Nation v. U.S. Department of Interior, 110618 FED9, 13-15710

Docket Nº:13-15710
Party Name:Navajo Nation, Plaintiff-Appellant, v. U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the USDOI; National Park Service; Dan Smith, in his official capacity as Deputy Director of the National Park Service; Tom O. Clark, in his official capacity as Park Superintendent, Canyon de Chelly National Monument, ...
Judge Panel:Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges. IKUTA, Circuit Judge, dissenting:
Case Date:November 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Navajo Nation, Plaintiff-Appellant,

v.

U.S. Department of the Interior; Ryan Zinke, in his official capacity as Secretary of the USDOI; National Park Service; Dan Smith, in his official capacity as Deputy Director of the National Park Service; Tom O. Clark, in his official capacity as Park Superintendent, Canyon de Chelly National Monument, Defendants-Appellees.

No. 13-15710

United States Court of Appeals, Ninth Circuit

November 6, 2018

D.C. No. 3:11-cv-08205-PGR

Before: Mary M. Schroeder, Sandra S. Ikuta, and Morgan Christen, Circuit Judges.

SUMMARY

[*]

Native American Graves Protection and Repatriation Act

The court granted the parties' motion for stipulated dismissal, and declined a request to vacate the opinion published in this matter on April 6, 2016. See Navajo Nation v. U.S. Dep't of Interior, 819 F.3d 1084 (9th Cir. 2016).

After the opinion was published, a judge called sua sponte for a vote to rehear the case en banc. On the same day that the parties filed their responses, the Hopi Tribe filed an amicus brief arguing that it was a necessary and indispensable party. The panel directed the district court to address the Hopi Tribe's argument on remand, and en banc proceedings were suspended.

The parties and the Hopi Tribe filed a stipulated dismissal indicating that they had resolved all claims.

The panel noted that because the parties had resolved their dispute, there was no active case or controversy. Pursuant to the holding in United States v. Payton, 593 F.3d 881 (9th Cir. 2010), the panel held that vacatur was inappropriate. The panel's opinion was published two and a half years ago and the parties' controversy became moot as a result of their voluntary settlement. The panel held that an outstanding en banc call does not justify "erasing a decision that the panel issued when the controversy was still live, and that the parties . . . are content to let stand." Id. at 886.

Judge Ikuta dissented. She wrote that the majority holding in the published opinion - that an email from a government lawyer confirming that an agency would continue to implement a government program constituted a final action - was contrary to Supreme...

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