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

No. 17-532

In the Supreme Court of the Bnited States

CLAYVIN HERRERA,

Petitioner,

v.

STATE OF WYOMING,

Respondent.

On Writ of Certiorari to the

District Court of Wyoming, Sheridan County

BRIEF FOR THE ASSOCIATION OF FISH AND

WILDLIFE AGENCIES AS AMICUS CURIAE

SUPPORTING RESPONDENT

CAROL FRAMPTON

General Counsel

Counsel of Record

LANE KISONAK

Staff Attorney

ASSOCIATION OF FisH AND

WILDLIFE AGENCIES

1100 Ist Street NE, Ste. 825

Washington, D.C. 20002

(202) 838-3454

cframpton@fishwildlife.org

Counsel for Amicus Curiae

OO

Recker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTION PRESENTED

Whether Wyoming’s admission to the Union, or the

establishment of the Bighorn National Forest,

abrogated the Crow Tribe of Indians’ right to hunt on

the “unoccupied lands of the United States” negotiated

in the Second Treaty of Fort Laramie (1868), thereby

allowing for the 2016 criminal conviction of a Crow

member who hunted elk on the Bighorn National

Forest in Wyoming during closed season.

TABLE OF CONTENTS

QUESTION PRESENTED .................... i

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

INTEREST OF AMICUS CURIAE .............. l

SUMMARY OF ARGUMENT .................. 2

GEE Soc dcesccrecedsidevecesccsives 3

Il.

