Hagener v. Wallace

No. 01-385

%I, JEFF Hd1I;E:NER, Director. MONTANA
DEPARTMENT OF FISH, WILDL,lFE 'AND PARKS,

Pldlntiff Respondent,

I,EK 1YAL.LACE arid PAME1.A \VllLl.ACE
d b l a BIG VELVET R:INCH,

APPEAL FROM: District Court orthe First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorotliy McCarter, .ludge presiding.

For Appellants.

Stanley T. Kalcczyc, Kirnberly A. Beatty, Browning. Kaleczyc, Reny Xr
FIoven, P.C., Helena, Montana

Arthur 1Vitticil (ar.gued): Attortley at i.aw, Roze~nan:Montana

For Responderrt:

Robert N. Lane (argued). John F. L>ilchl ilge~icyCorrnsel and Special
:\ssistiarit :lttorney General, t-telerna, kloi~taiia

For Amicus:

. 7f~lliolske
(argucdj, Attorneq-at Law. Missoula. Montana

Argued m d Submitted: Iaiiuary 8, 2002
Decided: May 23, 2ii02
4
Justice 'krrv X. I'rieweilcr delivered the Opinion of thc Coufl.

" : i he
"-' Plaintiff, M. ieffiiagener, Director ofthe Montana Ilepartrnenr of Fish, Li7ildiifc

and Parks (FWP), brought this action on behalf of FWP in the District Court for the First

Jndicial District in L'ewis k Clark County, initially seeking a temporary restraining order

prohibiting the Defendants, Len and Parnela CVallace, from causing or allo\ving the transfer

of approximately 500 game farm elk from their game farm in Kavalli County to the Crow

Indian Reservation for release into the wild. The District Court granted the temporary

restraining order. Following a show cause hearing to consider why a permanent injunction

should not be entered, the District Court permanently enjoined the Wallaces from transferring

their game f a n elk to the Crow Indian Reservation. Tile LVallaees appeal the order of the

District Court. \Ve affirm the District Court's injunction.

'
1
2 The following issues are presented on appeal:

*3 1. Did the District Court err wlten it pem~anently
enjoined the Wallaces from causing

or allowing their game farm elk to be transported to the Crow Indian Reservation for release

into the wild?

74 2, Did the District Court erroneously extend FWP's jurisdiction to activities within

the exterior boundaries of the Cro\n-Indian Reservation?

715 3. Did the District Court's permanent injunction violate the Comtnerce Clause of the

United States Constitution'?
 F-iClljAI. i\ND FRC)CEDUKAL BACKCiiSOl,rNif

76 i,cn and Pamela Wallace own and opcratethc Rig \-elvet Ranch, a iicenscd alicrrtative

gamc farm located in Ravalli County, Montana. After Montanans approved Initiative 143

through the citizen initiative process in November 2000 to prohibit shooting alternative

livestock for a fee or other remuneration and prohibit the transfer of existing livestock

licenses. Len LYallace sought to reduce the size of his herd by donating approximately 500

head of elk to the Crow Indian 'Tribe. The Tribe, whose reservation is surrounded on three

sides by the State of Montana in southcentral Montana, accepted his offer. Wallace then

asked F\YP by telephone what conditions FWP would agree to for the transfer of the elk to

the Tribe for release into tile wild. 1n a letter dated April 30, 2001, FWP's director, Jeff

Hagcner, responded to Wallace's inquiry. Hagener concluded that such a transfer would

violate .Montana law. specifically 3 87-4-414(6), MCA, and 3 87-5-71 1, MCA, stating

"[bloth of these statutes are intended by the legislature to protect native wildlife populations

from genetic pollution, feral populations and disease transmissions which could occur if

alternative livestock are reltased into the wild."

7
:I The Wallaces responded to FU'P's letter on May 1: 2001. The Wallaces did not

directly address tfagener's comments but derided FiVP for what the Wallaces dee~ned be
to

F I W s bias against game fkrnm. Furthennore, ihe Lk'allaces clairned that their elk were

genettcaily superior to Montana's native elk because Big Velvet elk "bugle, ha-r-csome real

antlers. and are not as spooky" as native elk.
"8 On the morning of May 2, despite FWP's letter; the Waiiaces allowed the

shipn-icnt of sixty-eight elk from their facility in Darby, Montana, to the Crow Indian

Resen-atiort. Tlre truckload of elk had been inspected by representatives from the

Department of i.ivestock (DOL,) and were certified as healthy for shipment. As is customary

in livestock transactions, the parties exceuted a bill of sale and the Tribe took title of the elk

at the Wallaces' facility. 'The Crow Tribe arranged for and paid for all transportation costs

to the Reservation. The Tribe did nor have a game-proof fence in place around the exterior

boundary of the Reservation. The sixty-eight elk were released into the wild.

