Bernice Nelson v. Office of Navajo and Hopi Indian Relocation

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] Bernice Nelson, ) No. CV-25-08057-PCT-SPL ) [9] ) 10 Plaintiff, ) ORDER vs. ) ) [11] ) Office of Navajo and Hopi Indian ) [12] Relocation, ) 13 ) ) 14 Defendant. ) 15 Before the Court are Plaintiff’s Motion for Summary Judgment (Doc. 20) and 16 Defendant’s Cross-Motion for Summary Judgment (Doc. 28). Both Motions have been 17 fully briefed. For the reasons that follow, Plaintiff’s Motion will be denied and Defendant’s 18 Cross-Motion will be granted.1 19 I. BACKGROUND 20 A. The Settlement Act 21 The Navajo–Hopi Settlement Act (the “Settlement Act”) authorized a court-ordered 22 partition of land previously referred to as the Joint Use Area—which was occupied by both 23 Navajo and Hopi residents—into the Navajo Partitioned Lands (“NPL”) and the Hopi 24 Partitioned Lands (“HPL”). See Pub. L. No. 93-531, § 12 , 88 Stat. 1716 (1974); Clinton v. 25 Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). The Settlement Act also created what is now [26] 27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. [28] R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 the Office of Navajo and Hopi Indian Relocation (“ONHIR”) to disburse benefits to assist 2 with the relocation of Navajo and Hopi residents who then occupied land allocated to the 3 other tribe. Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119 , 1121–22 4 (9th Cir. 1989). 5 B. Factual and Procedural Background 6 Plaintiff Bernice Nelson is an enrolled member of the Navajo Nation. (Doc. 1 at 4, 7 ¶ 10). This is Plaintiff’s second action in federal court seeking judicial review of OHNIR’s 8 denial of relocation benefits. (Id. at 1). On July 25, 2005, Plaintiff filed an Application for 9 Relocation Benefits, which was denied by ONHIR. (Doc. 19-1 at 32–35, 49–50). ONHIR’s 10 denial letter stated that the agency found that Plaintiff did not reside on the HPL. (Id. at 11 49). Plaintiff appealed, and a hearing was held before an Independent Hearing Officer 12 (“IHO”) on December 7, 2012. (Id. at 114). On February 22, 2013, the IHO denied 13 Plaintiff’s appeal and upheld OHNIR’s denial of benefits based on a finding that Plaintiff’s 14 “legal residence transferred from Finger Point to wherever her mother moved upon 15 marriage in 1978 as [Plaintiff] was a 16 year old dependent minor . . . even though her 16 physical residence remained at Finger Point.” (Id. at 186). The IHO further found that when 17 Plaintiff became a head of household in 1979, “she was a legal resident of an area other 18 than Finger Point.” (Id.). On April 29, 2013, ONHIR issued a Final Agency Action in 19 Plaintiff’s case. (Id. at 190). 20 On August 18, 2017, Plaintiff initiated an action seeking judicial review of 21 ONHIR’s denial of relocation benefits. (Doc. 19-2 at 5–17). The parties filed Motions for 22 Summary Judgment, but on April 5, 2019, Defendant ONHIR filed a Motion to Remand. 23 (Id. at 191–Doc. 19-3 at 4). The Court granted Defendant’s Motion for voluntary remand 24 because, although Plaintiff opposed the remand, “[b]oth parties agree[d] that there [were] 25 inadequacies in the administrative decision.” (Doc. 19-3 at 26). 26 On remand, the parties each hired an investigator “to assist with development of the [28] 1 record.” (Doc. 19-4 at 161). A remand hearing took place on May 8–9, 2023.2 (Doc. 19-3 2 at 54–68). The IHO once again denied Plaintiff’s appeal and upheld the denial of relocation 3 benefits. (Doc. 19-4 at 160–Doc. 19-5 at 10). The IHO again found that Plaintiff had “not 4 met her burden to establish by a preponderance of the evidence that she was a legal resident 5 of the HPL on December 22, 1973, and December 22, 1974” or that she was a resident 6 when she became a head of household in 1979. (Doc. 19-5 at 10). On December 22, 2023, 7 the IHO denied Plaintiff’s request for reconsideration. (Doc. 19-6 at 42). ONHIR then 8 issued a Final Agency Action on January 17, 2024. (Id. at 44). On March 17, 2025, Plaintiff 9 initiated this action seeking judicial review of ONHIR’s denial of relocation benefits. (Doc. 10 1). 