# Amicus Curiae Brief — Herrera v. Wyoming, 138 S. Ct. 720 (2018) (No. 17-532) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A25 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2018 ## Text No. 17-532 STATE OF WYOMING, Respondent. * On Writ Of Certiorari To The District Court Of Wyoming, Sheridan County Tel.: (402) 471-2682 Dave.Lopez@nebraska.gov [Additional Counsel Listed At The End Of The Brief! COCKLE LEGAL BRIEFS (800) 226-6964 WWW COCKLELEGALBRIEFS COM i QUESTION PRESENTED Whether Petitioner is precluded from relitigating the Crow Tribe’s hunting rights within Wyoming and, more particularly, in the Bighorn National Forest. 33 TABLE OF CONTENTS Page QUESTION PRESENTED. ....0000.0..0...0...cccccee0e00e- i TABLE OF CONTENTS .................ccceccecceescesceeeee ii TABLE OF AUTHORITIES... iii INTEREST OF AMICI STATES.......000000000000000. 1 SUMMARY OF THE ARGUMENT .......... 3 EEE TE Aa RT Tae 4 I. The Wyoming state courts properly ap- plied the doctrine of issue preclusion as a bar to Petitioner’s affirmative criminal de- Il. This Court has never recognized the broad ee ee Il. ms me Circuit’s alternative basis for affirmance is independently preclusive....... 13 NEI Ui iisderstencshcrsesencionigsinctitbtbdensaiiainsiesingetaintsidanasien 19 TABLE OF AUTHORITIES Page CASES Agostini v. Felton, 521 U.S. 203 (1997) ..................0.000.. 8 Allen v. McCurry, 449 U.S. 90 (1980) ..0.00........ccccccccceees 5 Ass'n of Battery Recyclers v. EPA, 716 F.3d 667 Ee SS RET HD Sean aaa 15 Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 EE REESE EERE Ml ESE ES Ce 5 B & B Hardware, Inc. v. Hargis Indus., Inc., 135 I 4,11,16 Baldwin v. Iowa State Traveling Men’s Assn., EES I Ea ee 4 Bobby v. Bies, 556 U.S. 825 (2009) ...............ccccccceeeeeees 8 Crow Tribe of Indians v. Repsis, 73 F.3d 982 EI passim Deweese v. Town of Palm Beach, 688 F.2d 731 EERE i ESS SE Se 15 Gelb v. Royal Globe Ins. Co., 798 F.2d 38 (2d Cir. RE nee ee ee ee 15 Hagen v. Utah, 510 U.S. 399 (1994) 000... cccccceeeeee 10 In re Westgate-California Corp., 642 F.2d 1174 RE ER re A ae eee 15 Jean Alexander Cosmetics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244 (3d Cir. 2006) «2.000.000... .cccccccccen. 15 Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396 (7th Cir. 1987)..................cccceccecceseees 15 iv TABLE OF AUTHORITIES — Continued Page Minnesota v. Mille Lacs Band of Chippewa Indi- ans, 526 U.S. 172 (1999)...............ccccccceeeeeees 6, 7, 8, 10 Montana v. United States, 440 U.S. 147 SE sbediincidesiaiabeinnhsUlnadsiniitanatintbiasiatiariiriaciciatiaminenal 5,9, 11 Nebraska v. Parker, 136 S. Ct. 1072 (2016).......... 10, 12 Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 RE OR RE Ee SR aR A 17 Partmar Corp. v. Paramount Pictures Theatres IIIT iccnsiniatiinertecninieniehiniininmatigesieindatictemassechiieiiataniiidiaiinsiaeany 17 Rodriguez de Quijas v. Shearson/American Ex- press, Inc., 490 U.S. 477 (1989)..............cccccccccceceeeeees 8 S. Pac. Ry. v. United States, 168 U.S. 1 (1897)............ 13 Shellong v. INS, 805 F.2d 655 (7th Cir. 1986)............ 15 Taylor v. Sturgell, 553 U.S. 880 (2008)......................... 4 United States v. Moser, 266 U.S. 236 (1924) .......... 9, 16 United States v. Title Ins. & Tr. Co., 265 U.S. 472 RECESS Se he 15 Woods v. Interstate Realty Co., 337 U.S. 535 he TET AEE SO A ay SO asa ae ee ON ae 15 STATUTES Vv TABLE OF AUTHORITIES ~— Continued Page OTHER AUTHORITIES Restatement (Second) of Judgments §27 cmt. Resets 14 Restatement (Second) of Judgments §28 cmt. c.........- 9 1 INTEREST OF AMICI STATES The Amici States, like most litigants, have an in- terest in the finality of judgments, and correspondingly in the maintenance of doctrines that preclude repeated attacks by losing parties on settled matters of law. These interests reach their apex when the matter at hand implicates the scope of Amici States’ sovereign authority within their borders. This is especially true in the realm of State-Tribal relations, where the loca- tion of a reservation boundary, the nature of a trust land acquisition, or the meaning of a 19th century treaty can have profound, real-world consequences as to who has the power to tax, who has the power to reg- ulate, and who has the power to prosecute criminal of- fenses. Put simply, which sovereign has the power to gov- ern over particular