Us v. Wilgus, 00-4015

UNITED STATES OF AMERICA, Plaintiff-Appellee v SAMUEL RAY WILGUS, Jr., Defendant-Appellant

No. 00-4015

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 8, 2001

Appeal from the United States District Court for the District of Utah

(D.C. No. 2:99-CR-00047W)

Joseph F. Orifici, Salt Lake City, Utah, for Defendant-Appellant.

Christopher B. Chaney, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before BALDOCK, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and EBEL, Circuit Judge.

EBEL, Circuit Judge.

This appeal asks whether the Bald and Golden Eagle Protection Act ("Act" or "BGEPA"), 16 U.S.C. 668 - 668d, violates the religion clauses of the First Amendment. The Act imposes criminal penalties on any person who knowingly "takes" or possesses bald or golden eagles, or any of their parts, including eagle feathers. See 16 U.S.C. 668(a). It allows, however, the Secretary of the Interior to promulgate regulations which authorize takings or possession of these eagles when such possession is compatible with eagle preservation and "for the religious purpose of Indian tribes." See 16 U.S.C. 668a. Regulations detailing this exception require that, for a person to legally possess eagle parts, he or she must (1) be a member of a federally recognized Indian tribe and (2) use the eagle parts for tribal religious ceremonies. See 50 C.F.R. 22.22.

In response to Wilgus's free exercise challenge, we hold that the Act is a neutral, generally applicable law. Thus, it falls within the safe-harbor created by Employment Division v. Smith, 494 U.S. 872 (1990). As to his Establishment Clause claim, we reject Wilgus's contention that the BGEPA's Indian exception creates a denominational or racial preference. Supreme Court precedent makes clear that this Indian exception results in a political classification, which requires the government merely to show a rational relationship between the Act and the federal government's unique obligation to preserve Native American culture. The Act easily survives rational basis review. As a result, we AFFIRM the district court's denial of Wilgus's motion to dismiss the indictment.

BACKGROUND

On June 5, 1998, Utah Highway Patrol Officer Gordon Mortenson stopped a speeding 1997 Mazda pick-up truck.¹ Inside the cab of the truck were three men: the driver, Kevin Mieswinkel; his adult passenger, Defendant-Appellant Samuel Ray Wilgus, Jr.; and Wilgus's teenage son. Officer Mortenson arrested Mieswinkel for driving on a suspended license. Incident to the arrest, Officer Mortenson searched the truck, including a wooden box which was in the open bed of the pick-up.² The box contained 137 feathers from bald and golden eagles. Wilgus admits he knowingly possessed the feathers.

Four days later, on June 9, 1998, Ed Liese, an investigator with the Utah Division of Wildlife Resources, called at Wilgus's home in Layton, Utah. There, Linda Wilgus, Appellant's wife, produced four more feathers from bald and golden eagles. Wilgus admits he knowingly possessed these feathers as well. The district court found that Wilgus "did not have a permit from the U.S. Fish & Wildlife Service authorizing possession of any of the eagle feathers from either incident."

Wilgus is not a member of any federally recognized Indian tribe, and he cannot establish that he has any Native American Indian ancestry.³ It is undisputed that Wilgus is a bona fide adherent of a Native American religion and that possession of eagle feathers are central to his beliefs and practices.

As a result of his knowing possession of the feathers, Wilgus was charged with possessing 141 bald and golden eagle feathers without a permit in violation of the Act. Wilgus filed a motion to dismiss on the ground that the Act violates the religion clauses of the First Amendment and the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb to 2000bb-4. The court denied the motion. It held that RFRA had been overruled by City of Boerne v. Flores, 521 U.S. 507, 519 (1997). The court further held that the BGEPA was a neutral, generally applicable law which fell within the safe-harbor created by Employment Division v. Smith, 494 U.S. 872 (1990). Finally, the court adopted the reasoning of Rupert v. U.S. Fish and Wildlife Serv., 957 F.2d 32, 33 (1992), which held that the BGEPA does not violate the Establishment Clause.

Wilgus entered a conditional guilty plea, permitting him to challenge the district court's denial of his motion to dismiss the indictment. The court sentenced him to one year of probation and one hundred hours of community service.

DISCUSSION

A. Jurisdiction and Standard of Review

The district court had original jurisdiction under 18 U.S.C. 3231. We exercise jurisdiction pursuant to 28 U.S.C. 1291.

