Herrera v. Wyoming

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Herrera v. Wyoming

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Conference of June 27, 2019

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-532	Wyo. Dist.	Jan 8, 2019 Tr.Aud.	May 20, 2019	5-4	Sotomayor	OT 2018

Holding: Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Judgment: Vacated and remanded, 5-4, in an opinion by Justice Sotomayor on May 20, 2019. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined.

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right (Gregory Ablavsky)
OT2018 #15: "Second Best Opinion" (First Mondays)
OT2018 #14: "Decent Take" (First Mondays)
Argument analysis: Justices grapple with preclusion and “occupation” in Crow Tribe treaty case (Gregory Ablavsky)
Argument preview: Tribes, treaties and animals return to the Supreme Court (Gregory Ablavsky)

Date	Proceedings and Orders (key to color coding)
Aug 07 2017	Application (17A158) to extend the time to file a petition for a writ of certiorari from September 4, 2017 to October 5, 2017, submitted to Justice Sotomayor.
Aug 09 2017	Application (17A158) granted by Justice Sotomayor extending the time to file until October 5, 2017.
Oct 05 2017	Petition for a writ of certiorari filed. (Response due November 9, 2017)
Oct 12 2017	Blanket Consent filed by Petitioner, Clayvin Herrera
Oct 24 2017	Blanket Consent filed by Respondent, Wyoming
Nov 08 2017	Brief amici curiae of Indian Law Professors filed.
Nov 09 2017	Brief of respondent Wyoming in opposition filed.
Nov 09 2017	Brief amicus curiae of Crow Tribe of Indians filed.
Nov 09 2017	Brief amici curiae of Timothy P. McCleary, et al. filed.
Nov 28 2017	Reply of petitioner Clayvin Herrera filed.
Nov 29 2017	DISTRIBUTED for Conference of 1/5/2018.
Jan 08 2018	The Solicitor General is invited to file a brief in this case expressing the views of the United States.
May 22 2018	Brief amicus curiae of United States filed.
Jun 05 2018	DISTRIBUTED for Conference of 6/21/2018.
Jun 05 2018	Supplemental brief of petitioner Clayvin Herrera filed. (Distributed)
Jun 05 2018	Supplemental brief of respondent Wyoming filed. (Distributed)
Jun 27 2018	DISTRIBUTED for Conference of 6/27/2018.
Jun 28 2018	Petition GRANTED.
Jul 30 2018	Motion for an extension of time to file the opening briefs on the merits filed.
Jul 31 2018	Blanket Consent filed by Petitioner, Clayvin Herrera.
Aug 02 2018	Motion to extend the time to file the opening briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 4, 2018. The time to file respondent's brief on the merits is extended to and including October 22, 2018.
Aug 27 2018	Blanket Consent filed by Respondent, State of Wyoming
Sep 04 2018	Joint appendix filed.
Sep 04 2018	Brief of petitioner Clayvin Herrera filed.
Sep 10 2018	Brief amicus curiae of Eastern Shoshone Tribe filed.
Sep 11 2018	Brief amici curiae of Southern Ute Indian Tribe and Ute Mountain Ute Tribe filed.
Sep 11 2018	Brief amici curiae of Shoshone-Bannock Tribes of the Fort Hall Reservation filed.
Sep 11 2018	Brief amicus curiae of United States filed.
Sep 11 2018	Brief amici curiae of Natural Resources Law Professors filed.
Sep 11 2018	Brief amici curiae of Pacific and Inland Northwest Treaty Tribes filed.
Sep 11 2018	Brief amici curiae of Timothy P. McCleary, et al. filed.
Sep 11 2018	Brief amicus curiae of Crow Tribe of Indians filed.
Sep 11 2018	Brief amici curiae of National Congress of American Indians, et al. filed.
Sep 11 2018	Brief amici curiae of Indian Law Professors filed.
Oct 03 2018	Motion of Clayvin Herrera for an extension of time not accepted for filing. (Corrected motion submitted - October 12, 2018)
Oct 11 2018	Motion for a further extension of time to file respondent's brief on the merits filed.
Oct 12 2018	Motion for a further extension of time to file respondent's brief on the merits granted and the time is extended to and including November 13, 2018.
Nov 13 2018	Brief of respondent Wyoming filed.
Nov 15 2018	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
Nov 20 2018	Brief amici curiae of Western Association of Fish and Wildlife Agencies, et al. filed.
Nov 20 2018	Brief amici curiae of States of Nebraska, Kansas, Louisiana, North Dakota, South Dakota, and Texas filed.
Nov 20 2018	Brief amicus curiae of Association of Fish and Wildlife Agencies filed.
Nov 20 2018	Brief amici curiae of Wyoming Stock Growers Association, et al. filed.
Nov 20 2018	Brief amicus curiae of Safari Club International filed.
Nov 20 2018	Brief amici curiae of Citzen Equal Rights Foundation, Mille Lacs Equal Rights Foundation, City of Wakhon, Minnesota filed.
Nov 28 2018	SET FOR ARGUMENT ON Tuesday, January 8, 2019
Nov 30 2018	CIRCULATED
Dec 03 2018	Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
Dec 11 2018	Record requested from U.S.D.C. Wyoming, Sheridan County.
Dec 13 2018	Reply of petitioner Clayvin Herrera filed. (Distributed)
Dec 27 2018	Record from the District Court Wyoming, Sheridan County received (2 boxes).
Jan 08 2019	Argued. For petitioner: George W. Hicks, Jr., Washington, D. C.; and Frederick Liu, Assistant to the Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: John G. Knepper, Chief Deputy Attorney General, Cheyenne, Wyo.
May 20 2019	Judgment VACATED and case REMANDED. Sotomayor, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Kagan, and Gorsuch, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Thomas and Kavanaugh, JJ., joined.

