Calvin v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: October 25, 2021
• Docket: 3:20-cv-08117
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Rose Calvin, et al., No. CV-20-08117-PCT-DWL

10 Plaintiffs, ORDER

11 v.

12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Rose Calvin, Susie Yellowman, James John, and David Johns (“Plaintiffs”) seek 16 judicial review of an administrative decision by the Office of Navajo and Hopi Indian 17 Relocation (“ONHIR”) denying their applications for relocation benefits under the Navajo- 18 Hopi Land Settlement Act (the “Settlement Act”). At issue are the parties’ cross-motions 19 for summary judgment. (Docs. 14, 15.) The motions are fully briefed and the parties did 20 not request oral argument. For the following reasons, ONHIR’s motion is granted and 21 Plaintiffs’ motion is denied. 22 BACKGROUND 23 I. The Settlement Act 24 In 1974, Congress enacted the Settlement Act, which authorized the partition of the 25 Joint Use Area between the Hopi and the Navajo tribes, resulting in the Hopi Partition Land 26 (“HPL”) and the Navajo Partition Land (“NPL”). 25 U.S.C. § 640d et seq.1 The Settlement 27 1 Effective September 1, 2016, § 640d of Title 25 was omitted from the United States 28 Code as being of “special and not general application.” This omission is editorial only and has no effect on the validity of the law. 1 Act “required members of each tribe to move from lands partitioned to the other tribe by 2 1986 and created a commission,” now known as OHNIR, “to pay for the major costs of 3 such relocations.” Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). ONHIR’s 4 decisions are, in turn, subject to review under the Administrative Procedures Act (“APA”). 5 Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir. 1989). 6 ONHIR has promulgated regulations that establish the eligibility requirements for 7 relocation benefits. Under those regulations, an applicant must make two showings: (1) 8 the applicant was, on December 22, 1974, residing on land partitioned to the other tribe; 9 and (2) the applicant achieved “head of household” status on or by a certain date. 25 C.F.R. 10 §§ 700.147, 700.69. The burden is on the applicant to make these showings. Id. 11 § 700.147(b).2 12 II. Factual And Procedural History 13 On August 30, 2010, Plaintiffs—siblings and enrolled members of the Navajo 14 Nation—applied to ONHIR for relocation benefits under the Settlement Act. (Doc. 10 at 15 10-14, 55-59, 116-120, 150-54.) 16 On July 26, 2012, Plaintiffs’ applications were denied by ONHIR, which found in 17 each case that there was “insufficient evidence on which to find that you [the applicant] 18 were residing on the HPL as of December 22, 1974.” (Doc. 10 at 25-26, 79-80, 131-32, 19 173-74.) 20 In September 2012, Plaintiffs filed notices of appeal. (Id. at 29, 83, 135, 178.) 21 On December 20, 2013, Plaintiffs’ cases were consolidated with those of three other 22 relatives and a hearing was held before an Independent Hearing Officer (“IHO”). (Doc. 23 14-1 ¶ 63.) 24 On March 21, 2014, the IHO issued a decision upholding OHNIR’s denial of 25 relocation benefits. (Doc. 10-1 at 342-58.) The IHO’s reasoning is discussed in more 26 detail below, in relation to the specific challenges raised by Plaintiffs in this proceeding. 27 2 The head-of-household requirement is not at issue here, as ONHIR’s counsel 28 stipulated at the hearing that all Plaintiffs had achieved that status as of December 22, 1974. (Doc. 14 at 5.) 1 On May 21, 2014, ONHIR issued a notice of “Final Agency Action” in Plaintiffs’ 2 cases, affirming the IHO’s denial of relocation benefits. (Doc. 10-1 at 362.) 3 On May 20, 2020, Plaintiffs filed this action, which seeks review of OHNIR’s denial 4 of benefits. (Doc. 1.) 5 On March 30, 2021, Plaintiffs moved for summary judgment. (Doc. 14.) 6 On April 26, 2021, ONHIR filed a combined response and cross-motion for 7 summary judgment. (Doc. 15.) 8 On May 26, 2021, Plaintiffs filed a combined response and reply. (Doc. 17.) 9 On June 10, 2021, ONHIR filed a reply. (Doc. 18.) 