Webb 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] 9 Brandon Webb, No. CV-21-08027-PCT-MTL 10 Plaintiff, ORDER 11 v. 12 Office of Navajo and Hopi Indian Relocation, [13] Defendant. [14] 15 Pending before the Court is Plaintiff Brandon Webb’s Motion for Summary 16 Judgment (Doc. 17) and Defendant Office of Navajo and Hopi Indian Relocation’s 17 (“ONHIR”) Cross Motion for Summary Judgment (Doc. 19). For the reasons that follow, 18 Defendant’s Cross Motion is granted and Plaintiff’s Motion is denied. 19 I. BACKGROUND 20 A. The Settlement Act 21 Prior to 1974, a parcel of land in northeastern Arizona, known as the “Joint Use 22 Area” was occupied by both the Navajo and Hopi Nations. Healing v. Jones, 210 F. Supp. 23 125, 132 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963). In an attempt to resolve conflict 24 between the tribes, Congress passed the Navajo-Hopi Settlement Act (the “Settlement 25 Act”) in 1974, which authorized the District Court of Arizona to divide the land into the 26 Navajo Partitioned Lands (“NPL”) and the Hopi Partitioned Lands (“HPL”). See Pub. L. 27 No. 93-531, § 12, 88 Stat. 1716 (1974); Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. [28] 1 1999). The Settlement Act also created the ONHIR* to disburse benefits funds and to assist 2 tribal members relocating to the other side of the partition. Bedoni v. Navajo–Hopi Indian 3 Relocation Comm’n, 878 F.2d 1119 , 1121–22 (9th Cir. 1989). To be eligible for benefits 4 under the Settlement Act, a Navajo applicant must prove that he or she (1) was a legal 5 resident of the HPL as of December 22, 1974 and (2) was the head of household at that 6 time. Laughter v. Office of Navajo & Hopi Indian Relocation, CV–16–08196–PCT–DLR, [7] 2017 WL 2806841 , at *1 (D. Ariz. June 29, 2017). The applicant bears the burden of 8 proving legal residence and head of household status. See id. (citing 25 C.F.R. § 700.147 9 (1986)). 10 B. Factual and Procedural History 11 Plaintiff filed on behalf of the estate of his deceased mother, Laura Manygoats. 12 (Doc. 1 at 1.) Laura was an enrolled member of the Navajo Nation. (Doc. 10, 13 Administrative Record (“AR”) at 34.) Laura was born November 1, 1964 and was raised 14 near Sand Springs in the Coalmine Chapter area on the HPL. (AR 34, 50, 75.) Her parents 15 maintained two seasonal camps, one of which was partitioned to the Hopi Indians and the 16 other was partitioned to the Navajo Nation. (AR 50.) Laura graduated from high school at 17 the age of twenty. (AR 185.) She continued to live at home on the HPL after graduating 18 from high school and wove Navajo rugs for income. (AR 153, 160.) In 1985, Laura and 19 her sister, Nora, began attending the Arizona Academy of Medical and Dental Assistants 20 (“Academy”) where they received financial aid totaling to $5,000 for tuition and $5,000 21 for living expenses. (AR 151–55, 169.) They received bi-weekly checks of $450 from the 22 Academy through the duration of their attendance. (AR 180.) In 1986, the family began to 23 move from the HPL to their second seasonal camp on the NPL. (AR 88–89, 98, 198–200.) 24 In May 2010, Laura applied for relocation benefits under the Settlement Act. (AR 25 116.) Two and a half years later, ONHIR denied Laura’s application because she was not 26 the “head of household” when she moved off of the HPL land. (Id.) Laura appealed. (AR 27 122, 124, 145.) 28 * The predecessor to the ONHIR was the Navajo-Hopi Indian Relocation Commission, or NHIRC. See 25 U.S.C. §§ 640d–11, 640d–12, 640d–13, 640d–14. 1 In September 2014, an Independent Hearing Officer (“IHO”) held a hearing in 2 Laura’s case. (AR 145.) After the parties submitted post-hearing briefs, the IHO issued a 3 written decision denying Laura’s appeal. (Doc. 20 at ¶ 33, AR 49, 52.) The following 4 month, ONHIR took final agency action on Laura’s application and concluded the 5 administrative review process. (AR 408.) Laura then timely filed a Complaint in this Court, 6 seeking judicial review of the ONHIR’s decision. (Doc. 1.) 