Evans v. Shoshone-Bannock Land Use Policy Commission

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID M. EVANS, an individual; No. 13-35003

RON PICKENS, an individual, DBA

P&D Construction, an Idaho sole D.C. No.

proprietorship; SAGE BUILDERS, LP, 4:12-cv-00417-

an Idaho limited liability partnership, BLW

Plaintiffs-Appellants,

v. OPINION

SHOSHONE-BANNOCK LAND USE

POLICY COMMISSION; NATHAN

SMALL, as Chairman of the Fort Hall

Business Council; GLENN FISHER;

LEE JUAN TYLER; DEVON BOYER;

TINO BATT; BLAINE J. EDMO;

DARRELL DIXEY, as members of the

Fort Hall Business Council; TONY

GALLOWAY, SR., as Chairman of the

Shoshone-Bannock Land Use Policy

Commission; CASPER APPENAY;

JOHN FRED, as members of the

Shoshone-Bannock Land Use Policy

Commission; ARNOLD APPENEY, as

the Executive Director of the

Shoshone-Bannock Land Use

Department; GEORGE GUARDIPEE, as

an enforcement official of the

Shoshone-Bannock Land Use Policy

Commission; UNKNOWN SHOSHONE-

2 EVANS V. SHOSHONE-BANNOCK LUPC

BANNOCK TRIBAL COURT JUDGES, as

Tribal Judicial Officers,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Idaho

B. Lynn Winmill, Chief District Judge, Presiding

Argued and Submitted

November 5, 2013—Portland, Oregon

Filed December 5, 2013

Before: Milan D. Smith, Jr. and Andrew D. Hurwitz,

Circuit Judges, and James C. Mahan, District Judge.*

Opinion by Judge Milan D. Smith, Jr.

*

The Honorable James C. Mahan, District Judge for the U.S. District

Court for the District of Nevada, sitting by designation.

EVANS V. SHOSHONE-BANNOCK LUPC 3

SUMMARY**

Indian Law

Reversing in the district court’s denial of a motion for

preliminary injunction and dismissal of an action seeking to

enjoin tribal court proceedings, the panel held that the

Shoshone-Bannock Tribes lacked the power to regulate the

land use of the plaintiff, a nonmember who owned land in fee

simple within the Fort Hall Reservation.

The panel held that the plaintiff was not required to

exhaust tribal remedies before bringing suit in federal court

because the tribal court plainly lacked jurisdiction. The panel

held that because the plaintiff was an owner of non-Indian fee

land, the Tribes’ efforts to regulate him were presumptively

invalid under Montana v. United States, 450 U.S. 544 (1981),

and an exception for the regulation of nonmember activity

that directly affects a tribe’s political integrity, economic

security, health, or welfare did not apply. The panel reversed

the judgment of the district court and remanded the case for

further proceedings.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 EVANS V. SHOSHONE-BANNOCK LUPC

COUNSEL

Aaron N. Thompson (argued), May, Rammell & Thompson,

CHTD, Pocatello, Idaho, for Plaintiffs-Appellants.

Mark A. Echo Hawk (argued), Echo Hawk Law, Pocatello,

Idaho, for Defendants-Appellees.

OPINION

M. SMITH, Circuit Judge:

In this appeal, we consider whether the Shoshone-

Bannock Tribes plausibly have the authority to regulate the

land use of David Evans, a nonmember of the Tribes, who

owns land in fee simple within the Fort Hall Reservation.1

Acknowledging the general rule that tribes may not regulate

nonmember conduct on such “non-Indian fee land,” the

district court nevertheless held that the Tribes had a plausible

basis for asserting jurisdiction. The district court therefore

rejected Evans’ attempt to enjoin tribal court proceedings,

ruling that Evans must first exhaust tribal remedies. Because,

contrary to the district court’s conclusion, the Tribes plainly

lack the power to regulate Evans’ conduct, we reverse the

judgment of the district court and remand for further

proceedings.2

1

For ease of exposition, we refer to Plaintiffs-Appellants collectively as

Evans. We refer to Defendants-Appellees collectively as the Tribes.

2

In a memorandum disposition filed contemporaneously with this

opinion, we affirm the district court’s denial of Evans’ motion to strike the

majority of the Tribes’ evidentiary submissions.

