United States v. Vasquez-Ramos , 531 F.3d 987 ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50553
v.  D.C. No.
MARIO MANUEL VASQUEZ-RAMOS, CR-05-00581-SJO
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 06-50694
v. D.C. No.
LUIS MANUEL RODRIGUEZ-  CR-05-00579-SJO
MARTINEZ, also known as Luis ORDER AND
Manuel Hernandez-Rodriguez, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
March 5, 2008—Pasadena, California
Filed June 27, 2008
Before: Alfred T. Goodwin, Mary M. Schroeder, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
7587
7590 UNITED STATES v. VASQUEZ-RAMOS
COUNSEL
Robison D. Harley, Jr., Santa Ana, California, for appellant
Mario Manuel Vasquez-Ramos.
Marilyn E. Bednarski, Kay, McLane & Bednarski, LLP, Pasa-
dena, California, for appellant Luis Manuel Rodriguez-
Martinez.
Robert J. Lundman, Environment & Natural Resources Divi-
sion, U.S. Department of Justice, Washington, D.C., for the
appellee.
ORDER
The opinion published April 10, 2008, and appearing at 522
F.3d 914, is hereby withdrawn. Due to a printer’s error, the
published opinion does not reflect the opinion as filed by
panel. The opinion filed concurrently with this order reflects
the opinion actually filed by the panel with the clerk and
should be published by the printer as the panel’s opinion
forthwith.
Defendant-Appellant Mario Vasquez-Ramos’s Motion for
Joinder in Co-Appellant’s Petition for Rehearing and Sugges-
tion for Rehearing En Banc is GRANTED.
UNITED STATES v. VASQUEZ-RAMOS 7591
The panel has voted to deny the Defendants-Appellants’
joint petition for panel rehearing. Judges Schroeder and Tall-
man vote to deny the petition for rehearing en banc and Judge
Goodwin so recommends.
The full court has been advised of the petition for rehearing
en banc and no judge has requested a vote on whether to
rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc as to both cases is DENIED. No further petitions
for rehearing or rehearing en banc shall be entertained.
OPINION
PER CURIAM:
Mario Manuel Vasquez-Ramos and Luis Manuel
Rodriguez-Martinez (Defendants) were charged by informa-
tion for possessing feathers and talons of bald and golden
eagles and other migratory birds without a permit in violation
of the Bald and Golden Eagle Protection Act (BGEPA), 16
U.S.C. §§ 668—668d, and the Migratory Bird Treaty Act
(MBTA), 16 U.S.C. §§ 703—712. They moved to dismiss the
information claiming that prosecuting their possession of the
feathers and talons violated the Religious Freedom Restora-
tion Act (RFRA), 42 U.S.C. §§ 2000bb-1 to 2000bb-4. In
United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003),
under nearly identical facts, we held that there was no RFRA
violation. Antoine remains binding law in our circuit, and we
affirm the district court’s order denying Defendants’ motion
to dismiss.
I
A
BGEPA makes it illegal to possess bald or golden eagles or
parts of bald or golden eagles without a permit. 16 U.S.C.
7592 UNITED STATES v. VASQUEZ-RAMOS
§ 668. Congress and the United States Department of the Inte-
rior have crafted a permitting system and parts repository to
regulate the possession and distribution of eagles and parts of
eagles in a manner that “is compatible with the preservation
of” the bald and golden eagle. 16 U.S.C. § 668a; 50 C.F.R.
§ 22.22. Permits authorizing acquisition and possession of
whole or parts of eagles may be issued “for the religious pur-
poses of Indian tribes.” 16 U.S.C. § 668a. However, only
members of federally-recognized Indian tribes may apply for
and receive permits. 50 C.F.R. § 22.22. Unless received
through inheritance or gift, see 50 C.F.R. § 22.22(a)(1),
permit-eligible tribal members may obtain eagles and parts of
eagles only through the National Eagle Repository in Colo-
rado, see 16 U.S.C. § 668(a); U.S. Fish & Wildlife Service,
Questions and Answers About the National Eagle Repository,
http://www.fws.gov/mountain-prairie/law/eagle/ (last visited
Apr. 3, 2008).
