PRAIRIE BAND OF POTAWATOMI INDIANS v. KARLA PIERCE
FILED
United States Court of Appeals
Tenth Circuit
JUN 25 2001
PATRICK FISHER
Clerk PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
PRAIRIE BAND OF POTAWATOMI INDIANS,
Plaintiff_Appellee,
v. No. 99_3324
KARLA PIERCE, Secretary of Revenue, State of Kansas; SHEILA WALKER, Director of Vehicles, State of Kansas; and DON BROWNLEE, Superintendent, Kansas Highway Patrol,
Defendants_Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 99_CV_4136_DES)
John Michael Hale, Kansas Department of Revenue, Topeka, Kansas (M.J.
Willoughby, Office of the Attorney General, Topeka, Kansas; Richard L. Cram,
Kansas Department of Revenue, Topeka, Kansas, with him on the briefs) for the
Defendants_Appellants.
David Prager III, General Counsel, Prairie Band of Potawatomi Indians, Mayetta,
Kansas, for the Plaintiff_Appellee.
Before EBEL, HENRY, Circuit Judges, and WEINSHIENK, District Judge.(1)
HENRY, Circuit Judge.
Seeking to have its motor vehicle registrations and titles recognized by the
state of Kansas, the Prairie Band of Potawatomi Indians, a Kansas Indian tribe,
filed suit against various Kansas state officials pursuant to the Indian Commerce
Clause, the Kansas Act for Admission, and other federal law. During the
proceedings below, the district court issued a temporary restraining order
("TRO") and thereafter a preliminary injunction, each of which prohibited further
enforcement of the state motor vehicle registration and titling laws with respect
to vehicles registered and titled by the tribe. The state officials then filed this
interlocutory appeal, challenging the preliminary injunction on various grounds.
We affirm for the reasons set forth below.
I. BACKGROUND
(1) 1 Honorable Zita L. Weinshienk, United States District Judge for the District of
Colorado, sitting by designation.
The Prairie Band of Potawatomi Indians (the "tribe") is a federally
recognized Indian tribe with a reservation located in Jackson County, Kansas. On
March 16, 1999, as a response to "a significant increase in the amount of motor
vehicle traffic on the reservation," the tribe enacted its own motor vehicle code.
Aplts' App. vol. I, at 16 (Prairie Band Motor Vehicle Code ("PBMVC") Ch. 17_
1). The purpose of the code was "to implement reasonable rules, regulations, and
penalties essential to maintaining a safe transportation system within the [tribal]
jurisdiction." Id.
Under the code, tribal registrations and titles are required for all vehicles
owned by the tribal government and for all vehicles owned by tribal members
who reside on the reservation. See PBMVC § 17_10_1(B). Registration involves
"the act of assigning a registration plate [i.e., a license] and validation sticker(s)
to a vehicle, and to renew the same." Id. § 17_10_2(H). Titling involves, among
other things, proof of ownership. See id. Ch. 17_10 (noting "the issuance of
certificates of title for conveyance of ownership"); see also id. § 17_10_19 to _35
(various tribal statutes on certificates of title). A certificate of title "is a
prerequisite to registration of [a] vehicle." Id. § 17_10_4(D).
Prior to the enactment of the tribal motor vehicle code, the tribe and its
members complied with the motor vehicle code of Kansas. Under the state code,
all vehicles that operate in Kansas are required to have registrations and titles
issued by the state. See Kan. Stat. Ann. § 8_142.(2) Violators may be cited and are
subject to imprisonment and/or a fine. See id.; see also id. § 8_149. Gratefully,
an exception is made for nonresidents. Nonresidents who operate vehicles in
Kansas are not considered violators if they are properly registered and titled in
the state of their residence and if the state of their residence grants reciprocal recognition to the registrations and titles of Kansas. See Kan. Stat. Ann. § 8_
138a.(3)
On April 27, 1999, approximately a month after the enactment of its motor
vehicle code, the tribe issued its first registration and title to a tribal member by
the name of Vestina Nonken. See Aplts' App. vol. I, at 104 (affidavit of David
Danielson, tribal motor vehicle registrar). Having received indications from state
officials that tribal registrations and titles would not be recognized outside the
reservation, the tribe apparently hoped that Ms. Nonken would be cited so that a
challenge could thereby be made to the state motor vehicle registration and titling laws as applied to the tribe and its members. For two months, the tribe asked
various state officials to cite Ms. Nonken, but no citation was ever issued.
Thereafter, during the week of June 28, 1999, the tribe proceeded to issue
more registrations and titles. See id. vol. III, at 8 (counsel for tribe at TRO
hearing) (stating that by June 1999 there were approximately twenty tribal
registrations and titles in use). For more than a month, these registrations and
titles remained unchallenged by the state. It was not until August 7, 1999,
approximately three months after the first registration and title was issued by the
tribe, that a tribal member was finally cited for using a tribal registration and title
outside the reservation, a purported violation of Kan. Stat. Ann. § 8_142. See id.
vol. I, at 158 (citation issued to Joseph P. Rupnick). Two more citations and a
warning ticket were subsequently issued, all during the first two weeks of
September 1999 and all pursuant to § 8_142. See id. at 157, 159, 160 (citations
or warning tickets issued to Willie J. Potts, Nathaniel J. Potts, and Joseph H.
Mattwaoshshe). Of the three citations, two were ultimately dismissed and the
last resolved by payment of a fine. See Aplts' App. vol. III, at 11 (counsel for
tribe at TRO hearing); id. at 103 (counsel for tribe at clarification hearing).
(2) Section 8_142 provides in part:
It shall be unlawful for any person to commit any of the
following acts and except as otherwise provided, violation is subject
to penalties provided in K.S.A. 8_149, and amendments thereto:
First: To operate, or for the owner thereof knowingly to
permit the operation, upon a highway of any vehicle, as defined in
K.S.A. 8_126, and amendments thereto, which is not registered, or
for which a certificate of title has not been issued or which does not
have attached thereto and displayed thereon the license plate or
plates assigned thereto by the division for the current registration
year, including any registration decal required to be affixed to any
such license plate pursuant to K.S.A. 8_134, and amendments
thereto, subject to the exemptions allowed in K.S.A. 8_135, 8_198[,]
and 8_1751a, and amendments thereto.
Second: To display or cause or permit to be displayed, or to
have in possession, any registration receipt, certificate of title,
registration license plate, registration decal, accessible parking
placard or accessible parking identification card knowing the same to
be fictitious or to have been canceled, revoked, suspended or altered.
Kan. Stat. Ann. 8_142.
(3) Section 8_138a states that:
The provisions of this section shall apply only to the
nonresident owner or owners of any motor vehicle constructed and
operated primarily for the transportation of the driver or the driver
and one or more nonpaying passengers. Such nonresident owners,
when duly licensed in the state of residence, are hereby granted the
privilege of operation of any such vehicle within this state to the
extent that reciprocal privileges are granted to residents of this state
by the state of residence of such nonresident owner.
Kan. Stat. Ann. 8_138a. Interestingly, this provision allows for the recognition
of registrations and titles issued by tribes residing outside of Kansas. See State
v. Wakole, 959 P.2d 882, 885_86 (Kan. 1998) (noting that the state of Oklahoma
recognized an Oklahoma tribe's license plates as valid for use on Oklahoma
highways; thus, holding that a vehicle with the Oklahoma tribe's license plate
was "duly licensed" under Kan. Stat. Ann. 8_138a).
On September 14, 1999, the tribe filed a complaint against Karla Pierce,
secretary of revenue for the state of Kansas; Sheila Walker, director of vehicles
for the state of Kansas; and Don Brownlee, superintendent for the Kansas
Highway Patrol, alleging that the state was compelled to grant recognition to
tribal motor vehicle registrations and titles pursuant to the Indian Commerce
Clause, the Kansas Act for Admission, and other federal law. On the same day,
the tribe filed a motion for a TRO and preliminary injunction, asking that the
district court "enjoin the Defendants from enforcing the Kansas motor vehicle
registration and titling laws against the Plaintiff and any persons who operate or
own a vehicle registered and titled under [the] Tribal Code § 17_10_1 et seq."
Aplts' App. vol. I, at 89 (tribe's motion for a TRO and preliminary injunction).
