IN THE SUPREME COURT OF THE STATE OF MONTANA No. DA

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1 January IN THE SUPREME COURT OF THE STATE OF MONTANA No. DA 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, vs. 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, Defendants-Intervenors and Appellants. REPLY BRIEF OF APPELLANTS DEFENDERS OF WILDLIFE AND NATIONAL WILDLIFE FEDERATION On Appeal from the Montana Seventeenth Judicial District Court, Blaine County, Cause Number DV , Hon. John C. McKeon TIMOTHY J. PRESO Earthjustice 313 East Main Street Bozeman, MT (406) Fax: (406) tpreso@earthjustice.org Counsel for Defendants-Intervenors Appellants Defenders of Wildlife and National Wildlife Federation

2 REBECCA JAKES DOCKTER Chief Legal Counsel Department of Fish, Wildlife and Parks P.O. Box Helena, MT (406) Fax: (406) Counsel for State Defendants CORY J. SWANSON 1 South Montana Avenue P.O. Box 866 Helena, MT (406) Fax: (406) swanriver@usa.net RACHEL A. KINKIE Doney Crowley Payne Bloomquist P.C. Diamond Block, Suite West Sixth Avenue P.O. Box 1185 Helena, MT (406) Fax: (406) rkinkie@doneylaw.com Counsel for Plaintiffs

3 TABLE OF CONTENTS I. CBU CANNOT JUSTIFY THE DISTRICT COURT S MISAPPLICATION OF SB A. Plain Statutory Language... 1 B. Harmonization with Other Statutes... 5 C. Legislative History... 8 II. III. CBU S ATTEMPT TO EXTEND SB 212 TO FORT BELKNAP TRIBAL LANDS IS MERITLESS CBU FAILS TO SUPPORT THE DISTRICT COURT S ANALYSIS OF THE EQUITIES IV. CBU S RULE 19 ARGUMENTS ARE FLAWED CONCLUSION i

4 TABLE OF AUTHORITIES STATE CASES Blaze Constr., Inc. v. Glacier Elec. Coop., Inc., 280 Mont. 7, 928 P.2d 224 (1996) Emery v. Emery, 122 Mont. 201, 200 P.2d 251 (1948), overruled on other grounds by Libra v. Libra, 157 Mont. 252, 484 P.2d 748 (1971), and Cook v. Cook, 159 Mont. 98, 495 P.2d 591 (1972) Flat Center Farms, Inc. v. State Dep t of Revenue, 2002 MT 140, 310 Mont. 206, 49 P.3d , 2, 3, 4 In re Mental Health of E.T., 2008 MT 299, 345 Mont. 497, 191 P.3d Koke v. Little Shell Tribe, 2003 MT 121, 315 Mont. 510, 68 P.3d , 14 Yockey v. Kearns Properties, LLC, 2005 MT 27, 326 Mont. 28, 106 P.3d Zempel v. Uninsured Employers Fund, 282 Mont. 424, 938 P.2d 658 (1997) FEDERAL CASES Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015 (9th Cir. 2002) Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988)... 5 Clark v. U.S. Dep t of Agric., 537 F.3d 934 (8th Cir. 2008) Conner v. Burford, 848 F.2d 1441 (9th Cir. 1988) ii

5 Davis ex rel. Davis v. United States, 343 F.3d 1282 (10th Cir. 2003) Montana v. United States, 450 U.S. 544 (1981)... 1, 13 Republic of the Philippines v. Pimentel, 553 U.S. 851 (2008)... 18, 19 Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994 (8th Cir. 2010) STATE STATUTES AND REGULATIONS Mont. Code Ann (1) (3) (1) (6) (1) (1)(d)(ii)... 5, 6, 8, (3) (2)(a) (4)-(6)... 1, 2, 3, 11 FEDERAL STATUTES AND REGULATIONS 27 Stat Stat Stat , U.S.C , 339, 341, 342, 348, 349, 354, et seq , iii

6 OTHER AUTHORITIES Felix S. Cohen, Handbook of Federal Indian Law (Rennard Strickland et al. eds. 1982) SB 212, 62d Leg., at p. 2, ll (Mont. Mar. 26, 2011)... 9 iv

