Amicus Curiae Brief — Clayvin Herrera, Petitioner v. Wyoming

No. 17-532

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------CLAYVIN B. HERRERA,

Petitioner,

v.

STATE OF WYOMING,

Respondent.

-----------------------------------------------------------------On Writ Of Certiorari To The

District Court Of Wyoming, Sheridan County

-----------------------------------------------------------------BRIEF OF AMICI CURIAE STATES OF

NEBRASKA, KANSAS, LOUISIANA, NORTH

DAKOTA, SOUTH DAKOTA, AND TEXAS

IN SUPPORT OF RESPONDENT

-----------------------------------------------------------------DOUGLAS J. PETERSON

Nebraska Attorney General

JAMES D. SMITH

Solicitor General

DAVID A. LOPEZ

Deputy Solicitor General

Counsel of Record

RYAN S. POST

Assistant Attorney General

CHRIS C. DI LORENZO

Assistant Attorney General

2115 State Capitol Building

Lincoln, NE 68509

Tel.: (402) 471-2682

Dave.Lopez@nebraska.gov

[Additional Counsel Listed At The End Of The Brief ]

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Whether Petitioner is precluded from relitigating

the Crow Tribe’s hunting rights within Wyoming and,

more particularly, in the Bighorn National Forest.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF CONTENTS ......................................

ii

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

iii

INTEREST OF AMICI STATES ..........................

1

SUMMARY OF THE ARGUMENT .....................

3

ARGUMENT ........................................................

4

I.

II.

III.

The Wyoming state courts properly applied the doctrine of issue preclusion as a

bar to Petitioner’s affirmative criminal defense ...........................................................

4

This Court has never recognized the broad

exception to issue preclusion urged by Petitioner .......................................................

8

The Tenth Circuit’s alternative basis for

affirmance is independently preclusive ....... 13

CONCLUSION..................................................... 19

iii

TABLE OF AUTHORITIES

Page

CASES

Agostini v. Felton, 521 U.S. 203 (1997) .........................8

Allen v. McCurry, 449 U.S. 90 (1980) ...........................5

Ass’n of Battery Recyclers v. EPA, 716 F.3d 667

(D.C. Cir. 2013) ........................................................15

Astoria Fed. Sav. & Loan Assn. v. Solimino, 501

U.S. 104 (1991) ..........................................................5

B & B Hardware, Inc. v. Hargis Indus., Inc., 135

S. Ct. 1293 (2015) .......................................... 4, 11, 16

Baldwin v. Iowa State Traveling Men’s Assn.,

283 U.S. 522 (1931) ...................................................4

Bobby v. Bies, 556 U.S. 825 (2009) ................................8

Crow Tribe of Indians v. Repsis, 73 F.3d 982

(10th Cir. 1995)................................................ passim

Deweese v. Town of Palm Beach, 688 F.2d 731

(11th Cir. 1982)........................................................15

Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d Cir.

1986) ........................................................................15

Hagen v. Utah, 510 U.S. 399 (1994) ............................10

In re Westgate-California Corp., 642 F.2d 1174

(9th Cir. 1981)..........................................................15

Jean Alexander Cosmetics, Inc. v. L’Oreal USA,

Inc., 458 F.3d 244 (3d Cir. 2006) .............................15

Magnus Elecs., Inc. v. La Republica Argentina,

830 F.2d 1396 (7th Cir. 1987) ..................................15

iv

TABLE OF AUTHORITIES – Continued

Page

Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) .............................. 6, 7, 8, 10

Montana v. United States, 440 U.S. 147

(1979) ............................................................... 5, 9, 11

Nebraska v. Parker, 136 S. Ct. 1072 (2016) .......... 10, 12

Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322

(1979) .......................................................................17

Partmar Corp. v. Paramount Pictures Theatres

Corp., 347 U.S. 89, 74 S. Ct. 414, 98 L. Ed. 532

(1954) .......................................................................17

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477 (1989)..................................8

