Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 1 of 20
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` FILED
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`
`
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`8:38 am, 7/1/21
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` Margaret Botkins
` Clerk of Court
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`

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`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 2 of 20
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`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page
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`Horse, 163 U.S. 504 (1896)
`
`to be controlling,
`
`as the fact patterns and treaty language
`
`were
`
`similar. Jd. at 524. Race Horse held
`
`Wyoming’s
`
`statehood abrogatedtribal hunting rights,
`
`so this Court felt
`
`compelled
`
`to come to the same conclusion. Repsis, 866 F.Supp.
`
`at 523.
`
`The case was dismissed. /d. at 525.
`
`The Crow Tribe appealed this Court’s decision to the Tenth Circuit, who affirmed.
`
`Crow Tribe of Indians v.
`
`Repsis,
`
`73 F.3d 982 (10th Cir. 1995). First, the Tenth Circuit
`
`affirmed the dismissal, finding
`
`Race Horse was still good
`
`law and concluding the tribal
`
`hunting rights
`
`were
`
`extinguished upon Wyoming’s
`
`statehood. /d. at 989-92.
`
`Although
`
`this
`
`Court’s
`
`opinion
`
`did not discuss it, the Tenth Circuit also affirmed the dismissal becauseit
`
`found the creation of the
`
`Bighorn National Forest was an
`
`“occupation”
`
`ofthe land within
`
`the meaning of the Treaty, and the hunting rights only lasted while the land was
`
`unoccupied.
`
`/d. at 993. The Tenth Circuit also affirmed on a conservation necessity finding,
`
`stating
`
`“there is
`
`ample evidence in the record to support the States’ contention that its
`
`regulations
`
`were reasonable and necessary for conservation.” /d.
`
`STANDARD OF REVIEW
`
`Plaintiffs ask for
`
`partial relief from this Court’s judgment. ECF No. 70. The Federal
`
`Rules of Civil Procedure allow relief where the
`
`judgment“is based on an earlier judgment
`
`that has been reversed or vacated [|
`
`or
`
`applying
`
`it
`
`prospectively
`
`is no
`
`longer equitable.”
`
`FED. R. Civ. P. 60(b)(5). A judgment is not “based on” an earlier
`
`judgment
`
`when it was
`
`simply
`
`used as
`
`precedent. Manzaneres v.
`
`City ofAlbuquerque,
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`628 F.3d 1237, 1240 (10th
`
`Cir.
`
`2010).
`
`Whenthere is “a significant change either in factual conditions or in law” and
`
`continued enforcement of the
`
`judgment is “detrimental to the public interest,” the Court
`
`Z
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`

