Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 1 of 30
`
`Bailey Bennett Lazzari (Wyoming Bar #7-5915)
`LAZZARI LEGAL
`P.O. Box 525
`Lander, WY 82520
`Ph. (307) 438-6367
`lazzarilegal@gmail.com
` Counsel for Plaintiff Crow Tribe of Indians
`
`Daniel D. Lewerenz (D.C. Bar #1531951; pro hac vice pending)
`NATIVE AMERICAN RIGHTS FUND
`1514 P Street NW, Suite D
`Washington, DC 20005
`Ph. (202) 785-4166
`Fax (202) 822-0068
`lewerenz@narf.org
` Counsel for Plaintiff Crow Tribe of Indians
`
`
`
`
`
`The CROW TRIBE OF INDIANS, et al.,
`
`
`Plaintiffs,
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF WYOMING
`
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`}
`
`v.
`
`
`Chuck REPSIS, Individually; Brian
`NESVIK, Individually, and as Director of
`the Wyoming Game and Fish Department,
`and as Director of the Wyoming Game and
`Fish Commission,
`
`
`Defendants.
`
`
`
`Case No. 92-CV-1002
`
`
`PLAINTIFF’S MEMORANDUM
`IN SUPPORT OF
`MOTION FOR PARTIAL RELIEF
`FROM JUDGMENT
`
`
`
`
`
`
`
`
`
`
`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 2 of 30
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`TABLE OF CONTENTS
`
`
`TABLE OF AUTHORITIES ....................................................................................................... ii
`
`INTRODUCTION..........................................................................................................................1
`
`PROCEDURAL HISTORY ..........................................................................................................2
`
`A. The Repsis Litigation .........................................................................................................3
`
`B. The Herrera Litigation ......................................................................................................5
`
`STANDARD OF REVIEW ...........................................................................................................7
`
`ARGUMENT ..................................................................................................................................9
`
`I.
`
`II.
`
`The Crow Tribe’s Motion is Timely. ................................................................................9
`
`In light of the U.S. Supreme Court’s Herrera decision, this Court should vacate its
`Repsis I judgment pursuant to Rule 60(b)(5) or (b)(6). ................................................11
`
`
`The Crow Tribe is entitled to relief under Rule 60(b)(5). ................................11
`
`A.
`
`B.
`
`In the alternative, the Crow Tribe is entitled to relief under Rule 60(b)(6). ..14
`
`III. This Court should vacate the Tenth Circuit’s Repsis II judgment pursuant to Rule
`60(b)(5) or 60(b)(6). ..........................................................................................................15
`
`
`The Repsis II judgment affirming Repsis I should be vacated. .......................15
`
`A.
`
`Any judgment resulting from the Repsis II alternative holding that the
`Bighorn National Forest was categorically occupied upon its creation should
`be vacated. ............................................................................................................15
`
`B.
`
`
`C.
