[00:00:00] Speaker 03:
The first case on our calendar is 21-16540 Chernetsky versus State of Nevada.

[00:00:07] Speaker 03:
Counsel, before you begin, you're splitting time, is that right?

[00:00:11] Speaker 05:
Yes, Your Honor.

[00:00:11] Speaker 05:
I'll be splitting time with my co-counsel.

[00:00:13] Speaker 05:
I'll be speaking for three minutes on mootness, and then my co-counsel, Caleb Blackerby, will speak for seven minutes on the merits.

[00:00:22] Speaker 05:
And I'll reserve five minutes for rebuttal, if that's OK.

[00:00:24] Speaker 03:
OK, just keep an eye on the clock, because that's the total that you have is 15 minutes.

[00:00:29] Speaker 03:
I can tell you, maybe, Madam Clerk, that I'm not sure if the sound is turned up or what, but it seems very loud on our end.

[00:00:38] Speaker 02:
Also, could we set the clock for three minutes so that it doesn't get confused?

[00:00:44] Speaker 02:
Thank you.

[00:00:46] Speaker 05:
Is that better, Your Honor, for volume?

[00:00:48] Speaker 03:
That is much better for volume.

[00:00:49] Speaker 03:
Thank you.

[00:00:50] Speaker 03:
And so you're going to have three minutes now.

[00:00:51] Speaker 03:
So Madam Clerk can set that for you, and it will count down whenever you're ready.

[00:00:59] Speaker 05:
Good morning, your honors.

[00:01:01] Speaker 05:
For 17 years, the Nevada Department of Corrections has denied Mr. Tredegas access to the natural oils he needs for worship.

[00:01:10] Speaker 05:
Now, on the third appeal to this court, INDOC claims that this case has been moot for years because of a 2017 amendment to its religious oils policy.

[00:01:20] Speaker 05:
This argument is completely at odds with how this court, the district court, and the parties have understood this case for the past seven years.

[00:01:29] Speaker 05:
Indoch made that policy change during the last appeal to this court.

[00:01:34] Speaker 05:
This court, reviewing that policy change, remanded to determine whether there was still a dispute with respect to natural oils.

[00:01:43] Speaker 05:
On remand at the district court, it became clear there was still a dispute.

[00:01:48] Speaker 05:
Indoch interpreted its new policy to continue to ban natural oils.

[00:01:54] Speaker 05:
So Indoch didn't even try to argue mootness below.

[00:01:57] Speaker 05:
and the district court acknowledged in its ruling that the new policy continued to burden Mr. Trenetsky's fate.

[00:02:03] Speaker 05:
There was still a live dispute and everyone knew it.

[00:02:08] Speaker 05:
As the last seven years have made clear, that 2017 amendment changed nothing for Mr. Trenetsky.

[00:02:14] Speaker 05:
Natural oils were banned before and they're still banned today.

[00:02:18] Speaker 05:
The case is therefore not moot.

[00:02:22] Speaker 05:
Indoc is really just arguing that Mr. Ternetzky should have amended his complaint in 2017 when Indoc updated its policy, but it forfeited that argument by not raising it at the district court.

[00:02:34] Speaker 05:
This court should reject Indoc's late-breaking mootness argument and proceed to the merits.

[00:02:41] Speaker 05:
Does the court has any questions on mootness?

[00:02:43] Speaker 03:
I don't think we do.

[00:02:44] Speaker 05:
I'm happy to answer them.

[00:02:44] Speaker 05:
Otherwise, I'll turn it over to my colleague and reserve the rest of my time for rebuttal.

[00:02:47] Speaker 05:
Thank you.

[00:03:06] Speaker 04:
Good morning, and may it please the court, Kayla Blackerby, counsel for appellant Anthony Chernetsky.

[00:03:12] Speaker 04:
NDOT has had nearly two decades to come up with an adequate justification for its ban on natural oils.

[00:03:19] Speaker 04:
On appeal, it asserts only two purportive interests, flammability and administrative burdens.

[00:03:25] Speaker 03:
Why are those not legitimate interests?

