HAGENER v WALLACE
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No. 01-385 %I, JEFF Hd1I;E:NER, Director. MONTANA DEPARTMENT OF FISH, WILDL,lFE 'AND PARKS, Pldlntiff Respondent, I,EK 1YAL.LACE arid PAME1.A \VllLl.ACE d b l a BIG VELVET R:INCH, APPEAL FROM: District Court orthe First Judicial District, In and for the County of Lewis & Clark, The Honorable Dorotliy McCarter, .ludge presiding. For Appellants. Stanley T. Kalcczyc, Kirnberly A. Beatty, Browning. Kaleczyc, Reny Xr FIoven, P.C., Helena, Montana Arthur 1Vitticil (ar.gued): Attortley at i.aw, Roze~nan:Montana For Responderrt: Robert N. Lane (argued). John F. L>ilchl ilge~icyCorrnsel and Special :\ssistiarit :lttorney General, t-telerna, kloi~taiia For Amicus: . 7f~lliolske (argucdj, Attorneq-at Law. Missoula. Montana Argued m d Submitted: Iaiiuary 8, 2002 Decided: May 23, 2ii02 4 Justice 'krrv X. I'rieweilcr delivered the Opinion of thc Coufl. " : i he "-' Plaintiff, M. ieffiiagener, Director ofthe Montana Ilepartrnenr of Fish, Li7ildiifc and Parks (FWP), brought this action on behalf of FWP in the District Court for the First Jndicial District in L'ewis k Clark County, initially seeking a temporary restraining order prohibiting the Defendants, Len and Parnela CVallace, from causing or allo\ving the transfer of approximately 500 game farm elk from their game farm in Kavalli County to the Crow Indian Reservation for release into the wild. The District Court granted the temporary restraining order. Following a show cause hearing to consider why a permanent injunction should not be entered, the District Court permanently enjoined the Wallaces from transferring their game f a n elk to the Crow Indian Reservation. Tile LVallaees appeal the order of the District Court. \Ve affirm the District Court's injunction. ' 1 2 The following issues are presented on appeal: *3 1. Did the District Court err wlten it pem~anently enjoined the Wallaces from causing or allowing their game farm elk to be transported to the Crow Indian Reservation for release into the wild? 74 2, Did the District Court erroneously extend FWP's jurisdiction to activities within the exterior boundaries of the Cro\n-Indian Reservation? 715 3. Did the District Court's permanent injunction violate the Comtnerce Clause of the United States Constitution'? F-iClljAI. i\ND FRC)CEDUKAL BACKCiiSOl,rNif 76 i,cn and Pamela Wallace own and opcratethc Rig \-elvet Ranch, a iicenscd alicrrtative gamc farm located in Ravalli County, Montana. After Montanans approved Initiative 143 through the citizen initiative process in November 2000 to prohibit shooting alternative livestock for a fee or other remuneration and prohibit the transfer of existing livestock licenses. Len LYallace sought to reduce the size of his herd by donating approximately 500 head of elk to the Crow Indian 'Tribe. The Tribe, whose reservation is surrounded on three sides by the State of Montana in southcentral Montana, accepted his offer. Wallace then asked F\YP by telephone what conditions FWP would agree to for the transfer of the elk to the Tribe for release into tile wild. 1n a letter dated April 30, 2001, FWP's director, Jeff Hagcner, responded to Wallace's inquiry. Hagener concluded that such a transfer would violate .Montana law. specifically 3 87-4-414(6), MCA, and 3 87-5-71 1, MCA, stating "[bloth of these statutes are intended by the legislature to protect native wildlife populations from genetic pollution, feral populations and disease transmissions which could occur if alternative livestock are reltased into the wild." 7 :I The Wallaces responded to FU'P's letter on May 1: 2001. The Wallaces did not to directly address tfagener's comments but derided FiVP for what the Wallaces dee~ned be F I W s bias against game fkrnm. Furthennore, ihe Lk'allaces clairned that their elk were genettcaily superior to Montana's native elk because Big Velvet elk "bugle, ha-r-csome real antlers. and are not as spooky" as native elk. "8 On the morning of May 2, despite FWP's letter; the Waiiaces allowed the shipn-icnt of sixty-eight elk from their facility in Darby, Montana, to the Crow Indian Resen-atiort. Tlre truckload of elk had been inspected by representatives from the Department of i.ivestock (DOL,) and were certified as healthy for shipment. As is customary in livestock transactions, the parties exceuted a bill of sale and the Tribe took title of the elk at the Wallaces' facility. 