9
I: When FWP heard of the transfer at about no011 that day, it immediately sought and

obtained an e.xpcei-re temporary restraining order from the First Judicial District Court, Lewis

and Clark County. prohibiting the Lt'allaees from causing or allowing their elk to be

transported to the Crow Indian Reservation. On May 3, 2001, the Wallaces moved to

dissolve the temporary restraining order. The District Court denied the Wallaces' request on

May 7,2001. On May 9,2001, the District Court held a show cause hearing to consider why

the LVallaces should not be permanently enjoined. On May 10, 2001, the District Court

pel-manentlyenjotned the Wallaces from "transferring their game farm elk to the Crow Indian

Reservatron." The Wallaces appealed the D~strtct
Court's order 011 May 11,2001.

lit0 ,:It the time FWP ohrained the temporary restraining urdcr. the Big Velvet herd had

been certified by a state xjctcrinarian as a tuberculosis-accredited herd, meaning that the herd

had hccn tuberculosis-free based on three consccutivc years of testing all animals twelve

months or older. The Rig Velvet herd was also in the process of being certified as

4
brricellosis-free sincc all test-eligible animals had rested bruceliosis-ii-ee for three cot~secuiivc

years. i l ~ veterinarian determined iiiat the herd was fret: of elk-red deer llybridization and,
e

based on the large number of Big Vcl\-ct elk tested, opined that chronic wasting discasc

(cwnjdid not exist in the herd. Therefore, because thc veterinarian determined that the Big
Vel~ct
herd was tuberculosis-free, brucellosis-free, CWD-free and genetically pure, he

concluded that the herd posed no realistic threat to Montai~a's
livestock, native deer and elk

populations. or human liealth.

71 1 The Crow Tribe has not participated in these legal proceedings and has not asked to

intervene or file an amicus brief addressing the legal issues presented in this case. According

to a letter sent from an attorney representing thc Crow Tribe to the District Court, dated May

8, 2001; the authenticity of which was acknowledged at oral argument, "[iln the Tribe's

opinion, this is a matter regarding the assertion of State law over a citizen of the State of

,Montana, not the asscrtion of Montana law on the Reservation. As a eonsequenec, the Tribe

has l~ttle
interest in this case at this time."

STANDARD OF REVIEW

71 2 Typically, 11-creview a district court's grant or denial of an injunction to determine if

the court abused its discretion. See Jurrett v. Vallej;Park, Inc. (1996); 277 klont. 333,346,

922 P.Zd 485, 493; Bui1i.r (1901), 251
v. Cerlrzi~i~ii Mont. 107, 114. 822 P.2d 1067, 1072;

Su~~zpsor? (;r00!115 (1988), 230 Mont. 190, 194, 748 P.2d 960, 063. However, where, as
1
:
.

here, the district court bases its decision to grant such relief upon its interpretation of a

statute, no discretion is involved and we rclriew the district court's conclusion of law to

5
determine whether it is correct. ,l.fi. v. ,2lonricizti iiiglr ScJzooiA.r.s'tz 280 Mont. 123,

P.2d
130, " 2 ) 23'1,213.
1'

I Resolution of this case also involves interpretation or application of the C:ornmeree

Clausc of the United States Constitution. We liltcwise review constitutional interpretations

for correctness. Hetzty I>. State Cor~zpen.sutiorr Ftctzd, 1999 MT 126, .j 10,293 Llont. 448,
frz.7.

q; l0,%2 P.2d 456,l 10 (citingState v. Blitler, 1999 MT 70, ! 7,294 Mont. 17; '1/ 7,977 P.2d
j

1000,11 7).

[>ISCUSSION

ISSUE 1

7/14 Did the District Court err when it permanently cnjoincd thc l$'allaces from causing

or allowing their game faml elk to be transported to thc Crow Indian Reservation for release

into the wild?

115 The Wallaces contend that the District Court erred when it issued a permanent

injunction prohibiting them from transferring their elk to the Crow Tribe because the party

seeking the injunction, FWP, lacked jurisdiction over the inspection, transportation, and

health of the alternative livestock they owned. The Urallaces assert that pursuant to

Montana's statutory scheme rcgulating game farn~
licensees, DOL, not FWP, had authoritj-

and primary juuisctiction over the transfer. In illis case, DOL inspected the herd for

brucellosis, tuberculosis, elk-red deer hybridization, and CWD, and granted a permit

allo\iing transport of the elk to the Crow Inctian Reservation. Therefore: the Wallaccs

contend that the transfer shoi~ld
11ave been allowed. Alternatively, the Wallaces argue that

6
even if FLb'P had authority over tlie transfer; it could not demonstrate that harm would resuit

from the transfer given DUl.'s concirrsion that the Big Veivct herd posed no reaiistic ii~rcai

to Moi~tana's
livestock, native deer and elk populations, or humaii health.

6 ln response, FMrPasserts that the Wallaces violated various statutoqrequircments for

game farm licensees whicli were its responsibility to enforce, whether or not they satisfied

DOL's requirements. For exanlple, FWP contends that it has the duty to protect native

wildlife populations, enforce the fencing of game fauns, and prevent the release of game

farm elk into the wild. FWP contends that upon hansfer of the Big Velvet herd to the Tribe,

the elk ~ t o u l d have bcen confined behind a ganic-proof fence, uould not hate been
not

transferred to another licel~sedalternatn e livestock ranch, and, as a result, could migrate

back into Montana from the Crow Indian Resenation. Therefore. FWP contends that it had

a duty to act and the District Court did not err when it granted the permanent injunction.

