F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

O K L E V U E H A N A T I V E A M E R

I C A N C H U R C H O F H A W

A I I , I N C

. ; M I C H A E L R E X M O O N E Y , AKA Rag ing B ear,

Plaintiffs-Appellants

,

v

.

L O R E T T A E. L Y

N C H , Attorney General; M I C H E L E L E O N H A R T , as Acting Administrator of the U.S. Drug Enforcement Administration; F L O R E N C E T. N A K

A K U N I , U.S. Attorney for the District of Hawaii, Defendants-Appellees. N o. 14-15143

D.C. No. 1:09-cv-00336- SOM-B MK

OPI NI ON

A ppeal from the United States District Court for the District of Hawaii Susan Oki Mollway , Chief District J udg e, Presiding

Arg ued and Submitted October 16, 2015—Honolulu, Hawaii

F iled April 6, 2016

B efore: Diarmuid F . O’Scannlain, Richard C. Tallman, and Milan D. Smith, J r., Circuit J udg es.

Opinion by J udg e O’ScannlainO K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 2

SUMMARY *

Religious F reedom Restoration Act

The panel affirmed the district c ourt’s summary judg ment in favor of f

ederal officials, and held that the district court properly denied the plaintiffs – Oklevueha Native American Church of H awaii, I nc. and its founder, Michael Rex “Rag ing B ear” Mooney – an ex emption from federal laws p rohibiting the possession and distribution of cannabis.

Concerning plaintiffs’ c laimed violation of the Relig ious F reedom Restoration Act, the panel held that even assuming that p laintiffs’ use of cannabis constituted an “ex ercise o f relig ion,” no rational trier of fact could conclude on the

reco r d t h at a prohibition of cannabis use imposed a “substantial burden” o n plaintiffs’ ex ercise of relig ion. Specifically

, the panel held that nothing in the r ecord demonstrated that a prohibition on cannabis forced plaintiffs
to choose between obedience to their relig io n a n d criminal sanction, such that they were being coerced to act contrary to their relig ious beliefs; and this was f ata l t o their claim. The panel also held that p laintif fs ’ a d mission that cannabis was merely a substitute for p e y o t e also disting uished their case from Holt v. Hobbs

, 1 35 S. Ct. 853 (2015) (holding that there

was a Relig ious L and U se and I n stituti o n a liz ed Persons A ct violation where the prison’s refusal to g rant a Muslim inmate

a relig ious ex emption to g row a half-inch beard forced him to choose between a v i olation of h is relig ious beliefs o r face serious disciplinary

action).

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 3

Concerning plaintiffs’ claimed violation of the American I ndian Relig ious F reedom Act, the panel held that the A ct does not create a cause of action or any judicially enforceable individual rig hts.

COUNSEL

Michael Andrew Glenn, L ow Cost L eg al Services, Honolulu, Hawaii, arg ued the cause and file d the briefs for the plaintiffs-appellants.

L owell V. Sturg ill, J r ., United States Dep a r tment o f J ustice, W a shing ton, D.C., arg ued the cause and filed the brief f or the defendants-appellees. W ith h im on the brief were S t u a rt F

. Delery and Mark Stern, U nited States Department of J ustice, W a shing ton, D .C., and F lorence Nakakuni, U n ited States Attorney s Office, Honolulu, Hawaii.

Kristen A. Carpenter, University of Colorado L aw School, B oulder, Colorado, f

iled a brief on behalf o f amici curiae N a t i o nal Council of Native American Churches, Nativ e American Church of North America; Az ee B ee N a h a g h a o f Dine N ation; Native A m e rican Church, State of O klahoma; and Native American Church, Stat e of South Dakota in support of the defendants-appellees.O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 4

OP INION

O’SCANNL AI

N, Circuit J udg e:

The Relig ious F reedom Resto ration Act mandates that the federal g overnment may not substantially burden a person’s relig ious e x ercise unless it uses the least restrictive means to further a compelling interest. W e must decide whe ther the district court properly denied a church and its f o u n d e r an

ex e mption from federal laws prohibiting the poss e s s ion a nd distribution of cannabis.

I

Michael Rex “Rag ing B ear” Mooney is the fou n der, president, and “Medicine Cu s t odian” of Oklevueha Native American Church of Hawaii, I nc. (“Oklevueha”). A ccording
to Mooney and Oklevueha, members of t h e church “receive communion throug h cannabis in their rel ig ious ceremonies and daily worship.” Specifically

, they assert that “Mooney

u s e s cannabis sacrament daily

, and [ Oklevueha] us e s cannabis in its ‘sweats,’ which o c c u r approx imately twice a month during the new moon and the full moon.” They f urther alleg e that Oklevueha’s primary purpose is “ t o administer Sa cr a m e ntal Ceremonies,” which include a “sweat lodg e ceremony ,” a s well as pey o te, br e a t h

, and pipe ceremonies. According to Mooney
, these ceremonies “help people reg ain their relationship with the Creator,” and g ive parti c i p ants a “direct connection” with the divine.

