                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


DAVID M. EVANS, an individual;            No. 13-35003
RON PICKENS, an individual, DBA
P&D Construction, an Idaho sole              D.C. No.
proprietorship; SAGE BUILDERS, LP,        4:12-cv-00417-
an Idaho limited liability partnership,        BLW
                Plaintiffs-Appellants,

                  v.                        OPINION

SHOSHONE-BANNOCK LAND USE
POLICY COMMISSION; NATHAN
SMALL, as Chairman of the Fort Hall
Business Council; GLENN FISHER;
LEE JUAN TYLER; DEVON BOYER;
TINO BATT; BLAINE J. EDMO;
DARRELL DIXEY, as members of the
Fort Hall Business Council; TONY
GALLOWAY, SR., as Chairman of the
Shoshone-Bannock Land Use Policy
Commission; CASPER APPENAY;
JOHN FRED, as members of the
Shoshone-Bannock Land Use Policy
Commission; ARNOLD APPENEY, as
the Executive Director of the
Shoshone-Bannock Land Use
Department; GEORGE GUARDIPEE, as
an enforcement official of the
Shoshone-Bannock Land Use Policy
Commission; UNKNOWN SHOSHONE-
2           EVANS V. SHOSHONE-BANNOCK LUPC

 BANNOCK TRIBAL COURT JUDGES, as
 Tribal Judicial Officers,
                 Defendants-Appellees.


        Appeal from the United States District Court
                  for the District of Idaho
      B. Lynn Winmill, Chief District Judge, Presiding

                 Argued and Submitted
            November 5, 2013—Portland, Oregon

                    Filed December 5, 2013

    Before: Milan D. Smith, Jr. and Andrew D. Hurwitz,
    Circuit Judges, and James C. Mahan, District Judge.*

            Opinion by Judge Milan D. Smith, Jr.




 *
   The Honorable James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
            EVANS V. SHOSHONE-BANNOCK LUPC                             3

                           SUMMARY**


                            Indian Law

    Reversing in the district court’s denial of a motion for
preliminary injunction and dismissal of an action seeking to
enjoin tribal court proceedings, the panel held that the
Shoshone-Bannock Tribes lacked the power to regulate the
land use of the plaintiff, a nonmember who owned land in fee
simple within the Fort Hall Reservation.

    The panel held that the plaintiff was not required to
exhaust tribal remedies before bringing suit in federal court
because the tribal court plainly lacked jurisdiction. The panel
held that because the plaintiff was an owner of non-Indian fee
land, the Tribes’ efforts to regulate him were presumptively
invalid under Montana v. United States, 450 U.S. 544 (1981),
and an exception for the regulation of nonmember activity
that directly affects a tribe’s political integrity, economic
security, health, or welfare did not apply. The panel reversed
the judgment of the district court and remanded the case for
further proceedings.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4            EVANS V. SHOSHONE-BANNOCK LUPC

                              COUNSEL

Aaron N. Thompson (argued), May, Rammell & Thompson,
CHTD, Pocatello, Idaho, for Plaintiffs-Appellants.

Mark A. Echo Hawk (argued), Echo Hawk Law, Pocatello,
Idaho, for Defendants-Appellees.


                               OPINION

M. SMITH, Circuit Judge:

    In this appeal, we consider whether the Shoshone-
Bannock Tribes plausibly have the authority to regulate the
land use of David Evans, a nonmember of the Tribes, who
owns land in fee simple within the Fort Hall Reservation.1
Acknowledging the general rule that tribes may not regulate
nonmember conduct on such “non-Indian fee land,” the
district court nevertheless held that the Tribes had a plausible
basis for asserting jurisdiction. The district court therefore
rejected Evans’ attempt to enjoin tribal court proceedings,
ruling that Evans must first exhaust tribal remedies. Because,
contrary to the district court’s conclusion, the Tribes plainly
lack the power to regulate Evans’ conduct, we reverse the
judgment of the district court and remand for further
proceedings.2


    1
  For ease of exposition, we refer to Plaintiffs-Appellants collectively as
Evans. We refer to Defendants-Appellees collectively as the Tribes.
        2
     In a memorandum disposition filed contemporaneously with this
opinion, we affirm the district court’s denial of Evans’ motion to strike the
majority of the Tribes’ evidentiary submissions.
             EVANS V. SHOSHONE-BANNOCK LUPC                               5