'The Crow Tribe arranged for and paid for all transportation costs to the Reservation. The Tribe did nor have a game-proof fence in place around the exterior boundary of the Reservation. The sixty-eight elk were released into the wild. 9 I: When FWP heard of the transfer at about no011 that day, it immediately sought and obtained an e.xpcei-re temporary restraining order from the First Judicial District Court, Lewis and Clark County. prohibiting the Lt'allaees from causing or allowing their elk to be transported to the Crow Indian Reservation. On May 3, 2001, the Wallaces moved to dissolve the temporary restraining order. The District Court denied the Wallaces' request on May 7,2001. On May 9,2001, the District Court held a show cause hearing to consider why the LVallaces should not be permanently enjoined. On May 10, 2001, the District Court pel-manentlyenjotned the Wallaces from "transferring their game farm elk to the Crow Indian Reservatron." The Wallaces appealed the D~strtct Court's order 011 May 11,2001. lit0 ,:It the time FWP ohrained the temporary restraining urdcr. the Big Velvet herd had been certified by a state xjctcrinarian as a tuberculosis-accredited herd, meaning that the herd had hccn tuberculosis-free based on three consccutivc years of testing all animals twelve months or older. The Rig Velvet herd was also in the process of being certified as 4 brricellosis-free sincc all test-eligible animals had rested bruceliosis-ii-ee for three cot~secuiivc years. i l ~ veterinarian determined iiiat the herd was fret: of elk-red deer llybridization and, e based on the large number of Big Vcl\-ct elk tested, opined that chronic wasting discasc (cwnjdid not exist in the herd. Therefore, because thc veterinarian determined that the Big Vel~ct herd was tuberculosis-free, brucellosis-free, CWD-free and genetically pure, he concluded that the herd posed no realistic threat to Montai~a's livestock, native deer and elk populations. or human liealth. 71 1 The Crow Tribe has not participated in these legal proceedings and has not asked to intervene or file an amicus brief addressing the legal issues presented in this case. According to a letter sent from an attorney representing thc Crow Tribe to the District Court, dated May 8, 2001; the authenticity of which was acknowledged at oral argument, "[iln the Tribe's opinion, this is a matter regarding the assertion of State law over a citizen of the State of ,Montana, not the asscrtion of Montana law on the Reservation. As a eonsequenec, the Tribe has l~ttle interest in this case at this time." STANDARD OF REVIEW 71 2 Typically, 11-creview a district court's grant or denial of an injunction to determine if the court abused its discretion. See Jurrett v. Vallej;Park, Inc. (1996); 277 klont. 333,346, 922 P.Zd 485, 493; Bui1i.r v. Cerlrzi~i~ii (1901), 251 Mont. 107, 114. 822 P.2d 1067, 1072; Su~~zpsor? (;r00!115 (1988), 230 Mont. 190, 194, 748 P.2d 960, 063. However, where, as 1 : . here, the district court bases its decision to grant such relief upon its interpretation of a statute, no discretion is involved and we rclriew the district court's conclusion of law to 5 determine whether it is correct. ,l.fi. v. ,2lonricizti iiiglr ScJzooiA.r.s'tz 280 Mont. 123, 130, " 2 ) 23'1,213. 1' P.2d Resolution of this case also involves interpretation or application of the C:ornmeree I Clausc of the United States Constitution. We liltcwise review constitutional interpretations frz.7. for correctness. Hetzty I>. State Cor~zpen.sutiorr Ftctzd, 1999 MT 126, .j 10,293 Llont. 448, q; l0,%2 P.2d 456,l 10 (citingState v. Blitler, 1999 MT 70, ! 7,294 Mont. 17; '1/ 7,977 P.2d j 1000,11 7). [>ISCUSSION ISSUE 1 7/14 Did the District Court err when it permanently cnjoincd thc l$'allaces from causing or allowing their game faml elk to be transported to thc Crow Indian Reservation for release into the wild? 115 The Wallaces contend that the District Court erred when it issued a permanent injunction prohibiting them from transferring their elk to the Crow Tribe because the party seeking the injunction, FWP, lacked jurisdiction over the inspection, transportation, and health of the alternative livestock they owned. The Urallaces assert that pursuant to Montana's statutory scheme rcgulating game farn~ licensees, DOL, not FWP, had authoritj- In illis case, DOL inspected the herd for and primary juuisctiction over the transfer. brucellosis, tuberculosis, elk-red deer hybridization, and CWD, and granted a permit allo\iing transport of the elk to the Crow Inctian Reservation. Therefore: the Wallaccs contend that the transfer shoi~ld 11ave been allowed. Alternatively, the Wallaces argue that 6 even if FLb'P had authority over tlie transfer; it could not demonstrate that harm would resuit from the transfer given DUl.'s concirrsion that the Big Veivct herd posed no reaiistic ii~rcai to Moi~tana's livestock, native deer and elk populations, or humaii health. 6 ln response, FMrPasserts that the Wallaces violated various statutoqrequircments for game farm licensees whicli were its responsibility to enforce, whether or not they satisfied DOL's requirements. For exanlple, FWP contends that it has the duty to protect native wildlife populations, enforce the fencing of game fauns, and prevent the release of game farm elk into the wild. FWP contends that upon hansfer of the Big Velvet herd to the Tribe, the elk ~ t o u l d have bcen confined behind a ganic-proof fence, uould not hate been not transferred to another licel~sedalternatn e livestock ranch, and, as a result, could migrate back into Montana from the Crow Indian Resenation. Therefore. FWP contends that it had a duty to act and the District Court did not err when it granted the permanent injunction. 