John v. USA.

• Decision Date: 07 May 2001
• Docket Number: No. 00-35121,DEFENDANTS-APPELLANTS,DEFENDANTS-APPELLEES,PLAINTIFFS-APPELLEES,00-35121
• Citation: 247 F.3d 1032
• Parties: (9th Cir. 2001) KATIE JOHN; DORIS CHARLES; MENTASTA VILLAGE COUNCIL; ALASKA FEDERATION OF NATIVES,, v. UNITED STATES OF AMERICA; GALE A. NORTON, <A HREF="#fr1-1" name="fn1-1">1 IN HER OFFICIAL CAPACITY AS SECRETARY OF INTERIOR; ANN M. VENEMAN, <A HREF="#fr1-2" name="fn1-2">2 IN HER OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE; AND DANIEL DEMIENTIEFF, NILES CESAR, FRAN CHERRY, ROBERT BARBEE, DAVE ALLEN, AND RICK CABLES, IN THEIR CAPACITIES AS MEMBERS OF THE FEDERAL SUBSISTENCE BOARD,, AND STATE OF ALASKA AND FRANK RUE, IN HIS CAPACITY AS COMMISSIONER OF THE ALASKA DEPARTMENT OF FISH AND GAME, Initial En Banc Hearing
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1032

247 F.3d 1032 (9th Cir. 2001)

KATIE JOHN; DORIS CHARLES; MENTASTA VILLAGE COUNCIL; ALASKA FEDERATION OF NATIVES, PLAINTIFFS-APPELLEES, v. UNITED STATES OF AMERICA; GALE A. NORTON,¹ IN HER OFFICIAL CAPACITY AS SECRETARY OF INTERIOR; ANN M. VENEMAN,² IN HER OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE; AND DANIEL DEMIENTIEFF, NILES CESAR, FRAN CHERRY, ROBERT BARBEE, DAVE ALLEN, AND RICK CABLES, IN THEIR CAPACITIES AS MEMBERS OF THE FEDERAL SUBSISTENCE BOARD, DEFENDANTS-APPELLEES, AND STATE OF ALASKA AND FRANK RUE, IN HIS CAPACITY AS COMMISSIONER OF THE ALASKA DEPARTMENT OF FISH AND GAME, DEFENDANTS-APPELLANTS.

No. 00-35121

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Initial En Banc Hearing Argued and Submitted December 20, 2000

Filed May 7, 2001

Joanne M. Grace, Assistant Attorney General, State of Alaska, Anchorage, Alaska, for the defendants-appellants.

Heather Kendall Miller, Anchorage, Alaska and William E. Caldwell, Fairbanks, Alaska, for the plaintiffs-appellees.

Elizabeth Ann Peterson, Department of Justice, Washington, D.C., for the defendants-appellees.

Rebecca S. Copeland, Koval & Featherly, P.C., Anchorage, Alaska, Steven W. Strack, Deputy Attorney General, Boise, Idaho, Robert S. Pelcyger, Fredericks, Pelcyger & Hester, Llc, Louisville, Colorado, William Perry Pendley, Mountain States Legal Foundation, Denver, Colorado, Howard E. Shapiro, Washington, D.C., David S. Case, P.C., Anchorage, Roberta C. Erwin and Robert C. Erwin, Erwin & Erwin, Anchorage, Alaska, Paul A. Lenzini, Alexandria, Viriginia, and Jerome C. Muys, Washington, D.C., for the amici curiae.

Appeal from the United States District Court for the District of Alaska H. Russel Holland, Chief Judge, Presiding D.C. No. CV-90-00484-HRH

Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt, Alex Kozinski, Diarmuid F. O'Scannlain, Pamela Ann Rymer, Michael Daly Hawkins, A. Wallace Tashima, Susan P. Graber, M. Margaret McKeown, William A. Fletcher, and Richard C. Tallman, Circuit Judges.