We review de novo questions of constitutional law. See Andersen v. McCotter, 205 F.3d 1214, 1217 (10th Cir. 2000). Since the district court's factual findings are not appealed, we accept them as undisputed. See Hein v. TechAmerica Group, Inc., 17 F.3d 1278, 1279 (10th Cir. 1994).

The government argues that Wilgus lacks standing to challenging the permitting process. See Answer Brief at 6-7 (citing United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997)). We express no opinion as to the merits of this contention because it is irrelevant. Wilgus is not challenging the "operation of the underlying administrative scheme" but rather "the facial validity of the BGEPA and its regulations." Id. It is clear he has standing to challenge the constitutionality of the statute under which he was convicted.

B. Free Exercise

As noted above, at the district court Wilgus challenged the Act on the grounds that it violates the Free Exercise Clause and RFRA. On appeal, however, Wilgus raises only the free exercise claim. Since he does not raise RFRA on appeal, we do not address it. See Fed. R. App. P. 28(a) (requiring appellants to raise and argue the issues on which they seek review); State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (holding that failure to raise an issue in the opening brief waives the issue).

It might be contended, however, that RFRA applies in every free exercise case, even when it is not asserted on appeal. We begin by considering this threshold issue.

1. Whether RFRA Applies

Courts are split on the question of whether RFRA applies when a party does not raise it. The following cases indicate RFRA applies in all free exercise cases, even when not raised: Diaz v. Collins, 114 F.3d 69, 71 & n.7 (5th Cir. 1997); Jones-Bey v. Wright, 944 F. Supp. 723, 736 n.6 (N.D. Ind. 1996); Abdul-Akbar v. Dep't of Corr., 910 F. Supp. 986, 1007-08 (D. Del. 1995); Muslim v. Frame, 897 F. Supp. 215, 216-17 (E.D. Pa. 1995); Winters v. State of Iowa, 549 N.W. 2d 819, 820 (Iowa 1996); Geraci v. Eckankar, 526 N.W. 2d 391, 401 (Minn. Ct. App. 1995).⁴ In contrast, the following cases found RFRA did not apply because neither party had raised it: First Assembly of God of Naples, Florida, Inc. v. Collier County, Florida, 27 F.3d 526, 526 (11th Cir. 1994); Brown-El v. Harris, 26 F.3d 68, 69 (8th Cir. 1994); Shaheed v. Winston, 885 F. Supp. 861, 866 n.1 (E.D. Va. 1995); Levinson-Roth v. Parries, 872 F. Supp. 1439, 1451 & n.7 (D. Md. 1995).⁵

The text of RFRA is also ambiguous. The "Purposes" section of the statute reads:

The purposes of this chapter are to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S. 205 (1972), and to guarantee its application in all cases where free exercise of religion is substantially burdened; and to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

42 U.S.C. 2000bb(b)(1) & (2) (emphasis added). A substantive portion of RFRA, however, provides, "A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding." 42 U.S.C. 2000bb-1(c) (emphasis added). It is undisputed that the BGEPA substantially burdens Wilgus's exercise of his religious beliefs, but he does not assert RFRA as a defense on appeal.

In the face of this ambiguity, we decline to deviate from the rule that an appellant must raise the issues upon which he seeks this court's review, and, when doing so, he must identify the particular law or right under which a claim or defense arises. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Cir. 1995) ("A court of appeals is not required to manufacture an appellant's argument on appeal when [he] has failed in [his] burden to draw our attention to the error below.") (quotation marks omitted). To decide otherwise would be to disregard the Federal Rules of Appellate Procedure and would require this court to comb the record for meritorious claims or defenses not raised by the parties, fundamentally altering the role of the appellate court in our adversarial system.

While the existence of RFRA may be so well-known that some may believe it would only minimally burden courts to invoke it sua sponte whenever a party asserts a free exercise violation, to start down this road is to invite parties to argue that a prior court erred by not recasting their claim under some other, more favorable statute or case or by not raising sua sponte a meritorious issue abandoned by appellant. We believe such a road will consume precious time and transform courts into advocates. See Mitchell v. City of Moore, 218 F.3d 1190, 1199 (10th Cir. 2000).

Had Congress desired to direct courts to apply RFRA in all free exercise cases, regardless of whether the parties had raised it, it would have written RFRA unambiguously to achieve that purpose. Since it did not, and since Wilgus did not raise such a defense on appeal, we do not express any opinion on whether the BGEPA violates the RFRA standard. Instead, we limit our...