717 The District Court agreed with FWP on the sole basis that the Wallaces' actions

violated 3 87-3-413(6), MCA. Section 87-4-414(6), MCA, provides in part that alternative

livestockmay only be kept on a licensed alternative livestock ranch. Because the Crow Tribe

bvas not alieensed altetnative livestock facility under Montana law at the time ofthe transfer,

the District Court concluded that neither FWP nor DOL had the authority to permit the

transfer of the Big Velvet herd to the Crow Tribe, LVc conclude that rlie District Court

ani\:ed at the corrcct rcs~tlt the fo!lowing reasons.
for

TI8 Section 87-4-408, M\.IC:"I, generally delineates the respective responsibilities of FWP

and DO1 in the game Farm context, and provides:
7
 Jurisdiction, ji ) 'The department [FWPJhas primary jurisdiction over
alternative livestock ranches with regard to licensing, reports. recordkeeping,
e.xicr!orjhiwing, classification of certain species under 57-4-424, unlawful
capture under 87-4-418, inspection under 87-4-413>and enforeenlent of the
functions listed in this subsection.
( 2 )The department oflivestock has prirnarqjurisdictioa over alternative
livestock ranches with regard to marking, inspection, transportation.
importation, quarantine, hold orders, interior facilities: ttealth, and enforcement
of the functions listed in this subsection, [Emphasis added.]

The junsdiet~onalboundanes set forth in S 87-3-308, ILICA, gcnerally correspond to the

underlying function of each department. FWP, as provided in 5 87-1-201(2). MCA, has a
dut) to "etiforcc all the laws of the state respecting the protection, preservation, and

propagation of fislr. game, fur-bearing annnals, and game and nonganic birds within the

state." See u l . .blatler ofBioguri (1997), 283 Mont. 313,420, 942 P.2d 100, 105 (stat~ng
~~

that the preservation ot"l.lontana's wildlife resources is a duty entrusted to FLlrP through its

regulatioii of the game farm inctustry). In contrast. DOL's primary function is to "protect the

livestock interests of the state" from disease and to promote and foster a heathy livestock

industry Seegerrcrul(J~ 8 1-1- 102(1), MCA. In the game farm context, DOL plays a critical
tj

role in the health, certification, and inspection of livestock. When disease is detected or

suspected. DOI, has the authority to either quaraiitme or mon~tor diseased herd In order
the

FFVP is generally responsible for protecting hlontana's
to protect other state hvestock. CYh~le

native wildlifi resources, DOL is primarily responsible for ensuring the health of domestic

9 GI\ en the IVallaces'u~rdlspirted
knov\!cdge that the Big Velbet herd would he released

d Resenat~on FWP's reasonable deduction that those elk
rnto the ~ r l on the Crow I t ~ d ~ a n and

8
may migrate back into Montana, we hold that FWP had concurrent jurisdiction to seek the

permancni injunction granted in this case. Generuliy, FVi'P is entrusted wit11 ihe duty of

protecting Montana's native wildlife populations. To that end. FWP must ensure that captive

alternative livestock and native wildlife populations are kept separate, in order to protect

native populations from the introduction of feral populations, genetic pollution, competition

for forage or habitat, and the spread of discase.

720 That underlying duty ofF\VP is illustrated by specific assignments of responsibility

applicable to this case. To ensure alternative livestock confinement, FlVP has the duty to

enforce "exterior fencing," and a supplemental duty to enforce fencing requirements. 87-4-

408(l j, MCA. While DOL regulates internal game farm operations and facilities, the

Legislature designated FWP as the appropriate state agency to ensure that alternative

livestock are kept separate from native wildlife populations. Pursuant to that designation and

to its ruleniaking authority provided in 5 87-4-422(1), MCA, FWP has promulgated game-
proof fencing requirements to protect against intermingling. See Rules 12.5.1531 through

- 1536?ARM. Based on FWP's jurisdiction over exterior fencing and FWP's knowledge that

the Big Velvet herd would not be contained behind a game-proof fence upon delivery to the

Crow-Tribe, FWP had thejurisdictional authority to seek the pernmnent injunction to prevent

thc transfer.

"1 The Wallaces note that the principle statutc enumerating fencing and enclositre

requirements, 3 87-4-426, '11CA (1999), was repealed by 1-143. However, that statute was

repealed because the fe'enc~ng enclosure requtrements set forth in that scctlon mere to be
and

9
considered in dcterrnir~ing
wilethcr a new alternative iiveseock license shouid be issued, and

i- prohibited the issua~~ccany trew allematice livestock licenses. T'nci.c-fore;there was
143 of

no furthcr need for $87-4-426, MCA ( 1 999). For those who were ltcenscd under the former

lam. howelcr, thc fencing rcqu~rements
mere a condit~on the Issuance of t h e ~ hcensc and
to r

are as binding today as they \+ere when the ltcense \\as ~ssued

722 The second specific statutory basis for FWP's authority to act is its authority over all

matters dealing with the importation, introduction and transplantation of wildlife. Section

87-5-72 [(I), ILICA, provides:

Control of importation for introduction and transplantation or
introduction of wildlife. (1) Except as othenvise provided, the importation
for introduction or the transplantation or introduction of any wildlife is
prohibited unless the commission [FWP] determines? based upon scientific
investigation and after public hearing, that a species of wildlife poses 110threat
of harm to native wildlife atid plants or to agricultural production and that the
transplantation or introduction of a species has significant public benefits.

