## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 25 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PRAIRIE BAND OF POTAWATOMI INDIANS, Plaintiff-Appellee,

v. No. 99-3324 KARLA PIERCE, Secretary of Revenue, State of Kansas; SHEILA WALKER, Director of Vehicles, State of Kansas; and DON BROWNLEE, Superintendent, Kansas Highway Patrol, Defendants-Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 99-CV-4136-DES)

John Michael Hale, Kansas Department of Revenue, To peka, Kansas (M.J. Willoughby, Office of the Attorney General, Topeka, Kansas; Richard L. Cram, Kansas Department of Revenue, Topeka, Kansas, with him on the briefs) for the Defendants-Appellants. David Prager III, General Counsel, Prairie Band of Potawatomi Indians, Mayetta, Kansas, for the Plaintiff-Appellee.1 Honorable Zita L. Weinshienk, United States District Judge for the District of

Colorado, sitting by designation. -2- Before EBEL , HENRY , Circuit Judges, and WEINSHIENK , District Judge. 1

HENRY , Circuit Judge.

Seeking to have its motor vehicle registrations andtitles recognized by the state of Kansas, the Prairie Band of Potawatomi Ind ians, a Kansas Indian tribe, filed suit against various Kansas state officials p ursuant to the Indian Commerce Clause, the Kansas Act for Admission, and other fed eral law. During the proceedings below, the district court issued a temp orary restraining order (“TRO”) and thereafter a preliminary injunction, ea ch of which prohibited further enforcement of the state motor vehicle registration and titling laws with respect to vehicles registered and titled by the tribe. The s tate officials then filed this interlocutory appeal, challenging the preliminary i njunction on various grounds. We affirm for the reasons set forth below.

I. BACKGROUND-3-

The Prairie Band of Potawatomi Indians (the “tribe” ) is a federally recognized Indian tribe with a reservation located in Jackson County, Kansas. On March 16, 1999, as a response to “a significant inc rease in the amount of motor vehicle traffic on the reservation,” the tribe enac ted its own motor vehicle code. Aplts’ App. vol. I, at 16 (Prairie Band Motor Vehic le Code (“PBMVC”) Ch. 17- 1). The purpose of the code was “to implement reas onable rules, regulations, and penalties essential to maintaining a safe transport ation system within the [tribal] jurisdiction.” Id. Under the code, tribal registrations and titles are required for all vehicles owned by the tribal government and for all vehicles owned by tribal members who reside on the reservation. See PBMVC § 17-10-1(B). Registration involves “the act of assigning a registration plate [i.e., a lice nse] and validation sticker(s) to a vehicle, and to renew the same.” Id. § 17-10-2(H). Titling involves, among other things, proof of ownership. See id. Ch. 17-10 (noting “the issuance of certificates of title for conveyance of ownership”); see also id. § 17-10-19 to -35 (various tribal statutes on certificates of title). A certi ficate of title “is a prerequisite to registration of [a] vehicle.” Id. § 17-10-4(D). Prior to the enactment of the tribal motor vehicle code, the tribe and its members complied with the motor vehicle code of Kan sas. Under the state code,2 Section 8-142 provides in part: It shall be unlawful for any person to commit any o f the following acts and except as otherwise provided, vi olation is subject to penalties provided in K.S.A. 8-149, and amendments thereto: First: To operate, or for the owner thereof knowin gly to permit the operation, upon a highway of any vehicle , as defined in K.S.A. 8-126, and amendments thereto, which is not registered, or for which a certificate of title has not been issue d or which does not have attached thereto and displayed thereon the lic ense plate or plates assigned thereto by the division for the current registration year, including any registration decal required to be affixed to any such license plate pursuant to K.S.A. 8-134, and am endments thereto, subject to the exemptions allowed in K.S.A. 8-135, 8-198[,] and 8- 1751a, and amendments thereto. Second: To display or cause or permit to be displayed, or to have in possession, any registration receipt, certi ficate of title, registration license plate, registration decal, acc essible parking placard or accessible parking identification card k nowing the same to be fictitious or to have been canceled, revoked, su spended or altered. Kan. Stat. Ann. § 8-142.

-4- all vehicles that operate in Kansas are required to have registrations and titles issued by the state. See Kan. Stat. Ann. § 8-142. 2 Violators may be cited and are subject to imprisonment and/or a fine. See id. ; see also id. § 8-149. Gratefully, an exception is made for nonresidents. Nonresident s who operate vehicles in Kansas are not considered violators if they are pro perly registered and titled in the state of their residence and if the state of their residence grants reciprocal3 Section 8-138a states that: The provisions of this section shall apply only to the nonresident owner or owners of any motor vehicle co nstructed and operated primarily for the transportation of the dr iver or the driver and one or more nonpaying passengers. Such nonresi dent owners, when duly licensed in the state of residence, are h ereby granted the privilege of operation of any such vehicle within t his state to the extent that reciprocal privileges are granted to re sidents of this state by the state of residence of such nonresident owner

. Kan. Stat. Ann. § 8-138a. Interestingly, this prov ision allows for the recognition of registrations and titles issued by tribes residing outside of Kansas. See State v. Wakole , 959 P.2d 882, 885-86 (Kan. 1998) (noting that the state of Oklahoma recognized an Oklahoma tribe’s license plates as va lid for use on Oklahoma highways; thus, holding that a vehicle with the Okl ahoma tribe’s license plate was “duly licensed” under Kan. Stat. Ann. § 8-138a).

-5- recognition to the registrations and titles of Kansas. See Kan. Stat. Ann. § 8-
138a. 3 On April 27, 1999, approximately a month after the enactment of its motor vehicle code, the tribe issued its first registrati on and title to a tribal member by the name of Vestina Nonken. See Aplts’ App. vol. I, at 104 (affidavit of David Danielson, tribal motor vehicle registrar). Having received indications from state officials that tribal registrations and titles woul d not be recognized outside the reservation, the tribe apparently hoped that Ms. Nonken would be cited so that a challenge could thereby be made to the state motor vehicle registration and titling-6-

laws as applied to the tribe and its members. For two months, the tribe asked various state officials to cite Ms. Nonken, but no citation was ever issued. Thereafter, during the week of June 28, 1999, the t ribe proceeded to issue more registrations and titles. See id. vol. III, at 8 (counsel for tribe at TRO hearing) (stating that by June 1999 there were appr oximately twenty tribal registrations and titles in use). For more than a month, these registrations and titles remained unchallenged by the state. It was not until August 7, 1999, approximately three months after the first registration and title was issued by the tribe, that a tribal member was finally cited for u sing a tribal registration and title outside the reservation, a purported violation of Kan. Stat. Ann. § 8-142. See id. vol. I, at 158 (citation issued to Joseph P. Rupnic k). Two more citations and a warning ticket were subsequently issued, all during the first two weeks of September 1999 and all pursuant to § 8-142. See id. at 157, 159, 160 (citations or warning tickets issued to Willie J. Potts, Nathanie l J. Potts, and Joseph H. Mattwaoshshe). Of the three citations, two were ul timately dismissed and the last resolved by payment of a fine. See Aplts’ App. vol. III, at 11 (counsel for tribe at TRO hearing); id. at 103 (counsel for tribe at clarification hearing ).-7- II. PROCEDURE On September 14, 1999, the tribe filed a complaint against Karla Pierce, secretary of revenue for the state of Kansas; Sheil a Walker, director of vehicles for the state of Kansas; and Don Brownlee, superint endent for the Kansas Highway Patrol, alleging that the state was compell ed to grant recognition to tribal motor vehicle registrations and titles pursu ant to the Indian Commerce Clause, the Kansas Act for Admission, and other fed eral law. On the same day, the tribe filed a motion for a TRO and preliminary injunction, asking that the district court “enjoin the Defendants from enforcin g the Kansas motor vehicle registration and titling laws against the Plaintiff and any persons who operate or own a vehicle registered and titled under [the] Tribal Code § 17-10-1 et seq. ” Aplts’ App. vol. I, at 89 (tribe’s motion for a TRO and preliminary injunction). After conducting a hearing, the district court gran ted the tribe a TRO. In response, the defendants asked the district court t o (1) provide specific findings of fact to justify the issuance of the TRO, (2) cla rify the scope and extent of the TRO, (3) clarify that the TRO was in effect a preli minary injunction, and (4) stay the TRO pending appeal. With respect to the first request, the district court refused, stating that “the record is sufficiently c lear as to the basis for the issuance of the TRO.” Id. vol. II, at 138 (district court order, filed Oct. 13,-8-

