Temple v. Her Many Horses, No. 5:2015cv05062 - Document 55 (D.S.D. 2016)

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

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Temple v. Her Many Horses Doc. 55 UNITED STATES DISTRICT COURT DISTRI C OF SOUTH DAKOTA T WESTERN DIVISION CURTIS TEMP L E, CIV. 1 5-5062-J L V Pla in if t , vs. ORDER CL EVE HER MANY HORSES, Super in n n P in R dge Age n te de t, e i cy, Bureau of I n a nA f r s, di ai Defe n n . da t INTRODUCTION Beore the court i pla in if Curt i Temple's ve ri ed compla in a n mot o n s t s i t d i or a temporary restra inin order ("TRO") . g (Dockets 1 & 5) . Mr. Temple iled a n add i o n a i t i al dav i a n a memora n t d dum in support of h i mot o nor a TRO . s i (Dockets 1 1 & 1 2) . Defe n n Cleve Her Ma n Horses, the P in R dge Age n da t y e i cy Super in n n iled a respo n a n a i te de t, se d dav i inoppos t o nto Mr. Temple's t i i mot o nor a TRO . i (Dockets 1 3& 1 4) . After prov d in n c e to the part i s, the i g ot i e court held a hear in o nthe matter o nAugust 27, 20 1 5 . g (Docket 9) . Attor n ey Terry Pechota appeared o nbehalf of pla in ifa n Ass i ta n U ni ed States t d s t t Attor n Megha n Roche appeared o nbehalf of defe n n ey da t. The August 27 hear in was adjour n due to the part e s' o n in sett eme n d i cuss i n g ed i go g l t s o s. (Docket 1 6) . The court reco n n the TRO hear in o nAugust 3 , 20 1 5 , after ve ed g 1 (Docket 1 8) . rece v in n icat o nthat the part e s d d n reach a settleme n i g ot i i i i ot t. Both part e s subm i ted post-hear in br i i n i t g e g. (Dockets 20, 2 1 & 22) . Both part e s subm tted add t o n suppleme n to the record alo n w th i i i i al ts g i correspo n in respo n d g ses. 29 - , 31 , 3 , 3 4 4 8 & , (Dockets 24, 24- 1 , 24-2 , 26, 27, 29, 29- 1 , 29-2, 29- 3 42) . Dockets.Justia.com Mr. Her Ma n Horses subseque n moved or the d i m i sal of Mr. y tly s s Temple's compla in o nthe bas i the court i n vested subject matter t s s ot jur i d i t o n s c i . (Dockets 3 , 33 & 4 1 ) . 2 mot o nto d i m i s. i s s (Docket 3 . 7) sell the cattle, (Dockets 4 3 4 , 4 47) . & Mr. Temple opposes the gover n me n t's Mr. Her Ma n Horses moved or perm i s o nto y s i 45) , wh c h Mr. Temple res i ted. i s (D 9 ckets 46 & The cour t held a hear in o nFebruary 1 8, 2 0 1 6, to co n der Mr. Her Ma n g si y Horses' mot o nor perm i s o nto sell the cattle as well as allegat o n of the i s i i s o n in trespass of Mr. Temple's cattle . go g FINDINGS OF FACT Mr. Temple s a ne n i rolled member of the Oglala S oux Tr b e a n a cattle i i d ra n cher o nthe P in R dge I n a nReservat i n e i di o . (Docket 1 at p . 2) . Mr. Her Ma n Horses i the Super in n n of the P in R dge Age n at P in R d ge, South y s te de t e i cy e i Dakota. I . d I nh i federal compla in Mr. Temple asserts that var ous act o n s t, i i s of Mr . Her Ma n Horses a n other tr i al actors v olated tr bal law a n wro n y d b i i d gfully depr ved h m of access to grz in perm i s to ra n u ni s 1 69 , 50 1 , 505 a n i i g t ge t d P5 1 4 . 1 Id. at 2 - 9 . Mr. Temple's lay tr bal advocate , W ll am B i leck i Sr. , i i i e , test i ed at the August 3 hear in that Mr. Temple's federal act o nco n i 1 g i cer n ed o n ra n u ni s 50 1 a n 1 69 . ly ge t d Do n ald "Duke" Bui n gto nwas awarded g raz in g perm ts or ra n u ni s 1 69 a n P50 l2 or the ive-year per i d beg innin i ge t d o g 1 Mr. Temple ra i es ma n of the same allegat o n s y i s inh i o n in l t gat o n in s go g i i i tr bal court. See Docket 1 - 1 . i 2 Because the part e s referred to ra n u ni "P50 1 " as o n "50 1 ," the court i ge t ly ." refers to ra n u ni P50 1 as "50 l ge t 2 November 1 , 20 1 2 and e n in October 31 , 20 1 7 .3 d g (Docket 1 4 - ) . 4 Mr. Her Many Horses test ied that although Mr. Bu i i ngto n graz ng perm t s became 's i i ef ect ve November 1 , 20 1 2 , they were not s g n u n l March 2 5 , 20 1 3 due to a i i ed ti , lag n complet in the paperwork. i g See Docket 1 4-4 at pp. 1 , 4, 5 & 8. On Apr l 27, 2 0 1 5, Mr. Her Many Horses sent Mr. Temple a letter by i cert i ed ma l norm n g h m that ollow n g a com p a n c n spect o no nApr l 2 2 , i i i i i i li e i i i 20 1 5, 3 cows4 and one bull belong n g to M r . Temple were graz n g n trespass on 6 i i i ra n un t 1 69 . ge i (HE 2 at p . 1 ) . 5 Mr. Her Many Horses' letter appr i ed Mr. s Temple : Th i letter w ll se v as your author zat i n to remove the l v estock. s i e i o i You have three ( 3 days to remove the l v estock or show why these ) i l vestock are not trespass n g [ i i on] th i trust property. In the event s these l vestock are n removed or other arrangeme n have been i ot ts made, t w ll be n i i ecessay to assess the penalt e s as prov d ed [ n ] i i i 25 C .F.R . § 1 66 .8 00 et al. [ c ] , a n t si d ake such other act o n as may be i n ecessary, in clud in the mpoundme n and sale of the unauthor zed g i t i l v estock t prevent cont nued trespass and to protect I n an L i o i di ands. Id. Mr. Her Ma n Horses sent Mr. Temple a second letter by cert i ed ma l o n y i i Apr l 2 7 , 20 1 5, n orm in h m that a compl a n in i i g i i ce spect o n was co n i ducted o n 3Notw thstand ng Mr. Tem p i i le's assert i ns that these graz in perm t s were o g i wrongly awarded to Mr. Bui n gto n Mr. Bu i , ngton was and st il i the current l s holder of the graz in perm ts or ra n u ni s 1 69 a n 50 1 . g i ge t d 4Because the letter o n substant ates 3 cows (20 n one locat o n and 1 6 ly i 6 i i n another) , the court i n o n 3 of Mr. Temple's cattle were n trespass o n i ds ly 6 i range un i 1 69 as of Apr l 2 2 , 20 1 5 . See d . at 1 . t i i 5The court refere n ces the hear n g exh b ts as "HE." The court ncludes i i i i spec ic page numbers or sect i n p n c i es where n i o i t ecessay. 3 April 2 2 , 20 1 5, o nra n u n 50 1 a n approximately 202 cows, 2 bulls a n 1 0 ge it d d horses were ou n to be i ntrespass . d Id. at 4. Th s letter co n n the same i tai ed war n n regardi n the pote n i g g tial impou n dme n of tres p t assi n cattle as ide n g tiied above . Id. at 5 . O nMay 4, 20 1 5 , the acti n superi n n n se n Mr . Temple a n g te de t t other letter by certiied mail i n ormi n him that a complia n i n g ce spectio nwas co n ducted o n May 4 , 20 1 5 , o nra n u n 1 69 a n approximately 1 2 cattle a n 4 horses were ge it d d ou n to be i ntrespass. d (HE 3at p. 4) . The acti n superi n n n advised Mr. g te de t Temple : You were give n the optio n to remove your livestock or co n tact my o i to show why these livestock had the right to graze upo n the ce pr opery. You have ailed to comply with these i n structio n . s Your livestock are n i n trespass ollowi n 1 66 . 80 3 a n [you] are ow g d liable or the value of products illegally removed plus a pe n aly of twice the value . Curre n tly, the value of this trespassi n is equal to g $ 1 6. 2 0 . 4 Your livestock are also subject to be impou n ded ollowi n CFR 2 5 g [sic] , part 1 66 . 808. Through this letter you are n otii e your d livestock will be impou n ded a n ytime [sic] after (5) ive days r om the receipt of this n otice if they have n bee n removed r ot om this property. There will be n further n o otices. Id. The acti n superi n n n se n Mr. Temple a seco n letter by certiied mail g te de t t d o nMay 5, 20 1 5 , i n ormi n him that a complia n i n g ce spectio nwas co n ducted o n May 4 , 20 1 5, o nra n u n 50 1 a n approximately 1 6 1 cows, 1 bull a n 1 0 ge it d d horses were ou n to be i ntrespass. d Id. at 1 . 4 This letter co n n the same tai ed war n n as the prior May 5, 20 1 5, letter except the value of the trespass was i g $3 564 . 1 1 . , Id. at 2 . O nJu n 5 , 20 1 5 , Mr. Bielecki, o nbehalf of Mr. Temple, wrote Mr. Her e Ma n Horses sayi n " [a] s you are well aware of, there [have] bee nseveral n y g otices of alleged trespass issued agai n Mr. Temple respecti n ra n u n 1 69 a n st g ge its d 50 1 , as a result of Sa n dra a n Do n d ald 'Duke' Bu in gto n complai n 's ts." 1 5-2 at p. 1 ) . (Docket Mr. Bielecki explai n ed: While Mr. Temple will co n n to pursue to isolate his cattle o n ti ue to his perso n ally ow n a n / or leased la n ed d ds, we are aski n that you g exte n further patie n with us as we further those pursuits. We d ce are aski n that you defer a n actio n agai n Mr. Temple regardi n g y s st g [the ] subject u n a n trespass pe n n the outcome of litigatio ni n its d di g the Tribal courts. Id. at 2 . O nJuly 2 , 20 1 5 , Mr. Her Ma n Horses, respo n y ded to Mr. Bielecki's Ju n 5 e d dicated the U n ited States Departme n of the I n t terior, Bureau of letter a n i n · In dia nA f airs ("BIA") "i n n to proceed with trespassi n a n impou n te ds g d dme n t procedures o nRa n U n 1 69 a n P50 1 if the livestock belo n n to Mr. Curtis ge its d gi g Temple are n removed ." ot (Docket 1 4 - 3at p. 1 ) . Mr. Her Ma n Horses y co n n ti ued "Mr. Temple does n have a n right to graze his livestock o nRa n ot y ge U n 1 69 or Ra n U n P50 1 . it ge it trespassi n g. livestock. Mr. Temple has bee nco n tacted about the Mr. Temple has bee n n otiied of our i n n to impou n his te t d If Mr. Temple refuses to remove his livestock I will have n alter n o ative but to impou n them." d Id. at 2. 5 O nAugust 1 2 , 20 1 5 , Mr . B e leck i i ece ved a nema l r i i om BIA la n d operat o n oicer Li n Westo nw th a n attached letter dated August 1 2 , 20 1 5, i s o el i wh c h Mr . B e leck isumma ri ed as stat in that "Mr . Temple had three ( 3 days to i i z g ) remove h s cattle beore mpou n i i dme n woul d beg in . . . ." t (Docket 22- 1 at if 1 0) ; see also HE 4 at p . 