in the united states court of appeals … · attorneys, civil division. appellate staff, ......

No. 14-15143

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________

OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.; MICHAEL REX "RAGING BEAR" MOONEY,

Plaintiffs-Appellants,

v.

ERIC H. HOLDER, JR., as U.S. Attorney General;

MICHELE LEONHART, as Acting Administrator of the U.S. Drug Enforcement Administration;

EDWARD H. KUBO, JR., as U.S. Attorney for the District of Hawaii,

Defendants-Appellees. ____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII ____________________

BRIEF FOR APPELLEES

STUART F. DELERY Assistant Attorney General FLORENCE NAKAKUNI United States Attorney MARK STERN (202) 514-5089 s/LOWELL V. STURGILL JR. (202) 514-3427 Attorneys, Civil Division Appellate Staff, Room 7241 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

Case: 14-15143 07/18/2014 ID: 9173921 DktEntry: 20-1 Page: 1 of 54

TABLE OF CONTENTS

STATEMENT OF JURISDICTION .......................................................................... 1

STATEMENT OF THE ISSUES ............................................................................... 2

INTRODUCTION ...................................................................................................... 2

STATUTORY BACKGROUND ............................................................................... 3

STATEMENT OF THE CASE .................................................................................. 4

A. Complaint and Motions to Dismiss ............................................................ 4

B. Proceedings on Remand ............................................................................. 7

SUMMARY OF ARGUMENT ................................................................................. 9

STATEMENT OF THE STANDARD OF REVIEW .............................................12

ARGUMENT ...........................................................................................................13

I. The District Court Correctly Held That No Reasonable Fact Finder Could Conclude On This Record That Plaintiffs’ Marijuana Use Constitutes The Exercise Of Religion .............................13

A. Plaintiffs Failed to Satisfy their Burden of Producing Evidence Upon Which a Reasonable Fact Finder Could Conclude that Their Marijuana Use is a Religious Practice Under RFRA .........................13

B. Plaintiffs’ Arguments on Appeal Also Fail to Support Their Claim That Their Marijuana Use Is Religious Activity Under RFRA ............................................................................................................18

C. Plaintiffs’ RFRA Claim Also Fails Because the Record Would Not Support a Finding that the Government Has Imposed a “Substantial Burden” on Plaintiffs’ Alleged Exercise of Religion ..............24

II. Defendants Also Are Entitled To Summary Judgment Because Applying the Controlled Substances Act To Plaintiffs’ Marijuana Use Is The Least Restrictive Means To Accomplish Compelling Government Interests ............................................................25

i


A. Exempting Plaintiffs’ Marijuana Use from the CSA Would Create Unacceptable Risks of Diversion of Marijuana to the General Public ..............................................................................................26

B. Applying the CSA to Plaintiffs’ Marijuana Use is Consistent with the Supreme Court’s Decision in O Centro and is Otherwise Lawful Under RFRA ....................................................................................29

CONCLUSION ........................................................................................................31

STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

ADDENDA

ii


TABLE OF AUTHORITIES

Cases:

Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 1996) ........... 10, 13, 14, 18, 22

County of Allegheny v. ACLU, 492 U.S. 573 (1989) .............................................22

Davis v. Beason, 133 U.S. 333 (1890) .....................................................................21

Gonzalez v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006) ..........................................................................................................29

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................12

Multi-Denominational Ministry of Cannabis & Rastafari, Inc. v. Holder, 365 F. App’x 817 (9th Cir. 2010) .......................................................26

Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (9th Cir. 2008) ...................14

Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012) ...................................................................................................... 7

Olsen v. DEA, 878 F.2d 1458 (D.C. Cir. 1989).....................................................30

Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517 (9th Cir. 1994) ....................14

Petoliam Nasional Berhad v. GoDaddy.com, Inc., 737 F.3d 546 (9th Cir. 2013) ..........................................................................................................25

PLANS, Inc. v. Sacramento City Unified Sch. Dist., 2012 WL 2045967 (9th Cir. Jun. 7, 2012) ........................................................................................14

Range Road Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148 (9th Cir. 2012) ....................................................................................................12

Thomas v. Review Board, 450 U.S. 707 (1981) ......................................................19

iii


United States v. Anekwu, 695 F.3d 967 (9th Cir. 2012) ........................................25

United States v. Lafley, 656 F.3d 936 (9th Cir. 2011) .............................. 26, 29, 30

United States v. Lepp, 446 F. App’x 44 (9th Cir. 2011) .......................................26

United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996) ..................... 13, 14, 18, 22

United States v. Zimmerman, 514 F.3d 851 (9th Cir. 2007) ............... 10, 13, 15, 18

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...............................................................13

Constitution:

United States Constitution

First Amendment ...........................................................................................5, 14 Free Exercise Clause .............................................................................. 1, 2, 5, 8 Statutes:

American Indian Religious Freedom Act:

42 U.S.C. 1996 (2006) ........................................................................................5 42 U.S.C. 1996a(b)(1) .......................................................................................20 42 U.S.C. 1996a(c)(3) .......................................................................................20 Controlled Substances Act (“CSA”):

21 U.S.C. 801-971 ............................................................................................... 3 21 U.S.C. 801(2) ................................................................................................. 4 21 U.S.C. 812(a) ................................................................................................. 4 21 U.S.C. 812(c) .................................................................................................. 4 21 U.S.C. 841(a)(1) ............................................................................................. 3 21 U.S.C. 844(a) ................................................................................................. 4 Religious Freedom Restoration Act (“RFRA”):

iv


42 U.S.C. 2000bb ...........................................................................................1, 3 42 U.S.C. 2000bb-4 ............................................................................................ 3 42 U.S.C. 2000bb-1(a)(b) .............................................................................3, 13 42 U.S.C. 2000bb-1(c) ........................................................................................ 3 42 U.S.C. 2000bb-3(a)……………………………………………...................3 Religious Land Use and Institutionalized Persons Act

(“RLUIPA”): 42 U.S.C. 2000cc ............................................................................................. 5-6 28 U.S.C. 1291 ......................................................................................................... 2 28 U.S.C. 1331 ......................................................................................................... 1 Regulations: 21 C.F.R. 1307.31 ..................................................................................................19

Rules:

Fed. R. Civ. P. 56(a) ...............................................................................................12 Fed. R. Civ. P. 56(c) .............................................................................................12

v


IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

____________________

No. 14-15143 ____________________

OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC.;

MICHAEL REX "RAGING BEAR" MOONEY,

Plaintiffs-Appellants,

v.

ERIC H. HOLDER, JR., as U.S. Attorney General; MICHELE LEONHART, as Acting Administrator of the

U.S. Drug Enforcement Administration; EDWARD H. KUBO, JR., as U.S. Attorney for the District of Hawaii,

Defendants-Appellees.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

____________________

BRIEF FOR APPELLEES ____________________

STATEMENT OF JURISDICTION

The Complaint invoked the district court’s jurisdiction pursuant to 28

U.S.C. 1331, asserting claims under the Religious Freedom Restoration Act,

42 U.S.C. 2000bb (“RFRA”), and the Free Exercise Clause of the United

States Constitution, among other statutes and authorities.


