June 19 2013
DA 12-0306
IN THE SUPREME COURT OF THE STATE OF MONTANA
2013 MT 166
CITIZENS FOR BALANCED USE; SEN.
RICK RIPLEY; VALLEY COUNTY
COMMISSIONERS, DUSTIN HOFELDT;
VICKI HOFELDT; KEN HANSEN; JASON
HOLT; SIERRA STONEBERG HOLT; ROSE
STONEBERG; UNITED PROPERTY
OWNERS OF MONTANA; and MISSOURI
RIVER STEWARDS,
Plaintiffs and Appellees,
v.
JOSEPH MAURIER; MONTANA
DEPARTMENT OF FISH, WILDLIFE &
PARKS; and MONTANA FISH, WILDLIFE
& PARKS COMMISSION,
Defendants and Appellants,
and
DEFENDERS OF WILDLIFE and
NATIONAL WILDLIFE FEDERATION,
Defendant Intervenors and Appellants.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Blaine, Cause No. DV-2012-1
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Zachary C. Zipfel (argued), Rebecca Jakes Dockter (argued), Special
Assistant Attorneys General, Helena, Montana
(For Joseph Maurier, MT Dept. of FWP, and MT FWP Commission)
Timothy J. Preso (argued), Earthjustice, Bozeman, Montana
(For Defenders of Wildlife and National Wildlife Federation)
For Appellees:
Chad E. Adams (argued), J. Daniel Hoven, Steven T. Wade, Christy S.
McCann; Browning, Kaleczyc, Berry & Hoven, PC, Helena, Montana
For Amicus:
Ryan C. Rusche, Attorney at Law, Poplar, Montana
Argued: April 12, 2013
Submitted: April 16, 2013
Decided: June 19, 2013
Filed:
__________________________________________
Clerk
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Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Joseph Maurier; Montana Department of Fish, Wildlife & Parks; Montana Fish,
Wildlife & Parks Commission (hereafter referred to collectively as DFWP); Defenders of
Wildlife; and National Wildlife Federation, intervenors, appeal from the District Court’s
Order Granting Preliminary Injunction. We reverse.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 This case arises from the challenges presented to the State of Montana from bison
which seasonally migrate out of Yellowstone National Park. Since 2000 the State,
through the Department of Fish, Wildlife & Parks, along with the Montana Department
of Livestock, has been a member of the Interagency Bison Management Plan, and it
issued the Bison Management Environmental Impact Study that same year. The United
States participates in the Interagency Bison Management Plan through the National Park
Service, the Forest Service, and the Department of Agriculture’s Animal and Plant Health
Inspection Service.
¶3 Starting in 2004 the DFWP, the National Park Service, and the USDA Animal and
Plant Health Inspection Service began a quarantine program to isolate and study bison
that migrated out of Yellowstone Park and into Montana. These animals were born into
the genetically-pure Yellowstone herd (not influenced by genes from domestic cattle),
and were tested negative for the disease brucellosis.1 The goal was to create a
1
Brucellosis is a serious disease for animals and humans, causing sterility and fetal abortions in livestock and
undulant fever in humans. Brucellosis infects some of the Yellowstone Park bison, having been passed to them from
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brucellosis-free herd that could be relocated out of the Yellowstone area, as an alternative
to commercial slaughter and other bison-control measures. In 2005 DFWP established a
quarantine facility just north of Yellowstone Park, starting with 100 calves that were ear-
tagged, implanted with microchips, and repeatedly tested for brucellosis over a period of
years. Some of these animals have matured and bred with others in the study, and their
offspring have also tested negative for brucellosis.
¶4 In 2011 the DFWP considered relocation of a first group of about 60 bison for the
final stage of the quarantine program, a five-year period of continued quarantine and
testing. The DFWP considered several sites that could potentially pasture the animals and
in September, 2011, released its draft environmental assessment evaluating the options
for transferring the quarantine program bison. In December, 2011, DFWP decided to
transfer the animals to an existing 4800-acre bison pasture on the Ft. Peck Reservation in
northeastern Montana, and to eventually transfer half of those animals to the Ft. Belknap
Reservation when a suitable pasture is established there. While there were herds of
domestic bison on both reservations, the plan was to separate those animals from the
Yellowstone animals and then remove the domestic animals within three years.
¶5 The final DFWP decision required it to enter agreements (referred to as a
Memorandum of Understanding, or MOU) with the tribes of both reservations. The
DFWP entered an MOU with the Ft. Peck Tribes on March 16, 2012, and most of the
bison were transported to the Reservation on March 19, 2012. The DFWP planned that
domestic cattle. The disease can be spread back to cattle. Montana achieved designation as a brucellosis-free state
in 1985 after decades of effort and expense. This designation allows cattle producers to ship animals without testing.
