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

Petitioner,

STATE OF WYOMING,

Respondent.

»

A

On Petition For A Writ Of Certiorari

To The District Court Of Wyoming,

Sheridan County

°

SUPPLEMENTAL BRIEF FOR RESPONDENT

,*

aA

PETER K. MICHAEL*

Attorney General

JOHN G. KNEPPER

Chief Deputy Attorney Genera!

Jay J

Special Assistant Attorney Genera!

JAMES KASTE

Deputy Attorney Genera!

D. DAvID DEWALD

Senior Assistant Attorney General

*Counsel of Record

OFFICE OF THE WYOMING

Cheyenne,

(307) 777-7841

peter.michael@wyo.gov

Counsel for Respondent

COCKLE LEGAL BRIEFS (800) 225-6964

www COM

TABLE OF CONTENTS

Page

TIT sci cence ciosianeltaidantiadibemsinamananeneebnins 1

ITE ibinsecenneisnntedianesinsaienieniinidiatabeiiabibanan 2

I. This case presents a poor vehicle to answer

Il.

Il.

the questions presented by the United

States because the Petitioner has defaulted

on an independent, alternative ground

sufficient to sustain his conviction..............

This Court’s review of the questions

presented by the United States will disturb

expectations of finality that benefit both

Indian Tribes and the States .....................

Should this Court grant review, this case

presents deeper legal issues than the

limited application of Mille Lacs urged by

IID cinrnddresccetnccabestecnssnpstinnicees

EE Rniiciotcidedcitenctcesiisioniicathinishenmmidiinibmensenesi

ss

TABLE OF AUTHORITIES

Page

CASES

Agostini v. Felton, 521 U.S. 203 (1997)...............0.0000- 12

Amalgamated Food Emps. Union v. Logan

Valley Plaza, 391 U.S. 308 (1968) ..0..0.....0....ccccccceeees 4

Arizona v. California, 460 U.S. 605 (1983)................... 5

Crow Tribe of Indians v. Repsis, 866 F. Supp. 520

ee sic hairesinineseibieitgiiaieina hlintchimctachtaasinintginn 1,8

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

1995), cert. denied, 517 U.S. 1221 (1996) ....8, 9, 10, 11

Dep’t of Game v. Puyallup Tribe, 414 U.S. 44

epee hdiepiiniedniseniesbilacuiactialehiathliaiabinicstabbiresiidnariendactiimsitiindonesiins 2

Hagen v. Utah, 510 U.S. 399 (1994)... oo... ceeeceeeeeeeee 7

Lieberman v. Mossbrook, 208 P.3d 1296 (Wyo.

Saat ictistasaliedstnbseistettstessitis ipeidlaientetiaattesddchecmennelannsabees 5

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999)................... 1,11, 12,13

Moss v. Ramey, 239 U.S. 538 (1916) ..........0..00.ccccccceeeees 6

Pepper v. United States, 562 U.S. 476 (2011) ............... 5

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392

ee hiciantiacacnsecvisnnsnatiindincanticinntinetiintnsiieupianatieatiaienaniinviiccens 2

Ultra Res., Inc. vu. McMurry Energy Co., 99 P.3d

I cciceciinierseneiicceipnsiaetenciiechadisbibibiatasdimisatibes 4

Ute Indian Tribe of the Uintah & Ouray

Reservation v. Myton, 835 F.3d 1255 (10th Cir.

Set tsasaihbitadacisestlnniaeasebinenicdagins sicletancebindacieidiaciicnnmida tatibiie 7

TABLE OF AUTHORITIES — Continued

Page

Ute Indian Tribe of the Uintah & Ouray

Reservation v. Utah, 790 F.3d 1000 (10th Cir.

| MIR a aE Ri anns i be a 6, 11

Ward v. Race Horse, 163 U.S. 504 (1896)...... 1, 2, 12,13

Washington v. Wash. State Comm. Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979)............... 11

STATUTES

Nn OI ,acarnenisipomepenbeieiionans 3

I I ona ctrcsatniennentninieinntendonnassnantio 3

OTHER AUTHORITIES

Cohen’s Handbook of Federal Indian Law (Nell

Jessup Newton ed. 2012) .2..............cccccceeeceeeeeeee 10, 12

Memorandum of the United States as Amicus

Curiae Supporting Petitioner's Motion for

Injunctive Relief, Ute Indian Tribe of the

Uintah & Ouray Reservation v. Utah, 1992

US. Dist. Ct. Motions LEXIS 18 (D. Utah

1

INTRODUCTION

The United States urges this Court to grant certi-

orari to review two questions it describes as purely

legal. (U.S. Br. at 21). The views of the United States

notwithstanding, this Court should deny the Petition.

