Temple v. Her Many Horses

Filing 55

ORDER denying as moot 43 Motion requesting permission to sell cattle; denying 5 Motion for TRO; granting in part and denying in part 32 Motion to Dismiss; denying as moot 35 Motion to Extend. Signed by Chief Judge Jeffrey L. Viken on 2/19/16. (SB)

UNITED STATES DISTRICT COURT
DISTRI C OF SOUTH DAKOTA
T
WESTERN DIVISION

CURTIS TEMP L
E,

CIV. 1 5-5062-J L
V
Pla in iff
t ,

vs.

ORDER

CL
EVE HER MANY HORSES,
Super in n n P in R dge Age n
te de t,
e i
cy,
Bureau of I n a nA ff r s,
di
ai
Defe n n .
da t

INTRODUCTION

Before the court i pla in iff Curt i Temple's ve ri ed compla in a n mot o n
s
t
s
fi
t
d
i
for a temporary restra inin order ("TRO") .
g

(Dockets 1

&

5) .

Mr. Temple filed a n

add i o n a ffi av i a n a memora n
t i al
d
t
d
dum in support of h i mot o nfor a TRO .
s
i
(Dockets 1 1

&

1 2) .

Defe n n Cleve Her Ma n Horses, the P in R dge Age n
da t
y
e i
cy

Super in n n filed a respo n a n a ffi av i inoppos t o nto Mr. Temple's
te de t,
se
d
d
t
i i
mot o nfor a TRO .
i

(Dockets 1 3& 1 4) . After prov d in n c e to the part i s, the
i g ot i
e

court held a hear in o nthe matter o nAugust 27, 20 1 5 .
g

(Docket 9) .

Attor n
ey

Terry Pechota appeared o nbehalf of pla in iffa n Ass i ta n U ni ed States
t
d
s
t
t
Attor n Megha n Roche appeared o nbehalf of defe n n
ey
da t.

The August 27

hear in was adjour n due to the part e s' o n in sett eme n d i cuss i n
g
ed
i
go g
l
t s
o s.
(Docket 1 6) .

The court reco n n the TRO hear in o nAugust 3 , 20 1 5 , after
ve ed
g
1
(Docket 1 8) .

rece v in n ficat o nthat the part e s d d n reach a settleme n
i g ot i
i
i
i ot
t.
Both part e s subm i ted post-hear in br i fi n
i
t
g
e g.

(Dockets 20, 2 1

&

22) .

Both

part e s subm tted add t o n suppleme n to the record alo n w th
i
i
i i al
ts
g
i
correspo n in respo n
d g
ses.
29 - , 31 , 3 , 3
4
4 8

&

42) .

,
(Dockets 24, 24- 1 , 24-2 , 26, 27, 29, 29- 1 , 29-2, 29- 3

Mr. Her Ma n Horses subseque n moved for the d i m i sal of Mr.
y
tly
s s
Temple's compla in o nthe bas i the court i n vested subject matter
t
s
s ot
jur i d i t o n
s c i .

(Dockets 3 , 33 & 4 1 ) .
2

mot o nto d i m i s.
i
s s

(Docket 3 .
7)

sell the cattle, (Dockets 4 3 4
, 4
47) .

&

Mr. Temple opposes the gover n
me n
t's

Mr. Her Ma n Horses moved for perm i s o nto
y
s i
45) , wh c h Mr. Temple res i ted.
i
s

(D 9
ckets 46

&

The cour t held a hear in o nFebruary 1 8, 2 0 1 6, to co n der Mr. Her Ma n
g
si
y

Horses' mot o nfor perm i s o nto sell the cattle as well as allegat o n of the
i
s i
i s
o n in trespass of Mr. Temple's cattle .
go g
FINDINGS OF FACT

Mr. Temple s a ne n
i
rolled member of the Oglala S oux Tr b e a n a cattle
i
i
d
ra n
cher o nthe P in R dge I n a nReservat i n
e
i
di
o .

(Docket 1 at p . 2) .

Mr. Her

Ma n Horses i the Super in n n of the P in R dge Age n at P in R d ge, South
y
s
te de t
e i
cy
e i
Dakota.

I .
d

I nh i federal compla in Mr. Temple asserts that var ous act o n
s
t,
i
i s

of Mr . Her Ma n Horses a n other tr i al actors v olated tr bal law a n wro n
y
d
b
i
i
d
gfully
depr ved h m of access to graz in perm i s to ra n u ni s 1 69 , 50 1 , 505 a n
i
i
g
t
ge
t
d
P5 1 4 . 1 Id. at 2 - 9 .

Mr. Temple's lay tr bal advocate , W ll am B i leck i Sr. ,
i
i i
e
,

test fi ed at the August 3 hear in that Mr. Temple's federal act o nco n
i
1
g
i
cer n
ed
o n ra n u ni s 50 1 a n 1 69 .
ly
ge
t
d

Do n
ald "Duke" Buffi n
gto nwas awarded g
raz in
g

perm ts for ra n u ni s 1 69 a n P50 l2 for the five-year per i d beg innin
i
ge
t
d
o
g

1 Mr. Temple ra i es ma n of the same allegat o n
s
y
i s inh i o n in l t gat o n in
s
go g i i
i
tr bal court. See Docket 1 - 1 .
i

2
Because the part e s referred to ra n u ni "P50 1 " as o n "50 1 ," the court
i
ge
t
ly
refers to ra n u ni P50 1 as "50 l
ge
t
."

2

November 1 , 20 1 2 and e n in October 31 , 20 1 7 .3
d g

(Docket 1 4 - ) .
4

Mr. Her

Many Horses test fied that although Mr. Bu ffi gto n graz ng perm t s became
i
n
's
i
i
e ff ct ve November 1 , 20 1 2 , they were not s g n u n l March 2 5 , 20 1 3 due to a
e i
i ed
ti
,
lag n complet in the paperwork.
i
g

See Docket 1 4-4 at pp. 1 , 4, 5

& 8.

On Apr l 27, 2 0 1 5, Mr. Her Many Horses sent Mr. Temple a letter by
i
cert fi ed ma l nform n g h m that follow n g a com p a n c n spect o no nApr l 2 2 ,
i
i i
i
i
i
li
e i
i
i
20 1 5, 3 cows4 and one bull belong n g to M r . Temple were graz n g n trespass on
6
i
i
i
ra n un t 1 69 .
ge
i

(HE 2 at p . 1 ) . 5

Mr. Her Many Horses' letter appr i ed Mr.
s

Temple :
Th i letter w ll se rv as your author zat i n to remove the l v estock.
s
i
e
i
o
i
You have three ( 3 days to remove the l v estock or show why these
)
i
l vestock are not trespass n g [
i
i
on] th i trust property. In the event
s
these l vestock are n removed or other arrangeme n have been
i
ot
ts
made, t w ll be n
i
i
ecessary to assess the penalt e s as prov d ed [ n ]
i
i
i
25 C .F.R . § 1 66 .8 00 et al. [ c ] , a n t
si
d ake such other act o n as may be
i
n
ecessary, in
clud in the mpoundme n and sale of the unauthor zed
g
i
t
i
l v estock t prevent cont nued trespass and to protect I n an L
i
o
i
di
ands.
Id.
Mr. Her Ma n Horses sent Mr. Temple a second letter by cert fi ed ma l o n
y
i
i
Apr l 2 7 , 20 1 5, n form in h m that a compl a n in
i
i
g i
i ce spect o n was co n
i
ducted o n

3Notw thstand ng Mr. Tem p
i
i
le's assert i ns that these graz in perm t s were
o
g
i
wrongly awarded to Mr. Buffi n
gto n Mr. Bu ffi gton was and st il i the current
,
n
l s
holder of the graz in perm ts for ra n u ni s 1 69 a n 50 1 .
g
i
ge
t
d
4Because the letter o n substant ates 3 cows (20 n one locat o n and 1 6
ly
i
6
i
i
n another) , the court fi n o n 3 of Mr. Temple's cattle were n trespass o n
i
ds
ly 6
i
range un i 1 69 as of Apr l 2 2 , 20 1 5 . See d . at 1 .
t
i
i
5The court refere n
ces the hear n g exh b ts as "HE." The court ncludes
i
i i
i
spec fic page numbers or sect i n p n c i es where n
i
o
i t
ecessary.

3

April 2 2 , 20 1 5, o nra n u n 50 1 a n approximately 202 cows, 2 bulls a n 1 0
ge
it
d
d
horses were fou n to be i ntrespass .
d

Id. at 4.

Th s letter co n n the same
i
tai ed

war n n regardi n the pote n
i g
g
tial impou n
dme n of tres p
t
assi n cattle as ide n
g
tified
above .

Id. at 5 .

O nMay 4, 20 1 5 , the acti n superi n n n se n Mr . Temple a n
g
te de t
t
other letter
by certified mail i n
formi n him that a complia n i n
g
ce spectio nwas co n
ducted o n
May 4 , 20 1 5 , o nra n u n 1 69 a n approximately 1 2 cattle a n 4 horses were
ge
it
d
d
fou n to be i ntrespass.
d

(HE 3at p. 4) .

The acti n superi n n n advised Mr.
g
te de t

Temple :
You were give n the optio n to remove your livestock or co n
tact my
o ffi e to show why these livestock had the right to graze upo n the
c
pr
operty. You have failed to comply with these i n
structio n .
s
Your livestock are n i n trespass followi n 1 66 . 80 3 a n [you] are
ow
g
d
liable for the value of products illegally removed plus a pe n
alty of
twice the value . Curre n
tly, the value of this trespassi n is equal to
g
$ 1 6. 2 0 .
4
Your livestock are also subject to be impou n
ded followi n CFR 2 5
g
[sic] , part 1 66 . 808. Through this letter you are n
otifi e your
d
livestock will be impou n
ded a n
ytime [sic] after (5) five days fr
om the
receipt of this n
otice if they have n bee n removed fr
ot
om this
property. There will be n further n
o
otices.
Id.
The acti n superi n n n se n Mr. Temple a seco n letter by certified mail
g
te de t
t
d
o nMay 5, 20 1 5 , i n
formi n him that a complia n i n
g
ce spectio nwas co n
ducted o n
May 4 , 20 1 5, o nra n u n 50 1 a n approximately 1 6 1 cows, 1 bull a n 1 0
ge
it
d
d
horses were fou n to be i ntrespass.
d

Id. at 1 .

4

This letter co n n the same
tai ed

war n n as the prior May 5, 20 1 5, letter except the value of the trespass was
i g
$3 564 . 1 1 .
,

Id. at 2 .

O nJu n 5 , 20 1 5 , Mr. Bielecki, o nbehalf of Mr. Temple, wrote Mr. Her
e
Ma n Horses sayi n " [a] s you are well aware of, there [have] bee nseveral n
y
g
otices
of alleged trespass issued agai n Mr. Temple respecti n ra n u n 1 69 a n
st
g
ge
its
d
50 1 , as a result of Sa n
dra a n Do n
d
ald 'Duke' Bu ffin
gto n complai n
's
ts."
1 5-2 at p. 1 ) .

