Fuson v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: March 16, 2023
• Docket: 3:21-cv-08237
• Status: Unknown

Opinion

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

9 Johnnie Fuson, No. CV-21-08237-PCT-DJH

10 Plaintiff, ORDER

11 v.

12 Office of Navajo and Hopi Indian Relocation, 13 Defendant. 14 15 Plaintiff Johnnie Fuson (“Mr. Fuson” or “Plaintiff”) has filed an administrative 16 appeal challenging the denial of relocation benefits under 25 C.F.R. § 700.147. (Doc. 14 17 at 2). Plaintiff filed a Motion for Summary Judgment, asking this Court to (1) overturn 18 Defendant Office of Navajo and Hopi Indian Relocation’s (“ONHIR” or “Defendant”) 19 denial of relocation benefits and (2) issue declaratory injunctive relief granting his 20 application for said benefits. (Id.) Defendant filed a Cross-Motion for Summary 21 Judgment, asking this Court to uphold ONHIR’s prior decision to deny Plaintiff relocation 22 benefits. (Doc. 16). 23 I. Background 24 This case arises from the Navajo–Hopi Settlement Act (“Act”), which partitioned 25 “the former Joint Use Area (“JUA”) between the Navajo and Hopi Tribes when the two 26 tribes were unable to resolve their longstanding land dispute.” (Doc. 14 at 3); see Pub. L. 27 No. 93-531, 88 Stat. 1712 (Dec. 22, 1974). Under the Act, enrolled members subject to 28 relocation from land partitioned to the other Tribe may qualify for relocation benefits and 1 assistance. See 25 C.F.R. § 700.138. Plaintiff is an enrolled member of the Navajo Nation 2 and applied for such benefits on August 26, 2010, but was denied by ONHIR. (Docs. 14 3 at 4; 16 at 3). Plaintiff appealed the decision, and a hearing was held August 21, 2015. 4 (Doc. 16 at 3). 5 The Independent Hearing Officer (“IHO”) denied Plaintiff’s appeal, issuing the 6 decision on October 23, 2015. (Id. at 5). The IHO found “[n]o credible evidence exists in 7 the record” to conclude Plaintiff possessed legal residence at his family’s Hopi Partitioned 8 Lands (“HPL”) camp on December 22, 1974. (Doc. 11 at 220). Rather, the IHO found 9 Plaintiff was either a legal resident of (1) the Teesto Chapter area of the Navajo Reservation 10 or (2) the Seba Dalkai School. (Id.) ONHIR affirmed the IHO’s decision on November 11 23, 2015. (Doc. 16 at 6). Plaintiff claims the denial of relocation benefits violated the Act, 12 and he seeks judicial review by this Court under the Administrative Procedure Act 13 (“APA”). (Doc. 14 at 3). 14 II. Legal Standard 15 When conducting judicial review under the APA, “the reviewing court can reverse 16 only if the agency action was arbitrary, capricious, an abuse of discretion, not in accordance 17 with law, or unsupported by substantial evidence.” Bedoni v. Navajo–Hopi Indian 18 Relocation Comm’n, 878 F.2d 1119, 1122 (9th Cir. 1989) (citing 5 U.S.C. § 706(2)(A), 19 (E); Walker v. Navajo–Hopi Indian Relocation Comm’n, 728 F.2d 1276, 1278 (9th Cir. 20 1984)). 21 The “arbitrary and capricious” standard dictates that “a reviewing court may not set 22 aside an agency rule that is rational, based on consideration of the relevant factors and 23 within the scope of the authority delegated to the agency by the statute.” Motor Vehicle 24 Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 42 (1983). The “standard 25 is narrow and a court is not to substitute its judgment for that of the agency.” (Id. at 43). 26 The “arbitrary and capricious standard is ‘highly deferential, presuming the agency action 27 to be valid and [requires] affirming the agency action if a reasonable basis exists for its 28 decision.” Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (quoting 1 Indep. Acceptance Co. v. California, 204 F.3d 1247, 1251 (9th Cir. 2000)). 2 The “substantial evidence” level of proof requires “such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion even if it is possible to 4 draw two inconsistent conclusions from the evidence.” Nat’l Fam. Farm Coal. v. EPA, 5 960 F.3d 1120, 1132–33 (9th Cir. 2020) (internal quotation omitted). Courts often describe 6 this as “more than a mere scintilla but less than a preponderance.” Orteza v. Shalala, 50 7 F.3d 748, 749 (9th Cir. 1995). The reasoning rests in the “fundamental principle that an 8 agency, its experts, and its administrative law judges are better positioned to weigh 9 conflicting evidence than a reviewing court.” Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th 10 Cir. 2017). 