Lye interpret 5 87-5-71 1(1), MCA, to mean that the i~itroduction transplantation of crny
or

wildlife, including game farm elk, into the wild requires FWP approval. The purpose behind

that requirement \+as made explicitly clear by the L.eg~slaturein i j 87-5-701, MCA:

The legislature tinds that in order to protect the native wiidiife [of
Montana] . . . it is ncccssarj to providc for the control of the importation for
introduction and the hansplantation or introduction of wildlife in the state.
Serious threats, knoxvn and unknown, to the well-being of native wildlife . . .
resulting from the introduction of wildlife into natural habitats, necessitate the
prohibition of the importation for introduction and the transplantation or
introduction ofwildlifc into natural habitats unless it can be shown that no
harm will result from such transplantation or introduction.
7123 ?he statutes cited above underscore the i,egislaturcis resolve to prorectrhe "well-being

ofnative \vi?ciiii'e." LM-hcn native wildlife are threaiened by ihe tlarrsplaniation or introduction

oiwildliie, FPVP has authority to act. That is what happened in this case.

924 The Wallaces respond that the Rig Velvet herd was tested and determined to he

tuberculosis-free. brucellosis-free, CWD-free, and genetically pure by a state veterinarian.

Therefore, their argument follows that the herd posed no realistic threat to Montana's

livestock, native deer and elkpopulations, or human health. We disagree for several reasons.

725 First, at present, there is no test for CWD in live animals.' Infected animals can only

be conclusively tested for CWD after death. Such limitations on the testing for CtVD were

recently recognized by^ the 1.cgislature. In May of 2000, prior to the passage of 1-153, thc

tdegislatureimposed a moratorium on applications for new alternative livestock ranches until

a test for CWD in living animals was developed and approved by DOL. See May 2000 Spec.

Sess. L., Ch. 1 (Senate Bill 7). Passage of S.B. 7 was in part a response to the diagnosis of

C WD at a Philipsburg game farm in October of 1999,' and the permanent, in-eb~ersible
nature

; CWD is a htal disease of the central nervous system of captive and frcc-ranging
mule deer. white-tailed deer, and Rocky Mountain elk. Montana Fish, Wildlife and
Parks, W a f is Chro;ric 1Ycisting Ijisecrse? (visited May 2: 2002) .

The entire mule deer herd at the Philipsburg game farm ranch was destroyed in
December of 19629"). Mark Henckel, Deer-Kill ar Giinze E-un?r Co;;zpleted and Cut-cnsses
orr Way to Lab (visited May 2. 2002) .
of rho disease. 'To datc, (CVD has no: been diagnoseii in any of Montana's ficc-ranging

ccnid populations.

726 ln this case; although 196 animals were tested in 1999 and 100 animals were tested

in 2000, such tests are not conclusive that CLVD does not exist within the Big Velvet herd.

Furthermore, the record indicates that at least two Big Velvet elk recently died and that

testing for CWD was not done following their deaths, as is customary. Taken together, these

factors further limit DOL's ability to conclusively certify that the Big Velvet herd was CWD-

free.

1/27 Sccond, the Wallaces claim that their elk are genetically pure based presuinably on

the clk-red deer hybridization test. i-Toweicr, the test for elk-red deer hybridization only

assays for two phenotypic markers expressed tl~rough red deer's genetic background, one
a

for hemoglobin and one for transfeirin. These two markers are but two genes out of a larger

genetic makeup ofan individual animal. ?'herefore, the elk-reddeer hybridization test cannot

indicate genetic purity in elk.

'128 Finally, the LVallaees themselves bragged about the genetic superiority of their elk in

comparison to Montana's native elk. According to the Wallaces, Montana's "\vi1dWherd has

been transformed into a "spooky, small antlered, non-bugling elk." Regardless of the merits

of the LVallaces' contentions and without determining what desirable elk qualities are, such

clistinctions serve to underscore that there may be differences between captive elk and native

elk, and the need ibr FWP to he diligent to protect the integrity of native populations.

Therelore, we conclude that FtVP properly asserted jurisdiction in this case.

