Oklevueha Native American Church of Hawaii, Inc. et al v. Holder et al
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT. Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/31/2013. ~ Summary Judgment is granted in favor of the Government on the Religious Freedom Restoration Act claim ~ [Written order follows hearin g held 12/16/2013 on Defendants' Motion for Summary Judgment. Minutes: docket entry no. 146 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
OKLEVUEHA NATIVE AMERICAN
CHURCH OF HAWAII, INC.;
MICHAEL REX “RAGING BEAR”
ERIC H. HOLDER, JR., U.S.
Attorney General; MICHELE
Administrator, U.S. Drug
FLORENCE T. NAKAKUNI, U.S.
Attorney for the District of )
CIVIL NO. 09-00336 SOM/BMK
ORDER GRANTING MOTION FOR
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
Plaintiffs Michael Rex “Raging Bull” Mooney and the
Oklevueha Native American Church of Hawaii, Inc., seek an order
from this court allowing them to engage in the “consumption,
cultivation, possession and distribution of cannabis.”
Amended Complaint (“FAC”) ¶ Intro.
They ask this court to
declare that criminal prosecution for these activities, pursuant
to the federal Controlled Substances Act (“CSA”), 21 U.S.C.
§ 841, would violate their right to freely exercise their
religion under the Religious Freedom Restoration Act (“RFRA”), 42
U.S.C. § 2000bb-1.
Plaintiffs also seek an injunction
prohibiting any such future prosecution.
The Government moves for summary judgment in its favor.
Despite the parties’ opportunities to take discovery, they
present the court with a factual record that is extremely thin.
Plaintiffs’ admissible evidence as to what the beliefs and tenets
of the Oklehueva Church are, or how the prohibition on cannabis
use and distribution substantially burdens the exercise of their
alleged religion, consists primarily of Mooney’s own statements.
On the bare record before the court, a jury could not reasonably
find in favor of Plaintiffs without, in effect, determining that
any individual could use any drug by simply asserting that he or
she was part of a religion that used that drug as a sacrament.
Given what little is before the court, this court grants summary
judgment in favor of the Government on the RFRA claim, which is
the only claim remaining in this case.
Michael Rex “Raging Bull” Mooney (“Mooney”) is the
“founder,” “spiritual leader,” and “medicine custodian” of the
Native American Church of Hawaii, Inc (“the Church”). FAC ¶ 2,
ECF No. 26.1
“[T]he Church only exists to espouse the virtues
of, and consume, entheogens,” id. ¶ Intro., which are “chemical
Mooney adopts the allegations in the original Complaint as
true. See Affidavit of Michael Rex “Raging Bear” Mooney in
Opposition to Motion to Dismiss ¶ 7, ECF No. 20. The court
considers here such factual assertions in the FAC as Mooney
apparently has personal knowledge of, to the extent that they are
identical to those made in the original Complaint.
substance[s] . . . [that] produce a nonordinary state of
consciousness for religious or spiritual purposes.”
American Dictionary 578 (3d ed. 2010).
The Church “embraces all
entheogenic naturally occurring substances.”
Plaintiffs claim that their Church has 250 members in
Hawaii, id. ¶ 41, although they do not have any actual records
regarding the Church’s membership.
Mooney at 132-34, ECF No. 135-5.
See Deposition of Michael
See also Plaintiff’s Response
to Defendant’s First Request for Production of Documents, ECF No.
135-9, at Request No. 5 (stating that Plaintiffs have no
documents reflecting the current or past membership of
Confusingly, Mooney at one point suggested that he
did have files in “a binder” but said that, “I’ve already told
you guys, there’s information that I will not give you period.
I’m not giving you a list of my church members’ names.
not getting that.”
ECF No. 135-5 at 174, Page ID # 1155.
FAC similarly asserts that the Church “maintains accurate records
of its authorized participants and medicine people, as do all
Oklevueha NAC Branches.”
FAC ¶ 20, ECF No. 26.
Plaintiffs allege that Mooney is a Native American of
Seminole ancestry, FAC ¶ 10, and that the Church is one of 100
branches of the Native American Church, which they say is a
recognized religion with an estimated 500,000 members in more
than 24 states.
See id. ¶ 19; see also People v. Woody, 61 Cal.
2d 716, 720-21, 394 P.2d 813, 816-18 (1964).
It is not clear
that Mooney himself has personal knowledge allowing him to attest
to that national membership.
Moreover, the FAC appears to elide
the distinction between the “Native American Church of North
America,” the subject of a number of other cases, and the
Oklevueha Native American Church.2
assertions about the Church in the FAC, counsel for Plaintiffs
claimed more than once at the hearing on the present motion that
the Church has no official affiliation with a larger Native
American Church because there is no larger Native American Church
relevant to Oklevueha.
