1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Tony Begay, No. CV-24-08085-PCT-JAT
10 Plaintiff, ORDER
11 v.
12 Office of Navajo and Hopi Indian Relocation, 13 14 Defendant. 15 Pending before the Court is Plaintiff Tony Begay’s Motion for Summary Judgment. 16 (Doc. 13). Defendant Office of Navajo and Hopi Indian Relocation (“ONHIR”) filed a 17 Response and Cross-Motion for Summary Judgment. (Doc. 15). Plaintiff filed a Reply on 18 his own motion, which also operates as his response to ONHIR’s Cross-Motion. (Doc. 19). 19 Finally, ONHIR filed a Reply on its Cross-Motion for Summary Judgment. (Doc. 20). The 20 parties did not request oral argument. The Court now rules. 21 I. BACKGROUND 22 Plaintiff seeks judicial review of an administrative decision by ONHIR denying him 23 relocation benefits under the Navajo-Hopi Settlement Act. Pub. L. No. 93-531, 88 Stat. 24 1712 (1974) (the “Settlement Act”). 25 A. The Settlement Act 26 The Settlement Act divided land that was jointly used by the Navajo Nation and 27 Hopi Tribe into two areas: (1) the Hopi Partitioned Lands (“HPL”); and (2) the Navajo 28 Partitioned Lands (“NPL”). Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). The 1 Settlement Act also created a federal agency—now known as ONHIR—to provide services 2 and benefits to relocate individuals who resided on land allocated to the other tribe. Bedoni 3 v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1121–22 (9th Cir. 1989). To 4 be eligible for relocation benefits under the Settlement Act, a Navajo applicant must prove 5 that: (1) he was a legal resident of the HPL on December 22, 1974, and (2) he continued to 6 be a resident of the HPL when he became a “head of household.” See 25 C.F.R. § 7 700.147(a), §§ 700.69(a)(2), (c); see also Begay v. Off. of Navajo and Hopi Indian 8 Relocation, No. CV-20-08102-PCT-SMB, 2021 WL 4247919, at *1 (D. Ariz. Sept. 17, 9 2021), aff’d, No. 21-16937, 2022 WL 17038707 (9th Cir. Nov. 17, 2022). The applicant 10 bears the burden of proving legal residence and head of household status. 25 C.F.R. § 11 700.147(b). 12 B. Facts and Procedural History 13 Plaintiff is an enrolled member of the Navajo Nation and applied for relocation 14 benefits on August 30, 2010. (Doc. 10-1 at 25–29). ONHIR informed Plaintiff that his 15 application had been denied on November 28, 2012. (Doc. 10-1 at 61). ONHIR concluded 16 that Plaintiff failed to meet the head of household requirement because: (1) he stated that 17 he relocated from the HPL to Tuba City in 1976, and (2) he did not become a head of 18 household until 1977. (Doc. 10-1 at 61). Plaintiff appealed ONHIR’s denial and the appeal 19 was argued before an Independent Hearing Officer (“IHO”) on September 8, 2017. (Doc. 20 10-1 at 65, 181). 21 At the hearing, ONHIR did not dispute that Plaintiff was a resident of the HPL on 22 December 22, 1974. (Doc. 10-1 at 100); 25 C.F.R. § 700.147(a) (first eligibility criteria to 23 obtain relocation benefits). ONHIR also stipulated that Plaintiff became a head of 24 household in 1977. (Doc. 10-1 at 100, 194). ONHIR’s counsel noted that the key issue on 25 appeal was whether Plaintiff was a resident of the HPL at the time he attained head of 26 household status. (Doc. 10-1 at 100). Plaintiff, Tully Begay (Plaintiff’s brother), Marlene 27 Begay (Plaintiff’s sister), and Andy Van (Plaintiff’s cousin) all testified on Plaintiff’s 28 behalf. (Doc. 10-1 at 101–41). ONHIR did not present any witnesses. (Doc. 10-1 at 142). 1 1. Plaintiff’s Testimony 2 Plaintiff was born in June of 1959. (Doc. 10-1 at 101). Although Plaintiff was born 3 in Tuba City, his family lived in Teasyahto on an HPL homesite. (Doc. 10-1 at 101–02). 4 In addition to the Teasyahto homesite, Plaintiff’s family “built a sort of small square house” 5 in Tuba City. (Doc. 10-1 at 103). They stayed there during the week for Plaintiff’s father’s 6 work, and for the kids’ schooling. (Doc. 10-1 at 104). The family returned to Teasyahto on 7 the weekends and also spent their summers there. (Doc. 10-1 at 104). During the summers, 8 Plaintiff helped take care of the family’s livestock and assisted his grandfather (a Medicine 9 Man) with ceremonies. (Doc. 10-1 at 104). 10 Plaintiff stopped attending high school in 1974 or 1975, and went to Roswell, New 11 Mexico in 1975 to obtain his GED. (Doc. 10-1 at 104, 106–107). After obtaining his GED 12 certificate in 1976, Plaintiff began working for Navajo Engineer Construction Authority 13 (“NECA”) in March or April of 1977. (Doc. 10-1 at 107; Doc. 13 at 8; Doc. 14 at 4). He 14 was based in Cameron, Arizona, and lived in a trailer provided by NECA. (Doc. 10-1 at 15 107–08). Plaintiff testified that on the weekends, he would “sometime[s] go back to . . . 16 Teasyahto.” (Doc. 10-1 at 108). Plaintiff explained that when he did return to the HPL, he 17 helped his grandfather perform ceremonies and took care of the family’s livestock. (Doc. 18 10-1 at 108–09). Plaintiff testified that the family sold off their livestock at some point, but 19 did not remember the exact date or year. (Doc. 10-1 at 109–10). The IHO asked Plaintiff if 20 the livestock was sold “before or after [he] went to Roswell [in 1975]” and he answered, 21 “I think, sort of in that area.” (Doc. 10-1 at 110). 22 After counsel finished questioning Plaintiff, the IHO asked Plaintiff what he meant 23 when he said he “sometimes” went back to Teasyahto from the time he started working for 24 NECA in 1977. (Doc. 10-1 at 117). Plaintiff answered that “sometimes” meant “when [he] 25 had nothing to do or go to town or just go back out there.” (Doc. 10-1 at 117). 