Salt 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 Evelyn Salt, No. CV-22-08139-PCT-DJH 10 Plaintiff, ORDER 11 v. 12 Office of Navajo and Hopi Indian Relocation, [13] Defendant. [14] 15 The parties have filed cross-motions for summary judgment. (Docs. 17; 19).1 16 Plaintiff Evelyn Salt (“Plaintiff”) seeks relief from a denial of relocation assistance 17 benefits under the Navajo–Hopi Settlement Act by Defendant Office of Navajo and Hopi 18 Indian Relocation (“ONHIR” or “Defendant”). The Court must decide whether Plaintiff 19 was a resident of the Hopi Partitioned Lands (“HPL”) when she became head of 20 household in August of 1975. She was not. The Court accordingly grants Defendant’s 21 Motion for Summary Judgment and denies Plaintiff’s Motion. 22 I. Background 23 Plaintiff is an enrolled member of the Navajo Nation. (Doc. 1 at ¶ 5). She was 24 relocated from her home on the HPL2 to the Navajo Partitioned Lands (“NPL”) as a result 25 of the Navajo–Hopi Settlement Act (“Act”), 25 U.S.C. § 640d et seq. (Id.) Congress 26 created ONHIR, an independent federal agency, to carry out the relocation of Navajo and 27 1 The matter is briefed. Plaintiff filed a Response (Doc. 21), and Defendant filed a Reply (Doc. 23). [28] 2 Plaintiff’s HPL site is also referred to as Red Lake. 1 Hopi Tribal Members who resided on land that was partitioned to the other tribe, and to 2 provide relocation assistance benefits for all households required to relocate. (Id. at ¶ 6). 3 Plaintiff’s family moved from the HPL to the NPL in 1976. (Id. at ¶ 23). 4 On April 22, 2009, Plaintiff applied for relocation benefits under 25 C.F.R. § 5 700.138. (Id. at ¶ 7). Her application was denied. (Id. at 8). Plaintiff filed an appeal, 6 and a hearing was held on April 29, 2016. (Doc. 1 at ¶ 9–10). 7 The Independent Hearing Officer (“IHO”) issued a decision on July 8, 2016, 8 upholding ONHIR’s denial of relocation benefits. (Id. at ¶ 12). The IHO found that as of 9 December 22, 1974, Plaintiff “was a legal resident of the Red Lake Chapter, whose 10 cornfield was later partitioned for the use of the Hopi Indians,” and on that date, Plaintiff 11 “was living in Albuquerque, New Mexico and attending a free vocational school.” (Doc. 12 13 at 262). He concluded that Plaintiff was not a self-supporting head of household on 13 December 22, 1974, because “she was living in a school dormitory where her basic 14 personal needs for food and shelter were provided by others.” (Id.) 15 However, the IHO ultimately concluded that Plaintiff’s legal residence transferred 16 to Albuquerque “upon her completion of her vocational education in 1975.” (Id.) The 17 IHO therefore denied Plaintiff’s appeal. (Id.) ONHIR then issued its Final Agency 18 Action affirming the IHO’s denial determination. (Doc. 1 at ¶ 12). 19 On July 28, 2022, Plaintiff filed her Complaint, requesting this Court to reverse 20 ONHIR’s decision and find Plaintiff eligible for relocation assistance benefits. (Id.) 21 II. Legal Standard 22 Under the Administrative Procedure Act (“APA”), an aggrieved party may sue to 23 set aside a final non-discretionary agency action that is arbitrary or capricious, an abuse 24 of discretion, or otherwise not in accordance with the law. See 5 U.S.C. §§ 702 , 25 706(2)(A), (2)(E). “[T]he reviewing court can reverse only if the agency action was 26 arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported 27 by substantial evidence.” Bedoni v. Navajo–Hopi Indian Relocation Com’n, 878 F.2d 28 1119, 1122 (9th Cir. 1989). 1 An agency action is arbitrary and capricious “if the agency has relied on factors 2 which Congress has not intended it to consider, entirely failed to consider an important 3 aspect of the problem, offered an explanation for its decision that runs counter to the 4 evidence before the agency, or is so implausible that it could not be ascribed to a 5 difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S. 6 v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). “The arbitrary and capricious 7 standard is highly deferential, presuming the agency action to be valid and [requires] 8 affirming the agency action if a reasonable basis exists for its decision.” Kern County 9 Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (internal citation omitted). 10 When the court conducts judicial review under the APA, “summary judgment is 11 an appropriate mechanism for deciding the legal question of whether the agency could 12 reasonably have found the facts as it did.” Occidental Eng’g Co. v. I.N.S., 753 F.2d 766 , 13 770 (9th Cir. 1985). However, the agency is the fact finder and the court’s role “is to 14 determine whether or not as a matter of law the evidence in the administrative record 15 permitted the agency to make the decision it did.” Id. at 769. 16 III. Discussion 17 Plaintiff raises two arguments: (1) The IHO failed to properly apply the 18 “temporarily away” policy in determining that Plaintiff was not a legal resident of the 19 HPL; and (2) the IHO erred in discrediting Plaintiff’s testimony about her return visits to 20 Red Lake. (Doc. 17 at 8–18). Plaintiff thus contends ONHIR’s denial of relocation 21 benefits was arbitrary and capricious and unsupported by substantial evidence. (Id.) 22 A. Objection to Extra-Record Document 23 As a threshold matter, Defendant objects to the extra-record documents attached as 24 Exhibit A to Plaintiff’s Motion for Summary Judgment. (Doc. 17-1 at 1–11). 25 A reviewing court generally may not consider extra-record documents. See Lands 26 Council v. Powell, 395 F.3d 1019 , 1030 (9th Cir. 2005). However, “narrowly construed 27 and applied exceptions” permit a court to admit extra-record documents: (1) if admission 28 is necessary to determine whether the agency has considered all relevant factors and has 1 explained its decision, (2) if the agency has relied on documents not in the record, (3) 2 when supplementing the record is necessary to explain technical terms or complex 3 subject matter, or (4) when plaintiffs make a showing of agency bad faith. Id. (quotations 4 and citations omitted); Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125 , 1131 5 (9th Cir. 2010). 6 Here, Exhibit A includes ONHIR’s relocation benefits application evaluation for 7 Plaintiff’s brother. (Doc. 17-1 at 1–11). Plaintiff argues the Exhibit shows that her 8 brother returned to the HPL while attending Northern Arizona University “during breaks 9 and school holidays during the school years,” which was less often than Plaintiff’s return 10 visits to Red Lake when she was in Albuquerque. (Doc. 21 at 12). Plaintiff further 11 maintains that despite her brother having fewer visits than Plaintiff, ONHIR certified 12 Plaintiff’s brother as eligible for relocation benefits. (Id.) Although Plaintiff fails to 13 articulate which narrow exception applies, the Court interprets her assertions as an 14 argument that admission is necessary to determine whether ONHIR has considered all 15 relevant factors and has explained its decision. 16 Defendant argues the Court should reject Plaintiff’s Exhibit under Tso v. Off. of 17 Navajo & Hopi Indian Relocation because the Exhibit offers “only a limited snapshot 18 into the administrative record.” (Doc. 23 at 6 citing 2019 WL 1877360 , at *8 (D. Ariz. 19 Apr. 26, 2019)). Defendant misapprehends Tso. There, the court rejected the plaintiff’s 20 attempt to admit five prior written decisions by the IHO because those decisions offered 21 “only a limited snapshot into the administrative record of those five unrelated relocation 22 benefits cases.” Tso, 2019 WL 1877360 , at *8 (emphasis added). Here, Plaintiff’s 23 brother’s relocation application is not unrelated and is relevant insofar as both Plaintiff 24 and her brother temporarily left the HPL for education and work. The Court will 25 therefore supplement the record with this Exhibit. 26 B. Plaintiff’s Residency 27 Under the Act, the applicant bears the burden of establishing, on December 22, 28 1974, they were (1) “the head of household” and (2) a legal resident “of an area 1 partitioned to the Tribe of which they were not [a] member[].” 25 C.F.R. § 700.147 (a–b). 2 Here, the parties stipulated that Plaintiff attained head-of-household in August of 1975. 3 (Docs. 17 at 10; 19 at 3). Plaintiff’s residency in August of 1975 is the sole issue. 4 The term “residence” in the final rule “requires an examination of a person’s intent 5 to reside combined with manifestations of that intent.” 49 Fed. Reg. 22 , 278; see also 6 Charles v. Off. of Navajo & Hopi Indian Relocation, 774 Fed. Appx. 389 , 390 (9th Cir. 7 2019). Such manifestations of intent may include ownership of livestock, ownership of 8 improvements, grazing permits, livestock sales receipts, homesite leases, medical records, 9 school records, employment records, mailing address records, banking records, voting 10 records, census data, court records, the Joint Use Area roster, and any other relevant data. [11] 49 Fed. Reg. 22 , 278. 12 The “temporarily away” policy provides that if a plaintiff temporarily left the HPL 13 to pursue education, a plaintiff “can still establish [her] legal residency by showing 14 substantial and recurring contacts with [her] home within the HPL.”3 See Tso, 2019 WL 15 1877360, at *4. The issue is whether Plaintiff maintained “substantial and recurring 16 contacts” with the HPL site while attending Southwestern Indian Polytechnic Institute 17 (“SIPI”) in Albuquerque such that she was still a resident of the HPL in August of 1975 18 when she attained head of household. 19 Plaintiff argues that she satisfied the legal resident requirement for two reasons. 20 First, she argues her schooling in Albuquerque falls under the “temporarily away” policy. 21 (Doc. 17 at 8). Second, she argues the IHO’s failure to find Plaintiff a legal resident of 22 the HPL was arbitrary and capricious because ONHIR certified her mother and her [23] 3 The parties dispute whether the IHO applied the correct legal standard to Plaintiff’s 24 residency consideration. (Doc. 17 at 5, 11; Doc. 19 at 12). Plaintiff cites Charles to argue the substantial and recurring contacts standard is no longer the correct standard 25 under current regulations. 774 F. App’x at 390. Nowhere in the non-binding memorandum disposition, however, did the Ninth Circuit state the substantial and 26 recurring contacts standard did not apply to the “temporarily away” policy. Id. Further, notwithstanding this disposition, courts in this district have still applied the substantial 27 and recurring contacts standard to determine whether an applicant satisfied ONHIR’s “temporarily away policy.” See Barton v. Off. of Navajo & Hopi Indian Relocation, 2023 28 WL 2991627 , at *3 (D. Ariz. Apr. 18, 2023); Begay v. Off. of Navajo & Hopi Indian Relocation, 2022 WL 3285443 , at *2 (D. Ariz. Aug. 11, 2022). 1 brother. (Id. at 12). The Court is unpersuaded. 2 1. Temporarily Away Policy 3 Plaintiff argues her schooling in Albuquerque falls under the “temporarily away” 4 policy and that the IHO ignored that she maintained her chapter membership at Red 5 Lake; returned to Red Lake to vote; and kept her belongings in the family’s shack on the 6 HPL until that shack was moved to the NPL in 1976. (Doc. 17 at 11). 7 The IHO found there was a “serious question about whether [Plaintiff’s] absence 8 from Red Lake was temporary and, more importantly, whether she maintained 9 ‘substantial’ contacts with her family’s home” while obtaining her education in 10 Albuquerque. (Doc. 13 at 263). The IHO ultimately concluded Plaintiff did not maintain 11 substantial and recurring contacts with Red Lake to be considered as having retained that 12 area as her legal residence by the time she attained head of household status in August of 13 1975. (Id. at 262). The evidence in the record adequately supported this finding. 14 The IHO found Plaintiff’s visits to Red Lake were “quixotic and arduous—a 2415 hour trip each way on a Greyhound bus . . . at a cost of $36.00 each time.” (Id. at 264). 16 He noted that Plaintiff’s visits were “brief and primarily social,” citing to Plaintiff’s 17 testimony about being homesick. (Id.) The IHO reasoned that the practical 18 impediments—the bus travel from Albuquerque to Flagstaff, finding a ride or hitchhiking 19 to Tuba City, finding a subsequent ride or hitchhiking to Red Lake, then repeating the 20 process—discredited Plaintiff’s claim of visiting once a month. (Id.) The IHO further 21 stated the emotional reasons for visitation, presumably Plaintiff being homesick, 22 outweighed any claim that her visits, “however rare, [were] either substantial or regularly 23 recurring.” (Id.) 24 The IHO further reasoned that after Plaintiff’s graduation from SIPI she obtained 25 an apartment in Albuquerque, a New Mexico driver’s license, a job, and a vehicle. (Id.) 26 The IHO found the “materiality of her living situation in Albuquerque” far outweighed 27 her nominal visits to Red Lake. (Id.) He rejected Plaintiff’s claims that she cleaned on 28 the weekends to pay for her Greyhound bus fare because she could not clean and take the 1 Greyhound back to Red Lake on the same weekend. (Id. at 265). He thus found her 2 claim about maintaining substantial and recurring contacts with Red Lake while working 3 and until her family abandoned the HPL cornfield was “entirely unbelievable.” (Id.) The 4 IHO therefore concluded the preponderance of evidence demonstrated Plaintiff’s legal 5 residence was in Albuquerque at the time she became a self-supporting head of 6 household in August of 1975. (Id. at 267). 7 Although Plaintiff argues she kept her personal belongings at the HPL and she 8 returned home to vote for tribal elections, her mother’s testimony belies Plaintiff’s 9 claims. Indeed, her mother testified that before they moved to the Navajo side none of 10 Plaintiff’s belongings were kept on the Hopi side. (Id. at 178). Even if, however, 11 Plaintiff’s mother had not contradicted Plaintiff’s claim, the IHO found Plaintiff’s visits 12 so infrequent that it would have been immaterial if she kept personal belongings at Red 13 Lake. (Id. at 266). As to Plaintiff voting in tribal elections, Defendant notes that the Red 14 Lake Chapter contained HPL, NPL, and Bennett Freeze lands and thus voting is not an 15 activity tied to the HPL. (Id. at 208). Defendant supports this argument by citing to the 16 family’s Bureau of Indian Affairs Enumeration, which shows the Red Lake Chapter 17 contained HPL, NPL, and Bennett Freeze lands. (Id.) But even if Plaintiff’s Red Lake 18 Chapter membership could support a contrary conclusion, the IHO reasonably concluded 19 from the evidence in the record that by August of 1975, Plaintiff’s contacts with Red 20 Lake were not substantial and recurring and that she was a resident of New Mexico. 21 The Court further notes Plaintiff introduced scant evidence regarding 22 manifestations of her intent to reside on the HPL at the time she graduated from SIPI in 23 August of 1975. Indeed, the record contains no evidence of personal livestock 24 ownership, grazing permits, homesite leases, or any improvements enumerated on the 25 HPL. (Doc. 13 at 260–261). Plaintiff also introduced no evidence of public health 26 records, school records, military records, employment records, mailing address records, 27 banking records, driver’s license records, or other relevant data manifesting her intent to 28 remain or reside at the HPL site. 49 Fed. Reg. 22 , 278. 1 Under the “highly deferential” standard of the APA, the Court finds the IHO 2 provided a rational explanation for why the temporarily away policy did not apply here 3 and that “a reasonable basis exists for [his] decision.” Kern County Farm Bureau, 450 4 F.3d at 1076; see also Tso, 2019 WL 1877360 , at *4 (finding the “temporarily away” 5 policy did not apply because any visits plaintiff made to the HPL were “social and 6 incidental” and not enough to show substantial and recurring contacts for the exception to 7 apply). 8 2. Similarly Situated Family Members 9 Plaintiff further argues that the IHO’s decision is arbitrary and capricious because 10 the IHO certified Plaintiff’s mother and brother for relocation benefits but not Plaintiff. 11 (Doc. 17 at 12). To support this proposition, Plaintiff cites Mike ex rel. Mike v. Off. of 12 Navajo & Hopi Indian Relocation, where the court found employment was a valid reason 13 for being temporarily away from a legal residence. (Id. citing 2008 WL 54920 , at *1 (D. 14 Ariz. Jan. 2, 2008)). In accordance with this decision, Plaintiff argues the IHO should 15 have applied that same policy to her case because ONHIR found it applied to Plaintiff’s 16 brother while he was away from Red Lake for his education and employment. (Doc. 17 17 at 15). The Court is unconvinced. 18 Plaintiff’s case is distinguishable from her mother and her brother’s factual 19 circumstances. ONHIR’s “obligation is only that the agency applies the law consistently 20 to cases with similar material facts; it does not require the agency find the same facts for 21 different parties, in different proceedings, and based on different evidence.” Daw v. 22 Office of Navajo & Hopi Indian Relocation, 2020 WL 5632121 , at *4 (D. Ariz. Sep. 18, 23 2020) (internal citation omitted). First, as to Plaintiff’s mother, no evidence in the record 24 indicates ONHIR applied the temporarily away policy to her case. Second, as to 25 Plaintiff’s brother, ONHIR concluded he attended Northern Arizona University but 26 dropped out of college “after May 1974” and then worked as a fire fighter from the 27 family’s HPL home from June to August of 1974. (Doc. 17-1 at 3). Plaintiff’s brother 28 worked for a Navajo Communications Company for the remainder of 1974 on the Navajo 1 Reservation. (Id.) These findings imply ONHIR found Plaintiff’s brother did not 2 establish a legal residence outside the HPL because he dropped out of school and 3 returned home. Plaintiff, on the other hand, graduated from SIPI and then continued to 4 live and work in New Mexico. She obtained a New Mexico driver’s license, bought a 5 vehicle, rented an apartment in Albuquerque, and spent most of her time there. (Doc. 13 6 at 264). Plaintiff’s correct that employment is a valid reason for being temporarily away, 7 but Plaintiff maintained her employment in Albuquerque until 1991, far longer than her 8 brother’s brief employment absence. (Id. at 64). Plaintiff’s factual circumstances plainly 9 differ from her brother’s and the IHO must base his decision on the record before him. 10 See Daw, 2020 WL 5632121 , at *4 (rejecting plaintiff’s argument that an IHO’s prior 11 findings controlled his later findings); Akee v. Off. of Navajo & Hopi Indian Relocation, [12] 907 F. Supp. 315, 319 (D. Ariz. 1995), aff’d, 107 F.3d 14 (9th Cir. 1997) (finding 13 ONHIR need not explain the reason it denied relocation benefits to plaintiff while 14 granting benefits to others when the cases are distinguishable). 15 C. IHO’s Credibility Findings 16 Last, Plaintiff argues the IHO’s credibility findings are not supported by 17 substantial evidence and that he cherry-picked from the record rather than engaging in a 18 holistic review. (Doc. 17 at 15–18). She argues the IHO erred in finding her return visits 19 to Red Lake from Albuquerque were not credible. (Id.) Defendant argues substantial 20 evidence supports the IHO’s credibility determinations. (Doc. 19 at 17). 21 The substantial evidence standard governs when reviewing an IHO’s credibility 22 findings. This is often described as “more than a mere scintilla, but less than a 23 preponderance.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). If “the decision of 24 an ALJ rests on a negative credibility evaluation, the ALJ must make findings on the 25 record and must support those findings by pointing to substantial evidence on the record.” 26 Ceguerra v. Secretary of Health & Hum. Servs., 933 F.2d 735, 738 (9th Cir. 1991). 27 “[I]f an ALJ has grounds for disbelieving material testimony, it is both reasonable 28 and desirable to require the ALJ to articulate those grounds in the original decision.” Id. 1 at 740 (citing Varney v. Secretary of Health & Hum. Servs., 859 F.2d 1396, 1399 (9th 2 Cir. 1988)). But an IHO’s “credibility findings are granted substantial deference by 3 reviewing courts.” Begay, 305 F. Supp. 3d at 1049 (quoting De Valle v. Immigr. & 4 Naturalization Serv., 901 F.2d 787, 792 (9th Cir. 1990)). This deference stems from the 5 IHO being “in a position to observe [a witness]’s tone and demeanor, to explore 6 inconsistencies in testimony, and to apply workable and consistent standards in the 7 evaluation of testimonial evidence. He[/she] is . . . uniquely qualified to decide whether a 8 [witness]’s testimony has about it the ring of truth.” Id. (quoting Sarvia–Quintanilla v. 9 United States Immigr. & Naturalization Serv., 767 F.2d 1387, 1395 (9th Cir. 1985) 10 (alterations in original). 