EVANS V. SHOSHONE-BANNOCK LUPC 5

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff-Appellant David Evans inherited land in

Pocatello, a city in Power County, Idaho. Evans’ land is

located within the Fort Hall Reservation, the home of the

Shoshone-Bannock Tribes. Although his property is within

the borders of the reservation, Evans is not a member of the

Tribes, and he owns the land in fee simple.3

In 2012, after obtaining a building permit from Power

County, Evans began constructing a single-family residence

on his property. He hired Plaintiff-Appellant Sage Builders

to build the house, and Sage Builders in turn retained

subcontractors, including P&D Construction, to provide

materials and construction services.

On April 13, 2012, Defendant-Appellee George

Guardipee, the Compliance Officer for the Tribes’ Land Use

Policy Commission, requested that Evans submit a building

permit application to the Tribes. Guardipee further requested

that Evans pay the Tribes’ permit fees, and asked Evans to

ensure that all of his contractors and subcontractors obtain

3

“Thanks to the Indian General Allotment Act of 1887, 24 Stat. 388, as

amended, 25 U.S.C. § 331 et seq., there are millions of acres of non-Indian

fee land located within the contiguous borders of Indian tribes.” Plains

Commerce Bank v. Long Family Land & Cattle, 554 U.S. 316, 328 (2008)

(citing Atkinson Trading Co. v. Shirley, 532 U.S. 645, 648, 650 n.1

(2001)). The Tribes argue that this history is not directly relevant, as the

Fort Hall Reservation was allotted into fee simple parcels in 1889, rather

than under the more widely applicable 1887 Act. But they do not dispute

that Evans owns his land in fee simple. And they cite no authority

suggesting that the specific allotment-era statute under which alienation

of tribal land to nonmembers became possible is relevant to tribal

jurisdiction.

6 EVANS V. SHOSHONE-BANNOCK LUPC

business licenses and pay fees to the Tribes. Evans declined,

and continued building his home without tribal approval.

On May 16, 2012, Guardipee arrived on Evans’ land and

demanded that all work on the property cease. The workers

then left Evans’ property.

The next day, representatives from the Tribes posted a

Stop Work Notice on Evans’ property. The Tribes also sent

Evans a Tribal Notice of Violation/Cease and Desist Order,

which instructed Evans to contact the Tribes immediately.

Evans complied, and called Defendant-Appellee Tony

Galloway, Sr., the Chairman of the Land Use Policy

Commission. According to Evans, Galloway warned him that

the Commission would fine him $500 per day if he ignored

the stop work order.

In July 2012, the Commission served Evans with a

summons and complaint naming him and his builders as

defendants. The complaint, filed in Shoshone-Bannock

Tribal Court, accused Evans and the builders of violating the

Tribes’ Land Use Policy Ordinance, the Guidelines

implementing the Ordinance, and the Tribes’ Business

License Act.

On August 10, 2012, Evans, Sage Builders, and Ron

Pickens (the owner of P&D Construction) brought suit in the

United States District Court for the District of Idaho, seeking

a declaration that the tribal court lacked jurisdiction and an

injunction barring further tribal court proceedings against

them. The Tribes moved to dismiss, arguing that Evans was

required to exhaust tribal remedies before bringing suit in

federal court. Evans opposed the motion to dismiss and

moved for a preliminary injunction.

EVANS V. SHOSHONE-BANNOCK LUPC 7

On December 20, 2012, the district court granted the

Tribes’ motion to dismiss and denied Evans’ motion for a

preliminary injunction. The district court concluded that,

because Evans failed to exhaust tribal remedies, his federal

suit was premature. In so holding, the district court reasoned

that tribal authority to regulate Evans’ land use was plausible,

so the tribal court did not plainly lack jurisdiction. Evans

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291.4 We

review a district court’s denial of a preliminary injunction for

abuse of discretion. Perfect 10, Inc. v. Amazon.com, Inc.,

508 F.3d 1146, 1157 (9th Cir. 2007). We review a district

court’s underlying factual findings for clear error, and we

review its legal conclusions de novo. Id. “Whether

exhaustion of tribal remedies is required is a question of law

reviewed de novo.” Boozer v. Wilder, 381 F.3d 931, 934 (9th

Cir. 2004) (citing Boxx v. Long Warrior, 265 F.3d 771, 774

(9th Cir. 2001)).

