Alto et al v. Salazar et al

Filing 125

ORDER denying Plaintiffs' 103 Motion for Summary Judgment; granting Defendants' 110 Cross-Motion for Summary Judgment. Court affirms the Asst. Secretary's 2011 Decision "revers(ing) the decision made by the Pacific Regional D irector on November 26, 2008" and concluding that " the enrollment of the Marcus Alto Sr. descendants was based on information subsequently determined to be inaccurate and, as a result, their names must be deleted from the Band's roll". Signed by Judge Cynthia Bashant on 9/30/2015. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALBERT P. ALTO, et al.,

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Case No. 11-cv-2276-BAS(BLM)
Plaintiffs,

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(1) DENYING PLAINTIFFS’
MOTION FOR SUMMARY
JUDGMENT; AND

v.

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SALLY JEWELL, Secretary of the
United States Department of the
Interior, et al.,

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ORDER:

Defendants.

(2) GRANTING DEFENDANTS’
CROSS-MOTION FOR SUMMARY
JUDGMENT
[ECF Nos. 103, 110]

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On September 30, 2011, Plaintiffs commenced this declaratory and injunctive-

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relief action, seeking judicial review of a decision issued by the Assistant Secretary –

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Indian Affairs (“Assistant Secretary” or “AS-IA”) under the Administrative Procedure

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Act (“APA”), 5 U.S.C. § 706(2)(A), against the Secretary of the Department of the

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Interior and other federal officials.1 Each defendant is sued in his or her respective

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official capacity. The complaint was amended once with the First Amended Complaint

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The current defendants in this action include Sally Jewell, Secretary of the United States
Department of the Interior; Kevin K. Washburn, Assistant Secretary of Indian Affairs; Michael Black,
Director of the Bureau of Indian Affairs (“BIA”) of the Department of Interior; and Robert Eben,
Superintendent of the Department of the Interior Indian Affairs, Southern California Agency. Ken
Salazar and Larry Echo Hawk, originally named as defendants, are no longer parties to this action by
operation of Federal Rule of Civil Procedure 25(d).
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(“FAC”) being the operative complaint. This action arises from the approval of a

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recommendation from the Enrollment Committee of the San Pasqual Band of Diegueño

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Mission Indians (“San Pasqual Band” or “Band”) to disenroll the named plaintiffs from

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the Band’s membership roll.2 Now pending before the Court are the parties’ cross-

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motions for summary judgment.

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Having reviewed the papers submitted and oral argument from both parties, the

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Court DENIES Plaintiffs’ motion for summary judgment, and GRANTS Defendants’

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cross-motion for summary judgment.

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I.

BACKGROUND3

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“For nearly two centuries now, [federal law has] recognized Indian tribes as

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‘distinct, independent political communities,’ qualified to exercise many of the powers

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and prerogatives of self-government.” Plains Commerce Bank v. Long Family & Cattle

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Co., 554 U.S. 316, 327 (2008) (citations omitted) (quoting Worcester v. Georgia, 6 Pet.

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515, 559 (1832)) (citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978)). The

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“sovereignty that the Indian tribes retain is of a unique and limited character.”

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The following are the named plaintiffs in this action (collectively referred to as “Plaintiffs”
or “Marcus Alto, Sr.’s descendants”): Albert P. Alto; Andre E. Alto; Anthony Alto; Brandon Alto;
Christopher J. Alto; Chasity Alto; Daniel J. Alto, Sr.; Daniel J. Alto, Jr.; Dominique N. Alto; Raymond
E. Alto; Raymond E. Alto, Sr.; Raymond J. Alto; Robert Alto; Victoria Ballew; Angela Ballon; Juan
J. Ballon; Rebecca Ballon; Rudy Ballon; Janice J. Banderas; Pedro Banderas; Peter Banderas; Victor
Banderas; Monica Diaz; Anthony Forrester; Dustin Forrester; Johanna Forrester; Sarah Forrester;
Ernest Gomez; Henrietta Gomez; Kathleen M. Gomez; Marcus G. (Minor); Lydia Green; Paul
Anthony Green; Humberto R. Green; Mary Jo Hurtado; Justin A. Islas; Alexis L. (Minor); Cynthia
Ledesma; Destiny C. Ledesma; Jesse L. (Minor); Isabelle M. Sepeda; Lupe Sepeda; Deborah L.
Vargas; Desiree Vargas; Jeremiah Vargas; Jessiah Vargas; Terry Weight; Roland Alto, Sr.; Roland
Alto, Jr.; Amanda Minges; David Brokiewicz; Diana Brokiewicz; Patricia Brokiewicz; Jason Alto;
Carol Edith Cavazos; Aimee R. Diaz; Jessica Diaz; Toni Diaz; Daniel Gomez; Lisa Huntoon;
Christine Martinez; Donelle Martinez; Justine Martinez; Marlene Martinez; Sabrina Martinez; and
Cassandra Sepeda.
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Some documents included in the administrative record have multiple sets of page numbers.
One set appears to be original numbering for the record submitted to the Assistant Secretary. Those
numbers appear in the form of ALTO-2012-0001137, for example, which is the first page of the
Assistant Secretary’s January 28, 2011 Decision (“2011 Decision”). Despite the presence of the other
number sets, the parties’ briefs appear to use this original numbering. The Court will do the same.
Accordingly, references to the administrative record will be designated with the prefix “AR” followed
by the appropriate Bates-stamped page number. Applied to the example above, a reference to the first
page of the Assistant Secretary’s 2011 Decision will read “AR 1137.”
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Wheeler, 435 U.S. at 323. “[T]ribes are subject to plenary control by Congress,” but

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they also remain “separate sovereigns pre-existing the Constitution.” Santa Clara

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Pueblo v. Martinez, 436 U.S. 49, 56 (1978); see United States v. Lara, 541 U.S. 193,

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200 (2004). “Thus, unless and ‘until Congress acts, the tribes retain’ their historic

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sovereign authority.” Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S. Ct. 2024,

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2030 (2014) (citing Wheeler, 435 U.S. at 323).

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“As part of their residual sovereignty, tribes retain power to legislate and to tax

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activities on the reservation, including certain activities by nonmembers, to determine

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tribal membership, and to regulate domestic relations among members.” Plains

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Commerce Bank, 554 U.S. at 327 (citations omitted). “An Indian tribe has the power

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to define membership as it chooses, subject to the plenary power of Congress.”

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Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007). “A tribe’s right to define its own

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membership for tribal purposes has long been recognized as central to its existence as

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an independent political community.” Santa Clara Pueblo, 436 U.S. at 72 n.32.

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The San Pasqual Band’s Organization4

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A.

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Following a tumultuous history with white settlers dating back to the 1850s, “[i]n

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1954 the descendants of the San Pasqual Band realized that they would lose . . . [a]

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small piece of mislocated reservation land unless they organized to reclaim the

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reservation” that was initially created by President Ulysses S. Grant’s executive order

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in 1870. (AR 1138-39.) “The Indians were required by the [Bureau of Indian Affairs]

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to develop proof of their descent from the original San Pasqual members.” (AR 1139.)

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On July 29, 1959, the Department of the Interior published a notice of Proposed

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Rulemaking, setting out regulations intended to “govern the preparation of a roll of the

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San Pasqual Band of Mission Indians in California.” (AR 1139.) The final rule was

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The background describing the San Pasqual Band’s organization is taken almost exclusively
from the Assistant Secretary’s 2011 Decision. (AR 1137-56.) A timeline of the Band’s history is also
included in the administrative record. (See AR 2092-94; see also AR 2060-67.) The Band’s
organizational history is not in dispute in this action.
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codified at 25 C.F.R. Part 48, published March 2, 1960. (Id.) See also 25 Fed. Reg.

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1829 (Mar. 2, 1960) (codified at 25 C.F.R. pt. 48). These regulations “directed that a

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person who was alive on January 1, 1959, qualified for membership in the band if that

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person was named as a member of the Band on the 1910 San Pasqual census, or

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descended from a person on the 1910 census and possessed at least 1/8 blood of the

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band, or was able to furnish proof that he or she was 1/8 or more blood of the Band.”

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(AR 1140.)

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Under the regulations promulgated in Part 48, an Enrollment Committee (“EC”)

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was formed, “consisting of three primary and two alternate members, all of whom were

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shown on a 1910 Bureau of Indian Affairs (BIA) census of San Pasqual Indians.” (AR

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1140.) The regulations provided application and review procedures for any individuals

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interested in applying for membership in the San Pasqual Band. (Id.) Though the

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BIA’s Field Representative accepted the applications, the Enrollment Committee

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reviewed applications and made recommendations that ultimately ended up with the

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Area Director. (Id.) “The Director was authorized by the Regulations to determine

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whether a person is qualified for membership.” (Id.) Any appeals would then go to the

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Commissioner and the Secretary of the Interior. (Id.) “Thus, under the regulations, the

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authority to issue a final decision respecting membership in the Band was vested in

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officials in the Department of the Interior.”5 (Id.) The implementation of the

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regulations resulted in the creation of a membership roll for the San Pasqual Band in

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1966. (Id.)

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In November 1970, the Band voted on its Constitution, which was subsequently

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approved by the AS-IA in January 1971. (AR 1140; see also AR 1599-1600.) Article

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III of the San Pasqual Band’s Constitution provided the following:

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Several of the titles in the Department of the Interior have since changed names: the BIA’s
Field Representative is equivalent to today’s Agency Superintendent; the Area Director is now known
as the Regional Director; and the Commissioner is now known as the Director of the BIA. (AR 1140.)
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Section 1. Membership shall consist of those living persons
whose names appear on the approved Roll of October 5,
1966, according to Title 25, Code of Federal Regulations,
Part 48.1 through 48.15.

