lawrence a. anderson attorney at law, p.c. - turtle talk · pdf filelawrence a. anderson...

Lawrence A. Anderson Attorney at Law, P.C. 300 4th Street North P.O. Box 2608 Great Falls, MT 59403-2608 Telephone: (406) 727-8466 Facsimile: (406) 771-8812 E-mail: [email protected] Attorney for Defendants

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, GREAT FALLS DIVISION

__________________________________________________________________ Town of Browning, ) a Montana Municipal Corporation ) ) Plaintiff, ) CAUSE NO.: CV-14-24-6F-BMM-RKS ) v.s. ) Defendants’ Response in Opposition to ) Plaintiff’s Motion for Preliminary Willie A. Sharp, Jr.; Forrestina Calf ) Injunction and Temporary Boss Ribs; Paul McEvers; William ) Restraining Order Old Chief; Cheryl Little Dog; ) Shawn Lahr; Alvin Yellow Owl; ) Derek Kline; Harry Barnes; Iliff Kipp; ) Joe McKay; Earl Old Person; Tyson ) Running Wolf; and Nelse St. Goddard,) ) Defendants. ) __________________________________________________________________

Case 4:14-cv-00024-BMM-JTJ Document 129 Filed 12/11/14 of 33

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TABLE OF CONTENTS Table of Authorities ................................................................................................ i-v Introduction ............................................................................................................... 1 Statement of Facts ................................................................................................ 2-12

I. Town of Browning’s Failure to Meet Its Obligations .............................. 2 II. Ownership of the Water and Sewer Systems in Browning ...................... 4 III. Operations of the Water and Sewer Systems in Browning ..................... 7 IV. Water Supply in Browning .................................................................... 10 V. Town of Browning’s continued failure to pay for products and services for the Water and Sewer Systems in Browning ................ 11

Argument No. 1: Ex Parte Young Does Not Provide Jurisdiction to Grant the Requested Relief ................................................................................ 12-15 Argument No. 2: The Town Fails to Establish the Grounds for a Preliminary Injunction/Temporary Restraining Order ...................................... 15-26

Legal Standard ......................................................................................... 15-26

A. Likelihood of Success on the Merits ............................................ 16 B. Irreparable Harm .......................................................................... 21 C. Balance of Equities ....................................................................... 24 D. The Public Interest ....................................................................... 25

Conclusion .............................................................................................................. 26 Certificate of Compliance ....................................................................................... 27


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TABLE OF AUTHORITIES

Cases Agricola Baja Best, S. De. R.L. de C.V. v. Harris Moran Seed Co., 2014 WL 4385450, ___ F. Supp.___(S.D. Cal. 2014) .......................................... 25 Amoco Production Co. v. Gambell, 480 U.S. 531 (1987) ................................................................................................ 15 Ex Parte Young, 209 U.S. AT 157, 28 S. Ct. 453 ....................................................................... passim Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989 (9th Cir. 2011) ................................................................................... 22 Gallegos v. Jicarilla Apache Nation, 97 Fed. Appx. 806, 2003 WL 22854632, *2 (10th Cir. 2003) ................................ 18 Garcia v. Akwesasne Housing Auth., 268 F.3d 76 (2d Cir. 2001) ..................................................................................... 18 Great Falls Tribune v. Montana Public Service Com’n, 2003 MT 359, ¶37, 319 Mont. 38, 82 P.3d 876 ...................................................... 20 Hastetter v. Behan, 196 Mont. 280, 639 P.2d 510 (1981) ...................................................................... 20 Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L.Ed.2d 438 (1997) ...................... 13, 15, 19, 23 Japan Telecom, Inc. v. Japan Temecom America, Inc., 287 F.3d 866 (9th Cir. 2002) ................................................................................... 25 Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 54 S. CT. 146, 78 L. Ed. 293 (1933) ............................................... 24 Lacano Investments, LLC v. Balash, 765 F.3d 1068 (Aug. 28, 2014, 9th Cir.) .................................................................. 14


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Lofton v. Verizon Wireless (VAW) LLC, 2014 WL 6845797, __ Fed. Appx.___ (9th Cir. Dec. 5, 2014) .............................. 22 Matter of Request for Solid Waste Utility Customer Lists, 524 A.2d 386, 106 N.J. 508 (1987) ........................................................................ 20 McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010) ................................................................................... 18 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) ................................................................................................ 23 Montana Human Rights Div. v. City of Billings, 199 Mont. 434, 649 P.2d 1283 (1982) .................................................................... 20 Munaf v. Geren, 553 U.S. 674 (2008) ................................................................................................ 15 Nero v. Cherokee Nation of Oklahoma, 892 F.2d 1457 (10th Cir. 1989) ............................................................................... 18 Numbers Licensing, LLC v. bVisual USA, Inc., 643 F. Supp. 2d 1245 (E.D. Wa. 2009) .................................................................. 22 Pit River Home and Agr. Co-op Ass’n v. U.S., 30 F. 3d 1088 (9th Cir. 1994) .................................................................................. 23 Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) ................................................................................................ 15 R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d 979 (9th Cir. 1983), cert. denied, 472 U.S. 1016 (1985) .......................... 18 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) .................................................................................................. 18 Seller Agency Council, Inc. v. Kennedy Ctr. For Real Estate Educ., Inc., 621 F.3d 981 (9th Cir. 2010) ................................................................................... 25


