United States District Court, D. Arizona
Larry K. Begay, Administrator of the Estate of Charles Begay, Plaintiff,
Office of Navajo and Hopi Indian Relocation, an administrative agency of the United States, Defendant.
A. Teilborg Senior United States District Judge
before the Court are Plaintiff's Motion for Summary
Judgment (Doc. 35) and Defendants' Cross-Motion for
Summary Judgment (Doc. 37). The Court now rules on the
March 4, 2017, Plaintiff filed the pending Motion for Summary
Judgment (Doc. 35). Defendant then filed a Response and
Cross-Motion for Summary Judgment on April 3, 2017 (Doc. 37).
Plaintiff filed a Response to Defendant's Cross-Motion
and Reply on May 3, 2017 (Doc. 39) and Defendant filed a
Reply on May 16, 2017 (Doc. 41). Here, Plaintiff alleges that
the Independent Hearing Officer (“IHO”) erred in
denying his claim for relocation assistant benefits provided
by the Navajo-Hopi Settlement Act, Pub. L. 93-531, § 12,
December 22, 1974, 88 Stat. 1716 (the “Settlement
The Settlement Act
Settlement Act attempted to resolve an inter-tribal conflict
between the Hopi and Navajo Indians by authorizing a
court-ordered partition of land that was then-jointly held by
the two tribes. See Bedoni v. Navajo-Hopi Indian
Relocation Comm'n, 878 F.2d 1119, 1121-22 (9th Cir.
1989). The Settlement Act further created the predecessor to
the Office of Navajo and Hopi Indian Relocation (ONHIR) to
provide services and benefits to relocate individuals who
resided on land allocated to the other tribe at that time.
See Laughter v. Office of Navajo & Hopi Indian
Relocation, CV-16-08196-PCT-DLR, 2017 WL 2806841, at *1
(D. Ariz. June 29, 2017) (citing Id.). To be
eligible for benefits under the Settlement Act, a Navajo
applicant must prove that he was a legal resident of the Hopi
Partitioned Land (“HPL”) as of December 22, 1974
and that he was the head of household at that time. See
id. The applicant bears the burden of proving legal
residence and head of household status. See id.
(citing 25 C.F.R. § 700.147 (1986)).
Facts and Procedural History
is an enrolled member of the Navajo Nation who applied for
relocation benefits under the Settlement Act on April 28,
2005. (Plaintiff's Statement of Facts in Support of
Motion for Summary Judgment (“PSOF”), Doc. 36 at
¶¶ 1, 3; Defendant's Controverting Statement of
Facts (“DCSOF”), Doc. 38 at at ¶¶ 1, 3;
Certified Administrative Record (“CAR”) 23). The
application was denied on October 11, 2005, in part, because
Plaintiff was found not to be a legal resident of the HPL as
of December 22, 1974. (PSOF at ¶¶ 4; DCSOF at
¶¶ 4; CAR 27). Plaintiff appealed, and a hearing
before an IHO was held on February 22, 2008. (PSOF at
¶¶ 7; DCSOF at ¶¶ 7; CAR 35). On April
28, 2008, the IHO issued his decision denying Plaintiff's
appeal and affirming Defendant's denial of benefits.
(PSOF at ¶¶ 9; DCSOF at ¶¶ 9; CAR 37).
Defendant, however, did not take final agency action on
Plaintiff's application at that time. (PSOF at
¶¶ 13; DCSOF at ¶¶ 13; CAR 42).
January 6, 2010, Defendant notified the IHO that
Plaintiff's case was being remanded for further
proceedings due to Defendant's revision of its
eligibility standards. (PSOF at ¶¶ 20; DCSOF at
¶¶ 20; CAR 47). Plaintiff conducted a field
investigation of Plaintiff's land on June 24, 2015, the
results of which Plaintiff later presented as evidence at his
remand hearing on April 1, 2016. (PSOF at ¶¶ 22;
DCSOF at ¶¶ 22; CAR 50, 53). Plaintiff, his sons,
Larry and Nelson Begay, and his daughter-in-law, Raelene
Begay testified at the remand hearing. (PSOF at ¶¶
25; DCSOF at ¶¶ 25; CAR 53). There, Plaintiff
argued that he maintained one homesite-Whitewater-located on
Navajo Partitioned Land (“NPL”) and another-Old
Branch-located on HPL as of December 22, 1974. (PSOF at
¶¶ 62; DCSOF at ¶¶ 62; CAR 53, 56).
