Fort Peck Housing Authority v. United States Department of Housing & Urban Development

367 F. App'x 884
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 19, 2010
Docket06-1425, 06-1447
StatusUnpublished
Cited by8 cases

This text of 367 F. App'x 884 (Fort Peck Housing Authority v. United States Department of Housing & Urban Development) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fort Peck Housing Authority v. United States Department of Housing & Urban Development, 367 F. App'x 884 (10th Cir. 2010).

Opinion

ORDER AND JUDGMENT *

TERRENCE L. O’BRIEN, Circuit Judge.

This case involves the Native American Housing Assistance and Self-Determination Act of 1996 (NAHASDA), 25 U.S.C. §§ 4101-4243. 1 In that act Congress di *885 rected the Department of Housing and Urban Development (HUD) to enter into a collaborative process with interested Native American tribes and their designated housing entities (Tribal Housing Entities) to adopt regulations providing for an annual, equitable distribution of available funds for low-income housing assistance. A regulation promulgated in 1998 disqualified funding for housing units which were no longer owned or operated by a Tribal Housing Entity. 24 C.F.R. § 1000.318. In subsequent years HUD mistakenly overpaid Fort Peck Housing Authority (Fort Peck) for dwelling units it no longer owned or operated. After discovering its oversight HUD demanded a refund. Fort Peck partially repaid HUD, but then sued, alleging the “owned or operated” regulation was invalid. The district court agreed but determined Fort Peck was not entitled to a return of all monies it had already refunded. HUD appealed from the court’s invalidation of its regulation and Fort Peck cross-appealed from the denial of return of its repayments. We reverse the invalidation of HUD’s regulation, dismiss Fort Peck’s cross-appeal, and remand.

I.

A. Relevant Statutory and Regulatory History

Prior to 1997, 2 financial assistance for low-income housing programs arose through a number of separate programs under the Housing Act of 1937. See Implementation of the Native American Housing Assistance and Self-Determination Act of 1996, Proposed Rule, 62 Fed. Reg. 35,718, 35,719 (July 2, 1997). Some programs helped Indian families afford low-income rental options and others allowed families to purchase housing through lease-to-own or lease-purchase agreements. This financial assistance was awarded according to the terms of individual Annual Contribution Contracts (ACCs) between the government and individual Indian tribes or Tribal Housing Entities. See 24 C.F.R. § 1000.10(b) (defining “Annual Contributions Contract”). Each ACC was awarded a certain amount of funding for the Tribal Housing Entity to cover the costs of specific public-housing projects. 42 U.S.C. § 1437c(a)(2) (1996) (explaining the operation of ACCs). That changed.

Congress enacted NAHASDA in an attempt to consolidate low-income housing assistance for Indian tribes and simplify the distribution of funds. NAHASDA terminated the housing assistance programs established under the Housing Act of 1937 and created a new system. 3 This new method of distributing funds sought to “[recognize] the right of Indian self-determination and tribal self-governance by making such assistance available directly to the Indian tribes or tribally designated entities ...” 25 U.S.C. § 4101(7). This new system required the distribution of appropriated funds through annual block grants to individual housing entities for the purpose of carrying out affordable housing activities. 25 U.S.C. § 4111.

Congress directed HUD to establish an allocation formula for this new system to reflect the need of the Indian tribes in the distribution of appropriated funds through block grants. 25 U.S.C. § 4152(a). 4 It *886 specifically described the intended structure of the formula:

The formula shall be based on factors that reflect the need of the Indian tribes and the Indian areas of the tribes for assistance for affordable housing activities, including the following factors:
(1) The number of low-income housing dwelling units owned or operated at the time pursuant to a contract between an Indian housing authority for the tribe and the Secretary.
(2) The extent of poverty and economic distress and the number of Indian families within Indian areas of the tribe.
(3) Other objectively measurable conditions as the Secretary and the Indian tribes may specify.

25 U.S.C. § 4152(b). 5

Congress also required the regulations be crafted through a negotiated rulemak-ing process that involved interested Indian tribes. 25 U.S.C. § 4116. The negotiated rulemaking committee included fifty-eight members. Forty-eight of these members represented “geographically diverse small, medium and large Indian tribes.” 62 Fed. Reg. 35,719. This committee was larger “than usually chartered under the Negotiated Rulemaking Act” because of “the diversity of tribal interests, as well as the number and complexity of the issues involved.” Id. It operated solely by consensus and HUD agreed to use all of the committee consensus decisions, to the extent allowable under the law, as the basis for the proposed rulemaking. Id. at 35,-719-20. The committee crafted a number of factors for the block grant formula, including the factor at issue in this appeal, which HUD considered when it adopted the final regulations.

The block-grant formula was included in the final regulations and codified at 24 C.F.R. §§ 1000.304-1000.340. It included two separately calculated components: 1) “Formula Current Assisted Housing Stock” units (current units); 6 and 2) “Need.” 7 24 C.F.R. § 1000.310. In accor *887 dance with the formula, to determine the amount of funding a Tribal Housing Entity would receive in a particular fiscal year, HUD first calculated the number of current units owned or operated by each Tribal Housing Entity and earmarked funds from the total appropriation to fund them. 8

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
367 F. App'x 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fort-peck-housing-authority-v-united-states-department-of-housing-urban-ca10-2010.