REVERSAL OF THE JUDGMENT OF THE

WYOMING DISTRICT COURT WOULD HARM

STATE FISH AND WILDLIFE

CONSERVATION ACROSS THE WESTERN

CPE oo ccccccccecscesvececess 3

A. States have primary legal authority to

manage fish and wildlife within their borders

with the exception of federally protected

BE, cedveseec cudbedonwaeseeéseb eves 3

B. Even under the understanding of treaty

rights and state sovereignty established by

Mille Lacs, the hunting rights at issue were

terminated by federal and state law........ 7

REVERSAL OF THE JUDGMENT OF THE

WYOMING DISTRICT COURT WOULD

CAUSE JURISDICTIONAL CONFUSION

BETWEEN STATE, TRIBAL, AND FEDERAL

EGE UMS co cccccccscsccccceces 12

ili

A. Even if the Crow’s right to hunt was not

extinguished by Wyoming’s statehood,

Wyoming should retain authority to regulate

tribal hunting off-reservation because this

Court and the Forest Service have both

interpreted Mille Lacs to allow for such

SES 5 Wanc wota ks eubudéeeneteuves

B. Even if the Crow’s right to hunt was not

extinguished by Wyoming's statehood, the

Bighorn National Forest as well as state

lands managed for wildlife are occupied

13

iv

TABLE OF AUTHORITIES

CASES

Arnold v. Mundy,

6 N.J.L. 1 (NJ. Sup. Ct. 1821) .............. 4

Buford v. Houtz,

Ea er 19, 20

Ctr. for Biological Diversity, Inc. v. FPL Group, Inc.,

83 Cal. Rptr. 3d 588 (Cal. Ct. App. 2008) ...... 6

Choctaw Nation of Indians v. United States,

EE co bcusecedecceSseneeese 21

Crow Tribe of Indians v. Repsis,

73 F.3d 982 (10th Cir. 1995) ............ 17, 18

Geer v. Connecticut,

Be IED ocdcoccvcccecees 4, 5, 8,11

Gregory v. Ashcroft,

ee och. electekieeaeene 11, 21

Hughes v. Oklahoma,

es c5 6S, ae w6s wale view aaie 4,5

Kelley v. Johnson,

ie aa eee baas oweet tees 8

Kleppe v. New Mexico,

i aes bbe depene cease Kees 4

Martin v. Waddell’s Lessee,

EE a Caan wc vows cebas opede’ 4

Minnesota v. Mille Lacs Band of Chippewa Indians,

Ss EEE Secetscveiecvoseuen passim

Missouri v. Holland,

ED nc ri bae puvees eve esas 4

New York ex rel. Kennedy v. Becker,

IE 6 c'Gl ceuns'ec 6 00 000 see 00 13

PPL Montana, LLC v. Montana,

a 9,11

Puyallup Tribe v. Dep't of Game,

ET c's ea eeeeecedeeneeen 13, 14

In re Steuart Transp. Co.,

495 F. Supp. 38 (E.D. Va. 1980) ............. 6

South Dakota v. Bourland,

SP EE “Svccevocvetecesas 14, 15, 16

State v. Cutler,

708 P.2d 853 (Idaho 1985) ................. 19

Swim v. Bergland,

696 F.2d 712 (9th Cir. 1983) ............... 22

United States v. Dion,

Se EE. cc, sec petdceswuwen wie 22

U.S. v. Rogers,

23 F. 666 (W.D. Ark. 1885) ........0ccceees 21

United States v. Oregon,

718 F.2d 200 (9th Cir. 1963) ...........0005- 13

Ward v. Race Horse,

aos on bo web esneuneehene 16

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n,

GED Ua GRRE ccc cccvcccseccccccsvns 21

STATE CONSTITUTIONS

ALASKA CONST. art. VITI,§4................. 5,7

CN 5

es ch ons oees es dsieves ees 5,7

ES, ccc ccncceceseecedses 5

ECMELCEED «0 cccocssses seeevecen 6

ED occ ccccccsencssecesdes 6

TEX. CONST. ANN. art. 16,§ 59a) ............... 6

STATUTES AND REGULATIONS

EE SE RU a 11

a ER PE a ee 11

nce cebeehebhesineeddeeeees 10

cece oka bend eeeese 17

ER RE ee a 18

30 Stat. 35 (Organic Act of 1897) .............. 19

che is cee eeeeeneeseecensecscs 10

58 Stat. 887 (Flood Control Act of 1944) ........ 14

68 Stat. 1191 (Cheyenne River Act of 1954) ..... 14

16 U.S.C. §§ 528-531 (Multiple-Use Sustained- Yield

Act of 1960 (MUSYA)) ..............00005- 18

DT coche devedeseecccasecssceses 18

vil

16 U.S.C. §§ 669-6691 (2012) (Federal Aid in

Wildlife Restoration Act (“Pittman-Robertson

PII 0 i ie a a eee i]

16 U.S.C. §§ 670g-6700 (Sikes Act Extension of

a a a ed ek aan 18

oo es eee ehdannes 18

16 U.S.C. §§ 703-712 (Migratory Bird Treaty

DT Uiubascccauk douse ewaed bei ewenaks 3,4

16 U.S.C. § 1331 et seg. (Wild Free-Roaming Horses

ie ee eee hanee eb e i: 4

16 U.S.C. § 1531 et seg. (Endangered Species

iidcodclsnsddwbannvaaetetarkwestatedes 3

16 U.S.C. §§ 1600-1687 (The National Forest

Management Act of 1976(NFMA)) .......... 18

I ad sa vee eeweukews 11

1939 Wyo. Seas. Laws 83-116 .................. 9

ok ce ccnceeeeees y

Wro. STAT. ANN. § 23-1-401 .................-- i]

OTHER AUTHORITIES

6 JUDICIAL AND STATUTORY DEFINITIONS OF WORDS

ee ong cnechadanee 21

Michael C. Blumm & Aurora Paulsen, The

Public Trust in Wildlife, 6 UTAH L. REV. 1437

DET Gcouvdanevcbevodedactvuceshane 6, 8,9

Michael C. Blumm & Lucus Ritchie, The Pioneer

Spirit and the Public Trust: The American Rule

of Capture and State Ownership of Wildlife, 35

ves eeonebeuwae bee eds 7

H. Rep. No. 238, 115th Cong., Ist Sess. 6 (2017) ... 8

CALVIN L. KING, REESTABLISHING THE ELK IN THE

BIGHORN MOUNTAINS OF WYOMING (1963) .. 9, 10

Letter from Hon. P.C. Knox to Rep. John F. Lacey

(Jan. 3, 1902), reprinted in H.R. Rep. No. 968,

57th Cong., Ist Sess. 14 (1902) ............. 19

Memorandum of Understanding Regarding Tribal-

USDA-Forest Service Relations on National

Forest Lands Within the Territories Ceded in

Treaties of 1836, 1837, and 1842 (June 11, 1999)

RE RAR I ON Aa a aT 18

THE WILDLIFE Soc’y, THE NORTH AMERICAN MODEL

OF WILDLIFE CONSERVATION, Tech. Rev. 12-04

ee a ee ae a a &

Charles F. Wilkinson & H. Michael Anderson, Land

and Resource Planning in the National Forests,

SP DUE ccc ccccensesecss 18, 20

David Willms & Anne Alexander, The North

American Model of Wildlife Conservation in

Wyoming: Understanding It, Preserving It, and

Funding Its Future, 14 Wyo. L. REV. 659 (2014)

ceweedeeanevesneens been tedeeus cen Eee

1

INTEREST OF AMICUS CURIAE

The Association of Fish and Wildlife Agencies

(“Association”) is a nonprofit professional association

that represents the state, provincial, and territorial

fish and wildlife agencies of the United States and

Canada. ' These agencies are responsible for conserving

wildlife resources on public and private lands within

their borders. The Association supports science-based

wildlife and land use. Since 1902 the Association has

built and maintained a productive network of state,

federal, and private stakeholders who all seek to

advance lasting solutions to wildlife management

challenges, from conservation financing to climate

change adaptation to law enforcement. For more than

a century the Association has helped shape state

agency governance and advocated for dedicated funding

sources to conserve game and non-game species.

From time to time the Association has participated

as amicus curiae to protect the rights and interests of

its member agencies as the primary trustees for the

states’ wildlife resources. Each of the Association’s

member agencies exercises its constitutionally or

statutorily derived powers to achieve the common goals

of fish and wildlife conservation and public enjoyment

‘ Pursuant to this Court’s Rule 37.6, amicus and its counsel note

that no part of this brief was authored by counsel for any party,

and no person or entity other than the Association or its members

made any monetary contribution to the preparation or submission

of the brief. The parties have filed blanket consents to the filing of

amici briefs in this matter.