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Seminole Tribe v. Florida, 517 U.S. 44, 116 S. Ct. 1114 (1996) ....................................................................... 19 Story v. City of Bozeman, 242 Mont. 436, 791 P.2d 767 (1990) ...................................................................... 25 Tindal, 167 U.S., at 223, 17 S. Ct. at 777-778 .................................................................... 13 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ................................................................................................ 15 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) .......................................................................................... 2, 15, 16 Yellowstone County v. Billings Gazette, 2006 MT 218, ¶46, 333 Mont. 390, 143 P.3d 135 .................................................. 20

Statutes and Rules United States Code 25 U.S.C. §377 .......................................................................................................... 7 25 U.S.C. §1302(a)(5) ............................................................................................ 17 42 U.S.C. §300f ........................................................................................................ 8 Montana Code Annotated §7-6-613, Mont. Code. Ann. ..................................................................................... 4 §60-4-403, Mont. Code Ann. .................................................................................... 5 §85-20-1501, Art. III.1, Mont. Code. Ann. .............................................................. 4

Other Authorities U.S. Department of Commerce, U.S. Census Bureau, American Fact Finder ............................................................................................... 2


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Wright & Miller, Federal Practice & Procedure, §3524.3 ...................................... 17


Defendants’ Response in Opposition to Plaintiff’s Motion for Preliminary Injunction and Temporary Restraining Order1 1

INTRODUCTION

The Town’s Preliminary Injunction/TRO motion suffers from both

substantive and procedural defects. The motion assumes that the Town “owns” the

basic elements of an operating utility. In fact, its motion fails to show the Town

owns (either by title or the present ability to exercise control over or the right to

control) the water utility or the sewer utility, or that it owns any currently used

infrastructure.

Essentially, the plaintiff attempts to use its motion to shift all control and

benefits of the utilities from the Tribe to the Town even in the absence of any

ownership rights. The Town’s motion, and indeed its entire case, is the functional

equivalent of a quiet title action. However, as will be shown below, Ex Parte

Young jurisdiction cannot be used in this fashion.

Now that this Court has found a jurisdictional basis to proceed (ECF 123),1

the plaintiff jumps to the conclusion in its motion that it has a high likelihood of

success on the merits. (ECF 127-0, pgs.9-10) While the Court may have resolved

the jurisdiction issue, it has not resolved either plaintiff’s 12(b)(6) or (7) motions

so as to establish the existence of a cause of action or that any cause of action will

succeed on its merits. And, the plaintiff makes no effort to show it can succeed on

the merits of any claim it has ostensibly brought.

1 Defendants have appealed the decision finding jurisdiction under the Collateral Order Rule. (ECF 124)



As will be shown below, by the standards of Rule 65, plaintiff’s TRO/ Preliminary

Injunction Motion must fail. Under Winter v. Natural Res. Def. Council, Inc., 555

U.S. 7, 20 (2008), injunctive relief is “an extraordinary remedy that may only be

awarded upon a clear showing that the plaintiff is entitled to such relief.” Id. at 22.

Plaintiff’s motion fails to show it is entitled to this extraordinary relief.

STATEMENT OF FACTS

This case arises out of the termination of the 1995 Memorandum of

Agreement (“1995 MOA” or “MOA”) between the Blackfeet Tribe and the Town,2

under which the Tribe and the Town established the manner in which the essential

governmental services of water, sewer and garbage would be provided to

Reservation residents. The 1995 MOA created Browning Consolidated Utility

Services (BCUS), and the Town was designated as the manager of the new utility.

I. Town of Browning’s Failure to Meet Its Obligations

The Town failed to meet its obligations under the terms of the 1995 MOA.

(Kline Aff., ¶3,4). The Town refused to remit payment to the Tribe for sewer

services and garbage services as required by the MOA. (Kline Aff., ¶3) The Town

refused to remit payment for required reserve accounts for the operations of the

new water system, even though it charged and received fees from customers to

2 The Town of Browning is located entirely within the exterior boundaries of the Blackfeet Indian Reservation. The population within the Town’s municipal limits is 92.7% Native American. U.S. Department of Commerce, U.S. Census Bureau, American Fact Finder.



fund such reserves. (Irgens Aff., ¶4). The Town also refused to meet with the

Tribe to discuss the operations of the water system for approximately two years.

(Kline Aff., ¶8). It also refused to provide the Tribe with any financial information

to accurately address the rate structure for the purpose of establishing water rates to

reflect the actual costs of water operations in Browning. Id.

In addition, the Town charged many households exorbitant water bills.

(Michell Aff., ¶3); (Trombley-Kipling Aff., ¶¶2,3); (Rides At The Door Aff.,

¶¶2,4); (Show Aff., ¶3). These exorbitant bills were not based on actual usage, but

estimated water use. (Trombley-Kipling Aff., ¶¶3,4); (Rides at the Door Aff.,

¶¶3,4); (Kline Aff., ¶18). In at least one case, the Town charged an elderly woman

on a fixed income over $1400 for one month’s utility services. (Michell Aff., ¶3,

Attachment 1). With a community that has an unemployment rate nearing 70%,

the Town’s exorbitant and arbitrary water bills, coupled with its refusal to meet

with the Tribe, and be financially transparent, created intolerable circumstances for

the Tribe and its members. (Kline Aff., ¶22).

The Tribe also discovered that the Town was commingling its utility funds

based on a review of the Town’s most recent audit, which was provided to the

Tribe by the Mayor. (Kline Aff., ¶¶11,12). The Town’s last audit (FY2010) shows

that $689,906, from water, sewer and garbage funds, was commingled, with

$619,689 improperly advanced out of the Town’s Water Fund. (Kline Aff., ¶15).



In other words, customer payments were improperly used by the Town to fund

more than just utility services. See §7-6-613, MCA.