717 The District Court agreed with FWP on the sole basis that the Wallaces' actions violated 3 87-3-413(6), MCA. Section 87-4-414(6), MCA, provides in part that alternative livestockmay only be kept on a licensed alternative livestock ranch. Because the Crow Tribe bvas not alieensed altetnative livestock facility under Montana law at the time ofthe transfer, the District Court concluded that neither FWP nor DOL had the authority to permit the transfer of the Big Velvet herd to the Crow Tribe, LVc conclude that rlie District Court ani\:ed at the corrcct rcs~tlt the fo!lowing reasons. for TI8 Section 87-4-408, M\.IC:"I, generally delineates the respective responsibilities of FWP and DO1 in the game Farm context, and provides: 7 Jurisdiction, ji ) 'The department [FWPJhas primary jurisdiction over alternative livestock ranches with regard to licensing, reports. recordkeeping, e.xicr!orjhiwing, classification of certain species under 57-4-424, unlawful capture under 87-4-418, inspection under 87-4-413>and enforeenlent of the functions listed in this subsection. ( 2 )The department oflivestock has prirnarqjurisdictioa over alternative livestock ranches with regard to marking, inspection, transportation. importation, quarantine, hold orders, interior facilities: ttealth, and enforcement of the functions listed in this subsection, [Emphasis added.] The junsdiet~onalboundanes set forth in S 87-3-308, ILICA, gcnerally correspond to the underlying function of each department. FWP, as provided in 5 87-1-201(2). MCA, has a dut) to "etiforcc all the laws of the state respecting the protection, preservation, and propagation of fislr. game, fur-bearing annnals, and game and nonganic birds within the state." See u l . .blatler ofBioguri (1997), 283 Mont. 313,420, 942 P.2d 100, 105 (stat~ng ~~ that the preservation ot"l.lontana's wildlife resources is a duty entrusted to FLlrP through its regulatioii of the game farm inctustry). In contrast. DOL's primary function is to "protect the livestock interests of the state" from disease and to promote and foster a heathy livestock industry Seegerrcrul(J~ 8 1-1- 102(1), MCA. In the game farm context, DOL plays a critical tj role in the health, certification, and inspection of livestock. When disease is detected or suspected. DOI, has the authority to either quaraiitme or mon~tor diseased herd In order the to protect other state hvestock. CYh~le FFVP is generally responsible for protecting hlontana's native wildlifi resources, DOL is primarily responsible for ensuring the health of domestic 9 GI\ en the IVallaces'u~rdlspirted knov\!cdge that the Big Velbet herd would he released rnto the ~ r l on the Crow I t ~ d ~ a n d Resenat~on FWP's reasonable deduction that those elk and 8 may migrate back into Montana, we hold that FWP had concurrent jurisdiction to seek the permancni injunction granted in this case. Generuliy, FVi'P is entrusted wit11 ihe duty of protecting Montana's native wildlife populations. To that end. FWP must ensure that captive alternative livestock and native wildlife populations are kept separate, in order to protect native populations from the introduction of feral populations, genetic pollution, competition for forage or habitat, and the spread of discase. 720 That underlying duty ofF\VP is illustrated by specific assignments of responsibility applicable to this case. To ensure alternative livestock confinement, FlVP has the duty to enforce "exterior fencing," and a supplemental duty to enforce fencing requirements. 87-4- 408(l j, MCA. While DOL regulates internal game farm operations and facilities, the Legislature designated FWP as the appropriate state agency to ensure that alternative livestock are kept separate from native wildlife populations. Pursuant to that designation and to its ruleniaking authority provided in 5 87-4-422(1), MCA, FWP has promulgated game- proof fencing requirements to protect against intermingling. See Rules 12.5.1531 through - 1536?ARM. Based on FWP's jurisdiction over exterior fencing and FWP's knowledge that the Big Velvet herd would not be contained behind a game-proof fence upon delivery to the Crow-Tribe, FWP had thejurisdictional authority to seek the pernmnent injunction to prevent thc transfer. "1 The Wallaces note that the principle statutc enumerating fencing and enclositre requirements, 3 87-4-426, '11CA (1999), was repealed by 1-143. However, that statute was repealed because the fe'enc~ng enclosure requtrements set forth in that scctlon mere to be and 9 considered in dcterrnir~ing wilethcr a new alternative iiveseock license shouid be issued, and i- prohibited the issua~~ccany trew allematice livestock licenses. T'nci.c-fore;there was 143 of no furthcr need for $87-4-426, MCA ( 1 999). For those who were ltcenscd under the former lam. howelcr, thc fencing rcqu~rements mere a condit~on the Issuance of t h e ~ hcensc and to r are as binding today as they \+ere when the ltcense \\as ~ssued 722 The second specific statutory basis for FWP's authority to act is its authority over all matters dealing with the importation, introduction and transplantation of wildlife. Section 87-5-72 [(I), ILICA, provides: Control of importation for introduction and transplantation or introduction of