Citizens for Balanced Use v. Maurier, 2013 MT 166 (June 19, 2013) (7-0) (McGrath, C.J.; Rice, J., concurring)
Issue: Whether the district court properly issued a preliminary injunction on the basis that the Department of Fish, Wildlife & Parks had violated § 87-1-216, MCA, by transferring bison to the Ft. Peck Reservation.
Short Answer: No. Tribal lands are not “private or public lands in Montana,” and the statute therefore does not apply.
Facts: Section 87-1-216, MCA, designates Yellowstone bison as a species requiring disease control, and 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 of public land in Montana that has not been authorized for that use by the private or public landowner.” It requires DFWP to develop and adopt a management plan before any wild buffalo under the department’s jurisdiction are released or transplanted onto “private or public land in Montana.” § 87-1-216(5). DFWP must hold a public hearing in the “affected county or counties,” and provide for public comment. § 87-1-216(6).
In 2004, the DFWP, National Park Service, and federal Animal and Plant Health Inspection Service began a quarantine program to isolate and study bison that migrated out of Yellowstone Park into Montana. The goal was to create a brucellosis-free herd that could eventually be relocated. DFWP established a quarantine facility just north of Yellowstone in 2005. In 2011, after five years of quarantine and testing, the DFWP considered relocating 60 bison from the quarantine facility. It released a draft environmental assessment in September 2011. In December 2011, it decided to transfer the animals to an existing 4800-acre pasture on the Ft. Peck Reservation in northeastern Montana, and to eventually transfer half of those animals to the Ft. Belknap Reservation, once suitable pasture is established there.
DFWP entered into a Memorandum of Understanding with the Ft. Peck Tribes on March 16, 2012, and most of the bison were transported to the reservation three days later. Under the MOU, the tribes agreed to continue the quarantine testing, adequately fence the animals, act within 72 hours to return any escaped bison, and maintain insurance to cover damages caused by escapes. Half of the animals are to be shipped to Ft. Belknap as soon as adequate facilities are built there.
Procedural Posture & Holding: Plaintiffs filed suit in January 2012, challenging the DFWP action and seeking to enjoin the bison transport. They applied for a TRO against the March 19, 2012 shipment of bison, but the district court denied the application because of procedural defects. Plaintiffs filed a new application on March 22, after the final shipment of bison to Ft. Peck had taken place. Subsequently, the district court held a hearing and issued a preliminary injunction. The state and intervenor defendants appeal, and the Supreme Court reverses.
Reasoning: A preliminary injunction is designed to maintain the status quo and prevent irreparable injury from occurring while a case is litigated. It is not available to restrain an act already committed.
The district court concluded DFWP violated § 87-1-216, MCA, by transferring the bison to Ft. Peck without consent of the affected landowners, and without having first adopted a management plan. The bison had already been transferred, and the Plaintiffs did not seek removal of the bison from Ft. Peck.
The statute applies when “wild buffalo or bison” are relocated to “private or public land in Montana.” A wild buffalo or bison “has not been reduced to captivity and is not owned by a person.” § 81-1-1-01(6); § 87-2-101(1). The quarantined bison have been captive for many years and are arguably not wild buffalo or bison. However, the parties did not raise this issue and it was not addressed by the lower court.
The district court concluded that the plain meaning of “public or private land in Montana” included tribal lands. The Supreme Court disagrees. Reservations and tribal lands are neither public nor private property. The Montana Legislature has enacted many statutes expressly referencing tribes. The lack of such reference in § 87-1-216 means the legislature did not intend the statute to apply to the transfer of quarantined bison to tribal lands.
Additionally, the balance of equities does not favor the Plaintiffs.
Justice Rice’s Concurrence: Any ambiguity in § 87-1-216 is resolved by the legislative history. During the floor debate, the House sponsor said that the statute “would have no effect on the tribe’s ability to receive buffalo” from FWP. ¶ 33. Nonetheless, “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 protected, is no less than maladministration.” ¶ 34.