[00:03:29] Speaker 04:
Your Honor, NDOC needs, under RLUPA, needs to prove that it has a compelling interest in enforcing its policy against Mr. Trunetsky specifically.

[00:03:39] Speaker 04:
An abstract interest in administrative burdens generally or flammability is not enough.

[00:03:46] Speaker 02:
I appreciate that.

[00:03:46] Speaker 02:
Well, flammability is a concern, it would seem to me, whether it's in a prison context or otherwise.

[00:03:53] Speaker 02:
So the question is, do these natural oils have no properties that differentiate them from the

[00:03:59] Speaker 02:
synthetic and scented oils that are permitted?

[00:04:03] Speaker 04:
Sure.

[00:04:03] Speaker 04:
So, NDOT has failed to establish that its flammability concerns are a compelling interest under RLUPA.

[00:04:09] Speaker 03:
Go back up and explain the burden shifting, because you skipped that step, okay?

[00:04:13] Speaker 04:
Okay.

[00:04:13] Speaker 03:
Thank you.

[00:04:15] Speaker 03:
What do you have to show in order for the burden to shift to Nevada?

[00:04:21] Speaker 04:
We need to show that Mr. Trunetsky's religious exercise is substantially burdened, and NDOC has not argued that it isn't.

[00:04:30] Speaker 04:
So now it is NDOC's burden to establish its compelling interest, and NDOC has failed to do that with respect to flammability for two independent reasons.

[00:04:41] Speaker 04:
It has not shown that the natural oils Mr. Trunetsky seeks are flammable.

[00:04:46] Speaker 04:
And second, even if it had, ENDOC has not shown that Mr. Trunetsky's use of those oils in worship poses a safety risk.

[00:04:54] Speaker 04:
So I'll start with the oils.

[00:04:55] Speaker 03:
Could I ask you a preliminary question?

[00:04:56] Speaker 03:
Oh, forgive me.

[00:04:57] Speaker 03:
Go right ahead.

[00:04:58] Speaker 00:
Thank you, Judge.

[00:05:02] Speaker 00:
Have we determined, has the record determined, because I had a hard time finding it, whether synthetic oils, the approved synthetic oils, are flammable?

[00:05:13] Speaker 04:
Your Honor, NDOT says that they are not.

[00:05:16] Speaker 03:
But the baby oil is available at the commissary or whatever.

[00:05:21] Speaker 03:
And it's not flammable, apparently.

[00:05:23] Speaker 03:
I've never tried to lighten it.

[00:05:24] Speaker 03:
baby oil, but apparently that's allowed in prison.

[00:05:26] Speaker 03:
The record indicates that, right?

[00:05:28] Speaker 04:
Right, Your Honor.

[00:05:29] Speaker 03:
And there's other scented oils that we have from new authority.

[00:05:33] Speaker 03:
That's right, Your Honor.

[00:05:34] Speaker 03:
And do we have anything to get back to Judge Ezra's question in this record that tells us whether the scented oils are flammable?

[00:05:40] Speaker 04:
Not to my knowledge, Your Honor.

[00:05:42] Speaker 04:
NDOC asserts that they are not and that they're acceptable under their policy, which states that- NDOC asserts that the scented ones are not flammable?

[00:05:49] Speaker 04:
Well, they allow them under their policy, which only allows non-flammable, non-toxic oils.

[00:05:53] Speaker 04:
That's all we have in the record to show.

[00:05:55] Speaker 03:
OK, that's my question.

[00:05:56] Speaker 03:
So we don't have anything in the record specifically about flammability?

[00:05:59] Speaker 00:
Our natural- oh, I'm sorry, Judge.

[00:06:01] Speaker 02:
Go ahead.

[00:06:02] Speaker 02:
Well, and then they've also, though, on the scented oils, they've limited that, correct, by-

[00:06:08] Speaker 02:
volume, et cetera.

[00:06:09] Speaker 02:
But they haven't done any such.

[00:06:11] Speaker 02:
They've just banned completely the natural oil.

[00:06:14] Speaker 02:
Is that right?

[00:06:15] Speaker 04:
That's right, Your Honor.