26 2. Tully Begay’s Testimony 27 Tully Begay testified that he attended public school in Tuba City until 1978, before 28 transferring to a high school in Utah. (Doc. 10-1 at 119). While in school, Tully stayed 1 with his aunt during the week and returned home to Teasyahto on the weekends. (Doc. 10- 2 1 at 119). Tully testified that Plaintiff dropped out of school in 1976, began working for 3 NECA in 1977, and was working for NECA in 1978 when Tully left for Utah. (Doc. 10-1 4 at 119–20). Tully testified that, after Plaintiff dropped out of school, Tully would see him 5 in Teasyahto on the weekends because that was their parents’ primary residence. (Doc. 10- 6 1 at 120). Tully explained that in the mid-1970s, he and Plaintiff tended to livestock and 7 helped their grandfather “with the singalongs.” (Doc. 10-1 at 120). He further testified that 8 they “were always there [in Teasyahto] on the weekends” performing various chores. (Doc. 9 10-1 at 122). 10 3. Marlene Begay’s Testimony 11 Marlene Begay testified that she attended public school until 1978 before dropping 12 out. (Doc. 10-1 at 129). Plaintiff’s counsel asked Marlene if she “recall[ed] [Plaintiff] being 13 out at Teasyahto on the weekends” “up until [1978], in the 1970s.” (Doc. 10-1 at 129). 14 Marlene answered, “Yes[,] he was.” (Doc. 10-1 at 129). She also recalled Plaintiff being 15 at Teasyahto in the summers of 1974, 1975, and 1976. (Doc. 10-1 at 130). Marlene testified 16 that Plaintiff helped haul water, haul wood, and care for the livestock. (Doc. 10-1 at 130). 17 4. Andy Van’s Testimony 18 Andy Van is Plaintiff’s cousin by blood, but he referred to Plaintiff as his brother 19 and testified that they grew up together. (Doc. 10-1 at 135–36). Van testified that he 20 dropped out of school in 1976 and “stayed around and helped [his] grandfather” perform 21 religious ceremonies with Plaintiff and Tully Begay. (Doc. 10-1 at 137). Van stated that he 22 and Plaintiff herded sheep together “probably to the ‘80s” before Van “went out to work.” 23 (Doc. 10-1 at 137). Van stated that Plaintiff’s job with NECA was located in Tuba City 24 and that he traveled back and forth between Tuba City and Teasyahto because Plaintiff’s 25 family “didn’t have no place” in Tuba City. (Doc. 10-1 at 137–38). But Van later testified 26 that they “had a little shack [in Tuba City], yeah, just to stay in.” (Doc. 10-1 at 140). When 27 asked whether Plaintiff could have worked for NECA in Cameron, Arizona, instead of 28 Tuba City, Van answered “I never did follow his work so I don’t know.” (Doc. 10-1 at 1 140). 2 5. IHO’s Decision 3 On April 10, 2018, the IHO issued his decision denying Plaintiff’s appeal and 4 affirming ONHIR’s denial of relocation benefits. (Doc. 10-1 at 180–99). Regarding the 5 witnesses, the IHO determined that Plaintiff’s testimony “about his education, GED, and 6 employment [was] credible.” (Doc. 10-1 at 187). The IHO further found that Plaintiff’s 7 testimony about his “return visits to Teasyahto from the time he became employed in 8 March 1977 and thereafter as only being ‘sometimes’ (‘when I had nothing to do’) is 9 credible testimony about the frequency of his visitation there.” (Doc. 10-1 at 187). 10 Regarding the other witnesses, the IHO determined that: (1) Tully Begay’s testimony had 11 “limited credibility”; (2) Marlene Begay’s testimony had “no evidentiary value” because 12 she did not define Plaintiff’s return visits to Teasyahto “in terms of years or frequency”; 13 and (3) Andy Van’s testimony regarding Plaintiff’s whereabouts from 1976 to 1977 was 14 not credible. (Doc. 10-1 at 187–88). 15 The IHO found that Plaintiff’s “decreased frequency of visitation to Teasy[ahto] in 16 1976 [was] consistent with his own statements that the family moved to Tuba City in 1976 17 and [was] consistent with his own testimony that the family sold off most or all of their 18 livestock around that time, diminishing the need for visitation to the site.” (Doc. 10-1 at 19 197). He found Plaintiff’s own testimony that he only visited Teasyahto “sometimes” after 20 starting work with NECA in 1977 was “the best evidence in this appeal of the significance 21 of his contacts with [Teasyahto].” (Doc. 10-1 at 197). 22 The IHO ultimately concluded Plaintiff was not entitled to relocation benefits 23 because he was not a resident of the HPL when he obtained head of household status in 24 1977. (Doc. 10-1 at 196). ONHIR adopted the IHO’s decision as final on May 9, 2018. 25 (Doc. 10-1 at 201). Plaintiff now appeals ONHIR’s decision. 26 II. STANDARD OF REVIEW 27 The Administrative Procedure Act (“APA”) governs judicial review of agency 28 decisions under the Settlement Act. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1 1995). Unlike summary judgment in an original district court proceeding, the function of 2 the Court when reviewing an administrative proceeding “is to determine whether or not as 3 a matter of law the evidence in the administrative record permitted the agency to make the 4 decision it did.” Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). 5 Courts reviewing agency decisions may “set aside agency action, findings, and conclusions 6 found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 7 with law.” 5 U.S.C. § 706(2)(A); see also Hopi Tribe, 46 F.3d at 914. “The scope of review 8 under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its 9 judgment for that of the agency.” Hopi Tribe, 46 F.3d at 914 (quoting Motor Vehicle Mfrs. 10 Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Under 11 this standard, the Court “simply ensures that the agency has acted within a zone of 12 reasonableness and, in particular, has reasonably considered the relevant issues and 13 reasonably explained [its] decision.” Fed. Commc’ns Comm’n v. Prometheus Radio 14 Project, 592 U.S. 414, 423 (2021). An agency decision is arbitrary and capricious only if 15 the agency “entirely failed to consider an important aspect of the problem, offered an 16 explanation that runs counter to the evidence before the agency, or is so implausible that it 17 could not be ascribed to a difference in view or the product of agency expertise.” Motor 18 Vehicle Mfrs. Ass’n of the U.S., 463 U.S. at 43. 