7 II. LEGAL STANDARD 8 The Administrative Procedure Act (“APA”) governs judicial review of agency 9 decisions under the Settlement Act. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 10 1995). Under the APA, the Court may set aside an administrative agency’s decision only 11 if that decision was “arbitrary, capricious, an abuse of discretion, not in accordance with 12 law, or unsupported by substantial evidence.” Bedoni, 878 F.2d at 1122 (citing 5 U.S.C. 13 § 706(2)(A), (E) (1982); Walker v. Navajo–Hopi Indian Relocation Comm’n, 728 F.2d 14 1276, 1278 (9th Cir. 1984)). “Substantial evidence is more than a mere scintilla, but less 15 than a preponderance.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). When 16 conducting “judicial review pursuant to the APA, ‘summary judgment is an appropriate 17 mechanism for deciding the legal question of whether [ONHIR] could reasonably have 18 found the facts as it did.’” O’Daniel v. Office of Navajo & Hopi Indian Relocation, No. 0719 354-PCT-MHM, 2008 WL 4277899 , at *3 (D. Ariz. Sept. 18, 2008) (citing Occidental 20 Eng’g Co. v. INS, 753 F.2d 766 , 770 (9th Cir. 1985)). 21 Under this standard, the Court applies a “narrow” and highly deferential standard of 22 review: To make this finding the [C]ourt must consider whether the [23] decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Although [24] this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The [C]ourt is not [25] empowered to substitute its judgment for that of the agency. 26 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on 27 other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (citations omitted). 28 In contrast to summary judgment in an original district court proceeding, the 1 function of the Court in a review of an administrative proceeding “is to determine whether 2 or not as a matter of law the evidence in the administrative record permitted the agency to 3 make the decision it did.” Occidental Engineering Co., 753 F.2d at 769. “Where evidence 4 is susceptible of more than one rational interpretation, it is the [IHO’s] conclusion which 5 must be upheld; and in reaching his findings, the [IHO] is entitled to draw inferences 6 logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450, 1453 (1984) 7 (citations omitted). Ultimately, the Court must affirm if the agency “considered the relevant 8 factors and articulated a rational connection between the facts found and the choices 9 made.” Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t 10 of Agr., 499 F.3d 1108, 1115 (9th Cir. 2007) (quoting City of Sausalito v. O’Neill, 386 F.3d 11 1186, 1206 (9th Cir. 2004)). 12 III. ANALYSIS 13 A. Extra-Record Material 14 Plaintiff attached fifteen exhibits to his motion for summary judgment and response 15 (Ex. 1–15), some of which were not included in the administrative record. (Docs. 17-1, 1716 2, 17-3, 17-4, and 24-1.) ONHIR objects to these extra-record documents because Plaintiff 17 did not seek to supplement the record, “as required by Ninth Circuit law.” (Doc. 19 at 6.) 18 “[T]he focal point for judicial review [under the APA] should be the administrative 19 record already in existence, not some new record made initially in the reviewing court.” 