DISCUSSION

I. Exhaustion of Tribal Remedies

“Non-Indians may bring a federal common law cause of

action under 28 U.S.C. § 1331 to challenge tribal court

jurisdiction.” Elliott v. White Mountain Apache Tribal Court,

566 F.3d 842, 846 (9th Cir. 2009) (quoting Boozer, 381 F.3d

4

The district court’s denial of Evans’ motion for a preliminary

injunction merged into the final judgment. See SEC v. Mount Vernon

Mem’l Park, 664 F.2d 1358, 1361–62 (9th Cir. 1982).

8 EVANS V. SHOSHONE-BANNOCK LUPC

at 934). Before bringing suit in federal court, however, a

non-Indian generally must first exhaust tribal remedies.

Elliott, 566 F.3d at 846; see also Nat’l Farmers Union Ins.

Cos. v. Crow Tribe of Indians, 471 U.S. 845, 850–53 (1985)

(describing exhaustion requirement).

There is no dispute that Evans failed to exhaust tribal

remedies. But the exhaustion requirement is not absolute.

“Exhaustion is prudential; it is required as a matter of comity,

not as a jurisdictional prerequisite.” Boozer, 381 F.3d at 935

(citations omitted). To this end, the Supreme Court has

recognized four exceptions to the exhaustion requirement:

“(1) when an assertion of tribal court jurisdiction is

‘motivated by a desire to harass or is conducted in bad faith’;

(2) when the tribal court action is ‘patently violative of

express jurisdictional prohibitions’; (3) when ‘exhaustion

would be futile because of the lack of an adequate

opportunity to challenge the tribal court’s jurisdiction’; and

(4) when it is ‘plain’ that tribal court jurisdiction is lacking,

so that the exhaustion requirement ‘would serve no purpose

other than delay.’” Elliott, 566 F.3d at 847 (quoting Nevada

v. Hicks, 533 U.S. 353, 369 (2001) (internal alteration

omitted)).

Evans contends that he is not required to exhaust tribal

remedies because the tribal court plainly lacks jurisdiction.

To determine whether tribal court jurisdiction is plainly

lacking, we analyze whether such “jurisdiction is colorable or

plausible . . . .” Elliott, 566 F.3d at 848 (quoting Atwood v.

Fort Peck Tribal Court Assiniboine, 513 F.3d 943, 948 (9th

Cir. 2008) (internal quotation marks omitted)). The

plausibility of tribal court jurisdiction depends on the scope

of the Tribes’ regulatory authority, as “a tribe’s adjudicative

jurisdiction does not exceed its legislative jurisdiction.”

EVANS V. SHOSHONE-BANNOCK LUPC 9

Plains Commerce, 554 U.S. at 330 (quoting Strate v. A-1

Contractors, 520 U.S. 438, 453 (1997)).

II. Plausibility of Tribal Court Jurisdiction

“[T]ribes do not, as a general matter, possess authority

over non-Indians who come within their borders . . . .” Plains

Commerce, 554 U.S. at 328 (citing Montana v. United States,

450 U.S. 544, 565 (1981)); see also Philip Morris USA, Inc.

v. King Mountain Tobacco Co., 569 F.3d 932, 939 (9th Cir.

2009) (“As a general rule, tribes do not have jurisdiction,

either legislative or adjudicative, over nonmembers, and tribal

courts are not courts of general jurisdiction.”). Particularly

relevant here, “[t]his general rule restricts tribal authority

over nonmember activities taking place on the reservation,

and is particularly strong when the nonmember’s activity

occurs on land owned in fee simple by non-Indians—what

[the Supreme Court has] called ‘non-Indian fee land.’”

Plains Commerce, 554 U.S. at 328 (quoting Strate, 520 U.S.

at 446).

Because Evans is an owner of non-Indian fee land, the

Tribes’ efforts to regulate him are “presumptively invalid.”

Plains Commerce, 554 U.S. at 330 (quoting Atkinson,

532 U.S. at 659). In order to regulate Evans’ land use, the

Tribes must show that at least one of two “limited”

exceptions described in Montana v. United States applies.