1999). It did, however, provide some clarificationas to the scope and extent of the TRO, and it also granted the tribe a preliminary injunction. Finally, the district court rejected the application for stay, n oting that “[i]f the court were to issue the requested stay, the tribal members protec ted by the injunction would immediately become vulnerable to the arrests, citat ions[,] and related legal matters.” Id. at 141 (district court order, filed Oct. 13, 1999)

. The defendants subsequently appealed the denial of stay to this court, arguing that “[t]he district court’s order does notpreserve but rather changes the status quo because it frees the tribe to issue as m any tribal tags and registrations to whomever it wishes.” Aplts’ App. for Stay at 5 (filed Oct. 15, 1999). This court held in favor of the defendants, granting a s tay pending appeal. It concluded: “[I]t is appropriate to preserve the st atus quo as it existed prior to the district court’s entry of the injunction pending de termination of the issues on appeal.” 10th Cir. Order at 2 (filed Nov. 9, 1999)

.-9- III. DISCUSSION Prior to oral argument, the tribe filed a motion wi th this court, asking that we dismiss the appeal of the preliminary injunction as moot. See Aple’s Mot. to Vacate Inj. & Dismiss Appeal at 3-4 (filed Dec. 30, 1999) (noting that the tribe “reduced the number of tribally registered and titl ed vehicles to the point where the Nation longer desires to pursue an injunction”) . During oral argument, however, the tribe conceded that the appeal was notmoot, and we therefore address the two major arguments raised by the defen dants: (1) that the district court did not have jurisdiction over the instant ca se and (2) that the district court abused its discretion in issuing the preliminary in junction.

A. Jurisdiction 1. Federal Question Jurisdiction According to the defendants, the district court lac ked jurisdiction over the instant case because the tribe did not raise a “col orable federal claim.” Aplts’ Br. at 41. As a preliminary matter, we note that the d efendants did not bring this issue to the attention of the district court during the proceedings below. That failure, however, does not preclude our review because, “[s]o long as a case is pending, the issue of federal court jurisdiction may be raised at any stage of the-10-

proceedings either by the parties or by the court on its own motion.” Ramey Constr. Co. v. Apache Tribe of the Mescalero Reservation , 673 F.2d 315, 318 (10th Cir. 1982). The defendants are correct in noting that a federal claim must be colorable to establish federal question jurisdiction. See Aldinger v. Howard , 427 U.S. 1, 7 (1976) (“[W]here federal jurisdiction is properly b ased on a colorable federal claim, the court has the right to decide all the qu estions in the case . . . .”) (citation and internal quotation marks omitted); BIW Deceived v. Local S6, Industrial Union of Marine & Shipbuilding Workers of America, IAMAW , 132 F.3d 824, 832 (1st Cir. 1997) (“As a matter of comm on practice, a district court confronted with a question of subject matter jurisd iction reviews a plaintiff’s complaint not to judge the merits, but to determine whether the court has the authority to proceed. When conducting this inquiry , the court only asks whether the complaint, on its face, asserts a colorable federal claim.”) . But the defendants improperly suggest that a claim is colorable only when it must succeed on the merits. We are unaware of a ny case that defines colorability in such strict terms; indeed, a review of case law demonstrates otherwise. For example, the First Circuit has defi ned “colorable” as “‘seemingly valid or genuine,’” BIW , 132 F.3d at 832 n.4 (quoting Webster’s New Collegiate-11-

Dictionary 220 (1981)); the Eighth as “not without some merit,” Jensen v. Schweiker , 709 F.2d 1227, 1230 n.2 (8th Cir. 1983); and the Ninth as not “wholly insubstantial, immaterial, or frivolous.” Boettcher v. Secretary of Health & Hum.
Servs. , 759 F.2d 719, 722 (9th Cir. 1985). In this circuit, “colorable” has been similarly – a nd generously – defined. In Harline v. DEA , 148 F.3d 1199 (10th Cir. 1998), for example, we h eld that

[t]o determine whether a claim is colorable, it is necessary to examine its merits. A determination that a claim l acks merit, however, does not necessarily mean it is so lacking as to fail the colorable test. A . . . claim . . . is not colorab le if it is immaterial and made solely for the purpose of obtaining jurisd iction or . . . is wholly insubstantial or frivolous. Id. at 1203 (internal quotation marks omitted); see also United States v. McAleer , 138 F.3d 852, 857 (10th Cir. 1998) (defining “color able” as having “some possible validity”). Given these liberal definitions, we conclude that, in the instant case, the tribe did raise a colorable federal claim. The tri be alleged in its complaint that, under federal law – in particular, the Indian Comme rce Clause and the Kansas Act for Admission – the state was required to extend re cognition to the motor vehicle registrations and titles issued by the tribe. This claim was not “wholly insubstantial or frivolous” in light of the various Supreme Court cases in which-12-

the validity of state motor vehicle laws as applied to tribes and their members was challenged on similar grounds. See, e.g. , Oklahoma Tax Comm’n v. Sac & Fox Nation , 508 U.S. 114, 127 (1993) (questioning the validity of a state motor vehicle excise tax and registration fee as applied to a tribe and its members); Washington v. Confederated Tribes of the Colville Indian Reservation , 447 U.S. 134, 162-64 (1980) (concluding that a state lacked authority to impose a motor vehicle excise tax upon a tribe and its members whe n the tax was not “tailored to the amount of actual off-reservation use”); Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation , 425 U.S. 463, 480-81 (1976) (concluding that a state personal property tax on m otor vehicles was invalid as to a tribe and its members). We also take note of cases such as Red Lake Band of Chippewa Indians v. State , 248 N.W.2d 722 (Minn. 1976), and Queets Band of Indians v. Washington , 765 F.2d 1399 (9th Cir. 1985), vacated as moot , 783 F.2d 154 (1986), each of which involved a tribal challen ge to state motor vehicle registration and titling laws on the basis of feder al law.

2. Article III Case or Controversy and Standing The next issue raised by the defendants is whether the tribe’s claim presents an Article III case or controversy. Though the def endants raised this issue below,-13-

the district court did not address it, simply grant ing the TRO and preliminary injunction to the tribe without comment. “We revie w de novo issues . . . that are prerequisites to this court’s jurisdiction.” Office of Thrift Supervision v. Overland Park Fin. Corp. (In re Overland Park Financial Corp.) , 236 F.3d 1246, 1253-54 (10th Cir. 2001). Article III provides that the exercise of the “judi cial Power” is restricted to actual “cases” and “controversies.” U.S. Const. art. III, § 2. Therefore, under Article III, a federal court is prohibited from ent ertaining a case in which the issues are not yet ripe, in which the issues are mo ot, or in which the parties lack a legally cognizable interest in the outcome. See U.S. West, Inc. v. Tristani , 182 F.3d 1202, 1208 (10th Cir. 1999) (noting that “[t]h e case or controversy requirement of Article III admonishes federal court s to avoid premature adjudication and to abstain from entangling themsel ves in abstract disagreements”) (internal quotation marks omitted), cert. denied , 528 U.S. 1106 (2000); Central Wyo. Law Assoc., P.C. v. Denhardt , 60 F.3d 684, 687 (10th Cir. 1995) (noting that, under the case-or-controversy l imitation of Article III, a case must be live and not moot); AMISUB (PSL), Inc. v. State of Colo. Dep’t of Soc.
Servs. , 879 F.2d 789, 794 (10th Cir. 1989) (noting that, if a party “does not have a legally cognizable interest in the outcome of the case, no live controversy exists-14-