S. Pac. Ry. v. United States, 168 U.S. 1 (1897) ............13

Shellong v. INS, 805 F.2d 655 (7th Cir. 1986) ............15

Taylor v. Sturgell, 553 U.S. 880 (2008) .........................4

United States v. Moser, 266 U.S. 236 (1924) .......... 9, 16

United States v. Title Ins. & Tr. Co., 265 U.S. 472

(1924) .......................................................................15

Woods v. Interstate Realty Co., 337 U.S. 535

(1949) .......................................................................15

STATUTES

Wyo. Stat. Ann. § 5-9-129 ...........................................11

v

TABLE OF AUTHORITIES – Continued

Page

OTHER AUTHORITIES

Restatement (Second) of Judgments §27 cmt. i.........14

Restatement (Second) of Judgments §28 cmt. c ..........9

1

INTEREST OF AMICI STATES

The Amici States, like most litigants, have an interest in the finality of judgments, and correspondingly

in the maintenance of doctrines that preclude repeated

attacks by losing parties on settled matters of law.

These interests reach their apex when the matter at

hand implicates the scope of Amici States’ sovereign

authority within their borders. This is especially true

in the realm of State-Tribal relations, where the location of a reservation boundary, the nature of a trust

land acquisition, or the meaning of a 19th century

treaty can have profound, real-world consequences as

to who has the power to tax, who has the power to regulate, and who has the power to prosecute criminal offenses.

Put simply, which sovereign has the power to govern over particular subject matter within a particular

geographic area matters greatly to government as well

as to the governed. More specifically for this case, the

finality and stability of what the federal judiciary has

said the law is regarding that power matters at least

as much. To that end, Amici States have a substantial

interest in this Court’s reaffirmation of the important

doctrine of issue preclusion and in its limitation on expansive new exceptions to the doctrine.

This case concerns the preclusive effect of the federal judiciary’s judgment on a settled issue of federal

law: whether under an 1868 treaty the Crow Tribe of

Indians retain unrestricted hunting rights in the “unoccupied lands of the United States,” notwithstanding

2

the Tenth Circuit’s conclusive 1995 holding to the contrary. It arises from Wyoming’s misdemeanor prosecution of Petitioner, a Crow Tribe member, for elk

hunting in the Bighorn National Forest in violation of

Wyoming’s game laws.

Despite the quintessentially local nature of the

underlying facts, Petitioner’s arguments in resistance

to the issue preclusion doctrine as a bar to his affirmative criminal defense would have consequences far

beyond tribal hunting rights in northern Wyoming. Petitioner invites the Court to import into the federal

common law a broad—and heretofore unrecognized—

automatic exception to issue preclusion where there

has been “a change in the applicable legal context.”

This ill-defined, manipulable standard would incentivize losing parties to continually innovate new means of

relitigating settled issues, even where, as here, the intervening “change” is dubious at best.

Amici States have an interest in this Court’s rejection of these arguments. Assuming the Court remains

assured that its grant of certiorari was appropriate,

the Court should use this case as an opportunity to reaffirm its precedents concerning the doctrine of issue

preclusion, clarify the limited nature of the exceptions

to that doctrine, and repudiate Petitioner’s expansive

and destabilizing arguments to the contrary.

------------------------------------------------------------------

3

SUMMARY OF THE ARGUMENT

Petitioner proceeds from the false premise that his

affirmative defense regarding tribal hunting rights is

not precluded by the federal courts’ decades-old judgment that those hunting rights terminated. See Crow

Tribe of Indians v. Repsis, 73 F.3d 982, 992 (10th Cir.

1995), cert. denied, 517 U.S. 1221 (1996). In resisting

issue preclusion, Petitioner argues for a dramatic expansion of a narrow exception to the doctrine where

there has been a “change in the applicable legal context.” Not only does Petitioner’s fact-bound claim not

meet the requirements for this limited exception, his

desired expansion of the exception could lead to manipulation as losing parties maneuver to identify some

precedent cited in the adverse opinion that appears to

rest on reasons rejected in some other line of “intervening” decisions by the Supreme Court. Amici States aim

to complement their sister State Wyoming’s own arguments by pointing out how Petitioner’s broad conception of this exception would undermine finality and

stability in an area of law—State-Tribal relations—

where jurisdictional certainty is of paramount importance.

Amici States will first summarize the well-established principles of issue preclusion and why the Wyoming state courts properly applied that doctrine below.

Amici States will then demonstrate how Petitioner’s

overbroad, Restatement-based conception of the

“change in the applicable legal context” exception to issue preclusion has not been recognized by this Court,

would undermine the principle of judgment finality,

4

and, as illustrated by the facts of this case, would have

destabilizing consequences on important jurisdictional

questions in the sphere of State-Tribal relations.

