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Good morning, Your Honors, and may it please the Court.

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My name is Laura Hill, and I'm appearing on behalf of Plaintiff Appellant William Rauser.

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I would like to request three minutes for rebuttal.

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Please watch the clock.

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Thank you.

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This appeal arises.

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incense, a fire pit, an altar, and an altar cloth that are essential for his use in group worship.

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Over the last 13 years, unfortunately, the defendants have repeatedly failed to comply with this consent decree, nor has there been any meaningful enforcement.

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In fact, in 2016, this court reversed a minute order that vacated the consent decree on the grounds that the defendants had not been in substantial compliance with all of its terms.

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The court also, at that time, warned the district

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These problems have continued today.

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Mr. Rauser is currently incarcerated at Mule Creek State Prison, and since he was transferred there in 2021, he has repeatedly notified the district court that the defendants continue to be in breach of the consent decree, including most recently by filing the motion for preliminary injunction that is at issue on this appeal.

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The district court denied that motion,

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was filled with factual errors and legal errors, and we explain them in detail in our brief.

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I'm not going to go into all of them, but I would like to highlight some of the clear errors that undergirded the court's ruling.

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First, the district court was clearly wrong when it found that Mule Creek does not allow prisoners access to open flame for security reasons.

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The record, including evidence presented by the defendants, shows the exact opposite.

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According to a declaration,

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Take it for the downbeat when they walk in.

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Alright.

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Okay, so the Native American worshippers have a separate area that they're allowed to use.

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Okay.

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Based on the record and based on the Eshelman Declaration, they congregate in a group, or they can congregate in a group, around a fire pit where they're allowed to light a fire.

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a group of Indians or a group of Indians to get around the fire, but the fire is out, the rocks are hot.

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Do I have it wrong?

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Respectfully, Your Honor, I believe you do.

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That is what the district court found.

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But the Eshelman Declaration, that sentence in full, the district court selectively quoted it.

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And it says that the – let me make sure I'm quoting this in full.

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It says in full the fire pit is not used by the entire Native American congregation except, and this is the key phrase, except at the beginning of the ceremony when the congregation offers prayers and or medicine to the fire.

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So that activity of congregating at the beginning and offering prayers and or medicine to the fire, that's where this comes from.

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That appears to be after they offer prayers and or medicine to the fire.

[00:04:27] Speaker 01:
So they offer, in your view, all the Indians get around the fire, the fire is lighted and all the Indians are there.

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And then after the fire is lighted, what happens to the rocks?

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My understanding is that the rocks are then used in the sweat ceremony.

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So the rocks are already there?

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Yes.

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Alright, so the fire is heating the rocks when all the Indians are around?

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And so the rocks are heated, and the Indians go away.

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They don't worship the rocks anymore.

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They used the rocks in the sweat ceremony itself, but I do want to clarify that this is all conducted in the same area.

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So the fire and the sweat ceremony, the lodge, they're all in the same space and there's no real meaningful separation there.

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Could I ask, again, looking at the Eshelman Declaration, there's this sentence that you read at the beginning of the purification

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as the Native Americans do not use the fire pit or access open flame during their ceremonies, which seems to be directly contradictory to your statement that they are using flame at the beginning of the ceremony.

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So how do we understand those two senses together?

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Frankly, Your Honor, they're very hard to reconcile.

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But it is absolutely correct that the Lance Eshelman said

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I would also point, Your Honor, to a policy for the June 2021 religious programs departmental operations manual supplement at ER 49.

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This was attached to the Eshelman Declaration.

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That policy provides that inmates on a heat risk list at Mule Creek are not allowed access to this ceremony, and they can be provided an alternative ceremony

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Yes, correct.

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If the district court judge can choose one of those two to make a finding, how do we reverse him on the clear error standard of Hinkson?

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The clear error was from not considering or quoting all of the evidence here.

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I would also note that Lance Eshelman – Well, but he quoted all the evidence.

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He just chose one of the two contradictions.

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ignored part of the Eshleman statement, which is clear error under this part of the statement.

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He ignored it.

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He chose between saying, open fire, yes, crew, and open fire, crew, no.

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If Your Honor would like to reconcile the two sentences, which I think is what you're asking me to do.

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tries to be – it seems to be attempting to make a distinction between the ceremony that is the purification, sweat ceremony, and what is done before.

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That is how I read the second sentence, and perhaps that addresses that.

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And if that's a rational inference from the evidence, right, it's not clear error?

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It – it – there is clear error.

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it go the other way.

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So there are two different interpretations that could be put on Isherman's declaration – one for you, one for them.

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Q It's clear – it's clear error to ignore evidence in the record.

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The district court selectively excerpted the record here.

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court address that sentence at all?

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Did he say anything about the language that accepted the beginning of the purification ceremony when the congregation offers prayers and remissance of the fire?

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Did he quote it or did he address it?

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He did not address it.

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Okay, did he quote it?

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No, I don't believe so.

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Okay, and you say there's other evidence in the record indicating that fire is allowed in certain circumstances

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Yes, and there's the heat risk policy.

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There's the September 2021 outdoor religious grounds policy, which Mr. Rauser attached to his reply.

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He also attached a similar policy from 2020 to his motion.

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And that policy makes clear that the outdoor religious grounds is not allowed to have a fire pit, but the Native American grounds are.

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lights a fire and then uses that fire to heat rocks and worship services over the hot rocks.

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And that's what it is.

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Apologies, Your Honor.

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My understanding, and from the record, is that the Native Americans take the rocks that are heated within the fire pit and take them over a short distance to a separate area, but within the same general area, to conduct their

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congregation is gathered around the open fire, is that correct?

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That's correct.

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So this is a this is a critical error because the defendant's entire justification for depriving Mr. Rausser of his rights under the consent decree is that all inmates at Mule Creek were prohibited

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or was he just asking for himself?

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So the consent decree applies to Mr. Rauser and it protects his individual rights.

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Those rights, a part of those rights are to engage in group worship and so to protect his rights as an individual under the consent decree, the Wiccan congregation would need access to the fire.

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I do want to clarify that he's only entitled to a 12-inch

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beach or anything like that.

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This is a small fire.

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issued if the plaintiff meets its high burden of establishing a clear showing of entitlement to relief.

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And the denial of this plenary injunction should not be overturned unless the Court abuses discretion by either applying the wrong legal standard or by

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to pursue this now, or is the whole case dismissed?

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Well, that's a good question, Your Honor.

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The consent decree is still alive, so what we're talking about here is a plenary injunction that was filed three years ago.

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Likely, the evidence is stale at this point.

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But it should be done in a properly filed motion with all the claims that he wants to bring, with all the evidence that he wants to include, and seeking relief that is proper, which he didn't do here.

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So he does have – so this isn't the end of the road here.

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And that is important because, again, what we're dealing with is a one-page preliminary injunction motion, which had very sparse evidence.

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then which asked for relief that

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the request of relief.

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And so I do think that while people – excuse me – that while the court and the parties did address a potential breach, he did ask for the relief of reinstating the preliminary injunction, which the district court just can't do.

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So with respect to the issue of fire, which I know that a lot of time was spent on, I do think that

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declaration is clear that at the beginning what happens is one inmate and one inmate only heats rocks over a fire.

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Then those rocks are transferred and used for the group ceremony.

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Now we understand that the declaration says that at the beginning the Native Americans offer prayer to the fire.

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sentence says, the fire pit is not used by the entire Native American congregation.

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That's your position.

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But then there is an exception.

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He says, except.

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Except at the beginning of the purification ceremony, which says, at that point, the fire pit is used by the entire Native American congregation.

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When the congregation offers prayers and our medicine to the fire, that's a pretty strong statement saying that there's an exception to the rule that the fire pit is not used by the entire Native American congregation.

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So it's hard to understand how that sentence corresponds to the next sentence, which suggests you can make a rational inference.

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Either way, you could just choose between the two.

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Do you have another way of reconciling those, or why is net error for the district court not even to acknowledge the exception language?

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Right, but clear error of fact.

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A clear error of fact against the views of discretion.

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So we're trying to figure out whether there was such a clear error in not giving any weight to a fairly clear statement that the entire congregation uses the fire at a certain point in the ceremony.

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I don't believe that that is a clear error to, again, weigh the different statements which

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then another very clear statement that no Native American congregation does not access the fire pit or have access to the open fire, but instead the heat is used by the heat from the rocks that were previously heated.

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So, you know, we do have... Does the district court address the sentence that we've been talking about?

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The district court mentioned that the

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he interpreted it was, you know, when they said, offer prayer to the fire, that is the heated rocks that were previously done because the very next sentence clarifies that they don't have access to open flames and instead the heat is generated from the fire.

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So I think that that was... So I reversed a fire, not heated rocks, which you're saying that the, because they clearly

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illogical or implausible, which is what is necessary for clear air.

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So the court, it's abuse of discretion analysis.

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Let me ask you something.

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Did Mr. Rauser here, did he file an affidavit or any proof as to what the practice was of the Indians?

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Not at all, Your Honor.

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As a matter of fact, he just says they are allowed to burn

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about the Native American youth.

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Do you oppose a remand for an evidentiary hearing to find out just what is the Indian practice?

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I do oppose that, Your Honor, because, again, here we're dealing with a three-year-old preliminary injunction motion, which was a one-page motion that just was not supported by the evidence, and Mr. Rausser did not meet his burden.

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The district court did not

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There's no argument that the district court applied the correct legal standard, and there is no abuse of discretion here because the district court's findings were not illogical or plausible.

