NO.: CV-S-97-327-HDM (RLH)

by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,


Department of the Interior, Secretary BRUCE BABBITT,
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
affiliates, subsidiaries, successors, assigns, etc.,


On June 21, 1999, Federal Defendants filed an Opposition to Plaintiffs' Motion for a Stay of the Court's May 10, 1999, order vacating the Injunction issued on June 2, 1998. Plaintiffs received this pleading on June 29, 1999. Herewith is Plaintiffs' Reply, with Points and Authorities:

1. Defendants misstate the necessary criteria for obtaining a stay and injunction pending appeal. Plaintiffs have met the proper criteria and are entitled to a stay and injunction.

Defendants' argue that "Plaintiff bears the burden of showing a strong probability of success on the merits" to be entitled to a stay pending appeal. [Opposition, 3] The three cases cited as authority for this proposition do not support Defendants' statement of the rule.

A. The first case, Lopez v. Heckler, 713 F.2d 1432 (9th Cir.), stay granted in part, 463 U.S. 1328, motion to vacate den., 464 U.S. 879 (1983), states the rule as follows:

In this circuit there are two interrelated legal tests for the issuance of a preliminary injunction. These tests are "not separate" but rather represent "the outer reaches 'of a single continuum.'" ... At one end of the continuum, the moving party is required to show both a probability of success on the merits and the possibility of irreparable injury. ... At the other end of the continuum, the moving party must demonstrate that serious legal questions are raised and that the balance of hardships tips sharply in its favor. ..."The relative hardship to the parties" is the "critical element" in deciding at which point along the continuum a stay is justified. 713 F.2d, at 1435. [internal citations omitted; emphasis added].

This is the same test applied by this Court in June, 1998, when it issued the preliminary injunction against Bureau of Land Management (BLM) impoundment of Plaintiffs' livestock. The Magistrate's May 5, 1998, Report and Recommendation in favor of the injunction stated that BLM impoundment would threaten "damage and death" of Plaintiffs' livestock, which "are the sum and substance of Plaintiffs' livelihood and way of life." [Report, 7]

Defendants admit that under the rule in Lopez ,the "standard for evaluating a motion for a stay or an injunction pending appeal mirrors that employed by district courts in deciding whether a preliminary injunction should issue." [Opposition, 3]

Nothing has changed in the facts and circumstances of this case since the Court's issuance of the injunction that would detract from the necessity and appropriateness of continuing the injunction pending appeal. The facts underlying Plaintiffs' request for a Stay are identical to those found by the Magistrate as the basis for the preliminary injunction.

The facts supporting issuance of the injunction were presented in oral argument, accompanied by documentary evidence of BLM impoundment threats and actions. The injunction was grounded in the gravity of harm posed by BLM impoundment and the irreparable nature of this harm to Plaintiffs. The "critical element" of relative hardship in this case tips as it did then: sharply in favor of Plaintiffs.

B. The second case cited by Defendants, Alaska v. Venetie, 856 F.2d 1384 (9th Cir., 1988), states that a movant is "entitled" to injunctive relief if either:

1) They demonstrate
* a probable success on the merits, and
* a possibility of irreparable injury;
2) or if they demonstrate
* a fair chance of success on the merits (i.e. serious questions are raised), and
* the balance of hardships tips sharply in their favor. 856 F.2d, at 1389. [emphasis added]

Again, this is the test properly applied by this Court when it issued the injunction protecting Plaintiffs' livestock and livelihood.

Neither Venetie nor Lopez requires "a strong probability of success on the merits," as asserted by Defendants. Venetie states:

The proper approach is best summarized as follows:
"The critical element in determining the test to be applied is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Id. [internal citations omitted; emphasis added]

It is clear from the record that on the "critical element" in this case "the balance of harm tips decidedly" toward the Plaintiffs. Plaintiffs stand to lose the "sum and substance of their livelihood." The Federal Defendants will suffer nothing more than a continued non-payment of grazing fees, a situation that has been status quo for many years. To paraphrase the Venetie decision, the Federal Defendants "simply are not dependent on the (grazing fees) or the particular levy in this case." 856 F.2d, at 1390. The harm to them is therefore not appreciably serious.

