Page:Herrera v. Wyoming, 587 U. S. (2019) (slip opinion).pdf/38

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Cite as: 587 U. S. ____ (2019)

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ALITO, J., dissenting

first ground adopted by the Tenth Circuit in Repsis—that is, the ground that relied on Race Horse. Ante, at 18, n. 5. But nowhere in the decision below can any such limitation be found. The Wyoming appellate court discussed the second ground for the Repsis judgment, see App. to Pet. for Cert. 22 (“[T]he creation of the Big Horn National Forest resulted in the ‘occupation’ of the land, extinguishing the off-reservation hunting right”), and it concluded that the judgment in Repsis, not just one of the grounds for that judgment, “preclude[s] Herrera from attempting to relitigate the validity of the off-reservation hunting right that was previously held to be invalid,” App. to Pet. for Cert. 31.^[1]

2

Herrera takes a different approach in attempting to circumvent the effect of the alternative Repsis ground. When a judgment rests on two independently sufficient

↑ The decision below, in other words, held that the issue that was precluded was whether members of the Crow Tribe have a treaty right to hunt in Bighorn. The majority rejects this definition of the issue, and instead asks only whether the first line of reasoning in Repsis retains preclusive effect. Such hairsplitting conflicts with the fundamental purpose of issue preclusion—laying legal disputes at rest. If courts allow a party to escape preclusion whenever a decision on one legal question can be divided into multiple or alternate parts, the doctrine of preclusion would lose its value. The majority’s “[n]arrower definition of the issues resolved augments the risk of apparently inconsistent results” and undermines the objectives of finality and economy served by preclusion. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4417, p. 470 (3d ed. 2016).

The Court also hints that the state court might have thought that Wyoming forfeited reliance on issue preclusion, ante, at 18, n. 5, but there is no basis for that suggestion. The Wyoming appellate court invited the parties to submit supplemental briefs on issue preclusion and specifically held that “it [was] proper for the Court to raise this issue sua sponte when no factual development is required, and the parties are given an opportunity to fully brief the issues.” App. to Pet. for Cert. 10, n. 2.

[1] The decision below, in other words, held that the issue that was precluded was whether members of the Crow Tribe have a treaty right to hunt in Bighorn. The majority rejects this definition of the issue, and instead asks only whether the first line of reasoning in Repsis retains preclusive effect. Such hairsplitting conflicts with the fundamental purpose of issue preclusion—laying legal disputes at rest. If courts allow a party to escape preclusion whenever a decision on one legal question can be divided into multiple or alternate parts, the doctrine of preclusion would lose its value. The majority’s “[n]arrower definition of the issues resolved augments the risk of apparently inconsistent results” and undermines the objectives of finality and economy served by preclusion. 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4417, p. 470 (3d ed. 2016).

The Court also hints that the state court might have thought that Wyoming forfeited reliance on issue preclusion, ante, at 18, n. 5, but there is no basis for that suggestion. The Wyoming appellate court invited the parties to submit supplemental briefs on issue preclusion and specifically held that “it [was] proper for the Court to raise this issue sua sponte when no factual development is required, and the parties are given an opportunity to fully brief the issues.” App. to Pet. for Cert. 10, n. 2.

[1]