Counsel described Oklevueha’s religion as
Counsel appeared to be differentiating the Church in
this case from the Native American Church of North America, which
counsel described as an assemblage or association of churches
that also practice peyotism.3
Plaintiffs’ counsel said that the
Native American Church of North America requires each member
In paragraph 19 of the FAC, Plaintiffs refer to “over 100
branches of the Native American Church,” but in paragraphs 20 to
22, Plaintiffs refer only to the “Oklevueha North American Church
Branches.” Whatever the origins or composition of the
“Oklevueha” organization, it appears to be distinct from the
Native American Church of North America. As far as the court can
discern from the record, the “Oklevueha” group originated with
Mooney’s father, and has a presence in Utah and Hawaii. See
Deposition of Mooney as Rule 30(b)(6) Church representative at
38-39, ECF No. 135-4.
Although its composition may extend
beyond those two states, nothing in the record so indicates.
The practices of peyotism are explained in detail in
Woody, 394 P.2d at 816-18.
church to contribute dues of 150 peyote buttons each year, which
Plaintiffs have declined to pay.4
Plaintiffs claim that Native Americans also
traditionally consume cannabis, especially when peyote is in
FAC ¶¶ 23-25.
The only material in the record
regarding this alleged tradition is Plaintiffs’ own statement.
Nothing in the record suggests what qualifies Mooney to attest to
what “has been traditionally consumed.”
That is, he presumably
has no personal knowledge of practices preceding his own
existence and does not provide any admissible evidence on which
he bases this assertion.
Nor can the court tell the extent to
which Plaintiffs conform with traditional peyotist practices,5 or
who qualifies to be a Church member.
In his deposition, Mooney asserts that the Church has
“a specific set of religious beliefs,” but elaborates only by
saying that the religion’s purpose is “to help people regain
In 1984, the Fifth Circuit wrote the following regarding
the Native American Church: “The Native American Church admits to
membership only Indians and their spouses, whether Indian or not.
It has twenty-three chapters, and a membership variously
estimated as 250,000 to 400,000 persons.” Peyote Way Church of
God, Inc. v. Smith, 742 F.2d 193, 198 (5th Cir. 1984). This
appears to have been a reference to the Native American Church of
North America, not to Oklevueha.
“Despite the absence of recorded [peyotist] dogma, the
several tribes follow surprisingly similar ritual and theology;
the practices of Navajo members in Arizona practically parallel
those of adherents in California, Montana, Oklahoma, Wisconsin,
and Saskatchewan.” Woody, 394 P.2d at 817.
their relationship with God” and to use “the ceremonies to speak
directly with God.”
ECF No. 140-11 at 68.
Mooney explains the
“origin of [the] religion” by saying that it derives from
“ceremonies and sacraments throughout South, Central and North
Deposition of Mooney as Rule 30(b)(6) Church
representative at 59, ECF No. 135-4.
Mooney says that the Church
is “open to individuals regardless of their religious
affiliation” and that the use of cannabis can, for example, “help
[Christians] with their Christian practices.”
Mooney Depo. at
69, 71, ECF No. 135-5.
While Plaintiffs say that “[t]he primary purpose of
[their Church] is to administer Sacramental Ceremonies,” FAC
¶ Intro., nothing in the record explains what occurs at these
In his deposition, Mooney mentions “sweat lodge
ceremon[ies],” “peyote ceremon[ies],” breath ceremon[ies],” and
“pipe ceremon[ies],” but he does not describe what Church members
do at these events.
Mooney Depo. at 98, ECF No. 135-5.
also states that individuals can “do their own ceremony,” during
which they “can just be conscious with their medicine and . . .
have their prayer time.”
Id. at 183-184.
At most, the court has
before it a single page that Mooney says is the Church’s Code of
It describes the procedures to be followed by those
participating in a peyote ceremony.
See ECF No. 135-7.
claims that he is “free to write out [his] own code of ethics”
for the members of his Church.
ECF No. 140-12 at 23.6
Plaintiffs say that peyote is their primary sacrament,
and allege in the FAC that they have "full approval" from the
Government to use peyote.
FAC ¶ 42, ECF No. 26.
appear to believe this approval stems from their practice of an
"Indian Religion," as defined in 42 U.S.C. §1996a(c)(3).
Memorandum in Opposition at 3, ECF No. 140.
disputes that Plaintiffs' "practices . . . are actually tied to
the Native American Church" and therefore disputes Church
members' right under the law to consume peyote.
at 15, ECF No. 142.
