410
Opinion of the Court
"[W]hile the technical rules of preclusion are not strictly applicable [in the context of a single ongoing original action], the principles upon which these rules are founded should inform our decision." Arizona II, 460 U. S., at 619. Those principles rank res judicata an affirmative defense ordinarily lost if not timely raised. See Fed. Rule Civ. Proc. 8(c). Counsel for the State parties conceded at oral argument that "no preclusion argument was made with respect to boundary lands" in the proceedings leading up to Arizona II, and that "after this Court's decision in Arizona II and after the Court's later decision in [Nevada v. United States, 463 U. S. 110 (1983)], the light finally dawned on the State parties that there was a valid preclusion—or res judicata argument here with respect to Fort Yuma." Tr. of Oral Arg. 46-47. We disapprove the notion that a party may wake up because a "light finally dawned," years after the first opportunity to raise a defense, and effectively raise it so long as the party was (though no fault of anyone else) in the dark until its late awakening.
The State parties assert that our prior pronouncements in this case have expressly recognized the possibility that future boundary lands claims for the Fort Yuma Reservation might be precluded. If anything, the contrary is true. Nothing in the Arizona II decision hints that the Court believed the boundary lands issue might ultimately be held precluded. Rather, the Court expressly found it "necessary to decide whether any or all of these boundary disputes have been 'finally determined' within the meaning of Article
8(c), the preclusion defense could have been raised. No such supplemental pleading was ever presented, and by 1989 a reasonable time to do so had surely expired.
The State parties' tardiness in raising their preclusion defense is hard to account for, while the United States' decision not to assert claims for the disputed boundary lands until 1978 can at least be explained by the continued vitality of the Margold Opinion, see supra, at 402. It is puzzling that the dissent should go to such lengths to excuse the former delay while relentlessly condemning the latter.
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