Herrera v. State
| Decision Date | 25 April 2017 |
| Docket Number | CV 2016-242 |
| Parties | CLAYVIN HERRERA, Appellant, v. STATE OF WYOMING, Appellee. |
| Court | U.S. District Court — District of Wyoming |
CERTIFIED COPY
Appeal from Fourth Judicial Circuit Court, Sheridan County, Wyoming
Representing Appellant:
Kyle Gray & Steven Small of Holland & Hart, Billings, Montana; Hadassah Reimer of Holland & Hart, Jackson, Wyoming. Argument by Ms. Gray.
Representing Respondent:
Christopher LaRosa, Deputy County and Prosecuting Attorney, Sheridan, Wyoming.
Representing the Crow Tribe of Indians, Amicus Curiae in Support of Clayvin Herrera:
Andrew A. Irvine, Wilson, Wyoming; Dennis M. Bear Don't Walk, Crow Agency, Montana.
The above-entitled matter came before the Court on Appellant, Clayvin Herrera's appeal from the Order Denying Motion to Dismiss, Striking Evidentiary Hearing and Granting State's Motion in Limine, entered on October 16, 2015, the Order After Pretrial Conference, entered on April 18, 2016, and the Judgment and Sentence entered by the Fourth Judicial Circuit Court on April 29, 2016. Having reviewed the record, the briefs of the parties, and being otherwise fully advised, the Court AFFIRMS the circuit court's orders and the Judgment and Sentence.
The Appellant frames the pertinent issues as follows:
The Appellee frames the pertinent issues as follows:
The Court held oral arguments in this matter, and it raised an additional question:
I. Do the doctrines of collateral estoppel, issue preclusion, or res judicata apply to preclude the Appellant from relitigating the validity of the off-reservation treaty hunting right?
Herrera is an enrolled member of the Crow Tribe and a resident of St. Xavier, Montana, which is located on the Crow Reservation. In January 2014, Herrera and several other tribal members decided to hunt for elk on the Crow Reservation. They spotted several elk on the Reservation in the vicinity of Eskimo Creek. At some point, the elk crossed a fence, leaving the Crow Reservation and entering into the Big Horn National Forest in the State of Wyoming. Herrera and the others crossed the fence into Wyoming and continued to track the elk. They shot three bull elk and took the meat back with them to Montana. The elk were taken without a license and during a closed season. Herrera was cited with two misdemeanors, Taking an Antlered Big Game Animal Without a License or During a Closed Season, a violation of W.S. §23-3-102(d), and Accessory to Taking Antlered Big Game Animal Without a License or During a Closed Season, a violation of W.S. § 23-6-205.
On July 2, 2015, Herrera filed a Motion to Dismiss Under the Supremacy Clause of the United States Constitution and the Fort Laramie Treaty of 1868. Herrera did not deny taking the elk, but he asserted that he had a right to hunt where and when he did under Article 4 of the Treaty with the Crow, 1868 ("Crow Treaty"). He argued that this treaty gave the Crow Tribe the right to hunt off of the reservation on the "unoccupied lands of the United States" that fell within territory that had been ceded by the Crow, and that this treaty right was still valid and preempted state law. The State filed a Response on August 6, 2015, and a Supplemental Response with exhibits on August 20, 2015. The State also asked for an evidentiary hearing so the State could offer evidence in support of its position, and it filed a Motion in Limine re Affidavits seeking to strike certain affidavits that had been filed with Herrera's motion. On August 20, 2015, the State filed a Motion in Limine re Treaty Rights, asking the trial court to prohibit Herrera from making reference to the asserted treaty hunting right at trial, if the circuit court determined that the treaty rights were no longer valid and provided no defense to the State's prosecution.
