The underlying conflict centers on whether the Federal Land Policy and Management Act of 1976 (FLPMA) authorizes the Bureau of Land Management to exchange 416,000 acres of land in Idaho with J.R. Simplot Company, or whether an 1898 agreement ratified by the Act of June 6, 1900, prohibits the disposal.
The Tribes sued to stop the exchange, arguing that the 1900 Act limits disposal of the ceded lands to specific categories of laws, including homestead and mining laws, and that the word "only" in the statute bars the application of the later-enacted FLPMA.
The district court granted summary judgment for the Tribes, holding that the 1900 Act precluded the application of the FLPMA. The Ninth Circuit panel affirmed, concluding that the plain text of the 1900 Act prohibited the government from conducting the exchange and that the FLPMA did not repeal or supersede the earlier statute.
In their dissent from the denial of rehearing en banc, Judge Tung, joined by six other judges, argued that the two statutes can be harmonized. Judge Tung contended that the 1900 Act does not bar the operation of the FLPMA and that the panel majority misapplied the 1900 Act to obstruct the government’s administration of its own property.
Judge Collins also dissented from the denial of rehearing en banc, arguing that the panel majority incorrectly concluded that the general authorization to conduct land exchanges under the FLPMA does not vitiate the more specific provision of the 1900 Act.
In a statement respecting the denial of rehearing en banc, Judges Friedland and Kennelly responded to the dissents, maintaining that the 1900 Act’s use of "only" created an exclusive list of disposal methods that the FLPMA did not modify.
The petitions for panel rehearing and rehearing en banc were denied on April 21, 2026, with no further petitions for rehearing to be entertained.