subject matter within a particular geographic area matters greatly to government as well as to the governed. More specifically for this case, the finality and stability of what the federal judiciary has said the law is regarding that power matters at least as much. To that end, Amici States have a substantial interest in this Court’s reaffirmation of the important doctrine of issue preclusion and in its limitation on ex- pansive new exceptions to the doctrine. This case concerns the preclusive effect of the fed- eral judiciary’s judgment on a settled issue of federal law: whether under an 1868 treaty the Crow Tribe cf Indians retain unrestricted hunting rights in the “un- occupied lends of the United States,” notwithstanding the Tenth Circuit's conclusive 1995 holding to the con- trary. It arises from Wyoming's misdemeanor prosecu- tion of Petitioner, a Crow Tribe member, for elk hunting in the Bighorn Nationa! Forest in violation of Wyoming's game laws. Despite the quintessentially local nature of the underlying facta, Petitioner's arguments in resistance to the issue preclusion doctrine as a bar to his affirm. ative criminal defense would have consequences far beyond tribal hunting rights in northern Wyoming. Pe titioner invites the Court to import into the federal common law a broad—-and heretofore unrecognized — automatic exception to issue preclusion where there has been “a change in the applicable legal context.” This ill-defined, manipulable standard would incentiv- ize losing parties to continually innovate new means of relitigating settled issues, even where, as here, the in- tervening “change” is dubious at best. Amici States have an interest in this Court's rejec- tion of these arguments. Assuming the Court remains assured that its grant of certiorari was appropriate, the Court should use this case as an opportunity Lo re- affirm its precedents concerning the doctrine of issue preclusion, clarify the limited nature of the exceptions to that doctrine, and repudiate Petitioner's expansive and destabilizing arguments to the contrary. ° 3 Petitioner proceeds from the false premise that his affirmative defense regarding tribal hunting rights is not precluded by the federal courts’ decades-old judg. ment that those hunting rights terminated. See Crow Tribe of Indians v. Repsis, 73 F.3d 982, 992 (10th Cir. 1995), cert. denied, 517 U.S. 1221 (1996). In resisting issue preclusion, Petitioner argues for a dramatic ex- pansion of a narrow exception to the doctrine where there has been a “change in the applicable legal con- text.” Not only does Petitioner's fact-bound claim not meet the requirements for this limited exception, his desired expansion of the exception could lead to ma- nipulation as losing parties maneuver to identify some precedent cited in the adverse opinion that appears to rest on reasons rejected in some other line of “interven. ing” decisions by the Supreme Court. Amici States aim to complement their sister State Wyoming’s own argu. ments by pointing out how Petitioner's broad concep- tion of this exception would undermine finality and stability in an area of law—State-Tribal relations — where jurisdictional certainty is of paramount im- portance. Amici States will first summarize the well-estab- lished principles of issue preclusion and why the Wyo- ming state courts properly applied that doctrine below. Amici States will then demonstrate how Petitioner's overbroad, Restatement-based conception of the “change in the applicable legal context” exception to is- sue preclusion has not been recognized by this Court, would undermine the principle of judgment finality, 4 and, as illustrated by the facts of this case, would have destabilizing consequences on important jurisdictional! questions in the sphere of State-Tribal relations. * |. The Wyoming state courts properly ap- plied the doctrine of issue preclusion as a bar to Petitioner's affirmative criminal de- fense. The doctrine of issue preclusion is designed to pre vent parties who lose in one tribunal to “shop around for another.” B & B Hardware, Inc. v. Hargis Indus, Inc., 136 8. Ct. 1293, 1298-99 (2015). When two differ. ent tribunals are asked to decide the same issue, th» second tribunal must usually follow the decision of the first tribunal. /d. Issue preclusion bars “successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judg- ment.” Taylor