concurring in the result reached in the opinion authored by BOYLE, Justice, and specifically concurs in Parts III, IV, and V.
I.
The doctrine of law of the case has long been a rule in Idaho. Suitts v. First Security Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985), citing inter alia, Richard v. Jarvis, 44 Idaho 403, 258 P. 370 (1927), and Creem v. Northwestern Mutual Fire Association, 58 Idaho 349, 74 P.2d 702 (1938). In the Suitts 1985 opinion this Court stated unequivocally that this Court’s opinion in the prior 1979 case between the same plaintiff and the same defendant represented the law of the case and on the remand was binding upon the trial court.
In Richards v. Jarvis, this Court stated: “The conclusions of this court upon the first appeal established the law of the case for the guidance of the trial court and should have been followed.” 44 Idaho 403, 406, 258 P. 370, 370 (1927). In the Creem case this Court said, responsive to a contention that the trial court in proceedings following remand had not followed this Court’s prior decision, that the appellant so asserting was in error. Creem, 58 Idaho at 351, 74 P.2d at 702. Justice Ailshie joined by Chief Justice Sullivan in Hall v. Blackman, 9 Idaho 555, 75 P. 608 (1904), observed as to a doctrine that the ruling or holding on a point of law is available as authority in other cases to be followed and thus affirmed or to be modified or overruled according to its intrinsic merits, but in the very case in which a ruling or holding is made it is binding in all further proceedings. Hall v. Blackman, 9 Idaho 555, 75 P. 608. It is thus established that law of the case is firmly entrenched in Idaho jurisprudence, and has been since almost immediately following statehood.
II.
It has been suggested that this Court, in the instant case and under the attendant circumstances is somehow bound by the law of the case doctrine, as to what the Court of Appeals wrote in Alumet I, and then Alumet II.2 However, pursuit of that notion seemingly has not been renewed. Moreover, this Court, responding to appellants’ petition for review of Alumet II, supported by briefs, granted review, and the same issues which were passed on by the Court of Appeals are now squarely before us. It has been well established that when review has been granted, this Court turns directly to the decision of the trial court and examines proceedings in that court as relative to claimed error, nevertheless remaining cognizant of the views and rulings of the Court of Appeals. When our review is concluded and should we reach a decision contrary to that reached by the Court of Appeals, the opinion announcing this Court’s decision is the ultimate and final termination of the case.3 The decision and opinion of the Court of Appeals at that point becomes functus officio, other than that this Court may have repeated and relied upon excerpts contained therein. Hopefully the remarks which I have proffered will make it clear that conclusions reached by the Court of Appeals, although binding on the district courts as law of the case, do not and cannot in any manner preclude this Court from reaching its own conclusions.
III.
When we were presented with Alumet’s request that we grant review of the Alumet II opinion of the Court of Appeals, in *956order to cast an informed vote, it was necessary to undertake a considerable review of the prior proceedings, and certainly not out of order to review this Court’s decision in the Archer case, 102 Idaho 852, 642 P.2d 943. In Archer the primary issue which was decided revolved around the Archer contention that his lessee, Mountain Fuel Supply, and its codefendant, Beker Industries Corporation, a Delaware corporation, were by the terms of an executed agreement, and in particular the royalty provisions thereof [paragraph 4] expressly required to mine and develop the leasehold property, if not expressly, then impliedly. Archer, 102 Idaho at 853-54, 642 P.2d at 944-45. The district court, Judge Rasmussen, had held for the codefendants, and against Archer. A unanimous Supreme Court affirmed, pointing out that:
An example of language expressly obligating a party to produce from leased property is found in Section 2(d) of the underlying Dry Valley Lease between the Archers and the Department of the Interior, which provides
Sec. 2. In consideration of the foregoing, the lessee hereby agrees:
(d) Minimum production. To prospect diligently the leased lands and beginning with the fourth year of the lease, except when operations are interrupted by strikes, the elements, or casualties not attributable to the lessee, or unless operations are suspended as provided in section 39 of the act, to mine each year the leased deposits and pay a royalty thereon to a value of $1 an acre or fraction thereof. The lessee may, at any time prior to the end of the thirtieth month of this lease, file a petition with the Mining Supervisor to have the minimum production specified herein changed to a lesser figure, supporting such petition by the required showing and if the lessor finds that the facts warrant such action, he will change the requirement to a lesser figure.