2

of those resources. This goal is best met when

application of the law—whether in statute, regulation,

or treaty—is clear and consistent, allowing wildlife

managers to address urgent issues as they arise. The

authority of one of our member agencies to manage

resident wildlife is at stake in this case, and the same

goes for the agencies of many other states on whose

lands a reversal of the court below could revive off-

reservation treaty rights to hunt and fish in derogation

of prevailing state and federal law.

In this case, the District Court of Wyoming for

Sheridan County affirmed Petitioner’s conviction on

charges of taking big game during Wyoming’s closed

season and for being an accessory to the same, rejecting

his defense of treaty rights under the Second Treaty of

Fort Laramie of 1868 (“Crow Treaty”). The Association

files this brief because its member agencies have a

direct and substantial interest in affirmance of the

ruling below.

The filing of this brief was authorized by the

Executive Committee of the Association during its

meeting on August 9, 2018. The brief is filed with the

blanket consent of Petitioner and Respondent under

this Court’s Rule 37.2(a).

SUMMARY OF ARGUMENT

The Association’s member state agencies, including

the Wyoming Game and Fish Department, retain the

primary legal authority to manage fish and wildlife

within their borders to the extent that there is no

conflict with federal law. The agencies derive this

authority from their state police power and public trust

authority over fish and resident wildlife. If this Court

3

reverses the judgment of the court below, Wyoming’s

and other states’ long-recognized authority to regulate

the use of resident wildlife could be instantly curtailed,

with highly uncertain results for tribal and non-tribal

beneficiaries as well as state and federal managers of

natural resources. We ask this Court to affirm the

ruling of the district court.

ARGUMENT

I. REVERSAL OF THE JUDGMENT OF THE

WYOMING DISTRICT COURT WOULD HARM

STATE FISH AND WILDLIFE

CONSERVATION ACROSS THE WESTERN

UNITED STATES.

The Association adopts the facts and arguments

raised in Respondent’s brief. The Association believes

it can be of most use by providing this Court with an

overview of its member agencies’ legal authority to

manage fish and wildlife within their borders, and by

discussing how reversal of the Wyoming district court

would harm fish and wildlife conservation across the

United States.

A. States have primary legal authority to

manage fish and wildlife within their

borders with the exception of federally

protected species.

States have primary legal authority to manage fish

and resident wildlife within their borders, with the

specific exception of species protected under federal

law, such as the Endangered Species Act, 16 U.S.C.

§ 1531 et seq., or the Migratory Bird Treaty Act, 16

4

U.S.C. §§ 703-712.’ States exercise their police power

to conserve wild, non-domesticated species in trust for

all people, in conformity with precedent spanning two

centuries.

State ownership of natural resources was first

recognized in 1821 by New Jersey's highest court.

Arnold v. Mundy, 6 N.J.L. 1, 43 (N.J. Sup. Ct. 1821)

(finding that navigable waters and the lands below

them came into state trusteeship following the

American Revolution). This Court, in Martin v.

Waddell’s Lessee, adopted the Arnold court’s theory of

trust ownership and recognized that the people of a

state retain the right to fish in its navigable and tidal

waters subject to state ownership. 41 U.S. 367, 368

(1842). Next, in Geer v. Connecticut, this Court applied

the public trust directly to wildlife:

The ownership being in the people of the state,

the repository of the sovereign authority .. . it

necessarily results that the legislature, as the

representative of the people of the state, may

withhold or grant to individuals the right to hunt

and kill game or qualify or restrict [that right), as

... will best subserve the public welfare.

* See Missouri v. Holland, 252 U.S. 416, 435 (1920) (holding that

the Migratory Bird Treaty prevailed over state regulation of

migratory birds pursuant to the Supremacy Clause); Kleppe v. New

Mexico, 426 U.S. 529, 547 (1976) (holding that the Wild Free-

Roaming Horses and Burros Act, 16 U.S.C. § 1331 ef seg.,

authorizes the federal government, pursuant to the Property

Clause, to regulate wild horses and burros); Hughes v. Oklahoma,

441 U.S. 322, 342 (1979) (holding that state regulations of wildlife

may be invalidated for improper discrimination against interstate

commerce).

5

161 U.S. 519, 533 (1896). Even in Hughes v. Oklahoma,

where this Court overturned a state prohibition on

transport of minnows out-of-state for discrimination

against interstate commerce, the Court recognized in

unambiguous terms the need to preserve “the

legitimate state concerns for conservation and

protection of wild animals” as “legitimate local

purposes similar to the States’ interests in protecting

the health and safety of their citizens.” 441 U.S. 322,

335-37 (1979).

At least seven states have amended their

constitutions to codify a state common-law public trust

in fish and wildlife, thereby creating authority to

manage those resources.’ In at least twelve others the

* See ALASKA CoNsT. art. VIII, § 4 (“Fish, forests, wildlife,

grasslands, and all other replenishable resources belonging to the

State shall be utilized, developed, and maintained on the sustained

yield principle, subject to preferences among beneficial uses.”),

Haw. CONnsT. art. XI, § 1 (“For the benefit of present and future

generations, the State...shall conserve and protect Hawaii's

natural beauty and all natura! resources, including land, water,

air, minerals and energy sources, and shall promote the

development and utilization of these resources in a manner

consistent with their conservation and in furtherance of the self.

sufficiency of the State.”); LA. Const. art. IX, § 1 (“The natural

resources of the state, including air and water, and the healthful,

scenic, historic, and esthetic quality of the environment shall be

protected, conserved, and replenished insofar as possible and

consistent with the health, safety and welfare of the people.”);

Mass. CONST. art. XCVII (“The people shall have the right to clean

air and water, freedom from excessive and unnecessary noise, and

the natural, scenic, historic, and esthetic qualities of their

environment; and the protection of the people in their right to the

conservation, development and utilization of the agricultural,

mineral, forest, water, air and other natural resources is hereby

6

public trust is recognized expressly through statute,

while in 29 others the state’s judiciary has interpreted

state authority or been persuaded by rulings in sister

states to recognize a public trust encompassing wildlife.

