Rico et al v. Office of Navajo and Hopi Indian Relocation

Filing 40

ORDER - IT IS ORDERED that ONHIR's motion to remand the case (Doc. 21 ) isGRANTED. This matter shall be remanded to ONHIR's Executive Director for adetermination pursuant to ONHIR's Management Manual § 1714.3. IT IS FURTHER ORDERED that Plaintiffs' motion to stay (Doc. 38 ) is DENIED. The Clerk of the Court is directed to terminate this case without further order of the Court. (See document for complete details). Signed by Judge Douglas L Rayes on 7/30/18. (SLQ)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Sylvia Rico, et al.,
Plaintiffs,

10
11

ORDER

v.

12

No. CV-17-08122-PCT-DLR

Office of Navajo and Hopi Indian
Relocation, an administrative agency of the
United States,

13
14

Defendant.

15
16

Plaintiffs Sylvia Rico and Leroy Willie, as representatives of the estates of Edith

17

Willie and Julia Willie, seek judicial review of the administrative decision by Defendant

18

Office of Navajo and Hopi Indian Relocation (“ONHIR”) denying Plaintiffs’ relocation

19

benefits under the Navajo-Hopi Settlement Act. (Doc. 1.) Before the court is ONHIR’s

20

motion to dismiss or, alternatively, motion for remand, which is fully briefed. (Docs. 21,

21

26, 27.) The court heard oral argument on July 13, 2018.

22

Following oral argument, Plaintiffs submitted a post-argument brief requesting the

23

Court stay the matter if it decided to remand for further agency action.1 (Doc. 38 at 2.)

24

This matter also is fully briefed. (Doc. 39.) For reasons stated below, ONHIR’s motion

25

to remand is granted and Plaintiffs’ post-argument motion to stay proceedings is denied.

26

I. Background

27

A. Navajo and Hopi Indian Relocation Assistance

28

1

Although presented as a post-argument brief, the Court construes Plaintiffs’ brief
as a motion to stay proceedings and retain jurisdiction.

1

In 1882, a reservation was established in northeastern Arizona for the Hopi Nation

2

and “such other Indians as the Secretary of Interior may see fit to settle thereon.” Bedoni

3

v. Navajo-Hopi Indian Relocation Comm’n, 878 F.2d 1119, 1121 (9th Cir. 1989).

4

Members of the Navajo Nation subsequently settled on the reservation alongside the

5

Hopi. Id. “The Hopi and Navajo [Nations] coexisted on the 1882 reservation for 75

6

years, but became entangled in a struggle as to which [nation] had a clear right to the

7

reservation lands.” Id. In 1962, this district court found that the two tribes held joint,

8

undivided interests in most of the reservation, which was called the “joint use area”

9

(“JUA”). Id.

10

Twelve years later, after establishment of the JUA failed to solve inter-tribal

11

conflicts over the land, Congress passed the Navajo-Hopi Settlement Act in 1974.2 Id.

12

The Act authorized the district court to make a final partition of the reservation after

13

mediation efforts between the nations had failed. See Sekaquaptewa v. MacDonald, 626

14

F.2d 113, 115 (9th Cir. 1980). The Act also directed creation of ONHIR’s predecessor,

15

the Navajo-Hopi Relocation Commission, to provide services and benefits to help

16

relocate residents who were located on lands allocated to the other nation as a result of

17

the court-ordered partition. See Bedoni, 878 F.2d at 1121-22; 25 U.S.C. § 640d-11. To

18

be eligible for relocation benefits, a Navajo applicant bears the burden of demonstrating

19

that he or she was (1) a legal resident on the Hopi Partitioned Lands (“HPL”) on

20

December 22, 1974, and (2) a head of household on or before July 7, 1986. 25 C.F.R. §

21

700.147.

22

In 1986, ONHIR closed the application process, and it remained closed to new

23

applicants for nineteen years. See 51 Fed. Reg. 19169 (May 28, 1986). In 2005,

24

acknowledging the number of late applications, ONHIR began accepting benefit

25

applications from individuals who applied after the 1986 deadline or had not previously

26

been informed of their eligibility. § 700.138. This district court later held that ONHIR’s

27

2

28

Pub. L. 93-531 (The Navajo-Hopi Land Settlement Act of 1974), formerly
codified at 25 U.S.C. § 640d et seq., has been omitted from the U.S. Code “as being of
special and not general application.” The Court will continue to cite to 25 U.S.C. § 640d
et seq. for ease of reference.
-2-

1

fiduciary duty to displaced tribe members before 1986 had included an affirmative duty

2

to attempt to contact and inform potentially eligible individuals of their right to apply for

3

benefits. Herbert v. ONHIR, No. 06-CV-3014-PCT-NVW, 2008 WL 11338896, at *1

4

(D. Ariz. Feb. 27, 2008).

5

B. Factual and Procedural History

6

In June 2005, Edith Willie and Julia Willie (both enrolled members of the Navajo

7

Nation) applied separately for relocation benefits.

8

December 2005, ONHIR denied both sisters’ applications, finding that they “did not

9

reside on HPL during the requisite period.” (¶¶ 29-30.) In December 2005, Edith Willie

10

timely appealed ONHIR’s decision. (¶ 31.) In January 2006, Julia Willie and her late

11

husband Jim timely appealed ONHIR’s decision. (¶ 32.) In April 2010, an independent

12

hearing officer (“IHO”) held an appeal hearing. (¶ 37.)

(Doc. 1 ¶¶ 14-15, 27-28.)

In

13

In August 2010, the IHO issued an opinion upholding ONHIR’s denial, finding

14

that the testimony of Edith Willie, Julia Willie, Sylvia Rico, and Leroy Willie was not

15

credible. (¶¶ 48-49.) The IHO’s ruling became ONHIR’s final decision when ONHIR

16

issued a Final Agency Action on July 18, 2011. (¶ 58.) Edith Willie passed away in

17

2014. (¶ 16.)

18

On June 29, 2017, Sylvia Rico (as administrator of her mother Edith Willie’s

19

estate) and Julia Willie commenced this action for judicial review pursuant to 25 U.S.C. §

20

640d et seq. and the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et. seq. (¶

21

11.) On July 24, 2017, Julia Willie passed away. (Doc. 12.) On February 5, 2018, Leroy

22

Willie moved for substitution of himself (as administrator of his mother Julia Willie’s

23

estate) as Plaintiff. (Doc. 23.) On February 16, 2018, the Court granted the motion.

24

(Doc. 25.)

25

On February 2, 2018, ONHIR moved pursuant to Federal Rule of Civil Procedure

26

12(b)(1) to dismiss the case for lack of subject matter jurisdiction on the basis of both

27

standing and mootness. (Doc. 21.) In the alternative, ONHIR sought remand of the case

28

to the agency for further action. (Id.) In response, Plaintiffs opposed the motion to

-3-

1

dismiss, but agreed that a remand would be proper pursuant to ONHIR’s Management

2

Manual § 1714.3. (Doc. 26.) At oral argument, the parties agreed that a remand to the

3

agency would be proper given the change in circumstances surrounding Plaintiffs’

4

applications.

5

II. Discussion

6

A. Remand for Further Proceedings

7

“[A]ppeals from any eligibility determination of the Relocation Commission . . .

8

shall be brought in the United States District Court for the District of Arizona.” 25

9

U.S.C. § 640d-14. The APA governs judicial review of agency decisions under the

10

Settlement Act. Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 914 (9th Cir. 1995). The APA

11

provides that the Court may set aside an administrative agency’s decision only if that

12

decision is “arbitrary, capricious, an abuse of discretion, not in accordance with law, or

13

unsupported by substantial evidence.”

14

Comm’n, 878 F.2d 1119, 1122 (9th Cir. 1989) (citing 5 U.S.C. § 706(2)(A), (E) (1982);

15

Walker v. NHIRC, 728 F.2d 1276, 1278 (9th Cir. 1984)). But a court “should remand a

16

case to an agency for decision of a matter that statutes place primarily in agency hands.”

