                                                                                       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




                                        2
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
                                                       3
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.
                                                          4
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


                                             5
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


                                            6
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


                                             7
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


                                              8
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


                                              9
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.
                                                        10
(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-


                                             11
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




                                             12
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.”


                                             13
¶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.




                                             14
¶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



                                              15
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


                                             16
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




                                            17
