Ray v. Office of Navajo and Hopi Indian Relocation

• Court: District Court, D. Arizona
• Decided: July 26, 2023
• Docket: 3:22-cv-08101
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Louise R ay, et al., ) No. CV-22-08101-PCT-SPL ) 9 ) 10 Plaintiffs, ) ORDER vs. ) ) 11 ) Office of Navajo and Hopi Indian ) 12 Relocation, ) 13 ) ) 14 Defendant. )

15 Before the Court are Plaintiffs Louise Ray, Nellie Jackson, Ruth Begay, Johnnie 16 Begay, and Lorraine Attakai’s (collectively, “Plaintiffs”) Motion for Summary Judgment 17 (Doc. 16) and Defendant Office of Navajo and Hopi Indian Relocation’s (“ONHIR” or 18 “Defendant”) Cross-Motion for Summary Judgment (Doc. 19). The Motions are fully 19 briefed. (Docs. 16, 19, 21 & 24). For the following reasons, Plaintiffs’ Motion is granted, 20 Defendant’s Cross-Motion is denied, and the matter is remanded for further proceedings.1 21 I. BACKGROUND 22 A. The Settlement Act 23 The Navajo–Hopi Settlement Act (the “Settlement Act”) authorized a court- 24 ordered partition of land previously referred to as the Joint Use Area (“JUA”)—occupied 25 by both Navajo and Hopi residents—into the Navajo Partitioned Lands (“NPL”) and the 26

27 1 Because it would not assist in resolution of the instant issues, the Court finds the pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed. 28 R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 Hopi Partitioned Lands (“HPL”). See Pub. L. No. 93-531, § 12, 88 Stat. 1716 (1974); 2 Clinton v. Babbitt, 180 F.3d 1081, 1084 (9th Cir. 1999). The Settlement Act created what 3 is now the ONHIR to disburse benefits to assist with the relocation of Navajo and Hopi 4 residents who then occupied land allocated to the other tribe. Bedoni v. Navajo-Hopi 5 Indian Relocation Comm’n, 878 F.2d 1119, 1121–22 (9th Cir. 1989). 6 B. Factual and Procedural Background 7 Plaintiffs are enrolled members of the Navajo Nation. (Doc. 1 at 4). They are also 8 siblings, each being born to George and Emily Bah Begay at some point between 1940 9 and 1958. (AR69).2 Plaintiffs allege that “their family maintained a traditional Navajo 10 ‘customary use area’ that spanned what became the HPL/NPL demarcation line.” (Doc. 1 11 at 6). Plaintiffs allege that “[t]he portion of that customary use area that extended onto 12 what became the HPL was the family’s summer camp, occupied from March or April 13 until the first frost, generally late October.” (Id.). Plaintiffs allege that the HPL summer 14 camp had a cornfield, a “shack house,” a tent, and livestock that they moved there every 15 summer. (Id.). Plaintiffs allege that they planted and harvested their HPL cornfield until 16 1976 at which time they were told to stop by Hopi personnel. (Id.). Based on these 17 allegations, Plaintiffs contend that they were legal residents of the HPL during the 18 requisite time period, and that they are entitled to relocation benefits. (Id. at 3). 19 In February and July 2010, Plaintiffs filed Applications for Relocation Benefits, 20 which were denied by ONHIR on February 13, 2010 and February 19, 2013.3 (Id. at 5; 21 see also AR17, 75, 164, 241, & 298). The ONHIR based its denials on the agency’s 22 finding that Plaintiffs and their parents “are listed in the Bureau of Indian Affairs’ 23 2 AR refers to the ONHIR Administrative Record, as filed on the docket and as 24 numbered by the parties (with preceding zeroes omitted). (See Doc. 12). 25 3 Specifically, Plaintiff Jackson applied on February 2, 2010, Plaintiffs Ruth 26 Begay and Lorraine Attakai applied on July 23, 2010, Plaintiff Ray applied on July 29, 27 2010, and Plaintiff Johnnie Begay applied on July 30, 2010. (Doc. 1 at 5). Plaintiff Jackson’s application was denied on February 13, 2010, and the remaining four 28 Plaintiffs’ applications were denied on February 19, 2013. (Id.). 1 [(“BIA”)] 1974–75 Enumeration of residents of the JUA as residing only on the [NPL].” 