12
!I29 Given FCVP's iuri~diction~ must i~ots-determine
we whether the Wallaces iioiatcd any

statutory duties inlposcd upon chern as licensed gatnc farm ranchers. We hold titat ~vhile
the

Wallaces did comply with certain statutory obligations, they ignored others, and in the

process blolated Montana lam As a l~censec. Wallaces had a duty to dtspose of thelr
the

li~estock a manner uhsch complied u ~ t h requirements of T ~ t l e Chapter 4, Part 4,
rn the 87,

6
MCA. Sect~on 87-4-414(2), MCA, pro\ ides that a lteensee:

[MJay acqusre, breed, grow, keep, pursue, handle. Itarcest, use, sell, or dzspose
of alternative livestock arzd their progeny in atzy quuntity and at any tirrze of
year as long us the licelzsee cornplies ~'vitll requiremerlts of tizis part, except
the
that the licensee may not allow the shooting of game animals or alternative
livestock, as defined in 87-2-101 or 87-4-406, or of any exotic big game
species for a fee or other remuneration on an alternative licestock facility.
[Emphasis added.]

Therefore, the Wallaces had an express obligation to comply with each and every

requirement under the statutory scheme regulating game farms

'130 -n?e District Court based its decision to grant the permanent injunction on 4 87-4-
414jh), MCA. SpccifYcally, $ 87-4-414(6), MCA, provides in pertinent part:

Alternative livestock must be lawfully acquired by the licensee.
Alterrzntit,e livc.~esiockttzu), be kept only on N licensed alti~r~zmtive
livestock
ranch. A licensee who keeps alternative livestock owned by, leased to, or
leased from another person shall eonlply with all of the requirements of this
part as if the animal belonged to the licensee. [Emphasis added.]

In this case, the Wallaces attempted to dispose of their alternative livestock to the Crow

Indian Reservation, a destination they knew was not a licensed alternative livestock ranch.

'The Crow Tribe, in turn, intended to release the Rig Velvet lterd into the wild. Prior to the

transfer, tlie Wall:tccs contacted FWP and asked under what cond~t~ons would appro! e
FWP
the transfer. Dcspite FWP's .~varning the transfer would victiaic 3 87-44
that 14(6),MCA. thc

LValiaccs proceeded to ship thc clk to the Rcservarion. TVith knouiedgi: tl~at elk bere
tile

destined for a location other than a licensed alternative ranch and for ultimate rclease into the

wild, the District Court correctly concluded that the \%'allacesviolated their duty as licensees

to act in accordance with the requirement of 3 87-4-414(6), MCA.

73 1 The U'allaces' attempt to transfer their elk to a location without an appropriate game-

proof fence also violated Montana law. See Rules 12.6.153 1 tlirough -1536, ARM. Not only

was the destination unapproved, but the intent behind thedestination was torelease them into

the wild. Because the Crow Tribe is bordered on three sides by the State of Montana, a

distinct possibility existed that those elk would naturally migrate back into the State of

Montana. Because the Wallaces knew that the Big Velvet herd would not be confined behind

a game-proof fence. the Wallaces disposed of the~r in v~olatlon the duty ~mposed
elk of on

them by 4 87-4-414(2), to abide by all appl~cable
licensee regulations.

1/32 Finally, the Wallaces attempted to participate in a transaction whereby their elk herd

would be released into the wild without FWP approval, in contravention of 3 87-5-71 1,
MC;2. Before transplantation of wildlife into the wild is lawful, FWP must approve the

introduction based on a determination that the species poses no threat of harm to native

w4ldlife or has sigilificant public benefits. The \%'allaccsfailed to obtain FWP approval for

transplantation. In fact, the Wallaces complctely ignored FWP's response to their inquiry.

Therefore, the Wallaces violated statutory law.
 33 Tile statutes at issue rn thrs case are not mere tcchn~calrrles ilnreasondbie obstacles
or

to private enterprise. Thcq arc essentiai to ensure tile health and safely ofMonrana's natural

wildlife population. They reflect the theory underlying environmental protection that being

proactivs rather than reactive is necessary to ensure that future gencrations ei~joy
both a

healthy environment and the wildlife it supports. See gerterilllj jtfEIC: v. Ijept. of

Environ~nerztulQzicility, 1999 MT 248,777, 296 Mont. 207,177, 988 P.2d 1236,g 77.

534 FWP had a statutory basis for jurisdiction over the Miallaces as licensees, and the

Wallaces failed to comply with statutory limitations pertaining to the disposal of their game

farm elk. For these reasons, we coilclude that the District Court correctly enjoined the

Wallaccs froin causing or allowing their altcrnatix-e livestock herd to be transported to a

location where they would be released into the wild and could migrate back into Montana.

ISSLJE2

'35 Did the District Court erroneously extend FWP's jurisdiction to activities within the

exterior boundaries of the (-row Indian Reservation?

3 6 The Wallaces contclld that the District Coui-terred when it effectively extendedFWP1s

jurisdiction over alteillative livestock onto tribal land, in violation of federal law. According

to the Wallaces, the decision of the Crow Tribe to accept the Big Velvet elk herd was clearly

an exercise of tribal self-governi-iientand FWP had no jurisdictioil to interfere.