10 DISCUSSION 11 Plaintiffs seek reversal of the IHO’s decision on three grounds: (1) the IHO failed 12 to provide specific and cogent reasons for his adverse credibility determinations pertaining 13 to Plaintiffs; (2) the IHO was precluded from making factual findings that contradicted his 14 and ONHIR’s factual findings in previous cases; and (3) the IHO’s ultimate decision was 15 arbitrary and capricious, and not based on substantial evidence, because he unreasonably 16 dismissed testimony presented at the administrative hearing and arrived at speculative 17 conclusions. Each ground is addressed below. 18 I. Legal Standard 19 Typically, “[t]he court shall grant summary judgment if [a] movant shows that there 20 is no genuine dispute as to any material fact and the movant is entitled to judgment as a 21 matter of law.” Fed. R. Civ. P. 56(a). However, when reviewing an agency decision under 22 the APA,3 “the function of the district court is to determine whether or not as a matter of 23 law the evidence in the administrative record permitted the agency to make the decision it 24 did.” Occidental Eng’g Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir. 1985). Thus, “summary 25 judgment is an appropriate mechanism for deciding the legal question of whether the 26 agency could reasonably have found the facts as it did.” Id. at 770. “[T]he focal point for 27

28 3 “Unless Congress specifies otherwise, we review agency action under the [APA].” Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995). 1 judicial review should be the administrative record already in existence, not some new 2 record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). 3 Although judicial review under the APA must be “searching and careful,” a reviewing 4 court’s role remains “narrow.” Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 5 (9th Cir. 1993). The reviewing court cannot substitute its judgment for the agency’s, 6 especially where the “challenged decision implicates substantial agency expertise.” 7 Ninilchik Traditional Council v. United States, 227 F.3d 1186, 1194 (9th Cir. 2000). 8 II. Credibility Determinations 9 An agency adjudicator’s “credibility findings are granted substantial deference by 10 reviewing courts.” De Valle v. Immigration and Naturalization Serv., 901 F.2d 787, 792 11 (9th Cir. 1990) (citations omitted). This is because the “IHO alone is in a position to 12 observe a witness’s tone and demeanor, to explore inconsistencies in testimony, and to 13 apply workable and consistent standards in the evaluation of testimonial evidence. He is 14 uniquely qualified to decide whether a witness’s testimony has about it the ring of truth.” 15 Begay v. OHNIR, 305 F. Supp. 3d 1040, 1049 (D. Ariz. 2018) (cleaned up) (citing Sarvia– 16 Quintanilla v. U.S. I.N.S., 767 F.2d 1387, 1395 (9th Cir. 1985)). Thus, so long as an IHO 17 “offer[s] a specific, cogent reason” for an adverse credibility determination, see De Valle, 18 901 F.2d at 792 (citation and internal quotation marks omitted), and that reason is 19 supported by “substantial evidence,” Ceguerra v. Sec. of Health & Hum. Servs., 933 F.2d 20 735, 738 (9th Cir. 1991), a reviewing court must affirm. 21 Here, the IHO’s decision includes the following passage: “To the extent that any of 22 the applicants testified that they resided in, used or visited . . . the claimed area that was 23 partitioned for the use of the Hopi Indians, on or after December 22, 1974, that testimony 24 is not credible.” (Doc. 10-1 at 346.) Plaintiffs characterize this as “a one sentence adverse 25 credibility determination as to the testimony of all four Plaintiffs and the three other 26 applicants whose appeals were heard in the consolidated hearing” and contend that such a 27 “cursory dismissal . . . utterly fails to meet the standard to support an adverse credibility 28 determination as instructed by the Ninth Circuit.” (Doc. 14 at 6.) Plaintiffs also contend 1 that the credibility finding in this case was “even more deficient” than the credibility 2 finding that was reversed in Bedonie v. ONHIR, No. CV-17-08270-PCT-DJH (D. Ariz. 3 2019). (Id. at 6-7.) Plaintiffs conclude that “where the [I]HO stated no reasons for finding 4 all of Plaintiffs’ witnesses not to be credible, not even attempting to meet the requirements 5 of the APA,” reversal is warranted. (Id. at 8.) 6 In response, OHNIR accuses Plaintiffs of attacking a strawman. (Doc. 15 at 13-14.) 