After conducting a hearing, the district court granted the tribe a TRO. In
response, the defendants asked the district court to (1) provide specific findings
of fact to justify the issuance of the TRO, (2) clarify the scope and extent of the
TRO, (3) clarify that the TRO was in effect a preliminary injunction, and (4) stay
the TRO pending appeal. With respect to the first request, the district court
refused, stating that "the record is sufficiently clear as to the basis for the
issuance of the TRO." Id. vol. II, at 138 (district court order, filed Oct. 13,
1999). It did, however, provide some clarification as to the scope and extent of
the TRO, and it also granted the tribe a preliminary injunction. Finally, the
district court rejected the application for stay, noting that "[i]f the court were to
issue the requested stay, the tribal members protected by the injunction would
immediately become vulnerable to the arrests, citations[,] and related legal
matters." Id. at 141 (district court order, filed Oct. 13, 1999).
The defendants subsequently appealed the denial of stay to this court,
arguing that "[t]he district court's order does not preserve but rather changes the
status quo because it frees the tribe to issue as many tribal tags and registrations
to whomever it wishes." Aplts' App. for Stay at 5 (filed Oct. 15, 1999). This
court held in favor of the defendants, granting a stay pending appeal. It
concluded: "[I]t is appropriate to preserve the status quo as it existed prior to the
district court's entry of the injunction pending determination of the issues on
appeal." 10th Cir. Order at 2 (filed Nov. 9, 1999).
Prior to oral argument, the tribe filed a motion with this court, asking that
we dismiss the appeal of the preliminary injunction as moot. See Aple's Mot. to
Vacate Inj. & Dismiss Appeal at 3_4 (filed Dec. 30, 1999) (noting that the tribe
"reduced the number of tribally registered and titled vehicles to the point where
the Nation longer desires to pursue an injunction"). During oral argument,
however, the tribe conceded that the appeal was not moot, and we therefore
address the two major arguments raised by the defendants: (1) that the district
court did not have jurisdiction over the instant case and (2) that the district court
abused its discretion in issuing the preliminary injunction.
A. Jurisdiction
1. Federal Question Jurisdiction
According to the defendants, the district court lacked jurisdiction over the
instant case because the tribe did not raise a "colorable federal claim." Aplts' Br.
at 41. As a preliminary matter, we note that the defendants did not bring this
issue to the attention of the district court during the proceedings below. That
failure, however, does not preclude our review because, "[s]o long as a case is
pending, the issue of federal court jurisdiction may be raised at any stage of the
proceedings either by the parties or by the court on its own motion." Ramey
Constr. Co. v. Apache Tribe of the Mescalero Reservation, 673 F.2d 315, 318
(10th Cir. 1982).
The defendants are correct in noting that a federal claim must be colorable
to establish federal question jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 7
(1976) ("[W]here federal jurisdiction is properly based on a colorable federal
claim, the court has the right to decide all the questions in the case . . . .")
(citation and internal quotation marks omitted); BIW Deceived v. Local S6,
Industrial Union of Marine & Shipbuilding Workers of America, IAMAW, 132
F.3d 824, 832 (1st Cir. 1997) ("As a matter of common practice, a district court
confronted with a question of subject matter jurisdiction reviews a plaintiff's
complaint not to judge the merits, but to determine whether the court has the
authority to proceed. When conducting this inquiry, the court only asks whether
the complaint, on its face, asserts a colorable federal claim.").
But the defendants improperly suggest that a claim is colorable only when
it must succeed on the merits. We are unaware of any case that defines
colorability in such strict terms; indeed, a review of case law demonstrates
otherwise. For example, the First Circuit has defined "colorable" as "`seemingly
valid or genuine,'" BIW, 132 F.3d at 832 n.4 (quoting Webster's New Collegiate
Dictionary 220 (1981)); the Eighth as "not without some merit," Jensen v.
Schweiker, 709 F.2d 1227, 1230 n.2 (8th Cir. 1983); and the Ninth as not
"wholly insubstantial, immaterial, or frivolous." Boettcher v. Secretary of Health
& Hum. Servs., 759 F.2d 719, 722 (9th Cir. 1985).
In this circuit, "colorable" has been similarly ? and generously ? defined.
In Harline v. DEA, 148 F.3d 1199 (10th Cir. 1998), for example, we held that
[t]o determine whether a claim is colorable, it is necessary to
examine its merits. A determination that a claim lacks merit,
however, does not necessarily mean it is so lacking as to fail the
colorable test. A . . . claim . . . is not colorable if it is immaterial
and made solely for the purpose of obtaining jurisdiction or . . . is
wholly insubstantial or frivolous.
Id. at 1203 (internal quotation marks omitted); see also United States v. McAleer,
138 F.3d 852, 857 (10th Cir. 1998) (defining "colorable" as having "some
possible validity").
Given these liberal definitions, we conclude that, in the instant case, the
tribe did raise a colorable federal claim. The tribe alleged in its complaint that,
under federal law ? in particular, the Indian Commerce Clause and the Kansas
Act for Admission ? the state was required to extend recognition to the motor
vehicle registrations and titles issued by the tribe. This claim was not "wholly
insubstantial or frivolous" in light of the various Supreme Court cases in which
the validity of state motor vehicle laws as applied to tribes and their members
was challenged on similar grounds. See, e.g., Oklahoma Tax Comm'n v. Sac &
Fox Nation, 508 U.S. 114, 127 (1993) (questioning the validity of a state motor
vehicle excise tax and registration fee as applied to a tribe and its members);
Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S.
134, 162_64 (1980) (concluding that a state lacked authority to impose a motor
vehicle excise tax upon a tribe and its members when the tax was not "tailored to
the amount of actual off_reservation use"); Moe v. Confederated Salish &
Kootenai Tribes of the Flathead Reservation, 425 U.S. 463, 480_81 (1976)
(concluding that a state personal property tax on motor vehicles was invalid as to
a tribe and its members). We also take note of cases such as Red Lake Band of
Chippewa Indians v. State, 248 N.W.2d 722 (Minn. 1976), and Queets Band of
Indians v. Washington, 765 F.2d 1399 (9th Cir. 1985), vacated as moot, 783 F.2d
154 (1986), each of which involved a tribal challenge to state motor vehicle
registration and titling laws on the basis of federal law.
2. Article III Case or Controversy and Standing
The next issue raised by the defendants is whether the tribe's claim
presents an Article III case or controversy. Though the defendants raised this
issue below, the district court did not address it, simply granting the TRO and
preliminary injunction to the tribe without comment. "We review de novo issues
. . . that are prerequisites to this court's jurisdiction." Office of Thrift
Supervision v. Overland Park Fin. Corp. (In re Overland Park Financial Corp.),
236 F.3d 1246, 1253_54 (10th Cir. 2001).
Article III provides that the exercise of the "judicial Power" is restricted to
actual "cases" and "controversies." U.S. Const. art. III, § 2. Therefore, under
Article III, a federal court is prohibited from entertaining a case in which the
issues are not yet ripe, in which the issues are moot, or in which the parties lack
a legally cognizable interest in the outcome. See U.S. West, Inc. v. Tristani, 182
F.3d 1202, 1208 (10th Cir. 1999) (noting that "[t]he case or controversy
requirement of Article III admonishes federal courts to avoid premature
adjudication and to abstain from entangling themselves in abstract
disagreements") (internal quotation marks omitted), cert. denied, 528 U.S. 1106
(2000); Central Wyo. Law Assoc., P.C. v. Denhardt, 60 F.3d 684, 687 (10th Cir.
1995) (noting that, under the case_or_controversy limitation of Article III, a case
must be live and not moot); AMISUB (PSL), Inc. v. State of Colo. Dep't of Soc.
Servs., 879 F.2d 789, 794 (10th Cir. 1989) (noting that, if a party "does not have
a legally cognizable interest in the outcome of the case, no live controversy exists
? any issuing federal opinion would be purely advisory, and, as such, prohibited
by Article III").
Because there are live issues before us waiting to be resolved, we hold that
the instant case is neither lacking in ripeness nor moot. Though the tribe has
ceased issuing registrations and titles since the stay of the preliminary injunction,
it has done so on a temporary basis only; moreover, the tribal motor vehicle code
has not been repealed, and there are still four vehicles with tribal registrations
and titles in use.
