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September 25, 2002


The opinion of the court was delivered by: Thomas I. Vanaskie, Chief Judge


Plaintiff Dennis L. Black Hawk filed this civil rights action, alleging that his First Amendment right to free exercise of religion was violated when the Pennsylvania Game Commission refused to grant him an exemption to a permit fee requirement for the possession of two black bears. It is believed that the black bears are sacred and give spiritual strength to Black Hawk, a Native American considered to be a "holy man" who conducts spiritual ceremonies for other Native Americans on his property with the two black bears. Defendants are Vernon Ross, the Director of the Pennsylvania Game Commission, Thomas R. Littwin, Frederick Merluzzi, Barry Hambley, and David E. Overcash.*fn1 Currently pending are defendants' motion for summary judgment, and plaintiff's motion for partial summary judgment.

Because Frederick Merluzzi and Barry Hambley were not personally involved in the decision to deny Black Hawk a religious exemption, summary judgment shall be granted in favor of Merluzzi and Hambley as to all claims. Because the Pennsylvania Game Code contains individualized exemptions for secular purposes, but not religious ones, and defendants have not advanced a compelling reason to deny Black Hawk an exemption, summary judgment shall be granted to Black Hawk as to his claims for injunctive relief. Because Black Hawk's right to a religious exemption was not "clearly established" so that a reasonable person would know that denial of the exemption would violate the First Amendment Free Exercise clause, summary judgment is granted as to defendants' claim of qualified immunity from damages.


Dennis Black Hawk is a Native American of Lenape descent. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶ 1.)*fn2 He has been adopted by elders of the Pine Ridge Oglala Lakota tribe, from whom he learned traditional spiritual beliefs, and by a family of the Seneca tribe, who taught him the spiritual beliefs of the Haudenosaunee or Iroquo is Nations. (Id. at ¶¶ 6-8.) While on the Pine Ridge reservation in South Dakota, Black Hawk was "put on a path" to follow the "holy ways" and he is now considered a holy man by other Native Americans, able to communicate with Native American ancestors. (Id. at ¶¶ 15, 17-18.) He experienced recurring dreams about bears. The elders advised Black Hawk that this was a vision and that the people's spirituality would be lifted by the bears. (Id. at ¶ 22.) Therefore, Black Hawk acquired two black bears, Timber and Tundra, in 1994. These bears were blessed by the elders of the Lakota tribe and the Iroquois confederacies as spiritual helpers to Black Hawk and other Native Americans. (Id. at ¶¶ 23-25.)

In 1995, Black Hawk moved to Pennsylvania. He purchased 3.11 acres in Weatherly, Carbon County, Pennsylvania. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶¶ 1, 4.) Black Hawk's property contains a tipi that is used for prayer, an anipi lodge to cleanse the spirit, and a ceremonial burial ground. (Id. at ¶ 17; Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 9-11, 13.) Black Hawk conducts spiritual ceremonies on his property and Native Americans from across the country travel to Weatherly to participate in these ceremonies. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 14-15; Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 17.) The bears are an integral part of these ceremonies. Black Hawk and his fellow Native Americans believe that black bears are sacred because they protect the land and give spiritual strength in religious ceremonies when physically present. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 19-21; Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 18.) To this end, participants in these ceremonies interact with the bears and the hair shed by the bears is used in Native American medicine bags. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 28-29.) Because Black Hawk's bears were found to be spiritual helpers, removal of the bears would be akin to taking the sacraments from a church. (Id. at ¶ 31.)

In Pennsylvania, the Pennsylvania Game Code, 34 Pa. C.S. §§ 2901-2965, governs the possession of black bears and other wildlife. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 23.) The Code includes certain substantive requirements that must be met for the Pennsylvania Game Commission ("Commission") to issue a wildlife ownership permit. For example, the Commission required Black Hawk to build a cage of specific dimensions for the bears. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶ 49.) Black Hawk complied with all the Commission's standards and was issued a permit between 1995 and 1999. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 33.)

A disagreement arose, however, regarding the annual permit fee of $200. The Commission collects fees for the permits it issues under the Code. The money collected from these fees is used by the Commission in administering and enforcing its regulations relating to activities which are governed by special permits, such as inspecting the facilities of owners of wild animals to insure that they comply with Commission regulations. (Id. at ¶¶ 31-32.) The fees themselves make up less than one percent of the Commission's revenues, which were projected to be $61.1 million for the 1999-2000 fiscal year, and the Commission issued over 30,000 permits in 2000. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 56-58.)