[00:06:15] Speaker 04:
That's right.

[00:06:16] Speaker 03:
So the record indicates that earlier your client was given permission to use some amount of flame or fire in his worship service.

[00:06:25] Speaker 03:
And I can't tell whether that's still happening.

[00:06:29] Speaker 04:
That's right.

[00:06:30] Speaker 04:
He did win that right to use... And he's still doing that?

[00:06:34] Speaker 04:
As far as we can tell?

[00:06:35] Speaker 04:
As far as we can tell, Your Honor, yes.

[00:06:36] Speaker 03:
Okay.

[00:06:37] Speaker 03:
So that gets back to Judge McEwen's question.

[00:06:39] Speaker 03:
I think it's the question that all three of us have about safety in prison is a very significant interest.

[00:06:45] Speaker 03:
We've said that lots of times.

[00:06:47] Speaker 03:
And so are you relying on Nevada's failure to meet its burden?

[00:06:52] Speaker 04:
Certainly, Your Honor, it is Nevada's burden to prove that the oils are flammable.

[00:06:58] Speaker 04:
It is not Mr. Trinetsky's burden to prove that they are not.

[00:07:04] Speaker 04:
ENDOC has provided no evidence whatsoever that the oils are flammable.

[00:07:07] Speaker 04:
It relies primarily on the FROBES Declaration, which is in the record at 2ER68.

[00:07:13] Speaker 04:
And that has two main problems.

[00:07:15] Speaker 04:
It's not tailored to Mr. Trenetsky as the looper requires.

[00:07:18] Speaker 04:
In fact, it's not even about natural oils at all.

[00:07:20] Speaker 04:
It's about, quote, scented oils.

[00:07:22] Speaker 04:
Mr. Trenetsky actually sent a letter requesting specific natural oils, including lavender, rose, and cedar.

[00:07:29] Speaker 04:
But the FROBES Declaration nowhere mentions any of those oils.

[00:07:32] Speaker 04:
It doesn't mention natural oils at all.

[00:07:34] Speaker 02:
So let me ask you what the remedy would be, and that is, would it be to remand, to let them put this in the record, or has that ship passed, and we would simply rule in favor of Mr. Czernetski, which would permit him access to natural oils?

[00:07:52] Speaker 04:
We believe, Your Honor, that summary judgment in favor of Mr. Trenetsky is warranted at this point.

[00:07:59] Speaker 04:
Endoc's failure to provide any evidence whatsoever that the natural oils are flammable does not create a genuine dispute of material fact, and even if it had established that they were flammable, no reasonable fact finder could conclude that a total ban is the least restrictive means of furthering that interest.

[00:08:16] Speaker 04:
There are a number of less restrictive regulations at ENDOC's disposal, for example, quantity restrictions and use restrictions.

[00:08:25] Speaker 04:
Mr. Trinetsky only needs a few drops of natural anointing oil to practice his faith, so ENDOC could severely limit his access to just a few drops at a time.

[00:08:34] Speaker 04:
There are also numerous use restrictions available.

[00:08:37] Speaker 04:
NDOT could, for example, require that an ointment occur a certain distance beyond a certain distance from the fire.

[00:08:45] Speaker 04:
It could use a checkout procedure under which the chaplain would store the materials and check them out in limited quantities.

[00:08:51] Speaker 03:
Can I ask you about that?

[00:08:51] Speaker 03:
How many times a day does your client require a few drops of oil?

[00:08:55] Speaker 04:
It's not per day, Your Honor, and the record is a light on the frequency, but I can express representations.

[00:09:03] Speaker 03:
Well, it's an administrative burden.

[00:09:04] Speaker 03:
That's why I ask.

[00:09:05] Speaker 03:
If it were five times a day as it was in Johnson, then that's a different issue.

[00:09:09] Speaker 03:
I think Judge Ezra may have a question for you.

[00:09:12] Speaker 00:
Thank you, Judge.

[00:09:14] Speaker 00:
I presume since he's using fire, this is not happening in his cell.

[00:09:18] Speaker 04:
That's correct, Your Honor.

