Larry Begay v. Onhir

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2019
• Docket: 18-15489
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LARRY K. BEGAY, Administrator of the No. 18-15489 estate of Charley Begay, D.C. No. 3:16-cv-08229-JAT Plaintiff-Appellant,

v. MEMORANDUM*

OFFICE OF NAVAJO & HOPI INDIAN RELOCATION,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted May 17, 2019** San Francisco, California

Before: McKEOWN and GOULD, Circuit Judges, and BATTAGLIA,*** District Judge.

Larry Begay (“L. Begay”) appeals the district court’s grant of summary

* 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 Anthony J. Battaglia, United States District Judge for the Southern District of California, sitting by designation. judgment to the Office of Navajo & Hopi Indian Relocation (“ONHIR”) affirming

the ONHIR’s denial of the application for relocation benefits submitted by his father,

Charley Begay (“C. Begay”), a member of the Navajo Nation.1 We review de novo

the district court’s grant of summary judgment. Brunozzi v. Cable Commc’ns, Inc.,

851 F.3d 990, 995 (9th Cir. 2017). We review the ONHIR’s decision to determine

if it was “arbitrary, capricious, an abuse of discretion, . . . otherwise not in

accordance with law,” or “unsupported by substantial evidence.” 5 U.S.C. § 706(2).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The ONHIR provided “specific, cogent reason[s]” for, and substantial

evidence supported, its credibility determinations. De Valle v. INS, 901 F.2d 787,

792 (9th Cir. 1990) (quotation omitted). C. Begay struggled to clearly recall certain

dates and expressly indicated that he had memory difficulties due to his advanced

age. C. Begay’s daughter-in-law did not move into his home until years after the

pertinent time period. Even though L. Begay and his brother testified inconsistently

as to certain facts and could not recall other information, the ONHIR did not

expressly call into question their credibility. In light of the substantial deference

afforded to such agency determinations, we observe no reversible error.

The ONHIR’s analysis of the merits of the benefit application seemingly

1 C. Begay passed away during the pendency of proceedings, and L. Begay substituted as party in interest.

2 accepted as true the relevant facts testified to by these witnesses. The ONHIR

nonetheless concluded that C. Begay failed to meet his burden of proving that, “as

of December 22, 1974,” he and his family were “legal residents” of Old Branch,

which was later designated Hopi Partitioned Land. 25 C.F.R. §§ 700.97(a),

700.147(b). There is no dispute that in the spring of 1974 the Begay family

transferred its primary residence from Old Branch to Whitewater, which was later

designated Navajo Partitioned Land. If Old Branch and Whitewater constituted a

single “traditional use area” as of December 22, 1974, C. Begay would be treated as

a legal resident of the entire area and would therefore be entitled to relocation

benefits.

However, the ONHIR concluded that the Begay family’s use of the two

properties as of December 22, 1974 was not “traditional” because they first resided

full-time at Old Branch for several years, and then moved nearly full-time to

Whitewater, while using a cornfield at Old Branch for the 1974 growing season. L.

Begay argues this ruling is inconsistent with the ONHIR’s grant of benefits to other,

similarly situated applicants who resided on traditional use areas. Even assuming

these non-precedential, individualized rulings somehow constitute established

practice limiting the agency’s discretion, the ONHIR’s decision here was neither

contrary to that practice, nor was it otherwise arbitrary or capricious. See

Andrzejewski v. FAA, 563 F.3d 796, 799 (9th Cir. 2009). In each of the cited

3 decisions, the applicant’s family, unlike the Begay family, continuously used all of

their properties in the same manner for many years prior to 1974. And, again unlike

the Begay family, each of those families either occupied each property for a roughly

proportional amount of time each year or spent at least a full season on each property

every year. In those cases, as here, the ONHIR focused on evidence of land use

prior to the December 22, 1974 regulatory cutoff to determine whether a traditional

use area existed at that time. See 25 C.F.R. § 700.147.

Finally, the ONHIR drew reasonable inferences from the Joint Use Area

Roster, which, along with other evidence, substantiated the residency determination.

The ONHIR also reasonably relied on the testimony of the Bureau of Indian Affairs

official discussing the accuracy, thoroughness, and reliability of that survey. L.

Begay’s challenges to these aspects of the ONHIR’s determination are without merit.

AFFIRMED.