Citizens for Balanced United Statese v. Maurier

• Decision Date: 19 June 2013
• Docket Number: No. DA 12–0306.,DA 12–0306.
• Citation: Citizens for Balanced United Statese v. Maurier, 370 Mont. 410, 303 P.3d 794 (Mont. 2013)
• Court: Montana Supreme Court
• Parties: 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.

370 Mont. 410

303 P.3d 794

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,andDefenders of Wildlife and National Wildlife Federation, DefendantIntervenors and Appellants.

No. DA 12–0306.

Supreme Court of Montana.

Argued April 12, 2013.

Submitted April 16, 2013.

Decided June 19, 2013.

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.

Chief Justice MIKE McGRATHdelivered the Opinion of the Court.

[370 Mont. 412]¶ 1Joseph 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

¶ 2This case arises from the challenges presented to the State of Montana from bison which seasonally migrate out of Yellowstone National Park.Since 2000the 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.¹The goal was to create a 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.

[370 Mont. 413]¶ 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 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.

[370 Mont. 414]¶ 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 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 intervenordefendants appeal the District Court's order granting the preliminary injunction.

STANDARD OF REVIEW

¶ 9This 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 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 Courtthe 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.Statev. 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.

¶ 13Section 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 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...