# Amicus Curiae 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%3A17

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A17. Public record. Not legal advice.