Sands 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 Sarah Sands, et al., No. CV-22-08131-PCT-JAT 10 Plaintiffs, ORDER 11 v. 12 Office of Navajo and Hopi Indian Relocation, [13] Defendant. [14] 15 Pending before the Court are Plaintiffs’ Motion for Summary Judgment (Doc. 14) 16 and Defendants’ Cross-Motion for Summary Judgment (Doc. 16). The Court now rules on 17 the motions. 18 I. BACKGROUND 19 On March 20, 2023, Plaintiffs filed the pending Motion for Summary Judgment 20 (Doc. 14). Defendant then filed a Response and Cross-Motion for Summary Judgment on 21 April 19, 2023 (Doc. 16). Plaintiffs filed a Response to Defendant’s Cross-Motion and 22 Reply (Doc. 22), and Defendant filed a Reply (Doc. 27). Here, Plaintiffs allege that the 23 Independent Hearing Officer (“IHO”) erred in denying their claim for relocation assistant 24 benefits provided by the Navajo-Hopi Settlement Act, Pub. L. No. 93-531, 88 Stat. 1712 25 (1974) (the “Settlement Act”). 26 A. The Settlement Act 27 The Settlement Act attempted to resolve an inter-tribal conflict between the Hopi 28 and Navajo Indians by authorizing a court-ordered partition of the land that was then1 jointly held by the two tribes. See Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 2 F.2d 1119 , 1121–22 (9th Cir. 1989). The Settlement Act further created the predecessor to 3 the Office of Navajo and Hopi Indian Relocation (“ONHIR”) to provide services and 4 benefits to relocate individuals who resided on land allocated to the other tribe at the time. 5 See Laughter v. Off. of Navajo & Hopi Indian Relocation, CV-16-08196-PCT-DLR, 2017 6 WL 2806841 , at *1 (D. Ariz. June 29, 2017) (citing Id.). To be eligible for benefits under 7 the Settlement Act, a Navajo applicant must provide that she was a legal resident of the 8 Hopi Partitioned Land (“HPL”) as of December 22, 1974, and that she was the head of 9 household at that time. See id. The applicant bears the burden of proving legal residence 10 and head of household status. See id. (citing 25 C.F.R. § 700.147 (1986)). 11 B. Facts and Procedural History 12 Plaintiff Sara Sands (“S.S.”) is an enrolled member of the Navajo Nation who 13 applied for relocation benefits under the Settlement Act on August 20, 2010. (See Doc. 15 14 at 1). The application was denied on July 3, 2012, “based on a finding that she did not meet 15 the eligibility requirement of having resided on the Hopi Partitioned Lands (HPL) on or 16 before December 22, 1973 and as of December 22, 1974 . . . .” (Id. at 2). Plaintiff Lillie 17 Schierholz (“L.S.”) is an enrolled member of the Navajo Nation who applied for relocation 18 benefits under the Settlement Act on August 23, 2010. (See id.). The application was denied 19 on July 11, 2012, for the same reasons S.S.’s application was denied. (See id.). Both 20 Plaintiffs appealed, and on November 20, 2015, a consolidated hearing was held before an 21 IHO. (See id.). 22 At the hearing the IHO heard testimony from both Plaintiffs, S.S.’s daughter Renee, 23 Plaintiffs’ uncle Sammy Watson and his wife Betty, on behalf of the Plaintiffs. (See Doc. 24 8 at 234–35). Joseph Shelton testified on behalf of Defendant. (See id. at 235 ). Plaintiffs 25 and their witnesses testified that S.S. and L.S. lived at their grandmother’s homesite on 26 HPL through 1974, although L.S. was temporarily away “for schooling and afterwards 27 employment.” (Doc. 14 at 1–2). Joseph Shelton, testified that S.S. and L.S. were not listed [28] 1 on the Bureau of Indian Affairs (“BIA”) enumeration.1 (See Doc. 16 at 6). He also testified 2 that he was bilingual and available to assist applicants with their relocation application 3 during the time the Plaintiffs submitted their applications. (See id. at 7 ). 4 On June 3, 2016, the IHO issued a decision denying Plaintiffs’ appeal and affirming 5 Defendant’s denial of benefits. (See Doc. 8 at 236; Doc. 8-2 at 163). To support his 6 decision, the IHO cited inconsistencies between Plaintiffs’ applications and testimony. (See 7 Doc. 8 at 237; Doc. 8-2 at 163). The IHO also noted the absence of Plaintiffs’ names from 8 the BIA enumeration. (See Doc. 8 at 238; Doc. 8-2 at 163). The IHO stated that “[t]his is 9 not a case where applicant can complain that the BIA enumerators simply skipped over 10 them during the enumeration process” because neighbors of the Plaintiffs’ claimed 11 homesite were included in the enumeration. (Doc. 8 at 238). Additionally, “given the 12 breadth of the claimed improvements . . . it would be highly unlikely to have been 13 missed . . . .” (Id. at 238–39). For S.S.’s application specifically, the IHO also stated that 14 “applicant’s husband Ralph has an imperative to avoid driving to the top of Black Mesa in 15 inclement weather since he needed to commute to work daily” and that applicant had other 16 relatives living elsewhere that she could have been living with to support his conclusion. 17 (Id. at 238). 18 The IHO also made findings about the witnesses’ credibility. The IHO found that 19 Plaintiffs were not credible witnesses regarding their residency. (See Doc. 8 at 234; Doc. 20 8-2 at 161). The IHO found that Sammy and Betty Watson were “indefinite about the 21 frequency of seeing applicant[s]” which “limited” their credibility. (See Doc. 8 at 235; Doc. 22 8-2 at 162). Finally, the IHO found that Renee Sands and Joseph Shelton were credible 23 witnesses. (See Doc. 8 at 235; Doc. 8-2 at 161–62). 24 On July 20, 2016, Defendant took Final Agency Action and upheld the denial of 25 Plaintiffs’ applications. (See Doc. 15 at 2–3). Plaintiffs then filed their Complaint on July 26 19, 2022, seeking judicial review of Defendant’s administrative decision that they are not [27] 1 The BIA performed an “enumeration” or census of the people and improvements to land 28 located within the former joint-use area that became HPL and Navajo Partitioned Land (“NPL”) in 1974 and 1975. 1 entitled to relocation benefits under the Settlement Act. (Doc. 1). 2 II. STANDARD OF REVIEW 3 The Administrative Procedure Act (“APA”) governs judicial review of agency 4 decisions under the Settlement Act. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 5 1995). The APA provides that the Court may set aside an administrative agency’s decision 6 only if that decision was “arbitrary, capricious, an abuse of discretion, not in accordance 7 with law, or unsupported by substantial evidence.” Bedoni v. Navajo-Hopi Relocation 8 Comm’n, 878 F.2d 1119 , 1122 (9th Cir. 1984) (citing 5 U.S.C. § 706 (2)(A), (E) (1982); 9 Walker v. NHIRC, 728 F.2d 1276, 1278 (9th Cir. 1984)). “Substantial evidence is more 10 than a mere scintilla, but less than a preponderance.” Orteza v. Shalala, 50 F.3d 748 , 749 11 (9th Cir. 1995). Under this standard, the Court applies a narrow and highly deferential 12 standard of review: To make this finding the court must consider whether the [13] decision was based on the consideration of the relevant factors 14 and whether there has been a clear error of judgment. Although this inquiry into the facts is to be searching and careful, the [15] ultimate standard of review is a narrow one. The court is not 16 empowered to substitute its judgment for that of the agency. 17 Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on 18 other grounds by Califano v. Sanders, 430 U.S. 99 (1977) (citations omitted). 19 Unlike summary judgment in an original district court proceeding, the function of 20 the Court in a review of an administrative proceeding “is to determine whether or not as a 21 matter of law the evidence in the administrative record permitted the agency to make the 22 decision it did.” Occidental Engineering Co. v. I.N.S., 753 F.2d 766 , 769 (9th Cir. 1985). 23 “Where evidence is susceptible of more than one rational interpretation, it is the [IHO’s] 24 conclusion which must be upheld; and in reaching his findings, the [IHO] is entitled to 25 draw inferences logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450 , 26 1453 (1984) (citations omitted). Ultimately, the Court must affirm if the agency 27 “considered the relevant factors and articulated a rational connection between the facts 28 found and the choices made.” Ranchers Cattleman Action Legal Fund United 1 Stockgrowers of America v. U.S. Dep’t of Agr., 499 F.3d 1108, 1115 (9th Cir. 2007) 2 (quoting City of Sausalito v. O’Neill, 386 F.3d 1186 , 1206 (9th Cir. 2004)). 3 III. CROSS-MOTIONS FOR SUMMARY JUDGMENT 4 Plaintiffs contend that the IHO’s decision “is unsupported by substantial evidence, 5 is arbitrary, capricious and contrary to law.” (Doc. 14 at 17). Defendant argues that 6 “Plaintiffs have not met their burden to establish that the IHO’s decision was a[r]bitrary 7 and capricious or unsupported by substantial evidence.” (Doc. 16 at 9). 8 A. Extra-Record Material 9 As a threshold matter, Defendant argues that Plaintiffs are attempting to improperly 10 include “extra record materials” through exhibits attached in their Motion for Summary 11 Judgment and Response. (See Doc. 16 at 8; Doc. 27 at 8). Defendant seeks to exclude 12 Exhibits 3–8 of Plaintiffs’ Motion for Summary Judgment and Exhibits 7 and 8 of 13 Plaintiffs’ Response. (Doc. 27 at 8). Exhibits 3–8 are transcripts of prior IHO decisions. 14 (See Doc. 14-1; Doc. 22-1).“[T]he Supreme Court has expressed a general rule that courts 15 reviewing an agency decision are limited to the administrative record.” Lands Council v. 16 Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (citing Fla. Power & Light Co. v. Lorion, 470 17 U.S. 729 , 743–44 (1985)). There are “narrow exceptions” for when a court may consider 18 “extra-record” evidence: 19 (1) If admission is necessary to determine whether the agency 20 has considered all relevant factors and has explained its 21 decision, (2) if the agency has relied on documents not in the 22 record, (3) when supplementing the record is necessary to 23 explain technical terms or complex subject matter, or (4) when 24 plaintiffs make a showing of agency bad faith. 25 Lands Council, 395 F.3d at 1030 (internal quotation marks omitted) (citing Southwest Ctr. 26 for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443 , 1450 (9th Cir. 1996)). 27 Plaintiffs argue that “exception 1, 3 and 4 all apply in this case.” (Doc. 22 at 14). 28 For the first exception, Plaintiffs contend that prior IHO decisions have repeatedly been 1 used to demonstrate whether the IHO considered all relevant factors. (Id. at 14). Plaintiffs 2 argue the Court has relied on the “precedential effect [of prior decisions] when the evidence 3 of one case on a crucial issue is the same or similar in his other decisions.” (Id. at 15). Thus, 4 the prior decisions are necessary to show the IHO did not consider all relevant factors or 5 explain his decision in this case. (See id. at 17). “Because an agency must follow its own 6 precedent or else explain any deviation, this Court may consider prior ONHIR decisions to 7 determine whether a decision is arbitrary and capricious.” Stago v. Off. of Navajo & Hopi 8 Indian Relocation, 562 F. Supp. 3d 95 , 102 (D. Ariz. 2021) (citing Torpey v. Off. of Navajo 9 & Hopi Indian Relocation, No. CV-17-08184-PCT-SMB, 2019 U.S. Dist. LEXIS 154168 , 10 at *9–10 (D. Ariz. Sept. 6, 2019)). “However, previous decisions only serve this purpose 11 if they carry precedential value in the case at hand.” See Whitehair v. Off. of Navajo & 12 Hopi Indian Relocation, No. CV-17-08278-PCT-DGC, 2018 WL 6418665 , at *3 (D. Ariz. 13 Dec. 6, 2018). Therefore, this Court must determine if the attached cases “set forth ONHIR 14 policy or if they involve facts indistinguishable from the instant case.” Stago, 562 F. Supp. 15 3d at 102. 16 In Stago, the court refused to admit exhibits “to demonstrate that ‘numerous 17 applicants for benefits have been certified to receive them despite . . . not appearing in the 18 enumeration.’” Id. The court, in part, excluded them because “the plaintiff cited no 19 authority to suggest that the decisions had precedential value, and where the Court could 20 not conclude ‘that Plaintiff’s hand-picked sample of cases represents a settled course of 21 adjudication and a general policy by which Defendant’s exercise of discretion will be 22 governed.’” Id. (quoting Whitehair, 2018 WL 6418665 , at *3). Here, Plaintiffs argue the 23 extra-records demonstrate that the IHO did not consider all relevant factors because the 24 IHO certified other applicants for benefits when they were not listed in the BIA 25 Enumeration. (See Doc. 22 at 17). This is the same argument the court in Stago rejected. 26 Plaintiffs did not specify any other reason the cases attached are indistinguishable from 27 their case. Thus, the Court will not supplement the record with Exhibits 3–8 under the first 28 exception. 1 For the third exception, Plaintiffs contend that “supplementation is needed to 2 explain the terms ‘residence’ and ‘temporarily away’ in the context of the complex 3 subject . . . .” (Doc. 22 at 17). In response, Defendant argues “this Court has ruled on 4 residency issues in ONHIR cases dozens of times over several decades and is therefore 5 well versed in the concept of residency.” (Doc. 27 at 9). Plaintiffs fail to cite case law where 6 a court has used transcripts of prior decisions to explain the term “residence.” Therefore, 7 the Court concludes that Plaintiffs have not met the “heavy burden to show that additional 8 materials sought are necessary . . . .” Fence Creek Cattle Co. v. U.S. Forest Service, 602 9 F.3d 1125, 1131 (9th Cir. 2010). 10 Additionally, Defendant argues that the term “temporarily away” is irrelevant to this 11 case because Plaintiffs waived this argument. (See id.) Defendant contends that “Plaintiffs 12 have waived any argument that they were ‘temporarily away’ from the HPL . . . by failing 13 to raise this argument in their MSJ.” (Doc. 27 at 3). “[A]rguments raised for the first time 14 in a reply brief are waived.” Turtle Island Restoration Network v. U.S. Dep’t of Commerce, [15] 672 F.3d 1160 , 1166 n.8 (9th Cir. 2012). Plaintiffs did not argue they were temporarily 16 away from their homesite until their Response. Thus, Plaintiffs have waived this argument 17 and the Court does not need to supplement the record to explain the term “temporarily 18 away.” 19 For the fourth exception, Plaintiffs contend that “contrary enumeration decisions of 20 the same decision-maker without adequate explanation demonstrates unequal treatment 21 and bad faith.” (Doc. 22 at 17). Defendant argues that this argument is “exactly what the 22 [c]ourt in Tso rejected . . . .” (Doc. 27 at 9). In Tso v. Off. of Navajo & Hopi Indian 23 Relocation, the court considered whether five prior IHO decisions could be admitted under 24 the fourth exception to establish the agency acted in bad faith. No. CV-17-08183-PCT-JJT, [25] 2019 WL 1877360 at *7 (D. Ariz. Apr. 26, 2019). The court found that these decisions 26 “offered only a limited snapshot into the administrative record of those five unrelated 27 relocation benefits cases” and did not admit the exhibits. Id. at *8 . Similarly, here, Plaintiffs 28 are attempting to supplement the record with six prior IHO decisions. Therefore, following 1 the court’s reasoning in Tso, the Court will not supplement the record with these exhibits 2 under the fourth exception. 3 B. BIA Enumeration 4 Next, Plaintiffs allege that the IHO, “failed to properly consider, the testimony of 5 [S.S], [L.S.] and their witnesses about their absence from the Enumeration, because he 6 decided that the BIA enumeration was sufficient evidence to deny their application.” (Doc. 7 14 at 9). The BIA enumeration alone cannot establish residence, but it may be used as 8 prima facie evidence of residency that the Plaintiff then has the burden of disproving. 9 Here, the IHO relied, in part, on the BIA enumeration to establish that Plaintiffs did 10 not reside on HPL as of December 22, 1974. (See Doc. 8 at 236–39; Doc. 8-2 at 163–66). 11 The IHO used inconsistencies between the Plaintiffs’ applications and their testimony, and 12 the aerial map created by the BIA to determine Plaintiffs failed to overcome the prima facie 13 evidence establishing their residency. (See Doc. 8 at 239; Doc. 8-2 at 596). Thus, the IHO 14 did not base his findings exclusively on the BIA enumeration, but permissively used the 15 BIA enumeration as part of a larger body of evidence establishing Plaintiffs did not reside 16 on HPL as of December 22, 1974. 17 C. Credibility Findings 18 Plaintiffs also allege that the IHO’s credibility findings for Plaintiffs and their 19 witnesses were not supported by substantial evidence. (See Doc. 14 at 11, 13). “When the 20 decision of an ALJ rests on the negative credibility evaluation, the ALJ must make findings 21 on the record and must support those findings by pointing to substantial evidence on the 22 record.” Ceguerra v. Sec’y of Health & Hum. Servs., 933 F.2d 735, 738 (9th Cir. 1991) 23 (citation omitted). The Ninth Circuit further explained that “if an ALJ has grounds for 24 disbelieving material testimony, it is both reasonable and desirable to require the ALJ to 25 articulate those grounds in the original decision.” Id. at 740 (citing Varney v. Sec’y of 26 Health & Hum. Servs., 859 F.2d 1396 (9th Cir. 1988)). Nevertheless, an agency’s 27 “credibility findings are granted substantial deference by reviewing courts.” De Valley v. 28 I.N.S., 901 F.2d 787, 792 (9th Cir. 1990) (citations omitted). 1 Here, the IHO found that Plaintiffs were not credible witnesses regarding their 2 residency, and that Sammy and Betty Watson were “indefinite about the frequency of 3 seeing applicant[s]” which “limited” their credibility. (See Doc. 8 at 234–35, Doc. 8-2 at 4 161–62). Plaintiffs contend that the IHO’s credibility findings were unsupported “with 5 little if any specific and cogent reason.” (Doc. 14 at 12). The record, however, demonstrates 6 that the IHO offered specific and cogent reasons supporting his credibility findings as to 7 the Plaintiffs. These findings are entitled to substantial deference by the Court. See De 8 Valle, 901 F.2d at 792 . 9 The IHO found that the Plaintiffs were not credible regarding their residency 10 because their testimony was inconsistent with their written applications. (See Doc. 8 at 234, 11 Doc. 8-2 at 161). “[A]n IHO may adequately find a lack of credibility based on internal 12 inconsistencies in a witness’s testimony . . . .” Begay v. Off. of Navajo & Hopi Indian 13 Relocation, No. CV-20-08102, 2021 WL 4247919 , at *4 (D. Ariz. 2021). There were 14 inconsistencies between S.S. and L.S.’s ONHIR applications and their testimony during 15 the hearing. On S.S.’s application, she answered that she lived on NPL on December 22, 16 1974, two different times. (See Doc. 8 at 233). However, “[i]n her testimony at the appeal 17 hearing, applicant’s testimony was completely opposite . . . .” (Id. at 237). On L.S.’s 18 application, she wrote that she was living with her grandfather and grandmother “when my 19 late grandfather was removed from his land on top of Black Mesa.” (Doc. 8-2 at 160) 20 (internal quotation marks omitted). However, “her testimonial claim is that she lived at [her 21 grandmother’s] residence . . . .” (Id. at 163). 22 Plaintiffs contend that the IHO cannot base his credibility determination on these 23 inconsistencies because they did not understand what the application was asking or what 24 “under the penalty of perjury” meant. (Doc. 22 at 6). “Plaintiffs who were 59 and 71 when 25 they applied, spoke Navajo as their primary language and failed to understand what certain 26 questions were asking them.” (Id. at 3). Plaintiffs then cite asylum application cases where 27 courts have held that applications “completed without the assistance of counsel . . . should 28 be read charitably.” (Doc. 22 at 3) (citation omitted). Defendant points to three reasons 1 why Plaintiffs’ arguments are without merit. First, L.S.’s daughter helped her fill out her 2 application. (See Doc. 27 at 3). Second, “Joseph Shelton testified that he is bilingual, and 3 that he (or another bilingual ONHIR employee) would have been available to assist 4 Plaintiffs.” (Id. at 3-4). Third, the IHO stated that the responses in the application itself 5 reveal that the Plaintiffs understood the questions. (Id. at 4). “It is evident that [S.S.] 6 understood the distinction between Hopi Partitioned Land and Navajo Partitioned Land 7 and she included that distinction about the partitioning in her answers to the residency 8 questions on her application.” (Doc. 8-2 at 164). Plaintiffs also claim the IHO cannot base 9 his credibility determination on these inconsistencies because “he did not give them an 10 opportunity to reconcile them.” (Doc. 22 at 6). However, as Defendant points out, Plaintiffs 11 were asked about the inconsistencies on cross-examination. (See Doc. 16 at 5–6). Finally, 12 Plaintiffs contend that their Denial Letters contained erroneous information and, if 13 corrected, would support their testimony. (See Doc. 14 at 3). 14 The Ninth Circuit has recognized that the IHO alone is “in a position to observe [a 15 witness]’s tone and demeanor, to explore inconsistencies in testimony, and to apply 16 workable and consistent standards in the evaluation of testimonial evidence. He 17 is . . . uniquely qualified to decide whether [a] [witness]’s testimony has about it the ring 18 of truth.” Sarvia-Quintanilla v. U.S. I.N.S., 767 F.2d 1387, 1395 (9th Cir. 1985). 19 Additionally, “inconsistencies in the Plaintiff’s own past statements . . . [are] [e]xtremely 20 relevant,” when determining credibility. Begay, 2021 WL 4247919 , at *5. Therefore, the 21 IHO permissibly based his credibility findings on the inconsistencies between the 22 Plaintiffs’ testimony and the rest of the record. Accordingly, the Court finds that the IHO 23 did articulate specific and cogent reasons for his credibility findings of the Plaintiffs, which 24 were therefore, supported by substantial evidence. 25 The IHO found that Sammy and Betty Watson had limited credibility because they 26 were “indefinite about the frequency of seeing applicant[s] at Black Mesa . . . .” (Doc. 8 at 27 235; Doc. 8-2 at 162). Plaintiffs argue the IHO “failed to identify any part of their testimony 28 that he thought was ‘indefinite.’” (Doc. 22 at 10). The Court agrees. In Beam v. Off. of 1 Navajo & Hopi Indian Relocation, the IHO stated that the plaintiffs’ testimony was 2 “exaggerated and not credible.” 