(Docket

Mr. Bielecki explai n
ed:

While Mr. Temple will co n n to pursue to isolate his cattle o n
ti ue
to
his perso n
ally ow n a n / or leased la n
ed
d
ds, we are aski n that you
g
exte n further patie n with us as we further those pursuits. We
d
ce
are aski n that you defer a n actio n agai n Mr. Temple regardi n
g
y
s
st
g
[the ] subject u n a n trespass pe n n the outcome of litigatio ni n
its
d
di g
the Tribal courts.
Id. at 2 .
O nJuly 2 , 20 1 5 , Mr. Her Ma n Horses, respo n
y
ded to Mr. Bielecki's Ju n 5
e
d dicated the U n
ited States Departme n of the I n
t
terior, Bureau of
letter a n i n

·

In
dia nA ff irs ("BIA") "i n n to proceed with trespassi n a n impou n
a
te ds
g
d
dme n
t
procedures o nRa n U n 1 69 a n P50 1 if the livestock belo n n to Mr. Curtis
ge
its
d
gi g
Temple are n removed ."
ot

(Docket 1 4 - 3at p. 1 ) .

Mr. Her Ma n Horses
y

co n n
ti ued "Mr. Temple does n have a n right to graze his livestock o nRa n
ot
y
ge
U n 1 69 or Ra n U n P50 1 .
it
ge
it
trespassi n
g.
livestock.

Mr. Temple has bee nco n
tacted about the

Mr. Temple has bee n n
otified of our i n n to impou n his
te t
d

If Mr. Temple refuses to remove his livestock I will have n alter n
o
ative

but to impou n them."
d

Id. at 2.

5

O nAugust 1 2 , 20 1 5 , Mr . B e leck i�
i
ece ved a nema l fr
i
i om BIA la n
d
operat o n officer Li n Westo nw th a n attached letter dated August 1 2 , 20 1 5,
i s
o el
i
wh c h Mr . B e leck isumma ri ed as stat in that "Mr . Temple had three ( 3 days to
i
i
z
g
)
remove h s cattle before mpou n
i
i
dme n woul d beg in . . . ."
t

(Docket 22- 1 at if 1 0) ;

see also HE 4 at p . 1 .
The BI mpou n
A i
ded Mr . Temple's cattle o nAugust 1 9 , 20 1 5 .
p . 1) .

(HE 4 at

A veter in i na n a bra n in
ar a
d
d spector were prese n dur in the
t
g

mpou n
i
dme n process .
t

I .
d

O nAugust 2 1 , 20 1 5, Mr . Her Ma n Horses
y

in
formed Mr . Temple by letter that approx mately 1 2 1 head of Mr . Temple's cattle
i
had bee n mpou n
i
ded by the BIA .

Id .

The August 2 1 letter was ha n
d-del vered
i

to Holly W lso n also a lay tr i al advocate of Mr . Temple .
i
,
b

See d . at p . 7; see also
i

Dockets 2 1 at p . 1 5 (descr b in Ms . W l so nas Mr . Temple's lay advocate) ; 20- 1 at
i g
i
if 3 (descr b in how Ms . W l so ngave Mr . Temple the August 2 1 letter) ; 2 2 - 1 at
i g
i
if 8 (descr b in Ms . W lso n o n in role inthe case) .
i g
i
's
go g

The letter in
formed Mr .

Temple the "l vestock w ll be sold at the Gordo n Li estock Auct i nMarket o n
i
i
v
o
September 1 , 20 1 5[,] follow in the regular c
g
attle sale u n
less redeemed by you
pr i r to the sale ." 6
o

(HE 4 at p . 1 ) .

Mr . Temple was in
structed how to redeem

the l vestock pr o r to the publ c sale .
i
i
i

Id .

The BIA calculated Mr . Temple owed

$
274,402 .46 as a result of the trespass a n mpou n
d i
dme n .
t

Id . at 2 .

6The court i aware that the Gordo n Li estock Auct i nMarket i located in
s
v
o
s
Gordo n Nebraska . See Gordo n Li estock Market, http : / / www .gordo n vestoc k.
,
v
li
com .
6

The part e s in
i
formed the court the Gordo n Li estock Auct i nMarket
v
o
refused to sell Mr . Temple's cattle because t d d n wa n to be in
i i ot
t
volved inthe
pe n in l t gat i n
d g i i
o .

O nSeptember 3 20 1 5, the mpou n
,
i
ded cattle were moved to

the Joh n nRa n
so
ch n
ear Crawford, Nebraska.

(Docket 2 1 at if 5) .
0-

The cattle

were tested for Tr chomo n foetus, the causat ve age n of Tr i homo ni s i
i
as
i
t
c
a s
("Tr c h") as part of Nebraska state mport regulat o n
i
i
i s.
Tr c h i a co n
i
s
tag o us ve n
i
ereal protozoa ! d i ease.
s
tested pos t ve for Tr c h .
i i
i

Id .

(Docket 29 at p. 1 ) .
O n of Mr. Temple's bulls
e

Id .

De nni Hughes, a Nebraska State Veter in a na n A ni al Health
s
ar i
d
m
In
spector, asserts " [
t]he Nebraska Departme n of Agr culture (NDA) has spec fic
t
i
i
statutory author ty to preve n a n m t gate in
i
t
d
i i
troduct i nof Tr i homo ni s i in
o
c
a s to
the state ."

(Docket 29 - at p. 1 ) .
2

Accord in
gly, the Nebraska Departme n of
t

Agr culture i sued a five - o in protocol outl inin the process by wh c h Mr .
i
s
p
t
g
i
Temple's cattle could be released from quara n in .
t e

(Docket 29- 1 at p . 1 ) .

Step

o n of the protocol calls for the slaughter of the Tr c h-pos t ve bull "as soo nas
e
i
i i
poss b le. "
i

Id .

Step five of the protocol op in
es:

The eas i st a n qu c kest solut o n to th i sce n o i to sh p the
e
d
i
i
s
ar i s
i
rest of the herd back to South Dakota. U n
fortu n
ately , the
Tr c homo ni s i d ag n i a n amou n of t me elapsed mea n that
i
a s i
os s
d
t
i
s
th i group i n
s
s ow c n dered to be of Nebras k or g in, a n ca nn be
o si
a
i
d
ot
mported ba c in South Dakota legally , ' thout a nexcept o nfr
i
k to
wi
i
om
the South Dakota State Veter in a n, Dr. Dust in Oedekove n.
ar i
Id.
Mr. Temple , BIA offic a ls a n the legal represe n v es met o nOctober 1 4 ,
i
d
tat i
20 1 5, to d i cuss the protocol a n related i sue s .
s
d
s
7

(Docket 29 at p. 2 ) .

On

October 1 9 , 2 0 1 5, Mr. Temple, through Mr. Bielecki's affidavit, i n
formed the
court that a perso nat the Joh n nRa n castrated four bulls bei n held at the
so
ch
g
(Docket 3 - 1 at p . 3 .
1
)

ra n due to the Trich quara n n
ch
ti e.

Mr. Bielecki asserted

o n of Mr. Temple's c
e
ows had died a n others may be missi n
d
g.

Id. at 1 -4 .

O nOctober 26, 20 1 5, Dia n Ma nn
e
-Klager, a n
atural resources o ffi er at
c
the BIA, clarified that 1 1 4 cattle were corralled i nt h August 1 9 , 20 1 5,
e
(Docket 3 1 at if 3 .
4)

impou n
dme n of Mr. Temple's livestock.
t

Thereafter, 1 0

additio n a n
al
imals e n
tered the corrals while the bra n i n
d spector was worki n
g
a n three a n
d
imals escaped for a total of 1 2 1 a n
imals which were shipped to the
Gordo n L
ivestock Auctio n7
.

Id.

O n cow died alo n the way, o n n calf was
e
g
e ew

bor n a n the n
,
d
umber of impou n
ded bulls remai n co n
ed
siste n at three.
t

I .
d

Five of the impou n
ded a n
imals belo n to Tammy Steel a n Trey Temple, Mr.
g
d
Temple's spouse a n so n respectively, who received n
d
,
otice of the sale a n have
d
n yet sought the retur nof their cattle .
ot

Id. at ii 7.

O nNovember 4, 20 1 5, Mr. Bielecki, o nbehalf of Mr. Temple, a n Dr.
d
Me n
del Miller, a South Dakota assista n state veteri n
t
aria n formalized a
,
memora n
dum of u n
dersta n n regardi n their discussio n about the ha n n
di g
g
s
dli g
of Mr. Temple's cattle.

(Docket 3 2) .
8
-

O nFebruary 2 , 20 1 6, Dr. Miller

developed a protocol the state of South Dakota recomme n for the dispositio nof
ds
Mr. Temple's cattle quara n n i n Nebraska as well as for those i n South
ti ed
7
Mr. Temple, through Mr. Bielecki, asserts that the Ba n of the West has a
k
priority lie no nMr. Temple's cattle a n a n proceeds from their sale must be
d
y
used to first repay Mr. Temple's debt at the Ba n of the West, leavi n n surplus
k
g o
for Mr. Temple to pay the BI fi n
A
es. (Docket 42- 1 at p. 1 ) .
8

Dakota.

See Docket 49-8.

At least o n bull i nMr. Temple's remai n n South
e
i g

Dakota herd tested positive for Trich.

Id.

The BIA requests the court's

permissio nt o sell the cattle accordi n to its dispositio npla n which calls fo the
g
,
r
immediate sale of the a n
imals subject to the highest risk of spreadi n Trich and
g
selli n approximately 40 of the cattle for eve n
g
tual slaughter.

See Docket 44 &

·

44- 1 .
I nmatters u n
related to the impou n
ded livestock, the BIA co n
ducted
subseque n complia n i n
t
ce spectio n o nra n u n 1 69 a n 50 1 o nSeptember 9 ,
s
ge
its
d
2 0 1 5 a n September 1 6 , 20 1 5 .
d

See Docket 24.

As of September 9, 2 0 1 5 ,

approximately 87 of Mr. Temple's cows a n 1 bull were observed trespassi n o n
d
g
portio n of ra n u n 50 1 i nwhich Mr. Temple did n have a now n
s
ge
it
ot
ership
in
terest.

See Docket 24- 1 at p. 1 .

No n of Mr. Temple's livestock were
e

observed trespassi n o nra n u n 1 69 .
g
ge
it

I
d.

As of September 1 7 , 20 1 5,

approximately 8 1 of Mr. Temple's cows, 4 bulls, 1 steer a n 1 horse with a colt
d
were observed trespassi n o nra n u n 50 1 .
g
ge
it

See Docket 24-2 at p. 1 .

