                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


OKLEVUEHA NATIVE AMERICAN               No. 14-15143
CHURCH OF HAWAII, INC.; MICHAEL
REX MOONEY, AKA Raging Bear,               D.C. No.
            Plaintiffs-Appellants,      1:09-cv-00336-
                                          SOM-BMK
                 v.

LORETTA E. LYNCH, Attorney                  OPINION
General; MICHELE LEONHART, as
Acting Administrator of the U.S.
Drug Enforcement Administration;
FLORENCE T. NAKAKUNI, U.S.
Attorney for the District of Hawaii,
               Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Hawaii
  Susan Oki Mollway, Chief District Judge, Presiding

               Argued and Submitted
         October 16, 2015—Honolulu, Hawaii

                  Filed April 6, 2016

 Before: Diarmuid F. O’Scannlain, Richard C. Tallman,
        and Milan D. Smith, Jr., Circuit Judges.

             Opinion by Judge O’Scannlain
2       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

                           SUMMARY*


             Religious Freedom Restoration Act

    The panel affirmed the district court’s summary judgment
in favor of federal officials, and held that the district court
properly denied the plaintiffs – Oklevueha Native American
Church of Hawaii, Inc. and its founder, Michael Rex “Raging
Bear” Mooney – an exemption from federal laws prohibiting
the possession and distribution of cannabis.

    Concerning plaintiffs’ claimed violation of the Religious
Freedom Restoration Act, the panel held that even assuming
that plaintiffs’ use of cannabis constituted an “exercise of
religion,” no rational trier of fact could conclude on the
record that a prohibition of cannabis use imposed a
“substantial burden” on plaintiffs’ exercise of religion.
Specifically, the panel held that nothing in the record
demonstrated that a prohibition on cannabis forced plaintiffs
to choose between obedience to their religion and criminal
sanction, such that they were being coerced to act contrary to
their religious beliefs; and this was fatal to their claim. The
panel also held that plaintiffs’ admission that cannabis was
merely a substitute for peyote also distinguished their case
from Holt v. Hobbs, 135 S. Ct. 853 (2015) (holding that there
was a Religious Land Use and Institutionalized Persons Act
violation where the prison’s refusal to grant a Muslim inmate
a religious exemption to grow a half-inch beard forced him to
choose between a violation of his religious beliefs or face
serious disciplinary action).

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH                  3

    Concerning plaintiffs’ claimed violation of the American
Indian Religious Freedom Act, the panel held that the Act
does not create a cause of action or any judicially enforceable
individual rights.


                         COUNSEL

Michael Andrew Glenn, Low Cost Legal Services, Honolulu,
Hawaii, argued the cause and filed the briefs for the
plaintiffs-appellants.

Lowell V. Sturgill, Jr., United States Department of Justice,
Washington, D.C., argued the cause and filed the brief for the
defendants-appellees. With him on the brief were Stuart F.
Delery and Mark Stern, United States Department of Justice,
Washington, D.C., and Florence Nakakuni, United States
Attorneys Office, Honolulu, Hawaii.

Kristen A. Carpenter, University of Colorado Law School,
Boulder, Colorado, filed a brief on behalf of amici curiae
National Council of Native American Churches, Native
American Church of North America; Azee Bee Nahagha of
Dine Nation; Native American Church, State of Oklahoma;
and Native American Church, State of South Dakota in
support of the defendants-appellees.
4      OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

                          OPINION

O’SCANNLAIN, Circuit Judge:

    The Religious Freedom Restoration Act mandates that the
federal government may not substantially burden a person’s
religious exercise unless it uses the least restrictive means to
further a compelling interest. We must decide whether the
district court properly denied a church and its founder an
exemption from federal laws prohibiting the possession and
distribution of cannabis.