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`may grant relief. Horne v.
`
`Flores, 557 U.S. 433, 447
`
`(2009).
`
`But the
`
`changed
`
`circumstances
`
`must
`
`a
`
`produce
`
`“hardship
`
`so extreme and unexpected
`
`as to make the decree oppressive.”
`
`EEOCv. Safeway Stores, 611 F.2d 795, 800 (10th Cir. 1975).
`
`Additionally, this Court may grant relief for “any
`
`other reason that
`
`justifies [it].”
`
`FED. R. CIv. P.
`
`60(b)(6). Rule 60(b)(6) is only available “when it offends
`
`justice
`
`to
`
`deny
`
`such relief.” Yapp
`
`v. Excel
`
`Corp.,
`
`186 F.3d 1222, 1232 (10th Cir. 1999). “A changein the
`
`law or in the judicial view of an established rule of law is not
`
`[]
`
`an
`
`extraordinary
`
`circumstance which justifies such relief.” Collins v.
`
`City of Wichita, 254 F.2d 837, 839
`
`(10th Cir. 1958).
`
`Relief from
`
`judgment
`
`is extraordinary. Brown v.
`
`McCormick, 608 F.2d 410, 413
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`(10th Cir. 1979). The party requesting
`
`relief from judgment bears the burden. Horne, 557
`
`U.S. at 447. Motions “must be made within a reasonable time.” FED. R. Clv. P. 60(c)(1).
`
`Reasonableness of the
`
`timing “depends upon the facts of each case,
`
`taking
`
`into
`
`consideration the interest in finality, the reason for delay, the practical ability of the
`
`litigant
`
`to learn earlier of the grounds relied upon, and prejudice
`
`to other parties.” United States v.
`
`All Monies from Account No, PO-204,675.0, 1998 WL 769811 at 5 (10th Cir. 1998).
`
`DISCUSSION
`
`A.
`
`Arguments
`
`Plaintiffs request this Court grant relief from the
`
`judgment barring
`
`their off-
`
`reservation treaty hunting rights.ECF No. 70 at 8. First, Plaintiffs seek relief under Rule
`
`60(b)(5) because this Court based its
`
`judgment entirely
`
`on Race Horse, finding
`
`the facts
`
`and
`
`legal
`
`issues identical. /d. at 17-18. However, Race Horse was overturned in Herrera
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`3
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`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page
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`v.
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`Wyoming, 139 S.Ct. 1686 (2019)
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`when the U.S. Supreme Court determined Wyoming’s
`
`statehood did not
`
`abrogate
`
`the Crow Tribe’s hunting rights. /d. at 18. Although the Tenth
`
`Circuit affirmed this Court’s decision, Plaintiffs argue the Court canstill grant relief
`
`withoutfirst
`
`seeking
`
`leave from the Tenth Circuit. /d. at 19.
`
`Alternatively, Plaintiffs argue they
`
`are entitled to relief under Rule
`
`60(b)(6). /d. at
`
`20. The Crow Tribe ceded millions of acres of land to the United States through
`
`treaties
`
`based on the understanding its members would have the
`
`right
`
`to hunt upon that land. Jd.
`
`Plaintiffs do not believe this Court’s
`
`judgment
`
`should continue to
`
`impede their off-
`
`reservation treaty hunting rights.
`
`Jd.
`
`The Tenth Circuit affirmed this Court’s decision, but also stated alternative bases
`
`for its affirmance; specifically, regarding
`
`the
`
`occupation
`
`of the Bighorn National Forest
`
`and conservation necessity. Plaintiffs request this Court declare the alternative
`
`holdings
`
`are
`
`not part of the final judgment.
`
`/d. at 22, 24.
`
`If the Court were to find the Tenth Circuit’s alternative holdings
`
`are
`
`part ofthe final
`
`judgment, Plaintiffs request this Court vacate the decision. /d. Herrera determined the
`
`creation of the Bighorn National Forest did not
`
`preclude
`
`the treaty hunting rights; so,
`
`Plaintiffs believe the Tenth Circuit’s contrary holding should be vacated. /d. at 22. The
`
`treaty is federal law,
`
`so Plaintiffs argue this Court should vacate the Tenth Circuit’s
`
`alternative
`
`holding
`
`to enforce the treaty. /d. at 23.
`
`In
`
`regards
`
`to the conservation
`
`necessity holding, Plaintiffs claim the
`
`evidentiary
`
`standard the Tenth Circuit articulated would not have been sufficient to resolve the
`
`summary judgment
`
`motion that was on
`
`appeal,
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`4
`
`and the Tenth Circuit did not address all of
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`the elements for a conservation
`
`necessity finding.
`
`/d. at 23-24. Alternatively, equity
`
`requires
`
`the decision be vacated under Rule 60(b)(6), according
`
`to Plaintiffs. /d.
`
`Plaintiffs also claim
`
`they
`
`are entitled to relief from the conservation necessity
`
`holding
`
`under Rule 60(b)(5) because ofits prospective effect. /d. at 24. The conservation
`
`necessity finding
`
`has
`
`prospective effect because
`
`Wyoming
`
`continues to
`
`on it to
`
`rely
`
`regulate
`
`Plaintiffs contend the circumstances have
`
`the Crow Tribe’s off-reservation treaty hunting rights.
`changed because there is a
`
`Jd. at 24-25. However,
`
`significant
`
`overpopulation
`
`of elk that was not
`
`present 25 years ago. Jd. at 27. Further, the
`
`goal of
`
`conservation necessity has been met because the elk population
`
`exceeds the State’s
`
`management objectives
`
`and
`
`Wyoming
`
`is now
`trying
`
`to reduce their population.
`
`/d. at 28.
`
`The Motion must be timely
`
`in order to receive relief, and Plaintiffs argue their
`
`Motion is timely
`
`because the earliest
`
`could have
`
`they
`
`brought
`
`the Motion was
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`May 20,
`
`2019 when the U.S. Supreme Court decided Herrera and expressly
`
`overruled Race Horse.
`
`Id. at 9. They did not
`
`immediately
`
`move for relief because Plaintiffs believed Wyoming
`
`would stop relying upon this decision and did not know the state courts would preclude
`
`tribal members from
`
`utilizing
`
`the treaty
`
`as a defense to criminal prosecution. /d. at 10.
`
`Further, COVID-19 and a
`
`in tribal
`
`change
`
`leadership
`
`added to the timeline. /d. Plaintiffs
`
`do not believe Defendants have suffered
`
`prejudice
`
`from any delay; rather, they believe the
`
`delay benefitted them. /d. at 10-11.
`
`Defendants first contend Plaintiffs have not been
`
`diligent
`
`in
`
`seeking
`
`relief because
`
`they
`
`could have
`
`soughtrelief in 1999 after the U.S. Supreme Court’s ruling in Minnesota
`
`v. Mille Lacs Band
`
`of Chippewa Indians, 526 U.S. 172 (1999), which the U.S.
`
`Supreme
`
`5
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`Court directly applied
`
`in Herrera. ECF No. 78 at 16-17.
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`They argue there is prejudice
`
`because relief in this case could harm
`
`Wyomingin
`
`state court
`
`proceedings where they
`
`are
`
`litigating
`
`whether the
`
`holdings
`
`in the Repsis litigation
`
`have issue preclusive
`
`effect. Jd. at
`
`LT
`
`Even if the Motion was
`
`timely, Defendants argue Plaintiffs are not entitled to relief.
`
`Id. at 18. First, they
`
`contend this Court’s
`
`holding that Wyoming’s
`
`statehood abrogated
`
`Plaintiffs’ hunting rights
`
`was not “based on” Race Horse. Id. It was
`
`merely precedent
`
`for
`
`this Court’s decision, which is not
`
`enough
`
`for relief under Rule 60(b)(5). Jd.
`
`Further, Defendants contend it
`
`is not
`
`inequitable
`
`to
`
`apply
`
`the judgment
`
`prospectively just
`
`because the
`
`primary holding regarding Wyoming’s
`
`statehood no
`
`longer
`
`binds the CrowTribe. /d. at 19. The Tenth Circuit affirmed on alternative
`
`grounds
`
`as well.
`
`Id. at 19. Defendants do not believe Rule 60(b) is the
`
`appropriate
`
`vehicle for relief, and
`
`instead contend Plaintiffs should follow the
`
`appellate process pending
`
`in the state courts.
`
`Id.
`
`Defendants do not believe Rule 60(b) allows this Court to overrule the Tenth
`
`Circuit’s alternative holdings
`
`on
`
`occupation
`
`of the Bighorn National Forest and
`
`conservation necessity.
`
`/d. at 20, 23. These
`
`holdings
`
`were not based on Race Horse. Id.
`
`The
`
`only potential inequity from
`
`prospective application
`
`of the
`
`occupation holding is the
`
`issue preclusive effect, according
`
`to Defendants. /d. Because of the
`
`principle
`
`of
`
`finality in
`
`judicial decisions, Defendants contend issue preclusion would not be inequitable. /d. at 22.
`
`A
`
`change in the law is not
`
`enough
`
`for relief under Rule 60(b)(6). /d.
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`