Mr. Temple's livestock were observed trespassi n o nra n u n 1 69 .
g
ge
it

No n of
e
Id.

O nDecember 4, 20 1 5 , approximately 46 cows a n o n bull were observed
d
e
trespassi n o nportio n of ra n u n 50 1 i nwhich Mr. Temple did n have an
g
s
ge
it
ot
ow n
ership i n
terest.

(Docket 44-2 at p. 1 ) .

O nthe same date, 26 cows were

observed trespassi n o nportio n of ra n u n 1 69 i nwhich Mr. Temple did n
g
s
ge
it
ot
have a now n
ership i n
terest.

I .
d

9

O nFebruary 1 7, 20 1 6, approximately 2 1 cows a n o n bull were observed
d
e
trespassi n o nportio n of ra n u n 50 1 i nwhich Mr. Temple did n have a n
g
s
ge
it
ot
ow n
ership i n
terest.

(HE 22 at p. 1 ) .

O nthe same date, 207 cows were

observed trespassi n o nportio n of ra n u n 1 69 i nwhich Mr. Temple did n
g
s
ge
it
ot
have a now n
ership i n
terest.

Id.

O nMay 1 4 , 2 0 1 5, the Oglala Sioux Tribal Court ("Tribal Court") e n
tered a n
order e n n n all defe n n i n
joi i g
da ts, cludi n the BIA a n Mr. Her Ma n Horses fr
g
d
y
om
taki n a n actio nrelated to impou n n Mr. Temple's cattle .
g
y
di g

(Docket 27- 1 ) .

O nAugust 3 20 1 5, the Tribal Court dismissed with prejudice a n portio nof its
,
y
May 1 4 , 20 1 5, emerge n temporary i n n
cy
ju ctio norder e n n n a n federal
joi i g
y
actor.

Id. at 2 .

The Tribal Court reaso n that it did " n have jurisdictio nover
ed
ot

the U n
ited States, its age n
cies, or U n
ited States' employees acti n i ntheir official
g
capacities like the BIA Superi n n n
te de t."

Id.

O nAugust 20, 20 1 5, the Supreme

Court of the Oglala Sioux Natio naffirmed the Tribal Court's dismissal a n
d
determi n tribal courts "ha[
ed
ve] n jurisdictio nover the BIA, which is a narm of
o
the federal gover n
me n
t."

(Docket 27-2 at p. 1 ) .

The Tribal Court's May 1 4 ,

2 0 1 5 , temporary i n n
ju ctio norder remai n i ne ff ct agai n all tribal e n
s
e
st
tities a n
d
officials but n the BIA or Mr. Her Ma n Horses .
ot
y

Id.

MOTION TO DISMISS

The court fi co n
rst
siders Mr. Her Ma n Horses' motio nto dismiss.
y

Mr.

Her Ma n Horses moved to dismiss Mr. Temple's complai n based o na lack of
y
t
subject mat jurisdictio nor alter n
ter
atively for failure to state a claim u n
der Fed.

10

R. Civ. P 1 2 (b) ( l ) and 1 2 (b) (6) , respectively, depending on how the court
.
interpreted the motion.

(Dockets 32

&

33 at p . 1 -3) .

Mr. Her Many Horses'

motion is premised on the same arguments raised in responding to Mr. Temple's
motion for a TRO where he asserted the court is not vested with the subject
matter jurisdiction necessary to adjudicate the complaint.

See Docket 32 ( " his
T

motion is based upon arguments that have already been raised before this Court
related to P
lainti ff Motion for a P
s
reliminary Injunction and related post-hearing
brie fs .
.")

The court interprets Mr. Her Many Horses ' motion to dismiss as

having been brought pursuant to Fed. R. Civ. P 1 2 (b) ( l ) seeking the dismissal of
.
Mr. Temple's complaint based o n a lack of subject matter jurisdiction .
As was made clear in the defendant's motion to dismiss and responses to
Mr. Temple's motion for a TRO , Mr. Her Many Horses has mounted a factual
attack challenging the court's subject matter jurisdiction to hear Mr. Temple's
complaint.

" court deciding a motion under Rule 1 2 (b) ( l ) must distinguish
A

between a '
facial attack' and a '
factual attack. ' "

Osborn v. United States, 9 1 8

F.2d 724, 729 n . 6 (8th Cir. 1 990) (citing among other cases Menchaca v.
Ch ry
sler Credit Corp. , 6 1 3 F.2d 507, 5 1 1 (5th Cir.), cert. denied, 449 U . S . 953
( 1 980)) .

" factual attack . . . challenges the existence of subject matter
A

jurisdiction in fact, irrespective of the pleadings, and matters outside the
pleadings, such as testimony and affidavits, are considered."

11

Menchaca, 6 1 3

F.2d at 5 1 1 (citing Mortensen v. First Federal Savings

&

L
oan Ass'n, 549 F. 2 d

884, 89 1 (3d Cir. 1 977)) (inte r
nal quotation marks omitted) . 8
" n a factual attack, the court considers matters outside the pleadings . . .
I
and the non-moving party does not have the benefit of 1 2 (b) (6) safeguards."
Osborn, 9 1 8 F.2d at 729 n.6 (8th Cir. 1 990) (citations omitted) .

"
Because at

issue in a factual 1 2 (b) ( l motion is the trial court's jurisdiction - very power
)
its
to hear the case there is substantial authority that the trial court is fr to
ee
weigh the evidence and satisfy itself as to the existence of its power to hear the
case."

Id. at 730 (quoting Mortenson, 549 F.2d at 89 1 ) .

A " istrict court has
d

authority to consider matters outside the pleadings when subject matter
jurisdiction is challenged under Rule 1 2 (b) ( l ."
)

Id. at 728 n.4 (citing L
and v.

Dollar, 330 U . S . 73 1 , 735 n.4 ( 1 947) ; Satz v. IT I
Fin. Corp. , 6 1 9 F.2d 738, 742
(8th Cir. 1 980) ) .

Accordingly, the court i s fr to consider those matters brought
ee

to its attention at the TRO hearings and the parties' subsequent filings in
resolving Mr. Her Many Horses' motion to dismiss.

See supra findings of f a at
ct

p. 2 .
I.

Subject Matter Jurisdiction

"
Federal courts are not courts of general jurisdiction and have only the
power that is authorized by Article III of the Constitution and statutes enacted by

si contrast, " '
n
[a] facial attack' on the complaint requires the court merely
to look and see if plaintiff has sufficiently alleged a basis of subject matter
jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion ." Menchaca, 6 1 3 F.2d at 5 1 1 (citations omitted) .
12

Cong r
ess pu r
suant the r . "
eto

ibe of Neb r
aska v. Babbitt, 9 1 5 F.
Winnebago T r

Supp. 1 57, 1 62 (D . S . D . 1 996) (quoting Ma r
ine E q
uipment Management Co. v.
United States, 4 F.3d 643 , 646 (8th Ci r 1 993)) (inte r
.
nal quotation ma r
ks
omit t d) .
e

" he th r
T
eshold · inquiry in eve r fede r l case is whethe rthe cou rt has
y
a

ju r
isdiction[,] and the Eighth Ci r
cuit has admonished dist r judges to be
ict
attentive to a satisfaction of ju r
isdictional r
equi r
ements in all cases."

Id.

umbe rCo . 337 F.2d 2 4 ,
,
(quoting Rock Island Millwo r Co. v. Hedges -Gough L
k
26-27 (8th Ci r 1 9 64) (inte r
.
nal quotation ma r omitted) .
ks
pr
oving subject matte rju r
isdiction falls on the plaintiff."
of Hous.

&

" he bu r
T
den of
VSL P
td. 'ship v. Dep't

,
.
Ur
ban Dev . 235 F.3d 1 1 09, 1 1 1 2 (8th Ci r 2000) (citations omitted) .

The United States Sup r
eme Cou r r
t ecognized that "
since the ju r
isdiction of
the cou r to hea rthe case may depend . . . upon the decision which it ultimately
t
r
eaches on the me r
its, it is necessary that the plaintiff set out in his complaint
the statuto r limitation on which he r
y
elies."

eign
L r
a son v. Domestic and Fo r

Comme r Co rp., 337 U . S . 682, 690 ( 1 949) .
ce

M r Temple asse r the cou r is
.
ts
t

vested with subject matte rju r
isdiction pu r
suant to 2 8 U . S . C . § 1 33 1 , 5 U . S . C .
§§ 70 1 -06, 28 U . S . C . § 1 36 1 and 28 U . S . C . § 220 1 -02 .

(Docket 1 at pp. 1 -2) .

M r He rMany Ho r
.
ses " oes not disag r that A r
d
ee
ising Unde rju r
isdiction
[28 U . S . C . § 1 33 1 ] gene r
ally exists,'' but a r
gues "
[p]laintiff cannot affi r
matively
establish a waive rof sove r
eign immunity unde rA r
ising Unde rju r
isdiction."
(Docket 2 1 at p. 3) .

13

A.

Pre-impoundment Claims

The court does not have jurisdiction to adjudicate Mr. Temple's claims
stemming from the alleged pre-impoundment conduct of Mr. Her Many Horses
relating to the allocation of tribal grazing permits.

Mr. Temple's

pre-impoundment allegations in his federal complaint mirror his claims pending
in Tribal Court.

Compare Docket 1 , with Docket 1 - 1 at pp. 1 -2 2 (Mr. Temple's

tri b complaint) .
al

Mr. Temple's allegations surrounding the tribe's grazing

permit allocation process underlie his repudiation of the BIA's determination
that his cattle were in trespass.

The resolution of Mr. Temple's grazing permit

allegations requires interpreting provisions of the Oglala Sioux Tribal
Constitution and Oglala Sioux tribal ordinances.

See Docket 1 at pp. 2 - .
9

" he issue of tribal exhaustion is a threshold one because it determines
T
the appropriate forum."

td.
nt'l, L v. White Earth Band of
Gaming World l

Ch ippe Indians, 3 1 7 F.3d 840, 849 (8th Cir. 2003) .
wa

" he tribal exhaustion
T

doctrine is based on " policy of supporting tribal self-government and
a
self-determination[ . ]"

Id. (quoting National Farmers Union Ins. Co. v. Crow

Tribe of Indians, 47 1 U.S. 845, 856 ( 1 985) ) .

" federal court should 'stay [ ] its
A

hand until after the Tribal Court has had a full opportunity to determine its own
jurisdiction. ' "

Id. (quoting National Farmers, 47 1 U . S . at 857) .

Tribal

exhaustion " vors exhaustion of available remedies in tribal court before a
fa
collateral or parallel federal court action may proceed . "

Id. (citations omitted) .

"
Exhaustion is mandatory, however, when a case fits within the policy . . . . "

14

Id.