As to the defendants' contention that there is no case or controversy
because the tribe lacks a legally cognizable interest, that matter is better
addressed in the context of standing, which is another issue raised by the
defendants. See Citizens Concerned for Separation of Church & St. v. City &
Cty. of Denver, 628 F.2d 1289, 1294 (10th Cir. 1980) (noting that "the standing
doctrine has evolved as a doctrine of constitutional limitation on the federal
judicial power found in the `case or controversy' language of Article III"). As
before, the defendants argued this issue below, but the district court did not
specifically address it when granting the TRO and preliminary injunction. We
apply de novo review. See Overland Park, 236 F.3d at 1253_54.
Standing is an essential part of the case_or_controversy
requirement and involves three elements. First, the plaintiff must
have suffered an invasion of a legally_protected interest that is
concrete and particularized, and actual or imminent, not conjectural
or hypothetical. Second, there must be a causal connection between
the injury and the complained of conduct; that is, the injury must be
fairly . . . trace[able] to the challenged action of the defendant, and
not . . . th[e] result [of] the independent action of some third party
not before the court. Finally, it must be likely, not merely
speculative, that the injury will be redressed by a favorable decision.
Gilbert v. Shalala, 45 F.3d 1391, 1393_94 (10th Cir. 1995) (citations and
internal quotation marks omitted).
According to the defendants, the tribe does not have standing because it
has not suffered any injury through the state's refusal to grant recognition to the
tribally issued registrations and titles. We disagree. Motor vehicle registration
and titling is a traditional governmental function. See Crow Tribe of Indians v.
Montana, 650 F.2d 1104, 1110 (9th Cir. 1981); Red Lake, 248 N.W.2d at 725.
The state's refusal to extend recognition, therefore, causes an obvious harm to the
tribe: interference with or infringement on tribal self_government. Cf. Moe, 425
U.S. at 469 n.7 (addressing tribe's contention that state motor vehicle tax could
not be imposed on tribe and its members and noting that "the Tribe, Qua Tribe,
ha[d] a discrete claim of injury with respect to these forms of state taxation so as
to confer standing upon it apart from the monetary injury asserted by the
individual [tribal members]"). Protection of that right is the foundation of federal
Indian law; accordingly, we conclude that the tribe has standing.
3. Younger Abstention
In addition to these jurisdictional arguments, the defendants argue that the
district court should have abstained under Younger v. Harris, 401 U.S. 37 (1971).
During the proceedings below, the district court found that "the parties agreed
that Younger abstention was not applicable," Aplts' Br. at 45, and therefore did
not address it. On appeal, the defendants contend that they never conceded the
point and, from the record, it appears that this is true. See Aplts' App. vol. III, at
103 (counsel for tribe, not defendants, arguing at clarification hearing that the
Younger abstention issue was moot). We review the issue de novo. See J.B. ex
rel. Hart v. Valdez, 186 F.3d 1280, 1291 (10th Cir. 1999).
Younger abstention is predicated on the "desire to permit state courts to try
state cases free from interference by federal courts." Younger, 401 U.S. at 43.
Under Younger, it is appropriate for a federal court to abstain from hearing a case
if (1) a state judicial proceeding is ongoing; (2) an important state interest is at
stake; and (3) there is an adequate opportunity in the state proceeding to raise
federal claims. See Seneca_Cayuga Tribe of Okla. v. Oklahoma, 874 F.2d 709,
711 (10th Cir. 1989).
The defendants suggest that we should abstain in the instant case because
future prosecutions based on a failure to comply with the state motor vehicle
registration and titling laws are possible. The possibility of future prosecutions,
however ? even the likelihood of future prosecutions ? is not sufficient to justify
Younger abstention. As noted above, before Younger abstention may be invoked,
"there must be an ongoing state . . . proceeding[]," Taylor v. Jaquez, 126 F.3d
1294, 1297 (10th Cir. 1997) (emphasis added). Because the defendants have not
pointed to any such state proceeding (all citations issued to the tribe or its
members having been resolved), Younger abstention is patently inapplicable.
B. Preliminary Injunction
Having addressed the defendants' jurisdictional arguments, we now
proceed to the defendants' challenge to the preliminary injunction entered by the
district court. As noted above, the district court enjoined the defendants from
"any further application or enforcement of the Kansas motor vehicle registration
or titling laws against the [tribe] and any persons who operate or own a vehicle
registered and titled under [the] Tribal Code . . . ." Aplts' App. vol. II, at 143
(district court order, filed Oct. 13, 1999).
The defendants contend that the district court erred in granting this
injunctive relief on several grounds. First, they assert that the preliminary
injunction was not sufficiently specific as required by Federal Rule of Civil
Procedure 65(d). Second, they argue that as a matter of law the district court
applied the wrong standard in deciding to issue the preliminary injunction.
Finally, they contend that, even if the district court applied the proper standard,
the tribe failed to demonstrate that a preliminary injunction was necessary. We
review de novo the issue of specificity under Rule 65(d). See Reliance Ins. Co.
v. Mast Constr. Co., 159 F.3d 1311, 1316 (10th Cir. 1998). We review for an
abuse of discretion the grant of a preliminary injunction. See ACLU v. Johnson,
194 F.3d 1149, 1155 (10th Cir. 1999). A district court abuses its discretion if it
"commits an error of law, or is clearly erroneous in its preliminary factual
findings." Id. (internal quotation marks omitted).
1. Specificity: Federal Rules of Civil Procedure 65(d) and 52(a)
On appeal, the defendants first argue that the preliminary injunction
granted by the district court was not sufficiently specific as required by Federal
Rule of Civil Procedure 65(d). According to the state, it was not clear from the
district court order "precisely what acts [were being] forbidden." Aplts' Br. at
33.
[e]very order granting an injunction . . . shall set forth the reasons
for its issuance; shall be specific in terms; shall describe in
reasonable detail, and not by reference to the complaint or other
document, the act or acts to be restrained; and is binding only upon
the parties to the action, their officers, agents, servants, employees,
and attorneys, and upon those persons in active concert or
participation with them who receive actual notice of the order by
personal service or otherwise.
Fed. R. Civ. P. 65(d). "[T]he specificity provisions of Rule 65(d) are no
mere technical requirements. The Rule was designed to prevent
uncertainty and confusion on the part of those faced with injunctive orders,
and to avoid the possible founding of a contempt citation on a decree too
vague to be understood." Schmidt v. Lessard, 414 U.S. 473, 476 (1974)
(per curiam); see also Keyes v. School Dist. No. 1, Denver, Colo., 895
F.2d 659, 668 (10th Cir. 1990) (noting that "an injunction [must] be
reasonably specific in identifying what acts are prohibited or required, both
to give notice to the defendant of what is prohibited, and to guide an
appellate court in reviewing the defendant's compliance or noncompliance
with the injunction").
However, Rule 65(d) does not require the impossible. See Reliance, 159
F.3d at 1316_17 ("`There is a limit to what words can convey. . . . The right to
seek clarification or modification of the injunction provides assurance, if any be
sought, that proposed conduct is not proscribed.'") (quoting Scandia Down Corp.
v. Euroquilt, Inc., 772 F.2d 1423, 1431_32 (7th Cir. 1985)); see also Johnson v.
Radford, 449 F.2d 115, 117 (5th Cir. 1971) ("A temporary injunction is intended
to be temporary, to meet the exigencies of the situation, and necessarily at times
lacks the degree of precision which may be required on final decree."). A
preliminary injunction is vague only when "the delineation of the proscribed
activity lacks particularity or when containing only an abstract conclusion of law,
not an operative command capable of enforcement." CF&I Steel Corp. v. United
Mine Workers of America, 507 F.2d 170, 173 (10th Cir. 1974) (internal quotation
marks omitted).
Here, the preliminary injunction provided that the state was barred from
"any further application and enforcement of the Kansas motor vehicle registration
or titling laws against the [tribe] and any persons who operate or own a vehicle
registered and titled under [the tribal motor vehicle code]. This order applies to
vehicles driven both on and off of the [tribe's] reservation." Aplts' App. vol. II,
at 143 (district court order, filed Oct. 13, 1999). The order also stated that
"[t]his injunction is not meant to have any effect on cases which are currently
pending before any Kansas state court and is not meant to have any effect on
Kansas traffic laws that do not deal directly with vehicle registration, vehicle
license plates[,] and motor vehicle titles." Id.
