Home

United States District Court, D. Wyoming.

NORTHERN ARAPAHO TRIBE, on its own behalf and on behalf of its members, and JIM SHAKESPEARE, Chairman, Northern Arapaho Business Council, in his official and individual capacities, Plaintiffs,

v.

Daniel M. ASHE, Director, United States Fish and Wildlife Service, and Matt Hogan, Assistant Regional Director, Region 6, Migratory Birds and State Programs, in their official capacities, Defendants.

No. 11–CV–347–J.

Dec. 18, 2012.

Terri V. Smith, Andrew W. Baldwin, Baldwin Crocker & Rudd, Lander, WY, for Plaintiff.

Barbara M.R. Marvin, Department of Justice, Washington, DC, Carter HealyCoby Howell, Department of Justice, Portland, OR, Nicholas Vassallo, U.S. Attorney's Office, Cheyenne, WY, for Defendants.

ORDER DENYING PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT

ALAN B. JOHNSON, District Judge.

*1 Plaintiffs Northern Arapaho Tribe and Jim Shakespeare brought suit against Defendants Daniel Ashe and Matt Hogan-officials within the United States Fish and Wildlife Service-alleging, among other things, that Defendants had violated the Religious Freedom Restoration Act by refusing to permit Plaintiffs to take eagles within the Wind River Indian Reservation for use in Plaintiffs' religious ceremonies. This Court granted summary judgment for Defendants on Plaintiffs' Religious Freedom Restoration Act claims. Plaintiffs have now filed a motion asking this Court to alter or amend that judgment. The Court denies Plaintiffs' motion.

STANDARD OF REVIEW

The standard of review for a Rule 59(e) motion to alter or amend a judgment applies here. “A motion for reconsideration under Rule 59(e) should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” Devon Energy Prod. Co. v. Mosaic Potash Carlsbad, Inc., 693 F.3d 1195, 1212 (10th Cir.2012). Altering or amending a judgment generally is appropriate in three circumstances: (1) an intervening change in the controlling law has occurred, (2) new evidence previously unavailable is now available, or (3) alteration or amendment is necessary to correct clear error or to prevent manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). Also, a court can alter or amend its judgment if it has misapprehended the facts, a party's position, or the controlling law. Id. A court should not alter or amend its judgment, however, where the motion asks the court to revisit issues the court already has addressed or where the moving party advances arguments that could have been raised in a prior briefing. Id.

FACTS

Plaintiffs are the Northern Arapaho Tribe—a federally-recognized Indian tribe located on the Wind River Indian Reservation in west-central Wyoming—and Jim Shakespeare, a Northern Arapaho tribal member and chairman of the Northern Arapaho Business Council. Am. Compl. 3, ECF No. 18. Defendants Daniel Ashe and Matt Hogan are officials within the United States Fish and Wildlife Service. Id.

A few years ago, Plaintiffs applied to the Fish and Wildlife Service for a permit to take FN1 eagles within their Reservation for use in their religious ceremonies. See id. 4–5. Plaintiffs share the Wind River Indian Reservation as tenants in common with another federally-recognized Indian tribe, the Eastern Shoshone. See generally Shoshone Tribe v. United States, 299 U.S. 476 (1937). The Eastern Shoshone opposed Plaintiffs' permit application based on the Eastern Shoshone's cultural and religious objections to killing eagles. Order 4, ECF No. 45. The Fish and Wildlife Service eventually granted Plaintiffs a permit allowing them to take up to two adult bald eagles per year within Wyoming, but the permit does not allow Plaintiffs to take eagles within the Reservation. Am. Compl. 5, ECF No. 18.

FN1. “Take means pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 50 C.F.R. § 22.3 (2011).

*2 Plaintiffs then brought suit against Defendants, alleging, among other things, that Defendants had violated the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb to 2000bb–4 (2006), by refusing to permit Plaintiffs to take eagles within their Reservation. Am. Compl. 7–9, ECF No. 18. Plaintiffs moved for summary judgment on their RFRA claims, see Order 5, ECF No. 45, and the Court received briefing and held a hearing on the issues raised by Plaintiffs' summary judgment motion. The Court eventually granted summary judgment on Plaintiffs' RFRA claims in favor of Defendants. Id. at 2. The Court assumed (without deciding) that Defendants' refusal to permit Plaintiffs to take eagles within their Reservation placed a substantial burden on Plaintiffs' religious exercise, and the Court concluded that Defendants had not violated RFRA because they had advanced and balanced their compelling interests in fostering the culture and religion of both the Eastern Shoshone and the Northern Arapaho via the least restrictive means. See id. at 22.

Plaintiffs have now filed a motion asking this Court to alter or amend its judgment. See Pls.' Mot. 2, ECF No. 46. Plaintiffs argue that this Court should alter or amend its judgment because it misapprehended certain facts and controlling law such that reconsideration of the judgment is warranted. See id. Defendants respond that “[n]one of the arguments Plaintiffs now offer demonstrates that there is any new evidence, or any clear error of law or fact by the Court, or that any manifest injustice will result from the Court's ruling. Plaintiffs thus fail to satisfy the requisites for reconsideration.” Defs.' Resp. 1, ECF No. 47. The Court will summarize and then respond to Plaintiffs' arguments before concluding.