`
`Any judgment resulting from the Repsis II statement that conservation
`necessity justified State regulation of the Crow Tribe’s off-reservation treaty
`hunting right should be vacated. ........................................................................17
`
`CONCLUSION ............................................................................................................................23
`
`
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`
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`
`i
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 3 of 30
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`TABLE OF AUTHORITIES
`
`
`
`Agostini v. Felton,
`
`521 U.S. 203 (1997) .......................................................................................................8, 13
`
`Antoine v. Washington,
`
`420 U.S. 194 (1975) ...........................................................................................................18
`
`Belt v. Lane,
`
`Civ. No. 74-00387 MCA/ACT, 2014 WL 12796740 (D.N.M. Mar. 24, 2014) ..........10, 11
`
`Brown v. Dietz,
`
`No. 99-2476-JWL, 2005 WL 2175159 (D. Kan. Sept. 7, 2005) ..........................................9
`
`Cashner v. Freedom Stores, Inc.,
`
`98 F.3d 572 (10th Cir. 1996) ............................................................................. 9, 14-15, 17
`
`Crow Tribe of Indians v. Repsis,
`
`866 F. Supp. 520 (D. Wyo. 1994) .............................................................................. passim
`
`Crow Tribe of Indians v. Repsis,
`
`Crow Tribe Mem. Opp. Defs.’ Mot. Summ J. ..................................................................20
`
`73 F.3d 982 (10th Cir. 1995) ..................................................................................... passim
`
`Crow Tribe of Indians v. Repsis,
`
`517 U.S. 1221 (1996) .......................................................................................................1, 5
`
`Cummings v. Gen. Motors Corp.,
`
`365 F.3d 944 (10th Cir. 2004) .............................................................................................9
`
`Dep’t of Game of Wash. v. Puyallup Tribe,
`
`414 U.S. 44 (1973) ................................................................................................. 19, 21-22
`
`Doe v. Briley,
`
`562 F.3d 777 (6th Cir. 2009) .............................................................................................10
`
`Dowdell by Dowdell v. Bd. of Educ. of Oklahoma City Sch., Indep. Dist. No. 89,
`
`8 F.3d 1501 (10th Cir. 1993) .............................................................................................18
`
`Herrera v. Wyoming,
`
`CV 2016-242, slip op. (Wyo. 4th Jud. Dist., Apr. 25, 2017) .............................................12
`
`Herrera v. Wyoming,
`
`Br. of Pet’r, No. 17-532, 2018 WL 4293381 (Sept. 4, 2018) ..............................................5
`
`139 S. Ct. 1686 (2019) ............................................................................................... passim
`
`
`
`ii
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`

`

`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 4 of 30
`
`Horne v. Flores,
`
`557 U.S. 443 (2009) .......................................................................... 8, 12-13, 17, 18-19, 21
`
`Jackson v. Los Lunas Cmty. Program,
`
`880 F.3d 1176 (10th Cir. 2018) .................................................................................7, 8, 21
`
`Klein v. United States,
`
`880 F.2d 250 (10th Cir. 1989) .............................................................................................8
`
`Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wis. v. Wisconsin,
`
`769 F.3d 543 (7th Cir. 2014) .........................................................................................9, 11
`
`Manzanares v. City of Albuquerque,
`
`628 F.3d 1237 (10th Cir. 2010) .....................................................................8, 9, 12, 14, 22
`
`Minnesota v. Mille Lacs Band of Chippewa Indians,
`
`526 U.S. 172 (1999) .............................................................................................................6
`
`Myzer v. Bush,
`
`750 Fed. Appx. 644 (10th Cir. 2018) ...................................................................................9
`
`Ramirez-Zayas v. Puerto Rico,
`
`225 F.R.D. 396 (D.P.R. 2005) .................................................................................8, 13, 15
`
`Rufo v. Inmates of Suffolk Cnty. Jail,
`
`502 U.S. 367 (1992) .......................................................................................................8, 12
`
`Schutz v. Thorne,
`
`415 F.3d 1128 (10th Cir. 2005) .........................................................................................10
`
`Shoshone-Bannock Tribes v. Idaho Fish & Game Comm’n,
`
`42 F.3d 1278 (9th Cir. 1994) .............................................................................................19
`
`Stan Lee Media, Inc. v. Walt Disney Co.,
`
`774 F.3d 1292 (10th Cir. 2014) ................................................................................... 15-16
`
`Standard Oil Co. of Cal. v. United States,
`
`429 U.S. 17 (1976) .......................................................................................................13, 15