7 Plaintiffs-appellees Citizens for Balanced Use, et al. ( CBU ), offer no legitimate justification for the decision below. I. CBU CANNOT JUSTIFY THE DISTRICT COURT S MISAPPLICATION OF SB 212 CBU cannot justify the district court s erroneous application of SB 212 to halt FWP s transfer of wild bison to a range operated by federally recognized Indian tribes within an established Indian reservation. CBU devotes much of its brief to arguments concerning state jurisdiction on Indian reservations. See Brief of Appellees CBU, et al. ( CBU Br. ) at (discussing Montana v. United States, 450 U.S. 544 (1981)). However, Defenders raises no issue of state jurisdiction. See Brief of Appellants Defenders of Wildlife and National Wildlife Federation ( Defenders Br. ) at 18. Rather, Defenders contends that, purely as a matter of statutory construction, the district court erroneously applied SB 212. See id. Specifically, the district court wrongly construed SB 212 s references to private or public land in Montana, Mont. Code Ann (4)-(6), to apply where a federally recognized Indian tribe receives bison within its own reservation, see Defenders Br. at CBU s attempt to support the district court s ruling fails under each of the relevant tools of statutory construction. A. Plain Statutory Language CBU mistakenly seeks support for its position in Flat Center Farms, Inc. v. State Department of Revenue, 2002 MT 140, 310 Mont. 206, 49 P.3d 578. See 1

8 CBU Br. at However, Flat Center Farms undermines the district court s statutory construction. Flat Center Farms held that the plain language of a Montana-focused statute did not reach a tribal entity operating entirely within a tribal reservation. See Flat Ctr. Farms, 15, 16. Nevertheless, CBU claims Flat Center Farms supports the decision below because FWP is a non-tribal member, and the wild bison planning and management effort is not a solely Tribal enterprise. CBU Br. at 14. This argument fails. 1 First, while FWP is not a tribal member, the relevant question is whether FWP s transfer of bison to a tribe operating within its reservation constitutes a transfer to private or public land in Montana, which is necessary to trigger application of SB 212. Mont. Code Ann (4)-(6). Flat Center Farms held that the coalescence of situs (reservation) and status (Indian) excluded a tribally chartered corporation operating exclusively on fee simple and trust lands within the Fort Peck Reservation from the plain terms of a Montana statute taxing corporations for the privilege of carrying on business in this state. Flat Ctr. Farms, 15-16, 21 (citation omitted; quoting Mont. Code Ann (3)). 1 CBU cites Flat Center Farms for its jurisdictional argument, see CBU Br. at 13-14, but that case turned on a question of statutory construction, not jurisdiction, see Flat Ctr. Farms, 16, 19 (declining to consider jurisdiction where an antecedent question of statutory authority resolved the case); see also Koke v. Little Shell Tribe, 2003 MT 121, 29, 315 Mont. 510, 68 P.3d 814 (Trieweiler, J., dissenting) (author of Flat Center Farms stating that ruling held tribes were not subject to the corporate license tax by the very terms of the statute which the state sought to enforce ). 2

9 This holding is consistent with the authorities discussed at Point I.B., infra, indicating that Montana statutes do not reach tribal entities and lands absent their express inclusion, given the issues of comity that arise between state and tribal sovereigns. By the same reasoning, the receipt of bison by entities whose Indian status is even more fundamental than the corporation at issue in Flat Center Farms (i.e., the Fort Peck tribes themselves), also operating exclusively on fee simple and trust lands within the Fort Peck Reservation, does not fall within the plain terms of SB 212 addressing transfers of bison to private or public land in Montana. Mont. Code Ann (4)-(6). Second, CBU s contention that FWP had and still retains jurisdiction over the wild bison for another five years, CBU Br. at 14, is wrong. As FWP repeatedly stated, [s]tudy bison on the reservation are under the jurisdiction of each Tribe. FWP, Decision Notice: Interim Translocation of Bison (Dec. 2011), at 15 ( Decision Notice ) (emphasis added) (Pl. Ex. 2, see Tr. at 35) (Supp. App. Tab B); see also id. at 12 ( [I]f [bison] are translocated to a tribal reservation, they will be under the jurisdiction of the sovereign tribal government(s). ); id. at 19 ( Because the bison will be under jurisdiction of the Fort Peck Tribe, whether or not to allow public access to study bison will be at their discretions. ). Only [s]tudy bison that move off the reservation would be considered wildlife, under the jurisdiction of FWP. Id. at 15 (emphasis added). 3