2 (Id.). With respect to Plaintiffs Ray, Jackson, and Ruth and Johnnie Begay, the ONHIR 3 denial letters additionally noted that their applications indicated that they resided outside 4 the Navajo Nation on December 22, 1974. (Id.). Plaintiffs filed appeals in March 2013, 5 (AR21, 79, 169, 245, & 303), and an Appeal Hearing (the “Hearing”) was held before an 6 Independent Hearing Officer (“IHO”) on February 19, 2016. (AR391–529 (“Transcript of 7 Proceedings”)). After the Hearing, the IHO denied Plaintiffs’ appeal and upheld the 8 ONHIR’s denial of all applications based on a finding that Plaintiffs were not HPL 9 residents at the time of the passage of the Settlement Act. (See the “Decision,” AR607– 10 15). On June 2, 2016, ONHIR issued Final Agency Action in Plaintiffs’ cases. (AR54, 11 114, 215, 274, & 352). On June 2, 2022, Plaintiffs initiated this action seeking judicial 12 review of the denial of relocation benefits. (Doc. 1). Between November 22, 2022, and 13 March 20, 2023, the parties submitted their briefing, with each requesting summary 14 judgment in their favor. (Docs. 16, 19, 21, & 24). 15 II. LEGAL STANDARDS 16 A. Summary Judgment 17 Generally, summary judgment should be granted when “there is no genuine 18 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 19 Fed. R. Civ. P. 56(a). When conducting judicial review of an administrative agency’s 20 action, “there are no disputed facts that the district court must resolve.” Occidental Eng’g 21 Co. v. Immigr. & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985). Rather, the 22 Court must “determine whether or not as a matter of law the evidence in the 23 administrative record permitted the agency to make the decision it did.” Id. Summary 24 judgment is therefore “an appropriate mechanism for deciding the legal question of 25 whether [an] agency could reasonably have found the facts as it did.” Id. at 770. 26 B. APA Standards of Review 27 The Court’s review of the IHO’s decision under the Settlement Act is governed by 28 the Administrative Procedure Act (“APA”). See Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 1 914 (9th Cir. 1995). Under the APA, the Court must uphold agency action unless it was 2 “arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported 3 by substantial evidence.” Bedoni, 878 F.2d at 1122. 4 An ONHIR decision satisfies the “arbitrary and capricious” standard if “the 5 agency examine[s] the relevant data and articulate[s] a satisfactory explanation for its 6 action, including a rational connection between the facts found and the choice made.” 7 Hopi Tribe, 46 F.3d at 914 (internal quotation marks omitted). This scope of review is 8 narrow, and the Court may not “substitute its judgment for that of the agency.” Id. 9 (internal quotation marks omitted). Still, a decision is arbitrary and capricious “if the 10 agency . . . entirely failed to consider an important aspect of the problem, offered an 11 explanation for its decision that runs counter to the evidence before the agency, or is so 12 implausible that it could not be ascribed to a difference in view or the product of agency 13 expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 14 463 U.S. 29, 43 (1983). Likewise, if an agency “fails to follow its own precedent or fails 15 to give a sufficient explanation for failing to do so,” its decision is arbitrary and 16 capricious. Andrzejewski v. Fed. Aviation Admin., 563 F.3d 796, 799 (9th Cir. 2009). 17 An agency’s decision satisfies the “substantial evidence” standard if it is supported 18 by “such relevant evidence that a reasonable mind might accept as adequate to support 19 the conclusion.” Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995). The standard 20 requires “more than a mere scintilla but less than a preponderance” of evidence. Id. The 21 IHO may “draw inferences logically flowing from the evidence.” Gallant v. Heckler, 753 22 F.2d 1450, 1453 (9th Cir. 1984). “Where evidence is susceptible of more than one 23 rational interpretation,” the IHO’s decision must be upheld. Id. 24 C. The Settlement Act and Associated Regulations 25 A Navajo applicant is eligible for benefits under the Settlement Act if he was a 26 legal resident of the HPL as of December 22, 1974 and was a head of household at that 27 time. 25 C.F.R. §§ 700.147(a), 700.69(c); Begay v. Off. of Navajo & Hopi Indian 28 Relocation, 305 F. Supp. 3d 1040, 1044 (D. Ariz. 2018). The applicant bears the burden 1 of proving both the residency and head-of-household elements. 25 C.F.R. § 700.147(b). 2 Only the residency element is at issue in this case, as the IHO’s decision—and the 3 parties’ briefing—does not address the head-of-household element. 4 Under the applicable regulations, determining an applicant’s residence “requires 5 an examination of a person’s intent to reside combined with manifestations of that 6 intent.” 