" xhaustion is especially appropriate where the dispute arises out o f tribal
E
governmental activity. "

V,
Wilson v. Bull, No . CIV. 1 2-5078-JL 20 1 4 WL

4 1 2328, at * (D . S . D . Feb. 3, 20 1 4) (citations omitted) . The court finds the
5
doctrine of tribal exhaustion applies in this case as the resolution o f Mr. Temple's
pre-impoundment allegations hinge on issues of tribal law and governance and
because Mr. Temple's claims are pending in Tribal Court .
B.

Claims Relating to the BIA's Damage Calculations

Mr. Temple's claims challenging the BIA's assessment o f penalties and its
cost and damage calculations are not ripe for judicial review as he has not
exhausted his administrative remedies.
As a general matter, two conditions must be satisfied for agency
action to be " nal" : First, the action must mark the consummation
fi
of the agency's decisionmaking process - must not be o f a merely
it
tentative or interlocutory nature . And second, the action must be
one by which rights or obligations have been determined, or fr
om
which legal consequences will flow.
Hawkes Co. v. United States Army Corps of Engineers, 782 F.3d 994 , 999 (8th
Cir. 2 0 1 5) (quoting Bennett v. Spear, 520 U.S. 1 54, 1 77-78 ( 1 997)) .
I f the BIA erred in its penalty assessment o r its damage calculation, this is
precisely the type of error the agency should be given an opportunity to correct
before being hailed into federal court.

Se e Friends o f the Norbeck v. United

States Forest Serv . , 66 1 F . 3 d 969, 974 (8th Cir. 20 1 1 ) .

I t is also more efficient

fo Mr. Temple to take up these disputes directly with the BIA rather than
r
through litigation in federal court.

Id.

15

Although the BIA's assessment of penalties and cost and damage
calculations are included in the amount a trespasser must pay to redeem his
livestock, the correction of any such error is best left to the administrative agency
specializing in that field.

See, e.g. , 2 5 CFR §§ 1 66 . 8 1 2-8 1 5 .

The BIA is

equipped to ascertain the value of any destroyed forage or crops or the land's lost
value .

This is a different question than determining whether the impoundment

of Mr. Temple's livestock violated his due process rights .

See infr
a.

Mr. Temple

also retains the ability to pursue an administrative appeal of the BIA's monetary
levies after the livestock are redeemed or sold .

See 2 5 CFR §§ 1 66. 8 1 0,

1 66. 8 1 7-8 1 9 ; 2 5 CFR § 2 . . The court finds Mr. Temple has not exhausted his
7
administrative remedies in this regard.
C.

Impoundment Claims

The court next examines whether subject matter jurisdiction exists to
resolve Mr. Temple's claims relating to the defendant's impoundment of his
cattle .

Integral to the court's analysis is the doctrine of sovereign immunity.
" he waiver of sovereign immunity is a prere q
T
uisite to this Court's

jurisdiction over the plaintiffs complaint."
1 63 .

Winnebago Tribe, 9 1 5 F. Supp. at

" he basic rule of federal sovereign immunity i s that the United States
T

cannot be sued at all without consent of Congress."

Id. ( q
uoting Block v. North

Dakota, 46 1 U . S . 273, 287 ( 1 983)) (internal quotation marks omitted) .
" he AP waives sovereign immunity for actions against the United States
T
A
for review of administrative actions that do not seek money damages and
provides for judicial review in the federal district courts."
16

See Middlebrooks v.

United States, 8 F. Supp. 3d 1 1
69, 1 1 74 (D . S . D . 20 1 4) (citing Suburban Mortg.
Assocs., Inc. v. United States Dep't of Hous. & Urban Dev. , 480 F.3d 1 1 1 6, 1 1 2 2
(Fed. Cir. 2007)) .

"
Sovereign immunity d
oes not bar a claim w
hich is not

affirmative in nature but rather only requires t defendant office r to cease
he
s
unauthorized action."

Coomes v. Adkinson, 4 1 4 F. Supp. 975, 982 (D . S . D .

1 976) (citing State Highwa y Commission of Missouri v. Volpe, 479 F.2d 1 099,
1 1 23 (8th Cir. 1 973)) (further citations omitted) .

The Administrative P
rocedure

Act ( " P provides :
A A")
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial rev e w thereof. An action
i
in a court of the United States seeking relief other than money
damages and stating a claim that an . agency or an officer or
employee thereof acted or f a
iled to act in an official capacity or under
color of legal authority shall not be dismissed nor relief therein be
und that it is against the United States or that the
denied on the gr o
United States is an indispensable party.
5 U . S . C . § 702 .
" he AP is not an implied grant of subject-matter jurisdiction permitting
T
A
federal judicial review of agency action."

P
referred Risk Mut. Ins. Co. v. United

States, 86 F.3d 789, 792 n . 2 (8th Cir. 1 996) (citing Califano v. Sanders, 430 U. S .
A
99, 1 07 ( 1 977)) . 9 Section 702 of the AP provides judicial review of an agency

9 o the extent this district previously reasoned the AP is " indepe n
T
A
an
dent
jurisdictional grant," Coomes, 4 1 4 F. Supp. at 984 , the Supreme Court
subsequently determined to the contrary. Califano, 430 U . S . at 1 07 ( " e thus
W
conclude that the AP does not afford an implied grant of subject-matter
A
jurisdiction permitting federal judicial review of agency action.") .

17

action if the person seeking review: ( 1 ) identifies some agency action; and
(2) shows he has suffered a legal wrong or been adversely affected by that action
within the meaning of a relevant statute .

uj
Id. at 7 (citing L an v. National
92

Wildlife Fed'n, 497 U.S. 87 1 , 882-83 ( 1 990) ) .
The United States Court of Appeals fo r the Eighth Circuit held "
[t]here i s n o
right to sue fo r a violation o f the AP in the absence of a '
A
relevant statute' whose
violation forms the basis for [the] complaint."

egal Serv.
Id. (quoting El Rescate L

v. Executive Office of Immigration Review, 959 F.2d 742 , 753 (9th Cir. 1 9 9 1 ) )
(some internal quotation marks and further citations omitted) .

"
[T]o be

'
adversely affected or aggrieved . . . within the mea n
ing' of a statute, the plaintiff
must establish that the injury he complains of . . . falls within the '
zone of
interests' sought to be protected by the statutory provision whose violation forms
the legal basis for his complaint."

g
L a n 497 U . S . at 883 (quoti n Clarke v.
uj ,

Securities Indust ryAssn . , 479 U . S . 388, 396-97 ( 1 9 87) ) .
The United States Supreme Court i n
structs that the " eleva n statute" in
r
t
§ 702 be i n
terpreted broadly.

Clarke, 4 79 US. at 396-97 (noting that the Court
.

previously relied on the legislative history of a much later statute rather than the
statute alleged to have been violated) (citing Ass'n of Data P
rocessi n Serv.
g
,
Organizations, Inc . v. Cam p 397 U . S . 1 50 , 1 53 ( 1 970) ) .

The Supreme Court

also acknowledged " he trend is toward enlargement of the class of people who
t
may protest administrative action."

Data P
rocessin g 397 U . S . at 1 54 .
,

The

Data P
rocessin gCourt characterized the zone of interest test as " hether the
w

18

interest sought to be protected by the complainant is arguably within the zone of
interests to be protected or regulated by the statute or constitutional guarantee
in question. "

I d . at 1 53 .

The zone o f interest test must be understood in light o f " he presumption
t
in favor of judicial review of agency action."

Clarke, 479 U . S . at 399 .

Accordingly, " h e 'zone of interest' test is a guide for deciding whether, in view of
[t ]
Congress' evident intent to make agency action presumptively reviewable, a
particular plaintiff should be heard to complain of a particular agency decision."
Clarke, 479 U . S . at 399 .

" he test is not meant to be especially demanding; in
T

particular, there need be no indication of congressional purpose to benefit the
would - e plaintiff."
b

Id. at 399-400 (citing Investment Company Institute v.

Cam p 40 1 U . S . 6 1 7 ( 1 97 1 ) ) .
,
The Secretary o f the Dep a
rtment of the Interior's ( "
Secretary'') authori ty to
regulate and ultimately impound livestock trespassing on Indian agricultural
lands must be viewed in light of the purposes and objectives of the American
Indian Agricultural Resource Management Act ( " IARMA") and the United States '
A
trust responsibility owed to Indian tribes and their members.
§ 37 1 3 .

See 25 U . S . C .

AIARMA charges the Secretary with : ( 1 ) " stablish[ing] civil penalties for
e

the commission of trespass on Indian agricultural lands"; (2) "
designat[ing]
responsibili ty within the Department of the Interior for the detection and

19

investigation o f Indian agricultural trespass"; and (3) to " forth responsibilities
set
and procedures for the assessment and collection o f civil penalties ." 10

Id .

The statutory purposes o f AIARMA include " arry[ing] out the t ru t
c
s
responsibility o f the United States" and " ak[ng ] part in the managemen t o f
t
Indian agricultural lands . . . in a manner consistent w the trust responsibility
ith
o f the Secretary and with the objectives o f the beneficial owners[ .] "

25 U .S .C .

§ 3702 . An objective o f AIARMA is " o assist trust and restricted Indian
t
landowners in leasing their agricultural lands . . . consistent with prudent
management and conservation practices, and community goals as expressed in
the tribal management plans and appropriate tribal ordinances ."
§ 37 1 1 (a) (6) .

25 U .S .C .

The BIA " as a trust responsibility to protect, conserve, utilize,
h

and manage Indian agricultural lands consistent with its fiduciary obligation
and its unique relationship with Indian tribes[ . ") 25 U .S .C . § 370 1 (2) .
The court finds 25 U .S .C . § 37 1 3 conferring power in the Secretary to
regulate trespasses on Indian agricultural lands permits judicial review .

Cf .

Jones v . Freeman, 400 F .2 d 383, 389 - 0 (8th Cir . 1 968) (The Eighth Circuit held
9
the statutes delegating authority to the Secretary of Agriculture to protect the
national forests, 1 6 U .S .C . § 55 1 and 7 U .S .C . § 1 0 1 1 , permit judicial review .) .
The court further finds Mr . Temple's alleged injury, the unconstitutional
impoundment of his cattle, to be within the zone of interests protected by the
lD
Following the enactment of the AIARMA, the BIA promulgated
regulations governing trespass on Indian agricultural lands . See 2 5 CFR
§§ 1 66 .800-8 1 9 .
20

statute .

See Clarke, 479 U . S . at 399-400 ( " he test is not meant to be especially
T

demanding . . . . ) .
"

Section 37 1 3 and the corresponding regulations, 2 5 CFR

§§ 1 6 6800-8 1 9 , were enacted with particular purp o
.
ses and objectives in mind
upp.
See Coomes, 4 1 4 F. S
against which the BIA's actions are to be evalu a
ted. ·
at 986.

