NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
EUGENE DAW, No. 20-17261
Plaintiff-Appellant, D.C. No. 3:19-cv-08212-SMB
v. MEMORANDUM* OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION, an Administrative Agency of the United States,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding
Submitted October 20, 2021** San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and BERMAN,*** District Judge.
Eugene Daw appeals from the district court’s order granting summary
judgment in favor of the Office of Navajo and Hopi Indian Relocation (“ONHIR”)
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard M. Berman, United States District Judge for the Southern District of New York, sitting by designation. and upholding the ONHIR’s denial of Daw’s application for relocation benefits
under the Navajo-Hopi Land Settlement Act, 25 U.S.C. §§ 640d to 640d-31. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We review de novo
the district court’s summary judgment decision, and we must independently review
the ONHIR’s decision to determine if it was “arbitrary, capricious, an abuse of
discretion, not in accordance with law, or unsupported by substantial evidence.”
Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir.
1989) (citing 5 U.S.C. § 706(2)(A), (E); other citation omitted).
The Navajo-Hopi Land Settlement Act partitioned certain land once jointly
held by the Navajo Nation and the Hopi Tribe, allocating some of the area to the
Navajo Nation (Navajo Partitioned Land or NPL) and other areas to the Hopi Tribe
(Hopi Partitioned Land or HPL). See id. at 1121–22. Daw is entitled to benefits if
he was a legal resident of HPL on December 22, 1974, and he maintained that
residency until he became head of household. See 25 C.F.R. §§ 700.147(a),
700.97(a), 700.69(c); Bedoni, 878 F.2d at 1122–23. The ONHIR concluded that
Daw is not entitled to benefits because Daw was not a resident of HPL when he
became head of household, which Daw claims occurred in 1982.1 We discern no
1 The government disputes that Daw became head of household in 1982, asserting it occurred later, if at all. But we need not resolve this issue because we uphold the ONHIR’s decision based on its finding that Daw did not reside on HPL
2 error.
1. Daw contends that the ONHIR committed legal error by failing to
recognize that, if he established that he previously lived on HPL, the burden shifted
to the government to establish that his residence had changed. However, “[t]he
burden of proving residence and head of household status is on the applicant.” 25
C.F.R. § 700.147(b). Nothing in Daw’s cited authority suggests that burden ever
shifts to the government.
2. Daw argues that the ONHIR’s decision to deny him benefits based on
its conclusion that he failed to establish residency on HPL at the time he became
head of household is not supported by substantial evidence. Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion even if it is possible to draw two inconsistent conclusions
from the evidence.” Nat’l Fam. Farm Coal. v. EPA, 960 F.3d 1120, 1132–33 (9th
Cir. 2020) (citation omitted). It is a “fundamental principle that an agency, its
experts, and its administrative law judges are better positioned to weigh conflicting
evidence than a reviewing court.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th
Cir. 2017).
after the partition fence was erected in 1975, which prevents Daw from showing he was a resident of HPL when he asserts that he became head of household in 1982.
3 Daw asserts that he demonstrated residence on HPL under ONHIR policy
recognizing residency based on the continuous use of HPL for traditional
activities.2 To establish residency under that policy, Daw had to show that he
continuously used HPL for traditional Navajo activities before December 22, 1974,
through when he became head of household.3 Daw asserts that the record supports
that he continuously grazed livestock and gathered wood on HPL during the
relevant period.4
The ONHIR determined that Daw did not establish entitlement to benefits
because it found that he ceased using HPL for traditional activities after the
partition fence was erected in 1975, prior to when he claims he attained head of
household status in 1982. Substantial evidence supports that determination.