------------------------------------------------------------------

ARGUMENT

I.

The Wyoming state courts properly applied the doctrine of issue preclusion as a

bar to Petitioner’s affirmative criminal defense.

The doctrine of issue preclusion is designed to prevent parties who lose in one tribunal to “shop around

for another.” B & B Hardware, Inc. v. Hargis Indus.,

Inc., 135 S. Ct. 1293, 1298-99 (2015). When two different tribunals are asked to decide the same issue, the

second tribunal must usually follow the decision of the

first tribunal. Id.

Issue preclusion bars “successive litigation of an

issue of fact or law actually litigated and resolved in a

valid court determination essential to the prior judgment.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (citation omitted). The principle behind issue preclusion

is straightforward: “[o]nce a court has decided an issue,

it is ‘forever settled as between the parties.’ ” B & B

Hardware, 135 S. Ct. at 1302-03 (citing Baldwin v.

Iowa State Traveling Men’s Assn., 283 U.S. 522, 525

(1931)). Under the doctrine, once an issue is directly

determined by a court of competent jurisdiction, that

determination is conclusive and cannot be disputed in

subsequent suits between the same parties or their

5

privies. Montana v. United States, 440 U.S. 147, 153

(1979).

Issue preclusion protects parties from the expense

and vexation of multiple lawsuits, conserves judicial

resources, and fosters reliance on judicial action by

minimizing the possibility of inconsistent verdicts. B &

B Hardware, 135 S. Ct. at 1302 (citing Montana, 440

U.S. at 153-54). Indeed, the goal of minimizing inconsistent verdicts “encourage[s] reliance on adjudication.” Allen v. McCurry, 449 U.S. 90, 94 (1980).

Moreover, issue preclusion “promote[s] the comity between state and federal courts that has been recognized as a bulwark of the federal system.” Allen, 449

U.S. at 96.

Issue preclusion is “central to the purpose for

which civil courts have been established, the conclusive resolution of disputes within their jurisdictions.”

Montana, 440 U.S. at 153 (emphasis added). Simply

put, “a losing litigant deserves no rematch after a defeat fairly suffered.” Astoria Fed. Sav. & Loan Assn. v.

Solimino, 501 U.S. 104, 107 (1991).

Here, although Petitioner and his Amici are understandably eager to skip past the critical threshold

question of issue preclusion, the application of the doctrine is straightforward on a fair and complete reading

of the line of relevant decisions. As Respondent has

ably and comprehensively described, and as Amici

States will briefly summarize, the decided nature of

the termination of the Crow Tribe’s off-reservation

hunting rights is clear.

6

Twenty years after Repsis, Petitioner (and, indeed,

the Crow Tribe itself ) seeks a rematch on precisely the

legal issue his Tribe lost in 1996. Petitioner argues

that the doctrine of issue preclusion does not bar him

from relitigating off-reservation Wyoming hunting

rights because Repsis lacks preclusive effect due to a

“change in the applicable legal context.” The basis of

this argument is that Repsis relied exclusively on Race

Horse and this Court effectively overruled Race Horse

in Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999). Petitioner argues that Mille Lacs

“thoroughly repudiated” Race Horse, the case on which

Repsis relied, and that Petitioner should, therefore, be

permitted to relitigate Repsis itself. Id.

But Mille Lacs did not overrule the relevant part

of Race Horse on which Repsis relied. All parties agree

that this Court rejected the doctrine of “equal footing”

that Race Horse relied on in holding that Indian hunting rights are irreconcilable with state sovereignty.

Mille Lacs, 526 U.S. at 206. Critically, however, this

Court continued:

[t]he equal footing doctrine was only part of

the holding in Race Horse, however. We also

announced an alternative holding: The treaty

rights at issue were not intended to survive

Wyoming’s statehood.

Mille Lacs, 526 U.S. at 206. Mille Lacs did not explicitly

overrule this alternative holding in Race Horse.

