concurring:
On April 24, 1995, this court affirmed the judgment of the district court enjoining construction of a site for the Large Binocular Telescope (LBT) on Peak 10,477 of Mount Graham. We stated: ‘We hold that the AICU does not provide the FS [Forest Service] with the authority to select a site for the LBT other than that indicated in RPA 3 without complying with the ESA and NEPA.” Red Squirrel V, 53 F.3d at 977. On April 25, 1996, the House of Representatives passed as a rider to an appropriations bill the provision that is at issue in this case.
Unpreceded by hearings or committee report, the rider was explained by its sponsor, who asked “Why was this legislation necessary?” and answered his own question by quoting from the losing government brief and the dissenting judge in Red Squirrel V: the language was necessary in order to vindicate these views that the court had rejected. 142 Cong.Rec. H4100 (daily ed. April 25, 1996). The appropriations bill, with the rider virtually irremovable once attached, was passed by the Senate and signed into law by President Clinton on April 26, 1996. Thereafter, appellees, invoking this new legislation, successfully moved the dissolution of the injunction.
A more explicit intervention of Congress into a judicial proceeding would be difficult to imagine. The ESA and NEPA are not amended. How a biological species should be defined is not changed. No new rules are prescribed for the balancing of environmental harms against the acquisition of new knowledge. The more particular terms of the Arizona-Idaho Conservation Act (AICA) are not altered. Instead, an administrative action of the Forest Service (the FS) is legislatively approved and, in addition, the legislature makes its own interpretation of AICA. The legislature’s approval of the action of the FS effectively overrules Red Squirrel V. The legislative interpretation of AICA substitutes Congress’s reading of AICA for that made by this court. In both parts of the statute Congress intervenes to destroy what appeared to be a final judgment of this court.
Intervention of this kind is generally not permitted by our constitutional allocation of power. Plaut v. Spendthrift Farm, Inc., — U.S. -, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995). “A legislature without exceeding its province cannot reverse a determination once made, in a particular case, though it may prescribe a new rule for future cases.” The Federalist No. 81, at 545 (Alexander Hamilton) (J. Cooke ed. 1961). The distinction is evident between upsetting judgment in a decided case and legislating for a class of future cases. In our ease the language of the rider appears to nullify a judgment in a particular case in precisely the way condemned by Plant. See id. at-, 115 S.Ct. at 1456.
In a dictum in Plaut, id. at -, 115 S.Ct. at 1459, however, the court reaffirmed the continuing vitality of a case now over 140 years old, Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 15 L.Ed. 435 (1855). In that case, by a vote of 5 to 4, the Supreme Court upheld an act of Congress turning particular named bridges into post-roads for the passage of the mails, thereby overriding a decree of the Court declaring one of the bridges to be an obstruction of free navigation and directing its removal. The bridge, the Court held, need not be destroyed because the new law created a new legal status for the bridge: by the act of Congress the bridge was “no longer an unlawful obstruction.” 18 How. at 432.
A decision so old, decided by such a closely decided court, and invoked recently only by dicta, would not normally be thought to be dispositive of a constitutional issue, especially when the main sweep of the opinion which notices it is so explicit on the constitutional *559impermissibility of congressional interference with the judicial branch. See Plaut, — U.S. -, 115 S.Ct. at 1453-1456. Wheeling Bridge, moreover, could easily be distinguished from the present case: in Wheeling, Congress created a new fact changing the circumstances in which the injunction operated. What had been merely a nuisance on the river had been metamorphosed into a route for the mails, surely a transformation Congress could accomplish. Nothing of the sort has happened here. No new facts have been created. Congress simply has said that the Ninth Circuit has misinterpreted the law.
Nonetheless, it seems reasonable to suppose that, in the end, the reading of the rider proposed by the appellees will prevail: that is, the words of the rider will be interpreted as effecting an amendment of AICA with only prospective effect and that the distinction offered by Wheeling Bridge will permit the court to find the rider constitutional. When the purpose of Congress is clear and its power indisputable, the form of words that Congress uses should not be captiously or even closely scrutinized. Stockdale v. Insurance Companies, 87 U.S. (20 Wall.) 323, 332, 22 L.Ed. 348 (1873). The general principle that an injunction depends on circumstances and when circumstances change the injunction may change is unassailable. United States v. Swift, 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). The rider is the dispositive new circumstance. In practical effect it does not subvert an existing judgment of this court but creates a new situation in which an injunction against construction is no longer appropriate.
To reach this result will require a judicial gloss on the rider, a kind of operation in which what Congress had power to do is found to be what Congress did do, however open to criticism the language employed. To reach this result then involves the recognition that injunctions are not like final judgments for money damages and that altered circumstances sometimes make alterations in an injunction inevitable. That Congress itself by changing the law has the constitutional power to effect such change in circumstances is established. System Federation v. Wright, 364 U.S. 642, 649-650, 81 S.Ct. 368, 372-373, 5 L.Ed.2d 349 (1961) (citing and applying Wheeling Bridge). Although in my mind it is a close question whether serious questions are presented by the appellants, in the end I am forced to conclude that there is almost no doubt that a conscientious court would give a benign prospective reading to the rider (ignoring its brief legislative history already cited) and hold that there is no question that Congress has the power to change the law so as to deprive an injunction of further effect. Reaching these conclusions, I concur in the order of the court.