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Opinion analysis: Divided court throws out additional jail time for sex offender – Amy Howe

Challengers urge justices not to decide racial-discrimination claim in census case – Amy Howe

Relist Watch – John Elwood
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This Week at the Court
On Monday, the Supreme Court released orders from the June 20 conference; the justices granted eight new cases, for a total of five hours of oral argument next term: Guerrero-Lasprilla v. Barr, Ovalles v. Barr, Dex Media Inc. v. Click-To-Call Technologies, LP, Maine Community Health Options v. United States, Moda Health Plan Inc. v. United States, Land of Lincoln Mutual Health Insurance Co. v. United States, Georgia v. Public.Resource.Org Inc. and Banister v. Davis.
Also on Monday, the justices released their opinions in four argued cases: United States v. Davis, Food Marketing Institute v. Argus Leader Media, Iancu v. Brunetti and The Dutra Group v. Batterton.
On Wednesday, the justices released their opinions in three argued cases: United States v. Haymond, Kisor v. Wilkie, and Tennessee Wine & Spirits Retailers Association v. Thomas.
On Thursday, the Supreme Court will release its final opinions for the term.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Auer v. Robbins and Bowles v. Seminole Rock & Sand Co – under which deference is given to an agency’s reasonable reading of its own genuinely ambiguous regulations – are not overruled.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  The Bladensburg Cross does not violate the establishment clause of the First Amendment.
- Gamble v. United States
  The dual-sovereignty doctrine – under which two offenses are not the “same offence” for double jeopardy purposes if prosecuted by separate sovereigns – is upheld.
see all this term’s cases »
Recent Decisions
- Kisor v. Wilkie Auer v. Robbins and Bowles v. Seminole Rock & Sand Co – under which deference is given to an agency’s reasonable reading of its own genuinely ambiguous regulations – are not overruled.
- Tennessee Wine & Spirits Retailers Association v. Thomas Tennessee’s 2-year durational-residency requirement applicable to retail liquor store license applicants violates the commerce clause and is not saved by the 21st Amendment.
- United States v. Haymond The U.S. Court of Appeals for the 10th Circuit’s judgment – that 18 U. S. C. §3583(k)’s last two sentences are unconstitutional and unenforceable – is vacated, and the case is remanded.
- Food Marketing Institute v. Argus Leader Media Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of 5 U. S. C. §552(b)(4), the Freedom of Information Act’s Exemption 4.
- Iancu v. Brunetti The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.
- The Dutra Group v. Batterton A plaintiff may not recover punitive damages on a maritime claim of unseaworthiness.
- United States v. Davis Title 18 U. S. C. §924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague.
see all this term’s cases »
Current Relists
- Atlanta Gas Light Co. v. Bennett Regulator Guards Inc. (1) Whether the U.S. Court of Appeals for the Federal Circuit erred in concluding that it had jurisdiction to review the Patent Trial and Appeal Board’s decision to institute inter partes review of respondent’s patent over respondent’s objection that it was time-barred; and (2) whether the U.S. Court of Appeals for the Federal Circuit erred when it rejected the longstanding principle that a dismissal without prejudice leaves the parties as if a suit had never been brought, splitting the circuits.
- Department of Homeland Security v. Regents of the University of California (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’s decision to wind down the DACA policy is lawful.
- Espinoza v. Montana Department of Revenue Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
More Petitions »
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Statistical Snapshot

Cases argued 69

Cases decided 66

Summary reversals 5

Merits cases granted to date 74

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On June 3, Justice Clarence Thomas spoke with David Rubenstein for the Supreme Court Historical Society’s annual lecture at the Supreme Court.

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Cases argued	69
Cases decided	66
Summary reversals	5
Merits cases granted to date	74

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