Due to the Town’s failures and improprieties, the Tribe concluded that it was

no longer able to ensure the safety and stability of the community water supply in

the Browning area, and therefore, it was necessary to terminate the 1995 MOA in

the interests of the health, safety and welfare of the Tribal members. (Kline Aff.,

¶22). The Tribe thereafter assumed all operations of water and sewer service in

Browning, including maintenance to the infrastructure. (Yellow Owl Aff., ¶9).

II. Ownership of the Water and Sewer Systems in Browning

The Blackfeet Tribe owns the water and sewer distribution and treatment

systems serving Browning. (See ECF 71-1, Exhibits 11 – 20). Virtually all

improvements and replacements provided to the system since the 1960’s have been

funded by the Indian Health Service (IHS), and the IHS is expected to continue to

provide funding to improve the Tribe’s water and sewer infrastructure associated

with the treatment and delivery of water; and disposal, treatment and discharge of

sewer, for the Indian community in Browning. (Yellow Owl Aff., ¶2; Kline Aff.,

¶¶29, 30). Currently, the Tribe owns:

• The water supply for the system – storage water in Two Medicine Reservoir.

§85-20-1501, Art. III.1, MCA.

• The water treatment plant for the system located near East Glacier, MT. See



ECF 71-1, Exhibit 11.

• The pipeline transporting water from the treatment plant to the Town and

surrounding areas. See ECF 71-1, Exhibit 11.

• The chlorinator booster station for the system located at the Parson’s

Connection. See ECF 71-1, Exhibit 16.

• The water main serving the Town of Browning and surrounding areas. See

ECF 71-1, Exhibit 12. The Tribe was required to pay 25% of the costs of

relocating the Browning main water line because TMWC has over 1,000

customers in Browning. See §60-4-403, MCA; (Yellow Owl Aff., ¶¶13,14).

• The water storage tanks serving the system, including a new million gallon

water storage tank, and a 300,000 gallon water storage tank, both located on

Blackfeet Tribal Trust property in the Browning area. See ECF 71-1,

Exhibits 13, 14.

• The Supervisory Control and Data Acquisition (SCADA) system that

electronically monitors and controls water treatment plant operations and the

water levels in the new water storage tanks in Browning. See ECF 71-1,

Exhibit 15.

• The recently replaced sewer system serving Browning. See ECF 71-1,

Exhibit 17.

Of the two sewer lagoons serving the sewer system, the Last Star Lagoons



are located entirely on Blackfeet Tribal Trust property and are owned by the Tribe.

See ECF 71-1, Exhibit 18. The Hodson Lagoons are located on land substantially

owned by the Tribe, and the Tribe owns the sewer treatment building that treats

and discharges wastewater into the Tribe’s surface waters. See ECF 71-1, Exhibit

19, 20.

The Town bases its ownership claims, on the other hand, entirely on the

statements of Mayor Willie Morris, and nothing more. The documents attached to

Mayor’s affidavit fail to establish any Town ownership or title to water system

infrastructure, with the possible exception of facilities that serve ten trailers

acquired in 1995, and which are located outside the Town boundaries – an area that

under municipal law, the Town cannot provide utility services unless it receives

permission from the Tribe. (Kline Aff., ¶26; See ECF 115-1, Exhibit 1).

The 1934 Town Council meeting minutes, (See ECF 127-1, Exhibit A),

merely illustrate that the Town may have made an investment in a water well and

pump system in 1934, but this system has since been replaced by the Tribe. (See

ECF 71-1, Exhibit 11) The Town Council meeting minutes of 1956, (See ECF

127-1, Exhibit A), indicate a bidding process for a 500,000 gallon steel tank for

water storage. Even if this tank was purchased by the Town in 1956, it has since

been replaced by a new million gallon water storage tank, and 300,000 gallon

water storage tank, located on Blackfeet Tribal Trust property in the Browning



area. (See ECF 71-1, Exhibits 13,14). The Town’s contention, that it owns all

utility property east of the Parsons Connection, is a contention that it has failed to

prove and, in fact, cannot prove. Supra.

III. Operations of the Water and Sewer Systems in Browning

Two Medicine Water Company (TWMC) currently provides all water and

sewer services to Browning and East Glacier. (Yellow Owl Aff., ¶¶9,10; Bechel

Aff., ¶18). Customer payments directly fund all services provided by TMWC.

(Fitzpatrick Aff., ¶6, Yellow Owl Aff., ¶15). State licensed water and sewer

operators employed by TMWC furnish the water and sewer services. (Yellow Owl

Aff., ¶11). Therefore, in order to insure that the Browning community continues

to receive the essential governmental services of water and sewer, TMWC must

continue to bill water and sewer users from the customer list that it independently

created and developed. (Kline Aff., ¶¶24, 25; Crawford Aff., ¶¶2-5; Yellow Owl

Aff., ¶15).

TMWC operates under the supervision of Siyeh Development Corporation

(Siyeh), which is the Tribe’s Section 17 Corporation that functions separate from

Tribal government.3 (Fitzpatrick Aff., ¶1). Siyeh provides TMWC with human

resource and accounting services, including payment of all bills and payroll for 3 Siyeh Development Corporation is a federally chartered tribal corporation under Section 17 of the Indian Reorganization Act (IRA), 25 U.S.C. §377, and operates separate from Tribal Government. Pursuant to IRA, a Section 16 governmental unit (Tribal Government) and a Section 17 corporation, are distinct legal entities.