There are statutory exemptions from the fee requirement. The Commission may waive a permit fee for hardship or extraordinary circumstances if consistent with sound game or wildlife management activities or the intent of the Game Code. 34 Pa. C.S. § 2901(d). Excluded from the permit fee by statute are public zoological gardens that receive government grants or appropriations, private zoological parks or gardens that are open to the public and that are accredited by the American Association of Zoological Parks, and nationally recognized circuses. 34 Pa. C.S. § 2965(a)(1)-(3). The Commission also does not charge a fee for educational exhibits of wildlife. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶¶ 39-45.)

When Black Hawk moved to Pennsylvania in 1995, he paid $50 for a "menagerie" permit. In 1997, Black Hawk was required to obtain an exotic wildlife dealer's permit because Fred Merluzzi, the wildlife conservation officer for the area, believed that Black Hawk intended to breed the bears and sell their cubs. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 34-35.) Black Hawk had difficulty paying the fee, and was allowed to pay in two installments of $100. (Id. at ¶ 35.) Afterwards, Black Hawk requested an exemption from payment of the permit fee on the ground that he possessed the bears for Native American religious purposes. (Pl. Stat. of Material Facts, Dkt. Entry 53, at ¶ 35.) Specifically, he asked Merluzzi about his entitlement to an exemption based on his status as a Native American. Merluzzi made an inquiry with the Bureau of Indian Affairs and was told that Native Americans who possess a B.I.A. identity card are entitled to certain exemptions under some federal statutes. Black Hawk does not possess such a card. Merluzzi informed Black Hawk of what he was told by the B.I.A. and did not forward Black Hawk's request to Harrisburg to be reviewed by the Commission's central office. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 36.) Black Hawk was also warned that if he did not pay the fee he could be prosecuted and the bears could be confiscated by the Game Commission. (Id.)

In 1998, Black Hawk informed Merluzzi that he was keeping the bears for religious purposes and that he was having financial difficulty paying the $200 permit renewal fee. Merluzzi told Black Hawk that Black Hawk would have to contact the Commission's central office in Harrisburg regarding his entitlement to an exemption from the permit fee requirement. Black Hawk again paid the permit fee. (Id. at ¶ 37.) In 1999, Black Hawk again told Merluzzi that he did not believe that he should have to pay the fee because of his Native American beliefs and because the fee would cause Black Hawk financial hardship. In August, Black Hawk wrote a letter to his state representative, Keith McCall, concerning this belief. This letter was forwarded to Vernon Ross, Executive Director of the Game Commission. (Id. at ¶¶ 38-39; Exhibit ¶ to Def. Motion for Summary Judgment, Dkt. Entry 51.) In addition, other Native Americans sent letters and electronic correspondence on Black Hawk's behalf to Ross and Thomas Littwin, Bureau of Law Enforcement. (Overcash Deposition, Exhibits 12-13; Dkt. Entry 52; Pl. Statement of Material Facts, Dkt. Entry 58, at ¶ 36.) Ross requested that Littwin respond to Black Hawk's request for an exemption. (Pl. Stat. of Material Facts, Dkt. Entry 58, at ¶ 91.)

Dave Overcash, the Director of the Commission's Technical Services Division, reviewed Black Hawk's application for a waiver and discussed the application with his supervisor, Littwin. (Id. at ¶¶ 85-86, 90, 98-99.) Black Hawk received a letter dated October 6, 1999, written by Overcash and signed by Littwin, informing Black Hawk that there was no exemption from the permit fee requirement for Native Americans. The letter informed Black Hawk that § 2901(d) of the Code provides for a waiver of the permit fee based on hardship when consistent with game or wildlife management activities.*fn3 The letter stated that Black Hawk would not qualify for this waiver. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 40.) The Commission considers the keeping of live animals in captivity as being inconsistent with sound game and wild life management, or the overall purpose of the Game Code. (Id. at ¶ 42.) The only exception is where an animal is kept in captivity with the intent of reintroducing those animals into the wild. Black Hawk's bears were declawed and kept in captivity for their entire lives. They could not be released into the wild. (Id. at ¶¶ 42-43.) Thus, in the Commission's view, Black Hawk would not be entitled to an exemption regardless of his financial circumstances. Black Hawk was informed that his "permit has been expired since June 30, 1999 and if you have not disposed of the bears, you are in violation of the Game and Wildlife Code since that date and you are subject to prosecution." (Overcash Deposition, Exhibit 7).