– any issuing federal opinion would be purely advis ory, and, as such, prohibited by Article III”). Because there are live issues before us waiting to be resolved, we hold that the instant case is neither lacking in ripeness normoot. Though the tribe has ceased issuing registrations and titles since the s tay of the preliminary injunction, it has done so on a temporary basis only; moreover, the tribal motor vehicle code has not been repealed, and there are still four veh icles with tribal registrations and titles in use. As to the defendants’ contention that there is no c ase or controversy because the tribe lacks a legally cognizable intere st, that matter is better addressed in the context of standing, which is another issue raised by the defendants. See Citizens Concerned for Separation of Church & St. v. City & Cty. of Denver , 628 F.2d 1289, 1294 (10th Cir. 1980) (noting that“the standing doctrine has evolved as a doctrine of constitutiona l limitation on the federal judicial power found in the ‘case or controversy’ l anguage of Article III”). As before, the defendants argued this issue below, butthe district court did not specifically address it when granting the TRO and p reliminary injunction. We apply de novo review. See Overland Park , 236 F.3d at 1253-54.-15- Standing is an essential part of the case-or-contro versy requirement and involves three elements. First, th e plaintiff must have suffered an invasion of a legally-protected in terest that is concrete and particularized, and actual or imminent , not conjectural or hypothetical. Second, there must be a causal co nnection between the injury and the complained of conduct; that is, the injury must be fairly . . . trace[able] to the challenged action o f the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court. Finally, it must be likely, not merely speculative, that the injury will be redressed by afavorable decision. Gilbert v. Shalala , 45 F.3d 1391, 1393-94 (10th Cir. 1995) (citations and internal quotation marks omitted). According to the defendants, the tribe does not hav e standing because it has not suffered any injury through the state’s refusal to grant recognition to the tribally issued registrations and titles. We disag ree. Motor vehicle registration and titling is a traditional governmental function. See Crow Tribe of Indians v.
Montana , 650 F.2d 1104, 1110 (9th Cir. 1981); Red Lake , 248 N.W.2d at 725. The state’s refusal to extend recognition, therefor e, causes an obvious harm to the tribe: interference with or infringement on tribal self-government. Cf. Moe , 425 U.S. at 469 n.7 (addressing tribe’s contention thatstate motor vehicle tax could not be imposed on tribe and its members and noting that “the Tribe, Qua Tribe, ha[d] a discrete claim of injury with respect to th ese forms of state taxation so as to confer standing upon it apart from the monetary injury asserted by the-16-

individual [tribal members]”). Protection of that right is the foundation of federal Indian law; accordingly, we conclude that the tribe has standing.

3. Younger Abstention In addition to these jurisdictional arguments, the defendants argue that the district court should have abstained under Younger v. Harris , 401 U.S. 37 (1971). During the proceedings below, the district court fo und that “the parties agreed that Younger abstention was not applicable,” Aplts’ Br. at 45, and therefore did not address it. On appeal, the defendants contend that they never conceded the point and, from the record, it appears that this is true. See Aplts’ App. vol. III, at 103 (counsel for tribe, not defendants, arguing at clarification hearing that the Younger abstention issue was moot). We review the issue de novo. See J.B. ex rel. Hart v. Valdez , 186 F.3d 1280, 1291 (10th Cir. 1999). Younger abstention is predicated on the “desire to permit state courts to try state cases free from interference by federal courts.” Younger , 401 U.S. at 43. Under Younger , it is appropriate for a federal court to abstain from hearing a case if (1) a state judicial proceeding is ongoing; (2) an important state interest is at stake; and (3) there is an adequate opportunity in the state proceeding to raise-17-

federal claims. See Seneca-Cayuga Tribe of Okla. v. Oklahoma , 874 F.2d 709, 711 (10th Cir. 1989). The defendants suggest that we should abstain in th e instant case because future prosecutions based on a failure to comply wi th the state motor vehicle registration and titling laws are possible. The po ssibility of future prosecutions, however – even the likelihood of future prosecution s – is not sufficient to justify Younger abstention. As noted above, before Younger abstention may be invoked, “there must be an ongoing state . . . proceeding[],” Taylor v. Jaquez , 126 F.3d 1294, 1297 (10th Cir. 1997) (emphasis added). Because the defendants have not pointed to any such state proceeding (all citations issued to the tribe or its members having been resolved), Younger abstention is patently inapplicable.

B. Preliminary Injunction Having addressed the defendants’ jurisdictional arg uments, we now proceed to the defendants’ challenge to the preliminary inj unction entered by the district court. As noted above, the district court enjoined the defendants from “any further application or enforcement of the Kansas mo tor vehicle registration or titling laws against the [tribe] and any persons wh o operate or own a vehicle registered and titled under [the] Tribal Code . . . .” Aplts’ App. vol. II, at 143-18-

(district court order, filed Oct. 13, 1999). The defendants contend that the district court erre d in granting this injunctive relief on several grounds. First, they assert that the preliminary injunction was not sufficiently specific as require d by Federal Rule of Civil Procedure 65(d). Second, they argue that as a matt er of law the district court applied the wrong standard in deciding to issue the preliminary injunction. Finally, they contend that, even if the district co urt applied the proper standard, the tribe failed to demonstrate that a preliminary injunction was necessary. We review de novo the issue of specificity under Rule 65(d). See Reliance Ins. Co. v.
Mast Constr. Co. , 159 F.3d 1311, 1316 (10th Cir. 1998). We review for an abuse of discretion the grant of a preliminary injunction. See ACLU v. Johnson , 194 F.3d 1149, 1155 (10th Cir. 1999). A district courtabuses its discretion if it “commits an error of law, or is clearly erroneous i n its preliminary factual findings.” Id. (internal quotation marks omitted).

1. Specificity: Federal Rules of Civil Procedure 65(d) and 52(a) On appeal, the defendants first argue that the prel iminary injunction granted by the district court was not sufficiently specific as required by Federal Rule of Civil Procedure 65(d). According to the st ate, it was not clear from the-19-

district court order “precisely what acts [were bei ng] forbidden.” Aplts’ Br. at
33. Rule 65(d) provides that [e]very order granting an injunction . . . shall se t forth the reasons for its issuance; shall be specific in terms; shall des cribe in reasonable detail, and not by reference to the complaint or ot her document, the act or acts to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, emplo yees, and attorneys, and upon those persons in active concert or partici pation with them who receive actual notice of the order by personal service or otherwise. Fed. R. Civ. P. 65(d). “[T]he specificity provisio ns of Rule 65(d) are no mere technical requirements. The Rule was designedto prevent uncertainty and confusion on the part of those faced with injun ctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood.” Schmidt v. Lessard , 414 U.S. 473, 476 (1974) (per curiam); see also Keyes v. School Dist. No. 1, Denver, Colo. , 895 F.2d 659, 668 (10th Cir. 1990) (noting that “an injunction [m ust] be reasonably specific in identifying what acts are prohibited orrequired, both to give notice to the defendant of what is prohibited, and to guide an appellate court in reviewing the defendant’s compliance or no ncompliance with the injunction”).-20-

However, Rule 65(d) does not require the impossible. See Reliance , 159 F.3d at 1316-17 (“‘There is a limit to what words c an convey. . . . The right to seek clarification or modification of the injunctio n provides assurance, if any be sought, that proposed conduct is not proscribed.’”) (quoting Scandia Down Corp. v. Euroquilt, Inc. , 772 F.2d 1423, 1431-32 (7th Cir. 1985)); see also Johnson v. Radford , 449 F.2d 115, 117 (5th Cir. 1971) (“A temporary i njunction is intended to be temporary, to meet the exigencies of the situ ation, and necessarily at times lacks the degree of precision which may be requiredon final decree.”). A preliminary injunction is vague only when “the deli neation of the proscribed activity lacks particularity or when containing onl y an abstract conclusion of law, not an operative command capable of enforcement.” CF&I Steel Corp. v. United Mine Workers of America , 507 F.2d 170, 173 (10th Cir. 1974) (internal quot ation marks omitted). Here, the preliminary injunction provided that the state was barred from “any further application and enforcement of the Kan sas motor vehicle registration or titling laws against the [tribe] and any persons who operate or own a vehicle registered and titled under [the tribal motor vehic le code]. This order applies to vehicles driven both on and off of the [tribe’s] re servation.” Aplts’ App. vol. II, at 143 (district court order, filed Oct. 13, 1999). The order also stated that “[t]his-21-

injunction is not meant to have any effect on cases which are currently pending before any Kansas state court and is not meant to h ave any effect on Kansas traffic laws that do not deal directly with vehicle registration, vehicle license plates[,] and motor vehicle titles.” Id. We are at a loss as to how this order was inadequat e under Rule 65(d). At issue in this case is whether the state must grant recognition to motor vehicle registrations and titles issued by the tribe. The preliminary injunction addressed this issue head on and stated precisely what conduc t was being enjoined: Vehicles registered and titled by the tribe could n ot be cited for noncompliance with state registration and titling laws. Notably, the defendants in their brief fail to explain how the preliminary injunction was lacki ng, simply stating in conclusory terms that “the order of injunctive reli ef fails to meet the specificity standards [of Rule 65].” Aplts’ Br. at 32. During the proceedings below, the defendants did argue that the TRO was not sufficiently specific because it was “unclear o r perhaps subject to interpretation what the term[s] applying and enforc ing [as used in the TRO] mean[t].” Aplts’ App. vol. III, at 28. The defend ants also argued that it was “unclear” as to whether “the [TRO] only applie[d] t o [Kan. Stat. Ann. §] 8-142, which is the issuance of traffic tickets,” or was broader in “scope and extent.” Id.-22-