Mooney and Okl e v u eha d escribe their relig ion a s “pey otism.” B ut unlik e traditional p e y otism, Mooney a nd Oklevueha consider “canna b i s , in a ddition to pey ote, to be sacred or most holy .” Specifically

, they state that “Pey ote isO K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 5

the sig nificant sacrament” and that they consume cannabis “in addition to and in th e [ s i c ] substitute for their primary entheog enic sacrament, Pey o te.” F urther, Mooney a nd Oklevueha ex plain that they “honor[ ] and embrace[ ] a ll entheog enic n aturally occurring su b stances, including Ay ahuasca, Cannabis (aka Rosa Maria and Santa Rosa), I bog a, Kava, Psilocy

bin, San Pedro, S o m a , Teonanacaty l, Tsi-Ahg a , and many others.” As they describe it, the purpose of their cannabis use “is similar to the purpose of many other intensive relig ious practices—to enhance spiritual awareness or even to occasion direct ex perience of the divine.”

A

Mooney and Oklevueha filed t heir initial complaint
ag ainst v arious federal officials in 2009, a l leg ing that a member of the church had h is cannabi s seiz ed and that the threat of f ederal prosecution for cultivating

, possessing

, a nd distributing cannabis was “ex ceeding ly r eal.” They soug ht declaratory and injunctive relief u nder the Relig ious F reedom Restoration A ct (“RF RA”), 42 U .S.C. § 20 0 0 b b et seq. , the American I ndian Relig ious F reedo m Act (“AI RF A”), 42 U.S.C. § 1996, the F ree Ex ercise Clause

, a n d the E q ual Protection Clause. Specific al l y , Mooney and Oklevueha
soug h t to prevent the g overnment fr o m p rosecuting them under the Controlled Substances Act (“CSA” )

, 2 1 U .S.C. § 801 et seq. , for possessi ng cannabis for relig ious o r therapeutic use, obtaining canna b i s , and cultivating o r distributing cannabis consistent with state law.

The d i s trict court dismissed Mooney ’s and Oklevueha’s claims o n ripeness g rounds. M o o n ey and Oklevueha appealed, and we reversed in Oklevueha Native Am. Church of Hawaii, Inc. v. Holder , 676 F .3d 829 (9th Cir. 2012).O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 6

B

Fo llowing remand, the g overnment broug ht a rene w e d motion to dismiss u nder R u le 12(b)(6) which the court gr anted w ith respect to the AI RF A claim, the free e x er ci s e claim and the e qual protection claim, b ut denied w ith respect to the RF RA claim. After d iscovery

, the g overnment broug ht

a motion for summary judg ment o n t h e remaining RF RA claim, which the district court g ranted.

The district court observed that Mooney and Oklevueha had produced “almost no admissible evidence reg arding their relig ion,” and that “[ n] o reasonable juror could infer

. . . that Mooney ’s relig ion i s a ny thing more than a strong ly h eld belief in the importance or b e n efits of marijuana.” The district court also concluded that Mooney and Oklevueha h ad
not met their evidentiary burden i n d emonstrating that a prohibition on cannabis constituted a “substantial burden” on their relig ion. Mooney

and Oklevueha timely

appealed.

I I

W e review a district court’s g rant of summary judg ment de novo. Nigro v. Sears, Roebuck & Co. , 784 F .3d 495, 497 (9th Cir. 2015). T hus, we must “determine, viewing the evidence in the lig ht most favorable to the nonmoving party , whether there are any g enuine issues o f materi a l fact a nd whether the district court correctly a pplied th e relevant substantive law.” SEC v. P han

, 500 F .3d 895, 901 (9th Cir. 2007) (citation omitted); see F e d. R. Civ. P. 5 6(a). A f actual issue is g enuine if “a reasonab l e jury could return a verdict for the n onmoving party

. ” Anderson v. Liberty Lobby, Inc.
, 477 U.S. 242, 248 (1986).O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 7

I I I

Mooney and Oklevueha first arg ue that the district court erred in g ranting summ ary judg ment to the g overnment on their RF RA claim. RF RA “suspends g enerally applicable federal laws that ‘substantially burden a person’s ex ercise o f relig ion’ unless the laws a re ‘ the least restrictive means o f furthering [ a] compelling g overnmental interest.’” United State s v

. Antoine
, 318 F .3d 919, 920 (9th Cir. 2 003) (alteration in orig inal) (quoting 42 U .S.C. § 2 0 0 0 b b