1 . The BI mpou n A i ded Mr . Temple's cattle o nAugust 1 9 , 20 1 5 . p . 1) . (HE 4 at A veter in i na n a bra n in ar a d d spector were prese n dur in the t g mpou n i dme n process . t I . d O nAugust 2 1 , 20 1 5, Mr . Her Ma n Horses y in ormed Mr . Temple by letter that approx mately 1 2 1 head of Mr . Temple's cattle i had bee n mpou n i ded by the BIA . Id . The August 2 1 letter was ha n d-del vered i to Holly W lso n also a lay tr i al advocate of Mr . Temple . i , b See d . at p . 7; see also i Dockets 2 1 at p . 1 5 (descr b in Ms . W l so nas Mr . Temple's lay advocate) ; 20- 1 at i g i if 3 (descr b in how Ms . W l so ngave Mr . Temple the August 2 1 letter) ; 2 2 - 1 at i g i if 8 (descr b in Ms . W lso n o n in role inthe case) . i g i 's go g The letter in ormed Mr . Temple the "l vestock w ll be sold at the Gordo n Li estock Auct i nMarket o n i i v o September 1 , 20 1 5[,] ollow in the regular c g attle sale u n less redeemed by you pr i r to the sale ." 6 o (HE 4 at p . 1 ) . Mr . Temple was in structed how to redeem the l vestock pr o r to the publ c sale . i i i Id . The BIA calculated Mr . Temple owed $ 274,402 .46 as a result of the trespass a n mpou n d i dme n . t Id . at 2 . 6The court i aware that the Gordo n Li estock Auct i nMarket i located in s v o s Gordo n Nebraska . See Gordo n Li estock Market, http : / / ww .gordo n vestoc k. , v li com . 6 The part e s in i ormed the court the Gordo n Li estock Auct i nMarket v o refused to sell Mr . Temple's cattle because t d d n wa n to be in i i ot t volved inthe pe n in l t gat i n d g i i o . O nSeptember 3 20 1 5, the mpou n , i ded cattle were moved to the Joh n nRa n so ch n ear Craword, Nebraska. (Docket 2 1 at if 5) . 0- The cattle were tested or Tr chomo n oetus, the causat ve age n of Tr i homo ni s i i as i t c a s ("Tr c h") as part of Nebraska state mport regulat o n i i i s. Tr c h i a co n i s tag o us ve n i ereal protozoa ! d i ease. s tested pos t ve or Tr c h . i i i Id . (Docket 29 at p. 1 ) . O n of Mr. Temple's bulls e Id . De nni Hughes, a Nebraska State Veter in a na n A ni al Health s ar i d m In spector, asserts " [ t]he Nebraska Departme n of Agr culture (NDA) has spec ic t i i statutory author ty to preve n a n m t gate in i t d i i troduct i nof Tr i homo ni s i in o c a s to the state ." (Docket 29 - at p. 1 ) . 2 Accord in gly, the Nebraska Departme n of t Agr culture i sued a ive - o in protocol outl inin the process by wh c h Mr . i s p t g i Temple's cattle could be released rom quara n in . t e (Docket 29- 1 at p . 1 ) . Step o n of the protocol calls or the slaughter of the Tr c h-pos t ve bull "as soo nas e i i i poss b le. " i Id . Step ive of the protocol op in es: The eas i st a n qu c kest solut o n to th i sce n o i to sh p the e d i i s ar i s i rest of the herd back to South Dakota. U n ortu n ately , the Tr c homo ni s i d ag n i a n amou n of t me elapsed mea n that i a s i os s d t i s th i group i n s s ow c n dered to be of Nebras k or g in, a n ca nn be o si a i d ot mported ba c in South Dakota legally , ' thout a nexcept o nfr i k to wi i om the South Dakota State Veter in a n, Dr. Dust in Oedekove n. ar i Id. Mr. Temple , BIA oic a ls a n the legal represe n v es met o nOctober 1 4 , i d tat i 20 1 5, to d i cuss the protocol a n related i sue s . s d s 7 (Docket 29 at p. 2 ) . On October 1 9 , 2 0 1 5, Mr. Temple, through Mr. Bielecki's afidavit, i n ormed the court that a perso nat the Joh n nRa n castrated our bulls bei n held at the so ch g (Docket 3 - 1 at p . 3 . 1 ) ra n due to the Trich quara n n ch ti e. Mr. Bielecki asserted o n of Mr. Temple's c e ows had died a n others may be missi n d g. Id. at 1 -4 . O nOctober 26, 20 1 5, Dia n Ma nn e -Klager, a n atural resources o i cer at the BIA, clariied that 1 1 4 cattle were corralled i nt h August 1 9 , 20 1 5, e (Docket 3 1 at if 3 . 4) impou n dme n of Mr. Temple's livestock. t Thereafter, 1 0 additio n a n al imals e n tered the corrals while the bra n i n d spector was worki n g a n three a n d imals escaped or a total of 1 2 1 a n imals which were shipped to the Gordo n L ivestock Auctio n7 . Id. O n cow died alo n the way, o n n calf was e g e ew bor n a n the n , d umber of impou n ded bulls remai n co n ed siste n at three. t I . d Five of the impou n ded a n imals belo n to Tammy Steel a n Trey Temple, Mr. g d Temple's spouse a n so n respectively, who received n d , otice of the sale a n have d n yet sought the retur nof their cattle . ot Id. at ii 7. O nNovember 4, 20 1 5, Mr. Bielecki, o nbehalf of Mr. Temple, a n Dr. d Me n del Miller, a South Dakota assista n state veteri n t aria n ormalized a , memora n dum of u n dersta n n regardi n their discussio n about the ha n n di g g s dli g of Mr. Temple's cattle. - (Docket 3 2) . 8 O nFebruary 2 , 20 1 6, Dr. Miller developed a protocol the state of South Dakota recomme n or the dispositio nof ds Mr. Temple's cattle quara n n i n Nebraska as well as or those i n South ti ed 7 Mr. Temple, through Mr. Bielecki, asserts that the Ba n of the West has a k priority lie no nMr. Temple's cattle a n a n proceeds rom their sale must be d y used to irst repay Mr. Temple's debt at the Ba n of the West, leavi n n surplus k g o or Mr. Temple to pay the BI i n A es. (Docket 42- 1 at p. 1 ) . 8 Dakota. See Docket 49-8. At least o n bull i nMr. Temple's remai n n South e i g Dakota herd tested positive or Trich. Id. The BIA requests the court's permissio nt o sell the cattle accordi n to its dispositio npla n which calls o the g , r immediate sale of the a n imals subject to the highest risk of spreadi n Trich and g selli n approximately 40 of the cattle or eve n g tual slaughter. See Docket 44 & · 44- 1 . I nmatters u n related to the impou n ded livestock, the BIA co n ducted subseque n complia n i n t ce spectio n o nra n u n 1 69 a n 50 1 o nSeptember 9 , s ge its d 2 0 1 5 a n September 1 6 , 20 1 5 . d See Docket 24. As of September 9, 2 0 1 5 , approximately 87 of Mr. Temple's cows a n 1 bull were observed trespassi n o n d g portio n of ra n u n 50 1 i nwhich Mr. Temple did n have a now n s ge it ot ership in terest. See Docket 24- 1 at p. 1 . No n of Mr. Temple's livestock were e observed trespassi n o nra n u n 1 69 . g ge it I d. As of September 1 7 , 20 1 5, approximately 8 1 of Mr. Temple's cows, 4 bulls, 1 steer a n 1 horse with a colt d were observed trespassi n o nra n u n 50 1 . g ge it See Docket 24-2 at p. 1 . Mr. Temple's livestock were observed trespassi n o nra n u n 1 69 . g ge it No n of e Id. O nDecember 4, 20 1 5 , approximately 46 cows a n o n bull were observed d e trespassi n o nportio n of ra n u n 50 1 i nwhich Mr. Temple did n have an g s ge it ot ow n ership i n terest. (Docket 44-2 at p. 1 ) . O nthe same date, 26 cows were observed trespassi n o nportio n of ra n u n 1 69 i nwhich Mr. Temple did n g s ge it ot have a now n ership i n terest. I . d 9 O nFebruary 1 7, 20 1 6, approximately 2 1 cows a n o n bull were observed d e trespassi n o nportio n of ra n u n 50 1 i nwhich Mr. Temple did n have a n g s ge it ot ow n ership i n terest. (HE 22 at p. 1 ) . O nthe same date, 207 cows were observed trespassi n o nportio n of ra n u n 1 69 i nwhich Mr. Temple did n g s ge it ot have a now n ership i n terest. Id. O nMay 1 4 , 2 0 1 5, the Oglala Sioux Tribal Court ("Tribal Court") e n tered a n order e n n n all defe n n i n joi i g da ts, cludi n the BIA a n Mr. Her Ma n Horses r g d y om taki n a n actio nrelated to impou n n Mr. Temple's cattle . g y di g (Docket 27- 1 ) . O nAugust 3 20 1 5, the Tribal Court dismissed with prejudice a n portio nof its , y May 1 4 , 20 1 5, emerge n temporary i n n cy ju ctio norder e n n n a n federal joi i g y actor. Id. at 2 . The Tribal Court reaso n that it did " n have jurisdictio nover ed ot the U n ited States, its age n cies, or U n ited States' employees acti n i ntheir oicial g capacities like the BIA Superi n n n te de t." Id. O nAugust 20, 20 1 5, the Supreme Court of the Oglala Sioux Natio nairmed the Tribal Court's dismissal a n d determi n tribal courts "ha[ ed ve] n jurisdictio nover the BIA, which is a narm of o the federal gover n me n t." (Docket 27-2 at p. 1 ) . The Tribal Court's May 1 4 , 2 0 1 5 , temporary i n n ju ctio norder remai n i ne f agai n all tribal e n s ect st tities a n d oicials but n the BIA or Mr. Her Ma n Horses . ot y Id. MOTION TO DISMISS The court fi co n rst siders Mr. Her Ma n Horses' motio nto dismiss. y Mr. Her Ma n Horses moved to dismiss Mr. Temple's complai n based o na lack of y t subject mat jurisdictio nor alter n ter atively or ailure to state a claim u n der Fed. 10 R. Civ. P 1 2 (b) ( l ) and 1 2 (b) (6) , respectively, depending on how the court . interpreted the motion. (Dockets 32 & 33 at p . 1 -3) . Mr. Her Many Horses' motion is premised on the same arguments raised in responding to Mr. Temple's motion or a TRO where he asserted the court is not vested with the subject matter jurisdiction necessay to adjudicate the complaint. See Docket 32 ( " his T motion is based upon arguments that have already been raised beore this Court related to P lainti f Motion or a P s reliminay Injunction and related post-hearing brie s . .") The court interprets Mr. Her Many Horses ' motion to dismiss as having been brought pursuant to Fed. R. Civ. P 1 2 (b) ( l ) seeking the dismissal of . Mr. Temple's complaint based o n a lack of subject matter jurisdiction . As was made clear in the defendant's motion to dismiss and responses to Mr. Temple's motion or a TRO , Mr. Her Many Horses has mounted a actual attack challenging the court's subject matter jurisdiction to hear Mr. Temple's complaint. " court deciding a motion under Rule 1 2 (b) ( l ) must distinguish A between a ' acial attack' and a ' actual attack. ' " Osborn v. United States, 9 1 8 F.2d 724, 729 n . 