With 28 judges, over 3,276 combinations of panels are possible. In reality, because of the court’s frequent use of senior and visiting judges, the number of possible combinations is much higher and will increase with the addition of each new judge. The problems this situation creates are evident: the range and diversity of panels that decide cases that involve similar issues inevitably contributes to conflicting and unpublished opinions, reduced communications and congeniality among judges, and inconsistency in the court’s decisions. Conflicting opinions, particularly published opinions, create uncertainty in that others faced with the same issue have no guidance on the proper course of action.

These problems are magnified tremendously for the states whose impact is dwarfed by the heavily populated states in the Circuit. Alaska’s cases constituted only 2 percent of the court’s caseload in 1997. Only 12 circuit judges were assigned to all the Alaskan cases published in 1997. Given the relatively few Alaskan cases compared to the whole, Alaskan litigants are far less likely than litigants in the heavily populated states to draw panels with judges who are familiar with Alaska. This is aggravated by the fact that Alaskan cases often involve complex federal statutes the judges do not encounter in the other 98 percent of the court’s caseload, the Alaska Native Claims Settlement Act (ANCSA) and the Alaska National Interest Lands Conservation Act (ANILCA).

These two important Congressional acts granted 44 million acres of lands to corporations owned by Alaska Natives and added over 104 million acres of lands to federal conservation system units in Alaska, respectively. These statutes apply only to Alaska, so the issues they generate--which have totaled more than 100 cases in the Ninth Circuit over the past 20 years--arise only in Alaska cases. The issues these cases address have varied tremendously, from the interpretation of revenue-sharing provisions to the question of extinguishment of Indian country, and each case required an understanding of the history, purposes, and context of complex legislation. Despite the court’s myriad decisions involving ANCSA and ANILCA, Alaskan litigants raising claims under these statutes are highly unlikely to be assigned a panel of judges with a depth of understanding of these federal laws because of the large number of circuit, senior and visiting judges.

The large number of panel combinations and small percentage of Alaskan cases also disproportionately impact the court’s ability to equitably resolve Alaskan cases because the panels are less likely to know and understand the significant social, economic, and geographical differences that Alaska presents. In order to reach just results, a court must have a good degree of understanding about its constituency, so it can appreciate the legally relevant facts of the case. Even laws that are not exclusive to Alaska cannot be interpreted without a contextual basis. Some aspects of life in Alaska are remarkably different than life in other western states, but this may not be readily apparent to a judge from California or Arizona reading a brief. For example, in Alaska an easement or a river might have the significance given to a major highway in another state. Water rights are of relatively little importance in Alaska as compared with other western states. Independent thinking, living off the land, and overcoming the challenges presented by isolation and vast distances between communities are central elements of the collective identity and experience of Alaskans. Regardless of how well intentioned the judges might be, if their opinions reveal a lack of depth of understanding about a place or people, the result can seem patronizing or even offensive to the people affected. Generally any misperceptions are subtle, but occasionally they can be glaring.

One of the more demonstrative cases in this regard addressed a definitional provision of ANILCA. Title VIII of ANILCA grants a priority for hunting and fishing for subsistence purposes to rural residents in Alaska. The case raised the issue of whether the Kenai Peninsula is "rural." In Alaska, "rural" has a very definite and well-understood meaning. "Rural Alaska" means bush Alaska: self-dependent, isolated communities generally unconnected to Alaska’s roads or railways. The State defined the term to encompass these communities by excluding areas characterized primarily by a cash economy. The Ninth Circuit reviewed the State’s interpretation of the word and rejected it out of hand, calling it "unusual" and "exotic." The judges could not conceive that "rural" might have a different meaning in Alaska than it does in the realm of their experience. The panel complained that the State's definition would exclude practically all areas of the United States that it thought of as rural, including virtually the entirety of such farming and ranching states as Iowa and Wyoming. The court remarked that the term rural "is not difficult to understand" and "is not a term of art," but is "a standard word in the English language commonly understood to refer to areas of the country that are sparsely populated, where the economy centers on agriculture or ranching." Kenaitze v. State, 860 F.2d 312, 316-17 (9th Cir. 1988).

Nevertheless, "rural" simply does not have that meaning in Alaska, and Alaskans worked closely with the Alaska delegation and Congress in drafting this part of ANILCA. The Ninth Circuit’s failure to lend any deference to the State’s interpretation and instead to impose on Alaska its perceptions of the world changed the scope and impact of the statute. Undoubtedly the court was well-intentioned, but its lack of understanding was so evident that regardless of the equity of the result, the decision makes Alaskans feel alienated.