19 “Substantial evidence is more than a mere scintilla, but less than a preponderance,” 20 Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995), and requires only “such relevant 21 evidence as a reasonable mind might accept as adequate,” Info. Providers’ Coal. for Def. 22 of the First Amend. v. FCC, 928 F.2d 866, 870 (9th Cir. 1991) (quoting Consol. Edison Co. 23 v. NLRB, 305 U.S. 197, 229 (1938)). In reaching his conclusions, the IHO “is entitled to 24 draw inferences logically flowing from the evidence.” Gallant v. Heckler, 753 F.2d 1450, 25 1453 (9th Cir. 1984). “Where evidence is susceptible of more than one rational 26 interpretation,” the Court must uphold the agency’s decision. Id. 27 III. DISCUSSION 28 Plaintiff argues that the IHO’s decision must be overturned because: (1) the IHO 1 arbitrarily discredited the testimony of Tully Begay, Marlene Begay, and Andy Van; and 2 (2) the IHO’s determination that Plaintiff was not an HPL resident at the time he attained 3 head-of-household status was not based on substantial evidence. (Doc. 13 at 5, 13, 16). 4 Defendant argues that Plaintiff failed to meet his burden of establishing that he was a 5 resident of the HPL when he became a head of household in 1977. (Doc. 15 at 11). 6 A. Credibility Findings 7 Plaintiff argues that the IHO’s credibility findings “reveal an outcome determinative 8 decision” because the IHO only found Plaintiff credible without reservation, but arbitrarily 9 discredited the testimony of the three other witnesses that testified on his behalf. (Doc. 13 10 at 5). Plaintiff thus reasons that the IHO’s credibility findings were not based on substantial 11 evidence. (Doc. 13 at 5). 12 “Generally, ‘questions of credibility and resolution of conflicts in the testimony are 13 functions solely’ for the agency.” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) 14 (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). The Court affords an 15 IHO’s witness credibility determination great deference because of their unique ability to 16 observe the testimony at the hearing. Begay, 2021 WL 4247919, at *3 (citing Sarvia- 17 Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985)). The Ninth Circuit has recognized 18 that the IHO alone is “in a position to observe a[] [witness’s] tone and demeanor[] [and] 19 explore inconsistences in testimony” and is “uniquely qualified to decide whether a[] 20 [witness’s] testimony has about it the ring of truth.” See Sarvia-Quintanilla, 767 F.2d at 21 1395. 22 “When the decision of an [IHO] rests on a negative credibility evaluation, the [IHO] 23 must make findings on the record and must support those findings by pointing to substantial 24 evidence on the record.” Ceguerra v. Sec’y of Health & Hum. Servs., 933 F.2d 735, 738 25 (9th Cir. 1991). This Court will affirm the IHO’s credibility findings unless the IHO fails 26 to provide “specific and cogent reasons supported by substantial evidence.” Begay, 2021 27 WL 4247919, at *3 (citing De Valle v. INS, 901 F.2d 787, 792 (9th Cir. 1990)). 28 1 1. Plaintiff 2 Plaintiff testified that after he began working for NECA in 1977, he only visited 3 Teasyahto “sometimes” “when [he] had nothing to do.” (Doc. 10-1 at 117). The IHO found 4 Plaintiff’s testimony was credible regarding the frequency of his visitation there during that 5 period. (Doc. 10-1 at 187). 6 Plaintiff argues that the “quoted phrases do not reflect the totality of references” in 7 his testimony to his contacts with his HPL homesite. (Doc. 13 at 6–8). But none of the 8 Plaintiff’s other testimony quantifies his visitation to the HPL during the period of time 9 relevant to Plaintiff’s appeal—the period after he started work for NECA in 1977. 10 Plaintiff’s testimony about his upbringing and education are pre-1977 events do not help 11 determine his residency at the time he became a head of household. And when the IHO 12 gave Plaintiff the opportunity to clarify the extent of his contacts with the HPL in 1977 13 specifically, he failed to do so. Instead of quantifying his visits back to the HPL, or 14 discussing what Plaintiff did there, he merely testified that he returned to the HPL 15 sometimes, when he “had nothing to do.” (Doc. 10-1 at 117). The IHO permissibly credited 16 the limited testimony Plaintiff provided regarding his HPL contacts in 1977. Because IHOs 17 are afforded considerable deference due to their unique ability to observe the witnesses in 18 person and ascertain whether the testimony “has about it the ring of truth,” the Court finds 19 no error in the IHO’s credibility determination. Sarvia-Quintanilla, 767 F.2d at 1395. 20 The IHO made negative credibility determinations with respect to Tully and 21 Marlene Begay, and Andy Van. The Court addresses each in turn. 22 2. Tully Begay 23 Regarding Tully Begay, the IHO made the following findings: 24 Applicant’s younger brother testified about his own education and his own 25 return visits to Teasy[ahto]. Tully Begay’s testimony was confusing about the return visitation to Teasy[ahto] and has limited credibility. In particular, 26 to the extent it contradicts applicant’s testimony, applicant’s own testimony is more credible than Tully Begay’s as to applicant’s whereabouts and 27 visitation to Teasy[ahto] more than forty years ago.