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Sec[tion] 2. All membership in the band shall be approved
according to the Code of Federal Regulations, Title 25, Part
48.1 through 48.15 and an enrollment ordinance which shall
be approved by the Secretary of the Interior.

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(AR 1591; see also AR 1140.) “The plain language of the Band’s Constitution

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incorporates the Part 48 regulations as published in 1960 as the controlling law of the

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Band.” (AR 1141; see also AR 1591.)

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In November 1983, the United States Claims Court issued an award to the San

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Pasqual Band in a compromise settlement. (AR 1141.) Funds were subsequently

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appropriated by Congress to satisfy the award. (Id.)

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In 1987, the regulations were rewritten to assist in the distribution of the

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judgment funds by bringing the membership roll current. (AR 1141, 1573-77.) The

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final rule was codified in 25 C.F.R. Part 76, published August 20, 1987. 52 Fed. Reg.

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31391 (Aug. 20, 1987) (codified at 25 C.F.R. pt. 76). The revised regulations, Part 76,

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which became effective September 1987, included the following summary description:

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In accordance with a judgment plan . . . prepared pursuant to
the Indian Judgment Funds Distribution Act, as amended, a
portion of the judgment funds is to be distributed on a per
capita basis to all tribal members living on April 27, 1985.
The revision to the regulations will provide procedures,
including a deadline for filing applications, to govern the
preparation of a membership roll of the San Pasqual Band as
of April 27, 1985, which will serve as the basis for the per
capita distribution of judgment funds.

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(AR 1573.) This revision was later removed in June 1996 because “[t]he purpose for

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which these rules were promulgated has been fulfilled and the rules are no longer

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required.” 61 Fed. Reg. 27780 (June 3, 1996). “Members of the San Pasqual Band

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have been enrolled as required in satisfaction of the judgments of the United States

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Claims Court docket 80-A.” Id.

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B.

Marcus Alto, Sr. and His Descendants’ Enrollment

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Plaintiffs are descendants of Marcus R. Alto, Sr. Neither Marcus Alto, Sr. nor

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his descendants were included on the 1966 membership roll. (AR 1140.) But on

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November 15, 1987, he and several of his descendants did apply for enrollment under

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the 1987 regulations. (AR 1141.) “His descendants claim[ed] to be eligible for

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enrollment in the Band based on the alleged biological link that Marcus Sr. provides

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to Maria Duro Alto and Jose Alto[.]” (Id.) Maria Duro Alto6 and Jose Alto are

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identified as Marcus Alto, Sr.’s parents, and it is uncontested that both parents were

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full-blood members of the Band. (AR 1141-42, 1516-18.)

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Marcus Alto, Sr. died on June 16, 1988, before his enrollment application had

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been decided. (AR 1141, 1516-18.) However, the BIA continued processing his

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descendants’ applications, and in May 1991, the BIA Superintendent notified the EC

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of his determination that Marcus Alto, Sr.’s descendants were eligible for enrollment

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in the San Pasqual Band. (AR 1141.) The Band challenged that determination in favor

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of Marcus Alto, Sr.’s descendants, which was ultimately appealed to the Assistant

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Secretary – Indian Affairs, who at the time was Ada E. Deer. (Id.; see also AR 752-

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54.)

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On April 10, 1995, in a final decision (“1995 Decision”) from the Department

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of the Interior, the Assistant Secretary affirmed the Regional Director’s finding from

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January 1994 that Marcus Alto, Sr. was full-blooded Diegueño Indian, upheld the

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enrollment of Marcus Alto, Sr. and his descendants, and found that they are eligible for

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inclusion on the Band’s distribution roll. (AR 1141-42, 1516-18.)

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Maria Alto’s maiden name is Maria Duro. Throughout the administrative record, she is
referred to as Maria Alto, Maria Duro Alto, and Maria Duro. The three names are used
interchangeably to refer to Marcus Alto, Sr.’s mother.
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C.

The Assistant Secretary’s 2011 Decision

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A little over a decade later, Marcus Alto, Sr. and his descendants’ enrollment

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status once again came to the forefront. In 2007, Marcus Alto, Sr.’s descendants’

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qualification for enrollment was challenged, supported with purportedly new evidence.

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(AR 1142.) The EC reopened the matter of Marcus Alto, Sr.’s ancestry, and Marcus

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Alto, Sr.’s descendants were provided with an opportunity to rebut the new evidence.

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(Id.) Relying on the 1960 regulations permitting disenrollment when the decision to

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enroll was based on information “subsequently determined to be inaccurate,” the EC

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proposed a revised membership roll to the BIA based on “new evidence provid[ing]

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substantial and convincing proof that Marcus R. Alto, Sr. [was] not the biological son

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of Maria Duro Alto, and that information provided on the 1987 membership application

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. . . was inaccurate and incomplete.” (AR 1142, 2010-11, 2013.)

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On November 26, 2008, the Regional Director rejected the EC’s

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recommendation to approve the disenrollment of Marcus Alto, Sr.’s descendants. (AR

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1466-74.) In a ten-page written decision, the Regional Director concluded that the

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information submitted by the EC “does not demonstrate the BIA’s prior enrollment

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determination [in 1995] is inaccurate, and therefore does not support deletion of Mr.

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[Marcus] Alto from the Band’s membership roll.”

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proceedings leading to the 1995 Decision, this challenge was ultimately appealed to the

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Assistant Secretary – Indian Affairs, who at the time was Larry Echo Hawk. (See AR

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1137-58.)

(AR 1466.)

But like the

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On January 28, 2011, the Assistant Secretary issued his twenty-page decision

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reversing the Regional Director’s decision. (AR 1137-56.) To reach his conclusion,

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the Assistant Secretary identified six “key disputed facts” that first needed to be

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resolved:

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1. Whether the 1907 baptismal certificate for “Roberto
Marco Alto” is that of Marcus Alto, Sr. A key subpart of
this determination is assessing whether Marcus Alto was
born in 1905, 1907, or some other year.

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2. Whether Marcus Alto’s failure to declare whether or not
he was adopted on his application for enrollment in the
Band, dated November 15, 1987, is persuasive evidence.

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3. Whether Maria Duro Alto’s statement that she had “no
issue” (on her application for inclusion on the 1933 Roll of
California Indians) is persuasive evidence.

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4. Whether the non-inclusion of Marcus Alto’s name on the
early San Pasqual censuses is persuasive evidence.

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5. Whether testimonial evidence in the record is persuasive
evidence.

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6. Whether DNA testimony submitted by Alto descendants
is persuasive evidence.

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(AR 1147.)

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Before reaching his conclusion, the Assistant Secretary recognized “[t]here was

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universal acceptance of the fact that Marcus Alto, Sr., was raised from infancy by Jose

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Alto and Maria Duro Alto.” (AR 1155.) It was also emphasized that “[m]uch of the

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record evidence [was] conflicting, incomplete, or demonstrably inaccurate[,]” and that

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“[t]he record itself lack[ed] the most vital documents, including particularly a birth

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certificate for Marcus Alto.” (Id.) Despite that, the Assistant Secretary found that “fair

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interpretation of the most probative, objective, and competent evidence available amply

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supports the Enrollment Committee’s recommendation to disenroll the Alto

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descendants.” (Id.) Particular emphasis was given to:

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Marcus Alto’s absence from the early San Pasqual Indian
censuses that showed Jose and Maria Alto; the competent
testimony of tribal elders, family friends, and Dr. Shipek;
and the facts set out in the 1907 baptismal certificate as
corroborated by testimony in the affidavits. [And] the
evidence relied upon by the Alto descendants [was] either
self-reported by Marcus Alto, Sr.,—who cannot provide a
first-hand account of his birth and parentage—or, in the case
of information on Marcus Alto’s application for inclusion on
the 1933 Roll of California Indians, supplied by people with
no obvious or inferable knowledge of Marcus Alto’s
parentage.

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(AR 1155-56.) Based on the evidence available at the time and by a preponderance of

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the evidence, the Assistant Secretary reversed the Regional Director’s decision and

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determined that Marcus Alto, Sr.’s descendants’ “names must be deleted from the

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Band’s roll.”7 (AR 1156.)

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D.

Procedural History of This Action

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On September 9, 2011, Plaintiffs filed this complaint seeking, among other

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things, judicial review of the Assistant Secretary’s 2011 Decision under the APA and

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the arbitrary-and-capricious standard. Defendants answered.

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Shortly after this action began, the Court granted Plaintiffs’ motion for a

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preliminary injunction, restraining and enjoining Defendants from removing Plaintiffs

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from the San Pasqual Band’s membership roll and from taking any further action to

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implement the Assistant Secretary’s 2011 Decision for the duration of this lawsuit.

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(ECF No. 24.) The Court also enjoined the Assistant Secretary from issuing certain

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interim orders. (Id.)