     FACTUAL AND PROCEDURAL BACKGROUND

    Plaintiff-Appellant David Evans inherited land in
Pocatello, a city in Power County, Idaho. Evans’ land is
located within the Fort Hall Reservation, the home of the
Shoshone-Bannock Tribes. Although his property is within
the borders of the reservation, Evans is not a member of the
Tribes, and he owns the land in fee simple.3

   In 2012, after obtaining a building permit from Power
County, Evans began constructing a single-family residence
on his property. He hired Plaintiff-Appellant Sage Builders
to build the house, and Sage Builders in turn retained
subcontractors, including P&D Construction, to provide
materials and construction services.

    On April 13, 2012, Defendant-Appellee George
Guardipee, the Compliance Officer for the Tribes’ Land Use
Policy Commission, requested that Evans submit a building
permit application to the Tribes. Guardipee further requested
that Evans pay the Tribes’ permit fees, and asked Evans to
ensure that all of his contractors and subcontractors obtain


 3
   “Thanks to the Indian General Allotment Act of 1887, 24 Stat. 388, as
amended, 25 U.S.C. § 331 et seq., there are millions of acres of non-Indian
fee land located within the contiguous borders of Indian tribes.” Plains
Commerce Bank v. Long Family Land & Cattle, 554 U.S. 316, 328 (2008)
(citing Atkinson Trading Co. v. Shirley, 532 U.S. 645, 648, 650 n.1
(2001)). The Tribes argue that this history is not directly relevant, as the
Fort Hall Reservation was allotted into fee simple parcels in 1889, rather
than under the more widely applicable 1887 Act. But they do not dispute
that Evans owns his land in fee simple. And they cite no authority
suggesting that the specific allotment-era statute under which alienation
of tribal land to nonmembers became possible is relevant to tribal
jurisdiction.
6          EVANS V. SHOSHONE-BANNOCK LUPC

business licenses and pay fees to the Tribes. Evans declined,
and continued building his home without tribal approval.

    On May 16, 2012, Guardipee arrived on Evans’ land and
demanded that all work on the property cease. The workers
then left Evans’ property.

    The next day, representatives from the Tribes posted a
Stop Work Notice on Evans’ property. The Tribes also sent
Evans a Tribal Notice of Violation/Cease and Desist Order,
which instructed Evans to contact the Tribes immediately.
Evans complied, and called Defendant-Appellee Tony
Galloway, Sr., the Chairman of the Land Use Policy
Commission. According to Evans, Galloway warned him that
the Commission would fine him $500 per day if he ignored
the stop work order.

    In July 2012, the Commission served Evans with a
summons and complaint naming him and his builders as
defendants. The complaint, filed in Shoshone-Bannock
Tribal Court, accused Evans and the builders of violating the
Tribes’ Land Use Policy Ordinance, the Guidelines
implementing the Ordinance, and the Tribes’ Business
License Act.

    On August 10, 2012, Evans, Sage Builders, and Ron
Pickens (the owner of P&D Construction) brought suit in the
United States District Court for the District of Idaho, seeking
a declaration that the tribal court lacked jurisdiction and an
injunction barring further tribal court proceedings against
them. The Tribes moved to dismiss, arguing that Evans was
required to exhaust tribal remedies before bringing suit in
federal court. Evans opposed the motion to dismiss and
moved for a preliminary injunction.
           EVANS V. SHOSHONE-BANNOCK LUPC                         7

    On December 20, 2012, the district court granted the
Tribes’ motion to dismiss and denied Evans’ motion for a
preliminary injunction. The district court concluded that,
because Evans failed to exhaust tribal remedies, his federal
suit was premature. In so holding, the district court reasoned
that tribal authority to regulate Evans’ land use was plausible,
so the tribal court did not plainly lack jurisdiction. Evans
timely appealed.

   JURISDICTION AND STANDARD OF REVIEW

    We have jurisdiction under 28 U.S.C. § 1291.4 We
review a district court’s denial of a preliminary injunction for
abuse of discretion. Perfect 10, Inc. v. Amazon.com, Inc.,
508 F.3d 1146, 1157 (9th Cir. 2007). We review a district
court’s underlying factual findings for clear error, and we
review its legal conclusions de novo. Id. “Whether
exhaustion of tribal remedies is required is a question of law
reviewed de novo.” Boozer v. Wilder, 381 F.3d 931, 934 (9th
Cir. 2004) (citing Boxx v. Long Warrior, 265 F.3d 771, 774
(9th Cir. 2001)).