11 Finally, “summary judgment is an appropriate mechanism” for judicial review under 12 the APA. Occidental Eng’g Co. v. Immigr. & Naturalization Serv., 753 F.2d 766, 770 (9th 13 Cir. 1985). “However, the agency is the fact finder and the court’s role ‘is to determine 14 whether or not as a matter of law the evidence in the administrative record permitted the 15 agency to make the decision it did.’” Begay v. Off. of Navajo & Hopi Indian Relocation, 16 2022 WL 3285443, at *2 (D. Ariz. Aug. 11, 2022) (citing Occidental Eng’g Co., 753 F.2d 17 at 769). 18 III. Discussion 19 Under the Act, the applicant bears the burden of proving, on December 22, 1974, 20 they were (1) “the head of household” and (2) a resident “of an area partitioned to the Tribe 21 of which they were not [a] member[].” 25 C.F.R. § 700.147(a–b). Here, the parties 22 stipulated that Plaintiff satisfied the head-of-household requirement. (Docs. 14 at 4; 16 at 23 4). Plaintiff’s residency is the only issue. 24 A. Plaintiff’s Residency 25 “Residence is established by proving that the head of household and/or his/her 26 immediate family were legal residents as of December 22, 1974, of the lands partitioned to 27 the Tribe of which they are not members.” 25 C.F.R. § 700.97. Residence “is meant to be 28 given its legal meaning [] which requires an examination of a person’s intent to reside 1 combined with manifestations of that intent.” 49 Fed. Reg. 22277 (May 29, 1984).1 2 Accordingly, “[a]n individual who was, on December 22, 1974, away from the land 3 partitioned to the Tribe of which he/she is not a member may still be able to prove legal 4 residence.” (Id.) 5 The Court considers several factors when examining an individual’s “intent to reside 6 [in partitioned lands] combined with manifestations of that intent.” (Id.) Some include: 7 Ownership of livestock, Ownership of improvements, Grazing 8 Permits, Livestock sales receipts, Homesite leases, Public health records, Medical and Hospital records, including those 9 of Medicinemen, Trading Post records, School records, 10 Military records, Employment records, Mailing Address records, Banking records, Drivers license records, Voting 11 records—tribal and county, Home ownership or rental off the 12 disputed area, BIA Census Data, Information obtained by Certification Field Investigation, Social Security 13 Administration records, Marital records, Court records, Records of Birth, Joint Use Area Roster, any other relevant 14 data. 15 16 49 Fed. Reg. 22278 (May 29, 1984); see Tso v. Off. of Navajo & Hopi Indian Relocation, 17 2019 WL 1877360, at *3 (D. Ariz. Apr. 26, 2019). The final rule further states, “[o]nce 18 legal residence is proven, current occupancy (which is a fluctuating condition) is not 19 required for eligibility.” 49 Fed. Reg. 22278. 20 The IHO concluded there was “[n]o credible evidence . . . to conclude that applicant 21 had a legal residence at the Lukai Spring HPL camp of Fannie Greyhair on December 22, 22 1974.” (Doc. 11 at 220). Rather, the IHO found Plaintiff to be a legal resident of either 23 (1) “the Teesto chapter area of the Navajo Reservation . . . as he was enumerated there as 24 a resident,” or (2) the “Seba Dalkai School where he was living with his wife and family 25 and where he had been living for several years.” (Id.) 26 In making this decision, the IHO found Plaintiff’s testimony confusing and

27 1 See also Charles v. Off. of Navajo & Hopi Indian Relocation, 774 F. App’x 389, 390 (9th Cir. 2019) (quoting 49 Fed. Reg. 22277) (“The ‘substantial and recurring contacts’ standard 28 applied by the district court is no longer the correct standard under current regulations. The correct standard is ‘intent to reside combined with manifestations of that intent.’”). 1 inconsistent, with “other testimony support[ing] the conclusion that the HPL homesite had 2 been abandoned before that date.” (Id.) The IHO emphasized testimonial inconsistencies 3 between all witnesses, such as “description of the structures at the HPL site,” Plaintiff’s 4 omission of a jewelry-crafting trade and downplaying his residence with “his wife and 5 children,” and the timing of the reduction or elimination of the family’s livestock herd. (Id. 6 at 220–23). As to the BIA Enumeration, the IHO placed weight on Plaintiff and his 7 children being expressly enumerated at the family’s “NPL homesite . . . in early 1975,” but 8 not being expressly named at the HPL site. (Id. at 221). 