In order to state a claim under RFRA, Yahweh Ben Yahweh must first show that his parole conditions substantially burden the exercise of his sincerely held religious beliefs; if he does so, the Parole Commission must then demonstrate that (1) the parole conditions were imposed in furtherance of a compelling government interest, and (2) the parole conditions are the least restrictive means of furthering that compelling government interest. See 42 U.S.C. § 2000bb; see also Gibson v. Babbitt, 223 F.3d 1256, 1248 (11th Cir. 2000); Fawaad v. Jones, 81 F.3d 1084, 1086-87 (11th Cir. 1996) ("RFRA now would require us to apply strict scrutiny to the prison regulation."); Gunning v. Runyon, 3 F. Supp.2d 1423, 1433 (S.D.Fla. 1998). However, in applying this heightened test, the Court must, even under RFRA, take into consideration the unique environment in which the burden occurs.
See Wilgus, 638 F.3d at 1285 (“[T]he interest found compelling arises from the federal government's obligations, springing from history and from the text of the Constitution, to federally-recognized Indian tribes.”); Gibson v. Babbitt, 223 F.3d 1256, 1258 (11th Cir.2000) (same). Cf. United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir.2002) (en banc) (finding a compelling interest in “protecting Indian cultures from extinction”).
Circuits have split over the exclusion of nonmember Indians from the permit program. In Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000) (per curiam), the Eleventh Circuit determined that restricting permits to members of federally recognized tribes was the least restrictive means of pursuing a compelling interest in restoring Indian treaty rights. Id. at 1258.
Moreover, most other courts that have addressed this issue have agreed that the preservation of eagle species represents a compelling interest. United States v. Oliver, 255 F.3d 588, 589 (8th Cir. 2001); United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997) (per curiam); Gibson v. Babbitt, 72 F.Supp.2d 1356, 1360 (S.D.Fla. 1999), aff'd, 223 F.3d 1256 (11th Cir. 2000). The prohibition on hunting golden eagles is intrinsically related to the prohibition on hunting bald eagles.
Moreover, the government's opposition brief [Doc. No. 40] fails to provide any additional evidence or argument to convince the Court otherwise. In its brief, the United States primarily argues that it took its position in the Saenz matter based on previous challenges and/or analogous challenges decided by other Courts. The first case cited by the government, Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000), was decided after Saenz brought his motion to recover the eagle feathers and after Judge Mechem issued his ruling but before the Tenth Circuit affirmed Judge Mechem. Thus, the government could not have relied on this case prior to its appeal of Saenz since Gibson had not been decided.
We would also be remiss if we failed to note that, in upholding the Eagle Act provisions against a RFRA challenge by non-Native American practitioners of Native American religion, we join the two other circuit courts to have considered the question. See United States v. Antoine, 318 F.3d 919, 924 (9th Cir. 2003); Gibson v. Babbitt, 223 F.3d 1256, 1258 (11th Cir. 2000) (per curiam). As a final coda in light of the Ninth and Eleventh Circuit cases, we observe that our decision today sidesteps a serious potential enforcement problem.
Johnson v. Meadows, 418 F.3d 1152, 1157 (11th Cir. 2005) (inmate who files an untimely grievance or simply spurns the administrative process until it is no longer available fails to satisfy the exhaustion requirement of the PLRA); Higginbottom v. Carter, 223 F.3d 1256, 1261 (11th Cir. 2000) (inmate's belief that administrative procedures are futile or needless does not excuse the exhaustion requirement). “The only facts pertinent to determining whether a prisoner has satisfied the PLRA's exhaustion requirement are those that existed when he filed his original complaint.
Defendant did not testify he believed the permit requirement would require undue physical effort on his part, or require him to endure any delay in performing rites necessary to the free exercise of his religion. The testimony indicated the permit requirement places only a subjective emotional burden on Defendant. Compare Hugs, 109 F.3d at 1378 ("We do not question that the BGEPA imposed a substantial burden on the practice of such religions by restricting the ability of adherents to obtain and possess eagles and eagle parts."); Gibson v. Babbit, 223 F.3d 1256, 1258 (11th Cir. 2001); Hardman, 297 F.3d at 1126-27 ("Any scheme that limits [legitimate practitioners of American Indian religions] access to eagle feathers therefore must be seen as having a substantial effect on the exercise of religious belief.");United States v. Gonzales, 957 F. Supp. 1225, 1228 (D.N.M. 1997) (holding that regulations requiring the defendant "to state on an application the name of the tribal religious ceremony for which he seeks an eagle and requiring him to obtain certification from a religious elder to the effect that he is authorized to participate in that ceremony, constitute a substantial burden on his exercise of his religion.