We are at a loss as to how this order was inadequate under Rule 65(d). At
issue in this case is whether the state must grant recognition to motor vehicle
registrations and titles issued by the tribe. The preliminary injunction addressed
this issue head on and stated precisely what conduct was being enjoined:
Vehicles registered and titled by the tribe could not be cited for noncompliance
with state registration and titling laws. Notably, the defendants in their brief fail
to explain how the preliminary injunction was lacking, simply stating in
conclusory terms that "the order of injunctive relief fails to meet the specificity
standards [of Rule 65]." Aplts' Br. at 32.
During the proceedings below, the defendants did argue that the TRO was
not sufficiently specific because it was "unclear or perhaps subject to
interpretation what the term[s] applying and enforcing [as used in the TRO]
mean[t]." Aplts' App. vol. III, at 28. The defendants also argued that it was
"unclear" as to whether "the [TRO] only applie[d] to [Kan. Stat. Ann. §] 8_142,
which is the issuance of traffic tickets," or was broader in "scope and extent."
Id. at 76_77. To the extent that these are the defendants' grounds for challenging
the preliminary injunction, we hold that they are meritless. There was nothing
vague about the use of the words "apply" and "enforce" in the district court's
order; indeed, it is the norm to speak of the application and enforcement of laws.
Nor was the scope and extent of the preliminary injunction unclear simply
because the order did not list the exact state laws that could not be applied to the
tribe and its members. It is sufficient that the preliminary injunction provided
that "[t]his injunction is not meant to have any effect . . . on Kansas traffic laws
that do not deal directly with vehicle registration, vehicle license plates[,] and
motor vehicle titles." Aplts' App. vol. II, at 143 (district court order, filed Oct.
13, 1999) (emphasis added); cf. Reliance, 159 F.3d at 1316 ("Rule 65(d) requires
only that the enjoined conduct be described in reasonable, not excessive, detail ?
particularly in cases like this when overly precise terms would permit the very
conduct sought to be enjoined.").
Though the preliminary injunction is in accord with Rule 65(d), there is
some question as to whether it complies with Federal Rule of Civil Procedure
52(a). Under Rule 52(a), a district court is required to make findings of fact and
conclusions of law at the time it enters a preliminary injunction. See Fed. R.
Civ. P. 52(a); Mesa Petroleum Co. v. Cities Serv. Co., 715 F.2d 1425, 1433 (10th
Cir. 1983). Our concern here is with the adequacy of the findings and
conclusions made by the district court.
As a preliminary matter, we note that the defendants do not explicitly raise
this argument on appeal. However, we are compelled to address the issue
because, without adequate findings of fact and conclusions of law, appellate
review is in general not possible. See Knapp Shoes, Inc. v. Sylvania Shoe Mfg.
Corp., 15 F.3d 1222, 1227 (1st Cir. 1994) (noting that Rule 52(a) requires a trial
court to "set forth the findings of fact and conclusions of law which constitute
the grounds of its action" and that the rule "reflects the importance of injunctions
and of providing an adequate basis for their appellate review") (internal quotation
marks omitted); Curtis v. Commissioner, 623 F.2d 1047, 1051 (10th Cir. 1980)
(noting that a trial court's findings of fact "may be challenged as inadequate to
give a clear understanding of the process by which the court's ultimate
conclusions were reached and thus inadequate to permit appellate review").
In the instant case, the district court made no explicit factual findings or
legal conclusions when it issued the preliminary injunction. See Aplts' App. vol.
II, at 143 (district court order, filed Oct. 13, 1999) (simply granting the
preliminary injunction and stating its parameters). It did, however, give findings
of fact and conclusions of law when it granted the TRO. For purposes of this
opinion, we assume that it is proper for us to look to the findings and conclusions
in the TRO because the parties agreed that the TRO was in effect a preliminary
injunction. See id. vol. II, at 93 (defendants' request for clarification, filed Sept.
27, 1999) (noting that the TRO was in effect a preliminary injunction); id. vol.
III, at 89 (counsel for tribe at clarification hearing) ("So the way I see this
hearing [for clarification] today is . . . we are ready to have the Court determine
that a preliminary injunction should be issued.").
In granting the TRO, the district court made the following findings of fact
and conclusions of law:
The court finds that if the defendants are not enjoined from
enforcing the Kansas motor vehicle registration and titling laws
pending the outcome of this case, the plaintiff would suffer
irreparable injury. The court has considered the parties' arguments
concerning the balancing of potential injury to the parties and finds
that the potential harm to the plaintiff if the temporary restraining
order is not issued outweighs any potential harm to the defendants
which would be caused by the issuance of the order. The court
further finds that the issuance of this temporary restraining order
would not be contrary to the public interest.
If the plaintiff satisfies the first three elements, the standard
for meeting the fourth requirement, likelihood of prevailing on the
merits, becomes more lenient. In such a case, the plaintiff need only
show that the issues are so serious, substantial, difficult, and
doubtful as to make them fair ground for litigation. Given this
standard, the court finds that the plaintiff has met its burden of
showing a likelihood of prevailing on the merits.
Id. vol. II, at 85_86 (district court order, filed Sept. 23, 1999) (citation omitted).
Though we accord great deference to the district court, we believe that
these findings do not give a clear understanding of the process by which its
ultimate conclusions were reached. Although Rule 52(a) does not require "over_
elaboration of detail or particularization of facts," conclusory findings are not
sufficient compliance with the Federal Rules of Civil Procedure. Knapp, 15 F.3d
at 1228 (internal quotation marks omitted); see also EEOC v. United Virginia
Bank/Seaboard Nat., 555 F.2d 403, 406 (4th Cir. 1977) ("When the trial court
provides only conclusory findings, illuminated by no subsidiary findings or
reasoning on all the relevant facts, . . . there is not that `detail and exactness' on
the material issues of fact necessary for an understanding by an appellate court of
the factual basis for the trial court's findings and conclusions . . . .").
There are times, however, when a district court's failure to comply with
Rule 52(a) will not necessitate a remand for clarification. For example, it has
been held that a court of appeals can consider a district court's failure to make
adequate findings of fact as nonreversible error if it can ascertain from the record
that one party or the other was clearly entitled to judgment in its favor. See
Kweskin v. Finkelstein, 223 F.2d 677, 679 (7th Cir. 1955); see also United States
ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enterprise Mgmt.
Consultants, Inc., 883 F.2d 886, 889 (10th Cir. 1989) (noting the same). It has
also been held that, if "[t]here is . . . no danger of confusion about what is
required by the order or the basis of the decision [and] the record on appeal
supports the court's order and indicates the court heard evidence on each element[,] . . . any lack of specific findings of fact is harmless error." Anthony
v. Texaco, Inc., 803 F.2d 593, 600 (10th Cir. 1986) (citations omitted).
Accordingly, we conclude that, in the instant case, a remand for clarification is
not necessary: It was clear from the preliminary injunction what activity was
being proscribed, and the record on appeal indicates not only that the district
court heard evidence on the matter but also that the evidence supported issuance
of the preliminary injunction.
2. Preliminary Injunction Standard
The defendants argue next that the district court applied the wrong standard
in deciding to grant the tribe the preliminary injunction. See SCFC ILC, Inc. v.
Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) (noting that this court
"will set aside a preliminary injunction if the district court applied the wrong
standard when deciding to grant the preliminary injunction motion"). Ordinarily,
a party seeking a preliminary injunction must satisfy a four_factor test in order to
be awarded such temporary relief. The requesting party must demonstrate (1)
that it has a substantial likelihood of prevailing on the merits; (2) that it will
suffer irreparable harm unless the preliminary injunction is issued; (3) that the
threatened injury outweighs the harm the preliminary injunction might cause the
opposing party; and (4) that the preliminary injunction if issued will not
adversely affect the public interest. See Federal Lands Legal Consortium v.
United States, 195 F.3d 1190, 1194 (10th Cir. 1999) [hereinafter FLLC]. "As a
preliminary injunction is an extraordinary remedy, the [requesting party's] right
to relief must be clear and unequivocal." Visa, 936 F.2d 1098 (citation omitted).
That being said, there is one slight wrinkle to this four_factor test. If the
party seeking the preliminary injunction can establish the last three factors listed
above, then the first factor becomes less strict ? i.e., instead of showing a
substantial likelihood of success, the party need only prove that there are
"questions going to the merits . . . so serious, substantial, difficult, and doubtful
as to make the issue ripe for litigation and deserving of more deliberate
investigation." FLLC, 195 F.3d at 1194.