49 Fed. Reg. 22,278; see also Charles v. Off. of Navajo & Hopi Indian 7 Relocation, 774 Fed. Appx. 389, 390 (9th Cir. 2019). Such manifestations of intent may 8 include ownership of livestock, ownership of improvements, grazing permits, livestock 9 sales receipts, homesite leases, public health records, medical records, school records, 10 military records, employment records, mailing address records, banking records, driver’s 11 license records, voting records, home ownership or rental off the JUA, census data, 12 Social Security records, marital records, court records, birth records, the JUA roster, and 13 any other relevant data. 49 Fed. Reg. 22, 278. “An individual who was, on December 22, 14 1974, away from the land partitioned to the Tribe of which he/she is not a member may 15 still be able to prove legal residency.” 49 Fed. Reg. 22,277. 16 III. DISCUSSION 17 A. Additional Documents Not in the Record 18 As an initial matter, the parties disagree on what documents the Court should 19 consider as part of the administrative record. Plaintiffs attach two exhibits to their Motion 20 for Summary Judgment (Docs. 16-1 & 16-2), which Defendant argues is improper 21 because they were not part of the administrative record. (Docs. 19 at 6–7 & 24 at 8–10). 22 “[T]he focal point for judicial review [under the APA] should be the 23 administrative record already in existence, not some new record made initially in the 24 reviewing court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The administrative record 25 consists of the documents compiled and submitted by the agency and also “documents 26 and materials directly or indirectly considered by agency decision-makers.” Thompson v. 27 U.S. Dep’t of Lab., 885 F.2d 551, 555 (9th Cir. 1989). Additionally, a district court may 28 consider documents outside of the administrative record in four “narrowly construed” 1 circumstances: when “(1) supplementation is necessary to determine if the agency has 2 considered all factors and explained its decision; (2) the agency relied on documents not 3 in the record; (3) supplementation is needed to explain technical terms or complex 4 subjects; or (4) plaintiffs have shown bad faith on the part of the agency.” Fence Creek 5 Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010). 6 Plaintiffs argue that Exhibit I (Doc. 16-1), which is a prior decision of the IHO, 7 should be considered “to show that in past decisions the IHO did not consider the 8 Enumeration to be absolutely determinative of residency as he did here.” (Doc. 21 at 10). 9 Because an agency must follow its own precedent or else explain any deviation, this 10 Court may consider prior ONHIR decisions to determine whether a decision is arbitrary 11 and capricious. See Torpey v. Off. of Navajo & Hopi Indian Relocation, No. CV-17- 12 08184-PCT-SMB, 2019 U.S. Dist. LEXIS 154168, at *9–10 (D. Ariz. Sept. 6, 2019). 13 However, previous decisions only serve this purpose if they carry precedential value in 14 the case at hand. See Whitehair v. Off. of Navajo & Hopi Indian Relocation, No. CV17- 15 08278-PCT-DGC, 2018 WL 6418665, at *3 (D. Ariz. Dec. 6, 2018). Accordingly, the 16 Court will consider Exhibit I only if it sets forth ONHIR policy or if it involves facts 17 indistinguishable from the instant case. See id. at *10. 18 The Court finds that the IHO Decision attached as Exhibit I (the “Bahe Decision”) 19 involves facts that are indistinguishable from the instant case. Both cases involved 20 applicants who resided on HPL land only during the summer and who were not listed as 21 HPL residents in the Enumeration. The Court finds the Bahe Decision to be necessary to 22 determine whether the IHO adequately explained its credibility and residency decisions 23 because it sheds light on how the agency has previously dealt with applicants in a similar 24 situation—that is, where the Enumeration does not list them, but they nonetheless offer 25 other evidence of their residency. Moreover, the Court will already be considering two 26 other prior IHO decisions—which are already included in the administrative record—for 27 the same reason. (See AR595–605). The Court finds the Bahe Decision similarly helpful 28 to these other two decisions and will consider it in this review. 