wildlife. (1) Except as othenvise provided, the importation for introduction or the transplantation or introduction of any wildlife is prohibited unless the commission [FWP] determines? based upon scientific investigation and after public hearing, that a species of wildlife poses 110threat of harm to native wildlife atid plants or to agricultural production and that the transplantation or introduction of a species has significant public benefits. Lye interpret 5 87-5-71 1(1), MCA, to mean that the i~itroduction transplantation of crny or wildlife, including game farm elk, into the wild requires FWP approval. The purpose behind that requirement \+as made explicitly clear by the L.eg~slaturein i j 87-5-701, MCA: The legislature tinds that in order to protect the native wiidiife [of Montana] . . . it is ncccssarj to providc for the control of the importation for introduction and the hansplantation or introduction of wildlife in the state. Serious threats, knoxvn and unknown, to the well-being of native wildlife . . . resulting from the introduction of wildlife into natural habitats, necessitate the prohibition of the importation for introduction and the transplantation or introduction ofwildlifc into natural habitats unless it can be shown that no harm will result from such transplantation or introduction. 7123 ?he statutes cited above underscore the i,egislaturcis resolve to prorectrhe "well-being ofnative \vi?ciiii'e." LM-hcn native wildlife are threaiened by ihe tlarrsplaniation or introduction oiwildliie, FPVP has authority to act. That is what happened in this case. 924 The Wallaces respond that the Rig Velvet herd was tested and determined to he tuberculosis-free. brucellosis-free, CWD-free, and genetically pure by a state veterinarian. Therefore, their argument follows that the herd posed no realistic threat to Montana's livestock, native deer and elkpopulations, or human health. We disagree for several reasons. 725 First, at present, there is no test for CWD in live animals.' Infected animals can only be conclusively tested for CWD after death. Such limitations on the testing for CtVD were recently recognized by^ the 1.cgislature. In May of 2000, prior to the passage of 1-153, thc tdegislatureimposed a moratorium on applications for new alternative livestock ranches until a test for CWD in living animals was developed and approved by DOL. See May 2000 Spec. Sess. L., Ch. 1 (Senate Bill 7). Passage of S.B. 7 was in part a response to the diagnosis of C WD at a Philipsburg game farm in October of 1999,' and the permanent, in-eb~ersible nature CWD is a htal disease of the central nervous system of captive and frcc-ranging mule deer. white-tailed deer, and Rocky Mountain elk. Montana Fish, Wildlife and Parks, W a f is Chro;ric 1Ycisting Ijisecrse? (visited May 2: 2002) <http://~v~%~w.fn~p.state. mt.us,ihuntingewd.asp#CWDQ 1 >. ; The entire mule deer herd at the Philipsburg game farm ranch was destroyed in December of 19629"). Mark Henckel, Deer-Kill ar Giinze E-un?r Co;;zpleted and Cut-cnsses orr Way to Lab (visited May 2. 2002) <http:~!www.billingsga;.ette.com~region!20000128_ regO?.html>. of rho disease. 'To datc, (CVD has no: been diagnoseii in any of Montana's ficc-ranging ccnid populations. 726 ln this case; although 196 animals were tested in 1999 and 100 animals were tested in 2000, such tests are not conclusive that CLVD does not exist within the Big Velvet herd. Furthermore, the record indicates that at least two Big Velvet elk recently died and that testing for CWD was not done following their deaths, as is customary. Taken together, these factors further limit DOL's ability to conclusively certify that the Big Velvet herd was CWDfree. 1/27 Sccond, the Wallaces claim that their elk are genetically pure based presuinably on the clk-red deer hybridization test. i-Toweicr, the test for elk-red deer hybridization only assays for two phenotypic markers expressed tl~rough red deer's genetic background, one a for hemoglobin and one for transfeirin. These two markers are but two genes out of a larger genetic makeup ofan individual animal. ?'herefore, the elk-reddeer hybridization test cannot indicate genetic purity in elk. '128 Finally, the LVallaees themselves bragged about the genetic superiority of their elk in herd has comparison to Montana's native elk. According to the Wallaces, Montana's "\vi1dW been transformed into a "spooky, small antlered, non-bugling elk." Regardless of the merits of the LVallaces' contentions and without determining what desirable elk qualities are, such clistinctions serve to underscore that there may be differences between captive elk and native elk, and the need ibr FWP to he diligent to protect the integrity of native populations. Therelore, we conclude that FtVP properly asserted jurisdiction in this case. 12 !I29 Given FCVP's iuri~diction~ must i~ots-determine we whether the Wallaces iioiatcd any the statutory duties inlposcd upon chern as licensed gatnc farm ranchers. We hold titat ~vhile Wallaces did comply with certain statutory obligations, they ignored others, and in the process blolated Montana lam As a l~censec. Wallaces