`
`Trujillo v. Williams,
`
`No. 4-635 MV/GBW, 2018 WL 6182429 (D.N.M. Nov. 27, 2018) ...................................9
`
`Twelve John Does v. District of Columbia,
`
`841 F.2d 1133 (D.C. Cir. 1988) .........................................................................................18
`
`
`
`
`
`iii
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 5 of 30
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`United States v. Michigan,
`
`653 F.2d 277 (6th Cir. 1981) ....................................................................................... 19-20
`
`United States v. Oregon,
`
`718 F.2d 299 (9th Cir. 1983) .............................................................................................20
`
`United States v. Oregon,
`
`769 F.2d 1410 (9th Cir. 1985) ............................................................................... 19, 21-22
`
`Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,
`
`546 U.S. 394 (2006) .............................................................................................................9
`
`Ward v. Race Horse,
`
`163 U.S. 504 (1896) ...................................................................................................1, 4, 12
`
`Wilkin v. Sumbeam Corp.,
`
`405 F.2d 165 (10th Cir. 1968) ...........................................................................................13
`
`Wyoming v. Herrera,
`
`Case No. CT 2014-2687; 2688 (Wyo. Cir. Ct. 4th Jud. Dist., June 11, 2020)
`
`......................................................................................................................7, 10, 16 n.7, 19
`
`Yapp v. Excel Corp.,
`
`186 F.3d 1222 (10th Cir. 1999) ......................................................................... 9, 14-15, 17
`
`
`CONSTITUTION
`
`U.S. CONST. art. VI, cl. 2 ...............................................................................................2, 12, 14, 17
`
`U.S. CONST. art. III, § 2 ............................................................................................................... 2-3
`
`
`TREATIES
`
`Treaty between the United States of America and the Crow Tribe of Indians,
`
`15 Stat. 649 (1868) .........................................................................................................2, 12
`
`Treaty of Fort Laramie with Sioux, Etc., 1851,
`
`11 Stat. 749 and 2 Charles Kappler, Indian Affairs: Laws and Treaties 594 (1904) ...........2
`
`Treaty of July 3, 1868,
`
`15 Stat. 673 ..........................................................................................................................3
`
`
`
`
`
`
`iv
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 6 of 30
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`
`RULES
`
`Fed. R. Civ. P. 25(d) ..................................................................................................................1 n.1
`
`Fed. R. Civ. P. 56(a) ................................................................................................................ 17-18
`
`Fed. R. Civ. P. 60(b)(5).................................................................................................... 7-8, 18, 21
`
`Fed. R. Civ. P. 60(b)(6)................................................................................................................ 8-9
`
`Fed. R. Civ. P. 60(c)(1) ....................................................................................................................9
`
`
`OTHER AUTHORITIES
`
`Application for License for a Major Unconstructed Project, FERC No. 10725.000 .....................20
`
`Inst. for the Dev. of Indian Law,
`
`Proceedings of the Great Peace Commission of 1867-1868 (1975) ..................................14
`
`Wyoming Game and Fish Department, Elk Hunting, https://wgfd.wyo.gov/Hunting/Hunt-
`Planner/Elk-Hunting/Elk-Map (last visited Jan. 26, 2021) ..........................................21 n.8
`
`
`Wyoming Game and Fish Department, Sheridan Region Job Completion Report (2019),
`https://wgfd.wyo.gov/WGFD/media/content/PDF/Hunting/JCRS/SN-Region-JCRs-2019-
`Final.pdf .............................................................................................................................21
`
`
`Wyoming Game and Fish Department, U.S. Fish and Wildlife Service Comprehensive
`Management System Annual Report (2020),
`https://wgfd.wyo.gov/WGFD/media/content/PDF/About%20Us/Commission/WGFD_A
`NNUALREPORT_2020.pdf. ................................................................................. 20-21, 22
`
`
`
`
`
`
`
`
`
`
`
`
`
`v
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 7 of 30
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`INTRODUCTION
`
`In 1992, the Crow Tribe of Indians (“Plaintiff” or “Crow Tribe”) came to this Court to
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`
`
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`vindicate its off-reservation treaty hunting rights. Compl. (Dkt. #1).1 This Court, feeling bound
`
`by the U.S. Supreme Court’s decision in Ward v. Race Horse, 163 U.S. 504 (1896), held that the
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`Crow Tribe’s off-reservation treaty hunting rights were extinguished upon Wyoming’s statehood.