10 The MOU provisions cited by CBU reflect this framework. See CBU Br. at 9, 14. Although FWP retained various advisory and cooperative roles (concerning a bison identification system, feed, fencing, and exchange of breeding stock), FWP s actual jurisdiction over the bison is limited to remov[ing] bison outside the Reservation. Memorandum of Understanding Between FWP and the Assiniboine & Sioux Tribes of the Fort Peck Reservation (Mar. 2012), at 4 ( MOU ) (D.C. Doc. 27, Ex. 2) (Supp. App. Tab C) (emphasis added). The MOU provides that the Fort Peck tribes will be solely responsible for the care and management of [Quarantine Feasibility Study] bison and any subsequent offspring, and FWP may not even access and inspect the animals without first providing 24 hours notice to the tribes. Id. at 2, 4 (emphasis added); see also CBU Br. at 39 (acknowledging the MOU places sole responsibility for wild bison on the Tribe ). While the MOU enables FWP to retrieve the translocated bison under specified conditions, tribal jurisdiction over the bison persists unless the specified circumstances occur. See MOU at 3. Accordingly, the MOU affirms, rather than discredits, the status of the Fort Peck tribes bison restoration program as a fundamentally tribal enterprise triggering application of Flat Center Farms and rendering SB 212 inapplicable. 2 2 CBU contends that FWP repeatedly interpreted SB 212 to apply to the translocation. CBU Br. at 5-6, 24. However, while FWP asserted that its EA fulfills SB 212 s management plan requirement, Decision Notice at 8, it 4

11 B. Harmonization with Other Statutes CBU errs in attempting to reconcile SB 212 s silence regarding Indian tribes and reservations with numerous Montana statutes that explicitly address tribal entities and lands. Most significantly, Mont. Code Ann (1)(d)(ii) explicitly vests the Montana Department of Livestock ( DOL ) with largely unfettered discretion to transfer bison to Indian tribes. See CBU Br. at This broad DOL authority would allow the state to easily bypass SB 212 s detailed planning and approval requirements if SB 212 were deemed to reach transfers of bison to Indian tribes, further demonstrating that SB 212 should not be construed to extend so far. See Defenders Br. at Nevertheless, CBU claims that the Legislature had no need to impose SB 212-equivalent planning and liability requirements upon DOL because Montana statutes already impose liability upon any livestock owner if the animals escape. CBU Br. at 23. However, CBU predicates this argument on a fallacy the assertion that bison become classified as livestock when transferred to tribes by DOL and are therefore subject to state livestock laws. Id. at 22. This assertion, offered without citation, is wrong because bison remain wildlife following a ultimately stated that it can t enforce SB 212 on the reservation, id. at 9. In any case, any difference between FWP s positions in its administrative proceedings and this litigation would at most leave this Court with no agency interpretation warranting deference. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, (1988) (declining to defer to agency litigation position). As explained above, SB 212 is inapplicable whatever FWP s administrative interpretation. 5