TMWC. (Fitzpatrick Aff., ¶3). As an experienced manager of Tribal corporate

enterprises, including the Tribe’s casino, grocery store, cable company, internet

company and heritage center, Siyeh provides TMWC with essential financial and

administrative services separate from Tribal government. (Fitzpatrick Aff., ¶¶1,2).

The Town does not provide the Browning community with any water or

sewer services. (Bechel Aff., ¶¶18,19). The Town does not provide the water

supply, the treatment of water required under the Safe Drinking Water Act, 42

U.S.C. §300f et. seq. (SWDA), or the infrastructure to deliver the water, or the

sewer service. (Yellow Owl Aff., ¶¶10,12; Bechel Aff., ¶¶18,19). TMWC

exclusively provides the community with tribal drinking water from Two Medicine

Lake. (Yellow Owl Aff., ¶¶10,12; Bechel Aff., ¶¶5,18,19).

In addition, the Town does not engage in any operations or maintenance of

the water and sewer systems in the Browning community. (Bechel Aff., ¶¶18, 19;

Yellow Owl Aff., ¶10; Irwin Aff., ¶7). In fact, water and sewer users who have

recently contacted the Town to address water and sewer issues at their households,

and have been directed by the Town to contact TMWC to address their water and

sewer problems. (Show Aff., ¶¶6,7; Gray Aff., ¶¶ 3,4; Yellow Owl Aff., ¶10).

Even Mayor Willie Morris requested that TMWC provide sewer services at his

home within the municipal limits of Browning. (Bechel Aff., ¶¶12,13). The Town

simply bills its customers for water and sewer services provided by TMWC.



(Irgens Aff., ¶7; Yellow Owl Aff., ¶8).

Some customers have taken advantage of the dispute between the Tribe and

the Town and are not paying either the Tribe or the Town for water and sewer

services. TMWC recently took steps to shut-off water services to approximately

sixteen such water users in Blackfeet Housing Authority units for failure to pay for

water services. (Irgens Aff., ¶9). All of the recent shut-offs have been within the

Blackfeet Housing Authority Units, located on Blackfeet Tribal Trust Land outside

of the Town of Browning municipal limits, and owned by the Blackfeet Tribe.

(Irgens Aff., ¶9; Kline Aff., ¶28)

The Blackfeet Housing Authority, which is a separate entity from Tribal

government, (Kline Aff., ¶9), has required that the tenants of Blackfeet Housing

obtain water and sewer services from TMWC. (Rides At The Door Aff., ¶¶9,10;

Irgens Aff., ¶11; Kline Aff., ¶28). TMWC conducted the shut-offs without the

consent of the Blackfeet Tribal Business Council. (Irgens Aff., ¶10). These shut

offs were administered to help alleviate the revenue shortfall created by the Town.

(Irgens Aff., ¶9). These customers cannot be served by the Town as a matter of

municipal law. See ECF 115-1, Exhibit 1, Section 4.02.70 (requiring consent of

the Tribe to serve areas outside Town boundaries).

TMWC continues to be the exclusive provider of water and sewer service,

inside and outside the municipal limits of the Town. (Yellow Owl Aff., ¶9; Bechel



Aff., ¶¶18,19). It has been the exclusive provider of water and sewer services

since October 1, 2013. (Yellow Owl Aff., ¶9). TMWC, and its licensed water and

sewer operators, have a duty to continue to provide safe drinking water and

sanitary sewer services to Browning. (Yellow Owl Aff., ¶11). The water and

sewer rates customers are charged for this service can be substantially reduced if

the Town would cease billing and receiving payments for services they are not

providing. (Irgens Aff., ¶18).

IV. Water Supply in Browning

Since the 1980’s, it has been known that the Town’s water supply system

was inadequate and unreliable. (Bechel Aff., ¶9). The Town itself identified the

inadequacies of the system in a news article in a national newspaper entitled

“Browning’s crumbling water system spews black sludge,” in which Willie Morris

extensively commented on the dilapidated Town system and the serious problems

associated with the system. (See ECF 115, Exhibit 2). Numerous technical studies

have also identified the same inadequacies over the three decades. (See ECF 115,

Exhibit 5). As a result, beginning in 2001, the Tribe undertook an enormous effort

and investment to bring tribal water from Two Medicine Lake to Browning by

constructing the new Blackfeet Community Water Project (BCWP) as a

replacement for the old Browning water supply. (Kline Aff., ¶6).

The Town maintains that it has been providing water service through its well



system since July 16, 2014. (ECF 127-0, pg. 6; ECF 127-1, ¶12). These

statements are false. The well system was turned on for a brief period, beginning

July 16, 2014, when an air lock caused the water tank to run low. (Bechel Aff.,

¶6). However, the well system was turned off within 30 days, (Bechel Aff., ¶8),

and water has since been supplied through the Tribe’s system using Two Medicine

Reservoir water, as it has been since 2012. (Bechel Aff., ¶8). The new SCADA

system recently installed and purchased by the Tribe will make sure that such an

air lock issue does not happen again. (Bechel Aff., ¶10).

The inadequacy of the Town’s well system has been known and documented

since the 1980’s, and that this is in fact why the Tribe and federal agencies,

including IHS, EPA, USDA, contributed funds to build a new $19 million water

system. Clearly, neither the Tribe nor the federal agencies would have provided

millions of dollars for a new system, if the old water supply was adequately

supplying the community with safe drinking water, meeting EPA standards. (Kline

Aff., ¶6).