at 76-77. To the extent that these are the defenda nts’ grounds for challenging the preliminary injunction , we hold that they are meritless. There was nothi ng vague about the use of the words “apply” and “enforce” in the district court’s order; indeed, it is the norm to speak of the application and enforcement of laws. Nor was the scope and extent of the preliminary injunct ion unclear simply because the order did not list the exact state laws that could not be applied to the tribe and its members. It is sufficient that the preliminary inj unction provided that “[t]his injunction is not meant to have any effect . . . on Kansas traffic laws that do not deal directly with vehicle registration, vehicle license plates[ ,] and motor vehicle titles.” Aplts’ App. vol. II, at 143 (district cou rt order, filed Oct. 13, 1999) (emphasis added); cf. Reliance , 159 F.3d at 1316 (“Rule 65(d) requires only that the enjoined conduct be described in reasonable, no t excessive, detail – particularly in cases like this when overly precise terms would permit the very conduct sought to be enjoined.”). Though the preliminary injunction is in accord withRule 65(d), there is some question as to whether it complies with Federa l Rule of Civil Procedure 52(a). Under Rule 52(a), a district court is requi red to make findings of fact and conclusions of law at the time it enters a preliminary injunction. See Fed. R. Civ. P. 52(a); Mesa Petroleum Co. v. Cities Serv. Co. , 715 F.2d 1425, 1433 (10th Cir.-23-

1983). Our concern here is with the adequacy of th e findings and conclusions made by the district court. As a preliminary matter, we note that the defendant s do not explicitly raise this argument on appeal. However, we are compelledto address the issue because, without adequate findings of fact and conc lusions of law, appellate review is in general not possible. See Knapp Shoes, Inc. v. Sylvania Shoe Mfg. Corp. , 15 F.3d 1222, 1227 (1st Cir. 1994) (noting that Rule 52(a) requires a trial court to “set forth the findings of fact and conclu sions of law which constitute the grounds of its action” and that the rule “reflects the importance of injunctions and of providing an adequate basis for their appellate review”) (internal quotation marks omitted); Curtis v. Commissioner , 623 F.2d 1047, 1051 (10th Cir. 1980) (noting that a trial court’s findings of fact “may be challenged as inadequate to give a clear understanding of the process by which the court’s ultimate conclusions were reached and thus inadequate to permit appellate review”). In the instant case, the district court made no explicit factual findings or legal conclusions when it issued the preliminary injunction. See Aplts’ App. vol. II, at 143 (district court order, filed Oct. 13, 19 99) (simply granting the preliminary injunction and stating its parameters). It did, however, give findings of fact and conclusions of law when it granted the TRO. For purposes of this-24-

opinion, we assume that it is proper for us to lookto the findings and conclusions in the TRO because the parties agreed that the TRO was in effect a preliminary injunction. See id. vol. II, at 93 (defendants’ request for clarificat ion, filed Sept. 27, 1999) (noting that the TRO was in effect a preliminary injunction); id. vol. III, at 89 (counsel for tribe at clarification hear ing) (“So the way I see this hearing [for clarification] today is . . . we are r eady to have the Court determine that a preliminary injunction should be issued.”). In granting the TRO, the district court made the fo llowing findings of fact and conclusions of law: The court finds that if the defendants are not enjo ined from enforcing the Kansas motor vehicle registration and titling l aws pending the outcome of this case, the plaintiff would suffer ir reparable injury. The court has considered the parties’ arguments con cerning the balancing of potential injury to the parties and fi nds that the potential harm to the plaintiff if the temporary restraining order is not issued outweighs any potential harm to the defendants whic h would be caused by the issuance of the order. The court further finds that the issuance of this temporary restraining order would not be contrary to the public interest. If the plaintiff satisfies the first three elements , the standard for meeting the fourth requirement, likelihood of p revailing on the merits, becomes more lenient. In such a case, the plaintiff need only show that the issues are so serious, substantial, d ifficult, and doubtful as to make them fair ground for litigation . Given this standard, the court finds that the plaintiff has me t its burden of showing a likelihood of prevailing on the merits.-25-

Id. vol. II, at 85-86 (district court order, filed Sep t. 23, 1999) (citation omitted). Though we accord great deference to the district co urt, we believe that these findings do not give a clear understanding of the process by which its ultimate conclusions were reached. Although Rule 5 2(a) does not require “overelaboration of detail or particularization of facts ,” conclusory findings are not sufficient compliance with the Federal Rules of Civil Procedure. Knapp , 15 F.3d at 1228 (internal quotation marks omitted); see also EEOC v. United Virginia Bank/Seaboard Nat. , 555 F.2d 403, 406 (4th Cir. 1977) (“When the tria l court provides only conclusory findings, illuminated by n o subsidiary findings or reasoning on all the relevant facts, . . . there is not that ‘detail and exactness’ on the material issues of fact necessary for an unders tanding by an appellate court of the factual basis for the trial court’s findings an d conclusions . . . .”). There are times, however, when a district court’s f ailure to comply with Rule 52(a) will not necessitate a remand for clarif ication. For example, it has been held that a court of appeals can consider a di strict court’s failure to make adequate findings of fact as nonreversible error if it can ascertain from the record that one party or the other was clearly entitled to judgment in its favor. See Kweskin v. Finkelstein , 223 F.2d 677, 679 (7th Cir. 1955); see also United States ex rel. Citizen Band Potawatomi Indian Tribe of Okl a. v. Enterprise Mgmt.-26-

Consultants, Inc. , 883 F.2d 886, 889 (10th Cir. 1989) (noting the same). It has also been held that, if “[t]here is . . . no dangerof confusion about what is required by the order or the basis of the decision [and] the record on appeal supports the court’s order and indicates the court heard evidence on each element[,] . . . any lack of specific findings of fact is harmless error.” Anthony v. Texaco, Inc. , 803 F.2d 593, 600 (10th Cir. 1986) (citations omi tted). Accordingly , we conclude that, in the instant case, a remand for clarification is not necessary: It was clear from the preliminary i njunction what activity was being proscribed, and the record on appeal indicate s not only that the district court heard evidence on the matter but also that th e evidence supported issuance of the preliminary injunction.

2. Preliminary Injunction Standard The defendants argue next that the district court applied the wrong standard in deciding to grant the tribe the preliminary injunction. See SCFC ILC, Inc. v. Visa USA, Inc. , 936 F.2d 1096, 1098 (10th Cir. 1991) (noting thatthis court “will set aside a preliminary injunction if the district court applied the wrong standard when deciding to grant the preliminary injunction m otion”). Ordinarily, a party seeking a preliminary injunction must satisfy a fou r-factor test in order to be-27-

awarded such temporary relief. The requesting party must demonstrate (1) that it has a substantial likelihood of prevailing on the m erits; (2) that it will suffer irreparable harm unless the preliminary injunction is issued; (3) that the threatened injury outweighs the harm the preliminary injunction might cause the opposing party; and (4) that the preliminary injunc tion if issued will not adversely affect the public interest. See Federal Lands Legal Consortium v. United States , 195 F.3d 1190, 1194 (10th Cir. 1999) [hereinafter FLLC ]. “As a preliminary injunction is an extraordinary remedy, the [request ing party’s] right to relief must be clear and unequivocal.” Visa , 936 F.2d 1098 (citation omitted). That being said, there is one slight wrinkle to thi s four-factor test. If the party seeking the preliminary injunction can establ ish the last three factors listed above, then the first factor becomes less strict – i.e., instead of showing a substantial likelihood of success, the party need o nly prove that there are “questions going to the merits . . . so serious, su bstantial, difficult, and doubtful as to make the issue ripe for litigation and deserv ing of more deliberate investigation.” FLLC , 195 F.3d at 1194. In the instant case, the district court applied thi s “traditional” standard, finding that the tribe had satisfied the last three factors and that it had also met the first factor under the more lenient formulation . It therefore granted the tribe4 In this circuit, there are three types of prelimi nary injunctions that are