[00:09:19] Speaker 04:
There's religious grounds.

[00:09:22] Speaker 00:
There is a designated religious area outside of the prison cell where all of this goes on, and not just for him, but also for other people who have other religious beliefs that they practice.

[00:09:34] Speaker 00:
Is that right?

[00:09:35] Speaker 04:
That's right, your honor.

[00:09:37] Speaker 04:
And another potential regulation at NDOC's disposal is to actually supervise those grounds.

[00:09:44] Speaker 04:
It could use a checkout and supervise procedure.

[00:09:46] Speaker 04:
It appears to use this with dangerous hobby craft materials and tools.

[00:09:50] Speaker 04:
For example, under AR 411, the tool regulation, inmates using bolt cutters, knives, meat forks, and axes require direct supervision, while inmates using picks, ropes, and wood saws require direct observation.

[00:10:05] Speaker 04:
If NDOT can handle supervising inmates using these dangerous items, surely it can handle a few drops of natural anointing oil.

[00:10:14] Speaker 04:
And if there are no further questions on this, I want to make sure I save time for rebuttal.

[00:10:19] Speaker 03:
Yes, that's fine.

[00:10:20] Speaker 03:
You can save the time for rebuttal.

[00:10:22] Speaker 04:
Thank you so much.

[00:10:22] Speaker 03:
Thank you for your argument.

[00:10:24] Speaker 03:
We'll hear from opposing counsel, please.

[00:10:39] Speaker 01:
May it please the court, Jeffrey Connor from the Nevada Attorney General's Office on behalf of the Defendants Appellees.

[00:10:45] Speaker 01:
I think I want to, listening to the argument that's happened so far, I think where the dispute lies in this case is whether or not this ban on natural oils is the least restrictive means.

[00:10:57] Speaker 01:
There's an, we haven't challenged whether or not he's met his burden.

[00:11:01] Speaker 03:
So you have the burden.

[00:11:02] Speaker 01:
You have the burden, right?

[00:11:03] Speaker 01:
We're at a summary judgment stage.

[00:11:05] Speaker 01:
I don't want to say that if this is remanded for trial, that we aren't going to potentially challenge.

[00:11:09] Speaker 03:
Can I just be clear?

[00:11:09] Speaker 03:
So you agree that the burden is shifted to the state?

[00:11:12] Speaker 01:
Correct.

[00:11:12] Speaker 03:
Okay.

[00:11:12] Speaker 03:
So why is there a dispute of, what have you done to meet your burden to show that there's a legitimate interest here?

[00:11:18] Speaker 01:
So I think there's a, there's a very common sense safety concern.

[00:11:22] Speaker 01:
here with just generally possession of flammable oils by inmates creates a very significant security concern.

[00:11:30] Speaker 03:
But, Counsel, you're not suggesting we're going to rely on common sense.

[00:11:33] Speaker 03:
We're going to need evidence.

[00:11:35] Speaker 03:
We're going to need something to meet your burden of proof.

[00:11:37] Speaker 01:
I understand that, Your Honor.

[00:11:39] Speaker 01:
And when I refer to common sense, what I'm talking about is I think it's especially helpful to look at Justice Kavanaugh's.

[00:11:45] Speaker 01:
I don't know if these are flammable.

[00:11:47] Speaker 03:
Are these flammable?

[00:11:48] Speaker 01:
Yes, they are.

[00:11:52] Speaker 03:
And we know that because?

[00:11:54] Speaker 01:
So I will acknowledge that the record is thin on that point.

[00:11:59] Speaker 03:
Well, counsel, excuse me.

[00:12:01] Speaker 03:
Is it thin, or is there anything in there?

[00:12:03] Speaker 01:
So what we were able to point to that's in the record now is that Mr. Ternetzky did not assert that they're not flammable.

[00:12:10] Speaker 01:
He basically conceded the point when he acknowledged that they aren't used in a combustible manner during his religious services.

[00:12:18] Speaker 01:
OK, so.

[00:12:19] Speaker 01:
So.

[00:12:21] Speaker 01:
As Nevada given us anything on this point, I'd also point the court.