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`While Defendants concede there may be inequity
`
`in the
`
`prospective application
`
`of
`
`the conservation necessity holding
`
`at some
`
`point, they contend that day is not
`
`today because
`
`the Crow Tribe’s treaty rights
`
`are not
`
`firmly established with each
`
`specific
`
`site in the
`
`Bighorn National Forest. /d. at 24.
`
`Depending
`
`on the state court’s resolution of the issue
`
`preclusive
`
`effect of the
`
`occupation holding,
`
`Defendants argue the conservation necessity
`
`holding may not have any practical
`
`effect. Jd at 25. Defendants believe the issue of
`
`conservation
`
`necessity
`
`should be determined
`
`an
`
`through
`
`evidentiary hearing
`
`ortrial at the
`
`state court level, not a Rule 60(b) motion. /d. If the Crow Tribe were to win in the state
`
`court
`
`proceedings,
`
`Defendants contend Plaintiffs would not need relief from this Court. /d.
`
`Alternatively,
`
`Defendants request this Court abstain from
`
`deciding
`
`this Motion until
`
`the state court
`
`proceedings
`
`are
`
`complete.
`
`/d. at 26. There are
`
`ongoing
`
`state criminal
`
`proceedings addressing
`
`the same issues that are
`
`present here, and Defendants argue they
`
`have
`
`significant
`
`ramifications for the ability
`
`to manage game, hunting,
`
`and on future
`
`relations with the Crow Tribe. /d. at 27. Defendants contend the state
`
`proceedings
`
`are the
`
`best forum to determine whetherthe
`
`holdings
`
`in
`
`Repsis should continue to bind Crow Tribe
`
`members because the U.S. Supreme Court determined it should be so in Herrera. Id. at 28.
`
`The Crow Tribe is participating
`
`in the state
`
`proceedings,
`
`and Defendants argue the Tribe
`
`should not be able to
`
`collaterally
`
`attack those
`
`proceedings.
`
`/d. Even if abstention is not
`
`required, Defendants argue this Court should still decline to exercise
`
`jurisdiction
`
`at this
`
`time because the action is being used for the purpose of
`
`procedural fencing and it would
`
`cause friction between the federal and state courts. /d. at 29.
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`