Atkinson, 532 U.S. at 647. Under the first exception, tribes

may regulate “nonmembers who enter consensual

relationships with the tribe or its members . . . .” Strate,

520 U.S. at 446. Under the second exception, tribes may

regulate nonmember “activity that directly affects the tribe’s

political integrity, economic security, health, or welfare.” Id.

10 EVANS V. SHOSHONE-BANNOCK LUPC

The Tribes do not argue that they may regulate Evans’

activities under Montana’s “consensual relationships”

exception.5 Thus, in order to regulate Evans’ land use, the

Tribes must show that Evans’ “conduct threatens or has some

direct effect on the political integrity, the economic security,

or the health or welfare of the tribe.” Plains Commerce,

554 U.S. at 329–30 (quoting Montana, 450 U.S. at 566). The

Tribes face a formidable burden in this respect, because “with

only ‘one minor exception, [the Supreme Court has] never

upheld under Montana the extension of tribal civil authority

over nonmembers on non-Indian land.’” Plains Commerce,

554 U.S. at 333 (quoting Hicks, 533 U.S. at 360 (emphasis in

original)). That “minor exception” is Brendale v.

Confederated Tribes & Bands of Yakima Indian Nation,

492 U.S. 408 (1989), in which the Supreme Court “permitted

a tribe to restrain particular uses of non-Indian fee land

through zoning regulations.” Plains Commerce, 554 U.S. at

333 (emphasis omitted). But neither Brendale, nor the

second Montana exception more generally, plausibly supports

tribal jurisdiction here.

A. Tribal Authority to Zone Non-Indian Fee Land

In Brendale, the Supreme Court held, by a six to three

margin, “that the Yakima Indian Nation lacked authority to

zone nonmembers’ land within an area of the Tribe’s

reservation open to the general public . . . .” Strate, 520 U.S.

at 447 n.6. “The Court also held, [five] to [four], that the

Tribe retained authority to zone fee land in an area of the

5

The Tribes suggest in passing that jurisdiction may be plausible over

Evans’ builders because they chose to “engage in commercial activities in

Indian country[.]” But the Tribes ignore the fact that the property at issue

is non-Indian fee land.

EVANS V. SHOSHONE-BANNOCK LUPC 11

reservation closed to the general public. No opinion garnered

a majority.” Id. Whereas four Justices concluded that the

Yakima Tribe lacked any authority to zone non-Indian fee

land, Brendale, 492 U.S. at 430–31 (opinion of White, J.),

three Justices determined that the Tribe could zone fee land

in all areas of the reservation. Id. at 458–59 (opinion of

Blackmun, J.). Declining to join either of these opinions,

Justice Stevens, joined by Justice O’Connor, “concluded that

the Tribe retained zoning authority over nonmember land

only in the closed area.” Strate, 520 U.S. at 447 n.6 (citing

Brendale, 492 U.S. at 443–44 (opinion of Stevens, J.)).

Justice Stevens’ opinion is controlling. See Marks v. United

States, 430 U.S. 188, 193 (1977).

Under Brendale’s controlling opinion, “the Tribes’ power

to zone each parcel of land turned on the extent to which the

Tribes maintained ownership and control over the areas in

which the parcels were located.” Hicks, 533 U.S. at 390

(citing Brendale, 492 U.S. at 438–44 (opinion of Stevens,

J.)). The Supreme Court recently emphasized the narrow

scope of Brendale, explaining that the decision merely

authorized tribal zoning “on nonmember fee land isolated in

‘the heart of a closed portion of the reservation’ . . . .” Plains

Commerce, 554 U.S. at 333–34 (quoting Brendale, 492 U.S.

at 440 (opinion of Stevens, J.) (internal alteration omitted)).

To determine whether Brendale supports tribal court

jurisdiction, we consider the character of the area in which

Evans’ property is located and the nature of Evans’ project.

Tribal zoning authority over non-Indian fee land is plausible

only if (1) there is an arguable similarity between the area

surrounding the fee land and the closed portion of the

reservation described in Brendale; and (2) the intended use of

the fee land would place the character of the surrounding area

12 EVANS V. SHOSHONE-BANNOCK LUPC

of the reservation “in jeopardy.” Atkinson, 532 U.S. at 658

(quoting Brendale, 492 U.S. at 443 (opinion of Stevens, J.)).