First, it is unclear how frequently Daw gathered wood, and Daw cites to
nothing in the record supporting his continuous use of HPL to gather wood. The
2 Evidence in the record indicates that there were no dwellings on HPL during the relevant period, which adequately supports that Daw did not physically live on HPL when he became head of household. 3 This policy of recognizing residency based on the “continuous use” of HPL for traditional activities is not codified in the federal regulations but instead comes from an independent hearing officer’s decision in In re Minnie Woodie, No. 5124. Begay v. ONHIR, 305 F. Supp. 3d 1040, 1048 (D. Ariz. 2018). 4 We do not consider any other traditional activities that the record may support because Daw stated “[n]o, that’s all we do” when asked if he did “[a]nything else” besides gathering wood and grazing livestock. Evidence of other activities therefore contradicts that explicit testimony, thereby entitling the ONHIR to reject that Daw used HPL for any other activities. See Nat’l Fam. Farm Coal., 960 F.3d at 1132–33; Shaibi, 883 F.3d at 1109.
4 ONHIR was entitled to resolve these ambiguities in the record against Daw. See
Cal. Pac. Bank v. Fed. Deposit Ins., 885 F.3d 560, 570 (9th Cir. 2018).
Second, while some testimony supports that Daw grazed livestock on HPL
after erection of the partition fence, other evidence in the record contradicts that
testimony. For example, testimony indicates that Hopi Rangers aggressively
patrolled HPL from approximately 1980 to 1984 and that they impounded Navajo
livestock grazing on HPL. Other testimony describes how sheep went under the
partition fence onto HPL, and the record supports that Daw’s father retrieved the
sheep but did not allow members of Daw’s family to retrieve them due to the Hopi
Rangers. Substantial evidence therefore supports the ONHIR’s finding that “the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
EUGENE DAW, No. 20-17261
Plaintiff-Appellant, D.C. No. 3:19-cv-08212-SMB
v. MEMORANDUM* OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION, an Administrative Agency of the United States,
Defendant-Appellee.
Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding
Submitted October 20, 2021** San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and BERMAN,*** District Judge.
Eugene Daw appeals from the district court’s order granting summary
judgment in favor of the Office of Navajo and Hopi Indian Relocation (“ONHIR”)
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard M. Berman, United States District Judge for the Southern District of New York, sitting by designation. and upholding the ONHIR’s denial of Daw’s application for relocation benefits
under the Navajo-Hopi Land Settlement Act, 25 U.S.C. §§ 640d to 640d-31. We
have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. We review de novo
the district court’s summary judgment decision, and we must independently review
the ONHIR’s decision to determine if it was “arbitrary, capricious, an abuse of
discretion, not in accordance with law, or unsupported by substantial evidence.”
Bedoni v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir.
1989) (citing 5 U.S.C. § 706(2)(A), (E); other citation omitted).
The Navajo-Hopi Land Settlement Act partitioned certain land once jointly
held by the Navajo Nation and the Hopi Tribe, allocating some of the area to the
Navajo Nation (Navajo Partitioned Land or NPL) and other areas to the Hopi Tribe
(Hopi Partitioned Land or HPL). See id. at 1121–22. Daw is entitled to benefits if
he was a legal resident of HPL on December 22, 1974, and he maintained that
residency until he became head of household. See 25 C.F.R. §§ 700.147(a),
700.97(a), 700.69(c); Bedoni, 878 F.2d at 1122–23. The ONHIR concluded that
Daw is not entitled to benefits because Daw was not a resident of HPL when he
became head of household, which Daw claims occurred in 1982.1 We discern no
1 The government disputes that Daw became head of household in 1982, asserting it occurred later, if at all. But we need not resolve this issue because we uphold the ONHIR’s decision based on its finding that Daw did not reside on HPL
2 error.
1. Daw contends that the ONHIR committed legal error by failing to
recognize that, if he established that he previously lived on HPL, the burden shifted
to the government to establish that his residence had changed. However, “[t]he
burden of proving residence and head of household status is on the applicant.” 25
C.F.R. § 700.147(b). Nothing in Daw’s cited authority suggests that burden ever
shifts to the government.
2. Daw argues that the ONHIR’s decision to deny him benefits based on
its conclusion that he failed to establish residency on HPL at the time he became
head of household is not supported by substantial evidence. Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion even if it is possible to draw two inconsistent conclusions
from the evidence.” Nat’l Fam. Farm Coal. v. EPA, 960 F.3d 1120, 1132–33 (9th
Cir. 2020) (citation omitted). It is a “fundamental principle that an agency, its
experts, and its administrative law judges are better positioned to weigh conflicting
evidence than a reviewing court.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th
Cir. 2017).
after the partition fence was erected in 1975, which prevents Daw from showing he was a resident of HPL when he asserts that he became head of household in 1982.