1;37 FWP contends its efforts were not an attenlpt to exercise jurisdiction over the Crow

'fribe; but an attempt to prohibit the Wal!aces, as licensed and regulated altemativc livestock

ranchers, from trmsfcmng thc~relk in \!olatton of Montana lam Furthermore, FWP

15
contends that the permanent injunctron Issued by the Drstrict Court penalns to non-indlans

outside the exterior borders of the Crow indian Reset-vation and that, therei'ore, tribal

sovereignty is not in~plicated.

"38 Throughout these proceedings, the two parties have been the \%'allaces and FWP.

Given the Wallaccs' claim that FWP's actions threaten the sovereignty of the Crow Tribe. it

is worth noting tllat tile Tribes have elected not to intervene or file an amicus brief in this

case. In the past, tribal governnlents have appropriately asserted their rights to tribal

sovereignty when at issue. In fact, the Crow Tribe stated to the District Court that this was

"a matter regarding the assertion of State law over a citizen of the State of Montana, not the

assertion of Montana law on the Reservation."

"39
i We couclude, based on our holding in Norflierr~
Rot-&r Pipeline C'o. v. Mrintnrzc~

(19891, 237 Mont. 117, 772 P.2d 820, that the Wallaces lack standing to assert that the

District Court's permanent injunction violates the sovereignty of the Crow Tribe. In

Nortl7i.1-11UOI-der, pipeline company sought injunctive relief to prevent the State from
a

assessing, levying, or collecting property taxes on that portion of a pipeline nlnning beneath

the Fort Peck Reservation trust lands. One of its claims was that the State's tax interferes to

an impermissible extent with the Tribe's sovereign rights of self-government.

730 In that case, we reiterated that one of the bases far thc standing requirement is

'jjudicial self-restraint imposed for reasons of policy." ?;ort/zt'mR o r d ~ ~ r , Mont. at 128,
237
-- P.2d at 835 (c;ititigOlsorz v. L)epirrmenr ofRevenue (lC)8G),223 Mont. 464,470, 726
i 12

P.2d 1162, 1166). The policy of w-hie11 we spoke in Not-rherri Border was the "general

16
reiuciancc of courts to dctcrniinc tkc rights of persons \vho are nut parties to the suit . . . ."

?;orriiefii Br?ri[ci.? Mont. at 128, 772 P.2d at 835; see niro !>like Power Cb.v. C.'(li-i?li?lil
237

E I Z LA.Y~1~ 4<;~.ozip, (1078). 438 U.S. 59, 80, 98 S.Ct. 2620, 2034, 57 L..Ed.Zd 595. G I G
t 4. IIZC.

(staring "the avoidance of the adjudication of rights which those not before the Court may

not wish to assert, and the assurance that the most effective advocate of the rights at issue is

psesent to chainp~onthem "). In Vortlzenz Border, u e held:

Nortlrern Border has standing by virtue of its taxpayer status to
challenge the property tax imposed on it by the State. However, it does not
have standing to assert the Tribes' sovereign right of self-government in doing
so. As we noted in Olsot7, the principle of standing requires that the plaintiff
allege "such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues . . . ."
[Citation omitted.] Northern Border cannot allege a sufficient "personal" stake
in the self-government interests of the Tribes to gain standing on this claim.

7141 being members of the Crow Tribe, the Wallaces have insriffjcjent "personal"
Witi~oui

stake in defending the self-go~ernment
mterests of the Crou 7'rtbe. If FWP's actions in thts

case interfered w ~ t h soverergn rights of the Cron Tribe, then the Crou Trrbe mould be
the

the "most effective ad5ocate of the rights at issue" as contemplated sn Duke Pmser.

I towe\er. for reasons made clear to the U~strrct
Court, the Crow T r ~ b opted not to rntercene.
e

bVrthout adequately denionstrattslg a suftic~ent"personal" stake in defendsng the self-

goxcrnrnerrt Interests of the CI.OLC
Tribe, n e conclude that the i'l'allaces lacked standlng to

assert such a clam.
 ISSUE 3

y42 Did thc Ilistrict Coiirt's pel-nlancnt injunction violate the C'ommercc C!ause oP the

United States Constitution'?

(i33 Finally, tlie Wallaces contend that the permanent injunction issued by the District

Court \iolates the Commerce Clause found at Al-ticle 1, Section 8, Clause 3, of the United

States Constitution. Specifically, the Wallaces assert that the District Court's conclusion that

the "1)efendants may not transfer their game farm elk to a recipient that is not licensed in

accordance with Title 87, Chapter 4, Part 4, MC.4" results in extraterritorial application of

Montana's regulatory scheme to foreign nations, other states, and Indian nations. Based on

the District Court's order, the Wallaces assert that they bvould be prohibited from transferring

their game farnt elk to clr1jJrecipient not licensed by Montana, including interested recipients

in foreign countries, other states, and other tribal nations. Such a restriction, the Wallaces

contend, is a regulation on cornmercc that directly conflicts with the Commerce Clause.

v4 FFVP contends that the issue in this case is whether the S'late of Montana can restrict

transportation of alternative livestock to a location outside its jurisdiction in situations where,

when released, a realistic possibility exists tltat they could migrate back into l.lontana. FWP

concedes that a literal interpretation of tlie Court's language requiring licensing under

Montana's statutory scheme, even for recipicnts in extraterritorial jurisdictions, is probably

beyond the power or authority of the State. However, based on the facts and circurnstanees

of this case, FM'P argues that the permanent injunction does not violate tile Commerce

Clause because (1) there is no act of Congress which preempts the District Court's injunction

18
and (2Montana's stattitniy f'ri.am~'~vork applied even-handcdly and accomplishes a
is

le&imate local public interest while only having incidental effects on interstate commerce.

