Town of Browning v. Sharp et al

Filing 157

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; denying 126 Motion for Preliminary Injunction Signed by Judge Brian Morris on 4/27/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
TOWN OF BROWNING, a
Montana Municipal Corporation,
Plaintiff,
CV-14-24-GF-BMM
v.
ORDER
WILLIE A. SHARP, JR.;
FORRESTINA CALF BOSS RIBS;
PAUL McEVERS; WILLIAM OLD
CHIEF; CHERYL LITTLE DOG;
SHAWN LAHR; ALVIN YELLOW
OWL; DEREK KLINE; HARRY
BARNES; ILIFF KIPP; TYSON
RUNNING WOLF; JOE McKAY;
EARL OLD PERSON; and NELSE
ST. GODDARD,
Defendants.

United States Magistrate Judge John Johnston entered Findings and
Recommendations on Plaintiff’s motion for a preliminary injunction and temporary
restraining order on March 25, 2015. (Doc. 150). Judge Johnston recommends
denying Plaintiff’s motion.
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Upon service of a magistrate judge’s findings and recommendations, a party
has 14 days to file written objections. 28 U.S.C. § 636(b)(1). Plaintiff timely filed
objections on April 7, 2015. (Doc. 152). Defendants responded to Plaintiff’s
objections on April 20, 2015. (Doc. 155). Plaintiff’s objections require this Court
to make a de novo determination of those portions of the Findings and
Recommendations to which objections apply. 28 U.S.C. § 636(b)(1). This Court
will review for clear error the portions of Judge Johnston’s Findings and
Recommendations to which Plaintiff did not object. 28 U.S.C. § 636(b)(1).
1. Ownership of the Water Utility System
Plaintiff’s objections focus on Judge Johnston’s finding that “it is unclear
whether Plaintiff or the Blackfeet Tribe is the true owner of the utility system in
question.” (Doc. 150). Plaintiff contends that it has demonstrated that it is the true
owner of the utility system. (Doc. 153).
Judge Johnston noted in his Findings and Recommendations that Plaintiff
has put forth some evidence of ownership of part of the utility system. Specifically,
Plaintiff points to an investment it made in a well and pump system in 1934.
Plaintiff also points to meeting minutes from 1956 which discuss a bidding process
for a water storage tank.
Defendants contend that these older systems have since been replaced.
Defendants further point to the Blackfeet Tribe’s ownership of various other

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components of the water utility system. Defendants state that the Blackfeet Tribe
owns the Two Medicine Reservoir; a water treatment plant located near East
Glacier, MT; a pipeline that transports water from the treatment plant to the Town
of Browning and the Browning community; a chlorinator booster station; and a
Supervisory Control and Data Acquisition system that electronically monitors and
controls the water treatment plant operations and water levels.
Defendants refer to the two systems as the “new system” and the “backup
system.” These are not two completely separate systems, however. The source of
the water seems to be the distinguishing characteristic between the two systems.
The “new system” receives treated water from the Two Medicine Reservoir and
the water treatment plant. The “backup system” receives water from wells Plaintiff
claims it owns. Defendants do not appear to contest ownership of these wells.
Defendants contend that all of the water, from either the Two Medicine
Reservoir or the wells, flows through the same water mains. Defendants claim
these water mains are owned by the Blackfeet Tribe.
Plaintiff appears to claim ownership of the same water mains. Plaintiff
contends that it can provide water to the Town of Browning using only the
“backup system.” This would involve pumping water from Plaintiff’s wells
through the water mains. Defendants assert that the water from the backup wells is
contaminated with high levels of sodium, iron, and manganese. (Doc. 155 at 4).