disfavored: (1) those that afford the moving party substantially all the relief it might recover after a full trial on the merits, (2) those that disturb the status quo, and (3) those that are mandatory as opposed to prohibitory. See Visa , 936 F.2d at 1098-99. In the instant case, the defendants do no t sufficiently argue that the preliminary injunction was mandatory in nature. See King v. Town of Hanover , 116 F.3d 965, 970 (1st Cir. 1997) (“It is an establ ished appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. . . . It is not e nough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work.”) (internal quotation marks omitted). -28- the preliminary injunction, enjoining the defendant s from enforcing the state registration and titling laws with respect to the t ribe and its members. On appeal, the defendants argue that the traditional standard should not have been used because the preliminary injunction issued by the di strict court (1) afforded the tribe substantially all the relief it might recoverafter a full trial on the merits and (2) disturbed the status quo. According to the def endants, these types of preliminary injunctions are disfavored, and, before a disfavored preliminary injunction may be granted, the requesting party mus t satisfy a “heightened” standard – i.e., demonstrate that the four factors listed above weigh “heavily and compellingly” in its favor. 4 See Kikumura v. Hurley , No. 99-1284, 2001 WL 237373, at *3 (10th Cir. Mar. 9, 2001) (internal qu otation marks omitted).

a. Granting Substantially All the Relief Sought-29-

As a preliminary matter, we note that the defendant s never argued before the district court that a heightened standard shoul d apply on the ground that the preliminary injunction desired by the tribe would a fford it substantially all the relief it might recover. In light of this fact, we consider the argument waived.
See Vitkus v. Beatrice Co. , 127 F.3d 936, 946 (10th Cir. 1997) (“As a general rule, a federal court of appeals will not consider an issue not passed upon below.”). Even if the argument had been properly presented, w e would not rule in the defendants’ favor. “[T]he terms ‘all the relief to which the movant would be entitled’ or ‘all the relief sought’ have . . . bee n the source of confusion because, read literally, they appear to describe any injunct ion where the final relief for the plaintiff would simply be a continuation of the preliminary relief.” Tom Doherty Assoc., Inc. v. Saban Entm’t, Inc. , 60 F.3d 27, 34 (2d Cir. 1995). There is no reason, however, to disfavor a preliminary injuncti on simply because “the plaintiff would get no additional relief if he prev ailed at the trial on the merits.” Id. (internal quotation marks omitted). The only reas on to disfavor a preliminary injunction that grants substantially all the relief sought is if it would “render a trial on the merits largely or completely meaningless.” Id. at 35. Therefore, “‘all the relief to which a plaintiff may be entitled’ mu st be supplemented by a further-30-

requirement that the effect of the order, once comp lied with, cannot be undone.” Id. ; see also id. (giving examples of preliminary relief that cannotbe undone – for instance, “a case involving the live televising of an event scheduled for the day on which preliminary relief is granted” or “a case inv olving the disclosure of confidential information”). In the instant case, the relief ultimately sought b y the tribe was state recognition of its registrations and titles. The p reliminary injunction issued by the district court gave the tribe at most only temporary recognition, not permanent. In other words, if the tribe was not su ccessful at trial, then the defendants would be permitted to cite any vehicle w ith a tribal registration and title. Therefore, the preliminary injunction grant ed by the district court did not, as the defendants contend, afford the tribe substantially all the relief it might recover. This interim relief, quite simply, was not “complete.” Eng v. Smith , 849 F.2d 80, 82 (2d Cir. 1988).

b. Altering the Status Quo During the proceedings below, the defendants sugges ted to the district court that a heightened standard, and not the traditional one, should apply because the injunctive relief sought by the tribe would change the status quo. More-31-

specifically, Mr. Brownlee asserted, in his response to the tribe ’s motion for a TRO, that “[c]ourts have applied certain additional standards in judging a request for injunctive relief which should be considered wi th regard to the tribe’s present motion for TRO . . . . [For example,] an injunction will not issue which has the effect of disturbing the status quo.” Aplts’ App. vol. II, at 46 (Mr. Brownlee’s response to tribe’s motion for a TRO, filed Sept. 2 5, 1999). Nothing more was said on the status quo issue, though, until the clarification hearing on October 7, 1999, in which the district court responded to the defendants’ “objections” to the issuance of the TRO. During that hearing, the defendants for the first t ime articulated with any substance their status quo argument: On September 23[d], the Court took like a snapshot of the situation and said, ‘The balance of harms appears to be in favor of granting the TRO for the Plaintiff.’ But what the Plaintiff has done with that TRO since is taken advantage of the situation by is suing many more tribal registrations . . . . [T]here were 20 at that the time that we stood in front of you a week ago [when the TRO was issued]. And we feared that – you know, 20 vehicles is a status quo. But since then, they have apparently taken advantag e of the situation. They have between 400 and 500 members that they could be issuing these registrations to. . . . [T]he prob lem is that the state is restrained while the other party is not. And the o ther party is free to use the Court’s order as a sword, not as a shield and to take action to change the status quo.-32-

Aplts’ App. vol. III, at 79-80 (counsel for Mr. Bro wnlee at clarification hearing). The district court did not respond to the argument and simply converted the TRO it had issued to a preliminary injunction. Subsequently, the defendants presented the same arg ument before the district court when they sought a stay of the preli minary injunction pending appeal. Once again, the district court did not add ress the argument and simply denied the application for stay. This led the defe ndants to file an application for stay before this court, which was ultimately grante d on November 9, 1999. Notably, the defendants’ argument before this courtwas, yet again, that the preliminary injunction altered the status quo becau se, while it prevented the state from issuing more citations, “it free[d] the tribe to issue as many tribal tags and registrations to whomever it wishe[d].” Aplts’ App . for Stay at 5 (filed Oct. 18, 1999). From this review of the proceedings, it is clear th at the defendants did preserve for our consideration the general issue of status quo. But it should be noted that, on appeal, the defendants present a mar kedly different status quo argument, one never raised before the district court – i.e., that the preliminary injunction disturbed the status quo because, prior to the lawsuit, the “last uncontested status” between the parties was when th e tribe had no motor vehicle-33-

code of its own and willingly complied with the state registration and titling laws.
See Visa , 936 F.2d at 1100 n.8 (defining status quo as “the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing”) (internal quotation marks omitted). We do not approve of this sudden change of tune by the defendants. Consequently, we do not consider on appeal the defe ndants’ new status quo argument. See Fed. R. Civ. P. 46 (requiring that “a party, at th e time the ruling or order of the court is made or sought, make[] known to the [trial] court the action which the party desires the court to take or the pa rty’s objection to the action of the court andthe grounds therefor”) (emphasis added); Shultz v. Rice , 809 F.2d 643, 647 (10th Cir. 1986) (noting that a trial court should be “provide[d] . . . with the opportunity to know the specific contentions an d to take corrective action, if required”); see also Singleton v. Wulff , 428 U.S. 106, 121 (1976) (“The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals.”). We limit our review instead to the argument that the defendants made be low, that is, that the preliminary injunction changed the status quo becau se, although it restrained the state from issuing more citations, it did not restr ict the tribe from issuing more registrations and titles.-34-

To begin our analysis, we agree with the defendants that the preliminary injunction did not name the tribe as a restricted p arty. It simply specified that the defendants were restrained from acting – i.e., from “any further application and enforcement of the Kansas motor vehicle registratio n or titling laws against the [tribe] and any persons who operate or own a vehicl e registered and titled under [the] Tribal Code . . . .” Aplts’ App. vol. II, at143 (district court order, filed Oct. 13, 1999). It seems to us, then, that under the te rms of the preliminary injunction the tribe was in fact free to increase its registration and titling if it so desired. But while the preliminary injunction permitted the tribe to proceed with more registration and titling, it did not as a necessary consequence protect all registration and titling. According to the prelimi nary injunction, only vehicles “register edand titl ed ” under the tribal motor vehicle code were protecte d. The use of the past tense here is significant. It indi cates that the preliminary injunction applied only to those tribal registrations and titles already existing as of the time the preliminary injunction was entered. Had the preliminary injunction been intended to include future tribal r egistrations and titles, it would have read differently. For example: “The defendan ts are enjoined from applying and enforcing the state registration and titling laws with respect to vehicles5 Our narrow reading of the preliminary injunction is justified not only

because of the language used but also because of th is court’s authority to modify overbroad injunctions. See United States v. Jenks , 22 F.3d 1513, 1519 (10th Cir. 1994).

