Arizona Yage Assembly v. Garland

• Court: District Court, D. Arizona
• Decided: May 4, 2023
• Docket: 2:20-cv-02373
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Arizona Yage Assembly, et al., No. CV-20-02373-PHX-ROS

10 Plaintiffs, ORDER

11 v.

12 Merrick B. Garland, et al.,

13 Defendants. 14 15 Plaintiffs Arizona Yage Assembly (“AYA”) and Winfield Scott Stanley III 16 (“Stanley”), AYA’s Founder and Director, have filed a Fifth Amended Complaint alleging 17 claims against Merrick Garland, the United States Attorney General, Anne Milgram, the 18 Administrator of the Drug Enforcement Agency (“DEA”), Alejandro Mayorkas, the 19 Secretary of the Department of Homeland Security (“DHS”), and Chris Magnus, the 20 Commissioner for U.S. Customs and Border Protection (“CBP”) (collectively, “the Agency 21 Defendants”) in their official capacities. That complaint alleges sufficient facts to establish 22 standing as well as sufficient facts establishing a burden on Plaintiffs’ religious practices. 23 Therefore, the motion to dismiss will denied. 24 FACTUAL BACKGROUND 25 AYA describes itself as a “Visionary Church”; church members allegedly use and 26 share ayahuasca as part of their religious ceremonies. (Doc. 159 at ¶ 8). Ayahuasca is a tea 27 brewed from plants containing a hallucinogenic compound, dimethyltryptamine (“DMT”). 28 (Id.) DMT is listed as a Schedule I controlled substance under the Controlled Substances 1 Act (“CSA”). 2 Plaintiffs allege four shipments of ayahuasca from Peru to AYA have been seized 3 by the federal government between April and December 2020. (Doc. 159 at ¶¶ 41, 42, 45, 4 and 46). Plaintiffs additionally allege that AYA currently holds bi-monthly ayahuasca 5 ceremonies within the District of Arizona, that it plans to continue to hold bi-monthly 6 meetings for the foreseeable future, and that it will continue importing ayahuasca for that 7 purpose. (Doc. 159 at ¶¶ 70-73). 8 Although a DEA guidance document (“the Guidance”) first promulgated in 2009 9 established a procedure for seeking religious exemptions from the CSA, see U.S. Dep’t of 10 Just., Guidance Regarding Petitions for Religious Exemption from the Controlled 11 Substances Act Pursuant to the Religious Freedom Restoration Act, Plaintiffs have not 12 sought an exemption. (See Doc. 159 at ¶ 68). Plaintiffs allege they declined to seek an 13 exemption because the “Guidance imposes substantial burdens on Plaintiffs, such as 14 requiring applicants to disclose inculpatory information and incur significant financial 15 costs before filing a petition.” (Id.) Plaintiffs additionally allege the Guidance is a “sham” 16 because the “DEA has never granted an exemption under the Guidance.” (Id.) 17 PROCEDURAL BACKGROUND 18 This case has shifted form over the course of five amended complaints, and the 19 parties are familiar with the case history. (See Doc. 153 at 1-3). Initially, Plaintiffs Clay 20 Villanueva,1 Arizona Yage Assembly, North American Association of Visionary 21 Churches, and the Vine of Light Church brought this action against a variety of state and 22 federal government officials and entities seeking monetary, injunctive, and declaratory 23 relief. (Doc. 109 at 87-94). Plaintiffs brought claims against the Agency Defendants (the 24 Attorney General, DEA, DHS, and CBP) in their official capacities under the Religious 25 Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq.; claims against the United 26 States and DEA under the Administrative Procedure Act (“APA”), 5 U.S.C. § 500, et seq.; 27 claims against a DEA agent under 42 U.S.C. § 1983; and claims against state entities and