In the instant case, the district court applied this "traditional" standard,
finding that the tribe had satisfied the last three factors and that it had also met
the first factor under the more lenient formulation. It therefore granted the tribe
the preliminary injunction, enjoining the defendants from enforcing the state
registration and titling laws with respect to the tribe and its members. On appeal,
the defendants argue that the traditional standard should not have been used
because the preliminary injunction issued by the district court (1) afforded the
tribe substantially all the relief it might recover after a full trial on the merits and
(2) disturbed the status quo. According to the defendants, these types of
preliminary injunctions are disfavored, and, before a disfavored preliminary
injunction may be granted, the requesting party must satisfy a "heightened"
standard ? i.e., demonstrate that the four factors listed above weigh "heavily and
compellingly" in its favor.(4) See Kikumura v. Hurley, No. 99_1284, 2001 WL
237373, at *3 (10th Cir. Mar. 9, 2001) (internal quotation marks omitted).
a. Granting Substantially All the Relief Sought
As a preliminary matter, we note that the defendants never argued before
the district court that a heightened standard should apply on the ground that the
preliminary injunction desired by the tribe would afford it substantially all the
relief it might recover. In light of this fact, we consider the argument waived. See Vitkus v. Beatrice Co., 127 F.3d 936, 946 (10th Cir. 1997) ("As a general
rule, a federal court of appeals will not consider an issue not passed upon
below.").
Even if the argument had been properly presented, we would not rule in the
defendants' favor. "[T]he terms `all the relief to which the movant would be
entitled' or `all the relief sought' have . . . been the source of confusion because,
read literally, they appear to describe any injunction where the final relief for the
plaintiff would simply be a continuation of the preliminary relief." Tom Doherty
Assoc., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995). There is no
reason, however, to disfavor a preliminary injunction simply because "the
plaintiff would get no additional relief if he prevailed at the trial on the merits."
Id. (internal quotation marks omitted). The only reason to disfavor a preliminary
injunction that grants substantially all the relief sought is if it would "render a
trial on the merits largely or completely meaningless." Id. at 35. Therefore, "`all
the relief to which a plaintiff may be entitled' must be supplemented by a further
requirement that the effect of the order, once complied with, cannot be undone."
Id.; see also id. (giving examples of preliminary relief that cannot be undone ?
for instance, "a case involving the live televising of an event scheduled for the
(4) In this circuit, there are three types of preliminary injunctions that are
disfavored: (1) those that afford the moving party substantially all the relief it
might recover after a full trial on the merits, (2) those that disturb the status quo,
and (3) those that are mandatory as opposed to prohibitory. See Visa, 936 F.2d
at 1098_99. In the instant case, the defendants do not sufficiently argue that the
preliminary injunction was mandatory in nature. See King v. Town of Hanover,
116 F.3d 965, 970 (1st Cir. 1997) ("It is an established appellate rule that issues
adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. . . . It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to do counsel's
work.") (internal quotation marks omitted).
day on which preliminary relief is granted" or "a case involving the disclosure of
confidential information").
In the instant case, the relief ultimately sought by the tribe was state
recognition of its registrations and titles. The preliminary injunction issued by
the district court gave the tribe at most only temporary recognition, not
permanent. In other words, if the tribe was not successful at trial, then the
defendants would be permitted to cite any vehicle with a tribal registration and
title. Therefore, the preliminary injunction granted by the district court did not,
as the defendants contend, afford the tribe substantially all the relief it might
recover. This interim relief, quite simply, was not "complete." Eng v. Smith,
849 F.2d 80, 82 (2d Cir. 1988).
b. Altering the Status Quo
During the proceedings below, the defendants suggested to the district
court that a heightened standard, and not the traditional one, should apply
because the injunctive relief sought by the tribe would change the status quo.
More specifically, Mr. Brownlee asserted, in his response to the tribe's motion
for a TRO, that "[c]ourts have applied certain additional standards in judging a
request for injunctive relief which should be considered with regard to the tribe's
present motion for TRO . . . . [For example,] an injunction will not issue which
has the effect of disturbing the status quo." Aplts' App. vol. II, at 46 (Mr.
Brownlee's response to tribe's motion for a TRO, filed Sept. 25, 1999). Nothing
more was said on the status quo issue, though, until the clarification hearing on
October 7, 1999, in which the district court responded to the defendants'
"objections" to the issuance of the TRO.
During that hearing, the defendants for the first time articulated with any
substance their status quo argument:
On September 23[d], the Court took like a snapshot of the situation
and said, `The balance of harms appears to be in favor of granting
the TRO for the Plaintiff.' But what the Plaintiff has done with that
TRO since is taken advantage of the situation by issuing many more
tribal registrations . . . . [T]here were 20 at that the time that we
stood in front of you a week ago [when the TRO was issued]. And
we feared that ? you know, 20 vehicles is a status quo.
But since then, they have apparently taken advantage of the
situation. They have between 400 and 500 members that they could
be issuing these registrations to. . . . [T]he problem is that the state
is restrained while the other party is not. And the other party is free
to use the Court's order as a sword, not as a shield and to take action
to change the status quo.
Aplts' App. vol. III, at 79_80 (counsel for Mr. Brownlee at clarification hearing).
The district court did not respond to the argument and simply converted the TRO
it had issued to a preliminary injunction.
Subsequently, the defendants presented the same argument before the
district court when they sought a stay of the preliminary injunction pending
appeal. Once again, the district court did not address the argument and simply
denied the application for stay. This led the defendants to file an application for
stay before this court, which was ultimately granted on November 9, 1999.
Notably, the defendants' argument before this court was, yet again, that the
preliminary injunction altered the status quo because, while it prevented the state
from issuing more citations, "it free[d] the tribe to issue as many tribal tags and
registrations to whomever it wishe[d]." Aplts' App. for Stay at 5 (filed Oct. 18,
1999).
From this review of the proceedings, it is clear that the defendants did
preserve for our consideration the general issue of status quo. But it should be
noted that, on appeal, the defendants present a markedly different status quo
argument, one never raised before the district court ? i.e., that the preliminary
injunction disturbed the status quo because, prior to the lawsuit, the "last
uncontested status" between the parties was when the tribe had no motor vehicle
code of its own and willingly complied with the state registration and titling
laws. See Visa, 936 F.2d at 1100 n.8 (defining status quo as "the last
uncontested status between the parties which preceded the controversy until the
outcome of the final hearing") (internal quotation marks omitted).
We do not approve of this sudden change of tune by the defendants.
Consequently, we do not consider on appeal the defendants' new status quo
argument. See Fed. R. Civ. P. 46 (requiring that "a party, at the time the ruling
or order of the court is made or sought, make[] known to the [trial] court the
action which the party desires the court to take or the party's objection to the
action of the court and the grounds therefor") (emphasis added); Shultz v. Rice,
809 F.2d 643, 647 (10th Cir. 1986) (noting that a trial court should be
"provide[d] . . . with the opportunity to know the specific contentions and to take
corrective action, if required"); see also Singleton v. Wulff, 428 U.S. 106, 121
(1976) ("The matter of what questions may be taken up and resolved for the first
time on appeal is one left primarily to the discretion of the courts of appeals.").
We limit our review instead to the argument that the defendants made below, that
is, that the preliminary injunction changed the status quo because, although it
restrained the state from issuing more citations, it did not restrict the tribe from
issuing more registrations and titles.
To begin our analysis, we agree with the defendants that the preliminary
injunction did not name the tribe as a restricted party. It simply specified that the
defendants were restrained from acting ? i.e., from "any further application and
enforcement of the Kansas motor vehicle registration or titling laws against the
[tribe] and any persons who operate or own a vehicle registered and titled under
[the] Tribal Code . . . ." Aplts' App. vol. II, at 143 (district court order, filed
Oct. 13, 1999). It seems to us, then, that under the terms of the preliminary
injunction the tribe was in fact free to increase its registration and titling if it so
desired. But while the preliminary injunction permitted the tribe to proceed with
more registration and titling, it did not as a necessary consequence protect all
registration and titling. According to the preliminary injunction, only vehicles
"registered and titled" under the tribal motor vehicle code were protected. The
use of the past tense here is significant. It indicates that the preliminary
injunction applied only to those tribal registrations and titles already existing as
of the time the preliminary injunction was entered. Had the preliminary
injunction been intended to include future tribal registrations and titles, it would
have read differently. For example: "The defendants are enjoined from applying
and enforcing the state registration and titling laws with respect to vehicles
registered and titled, or to be registered and titled, under the tribal motor vehicle
code."(5)
Because the preliminary injunction extends only to those tribal
registrations and titles already existing prior to its issuance, we reject the
defendants' argument that the preliminary injunction disturbed the status quo.
Status quo means literally "[t]he situation that currently exists," Black's Law
Dictionary 1420 (7th ed. 1999), and at the time the tribe filed suit the situation
currently existing was one in which (1) the state motor vehicle code was in force,
(2) the tribal motor vehicle code was in force, and (3) approximately twenty
tribal registrations and titles were in use. The preliminary injunction issued by
the district court in essence "froze" that moment in time, giving (temporary)
validity to the tribal registrations and titles already issued but no more. As the
defendants themselves recognized, "[T]he Court took like a snapshot of the
situation." Aplts' App. vol. III, at 79 (counsel for Mr. Brownlee at clarification
hearing); see also Massachusetts Mut. Life Ins. v. Associated Dry Goods Corp.,
786 F. Supp. 1403, 1427 (N.D. Ind. 1992) (recognizing that the status quo could
(5)
Our narrow reading of the preliminary injunction is justified not only
because of the language used but also because of this court's authority to modify
overbroad injunctions. See United States v. Jenks, 22 F.3d 1513, 1519 (10th Cir.
1994).
but "need not consist of a photographic replication of the circumstances existing
at the moment suit was filed"). Because the preliminary injunction issued by the
district court did not change the status quo, the district court properly applied the
traditional standard rather than the heightened one.
3. Preliminary Injunction Merits
Having established that the district court properly used the traditional
standard in deciding whether to issue the preliminary injunction, we now proceed
to the defendants' merit_based challenge to the injunctive relief. We review for
an abuse of discretion. See ACLU, 194 F.3d at 1155. Under this deferential
standard of review, we conclude that the district court did not abuse its discretion
in analyzing the following four factors: (1) irreparable harm, (2) balancing of
potential harms, (3) public interest, and (4) substantial likelihood on the merits.
a. Irreparable Harm
The concept of irreparable harm, unfortunately, "does not readily lend
itself to definition." Wisconsin Gas Co. v. Federal Energy Regulatory Comm'n,
758 F.2d 669, 674 (D.C. Cir. 1985). Case law has provided some guidance,
however, noting for example that the injury "must be both certain and great," id.;
and that it must not be "merely serious or substantial." A.O. Smith Corp. v. FTC,
530 F.2d 515, 525 (3d Cir. 1976). Cases have also noted that irreparable harm is
often suffered when "the injury can[not] be adequately atoned for in money," id.;
or when "the district court cannot remedy [the injury] following a final
determination on the merits." American Hosp. Ass'n v. Harris, 625 F.2d 1328,
1331 (3d Cir. 1980).
Given these definitions, we hold that the district court did not abuse its
discretion in determining that, without the preliminary injunction, the tribe would
suffer irreparable harm. First, the injury to the tribe was "certain and great" and
more than "merely serious or substantial." As noted above, motor vehicle
registration and titling is a traditional governmental function. The tribe instituted
its motor vehicle code not out of whim but because of a need to "control[] the
access and presence of persons to and on [the] Reservation territory," a result of
"an increasing number of motor vehicles . . . being used by Indian and non_Indian
persons to enter the Reservation territory in order to engage in gaming and other
activities with Tribal enterprises or members." PBMVC § 17_1. Thus, the threat
of continued citation by the state created the "prospect of significant interference
with [tribal] self_government." Seneca_Cayuga, 874 F.2d at 716 (finding
irreparable injury where threatened loss of revenues and jobs created "prospect of
significant interference with [tribal] self_government").
Second, the injury to the tribe was irreparable because it could not be
adequately compensated for in the form of monetary damages. Not only is harm
to tribal self_government not easily subject to valuation but also, and perhaps
more important, monetary relief might not be available to the tribe because of the
state's sovereign immunity. See Kansas Health Care Ass'n, Inc. v. Kansas Dep't
of Soc. & Rehab. Servs., 31 F.3d 1536, 1543 (10th Cir. 1994) (noting that
"plaintiffs had established harm ? a legally cognizable injury to them resulting
from noncompliance with the Boren Amendment" and that the "plaintiffs' injury
was irreparable" because "the Eleventh Amendment bars a legal remedy in
damages").(6)
b. Balancing of Potential Harms
According to the defendants, the district court failed to give adequate
consideration to the harm the state would suffer upon issuance of the preliminary
injunction. As framed by the defendants, the injury to the state was largely one
of safety: Vehicles with tribally issued registrations and titles do not appear in
the national crime database, and so a law enforcement officer who stops such a
vehicle has "no idea if that car is stolen [or] if there are any warrants out on the
driver," Aplts' App. vol. III, at 27 (counsel for Ms. Pierce and Ms. Walker);
consequently, the lives of law enforcement officers as well as the lives of "the
public at large" are placed in danger. Id. at 86 (counsel for Mr. Brownlee).
While the defendants raise a legitimate concern, we cannot say that the
district court abused its discretion in determining that the injury to the tribe was
(6) The defendants seem to suggest that the tribe would not suffer
irreparable injury without the preliminary injunction because multiple compliance
_ i.e., compliance with both the tribal and the state registration and titling laws _
is possible. See Aplts' App. vol. III, at 74_75 (counsel for Ms. Pierce and Ms.
Walker) ("There is nothing wrong with Kansas plates and Kansas titles on the
back of a vehicle, and if they want to put an Indian plate on the front of the
vehicle, they're free to do so."). We disagree.
It is not clear, for example, that a vehicle owner can have in her possession
two certificates of title, one issued by the tribe and a second issued by the state.
See PBMVC 17_10_19(A)(8) ("Each applicant for a [tribally issued] certificate
of title shall surrender to the Registrar . . . any and all other certificate of titleissued by any other governmental agency of any state which is held by the
applicant . . . as a prerequisite to receiving a certificate of title from the Prairie
Band of Potawatomi . . . ."). Without a certificate of title for each sovereign, the
owner could not have her vehicle registered with each sovereign. See PBMVC
17_10_4(D) (noting that a certificate of title "is a prerequisite to registration of
[a] vehicle"); Kan. Stat. Ann. 8_135(c) (noting that "[n]o vehicle required to be
registered shall be registered . . . unless the applicant for registration shall
present satisfactory evidence of ownership and apply for an original certificate of
title for such vehicle").
the more substantial. We note first that, given the record, it does not seem an
impossible task for the tribe to have its relatively small number of registrations
and titles become a part of the national database. The defendants vehemently
protest that "the Department of Revenue will not act as the Tribe's data entry
clerks for inputting data into our system," Aplts' App. vol. III, at 106 (counsel
for Ms. Pierce and Mr. Walker at clarification hearing), but there is no indication
in the record that the tribe was prevented from having its own data entry clerk or
possibly even its own system to be linked to the national database.
In addition, the record indicates that the defendants might have exaggerated
the safety problem. In that respect, we take note of the following: (1) Master
Trooper Gary Thiessen of the Kansas Highway Patrol stated outright in an
incident report that "this issue was not one of safety, but one of revenue," Aplts'
App. vol. III, at 118 (Kansas Highway Patrol Combined Incident Report, dated
Aug. 12, 1999); (2) vehicles with tribal registrations and titles were in use for
several months without any safety_related incident; (3) Jackson County Attorney
Micheal A. Ireland did not seem troubled by the safety issue, voluntarily adopting
a policy under which no citations would be issued to the tribe or its members
until a meeting could be held, see id., at 110 (affidavit of Mr. Ireland); (4) the
safety issue did not appear to worry the state of Minnesota, which granted
recognition to the tribe's registrations and titles; and (5) in spite of its concern
about safety, Kansas still recognizes the registrations and titles of tribes residing
outside the state. See note 2, supra.
