Appendix — Gonzales v. O Centro Espírita Beneficente União Do Vegetal

In the Supreme Court of the G@inted States

ALBERTO R. GONZALES, ET AL., PETITIONERS

v.

O CENTRO ESPIRITA BENEFICIENTE UNIAO Do

VEGETAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTHCIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT

Acting Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

GREGORY G. KATSAS

Deputy Assistant Attorney

General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

MICHAELJAY SINGER

MATTHEW M. COLLETTE

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

» BEST AVAILABLE COPY

TABLE OF CONTENTS

Appendix A (en banc court of appeals’ decision,

dated Nov. 12, 2004)

Appendix B (original court of appeals’ decision, dated

Sept. 4, 2003)

Appendix C (court of appeals’ opinion granting a stay,

dated Dec. 12, 2002)

Appendix D (court of appeals’ order on motion to

stay the mandate, dated Nov. 23, 2004)

Appendix E (district court’s memorandum opinion and

order, dated Aug. 12, 2002)

Appendix F (district court’s preliminary injunction,

dated Nov. 13, 2002)

Appencix G (declaration of Gary T. Sheridan)

Appendix H (declaration of Robert E. Dalton)

Appendix I (1971 United Nations Convention on

Psychotropic Substances

Appendix J (relevant statutory provisions)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 02-2323

O CENTRO ESPIRITA BENEFICIENTE UNIAO Do

VEGETAL, ALSO KNOWN AS UNIAO Do VEGETAL{(USA),

INC., ANEW MEXICO CORPORATION ON ITS OWN

BEHALF AND ON BEHALF OF ALL ITS MEMBERS IN THE

UNITED STATES; JEFFREY BRONFMAN, INDIVIDUALLY

AND AS PRESIDENT OF UDV-USA; DANIEL TUCKER,

INDIVIDUALLY AND AS VICE-PRESIDENT OF UDV-USA;

CHRISTINA BARRETO, INDIVIDUALLY AND AS

SECRETARY OF UDV-USA; FERNANDO BARRETO,

INDIVIDUALLY AND AS TREASURER OF UDV-USA;

CHRISTINE BERMAN; MITCHEL BERMAN; JUSSARA DE

ALMEIDA DIAS, ALSO KNOWN ASJUSSARA ALMEIDA

DIAS; PATRICIA DOMINGO; DAVID LENDERTS; DAVID

MARTIN; MARIA EUGENIA PELAEZ; BRYAN REA; DON

St. JOHN; CARMEN TUCKER; SOLAR LAw,

INDIVIDUALLY AND AS MEMBERS OF UDV-USA,

PLAINTIFFS-APPELLEES

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED

STATES; ASA HUTCHINSON, ADMINISTRATOR OF THE

UNITED STATES DRUG ENFORCEMENT

ADMINISTRATION; PAUL H. O’NEILL, SECRETARY OF

THE DEPARTMENT OF TREASURY OF THE UNITED

STATES; DAVID C. IGLESIAS, UNITED STATES

ATTORNEY FOR THE DISTRICT OF NEW MEXICO; DAVID

F. FRY, RESIDENT SPECIAL AGENT IN CHARGE OF THE

UNITED STATES CUSTOMS SERVICE OFFICE OF

CRIMINAL INVESTIGATION IN ALBUQUERQUE, NEW

MEXICO; ALL IN THEIR OFFICIAL CAPACITIES,

DEFENDANTS-APPELLANTS

(1)

2a

CHRISTIAN LEGAL SOCIETY; THE NATIONAL

ASSOCIATION OF EVANGELICALS; CLIFTON

KIRKPATRICK, AS THE STATED CLERK OF THE

GENERAL ASSEMBLY OF THE PRESBYTERIAN CHURCH

(U.S.A.); QUEENS FEDERATION OF CHURCHES,

AMICUS CURIAE

(Filed: Nov. 12, 2004]

ON REHEARING EN BANC APPEAL FROM THE

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO

(D.C. No. CIV-00-1647 JP/RLP) ~

Before: TACHA, Chief Judge, SEYMOUR, PORFILIO,

EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY,

HARTZ, O'BRIEN, MCCONNELL, and TYMKOVICH, Cir-

cuit Judges.

PER CURIAM.

1.

This matter is before the en banc court to review

issues emanating from the panel opinion in O Centro

Espirita Beneficiente Uniao Do Vegetal v. Ashcroft,

349 F.3d 1170 (10th Cir. 2003). The panel affirmed a

preliminary injunction, granted under the Religious

Freedom Restoration Act (“RFRA”), which enjoined

the United States from relying on the Controlled Sub-

stances Act (“CSA”) and the United Nations Conven-

tion on Psychotropic Substances (“Convention”) to pro-

hibit the sacramental use of hoasca by Uniao do

Vegetal and its members (collectively “UDV”). This

court granted rehearing to review the different stan-

3a

dards by which we evaluate the imi

da grant of preliminary

injunctions, and to decide how those dards

be applied in this case. soo —

Il.

The underlying facts relating to the ies and

issues are fully described in the siaeloaiien yl

therefore unnecessary to reiterate here. UDV invoked

RFRA, 42 U.S.C. § 2000bb-1, to obtain declaratory and

injunctive relief which would prevent the government

from prohibiting UDV’s importation, possession, and

use of hoasca for religious purposes and from attempt-

ing to seize the substance or prosecute individual UDV

members.’ After an evidentiary hearing, the district

court granted UDV’s motion for a preliminary injunc-

tion pending a decision on the merits. The government

appealed that decision, the panel affirmed, and we

granted the en banc petition.” ;

III.

The en banc court is divided over the outcome

case. N evertheless, a majority of the court has to

maintain a heightened standard for granting any of the

three historically disfavored preliminary injunctions. A

different majority has voted to affirm the district

court's entry of a preliminary injunction in this case.

' Hoasca is a liquid tea-like mixture made from

. > * . F

chotria viridis and banisteriposis caapi. These a amet ige

dy rey o> be pe viridis contains dimethyltryptamine

, which is listed Se

ae on Schedule I of the CSA and the Con-

2 *

This court granted an emergency stay of the preliminary

injunction pending appeal. See O Centro irt heroft

F.3d 463 (10th Cir. 2002). ene

7 ee

4a

A. Standards for Granting Disfavored Preliminary

Injunctions

In SCFC ILC, Inc. v. Visa USA, Inc. , this court

identified the following three types of specifically dis-

favored preliminary injunctions and concluded that a

movant must “satisfy an even heavier burden of show-

ing that the four [preliminary injunction] factors . . .

weigh heavily and compellingly in movant’s favor be-

fore such an injunction may be issued”: (1) preliminary

injunctions that alter the status quo; (2) mandatory

preliminary injunctions; and (3) preliminary injunctions

that afford the movant all the relief that it could re-

cover at the conclusion of a full trial on the merits. 936

F.2d 1096, 1098-99 (10th Cir. 1991). With one important

alteration, a majority of the en banc court has voted to

affirm the core holding of SCFC ILC. Part I of the

Opinion of Murphy, J., joined by Ebel, Kelly, Hartz,

O’Brien, McConnell, and Tymkovich, JJ.; Part I of the

Opinion of McConnell, J, joined by Hartz, O’Brien, and

Tymkovich, JJ. Thus, if a movant seeks a preliminary

injunction that falls into one of the three categories

identified in SCFC ILC, the movant must satisfy a

heightened burden. The en banc court does, however,

jettison that part of SCFC ILC which describes the

showing the movant must make in such situations as

“heavily and compellingly.” SCFC ILC, 936 F.2d at

1098. Instead, the en banc court holds that courts in

this Circuit must recognize that any preliminary injunc-

tion fitting within one of the disfavored categories must

be more closely scrutinized to assure that the exigen-

cies of the case support the granting of a remedy that is

extraordinary even in the normal course. Furthermore,

because a historically disfavored preliminary injunction

operates outside of the normal parameters for interim

5a

relief, movants seeking such an injunction are not

entitled to rely on this Circuit’s modified-likelihood-of-

success-on-the-merits standard. Instead, a party seek-

ing such an injunction must make a-strong showing

both with regard to the likelihood of success on the

merits and with regard to the balance of harms, and

may not rely on our modified likelihood-of-success-on-

the-merits standard.

B. Grant of Preliminary Injunction in this Case

Although the reasons vary, a majority of the en banc

court is of the view that the district court’s entry of a

preliminary injunction in this case should be affirmed.

Part II of Opinion of Seymour, J., joined by Tacha, C.J.,

and Porfilio, Henry, Briscoe, Lucero, McConnell, and

Tymkovich, JJ.; Part II of the Opinion of McConnell, J.,

joined by Tymkovich, J.

VI.

The decision of the United States District Court for

the District of New Mexico to grant UDV’s request for

a preliminary injunction is hereby AFFIRMED. The

temporary stay of the district court’s preliminary

injunction issued by this court pending resolution of

this appeal is vacated.

6a

Murpny, Circuit Judge, joined in full by EBEL, KELLY,

and O’BRIEN, Circuit Judges, and as to Part I by

HARTZ, MCCONNELL, and TYMKOVICH, Circuit Judges,

concurring in part and dissenting in part.

I agree with the per cwriam opinion that a movant

for a preliminary injunction must make a heightened

showing when the requested injunction will alter the

status quo. As set out more fully below, such an ap-

proach is completely consistent with the historic pur-

pose of the preliminary injunction. Accordingly, I join

parts I, II, and III.A of the per curiam opinion. I must

respectfully dissent, however, from the conclusion that

QO Centro Espirita Beneficiente Uniao do Vegetal

(“UDV”) has sufficiently shown its entitlement to a

preliminary injunction prohibiting the United States

from enforcing the Controlled Substances Act (“CSA”),

21 U.S.C. § 801 et seg. As a direct result of the preli-

minary injunction embraced by the majority, the

United States is placed in violation of the United Na-

tions Convention on Psychotropic Substances, Feb. 21,

1971, 32 U.S.T. 543 (hereinafter the “Convention”). I

thus dissent from parts III.B and IV of the per cwriam

opinion.

I.

A. A Heightened Showing is Appropriate When the

Requested Preliminary Injunction Would Alter the

Status Quo

The Supreme Court has observed “that a preliminary

injunction is an extraordinary and drastic remedy, one

that should not be granted unless the movant, by

a clear showing, carries the burden of persuasion.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per

curiam) (quotation omitted); accord SCFC ILC, Ince. v.

“=

7a

VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)

(“As a preliminary injunction is an extraordinary rem-

edy, the right to relief must be clear and unequivocal.”

(citation omitted)); United States ex rel. Citizen Band

Potawatomi Indian Tribe of Okla. v. Enter. Mgmt.

Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989)

(“Because it constitutes drastic relief to be provided

with caution, a preliminary injunction should be

granted only in cases where the necessity for it is

clearly established.”). The Supreme Court has further

indicated that the “limited purpose” of a preliminary

injunction “is merely to preserve the relative positions

of the parties until a trial on the merits can be held.”

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).

Accordingly, courts should be hesitant to grant the

extraordinary interim relief of a preliminary injunction

in any particular case, but especially so when such an

injunction would alter the status quo prior to a trial on

the merits.

This court’s precedents are in harmony with the

sentiments expressed by the Supreme Court in

Mazurek and Camenisch. In particular, this court has

identified the following three types of disfavored pre-

liminary injunctions and concluded that a movant must

make a heightened showing to demonstrate entitlement

to preliminary relief: “(1) a preliminary injunction that

disturbs the status quo; (2) a preliminary injunction

that is mandatory as opposed to prohibitory; and (3) a

preliminary injunction that affords the movant. sub-

stantially all the relief he may recover at the conclusion

of a full trial on the merits.” SCFC ILC, 936 F.2d at

1098-99. Because each of these types of preliminary

injunction is at least partially at odds with the historic

purpose of the preliminary injunction—the preserva-

8a

tion of the status quo pending a trial on the merits

—this court has held that to obtain such an injunction

the movant must demonstrate that “on balance, the

four [preliminary injunction] factors weigh heavily and

compellingly in his favor.” Jd. at 1099.

The en banc court specifically reaffirms the central

holding in SCFC ILC that a movant seeking a preli-

minary injunction which upsets the status quo must

satisfy a heightened burden. In advocating the aban-

donment of this requirement, Judge Seymour suggests

that requiring a heightened showing when a requested

preliminary injunction would alter the status quo is

inconsistent with the need to prevent irreparable harm

and is inconsistent with the approaches taken by other

circuits. Opinion of Seymour, J., at 4-6. Neither asser-

tion offers a convincing reason for abandoning the well-

reasoned approach set out in SCFC ILC.

It is simply wrong to assert that the application of

heightened scrutiny to preliminary injunctions which

alter the status quo is inconsistent with the purpose of

preliminary injunctions. The underlying purpose of the

preliminary injunction is to “preserve the relative

positions of the parties until a trial on the merits can

be held.” Camenisch. 451 U.S. at 395; see also 11A

Charles Alan Wright et ai., Federa! Practice and Proce-

dure § 2947, at 123 (2d ed. 1995) [hereinafter “Wright &

Miller”) (noting that the purpose of the preliminary

injunction is to assure that the non-movant does not

take unilateral action which would prevent the court

from providing effective relief to the movant should the

movant prevail on the merits). Although the preven-

tion of harm to the movant is certainly a purpose of the

preliminary injunction, it is not the paramount purpose.

See Wright & Miller § 2947, at 123 (noting that although

~~

9a

the prevention of harm to the movant is an important

factor to be considered in deciding whether to grant a

preliminary injunction, the primary purpose for such an

order is “the need to prevent the judicial process from

being rendered futile by defendant’s action or refusal to

act”). Because a preliminary injunction which alters

the status quo is generally contrary to this traditional

purpose, such an injunction deserves some form of

heightened scrutiny. See id. § 2948, at 133-35 & n.11

(collecting cases for proposition that “the purpose of the

preliminary injunction is the preservation of the status

quo and that an injunction may not issue if it would

disturb the status quo”). Such an approach is supported

by strong policy rationales.

Any injury resulting from a preliminary injunction

that merely preserves the status quo is not a judicially

inflieted injury. Instead, such injury occurs at the

hanas of a party or other extrajudicial influence. By

contrast, an injury resulting from a preliminary injunc-

tion that disturbs the status quo by changing the rela-

tionship of the parties is a judicially inflicted injury. It

is injury that would not have occurred but for the

court’s intervention and one inflicted before a resolu-

tion of the merits. Because the issuing court bears

extra responsibility should such injury occur, it should

correspondingly be particularly hesitant to grant an

injunction altering the status quo unless the movant

makes an appropriate showing that the exigencies of

the case require extraordinary interim relief. It may be

small consolation should the issuing court ultimately

resolve the merits in favor of the non-moving party; at

that point the non-moving party has often incurred

significant costs as a result of abiding by the improvi-

10a

dent preliminary injunction.’ A plaintiff who was

willing to live with the status quo before filing its

complaint should meet a higher standard in order to

have the court intervene with an injunction that alters

the status quo. Judge Seymour’s approach, which seeks

to elevate the importance of irreparable harm at the

expense of the status quo, is inconsistent with the

historic underpinnings of the preliminary injunction.

Nor is the failure of other courts to adequately dis-

tinguish between mandatory injunctions and injunc-

tions that alter the status quo a sufficient reason to

abandon SCFC ILC. See-Opinion of Seymour, J., at 4 &

n.l. In asserting that preliminary injunctions which

alter the status quo should not be an independent dis-

favored category, Judge Seymour relies heavily on the

fact that in cataloging the types of disfavored injunc-

| See generally Wright & Miller § 2947, at 123. According to

Professor Wright,

The circumstances in which a preliminary injunction may be

granted are not prescribed by the Federal Rules. As a result,

the grant or denial of a preliminary injunction remains a

matter for the trial court’s discretion, which is exercised in

conformity with historic federal equity practice. Although

the fundamental fairness of preventing irremediable harm to

a party is an important factor on the preliminary injunction

application, the most compelling reason in favor of entering a

Rule 65(a) order is the need to prevent the judicial process

from being rendered futile by defendant’s action or refusal to

act. On the other hand, judicial intervention before the

merits have been finally determined frequently imposes a

burden on defendant that ultimately turns out to have been

unjustified. Consequently, the preliminary injunction is ap-

propriate whenever the policy of preserving the court’s

power to decide the case effectively outweighs the risk of

imposing an interim restraint before it has done so.

Id. (footnotes omitted).

~

lla

tions, no other court has chosen to specifically distin-

guish between preliminary injunctions which alter the

status quo and preliminary injunctions which are man-

datory. Jd. None of the cases cited by Judge Seymour,

however, contain any discussion of this question. In-

stead, those cases simply note, almost reflexively, that

any preliminary injunction which alters the status quo

is a mandatory injunction and, thus, subject to height-

ened scrutiny. /d. (collecting cases). The reflexive

equation of preliminary injunctions which alter the

status quo with mandatory injunctions by the courts

cited by Judge Seymour is simply not a compelling

justification to abandon the reasoned approach from

SCFC ILC.