See Michael C. Blumm & Aurora Paulsen, The Public

Trust in Wildlife, 6 UTaAn L. Rev. 1437, 1493-1504

(2013).

This public trust obligation, including the

mechanisms for disposition of resources and public

accountability, comes in many forms. In some states a

private or governmental cause of action is available,‘

declared to be a public purpose.”); MONT. CONST. art. II, § 3 (“All

persons are born free and have certain inalienable rights. They

include the right to a clean and healthful environment...”); PENN.

Const. art. I, § 27 (“The people have a right to clean air, »ure

water, and to the preservation of the natural, scenic, historic and

esthetic values of the environment. Pennsylvania's public natura!

resources are the common property of all the people, including

generations yet to come. As trustee of these resources, the

Commonwealth shall conserve and maintain them for the benefit

of all the people.”); Tex. Const. ANN. art. 16, § 5%a) (“The

conservation and development of all of the natural resources of this

State ... and the preservation and conservation of all such natura!

resources of the State are each and all hereby declared public

rights and duties; and the Legislature shal! pass all such laws as

may be appropriate thereto.”).

* Compare Ctr. for Biological Diversity, Inc. v. FPL Group, Inc., 83

Cal. Rptr. 3d 588, 590-91 (Cal. Ct. App. 2008) (“[P)rivate parties

have the right to bring an action to enforce the public trust [in

wildlife]") with In re Steuart Transp. Co., 495 F. Supp. 38, 40 (E.D.

Va. 1980) (holding that, while “no individual citizen” has a PTD

right to seek recovery for damages to waterfowl, “the state

certainly has a sovereign interest” in doing so).

7

while in others one finds an emphasis on public welfare

or mixed use of resources.”

For all of these variations, such provisions show

clearly that “the state ownership doctrine lives on in

the twenty-first century in virtually all states,

affording states ample authority to regulate the taking

of wildlife and to protect their habitat.” Michael C.

Blumm & Lucus Ritchie, The Pioneer Spirit and the

Public Trust: The American Rule of Capture and State

Ownership of Wildlife, 35 ENVTL. L. 673, 706 (2005).

State ownership of wildlife not only encourages, but

requires stewardship on behalf of all residents. Bound

together by a shared history of emergency and renewal,

professional and recreational conservationists pursue

management and enjoyment of wildlife based on

principles of public trust, sound science, and rule of

law.

B. Even under the understanding of treaty

rights and state sovereignty established by

Mille Lacs, the hunting rights at issue were

terminated by federal and state law.

State fish and wildlife agencies regulate game

harvest in order to conserve resources, obtain data, and

ensure public safety. Through regulations setting open

seasons, allowable means for harvest, bag limits, and

available tags, state agencies apply the best available

* See, e.g., ALASKA CONST. art. VIII, § 4 (articulating mixed-use and

sustained-yield principles); LA. Const. art. IX, § 1 (balancing

protection of environmental resources with public health, safety,

and welfare).

8

science to sustain the activities that perpetuate the

bonds between people and nature.

The need for _ interjurisdictional regulatory

certainty, where it can be secured, cannot be

overstated. In 2010 The Wildlife Society, an

international scientific organization devoted to wildlife

conservation, identified resource availability for

enforcement of seasons, bag limits, and methods of

take, as a key challenge to wise state allocation of

wildlife resources, including regulation of harvest. THE

WILDLIFE Soc’y, THE NORTH AMERICAN MODEL OF

WILDLIFE CONSERVATION, Tech. Rev. 12-04 at 18 (Dec.

2012). In particular a “lack of specific permits” may

reduce the ability of a state wildlife agency to base its

decisions in science and collaborate with its federal

counterparts. Id.°

While the scope of Geer and its progeny has been

limited over the course of the twentieth century, see

note 2 supra, states continue to enjoy a “presumption of

legislative validity” when exercising their broad police

powers in the public interest. Kelley v. Johnson, 425

U.S. 238, 247 (1976). Wyoming’s law enforcement

personnel, in exercising the state’s police powers

against Petitioner, were working well within the

bounds of authority still recognized by courts in a

majority of states, see Blumm & Paulsen, supra, at

* See also H. Rep. No. 238, 115th Cong., 1st Sess. 6 (2017) (“The

Department of the Interior and the U.S. Forest Service are

expected to prioritize continued coordination with other Federal

agencies and State fish and wildlife agencies to recognize and fully

utilize State fish and wildlife data and analyses as a primary

source to inform land use, planning, and related natural resource

decisions.”).