Mille Lacs acknowledged that Race Horse concluded that the rights in the treaty at issue in Race

7

Horse were not intended to survive statehood. Id. This

Court then contrasted the treaty rights at issue in

Race Horse, which had a “fixed termination point,”

with the Mille Lacs treaty, which had no fixed termination and did not tie the duration of rights to the occurrence of a clearly contemplated event. Mille Lacs,

526 U.S. at 207. It further explained that the treaty at

issue in Race Horse “contemplated that the rights

would continue only so long as the hunting grounds remained unoccupied and owned by the United States”

and the “happening of these conditions was ‘clearly

contemplated’ when the Treaty was ratified.” Id. at 207

(quoting Race Horse, 163 U.S. at 509).

But the Court never explicitly overruled its second

holding in Race Horse. The Mille Lacs Court held that

courts should determine whether the rights granted in

a treaty were intended to terminate upon the happening of a clearly contemplated event, such as in Race

Horse. At worst, this Court only refused to extend the

holding in Race Horse beyond the precise treaty language present in Race Horse—the same language in

Repsis and here. The Wyoming state courts thus

properly found that Race Horse’s second holding remained good law since this Court had not overruled it,

and that it precluded Petitioner from relitigating the

ultimate holding in Repsis.

This Court has long taken the position that lower

courts are not to conclude that its recent cases have

impliedly overruled earlier precedent: “[i]f a precedent

of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of

8

decisions, the Court of Appeals should follow the case

which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v.

Felton, 521 U.S. 203, 237-38 (1997) (quoting Rodriguez

de Quijas v. Shearson/American Express, Inc., 490 U.S.

477, 485 (1989)).

The facts, circumstances, and procedural posture

of the present litigation illustrate the wisdom behind

this Court’s opinion in Agostini. Petitioner is asking

this Court to greatly expand the exception to the doctrine of issue preclusion that limits issue preclusion

due to a “change in the applicable legal context. See

Bobby v. Bies, 556 U.S. 825, 834 (2009). Petitioner is

asking the Court to hold that parties are not bound by

issue preclusion when the binding decision was based

on case precedent that may have been subsequently

questioned, but not overruled. This runs contrary to

the principle of Agostini and is flatly inconsistent with

what this Court actually held in Mille Lacs.

II.

This Court has never recognized the broad

exception to issue preclusion urged by Petitioner.

It is upon the intersection of Repsis and Mille Lacs

that Petitioner bases his primary—and farthest-reaching—argument for expanding the recognized exceptions to issue preclusion “where there has been a

change in the applicable legal context.” Pet. Br. 46-48.

Petitioner bases his argument on Bobby v. Bies, 556

U.S. 825, 834 (2009), where the Court cited a comment

9

from the Restatement (Second) of Judgments that “an

intervening change in the relevant legal climate may

warrant reexamination of the rule of law applicable as

between the parties.” Restatement (Second) of Judgments §28 cmt. c.

Bies does not appear to represent the Court’s formal adoption of the Restatement’s broad exception to

issue preclusion. This is particularly true, as Respondent has ably demonstrated, in light of the Court’s longstanding articulation of a related—but justifiably narrow—standard for when issue preclusion should be

withheld given an intervening development in the law:

Where, for example, a court in deciding a case

has enunciated a rule of law, the parties in a

subsequent action upon a different demand

are not estopped from insisting that the law is

otherwise, merely because the parties are the

same in both cases. But a fact, question or

right distinctly adjudged in the original action

cannot be disputed in a subsequent action,

even though the determination was reached

upon an erroneous view or by an erroneous

application of the law.

Montana, 440 U.S. at 162 (emphasis original) (quoting

United States v. Moser, 266 U.S. 236, 242 (1924)). This

standard defeats issue preclusion only “for ‘unmixed

questions of law’ in successive actions involving substantially unrelated claims.” Id.

The exception as set out in Montana and Moser is

superior in that it provides more concrete guidance to

courts and litigants as to the circumstances in which a

10

prior final judgment will not enjoy the benefit of issue

preclusion. Petitioner’s Restatement-based alternative, on the other hand, would trigger the exception

whenever a disappointed party can imagine a change

in the legal “context,” vague though that term may be.

Here, the consequences of such a malleable standard

are obvious, given that two of the freestanding reasons

for the Repsis court’s holding remained categorically

valid even after Mille Lacs overruled the first reason.

This should be a circumstance where issue preclusion

still unquestionably applies based on the two undisturbed reasons in the prior case.

