                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


NAVAJO NATION,                            No. 13-15710
                 Plaintiff-Appellant,
                                             D.C. No.
                 v.                       3:11-cv-08205-
                                               PGR
U.S. DEPARTMENT OF THE INTERIOR;
RYAN ZINKE, in his official capacity
as Secretary of the USDOI;                   ORDER
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.


                Filed November 6, 2018

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

                         Order;
                 Dissent by Judge Ikuta
2                  NAVAJO NATION V. USDOI

                           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


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 NAVAJO NATION V. USDOI                      3

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 Court precedent.
Because this matter is now moot and the opinion can no
longer be corrected through the court’s en banc process, the
panel should vacate the opinion.


                          ORDER

    This order addresses a procedural issue that arose after
our court published an opinion 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 of this court called sua sponte for a vote to rehear the
case en banc, and our panel ordered the parties to file
responsive briefs. Neither of the parties’ responses argued
that the case met the standard for en banc review under
Federal Rule of Appellate Procedure 35, but the federal
defendants requested panel rehearing and asked that the
majority adopt the dissent’s reasoning.

    On the same day the parties filed their responses, the Hopi
Tribe filed an amicus brief arguing that it is both a sovereign
and a necessary and indispensable party to the Navajo
Nation’s dispute with the defendants. The panel directed the
district court to address the Hopi Tribe’s argument on
remand, and en banc proceedings were suspended.
4                NAVAJO NATION V. USDOI

     Recently, the parties filed a notice of stipulated dismissal
indicating that the Navajo Nation, the federal defendants, and
the proposed intervenor Hopi Tribe had resolved all claims
and filed a stipulated dismissal in the district court. A similar
notice was filed in our court, and our Clerk’s Office treated
it as a motion to dismiss. The parties do not request vacatur,
but one member of the original three judge panel requested
that the opinion published April 6, 2016 be vacated. We
decline to vacate the opinion.

    In U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship,
513 U.S. 18, 29 (1994), the Supreme Court held that
“mootness by reason of settlement does not justify vacatur
of a judgment under review” absent “exceptional
circumstances.” Id. “Where mootness results from
settlement . . . the losing party has voluntarily forfeited [its]
legal remedy by the ordinary processes of appeal or
certiorari” and the court’s judgment is therefore “simply
unreviewable by [its] own choice.” Id. at 25. Bonner also
observed, “[i]t seems to us inappropriate, however, to vacate
mooted cases, in which we have no constitutional power to
decide the merits, on the basis of assumptions about the
merits.” Id. at 27. Because the parties to the present action
have resolved their dispute, we also lack an active case or
controversy.

    In United States v. Payton, a panel from our court
addressed whether its opinion should be vacated because the
dispute in Payton became moot while a sua sponte en banc
call was outstanding. See 593 F.3d 881 (9th Cir. 2010); cf.
Animal Legal Def. Fund v. Veneman, 490 F.3d 725, 726–27
(9th Cir. 2007) (en banc) (Bybee, J., concurring) (vacating a
panel opinion in light of the parties’ settlement—which was
contingent on vacatur—after a majority of the court voted to
                  NAVAJO NATION V. USDOI                           5

take the case en banc and after the court ordered that the
three-judge decision not be cited as precedent). In Payton,
the judge who called the case requested vacatur. The panel
reasoned that vacatur was inappropriate, in part because:
(1) the case was a live controversy when the panel decided it;
(2) the case became moot when the losing party (the
government) voluntarily dismissed the indictment; and (3) the
government was not deprived of an opportunity to contest the
opinion. Payton, 593 F.3d at 885–86.

    It has been two and a half years since our opinion was
published in this matter and the parties’ controversy became
moot as a result of their voluntary settlement. Cases can
settle at anytime, and they frequently settle after they are
remanded to the district court. We agree with the Payton
panel 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.

    Accordingly, the motion to dismiss is GRANTED, and
the request to vacate the April 6, 2016 opinion is declined.

    The mandate shall issue forthwith.



IKUTA, Circuit Judge, dissenting:

    In the published opinion, Navajo Nation v. U.S. Dep’t of
Interior, 819 F.3d 1084 (9th Cir. 2016), the majority held that
an email from a government lawyer confirming that an
agency could continue to implement a government program
constitutes a final agency action. Id. at 1093. This
6               NAVAJO NATION V. USDOI

conclusion is directly contrary to both Supreme Court
precedent, Bennett v. Spear, 520 U.S. 154, 177–78 (1997),
and common sense. In light of this obvious error, a judge on
this court called for a vote to rehear this issue en banc.
Because this matter is now moot and the opinion can no
longer be corrected through this court’s en banc process, the
panel should vacate the opinion. I dissent from its failure to
do so.