First, the procedural history of this case prevents

a decision on the two questions presented by the

United States from affecting Clayvin Herrera’s

criminal conviction.

Second, if this Court accepts and reviews the ques-

tions presented by the United States, the grant of

review itself will disrupt the final judgment issued by

a federal district court, and affirmed by the Tenth

Circuit, in Crow Tribe of Indians v. Repsis, 866 F. Supp.

520 (D. Wyo. 1994), aff'd 73 F.3d 982 (10th Cir. 1995).

In so doing, this Court will undermine settled

expectations of finality in a manner that is particularly

pernicious in Indian law.

Finally, the questions presented by the United

States assume that this Court’s decision in Minnesota

v. Mille Lacs Band of Chippewa |526 U.S. 172 (1999)]

overruled its earlier decision in Ward v. Race Horse

[163 U.S. 504 (1896)], but this was not the outcome

urged by the United States or adopted by the Mille

Lacs majority. In Mille Lacs, the United States

argued that the two cases could be reconciled, and this

Court agreed. The meaning of Mille Lacs advocated

now by the United States does not reflect a “change in

controlling law” but rather a change in the United

States’ arguments to this Court. If the United States

2

wants this Court to overrule Ward v. Race Horse, it

should seek a case that does not present the collateral

consequences that Court review would engender here.

@

4

ARGUMENT

I. This case presents a poor vehicle to answer

the questions presented by the United

States because the Petitioner has defaulted

on an independent, alternative ground

sufficient to sustain his conviction.

Even were this Court to conclude that the Crow

Tribe’s treaty hunting right persists, the State of

Wyoming can regulate off-reservation treaty rights “in

the interest of conservation, provided the regulation

meets appropriate standards and does not discrimi-

nate against the Indians.” Dep’t of Game v. Puyallup

Tribe, 414 U.S. 44, 45 (1973) (quoting Puyallup Tribe v.

Dep't of Game, 391 U.S. 392, 395, 398 (1968)). State

conservation regulations must be “reasonable and

necessary.” Id.

The United States argues that this Court need not

consider “whether enforcement of Wyoming’s hunting

laws against petitioner is ‘reasonable and necessary

for conservation.’” (U.S. Br. at 21). The United States

asserts that “|t]}he Wyoming district court did not

address that issue.” Jd.

This statement is profoundly misleading. In this

case, the trial court is the Wyoming “Circuit Court”

for the Fourth Judicial District which has “original

3

jurisdiction in all misdemeanor criminal cases.” Wyo.

Stat. Ann. § 5-9-129. For misdemeanor convictions, the

“Wyoming district court” mentioned by the United

States acts only to “review the case on the record on

appeal.” Wyo. Stat. Ann. § 5-9-141.

When the Wyoming circuit court denied the Peti-

tioner’s motion to dismiss the charges against him, the

judge rejected his argument that the State’s regula-

tions are not reasonable and necessary conservation

measures. (See Pet’r’s App. at 39-41). The court held

that “[iJt is unreasonable for the defendant to believe

or to even argue that he and other members of the

Crow Tribe may hunt any game within the [Big Horn

National Forest] without restriction.” (/d. at 40). It

noted that “even the Crow Tribe does not allow such

unrestricted hunting in that part of the Big Horn

Mountains which are within the Crow Reservation.”

(Id.). “If not for the continuing conservation efforts

there would be no game to hunt.” (/d.). The court found

that the Crow Tribe has acknowledged the need for off-

reservation hunting regulation, but it found “no

evidence” that the Tribe provided such regulation

itself. (Id. at 40 & n.4).

Conservation is a necessity and the

defendant, whether a Crow Tribal member or

not, is subject to regulation. A hunter is regu-

lated by the Crow Tribe Law and Order Code

when hunting in the Big Horn Mountains on

the Crow Reservation in Montana. He is

likewise subject to Wyoming Game and Fish

regulations when hunting in the Big Horn

4

Mountains located within the [Big Horn

National Forest] in Wyoming.

(Ud. at 42-43).