The area surrounding Evans’ property bears no

resemblance to the closed portion of the reservation in

Brendale. At the time Brendale was decided, only three

percent of the closed area of the Yakima reservation was

owned in fee simple. Brendale, 492 U.S. at 438 (opinion of

Stevens, J.). The closed area was mostly forested, and the

county government maintained no roads traversing this

portion of the reservation. Id. at 438–39 (opinion of Stevens,

J.). The Yakima Tribe carefully limited and monitored the

activities of nonmember visitors in the closed area, requiring

all such nonmembers to obtain a permit before entering. Id.

at 439 (opinion of Stevens, J.). Notably, “[t]ribal police and

game officers enforce[d] the courtesy permit system by

monitoring ingress and egress at four guard stations and by

patrolling the interior of the closed area.” Id. (citing Yakima

Indian Nation v. Whiteside, 617 F. Supp. 750, 738 (E.D.

Wash. 1985)).

The controlling opinion in Brendale acknowledged that

“logging operations, the construction of [Bureau of Indian

Affairs] roads, and the transfer of a relatively insignificant

amount of land in the closed area unquestionably ha[d]

diminished the Tribe’s power to exclude non-Indians from

that portion of its reservation . . . .” Brendale, 492 U.S. at

441 (opinion of Stevens, J.). Nevertheless, the closed area

“remain[ed] an undeveloped refuge of cultural and religious

significance, a place where tribal members may camp, hunt,

fish, and gather roots and berries in the tradition of their

culture.” Id. (internal quotation omitted). Against this

backdrop, Justice Stevens held that “the Tribe has authority

to prevent the few individuals who own portions of the closed

EVANS V. SHOSHONE-BANNOCK LUPC 13

area in fee from undermining its general plan to preserve the

character of this unique resource by developing their isolated

parcels without regard to an otherwise common scheme.” Id.

The area surrounding Evans’ property on the Fort Hall

Reservation is dramatically different. To begin with, the area

contains many residential properties owned and inhabited by

nonmembers. Additionally, the City of Pocatello operates the

Pocatello Municipal Airport on non-Indian fee land a short

distance from Evans’ parcel. The area is traversed by a

public road (Government Road), and includes farmland and

a gravel pit.6 In short, the area of the Fort Hall Reservation

near Evans’ property does not in any way resemble the

“undeveloped refuge” in which the Brendale Court permitted

tribal zoning of non-Indian fee land. Brendale, 492 U.S. at

441 (opinion of Stevens, J.).

The Tribes’ observation that the percentage of non-Indian

fee land in the Fort Hall Reservation is relatively low does

not change this analysis. To the contrary, the Supreme Court

has directly rejected the argument “that Indian tribes enjoy

broad authority over nonmembers wherever the acreage of

non-Indian fee land is minuscule in relation to the

surrounding tribal land.” Atkinson, 532 U.S. at 658. Rather,

the Court has explained that “the judgment in Brendale

turned on both the closed nature of the non-Indian fee land

and the fact that its development would place the entire area

6

The Tribes assert that “no right of way exists for Government Road,”

and that “unauthorized use of Government Road constitutes a trespass on

the Fort Hall Reservation.” But the Power County Highway Division, not

the Tribes, maintains this road, and it is freely accessible to the public. In

any event, the transfer of tribal land to nonmembers “must implicitly grant

the purchaser access to that property.” Brendale, 492 U.S. at 437 (opinion

of Stevens, J.).

14 EVANS V. SHOSHONE-BANNOCK LUPC

‘in jeopardy.’” Id. (quoting Brendale, 492 U.S. at 443

(opinion of Stevens, J.)).

In Brendale, the Court approved tribal efforts to prevent

a nonmember from constructing a large complex consisting

of “recreational summer cabins, on-site sewage disposal

systems, and interior access roads . . . .” Brendale, 492 U.S.

at 440 (opinion of Stevens, J.). In view of the undeveloped

character of the surrounding area, the controlling opinion

found that the proposal would undermine the Yakima Tribe’s

“general plan to preserve the character” of the closed area.