On November 24, 1999, Black Hawk, proceeding pro se, filed this action under 42 U.S.C. § 1983 alleging that his civil rights had been violated.*fn4 (Pl. Complaint, Dkt. Entry 1.) This Court issued a temporary restraining order on November 24, 1999, preventing the Game Commission from confiscating the bears pending the outcome of this suit.*fn5 (Dkt. Entry 5.) The Game Commission continued to pursue criminal proceedings. In February of 2000, a magistrate found Black Hawk guilty of the charges brought by the Game Commission. (Def. Stat. of Material Facts, Dkt. Entry 53, at ¶ 46.) Black Hawk filed an appeal to the Court of Common Pleas of Carbon County, which has stayed the prosecution pending the outcome of this case. (Id.)


A. Summary Judgment Standard

Summary judgments would be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if proof of its existence or non-existence might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Facts that could alter the outcome are material facts." Charlton v. Paramus Bd. of Educ., 25 F.3d 194, 19 7 (3d Cir.), cert. denied, 513 U.S. 1022 (1994). "Summary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Initially, the moving party must show the absence of a genuine issue concerning any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2 d 56, 59 (3d Cir. 1988); Continental Ins. Co. v. Bodie, 682 F.2d 436, 43 8 (3d Cir. 1982). Once the moving party has satisfied its burden, the nonmoving party "must present affirmative evidence to defeat a properly supported motion for summary judgment." Anderson, 477 U.S. at 256-57. Mere conclusory allegations or denials taken from the pleadings are insufficient to withstand a motion for summary judgment once the moving party has presented evidentiary materials. Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). Rule 56 requires the entry of summary judgment, after adequate time for discovery, where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

B. The First Amendment Claim

The Free Exercise Clause of the First Amendment, made applicable to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make no law . . . prohibiting the free exercise of religion." Prior to 1990, the U.S. Supreme Court had held that laws which substantially burden a religious practice must be justified by a compelling state interest. See, e.g., United States v. Lee, 455 U.S. 252, 257 (19 82) ("the state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding government interest"); Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 718 (1981) ("state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest"); Sherbert v. Verner, 374 U.S. 398, 402-03 (1963) (courts must consider whether there is some compelling state interest that justifies a substantial infringement of a First Amendment right).

In Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), the Court changed the standard for evaluating free exercise claims. In Smith, the issue before the Court was whether an Oregon statute criminalizing peyote use encompassed the use of peyote for religious purposes, thus permitting the state to deny unemployment benefits to a person dismissed from his or her job for such peyote use. Id. at 874. According to the Court, a State would be "`prohibiting the free exercise [of religion]' if it sought to ban [physical acts] only when they are engaged in for religious purposes, or only because of the religious belief that they display." Id. at 877. The Court declined to apply strict scrutiny, however, and held that the "[r]ight of free exercise does not relieve an individual of the obligation to comply with a `valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Id. at 879 (citing United States v. Lee, 455 U.S. 252 (1982)). In other words, courts will apply rational basis scrutiny to a neutral law of general applicability which incidentally burdens religious practice.

The Smith Court recognized only limited exceptions in which strict scrutiny might still apply. In particular, the Court distinguished the Sherbert line of cases by stating that the Sherbert balancing test was developed in a context of "individualized governmental assessment of the reasons for the relevant conduct." Id. at 884. Specifically, the Court stated that "where individualized exceptions from a general requirement are available, the government may not refuse to extend that system to cases of `religious hardship' without compelling reason." Id.; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 537 (1993); Bowen v. Roy, 476 U.S. 693, 708 (1986) (plurality opinion); Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3 d 359, 364 (3d Cir.), cert. denied, 528 U.S. 817 (1999).*fn6

The permit fee requirement appears at first glance to be a "neutral law[] of general applicability." Section 2901(d) of Title 34 of the Pennsylvania statutes, however, provides that the permit fee requirement may be waived "where hardship or extraordinary circumstance warrants" when it is "consistent with sound game or wildlife management activities or the intent of this act." This statute requires the director to evaluate the justification for the exemption on a case-by-case basis and appears to qualify as a "system of individualized exemptions." The Commission, in evaluating Black Hawk's request, would necessarily ...

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