In addition to peyote and cannabis, members of the
Church also consume numerous other substances, such as “Ayahuasca
. . . , Iboga, Kava, Psilocybin, San Pedro, Soma, Teonanacatyl,
Tsi-Ahga, and many others.”
FAC ¶ 25, ECF No. 26.
is a part of [the Church] uses [c]annabis during ceremonial
times, as well as on a daily basis as a sacrament during their
own personal prayer time.”
See Response to Interrogatory No. 2,
Mooney was deposed twice, once as a Church representative
under Rule 30(b)(6) of the Federal Rules of Civil Procedure. The
document in which Mooney says he could write his own code appears
to be an excerpt from his deposition, but because Plaintiffs have
attached it without a front page or sufficient other pages
providing context, there is no way to tell whether Mooney was
testifying as to his personal position and/or as a Rule 30(b)(6)
representative of the Church.
ECF No. 140-6.
Cannabis is also used for “lunar cycle sweats.”
These sweats occur twice a month “all around the Hawaiian
islands” and last about “three hours,” and “afterwards,
[participants] have a potluck where people bring . . . food.”
Mooney Depo. at 217, ECF No. 135-5.
Plaintiffs claim to “acquire their cannabis by
cultivating it or acquiring it from other churches, caregivers or
other state-sanctioned methods.”
FAC ¶¶ 37, 40, ECF No. 26.
Mooney says that he “possesses a State of Hawaii Department of
Public Safety Narcotics Enforcement Division Medical Marijuana
Registry Patient Identification Certificate” that “allows him to
acquire, possess, cultivate and consume cannabis without State
criminal penalty in the State of Hawaii.”
Id. ¶ 39.
appears that card expired in 2012, and Mooney does not have a
currently valid card.
Mooney Depo. at 192,
ECF No. 135-5.
Nothing in the record reveals how Mooney received such
accreditation in the first place, or whether marijuana possessed
or obtained for medical purposes is used for Church activities by
persons without medical problems.
In an apparent reference to medical marijuana,
Plaintiffs say that the cannabis used at the ceremonies is
brought by members who are “state card holders.”
Id. at 197.
they were to prevail in this lawsuit, Plaintiffs intend to
cultivate “church gardens to be able to provide [cannabis] to
[their] church members.”
Id. at 201.
However, Plaintiffs claim
not to “distribute” cannabis, in the sense that “when [members]
leave a ceremony, [they’re] not taking [cannabis] home.”
Rule 30(b)(6) Depo. at 112, ECF No. 135-4.
Plaintiffs also say
they disapprove of the recreational use of cannabis.
Id. at 152.
On March 22, 2010, Plaintiffs filed a First Amended
Complaint seeking a declaration of their right to possess and
distribute cannabis, and an injunction preventing the Government
from prosecuting Church members for their cannabis-related
The FAC also sought the return of or compensation
for cannabis that the Government had seized from material shipped
See ECF No. 26.
On June 22, 2010, the court dismissed Plaintiffs’
“preenforcement claims,” i.e., claims that their rights were
being violated even though no drug charges against Plaintiffs had
The court ruled that those claims were not ripe and
dismissed the tort claims against Defendants for theft and
conversion of Plaintiffs’ cannabis, citing the Supremacy Clause.
See ECF No. 34; 719 F. Supp. 2d 1217 (D. Haw. 2010).
26, 2010, the court dismissed the remaining claim for the return
of or compensation for the seized cannabis.
See ECF No. 48; 2010
WL 4386737 (D. Haw. Oct. 26, 2010).
On April 9, 2012, the Ninth Circuit held that
Plaintiffs’ preenforcement claims were ripe given the
Government’s prior seizure of cannabis that had been sent to
The Ninth Circuit remanded those claims.
the Ninth Circuit affirmed this court’s decision concerning the
tort claims and the claim for the return of or compensation for
the seized cannabis.
See ECF No. 58; 676 F.3d 829 (9th Cir.
On July 13, 2012, Defendants moved to dismiss all
See ECF No. 63.
The court granted the
Government’s motion with respect to claims arising under the
First Amendment’s Free Exercise Clause, the Fifth Amendment’s
Equal Protection Clause, and the American Indian Religious
See ECF No. 85.
The court also granted the
Government’s motion with respect to RFRA claims that related to
cannabis that was not used in the exercise of Plaintiffs’
However, with respect to Plaintiffs’ claimed use of
cannabis in the exercise of their religion, the court denied the
Noting that all that was required at
the motion to dismiss stage was “sufficient factual allegation of
 a burden” on Plaintiffs’ exercise of religion, the court held
that Plaintiffs stated a claim under RFRA.