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On March 13, 2012, the complaint was amended upon receiving leave from the

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Court. (ECF No. 50.) In the FAC, Plaintiffs assert five claims to set aside the

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Assistant Secretary’s 2011 Decision: (1) declaratory relief based upon the doctrine of

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res judicata; (2) declaratory relief on the basis that Defendant Echo Hawk violated the

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enrolled Plaintiffs’ right to procedural due process; (3) declaratory relief and reversal

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of the 2011 Decision based upon the arbitrary-and-capricious standard; (4) “federal

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agency action unlawfully withheld and request for preliminary injunctive relief”; and

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(5) “declaratory and injunctive relief by all Plaintiffs against all Defendants[.]”8

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Interestingly, the Assistant Secretary left open the possibility of revisiting Marcus Alto, Sr.’s
enrollment status in the future yet again because “evidence may come to light in the future that could
overturn the reasoning set out [in the 2011 Decision].” (AR 1156.) For example, “[u]ncovering
Marcus Alto, Sr.’s[] birth certificate, or conducting more thorough and accurate genetic testing, may
prove the biological connection claimed by the Alto descendants.” (Id.)
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Plaintiffs have since abandoned their second claim for procedural-due-process violations.
(See Pls.’ Reply 1:10–13.)
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Defendants answered the FAC.

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After the Court granted the San Pasqual Band the limited right to intervene, the

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Band pursued an interlocutory appeal to the Ninth Circuit. The Ninth Circuit affirmed

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this Court’s determination that it had jurisdiction to review the Assistant Secretary’s

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disenrollment decision and that the San Pasqual Band is not an indispensable party.

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Alto v. Black, 738 F.3d 1111, 1131 (9th Cir. 2013). The Ninth Circuit also remanded

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to “allow the district court formally to clarify the original injunction to conform with

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the [Ninth Circuit’s] understanding of the injunction,” which was eventually resolved

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by the parties. Id.

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Now pending before the Court are the parties’ cross-motions for summary

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judgment.9 (ECF Nos. 103, 110.) The administrative record was lodged with the Clerk

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of the Court. (ECF No. 51.) Following briefing, the parties appeared for oral argument

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on September 21, 2015.

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II.

STANDARD OF REVIEW

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Summary judgment is proper if the pleadings, discovery, and affidavits show that

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there is “no genuine dispute as to any material fact and [that] the movant is entitled to

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judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477

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U.S. 317, 322 (1986). Summary judgment is a particularly appropriate tool for

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resolving claims challenging agency action. See Occidental Eng’g Co. v. INS, 753 F.2d

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766, 770 (9th Cir. 1985). As the administrative record constitutes the entire factual

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record in this case and there are no facts at issue between the parties, this matter is ripe

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for summary judgment.

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A final agency action is reviewable under 5 U.S.C. § 706 when “there is no other

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adequate remedy in a court.” 5 U.S.C. § 704. “Under the APA, [a court] will reverse

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This action was originally assigned to the Honorable Irma E. Gonzalez. Upon Judge
Gonzalez’s retirement, the case was transferred to the Honorable Michael M. Anello. In May 2014,
this case was then transferred to this Court.
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an agency’s action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not

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in accordance with law,’ or if its factual findings are ‘unsupported by substantial

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evidence.’” Love Korean Church v. Chertoff, 549 F.3d 749, 754 (9th Cir. 2008)

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(internal citations and quotation marks omitted); see 5 U.S.C. § 706(2)(A), (E). Review

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under this standard is “searching and careful,” but also “narrow.” Marsh v. Oregon

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Natural Res. Council, 490 U.S. 360, 378 (1989). “Although [the court’s] inquiry must

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be thorough, the standard of review is highly deferential; the agency’s decision is

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‘entitled to a presumption of regularity,’ and [the court] may not substitute [its] own

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judgment for that of the agency.” San Luis & Delta-Mendota Water Auth. v. Jewell,

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747 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v.

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Volpe, 401 U.S. 402, 415-16 (1971)).

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An agency decision is arbitrary and capricious:

if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
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important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
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agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.
16 Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983);
13

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see also Hovhannisyan v. U.S. Dep’t of Homeland Sec., 624 F. Supp. 2d 1135, 1149

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(C.D. Cal. 2008) (“[A]n agency abuses its discretion when it fails to comply with [its

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own] regulations.”). The agency must “cogently explain why it has exercised its

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discretion in a given manner,” and the reviewing court must determine “whether the

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decision was based on a consideration of the relevant factors and whether there has

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been a clear error of judgment.” State Farm, 463 U.S. at 43.

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Where the agency has relied on “relevant evidence [such that] a reasonable mind

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might accept as adequate to support a conclusion,” its decision is supported by

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“substantial evidence.” Bear Lake Watch, Inc. v. Fed. Energy Regulatory Comm’n, 324

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F.3d 1071, 1076 (9th Cir. 2003). Even “[i]f the evidence is susceptible of more than

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one rational interpretation, [the court] must uphold [the agency’s] findings.” Id. A

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court must also “uphold a decision of less than ideal clarity if the agency’s path may
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reasonably be discerned . . . [but] may not infer an agency’s reasoning from mere

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silence.” Arlington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008). The burden is on

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the plaintiffs to show any decision or action was arbitrary and capricious. See Kleppe

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v. Sierra Club, 427 U.S. 390, 412 (1976).

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III.

DISCUSSION10

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Plaintiffs’ challenge to the Assistant Secretary’s 2011 Decision can be divided

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into two categories. The first is a purely legal challenge, arguing that the Assistant

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Secretary’s prior determination in the 1995 Decision precludes the conclusion in the

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2011 Decision under the doctrines of claim and issue preclusion.11 The second attacks

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factual determinations made by the Assistant Secretary in the 2011 Decision. In the

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latter category, Plaintiffs argue that the Assistant Secretary’s findings are arbitrary and

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capricious, an abuse of discretion, or otherwise not in accordance with law. The gist

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of Defendants’ response is that the Assistant Secretary’s 2011 Decision was reasonable

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and, as a result, should be affirmed by this Court.
The Court will address each issue raised by the parties below.

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Plaintiffs request that the Court take judicial notice of: (1) a page from the 1930 U.S. census
for Marcus Alto, Sr.; (2) the San Diego County Death Certificate for Francisco Alto, Jr.; and (3)
statements by Connie Alto (Pls.’ Reply 5:12–22). In requesting judicial notice, Plaintiffs attempt to
add evidence to the record. The Court agrees with Defendants that Plaintiffs attempt to improperly
introduce extra-record evidence to challenge the “correctness or wisdom of the agency’s decision.”
See San Luis & Delta-Mendota, 747 F.3d at 602. The Court also remains unconvinced that the
aforementioned materials are “necessary to determine if the agency has considered all factors and
explained its decision.” See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th
Cir. 2010) (emphasis added). Therefore, the Court DENIES Plaintiffs’ request for judicial notice.
However, even if the Court considered these documents, it would ultimately have no effect on the
conclusion of this order.
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The Court will refer to res judicata as claim preclusion and collateral estoppel as issue
preclusion. See Gonzalez v. Cal. Dep’t of Corrections, 739 F.3d 1226, 1230 n.3 (9th Cir. 2014).
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Preclusion12

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A.

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Plaintiffs argue that 1995 Decision concluding that Marcus Alto, Sr. was full-

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blooded Diegueño Indian, among other things, precludes re-litigation of his blood

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quantum.

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enrollment decisions. The Court agrees with Defendants.

Defendants contend that neither principle bars reevaluation of prior

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Claim preclusion “forecloses successive litigation on the very same claim,

7

whether or not relitigation of the claim raises the same issues as the earlier suit.”

8

Gonzalez, 739 F.3d at 1230 n.3 (internal quotation marks omitted). In other words,

9

once rendered, judgment is treated “as the full measure of relief to be accorded between

10

the parties on the same ‘claim’ or ‘cause of action.’” Hydranautics v. FilmTec Corp.,

11

204 F.3d 880, 887 (9th Cir. 2000). An action is barred under claim preclusion where

12

“(1) the prior litigation involved the same parties or privies, (2) the prior litigation was

13

terminated by a final judgment on the merits, and (3) the prior litigation involved the

14

same ‘claim’ or ‘cause of action’ as the later suit.” Id. at 888.

15

Issue preclusion “bars successive litigation of an issue of fact or law actually

16

litigated and resolved in a valid court determination essential to the prior judgment,

17

even if the issue recurs in the context of a different claim.” Gonzalez, 739 F.3d at 1230

18

n.3 (internal quotation marks omitted). It applies where “(1) the issue necessarily

19

decided at the previous proceeding is identical to the one which is sought to be

20
21
22
23
24
25
26
27
28

12

The Assistant Secretary did not address preclusion in the 2011 Decision. As a result,
application of preclusion principles is not reviewed under the APA’s arbitrary-and-capricious standard.
The parties do, however, both appear to implicitly agree that preclusion is an issue properly before the
Court. Cf. Aguayo v. Jewell, No. 13-cv-1435, 2014 WL 6473111, at *17 (S.D. Cal. Nov. 18, 2014)
(preclusion arguments were first presented to the Department of the Interior before review by the
district court in a disenrollment context). The Court’s independent research suggests the same. See
Canonsberg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8, 27 n.15 (D.D.C. 2013) (citing Barlow v.
Collins, 397 U.S. 159, 166 (1970) (“The rule of the courts should, in particular, be viewed hospitably
where . . . the question sought to be reviewed does not significantly engage the agency’s expertise.”);
Athlone Indus., Inc. v. Consumer Prod. Safety Comm’n, 707 F.2d 1485, 1489 (D.C. Cir. 1983)
(holding that administrative exhaustion was not required where issue was strictly legal, “[n]o factual
development or application of agency expertise [would] aid the court's decision,” a decision by the
court would not “invade the field of agency expertise or discretion,” and controversy “presents issues
on which courts and not administrators are more expert” when the only dispute relates to the meaning
of a statutory term)).
- 13 -

11cv2276

1

relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3)

2

the party against whom collateral estoppel is asserted was a party or in privity with a

3

party at the first proceeding.” Hydranautics, 204 F.3d at 885. “The party asserting

4

preclusion bears the burden of showing with clarity and certainty what was determined

5

by the prior judgment.” Id.

