Bighorn Forest hunting case appealed again

SHERIDAN — Clayvin Herrera, the Crow tribal member cited with taking big game animals out of season back in 2014, has again appealed his case, postponing the answers to several questions regarding tribal hunting rights in and around the Bighorn National Forest.

Herrera was cited for killing an elk in the Bighorn National Forest out of season in 2014 and as a result was sentenced to pay more than $8,000 in fines and court fees and have his hunting privileges suspended.

Herrera didn’t deny taking the elk, but questioned the illegality of the action. He has argued an 1868 treaty between the Crow and U.S. government allows members of the tribe to hunt “unoccupied” lands. The state of Wyoming argued that the treaty rights were nullified when Wyoming became a state and that the Bighorn National Forest doesn’t constitute “unoccupied” lands.

The appeal made its way to the U.S. Supreme Court, which in 2019 issued its opinion supporting tribal hunting rights but left two primary questions undecided — whether the forest constitutes “occupied” land and whether the state has the ability to enforce regulations for conservation purposes.

On remand, though, Sheridan County Circuit Court Judge Shelley Cundiff didn’t directly address those issues, but instead ruled those issues had already been decided and therefore should not be reexamined, a term known as issue preclusion.

In June 2020, Cundiff issued a decision in the case, stating the issue of whether the Bighorn National Forest was occupied had been settled in prior court cases — in particular, Crow Tribe of Indians v. Repsis, which had similar circumstances to Herrera’s case. Sheridan County Circuit Court again upheld that the forest is occupied and upheld the Wyoming Game and Fish Department’s ability to regulate tribal hunters based on the necessity of conservation.

While Herrera’s attorneys did file notice of appeal, which moves the case into the 4th Judicial District Court from Sheridan County Circuit Court, no additional briefings indicated on what grounds they intended to appeal.

As the case moves forward in appeal, Judge John Fenn may decide the outstanding legal issues around the conservation necessity and occupied land himself or he may send the case back and ask for additional finding of fact.

When asked to discuss current ways the state manages wildlife population, representatives from the Wyoming Game and Fish Department would not comment due to the ongoing litigation.

Jason Mitchell, a recent University of Wyoming College of Law graduate and former editor-in-chief of the Wyoming Law Review, noted a number of issues remain in the decisions passed down from the U.S. Supreme Court.

Mitchell wrote an article on the case for the Wyoming Law Review in 2019, but noted the key aspects of the case change over time.

Initially, Mitchell said, the question centered around the validity of the federal treaty, which granted broad hunting rights to the Crow Tribe. The case has now shifted to issues of what constitutes “occupied” land and the state’s rights to manage conservation.

“These unresolved issues matter to both Wyoming and the Crow Tribe because the answers to these questions will determine how tribal hunting may be regulated in the future,” Mitchell continued. “For now, there are still ambiguities which preclude Wyoming from effectively regulating game as well as ambiguities for Tribe members who are probably uncertain of their specific hunting rights. Essentially, the courts have much to resolve before either Wyoming or the Crow Tribe can be certain their future actions are legal.”

More than six years after the case originated, representatives from both the state and the defense seem certain the case will continue — potentially for several more years.

“I imagine it is frustrating for both the state and the tribe to see this issue drag on,” Mitchell said. “At the same time, I think both parties realize that they must cover all their bases in order to avoid conflict in the future, which is why this case is important.

“Both parties have legitimate interests here, and therefore both parties deserve full review by all courts involved, both state and federal,” Mitchell continued. “Finality is an important goal for the law, but unfortunately a complex case like Herrera requires time. The good news is that a final decision should allow both the Crow Tribe and Wyoming to avoid conflict in the future, which should be important for both parties.”