28 1 Plaintiff Clay Villanueva was voluntarily dismissed on June 2, 2022. (Doc. 161). Plaintiff Wilfred Scott Stanley III joined the Fifth Amended Complaint. (Doc. 159). 1 personnel under § 1983 and state laws. (Doc. 109 at 43-87). 2 On March 30, 2022, the Court dismissed Plaintiffs’ Fourth Amended Complaint. 3 (Doc. 153). The Court granted Plaintiffs leave to amend only their RFRA and § 1983 4 claims against the Agency Defendants. (Doc. 153 at 23). A Fifth Amended Complaint, 5 brought only by AYA and Winfield Scott Stanley III, was filed on May 15, 2022, asserting 6 a RFRA claim and a claim for declaratory judgment against the Agency Defendants. (Doc. 7 159). Plaintiffs seek a declaration and injunction providing that their “importation[,] use, 8 possession, or transportation of Ayahuasca for bona fide religious use in Visionary 9 Communion is lawful ab initio, and not a violation of the CSA,” that the Agency 10 Defendants’ interpretation of the law as a complete ban against AYA’s importation and 11 sharing of Ayahuasca in Visionary Communion violates RFRA,” compelling the Agency 12 Defendants to grant AYA a religious exemption from the absolute prohibitions on 13 importing, sharing, and using Ayahuasca, and barring them from initiating any criminal 14 investigation. (Doc. 159 at p. 30-31). 15 The Agency Defendants filed a Motion to Dismiss the Fifth Amended Complaint 16 (Doc 175), arguing Plaintiffs do not have standing to bring their RFRA claim, and that they 17 have failed to state a RFRA claim. See Fed. R. Civ. P. 12(b)(6). 18 ANALYSIS 19 I. Motions to Dismiss 20 A pleading must contain a “short and plain statement of the claim showing that the 21 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a 22 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief 23 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell 24 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted)). “[W]here 25 the well-pleaded facts do not permit the court to infer more than the mere possibility of 26 misconduct, the complaint” has not adequately shown the pleader is entitled to relief. Id. 27 at 679. Although federal courts ruling on a motion to dismiss “must take all of the factual 28 allegations in the complaint as true, [they] ‘are not bound to accept as true a legal 1 conclusion couched as a factual allegation.’” Id. at 678 (quoting Twombly, 550 U.S. at 2 555). 3 II. Standing 4 The Agency Defendants first argue Plaintiffs’ RFRA claim should be dismissed for 5 lack of standing. (Doc. 175 at 12). For the reasons below, Defendants’ motion to dismiss 6 for lack of standing is denied. 7 Under Article III of the Constitution, a plaintiff only has standing if he can show (1) 8 an “injury in fact” that is “concrete and particularized” and “actual or imminent;” (2) that 9 the injury is “fairly traceable to the challenged action of the defendant;” and (3) that it is 10 “likely, as opposed to merely speculative, that the injury will be redressable by a favorable 11 decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotations 12 and citations omitted). In cases seeking prospective injunctive relief, “past wrongs do not 13 in themselves amount to that real and immediate threat of injury necessary to make out a 14 case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Rather, a 15 plaintiff’s “standing to seek the injunction requested depend[s] on whether he [is] likely to 16 suffer future injury.” Id. at 105. 17 To have standing to bring a pre-enforcement RFRA claim like Plaintiffs have 18 alleged here, the Ninth Circuit requires plaintiffs to allege a “genuine threat of imminent 19 prosecution.” Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 835 20 (9th Cir. 2012) (Oklevueha I) (quoting Thomas v. Anchorage Equal Rights Comm’n, 220 21 F.3d 1134, 1139 (9th Cir. 2000) (en banc)). This requires considering: “(1) whether the 22 plaintiffs have articulated a ‘concrete plan’ to violate the law in question; (2) whether the 23 government has communicated a specific warning or threat to initiate proceedings; and (3) 24 the history of past prosecution or enforcement under the statute.” Id. 25 The Agency Defendants argue Plaintiffs have failed to allege any genuine threat of 26 imminent prosecution, because they rely on claims of past harm, they have failed to allege 27 a particular or specific threat by Defendants to initiate proceedings, and they have failed to 28 allege any past federal prosecutions for ayahuasca use. Plaintiffs oppose each of those 1 arguments. 2 A. Concrete Plan 3 Defendants argue “neither the mere existence of a proscriptive statute nor a 4 generalized threat of prosecution” is sufficient to establish standing. Thomas, 220 F.3d at 5 1139. However, Plaintiffs may satisfy the “concrete plan” requirement where the plaintiff 6 “actually did violate [the law at issue] on a number of occasions,” and where they plan to 7 continue doing so. Oklevueha I, 676 F.3d at 836 (quoting Sacks v. Off. of Foreign Assets 8 Control, 466 F.3d 764, 773 (9th Cir. 2006)) (finding concrete plan existed where 9 “[p]laintiffs are currently violating and plan to continue to violate the CSA by purchasing 10 and consuming marijuana”). While the Court previously dismissed Plaintiffs’ RFRA 11 claims because of a failure to allege a concrete plan, the Fifth Amended Complaint 12 specifically alleges AYA “currently holds bi-monthly Ayahuasca ceremonies” and that it 13 “plans to continue to hold bi-monthly meetings . . . for the foreseeable future.” (Doc. 159 14 at ¶¶ 70-73) That is sufficient, taken as true, to allege a concrete plan to violate the CSA. 15 B. Future and Past Prosecutions 16 Defendants next argue that Plaintiffs have not alleged any specific warning or threat 17 by Defendants to initiate proceedings against Plaintiffs, nor have they alleged any past 18 federal prosecutions for violations of the CSA based on ayahuasca use. However, in 19 Oklevueha I, the Ninth Circuit held a plaintiff “need not allege a threat of future prosecution 20 because the statute has already been enforced against them.” 676 F.3d at 836. For the same 21 reasons, in that case there was no need to inquire into “the history of enforcement of the 22 statute,” under the third prong, because “the CSA has already been enforced against 23 Plaintiffs through the seizure of their [controlled substance].” Id. at 837. 24 Defendants argue the facts here differ from those in Oklevueha I. Defendants mainly 25 argue there was, in fact, no past enforcement of the CSA against Plaintiffs. Defendants 26 argue “CBP’s alleged border seizures cannot form the basis for a broad pre-enforcement 27 injunction against DEA and the CSA in toto because DEA has not ‘enforced’ these 28 provisions against Plaintiffs.” (Doc. 179 at 5). However, the CSA operates through 1 multiple agencies; as the Agency Defendants have argued, the DEA may grant permits for 2 importation of controlled substances, without which the CBP and/or DHS will seize 3 packages as a matter of course. (See Doc. 149 at 4). The Agency Defendants’ actions and 4 responsibilities are thus intertwined; the Defendant agencies cannot avoid accountability 5 for enforcing the CSA by claiming they enforce only one piece of it. 6 Moreover, just because DEA has not commenced a federal criminal prosecution 7 does not mean the CSA has not been enforced against Plaintiffs. Just as in Oklevueha I, 8 “[w]hen the government seized Plaintiffs’ [drugs] pursuant to the CSA, a definite and 9 concrete dispute regarding the lawfulness of that seizure came into existence.” 676 F.3d at 10 836. And here, Plaintiffs allege four separate seizures of ayahuasca shipments by DHS 11 between April and December 2020. (Doc. 159 at ¶¶ 41, 42, 45, and 46). Plaintiffs also 12 allege AUSA Kevin Hancock sent a letter in November 2020, in response to AYA’s 13 demand for release of their packages containing ayahuasca, stating that any future imports 14 of Schedule I controlled substances like ayahuasca will be seized and forfeited unless an 15 applicable permit for lawful importation has been issued.2 (See Doc. 177 at 12; Doc. 179 16 at 2). Those allegations are enough to establish that the CSA has already been enforced 17 against him and will continue to be enforced.3 18 Accordingly, Plaintiffs have alleged facts sufficient to demonstrate standing for 19 their RFRA claim. 20 C. DEA Exemption Process 21 The bulk of Defendants’ arguments stem from the fact that Plaintiffs have not sought

