                                                                            FILED
                           NOT FOR PUBLICATION                              MAY 19 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


LA CUNA DE AZTLAN SACRED SITES                   No. 13-56799
PROTECTION CIRCLE ADVISORY
COMMITTEE; CALIFORNIANS FOR                      D.C. No.
RENEWABLE ENERGY; ALFREDO                        2:11-cv-00400-DMG-DTB
ACOSTA FIGUEROA; PHILLIP SMITH;
PATRICIA FIGUEROA; RONALD VAN
FLEET; CATHERINE OHRIN-GREIPP;                   MEMORANDUM*
RUDY MARTINEZ MACIAS; GILBERT
LEIVAS,

              Plaintiffs - Appellants,

 v.

UNITED STATES DEPARTMENT OF
THE INTERIOR, et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                       Argued and Submitted April 10, 2015
                              Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: KLEINFELD, BENAVIDES,** and CLIFTON, Circuit Judges.

      Plaintiffs-Appellants La Cuna De Aztlan Sacred Sites Protection Circle

Advisory Committee, CAlifornians for Renewable Energy, Alfredo Acosta

Figueroa, Patricia Figueroa, Phillip Smith, Ronald Van Fleet, Catherine Ohrin-

Greipp, Rudy Martinez Macias (now deceased), and Gilbert Leivas brought this

suit against the U.S. Department of the Interior, as well as Solar Partners I, LLC;

Solar Partners II, LLC; Solar Partners VIII, LLC; and BrightSource Energy, Inc.

The instant appeal arises from a denial of Plaintiffs’ motion for summary judgment

and grant of Defendants’ motion for summary judgment. We have jurisdiction

under 28 U.S.C. § 1291. We review a grant of summary judgment de novo and we

“determine whether, viewing the evidence in the light most favorable to the

nonmoving party, there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.” Lopez v. Smith, 203

F.3d 1122, 1131 (9th Cir. 2000); see FED. R. CIV. P. 56(a).

      While the initial suit included numerous claims, the only claim on appeal is

under the Religious Freedom Restoration Act (“RFRA”). To establish a prima

facie RFRA claim, a plaintiff must allege two elements: “First, the activities the

plaintiff claims are burdened by the government action must be an ‘exercise of


       **
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
religion.’ . . . Second, the government action must ‘substantially burden’ the

plaintiff’s exercise of religion.” Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058,

1068 (9th Cir. 2008) (en banc) (internal citation omitted). This appeal hinges on

the second element, and specifically whether denial of Plaintiffs’ access to the

Ivanpah Solar Electric Generating System (“Ivanpah Project”) site imposes a

substantial burden on the exercise of religion within the meaning of RFRA. If a

prima facie claim has been established, the “Government 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 district court did not rule on the compelling interest

part of the test, and we decline to do so as well. This appeal hinges on whether

Plaintiffs have met the substantial burden requirement.

      We conclude that the record, which includes declarations submitted by the

Plaintiffs that provide little more than conclusory statements and which have not

shown where the alleged sacred sites are located at the Ivanpah Project site, is

insufficient to support Plaintiffs’ claim that the loss of access to the limited area

taken by the Ivanpah Project imposes a substantial burden. Viewing the evidence

in the light most favorable to the Plaintiffs, the Plaintiffs have not shown that they

are either “forced to choose between following the tenets of their religion and
receiving a governmental benefit,” or “coerced to act contrary to their religious

beliefs by the threat of civil or criminal sanctions” as this court requires to

establish a substantial burden under RFRA. Navajo Nation, 535 F.3d at 1069-70.

AFFIRMED.