On January 16, 2014, the district court entered a final judgment in

favor of defendants. See Excerpts of Record (“ER”) 3. That order resolved

all of plaintiffs’ claims against all the parties in this case, and is a final order

for purposes of appeal. Plaintiffs filed a notice of appeal on January 24,

2014. See ER 1. This Court has jurisdiction pursuant to 28 U.S.C. 1291.

STATEMENT OF THE ISSUES

1. Whether plaintiffs’ demand for an exemption from the

Controlled Substances Act fails because a reasonable fact finder could not

conclude on this record that their marijuana use is an exercise of religion or

that the government has imposed a substantial burden on that asserted

exercise of religion.

2. Whether the government is independently entitled to summary

judgment because applying the Controlled Substances Act to plaintiffs’ use

of marijuana is the least restrictive means of accomplishing compelling

government interests.

INTRODUCTION

Okleveuha Native American Church of Hawaii, Inc. and its founder,

Michael Rex “Raging Bear” Mooney, filed this suit to seek a religious

exemption from the Controlled Substances Act pursuant to RFRA and the

Free Exercise Clause, et al., for their use of marijuana.

2


The district court granted summary judgment for the government,

holding that a reasonable fact finder could not conclude on this record that

plaintiffs’ marijuana use constitutes the exercise of religion or that the

government has substantially burdened that alleged exercise of religion.

Plaintiffs appeal that ruling.

STATUTORY BACKGROUND

The Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. 2000bb

to 2000bb-4, provides that the Federal Government “shall not substantially

burden a person’s exercise of religion” unless “it demonstrates that

application of the burden to the person . . . is in furtherance of a compelling

governmental interest; and . . . is the least restrictive means of furthering that

compelling governmental interest.” Id. § 2000bb-1(a)(b). RFRA applies to

“all Federal law, and the implementation of that law,” id. § 2000bb-3(a), and

it authorizes lawsuits by persons whose religious exercise has been burdened

in violation of the statute, id. § 2000bb-1(c).

The Controlled Substances Act (“CSA”), 21 U.S.C. 801-971, provides

a comprehensive federal scheme to regulate controlled substances. The CSA

makes it unlawful to “manufacture, distribute, or dispense, or possess with

intent to manufacture, distribute, or dispense, a controlled substance,” except

as authorized by the Act. Id. § 841(a)(1). The CSA similarly criminalizes

3


possession of any controlled substance except as authorized by the Act. Id.

§ 844(a). Congress enacted the Controlled Substances Act based on a

finding that “[t]he illegal importation, manufacture, distribution, and

possession and improper use of controlled substances have a substantial and

detrimental effect on the health and general welfare of the American

people.” Id. § 801(2). The CSA establishes five “schedules” of controlled

substances, and places marijuana under Schedule I. See id. § 812(a), (c)

sched. I(c)(10).

STATEMENT OF THE CASE

A. Complaint and Motions to Dismiss

1. In July 2009, plaintiffs Mooney and the Oklevueha Native

American Church of Hawaii, Inc. (“Oklevueha Hawaii”)1 filed this action in

the District Court for the District of Hawaii. The complaint alleges that

Oklevueha Hawaii is a Hawaii nonprofit corporation whose members

consume cannabis as “a sacrament/eucharist in their religious ceremonies.”

Complaint, ¶ 1 (“SER” 2). Mooney, according to the complaint, is

Oklevueha Hawaii’s Founder, President and Medicine Custodian.” Id. ¶ 2

(SER 3) (emphasis in original).

1 Plaintiffs assert that Oklevueha Hawaii has officially changed its name to the “Native American Church of Hawaii, Inc.” Appellants’ Brief at 1.

4


The complaint names the Attorney General of the United States (Eric

H. Holder, Jr.); the Administrator of the United States Drug Enforcement

Administration (Michele Leonhart); and the U.S. Attorney for the District of

Hawaii (Edward H. Kubo, Jr.), as defendants in their official capacities.2

Complaint, at ¶¶ 3-5 (SER 3).

The complaint alleges that Oklevueha Hawaii’s members receive

communion through cannabis in religious ceremonies and daily worship.

Complaint ¶ 30 (SER 7). According to the complaint, Oklevueha Hawaii’s

members “rightfully and justifiably fear for their ability to continue to

cultivate, consume, possess and distribute cannabis,” and believe that the

threat that they and Mr. Mooney will be criminally prosecuted “is

exceedingly real.” Id. ¶¶ 32-33 (SER 8). The complaint asserts that

defendants have violated plaintiffs’ rights under the Religious Freedom

Restoration Act (“RFRA”); the American Indian Religious Freedom Act, 42

U.S.C. 1996 (2006); and the Equal Protection Clause and First Amendment

to the U.S. Constitution. See id. ¶¶ 34-43 (SER 8-10).3

2 Florence Nakakuni has been substituted for Edward H. Kubo as a defendant in her official capacity as the current U.S. Attorney for the District of Hawaii. On December 22, 2010, Michele Leonhart was confirmed by the Senate as the Administrator of the U.S. Drug Enforcement Administration. 3 The complaint and plaintiffs’ opening appeal brief also refer at points to the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42

5


The complaint seeks a declaratory judgment recognizing plaintiffs’

“[c]onstitutional and statutory rights to consume cannabis for their religious

and even their therapeutic needs,” id. ¶ 48 (SER 11), and preliminary and

permanent injunctions barring defendants “from arresting or prosecuting

[p]laintiffs, seizing their cannabis, forfeiting their property, or seeking

civil or administrative sanctions against them” for (1) possessing

cannabis for individual religious or therapeutic use, (2) obtaining cannabis

from other churches or from any other source permitted by state law, or (3)

cultivating and distributing cannabis to any person or entity in a manner

consistent with state law. See id. at 12-13 (SER 12-13).

2. Plaintiffs later filed an amended complaint, adding two new factual

allegations: that Mooney uses cannabis as a sacrament daily, and that

Oklevueha Hawaii uses cannabis in its “‘sweats,’ which occur

approximately twice a month during the new moon and the full moon.”

Amend. Compl., ¶ 37 (SER 23). In addition to the injunctive relief sought in

the original complaint, the amended complaint requests “the immediate

return of the cannabis that the Defendants have stolen/seized from Plaintiffs,

or its monetary value . . ..” Id. at 18 (SER 32).

U.S.C. 2000cc. That statute does not provide a cause of action against the United States, however, and plaintiffs do not seek any relief under RLUIPA.