[00:12:25] Speaker 03:
That was a question.

[00:12:26] Speaker 03:
I'm not trying to be difficult, but but I did ask a question.

[00:12:30] Speaker 03:
Has Nevada given us anything on this point?

[00:12:33] Speaker 01:
The closest I can come to specifically identifying anything in the record that talks about flammability is a letter from Deputy AG Ian Carr to Mr. Ternatsky that's in the further excerpts of record that Mr. Ternatsky filed at pages eight and nine.

[00:12:53] Speaker 01:
All that Mr. Carr addressed there was a discussion that he had with the representative from Prime Products, because Mr. Ternetzky had requested the natural essential oils that Prime Products sells, as opposed to the fragrance oils that are currently sold in the prison canteen.

[00:13:10] Speaker 01:
And that specifically addresses that the composition of the fragrances that are currently available through the prison canteen are specifically designed to not be flammable.

[00:13:20] Speaker 02:
But that doesn't answer the question.

[00:13:23] Speaker 02:
That'd be great if an inmate needed scented oil.

[00:13:27] Speaker 02:
But the precise question, which it seemed to me the record is lacking, is this particular natural oil.

[00:13:36] Speaker 01:
And so if the court is concerned,

[00:13:39] Speaker 01:
And I think that's a legitimate concern, that there's not a sufficient evidence in here to demonstrate that the oils are flammable or not, that this court should remand for trial on that.

[00:13:50] Speaker 02:
Why didn't you have that opportunity already, given the long-running nature of the litigation?

[00:13:55] Speaker 02:
You could come forward and say, Johnson's baby oil is like a volcano.

[00:14:01] Speaker 02:
Or you could come forward and say, here's the composition of natural oils.

[00:14:06] Speaker 02:
and they differ from scented oil.

[00:14:08] Speaker 02:
So we don't know if scented oil is just some lavender sprinkled on natural oil or if it's its own thing, for example.

[00:14:16] Speaker 02:
You just can't define that from the record.

[00:14:19] Speaker 01:
I completely agree, Your Honor.

[00:14:21] Speaker 01:
And the one response I have to that is that part of, I think, the defense that was presented in the district court here

[00:14:29] Speaker 01:
was presented the way that it was and probably would have been more detailed on the properties of natural versus the synthetic oils because this case predated this court's decision in the Johnson case.

[00:14:43] Speaker 03:
In the Johnson case, did the state argue at any point that there was going to be a problem with scented oils because they're flammable?

[00:14:51] Speaker 01:
It did, but that wasn't the main justification.

[00:14:56] Speaker 03:
Right, but they made the same argument.

[00:14:57] Speaker 03:
And now, of course, they've changed the policy, and scented oils are OK.

[00:15:00] Speaker 03:
So of course, that leaves us in a really tough spot, counsel.

[00:15:03] Speaker 03:
And the same is true of what seemed to me at first blush like a legitimate security concern about baby oil, because that I do have some experience with, and it's slippery.

[00:15:12] Speaker 03:
But apparently, that's OK, too.

[00:15:14] Speaker 03:
And that's uncontested in this record.

[00:15:17] Speaker 03:
It's permitted, but that's the- That leaves me with, it's been, opposing counsel said seven, 10 years.

[00:15:23] Speaker 03:
I actually thought it had been 18 years.

[00:15:26] Speaker 01:
I think it might be 18 by this point in time, Your Honor.

[00:15:28] Speaker 01:
I think your calculation might be correct.

[00:15:29] Speaker 01:
Right.

[00:15:30] Speaker 03:
So where has Nevada been?

[00:15:31] Speaker 03:
This seems to be really flying in the face of this very clear statute.

[00:15:37] Speaker 01:
My own look at this stuff, if you do the research on the natural oils versus baby oil and these other materials that are sold through the prison canteen is there is a significant difference between those oils.

[00:15:52] Speaker 01:
And so if this was remanded for trial, I have zero doubt that the Nevada Department of Corrections is going to be able to prove that there is a significant difference between the natural oils that Mr. Ternetsky wants and the oils that are available in the prison.

