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IN THE SUPREME COURT OF THE STATE OF MONTANA
Case No. DA 26-0247
BIG SKY CHRISTIAN CENTER, HOLY GROUND, A Corporation Sole; and HARRIS D. HIMES, Appellant/Defendants.
RAVALLI COUNTY, Appellee/Plaintiff.
APPELLANTS’ EMERGENCY APPLICATION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL — M.R.A.P. 22(1)
On Appeal from the Montana Twenty-First Judicial District Court Ravalli County, Cause No. DV-41-2026-0000109-IJ
Before Hon. Howard F. Recht
| Counsel for Appellants | Counsel for Appellee |
|---|---|
| Quentin M. Rhoades | Bill Fulbright, County Attorney |
| Gabrielle Broere | Jennifer Hurst, Deputy Attorney |
| Rhoades & Erickson PLLC | Ravalli County Attorney |
| 430 Ryman St | Ravalli County Courthouse |
| Missoula, Montana 59802 | 205 Bedford Street, Suite C |
| Telephone: (406) 721-9700 | Hamilton, Montana 59840 |
| courtdocs@montanalawyer.com | rcaoservice@rc.mt.gov |
Appellants Big Sky Christian Center, Inc., Holy Ground, and Harris D. Himes respectfully apply to this Court, pursuant to M.R.A.P. 22(1), for a stay of the Preliminary Injunction entered April 8, 2026, pending resolution of this appeal. The District Court denied Appellants’ Emergency Application for Stay on April 22, 2026.
The compliance deadline runs from the March 31, 2026 oral ruling, which incorporated the March 27, 2026 Compliance Order’s thirty-four-day window. That deadline expires on or about May 4, 2026 — three days from today. Approximately twenty homeless individuals residing in RVs and trailers on the Property face displacement by that date. Once displaced, they cannot be returned. This Court is the only tribunal that can prevent that irreversible harm before the deadline.
The legal case for a stay is not close. The District Court acknowledged the correct four-factor conjunctive standard in Conclusion of Law ¶ 3 of its April 8 Order. It then held, in Conclusion of Law ¶ 4, that “Plaintiff is not required to prove harm” in regulatory enforcement cases, and in Conclusion of Law ¶ 7 that “the failure to comply constitutes irreparable harm.” The District Court’s April 22 denial order doubled down, stating the County does not need “effluent on the ground or a contaminated well” to obtain injunctive relief.
These are explicit holdings that proof of irreparable harm is not required in regulatory enforcement actions. Those holdings are wrong as a matter of law under the 2023 amendment to § 27-19-201, MCA, and this Court’s decisions in Montanans Against Irresponsible Densification, LLC v. State, 2024 MT 200, 418 Mont. 78, 555 P.3d 759, and Planned Parenthood of Montana v. State by & through Knudsen, 2024 MT 227, 418 Mont. 226, 557 P.3d 471. They are reviewed de novo. And they will almost certainly be reversed — the only question is whether twenty people are displaced before that reversal occurs.
Ravalli County filed this action on March 6, 2026, seeking a preliminary injunction requiring Appellants to eliminate all extra dwelling units from the Property at 116–122 Bowman Road, Hamilton, Montana. The Property is owned by Appellant Holy Ground, a Montana religious corporation sole, and has operated as a faith-based homeless shelter since at least 1997. The shelter currently serves approximately sixty residents, approximately twenty of whom reside in RVs and trailers on the Property.
The preliminary injunction hearing was held on March 31, 2026. The County’s principal witness — John Palacio, Director of the Ravalli County Environmental Health Department, and the only County witness to have visited the Property — was asked on cross-examination whether anyone would suffer harm if the injunction were denied. He answered: “possibly.” He was then asked whether harm was likely. He answered again: “possibly.” No other witness testified that harm was probable, likely, or imminent.
The District Court granted the preliminary injunction from the bench on March 31, 2026, and entered written Findings of Fact, Conclusions of Law, and Order on April 8, 2026. Appellants filed a Notice of Appeal and an Emergency Application for Stay in the District Court on April 16, 2026. The District Court denied the stay application on April 22, 2026, the same day it was received. This application follows.