1 Plaintiffs argue that Exhibit II (Doc. 16-2), which is an excerpt from a report 2 produced by ONHIR’s predecessor agency and presented to the United States Congress, 3 should be considered “to identify and plug holes in the administrative record.” (Doc. 21 4 at 10–11). Plaintiffs explain that this particular document has been previously accepted 5 by this Court under the second and third exceptions to supplement the administrative 6 record. (Id. at 10 (citing Tso v. Off. of Navajo & Hopi Indian Relocation, No. CV-17- 7 08183-PCT-JJT, 2019 WL 1877360, at *8 (D. Ariz. Apr. 26, 2019))). Defendant argues 8 that Exhibit II should not be considered because it “deals with NHIRC’s [ONHIR’s 9 predecessor agency] own enumeration list—not the [BIA]’s Enumeration, which is at 10 issue in this case. (Doc. 24 at 10). The Court is unpersuaded by this argument. See infra 11 n.6. As in Tso, the Court finds that consideration of Exhibit II is appropriate. 12 B. Denial of Relocation Benefits 13 As noted, only the residency element is at issue on this administrative review, as 14 the head-of-household element was not addressed in the IHO’s Decision nor in the 15 parties’ briefing. Thus, the Court will move forward under the assumption that Plaintiffs 16 had each achieved head-of-household status during the relevant time period. 17 With respect to the residency requirement, the Court first provides a summary of 18 the IHO’s conclusion that Plaintiffs were not HPL residents on December 22, 1974. The 19 IHO began by noting that Plaintiffs were born between 1940 and 1958, and that they 20 primarily lived in “the Teesto Chapter, south of the Jeddito Wash and west of Seba 21 Dalkai School, in an area partially partitioned for the use of the Hopi Indians.” (AR609). 22 The IHO recognized that the family had two camps—approximately 1.0 to 1.5 miles 23 apart—“that were part of a traditional use area, a winter home that was later partitioned 24 for the use of the Navajo Indians, and a cornfield that was later partitioned for the use of 25 the Hopi Indians.” (Id.). The IHO noted that the 1974–75 BIA Enumeration (the 26 “Enumeration”) listed the family as residing at two locations on the NPL and identified 27 several improvements at those locations. (AR609–10). In contrast, the Enumeration did 28 not identify any improvements for the family on the HPL. (AR610). The IHO recognized 1 Plaintiffs’ position that the family’s cornfield was located on the HPL and that it was 2 used through 1976, two years after the Settlement Act was passed. (Id.). The IHO noted 3 photographs submitted into the record that, according to Plaintiffs, were taken in 1973 4 and showed “family members standing or sitting in front of a shack . . . that the family 5 used at the HPL cornfield.” (Id.). The IHO also noted other photographs—taken in 6 2010—apparently showing the remnants of the shack. (AR610, 613). The IHO 7 recognized Plaintiffs’ contention that the family erected a tent near the shack each spring 8 and that the family owned 80 sheep which were “moved seasonally between the camps.” 9 (AR610). The IHO noted that the tent was not shown in any of the photographs and that 10 the shack was not listed in the Enumeration. (AR 610–11). Finally, the IHO noted that— 11 on the date the Settlement Act was passed—all of the Plaintiffs, except for Attakai, had 12 graduated from high school and were residing off the NPL and HPL, “attend[ing] post- 13 secondary school and/or employment.” (AR 611). 14 In a section of the Decision titled “Credibility Findings Related to All Applicants 15 and Witnesses,” the IHO states the following with respect to Plaintiffs and the four other 16 individuals4 who testified at the Hearing: 17 To the extent that any of the applicants testified that they were legal residents of any area of Teesto Chapter that was 18 partitioned for the use of the Hopi Indians as part of a customary use area, as of December 22, 1974, that testimony 19 is not credible. 20 To the extent that any of the applicants claim that the BIA 21 enumeration was incomplete, that testimony is not credible. 22 To the extent that any of applicants’ witnesses support the use of the cornfield beyond December 22, 1974, that testimony is 23 not credible. 24 (Id. (emphasis added)). The IHO supported these credibility findings—which, in effect, 25 amounted to the IHO’s ultimate conclusion on the residency issue—by pointing to the 26 27 4 The four other individuals who testified at the Hearing were Ray Jodie, Thelma 28 Polacca, Levi Biggambler, and Margaret Nellie Nez. (Doc. 15 at 18–22); (AR483–520). 1 Enumeration’s findings and “serious credibility question[s]” surrounding the photographs 2 submitted by Plaintiffs. (AR 613–14). 3 With respect to the photographs allegedly taken in 1973 at the HPL cornfield, the 4 IHO recognized that the short-sleeved shirts worn by the children was somewhat 5 supportive of Plaintiffs’ position that the photographs were taken during the summer. 6 (AR614). The IHO also recognized that the photographs showed that a shack existed at 7 the time they were taken. (Id.). However, the IHO found that the photographs’ credibility 8 was undermined in two ways. (Id.). First, the claimed 1973 date of the photographs was 9 questionable because the photographs depicted Plaintiffs as children, and all of the 10 Plaintiffs would have been between 15 and 33 years of age by 1973. (Id.). Second, the 11 IHO noted that—unlike other pictures submitted from 1968—the 1973 photographs did 12 not show growing corn, undermining Plaintiffs’ claim that the cornfield was still in use at 13 the time the Settlement Act was passed in 1974. (Id.). 14 With respect to the Enumeration, the IHO first noted that the family was 15 “enumerated at [their] NPL home” and that the BIA “did not include a cornfield or any 16 structures on HPL as being owned by [Plaintiffs’] parents.” (AR613). The IHO found this 17 to be strong evidence against Plaintiffs’ position because it would have been “impossible 18 [for the BIA] to overlook” the existence of the cornfield, given its size, location (just a 19 “mere mile” from the family’s NPL home), and the fact that the family claimed to have 20 livestock there. (AR 613–14). Second, the IHO noted that—as part of the Enumeration— 21 Plaintiffs’ father was interviewed two separate times, once in February 1975 and again in 22 May 1975. (Id.). The IHO noted that each interview took place at the family’s NPL home 23 rather than at the HPL cornfield, and that the May 1975 interview was particularly 24 damaging to Plaintiffs’ position given that May was “a time when he would have been 25 expected to be at the cornfield/summer camp (especially if the family’s sheep was moved 26 seasonally).” (Id.). 27 In sum, the IHO found “too many objective and circumstantial indicia which do 28 not support [Plaintiffs’] claim about a working cornfield as of the date of passage of the 1 Act, including the enumeration, photographs . . ., credibility of the witnesses, and 2 interviews of [Plaintiffs’] father by the BIA.” (AR614–15). The IHO found that Plaintiffs 3 failed to “overcome the objective evidence that exists in this appeal” and that Plaintiffs’ 4 “testimony shows that the applicants cultivated a well-planned story that is at odds with 5 the objective evidence.” (AR615). The IHO denied Plaintiffs’ appeal, concluding that 6 “[n]one of the [Plaintiffs] was an HPL resident as part of a customary use area at the time 7 of passage of the Act and none of them is eligible to receive relocation benefits.” (Id.). 8 In seeking this Court’s review, Plaintiffs argue that the IHO’s conclusion that they 9 were not HPL residents on and after December 22, 1974, was arbitrary, capricious, and 10 unsupported by substantial evidence. First, Plaintiffs argue that the IHO’s credibility 11 determinations with respect to the testimony of Plaintiffs and four other Hearing 12 witnesses were “facially deficient, stated without evaluation of individual testimony, and 13 absent the ‘specific and cogent reasons’ for an adverse credibility determination to be 14 based upon substantial evidence under the APA and Ninth Circuit precedent.” (Doc. 16 at 15 5). Second, Plaintiffs argue that the IHO failed to objectively evaluate all the record 16 evidence in reaching his conclusion. (Id. at 9–16). The Court need only address the first 17 argument. See Bitah v. Off. of Navajo & Hopi Indian Relocation, No. CV-20-08323-PCT- 18 JZB, 2022 WL 1751836, at *6, *10 (D. Ariz. Mar. 30, 2022) (“Because the Court will 19 remand this action, it makes no conclusions as to the remaining arguments.”). 20 “When the decision of an [IHO] rests on a negative credibility evaluation, the 21 [IHO] must make findings on the record and must support those findings by pointing to 22 substantial evidence on the record.” Ceguerra v. Sec’y of Health & Hum. Servs., 933 F.2d 23 735, 738 (9th Cir. 1991) (citation omitted); see also Hossain v. Immigr. & Naturalization 24 Serv., 7 Fed. Appx. 760, 760 (9th Cir. 2001) (“We review credibility determinations for 25 substantial evidence and defer to credibility findings that are fairly supported by the 26 record and supported by specific and cogent reasons for the rejection of the testimony.”). 