had a duty to dtspose of thelr the li~estock a manner uhsch complied u ~ t h requirements of T ~ t l e Chapter 4, Part 4, rn the 87, MCA. Sect~on 87-4-414(2), MCA, pro\ ides that a lteensee: 6 [MJay acqusre, breed, grow, keep, pursue, handle. Itarcest, use, sell, or dzspose of alternative livestock arzd their progeny in atzy quuntity and at any tirrze of year as long us the licelzsee cornplies ~'vitll requiremerlts of tizis part, except the that the licensee may not allow the shooting of game animals or alternative livestock, as defined in 87-2-101 or 87-4-406, or of any exotic big game species for a fee or other remuneration on an alternative licestock facility. [Emphasis added.] Therefore, the Wallaces had an express obligation to comply with each and every requirement under the statutory scheme regulating game farms '130 -n?e District Court based its decision to grant the permanent injunction on 4 87-4- 414jh), MCA. SpccifYcally, $ 87-4-414(6), MCA, provides in pertinent part: Alternative livestock must be lawfully acquired by the licensee. Alterrzntit,e livc.~esiockttzu), be kept only on N licensed alti~r~zmtive livestock ranch. A licensee who keeps alternative livestock owned by, leased to, or leased from another person shall eonlply with all of the requirements of this part as if the animal belonged to the licensee. [Emphasis added.] In this case, the Wallaces attempted to dispose of their alternative livestock to the Crow Indian Reservation, a destination they knew was not a licensed alternative livestock ranch. 'The Crow Tribe, in turn, intended to release the Rig Velvet lterd into the wild. Prior to the FWP transfer, tlie Wall:tccs contacted FWP and asked under what cond~t~ons would appro! e the transfer. Dcspite FWP's .~varning the transfer would victiaic 3 87-44 that 14(6),MCA. thc LValiaccs proceeded to ship thc clk to the Rcservarion. TVith knouiedgi: tl~at elk bere tile destined for a location other than a licensed alternative ranch and for ultimate rclease into the wild, the District Court correctly concluded that the \%'allacesviolated their duty as licensees to act in accordance with the requirement of 3 87-4-414(6), MCA. 73 1 The U'allaces' attempt to transfer their elk to a location without an appropriate game- proof fence also violated Montana law. See Rules 12.6.153 1 tlirough -1536, ARM. Not only was the destination unapproved, but the intent behind thedestination was torelease them into the wild. Because the Crow Tribe is bordered on three sides by the State of Montana, a distinct possibility existed that those elk would naturally migrate back into the State of Montana. Because the Wallaces knew that the Big Velvet herd would not be confined behind elk of on a game-proof fence. the Wallaces disposed of the~r in v~olatlon the duty ~mposed licensee regulations. them by 4 87-4-414(2), to abide by all appl~cable 1/32 Finally, the Wallaces attempted to participate in a transaction whereby their elk herd would be released into the wild without FWP approval, in contravention of 3 87-5-71 1, MC;2. Before transplantation of wildlife into the wild is lawful, FWP must approve the introduction based on a determination that the species poses no threat of harm to native w4ldlife or has sigilificant public benefits. The \%'allaccsfailed to obtain FWP approval for transplantation. In fact, the Wallaces complctely ignored FWP's response to their inquiry. Therefore, the Wallaces violated statutory law. 33 Tile statutes at issue rn thrs case are not mere tcchn~calrrles ilnreasondbie obstacles or to private enterprise. Thcq arc essentiai to ensure tile health and safely ofMonrana's natural wildlife population. They reflect the theory underlying environmental protection that being proactivs rather than reactive is necessary to ensure that future gencrations ei~joy both a healthy environment and the wildlife it supports. See gerterilllj jtfEIC: v. Ijept. of Environ~nerztulQzicility, 1999 MT 248,777, 296 Mont. 207,177, 988 P.2d 1236,g 77. 534 FWP had a statutory basis for jurisdiction over the Miallaces as licensees, and the Wallaces failed to comply with statutory limitations pertaining to the disposal of their game farm elk. For these reasons, we coilclude that the District Court correctly enjoined the Wallaccs froin causing or allowing their altcrnatix-e livestock herd to be transported to a location where they would be released into the wild and could migrate back into Montana. ISSLJE2 '35 Did the District Court erroneously extend FWP's jurisdiction to activities within the exterior boundaries of the (-row Indian Reservation? 3 6 The Wallaces contclld that the District Coui-terred when it effectively extendedFWP1s jurisdiction over alteillative livestock onto tribal land, in violation of federal law. According to the Wallaces, the decision of the Crow Tribe to accept the Big Velvet elk herd was clearly an exercise of tribal self-governi-iientand FWP had no jurisdictioil to interfere. 