In preparation for the hearing on the present summary
judgment motion, this court issued a list of specific questions
and asked the attorneys to attend the hearing prepared to address
The hearing focused on the parties’ responses to those
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a).
See Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000).
The movants must support their position
that a material fact is or is not genuinely disputed by either
“citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for the purposes of the motion only), admissions, interrogatory
answers, or other materials”; or “showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c).
the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.
See id. at 323.
The burden initially falls on
the moving party to identify for the court those “portions of the
materials on file that it believes demonstrate the absence of any
genuine issue of material fact.”
T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987)
(citing Celotex Corp., 477 U.S. at 323).
“When the moving party
has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to
the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.
T.W. Elec. Serv., 809 F.2d at 631.
Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.
When “direct evidence”
produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
RFRA “suspends generally applicable federal laws that
substantially burden a person's exercise of religion unless the
laws are the least restrictive means of furthering [a] compelling
United States v. Antoine, 318 F.3d 919,
920 (9th Cir. 2003) (internal quotation omitted).
requires a two-step analysis.
First, “[a] claimant under the Act
must  establish a prima facie case by showing that the
government action at issue works a substantial burden on his
ability to freely practice his religion.”
United States v.
Lafley, 656 F.3d 936, 939 (9th Cir. 2011).
Second, if the
claimant meets its prima facie burden, a court must ask whether
the government’s regulation “‘is in furtherance of a compelling
governmental interest’ and is implemented by the ‘least
restrictive means.’” Id. (quoting 42 U.S.C. § 2000bb-1).
While the Government might be able to prevail in this
case based on the second step,7 “it is not required to [do so]
unless the plaintiff[s] first prove [their prima facie case].”
Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1069 (9th Cir.
“To establish a prima facie RFRA claim, a plaintiff must
present evidence sufficient to allow a trier of fact rationally
to find the existence of two elements.”
Id. at 1068.
plaintiff must show that “the activities the plaintiff claims are
burdened by the government action [are] an ‘exercise of
Second, the plaintiff must show that “the
government action  ‘substantially burden[s]’ [that] exercise of
The Government might possibly be able to show, for
instance, that controlling marijuana distribution is a bigger and
more complicated problem than controlling peyote distribution.
See United States v. Lepp, 446 F. App'x 44, 46 (9th Cir. 2011)
(“Applying the criminal laws prohibiting possession and
manufacture of marijuana to Lepp is the least restrictive means
of furthering the government's compelling interest in preventing
diversion of sacramental marijuana to nonreligious users.”);
Multi-Denominational Ministry of Cannabis & Rastafari, Inc. v.
Holder, 365 F. App'x 817, 820 (9th Cir. 2010) (“We have clearly
indicated that RFRA does not permit the unlimited production or
distribution of marijuana.”).
Plaintiffs here do not present sufficient
evidence as to either element.
A Reasonable Juror Could Not Conclude Based on the
Evidence in the Record that Plaintiffs’ Cannabis
Use is an Exercise of Religion.
RFRA inherently requires the federal courts to engage
in the “notoriously difficult, if not impossible, task” of
determining whether a particular practice is “religious.”
Alvarado v. City of San Jose, 94 F.3d 1223, 1227 (9th Cir. 1996).
While such a determination undoubtedly “presents a most delicate
question, the very concept of ordered liberty precludes allowing
every person to make his own standards on matters of conduct in
which society as a whole has important interests.”
Bradley, 590 F.2d 294, 295 (9th Cir. 1979).
Thus, to get a RFRA
exemption from federal drug laws, an individual must do more than
simply assert that those laws burden his exercise of religion.
The Government argues that this court must look to
“three useful indicia” of whether a belief system is religious,
in keeping with Alvarado v. City of San Jose, 94 F.3d 1223 (9th
In Alvarado, the Ninth Circuit said:
First, a religion addresses fundamental and ultimate
questions having to do with deep and imponderable
matters. Second, a religion is comprehensive in
nature; it consists of a belief-system as opposed to
an isolated teaching. Third, a religion often can be
recognized by the presence of certain formal and
Alvarado, 94 F.3d at 1229 (quoting Africa v. Pennsylvania, 662
F.2d 1025, 1032 (3d Cir. 1981)).
This court, however, cannot meaningfully address
whether Plaintiffs’ alleged religion conforms to these three or
any other characteristics, because Plaintiffs have given the
court almost no admissible evidence regarding their religion.