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the agreement with the Ft. Belknap Tribes would include provisions requiring adequate
new fencing prior to transferring any bison to the Ft. Belknap pasture.
¶6 On March 19, the CBU applied for a temporary restraining order against shipment
of bison to Ft. Peck, but the District Court denied that application “due to procedural
defects involving lack of notice and a sworn complaint or affidavit.” The CBU filed a
new application and the District Court granted a TRO on March 22, 2012, but only after
the final shipment of bison to Ft. Peck had taken place.
¶7 The MOU with the Ft. Peck Tribes provided for the relocation and containment of
the quarantine program bison. The Tribes agreed to continue the quarantine program
disease testing and to be responsible for the care and management of the animals. The
Tribes agreed to surround the pasture with adequate fencing, “at least a seven foot, woven
wire fence.” The Tribes further agreed to act within 72 hours to return any escaped bison
and to maintain insurance to cover damages caused by escapes. If escaped animals are
not contained they can be killed by DFWP. The agreement provided that half the animals
would be transferred to Ft. Belknap as soon as practical after establishing adequate
facilities there. Shipment of the bison to Ft. Peck took place primarily on March 19,
2012, with a few more animals shipped a few days later.
¶8 The present lawsuit was filed in January, 2012, challenging the DFWP action and
seeking to enjoin the bison transport. The plaintiffs, collectively referred to here as the
CBU, asked for an injunction to prohibit movement of any Yellowstone bison until the
DFWP complied with §§ 87-1-216 and -217, MCA. While the bison transport was still in
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process on March 22, 2012, the District Court entered a temporary restraining order
enjoining any bison movement from Ft. Peck to Ft. Belknap. The District Court
subsequently held a hearing and on May 8, 2012, issued a preliminary injunction
prohibiting DFWP from entering any agreement with any Tribal entity or public or
private landowner concerning transplanting Yellowstone bison; prohibiting DFWP from
transferring any bison from the brucellosis quarantine facilities; and prohibiting DFWP
from transferring any bison from Ft. Peck to Ft. Belknap. The State of Montana and
intervenor defendants appeal the District Court’s order granting the preliminary
injunction.
STANDARD OF REVIEW
¶9 This Court generally reviews a district court’s decision to grant a preliminary
injunction for a manifest abuse of discretion, one that is “obvious, evident, or
unmistakable.” State v. BNSF Ry. Co., 2011 MT 108, ¶ 16, 360 Mont. 361, 254 P.3d
561. To the extent that a preliminary injunction is based upon an interpretation of law,
the district court’s conclusions of law are reviewed to determine whether they are correct.
Reier Broad. Co. v. Kramer, 2003 MT 165, ¶ 9, 316 Mont. 301, 72 P.3d 944.
DISCUSSION
¶10 While the Appellants state a number of issues, they all are contained within the
issue of whether the District Court properly entered the preliminary injunction.
¶11 A preliminary injunction is an extraordinary remedy and should be granted with
caution based in sound judicial discretion. Troglia v. Bartoletti, 152 Mont. 365, 370, 451
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P.2d 106, 109 (1969). The purpose of a preliminary injunction is to preserve the status
quo and to minimize the harm to the parties pending trial. City of Whitefish v. Board of
County Comm’rs., 2008 MT 436, ¶ 18, 347 Mont. 490, 199 P.3d 201; Yockey v. Kearns
Properties, 2005 MT 27, ¶ 18, 326 Mont. 28, 106 P.3d 1185. The district court
considering a preliminary injunction sits in equity and should not anticipate the ultimate
determination of the issues in the case, Sweet Grass Farms v. Board of County
Comm’rs., 2000 MT 147, ¶ 38, 300 Mont. 66, 2 P.3d 825, applying § 27-19-201, MCA.
The applicant for a preliminary injunction must show a prima facie case that he will
suffer irreparable injury before the case can be fully litigated. Sweet Grass Farms, ¶ 28.
¶12 Much of the discussion in the District Court’s Order Granting Preliminary
Injunction, and in the arguments on appeal, arises from the application of § 87-1-216,
MCA. The plaintiffs argue and the District Court concluded that § 87-1-216, MCA,
governs DFWP’s transfer of the quarantined bison to Ft. Peck and then to Ft. Belknap.
During the injunction proceedings in District Court the plaintiffs withdrew the request
that the initial group of bison be removed from Ft. Peck. A preliminary injunction is not
available to restrain an act already committed. State v. BNSF Ry., ¶ 19. The remaining
issue in this case is whether § 87-1-216, MCA, governs transfer of some of the Ft. Peck
bison to Ft. Belknap so as to support a preliminary injunction against that transfer.