Here, there is no “unmixed question of law.” Interpretation of the 1868 treaty is necessarily a fact-intensive endeavor, as the state court recognized in its

careful, well-reasoned decision to apply issue preclusion. Pet. App. 25. This is not surprising, since the overwhelming majority of cases determining State-Tribal

jurisdictional disputes based on 19th century treaties

will involve mixed questions of fact and law. See, e.g.,

Nebraska v. Parker, 136 S. Ct. 1072 (2016) (fact-intensive analysis in reservation diminishment context);

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

Were this Court to allow Petitioner to relitigate

Repsis, no judgment would be safe. Every final judgment would be at risk of losing its preclusive effect

between the parties and their privies the moment

the underpinning legal authority can be called into

question through mere reference to some intervening

decision that criticizes a single component of the otherwise preclusive decision. This would invite relentless

11

litigation of settled issues until the non-prevailing

party prevails, leading to abusive, vexatious and expensive litigation, waste of judicial resources, inconsistent results, and inability to rely on any

adjudication. See B & B Hardware, Inc., 135 S. Ct. at

1298-99, 1302; Montana, 440 U.S. at 153.

States and Tribes must be able to rely on past decisions and have finality between each other, particularly when such decisions directly implicate public

safety considerations by delineating which sovereign

may exercise law enforcement over a certain area, and

the scope of the same. The alternative would breed jurisdictional chaos. Not only would Amici States be subject to litigation of previously decided issues—

including, in all likelihood, on core jurisdictional issues

stemming from century-old treaties decided (and relied on) for decades—they would be concerned with forum-shopping, including for relitigation of State-Tribal

jurisdictional matters in non-federal forums illequipped to resolve such issues.

To be clear, Amici States do not accuse Petitioner

of forum-shopping. But without jurisdictional certainty, individual parties could forum shop to relitigate

such issues in forums that are ill-suited to that work.

For example, Wyoming Circuit Courts, with original jurisdiction in all misdemeanor cases, Wyo. Stat. Ann.

§ 5-9-129. Like their counterparts in many other

States, they are courts of limited jurisdiction with simplified rules to provide limited, focused discovery and

expedited trial dates. Relitigating significant issues

12

regarding treaty-based State-Tribal jurisdictional

boundaries during misdemeanor criminal prosecutions

in such courts would tax judicial resources and increase the possibility of inconsistent decisions.

Moreover, and without at all casting doubt on the

capacity of lower State courts, such courts are simply

not the appropriate venues for the resolution of such

significant and inherently federal issues. A strong issue preclusion doctrine serves as a safeguard against

the relitigation of federal treaty questions in misdemeanor-level State courts, at least where, as here, the

federal courts have already spoken. That is desirable

from a policy perspective. Jurisdictional clarity and

consistency would be ill-served if, for example, the issues decided by this Court several terms ago in Parker,

136 S. Ct. 1072, were continually relitigated in misdemeanor prosecutions in Nebraska county courts.

The need for jurisdictional certainty is particularly true in the context of State-Tribal criminal

jurisdiction. For example, this term, in Carpenter v.

Murphy, No. 17-1107 (U.S.), this Court will resolve

a jurisdictional boundary dispute covering all of eastern Oklahoma and 1.8 million residents. However

the dispute is resolved, it should be expected that both

the State of Oklahoma and the Creek Nation respect

the finality of the decision. It should also be expected

that future clarification of issues addressed in Carpenter v. Murphy not be used as a “change in the

applicable legal context” to undermine the finality of

whatever decision is reached. Once a jurisdictional

boundary is determined, that determination should

13

be final. Yet Petitioner’s position would invite every

criminal defendant in a successive prosecution to

relitigate in state court the federal court’s determination of the underlying jurisdictional boundaries. Pet.

Br. 57. Such vexatious relitigation of settled jurisdictional issues would place no value on finality. Each

successive prosecution should not spawn a renewed opportunity to undo the jurisdictional boundaries settled

by the last.

The general rule of issue preclusion “is demanded

by the very object for which civil courts have been established.” S. Pac. Ry. v. United States, 168 U.S. 1, 49

(1897). The doctrine of issue preclusion protects the judicial system’s vital interest in the finality of judgments. Allowing Petitioner to expand the recognized

exceptions to the issue preclusion doctrine in order to

relitigate Repsis would undermine this vital interest.