Plaintiffs’ own description of the exhibits it presents includes
Plant Biographies I Cannabis Sativa (p1antlives.com)
Sue Eland, 2008 (Exhibit 3); Ethnopharmacology and
Taxonomy of Mexican Psychodysleptic Plants, Jose Luis
Diaz, MD, Journal of Psychedelic Drugs, January-June
1979 (Exhibit 4); Hallucinogenic Plants of the
Tarahumana, Robert A Bye, Jr., Jomnal of
Ethnopharmacology, 1979 (Exhibit 5); The Ethnology of
Peyotism, Weston La Barre, January 2011 (Exhibit 6);
Cannabis: A History, Martin Booth, June 2005 (Exhibit
7); The Nectar of Delight The Early History of Cannabis
from Plants of the Gods, Richard Schultes & Albmi
Hofmann, 2001 (Exhibit 8); The Marijuana Conviction,
Richard J. Bonnie, 1999 (Exhibit 9).
Plaintiffs’ Concise Statement of Facts ¶ 1, ECF No. 140-1.
of the above exhibits appears to be admissible.
from books, magazines, and websites are presumably being offered
as factual proof for the statements contained within them, but
Plaintiffs fail to propose any exception to the hearsay rule
under which they could be admitted.
See Beyene v. Coleman Sec.
Servs., Inc., 854 F.2d 1179, 1181 (9th Cir. 1988) ("It is well
settled that only admissible evidence may be considered by the
trial court in ruling on a motion for summary judgment.").
any event, none of these exhibits says anything about whether
peyotism in the manner practiced by Plaintiffs is a religion,
whether Plaintiffs are true peyotists, or whether cannabis is an
important drug in peyotism.
Plaintiffs also submit a Department of Justice
memorandum sent to United States Attorneys that sets forth the
Government’s drug enforcement priorities (Exhibit 1), and
testimony by Deputy Attorney General James M. Cole before the
Senate Judiciary Committee, discussing that memorandum (Exhibit
Neither of those documents has anything to do with
The only other evidence presented by Plaintiffs in
their opposition are excerpts of Mooney’s deposition testimony
(Exhibits 10 and 11).
Also before the court is an affidavit that
Mooney submitted earlier in this litigation, and Plaintiffs’ FAC,
parts of which Mooney incorporated by reference into an affidavit
he submitted adopting the original Complaint.
concise statement of facts cites almost exclusively to the FAC
and to Mooney’s deposition testimony.
In other words, Plaintiffs
essentially rely on Mooney’s own proffers regarding his religion
in attempting to meet their summary judgment burden.
The Government, for its part, relies on excerpts from
Mooney’s depositions, Plaintiffs’ answers to certain
interrogatories, what appears to be part of the Church’s “Code of
Ethics,” Plaintiffs’ responses to the Government’s requests for
documents, and the Church’s articles of incorporation.
meaningful information regarding Plaintiffs’ religion in these
documents comes from Mooney.
Noting that the evidence in the record was
“extraordinarily scant,” the court asked the parties to come to
the hearing on the present motion prepared to direct the court to
evidence in the record regarding the Church’s beliefs and
practices, Plaintiffs’ relation to the broader Native American
Church, and the importance of cannabis to Plaintiffs’ alleged
ECF No. 144.
At the hearing, Plaintiffs’ counsel
relied almost exclusively on Mooney’s proffers and on evidence
that the court cannot locate in the record or that was never
mentioned in either party’s concise statement of facts.
Local Rule 56.1(f) (“When resolving motions for summary judgment,
the court shall have no independent duty to search and consider
any part of the court record not otherwise referenced in the
separate concise statement of the parties.”).
See also Carmen v.
San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.
2001) (holding that a district court is not required at the
summary judgment stage “to search the entire record, [when] the
adverse party's response does not set out the specific facts or
disclose where in the record the evidence  can be found”).
A reasonable juror could not conclude from this record
that Plaintiffs’ cannabis use is a religious practice.
there is simply not enough evidence in the record to separate
Plaintiffs’ use of cannabis from any other entity or individual’s
nonreligious use of cannabis.
To justify the Church’s allegedly
protected status, Plaintiffs could, for example, have introduced
evidence from an expert regarding the relationship between
Plaintiffs’ Church and a Native American Church that has been
accorded protection, or the importance of marijuana to peyotists.
At the very least, Plaintiffs could have introduced declarations
from other members of Mooney’s Church, or the Native American
Church of North America, or, indeed, anyone familiar with
As the “founder” and “spiritual leader” of Oklevueha,
Mooney appears to be someone “with personal knowledge and other
cognizable and significantly probative evidence” about the
See United States v. Shumway, 199 F.3d 1093, 1104 (9th
However, in relying almost entirely on Mooney’s
proffers, Plaintiffs ask this court “to find a genuine issue [of
material fact] where the only evidence presented is
uncorroborated and self-serving testimony.”
See Villiarimo v.
Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).
Even if Mooney’s own statements could suffice to
establish the existence of a religion, they do not do so because
they are inscrutable.
Nothing in those statements allows a juror
to understand the beliefs, tenets, or practices of the Church.
Instead of being presented with a set of facts from which they
could determine whether the Church is a religion, jurors would be
presented only with Mooney’s own conclusion that it is a
religion, without any basis on which to accept or reject that
See Hansen v. United States, 7 F.3d 137, 138 (9th
Cir. 1993) (“When the nonmoving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.”).
See also Head v. Glacier Nw. Inc.,
413 F.3d 1053, 1059 (9th Cir. 2005) (discussing “longstanding
precedent that conclusory declarations are insufficient to raise
a question of material fact”).
The court recognizes, of course, that Rule 702 of the
Federal Rules of Evidence permits testimony by a witness “who is
qualified as an expert by knowledge, skill, experience, training,
Mooney says nothing about his skill, experience,
training, or education, but, as the founder of the Church, he may
have specialized knowledge about Church tenets.
The problem for
the court is that any knowledge of those tenets remains locked
It cannot be the case that an individual becomes
an expert for RFRA purposes by founding a church while keeping
church doctrine mysterious or secret and simply declaring that
what he practices is a religion.
That is not an opinion by an
expert that any factfinder could rely on.
Without analysis or
supporting material, such a declaration is not admissible under
even the most liberal exercise of this court's function as the
gatekeeper of admissible evidence.
See Kumho Ture Co. v.
Carmichael, 526 U.S. 137, 147-53 (1999); Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
The court does
have Mooney’s statement that he could, if he so desired, change
the Code of Ethics.
This is a statement concerning Mooney’s
authority, not a statement that allows the court to identify a
triable issue as to whether Plaintiffs’ peyote ceremony or
anything else Plaintiffs do or believe in could be defined as a
At the outset, this court notes that the inclusion of
the words “Native American Church” in the Church’s name and
Mooney’s own description of himself as Seminole do not suffice to
automatically protect Plaintiffs’ use of cannabis.
does not support the inference that Plaintiffs have a connection
with any other organization, except for Mooney’s father’s church,
or that, despite the references in their arguments to peyotism,
they actually practice peyotism.
There is no admissible evidence
in the record that any Native American besides Mooney and
possibly his father treat cannabis use as integral to any
That is, while other courts have recognized the
importance of peyote in Native American religious ceremonies,
this court lacks a record as to cannabis use that comes anywhere
close to what those other courts had as to peyote use.
e.g., Woody, 394 P.2d at 816-818 (describing peyote rituals and
the belief that peyote “embodies the Holy Spirit”).
What this court has instead are Mooney’s vague
A few examples will illustrate the confusing nature
of what Plaintiffs submit establishes their right under RFRA to
For instance, when asked whether the Church
“require[s] that individual participants adhere to a specific set
of religious beliefs,” Mooney responds:
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.”
Mooney’s deposition excerpts are frustratingly incomplete.
For example in Exhibit 11 to his opposition, Mooney is asked
whether it would be wrong “for another Oklevueha branch not to
embrace cannabis.” He responds by asking whether he should state
“my opinion or the Church’s opinion,” suggesting that his
opinions may not reflect Church orthodoxy. ECF No. 140-12, at
70. Unfortunately, the excerpt does not continue on to the next
deposition page. Exhibit 10 to Mooney’s opposition similarly
ends with the suggestion that “sacraments” and “medicine” include
a host of substances including sage, cedar, and “everything.”
But the excerpt ends at page 197, leaving the response
tantalizingly incomplete. ECF No. 140-11. (The Government
includes page 197 in Exhibit 2 to its moving papers, similarly
without page 198.)
ECF No. 140-12, at 68.
Later Mooney is asked if there is a
difference between a “religious” and a “spiritual” organization,
to which he responds, “Organization to me is religion.
it’s a spiritual organization, that is a religion.”
at 76, ECF No. 135-5.
Then he says, “[O]rganized religion is–-
is–-it’s a community.
It’s–-we help each other, you know.
You know, it’s–-it’s not just spiritual.
seriously, we help each other in society and humanity.
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 77.
Statements like these are not isolated generalities;
they are indicative of the way Mooney articulates the content of
what he says his religious beliefs are.
In short, when this court looks for evidence supporting
the conclusion in paragraph 33 of the FAC that the Church’s “use
of cannabis is embedded within a set of deeply rooted and sincere
religious beliefs and traditions,” the court finds such evidence
The record as to what those “religious beliefs and
traditions” are is extremely thin.
This court has examined cases
discussing the use of peyote in Native American religion and has
attempted to substitute cannabis using the same analysis.