6

In United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22

7

(1966), the Supreme Court removed any doubt that preclusion principles may apply to

8

administrative proceedings. Preclusion particularly applies in circumstances “[w]hen

9

an administrative agency is acting in a judicial capacity and resolved disputed issues

10

of fact properly before it which the parties have had an adequate opportunity to

11

litigate.” Utah Constr., 384 U.S. at 422. Since Utah Construction, “courts have

12

increasingly given res judicata and collateral estoppel effect to the determinations of

13

administrative agencies acting in a judicial capacity.” United States v. Lasky, 600 F.2d

14

765, 768 (9th Cir. 1979).

15

“Despite this general acceptance, the doctrines are not to be applied to

16

administrative decisions with the same rigidity as their judicial counterpart.” Lasky,

17

600 F.2d at 768 (citing Am. Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d

18

3, 10 (5th Cir. 1974); United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973)); see

19

also Valencia-Alvarez v. Gonzalez, 469 F.3d 1319, 1324 n.7 (9th Cir. 2006) (“[I]n the

20

administrative law context, ‘the principles of collateral estoppel and res judicata are

21

applied flexibly.’”). “This is particularly true where their application would contravene

22

an overriding public policy.” Lasky, 600 F.2d at 768 (citing Tipler v. E.I. du Pont de

23

Nemours & Co., 443 F.2d 125, 128 (6th Cir. 1971)). Consequently, “the need to

24

proceed cautiously in this area is acute, and due regard must be given in each case as

25

to whether the application of the doctrine is appropriate in light of the particular prior

26

administrative proceedings.” Id.

27

//

28

//
- 14 -

11cv2276

1

1.

Application of Preclusion Principles

2

When comparing the 1995 Decision and 2011 Decision, it is easy to jump to the

3

conclusion that preclusion principles apply—Marcus Alto, Sr.’s blood degree was a

4

factual issue previously litigated to its conclusion in the 1995 Decision, and it is at

5

issue here once again. See Hydranautics, 204 F.3d at 885, 888. But that is an

6

oversimplification of the factual and legal cogs at work. Though the 1995 Decision

7

and 2011 Decision addressed arguably the same factual issue regarding Marcus Alto,

8

Sr.’s blood degree to contradicting conclusions, it is important to consider that the legal

9

foundations to reach those respective conclusions are quite different.

10

In the 1995 Decision, AS-IA Ada E. Deer found that Marcus Alto, Sr. “possessed

11

4/4 Indian blood of the Band” in upholding his and his descendants’ enrollment and

12

finding that “they are eligible for inclusion on the Band’s Docket 80-A distribution

13

roll.” (AR 1518.) To reach that conclusion, AS-IA Ada E. Deer relied on the

14

regulatory framework in 25 C.F.R. Part 76 (1987), 52 Fed. Reg. at 31392-93, a

15

regulation implemented in order to distribute certain judgment funds issued as an award

16

in a compromise settlement with the San Pasqual Band. (AR 1141.) Section 76.4 of

17

the 1987 regulations provides the enrollment requirements relied upon in the 1995

18

Decision. (AR 1516.)

19

The regulatory framework supporting the 2011 Decision is quite different. AS-

20

IA Larry Echo Hawk relied on the regulatory framework in 25 C.F.R. Part 48 (1960),

21

29 Fed. Reg. at 1831, which was also adopted by the San Pasqual Band through its

22

Constitution. (AR 1142.) Section 48.14(d) of the 1960 regulations requires that the

23

membership roll be kept current by deleting “[n]ames of individuals whose enrollment

24

was based on information subsequently determined to be inaccurate . . . subject to the

25

approval of the Secretary.” 29 Fed. Reg. at 1831. That is the authority that AS-IA

26

Larry Echo Hawk explicitly invoked in reaching his conclusion in the 2011 Decision

27

that “the enrollment of the Marcus Alto, Sr.[] descendants was based on information

28

subsequently determined to be inaccurate, and as a result, their names must be deleted
- 15 -

11cv2276

1

from the Band’s roll.” (AR 1142, 1156.)

2

The two agency decisions relied on fundamentally different regulations

3

permitting their respective actions: Part 76, which was later removed, permitted the

4

Assistant Secretary to review new applications for enrollment; and Part 48 permitted

5

and continues to permit the Assistant Secretary keep the Band’s membership rolls

6

accurate and current. See 52 Fed. Reg. at 31392-93; 29 Fed. Reg. at 1831. These

7

circumstances call for the “flexible” application of preclusion principles to the

8

administrative agency decision currently before this Court. See Valencia-Alvarez, 469

9

F.3d at 1324 n.7. Proceeding more cautiously, it is apparent that though the 1995

10

Decision and 2011 Decision address a similar factual issue, the conclusions are very

11

different in nature. The 1995 Decision relied on the now-defunct 1987 regulations

12

permitting enrollment in order to distribute certain settlement funds while the 2011

13

Decision relied on the still-operative 1960 regulations and the Band’s Constitution

14

permitting reevaluation of membership status under certain circumstances. This critical

15

difference compels this Court to conclude that application of preclusion principles is

16

not appropriate upon reviewing the two administrative proceedings with closer

17

scrutiny. See Lasky, 600 F.2d at 768.

18
19

2.

Policy Considerations

20

Overriding policy considerations relevant to this case also support the

21

determination that applying preclusion principles would be inappropriate. See Lasky,

22

600 F.2d at 768. There are at least two applicable policies that warrant consideration:

23

(1) “[a] tribe’s right to define its own membership for tribal purposes”; and (2) “federal

24

policy favoring tribal self-government[.]” See Alto, 738 F.3d at 1115 (citing Cahto

25

Tribe of Laytonville Rancheria v. Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013);

26

Lewis v. Norton, 424 F.3d 959, 961 (9th Cir. 2005)). Though the San Pasqual Band

27

vested ultimate authority over membership decisions to the Department of the Interior

28

when its Constitution was adopted, that does not minimize a tribe’s conscious decision
- 16 -

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1

to incorporate language from certain federal regulations. See id.

2

In 1970, presumably contemplating the full impact of § 48.14 of the 1960

3

regulations as the vehicle for keeping its membership roll current, the San Pasqual

4

Band voted and approved its Constitution incorporating the still-operative provisions

5

of Part 48. (AR 1141, 1591.) From that, it is easy to infer that the Band fully intended

6

to keep its membership roll current and accurate under the provisions of Part 48. In

7

other words, the San Pasqual Band defined its membership as not one that is absolute,

8

but subject to review under certain circumstances, in part, to promote accuracy. That

9

is further highlighted by the fact that Part 76 is now defunct after serving a specific

10

purpose during a discrete time period.

11

Strictly applying preclusion principles to the circumstances of this case would

12

negate both policies of a tribe’s right to define its own membership and tribal self-

13

government. By precluding the 2011 Decision as a result of the conclusion reached in

14

the 1995 Decision, the Court would effectively nullify portions of Part 48 and the San

15

Pasqual Band’s Constitution that allows review of membership decisions based on

16

information subsequently deemed to be inaccurate. It would also override federal

17

policy favoring tribal self-government, which in this case is the San Pasqual Band’s

18

incorporation of Part 48 through the approval of its Constitution.

19

Keeping these policies in mind, this Court is not prepared to make a legal

20

determination based on preclusion principles finding that the San Pasqual Band cannot

21

review membership decisions when it explicitly contemplated that authority through

22

the approval of its Constitution and adoption of Part 48. See Alto, 738 F.3d at 1115.

23

To find otherwise would not only offend the San Pasqual Band’s right to define its own

24

membership, but also violate federal policy favoring tribal self-government. These

25

policy considerations in conjunction with the fact that the two agency decisions are

26

based on different regulations—one of which is now defunct, and the other which

27

remains operative and incorporated into the Band’s Constitution—compel this Court

28

to find that strictly applying preclusion principles would be inappropriate. See Lasky,
- 17 -

11cv2276

1

600 F.2d at 768.

2
3

B.

4

“Under the APA, [a court] will reverse an agency’s action if it is ‘arbitrary,

5

capricious, an abuse of discretion, or otherwise not in accordance with law,’ or if its

6

factual findings are ‘unsupported by substantial evidence.’” Love Korean Church, 549

7

F.3d at 754 (internal citations and quotation marks omitted); see 5 U.S.C. § 706(2)(A),

8

(E). The scope of the court’s review under the APA is narrow, and a court may not

9

substitute its own judgment for that of the agency. See San Luis & Delta-Mendota, 747

10

Challenges to the Assistant Secretary’s Factual Determinations

F.3d at 601.

11

Agency decisions are examined to “ensure that it has articulated a rational

12

relationship between its factual findings and its decision[.]” Fence Creek Cattle, 602

13

F.3d at 1132. The agency’s factual determinations are entitled to substantial deference

14

and should be upheld if they are supported by the administrative record. Arkansas v.

