stated interest).
Here, there is no evidence regarding the numbers of individuals who are not
members of federally recognized tribes, but who do practice the American
Indian religions that hold eagle feathers to be sacred. These numbers would
be necessary to demonstrate that the exclusion of a particular subset of
American Indian religion adherents is necessary to achieve any compelling
governmental interest. See Merced, 577 F.3d at 592–93; see also Hardman,
297 F.3d at 1133.
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                                  No. 13-40326
      The Department’s main argument is that opening the repository to
individuals who are bona fide religious adherents, but not members of federally
recognized tribes, will tax the repository, and that taxing the repository will
make it more difficult for members of federally recognized tribes to obtain eagle
feathers, which will, in turn, hinder the ability of the federal government to
fulfill its responsibilities to federally recognized tribes. At this stage, the
Department has not provided specific evidence of how allowing individuals,
and in particular, Soto, whose sincerity is not questioned, to acquire permits
would jeopardize the stated interest such that it has not, at this point, proved
its case on the least restrictive means analysis. See 42 U.S.C. § 2000bb-1(b);
see also Hobby Lobby, 134 S. Ct. at 2780–81; Merced, 577 F.3d at 592–93.
      Perhaps more importantly, on the state of this record, it appears that
this argued harm is one of the government’s own making: the alleged harm to
members of federally recognized tribes is caused by the system the government
has created because the repository that it established and runs is inefficient.
See Hobby Lobby, 134 S. Ct. at 2780–81 (noting that one “least restrictive
means” may include the Government “assum[ing] the cost” of providing the
contraceptives at issue there).    The Department cannot infringe on Soto’s
rights by creating and maintaining an inefficient system and then blaming
those inefficiencies for its inability to accommodate Soto. See id.; see also
Sherbert, 374 U.S. at 407.
      Left largely unexamined are the numerous solutions provided by the
Plaintiffs, including collecting molted feathers from zoos or allowing tribes to
run aviaries, and in fact, there is evidence in the record that certain tribes
already do maintain eagle aviaries.         The Department has not provided
sufficient evidence to prove that these means would not achieve the
government’s goals (i.e., providing feathers to federally recognized tribe
members) and therefore, has failed to carry its burden at this stage under
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                                       No. 13-40326
RFRA. See Hobby Lobby, 134 S. Ct. 2751; see also Adkins, 393 F.3d at 567
n.32.
        We thus have a different take on this matter than the observation that
“RFRA does not require the government to make the practice of religion
easier.” Vasquez-Ramos, 531 F.3d at 992–93. Soto does not seek to make the
practice of his religion “easier,” he seeks to avoid roadblocks of the
government’s own making which have made the practice of his religion not just
“not easier” but impossible.           The other circuits that have accepted the
government’s “least restrictive means” arguments have done so in contexts not
assessing the questions of whether the government’s own inefficiencies can be
considered “the least restrictive means” and whether other avenues that put
the burden on plaintiffs (like collecting feathers from zoos) would be less
restrictive. See, e.g., Wilgus, 638 F.3d at 1289–95; Babbitt, 223 F.3d at 1257–
58. On the records before them, these circuits accepted the Department’s
analysis that the current difficulties in obtaining eagle feathers warranted
limiting the individuals who could gain access to them. See, e.g., Wilgus, 638
F.3d at 1295.
        Those cases involved in most instances much better-developed records.
We cannot accept the argument on this record for the reasons stated above.
See O Centro, 546 U.S. at 432–34; cf A.A. ex. rel. Betenbaugh, 611 F.3d at 264.
Furthermore, these cases were decided before the Supreme Court’s holding in
Hobby Lobby clarified how heavy the burden is on the Department to
demonstrate that the regulatory framework is the least restrictive means. See
Hobby Lobby, 134 S. Ct. at 2780–82. 15


        15The Supreme Court has also recently made clear that the government has the
burden in strict scrutiny cases of demonstrating that the alternative measures would fail to
achieve their interests, not simply that the chosen route is “easier.” See McCullen, 134 S. Ct.
at 2540 (holding that to satisfy First Amendment scrutiny, the government must
demonstrate that the alternative means would fail to achieve its interests, not simply be more
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                                      No. 13-40326
       We do not agree, therefore, with the district court that, on this record at
this stage, the Department has met its burden in demonstrating that a
possession ban on all but a select few American Indians is the least restrictive
means of achieving any compelling interest in maintaining the trust
relationship between the United States and federally recognized tribes. The
burden on the Department is a high one: they must demonstrate that “no
alternative forms of regulation” would maintain this relationship without
infringing upon the rights of others. Sherbert, 374 U.S. at 407. At this stage,
the Department has not shown that this regulation is the least restrictive
means of furthering its compelling interests.
                                     VI. Conclusion
       For the foregoing reasons, we conclude that the Department has not
carried its burden in showing that the current permitting scheme does not
violate RFRA; therefore, we REVERSE the district court’s grant of summary
judgment in favor of the Department and REMAND for proceedings consistent
with this opinion.




difficult). Although a free-speech case, McCullen makes clear that Department’s burden is
heavier than simply showing that the current regulation “works” to effectuate its interests.
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                                    No. 13-10852
JONES, Circuit Judge, concurring.
      I concur in the carefully written panel opinion with one point of
clarification. Soto is without dispute an Indian and a member and regular
participant in the Lipan Apache Tribe, which, although not federally
recognized, has long historical roots in Texas. The panel opinion discusses—
and is also limited by—Soto’s RFRA claim based on his and his tribe’s status.
No more should be read into the RFRA protection intended by this decision.
      Both the conservation of eagles and the way of life of federally recognized
Indian tribes are of signal national importance, as indicated by decades of
federal law and regulations. If the government sustains its position that the
supply of eagle feathers is limited and that increasing access by non-recognized
tribe members, or even by non-Indians, to eagle feathers for sacred purposes
will endanger the eagles and the federally recognized tribes, this case becomes
very close. Broadening the universe of “believers” who seek eagle feathers
might then seriously endanger the religious practices of real Native
Americans. Soto’s status does not eliminate the potential problems, which will
be explored at trial, but cabins this case to Native American co-religionists.




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