There has never been a single documented instance of contamination, water quality impairment, illness, or environmental harm caused by any wastewater system on this Property in more than fifty years of continuous operation — including years when the same infrastructure served several hundred people daily. The Montana Department of Environmental Quality investigated the Property in 2023–2024, found no violation, and closed its complaint on June 11, 2024. The County filed this lawsuit more than three years after its first enforcement letter and more than a year after DEQ closed its investigation.
M.R.A.P. 22(1) authorizes this Court to stay a preliminary injunction pending appeal. The four-factor standard applies: (1) likelihood of success on appeal; (2) irreparable harm to the applicant absent a stay; (3) substantial injury to other parties from a stay; and (4) the public interest. Flying T Ranch, LLC v. Catlin Ranch, LP, 2020 MT 99, ¶ 16, 400 Mont. 1, 462 P.3d 218; Driscoll v. Stapleton, 2020 MT 247, ¶ 10, 401 Mont. 405, 473 P.3d 386. Where the district court’s error is a legal conclusion, this Court reviews it de novo for correctness, and the strength of the likelihood-of-success showing is correspondingly heightened. Montanans Against Irresponsible Densification, 2024 MT 200, ¶ 12.
Both orders below contain explicit, written legal conclusions that are wrong under governing Montana law and reviewable de novo by this Court. The likelihood of reversal is demonstrated by the text of the orders themselves.
Conclusion of Law ¶ 3 of the April 8 Order correctly states: “[t]his is a conjunctive test; all four prongs must be weighed independently and must be met.” April 8 Order at 4. Conclusion of Law ¶ 4 then states: “Plaintiff is not required to prove harm before compliance with environmental regulations … are required.” Id. at 5. Conclusion of Law ¶ 7 states: “the failure to comply constitutes irreparable harm.” Id.
The April 22 denial order confirms and extends this holding: the County does not need “effluent on the ground or a contaminated well” to obtain injunctive relief. April 22 Order at 2–3. The court reasoned that requiring proof of actual harm would produce “mass noncompliance and an environmental disaster” if applied property-by-property across the County. Id.
These are categorical legal conclusions: in regulatory enforcement proceedings, the irreparable harm element is satisfied by the regulatory violation itself, without evidence. That holding directly contradicts governing Montana law. The 2023 amendment to § 27-19-201, MCA, expressly adopted the federal Winter standard. “The current test is conjunctive. That is, the applicant for an injunction bears the burden of establishing the likelihood of each element.” Montanans Against Irresponsible Densification, 2024 MT 200, ¶ 12 (emphasis in original). “Failure to establish any single element is fatal to the motion.” Id. Winter itself held that “[i]ssuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy.” Winter v. Natural Resources Defense Council, 555 U.S. 7, 22 (2008).
The district court’s “mass noncompliance and environmental disaster” rationale cannot save the per se theory. The Legislature amended § 27-19-201 knowing that environmental and regulatory enforcement actions are among the most common contexts for preliminary injunction practice. It adopted the conjunctive likelihood standard without carving out an exception for environmental cases. This Court in Montanans Against Irresponsible Densification applied the conjunctive standard to invalidate a preliminary injunction in a land use and zoning case — a regulatory context directly analogous to this one. A judicially created exception for regulatory enforcement would swallow the statute in the most frequently litigated category of cases, producing precisely the result the Legislature foreclosed in 2023.
This legal error is reviewed de novo for correctness. Planned Parenthood of Montana, 2024 MT 227, ¶ 13. The Court owes no deference to the district court’s legal conclusions. The likelihood of reversal on this ground is high and is demonstrated by the face of the two orders below.
The April 8 Order simultaneously holds that proof of harm is not required (Conclusion ¶ 4), that non-compliance constitutes irreparable harm as a matter of law (Conclusion ¶ 7), and that the County “is likely to suffer irreparable harm” (Conclusion ¶ 8). These conclusions are irreconcilable. If proof of harm is not required, there is no basis for a finding that harm was proven. If harm was proven, proof must have been required. An injunction resting on internally inconsistent legal conclusions constitutes a manifest abuse of discretion. Flying T Ranch, 2020 MT 99, ¶ 15.
The April 22 denial order’s rationale is circular in a related way. The court reasons that requiring proof of harm would enable “mass noncompliance” across the county. But that reasoning proves too much: it would eliminate the irreparable harm element in every regulatory enforcement case, converting every permit violation into a presumptive entitlement to preliminary injunctive relief without any evidence. That cannot be what the Legislature intended when it adopted the conjunctive Winter standard, and this Court has never endorsed it.