15

Oklahoma, 503 U.S. 91, 112 (1992); see also Melkonian v. Ashcroft, 320 F.3d 1061,

16

1065 (9th Cir. 2003) (noting that an agency’s factual findings must be upheld “if

17

supported by reasonable, substantial, and probative evidence in the record”);

18

Bonnichsen v. United States, 367 F.3d 864, 880 n.19 (9th Cir. 2004) (“Substantial

19

evidence means such relevant evidence as a reasonable mind might accept as adequate

20

to support a conclusion.”); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)

21

(“Substantial evidence is more than a scintilla but less than a preponderance.”). If the

22

record supports more than one rational interpretation of the evidence, the court will

23

defer to the agency’s decision. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir.

24

2005).

25

The administrative record “consists of all documents and materials directly or

26

indirectly considered by agency decision-makers and includes evidence contrary to the

27

agency’s positions.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir.

28

1989) (emphasis in original). “Agencies are not required to consider every alternative
- 18 -

11cv2276

1

proposed nor respond to every comment made. Rather, an agency must consider only

2

‘significant and viable’ and ‘obvious’ alternatives.” Ron Peterson Firearms, LLC v.

3

Jones, 760 F.3d 1147, 1165 (10th Cir. 2014) (quoting 10 Ring Precision, Inc. v. Jones,

4

722 F.3d 711, 724 (5th Cir. 2013)) (internal quotation marks omitted). A court must

5

“uphold a decision of less than ideal clarity if the agency’s path may reasonably be

6

discerned[.]” Arlington, 516 F.3d at 1112.

7

Plaintiffs challenge seven factual determinations that the Assistant Secretary

8

relied upon to reach the conclusion to disenroll Marcus Alto, Sr.’s descendants. Each

9

challenge will be discussed below. Though all of Plaintiffs’ challenges are asserted

10

under § 706(2)(A)’s arbitrary-and-capricious standard, the Court will also review these

11

challenges under § 706(2)(E) for substantial evidence.

12
13

1.

Weight Given to the San Pasqual Censuses

14

Noting that “[t]he record includes BIA censuses of the San Pasqual Indians from

15

1907 through 1913, all of which include Jose Alto, Maria Duro, and Jose’s son, Frank

16

Alto,” the Assistant Secretary found that “the absence of Marcus Alto, under any name,

17

from these Indian censuses to be very weighty evidence that the couple who raised him

18

did not consider him to be a San Pasqual Indian—which would be consistent with his

19

being adopted.” (AR 1151.) Plaintiffs argue that the weight given the San Pasqual

20

censuses was arbitrary and an abuse of discretion for three reasons: (1) “the censuses

21

as now acknowledged were inaccurate”; (2) the Assistant Secretary “failed to address

22

the Band’s hired anthropology expert’s evidence”; and (3) “the 1920 U.S. census

23

identifies Marcus Alto Sr. as Maria and Jose Alto’s son, and the Alto family household

24

is identified as ‘Indian.’” (Pls.’ Mot. 12:1–17.)

25

To begin, there is no acknowledgment that the censuses are inaccurate. This

26

proposition appears to be rooted in a response in the answer where Defendants admit

27

that the censuses “contain inaccuracies.” (See Answer ¶ 76.) Censuses “contain[ing]

28

inaccuracies” is very different from stating that the censuses are “inaccurate.” The
- 19 -

11cv2276

1

former is an assessment of the censuses’ components whereas the latter is an

2

assessment of the censuses as a whole. Plaintiffs fail to identify evidence suggesting

3

that the censuses are inaccurate in their entirety.

4

In their reply, Plaintiffs elaborate that the “censuses are inherently flawed”

5

because “Jose Alto was reported the same age, age 50, on the 1907, 1908 and 1910

6

censuses.” (Pls.’ Reply 4:1–5.) Now it may be fair to conclude that the censuses are

7

inherently flawed for the purposes of determining a member’s age, particularly Jose

8

Alto’s. However, Plaintiffs fail to persuade the Court that that “flaw” permeates to

9

other aspects of the censuses, such as the Band’s members at the time of the censuses

10

were conducted.

11

Reviewing the censuses from 1907 through 1912, though there are

12

inconsistencies in some members’ ages, there are none identified with respect to the

13

composition of Jose and Maria Alto’s nuclear family. The 1907 census indicates that

14

the family consisted of Jose Alto, Maria Alto, and Frank Alto; Marcus Alto, Sr. is not

15

listed even though he was allegedly born in 1905.13 (AR 2576.) The same family

16

members are listed in each census from 1908 through 1913 indicating Jose Alto as

17

husband, Maria Alto as wife, and Frank Alto as son, but without any mention of

18

Marcus Alto, Sr.

19

inaccuracies regarding members’ ages existing throughout these censuses, the censuses

20

are nonetheless incredibly consist with respect to the family consisting of Jose Alto,

21

Maria Alto, and Frank Alto without any mention of Marcus Alto, Sr. Any inaccuracies

22

regarding age do not negate the entirety of each census from 1907 through 1912,

23

including the cornerstone of lineal descendancy for the San Pasqual Band, the 1910

24

census.

(AR 2581, 2541, 2597, 2602, 2605, 2376.)

Despite likely

25
26
27
28

13

Like several other facts in this case, Marcus Alto, Sr.’s birth year remains a point of
contention. Plaintiffs take the position that he was born in 1905. (FAC ¶ 82.) Based on that
allegation, Plaintiffs must admit that Marcus Alto, Sr. was alive at the time each census was conducted
from 1907 through 1912.
- 20 -

11cv2276

1

The consistency throughout these censuses is also significant. Repeatedly,

2

throughout a span of seven years, Jose and Maria Alto had the opportunity to identify

3

their progeny, and they did, repeatedly identifying Frank Alto as their son. If Marcus

4

Alto, Sr. was indeed the biological child of Jose and Maria Alto, presumably he would

5

have been treated the same as Frank Alto. But he was not. From that, the Assistant

6

Secretary reached a reasonable and sound conclusion that Marcus Alto, Sr. was not

7

Jose and Maria Alto’s biological son.

8

In contrast to the seven censuses from 1907 through 1912, the 1920 U.S. census

9

apparently indicates Marcus Alto, Sr. as “Indian” and the son of Jose and Maria Alto.14

10

To reconcile the 1920 census with the censuses from 1907 through 1912, the Assistant

11

Secretary found “the adoption theory to be the most logical explanation for the fact that

12

Marcus Alto is not listed with his parents on the Indian censuses, but does appear on

13

the Federal census of 1920.” (AR 1151.) The suggestion appears to be that sometime

14

between the 1907-1912 censuses and the 1920 census, Jose and Maria Alto adopted

15

Marcus Alto, Sr. (See id.) Another possibility is that Jose and Maria Alto treated the

16

BIA censuses differently as relating specifically to tribe members compared to the 1920

17

U.S. census conducted by the federal government. These possibilities are also

18

consistent with the Assistant Secretary’s conclusion. Though less than ideal in clarity,

19

the Assistant Secretary’s “path may reasonably be discerned.” See Arlington, 516 F.3d

20

at 1112 (A court must “uphold a decision of less than ideal clarity if the agency’s path

21

may reasonably be discerned[.]”). Because this factual determination is supported by

22

the administrative record, the determination and the decision will be given substantial

23

deference. See Arkansas, 503 U.S. at 112; Bayliss, 427 F.3d at 1214 n.1.

24

//

25
26
27
28

14

The Court reviewed the 1920 census documents submitted. (AR 1807, 1983.) It was unable
to locate the precise text indicating Jose Alto, Maria Alto, Frank Alto, and Marcus Alto, Sr. due to the
low quality of the document scanned, but will presume the names are present given that all parties
agree that the names are indeed present in the 1920 census.
- 21 -

11cv2276

1

The last point Plaintiffs present is that the Assistant Secretary “failed to address

2

the Band’s hired anthropology expert’s evidence.” (Pls.’ Mot. 12:1–8.) Specifically,

3

Plaintiffs argue that the Assistant Secretary failed to consider information in the 121st

4

footnote in an April 2010 report prepared by Christine Grabowski, Ph.D., which

5

purportedly identifies “several children born to other San Pasqual tribal members,

6

between 1897 and 1903, who were NOT identified on the San Pasqual censuses[.]”

7

(Id.)

8

The footnote Plaintiffs identify appears in a portion of the report examining what

9

certain individuals living in Riverside County in 1910 “knew about Marcus Alto’s

10

parentage.” (AR 1047.) The footnote is associated with the following paragraph:

13

Carolina Benson’s children by both Jose Castro and
Augustin Orosco and their spouses appeared repeatedly in
the baptismal records of the St. Francis de Sales Church.
Not only did they have several children between all of them,
but they served as sponsors for each other’s offspring.

14

(AR 1048.) The footnote itself provides examples of Carolina Benson’s family

15

members serving as sponsors for each other’s offspring. (Id.) There is no mention of

16

who appeared or did not appear in relevant censuses. At best, the portion of the report

17

relevant to the footnote is an examination of the close ties between certain families

18

reflected in baptismal records. (See id.) But more accurately, Plaintiffs grossly

19

mischaracterize the footnote in the expert report, and the Assistant Secretary acted

20

reasonably in not addressing it. See Ron Peterson Firearms, 760 F.3d at 1165 (quoting

21

10 Ring Precision, 722 F.3d at 724) (Agencies are not required to “consider every

22

alternative proposed nor respond to every comment made. Rather, an agency must

23

consider only ‘significant and viable’ and ‘obvious’ alternatives.”).

11
12

24
25

2.

