Shoshone-Bannock Tribes of the Fort Hall Reservati v. Usdoi

── Shoshone-Bannock Tribes of the Fort Hall Reservati v. Usdoi ── Court: Court of Appeals for the Ninth Circuit Date: April 21, 2026 Category: General FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Nos. 23-35543 SHOSHONE-BANNOCK TRIBES 23-35544 OF THE FORT HALL RESERVATION, Plaintiff-Appellee, D.C. No. 4:20-cv- 00553-BLW v. District of Idaho, Pocatello U.S. DEPARTMENT OF THE INTERIOR; UNITED STATES ORDER BUREAU OF LAND MANAGEMENT; LAURA DANIEL- DAVIS, Principal Deputy Assistant Secretary for Land and Minerals Management, Defendants-Appellants, and J.R. SIMPLOT COMPANY, Intervenor-Defendant. Filed April 21, 2026 2 SHOSHONE BANNOCK TRIBES V. USDOI Before: Michelle T. Friedland and Patrick J. Bumatay, Circuit Judges, and Matthew F. Kennelly, * District Judge. Order; Dissent by Judge Collins; Dissent by Judge Tung; Statement by Judge Tung; Statement by Judges Friedland and Kennelly SUMMARY ** Federal Land Policy and Management Act of 1976 The panel denied a petition for panel rehearing and a petition for rehearing en banc in a case in which the panel majority affirmed the district court’s summary judgment in favor of the Shoshone-Bannock Tribes of the Fort Hall Reservation in their action challenging a land exchange authorized by the Bureau of Land Management under the Federal Land Policy and Management Act of 1976 (the “FLPMA”). Dissenting from the denial of rehearing en banc, Judge Collins wrote that the panel majority incorrectly concluded that the general authorization to conduct land exchanges under the FLPMA does not vitiate a more specific provision of a 1900 law stating that certain ceded lands from the Fort * The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.  SHOSHONE BANNOCK TRIBES V. USDOI 3 Hall Indian Reservation “shall be subject to disposal” only under specified categories of laws. He would conclude that the FLPMA’s disposal authority is applicable here. Dissenting from the denial of rehearing en banc, Judge Tung, joined by Judges Callahan, Bennett, R. Nelson, Bumatay, and VanDyke, wrote that the FLPMA can be harmonized with the 1900 Act. The 1900 Act does not bar the operation of the FLPMA, and the FLPMA must accordingly be given effect to authorize the land exchange here. The panel majority misapplied the 1900 Act to bar the operation of the FLPMA. Respecting the denial of rehearing en banc, Judge Tung wrote in response to Judge Friedland and District Judge Kennelly’s statement. He explained that his reading, reinforced by similar laws seeking to achieve a similar purpose, is compatible with the FLPMA, whereas theirs is not. Respecting the denial of rehearing en banc, Judge Friedland and District Judge Kennelly wrote that, for the reasons explained in the majority opinion, the plain text of the 1900 Act prohibited the Government from conducting this land exchange, and the FLPMA neither repealed nor superseded that Act. They wrote to explain why two new theories about the meaning of the key provision of the 1900 Act raised by Judge Tung’s dissent from the denial of rehearing en banc—that the provision operates merely to (1) preclude disposal under certain preexisting land disposal laws but not later-enacted land disposal laws and (2) ensure use of the land for settlement or productive use—were not persuasive. 4 SHOSHONE BANNOCK TRIBES V. USDOI ORDER Judges Friedland and Kennelly voted to de