1;37 FWP contends its efforts were not an attenlpt to exercise jurisdiction over the Crow 'fribe; but an attempt to prohibit the Wal!aces, as licensed and regulated altemativc livestock ranchers, from trmsfcmng thc~relk in \!olatton of Montana lam 15 Furthermore, FWP contends that the permanent injunctron Issued by the Drstrict Court penalns to non-indlans outside the exterior borders of the Crow indian Reset-vation and that, therei'ore, tribal sovereignty is not in~plicated. "38 Throughout these proceedings, the two parties have been the \%'allaces and FWP. Given the Wallaccs' claim that FWP's actions threaten the sovereignty of the Crow Tribe. it is worth noting tllat tile Tribes have elected not to intervene or file an amicus brief in this case. In the past, tribal governnlents have appropriately asserted their rights to tribal sovereignty when at issue. In fact, the Crow Tribe stated to the District Court that this was "a matter regarding the assertion of State law over a citizen of the State of Montana, not the assertion of Montana law on the Reservation." "39 i We couclude, based on our holding in Norflierr~ Rot-&r Pipeline C'o. v. Mrintnrzc~ (19891, 237 Mont. 117, 772 P.2d 820, that the Wallaces lack standing to assert that the District Court's permanent injunction violates the sovereignty of the Crow Tribe. In Nortl7i.1-11UOI-der, pipeline company sought injunctive relief to prevent the State from a assessing, levying, or collecting property taxes on that portion of a pipeline nlnning beneath the Fort Peck Reservation trust lands. One of its claims was that the State's tax interferes to an impermissible extent with the Tribe's sovereign rights of self-government. 730 In that case, we reiterated that one of the bases far thc standing requirement is 'jjudicial self-restraint imposed for reasons of policy." ?;ort/zt'mR o r d ~ ~ r , Mont. at 128, 237 -- P.2d at 835 (c;ititigOlsorz v. L)epirrmenr ofRevenue (lC)8G),223 Mont. 464,470, 726 i 12 P.2d 1162, 1166). The policy of w-hie11 we spoke in Not-rherri Border was the "general 16 reiuciancc of courts to dctcrniinc tkc rights of persons \vho are nut parties to the suit . . . ." ?;orriiefii Br?ri[ci.? Mont. at 128, 772 P.2d at 835; see niro !>like Power Cb.v. C.'(li-i?li?lil 237 E I Z LA.Y~1~ 4<;~.ozip, (1078). 438 U.S. 59, 80, 98 S.Ct. 2620, 2034, 57 L..Ed.Zd 595. G I G t 4. IIZC. (staring "the avoidance of the adjudication of rights which those not before the Court may not wish to assert, and the assurance that the most effective advocate of the rights at issue is psesent to chainp~on them "). In Vortlzenz Border, u e held: Nortlrern Border has standing by virtue of its taxpayer status to challenge the property tax imposed on it by the State. However, it does not have standing to assert the Tribes' sovereign right of self-government in doing so. As we noted in Olsot7, the principle of standing requires that the plaintiff allege "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . ." [Citation omitted.] Northern Border cannot allege a sufficient "personal" stake in the self-government interests of the Tribes to gain standing on this claim. 7141 Witi~oui being members of the Crow Tribe, the Wallaces have insriffjcjent "personal" stake in defending the self-go~ernment mterests of the Crou 7'rtbe. If FWP's actions in thts case interfered w ~ t h soverergn rights of the Cron Tribe, then the Crou Trrbe mould be the the "most effective ad5ocate of the rights at issue" as contemplated sn Duke Pmser. I towe\er. for reasons made clear to the U~strrct Court, the Crow T r ~ b opted not to rntercene. e bVrthout adequately denionstrattslg a suftic~ent"personal" stake in defendsng the selfgoxcrnrnerrt Interests of the CI.OLC Tribe, n e conclude that the i'l'allaces lacked standlng to assert such a clam. ISSUE 3 y42 Did thc Ilistrict Coiirt's pel-nlancnt injunction violate the C'ommercc C!ause oP the United States Constitution'? (i33 Finally, tlie Wallaces contend that the permanent injunction issued by the District Court \iolates the Commerce Clause found at Al-ticle 1, Section 8, Clause 3, of the United States Constitution. Specifically, the Wallaces assert that the District Court's conclusion that the "1)efendants may not transfer their game farm elk to a recipient that is not licensed in accordance with Title 87, Chapter 4, Part 4, MC.4" results in extraterritorial application of Montana's regulatory scheme to foreign nations, other states, and Indian nations. Based on the District Court's order, the Wallaces assert that they bvould be prohibited from transferring their game farnt elk to clr1jJrecipient not licensed by Montana, including interested recipients in foreign countries, other states, and other tribal nations. Such a restriction, the Wallaces contend, is a regulation on cornmercc that directly conflicts with the Commerce Clause. v 4 FFVP contends that the issue in this case is whether the S'late of Montana can restrict transportation of alternative livestock to a location outside its jurisdiction in situations where, when released, a realistic possibility exists tltat they could migrate back into l.lontana. FWP concedes that a literal interpretation of tlie Court's language requiring licensing under Montana's statutory scheme, even for recipicnts in extraterritorial jurisdictions, is probably beyond the power or authority of the State. However, based on the facts and circurnstanees of this case, FM'P argues that the permanent injunction does not violate tile Commerce Clause because (1) there is no act of Congress which preempts the District Court's injunction 18 and (2Montana's stattitniy f'ri.am~'~vork applied even-handcdly and accomplishes a is le&imate local public interest while only having incidental effects on interstate commerce. 