9

1493-1504, and blessed by this Court in PPL Montana,

LLC v. Montana, 565 U.S. 576, 603-604 (2012), which

held that the public trust doctrine “doles| not depend

on the [U.S.] Constitution” and “remains a matter of

state law!|.|”

The Wyoming Game and Fish Department (WGFD)

was created by the state’s legislature, WYO. STAT. ANN.

§ 23-1-401, and is supervised by the Wyoming Game

and Fish Commission (WGFC), itself created in 1911.

See David Willms & Anne Alexander, The North

American Model of Wildlife Conservation in Wyoming:

Understanding It, Preserving It, and Funding Its

Future, 14 Wyo. L. Rev. 659, 674 (2014). State

ownership of wildlife in Wyoming is expressed in

typical statutory form. Wyo. STAT. ANN. § 23-1-103

(“For the purpose of [1939 Wyo. Sess. Laws 83-116), all

wildlife in Wyoming is the property of the state . . . It

is the purpose of this act and the policy of the state to

provide an adequate and flexible system for control,

propagation, management, protection and regulation of

all Wyoming wildlife . . . ”).

Early in the life of the WGFD, agency leaders joined

with volunteer conservationists to translocate elk from

Jackson Hole and other areas in Wyoming to the

Bighorn Mountains and create feedgrounds to

counteract the elimination of winter ranges. Some of

these elk transplants occurred with the support of the

Federal Aid in Wildlife Restoration Act (“Pittman-

Robertson Act”), which apportions funds from an excise

tax on firearms and ammunition to state fish and

wildlife agencies for wildlife and habitat management.

16 U.S.C. §§ 669-6691 (2012). See CALVIN L. KING,

REESTABLISHING THE ELK IN THE BIGHORN MOUNTAINS

10

OF WYOMING 5-37 (1963); Willms & Alexander, supra,

at 677.

Article IV of the 1868 Treaty specifies that the Crow

“shall have the right to hunt on the unoccupied lands

of the United States so long as game may be found

thereon, and as long as peace subsists among the

whites and Indians on the borders of the hunting

districts.” 15 Stat. 650.

Even though the 1868 Treaty did not name

Wyoming statehood as a circumstance that would

terminate the Crow’s right to hunt, and Indian treaties

are generally interpreted to mean what tribal parties

would have understood them to mean at the time of

their negotiation, see Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 196 (1999), federal

and state regulation of land and wildlife resources

within Wyoming’s borders sufficed to extinguish the

Article IV right as contemplated by the Treaty parties

by asserting jurisdiction over ceded lands. See Section

II(b) infra; Br. of Resp. at 6-10.

Chiefly this occurred through federal recognition

and reservation of state authority over wildlife. In

1899, Congress enacted a law regarding the protection

and administration of forest preserves, directing

national forest administrators, supervisors, and agents

to “aid in the enforcement of the laws of the State or

Territory in which said forest reservation is situated, in

relation to the protection of fish and game .. .” 30 Stat.

1095.

This statute augured a longstanding state-federal

consensus, reaffirmed nearly a century later in federal

regulation, that state agencies retain authority to

11

manage fish and wildlife resources on federal land. As

43 C.F.R. 24.3(a), promulgated in 1983, reaffirms: “In

general the States possess broad trustee and police

powers over fish and wildlife within their borders,

including fish and wildlife found on Federal lands

within a State.”

As for the National Forest System, not covered by

43 C.F.R. part 24, the Federal Land Policy and

Management Act (“FLPMA”) provides equivalent

language:

[Nlothing in this Act shall be construed as

authorizing the Secretary concerned to require

Federal permits to hunt and fish on public lands

or on lands in the National Forest System and

adjacent waters or as enlarging or diminishing

the responsibility and authority of the States for

management of fish and resident wildlife.

43 U.S.C. § 1732(b) (emphasis added).

While 43 C.F.R. 24.3(a) also recognizes that treaties

constitute a source of Federal authority to manage fish

and wildlife, id., the same canons requiring

congressional clarity to terminate tribal treaties

counsel great caution in finding displacement of state

management authority. See Gregory v. Ashcroft, 501

US. 452, 460 (1991) (federal exercise of preemptive

powers in traditional areas of state regulation is

“extraordinary .. . in a federalist system” and must be

“exerciseld] lightly”).

Of course FLPMA’s language does not address the

question of what rights survive in the 1868 Treaty, but

this Court’s canons of federalism and its holdings on

public trust from Geer to PPL Montana, along with the

12

congressional and regulatory recognitions of state

management authority dating to 1899, all show that

courts, lawmakers, and regulators over the lifetime of

the Treaty understood that it would take a clear

showing from Congress to curtail the authority of state

fish and wildlife agencies to regulate game within their

borders. Defeasible treaty rights like the one in Article

IV of the 1868 Treaty do not amount to such a showing.

Therefore WGFD retains its authority to manage

fish and game within Wyoming, and its law

enforcement officers retained authority to cite

Petitioner for the misdemeanors of taking big game

without a license or during closed season, to which

assertion of the Article [V right cannot be a defense.

Il. REVERSAL OF THE JUDGMENT OF THE

the states on one hand, and federal lands on the other,

is a delicate dance even without the surprise of off-

reservation treaty rights long understood by game

managers to be extinguished. Recognizing the right in

Article [V of the 1868 Treaty would produce even more

jurisdictional uncertainty, and burden the

administration of the wildlife trust held for all people.

