Supplemental Brief — Clayvin Herrera, Petitioner v. Wyoming

No. 17-532

In the

Supreme Court of the United States

________________

CLAYVIN B. HERRERA,

v.

Petitioner,

STATE OF WYOMING,

________________

Respondent.

On Petition for Writ of Certiorari to the

District Court of Wyoming,

Sheridan County

________________

SUPPLEMENTAL BRIEF FOR PETITIONER

________________

KYLE A. GRAY

STEVEN A. SMALL

HOLLAND & HART LLP

401 N. 31st Street,

Suite 1500

Billings, MT 59101

(406) 252-2166

GEORGE W. HICKS, JR.

Counsel of Record

ANDREW C. LAWRENCE

KIRKLAND & ELLIS LLP

655 Fifteenth Street, NW

Washington, DC 20005

(202) 879-5000

george.hicks@kirkland.com

HADASSAH REIMER

HOLLAND & HART LLP

25 South Willow Street,

Suite 200

P.O. Box 68

Jackson, WY 83001

(307) 739-9741

Counsel for Petitioner

June 6, 2018

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

SUPPLEMENTAL BRIEF FOR PETITIONER ........ 1

CONCLUSION ........................................................... 5

ii

TABLE OF AUTHORITIES

Cases

Bobby v. Bies,

556 U.S. 825 (2009) .................................................. 3

Crow Tribe v. Repsis,

73 F.3d 982 (10th Cir. 1995).................................... 3

Hagen v. Utah,

510 U.S. 399 (1994) .................................................. 3

Minnesota

v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) .................................................. 3

Morton v. Mancari,

417 U.S. 535 (1974) .................................................. 1

State v. Buchanan,

978 P.2d 1070 (Wash. 1999) .................................... 4

Ward v. Race Horse,

163 U.S. 504 (1896) .................................................. 4

SUPPLEMENTAL BRIEF FOR PETITIONER

The United States correctly observes that the

decision below is incorrect, that the question

presented has generated conflicts in the lower courts,

and that this case is a suitable vehicle for resolving the

question presented. Particularly in light of the federal

government’s “special relationship” with Indian

tribes, Morton v. Mancari, 417 U.S. 535, 552 (1974),

this Court should heed the government’s wellinformed, unambiguous view that the petition should

be granted.

The state proffers three arguments in a last-ditch

effort to avoid review. None should give this Court

any pause.

First, repeating an assertion from its brief in

opposition, see Opp.11, 18, 22, 24-25, the state

contends that certiorari is unwarranted because, even

if the Crow Tribe possesses hunting rights under the

1868 Treaty, Wyoming’s hunting regulations as

applied to the Tribe are justified by “conservation

necessity.” See Supp.Br.2-6. The state argues that

this case is a poor vehicle to address the question

presented because the trial court ruled against

Petitioner on that “independent, alternative ground”

for sustaining his conviction. Id.

As Petitioner and the United States have

explained, this argument plainly lacks merit. See

Reply.12 n.5; US.Br.21. Petitioner appealed the trial

court’s misguided “conservation necessity” ruling to

the district court. That court did not reach the issue,

however, because it held that the Tribe categorically

has no treaty hunting rights. Indeed, the court

specifically stated that it was “unnecessary to address

2

the conservation necessity issue” because “the treaty

rights do not exist.” Pet.App.14 n.3. As the United

States notes, should this Court grant review and hold

that the Tribe’s hunting rights have not been

categorically abrogated, the district court can, on

remand, address whether the state can meet the

“demanding ‘conservation necessity’ standard.”

US.Br.21.1

For the first time before this Court (or any court),

the state makes the entirely new argument that

Petitioner “has abandoned his appeal” of the trial

court’s conservation-necessity ruling. Supp.Br.4. This

assertion is mystifying, and wrong. The state concedes

that Petitioner appealed that ruling to the district

court. Id. And while Petitioner did not subsequently

raise the issue on discretionary review before the

Wyoming Supreme Court or this Court, that is quite

obviously because the district court declined to

address it, ruling instead that Wyoming’s admission

to the Union and the creation of the Bighorn National

Forest categorically abrogated the Tribe’s hunting

rights. Petitioner presented those “purely legal” issues

both to the Wyoming Supreme Court and to this

Court, US.Br.21, and there is no obstacle to reviewing

them. As noted, should this Court grant review and

reverse, Petitioner’s preserved challenged to the trial

court’s flawed conservation-necessity ruling will be

squarely teed up before the district court.

