SUMMARY OF CHIEF YOWELL'S ARGUMENT AT HEARING ON PRELIMINARY INJUNCTION
(MAY 4, 1998)
1. There is a likelihood of irreparable harm to Western Shoshone cattle ranchers if an injunction is denied:
- A. Impoundment and fines would destroy our way of life and livelihood.
- B. Impoundment would destroy years of special breeding techniques, which cannot be measured in dollars.
2. There is no likelihood of irreparable harm to the BLM if an injunction is granted:
- A. The BLM does not allege any harm other than non-payment of fees.
- B. An injunction will maintain status quo Western Shoshone grazing practices which have been in effect for many years without harm to the range land.
3. The Plaintiffs have raised "serious questions" of law which are "a fair ground for litigation" [the cases which set forth this test are cited in Plaintiffs' Reply to Defendant's Opposition to the Preliminary Injunction]:
- A. Plaintiffs assert aboriginal rights to land that have never been litigated, including individual aboriginal rights that the U.S. Supreme Court ruled may exist [470 U.S., at 50 (1985)] and that the Ninth Circuit stated were not even raised in the Dann cases [873 F.2d, at 1196 (1989)] cited by Defendants.
- B. Plaintiffs were not party to and are not bound by the Dann and Temoak cases cited by Defendants; the Ninth Circuit has twice indicated that the question of privity of parties in the Western Shoshone litigation has not been decided [572 F.2d, at 225 - 226 (1978) and 706 F.2d, at 924 (1983)].
4. An injunction will serve the public interest in the orderly administration of law:
- A. BLM attempts to enforce grazing regulations while these regulations are being litigated constitute a violation of due process and a disruption of the orderly administration of the judicial system.
- B. Previous BLM actions to impound Western Shoshone livestock on the basis of alleged United States "trusteeship" over the Western Shoshone nation have occasioned great disturbance of the peace caused by aggressive para-military tactics.
- 1. Plaintiffs have demonstrated "sufficiently serious questions going to the merits" of Western Shoshone land ownership such as to make these questions "a fair ground for litigation."
- 2. Plaintiffs have demonstrated a likelihood of irreparable injury to themselves if an injunction is denied and an absence of irreparable injury to the BLM if an injunction is granted, such that "the balance of hardships tips sharply in favor" of the Plaintiffs [the cases which set forth this test are cited in Plaintiffs' Reply to Defendant's Opposition to the Preliminary Injunction].
- 3. Public interest in the orderly administration of law will be served by enjoining BLM attempts to enforce regulations which are the subject of litigation.
- 4. Plaintiffs request this Court to issue an injunction as stated in their Motion.
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