                         DISCUSSION

I. Exhaustion of Tribal Remedies

    “Non-Indians may bring a federal common law cause of
action under 28 U.S.C. § 1331 to challenge tribal court
jurisdiction.” Elliott v. White Mountain Apache Tribal Court,
566 F.3d 842, 846 (9th Cir. 2009) (quoting Boozer, 381 F.3d


   4
      The district court’s denial of Evans’ motion for a preliminary
injunction merged into the final judgment. See SEC v. Mount Vernon
Mem’l Park, 664 F.2d 1358, 1361–62 (9th Cir. 1982).
8          EVANS V. SHOSHONE-BANNOCK LUPC

at 934). Before bringing suit in federal court, however, a
non-Indian generally must first exhaust tribal remedies.
Elliott, 566 F.3d at 846; see also Nat’l Farmers Union Ins.
Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850–53 (1985)
(describing exhaustion requirement).

    There is no dispute that Evans failed to exhaust tribal
remedies. But the exhaustion requirement is not absolute.
“Exhaustion is prudential; it is required as a matter of comity,
not as a jurisdictional prerequisite.” Boozer, 381 F.3d at 935
(citations omitted). To this end, the Supreme Court has
recognized four exceptions to the exhaustion requirement:
“(1) when an assertion of tribal court jurisdiction is
‘motivated by a desire to harass or is conducted in bad faith’;
(2) when the tribal court action is ‘patently violative of
express jurisdictional prohibitions’; (3) when ‘exhaustion
would be futile because of the lack of an adequate
opportunity to challenge the tribal court’s jurisdiction’; and
(4) when it is ‘plain’ that tribal court jurisdiction is lacking,
so that the exhaustion requirement ‘would serve no purpose
other than delay.’” Elliott, 566 F.3d at 847 (quoting Nevada
v. Hicks, 533 U.S. 353, 369 (2001) (internal alteration
omitted)).

    Evans contends that he is not required to exhaust tribal
remedies because the tribal court plainly lacks jurisdiction.
To determine whether tribal court jurisdiction is plainly
lacking, we analyze whether such “jurisdiction is colorable or
plausible . . . .” Elliott, 566 F.3d at 848 (quoting Atwood v.
Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th
Cir. 2008) (internal quotation marks omitted)). The
plausibility of tribal court jurisdiction depends on the scope
of the Tribes’ regulatory authority, as “a tribe’s adjudicative
jurisdiction does not exceed its legislative jurisdiction.”
           EVANS V. SHOSHONE-BANNOCK LUPC                     9

Plains Commerce, 554 U.S. at 330 (quoting Strate v. A-1
Contractors, 520 U.S. 438, 453 (1997)).

II. Plausibility of Tribal Court Jurisdiction

    “[T]ribes do not, as a general matter, possess authority
over non-Indians who come within their borders . . . .” Plains
Commerce, 554 U.S. at 328 (citing Montana v. United States,
450 U.S. 544, 565 (1981)); see also Philip Morris USA, Inc.
v. King Mountain Tobacco Co., 569 F.3d 932, 939 (9th Cir.
2009) (“As a general rule, tribes do not have jurisdiction,
either legislative or adjudicative, over nonmembers, and tribal
courts are not courts of general jurisdiction.”). Particularly
relevant here, “[t]his general rule restricts tribal authority
over nonmember activities taking place on the reservation,
and is particularly strong when the nonmember’s activity
occurs on land owned in fee simple by non-Indians—what
[the Supreme Court has] called ‘non-Indian fee land.’”
Plains Commerce, 554 U.S. at 328 (quoting Strate, 520 U.S.
at 446).

