dissenting:
I respectfully dissent.
In these two lawsuits, three Navajo Indians sued El Paso Natural Gas Company, a Delaware corporation, and Cyprus Foote Mineral Company, a Pennsylvania corporation, in Navajo tribal court. The Richards ease alleged death from cancer caused by radiation. The Neztsosies’ case alleged that the Neztsosies and their cattle were poisoned by drinking water contaminated with radiation and heavy metals. The uranium mining occurred many years ago. In ruling on a motion for preliminary injunction, the district court ruled that tribal court proceedings were enjoined as to Price-Anderson claims, but not as to other claims, and did not rule on whether the Price-Anderson Act applied to claims asserted by plaintiffs in tribal court. Plaintiffs did not appeal the injunction against litigating Price-Anderson claims in tribal court, so it should be treated as law of the case. The corporations appealed denial of the preliminary injunction as to all claims not covered by Price-Anderson. The majority opinion lets the plaintiffs sue the corporations in tribal court on all their claims, Price-Anderson or not. That is incorrect.
The Price-Anderson Act, as originally enacted in 1957, did not create a federal tort cause of action, nor confer jurisdiction on the federal courts. Kiick v. Metropolitan Edison Co., 784 F.2d 490, 493 (3d Cir.1986); Stibitz v. General Pub. Util. Corp., 746 F.2d 993, 997 (3d Cir.1984). Congress amended the Act to expand federal jurisdiction to include claims arising from any “nuclear incident.” See O’Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1096 (7th Cir.1994).
The statute provides that federal district courts have original jurisdiction with respect to “any public liability action arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2210(n)(2). Cases brought in state courts “shall be removed” to federal court. Id. “Public, liability” in this statute means “any legal liability arising out of or resulting from a nuclear incident.” 42 U.S.C. § 2014(w). A “nuclear incident” was defined as any occurrence arising out of the hazardous properties of nuclear materials that causes sickness, personal injury or death:
any occurrence, including an extraordinary nuclear occurrence, within the United *621States causing, within or outside the United States, bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material.
42 U.S.C. § 2014(q). I do not think there are any actions that can arise out of sickness or death resulting from the hazardous properties of nuclear material that are not Price-Anderson actions. That should be the end of the ease, because the plaintiffs did not appeal the determination by the district court that Price-Anderson actions could not be asserted in tribal court.
Plaintiffs’ claims for injury and death resulting from nuclear materials left over from uranium mining were Price-Anderson claims or nothing, and Price-Anderson claims must be brought in federal district court. Congress did not leave room for non-federal tribunals to interfere with nuclear development that Congress favored, or foster nuclear development it disfavored. Two circuits' have held that the federal cause of action is exclusive. The Third Circuit stated:
Congress clearly intended to supplant all possible state causes of action when the factual prerequisite of the statute are met____ Congress clearly considered the decisions of our court holding that Congress had not intended to create a federal cause of action for eases not based upon an extraordinary nuclear occurrence---Congress then provided, in the [1988] Amendments Act, the clearest expression of intent that there be a federal cause of action arising directly under the Act.
In re TMI Litigation Cases Consolidated, 940 F.2d 832, 857 (3d Cir.1991). The court concluded, “After the Amendments Act, no state cause of action based on public liability exists. A claim growing out of any nuclear incident is compensable under the terms of the Amendments Act or it is not compensa-ble at all.” Id. at 854 (emphasis in original). In O’Conner v. Commonwealth Edison Co., 13 F.3d 1090 (7th Cir.1994), the Seventh Circuit similarly held: “A claim growing out of any nuclear incident is compensable under the terms of the Amendments Act or it is not compensable at all.” O’Conner, 13 F.3d at 1099.
The majority should not have reached over the head of the parties to reverse on a matter not even raised, whether prosecution of Price-Anderson claims in tribal court should have been enjoined.
Because (1) it is law of the case, not appealed, that the tribal court lacks jurisdiction over Price-Anderson claims, and (2) there are no claims that can be made that are not Price-Anderson claims, it necessarily follows that (3) there are no claims that can be made in tribal court. There can be no claim for which exhaustion in tribal court can be required.
We made a somewhat similar exhaustion doctrine mistake in Burlington Northern Railroad Co. v. Red Wolf, 106 F.3d 868 (9th Cir.), vacated — U.S.-, 118 S.Ct. 37, 139 L.Ed.2d 5 (1997). The Supreme Court made short work of our error, vacating it in a memorandum decision for further consideration in light of Strate v. A-1 Contractors, — U.S. -, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). The Court held in Strate, — U.S. -, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997), that exhaustion in tribal court is not required, where “it is plain that no federal grant of authority provides for tribal governance of nonmembers’ conduct”:
When, as in this case, it is plain that no federal grant provides for tribal governance of nonmembers’ conduct ... covered by [Montana v. United States,' 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) ] main rule, it will be equally evident that tribal courts lack adjudicatory authority over disputes arising from such conduct. As in criminal proceedings, state or federal courts will be the only forums competent to adjudicate those claims. Therefore, when tribal-court jurisdiction over an action such as this one is challenged in federal court, the otherwise applicable exhaustion requirement, must give way, for it would servé no purpose other than delay.
Id. at-n. 14, 117 S.Ct. at 1416 n. 14. The majority has in footnote 5 attempted to limit Strate to its facts, as we might with a poorly reasoned decision of our own that had not *622stood up well over time. We cannot do that with a Supreme Court decision.