6 (8th Cir. 1 990) (citing among other cases Menchaca v. Ch y sler Credit Corp. , 6 1 3 F.2d 507, 5 1 1 (5th Cir.), cert. denied, 449 U . S . 953 ( 1 980)) . " actual attack . . . challenges the existence of subject matter A jurisdiction in act, irrespective of the pleadings, and matters outside the pleadings, such as testimony and aidavits, are considered." 11 Menchaca, 6 1 3 F.2d at 5 1 1 (citing Mortensen v. First Federal Savings & L oan Ass'n, 549 F. 2 d 884, 89 1 (3d Cir. 1 977)) (inte r nal quotation marks omitted) . 8 " n a actual attack, the court considers matters outside the pleadings . . . I and the non-moving pary does not have the beneit of 1 2 (b) (6) safeguards." Osborn, 9 1 8 F.2d at 729 n.6 (8th Cir. 1 990) (citations omitted) . " Because at issue in a actual 1 2 (b) ( l motion is the trial court's jurisdiction - very power ) its to hear the case there is substantial authoriy that the trial court is r to ee weigh the evidence and satisfy itself as to the existence of its power to hear the case." Id. at 730 (quoting Mortenson, 549 F.2d at 89 1 ) . A " istrict court has d authoriy to consider matters outside the pleadings when subject matter jurisdiction is challenged under Rule 1 2 (b) ( l ." ) Id. at 728 n.4 (citing L and v. Fin. Corp. , 6 1 9 F.2d 738, 742 Dollar, 330 U . S . 73 1 , 735 n.4 ( 1 947) ; Satz v. IT I (8th Cir. 1 980) ) . Accordingly, the court i s r to consider those matters brought ee to its attention at the TRO hearings and the parties' subsequent ilings in resolving Mr. Her Many Horses' motion to dismiss. See supra indings of f a at ct p. 2 . I. Subject Matter Jurisdiction " Federal courts are not courts of general jurisdiction and have only the power that is authorized by Article III of the Constitution and statutes enacted by si contrast, " ' n [a] acial attack' on the complaint requires the court merely to look and see if plaintif has suiciently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true or the purposes of the motion ." Menchaca, 6 1 3 F.2d at 5 1 1 (citations omitted) . 12 Cong r ess pu r suant the r . " eto ibe of Neb r aska v. Babbitt, 9 1 5 F. Winnebago T r Supp. 1 57, 1 62 (D . S . D . 1 996) (quoting Ma r ine E q uipment Management Co. v. United States, 4 F.3d 643 , 646 (8th Ci r 1 993)) (inte r . nal quotation ma r ks omit t d) . e " he th r T eshold · inquiy in eve r fede r l case is whethe rthe cou rt has y a ju r isdiction[,] and the Eighth Ci r cuit has admonished dist r judges to be ict attentive to a satisaction of ju r isdictional r equi r ements in all cases." Id. umbe rCo . 337 F.2d 2 4 , , (quoting Rock Island Millwo r Co. v. Hedges -Gough L k 26-27 (8th Ci r 1 9 64) (inte r . nal quotation ma r omitted) . ks pr oving subject matte rju r isdiction alls on the plaintif." of Hous. & " he bu r T den of VSL P td. 'ship v. Dep't , . Ur ban Dev . 235 F.3d 1 1 09, 1 1 1 2 (8th Ci r 2000) (citations omitted) . The United States Sup r eme Cou r r t ecognized that " since the ju r isdiction of the cou r to hea rthe case may depend . . . upon the decision which it ultimately t r eaches on the me r its, it is necessay that the plaintif set out in his complaint the statuto r limitation on which he r y elies." eign L r a son v. Domestic and Fo r Comme r Co , 337 U . S . 682, 690 ( 1 949) . ce M r Temple asse r the cou r is . ts t vested with subject matte rju r isdiction pu r suant to 2 8 U . S . C . § 1 33 1 , 5 U . S . C . §§ 70 1 -06, 28 U . S . C . § 1 36 1 and 28 U . S . C . § 220 1 -02 . (Docket 1 at pp. 1 -2) . M r He rMany Ho r . ses " oes not disag r that A r d ee ising Unde rju r isdiction [28 U . S . C . § 1 33 1 ] gene r ally exists,'' but a r gues " [p]laintif cannot ai r matively establish a waive rof sove r eign immuniy unde rA r ising Unde rju r isdiction." (Docket 2 1 at p. 3) . 13 A. Pre-impoundment Claims The court does not have jurisdiction to adjudicate Mr. Temple's claims stemming rom the alleged pre-impoundment conduct of Mr. Her Many Horses relating to the allocation of tribal grazing permits. Mr. Temple's pre-impoundment allegations in his federal complaint mirror his claims pending in Tribal Court. Compare Docket 1 , with Docket 1 - 1 at pp. 1 -2 2 (Mr. Temple's tri b complaint) . al Mr. Temple's allegations surrounding the tribe's grazing permit allocation process underlie his repudiation of the BIA's determination that his cattle were in trespass. The resolution of Mr. Temple's grazing permit allegations requires interpreting provisions of the Oglala Sioux Tribal Constitution and Oglala Sioux tribal ordinances. See Docket 1 at pp. 2 - . 9 " he issue of tribal exhaustion is a threshold one because it determines T the appropriate orum." td. nt'l, L v. White Earth Band of Gaming World l Ch pe Indians, 3 1 7 F.3d 840, 849 (8th Cir. 2003) . wa " he tribal exhaustion T doctrine is based on " policy of supporting tribal self-government and a self-determination[ . ]" Id. (quoting National Farmers Union Ins. Co. v. Crow Tribe of Indians, 47 1 U.S. 845, 856 ( 1 985) ) . " federal court should 'stay [ ] its A hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction. ' " Id. (quoting National Farmers, 47 1 U . S . at 857) . Tribal exhaustion " vors exhaustion of available remedies in tribal court beore a a collateral or parallel federal court action may proceed . " Id. (citations omitted) . " Exhaustion is mandatory, however, when a case its within the policy . . . . " 14 Id. " xhaustion is especially appropriate where the dispute arises out o f tribal E governmental activiy. " V, Wilson v. Bull, No . CIV. 1 2-5078-JL 20 1 4 WL 4 1 2328, at * (D . S . D . Feb. 3, 20 1 4) (citations omitted) . The court inds the 5 doctrine of tribal exhaustion applies in this case as the resolution o f Mr. Temple's pre-impoundment allegations hinge on issues of tribal law and governance and because Mr. Temple's claims are pending in Tribal Court . B. Claims Relating to the BIA's Damage Calculations Mr. Temple's claims challenging the BIA's assessment o f penalties and its cost and damage calculations are not ripe or judicial review as he has not exhausted his administrative remedies. As a general matter, two conditions must be satisied or agency action to be " nal" : First, the action must mark the consummation i of the agency's decisionmaking process - must not be o f a merely it tentative or interlocutoy nature . And second, the action must be one by which rights or obligations have been determined, or r om which legal consequences will low. Hawkes Co. v. United States Army Corps of Engineers, 782 F.3d 994 , 999 (8th Cir. 2 0 1 5) (quoting Bennett v. Spear, 520 U.S. 1 54, 1 77-78 ( 1 997)) . I f the BIA erred in its penaly assessment o r its damage calculation, this is precisely the ype of error the agency should be given an opportunity to correct beore being hailed into federal court. Se e Friends o f the Norbeck v. United States Forest Serv . , 66 1 F . 3 d 969, 974 (8th Cir. 20 1 1 ) . I t is also more eicient fo Mr. Temple to take up these disputes directly with the BIA rather than r through litigation in federal court. Id. 15 Although the BIA's assessment of penalties and cost and damage calculations are included in the amount a trespasser must pay to redeem his livestock, the correction of any such error is best left to the administrative agency specializing in that ield. See, e.g. , 2 5 CFR §§ 1 66 . 8 1 2-8 1 5 . The BIA is equipped to ascertain the value of any destroyed orage or crops or the land's lost value . This is a diferent question than determining whether the impoundment of Mr. Temple's livestock violated his due process rights . See inr a. Mr. Temple also retains the abiliy to pursue an administrative appeal of the BIA's monetary levies after the livestock are redeemed or sold . See 2 5 CFR §§ 1 66. 8 1 0, 1 66. 8 1 7-8 1 9 ; 2 5 CFR § 2 . . The court inds Mr. Temple has not exhausted his 7 administrative remedies in this regard. C. Impoundment Claims The court next examines whether subject matter jurisdiction exists to resolve Mr. Temple's claims relating to the defendant's impoundment of his cattle . Integral to the court's analysis is the doctrine of sovereign immuniy. " he waiver of sovereign immuniy is a prere q T uisite to this Court's jurisdiction over the plaintiffs complaint." 1 63 . Winnebago Tribe, 9 1 5 F. Supp. at " he basic rule of federal sovereign immunity i s that the United States T cannot be sued at all without consent of Congress." Id. ( q uoting Block v. North Dakota, 46 1 U . S . 273, 287 ( 1 983)) (internal quotation marks omitted) . " he AP waives sovereign immuniy or actions against the United States T A or review of administrative actions that do not seek money damages and provides or judicial review in the federal district courts." 16 See Middlebrooks v. United States, 8 F. Supp. 3d 1 1 69, 1 1 74 (D . S . D . 20 1 4) (citing Suburban Mortg. Assocs., Inc. v. United States Dep't of Hous. & Urban Dev. , 480 F.3d 1 1 1 6, 1 1 2 2 (Fed. Cir. 2007)) . " Sovereign immuniy d oes not bar a claim w hich is not afirmative in nature but rather only requires t defendant oice r to cease he s unauthorized action." Coomes v. Adkinson, 4 1 4 F. Supp. 975, 982 (D . S . D . 