Recent Developments in Church of the Eagle and Condor v. Garland (D. Ariz. April 22, 2024) and Church of the Celestial Heart v. Garland, (E.D. Cal. January 9, 2024)

Attorney Ronald W. McNutt, May 1, 2024.

The recent settlement announcement between the federal government and the Church of the Eagle and Condor, Church of the Eagle and the Condor v. Garland, 2:22-cv-01004, (D. Ariz.), is a hopeful sign commensurate with the auspicious prophesy in the name of the spiritual community. This settlement recognizes protection for their ceremonial practices with ayahuasca, which contains dimethyltryptamine (DMT), a controlled substance.

Another recent court decision, an order denying defense motions and upholding claims in Church of the Celestial Heart, also supports judicial determinations of claims asserting legal religious defenses and claims for relief under the Religious Freedom Restoration Act. This law was enacted to revive the free exercise of religion protections previously available under the First Amendment before the 1990 adverse decision in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990), when the Supreme Court refused to afford first amendment protection for use of peyote as a sacrament by members of the Native American Church.

In some previous cases, the Drug Enforcement Administration was asserting authority to weigh religious sincerity and decide whether ceremonial psychedelic religious organizations are entitled to protection under the Religious Freedom Restoration Act. Courts were deferring to factfinding determinations to the Drug Enforcement Administration.

Under the Religious Freedom Restoration Act, a prima facie showing that the federal government activity, applying the Controlled Substances Act to place a substantial burden on a sincere exercise of religion, shifts the burden of persuasion to the federal government to establish that its burdensome actions furthered a compelling interest in the least restrictive manner. Ceremonial, religious, and group plant medicine practice protections are entitled to judicial review under provisions of the Religious Freedom Restoration Act. Individuals and organizations “burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. §§ 2000bb-1(c). The judicial protection, as an affirmative claim or as a defense to federal government intrusion, protects a person or organization’s religious activity from being substantially burdened unless the government shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(a) and (b).

In Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006), the Court upheld the right of practitioners in the branch of the União do Vegetal church in New Mexico to use ayahuasca as a sacrament. The União do Vegetal church made a prima facie showing under the Religious Freedom Restoration Act standard that it was entitled to protection by demonstrating a substantial burden imposed by the federal government on a sincere exercise of religion. This shifted the burden of persuasion to the federal government to establish that its burdensome actions furthered a compelling interest in the least restrictive manner. The government did not challenge the sincerity of the religious practices, and instead focused on interests in promoting health and safety, and in preventing diversion. The Court held that the government had failed to meet its burden to demonstrate a compelling interest in applying the Controlled Substances Act to the sacramental use of ayahuasca under the circumstances of that case. Id. at 437–38.

The has been a great expansion of ayahuasca and psilocybin mushroom spiritual practices in the time since the O Centro Espirita Beneficente União do Vegetal decision. The opposition to legal protection by government authorities, the expense and stress of litigation, and the skepticism of the courts, has led a great majority of communities that consume plant medicines to operate without recognition rather than seek judicial recognition. To avoid prosecution, or succeed in establishing the right to worship with entheogenic plants, best practices to be observed include having a structure with appropriate leadership and education, adherence to guiding principles, an understanding of the worldview, teachings, or tenets of the community, practices that inspire reverence and respect for the medicine, its traditions, and other members, and upholding spiritual traditions. It is especially important to reduce risks and promote beneficial experience with preparation, careful administration, and integration of the experience with community support. It is beneficial to have organizational documents and protocols for abuses of power or other misconduct, to promote diversity, screening and support for health and mental health concerns.

Caselaw has imported a sincerity requirement, that the burden imposed be on a sincere religious exercise or practice, but in Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 725 (2014), the Supreme Court held that it is not the province of the courts to evaluate whether religious beliefs are mistaken or insubstantial. activity.

The Religious Freedom Restoration Act states that courts have the authority to perform the delicate balancing of interests with formal proof standards. In the Soul Quest Church of Mother Earth and Iowaska Church of Healing cases, the act of pursuing an administrative exemption with the Drug Enforcement Administration led reviewing courts to regard the agency as having the authority to make freedom of religion decisions, and that its findings are subject to limited review.

Some of the litigation shows authorities did not initiate or pursue prosecution in cases involving ceremonial experiences with ayahuasca. The Drug Enforcement Administration has minimized its role in law enforcement with respect to ayahuasca churches in cases such as Church of the Celestial Heart and cases discussed in that opinion. Despite a substantial number of border seizures of plant medicine materials, there were very few prosecutions following seizures and interception of plant medicine materials. The agency would provide information about the intended recipients and content to state prosecutors, who have tended to be disinterested in pursuing charges. Federal and state authorities have not appeared eager to bring many enforcement actions against churches with natural psychedelic sacraments.

The Drug Enforcement Administration has had a role in enforcement of the Controlled Substances Act, as well as an administrative role in determining whether claims of religious use of psychedelics are legitimate. It provides an on-line guidance first issued in 2009, and which was updated in 2020, titled, the Drug Enforcement Administration Diversion Control Division, “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act.” The Drug Enforcement Administration’s internal process for assessing the validity of religious claims include factors such as the risk of harm and the adequacy of safeguards to address concerns about diversion. Cases such as the Soul Quest and Iowaska Church of Healing cases, however, document long delays by the DEA for responding to applications for religious exemption. Litigants seeking protection have been averse to invoking the DEA administrative process.

