FILED

NOT FOR PUBLICATION

MAR 11 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BIG HORN COUNTY ELECTRIC No. 21-35223 COOPERATIVE, INC., a Montana Corporation, D.C. No. 1:17-cv-00065-SPW-TJC Plaintiff-Appellant,

v. MEMORANDUM*

ALDEN BIG MAN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted February 8, 2022 Seattle, Washington

Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.

Big Horn County Electric Cooperative (BHCEC) appeals the district court’s

grant of summary judgment for all defendants, holding that the Crow Tribe has

regulatory and adjudicatory authority over BHCEC’s activities on the land where

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Big Man resides. The district court determined that Big Man resides on tribal trust

land and that BHCEC had not met its burden of showing that Congress intended to

divest Crow of its tribal jurisdiction over BHCEC’s actions on that land. In the

alternative, the district court concluded that both exceptions detailed in Montana v.

United States, 450 U.S. 544 (1981), apply: 1) BHCEC formed a consensual

relationship with the Tribe and there is a sufficient nexus between the regulation

and that relationship, and 2) BHCEC’s conduct has a direct effect on the health and

welfare of a tribal member. We conclude that the first Montana exception is

sufficient to sustain tribal jurisdiction over the dispute. We affirm the district

court’s grant of summary judgment on that ground.

The Tribal Council of the Crow Tribe adopted as part of the Crow Law and

Order Code, Title 20 Utilities, Chapter 1, Termination of Electric Service. One

provision of that chapter prohibits, for any reason, termination of electric service

from “November 1st to April 1st except with specific prior approval of the [Crow

Tribe Health] Board.” In January 2012, Big Man became delinquent under the

payment provisions of his membership agreement with BHCEC. Big Man was

given notice of his delinquency in accordance with BHCEC’s rules and governing

policy. The termination notice invited Big Man to “contact one of our offices to

see if you would qualify for a payment arrangement.” Having received no

2 communication from Big Man, BHCEC disconnected his electric service in late

January, without prior approval of the Tribe.

In Big Horn County Electric Cooperative, Inc. v. Adams, 219 F.3d 944 (9th

Cir. 2000), we determined that the BHCEC’s “voluntary provision of electrical

services” on the Tribe’s reservation and its contracts with tribal members to

provide electrical services created a consensual relationship, within the meaning of

Montana. 219 F.3d at 951. In Adams, we did not limit the tribal court’s

jurisdiction to suits on the contract, but merely reaffirmed that the regulation/suit

must arise out of the activity that is the subject of the contracts/consensual

relationship—the provision of electric services. Id.

As the district court correctly noted, and the tribal defendants have argued,

the regulation has a nexus to the activity that is the subject of the consensual

relationship between BHCEC and the Tribe: “Title 20 prevents termination of

electrical service during winter months without approval of the tribal health

board.” The unlawful termination of Big Man’s electricity services is

directly related to the consensual relationship. BHCEC provides electrical service

to tribal members on the reservation and the Tribe is seeking to regulate the

manner in which BHCEC provides, and stops providing, that service. Put simply,

3 the winter electric regulation conditions one aspect of the consensual relationship.

Finding that the first Montana exception applies, we need not reach the other

grounds for summary judgment.

AFFIRMED.

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