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Gregory J. Kuykendall, Bar # 012508

Amy P. Knight, Bar # 031374

KUYKENDALL & ASSOCIATES

531 S Convent Avenue

Tucson, AZ 85701

(520) 792-8033

greg@kuykendall-law.com

amyknight@kuykendall-law.com

Pro Bono Attorneys for Defendant Scott Daniel Warren

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America,

Plaintiff,

vs.

SCOTT DANIEL WARREN,

Defendant.

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No. 17-mj-00341-RCC(JR)

DEFENDANT’S PROPOSED 

FINDINGS OF FACT AND 

CONCLUSIONS OF LAW

Defendant Scott Daniel Warren submits proposed findings of fact and conclusions 

of law based on the evidence presented at the trial in this matter conducted May 6-8, 2019. 

I. FINDINGS OF FACT

A. BACKGROUND

1. From 2000 through the end of 2017, the Pima County Office of the Medical Examiner 

(PCOME), which has jurisdiction over three of the four Arizona counties that border 

Mexico (Day 21 at 5), received over 2,800 recovered human remains of people it believes

to be undocumented border crossers (Day 2 at 14; Exhibit 101). Many of these deaths 

 1 The defendant testified over the course of two days; a number of other witnesses also 

testified on both days and on a third day. The Court Reporter prepared transcripts of the defendant’s testimony separately (and separately paginated) from other witnesses. For clarity, the transcripts will be cited simply as “Day 1” which refers to other witness testimony 

on May 6, 2019; “Def. Day 1,” which refers to the defendant’s testimony on May 6, 2019; 

“Day 2” and “Def. Day 2,” which refer to the testimony on May 7, 2019, and “Day 3,” which refers to the testimony on May 8, 2019.

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are attributable to exposure, which includes hyperthermia and dehydration (Day 2 at 18-

19). Recoveries of remains have generally spiked during the extremely hot summer 

months (Day 2 at 16). Only about half of the remains are discovered by law enforcement; 

the rest are found by others, including humanitarian groups (Day 2 at 12). In all 

probability many more human remains exist that have never been recovered.

2. A number of humanitarian groups formed in Southern Arizona in the early 2000’s to 

respond to these deaths and attempt to prevent them from occurring. Those groups 

include the Samaritans, No More Deaths (NMD), and Humane Borders (Day 2 at 37-38). 

They use a combination of strategies to reduce death and suffering, including placing 

large water barrels in the desert, placing blue flags on existing non-potable water sources, 

placing one-gallon jugs of water, canned food, and medical supplies in the desert in areas 

heavily traveled by migrants, conducting search-and-rescue operations, and searching 

for the remains of people who have died to facilitate their recovery by authorities, 

identification, notification of the families, and dignified burial.

3. PCOME provides data about the number and location of recovered remains to the public 

(Day 2 at 42). Dr. Ed McCullough, a retired geology professor and volunteer with the 

Samaritans, creates maps showing where remains have been found each month, and 

provides them to NMD (Day 2 at 44-45). NMD uses this information to decide where to 

conduct their work (Day 2 at 63). 

4. The crisis of migrant deaths that has continued since the PCOME began compiling its 

data in 2000 is concentrated in certain, often remote areas where large numbers of deaths 

cluster. One such area with a particularly large number of deaths is the Growler Valley 

(Def. Day 2 at 6; Exhibits 102, 103, 104; Day 2 at 45), which is within the Cabeza Prieta 

National Wildlife Refuge (CPNWR).

5. The CPNWR is a vast expanse of federal land to the West of Tucson and the Tohono 

O’Odham Nation Reservation and to the East of Yuma. The refuge borders on the town 

of Ajo. It encompasses over 860,000 acres, including 56 miles of border with Mexico

(Day 3 at 4-5). 806,000 acres of the CPNWR are designated as a wilderness area, 

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meaning it is subject to a specific set of more restrictive rules and regulations concerning 

its use (Day 3 at 4). The entire refuge, including the wilderness area, is under the 

jurisdiction of the United States Fish and Wildlife Service (FWS). FWS officers find 

human remains within the refuge (Day 2 at 52), although they do not keep track of the 

number of deaths in their jurisdiction (Day 2 at 102).

6. To enter the CPNWR, members of the public are required to obtain a permit (Day 1 at 

14). This permit allows access to the refuge, and allows driving on public roads, but not 

on so-called “administrative” roads in the designated wilderness (Day 1 at 27). The 

boundaries of the wilderness area, and the restrictions on access to those roads, are clearly 

marked with signs (Day 1 at 32). To obtain the permit, visitors must sign a “Hold 

Harmless Agreement” (Day 1 at 49). This document advises visitors that the CPNWR 

“is one of the most extreme environments in North America” (Day 1 at 51). According 

to one FWS officer who testified, it is “terribly dangerous to be out on the refuge without 

sufficient water” (Day 1 at 61). In June, 2017—after Dr. Warren was cited in the 

CPNWR—the government changed the language on this agreement, adding an explicit 

requirement to remove all items brought onto the refuge, with a list specific items visitors 

were not allowed to leave behind, including water, food, blankets, and medical supplies 

(Day 2 at 115). The purpose of this change was to make the rules clear (Day 2 at 114). 

7. Since 2013, defendant Dr. Scott Warren has resided full-time in Ajo, where he is an 

active volunteer with both Ajo Samaritans and NMD (Def. Day 1 at 12-13). Dr. Warren 

holds a Ph.D. in geography and completed his doctoral dissertation about Ajo (Def. Day 

1 at 12). In 2014, Dr. Warren made contact with NMD, and, due to the need he had 

observed there, encouraged them to extend their work to the Ajo region (Day 2 at 61). 

8. NMD volunteers regularly conduct “missions” or “patrols” on which they place food, 

water, and other supplies and also search for human remains (Day 2 at 64). The supplies 

are not placed randomly, but at specific “water drop” sites they identify, maintain, and 

carefully log using GPS coordinates (Day 2 at 65). The “water drops” are intentionally 

located where migrants are known to have died. (Day 2 at 74). They also inventory what 

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remains from their last visit to assess the effectiveness of each site (Day 2 at 74). They 

bring large trash bags with them on their patrols and collect empty water bottles and trash 

from their sites (Day 2 at 21-22; 66); they also collect any other trash they find (Day 2 at 

21). They bring loads of trash and recycling to the Ajo dump “at least once or twice a 

week” (Day 2 at 72). If their supplies have not been used, they remove them or move 

them to a different location; they do not intend for them to remain in the refuge 

indefinitely (Def. Day 2 at 23). They never drive off-road in the refuge (Day 2 at 73). 