22 2 While Defendants argue this case is more like the facts in Thomas, 220 F.3d 1134, the Court disagrees. In Thomas, the plaintiffs were landlords and devout Christians who 23 believed an unmarried man should not cohabitate with an unmarried woman; they brought a pre-enforcement action to block applicability of a statute that made it unlawful to refuse 24 to rent a property to a person because of marital status. The Ninth Circuit held the plaintiffs did not have standing, because “[t]he asserted threat [of prosecution] is wholly contingent 25 upon the occurrence of unforeseeable events,” like an unmarried couple seeking to rent their property in the first place, so there was no realistic danger of injury as a result of the 26 statute. Id. at 1141. Here, by contrast, Plaintiffs have already had multiple shipments of ayahuasca seized pursuant to the CSA. The harm is nowhere near as speculative as it was 27 in Thomas. 3 The allegations made about Agent Smyrnos threatening a member of AYA with felony 28 drug prosecution after seizing packages containing mescaline, another controlled substance, do not necessarily impact this analysis. 1 an exemption from the applicability of the CSA. The DEA promulgated the “Guidance” in 2 2009 in response to the Supreme Court’s ruling in Gonzales v. O Centro Espirita 3 Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). However, in 2012 the Ninth Circuit 4 addressed a similar argument as Defendants make here, and the court refused “to read an 5 exhaustion requirement into RFRA where the statute contains no such condition.” 6 Oklevueha I, 676 F.3d at 838 (stating that “the Supreme Court has reviewed a RFRA-based 7 challenge to the CSA without requiring that the plaintiffs first seek a religious use 8 exemption from the DEA”) (citing O Centro, 546 U.S. 418). Both the Supreme Court and 9 the Ninth Circuit have recognized that RFRA “plainly contemplates that courts would 10 recognize exceptions [to the CSA]—that is how the law works.” Id. (quoting O Centro, 11 546 U.S. at 434). 12 The Court will not depart from that clear precedent. Accordingly, the Defendants’ 13 alternative request that the Court stay the case to allow Plaintiffs to apply for an exemption 14 is denied. 15 D. Associational Standing 16 Lastly, Defendants argue AYA has no associational standing to bring claims on 17 behalf of AYA’s members. 18 A plaintiff organization may bring suit on its members’ behalf when: “(a) its 19 members would otherwise have standing to sue in their own right; (b) the interests it seeks 20 to protect are germane to the organization’s purpose;4 and (c) neither the claim asserted nor 21 the relief requested requires the participation of individual members in the lawsuit.” Hunt 22 v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). 23 Defendants first argue Plaintiffs have failed to allege any AYA member has suffered 24 an injury sufficient to establish they would have standing to sue in their own right. 25 However, Plaintiffs have alleged ayahuasca is a central component of AYA members’ 26 religion (see Doc. 159 at ¶¶ 34-36), and that if ayahuasca shipments continue to be seized, 27 their members will be unable to practice their religion (see Doc. 159 at ¶ 47). Defendants

