Hagener v. Wallace, No. 01-385.

Docket NºNo. 01-385.
Citation2002 MT 109, 309 Mont. 473, 47 P.3d 847
Case DateMay 23, 2002
CourtUnited States State Supreme Court of Montana

47 P.3d 847
309 Mont. 473
2002 MT 109

M. Jeff HAGENER, Director, Montana Department of Fish, Wildlife and Parks, Plaintiff/Respondent,
v.
Len WALLACE and Pamela Wallace d/b/a Big Velvet Ranch, Defendants/Appellants

No. 01-385.

Supreme Court of Montana.

Argued and Submitted January 8, 2002.

Decided May 23, 2002.


47 P.3d 848
For Appellants: Stanley T. Kaleczyc, Kimberly A. Beatty, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, Montana, Arthur Wittich (argued), Attorney at Law, Bozeman, Montana

For Respondent: Robert N. Lane (argued), John F. Lynch, Agency Counsel and Special Assistant Attorney General, Helena, Montana.

For Amicus: Jack R. Tuholske (argued), Attorney at Law, Missoula, Montana.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiff, M. Jeff Hagener, Director of the Montana Department of Fish, Wildlife and Parks (FWP), brought this action

47 P.3d 849
on behalf of FWP in the District Court for the First Judicial District in Lewis & Clark County, initially seeking a temporary restraining order prohibiting the Defendants, Len and Pamela Wallace, from causing or allowing the transfer of approximately 500 game farm elk from their game farm in Ravalli County to the Crow Indian Reservation for release into the wild. The District Court granted the temporary restraining order. Following a show cause hearing to consider why a permanent injunction should not be entered, the District Court permanently enjoined the Wallaces from transferring their game farm elk to the Crow Indian Reservation. The Wallaces appeal the order of the District Court. We affirm the District Court's injunction

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err when it permanently enjoined the Wallaces from causing or allowing their game farm elk to be transported to the Crow Indian Reservation for release into the wild?

¶ 4 2. Did the District Court erroneously extend FWP's jurisdiction to activities within the exterior boundaries of the Crow Indian Reservation?

¶ 5 3. Did the District Court's permanent injunction violate the Commerce Clause of the United States Constitution?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 6 Len and Pamela Wallace own and operate the Big Velvet Ranch, a licensed alternative game farm located in Ravalli County, Montana. After Montanans approved Initiative 143 through the citizen initiative process in November 2000 to prohibit shooting alternative livestock for a fee or other remuneration and prohibit the transfer of existing livestock licenses, Len Wallace sought to reduce the size of his herd by donating approximately 500 head of elk to the Crow Indian Tribe. The Tribe, whose reservation is surrounded on three sides by the State of Montana in southcentral Montana, accepted his offer. Wallace then asked FWP by telephone what conditions FWP would agree to for the transfer of the elk to the Tribe for release into the wild. In a letter dated April 30, 2001, FWP's director, Jeff Hagener, responded to Wallace's inquiry. Hagener concluded that such a transfer would violate Montana law, specifically § 87-4-414(6), MCA, and § 87-5-711, MCA, stating "[b]oth of these statutes are intended by the legislature to protect native wildlife populations from genetic pollution, feral populations and disease transmissions which could occur if alternative livestock are released into the wild."

¶ 7 The Wallaces responded to FWP's letter on May 1, 2001. The Wallaces did not directly address Hagener's comments but derided FWP for what the Wallaces deemed to be FWP's bias against game farms. Furthermore, the Wallaces claimed that their elk were genetically superior to Montana's native elk because Big Velvet elk "bugle, have some real antlers, and are not as spooky" as native elk.

¶ 8 On the morning of May 2, 2001, despite FWP's letter, the Wallaces allowed the shipment of sixty-eight elk from their facility in Darby, Montana, to the Crow Indian Reservation. The truckload of elk had been inspected by representatives from the Department of Livestock (DOL) and were certified as healthy for shipment. As is customary in livestock transactions, the parties executed a bill of sale and the Tribe took title of the elk at the Wallaces' facility. The Crow Tribe arranged for and paid for all transportation costs to the Reservation. The Tribe did not have a game-proof fence in place around the exterior boundary of the Reservation. The sixty-eight elk were released into the wild.