11 II. LEGAL STANDARDS 12 A. Summary Judgment 13 Generally, summary judgment should be granted when “there is no genuine dispute 14 as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 15 Civ. P. 56(a). When conducting judicial review of an administrative agency’s action, “there 16 are no disputed facts that the district court must resolve.” Occidental Eng’g Co. v. Immigr. 17 & Naturalization Serv., 753 F.2d 766 , 769 (9th Cir. 1985). Rather, “the function of the 18 district court is to determine whether or not as a matter of law the evidence in the 19 administrative record permitted the agency to make the decision it did.” Id. Summary 20 judgment is therefore “an appropriate mechanism for deciding the legal question of 21 whether [an] agency could reasonably have found the facts as it did.” Id. at 770. 22 B. APA Standards of Review 23 The Court’s review of the IHO’s decision under the Settlement Act is governed by 24 the Administrative Procedure Act (“APA”). See Hopi Tribe v. Navajo Tribe, 46 F.3d 908 , 25 914 (9th Cir. 1995). Under the APA, the Court must uphold agency action unless it was 26 “arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported [27] 2 The hearing was originally set for January 31, 2020 but “was postponed for several 28 reasons.” (Doc. 19-4 at 187). 1 by substantial evidence.” Bedoni, 878 F.2d at 1122. 2 An ONHIR decision satisfies the “arbitrary and capricious” standard if “the agency 3 examine[s] the relevant data and articulate[s] a satisfactory explanation for its action, 4 including a rational connection between the facts found and the choice made.” Hopi Tribe, [5] 46 F.3d at 914 (internal quotation marks omitted). This scope of review is narrow, and the 6 Court may not “substitute its judgment for that of the agency.” Id. (internal quotation marks 7 omitted). Still, a decision is arbitrary and capricious “if the agency . . . entirely failed to 8 consider an important aspect of the problem, offered an explanation for its decision that 9 runs counter to the evidence before the agency, or is so implausible that it could not be 10 ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. 11 Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Likewise, 12 if an agency “fails to follow its own precedent or fails to give a sufficient explanation for 13 failing to do so,” its decision is arbitrary and capricious. Andrzejewski v. Fed. Aviation 14 Admin., 563 F.3d 796, 799 (9th Cir. 2009). 15 An agency’s decision satisfies the “substantial evidence” standard if it is supported 16 by “such relevant evidence that a reasonable mind might accept as adequate to support the 17 conclusion.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). The standard requires 18 “more than a mere scintilla but less than a preponderance” of evidence. Id. The IHO may 19 “draw inferences logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450 , 20 1453 (9th Cir. 1984). “Where evidence is susceptible of more than one rational 21 interpretation,” the IHO’s decision must be upheld. Id. 22 C. The Settlement Act and Associated Regulations 23 A Navajo applicant is eligible for benefits under the Settlement Act if he was a legal 24 resident of the HPL as of December 22, 1974 and was a head of household at the time he 25 moved off of the HPL. 25 C.F.R. §§ 700.147 (a), 700.69(c); Begay v. Off. of Navajo & Hopi 26 Indian Relocation, 305 F. Supp. 3d 1040, 1044 (D. Ariz. 2018), aff’d, Begay v. Off. of 27 Navajo & Hopi Indian Relocation, 770 F. App’x 801 , 802 (9th Cir. 2019). The applicant 28 bears the burden of proving both the residency and head-of-household elements. 25 C.F.R. 1 § 700.147(b). The residency element is at issue in this case. 2 Under the applicable regulations, determining an applicant’s residence “requires an 3 examination of a person’s intent to reside combined with manifestations of that intent.” 49 4 Fed. Reg. 22,278 ; see also Charles v. Off. of Navajo & Hopi Indian Relocation, 774 F. 5 App’x 389, 390 (9th Cir. 2019). Such manifestations of intent may include ownership of 6 livestock, ownership of improvements, grazing permits, livestock sales receipts, homesite 7 leases, public health records, medical records, school records, military records, 8 employment records, mailing address records, banking records, driver’s license records, 9 voting records, home ownership or rental off the Joint Use Area, census data, Social 10 Security records, marital records, court records, birth records, the Joint Use Area roster, 11 and any other relevant data. 49 Fed. Reg. 22,278 . “An individual who was, on December 12 22, 1974, away from the land partitioned to the Tribe of which he/she is not a member may 13 still be able to prove legal residency.” 