III. The Tenth Circuit’s alternative basis for

affirmance is independently preclusive.

Repsis provided an additional “alternative basis

for affirmance of the district court’s dismissal of the

Tribe’s action” that was not based on Race Horse. Repsis, 73 F.3d at 993. Repsis held that, at the time the

1868 treaty was executed, the land that is now the Bighorn National Forest was unoccupied and open for settlement. Id. However, 11 years later when Congress

created the Bighorn National Forest, it expressly mandated that national forest lands were to be regulated

for environmental purposes and “were no longer available for settlement.” Id. Specifically, people could no

14

longer “timber, mine, log, graze cattle, or homestead”

on national forest land without federal permission. Id.

Accordingly, the Tenth Circuit held that the Crow

Tribe had no right to hunt in the Bighorn National Forest because those lands are “occupied,”1 since the

treaty only reserved off-reservation tribal hunting

rights to “unoccupied” lands. Id.; see also Pet. App. 45

(1868 treaty text).

Petitioner contends that the Tenth Circuit’s holding that the Bighorn National Forest land is “occupied”

should not be given preclusive effect. Pet. Br. 50. His

primary argument on this point, and the one Amici

States will address, again urges the adoption of an issue preclusion exception drawn from a comment to the

Restatement (Second) of Judgments that this Court

has never recognized. Specifically, he argues that if a

“judgment by a court of first instance” relies on “determinations of two issues” that independently support

the result, then the judgment is not preclusive on either issue. Pet. Br. 50 (citing Restatement (Second) of

Judgments § 27 cmt. i.).

This position is contrary to this Court’s precedent.

This Court has held “where there are two grounds,

upon either of which an appellate court may rest its

decision, and it adopts both, the ruling on neither is

obiter, but each is the judgment of the court and of

1

The Wyoming state courts in Petitioner’s case recognized

that the “Repsis court also alternatively held that the treaty

rights were no longer valid, because the creation of the Big Horn

National Forest resulted in the occupation of the land.” Pet. App.

22, 33 (internal quotation omitted).

15

equal validity with the other.” United States v. Title Ins.

& Tr. Co., 265 U.S. 472, 486 (1924); see also Woods v.

Interstate Realty Co., 337 U.S. 535, 537 (1949) (“where

a decision rests on two or more grounds, none can be

relegated to the category of obiter dictum”).

Notably, not only has this Court not embraced this

exception, it has been rejected by at least six circuits.

The Second, Third, Seventh, Ninth, Eleventh, and D.C.

Circuits have generally followed the traditional view

that independently sufficient alternative findings that

have been litigated and decided should be given preclusive effect. See Ass’n of Battery Recyclers v. EPA, 716

F.3d 667, 673 (D.C. Cir. 2013); Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 255 (3d Cir.

2006); Magnus Elecs., Inc. v. La Republica Argentina,

830 F.2d 1396, 1402 (7th Cir. 1987); Shellong v. INS,

805 F.2d 655, 658-59 (7th Cir. 1986); Gelb v. Royal

Globe Ins. Co., 798 F.2d 38, 45 (2d Cir. 1986), cert. denied, 480 U.S. 948 (1987); Deweese v. Town of Palm

Beach, 688 F.2d 731, 734 (11th Cir. 1982); In re Westgate-California Corp., 642 F.2d 1174, 1176-77 (9th Cir.

1981). In so doing, these courts relied on the general

principles of issue preclusion, including finality and

promoting judicial economy: “[a]pplying issue preclusion to independently sufficient alternative findings

furthers the basic objectives of the doctrine.” See, e.g.,

L’Oreal USA, 458 F.3d at 254.

In support of applying the Restatement (Second)

of Judgments comment as a new exception, Petitioner

contends that a court’s determination of an alternative

basis may not have been as carefully or rigorously

16

considered. Pet. Br. at 50. This argument gives woeful

short shrift to the Tenth Circuit’s analysis, which consisted of an entire substantive section of its opinion.

Repsis, 73 F.3d at 993. Hardly the “passing” conclusion

described by Petitioner. Pet. Br. 51. Litigants should

not assume that courts would give any less consideration to an independently sufficient basis to support its

judgment. L’Oreal USA, 458 F.3d at 254. Courts are

reasonably expected to craft findings that are the product of careful judicial reasoning, and the Tenth Circuit

did so in Repsis. Id.