vu. Sturgell, 6563 U.S. 880, 892 (2008) (ci- tation omitted). The principle behind issue preclusion is straightforward: “\o|nce a court has decided an issue, it is ‘forever settled as between the parties."” B & 2B Hardware, 136 8. Ct. at 1302-03 (citing Baldwin uv. lowa State Traveling Men's Asan., 283 US. 522, 525 (1931)). Under the doctrine, once an issue is directly determined by a court of competent jurisdiction, that determination is conclusive and cannot be disputed in subsequent suits between the same parties or their 5 privies. Montana vu. United States, 440 US. 147, 153 (1979). Issue preclusion protects parties from the expense and vexation of multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent verdicts. B & B Hardware, 135 8. Ct. at 1302 (citing Montana, 440 U.S. at 153-54). Indeed, the goal of minimizing incon- sistent verdicts “encourage|s| reliance on adjudica- tion.” Allen uv. McCurry, 449 US. 90, 94 (1980). Moreover, issue preclusion “promote|s| the comity be- tween state and federal courts that has been recog- nized as a bulwark of the federal system.” Allen, 449 US. at 96. Issue preclusion is “central to the purpose for which civil courts have been established, the conclu. sive resolution of disputes within their jurisdictions.” Montana, 440 U.S. at 153 (emphasis added). Simply put, “a losing litigant deserves no rematch after a de- feat fairly suffered.” Astoria Fed. Sav. & Loan Assn. v. Solimino, 601 U.S. 104, 107 (1991). Here, although Petitioner and his Amici are un- derstandably eager to skip past the critical threshold question of issue preclusion, the application of the doc- trine is straightforward on a fair and complete reading of the line of relevant decisions. As Respondent has ably and comprehensively described, and as Amici States will briefly summarize, the decided nature of the termination of the Crow Tribe's off-reservation hunting rights is clear. Twenty years after Repsis, Petitioner (and, indeed, the Crow Tribe itself) seeks a rematch on precisely the legal issue his Tribe lost in 1996. Petitioner argues that the doctrine of issue preclusion does not bar him from relitigating off-reservation Wyoming hunting rights because Repsis lacks preclusive effect due to a “change in the applicable legal context.” The basis of this argument is that Repsis relied exclusively on Race Horse and this Court effectively overruled Race Horse in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). Petitioner argues that Mille Lacs “thoroughly repudiated” Race Horse, the case on which Repsis relied, and that Petitioner should, therefore, be permitted to relitigate Repsis itself. Id. But Mille Lacs did not overrule the relevant part of Race Horse on which Repsis relied. All parties agree that this Court rejected the doctrine of “equal footing” that Race Horse relied on in holding that Indian hunt- ing rights are irreconcilable with state sovereignty. Mille Lacs, 526 U.S. at 206. Critically, however, this Court continued: [tlhe equal footing doctrine was only part of the holding in Race Horse, however. We also announced an alternative holding: The treaty rights at issue were not intended to survive Wyoming's statehood. Mille Lacs, 526 U.S. at 206. Mille Lacs did not explicitly overrule this alternative holding in Race Horse. Mille Lacs acknowledged that Race Horse con- cluded that the rights in the treaty at issue in Race 7 Horse were not intended to survive statehood. Id. This Court then contrasted the treaty rights at issue in Race Horse, which had a “fixed termination point,” with the Mille Lacs treaty, which had no fixed termi- nation and did not tie the duration of rights to the oc- currence of a clearly contemplated event. Mille Lacs, 526 U.S. at 207. It further explained that the treaty at issue in Race Horse “contemplated that the rights would continue only so long as the hunting grounds re- mained unoccupied and owned by the United States” and the “happening of these conditions was ‘clearly contemplated’ when the Treaty was ratified.” Jd. at 207 (quoting Race Horse, 163 U.S. at 609). But the Court never explicitly overruled its second holding in Race Horse. The Mille Lacs Court held that courts should determine whether the rights granted in a treaty were intended to terminate upon the happen- ing of a clearly contemplated event, such as in Race Horse. At worst, this Court only