    Because Evans is an owner of non-Indian fee land, the
Tribes’ efforts to regulate him are “presumptively invalid.”
Plains Commerce, 554 U.S. at 330 (quoting Atkinson,
532 U.S. at 659). In order to regulate Evans’ land use, the
Tribes must show that at least one of two “limited”
exceptions described in Montana v. United States applies.
Atkinson, 532 U.S. at 647. Under the first exception, tribes
may regulate “nonmembers who enter consensual
relationships with the tribe or its members . . . .” Strate,
520 U.S. at 446. Under the second exception, tribes may
regulate nonmember “activity that directly affects the tribe’s
political integrity, economic security, health, or welfare.” Id.
10           EVANS V. SHOSHONE-BANNOCK LUPC

    The Tribes do not argue that they may regulate Evans’
activities under Montana’s “consensual relationships”
exception.5 Thus, in order to regulate Evans’ land use, the
Tribes must show that Evans’ “conduct threatens or has some
direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.” Plains Commerce,
554 U.S. at 329–30 (quoting Montana, 450 U.S. at 566). The
Tribes face a formidable burden in this respect, because “with
only ‘one minor exception, [the Supreme Court has] never
upheld under Montana the extension of tribal civil authority
over nonmembers on non-Indian land.’” Plains Commerce,
554 U.S. at 333 (quoting Hicks, 533 U.S. at 360 (emphasis in
original)).     That “minor exception” is Brendale v.
Confederated Tribes & Bands of Yakima Indian Nation,
492 U.S. 408 (1989), in which the Supreme Court “permitted
a tribe to restrain particular uses of non-Indian fee land
through zoning regulations.” Plains Commerce, 554 U.S. at
333 (emphasis omitted). But neither Brendale, nor the
second Montana exception more generally, plausibly supports
tribal jurisdiction here.

      A. Tribal Authority to Zone Non-Indian Fee Land

    In Brendale, the Supreme Court held, by a six to three
margin, “that the Yakima Indian Nation lacked authority to
zone nonmembers’ land within an area of the Tribe’s
reservation open to the general public . . . .” Strate, 520 U.S.
at 447 n.6. “The Court also held, [five] to [four], that the
Tribe retained authority to zone fee land in an area of the


  5
    The Tribes suggest in passing that jurisdiction may be plausible over
Evans’ builders because they chose to “engage in commercial activities in
Indian country[.]” But the Tribes ignore the fact that the property at issue
is non-Indian fee land.
           EVANS V. SHOSHONE-BANNOCK LUPC                      11

reservation closed to the general public. No opinion garnered
a majority.” Id. Whereas four Justices concluded that the
Yakima Tribe lacked any authority to zone non-Indian fee
land, Brendale, 492 U.S. at 430–31 (opinion of White, J.),
three Justices determined that the Tribe could zone fee land
in all areas of the reservation. Id. at 458–59 (opinion of
Blackmun, J.). Declining to join either of these opinions,
Justice Stevens, joined by Justice O’Connor, “concluded that
the Tribe retained zoning authority over nonmember land
only in the closed area.” Strate, 520 U.S. at 447 n.6 (citing
Brendale, 492 U.S. at 443–44 (opinion of Stevens, J.)).
Justice Stevens’ opinion is controlling. See Marks v. United
States, 430 U.S. 188, 193 (1977).

     Under Brendale’s controlling opinion, “the Tribes’ power
to zone each parcel of land turned on the extent to which the
Tribes maintained ownership and control over the areas in
which the parcels were located.” Hicks, 533 U.S. at 390
(citing Brendale, 492 U.S. at 438–44 (opinion of Stevens,
J.)). The Supreme Court recently emphasized the narrow
scope of Brendale, explaining that the decision merely
authorized tribal zoning “on nonmember fee land isolated in
‘the heart of a closed portion of the reservation’ . . . .” Plains
Commerce, 554 U.S. at 333–34 (quoting Brendale, 492 U.S.
at 440 (opinion of Stevens, J.) (internal alteration omitted)).

    To determine whether Brendale supports tribal court
jurisdiction, we consider the character of the area in which
Evans’ property is located and the nature of Evans’ project.
Tribal zoning authority over non-Indian fee land is plausible
only if (1) there is an arguable similarity between the area
surrounding the fee land and the closed portion of the
reservation described in Brendale; and (2) the intended use of
the fee land would place the character of the surrounding area
12         EVANS V. SHOSHONE-BANNOCK LUPC

of the reservation “in jeopardy.” Atkinson, 532 U.S. at 658
(quoting Brendale, 492 U.S. at 443 (opinion of Stevens, J.)).