In any event, it is certainly true that courts have

historically applied a more stringent standard to man-

datory preliminary injunctions for the very reason that

those injunctions generally do alter the status quo. See,

e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d

517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban

Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); Anderson v.

United States, 612 F.2d 1112, 1114 (9th Cir. 1979). In

fact, most courts decide whether a given preliminary

injunction is “mandatory” or “prohibitory” by deter-

mining whether or not it alters the status quo. See, e.g.,

Tom Doherty Assocs., 60 F.3d at 34; Acierno v. New

Castle County, 40 F.3d 645, 647 (3d Cir. 1994); Stanley

v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994);

Martinez v. Mathews, 544 F.2d 1233, 1242-43 (5th Cir.

1976). For these courts, then, the question whether an

injunction is mandatory or prohibitory is merely a

proxy for the more significant question whether an

injunction alters the status quo. Thus, to the extent

these two categories do overlap, it is indeed strange to

12a

keep the proxy while jettisoning the underlying con-

sideration giving rise to that proxy. See Opinion of

Seymour, J., at 4, 9-10 (advocating the abandonment of

heightened scrutiny for injunctions which alter the

status quo, while maintaining heightened scrutiny for

mandatory injunctions).

There is good reason, however, to distinguish be-

tween mandatory injunctions and injunctions which

alter the status quo and to treat both types as dis-

favored. As set out above, “[a] preliminary injunction

that alters the status quo goes beyond the traditional

purpose for preliminary injunctions, which is only to

preserve the status quo until a trial on the merits may

be had.” SCFC ILC, 936 F.2d at 1099. Although man-

datory injunctions also generally alter the status quo,

that is not always the case. It is not at all difficult to

envision situations where a mandatory injunction would

preserve the status quo and a prohibitory injunction

would alter the status quo. See Friends for All Chil-

dren, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 830

n.21 (D.C. Cir. 1984) (noting that whether a mandatory

or prohibitory injunction will maintain or alter the

status quo depends on whether the status quo is a

“condition of action” or a “condition of rest”). Without

regard to whether a mandatory preliminary injunction

alters the status quo, however, it is still appropriate to

disfavor such injunctions “because they affirmatively

require the nonmovant to act in a particular way, and as

a result they place the issuing court in a position where

it may have to provide ongoing supervision to assure

the nonmovant is abiding by the injunction.” SCFC

ILC, 936 F.2d at 1099. Thus, it is simply incorrect to

assert that there is perfect overlap between these two

categories and that the concept of status quo should be

a ene: owe

13a

folded into the question whether an injunction is man-

datory or prohibitory. The fact that other courts have

failed to recognize these subtle distinctions is simply no —

reason to abandon the three artfully drawn categories

set out in SCFC ILC.

For these reasons, the court is correct in reaffirming

the central holding in SCFC ILC that a movant seeking

a preliminary injunction which upsets the status quo

must satisfy a heightened burden. Nevertheless, the

decision to jettison SCFC ILC’s “heavily and compel-

lingly” language as the articulated standard for grant-

ing any of the three types of disfavored preliminary in-

junctions is appropriate. It is enough to note that

courts in this Circuit should recognize that each of the

three types of injunction identified above is disfavored

and that a request for such an injunction should be even

more closely scrutinized to assure that the exigencies of

the case support the granting of a remedy that is cer-

tainly extraordinary. See Enter. Mgmt. Consultants,

883 F.2d at 888 (holding that even a traditional injunc-

tion, i.e., an injunction which preserves the status quo,

is an “extraordinary” and “drastic” remedy). Further-

more, because a preliminary injunction that alters the

status quo operates outside the historic parameters for

such interim relief, movants should not be able to rely

on this Circuit’s modified-likelihood-of-success-on-the-

merits standard. Instead, in addition to making a

strong showing that the balance of the harms tips in its

favor and that the preliminary injunction is not adverse

to the public interest, a movant seeking a preliminary

injunction that alters the status quo should always have

l4a

to demonstrate a substantial likelihood of success on the

merits.”

B. The Status Quo in This Case is the Enforcement of

the CSA and Compliance with the Convention

The status quo in fact in this case is the enforcement

of the CSA and compliance with the Convention. The

record is clear that both UDV itself and the United

States recognized that the importation and consump-

tion oi hoasca violated the CSA. UDV made a con-

certed effort to keep secret its importation and use of

hoasca. On the relevant import forms, UDV officials in

the United States generally referred to hoasca as an

“herbal tea”; they never called it hoasca or ayahuasca

or disclosed that it contained DMT. UDV president

Jeffrey Bronfman informed customs brokers that the

substance being imported was an “herbal extract” to be

used by UDV members as a “health supplement.” Fur-

thermore, in an e-mail drafted by Bronfman, he

* Judge Seymour is simply incorrect in implying that the

application of heightened scrutiny to preliminary injunctions that

alter the status quo is inconsistent with the need to prevent

irreparable harm. Opinion of Seymour, J., at 6-7. Instead, such an

approach recognizes that preliminary injunctions which alter the

status quo, an unconventional and historically disfavored type of

interim relief, are far more likely to impose untoward costs on the

non-moving party. For that reason, and because of the attendant

costs imposed on the judiciary by such preliminary injunctions, it is

appropriate to require that movants make a heightened showing as

a predicate to obtaining a preliminary injunction which alters the

status quo. Such a system is sufficiently flexible to allow courts to

grant a preliminary injunction which alters the status quo when

the harm to the movant is clear, certain, and irreparable; the

balance of harms undoubtedly tips in favor of the movant; and the

movant demonstrates a substantial likelihood of success on the

merits.

~—os

Ol

lda

emphasized the need for confidentiality regarding

UDV’s “sessions” involving hoasca: “Some people do

not yet realize what confidentiality is and how careful

we need to be. People should not be talking publicly

anywhere about our sessions, where we have them and

who attends them.” When UDV attempted to grow

psychotria viridis and banisteriopsis caapi* in the

United States, it imported the seeds and plants “clan-

destinely,” in the words used by UDV, and required its

members to sign confidentiality agreements to keep

their attempts secret. All of these actions by UDV

demonstrate a recognition that its importation and

eonsumption of hoasca violated the CSA. Likewise,

when the United States realized that UDV was im-

porting a preparation which contained DMT, it seized

that shipment and additional quantities of the prepara-

tion found in a search of Bronfman’s residence. Accord-

ingly, although UDV eventually sought a preliminary

injunction after the seizure of the hoasca, at all times

leading up to that event the record reveals that the

status quo was the enforcement of the CSA. Where one

party, here UDV, intentionally precludes a contest by

concealing material information, the status quo must be

determined as of the time all parties knew or should

have known all material information.

Although recognizing that UDV “acted in a some-

what clandestine manner in the course of importing the

hoasca and using it in its religious ceremonies,” Judge

Seymour nevertheless asserts that UDV’s importation

and use of hoasca is still the status quo because UDV’s

actions were “premised on its firmly held belief that

such religious activity was in fact protected from

8 These are the two plants utilized to brew hoasca.

l6a

government interference by its right to the free exer-

cise of its religion.” Opinion of Seymour, J., at 19 n.3. It

is odd, indeed, to assume that UDV thought its actions

were entirely lawful and protected by the Religious

Freedom Restoration Act (“RFRA”) or the First

Amendment, in light of the fact that all of its actions

were taken in secret. In any event, UDV’s reason for

doing what it was doing is irrelevant. It simply cannot

be the case that a party can establish the status quo in a

given case through secretive or clandestine activity.

There is enough natural incentive to manipulation in

events preceding litigation, and in litigation itself, with-

out providing judicial endorsement of surreptitious

conduct by wrapping it in a cloak of “status quo.” The

“last peaceable uncontested status existing between the

parties before the dispute developed,” 11A Wright &

Miller § 2948, at 136, is most surely the open and notori-

ous actions of the parties before the dispute. Here, it is

uncontested that the open and notorious actions of

UDV were a facade of compliance with the CSA. Thus,

_ the status quo in this case is the government’s enforce-

ment of the CSA.

What is most strange about the approach advocated

by Judge Seymour is its apparent reliance on the legal

rights of the parties in arriving at the status quo in this

case. Although disclaiming such an approach, Opinion

of Seymour, J., at 18, Judge Seymour specifically refer-

ences the parties’ legal rights in determining the status

quo in this case. /d. (“[WJe are faced with a conflict

between two federal statutes, RFRA and the CSA, plus

an international treaty, which collectively generate

important competing status quos.”). If the status quo is

both parties exercising their legal rights, but the

mutual and contemporaneous exercise of those rights is

17a

factually impossible, then the status quo must instead

be the exercise of legal rights by only one party. Judge

Seymour has not cited a single case to support the

assertion that status quo is determined by reference to

a party’s legal rights. Furthermore, such an approach

is clearly inconsistent with this Circuit’s historic under-

standing of what constitutes the status quo. SCFC

ILC, 936 F.2d at 1100 (“The status quo is not defined by

the [parties’] existing legal rights; it is defined by the

reality of the existing status and relationships between

the parties, regardless of whether the existing status

and relationships may ultimately be found to be in

accord or not in accord with the parties’ legal rights.”).

Finally, such an approach is completely unhinged from

the reality_of the parties’ extant relationship and from

the historic purposes of the preliminary injunction. For

instance, under Judge Seymour’s view of what consti-

tutes the status quo, it would not be determinative had

the government at first knowingly acquiesced in UDV’s

consumption of hoasca, believing that such consumption

was protected by RFRA, before eventually changing

tack and deciding to enforce the CSA. Instead, under

Judge Seymour’s approach, a relevant consideration for

status quo purposes is whether the government was at

all times legally entitled to enforce the CSA.‘ This is

4 Likewise, envision two parties to a long-term contract. For

a number of years both parties have operated with an identical

understanding of a key provision of the contract. Party A sud-

denly changes course and adopts a different view of the contract.

Facing irreparable injury, party B brings a declaratory judgment

action and seeks a preliminary injunction to preserve the status

quo pending resolution of the suit. Under Judge Seymour’s ap-

proach, the parties’ course of conduct would be irrelevant to the

question of status quo. Instead, the status quo would be deter-

mined by the merits of the parties’ legal assertions. That is, if the

18a

clearly a question of whether UDV is likely to prevail

on the merits. Thus, if a party is likely to prevail on the

merits, Judge Seymour would label that merits analysis

the status quo and then use it a second time to reduce

the movant’s burden on the final three preliminary

injunction factors. Such an approach lacks logical

moorings.

C. Conclusion

In sum, a heightened standard is consistent with the

historical underpinnings of the preliminary injunction

and is supported by persuasive policy rationales. Fur-

thermore, this court’s delineation in SCF'C ILC of three

types of disfavored preliminary injunction is well-rea-

soned and consistent with the historic purpose of the

preliminary injunction; SCFC ILC should not be com-

pletely abandoned simply because other courts have

chosen a different course. The status quo in this case is

the government’s enforcement of the CSA and com-

pliance with the Convention. Accordingly, when ana-

lyzing whether UDV is entitled to its requested preli-

minary injunction, this court will recognize that the

requested injunction is disfavored and more closely

scrutinize the request to assure that the exigencies of

the case support the granting of a particularly extra-

ordinary remedy.”

district court determined on a preliminary and incomplete record

that party A was likely to prevail on the merits, the status quo

would be party A’s revised interpretation of the contract. Such an

approach is surely at odds with any basic understanding of what

constitutes the status quo.

° As noted in the panel dissent, because the district court did

not recognize that the requested preliminary injunction would

change the status quo, it did not subject UDV’s request to any

special scrutiny. O Centro Espirita Beneficiente Uniao do Vegetal

“ ot oe lll

19a

Il.

Based heavily on the conclusion that UDV has

demonstrated a substantial likelihood of success on the

merits, a majority of the en banc court resolves that the

district court did not err in granting UDV a preli-

minary injunction. In contrast to the conclusions of the

majority, however, UDV has not demonstrated a sub-

stantial likelihood of success on the merits. First,

RFRA was intended to restore the compelling interest

test that existed before Employment Division v.

Smith, 494 U.S. 872 (1990). 42 U.S.C. § 2000bb(b)(1).

Employing that test, courts routinely rejected religious

exemptions from laws regulating controlled substances

and have continued to do so with RFRA. Second, one

only need look to the congressional findings set out in

the CSA to see that the United States carried its

burden of demonstrating that the prohibition against

importing or consuming hoasca furthers its compelling

interests in protecting the health of UDV members and

preventing diversion of hoasca to non-religious uses.

Finally, compliance with the Convention, which results

in international cooperation in curtailing illicit drug

trafficking, is certainly a compelling interest. The

record further indicates that absent strict compliance

with the Convention, the United States’ efforts in this

regard would be hampered.

v. Ashcroft, 342 F.3d 1170, 1190 (10th Cir. 2003) (Murphy, J., dis-

senting). The failure of the district court to apply the correct

standard in evaluating UDV’s request for a preliminary injunction

amounts to an abuse of discretion. SCFC ILC, Inc. v. Visa USA,

Inc., 936 F.3d 1096, 1100 (10th Cir. 1991). Nevertheless, because

the record on appeal is sufficiently well developed, it is appropriate

for this court to determine in the first instance whether UDV has

met the requisite burden. O Centro Espirita, 342 F.3d at 1190

(Murphy, J., dissenting) (citing SCFC ILC, 936 F.2d at 1100).

20a

Quite aside from the question of whether UDV has

demonstrated it is substantially likely to prevail on the

merits, UDV has not demonstrated its entitlement to a

preliminary injunction. In connection with the risk to

the health of UDV members and the risk to the public

from diversion of hoasca, the district court found the

evidence respectively “in equipoise” and “virtually bal-

anced.” The district court did not proceed to even

address the harm to the government and the public

interest resulting from violations of the Convention

necessitated by its injunction. With the evidence in this

state, UDV has not carried its burden of demonstrating

that the third and fourth preliminary injunction factors

—that the threatened injury to it outweighs the injury

to the United States under the preliminary injunction

and that the injunction is not adverse to the public

interest—weigh in its favor thereby justifying eve” a

preliminary injunction that does not alter the status

quo. Superimposing the more appropriate heightened

scrutiny for a disfavored injunction-altering the status

quo upon the evidence in this case renders the pre-

liminary injunction even more decidedly erroneous.

A. Substantial Likelihood of Success on the Merits

1. Controlled Substances Act

RFRA was never intended to result in the kind of

case-by-case evaluation of the controlled substances

laws, and the scheduling decisions made pursuant to

those laws, envisioned by the majority. In light of the

specific findings set out in the CSA with regard to the

drug at issue here, it is particularly improper for the

court to assume such a function in this case. This is

true even though limited religious use of another drug,

peyote, has been allowed pursuant to statute, 42 U.S.C.

§ 1996a, and before that, pursuant to regulation, 21

a —

=e | Oe tN ee Bi Mm

2la

C.F.R. § 1307.31. Apart from the fact that courts

should not direct the nation’s drug policy, courts simply

lack the institutional competence to craft a set of reli-

gious exemptions to the uniform enforcement of those

laws. In contrast to the majority’s conclusion, RFRA

does not compel such an approach.

To the extent that RFRA requires the government

to prove a compelling governmental interest and least

restrictive means concerning the ban on DMT, see 42

U.S.C. § 2000bb-1(b), the government need turn only to

express congressional findings concerning Schedule I

drugs. Congress specifically found that these drugs

have a high potential for abuse, have no currently ac-

cepted medical use, and are not safe for use under any

circumstances. 21 U.S.C. § 801(2) (“The illegal importa-

tion, manufacture, distribution, and possession and im-

proper use of controlled substances have a substantial

and detrimental effect on the health and general wel-

fare of the American people.”); id. § 801a(1) (“The Cong-

ress has long recognized the danger involved in the

manufacture, distribution, and use of certain psycho-

tropic substances . . . , and has provided strong and

effective legislation to control illicit trafficking and to

regulate legitimate uses of psychotropic substances in

this country.”). As to the specific drug at issue here,

DMT, Congress has found that it ho= high potentia! for

abuse and is not safe to consume e*: n under the super-

vision of medical personnel. /d. § 812(b)(1) (setting out

findings required for placement of a drug on Schedule

I); id. § 812(c), sched. I(c)(6) (including DMT, dimethy]l-

tryptamine, within Schedule I). These congressional

findings speak to a need for uniformity in administra-

tion given the serious problem of drug abuse in the

United States. See Smith, 494 U.S. at 905 (O’Connor,

22a

J., concurring); United States v. Israel, 317 F.3d 768,

771 (7th Cir. 2003).

RFRA ought not result in a case-by-case redeter-

mination of whether these findings are correct. Judge

McConnell takes the opposite position—that congres-

sional findings and scheduling (indeed Congress sched-

uled DMT) are not enough—stating “[s]uch generalized

statements are of very limited utility in evaluating the

specific dangers of this substance under these circum-

stances, because the dangers associated with a sub-

stance may vary considerably from context to context.”

Opinion of McConnell, J., at 25. Judge McConnell’s

opinion suffers from two serious defects.