V. Town of Browning’s continued failure to pay for products and services for the Water and Sewer Systems in Browning Currently, TMWC provides all operation and maintenance of the water and

sewer systems in Browning. (Yellow Owl Aff., ¶9; Bechel Aff., ¶¶18,19). TMWC

performs the operation and maintenance of the systems, with employees utilizing

equipment and materials provided by and paid for by TMWC. (Yellow Owl Aff.,



¶¶10,11; Bechel Aff., ¶¶18,19,20). While the Town continues to bill some

customers, it pays none of the costs of operation and maintenance or other costs of

the system, such as loan payments and reserve fund transfers, which TMWC pays

every month. (Fitzpatrick Aff., ¶¶7,8). Thus, the Town bills for water service

provided by TMWC and for which TMWC pays 100% of the cost. (Yellow Owl

Aff., ¶8; Irgens Aff., ¶9). The Town simply collects and keeps revenues from

customers without providing any service or paying any of the costs of operation or

maintenance, and without paying for treated water provided by the Tribe. (Yellow

Owl Aff., ¶8, Irgens Aff., ¶7). Even a Browning resident, who receives a monthly

water bill from the Town, recently asked the Town for information regarding its

purported drinking water services, and Mayor Willie Morris told her that since she

receives drinking water from TMWC, her request should be directed to TMWC.

(Reevis Aff., ¶¶2-4).

ARGUMENT NO. 1

Ex Parte Young Does Not Provide Jurisdiction to Grant the Requested Relief4 The plaintiff’s TRO/Preliminary Injunction Motion seeks to “restore” to it

the authority to operate and collect the revenue for the operation of a utility. As

noted, supra, this motion assumes plaintiff “owns” the elements of a utility, and

4 While the court has determined that this federal court action may proceed against the individual Tribal officials under Ex parte Young, (Doc. 123), the relief sought by plaintiff in the present motion directly implicates the defendants’ motions to dismiss under Rule 12(b)(6) and Rule 12(b)(7) on which the court has not yet ruled.



defendants fundamentally contest this assumption.

Ex Parte Young jurisdiction does not afford the type of injunctive relief the

plaintiff seeks here. The relief sought here would diminish, even extinguish, the

Tribe’s control over the Tribe’s Two Medicine Reservoir, the water source for the

utility, the Tribe’s water and sewer treatment systems, and the Tribe’s pumping

and distribution system.5 Item #1 of its motion (ECF 126) requests that defendants

be prohibited from “interfering with the Town’s ownership and operation of its

utility infrastructure, systems and services.”

The Supreme Court determined that Ex Parte Young jurisdiction cannot be

used to litigate the functional equivalent of a quiet title action in federal court.

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 117 S. Ct. 2028, 138 L.Ed.2d

438 (1997). In this case, brought in federal court against Idaho officials under Ex

Parte Young jurisdiction, the Coeur d’ Alene Tribe of Idaho alleged ownership of

Coeur d’Alene Lake. After extensive analysis of the parameters of the Ex Parte

Young doctrine, Justice Kennedy noted:

It is common ground between the parties, at this stage of the litigation, that the Tribe could not maintain a quiet title suit against Idaho in federal court, absent the State's consent. The Eleventh Amendment would bar it. Tindal, 167 U.S., at 223, 17 S. Ct. at 777-778. Despite this prohibition, the declaratory and injunctive relief the Tribe seeks is close to the functional equivalent of quiet title in that substantially all benefits of ownership and control would shift from the State to the Tribe. This is especially troubling when coupled with the far-reaching and invasive relief the Tribe seeks, relief

5 See the relief requested in the plaintiff’s motion (ECF 126).



with consequences going well beyond the typical stakes in a real property quiet title action. The suit seeks, in effect, a determination that the lands in question are not even within the regulatory jurisdiction of the State. The requested injunctive relief would bar the State's principal officers from exercising their governmental powers and authority over the disputed lands and waters. The suit would diminish, even extinguish, the State's control over a vast reach of lands and waters long deemed by the State to be an integral part of its territory. To pass this off as a judgment causing little or no offense to Idaho's sovereign authority and its standing in the Union would be to ignore the realities of the relief the Tribe demands.

521 U.S. 281-82. Similarly, by the Town’s proposed injunctive relief, all of the

functional benefits of ownership and control over the elements of the utility would

shift from the Tribe to the Town. The Tribe would lose sovereignty over its Tribal

assets.

The Ninth Circuit’s recent decision, in Lacano Investments, LLC v. Balash,

765 F.3d 1068 (9th Cir.2014), applies Coeur d'Alene Tribe to facts similar to this

case. Plaintiffs, owners of land patents issued by the federal government before

Alaska became a state, brought an action against Alaska officials seeking to have

the federal court declare that the plaintiffs, rather than the state, owned the

streambeds.

In Lacano Investments, the court rejected each of the plaintiff’s arguments to

distinguish the Coeur d'Alene Tribe decision. Whether the sovereign was a plaintiff

or a defendant made no difference to the court. Lacano Investments, supra 765

F.3d at 1075. Whether the issue involved title or merely the sovereign’s ability to

exercise regulatory authority over the property in question made no difference. Id



In either case, the federal court would be making decisions that would be the

“functional equivalent of a quiet title suit.” Id. And such an analysis is “especially

troubling” if the sovereign involved is a tribal sovereign. Id.; c.f. Idaho v. Coeur

d'Alene Tribe, 521 U.S. at 282.