20 Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record consists of both the 21 documents compiled and submitted by the agency, but also of “documents and materials 22 directly or indirectly considered by agency decision-makers.” Thompson v. U.S. Dep’t of 23 Lab., 885 F.2d 551, 555 (9th Cir. 1989). A district court may consider documents outside 24 of the administrative record in four “narrowly construed” circumstances: when “(1) 25 supplementation is necessary to determine if the agency has considered all factors and 26 explained its decision; (2) the agency relied on documents not in the record; (3) 27 supplementation is needed to explain technical terms or complex subjects; or (4) plaintiffs 28 have shown bad faith on the part of the agency.” Fence Creek Cattle Co. v. U.S. Forest 1 Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). While “an agency must follow its own 2 precedent or else explain any deviation, . . . previous decisions only serve this purpose if 3 they carry precedential value in the case at hand.” Stago v. Off. of Navajo & Hopi Indian 4 Relocation, 562 F. Supp. 3d 95 , 102 (D. Ariz. 2021). Accordingly, the Court will consider 5 only those exhibits if “they set forth ONHIR policy or if they involve facts 6 indistinguishable from the instant case.” Id. 7 Exhibits 3 through 9 are excerpts within the administrative record from prior 8 ONHIR decisions. (Docs. 17-1, 17-2, and 17-3.) Plaintiff asserts these exhibits to be 9 necessary to this Court’s analysis as they have a “precedential effect,” and urges the Court 10 to ensure that those displaced under the Settlement Act are treated with fairness and 11 consistency. (Doc. 23 at 10–11.) Here, the excerpts of the administrative record do not 12 provide the Court with the facts necessary to determine what was before the IHO in each 13 case. Further, the Court cannot conclude that “Plaintiff’s hand-picked sample of cases 14 represents a settled course of adjudication and a general policy by which [Defendant’s] 15 exercise of discretion will be governed . . . .” Whitehair v. Off. of Navajo & Hopi Indian 16 Relocation, No. CV17-08278-PCT-DGC, 2018 WL 6418665 , at *3 (D. Ariz. Dec. 6, 2018) 17 (internal quotation marks omitted). Thus, the Court will not consider these exhibits. 18 Exhibit 12 is the Office of the Inspector General’s report on the “Status of the Office 19 of Navajo and Hopi Indian Relocation’s Appeals on Denied Eligibility Determination 20 Cases.” (Doc. 17-4 at 45–59, Ex. 12.) The report was published in September 2020. (Id. at 21 46.) Plaintiff’s benefits were denied in January 2015, over five years prior. (AR 49–54.) 22 Plaintiff does not attempt to argue that the IHO considered the report, nor that the report 23 fits into any Fence Creek circumstances. (Doc. 23 at 9–11.) Thus, the Court will not 24 consider Exhibit 12. Stago, 562 F. Supp. 3d at 103 (denying an exhibit where Plaintiff 25 failed to argue for the application of Fence Creek or the IHO’s consideration of the report). 26 Similarly, the Court will not consider Plaintiff’s Exhibits 11, 13, 14 and 15 as there 27 is no need to refer the Ninth Circuit’s decision in Shaw, nor this Court’s previous decisions 28 in either Herbert or Torpey. The Court also finds no substantive value in Applicant 1 Brown’s IHO’s Finding of Fact, Conclusions of Law and Decision. (Docs. 17-4, 23-1, Ex. 2 11, 13, 14, 15.) However, the Court will consider Plaintiff’s Exhibit 10. Plaintiff cites In 3 re Minnie Woodie to highlight the ONHIR’s policy on customary use policies. (Doc. 23 at 4 11–12.) The Ninth Circuit, along with various judges in this district, has held that “an 5 applicant’s use of land for traditional activities qualifies the applicant as a legal resident, 6 which comes not from federal regulations but from the Minnie Woodie decision.” Stago, 7 562 F. Supp. 3d at 102 (citing Shaw v. Off. Of Navajo & Hopi Indian Relocation, 860 Fed. 8 App’x 493, 494–95 (9th Cir. 2021) (Bade, J., dissenting)). Given that the IHO was required 9 to consider the Minnie Woodie decision and its respective holding, the Court finds 10 Plaintiff’s Exhibit 10 to be a part of the administrative record. Id. 11 In contrast, Plaintiff’s Exhibit 1 was previously a part of the administrative record 12 because it was included in Plaintiff’s post-hearing memorandum. (AR 253–56.) 