Id. at 441 (opinion of Stevens, J.). Here, by contrast, Evans

merely seeks to construct a single-family house in an area

that has already seen comparable development. Accordingly,

Brendale does not provide a plausible basis for tribal court

jurisdiction.7

B. Tribal Authority to Prevent Environmental Harms

In addition to their specific reliance on Brendale, the

Tribes contend more generally that jurisdiction is plausible

because Evans’ conduct “threatens or has some direct effect

on the political integrity, the economic security, or the health

or welfare of the tribe.” Montana, 450 U.S. at 566. To this

7

We decline the parties’ invitation to compare the area surrounding

Evans’ land to the open area of the reservation described in Brendale. The

Supreme Court’s rejection of tribal zoning power over fee land in the open

area reflects the rule that tribes generally lack authority to regulate

nonmember activity on non-Indian fee land. See Plains Commerce,

554 U.S. at 328. By contrast, the Court’s authorization of tribal zoning of

non-Indian fee land in the closed area represents a “minor exception” to

that rule. Id. at 333 (quoting Hicks, 533 U.S. at 360). Accordingly, courts

must analogize to the closed area described in Brendale to determine

whether tribal zoning authority over fee land is plausible.

EVANS V. SHOSHONE-BANNOCK LUPC 15

end, the Tribes identify a variety of alleged problems flowing

from Evans’ construction project, including: (1) groundwater

contamination; (2) improper disposal of construction debris;

and (3) increased risk of fire. The district court concluded

that these concerns plausibly support tribal jurisdiction under

Montana. We disagree.

“The burden rests on the tribe to establish one of the

exceptions to Montana’s general rule that would allow an

extension of tribal authority to regulate nonmembers on non-

Indian fee land.” Plains Commerce, 554 U.S. at 330 (citing

Atksinson, 532 U.S. at 654). For a tribe to have authority

over such nonmember conduct, “[t]he conduct must do more

than injure the tribe, it must ‘imperil the subsistence’ of the

tribal community.” Plains Commerce, 554 U.S. at 341

(quoting Montana, 450 U.S. at 566)). Thus, “Montana’s

second exception ‘does not entitle the tribe to complain or

obtain relief against every use of fee land that has some

adverse effect on the tribe.’” Burlington N. R.R. Co. v. Red

Wolf, 196 F.3d 1059, 1064–65 (9th Cir. 1999) (quoting

Brendale, 492 U.S. at 431 (opinion of White, J.)). Rather, the

challenged conduct must be so severe as to “fairly be called

catastrophic for tribal self-government.” Plains Commerce,

554 U.S. at 341 (internal quotation and citation omitted).

The Tribes fail to show that Evans’ construction of a

single-family house poses catastrophic risks.8 The Fort Hall

Reservation has long experienced groundwater

8

The Tribes identify several other purported risks, including substandard

construction practices and degradation of nearby hunting grounds and

fisheries. But these concerns are speculative, and the Tribes fail to

provide specific evidence showing that tribal regulation of Evans’ modest

construction project is necessary to avert catastrophe.

16 EVANS V. SHOSHONE-BANNOCK LUPC

contamination, and the Tribes proffer no evidence showing

that Evans’ construction would meaningfully exacerbate the

problem. Further, the Tribes’ generalized concerns about

waste disposal and fire hazards are speculative, as they do not

focus on Evans’ specific project. To the extent the district

court concluded otherwise, its findings are clearly erroneous.

See Turtle Island Restoration Network v. U.S. Dep’t of

Commerce, 672 F.3d 1160, 1165 (9th Cir. 2012) (“A finding

of fact is clearly erroneous ‘if it is (1) illogical,

(2) implausible, or (3) without support in inferences that may

be drawn from the facts in the record.’” (quoting Red Lion

Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087

(9th Cir. 2011))). Accordingly, the tribal court plainly lacks

jurisdiction, and Evans need not exhaust tribal remedies.

C. Other Sources of Tribal Authority

Finally, the Tribes argue that they may regulate Evans’

conduct under (1) the Fort Bridger Treaty of 1868, 15 Stat.

673 (1868); (2) delegated authority from Congress; (3) the

Organic Act of the Territory of Idaho, 12 Stat. 808, 809

(1863); (4) the Idaho Constitution; and (5) the Tribes’ Land

Use Policy Ordinance. The Tribes further contend that they

may regulate Evans’ land use because Power County

purportedly lacks the authority to do so, and because “no case

categorically bars the assertion of Tribal jurisdiction in this

case.” But these arguments ignore the crucial fact that Evans’

property is non-Indian fee land.