B. FINDINGS OF FACT REGARDING DR. WARREN’S RELIGIOUS BELIEFS

9. Dr. Warren testified at length about his beliefs, and his testimony was credible. His 

manner appeared sincere, and he testified to having written and published about some of 

these beliefs for years prior to these charges (Def. Day 1 at 22). His belief system has 

evolved over time from values initially instilled by his parents. (Def. Day 2 at 13). 

10.Dr. Warren testified that “all life is sacred, and places are sacred as well” (Def. Day 1 at 

17). By this he means “the sense of sacredness is in the continued presence and the sort 

of life force of people and of the places and the struggle that people undergo in that 

particular place, and to me that creates a thing that is quite sacred and needs to be honored 

as such” (Def. Day 1 at 17). “Life force,” in his belief system, is “something that I feel 

and I sense when I’m in these places, when I’m in a place like Ajo” (Def. Day 1 at 18). 

Dr. Warren believes a place gets imbued with “life force” especially when people die 

there alone, with “nobody there to witness them when they died” (Def. Day 1 at 19). 

11.Finding human remains is a spiritual experience for Dr. Warren: “the act of witnessing 

where somebody has died in the desert is an act of spiritual completion for them, and 

when we can witness where somebody died, that to me is the thing that makes their—

their soul live on in that place” (Def. Day 1 at 19-20). Dr. Warren believes that when

someone dies alone in the desert, “it’s as if they sort of remained in a kind of in-between 

state until they can be witnessed” (Def. Day 1 at 21). He believes that bearing witness to 

the remains of a person who likely died alone creates a connection between his soul and 

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the soul of the deceased person, and that connection lasts forever (Def. Day 1 at 22). 

Many if not most of the people who die crossing the desert die alone (Def. Day 1 at 21). 

12.Dr. Warren also attaches spiritual significance to the placement of water and supplies in 

the desert. He testified, “that act of putting down a gallon of water, say, and knowing that 

it goes from my hand onto the ground, sacred ground where someone has died, and 

somebody else will pass through there at some point on that same sacred ground and pick 

that gallon of water up, is to me a connection as well” (Def. Day 1 at 24). In his belief 

system, “that provision of humanitarian relief to people, that kind of direct care for 

people, is equally as sacred as witnessing where people have died” (Def. Day 1 at 29). 

13.Dr. Warren engages in rituals in connection with this work, including a moment of 

silence at the beginning and end of weekly meetings (Def. Day 1 at 23). The places he 

puts water are “either where somebody has died in that immediate vicinity or very close 

by, so that ground to me is sacred any time we go there, and I take a moment to reflect 

on and. . . bless those things that we put out, those gallons of water and other kinds of 

humanitarian supplies” (Def. Day 1 at 23-24). When he finds remains, he will take a long 

moment of silence, then “face the remains of the person and offer a kind of silent 

acknowledgment, and the I turn away from the site, and I will kneel down and pick up 

two handfuls of dirt or rocks, whatever kind of soil it is, and I’ll hold that in my hands, 

sort of mash it together, let it fall out of my hands. . . That is both sort of an act of, like, 

holding the person and then releasing, releasing them” (Def. Day 1 at 25-26). Dr. Warren 

believes that this allows that person’s soul to be free from the pain of his death (Def. Day 

1 at 26). Another witness, a Franciscan Friar who has accompanied Dr. Warren on a 

desert trip, testified that he has observed Dr. Warren engage in spiritual ritual upon 

finding a human skull (Day 2 at 150-51). In addition, NMD as a group, while nondenominational, engages in spiritual and ceremonial activity, including what one 

volunteer referred to as “reconsecrat[ing]” their space in a ceremony led by clergy at a 

place that is their “spiritual center” (Day 2 at 68). 

14.The choice of location for this work is far from arbitrary; Dr. Warren’s beliefs attach a 

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special significance to Ajo and the surrounding desert, which he explained “is very 

distinct. The place is unique in that regard” (Def. Day 1 at 17). He testified that the large 

number of people who have died in and near Ajo makes that place in particular important 

to him (Def. Day 1 at 16). For Dr. Warren, in the CPNWR specifically, rocks, plants, and 

soil all have “life force” (Def. Day 1 at 18-19). 

15.Dr. Warren and his colleagues choose locations based on where he has personally found 

bodies, as well as based on the PCOME data and maps NMD receives. Water drops are 

made “in places where there’s concentrations of human remains recoveries” (Def. Day 1

at 25). This choice of location is an essential part of his religious exercise. As he testified, 

“[t]o neglect that area of greatest need to me would be sort of just engaging in a hollow 

performance of what’s really needed in the witnessing and the practice that I undertake” 

(Def. Day 1 at 40). Searching for remains or leaving water and other supplies in other 

places, where remains are not concentrated, does not satisfy Dr. Warren’s religious 

beliefs. He testified that he could not “adequately exercise [his] faith by putting out 

supplies for migrants in need or a migrant that might pass by in need in a place other than 

where” the remains were concentrated, and that that is “not the actual, to me, the actual 

sacred act of putting those things where they are needed” (Def. Day 1 at 41-42). 

16.Dr. Warren can only hike limited distances under the prevailing conditions in the areas 

where his beliefs require that he do this work. FWS recommends that anyone hiking in 

the refuge carry two gallons of water per person per day (Day 2 at 118); this is in addition 

to the supplies Dr. Warren needs to carry to leave for people in danger. He testified that 

“typically for me a distance of three to four miles when carrying lots of supplies over 

that kind of rugged terrain and in that heat is about my limit” (Def. Day 1 at 40-41). 

Hiking this distance from the wilderness boundary—the point up to which a person may 

drive without violating any law—would get him only to the very edge of the critical 

areas.