The defendants argue, however, that aside from the safety problem there is
another injury to which the district court did not give adequate consideration:
interference with state sovereignty. See Aplts' Br. at 26 ("Kansas has a
significant and special sovereign interest in regulating and administering its laws
on behalf of all of its citizens on the public roads and highways that cross over
its territory."). This argument does give us some concern; yet again we cannot
say that the district court abused its discretion in finding that, in this limited area,
the threatened injury to tribal sovereignty outweighed the potential harm to state
sovereignty. Federal Indian law is replete with examples in which state law has
had to accommodate tribal sovereignty, whether because of federal preemption or
because of the guardian_ward relationship between the federal government and
Indian tribes. See Felix S. Cohen, Handbook of Federal Indian Law 234 (1982
ed.) ("[Chief Justice] Marshall said [in Worcester v. Georgia, 31 U.S. 515
(1832)] that the United States had assumed the role of `protector' of the Indian
tribes, acknowledging and guaranteeing their security as distinct political
communities in exchange for their friendliness to the United States.").
Furthermore, the state has not been prevented from enforcing its registration and
titling laws wholesale ? only with respect to the tribe and its members. In
contrast, without the preliminary injunction, the tribe's registration and titling
would likely have come to an end.
c. Public Interest
The defendants argue next that the preliminary injunction was adverse to
the public interest, largely because of the safety concern discussed above. In
response, the tribe asserts that the public has an interest in encouraging tribal
self_government and that the tribal motor vehicle laws benefitted the public by
"provid[ing] a safe and efficient transportation system [and by] establish[ing]
standards for the registration of vehicles [and] the issuance of certificates of
title." Aplts' App. vol. III, at 95_96 (counsel for tribe at clarification hearing).
The tribe also argues that a denial of the preliminary injunction would have
harmed the public because, under the tribal code, if the state did not grant
recognition, the tribe "would be required . . . in return to deny recognition to
state issued registrations and titles under tribal law." Aplts' App. vol. III, at 15_
16 (counsel for tribe at TRO hearing); see also PBMVC § 17_10_5(I) ("A vehicle,
even though operated upon roads within the boundaries of this Reservation, is
exempt for [sic] registration when such vehicle . . . [i]s a motor vehicle currently
registered in another Jurisdiction and not required to be registered with the
Prairie Band of Potawatomi. This exemption shall apply only to the extent that
the other Jurisdiction provides the same privileges and recognition for the tags
and titles issued by the Prairie Band Potawatomi Nation.").
We hold that the district court did not abuse its discretion in finding that
the public interest would not be adversely impacted by the issuance of the
preliminary injunction. As discussed above, the safety issue is not as portentous
as the defendants would have it; in addition, this court's case law suggests that
tribal self_government may be a matter of public interest. See Seneca_Cayuga,
874 F.2d at 716 ("[T]he injunction promotes the paramount federal policy that
Indians develop independent sources of income and strong self_government.").
d. Substantial Likelihood of Success
Because the tribe established the above three factors to the district court's
satisfaction, it was not required to demonstrate a substantial likelihood of success
on the merits. Rather, it had only to prove that there were "questions going to
the merits . . . so serious, substantial, difficult, and doubtful as to make the issue
ripe for litigation and deserving of more deliberate investigation." FLLC, 195
F.3d at 1194. Again, given our deferential standard of review, we conclude that
the district court did not abuse its discretion by finding that this factor was met.
Under Supreme Court case law, federal preemption is one barrier to the
assertion of state regulatory authority over a tribe and its members. See White
Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1976). In the context of
federal Indian law, the issue of preemption typically arises when state law
conflicts with (1) an enactment of Congress pursuant to the Indian Commerce
Clause or (2) a treaty entered into by the United States and a tribe. See
McClanahan v. State Tax Comm'n, 411 U.S. 164, 172 n.7 (1973).
Because of "[t]he unique historical origins of tribal sovereignty[,] . . . it
[is] generally unhelpful to apply . . . standards of pre_emption that have emerged
in other areas of the law." White Mountain, 448 U.S. at 143. In fact, there are
special standards of preemption that apply only to federal Indian law. For
example, "in order to find a particular state law to have been preempted by
operation of federal law, [there need not be] an express congressional statement
to that effect." Id. at 144. Similarly, a treaty need not contain an express
statement to have a preemptive effect. See, e.g., McClanahan, 411 U.S. at 174_75
(noting that "[t]he treaty nowhere explicitly states that the Navajos were to be
free from state law or exempt from state taxes" but that "this Court has
interpreted the Navajo treaty to preclude extension of state law ? including state
tax law ? to Indians on the Navajo Reservation"). Preemption in the context of
federal Indian law is also unique in that it rests "principally on a consideration of
the competing interests at stake" ? i.e., tribal, federal, and state interests. New
Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983) [hereinafter New
Mexico v. Mescalero] (rejecting "a narrow focus on congressional intent to
preempt State law as the sole touchstone").
Another barrier to the exercise of state power is the doctrine of Indian
sovereignty. See White Mountain, 448 U.S. at 142. Under Supreme Court case
law, tribal sovereignty is imposed upon if the exercise of state authority
"unlawfully infringe[s] on the right of reservation Indians to make their own laws
and be ruled by them." New Mexico v. Mescalero, 462 U.S. at 334 n.16 (internal
quotation marks omitted). Though modern cases tend to focus more on federal
preemption to define the limits of state power, the doctrine of Indian sovereignty
has not been weeded out of federal Indian law. Rather, it provides an essential
"backdrop against which the applicable [federal] treaties and statutes must be
read." McClanahan, 411 U.S. at 172; see also id. at 172 n.8 ("The extent of
federal pre_emption and residual Indian sovereignty in the total absence of
federal treaty obligations or legislation is . . . now something of a moot question.
The question is generally of little more than theoretical importance . . . since in
almost all cases federal treaties and statutes define the boundaries of federal and
state jurisdiction.") (citations omitted and emphasis added).
In the instant case, there are at least three possible barriers to the state's
assertions of authority with respect to motor vehicle registration and titling:
First, the various congressional enactments that demonstrate a congressional
concern with fostering tribal self_government might preempt the state laws on
registration and titling. See White Mountain, 448 U.S. at 143 & n. 10 ("[T]his
tradition [of Indian sovereignty] is reflected and encouraged in a number of
congressional enactments demonstrating a firm federal policy of promoting tribal
self_sufficiency and economic development."). Second, the several treaties
between the United States and the tribe, see 9 Stat. 853 (1846); 12 Stat. 1191
(1861); 15 Stat. 531 (1867); see also 1867 WL 5410 (executive order), might be a
basis for preemption, given that the treaties established the right of the tribe to a
reservation and therefore (implicitly) its right to self_govern. See McClanahan,
411 U.S. at 174_75 ("[I]t cannot be doubted that the reservation of certain lands
for the exclusive use and occupancy of the Navajos and the exclusion of non_
Navajos from the prescribed area was meant to establish the lands as within the
exclusive sovereignty of the Navajos under general federal supervision.").
Finally, the doctrine of Indian sovereignty might act as a bar to state regulatory
authority, though as noted above this doctrine typically works in tandem with
federal preemption instead of as an independent barrier.(7)
The defendants argue, however, that the congressional enactments, the
treaties, and the doctrine of Indian sovereignty only support preemption of state
laws on the reservation; they say nothing about the force of state laws beyond the
reservation but still within the state. According to the defendants, Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) [hereinafter Mescalero], establishes
the power of the state once vehicles with tribal registrations and titles are taken
outside the reservation. They cite the following general principle espoused in
Mescalero: "Absent express federal law to the contrary, Indians going beyond
reservation boundaries have generally been held subject to nondiscriminatory
state law otherwise applicable to all citizens of the State." Id. at 148_49
(emphasis added).
Mescalero is undoubtedly an important decision to be considered in the
resolution of the case at hand, especially since Congress did not explicitly
provide that states must grant recognition to tribal registration and titling.
However, at this point, our concern is not the final merits but rather whether
there are "questions going to the merits . . . so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and deserving of more deliberate
investigation." FLLC, 195 F.3d at 1195. We believe that there are. While
Mescalero provides support for the defendants' position, we question whether it
can be applied in as broad strokes as the defendants have used, that is, without
taking into consideration the specific facts that animated the case.(8) We reiterate
(7)
In its brief, the tribe raises another possible barrier: the Kansas
Admission Act. See Kansas Admission Act 1, 12 Stat. 126, 127 (1861)
("[N]othing contained in the said constitution respecting the boundary of said
State shall be construed to impair the rights of person or property now pertaining
to the Indians in said Territory, so long as such rights shall remain
unextinguished by treaty between the United States and such Indians, or to
include any territory which, by treaty with such Indian tribe, is not . . . to be
included within the territorial limits or jurisdiction of any State or Territory . . .