12 transfer under section Section applies only where a publicly owned wild buffalo or wild bison enters Montana. Mont. Code Ann (1) (emphasis added). Such a live wild buffalo or wild bison may be captured, tested, quarantined, and vaccinated ; if the [w]ild buffalo or wild bison is then certified by the state veterinarian as brucellosis-free, it may be transferred by DOL to qualified tribal entities. Id (1)(d)(ii) (emphases added). The wild status of any such bison is not altered by DOL s stewardship, as the statute explicitly references [a]cquisition of wild buffalo or wild bison by a qualified tribal entity following transfer from DOL. Id. (emphasis added). To emphasize the point further, the terms wild buffalo and wild bison, as used in section , mean a bison that has not been reduced to captivity and is not owned by a person. Id (6). Accordingly, CBU s contention that wild bison are transformed from wildlife into livestock when DOL transfers them to an Indian tribe defies statutory language, and CBU s attempt to reconcile SB 212 with section fails. 3 3 While CBU claims that Montana s running at large statute, Mont. Code Ann , would protect neighboring landowners if DOL-transferred bison escaped from tribal custody, see CBU Br. at 22-23, this statute applies only to bison, a term that means domestic bison or feral bison and not wild buffalo or wild bison. Mont. Code Ann (1). Accordingly, section s repeated references to wild buffalo or wild bison exclude such animals from the running at large prohibition. 6

13 CBU offers no persuasive argument concerning the numerous other Montana statutes explicitly referencing Indian tribes and lands when their inclusion was intended. See Defenders Br. at (citing statutes and cases). CBU repeats the district court s demand for independent legal authority requiring statutory mention of reservation lands to effectuate their inclusion, see CBU Br. at 21-22, but this argument defies precedent from this Court and the U.S. Supreme Court recognizing a significant policy choice in the legislative decision to include specific terms in some statutes but not others. See Defenders Br. at (citing cases). In short, the Legislature has used explicit language when it wishes to address the state s relations with tribal entities; its omission of such language from SB 212 indicates a contrary intent. The Legislature s silence in SB 212 is all the more significant because of the key matters such as tribal jurisdiction over wildlife within reservations and state cooperation with tribes on matters of concurrent jurisdiction that would need to be addressed if bison transfers to tribes were meant to be regulated. Indeed, although CBU attempts to distinguish Mont. Code Ann (1) based on its explicit reference to tribal land that is eligible through agreement, see CBU Br. at 22, such language only proves the point. Given the established state policy and practice of entering into cooperative agreements with tribes in matters of shared jurisdiction, see Appellants Director Joseph Maurier; 7

14 FWP; and Montana Fish, Wildlife & Parks Comm n Opening Brief at 35-37, SB 212 s lack of any equivalent language demonstrates that bison transfers to tribal entities within an established reservation were not included. By contrast, section , which explicitly contemplates bison transfers to tribes, explicitly authorizes DOL to enter into cooperative agreements with tribal organizations. Mont. Code Ann (1)(d)(ii). C. Legislative History CBU offers no legitimate response to the legislative history affirming, in the words of its House sponsor, that SB 212 would have no effect on the tribe s ability to receive buffalo from the department. H. Floor Sess. on SB 212, 2011 Legis. Sess. (Mar. 30, 2011), at minute 9:52 ( House Sponsor Statement ) (emphasis added) (D.C. Doc. 22, Ex. 4) (Supp. App. Tab D). CBU first seeks to prevent this Court from considering the House sponsor s statement, arguing that SB 212 is clear and unambiguous. CBU Br. at 24. As discussed, however, SB 212 s silence regarding tribal entities and reservations, in contrast with section (1)(d)(ii) and other Montana statutes explicitly mentioning such subjects, clearly indicates that bison transfers to tribes were not addressed. At a minimum, this statutory silence warrants review of the legislative history. See In re Mental Health of E.T., 2008 MT 299, 14, 345 Mont. 497, 191 P.3d 470 (consulting legislative history upon finding statutory language ambiguous); see also, e.g., 8

15 Clark v. U.S. Dep t of Agric., 537 F.3d 934, 942 (8th Cir. 2008) (finding statute silent and therefore ambiguous ). CBU next speculates that the department referenced in the House sponsor s statement is not FWP but DOL, and thus the statement merely references DOL s independent bison transfer authority under section (1)(d)(ii). See CBU Br. at However, the exchange that gave rise to the sponsor s cited remarks concerned FWP s authority pursuant to an earlier draft of SB 212 that required FWP to consider existing uses under federal land management plans before transplanting bison. See SB 212, 62d Leg., at page 2, lines (Mont. Mar. 26, 2011) (fourth version of printed bill) (available at Rep. Frank Smith asked the House sponsor, Rep. Knudsen, whether that draft provision extended to tribal lands; Rep. Knudsen responded that SB 212 would have no effect on the tribe s ability to receive buffalo from the department. See H. Floor Sess. on SB 212, 2011 Legis. Sess. (Mar. 30, 2011), at minute 9:30 (D.C. Doc. 22, Ex. 4) (Supp. 9