49 Fed. Reg. 22,277 . 14 III. DISCUSSION 15 Plaintiff makes several arguments in her Motion for Summary Judgment. First, 16 Plaintiff argues that the IHO’s finding that she was not a resident was unsupported by 17 substantial evidence and that the decision is arbitrary and capricious because the IHO 18 misapplied the law of legal residency. (Doc. 20 at 3). Second, Plaintiff argues that ONHIR 19 violated Plaintiff’s due process rights and its federal trust responsibility. (Id. at 15–18). 20 Third, Plaintiff argues that ONHIR failed to follow the District Court’s mandate during the 21 remand proceedings. (Id. at 18). 22 A. Residency Finding 23 Plaintiff argues that she was an HPL resident on December 22, 1974, even though 24 her mother had moved away from the HPL. Plaintiff argues that when her mother married 25 and moved off the HPL, her legal residence “did not follow her mother’s but remained” on 26 the HPL. (Doc. 20 at 7). She argues that “as a child of unwed parents [her] origin residency 27 continues until a new one is established.” (Id. at 13). Residency is determined by “intent to 28 reside combined with manifestations of that intent.” 49 Fed. Reg. 22,278 ; see also Charles, 1 774 F. App’x at 390. A child’s legal residence is based on the residence of their parents. 2 Yazzie v. Off. of Navajo and Hopi Indian Relocation, No. 22-16124, 2024 WL 1904560 , at 3 *2 (9th Cir. May 1, 2024) (citing Hughes v. Indust. Comm’n, 211 P.2d 463, 466 (Ariz. 4 1949)). 5 In the decision on remand, the IHO found that Plaintiff did not reside on the HPL 6 during the relevant time period, using the correct legal standard. The IHO assessed 7 Plaintiff’s residency under the principle that “[a] minor applicant’s residency is derivative 8 of their parents and they are determined to be residents of HPL until they have relocated.” 9 (Doc. 19-5 at 3). The IHO found that the evidence showed that Plaintiff was not living on 10 the HPL on December 22, 1973 or 1974; instead, the evidence showed that Plaintiff had 11 moved off the HPL with her mother “by at least 1973 and 1974, if not earlier.” (Id. at 8). 12 Indeed, the IHO found that Plaintiff’s mother “likely moved from the HPL at some point 13 when [Plaintiff] was an infant or a toddler and took her children with her.” (Id. at 7). 14 Because Plaintiff’s residency was derivative of her mother’s, who was the custodial parent, 15 the IHO determined that Plaintiff was not a resident of the HPL during that time. (Id. at 7– 16 8). Plaintiff failed to meet her burden in showing that she was a resident of the HPL on 17 December 22, 1974 or when she attained head of household status in 1979. 18 This determination is supported by substantial evidence in the record. The IHO 19 considered Plaintiff’s testimony stating that she was raised by her grandfather who lived 20 on the HPL during the relevant time period. (Doc. 19-4 at 200). However, the IHO found 21 that Plaintiff’s testimony on this point was not credible because it contained contradictions 22 on important facts. (Id.). Plaintiff testified that she was raised by her parents and spent 23 equal time with them after they separated, but she also testified that her grandfather raised 24 her. (Id.). The IHO found Plaintiff’s testimony inconsistent with other testimony that, after 25 Plaintiff’s parents separated, Plaintiff’s mother “was uncomfortable continuing to live in 26 the Jasper Jensen area [on the HPL] because it was not within her own clan’s maternal area 27 bur rather that of [Plaintiff’s father’s] family.” (Id.). The IHO also found this testimony 28 inconsistent with the fact that Plaintiff’s father “worked for the railroad and was mostly 1 gone starting from the time before [Plaintiff] was born until November 2000” as well as 2 Plaintiff’s father’s testimony that Plaintiff spent “the ‘majority of her time’ with her mother 3 because ‘that is where she stayed.’” (Id. at 201). The IHO also considered that when asked 4 who raised her, Plaintiff testified “I would say my grandpa did.” (Id. at 198). However, the 5 IHO noted that Plaintiff “was significantly delayed in providing answer to this question, 6 and she was visibly upset and uncomfortable when she finally answered. Her demeanor 7 suggested that her answer was forced and untruthful.” (Id. n. 41). 