                               I

    Michael Rex “Raging Bear” Mooney is the founder,
president, and “Medicine Custodian” of Oklevueha Native
American Church of Hawaii, Inc. (“Oklevueha”). According
to Mooney and Oklevueha, members of the church “receive
communion through cannabis in their religious ceremonies
and daily worship.” Specifically, they assert that “Mooney
uses cannabis sacrament daily, and [Oklevueha] uses
cannabis in its ‘sweats,’ which occur approximately twice a
month during the new moon and the full moon.” They further
allege that Oklevueha’s primary purpose is “to administer
Sacramental Ceremonies,” which include a “sweat lodge
ceremony,” as well as peyote, breath, and pipe ceremonies.
According to Mooney, these ceremonies “help people regain
their relationship with the Creator,” and give participants a
“direct connection” with the divine.

    Mooney and Oklevueha describe their religion as
“peyotism.” But unlike traditional peyotism, Mooney and
Oklevueha consider “cannabis, in addition to peyote, to be
sacred or most holy.” Specifically, they state that “Peyote is
       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH                 5

the significant sacrament” and that they consume cannabis “in
addition to and in the [sic] substitute for their primary
entheogenic sacrament, Peyote.” Further, Mooney and
Oklevueha explain that they “honor[] and embrace[] all
entheogenic naturally occurring substances, including
Ayahuasca, Cannabis (aka Rosa Maria and Santa Rosa),
Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,
Tsi-Ahga, and many others.” As they describe it, the purpose
of their cannabis use “is similar to the purpose of many other
intensive religious practices—to enhance spiritual awareness
or even to occasion direct experience of the divine.”

                              A

    Mooney and Oklevueha filed their initial complaint
against various federal officials in 2009, alleging that a
member of the church had his cannabis seized and that the
threat of federal prosecution for cultivating, possessing, and
distributing cannabis was “exceedingly real.” They sought
declaratory and injunctive relief under the Religious Freedom
Restoration Act (“RFRA”), 42 U.S.C. § 2000bb et seq., the
American Indian Religious Freedom Act (“AIRFA”),
42 U.S.C. § 1996, the Free Exercise Clause, and the Equal
Protection Clause. Specifically, Mooney and Oklevueha
sought to prevent the government from prosecuting them
under the Controlled Substances Act (“CSA”), 21 U.S.C.
§ 801 et seq., for possessing cannabis for religious or
therapeutic use, obtaining cannabis, and cultivating or
distributing cannabis consistent with state law.

    The district court dismissed Mooney’s and Oklevueha’s
claims on ripeness grounds. Mooney and Oklevueha
appealed, and we reversed in Oklevueha Native Am. Church
of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012).
6       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

                               B

     Following remand, the government brought a renewed
motion to dismiss under Rule 12(b)(6) which the court
granted with respect to the AIRFA claim, the free exercise
claim and the equal protection claim, but denied with respect
to the RFRA claim. After discovery, the government brought
a motion for summary judgment on the remaining RFRA
claim, which the district court granted.

    The district court observed that Mooney and Oklevueha
had produced “almost no admissible evidence regarding their
religion,” and that “[n]o reasonable juror could infer . . . that
Mooney’s religion is anything more than a strongly held
belief in the importance or benefits of marijuana.” The
district court also concluded that Mooney and Oklevueha had
not met their evidentiary burden in demonstrating that a
prohibition on cannabis constituted a “substantial burden” on
their religion. Mooney and Oklevueha timely appealed.

                               II

    We review a district court’s grant of summary judgment
de novo. Nigro v. Sears, Roebuck & Co., 784 F.3d 495, 497
(9th Cir. 2015). Thus, we must “determine, viewing the
evidence in the light most favorable to the nonmoving party,
whether there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” SEC v. Phan, 500 F.3d 895, 901 (9th Cir.
2007) (citation omitted); see Fed. R. Civ. P. 56(a). A factual
issue is genuine if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH                   7