[00:16:06] Speaker 01:
From what I've been able to do, look at, this is not in the record.

[00:16:10] Speaker 01:
So I understand that.

[00:16:11] Speaker 02:
Not in the record, you should probably stop.

[00:16:13] Speaker 02:
I appreciate that you've undertaken that.

[00:16:16] Speaker 02:
But we can't really consider anything beyond the record.

[00:16:19] Speaker 02:
So we're there at summary judgment.

[00:16:23] Speaker 02:
We all have established that Nevada bears this burden.

[00:16:28] Speaker 02:
What's the impact if Nevada hasn't met the burden, then the case goes to trial?

[00:16:37] Speaker 01:
That's what I think is the right thing, that if you're going to reverse the award of summary judgment here, I don't think Mr. Trunetsky has done enough to prove that he is entitled to summary judgment on this record either, so the result would be to remand this for trial.

[00:16:51] Speaker 01:
I think that this court could find that there is a legitimate safety concern here and that it could affirm

[00:17:00] Speaker 01:
I don't know how we would.

[00:17:03] Speaker 03:
I don't know how we would.

[00:17:04] Speaker 01:
Understanding that that's the court's condition.

[00:17:07] Speaker 03:
I mean, just at the risk of belaboring the point.

[00:17:13] Speaker 01:
how would we do that is it would it would we just need to rely on as you said common sense as opposed to any evidence in the record that uh... that possessed common sense would tell me that the same problem you have the same problem was sent to dole and baby all frankly and you don't so i just don't know where how i get i i don't think there is a problem but that's also because i've i've looked at stuff that's outside the record that okay doesn't want to get into and so i understand that uh... but i do i do think that there is information available and it's possibly

[00:17:41] Speaker 01:
You know, there are possibly sources that I could ask the Court to take judicial notice of that this Court would be able to look at the properties of those oils to determine that there is a difference between them.

[00:17:51] Speaker 01:
We didn't do that here because I didn't want to do what Your Honor is concerned about, which is ask the Court to decide factual questions beyond the record.

[00:17:58] Speaker 03:
So what do you think the correct—could I just ask you, what is the correct result you think that we ought to reach today?

[00:18:05] Speaker 03:
There's a summary judgment ruling.

[00:18:06] Speaker 01:
Yeah.

[00:18:08] Speaker 01:
I think on this record the court could affirm, but I understand your honor's not convinced of that.

[00:18:14] Speaker 01:
And so I think the right result in that event is a remand for trial because I think there are genuine issues of material fact here about whether or not there is a very serious safety concern here with

[00:18:26] Speaker 01:
prisoners possessing flammable oil.

[00:18:28] Speaker 02:
I think that's a legitimate concern, but my question procedurally, given the long history of the case, is we have two summary judgment motions at issue.

[00:18:36] Speaker 02:
So we've really been talking about the state's summary judgment so far and whether the state has met its burden.

[00:18:46] Speaker 02:
With respect to plaintiff Trunetsky's motion for summary judgment, once he comes forward,

[00:18:57] Speaker 02:
with the argument as to the natural oil, does the burden then shift to the state?

[00:19:08] Speaker 02:
And since the state didn't put in anything, he would win his summary judgment motion?

[00:19:13] Speaker 01:
I don't think so, Your Honor, because I don't think that he did anything in his motion for summary judgment that establishes the absence of a genuine issue of material fact on whether or not there is a compelling government interest that is furthered by this policy

[00:19:27] Speaker 01:
and whether or not it's the least restrictive means for doing so.

[00:19:30] Speaker 02:
But what did the state put in that would say that there's a factual issue?

[00:19:36] Speaker 01:
I don't think he showed the absence of one, right?

[00:19:39] Speaker 01:
So under the summary judgment cases, for the burden to shift to the department to have to

[00:19:45] Speaker 01:
to meet its burden, he first has to challenge their ability to do that.

[00:19:50] Speaker 01:
I don't think he adequately made that challenge here.

[00:19:52] Speaker 02:
We kind of have two burdens in a way.

[00:19:54] Speaker 02:
We have a burden within a burden in terms of procedurally.

