United States District Court, D. Arizona
issue is Plaintiff's Motion for Summary Judgment (Doc.
31, Mot.), to which Defendant, Office of Navajo and Hopi
Indian Relocation (“ONHIR”), an independent
federal agency, filed a Response, Cross-Motion for Summary
Judgment, and Objection to Extra-Record Documents (Doc. 35,
Cross-Mot.) For the reasons that follow, the Court denies
Plaintiff's Motion for Summary Judgment and grants
Defendant's Cross-Motion for Summary Judgment.
Reed Tso is an enrolled member of the Navajo Nation who
applied to the ONHIR for relocation benefits under the Navajo
and Hopi Land Settlement Act of 1974 (“Settlement
Act”), 25 U.S.C. § 640d et seq., on
August 31, 2010. (Doc. 18, R. at 37-42.) Plaintiff's
application was denied by ONHIR by letter dated July 10,
2014, because ONHIR found that, on December 22, 1974, he was
not a legal resident of the Joint Use Area
(“JUA”) partitioned to the Hopi Tribe as required
by the Settlement Act. (R. at 48-51.) According to the
regulations, an applicant must establish his legal residency
on December 22, 1974, the date of enactment of the Settlement
Act. 25 C.F.R. § 700.147. Plaintiff timely requested a
hearing, which was held on May 20, 2016, in front of an
Independent Hearing Officer (“IHO”). (R. at 56,
29, 2016, the IHO issued a decision denying Plaintiff's
application for relocation benefits. (R. at 179-85.) The IHO
concluded that, on December 22, 1974, Plaintiff was not a
legal resident of Blue Canyon, an area within the Hopi
Partition Land, but rather a legal resident of the State of
California. (R. at 182-83, 184.) And prior to moving to
California to attend Chabot College in August 1974, Plaintiff
was a legal resident of Tuba City, Arizona, making Plaintiff
ineligible for relocation benefits. (R. at 182-83.)
considered the following facts in concluding that Plaintiff
was not a legal resident of Blue Canyon on December 22, 1974:
Plaintiff “regarded Tuba City as his
‘hometown;'” Plaintiff “joined the Tuba
City Chapter in 1973;” Plaintiff married a woman from
Tuba City and the couple's children were born there;
Plaintiff “asserted that Blue Canyon was a summer
home;” Plaintiff “testified that the livestock
[in Blue Canyon] were cared for by his uncles;” and
Plaintiff made “one return visit in December
1974” to Tuba City and Blue Canyon, each for a brief
period of time. (R. at 183-84.) The IHO also concluded that
any visits to the Blue Canyon area in 1973 or 1974 were
“primarily social and incidental to [Plaintiff's]
real residence in Tuba City until he moved to California in
the fall of 1974.” (R. at 184.) The IHO concluded that
the testimony of Plaintiff and his two siblings about
Plaintiff's “extensive visitation to Blue Canyon
while applicant was away at college [are] neither believable
or credible.” (R. at 184.) The IHO, therefore, found
that Plaintiff did not establish having substantial and
recurring contacts with the Blue Canyon area while he was
away at college in California. (R. at 184.)
August 12, 2017, Plaintiff filed the instant action for
judicial review pursuant to the Settlement Act, 25 U.S.C.
§ 640d-14(g), and the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et. seq.
(Doc. 1, Compl.) Plaintiff moved for Summary Judgment, and
Defendant responded with a Cross-Motion for Summary Judgment.
Rule 56(c) of the Federal Rules of Civil Procedure, summary
judgment is appropriate when: (1) the movant shows that there
is no genuine dispute as to any material fact; and (2) after
viewing the evidence most favorably to the non-moving party,
the movant is entitled to prevail as a matter of law.
Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am.,
815 F.2d 1285, 1288-89 (9th Cir. 1987).
reviewing agency action under the APA, there are no disputed
facts that a district court must resolve. Occidental
Engineering Co. v. I.N.S., 753 F.2d 766, 769 (9th Cir.
1985). Instead, the administrative agency-not the court-is
the fact-finder. Id. When reviewing agency action,
“the function of the district court 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.” Id. Thus, “summary
judgment is an appropriate mechanism for deciding the legal
question of whether the agency could reasonably have found
the facts as it did.” Id. at 770. For judicial
review of agency action, the court's focal point is the
administrative record already in existence. Camp v.