¶13 Section 87-1-216, MCA, begins with a legislative finding that “significant
potential exists for the spread of contagious disease to persons or livestock in Montana
and for damages to person and property by wild buffalo or bison.” The statute designates
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Yellowstone National Park bison as a species requiring disease control, and designates
“other wild buffalo” as a “species in need of management.” Subsection (4) provides that
DFWP “may not release, transplant, or allow wild buffalo or bison on any private or
public land in Montana that has not been authorized for that use by the private or public
landowner.” Subsection (5) requires DFWP to develop and adopt a management plan
before any wild buffalo “under the department’s jurisdiction” may be released or
transplanted onto “private or public land in Montana.” The statute requires that the
management plan contain a number of provisions including identification and tracking
protocols, and containment measures. Subsection (6) requires DFWP to provide the
opportunity for public comment and to provide a public hearing in the “affected county or
counties.” Subsection (7) makes the DFWP liable for the costs of any damage to private
property that occurs as a result of its failure to meet any of the requirements of subsection
(5).
¶14 The District Court applied § 87-1-216, MCA, and concluded that DFWP had
violated the statute by transferring the bison to Ft. Peck without obtaining consent of
affected landowners, and without adopting a management plan. The bison transfer to Ft.
Peck had already taken place, and CBU did not seek any injunctive relief that would
require removal of the Ft. Peck bison. Nonetheless, the District Court relied upon events
involved in that transfer to enjoin any other transfers, including the anticipated transfer to
Ft. Belknap. The District Court noted that the evidence at the hearing showed that three
individuals owned some land within the designated 4800-acre pasture at Ft. Peck. There
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was no evidence, however, that those individuals had not consented to having bison on
their property, or that they objected to having bison on their property. It is uncontested
that the initial 800-acre bison pasture at Ft. Belknap is exclusively tribal land.
¶15 Under the express terms of § 87-1-216, MCA, it applies only when “wild buffalo
or bison” are relocated to “public or private land in Montana.” A “wild buffalo or bison”
is defined as a bison “that has not been reduced to captivity and is not owned by a
person.” Sections 81-1-101(6) and 87-2-101(1), MCA. The brucellosis quarantine bison
involved in this case have been reduced to captivity for a number of years and therefore
arguably are not “wild buffalo or bison” as defined in Montana law, rendering § 87-1-
216, MCA, inapplicable to this case. The parties did not raise or brief this issue and it
was not addressed by the District Court. Because the District Court based its ruling on an
interpretation of the statute’s “public or private land” language and because the parties
focused upon that language in their arguments, we will consider it on appeal. State v.
Andersen-Conway, 2007 MT 281, ¶ 14, 339 Mont. 439, 171 P.3d 678 (this Court
generally does not resolve a case on grounds not raised or supported by the parties);
Pinnow v. Mont. State Fund, 2007 MT 332, ¶ 15, 340 Mont. 217, 172 P.3d 1273 (same).
¶16 The District Court concluded that § 87-1-216, MCA, was not ambiguous and that
the plain meaning of the phrase “public or private land” included transfers to tribal lands.
We conclude otherwise. First, as previously noted, it is clear that the phrase “public or
private land in Montana” does not expressly mention tribal lands. By contrast, in a
number of other statutes the Legislature has specifically referred to tribes or tribal land
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when it intended to do so. Most significantly, there is a statute that expressly provides
authority to the Department of Livestock to transfer bison “to qualified tribal entities”
that participate in a disease control program. Section 81-2-120(1)(d)(ii), MCA. That
statute, specifically referencing bison transfers to tribes, contains neither the landowner
consent nor management plan requirements of § 87-1-216, MCA, and it requires no
public hearings.
¶17 Similarly, § 87-1-217, MCA, sets out State policy on “large predators,” defined to
mean “bears, mountain lions and wolves.” As part of that policy, the DFWP is required
to ensure that “county commissioners and tribal governments” have the opportunity for
consultation on policies.2 Many other examples of express statutory references to tribes
exist, including but not limited to: §§ 2-15-141 to 143, MCA (directing state agencies in
implementing policies that “have direct tribal implications”); § 2-15-3112, MCA
(livestock loss mitigation programs apply on “state, federal, and private land and on tribal
land”); § 5-5-229, MCA (establishing a “state-tribal relations committee” of the
Legislature); § 7-6-2230, MCA (disbursements for projects shared “with any other
county, city, state, federal, or Indian tribal agency”); § 7-10-102, MCA (resources
“within the exterior boundaries of an Indian reservation”); § 10-3-315, MCA (requiring
authorization from any “affected political subdivision, tribal government, corporation,
organization, or individual” prior to debris removal); § 60-4-202, MCA (providing for
sales of property to a “federal, state, tribal, or local government”); and § 90-1-404, MCA
2
The District Court in the Order Granting Preliminary Injunction determined, for reasons that are not at all clear,
that bison are “large predators” under § 87-1-217, MCA. This is clearly an error of law because the statute limits
large predators to bears, mountain lions and wolves. The parties agree that this was error.
