Cite as 386 F.3d 1169 (9th Cir. 2004)
Community v. Bush, 249 F.Supp.2d 1206 (D.Haw.2003).
The Cetaceans timely appeal. We review the district court’s standing decision de novo. City of Sausalito v. O’Neill, 386 F.3d 1186, 2004 WL 2348385 (filed October 20, 2004); Bernhardt v. County of Los Angeles, 279 F.3d 862, 867 (9th Cir.2002). We agree with the district court that the Cetaceans have not been granted standing to sue by the ESA, the MMPA, NEPA, or the APA. We therefore conclude that dismissal under Rule 12(b)(6) for failure to state a claim was correct, and we affirm the district court.
II. Our Decision in Palila IV
The Cetaceans contend that an earlier decision of this court requires us to hold that they have standing under the ESA. We first address that decision. In Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, 1107 (9th Cir.1988) (“Palila IV”), a suit to enforce the ESA, we wrote that an endangered member of the honeycreeper family, the Hawaiian Palila bird, “has legal status and wings its way into federal court as a plaintiff in its own right.” Id. We wrote, further, that the Palila had “earned the right to be capitalized since it is a party to these proceedings.” Id.
If these statements in Palila IV constitute a holding that an endangered species has standing to sue to enforce the ESA, they are binding on us in this proceeding. Brand X Internet Services v. FCC, 345 F.3d 1120, 1130 (9th Cir.2003) (“three-judge panels are bound by the holdings of earlier three-judge panels”). The government argues that these statements in Palila IV are nonbinding dicta. See, e.g., Hawaiian Crow (ʻAlala) v. Lujan, 906 F.Supp. 549, 552 n. 2 (D.Haw.1991) (characterizing statements in Palila IV as non-binding dicta); Citizens to End Animal Suffering & Exploitation, Inc. v. New England Aquarium, 836 F.Supp. 45, 49 (D.Mass.1993) (same). The district court agreed with the government’s argument. Cetacean Community, 249 F.Supp.2d at 1210 (“As other courts have recognized, however, this statement is dicta and does not constitute precedent binding on this court.”). However, at least two district courts, relying on our statements in Palila IV, have held that the ESA grants standing to animals. Marbled Murrelet v. Pac. Lumber Co., 880 F.Supp. 1343, 1346 (N.D.Cal.1995); Loggerhead Turtle v. County Council of Volusia, Florida, 896 F.Supp. 1170, 1177 (M.D.Fla.1995) (citing Marbled Murrelet). We asked for briefing on whether we should take this case en banc to overrule Palila IV. A majority of the nonrecused judges voted not to take this case en banc.
After due consideration, we agree with the district court that Palila IV’s statements are nonbinding dicta. A statement is dictum when it is “ ‘made during the course of delivering a judicial opinion, but … is unnecessary to the decision in the case and [is] therefore not precedential.’ ” Best Life Assur. Co. v. Comm’r, 281 F.3d 828, 834 (9th Cir.2002) (quoting Black’s Law Dictionary 1100 (7th ed.1999)). The line is not always easy to draw, however, for “where 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.” United States v. Johnson, 256 F.3d 895, 914 (9th Cir.2001) (Kozinski, J., concurring).
When we decided Palila IV, the case had already been the subject of three published opinions, two by the district court and one by this court. Standing for most