¶ 9 When FWP heard of the transfer at about noon that day, it immediately sought and obtained an ex parte temporary restraining order from the First Judicial District Court, Lewis and Clark County, prohibiting the Wallaces from causing or allowing their elk to be transported to the Crow Indian Reservation. On May 3, 2001, the Wallaces moved to dissolve the temporary restraining order. The District Court denied the Wallaces' request on May 7, 2001. On May 9, 2001, the District Court held a show cause hearing to consider why the Wallaces should

47 P.3d 850
not be permanently enjoined. On May 10, 2001, the District Court permanently enjoined the Wallaces from "transferring their game farm elk to the Crow Indian Reservation." The Wallaces appealed the District Court's order on May 14, 2001

¶ 10 At the time FWP obtained the temporary restraining order, the Big Velvet herd had been certified by a state veterinarian as a tuberculosis-accredited herd, meaning that the herd had been tuberculosis-free based on three consecutive years of testing all animals twelve months or older. The Big Velvet herd was also in the process of being certified as brucellosis-free since all test-eligible animals had tested brucellosis-free for three consecutive years. The veterinarian determined that the herd was free of elk-red deer hybridization and, based on the large number of Big Velvet elk tested, opined that chronic wasting disease (CWD) did not exist in the herd. Therefore, because the veterinarian determined that the Big Velvet herd was tuberculosis-free, brucellosis-free, CWD-free and genetically pure, he concluded that the herd posed no realistic threat to Montana's livestock, native deer and elk populations, or human health.

¶ 11 The Crow Tribe has not participated in these legal proceedings and has not asked to intervene or file an amicus brief addressing the legal issues presented in this case. According to a letter sent from an attorney representing the Crow Tribe to the District Court, dated May 8, 2001, the authenticity of which was acknowledged at oral argument, "[i]n the Tribe's opinion, this is a matter regarding the assertion of State law over a citizen of the State of Montana, not the assertion of Montana law on the Reservation. As a consequence, the Tribe has little interest in this case at this time."

STANDARD OF REVIEW

¶ 12 Typically, we review a district court's grant or denial of an injunction to determine if the court abused its discretion. See Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 346, 922 P.2d 485, 493; Butler v. Germann (1991), 251 Mont. 107, 114, 822 P.2d 1067, 1072; Sampson v. Grooms (1988), 230 Mont. 190, 194, 748 P.2d 960, 963. However, where, as here, the district court bases its decision to grant such relief upon its interpretation of a statute, no discretion is involved and we review the district court's conclusion of law to determine whether it is correct. M.H. v. Montana High School Ass'n (1996), 280 Mont. 123, 130, 929 P.2d 239, 243.

¶ 13 Resolution of this case also involves interpretation or application of the Commerce Clause of the United States Constitution. We likewise review constitutional interpretations for correctness. Henry v. State Compensation Ins. Fund, 1999 MT 126, ¶ 10, 294 Mont. 448, ¶ 10, 982 P.2d 456, ¶ 10 (citing State v. Butler, 1999 MT 70, ¶ 7, 294 Mont. 17, ¶ 7, 977 P.2d 1000, ¶ 7).

DISCUSSION

ISSUE 1

¶ 14 Did the District Court err when it permanently enjoined the Wallaces from causing or allowing their game farm elk to be transported to the Crow Indian Reservation for release into the wild?

¶ 15 The Wallaces contend that the District Court erred when it issued a permanent injunction prohibiting them from transferring their elk to the Crow Tribe because the party seeking the injunction, FWP, lacked jurisdiction over the inspection, transportation, and health of the alternative livestock they owned. The Wallaces assert that pursuant to Montana's statutory scheme regulating game farm licensees, DOL, not FWP, had authority and primary jurisdiction over the transfer. In this case, DOL inspected the herd for brucellosis, tuberculosis, elk-red deer hybridization, and CWD, and granted a permit allowing transport of the elk to the Crow Indian Reservation. Therefore, the Wallaces contend that the transfer should have been allowed. Alternatively, the Wallaces argue that even if FWP had authority over the transfer, it could not demonstrate that harm would result from the transfer given DOL's conclusion that the Big Velvet herd posed no realistic threat to Montana's livestock, native deer and elk populations, or human health.