-35- registered and titled, or to be registered and titled , under the tribal motor vehicle code.” 5 Because the preliminary injunction extends only to those tribal registrations and titles already existing prior to its issuance, we reject the defendants’ argument that the preliminary injunction disturbed the statu s quo. Status quo means literally “[t]he situation that currently exists,” Black’s Law Dictionary 1420 (7th ed. 1999), and at the time the tribe filed suit the situation currently existing was one in which (1) the state motor vehicle code was i n force, (2) the tribal motor vehicle code was in force, and (3) approximately tw enty tribal registrations and titles were in use. The preliminary injunction iss ued by the district court in essence “froze” that moment in time, giving (tempor ary) validity to the tribal registrations and titles already issued but no more . As the defendants themselves recognized, “[T]he Court took like a snapshot of th e situation.” Aplts’ App. vol. III, at 79 (counsel for Mr. Brownlee at clarification hearing); see also Massachusetts Mut. Life Ins. v. Associated Dry Goods Corp. , 786 F. Supp. 1403,-36-

1427 (N.D. Ind. 1992) (recognizing that the status quo could but “need not consist of a photographic replication of the circumstances existing at the moment suit was filed”). Because the preliminary injunction issued by the district court did not change the status quo, the district court properly applied the traditional standard rather than the heightened one.

3. Preliminary Injunction Merits Having established that the district court properlyused the traditional standard in deciding whether to issue the preliminary injunction, we now proceed to the defendants’ merit-based challenge to the inj unctive relief. We review for an abuse of discretion. See ACLU , 194 F.3d at 1155. Under this deferential standard of review, we conclude that the district c ourt did not abuse its discretion in analyzing the following four factors: (1) irrep arable harm, (2) balancing of potential harms, (3) public interest, and (4) subst antial likelihood on the merits.

a. Irreparable Harm The concept of irreparable harm, unfortunately, “do es not readily lend itself to definition.” Wisconsin Gas Co. v. Federal Energy Regulatory Comm’n , 758 F.2d 669, 674 (D.C. Cir. 1985). Case law has provi ded some guidance, however,-37-

noting for example that the injury “must be both certain and great,” id. ; and that it must not be “merely serious or substantial.” A.O. Smith Corp. v. FTC , 530 F.2d 515, 525 (3d Cir. 1976). Cases have also noted that irreparable harm is often suffered when “the injury can[not] be adequately atoned for in money,” id. ; or when “the district court cannot remedy [the injury] following a final determination on the merits.” American Hosp. Ass’n v. Harris , 625 F.2d 1328, 1331 (3d Cir. 1980). Given these definitions, we hold that the district court did not abuse its discretion in determining that, without the prelimi nary injunction, the tribe would suffer irreparable harm. First, the injury to the tribe was “certain and great” and more than “merely serious or substantial.” As note d above, motor vehicle registration and titling is a traditional governmen tal function. The tribe instituted its motor vehicle code not out of whim but because of a need to “control[] the access and presence of persons to and on [the] Rese rvation territory,” a result of “an increasing number of motor vehicles . . . being used by Indian and non-Indian persons to enter the Reservation territory in orderto engage in gaming and other activities with Tribal enterprises or members.” PB MVC § 17-1. Thus, the threat of continued citation by the state created the “pro spect of significant interference with [tribal] self-government.” Seneca-Cayuga , 874 F.2d at 716 (finding6 The defendants seem to suggest that the tribe wou ld not suffer irreparable

injury without the preliminary injunction because m ultiple compliance – i.e., compliance with both the tribal and the state regis tration and titling laws – is possible. See Aplts’ App. vol. III, at 74-75 (counsel for Ms. Pi erce and Ms. Walker) (“There is nothing wrong with Kansas plates and Kansas titles on the back of a vehicle, and if they want to put an India n plate on the front of the vehicle, they’re free to do so.”). We disagree. It is not clear, for example, that a vehicle owner can have in her possession two certificates of title, one issued by the tribe and a second issued by the state. See PBMVC § 17-10-19(A)(8) (“Each applicant for a [tri bally issued] certificate of title shall surrender to the Registrar . . . any and all other certificate of title (continued...) -38- irreparable injury where threatened loss of revenue s and jobs created “prospect of significant interference with [tribal] self-governm ent”). Second, the injury to the tribe was irreparable bec ause it could not be adequately compensated for in the form of monetary damages. Not only is harm to tribal self-government not easily subject to val uation but also, and perhaps more important, monetary relief might not be availa ble to the tribe because of the state’s sovereign immunity. See Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs. , 31 F.3d 1536, 1543 (10th Cir. 1994) (noting that “plaintiffs had established harm – a legally cogniz able injury to them resulting from noncompliance with the Boren Amendment” and th at the “plaintiffs’ injury was irreparable” because “the Eleventh Amendment bars a legal remedy in damages”). 6(...continued)

issued by any other governmental agency of any stat e which is held by the applicant . . . as a prerequisite to receiving a ce rtificate of title from the Prairie Band of Potawatomi . . . .”). Without a certificat e of title for each sovereign, the owner could not have her vehicle registered with each sovereign. See PBMVC § 17-10-4(D) (noting that a certificate of title “is a prerequisite to registration of [a] vehicle”); Kan. Stat. Ann. § 8-135(c) (noting that “[n]o vehicle required to be registered shall be registered . . . unless the app licant for registration shall present satisfactory evidence of ownership and apply for anoriginal certificate of title for such vehicle”). -39-

b. Balancing of Potential Harms According to the defendants, the district court fai led to give adequate consideration to the harm the state would suffer up on issuance of the preliminary injunction. As framed by the defendants, the injury to the state was largely one of safety: Vehicles with tribally issued registration s and titles do not appear in the national crime database, and so a law enforcement o fficer who stops such a vehicle has “no idea if that car is stolen [or] if there are any warrants out on the driver,” Aplts’ App. vol. III, at 27 (counsel for M s. Pierce and Ms. Walker); consequently, the lives of law enforcement officers as well as the lives of “the public at large” are placed in danger. Id. at 86 (counsel for Mr. Brownlee). While the defendants raise a legitimate concern, we cannot say that the district court abused its discretion in determining that the injury to the tribe was-40-

the more substantial. We note first that, given th e record, it does not seem an impossible task for the tribe to have its relativel y small number of registrations and titles become a part of the national database. The defendants vehemently protest that “the Department of Revenue will not ac t as the Tribe’s data entry clerks for inputting data into our system,” Aplts’ App. vol. III, at 106 (counsel for Ms. Pierce and Mr. Walker at clarification hearing) , but there is no indication in the record that the tribe was prevented from having its own data entry clerk or possibly even its own system to be linked to the national database. In addition, the record indicates that the defendan ts might have exaggerated the safety problem. In that respect, we take note of the following: (1) Master Trooper Gary Thiessen of the Kansas Highway Patrol stated outright in an incident report that “this issue was not one of saf ety, but one of revenue,” Aplts’ App. vol. III, at 118 (Kansas Highway Patrol Combin ed Incident Report, dated Aug. 12, 1999); (2) vehicles with tribal registrati ons and titles were in use for several months without any safety-related incident; (3) Jackson County Attorney Micheal A. Ireland did not seem troubled by the saf ety issue, voluntarily adopting a policy under which no citations would be issued t o the tribe or its members until a meeting could be held, see id. , at 110 (affidavit of Mr. Ireland); (4) the safety issue did not appear to worry the state of Minnesot a, which granted recognition to-41-

the tribe’s registrations and titles; and (5) in sp ite of its concern about safety, Kansas still recognizes the registrations and title s of tribes residing outside the
state. See note 2, supra

