ORDER DENYING PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER

DANIEL L. HOVLAND, District Judge.

Before the Court is the Plaintiffs' "Emergency Motion for Temporary Restraining Order and Preliminary Injunction," filed on June 8, 2012. See Docket No. 3. For the reasons explained below, the motion is denied.

I. BACKGROUND

On December 21, 2011, the Tribal Council of the Turtle Mountain Band of Chippewa Indians ("Tribe") issued Resolution Number TMBC586-11-11 (Revised) which states, in pertinent part:

See Docket No. 1-3, p. 14.

On February 22, 2012, the Turtle Mountain Band of Chippewa Indians ("Tribe") entered into a Gaming Equipment Participation Agreement and Loan Agreement with plaintiff AGAMENV for the purpose of constructing and operating a new casino, the Painted Pony Casino. See Docket Nos. 1-3 and 1-5.

On April 30, 2012, Lorraine Laverdure, Gaming Investigator for the Tribe, sent a letter to plaintiff Ray Brown, one of the primary members of AGAMENV, stating, "This notice is to inform you that the Tribal Gaming Office has not received your application to Distribute Gaming Equipment and Supplies. Therefore, you will not be allowed to continue business with the Painted Pony Casino in Trenton, North Dakota." See Docket No. 1-8.

On May 2, 2012, the four Tribal Council members that had voted against the December 21, 2011 resolution filed a "Complaint and Petition For a Preliminary Injunction" in Turtle Mountain Tribal Court in Belcourt, North Dakota. See Docket No. 1-9. The plaintiffs in the Tribal Court action allege, in part:

See Docket No. 1-9 (errors and emphasis in original). The plaintiffs requested the following:

See Docket No. 1-9 (errors in original).

On May 10, 2012, Tribal Court Associate Judge Andrew Laverdure issued an "Ex Parte Temporary Restraining Order and Preliminary Injunction and Order for Show Cause Hearing." See Docket No. 1-10. Judge Laverdure ordered as follows:

See Docket No. 1-10.

On May 12, 2012, the Turtle Mountain Tribal Council met and adopted a resolution which states, in part:

See Docket No. 1-11. The attorney for the Turtle Mountain Tribal Council subsequently filed a "Motion to Withdraw Complaint and Petition for Preliminary Injunction and to Vacate TRO and Preliminary Injunction." See Docket No. 1-11.1

On June 7, 2012, Judge Laverdure issued an "Order for Closure of the Painted Pony," which states:

As grounds for the Motion, petitioners presented the following:

See Docket No. 1-12. Judge Laverdure scheduled a second show cause hearing for June 15, 2012.

On June 8, 2012, nearly a month after the Tribal Court had issued a temporary restraining order, AGAMENV, Ray Brown, and Steven Haynes filed a complaint and "Emergency Motion for Temporary Restraining Order and Preliminary Injunction" in federal district court. See Docket Nos. 1 and 3. The Plaintiffs allege the Tribal Council members are acting without the authority of the council. Therefore, the Tribal Court has no jurisdiction and Judge Laverdure's orders are invalid. The plaintiffs request an order enjoining:

See Docket No. 3.

The Court is unaware of what transpired at the show cause hearing that was to be held on June 8, 2012, in Tribal Court.

II. LEGAL DISCUSSION

In determining whether a temporary restraining order should be granted, Rule 65(b) of the Federal Rules of Civil Procedure directs the court to look to the specific facts shown by an affidavit to determine whether immediate and irreparable injury, loss, or damage will result to the applicant.2 In determining whether preliminary injunctive relief should be granted, the court is required to consider the factors set forth in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir.1981). Whether a preliminary injunction or temporary restraining order should be granted involves consideration of "(1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." Id.

It is well-established that the burden of establishing the necessity of a temporary restraining order or a preliminary injunction is on the movant. Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir.1994); Modern Computer Sys., Inc. v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir.1989). "No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction." Baker Elec. Coop., Inc., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir.1987)).

A. IRREPARABLE HARM

The plaintiff must establish there is a threat of irreparable harm if injunctive relief is not granted and that such harm is not compensable by money damages. Doe v. LaDue, 514 F.Supp.2d 1131, 1135 (D.Minn.2007) (citing Northland Ins. Co. v. Blaylock, 115 F.Supp.2d 1108, 1116 (D.Minn.2000)). "The `mere possibility' that harm may occur before a trial on the merits is not enough." Johnson v. Bd. of Police Comm'rs, 351 F.Supp.2d 929, 945 (E.D.Mo.2004). The party that seeks the temporary restraining order must show a significant risk of harm exists. Doe, 514 F.Supp.2d at 1135 (citing Johnson, 351 F.Supp.2d at 945). The absence of such a showing is sufficient grounds to deny injunctive relief. Id. (citing Gelco v. Coniston Partners, 811 F.2d 414, 420 (8th Cir. 1987)).

The Plaintiffs allege they will suffer irreparable harm without injunctive relief because the "very existence" of their business is at stake. See Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir. 1986) ("Recoverable monetary loss may constitute irreparable harm only where the loss threatens the very existence of the [petitioner]'s business"). The Plaintiffs have not established that the very existence of their business is at stake. They allege that they would have to expend time and resources litigating in a tribal court they believe has no jurisdiction, but they have not shown that this poses a risk to their business's existence. Any loss resulting from the closing of the casino is potentially compensable by money damages. This Dataphase factor weighs against granting a temporary restraining order.