refused to extend the holding in Race Horse beyond the precise treaty lan- guage present in Race Horse—the same language in Repsis and here. The Wyoming state courts thus properly found that Race Horse's second holding re- mained good law since this Court had not overruled it, and that it precluded Petitioner from relitigating the ultimate holding in Repsis. This Court has long taken the position that lower courts are not to conclude that its recent cases have impliedly overruled earlier precedent: “\i)f a precedent of this Court has direct application in a case, yet ap- pears to rest on reasons rejected in some other line of 4 decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the pre- rogative of overruling ita own decisions.” Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 486 (1989)). The facta, circumstances, and procedural posture of the present litigation illustrate the wisdom behind this Court’s opinion in Agostini. Petitioner is asking this Court to greatly expand the exception to the doc- trine of issue preclusion that limits issue preclusion due to a “change in the applicable legal context. See Bobby v. Bies, 5666 U.S. 826, 834 (2009). Petitioner is asking the Court to hold that parties are not bound by issue preclusion when the binding decision was based on case precedent that may have been subsequently questioned, but not overruled. This runs contrary to the principle of Agostini and is flatly inconsistent with what this Court actually held in Mille Lacs. Il. This Court has never recognized the broad exception to issue preclusion urged by Pe- titioner. It is upon the intersection of Repsis and Mille Lacs that Petitioner bases his primary—and farthest-reach- ing—argument for expanding the recognized excep- tions to issue preclusion “where there has been a change in the applicable legal context.” Pet. Br. 46-48. Petitioner bases his argument on Bobby vu. Bies, 5566 U.S. 825, 834 (2009), where the Court cited a comment 9 from the Restatement (Second) of Judgments that “an intervening change in the relevant legal climate may warrant reexamination of the rule of law applicable as between the parties.” Restatement (Second) of Judg- ments §28 cmt. c. Bies does not appear to represent the Court’s for- mal adoption of the Restatement’s broad exception to issue preclusion. This is particularly true, as Respond- ent has ably demonstrated, in light of the Court’s long- standing articulation of a related—but justifiably nar- row—standard for when issue preclusion should be withheld given an intervening development in the law: Where, for example, a court in deciding a case has enunciated a rule of law, the parties in a subsequent action upon a different demand are not estopped from insisting that the law is otherwise, merely because the parties are the same in both cases. But a fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent action, even though the determination was reached upon an erroneous view or by an erroneous application of the law. Montana, 440 U.S. at 162 (emphasis original) (quoting United States v. Moser, 266 U.S. 236, 242 (1924)). This standard defeats issue preclusion only “for ‘unmixed questions of law’ in successive actions involving sub- stantially unrelated claims.” /d. The exception as set out in Montana and Moser is superior in that it provides more concrete guidance to courts and litigants as to the circumstances in which a 10 prior final judgment will not enjoy the benefit of issue preclusion. Petitioner's Restatement-based alterna- tive, on the other hand, would trigger the exception whenever a disappointed party can imagine a change in the legal “context,” vague though that term may be. Here, the consequences of such a malleable standard are obvious, given that two of the freestanding reasons for the Repsis court’s holding remained categorically valid even after Mille Lacs overruled the first reason. This should be a circumstance where issue preclusion still unquestionably applies based on the two undis- turbed reasons in the prior case. Here, there is no “unmixed question of law.” Inter- pretation of the 1868 treaty is necessarily a fact-inten- sive endeavor, as the state court recognized in its careful, weil-reasoned decision to apply issue preclu- sion. Pet. App. 25. This is not surprising, since the over- whelming majority of cases determining State-Tribal jurisdictional