7 Specifically, OHNIR notes that although only one sentence of analysis appears in the 8 “credibility findings” section of the IHO’s opinion, the IHO proceeded to “spen[d] several 9 pages of the decision addressing Plaintiffs’ and other witnesses’ lack of credibility 10 compared to objectively verifiable, contrary evidence submitted by ONHIR as well as 11 contradictory and unsupported statements from the Plaintiffs.” (Id.) OHNIR thus argues 12 that “Plaintiffs’ attempt to make the IHO’s credibility determinations appear thin based on 13 the fact that IHO’s reasons are in a different part of the Decision is not persuasive or legally 14 relevant.” (Id.) 15 In reply, Plaintiffs seem to acknowledge that the IHO did, in fact, identify at least 16 “three facts” that contradicted their testimony. (Doc. 17 at 3.) Nevertheless, Plaintiffs 17 argue that the IHO’s identification of such contradictory facts was not, standing alone, 18 sufficient to support the IHO’s adverse credibility determination because “[i]f a witness 19 can be found not credible, simply because of conflicting evidence elsewhere in the record, 20 then the testimony of almost any witness may be dismissed” and contend that the IHO was 21 required to “specifically identify internal contradictions of each witness’s testimony, or 22 contradictions with the testimony of others.” (Id. at 3-5.) 23 Plaintiffs have not established that the IHO committed reversible error with respect 24 to the adverse credibility determination. Initially, Plaintiffs accused the IHO of providing 25 a “cursory,” “one sentence” rationale for the adverse credibility determination that was 26 supported by “no reasons.” This argument fails because it is based on a false premise. As 27 ONHIR correctly points out in its response, the IHO provided a laundry list of reasons in 28 support of the adverse credibility determination. Although it is unfortunate that these 1 reasons appeared under the heading “Hearing Officer’s Decision” (Doc. 10-1 at 347-358), 2 rather than under the heading “Credibility Findings Related To All Applicants” (id. at 346), 3 it is clear in context that they supplied the IHO’s rationale for the adverse credibility 4 determination. Cf. Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. 5 Co., 463 U.S. 29, 43 (1983) (“We will . . . uphold a decision of less than ideal clarity if the 6 agency’s path may reasonably be discerned.”) (citation and internal quotation marks 7 omitted). 8 To the extent the new argument that Plaintiffs developed for the first time in their 9 reply—that is, that an IHO’s adverse credibility determination may not be based solely on 10 the identification of contradictory evidence in the record and instead must be based on the 11 identification of internal inconsistencies within a witness’s testimony—is even properly 12 before the Court,4 it fails as well. As discussed, under the APA’s deferential standard of 13 review, this Court must affirm so long as the IHO offered a “specific, cogent reason” for 14 the adverse credibility determination that was supported by substantial evidence. Courts 15 have long recognized that inconsistency with other evidence in the record is a legitimate 16 basis for discounting the credibility of a witness, see, e.g., Ninth Cir. Model Civ. Jury Instr. 17 1.14 (“In considering the testimony of any witness, you may take into account . . . whether 18 other evidence contradicted the witness’s testimony.”), and Plaintiffs have not identified 19 any decision suggesting that such contradiction nevertheless fails to qualify as a “specific, 20 cogent reason” supporting an agency adjudicator’s credibility determination. 21 III. Preclusion 22 Plaintiffs next argue that, because their uncle Harris Chezumpena and his daughters 23 were found in earlier proceedings to have occupied the HPL homesite through 1976, the 24 IHO should have been precluded in this proceeding from finding that Plaintiffs and their 25 families abandoned the site before December 22, 1974. (Doc. 14 at 8-12.) 26 In response, OHNIR argues that Plaintiffs’ position is foreclosed by United States 27 v. Mendoza, 464 U.S. 154 (1984), which precludes the application of nonmutual offensive