13

A. Even if the Crow’s right to hunt was not

because this Court and the Forest Service

have both interpreted Mille Lacs to allow

for such regulation.

In 1968, this Court ruled that a state may exercise

its police power to regulate tribal fishing off-

reservation pursuant to surviving treaty rights in the

interest of conservation if “the regulation meets

appropriate standards and does not discriminate

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

391 U.S. 392, 398 (1968) (citing New York ex rel.

Kennedy v. Becker, 241 U.S. 556, 563-64 (1916): “[The

reserved treaty right] is fully satisfied by considering

it a reservation of a privilege of fishing and hunting

upon the granted lands in common with the grantees .

.. but subject, nevertheless, to that necessary power of

appropriate regulation . . . which inhered in the

sovereignty of the state over the lands where the

privilege was exercised.”).’

While the amicus brief of the natural resources law

professors asserts that tribal members “tend to take

only a small percentage of the available large game

animals” and cites irrelevant 2016 deer figures from

' The Ninth Circuit elaborated on this “conservation necessity”

standard by requiring that such measures be necessary to preserve

a reasonable margin of safety between existing levels of stock and

imminence of extinction (for fishing), United States v. Oregon, 718

F.2d 299, 305 (9th Cir. 1983), whereas the Tenth Circuit has not

elaborated beyond Puyallup.

14

Wisconsin for this assertion, Br. of Natural Res. Law

Profs. at 22-23, tribal take must not be considered in a

vacuum separate from the factors that inform elk

management throughout the state of Wyoming. Though

the amicus professors assert that elk populations in the

Bighorn National Forest are currently “higher than the

desired management goal,” id. at 23, the seasons,

harvest limits and other regulations set by WGFD are

expressly targeted to mitigate the effects of the type of

off-season conduct engaged in by petitioner, i.e.,

“activity on winter range involv{ing] collection of antler

sheds” which can disturb the range, “increase

mortality|,|” and result in a “lack of elk security.” U.S.

Forest Serv., Final Environmental Impact Statement for

the Revised Land and Resource Management Plan at 3-

2193-220 (2005). As the Forest Service’s EIS for

Bighorn states: “[U|]nder most climate conditions,

hunter harvest is the most important factor influencing

population abundance.” /d. at 3-221. Without the extent

of its full authority to regulate tribal and non-tribal

hunting alike, WGFD may be unable to fully satisfy the

environmental requirements for secure elk populations.

Accommodating state conservation needs under

Puyallup is a well-trod and reasonable path for this

Court to take. But it is not the only path that would

reaffirm WGFD’s authority to regulate tribal hunting

off-reservation. This Court has previously shown due

concern for exercises of federal jurisdiction that

terminate tribal treaty rights in the interest of resource

management, and should do the same here.

In South Dakota v. Bourland, this Court held that

the Flood Control Act of 1944, 58 Stat. 887, and the

Cheyenne River Act of 1954, 68 Stat. 1191, jointly

15

terminated the Cheyenne River Sioux Tribe’s right to

regulate hunting and fishing by non-Indians in areas

taken by statute for the Oahe Dam and Reservoir. 508

U.S. 679, 683, 695 (1993). The Tribe had possessed

authority to exclude non-Indians from and regulate

non-Indians’ use of lands taken for the Dam and

opened for general public recreation, including hunting

and fishing subject to federal and state regulations. /d.

at 683, 689-90. Justice Thomas’s majority opinion

(holding that “general principles of ‘inherent

sovereignty . . . [did] not enable the Tribe to regulate

non-Indian hunting and fishing in the taken areal|,]” id.

at 694) notes that tribal rights were expressly “subject

.. . to regulations governing the corresponding use by

other [United States] citizens|.|” Id. at 679.

Six years later, in the wake of Mille Lacs, the Forest

Service entered into a memorandum of understanding

(MOU) with tribes who obtained recognition of their

off-reservation treaty rights in that case. This MOU

acknowledged the “existing treaty rights of Tribes to

hunt and fish . . . on national forest lands in accord

with applicable regulatory authorities of the States or

other federal agencies having jurisdiction over such

activities.” Memorandum of Understanding Regarding

Tribal-USDA-Forest Service Relations on National

Forest Lands Within the Territories Ceded in Treaties

of 1836, 1837, and 1842 at 1 (June 11, 1999)

(hereinafter Tribal-USFS MOU}.

While no explicit limitation of the type at issue in

Bourland appears in Article IV of the 1868 Treaty, the

Article IV right should nonetheless be construed as

limited by WGFD’s regulations to the extent that they

were promulgated in order to address mortality factors

16

relating to tribal and non-tribal hunting under WGFD’s

statutory authority and in collaboration with the

Forest Service.

Should this Court hold that the Crow Tribe’s right

to hunt off-reservation was not extinguished by

Wyoming's statehood, it should still take heed of the

language used by the Forest Service’s and tribes’

common understanding forged months after Mille Lacs,

and preserve WGFD’s management authority.*

B. Even if the Crow’s right to hunt was not

extinguished by Wyoming's statehood, the

Bighorn National Forest as well as state

lands managed for wildlife are occupied

within the meaning of the treaty.