Over the course of this litigation, the Petitioner

has abandoned his appeal of this ruling. While he did

challenge the conservation necessity of the Wyoming

regulations in the Wyoming district court on appeal

(see Sept. 13, 2016 Br. of Appellant at 17, 20-21),

this is as far as the issue went. The Wyoming district

court affirmed on other grounds. On appeal to the

Wyoming Supreme Court, the Petitioner presented

five questions in his petition for review, and not one of

those issues mentions the circuit court’s holding on

conservation necessity. (See Petition for Writ of Review,

Herrera v. State, (No. S-17-0129), at 7-8 (May 10,

2017)).

In Wyoming, “it is the responsibility of the appel-

lant to specify clearly defined issues for [the Wyoming

Supreme] Court’s review.” Ultra Res., Inc. v. McMurry

Energy Co. , 99 P.3d 959, 962 (Wyo. 2004). “Assignments

of errors control the scope of an appeal.” Jd.; see also

Amalgamated Food Emps. Union v. Logan Valley

Plaza, 391 U.S. 308, 313 n.6 (1968).

The Petitioner also did not raise the ruling on

conservation necessity to this Court. His failure to

challenge the trial court’s decision that “conservation

necessity” justifies Wyoming’ hunting regulations

makes that holding the law of the case and makes a

decision by this Court advisory.

5

A “fundamental precept of common-law adjudica-

tion” is “that an iesue once determined by a competent

court is conclusive.” Arizona v. California, 460 U.S. 605,

619 (1983). “[Wihen a court decides upon a rule of law,

that decision should continue to govern the same

issues in subsequent stages in the same case.” Pepper

v. United States, 562 U.S. 476, 506 (2011).

Even if the Petitioner were to prevail on the

carefully worded questions presented to this Court by

the United States, his conviction will stand unless the

Wyoming circuit court disregards its prior ruling

and grants Herrera a second opportunity to litigate

the conservation necessity of Wyoming’s hunting

regulations.

Admittedly, the law of the case doctrine “directs a

court’s discretion” rather than imposing a mandatory

“limit [on] the tribunal’s power.” Id. A Wyoming court

could grant an exception to the law of the case if new

evidence is available or the issue was not actually

decided, but, in Wyoming, “lo|rdinarily, the law of the

case doctrine requires a trial court to adhere to its

own prior rulings, the rulings of an appellate court, or

another judge’s rulings in the case or a closely related

case.” Lieberman v. Mossbrook, 208 P.3d 1296, 1305

(Wyo. 2009).

Herrera’s decision to abandon his appeal of the

Wyoming circuit court’s ruling on conservation

necessity means that he has placed himself squarely

into the routine application of this common procedural

rule. The recognized exceptions do not apply, and the

6

federal nature of his claim does not affect the rule’s

application. This Court recognizes that a procedural

default of this nature “is a question of local law, upon

which the decision of the highest court of the State is

controlling.” Moss v. Ramey, 239 U.S. 538, 547 (1916).

Any decision by this Court on the underlying treaty

right, therefore, would be advisory.

Il. This Court’s review of the questions

presented by the United States will disturb

expectations of finality that benefit both

Indian Tribes and the States.

States and the Indian Tribes have litigated in

federal court throughout the history of this nation. The

federal courts have already granted final judgment in

favor of Wyoming and against the Crow Tribe on the

very questions presented by the United States. A grant

of certiorari by this Court, regardless of which party

prevails on the merits, sends the signal to states and

tribes that they need not accept the federal courts’

decisions as final.

Federal litigation must present the opportunity

for final resolution of a grievance. “|T]hat’s why people

bring their disputes to court in the first place: because

the legal system promises to resolve their differences

without resort to violence and supply ‘peace and

repose’ at the end of it all.” Ute Indian Tribe of the

Uintah & Ouray Reservation v. Utah, 790 F.3d 1000,

1003 (10th Cir. 2015) (Gorsuch, J.) (Ute VI).

7

Nowhere is this finality more important than in

disputes between sovereign entities, such as Indian

tribes and the States, which exist in perpetuity. The

procedural history surrounding Hagen v. Utah, 510

U.S. 399 (1994), demonstrates why this is so.

In Hagen, this Court agreed to review a reserva-

tion boundary dispute that had already been deter-

mined by a final decision of the en banc Tenth Circuit.

510 US. at 408-09. Although the Court identified

the preliminary question whether Utah should be

“collaterally estopped” from relitigating the reserva-

tion boundaries, the Court declined to address the

procedural bar because the tribal member not only

“failed to raise” the argument but “also expressly

refused to rely upon it in seeking a writ of certiorari.”

Id. at 410.