Plaintiff and his witnesses testified that Plaintiff planted
a cornfield at Old Branch and resided there to some extent in
the spring planting season, thus allegedly establishing the
land as part of Plaintiff's residence as a
“traditional use area” on HPL. (Id.). In
opposition to Plaintiff's argument, Defendant presented
undisputed evidence that Plaintiff was enumerated by the
Bureau of Indian Affairs (“BIA”) Roster only on
the NPL at Whitewater and was not enumerated on the HPL at
Old Branch. (PSOF at ¶¶ 30; DCSOF at ¶¶
30; CAR 53). Further, none of Plaintiff's claimed
improvements to the land or his purported residence at Old
Branch were documented in the BIA's enumerated
20, 2016, the IHO issued his decision again denying
Plaintiff's appeal on remand. (PSOF at ¶¶ 31;
DCSOF at ¶¶ 31; CAR 56). In support of this
conclusion, the IHO relied-at least in part-on the BIA
enumeration and reasoned that BIA enumerators would have had
to be “blind to their surroundings” to fail to
identify Plaintiff's purported residence at Old Branch if
there was one in use at the time of the enumeration. (PSOF at
¶¶ 31; DCSOF at ¶¶ 31; CAR 56). The IHO
found that Plaintiff's testimony, which contradicted the
BIA enumeration, had “limited” credibility
because he failed to recall dates of certain events. (PSOF at
¶¶ 65; DCSOF at ¶¶ 65; CAR 56). The IHO
also found that Larry and Nelson Begay's testimony
“may be credible” and that Raelene Begay's
testimony “lacked” credibility because she was
not in the area in 1974. (Id.). Defendant issued its
Notice of Final Agency Action on June 13, 2016, affirming the
IHO's decision that Plaintiff was ineligible for
benefits. (PSOF at ¶¶ 32; DCSOF at ¶¶ 32;
CAR 57). Plaintiff then filed his Complaint on October 6,
2016 seeking judicial review of Defendant's
administrative decision that he is not entitled to relocation
benefits under the Settlement Act. (Doc. 1).
STANDARD OF REVIEW
Administrative Procedure Act (“APA”) governs
judicial review of agency decisions under the Settlement Act.
Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th
Cir. 1995). The APA provides that the Court may set aside an
administrative agency's decision only if that decision
was “arbitrary, capricious, an abuse of discretion, not
in accordance with law, or unsupported by substantial
evidence.” Bedoni v. Navajo-Hopi Relocation
Comm'n, 878 F.2d 1119, 1122 (9th Cir. 1989) (citing
5 U.S.C. § 706(2)(A), (E) (1982); Walker v.
NHIRC, 728 F.2d 1276, 1278 (9th Cir. 1984)).
“Substantial evidence is more than a mere scintilla,
but less than a preponderance.” Orteza v.
Shalala, 50 F.3d 748, 749 (9th Cir. 1995). Under this
standard, the Court applies a narrow and highly deferential
standard of review:
To make this finding the [C]ourt must consider whether the
decision was based on a consideration of the relevant factors
and whether there has been a clear error of judgment.
Although this inquiry into the facts is to be searching and
careful, the ultimate standard of review is a narrow one. The
[C]ourt is not empowered to substitute its judgment for that
of the agency.
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971), abrogated on other grounds by
Califano v. Sanders, 430 U.S. 99 (1977) (citations
summary judgment in an original district court proceeding,
the function of the Court in a review of an administrative
proceeding “is to determine whether or not as a matter
of law the evidence in the administrative record permitted
the agency to make the decision it did.” Occidental
Engineering Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir.
1985). “Where evidence is susceptible of more than one
rational interpretation, it is the [IHO's] conclusion
which must be upheld; and in reaching his findings, the [IHO]
is entitled to draw inferences logically flowing from the
evidence.” Gallant v. Heckler, 753 F.2d 1450,
1453 (1984) (citations omitted). Ultimately, the Court must
affirm if the agency “considered the relevant factors
and articulated a rational connection between the facts found
and the choices ...