6


The district court dismissed the amended complaint on ripeness

grounds insofar as it requested an injunction and declaratory relief

precluding the government from arresting or prosecuting plaintiffs or

seizing cannabis from them. See June 22, 2010 Order at 11 (SER 44). The

court subsequently dismissed the claims for the return of plaintiffs’ cannabis

on jurisdictional grounds. See October 26, 2010 Order at 4-8 (SER 60-64).

3. Mooney and Oklevueha Hawaii appealed the district court’s June

22, 2010 and October 26, 2010 orders. This Court affirmed the dismissal of

plaintiffs’ claims for return of or compensation for the allegedly seized

package of marijuana, but reversed the dismissal of plaintiffs’ claims for an

injunction barring future federal drug enforcement action and remanded

those claims for further proceedings. The Court held that the claims are ripe

for review because plaintiffs have sufficiently alleged a concrete plan to

violate the law by virtue of plaintiff Mooney’s daily consumption of

marijuana. See Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676

F.3d 829, 836 (9th Cir. 2012).

B. Proceedings on Remand

On remand, defendants filed a renewed motion to dismiss the

complaint, which the district court granted in part and denied in part by

order of December 31, 2012. The court dismissed plaintiffs’ constitutional

7


claims and their claim under the American Indian Religious Freedom Act

(“AIRFA”), see Order at 13-23 (SER 79-89),4 but declined to dismiss their

remaining RFRA claim. See id. at 25 (SER 91).

Defendants then moved for summary judgment on the RFRA claim,

and the court granted that motion on December 31, 2013. ER 4. The court

observed that “[p]laintiffs have given the court almost no admissible

evidence regarding their religion,” Order at 16 (ER 19), and no evidence

sufficient to prove that their use of marijuana is religious in nature. See id.

The only admissible evidence plaintiffs submitted in opposition to

defendants’ summary judgment motion consisted of excerpts from plaintiff

Mooney’s deposition testimony and a declaration Mooney provided at an

earlier stage of the litigation, which verified the First Amended Complaint.

See Order at 17 (ER 20). The court found Mooney’s statements about

Oklevueha Hawaii’s asserted “religious” nature to be “inscrutable,” id. at 20

(ER 23), “vague,” id. at 22 (ER 25), and “muddled, contradictory, and

confusing.” Id. at 26 (ER 29).

4 The district court dismissed plaintiff’s Free Exercise Clause claim because the Controlled Substances Act is a neutral law of general applicability; plaintiffs’ Equal Protection claim because the government has a rational basis for prohibiting marijuana use; and plaintiffs’ AIRFA claim because that statute does not create any legally enforceable rights. See December 21, 2012 Order at 13-23 (SER 79-89). Plaintiffs’ opening appeal brief does not challenge the district court’s reasons for dismissing those claims. As a result, this Court should treat those claims as not preserved in this appeal.

8


The court noted, for example, that Mooney failed to provide

intelligible answers as to whether Oklevueha Hawaii requires individual

participants to adhere to a specific set of religious beliefs, see id. at 22 (ER

25); whether Okleveuha Hawaii is a religious organization or merely a

spiritual one, see id. at 23 (ER 26); whether its marijuana ceremonies are

open to the general public, see id. at 24 (ER 27); and whether it is a branch

of any larger church. See id. at 25 (ER 28). As a result, the court held,

while plaintiffs have a “strongly held belief in the importance or benefits of

marijuana,” id. at 27 (ER 30), the evidence plaintiffs submitted to resist

summary judgment does not show that those beliefs are religious under

RFRA.

SUMMARY OF ARGUMENT

Plaintiffs’ RFRA claim fails for three independent reasons: Plaintiffs

have failed to submit admissible evidence from which a reasonable fact

finder could conclude that their marijuana use constitutes an exercise of

religion; plaintiffs have failed to demonstrate that a ban on marijuana

imposes a substantial burden on that asserted religious practice; and the ban

on plaintiffs’ marijuana use furthers a compelling government interest in

preventing the unauthorized diversion of marijuana.

9


1. A party “may only invoke RFRA if his beliefs are both ‘sincerely

held’ and ‘rooted in religious belief, not in ‘purely secular’ philosophical

concerns.’” United States v. Zimmerman, 514 F.3d 851, 853 (9th Cir. 2007)

(citation omitted) (emphasis added). Although plaintiffs suggest that a court

has no role in determining whether a practice is religious, this Court has

squarely rejected that proposition, holding that to accept that view of the

statute would cause RFRA to “lose[] its sense and thus its ability to protect”

by allowing anyone to obtain the statute’s requirement of compelling

interest/least restrictive means scrutiny merely by labeling whatever that

party wishes to do as religious. Alvarado v. City of San Jose, 94 F.3d 1223,

1230 (9th Cir. 1996).

As the district court concluded, plaintiffs have presented no probative

evidence that their use of marijuana forms part of a religious practice. For

example, plaintiff Mooney did not explain whether Oklevueha Hawaii

requires its members to adhere to a specific set of religious tenets or whether

Olkevueha Hawaii is a religious organization or merely a spiritual one, and

plaintiffs’ appeal brief avers that Oklevueha Hawaii’s marijuana use has the

“goal of a sort of inebriation[.]” Appellants’ Brief at 29.

10


Moreover, while plaintiffs’ appeal brief contains oblique references to

the Native American Church (which is permitted by regulation to engage in

the nondrug use of peyote), the record contains no probative evidence that

Oklevueha Hawaii is a branch of that Church, or that marijuana use (as

opposed to peyote use) is part of that Church’s exercise of religion.

2. The district court also correctly held that plaintiffs’ RFRA claim

fails because the record lacks evidence from which a reasonable fact finder

could conclude that the government has imposed a “substantial burden” on

plaintiffs’ asserted exercise of religion. As the district court noted, plaintiffs

contend that peyote, not marijuana, is their “primary sacrament,”

Appellants’ Br. 5, and the record contains no evidence that that plaintiffs

have inadequate access to peyote or that relying on peyote rather than

marijuana would be anything other than a mere inconvenience. Plaintiffs

have not challenged this holding in their opening appeal brief, which also is

fully sufficient to support summary judgment for the government on

plaintiffs’ RFRA claim.

3. This Court also could affirm on the ground that applying the

Controlled Substances Act to plaintiffs’ marijuana use is the least restrictive

means to achieve the government’s compelling interest in, among other

things, preventing distribution of marijuana to the general public. The

11


record shows that Oklevueha Hawaii is an organization with ephemeral

membership requirements, minimal recordkeeping practices, and little

structure. As a result, exempting plaintiffs’ marijuana use from the

Controlled Substances Act would create an unacceptable risk of diversion of

marijuana.

STATEMENT OF THE STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of

fact exists when the record contains evidence upon which a reasonable fact

finder could rule for the non-moving party. See, e.g., Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party

who asserts that a fact is genuinely disputed must support the assertion by

citing to admissible evidence in the record. See Fed. R. Civ. P. 56(c). This

Court reviews a grant of summary judgment de novo. See, e.g., Range Road

Music, Inc. v. East Coast Foods, Inc., 668 F.3d 1148, 1152 (9th Cir. 2012).