     The area surrounding Evans’ property bears no
resemblance to the closed portion of the reservation in
Brendale. At the time Brendale was decided, only three
percent of the closed area of the Yakima reservation was
owned in fee simple. Brendale, 492 U.S. at 438 (opinion of
Stevens, J.). The closed area was mostly forested, and the
county government maintained no roads traversing this
portion of the reservation. Id. at 438–39 (opinion of Stevens,
J.). The Yakima Tribe carefully limited and monitored the
activities of nonmember visitors in the closed area, requiring
all such nonmembers to obtain a permit before entering. Id.
at 439 (opinion of Stevens, J.). Notably, “[t]ribal police and
game officers enforce[d] the courtesy permit system by
monitoring ingress and egress at four guard stations and by
patrolling the interior of the closed area.” Id. (citing Yakima
Indian Nation v. Whiteside, 617 F. Supp. 750, 738 (E.D.
Wash. 1985)).

    The controlling opinion in Brendale acknowledged that
“logging operations, the construction of [Bureau of Indian
Affairs] roads, and the transfer of a relatively insignificant
amount of land in the closed area unquestionably ha[d]
diminished the Tribe’s power to exclude non-Indians from
that portion of its reservation . . . .” Brendale, 492 U.S. at
441 (opinion of Stevens, J.). Nevertheless, the closed area
“remain[ed] an undeveloped refuge of cultural and religious
significance, a place where tribal members may camp, hunt,
fish, and gather roots and berries in the tradition of their
culture.” Id. (internal quotation omitted). Against this
backdrop, Justice Stevens held that “the Tribe has authority
to prevent the few individuals who own portions of the closed
             EVANS V. SHOSHONE-BANNOCK LUPC                               13

area in fee from undermining its general plan to preserve the
character of this unique resource by developing their isolated
parcels without regard to an otherwise common scheme.” Id.

    The area surrounding Evans’ property on the Fort Hall
Reservation is dramatically different. To begin with, the area
contains many residential properties owned and inhabited by
nonmembers. Additionally, the City of Pocatello operates the
Pocatello Municipal Airport on non-Indian fee land a short
distance from Evans’ parcel. The area is traversed by a
public road (Government Road), and includes farmland and
a gravel pit.6 In short, the area of the Fort Hall Reservation
near Evans’ property does not in any way resemble the
“undeveloped refuge” in which the Brendale Court permitted
tribal zoning of non-Indian fee land. Brendale, 492 U.S. at
441 (opinion of Stevens, J.).

    The Tribes’ observation that the percentage of non-Indian
fee land in the Fort Hall Reservation is relatively low does
not change this analysis. To the contrary, the Supreme Court
has directly rejected the argument “that Indian tribes enjoy
broad authority over nonmembers wherever the acreage of
non-Indian fee land is minuscule in relation to the
surrounding tribal land.” Atkinson, 532 U.S. at 658. Rather,
the Court has explained that “the judgment in Brendale
turned on both the closed nature of the non-Indian fee land
and the fact that its development would place the entire area

 6
   The Tribes assert that “no right of way exists for Government Road,”
and that “unauthorized use of Government Road constitutes a trespass on
the Fort Hall Reservation.” But the Power County Highway Division, not
the Tribes, maintains this road, and it is freely accessible to the public. In
any event, the transfer of tribal land to nonmembers “must implicitly grant
the purchaser access to that property.” Brendale, 492 U.S. at 437 (opinion
of Stevens, J.).
14           EVANS V. SHOSHONE-BANNOCK LUPC

‘in jeopardy.’” Id. (quoting Brendale, 492 U.S. at 443
(opinion of Stevens, J.)).

