Northern Arapaho Tribe Prevails against Fish & Wildlife Service/Eastern Shoshone Tribe over Eagle Permits in Accordance with Hobby Lobby

Here is the opinion in Northern Arapaho Tribe v. Ashe (D. Wyo.):

An excerpt:

While the foregoing discussion is mired in legal nuance, at the end of the day, the federal government burdened one federally-recognized Indian tribe’s free exercise of religion based on the religious objection of another federally-recognized Indian tribe. Whether the First Amendment prevents the federal government from imposing the burden of law on one federally-recognized Indian tribe’s free exercise of religion for the benefit of another is a question of first impression, but it is clear that the First Amendment forbids such conduct—”The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.” Church of the Lukumi Babalu Aye, 508 U.S. at 542. The Court finds that Defendants’ decision in its informal adjudication of Plaintiffs’ permit application violated the Free Exercise Clause of the First Amendment because the decision was not justified by a compelling governmental interest and was not narrowly tailored to advance the asserted interest.

The Court finds and that Defendants made an error of law when adjudicating Plaintiffs’ permit application and that Defendants’ error is capable of repetition, yet evading review. Therefore, this Court must set aside Defendants’ Permit Findings and Renewal Permit Findings, and remand to the U.S. Fish and Wildlife Service to reconsider those findings consistent with this Order. “When an administrative agency has made an error of law, the duty of the Court is to correct the error of law committed by that body, and, after doing so to remand the case to the [agency] so as to afford it the opportunity of examining the evidence and finding the facts as required by law.” Miami Tribe of Oklahoma v. United States, 656 F.3d 1129, 1138 (10th Cir. 2011).

Briefs:

79 NAT Motion for Summary J

85 Eastern Shoshone Supplement to Amicus Brief

87 FWS Motion for Summary J

89 NAT Opposition

90 NAT Reply

92 NAT Letter re Hobby Lobby

News coverage here.

Prior to Hobby Lobby, the court had not allowed the N. Arapaho Tribe to add an establishment clause claim, materials here.

A 2012 order on the merits — again, pre-Hobby Lobby — with materials is here.