ARGUMENT NO. 2

The Town Fails To Establish the Grounds for a Preliminary Injunction/Temporary Restraining Order

Legal Standard

In order to obtain a preliminary injunction, the movant must establish “that

he is likely to succeed on the merits, that he is likely to suffer irreparable harm in

the absence of preliminary relief, that the balance of equities tips in his favor, and

that an injunction is in the public interest.” Winter v. Natural Resources Defense

Council, 555 U.S. 5, 20 (2008), citing Munaf v. Geren, 553 U.S. 674, 689-90

(2008); Amoco Production Co. v. Gambell, 480 U.S. 531, 542 (1987); Weinberger

v. Romero-Barcelo, 456 U.S. 305, 311-312 (1982). A preliminary injunction is “an

extraordinary remedy never awarded as of right.” Id. at 24, citing Munaf v. Geren,

553 U.S. at 689-90. Rather:

In each case, courts “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Amoco Production Co., 480 U.S. at 542. “In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Romero-Barcelo, 456 U.S. at 312; see also Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496



(1941).

Id.

The Supreme Court specifically requires that the party seeking a preliminary

injunction must demonstrate that “irreparable harm is likely in the absence of an

injunction,” (emphasis in original, citations omitted); and it rejected the Ninth

Circuit’s more lenient standard that required only the “possibility” of irreparable

harm, if a strong likelihood of success on the merits is shown. Winter at 21-22.

A. Likelihood of Success on the Merits The Town argues it is likely to succeed on the merits. It grounds this

argument on the fact that under Ex Parte Young, a party may bring an action

against tribal members or officials for prospective injunctive relief. (ECF 127, pgs.

9-10). The Town’s argument begs the question. While Ex Parte Young may give

the court jurisdiction,6 that fact alone does not establish a cause of action or that the

Town is likely to prevail on the merits of its cause of action.

A cause of action under Ex Parte Young requires: 1) the state officer sued

must have a duty to enforce the challenged state law; 2) the action of the state

officer must constitute and alleged violation of federal law; and 3) the federal law

allegedly violated must be the “supreme law of the land.” Ex Parte Young will not

apply if federal law provides such an intricate remedial scheme that the court

6 Defendants contest the court’s jurisdiction and have appealed its decision. (ECF 125)



concludes that Congress did not intend for cases under Ex Parte Young. Wright &

Miller, Federal Practice & Procedure, §3524.3.

The Town’s TRO/Preliminary Injunction Motion addresses none of these

elements of Ex Parte Young. The only direct violations of federal law the Town

has raised are: 1) that the Tribe is applying Ordinance 98 to the Town; and 2) that

the Tribe is taking Town property in violation of the Indian Civil Rights Act

(ICRA), 25 U.S.C. §1302(a)(5) (prohibiting an “Indian tribe in exercising powers

of self-government” from “tak[ing] any private property for a public use without

just compensation”).

As to Ordinance 98, the Town maintains that the Tribe is applying the

Ordinance to the Town but does not provide any underlying basis for this claim.

The Town does not identify any provision of Ordinance 98 under which the Tribe

is acting or that is being applied to and enforced against the Town. Nor does the

Town indicate that it has been charged with a violation of any provision of

Ordinance 98 or that any enforcement proceedings have been brought against it

under Ordinance 98. 7

Review of Ordinance 98 shows it has virtually nothing to do with the issues

in this case. Ordinance 98 merely prescribes a rate setting structure and

engineering standards for the utility system. The Town has asserted no claims

7 The only thing being enforced against the Tribe is its obligations under the parties’ contractual agreements.



involving Ordinance 98’s rate structure or engineering standards. Indeed, as the

defendants have shown in their 12(b)(6) and 12(b)(7) motions, rather than a

violation of federal law, Ordinance 98 is a federal condition for funding of critical

water and sewer systems in Browning. In short, the Town does not show how

application of Ordinance 98 affects a taking of Town property or otherwise

constitutes a violation of federal law.

As to ICRA, the Town has conceded that this Court has no jurisdiction over

such claims. (ECF 97, pg. 3, fn1). See Santa Clara Pueblo v. Martinez, 436 U.S.

49, 56-67 (1978); R.J. Williams Co. v. Fort Belknap Housing Authority, 719 F.2d

979, 981 (9th Cir. 1983), cert. denied, 472 U.S. 1016 (1985). Thus, ICRA does not

serve as the basis for a suit against tribal officials. See Gallegos v. Jicarilla

Apache Nation, 97 Fed. Appx. 806, 2003 WL 22854632, *2 (10th Cir. 2003);

Garcia v. Akwesasne Housing Auth., 268 F.3d 76, 88 (2d Cir. 2001); Nero v.

Cherokee Nation of Oklahoma, 892 F.2d 1457, 1461-62 (10th Cir. 1989).

No allegation, either in the complaint or in the Town’s motion, identifies the

defendants that have a duty to enforce the challenged tribal law. Ex Parte Young,

209 U.S. AT 157, 28 S. Ct. 453. See e.g. McBurney v. Cuccinelli, 616 F.3d 393,

400-402 (4th Cir. 2010) (Virginia AG did not have specific duty to enforce state’s

Freedom of Information Act, thereby rendering Ex Parte Young inapplicable.)

The Town’s complaint and its TRO/Preliminary Injunction motion runs



afoul of Idaho v. Coeur d’ Alene Tribe’s admonition that “[t]o interpret Young to

permit a federal court action to proceed in every case where prospective

declaratory and injunctive relief is sough against an officer, named in his

individual capacity, would be to adhere to an empty formalism and to undermine

the principle, reaffirmed just last Term in Seminole Tribe v. Florida, 517 U.S. 44,

116 S. Ct. 1114 (1996)]….” The Town’s complaint and its motion here represent

nothing more than empty formalism that the Idaho v. Coeur d’Alene Tribe rejects.

