stating that ANILCA must be given “the breadth and scope sufficient to achieve Congress’s express purpose”
How later courts described this case
- stating that ANILCA must be given “the breadth and scope sufficient to achieve Congress’s express purpose”
- addressing the certified question of whether "the term `public lands' [as defined by statute] applies to navigable waters within the State of Alaska"
- "[Statutory ambiguity cannot be determined by referring to the parties' interpretations of the statute. Of course their interpretations differ. That is why they are in court.”
- "If we must rely on the agency to divine the meaning of the statute, the meaning cannot be ‘plain to anyone reading it.’ ”
Written by the judges who cited it.
The opinion
REINHARDT, Circuit Judge,
with whom Judge TASHIMA joins, concurring:
Courts make mistakes too. Given the volume of the judicial workload these days, the Ninth Circuit makes remarkably few— indeed, fewer than some in even the judiciary may think. I believe it important to state, however, that in this case, we made an error in granting an initial en banc hearing, a procedure in which we engage 'infrequently. There was no justification for taking so unusual an action here.
The en banc court took this case directly from the district court, thus bypassing our regular three-judge panel hearing process. We ordinarily do this only when there is a direct conflict between two Ninth Circuit opinions and a panel would not be free to follow either. See Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc). Here, no such conflict was asserted. Nevertheless, we voted on whether to take this appeal en banc without the benefit of a panel opinion or opinions that would, at a minimum, have provided a clear statement of the issues raised. In this case, a panel opinion would likely have emphasized the points raised by Judge Rymer in her separate opinion: that the present appeal asks this court to resolve the precise question we had al *1034 ready decided in the same case, and as to which we had previously declined to grant en banc review. The issue before the panel then would have been whether the law of the case applied, or whether this case falls into one of the exceptions to that doctrine — and there is nothing presented by the parties that would lead me to believe that an exception would have been applicable. If the panel had determined that law of the case applied, we would then have been able to vote on whether en banc consideration was warranted with the benefit of the panel’s analysis of at least two issues: whether the prior panel’s opinion was clearly erroneous and whether its result caused a manifest injustice. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764 , 787 & n. 43 (9th Cir.2000) (discussing exceptions to law of the case doctrine). Although those questions would not have been dispositive, 1 at least we would have known far more about the case than we did when we cast our ill-advised en banc votes.
Our mistake in deciding to accept this ♦ appeal for initial en banc consideration caused eleven judges an inordinate amount of work, including reading 13 briefs totaling 454 pages, ruling before the hearing on various motions, and preparing, reviewing and voting on five separate opinions. All of this produced (understandably) a con-clusory per curiam opinion. Under these circumstances, it would be helpful to acknowledge our error and commit ourselves to examine more carefully any future suggestion by a judge (or anyone else) that we hear a case initially en banc.
Having said all that, I concur in the per curiam opinion. 2
. The law of the case would not be dispositive because it does not bind this court sitting en banc. Jeffries v. Wood, 114 F.3d 1484, 1492 (1997) (en banc).
. Judge Tashima also joins in Judge Tallman’s concurring opinion.