16 App. Tab D). There is no indication that the referenced department was anything other than FWP, whose authority was being discussed. 4 CBU also fails in its attempt to confine the cited legislative history to the question whether SB 212 nullified existing Tribal-IBMP agreements then available under the law. CBU Br. at 25 (emphasis in original). CBU rests this argument on unrelated discussions in the Senate not the House, where Rep. Knudsen s statement was made more than a month prior to the hearing where Rep. Knudsen spoke. See CBU Br. at 4-5. During this Senate hearing, two legislators asked plaintiff-appellee Sen. Rick Ripley whether SB 212 negated existing agreements between the IBMP agencies and Indian tribes; Sen. Ripley replied that it did not. See id. This Senate exchange focused narrowly on existing agreements between IBMP agencies and tribes, and did not address the broader question whether SB 212 has any effect on a tribe s ability to receive buffalo from FWP, which was the subject addressed in the House by Rep. Knudsen. See 4 CBU points out that Rep. Knudsen s comment addressed transfers of bison under the Interagency Bison Management Plan ( IBMP ), see CBU Br. at 24-25, but this offers no help to CBU because the challenged bison transfer also arose under the IBMP, see FWP, Final Envtl. Assessment for Interim Translocation of Bison (Nov. 2011), at 10 ( EA ) (stating that construction and execution of this research has been in accordance with IBMP) (Pl. Ex. 2, see Tr. at 35) (Supp. App. Tab A). 10

17 House Sponsor Statement. CBU s effort to graft plaintiff-appellee Sen. Ripley s words on to Rep. Knudsen s statement is meritless. 5 II. CBU S ATTEMPT TO EXTEND SB 212 TO FORT BELKNAP TRIBAL LANDS IS MERITLESS Even if SB 212 could be applied to FWP s transfer of wild bison to a recognized tribal entity operating within its reservation which it cannot the district court still erred in applying the statute to the exclusively tribal lands contained within the Fort Belknap Reservation s bison range. See Defenders Br. at CBU concedes that the Fort Belknap tribes initial 800 acre pasture designated for YNP wild bison consists entirely of tribal land. CBU Br. at 8, 15. CBU nevertheless attempts to bootstrap an application of SB 212 by claiming that the bison would soon be moved into a 22,000 acre pasture that includes private and state land. Id. CBU s contention defies the plain language of SB 212, which applies only where FWP transfers bison to private or public land in Montana. Mont. Code Ann (4)-(6). Under the challenged decision, FWP would transfer bison to exclusively tribal lands within an 800-acre pasture, rendering SB CBU claims that the only ways in Montana law for Tribes to receive bison prior to SB 212 were through hunting, slaughter, or transfer by DOL, see CBU Br. at 25, but FWP undertook the challenged bison transfer pursuant to its general wildlife and bison management authorities under Mont. Code Ann (3) and (2)(a), see EA at 12; Decision Notice at 11. If, as CBU argues, FWP had no authority to transplant wild bison under pre-existing law, then there would have been no need for the 2011 Legislature to enact SB 212 to limit that authority. 11