The Drug Enforcement Administration, prior to the Church of the Eagle and Condor settlement, had only agreed to recognize bona fide ceremonial psychedelic practices, in both cases ayahuasca, after court intervention. In Church of the Holy Light of Queen v. Mukasey, two ayahuasca churches that are American branches of successors of the Santo Daime religion, the oldest of the Brazilian ayahuasca religions, were granted a permanent injunction by the district court that allowed them to import and use ayahuasca, called Daime by the churches. Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210, 1219 (D. Or. 2009), vacated sub nom. Church of Holy Light of Queen v. Holder, 443 F. App’x 302 (9th Cir. 2011) (to limit scope of injunction). The district court found that consuming ayahuasca tea is “an arduous path that is not suitable for most people,” and that the participants were screened to “select only those who are serious about the Santo Daime religion, and to turn away would-be recreational users or thrill-seekers.” Id. at 1216. The court also observed, “In Brazil, thousands of people consume hoasca or Daime tea several times each month. The government of Brazil would not allow the UDV and Santo Daime churches to operate if there was evidence that Daime tea or hoasca was killing church members.” Id. at 1218. The Ninth Circuit Court of Appeals upheld the injunction insofar as it enjoined the government from prohibiting the importation, storage, and use of their sacrament.

Compliance with exemptions from the Controlled Substances Act can be very burdensome, with measurements and recordkeeping to track material and safeguard the sacramental medicine, which can create unworkable or onerous restrictions on ceremonial practices. The Drug Enforcement Administration gave notice in June 2021 that it intended to adopt rules for procedures to determine religious exemptions. It has not followed through on its rulemaking to guide its consideration of Religious Freedom Restoration Act claims and defenses. There is a substantial legal issue whether it has authority to adopt such rules and the statutes vest the legal authority in the courts. The recent cases indicate that the DEA has created a complex regulatory process that advanced a prohibitionist approach that impaired the federally-protected right to religious protection with respect to religious experience with psychedelics.

The safety record of the Santo Daime and União do Vegetal traditions, the two largest churches in Brazil that worship with ayahuasca, helped earn protection in that county for ayahuasca for spiritual and ceremonial purposes. The two traditions combine elements that appear in different religions and influences, such as spiritism and Afro-Brazilian traditions, with elements of folk Catholicism, while emphasizing direct experience with the divine through ayahuasca. The traditions began in the early 1900s, and 1960, respectively, and have set religious beliefs with established leadership in boards with increasing authority over church matters, and a progression of responsibility among members. These traditions inspired branches in the United States which have earned egal protection. In Peru and other countries in the Amazon region, Indigenous worship, and ceremonial experience with ayahuasca extends for centuries, and the practices of have obtained cultural heritage protection. Many retreat centers in Peru have attracted people with varying religious perspectives who have experiences that offer direct spiritual experience.

Church of the Eagle and Condor

The Church of the Eagle and Condor is a church based in Phoenix, Arizona with leadership including Indigenous persons that practices worship with sacramental experience with ayahuasca. On April 22, 2024, it announced a settlement with federal defendants it had sued in 2021. The lawsuit concerned the religious liberty right to sacramental experience with ayahuasca. The willingness of the Drug Enforcement Administration to recognize protection for religious practices and experience with natural psychedelics is a significant milestone for recognizing, and encouraging, efforts of sincere religious practitioners to establish safer procedures to reduce the risk of danger from interactions with ayahuasca and promote best practices that promote beneficial experiences and positively-changed lives.

The church was incorporated with bylaws and a code of ethics and ceremonial guidelines. The church had continued to participate in its practices under the guidance of a highly trained ayahuasquero. The Church of the Eagle and Condor drew together among members inspired by the Shipibo ayahuasca medicine tradition of Peru that holds ayahuasca ceremony as an essential sacrament to draw together heart and wisdom traditions. Dr. Rodney Garcia, an anesthesiologist with the Veterans Administration in New Mexico, is a co-founder of the church. The church formed in 2018. At that time, Belinda Eriacho met Dr. Joe Tafur after his book had come out and he was moving back to Arizona. They serve on the church’s board of directors, along with Kewal Wright and Dr. Garcia.

Counsel who represented the Church of the Eagle and Condor are lead litigator Jack Silver and Martha Hartney was the managing attorney who did much of the drafting of pleadings and filings, and is the church’s general counsel. Gilbert Carrasco was the constitutional specialist for the team, Sean McAllister was a litigator who was planning to lead the deposition work and who managed Freedom of Information Act requests, and Ismail Ali was a coordinating attorney for the named plaintiffs and experts, and has helped organize multiple parties to contribute multiple perspectives and interests. Their contributions coalesced very effectively and their settlement is an important accomplishment.

Seizure of Sacramental Ayahuasca

In February and March 2020, shipments of ayahuasca, intended by the church for ceremonies, were seized by U.S. Customs and Border Control authorities. Eighty to one-hundred packages of the church’s sacrament were seized and lost or destroyed. There was a notice of seizure, with an alleged right to contest the seizure. In fact, no process was provided for an effective way to show religious and ceremonial protection. This seizure created standing, raised due process protection issues, and provided a cause of action under the Religious Freedom Restoration Act to seek a claim for redress and relief.

In March 2021, a Freedom of Information Act request was filed by two of the attorneys on behalf of Church of the Eagle and Condor v. Garland, Martha Hartney and Sean McAllister. A disclosure responsive to the request showed that Customs and Border Patrol would intercept and destroy ayahuasca. There had been 950 seizures related to DMT-containing material the previous year. A large number, about 244, similar types of seizures by Customs and Border Patrol was disclosed for 2020, for brown paste or liquid containing DMT, a significant increase, making it more difficult to import ayahuasca.

