Cite as 888 F.3d 418 (9th Cir. 2018)
1171–72. There can be no reasonable argument that the lawyer in Cetacean spoke to, and received instructions from his client, the “Cetacean Community.” Rather, he functioned as a purported next friend, arguing that certain Navy sonar technology injured the members of the “Cetacean Community.” Id.
Third, it is simply incorrect to conclude that an implied holding from a case that did not even address the question—in any form—somehow overrules explicit prior United States Supreme Court and Ninth Circuit precedent. “[U]nstated assumptions on non-litigated issues are not precedential holdings binding future decisions.” Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir. 1985); see also Morales-Garcia v. Holder, 567 F.3d 1058, 1064 (9th Cir. 2009) (stating that panels are bound by “prior decision[s],” but “the term ‘decision, however, encompasses only those issues that are raised or discussed” (citations omitted) ). Indeed, Cetacean itself noted: “ ‘[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.’ ” Cetacean, 386 F.3d at 1173 (emphasis added) (quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (Kozinski, J., concurring) ); see also Brecht v. Abrahamson, 507 U.S. 619, 630–31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (refusing to follow prior cases where the issue had not been “squarely addressed”). Rather, the appropriate reading of Cetacean, because a three-judge panel cannot overrule a prior panel, see Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc), is that the Cetacean panel (1) ought not have reached the question it did; and (2) the fact that it seemed to conclude that an animal may have Article III standing does not remove the appropriate standing question that determines if the next friend may bring the action at all. It is simply unsupportable to conclude that a panel that did not address an issue somehow overrules prior binding decisions that did address the issue.
Fourth, the simple fact that Cetacean found that animals could have an Article III injury does not, automatically, create some form of right for third-parties to advance those claims (or, make next-friend standing nonjurisdictional and, as the Majority holds, simply inapplicable)! There are a multitude of Article III injuries that occur regularly, which people choose not to pursue. Because the individual with the injury opts not to pursue the claim does not somehow make the injury “public domain,” so any random entity may bring the claim. Next-friend standing serves as a bar to such meddling, and Cetacean did not impliedly eviscerate that conclusion.
Not only did Cetacean not address animal next-friend standing, but no court has ever done so. See Mount Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1448 n.13 (9th Cir. 1992) (“No party has mentioned and, notwithstanding our normal rules, we do not consider, the standing of the first-named party [Mount Graham Red Squirrel] to bring this action.”); Palila v. Hawaii Dep’t of Land & Nat’l Res., 852 F.2d 1106, 1107 (9th Cir. 1988) (“As an endangered species …, the bird … also has legal status and wings its way into federal court as a plaintiff in its own right.” (emphasis added) ), abrogated in part by, Cetacean, 386 F.3d at 1173 (9th Cir. 2004) (“Palila IV’s statements [regarding standing] are nonbinding dicta.”); Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F.Supp. 45, 49–50 (D. Mass. 1993) (finding named dolphin, Kama, lacked standing because “[t]he MMPA does not authorize suits brought by animals,” and