18 inapplicable. See EA at 35; Order Granting Preliminary Injunction (May 9, 2012) ( PI Order ) at 17. The bison would remain on those tribal lands for approximately three years, until the tribes commercial bison herd could be liquidated, at which point the Fort Belknap tribes not FWP would move the bison to the 22,000-acre range referenced by CBU. See EA at 36. SB 212 makes no attempt to reach the Fort Belknap tribes movement of bison within their own reservation, nor could it likely do so given the limits of state jurisdiction over tribal sovereigns. See Zempel v. Uninsured Employers Fund, 282 Mont. 424, 431, 432, 938 P.2d 658, 663 (1997) (recognizing that Indian businesses operating exclusively on Indian reservations are not subject to Workers Compensation Act although nothing in the act specifically exempts or excludes them). Accordingly, the Fort Belknap tribes planned movement of bison within the Fort Belknap Reservation offers no basis to sustain the district court s injunction. CBU s last-ditch effort to support the district court s ruling on SB 212 is to claim that the tribal lands on the Fort Belknap Reservation s bison range constitute public land under SB 212 due to federal statutes that provided for allotment and private ownership of Indian lands. See CBU Br. at CBU appears to argue that the General Allotment Act of 1887, 25 U.S.C , 339, 341, 342, 348, 349, 354, 381; the Klamath River Reservation Allotment Act of 1892, 27 Stat. 52; the Fort Belknap Allotment Act of 1921, 41 Stat. 1355; and a 1958 amendment to 12

19 the Fort Belknap Allotment Act, 72 Stat. 531, somehow continue to impact the status of tribal lands on the Fort Belknap Reservation. See, e.g., CBU Br. at ( Large areas of FBR are now public land because they are subject to disposition under the general laws. ). This is wrong. The reservation-specific Klamath River Allotment Act, by its own terms, has no bearing on the Fort Belknap Reservation. As for the allotment provisions of the 1887 General Allotment Act and the 1921 Fort Belknap Allotment Act, [t]he policy of allotment and sale of surplus reservation land was repudiated in 1934 by the Indian Reorganization Act [( IRA ), 48 Stat. 984 (codified as amended at 25 U.S.C. 461 et seq.)]. Montana, 450 U.S. at 559 n.9; see generally Felix S. Cohen, Handbook of Federal Indian Law 147 (Rennard Strickland et al. eds. 1982) (IRA was intended to stop the alienation of tribal land needed to support Indians ). Contrary to CBU s argument that [l]arge areas of FBR are subject to disposition under the general laws, CBU Br. at 18, the IRA end[ed] the alienation of tribal land and facilitat[ed] tribes acquisition of additional acreage and [the] repurchase of former tribal domains, Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1011 (8th Cir. 2010) (quotations, citation and emphasis omitted; emphasis added); see also 25 U.S.C. 463, 465 (authorizing Interior secretary to restore to tribal ownership the remaining surplus lands of any Indian reservation heretofore opened to allotment, and to re-acquire alienated 13

20 lands within reservations for the purpose of providing land for Indians ). In sum, CBU s effort to transform the tribal lands of the Fort Belknap bison range into freely alienable lands, CBU Br. at 18, through the application of outdated and superseded allotment statutes is meritless. 6 III. CBU FAILS TO SUPPORT THE DISTRICT COURT S ANALYSIS OF THE EQUITIES CBU fares no better in attempting to justify the district court s mistaken balancing of the equities in favor of a preliminary injunction. See Defenders Br. at CBU disagrees that neighboring landowners will be better off with wild bison at FBR instead of domestic bison, claiming that landowners are shielded from domestic bison by Montana livestock liability laws that would not apply to wild bison. CBU Br. at However, the Fort Belknap tribes sovereign immunity prevents neighboring landowners from seeking legal recourse for domestic bison trespasses, see Koke, 18 a fact CBU now ignores, even though the plaintiffs alleged inability to obtain satisfaction from the tribes was a focus of CBU s complaint, see Amend. Compl. 26, (D.C. Doc. 6). By contrast, under the MOU framework established by FWP, landowners have recourse to FWP for any wild bison trespasses, and they would have additional protection 6 As for the 1958 amendment cited by CBU the only cited provision that postdates the IRA it addressed only trust allotted lands on the Fort Belknap Indian Reservation [formerly] designated as homesteads by Indian allottees[.] 72 Stat It did not affect the unallotted, tribally held lands in the Fort Belknap bison range. 14