47 P.3d 851
¶ 16 In response, FWP asserts that the Wallaces violated various statutory requirements for game farm licensees which were its responsibility to enforce, whether or not they satisfied DOL's requirements. For example, FWP contends that it has the duty to protect native wildlife populations, enforce the fencing of game farms, and prevent the release of game farm elk into the wild. FWP contends that upon transfer of the Big Velvet herd to the Tribe, the elk would not have been confined behind a game-proof fence, would not have been transferred to another licensed alternative livestock ranch, and, as a result, could migrate back into Montana from the Crow Indian Reservation. Therefore, FWP contends that it had a duty to act and the District Court did not err when it granted the permanent injunction.

¶ 17 The...

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14 practice notes
  • Buhmann v. State, No. 05-473.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 31, 2008
    ...in an unfenced area. The Wallaces appealed the issuance of this injunction to this Court, and it was upheld in Hagener v. Wallace, 2002 MT 109, 309 Mont. 473, 47 P.3d 847. The Wallaces also sought injunctions against the enforcement of I-143 in Ravalli County District Court, as well as sepa......
  • Kafka v. Montana Dept. of Fwp, No. 05-146.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 31, 2008
    ...of the central nervous system of captive and free-ranging mule deer, white-tailed deer, and Rocky Mountain elk." Hagener v. Wallace, 2002 MT 109, ¶ 25 n. 1, 309 Mont. 473, ¶ 25 n. 1, 47 P.3d 847, ¶ 25 n. 2. The pertinent language of these statutes reads as follows: "An alternative livestock......
  • Mont. Cannabis Indus. Ass'n v. State, DA 11-0460
    • United States
    • Montana United States State Supreme Court of Montana
    • September 11, 2012
    ...they are correct. Valley Christian Sch. v. Mont. High Sch. Assn., 2004 MT 41, ¶ 5, 320 Mont. 81, 86 P.3d 554 (citing Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, 47 P.3d 847).DISCUSSION¶13 As a threshold issue, Plaintiffs argue that the State's appeal of only one of four paragraphs......
  • State v. Berosik, No. DA 07-0731.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 5, 2009
    ...interpreting a statute or rule of evidence. See State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458; Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, 47 P.3d 847. The court's interpretation is either correct or incorrect. Cf. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326,......
  • Request a trial to view additional results
14 cases
  • Buhmann v. State, No. 05-473.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 31, 2008
    ...in an unfenced area. The Wallaces appealed the issuance of this injunction to this Court, and it was upheld in Hagener v. Wallace, 2002 MT 109, 309 Mont. 473, 47 P.3d 847. The Wallaces also sought injunctions against the enforcement of I-143 in Ravalli County District Court, as well as sepa......
  • Kafka v. Montana Dept. of Fwp, No. 05-146.
    • United States
    • Montana United States State Supreme Court of Montana
    • December 31, 2008
    ...of the central nervous system of captive and free-ranging mule deer, white-tailed deer, and Rocky Mountain elk." Hagener v. Wallace, 2002 MT 109, ¶ 25 n. 1, 309 Mont. 473, ¶ 25 n. 1, 47 P.3d 847, ¶ 25 n. 2. The pertinent language of these statutes reads as follows: "An alternative livestock......
  • Mont. Cannabis Indus. Ass'n v. State, DA 11-0460
    • United States
    • Montana United States State Supreme Court of Montana
    • September 11, 2012
    ...they are correct. Valley Christian Sch. v. Mont. High Sch. Assn., 2004 MT 41, ¶ 5, 320 Mont. 81, 86 P.3d 554 (citing Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, 47 P.3d 847).DISCUSSION¶13 As a threshold issue, Plaintiffs argue that the State's appeal of only one of four paragraphs......
  • State v. Berosik, No. DA 07-0731.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 5, 2009
    ...interpreting a statute or rule of evidence. See State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458; Hagener v. Wallace, 2002 MT 109, ¶ 12, 309 Mont. 473, 47 P.3d 847. The court's interpretation is either correct or incorrect. Cf. State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326,......
  • Request a trial to view additional results

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