First, the opinion is simply wrong in asserting that

the findings in the CSA are too generalized to have any

utility in determining whether the use of DMT in a reli-

gious setting is dangerous to the health of UDV

practitioners. On this point, Congress could not have

been more clear. DMT has a high potential for abuse

and is not safe to consume under any circumstances,

even including under the supervision of medical per-

sonnel. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6).

Second, under the approach advocated by Judge

McConnell, whether this court is talking about drinking

hoasca tea (ingesting DMT), smoking marijuana, or

shooting heroin (Judge McConnell’s example), the gov-

ernment will be required to investigate religious use

and determine whether the health risks or possibility of

diversion would outweigh free exercise concerns. Such

a reading of RFRA is difficult to reconcile with RFRA’s

purpose of merely reviving the pre-Smith compelling

interest test. 42 U.S.C. § 2000bb(b)(1). Congress

viewed that test as applied in prior federal rulings as “a

workable test for striking sensible balances between

ee Os a elles et ee Retell alten

23a

religious liberty and competing prior governmental

interests.” Jd. § 2000bb(a)(5). Employing that test,

courts routinely rejected religious exemptions from

laws regulating controlled substances. See United

States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989);

Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989);

Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); United

States v. Rush, 738 F.2d 497, 512-13 (1st Cir. 1984);

United States v. Middleton, 690 F.2d 820, 824 (11th Cir.

1982). They have continued to do so with RFRA. See

Israel, 317 F.3d at 772; United States v. Brown, No.

95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995)

(per curiam); United States v. Jefferson, 175 F. Supp. 2d

1123, 1131 (N.D. Ind. 2001). Though these cases involve

marijuana, the same result should obtain in this case.°

Judge McConnell’s view of how RFRA operates

seems to overlook events leading up to the passage of

RFRA. It is certainly true, as Judge McConnell notes,

that RFRA was passed in response to the Supreme

6 Judge McConnell asserts that these precedents provide no

insight into the proper result in this case because the use of DMT

(presumably only that DMT consumed in the form of hoasca) is not

in widespread use and its sacramental use is “tightly circum-

scribed.” Opinion of McConrell, J., at 21-22. Judge McConnell’s

view of religious freedom under RFRA is novel and problematic.

Under his view, small religious groups are free to use “sacramental

drugs,” as long as those “sacramental drugs” are esoteric and are

not used too frequently. Once the religious group becomes too suc-

cessful at attracting adherents, its chosen “sacramental drug”

becomes popular with the public at large, or it decides that its sac-

rament must be consumed too frequently, the government’s inter-

est becomes paramount. Unfortunately, he cites nothing from the

legislative history of RFRA or from pre-Smith law to support the

notion that the government has a lesser interest in regulating the

sacramental drug use of small religious groups than it does in

regulating the sacramental drug use of larger religious groups.

24a

Court’s decision in Smith and that Smith did happen to

involve the sacramental use of peyote. Opinion of

McConnell, J., at 21 (“{TJhe impetus for enactment of

RFRA was the Supreme Court’s decision in a case in-

volving the sacramental use of a controlled sub-

stance.”). Judge McConnell is wrong to imply, however,

that Congress intended to alter the ultimate outcome of

that case (states may, consistent with the constitution,

prohibit all uses, both religious and non-religious, of

peyote), as opposed to altering the analytical model set

out in that case (no right in the Free Exercise Clause to

avoid neutral laws of general application). Opinion of

McConnell, J., at 21-23. A review of the findings accom-

panying RFRA makes clear that Congress was con-

cerned with the latter, not the former.’ The procedural

‘The Congressional findings accompanying RFRA provide as

follows:

The Congress finds that—

(1) the framers of the Constitution, recognizing free exercise

of religion as an unalienable right, secured its protection in the

First Amendment to the Constitution;

(2) laws “neutral” toward religion may burden religious exer-

cise as surely as laws intended to interfere with religious

exercise;

(3) governments should not substantially burden religious

exercise without compelling justification;

(4) in Employment Division v. Smith, 494 U.S. 872 (1990) the

Supreme Court virtually eliminated the requirement that the

government justify burdens on religious exercise imposed by

laws neutral toward religion; and

(5) the compelling interest test as set forth in prior Federal

court rulings is a workable test for striking sensible balances

between religious liberty and competing prior governmental

interests.

aT — ee

25a

history preceding the enactment of RFRA does not

support Judge McConnell’s assertion that this court is

free to ignore the congressional findings in the CSA in

resolving UDV’s RFRA claim.

Equally unconvincing is Judge McConnell’s attempt

to minimize the government’s interest in the uniform

enforcement of the CSA. Unlike compulsory education

for an additional two years, the interest in enforcement

of the nation’s drug laws as prescribed by Congress is

one of the highest order. Wisconsin v. Yoder, 406 U.S.

205, 215 (1972) (“The essence of all that has been said

and written on the subject is that only those interests of

the highest order and those not otherwise served can

overbalance legitimate claims to the free exercise of

religion.”). It directly affects the health and safety of

American citizens. Unlike the protection of bald and

golden eagle populations, the regulation of controlled

substances can mean the difference between human life

and death, and a court should not be second-guessing

legislative and administrative determinations concern-

ing drug scheduling based upon the record we have in

this case. See United States v. Szycher, 585 F.2d 443,

444-45 (10th Cir. 1978); see also Touby v. United States,

500 U.S. 160, 162-163 (1991) (discussing time-consuming

procedural requirements involved in drug scheduling).

For these reasons, Judge McConnell’s reliance on

Yoder and Hardman is simply misplaced. Opinion of

McConnell, J., at 23-24, 44-45.

Judge McConnell is likewise wrong to assert that the

Attorney General has the raw power to grant religious

exemptions from the Controlled Substances Act under

the guise that it “is consistent with public health and

42 US.C. § 2000bb(a).

26a

safety.” 21 U.S.C. § 822(d) (waiving registration re-

quirements for certain manufacturers, distributors and

dispensers if consistent with public health and safety);

Olsen, 878 F.2d at 1466 app. (DEA Final Order) (“There

is no mechanism for an exemption to scheduling for

religious purposes.”). The government’s regulatory

exemption for peyote, 21 C.F.R. § 1307.31, later enacted

by statute, 42 U.S.C. § 1996a, was at all times a product

of congressional will. See Rush, 738 F.2d at 513 (noting

the “sui generis legal status of the American Indians”).

The panel opinion recognized this when it rejected an

equal protection argument that because the Native

American Church’s use of peyote is protected, so too

should be the use of hoasca. See O Centro Espirita

Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d

1170, 1186 n.4 (10th Cir. 2003). The panel relied upon

Peyote Way Church of God v. Thornburgh, 922 F.2d

1210, 1216 (5th Cir. 1991), which held that an exemption

for the Native American Church members to use

peyote was rationally related to the government’s trust

responsibility to preserve Native American culture. To

read the exemption for the Native American Church as

an indication that Congress and the Executive have not

precluded “a particularized assessment of the risks

involved in specific sacramental use” of controlled sub-

stances, Opinion of McConnell, J., at 25-27, proves too

much—the concurring opinion can point to no other

controlled substance receiving like treatment.

The CSA envisions careful scheduling of substances.

See 21 U.S.C. § 811(c) (listing eight factors which Attor-

ney General must consider before adding or removing a

substance from schedules); id. § 812(b) (findings neces-

sary for adding a substance to a schedule); id. § 811(a)

(requirement of notice and a hearing before Attorney

* ON a CT es SN

27a

General may add or remove a substance from schedule).

It also envisions medical and scientific uses of con-

trolled substances in the public interest and consistent

with public health and safety; “[njeither manufacturing,

distribution or dispensing contemplates the possession

of controlled substances for other than legitimate medi-

cal or research purposes. ” Olsen, 878 F.2d at 1466 app.

(DEA Final Order); see also 21 U.S.C. § 823(a)-(b).

Finally, the CSA allocates the burden of production in

favor of the government: in any proceeding brought by

the government under Title 21, the burden of going

forward with evidence of any exemption or exception

falls on the person claiming its benefit. 21 U.S.C.

§ 885(a)(1) (government is not required to negative any

exemption or exception).

The careful approach of the CSA should be con-

trasted with that of this court. Although this court

recognizes that “the interests of the government as well

as the more general public are harmed if the govern-

ment is enjoined from enforcing the CSA against the

general importation and sale of street drugs, or from

complying with the treaty,” it then characterizes this

case as one “about importing and using small quantities

of a controlled substance in the structured atmosphere

of a bona fide religious ceremony.” Opinion of Seymour,

J., at 22-23. Can the free exercise of religion under

RFRA really turn on whether the adherent has a reli-

gious affinity for street drugs or more esoteric ones?*

8 As noted above, Judge McConnell suggests that it can. Ac-

cording to his opinion, the strength of the government’s interest in

avoiding diversion of a controlled substance and enforcing the CSA

will vary under RFRA depending on how esoteric the drug is, how

often the drug is taken as a sacrament, the size of the religious

group, and whether the drug is consumed in a traditional or non-

28a

In light of the congressional purpose behind RFRA

of reinstating the pre-Smith compelling interest test,

42 U.S.C. § 2000bb(b)(1), the routine rejection of reli-

gious exemptions from drug laws in the pre-Smith era,

and the congressional findings undergirding the place-

ment of DMT among the most dangerous and addictive

of drugs (i.e., Schedule I substances), UDV has failed to

demonstrate that it is likely to succeed on the merits of

its claim that RFRA entitles it to freely import and

dispense hoasca.

2. United Nations Convention on Psychotropic Sub-

stances

The United States argues convincingly that a preli-

minary injunction requiring it to violate the Convention

traditional fashion. Opinion of McConnell, J., at 21-22, 27-28. With

regard to this particular case, Judge McConnell presumes that in

proscribing DMT Congress-was only concerned with it being taken

intravenously or being inhaled, not with oral ingestion. Jd. at 27.

No evidence supports this. In United States v. Green, 548 F.2d

1261 (6th Cir. 1977), a DEA chemist qualified as an expert witness

testified to the hallucinogenic effects of DMT and its similarity in

this respect to LSD, its dangerousness, and potential for abuse.

Id. at 1269; see also People v. Saunders, 543 N.E.2d 1078, 1080 (II).

App. Ct. 1989) (psychiatrist testimony that DMT is an hallucinogen

and similar to LSD). Though the court reversed the conspiracy to

manufacture convictions in Green because it found that such testi-

mony had minimal probative value and was prejudicia] concerning

the conspiracy charge, the court noted that “[sJuch facts may be

highly relevant is assessing the need for controlling the drug.”

Green, 548 F.2d at 1270. Other DMT prosecutions may be found in

United States v. Ling, 581 F.2d 1118 (4th Cir. 1978); United States

v. Noreikis, 481 F.2d 1177 (7th Cir. 1973); United States v. Moore,

452 F.2d 569 (6th Cir. 1971). It is also noteworthy that New

Mexico proscribes possession and possession with intent to distri-

bute DMT (dimethyltryptamine). See N.M. Stat. Ann. §§ 30-31-

6(C (6), 30-31-20(B), 30-31-22(D).

29a

could seriously impede its ability to gain the coopera-

tion of other nations in controlling the international

flow of illegal drugs. See 21 U.S.C. § 801a(1) (“Abuse of

psychotropic substances has become a phenomenon

common to many countries . . . and is not confined to

national borders. It is, therefore, essential that the

United States cooperate with other nations in establish-

ing effective controls over international traffic in such

substances.”).? The district court erroneously con-

cluded that the Convention did not cover hoasca.

Judge McConnell does not appear to directly address

the merits of the district court’s conclusion, instead con-

cluding that the government has failed to carry its

burden under RFRA of demonstrating narrow tailor-

ing. Opinion of McConnell, J., at 29-33. Judge Sey-

mour, on the other hand, takes an entirely different

tack. In her separate opinion, she asserts that because

the Convention includes a provision allowing “signatory

® As was true of the panel majority, Judge Seymour asserts

that the Convention “must be read in light of RFRA and the reli-

gious use of the controlled substance here.” Opinion of Seymour,

J., at 24 & n.5 (citing O Centro Espirita, 342 F.3d at 1183-84). As

noted in the panel dissent, such an assertion could be read for the

following two disturbing propositions: (1) the government’s inter-

est in complying with its obligations under the Convention is not

compelling because these obligations conflict with the govern-

ment’s obligations under RFRA; and (2) because RFRA was en-

acted after the Convention was ratified, the Convention is nullified

to the extent it conflicts with RFRA. O Centro Espirita, 342 F.3d

at 1191 n.4 (Murphy, J., dissenting). The dissent further explained

why both propositions are incorrect as a matter of law. Jd. Unfor-

tunately, Judge Seymour has carried the panel’s error forward,

again intimating that the terms of the Convention have somehow

been amended by RFRA. For those reasons set out in the panel

dissent, Judge Seymour is wrong in asserting that RFRA has

displaced or amended the Convention. /d.

30a

nations to seek an exemption from the treaty for indige-

nous plants containing prohibited substances ‘tradition-

ally used by certain small, clearly determined groups in

magical or religious rites,” the government’s “argu-

ment that it will be significantly harmed by a preli-

minary injunction temporarily restraining it from en-

forcing the treaty against the UDV does not ring en-

tirely true.” Opinion of Seymour, J., at 25. The district

court, Judge McConnell, and Judge Seymour are all

incorrect.

For those reasons set out in the panel dissent, heasca

is a preparation containing a Schedule I substance

covered by the Convention. O Centro Espirita, 342

F.3d at 1192-93 (Murphy, J., dissenting). Article 7 of

the Convention obligates signatory nations to prohibit

all uses of Schedule I substances and to prohibit the

import and export of those substances. Convention,

supra, at 1, art. 7, 32 U.S.T. 543. The congressional

findings in 21 U.S.C. § 801a(1) make clear that inter-

national cooperation and compliance with the Conven-

tion are essential in providing effective control over the

cross-border flow of such substances. In addition, the

record contains the declaration of Robert E. Dalton, a

State Department lawyer for the Treaty Affairs Office.

Dalton’s declaration asserts that the need to avoid a

violation of the Convention is compelling and that a vio-

lation of the Convention would undermine the United

States’ role in curtailing illicit drug trafficking. It

appears that the Dalton declaration is unopposed. In

light of the plain meaning of the Convention, the con-

gressional findings on the importance of cooperation,

and the Dalton declaration, UDV has not demonstrated

a substantial likelihood that it will prevail on the merits

of its RFRA claim.

3la

In his separate opinion, Judge McConnell asserts that

(1) the government deprived this court of “evidence”

necessary to interpret the Convention and (2) the gov-

ernment failed to demonstrate that strictly prohibiting

the import and consumption of hoasca is the least

restrictive means of furthering its interest in complying

with the Convention. Opinion of McConnell, J., at 29,

30-33. Judge McConnell’s assertions are flawed in

several respects.

First and foremost, the interpret~tion of the Con-

vention is a question of law. See, e.g., Ehrlich v. Am.

Airlines, Inc., 360 F.3d 366, 370 (2d Cir. 2004) (holding

that proper interpretation of an international treaty is a

question of law subject to de novo review); United

States v. Garrido-Santana, 360 F.3d 565, 576-77 (6th

Cir. 2004) (same); United States v. Al-Hamdi, 356 F.3d

564, 569 (4th Cir. 2004) (same); Smythe v. United States

Parole Comm’n, 312 F.3d 383, 385 (8th Cir. 2002)

(same). Here, the district court unequivocally con-

cluded that the Convention did not apply to hoasca.

For those reasons set out in the panel dissent, the

district court’s legal conclusion is erroneous. O Centro

Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting).

That the district court did not hold a hearing on this

question, does not foreclose this court from recognizing

the district court’s legal error. When interpreting a

treaty this court must “first look to its terms to deter-

mine its meaning.” United States v. Alvarez-Machain,

504 U.S. 655, 663 (1992). As set out in the panel dissent,

and as elaborated supra, the plain language of the Con-

vention makes clear that all signatories must prohibit

theinternational trafficking of hoasca.

Based on its erronecus legal conclusion that the Con-

vention did not apply to hoasca, the district court

32a

precluded the government from presenting evidence

regarding the Convention at the evidentiary hearing.

In a letter to the parties, the district court indicated as

follows: “I have reviewed the parties’ briefs on

[UDV’s] Motion for Preliminary Injunction. I believe

that it will be necessary to hold an evidentiary hearing

on the following factual issues: 1) the health risks as-

sociated with the ceremonial use of hoasca; 2) the

potential for diversion of hoasca to non-ceremonial use.

os .” Of course, as noted above, whether hoasca is

covered by the Convention is a question of law for the

court to decide, not a question of fact like those ques-

tions identified by the district court in its letter. Thus,

it is strange to assert, as does Judge McConnell, that it

would be premature to reach this issue because the

district court did not hold an evidentiary hearing on the

matter. Opinion of McConnell, J., at 29.