745 The Commcrce Clause provides titat "/t]he Congress shall have Power . . . [t]o

regulate ('omnlerce with foreign Nations, and antong the several States, and with the Indian

'Tribes/.]" U.S. Const. art. 1. 5 8, cl. 3.

746 To begin, the Wallaces' claim that the District Court's language in the permanent

injunction is overbroad and violates all three subsections of the Commerce Clause, i.e., the

Foreign Commerce Clause, the Interstate Commerce Clause, and the lnd~anConimerce

Clause. is misplaced. The Issue in thts case 1s not \\hethcr the Wallaces can transfer their elk

to a non-licensed recipient in another state or another country. Thc issue before this Court

is whether the State of Montana can prevent a licensed Montana game farm operator from

transferring alternative li\estoek to a tribal reservation within the exterior boundaries of the

State of Montana \?hen the tribe has expressed the intent to release those elk into the wild

where they could naturally migrate back into Montana. It is within that context that we inilst

examine the Wallaces' Commerce Clause claim.

74'7 In doing so, we concl~idc this case Fdlls squarely within a recognized exception
that

to the traditional C'ommerce Clause analysis. Statutes regulating game farms found in Title

87, Chapter 4, Part 4, MCiZ, serve to isolate alternative livestock from native wildlife

populations and domestic livestock. By confining alternative livestock in an eellclosed area,

the Montana Legislature sought to reduce the risk of spreading CWD, genetic pollution,

interbreeding bet\veen wild and game-farnt bred elk, and the establishment of feral
pup;;lations. Rased on that pprmisi, gamc farm regulations scwc as qiiarantine laws. 'l'he

United States Sup:.cm:: Coud has repeatedly upheld quarantine !aavs against Commerce

Clause challenges.

f148 As early as 1888, the Court in flult;maflv. Chicago & IV. CV. Ry. Co. (1888), 125 U.S.

465,489,8 S.Ct. 689,700,3 1 L.Ed. 700. recognized that "states have [the] pobver to provide

by law suitable measures to prevent the introduction into the states of articles of trade which,

on the account of their existing condition, lvould bring in and spread disease, pestilence, and

death . . . ." The quarantine exception recognizes that states may have a local interest in

protecting public safety as a competing value \vhen reviewing state burdens on interstate

commerce. That interest extends to regulations on diseased or potentially diseased livestock.

,See Ashcll v. Kanscts (1908j, 200 U.S. 251, 28 S.Ct. 485, 52 L.Ed 778; Reid v. Colorczdo

443. 25 L.Ed 743, the Court stated that:

In the exercise of its police powers, a State may exclude from its
territory, or prohibit the sale therein of any articles which, in its judgment,
fairly exercised, are prejudicial to the health or which \vould endanger the lives
or property of its people.

4 Paramount in dctern~ining
whether the state regulation in question qualifies under the

R. &
quarantine cxception is the true intent behind the regulation. See Orego~~-IZi~sl~irzgton

~VLZV. I). bfV(zs/~itzgtotr
Cir. (1026), 270 1I.S. 87,05,46 S.C1.279,281,70 L.Ed. 482 (slating that

laws "cannot. . . be made the cover for discriminations and arbitrary enactments
c~uarmtinc

relation to health:. . . ."); S?il v. Sf.Louis & ,S. F Ry. C b . (1901 ); 18 1
having no reaso~iablc tzfz F
L.S. 248, 257,21 S.Ct. 603, 606, 35 i , E d . 847 (noring that a law regulating commerce

"under :i guise" of a iju~~rantine not be permitted a ~ ~ d "[ajtry pretense or
h. will that

masquerade Lviil be disregarded: and the true purpose of the sratutc asccrlained.").

Quaralltine laws upheld by the U.S. Supreme Court lxtve "not discriniinate[d] against

interstate commerce as such. but siriply prevented traffic in ~toxious
articles, whatever their

v. !Veus.Jet,sey (1978). 437 L1.S. 617>(129~ S.Ct. 253112538,
origin." L'i~ofl'hilc~rlelp/~iii 98

57 L.Ed.2d 475. Despite the fact that a majority of the Court's jurisprudence on the

quarailtine exception was developed at the turn of the century, tlte Court continues to

consider the applicability ofthe quarantine exception to Commerce Clause challenges today.

See get?el-i~l!y Wolinste ;tlirtrirger?~erlt, 11. Hzirzt ( lcj02), 504 li.S, 334>340-37, 1 12
Chetr~ic-ill lnc.

S.Ct.2009,2016. 119L..Ed2d 121.