A seizure handbook, called Seizure Management and Enforcement Procedures Handbook that was largely redacted was produced. The Controlled Substances Act permits destruction of seized Schedule 1 and 2 materials. The produced materials showed that Customs and Border Patrol agents had a pattern of summarily destroying ayahuasca components without any procedure to protect freedoms under the Religious Freedom Restoration Act. A Drug Enforcement Administration risk assessment for ayahuasca was revealed, called, “Ayahuasca Risk to Public Safety,” which amplified risks and did not recognize ayahuasca as valid for ceremonial usage, regardless of measures for harm reduction and prevention of diversion.

Information about the church litigation was discussed at a July 14, 2021 Chacruna conference on the legal status of ayahuasca in the United States, with Sean McAllister, Martha Hartney, and Rob Heffernan, of the Sacred Plant Alliance. Further developments were shared at an online discussion about the church by Rodney Garcia with Don Oscar Miro-Quesada on August 23, 2022, a talk for Thank You Plant Medicine on February 20, 2021, with Martha Hartney and Rob Heffernan, a July 2023 internet discussion with Belinda Eriacho and Dr. Tafur at a Psychedelic Assisted Therapy Global summit, and a discussion of the church on the internet on August 23, 2023, with board members Belinda Eriacho and Joe Tafur, and attorneys Gilbert Carrasco and Martha Hartney.

Church Membership and Practices

The plaintiffs included leaders and board members of the church, Joseph Tafur, M.D., Belinda Eriacho, Kewal Wright, Benjaman Sullivan, and Joseph Bellus. The federal defendants were officials sued in their official capacities, Attorney General Merrick Garland as head of the Department of Justice, Secretary Alejandro Mayorkas for the Department of Homeland Security, Administrator Anne Milgram for the Drug Enforcement Agency, and Acting Commissioner Troy Miller representing the U.S. Customs and Border Patrol. The Church of the Eagle and Condor accepts a lineage of teachers and maintains a broad set of ethics that promote the wellbeing of participants. It promotes understanding of the purpose of worship among its members and encourages careful practices that prevent diversion and are consistent with the shared beliefs.

The church presented appropriate factors for religious protection, respecting practices for health and safety, to prevent diversion for inappropriate purposes, and exhibiting sincerity. It had a communal tradition with recognition of an ancestral prayer of the Americas, a call of the Spirit, to bring about a beneficial re-encounter bridging countervailing influences. In addition to having a lineage, its members adhered to a code of ethics.

Belinda Eriacho is a board member of Dine Indian heritage, also known as Navajo, who lives in Phoenix. She was inspired by the Shipibo ayahuasca traditions of Peru. She attended a retreat in Costa Rica in 2018. She has since had the MAPS facilitator training and she sees ayahuasca as a medicine for the soul. It provides an opportunity to learn from experience. She practices intention and reverence when approaching plant medicine and is committed to taking, with gratitude, only what it needed. She sees an opportunity to learn about other cultures by engaging in these medicine practices, and believes it is important to show respect and cultural appreciation to the medicine guardians and stewards.

Dr. Tafur is a family practice and integral health physician and author of Fellowship of the River. He lived in Peru for six years and studied the ayahuasca spiritual traditions, learning from Ricardo Amaringo, a curandero of the Shipibo people. After medical school, he co-founded and co-managed a traditional medicine spiritual retreat, Nihue Rao Centro Espiritual, from 2010 to 2017. He praises the ancient traditions and their beneficial impact in strengthening communities and promotion wellbeing in a holistic manner. The Indigenous healers recognize trauma as the source of systemic problems and learn about the emotional basis for healing from their experiences with plant medicine. They remove blocks that people develop as part of covering up painful emotions that can inhibit greater vitality. Removing impediments can help restore deepening soul vitality.

The Eagle and Condor prophesy is about bringing divergent paths together to restore balance. Dr. Garcia explained, in 2022, that after a gathering in 1990, in Quito, Ecuador, the prophesy gained popularity. He said that Andean mystical traditions anticipated the need for reverent feedings of the unseen spirit leading to the present time of urgency. After 500 years of one-sided priority with domination by the eagle spirit, the pattern that had dominated was leading to crisis and potential annihilation. Around 1990, a paradigm would shift, as spiritual and cosmic forces are calling for connecting in a field of resonance to offset an imbalance and toxicity of the mind. This presents a critical opportunity to begin to heal so we can address an urgent need to combine the most fruitful elements of both cultures and build a bridge between two opposing ways. It is a time of opportunity to co-exist and cooperate toward a future that would honor both ways, and life will be respected and regarded as sacred.

The church website quotes Don Oscar Miro Quesada, a curandero, who states that according to Incan prophesy, this is a defining moment in humanity’s unfolding, a re-encounter with elements, people, ancestry, and traditions “along with a restoration of harmony between humankind and Mother Nature.” It is a time for the meeting of races to culminate symbolically and overcome humanity’s illusion of separation. Soul work to listen in silence, in loving reverence, is appropriate for this time. Sacred plants are working their way into our society for soul healing, along with the ritual and ceremonial context and the healing songs.

The prophesy has been held among the Shipibo of the Peruvian Amazon as well as the Quechua of the Peruvian Andes, the Shuar of Ecuador, the Mayan people of Mexico, and the Hopi of the southwestern United States. The prophesy anticipates an activation of dormant capacities, an awakening of higher consciousness, and that individuals can help this transformation by visiting sacred sites from their traditions and exuding a field of vibratory health and serve others who are suffering. The prophesy holds that there would be a shift of influence away from the domination and separation of the time of the eagle people. The eagle sees into the distance and emphasizes linear, structured, and rational thought. The eagle represents the people of European descent who brought to North America the industrialized economy and advanced patriarchal and materialistic values. The condor is intuitive, wise, connected to the earth and nature, and is more open and receptive. The condor people of Central and South America are the Indigenous people who have cultivated sustainable and restorative ways that were undervalued in the past.