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(providing for cooperation of “state, local, private and tribal entities to develop and
maintain land information”).
¶18 Principles of land ownership support the conclusion that tribes and tribal lands
should not be impliedly included in statutory schemes without the clearest of reasons to
do so. Public lands of the State of Montana are described in Article X, § 11 of the
Montana Constitution, to include lands granted by Congress, or lands acquired by gift,
grant or devise, or by exchange, that are owned and managed by the State. See also § 77-
1-101(8), MCA, defining “state land.” Private property is property owned by an
individual and therefore private. Section 70-1-102, MCA.
¶19 Reservations and tribal lands are neither public property nor private property, but
are in a special class. Article I of the Montana Constitution affirms the special status of
tribal lands, declaring that “all land owned or held by any Indian or Indian tribes shall
remain under the absolute jurisdiction and control of the congress of the United States.”
The United States and the tribes retain jurisdiction over “Indian Country.” Big Spring v.
Conway, 2011 MT 109, ¶ 30, 360 Mont. 370, 255 P.3d 121. Nothing in these provisions
on land ownership suggests that the phrase “private or public land in Montana” should be
construed to include tribal lands on the reservation.
¶20 The Legislature has specifically provided for the transfer of bison to tribes in § 81-
2-120, MCA, and has required DFWP to consult with tribes about large predators, § 87-
1-217, MCA. We therefore conclude that the Legislature did not intend that the phrase
“private or public land in Montana” include tribal lands and did not intend that § 87-1-
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216 apply to the transfer of the quarantined Yellowstone bison to tribal lands of the Ft.
Peck and Ft. Belknap Tribes.
¶21 Since § 87-1-216, MCA, does not apply to the bison transfer to Ft. Peck and Ft.
Belknap, the District Court erred as a matter of law in issuing the preliminary injunction
based upon the conclusion that DFWP had violated that statute.
¶22 After determining that § 87-1-216, MCA, applied to this case, the District Court
applied § 27-19-201(1), MCA, and determined that the CBU had established a “prima
facie case” entitling it to a preliminary injunction, to prevent the DFWP from violating
§ 87-1-216(4)-(6), MCA. The District Court considered whether CBU had established a
likelihood of success on the merits; the likelihood of irreparable injury; whether the
balance of the equities favored CBU; and whether the injunction would be adverse to the
public interest. Shammel v. Canyon Resources, 2003 MT 372, ¶ 17, 319 Mont. 132, 82
P.3d 912 (the district court should consider those four factors where monetary damages
will not afford an adequate remedy).
¶23 The District Court determined that even though the CBU failed to demonstrate the
likelihood of irreparable injury in the absence of an injunction, a balancing of the equities
in the case favored the CBU and therefore tipped the scales in favor of issuing an
injunction. That decision was predicated upon the involvement of “disease prone” bison;
the absence of a management plan required by § 87-1-216, MCA; the absence of
landowner consent to the bison transfer; the DFWP’s delegation of its statutory
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responsibilities under § 87-1-216, MCA, to the Ft. Peck Tribes; and the evidence of
inadequate pasture fencing at Ft. Belknap.
¶24 The CBU presented landowner testimony about the condition of some of the
current fence at Ft. Belknap and about past problems of property damage caused by
escaped bison from the Tribes’ existing domestic herd. Property owners adjacent to the
proposed Ft. Belknap bison pasture have a right, as the District Court found, to protect
their property. It is at least arguable, however, that the adjacent property owners would
be in a better position to do so if the DFWP bison quarantine program were completed
rather than halted.
¶25 The Ft. Belknap commercial bison herd presently numbers over 400 animals.
Under the plan proposed by the DFWP, the commercial herd would be separated from the
quarantine bison and would be eliminated in favor of the Yellowstone animals. The
projected MOU with the Ft. Belknap Tribes would be similar to the one entered with the
Ft. Peck Tribes, and would require a bison enclosure fence upgraded to meet the
specifications of the DFWP prior to any bison transfer. The Tribes would have specific
responsibilities under the MOU to contain escaped animals, and would have to provide
insurance coverage that could be claimed by adversely-affected landowners. Moreover,
while the District Court referred to the quarantine bison as “disease prone,” the evidence
was that the animals have been tested for years and are brucellosis free, and that they will
be subject to continued brucellosis testing. In fact the District Court acknowledged that
there is “no evidence of a reason to believe these bison have a latent infection.”
