Northern Arapaho Tribe Prevails against Fish & Wildlife Service/Eastern Shoshone Tribe over Eagle Permits in Accordance with Hobby Lobby

Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):

93 DCT Order

An excerpt:

While the foregoing discussion is mired in legal nuance, at the end of the day, the federal government burdened one federally-recognized Indian tribe’s free exercise of religion based on the religious objection of another federally-recognized Indian tribe. Whether the First Amendment prevents the federal government from imposing the burden of law on one federally-recognized Indian tribe’s free exercise of religion for the benefit of another is a question of first impression, but it is clear that the First Amendment forbids such conduct—”The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Church of the Lukumi Babalu Aye, 508 U.S. at 542. The Court finds that Defendants’ decision in its informal adjudication of Plaintiffs’ permit application violated the Free Exercise Clause of the First Amendment because the decision was not justified by a compelling governmental interest and was not narrowly tailored to advance the asserted interest.

The Court finds and that Defendants made an error of law when adjudicating Plaintiffs’ permit application and that Defendants’ error is capable of repetition, yet evading review. Therefore, this Court must set aside Defendants’ Permit Findings and Renewal Permit Findings, and remand to the U.S. Fish and Wildlife Service to reconsider those findings consistent with this Order. “When an administrative agency has made an error of law, the duty of the Court is to correct the error of law committed by that body, and, after doing so to remand the case to the [agency] so as to afford it the opportunity of examining the evidence and finding the facts as required by law.” Miami Tribe of Oklahoma v. United States, 656 F.3d 1129, 1138 (10th Cir. 2011).


79 NAT Motion for Summary J

85 Eastern Shoshone Supplement to Amicus Brief

87 FWS Motion for Summary J

89 NAT Opposition

90 NAT Reply

92 NAT Letter re Hobby Lobby

News coverage here.

Prior to Hobby Lobby, the court had not allowed the N. Arapaho Tribe to add an establishment clause claim, materials here.

A 2012 order on the merits — again, pre-Hobby Lobby — with materials is here.

Federal Court Refuses to Allow N. Arapaho Tribe to Add Establishment Clause Claim to Eagle Act Regulatory Dispute

Here are the new materials in Northern Arapaho Tribe v. Ashe (D. Wyo.):

DCT Order Denying Motion

N. Arapaho Motion to File Second Amended Complaint

USFWS Opposition

N. Arapaho Reply

An excerpt:

With these principles in mind, the Court denies Plaintiffs’ motion because they waited too long to amend their complaint. Plaintiffs knew or should have known the facts underlying an Establishment Clause claim when they filed their amended complaint nearly a year ago. And Plaintiffs undoubtedly knew about the Establishment Clause claim by May 31, 2012, because on that date they filed a memorandum stating that “[d]efendants’ denial of the [tribe’s] permit application creates Establishment Clause problems.” Pls.’ Mem. 14 n.19, ECF No. 30. Yet Plaintiffs waited over eight months from the time they clearly knew about the Establishment Clause claim to file the present motion. That’s simply too long a wait. The Court therefore DENIES Plaintiffs’ motion for leave to amend their complaint (ECF No. 59) based on undue delay.

Our prior post on this case is here.

Northern Arapaho Tribe v. Ashe — Eagle Take Permits

The Court rejects the argument that the record rule applies to Plaintiffs’ RFRA claims because RFRA and the APA provide two distinct causes of action with different standards of review. Plaintiffs lack standing to pursue a declaratory judgment that the FWS violated RFRA by delaying issuance of Plaintiffs’ eagle take permit for two and a half years and injunctive relief ordering the FWS to process Plaintiffs’ future eagle take permit applications within three months of submission because Plaintiffs have failed to demonstrate that they are likely to suffer similar delays in the future. Plaintiffs have standing to seek a declaratory judgment that FWS’s refusal to allow eagle take within Plaintiffs’ Reservation violates RFRA and an injunction ordering the FWS to modify Plaintiffs’ current eagle take permit because Plaintiffs have established injury, causation, and redressability. The Court assumes (without deciding) that the FWS’s refusal to allow Plaintiffs to take eagles within their Reservation places a substantial burden on Plaintiffs’ religious exercise, and it concludes that the FWS did not violate RFRA because it advanced and balanced its compelling interests via the least restrictive means. It is therefore
ORDERED that Plaintiffs’ motion for partial summary judgment is DENIED.

N Arapaho Motion for Summary Judgment

E Shoshone Amicus Brief


N Arapaho Motion to Amend DCT Order