As the United States itself recognized, however, if

left unchecked, the “gambit to avoid the binding effect

of litigation in the federal courts by attempting to

relitigate in state court potentially has far-reaching

consequences for the finality and integrity of decisions

in the federal courts.” Memorandum of the United

States as Amicus Curiae Supporting Petitioner's

Motion for Injunctive Relief, Ute Indian Tribe of

the Uintah & Ouray Reservation v. Utah, 1992 US.

Dist. Ct. Motions LEXIS 18 at *6 (D. Utah 1992);

see also Ute Indian Tribe of the Uintah & Ouray

Reservation v. Myton, 835 F.3d 1255, 1257 (10th Cir.

2016) (Ute VID.

The United States now seeks to reopen a case that

is procedurally identical to Hagen, with two wrinkles:

8

(1) it is the Tribe seeking to undo the final judgment in

a prior case it lost, not the State of Wyoming; and

(2) Wyoming has raised the procedural bar of collateral

estoppel stemming from the earlier final decision in

Repsis on the very tribal hunting right that the

Petitioner and the United States claims is the issue

here.

In Crow Tribe v. Repsis, both the State of Wyoming

and the Crow Tribe of Indians—two sovereigns—

submitted their dispute over the very hunting regula-

tions at issue in this case to the courts of the United

States. The federal courts provided a final answer: the

Crow Tribe’s suit for a declaratory judgment that the

tribe had a hunting right in Wyoming was denied and

the suit dismissed by the federal district court with

prejudice. Oct. 24, 1994 Order Granting Defendants’

Motion for Summary Judgment and Dismissing

Complaint, Crow Tribe v. Repsis, No. 92-cv-1002,

Doc. 60. See also Complaint, Repsis, J.A. Vol. I at 6

(seeking judgment declaring Crow Tribe retains its

“treaty-reserved off-reservation hunting and fishing

rights” and an injunction prohibiting interference by

Wyoming officials).

The Tenth Circuit affirmed the district court's

judgment on the grounds that Article [V of the Treaty

with the Crows expired when Wyoming became a state,

Crow Tribe v. Repsis, 73 F.3d 982, 989-93 (10th Cir.

1995), cert. denied, 517 U.S. 1221 (1996). But this was

not the only Tenth Circuit holding that supported the

district court’s final judgment.

9

The Tenth Circuit also held that the Bighorn

National Forest is occupied, and, as a result, even if

the Crow treaty right persists, it cannot be exercised

there. Id. at 993. Finally, the Tenth Circuit concluded

that if the Crow Tribe’s treaty hunting right persists,

Wyoming can regulate off-reservation treaty rights

“in the interest of conservation, provided the regula-

tion meets appropriate standards and does not

discriminate against the Indians.” Repsis, 73 F.3d at

992-93 (“[Ilf the Treaty with the Crows, 1868, had

reserved a continuing right which had survived

Wyoming’s admission, we hold there is ample evidence

in the record to support the State’s contention that

its regulations were reasonable and necessary for

conservation.”).

Herrera violated the same conservation statute

considered by the Repsis court: Herrera took a big

game animal without a license, and he did so during a

closed season that prohibits all hunting for the purpose

of conserving the species. Compare id. at 985, with

(Pet’r’s App. at 5). The Repsis record included testi-

mony about how closed seasons in winter, spring, and

summer are needed for conservation to allow big game

species to survive through the Wyoming winter and

raise new calves. See Repsis, J.A., Vol. I at 265-66 and

271-73.

The United States now argues that the Tenth

Circuit’s holdings were incorrect, but the case between

the Crow Tribe and Wyoming is over. Once adjudicated,

the resolution of this dispute between these two

parties is final.

10

To evade the final judgment in Repsis, the United

States argues that the first rationale has been over-

ruled by this Court sub silentio and the Wyoming

district court (the appellate court here) did not give

preclusive effect to the other two holdings. (U.S. Br. at

20). But as an appellate court, the Wyoming district

court did not need to decide the preclusive effect of the

other holdings because collateral estoppel precluded

relitigation of the primary holding in Repsis.

Nor are the United States’ questions presented

“purely legal” in nature, such that no further develop-

ment of the record is necessary for this Court to rein-

terpret the treaty. (U.S. Br. at 21-22). On appeal the

state district court properly recognized, “(t]he determi-

nation of the validity of the off-reservation treaty right

is a mixed question of law and fact.” (Pet’r’s App. at 24-

25). Article IV of the Treaty with the Crows recognizes

a conditional right that expires upon the happening of

certain events. Whether any or all of those events have

occurred is a matter of fact, not law. This is true

whether the fact is statehood, occupation, or peace on

the borders of the hunting districts. As such, even if the

fact at issue is not in dispute, collateral estoppel bars

relitigation of the application of that fact to the law set

forth in the Treaty.