Whether such substitution is permitted, as well as what beliefs
and traditions surround that substitution, is unclear on the
What Mooney believes remains elusive, and this
court has no evidence at all of any cannabis tradition.
Similar confusion abounds when Mooney discusses his
Mooney states at one point that ceremonies
are only open to “members” of the Church, but then says “[w]ell
if you made it to the ceremony . . . you’re participating in the
ceremony, you’re a member in that sense.”
Id. at 137.
asked if one becomes a member “by merely showing up,”
responds “[w]hen they participate in the ceremony, they are a
Id. at 138.
At that point in the deposition, Mooney’s
counsel interrupts and says to the Government’s attorney that the
ceremonies are “only publicized to within the church.
you going to find out, my friend?”
Mooney acknowledges that
his counsel is “speaking the truth,” but then reiterates “we’re
open to anybody and everybody to come.” Id. at 138-39.
then notes, “I mean, how are you–-I don’t foresee you making it
to the ceremonial grounds, you know.
don’t see happening there, you know.”
The law of attraction, I
Id. at 138.
Government’s attorney asks Mooney once again whether “anyone who
shows up and participates becomes a member of the church?”
Mooney answers “yes,” but then launches into a nonresponsive
exposition of the “life-changing” nature of the ceremonies.
Whether the attorneys continued this exchange is unclear because
the excerpt does not continue onto the next deposition page.
In yet another confusing discussion, Mooney is asked
whether his church is “a branch of a larger . . . church.”
Mooney replies that his church is a branch of “Oklevueha Earth
Walks of Utah, Inc,” which is an organization run by Mooney’s
ECF No. 140-12 at 23.
When asked if the Utah
organization is a “parent organization,” however, Mooney replies
“I mean, I don’t know if I would call it that.
You know, I’m
free to write out my own code of ethics, even though I believe
[that] the code of ethics that ha[s] been put out [is] rather
Mooney describes the Utah Church as the “mother
church” and says “[a]s long as we’re honoring the church that
we’ve been–-you know, that I’ve been blessed with the code–-their
Code of Ethics.
As long as I’m honoring the mother church,
it’s–-yeah I can modify [my] branch’s Code of Ethics.”9
Depo. at 93, ECF No. 135-5.
At another point in his deposition,
Mooney says that one can “go on the [Utah church’s] website and
The only "religious" text Mooney refers to at any point
appears to be this "Code of Ethics," which the Government
attaches to its moving papers as an untitled Exhibit 4. Despite
Mooney’s recurrent references to this Code, it does not explain
the tenets of his alleged religion, other than to set forth a set
of “responsibilities” that “participants” and “leaders” in the
“Sacramental Ceremonies” must take on. These 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.” ECF No. 135-7. In some ways, this document
appears to be more concerned with liability issues than religious
actually get listed with the head mother branch as a member of
the Native American Church of Hawaii.” Id. at 132.
“what type of access [he has] to the mother branch’s list [of
members],” however, Mooney replies that he “doesn’t have any.”
This leaves unclear any doctrinal or other connection
between Mooney’s church and the Utah church.
The preceding examples demonstrate the basic problems
with the record presented to the court.
Crucial topics are
repeatedly left unaddressed by Mooney’s statements, and Mooney’s
statements are often muddled, contradictory and confusing.
What is before the court is a depiction of Plaintiffs’
alleged religion that is insufficient to allow a jury to
determine that it conforms to the Alvarado or any other factors.
Even if a jury could undertake an Alvarado analysis or conduct
some other evaluation based on what is before the court, a jury
could not reasonably conclude from the sparse record presented
here that Plaintiffs’ belief system actually constitutes a
The record provides no evidence that the Church
“addresses fundamental and ultimate questions having to do with
deep and imponderable matters[,] . . . is comprehensive in
nature[,] . . . or can be recognized by the presence of certain
formal and external signs.”
Alvarado, 94 F.3d at.
Alvarado’s list of characteristics is admittedly not definitive
or exhaustive, Alvarado clearly indicates that a religion should
encompass more than getting “high.”
This court is 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.
But this court does read the
governing law as requiring more than we-use-cannabis-to-feel-onewith-the-universe.
Such use might be beneficial, and the number
of states permitting such use may be about to grow substantially,
but what the court has before it is a claim based on religious
No reasonable juror could infer, from what is presently
in the record, that Mooney’s religion is anything more than a
strongly held belief in the importance or benefits of marijuana.
Even if this belief is sincerely held, and even if marijuana use
is indeed beneficial, the court cannot conclude from the record
that a reasonable juror could find that Plaintiffs’ belief is
religious in nature.