Nor is it altogether accurate to assert that it was the

defendants who opposed the introduction of evidence on

this question at the hearing. Jd. Judge McConnell

asserts that UDV “attempted to present evidence re-

garding the interpretation of the Convention by the

International Narcotics Control Board [(“INCB”)], the

international enforcing agency, including a letter by the

Secretary of the Board stating that hoasca is not con-

trolled under the Convention.” Jd. (emphasis added).

Judge McConnell makes it appear that UDV sought to

produce multiple items of evidence, only one component

of which was a letter from the Secretary of the INCB.

In fact, UDV merely sought to question a witness about

the contents of Plaintiff’s Exhibit 54, a letter from the

Secretary of the INCB. That letter had already been

admitted into evidence and used by both UDV and the

government in questioning witnesses regarding the

en a Le Be OO eS ee

|

33a

efficacy of the control measures for Schedule I and II

drugs under the Convention. Furthermore, as noted by

the government below, there are serious questions as to

the relevance of the Secretary’s opinion regarding

whether hoasca is covered by the Convention.

Judge McConnell further asserts that based on a

narrow objection by the United States, the district

court excluded the evidence, depriving this court of

“interpretive history” necessary to a resolution of this

appeal.” It is far from clear, however, that Plaintiff’s

Exhibit 54 is as important as Judge McConnell would

assume, since neither party saw fit to include it in the

record on appeal. Nor is it accurate to assert that the

sole basis of the government’s objection to the line of

questioning was that the district court had not asked

the parties to present evidence on the issue. Opinion of

McConnell, J., at 29. Instead, the government objected

on multiple grounds: (1) the questions were beyond the

scope of redirect examination; (2) the letter was legally

irrelevant; (3) the district court had previously in-

formed the parties that no evidence would be taken on

the Convention; and, most importantly, (4) whether

hoasca is covered by the Convention was a legal

” According to Judge McConnell,

The government objected on the ground that “We are now in-

troducing testimony about whether or not ayahuasca is con-

trolled under the International Convention. That is not one of

the issues in this hearing.” After discussion, the district court

forbade the questioning on the subject, and plaintiffs were un-

able to introduce evidence on the interpretation of the Conven-

tion by the Board. For this Court to attempt to interpret a

complex treaty on the basis of its “plain language,” without the

benefit of its interpretive history, would be premature.”

Opinion of McConnell, J., at 29 (record citation omitted).

34a

question for the court to decide.’ Taken in-context,

then, it is not appropriate to hold the government re-

sponsible, as does Judge McConnell, for the district

court’s failure to hold a hearing on whether compliance

with the Convention is a compelling governmental

interest. /d.

'! During the discussion on whether the questioning should be

allowed, counsel for the government stated as follows:

Objection, Your Honor. We are now introducing testimony

about whether or not ayahuasca is controlled under the Inter-

national Convention. That is not one of the issue in this

hearing.

Your Honor, the person who introduced that exhibit was

plaintiffs’ counsel, who introduced it for the purpose of talking

about the effectiveness of controls. I also was talking about

the effectiveness of Schedule I and II controls. I did not talk

about the applicability of the treaty to ayahuasca. That is not

one of the issues here. That is a legai issue, and that is up to

Your Honor to decide. . . .

Your Honor, we did not just now talk about which sub-

stances were controlled in the Convention. When I went

through this report, it was to rebut statements [plaintiffs’

counsel] made from the report yesterday about the effective-

ness of the controls. That is the only reason.

The reason why we should not be talking about this today is

because it is not an opinion of the INCB. The secretary of the

board is not a voting member. The government does not agree

or accept that the INCB doesn’t control ayahuasca under the

Convention. The INCB does not have the authority to deter-

mine what is controlle under the Convention. This is an en-

tirely separate issue. It’s a legal issue for another day. And

this does not relate to diversion or anything I talked about just

now.

Se ee

35a

_—

Nor is it appropriate to fault the government for

failing to demonstrate that strictly prohibiting the

importation and consumption of DMT, in the form of

hoasca, is the least restrictive way to further the gov-

ernment’s interest in complying with the Convention.

Opinion of McConnell, J., at 30. The problem, of course,

is that the district court short-circuited the govern-

ment’s ability to present evidence on this particular

question when it concluded that the Convention did not

apply to hoasca. Under these circumstances, it seems

strange to punish the government for this purported

evidentiary deficiency. As we have it, the Dalton dec-

laration is the only evidence in the record on the ques-

tion and is uncontradicted. With the record in this

state, UDV has failed to demonstrate a substantial

likelihood of success on the merits.”

In response, Judge McConnell envisions an elaborate

process whereby, to demonstrate narrow tailoring, the

government is obligated to request that DMT be re-

moved from the schedule of drugs covered by the Con-

vention. Opinion of McConnell, J., at 30-31. That is,

until the government seeks to have DMT removed from

coverage by the Convention, it cannot demonstrate that

“strict” prohibitions against the import of DMT are the

least restrictive means of advancing its interest in com-

plying with the Convention. It is worth noting at the

outset that this argument is not advanced on appeal by

12 Even if Judge McConnell were correct that the record is too

truncated to reach a decision on whether the government has ad-

vanced a compelling interest in complying with the Convention and

that prohibition on the import and consumption of hoasca is the

most narrowly tailored means of advancing that compelling inter-

est, however, the more appropriate course of action would be to

remand to the district court for further development of the record.

36a

UDV. In any event, Congress has specifically found

that DMT is a highly dangerous and addictive sub-

stance. It is difficult to see how asking that DMT be

removed from the schedule of drugs covered by the

Convention advances the government’s interests in any

way. To the extent that Judge McConnell is implying

that the government could seek an exemption allowing

importation into and consumption of DMT in the United

States, whether or not that DMT came in the form of

hoasca, while the remaining signatories remain bound

by the terms of the Convention to prevent international

trafficking in DMT, his assertion finds absolutely no

support in the language of Article 2. There is simply

nothing in that particular Article allowing signatory

nations to pick and choose which of the Scheduled drugs

they will criminalize. It is certainly true that signatory

nations can object to the scheduling of new psychotro-

pic drugs and can ask that drugs already scheduled be

reclassified. Opinion of McConnell, J., 30-31. Those

provisions do not, however, allow for a single nation

opt-out; instead, they establish the schedule of drugs

that all signatory nations will be obligated to criminal-

ize. It is incongruous to obligate the government to

seek to remove DMT from the coverage of the Conven-

tion in order to demonstrate that its efforts to restrict

the importation and consumption of DMT are the least

restrictive means of complying with the Convention.

Judge Seymour does not endorse the district court’s

conclusion that the Convention does not apply to

hoasca. Instead, she asserts that the availability of the

exemption in Article 32 of the Convention demon-

strates that no significant harm will flow to the govern-

ment from the injunction. Opinion of Seymour, J., at 24-

25; see also Opinion of McConnell, J., at 31-32 (asserting

De Dea Melt creole :

37a

that the failure of the government to seek a reservation

under Article 32(4) on behalf of UDV demonstrates the

government failed to prove that the strict prohibition

against the importation and consumption of hoasca is

the least restrictive means of furthering its interest in

complying with the Convention). What Judges Sey-

mour and McConnell fail to acknowledge, however, is

that the exemption set out in Article 32(4) allows signa-

tory nations to make a reservation as to all of the pro-

visions of Article 7, except for the provisions of Article 7

prohibiting the international trafficking of psychotro-

pic substances. Article 32(4) specifically provides as

follows: :

A State on whose territory there are plants growing

wild which contain psychotropic substances from

among those in Schedule I and which are tradi-

tionally used by certain small, clearly determined

groups in magical or religious rites, may, at the time

of signature, ratification or accession, make reser- .

vations concerning these plants, in respect of the

provisions of article 7, except for the provisions

relating to international trade.

Convention, supra, at 1, art. 32(4), 32 U.S.T. 543 (em-

phasis added). In light of this very specific language, it

is not possible to treat the exemption set out in Article

32 as diminishing the significant injury to the gov-

ernment flowing from an injunction mandating that the

government allow the importation of hoasca.

B. Balance of Harms and Public Interest

For those reasons set out above, UDV has not

demonstrated a substantial likelihood of success on the

merits of its RFRA claim. This is especially true in

light of the heightened burden on UDV to demonstrate

38a

its entitlement to a preliminary injunction that upends

the status quo. Independent of the question of likeli-

hood of success on the merits, however, UDV has not

demonstrated that its harm outweighs the harm flow-

ing to the government as a result of the preliminary in-

junction or that the preliminary injunction is not

adverse to the public interest.

RFRA provides that once a person proves that a law

substantially burdens the exercise of religion, the gov-

ernment has the burden of going forward and of per-

suasion in proving that the law furthers a compelling

governmental interest and that the law as applied

is the least restrictive means of furthering that compel-

ling governmental interest. 42 U.S.C. §§ 2000bb-1(a),

2000bb-1(t(1)-(2), 2000bb-2(3). Though this is a de-

manding test, see City of Boerne v. Flores, 521 U.S. 507,

534 (1997), it seems particularly appropriate to insist

that a movant meet all elements of the preliminary in-

junction test because RFRA goes beyond the protec-

tions offered by the First Amendment. See Kikumura

v. Hurley, 242 F.3d 950, 955, 962 (10th Cir. 2001) (re-

quiring consideration of all preliminary injunction

elements with RFRA claim). In other words, RFRA is

not the First Amendment and UDV has no valid claim

that its First Amendment rights are being violated

given that the CSA is a neutral law of general appli-

cability. See Smith, 494 U.S. at 885; United States v.

Meyers, 95 F.3d 1475, 1481 (10th Cir. 1996). Given

evenly balanced evidence concerning the health risks of

DMT usage and its potential diversion, UDV cannot

satisfy its burden of showing that its injury outweighs

any injury to the government and that an injunction

would not be adverse to the public interest.

» a 228 es it ene a eb

39a

1. Controlled Substances Act

First and foremost, as set out above, Congress has

specifically found that the importation and consumption

of controlled substances is adverse to the public inter-

est. 21 U.S.C. §§ 801(2), 801a(1). Congress has specifi-

cally found that the drug at issue here, DMT, has

high potential for abuse and is not safe to consume

even under the supervision of medical personnel. /d.

§ 812(b)(1), (ce), sched. I(c)(6)."

Against this backdrop, the district court found that

the evidence was in equipoise as to the risk of diversion

of hoasca to non-religious purposes and the danger of

health complications flowing from hoasca consumption

18 Judge Seymour appears to assert that it is improper to rely

on these congressional findings in light of the passage of RFRA.

Opinion of Seymour, J., at 27 n.8 (“Judge Murphy relies heavily on

Congress’ specific findings that the importation and consumption

of controlled substances are adverse to the public interest . . .

while totally ignoring the immediate and strong reaction Congress

had to the Supreme Court’s decision in Employment Division v.

Smith, 494 U.S. 872 (1990).”). Judge Seymour’s assertion is flawed.

As the congressional findings accompanying RFRA make clear,

what Congress found offensive about Smith was its abandonment

of the compelling interest test with regard to laws neutral vo relig-

ion. 42 U.S.C. § 2000bb(a). None of the findings in § 2000bb(a), or

any other portion of RFRA, indicate that the interests protected

by the CSA are not compelling. In fact, there is no mention at all

of the CSA in § 2000bb(a). Judge Seymour has simply failed to ex-

plain how the findings set out in § 2000bb(a) minimize the magni-

tude of the interests identified by Congress in enacting the CSA.

Because RFRA requires that government conduct which burdens

religion be in furtherance of a compelling governmental interest,

id. § 2000bb-1(b)(1), and because the congressional findings accom-

panying the CSA bear on the question whether the governmental

interests at issue in this case are compelling, the congressional

findings accompanying the CSA are highly relevant.

40a

by UDV members. As noted above, both Judge Sey-

mour and Judge McConnell erroneously rely on this

finding to conclude that the United States has not car-

ried its burden of demonstrating that the restrictions in

the CSA against the importation and consumption of

hoasca further the United States’ compelling interests

and that, concomitantly, UDV is substantially likely to

prevail on the merits of its RFRA claim. Opinion of

Seymour, J., at 21; Opinion of McConnell, J., at 17-18.

The United States, however, has no such burden at the

third and fourth steps of the preliminary injunction

analysis. At these stages, it is UDV that must demon-

strate the requested preliminary injunction is not

adverse to the public interest and its harm outweighs

any harm to the government. Furthermore, because

the preliminary injunction UDV is requesting would

upset the status quo, it must show that the exigencies

of the case entitle it to this extraordinary interim relief

and that the balance of harms favors the issuance of an

otherwise disfavored interim remedy. In light of the

congressional findings noted above and the equipoised

nature of the parties’ evidentiary submissions, UDV

has not met its burden."

‘4 Judge Seymour seems to take comfort in the fact that the

preliminary injunction only temporarily precludes the government

from enforcing the CSA. See Opinion of Seymour, J., at 24. As

noted above, however, Congress has specifically found that the

consumption of DMT is unsafe even when consumed under medical

supervision and that the drug has a high potential for abuse. See

21 U.S.C. § 812(b)(1). UDV could not muster sufficient evidence to

demonstrate that consumption of DMT is safe or that there is no

risk of diversion. Although it is true that the preliminary injunc-

tion could be quickly lifted should the United States prevail on the

merits, such a course would not remediate any harm that might

occur to the members of UDV or the general citizenry from

4la

The United States suffers irreparable injury when it

is enjoined from enforcing its criminal laws. See New

Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S.

1345, 1351 (Rehnquist, Circuit Justice 1977). This in-

jury to the United States, which when coupled with

UDV’s failure of proof on the questions of diversion and

danger to UDV members prevents UDV from meeting

its burden under the third and fourth preliminary in-

junction factors, is exacerbated by the burdensome and

constant official supervision and oversight of UDV’s

handling and use of hoasca affirmatively required by

the injunction in this case. The district court’s prelimi-

nary injunction is eleven pages long and contains

thirty-six paragraphs; it modifies or enjoins enforce-

ment of a staggering number of regulations implement-

ing the CSA, with the result that the United States

must actually set about to aid UDV in the importation

of an unlimited supply of hoasca.” UDV has not carried

its burden of demonstrating that its injury, although

admittedly irreparable, sufficiently outweighs the harm

diverted hoasca while the preliminary injunction was in effect.

Judge Seymour’s approach thus seems to wholly discount those

risks that inhere in the preliminary injunction.

15 See, e.g., Preliminary Injunction para. 13 (giving UDV right

to refuse to allow inspections of any items, pending a determina-

tion by the district court, if UDV concludes such an inspection

would violate its right to freedom of association); id. para. 15

(directing United States and UDV to “arrive at a mutually accept-

able means of disposal of any hoasca that must be disposed of”); id.

para. 24 (setting out time frames within which United States must

conduct inspections); id. para. 25 (requiring United States to expe-

dite UDV applications to import and distribute hoasca); id. para. 29

(seriously limiting circumstances under which Unite2 States can

revoke UDV’s registration to import and distribute hoasc~); id.

para. 35 (requiring United States to designate person or small

group of persons to act as liaison with UDV).

42a

to the government so as to warrant interim relief that

alters the status quo pending a determination of the

merits."

16 In concluding that the injunction in this case is prohibitory

rather than mandatory, Judge Seymour makes much of the fact

that many of the provisions in the preliminary injunction were

added at the government’s insistence. Opinion of Seymour, J., at

16-17. This, however, over-simplifies the procedural history and

thereby belies the actual process by which the burdensome pro-

visions found their way into the district court’s preliminary injunc-

tion. After concluding that UDV was entitled to an injunction on

its RFRA claim, the district court directed the parties to submit

proposed forms of a preliminary injunction. When the parties

were unable to agree as to the form of the preliminary injunction,

UDV submitted a memorandum on the question. In that memoran-

dum, UDV proposed a limited regulatory scheme different and

independent from the regulations set out in the Code of Federal

Regulations governing Schedule I substances. In response, the

United States asserted that UDV remained bound by applicable

regulations relating to the lawful importation and distribution of

Schedule I substances because UDV had never lodged a proper

legal challenge to those regulations. The government thus as-

serted that although UDV had challenged restrictions on its use of

hoasca, it had not challenged generally applicable regulations

regarding the lawful importation, distribution, and possession of

Schedule I substances. Accordingly, the form of the preliminary

injunction submitted by the government required UDV to comply

with all applicable statutes and regulations to which UDV had

failed to lodge a legal challenge. Notably, no provision in the gov-

ernment’s proposed preliminary injunction required the govern-

ment to engage in a cooperative enterprise with UDV by setting

strict time limits within which the government was obliged to act,

required the government to negotiate with UDV over disposal of

hoasca, or required the government to designate a liaison to deal

directly with UDV. Accordingly, it is simply wrong to assert that

it was the government who requested the provisions in the preli-

minary injunction that it now challenges as burdensome. Further-

more, it is wrong to assert that the preliminary injunction entered

-

43a

Unfortunately, Judge Seymour’s separate opinion

could be read as shifting the burden to the government

to prove that its harm flowing from an injunction pro-

hibiting enforcement of the CSA outweighs the harm to

UDV and that the preliminary injunction is not adverse

to the public interest. Opinion of Seymour, J., at 24

(“As the UDV established to the district court’s satis-

faction, neither of the potential harms asserted by the

government are more likely than not to occur. Thus,

the balance is between actual irreparable harm to plain-

tiff and potential harm to the government which does

not even rise to the level of a preponderance of the

evidence.”). The problem with such an approach is that

even when a requested preliminary injunction does not

alter the status quo, the movant has the burden of

demonstrating, clearly and unequivucally, that it is

entitled to interim relief that is always extraordinary.