`
`Crow Tribe of Indians v. Repsis, 866 F. Supp. 520, 522-24 (D. Wyo. 1994) (“Repsis I”).2 The
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`U.S. Circuit Court of Appeals for the Tenth Circuit affirmed. Crow Tribe of Indians v. Repsis, 73
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`F.3d 982, 987-93 (10th Cir. 1995) (“Repsis II”). The U.S. Supreme Court denied certiorari. 517
`
`U.S. 1221 (1996).
`
`
`
`But that was not the end of the story. In 2014, Clayvin B. Herrera, a Crow Tribe member,
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`along with other Crow Tribe members in his hunting party, took three elk in the Bighorn National
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`Forest. Mr. Herrera was cited for, and convicted of, violations of Wyoming hunting laws. Mr.
`
`Herrera’s case went all the way to the U.S. Supreme Court, which held that the Crow Tribe’s off-
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`reservation treaty hunting right was not extinguished by Wyoming’s statehood. Herrera v.
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`Wyoming, 139 S. Ct. 1686, 1700 (2019). In so doing, the Court also held “that Race Horse is
`
`repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood.” Id.
`
`
`1 Defendants initially included the State of Wyoming, the Wyoming Department of Game and
`Fish, the Wyoming Game and Fish Commission, Chuck Repsis (individually), and Francis Petera
`(both individually and in his capacities as Director of the Wyoming Department of Game and Fish
`and the Director of the Wyoming Game and Fish Commission). Compl. at 1. This Court
`subsequently granted a motion to dismiss the State of Wyoming, the Wyoming Department of
`Game and Fish, and the Wyoming Game and Fish Commission, Order on Defs.’ Mot. Dismiss
`(Dkt. 25), leaving only Defendants Repsis and Petera.
` In accordance with Fed. R. Civ. P. 25(d), and reflected in the caption on this Memorandum,
`Plaintiff has substituted Mr. Nesvik, the present Director of the Wyoming Game and Fish
`Department and Director of the Wyoming Game and Fish Commission, for Mr. Petera.
`2 In addition to dismissing Plaintiffs’ treaty claims, this Court also dismissed Plaintiffs’ claims
`under the Unlawful Inclosures Act. Id. at 524-25. The Crow Tribe does not seek to disturb that
`portion of the judgment.
`
`
`
`1
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 8 of 30
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`at 1697. Today, this Court has the opportunity to relieve the Crow Tribe from the judgment, based
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`on Race Horse, that it entered more than 25 years ago.
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`
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`This is precisely the sort of circumstance that Federal Rule of Civil Procedure 60 was
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`written to remedy. This Court’s Repsis judgment remains in force; but that judgment was based
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`entirely on a case that has been expressly and entirely repudiated by the U.S. Supreme Court,
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`which affirmed the vitality of the very same treaty right that that this Court and the Tenth Circuit
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`found extinct. To allow this Court’s Repsis judgment—which might have been correct when it
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`was made, but now has been unequivocally repudiated by the Supreme Court—to bar the Crow
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`Tribe and its members from legally exercising their off-reservation treaty hunting rights would be
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`a profound injustice. Equity requires that the Crow Tribe, and by extension its members, be
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`relieved from this Court’s Repsis judgment, which this Court should now vacate.
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`
`
`
`
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`PROCEDURAL HISTORY
`
`This case arises from two treaties the Crow Tribe executed with the United States. The
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`first treaty defined the Crow Tribe’s traditional hunting areas. Treaty of Fort Laramie with Sioux,
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`Etc., 1851, 11 Stat. 749 (1851) and 2 Charles Kappler, Indian Affairs: Laws and Treaties 594
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`(1904) (the “1851 Treaty”). The second reserved to the Crow Tribe, among other things, “the right
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`to hunt on the unoccupied lands of the United States so long as game may be found thereon, and
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`as long as peace subsists among the whites and Indians on the borders of the hunting districts.”
