O Centro Espirita Beneficiente Unia O Do Vegetal v. Ashcroft, (10th Cir. 2004)

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PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

O CENTRO ESPIRITABENEFICIENTE UNIAO DEVEGETAL, also known as Uniao doVegetal (USA), Inc., a New Mexicocorporation on its own behalf and onbehalf of all of its members in theUnited States; JEFFREYBRONFMAN, individually and asVice-President of UDV-USA;DANIEL TUCKER, individually andas Vice-President of UDV-USA;CHRISTINA BARRETO,individually and as Secretary ofUDV-USA; FERNANDO BARRETO,individually and as Treasurer ofUDV-USA; CHRISTINE BERMAN,MITCHEL BERMAN, JUSSARA DEALMEIDA DIAS, also known asJussara Almeida Dias, PATRICIADOMINGO, DAVID LENDERTS,DAVID MARTIN, MARIAEUGENIA PELAEZ, BRYAN REA,DON ST. JOHN, CARMENTUCKER, and SOLAR LAW,individually and as members ofUDV-USA,

Plaintiffs-Appellees,

v.

JOHN ASHCROFT, AttorneyGeneral of the United States; ASAHUTCHINSON, Administrator of theUnited States Drug EnforcementAdministration; PAUL H. O'NEILL,Secretary of the Department ofTreasury of the United States;DAVID C. IGLESIAS, United StatesAttorney for the District of NewMexico; DAVID F. FRY, ResidentSpecial Agent in Charge of theUnited States Customs Service Officeof Criminal Investigation inAlbuquerque, New Mexico; all intheir official capacities,

Defendants-Appellants.

No. 02-2323

ON EMERGENCY MOTION FOR STAY PENDINGAPPEAL APPEAL FROM THE UNITED STATES DISTRICTCOURTFOR THE DISTRICT OF NEW MEXICO(D.C. No. 00-CV-1647 JP)

Submitted on the briefs:

Michael Jay Singer and Matthew M. Collette, of Appellate Staff, Civil Division,U.S. Department of Justice, Washington, D.C., for Defendants-Appellants.

Nancy Hollander and John W. Boyd, of Freedman, Boyd, Daniels, Hollander,Goldberg & Cline P.A., Albuquerque, New Mexico, for Plaintiffs-Appellees.

ORDERFiled December 12, 2002

Before KELLY and HARTZ, CircuitJudges.

KELLY, Circuit Judge.

This matter is before the court on the government's emergency motion fora stay pending appeal, or alternatively an administrative stay pendingconsideration of a stay pending appeal. Upon consideration thereof,

(1) The government seeks a stay of the district court's November 13, 2002,preliminary injunction enjoining the government from enforcement of theControlled Substances Act ("CSA"), as it pertains to Plaintiffs' importation,possession, and distribution of hoasca for religious ceremonies. Hoasca is a tea-like mixturemade from two Brazilian plants, one of which contains ahallocinogenic controlled substance known as dimethyltryptamine ("DMT"), aSchedule I controlled substance. The district court's preliminary injunctionincorporated various findings from its August 12, 2002, memorandum opinionand order which rejected many of the Plaintiffs' claims but determined thatPlaintiffs were entitled to a preliminary injunction under the Religious FreedomRestoration Act ("RFRA"), 42 U.S.C. § 2000bb.

(2) We recently discussed the applicable standard for a stay pendingappeal in Homans v. City of Albuquerque, 264 F.3d 1240 (10th Cir. 2001).

For us to consider a request for a stay or an injunction pendingappeal, 10th Cir. R. 8.1 requires the applicant to address thefollowing: "(a) the likelihood of success on appeal; (b) the threat ofirreparable harm if the stay or injunction is not granted; (c) theabsence of harm to opposing parties if the stay or injunction isgranted; and (d) any risk of harm to the public interest." In ruling onsuch a request, this court makes the same inquiry as it would whenreviewing a district court's grant or denial of a preliminaryinjunction. McClendon v. City of Albuquerque, 100 F.3d 863, 868n.1 (10th Cir. 1996).

Homans, 264 F.3d at 1243. When reviewing the district court's grant ofpreliminary injunctive relief, we may set it aside for an abuse of discretion, anerror of law or clearly erroneous factual findings. See SCFC ILC, Inc. v. VisaUSA, Inc., 936 F.2d 1096, 1098-99 (10th Cir. 1991). Because the injunction inthis case alters the status quo (enforcement of the Controlled Substances Act("CSA") and compliance with the 1971 UN Convention on PsychotropicSubstances), the proponents of the injunction should have demonstrated to thedistrict court that the right to relief was "clear and unequivocal." Id.

(3) Here, all parties agree that enforcement of the CSA substantiallyburdens the Plaintiffs' exercise of religion. 42 U.S.C. § 2000bb-1(a). It thusbecame the government's burden to demonstrate that the burden furthers acompelling governmental interest and is the least restrictive means of furtheringthat interest. 42 U.S.C. § 2000bb-1(b). The government had "the burdens ofgoing forward with the evidence and of persuasion." 42 U.S.C. § 2000bb-2(3);United States v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002). This circuithas not decided on the appropriate standard of review for a "least restrictivemeans" analysis by the district court. Id. However, we have made it clear thatthe "ultimate determination as to whether the RFRA has been violated" isreviewed de novo. United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir.1996).