disputes based on 19th century treaties will involve mixed questions of fact and law. See, e.z., Nebraska v. Parker, 136 S. Ct. 1072 (2016) (fact-inten- sive analysis in reservation diminishment context); Hagen v. Utah, 510 U.S. 399 (1994) (same). Were this Court to allow Petitioner to relitigate Repsis, no judgment would be safe. Every final judg- ment would be at risk of losing its preclusive effect between the parties and their privies the moment the underpinning legal authority can be called into question through mere reference to some intervening decision that criticizes a single component of the oth- erwise preclusive decision. This would invite relentless 11 litigation of settled issues until the non-prevailing party prevails, leading to abusive, vexatious and ex- pensive litigation, waste of judicial resources, incon- sistent results, and inability to rely on any adjudication. See B & B Hardware, Inc., 135 S. Ct. at 1298-99, 1302; Montana, 440 U.S. at 153. States and Tribes must be able to rely on past de- cisions and have finality between each other, particu- larly when such decisions directly implicate public safety considerations by deiineating which sovereign may exercise law enforcement over a certain area, and the scope of the same. The alternative would breed ju- risdictional chaos. Not only would Amici States be sub- ject to litigation of previously decided issues— including, in all likelihood, on core jurisdictional issues stemming from century-old treaties decided (and re- lied on) for decades—they would be concerned with fo- rum-shopping, including for relitigation of State-Tribal jurisdictional matters in non-federal forums _ill- equipped to resolve such issues. To be clear, Amici States do not accuse Petitioner of forum-shopping. But without jurisdictional cer- tainty, individual parties could forum shop to relitigate such issues in forums that are ill-suited to that work. For example, Wyoming Circuit Courts, with original ju- risdiction in all misdemeanor cases, Wyo. Stat. Ann. § 5-9-129. Like their counterparts in many other States, they are courts of limited jurisdiction with sim- plified rules to provide limited, focused discovery and expedited trial dates. Relitigating significant issues 12 regarding treaty-based State-Tribal jurisdictional boundaries during misdemeanor criminal prosecutions in such courts would tax judicial resources and in- crease the possibility of inconsistent decisions. Moreover, and without at all casting doubt on the capacity of lower State courts, such courts are simply not the appropriate venues for the resolution of such significant and inherently federal issues. A strong is- sue preclusion doctrine serves as a safeguard against the relitigation of federal treaty questions in misde- meanor-level State courts, at least where, as here, the federal courts have already spoken. That is desirable from a policy perspective. Jurisdictional clarity and consistency would be ill-served if, for example, the is- sues decided by this Court several terms ago in Parker, 136 S. Ct. 1072, were continually relitigated in misde- meanor prosecutions in Nebraska county courts. The need for jurisdictional certainty is particu- larly true in the context of State-Tribal criminal jurisdiction. For example, this term, in Carpenter v. Murphy, No. 17-1107 (U.S.), this Court will resolve a jurisdictional boundary dispute covering all of east- ern Oklahoma and 1.8 million residents. However the dispute is resolved, it should be expected that both the State of Oklahoma and the Creek Nation respect the finality of the decision. It should also be expected that future clarification of issues addressed in Car- penter v. Murphy not be used as a “change in the applicable legal context” to undermine the finality of whatever decision is reached. Once a jurisdictional boundary is determined, that determination should 13 be final. Yet Petitioner's position would invite every criminal defendant in a successive prosecution to relitigate in state court the federal court’s determina- tion of the underlying jurisdictional boundaries. Pet. Br. 57. Such vexatious relitigation of settled jurisdic- tional issues would place no value on finality. Each successive prosecution should not spawn a renewed op- portunity to undo the jurisdictional boundaries settled by the last. The general rule of issue preclusion “is