BIG HORN COUNTY ELECTRIC COOPERATIVE, INC., a Montana Corporation v. Alden Big Man;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIG HORN COUNTY ELECTRIC
COOPERATIVE, INC., a Montana
Corporation,
Plaintiff-Appellant,
v.
ALDEN BIG MAN; et al.,
Defendants-Appellees.
No. 21-35223
D.C. No.
1:17-cv-00065-SPW-TJC
MEMORANDUM*
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
FILED
MAR 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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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
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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,
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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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