Elk case returns to Wyoming after Supreme Court ruling

SHERIDAN — Judge John Fenn took arguments under advisement during a status conference for Herrera v. Wyoming in 4th Judicial District Court Friday.

The case stems from an incident in January 2014 when Clayvin Herrera, a Crow tribal member, allegedly killed elk on public land out of season in Sheridan County. Three Wyoming judicial rulings found Herrera guilty.

In May, however, the U.S. Supreme Court issued a 5-4 decision affirming Herrera’s right to hunt on the land based on an 1868 treaty between the United States and representatives of the Crow Tribe.

The treaty ratified an agreement in which the Crow ceded control of lands in present-day Montana and Wyoming to the United States in exchange for the right “to hunt on the unoccupied lands of the United States so long as game may be found thereon.”

The high court’s decision vacated a ruling by Wyoming’s 4th Judicial District Court that declared the treaty expired when Wyoming became a state in 1890 and remanded the case back to the lower court for further proceedings. Though the Supreme Court ruled the 1868 treaty grants Herrera certain hunting rights, it also left open the possibility that the state could prosecute him for taking the elk.

Justice Sonia Sotomayor — who wrote the majority opinion for the Supreme Court — noted that the decision declared the Bighorn National Forest is not categorically occupied, which does not mean that all of the areas of the forest are unoccupied.

Wyoming can still argue that the land Herrera hunted on “was used in such a way that it is ‘occupied’ within the meeting of the 1868 Treaty,” Sotomayor wrote.

The decision also gives Wyoming the opportunity to argue that regulating Crow hunting rights is necessary to the state’s conservation efforts.

Fenn suggested the case would have to be remanded to circuit court should the state decide to pursue either of the issues. There is not currently a sufficient record of evidence related to either of those issues, he said, and that record would have to be established in circuit court.

Both Herrera’s Attorney Kyle Gray and Sheridan County Deputy Prosecuting Attorney Christopher LaRosa — representing the state — agreed that the facts related to the two arguments Supreme Court identified would have to be established in circuit court.

LaRosa, however, proposed Fenn keep the case in district court based on a separate issue.

He contended Fenn could rule on whether issue preclusion — a legal doctrine that prevents an issue from being re-litigated once it has been decided in a previous case — applied to Herrera’s case.

LaRosa pointed to the 1995 10th Circuit Court Case Crow Tribe v. Repsis — which concluded “the Tribe’s right to hunt which was reserved in the treaty was repealed by Wyoming’s admission to the Union” — as the instance where the issue had already been litigated.

If that argument were to hold, Herrera would be precluded from mounting a defense based on the 1868 treaty. And if that defense was precluded, LaRosa said the state would save the “massive” judicial resources it would expend should the case be remanded to circuit court.

Gray said the Supreme Court’s decision was clearly sending two issues back for the court to consider. Further, she said the findings in the Repsis decision no longer applied based on a later decision.

Fenn did not issue a decision and said he would inform attorneys whether he would ask for additional briefing on the case or remand it to circuit court.