745 The Commcrce Clause provides titat "/t]he Congress shall have Power . . . [t]o regulate ('omnlerce with foreign Nations, and antong the several States, and with the Indian 'Tribes/.]" U.S. Const. art. 1. 5 8, cl. 3. 746 To begin, the Wallaces' claim that the District Court's language in the permanent injunction is overbroad and violates all three subsections of the Commerce Clause, i.e., the Foreign Commerce Clause, the Interstate Commerce Clause, and the lnd~anConimerce Clause. is misplaced. The Issue in thts case 1s not \\hethcr the Wallaces can transfer their elk to a non-licensed recipient in another state or another country. Thc issue before this Court is whether the State of Montana can prevent a licensed Montana game farm operator from transferring alternative li\estoek to a tribal reservation within the exterior boundaries of the State of Montana \?hen the tribe has expressed the intent to release those elk into the wild where they could naturally migrate back into Montana. It is within that context that we inilst examine the Wallaces' Commerce Clause claim. 74'7 In doing so, we concl~idc this case Fdlls squarely within a recognized exception that to the traditional C'ommerce Clause analysis. Statutes regulating game farms found in Title 87, Chapter 4, Part 4, MCiZ, serve to isolate alternative livestock from native wildlife populations and domestic livestock. By confining alternative livestock in an eellclosed area, the Montana Legislature sought to reduce the risk of spreading CWD, genetic pollution, interbreeding bet\veen wild and game-farnt bred elk, and the establishment of feral pup;;lations. Rased on that pprmisi, gamc farm regulations scwc as qiiarantine laws. 'l'he United States Sup:.cm:: Coud has repeatedly upheld quarantine !aavs against Commerce Clause challenges. f148 As early as 1888, the Court in flult;maflv. Chicago & IV. CV. Ry. Co. (1888), 125 U.S. 465,489,8 S.Ct. 689,700,3 1 L.Ed. 700. recognized that "states have [the] pobver to provide by law suitable measures to prevent the introduction into the states of articles of trade which, on the account of their existing condition, lvould bring in and spread disease, pestilence, and death . . . ." The quarantine exception recognizes that states may have a local interest in protecting public safety as a competing value \vhen reviewing state burdens on interstate commerce. That interest extends to regulations on diseased or potentially diseased livestock. ,See Ashcll v. Kanscts (1908j, 200 U.S. 251, 28 S.Ct. 485, 52 L.Ed 778; Reid v. Colorczdo 443. 25 L.Ed 743, the Court stated that: In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to the health or which \vould endanger the lives or property of its people. 4 Paramount in dctern~ining whether the state regulation in question qualifies under the R. & quarantine cxception is the true intent behind the regulation. See Orego~~-IZi~sl~irzgton ~VLZV. I). bfV(zs/~itzgtotr Cir. (1026), 270 1I.S. 87,05,46 S.C1.279,281,70 L.Ed. 482 (slating that c~uarmtinc laws "cannot. . . be made the cover for discriminations and arbitrary enactments relation to health:. . . ."); S?il v. Sf.Louis & ,S. F Ry. C b . (1901 ); 18 1 tzfz F having no reaso~iablc L.S. 248, 257,21 S.Ct. 603, 606, 35 i , E d . 847 (noring that a law regulating commerce "under :i guise" of a iju~~rantine not be permitted a ~ ~ d "[ajtry pretense or h. will that masquerade Lviil be disregarded: and the true purpose of the sratutc asccrlained."). Quaralltine laws upheld by the U.S. Supreme Court lxtve "not discriniinate[d] against articles, whatever their interstate commerce as such. but siriply prevented traffic in ~toxious v. !Veus.Jet,sey (1978). 437 L1.S. 617>(129~ S.Ct. 253112538, 98 origin." L'i~ofl'hilc~rlelp/~iii 57 L.Ed.2d 475. Despite the fact that a majority of the Court's jurisprudence on the quarailtine exception was developed at the turn of the century, tlte Court continues to consider the applicability ofthe quarantine exception to Commerce Clause challenges today. See get?el-i~l!y Chetr~ic-ill Wolinste ;tlirtrirger?~erlt, 11. Hzirzt ( lcj02), 504 li.S, 334>340-37, 1 12 lnc. S.Ct.2009,2016. 