.").
For purposes of this opinion, we need not address this argument, though
the tribe is certainly entitled to present it for consideration in subsequent
proceedings before the district court. We do point out, however, that this court
recently issued an opinion on the meaning of the Act. See generally Sac & Fox
Nation of Mo. v. Pierce, 213 F.3d 566 (10th Cir. 2000), cert. denied, 121 S. Ct.
1078 (2001). This court suggested in Sac & Fox that an Indian tribe could not
assert rights under the Act unless the tribe had a treaty with the United States that
reserved those rights to the tribe at the time the Act went into effect. See id. at
577 ("The Act for Admission excludes from the boundaries of the State of Kansas
only those lands which Indian tribes reserved unto themselves `by treaty' with the
United States.").
(8) 8 The Supreme Court did state that the Mescalero principle "is as relevant to a
State's tax laws as it is to state criminal laws, and applies as much to tribal resorts as itdoes to fishing enterprises." Mescalero, 411 U.S. at 149. We do not take this statement
to mean, however, that the facts in Mescalero are not worthy of any consideration in
understanding the principle.
that preemption in the context of federal Indian law is about the careful balancing
of tribal, federal, and state interests. Depending on the facts, the interests of
these three sovereigns may vary.(9)
We note, for example, that the tribal activity in Mescalero ? the operation
of a ski resort located outside reservation land ? was conducted clearly and
exclusively beyond the reservation, thus heightening the interests of the state.
The same, however, cannot be said of the activity in the instant case: Here, the
activity conducted by the tribe was the registration and titling of vehicles; this
activity occurred within the reservation, not beyond, although as an ancillary consequence driving outside the reservation did occur.(10) See Blue Lake Forest
Prods., Inc. v. Hong Kong & Shanghai Banking Corp., Ltd., 30 F.3d 1138, 1141
(9th Cir. 1994) ("Even though this case implicates an off_reservation relationship
between two non_Indian actors (Blue Lake and the bank), we deem it an
on_reservation case for purposes of preemption because the essential conduct at
issue occurred on the reservation: the severance of timber and its removal
without proper compensation, in contravention of the governing contract and
federal regulations. Furthermore, the Indian enterprise at the heart of this dispute
? the timbering lands ? is located on, not off, the reservation."); People v.
McCovey, 685 P.2d 687, 697 (Cal. 1984) (en banc) (distinguishing Mescalero in
part because "the Indian activity in [Mescalero] occurred entirely off the
reservation, while this case involves on_reservation fishing followed by an off_
reservation sale").
Furthermore, the activity in Mescalero is in no way comparable to the
activity in the instant case because the operation of a ski resort is not a
(9) 9 We disagree with the Ninth Circuit's conclusion that, under Mescalero, no
balancing of interests takes place once the tribal activity takes place off_reservation. See
Cabazon Band of Mission Indians v. Smith, No. 99_55229, 2001 WL 521436, at *2 (9th
Cir. May 17, 2001) [hereinafter Cabazon II] ("White Mountain's preemption analysis is
not applicable to off_reservation activity."). Rather, we believe that the dissent in
Cabazon II had the better of it. See id. at *8 (Browning, J., dissenting) (noting that the
Mescalero principle "was only a generality and not carved in stone on Mt. Sinai"; also
noting that the Supreme Court has not restricted the balancing_of_interests test to cases in
which the tribal activity is solely on_reservation). That is, we read Mescalero to say that,
if the tribal activity is offreservation that fact generally tips the balancing test in favor of
the state (assuming there is no express federal law to the contrary).
(10)
Of course, these off_reservation effects should still be taken into account
when it comes to the interests of the state. See, e.g., New Mexico v. Mescalero,
462 U.S. at 336 (1983) ("A State's regulatory interest will be particularly
substantial if the State can point to off_reservation effects that necessitate State
intervention.").
traditional governmental function whereas the registration and titling of motor
vehicles is. Because of this fact, the interests of the tribe are heightened, a
significant counter to the state's interests in the effects of off_reservation driving.
Which sovereign's interests are more important is not at this point a matter
appropriate for our consideration. Instead, we merely note that Mescalero's
distinction between on_ and off_reservation activities is not necessarily
dispositive, especially in light of the doctrine of Indian sovereignty. As the
Supreme Court has repeatedly explained, the powers of tribes extend over not
only their territory but also their members, see Atkinson Trading Co., Inc. v.
Shirley, 121 S. Ct. ___, ___ (2001) ("Indian tribes are unique aggregations
possessing attributes of sovereignty over both their members and their territory . .
. .") (internal quotation marks omitted)(11); therefore, "[u]nder some circumstances
tribal powers can extend over members going beyond reservation boundaries."
Cohen, supra, at 246 (emphasis added). "The determinative factor is whether the
matter falls within the ambit of internal self_government." Id.; John v. Baker,
(11) 11 We have taken into consideration the Supreme Court's recent holding in
Atkinson and conclude that it does not affect the case at hand for at least two reasons: (1)
Atkinson deals with the application of Montana v. United States, 450 U.S. 544 (1981),
while our concern here is the application of Mescalero, and (2) Atkinson deals with tribal
authority over nonmembers, whereas here our focus is tribal authority over members.
982 P.2d 738, 752 (Alaska 1999) ("[I]n determining whether tribes retain their
sovereign powers, the United States Supreme Court looks to the character of the
power that the tribe seeks to exercise, not merely the location of events."), cert.
denied, 528 U.S. 1182 (2000). As one district court summed up, "The extent of
tribal sovereignty . . . clearly involves more than simple geographic limits, but
includes the `tradition of Indian sovereignty over the reservation and tribal
members.' Certain aspects of tribal sovereignty, such as tribal immunity from
suit, have been held to be so fundamental as to preempt the enforcement in court
of state laws regardless of where the activity takes place." Cabazon Band of
Mission Indians v. Smith, 34 F. Supp. 2d 1201, 1207 (C.D. Cal. 1998) (quoting
White Mountain, 448 U.S. at 143), aff'd, Cabazon II, 2001 WL 521436. But see
id. at *2 (criticizing the district court for making this statement based on its
conclusion that Mescalero, not White Mountain, was controlling since the tribal
activity at issue was off_reservation).
From this brief analysis of Mescalero, it should be clear that there are
indeed "questions going to the merits . . . so serious, substantial, difficult, and
doubtful as to make the issue ripe for litigation and deserving of more deliberate
investigation."(12) FLLC, 195 F.3d at 1195. And we note that Mescalero is only
the tip of the iceberg. As the parties have pointed out, Red Lake and Queets are
two more cases to take into consideration as, in each of these cases, a state was
compelled to extend recognition to motor vehicle registrations issued by a tribe.
See generally Red Lake, 248 N.W.2d at 722; Queets, 765 F.2d at 1399. In
addition, the parties should take into account the federal Indian law taxation
cases, in particular, Oklahoma Tax Commission and Colville, as in both of these
cases the Supreme Court indicated that tribal members could be compelled to pay
state motor vehicle registration fees (i.e., taxes) if the fees were tailored to off_
reservation use (i.e., use of the state roads). See Oklahoma Tax Comm'n, 508
U.S. at 127_28; Colville, 447 U.S. at 162_64. Further examination of Oklahoma
Tax Commission and Colville is certainly warranted, though their relevance may
be limited because the focus of the state's interests in those cases was revenue
and not safety (the primary concern of the defendants in the instant case). We also note that titling was not at issue in either Oklahoma Tax Commission or
Colville, while it is contested in the case at hand.
We conclude that the district court did have jurisdiction over the instant
case and that it did not abuse its discretion in granting the preliminary injunction.
Under the preliminary injunction, the defendants were enjoined from issuing
more citations but only with regard to those tribal registrations and titles already
issued prior to the grant of the preliminary injunction. Accordingly, we
AFFIRM.
(12) 12 We do not even address whether Mescalero's general principle is applicable in
the first place given that arguably the application of the state motor vehicle laws was not
nondiscriminatory. See Cabazon II, 2001 WL 521436, at *9 (Browning, J., dissenting)
(noting that the application of the state motor vehicle laws was in fact discriminatory
because (1) the tribe was similarly situated to states outside California but received
different treatment and because (2) the state laws made an exception for one tribe but not
the plaintiff_tribe).