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`Plaintiffs oppose abstention because the ongoing
`
`state
`
`proceedings present purely
`
`federal
`
`questions; although Wyoming
`
`law declares wildlife is State property, Plaintiffs
`
`argue this law cannot
`
`impair
`
`their treaty rights. ECF No. 79 at 3-4. The state court
`
`proceedings
`
`are not an
`
`adequate forum, according
`
`to Plaintiffs, because the scope
`
`ofthis
`
`Court’s
`
`judgment
`
`reaches
`
`beyond Wyoming
`
`state courts to the Crow Tribe’s lands in
`
`Montanaand the Dakotas as well. /d. at 4. Further, the Crow Tribe can
`
`only participate
`
`in
`
`the state
`
`proceedings
`
`as an amicus curiae with leave of the state courts. /d. at 5.
`
`Discretionary abstention is also improper, according
`
`to
`
`Plaintiffs, because there will
`
`be no friction between the state and federal courts; if this Court grants the Motion then the
`
`state court will be able to resolve the
`
`preclusion
`
`issues easier, but if it is denied then the
`
`state court canstill
`
`proceed.
`
`/d. Plaintiffs
`
`dispute
`
`the notion
`
`are
`
`they
`
`collaterally attacking
`
`the state court
`
`proceedings
`
`because a Rule 60(b) motion is not an action within the meaning
`
`ofa collateral attack. /d. at 6.
`
`B. Abstention
`
`First the Court will address the abstention issues to determine whether it should
`
`reach the merits of the Motion. Defendants
`
`primarily
`
`believe this Court should abstain from
`
`addressing
`
`the Motion under the
`
`Younger
`
`doctrine. ECF No. 78 at 26-28. This doctrine
`
`instructs federal courts to avoid granting equitable relief that would interfere with state
`
`court
`
`proceedings
`
`when suchrelief could be
`
`sought
`
`from the state court. Amanatullah v.
`
`Colo. Bd. Of Med. Exam’rs., 187 F.3d 1160, 1163 (10th Cir.
`
`1999).
`
`In the Tenth Circuit,
`
`federal courts must abstain when: “(1) there is an
`
`ongoing state criminal
`
`...
`
`proceeding, (2)
`
`the state court
`
`an
`
`provides
`
`adequate forum to hear the claims raised in the federal
`
`8
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`

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`complaint,
`
`and (3) the state
`
`proceedings
`
`involve
`
`important
`
`state interests, matters which
`
`traditionally look to state law for their resolution or
`
`implicate separately articulated state
`
`policies.”
`
`/d.
`
`The first factor for abstention is met
`
`here; there are state criminal
`
`proceedings
`
`currently being conducted in the Herrera case, on remand from the U.S. Supreme Court.
`
`ECF No. 70-1, ECF No. 78-2. However, the second factor for abstention is not met. The
`
`Court does not believe the state
`
`proceedings provide
`
`an
`
`adequate forum for Plaintiffs. They
`
`seek to be free from this Court’s
`
`judgment. While a favorable ruling
`
`on issue preclusion
`
`in
`
`the state court
`
`proceedings could relieve Plaintiffs from the binding effect of this Court’s
`
`judgmentin those
`
`particular proceedings,
`
`this would not bind other courts.
`
`Presumably
`
`Plaintiffs have further goals beyond utilizing
`
`a favorable ruling
`
`here to
`
`change the course
`
`of the state court
`
`proceedings
`
`in Herrera. They have land in the Dakotas and Montana;so,
`
`it is foreseeable that litigation regarding these issues may be
`
`presented
`
`before courts in
`
`those states. There may also be the
`
`potential
`
`for further litigation in Wyomingif
`
`the case
`
`presented itself. A favorable issue preclusion ruling
`
`in the Herrera state court
`
`proceedings
`
`would not
`
`necessarily apply
`
`to courts in other states or other litigation
`
`in
`
`Wyomingifthe
`
`circumstances were different. The only way Plaintiffs can
`
`fully
`
`receive the relief they
`
`seek
`
`is through
`
`an ordervacating
`
`this Court’s
`
`judgment.
`
`Further, the CrowTribe is only allowed to
`
`participate in the state court
`
`proceedings
`
`as an amicus curiae. Therefore, its
`
`to
`
`ability
`
`fully represent the interests of all members,
`
`as
`
`opposedto just
`
`Mr. Herrera, is impaired
`
`in the state court
`
`proceedings. State court is not
`
`an
`
`adequate forumfor the Tribe.
`
`