1 976) (citing State Highwa y Commission of Missouri v. Volpe, 479 F.2d 1 099, 1 1 23 (8th Cir. 1 973)) (further citations omitted) . The Administrative P rocedure Act ( " P provides : A A") A person sufering legal wrong because of agency action, or adversely afected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial rev e w thereof. An action i in a court of the United States seeking relief other than money damages and stating a claim that an . agency or an oicer or employee thereof acted or f a iled to act in an oicial capaciy or under color of legal authoriy shall not be dismissed nor relief therein be und that it is against the United States or that the denied on the gr o United States is an indispensable pary. 5 U . S . C . § 702 . " he AP is not an implied grant of subject-matter jurisdiction permitting T A federal judicial review of agency action." P referred Risk Mut. Ins. Co. v. United States, 86 F.3d 789, 792 n . 2 (8th Cir. 1 996) (citing Caliano v. Sanders, 430 U. S . A 99, 1 07 ( 1 977)) . 9 Section 702 of the AP provides judicial review of an agency 9 o the extent this district previously reasoned the AP is " indepe n T A an dent jurisdictional grant," Coomes, 4 1 4 F. Supp. at 984 , the Supreme Court subsequently determined to the contrary. Caliano, 430 U . S . at 1 07 ( " e thus W conclude that the AP does not afford an implied grant of subject-matter A jurisdiction permitting federal judicial review of agency action.") . 17 action if the person seeking review: ( 1 ) identiies some agency action; and (2) shows he has sufered a legal wrong or been adversely afected by that action within the meaning of a relevant statute . uj Id. at 7 (citing L an v. National 92 Wildlife Fed'n, 497 U.S. 87 1 , 882-83 ( 1 990) ) . The United States Court of Appeals o r the Eighth Circuit held " [t]here i s n o right to sue o r a violation o f the AP in the absence of a ' A relevant statute' whose violation orms the basis or [the] complaint." egal Serv. Id. (quoting El Rescate L v. Executive Oice of Immigration Review, 959 F.2d 742 , 753 (9th Cir. 1 9 9 1 ) ) (some internal quotation marks and further citations omitted) . " [T]o be ' adversely afected or aggrieved . . . within the mea n ing' of a statute, the plaintif must establish that the injury he complains of . . . alls within the ' zone of interests' sought to be protected by the statutoy provision whose violation orms the legal basis or his complaint." g L a n 497 U . S . at 883 (quoti n Clarke v. uj , Securities Indust yAssn . , 479 U . S . 388, 396-97 ( 1 9 87) ) . The United States Supreme Court i n structs that the " eleva n statute" in r t § 702 be i n terpreted broadly. Clarke, 4 79 US. at 396-97 (noting that the Court . previously relied on the legislative history of a much later statute rather than the rocessi n Serv. g statute alleged to have been violated) (citing Ass'n of Data P , Organizations, Inc . v. Cam p 397 U . S . 1 50 , 1 53 ( 1 970) ) . The Supreme Court also acknowledged " he trend is toward enlargement of the class of people who t may protest administrative action." rocessin g 397 U . S . at 1 54 . , Data P The Data P rocessin gCourt characterized the zone of interest test as " hether the w 18 interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question. " I d . at 1 53 . The zone o f interest test must be understood in light o f " he presumption t in avor of judicial review of agency action." Clarke, 479 U . S . at 399 . Accordingly, " h e 'zone of interest' test is a guide or deciding whether, in view of [t ] Congress' evident intent to make agency action presumptively reviewable, a particular plaintif should be heard to complain of a particular agency decision." Clarke, 479 U . S . at 399 . " he test is not meant to be especially demanding; in T particular, there need be no indication of congressional purpose to beneit the would - e plaintif." b Id. at 399-400 (citing Investment Company Institute v. Cam p 40 1 U . S . 6 1 7 ( 1 97 1 ) ) . , The Secretary o f the Dep a rtment of the Interior's ( " Secretay'') authori y to regulate and ultimately impound livestock trespassing on Indian agricultural lands must be viewed in light of the purposes and objectives of the American Indian Agricultural Resource Management Act ( " IARMA") and the United States ' A trust responsibility owed to Indian tribes and their members. § 37 1 3 . See 25 U . S . C . AIARMA charges the Secretay with : ( 1 ) " stablish[ing] civil penalties or e designat[ing] the commission of trespass on Indian agricultural lands"; (2) " responsibili ty within the Department of the Interior or the detection and 19 investigation o f Indian agricultural trespass"; and (3) to " orth responsibilities set and procedures or the assessment and collection o f civil penalties ." 10 Id . The statutory purposes o f AIARMA include " ary[ing] out the t ru t c s responsibiliy o f the United States" and " ak[ng ] part in the managemen t o f t Indian agricultural lands . . . in a manner consistent w the trust responsibiliy ith o f the Secretary and with the objectives o f the beneicial owners[ .] " 25 U .S .C . § 3702 . An objective o f AIARMA is " o assist trust and restricted Indian t landowners in leasing their agricultural lands . . . consistent with prudent management and conservation practices, and communiy goals as expressed in the tribal management plans and appropriate tribal ordinances ." § 37 1 1 (a) (6) . 25 U .S .C . The BIA " as a trust responsibiliy to protect, conserve, utilize, h and manage Indian agricultural lands consistent with its iduciary obligation and its unique relationship with Indian tribes[ . ") 25 U .S .C . § 370 1 (2) . The court inds 25 U .S .C . § 37 1 3 conferring power in the Secretay to regulate trespasses on Indian agricultural lands permits judicial review . Cf . Jones v . Freeman, 400 F .2 d 383, 389 - 0 (8th Cir . 1 968) (The Eighth Circuit held 9 the statutes delegating authoriy to the Secretary of Agriculture to protect the national orests, 1 6 U .S .C . § 55 1 and 7 U .S .C . § 1 0 1 1 , permit judicial review .) . The court further inds Mr . Temple's alleged injury, the unconstitutional impoundment of his cattle, to be within the zone of interests protected by the lD Following the enactment of the AIARMA, the BIA promulgated regulations governing trespass on Indian agricultural lands . See 2 5 CFR §§ 1 66 .800-8 1 9 . 20 statute . See Clarke, 479 U . S . at 399-400 ( " he test is not meant to be especially T demanding . . . . ) . " Section 37 1 3 and the corresponding regulations, 2 5 CFR §§ 1 6 6800-8 1 9 , were enacted with particular purp o . ses and objectives in mind upp. See Coomes, 4 1 4 F. S against which the BIA's actions are to be evalu a ted. · at 986. Implicit in the Secretay's impoundment regulations is that the owner o f alleged trespassing cattle be given adequate procedural safeguards to ensure his cattle are not unlawfully impounded. Mr. Temple's interest in insuring the impoundment regulations provide adequate safeguards and that the sa fe guards have been satisied in his case cannot be denied. Mr. Temple is an Oglala Sioux tribal member, and the United States owes iduciary obligations to Indian tribal member s in its management o f Indian agricultural lands as part o f its trust responsibilities . Id. ; see also 25 U . S . C . § 370 1 (2 ) . The BIA " oes not have despotic power [in dealings with Indians] but is d subject to applicable restrictions." Coomes, 4 1 4 F. Supp. at 986. The Oglala Sioux Tribe Supreme Court dismissed Mr. Her Many Horses r om Mr. Temple's tribal action, acknowledging that " OST Courts have no jurisdiction over the e deral government." f (Docket 27-2 at p. 2) . In Mr. Temple's fe deral case, Mr. Her Many Horses asserts the doctrine of sovereign immuniy is jurisdictional in nature so this court also lacks the subject matter jurisdiction necessay to eva uate the lawfulness of the impoundment of Mr. Temple's cattle until a fter l they are sold. However, the Eighth Circuit when evaluating the impoundment procedures of the National Forest Service held that " [e]ven though the Secretary 21 acted within his authoriy in promulgating the regulation, he has no right to claim sovereign immunity against a landowner who claims improper impoundment." Jones, 400 F.2d at 389 (emphasis added) . Mr. Her M any Horses next asserts the court lacks jurisdiction over Mr. Temple's complaint because the BIA has not rendered a inal decision in the case. Se ction 704 of the A P provides " A [a]gency action made reviewable by statute and inal agency action or which there is no other adequate remedy in a court are s u ect to judicial review." bj 5 U . S . C . § 704 . With regard to the interplay between § 702 and § 704 of the AP the Eighth Circuit previously A, rejected the Secretay of the Department of the Interior's contention that § 702 " xists only to allow i e udicial ] review of a inal agency decision." See Red L ake Band of Ch pe Indians v. Barlow, 846 F.2d 474, 475 (8th Cir. 1 9 88) . wa The court in Red L ake held that " he waiver of sovereign immunity t contained in section 702 is not dependent on the application of the procedures and review standards of the AP A. It is dependent on the suit against the government being one or non-monetary relief." Id. at 4 76; see also Muniz-Muniz v. United States Border P atrol, 74 1 F.3d 668, 673 (6th Cir. 2 0 1 3) (collecting cases) (noting that " [o]ther circuits . . . are unanimous in their conclusion that a plaintif who seeks non-monetary relief against the United States need not also satisfy the requirements of § 704 of the AP beore there is a A w aiver of sovereign immunity.") ; Delano Farms Co. v. Caliornia Table Grape Comm'n, 655 F.3d 1 337, 1 344 (Fed. Cir. 20 1 1 ) (holding that " section 702 of the 22 AP waives sovereign immuniy or non - onetary claims against federal A m agencies . . . . It is not limited to ' agency action' or 'inal agency action, ' as t h ose terms are deined in t h AP e A.") . " [S]ection 704's 'inal agency action' requirement only limit[s] t h viabiliy e of claims made under t h AP and because section 702 operate[s] as a waiver or e A, all nonmonetary claims, including t h ose claims not made under t h AP section e A, 704 did not limit section 702 's waiver of sovereign immuniy." Treasurer of New Jersey v. United States Dep't of Treasu y 684 F.3d 382, 398 ( 3 Cir. 2 0 1 2) ; see d , also Trudeau v. Fed. Trade Comm'n, 456 F.3d 1 78, 1 87 (D . C . Cir. 2006) ( h olding t h § 702 's waiver of sovereign immuniy " pplies regardless of w h h t h at a et er e [agency's] press release constitutes 'inal agency action . ' ") ; Winnebago Tribe, 9 1 5 F. Supp. at 1 65 ( " h waiver of sovereign immuniy in § 702 is not limited to suits T e broug h under t h AP t e A.") . Here, Mr. Temple does not seek m oney damages but rat h only t h h impounded cattle be returned to h er at is im. T h court inds t h d e e efendant h waived sovereign immuniy and t h it is as at vested wit hsubject matter jurisdiction to adjudicate Mr. Temple's Fift h Amendment due process claims relating to t h impoundment of h cattle under e is 28 U . S . C . § 1 33 1 . See Coomes, 4 1. 