21 arising from FWP s evaluation and approval of the adequacy of new fencing for the tribal bison range. See MOU at 3, Addendum. While CBU complains that FWP refuses to guarantee liability protection for neighboring landowners, CBU Br. at 39, the MOU framework requires the tribes to maintain liability insurance to cover any claims during the bison quarantine project and threatens potential forfeiture of bison if the animals repeatedly escape from tribal facilities and cause uncompensated damage. MOU at 3. CBU also suggests that the translocated bison are not indisputably brucellosis-free, CBU Br. at 39, but the district court itself found no evidence of a reason to believe these bison have a latent infection, PI Order at 30; see also Decision Notice at 10 ( Most of the adults have been tested >9 times many more times than any domestic livestock and tested negative each time. ). As for CBU s claim that the record reflects a significant threat of off- Reservation effects from wild bison escapes, CBU Br. at 15, CBU references the district court s lengthy quotation from a FWP memorandum summarizing advice obtained from a Montana bison rancher, see PI Order at (quoting EA App. B at B-11 to B-15). However, FWP heeded the rancher s advice. While the rancher warned that a 5-wire high tensile electric fence would be insufficient, EA App. B at B-12, FWP contemplates a 7-8 foot high woven game fence to secure the Fort Belknap tribes bison pasture, EA at 36, which is consistent with the rancher s 15

22 recommendation, EA App. B at B-12. Indeed, the fact that FWP solicited advice from an experienced bison manager evinces an agency acting responsibly to anticipate and head off problems not an agency recklessly disregarding a significant threat of bison escapes. CBU Br. at 15. Although CBU targets FWP s alleged inaccuracies in describing the existing fence around the Fort Belknap bison pasture, see id. at 39, such alleged deficiencies are immaterial given that a new bison containment fence will be constructed before any wild bison reach the reservation, see EA at 36; MOU Addendum. While CBU theorizes that there may be a heightened danger of escapes from a future FBR pasture, CBU Br. at 15, such speculation cannot support a preliminary injunction, see Emery v. Emery, 122 Mont. 201, 217, 200 P.2d 251, 261 (1948) ( [A]n injunction should not issue upon the applicant s mere apprehension that some [harm] will be done. ), overruled on other grounds by Libra v. Libra, 157 Mont. 252, 252, 484 P.2d 748, 748 (1971), and Cook v. Cook, 159 Mont. 98, 103, 495 P.2d 591, 593 (1972). In any event, the Fort Belknap tribes intend to hold transplanted bison in their initial 800-acre pasture for approximately three years, see EA at 36, which is beyond the timeframe relevant for a preliminary injunction, see Yockey v. Kearns Properties, LLC, 2005 MT 27, 18, 326 Mont. 28, 106 P.3d 1185 ( The limited function of a preliminary injunction is to preserve the status quo and to minimize the harm to all parties 16

23 pending full trial; findings and conclusions directed toward the resolution of the ultimate issues are properly reserved for trial on the merits. ). 7 IV. CBU S RULE 19 ARGUMENTS ARE FLAWED CBU fails to support the district court s finding that the Fort Peck tribes are not an indispensable party under Montana Rule of Civil Procedure 19(b). This finding was an abuse of discretion. See Defenders Br. at CBU argues that any hardship implicating the interest of the Fort Peck tribes under Rule 19(b) is speculative because all preconditions for a further bison transfer to the Fort Belknap Reservation, including the Fort Belknap tribes formation of an MOU with FWP, have not occurred. CBU Br. at This argument rings hollow given that CBU obtained an order from the district court prohibiting FWP from entering into any MOU with Tribal entities for the purpose of transplanting or receiving transplanted YNP bison. PI Order at 37. CBU cannot have it both ways, prohibiting FWP from entering into a MOU with the Fort Belknap tribes and then citing the absence of such a MOU to claim that the existence or extent of a hardship is speculative. CBU Br. at CBU reiterates the district court s findings concerning the absence of any necropsy on bison that died in transit and FWP s role in responding to bison escapes, but does not address Defenders arguments on those points. Compare CBU Br. at 39 with Defenders Br. at For the reasons already stated, the district court s findings were erroneous. 8 FWP addresses Rule 19 as it pertains to the Fort Belknap tribes. Defenders argument focuses only on the Fort Peck tribes. 17