demanded by the very object for which civil courts have been es- tablished.” S. Pac. Ry. v. United States, 168 U.S. 1, 49 (1897). The doctrine of issue preclusion protects the ju- dicial system’s vital interest in the finality of judg- ments. Allowing Petitioner to expand the recognized exceptions to the issue preclusion doctrine in order to relitigate Repsis would undermine this vital interest. Ill. The Tenth Circuit’s alternative basis for affirmance is independently preclusive. Repsis provided an additional “alternative basis for affirmance of the district court’s dismissal of the Tribe’s action” that was not based on Race Horse. Rep- sis, 73 F.3d at 993. Repsis held that, at the time the 1868 treaty was executed, the land that is now the Big- horn National Forest was unoccupied and open for set- tlement. Jd. However, 11 years later when Congress created the Bighorn National Forest, it expressly man- dated that national forest lands were to be regulated for environmental purposes and “were no longer avail- able for settlement.” Jd. Specifically, people could no 14 longer “timber, mine, log, graze cattle, or homestead” on national forest land without federal permission. /d. Accordingly, the Tenth Circuit held that the Crow Tribe had no right to hunt in the Bighorn National For- est because those lands are “occupied,” since the treaty only reserved off-reservation tribal hunting rights to “unoccupied” lands. /d.; see also Pet. App. 45 (1868 treaty text). Petitioner contends that the Tenth Circuit’s hold- ing that the Bighorn National Forest land is “occupied” should not be given preclusive effect. Pet. Br. 50. His primary argument on this point, and the one Amici States will address, again urges the adoption of an is- sue preclusion exception drawn from a comment to the Restatement (Second) of Judgments that this Court has never recognized. Specifically, he argues that if a “judgment by a court of first instance” relies on “deter- minations of two issues” that independently support the result, then the judgment is not preclusive on ei- ther issue. Pet. Br. 50 (citing Restatement (Second) of Judgments § 27 cmt. i.). This position is contrary to this Court’s precedent. This Court has held “where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, the ruling on neither is obiter, but each is the judgment of the court and of ' The Wyoming state courts in Petitioner's case recognized that the “Repsis court also alternatively held that the treaty rights were no longer valid, because the creation of the Big Horn National Forest resulted in the occupation of the land.” Pet. App. 22, 33 (internal quotation omitted). 15 equal validity with the other.” United States v. Title Ins. & Tr. Co., 265 U.S. 472, 486 (1924); see also Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949) (“where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum”). Notably, not only has this Court not embraced this exception, it has been rejected by at least six circuits. The Second, Third, Seventh, Ninth, Eleventh, and D.C. Circuits have generally followed the traditional view that independently sufficient alternative findings that have been litigated and decided should be given pre- clusive effect. See Ass’n of Battery Recyclers v. EPA,716 F.3d 667, 673 (D.C. Cir. 2013); Jean Alexander Cosmet- ics, Inc. v. L’Oreal USA, Inc., 458 F.3d 244, 255 (3d Cir. 2006); Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1402 (7th Cir. 1987); Shellong v. INS, 805 F.2d 655, 658-59 (7th Cir. 1986); Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 45 (2d Cir. 1986), cert. de- nied, 480 U.S. 948 (1987); Deweese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir. 1982); In re West- gate-California Corp., 642 F.2d 1174, 1176-77 (9th Cir. 1981). In so doing, these courts relied on the general principles of issue preclusion, including finality and promoting judicial economy: “la]pplying issue preclu- sion to independentiy sufficient alternative findings furthers the basic objectives of the doctrine.” See, e.g., L’Oreal USA, 458 F.3d at 254. In support of applying the Restatement (Second) of Judgments comment as a new exception, Petitioner contends that a court’s determination of an alternative basis may not have been as carefully or rigorously considered. Pet. Br. at 50. This argument gives woeful short shrift to the Tenth Circuit's analysis, which