8 The IHO also considered Plaintiff’s father, Jimmy George’s testimony that Plaintiff 9 lived on the HPL when she was a child. The IHO found Jimmy George’s testimony that 10 Plaintiff “went to live with her mother only once she was a teenager” to be contradictory 11 to evidence indicating that Plaintiff left the HPL “when she was an infant or toddler.” (Id. 12 at 207). Despite finding most of Mr. George’s testimony unreliable, the IHO did give 13 weight to his statement that Plaintiff spent the majority of her time with and stayed with 14 her mother. (Doc. 19-5 at 7). 15 The IHO also found that Plaintiff did not meet her burden to show residency on the 16 HPL in 1979 when she became a head of household. The IHO found that Plaintiff was 17 working in Show Low in 1979, which is off the HPL. (Doc. 19-5 at 8). Plaintiff testified 18 that, while she was working in Show Low, “her sister . . . was living with Jasper Jensen 19 and would drive to Show Low to get her and take her to visit the HPL.” (Doc. 19-4 at 203). 20 The IHO found that Plaintiff’s “testimony about her claimed return visits to the HPL was 21 exaggerated and unreliable.” (Id.). The IHO determined that Plaintiff’s testimony about 22 visits with her sister was not credible because her sister “was living with her husband and 23 child in Snowflake at that time,” not on the HPL with Plaintiff’s grandfather, as Plaintiff 24 thought. (Doc. 19-4 at 203–04). Moreover, the IHO found Plaintiff’s claim that she 25 travelled with her sister frequently to the HPL inconsistent with her sister’s statement that 26 she did not remember where Plaintiff was living or what she was doing during that time. 27 (Id.). The IHO also concluded that Plaintiff did not have substantial contacts with the HPL 28 homesite, even if she did make visits, in light of the factors outlined in 49 Fed. Reg. 22,278 . 1 (Doc. 19-5 at 9). 2 “[A]n IHO’s credibility findings are typically granted substantial deference by 3 reviewing courts.” Beam v. Off. of Navajo & Hopi Indian Relocation, 624 F. Supp. 3d 4 1069, 1077 (D. Ariz. 2022) (citing De Valle v. Immigr. & Naturalization Serv., 901 F.2d 5 787, 792 (9th Cir. 1990)). The IHO is “in a position to observe [a witness]’s tone and 6 demeanor, to explore inconsistences in testimony, and to apply workable and consistent 7 standards in the evaluation of testimonial evidence.” Sarvia-Quintanilla v. U.S. Immigr. & 8 Naturalization Serv., 767 F.2d 1387, 1395 (9th Cir. 1985). Still, an “adverse credibility 9 finding must be supported by specific, cogent reasons, and cannot be based on speculation 10 and conjecture.” Shire v. Ashcroft, 388 F.3d 1288, 1295 (9th Cir. 2004). Here, the IHO 11 provided specific and detailed reasons for his credibility findings, as detailed above. 12 The IHO also cited statements made to ONHIR’s investigator in his decision. (Doc. 13 19-4 at 173–184). After Plaintiff’s first case was remanded, “both parties contracted with 14 investigators to assist in further clarifying information related to [Plaintiff’s] background 15 and circumstances.” (Doc. 19-4 at 173). ONHIR’s investigator, Louis St. Germaine, spoke 16 to Plaintiff’s family and other community members to discover where she resided. For 17 example, the IHO summarized the investigator’s interview with Plaintiff’s mother, Annie 18 Monroe, who stated that she moved off the HPL after she and Plaintiff’s father separated. 19 (Doc. 19-4 at 175). Plaintiff’s sister, Lavina Yazzie, also recalled that Plaintiff’s mother 20 moved the children off the HPL and the children would spend summers and school breaks 21 with their mother. (Id. at 178). The investigator also interviewed Julia Barnett, who stated 22 that Plaintiff’s mother and her children went to live with the Anderson family when 23 Plaintiff was two or three years old. (Id. at 179–80). 