Dominion Video Satellite, Inc. v. Echostar Satellite

Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because

by the district court is wholly prohibitory. The provisions identi-

fied above are clearly mandatory in that they require the govern-

ment to take action outside of the normally applicable regulatory

framework for the lawful importation, distribution, and possession

of a substance containing DMT. As a consequence, the preliminary

injunction constructs a customized regulatory scheme for UDV

that differs from the regulatory scheme otherwise applicable to the

lawful importation, distribution, and possession of Schedule I sub-

stances. Accordingly, Judge Seymour is wrong in discounting the

magnitude of the harm to the government from the district court’s

eleven-page, thirty-six-paragraph preliminary injunction. Al-

though the preliminary injunction at issue here is subject to a

heightened standard because it alters the status quo, thus obviat-

ing the need to definitively determine whether the injunction as a

whole is mandatory or prohibitory, Judge Seymour certainly errs

in discounting the burdens imposed on the government as a result

of the district court's preliminary injunction.

d4a

this particular preliminary injunction does alter the

status quo, UDV must make an even more rigorous

showing, as set out above, of its entitlement to interim

relief. See supra at 9-10. With this in mind, it must be

noted that it is UDV that failed to show by a prepon-

derance of the evidence there was no risk of diversion

and no risk to the health of UDV members. The gov-

ernment has no such burden of proof at the third and

fourth stages of the preliminary injunction analysis. To

conclude that UDV satisfied its burden defies the

record and the district court’s findings that the evi-

dence is in equipoise.

Judge Seymour’s discussion of the balancing of the

harms flowing from enjoining enforcement of the CSA

is similarly unconvincing. UDV would certainly suffer

an irreparable harm, assuming of course that it is likely

to succeed on the merits of its RFRA claim. On the

other hand, the magnitude of the risk of harm to the

government is unquestionably substantial. Although

the harm identified by the government is a risk of

diversion and a risk of adverse health consequences to

members of UDV or to a member of the public who

obtains diverted hoasca, if the risk comes to fruition the

consequences could be deadly. As explained above,

UDV failed to demonstrate that there is no risk of

diversion or of adverse health consequences to UDV

members. As the district court’s findings demonstrate, ~

it is just as likely as not that hoasca will be diverted

and that members of UDV and the public will suffer

adverse health consequences. Cf. 21 U.S.C. § 812(b)(1),

(c), sched. I(c)(6) (finding that DMT is unsafe to con-

sume even under medical supervision). Both Judge

Seymour and Judge McConnell seriously undervalue

the magnitude of the risks identified by the gov-

45a

ernment in concluding that UDV’s actual harm out-

weighs the risks of harm identified by the government.

At its base, the concurring opinion of J udge McCon-

nell would convert RFRA into a 900-pound imi

injunction gorilla. According to Judge McConnell, the

third and fourth preliminary injunction factors have no

real play when RFRA is involved. Opinion of McCon-

nell, J., at 36-37 (“When the government fails to de-

monstrate its compelling interest in burdening a con-

stitutional right, courts routinely find that, in the

absence of a compelling justification for interference,

the balance of harms and public interest also favor pro-

tecting the moving party’s burdened rights.”). Thus,

according to Judge McConnell, once a party demon-

strates a substantial likelihood of success on the merits

ina RFRA case, the inquiry is complete. Jd. Other than

simply noting that Congress passed RFRA only to

restore the compelling interest test from Sherbert v.

Verner, 374 U.S. 398 (1963), Judge McConnell offers no

real support for his implicit proposition that RFRA

renders irrelevant each of the remaining preliminary

injunction factors.” Judge McConnell thus rewrites

RFRA so that it would now legislatively overrule de-

cades of preliminary injunction jurisprudence, some-

thing RFRA does not do expressly.

ad Judge McConnell does cite to a number of cases involving

the deprivation of a constitutional right. Opinion of McConnell, J.,

at 37-38. As noted above, both Judges McConnell and Seymour

seem to forget that the right at issue in this case is based on a con-

gressional enactment, not the Constitution. Furthermore. as noted

at length above, RFRA must be read in light of its historical con-

text. a merely restored the law to its pre-Smith state, a

state w under which courts routinely rejected religi

tions from generally applicable drug laws. ited

46a

Equally unconvincing is Judge McConnell’s assertion

that equitable considerations that might not carry the

day for the government at the likelihood-of-success-on-

the-merits stage are rendered irrelevant by RFRA at

the balancing-of-harms and public-interest stages.

Opinion of McConnell, J., at 36 (“[T}he dissent attempts

to make an end run around RFRA’s reinstatement of

strict scrutiny by repackaging all of the arguments that

would be relevant to the merits (where the presump-

tion of invalidity would clearly apply) as arguments

about the equities (where it is disregarded).”). The

preliminary injunction is, after all, an equitable remedy. —

Even where a movant demonstrates that it is sub-

stantially likely to prevail on the merits, a showing that

UDV has failed to make, there may very well be equita-

ble considerations counseling against the granting of

extraordinary relief prior to a final determination on

the merits. This is just such a case. Without regard to

whether UDV is substantially likely to prevail on the

merits, the evidence adduced before the district court

raises such serious questions about the adverse health

effects of hoasca, both as to UDV members and the

public at large, and about the consequences of forced

non-compliance with the Convention that interim

equitable relief is not appropriate in this case.

Nor does the Supreme Court’s recent decision in

Ashcroft v. ACLU, 124 S. Ct. 2783 (2004), support

Judge McConnell’s assertion that equitable considera-

tions are irrelevant under RFRA, once a movant has

demonstrated a substantial likelihood of success on the

merits. See Opinion of McConnell, J., at 38-40. Judge

McConnell cites the following passage from Ashcroft in

support of his proposition:

47a

As mentioned above, there is a serious gap in the

evidence as to the effectiveness of filtering software.

. . . . For us to assume, without proof, that filters

are less effective than COPA would usurp the Dis-

trict Court's factfinding role. By allowing the pre-

liminary injunction to stand and remanding for trial,

we require the Government to shoulder its full

constitutional burden of proof respecting the less

restrictive alternative argument, rather than excuse

it from doing so.

Opinion of McConnell, J., at 39-40 (quoting Ashcroft, 124

S. Ct. at 2794). Contrary to Judge McConnell’s asser-

tion, this passage simply does not relate in any fashion

respondents’ proposed less restrictive alternatives are

less effective than COPA.”).

To the extent that there is any meaningful discussion

in Ashcroft of the particular issue before this court,"

Ashcroft supports the approach set out in this opinion.

In concluding that the preliminary injunction should

s That is, whether equitable considerations might occasionally

preclude the grant of a preliminary injunction even though a

movant has demonstrated a likelihood of success on the merits.

48a

stand under the particular circumstances of that case,

the Ashcroft Court noted as follows:

[T]he potential harms from reversing the injunction

outweigh those of leaving it in place by mistake.

Where a prosecution is a likely possibility, yet only

an affirmative defense is available, speakers may

self-censor » ther than risk the perils of trial. There

is a potential for extraordinary harm and a serious

chill upon protected speech. The harm done from

letting the injunction stand pending a trial on the

merits, in contrast, will not be extensive. No prose-

cutions have yet been undertaken under the law, so

none will be disrupted if the injunction stands. Fur-

ther, if the injunction is upheld, the Government in

the interim can enforce obscenity laws already on

the books.

Ashcroft, 124 S. Ct. at 2794 (citation omitted). This pas-

sage indicates that “practical” considerations, including

considerations that might not carry the day at the

likelihood-of-success-on-the-merits stage, are neverthe-

less relevant when a court is undertaking a weighing of

the equities. /d. In this case, those practical considera-

tions most assuredly counsel against granting interim

relief to UDV. The record clearly indicates, and the

district court found, that it is just as likely as not that

UDV members will suffer adverse health consequences

as a result of the consumption of hoasca and that

hoasca will be diverted to the general pubiic. Further-

more, with the preliminary injunction in place, the gov-

ernment is left with no alternative avenues to further

the important public safety policies underlying the

CSA. This is in stark contrast to the situation in Ash-

croft, wherein the government could “in the interim

[continue to] enforce obscenity laws already on the

~

49a

books.” Jd. For those reasons set out above, this is

clearly one of those cases where equitable considera-

tions weigh heavily against the entry of a preliminary

injunction, even assuming UDV has demonstrated a

substantial likelihood of prevailing on the merits.

2. United Nations Convention on Psychotropic

Substances

As noted above, a preliminary injunction requiring

the United States to violate the Convention could

seriously impede the government’s ability to gain the

cooperation of other nations in controlling the inter-

national flow of illegal drugs. 21 U.S.C. § 801a(1)

(“Abuse of psychotropic substances has become a phe-

nomenon common to many countries . . . and is not

confined to national borders. It is, therefore, essential

that the United States cooperate with other nations in

establishing effective controls over international traffic

in such substances.”), Furthermore, the only evidence

in the record on this question, the Dalton declaration,

indicates the need to avoid a violation’ that would

undermine the United States’ role in curtailing illicit

drug trafficking.

Without regard to whether the declaration and con-

gressional findings are sufficient to carry the govern-

ment’s burden of demonstrating that absolute compli-

ance with the Convention is the least restrictive means

of advancing the government’s compelling interest, the

declaration, taken together with the congressional

findings, certainly bears on the question of harm to the

United States and the adversity of the preliminary

injunction to the public interest. These matters were

not even addressed by the district court. In light of the

declaration, the congressional findings, and the extant

status quo, UDV has simply not carried its burden of

50a

demonstrating that its interest in the use of sacramen-

tal hoasca pending the resolution of the merits of its

complaint outweighs the harm resulting to the United

States from a court order mandating that it violate the

Convention. Nor has UDV shown that such an injunc-

tion is not adverse to the public interest.

The court correctly reaffirms the central holding in

SCFC ILC that when a movant is seeking one of the

three historically disfavored types of preliminary in-

junctions, the movant must satisfy a higher burden. I,

therefore, join parts I, II, and III.A of the per curiam

opinion.

For those reasons set out above, UDV has failed to

make the strong showing necessary to demonstrate its

entitlement to a judicially ordered alteration of the

status quo pending the resolution of the merits of this

case. First, UDV has not demonstrated a substantial

likelihood of success on the merits. The government’s

assertion that the ban on the consumption of DMT/

hoasca is necessary to protect the health of UDV mem-

bers and to prevent diversion of a Schedule I psy-

chotropic drug to the general population is fully sup-

ported by the congressional findings set out in the CSA.

21 U.S.C. §§ 801(2), 801a(1), 812(b)(1), 812(c), sched.

I(c)(6). These same congressional findings also demon-

strate the need for uniformity in administration of the

drug laws. See Smith, 494 U.S. at 905-06 (O’Connor, J.,

concurring); /srael, 317 F.3d at 771. At the same time,

it is clear that Congress enacted RFRA to restore

the pre-Smith compelling interest test. 42 U.S.C.

§ 2000bb(a). Prior tu Smith, courts routinely rejected

religious exemptions from laws regulating controlled

substances. See supra at 19-20 (setting out pre-and

5la

post-RFRA cases rejecting religious exemptions from

neutrally applicable drug laws). There is simply noth-

ing in the legislative history of RFRA to indicate that it

was intended to mandate a drug-by-drug, religion-by-

religion judicial reexamination of the nation’s drug

laws. UDV has failed to demonstrate that it is substan-

tially likely to prevail on its claim that RFRA exempts

it from the prohibition against the consumption of DMT

set out in the CSA. UDV has likewise failed to demon-

strate that it is substantially likely to prevail on its

RFRA claim, when measured against the government’s

interest in complying with the Convention. Congress

specifically found that international cooperation is

necessary to stem the international flow of psychotropic

drugs. 21 U.S.C. § 80la(1). The Dalton declaration

demonstrates that an injunction forcing the United

States into non-compliance with the Convention could

undermine the United States’ efforts to obtain

international cooperation to control the cross-border

traffic in illegal drugs. Because UDV has failed to

demonstrate a substantial likelihood of success on the

merits, it is not entitled to a preliminary injunction.

Even setting aside the question of whether UDV is

substantially likely to prevail on the merits, UDV has

independently failed to carry its heavy burden of

establishing that the balance of harms and the public

interest favors the issuance of a preliminary injunction.

Setting aside the Convention for the moment and

considering these factors only in relation to the CSA,

UDV failed to establish entitlement to extraordinary

interim relief altering the status quo. The district court

found, as part of its analysis of likelihood of success on

the merits, that the evidence regarding risk of diver-

sion and harm to members of UDV was virtually

52a

balanceq-anc-in equipoise. In other words, the district

court found that it is just as likely as not that hoasca

will be diverted to the general public and that members

of UDV will suffer harm from the consumption of

hoasca. These findings make it clear that UDV failed

to muster sufficient evidence to demonstrate that the

balance of harms weighs clearly and unequivocally in its

favor and that the public interest clearly and unequivo-

cally favors the entry of a preliminary injunction. The

harm to the government and public interest is not, how-

ever, singularly related to the CSA. Harm to the gov-

ernment and the public interest resulting from the

court-ordered violation of the Convention remain unad-

dressed by UDV or the district court. Furthermore,

both Judge Seymour’s and Judge McConnell’s attempts

to minimize the significant harm flowing to the gov-

ernment as a result of its forced non-compliance with

the Convention are flawed. With the evidence of the

balance of harms and public interest in such a state,

UDV has utterly failed to meet its burden under the

third and fourth preliminary injunction factors.

I would reverse the district court’s entry of a

preliminary injunction. Because a majority of the court

concludes otherwise, I respectfully dissent from parts

III.B and IV of the per curiam opinion.

53a

Seymour, Circuit| Judge, concurring in part and

dissenting in part, joined in full by Tacna, Chief Judge,

PORFILIO, HENRY, BRISCOE, and LUCERO, Circuit

Judges, and in Part II by MCCONNELL and TYMKOVICH,

Circuit Judges.

Like a majority of my colleagues, I am persuaded

that the district court did not abuse its discretion in

granting the preliminary injunction in this case. I

respectfully dissent, however, from the majority’s con-

clusion that the movant for a preliminary injunction

must satisfy a heightened burden when the proposed

injunction will alter the status quo but the injunction is

not also mandatory.

It is well established that “(a] preliminary injunction

is an extraordinary remedy; it is the exception rather

than the rule.” GTE Corp. v. Williams, 731 F.2d 676,

678 (10th Cir. 1984). Its commonly asserted purpose is

to “preserve the relative positions of the parties until a

trial on the merits can be held.” Univ. of Texas v.

Camenisch, 451 U.S. 390, 395 (1981). See also 11A

CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE

AND PROCEDURE § 2947 at 123 (2d ed. 1995) (purpose of

preliminary injunction is to prevent non-movant from

taking unilateral action which would prevent court from

providing relief to the movant on the merits).

In making the equitable determination to grant or

deny a preliminary injunction, courts tend to balance a

variety of factors. We have stated generally that a

court will grant preliminary relief only if the plaintiff

shows “(1) a substantial likelihood of success on the

merits of the case; (2) irreparable injury to the movant

if the preliminary injunction is denied; (3) the

54a

threatened injury to the movant outweighs the injury

to the other party under the preliminary injunction; (4)

the injunction is not adverse to the public interest.”

Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001).

These factors provide guideposts for a court in its

attempt to minimize any harm that would result from

the grant or denial of preliminary relief. The manner

by which a court considers the factors, the relative

weight given to each, and the standards by which a

movant is required to prove them, are driven by the

special and unique circumstances of any given case.

As noted by Professor Dobbs:

[T]he gist of the standards is probably easy to un-

derstand in common sense terms even if the expres-

sion is imperfect: the judge should grant or deny

preliminary relief with the possibility in mind that

an error might cause irreparable loss to either

party. Consequently the judge should attempt to

estimate the magnitude of that loss on each side and

also the risk of error.

DAN B. Dopps, LAW OF REMEDIES § 2.11(2) at 189 (2d

ed. 1993) (emphasis added). American Hosp. Supply

Corp. v. Hospital Prods. Ltd., 780 F.2d 589 (7th Cir.

1986), epitomizes this approach, noting that when a

district court is

asked to decide whether to grant or deny a pre-

liminary injunction [it] must choose the course of

action that will minimize the costs of being mis-

taken. . . . If the judge grants the preliminary

injunction to a plaintiff who it later turns out is not

entitled to any judicial relief—whose legal rights

have not been violated—the judge commits a mis-

take whose gravity is measured by the irreparable

55a

harm, if any, that the injunction causes to the

defendant while it is in effect. If the judge denies

the preliminary injunction to a plaintiff who it later

turns out is entitled to judicial relief, the judge com-

mits a mistake whose gravity is measured by the

irreparable harm, if any, that the denial of the

preliminary injunction does to the plaintiff.