[00:19:58] Speaker 02:
You're saying that the burden of going forward, I assume, is what you're talking about with summary judgment, that he hasn't met that burden.

[00:20:05] Speaker 02:
Correct.

[00:20:05] Speaker 02:
Therefore, there's no burden within the whole prison litigation context

[00:20:09] Speaker 02:
that would shift the burden back to the state.

[00:20:12] Speaker 02:
Do I understand your argument?

[00:20:13] Speaker 01:
Yes.

[00:20:13] Speaker 01:
And so I just think that to the extent that the state hasn't shown that it absolutely wins on the strict scrutiny standard under RLUPA, I don't think Mr. Chernetsky's done enough to show that the state can't win on that.

[00:20:30] Speaker 01:
And so I do think that there is a genuine issue of material fact here that would need to be resolved by the trial court.

[00:20:39] Speaker 00:
Council, we spent a lot of time about the flammability and rightfully so, because as my colleague Judge Christian has pointed out, that is a significant problem within prisons.

[00:20:52] Speaker 00:
But toxicity is maybe not as significant in terms of the potential overall damage, but it's a pretty significant problem.

[00:21:04] Speaker 00:
Now, you maintain that the oils that are being sold by the Nevada penal system are non-toxic, is that right?

[00:21:17] Speaker 00:
That's correct.

[00:21:18] Speaker 00:
What's the evidence about the natural oil?

[00:21:22] Speaker 00:
Does anybody have any evidence in the record about the natural oil being toxic or non-toxic?

[00:21:27] Speaker 01:
I don't think there's anything specific on the record on that point, Your Honor.

[00:21:30] Speaker 00:
You know, it's really frustrating that this, I'll be honest with you, this wasn't flushed out better below because, I mean, you're relying on toxicity, but you're unable to tell us that the natural oil is toxic.

[00:21:51] Speaker 00:
And there's nothing in the record to tell us whether it is or it isn't.

[00:21:55] Speaker 01:
I appreciate your frustration, Your Honor.

[00:21:59] Speaker 00:
You know, toxic substances are not good for the eyes.

[00:22:03] Speaker 00:
They can be used as a weapon.

[00:22:04] Speaker 00:
People can commit suicide with toxic substances.

[00:22:08] Speaker 00:
And they can also be misused in many other ways.

[00:22:13] Speaker 00:
Put in other people's food.

[00:22:15] Speaker 00:
I mean, all kinds of issues.

[00:22:18] Speaker 00:
And yet we don't have anything in the record on it.

[00:22:22] Speaker 01:
I agree that the record is devoid of any information on that, Your Honor, and I completely understand that that's frustrating for the Court.

[00:22:31] Speaker 03:
Let me just check.

[00:22:32] Speaker 03:
Are there any other questions for counsel?

[00:22:33] Speaker 03:
I don't have any.

[00:22:34] Speaker 03:
I don't think we have any other questions.

[00:22:36] Speaker 01:
Thank you, Your Honor.

[00:22:36] Speaker 03:
Thank you.

[00:22:38] Speaker 03:
We'll hear rebuttal, please.

[00:22:49] Speaker 00:
If I if I may counsel Since your client is the one who wants to use this natural oil Do you have any evidence in the record that says anything about whether it's toxic?

[00:23:03] Speaker 05:
Not specifically on that point your honor, but well

[00:23:07] Speaker 00:
I mean, what do you mean not specifically on that point?

[00:23:10] Speaker 00:
It's the point.

[00:23:12] Speaker 05:
Your Honor, the state hasn't even really argued toxicity specifically.

[00:23:17] Speaker 05:
Sure they have.

[00:23:18] Speaker 05:
The state has primarily focused on flammability.

[00:23:22] Speaker 00:
Well, they raised toxicity.

[00:23:24] Speaker 05:
Yes, Your Honor.

[00:23:25] Speaker 05:
The strongest evidence that Mr. Ternetzky has, affirmatively, and I would emphasize that it's the state's burden here.

[00:23:31] Speaker 05:
The affirmative evidence that Mr. Ternetzky does have is that prior to 2004, natural oils were allowed.