C. FINDINGS OF FACT REGARDING JUNE 1, 2017

17.On June 1, 2017, Dr. Warren drove a white dodge truck belonging to the Unitarian 

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Universalist Church of Tucson to the CPNWR, along with two other vehicles in a group 

totaling 13 individuals, all volunteering with NMD (Def. Day 1 at 45). The group loaded 

up the three trucks together with supplies and left from Ajo early in the morning (Def. 

Day 1 45-46).

18.Dr. Warren had a valid permit to be on the refuge; it was the pre-revision version, and it 

did not allow him to be on the restricted roads (Day 1 at 26; Day 2 at 112-113).

19.Dr. Warren drove the truck along the public portion of Charlie Bell Road to Charlie Bell 

Pass, where the public road ends, and then continued driving on the road after it entered 

the designated wilderness, where it was closed to the public, to Charlie Bell Well and 

farther still, until he parked the truck just off the administrative road approximately eight

tenths of a mile beyond Charlie Bell Well (Day 1 at 21), with full knowledge that he was 

in a wilderness area on a road closed to the public (Def. Day 1 at 47-48). There are no 

public roads by which the truck could have reached that location (Day 1 at 22). FWS 

Officer Joseluis Valenzuela observed the white truck at that location (Day 1 at 22); 

subsequently, four individuals arrived including Dr. Warren, and Dr. Warren admitted to 

being the driver (Day 1 at 28). The location where Officer Valenzuela encountered Dr. 

Warren is right in the middle of a very pronounced cluster of locations where human 

remains have been found in the Growler Valley (Day 2 at 46; Exhibit 102).

20.Dr. Warren and the other volunteers placed supplies at a number of sites on the refuge 

that day, all of which were established “water drop” sites (Def. Day 1 at 47). The supplies 

included gallon jugs of water, food, and medical supplies (Def. Day 1 at 51).

II. CONCLUSIONS OF LAW

A. ABANDONMENT OF PROPERTY

21.To establish a violation of 50 CFR 27.93, the government must prove Defendant 

abandoned, discarded, or otherwise left personal property in a national wildlife refuge. 

“Abandon” means leaving something behind with no intention of removing it. See 

United States v. Walker, 2006 U.S. Dist. LEXIS 45542 (S.D. Ill. June 22, 2006); see 

also Tait v. United States, 763 F. Supp. 2d 786, 796-98 (E.D. Va. 2011) (abandonment 

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requires an intentional relinquishment of rights in private property with no intention to 

return to that property at a later time.” (emphasis added). Ninth Circuit precedent 

explicitly excludes the placement of bottles of potable water for human consumption 

from the definition of “discard.” United States v. Millis, 621 F.3d 914, 917 (9th Cir. 

2010). “Otherwise leave” is not defined, and is ambiguous; it obviously cannot 

encompass all instances of setting down some property and walking away for a time, as 

the refuge permits camping. Moreover, FWS officials thought text was unclear on its 

face, as they changed the language on their agreement to include items such as bottles 

of water and medical supplies after the June 2017 incident with Dr. Warren specifically 

for the purpose of making it clear. “The rule of lenity ‘requires courts to limit the reach 

of criminal statutes to the clear import of their text and construe any ambiguity against 

the government.’” Millis, 621 F.3d at 916-17. Because, especially absent the 

government’s subsequent explicit interpretation, it is ambiguous whether, with the 

phrase “abandon, discard, or otherwise leave,” this regulation encompasses the 

placement of emergency supplies specifically for the use of other human beings, with 

the intention of returning for the supplies if they were not used, or for the empty 

containers if they were used, this Court must interpret it against the government. 

Placing emergency supplies for the use of others with the intent to return at a future 

time, rather than leaving them behind permanently as unwanted, does not constitute 

abandonment of property.

22.NMD volunteers log the location and amount of supplies they place, and return to the 

sites to collect and remove empty containers, as well as full ones that have gone 

unused. Dr. Warren testified that he routinely finds as many empty water bottles as full 

ones he had left (Def. Day 2 at 21). Dr. Warren also testified that in placing the 

supplies, he is not discarding them; rather, he intends them as a gift for people that need 

them to use them to drink” (Def. Day 2 at 21). Although one giving a gift may also 

intend to relinquish any ownership rights, that is clearly not the same thing as 

abandonment. Accordingly, in placing supplies for others’ use with the intent to return 

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for the containers, Dr. Warren did not violate the prohibition on abandonment of 

property.

B. OPERATING A MOTOR VEHICLE IN A WILDERNESS AREA

23. 50 CFR 35.5 provides that there shall be no use of motorized vehicles within a 

wilderness unit. Dr. Warren drove a pickup truck on a restricted road within a 

designated wilderness area. This constitutes a violation of 50 CFR 35.5.

C. THE RELIGIOUS FREEDOM RESTORATION ACT

24. “Congress enacted RFRA in 1993 in order to provide very broad protection for religious 

liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693 (2014). RFRA provides 

that the government may not “substantially burden a person’s exercise of religion . . . 

unless the Government ‘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(a), 

(b). RFRA can be raised as a “defense in a judicial proceeding,” including criminal 

proceedings. 42 U.S.C. § 2000bb-1(c). 

25.A RFRA defense proceeds in two parts. Navajo Nation v. United States Forest Serv., 535 

F.3d 1058, 1068 (9th Cir. 2008). First, the defendant must show that the government has 

imposed a “substantial burden” on his religious exercise. Id. Then, “the burden of 

persuasion shifts to the government to prove” that the imposition of the burden on the 

defendant satisfies strict scrutiny. Id. 

Exercise of a sincerely held religious belief

26.The Ninth Circuit has adopted the Supreme Court’s view from United States v. Seeger, 

380 U.S. 163, 185 (1965), and Welsh v. United States, 398 U.S. 333, 339 (1970), that 

religion should be defined in light of “the richness and variety of spiritual life in our 

country.” Seeger, 380 U.S. 163, 174. Protected beliefs not be “acceptable, logical, 

consistent, or comprehensible to others,” United States v. Zimmerman, 514 F.3d 851, 854 

(9th Cir. 2007) (per curiam), and protection is “not limited to beliefs which are shared 

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by all members of a religious sect.” Holt v. Hobbs, 135 S. Ct. 853, 862-63 (2015). Belief 

in God or a Supreme Being is not required; rather, “[r]eligious beliefs . . . are those that 

stem from a person’s ‘moral, ethical, or religious beliefs about what is right and wrong’ 

and are ‘held with the strength of traditional religious convictions.’” United States v. 