28 4 Defendants do not dispute this prong, so the Court will assume AYA has met the requirement. 1 also argue that individual members must participate in the litigation, destroying AYA’s 2 associational standing. However, the Ninth Circuit in Oklevueha answered this question on 3 closely related facts, and held that “it can reasonably be supposed that the [AYA’s 4 prospective relief], if granted, will inure to the benefit of those members of the association 5 actually injured.” 676 F.3d at 839 (quoting Warth v. Sedlin, 422 U.S. 490, 515 (1975)). 6 There is no need for the kind of individualized inquiry Defendants suggest. 7 Accordingly, Plaintiffs have alleged facts sufficient to support standing. 8 Defendants’ motion to dismiss for lack of standing is denied.5 9 III. Failure to State a Claim (FRCP 12(b)(6)) 10 RFRA provides that the government “shall not substantially burden a person’s 11 exercise of religion” unless the government “demonstrates that application of the burden 12 to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the 13 least restrictive means of furthering that compelling governmental interest.” 42 U.S.C. §§ 14 2000bb-1(a)-(b). To state a claim under RFRA, a plaintiff must allege facts sufficient to 15 show that “application of the [CSA] would (1) substantially burden (2) a sincere (3) 16 religious exercise.” O Centro, 546 U.S. at 428. 17 Defendants only obliquely challenge Plaintiffs’ assertion that ayahuasca use is a 18 sincere religious exercise for its members. (Reply at 8-9). Defendants claim Plaintiffs are 19 trying to rely on a categorial allegation that ayahuasca is always religious, instead of 20 individualized allegations about personal religious beliefs. (Id.) But Plaintiffs have alleged 21 “[d]rinking sacramental Ayahuasca is the central communion ceremony of AYA where 22 congregants receive the transmission of wisdom and Divine Love that comes through 23 sacramental use of Ayahuasca. Without Ayahuasca, AYA does not have a religious 24 practice to share, and AYA congregants are unable to practice their religion.” (Doc. 159 at 25 ¶ 9). Plaintiffs have alleged particular facts about the ayahuasca religious ceremonies 26 AYA’s members attend. (Doc. 159 at ¶¶ 31-36). And Plaintiffs have also alleged that it 27 plans to serve ayahuasca to its members in religious ceremonies despite the possibility that