Moreover, Idaho v. Coeur d’ Alene Tribe also makes clear that just because

there is a federal statutory or constitutional claim against state officials does not

enable a plaintiff to utilize the Ex Parte Young exception to the Eleventh

Amendment. Idaho v. Coeur d’ Alene Tribe, supra 521 U.S. at 272-279.

The Town’s entire case seems to rest on its inflammatory assertions that the

defendants strong-armed the Town’s customers to pay Two Medicine Water

Company,8 rather than the Town for utility services. (ECF 127, pg.11) As with the

Town’s other inflammatory assertions, it assumes a factual predicate that is in

dispute – that it “owns” the customers of the utility. Id. Like the issue of

ownership of the utility property, the court cannot provide a forum to litigate

ownership of the utility customers. Idaho v. Coeur d'Alene Tribe, supra.

Plaintiff asserts, without more, that Defendant Kline “stole” the plaintiff’s

8 Two Medicine Water Company is not before the court. The Town never explains how the Court could afford equitable relief without having the alleged wrongful actor as a party.



customer list. In fact, the TMWC developed its own customer list. (Kline Aff.,

¶¶24,25; Crawford Aff., ¶¶2-5). Even if the TMWC had not developed its own

customer list, the Town has no proprietary right to its customer list that is entitled

to protection. Under the 1995 MOA, the Tribe and the Town both formed the

Browning Consolidated Utility System and are both entitled to its customer list.

(MOA, §3.01). Public officers and bureaucrats do not own proprietary interests in

public documents and information. Yellowstone County v. Billings Gazette, 2006

MT 218, ¶46, 333 Mont. 390, 143 P.3d 135. Additionally, non-humans have no

privacy interests under Article II, Sections 9 and 10 of Montana’s constitution.

Great Falls Tribune v. Montana Public Service Com’n, 2003 MT 359, ¶37, 319

Mont. 38, 82 P.3d 876.

Moreover, whether the Town has a right to assert privacy regarding its

customers does not apply here. It does not apply because the Tribe has a right to

the Town’s customer lists. Montana Human Rights Div. v. City of Billings, 199

Mont. 434, 649 P.2d 1283 (1982) (as part of a HR complaint against the City of

Billings, Montana Human Rights Commission entitled to obtain other employees

records); Hastetter v. Behan, 196 Mont. 280, 639 P.2d 510 (1981) (one has no

expectation of privacy regarding telephone billing records).

Moreover, a utility regulatory agency, responsible for regulating a utility,

has authority to obtain customer lists. Matter of Request for Solid Waste Utility



Customer Lists, 524 A.2d 386, 393-94, 106 N.J. 508 (1987). The regulatory agency

may compel production of such lists, because they are related to a legitimate

governmental purpose. Id. Additionally, such lists contain no personal or

confidential information in the first instance. Id. As a regulated utility on the

Blackfeet Reservation, the Town has no right to such information as its customer

lists for the purposes of private gain. Id.

B. Irreparable Harm

The Town’s claim of irreparable harm to justify a Preliminary

Injunction/TRO suffers from the same defects as noted above. It erroneously

assumes that the Town owns a utility, including the constituent elements of water,

a water treatment system, a sewer treatment system, and a distribution system.

Moreover, the conduct that the Town claims constitute irreparable harm --

the receipt of billing invoices from Two Medicine Water Company and providing

that non-payment will result in termination of service -- occurred over thirteen

months before this motion was brought and more than eight months after the Town

brought this lawsuit. See ¶4 of Affidavits of Bremner (ECF 127-4), Barcus (ECF

127-3), Kennerly III (ECF 127-5), Kennerly (ECF 127-6), Gobert (ECF 127-7),

and Carlson (ECF 127-8).9 None of these affiants have asserted that their utility

9 ¶4 of these customer affidavits are hearsay under FRE 801. The out of court declarant is Two Medicine Water Company. The matter asserted, and sought to be proved, by the out of court declarant is TMWC’s threat to terminate water service. Where no time element exists in a



service has presently been threatened with a cut off or that their service has been

terminated. Moreover, none of the Town’s affiants have shown irreparable harm

from a threatened shut off, albeit thirteen months ago.

Before the extraordinary remedy of a preliminary injunction can be issued,

the movant must show that “irreparable injury is likely in the absence of an

injunction. Flexible Lifeline Systems, Inc. v. Precision Lift, Inc., 654 F.3d 989, 997

(9th Cir. 2011), c.f. Winter v. Natural Resources Defense Council, 555 U.S. at 22.

“Issu[ance] of a preliminary injunction based only on a possibility of irreparable

harm is inconsistent with our characterization of injunctive relief as an

extraordinary remedy that may only be awarded upon a clear showing that plaintiff

is entitled to such relief.” Id.

At best, the Town’s belated motion and affidavits merely show a possibility

of harm. They certainly fail to show likely harm or irreparable harm. The mere

fact that a party responding to a preliminary injunction motion has engaged in

offending conduct in the past fails to establish grounds for a preliminary

injunction. Lofton v. Verizon Wireless (VAW) LLC, 2014 WL 6845797, __ Fed.

Appx.___ (9th Cir. Dec. 5, 2014).

The Town does not concede that its damage claims in this action are barred.

preliminary injunction motion, affidavits should meet evidentiary standards. Numbers Licensing, LLC v. bVisual USA, Inc., 643 F. Supp. 2d 1245 (E.D. Wa., 2009)



However, it contends if the Town is in fact limited to seeking only prospective

injunctive relief, then it will be left without a remedy if its customers leave the

Town and sign up with TMWC as the result of TMWC’s threats and coercion.