'150
I In this casc, the requirement in 8 87-4-414(6), MCz4,that alternative livestock be kept

only on licensed alternative livestock rilnches is illustrative of the Legislature's recognition

that unconfined alternative livestock intermingling with native wildlife populations may be

prejudicial to both the health and property of Montanaiis. With the alarming spread of

serious mildlife diseases rhroughout the country and partieularl) in the Wcst, the State has

a compelling interest to enact regulations to ensure that alternative livestock cannot si~rtply

roam into Montana and threaten native populations, One of those regulations is 5 X7-4-

414(0), MCA.

"I
i Moreover, statutes which regulate the game fann industry like 5 87-4-414(6), ILICA,

measures. In fast, nclther FWP nor DOL have the authority
arc not economic protectton~st
to act in rhosc iascs \%%enin-state iicensees transfer alternative livestock to rccipicnts in

other states, other countries, or other triba! nations, if there 1s no realistic threat that the

transfer may impact Montana's lic estock, native deer and elk populations, or human health,

However, in a situation sucli as the one presented, where the C:ro\v Reservatioii is wholly

within the exterior boundaries ofthe State of Montana and elk released into tlre wild onto the

Resenation could migrate back into Montana, we conclude $ 87-4-414(6), MCA, falls

squarely within the quarantine exception to the Commcrce Cla~ise.Therefore. we conclude

that no violation of the Commerce Clause has been demonstrated.

152 For the foregoing reasons, we affirm the pennanent injunction issued by the District

soill?

We Concur:
Justice Jaines C. Ncison specially concurs.

453 1 concur in our Opinion. That said, it is. nonetheless. \vorth observing thar h i s case

represents what call only be described as a s e r i o ~ ~ s
breakdo\vli in a11 important part oi'the

regiilatory scheme of State government.

"j4 As touched upon in 7 33 of our Opinion, the statutes governing FWP's jurisdiction and

authority to ensure the health, safety and integrity of Montana's native wildlife population

are ultimately grounded in the State's obligation under Article IX, Section 1, of Montana's

Constitution to "mai~ltain improve," for the benefit of "present and future generations,"
and

Montanans' Article 11, Seetion 3, fur~damental
constitutional right to "a clean and healthful

envirol~ment."See Sfate v. Boyer. 2002 bfT 33, $22, 308 Mont. 276, F 22,42 P.3d 771.7

22. wherein we stated--in upholding a game warden's search for and seizure of over-limit fish

in a live well in a boat--that "our Constitution: laws and regulations mandate special

considerations to assure that our wild places and the creatures that inhahit the111are preserved

for future generations."

q;;55 It can hardly be gainsaid that if, as the Attorney General argued in Boyer, over-fishing

iniplicates the "clean and healthful environment" protections of %iontana'sConstitution. then,

for the reasons set forth in 1l7 23-28 of our Opinion, the release of game far111 elk into the

wild carries with it the potential for an environmental disaster of truly n~onumentai

proportions.

y56 Wit11 that in mind, and, recognizing the State's obligation to protect, maintain and
iilrprcne the envirortt~lel-it, deserves special contniern that; at least kom the record before
it

rrs. it appears that there was no comtnunication, much less anj-consuiiarion or cctordinatiori,

between DOL and FWP with respect to the Wallaces' proposed transfer of their game farm

elk to the Crow Tribe. bV11ile Title 87 governs "Fish and Wildlife'' and more specifkally

FCVP; $ 87-4-408, MCA, cited in 71 18 of our Opinion clearly indicates that FWP and DOL

have interrelated functions with regard to game farm animals. See ul.so $ 87-4-414 and $ 87-

4-41 5, MCh. In spite of these interrelated functions, each agency--like ships passing in the

night--simply did its own thing under the statutes and regulations that pertained to its

particular operations. That the involved personnel in these two State agencies failed to

ackllowledge a need much less any apparent legal requirement, to communicate atid

coordinate with each other with regard to this matter is mind-boggling given the serious

environmental ramifications of allowing game farni elk to mix with, and presumably breed

with, Montana's wild elk population.

757 in this regard. it tniglit be that DOL would not have permitted the transfer of Wallaces'

game farm elk if some sort of pre-permit assessment of environmental impacts had been

conducted under Title 75; Chapter 1 . Part 2, MC.4 (the "Montana Environmental Policy Act

or MEPA). Of course. on the record here, it appears that DOL was not eve11 aware of the

potenlial cnvironn~enlal
threats that had been identified by its sister agency, FWP, and which

the LVallaces' inrcnded course of conduct posed. Again, this points up the break down of

communication and coordination between the two State agencies involved in this case, and,
more irnportantl;;, the hilure of the Sbte to discharge its consti~utional
obligation to protect

the eirironment through its agencies and governillg regulatory scheme,

4!58 in short given that Article IX. Section 1. of our Constitution clearly and

unambiguously imposes upon tlre State the obligation to "maintain and improve a clean and

healthful environment in Montana for present and future generations," the Legislature, under

Article IX; Section 2. has a concomitant obligation to "provide for the administration and

enforcement of this duty" by adopting laws that ensure the right hand of State government