- 1 ( a ) –(b)). To establish a prima f

a c ie claim under RF RA, a plaintiff must “present evidence sufficient to allow a trier of fact rationally
to find the ex istence o f two elements.” Navajo Nation v. U .S. Forest Serv.
, 535 F .3d 1058, 1068 (9th Cir. 2008) ( en banc). “F irst, the activities the plaintiff claims are burdene d b y the
g overnment action must be an ‘ex ercise of relig ion.’” Id. (quoting 42 U.S.C. § 2000bb-1(a)); see also United S tates v

. Zimmerman , 514 F .3d 851, 853 (9th Cir. 2007) (per curiam) (observing that a litig ant “may only invok e RF RA if his beliefs are both ‘sincerely held’ and ‘ r o o ted in relig ious belief, not in “purely secular” philosophical concerns’” (citation omitted)). “Second, the g overn m e n t action must ‘substantially burden’ the p laintiff’s ex ercise of relig ion.” Navajo Natio n , 5 3 5 F .3d at 1068 (quoting 42 U .S.C. § 2000bb-1(a)). W here a plaintiff has established these elements, “the burden o f persuasion shifts to the g overnment t o prove that the challeng ed g overnment action i s i n furtherance o f a ‘compelling g overnmental interest’ a nd is implemented by ‘the least restrictive means.’” Id. (quot ing 42 U.S.C. § 2000bb-1(b)).O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 8

A

The parties disag ree as to whether enoug h evidence ex ists
t o create a g enuine factual dispute about whether Moon e y ’s and Ok l evueha’s cannabis use amounts to an ex ercise o f relig ion. L ike the district c o u rt, we are skeptical that such a g enuine issue o f fact ex ists. Nonetheless, we need not reach this question on appeal, because even assu m i n g s uch use constitutes a

n “ex ercise o f r e l i g ion,” no rational trier of fact could conclude on this record th a t a prohibition of cannabis use imposes a “substantial burden.”

B

RF RA itself provides no ex plicit definition of “substa n t i a l burden.” However, we have h e l d t h at the meaning of the
term c an be ascertained by lookin g t o “ a body of Supreme Court case law” decided before Employment Div i s i o n v

. Smith

, 494 U.S. 872 (1990), the case that was the impetus for RF RA’s passag e. Navajo Nation
, 535 F .3d a t 1 0 67–68; see also 4 2 U.S.C. § 2000bb(a)–(b) (ex plaining RF RA’s attempt to r estore pre- Smith protections for reli gi ous ex ercise). L ooking t o t h a t pre- Smith case law, we have held that a substantial burden under RF RA ex ists in a co n t e x t such a s t h i s one “only when individuals are

. . . coerced to act contr a ry to their r elig ious beliefs by the threat of civil o r criminal sanctions . . . .” Navajo Nation
, 535 F .3d at 1070. 1 Nothing in t h e record indicates that Mooney or Oklevueha

1 Mo o n ey an d O k lev u eh a m ak e n o alleg atio n th at th e CSA ’ s pro h ib itio n

o n can n ab is “ f

o rce[s] [th em ] to ch o o s e b e t w een f o llo w in g th e ten ets of th eir relig io n an d receiv in g a g o v ern m en tal ben ef it,” th e o th er k i n d of

su b stan tial b u rd en w e h av e reco g n ized u n d er R FR A. N a va jo Na tio n , 5 3 5 F.3 d at 1 07 0

.O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 9

face such a dilemma, because they have ex pressly told us that foreg oing cannabis is not contrary to their relig ious beliefs.

Mooney and Oklevueha state in no uncertain terms that “Pey ote is the sig nificant sacrament,” and that they consume cannabis only “in addit i o n to and in the [ sic] substitute for their primary entheog enic sacrament, Pey ote.” They make no claim that pey ote is unavailable or that cannabis s erves a unique relig ious function. W hat is more, their c ertified complaint st ates that O klevueha “ honors and embraces all entheog enic n aturally occurring sub stances, including Ay ahuasca, Cannabis (aka Rosa Maria and Santa Rosa), I bog a, Kava, P s i locy

bin, San Pedro, Soma, Teonanacaty l, Tsi-Ahg a , and man y others.” Put simply

, nothing in the record demonstrates that a prohibi tion on cannabis forces Mooney and Oklevueha to choose b etween obedience to their relig ion and criminal sanction, s u ch that they are being

“ coerced to act contrary to their relig ious 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 f

atal to their claim. See Ruiz-Diaz v. United States
, 703 F .3d 483, 486 ( 9th Cir. 2012) ( e x p laining the
nature o f the “ forced choice” captured in RF RA’s substantial b u r den component and finding plaintiffs’ RF RA claim no n

meritorious because “the challeng ed reg ulation does not affec t their a

bility to practice their relig ion”); Snoqualmie I n d ian Tribe v. FERC
, 545 F .3d 1207, 1213–15 (9th C i r. 2008) (finding no substantial burden w here plaintiffs f ailed to alleg e g overn m e n t action “coerce[ d] them into a Catch-22 situation”).O K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 10