An identical provision appears in the Wallentine Ranch lease which was ultimately issued to Mountain Fuel. Since the Archers were lessees under the original lease, it is manifestly evident that they were aware that language expressly obligating lessees to mine could have been included in the lease with Mountain Fuel. We draw no inferences from the absence of such language in the Archer/Mountain Fuel agreement. We simply note that it is not present.
Archer, 102 Idaho at 854-55, 642 P.2d at 945-46 (emphasis in original) (footnote omitted). In holding that the 1962 agreement contained no express provision obligating the lessees to mine, our opinion noted:
There is no language in paragraph 4 that could possibly be construed as such a covenant. While the paragraph does address royalties for ore mined, and it would be useless to discuss royalties unless the parties contemplated mining the property — indeed, the sole purpose of the lease was to allow Mountain Fuel to mine the property — there is a tremendous difference between assigning the right to mine certain property, subject to a condition that royalties be paid, and imposing an obligation to mine property.
Archer, 102 Idaho at 855, 642 P.2d at 946 (emphasis in original). As to an Archer contention that a court had “imposed an implied-in-law obligation to mine, separate and apart from the language of an agreement, where substantial consideration was paid in exchange for a mining lease” we were not persuaded, noting that “[a]n obligation to mine and develop can be an onerous burden, for example when market conditions are such that development would surely result in a net loss to the lessee.” Archer, 102 Idaho at 856, 642 P.2d at 947.
IV.
It is without question that this Supreme Court is the court of last resort, insofar as the doctrine of law of the case is concerned. That being so, I am unable to accept Justice Boyle’s quotation of a passage from Insurance Associates Corp. v. Hansen, 116 Idaho 948, 950, 782 P.2d 1230, 1232 (1989): “Accordingly, the facts having been decided, they are final, they have be*957come the law of the case, and the Court of Appeals' pronouncement must be adhered to, both in the trial court and on subsequent appeal.” At 119 Idaho 979, 812 P.2d 286 (1991). That statement made by Justice Bakes, would be generally correct if we were considering the principle of res judicata, which we most assuredly are not doing. But more than that, the language of the preceding sentences in the paragraph necessarily have to be considered. It was not that the “facts had been decided” which was erroneously treated as law of the case, and which would be res judicata and not at all be law of the case, but what did involve law of the case was that “the Court of Appeals expressly ‘concluded that the findings of fact made by the district court are supported by the evidence, are not clearly erroneous, and, should not be set aside.’ ” Insurance Associates, 116 Idaho at 950, 782 P.2d at 1232 (emphasis added).
As is readily noted in Justice Boyle’s opinion, at 119 Idaho at 955, 812 P.2d at 262, he speaks both of res judicata and law of the case interchangeably in discussing the implied covenant to mine:
The time for appeal on this issue has long passed and it is, therefore, res judicata as to the implied covenant to mine in this particular case. See Boundary County, Idaho v. Woldson, 144 F.2d 17 (1944), cert. den, 324 U.S. 843 [65 S.Ct. 678, 89 L.Ed. 1405] (1945).
We therefore hold as the law [of the case] in this case, that the lease agreement between the parties contains an implied covenant to actively mine the leased premises.
Additionally, Justice Boyle seemingly feels the need to bolster the Insurance Associates quotation by stating: “[S]ee also Airstream, Inc. v. CIT Fin. Servs., Inc., 115 Idaho 569, 768 P.2d 1302 (1988); Barker v. Fischbach & Moore, Inc., 110 Idaho 871, 719 P.2d 1131 (1986) [Matter of Barker ]; Suitts v. First Security Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985).” Those cases were indeed Idaho authority on law of the case doctrine. Both Airstream and Suitts were authored by me, and in Barker, I authored a concurring and dissenting opinion, portions of which are hereinafter displayed while law of the case is presently center stage:
I know of no principle of law which absolutely prohibits this Court — any appellate court — from rectifying its own error — especially when a just respect for a court’s duty to attempt the achievement of justice has been activated.
I concede that the doctrine of law of the ease has been recognized in Idaho as in other jurisdictions. In Neilsen and Co. v. Cassia and Twin Falls County Joint Class A School District, 103 Idaho 317, 647 P.2d 773 (1982), the Court of Appeals recognized that it could not review a finding of the Supreme Court on a prior appeal in the same case. A general proposition of law is that an inferior court is ordinarily bound by a higher court’s determination, with some few exceptions. 5 Am.Jur.2d Appeal and Error § 744.