. The defendants argue, however, that aside from the safety problem there is another injury to which the district court did not give adequate consideration: interference with state sovereignty. See Aplts’ Br. at 26 (“Kansas has a significant and special sovereign interest in regul ating and administering its laws on behalf of all of its citizens on the public road s and highways that cross over its territory.”). This argument does give us some conc ern; yet again we cannot say that the district court abused its discretion in fi nding that, in this limited area, the threatened injury to tribal sovereignty outweighed the potential harm to state sovereignty. Federal Indian law is replete with ex amples in which state law has had to accommodate tribal sovereignty, whether beca use of federal preemption or because of the guardian-ward relationship between the federal government and Indian tribes. See Felix S. Cohen, Handbook of Federal Indian Law 234 (1982 ed.) (“[Chief Justice] Marshall said [in Worcester v. Georgia , 31 U.S. 515 (1832)] that the United States had assumed the role of ‘pro tector’ of the Indian tribes, acknowledging and guaranteeing their security as di stinct political communities in exchange for their friendliness to the United State s.”). Furthermore, the state has-42-

not been prevented from enforcing its registration and titling laws wholesale – only with respect to the tribe and its members. In contrast, without the preliminary injunction, the tribe’s registration an d titling would likely have come to an end.

c. Public Interest The defendants argue next that the preliminary inj unction was adverse to the public interest, largely because of the safety concern discussed above. In response, the tribe asserts that the public has an interest in encouraging tribal self-government and that the tribal motor vehicle l aws benefitted the public by “provid[ing] a safe and efficient transportation sy stem [and by] establish[ing] standards for the registration of vehicles [and] th e issuance of certificates of title.” Aplts’ App. vol. III, at 95-96 (counsel fo r tribe at clarification hearing). The tribe also argues that a denial of the prelimin ary injunction would have harmed the public because, under the tribal code, i f the state did not grant recognition, the tribe “would be required . . . in return to deny recognition to state issued registrations and titles under tribal law.” Aplts’ App. vol. III, at 15-16 (counsel for tribe at TRO hearing); see also PBMVC § 17-10-5(I) (“A vehicle, even though operated upon roads within the boundari es of this Reservation, is-43-

exempt for [sic] registration when such vehicle . . . [i]s a motor vehicle currently registered in another Jurisdiction and not requiredto be registered with the Prairie Band of Potawatomi. This exemption shall apply onl y to the extent that the other Jurisdiction provides the same privileges and recog nition for the tags and titles issued by the Prairie Band Potawatomi Nation.”). We hold that the district court did not abuse its d iscretion in finding that the public interest would not be adversely impactedby the issuance of the preliminary injunction. As discussed above, the sa fety issue is not as portentous as the defendants would have it; in addition, this court’s case law suggests that tribal self-government may be a matter of public interest. See Seneca-Cayuga , 874 F.2d at 716 (“[T]he injunction promotes the par amount federal policy that Indians develop independent sources of income and s trong self-government.”).

d. Substantial Likelihood of Success Because the tribe established the above three facto rs to the district court’s satisfaction, it was not required to demonstrate a substantial likelihood of success on the merits. Rather, it had only to prove that t here were “questions going to the merits . . . so serious, substantial, difficult, an d doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” FLLC , 195 F.3d at-44-

1194. Again, given our deferential standard of re view, we conclude that the district court did not abuse its discretion by find ing that this factor was met. Under Supreme Court case law, federal preemption is one barrier to the assertion of state regulatory authority over a tribe and its members. See White Mountain Apache Tribe v. Bracker , 448 U.S. 136, 142 (1976). In the context of federal Indian law, the issue of preemption typical ly arises when state law conflicts with (1) an enactment of Congress pursuant to the Indian Commerce Clause or (2) a treaty entered into by the United States and a tribe. See McClanahan v. State Tax Comm’n , 411 U.S. 164, 172 n.7 (1973). Because of “[t]he unique historical origins of trib al sovereignty[,] . . . it [is] generally unhelpful to apply . . . standards of pre -emption that have emerged in other areas of the law.” White Mountain , 448 U.S. at 143. In fact, there are special standards of preemption that apply only to federal Indian law. For example, “in order to find a particular state law t o have been preempted by operation of federal law, [there need not be] an express congressional statement to that effect.” Id. at 144. Similarly, a treaty need not contain an e xpress statement to have a preemptive effect. See, e.g. , McClanahan , 411 U.S. at 174-75 (noting that “[t]he treaty nowhere explicitly state s that the Navajos were to be free from state law or exempt from state taxes” butthat “this Court has-45-

interpreted the Navajo treaty to preclude extension of state law – including state tax law – to Indians on the Navajo Reservation”). Preemption in the context of federal Indian law is also unique in that it rests “principally on a consideration of the competing interests at stake” – i.e., tribal, federal, and state interests. New Mexico v. Mescalero Apache Tribe , 462 U.S. 324, 334 (1983) [hereinafter New Mexico v. Mescalero ] (rejecting “a narrow focus on congressional intent to preempt State law as the sole touchstone”). Another barrier to the exercise of state power is the doctrine of Indian sovereignty. See White Mountain , 448 U.S. at 142 . Under Supreme Court case law, tribal sovereignty is imposed upon if the exer cise of state authority “unlawfully infringe[s] on the right of reservationIndians to make their own laws and be ruled by them.” New Mexico v. Mescalero , 462 U.S. at 334 n.16 (internal quotation marks omitted). Though modern cases tendto focus more on federal preemption to define the limits of state power, the doctrine of Indian sovereignty has not been weeded out of federal Indian law. Rat her, it provides an essential “backdrop against which the applicable [federal] tr eaties and statutes must be read.” McClanahan , 411 U.S. at 172; see also id. at 172 n.8 (“The extent of federal pre-emption and residual Indian sovereignty in the total absence of federal treaty obligations or legislation is . . . now some thing of a moot question. The-46-

question is generally of little more than theoretic al importance . . . since in almost all cases federal treaties and statutes define the boundaries of federal and state jurisdiction.”) (citations omitted and emphasis add ed). In the instant case, there are at least three possi ble barriers to the state’s assertions of authority with respect to motor vehic le registration and titling: First, the various congressional enactments that demonstrate a congressional concern with fostering tribal self-government might preemptthe state laws on registration and titling. See White Mountain , 448 U.S. at 143 & n. 10 (“[T]his tradition [of Indian sovereignty] is reflected and encouraged in a number of congressional enactments demonstrating a firm federal policy of p romoting tribal selfsufficiency and economic development.”). Second, t he several treaties between the United States and the tribe, see 9 Stat. 853 (1846); 12 Stat. 1191 (1861); 15 Stat. 531 (1867); see also 1867 WL 5410 (executive order), might be a basis f or preemption, given that the treaties established the right of the tribe to a reservation and therefore (implicitly) its right to self-govern. See McClanahan , 411 U.S. at 174-75 (“[I]t cannot be doubted that th e reservation of certain lands for the exclusive use and occupancy of the Navajos and the exclusion of nonNavajos from the prescribed area was meant to estab lish the lands as within the exclusive sovereignty of the Navajos under general federal supervision.”).7In its brief, the tribe raises another possible b arrier: the Kansas

Admission Act. See Kansas Admission Act § 1, 12 Stat. 126, 127 (1861) (“[N]othing contained in the said constitution resp ecting the boundary of said State shall be construed to impair the rights of pe rson or property now pertaining to the Indians in said Territory, so long as such r ights shall remain unextinguished by treaty between the United States and such Indian s, or to include any territory which, by treaty with such Indian tribe, is not . . . to be included within the territorial limits or jurisdiction of any State or Territory . . . .”). For purposes of this opinion, we need not address this argument, though the tribe is certainly entitled to present it for consi deration in subsequent proceedings before the district court. We do point out, howeve r, that this court recently issued an opinion on the meaning of the Act. See generally Sac & Fox Nation of Mo. v. Pierce , 213 F.3d 566 (10th Cir. 2000), cert. denied , 121 S. Ct. 1078 (2001). This court suggested in Sac & Fox that an Indian tribe could not assert rights underthe Act unless the tribe had a treaty with the United S tates that reserved those rights to the tribe at the time the Act went into effect. See id. at 577 (“The Act for Admission excludes from the boundaries of the State of Kansas only those lands which Indian tribes reserved unto themselves ‘by tr eaty’ with the United States.”).