Next, Petitioner contends that the Tenth Circuit’s

alternative basis is legally and factually wrong and inconsistent with other court decisions. Pet’r Br. at 51.

But even if the Tenth Circuit did err, this would not

prevent issue preclusion. Issue preclusion bars litigation of wrong decisions to the same degree as correct

ones. B & B Hardware, Inc., 135 S.Ct. at 1308-09; see

also United States v. Moser, 266 U.S. 236, 242 (1924)

(“[A] fact, question or right distinctly adjudged in the

original action cannot be disputed in a subsequent action, even though the determination was reached upon

an erroneous view or by an erroneous application of

law.”).

The Tenth Circuit in Repsis resolved the same issue sought to be relitigated here—i.e., that the 1868

treaty hunting rights were no longer valid due to the

creation of the Bighorn National Forest resulting in

“occupation” of the land. This resolution was essential

to the decision as an independently sufficient alternative basis that the treaty rights were no longer valid.

17

Title Ins. & Tr. Co., 265 U.S. at 486; L’Oreal USA, 458

F.3d at 255. To permit relitigation of alternative findings would “eviscerate a great number of judicial determinations that were the products of costly litigation

and careful deliberation.” L’Oreal USA, 458 F.3d at

255. Further establishing that the Tenth Circuit’s alternative holding was essential to the judgment, is that it

was capable of being appealed and that the Crow Tribe

actually petitioned for certiorari on this issue. See Pet.

Br. at 7, 22, 24, Supreme Court of the United States

docket no. 95-1560; see Partmar Corp. v. Paramount

Pictures Theatres Corp., 347 U.S. 89, 100, 74 S. Ct. 414,

420, 98 L. Ed. 532 (1954) (“It is only when a finding of

law or fact is not necessary for a decree that the prevailing party may not appeal and the finding does not

form the basis for collateral estoppel.”).

Petitioner, as a member of the Crow Tribe, should

not be permitted to litigate, for the second time, the

precise issue litigated by the State of Wyoming and

Crow Tribe and resolved by the Tenth Circuit in Wyoming’s favor. This Court should hold that Petitioner is

precluded from relitigating whether the creation of the

Bighorn National Forest rendered the land “occupied,”

thereby terminating the Crow Tribe’s treaty rights to

hunt those lands in violation of Wyoming’s game laws.

States must be able to rely on past decisions and the

propriety of issue preclusion to protect against the

burden of needless and vexatious relitigation of settled

jurisdictional issues. See Parklane Hosiery Co., Inc. v.

Shore, 439 U.S. 322, 326 (1979).

18

“Denying preclusive effect to a finding that would

support a court’s judgment merely because the case

was disposed of on other grounds as well would result

in the inefficient use of private and public litigation resources.” L’Oreal USA, 458 F.3d at 253. Litigants, particularly States that are often litigants to cases

involving the clash of sovereign and jurisdictional interests, should not be denied preclusive effect of past

decisions simply because the ultimate holding was

based on multiple freestanding reasons. To hold otherwise would force defendants to gamble on only one legal theory in defense or only be entitled to issue

preclusion on simple cases. See L’Oreal USA, 458 F.3d

at 255 (“under the approach of the Second Restatement, the judicial findings in nearly any complex case

would be unlikely to preclude subsequent relitigation

of the same issues”).

------------------------------------------------------------------

19

CONCLUSION

The judgment of the District Court of Wyoming

should be affirmed.

Respectfully submitted,

DOUGLAS J. PETERSON

Nebraska Attorney General

JAMES D. SMITH

Solicitor General

DAVID A. LOPEZ

Deputy Solicitor General

Counsel of Record

RYAN S. POST

Assistant Attorney General

CHRIS C. DI LORENZO

Assistant Attorney General

2115 State Capitol Building

Lincoln, NE 68509

Tel.: (402) 471-2682

Dave.Lopez@nebraska.gov

Dated: NOVEMBER 20, 2018

20

ADDITIONAL COUNSEL

DEREK SCHMIDT

Attorney General

State of Kansas

JEFF LANDRY

Attorney General

State of Louisiana

WAYNE STENEHJEM

Attorney General

State of North Dakota

MARTY J. JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas