Larry Begay v. Onhir ( 2019 )

NOT FOR PUBLICATION FILED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.
4