9 Plaintiff argues the IHO’s decision, regarding his lack of residency, was arbitrary 10 and capricious and unsupported by substantial evidence because it (1) used BIA 11 Enumeration evidence in an “internally inconsistent and contradictory” manner, and (2) 12 disregarded ONHIR’s customary use policy. (Docs. 14 at 10, 15, 17; 20 at 2–3, 10). The 13 Court will address each of Plaintiff’s arguments in turn. 14 1. BIA Enumeration Evidence 15 First, the Court finds the IHO did not use BIA Enumeration evidence inconsistently 16 or contradictorily. Under 49 Fed. Reg. 22278, the IHO is expressly allowed to consider 17 “BIA Census Data . . . Joint Use Area Roster, [and] any other relevant data.” 49 Fed. Reg. 18 22278; see Bahe ex rel. Bahe v. Off. of Navajo & Hopi Indian Relocation, 770 F. App’x 19 871, 872 (9th Cir. 2019) (“[T]he ONHIR drew reasonable inferences from the Joint Use 20 Area Roster, which, along with other evidence, substantiated the residency 21 determination.”). As Defendant points out, the IHO used BIA Enumeration and testimonial 22 evidence in his decision. (See Doc. 11 at 220). For example, the IHO noted that Plaintiff 23 “identifies the structures at Fannie Greyhair’s Lukai Spring residence differently than the 24 other two witnesses” and “downplays his residence at Seba Dalkai School where his wife 25 and children lived.” (Doc. 11 at 221). 26 The Court rejects Plaintiff’s assertion that it was contradictory for the IHO to place 27 weight on Plaintiff’s named enumeration at the Teesto Chapter NPL (“Navajo Partitioned 28 Lands”) site in 1975, while undervaluing that “Fannie and her ‘Family Group’ were 1 enumerated at her HPL site” in January and April 1975. (Doc. 20 at 5). Indeed, the record 2 shows Plaintiff was expressly named at the NPL site along with his ex-wife and children. 3 (Doc. 11 at 228). Plaintiff was not expressly named at the HPL site. (Id. at 190). The 4 Court finds it reasonable that the IHO was unwilling to find Plaintiff was included in the 5 HPL site’s “Family Group” without him (or his ex-wife and/or children) being specifically 6 named.2 7 Plaintiff also argues the BIA Enumeration evidence “should not be relied upon as 8 conclusive evidence of legal residency.” (Doc. 14 at 13). To be sure, “[t]he Commission 9 has always taken the position that the enumeration list is not conclusive as to eligibility,” 10 but the IHO did not conclusively use the BIA Enumeration evidence here. Walker, 728 11 F.2d at 1279. Instead, the IHO bolstered his finding with testimonial evidence from 12 Plaintiff and other witnesses. (See e.g., Doc. 11 at 220 (“[Plaintiff’s] testimony about the 13 [HPL] camp was confusing and inconsistent and other testimony supports the conclusion 14 that the HPL homesite had been abandoned before [December 22, 1974].”); id. at 222). 15 The Court thus rejects Plaintiff’s contention the IHO conclusively and solely used the BIA 16 Enumeration in his decision. 17 The Court also rejects Plaintiff’s argument that the IHO’s use of BIA Enumeration 18 evidence was arbitrary and inconsistent with other applicants’ decisions. (See Doc. 14 at 19 13–14). To support this proposition, Plaintiff cites the Harry Isaac and Ruth Begay 20 (Plaintiff’s ex-wife) decisions. (See Doc. 14 at 14). Both cases “do not assist in the 21 resolution of this case . . . because they are either distinguishable or have not been shown 22 to be apposite to this case.” Akee v. Off. of Navajo & Hopi Indian Relocation, 907 F. Supp. 23 315, 319 (D. Ariz. 1995). First, unlike the Harry Isaac decision, the IHO here determined, 24 through BIA Enumeration and testimonial evidence, that Plaintiff’s family had abandoned 25 their HPL site before the Act’s regulatory deadline of December 22, 1974. (See Doc. 11

26 2 Compare Doc. 16 at 2–3 (Defendant stating: “No family members were enumerated with Fannie Greyhair at her HPL site, while thirteen (13) family members, including Plaintiff, 27 were enumerated at the NPL sites.”), with Doc. 20 at 5 (Plaintiff stating: “The BIA Enumeration Roster, which is part of the record, shows that Fannie and her ‘Family Group’ 28 were enumerated at her HPL site . . . on January 15, 1975, April 24, 1975 and April 28, 1975.”). 