1 The state deems “profoundly misleading” the government’s

observation that the Wyoming District Court “‘did not address’”

the conservation-necessity issue. Supp.Br.2. That assertion is

profoundly puzzling given that the district court expressly stated

that it was “unnecessary to address” the issue. Pet.App.14 n.3.

3

Second, the state claims that review would

“disturb expectations of finality” because a decision by

this Court in Petitioner’s favor would abrogate Crow

Tribe v. Repsis, 73 F.3d 982 (10th Cir. 1995).

Supp.Br.6-11. But this Court’s decisions frequently

abrogate even long-established lower-court precedent.

Indeed, in the very case on which the state relies,

Hagen v. Utah, 510 U.S. 399 (1994), this Court

abrogated an en banc Tenth Circuit decision

addressing reservation boundaries. Id. at 408-09, 42122. The state claims that Hagen “undermined finality

in Utah for decades,” Supp.Br.11, but that assertion is

unsupported, inconsistent with the finality that this

Court’s decisions bring to a dispute, and implausible

given that Hagen resolved a “direct conflict” between

two lower courts, 510 U.S. at 409.

Relatedly, the state once again invokes collateralestoppel principles, claiming that Petitioner and the

United States seek to “reopen” the judgment in Repsis.

Supp.Br.7, 11. But a decision by this Court that

abrogates a lower-court decision does not “reopen” the

judgment in that case. And as Petitioner and the

United States have thoroughly explained, collateral

estoppel “pose[s] no barrier to this Court’s review,”

particularly in light of the “‘change in the applicable

context’” worked by Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172 (1999). US.Br.19

(quoting Bobby v. Bies, 556 U.S. 825, 834 (2009)); see

id. at 18-21; Pet.30-33; Reply.8-11.

The state takes issue with the United States’

position that this case presents “‘purely legal’” issues.

Supp.Br.10. But the district court itself acknowledged

that the issues are “questions of law,” and it reviewed

4

them de novo. Pet.App.9. The state suggests that

“further development of the record” is necessary, but

the only examples it musters are facts that it concedes

are “not in dispute,” like whether Wyoming has

achieved statehood. Supp.Br.10. As the United States

correctly notes, while an evidentiary hearing “on other

issues” might be appropriate if this Court reverses and

remands, “no further development of the record is

necessary” for this Court to review “the legal issues

presented” in the petition. US.Br.22.

Third, in what is more of a merits argument than

a basis for denying review, the state disputes the

United States’ view that Mille Lacs repudiated the

reasoning of Ward v. Race Horse, 163 U.S. 504 (1896).

Supp.Br.12-13. The state claims that Mille Lacs did

not “overrule Race Horse.” Id. But lower courts

disagree, see, e.g., State v. Buchanan, 978 P.2d 1070,

1083 (Wash. 1999) (holding that this Court “overruled

Race Horse in … Mille Lacs”), and in all events, the

United States recommends certiorari in part “to

resolve disagreement” over “the continuing effect and

scope of Race Horse,” US.Br.15. The state has never

refuted that lower-court conflict or any of the other

lower-court conflicts this case implicates. See Pet.2427; Reply.5-7. And as the United States attests, see

US.Br.15-18, the divide among the lower courts only

confirms the need for review of this “important” case,

id. at 8.

5

CONCLUSION

The Court should grant the petition.

Respectfully submitted,

KYLE A. GRAY

GEORGE W. HICKS, JR.

STEVEN A. SMALL

Counsel of Record

HOLLAND & HART LLP ANDREW C. LAWRENCE

401 N. 31st Street,

KIRKLAND & ELLIS LLP

Suite 1500

655 Fifteenth Street, NW

Washington, DC 20005

Billings, MT 59101

(406) 252-2166

(202) 879-5000

george.hicks@kirkland.com

HADASSAH REIMER

HOLLAND & HART LLP

25 South Willow Street,

Suite 200

P.O. Box 68

Jackson, WY 83001

(307) 739-9741

Counsel for Petitioner

June 6, 2018