28 (Doc. 10-1 at 187). Plaintiff argues that the IHO does not explain why Tully’s credibility 1 was “limited,” or how Tully’s testimony contradicted Plaintiff’s. (Doc. 13 at 9). 2 Although the IHO did not fully elaborate on his credibility determinations in the 3 “Credibility Findings” section of his decision, the IHO explained why he discredited 4 Tully’s testimony in the body of the decision. Begay, 2021 WL 4247919, at *4 (“The IHO 5 may set forward [reasons for rejecting testimony as uncredible] either in the formal 6 credibility determination or in the body of the decision.”). 7 The IHO noted that Plaintiff and Tully offered conflicting testimony about whether 8 their father was present at Teasyahto on the weekends in 1976. (Doc 10-1 at 198). Plaintiff 9 testified that he drove the family to the homesite to get his mother away from his father, 10 who had a drinking problem at the time. (Doc. 10-1 at 115–16). Tully testified that his 11 father would take the family to Teasyahto and that their mother was with their father “the 12 majority of the time.” (Doc. 10-1 at 124–26). Tully also testified that after Plaintiff started 13 working for NECA, he saw Plaintiff at Teasyahto because the two were “always there on 14 the weekends” performing various chores. (Doc. 10-1 at 121–22). This testimony conflicts 15 with Plaintiff’s own account of his visitation to Teasyahto during the same time. Plaintiff 16 indicated he only returned to the homesite “sometimes” “when [he] had nothing to do.” 17 (Doc. 10-1 at 117). 18 The fact that Tully’s testimony contradicted Plaintiff’s is a specific and cogent 19 reason to limit his credibility, and the Court finds no error. Begay, 2021 WL 4247919, at 20 *4 (an adverse credibility determination may rest upon the “existence of contrary evidence 21 in the record”). 22 3. Marlene Begay 23 The IHO found that Marlene Begay’s testimony “ha[d] no evidentiary value in 24 determining [Plaintiff’s] appeal” because she did not quantify Plaintiff’s return visits to 25 Teasyahto in terms of years or frequency. (Doc. 10-1 at 188). Plaintiff argues that 26 Marlene’s testimony did have evidentiary value because she “testified to [Plaintiff] being 27 present on weekends in the 1970s.” (Doc. 13 at 10). But Marlene’s testimony generally 28 affirming that she saw Plaintiff at Teasyahto on the weekends “in the 1970s,” (Doc. 10-1 1 at 129), does not shed light on the frequency of Plaintiff’s visits to Teasyahto in 1977. 2 Thus, the Court agrees with the IHO that this vague testimony is unhelpful in determining 3 the central question of Plaintiff’s appeal: whether he was an HPL resident in 1977 when he 4 became a head of household. See Yazzie v. Off. of Navajo and Hopi Indian Relocation, No. 5 CV-23-08510-PCT-JAT, 2024 WL 3345192, at *5 (D. Ariz. July 8, 2024) (witnesses’ 6 failure to quantify the plaintiff’s visitation to the HPL during the operative period was a 7 specific and cogent reason to “lend limited credibility to [their] testimony”). 8 4. Andy Van 9 Finally, the IHO made the following findings regarding Andy Van:
10 Andy [V]an’s testimony contradicted applicant’s and applicant’s siblings’ testimony insofar as Andy [V]an claimed applicant’s family had no place of 11 their own to live in Tuba City . . . and further contradicted applicant’s testimony as to when the family sold its livestock that had been at 12 Teasy[ahto], claiming it was later than applicant stated. Andy [V]an’s testimony as to the frequency or quality of the visits he claims applicant made 13 to Teasy[ahto] is very general and further contradicted applicant’s testimony by assert[ing] applicant’s work for NECA “was in Tuba.” Andy [V]an’s 14 recollections of his cousin’s whereabouts from 1976 to 1977 (over forty years ago) is not credible. 15 16 (Doc. 10-1 at 188). Plaintiff claims that he and Van merely had a “difference in recall” as 17 to when Plaintiff’s family sold their livestock, and that Van’s “error that [Plaintiff] was 18 based in Tuba rather than Cameron is not such an error to render [his] testimony not 19 credible.” (Doc. 13 at 12). 20 The Court finds that the IHO articulated specific and cogent reasons for discrediting 21 Van’s testimony, which are supported by the record. Van initially testified that Plaintiff 22 and his family did not have a Tuba City residence, but when questioned on redirect, he 23 admitted the family stayed “in a little shack there.” (Doc. 10-1 at 138, 140). Van claimed 24 that Plaintiff’s family still owned livestock in 1976 and that the two herded sheep together 25 until the 80s, but Plaintiff indicated that the livestock was sold around 1975. (Doc. 10-1 at 26 137, 110). Van did not specifically testify to Plaintiff’s contacts with the HPL in 1977, and 27 he incorrectly stated that Plaintiff worked for NECA in Tuba City rather than in Cameron. 28 (Doc. 10-1 at 137). 1 Because the IHO reasonably discredited Van due to his inconsistent and inaccurate 2 testimony, the Court will not disturb this credibility finding. Manygoats v. Off. of Navajo, 3 No. CV-22-08028-PCT-DLR, 2024 WL 1209947, at *3 (D. Ariz. Mar. 21, 2024) (“In 4 assessing credibility, an IHO may ‘adequately find a lack of credibility based on internal 5 inconsistencies in a witness’s testimony’ or ‘the totality of the record.’”). 6 B. Plaintiff’s Residence in 1977 7 As noted, it is undisputed that Plaintiff was an HPL resident on December 22, 1974, 8 and that Plaintiff became a head of household in 1977. Plaintiff’s appeal rests on his claim 9 that that he was still a resident of the HPL in 1977 by virtue of his visits to Teasyahto 10 during that year. The IHO found he was not an HPL resident at that time, and thus was not 11 entitled to relocation benefits. The IHO reasoned that:
12 The lack of specificity, the lack of frequency, the absence of any testimony about what [Plaintiff] did while at Teasy[ahto] after June 1976 when he 13 obtained his GED . . . and the indefinite description of “sometimes” as the catch-all for his contact with Teasy[ahto] after he began working [at NECA 14 in 1977] is insufficient to determine that [Plaintiff] has met his burden of proof showing legal residence on HPL after he can be considered to have 15 become a head of household. 16 (Doc. 10-1 at 197). The IHO’s determination that the Plaintiff was not a resident of the 17 HPL when he obtained head of household status was based on substantial evidence. 18 The term “residency” for purposes of the Settlement Act is defined by its legal 19 meaning, “which requires an examination of a person’s intent to reside combined with 20 manifestations of that intent.” 49 Fed. Reg. 22,277–78 (eliminating “substantial and 21 recurring contacts” standard and adopting “intent and manifestations of intent” standard 22 for assessing residency); see also Charles v. Office of Navajo, 774 F. App’x 389, 390 (9th 23 Cir. 2019) (unpublished). “[I]n assessing an applicant[’s] manifestations of intent to 24 maintain legal residence in the partitioned lands,” ONHIR looks to multiple factors, 25 including: ownership of livestock, ownership of improvements, grazing permits, livestock 26 sales receipts, homesite leases, public health records, school records, military records, 27 employment records, mailing address records, banking records, driver’s license records, 28 tribal and county voting records, home ownership or rental off the disputed area, Social 1 Security Administration records, Joint Use Area Roster, and other relevant data. 49 Fed. 2 Reg. at 22,278. 3 Plaintiff argues that both testimony from the hearing and documentary evidence in 4 the record establish he was an HPL resident in 1977. 5 1. Hearing Testimony 6 Plaintiff argues the hearing testimony “shows he maintained his frequent and 7 substantial contacts with Teasyahto when he began working for NECA and through the 8 time he became head-of-household.” (Doc. 13 at 15). He criticizes the IHO’s decision to 9 rely on his “use of a few casual, non-specific phrases to support the determination that his 10 contacts with Teasy[ahto] were infrequent and non-substantive.” (Doc. 13 at 15). Plaintiff 11 contends that his these “casual, non-specific” phrases do not represent the entirety of his 12 testimony and do not justify dismissing the other witness testimony that confirm Plaintiff’s 13 “substantive contacts” with Teasyahto. (Doc. 13 at 15). ONHIR counters that Plaintiff’s 14 three witnesses did not specifically quantify his visits to the HPL during 1977, and that the 15 IHO’s decision to credit Plaintiff’s “non-specific” phrases was based on the totality of the 16 record, including: (1) Plaintiff’s relocation application, (2) other hearing testimony, and (3) 17 Plaintiff’s full-time employment with NECA in March 1977. (Doc. 15 at 15). 18 Plaintiff essentially asks this Court to reweigh the evidence. But, as previously 19 discussed, the IHO properly credited Plaintiff’s testimony and discredited the other 20 witnesses’ testimony. Because the evidence is susceptible to more than one rational 21 interpretation, the Court finds no basis to overturn the IHO’s decision based on the hearing 22 testimony. 23 2. Documentary Evidence 24 Plaintiff next argues that various documents in the record prove he was an HPL 25 resident in 1977. Plaintiff’s reply points the Court to five documents: (1) Jessie Begay, 26 Sr.’s (Plaintiff’s father) Head of Household Questionnaire, (2) a certification form signed 27 by Mary Begay (Plaintiff’s mother), (3) a Certification of Residency form signed by Mary 28 Begay’s sister, cousin, and grandpa, (4) a memorandum discussing the construction of 1 Mary Begay’s relocation home, and (5) Jessie Begay Sr.’s Criteria Verification form. (Doc. 2 19 at 8–9; Doc. 10-1 at 3–5; Doc. 10-1 at 7–8, Doc. 10-1 at 12, Doc. 10-1 at 13–20). These 3 documents relate to Plaintiffs’ parents’ HPL residency status and various forms connected 4 to their applications for relocation benefits. Plaintiff argues that these documents establish 5 that the Begay family were HPL residents in 1977. (Doc. 19 at 8). 6 Plaintiff contends that he had derivative residency through his mother during the 7 operative period because she was an HPL resident when Plaintiff turned 18 on June 28, 8 1977. (Doc. 13 at 17). Plaintiff’s derivative residency argument fails because he became a 9 head of household before he turned 18 on June 28, 1977, making his “pre-emancipation 10 residency . . . irrelevant.” See Bedoni, 878 F.2d at 1123 (once a minor becomes a head of 11 household, he is considered emancipated and thus eligible to apply for relocation benefits 12 “in his own right”). 