4 F. Supp. at 983 ( " Consequently, since plaintifs do not ask [or] money damages and, given inaliy, t h government e expressly consents to suit, t h ere appears no reason pertaining to sovereign immunity w h t h Court s h y is ould not proceed to consider t h plaintifs' claims.") . e Mr. Temple adequately alleged Mr. Her Many Horses took h cattle wit h is out due 23 process of law in violation of the Fifth Amendment of the Constitution. Furthermore, Mr. Temple's " due process claim . . . [also] invokes the power of t h e federal courts t grant injunctive relief against a department of the executive o branch of the federal government." Id. With regard to Mr. Temple's administrative claim relating to the impoundment of his cattle, Mr. Her Many Horses asserts the BIA's decision does not become inal and Mr. Temple's appeal rights do not vest until Mr. Temple redeems his cattle . (Docket 2 1 at p . 1 8) . As a general matter, two conditions must be satisied or agency action to be " inal": First, the action must mark the consummation of the agency's decisionmaking process - must not be of a merely it tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or rom which legal consequences will low. Hawkes Co. v. United States Arm y Corps of Engineers, 782 F.3d 994, 999 (8th Cir. 2 1 5) (quoting Bennett v. Spear, 520 U . S . 1 54, 1 77-78 ( 1 997) ) . 0 For all practical purposes, once Mr. Temple's cattle are sold they are gone and all may be slaughtered . (Docket 44- 1 ) . Mr. Temple i s a cattle rancher who derives his livelihood based on his ability to maintain and grow his cattle herd . Because Mr. Temple's cattle are now considered be a part of a Trich infested herd, approximately 40 of the cattle will be sold or immediate or near -mmedia t i e slaughter and approximately 67 will be sold with the disclosure that they come rom a Trich infested herd, causing the cattle to be marketed and sold at a much lower sale price than normal. without restriction. Id. See Docket 44- 1 . Approximately 20 will be sold A potential action challenging the BIA's damage 24 calculation and penaly assessment is a small consolation to Mr . Temple who is acing the economic realities of the destruction of a cattle herd that took years to build, especially when the location at which the h e contracted Trich canno t yet rd be accurately determined. 11 Even if the impoundment is subsequently determined to be unlawful, Mr. Temple will have lost not only those cattl e but also a ofspring they could have ny generated and will receive abnormally low recompense due to the Trich infestation. The legal and economic consequences r om the sale of the cattle will all immediately on Mr. Temple, not months or years later after the adjudication of a subsequent damages claim. See State of S . D . v. Andrus, 6 1 4 F.2d 1 1 9 0 , 1 1 9 5 n . 1 (8th Cir. 1 980) (citing McKart v . United States, 395 U . S . 1 85 ( 1 969) ( " he doctrine of exhaustion of administrative remedies is not a strict T jurisdictional requirement, but rather a l exible concept which must be tailored to the circumstances of the particular case .") . Notwithstanding Mr. Temple's subsequent legal remedy challenging the validiy of the BIA's d a mage calculation, under the unique acts of this case, the llCounsel or Mr. Her Many Horses asserts Mr. Temple's herd contracted Trich prior to their impoundment, while counsel or Mr. Temple asserts the cattle contracted Trich after impoundment. Counsel or Mr. Temple also points out that the BIA illegally exported the cattle to Nebraska by ailing to ollow the Nebraska Trich import requirements . (HE 8) . Regardless, approximately 1 07 of th e 1 27 cattle identiied in Mr. Her Many Horses' disposition plan will be marketed and sold at signiicantly reduced prices due to the Trich infestation. The court also received testimony that because the cattle have been in Nebraska or over 30 days, only certain of the cattle - speciic purposes, namely or entering the human ood chain can be brought back into the state of South Dakota. 25 sale of Mr. Temple's impounded cattle marks the culmination of the BIA's impoundment proceedings. The result of which is Mr. Temple no longer owning the livestock and, in this case, many of the livestock being slaughtered . Mr. Her Many Ho r ses' actions in impounding Mr. Temple's livestock constitute a inal agency action permitting judicial review. See Jones, 400 F.2d at 390 (granting judicial review ollowing the impoundment of livestock) . The rationale underlying administrative exhaustion avors the court's review of Mr. Temple's impoun d ment claims. Should Mr. Her Many Horses or the Tribal Courts subsequently determine Mr. Temple's cattle were wrongfully impounded, the BIA's abiliy to correct its mistake is necessarily limited as the cattle already will have been sold or slaughtered. F.3d at 974. Friends of the Norbeck, 66 1 To the extent ancillary litigation can be avoided, eiciency also avors addressing Mr. Temple's impoundment claims prior to the sale of the cattle. Id.; cf. Coomes, 4 1 4 F. Supp. at 988 (inding the BIA's decision to be inal despite plaintifs not having fully exhausted their administrative remedies) . The court inds it is vested with subject matter jurisdiction pursuant to 28 U . S . C . § 1 33 1 to adjudicate Mr. Temple's AP claim stemming r A om the impoundment of his cattle . 12 See Goodace v. Grassrope, 708 F.2d 335, 338 (8th Cir. 1 983) (holding § 1 33 1 " onfers general jurisdiction on federal courts to c review federal agency actions subject only to preclusion-of - eview statutes. r We 12 The court notes Mr. Her Many Horses stipulated that jurisdiction exists under § 1 33 1 . Because the court determined subject matter jurisdiction exists under § 1 33 1 , it need not examine the issue of subject matter jurisdiction under Mr. Temple's other asserted bases, 28 U . S . C . §§ 1 36 1 and 220 1 -02 . 26 k n of n statute precludi n judicial review of BIA actio n . . . . ) (i n n ow o g s ter al " quotatio nmarks omitted) ; see also Coomes, 4 1 4 F . Supp. at 983 . The court de n Mr. Her Ma n Horses' Rule 1 2 (b) ( l ) motio nto dismiss to t exte n it ies y he t seeks to dismiss Mr. Temple's Fifth Ame n dme n due process claims a n AP t d A claim relati n to the impou n g dme n of his livestock. t Havi n determi n the defe n n waived sovereig nimmu n g ed da t iy, the court n eed n a n ot alyze whether Mr. Her Ma n H y orses' actio n co n s stitute ultra vires co n duct such that his actio n would be excepted r s om the protectio nof sovereig n immu n . iy See, e .g ., Muirhead v. Mecham, 427 F.3d 1 4 , 1 8 ( 1 st Cir . 2 005) (The court irst co n sidered whether there had bee na waiver of sovereig nimmu n ity beore a n alyzi n whether there was a nexceptio nto the sovereig nimmu n g iy 90 i g e doctri n . ) ; see also L e arso n 337 U . S . at 689 - (outli n n the test to determi n , whether a federal o fi cer's actio n are excepted rom the protectio nof sovereig n s immu n ; Joh n nv. Mathews, 539 F.2d 1 1 1 1 , 1 1 24 (8th Cir. 1 976) (same) . iy) so The court n ext exami n the merits of Mr. Temple's impou n es dme n claims i nlight t of his motio nor a TRO . TRO CONCLUSIONS OF LAW A prelimi n ay i n n ju ctio nis a nextraordi n ay remedy, a n the burde nis o n d the mova n to show relief should issue. t ewis, 346 F.3d 84 1 , Watki n I n . v. L s c 844 (8t h Cir. 2003) (citatio n omitted) . s The district court has sou n discretion d to gra n or de n such relief. t y Dataphase Systems, I n . v. C LSystems, I n . , 640 c c F.2d 1 09 , 1 1 4 n8 (8th Cir. 1 98 1 ) (en bane). . 27 Whe nruli n o na motio nor a g temporary restraining order or preliminary injunction the court must consider: " 1 ) the threat of irreparable harm to the moving pary; (2) the balance of this ( harm with any injuy a preliminary injunction would inlict on other parties; (3) the likelihood of success on the merits; and (4) the public interest." P lanned P arenthood Minnesota, N. Dakota, S . Dakota v. Daugaard, 799 F. Supp. 2d 1 048, 1 053 (D . S . D . 