27 The Ninth Circuit has further explained that “if an [IHO] has grounds for disbelieving 28 material testimony, it is both reasonable and desirable to require the ALJ to articulate 1 those grounds in the original decision.” Ceguerra, 933 F.2d at 740 (citing Varney v. Sec’y 2 of Health & Hum. Servs., 859 F.2d 1396 (9th Cir. 1988)). “The IHO may set forward 3 [credibility reasoning] either in the formal credibility determination or in the body of the 4 decision.” Begay v. Off. of Navajo & Hopi Indian Relocation, 2021 WL 4247919, No. 5 CV-20-08102-PCT-SMB, at *4 (D. Ariz. Sept. 17, 2021) (citation omitted). 6 An IHO’s credibility findings are typically “granted substantial deference by 7 reviewing courts.” De Valle v. Immigr. & Naturalization Serv., 901 F.2d 787, 792 (9th 8 Cir. 1990) (citations omitted). This is because it is the IHO who is “in a position to 9 observe [a witness]’s tone and demeanor, to explore inconsistences in testimony, and to 10 apply workable and consistent standards in the evaluation of testimonial evidence.” 11 Sarvia-Quintanilla v. U.S. Immigr. & Naturalization Serv., 767 F.2d 1387, 1395 (9th Cir. 12 1985). As the Ninth Circuit has put it, the IHO is thus “uniquely qualified to decide 13 whether a [witness]’s testimony has about it the ring of truth.” Id. That said, the fact 14 remains that “an adverse credibility finding must be supported by specific, cogent 15 reasons, and cannot be based on speculation and conjecture.” Shire v. Ashcroft, 388 F.3d 16 1288, 1295 (9th Cir. 2004). 17 The Court finds that the IHO, in relying solely on the photographs’ unreliability 18 and the Enumeration’s findings, failed to support his credibility findings with substantial 19 evidence. With respect to the photographs, the IHO observed that the photographs show 20 Plaintiffs as young children; in 1973, however, Plaintiffs were all between the ages of 15 21 and 33. (Id.). Thus, the IHO found that “[a] serious credibility question exists” as to 22 whether they were actually taken in 1973 as Plaintiffs claimed.5 (AR614). This 23 5 The IHO also observed that the photographs do not depict a growing cornfield or 24 the tent that apparently existed on the property. (AR614). Of course, this observation is 25 meaningless given the uncertainty surrounding the exact dates the photographs were taken. If the photographs were taken in the early summer, for example, the absence of a 26 growing cornfield could merely be the result of the corn having not grown yet. The 27 absence of a tent could be for the simple reason that it had not yet been erected. Moreover, given that even the year the photographs were taken is uncertain, it is 28 impossible to draw any relevant conclusions from the fact that the photographs do not 1 observation speaks only to the reliability of the photographs as evidence. It says very 2 little, if anything, about whether the testimony presented by Plaintiffs at the Hearing was 3 credible. It may very well be true that the photographs were not taken in 1973 and that 4 they should not be given any significant weight in the residency analysis. At the same 5 time, Plaintiffs’ testimony—that they lived at the HPL cornfield during the summers 6 throughout the relevant time period—could still be true, regardless of the photographs. 7 Although Plaintiffs’ testimony about the photographs—e.g., Plaintiff Jackson’s testimony 8 that “some of the older photographs were taken around 1973,” (Doc. 20 at 24)—may lose 9 credibility, the IHO offered no reason why all of Plaintiffs’ testimony about their HPL 10 residency should be discredited merely because the photographs could not be reliably 11 dated. At best, the IHO demonstrated that it is impossible to know the dates of the 12 photographs and that they should therefore be entirely ignored as evidence. The Court 13 finds that the unreliability of the photographs is not a specific and cogent reason to 14 support the IHO’s credibility findings. 