On November 13, 2024, Nevada prisoner Anthony Thomas Chernetsky finally secured what he had fought over 18 years to get from the state Department of Corrections (DOC): Permission to use natural anointing oils and build a sweatlodge to practice his Wiccan faith.

In May 2006, Chernetsky sued the state and several DOC officials under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc, alleging that DOC’s AR [Administrative Regulation] 810 violated his rights to practice his faith—which required natural anointing oils, and which AR 810’s categorical ban on those oils substantially burdened.

In its long and convoluted history, the case went twice before the U.S. Court of Appeals for the Ninth Circuit. Chernetsky prevailed, at least in part, both times. On remand to the federal court for the District of Nevada, Defendants’ motion for summary judgment was granted, while a cross-motion for summary judgment filed by Chernetsky was denied. He appealed again.

Returning to the appellate Court a third time, Defendants claimed that DOC had removed its ban on anointing oils, thereby mooting Chernetsky’s claim. But the Ninth Circuit found this argument “without merit.” The revised AR 810 made only synthetic oils available, while still denying the natural oils that Chernetsky claimed his faith required. The Court drew a parallel to Johnson v. Baker, 23 F.4th 1209 (9th Cir. 2022), which held that whether the prisoner plaintiff “has access to unscented oil is immaterial when his faith requires scented oil.” Because AR 810 “continues to ban natural anointing oils,” the Court continued, “Chernetsky’s RLUIPA claim is not moot.”

Under the RLUIPA, the Court said, the government is prohibited from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution” absent a showing that doing so (1) furthers “a compelling government interest” and (2) “is the least restrictive means.” To state an RLUIPA claim, therefore, a prisoner “must show that: (1) he [or she] takes part in a religious exercise, and (2) the State’s actions have substantially burdened that exercise,” as held in Walker v. Beard, 789 F.3d 1125 (9th Cir. 2015). Once those elements are satisfied, the burden shifts to the government to prove that “its actions were the least restrictive means of furthering a compelling interest.”

It was uncontested that AR 810 substantially burdened Chernetsky’s religious exercise. But the DOC claimed that its compelling interest in doing so was the fear that “natural oils may be weaponized when used in proximity to open fire.” Yet no evidence was produced demonstrating the flammability of natural oils nor the potential for weaponizing extrememly small quantities of them.

The Court also rejected the government’s alternative argument that inspecting “every bottle of oil Chernetsky obtains” imposed an undue administrative burden. As the Court explained, “[t]he State ‘provides no reason why it could not arrange for a pre-approved outside vendor to supply the requested oils and allow the prison chaplain to retain control of and dispense the oil as needed during religious ceremonies.” 

Because the government failed to carry its burden, the Court said, Chernetsky could prevail “merely by pointing out that there is an absence of evidence to support the State’s case,” as in Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007). But the Court was also mindful that the parties were “now in the eighteenth year of this litigation,” and their efforts to negotiate a resolution “have been unsuccessful.” In the Ninth Circuit’s decision on March 26, 2024, the district court’s order was therefore reversed and the case remanded for entry of a judgment “in favor of Chernetsky.” For his successful appeal, the prisoner was also awarded attorney’s fees on June 26, 2024. See: Chernetsky v. Nevada, 2024 U.S. App. LEXIS 6983 (9th Cir. 2024); and 2024 U.S. App. LEXIS 15566 (9th Cir. 2024).

Costs of $1,597.75 were taxed to Defendants by the district court on November 11, 2024. Meanwhile, they asked for clarification of the judgment, and Chernetsky asked to hold them in contempt for not building or allowing him to build the sweatlodge. In its order two days later, the district court granted Defendants’ request, clarifying that the injunction against AR 810 applied only to Chernetsky. It also denied his contempt motion, noting that the Ninth Circuit did not order the DOC to build a Wiccan sweat lodge but ordered that Chernetsky be allowed to build one for himself, for which the district court set a deadline of December 6, 2024. See: Chernetsky v. Nevada, USDC (D. Nev.), Case No. 3:06-cv-00252.

According to a letter Chernetsky sent to PLN, he offered to settle this case in 2012—asking simply that the prison’s religious practices return to their November 2004 baseline and that his filing fee be returned. The Defendants declined. So for 12 more years, Nevada paid attorneys to keep fighting Chernetsky over a few drops of oils in his religious practice. He and the DOC notified the Ninth Circuit on October 21, 2024, that they reached an undocketed settlement of his attorney’s fees; though he proceeded through much of the case pro se, Chernetsky estimated that he spent at least $5,000 to secure his victory. Beyond attorney’s fees, though, damages are not recoverable under the RLUIPA, as held in Sossamon v. Texas, 563 U.S. 277 (2011).  

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