3 Daw asserts that he demonstrated residence on HPL under ONHIR policy
recognizing residency based on the continuous use of HPL for traditional
activities.2 To establish residency under that policy, Daw had to show that he
continuously used HPL for traditional Navajo activities before December 22, 1974,
through when he became head of household.3 Daw asserts that the record supports
that he continuously grazed livestock and gathered wood on HPL during the
relevant period.4
The ONHIR determined that Daw did not establish entitlement to benefits
because it found that he ceased using HPL for traditional activities after the
partition fence was erected in 1975, prior to when he claims he attained head of
household status in 1982. Substantial evidence supports that determination.
First, it is unclear how frequently Daw gathered wood, and Daw cites to
nothing in the record supporting his continuous use of HPL to gather wood. The
2 Evidence in the record indicates that there were no dwellings on HPL during the relevant period, which adequately supports that Daw did not physically live on HPL when he became head of household. 3 This policy of recognizing residency based on the “continuous use” of HPL for traditional activities is not codified in the federal regulations but instead comes from an independent hearing officer’s decision in In re Minnie Woodie, No. 5124. Begay v. ONHIR, 305 F. Supp. 3d 1040, 1048 (D. Ariz. 2018). 4 We do not consider any other traditional activities that the record may support because Daw stated “[n]o, that’s all we do” when asked if he did “[a]nything else” besides gathering wood and grazing livestock. Evidence of other activities therefore contradicts that explicit testimony, thereby entitling the ONHIR to reject that Daw used HPL for any other activities. See Nat’l Fam. Farm Coal., 960 F.3d at 1132–33; Shaibi, 883 F.3d at 1109.
4 ONHIR was entitled to resolve these ambiguities in the record against Daw. See
Cal. Pac. Bank v. Fed. Deposit Ins., 885 F.3d 560, 570 (9th Cir. 2018).
Second, while some testimony supports that Daw grazed livestock on HPL
after erection of the partition fence, other evidence in the record contradicts that
testimony. For example, testimony indicates that Hopi Rangers aggressively
patrolled HPL from approximately 1980 to 1984 and that they impounded Navajo
livestock grazing on HPL. Other testimony describes how sheep went under the
partition fence onto HPL, and the record supports that Daw’s father retrieved the
sheep but did not allow members of Daw’s family to retrieve them due to the Hopi
Rangers. Substantial evidence therefore supports the ONHIR’s finding that “the
Hopi Rangers’ enforcement of partition was active, regular, and threatening” such
that “applicant and his family could not use the HPL” for traditional activities.
In short, there is ambiguous and conflicting evidence as to whether Daw
continuously used HPL when he became head of household after erection of the
partition fence. The ONHIR was entitled to resolve these ambiguities and conflicts
against Daw.5 See Nat’l Fam. Farm Coal., 960 F.3d at 1133; Shaibi, 883 F.3d at
1109; Cal. Pac. Bank, 885 F.3d at 570.
5 Consequently, we do not decide whether the ONHIR erred in finding certain testimony not credible because the inconsistent evidence in the record amply supports its decision to deny benefits even assuming that all testimony supporting Daw’s claim was credible. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (per curiam).
5 3. Finally, Daw asserts that the ONHIR’s decision to grant benefits to
Daw’s sister and father indicates that it abused its discretion here. But those prior
decisions did not bind the ONHIR here because its decision as to Daw was based
on evidence it had not previously heard. See Stacy v. Colvin, 825 F.3d 563, 566–
67 (9th Cir. 2016). Moreover, Daw has not overcome the presumption that the
ONHIR acted lawfully because he has not shown that there was “no discernible
rational basis for the agency’s action” given that the record here supports its
decision, as discussed above. See Davis v. EPA, 348 F.3d 772, 781 (9th Cir. 2003)
(citation omitted).
AFFIRMED.