1 at 205). As for the Ruth Begay decision, Plaintiff argues it logically cannot make sense for 2 Ruth to have been “certified as a domiciliary of HPL on December 22, 1974, but Mr. Fuson 3 is found to be a domiciliary of Ms. Begay’s apartment on December 22, 1974.” (Doc. 14 4 at 14). The Court finds this argument unavailing because the IHO first found Plaintiff to 5 be “a legal resident in the Teesto Chapter area of the Navajo Reservation” on December 6 22, 1974, with “Ms. Begay’s apartment” being an alternative legal residence. (Doc. 11 at 7 220). Ruth Begay was also enumerated at her parents’ HPL site, which ostensibly entailed 8 different facts than Plaintiff’s claim here. (Doc. 16 at 14); see Daw v. Off. of Navajo & 9 Hopi Indian Relocation, 2020 WL 5632121, at *4 (D. Ariz. Sept. 21, 2020) (finding that 10 the agency must apply “the law consistently to cases with similar material facts; it does not 11 require the agency find the same facts for different parties, in different proceedings, and 12 based on different evidence”). 13 2. ONHIR’s Customary Use Policy 14 Second, the Court finds the IHO did not ignore ONHIR’s “customary use policy.” 15 Plaintiff asserts the IHO neglected to apply such a policy, regarding applicants who 16 maintain or are connected to Navajo “traditional use area[s].” (Doc. 14 at 15). Plaintiff 17 contends this “policy was made part of the adjudicatory law in the [Minnie Woodie case].” 18 (Id.); see Begay v. Off. of Navajo & Hopi Indian Relocation, 305 F. Supp. 3d 1040, 1048 19 (D. Ariz. 2018) (“The concept of maintaining a ‘traditional use area’ is not expressly 20 codified in federal regulations regarding residency, but [ONHIR] concedes that it has 21 historically recognized this as a basis for residency.”); Shaw v. Off. of Navajo & Hopi 22 Indian Relocation, 860 F. App’x 493, 494 (9th Cir. 2021) (“[Applicant] qualifies as a legal 23 resident of the land if she was using it for traditional activities.”); Begay v. Off. of Navajo 24 & Hopi Indian Relocation, 770 F. App’x 801, 802 (9th Cir. 2019) (stating if both a family’s 25 HPL and NPL sites “constituted a single ‘traditional use area’ as of December 22, 1974, 26 [applicant] would be treated as a legal resident of the entire area”). Defendant argues the 27 “Minnie Woodie policy is not official policy that ONHIR or the IHO are required to 28 follow.” (Doc. 16 at 14). 1 The Court need not determine whether the so-called “Minnie Woodie policy” is 2 ONHIR’s official policy or binding precedent because the IHO’s decision squarely 3 addressed the issue in Plaintiff’s case. The IHO concluded: “If there had been a traditional 4 use area that encompassed both sides of the partition line, that traditional use area was 5 abandoned by Fannie Greyhair when her livestock was sold and it did not exist as of the 6 date of passage of the Act.” (Doc. 11 at 222 (emphasis added)). 7 The IHO’s decision also belies Plaintiff’s contention that his case fits “the Minnie 8 Woodie criteria” because he “lived a traditional lifestyle of grazing livestock and making 9 silver jewelry.” (Doc. 14 at 16). The IHO stated “the most bizarre feature of [Plaintiff’s 10 relative’s] testimony” was that Plaintiff was a “craftsman of jewelry”—a fact Plaintiff 11 omitted entirely in his testimony. (Doc. 11 at 221). Plaintiff also needed to demonstrate 12 he was traditionally grazing livestock as of “the December 22, 1974 regulatory cutoff to 13 determine whether a traditional use area existed that time.” See Begay, 770 F. App’x at 14 802. The IHO found Plaintiff unable to do so because the family “participated at least 15 twice in the Livestock Reduction Program several times and her flock and herd were 16 significantly reduced or eliminated by the end of 1974.” (Doc. 11 at 217). 17 Thus, because this Court’s “standard is narrow and [this] court is not to substitute 18 its judgment for that of the agency,” the IHO’s decision should not be disturbed. The IHO’s 19 (1) use of BIA Enumeration evidence and (2) findings regarding Plaintiff’s family’s 20 “traditional use area” are supported by substantial evidence and not arbitrary and 21 capricious. The IHO provided “a reasonable basis . . . for [his] decision” with “such 22 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 23 Kern Cnty. Farm Bureau, 450 F.3d at 1076. 24 B. IHO’s Credibility Findings 25 Plaintiff argues the IHO failed to provide specific and cogent reasons for his adverse 26 credibility findings and cherry-picked evidence rather than engaging in a true analysis. 27 (Doc. 20 at 13–14). He takes issue that the IHO found all witnesses’ testimonies to be 28 incredible. (Id.) Defendant argues substantial evidence supports the IHO’s credibility 1 determinations. (Doc. 16 at 15). 