17

I.N.S. v. Orlando Ventura, 537 U.S. 12, 16 (2002). A court of appeals “is not generally

18

empowered to conduct a de novo inquiry into the matter being reviewed and to reach its

19

own conclusions based on such an inquiry.” Id. (quoting Florida Power & Light Co. v.

20

Lorion, 470 U.S. 729, 744 (1985)). Furthermore, “when an agency action is reviewed by

21

the courts . . . the agency may seek a remand to reconsider its decision because of

22

intervening events outside of the agency’s control.” SKF USA Inc. v. United States, 254

23

F.3d 1022, 1028 (Fed. Cir. 2001).

Bedoni v. Navajo–Hopi Indian Relocation

24

Here, remand is appropriate because of the change in circumstances surrounding

25

Plaintiffs’ applications. Edith Willie and Julia Willie were alive when they filed their

26

original applications with ONHIR and when they received a denial of their applications

27

by the agency. In the interim period between receiving a final determination from

28

ONHIR and filling an appeal in this Court, Edith Willie passed away. Julia Willie passed

-4-

1

away soon after filing her appeal. Both left behind households with no surviving spouses

2

or minor children. ONHIR’s Management Manual provides guidance on how to handle

3

cases in which the applicant dies and leaves behind a household with no surviving spouse

4

or minor children. Specifically, § 1700.1714.3 of ONHIR’s Management Manual states,

5

“If the household identified by the client prior to death consists solely of individuals who

6

had some other relationship to the client (i.e. grown children with dependents; live-in

7

partner/common-law spouse) the case will be referred to the Executive Director for a

8

determination of action to be taken.” Because Edith Willie and Julia Willie died after the

9

agency made its decision, however, ONHIR has not had the opportunity to make a

10

determination subject to this provision. Because ONHIR has not yet considered the

11

matter of benefits to Edith and Julia Willie’s estates, this matter is remanded for referral

12

to ONHIR’s Executive Director for a determination of action to be taken.

13

B. Stay of Proceedings

14

Plaintiffs’ post-argument brief requests a stay, arguing that “an immediate remand

15

and dismissal of this action could result in a statute of limitations bar to a later challenge

16

to ONHIR’s eligibility determinations.” (Doc. 38 at 2.) The Court is skeptical of this

17

argument. The six-year statute of limitations for civil actions against the United States

18

beings to run “after the right of action first accrues.” 28 U.S.C. § 2401(a). Under the

19

APA, the right of action accrues after the final agency action is taken. 5 U.S.C. § 704.

20

Because the Court remands this matter for further agency action , there presumably will

21

not be a final agency action until the Executive Director makes a determination pursuant

22

to § 1700.1714.3 of ONHIR’s Management Manual, and the Commission affirms or

23

reverses that decision. See 25 C.F.R. § 700.319.

24

To the extent that the Executive Director’s decision does not serve as the final

25

agency decision, however, “section 2401(a)’s six-year statute of limitations is not

26

jurisdictional, but is subject to waiver.” See Pub. Citizen, Inc. v. Mukasey, No. C 08-

27

0833 MHP, 2008 WL 4532540, at *8 (N.D. Cal. Oct. 9, 2008) (citing Cedars-Sinai Med.

28

Ctr. v. Shalala, 125 F.3d 765 (9th Cir. 1997)). ONHIR, in its responsive post-argument

-5-

1

brief, affirmatively waives any potential statute of limitations defense to a subsequent

2

APA action in this matter upon completion of the remanded proceedings. (Doc. 39 at 2.)

3

Accordingly, a stay premised on Plaintiffs’ statute of limitations concerns is not

4

warranted.

5

IT IS ORDERED that ONHIR’s motion to remand the case (Doc. 21) is

6

GRANTED.

7

determination pursuant to ONHIR’s Management Manual § 1714.3.

This matter shall be remanded to ONHIR’s Executive Director for a

8

IT IS FURTHER ORDERED that Plaintiffs’ motion to stay (Doc. 38) is

9

DENIED. The Clerk of the Court is directed to terminate this case without further order

10
11

of the Court.
Dated this 30th day of July, 2018.

12
13
14
15
16

Douglas L. Rayes
United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28

-6-