In March 2023, the plaintiffs prevailed on a motion to dismiss filed by the government. The court held the Religious Freedom Restoration Act claims could proceed to trial and that the plaintiffs had standing. The court declined to order a stay or require the plaintiffs to pursue a certificate of registration from the DEA.

When the case was proceeding toward trial and in the discovery process, the church identified, but did not disclose the identity of its expert witness. The church had raised $ 50,000, and brought on lead attorney Jack Silver and constitutional specialist Gil Carrasco on a contingency basis, with the prospect of attorney fees for prevailing plaintiffs under 42 U.S.C. 1988. In the spring of 2024, they anticipated the need to raise $ 100,000 for depositions and expenses to proceed through trial.

The settlement agreement allows the Church of the Eagle and Condor plaintiffs to import, receive, manufacture, distribute, transport, securely store, and dispose of ayahuasca solely for the church’s religious purposes. The church is authorized to receive ayahuasca “in concentrated paste or in liquid form” and, when needed, to “combine the ayahuasca paste with water to manufacture ayahuasca tea for sacramental uses” at a designated church facility in Phoenix. The settlement allows the DEA to take spot samples of the imports “for the purpose of confirming that the consignment is in fact ayahuasca which contains no controlled substance other than DMT.”

The settlement recognized “activities of a religious entity” in setting forth the rights and responsibilities of the Church of the Eagle and Condor. The allegations of the complaint with respect to the sincerity of the church and its membership in their sacramental practices were accepted. No adverse evidence was produced to discredit their sincerity. There would be certificates of registration during periods of compliance The church would be issued a bulk manufacturer registration. It also will register as an importer. The settlement agreement states that it would be receiving kilograms of paste and liquid ayahuasca from Ricardo Amaeringo, the Shipibo elder. It will be subject to sampling and inspection by the DEA or Customs and Border Patrol. Ports of entry are Los Angeles, Miami, Houston, and Atlanta.

The church will receive annual permits for shipments, registering the importer. Applications for shipment are not required to designate quantities of material. The DEA will not seek to limit the quantity of ayahuasca necessary for the plaintiffs’ religious use. It will not be required to register as a distributor. The persons designated to have responsibility for receiving, handling, preparing or manufacturing, storing, and transporting the ayahuasca are the ayahuasqueros, Joseph Tafur and Benjamin Sullivan.

According to the terms of the settlement, the Church of the Eagle and Condor anticipated holding regular meetings at members’ residences and specified locations. The church will provide the local DEA field office with general information about the locations and dates of their ceremonies. It will not be required to report the names or addresses of individual members or non-member ceremonial participants. The church asserted the privacy interests of its adherents, and their rights to freedom of association, to shield its membership lists from disclosure as part of discovery. The ayahuasca will be delivered and served by designated dispensers at ceremonial locations. The government agreed not to make public the addresses of locations.

The health screening process and first aid processes in place by the church were adopted in the settlement as safety protocols to continue. The settlement provides for participants to be asked to disclose their medications and health conditions for contraindications for participation. A person with basic life support training will be present during ceremonies in case of medical or psychological events. The designated person must be present during church ceremonies and may partake of the medicine in keeping with traditions for attendees to participate in consuming ayahuasca.

The church agreed to recordkeeping for the importation, receipt, manufacture, distribution, transportation, storage, and disposition of ayahuasca. The batches and containers will be identified. The ayahuasca will be stored in a secure location locked with a deadbolt with an alarm system, and in a locked refrigerator. The ayahuasqueros are responsible for handling the containers. During an authorized inspection of manufacturing location, church representatives would be present with DEA inspectors and the inspection will not entail physical handling of the containers by agency personnel. The ayahuasqueros are responsible transporting ayahuasca to ceremonial locations.

The church issued a press release that stated that it is “the first non-Christian church to receive protection for its spiritual practices regarding ayahuasca.” The church expressed its hope that the settlement “has positive implications and paves the way for other ancestral and syncretic religions.” General counsel for the church, Martha Hartney, stated in the press release, “Ancestral ways are returning to a place of honor, respect, and care in American culture–a culture made more beautiful because of ancestral ritual, art, and cosmology in which all of creation is family.”

The Church of the Eagle and Condor was not required to apply under the application process, the “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act,” the Drug Enforcement Administration’s internal process for assessment of the validity of religious claims. The Church of the Eagle and Condor is entitled to petition for attorney fees as prevailing plaintiff under the Religious Freedom Restoration Act and 42 U.S.C. § 1988. If the issue is not resolved, it could petition the district court for determination about an award of fees.

Church of the Celestial Heart

On January 9, 2024, attorneys Jack Silver and Sean McAllister, representing an ayahuasca church in California called Church of the Celestial Heart, succeeded in defending a motion to dismiss filed by government defendants that sought to limit the church and its leaders to decision making by the Drug Enforcement Administration. The federal district court ruled that the federal government could not require parties to pursue redress in the Drug Enforcement Administration’s administrative system. The court rejected the agency’s claim that it should exercise the power to perform the balancing-of-interests analysis under the Religious Freedom Restoration Act, rather than the courts.

In Church of the Celestial Heart v. Garland, a U.S. magistrate judge in California denied a federal government motion to dismiss a complaint by an ayahuasca church called Church of the Celestial Heart. The suit challenged the seizure, on August 13, 2021, of a shipment of its ayahuasca by the Department of Homeland Security, which was presumably destroyed. It alleged that this was followed by contacting the local county sheriff, which conducted an online investigation. This led to local authorities arresting and filing charges for violation of California law against Jade Osborne that year, and she was held until she posted bond. The suit alleged that these enforcement actions had been undertaken without researching whether they were importing the ayahuasca for religious purposes. (Opinion at 4).