Id. at 593. Due to this inherently fluid, multi-faceted,

and equitable process, we review a district court’s

decision to grant or deny injunctive relief for abuse of

discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d

1096, 1098 (10th Cir. 1991). In so doing, we should keep

in mind that

the district judge had to act in haste, that he had to

balance factors which, though they can be related in

a neat formula, usually cannot be quantified, and

that in dealing with the parties and their witnesses

and counsel in the hectic atmosphere of a preli-

minary-injunction proceeding the judge may have

developed a feel for the facts and equities that re-

mote appellate judges cannot obtain from a tran-

script.

American Hosp. Supply Corp., 780 F.2d at 594-95.

Thus “it is not enough that we think we would have

acted differently in the district judge’s shoes; we must

have a strong conviction that he exceeded the per-

missible bounds of judgment.” Jd. at 595.

A.

In SCFC ILC, we held that movants requesting

certain preliminary injunctions must meet a heightened

standard instead of satisfying the ordinary preliminary

injunction test. We detailed that a party who seeks an

injunction which either changes the status quo, is

56a

mandatory rather than prohibitory, or provides the

movant with substantially all the relief he would

recover after a full trial on the merits, was required to

“show that on balance, the four [preliminary injunction]

factors weigh heavily and compellingly in his favor.”

SCFC ILC, Inc., 936 F.2d at 1099 (emphasis added).

We appear to be the only court which has adopted the

specific approach of carving out three distinct cate-

gories of disfavored injunctions. Other courts have

limited to two categories those preliminary injunctions

deserving special scrutiny: injunctions which are

mandatory or which provide the moving party with all

the relief it seeks from a full trial on the merits. See,

e.g.,In re Microsoft Corp. Antitrust Litig., 333 F.3d

517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban

Entm’t, 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New

Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v.

Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v.

United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980).'

! | disagree with Judge McConnell’s characterization of the

cases I have cited for the proposition that the other circuits limit

their categories of disfavored injunctions to those which are man-

datory and those which provide the movant with all the relief

afforded on the merits. McConnell, J., op. at 6n.4. As noted above,

no other circuit follows our approach of identifying three cate-

gories of disfavored injunctions. Courts which speak of applying

some form of heightened standard to preliminary injunctions that

alter the status quo specifically define those types of injunctions as

mandatory. See Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27,

33-34 (speaking broadly about applying a heightened standard to

preliminary injunctions that alter the status quo, id. at 33, but then

immediately defining with more specificity the two categories of

disfavored injunctions as those which are mandatory, and those

which provide all the relief sought on the merits, id. at 34); see also

In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir.

2003) (“Mandatory preliminary injunctions [generally] do not

57a

In order to bring our jurisprudence in closer accord

with these other circuits, and because I am convinced it

will cause less confusion to the parties and the district

court, I would limit our heightened standard to those

two categories of preliminary injunctions.

In doing so, I do not denigrate the general notion that

the purpose of a preliminary injunction is to preserve

the status quo between the parties pending a full trial

on the merits. But this general maxim should not be

taken merely at face value or become a goal in and of

itself. Rather, the very purpose of preserving the

status quo by the grant of a preliminary injunction is to

prevent irreparable harm pending a trial on the merits.

See, e.g., In re Microsoft, 333 F.3d at 525 (“The tradi-

tional office of a preliminary injunction is to protect the

preserve the status quo . . . .”) (alteration in original); Acierno v.

New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (“A party

seeking a mandatory preliminary injunction that will alter the

status quo bears a particularly heavy burden in demonstrating its

necessity.”); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980)

(“Mandatory preliminary injunctions do not preserve the status

quo and normally should be granted only in those circumstances

when the exigencies of the situation demand such relief.”); Ander-

son v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980) (“Man-

datory preliminary relief, which goes well beyond simply main-

taining the status quo pendente lite, is particularly disfavored.”)

(citations omitted). While Judge McConnell may disagree with the

manner by which I think courts should consider the question ef

status quo, it cannot be said I am advocating an approach that is

discordant from that employed by other courts. To the contrary,

by separating out and adding injunctions that alter the status quo

as a third category of disfavored injunctions, it is the majority that

is out of step. See generally DOUGLASS LAYCOCK, MODERN

AMERICAN REMEDIES 450 (3d ed. 2002); Thomas R. Lee, Preli-

minary Injunctions and the Status Quo, 58 WASH. & LEE L. REV.

109 (2001).

58a

status quo and prevent irreparable harm during the

pendency of a lawsuit ultimately to preserve the court’s

ability to render a meaningful judgment on the

merits.”); Matzke v. Block, 542 F. Supp. 1107, 1113 (D.

Kan. 1982) (“The purpose of a preliminary injunction is

two-fold: it protects the plaintiff from irreparable

injury and it preserves the court’s ability to decide the

case on the merits.”); 11A WRIGHT & MILLER, § 2947 at

121 (“a preliminary injunction is an injunction that is

issued to protect plaintiff from irreparable injury and to

preserve the court’s power to render a meaningful

decision after a trial on the merits”).

Given the essential role prevention of irreparable

harm plays in the grant of preliminary injunctive relief,”

district courts should consider the question of altered

status quo in light of how it impacts the balance of

harms between the parties and the public interest, as

well as considering what attendant institutional costs

may accompany the grant of such relief. As the Fifth

Circuit has said, “[i)f the currently existing status quo

itself is causing one of the parties irreparable injury, it

is necessary to alter the situation so as to prevent the

2 In the course of deciding whether to grant preliminary

injunctive relief, “courts have consistently noted that ‘bjecause a

showing of probable irreparable harm is the single most important

prerequisite for the issuance of a preliminary injunction, the mov-

ing party must first demonstrate that such injury is likely before

the other requirements for the issuance of an injunction will be

considered.” Dominion Video Satellite v. EchoStar Satellite

Corp., 356 F 3d 1256, 1260-61 (10th Cir. 2004) (quoting Reuters Ltd.

v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990), and

listing other cases). Without a showing of irreparable harm, there

exists no justification for granting the extraordinary remedy of

injunctive relief prior to trial because any other harm can be

compensated for by damages at the end of the trial.

59a

injury.” Canal Auth. of the State of Florida v. Calla-

way, 489 F.2d 567, 576 (5th Cir. 1974) (citations

omitted). Other courts echo this refrain, noting that

where preserving the status quo will perpetuate harm

against the moving party, an order altering the status

quo may be appropriate. See, e.g., Friends For All

Children v. Lockheed Aircraft Corp., 746 F.2d 816, 830

n.21 (D.C. Cir. 1984); Crowley v. Local No. 82, Furni-

ture & Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982),

reversed on other grounds, 476 U.S. 526 (1984); see also

11A WRIGHT & MILLER § 2948 at 133-35. For these

reasons, “(t]he focus always must be on prevention of

injury by a proper order, not merely on preservation of

the status quo.” Canal Auth., 489 F.2d at 576. Thus a

court’s examination of the status quo should occur

during the process of balancing the various interests

and harms among the parties and the public.

B.

Our circuit currently employs three different stan-

dards when granting preliminary injunctions. As a

base line, we have articulated that a party’s right to

injunctive relief must be “clear and unequivocal.” See

SCFC ILC Inc., 936 F.2d at 1098 (citing Penn v. San

Juan Hosp., 582 F.2d 1181, 1185 (10th Cir. 1975)). At

one end of the spectrum, we have applied SCFC ILC’s

“heavily and compellingly” language to injunctions re-

quiring heightened scrutiny. /d. at 1098-99. At the

other end, we have adopted a modified approach for the

“likelihood of success on the merits” aspect of the four

part preliminary injunction test for certain circum-

stances. Under this alternative approach, if the moving

party establishes that the last three factors of the test

are in its favor, the party may ordinarily satisfy the

first factor by “showing that questions going to the

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merits are so serious, substantial, difficult and doubtful

as to make the issue ripe for litigation and deserving of

more deliberate investigation.” Federal Lands Legal

Consortium v. United States, 195 F.3d 1190, 1195 (10th

Cir. 1999). Within this paradigm, and in accordance

with the principle that a preliminary injunction should

preserve the parties’ positions to prevent irreparable

harm and allow the court to make a meaningful decision

on the merits, the court’s focus properly remains on the

balance of relative harms between the parties.

In general, “[e}mphasis on the balance of [irreparable

harm to plaintiffs and defendants] results in a sliding

scale that demands less of a showing of likelihood of

success on the merits when the balance of hardships

weighs strongly in favor of the plaintiff, and vice

versa.” In re Microsoft, 333 F.3d at 526. Thus, the

more likely a movant is to succeed on the merits, “the

less the balance of irreparable harms need favor the

[movant’s] position.” Ty, Inc. v. Jones Group, Inc., 237

F.3d 891, 895 (7th Cir. 2001). And, alternatively, “if

there is only slight evidence that plaintiff will be in-

jured in the absence of interlocutory relief, the showing

that he is likely to prevail on the merits is particularly

important.” Canal Auth., 489 F.2d at 576-77. The

rationality of this approach is evident: where there is a

strong indication that the plaintiff is correct on the

merits, the less it is likely that the defendant will be

harmed by the issuance of a preliminary injunction;

where there is little likelihood a plaintiff will be ir-

reparably harmed, preliminary relief is unwarranted

unless it is virtually certain plaintiff will win on the

merits.

Given the special considerations and potential ad-

ministrative costs at stake when a court issues a man-

6la

datory preliminary injunction, we should more closely

scrutinize whether the irreparable harm to the movant

substantially outweighs any harm to the non-movant or

to the public interest. The movant should clearly show

the exigencies of the situation justify the rather un-

usual injunction. See Tom Doherty Assocs., 60 F.3d at

34 (“[A] mandatory injunction should issue only upon a

clear showing that the moving party is entitled to the

relief requested, or where extreme or very serious

damage will result from a denial or preliminary relief.”

(internal quotations omitted)); Anderson, 612 F.2d at

1114 (mandatory preliminary relief justified only where

“facts and law clearly favor the moving party” or where

“extreme or very serious damage will result”); Jn re

Microsoft, 333 F.3d at 525 (showing for preliminary

mandatory relief “must be indisputably clear”); Wetzel,

635 F.2d at 286 (mandatory preliminary injunctions

“should be granted only in those circumstances when

the exigencies of the situation demand such relief”).

Although a mandatory injunction should be granted

only where the moving party makes a strong showing

that all the preliminary injunction factors weigh in its

favor, we should abandon use of the “heavily and com-

pellingly” language employed in SCFC ILC, see 936

F.2d at 1098-99, which is not used by any other circuit.

In addition, because a party seeking the grant of a man-

datory preliminary injunction must make this stronger

showing, the party should not be able to rely on our

circuit’s modified likelihood of success on the merits

standard, even where the balance of harms favors the

movant. Rather, the movant for a mandatory prelimi-

nary injunction must also establish a substantial likeli-

hood of success on the merits. See Tom Doherty As-

socs., 60 F.3d at 33-34 (party seeking mandatory injunc-

62a

tion cannot rely solely on circuit’s relaxed likelihood of

success on merits standard); SCFC ILC, 936 F.2d at

1101 n.11 (applicant for disfavored injunction unlikely to

satisfy higher standard without proving likelihood of

success on merits).

The same is true for injunctions that provide the

movant with all the relief that could be obtained at trial.

See SCFC ILC, 936 F.2d at 1099 (applying heightened

standard to preliminary injunctions that provide the

movant with all relief that could be obtained at trial).

In this context, however, the

term “all the relief to which a plaintiff may be en-

titled” must be supplemented by a further require-

ment that the effect of the order, once complied with,

cannot be undone. A heightened standard can thus

be justified when the issuance of an injunction will

render a trial on the merits largely or partly mean-

ingless, either because of temporal concerns, say, a

case involving the live televising of an event for the

day on which preliminary relief is granted, or

because of the nature of the subject of the litigation,

say, a case involving the disclosure of confidential

information.

Tom Doherty Assocs., 60 F.3d at 35 (emphasis added).

See Prairie Band of Potawatomi Indians v. Pierce, 253

F.3d 1234, 1249 (10th Cir. 2001) (citing Tom Doherty

Assocs. for this proposition). For example, while the

preliminary injunction here may give the UDV all the

relief it would obtain after a full trial on the merits, the

district court’s erder can nonetheless be “undone”

should the UDV ultimately be unsuccessful at trial.

This situation is clearly different from the examples

listed in Tom Doherty Assocs. Moreover, the grant of a

63a

preliminary injunction in this case does not “make it

difficult or impossible to render a meaningful remedy,”

id., to the government. If the UDV does not prevail at

trial, the government will be able to enforce the CSA

against the church and its members and comply with

the Convention.

In sum, we should limit our categories of injunctions

requiring greater scrutiny to those which are man-

datory or which afford the movant all the relief it seeks

after a full trial on the merits, and abandon the use of

SCFC ILC’s “heavily and compellingly” language. In

addition, a party seeking an injunction requiring

greater scrutiny may not rely on our relaxed “success

on the merits” standard but must make a strong show-

ing that it has a likelihood of success on the merits and

that the balance of harms weighs in its favor. However,

I depart from my colleagues who hold that a heightened

standard should always be applied when the injunction

will change the status quo. Rather, district courts

should assess alteration of the status quo in light of its

impact on the balance of harms among the parties and

the public interest.

Turning to the question of whether the district court

properly granted the preliminary injunction to the

UDV, our court reviews the district court’s grant of

injunctive relief for abuse of discretion and “examine(s]

whether the district court committed error of law or

relied on clearly erroneous fact findings.” Walmer v.

U.S. Dep't of Defense, 52 F.3d 851, 854 (10th Cir. 1995).

We also give due deference “to the district court’s

evaluation of the substance and credibility of testimony,

affidavits, and other evidence. We will not challenge

that evaluation unless it finds no support in the record,

64a

deviates from the appropriate legal standard, or follows

from a plainly implausible, irrational or erroneous read-

ing of the record.” United States v. Robinson, 39 F.3d

1115, 1116 (10th Cir. 1994).

The district court focused the majority of its analysis

on whether the UDV could satisfy the likelihood of suc-

cess on the merits prong of the preliminary injunction

test. See Kikumura, 242 F.3d at 955 (listing elements

of preliminary injunction test). Because the govern-

ment did not dispute for the purpose of the injunctive

proceeding that its enforcement of the CSA and the

United Nations Convention on Psychotropic Sub-

stances (Convention or treaty) imposed a substantial

burden on the UDY’s sincere exercise of religion, the

UDV established a prima facie case of a RFRA vio-

lation. See id: at 960. To undercut this showing of

likelihood of success, the government had the burden of

establishing that “the challenged regulation furthers a

compelling interest in the least restrictive manner.”

See 42 U.S.C. § 2000bb-1(b); United States v. Meyers, 95

F.3d 1475, 1482 (10th Cir. 1996).

The government proffered three compelling inter-

ests—risks to the health of the UDV members by the

use of hoasca, risk of diversion of hoasca for non-relig-

ious purposes, and compliance with the Convention.

“Believing the Government’s strongest arguments for

prohibiting Uniao do Vegetal’s hoasca use to be health

and diversion risks, the district court did not ask the

parties to present evidence on the Convention at the

hearing.” O Centro Espirita Beneficiente Uniao Do

Vegetal v. Ashcroft, 342 F.3d 1170, 1183 (10th Cir. 2003).

After examining the parties’ evidence on the first two

issues, the court found the evidence to be in equipoise

for each. The court also decided the treaty does not ~

65a

cover hoasca. The court therefore concluded the

government had “failed to carry its heavy burden of

showing a compelling interest in protecting the health

of the UDV members using hoasca or in preventing the

diversion of hoasca to illicit use.” O Centro Espirita

Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp.

2d 1236, 1269 (D.N.M. 2002). Hence, the court ruled the

UDV had demonstrated a substantial likelihood of

success on the merits.

The district court then turned to the remaining

preliminary injunction factors and determined the UDV

satisfied each. The court found the UDV established

irreparable injury because its right to the free exercise

of religion was being impaired. With respect to harm to

the government and the balance of harms, the court

held that

in balancing the government’s concerns against the

injury suffered by the Plaintiffs when they are un-

able to consume hoasca in their religious cere-

monies, the Court concludes that, in light of the

closeness of the parties’ evidence regarding the

safety of hoasca use and its potential for diversion,

the scale tips in the [church’s] favor.

Id. at 1270. The court granted a preliminary injunction

to the UDV pending a decision on the merits.

The government contends that the preliminary in-

junction granted by the district court is mandatory and

changes the status quo, and that the district court erred

in failing to require the UDV to make a stronger show-

ing to succeed. I disagree. This case is unique in many

respects because it involves a clash between two fed-

eral statutes, one based in the First Amendment to the

Constitution and protecting an individual’s free exer-

66a

cise of religion and the other serving the important

governmental and public interests of protecting society

against the importation and sale of illegal drugs. This

case also serves as an example of how challenging it can

be to determine whether an injunction is mandatory as

opposed to prohibitory, or whether it alters the status

quo.