28 4 But see Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”). 1 collateral estoppel against the government. (Doc. 15 at 14-16.) Alternatively, OHNIR 2 argues that even if Plaintiffs could theoretically apply this doctrine against a government 3 agency, it does not apply here because (1) the earlier cases did not involve the “same 4 parties” and (2) the earlier cases focused on different issues and involved different 5 evidence. (Doc. 15 at 14-15.) 6 ONHIR has the better side of these issues. Even assuming, without deciding, that 7 Plaintiffs could potentially invoke offensive collateral estoppel in this context, that doctrine 8 extends only to situations in which “the controlling facts and applicable legal rules remain 9 unchanged.” Montana v. United States, 440 U.S. 147, 158 (1979) (quoting Comm’r of 10 Internal Revenue v. Sunnen, 333 U.S. 591, 600 (1948)). “[C]hanges in facts essential to a 11 judgment will render collateral estoppel inapplicable in a subsequent action raising the 12 same issues.” Id. at 159. Here, the IHO determined that the evidence presented was 13 inconsistent with a finding that the claimed homesite was occupied by Plaintiffs through 14 December 22, 1974, rendering previous determinations to the contrary incorrect. Given 15 the presence of new evidence, it was permissible for the IHO to reach a different 16 conclusion. See, e.g., Daw v. OHNIR, 2021 WL 4938121, *3 (9th Cir. 2021) (“Daw asserts 17 that the ONHIR’s decision to grant benefits to Daw’s sister and father indicates that it 18 abused its discretion here. But those prior decisions did not bind the ONHIR here because 19 its decision as to Daw was based on evidence it had not previously heard.”). 20 IV. Arbitrary And Capricious 21 When reviewing agency action under the APA, the Court may reverse if the 22 agency’s decision was “arbitrary, capricious, an abuse of discretion, not in accordance with 23 law, or unsupported by substantial evidence.” Bedoni, 878 F.2d at 1122; see also 5 U.S.C. 24 § 706(2)(a), (e). “A decision is arbitrary and capricious only if the agency relied on factors 25 Congress did not intend it to consider, entirely failed to consider an important aspect of the 26 problem, or offered an explanation that runs counter to the evidence before the agency or 27 is so implausible that it could not be ascribed to a difference in view or the product of 28 agency expertise.” Gardner v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th Cir. 1 2011) (citation omitted). Thus, the Court must affirm if “a reasonable basis exists for [the 2 agency’s] decision.” Cal. Pac. Bank v. Fed. Deposit Ins., 885 F.3d 560, 570 (9th Cir. 2018) 3 (citation omitted). “A reasonable basis exists where the agency considered the relevant 4 factors and articulated a rational connection between the facts found and the choices 5 made.” Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008) (citation and internal 6 quotation marks omitted). 7 Under the substantial evidence standard, a court must sustain an agency’s fact-based 8 conclusions unless a reasonable factfinder could not have reached the same conclusion. 9 Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). “Substantial evidence is more than a 10 mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable 11 mind might accept as adequate to support a conclusion.” Id. Accordingly, “if evidence is 12 susceptible of more than one rational interpretation, the decision of the [agency] must be 13 upheld.” Id. 14 Here, Plaintiffs argue that the IHO relied on two justifications for departing from 15 prior findings that the family resided on the site in question on December 22, 1974: (1) the 16 fact that the site was not included in the enumeration conducted by the Bureau of Indian 17 Affairs (“BIA”) in 1974-75 (“the Enumeration”); and (2) the fact that Hopi “aggression” 18 likely caused Plaintiffs’ family to abandon the site before December 22, 1974. (Doc. 14 19 at 12.) As for the first justification, Plaintiffs contend that the Enumeration “is but one 20 piece of evidence, is not conclusive, and the record as a whole must be examined to 21 determine if Plaintiffs maintained residency on the HPL through December 22, 1974” and 22 that “[i]n other cases applicants have been certified to receive benefits despite their HPL 23 homesites or names not appearing in the enumeration.” (Id. at 12-13.) As for the second 24 justification, Plaintiffs argue that the IHO’s determination that the family may have fled 25 the homesite because of Hopi aggression was speculative and argue that such speculation 26 cannot supply the “substantial evidence” required to uphold the decision. (Id. at 16.) 