The circuit court held a status conference on September 1, 2015. It allowed the parties to submit additional briefing and agreed to schedule two evidentiary hearings. The first hearing was set for November 16, 2015, and it was intended to address the meaning of the Crow Treaty and its application to the site where the elk were killed. The second hearing was set for January, and it was set to address whether the State's elk season regulations were reasonable and necessary for the purposes of conservation and therefore would apply to treaty hunters even if the off-reservation hunting right was still valid. On September 18, 2015, Herrera filed a Limited Response to the State of Wyoming's Assertion of Conservation Necessity. The State filed its Second Supplemental Response on October 5, 2015. Both parties submitted numerous exhibits in support of their positions.1 Herrera asserted that no evidentiary hearings were needed, and the court should rule in his favor on all issues as a matter of law.
On October 16, 2015, the circuit court entered its Order Denying Motion to Dismiss, Striking Evidentiary Hearings and Granting the State's Motion in Limine. The trial court held that "[t]his issue of off-reservation treaty hunting rights is indistinguishable from the issue and arguments which were adjudicated in Crow Tribe of Indians vs. Repsis, 73 F.3d 982 (10th Cir. 1995)." The circuit court found itself to be "bound by the Tenth Circuit's holding that Crow Tribe members do not have off-reservation treaty hunting rights anywhere within the state of Wyoming." The circuit court also rejected Herrera's argument that Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), had reversed and rejected the Repsis case as well as Ward v. Race Horse, 163 U.S. 504 (1896), upon which the Repsis decision was based. The circuit court agreed with the Repsis court's decision that the off-reservation treaty hunting right was intended to be temporary and is no longer valid. The circuit could alternatively held that even if the treaty rights still existed, the regulation at issue met the "conservation necessity" standard, and therefore the regulation would apply to treaty hunters. The circuit court then cancelled the evidentiary hearings that had been set, and trial was scheduled for April 27, 2016.
Herrera filed a Petition for a Writ of Review, Writ of Certiorari and Writ of Prohibition with the Wyoming Supreme Court on November 2, 2015. The Wyoming Supreme Court denied the Petition on November 23, 2015. Herrera had also filed a Notice of Appeal with this Court on November 12, 2015. The State moved to dismiss the appeal for lack of jurisdiction. This Court dismissed the appeal on April 5, 2016, finding that the Order Denying Motion to Dismiss, Striking Evidentiary Hearings and Granting the State's Motion in Limine was not a final, appealable order.
Herrera then asked the circuit court to reconsider its position on the State's Motion in Limine re Treaty Rights. The circuit court denied this motion in the Order After Pretrial Conference, issued on April 18, 2016. The circuit court held that at the time of the alleged violations the controlling law was that members of the Crow Tribe had no off-reservation treaty hunting rights, and therefore they had no right to hunt in the Big Horn National Forest in violation of Wyoming law. Herrera sought a stay of his trial from both the Wyoming Supreme Court and the Supreme Court of the United States, but neither stay was granted, and his trial commenced on April 27, 2016.
At trial, because a treaty rights defense was not available, Herrera attempted to argue that he was not off of the reservation when he and his companions took the elk. He admitted that hecrossed the fence, but claimed that the fence did not mark the true boundary between Wyoming and Montana. The State presented evidence that the spot where the elk were killed is within Sheridan County, Wyoming, and that Herrera knew he was off of the reservation when he killed the elk. The jury convicted Herrera of both counts, and he was given concurrent sentences of one (1) year in jail suspended in lieu of unsupervised probation, three (3) years of suspended hunting privileges, and $8,080.00 in fines and court costs. This appeal followed. Herrera is not challenging anything that occurred at his trial. Rather, he is appealing the circuit court's pretrial decisions on the validity of the off-reservation treaty hunting right.
This case raises questions of law which are reviewed de novo, and the Court affords no deference to the trial court's determinations on the issues. See, e.g., Bear Cloud v. State, 2014 WY 113, ¶ 13, 334 P.3d 132, 137 (Wyo. 2014). However, "if the determination of the trial court is correct on any theory it will not be disturbed, or if there exists any legally valid ground appearing in the record, [this Court]...
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