-47- Finally, the doctrine of Indian sovereignty might a ct as a bar to state regulatory authority, though as noted above this doctrine typi cally works in tandem with federal preemption instead of as an independent barrier. 7 The defendants argue, however, that the congression al enactments, the treaties, and the doctrine of Indian sovereignty on ly support preemption of state laws on the reservation; they say nothing about the force of state laws beyond the reservation but still within the state. According to the defendants, Mescalero Apache Tribe v. Jones , 411 U.S. 145 (1973) [hereinafter Mescalero ], establishes8The Supreme Court did state that the Mescaleroprinciple “is as relevant to a

State’s tax laws as it is to state criminal laws, and applies as much to tribal resorts as it does to fishing enterprises.” Mescalero , 411 U.S. at 149. We do not take this statement to mean, however, that the facts in Mescaleroare not worthy of any consideration in (continued...) -48- the power of the state once vehicles with tribal re gistrations and titles are taken outside the reservation. They cite the following g eneral principle espoused in Mescalero : “Absent express federal law to the contrary, Ind ians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the State.” Id. at 148-49 (emphasis added). Mescalero is undoubtedly an important decision to be conside red in the resolution of the case at hand, especially since Co ngress did not explicitly provide that states must grant recognition to tribal registration and titling. However, at this point, our concern is not the final merits butrather whether there are “questions going to the merits . . . so serious, su bstantial, difficult, and doubtful as to make the issue ripe for litigation and deserv ing of more deliberate investigation.” FLLC , 195 F.3d at 1195. We believe that there are. Wh ile Mescalero provides support for the defendants’ position, we question whether it can be applied in as broad strokes as the defendant s have used, that is, without taking into consideration the specific facts that animated the case. 8 We reiterate(...continued)

understanding

the principle.

9We disagree with the Ninth Circuit’s conclusion that, under Mescalero , no balancing of interests takes place once the tribal activity takes place off-reservation. See Cabazon Band of Mission Indians v. Smith , No. 99-55229, 2001 WL 521436, at *2 (9th Cir. May 17, 2001) [hereinafter Cabazon II ] (“White Mountain ’s preemption analysis is not applicable to off-reservation activity.”). Rather, we believe that the dissent in Cabazon IIhad the better of it. Seeid. at *8 (Browning, J., dissenting) (noting that the Mescaleroprinciple “was only a generality and not carved in stone on Mt. Sinai”; also noting that the Supreme Court has not restricted the balancing-of-interests test to cases in which the tribal activity is solely on-reservation). That is, we read Mescaleroto say that, if the tribal activity is off-reservation that fact generallytips the balancing test in favor of the state (assuming there is no express federal law to the contrary).
(continued...) -49- that preemption in the context of federal Indian law is about the careful balancing of tribal, federal, and state interests. Depending on the facts, the interests of these three sovereigns may vary. 9 We note, for example, that the tribal activity in Mescalero – the operation of a ski resort located outside reservation land – was conducted clearly and exclusively beyond the reservation, thus heightenin g the interests of the state. The same, however, cannot be said of the activity i n the instant case: Here, the activity conducted by the tribe was the registratio n and titling of vehicles; this activity occurred within the reservation, not beyon d, although as an ancillary consequence driving outside the reservation did occur. 10 See Blue Lake Forest(...continued) 10 Of course, these off-reservation effects should s till be taken into account when it comes to the interests of the state. See, e.g. , New Mexico v. Mescalero , 462 U.S. at 336 (1983) (“A State’s regulatory inter est will be particularly substantial if the State can point to off-reservati on effects that necessitate State intervention.”). -50- Prods., Inc. v. Hong Kong & Shanghai Banking Corp., Ltd. , 30 F.3d 1138, 1141 (9th Cir. 1994) (“Even though this case implicates an off-reservation relationship between two non-Indian actors (Blue Lake and the bank), we deem it an on-reservation case for purposes of preemption because the essential conduct at issue occurred on the reservation: the severance o f timber and its removal without proper compensation, in contravention of th e governing contract and federal regulations. Furthermore, the Indian enterprise at the heart of this dispute – the timbering lands – is located on, not off, the reservation.”); People v. McCovey , 685 P.2d 687, 697 (Cal. 1984) (en banc) (distinguishing Mescalero in part because “the Indian activity in [ Mescalero ] occurred entirely off the reservation, while this case involves on-reservatio n fishing followed by an offreservation sale”). Furthermore, the activity in Mescalero is in no way comparable to the activity in the instant case because the operation of a ski resort is not a traditional governmental function whereas the registration and titling of motor vehicles is.11 We have taken into consideration the Supreme Court’s recent holding in

Atkinsonand conclude that it does not affect the case at hand for at least two reasons: (1) Atkinsondeals with the application of Montana v. United States , 450 U.S. 544 (1981), while our concern here is the application of Mescalero , and (2) Atkinsondeals with tribal authority over nonmembers, whereas here our focus is tribal authority over members.

-51- Because of this fact, the interests of the tribe ar e heightened, a significant counter to the state’s interests in the effects of off-rese rvation driving. Which sovereign’s interests are more important is not at this point amatter appropriate for our consideration. Instead, we merely note that Mescalero ’s distinction between onand off-reservation activities is not necessarily d ispositive, especially in light of the doctrine of Indian sovereignty. As the Supreme Court has repeatedly explained, the powers of tribes extend over not onl y their territory but also their members, see Atkinson Trading Co., Inc. v. Shirley , 121 S. Ct. ---, --- (2001) (“Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory . . . .”) (internal quotation marks omitted) 11 ; therefore, “[u]nder some circumstances tribal power s can extend over members going beyond reservation boundaries.” Cohen, supra , at 246 (emphasis added). “The determinative factor is whether the matter fal ls within the ambit of internal self-government.” Id. ; John v. Baker , 982 P.2d 738, 752 (Alaska 1999) (“[I]n determining whether tribes retain their sovereign p owers, the United States12We do not even address whether Mescalero ’s general principle is applicable in

the first place given that arguably the application of the state motor vehicle laws was not nondiscriminatory. SeeCabazon II , 2001 WL 521436, at *9 (Browning, J., dissenting) (noting that the application of the state motor vehicle laws was in fact discriminatory (continued...) -52- Supreme Court looks to the character of the power that the tribe seeks to exercise, not merely the location of events.”), cert. denied , 528 U.S. 1182 (2000). As one district court summed up, “The extent of tribal sov ereignty . . . clearly involves more than simple geographic limits, but includes th e ‘tradition of Indian sovereignty over the reservation and tribal members .’ Certain aspects of tribal sovereignty, such as tribal immunity from suit, hav e been held to be so fundamental as to preempt the enforcement in court of state laws regardless of where the activity takes place.” Cabazon Band of Mission Indians v. Smith , 34 F. Supp. 2d 1201, 1207 (C.D. Cal. 1998) (quoting White Mountain , 448 U.S. at 143) , aff’d , Cabazon II , 2001 WL 521436. But see id. at *2 (criticizing the district court for making this statement based on its conclusion that Mescalero , not White Mountain , was controlling since the tribal activity at issu e was off-reservation). From this brief analysis of Mescalero , it should be clear that there are indeed “questions going to the merits . . . so seri ous, substantial, difficult, and doubtful as to make the issue ripe for litigation a nd deserving of more deliberate investigation.” 12 FLLC , 195 F.3d at 1195. And we note that Mescalero is only(...continued)

because (1) the tribe was similarly situated to states outside California but received different treatment and because (2) the state laws made an exception for one tribe but not the plaintiff-tribe). -53- the tip of the iceberg. As the parties have pointed out, Red Lake and Queets are two more cases to take into consideration as, in ea ch of these cases, a state was compelled to extend recognition to motor vehicle re gistrations issued by a tribe. See generally Red Lake , 248 N.W.2d at 722; Queets , 765 F.2d at 1399. In addition, the parties should take into account the federal Indian law taxation cases, in particular, Oklahoma Tax Commission and Colville , as in both of these cases the Supreme Court indicated that tribal membe rs could be compelled to pay state motor vehicle registration fees (i.e., taxes) if the fees were tailored to offreservation use (i.e., use of the state roads). See Oklahoma Tax Comm’n , 508 U.S. at 127-28; Colville , 447 U.S. at 162-64. Further examination of Oklahoma Tax Commission and Colville is certainly warranted, though their relevance may be limited because the focus of the state’s interes ts in those cases was revenue and not safety (the primary concern of the defendan ts in the instant case). We also note that titling was not at issue in either Oklahoma Tax Commission or Colville , while it is contested in the case at hand.-54- IV. CONCLUSION We conclude that the district court did have jurisd iction over the instant case and that it did not abuse its discretion in gr anting the preliminary injunction. Under the preliminary injunction, the defendants we re enjoined from issuing more citations but only with regard to those tribal regi strations and titles already issued prior to the grant of the preliminary injunction. Accordingly, we AFFIRM.