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`Treaty between the United States of America and the Crow Tribe of Indians, art. IV, 15 Stat. 649
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`(1868) (the “1868 Treaty”). These treaties, just like Federal statutes and the Constitution itself,
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`are “the supreme Law of the Land,” U.S. CONST. art. VI, cl. 2; therefore enforcement of these
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`
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`2
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 9 of 30
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`treaties touches the very core of Federal judicial authority. Id. art. III, § 2 (judicial power extends
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`to cases arising under ratified treaties).
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`A. The Repsis Litigation
`
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`The Crow Tribe and Crow Tribe member Thomas L. Ten Bear (together “Plaintiffs”),
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`
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`initiated this action in 1992, seeking declaratory judgment that the Crow Tribe’s off-reservation
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`treaty hunting right remained intact, and injunctive relief barring Defendants from enforcing
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`Wyoming hunting and fishing laws and regulations in contravention of those treaty rights. Compl.
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`at 6 ¶¶ b-d; Am. Compl. (Dkt. 28) at 9-10 ¶¶ b-d.
`
`
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`On cross motions for summary judgment, this Court found in favor of Defendants and
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`dismissed Plaintiffs’ claims. Repsis I, 866 F. Supp. 520.3 With regard to the Crow Tribe’s off-
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`reservation treaty hunting right, this Court’s decision was entirely based on Race Horse.4 This
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`Court first found that the factual and legal issues in Race Horse and Repsis were identical:
`
`The facts of the Race Horse case are not distinguishable from the present case. The
`identical treaty language preserving Indian hunting rights relied upon by plaintiffs
`in this case appears at Article 4 of the Treaty of July 3, 1868, 15 Stat. 673, to which
`the Bannock Indians were party.5 The petitioner in the Race Horse case advanced
`the identical contention now made by plaintiffs: that they are not subject to any
`restrictions imposed by Wyoming’s game laws because pursuant to treaty they
`possess the right to hunt on all unoccupied lands owned by the United States and
`located in the state of Wyoming.
`5 Articles 4 of the two treaties are identical except that the Crow
`treaty refers to reservations in the singular and the Fort Bridger
`treaty at issue in Race Horse refers to reservations in the plural.
`
`
`
`
`3 In addition to dismissing Plaintiffs’ treaty claims, this Court also dismissed Plaintiffs’ claims
`under the Unlawful Inclosures Act. Repsis I, 866 F. Supp. at 524-25. The Crow Tribe does not
`seek to disturb that portion of the judgment.
`4 Defendants also argued that the Bighorn National Forest was no longer “unoccupied lands” upon
`which the Crow Tribe could exercise any off-reservation treaty hunting right because “federal
`lands are occupied,” and that conservation necessity justified Wyoming’s regulation of treaty
`hunting. Id. at 522. This Court, holding that the Crow Tribe’s off-reservation treaty hunting right
`was extinguished upon Wyoming’s statehood, did not reach those issues. See generally id.
`3
`
`
`
`

`

`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 10 of 30
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`Repsis I, 866 F. Supp. at 522 & n.5. While acknowledging that Race Horse was, even then, “a
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`much-criticized decision,” id. at 523, this Court ultimately held that it remained good law. Id. at
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`523-24. That left this Court no leeway:
`
`Where the United States Supreme Court has already determined the legal issue
`before this court in Race Horse, where the underlying fact pattern, including the
`treaty language at issue, precisely matches that present in the instant case, and
`where Race Horse has not been expressly rejected or overruled, this court must
`follow the controlling decision.
`
`Id. at 524 (citation omitted). With regard to the Crow Tribe’s off-reservation treaty hunting right,
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`this Court entered judgment based entirely on Race Horse.
`
`
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`Plaintiffs appealed, but the Tenth Circuit affirmed. Repsis II, 73 F.3d 982. Just like this
`
`Court, the Tenth Circuit found Race Horse to be entirely dispositive. First, it noted the identical
`
`language in the treaties at issue in the two cases. Id. at 987 (“Since the Court’s focus was on the
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`interpretation of the emphasized language, it is immaterial whether it appears in the Fort Bridger
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`Treaty of 1869 or the Treaty with the Crows, 1868.”); see also id. at 987 n.2. Next, it noted “the
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`‘irreconcilable conflict’ in Race Horse . . . between the right conferred by the treaty and the act
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`admitting Wyoming into the Union . . . .” Id. at 990 (citing Race Horse, 163 U.S. at 514).