The Repository is the main collection point for salvaged
bald and golden eagle carcasses, parts, and feathers. Requests
for eagle carcasses or parts are received by the Repository and
are generally filled on a first-come, first-served basis. The
time it takes for a request to be filled varies between three and
a half years for a whole bird and ninety days for twenty
lower-quality feathers. Although there has been an increase in
the number of eagle carcasses being recovered in the wild and
sent to the Repository, the number of requests has also
increased, extending the wait.
The Repository and permitting systems operate in recogni-
tion of the fact that demand exceeds supply and that wait
times are excessive. Supply and demand have also given rise
to black market trading in illegally taken eagles or parts of
eagles. See S. Rep. No. 71-180, at 2 (1930) (noting the “con-
siderable traffic in eagle quills and plumage” and the corre-
sponding need to criminalize not only killing and capture of
eagles, but also possession, sale, and transport of eagles and
their feathers); United States v. Hugs, 109 F.3d 1375, 1377
UNITED STATES v. VASQUEZ-RAMOS 7593
(9th Cir. 1997) (per curiam) (where the defendants claimed
that they shot bald and golden eagles because of the “diffi-
culty of obtaining eagles or eagle parts administratively”).
The MBTA also makes it illegal to possess any migratory
birds, including bald and golden eagles. 16 U.S.C. § 703. Per-
mits may be issued for falconry, propagation, scientific col-
lection, rehabilitation, depredation, and taxidermy, among
other purposes. 16 U.S.C. § 704; 50 C.F.R. §§ 21.21—.31.
There is no specific exemption for Native American religious
use, but “the United States has adopted a policy under which
members of federally-recognized Indian tribes may possess
migratory bird parts, while non-members may not and may be
prosecuted for such possession.” See United States v. Eagle-
boy, 200 F.3d 1137, 1138 (8th Cir. 1999).
B
In 2002, law enforcement officers acting in conjunction
with the United States Fish and Wildlife Service, which was
investigating the killing of bald eagles in captivity at the Santa
Barbara Zoo, executed search warrants and found parts and
feathers of eagles and other migratory birds in Defendants’
residences. Defendants claim to have received the feathers
during Native American religious ceremonies and to have
used them for religious worship. Defendants did not have and
could not obtain permits to possess the parts and feathers
because they are not members of federally-recognized Indian
tribes.
The United States filed a two-count information against
each Defendant. Count One charged Defendants with know-
ingly possessing feathers and talons of bald and golden eagles
without a permit in violation of BGEPA. Count Two charged
Defendants with wilfully possessing feathers and talons of
bald and golden eagles and red-tailed hawks without a permit
in violation of MBTA.
7594 UNITED STATES v. VASQUEZ-RAMOS
Defendants filed a joint motion to dismiss the information,
claiming that their prosecution impermissibly burdened their
religious practice under RFRA. The government responded
that the burden on Defendants’ religious practice was the least
restrictive means of advancing the government’s compelling
interest in protecting eagles. The district court agreed. It
found the result to be controlled by our holding in United
States v. Antoine and denied Defendants’ motion to dismiss.
Defendants entered conditional guilty pleas and filed this
timely appeal.
II
We review de novo a district court’s denial of a motion to
dismiss an information based on the interpretation of a federal
statute. See United States v. Gorman, 314 F.3d 1105, 1110
(9th Cir. 2002); United States v. Sandia, 188 F.3d 1215, 1217
(10th Cir. 1999) (“The district court’s decision to deny the
motion to dismiss based on defendant’s religious rights under
RFRA is a question of law that we review de novo.”).
Whether application of a federal law violates RFRA is a ques-
tion of statutory construction for the court, not a question of
fact. See Hugs, 109 F.3d at 1379.
