# Supplemental Brief — Herrera v. Wyoming, 138 S. Ct. 720 (2018) (No. 17-532)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Supplemental Brief
- **Published:** January 1, 2018

## Text

No. 17-532

3n the
Supreme Court of the Anited States

CLAYVIN B. HERRERA,
Petitioner,
V.
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 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
Billings, MT 59101 Washington, DC 20005
(406) 252-2166 (202) 879-5000
HADASSAH REIMER george. hicks@kirkland.com
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

Tee Tee Tee

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

CONCLUSION .............222200+0

‘3

TABLE OF AUTHORITIES
Cases

Bobby v. Bies,

I III. coccnsnscneseececcesesosecscocesccoveceesoeses 3
Crow Tribe v. Repsis,

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

Hagen v. Utah,
TN 3
Minnesota
v. Mille Lacs Band of Chippewa Indians,
I WN cecncnccccccsccscessccccssensccsccoccccccccoccees 3

Morton v. Mancari,
STITT ncn senancesqunsnenenceunperesvscsaascescenecees 1

State v. Buchanan,
978 P.2d 1070 (Wash. 1999) ...............cccccccccscceeeeees 4

Ward v. Race Horse,
I TI ccc nnancetsennsncsennsctnnnseccoqnessesusesoeses 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 well-
informed, 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. /d.

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.'

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
ea Ee

. Id. And while Petitioner did not subsequently
raise in an 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.

' 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
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. /d. at 408-09, 421-
22. 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 collateral-
estoppel 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.24-
27; 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
Billings, MT 59101 Washington, DC 20005
(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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A14. Public record. Not legal advice.