2 The substantial evidence standard governs when reviewing an IHO’s credibility 3 findings. This is often described as “more than a mere scintilla, but less than a 4 preponderance.” Orteza, 50 F.3d at 749. If “the decision of an ALJ rests on a negative 5 credibility evaluation, the ALJ must make findings on the record and must support those 6 findings by pointing to substantial evidence on the record.” Ceguerra v. Secretary of 7 Health & Hum. Servs., 933 F.2d 735, 738 (9th Cir. 1991). 8 “[I]f an ALJ has grounds for disbelieving material testimony, it is both reasonable 9 and desirable to require the ALJ to articulate those grounds in the original decision.” (Id. 10 at 740 (citing Varney v. Secretary of Health & Hum. Servs., 859 F.2d 1396, 1399 (9th Cir. 11 1988))). But an IHO’s “credibility findings are granted substantial deference by reviewing 12 courts.” Begay, 305 F. Supp. 3d at 1049 (quoting De Valle v. Immigr. & Naturalization 13 Serv., 901 F.2d 787, 792 (9th Cir. 1990)). This deference stems from the IHO being “in a 14 position to observe [a witness]’s tone and demeanor, to explore inconsistencies in 15 testimony, and to apply workable and consistent standards in the evaluation of testimonial 16 evidence. He[/she] is . . . uniquely qualified to decide whether a [witness]’s testimony has 17 about it the ring of truth.” (Id. (quoting Sarvia–Quintanilla v. United States Immigr. & 18 Naturalization Serv., 767 F.2d 1387, 1395 (9th Cir. 1985) (alterations in original)). 19 The Court finds the IHO articulated specific, cogent reasons for his credibility 20 findings. The IHO found Plaintiff incredible because he “downplay[ed] his residence at 21 Seba Dalkai School where his wife and children lived,” “completely omitted” his jewelry 22 craftsmanship (which a relative testified about), and “could not accurately identify the 23 improvements at [his grandmother’s] Lukai Spring [HPL] home.” (See Doc. 11 at 218– 24 21); Begay, 305 F. Supp. 3d at 1050 (finding the IHO’s credibility findings were specific 25 and cogent because he noted plaintiff’s difficulty in recalling event dates and witnesses’ 26 memory failures and absence from the area). The IHO also found Plaintiff’s brother and 27 younger relative to be incredible because all three witnesses had “confusing, conflicting 28 and inconsistent” testimonies. See Begay, 2022 WL 3285443, at *4 (finding the 1 “inconsistencies between Plaintiff’s testimony and his mother and sister’s testimonies” 2 were a sufficient reason to find plaintiff’s testimony incredible). The IHO noted that 3 Plaintiff’s younger relative’s “recollections are 40 years old from a time when she was . . . 4 11 years of age which make her memories highly suspect and not believable.” (Doc. 11 at 5 222). The IHO also considered objective evidence, such as the BIA Enumeration and 6 Plaintiff’s wife and children residing at the Seba Dalkai School, when he deemed the 7 witnesses incredible. (Id. at 218, 220–22). 8 The Court finds the IHO’s credibility findings should not be disturbed. The IHO 9 provided “more than a mere scintilla” of evidence in support of his conclusions. Orteza, 10 50 F.3d at 749. Although this Court might hesitate because the IHO found all three 11 witnesses incredible, “credibility findings are granted substantial deference” and the 12 “[IHO] is . . . uniquely qualified to decide whether [] testimony has about it the ring of 13 truth.” Begay, 305 F. Supp. 3d at 1049 (citations omitted). The Court finds the IHO had 14 sufficient reason to deem the witnesses here incredible. 15 IV. Conclusion 16 For these reasons, the Court will deny Plaintiff’s Motion for Summary Judgment 17 and grant Defendant’s Cross-Motion for Summary Judgment. The IHO’s decision to deny 18 Plaintiff’s relocation benefits appeal, based on a lack of legal residence, was supported by 19 substantial evidence and not arbitrary and capricious. 20 Accordingly, 21 IT IS HEREBY ORDERED that the Independent Hearing Officer’s decision dated 22 October 23, 2015 (Doc. 11 at 216–23) is affirmed. 23 IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment 24 (Doc. 14) is denied. 25 IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary 26 Judgement (Doc. 16) is granted. 27 … 28 … 1 IT IS FINALLY ORDERED that the Clerk of the Court shall enter judgment and || terminate this case. 3 Dated this 16th day of March, 2023. 4 5 ' So — □□ 6 Kear Diangé. 7 United States District Fudge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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