DISCUSSION

Plaintiffs argue that the Court “misapprehended certain facts ... and controlling law such that reconsideration of the judgment is warranted to prevent manifest injustice.” Pls.' Mot. 2, ECF No. 46. Regarding the Court's misapprehension of facts, Plaintiffs argue (1) that the Court erroneously concluded that allowing Plaintiffs to take eagles within the Reservation would burden the Eastern Shoshone's religious practices, see id. at 2–3, and (2) the Court failed to consider the substantial burden Wyoming's prohibition against eagle take imposes on Plaintiffs' religious exercise, see id. at 10. Plaintiffs also argue that the Court misapprehended and misapplied the Tenth Circuit's Wilgus decision. See id. at 7–9. Plaintiffs' final argument is that the Court misapprehended Plaintiffs' position by failing to consider other alternatives advanced by Plaintiffs. See id. at 11. The Court concludes that none of Plaintiffs' arguments has merit and denies Plaintiffs' motion.

Plaintiffs' first argument is that the Court erroneously concluded that allowing Plaintiffs to take eagles within the Reservation would burden the Eastern Shoshone's religious practices. See id. at 2–3. The flaw in Plaintiffs' argument is that it focuses exclusively on whether eagle take within the Reservation implicates the Eastern Shoshone's cultural and religious practices without considering whether eagle take within the Reservation implicates the Eastern Shoshone's cultural and religious beliefs concerning eagles. See id. 2–7. The record here conclusively demonstrates that “the eagle is sacred to [the Eastern Shoshone's] religious beliefs and that they opposed allowing eagle take on the Reservation for this reason.” Defs.' Resp. 3–4, ECF No. 47. The Tenth Circuit has held that the government has a compelling interest in fostering the culture and religion of federally-recognized Indian tribes. See United States v. Wilgus, 638 F.3d 1274, 1288 (10th Cir.2011). Plaintiffs urge this Court to adopt a narrow understanding of this interest, one that recognizes the government's interest in fostering the cultural and religious practices of federally-recognized Indian tribes, but not its interest in fostering the tribes' cultural and religious beliefs. But Tenth Circuit precedent does not suggest such a distinction, and the Court declines to adopt the view that the federal government's compelling interest in fostering the culture and religion of federally-recognized Indian tribes does not encompass fostering and protecting their cultural and religious beliefs. Thus, contrary to Plaintiffs' argument, Defendants had a compelling interest in fostering the Eastern Shoshone's cultural and religious beliefs concerning eagles and properly took those beliefs into account while considering Plaintiffs' permit.

*3 Plaintiffs' second argument is that the Court failed to consider the substantial burden Wyoming's prohibition against eagle take imposes on Plaintiffs' religious exercise. Pls.' Mot. 10, ECF No. 46 (“The judgment did not consider the ban under State law or the additional burden this places on Plaintiffs.”). Plaintiffs' argument betrays a misunderstanding of the Court's order. Because the Court based its judgment on the compelling interest/least restrictive means aspect of RFRA, the Court assumed (without deciding) that the permit—including its requirement that Plaintiffs comply with Wyoming law—imposed a substantial burden on Plaintiffs' religious exercise. See Order 16, ECF No. 45. Plaintiffs' argument that the Court overlooked the burden Wyoming law imposes on Plaintiffs' religious exercise ignores that, for purposes of its order, the Court assumed that Plaintiffs were correct that Wyoming law imposes a substantial burden on Plaintiffs' religious exercise.FN2

FN2. The Court has not previously and does not here address the question of whether the permit imposes a substantial burden on Plaintiffs' religious exercise.

Plaintiffs' third argument is that the Court misapprehended and misapplied the Tenth Circuit's Wilgus decision. See id. at 7–9. Not much can be said regarding this argument other than that the Court disagrees with Plaintiffs' understanding of Wilgus and believes that the Court correctly applied Wilgus to the facts here.

Plaintiffs' fourth argument is that the Court misapprehended Plaintiffs' position by failing to consider other alternatives that Plaintiffs advanced. See id. at 11. As a threshold matter, Plaintiffs argued in their brief and at oral argument that the Court should order Defendants to permit Plaintiffs to take eagles within the Reservation. The Court disagrees that Plaintiffs presented the Court with any of the alternatives that Plaintiffs now raise in their present motion. Regardless, Plaintiffs' proposed alternatives-allowing eagle take within the Reservation on lands owned solely by Arapaho tribal members, on lands owned solely by the Northern Arapaho Tribe, or on lands owned jointly by the Northern Arapaho and Eastern Shoshone-are not materially different than the alternatives the Court considered in its order. All of Plaintiffs' alternatives involve eagle take within the Reservation, and it is that feature which formed the basis for the Eastern Shoshone's objection to Plaintiffs' permit application, Defendants' decision to exclude the Reservation from Plaintiffs' permit, and this Court's conclusions in its order. None of Plaintiffs' alternatives advance Defendants' compelling interest in fostering the cultural and religious beliefs of the Eastern Shoshone concerning eagles. Rather, Plaintiffs' alternatives would require Defendants to impermissibly disregard the Eastern Shoshone's cultural and religious objections to eagle take within the Reservation. See Order 19–20, ECF No. 45. Plaintiffs' alternatives are variations on a position that this Court already has rejected. See id.

CONCLUSION

Because the Court concludes that none of Plaintiffs' arguments has merit, the Court DENIES Plaintiffs' motion to alter or amend its judgment (ECF No. 46). The Court further ORDERS that Plaintiffs advise this Court within fourteen (14) days of this order whether they wish to proceed with their free exercise and APA claims or voluntarily withdraw those claims and seek an appeal.

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map