In Quinhagak v. U. S., 35 F.3d 388 (9th Cir., 1994), the Court of Appeals amplified Venetie. in circumstances similar to the present, holding that an assessment of harm to Native peoples must extend to "evidence of the threatened loss of an important subsistence food source and destruction of their culture and way of life." 35 F.3d, at 395, n5.

In this posture, where "the balance of harm tips decidedly toward the plaintiff," Plaintiffs are not required to show "probability" or even a "robust ... likelihood" of success on the merits. The proper test is whether Plaintiffs' appeal "has a fair chance of success on the merits (i.e. serious questions are raised)."

It can hardly be denied -- and Defendants do not deny -- that Plaintiffs are raising "serious questions," including (1) questions of privity among Western Shoshone People left unresolved by the 9th Circuit in U.S. v. Dann, 873 F.2d 1189 (1989), and related cases; (2) the scope and definition of aboriginal use rights, under Cramer v. U.S., 261 U.S. 219 (1923), and other cases; and (3) the existence and validity of a purported "trust" relationship between the Western Shoshone and the United States.

The questions raised by Plaintiffs have never before been litigated. They go to the core of the relationship between the Western Shoshone Nation and the United States. They are among the most "serious" questions involved in federal Indian law, involving complex factual and legal issues. "Seriousness" is all that the test requires for injunctive relief in the present circumstances, given the balance of hardships in Plaintiffs' favor.

C. In light of the foregoing Circuit decisions, the third case cited by Defendants, Davis v. Meyers, 101 F.R.D. 67 (D. Nev. 1984), is neither controlling nor appropriate. Neither prong of the distinction articulated in that case -- a requirement of "strong showing" of likelihood of success on appeal and a "reasonable probability" standard for a preliminary injunction [101 F.R.D., at 69] -- is recognized by the 9th Circuit. Defendants' reliance on Davis is misapplied.

2. It is appropriate for the Court to stay its order pending appeal, especially where difficult legal questions are involved.

It is long-established that F.R.Civ.P. Rule 62(c) is "expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances so justify." 7 J. Moore, Moore's Federal Practice P62.05, at 62-19 to 20 (2d ed. 1979) [cited in McClatchy v. Typographical Union, 686 F.2d 731, 734 (9th Cir., 1982)]. As discussed above, the circumstances of the present case meet the tests for application of the rule.

It may seem to be an obstacle to the Court's granting of a stay and injunction pending appeal that the Court would have to determine its dismissal order was incorrect. This is not an obstacle, as the Court in Himebaugh v. Smith, 476 F. Supp. 502 (D. C. C. D., Cal., 1978), explained:

[T]he success on the merits factor cannot be rigidly applied. If it were so applied, a stay would seldom, if ever, be granted because the district court would have to conclude that it was probably incorrect in its determination of the merits. Confronted with this problem, the Court of Appeals for the District of Columbia recently concluded:
"Prior recourse to the initial decisionmaker would hardly be required as a general matter if it could properly grant interim relief only on a prediction that it has rendered an erroneous decision. What is fairly contemplated is that tribunals may properly stay their own orders when they have ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained." Washington Metropolitan Area, etc. v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 844 (D.C.Cir.1977). 476 F.Supp, at 510 [emphasis added].

The Court's order dismissing Plaintiffs' Complaint was based on the Magistrate's conclusion in the January 12, 1999, Report and Recommendation, that Plaintiffs' have failed to plead sufficiently detailed facts to identify individuals and parcels of land subject to aboriginal title. That conclusion was premised on interpretation of "an admittedly difficult legal question": the scope and definition of aboriginal use rights.

In these circumstances, it is entirely appropriate for the Court to stay its own order and maintain the status quo pending appeal of its decision.


Plaintiffs' Motion for Stay and Injunction requests that the status quo, described above, be maintained pending appeal, in light of the equities of the situation: a balance of harm sharply in favor of Plaintiffs and the existence of "serious questions" of law.

Defendants' Opposition misstates both the law and the factual circumstances of the case.

For the foregoing reasons, Defendants' Opposition to a Stay and Injunction pending appeal are without merit. Plaintiffs request the Court to grant their Motion for Stay of its Order vacating its Injunction pending Appeal.

Dated: July , 1999

Respectfully Submitted,

Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Western Shoshone National Council
Indian Springs, NV 89018-210