1

Mooney an d Oklevueha cite Burwell v. Hobby Lobby St o res, Inc.
, 134 S. Ct. 2751 ( 2014), to arg ue that “a court must n ot d ecide the plausibility of a relig ious claim.” Such

a contention is of course c orrect, but it does nothing to demonstrate that a p r o h i bition on cannabis actually burdens Mooney ’s or Oklevueha’s relig ious ex ercise. I n co n c l uding that Mooney

and Oklevueha have created no triable issue o f fact to satisfy RF RA’s sec o n d e l e ment, we do not p ass judg ment o n the plausibility of their relig ious beliefs or “ tell the plaintiffs that th eir b eliefs are f lawed.” Hobby Lobby

, 134 S. Ct. at 2778. On the contrary , we simply c onclude that the evidence i s i nadequate to support the finding of a substantial burden. That conclusion is amp ly supported b y Hobby Lobby

and other recent Supreme Court precedent.

I n Hobby Lobby

, the Supreme Court held t h a t f or-profit b usinesses whose owners o bjected to providing several contraceptives required b y reg ulations promulg ated under the A ffordable Care Act were e ntitled to an ex emption un d e r RF RA. Id. at 2759. I n so holding

, the Court concluded that
t he g overnment had imposed a substantial b urden b y demanding the b u s inesses and their owners “eng a g e in conduct that seriously v i o l ates their r elig ious beliefs” b y requiring th e m to provide abortifacients or face sig nificant financial p enalties. Id. at 2775. Mooney and Oklevueha have alleg ed n o anal og ous burden. I n deed, their counsel at oral
arg ument admitted on multiple occasions that no relig ious ceremonies eng ag ed in by Mooney o r Oklevueha ac t u ally require the use of cannabis

, and that cannabis is simply a substitute for pey ote. W e fail to see how prohibiting a substance that Mooney a n d O klevueha freely admit is a substitute would force them to act at odds with their relig iousO K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 11

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

2

L ikewise, Mooney ’s and Oklevueha’s a dmission that cannabis is mere l y a substitute f o r pey ote also disting uishes their case from Holt v

. Hobbs

, 135 S. Ct. 853 ( 2015). I n Holt

, the Supreme Court found that the Relig ious L and U s e a n d I nstitutionaliz ed Persons Act (“RL UI PA”), 4 2 U .S.C. § 2000cc e t seq. , the “sister statute” to RF RA, r eq uired a prison to g rant a M u s lim inmate a relig ious ex e mption to g row a half-inch beard. Id. at 859. The district c ourt h ad held that the inmate’s relig ion was not substantially burdened by the prison’s g r ooming policy because the inmate was able
to eng ag e in “other forms o f relig ious ex ercise” such as use of a pray er rug , distribution o f I s l a mic material, a nd observation of relig ious holiday s. Id. a t 862. The Court rejected that conclusion, reasoning that the p rison’s refusal to allow the inmate to g row a beard still f orced h im to choose between “‘eng ag [ ing ] in conduct that seriously violates [ his] relig ious beliefs’” o r “fac[ ing ] ser i ous disciplinary action.” Id. at 862 (quoting Hobby Lobby

, 134 S.Ct. at 2 775)

. B y contrast, Mooney and Oklevueha h ave produced no evidence
t h a t deny ing them cannabis forces them to choose b etween relig ious obedience and g overnment sanction, since they have stated in no uncertain term s that many other substances in c l u d ing pey ote are capable o f serving the ex a ct same relig ious function as cannabis.

I V

Mooney and Oklevueha also arg ue that the district court erred in dismissing their claim under the American I n d ianO K L E V U E H A N A T I V E A M

. C H U R C H V

. L Y

N C H 12

Relig ious F reedom Act. AI RF A declares that it is “the p olicy of the United States t o p rotect and preserve for American I ndians their inherent rig ht of freedom to

. . . e x ercise the
tr a d i tional r elig ions of the American I ndian, Eskimo, A leut, and Native Hawaiians . . . .” 42 U.S.C. § 1996. Contrary to Mooney ’ s and O klevueha’s assertions, however, AI RF A “does not create a c a

use of action o r a ny judicially enforceable individual rig hts.” United States v. Mitchell

, 502 F .3d 931, 949 (9th Cir. 2007) (quoting H enderson v. Terhune

, 379 F .3d 709, 71 1 ( 9th Cir. 2 0 04)); see also Lyng v

. Northwest Indian Cemetery P rot e c tive Ass’n
, 485 U.S. 439, 455 (1988).

V

The district court’s g rant o f summary judgm ent was proper.

AF F IRMED.