Even if the per se theory were permissible — and it is not — the evidentiary record would not support a finding of likely harm. Mr. Palacio was asked twice: first, whether anyone would be harmed absent an injunction, and second, whether such harm was likely. He answered “possibly” both times. The governing standard requires a showing that harm is likely, not possible. Montanans Against Irresponsible Densification, 2024 MT 200, ¶ 12; Winter, 555 U.S. at 22. The County’s own evidence placed its evidentiary ceiling at “possibly,” and the statute requires more.
The April 22 denial order does not address this testimony. It instead characterizes Appellants’ showing that harm was unlikely as “entirely speculative and self-serving.” April 22 Order at 3. But under the conjunctive standard, the burden of proving likely harm was on the County — not on Appellants to disprove it. The County’s own witness failed to carry that burden. Shifting the burden to Appellants to disprove harm is a further legal error.
Both orders find that Appellants failed to cooperate. The April 8 Order states Appellants “have done very little, if anything, to obtain a permit or to cooperate.” April 8 Order at 5–6. The April 22 Order characterizes any emergency as the product of Appellants’ “foot-dragging and obstructionism.” April 22 Order at 3.
These findings are not supported by the record. Appellants responded to the County’s first enforcement letter in February 2023 and offered voluntary cooperation. They installed flow meters and facilitated County-required flow testing. They provided a site plan and septic plan to the Board in May 2023. They made written cooperation proposals on multiple occasions. On January 2, 2025, they offered in writing to permit all County testing and evaluation at the County’s expense without any admission of violation. The County rejected each offer. DEQ independently investigated the same property, found no violation, and closed its complaint on June 11, 2024.
The cooperation findings are material because they underlie the merits, equities, and delay analyses in both orders. A factual finding unsupported by the evidence is reversible error under M.R.Civ.P. 52(a), and these findings are among the most consequential in the record.
The April 22 denial order addresses the jurisdictional argument by noting it was first raised in the stay application and that DEQ’s finding that the property was not subject to subdivision review somehow confirmed the County’s authority. April 22 Order at 3. Neither point is a valid response to the jurisdictional argument.
Subject matter jurisdiction cannot be waived and may be raised at any stage of the proceedings. The district court was obligated to consider it regardless of when it was raised. More fundamentally, DEQ’s determination that the Property was not subject to subdivision review under the Sanitation in Subdivisions Act has no bearing on whether the Property’s wastewater systems qualify as a “public sewage system” subject to DEQ’s exclusive authority under Title 75, Chapter 6, MCA. Those are different statutory frameworks addressing different questions.
Section 50-2-116(1)(j), MCA, limits the Board of Health’s authority to systems “not regulated by Title 75, chapter 6.” Mont. Admin. R. 17.38.101(3)(e) defines a “public sewage system” as one “that serves … 25 or more persons daily for any 60 or more days in a calendar year.” The County’s own petition alleged the shelter served sixty to eighty occupants during the summer of 2024 — well above the threshold. A system serving that population is a public sewage system within DEQ’s exclusive Title 75 jurisdiction. The Board of Health’s Compliance Orders — the instruments the injunction enforces — are therefore void for want of jurisdiction. This is a question of law reviewed de novo, and the district court’s response to it is not legally adequate.
The April 22 denial order minimizes Appellants’ harm by observing that the injunction does not shut down the entire facility and that the three other buildings and their permitted systems “are not at issue.” April 22 Order at 4. This is accurate but it does not diminish the harm — it clarifies and sharpens it.
The court’s own clarification establishes that the injunction is directed at the extra dwelling units — the RVs, campers, and trailers — “the occupants of which use the north portion resulting in waste being discharged into the ground.” Id. That is approximately twenty people. Under the court’s own framing, the entire justification for emergency displacement of twenty homeless individuals is to prevent those individuals from using a bathroom in a building that lacks a permit for its wastewater system — a system that has functioned continuously without a single documented harmful incident for over fifty years. The harm to the twenty residents from displacement is concrete, immediate, and irreversible. The harm to the County from allowing continued use of a system with a fifty-year clean record is, on this record, “possibly” likely.
