John

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.

*1035 A. The Commerce Power.

When it passed ANILCA, Congress expressly invoked its power under the Commerce Clause to protect traditional subsistence fishing by…

with whom Circuit Judges O’SCANNLAIN and RYMER join, dissenting:

The Supreme Court has held time and again that states control fishing in their navigable waters, unless Congress has dearly stated a contrary intention. See United States v. Oregon, 295 U.S. 1, 14 , 55 S.Ct. 610 , 79 L.Ed. 1267 (1935); Coyle v. Smith, 221 U.S. 559, 573 , 31 S.Ct. 688 , 55 L.Ed. 853 (1911); see also Montana v. United States, 450 U.S. 544, 552, 101 S.Ct. 1245 , 67 L.Ed.2d 493 (1981). Alaska exercises sovereignty over the beds of its navigable waters just as it does over its dry land; its power to control navigation, fishing and other public uses of the water above the beds is an incident of this sovereignty. See Utah Div. of State Lands v. United States, 482 U.S. 193, 195 , 107 S.Ct. 2318 , 96 L.Ed.2d 162 (1987). Because control over “navigable waters uniquely implieate[s] sovereign interests,” Idaho v. Coeur d’Alene Tribe, 521 U.S. 261, 284 , 117 S.Ct. 2028 , 138 L.Ed.2d 438 (1997), Congress will not be deemed to have taken away such rights by implication or indirection. Rather, Congress must have “definitely declared or otherwise made plain” an intent to diminish the state’s right to control fishing…

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…

PER CURIAM Opinion; Concurrence by Judge REINHARDT; Concurrence by Judge TALLMAN; Dissent by Judge KOZINSKI; Special Statement by Judge RYMER.

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 , 116 S.Ct. 690 , 133 L.Ed.2d 594 (1996), 517 U.S. 1187 , 116 S.Ct. 1672 , 134 L.Ed.2d 776 (1996), and cert. denied sub nom. Alaska Federation of Natives v. United States, 517 U.S. 1187 , 116 S.Ct. 1672 , 134 L.Ed.2d 776 (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.