Credibility of Certain Affidavits and Testimonial Evidence

26

In the 2011 Decision, the Assistant Secretary found that “the testimonial

27

evidence contained in affidavits by tribal elders, tribal enrollment committee members,

28

close acquaintances of Maria Duro Alto and Marcus Alto, and especially anthropologist
- 22 -

11cv2276

1

Florence Shipek, Ph.D., to be very credible and probative respecting Marcus’s status

2

as biological or adoptive son of Jose and Maria Duro Alto.” (AR 1138.) The

3

collection of affidavits considered by the Assistant Secretary included three affidavits

4

from 1994 and six others from 2004. (AR 1150-51.) Focusing primarily on statements

5

by Felix Quisquis, Mellie Duenas, Florence C. Shipek, Ph.D., and Helen Mendez,

6

Plaintiffs appear to argue that the Assistant Secretary’s reliance on testimonial evidence

7

is arbitrary and capricious because it “contain[s] hearsay, lacks foundation and [is]

8

contradicted by the Band’s other evidence.” (Pls.’ Mot. 13:1–10.)

9

It is a “well-settled rule that agencies are not bound by strict rules of evidence

10

in cases brought under the Administrative Procedure Act.” Villegas-Valenzuela v.

11

Immigration & Naturalization Serv., 103 F.3d 805, 812 (9th Cir. 1996). Rather, “the

12

Administrative Procedure Act provides that ‘[a]ny oral or documentary evidence may

13

be received, but every agency shall as a matter of policy provide for the exclusion of

14

irrelevant, immaterial, or unduly repetitious evidence.’” Calhoun v. Bailar, 626 F.2d

15

145, 148 (9th Cir. 1980) (quoting 5 U.S.C. § 556(d)). “A sanction may not be imposed

16

or rule or order issued except on consideration of the whole record or those parts

17

thereof cited by a party and supported by and in accordance with the reliable, probative,

18

and substantial evidence.” Id. (quoting 5 U.S.C. § 556(d)) (internal quotation marks

19

omitted).

20

“[T]he classic exception to strict rules of evidence in the administrative context

21

concerns hearsay evidence.” Calhoun, 626 F.2d at 148. “Not only is there no

22

administrative rule of automatic exclusion for hearsay evidence, but the only limit to

23

the admissibility of hearsay evidence is that it bear satisfactorily indicia of reliability.”

24

Id. The test for admissibility requires “that the hearsay be probative and its use

25

fundamentally fair.” Id. “[I]t is not the hearsay nature per se of the proffered evidence

26

that is significant, it is its probative value, reliability and the fairness of its use that are

27

determinative.” Id.

28

//
- 23 -

11cv2276

1

The Assistant Secretary noted that Dr. Shipek is “an anthropologist who worked

2

closely with the Band in establishing its base roll” who “described her careful research

3

into the ancestry of the San Pasqual Band, and her work with tribal elders.” (AR 1150.)

4

In her affidavit, Dr. Shipek noted, among other things, that she “met with all the band

5

elders and each provided [her] with a written list of ancestors and children,” “searched

6

the records of San Diego Mission, St. Josephs [sic] Cathedral, and Holy Trinity Church

7

for baptismal, marriage and death records of all persons having those names as written,

8

or by other potential spellings (by pronunciation) and also by translations back into

9

Kumeyaay names, or transliterations of the Kumeyaay names,” and “examined San

10

Pasqual Valley school records, the County tax assessor records, county birth, marriage

11

and death records, voter registration records, country court records, and available

12

written reminiscences.” (AR 2195.) Dr. Shipek’s research led her to the conclusion

13

that Jose Alto and Maria Duro Alto “had no children but had raised one belonging to

14

a non-Indian family.” (AR 2195-96.) The thoroughness of Dr. Shipek’s research

15

strongly supports the Assistant Secretary’s determination that her affidavit was

16

probative, reliable, and fair to use. See Calhoun, 626 F.2d at 148.

17

It is worth reiterating that the Assistant Secretary found the affidavits “very

18

credible and probative” as they related to Marcus Alto, Sr.’s “status as biological or

19

adoptive son of Jose and Maria Duro Alto.” (See AR 1138.) However, the credibility

20

challenges to the remaining affidavits are mostly critical of affiant assertions that are

21

not relevant to Marcus Alto, Sr.’s lineage. For example, Plaintiffs challenge Felix

22

Quisquis’ credibility on the basis that there was a discrepancy regarding his age (Pls.’

23

Mot. 13:1–10), Mellie Duenas on the basis that there was a discrepancy regarding her

24

address (Pls.’ Mot. 13:11–18), and Mary Alto Arviso and Laura Guidry on the basis of

25

their ancestry (Pls.’ Mot. 13:19–14:13; Pls.’ Reply 8:1–15).

26

considerations may weigh against finding a particular affidavit credible, they do not

27

necessitate that conclusion. Rather, the fact finder—the Assistant Secretary in this

28

case—weighs various considerations to determine credibility. With respect to these
- 24 -

Though these

11cv2276

1

remaining affidavits, given that these considerations Plaintiffs identify are not relevant

2

to Marcus Alto, Sr.’s lineage, the Assistant Secretary acted reasonably in determining

3

the affidavits were credible for the purpose of determining whether Marcus Alto, Sr.

4

is the biological or adoptive son of Jose Alto and Maria Alto.

5

Plaintiffs also challenge statements that it was “common knowledge” Marcus

6

Alto, Sr. was non-Indian in two ways: (1) those making statements asserting this

7

“common knowledge” lacked personal knowledge and other foundational facts; and (2)

8

“common knowledge” is not probative or reliable evidence. With respect to the

9

assertions regarding personal knowledge and foundation, Plaintiffs attempt to strictly

10

apply the rules of evidence by invoking foundation requirements. As discussed above,

11

agencies are not bound by such a strict application of the rules of evidence for cases

12

brought under the APA. See Villegas-Valenzuela, 103 F.3d at 812. Rather, the

13

applicable standard is whether the evidence is irrelevant, immaterial, or unduly

14

repetitious. See Calhoun, 626 F.2d at 148. Plaintiffs fail to demonstrate that the

15

evidence identified making references to “common knowledge” is irrelevant,

16

immaterial, or unduly repetitious. See id.

17

Plaintiffs’ assertion that “common knowledge” is not probative or reliable

18

evidence sounds more in hearsay. They explain that “[c]ommon knowledge can be

19

based on a rumor that if repeated enough times can appear to be the truth[,]” and

20

“[r]umor is proof of no fact.” (Pls.’ Reply 7:5–19.) This criticism appears to be

21

directed at the nature of common knowledge being rooted in rumor, which in turn

22

derives from repetition of the statement that Marcus Alto, Sr. was not “Indian” and

23

adopted. (See id.) That is indeed hearsay. But the test for admissibility in the

24

administrative setting is whether the hearsay evidence is probative and its use is

25

fundamentally fair. See Calhoun, 626 F.2d at 148. Plaintiffs fail to demonstrate that

26

the affidavits making reference to common knowledge lack probative value or are not

27

fundamentally fair. See id. If Plaintiffs did not mean for this challenge to sound in

28

hearsay, the defective reasoning previously discussed remains—the criticisms directed
- 25 -

11cv2276

1

at these affidavits are simply not relevant to Marcus Alto, Sr.’s lineage. (See Pls.’

2

Reply 7:5–19.)

3
4

3.

Weight of DNA Evidence

5

Plaintiffs make the following argument directed at the apparent disconnect

6

between the determination that Marcus Alto, Sr. is “non-Indian” and the DNA evidence

7

indicating Native American ancestry:

8
9
10
11
12
13
14

The AS-IA acknowledged the affidavits gave credence to the
“adoption theory” because they stated that Marcus Alto Sr.
was “‘Mexican, not Indian.” The AS-IA found that many “of
the affidavits note that Marcus Alto was non-Indian and the
child of a different family not just a different mother.” As
emphasized, these statements were entitled to no weight and
certainly not “substantial weight.”
In finding the adoption theory probable, the AS-IA failed to
give any weight to public record documents establishing that
Marcus Alto Sr. publicly identified himself as “Indian” and
DNA evidence that establishes that Raymond E. Alto has
30-percent Native American ancestry.

15

(Pls.’ Mot. 15:8–18 (citations omitted) (emphasis in original).)

In response,

16

Defendants explain that “Plaintiffs[] mistakenly rely on DNA testing that shows a

17

descendant of the Alto family ‘has 30-percent Native American ancestry,’ possible only

18

if Marcus was a full-blood Indian as Plaintiffs theorize.” (Defs.’ Mot. 2716–28:5.)

19

The Assistant Secretary rejected Plaintiffs’ argument that DNA markers

20

indicating Native-American ancestry supports a finding that Marcus Alto, Sr. was of

21

San Pasqual ancestry for two reasons. (AR 1155.) The first reason was that the “type

22

of genetic testing relied on . . . does not provide accurate data on the proportion of

23

Indian ancestry.” (Id.) To support that reason, the Assistant Secretary cited to the

24

Office of Federal Acknowledgment’s explanation that “[u]nlike blood degree

25

calculations, the proportion[s] of the DNA markers tracked in such ethnicity testing are

26

not passed to children with predictable mathematical precision[,]” such that “[t]he child

27

of a father with 50 percent ‘Native American’ markers and a mother with no ‘Native

28

American’ markers does not have 25 percent ‘Native American’ markers.” (Id.) The
- 26 -

11cv2276

1

Assistant Secretary’s second reason was that DNA results do not indicate whether the

2

Native-American markers are the result from San Pasqual Indian lineage or another

3

tribe. (Id.) These explanations adequately and reasonably addressed why the Assistant

4

Secretary chose not to rely on DNA evidence.

5

Plaintiffs’ challenge regarding the Assistant Secretary’s failure to give any

6

weight to documents establishing that Marcus Alto, Sr. publicly identified himself as

7

“Indian” is not supported by the record. To support this proposition, Plaintiffs direct

8

the Court’s attention to several documents in the administrative record. (Pls.’ Mot.

9

15:8–18 (citing AR 473, 487, 490, 1985, 2431, 2635).) The first document cited is the

10

1920 federal census, but this is not necessarily Marcus Alto, Sr. himself publicly

11

identifying himself as “Indian.” (AR 2431.) Even if the Assistant Secretary construed

12

the 1920 federal census as Marcus Alto, Sr.’s self-identification that he is “Indian,” the

13

Assistant Secretary already reconciled the 1920 federal census with the earlier censuses

14

finding that the consideration of all the censuses is consistent with the adoption theory.

15

(See AR 1151.) Several of the other documents identified face similar defects in that

16

they are not statements made directly from Marcus Alto, Sr. himself. (See AR 473,

17

487, 2431.)

18

There are, however, two documents—a marriage certificate and a social-security

19

document—where Marcus Alto, Sr. indeed identified himself as “Indian.” (AR 490,

20

2635.) In their reply, Plaintiffs characterize the value of these documents as a

21

reliability issue. (Pls.’ Reply 8:16–9:13.) They contend that the aforementioned

22

documents, including the 1920 federal census, corroborate the two documents where

23

Marcus Alto, Sr. self-identified himself as “Indian,” thereby providing greater

24

reliability. (See id.) Though Plaintiffs’ point may have merit, courts “must defer to a

25

reasonable agency action ‘even if the administrative record contains evidence for and

26

against its decision.’” Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1036 (9th

27

Cir. 2010) (quoting Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009)). There

28

is ample evidence in the administrative record supporting the Assistant Secretary’s
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1

credibility determination, such as early census records and affidavits, among many

2

others, and weight given to certain evidence to reach the conclusion that Marcus Alto,

3

Sr. is not a San Pasqual lineal descendant. From that, the Assistant Secretary’s

4

reasoning can be easily discerned linking his conclusion to the factual findings, and

5

thus, the conclusion warrants deference. See Arkansas, 503 U.S. at 112; Bayliss, 427

6

F.3d at 1214 n.1; Arlington, 516 F.3d at 1112 (A court must “uphold a decision of less

7

than ideal clarity if the agency’s path may reasonably be discerned[.]”).

8

4.

9

Weight Given to Maria Duro’s “No Issue” Statement

10

Maria Duro Alto’s enrollment application showed “no issue” in the space for

11

providing information regarding the applicant’s children. (AR 1152.) She also

12

identified her husband as a full-blood Indian. (Id.) While considering the impact of

13

Maria Alto’s application, the Assistant Secretary noted “disturbing inconsistencies,”

14

but ultimately rejected the contention that the “no issue” statement lacked credibility.

15

(AR 1152-53.)

16

Two reasons informed the Assistant Secretary’s conclusion. First, he determined

17

that being able to neither read nor write did not establish whether Maria Alto spoke

18

and understood English. (AR 1153.) Based on information contained in the 1920

19

federal census, the Assistant Secretary found Maria Alto indeed spoke English,

20

suggesting that she understood the meaning of not only the question regarding her

21

children in the application but also her “no issue” response. (Id.) And second, under

22

the premise that “the distinction between ‘child,’ which term applies to both biological

23

and adopted children, and ‘issue,’ which does not, is a matter of great importance to all

24

parents[,]” the Assistant Secretary determined that “Maria Duro Alto would pay

25

scrupulous attention to that distinction is perfectly consistent with the theory that she

26

adopted Marcus Alto and was careful not to identify a ‘child’ who did not qualify as

27

an Indian.”

28

importance of the application question and her answer. (See id.) Accordingly, the

(Id.)

Based on these determinations, Maria Alto understood the

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Assistant Secretary concluded that “Maria Duro’s application contains a statement that

2

precludes Marcus Alto from being Maria Duro’s biological son, sworn by two

3

witnesses.” (Id.)

4

Plaintiffs challenge this finding on the grounds that the issue was “already

5

addressed, considered and rejected in the April 10, 1995 decision[,]” and the existence

6

of conflicting evidence. (Pls.’ Mot. 15:23–16:13; Pls.’ Reply 10:9–18.) The former

7

is essentially a preclusion argument, which the Court already rejected above. More

8

importantly, it grossly misstates what was determined in the 1995 Decision. As

9

Defendants accurately point out, the “no issue” statement is not mentioned anywhere

10

in the 1995 Decision, and as a consequence, was not an factor rejected or even

11

considered in the 1995 Decision. (See AR 1516-18.)

12

The latter challenges the Assistant Secretary’s ability to weigh evidence and

13

make credibility determinations. However, the existence of conflicting evidence alone

14

does not categorically negate the value of other evidence. It is worth repeating that the

15

administrative record “consists of all documents and materials directly or indirectly

16

considered by agency decision-makers and includes evidence contrary to the agency’s

17

positions.” Thompson, 885 F.2d at 555 (emphasis in original). And “[a]gencies are not

18

required to consider every alternative proposed nor respond to every comment made.”

19

Ron Peterson Firearms, 760 F.3d at 1165. Courts “must defer to a reasonable agency

20

action ‘even if the administrative record contains evidence for and against its

21

decision.’” Modesto Irrigation, 619 F.3d at 1036 (quoting Trout Unlimited, 559 F.3d

22

at 958).

23

What is important is not the existence of conflicting evidence, but rather the

24

existence of evidence supporting the agency’s reasoning. See Modesto Irrigation, 619

25

F.3d at 1036; Arlington, 516 F.3d at 1112. That said, the Assistant Secretary addressed

26

the fact that there is conflicting evidence in the administrative record and thoroughly

27

explained his reasoning to reach the determination that Maria Alto’s “no issue”

28

statement in her enrollment application was credible. (See AR 1153.) This is not a
- 29 -

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1

situation where a determination was less than ideal in clarity. See Arlington, 516 F.3d

2

at 1112. There is clear evidence that rationally and reasonably connects the evidence

3

in the administrative record to the Assistant Secretary’s finding. See id.

4
5

5.

Marcus Alto, Sr.’s Birth Year

6

Recognizing that the “record is quite conflicted as to the year of Marcus Alto’s

7

birth,” the Assistant Secretary identified several documents that may assist in

8

determining Marcus Alto, Sr.’s birth year. (AR 1148-49.) Documents considered

9

included San Pasqual membership-roll records, social-security records, documents

10

filled out by Marcus Alto, Sr., the birth certificate of one of Marcus Alto, Sr.’s children,

11

and Marcus Alto, Sr.’s marriage certificate, among others. (Id.) Reiterating that “there

12

seems to be little certainty respecting the year in which Marcus Alto, Sr., was born,”

13

the Assistant Secretary found that Marcus Alto, Sr. was born in 1907. (AR 1149.) The

14

Assistant Secretary explained that any claims to have been born in different years was

15

“rationally explained as reflecting his desire to hide the fact he was under-aged at the

16

time of his marriage.” (Id.)

17

Plaintiffs argue that the Assistant Secretary’s conclusion regarding Marcus Alto,

18

Sr.’s birth year is arbitrary and capricious because he ignored evidence, improperly

19

gave weight to others, and failed to explain why certain evidence “had no relevance.”

20

(Pls.’ Mot. 16:17–17:24.)

21

Plaintiffs fail to provide any legal authority requiring the Assistant Secretary to

22

specifically identify every issue or every fact raised by the parties. More importantly,

23

the Court already rejected this line of reasoning, most recently in discussing the weight

24

given to Maria Duro’s “no issue” statement.

25

In reaching the conclusion that Marcus Alto, Sr. was born in 1907, perhaps the

26

Assistant Secretary did not explain every nuance in his reasoning to a level satisfying

27

Plaintiffs. But that is not the applicable standard. The evidence that Plaintiffs identify

28

is part of the administrative record, and as such, it is presumed to have been
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1

considered—directly or indirectly—by the Assistant Secretary. See Thompson, 885

2

F.2d at 555. At worst, the lack of a specific explanation addressing the evidence

3

identified by Plaintiffs is a finding that has “less than ideal clarity.” See Arlington, 516

4

F.3d at 1112.

5

What is important is not the existence of conflicting evidence, but rather the

6

existence of evidence supporting the agency’s reasoning. See Modesto Irrigation, 619

7

F.3d at 1036; Arlington, 516 F.3d at 1112. The Assistant Secretary provided a more

8

than adequate explanation of his reasoning, referencing documents that corroborate his

9

conclusion while also addressing the other possible birth years. (See AR 1148-49.)

10

Like the finding regarding Maria Duro’s “no issue” statement, this is not a situation

11

where a determination was less than ideal in clarity. See Arlington, 516 F.3d at 1112.

12

There is clear evidence that rationally and reasonably connects the evidence in the

13

administrative record to the Assistant Secretary’s finding. See id.

14
15

6.

Frank Alto’s “Corroborative” Letter

16

In the 2011 Decision, the Assistant Secretary determined that “[c]orroborative

17

evidence that Marcus Alto was a non-tribal member being raised by Jose and Maria

18

Alto is found in two letters from Frank Alto, drafted in 1910, identifying Jose, Maria,

19

and himself as tribal members, but not mentioning Marcus Alto.” (AR 1154.)