                              III

     Mooney and Oklevueha first argue that the district court
erred in granting summary judgment to the government on
their RFRA claim. RFRA “suspends generally applicable
federal laws that ‘substantially burden a person’s exercise of
religion’ unless the laws are ‘the least restrictive means of
furthering [a] compelling governmental interest.’” United
States v. Antoine, 318 F.3d 919, 920 (9th Cir. 2003)
(alteration in original) (quoting 42 U.S.C. § 2000bb-1(a)–(b)).
To establish a prima facie claim under RFRA, a plaintiff must
“present evidence sufficient to allow a trier of fact rationally
to find the existence of two elements.” Navajo Nation v. U.S.
Forest Serv., 535 F.3d 1058, 1068 (9th Cir. 2008) (en banc).
“First, the activities the plaintiff claims are burdened by the
government action must be an ‘exercise of religion.’” Id.
(quoting 42 U.S.C. § 2000bb-1(a)); see also United States v.
Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007) (per curiam)
(observing that a litigant “may only invoke RFRA if his
beliefs are both ‘sincerely held’ and ‘rooted in religious
belief, not in “purely secular” philosophical concerns’”
(citation omitted)). “Second, the government action must
‘substantially burden’ the plaintiff’s exercise of religion.”
Navajo Nation, 535 F.3d at 1068 (quoting 42 U.S.C.
§ 2000bb-1(a)). Where a plaintiff has established these
elements, “the burden of persuasion shifts to the government
to prove that the challenged government action is in
furtherance of a ‘compelling governmental interest’ and is
implemented by ‘the least restrictive means.’” Id. (quoting
42 U.S.C. § 2000bb-1(b)).
8       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

                                  A

    The parties disagree as to whether enough evidence exists
to create a genuine factual dispute about whether Mooney’s
and Oklevueha’s cannabis use amounts to an exercise of
religion. Like the district court, we are skeptical that such a
genuine issue of fact exists. Nonetheless, we need not reach
this question on appeal, because even assuming such use
constitutes an “exercise of religion,” no rational trier of fact
could conclude on this record that a prohibition of cannabis
use imposes a “substantial burden.”

                                  B

    RFRA itself provides no explicit definition of “substantial
burden.” However, we have held that the meaning of the
term can be ascertained by looking to “a body of Supreme
Court case law” decided before Employment Division v.
Smith, 494 U.S. 872 (1990), the case that was the impetus for
RFRA’s passage. Navajo Nation, 535 F.3d at 1067–68; see
also 42 U.S.C. § 2000bb(a)–(b) (explaining RFRA’s attempt
to restore pre-Smith protections for religious exercise).
Looking to that pre-Smith case law, we have held that a
substantial burden under RFRA exists in a context such as
this one “only when individuals are . . . coerced to act
contrary to their religious beliefs by the threat of civil or
criminal sanctions . . . .” Navajo Nation, 535 F.3d at 1070.1
Nothing in the record indicates that Mooney or Oklevueha


    1
   Mooney and Oklevueha make no allegation that the CSA’s prohibition
on cannabis “force[s] [them] to choose between following the tenets of
their religion and receiving a governmental benefit,” the other kind of
substantial burden we have recognized under RFRA. Navajo Nation,
535 F.3d at 1070.
       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH                  9

face such a dilemma, because they have expressly told us that
foregoing cannabis is not contrary to their religious beliefs.

    Mooney and Oklevueha state in no uncertain terms that
“Peyote is the significant sacrament,” and that they consume
cannabis only “in addition to and in the [sic] substitute for
their primary entheogenic sacrament, Peyote.” They make no
claim that peyote is unavailable or that cannabis serves a
unique religious function. What is more, their certified
complaint states that Oklevueha “honors and embraces all
entheogenic naturally occurring substances, including
Ayahuasca, Cannabis (aka Rosa Maria and Santa Rosa),
Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,
Tsi-Ahga, and many others.” Put simply, nothing in the
record demonstrates that a prohibition on cannabis forces
Mooney and Oklevueha to choose between obedience to their
religion and criminal sanction, such that they are being
“coerced to act contrary to their religious beliefs.” Navajo
Nation, 535 F.3d at 1070. Mooney’s and Oklevueha’s failure
to demonstrate that the prohibition on cannabis puts them to
such a choice is fatal to their claim. See Ruiz-Diaz v. United
States, 703 F.3d 483, 486 (9th Cir. 2012) (explaining the
nature of the “forced choice” captured in RFRA’s substantial
burden component and finding plaintiffs’ RFRA claim non-
meritorious because “the challenged regulation does not
affect their ability to practice their religion”); Snoqualmie
Indian Tribe v. FERC, 545 F.3d 1207, 1213–15 (9th Cir.
2008) (finding no substantial burden where plaintiffs failed to
allege government action “coerce[d] them into a Catch-22
situation”).
10     OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