13 Accordingly, it is part of this Court’s review. To the extent that the remainder of Plaintiff’s 14 exhibits are not already a part of the administrative record, the Court will not consider 15 them. 16 B. Credibility Findings 17 Plaintiff also argues that the IHO’s credibility findings were not supported by 18 substantial evidence. (Doc. 17 at 9–14.) The IHO found Laura and Nora to be not credible 19 but found Joseph Shelton, an ONHIR employee who reviewed the applicant’s parents’ 20 relocation files, to be credible. (AR. 398–99.) “When the decision of an ALJ rests on a 21 negative credibility evaluation, the ALJ must make findings on the record and must support 22 those findings by pointing to substantial evidence on the record.” Ceguerra v. Secretary of 23 Health & Human Services, 933 F.2d 735, 738 (9th Cir. 1991) (citation omitted). Thus, “if 24 an ALJ has grounds for disbelieving material testimony, it is both reasonable and desirable 25 to require the ALJ to articulate those grounds in the original decision.” Id. at 740 (citing 26 Varney v. Secretary of HHS, 859 F.2d 1396 (9th Cir. 1988)). Nevertheless, an agency’s 27 “credibility findings are granted substantial deference by reviewing courts.” De Valle v. 28 I.N.S., 901 F.2d 787, 792 (9th Cir. 1990) (citations omitted). The Ninth Circuit has 1 recognized that the IHO alone is “in a position to observe [a witness]’s tone and demeanor, 2 to explore inconsistencies in testimony, and to apply workable and consistent standards in 3 the evaluation of testimonial evidence. He is . . . uniquely qualified to decide whether an 4 [witness]’s testimony has about it the ring of truth.” Sarvia–Quintanilla v. U.S. I.N.S., 767 5 F.2d 1387 , 1395 (9th Cir. 1985). 6 The IHO found Laura and Nora’s testimony about their enrollment at or financial 7 assistance from the Academy, as well as their rug sales, noncredible because “there are no 8 documents or records to show that either applicant or Nora Manygoats was enrolled in the 9 school [or] . . . received financial assistance to attend the school.” (AR 399.) Further, the 10 IHO found that there are “no records to show that [Laura and Nora] earned any money 11 from rug sales, there are no books of account or bookkeeping records in the record” and 12 identified “incongruity [] and discrepancies in applicant’s claims about financial 13 assistance.” (AR 399, 402.) In contrast, the IHO determined Joseph Shelton’s testimony to 14 be credible; he testified regarding his appraisal of the family’s camp site and his review of 15 the records. (AR 399, see also AR 214–25.) Despite finding that “Mr. Shelton has no direct 16 knowledge whether the cornfield was planted after the appraisal photos were taken,” the 17 IHO found him to be credible based on his testimony regarding the history of the family’s 18 HPL camp site, as well as the cornfield and livestock there. (Id.) The Court finds that these 19 reasons are specific and cogent, and therefore the IHO’s credibility findings were supported 20 by substantial evidence and entitled to deference by this Court. See Begay v. Off. of Navajo 21 & Hopi Indian Relocation, 305 F. Supp. 3d 1040, 1050 (D. Ariz. 2018), aff’d, 770 F. App’x 22 801 (9th Cir. 2019). 23 Plaintiff also contends that the IHO’s credibility findings were arbitrary and 24 capricious because he failed to identify documentation regarding Laura’s attendance of 25 Academy and “he failed to credit Laura for any income received from the financial aid or 26 income from her rugs in the 1980’s.” (Doc. 23 at 13.) Plaintiff further argues that the IHO 27 failed to explain its deviation from prior agency decisions. (Doc. 17 at 14.) The Court is 28 not persuaded by this argument. “The arbitrary and capricious standard is highly 1 deferential, [it] presum[es] the agency action to be valid and requires affirming the agency 2 action if a reasonable basis exists for its decision.” Kern Cnty. Farm Bureau v. Allen, 450 3 F.3d 1072, 1076 (9th Cir. 2006). A reasonable basis underlies the IHO’s findings here. This 4 is exemplified in Plaintiff’s inconsistent and contradictory arguments. (Doc. 23 at 3–5.) 