12


ARGUMENT

I. The District Court Correctly Held That No Reasonable Fact Finder Could Conclude On This Record That Plaintiffs’ Marijuana Use Constitutes The Exercise Of Religion.

A. Plaintiffs Failed to Satisfy their Burden of Producing

Evidence Upon Which a Reasonable Fact Finder Could Conclude that Their Marijuana Use is a Religious Practice Under RFRA.

1. The Religious Freedom Restoration Act (“RFRA”) provides that

the Federal Government “shall not substantially burden a person’s exercise

of religion” unless “it demonstrates that application of the burden to the

person . . . is in furtherance of a compelling governmental interest; and . . . is

the least restrictive means of furthering that compelling governmental

interest.” 42 U.S.C. 2000bb-1(a)(b).

A party “may only invoke RFRA if his beliefs are both ‘sincerely

held’ and ‘rooted in religious belief, not in ‘purely secular’ philosophical

concerns.’” United States v. Zimmerman, 514 U.S. 851, 853 (9th Cir. 2007)

(citation omitted) (emphasis added). Accord United States v. Meyers, 95

F.3d 1475, 1484 (10th Cir. 1996). See also Wisconsin v. Yoder, 406 U.S.

205, 216 (1972) (adopting same understanding of “religion” regarding the

Free Exercise Clause); Alvarado v. City of San Jose, 94 F.3d 1223, 1228 &

n.2 (9th Cir. 1996) (adopting same understanding of “religion” regarding the

Establishment Clause).

13


Accordingly, a belief or activity is not religious under RFRA or the

First Amendment merely because a party declares it to be so, see Alvarado,

94 F.3d at 1230; Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521

(9th Cir. 1994); United States v. Meyers, 95 F.3d 1475, 1484 (10th Cir. 1996),

or because a party describes it as being “spiritual.” Alvarado, 94 F.3d at

1230 (“religion” does not include “any symbol or belief to which an

individual ascribes ‘serious or almost-serious’ spiritual significance”).

This Court determines whether a practice is religious (as opposed to

secular, personal, or generically “spiritual”) by applying several

nondispositive factors. See, e.g., Alvarado, 94 F.3d at 1230 (citations

omitted). Those factors include whether the belief or practice “addresses

fundamental questions having to do with deep and imponderable matters,”

whether it is part of a “belief-system as opposed to an isolated teaching,”

and whether it is associated with formal services, ceremonial functions, the

existence of clergy, and . . . other similar manifestations associated with the

traditional religions.” Id. at 1229 (citation omitted).

A party asserting that a belief or practice is religious has the burden of

producing evidence to support that claim. See Navajo Nation v. U.S. Forest

Service, 535 F.3d 1058, 1068 (9th Cir. 2008); Alvarado, 94 F.3d at 1226-31.

See also, e.g., PLANS, Inc. v. Sacramento City Unified Sch. Dist., 2012 WL

14


2045967 (9th Cir. Jun. 7, 2012) (holding that “PLANS failed to meet its

burden of showing that anthroposophy is a religion . . . [because] the record

as it is before us is simply too thin to sustain that conclusion”); Zimmerman,

514 F.3d at 854 (noting that the district court on remand would need to

“determine the precise scope of Zimmerman’s beliefs”).

2. The district court correctly held that plaintiffs have failed to satisfy

their burden of producing evidence that their marijuana use is religious, as

opposed to secular, philosophical or generically spiritual, “because

[p]laintiffs have given the court almost no admissible evidence regarding

their religion.” Id. at 16 (ER 19). The only admissible evidence plaintiffs

presented in opposition to summary judgment is plaintiff Mooney’s own

deposition testimony and an affidavit he submitted to adopt the allegations

of fact stated in the original complaint. See Order at 17 (ER 20). As the

district court correctly ruled, those statements are insufficient to resist

summary judgment because they are “inscrutable” and because “[n]othing in

those statements allows a juror to understand the beliefs, tenets, or practices

of the Church.” Id. at 20 (ER 23).

For example, when Mooney was asked whether Oklevueha Hawaii

requires individual participants to adhere to a specific set of religious beliefs,

he responded:

15


Sure. We encourage. You know, we’re – the whole purpose – one of the sole purposes, one, is to help people regain their relationship with the Creator, you know, which we believe . . . is the elements: is earth, is nature, okay. So that, of course, that’s – that’s what, you know, the ceremonies are. And one of the major reasons why they’re there is to allow people to gain a relationship with God, if you want to, you know, use that word, okay.

Order at 22 (ER 25). Similarly, when Mooney was asked whether in his

view there is a difference between religion and spirituality, Mooney

answered as follows:

Organization to me is religion. So, if it’s a spiritual organization, that is a religion. * * * [O]rganized religion is – is – it’s a community. It’s – we help each other, you know. It’s a church. You know, it’s – it’s not just spiritual. We – seriously, we help each other in society and humanity. It’s – it’s a service. You know, we serve each other, we help each other . . . [s]o I don’t think it’s just linked to spirituality.

Id. at 23 (ER 26). The district court correctly found these statements to be

hopelessly elusive, id. at 23-24 (ER 26-27), and “not isolated generalities”

but “indicative of the way Mooney articulates the content of what he says his

religious beliefs are.” Id. at 23 (ER 26).

As the court observed, numerous other “[c]rucial topics [also] are

repeatedly left unaddressed by Mooney’s statements.” Order at 26 (ER 29).

For example, “despite the references in [plaintiffs’] arguments to peyotism,”

the record lacks any probative evidence that plaintiffs “actually practice

peyotism.” Id.

16


In addition, “the only ‘religious” text Mooney refers to at any point

appears to be his father’s church’s “Code of Ethics,” id. at 25 n.9 (ER 28),

which also “does not explain the tenets of [Mooney’s] alleged religion.” Id.

That “Code of Ethics,” see SER 202, sets forth a set of ‘responsibilities’ that

‘participants’ and ‘leaders’ in the ‘Sacramental Ceremonies’ must take on.”

Order at 25 n.9 (ER 28). “Those responsibilities include ensuring that

‘spiritual practices are inspired and conducted in ways that respect the

common good, with due regard for public safety, health, and order’ and

requiring that participation ‘be voluntary and based on prior disclosure and

consent given by each participant while in an ordinary state of

consciousness.’” Id. As the district court observed, “this document appears

to be more concerned with liability issues than religious doctrine.” Id.

In sum, then, as the district court correctly noted, the record is

completely devoid of any intelligible description of any Oklevueha Hawaii

tenets. See Order at 20 (ER 23) (noting that while Mooney “may have

specialized knowledge about Church tenets,” the “any knowledge of those

tenets remains locked within Mooney”). As a result, no reasonable juror

could conclude on this the record that plaintiffs’ have anything more than a

“strongly held belief in the importance or benefits of marijuana,” Order at 27

(ER 30), which does not constitute the exercise of religion.