27 ONHIR responds that Plaintiffs’ characterization of the IHO’s decision as resting 28 on two justifications is inaccurate because the decision was actually based on a variety of 1 factors, including but not limited to the lack of improvements to the site as evidenced in 2 the Enumeration and the later site visit, the identification of Harris and June Chezumpena 3 living on the NPL months after December 22, 1974 and not disclosing the existence of any 4 HPL site to BIA interviewers, and the accessibility and topography of the area in question. 5 (Doc. 15 at 2-7.) ONHIR contends that, taken together, the facts strongly suggest that 6 Plaintiffs were not residents of the claimed HPL site. (Id. at 16-17.) 7 Plaintiffs have not established that the IHO’s decision rested solely on the 8 Enumeration and “speculation” as to Hopi aggression or that the IHO’s consideration of 9 those two factors was arbitrary and capricious. The Court must consider the IHO’s decision 10 as a whole, giving due deference to the IHO’s factual findings. Here, the IHO explicitly 11 recognized that “prior decisions of ONHIR recognize applications for relocation benefits 12 when the applicants have not been identified on the BIA [Enumeration] roster” but 13 distinguished those prior decisions because the applicants in those cases were able to 14 “otherwise prove residence during the relevant time periods,” whereas “[i]n these 15 consolidated appeals, the only countervailing indications of residence beyond 16 December 22, 1974 are statements that have been deemed not credible when weighed 17 against the objective and circumstantial evidence.” (Doc. 10-1 at 355.) This was not an 18 arbitrary and capricious resolution of the Enumeration issue. Cf. Begay v. OHNIR, 2021 19 WL 4247919, *5 (D. Ariz. 2021) (considering objective factors, including Plaintiff’s 20 absence from BIA enumeration, in determining that the IHO’s conclusion that Plaintiff was 21 not a legal resident of the HPL as of December 22, 1974 was supported by substantial 22 evidence). 23 The IHO also relied on verifiable evidence in discussing the tensions between the 24 Hopi and Navajo tribes and the potential for attendant pressure to move off the HPL, 25 including: the impounding of the Chezumpena’s livestock, June Chezumpena’s complaints 26 and “indigna[tion] about the impound redemption fees,” the threats made against her, and 27 her interaction with the Hopi people. (Doc. 10-1 at 349-50.) Again, whether or not this 28 Court would have reached the same decision, the IHO’s analysis was not arbitrary and 1 || capricious and was supported by substantial evidence. 2 Finally, as ONHIR correctly points out (and as Plaintiffs largely fail to □□ acknowledge), the IHO did not rely solely on these considerations and instead considered numerous additional factors in reaching his conclusion, including aerial photography and 5 || geological survey terrain maps (id. at 344-45), the moving of livestock to an area south of 6|| what later became the partition line (id. at 346), dismantled improvements (id.), the 7 || enumeration of June and Harris Chezumpena on the NPL a month after passage of the Act 8 || (id. at 348), the lack of any remnants or indications of large structures, roads, and fencing 9|| Cid. at 351-53), and contradictions in Plaintiffs’ testimony (id. at 356-57). Taken together, || the IHO did not commit reversible error in concluding that Plaintiffs had not proved 11 || residency. 12 Accordingly, IT IS ORDERED that: 13 (1) Plaintiffs’ motion for summary judgment (Doc. 14) is denied. 14 (2) |ONHIR’s cross-motion for summary judgment (Doc. 15) is granted. 15 (3) The Clerk shall enter judgment accordingly and terminate this action. 16 Dated this 25th day of October, 2021. 17 18 Lom ee” 19 f □□ □□ Dominic W. Lanza 20 United States District Judge 21 22 23 24 25 26 27 28

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