28 5 Defendants’ footnoted argument that Plaintiffs similarly lack standing for their declaratory relief claim is denied for the same reasons. (See Doc. 175 at 12, n.7). 1 Defendants may enforce the CSA against them. (Doc. 159 at ¶¶ 70-73). Construed most 2 favorably to Plaintiffs, the Fifth Amended Complaint sufficiently alleges the sincerity of 3 Plaintiffs’ religious beliefs. 4 Plaintiffs have also alleged that they are “substantially burdened by the prohibitions 5 on manufacturing, distributing, or dispensing a controlled substance in [the CSA], and by 6 the prohibition on importation in [the CSA], that impose criminal penalties for violations.” 7 (Doc. 159 at ¶ 80). “A statute burdens the free exercise of religion if it puts substantial 8 pressure on an adherent to modify his behavior and to violate his beliefs, including when, 9 if enforced, it results in the choice to the individual of either abandoning his religious 10 principle or facing criminal prosecution.” Guam v. Guerrero, 290 F.3d 1210, 1222 (9th 11 Cir. 2002). Plaintiffs allege they are forced to choose between “either abandoning religious 12 principle or risking criminal prosecution.” (Doc. 159 at ¶¶ 81, 86). That is sufficient to state 13 a RFRA claim. See Oklevueha Native Am. Church of Haw., Inc. v. Lynch, 828 F.3d 1012, 14 1016 (9th Cir. 2016) (Oklevueha II) (reiterating “a substantial burden under RFRA exists 15 . . . only when individuals are . . . coerced to act contrary to their religious beliefs by the 16 threat of civil or criminal sanctions”) (citation omitted); Church of the Holy Light of the 17 Queen v. Mukasey, 615 F. Supp. 2d 1210, 1219 (D. Or. 2009), vacated on other grounds, 18 Church of Holy Light of Queen v. Holder, 443 F. App’x 302 (9th Cir. 2011) (finding that 19 prohibiting plaintiffs’ use of ayahuasca would substantially burden their exercise of 20 religion where the tea was the “sole means by which [they] are able to experience their 21 religion”) (citation omitted). 22 While Defendants try to re-cast Plaintiffs’ alleged “burden” as one imposed by the 23 DEA’s exemption process, that was not how Plaintiffs made their allegations in the Fifth 24 Amended Complaint.6 (See Doc. 175 at 19). Plaintiffs argue they are burdened by the 25 CSA’s complete ban on ayahuasca use and importation (Doc. 159 at ¶¶ 82-87), not by the 26 exemption process outlined by DEA’s Guidance. They have alleged multiple seizures of 27 6 Indeed, the Court previously dismissed Plaintiffs’ claim under the Administrative 28 Procedures Act that sought to challenge the DEA’s guidance for lack of standing. (Doc. 153 at 9). 1 || ayahuasca shipments, which interrupts their free exercise of religion because they cannot use the ayahuasca that has been seized. (Doc. 159 at ff 41-46, 51, 83). That is sufficient to 3 || state a claim under RFRA. 4 Accordingly, Defendants’ Motion to Dismiss the RFRA claim for failure to state a || claim is denied. 6 IT IS ORDERED Defendants’ Motion to Dismiss (Doc. 175) is DENIED. 7 Dated this 4th day of May, 2023. 8 fo . ° Honorable Roslyn ©. Silver 1 Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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