17


B. Plaintiffs’ Arguments on Appeal Also Fail to Support Their Claim That Their Marijuana Use Is Religious Activity Under RFRA.

1. Throughout their opening appeal brief, plaintiffs conflate the

issue of whether their beliefs are sincere with the distinct issue of whether

those beliefs constitute religious beliefs, as opposed to “‘purely secular’

philosophical concerns.’” Zimmerman, 514 F.3d at 853-54 (citation

omitted). Accord Alvarado, 94 F.3d at 1229 (New Age not a religion

because it merely constitutes a person’s “own personal way of thinking

about himself and the world around him”) (citation omitted). See also

Meyers, 95 F.3d at 1484 (a court “cannot rely on [a person’s] sincerity to

conclude that his beliefs rise to the level of a ‘religion’” under RFRA).

As this Court explained in Alvarado, the term “religion” does not

“include[] any symbol or belief to which an individual ascribes ‘serious or

almost-serious’ spiritual significance.” Alvarado, 94 F.3d at 1230. “[I]f

anything can be religion, then anything the government does can be

construed as favoring one religion over another, and . . . the government is

paralyzed . . ..” Id. (citation omitted). “While the First Amendment must be

held to protect unfamiliar and idiosyncratic as well as commonly recognized

religions, it loses its sense and thus its ability to protect when carried to the

extreme proposed by the plaintiffs.” Id.

18


Thomas v. Review Board, 450 U.S. 707 (1981), on which plaintiffs

seek to rely, is consistent with these principles. Indeed, Thomas reiterated

that a “nonreligious” belief is not protected by the Free Exercise Clause

merely because it is sincerely held. Id. at 716. Thomas simply clarified that

“[c]ourts should not undertake to dissect religious beliefs because the

believer admits that he is ‘struggling’ with his position or because his beliefs

are not articulated with the clarity and precision that a more sophisticated

person might employ.” Id. at 1430. The district court did not run afoul of

that admonition, and there is no precedent to support plaintiffs’ contention

(Appellants’ Br. 29) that the Establishment Clause precludes a court from

determining whether an alleged exercise of religion is in fact religious.

2. Plaintiffs also do not advance their argument by relying on 21

C.F.R. 1307.31, which provides that “[t]he listing of peyote as a controlled

substance in Schedule I does not apply to the nondrug use of peyote in bona

fide religious ceremonies of the Native American Church[.]” The record

does not indicate that Mooney or any other member of Oklevueha Hawaii is

a member of the Native American Church identified in 21 C.F.R. 1307.31,

or that Oklevueha Hawaii is a branch of, or otherwise legally affiliated with,

that Church. See Order at 21, 25-26 (ER 24, 28-29).

19


Moreover, even if plaintiffs could prove some affiliation with the

Native American Church, there is no indication that the use of marijuana –

as opposed to peyote – forms part of that Church’s religious practice. The

regulation itself refers only to that Church’s use of peyote, and plaintiff has

produced no affidavits from representatives of the Native American Church

or any other probative evidence regarding that Church’s practices. See

Order at 19 (ER 22). See also id. at 16-17 (ER 19-20) (noting that plaintiffs’

documentary exhibits regarding the history of peyotism say nothing about

“whether Plaintiffs are true peyotists, or whether cannabis is an important

drug in peyotism”).5

Plaintiffs also wrongly argue that their marijuana use falls within a

definition of religion they believe is set out in 42 U.S.C. 1996a(c)(3). That

statute permits peyote use by any “Indian for bona fide traditional

ceremonial purposes in connection with the practice of a traditional Indian

religion.” 42 U.S.C. 1996a(b)(1). That statute defines “Indian religion” as

“any religion – (A) which is practiced by Indians, and (B) the origin and

interpretation of which is from within a traditional Indian culture or

community.” 42 U.S.C. 1996a(c)(3).

5 The Department of Justice memoranda and congressional testimony plaintiffs cite also have nothing to do with whether plaintiffs’ marijuana use constitutes the exercise of religion. See Order at 17 (ER 20).

20


Plaintiffs argue that they fall within this definition because Mooney is

an Indian and because peyote and cannabis use constitute “traditional Indian

use,” Appellants’ Brief at 20. This argument fails at every turn. The statute,

by its terms, applies only to a practice that constitutes a “religion.” That

peyote use may form part of the practice of some Indian religions does not

mean that any use of peyote forms part of a religion solely because it is

practiced by an Indian or, in this case, by an entity whose membership

includes at least one Indian. Moreover, as noted above, this statute does not

create a cause of action, see pp. 5-6 n.2, supra, and it applies only to the

nondrug use of peyote, not marijuana.

3. Plaintiffs’ assertion that their marijuana use is an exercise of

religion derives no support from Davis v. Beason, 133 U.S. 333 (1890),

which observed that “[t]he term ‘religion’ has reference to one’s views of his

relations to his Creator, and to the obligations they impose of reverence for

his being and character, and of obedience to his will.” Id. at 342. A

reasonable fact finder could not conclude on this record that plaintiffs’

marijuana use has anything to do with any “obligations” to a Creator or

“obedience to his will,” nor do plaintiffs so argue.

21


Plaintiffs also suggest that religion under RFRA means “‘[v]irtue as

founded upon reverence of God, and expectation of future rewards and

punishments,’ and only secondarily ‘[a] system of divine faith and

worship.’” Brief for Appellant at 19 (citing County of Allegheny v. ACLU,

492 U.S. 573, 648 (1989) (Stevens, Brennan, and Marshall, concurring in

part and dissenting in part) (citation omitted)). Plaintiffs’ marijuana use

does not fit that definition on this record, either, because plaintiffs do not

contend that their marijuana use has anything to do with any belief in “future

rewards and punishments” or that Oklevueha Hawaii involves any “system”

of faith. See Amended Complaint at 2 (SER 16) (alleging that Oklevueha

Hawaii exists “only . . . to espouse the virtues of, and to consume” marijuana

and other drugs). See also Meyers, 95 F.3d at 1483 (noting that religious

beliefs “generally are not confined to . . . a single teaching”). Moreover,

plaintiffs have conceded that their asserted religious practice is not exclusive

of any other beliefs and may be concurrently followed alongside any

religious belief, including atheism. See Defendants’ Concise Statement of

Material Facts, R135-3, ¶ 4; Plaintiffs’ Concise Statement of Facts, R140-1,

p. 1 (admitting Defendant’s Asserted Fact #4). Such amorphous views do

not amount to religious beliefs or practices under this Court’s cases. See,

e.g., Alvarado, 94 F.3d at 1229.