13 ONHIR policy considers earnings of $1,300 or more per year as prima facie 14 evidence that an applicant “could be self-supporting for relocation purposes.” (Doc. 10-1 15 at 194); see Tohannie v. Off. of Navajo and Hopi Indian Relocation, No. CV-21-08272- 16 PCT-ROS, 2022 WL 17987268, at *3 (D. Ariz. Dec. 29, 2022) (ONHIR and the federal 17 courts have viewed “incomes more than $1,300 . . . as establishing the individual was [a] 18 self-supporting” head of household). Plaintiff began working at NECA in March or April 19 of 1977 and earned $4,535 that year. (Doc. 10-1 at 36). At this time, Plaintiff lived 20 separately from his parents in a trailer NECA provided him. (Doc. 10-1 at 107–08). Based 21 on Plaintiff’s start date, it is clear that he earned over $1,300 before he turned 18, thus 22 making him a head of household.1 Yazzie v. Off. of Navajo and Hopi Indian Relocation, 23 No. 22-16124, 2024 WL 1904560, at *3 (9th Cir. May 1, 2024) (applicant “established a 24 prima facie case that he was a head of household” by earning more than $1,300 within a 25 1 Plaintiff all but conceded this fact in both his summary judgment motion and reply. (Doc. 26 13 at 17) (“Mr. Begay turned 18 on June 28, 1977, meaning he earned the requisite amount to establish head-of-household status very close to the date he reached the age of 27 majority.”); (Doc. 19 at 11–12) (“Plaintiff estimates that based upon his documented 1977 earnings and the commencement of his employment sometime in March, 1977, that he 28 would have earned the requisite amount to achieve head-of-household status close to his 18th birthday.”). 1 year). 2 Plaintiff attempts to rely on his parents’ residence in 1977 even though he became 3 a head of household that year, independent from his parents. But Plaintiff cannot sidestep 4 his head of household status by claiming derivative residency. The IHO’s decision states 5 that “[i]t is ONHIR’s practice and history to consider individuals who become heads of 6 household prior to reaching the age of majority to be emancipated minors on the date they 7 become heads of household, regardless of whether formal court process emancipated 8 them.” 2 (Doc. 10-1 at 192). Accordingly, “ONHIR does not recognize heads of household 9 under the age of eighteen as derivatively possessing their parents’ residency as they are 10 considered to have established their own legal residency upon their emancipation.” (Doc. 11 10-1 at 192); see also Bedoni, 878 F.2d at 1123 (finding plaintiff’s derivative residency 12 argument meritless because his “pre-emancipation residency [was] irrelevant” and 13 affirming the denial of benefits because plaintiff, “though a head of household, was not a 14 resident after his emancipation”). 15 Accordingly, the five documents Plaintiff cites pertaining to his parents’ residency 16 status are irrelevant to determining his residency status as an emancipated head of 17 household. 18 3. Conclusion 19 The record evidence reasonably supports the IHO’s determination that Plaintiff’s 20 contacts with HPL were insufficient to prove he was an HPL resident during the operative 21 2 Plaintiff’s reply argues that a recent Ninth Circuit “ONHIR [relocation] benefits 22 decision arrives at a contrary conclusion.” (Doc. 19 at 11) (citing Yazzie, 2024 WL 1904560, at *2). Plaintiff quotes the following language from Yazzie: “[T]he IHO 23 acknowledged that, even though Yazzie studied away from home while in 10th and 11th grades, Yazzie’s ‘derivative legal residence’ at White Cone would continue to exist at least 24 ‘until he became 18 years old.’ Moreover, once a child turns 18, that child’s ‘legal residence or domicile’ continues “until a new one is acquired.” (Doc. 19 at 11) (quoting Yazzie, 2024 25 WL 1904560, at *2) (internal quotations omitted). Plaintiff offers no explanation or analysis as to why Yazzie’s holding is inconsistent 26 with ONHIR’s longstanding practice to treat “individuals who become heads of household prior to reaching the age of majority . . . [as] emancipated minors on the date they become 27 heads of household.” (Doc. 10-1 at 192). Indeed, Yazzie turned 18 on May 8, 1978, and obtained head of household status through his earnings from “the summer and fall of 1978.” 28 Because the prima facie evidence established Yazzie as a head of household after his 18th birthday, the decision is factually distinguishable from the present case. 1 period. 2 C. “Undated Memo” 3 Plaintiff directs the Court to an “undated memo” in the administrative record which 4 states: “Applicant HPL residency OK up to 06/28/1977 and I believe he was still HPL 5 resident when he became H/H [head of household] in 1977.” (Doc. 13 at 16, quoting Doc. 6 10-1 at 204). The memo also states that Plaintiff’s father “left [the] HPL before 1980” and 7 received relocation benefits in 1992, and that Plaintiff’s mother “left [the] HPL [in] 1982” 8 and received relocation benefits in 1984. (Doc. 10-1 at 204). Plaintiff argues the undated 9 memo proves his derivative residency because his mother’s HPL residency “continued well 10 past” his 18th birthday on June 28, 1977. (Doc. 13 at 16–17; see also Doc. 19 at 10–12). 11 For the reasons discussed above, Plaintiff’s derivative residency argument fails. 12 Accordingly, the Court will disregard Plaintiff’s reliance on the undated memo insofar as 13 it relates to his claim of derivative residency. 14 The question at the heart of Plaintiff’s appeal is whether he, by virtue of his own 15 connections to the HPL, was a resident when he obtained head of household status in 1977. 16 The only sentence in the undated memo related to this inquiry states: “Applicant HPL 17 residency is OK up to 06/28/1977 and I believe he was still HPL resident when he became 18 H/H in 1977.” (Doc. 10-1 at 204). 