24 Plaintiff argues that the investigator’s testimony about these interviews constitutes 25 “double hearsay” and is unreliable. (Doc. 20 at 12–13). “Not only is there no administrative 26 rule of automatic exclusion for hearsay evidence, but the only limit to the admissibility of 27 hearsay evidence is that it bear satisfactorily indicia of reliability. We have stated the test 28 of admissibility as requiring that the hearsay be probative and its use fundamentally fair.” 1 Calhoun v. Bailar, 626 F.2d 145, 148 (9th Cir. 1980). Factors the Court may consider in 2 the analysis include possible bias of the declarant, whether the statements are signed and 3 sworn, whether the statements are contradicted by testimony, whether “the declarant is 4 available to testify and, if so, whether or not the party objecting to the hearsay statements 5 subpoenas the declarant,” the credibility of the witness testifying to the hearsay, and 6 whether the hearsay is corroborated. Id. at 149 . 7 Mr. St. Germaine’s testimony constitutes substantial evidence. Both parties 8 contracted with investigators to develop the record before the IHO. ONHIR hired Mr. St. 9 Germaine, and Plaintiff hired Ms. Glennas’Ba Bizahaloni Augborne Arents “to review the 10 report made by Mr. St. Germaine from his investigation and interviews . . . to identify any 11 inaccuracies or discrepancies in those reports to determine whether they could be reliable 12 in this proceeding.” (Doc. 19-4 at 173–74). Plaintiff objected to Mr. St. Germaine’s report 13 being admitted into evidence and moved to exclude the report as hearsay and duplicative 14 testimony. (Id. at 187–88). The IHO ruled that both investigators’ reports would be 15 admitted into evidence, and at the hearing, both investigators testified regarding their 16 reports and each other’s reports. (Id.). Both were subject to cross-examination. (Id. at 188). 17 The IHO explained in the report that “[b]oth parties also offered hearsay evidence but 18 neither party offered sworn testimony from any interviewee.” (Id.). 19 The IHO found that Mr. St. Germaine was reliable and credible. (Id. at 196). In the 20 decision, the IHO highlighted that Mr. St. Germaine had grown up on the Navajo Nation 21 and was a Navajo Nation Police Officer for over thirty years. (Id. at 193). Mr. St. Germaine 22 testified that he worked on fifty or sixty cases per year and has “conducted hundreds of 23 interviews.” (Id. at 194). In addition, Mr. St. Germaine had reliable methods, including 24 asking interviewees about “important life events as a method to anchor events from a long 25 time ago to specific time frames” and taking simultaneous notes in most interviews. (Id. at 26 195). On the other hand, The IHO found that Ms. Arents “did not reliably document 27 discrepancies that negatively affect the overall reliability of [Mr. St. Germaine’s] report.” 28 (Id. at 191). Specifically, the IHO explained that Ms. Arents’ report “did not include 1 credibility determinations, nor did she attempt any independent assessment regarding the 2 veracity of her subject’s statements or the alleged inaccuracies or discrepancies that they 3 identified.” (Id. at 192). Ms. Arents also did not interview several key witnesses, including 4 Plaintiff’s mother and father, even though they were interviewed by Mr. St. Germaine. 5 (Id.). Mr. St. Germaine’s report contained the necessary indicia of reliability to constitute 6 sufficient evidence, particularly in light of the fact that Plaintiff hired an expert to 7 investigate Mr. St. Germaine’s report and had the opportunity to cross-examine Mr. St. 8 Germaine on the hearsay statements. 9 For all the reasons stated above, the Court finds that the IHO’s determination that 10 Plaintiff was not a resident of the HPL is not arbitrary and capricious and is supported by 11 substantial evidence in the record. In addition, where there is ambiguous or conflicting 12 evidence, ONHIR is “entitled to resolve [the] ambiguities and conflicts against” the 13 applicant. Daw v. Off. of Navajo & Hopi Indian Relocation, No. 20-17261, 2021 WL 14 4938121, at *2 (9th Cir. Oct. 22, 2021). And where the evidence could support either of 15 two inconsistent conclusions, it is not this Court’s role to second-guess the IHO’s decision. 16 See id. at *1 (“It is a fundamental principle that an agency, its experts, and its administrative 17 law judges are better positioned to weigh conflicting evidence than a reviewing court.” 