22


Plaintiffs also wrongly criticize the district court for stating that “a

religion should encompass more than getting ‘high.’” Appellants’ Brief at

20. See Order at 26-27 (ER 29-30). The court made that statement in

describing plaintiffs’ evidentiary failure to distinguish their marijuana use

from any other secular use of that drug, see id., which is fatal to a claim that

a practice is religious. Inasmuch as plaintiffs declare that their practice has a

“goal of a sort of inebriation,” Appellants’ Brief at 29, the district court’s

choice of language can hardly be faulted. Moreover, immediately following

this statement, the court emphasized that it was “not requiring Plaintiffs to

have a religious organization akin to the Roman Catholic Church, or to

produce written membership lists or a formal theological document.” Id. at

27 (ER 30). Thus, the district court did not wrongly assume that RFRA only

protects traditional forms of worship.

Finally, plaintiffs wrongly suggest that “[i]t is now painfully clear that

the [district] court has actually ruled that the Native American Church of

Hawaii is not a religion!” Appellants’ Brief at 32. The district court made

no such holding. It merely held that plaintiffs have failed to satisfy their

evidentiary burden of producing evidence based upon which a reasonable

fact finder could conclude that plaintiffs’ marijuana use constitutes the

exercise of religion.

23


C. Plaintiffs’ RFRA Claim Also Fails Because the Record Would Not Support a Finding that the Government Has Imposed a “Substantial Burden” on Plaintiffs’ Alleged Exercise of Religion.

The district court also correctly held, in the alternative, that plaintiffs

provided no evidence that prohibiting their marijuana use would impose a

“substantial burden” on their alleged exercise of religion. See Order at 28

(ER 31). As the court noted, Mooney identified peyote, not marijuana, as his

religion’s “primary sacrament,” and listed a “litany” of other drugs his

church members use. Order at 28 (ER 31). “‘Nothing in the record explains

why relying on these other drugs instead of cannabis would be more than an

inconvenience for Plaintiffs.” Id. at 28-29 (ER 31-32). For example, the

court noted that “[w]hile Plaintiffs claim that cannabis is useful when peyote

is in short supply, there is no evidence (or even assertion) before the court

that Plaintiffs are finding peyote in short supply in Hawaii at this time,” id.

at 29 (ER 32), or that cannabis is the only substitute for peyote that would be

acceptable to plaintiffs. See id. In the absence of such evidence, the district

court correctly held that plaintiffs cannot prove that the prohibition on

cannabis would require plaintiffs to choose between following their religion

and following the law. See id. at 28 (ER 31).

24


Plaintiffs’ brief fails to acknowledge, much less challenge, the district

court’s analysis regarding the “substantial burden” aspect of the prima facie

case plaintiffs must prove under RFRA. Accordingly, plaintiffs have

effectively conceded the issue for purposes of this appeal, and the judgment

can be properly affirmed on this ground. See, e.g., United States v. Anekwu,

695 F.3d 967, 985 (9th Cir. 2012) (“an appellant ‘waives arguments by

failing to raise them . . . in his opening [appeal] brief’”).

II. Defendants Also Are Entitled To Summary Judgment Because Applying the Controlled Substances Act To Plaintiffs’ Marijuana Use Is The Least Restrictive Means To Accomplish Compelling Government Interests. Although the district court did not reach this issue, this Court also

could affirm the grant of summary judgment on the ground that applying the

Controlled Substances Act to plaintiffs’ marijuana use is the least restrictive

means necessary to achieve compelling government interests, including the

government’s compelling interest in preventing the diversion of marijuana to

the general public. See, e.g., Petoliam Nasional Berhad v. GoDaddy.com,

Inc., 737 F.3d 546, 549 (9th Cir. 2013) (noting that this Court can affirm on

any ground supported in the record).

25


A. Exempting Plaintiffs’ Marijuana Use from the CSA Would Create Unacceptable Risks of Diversion of Marijuana to the General Public.

This Court has held that the government has a compelling interest in

stemming the illicit traffic of marijuana. See, e.g., United States v. Lepp, 446

F. App’x 44, 46 (9th Cir. 2011) (recognizing a compelling interest in

“preventing diversion of sacramental marijuana to nonreligious users”);

United States v. Lafley, 656 F.3d 936, 940 (9th Cir. 2011) (compelling

interest in preventing a convicted felon from using marijuana on supervised

release); Multi-Denominational Ministry of Cannabis & Rastafari, Inc. v.

Holder, 365 F. App’x 817, *2 (9th Cir. 2010) (compelling interest in

preventing diversion of marijuana to non-Church members).

A reasonable fact finder would conclude on this record that

exempting plaintiffs’ marijuana use from the CSA would create an

unacceptable risk of diversion of marijuana to the general public. The

record shows that Olkevueha Hawaii is an organization with loose

membership requirements, minimal recordkeeping practices, and little in the

way of structure or resources. Exempting such a fluid, unstructured

organization from the CSA would create an unacceptable risk that marijuana

intended for purportedly religious use would be diverted to unauthorized

uses.

26


Oklevueha Hawaii admits that it performs no screening of prospective

members, see Pls.’ Third Answers to Defs.’ First Set of Interrogs. No. 11

(SER198); that it allows any adult who learns of and comes to a Church

cannabis ceremony to participate in the ceremony and to be deemed a

member, see Mooney Dep. 137–139 (SER 164-166); Defendants’ Concise

Statement of Facts, R135-3, ¶ 6; Plaintiffs’ Concise Statement of Facts,

R140-1, p. 1; and that it keeps no written records of its membership.6

Oklevueha Hawaii also admits that it has no documents in its possession,

custody, or control that track or inventory the amounts of cannabis brought

to or used at its ceremonies or obtained or used by its members. See

Mooney Dep. 199 (SER 178). In response to defendants’ requests for

production, the plaintiffs insisted that they have no such documents and

represented to the district court that no further responsive documents exist.

See Pls.’ Third Answers to Defs.’ First Set of Interrogs. No. 7 (SER 194); Tr.

of Defs.’ Mot. to Amend Scheduling Order 8-10, 13 (SER 99-101, 104).

6 Defendants served plaintiffs with a request for production of the Church’s membership records. See Defs.’ First Reqs. for Produc. of Docs. No. 5 (SER 209). Plaintiffs did not produce any membership lists or raise any objection to the request, and represented to the district court that there were no responsive documents that had not been produced to the defendants. See Pls.’ Resp. to Defs.’ First Req. for Produc. of Docs. No. 5 (SER 218); Tr. of Defs.’ Mot. to Amend Scheduling Order 8–10, 13 (SER 99-101, 104). See also Mooney Dep. 129, 132–134, 174 (SER 160-63, 168); Rule 30(b)(6) Dep. 30–31, 33–35, 37, 40-41, 43-44 (SER 118-123, 126-129).

27


The absence of any documentation also means that there is no

meaningful monitoring, tracking, or control of the marijuana that is used in

Oklevueha Hawaii ceremonies, which is supplied and maintained by

individual members. See Pls.’ Third Answers to Defs.’ First Set of Interrogs.