The lawsuit was filed in April 2023, and named the attorney general and other federal officials, the administrator of the Drug Enforcement Agency, the Secretary of the Department of Homeland Security, and the Secretary of Customs and Border Patrol. The suit alleged a chilling effect from the parties’ fear of persecution for exercising their religious beliefs. The parties brought their complaint under Religious Freedom Restoration Act 42 U.S.C. §§ 2000bb-1(c) and 2000bb (4), for declaratory and injunctive relief, asserting the right to freely exercise their religion using an ayahuasca sacrament.

The Religious Freedom Restoration Act precludes the federal government from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(a) and (b). Id. at 9 (citing Holt v. Hobbs, 574 U.S. 352, 357 (2015)).

The Claims for Relief

The court in Church of the Celestial Heart v. Garland addressed complex challenges to the standing of the church and the plaintiffs, its lead pastor, or padrinho, Kai Karrel, Jade Osborne, the church pastor’s wife who also was a lead pastor or madrinha, Daniel Pozas, a member, board representative, and lead guardian, and Sara Mintzer, a practicing healer who was initiated in 2022. The court considered the sufficiency of the allegations to state a justiciable case, accepting the allegations as true for purposes, the standard for considering the motion to rule on whether the parties had standing and a viable cause of action.

The Church of the Celestial Heart is an independent ayahuasca church inspired by Santo Daime, but with teachings from more than a single tradition. It was intended to be open to English-speaking participants. Padrinho Kai Karrel had had a spiritist background. He had studied in the line of Barquinha, and was initiated in that Brazilian ayahuasca tradition. Madrinha Jade Osborne had been a member for five years. The church and individual plaintiffs alleged that partaking of Daime or ayahuasca is an essential and basic part of their faith, a foundational sacrament. (Opinion at 3). They shared tenets that they were part of an ancient tradition dating back 2000 years, that the drink was sacred divine sacrament, that it contained and embodied the spirit of Mother Earth, and that it allowed them to have communion with astral spirits and reconnect with the Great Spirit.

The Church of the Celestial Heart plaintiffs alleged that threats of civil and criminal penalties were an impermissible burden on their freedom of religion. The plaintiffs claimed that the threat of enforcement impinged their freedom to have access to an essential sacrament. They alleged that these actions violated the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-1(a), providing the federal government shall not substantially burden a person’s exercise of religion unless it shows the burden is in furtherance of a compelling governmental interest, and is the least restrictive means of furthering that compelling interest. (Opinion at 9) (citing Holt v. Hobbs, 574 U.S. 352 357 (2015)).

A Department of Homeland Security agent, Jim Johnson, had contacted officials with the Tulare County Sheriff’s Department to inform them about the seizure of the package and that it contained ayahuasca. (Opinion at 4 and 23, n. 4). The complaint alleged that such enforcement actions and seizure were part of a pattern or strategy by Customs and Border Patrol, a subdivision of the Department of Homeland Security, to inhibit access and practice of ayahuasca religion. The plaintiffs alleged that there had been a part of a pattern of incidents with such seizures of plant medicine followed by collaboration with local law enforcements, and investigations, arrests, and prosecutions under state law. The suit alleged that this had been continuing since 2000, with encounters in Arizona, California, Florida, Michigan, New Mexico, New York, Oregon, Tennessee, and Texas. (Opinion at 5).

The plaintiffs stated that the church will continue to follow its tenets and not be coerced to abandon their beliefs; that it will continue to import, possess, and partake of its sacrament. (Opinion at 5–6).

The Government’s Motions to Dismiss

On July 17, 2023, the federal government defendants filed a motion to dismiss, and the case was referred to the magistrate. The federal government moved to dismiss under Rule 12 (b)(1), of the Federal Rules of Civil Procedure, asserting that the plaintiffs did not have standing, that there was not an actual case or controversy on which to base remedial action by the court, absence of jurisdiction. The defendants also filed a motion to dismiss the complaint under Rule 12(b)(6), for failure to state a claim upon which relief may be granted. The standard under Rule 12(b)(6) requires that the party defending the motion must plead enough facts to state a claim that is plausible on its face, with sufficient allegations of facts to give notice and plausibly suggest an entitlement to relief. (Opinion at 8–9 (citations omitted).

The federal government asserted that the plaintiffs, an ayahuasca church and its leaders, did not have standing because the seizure was done by parties not named in the lawsuit and the prosecution, which had not been further pursued, was undertaken by local county officials. The court discussed the law of standing, stating that it is like the issue of ripeness — inquiring whether there is a harm matured sufficiently to warrant judicial intervention, and there is a definite and concrete case or controversy.

The government asserted that it had never prosecuted the plaintiff church leaders for using ayahuasca, or threatened to do so. The court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. The Church of the Celestial Heart court cited a pre-enforcement case, Thomas v. Anchorage Equal Rights Commission case, the court had required a showing of: 1) an injury in fact that was actual or imminent; 2) a causal connection between the conduct of the defendant and the injury to the plaintiff; and 3) it must be likely and not speculative that the claimant would obtain redress.

The government defendants in the Church of the Celestial Heart v. Garland case argued that the prospect of actual prosecution was unlikely, stating that there was no allegation of previous prosecutions for consuming ayahuasca, while the complaint alleged that “religious adherents have been consuming ayahuasca in the United States for the last fifty years.” (Order at 17). They argued that a single incident of past harm does not support standing for prospective relief, particularly an injunction to address threats of future harm. Id. The court held that the plaintiffs had sufficiently alleged injury, “both financially and spiritually, resulting from the loss of their sacrament and because of Defendants’ continued denial of Plaintiffs’ right to obtain, possess, and use it; and without their sacrament, Plaintiffs cannot practice their religion and Celestial Heart cannot perform essential services.” (Opinion at 17–18).