15 Aside from the unreliability of the photographs, the IHO’s credibility findings are 16 based solely on the Enumeration. As noted above, the Enumeration listed Plaintiffs as 17 living on the NPL. It did not list any HPL improvements for the family and failed to 18 mention the cornfield or the shack despite their close proximity. Further, the creation of 19 the Enumeration involved two separate interviews of Plaintiffs’ father; both interviews 20 took place on the NPL, including one interview in May 1975 when their father would 21 have been expected to be at the HPL cornfield. Defendant contends that these facts from 22 the Enumeration amounted to specific and cogent reasons to discredit the testimony of all 23 six Plaintiffs and the other four individuals who testified at the Hearing. (Doc. 19 at 12). 24 The Court is unpersuaded. Including Plaintiffs, ten separate individuals testified at 25 the Hearing that Plaintiffs lived on the HPL during the summer throughout the relevant 26 time period. Aside from a few small differences in the details, their testimony appears to 27

28 show corn or a tent. 1 be consistent. The IHO failed to meaningfully explain how the Enumeration, on its own, 2 was sufficient to entirely undermine the credibility of such a large amount of consistent 3 testimony from individuals who had direct knowledge of Plaintiffs’ whereabouts in the 4 early 1970s. The fact that the Enumeration did not list Plaintiffs as HPL residents does 5 not necessarily mean that their testimony—and the testimony of the other four 6 witnesses—was untrue. Indeed, Plaintiffs cite to at least three separate ONHIR decisions 7 in which an IHO granted relocation benefits to an applicant even though the applicant 8 was not recorded in the Enumeration as being a resident of the relevant HPL or NPL 9 land. (See Doc. 16 at 10–11; see also Doc. 16-1 at 5 (IHO finding that “standing alone, 10 the roster [BIA Enumeration] cannot be the sole source upon which applicant could be 11 disqualified from receiving relocation benefits and assistance”)). This is because the 12 Enumeration was, in many ways, unreliable. (See Doc. 16-2 at 6 (ONHIR report 13 discussing why the 1974–75 BIA Enumeration was limited in its usefulness and generally 14 unreliable)). Courts have generally recognized this unreliability by finding that the 15 Enumeration is not, on its own, sufficient evidence to establish residency or non- 16 residency. See Walker v. Navajo-Hopi Indian Relocation Comm’n, 728 F.2d 1276, 1279 17 (9th Cir. 1984) (“The [ONHIR] has always taken the position that the enumeration list is 18 not conclusive as to eligibility.”); Begay, 305 F. Supp. 3d at 1045 (“[P]recedent does 19 establish that the BIA enumeration alone cannot establish residence, but it may be used as 20 prima facie evidence of residency that Plaintiff then has the burden of disproving.”).6 21 In this case, the IHO essentially treated the Enumeration as conclusive evidence of

23 6 Defendant argues that Walker should not be relied upon in part because the ONHIR and BIA Enumerations are distinct. The Court is unpersuaded. Although the 24 ONHIR Enumeration was distinct from and conducted a few years after the BIA 25 Enumeration, its purpose was the same. Both Enumerations sought to approximate the number of people affected by the Settlement Act so that relocation costs could be 26 estimated. See Walker, 728 F.2d at 1279; see also Begay, 305 F. Supp. 3d at 1045, n.4 27 (“The BIA performed an ‘Enumeration’ or census of the people and improvements to land located within the former [JUA] that became HPL and NPL in 1974 and 1975. The 28 results of that enumeration are compiled in the BIA Roster.”). 1 Plaintiffs’ residency because he failed to meaningfully consider whether Plaintiffs had 2 met their burden of disproving the Enumeration. Plaintiffs offered a fair amount of 3 evidence to support their position. As mentioned, Plaintiffs put forth the testimony of ten 4 separate individuals who consistently testified that Plaintiffs resided on HPL land during 5 the summer. The IHO dismissed such testimony collectively, entirely avoiding any 6 consideration of the details contained therein. Plaintiffs also offered maps identifying the 7 location of their two homesites and three supporting statements (two declarations and a 8 notarized statement) from individuals who corroborated Plaintiffs’ testimony. The IHO 9 entirely failed to consider this evidence in his Decision, let alone in supporting his 10 credibility determinations. Rather, the IHO found the Enumeration to be conclusive on 11 