The possibilities for this type of misunderstanding increase as the number of judges in the Ninth Circuit increase, because any given judge becomes less likely to hear Alaskan cases and thus to familiarize himself or herself with Alaska. Unfamiliarity could impede judgment on many types of issues, such as whether a federal action has a significant impact and thus requires an Environmental Impact Statement, or whether the action of a federal agency in Alaska is reasonable. In order to be well served by a federal court of appeals, a state must either be sufficiently large to generate enough cases so that each judge frequently hears one, or similar enough to the larger states so that the judges’ infrequent contact is inconsequential. Compared to the heavily populated states of the Ninth Circuit, Alaskan cases are neither frequent nor similar.

Another issue about which the commission undoubtedly has heard testimony already is the timeliness of Ninth Circuit appeals. The clerk’s office has informed me that the present wait for oral argument is one year after briefing is complete. This delay can be even longer for Alaska cases, however, because of the yearly visit of a panel of judges to Alaska. According to the clerk’s office, some Alaskan cases are held longer in order to schedule them for the summer arguments in Alaska. The need of the calendering staff to schedule arguments in this way is understandable, but it is another example of how a distant state such as Alaska is impacted by the size of the court differently than is a state such as California.

Alaska also suffers because of its distance from the court, as experienced in the inordinate delay in the court’s service of orders and decisions to litigants in Alaska. These delays sometimes have caused serious problems for attorneys in my office. For example, a year and a half ago the court issued a decision in Alaska v. Native Village of Venetie Tribal Gov’t, No. 96-35042 (101 F.3d 1286). The court issued the decision on November 20, 1996, but the State did not receive a copy of it until November 25, five days later. The Associated Press obtained a copy immediately, and called me for comment on a case I did not even know had been decided.

Of equal concern is the service of orders that trigger a deadline when issued. Again, in the Venetie case, the court denied the State’s petition for rehearing on January 6, 1997. As you know, under Federal Rule of Appellate Procedure 41(a), a party has only seven days to seek a stay of the mandate after denial of a petition for rehearing. The State did not receive the court’s order until January 14, the day after the mandate normally would have issued automatically. Fortuitously, a state attorney heard about the order through a non-Alaskan party several days after issuance and we had just enough time to move for an extension of time to request a stay.

Another recent example within the last year involved a news reporter who called a State attorney and informed him that the court had issued an injunction ordering the State to immediately stop construction on a road, in Alaska Center for the Env’t v. Armbrister, No. 97-35503. The clerk had called opposing counsel about the injunction and opposing counsel had spoken to the press. The clerk did not notify us, even though the State was the party subject to the stop-work order. When the State’s attorney called the clerk’s office to ask about the order, the staff member acknowledged its existence, but refused to fax it. The attorney asked the clerk how he was to advise his client if he could not see the order for several days, and the clerk offered to read it to him. The attorney eventually convinced a reluctant supervisor to fax the order.

Litigants in Alaska should not have to rely on reporters and other parties to receive timely notice of orders; the court should make sure that litigants receive them immediately. Even though we now are able to obtain decisions from the Internet the day after issuance, I still believe that the court should notify the parties of a decision before releasing it to the public. In that regard, I commend to the commission the Alaska Supreme Court’s practice of providing copies of decisions to parties four hours in advance of public distribution. This practice has the salutary effect of allowing counsel to review the opinion and confer with the client about it and its ramifications before the public inquiries begin. Especially as a representative of a public institutional litigant, I appreciate the ability to inform my client and the public about the Alaska Supreme Court’s decisions in a deliberative way. This is in marked contrast to my experience in the last 18 months with two Ninth Circuit decisions of highest interest to the Alaska public in which I and Governor Knowles were ambushed by reporters with decision in hand before my office had heard of--much less received--the decisions.

In summary, the Ninth Circuit should be split to create a new circuit, for the following reasons:

1. The Circuit’s vast geographical area, and its large and growing population;
2. The court has grown too large in terms of the number of judges and number of cases it must handle;
3. The judges’ lack of familiarity with Alaska’s unique issues, and its people and culture;
4. The judges’ lack of familiarity with the complex and specialized matrix of laws that apply to Alaska; and
5. The length of time it takes to obtain a decision from the Ninth Circuit; "justice delayed is justice denied."

Thank you for the opportunity to express my opinions about the Ninth Circuit. I hope that the commission will consider the interests and concerns of Alaska and its citizens.