18 (internal quotation marks omitted)). In sum, there is substantial evidence to support the 19 IHO’s conclusion that Plaintiff was not a resident of the HPL, so the IHO’s decision will 20 not be reversed on this ground. 21 B. Due Process and Trust Responsibility 22 Next, Plaintiff argues that ONHIR’s refusal to accept her application for benefits in 23 1992 constitutes a due process violation and a violation of ONHIR’s trust obligations. 24 Plaintiff also argues that ONHIR’s failure to hold a hearing within thirty days of her appeal 25 violates the APA, due process, and trust responsibilities. Essentially, Plaintiff argues that 26 the delays in her case violated her rights under the law, and as a result, the Court should 27 order that Plaintiff receive relocation benefits. 28 First, Plaintiff has not shown how ONHIR’s failure to accept her application in 1 1992, or any further delays throughout the process, constituted a due process violation or 2 violation of the APA. Plaintiff asserts that the “right to relocation benefits is a property 3 right,” citing Goldberg v. Kelly, 397 U.S. 254 (1970), a United States Supreme Court case 4 considering whether procedural due process requires a State to hold an evidentiary hearing 5 prior to terminating someone’s public assistance payments. (Doc. 20 at 16). Plaintiff does 6 not explain how the denial of her initial attempt to apply for relocation assistance benefits 7 constituted a denial of her due process rights.3 Indeed, Plaintiff subsequently applied for 8 relocation benefits in 2005, and her request was denied. (Doc. 19-1 at 49). Plaintiff also 9 does not show how the delay between her 2006 appeal and December 7, 2012 hearing 10 constitutes a due process violation. (See Doc. 20). Plaintiff argues that 25 C.F.R. § 11 700.311(d) requires hearings to be held within thirty days of the appeal, but that section 12 provides: “All hearings shall be held within thirty days after Commission receipt of the 13 applicant’s request therefor unless this limit is extended by the Presiding Officer.” 14 (emphasis added). The letter accepting Plaintiff’s appeal informed Plaintiff that “[t]he 30 15 day time limit for holding a hearing is hereby extended by the Hearing Officer, pursuant to [16] 25 C.F.R. § 700.311 (d).” (Doc. 19-1 at 55). ONHIR’s requests for waiver of time were 17 granted. (Doc. 19-1 at 69, 74–75). Plaintiff has provided no authority for her argument that 18 this waiver was ineffective. (Doc. 20 at 17–18).4 19 Plaintiff also argues that if not for the delay, “Ms. Nelson and her witnesses would [20] 21 3 The record shows that Plaintiff visited the relocation office in attempt to apply for relocation assistance benefits on May 13, 1992, but her application was not accepted 22 because she did not apply prior to the July 7, 1986 deadline. (Doc. 19-1 at 7). A “post 7-786 contact review form” shows that on April 20, 2005, a review showed that a notice of 23 opportunity to request an eligibility determination should be sent to Plaintiff. (Id. at 28). 24 4 Plaintiff also does not address the fact that her attorney from the Navajo-Hopi Legal Services Program (“NHLSP”) requested a continuance of her hearing because counsel was 25 not able to get in touch with Plaintiff to prepare for the hearing. (Doc. 19-1 at 96) (“[D]espite NHLSP[’s] multiple efforts to get back in touch with Bernice about the 26 availability of her other witness, step-grandmother Nancy Jensen, for her hearing this Friday, NHLSP was just able to speak with Bernice this morning for the first time. . . . We 27 have not been able to reach Bernice again today despite more multiple attempts to contact her by phone.”). Plaintiff’s counsel requested a second continuance as well. (Doc. 19-1 at 28 102). 1 have been better able to remember what occurred a couple of years before.” (Id. at 15–16). 2 She asserts that this “renders the hearing a violation” of her due process rights. (Id.). But 3 Plaintiff does not explain how the passage of time and alleged lack of memory by any 4 witnesses would change the outcome of the decision. (Id.). Instead, it appears that Plaintiff 5 was simply unable to meet her burden and prove her eligibility for relocation benefits. See 6 Begay v. Off. of Navajo & Hopi Indian Relocation, 771 F. App’x 384 , 384–85 (9th Cir. 7 2019) (“Begay argues that passage of time . . . could explain inconsistencies. But we give 8 substantial deference to an agency’s credibility findings, and even allowing for some 9 inconsistencies, Begay did not meet his burden). Therefore, Plaintiff has not explained how 10 there was a due process or APA violation. 