It is well settled that congressional approval of a treaty

does not endow a tribe with jurisdiction over nonmembers on

fee land. See Montana, 450 U.S. at 554, 561. Rather, “once

tribal land is converted into fee simple, the tribe loses plenary

jurisdiction over it.” Plains Commerce, 554 U.S. at 328

EVANS V. SHOSHONE-BANNOCK LUPC 17

(citing Cnty. of Yakima v. Confederated Tribes & Bands of

Yakima Indian Nation, 502 U.S. 251, 267–68 (1992)). And

none of the federal laws cited by the Tribes expressly grants

them authority over nonmembers on non-Indian fee land.

Finally, the Organic Act of the Territory of Idaho and the

Idaho Constitution provide no basis for tribal jurisdiction here

because they limit state authority over “Indian lands,” not

non-Indian fee land. State v. Allan, 607 P.2d 426, 430 (Idaho

1980) (citing Idaho Const. Art. 21, § 19) (emphasis added);

see also Knox v. State ex rel. Otter, 223 P.3d 266, 268 (Idaho

2009) (“The act of Congress of March 3, 1863, organizing the

Territory of Idaho, provides that it shall not embrace within

its limits or jurisdiction any territory of an Indian tribe

without the latter’s assent . . . .” (quoting Harkness v. Hyde,

98 U.S. 476, 477 (1878)) (emphasis added)). Indeed, the

Supreme Court held long ago that the government of Idaho

could regulate non-Indian activity within the borders of the

Fort Hall Reservation. See Utah & N. Ry. Co. v. Fisher,

116 U.S. 28, 33 (1885).9 Accordingly, we reject the Tribes’

additional arguments for asserting jurisdiction over Evans’

land use.

III. Preliminary Injunction

The district court denied Evans’ motion for a preliminary

injunction because it erroneously concluded that tribal

jurisdiction was plausible. The district court did not consider,

however, whether Evans demonstrated a likelihood of

irreparable harm, or whether the balance of equities and the

9

The Tribes cite no case law supporting their argument that “the Power

County boundary drawn over the top of the Reservation is invalid,” and

we have found none.

18 EVANS V. SHOSHONE-BANNOCK LUPC

public interest favor injunctive relief. See Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Notwithstanding Evans’ overwhelming likelihood of

success on the merits, “[a] preliminary injunction is an

extraordinary remedy never awarded as of right.” Id. at 24

(citing Munaf v. Geren, 553 U.S. 674, 689–90 (2008)).

Because “[t]he grant of a preliminary injunction is a matter

committed to the discretion of the trial judge,” Sierra On-

Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th

Cir. 1984), we remand this case to the district court for

consideration of the remaining Winter factors in the first

instance.10

CONCLUSION

Because the Tribes plainly lack the authority to regulate

Evans’ construction of a single-family house on non-Indian

fee land, the district court erred in concluding that exhaustion

is required. We therefore reverse the judgment of the district

10

The Tribes argue that Evans’ claims against certain tribal officials

were properly dismissed because Evans does not make any specific factual

allegations against them. The Tribes also assert that these Defendants are

immune from suit. But “tribal sovereign immunity does not bar a suit for

prospective relief against tribal officers allegedly acting in violation of

federal law.” Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d

1085, 1092 (9th Cir. 2007) (quoting Burlington N. R.R. Co. v. Blackfeet

Tribe, 924 F.2d 899, 901 (9th Cir. 1991), overruled on other grounds by

Big Horn Cnty. Elec. Coop., Inc. v. Adams, 219 F.3d 944, 953 (9th Cir.

2000)). Because Evans alleges that these Defendants exceeded their

authority under federal law, the Tribes’ arguments are without merit.

EVANS V. SHOSHONE-BANNOCK LUPC 19

court and remand this case for further proceedings.11

Defendants-Appellees shall bear costs on appeal. See Fed. R.

App. P. 39(a)(4).

AFFIRMED IN PART, REVERSED IN PART, and

REMANDED.

11

For the reasons set forth in the memorandum disposition filed

contemporaneously with this opinion, we affirm the district court’s denial

of Evans’ motion to strike.