624 F. Supp. 3d 1069 , 1076 (D. Ariz. 2022). The court 3 found “the IHO’s one-sentence credibility determinations” did not offer sufficient support 4 for his findings because “the IHO failed to articulate reasons supporting his conclusion.” [5] Id. at 1077–78. Similarly, in the present case the IHO did not articulate why the Watsons’ 6 testimony about the frequency of seeing the Plaintiffs was “indefinite.” Thus, the IHO 7 failed to support his negative credibility determinations with specific, cogent reasons from 8 the record. If the IHO based his decision on the Watsons’ testimony, then he was required 9 to “make findings on the record and [] support those findings by pointing to substantial 10 evidence on the record.” Ceguerra, 933 F.2d at 738 . However, the IHO did not base his 11 final determination of relocation benefits on the Watsons’ testimony. Thus, his failure to 12 support his credibility findings with substantial evidence on the record does not change the 13 overall outcome. 14 D. Trustee Responsibility 15 Plaintiffs contend the ONHIR breached its duty to Plaintiffs “as trustee to members 16 of tribes facing relocation.” (Doc. 14 at 14). First, Plaintiffs argue the ONHIR “cannot pick 17 and choose among its beneficiaries.” (Id.). “ONHIR has a duty only to disburse benefits to 18 those authorized to receive them under the Settlement Act. Thus, whether ONHIR has a 19 duty to disburse benefits to Plaintiffs flows from the IHO’s decision, but ONHIR’s duty to 20 disburse benefits to eligible applicants does not dictate Plaintiffs’ eligibility.” Stago, 562 21 F. Supp. 3d at 106. Therefore, the ONHIR did not breach a duty in deciding that Plaintiffs 22 were not eligible for relocation benefits. 23 Second, Plaintiffs contend that the “ONHIR’s delays in discharging its obligations 24 have been unreasonable and egregious.” (Doc. 14 at 17). Plaintiffs claim that the “ONHIR 25 is solely responsible for the nineteen-year cessation of the application process . . . [and] 26 alone is responsible for the five years of extensions it unilaterally granted itself . . . .” (Id.). 27 The Court finds this argument unpersuasive because there is no evidence the delay was 28 unreasonable. “In the wake of Herbert, ONHIR developed new policies and procedures that caused a delay in commercial proceedings. [citation omitted] They also received 2|| ‘almost 1300’ additional applications around that same time.” Kirk v. Off. of Navajo & || Hopi Indian Relocation, 367 F. Supp. 3d 1028, 1038 (D. Ariz. 2019) (finding plaintiff’s own delay of six years “indicate time is not of the essence for her’); see also Bahe v. Off. 5|| of Navajo, No. CV-17-08016-PCT-DLR, 2017 WL 6618872 , at *6 (D. Ariz. 2017) (finding 6|| Plaintiff's claim of unnecessary delay did “not rise to the level of a breach of a fiduciary || duty”). Plaintiffs applied for relocation benefits in 2010 and the ONHIR denied them two 8 || years later in 2012. (See Doc. 16 at 17). Plaintiffs waited six years to seek review of the || ONHIR’s decision. (See id. at 18 ). Following Kirk, the Court finds the ONHIR has not || acted in an unreasonable or egregious manner. Thus, the ONHIR did not breach a duty to 11 || the Plaintiffs. 12} IV. CONCLUSION 13 For the reasons stated above, Defendant ONHIR’s decision to deny relocation benefits was not arbitrary, capricious, or an abuse of discretion. It was in accordance with 15 || law and supported by substantial evidence. Therefore, Defendant is entitled to summary 16 || judgment. 17 Accordingly, 18 IT IS ORDERED Plaintiff Sands, et al.’s Motion for Summary Judgment (Doc. 14) is DENIED. 20 IT IS FURTHER ORDERED Defendant ONHIR’s Cross-Motion for Summary Judgment (Doc. 16) is GRANTED. Defendant’s administrative decision denying Plaintiff's application for relocation benefits is, therefore, AFFIRMED. The Clerk of 23 || Court shall enter judgment accordingly. 24 Dated this 30th day of November, 2023. [25] 26 A [27] 28 James A. Teil Org Senior United States District Judge -12-