No. 7 (SER 194); Mooney Dep. 197 (SER 177). The roving character of

plaintiffs’ ceremonies further compounds the risk of diversion, as plaintiffs

have testified that their ceremonies are conducted in various locations “[a]ll

around the Hawaiian islands,” including open areas such as “valleys around

the Hawaiian islands” and “beaches.” Mooney Dep. 98-99, 102 (SER 156-

57, 159). Moreover, plaintiff Mooney testified that Oklevueha Hawaii

exercises no control over its members’ individual use of cannabis:

Q Now, are church members permitted to use cannabis recreationally if they wish?

A I or the church cannot control what individuals members do, man, okay. If they choose to be unconscious with something, and they choose to—to make an unsacred—to not honor the sacrament, okay, that’s their gig, that’s their personal agenda.

We do live in a free country. We do have our choice, whether we are in a free country or not. What people choose to do, people are—that’s—that’s their choice, okay.

Am I going—am I going to make them take away their membership and say you are no longer welcome to come to ceremonies because I heard that so—Joe or Jane was abusing cannabis on my—in my opinion? No, I am not.

Rule 30(b)(6) Dep. 152 (SER 137).

28


B. Applying the CSA to Plaintiffs’ Marijuana Use is Consistent with the Supreme Court’s Decision in O Centro and is Otherwise Lawful Under RFRA.

In Gonzalez v. O Centro Espirita Beneficiente Uniao Do Vegetal, 546

U.S. 418 (2006), on which plaintiffs place considerable reliance, the

government argued that the Controlled Substances Act “establishes a closed

regulatory system that admits of no exceptions under RFRA.” Id. at 434.

The Supreme Court rejected that argument, holding that RFRA requires

courts to “strike sensible balances, pursuant to a compelling interest test that

requires the Government to address the particular practice at issue.” Id. at

437.

O Centro is distinguishable because the government is not arguing

here that RFRA exemptions from the CSA are categorically unavailable: our

argument with respect to RFRA’s compelling interest and least restrictive

means tests rests upon Oklevueha Hawaii’s nature and structure, or to be

more precise, lack of structure. That kind of plaintiff-specific analysis is

precisely what the Supreme Court in O Centro directed the lower courts to

apply. See, e.g., Lafley, 656 F.3d at 941 (distinguishing O’Centro on similar

grounds).

29


Plaintiffs also vaguely assert that they would be willing to agree to

reasonable restrictions on their marijuana use. See Appellants’ Brief at 21.

Plaintiffs fail to identify any such restrictions, however, and none are

available, particularly given Oklevueha Hawaii’s amorphous membership

policies, marijuana use in homes and on public beaches, and fundamental

lack of structure. See pp. 26-28, supra. See also Lafley, 656 F.3d at 942

(holding that “[r]equiring continuous monitoring of Lafley’s marijuana use .

. . would place an unreasonable burden on a probation office”); Olsen v.

DEA, 878 F.2d 1458, 1462 (D.C. Cir. 1989) (noting that “[i]t is hardly

unreasonable to forecast a large monitoring burden in light of evidence that

in years past, the church’s ‘[c]hecks on distribution of cannabis to

nonbelievers in the faith [were] minimal’ . . . and ‘[m]embers [partook] of

cannabis anywhere, not just within the confines of a church facility’”).

Finally, plaintiffs allege there is no evidence that their marijuana use

has actually led to diversion of marijuana to the public. See Appellants’ Brief

at 40. Nothing in RFRA precludes the government from acting to prevent

such harms, however, and a reasonable fact finder would conclude that

plaintiffs’ practices either already have caused marijuana to be diverted to

the public or are likely to do so in the future. See pp. 26-28, supra.

30


CONCLUSION

For the foregoing reasons, the judgment of the district court should be

affirmed.

Respectfully submitted, STUART F. DELERY Assistant Attorney General FLORENCE NAKAKUNI United States Attorney MARK STERN (202) 514-5089 s/LOWELL V. STURGILL JR. (202) 514-3427 Attorneys, Civil Division Appellate Staff, Room 7241 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 JULY 2014

31


STATEMENT OF RELATED CASES

Counsel is not aware of any related cases to this case within the

meaning of Ninth Circuit Rule 28-2.6.

Lowell V. Sturgill Jr. s/Lowell V. Sturgill Jr.


CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the type-

volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief contains

6538 words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii). This brief complies with the typeface requirements of Fed.

R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P.

32(a)(6) because this brief has been prepared in a proportionally spaced

typeface using Word 14-point Times New Roman typeface.

s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.


CERTIFICATE OF SERVICE

I hereby certify that on July 18, 2014, I electronically filed the

foregoing Brief for Appellee with the Clerk of the Court by using the

appellate CM/ECF system. The participants in the case are registered

CM/ECF users and service will be accomplished by the appellate

CM/ECF system.

Michael A. Glenn 1188 Bishop St., Suite 3101 Honolulu, HI 96813 (808) 523-3079 /s/ Lowell V. Sturgill Jr. Lowell V. Sturgill Jr.


Addenda

1. Defendants’ Concise Statement of Facts, R135-3 2. Plaintiffs’ Concise Statement of Facts, R140-1


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

OKLEVUEHA NATIVE AMERICAN CHURCH OF HAWAII, INC., and MICHAEL REX “RAGING BEAR” MOONEY,

Plaintiffs,

v. ERIC H. HOLDER, JR., U.S. Attorney General; MICHELE LEONHART, Administrator, U.S. Drug Enforcement Administration; and FLORENCE T. NAKAKUNI, U.S. Attorney for the District of Hawaii,

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV 09-00336 SOM-BMK DEFENDANTS’ CONCISE STATEMENT OF MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Judge: Hon. Susan Oki Mollway Trial: March 18, 2014, 9:00 a.m.

DEFENDANTS’ CONCISE STATEMENT OF MATERIAL FACTS IN

SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Case 1:09-cv-00336-SOM-BMK Document 135-3 Filed 11/01/13 Page 1 of 7 PageID #: 1093


Defendants Eric H. Holder, Jr., U.S. Attorney General; Michele Leonhart,

Administrator, U.S. Drug Enforcement Administration; and Florence T. Nakakuni,

U.S. Attorney for the District of Hawaii, pursuant to Rule 56(c) of the Federal

Rules of Civil Procedure and Local Rule 56.1(a) of this Court, submit the

following concise statement of material facts in support of their motion for

summary judgment.

1. Plaintiff Oklevueha Native American Church of Hawaii, Inc.,

(“Oklevueha Hawaii”) is a Hawaii nonprofit corporation. First Am. Compl. for

Declaratory Relief and for Prelim. and Permanent Injunctive Relief ¶ 9, ECF No.

26.

2. Plaintiff Michael Rex “Raging Bear” Mooney is the founder and

principal officer of Oklevueha Hawaii. Am. Compl. ¶ 2.