                               1

    Mooney and Oklevueha cite Burwell v. Hobby Lobby
Stores, Inc., 134 S. Ct. 2751 (2014), to argue that “a court
must not decide the plausibility of a religious claim.” Such
a contention is of course correct, but it does nothing to
demonstrate that a prohibition on cannabis actually burdens
Mooney’s or Oklevueha’s religious exercise. In concluding
that Mooney and Oklevueha have created no triable issue of
fact to satisfy RFRA’s second element, we do not pass
judgment on the plausibility of their religious beliefs or “tell
the plaintiffs that their beliefs are flawed.” Hobby Lobby,
134 S. Ct. at 2778. On the contrary, we simply conclude that
the evidence is inadequate to support the finding of a
substantial burden. That conclusion is amply supported by
Hobby Lobby and other recent Supreme Court precedent.

    In Hobby Lobby, the Supreme Court held that for-profit
businesses whose owners objected to providing several
contraceptives required by regulations promulgated under the
Affordable Care Act were entitled to an exemption under
RFRA. Id. at 2759. In so holding, the Court concluded that
the government had imposed a substantial burden by
demanding the businesses and their owners “engage in
conduct that seriously violates their religious beliefs” by
requiring them to provide abortifacients or face significant
financial penalties. Id. at 2775. Mooney and Oklevueha have
alleged no analogous burden. Indeed, their counsel at oral
argument admitted on multiple occasions that no religious
ceremonies engaged in by Mooney or Oklevueha actually
require the use of cannabis, and that cannabis is simply a
substitute for peyote. We fail to see how prohibiting a
substance that Mooney and Oklevueha freely admit is a
substitute would force them to act at odds with their religious
       OKLEVUEHA NATIVE AM. CHURCH V. LYNCH                  11

beliefs—at least when they have made no showing that their
primary sacramental substances are otherwise unavailable.

                               2

    Likewise, Mooney’s and Oklevueha’s admission that
cannabis is merely a substitute for peyote also distinguishes
their case from Holt v. Hobbs, 135 S. Ct. 853 (2015). In Holt,
the Supreme Court found that the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C.
§ 2000cc et seq., the “sister statute” to RFRA, required a
prison to grant a Muslim inmate a religious exemption to
grow a half-inch beard. Id. at 859. The district court had
held that the inmate’s religion was not substantially burdened
by the prison’s grooming policy because the inmate was able
to engage in “other forms of religious exercise” such as use
of a prayer rug, distribution of Islamic material, and
observation of religious holidays. Id. at 862. The Court
rejected that conclusion, reasoning that the prison’s refusal to
allow the inmate to grow a beard still forced him to choose
between “‘engag[ing] in conduct that seriously violates [his]
religious beliefs’” or “fac[ing] serious disciplinary action.”
Id. at 862 (quoting Hobby Lobby, 134 S.Ct. at 2775). By
contrast, Mooney and Oklevueha have produced no evidence
that denying them cannabis forces them to choose between
religious obedience and government sanction, since they have
stated in no uncertain terms that many other substances
including peyote are capable of serving the exact same
religious function as cannabis.

                              IV

    Mooney and Oklevueha also argue that the district court
erred in dismissing their claim under the American Indian
12     OKLEVUEHA NATIVE AM. CHURCH V. LYNCH

Religious Freedom Act. AIRFA declares that it is “the policy
of the United States to protect and preserve for American
Indians their inherent right of freedom to . . . exercise the
traditional religions of the American Indian, Eskimo, Aleut,
and Native Hawaiians . . . .” 42 U.S.C. § 1996. Contrary to
Mooney’s and Oklevueha’s assertions, however, AIRFA
“does not create a cause of action or any judicially
enforceable individual rights.” United States v. Mitchell, 502
F.3d 931, 949 (9th Cir. 2007) (quoting Henderson v. Terhune,
379 F.3d 709, 711 (9th Cir. 2004)); see also Lyng v.
Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439,
455 (1988).

                              V

   The district court’s grant of summary judgment was
proper.

     AFFIRMED.