Plaintiffs do not meet their burden of providing
evidence sufficient for a juror to reasonably conclude that
Plaintiffs use cannabis for religious purposes.
their practice religious, call themselves peyotists, have
included “Native American Church” in their name, and are led by
Mooney, a Native American.
They declare that they are allowed by
law to use peyote and should similarly be allowed by law to use
The crux of the problem for this court is that
Plaintiffs’ underlying declaration of a right to use peyote, even
if true, is not supported by admissible evidence in the record.
The court therefore cannot legitimately draw an analogy to
A Reasonable Juror Could Not Conclude Based on the
Evidence in the Record that Prohibiting Cannabis
Use Or Distribution Places a Substantial Burden on
Plaintiffs’ Alleged Religion.
Even if the evidence in the record did support the
existence of a religion, Plaintiffs also fail to provide
sufficient evidence regarding the second element of RFRA’s prima
A reasonable juror could not conclude that the
prohibition on cannabis constitutes a substantial burden on
Plaintiffs’ alleged religion.
“A statute burdens the free
exercise of religion if it puts substantial pressure on an
adherent to modify his behavior and to violate his beliefs,
including when, if enforced, it results in the choice to the
individual of either abandoning his religious principle or facing
Guam v. Guerrero, 290 F.3d 1210, 1222 (9th
Cir. 2002) (internal quoatation omitted).
The law is clear that
“[a] substantial burden must be more than an inconvenience.”
On the present record, there is no evidence to suggest
that the prohibition on cannabis places Plaintiffs in the dilemma
RFRA was designed to avoid.
Mooney himself describes peyote as
his religion’s “primary sacrament,” and lists a litany of other
drugs his Church members use.
Nothing in the record explains why
relying on these other drugs instead of cannabis would be more
than an inconvenience for Plaintiffs.
"[T]he overriding [reason]
that peyote is essential and central to the [Native American
Church] is that without peyote their religion would not exist."
Peyote Way Church of God, Inc. v. Smith, 742 F.2d at 200-01.
Nothing suggests that Mooney’s Church cannot exist without
Plaintiffs simply do not explain what makes cannabis
unique or essential to the exercise of their alleged religion.
While 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.
Even if cannabis is a
religiously acceptable substitute for peyote, why it is the only
Indeed, under their asserted rationale,
nothing would preclude Plaintiffs from deeming other substances
to be essential to their religion and demanding further exemption
from the CSA.
This court concludes that the record does not support
the reasonable inference that Plaintiffs’ religion is
substantially burdened by any limitation on marijuana use.
While RFRA most certainly protects the free exercise of
religion, it does not protect individuals just because it is
difficult to precisely define religion.
That is, RFRA was not
intended to shield quasi-religious entities created solely to
circumvent federal law.
See, e.g., United States v. Meyers, 95
F.3d 1475 (10th Cir. 1996).
At first blush, given Mooney’s
Native American heritage and the Church’s name, Plaintiffs might
appear to fall within the protections afforded Native American
But the court, despite seeking evidence linking
Plaintiffs’ cannabis use to a Native American religion, finds
nothing in the record actually providing such a link.
That is not to say that Plaintiffs do not actually
require cannabis in their religion.
The court holds only that
the present record does not allow the conclusion that Plaintiffs
require cannabis to practice any religion or that their purported
religion is substantially burdened by enforcement of the CSA.
See, e.g, PLANS Inc. v. Sacramento City Unified Sch. Dist., 476
F. App'x 684, 685 (9th Cir. 2012) ("Although we express no view
as to whether [plaintiffs’ belief system] could be considered a
religion on the basis of a fuller or more complete record, the
record as it is before us is simply too thin to sustain that
The Government has shown “that the nonmoving party
d[oes] not have enough evidence to carry its ultimate burden of
persuasion at trial.”
Nissan Fire & Marine Ins. Co., Ltd. v.
Fritz Companies, Inc., 210 F.3d 1099, 1104 (9th Cir. 2000).
After an opportunity to conduct discovery, Plaintiffs have not
provided evidence from which a reasonable juror could conclude
that Plaintiffs’ religion has been or will be substantially
As a result, there is no need for the court to address
whether the Government’s prohibition on cannabis either serves a
compelling interest or is the least restrictive means of
furthering that interest.
The court grants summary judgment in
favor of the Government on Plaintiffs’ RFRA claim (Count 1).
The Clerk of Court is directed to enter judgment for
Defendants and to close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 31, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Oklevueha Native Am. Chuch v. Holder; Civil No. 09-00336 SOM/BMK; ORDER GRANTING
MOTION FOR SUMMARY JUDGMENT
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