3. Oklevueha Hawaii is an affiliate of Oklevueha Earthwalks Native

American Church of Utah (“Oklevueha Utah”), which operates a Web site at

www.nativeamericanchurch.net. Rule 30(b)(6) Dep. 38:23–39:8 (attached as Ex.

1). Oklevueha Hawaii refers to Oklevueha Utah as its “mother church.” Rule

30(b)(6) Dep. 38:23–39:1.

4. Oklevueha Hawaii’s set of beliefs is not exclusive of other beliefs;

that is, a practitioner may concurrently follow any religious belief, including



atheism, alongside the Oklevueha Hawaii set of beliefs. Mooney Dep. 74:1–12,

93:8–16 (attached as Ex. 2).

5. Oklevueha Hawaii’s cannabis-related activities include (1) group

ceremonies and (2) private use of cannabis by individual members. Mooney Dep.

183:18–184:6.

6. Oklevueha Hawaii conducts no screening of prospective members and

welcomes all comers. Pls.’ Third Answers to Defs.’ First Set of Interrogs. no. 11

(attached as Ex. 3). In fact, any adult who learns of and comes to an Oklevueha

Hawaii cannabis ceremony is permitted to participate in the ceremony and is

deemed a member. Mooney Dep. 137:16–138:4, 139:10–15.

7. Oklevueha Hawaii members share cannabis at Oklevueha Hawaii

ceremonies. Rule 30(b)(6) Dep. 111:1–113:7. This is unlawful under Hawaii state

law even assuming that Oklevueha Hawaii members’ individual use of cannabis

were otherwise authorized under state-law provisions regarding medical use of

marijuana.

8. At least some Oklevueha Hawaii ceremonies are conducted in areas

accessible to the public, such as beaches. Mooney Dep. 98:23–99:14, 102:1–6.

This is unlawful under Hawaii state law even assuming that Oklevueha Hawaii

members’ individual use of cannabis were otherwise authorized under state-law

provisions regarding medical use of marijuana.

2



9. Plaintiff Mooney does not hold a current medical marijuana card.

Mooney Dep. 192:10–21. Accordingly, his use of cannabis is unlawful under

Hawaii state law even assuming that it would otherwise be authorized under state-

law provisions regarding medical use of marijuana.

10. Oklevueha Hawaii was incorporated as a Hawaii nonprofit

corporation on January 7, 2009. Ex. 7 § VI (Articles of Incorporation). Based on

that date of incorporation, each year it is required to file by March 31 an annual

report of its condition as of January 1.

11. Oklevueha Hawaii’s annual report of its condition as of January 1,

2013, was due on March 31, 2013, but was filed late, on August 28, 2013. Rule

30(b)(6) Dep. 136:1–8. Consequently, from April 1, 2013, to August 27, 2013,

Oklevueha Hawaii was not in good standing under Hawaii law.

12. Oklevueha Hawaii’s sources of funds consist solely of “pass-the-hat”-

style contributions. Pls.’ Third Answers to Defs.’ First Set of Interrogs. no. 9;

Mooney Dep. 193:9–194:4.

13. Oklevueha Hawaii owns no real property, and its assets consist solely

of about $500 held in a bank deposit account. Rule 30(b)(6) Dep. 136:18–138:25.

14. Oklevueha Hawaii has no list of its members in its possession,

custody, or control. Pls.’ Resp. to Defs.’ First Req. for Produc. of Docs. no. 5

(attached as Ex. 6). While records of Oklevueha Hawaii’s membership may exist in

3



the possession of a member of the organization or in the possession of Oklevueha

Hawaii’s parent organization, the plaintiffs have stated that those records, if they

exist, are outside their possession, custody, or control. Mooney Dep. 129:2–13,

132:22–24, 133:4–134:3; Rule 30(b)(6) Dep. 30:8–31:6, 33:18–35:10, 37:15–18,

40:12–41:9. Such records were not made available to the defendants in response to

a discovery request seeking “[d]ocuments recording or reflecting the current or

past membership of Oklevueha Hawaii, including but not limited to lists of

members, participants, officers, leadership, personnel, or representatives.” Defs.’

First Reqs. for Produc. of Docs. to Pls. no. 5 (attached as Ex. 5); Pls.’ Resp. to

Defs.’ First Req. for Produc. of Docs. no. 5. The plaintiffs also did not assert any

objections to this discovery request, and they represented to the Court that all

responsive documents had been produced to the defendants. Pls.’ Resp. to Defs.’

First Req. for Produc. of Docs. no. 5; Tr. of Defs.’ Mot. to Amend Scheduling

Order 8:1–10:19, 13:15–19, ECF No. 104; Rule 30(b)(6) Dep. 157:1–8, 158:6–9,

158:22–159:3.

15. Oklevueha Hawaii has no documents in its possession, custody, or

control tracking or inventorying the amounts of cannabis brought to or used at its

ceremonies or obtained or used by its members. Mooney Dep. 199:15–19; Tr. of

Defs.’ Mot. to Amend Scheduling Order 8:1–10:19, 13:15–19; Rule 30(b)(6) Dep.

157:1–8, 158:6–9, 158:22–159:3.

4



16. At least some of the cannabis used at the plaintiffs’ ceremonies is

supplied and maintained by individual members. Pls.’ Third Answers to Defs.’ First

Set of Interrogs. no. 7; Mooney Dep. 197:6–11.

17. If they are granted the injunction they seek, the plaintiffs intend to

expand their activities to include growing marijuana in “church gardens.” Mooney

Dep. 200:16–201:17.

18. Oklevueha Hawaii does not notify local law enforcement authorities

in advance of its ceremonies. Mooney Dep. 100:5–9.

19. While Oklevueha Hawaii purports to frown on recreational use of

marijuana, Oklevueha Hawaii policies do not forbid members from using

marijuana for recreational rather than spiritual purposes. Rule 30(b)(6) Dep.

152:6–25.

20. Oklevueha Hawaii makes no efforts to determine the pregnancy status

of persons who seek to participate in its ceremonies or exclude pregnant women

from its ceremonies. Pls.’ Third Answers to Defs.’ First Set of Interrogs. no. 3;

Mooney Dep. 181:20–24.

21. Oklevueha Hawaii leaves it to individual members to decide whether

they are in a condition to drive home safely after a ceremony involving cannabis

use. Mooney Dep. 217:11–23.

Date: November 1, 2013 Respectfully submitted,

5



STUART F. DELERY Assistant Attorney General FLORENCE T. NAKAKUNI United States Attorney THOMAS A. HELPER Assistant United States Attorney ANTHONY J. COPPOLINO Deputy Branch Director /s/ JAMES C. LUH JAMES C. LUH BRAD P. ROSENBERG Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave NW Washington DC 20530 Tel: (202) 514-4938 Fax: (202) 616-8460 E-mail: [email protected] Attorneys for Defendants

6



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