2 0 1 1 ) (citing Dataphase, 640 F. 2d at 1 1 3) . " [W]hen weighing these actors to determine whether the extraordinary relief of a preliminary injunction should be granted - single actor is in itself no dispositive. " National Wildlife Federation v. Harvey, 440 F. Supp. 2d 940, 958 td (E. D . Ark. 2 0 06) (citing Calvin Klein Cosmetics v. P arfums de Coeur, L . , 824 F.2d 665, 667 (8th Cir. 1 987) ) . "A o f the actors must be considered to ll determine whether the balance weighs towa r granting the injunction." ds National Wildlife Federation, 440 F. Supp. 2d at 9 58 (citing Dakota Industries, Inc. v. Dakota Sportswear, Inc . , 988 F.2d 6 1 , 6 4 (8th Cir. 1 993) ) . I n deciding whether to grant a preliminary injunction, 'likelihood of success on the merits is most signiicant. ' " Minnesota Ass'n of Nurse Anesthetists v. Uni y Hosp. , 59 F.3d 80, 83 (8th Cir. 1 995) (quoting S & M Constructors, Inc . v. Foley Co., 959 F.2d 97, 98 (8th Cir.) , cert. denied, 506 U.S. 863 ( 1 992)); see also Chicago T Stadium Corp. v. Scallen, 530 F.2d 204, 206 (8th Cir. 1976) ( " he two most critical actors or a district court to consider in determining whether to grant a preliminary injunction are ( 1 ) the probability that plaintif will succeed on the merits and (2) whether the plaintif will sufer irreparable harm if an injunction is 28 not granted.") . " plaintif is required to make only a prima acie showing that A there has been an invasion of its rights and that a preliminay injunction is essential to the assertion and preservation of those rights. " L ivestock Mktg. Ass'n v. U . S . Dep't of Agric. , 1 32 F . Supp. 2 d 8 1 7, 824 (D . S . D . 200 1 ) (citations omitted) . I. The court addresses each actor separately. Likelihood of Success on the Merits A. Appropriate Standard Mr. Temple seeks to enjoin the actions of Mr. Her Many Horses which were carried out pursuant to the BIA's regulatoy procedure ound in 25 CFR §§ 1 66 . 800 - 1 9 . 8 A pary seeking to enjoin government action based on a presumptively reasoned democratic process must make a threshold showing that it is "ikely to prevail on the merits ." l arenthood, 530 F.3d at 733 . P lanned P The Eighth Circuit reasoned this " ore rigorous standard ' m relects the idea that governmental policies implemented through legislation or regulations developed through presumptively reasoned democratic processes are entitled to a higher degree of deference and should not be enjoined lightly. ' " 1 3 Id. at 732 (quoting Able v. United States, 44 F.3d 1 28 , . 1 3 1 (2d Cir. 1 995) (per curiam) . arenthood, After noting that only a state statute was beore it in P lanned P the Eighth Circuit endorsed the Second Circuit's analysis in determining " o t what extent the challenged action represents ' the full play of the democratic 1 3The P lanned P arenthood court noted that district courts should employ " he amiliar ' t air chance of prevailing' test where a preliminay injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes ." Id. 29 process[ , ]' " in cases where a preliminary injunction is sought to enjoin federal administrative action . Id. at n.6. (quoting Able, 44 F.3d at 1 3 1 -32) . In Able, the Second Circuit determined the legislation implementing the Department of Defense's " Don't Ask, Don't Tell" policy was in the public interest and a suit seeking to enjoin the resulting investigations and discharge proceedings required plaintifs to satisfy the higher likelihood of success standard. at 1 30-33 . See Able, 44 F.3d The Second Circuit reasoned: [W]here the moving pary seeks to stay government action taken in the public interest pursuant to a statutoy or regulatory scheme, the district court should not apply the less rigorous fair-ground-or-litigation standard and should not grant the injunction unless the moving pary establishes, along with irreparable injuy, a likelihood that he will succeed on the merits of his claim. Id. at 1 3 1 (internal quotation marks omitted) (quoting P lza Health L aboratories, erales, 878 F.2d 577, 580 (2d Cir. 1989) . Inc . v. P The Able court concluded: [W]here the full play of the democratic process involving both the legislative and executive branches has produced a policy in the name of the public interest embodied in a statute and implementing regulations, [its] role in reviewing that determination or the purpose of deciding whether to apply the " serious questions" or "ikelihood of l success" standard is severely limited ." Id. The administrative action Mr. Temple seeks to enjoin involved the full play of the democratic process, and he is required to satisfy the more rigorous "ikely l to prevail on the merits" standard. Congress delegated authoriy to the Secretary to regulate trespasses on Indian agricultural lands. 30 2 5 U . S . C . § 37 1 3 . The purpose of the statute is or the United States to carry out its trust responsibiliy in the management of l ndian lands or the beneit of l ndian peoples and or the preservation of Indian agricultural lands. See 25 U . S . C . §§ 370 1 -02 . The trespass regulations at issue were properly enacted to implement this grant The actions challenged by Mr. Temple received " he full play of the t of authoriy. democratic process" and his motion to enjoin those actions requires him to show that he is likely to prevail on the merits of his claims. B. Fif th Amendment Due Process Claims Mr. Temple asserts the impoundment of his cattle violates his Fifth Amendment due process rights. " [D]ue process . . . is not a technical conception with a ixed content unrelated to time, place and circumstances," but rather is " lexible and calls or such procedural protections as the particular situation demands ." Mathews v. Eldridge, 424 U . S . 3 1 9 , 334 ( 1 976) (internal quotation marks and citations omitted) . In determining whether Mr. Temple's due process rights were violated, the court weighs ( 1 ) " he importance of the private interest t and the length or inaliy of the deprivation" ; (2) " he likelihood of governmental t error"; and (3) " he magnitude of the governmental interests involved ." t L ogan v. Zimmerman Brush Co., 455 U.S. 422, 434 ( 1 982) ; see also Mathews, 424 U . S . at 335. The court is mindful that " he root requirement of the Due P t rocess Clause" is that " individual be given an opportuniy fo a hearing be an r fore he is deprived of any signiicant propery interest." Cleveland Bd. of Educ. v. L oudermill, 4 70 31 U . S . 532, 542 ( 1 985) (internal quotation marks and citations omitted; emphasis in original) . However, a pre-deprivation hearing is not required in all circumstances . See Zinermon v. Burch, 494 U . S . 1 1 3 , 1 28 ( 1 990) ( " n some circumstances, I however, the Court has held that a statutory provision or a postdeprivation [sic ] hearing, or a common-law tort remedy or erroneous deprivation, satisies due process.") . Mr. Temple ailed to demonstrate he is likely to prevail on the merits of his claim that the BIA impoundment regulations violate his due process rights. Although Mr. Temple has a substantial interest in maintaining his propery interest in the impounded cattle, especially because they are income- generating animals, the risk of governmental error is low. See Klump v. Babbitt, 1 08 F.3d 1 385 (9th Cir. 1 997) .1 4 The BIA impoundment regulations require a detailed trespass notice be provided to the alleged trespasser. 25 CFR § 1 66 . 803 . A person who receives a trespass notice is allowed to contact the BIA and explain why the notice is in error. Id. § 1 66.804 . The alleged trespasser is warned of the actions the BIA I may take and under what conditions those actions will be taken. §§ 1 66 . 806-807. 2 5 CFR The trespasser is notiied of the BIA's intent to impound the 1 4Although Klum pis an unpublished case, the Ninth Circuit recently reairmed the due process analysis set orth in Klum p See Yowell v. Abbey, . W 532 F. App'x 708, 7 1 0 (9th Cir. 2 0 1 3) , cert. denied, 1 3 5 S . Ct. 48 (20 1 4) ( " e conclude, or the reasons we have previously set orth, that the Bureau of L and Management ( " L B M") was not required to provide a pre-deprivation hearing.") . M The Klum pcourt's analysis of the BL 's impoundment regulations or trespassing livestock is directly on point with the issues beore this court. 32 livestock. Id. § 1 66.808. The trespasser is given notice of the BIA's sale of the impounded livestock and how the property can be redeemed prior to the public sale. Id. § 1 66 . 809-8 1 0 . Courts have r equently upheld the validity of similar impoundment regulations . The Eighth Circuit previously held the Secretary o f Agriculture was vested with the implied authority to promulgate impoundment regulations or the United States Forest Service. Jones, 400 F.2d at 388 . In Jones, the court held the Secretary of Agriculture had the authoriy to impound plaintifs ' razorback hogs which were caught oraging in the Ozark National Forest. 385, 388-89 . Id. at The Eighth Circuit reasoned the right to enjoin or trespass was implied because the "the United States, as a proprietor, has all the remedies available to it that a landowner has at common law." Id. at 388. The impoundment regulations at issue in Jones, 36 CFR § 26 1 . 1 3 , 15 employ a regulatoy procedure or the impoundment and disposal of unauthorized livestock that is similar to the impoundment regulations at issue in this case . The Fifth Circuit reached the same conclusion. States, 48 1 F.2d 6 1 5, 6 1 7 (5th Cir. 1 973) . See McVay v. United In McVay, the Forest Service impounded nine of plainti f cattle which were ound trespassing on the s Kisatchie National Forest. Id. at 6 1 6. P laintif asserted the regulations 16 15Although Jones references regulations contained in 36 CFR § 26 1 . 1 3 , the applicable regulations have subsequently been reorganized under 36 CFR § 262 . 1 0 . 16The applicable regulation is 36 CFR § 262 . 1 0 . 