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`On balance, the last factor
`
`weighs against abstention. The state court
`
`proceedings
`
`look to federal law for resolution, not state law. The Herrera
`
`proceedings
`
`are
`
`addressing
`
`whether the area in which an elk was removed was
`
`occupied within the meaning of the
`
`treaty, whether conservation necessity allows the state to
`
`regulate treaty hunters, and
`
`whether issue
`
`preclusion prevents Mr. Herrera from arguing occupation
`
`of the Bighorn
`
`National Forest and conservation necessity.
`
`ECF No. 70-1 at 3. First, the
`
`occupation issue
`
`clearly invokes federal law because it involves the
`
`interpretation
`
`of the treaty granting
`
`the Crow Tribe’s protections.
`
`See
`
`and it could potentially extinguish
`hunting rights,
`Timpanogos Tribe v.
`
`Conway, 286 F.3d 1195, 1203 (10th Cir. 2002) (explaining
`
`the
`
`termination of Indian occupancy protection under treaties requires the application of
`
`federal law).
`The conservation necessity issue invokes a mix of federal and state interests. Federal
`
`interests because the Court is addressing federally guaranteed treaty hunting rights,
`
`but
`
`state interests are also at
`
`because the State has the authority
`
`to
`
`play
`
`necessary nondiscriminatory regulations
`
`on Indian hunting
`
`impose “reasonable and
`...
`
`in the interest of
`
`conservation.” See Mille Lacs, 526 U.S. at 205.
`
`Further, the state courts have been applying
`
`federal rules on issue preclusion
`
`to
`
`determine whether Mr. Herrera can utilize defenses the State claims have
`
`already been
`
`addressedin other proceedings. /d. at 14. In totality, the issues in the state court
`
`proceedings
`
`largely invoke federal concerns; so, the Court does not believe Younger abstention is
`
`applicable.
`
`10
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`

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`Defendants also requested this Court use its discretionary powers to abstain from
`
`resolving the Motion at this time. ECF No. 78 at 28-29. When there is an action for
`
`declaratory judgment,
`
`courts may consider someof these factors in
`
`determining
`
`whether
`
`to
`
`proceed:
`
`whether a
`action would settle the controversy; [2] whetherit
`[1]
`declaratory
`would serve a useful purpose in clarifying
`relations at issue; [3]
`the
`legal
`is
`used
`for the purpose of
`whether the declaratory remedy
`being
`merely
`an arena for a race to res
`or ‘to
`judicata;’ [4]
`‘procedural fencing’
`provide
`declaratory action would increase friction between our
`whether use of a
`federal and state courts and improperly
`encroach uponstate
`jurisdiction; and
`[5] whetherthere is an alternative remedy whichis better or more effective.
`
`St. Paul Fire & Marine Ins. Co. v.
`
`Runyon,.53 F.3d 1167, 1169 (10th Cir. 1995). This
`
`process does not appear to
`
`typically
`
`occur at such a late stage in the case, after the final
`
`judgment
`
`was
`
`already entered. Nevertheless, this Court will
`
`proceed
`
`to
`
`weigh
`
`the factors
`
`because Plaintiffs are
`
`essentially asking
`
`for
`
`declaratoryrelief; they have asked the Courtto
`
`declare certain issues were not part of this Court’s
`
`judgment.
`
`Defendants’ main contention is this Motion is being
`proceedingsand resolution at this time would cause friction between the federal and state
`courts. ECF No. 78 at 29. To begin, the Court does not believe a
`ruling would create any
`
`used to attack the state court
`
`friction between the federal andstate courts. If the Court were to grant the Motion then the
`
`state courts would know the judgment
`
`cannot be given preclusive
`
`effect in the state
`
`proceedings; if the Court denies the Motion then the state courts couldstill determine
`more
`
`whether to
`
`the
`
`give
`
`judgment preclusive
`
`effect. A ruling today would
`
`provide
`
`guidance
`
`to the state courts, not create friction; and it would settle the controversy between
`
`the
`
`parties about the binding effect of the
`
`judgment. Although
`
`Plaintiffs are
`
`clearly trying
`
`1]
`
`