24 CBU next argues that the Fort Peck tribes experience no hardship from holding these bison because the tribes are exactly where [they] expected to be. Id. at 31. However, under the bargain struck by the tribes, they could reasonably expect to care for as many as 32 bison only until adequate facilities are in place on the Fort Belknap Reservation to receive them, and transfer was to proceed as soon as is practical. MOU Addendum. The tribes did not agree to house, feed, and otherwise care for this group of bison throughout a protracted litigation and potential remand process as the district court ordered. See Am. Greyhound Racing, Inc. v. Hull, 305 F.3d 1015, 1023, 1027 (9th Cir. 2002) (holding that interference with tribal compacts rendered tribes indispensable parties and questioning whether the tribes [would] have made the same bargain under courtimposed terms). The district court acknowledged that court-mandated removal of bison from the Fort Peck Reservation would impinge upon tribal sovereignty. PI Order at 35. Forcing the tribes to hold bison is no less an interference, and the district court s decision to proceed in the absence of the [tribes] ignored the substantial prejudice [they] likely would incur. Republic of the Philippines v. Pimentel, 553 U.S. 851, 869 (2008). 9 9 FWP s promise to assist the Fort Peck tribes in securing feed for the bison does not eliminate all hardship. See CBU Br. at 31. The MOU does not specify how much assistance FWP must provide (costs can vary depending on feed type and quality, fuel and transportation costs, drought, and other factors), and it does not guarantee assistance with the other myriad costs associated with raising and 18

25 CBU further argues that the Fort Peck tribes hardship is undermined by [their] plan to grow [their] wild bison herd to at least 150 animals. CBU Br. at 31. However, the Fort Peck tribes plan to grow their own herd of bison is unrelated to their willingness to invest in bison destined for other tribes. Indeed, in a land of finite grazing resources, funding, and personnel, the burden imposed by the decision below may well be preventing the Fort Peck tribes from growing their own herd as they desire. See EA App. B at B-11 to B-15 (discussing bison fencing and management). CBU argues that adequate relief is possible in the absence of the Fort Peck tribes because complete relief means relief between existing parties, and not as between a party and the absent person whose joinder is sought. CBU Br. at 33 (citation omitted). Taken literally, this argument suggests that a third party is never indispensible because some form of relief can always be accorded to existing parties. However, in this context, adequacy refers to the public stake in settling disputes by wholes, whenever possible. Pimentel, 553 U.S. at 870 (quotations omitted). Where an order affording relief between existing parties threatens to spawn multiple litigation, the adequacy factor does not excuse joinder of necessary parties. Id. (quotations omitted); see also Davis ex rel. Davis v. United States, 343 F.3d 1282, 1293 (10th Cir. 2003) (holding judgment rendered in the containing bison (e.g., veterinary expenses, labor, infrastructure, vehicles, fuel). See MOU at 4. 19

26 Tribe s absence inadequate where it could well lead to further litigation and possible inconsistent judgments ). Here, if relief ordered by the district court were to construe the MOU in a manner contrary to the tribes construction (as appears to have occurred), then the tribes who would not be bound by the judgment would be free to sue FWP to enforce FWP s duties under that MOU as the tribes interpret it. See Blaze Constr., Inc. v. Glacier Elec. Coop., Inc., 280 Mont. 7, 11-12, 928 P.2d 224, 227 (1996) (holding that tribe was indispensable party where defendant was at risk of multiple and inconsistent obligations due to tribe s absence from suit). CBU s adequacy argument therefore fails. 10 CONCLUSION For the foregoing reasons, this Court should reverse the decision below. 10 CBU argues that, even if the Fort Peck tribes are indispensable, plaintiffs claims are salvaged by the public rights exception to traditional joinder rules. See CBU Br. at While CBU s Montana Environmental Policy Act claim may fall within this exception, see Conner v. Burford, 848 F.2d 1441, 1460 (9th Cir. 1988) (recognizing the public right to administrative compliance with the environmental protection standards of NEPA ), the state law underlying the decision below SB 212 does not apply and thus affords no public rights to vindicate in this action. 20

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