(4) Although RFRA is incorporated into the CSA and must inform treatyobligations, we grant the government's motion in this case for two reasons. First,the district court's conclusion that the 1971 UN Convention on PsychotropicSubstances does not extend to hoasca is in considerable tension with the languageof that Convention, particularly Article 1(f), defining "preparation" and Article 3,§ 1 providing that "a preparation is subject to the same measures of control as thepsychotropic substances which it contains." Hoasca is plainly a preparationcontaining DMT. As for the argument that plants cannot constitute preparations,Article 32, § 4 permits "reservations concerning these plants" for magical orreligious rites, thereby suggesting that plants are covered, although a reservationconcerning a plant (i.e., a substance contained in a plant) is possible. We areunpersuaded that the Commentary or contrary opinions on the meaning of theConvention are sufficient to override the plausible interpretation of theConvention by the executive.

(5) Second, the district court's factual findings are in considerable tensionwith (if not contrary to) the express findings in the CSA that "any material,compound, mixture, or preparation which contains any quantity of" DMT, 21 U.S.C. § 812 Schedule 1(c), "has a high potential for abuse[,] . . . has nocurrently accepted medical use in treatment in the United States[,] . . . [and][t]here is a lack of accepted safety for use of the drug or other substance undermedical supervision." 21 U.S.C. § 812(b)(1) (Schedule I required findings); seealso 21 U.S.C. § 801(2) (Congressional findings). The CSA prohibition oninvolvement with controlled substances is extremely broad. See 21 U.S.C.§§ 841(a)(1), 952(a); United States v. Oakland Cannabis Buyers'Coop., 532 U.S.483, 493 (2001).

(6) Courts have routinely rejected religious exemptions from lawsregulating controlled substances employing tests similar to that required byRFRA. See United States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989);Olsen v. DEA, 878 F.2d 1458, 1461-62 (D.C. Cir. 1989); Olsen v. Iowa, 808F.2d 652, 653 (8th Cir. 1986); United States v. Rush, 738 F.2d 497, 512-13 (1stCir. 1984); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982); seealso Employment Div. v. Smith, 494 U.S. 872, 905 (1990) (O'Connor, J.,concurring). Even after enactment of RFRA, religious exemptions from ordefenses to the CSA have not fared well. See United States v. Brown, 72 F.3d134, 1995 WL 732803 (8th Cir. 1995); United States v. Jefferson, 175 F. Supp.2d 1123, 1131 (N.D. Ind. 2001). Moreover, as noted by the government here,permission for sacramental use of peyote was granted by Congressafter enactment of RFRA, suggesting Congressional doubts that RFRA wassufficient (alone) to grant an exemption. Gov't Reply Br. at 9 (citing 42 U.S.C.§ 1996a).

(7) The government suffers irreparable injury when its criminal laws areenjoined without adequately considering the unique legislative findings in thisfield. See Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)(Rehnquist, J.) (granting stay) ("It also seems to me that any time a State isenjoined by a court from effectuating statutes enacted by representatives of itspeople, it suffers a form of irreparable injury."). Although we do not minimizethe imposition on the Plaintiffs' free exercise of their religious beliefs, a stay willmerely reinstate the status quo. Concerning the public interest, we haveCongressional findings in the CSA regarding the dangers caused by controlledsubstances "to the health and general welfare of the American people." § 801(2). Moreover, the government contends that an injunction requiring the federalgovernment to violate an international treaty could have serious consequences forefforts to obtain the assistance of other nations in drug control; we are reluctantto second-guess the executive regarding the conduct of international affairs. SeeINS v. Abudu, 485 U.S. 94, 110 (1988) (INS decisions entitled to specialdeference because INS officials "must exercise especially sensitive politicalfunctions that implicate questions of foreign relations"). Furthermore, freeexercise case law pre-Employment Div. suggests that religious accommodationsrequiring "burdensome and constant official supervision and management" areespecially disfavored. Olsen, 878 F.2d at 1462-63. As indicated by the districtcourt's thirty-six conditions in its preliminary injunction, see, e.g., Gov't Emer.Motion, tab A at 4, ¶¶ 7 (requiring provision of social security numbers ifrequested by the DEA of handlers of hoasca outside of ceremonies); 13 (if DEArequests inspection and Plaintiffs believe DEA inspection would violateassociation rights, Plaintiffs may withhold inspection pending district courtdetermination of whether the inspections are lawful), extensive judicial andadministrative oversight of the Plaintiffs' handling and use of hoasca wouldlikely be necessary in any arrangement that permits Plaintiffs' religious use ofhoasca while respecting the public interest in preventing diversion of DMT andprotecting the public health and safety.

The government's emergency motion for a stay pending appeal is grantedand the district court's preliminary injunction is stayed pending further order ofthis court.

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