United States Court of Appeals, Ninth Circuit.
The petition for rehearing is denied. The case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. The suggestion for rehearing en banc is therefore rejected. Fed. R.App. P. 35(a).
The opinion filed on June 4, 1999 is amended by the insertion of a footnote on page 5665 of the slip opinion [179 F.3d at 762], immediately following the sentence "The Court then addressed the merits of the appeal." The footnote shall read as follows:
Under the law of this circuit, an entity invoking Eleventh Amendment immunity bears the burden of asserting and proving those matters necessary to establish its defense. See ITSI TV, 3 F.3d at 1291-92. Given that BISM has never argued, either below or on appeal, that state law precluded waiver, we need not address the issue. As the Court said in Wisconsin Dep't of Corrections, "[u]nless the State raises the matter, a court can ignore it." Wisconsin Dep't of Corrections, 524 U.S. at 389, 118 S.Ct. at 2052. This is true of Eleventh Amendment immunity as a whole, and we believe it to be equally true of any matter needed to establish that immunity's applicability in a given context.