`

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`12 of 20
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`
`to alter the course of the state court
`
`proceedings by filing
`
`this Motion, the Court does not
`
`believe it is necessary to abstain from ruling
`
`on the issues. It makes the most sense forthis
`
`Court address its own
`
`judgment,
`
`rather than
`
`having
`
`the state courts
`
`it.
`
`analyze
`
`The Court should abstain from a case when the sameissuesare
`
`to be decided
`
`likely
`
`elsewhere. Runyon, 53 F.3d at 1170. However, the issues Plaintiffs ask the Court to address
`
`will not be decided elsewhere. To address this Motion, the Court will examineits
`
`previous
`
`judgment,
`
`the Tenth Circuit decision
`
`affirming
`
`the
`
`judgment,
`
`and the Supreme Court’s
`
`Herrera decision to determine whetherrelief from judgment should be granted.
`
`The state
`
`courts will address issues involving conservation necessity and/or occupation
`
`of the
`
`National Forest,
`
`as well as issue preclusion.
`analysis regarding
`Bighorn
`judgmentis distinct fromthese state court issues, and this Court is the only forum that can
`
`An
`
`relief from
`
`decide the issue of whetherrelief from judgment should be granted.
`
`Ultimately,
`
`the Court does not believe any abstention is necessary and that a
`
`resolution to this Motion will help the parties moving forwardin the state court
`
`proceedings
`
`and in potential future litigation.
`
`There is no
`
`apparent
`
`reason to wait on
`
`issuing
`
`a
`
`ruling,
`
`and it is unclear how long the state court
`
`proceedings
`
`will take at this point
`
`in time. The
`
`case is now on
`
`appeal
`
`from the state circuit court, but it could take years to resolve the
`
`issues if the case makes its way from the district court back up to the Supreme
`
`Court.
`
`Nothing the Court does here will unnecessarily interfere with the state court
`
`proceedings;
`
`a favorable decision for Plaintiffs would instruct the state courts that this
`
`judgment
`
`no
`
`longer binds tribal members. A denial of the Motion will not have any impact
`
`on the state
`
`

`

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`
`court
`
`proceedings whatsoever. For these reasons, the Court will not abstain from exercising
`
`jurisdiction
`
`over this Motion.
`
`C. Timing
`
`of the Motion
`
`Although
`
`the Motion for Relief from
`
`Judgment
`
`was filed a
`
`considerably long
`
`amount of time after the final
`
`judgment
`
`in this case, approximately
`
`26 years to be exact,
`
`the Court believes it was filed within a reasonable time. Plaintiffs’
`
`practical ability
`
`to learn
`
`of the groundsforrelief from judgment only
`
`arose in 2019 when the U.S.
`
`Supreme
`
`Court
`
`decided Herrera.
`
`Despite
`
`Defendants’ contentions that Plaintiffs could have raised the
`
`issue in 1999 after the Mille Lacs decision, the Court does not agree. Clearly there were
`
`still questions regarding
`
`the
`
`applicability of Race Horse or the Herrera decision would
`
`have been
`
`entirely unnecessary.
`
`There was
`
`delay in
`
`bringing
`
`the Motion after the Herrera decision was
`
`issued, but
`
`Plaintiffs did not know of the necessity of bringing this Motion until the state court
`
`proceedings began
`
`on remand. Atthat point
`
`it became clear the State was
`
`to contest
`
`going
`
`Mr. Herrera
`
`raising defenses regarding
`
`conservation necessity and occupation
`
`of the
`
`Bighorn
`
`National Forest. The state circuit court ruled in favor of the State and found
`
`preclusive effect,
`
`so Plaintiffs determined it was
`
`necessary to receive relief from this
`
`judgmentin order to allow Mr. Herrera to formulate his defense on remand. Althoughthere
`
`wasalso delay after the circuit court’s
`
`ruling, Plaintiffs attribute this to the pandemic and
`
`a
`
`change in tribal leadership. The pandemic has madelitigation difficult for many, and
`
`compounding that with a
`
`change
`
`in
`
`leadership
`
`makes the additional delay
`
`unavoidable.
`
`13
`
`