However stringently the law of the case doctrine may bind inferior courts, it is a different matter where the question comes up in the same appellate court. That doctrine, however, is not binding on appellate courts which on a second appeal perceive that their prior appellate decision was in error. The Arizona Supreme Court, after recognizing that the doctrine was well-established in that state, went on to say:
While some courts insist that the doctrine should be applied at all times, 3 Am.Jur. 547, others create an exception where it appears the former decision was palpably erroneous. An abundance of authority from many jurisdictions sustains this latter principle. For example the Supreme Court of California sixteen years ago rejected the doctrine that the law of the case absolutely precluded reexamination of a manifestly unjust decision.
‘ * * * The doctrine of the law of the case is recognized as a harsh one (2 Cal.Jur. 947) and the modern view is that it should not be adhered to when the application of it results in a mani*958festly unjust decision. United Dredging Co. v. Industrial Ace. Comm., 208 Cal. 705, 284 P.2d [P.] 922. ...’
We are of the opinion that a ruling on one appeal if manifestly or palpably erroneous is not to be treated as conclusive on subsequent appeal of the same case. We are of this view because courts exist but for the ultimate purpose of establishing justice. If we adhere rigidly to an arbitrary principle of convenience and declare as our decision that which is clearly wrong and which we know to be wrong, then we are defeating the purpose for which courts exist. Moreover, we are in effect saying that it is of no consequence to us that justice had not in the end prevailed. Sibley v. Jeffreys, 81 Ariz. 272, 305 P.2d 427, 429-30 (1956).
As summarized in 5 Am.Jur. Appeal and Error, § 750:
However, since the doctrine of the law of the case is merely one of practice or court policy, and not of inflexible law, so that appellate courts are not absolutely bound thereby, but may exercise a certain degree of discretion in applying it, there are many holdings in which the courts have retreated from any inflexible rule requiring the doctrine to be applied regardless of error in the former decision, and it has been said that the doctrine should not be utilized to accomplish an obvious injustice, or applied where the former appellate decision was clearly, palpably, or manifestly erroneous or unjust. (Footnotes omitted) (emphasis added).
The Montana Supreme Court has put in thusly: ‘[T]he evils of adherence to the rule are sometimes greater than those of a departure from it.’ State v. Hale, 129 Mont. 449, 291 P.2d 229 (1955). The Supreme Court of New Mexico wrote that an appellate court ‘should apply the law of the land rather than the law of the case. Farmer’s State Bank v. Clayton National Bank, 31 N.M. 344, 245 P. 543 (1925).
Matter of Barker, 110 Idaho 871, 873-74, 719 P.2d 1131, 1133-34 (1986) (footnote omitted, emphasis in original).
Law of the case, however, while similar, is broader in scope than res judicata. More importantly, that which may properly be seen as barred by res judicata, is not so barred when the involved principle is law of the case, especially where this, the highest appellate court is ultimately involved and bears the burden of coming down with the final conclusion, and hopefully the correct one. A law of the case announcement from this Court will be binding in any further proceedings in all of the lower courts; however, a law of the case announcement from the Court of Appeals, while it will be binding on the district courts, does not at all fetter this Court’s authority to intervene and rule otherwise should it see fit to do so.
Justice Boyle has written that: “We therefore hold as the law [of the case] in this case, that the lease agreement between the parties contains an implied covenant to actively mine the leased premises.” Dealing with that declaration, solely to address a matter of proper nomenclature, it is the conclusion of a court which becomes the law of the case. Moreover, that the Court of Appeals has heretofore announced the law of the case is true, but with binding effect only insofar as courts inferior to it are concerned. It is because they are inferior courts that they must follow the law of the case as it has been declared by either of the appellate courts, meaning this Court or the Court of Appeals.
Accordingly, I do not agree with, or concur in Justice Boyle’s opinion as to that one particular point. The Court of Appeals, on becoming involved, probably did have the authority to impress onto the lease agreement of the parties an implied covenant to actively mine the leased premises. In doing so, however, it may have been usurping the function of the trial court. It did restrict the district court to making the determination of Alumet’s mining obligations as to how much and how soon.