119L..Ed2d 121. '150 I In this casc, the requirement in 8 87-4-414(6), MCz4,that alternative livestock be kept only on licensed alternative livestock rilnches is illustrative of the Legislature's recognition that unconfined alternative livestock intermingling with native wildlife populations may be prejudicial to both the health and property of Montanaiis. With the alarming spread of serious mildlife diseases rhroughout the country and partieularl) in the Wcst, the State has a compelling interest to enact regulations to ensure that alternative livestock cannot si~rtply roam into Montana and threaten native populations, One of those regulations is 5 X7-4- 414(0), MCA. "I i Moreover, statutes which regulate the game fann industry like 5 87-4-414(6), ILICA, arc not economic protectton~st measures. In fast, nclther FWP nor DOL have the authority to act in rhosc iascs \%%en in-state iicensees transfer alternative livestock to rccipicnts in other states, other countries, or other triba! nations, if there 1s no realistic threat that the transfer may impact Montana's lic estock, native deer and elk populations, or human health, However, in a situation sucli as the one presented, where the C:ro\v Reservatioii is wholly within the exterior boundaries ofthe State of Montana and elk released into tlre wild onto the Resenation could migrate back into Montana, we conclude $ 87-4-414(6), MCA, falls squarely within the quarantine exception to the Commcrce Cla~ise.Therefore. we conclude that no violation of the Commerce Clause has been demonstrated. 152 For the foregoing reasons, we affirm the pennanent injunction issued by the District soill? We Concur: Justice Jaines C. Ncison specially concurs. 453 1 concur in our Opinion. That said, it is. nonetheless. \vorth observing thar h i s case represents what call only be described as a s e r i o ~ ~ s breakdo\vli in a11 important part oi'the regiilatory scheme of State government. "j4 As touched upon in 7 33 of our Opinion, the statutes governing FWP's jurisdiction and authority to ensure the health, safety and integrity of Montana's native wildlife population are ultimately grounded in the State's obligation under Article IX, Section 1, of Montana's Constitution to "mai~ltain improve," for the benefit of "present and future generations," and Montanans' Article 11, Seetion 3, fur~damental constitutional right to "a clean and healthful envirol~ment."See Sfate v. Boyer. 2002 bfT 33, $22, 308 Mont. 276, F 22,42 P.3d 771.7 22. wherein we stated--in upholding a game warden's search for and seizure of over-limit fish in a live well in a boat--that "our Constitution: laws and regulations mandate special considerations to assure that our wild places and the creatures that inhahit the111are preserved for future generations." q;;55 It can hardly be gainsaid that if, as the Attorney General argued in Boyer, over-fishing iniplicates the "clean and healthful environment" protections of %iontana'sConstitution. then, for the reasons set forth in 1l7 23-28 of our Opinion, the release of game far111 elk into the wild carries with it the potential for an environmental disaster of truly n~onumentai proportions. y56 Wit11 that in mind, and, recognizing the State's obligation to protect, maintain and iilrprcne the envirortt~lel-it, deserves special contniern that; at least kom the record before it rrs. it appears that there was no comtnunication, much less anj-consuiiarion or cctordinatiori, between DOL and FWP with respect to the Wallaces' proposed transfer of their game farm elk to the Crow Tribe. bV11ile Title 87 governs "Fish and Wildlife'' and more specifkally FCVP; $ 87-4-408, MCA, cited in 71 18 of our Opinion clearly indicates that FWP and DOL have interrelated functions with regard to game farm animals. See ul.so $ 87-4-414 and $ 874-41 5, MCh. In spite of these interrelated functions, each agency--like ships passing in the night--simply did its own thing under the statutes and regulations that pertained to its particular operations. That the involved personnel in these two State agencies failed to ackllowledge a need much less any apparent legal requirement, to communicate atid coordinate with each other with regard to this matter is mind-boggling given the serious environmental ramifications of allowing game farni elk to mix with, and presumably breed with, Montana's wild elk population. 757 in this regard. it tniglit be that DOL would not have permitted the transfer of Wallaces' game farm elk if some sort of pre-permit assessment of environmental impacts had been conducted under Title 75; Chapter 1 . Part 2, MC.4 (the "Montana Environmental Policy Act or MEPA). Of course. on the record here, it appears that DOL was not eve11 aware of the potenlial cnvironn~enlal threats that had been identified by its sister agency, FWP, and which the LVallaces' inrcnded course of conduct posed. Again, this points up the break down of communication and coordination between the two State agencies involved in this case, and, more irnportantl;;, the hilure of the Sbte to discharge its consti~utional obligation to protect the eirironment through its agencies and governillg regulatory scheme, 4!58 in short given that Article IX. Section 1. of our Constitution clearly and unambiguously imposes upon tlre State the obligation to "maintain and improve a clean and healthful environment in Montana for present and future generations," the Legislature, under Article IX; Section 2. has a concomitant obligation to "provide for the administration and enforcement of this duty" by adopting laws that ensure the right hand of State government
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