`

`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 14 of 20
`14 of 20
`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page
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`Defendants have not suffered any prejudice from the delay because they have had
`
`the ability
`
`to
`
`regulate tribal hunting
`
`without any interference. If the Court were to grant
`
`relief from this
`
`judgment
`
`then any delay would have been beneficial to
`
`Defendants,
`
`as
`
`they
`
`would have beenable to
`
`rely
`
`on the judgment for over 20 years. If the Court denies relief
`
`from the
`
`judgment,
`
`then Defendants will be able to continue to
`
`on the
`
`judgment
`
`and
`
`rely
`
`nothing will change. Regardless, any delay
`
`in
`
`bringing the Motion wasnot
`
`prejudicial.
`
`Defendants argue the
`
`timing
`
`of the Motion is prejudicial because Plaintiffs waited
`
`to seek relief until after the state circuit court determined there was
`
`preclusive
`
`effect on
`
`various issues Mr. Herrera
`
`attempted
`
`to raise in his defense. ECF No. 78 at 17. Although
`
`relief from this
`
`judgment may affect how the State argues its case in the state court
`
`proceedings,
`
`relief would not
`
`entirely prejudice
`
`the State. Instead of skirting the issues of
`
`conservation
`
`necessity
`
`and
`
`occupation,
`
`the State may be forced to address them. But relief
`
`here would not
`
`completely compromise
`
`the case; the State could still make arguments
`
`on
`
`conservation necessity
`
`and
`
`occupation
`
`in order to prosecute Mr. Herrera.
`
`Prejudice requires
`
`a
`
`on the judgmentin the future; that is precisely
`to rely
`greater showing thanthe inability
`the purpose of Rule 60(b). See FG Hemisphere Assocs., LLC v. Democratic Republic of
`
`Congo,
`
`447 F.3d 835, 840 (D.C. Cir. 2006).
`
`The need for finality in
`
`judgments
`
`must also be considered along with the other
`
`circumstances ofthe case when addressing timeliness. See Brown, 608 F.2d at 413.
`
`Despite
`
`the need for finality
`
`in this case, the Motion is timely. Plaintiffs could not have
`
`brought
`
`this case until after Herrera, and then waited
`
`roughly
`
`twoyears after the decision because
`
`of explainable delays. Further, Defendants suffered no
`
`prejudice
`
`from the
`
`delay apart from
`
`14
`
`

`

`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 15 of 20
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`
`the possibility they will be unable to
`
`rely
`
`on this judgment
`
`in the future, which is not
`
`enough. On balance, Plaintiffs have
`
`brought
`
`the Motion with a reasonable time frame and
`
`have overcome the interests in
`
`finality
`
`when
`
`considering
`
`timeliness.
`
`D.
`
`Wyoming’s
`
`Statehood
`
`Holding
`
`To begin,
`
`the Court notes it will address the issues in the manner Plaintiffs raised
`
`them; first beginning
`
`with this Court’s holding regarding Wyoming’s statehood, then
`
`separately addressing
`
`the Tenth Circuit’s alternative holdings
`
`on
`
`occupation
`
`of the Bighorn
`
`National Forest and conservation necessity. Plaintiffs request relief under Rule 60(b)(5)
`
`or
`
`60(b)(6). ECF No. 70 at 17.
`
`Although the Tenth Circuit affirmed this Court’s judgment,
`
`the Court does not need to seek leave before addressing the Motion to Vacate
`
`Judgment.
`
`See Standard Oil Co. of Cal. v. United States, 429 U.S. 17
`
`(1976) (per curiam). The Tenth
`
`Circuit’s decision addressed the same issues and considered the same
`
`record; so, the Court
`
`need not seek leave to grant relief from its judgment
`
`that was affirmed. See id. at 18
`
`(explaining appellate-leave
`
`was not necessary when the appellate decision “relate[d]
`
`to the
`
`record and issues then before the court, and d[id]
`
`not
`
`purport
`
`to deal with
`
`possible
`
`later
`
`events.’’)
`
`Moving
`
`to the merits of the Motion, Plaintiffs are not entitled to relief under Rule
`
`60(b)(5) because the
`
`judgment
`
`wasnot
`
`sufficiently
`
`“based on” Race Horse in the manner
`
`envisioned underthe Federal Rules of Civil Procedure. Although this Court felt
`
`compelled
`
`to follow Race Horse as
`
`binding precedent,
`
`and acknowledged
`
`the facts and issues were
`
`identical, this is still not
`
`enough for relief under Rule
`
`60(b)(5). Repsis,
`
`866
`
`F.Supp.
`
`at 522-
`
`24. For a
`
`judgment
`
`to be “based on” a
`
`priorcase, it must be in the same senseasres
`
`judicata
`
`[5
`
`