The Big Sky Christian Center is, to Appellants’ knowledge and based on decades of operating in this community, the only homeless shelter in the Bitterroot Valley. The twenty individuals facing displacement include people with serious medical conditions, mental health diagnoses, and addiction recovery needs that require stable housing to manage. Many have no family or support network in the area. Many have no independent financial means to secure alternative housing. Once displaced, they will not simply be returned by a favorable appellate ruling. The harm is irreversible in the most literal sense.
The religious harm to the ministry is independently irreparable. Appellants operate the Property as the physical expression of a sincere religious calling to shelter those in need. Forced displacement of twenty residents — even temporarily, even during an appeal — directly curtails the ministry’s core religious exercise in a way that money damages cannot remedy and a later court order cannot undo. Caldwell v. Sabo, 2013 MT 240, ¶ 29, 371 Mont. 328, 308 P.3d 81.
The County cannot credibly claim substantial injury from a stay pending appeal. The wastewater systems at issue have operated for over fifty years without a single documented contamination event, water quality impairment, illness, or engineering finding of failure. DEQ investigated and found no violation. The County’s own principal witness testified that harm from continued operation is only “possibly” likely. Maintaining the status quo — the same status quo that has prevailed without incident for a half century — during the pendency of an appeal that will likely be resolved within twelve to eighteen months imposes no cognizable injury on the County.
The April 22 denial order asserts that any emergency is the product of Appellants’ own “foot-dragging.” April 22 Order at 3. But the County waited thirty-seven months from its first enforcement letter to file this action. It rejected multiple written offers by Appellants to permit comprehensive testing and evaluation. It continued its enforcement campaign after DEQ closed its companion investigation. A party whose own delay is measured in years cannot credibly claim that a stay of weeks or months pending appellate review will cause it substantial harm.
The public interest is not served by displacing twenty homeless individuals from the Bitterroot Valley’s only shelter on the basis of a legally erroneous per se theory before this Court has the opportunity to review it. The potential harm to those residents is immediate, concrete, and irreversible. The County’s asserted regulatory interest is built on a legal theory the Montana Legislature specifically foreclosed in 2023.
The public has a strong interest in the faithful application of the amended § 27-19-201, MCA. The Legislature adopted the conjunctive Winter standard in 2023 to require affirmative evidentiary showings before preliminary injunctions disrupt the status quo. This Court enforced that standard less than a year ago in Montanans Against Irresponsible Densification. The public interest in consistent application of that standard — and in preventing the district court’s categorical exception from taking irreversible effect before this Court can correct it — strongly favors a stay.
Two written orders from the District Court now explicitly hold, as a matter of law, that proof of irreparable harm is not required in regulatory enforcement actions. That holding is wrong under the 2023 amendment to § 27-19-201, MCA, wrong under this Court’s decisions in Montanans Against Irresponsible Densification and Planned Parenthood of Montana, and wrong under Winter. It is reviewed de novo. The likelihood of reversal is demonstrated by the face of the orders themselves.
Twenty people will be displaced within days if this Court does not act. Once displaced, they cannot be returned by any subsequent order. The County will suffer nothing cognizable from a brief stay of a status quo that has prevailed without incident for fifty years.
Appellants respectfully request that this Court enter an immediate order staying the Preliminary Injunction and the April 8, 2026 Order pending resolution of this appeal, and that this application be treated as an emergency requiring expedited consideration.
DATED this 1st day of May 2026.
Respectfully Submitted, RHOADES & ERICKSON PLLC
By: ___________________ Quentin M. Rhoades Attorneys for Appellant
I hereby certify that I have filed a true and accurate copy of the foregoing with the Clerk of the Montana Supreme Court; and that I have served true and accurate copies of the foregoing upon the Clerk of the District Court, and each attorney of record in the above-referenced District Court action, as follows:
Bill Fulbright, County Attorney Jennifer Hurst, Deputy Attorney Ravalli County Attorney Ravalli County Courthouse 205 Bedford Street, Suite C Hamilton, Montana 59840 rcaoservice@rc.mt.gov
Paige Trautwein Clerk of District Court Montana Twenty-First Judicial District 205 Beford Street, Suite D Hamilton, MT 59840
Quentin M. Rhoades Attorney for Appellants