Implicit in the Secretary's impoundment regulations is that the owner o f

alleged trespassing cattle be given adequate procedural safeguards to ensure his
cattle are not unlawfully impounded.

Mr. Temple's interest in insuring the

impoundment regulations provide adequate safeguards and that the sa fe guards
have been satisfied in his case cannot be denied.

Mr. Temple is an Oglala Sioux

tribal member, and the United States owes fiduciary obligations to Indian tribal
member s in its management o f Indian agricultural lands as part o f its trust
responsibilities . Id. ; see also 25 U . S . C . § 370 1 (2 ) .
The BIA " oes not have despotic power [in dealings with Indians] but is
d
subject to applicable restrictions."

Coomes, 4 1 4 F. Supp. at 986.

The Oglala

Sioux Tribe Supreme Court dismissed Mr. Her Many Horses fr
om Mr. Temple's
tribal action, acknowledging that "
OST Courts have no jurisdiction over the
e deral government."
f

(Docket 27-2 at p. 2) .

In Mr. Temple's fe deral case, Mr.

Her Many Horses asserts the doctrine of sovereign immunity is jurisdictional in
nature so this court also lacks the subject matter jurisdiction necessary to
eva uate the lawfulness of the impoundment of Mr. Temple's cattle until a fter
l
they are sold.

However, the Eighth Circuit when evaluating the impoundment

procedures of the National Forest Service held that "
[e]ven though the Secretary

21

acted within his authority in promulgating the regulation, he has no right to claim

sovereign immunity against a landowner who claims improper impoundment."
Jones, 400 F.2d at 389 (emphasis added) .
Mr. Her M
any Horses next asserts the court lacks jurisdiction over Mr.
Temple's complaint because the BIA has not rendered a final decision in the
case.

Se
ction 704 of the A P provides "
A
[a]gency action made reviewable by

statute and final agency action for which there is no other adequate remedy in a
court are s u ect to judicial review."
bj

5 U . S . C . § 704 .

With regard to the

interplay between § 702 and § 704 of the AP the Eighth Circuit previously
A,
rejected the Secretary of the Department of the Interior's contention that § 702
" xists only to allow Li dicial ] review of a final agency decision."
e
u

See Red L
ake

Band of Ch ippe Indians v. Barlow, 846 F.2d 474, 475 (8th Cir. 1 9 88) .
wa
The court in Red L
ake held that " he waiver of sovereign immunity
t
contained in section 702 is not dependent on the application of the procedures
and review standards of the AP
A.

It is dependent on the suit against the

government being one for non-monetary relief."

Id. at 4 76; see also

Muniz-Muniz v. United States Border P
atrol, 74 1 F.3d 668, 673 (6th Cir. 2 0 1 3)
(collecting cases) (noting that "
[o]ther circuits . . . are unanimous in their
conclusion that a plaintiff who seeks non-monetary relief against the United
States need not also satisfy the requirements of § 704 of the AP before there is a
A
w
aiver of sovereign immunity.") ; Delano Farms Co. v. California Table Grape
Comm'n, 655 F.3d 1 337, 1 344 (Fed. Cir. 20 1 1 ) (holding that "
section 702 of the

22

AP waives sovereign immunity for non - onetary claims against federal
A
m
agencies . . . . It is not limited to '
agency action' or 'final agency action, ' as t h
ose
terms are defined in t h AP
e
A.") .
"
[S]ection 704's 'final agency action' requirement only limit[s] t h viability
e
of claims made under t h AP and because section 702 operate[s] as a waiver for
e
A,
all nonmonetary claims, including t h
ose claims not made under t h AP section
e
A,
704 did not limit section 702 's waiver of sovereign immunity."

Treasurer of New

Jersey v. United States Dep't of Treasu ry 684 F.3d 382, 398 ( 3 Cir. 2 0 1 2) ; see
d
,
also Trudeau v. Fed. Trade Comm'n, 456 F.3d 1 78, 1 87 (D . C . Cir. 2006) ( h
olding
t h § 702 's waiver of sovereign immunity " pplies regardless of w h h t h
at
a
et er e
[agency's] press release constitutes 'final agency action . ' ") ; Winnebago Tribe, 9 1 5
F. Supp. at 1 65 ( " h waiver of sovereign immunity in § 702 is not limited to suits
T e
broug h under t h AP
t
e
A.") .

Here, Mr. Temple does not seek m
oney damages but

rat h only t h h impounded cattle be returned to h
er
at is
im.
T h court finds t h d
e
e efendant h waived sovereign immunity and t h it is
as
at
vested wit hsubject matter jurisdiction to adjudicate Mr. Temple's Fift h
Amendment due process claims relating to t h impoundment of h cattle under
e
is
28 U . S . C . § 1 33 1 .

See Coomes, 4 1. 4 F. Supp. at 983 ( "
Consequently, since

plaintiffs do not ask [for] money damages and, given finality, t h government
e
expressly consents to suit, t h
ere appears no reason pertaining to sovereign
immunity w h t h Court s h
y is
ould not proceed to consider t h plaintiffs' claims.") .
e
Mr. Temple adequately alleged Mr. Her Many Horses took h cattle wit h
is
out due

23

process of law in violation of the Fifth Amendment of the Constitution.
Furthermore, Mr. Temple's "
due process claim . . . [also] invokes the power of t h
e
federal courts t grant injunctive relief against a department of the executive
o
branch of the federal government."

Id.

With regard to Mr. Temple's administrative claim relating to the
impoundment of his cattle, Mr. Her Many Horses asserts the BIA's decision does
not become final and Mr. Temple's appeal rights do not vest until Mr. Temple
redeems his cattle .

(Docket 2 1 at p . 1 8) .

As a general matter, two conditions must be satisfied for agency
action to be "
final": First, the action must mark the consummation
of the agency's decisionmaking process - must not be of a merely
it
tentative or interlocutory nature. And second, the action must be
one by which rights or obligations have been determined, or from
which legal consequences will flow.
Hawkes Co. v. United States Arm y Corps of Engineers, 782 F.3d 994, 999 (8th
Cir. 2 1 5) (quoting Bennett v. Spear, 520 U . S . 1 54, 1 77-78 ( 1 997) ) .
0
For all practical purposes, once Mr. Temple's cattle are sold they are gone
and all may be slaughtered .

(Docket 44- 1 ) .

Mr. Temple i s a cattle rancher who

derives his livelihood based on his ability to maintain and grow his cattle herd .
Because Mr. Temple's cattle are now considered be a part of a Trich infested
herd, approximately 40 of the cattle will be sold for immediate or near -mmedia t
i
e
slaughter and approximately 67 will be sold with the disclosure that they come
from a Trich infested herd, causing the cattle to be marketed and sold at a much
lower sale price than normal.
without restriction.

Id.

See Docket 44- 1 .

Approximately 20 will be sold

A potential action challenging the BIA's damage
24

calculation and penalty assessment is a small consolation to Mr . Temple who is
facing the economic realities of the destruction of a cattle herd that took years to
build, especially when the location at which the h e contracted Trich canno t yet
rd
be accurately determined. 11
Even if the impoundment is subsequently determined to be unlawful, Mr.
Temple will have lost not only those cattl e but also a offspring they could have
ny
generated and will receive abnormally low recompense due to the Trich
infestation.

The legal and economic consequences fr
om the sale of the cattle will

fall immediately on Mr. Temple, not months or years later after the adjudication
of a subsequent damages claim.

See State of S . D . v. Andrus, 6 1 4 F.2d 1 1 9 0 ,

1 1 9 5 n . 1 (8th Cir. 1 980) (citing McKart v . United States, 395 U . S . 1 85 ( 1 969)
( " he doctrine of exhaustion of administrative remedies is not a strict
T
jurisdictional requirement, but rather a fl
exible concept which must be tailored
to the circumstances of the particular case .") .
Notwithstanding Mr. Temple's subsequent legal remedy challenging the
validity of the BIA's d a
mage calculation, under the unique facts of this case, the

llCounsel for Mr. Her Many Horses asserts Mr. Temple's herd contracted
Trich prior to their impoundment, while counsel for Mr. Temple asserts the cattle
contracted Trich after impoundment. Counsel for Mr. Temple also points out
that the BIA illegally exported the cattle to Nebraska by failing to follow the
Nebraska Trich import requirements . (HE 8) . Regardless, approximately 1 07
of th e 1 27 cattle identified in Mr. Her Many Horses' disposition plan will be
marketed and sold at significantly reduced prices due to the Trich infestation.
The court also received testimony that because the cattle have been in Nebraska
for over 30 days, only certain of the cattle - specific purposes, namely
for
entering the human food chain can be brought back into the state of South
Dakota.
25

sale of Mr. Temple's impounded cattle marks the culmination of the BIA's
impoundment proceedings.

The result of which is Mr. Temple no longer owning

the livestock and, in this case, many of the livestock being slaughtered .

Mr. Her

Many Ho r
ses' actions in impounding Mr. Temple's livestock constitute a final
agency action permitting judicial review.

See Jones, 400 F.2d at 390 (granting

judicial review following the impoundment of livestock) .
The rationale underlying administrative exhaustion favors the court's
review of Mr. Temple's impoun d
ment claims.

Should Mr. Her Many Horses or

the Tribal Courts subsequently determine Mr. Temple's cattle were wrongfully
impounded, the BIA's ability to correct its mistake is necessarily limited as the
cattle already will have been sold or slaughtered.
F.3d at 974.

Friends of the Norbeck, 66 1

To the extent ancillary litigation can be avoided, efficiency also

favors addressing Mr. Temple's impoundment claims prior to the sale of the
cattle.

Id.; cf. Coomes, 4 1 4 F. Supp. at 988 (finding the BIA's decision to be final

despite plaintiffs not having fully exhausted their administrative remedies) .
The court finds it is vested with subject matter jurisdiction pursuant to
28 U . S . C . § 1 33 1 to adjudicate Mr. Temple's AP claim stemming fr
A
om the
impoundment of his cattle . 12 See Goodface v. Grassrope, 708 F.2d 335, 338
(8th Cir. 1 983) (holding § 1 33 1 " onfers general jurisdiction on federal courts to
c
review federal agency actions subject only to preclusion-of - eview statutes.
r

We

12
The court notes Mr. Her Many Horses stipulated that jurisdiction exists
under § 1 33 1 . Because the court determined subject matter jurisdiction exists
under § 1 33 1 , it need not examine the issue of subject matter jurisdiction under
Mr. Temple's other asserted bases, 28 U . S . C . §§ 1 36 1 and 220 1 -02 .
26

k n of n statute precludi n judicial review of BIA actio n . . . . ) (i n n
ow
o
g
s
ter al
"

quotatio nmarks omitted) ; see also Coomes, 4 1 4 F . Supp. at 983 .