`
`Consequently, the Tenth Circuit held that Race Horse completely controlled: “The Tribe’s right to
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`hunt reserved in the Treaty with the Crows, 1868, was repealed by the act admitting Wyoming into
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`the Union. Race Horse, 163 U.S. at 514. Therefore, the Tribe and its members are subject to
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`Wyoming’s game laws and regulations . . . .” Repsis II, 73 F.3d at 992-93.
`
`
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`Having affirmed this Court’s holding, based on Race Horse, that the Crow Tribe’s off-
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`reservation treaty hunting right was extinguished upon Wyoming’s statehood, the Tenth Circuit
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`articulated an alternative ground for affirmance: that even if the off-reservation treaty hunting right
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`survived Wyoming’s statehood, the Crow Tribe could not exercise that right in the Bighorn
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`
`
`4
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 11 of 30
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`National Forest because “the creation of the Big Horn [sic] National Forest resulted in the
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`‘occupation’ of the land.” Id. at 993. It also stated, in a single sentence appended to its equal
`
`footing holding, that even if the off-reservation treaty hunting right survived Wyoming’s
`
`statehood, “there is ample evidence in the record to support the State’s contention that its
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`regulations were reasonable and necessary for conservation.” Id. at 993 (citation to record
`
`omitted). The Supreme Court denied certiorari. 517 U.S. 1221.
`
`B. The Herrera Litigation
`
`
`In 2014, Mr. Herrera was among a group of Crow Tribe members hunting elk within the
`
`
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`boundaries of the Crow Reservation when they crossed into Wyoming and the Bighorn National
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`Forest. Herrera, 139 U.S. at 1693. While there, Mr. Herrera and two other members of his hunting
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`party shot one bull elk apiece, which they quartered and field dressed before returning to the
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`Reservation with the meat. Id. Mr. Herrera subsequently was charged with, and tried for, taking
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`elk out of season and with being an accessory to the same by others. Id.
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`
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`At trial, Mr. Herrera was not permitted to assert his treaty right as a defense to the charges,
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`and he was convicted on both counts. Id. The State court imposed a one-year jail sentence, which
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`it suspended; ordered Mr. Herrera to pay more than $8,000 in fines and court costs; and suspended
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`his hunting privileges in Wyoming for three years. Id.; Br. for Pet’r, Herrera v. Wyoming, No. 17-
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`532, 2018 WL 4293381 at *15 (Sept. 4, 2018).
`
`
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`Mr. Herrera appealed, but the State appellate court affirmed both his conviction and his
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`sentence. Herrera, 139 S. Ct. at 1694. First, it held sua sponte that the Tenth Circuit’s decision in
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`Repsis II “merited issue-preclusive effect against Herrera because he is a member of the Crow
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`Tribe, and the Tribe had litigated the Repsis suit on behalf of itself and its members. Herrera, in
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`other words, was not allowed to relitigate the validity of the treaty right in his own case.” Herrera,
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`
`
`5
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 12 of 30
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`139 S. Ct. at 1694 (citations to the record omitted). The appellate court also held, in the alternative,
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`and following Repsis II, that even if the Crow Tribe’s off-reservation treaty hunting right survived,
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`Mr. Herrera could not exercise it in the Bighorn National Forest because “the national forest
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`became categorically ‘occupied’ when it was created.” Herrera, 139 S. Ct. at 1694. The Wyoming
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`Supreme Court denied a petition for review. Id.