Mille Lacs held that the Crow right to hunt on

federal lands was not temporary because the reasoning

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

to an absurd result where any federal right may be

considered temporary “because Congress could

terminate [it] at any time by selling the lands.” 526

U.S. at 207. But in the case at bar, it is not the

disposition of the ceded lands that resulted in the end

of the off-reservation treaty hunting right. Rather, the

right was extinguished through a series of clear

exercises of federal jurisdiction under the Property

* Though Bourland preceded Mille Lacs, the central holding in

Mille Lacs—..e., that “Indian treaty-based usufructuary rights are

not inconsistent with state sovereignty over natural resources”,

526 U.S. at 208—does not conflict with Bourland’s central holding

that legislation creating a regime of federal management, which

itself preserves state authority, may terminate off-reservation

treaty rights without expressly repealing them.

17

Clause and reservations of state authority under

mixed-use legislation enacted over the course of the

twentieth century. In terminating the treaty right

these actions did not produce an absurd result; they

produced an inevitable one.

If the notion that a treaty “itself defines the

circumstances under which |its] rights would

terminate”, Mille Lacs, 526 U.S. at 207, applies to the

1868 Treaty, then a plain reading of Article IV of that

treaty provides numerous occasions for this Court to

find termination.

The 1868 Treaty established tribal hunting rights

on “unoccupied lands of the United States.” Art. IV, 15

Stat. 650. While the Tenth Circuit held in Crow Tribe

of Indians v. Repsis that the creation of the Bighorn

National Forest occupied the land by making it “no

longer available for settlement|,|” 73 F.3d 982, 993

(10th Cir. 1995), Petitioner and the United States as

amicus argue to the contrary. Br. of Pet’r at 24-30; Br.

of United States at 32-40. The Association submits that

the federal and state governments occupied the ceded

lands within the meaning of the Treaty, but that this

Court need not rely solely on Repsis to come to such a

conclusion.

The principles of multiple use have applied to the

National Forest System since its inception. Forest

Service Chief Terdinand Silcox explained them

succinctly in 1936:

[T)he national forests are put, and must be put,

to a multiplicity of uses. Often these uses

conflict. Sometimes the conflict can be

harmonized, sometimes one use must give way.

18

Making the forests of greatest possible public

service would be wholly impossible without

careful planning to govern land use .. .

U.S. Forest Serv., U.S. Dep’r OF AGRIC., REPORT OF

THe CHier 2 (1936). A mandate for multiple-use

governance came in the Multiple-Use Sustained- Yield

Act of 1960 (MUSYA), 16 U.S.C. §§ 528-531, which

requires timber, recreation, fish and wildlife, and

watershed uses to be planned for on equal statutory

footing. § 528. The National Forest Management Act of

1976 (NFMA), 16 U.S.C. §§ 1600-1687, sets forth legal

standards to guide national and local planning, and

under the Sikes Act Extension of 1974, 16 U.S.C.

§§ 670g-6700, comprehensive state-federal plans to

conserve wildlife in national forests require that state

hunting, fishing, and trapping law control. § 670h(b).

Long before MUSYA, the Sikes Extension, and

NFMA, however, forest planners were guided by the

assumption that “range and timber were the focus of

activity in virtually all national forests.” Charles F.

Wilkinson & H. Michael Anderson, Land and Resource

Planning in the National Forests, 64 Or. L. Rev. 1, 24

(1985).

This Court need not rely on the reasoning of Repsis

to conclude that the creation of the Bighorn National

Forest in 1897 was but one step in a process that

resulted in the occupation of ceded land. In Repsis the

Tenth Circuit concluded that because President

Cleveland created the Forest pursuant to authority

conferred by Congress, 29 Stat. 909-10, and later the

Organic Act and MUSYA were enacted, the land

became occupied. 73 F.3d at 993.

19

But the Supreme Court of Idaho took a different

path, one that is not foreclosed by Mille Lacs and which

should still be satisfied by Respondent and the Forest

Service here. In State v. Cutler, that court noted that

the federal government “is not . . . foreclosed from

using specific tracts of lands in such a manner that the

signatory Indians to treaties would have understood

the lands to be claimed, settled or occupied” so as to

“exclulde|” treaty rights. 708 P.2d 853, 856 (Idaho

1985). Roads, campsites, or administrative buildings

can be considered to occupy the land. /d. at 859.

Not only those structures, but also the various

accoutrements of wildlife conservation, must be able to

occupy the land within the treaty’s meaning.

In 1902 President Theodore Roosevelt's Attorney

General Philander C. Knox informed Representative

John Lacey that he interpreted the Organic Act of

1897, 30 Stat. 35, to signify that the United States, as

“proprietor” of the national forests, could “forbid and

punish any and all kinds of trespass upon or injury to

the forest reserves, including the trespass of entering

upon or using them for the killing, capture, or pursuit

of game” so as “not [to] conflict with any State

authority” applicable to the killing, capture, or pursuit

of game. Letter from Hon. P.C. Knox to Rep. John F.

Lacey (Jan. 3, 1902), reprinted in H.R. Rep. No. 968,

57th Cong., Ist Sess. 14 (1902).

Conversely, federal grazing policy on the lands that

would become national forests was initially permissive

of grazing free of fees or regulation. See Buford v.