The court

de n Mr. Her Ma n Horses' Rule 1 2 (b) ( l ) motio nto dismiss to t exte n it
ies
y
he
t
seeks to dismiss Mr. Temple's Fifth Ame n
dme n due process claims a n AP
t
d
A
claim relati n to the impou n
g
dme n of his livestock.
t
Havi n determi n the defe n n waived sovereig nimmu n
g
ed
da t
ity, the court
n
eed n a n
ot
alyze whether Mr. Her Ma n H
y orses' actio n co n
s
stitute ultra vires
co n
duct such that his actio n would be excepted fr
s
om the protectio nof sovereig n
immu n .
ity

See, e .g ., Muirhead v. Mecham, 427 F.3d 1 4 , 1 8 ( 1 st Cir . 2 005) (The

court first co n
sidered whether there had bee na waiver of sovereig nimmu n
ity
before a n
alyzi n whether there was a nexceptio nto the sovereig nimmu n
g
ity
90
i g
e
doctri n . ) ; see also L
e
arso n 337 U . S . at 689 - (outli n n the test to determi n
,
whether a federal o ffi
cer's actio n are excepted from the protectio nof sovereig n
s
immu n ; Joh n nv. Mathews, 539 F.2d 1 1 1 1 , 1 1 24 (8th Cir. 1 976) (same) .
ity)
so
The court n
ext exami n the merits of Mr. Temple's impou n
es
dme n claims i nlight
t
of his motio nfor a TRO .
TRO CONCLUSIONS OF LAW

A prelimi n
ary i n n
ju ctio nis a nextraordi n
ary remedy, a n the burde nis o n
d
the mova n to show relief should issue.
t

ewis, 346 F.3d 84 1 ,
Watki n I n . v. L
s c

844 (8t h Cir. 2003) (citatio n omitted) .
s

The district court has sou n discretion
d

to gra n or de n such relief.
t
y

Dataphase Systems, I n . v. C LSystems, I n . , 640
c
c

F.2d 1 09 , 1 1 4 n8 (8th Cir. 1 98 1 ) (en bane).
.

27

Whe nruli n o na motio nfor a
g

temporary restraining order or preliminary injunction the court must consider:
" 1 ) the threat of irreparable harm to the moving party; (2) the balance of this
(
harm with any injury a preliminary injunction would inflict on other parties;
(3) the likelihood of success on the merits; and (4) the public interest."

P
lanned

P
arenthood Minnesota, N. Dakota, S . Dakota v. Daugaard, 799 F. Supp. 2d
1 048, 1 053 (D . S . D . 2 0 1 1 ) (citing Dataphase, 640 F. 2d at 1 1 3) .
"
[W]hen weighing these factors to determine whether the extraordinary
relief of a preliminary injunction should be granted - single factor is in itself
no
dispositive. "

National Wildlife Federation v. Harvey, 440 F. Supp. 2d 940, 958

(E. D . Ark. 2 0
06) (citing Calvin Klein Cosmetics v. P
arfums de Coeur, L . , 824
td
F.2d 665, 667 (8th Cir. 1 987) ) .

"A o f the factors must be considered to
ll

determine whether the balance weighs towa r granting the injunction."
ds
National Wildlife Federation, 440 F. Supp. 2d at 9 58 (citing Dakota Industries,
Inc. v. Dakota Sportswear, Inc . , 988 F.2d 6 1 , 6 4 (8th Cir. 1 993) ) .

I n deciding

whether to grant a preliminary injunction, 'likelihood of success on the merits is
most significant. ' "

Minnesota Ass'n of Nurse Anesthetists v. Uni ty Hosp. , 59

F.3d 80, 83 (8th Cir. 1 995) (quoting S & M Constructors, Inc . v. Foley Co., 959
F.2d 97, 98 (8th Cir.) , cert. denied, 506 U.S. 863 ( 1 992)); see also Chicago
T
Stadium Corp. v. Scallen, 530 F.2d 204, 206 (8th Cir. 1976) ( " he two most
critical factors for a district court to consider in determining whether to grant a
preliminary injunction are ( 1 ) the probability that plaintiff will succeed on the
merits and (2) whether the plaintiff will suffer irreparable harm if an injunction is

28

not granted.") .

" plaintiff is required to make only a prima facie showing that
A

there has been an invasion of its rights and that a preliminary injunction is
essential to the assertion and preservation of those rights. "

L
ivestock Mktg.

Ass'n v. U . S . Dep't of Agric. , 1 32 F . Supp. 2 d 8 1 7, 824 (D . S . D . 200 1 ) (citations
omitted) .
I.

The court addresses each factor separately.

Likelihood of Success on the Merits
A.

Appropriate Standard

Mr. Temple seeks to enjoin the actions of Mr. Her Many Horses which were
carried out pursuant to the BIA's regulatory procedure found in 25 CFR
§§ 1 66 . 800 - 1 9 .
8

A party seeking to enjoin government action based on a

presumptively reasoned democratic process must make a threshold showing
that it is "ikely to prevail on the merits ."
l

P
lanned P
arenthood, 530 F.3d at 733 .

The Eighth Circuit reasoned this " ore rigorous standard '
m
reflects the idea that
governmental policies implemented through legislation or regulations developed
through presumptively reasoned democratic processes are entitled to a higher
degree of deference and should not be enjoined lightly. ' " 1 3 Id. at 732 (quoting
Able v. United States, 44 F.3d 1 28 , . 1 3 1 (2d Cir. 1 995) (per curiam) .
arenthood,
After noting that only a state statute was before it in P
lanned P
the Eighth Circuit endorsed the Second Circuit's analysis in determining " o
t
what extent the challenged action represents '
the full play of the democratic
1 3The P
lanned P
arenthood court noted that district courts should employ
" he familiar '
t
fair chance of prevailing' test where a preliminary injunction is
sought to enjoin something other than government action based on
presumptively reasoned democratic processes ." Id.
29

process[ , ]' " in cases where a preliminary injunction is sought to enjoin federal
administrative action .

Id. at n.6. (quoting Able, 44 F.3d at 1 3 1 -32) .

In Able,

the Second Circuit determined the legislation implementing the Department of
Defense's "
Don't Ask, Don't Tell" policy was in the public interest and a suit
seeking to enjoin the resulting investigations and discharge proceedings required
plaintiffs to satisfy the higher likelihood of success standard.
at 1 30-33 .

See Able, 44 F.3d

The Second Circuit reasoned:

[W]here the moving party seeks to stay government action taken in
the public interest pursuant to a statutory or regulatory scheme, the
district
court
should
not
apply
the
less
rigorous
fair-ground-for-litigation standard and should not grant the
injunction unless the moving party establishes, along with
irreparable injury, a likelihood that he will succeed on the merits of
his claim.
Id. at 1 3 1 (internal quotation marks omitted) (quoting P
laza Health L
aboratories,
erales, 878 F.2d 577, 580 (2d Cir. 1989) .
Inc . v. P
The Able court concluded:
[W]here the full play of the democratic process involving both the
legislative and executive branches has produced a policy in the
name of the public interest embodied in a statute and implementing
regulations, [its] role in reviewing that determination for the purpose
of deciding whether to apply the "
serious questions" or "ikelihood of
l
success" standard is severely limited ."
Id.
The administrative action Mr. Temple seeks to enjoin involved the full play
of the democratic process, and he is required to satisfy the more rigorous "ikely
l
to prevail on the merits" standard.

Congress delegated authority to the

Secretary to regulate trespasses on Indian agricultural lands.
30

2 5 U . S . C . § 37 1 3 .

The purpose of the statute is for the United States to carry out its trust
responsibility in the management of l
ndian lands for the benefit of l
ndian peoples
and for the preservation of Indian agricultural lands.

See 25 U . S . C . §§ 370 1 -02 .

The trespass regulations at issue were properly enacted to implement this grant
The actions challenged by Mr. Temple received " he full play of the
t

of authority.

democratic process" and his motion to enjoin those actions requires him to show
that he is likely to prevail on the merits of his claims.
B.

Fif
th Amendment Due Process Claims

Mr. Temple asserts the impoundment of his cattle violates his Fifth
Amendment due process rights.

"
[D]ue process . . . is not a technical conception

with a fixed content unrelated to time, place and circumstances," but rather is
"
flexible and calls for such procedural protections as the particular situation
demands ."

Mathews v. Eldridge, 424 U . S . 3 1 9 , 334 ( 1 976) (internal quotation

marks and citations omitted) .

In determining whether Mr. Temple's due process

rights were violated, the court weighs ( 1 ) " he importance of the private interest
t
and the length or finality of the deprivation" ; (2) " he likelihood of governmental
t
error"; and (3) " he magnitude of the governmental interests involved ."
t

L
ogan v.

Zimmerman Brush Co., 455 U.S. 422, 434 ( 1 982) ; see also Mathews, 424 U . S . at
335.

The court is mindful that " he root requirement of the Due P
t
rocess Clause"

is that " individual be given an opportunity fo a hearing be
an
r
fore he is deprived
of any significant property interest."

Cleveland Bd. of Educ. v. L
oudermill, 4 70

31

U . S . 532, 542 ( 1 985) (internal quotation marks and citations omitted; emphasis
in original) .
However, a pre-deprivation hearing is not required in all circumstances .
See Zinermon v. Burch, 494 U . S . 1 1 3 , 1 28 ( 1 990) ( " n some circumstances,
I
however, the Court has held that a statutory provision for a postdeprivation [sic ]
hearing, or a common-law tort remedy for erroneous deprivation, satisfies due
process.") .

Mr. Temple failed to demonstrate he is likely to prevail on the merits

of his claim that the BIA impoundment regulations violate his due process rights.
Although Mr. Temple has a substantial interest in maintaining his property
interest in the impounded cattle, especially because they are income- generating
animals, the risk of governmental error is low.

See Klump v. Babbitt, 1 08 F.3d

1 385 (9th Cir. 1 997) .1 4
The BIA impoundment regulations require a detailed trespass notice be
provided to the alleged trespasser.

25 CFR § 1 66 . 803 .

A person who receives a

trespass notice is allowed to contact the BIA and explain why the notice is in
error.

Id. § 1 66.804 .

The alleged trespasser is warned of the actions the BIA
I

may take and under what conditions those actions will be taken.
§§ 1 66 . 806-807.

2 5 CFR

The trespasser is notified of the BIA's intent to impound the

1 4Although Klum pis an unpublished case, the Ninth Circuit recently
reaffirmed the due process analysis set forth in Klum p See Yowell v. Abbey,
.
W
532 F. App'x 708, 7 1 0 (9th Cir. 2 0 1 3) , cert. denied, 1 3 5 S . Ct. 48 (20 1 4) ( " e
conclude, for the reasons we have previously set forth, that the Bureau of L
and
Management ( " L
B M") was not required to provide a pre-deprivation hearing.") .
M
The Klum pcourt's analysis of the BL 's impoundment regulations for
trespassing livestock is directly on point with the issues before this court.
32

livestock.