Per Curiam

Per Curiam Opinion; Concurrence by Judge Reinhardt; Concurrence by Judge Tallman; Dissent by Judge Kozinski; Special Statement by Judge Rymer

PER CURIAM:

Before this en banc court are the district court's opinion and judgment entered pursuant to our court's mandate in Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) (en banc rehearing denied Aug. 8, 1995), cert. denied, 516 U.S. 1036 (1996), 517 U.S. 1187 (1996), and cert. denied sub nom. Alaska Federation of Natives v. United States, 517 U.S. 1187 (1996). A majority of the active judges voted to hear the appeal en banc rather than by a three-judge panel. The en banc court has now reviewed the briefs and heard oral argument on this appeal. A majority of the en banc court has determined that the judgment rendered by the prior panel, and adopted by the district court, should not be disturbed or altered by the en banc court.

AFFIRMED.

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 already 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,³ 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 conclusory 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.⁴

TALLMAN, Circuit Judge, with whom Circuit Judges TASHIMA and W. FLETCHER join, concurring in the judgment:

The Court today affirms the district court's judgment effectuating the opinion of the majority in Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995) ("Katie John I").¹ That decision approved an interpretation of ANILCA that seized on a single, undefined term--"title"--and, as a result, limited ANILCA's protection of subsistence fishing.

We write separately because we do not believe Congress intended the reserved water rights doctrine to limit the scope of ANILCA's subsistence priority. The reserved water rights doctrine is mentioned nowhere in the statute, and it is inadequate to achieve the express congressional purpose of protecting and preserving traditional subsistence fishing. We believe that Congress invoked its powers under the Commerce Clause to extend federal protection of traditional subsistence fishing to all navigable waters within the State of Alaska, not just to waters in which the United States has a reserved water right.

A. The Commerce Power.

When it passed ANILCA, Congress expressly invoked its power under the Commerce Clause to protect traditional subsistence fishing by rural Alaskans. See 16 U.S.C. §§ 3111(4). The Commerce Clause confers upon Congress the "power . . . to regulate commerce . . . among the several states . . . ." U.S. Const. art. I, §§ 8, cl. 3. The power extends to any activity that "exerts a substantial economic effect on interstate commerce." Wickard v. Filburn, 317 U.S. 111, 125 (1942); see also United States v. Lopez, 514 U.S. 549, 559 (1995) ("[T]he proper test requires an analysis of whether the regulated activity `substantially affects' interstate commerce."). "[W]here there is some effect on interstate commerce," Congress has "power under the Commerce Clause to regulate the taking of fish in state waters . . . ." Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 281-82 (1977).

It is beyond dispute that taking fish from waters within the State of Alaska substantially affects interstate commerce. The activity supports a $1.2 billion annual industry that comprises nearly 55% of United States seafood production and accounts for approximately 40% of Alaska's international exports.²

Congress did not relinquish its constitutional authority and confer upon states title to, or exclusive regulatory authority over, fish in navigable waters within state boundaries by enacting the Submerged Lands Act (SLA), 43 U.S.C. §§§§ 1301-1315. Rather, Congress expressly "retain[ed] all its . . . rights in and powers of regulation and control of . . . navigable waters for the constitutional purposes of commerce . . . ." Id. §§ 1314(a); see also United States v. R.B. Rands, 389 U.S. 121, 127 (1967) (concluding that the SLA "left congressional power over commerce . . . precisely where it found [it]"); Alaska v. United States, 754 F.2d 851, 853 n.3 (9th Cir. 1985) (holding that state ownership of submerged lands remains "subject to Congress' paramount power over navigable waters under the Commerce Clause"). The SLA conferred upon states concurrent regulatory authority over navigable waters and the natural resources within them. Barber v. Hawai'i, 42 F.3d 1185, 1190-91 (9th Cir. 1994). Where federal and state regulations conflict, federal authority preempts state authority. See Douglas, 431 U.S. at 286-87.

B. ANILCA's Protection of Subsistence Fishing.

In ANILCA, Congress invoked its "constitutional authority under the property clause and the commerce clause to protect and provide the opportunity for continued subsistence uses on the public lands . . . ." 16 U.S.C. §§ 3111(4). The Property Clause alone is sufficient justification for federal regulation of federal waters. See U.S. Const. art. IV,§§ 3, cl. 2; Utah Div. of State Lands v. United States, 482 U.S. 193, 201 (1987) (observing that the Property Clause grants the United States plenary power to regulate federal lands). Congress's invocation of the Commerce Clause indicates that it intended ANILCA to regulate not just waters over which it traditionally has exercised regulatory authority,...