*959However, it is at the bargaining stage of a lease agreement that all covenants should be agreed upon and spelled out with specificity. Leslie Dana Pech, in the summary of her law review article, Agreement Clauses We Wish We Had (Or Didn’t Have), 29 Rocky Mountain L.Inst. 241, cautioned as much:
The past few years have provided many events which the mining industry would have thought impossible and the future will bring new, unexpected events. What we have experienced recently should not be forgotten when the ‘present’ is again on the upswing. All mining agreements, like any other contract or document, should be drafted carefully, precisely, and with a knowledge of the mineral commodities sought and the specific property position. All agreements should anticipate and provide for the occurrence of negative events. When difficult times occur, it is often too late or impossible to renegotiate or restructure an agreement. The penalties to the lessee company can be, and often are, serious.
Where the parties failed to draft and execute an agreement which dealt fully with all of the probabilities as to what might come to pass, it is not readily understood how or why it is that the courts of Idaho should rewrite the agreement which the parties had entered into. Such is and forever has been the function of attorneys, and a function undertaken and concluded before the parties find themselves involved in costly litigation because of neglecting to ascertain that all of the bases had not been covered.
The history of this continuing litigation was well set out by Judge Walters in authoring the Court of Appeals first decision in Alumet I. That decision “concluded that the district court erred in determining that the lease contained an express covenant to develop.” 112 Idaho at 445, 732 P.2d at 683. In ruling that there was no expressly stated covenant to develop, it went on to add that missing from the lease were any provisions which detailed or even mentioned any promises (covenants, guarantees) that “development will proceed through certain stages within specified times, or that, alternatively that specified sums will be expended during each period for exploration.” 112 Idaho at 445, 732 P.2d at 683.
The Court of Appeals, although it held the district court erred in finding an express covenant, proceeded to declare its belief “that the district court’s analysis reflected the obvious conclusion that development of a mine was contemplated by the parties, ... and that an ongoing mining operation was contemplated by the parties.” 112 Idaho at 445, 732 P.2d at 683. Just as all that glitters is not gold, all that is “contemplated” does not rise to the status of contractual covenants. Seemingly, it would go without saying that where two or more parties have entered into a written lease agreement of a property which one of the parties possessed under a Department of Interior lease, it would be highly unusual if the lease agreement was not entered into in the pursuit of a supposedly profitable venture for all concerned.
The Court of Appeals in Alumet I turned to the Pech law review article4 for the factors to be included when fashioning a lessee’s implied covenant to actively mine. 112 Idaho at 445, 732 P.2d at 683. Following which after further discussion it directed the district court on remand to recognize an implied covenant to mine under the lease — not just as a general principle of law, but meaning the particular lease agreement which the parties had executed.
It is primarily on the foregoing basis that at first blush I questioned the authority of the Court of Appeals to direct how the lease agreement should be judicially modified, and simultaneously mandate that the district court follow its directions as to how proceedings on remand should be conducted. The parties are all bound by the terms of the negotiated lease agreement to which *960they affixed their signature, and it should be so held. Courts should be indeed loathe to add judicial embellishment. The error on the part of the Court of Appeals should not too readily be overlooked. Its directions to the trial court, Judge Woodland, appear to have been the proximate cause of the controversy which is still ongoing.
In closing, I suggest that one major factor which has eluded discussion is the specially concurring opinion which Judge Burnett issued in Alumet II on denial of rehearing where he delved into the lack of a habendum clause in the mining lease agreement. There is a wealth of material contained in that opinion, but apparently it has gone unnoticed by the litigants.
. Alumet v. Bear Lake Grazing Co., 112 Idaho 441, 732 P.2d 679 (Ct.App.1986) (Alumet I); Alumet v. Bear Lake Grazing Co., 119 Idaho 979, 812 P.2d 286 (Ct.App.1989) (Alumet II). A prior case. Archer v. Mountain Fuel Supply Co., 102 Idaho 852, 642 P.2d 943 (1982), involved the same property, but not the same parties nor the same trial judge.
. Keeping in mind, of course, that the time in which to petition for rehearing has expired without rehearing being sought.
. Leslie Dana Pech, Agreement Clauses We Wish We had (or Didn't Have), 29 Rocky Mountain L.Inst. 241.