33 under which the cattle were impounded violated his Fifth Amendment due process rights because no provision was made or notice and a hearing prior to the impoundment or or the opportunity to contest the validiy of the claimed expenses. Id. The Fifth Circuit, citing Jones, determined the Secretay of Agriculture was authorized by Congress " o prevent trespassers and otherwise t regulate the use and occupancy of propery in the public domain, including the National Forests," and the regulations did not violate plaintifs Fifth Amendment due process rights . Id. at 6 1 7 . The Ninth Circuit reached the same conclusion in the context o f B L M regulations governing the impoundment and disposition of trespassing livestock. 17 See, e.g. , Bedke v. Salazar, 540 F. App'x 60 1 (9th Cir. 20 1 3) , cert. denied sub nom . Bedke v. Cassia Cn y. Sheriffs Dep't, 1 34 S. Ct. 2300 (20 1 4) . The Ninth Circuit went so ar as to note " [t]he impoundment of cattle pursuant to [the B L 's] regulations has never been held invalid." M Id. at 602 . The B L 's M regulations governing the impoundment and disposition of trespassing livestock are similar to those employed by the BIA, namely in that neither provides or a pre-impoundment hearing. Compare 43 CFR §§ 4 1 50. 1 to .4-5, with 2 5 CFR §§ 1 66 . 800-8 1 9 ; see also Klum p 1 08 F.3d at 1 385. 1 8 , 17The BL , like the BIA, is a subdivision of the Department of the Interior. M 1 8Buttressing the court's denial of defendant's motion to dismiss Mr. Temple's impoundment claims is the act that neither the Jones, Bedke, Klump, nor McVay courts dismissed the plaintifs' complaints challenging the agencies ' impoundment o f livestock o r lack of subject matter jurisdiction. 34 The BIA has a substantial interest and a trust responsibiliy to preserve and protect Indian agricultural land. Klum p 1 08 F.3d at 1 385. , In light of the trespasser's opportuniy to dispute the trespass, the multiple notices, the trespasser's opportuniy to redeem the livestock, and the BIA's substantial interest in preserving Indian agricultural land, the court inds Mr. Temple ailed to demonstrate he is likely to succeed on the merits of his Fifth Amendment due process claim relating to the BIA's impoundment regulations. 1 9 Mr. Temple asserts because the BIA ailed to provide him with adequate notice under the regulations , his due process rights were violated. " he T fundamental requisite of due process of law is the opportuniy to be heard ." Mullane v. Cent. Hanover Bank & Trust Co., 339 U . S . 306, 3 1 4 ( 1 950) (internal quotation marks omitted) (quoting Grannis v. Ordean, 234 U . S . 385, 394 ( 1 9 1 4) ) . " o be constitutionally adequate, due process requires 'notice reasonably T calculated, under all the circumstances, to apprise interested parties of the pendency of the action and aford them an opportuniy to present their objections. "' United States v. Colon, 993 F. Supp. 4 2 , 44 (D .P R. 1 998) (quoting . United States v. Giraldo, 45 F . 3d 509 , 5 1 1 ( 1 st Cir. 1 995) (citing Mullane, 339 U.S. at 306) ) . 19 Mr. Temple also ailed to demonstrate he is likely to succeed on his arguments relating to his abiliy to appeal the BIA's trespass determination as 25 CFR § 1 66. 803 (c) explicitly exempts BIA trespass determinations rom appeal. The impoundment regulations do not require Mr. Temple be given a notice of appeal . See 25 CFR §§ 1 66. 800-8 1 9 . Mr. Temple retains the ability to pursue a subsequent administrative appeal and legal remedy challenging the costs, penalties and damage calculations associated with the redemption of the livestock. 35 T h BIA sent letters by certiied mail to Mr. Temple's h e ome address on April 27, May 4, and May 5, 20 1 5, info rming h im h livestock on range units 1 69 is and 50 1 were in trespass. (HE 2 & 3). T h April 27 letters inormed Mr. e Temple h must remove t h trespassing cattle " r s h w h t h e e o ow y ese livestock are not trespassing [on] t h trust propery." is (HE 2 at pp. 1 , 5) . T h May 4 and 5 e letters inormed Mr. Temple h cattle were in trespass, h h ive days to is e ad remove t h em, and t h no furt h notices would ollow. at er (HE 3 at pp. 2 , 4) . On July 2 , 20 1 5, Mr. Her Many Horses responded to a letter rom Mr. Bielecki and conirmed t h BIA considered Mr. Temple's livestock to be in trespass, warned e t h BIA would proceed wit hits impoundment procedures and provided Mr. e Temple wit hanot h opportuniy to remove h cattle . er is On August 1 2 , 20 1 5 , Mr. Weston inormed Mr. Bielecki via email t h Mr. Temple h t h at ad ree days to remove h cattle beore t h BIA would begin impoundment. is e Mr. Temple's cattle remained on range units 1 69 and 50 1 . Mr. Temple's livestock ultimately were impounded on August 1 9 , 20 1 5 . On August 2 1 , 20 1 5 , a letter inorming Mr. Temple of t h impoundment was sent e by certiied mail to Mr. Temple's h ome address. (Docket 1 4-7 at p . 1 ) . t h August 2 1 impoundment letter was h e and-delivered to I olly Wilson. 1 4-7 at p. 7) . A copy of (Docket A copy of t h August 2 1 impoundment letter was also sent by e regular mail to Terry P h ec ota, Mr. Temple's attorney in t h action, and to Mr. is Bielecki. (Docket 1 2 at p. 1 6) . 36 Mr. Temple's longstanding disagreement with the BIA and tribal oicials over his rights to grazing permits or range units 1 69 and 50 1 was apparent at the TRO hearing. Mr. Her Many Horses testiied he believed Mr. Temple's cattle had been in trespass since 20 1 3, the year in which Donald Bufington's grazing permits to those range units were signed. Mr. Temple, through Mr. Bielecki, iled a claim beore the Interior Board of Indian Appeal ( "BIA") challenging the I 0 allocation of the grazing permits to range units 1 69 and 50 1 . 2 at p. 1 . See Docket 1 5- 2 In his June 5 letter, Mr. Bielecki acknowledged several notices of trespass that were issued against Mr. Temple and attributed the trespasses to Mr. Temple's lack of fencing to isolate his livestock on his individually allotted land. Id. at 2 . Mr. Bielecki requested Mr. Her Many Horses " xtend further e patience" while Mr. Temple isolated his livestock to his allotted land. Id. Mr. Temple cannot now claim to be surprised by the impoundment of his cattle. The BIA provided Mr. Temple with constitutionally adequate notice of the impoundment of his livestock. Mr. Temple ailed to demonstrate he is likely to succeed on the merits of his due process claim relating to a lack of notice. C. APA Claim Mr. Temple asserts the impoundment of his livestock was arbitrary or capricious. § 706(2 ) . The court reviews Mr. Temple's administrative claim under 5 U . S . C . " ection 706(2)(A) requires a inding that the actual choice made was S 0 2 Mr. Temple voluntarily dismissed this action (IBIA Docket No . 1 3- 1 49) to pursue his claims in Tribal Court, in part, because the contested issues involved matters pertaining to the Oglala Sioux Tribe's constitution and tribal ordinance s . . Id . 37 not 'arbitray, capricious, an abuse of discretion, or otherwise not in accordance with law. ' " Citizens to Pres. Overton Park, Inc . v. Volpe, 40 1 U . S . 402, 4 1 6 ( 1 97 1 ) , abrogated on other grounds by Caliano, 430 U . S . at 99 (quoting 5 U . S . C . § 706(2) (A) ) . "To make this inding the court must consider whether the decision was based on a consideration of the relevant actors and whether there has been a clear error of judgment." Id. (citations omitted) . "Although this inquiry into the acts is to be searching and careful, the ultimate standard of review 1s a narrow one. The court is not empowered to substitute its judgment or that of the agency." Id. "The Eighth Circuit Court of Appeals has characterized the test as requir[ing] that the agency decision be supported by a rational basis." Coomes, 4 1 4 F. Supp. at 989 (citing First National Bank of Fayetteville v. Smith, 508 F.2d 1 37 1 , 1 376 (8th Cir. 1 974)) . "The pary challenging the agency decision must show that the decision constitutes 'willful and unreasoning action, without consideration and in disregard of the acts or circumstances of the case . ' " (quoting First National Bank of Fayetteville, 508 F.2d at 1 376) . Id. Based on the prior analysis and in light of the many warnings Mr. Temple received, the court cannot characterize Mr. Her M any Horses' impoundment actions as willful and unreasoning or unsupported by a rational basis . Mr. Temple ailed to demonstrate he is likely to succeed on the merits of his APA claim. 38 II. The Threat o f Irreparable Harm It is well established that a party is entitled to equitable relief only if there is no adequate remedy at law. 374, 38 1 ( 1 992) . Morales v. Trans World Airlines, Inc . , 504 U . S . The district court should view the irreparable harm actor as weighing against the issuance of an injunction if there is an adequate remedy at law and the harm can be remedied through money damages. Adam-Mellang v. Apartment Search, Inc . , 96 F.3d 297, 300 (8th Cir. 1 996) (inding preliminary injunctive relief unavailable where a plaintif had "an adequate remedy at law, namely, the damages and other relief to which she will be entitled if she prevails") . Failure to show irreparable harm is an independently suicient ground upon which to deny a TRO or preliminary injunction. See id . at 299; Gelco Corp. v. Coniston Partners, 8 1 1 F.2d 4 1 4 (8th Cir. 1 987) . "In order to demonstrate irreparable harm, a pary must show that the harm is certain and great and of such imminence that there is a clear and present need or equitable relief." Iowa Utilities Bd. v. F. C . C . , 1 09 F.3d 4 1 8, 4 2 5 (8th Cir. 1 996) . "The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Band, Inc . v. Jack's Tire & Oi, Inc . , 1 90 F.3d 924, 926 (8th Cir. 1 999) (quoting Beacon Theatres, Inc. v. Westover, 359 U . S . 