Sufficiency of Allegations Based on Past Enforcement

The court relied on a prior Ninth Circuit case, Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 834 (9th Cir. 2012) (Oklevueha I), to hold that the seizure of ayahuasca by federal actors was actual enforcement action. This was a critical factor in favor of its conclusion that there was standing. (Opinion at 18, 20). It noted, however, that in Oklevueha I, the court had proceeded to perform an analysis of the pre-enforcement criteria.

The magistrate noted that prosecutorial discretion, which would be protected from legal redress, does not extend to threatened prosecutions that create a chilling effect on constitutional rights. (Opinion at 11). When a plaintiff has alleged the intention to engage in conduct that is arguably constitutionally protected, and it is proscribed and subject to a credible threat of prosecution, the court held, one should not be required to await and undergo a criminal prosecution in order to seek relief. (Opinion at 14) (citing Oklevueha I, 676 F.3d 829, 835 (9th Cir. 2012).

The Church of the Celestial Heart v. Garland court discussed several other recent cases in support of its holding that the pleadings supported the plaintiffs’ standing and stated a claim upon which relief can be granted, but it held that Oklevueha I was the most pertinent and instructive case with respect to the standing issue. In Oklevueha I, the Ninth Circuit held that the Oklevueha Native American Church of Hawaii had standing to seek a legal remedy under the Religious Freedom Restoration Act when its ceremonial cannabis had been seized by federal authorities. In that case, the district court had considered principles favoring standing in a pre-enforcement context, including the likelihood of future prosecution. (Opinion at 17–18).

Holding that the actual enforcement action was sufficient of itself, the Ninth Circuit held that the district court’s focus on future prosecution was unnecessary, stating that claims are ripe due to the enforcement and seizure that already had taken place, and that a definite and concrete dispute about the lawfulness was present. (Opinion at 20–21) (citing Oklevueha I, 676 F.3d at 836–37). Because the church had been subject to enforcement of the Controlled Substances Act by the federal defendants, by seizing cannabis that was part of its sacramental practice, it had not been necessary for the Oklevueha Native American Church of Hawaii to show a danger of injury or a history of enforcement of the Controlled Substances Act. (Opinion at 21) (citing Oklevueha I, 676 F.3d at 836–37). Thus, a definite and concrete dispute about the lawfulness was before the court and the claims were ripe due to the seizure that already had occurred. (Opinion at 21). A nonspeculative case and controversy existed regarding the right to possess and consume ayahuasca for religious reasons.

Analysis Based on Pre-Enforcement Standards for Standing

The Church of the Celestial Heart court stated that in a pre-enforcement claim with no actual complaint, seizure, or other enforcement measure, the plaintiffs would have to allege a genuine threat of imminent persecution. (Opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1139 (9th Cir. 2000). The Church of the Celestial Heart court observed that in the Thomas case, because no enforcement action had occurred, the court had required allegations to show a genuine threat of prosecution and consideration of the three factors. (Church of the Celestial Heart opinion at 20) (citing Thomas v. Anchorage Equal Rights Commission, 220 F.3d at 1139).

Although it had found sufficient allegations to find standing based on actual enforcement action, it proceeded to examine the criteria for standing in the pre-enforcement context. The court observed that in the pre-enforcement context, for there to be an actual or imminent injury to support standing, there must be sufficient allegations to show a causal connection between the conduct and the injury, and that it must be likely and not speculative that the claimant will obtain redress. The court noted that the Oklevueha Native American Church of Hawaii court had found standing when there was enforcement activity, the seizure of marijuana intended for sacramental purposes, but nevertheless proceeded to consider the pre-enforcement criteria under the Thomas standards. Oklevueha I, 676 F.3d at 833–34, 836–37. To find a definite and concrete case or controversy that will afford standing to a party, the complaint had to identify a harm that advanced to a level to warrant judicial intervention. Oklevueha I, 676 F.3d at 835 (quotation omitted).

The district court in Church of the Celestial Heart v. Garland held that in pre-enforcement cases, the court would need to find allegations sufficient to show a genuine threat of imminent prosecution, with three elements for inquiry: 1) did the plaintiffs articulate a concrete plan to violate the law? 2) Did the government give a specific warning or threat to initiate proceedings? 3) was there a history of past prosecution or enforcement? (Opinion at 14) (citing Oklevueha I, 676 F.3d at 835 (quoting Thomas, 220 F.3d at 1139)).

The government defendants did not dispute the allegation that the plaintiffs had a specific plan to participate in the conduct that the Drug Enforcement Administration considered to be in violation of the Controlled Substances Ac. (Opinion at 15). In Oklevueha I, the court did not have allegations of the government warning or threatening to initiate proceedings, but alleged that the controlled substance was a sacrament that was seized, and the plaintiffs feared for their ability to cultivate, consume, or possess the marijuana for religious purposes. Oklevueha I, 676 F.3d at 833. The district court upheld the claim for return and compensation under the Religious Freedom Restoration Act, but denied the pre-enforcement claims for ripeness. The Ninth Circuit had reversed the dismissal of the institutional plaintiff claims and the claims for prospective relief. It held that the district court’s requirement of allegations to support threat of future prosecution was not appropriate because injurious enforcement had already occurred. It was not necessary to show danger of injury or a history of past prosecution or enforcement when the Controlled Substances Act already was enforced against the plaintiffs. Oklevueha I, 676 F.3d at 836–37. The district court in Church of the Celestial Heart held that the allegations supported a “nonspeculative” case and controversy affecting the plaintiffs’ right to possess and consume ayahuasca for religious reasons. (Opinion at 22).