[00:23:38] Speaker 05:
He used them in worship.

[00:23:39] Speaker 05:
Fire was allowed.

[00:23:41] Speaker 05:
He used that in worship.

[00:23:42] Speaker 03:
And... Oh, wait a minute.

[00:23:43] Speaker 03:
You just said fire past tense, and I asked earlier, is he still able to use flame?

[00:23:48] Speaker 05:
Yes.

[00:23:48] Speaker 05:
It was briefly banned in 2004 when this kind of overarching... Using it now?

[00:23:54] Speaker 03:
Yeah.

[00:23:54] Speaker 03:
Okay.

[00:23:54] Speaker 03:
And so, but to your other point, natural oils were okay for a period of time?

[00:23:59] Speaker 05:
Yes, Your Honor.

[00:24:00] Speaker 02:
So we really haven't, except with your colleague on the other side, explored the two different summary judgment motions.

[00:24:08] Speaker 02:
So let's just for talking purposes say that the state summary judgment motion should have been denied for a variety of reasons, and we won't go into what those might be.

[00:24:20] Speaker 02:
He suggests that Mr. Ternetzky's summary judgment motion should not be granted because there's not enough there to grant him summary judgment that wouldn't raise a material issue of fact.

[00:24:32] Speaker 02:
What is his response to that?

[00:24:34] Speaker 05:
The reason that summary judgment in Mr. Ternetzky's favor is appropriate is because Mr. Ternetzky has established that a total ban is not the least restrictive means.

[00:24:46] Speaker 05:
There's .

[00:24:47] Speaker 03:
.

[00:24:47] Speaker 03:
.

[00:24:47] Speaker 03:
Be specific.

[00:24:48] Speaker 03:
How has he done that?

[00:24:50] Speaker 05:
Your Honor, Mr. Trenetsky has put forward evidence that he did this prior to 2004, and an in-doc chaplain said that during that time there were no incidents of abuse or misuse reported in the entire system.

[00:25:00] Speaker 05:
And Mr. Trenetsky also suggested multiple times to in-doc ways that he could accommodate them.

[00:25:06] Speaker 05:
I want to emphasize, RLUPA is about prisons accommodating Mr. Trenetsky, but it's been Mr. Trenetsky who's been reaching out.

[00:25:12] Speaker 03:
But we have one very clear question that we've all been asking.

[00:25:16] Speaker 03:
This goes to the safety concern.

[00:25:18] Speaker 03:
You know, the toxicity, flammability, how has he met his burden?

[00:25:21] Speaker 03:
And your first point is he did it previously in prison up to 2004, right?

[00:25:28] Speaker 05:
Yes, Your Honor.

[00:25:29] Speaker 03:
Okay, and do you have other points you want to make for us on this question?

[00:25:33] Speaker 05:
He's proposed that they could allow him to have just a few drops for worship.

[00:25:37] Speaker 05:
It's hard to imagine if he was checking out just a few drops to go worship, if it was away from the fire, how that would cause any sort of safety issue.

[00:25:47] Speaker 05:
Because it's their burden, and at this point they've had three bites at the apple, I mean, 2010 this court remanded after summary judgment, 2013 this court remanded after summary judgment, 2017 this court remanded.

[00:25:59] Speaker 05:
And in 2017, Mr. Trunetsky, at the district court's request, provided a specific list of oils.

[00:26:06] Speaker 05:
to the state, and the state had a year to provide evidence about why it was denying that request after 17 years of denying that request, and they didn't come up with anything specific to that list of oils.

[00:26:18] Speaker 05:
Mr. Chinetsky has a burden to prove that they can't meet their burden, and he has established that because of the pre-2004 history and because he's proven that a total ban is not the least restrictive means, and the state can't meet their burden to prove that it is.

[00:26:38] Speaker 03:
Nothing further.

[00:26:38] Speaker 05:
Thank you, Your Honor.

[00:26:39] Speaker 03:
Thank you all for your advocacy.

[00:26:41] Speaker 03:
We'll take that case under advisement and we'll go to the next case on the calendar.