500, 506-07 ( 1 9 59)) . When there is an adequate remedy at law, a preliminary injunction is not appropriate . Modern Computer Sys., Inc. v. Modern Banking Sys., Inc . , 87 1 F.2d 734, 738 (8th Cir. 1 989) . "Once a court determines that the movant has ailed to show irreparable harm absent an 39 injunction, the inquiry is inished and the denial of the injunctive request is warranted." Gelco Corporation, 8 1 1 F.2d at 420. "Courts have . . . ound irreparable harm where a pary is .threatened with the loss of a business and customer goodwill. " Nokota Horse Conservan, Inc. v. Bernhardt, 666 F. Supp. 2d 1 07 3 , 1 080 (D . N . D . 2 009) (citing Tom Dohery Assocs., Inc . v. Saban Entm't, Inc . , 60 F.3d 27, 37 (2d Cir. 1 995); Ryko Mfg. Co. v. Eden Servs. , 759 F. 2d 67 1 , 673 (8th Cir. 1 985) (afirming district court's inding that irreparable harm was shown and injunction was warranted when a distributor would possibly be orced out of business) ) ; Semmes Motors, Inc. v. Ford Motor Co . , 429 F.2d 1 1 97, 1 205 (2d Cir. 1 970) (internal quotation marks omitted) (" [T]he right to continue a business in which [plaintiffs] had engaged or tweny years and into which his son had recently entered is not measurable entirely in monetay terms; [plaintifs] want to sell automobiles, not to live on the income rom a damages award . . . . Moreover, they want to continue living . . . . [A] judgment or damages acquired years after his ranchise has been taken away and his business obliterated is small consolation.") . The parties do not dispute Mr. Temple will be injured if approximately 1 1 6 of his cattle are sold . (Docket 34- 1 ) . However, except or Mr. Temple's conclusory assertion that " [i]f [his] cattle are sold [his] entire livelihood will be threatened. [He] is a rancher and depend[s] on the cattle to make a living. The sale of [his] cattle will likely lead to [his] inancial ruin," (Docket 1 1 at p . 2) , the court received no evidence demonstrating Mr. Temple would be irreparably 40 injured as a result of the impoundment and sale of the cattle. For instance, the court received no evidence indicating how many cattle remained in Mr. Temple's herd ollowing the impoundment, what proportion of Mr. Temple's herd would be sold, or any measureable evidence indicating Mr. Temple's ranching operation would be unable to continue as a going-concern business. Conversely, the court received evidence that approximately another 248 of Mr. Temple's cows and 2 bulls, whether or not in trespass, remained on range units 1 69 and 50 1 alone . (HE 2 2 at p. 1 ) . The court also received evidence that Mr. Temple has cattle on range units 506, 509, 5 1 2 , 5 1 4 and 5 1 6. (HE 1 2 ) . A monetary remedy challenging the BIA's damage calculation i s also available to Mr. Temple as he retains the abiliy to redeem his cattle and pursue an action against the BIA. 6 17. See 25 CFR § 1 66 . 8 1 0; see also McVay, 48 1 F.2d at Depending o n Mr. Temple's speciic allegations and the amount o f any damage claim, he may be able to pursue an action under 28 U . S . C . §§ 1 346(a) (2 ) , (b) or 1 49 1 ) . I n light of his available legal remedies, Mr. Temple ailed to demonstrate an irreparable ijury necessitating injunctive relief. III. The Balance of Harm " [T]he balance of harm analysis examines the harm of granting or denying the injunction upon both of the parties to the dispute and upon other interested parties, including the public." Uncle B's Bak, Inc. v. O 'Rourke , 920 F. Supp . 1 405, 1 436 (N . D . Iowa 1 996) (citing Dataphase Systems, Inc . , 640 F.2d at 1 1 4) . In balancing the equities, no single actor is determinative. 41 The likelihood that plaintif ultimately will prevail is meaningless in isolation . Evey case must be examined in the context of the relative injuries to the parties and the public. If the chance of irreparable injuy to the movant should relief be denied is outweighed by the likely injuy to other parties should the injunction be granted , the moving pary aces a heavy burden in demonstrating that he i s likely to prevail on the merits. Conversely, where the movant has raised a substantial question and the equities are otherwise strongly in his avor, the showing of success on the merits can be less. See Dataphase, 640 F.2d at 1 1 3 . "Stated another way, the court balances the harms that would result in the ollowing scenarios : ( 1 ) if the court improperly denied the preliminay injunction; and (2) if the court improperly granted the preliminay injunction. " B . K. ex rel. Kroupa v. 4-H, 877 F. Supp. 2d 804 , 822 (D . S . D . 20 1 2) , affd sub nom. Kroupa v . Nielsen, 73 1 F.3d 8 1 3 (8th Cir. 20 1 3) (citing Scotts C o . v. United Indus. Corp. , 3 1 5 F.3d 264 , 284 (4th Cir. 2002) (" [W]hile cases requently speak in the short-hand of considering the harm to the plaintif if the injunction is denied and the harm to the defendant if the injunction is granted, the real issue in this regard is the degree of harm that will be sufered by the plaintif or the defendant if the injunction is improperly granted or denied [ . ]") . The balance of the harm analysis weighs in avor of denying Mr. Temple's request or injunctive relief. If the court was to improperly deny Mr. Temple's request or an injunction, his cattle would be sold and Mr. Temple would be inancially injured. However, Mr. Temple would still have a legal remedy to 42 pursue damages against the BIA or certain injuries. Conversely, if the court improperly granted Mr. Temple's request or an injunction or granted injunctive relief based on Mr. Temple's allegations concerning the tribe's allocation of grazing permits, the court would insert itself into matters currently pending in Tribal Court and impede the BIA's enorcement of currently valid grazing permits. In light of Mr. Temple's alleged continuing trespass (Dockets 24- 1 & 24-2 ; and HE 22) , Mr. Her Many Horses would be charged with the unenviable task of deciding whether to enorce Donald Buington's grazing permit to land held in trust by the BIA or to comply with this court's order. See HE 1 . Mr. Her Many Horses would be similarly hamstrung in his ability to meet the BIA's iduciay obligations owed to approximately 392 other people for whom the land is held in trust. See Docket 2 1 at p. 1 9 . The court received evidence that Mr. Temple consistently overstocked range units 1 69 and 50 1 for the past several years without a grazing permit to either. (HE 23 & 24) . As a result, the yearlong carying capaciy or range unit 50 1 was reduced rom 1 1 7 head to 97 head, (HE 23 at p. 2 ) , and the yearlong carrying capaciy or range unit 1 69 was reduced rom 30 head to 23 head. (HE 24 at p. 2) . Furthermore, in light of alleged ongoing trespass of Mr. Temple's cattle, Mr. Her Many Horses' abiliy to prevent the spread of Trich to neighboring cattle herds would be signiicantly impaired. The court inds the balance of the harms actor weighs in avor of denying Mr. Temple's request for injunctive relief. 43 IV. The Public Interest This evaluation requires a "flexible consideration" of all our actors . Planned Parenthood, 530 F.3d at 729 (internal citation omitted) , Under Dataphase the district court should consider "the injury that granting the 640 F.2d at 1 1 3 . injunction will inlict on other parties." The public interest in this case is the BIA's obligation to preserve Indian agricultural lands. Temple has not shown a likelihood of success on the merits. Mr. He has an available legal remedy, and the alleged pre-impoundment conduct underlying his complaint must irst be resolved in Tribal Court. The court inds the public interest actor weighs in avor of denying Mr. Temple's request or injunctive relief. All our Dataphase actors weigh in avor of denying Mr. Temple's request or injunctive relief. The court denies Mr. Temple's motion or a TRO . MOTION TO SELL THE CATTLE Having denied Mr. Temple's motion or a TRO , the defendant can resume the standard processing of Mr. Temple's cattle in accord with the applicable BIA regulations. The court expresses no opinion on the legaliy of the defendant's proposed sale plan as this involves the resolution claims not presently beore the court. However, the court reminds the defendant of the BIA's obligation to sell the impounded livestock by public sale to the highest bidder in accord with 25 CFR § 1 66 . 8 1 1 . Mr. Her Many Horses' motion to sell the cattle is denied as moot. Based on the above analysis, it is 44 ORDERED that Mr. Her Many Horses' Rule 1 2 (b) ( l ) motion to dismiss (Docket 32) is granted in part and denied in part. · Mr. Her Many Horses' motion to dismiss Mr. Temple's Fifth Amendment due process claims and APA claim relating to the impoundment of Mr. Temple's cattle is denied. Mr. Her M any Horses' motion to dismiss Mr. Temple's claims relating to Mr. Her Many Horses' pre-impoundment conduct and Mr. Her Many Horses ' assessment of penalties and costs and damage calculation is granted . IT IS FURTHER ORDERED that Mr. Temple's claims relating to Mr. Her Many Horses' pre-impoundment conduct and assessment of penalties and costs and damage calculation are dismissed without prejudice. IT IS FURTHER ORDERED that Mr. Temple's motion or a temporary restraining order (Docket 5) is denied. IT IS FURTHER ORDERED that Mr. Temple's motion to extend (Docket 35) is denied as moot. IT IS FURTHER ORDERED that Mr. Her Many Horses' motion requesting permission to sell the impounded cattle (Docket 43) is denied as moot. Dated February 1 9 , 20 1 6. W_ , 1---- F: /s JE K CHIEF JUDGE 45

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