con- sisted of an entire substantive section of its opinion. Repsis, 73 F.3d at 993. Hardly the “passing” conclusion described by Petitioner. Pet. Br. 51. Litigants should not assume that courts would give any less considera. tion to an independently sufficient basis to support its judgment. L’Oreal USA, 458 F.3d at 254. Courts are reasonably expected to craft findings that are the prod. uct of careful judicial reasoning, and the Tenth Circuit did so in Repsis. Id. Next, Petitioner contends that the Tenth Circuit's alternative basis is legally and factually wrong and in- consistent with other court decisions. Pet’r Br. at 51. But even if the Tenth Circuit did err, this would not tion of wrong decisions to the same degree as correct ones. B & B Hardware, Inc., 135 S.Ct. at 1308-09; see also United States v. Moser, 266 U.S. 236, 242 (1924) (“{A] fact, question or right distinctly adjudged in the original action cannot be disputed in a subsequent ac tion, even though the determination was reached upon an erroneous view or by an erroneous application of law.”). The Tenth Circuit in Repsis resolved the same is- sue sought to be relitigated here—.c, that the 1868 treaty hunting rights were no longer valid due to the creation of the Bighorn National Forest resulting in “occupation” of the land. This resolution was essentia! to the decision as an independently sufficient alterna. tive basis that the treaty rights were no longer valid. 17 Title Ina. & Tr. Co., 265 U.S. at 486; L'Oreal USA, 458 F.3d at 255. To permit relitigation of alternative find- ings would “eviscerate a great number of judicial de- terminations that were the products of costly litigation and careful deliberation.” L'Oreal USA, 458 F.3d at 255. Further establishing that the Tenth Circuit's alter. native holding was essential to the judgment, is that it was capable of being appealed and that the Crow Tribe actually petitioned for certiorari on this issue. See Pet. Br. at 7, 22, 24, Supreme Court of the United States docket no. 95-1560; see Partmar Corp. v. Paramount Pictures Theatres Corp., 347 U.S. 89, 100,74 8. Ct. 414, 420, 98 L. Ed. 532 (1954) (“It is only when a finding of law or fact is not necessary for a decree that the pre- vailing party may not appeal and the finding does not form the basis for collateral estoppel.”). Petitioner, as a member of the Crow Tribe, should not be permitted to litigate, for the second time, the precise issue litigated by the State of Wyoming and Crow Tribe and resolved by the Tenth Circuit in Wyo- ming’s favor. This Court should hold that Petitioner is precluded from relitigating whether the creation of the Bighorn National Forest rendered the land “occupied,” thereby terminating the Crow Tribe's treaty rights to hunt those lands in violation of Wyoming's game laws. States must be able to rely on past decisions and the propriety of issue preclusion to protect against the burden of needless and vexatious relitigation of settled jurisdictional issues. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 (1979). “Denying preclusive effect to a finding that would support a court» judgment merely because the case was disposed of on other grounds as well would result in the inefficient use of private and public litigation re- sources.” L'Oreal USA, 458 F.3d at 253. Litigants, par- ticularly States that are often litigants to cases involving the clash of sovereign and jurisdictional in- terests, should not be denied preclusive effect of past decisions simply because the ultimate holding was based on multiple freestanding reasons. To hold other wise would force defendants to gamble on only one le- gal theory in defense or only be entitled to issue preclusion on simple cases. See L'Oreal USA, 458 F.3d at 255 (“under the approach of the Second Restate- ment, the judicial findings in nearly any complex case would be unlikely to preclude subsequent relitigation of the same issues”). 19 The judgment of the District Court of Wyoming should be affirmed. Respectfully submitted, ADDITIONAL COUNSEL Dernex Scumipvr Attorney Genera! State of Kansas Jevy LANDRY Attorney Genera! State of Louisiana WAYNE STENEHJEM Attorney General State of North Dakota Marty J. JACKLEY Attorney Genera! State of South Dakota KEN PAXTON Attorney Genera! State of Texas --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0790%3A25. Public record. Not legal advice.