The government defendants disputed that there was a sufficient allegation of a threat of imminent prosecution. The motion to dismiss disputed that the federal defendants had “communicated a specific warning or threat to initiate proceedings.” The magistrate judge held that the plaintiffs made sufficient allegation that there was a genuine threat of imminent prosecution, and that the prosecution and enforcement activities, the seizure, and the threat of general enforcement were “fairly traceable” to the named federal officials. (Opinion at 25, 30). The opinion noted that the Celestial Heart Church was a nonprofit corporation, and had been a legal entity, as an unincorporated nonprofit before the seizure in August 2021.

The Church of the Celestial Heart v. Garland court discussed two decisions in the case of plaintiffs in churches in Arizona who alleged federal government actors seized shipments of ayahuasca from Peru that were intended for religious ceremonies, Arizona Yage Assembly v. Garland, 595 F. Supp. 3d 869 (D. Ariz. 2022) (AYA v. Garland I); and Arizona Yage Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023) (“AYA v. Garland II”). In AYA v. Garland I, the court had dismissed the plaintiffs’ claims under the Religious Freedom Restoration Act.

In AYA v. Garland I, the court held, “Although Federal Defendants have seized Plaintiffs’ ayahuasca in the past, the Court characterizes the injunction Plaintiffs seek as a pre-enforcement injunction because the Oklevueha I court did so in a factually analogous situation.” 595 F. Supp.3d 869, 882 n. 11, (citing Oklevueha I, 676 F.3d at 835). There was a delay pending the Supreme Court’s decision in Tanzin v. Tanvir, __ U.S. ___, 141 S.Ct. 486, 208 L.Ed.2d 295 (2020), which held that money damages are available under the Religious Freedom Restoration Act against federal officials sued in their individual capacities. AYA v. Garland I, 595 F. Supp. 3d at 876.

Following a series of amendments to the complaint and motions to dismiss, the court in AYA v. Garland II held that the fifth amended complaint’s allegations that the plaintiff Arizona Yage Assembly was holding meetings bi-monthly and planned to do so for the foreseeable future, were “sufficient, taken as true, to allege a concrete plan” to violate the Controlled Substances Act.” (AYA v. Garland II). The court in AYA v. Garland II also held that allegations against the Drug Enforcement Agency were sufficient to state a claim for relief because the Controlled Substances Act was enforced by different agencies of the federal government. The agencies’ actions were intertwined, the court held; the Drug Enforcement Agency would enforce the law by granting or denying permits to import controlled substances, without which the Customs and Border Patrol or Department of Homeland Security, or both, would seize packages and that the agency defendants could not avoid accountability for enforcing the law by claiming to enforce only one segment of it. AYA v. Garland II, 2023 WL 3246927, at *3.

The Church of the Celestial Heart v. Garland court held that the seizure was “fairly traceable” to the challenged actions of the defendants for purposed of the motion to dismiss. (Opinion at 25). It observed that the Controlled Substances Act operates through multiple agencies, and that it had been enforced against the plaintiffs even without a prosecution.

The court observed that the Celestial Heart plaintiffs alleged that ayahuasca is an essential sacrament for each of them, needed for their practice of their religion, and that there was a threat of coercion from the arrest of one of its leaders. (Opinion at 34). The church alleged financial and spiritual loss from confiscation and destruction of its sacramental ayahuasca, and that it placed a burden on the church, placing tension between following the tenets of the religion and the pressure from facing the prospect of civil and criminal penalties. (Opinion at 34). The church sought prospective relief that would benefit its members. The court found sufficient allegations to support organizational standing, noting that in Oklevueha I, the court upheld organizational standing based on the allegations that the members used marijuana as a regular sacrament, that it was the sole purpose of the organization, and that it was seeking relief to protect the members’ ability to observe an integral part of their religious practice.

Plaintiffs Stated Claims Upon Which Relief Could be Granted for Violations of the Religious Freedom Restoration Act, and They Were Not Required to Exhaustion of Administrative Remedies to Address the Alleged Violations

The court held that having alleged a sincere religious practice employing ayahuasca sacramentally which was substantially burdened by application of the Controlled Substances Act the plaintiffs sufficiently alleged a prima facie case of violation of their religious liberty protection under the Religious Freedom Restoration Act. (Opinion at 36). There was a substantial burden from having to choose between following the tenets of their faith and facing coercive consequences. (Opinion at 37).

The federal government also moved the court for a stay to require the plaintiffs to seek a religious exemption in an administrative proceeding with the Drug Enforcement Administration. (Opinion at 9). The Drug Enforcement Administration urged the court to require administrative factfinding as a prerequisite to court adjudication of these claims, and in the alternative requested the court to exercise its discretion to allow the agency to balance public safety and diversion concerns with the religious liberty interests. The defendants contended that the agency had the expertise to make findings and investigate the governmental interests.

The government argued that the agency should have the prerogative, in the first instance, to examine the religious freedom claims, perform the appropriate balancing of interests to decide whether public safety interests outweigh the burden on religious practices, prepare a record, and maintain an independent administrative system for churches seeking redress. It urged the court to decline review until after the plaintiffs had sought an exemption to give the Drug Enforcement Administration the opportunity in the first instance to evaluate their eligibility for a religious exemption from application of the Controlled Substances Act. (Opinion at 30–31).

After the decision in Gonzales v. O Centro Espirita Beneficiente Unaio do Vegetal, 546 U.S. 418 (2006), the Drug Enforcement Administration developed a separate religious exemption process. (Opinion at 12). Then it offered an on-line guidance first issued in 2009, and which was updated in 2020. It is titled, the Drug Enforcement Administration Diversion Control Division, Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act. The factors include the risk of harm, the adequacy of safeguards to address concerns about diversion.