5 Nora testified that she and Laura attended the Academy where they were each supposed to 6 receive $5,000 for living expenses. (Id. at 4.) Both received bi-weekly checks of $450 7 during the months of August, September, October, November, December, January, and 8 February. (Id. at 5, AR 157–58.) Even considering Plaintiff’s clarification that, “Nora’s 9 testimony was they started school at the end of August, were home for winter break and 10 returned to school in February for a month or so until the school closed in March,” the 11 testimony still results in inconsistencies. (Doc. 23 at 5.) Nora’s testimony made no mention 12 of attendance in March, and she explicitly noted that she “receive[d] the same Financial 13 Aid, the same check every two weeks, throughout her[] time going to school.” (Id., AR 14 158.) Moreover, Nora’s testimony adds up to a payment of over $5,000, which is 15 inconsistent with her prior testimony that she was supposed to receive $5,000 for living 16 expenses. These inconsistencies form a reasonable basis for IHO’s finding of 17 noncredibility. See Begay, 305 F. Supp. 3d at 1050 . Further, the ONHIR need not make the 18 same credibility determination in two different cases. Daw v. Off. of Navajo & Hopi Indian 19 Relocation, No. CV-19-08212-PCT-SMB, 2020 WL 5632121 , at *4 (D. Ariz. Sept. 21, 20 2020) (concluding that though “the agency [must] appl[y] the law consistently to cases 21 with similar material facts; it does not require the agency find the same facts for different 22 parties, in different proceedings, and based on different evidence”). For these reasons, the 23 Court concludes that the IHO’s findings of Laura and Nora’s lack of credibility were not 24 arbitrary or capricious. 25 C. Head of Household 26 Plaintiff next challenges the IHO’s conclusion that Laura Manygoats was not a self27 supporting head of household prior to the July 7, 1986 deadline. (Doc. 17 at 5–6.) The IHO 28 held that Laura and Nora’s testimony regarding their income from weaving and financial 1 aid for school was not credible given a lack of documentation. (AR 400.) 2 To be considered a head of household, an applicant must show that she was a “single 3 person who at the time his/her residence on land partitioned to the Tribe of which he/she 4 is not a member actually maintained and supported him/herself[.]” 25 C.F.R. 5 § 700.69(a)(2). The applicant bears the burden of proving his/her head of household status. 6 Id. § 700.147(b). Moreover, to qualify, a Navajo individual must have become the Head of 7 Household at either the time he or she moved to off the HPL, or by July 7, 1986. Id. 8 § 700.69(c), § 700.147(e). Thus, to qualify for benefits, Plaintiff must prove that Laura was 9 the self-supporting head of household prior to July 1986. The ONHIR’s regulations do not 10 set forth a specific dollar amount an applicant must have earned in order to qualify as self11 supporting, but earnings of at least $1,300 per year create a prima facie showing of self12 support. Benally v. Off. of Navajo & Hopi Relocation, No. 13-CV-8096-PCT-PGR, 2014 13 WL 523016 , at *3 (D. Ariz. Feb. 10, 2014). To meet this burden, a court may require 14 evidence or documentation of purported wages used to meet this threshold. Id. 15 The IHO did not err in finding that Plaintiff’s testimony regarding her income was 16 not credible given the lack of documentation prior to July 1986. Laura testified that she 17 received bi-weekly checks in the amount of $450 for living expenses from Academy and 18 income from weaving. (AR 191–92.) Laura explained that she wove approximately three 19 to four rugs per month and sold each rug for cash in the amounts ranging from $300 