Ward, 989 F.2d 1015, 1018 (9th Cir. 1992) (quoting Welsh, 398 U.S. at 340). In Ward, 

the defendant “[did] not describe his beliefs in terms ordinarily used in discussions of 

theology or cosmology” and even “at one point use[d] the term ‘atheistic[.]’” Ward, 989 

F.2d at 1018. Nonetheless, given the strength with which Ward held his beliefs and the 

risks he shouldered to pursue them, the court held his beliefs were religious. Id. at 1019. 

“The task is to decide whether the beliefs professed . . . are, in [the person’s] own scheme 

of things, religious.” Id. at 1018; see also Hobby Lobby, 573 U.S. at 725 (Court’s task is 

to identify “an honest conviction”).

27.RFRA protects “any exercise of religion, whether or not compelled by, or central to, a 

system of religious belief.” 42 U.S.C. §§ 2000bb-2(4), 2000cc-5(7)(A); see also United 

States v. Antoine, 318 F.3d 919, 921 (9th Cir. 2003) (recognizing protection where 

“activities held religious significance to [defendant]”). 

28.The religious beliefs must also be “sincerely held.” That is, defendants do not receive 

protections under RFRA when their alleged religious motivation is “obviously [a] 

sham[],” AA ex rel. Betenbaugh v. Needville Indep. Sch. Dist., 701 F. Supp. 2d 863, 876 

(S.D. Tex. 2009) (citing Wisconsin v. Yoder, 406 U.S. 205 (1972)), aff’d, 611 F.3d 248 

(5th Cir. 2010). 

29.Dr. Warren’s actions constitute an exercise of sincerely held religious beliefs. The beliefs 

he described involve souls living on after death, and his own soul connecting with those

souls and also with the souls of those who will pass through a place, and are thus 

indisputably religious in nature. While he does not participate in a traditional organized 

religion, the beliefs he described occupy a place in his life akin to that occupied by 

traditional religion. No indication exists that his long-held and well-documented beliefs 

are anything other than sincere. His testimony was explicit that both placing water and 

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other humanitarian supplies and searching for human remains, specifically in particular 

areas where large numbers of deaths have occurred, are acts with religious significance 

for him. 

Substantial burden

30.A substantial burden exists where a person is “coerced to act contrary to their religious 

beliefs by the threat of civil or criminal sanctions.” Navajo Nation, 535 F.3d at 1069–70; 

see also Antoine, 318 F.3d at 921-23 (finding “the burden on religion is inescapable” 

where act with ‘religious significance” faced penalty of fine up to $5,000, jail up to a 

year, or both). It occurs when a person is forced “to choose between obedience to their 

religion and criminal sanction.” Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 

828 F.3d 1012, 1016 (9th Cir. 2016). 

31.The penalized or prohibited action need not be the actual religious practice itself, so long 

as it is necessary for engaging in the religious exercise. Thus, where a prison refused to 

allow Native American inmates access to traditional foods for a powwow ceremony, it 

substantially burdened their exercise of religion, even though it did not outlaw the 

ceremony itself. See Haight v. Thompson, 763 F.3d 554 (6th Cir. 2014) (“The greater 

restriction (barring access to the practice) includes the lesser one (substantially burdening 

the practice)”). 

32.A substantial burden does not exist where some available, legal substitute is “capable of 

serving the exact same religious function as” the prohibited activity. Oklevueha, 828 F.3d 

at 1017 (emphasis added). In such a case, the defendant is not faced with the binary 

choice of neglecting his religious practice or breaking the law; he has a third option of 

undertaking the same religious practice in a manner that does not break the law. 

However, the availability of other religious practices does not eliminate the substantial 

burden. See Holt v. Hobbs, 135 S.Ct. 853, 862 (2015) (noting that the “’substantial 

burden’ inquiry asks whether the government has substantially burdened religious 

exercise. . . not whether the RLUIPA2 claimant is able to engage in other forms of 

 2 RLUIPA, or the Religious Land Use and Institutionalized Persons Act, employs the same 

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religious exercise.”). 

33.Regarding abandonment of property, if this Court were to construe the regulation to 

prohibit the provision of humanitarian aid supplies with the intent to return at a later time, 

the regulation would outlaw the exact practice which, for Dr. Warren, is indisputably 

religious: the leaving of water and other supplies in desert areas marked by the heaviest 

loss of life. Dr. Warren’s beliefs entail doing this activity in places where the highest 

concentrations of human remains have been found (Def. Day 1 at 37), and the evidence 

showed that the CPNWR contains an area accurately described by one witness as a “trail 

of death” along the Western edge of the Growler Mountains (Day 2 at 50; Exhibits 102, 

103, 104). On the day for which he has been charged, Dr. Warren was working in the 

“area of greatest need,” as his beliefs require, and as the maps generated by data from 

the PCOME corroborate. Moreover, Dr. Warren’s religious beliefs place a special 

significance on the desert immediately surrounding his home of Ajo, Arizona; 

undertaking this practice elsewhere would not serve the “exact same religious function” 

as doing it in the CPNWR. See also Navajo Nation, 535 F.3d at 1070 (recognizing that 

denial of access to sacred area, unlike alteration to its character, would be a substantial 

burden). Dr. Warren thus faces a choice: violate a law, or refrain from this exercise of 

his religion. This forced choice constitutes a substantial burden.

34.Regarding the motor vehicle use, the law does not actually outlaw Dr. Warren’s religious 

practice of locating human remains to allow a release of the soul. It does, however, 

effectively deny him access to the areas where those remains are concentrated (i.e., the 

“area of greatest need”), and thus significantly interferes with his ability to locate them. 

It also denies him access to areas where, per his beliefs, he needs to place water and other 

supplies. He believes these areas are especially sacred not only for practical reasons, but 

because of the accumulation of death there; thus, even if he could find occasional bodies 

in other places, that would not serve the “exact same religious function.” Although FWS 

 standards as RFRA. See Hobbs, 135 S.Ct. at 862 (relying on Hobby Lobby, a RFRA case, in 

analyzing a RLUIPA issue). 

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does allow visitors to access wilderness areas on foot, given the steep, treacherous terrain 

and extreme summertime heat, it is not possible to reach the crucial areas by foot while 

carrying any significant amount of supplies for the religious practice of placing them for 

use by people in need (Def. Day 2 at 7). Dr. Warren explicitly testified that he had to 

drive on the restricted roads to reach those locations where he can practice his faith (Def. 

Day 2 at 7) and that he could not have hiked all the way to the site of his practice on the 

day he encountered the FWS officer (Def. Day 2 at 12). Effectively, to prohibit driving 

is to prohibit access.

35.Dr. Warren cannot carry out this exercise of his religion only in areas that are not subject 

to this restriction. The desert surrounding Ajo has unique significance to him. He testified 

that stopping at the wilderness boundary would not comport with his religious beliefs, 

and that his beliefs “really compel [him] to go further” (Def. Day 1 at 39). Moreover, 

areas deep in the wilderness are so dangerous for people crossing them in part because 

they are so remote; people are more likely to be rescued, or their remains discovered, in 

areas accessible by public road, and those people do not need his assistance. Doing these 

acts in the “area of greatest need” is a crucial component of the religious practice, and 

the evidence showed that that area is in the designated wilderness within the CPNWR. 

Thus, any alternative areas do not serve “the exact same religious function.” 

36.Dr. Warren could not avoid this forced choice by obtaining special permission for his 

practice from FWS. Dr. Warren and other members of NMD had sought permission from 

the Refuge Manager to drive on the administrative roads in the designated wilderness, 

and were unequivocally denied (Def. Day 2 at 18). Although he did not file a formal 

permit application, the official who unilaterally decides whether to approve or deny 

permission confirmed that he would not grant permission (Day 2 at 112). 

37.The federal government, through FWS, effectively denied Dr. Warren access to the “area 

of greatest need,” which is a necessary component of his religious practices of searching 

for human remains and placing water and other supplies. Dr. Warren confirmed that he 

had “to choose between doing what [his] spiritual beliefs entail or doing what the 

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regulations dictate” (Def. Day 2 at 13). This constitutes a substantial burden on his 

exercise of religion.

Advancing a Compelling Government Interest

38.Because Dr. Warren has established a substantial burden on the exercise of his sincerely 

held religious beliefs, the government must prove that burdening his religious exercise 

is the “least restrictive means of advancing a compelling interest.” O Centro, 546 U.S. at 

423 (citing 42 U.S.C. § 2000bb-1(b)). The first component of this test requires proof that 

burdening Dr. Warren’s exercise of religion “advanc[es] a compelling interest.” This 

requirement itself essentially has two sub-parts: the interest served must be compelling, 

and the enforcement of the laws in this manner against this particular individual must 

meaningfully advance that interest. 

39.An interest is only compelling if it is “of the highest order,” Lukumi Babalu Aye, 508 

U.S. at 546. Examples include prison security (Holt); guaranteeing cost-free 

contraceptive access (Hobby Lobby); preventing diversion of dangerous drugs (O 

Centro); and preparing citizens to participate in our democracy (Yoder). 

40.The government must also prove that its action advances the compelling interest. This 

inquiry is particularized to this application, rather than generalized to the existence of the 

regulations. It is not enough to show that a law advances a compelling interest “in very 

broad terms.” Hobby Lobby, 573 U.S. at 726-28. The government must show that 

“application of the challenged law ‘to the person’—the particular claimant whose sincere 

exercise of religion is being substantially burdened”—furthers the asserted interest. O 

Centro, 546 U.S. at 430-31 (quoting 42 U.S.C. § 2000bb-1(b)).

41.Another way of putting this is that the government must prove that the identified interest 

“would be seriously compromised” by allowing the defendant’s religious practice. Holt, 

135 S. Ct. at 864. This analysis requires “scrutiniz[ing] the asserted harm” not of 

eliminating the regulation, but rather “of granting specific exemptions to particular 

religious claimants.” Hobby Lobby, 573 U.S. at 726-27 (citation omitted); see also Holt, 

135 S. Ct. at 863-64 (asking whether “denying petitioner” his exception “actually 

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furthers the Department’s interest”). To satisfy these requirements, the government must 

show that its action prevents “harms” that “are real, not merely conjectural,” and it “will 

in fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. 

FCC, 512 U.S. 622, 664 (1994) (describing requirements for lower intermediate scrutiny 

standard in related First Amendment context); Holt, 135 S. Ct. at 865 (prison failed to 

prove allowing beard for religious reasons would cause “meaningful increase in security 

risk”). Theoretical harms are not enough; the government must identify actual “harms 

posed by the particular use at issue here,” and prove its compelling interest in preventing 

those real harms. O Centro, 546 U.S. at 432.

42.A “law cannot be regarded as protecting an interest of the highest order when it leaves 

appreciable damage to that supposedly vital interest unprohibited.” Lukumi Babalu Aye,

508 U.S. at 546. In Holt, for instance, the Supreme Court recognized that allowing a 

religious exception to the no-beards rule in a prison could not cause serious harm because 

the prison did find it feasible to allow medical exceptions. 135 S. Ct. at 865. Similarly, 

in O Centro, the Supreme Court recognized that the fact that the Controlled Substances 

Act “contains a provision authorizing the Attorney General to ‘waive the requirement for 

registration of certain manufacturers, distributors, or dispensers if he finds it consistent 

with the public health and safety’ . . . The fact that the Act itself contemplates that 

exempting certain people from its requirements would be ‘consistent with the public 

health and safety’” was strong evidence that exemptions were feasible. 546 U.S. at 433-

34. The statute’s existing exception for peyote “also fatally undermine[d]” the 

government’s contention that making an additional limited exception would damage its 

interests. Id. at 434. 

43.In O Centro, the Supreme Court held that the government may not speculate about other 

possible RFRA claims to justify denial. 546 U.S. at 435–36 (rejecting “slippery-slope” 

argument that “echoe[d] the classic rejoinder of bureaucrats throughout history: If I make 

an exception for you, I’ll have to make one for everybody, so no exceptions”); see also 

United States v. Christie, 825 F.3d 1048, 1060-61 (9th Cir. 2016) (rejecting as 

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“insufficient” a “slippery-slope concern that could be invoked in response to any RFRA 

claim.”).

44.The burden is on the government to identify and prove its compelling interest. It never 

clearly articulated precisely what goal it is pursuing through enforcing these regulations. 

While it presented testimony about the general principles it abides by in seeking to 

preserve wilderness character, it never explained what the goal or purpose of this 

preservation was. The Wilderness Act of 1964 explains that it seeks “to secure for the 

American people of present and future generations the benefits of an enduring resource 

of wilderness.” Thus, here, too, Congress appears to treat wilderness preservation as a 

good in and of itself. The government also presented testimony about the general purpose 

of the CPNWR, where the abandonment of property regulation applies both inside and 

outside the designated wilderness3: “to provide wildlife and forage resources, and in 

particular, for the desert bighorn sheep” (Day 2 at 174). Thus, the government appears 

to be asserting that it has compelling interests in (1) preserving wilderness character and 

(2) to provide resources for the desert bighorn sheep.

45.No precedent dictates whether these particular interests are “compelling,” but courts’ 

treatment of related claims provides some guidance. In United States v. Vasquez-Ramos, 

531 F.3d 987 (9th Cir. 2008), a defendant asked the Ninth Circuit to determine that after 

bald eagles were removed from the Endangered Species List, their protection was no 

longer compelling. The Court ruled that it was still compelling, but only specifically 

because that particular bird was the subject of a statute, the Bald and Golden Eagle 

Protection Act, premised not only on its scarcity but also on its status as our national 

symbol. Id. at 991. Similarly, in United States v. Adeyemo, 624 F.Supp.2d. 1080, 1089 

(N.D. Cal. 2008), the Court ruled the protection of a specific endangered leopard species 

was compelling based on Congress’s explicit direction in the Endangered Species Act 

 3 Not all of the supplies observed by Officer Valenzuela were inside the designated wilderness, and the government made no attempt to limit its prosecution to the items found in the wilderness. Accordingly, it must justify its enforcement of the abandonment of 

property regulation against Dr. Warren in the non-wilderness areas. 

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that made protection of those particular animals a compelling interest. See also United 

States v. Jim, 888 F.Supp. 1058 (D. Ore. 1995); United States v. Billie, 667 F.Supp. 1484 

(S.D. Fla. 1987). In United States v. Abeyta, 632 F.Supp.1301, 1307 (D. N.M. 1986), the 

Court explained that protecting golden eagles (which do not have special patriotic status) 

was not a compelling interest because “[t]he golden eagle is not an endangered species” 

and “[t]he uncontradicted testimony at trial established that some eagles could be taken 

without harmful impact on the remaining population.” Here, the identified interest in 

maintaining the CPNWR—the protection of desert bighorn sheep—is not compelling. 

Indeed, the refuge manager testified that he issues permits for people to hunt bighorn 

sheep (Day 2 at 130). The government presented no evidence that they were in any way 

threatened or endangered, and, as in Abeyta, the evidence actually showed that allowing 

some individuals to be taken was perfectly acceptable. Thus, protecting desert bighorn 

sheep is not a compelling government interest. The government has also failed to present 

any evidence or argument as to why this Court should find the preservation of wilderness 

character to be a compelling interest “of the highest order.” It is of course a laudable goal 

to maintain some wild lands in this country, but RFRA requires more: to overcome the 

freedom of religion, an interest must be truly paramount. The government has not 

demonstrated that this one is.

46.A number of exceptions exist to the National Wildlife Refuge System Administration 

Act (16 U.S.C. § 668dd – the statute giving rise to the regulations at issue here) and 

Wilderness Act as they apply to the CPNWR. Most strikingly, when Congress created 

the wilderness area within the CPNWR, it explicitly specified that the designation would 

not “preclud[e] or otherwise affect[] continued border operations by the Immigration and 

Naturalization Service, the Drug Enforcement Administration, or the United States 

Customs Service within such refuge.” Arizona Desert Wilderness Act of 1990, 104 Stat. 

4469, Title III(g). This exception allows law enforcement to drive throughout the

wilderness, including on the roads forbidden to Dr. Warren and even off roads altogether. 

In other words, Congress explicitly determined that the stringent protection of the 

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wilderness area, while important, could give way to other greater interests. The 

Wilderness Act, much like the Controlled Substances Act discussed in O Centro, on its 

face contemplates various exceptions that would be consistent with maintaining 

wilderness character—thus, exactly as in O Centro, allowing some exceptions is 

compatible with the government’s interests. See 16 U.S.C. § 1133(c) (allowing 

temporary roads, motor vehicle use, motorized equipment, motorboats, landing of 

aircraft, and installation of structures “as necessary to meet the minimum requirements 

for the administration of the area for the purpose of this Act”). In addition, 50 C.F.R. § 

35.5, the motor vehicle regulation, explicitly recognizes that certain things are more 

important than strict preservation of wilderness; it provides for exceptions not only for 

activities necessary to manage the refuge, but for “measures required in emergencies 

involving the health and safety of persons within the area.” Congress has also allowed

all of the federal laws protecting environmental concerns to be unilaterally set aside by 

the Homeland Security Secretary in his sole discretion “to ensure expeditious 

construction of the barriers and roads” built to deter border crossing. 8 U.S.C. § 1103(c). 

Recently, DHS exercised this authority to allow the construction of a new border wall in 

the designated wilderness area in the CPNWR. 84 Fed. Reg. 94, 21798 (May 15, 2019). 

The laws waived include the Wilderness Act, the National Wildlife Refuge System 

Administration Act (16 U.S.C. 668dd-668ee), and Section 301(a)-(f) of the Arizona 

Desert Wilderness Act—precisely the laws the government has refused to waive for Dr. 

Warren’s religious practice. Thus, the government has determined that it can make 

exceptions to these environmental laws; it has simply refused to do so to accommodate 

Dr. Warren’s religious practice. But Congress has directed that if the government can do 

so, it must accommodate the exercise of religion. If it can accommodate border 

enforcement, it can accommodate religious exercise.

47.Statutory exceptions aside, FWS allows various exceptions to the laws for its own and 

others’ activities. For instance, it has explicitly approved using large trucks to haul water 

deep into the wilderness for wildlife—and also, it says, for human beings, although the 

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water is considered non-potable (Day 3 at 42). It allows permanent man-made tanks to 

exist there to provide water to wildlife, even though the tanks themselves are not 

consistent with the wilderness character (Day 3 at 18-19). It has also allowed the 

installation of semi-permanent water stations in some areas of the CPNWR, as well as 

rescue beacons, semi-permanent structures that are certainly not part of the natural 

wilderness character—all because it apparently acknowledges that absolute faithfulness 

to wilderness quality is not essential in the face of other crucial needs. In addition, other 

users receive permission to drive on these roads, including archeologists (RT Day 1 at 

48; Day 2 at 107-108) and researchers (Day 2 at 109), and hunters are given access to 

private roads, although not in wilderness areas (Day 2 at 107). In addition, Pima County 

Sheriffs may drive on the administrative roads in the wilderness (Day 1 at 48). 

48.The government argues, essentially, that none of the exceptions it allows undermine its 

compelling interest claim because all of those uses are in some way, however attenuated, 

beneficial to the ultimate underlying interest in environmental conservation. This is not, 

and has never been, part of the RFRA analysis. Indeed, the broad waiver provision 

discussed in O Centro allowed exceptions explicitly for “the public health and safety,” 

which is also the broad purpose of the Controlled Substances Act itself. But this broad 

congruence of purpose did not eliminate the exception’s fatal effect on the compelling 

interest. Nor is the government’s claim that border law enforcement benefits the refuge 

credible; the evidence shows that the Border Patrol causes considerable damage to the 

refuge (Day 2 at 123), and the government presented no evidence that the impact caused 

by illegal activity has decreased as a result of enforcement activities, nor that any 

environmental benefit of such activities comes close to outweighing the damage they 

cause. In any event, the FWS refuge supervisor acknowledged that the removal of human 

remains could also have beneficial effects on wilderness character (Day 3 at 29). Thus, 

even if FWS could legally limit exceptions to only those that can be tied in some loose 

way to its interests, it still could not justify refusing this exception. Additionally, FWS 

officials agreed that a federal government policy led to the proliferation of migrants and 

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smuggling activity on the CPNWR (and the attendant need for law enforcement) to begin 

with (Day 3 at 37). Thus, in seeking to reduce traffic through the CPNWR, the 

government is not affirmatively protecting the refuge; it is seeking to mitigate the damage 

caused by its own policies. Notably, the text of RFRA refers very broadly to what 

“Government” may and may not do, see 42 U.S.C. § 2000bb-1, not to what any particular 

agency can do. 

49.The government presented no testimony about how denying Dr. Warren a religious 

accommodation would specifically advance its interests. Although it asserted vague 

concerns about trash (Day 3 at 21), the presence of manmade structures and objects (Day 

3 at 21-22), and fragmentation (the restriction of animal habitats) (Day 3 at 7), it failed 

to identify any actual, as opposed to theoretical, harms caused by abandonment of 

property or driving on restricted roads at all, let alone how allowing Dr. Warren’s 

particular limited activities themselves could even theoretically harm its interests. This 

is especially true for the motor vehicle use, which indisputably does not leave trash; the 

government never identified any harm that could be caused by one vehicle driving on 

pre-existing roads already regularly traveled by others. The regional refuge supervisor 

never testified that trash had any actual impact on wildlife—only that in theory it could 

(Day 3 at 26). She also confirmed that while placing man-made items, including canned 

food, could cause wildlife to either approach or avoid particular areas, she did not know 

whether it actually did (Day 3 at 27). Thus, all the evidence about harm was speculative. 

Moreover, none of it was tied to allowing Dr. Warren’s particular practice. The 

supervisor testified that illegal activities and the pervasive attendant law enforcement 

activities can have an impact on wilderness qualities (Day 3 at 7), but none of these 

impacts were linked in any way to Dr. Warren’s religious practice. Nor did the evidence 

show that the government’s identified interests have suffered. For one thing, the Sonoran 

Pronghorn population4 hit a low of approximately 20 individual around 2002, and today, 

there are between 200 and 300 individuals (Day 3 at 17-18); this recovery occurred even 

 4 The Sonoran Pronghorn is an endangered species that resides largely in the CPNWR.

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though Dr. Warren began and has continued his religious practice during this time period. 

Moreover, the evidence showed that he and his colleagues collect not only their own 

used supplies, but various trash they find. See Day 3 at 49 (supervisor acknowledging, 

“if they are removing jugs from the area, that would be beneficial. I just don’t know to 

what extent that’s done or what impact is still left on that landscape that they are not able 

to locate.”). And although driving trucks across undisturbed wilderness could perhaps 

impact the landscape, Dr. Warren and his group always stay on established roads that 

already regularly accommodate vehicles driven by FWS officers, Border Patrol agents, 

and others (Day 2 at 73-74). There was simply no evidence that allowing this would 

cause any harm to any identified interest.

50.This Court’s task is to “scrutinize the asserted harm of granting specific exemptions to 

particular religious claimants,” Hobby Lobby, 573 U.S. at 726-27 (citation omitted), and 

the government has not presented any such evidence. Accordingly, this Court finds that 

prosecuting Dr. Warren for these offenses does not advance a compelling government 

interest. 

Least restrictive means

51.Even if prosecuting Dr. Warren did advance a compelling interest, the government would 

have to prove that it is the “least restrictive means” of furthering that interest, 42 U.S.C. 

§ 2000bb-1(b)(2), that is, that the government “lacks other means of achieving its desired 

goal without imposing a substantial burden on the exercise of religion.” Hobby Lobby, 

573 U.S. at 728. The government’s power to use other means is not confined to what any 

particular agency can do unilaterally; rather, “both RFRA and its sister statute, RLUIPA, 

may in some circumstances require the Government to expend additional funds to 

accommodate citizens’ religious beliefs.” Hobby Lobby, 573 U.S. at 729-30. Moreover, 

the government “cannot meet its burden to prove least restrictive means unless it 

demonstrates that it has actually considered and rejected the efficacy of less restrictive 

measures before adopting the challenged practice.” Warsoldier v. Woodford, 418 F.3d 

989, 999 (9th Cir. 2005). Likewise, if the government cannot demonstrate that feasible 

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alternatives would not suffice to protect its interests, it cannot meet the least-restrictivemeans standard. Holt, 135 S. Ct. at 864 (declining to defer to prison officials’ security 

expertise when Department “offered no sound reason” that beard could not be searched 

for contraband as readily as hair or clothing).

52.Never having identified any actual harms caused by Dr. Warren’s religious practice, the 

government has also not addressed possible alternatives for addressing those 

hypothetical harms. Nonetheless, it is apparent that less restrictive means of addressing 

the government’s concerns exist, whether or not prosecuting Dr. Warren actually 

ameliorates any of them. To the extent the alleged harm is trash on the refuge, the 

government can simply invest greater resources in the removal of trash (although the 

evidence showed that NMD already removes significant amounts). The government need 

only expend some limited resources to hire a clean-up crew to periodically traverse the 

refuge collecting any empty bottles or cans that may have escaped collection. That might 

have some cost associated with it, but cost is encompassed in what Congress mandated 

when it passed RFRA. See Hobby Lobby, 573 U.S. at 729-30. It could also simply equip 

any agents who are already driving in the wilderness with trash bags and task them to 

remove trash while patrolling. And to the extent the alleged harm consists of too much 

driving in the wilderness, the government could reduce its own use of motor vehicles in 

the area by some small amount to offset Dr. Warren’s religious use, or it could limit 

others’ use (like archeologists and researchers) instead of Dr. Warren’s religious use. 

The government never made any attempt to show that these identified alternatives are 

not feasible. Accordingly, it cannot satisfy strict scrutiny.

53.Because this prosecution constitutes a substantial burden on Dr. Warren’s exercise of his 

sincerely held religious beliefs and the government cannot prove that refusing to allow 

his religious practice is the least restrictive means of advancing a compelling government 

interest, this Court finds him not guilty on both charges. 

D. NECESSITY

54.The necessity defense “justifies criminal acts taken to avert a greater harm, maximizing 

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social welfare by allowing a crime to be committed where the social benefits of the crime 

outweigh the social costs of failing to commit the crime. . . . Pursuant to the defense. . . 

a person lost in the woods could steal food from a cabin to survive.” United States v. 

Schoon, 971 F.2d 193, 196 (9th Cir. 1992). The Ninth Circuit has expressed these 

requirements as a four-part test: a defendant must prove “(1) that he was faced with a 

choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) 

that he reasonably anticipated a causal relation between his conduct and the harm to be 

avoided; and (4) that there were no other legal alternatives to violating the law.” United 

States v. Arellano-Rivera, 244 F.3d 1119, 1125-26 (9th Cir. 2001).

55.Dr. Warren’s decision to place supplies at these particular locations was based on 

reliable, current information about the locations of recent recoveries of human remains. 

Given the large numbers of remains found in the areas where he was leaving supplies, it 

was a reasonable inference that individuals would at some point in the near future be in 

mortal peril there. Because, even with the presence of rescue beacons and other lifesaving measures, frequent deaths were continuing to occur, and other actions that might 

eventually reduce deaths would not prevent the deaths occurring in the immediate future, 

Dr. Warren faced a choice between standing idly by while predictable deaths continued 

to occur, and violating the prohibitions against driving on the only roads that lead to the 

dangerous areas and leaving objects behind in the refuge.

56. The death of migrants in the Growler valley was imminent. It was June in the Arizona 

desert, and strong evidence showed that people were regularly traversing that area 

without sufficient water for survival. The evidence showed that some 40 sets of human 

remains had already been recovered in that small area in the previous 8 months; it was 

thus a well-supported inference that additional deaths would occur in the near future. 

57.Although legal avenues of reducing deaths may have existed, it was undisputed that 

deaths continued to occur despite the presence of rescue beacons on the refuge and 

permanent water stations and wildlife water sources. Thus, there were still a significant 

number of reasonably foreseen human deaths to prevent, for which no legal methods 

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were available in the timeframe when they were needed for these individual people. Even 

the placement of more beacons, which the refuge manager admitted was needed, took 

time, and in the interim, people were continuing to die. The proffered legal alternatives 

may help to prevent some future deaths, but they could not prevent the particular deaths 

that were likely to occur shortly after Dr. Warren’s actions without his interventions. The 

necessity defense applies even to the prevention of a single human death.

58.Dr. Warren clearly believed that his actions would prevent deaths, and the evidence, 

including testimony by the Pima County Medical Examiner, a Board Certified Forensic 

Pathologist, confirmed that this belief was reasonable. 

59.Because Dr. Warren proved that he faced a choice between allowing people to die in the 

Growler Valley and breaking the law, because those deaths were imminent, because no 

legal alternatives could prevent those particular deaths, and because he reasonably 

believed his actions would prevent those deaths, his actions, while in violation of the 

regulations, were justified by necessity. Accordingly, Dr. Warren is not guilty on both 

charges. 

Respectfully submitted this 24th day of May, 2019

By /s/ Amy P. Knight

Gregory J. Kuykendall

Amy P. Knight

531 S Convent Avenue

Tucson, AZ 85701

Attorneys for Defendant Scott Daniel Warren

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CERTIFICATE OF SERVICE

I certify that on May 24th, 2019, I electronically transmitted a PDF version of this 

document to the Clerk of Court using the CM/ECF System for filing and for transmittal of 

a Notice of Electronic Filing to the following CM/ECF registrants: 

Nathaniel J. Walters, Esq. (email: Nathaniel.walters@usdoj.gov) 

Anna R. Wright, Esq. (email: anna.wright@usdoj.gov) 

United States Attorney’s Office 

405 W. Congress, Suite 4800 

Tucson, AZ 85701

Case 4:17-mj-00341-RCC-JR Document 140 Filed 05/24/19 Page 25 of 25