    In Brendale, the Court approved tribal efforts to prevent
a nonmember from constructing a large complex consisting
of “recreational summer cabins, on-site sewage disposal
systems, and interior access roads . . . .” Brendale, 492 U.S.
at 440 (opinion of Stevens, J.). In view of the undeveloped
character of the surrounding area, the controlling opinion
found that the proposal would undermine the Yakima Tribe’s
“general plan to preserve the character” of the closed area.
Id. at 441 (opinion of Stevens, J.). Here, by contrast, Evans
merely seeks to construct a single-family house in an area
that has already seen comparable development. Accordingly,
Brendale does not provide a plausible basis for tribal court
jurisdiction.7

      B. Tribal Authority to Prevent Environmental Harms

    In addition to their specific reliance on Brendale, the
Tribes contend more generally that jurisdiction is plausible
because Evans’ conduct “threatens or has some direct effect
on the political integrity, the economic security, or the health
or welfare of the tribe.” Montana, 450 U.S. at 566. To this


  7
     We decline the parties’ invitation to compare the area surrounding
Evans’ land to the open area of the reservation described in Brendale. The
Supreme Court’s rejection of tribal zoning power over fee land in the open
area reflects the rule that tribes generally lack authority to regulate
nonmember activity on non-Indian fee land. See Plains Commerce,
554 U.S. at 328. By contrast, the Court’s authorization of tribal zoning of
non-Indian fee land in the closed area represents a “minor exception” to
that rule. Id. at 333 (quoting Hicks, 533 U.S. at 360). Accordingly, courts
must analogize to the closed area described in Brendale to determine
whether tribal zoning authority over fee land is plausible.
             EVANS V. SHOSHONE-BANNOCK LUPC                            15

end, the Tribes identify a variety of alleged problems flowing
from Evans’ construction project, including: (1) groundwater
contamination; (2) improper disposal of construction debris;
and (3) increased risk of fire. The district court concluded
that these concerns plausibly support tribal jurisdiction under
Montana. We disagree.

    “The burden rests on the tribe to establish one of the
exceptions to Montana’s general rule that would allow an
extension of tribal authority to regulate nonmembers on non-
Indian fee land.” Plains Commerce, 554 U.S. at 330 (citing
Atksinson, 532 U.S. at 654). For a tribe to have authority
over such nonmember conduct, “[t]he conduct must do more
than injure the tribe, it must ‘imperil the subsistence’ of the
tribal community.” Plains Commerce, 554 U.S. at 341
(quoting Montana, 450 U.S. at 566)). Thus, “Montana’s
second exception ‘does not entitle the tribe to complain or
obtain relief against every use of fee land that has some
adverse effect on the tribe.’” Burlington N. R.R. Co. v. Red
Wolf, 196 F.3d 1059, 1064–65 (9th Cir. 1999) (quoting
Brendale, 492 U.S. at 431 (opinion of White, J.)). Rather, the
challenged conduct must be so severe as to “fairly be called
catastrophic for tribal self-government.” Plains Commerce,
554 U.S. at 341 (internal quotation and citation omitted).

    The Tribes fail to show that Evans’ construction of a
single-family house poses catastrophic risks.8 The Fort Hall
Reservation has long experienced groundwater


 8
   The Tribes identify several other purported risks, including substandard
construction practices and degradation of nearby hunting grounds and
fisheries. But these concerns are speculative, and the Tribes fail to
provide specific evidence showing that tribal regulation of Evans’ modest
construction project is necessary to avert catastrophe.
16         EVANS V. SHOSHONE-BANNOCK LUPC

contamination, and the Tribes proffer no evidence showing
that Evans’ construction would meaningfully exacerbate the
problem. Further, the Tribes’ generalized concerns about
waste disposal and fire hazards are speculative, as they do not
focus on Evans’ specific project. To the extent the district
court concluded otherwise, its findings are clearly erroneous.
See Turtle Island Restoration Network v. U.S. Dep’t of
Commerce, 672 F.3d 1160, 1165 (9th Cir. 2012) (“A finding
of fact is clearly erroneous ‘if it is (1) illogical,
(2) implausible, or (3) without support in inferences that may
be drawn from the facts in the record.’” (quoting Red Lion
Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087
(9th Cir. 2011))). Accordingly, the tribal court plainly lacks
jurisdiction, and Evans need not exhaust tribal remedies.

     C. Other Sources of Tribal Authority

    Finally, the Tribes argue that they may regulate Evans’
conduct under (1) the Fort Bridger Treaty of 1868, 15 Stat.
673 (1868); (2) delegated authority from Congress; (3) the
Organic Act of the Territory of Idaho, 12 Stat. 808, 809
(1863); (4) the Idaho Constitution; and (5) the Tribes’ Land
Use Policy Ordinance. The Tribes further contend that they
may regulate Evans’ land use because Power County
purportedly lacks the authority to do so, and because “no case
categorically bars the assertion of Tribal jurisdiction in this
case.” But these arguments ignore the crucial fact that Evans’
property is non-Indian fee land.