to 20 $450, depending upon its size and pattern. (AR 160–63, 187–88, 199–200.) But both of 21 these alleged sources of income were undocumented. Plaintiff argues that Laura’s case is 22 analogous to her other sister’s, Martha Manygoats, who was approved for relocation 23 benefits without income documentation. (Doc. 24 at 2–3.) But Martha provided multiple 24 Social Security earnings statements. (AR 62, 80–81, 90.) Her 1981 statement showed she 25 had $3,770 in income, well beyond the $1,300 threshold. (AR 90.) Laura provides no such 26 documentation. Her testimony therefore remains “totally unsupported by contemporaneous 27 documentation,” Benally, 2014 WL 523016 , at *4, and to validate conjecture would allow 28 for applicants to “be able to claim any amount of income to meet the head of household 1 standard no matter how fantastic.” Begay v. Off. of Navajo & Hopi Indian Relocation, No. 2 CV-16-08268-PCT-DJH, 2018 WL 11265153 , at *4 (D. Ariz. Mar. 30, 2018), aff’d, 771 3 F. App’x 384 (9th Cir. 2019). The Court finds the IHO’s requirement of documentation 4 here to be in line with case law and 25 C.F.R. § 700.147 (b), and therefore finds no error. 5 Moreover, Laura failed show any other evidence that she was a self-supporting 6 head of household. Laura did not mention that she paid rent, nor did she pay for her own 7 meals. (Doc. 18 at ¶ 7.) In fact, Laura resided with her parents and presumably relied on 8 them for meals and housing. (Id.) Benally, 2014 WL 523016 , at *3 (holding that where an 9 individual lives with their parents and their food and shelter needs are provided for, they 10 fail to meet the burden of showing they are head of household). Given this, Plaintiff fails 11 to meet the burden of proving Laura was the self-supporting head of household prior to 12 July 1986. 13 Plaintiff points to several cases where he argues the ONHIR reached opposite 14 decisions. (Doc. 24 at 5–9.) While it is true that the ONHIR must follow its own precedent, 15 this requires “that the agency appl[y] the law consistently to cases with similar material 16 facts; it does not require the agency find the same facts for different parties, in different 17 proceedings, and based on different evidence.” Daw, 2020 WL 5632121 , at *4. The Court 18 finds that the IHO’s decision was not arbitrary and capricious and was supported by 19 substantial evidence. 20 D. Trustee Obligations 21 Finally, Plaintiff contends that the ONHIR’s adverse decision violated the 22 government’s federal trust responsibilities and the duty of good faith. (Doc. 17 at 15–17, 23 Doc. 24 at 13–15.) Plaintiff does not allege a specific federal trust violation is present, and 24 consequently fails to apply any legal authority to the specificities of the present case. (Doc. 25 23 at 13–15.) Nevertheless, the Court finds that the ONHIR did not breach its “affirmative 26 duty to manage and distribute the funds appropriated pursuant to the Settlement Act such 27 that the displaced families receive[ ] the full benefits authorized for them.” Stago, 562 F. 28 Supp. 3d at 106 (quoting Bedoni, 878 F.2d at 1124) (internal quotations omitted). ONHIR has a duty only to disburse benefits to those authorized to receive them under the 2|| Settlement Act. “Thus, whether ONHIR has a duty to disburse benefits to Plaintiffs flows || from the IHO’s decision, but ONHIR’s duty to disburse benefits to eligible applicants does not dictate Plaintiffs’ eligibility.” Id. 5|| IV. CONCLUSION 6 Therefore, 7 IT IS ORDERED denying Plaintiff's Motion for Summary Judgment. (Doc. 17.) 8 IT IS FURTHER ORDERED granting Defendant’s Cross Motion for Summary Judgment. (Doc. 19.) 10 IT IS FINALLY ORDERED directing the Clerk of the Court to enter judgment 11 || accordingly and close this case. 12 Dated this 19th day of July, 2022. [13] Micha T. Sihurde Michael T. Liburdi 16 United States District Judge [28] -ll-