`
`
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`On petition for certiorari, the U.S. Supreme Court reversed and remanded. First, noting
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`that Race Horse had articulated two different arguments as to why Wyoming’s statehood
`
`extinguished the Crow Tribe’s off-reservation treaty hunting rights, the Court held that Minnesota
`
`v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), “upended both lines of reasoning
`
`in Race Horse.” Herrera, 139 S. Ct. at 1696. Finding it “impossible to harmonize Mille Lacs’
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`analysis with the Court’s prior reasoning in Race Horse,” the Court rejected both Race Horse’s
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`equal footing holding and its holding that treaty rights of a “temporary and precarious” nature
`
`might be impliedly dissolved by statehood:
`
`We thus formalize what is evident in Mille Lacs itself. While Race Horse was not
`expressly overruled in Mille Lacs, it must be regarded as retaining no vitality after
`that decision. To avoid any future confusion, we make clear today that Race Horse
`is repudiated to the extent it held that treaty rights can be impliedly extinguished at
`statehood.
`
`Id. (internal quotations, citation omitted). Having rejected the Race Horse rationale that statehood
`
`itself was inconsistent with treaty hunting rights, the Court found that the Crow Tribe’s off-
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`reservation treaty hunting rights survived intact. Id. at 1698-1700. “Applying Mille Lacs,” the
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`Court wrote, “this is not a hard case. The Wyoming Statehood Act did not abrogate the Crow
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`Tribe’s hunting right, nor did the 1868 Treaty expire of its own accord at that time. The treaty
`
`
`
`6
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 13 of 30
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`itself defines the circumstances in which the right will expire. Statehood is not one of them.” Id.
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`at 1700.5
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`
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`The Court also rejected the State appellate court’s alternative holding, concluding that “the
`
`Bighorn National Forest did not become categorically ‘occupied’ within the meaning of the 1868
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`Treaty when the national forest was created.” Id. at 1700-03. Having reversed on both the
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`substantive and procedural questions, the Court remanded to the State appellate court. Id. at 1703.6
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`
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`On remand, Wyoming has argued that Repsis II, specifically its language concerning
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`categorical occupation of the Bighorn National Forest and conservation necessity, continues to
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`preclude Mr. Herrera from asserting his treaty rights; the State trial court agreed, and upheld the
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`jury verdict against Mr. Herrera. Order on State’s Request for Post-Remand Issue Preclusion,
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`Wyoming v. Herrera, Case No. CT 2014-2687; 2688 (Wyo. Cir. Ct. 4th Jud. Dist., June 11, 2020)
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`(the “2020 Preclusion Order, Plaintiff’s Exh. 1). Mr. Herrera has appealed.
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`
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`
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`STANDARD OF REVIEW
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`Federal Rule of Civil Procedure 60 provides a mechanism by which a party may obtain
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`relief from judgment. Relief under the rule is “an extraordinary remedy and may only be granted
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`in exceptional circumstances.” Jackson v. Los Lunas Cmty. Program, 880 F.3d 1176, 1191-92
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`(10th Cir. 2018).
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`
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`Rule 60(b)(5). Rule 60(b)(5) allows a party to seek relief from judgment where “[i] the
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`judgment has been satisfied, released or discharged; [ii] it is based on an earlier judgment that has
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`5 The Court also held that Repsis II did not preclude Mr. Herrera from asserting his treaty rights
`because Mille Lacs had effected an intervening change in the law. Herrera, 139 S. Ct. at 1697-98.
`6 The Court allowed that, on remand, Wyoming “may press” two alternative defenses to the Crow
`Tribe’s otherwise controlling treaty right: site-specific occupation, and conservation necessity. Id.
`7
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 14 of 30
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`been reversed or vacated; or [iii] applying it prospectively is no longer equitable.” Fed. R. Civ. P.
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`60(b)(5) (brackets added). “Use of the disjunctive ‘or’ makes it clear that each of the provision’s
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`three grounds for relief is independently sufficient” to grant relief. Horne v. Flores, 557 U.S. 443,
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`454 (2009).
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`
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`Under the second provision, relief may be granted “if the Court finds that its determination
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`was based on a prior decision which has been reversed, vacated, or is no longer good law.”