19 ONHIR argues Plaintiff waived his ability to reference the undated memo because 20 he did not address it at the agency level. (Doc. 15 at 13). ONHIR further argues that the 21 document’s probative value is “questionable” because it is undated and does not list an 22 author. (Doc. 15 at 17) (citing Bahe v. Off. of Navajo, No. CV-17-08016-PCT-DLR, 2017 23 WL 6618872, at *2 (D. Ariz. Dec. 28, 2017) (“Where . . . a petitioner in an administrative 24 proceeding fails to raise an issue before the administrative tribunal, the issue cannot be 25 raised on appeal from that tribunal.”)). In response, Plaintiff argues there is a “distinction 26 between presenting a legal issue for the first time on appeal” and presenting an item of 27 evidence in support of an issue raised at the agency level. (Doc. 19 at 9–10). Because the 28 memo supports an issue addressed in the underlying proceedings—i.e., Plaintiff’s 1 residency status when he became a head of household—Plaintiff contends it should be 2 considered. (Doc. 19 at 9-10). ONHIR replied that this argument is a “distinction without 3 a difference,” asserting that Plaintiff, by failing to “include the undated memo as an exhibit 4 to his post-hearing brief, or introduce it at the hearing,” “did not give the IHO an 5 opportunity to address it” and has thus waived the ability to rely on the document in this 6 appeal. (Doc. 20 at 7). 7 Plaintiff does not cite any relevant caselaw to support his position that offering a 8 potentially “new” item of evidence on appeal is functionally different from arguing a new 9 legal issue for the first time on appeal. The Ninth Circuit has noted that “as a Court 10 reviewing a final order of an administrative agency[,] we are not permitted to consider 11 evidence that was not before” the agency. Gomez-Vigil v. INS, 990 F.2d 1111, 1113 (9th 12 Cir. 1993). Indeed, as a general rule, courts reviewing an agency decision “typically focus[] 13 on the administrative record in existence at the time of the decision,” and exclude from 14 consideration “any part of the record that is made initially in the reviewing court.” Lands 15 Council v. Powell, 395 F.3d 1019, 1029 (9th Cir. 2005) (quoting Southwest Ctr. for 16 Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996)). However, 17 reviewing courts may admit extra-record evidence if: “(1) if admission is necessary to 18 determine ‘whether the agency has considered all relevant factors and has explained its 19 decision,’ (2) if ‘the agency has relied on documents not in the record,’ (3) ‘when 20 supplementing the record is necessary to explain technical terms or complex subject 21 matter,’ or (4) ‘when plaintiffs make a showing of agency bad faith.’” Id. 22 The undated memo at issue here is problematic because it is unclear whether it was 23 part of the administrative record “in existence at the time of the [IHO’s] decision,” or is 24 more aptly categorized as extra-record evidence presented for the first time to this 25 reviewing Court.3 Id. These questions are central to determining whether the Court can
26 3 The Court acknowledges that the undated memo is not extra-record evidence in the traditional sense—indeed, it is undisputed that administrative record technically 27 encompasses this document. (Doc. 10-1 at 204). However, there is a question as to whether the memo functions as extra-record evidence for purposes of this appeal, given the 28 confusion as to whether (a) the document was part of the administrative record at the time the IHO authored his decision, or (b) it is presented for the first time to this Court. 1 consider the memo in its review of the IHO’s decision. Plaintiff concedes “it is not certain 2 if the ONHIR ‘undated memo’ in question [was] one of the documents introduced at [the] 3 hearing.”4 (Doc. 19 at 10). Beyond this concession, the parties make no attempt to clarify 4 the document’s origin, the foundation (if any) supporting the document, or the timeline of 5 its submission to the administrative record. Based on the available record, the Court makes 6 the following findings and reaches the following conclusions regarding the undated memo. 7 The administrative record is organized chronologically and ranges from documents 8 dated as early as December 7, 1977, to as late as May 9, 2018. (Doc. 10-1 at 1-2). The 9 record logically follows the timeline of Plaintiff’s application for relocation benefits and 10 his subsequent appeal—ONHIR’s letter denying Plaintiff’s request for relocation benefits 11 is followed by Plaintiff’s appeal letter, the hearing transcript, the parties’ post-hearing 12 briefs, the IHO’s decision, and so on. (Doc. 10-1 at 1-2). The only document in the entirety 13 of the administrative record that is undated and has no logical place in the sequence of 14 documents is the memo upon which Plaintiff relies. It is listed on the very last page of the 15 record, after the IHO’s decision and ONHIR’s final agency decision. (Doc. 10-1 at 204). 16 It is merely titled: “Undated . . . Tony C. Begay analysis,” (Doc. 10-1 at 204), and is devoid 17 of any detail regarding the document’s author, the date it was written, or the date it was 18 added to the record. And the singular sentence in the undated memo relevant to Plaintiff’s 19 appeal contains no analysis as to why the unknown author believed Plaintiff was an HPL 20 resident when he obtained head of household status. 21 The Court’s review of the record reveals that Plaintiff did not reference the undated 22 memo during the hearing, or in his post-hearing brief. And while the IHO’s decision 23 referenced other documents in the record (including Plaintiff’s application for benefits, his 24 Social Security statements, documents from his parents’ relocation files, and the hearing 25 transcript), it did not cite to the undated memo. (Doc. 10-1 at 181–99). It appears that both 26 the parties and the IHO were unaware of the document’s existence during the underlying 27 proceedings. Indeed, there is no evidence that the document was part of the record at the