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¶26 The District Court also failed to weigh the equities of the interest of the State of
Montana in finding a way to constructively meet the challenges presented by
Yellowstone Park bison which migrate into the State. The quarantine and relocation
program adopted by DFWP presents a reasoned and viable alternative or addition to the
hazing, confinement, commercial slaughter, and other steps that have been taken.
Significantly, the clear policy of the State of Montana, enacted by the Legislature in § 81-
2-120, MCA, is to permit the transfer of disease-free Yellowstone bison to Indian Tribes
who will agree to have them. While the bison transfer in this case was by the DFWP and
not the Department of Livestock, the animals are tested disease free and the transfer was
consistent with established State policy.
¶27 Also, while the Ft. Belknap and Ft. Peck Tribes are not parties to this action, the
District Court did acknowledge their interest in participating in the bison transfers. This
interest is long-held and deeply rooted in the history, beliefs and traditions of the Tribes.
Recovery of and reconnection to the wild genetic strain of Yellowstone bison represent
important goals for the Tribes.
¶28 In summary, we cannot conclude, as the District Court did, that the balance of
equities in this case favors the CBU. It was an abuse of discretion for the District Court
to reach a determination on the balance of equities without fully considering the equities
of all interests involved. Therefore, the District Court relied upon erroneous grounds for
issuing a preliminary injunction under § 27-19-201(2), MCA.
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¶29 Finally, the District Court determined that the CBU was entitled to an injunction
under § 27-19-201(3), MCA, based primarily upon the absence of a “choice of law”
provision in the MOU entered with the Ft. Peck Tribes. The District Court was
concerned that the DFWP had discrete duties under § 87-1-216, MCA, that were being
delegated to the Tribes. If the Tribes fell short of those duties, then neither the CBU nor
the DFWP would have a forum to seek redress. This could tend “to render the judgment
[of the District Court] ineffectual” as provided in § 27-19-201(3), MCA.
¶30 This discussion is relevant only to the extent that the DFWP has statutory duties
under § 87-1-216, MCA, that govern transfer of the Yellowstone quarantine bison to
tribal lands. As we have determined, that statute does not apply. To the extent that any
statute applies, it is § 81-2-120, MCA, which lacks the requirements of § 87-1-216,
MCA, and allows transfer of bison to tribes as long as disease control measures are in
place.
¶31 The District Court relied upon erroneous grounds for issuing a preliminary
injunction under § 27-19-201(3), MCA, and is reversed. Having determined that the
preliminary injunction was wrongfully issued, we decline to address the other issues
raised by the parties.
¶32 The District Court is reversed, the preliminary injunction is vacated, and this case
is remanded for further proceedings consistent with this Opinion.
/S/ MIKE McGRATH
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We concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS
Justice Jim Rice, concurring.
¶33 I concur in the decision of the Court. With regard to the proper construction of
§ 87-1-216, MCA, any ambiguity in the statutory language was resolved during floor
debate, wherein the House sponsor of SB 212 explained in response to a question that he
had conferred with the Senate sponsor concerning the measure’s potential impact upon
transfers of bison by the Department of Fish, Wildlife and Parks to the tribes, and
indicated unequivocally that the measure “would have no effect on the tribe’s ability to
receive buffalo from the department.” See Montanans for Justice v. State, 2006 MT 277,
¶ 60, 334 Mont. 237, 146 P.3d 759 (“When the legislative intent cannot be readily
derived from the plain language, we review the legislative history. . . .”).
¶34 The Appellants’ briefing and their comments during oral argument display a
remarkable befuddlement regarding the issue of jurisdiction over the MOU. As the
District Court noted, “FWP is uncertain which forum it can use to enforce the MOU.”
For a department of state government to deploy state resources pursuant to a contract it
has entered, while having no idea to what judicial forum it can turn to ensure that the
contractual obligations made to the state will be enforced, and the state’s interest
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protected, is no less than maladministration. The obligations to the state under the MOU
are substantial. As the Court notes, the Department is now working on a second MOU to
be entered with the Fort Belknap Tribes. Opinion, ¶ 25. This time, perhaps some
thought can be given to where the state is entitled to seek judicial enforcement of the
MOU in order to protect its investment of state resources in this project.
/S/ JIM RICE
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