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`Ramirez-Zayas v. Puerto Rico, 225 F.R.D. 396, 398 (D.P.R. 2005). “For a judgment to be ‘based
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`on an earlier judgment’ it is not enough that the earlier judgment was relied on as precedent; rather,
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`it is necessary that ‘the present judgment [be] based on the prior judgment in the sense of res
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`judicata or collateral estoppel.” Manzanares v. City of Albuquerque, 628 F.3d 1237, 1240 (10th
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`Cir. 2010) (quoting Klein v. United States, 880 F.2d 250, 258 n.10 (10th Cir. 1989)).
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`
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`The third provision allows a court to grant relief “if ‘a significant change in either factual
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`conditions or in law’ renders continued enforcement ‘detrimental to the public interest.’” Horne,
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`557 U.S. at 447 (quoting Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 384 (1992)). “A
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`movant may establish that changed factual circumstances warrant modification when . . .
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`‘enforcement of the [judgment] without modification would be detrimental to the public interest.’”
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`Jackson, 880 F.3d at 1201 (quoting Rufo, 502 U.S. at 384).
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`
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`Under Rule 60(b)(5), “[t]he party seeking relief bears the burden of establishing that
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`changed circumstances warrant relief,” Horne, 557 U.S. at 447 (2009) (citing Rufo, 502 U.S. at
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`383); “but once a party carries this burden, a court abuses its discretion” when it fails to grant
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`appropriate relief. Id. (citing Agostini v. Felton, 521 U.S. 203, 215 (1997)).
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`
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`Rule 60(b)(6). In addition to the specific grounds for relief set forth in Rule 60(b)(1)-(5),
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`a court also may grant relief from judgment for “any other reason that justifies relief.” Fed. R.
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`
`
`8
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`

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`Case 1:92-cv-01002-ABJ Document 70 Filed 01/27/21 Page 15 of 30
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`Civ. P. 60(b)(6). The Tenth Circuit has described this rule as “a grand reservoir of equitable power
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`to do justice in a particular case.” Manzanares, 628 F.3d at 1241. Relief under Rule 60(b)(6) “is
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`appropriate only ‘when it offends justice to deny such relief.’” Yapp v. Excel Corp., 186 F.3d
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`1222, 1232 (10th Cir. 1999) (quoting Cashner v. Freedom Stores, Inc., 98 F.3d 572, 580 (10th Cir.
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`1996)).
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`
`
`Rule 60(c)(1). A motion for relief under Rule 60(b)(5) or (6) “must be made within a
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`reasonable time.” Fed. R. Civ. P. 60(c)(1). “What constitutes a reasonable time under Rule 60(b)
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`depends on the facts of each case.” Brown v. Dietz, No. 99-2476-JWL, 2005 WL 2175159 at *1
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`(D. Kan. Sept. 7, 2005); see also Lac Courte Oreilles Band of Lake Superior Chippewa Indians of
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`Wis. v. Wisconsin, 769 F.3d 543, 548 (7th Cir. 2014) (“[S]ince the rules specify no deadline[,] . .
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`. what is reasonable depends on the circumstances.”).
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`
`
`Although “[t]here is no explicit time limit applicable to motions under Rules 60(b)(5) and
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`60(b)(6)[,] . . . a party that delays filing a Rule 60(b) motion ‘must offer sufficient justification for
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`the delay.’” Trujillo v. Williams, No. 4-635 MV/GBW, 2018 WL 6182429 at *3 (D.N.M. Nov.
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`27, 2018) (quoting Myzer v. Bush, 750 Fed. Appx. 644, 647 (10th Cir. 2018) (quoting, in turn,
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`Cummings v. Gen. Motors Corp., 365 F.3d 944, 955 (10th Cir. 2004), abrogated on other grounds
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`by Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 399 (2006))).
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`
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`
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`I.
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`
`ARGUMENT
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`The Crow Tribe’s Motion is Timely.
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`The