Since 1995, the Crow Tribe has known that each

holding in Repsis is an independent basis that sustains

the final judgment: the Tribe petitioned for certiorari

on all three holdings. (See Pet. 7, 22, 24, United States

Supreme Court doc. no. 95-1560); see also, e.g., Cohen’s

Handbook of Federal Indian Law § 1804[2][e] at 1172

1]

(Nell Jessup Newton ed. 2012) (“The outcome in Crow

Tribe v. Repsis is not affected by Mille Lacs, because

the Tenth Circuit made an alternative holding that the

national forest lands in question were not unoccupied

lands.”).

A decision by this Court to reopen the final

judgment in Repsis presents a disruption like the one

in Hagen that has undermined finality in Utah for

decades. It is therefore somewhat inexplicable why the

United States would ask this Court not only to reinter-

pret the Crow treaty but to do so without extensive

lower court evidence on the intent of the parties, the

history of the negotiations, their purpose, the context

in which they occurred, and the practical construction

adopted by the parties. See Washington v. Wash. State

Comm. Passenger Fishing Vessel Ass’n, 443 U.S. 658,

675 (1979).

The two payties in this case are the State of

Wyeming and an individual in privity with the Crow

Tribe, who claims a tribal hunting right. The Repsis

final judgment binds both sovereigns, and it should

remain undisturbed. “A system of law that places any

value on finality—as any system of law worth its salt

must—cannot allow intransigent litigants to challenge

settled decisions year after year, decade after decade,

until they wear everyone else out.” Ute VI, 790 F.3d at

1012. A grant of certiorari in this case, regardless of

outcome, undermines the finality of judgments.

12

Ill. Should this Court grant review, this case

presents deeper legal issues than the

limited application of Mille Lacs urged by

the United States.

The United States asserts that Mille Lacs

repudiated Race Horse (U.S. Br. at 19), effectively

overruling that earlier decision. But this Court did not

so hold. See, e.g., Cohen’s Handbook of Federal Indian

Law § 1807[5] at 1198 (noting that Mille Lacs avoided

overruling Race Horse in its entirety).

The Court in Mille Lacs expressly acknowledged

the alternative holding of Race Horse that Congress

did not intend the language “the right to hunt on the

unoccupied lands of the United States” to survive

Wyoming statehood. 526 U.S. at 206. It distinguished

the treaty in Mille Lacs on its facts, noting that the

rights it guaranteed were “unlike the rights at issue in

Race Horse|.|” Id. at 207. As Justice O’Connor acknow!l-

edged just two years before she wrote for the Court in

Mille Lacs, when this Court decides to overrule prior

precedent, it does not do so by implication. “We do not

acknowledge, and we do not hold, that other courts

should conclude our more recent cases have, by

implication, overruled an earlier precedent.” Agostini

v. Felton, 521 U.S. 203, 237 (1997).

The decision not to overrule Race Horse was the

outcome sought by the United States using the

reasoning that the United States advanced in its brief

in Mille Lacs. See Brief for the United States,

Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172 (1999) (No. 97-1337), 1998 U.S. S. Ct.

13

Briefs LEXIS 416, *44-45. The United States did not

argue that the Court needed to overrule Race Horse to

find for the Mille Lacs Tribe.

Now the United States asserts that Mille Lacs

and Race Horse are incompatible. (U.S. Br. at 11-12.)

If this is so, then this Court has considerable freedom

to reconcile the two opinions. The doctrine of stare

decisis certainly does not require this Court to

overturn a precedent of more than 100 years in favor

of another decision less than 20 years old.

a

A

CONCLUSION

The Court should deny the Petition.

Respectfully submitted,

PETER K. MICHAEL*

Attorney General

JOHN G. KNEPPER

Chief Deputy Attorney Genera!

JAY JERDE

Special Assistant Attorney General

JAMES KASTE

Deputy Attorney General!

D. Davin DEWALD

Senior Assistant Attorney General

*Counsel of Record

OFFICE OF THE WYOMING ATTORNEY GENERAL

2320 Capitol Avenue

Cheyenne, Wyoming 82002

(307) 777-7841

peter.michael@wyo.gov