III
[1] Under RFRA the government cannot “substantially bur-
den a person’s exercise of religion even if the burden results
from a rule of general applicability” unless it demonstrates
that “the burden to the person . . . (1) is in furtherance of a
compelling governmental interest; and (2) is the least restric-
tive means of furthering that compelling governmental inter-
est.” 42 U.S.C. § 2000bb-1(a)-(b). The district court found,
and the government concedes, that Defendants’ sincere reli-
gious beliefs are substantially burdened by BGEPA and
MBTA’s permit requirements. The government must demon-
strate that criminalizing Defendants’ possession of eagle parts
and feathers is the least restrictive means of achieving a com-
UNITED STATES v. VASQUEZ-RAMOS 7595
pelling interest. See Gonzales v. O Centro Espirita Benefi-
cente Uniao do Vegetal, 546 U.S. 418, 424 (2006).
[2] We faced the same issue in United States v. Antoine,
318 F.3d at 920. There, the defendant was charged with vio-
lating BGEPA after he brought feathers and eagle parts from
Canada into the United States and then swapped them for
money and other goods as part of the native trading custom
of “potlatch.” Id. The defendant moved to dismiss his prose-
cution, claiming that he was exempt from BGEPA under
RFRA. Id. We rejected his claim, holding that “[t]he govern-
ment has a compelling interest in eagle protection that justi-
fies limiting supply to eagles that pass through the repository,
even though religious demand exceeds supply as a result. Any
allocation of the ensuing religious burdens is least restrictive
because reconfiguration would necessarily restrict someone’s
free exercise.” Id. at 924.
We are bound by circuit precedent unless there has been a
substantial change in relevant circumstances, see id. at 922, or
a subsequent en banc or Supreme Court decision that is
clearly irreconcilable with our prior holding, see Miller v.
Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Neither
circumstance is present here.
A
[3] In July 2007, the Department of the Interior removed
the bald eagle from the Endangered Species List. See Remov-
ing the Bald Eagle from the List of Endangered and Threat-
ened Wildlife, 72 Fed. Reg. 37,346 (July 9, 2007). Defendants
urge us to conclude that given the current census estimates of
pairs of nesting eagles in the continental United States there
has been sufficient recovery of eagle populations such that the
government’s interest in eagle protection is no longer compel-
ling. But Congress passed BGEPA recognizing that “the bald
eagle is [not] a mere bird of biological interest but a symbol
of the American ideals of freedom.” Public Laws June 8,
7596 UNITED STATES v. VASQUEZ-RAMOS
1940, ch. 278, pmbl., 54 Stat. 250 (1940). As the Tenth Cir-
cuit has recognized, “The bald eagle would remain our
national symbol whether there were 100 eagles or 100,000
eagles. The government’s interest in preserving the species
remains compelling in either situation.” United States v.
Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc).
[4] When the Department of the Interior issued the final
rule removing the bald eagle from the list of endangered or
threatened species, it repeatedly emphasized the continuing
protection afforded by BGEPA and MBTA to reduce the
threat to bald eagles and “prevent the likelihood of endanger-
ment for the bald eagle in the lower 48 States.” 72 Fed. Reg.
37,346; 37,366; 37,372. We conclude, despite the fact that the
bald eagle is no longer considered endangered or threatened,1
the United States continues to have a compelling interest in
protecting eagles by enforcing BGEPA and MBTA. See
Antoine, 318 F.3d at 924.
B
Defendants also argue that the Supreme Court’s decision in
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
“constitutes a significant shift in the legal terrain surrounding
the appropriate application of . . . RFRA,” which undermines
our holding in Antoine. We disagree.
O Centro Espírita Beneficente União do Vegetal is a 130-
member religious group with its roots in the Amazon rainfor-
est that drinks a sacramental tea, hoasca, containing a halluci-
nogen regulated under the Controlled Substances Act. O
1
When we decided Antoine the Department of the Interior had proposed
removing the bald eagle from the list of threatened species, but had not
then finalized the delisting proposal. See 318 F.3d at 921. We suggested
that a future final rule might “transform a compelling interest into a less
than compelling one, or render a well-tailored statute misproportioned.”
Id. Our review of the record satisfies us, however, that such “transforma-
tion” has not occurred.
UNITED STATES v. VASQUEZ-RAMOS 7597
Centro Espirita, 546 U.S. at 425. When the government
threatened prosecution, the group filed suit seeking declara-
tory and injunctive relief, arguing that applying the Controlled
Substances Act to its use of hoasca violated RFRA. Id. at
425-26. The government “conceded that the challenged appli-
cation of the Controlled Substances Act would substantially
burden a sincere exercise of religion by the [group],” but
claimed that this burden did not violate RFRA. Id. at 426.
[5] The Supreme Court rejected the government’s primary
contention on appeal—“that [the government] has a compel-
ling interest in the uniform application of the Controlled Sub-
stances Act, such that no exception to the ban on the use of
the hallucinogen can be made to accommodate the sect’s sin-
cere religious practice.” Id. at 423. The Court held that
“RFRA requires the Government to demonstrate that the com-
pelling interest test is satisfied through application of the chal-
lenged law . . . [to the] particular claimant whose sincere
exercise of religion is being substantially burdened.” Id. at
430-31. The Court explained that RFRA requires courts to
“look[ ] beyond broadly formulated interests justifying the
general applicability of government mandates and scrutinize[
] the asserted harm of granting specific exemptions to particu-
lar religious claimants.” Id. at 431.
[6] We agree with the district court that O Centro Espirita
and Antoine are not clearly irreconcilable. See Miller, 335
F.3d at 900 (holding that circuit precedent is binding unless
“the relevant court of last resort [has] undercut the [prior
cases’s] theory or reasoning”). First, in Antoine we considered
whether application of BGEPA to the particular defendant, a
member of a non-federally-recognized tribe, violated RFRA
and thus engaged in the type of “focused inquiry” required by
O Centro Espirita. See Antoine, 318 F.3d at 922-23.
[7] Additionally, O Centro Espirita dealt with the pursuit
of a secular interest, drug prohibition, in a manner that bur-
dened religion; granting an exemption to the Controlled Sub-
7598 UNITED STATES v. VASQUEZ-RAMOS
stances Act for the 130-member group did not have any effect
on other people’s religion. See 546 U.S. at 432-33. But we
recognized in Antoine, because there is a fixed supply of
eagles that exceeds demand from religious adherents, “the
burden on religion is inescapable.” 318 F.3d at 923. Granting
an exemption for Defendants would alleviate the burden on
Defendants’ religion but would place additional burdens on
members of federally-recognized tribes in the exercise of their
religious practices. Nothing in O Centro Espirita undercuts
the ruling in Antoine that this redistribution of burdens does
not raise a valid RFRA claim. See id. Congress and the
Department of the Interior have chosen a means of allocating
scarce eagle parts that is “least restrictive” while still protect-
ing our important national symbol.
C
[8] Finally, Defendants contend that Antoine was decided
on the incorrect premise that the demand for eagle parts
exceeds a fixed supply. They argue that the government could
remedy the problem of a demand that outstrips supply by
increased diligence in salvage and recovery of eagle car-
casses. Even if this were true, RFRA does not require the gov-
ernment to make the practice of religion easier. The burden on
religion prohibited by RFRA, like the First Amendment’s pro-
hibition on limiting free exercise, “is written in terms of what
the government cannot do to an individual, not in terms of
what the individual can exact from the government.” See
Sherbert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J con-
curring). Because the government is not obligated to increase
the supply of available carcasses, Defendants cannot be heard
to complain that their rights under RFRA are violated by the
government’s refusal to expand its collection and distribution
practices.
V
[9] In Antoine we held that individuals like Defendants who
are not members of federally-recognized tribes did not have
UNITED STATES v. VASQUEZ-RAMOS 7599
valid claims that their prosecutions under BGEPA violate
RFRA. 318 F.3d at 924. Neither removal of bald eagles from
the Endangered or Threatened Species List, the Supreme
Court’s decision in O Centro Espirita, nor the government’s
eagle recovery methods undermine this holding. The district
court correctly denied Defendants’ motion to dismiss the
information in reliance on the continued viability of Antoine.
AFFIRMED.