B. BALANCE OF HARM

The Plaintiffs allege a temporary restraining order would merely restore the status quo, and therefore the balance of harm weighs in their favor. In the "Ex Parte Temporary Restraining Order and Preliminary Injunction and Order for Show Cause Hearing," Judge Laverdure found:

See Docket No. 1-10. The Court cannot determine, from the scant record before it, the penalties that would be suffered by the plaintiffs and/or the tribe and its members as a result of the temporary closure of the Painted Pony Casino. This factor weighs neither in favor of nor against granting a temporary restraining order.

C. PROBABILITY OF SUCCESS ON THE MERITS

When evaluating a movant's "likelihood of success on the merits" the court should "flexibly weigh the case's particular circumstances to determine `whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined.'" Calvin Klein Cosmetics Corp., 815 F.2d at 503 (quoting Dataphase, 640 F.2d at 113). At this preliminary stage, the Court does not decide whether the party seeking the temporary restraining order will ultimately prevail. PCTV Gold, Inc. v. SpeedNet, LLC, 508 F.3d 1137, 1143 (8th Cir.2007). Although a temporary restraining order cannot be issued if the movant has no chance on the merits, "the Eighth Circuit has rejected a requirement as to a `party seeking preliminary relief prove a greater than fifty per cent likelihood that he will prevail on the merits.'" Id. (quoting Dataphase, 640 F.2d at 113). The Eighth Circuit has held that of the four factors to be considered by the district court in considering preliminary injunctive relief, the likelihood of success on the merits is "most significant." S & M Constructors, Inc. v. Foley Co., 959 F.2d 97, 98 (8th Cir.1992).

The Plaintiffs argue the tribal court does not have jurisdiction and exhaustion of tribal remedies is not required. It is well-established that principles of comity require that tribal court remedies must be exhausted before a federal district court should consider relief in a civil case regarding tribal-related activities on reservation land. Krempel v. Prairie Island Indian Community, 125 F.3d 621, 622 (8th Cir.1997) (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987); Nat'l Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); Bruce H. Lien Co. v. Three Affiliated Tribes, 93 F.3d 1412 (8th Cir.1996)).

Exhaustion of tribal remedies means that tribal appellate courts must first have the opportunity to review the determinations of the lower tribal courts. LaPlante, 480 U.S. 9, 17, 107 S.Ct. 971. In short, "[t]he tribal exhaustion doctrine is based on `a policy of supporting self-government and self-determination,'" and although the rule is prudential rather than jurisdictional, "[e]xhaustion is mandatory... when a case fits within the policy." Gaming World Int'l, Ltd. v. White Earth Band of Chippewa, 317 F.3d 840, 849 (8th Cir.2003) (citing LaPlante, 480 U.S. 9, 20 n. 14, 107 S.Ct. 971; Nat'l Farmers Union, 471 U.S. 845, 856, 105 S.Ct. 2447; Duncan Energy Co. v. Three Affiliated Tribes, 27 F.3d 1294, 1300 (8th Cir.1994); Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir.1991)).

Although the criminal jurisdiction of tribal courts is subject to substantial federal limitation, see Oliphant v. Suquamish Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), their civil jurisdiction is not so restricted. Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 15, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987) (citing National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 854-55, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). However, as a general rule, "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." Strate v. A-1 Contractors, 520 U.S. 438, 445, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) (citing Oliphant, 435 U.S. 191, 98 S.Ct. 1011; Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981)). As the United States Supreme Court explained, "`the inherent sovereign powers of an Indian tribe' — those powers a tribe enjoys apart from express provision by treaty or statute — `do not extend to the activities of nonmembers of the tribe.'" Id. at 445-46, 117 S.Ct. 1404 (quoting Montana, 450 U.S. 544, 565, 101 S.Ct. 1245)). Notwithstanding,

Montana, 450 U.S. 544, 565-66, 101 S.Ct. 1245 (citations omitted).

Strate v. A-1 Contractors, 520 U.S. 438, 446, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997).

This dispute implicates both of the Montana exceptions. The Plaintiffs have chosen to enter into agreements with the Turtle Mountain Tribal Council to construct and operate a casino on reservation land. This dispute arises out of the formation of those contracts. Therefore, the dispute involves consensual relationships with the tribe or its members. The dispute also involves the internal operations of the tribal government, including the Turtle Mountain Tribal Council and the Turtle Mountain Tribal Court. This directly involves the tribe's political integrity. Questions regarding the Plaintiffs and the Tribal Council's compliance with the tribal constitution and tribal gaming code are best decided initially in tribal court and, if necessary, the tribal appellate court. The Court will not, at this early stage, inject itself into a tribal dispute involving the application of tribal law. Based on the scant record before the Court, the Plaintiffs have not established a likelihood of success on the merits. This Dataphase factor does not weigh in favor of granting a temporary restraining order.

D. PUBLIC INTEREST

The operation of the Painted Pony Casino and the employment and revenue it may generate are matters in the public interest. Compliance with the tribal constitution and tribal gaming code are also in the public interest. The Court is unable to reasonably determine the potential costs and benefits involved with the temporary closure of the Painted Pony Casino. This factor weighs neither in favor of nor against the issuance of a temporary restraining order.

III. CONCLUSION

After carefully reviewing the entire record and the Dataphase factors, the Court finds that the Plaintiffs have not met their burden of establishing the necessity of a temporary restraining order at this early stage of the litigation. The Court notes that the Turtle Mountain Tribal Court issued a temporary restraining order on May 10, 2012, ordering the Plaintiffs to halt their involvement with the casino until after a hearing was conducted on June 8, 2012. The Plaintiffs did not find it necessary to request relief from the federal court until the same day of the show cause hearing on June 8, 2012. In other words, the dispute among the Tribal Council members, the Turtle Mountain Tribal Court, and the Plaintiffs has lingered for nearly one month. This Court will not enter into this tribal dispute on such short notice. The Court DENIES the Plaintiff's motion for a temporary restraining order (Docket No. 3).