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Tso v. Office of Navajo and Hopi Indian Relocation

United States District Court, D. Arizona

April 26, 2019

Reed Tso, Plaintiff,
v.
Office of Navajo and Hopi Indian Relocation, Defendant.

          ORDER

         At 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.

         I. BACKGROUND

         Plaintiff 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, 73, 82.)

         On July 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.)

         The IHO 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.)

         On 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.

         II. LEGAL STANDARDS

         A. Summary Judgment

         Under 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).

         When 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).

         B. Judicial Review of an Agency Decision

         Although 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).

         A court 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 made.” Id.

         Alternatively, 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).

         In 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. 1971)).

         C. Relocation Benefits Under the Settlement Act

         In 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.

         An 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.[1] 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).[2] 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 ...


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