Id. § 1 66.808.

The trespasser is given notice of the BIA's sale of the

impounded livestock and how the property can be redeemed prior to the public
sale.

Id. § 1 66 . 809-8 1 0 .
Courts have fr
equently upheld the validity of similar impoundment

regulations .

The Eighth Circuit previously held the Secretary o f Agriculture was

vested with the implied authority to promulgate impoundment regulations for
the United States Forest Service.

Jones, 400 F.2d at 388 .

In Jones, the court

held the Secretary of Agriculture had the authority to impound plaintiffs '
razorback hogs which were caught foraging in the Ozark National Forest.
385, 388-89 .

Id. at

The Eighth Circuit reasoned the right to enjoin for trespass was

implied because the "the United States, as a proprietor, has all the remedies
available to it that a landowner has at common law."

Id. at 388.

The

impoundment regulations at issue in Jones, 36 CFR § 26 1 . 1 3 , 15 employ a
regulatory procedure for the impoundment and disposal of unauthorized
livestock that is similar to the impoundment regulations at issue in this case .
The Fifth Circuit reached the same conclusion.
States, 48 1 F.2d 6 1 5, 6 1 7 (5th Cir. 1 973) .

See McVay v. United

In McVay, the Forest Service

impounded nine of plainti ff cattle which were found trespassing on the
s
Kisatchie National Forest.

Id. at 6 1 6.

P
laintiff asserted the regulations 16

15Although Jones references regulations contained in 36 CFR § 26 1 . 1 3 , the
applicable regulations have subsequently been reorganized under 36 CFR
§ 262 . 1 0 .
16The applicable regulation is 36 CFR § 262 . 1 0 .
33

under which the cattle were impounded violated his Fifth Amendment due
process rights because no provision was made for notice and a hearing prior to
the impoundment or for the opportunity to contest the validity of the claimed
expenses.

Id.

The Fifth Circuit, citing Jones, determined the Secretary of

Agriculture was authorized by Congress " o prevent trespassers and otherwise
t
regulate the use and occupancy of property in the public domain, including the
National Forests," and the regulations did not violate plaintiffs Fifth Amendment
due process rights .

Id. at 6 1 7 .

The Ninth Circuit reached the same conclusion in the context o f B L
M
regulations governing the impoundment and disposition of trespassing
livestock. 17 See, e.g. , Bedke v. Salazar, 540 F. App'x 60 1 (9th Cir. 20 1 3) , cert.
denied sub nom . Bedke v. Cassia Cn ty. Sheriffs Dep't, 1 34 S. Ct. 2300 (20 1 4) .
The Ninth Circuit went so far as to note "
[t]he impoundment of cattle pursuant to
[the B L 's] regulations has never been held invalid."
M

Id. at 602 .

The B L 's
M

regulations governing the impoundment and disposition of trespassing livestock
are similar to those employed by the BIA, namely in that neither provides for a
pre-impoundment hearing.

Compare 43 CFR §§ 4 1 50. 1 to .4-5, with 2 5 CFR

§§ 1 66 . 800-8 1 9 ; see also Klum p 1 08 F.3d at 1 385. 1 8
,

17The BL , like the BIA, is a subdivision of the Department of the Interior.
M
1 8Buttressing the court's denial of defendant's motion to dismiss Mr.
Temple's impoundment claims is the fact that neither the Jones, Bedke, Klump,
nor McVay courts dismissed the plaintiffs' complaints challenging the agencies '
impoundment o f livestock fo r lack of subject matter jurisdiction.

34

The BIA has a substantial interest and a trust responsibility to preserve
and protect Indian agricultural land.

Klum p 1 08 F.3d at 1 385.
,

In light of the

trespasser's opportunity to dispute the trespass, the multiple notices, the
trespasser's opportunity to redeem the livestock, and the BIA's substantial
interest in preserving Indian agricultural land, the court finds Mr. Temple failed
to demonstrate he is likely to succeed on the merits of his Fifth Amendment due
process claim relating to the BIA's impoundment regulations. 1 9
Mr. Temple asserts because the BIA failed to provide him with adequate
notice under the regulations , his due process rights were violated.

" he
T

fundamental requisite of due process of law is the opportunity to be heard ."
Mullane v. Cent. Hanover Bank & Trust Co., 339 U . S . 306, 3 1 4 ( 1 950) (internal
quotation marks omitted) (quoting Grannis v. Ordean, 234 U . S . 385, 394 ( 1 9 1 4) ) .
" o be constitutionally adequate, due process requires 'notice reasonably
T
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their
objections. "'

United States v. Colon, 993 F. Supp. 4 2 , 44 (D .P R. 1 998) (quoting
.

United States v. Giraldo, 45 F . 3d 509 , 5 1 1 ( 1 st Cir. 1 995) (citing Mullane, 339
U.S. at 306) ) .
19
Mr. Temple also failed to demonstrate he is likely to succeed on his
arguments relating to his ability to appeal the BIA's trespass determination as
25 CFR § 1 66. 803 (c) explicitly exempts BIA trespass determinations from appeal.
The impoundment regulations do not require Mr. Temple be given a notice of
appeal . See 25 CFR §§ 1 66. 800-8 1 9 . Mr. Temple retains the ability to pursue
a subsequent administrative appeal and legal remedy challenging the costs,
penalties and damage calculations associated with the redemption of the
livestock.
35

T h BIA sent letters by certified mail to Mr. Temple's h
e
ome address on
April 27, May 4, and May 5, 20 1 5, info
rming h
im h livestock on range units 1 69
is
and 50 1 were in trespass.

(HE 2 & 3).

T h April 27 letters informed Mr.
e

Temple h must remove t h trespassing cattle " r s h w h t h
e
e
o
ow
y ese livestock are
not trespassing [on] t h trust property."
is

(HE 2 at pp. 1 , 5) .

T h May 4 and 5
e

letters informed Mr. Temple h cattle were in trespass, h h five days to
is
e ad
remove t h
em, and t h no furt h notices would follow.
at
er

(HE 3 at pp. 2 , 4) .

On

July 2 , 20 1 5, Mr. Her Many Horses responded to a letter from Mr. Bielecki and
confirmed t h BIA considered Mr. Temple's livestock to be in trespass, warned
e
t h BIA would proceed wit hits impoundment procedures and provided Mr.
e
Temple wit hanot h opportunity to remove h cattle .
er
is

On August 1 2 , 20 1 5 , Mr.

Weston informed Mr. Bielecki via email t h Mr. Temple h t h
at
ad ree days to remove
h cattle before t h BIA would begin impoundment.
is
e

Mr. Temple's cattle

remained on range units 1 69 and 50 1 .
Mr. Temple's livestock ultimately were impounded on August 1 9 , 20 1 5 .
On August 2 1 , 20 1 5 , a letter informing Mr. Temple of t h impoundment was sent
e
by certified mail to Mr. Temple's h
ome address.

(Docket 1 4-7 at p . 1 ) .

t h August 2 1 impoundment letter was h
e
and-delivered to J:I olly Wilson.
1 4-7 at p. 7) .

A copy of
(Docket

A copy of t h August 2 1 impoundment letter was also sent by
e

regular mail to Terry P h
ec ota, Mr. Temple's attorney in t h action, and to Mr.
is
Bielecki.

(Docket 1 2 at p. 1 6) .

36

Mr. Temple's longstanding disagreement with the BIA and tribal officials
over his rights to grazing permits for range units 1 69 and 50 1 was apparent at
the TRO hearing.

Mr. Her Many Horses testified he believed Mr. Temple's cattle

had been in trespass since 20 1 3, the year in which Donald Buffington's grazing
permits to those range units were signed.

Mr. Temple, through Mr. Bielecki,

filed a claim before the Interior Board of Indian Appeal ( "BIA") challenging the
I
0
allocation of the grazing permits to range units 1 69 and 50 1 . 2
at p. 1 .

See Docket 1 5- 2

In his June 5 letter, Mr. Bielecki acknowledged several notices of

trespass that were issued against Mr. Temple and attributed the trespasses to
Mr. Temple's lack of fencing to isolate his livestock on his individually allotted
land.

Id. at 2 .

Mr. Bielecki requested Mr. Her Many Horses " xtend further
e

patience" while Mr. Temple isolated his livestock to his allotted land.

Id.

Mr. Temple cannot now claim to be surprised by the impoundment of his
cattle.

The BIA provided Mr. Temple with constitutionally adequate notice of the

impoundment of his livestock.

Mr. Temple failed to demonstrate he is likely to

succeed on the merits of his due process claim relating to a lack of notice.
C.

APA Claim

Mr. Temple asserts the impoundment of his livestock was arbitrary or
capricious.
§ 706(2 ) .

The court reviews Mr. Temple's administrative claim under 5 U . S . C .
" ection 706(2)(A) requires a finding that the actual choice made was
S

0
2 Mr. Temple voluntarily dismissed this action (IBIA Docket No . 1 3- 1 49) to
pursue his claims in Tribal Court, in part, because the contested issues involved
matters pertaining to the Oglala Sioux Tribe's constitution and tribal ordinance s .
.
Id .
37

not 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law. ' "

Citizens to Pres. Overton Park, Inc . v. Volpe, 40 1 U . S . 402, 4 1 6

( 1 97 1 ) , abrogated on other grounds by Califano, 430 U . S . at 99 (quoting 5 U . S . C .
§ 706(2) (A) ) .

"To make this finding the court must consider whether the

decision was based on a consideration of the relevant factors and whether there
has been a clear error of judgment."

Id. (citations omitted) .

"Although this

inquiry into the facts is to be searching and careful, the ultimate standard of
review 1s a narrow one.

The court is not empowered to substitute its judgment

for that of the agency."

Id.

"The Eighth Circuit Court of Appeals has characterized the test as
requir[ing] that the agency decision be supported by a rational basis."

Coomes,

4 1 4 F. Supp. at 989 (citing First National Bank of Fayetteville v. Smith, 508 F.2d
1 37 1 , 1 376 (8th Cir. 1 974)) .

"The party challenging the agency decision must

show that the decision constitutes 'willful and unreasoning action, without
consideration and in disregard of the facts or circumstances of the case . ' "
(quoting First National Bank of Fayetteville, 508 F.2d at 1 376) .

Id.

Based on the

prior analysis and in light of the many warnings Mr. Temple received, the court
cannot characterize Mr. Her M any Horses' impoundment actions as willful and
unreasoning or unsupported by a rational basis .

Mr. Temple failed to

demonstrate he is likely to succeed on the merits of his APA claim.

38

II.

The Threat o f Irreparable Harm

It is well established that a party is entitled to equitable relief only if there
is no adequate remedy at law.
374, 38 1 ( 1 992) .

Morales v. Trans World Airlines, Inc . , 504 U . S .

The district court should view the irreparable harm factor as

weighing against the issuance of an injunction if there is an adequate remedy at
law and the harm can be remedied through money damages.