the credibility issue—and, in essence, conclusive on the residency issue as a whole— 12 reasoning that “one may safely infer that the enumerators were not told about a cornfield 13 with a shack a mere mile from applicants’ family home” and that the cornfield and 14 livestock “would have been impossible to overlook.” (AR613–14). Such inferences are 15 entirely conclusory and fail to meaningfully challenge the significant testimony and other 16 evidence put forth by Plaintiffs. Likewise, the IHO’s reference to the two interviews 17 conducted with Plaintiffs’ father fails to meaningfully rebut Plaintiffs’ evidence or 18 otherwise justify complete reliance on the Enumeration. The February 1975 interview on 19 NPL land can be ignored entirely, as that was during the winter, well before Plaintiffs’ 20 father would have even been at the HPL cornfield. The May 1975 interview, on the other 21 hand, shows only that Plaintiffs’ father was at the NPL homesite on that day. As Plaintiff 22 Jackson testified, he may have been there simply to check on Plaintiffs’ grandparents, or 23 to get tools and supplies for the family’s work at the HPL cornfield. (AR423–24). After 24 all, the two homesites were only 1.0 to 1.5 miles apart—a mere twenty-minute walk. 25 (AR422). In sum, the Court finds that the IHO failed to explain how the Enumeration, on 26 its own, amounted to a specific and cogent reason to entirely undermine the credibility of 27 Plaintiffs and the other four individuals. 28 In essence, the IHO based his benefits decision entirely on the Enumeration. As 1 noted above, the IHO’s Decision did not delve into the specifics of any of the testimony 2 offered at the Hearing by Plaintiffs; rather, the Decision referred to the testimony only 3 collectively and rejected it as not credible. Likewise, the Decision made no reference to 4 the other evidence offered by Plaintiffs, such as the maps and the supporting declarations 5 and notarized statement. Instead, the IHO only addressed three categories of evidence in 6 his Decision: (i) the Hearing testimony offered by Plaintiffs, (ii) the photographs, and (iii) 7 the Enumeration and its underlying facts. Given the complete uncertainty surrounding the 8 dates the photographs were taken, it was reasonable for the IHO to ignore them entirely. 9 This left the IHO with only the testimony and the Enumeration to consider. The 10 testimony was consistent and strongly supportive of Plaintiffs’ claim to HPL residency. 11 The Enumeration, on the other hand, constituted prima facie evidence of Plaintiffs’ non- 12 HPL residency. Faced with this competing evidence, the IHO simply chose to follow the 13 Enumeration and to discount the testimony as not credible. The IHO offered no 14 meaningful explanation for why the Enumeration was given so much weight in 15 comparison to the testimony. 16 In sum, the Court finds that the IHO failed to support his denial of benefits with 17 substantial evidence because he rejected as “not credible” all of Plaintiffs’ testimony 18 related to their alleged HPL residency and because he based this negative credibility 19 determination—in effect, the entire benefits decision—solely on the Enumeration. See 20 Begay, 305 F. Supp. 3d at 1045 (“[P]recedent does establish that the BIA enumeration 21 alone cannot establish residence.”). Given the IHO’s failure to satisfy the substantial 22 evidence standard with respect to the credibility determination and the residency issue, 23 the Court cannot uphold the IHO’s Decision. Whether benefits should ultimately be 24 awarded, however, remains with the IHO. Open questions remain as to the credibility of 25 the testimony from Plaintiffs and the other four individuals who testified at the Hearing, 26 as well as to whether Plaintiffs satisfied the residency requirement based on all of the 27 evidence in the record. The Court will remand for a decision consistent with this Order. 28 /// 1 Accordingly, 2 IT IS ORDERED that Plaintiffs’ Motion for Summary Judgment (Doc. 16) is 3 | granted. The matter is remanded for further proceedings consistent with this Order. 4 IT IS FURTHER ORDERED that Defendant’s Cross-Motion for Summary 5 | Judgment (Doc. 19) is denied. 6 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in 7 | favor of Plaintiffs and terminate this action. 8 Dated this 25th day of July, 2023. 9

ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28