' Lam not persuaded the injunction here is mandatory.

Rather, it temporarily prohibits the government from

treating the UDV’s sacramental use of hoasca as un-

lawful under the CSA or the treaty. It also orders the

government not to

intercept or cause to be intercepted shipments of

hoasea imported by the UDV for religious use, pro-

secute or threaten to prosecute the UDV, its mem-

bers, or bona fide participants in UDV ceremonies

for religious use of hoasca, or otherwise interfere

with the religious use of hoasca by the UDV, its

members, or bona fide participants in UDV cere-

monies. ...

Aplt. br., Add. B at 2.

The government contends the injunction is manda-

tory because it includes “36 separate provisions requir-

ing specific affirmative action by the government to

facilitate the UDV’s use of hoasca.” Aplt. Supp. En

Banc br. at 20. In so arguing, the government fails to

acknowledge that the additional provisions were added

to the injunction by the district court in response to the

government’s insistence that the UDV be subject to

some form of governmental oversight in its importation

and use of hoasca. In large measure, the injunction’s

terms detail how the UDV must comply with the im-

portation and distribution regulations for controlled

—

67a

substances. The injunction outlines how the regula-

tions should be specifically construed regarding the

UDV and lists provisions from which the church should

be exempted. The injunction’s terms also make clear

that while the UDV is required to comply with the

regulations, the government cannot rely on potential

technical violations of the regulations by the church, or

an overly broad reading of the regulations, to bar the

UDV’s importation of hoasca. While the order’s terms

do not exactly mirror those proposed to the court by

the government, nor are they nearly as broad as the

government might have hoped, they nonetheless are in

the injunction because the government demanded the

UDV be subject to some form of regulatory control in

the course of importing and distributing hoasca. In this

regard, the order’s terms outline how the church must

comply with the regulations while still protecting the

church’s importation and use of its sacrament.

Similarly, while some of the injunction’s provisions

mandate that the parties take specific actions, the order

is nonetheless properly characterized as prohibitory.

Read as a whole, the additional terms in the order man-

date that the UDV comply with specific drug importa-

tion laws, while the provisions conversely permit the

government to perform its regulatory functions with

respect to the importation of controlled substances, up

to but not including barring the UDV’s use of hoasca

for sacramental purposes. However, the overall effect

of the injunction is to prohibit the government from

enforcing the CSA and the treaty against the UDV.

There is no doubt that determining whether an in-

junction is mandatory as opposed to prohibitory can be

vexing. In Abdul Wali v. Coughlin, the court recog-

nized this difficulty but emphasized that

68a

[t]he distinction between mandatory and prohibi-

tory injunctions, however, cannot be drawn simply

by reference to whether or not the status quo is to

be maintained or upset. As suggested by the

terminology used to describe them, these equitable

cousins have been differentiated by examining

whether the non-moving party is being ordered to

perform an act, or refrain from performing. In

many instances, this distinction is more semantical

than substantive. For to order a party to refrain

from performing a given act is to limit his ability to

perform any alternative act; similarly, an order to

perform in a particular manner may be tantamount

to a proscription against performing in any other.

Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir.

1985), overruled on other grounds by O’Lone v. Estate

of Shabazz, 482 U.S. 342, 349 n.2 (1987). In determining

whether to define the contested-injunction in the case

before it as mandatory or prohibitory, the court in

Abdul Wali looked to the gravamen of the plaintiff’s

complaint and found it did indeed seek to prohibit

action on the part of the defendant, even though one

could reasonably argue the injunction changed the

status quo. /d. at 1026. So too in the case before us.

The gravamen of the church’s claim is to stop the gov-

ernment from enforcing the CSA against it and infring-

ing on the use of its sacrament. Read in this light, the

overall tone and intent of the order remains prohibitory

because its purpose is to prohibit the government from

interfering with the UDV’s religious practices.

With respect to the question of status quo, it is gen-

erally described as “the last peaceable uncontested

status existing between the parties before the dispute

developed.” 11A WRIGHT & MILLER § 2948, at 136 n.14

69a

(listing cases). See also Prairie Band of Potawatomi

Indians, 253 F.3d at 1249; Dominion Video Satellite,

Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155

(10th Cir. 2001); SCFC ILC, Inc., 936 F.2d at 1100 n.8.

Here, however, we are faced with a conflict between

two federal statutes, RFRA and the CSA, plus an inter-

national treaty, which collectively generate important

competing status quos.

The status quo for the UDV was that it was practic-

ing its religion through its importation and use of

hoasca at religious ceremonies. I am not suggesting, as

Judge Murphy argues, that the status quo is the UDV’s

legal right pursuant to RFRA to the free exercise of its

religion. Rather, as a matter of fact the church was

actively engaged in its religious practices.’ Status quo

for the government immediately prior to this litigation

was its enforcement of the drug laws against the UDV

in accordance with the CSA and the Convention, which

occurred after the government discovered the UDV

was importing hoasca for religious purposes and exer-

cised its prosecutorial discretion to stop that importa-

tion.

a

3 | also disagree with Judge Murphy’s contention that both

the church and the government “recognized that the importation

and consumption of hoasca violated the CSA,” Murphy, J., opin. at

10, and therefore the status quo was solely the government’s

enforcement of the CSA and compliance with the treaty. The

UDV may have acted in a somewhat clandestine manner in the

course of importing the hoasca and using it in its religious cere-

monies. However, its importation and use of the tea was premised

on its firmly held belief that such religious activity was in fact

protected from government interference by its right to the free

exercise of its religion.

70a

We are thus presented with two plausible status

quos, each of them important. Moreover, since both

parties contest the validity of the other’s actions, it is

difficult to describe either position as “the last peace-

able, uncontested status existing between the parties.”

The injunction granted by the district court can cer-

tainly be read to have altered the status quo for the

government and thereby caused it harm. Conversely,

failure of the court to grant the injunction would have

altered the status quo for the church, causing it harm.

As discussed above, injunctive relief may be warranted

where preserving the status quo perpetuates harm

against the moving party. See, e.g., Crowley, 679 F.2d

at 995 (preliminary relief appropriate where perpetua-

tion of status quo worked continuing harm to plaintiffs);

Canal Auth., 489 F.2d at 576 (status quo should not

be perpetuated where it causes irreparable harm to one

of the parties); Sluiter v. Blue Cross & Blue Shield

of Michigan, 979 F. Supp. 1131, 1136 (E.D. Mich. 1997)

(prevention of irreparable harm, rather than main-

tenance of status quo, should guide court in granting

mandatory injunction, especially where preserving

status quo severely threatens lives of movants). And

the competing harms that might arise from a change in

the status quo can be fully addressed under the balance

of harms and public interest facets of the preliminary

injunction test. See, e.g., Millennium Restaurants

Group, Inc. v. City of Dallas, 181 F. Supp. 2d 659, 667

(N.D. Tex. 2001) (balancing irreparable harm to sexu-

ally oriented business’ First Amendment right of free

expression against temporary harm to city by virtue of

injunction preventing city from revoking license of

business); Mediplex of Massachusetts, Inc. v. Shalala,

39 F. Supp. 2d 88, 100-01 (D. Mass. 1999) (preliminary

injunction appropriate, in part, where harm to nursing

-- ome

Tla

facility residents arising from government’s intention

to close facility outweighed more general harm to gov-

ernment); Canterbury Career School, Inc. v. Riley, 833

F. Supp. 1097, 1105-06 (D.N.J. 1993) (injunction prop-

erly issued where plaintiff would suffer loss of federal

funding and accreditation as balanced against more

general harm to government).

Turning to the district court’s review of the four

preliminary injunction factors and giving due deference

to its weighing of the evidence, I am convinced for all of

the reasons described by the district court, see supra at

13-15, and set forth in the panel opinion, O Centro, 342

F.3d at 1179-87, that the court did not abuse its dis-

cretion in concluding the UDV has established the first

preliminary injunction factor, a substantial likelihood of

success on the merits of the case. /d. at 1187.‘ With

respect to irreparable harm, the district court, acknowl-

edging its jurisdiction was founded upon RFRA, cor-

rectly recognized that the violation of one’s right to the

free exercise of religion necessarily constitutes irrepar-

able harm. See, eg., Kikuwmura, 242 F.3d at 963

* I do not, however, include footnote 2 of the panel majority

opinion in my reasoning here. See O Centro Espirita Beneficiente

Uniao Do Vegeta! v. Ashcroft, 342 F.3d 1170, 1173 n.2 (10th Cir.

2003). The language in that footnote could lead one to conclude

that a plaintiff's initial showing of a prima facie RFRA violation

would satisfy the likelihood of success on the merits prong of the

preliminary injunction test regardless of the government's suc-

cessful articulation of a restrictively applied compelling interest.

Such a conclusion would be incorrect; only an unrebutted prima

facie showing could establish the likelihood of success on the merits

of a RFRA claim. See id. at 1179-87 (discussion regarding UDV's

showing likelihood of success on the merits by virtue of govern-

ment’s failure to establish compelling interest applied in least

restrictive manner).

72a

(“courts have held thet a plaintiff satisfies the irrepara-

ble harm analysis by alleging a violation of RFRA”);

Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) (“al-

though plaintiff’s free exercise claim is statutory rather

than constitutional, the denial of the plaintiff's right to

the free exercise of his religious beliets +3 a harm that

cannot be adequately compensated mouetarily”). The

harm to the UDV from being denied the right to the

use of a sacrament in its religious services is indis-

to the UDV against the harm the government would

suffer from a preliminary injunction prohibiting its

enforcement of the CSA against the church’s religious

use of a controlled substance, and from its compliance

with the Convention. As Judge McConnell so aptly ob-

serves, one cannot evaluate the balance of harm and

public interest factors separately and isolated from

Congress’ own balancing of these factors in RFRA. See

McConnell, J., opin. at 33-36. In RFRA, Congress de-

termined that the balance of equities and public inter-

est should weigh in favor of the free exercise of religion

and that this settled balance should only be disrupted

when the government can prove, by specific evidence,

that its interests are compelling and its burdening of

religious freedom is as limited as possible. See 42

U.S.C. § 2000bb-1(a)-(b).

Certainly the interests of the government as well

as the more general public are harmed if the govern-

ment is enjoined from enforcing the CSA against the

general importation and sale of street drugs, or from

complying with the treaty in this regard. But this case

is not about enjoining enforcement of the criminal laws

against the use and importation of street drugs.

73a

Rather, it is about importing and using small quantities

of a controlled substance in the structured atmosphere

of a bona fide religious ceremony. In short, this case is

about RFRA and the free exercise of religion, a right

protected by the First Amendment to our Constitution.

In this context, what must be assessed is not the more

general harm which would arise if the government were

enjoined from prosecuting the importation and sale of

street drugs, but rather the harm resulting from a

temporary injunction against prohibiting the controlled

use of hoasca by the UDV in its religious ceremonies

while the district court decides the issues at a full trial

on the merits.

As asserted by the government, the relevant harms

in this context are the risk of diversion of hoasca to

non-religious uses and the health risks to the UDV

members who ingest the tea. As the panel opinion ex-

plained, however, the district court found that the par-

ties’ evidence regarding health risks to the UDV mem-

bers from using hoasca as a sacrament in their religious

services was “in equipoise,” and the evidence regarding

the risk of diversion to non-ceremonial users was “vir-

tually balanced” or “may even . . . tip the scale

Sn en Sy puien” See O Centro

at 1179-83 (citing district court and reviewing

- : reviewing

I disagree with Judge Murphy’s assertion that be-

cause plaintiffs have the burden of proof on the pre-

liminary injunction factors they necessarily lose if the

evidence is in equipoise on the question of harm to the

government’s asserted interests. See Murphy, J., opin.

at 39-40. As Judge Murphy recognizes, a plaintiff seek-

ing a preliminary injunction has the burden of showing

that the harm to it outweighs any harm to the party to

74a

be enjoined or to the public interest. See Kikumura,

242 F.3d at 955. Here the harm to the UDV from being

denied the right to freely exercise its religion, which

under anyone’s measure carries significant weight and

is actually occurring, must be measured against the

potential risks of diversion of hoasca to non-religious

uses and harm to the health of church members con-

suming the hoasca. As the UDV established to the dis-

trict court’s satisfaction, neither of the potential harms

asserted by the government are more likely than not to

occur. Thus, the balance is between actual irreparable

harm to plaintiff and potential harm to the government

which does not even rise to the level of a preponderance

of the evidence.

Likewise, the harm resulting to the government from

a violation of the Convention in this context is similar to

the harm suffered as a result of the government’s tem-

porary inability to enforce the CSA against the church.

As with the CSA, the treaty must be read in light of

RFRA and the religious use of the controlled substance

here.’ While the general intent of the Convention was

to prevent the illicit use and trafficking of psychotropic

substances, it recognized that plants containing such

> As the panel opinion makes clear:

[T]he Supreme Court has directed “that an Act of Congress

. . . is ona full parity with a treaty, and that when a statute

which is subsequent in time is inconsistent with a treaty, the

statute, to the extent of conflict, renders the treaty null.” /d.

(quoting Reid v. Covert, 354 U.S. 1, 18) (1957) (plurality opin-

ion)). See also Whitney v. Robertson, 124 U.S. 190, 194 (if

treaty and statute conflict, “the one last in date will control the

other”).

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342

F.3d 1170, 1183-84 (10th Cir. 2003).

T5a

a.

substances were often used for legitimate religious

purposes. It therefore permitted signatory nations to

seek an exemption from the treaty for indigenous

plants containing prohibited substances “traditionally

used by certain small, clearly determined groups in

magical or religious rites.” See 1971 Convention on

Psychotropic Substances, Art. 32(4), 32 U.S.T. 543. In-

deed, the United States obtained such an exemption for

peyote. See O Centro, 342 F.3d at 1175-76.

In light of the Convention’s acknowledgment that the

use of psychotropic substances in the course of religious

rituals may warrant an exception from the treaty’s

terms, as well as the exemption granted to the United

States for peyote, the government’s argument that it

will be significantly harmed by a preliminary injunction

temporarily restraining it from enforcing the treaty

against the UDV does not ring entirely true. This

injunction temporarily bars the government in small

part from abiding by a treaty which contemplates the

religious use of plants containing prohibited substances,

in order that the UDV’s exercise of its religious faith

may be protected pending a full trial on the merits.

Moreover, given the competing status repre-

sented in this case—the church Gneediiiees en ecllaien

versus the government enforcing the drug laws and

—— with the treaty—the district court’s inclu-

sion of the additional terms in the imi injunc-

tion, in which the government is nd we perl. wn

most of its regulatory functions regarding the impor-

tation of this controlled substance, is a reasonable

attempt to balance the harms suffered by either party

until a full trial can be had on the merits. Viewed in

this light, and given the conclusion that the UDV has a

strong likelihood of succeeding on the merits of its claim

76a

under RFRA, the government’s argument that it would

be significantly harmed by a temporary injunction is

considerably weakened.

With respect to harm to the public interest, there is

an important public interest in both the enforcement of

our criminal drug laws and in compliance with our

treaty commitments. But there is an equally strong

public interest in a citizen’s free exercise of religion, a

public interest clearly recognized by Congress when it

enacted RFRA and by the signatories to the Conven-

tion when they authorized exemptions for religious use

of otherwise prohibited substances.’ It cannot go with-

out comment that Congress, in response to the Su-

preme Court’s ruling in Employment Division v.

Smith, 492 U.S. 872 (1990), enacted RFRA to overturn

the holding in that case. As noted by the panel, the

Supreme Court held in Smith that the “Free Exercise

Clause of the First Amendment did not require the

State of Oregon to exempt from its criminal drug laws

the sacramental ingestion of peyote by members of the

Native American Church.” O Centro, 342 F.3d at 1176

(citing Smith, 492 U.S. at 885-890). According to Smi ——

“(gjenerally applicable laws . . . . [could] be applied

religious exercises regardless of whether the govern-

ment [demonstrated] a compelling interest” for enforc-

ing the law. Jd. In response, Congress passed RFRA

6 Lending their voice as amici curiaein support of the UDV’s

position are a variety of other religious organizations. Among

these groups are the Christian Legal Society, the National Asso-

ciation of Evangelicals, Clifton Kirkpatrick, as the Stated Clerk of

the General Assembly of the Presbyterian Church, and the Queens

Federation of Churches, Inc. The presence of these varied groups

as advocates for the UDV further highlights the vital public inter-

est in protecting a citizen's free exercise of religion.