    It is well settled that congressional approval of a treaty
does not endow a tribe with jurisdiction over nonmembers on
fee land. See Montana, 450 U.S. at 554, 561. Rather, “once
tribal land is converted into fee simple, the tribe loses plenary
jurisdiction over it.” Plains Commerce, 554 U.S. at 328
            EVANS V. SHOSHONE-BANNOCK LUPC                          17

(citing Cnty. of Yakima v. Confederated Tribes & Bands of
Yakima Indian Nation, 502 U.S. 251, 267–68 (1992)). And
none of the federal laws cited by the Tribes expressly grants
them authority over nonmembers on non-Indian fee land.

    Finally, the Organic Act of the Territory of Idaho and the
Idaho Constitution provide no basis for tribal jurisdiction here
because they limit state authority over “Indian lands,” not
non-Indian fee land. State v. Allan, 607 P.2d 426, 430 (Idaho
1980) (citing Idaho Const. Art. 21, § 19) (emphasis added);
see also Knox v. State ex rel. Otter, 223 P.3d 266, 268 (Idaho
2009) (“The act of Congress of March 3, 1863, organizing the
Territory of Idaho, provides that it shall not embrace within
its limits or jurisdiction any territory of an Indian tribe
without the latter’s assent . . . .” (quoting Harkness v. Hyde,
98 U.S. 476, 477 (1878)) (emphasis added)). Indeed, the
Supreme Court held long ago that the government of Idaho
could regulate non-Indian activity within the borders of the
Fort Hall Reservation. See Utah & N. Ry. Co. v. Fisher,
116 U.S. 28, 33 (1885).9 Accordingly, we reject the Tribes’
additional arguments for asserting jurisdiction over Evans’
land use.

III.    Preliminary Injunction

    The district court denied Evans’ motion for a preliminary
injunction because it erroneously concluded that tribal
jurisdiction was plausible. The district court did not consider,
however, whether Evans demonstrated a likelihood of
irreparable harm, or whether the balance of equities and the


 9
  The Tribes cite no case law supporting their argument that “the Power
County boundary drawn over the top of the Reservation is invalid,” and
we have found none.
18           EVANS V. SHOSHONE-BANNOCK LUPC

public interest favor injunctive relief. See Winter v. Natural
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

     Notwithstanding Evans’ overwhelming likelihood of
success on the merits, “[a] preliminary injunction is an
extraordinary remedy never awarded as of right.” Id. at 24
(citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)).
Because “[t]he grant of a preliminary injunction is a matter
committed to the discretion of the trial judge,” Sierra On-
Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th
Cir. 1984), we remand this case to the district court for
consideration of the remaining Winter factors in the first
instance.10

                          CONCLUSION

     Because the Tribes plainly lack the authority to regulate
Evans’ construction of a single-family house on non-Indian
fee land, the district court erred in concluding that exhaustion
is required. We therefore reverse the judgment of the district




  10
     The Tribes argue that Evans’ claims against certain tribal officials
were properly dismissed because Evans does not make any specific factual
allegations against them. The Tribes also assert that these Defendants are
immune from suit. But “tribal sovereign immunity does not bar a suit for
prospective relief against tribal officers allegedly acting in violation of
federal law.” Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d
1085, 1092 (9th Cir. 2007) (quoting Burlington N. R.R. Co. v. Blackfeet
Tribe, 924 F.2d 899, 901 (9th Cir. 1991), overruled on other grounds by
Big Horn Cnty. Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir.
2000)). Because Evans alleges that these Defendants exceeded their
authority under federal law, the Tribes’ arguments are without merit.
             EVANS V. SHOSHONE-BANNOCK LUPC                           19

court and remand this case for further proceedings.11
Defendants-Appellees shall bear costs on appeal. See Fed. R.
App. P. 39(a)(4).

  AFFIRMED IN PART, REVERSED IN PART, and
REMANDED.




   11
      For the reasons set forth in the memorandum disposition filed
contemporaneously with this opinion, we affirm the district court’s denial
of Evans’ motion to strike.