Houtz, 133 U.S. 320, 327-28 (1890) (“Everybody used

the open unenclosed country, which produced

nutritious grasses, as a public common on which their

20

horses, cattle, hogs and sheep could run and graze”

across open ..ceas “|un|separated from the lands owned

by the United States”.). At this time the federal

government’s plan was to “transfer ownership of the

public domain in small parcels to farmers under the

homesteading and preemption laws.” 64 Or. L. REV. at

93.

It is not the merits of a permissive grazing policy or

a restrictive game policy that are at issue, but rather

the understanding, endorsed by this Court and

repeatedly evidenced in the early history of forest

management, that portions of ceded land that would

become National Forests, as well as those that were

sold to private landowners, were considered “used” for

grazing purposes. Creating the Bighorn National

Forest from lands that remained in the public domain,

therefore, did not merely make land unavailable for

settlement, as Petitioner argues, but set it apart for

then prevailing on private lands. See Buford, 133 U.S.

at 326. While state agencies regulate game within their

borders, see pages 3-10 supra, such authority must be

understood as concurrent with the Forest Service's

creation of a framework resulting in the use and

occupation ceded lands.

The United States argues in support of Petitioner

that the term “occupied” would have been narrowly

understood by both parties to be “akin to physical

settlement.” Br. of United States at 33. But physical

settlement has never been understood to be the only

activity that indicates or defines the occupation of

ceded lands.

21

The Association again points to canons of

interpretation that require express congressional

intent and judicial caution in finding preemption of

state law. Ashcroft, 501 U.S. at 460. Working at cross-

purposes with these canons is the requirement for

Congress to “clearly express its intent” to terminate

treaties. Mille Lacs, 526 U.S. at 202. Resolving the

conflict between these canons hinges on a somewhat

vexing question: Was Congress clearer in the 1868

Treaty (when it failed to elaborate the “right to hunt on

the unoccupied lands of the United States”) or in the

Organic Act and subsequent statutes that repeatedly

vested jurisdiction over ceded lands in the Forest

Service and reserved primary wildlife authority for the

states?

Petitioner maintains that “occup|ation]” at the time

of the 1868 Treaty and other treaties was considered

synonymous with “settle|ment]”. Br. of Pet’r at 33-35

(citing Washington v. Washington State Commercial

Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676

(1979); Choctaw Nation of Indians v. United States, 318

U.S. 423, 432 (1943). But a contemporary legal

dictionary notes that “occupation” was also

“synonymous with the expression ‘subject to the will

and control’|.|” 6 JUDICIAL ANDSTATUTORY DEFINITIONS

OF WORDS AND PHRASES 4902 (1904) (citing, inter alia,

U.S. v. Rogers, 23 F. 658, 666 (W.D. Ark. 1885) (“The

government of the United States occupies all of its

public lands.”)). This alternative definition bears

heavily on the question of what constitutes a “hunting

district” within the meaning of the 1868 Treaty.

Petitioner argues that these areas merely

“encompassed off-reservation lands where ‘the whites’

had not settled, for ‘the whites’ were located on the

22

opposite side of ‘the borders of the hunting districts,’

i.e., the ceded land.” Br. of Pet’r at 34. What this

argument, grounded originally in the definition of

“hunting district” found in Article 5 of the Fort

Laramie Treaty of 1851, omits is that the regulatory

framework of state wildlife management (by WGFD)

and federal land management (by the Forest Service)

altered the nature of the land within the “hunting

districts” so as to occupy them by virtue of the federal

government’s will and control. See also Br. of Resp. at

42-48 (describing the historical understanding of the

function of “hunting districts” relative to reservations,

diminishing game supply, and statehood).

In United States v. Dion this Court established the

requirement that “Congress actually considered the

conflict between its intended action on the one hand

and Indian treaty rights on the other, and chose to

resolve that conflict by abrogating the treaty.” 476 U.S.

734, 740 (1986). Petitioner’s brief argues that off-

reservation usufructuary rights were not discussed in

the lead-up to the passage of the General Revision Act,

and cites the Ninth Circuit as rejecting the claim that

the President may extinguish treaty rights by declaring

a forest reserve. Br. of Pet’r at 39 (citing Swim v.

Bergland, 696 F.2d 712,717 (9th Cir. 1983)). But, much

as settlement is not exclusively synonymous with

occupation, occupation was not at all limited to

personal use and habitation, as Petitioner's brief

asserts was the sole definition in legal practice at the

time. Br. of Pet’r at 36. The courts, Congresses, state

officials, and tribal leaders of the nineteenth and

twentieth centuries shared a far broader

understanding of occupation, and federal and state

23

officials successfully extinguished the Article [V right

through occupation.

In sum, this Court should affirm the judgment of

the District Court of Wyoming for Sheridan County and

thereby preserve the valid management authority of

wildlife agencies in all states.

CONCLUSION

For the foregoing reasons, the judgment below

should be affirmed.

Respectfully submitted,

CAROL FRAMPTON

General Counsel

Counsel of Record

LANE KISONAK

Staff Attorney

ASSOCIATION OF FISH AND

WILDLIFE AGENCIES

1100 1st Street NE, Ste. 825

Washington, D.C. 20002

(202) 838-3454

Counsel for Amicus Curiae