(ECF 127, pg.11).

Besides the factually disputed predicates of this argument, its legal premise

is also false. The Town has a remedy for all its claims, but just not in this forum.

The Tribal Court is and has been open for such claims. The Court in Idaho v.

Coeur d'Alene Tribe recognized that the federal forum is not appropriate to litigate

the ownership issues, but recognizes that the state court forum was available to

litigate such issues. Idaho v. Coeur d’ Alene Tribe, 521 U.S. at 272-279.

Moreover, jurisprudence is full of examples where federal courts have

rejected litigants’ arguments that they would be left with no remedy, if the judicial

forum that they have chosen is unavailable. See e.g. Pit River Home and Agr. Co-

op Ass’n v. U.S., 30 F. 3d 1088, 1102 (9th Cir. 1994) and cases cited therein.

Another example is in arbitration jurisprudence. Objectors to arbitration have not

been successful in arguing that they would be left with no remedy if forced to

comply with agreed upon arbitration clauses. See e.g. Mitsubishi Motors Corp. v.

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 635(1985) (antitrust claimant forced

to use arbitration because “there is no reason to assume at the outset of the dispute

that international arbitration will not provide an adequate mechanism [to resolve



the dispute]”).

C. Balance of Equities

The evidence here shows the following: 1) that the Town does not own the

water source, the treatment system, or the major elements of the distribution

system for the utility (Yellow Owl Aff., ¶12; see ECF 71-1, Exhibits 11-20);

2) that the Town refused to meet with the Tribe to establish utility rates (Kline

Aff., ¶8); 3) that the Town’s last audit shows that it has unlawfully commingled

utility payments (Kline Aff., ¶15); 4) that it charges customers for water and sewer

maintenance services that it does not provide (Yellow Owl Aff., ¶¶8-10; Show

Aff., ¶¶6,7; Gray Aff., ¶¶3,4); 5) that while it charges for water and sewer services

that it does not provide, it refuses to pay for the water and sewer services it

receives from the Tribe (Yellow Owl Aff., ¶¶8-10; Irgens Aff., ¶¶6,7); 6) that when

asked to provide maintenance service by its customers, it refers them to the Tribe;

(Yellow Owl Aff., ¶10; Show Aff., ¶¶6,7; Gray Aff., ¶¶3,4); 7) that the only water

source the Town actually owns has not been in regular use for several years

(Bechel Aff., ¶¶5, 9); 8) that the only water source the Town owns does not meet

applicable standards (Bechel Aff., ¶¶7,9); and 9) that the Town has not provided

administrative services necessary to operate the utility (Kline Aff., ¶15).

The doctrine that “he who comes into equity must come with clean hands”

applies here. Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 241



(1933). An unclean hands argument applies when the plaintiff’s unequitable

conduct relates to the subject matter of its claims. Japan Telecom, Inc. v. Japan

Temecom America, Inc., 287 F.3d 866, 869 (9th Cir. 2002); Agricola Baja Best, S.

De. R.L. de C.V. v. Harris Moran Seed Co., 2014 WL 4385450, ___ F.

Supp.___(S.D. Cal. 2014)

The doctrine of unclean hands bars relief to a plaintiff who has violated good

faith or other equitable principles in the transaction at issue. Seller Agency Council,

Inc. v. Kennedy Ctr. For Real Estate Educ., Inc., 621 F.3d 981, 986 (9th Cir. 2010).

At a minimum, the concept of “good faith” means “honesty in fact and the

observance of reasonable commercial standards of fair dealing in the trade.” Story

v. City of Bozeman, 242 Mont. 436, 450, 791 P.2d 767, 775 (1990). Certainly, a

party to a transaction who refuses to meet with the other party to the transaction,

who refuses to pay for the goods and services the other party provides in the

transaction, and who refuses to conduct audits of its books required of Montana

law, is not acting in “good faith” in the transaction.

D. The Public Interest

The public has an interest, if not a right, to safe, clean drinking water, an

adequate sewer system and garbage service at a reasonable cost provided by

trained and experienced personnel. Only the Blackfeet Tribe can provide these

services. Only the Tribe possesses the water supply, the treatment facility and the



other infrastructure to provide these services. Only the Tribe has the necessary

trained and experienced personnel and administrative structure to deliver these

services. The Town, on the other hand, completely lacks the necessary elements

of a utility to provide any services.

Moreover, the public has an interest in assuring that it is properly charged for

water, sewer, and garbage service; and the income received from those charges is

properly accounted for and used. The Town, by its conduct, supra, lacks the

fidelity to properly account for the funds necessary to operate these utilities.

The Tribe and Tribal members also have an interest, if not an obligation, to

protect and safeguard the Tribe’s water and property, and to allow them to be used

only with proper authorization. These public and Tribal interests mandate that the

Town’s motion for preliminary injunction/TRO – which seeks to shift the

ownership and control of Reservation utilities to the Town of Browning – be

denied.

CONCLUSION

Based on the foregoing facts, arguments, and legal authorities, the

Town’s motion should be denied.

Respectfully submitted on this 11th day of December 2014.

/s/ Lawrence A. Anderson Lawrence A. Anderson



CERTIFICATE OF COMPLIANCE

Pursuant to Local Rule 7.1(d)(2), I certify that Defendants’ Response in

Opposition to Plaintiff’s Motion for Preliminary Injunction and Temporary

Restraining Order is double spaced, proportionately spaced, typed in Times New

Roman, has a typeface of 14 points, and contains less than 6500 words.

/s/ Lawrence A. Anderson

Lawrence A. Anderson


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