11 The Court finds the IHO’s credibility findings regarding Plaintiff’s return visits to 12 Red Lake are supported by substantial evidence. As discussed, the IHO based his 13 determination on the length and cost of the trip from Albuquerque to Red Lake—“a 2414 hour trip each way on a Greyhound bus . . . at a cost of $36.00 each time.” (Doc. 13 at 15 263–64). He noted that Plaintiff’s visits were “brief and primarily social,” citing to 16 Plaintiff’s testimony about being homesick. (Id.) He reasoned that the practical 17 impediments—the bus travel from Albuquerque to Flagstaff, finding a ride or hitchhiking 18 to Tuba City, finding a subsequent ride or hitchhiking to Red Lake, then repeating the 19 process—discredited Plaintiff’s claim of visiting once a month. (Id.) The IHO further 20 stated the emotional reasons for visitation, presumably Plaintiff being homesick, 21 outweighed any claim that her visits, “however rare, [were] either substantial or regularly 22 recurring.” (Id.) Last, he highlighted that after Plaintiff’s graduation from SIPI she 23 obtained an apartment in Albuquerque, a New Mexico driver’s license, a job, and a 24 vehicle, thus concluding the “materiality of her living situation in Albuquerque” far 25 outweighed her nominal visits to Red Lake. (Id.) 26 The IHO also questioned Plaintiff’s testimony about the shack she slept in that 27 allegedly existed 1/4 miles from the family’s home. (Id. at 149; 267). Plaintiff testified 28 there was a shack, corral, tent, and cornfield on the HPL, specifically stating the shack 1 was as big as the hearing room. (Id. at 247; 161). The IHO noted, however, that neither 2 a shack nor a corral was enumerated on HPL as being owned by any member of 3 Plaintiff’s family. (Id. at 267). Given that the shack and corral were claimed to be within 4 1/4 mile of Plaintiff family’s residence, the IHO found the BIA enumerators “would have 5 had to be blind to miss a structure as large as the described shack.” (Id. at 267). 6 The IHO’s credibility findings should not be disturbed. The IHO provided “more 7 than a mere scintilla” of evidence in support of his conclusions. Orteza, 50 F.3d at 749 . 8 Although Plaintiff argues her Red Lake Chapter membership demonstrates her visits 9 were not social in nature, “credibility findings are granted substantial deference” and the 10 “[IHO] is . . . uniquely qualified to decide whether [] testimony has about it the ring of 11 truth.” Begay, 305 F. Supp. 3d at 1049 (citations omitted). Plaintiff may disagree with 12 how the IHO considered the evidence, but the Court finds the IHO had sufficient reason 13 to deem her testimony regarding her return visits not credible. See Orteza, 50 F.3d at 749 14 (finding that the ALJ’s decision “must be upheld” even if the evidence “is susceptible of 15 more than one rational interpretation”). 16 IV. Conclusion 17 For these reasons, the Court will deny Plaintiff’s Motion for Summary Judgment 18 (Doc. 17) and grant Defendant’s Cross-Motion for Summary Judgment (Doc. 19). The 19 IHO’s decision to deny Plaintiff’s relocation benefits appeal, based on a lack of legal 20 residence in August of 1975, was supported by substantial evidence and not arbitrary and 21 capricious. 22 Accordingly, 23 IT IS HEREBY ORDERED that the Independent Hearing Officer’s decision 24 dated July 14, 2016 (Doc. 13 at 258–67) is affirmed. 25 IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment 26 (Doc. 17) is denied. 27 IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary 28 Judgement (Doc. 19) is granted. 1 IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment || accordingly and terminate this case. 3 Dated this 23rd day of June, 2023. [4] 5 ZL Luu □ 6 norable’Diang4. Hunfetewa 7 United States District Fudge [28] -12-