11 Nor does Plaintiff show how there has been a breach of ONHIR’s trust obligation. 12 The Court is well aware of “the longstanding general trust obligation that has dominated 13 Government interaction with Native Americans” as well as “the many grants of express 14 trustee authority in the Settlement Act.” Bedoni, 878 F.2d at 1124. The Settlement Act 15 places upon ONHIR “an affirmative duty to manage and distribute the funds appropriated 16 pursuant to the Settlement Act such that the displaced families receive[ ] the full benefits 17 authorized for them.” Id. at 1125. 18 Plaintiff argues that ONHIR breached its fiduciary duty by failing to inform her of 19 the deadline to apply for relocation benefits. (Doc. 20 at 15) (citing Herbert v. Off. of 20 Navajo & Hopi Indian Relocation, CV06-03014-PCT-NVW, 2008 WL 11338896 , at *6– 21 7 (D. Ariz. Feb. 27, 2008). In Herbert, the Court determined that ONHIR “was required to 22 notify and inform ‘each person’ identified as potentially to subject to relocation.” Id. at *6 . 23 In that case, the Court determined that ONHIR had information indicating that the plaintiff 24 was residing on the HPL, making him “a person identified as potentially subject to 25 relocation.” Id. Unlike in Herbert, Plaintiff has pointed to no evidence showing that 26 ONHIR believed Plaintiff to be residing on the HPL and therefore a person potentially 27 subject to relocation. (See Doc. 20). Instead, the record shows that ONHIR determined 28 multiple times that Plaintiff was not eligible for relocation benefits because she was not 1 residing on the HPL during the requisite time. (See Doc. 19-1 at 49, 183–88). Plaintiff has 2 also not shown a breach of ONHIR’s trust obligations. Because the IHO determined that 3 Plaintiff is not eligible for benefits, and because this Court finds no reversible error in the 4 IHO’s decision, ONHIR has no duty to disburse benefits to Plaintiff. 5 C. Scope of Remand 6 Plaintiff’s final argument is that ONHIR’s fact investigation prior to the second 7 hearing violated the remand order. (Doc. 20 at 18–19). It its Order granting Defendant’s 8 Motion to Remand, the court reasoned that “[b]oth parties agree that there are inadequacies 9 in the administrative decision, and all parties, including the reviewing court, would be 10 better served by a more accurate record.” (Doc. 19-3 at 26). The court remanded the matter 11 for “further proceedings consistent with [the] Order, including for the issuance of a new 12 administrative decision.” (Id.). Plaintiff argues that “[r]ather than develop the factual 13 record, ONHIR simply hired an investigator who inaccurately summarized family 14 members’ testimony in an effort to deny [Plaintiff’s] application.” (Doc. 20 at 18). 15 The Court finds that the investigative reports and testimony allowed the IHO to 16 develop the record in accordance with the remand order. Not only did the ONHIR contract 17 with an investigator, but so did Plaintiff. To the extent Plaintiff is arguing that the 18 investigative reports and testimony should not have been admitted, those arguments have 19 been addressed above. For these reasons, the IHO’s hearing comported with the Court’s 20 Order remanding the matter for further proceedings. Therefore, the Court will not reverse 21 the IHO’s decision on this ground. 22 IV. CONCLUSION 23 Defendant has demonstrated that it is entitled to summary judgment on Plaintiff’s 24 claims. Therefore, Plaintiff’s Motion for Summary Judgment (Doc. 20) will be denied and 25 Defendant’s Cross Motion for Summary Judgment (Doc. 28) will be granted. 26 Accordingly, 27 IT IS ORDERED that Plaintiff’s Motion for Summary Judgment (Doc. 20) is 28 denied. 1 IT IS FURTHER ORDERED that Defendant’s Cross Motion for Summary 2| Judgment (Doc. 28) is granted. 3 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment for 4| Defendant and terminate this action. 5 Dated this 11th day of February, 2026. [6] g United States District bidge