28 4 The Court’s independent review of the hearing transcript reveals that the undated memo was not admitted, discussed, or otherwise referenced at the hearing. 1 time the IHO rendered his decision. If that is the case, and the memo was added to the 2 record after the decision had been issued, then this Court cannot independently review it 3 for the first time on appeal. Lands Council, 395 F.3d at 1029 (limiting a reviewing court’s 4 focus to the administrative record existing at the time of the agency’s decision). 5 However, there is still the possibility that the memo was part of the administrative 6 record at the time the IHO authored his decision. In this instance, two options exist: either 7 (1) the IHO reviewed the document and still denied Plaintiff benefits (thus rejecting the 8 document’s contents), or (2) the IHO, despite having the memo available in the 9 administrative record for his consideration, did not review it. The Court addresses each 10 possibility in turn. 11 1. Option 1: IHO Reviewed and Rejected the Undated Memo 12 If the IHO reviewed and rejected the undated memo, this Court cannot say that doing 13 so was arbitrary and capricious or an abuse of discretion. The memo’s author is unknown 14 and the document is undated. Beyond these critical defects, the memo provides no 15 foundation or support for the mystery author’s conclusory opinion that Plaintiff remained 16 an HPL resident when he obtained head of household status. And the memo does not 17 contain any information about Plaintiff’s intent to reside on the HPL or constitute a 18 “manifestation of [his] intent” to reside there. 49 Fed. Reg. 22,277–78 (listing factors courts 19 consider in assessing an applicant’s manifestations of intent to maintain legal residence on 20 partitioned lands). The probative value of the undated memo is shaky at best—entirely 21 lacking at worst—and does not provide a sufficient basis to reverse the IHO’s decision or 22 to award Plaintiff relocation benefits, as he requests. 23 2. Option 2: IHO Failed to Review the Undated Memo 24 It is possible that the memo was part of the administrative record when the IHO 25 reviewed it, and that he failed to consider it. Although Plaintiff has not raised this argument, 26 the Court has considered whether, given this possibility, remand for further proceedings 27 and investigation into the memo’s contents is appropriate. 28 Remand to the agency for additional investigation or explanation is only appropriate 1 “if the record before the agency does not support the agency action.” Stago v. Off. of Navajo 2 and Hopi Indian Relocation, 562 F. Supp. 3d 95, 106 (D. Ariz. 2021) (quoting Begay v. 3 Off. of Navajo & Hopi Indian Relocation, No. CV-16-08221-PCT-DGC, 2017 WL 4 4297348, at *4 (D. Ariz. Sept. 28, 2017)). 5 The Court finds that the record supports ONHIR’s decision such that remand is 6 unnecessary. The hearing testimony and documentation in the record constitute substantial 7 evidence that Plaintiff was not an HPL resident when he became a head of household. 8 Further, it is unclear what would be accomplished from remanding this case for further 9 investigation into the undated memo when, on its face, it is deficient. Whether reviewed 10 by this Court or by the IHO, the same glaring issues remain: (1) the memo is undated, (2) 11 it does not list an author or any other identifying information by which to determine the 12 author, and (3) the singular opinion contained in the memo is wholly unsupported. Neither 13 party appears to have answers to these fundamental questions. Given these evidentiary 14 deficiencies, it is unlikely that the memo could be assigned significant—if any— 15 evidentiary weight, let alone enough to alter the outcome of Plaintiff’s relocation benefits 16 determination. Accordingly, remanding this matter for the singular purpose of evaluating 17 the undated memo is futile. See de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 n.1 18 (9th Cir. 2007) (remand to the agency is not required when doing so would be futile). 19 3. Conclusion 20 For the reasons stated, the Court finds the undated memo provides no basis to disturb 21 the IHO’s decision or remand for additional proceedings. 22 IV. CONCLUSION 23 The IHO reasonably found that Plaintiff’s contacts with HPL were insufficient to 24 establish that he was a resident at the time he obtained head of household status through 25 his employment with NECA. Under the deferential standard of review required here, the 26 Court concludes the IHO’s decision was supported by substantial evidence. Because the 27 IHO’s denial of relocation benefits was not arbitrary, capricious, or an abuse of discretion, 28 ONHIR is entitled to summary judgment. 1 Accordingly, 2 IT IS ORDERED Plaintiff’s Motion for Summary Judgment (Doc. 13) is denied. 3 IT IS FURTHER ORDERED Defendant’s Cross-Motion for Summary Judgment 4|| (Doc. 15) is granted. Defendant’s administrative decision denying Plaintiff’s application || for relocation benefits is, therefore, affirmed. The Clerk of the Court shall enter judgment 6|| in favor of the Defendant and against Plaintiff. 7 Dated this 23rd day of September, 2025. 8
10 ll _ James A. Teil Org Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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