Adam-Mellang v.

Apartment Search, Inc . , 96 F.3d 297, 300 (8th Cir. 1 996) (finding preliminary
injunctive relief unavailable where a plaintiff had "an adequate remedy at law,
namely, the damages and other relief to which she will be entitled if she
prevails") .

Failure to show irreparable harm is an independently sufficient

ground upon which to deny a TRO or preliminary injunction.

See id . at 299;

Gelco Corp. v. Coniston Partners, 8 1 1 F.2d 4 1 4 (8th Cir. 1 987) .

"In order to

demonstrate irreparable harm, a party must show that the harm is certain and
great and of such imminence that there is a clear and present need for equitable
relief."

Iowa Utilities Bd. v. F. C . C . , 1 09 F.3d 4 1 8, 4 2 5 (8th Cir. 1 996) .

"The basis of injunctive relief in the federal courts has always been
irreparable harm and inadequacy of legal remedies."

Bandag, Inc . v. Jack's Tire

& Oil, Inc . , 1 90 F.3d 924, 926 (8th Cir. 1 999) (quoting Beacon Theatres, Inc. v.
Westover, 359 U . S . 500, 506-07 ( 1 9 59)) .

When there is an adequate remedy at

law, a preliminary injunction is not appropriate .

Modern Computer Sys., Inc. v.

Modern Banking Sys., Inc . , 87 1 F.2d 734, 738 (8th Cir. 1 989) .

"Once a court

determines that the movant has failed to show irreparable harm absent an

39

injunction, the inquiry is finished and the denial of the injunctive request is
warranted."

Gelco Corporation, 8 1 1 F.2d at 420.

"Courts have . . . found irreparable harm where a party is .threatened with
the loss of a business and customer goodwill. "

Nokota Horse Conservancy, Inc.

v. Bernhardt, 666 F. Supp. 2d 1 07 3 , 1 080 (D . N . D . 2 009) (citing Tom Doherty
Assocs., Inc . v. Saban Entm't, Inc . , 60 F.3d 27, 37 (2d Cir. 1 995); Ryko Mfg. Co.
v. Eden Servs. , 759 F. 2d 67 1 , 673 (8th Cir. 1 985) (affirming district court's
finding that irreparable harm was shown and injunction was warranted when a
distributor would possibly be forced out of business) ) ; Semmes Motors, Inc. v.
Ford Motor Co . , 429 F.2d 1 1 97, 1 205 (2d Cir. 1 970) (internal quotation marks
omitted) (" [T]he right to continue a business in which [plaintiffs] had engaged for
twenty years and into which his son had recently entered is not measurable
entirely in monetary terms; [plaintiffs] want to sell automobiles, not to live on the
income from a damages award . . . . Moreover, they want to continue living . . . . [A]
judgment for damages acquired years after his franchise has been taken away
and his business obliterated is small consolation.") .
The parties do not dispute Mr. Temple will be injured if approximately 1 1 6
of his cattle are sold .

(Docket 34- 1 ) .

However, except for Mr. Temple's

conclusory assertion that " [i]f [his] cattle are sold [his] entire livelihood will be
threatened.

[He] is a rancher and depend[s] on the cattle to make a living. The

sale of [his] cattle will likely lead to [his] financial ruin," (Docket 1 1 at p . 2) , the
court received no evidence demonstrating Mr. Temple would be irreparably

40

injured as a result of the impoundment and sale of the cattle.

For instance, the

court received no evidence indicating how many cattle remained in Mr. Temple's
herd following the impoundment, what proportion of Mr. Temple's herd would be
sold, or any measureable evidence indicating Mr. Temple's ranching operation
would be unable to continue as a going-concern business.

Conversely, the

court received evidence that approximately another 248 of Mr. Temple's cows
and 2 bulls, whether or not in trespass, remained on range units 1 69 and 50 1
alone .

(HE 2 2 at p. 1 ) .

The court also received evidence that Mr. Temple has

cattle on range units 506, 509, 5 1 2 , 5 1 4 and 5 1 6.

(HE 1 2 ) .

A monetary remedy challenging the BIA's damage calculation i s also
available to Mr. Temple as he retains the ability to redeem his cattle and pursue
an action against the BIA.
6 17.

See 25 CFR § 1 66 . 8 1 0; see also McVay, 48 1 F.2d at

Depending o n Mr. Temple's specific allegations and the amount o f any

damage claim, he may be able to pursue an action under 28 U . S . C . §§ 1 346(a) (2 ) ,
(b) or 1 49 1 ) .

I n light of his available legal remedies, Mr. Temple failed to

demonstrate an irreparable injury necessitating injunctive relief.
III.

The Balance of Harm

" [T]he balance of harm analysis examines the harm of granting or denying
the injunction upon both of the parties to the dispute and upon other interested
parties, including the public."

Uncle B's Bakery, Inc. v. O 'Rourke , 920 F. Supp .

1 405, 1 436 (N . D . Iowa 1 996) (citing Dataphase Systems, Inc . , 640 F.2d at 1 1 4) .
In balancing the equities, no single factor is determinative.

41

The likelihood that

plaintiff ultimately will prevail is meaningless in isolation .

Every case must be

examined in the context of the relative injuries to the parties and the public.

If

the chance of irreparable injury to the movant should relief be denied is
outweighed by the likely injury to other parties should the injunction be granted ,
the moving party faces a heavy burden in demonstrating that he i s likely to
prevail on the merits.

Conversely, where the movant has raised a substantial

question and the equities are otherwise strongly in his favor, the showing of
success on the merits can be less.

See Dataphase, 640 F.2d at 1 1 3 .

"Stated another way, the court balances the harms that would result in the
following scenarios : ( 1 ) if the court improperly denied the preliminary injunction;
and (2) if the court improperly granted the preliminary injunction. "

B . K. ex rel.

Kroupa v. 4-H, 877 F. Supp. 2d 804 , 822 (D . S . D . 20 1 2) , affd sub nom. Kroupa v .
Nielsen, 73 1 F.3d 8 1 3 (8th Cir. 20 1 3) (citing Scotts C o . v. United Indus. Corp. ,
3 1 5 F.3d 264 , 284 (4th Cir. 2002) (" [W]hile cases frequently speak in the
short-hand of considering the harm to the plaintiff if the injunction is denied and
the harm to the defendant if the injunction is granted, the real issue in this
regard is the degree of harm that will be suffered by the plaintiff or the defendant
if the injunction is improperly granted or denied [ . ]") .
The balance of the harm analysis weighs in favor of denying Mr. Temple's
request for injunctive relief.

If the court was to improperly deny Mr. Temple's

request for an injunction, his cattle would be sold and Mr. Temple would be
financially injured.

However, Mr. Temple would still have a legal remedy to

42

pursue damages against the BIA for certain injuries.

Conversely, if the court

improperly granted Mr. Temple's request for an injunction or granted injunctive
relief based on Mr. Temple's allegations concerning the tribe's allocation of
grazing permits, the court would insert itself into matters currently pending in
Tribal Court and impede the BIA's enforcement of currently valid grazing
permits.

In light of Mr. Temple's alleged continuing trespass (Dockets 24- 1

&

24-2 ; and HE 22) , Mr. Her Many Horses would be charged with the unenviable
task of deciding whether to enforce Donald Buffington's grazing permit to land
held in trust by the BIA or to comply with this court's order.

See HE 1 .

Mr. Her Many Horses would be similarly hamstrung in his ability to meet
the BIA's fiduciary obligations owed to approximately 392 other people for whom
the land is held in trust.

See Docket 2 1 at p. 1 9 .

The court received evidence

that Mr. Temple consistently overstocked range units 1 69 and 50 1 for the past
several years without a grazing permit to either.

(HE 23

&

24) .

As a result, the

yearlong carrying capacity for range unit 50 1 was reduced from 1 1 7 head to 97
head, (HE 23 at p. 2 ) , and the yearlong carrying capacity for range unit 1 69 was
reduced from 30 head to 23 head.

(HE 24 at p. 2) .

Furthermore, in light of

alleged ongoing trespass of Mr. Temple's cattle, Mr. Her Many Horses' ability to
prevent the spread of Trich to neighboring cattle herds would be significantly
impaired.

The court finds the balance of the harms factor weighs in favor of

denying Mr. Temple's request for injunctive relief.

43

IV.

The Public Interest

This evaluation requires a "flexible consideration" of all four factors .
Planned Parenthood, 530 F.3d at 729 (internal citation omitted) ,

Under

Dataphase the district court should consider "the injury that granting the
640 F.2d at 1 1 3 .

injunction will inflict on other parties."

The public interest in

this case is the BIA's obligation to preserve Indian agricultural lands.
Temple has not shown a likelihood of success on the merits.

Mr.

He has an

available legal remedy, and the alleged pre-impoundment conduct underlying his
complaint must first be resolved in Tribal Court.

The court finds the public

interest factor weighs in favor of denying Mr. Temple's request for injunctive
relief.
All four Dataphase factors weigh in favor of denying Mr. Temple's request
for injunctive relief.

The court denies Mr. Temple's motion for a TRO .
MOTION TO SELL THE CATTLE

Having denied Mr. Temple's motion for a TRO , the defendant can resume
the standard processing of Mr. Temple's cattle in accord with the applicable BIA
regulations.

The court expresses no opinion on the legality of the defendant's

proposed sale plan as this involves the resolution claims not presently before the
court.

However, the court reminds the defendant of the BIA's obligation to sell

the impounded livestock by public sale to the highest bidder in accord with
25 CFR § 1 66 . 8 1 1 .

Mr. Her Many Horses' motion to sell the cattle is denied as

moot.
Based on the above analysis, it is

44

ORDERED that Mr. Her Many Horses' Rule 1 2 (b) ( l ) motion to dismiss
(Docket 32) is granted in part and denied in part.
·

Mr. Her Many Horses' motion

to dismiss Mr. Temple's Fifth Amendment due process claims and APA claim
relating to the impoundment of Mr. Temple's cattle is denied.

Mr. Her M any

Horses' motion to dismiss Mr. Temple's claims relating to Mr. Her Many Horses'
pre-impoundment conduct and Mr. Her Many Horses ' assessment of penalties
and costs and damage calculation is granted .
IT IS FURTHER ORDERED that Mr. Temple's claims relating to Mr. Her
Many Horses' pre-impoundment conduct and assessment of penalties and costs
and damage calculation are dismissed without prejudice.
IT IS FURTHER ORDERED that Mr. Temple's motion for a temporary
restraining order (Docket 5) is denied.
IT IS FURTHER ORDERED that Mr. Temple's motion to extend (Docket 35)
is denied as moot.
IT IS FURTHER ORDERED that Mr. Her Many Horses' motion requesting
permission to sell the impounded cattle (Docket 43) is denied as moot.
Dated February 1 9 , 20 1 6.

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45