The court observed that the Drug Enforcement Administration had been delegated authority under the Controlled Substances Act to register applicants to import, distribute, and dispense Schedule I controlled substances when consistent with the public interest. 21 U.S.C. § 823(b); 21 C.F.R.§ 1301.31 (giving the authority of the attorney general to the Drug Enforcement Administration). The federal government defendants argued that registration is required for each importation and to handle a controlled substance for religious purposes to assure safety. (Opinion at 12). The government sought very specific information regarding the acquisition, use, possession, and storage of ayahuasca by the Church of the Celestial Heart. It proposed to address each alleged religious practice.

The court held that the Religious Freedom Restoration Act provides that a person “burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. 42 U.S.C. §§ 2000bb-1(c). The claim or defense protects against federal government agencies from substantially burdening a person’s exercise of religion unless it shows that the burden is in furtherance of a compelling state interest and is the least restrictive means of furthering that compelling state interest. 42 U.S.C. §§ 2000bb-1(b). Opinion at 36). A cause of action would not be dismissed simply because the religious practices with ayahuasca were ongoing, when there were enforcement actions including arrest and seizure due to the actions of the federal defendants.

The defendants asserted that the complaint did not allege a claim upon which relief could be granted because it had an avenue to pursue through the Drug Enforcement Administration’s religious exemption process. They argued that the failure to apply for an exemption compromised their claims and that they should be required to allege that the administrative process burdened a sincere exercise of religion. The court noted that the plaintiffs were not challenging the exemption system, but alleged that they should not be required “to endure the DEA’s significantly more restrictive exemption process,” as well as the confiscation and prohibition of their conduct. (Opinion at 25). The court found that the plaintiffs were not required to address burdens of an administrative process when the allegations showed burdens on their religious practices including the government’s prohibition of ayahuasca as a sacrament. (Opinion at 41). to consider the risks of harm when considered with the organization’s proposed safeguards.

The court relied on several cases, including Oklevueha I — Oklevueha Native American Church of Hawaii, Inc. v. Holder, 676 F.3d 829, 838 (9th Cir. 2012); and AYA v. Garland II — Arizona Yage Assembly v. Garland, 2023 WL 3246927, (D. Ariz. May 4, 2023), to support its rejection of the argument. In Oklevueha I, the court declined the invitation “to read an exhaustion requirement into RFRA where the statute contains no such condition, …and the Supreme Court has not imposed one.” The Oklevueha I court had noted that the Supreme Court had not required pursuing an exemption from the agency in the O Centro case. It also stressed that the Religious Freedom Restoration Act plainly contemplates that courts would recognize exceptions to the Controlled Substances Act.

The court noted that the AYA v. Garland II and other courts, including Church of the Eagle & the Condor v. Garland, №2:22-cv-1004-SRB, at 6 n. 4 (D. Ariz. June 9, 2022), had rejected similar arguments that plaintiffs had to seek and exemption under the Guidance. (Opinion at 31). The court distinguished the decision in Soul Quest where the plaintiffs pursued the Drug Enforcement directed the ayahuasca church plaintiffs to petition for a religious exemption from the Controlled Substances Act and they had done so, and their petition was denied.

The plaintiffs stressed that two courts had granted relief under the Religious Freedom Restoration Act. In addition to the Supreme Court’s 2006 decision in O Centro, in 2009, the United States District Court in Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210,
1219 (D. Or. 2009), vacated sub nom. Church of Holy Light of Queen v. Holder, 443 F. App’x
302 (9th Cir. 2011) (to limit scope of injunction).

The court stated that agency consideration was not necessary to generate a record and to reach a proper decision. (Opinion at 45). The court also relied on cases holding that congressional intent to require exhaustion of administrative remedies is necessary to require exhaustion of administrative remedies.

The court declined the defendants’ request for a stay to allow for the plaintiffs to engage with the administrative process. They argued that the court had discretion to stay proceedings for agency findings even where exhaustion of remedies was not required under the law, citing McCarthy v. Madigan, 503 U.S. 140, 144 (1992). (Opinion at 44). The court stated that it did not view the Drug Enforcement Administration Guidance document “as a significant administrative scheme in the overall context. (Opinion at 45). It relied on language in the Religious Freedom Restoration Act places decision making responsibility in the courts, as well as the decision in Oklevueha I, as particularly instructive. The court agreed with the argument of the plaintiffs that government agencies should not be allowed to regulate religion or other fundamental rights, or “chaos would inevitably ensue.” (Opinion at 46) (quoting opposition memorandum).

The court held that if it were to require the plaintiffs to proceed before the Drug Enforcement Administration’s administrative process as the government was urging, by pursuing an application for an exemption from the Controlled Substances Act, the church would lose the option to have preliminary relief. (Opinion at 47). It could be restricted in holding its ceremonies because parties seeking religious exemptions were precluded by law from using prohibited substances, like ayahuasca, until they obtain an exemption and proceed with registration.

The court held that the Drug Enforcement Administration exemption process may preclude claimants from that form of protection available in court under the Religious Freedom Restoration Act. (Opinion at 46–47) (citing DEA Guidance at 2: “Activity Prohibited Until Final Determination. No petitioner may engage in any activity prohibited under the Controlled Substances Act or its regulations unless the petition has been granted and the petitioner has applied for and received a DEA Certificate of Registration.”). The court also observed that the guidance allows the agency to suspend or revoke protection, “without detailed separate guidelines or specific protections except for aversion to general principles.” (Opinion at 47).