\

77a

to restore the compelling interest test articulated in

Sherbert v. Verner, 374 U.S. 398 (1963), and Wisconsin

v. Yoder, 406 US. 205 (1972).’ Thus, pursuant to

RFRA, there is a strong public interest in the free

exercise of religion even where that i -

flict with the CSA." ee

* The Supreme Court has subsequent!

hit y found RFRA uncon-

stitutional as applied to the states. City of Boerne v. Flores, 521

U.S. 507, 519 (1997). However, RFRA is still applicable to the

federal government. Kikumura v. H

Cir. 2001). wrley, 242 F.2d $60, 960 (10th

the framers of the Constitution, recognizing free exercise of

religion as an unalienable right, secured its protection in the

First Amendment to the Constitution; . . « laws “neutral”

toward religion may burden religious exercise as surely as

laws intended to interfere with religious exercise; . . . [and]

governments should not substantially burden religious exer-

42 US.C. § 2000bb(a)(1)-(3). Congress went on to express i i

pleasure with the Supreme Court's decision in Smith and stated

that the compelling interest test set out in Sherbert v. Verner, 374

U.S. 398 (1963), and Wisconsin v. Yoder, 406 U.S.-205 (1972)

struck a “sensible balance(] between religious liberty and compet-

— ee rag interests.” 42 U.S.C. § 2000bb(a)(4)-(5).

n making is observation, I do not assert, as Judge M

suggests, that Congress’ findings in conjunction with its passage cf

the CSA are totally irrelevant, or that the dissent erred in its

reference to them. See Murphy, J., opin. at 39 n.13. Rather, it is

my position that the findings articulated by Congress in the CSA

cannot be viewed without reference to Congress’ adamant

~

78a

For all the reasons stated above, even under the

heightened standard affirmed by a majority of this

court, the district court did not abuse its discretion in

granting the injunction to the church. The court held

that

in balancing the Government’s concerns [regarding

harm] against the injury suffered by the [church]

when [its members are] unable to consume hoasca in

their religious ceremonies, this Court concludes

that, in light of the closeness of the parties’ evidence

regarding the safety of hoasca use and its potential

for diversion, the scale tips in the [cnurch’s] favor.

O Centro, 282 F. Supp. 2d at 1270. It also noted that by

issuing the injunction, the public’s interest in the pro-

tection of religious freedoms would be furthered. /d.

The district court’s ruling is appropriate in light of

Congress’ implicit RFRA determination that the harm

prevented and public interest served by protecting a

citizen’s free exercise of religion must be given control-

ling weight, barring the government’s proof, by specific

evidence, that its interests are more compelling. Here,

the government failed to overcome Congress’ determi-

nation.

affirmation that the free exercise of religion is an unalienable right

to be burdened only under the most compelling of government

justifications.

79a

MCCONNELL, J., joined by Tymkovich, J., concurring,

and joined by HARTZ, J., and O'BRIEN, J., as to Part I.

This Court has traditionally required a heightened

showing for preliminary injunctions in three “dis-

favored” categories: injunctions that disturb the status

quo, mandatory injunctions, and injunctions that afford

the movant substantially all the relief it may recover at

the conclusion of a full trial on the merits. SCFC ILC,

Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir.

1991). We heard this case en banc to consider whether

to jettison the heightened standard for preliminary in-

junctions that disturb the status quo. A majority of this

Court has concluded that there are reasons—not fully

accounted for in the balance of harms analysis—for

courts to disfavor preliminary injunctions that disturb

the status quo, and thus reaffirms our traditional rule

(with slight modification and clarification). See Opinion

of Murphy, J., at 1-10. A different majority has con-

cluded that, even under the heightened standard, Ap-

pellee O Centro Espirita Beneficiente Uniao do Vegetal

(“UDV”) is entitled to a preliminary injunction against

enforcement of laws against the possession and use of

its sacramental substance, hoasca. Opinion of Seymour,

J., at 28. I write separately to explain why both halves

of this holding, in my opinion, are correct.’

| Judges Seymour and Murphy have each written opinions

that concur in part of the holding of the en banc court and dissent

from the other part. For convenience, I will refer to those portions

of these opinions that dissent from the en banc holding as a “dis-

sent,” and to those portions that concur in the holding as a “con-

currence.” I join the per curiam opinion in its entirety. I join Part

I of Judge Murphy’s separate opinion, and Part II of Judge Sey-

mour’s separate opinion, on the understanding that the analysis

80a

1. A Heightened Standard Should Apply to Preli-

minary Injunctions That Disturb the Status Quo

The Supreme Court has stated that preliminary in-

junctions have the “limited purpose” of “merely [pre-

serving] the relative positions of the parties until a trial

on the merits can be held.” University of Texas v.

Camenisch, 451 U.S. 390, 395 (1981). This emphasis on

preserving the status quo is not the same as, and cannot

be reduced to, minimizing irreparable harm to the par-

ties during the pendency of litigation, as suggested by

tire dissent. See Opinion of Seymour, J., at 5-6. At the

preliminary injunction stage, before there has been a

trial on the merits, the function of the court is not to

take whatever steps are necessary to prevent irrepara-

ble harm, but primarily to keep things as they were,

until the court is able to determine the parties’ respec-

tive legal rights. That is why, in addition to the four

preliminary injunction factors of harm to the movant,

balance of harm, public interest, and likelihood of suc-

cess on the merits, this Court has required district

courts to-take into account whether preliminary relief

would preserve or disturb the status quo. The burden

of justifying preliminary relief is higher if it would

disturb the status quo. SCFC ILC, Inc., 936 F.2d at

1098-99.

There is no reason to think that the “general maxim”

that “the purpose of a preliminary injunction is to pre-

serve the status quo between the parties pending a full

trial on the merits” is one that “shou]Jd not be taken

merely at face value” or disregarded except insofar as it

“impacts the balance of harms between the parties and

holds “even under the heightened standard affirmed by a majority

of this court.” Opinion of Seymour, J., at 28.

8la

the public interest.” Opinion of Seymour, J., at 6,7. A

judicial version of Hippocrates’ ancient injunction to

physicians—above all, to do no harm—counsels against

forcing changes before there has been a determination

of the parties’ legal rights. The settled rule of our

tradition is that losses should remain where they fall

until an adequate legal or equitable justification for

shifting them has been demonstrated.

Traditional equity practice held that the sole purpose

of a preliminary injunction was to preserve the status

quo during the pendency of litigation. See, e.g., Farm-

ers’ R.R. Co. v. Reno, Oil Creek & Pithole Ry. Co., 53

Pa. 224 (Pa. 1866) (dissolving an injunction that blocked

defendants from continuing to use certain land in

their possession because the sole purpose of a prelimi-

nary injunction is to preserve the status quo); Chicago,

St. Paul & Kansas City R.R. Co. v. Kansas City, St.

Joseph & Council Bluffs R.R. Co., 38 F. 58, 60

(C.C.W.D. Mo. 1889) (noting that a higher standard ap-

plies to mandatory injunctions that disrupt the status

quo); New Orleans & North Eastern R.R. Co. v. Missis-

sippi, Terre-aux Boeufs & Lake R.R. Co., 36 La. Ann.

561 (La. 1884) (maintaining an injunction insofar as it

maintained the status quo, but dissolving that portion

that did not); Warner Bros. Pictures v. Gittone, 110

F.2d 292, 293 (3d Cir. 1940) (per curiam) (“Irreparable

loss resulting from refusal to accord the plaintiff a new

status, as distinguished from interference with rights

previously enjoyed by him, does not furnish the basis

for interlocutory relief.”); Levy v. Rosen, 258 Ill. App.

262 (Ill. App. Ct. 1930) (“An interlocutory order is usu-

ally granted to preserve the status quo, but the order in

this appeal did not do that, but changed the status quo.

The entry of such order was clearly erroneous.”); Gill v.

82a

Hudspeth County Conservation & Reclamation Dist.

_ No. 1, 88 S.W.2d 517, 519 (Tex. Civ. App. 1935) (“{T]he

court’s discretion should be exercised against the writ if

its issuance would change the status quo.”); Bowling v.

Nat’l Convoy & Trucking Co., 135 So. 541 (Fla. 1931)

(“Since the object of a preliminary injunction is to pre-

serve the status quo, the court will not grant such an

order where its effect would be to change the status.”);

Gates v. Detroit & Mackinac Ry. Co., 115 N.W. 420, 421

(Mich. 1908) (dissolving that portion of a preliminary in-

junction that went beyond the status quo); Jones v.

Dimes, 130 F. 638, 639 (D. Del. 1904) (relaxing the bur-

den on the moving party when the requested injunction

merely maintained the status quo); 1 James L. High, A

Treatise on the Law of Injunctions (Chicago: Callaghan

& Co. 1890, 3d ed.) § 4 at 5 (“The sole object of an inter-

locutory injunction is to preserve the subject in contro-

versy in its then condition, and, without determining

any questions of right”).

To be sure, it is sometimes necessary to require a

party who has recently disturbed the status quo to

reverse its actions. Such an injunction restores, rather

than disturbs, the status quo ante, and is thus not an

exception to the rule. “Status quo” does not mean the

situation existing at the moment the law suit is filed,

but the “last peaceable uncontested status existing

between the parties before the dispute developed.”

11A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 2948 (2d

ed. 1995). Thus, courts of equity have long issued pre-

2 This, too, is a traditional principle of equity practice. See,

e.g., Fredericks v. Huber, 37 A. 90, 91 (Pa. 1897); Bowling v. Nat'l

Convoy & Trucking Co., 135 So. 541, 544 (Fla. 1931); Bellows v.

Ericson, 46 N.W. 2d 654, 659 n.9 (Minn. 1951); State ex rel.

83a

liminary injunctions requiring parties to restore the

status quo ante. Shanaman v. Yellow Cab Co., 421

A.2d 664, 667 (Pa. 1980) (reversing a preliminary in-

junction because “the purpose of a mandatory prelimi-

nary injunction is to restore the status quo” and the

injunction actually disrupted that status); Morgan v.

Smart, 88 S.W. 2d 769, 772 (Tex. Civ. App. 1935)

(“(TJhere are no real exceptions to the rule that the

status quo will not be disturbed by a preliminary in-

junction, and when by such an injunction the possession

_ of property is properly ordered to be restored it is not

to disturb the status quo, but to avoid mistaking the

true status and to avoid preserving a false one.”).

In recent decades, most courts—and all federal

courts of appeal—have come to recognize that there are

cases in which preservation of the status quo may so

clearly inflict irreparable harm on the movant, with so

little probability of being upheld on the merits, that a

preliminary injunction may be appropriate even though

it requires a departure from the status quo. See, e.g.,

Canal Authority v. Callaway, 489 F.2d 567, 576 (5th

Cir. 1974). But preliminary injunctions that disturb

the status quo, while no longer categorically forbidden,

remain disfavored. Only one federal court of appeals

McKinley Automotive, Inc. v. Oldham, 584 P.2d 741, 743 n.3 (Or.

1978); Weis v. Renbarger, 670 P.2d 609, 611 (Okla. Ct. App. 1983).

’ Some states continue to make preservation of the status quo

a necessary requirement for all preliminary injunctions. See, e.g.,

Postma v. Jack Brown Buick, Inc., 626 N.E. 2d 199, 203 (Ill. 1993)

(stating categorically that “preliminary injunctions are improper

where they tend to change the status quo of the parties rather

than preserve it”); County of Richland v. Simpkins, 560 S.E. 2d

902, 906 (S.C. Ct. App. 2002) (noting that the sole purpose of a pre-

liminary injunction is to preserve the status quo, and affirming the .

denial of an injunction that would change that status).

84a

has concluded that courts should simply strive to

minimize irreparable harm, with no special attention to

the status quo, as our dissenters suggest. United Food

& Commercial Workers Union, Local 1099 v. South-

west Ohio Reg’l Transit Auth., 163 F.3d 341, 348 (6th

Cir. 1998); see Opinion of Seymour, J., at 12.

4 I am puzzled by the dissent’s suggestion that abandoning

heightened scrutiny for preliminary injunctions that disturb the

status quo would “bring our jurisprudence in closer accord” with

“other circuits.” Opinion of Seymour, J., at 4-5, citing Jn re Micro-

soft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom

Doherty Assocs. v. Saban Entm’t, 60 F.3d 27, 34-35 (2d Cir. 1995);

Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994);

Wetzel v. Edwards, 635 F.2d 288, 286 (4th Cir. 1980); Anderson v.

United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980). Certainly

that is not true of the Second Circuit. In the very opinion cited by

the dissent, Tom Doherty, the Second Circuit states:

[W]e have required the movant to meet a higher standard

where: (i) an injunction will alter, rather than maintain, the

status quo, or (ii) an injunction will provide the movant with

substantially all the relief sought and that relief cannot be

undone even if the defendant prevails at a trial on the merits.

60 F.3d at 33-34 (emphasis added). The other cited circuits blend

the disfavored categories of mandatory injunctions and those that

disturb the status quo, but continue to treat the latter as requiring

a heightened showing. For example, the Third Circuit decision

cited by the dissenters holds as follows:

A primary purpose of a preliminary injunction is maintenance

of the status quo until a decision on the merits of a case is

rendered. A mandatory preliminary injunction compelling

issuance of a building permit fundamentally alters the status

quo. . . A party seeking a mandatory preliminary

injunction that will alter the status quo bears a particularly

heavy burden in demonstrating its necessity.”

Acierno v. New Castle County, 40 F.3d at 647, 653 (emphasis

added; citation omitted). The other cited cases are to similar

effect. See Anderson v. United States, 612 F.2d at 1114-15

85a

There are sound reasons of jurisprudence in support

of the traditional view that preliminary injunctions that

disturb the status quo require heightened justification.

A preliminary injunction of any sort is an “extraordi-

nary” and “drastic” remedy. See United States ex rel.

Potawatomi Indian Tribe v. Enter. Mgmt. Consultants,

Inc., 883 F.2d 886, 888-89 (10th Cir. 1989). Judicial

power is inseparably connected with the judicial duty to

decide cases and controversies by determining the par-

ties’ legal rights and obligations. See Marbury v. Madi-

son, 5 U.S. (1 Cranch) 137, 177 (1803). A preliminary

injunction is remarkable because it imposes a constraint

on the enjoined party’s actions in advance of any such

determination. That is, a preliminary injunction forces

a party to act or desist from acting, not because the law

requires it, but because the law might require it. This

is all the more striking because, given that many pre-

liminary injunctions must be granted hurriedly and on

the basis of very limited evidence, deciding whether to

grant a preliminary injunction is normally to make a

choice under conditions of grave uncertainty. See

Heideman v. South Salt Lake City, 348 F.3d 1182, 1188

(10th Cir. 2003).

It is one thing for a court to preserve its power to

grant effectual relief by preventing parties from mak-

ing unilateral and irremediable changes during the

(“Mandatory preliminary relief, which goes well beyond simply

maintaining the status quo pendente lite, is particularly disfavored,

and should not be issued unless the facts and law clearly favor the

moving party.”); In re Microsoft Corporation Antitrust Litigation,

333 F.3d at 526 (“Mandatory preliminary injunctions [generally] do

not preserve the status quo and normally should be granted only in

~ those circumstances when the exigencies of the situation demand

such relief.”), quoting Wetzel v. Edwards, 635 F.2d at 286.

86a

course of litigation, and quite another for a court to

force the parties to make significant alterations in their

practices before there has been time for a trial on the

merits. See, e.g., Gittone, 110 F.2d at 293 (“(Tyhe effect

of the preliminary injunction which the court granted

was not to preserve the status quo but rather to alter

the prior status of the parties fundamentally. Such an

alteration may be directed only after final hearing.”); Jn

re Marriage of Schwartz, 475 N.E. 2d 1077, 1079 (Ill.

App. Ct. 1985) (“It is not the purpose of the preliminary

injunction to determine controverted rights or decide

the merits of the case. . . . A preliminary injunction is

merely provisional in nature, its office being merely to

preserve the status quo until a final hearing on the

merits.”).

Moreover, preserving the status quo enables the

court to stay relatively neutral in the underlying legal

dispute. The restrictions placed on the parties can be

understood as requiring only that they act in a manner

consistent with the existence of a good-faith dispute

about the relevant legal entitlements. The moving

party is not given any rights, even temporarily, that

would normally be his only if the legal dispute were

resolved in his favor. For example, ownership disputes

often raise concerns that the defendant in possession

would overuse or waste the property before a complain-

ant could regain possession through legal proceedings.

Under those circumstances, equitable courts regularly

enjoin the waste, ordering the defendant to preserve

the property in statu quo. The general rule, however, is

that except in the most exceptional cases, a court of

equity cannot go beyond the status quo by putting the

moving party into possession of the disputed property,

even though, presumably, being deprived of the interim

87a

ability to enjoy the property would often constitute

irreparable harm. See, e.g., Farmers’ R.R. Co., supra;

Morgan v. Smart, 88 S.W.2d 769, 771 (Tex. Civ. App.

1935) (“It is not the function of a preliminary injunction

to transfer the possession of land from one person to

another pending an adjudication of the title, except in

cases in which the possession has been forcibly or

fraudulently obtained . . . [and the injunction is

necessary so that] the original status of the property

[may] be preserved pending the decision of the issue.”),

quoting Simms v. Reisner, 134 S.W. 278, 280 (Tex. Civ.

App. 1911). See generally Mandatory Injunction P

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