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Defendants assert that the water from the backup wells has an unpleasant taste.
Defendants contend that the Blackfeet Tribe built the new water system due to the
poor water quality of the backup well water.
Plaintiff asserts that ownership of the water utility system that it would use
to supply the Town of Browning with water is uncontested. Defendants’ brief
opposing Plaintiff’s objections to the Findings and Recommendations
demonstrates that a dispute as to ownership exists. Defendants further argue that
the backup well water is unfit to drink. Defendants contend that water from the
Two Medicine Reservoir is required to provide the Town of Browning with safe
drinking water. This Court agrees with Judge Johnston that the parties contest
ownership of the water utility system.
Plaintiff challenges Judge Johnston’s finding that Plaintiff fails to
demonstrate likelihood of success on the merits. Judge Johnston made this finding
on the basis that the parties contest ownership of the water utility system. This
Court agrees that Plaintiff has failed to demonstrate likelihood of success on the
merits.
Plaintiff further challenges Judge Johnston’s finding that Plaintiff has failed
to demonstrate that it will suffer irreparable harm in the absence of a preliminary
injunction. Again, Plaintiff bases its challenge on the notion that ownership of the
water utility system is uncontested. This Court agrees that Plaintiff has failed to

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demonstrate that it will suffer irreparable harm in the absence of a preliminary
injunction.
2. Balance of the Equities
Plaintiff contends that Judge Johnston incorrectly determined that Plaintiff
had failed to show that the balance of the equities tip in Plaintiff’s favor. Judge
Johnston looked at the underlying dispute between the Plaintiff and the Blackfeet
Tribe. Defendants contend that the Blackfeet Tribe, through the Two Medicine
Water Company, had been providing all water services and had been paying all
costs of operation and maintenance of the system. Defendants contend that
Plaintiff previously had collected revenue from customers on behalf of the Two
Medicine Water Company. Under the terms of the Memorandum of Agreement,
Plaintiff was supposed to remit most of the utility revenue to the Blackfeet Tribe.
Instead, Defendants allege that Plaintiff kept all of the money. Defendants contend
that the Blackfeet Tribe terminated the Memorandum of Understanding due to
Plaintiff’s breach. Defendants state that the Two Medicine Water Company then
began billing its customers directly for the services that it was providing, rather
than relying on Plaintiff to conduct the billing.
Plaintiff states that it owns the water utility infrastructure and is providing
utility services, but that Defendants are preventing Plaintiff from collecting
revenue for the service that Plaintiff is providing. Plaintiff therefore argues that the

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balance of equities tip in its favor. Plaintiff fails to address Judge Johnston’s
summary of the situation between the parties. Plaintiff does not dispute
Defendants’ claim that Plaintiff failed to remit to the Blackfeet Tribe the payment
that Plaintiff collected pursuant to the Memorandum of Agreement. Other than
reasserting, without any proof, that it is providing water utility services without
payment, Plaintiff has offered no justification for a finding that the balance of the
equities tip in Plaintiff’s favor. This Court agrees that Plaintiff has failed to
demonstrate that the balance of the equities tip in Plaintiff’s favor.
3. Public Interest
Plaintiff finally contends that Judge Johnston mistakenly determined that the
public interest does not favor a preliminary injunction. The parties have raised
issues about who actually owns and operates the water system. Judge Johnston
determined, however, that residents of the Browning community are currently
receiving water. Judge Johnston expressed concern that a preliminary injunction
could inadvertently prevent residents from receiving water. Defendants argue that
the Two Medicine Water Company is currently providing water and receiving
payment for the water that it is providing. If this Court granted a preliminary
injunction, the Two Medicine Water Company could be precluded from collecting
revenue, and it may decide to stop providing water services.

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Plaintiff argues that Judge Johnston erroneously found that members of the
Browning community could face a water shutoff if a preliminary injunction were
granted. Plaintiff argues that it is the true owner of the water utility infrastructure
and that it is currently providing water without compensation. Plaintiff offers only
its assurances that such a shutoff will not happen. Under these circumstances, this
Court agrees that a preliminary injunction could inadvertently cause a water
shutoff to the Browning community. A preliminary injunction is therefore not in
the public interest.
IT IS HEREBY ORDERED:
1.

Plaintiff’s motion for a preliminary injunction and a temporary restraining

order (Doc. 126) is DENIED.
DATED this 27th day of April, 2015.

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