`

`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 16 of 20
`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 16 of 20
`
`or collateral estoppel. Manzaneres 628 F.3d at 1240. Here, Plaintiffs were able to
`
`litigate
`
`the issues; they
`
`were not
`
`prevented from
`
`doing
`
`so because of res
`
`judicata
`
`or collateral
`
`estoppel arising from Race Horse.
`
`Despite
`
`the similar facts and issues in the cases, Race
`
`Horse did not involve the same tribe or
`
`privity
`
`and did not prevent Plaintiffs from arguing
`
`their positions
`
`in front ofthis Court.
`
`This Court cannot
`
`grant relief from judgment simply
`
`because the law it applied has
`
`since been overruled in another unrelated
`
`proceeding.
`
`Lubben v. Selective Serv. Sys. Local
`
`Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972). There is a need for finality
`
`of
`
`judgments.
`
`Brown, 608 F.2d at 413. Relief from judgment
`
`is an
`
`extraordinary remedy
`
`that
`
`requires
`
`a
`
`change in precedent. Cases where one
`showing of more than a
`judgment
`another are rare and infrequent. Manzaneres, 628 F.3d at 1240. This is not one ofthose
`cases.
`rare or
`Granted, the Court may have come to the
`
`infrequent
`
`opposite conclusion if
`
`is “based on”
`
`Herrera were
`
`binding precedent
`
`at the time the judgment
`
`was
`
`entered, but that is not
`
`enough,
`
`on its own, for this Court to grant relief from its judgment.
`
`Rule 60(b)(6) does not
`
`provide
`
`an avenue of relief for Plaintiffs either. Plaintiffs
`
`argue the
`
`equities favor relief from this Court’s decision regarding Wyoming’s statehood
`
`and their treaty hunting rights.
`
`ECF No. 70 at 20. However, this Court’s decision on
`
`longerhas
`statehood and treaty hunting rights
`repudiated
`preclusive
`light of Herrera. 139 S. Ct. at 1697-98. There is no reason to grantrelief from this portion
`
`was
`
`and no
`
`effect in
`
`of the case because it no
`
`longer stands as a barrier to the exercise of treaty hunting rights.
`
`

`

`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 17 of 20
`17 of 20
`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page
`
`E.
`
`Bighorn
`
`National Forest
`
`Occupation Holding
`
`Preliminarily, Plaintiffs contend the Tenth Circuit’s discussion of the occupation of
`
`the
`
`Bighorn National Forest is not a
`
`part of the judgment. ECF No. 70 at 22. It is unclear
`
`whetherthey
`
`are
`
`referring
`
`to this Court’s
`
`judgment
`
`or the Tenth Circuit’s final decision. In
`
`discussing
`
`the alternative
`
`holding
`
`on the occupation of the Bighorn National Forest, the
`
`Tenth Circuit explicitly stated, “the district court did not reach this issue.” Repsis,
`on the summary judgment
`
`982 at 993. Although,theparties raised the issue in their briefing
`
`73 F.3d
`
`motions, this Court did not address the issue in its final judgment.
`
`Despite
`
`the fact this Court did not address occupation in its judgment,
`
`the Tenth
`
`Circuit was entitled to affirm this Court’s
`
`judgment
`
`on any grounds
`
`“for which there is a
`
`record sufficient to
`
`permit conclusions of law....” Repsis, 73 F.3d 982 at 993
`
`(quoting
`
`United States v.
`
`Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)). The Tenth Circuit
`
`addressed the
`
`Bighorn National Forest occupation
`
`as an alternative holding. Repsis, 73
`
`F.3d 982 at 993. Thus, it was
`
`clearly part of the Tenth Circuit’s decision affirming this
`
`Court’s judgment,
`
`even
`
`though this Court did not address occupation
`
`inits judgment.
`
`In the alternative, Plaintiffs contend this Court has the authority
`
`to vacate the Tenth
`
`Circuit’s alternative holding
`
`on the
`
`occupation
`
`of the Bighorn
`
`National Forest. ECF No.
`
`70 at 21. The Court does not believe it has the powerto do so. Plaintiffs cite to Standard
`
`Oil, claiming it enables the Court to overturn the Tenth Circuit, but it does not. Standard
`Oil only addressed whether a district court must seek leave from an
`appellate
`appeal. Standard Oil, 429 U.S. at 18. The case does not
`reopen a case that was affirmed on
`address whethera district court can vacate an
`
`court to
`
`the district
`
`appellate
`
`court decision affirming
`
`1?
`
`

`

`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page 18 of 20
`18 of 20
`Case 1:92-cv-01002-ABJ Document 84 Filed 07/01/21 Page
`
`court’s judgment whenthe appellate decision contains alternative holdings. These are
`
`distinct issues.
`
`Plaintiffs have not
`
`provided this Court with any authority showing the Court has the
`
`powerto vacate a Tenth Circuit decision on an issue completely different from that which
`
`this Court ruled on, and the Court genuinely questions
`
`whetherit is possible. In a similar
`
`situation the District of Vermont expressed
`
`concernsthat the
`
`appellate
`
`court’s decision was
`
`erroneous, but acknowledged
`
`that it was
`
`subject
`
`t