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So this court can affirm the denial, and Mr. Rauser still has the ability.

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your honor, if that would be allowed in the prison setting.

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But I do think that he might be able to observe or otherwise gather the evidence needed.

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And so just to quickly touch on other points that were raised by counsel, she stated that

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flame or fire or candles or a fire pit.

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It is all subject

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Let's say that we think that the Native American congregation does have access to fire.

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Doesn't that undercut the district court's reasoning about the least restrictive means and whether alternatives are available?

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How would that affect our analysis?

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Well, I think, Your Honor, that the district court's discussion of the First Amendment and the RLUPA, frankly, was unnecessary, as we've said,

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court was not required to go back and do a RLUPA or First Amendment analysis.

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I don't believe that is true.

[00:23:08] Speaker 03:
So are you saying that the consent decree would be erased, even as to new complaints?

[00:23:13] Speaker 02:
No, Your Honor.

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If, in fact, he has a completely different First Amendment or a RLUPA claim, he can bring that claim, certainly.

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But everything that he brought in this

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settlement agreement and the eventual consent decree.

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So for those claims, I really doubt Mr. Rauser is arguing that every time he believes that his first amendment or a looper rights are being violated by something that's covered from the consent decree, that he would have to raise and prove new claims.

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And for the same reason, there's no reason why the district court had to perform this analysis.

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The issue is about

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Rouser actually made in his preliminary injunction motion.

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Moving on to other issues that were raised in terms of denial, Mr. Rouser claims that he was denied an altar, an altar cloth, and incense.

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But besides these bare allegations, there is no evidence to support these claims.

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The preliminary injunction motion, again, just simply states this has been denied, but the prison does not – is not required to provide these items to Mr. Rausser.

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He must procure them himself.

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And there is no allegations and no evidence in the preliminary injunction papers that he was denied the ability to order the items or that he had bought the items but did not receive them from the prison.

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is that the defendants have allowed Mr. Rauser to access and possess these religious items that were afforded to him under the consent decree.

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So under these circumstances, the Court did not abuse its discretion by finding that Mr. Rauser's altar cloth

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for it or somebody.

[00:25:31] Speaker 02:
Yes, so it has to be donated or he has to come up with the money himself.

[00:25:35] Speaker 02:
That's true with the other religions.

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It is true overall and that's why I believe it was made clear in the consent decree.

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items for Mr. Rausser.

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And again, there's just no allegation in the record of the P.I.

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that Mr. Rausser actually did buy these items or attempted to buy them and they were denied by the prison.

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So yeah, it's summary.

[00:26:15] Speaker 02:
Again, we are dealing with a, sorry, a preliminary injunction motion where

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showing that he was entitled to relief.

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And under this record, he just did not do that.

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And the district court did not abuse this discretion and make any implausible or illogical factual findings.

[00:27:07] Speaker 04:
Thank you.

[00:27:08] Speaker 04:
Three points in rebuttal, Your Honors.

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First, this court can consider ralupa in the First Amendment.

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It is undisputed by the parties that the consent decree should be interpreted according to the intent that the parties held at the time it was executed and its plain meaning.

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The defendant's position would require this

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understanding the intent of the parties.

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Second, it is clear error to simply ignore record evidence.

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That's in the Martinez-Gonzalez case we cited in our brief.

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In that case, this court reversed when the district court ignored evidence that went counter to its factual findings.

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That applies here.

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Third, I think an evidentiary hearing would be appropriate if your honors are not inclined to just

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reverse.

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At this point, I think you're right that nobody really knows what's going on in the Emile Creek.

[00:28:32] Speaker 04:
We have some evidence in the record, the evidence we cited that shows, in our view, Native American inmates at least one.

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He did allege that in his reply brief, so in conjunction with his statement,

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His reply brief said, I have been denied that.

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There was also evidence that he submitted with the prior breach of contract motions that he thought were still pending in the district court that showed he had tried to order an alter cloth for $32 and the defendants had refused to provide it to him through the mail room.

[00:29:34] Speaker 04:
I think it's also important here to note what evidence the defendants have provided

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the best of his knowledge.

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That's the start of paragraph 11.

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Mr. Rauser has been provided with everything he's required or entitled to under the consent decree.

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That is not a statement based on personal knowledge, and it's not sufficient to carry the government's burden.

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And if you have no further questions...

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defendants and the government should not interfere with his access to ordering those items.

[00:30:24] Speaker 04:
If there are no further questions, we request that this court reverse and remand for further proceedings.

[00:30:29] Speaker 04:
Thank you.

[00:30:31] Speaker 03:
We thank both sides for their argument of the case of William Rouser versus Fia White and B.W.

[00:30:37] Speaker 03:
Meads as submitted.

[00:30:39] Speaker 03:
We thank you for taking the