Pitts, 411 U.S. 138, 142 (1973) (holding that the
administrative record may require supplementation by the
reviewing court if it is incomplete). As a general rule, the
court cannot review an issue that the plaintiff failed to
raise before the administrative tribunal. Reid v.
Engen, 765 F.2d 1457, 1460 (9th Cir. 1985).
Judicial Review of an Agency Decision
judicial review under the APA must be searching and careful,
a court's role remains narrow. Mt. Graham Red
Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993).
Under this narrow and deferential standard, the court cannot
substitute its judgment over the agency's, especially
where the “challenged decision implicates substantial
agency expertise.” Ninilchik Traditional Council v.
U.S., 227 F.3d 1186, 1194 (9th Cir. 2000). When
reviewing agency action under the APA, the court may reverse
or set aside the action if the court finds that that agency
action was “arbitrary, capricious, an abuse of
discretion, not in accordance with law, or unsupported by
substantial evidence[.]” 5 U.S.C. § 706(2)(a),
(e); Bedoni v. Navajo-Hopi Indian Relocation
Comm'n, 878 F.2d 1119, 1122 (9th Cir. 1989).
will find an agency's decision arbitrary and capricious
“only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an
important aspect of the problem, or offered an explanation
that runs counter to the evidence before the agency or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Gardner
v. U.S. Bureau of Land Mgmt., 638 F.3d 1217, 1224 (9th
Cir. 2011). ONHIR's action will be upheld “if the
agency considered the relevant factors and articulated a
rational connection between the facts found and the choices
a court may overturn an agency decision under the abuse of
discretion standard if the IHO failed to justify his or her
decision. “[A]n agency must cogently explain why it has
exercised its discretion in a given manner[.]”
Motor Vehicle Mfrs. Ass'n of U.S., Inc., 463
U.S. 29, 48 (1983). The agency must provide findings and an
analysis justifying the decision made. Id. (citing
Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 167 (1962)). Agency decisions must also be
supported by substantial evidence. “Substantial
evidence is more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
De la Fuente v. Fed. Deposit Ins. Corp., 332 F.3d
1208, 1220 (9th Cir. 2003) (citation omitted).
other words, an agency's decision need only be “a
reasonable, not the best or most reasonable, decision.”
Nat'l Wildlife Fed'n v. Burford, 871 F.2d
849, 855 (9th Cir. 1989). The IHO's decision must be
upheld “[w]here evidence is susceptible of more than
one rational interpretation[.]” Sample v.
Scheweiker, 694 F.2d 639, 642 (9th Cir. 1982) (citing
Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir.
Relocation Benefits Under the Settlement Act
1974, Congress enacted the Navajo and Hopi Land Settlement
Act, Pub. L. No. 93-531, § 12, 88 Stat. 1718, which
authorized the partition of the Joint Use Area between the
Hopi and the Navajo Tribes, resulting in the Hopi Partition
Land (“HPL”) and the Navajo Partition Land
(“NPL”). 25 U.S.C. § 640d et seq.
The Settlement Act ordered members from these two tribes to
relocate to the land partitioned to their respective tribal
affiliation. Id. § 640d-13(a). The Act also
authorized and created a benefit program to compensate those
people who were forced to abandon their homes and relocate to
a partitioned area. 25 U.S.C. § 640d-13(a),
14(b)(1)-(2). The Act conferred jurisdiction to the United
States District Court for the District of Arizona to review
appeals from any eligibility determinations made by the
independent agency, now known as ONHIR, created by the Act to
compensate relocated people. 25 U.S.C. § 640d-14.
applicant for relocation benefits bears the burden of
establishing that he or she was a head of household as of
July 7, 1986, 25 C.F.R. § 700.147, and was a legal
resident of the Hopi Partitioned Land (“HPL”) on
December 22, 1974-the date of the Settlement Act's
enactment, id. § 700.97. A 1984 change to
the Agency's regulations defines the term
“residence” as the “legal meaning . . .
which requires an examination of a person's intent to
reside combined with manifestations of that intent.” 49
Fed. Reg. 22, 277-78 (May 29, 1984). The final rule provides a
list of factors that ONHIR may consider when assessing legal
residency, including: ownership of livestock, ownership of
improvements, grazing permits, home-site leases, public
health records, medical and hospital records, school records,
employment records, mailing address records, bank records,
drivers license records, tribal and county voting records,
homeownership or ...