20

Plaintiffs argue that this determination regarding to the corroborative value of these

21

two letters is arbitrary and capricious based on the speculation of an anthropologist

22

expert and Plaintiffs’ opinion that the signatures on the two Frank Alto letters are

23

“substantially different.” (Pls.’ Mot. 18:4–23; Pls.’ Reply 6:10–21.)

24

To the extent Plaintiffs argue the Assistant Secretary ignored or failed to assign

25

the appropriate weight to the anthropology expert’s speculation, the Court has already

26

rejected similar arguments, and based on the same reasoning, rejects this one as well.

27

See Thompson, 885 F.2d at 555; Modesto Irrigation, 619 F.3d at 1036; Arlington, 516

28

F.3d at 1112. The same reasoning also applies to Plaintiffs’ criticism of the weight the
- 31 -

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1

Assistant Secretary gave to the two letters written by Frank Alto. See id. The Assistant

2

Secretary adequately explained the value of the letters in the greater context of other

3

“documentary evidence from the time of Marcus Alto’s childhood support[ing] the

4

conclusion that the reason Marcus Alto was not listed on the early San Pasqual

5

censuses was because an explicit, contemporaneous determination had been made that

6

the child being raised by Jose and Maria was not their biological child.” (See AR

7

1154.) This reason alone is sufficient to affirm the Assistant Secretary’s determination

8

because there is clear evidence that rationally and reasonably connects this conclusion

9

to evidence in administrative record. See Arlington, 516 F.3d at 1112.

10

Even if the Court entertains the substance of Plaintiffs’ challenge to the validity

11

of the two letters based on their opinion that the signatures are “substantially different,”

12

the conclusion would remain the same. Comparing the two letters, it is not clear that

13

the signatures differ substantially. (See AR 154, 2707.) More importantly, the contents

14

of the two letters are largely similar, if not identical. (Cf. AR 154, 2707.) It is difficult

15

to read one of the letters (AR 154) because of the degraded quality, but from what the

16

Court can glean, the letters appear to be written by the same person. In particular, both

17

letters end with the seemingly unique valediction “With best wishes to you I remain”

18

followed by the signature. (AR 154, 2707.) The comprehensive index to the

19

administrative record, which Plaintiffs submit as an exhibit to their motion, only

20

confirms as much, stating that the letters are different versions of the same letter. (AR

21

5.) The index does not, as Plaintiffs asserted during oral argument, recognize the

22

signatures as being different, let alone “substantially different.”

23

Consequently, Plaintiffs’ attack based on the respective signatures of the two letters

24

lacks merit.

25

//

26

//

27

//

28

//
- 32 -

(See id.)

11cv2276

7.

1

Marcus Alto, Sr.’s Biological Father

2

For the final factual challenge, Plaintiffs argue that the Assistant Secretary’s

3

finding that Jose Alto is not Marcus Alto, Sr.’s biological father is arbitrary, capricious,

4

clear error, and an abuse of discretion. (Pls.’ Mot. 18:27–20:3.) Plaintiffs’ challenge

5

is made in two forms. The first applies preclusion principles, contending that a

6

determination regarding Marcus Alto, Sr.’s parentage in the 1995 Decision precludes

7

the one made in the 2011 Decision. (Id. at 18:27–19:14.) And the second is summed

8

up in Plaintiffs’ remark that the Assistant Secretary “did not make a rational connection

9

to the agency record evidence in concluding that some other ‘Jose Alto’ was Marcus

10

Alto Sr.’ biological father.” (Id. at 19:15–20:3.)

11

In the 2011 Decision, the Assistant Secretary found that Marcus Alto, Sr.’s

12

adoptive father is not his biological father. (AR 1153.) The starting point of the

13

Assistant Secretary’s analysis was Marcus Alto, Sr.’s 1907 baptismal certificate, which

14

lists his parents as Jose Alto and Benedita Barrios.15 (AR 1153, 1513-14.) Even

15

though Jose Alto is the name of the father who reared Marcus Alto, Sr., the Assistant

16

Secretary concluded that the Jose Alto listed on the 1907 baptismal record is not the

17

same Jose Alto who reared Marcus Alto, Sr. (AR 1153-54.) To reach that conclusion,

18

the Assistant Secretary wrestled with two plausible theories: (1) “the certificate is

19

referring to a different Jose Alto,” based on evidence in the record that there were “a

20

number of Jose Altos residing in the area at the time of Marcus’s baptism”; and (2) “the

21

‘father’ named on the certificate is not really the biological father.” (Id.) Relying on

22

early census records, the two 1910 Frank Alto letters, and affidavit testimony where

23

Marcus Alto, Sr. “is said to have admitted he was ‘adopted’ and ‘not Indian,’” the

24
25
26
27
28

15

The 1907 baptismal certificate is for Robert Marco Alto. (AR 1513-14.) The Assistant
Secretary addressed the obvious disconnect between the name listed in the baptismal certificate and
Marcus Alto, Sr.’s name. (AR 1149.) Upon reviewing certain documents in the record, including a
1925 marriage certificate and a 1925 baptismal certificate for one of Marcus Alto, Sr.’s children, the
Assistant Secretary concluded that the evidence taken together supported the conclusion that the 1907
baptismal certificate is for Marcus Alto, Sr. (Id.) This finding is not in dispute.
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1

Assistant Secretary ultimately concluded that the Jose Alto who reared Marcus Alto,

2

Sr. is not his biological father. (Id.)

3

Turning now to Plaintiffs’ challenge, the Court rejects Plaintiffs’ preclusion

4

argument for the same reasons previously discussed in this order. The policy

5

recognizing a tribe’s right to define its own membership for tribal purposes and the

6

federal policy favoring tribal self-government in addition to the fact that 1995 Decision

7

and the 2011 Decision are based on different regulations led this Court to conclude that

8

strictly applying preclusion principles to these two agency decisions would be

9

inappropriate. See Lasky, 600 F.2d at 768. That same holds true under these

10

circumstances.

11

Plaintiffs’ substantive challenge is understandable and reasonable. The father’s

12

name listed on the 1907 baptismal certificate is Jose Alto, and the father who

13

undisputably reared Marcus Alto, Sr. is also named Jose Alto. Plaintiffs diligently

14

identify evidence throughout the administrative record that supports their proposition

15

that the Jose Alto listed on the 1907 baptismal certificate is the same as the Jose Alto

16

who reared Marcus Alto, Sr. (See Pls.’ Mot. 19:15–20:3.) That evidentiary support

17

includes the 1920 U.S. census listing Marcus Alto, Sr. as the “Indian” son of Jose and

18

Maria Alto (AR 2431); Marcus Alto, Sr.’s marriage certificate stating he is “Indian”

19

and his father is Joseph Alto who is “San Pasqual” (AR 2635); and several other

20

documents demonstrating the same. (Pls.’ Mot. 19:15–20:3.) However, what is

21

important is not the existence of conflicting evidence or evidence supporting an

22

alternative conclusion, but rather the existence of evidence supporting the agency’s

23

reasoning. See Modesto Irrigation, 619 F.3d at 1036; Arlington, 516 F.3d at 1112.

24

Courts “must defer to a reasonable agency action ‘even if the administrative

25

record contains evidence for and against its decision.’” Modesto Irrigation, 619 F.3d

26

at 1036 (quoting Trout Unlimited, 559 F.3d at 958). The Assistant Secretary noted that

27

important evidence was unavailable to determine whether the Jose Alto who reared

28

Marcus Alto, Sr. was his biological father, and even acknowledged “the fact that ‘Jose
- 34 -

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1

Alto’ is the name given as the child’s father on the baptismal certificate and is also the

2

name of the man who raised the child establishes a strong presumption that the two are

3

the same.” (AR 1153.)

4

Recognizing the incomplete record and his own initial impressions, the Assistant

5

Secretary thoroughly explained how the evidence in the record rebutted the

6

presumption established by the baptismal certificate, with “[t]he most telling evidence

7

in the record rebutting Jose Alto as Marcus Alto’s biological father [being] the early

8

BIA Indian censuses.” (AR 1153-54.) He went on to explain:

14

From 1907 through 1913, during which time Marcus Alto
was undisputedly residing with Jose Alto and Maria Duro
Alto, these censuses invariably identify Jose, Maria, and
Jose’s son, Frank Alto as tribal members and never list
Marcus Alto. This fact cannot be written off as oversight;
the entire purpose for taking these censuses was to identify
and enumerate the people who were members of the San
Pasqual Indians. And while there are not many young
children included on these censuses, there certainly are
some, rebutting any argument that Marcus Alto was too
young for admission.

15

(AR 1154.) The Assistant Secretary supported his conclusion further by citing

16

corroborative evidence—the two Frank Alto letters drafted in 1910—that is consistent

17

with census information indicating the nuclear family as including Jose Alto, Maria

18

Duro Alto, and Frank Alto, but not Marcus Alto, Sr. (Id.) Whether or not this Court

19

agrees with the ultimate conclusion, the logic of this explanation—particularly, the

20

weight given to the early Indian censuses as playing a foundational role in establishing

21

the tribal membership roll—is transparent, reasonable, and supported by the

22

administrative record. See Arkansas, 503 U.S. at 112; Bayliss, 427 F.3d at 1214 n.1.

23

The Assistant Secretary also identified “affidavit testimony refuting a biological

9
10
11
12
13

24

connection between Marcus Alto and Jose Alto”:

25

//

26

//

27

//

28

//
- 35 -

11cv2276

6

It may well be true that people would refer to Marcus as
“adopted” by Maria and Jose even if his biological parents
were Jose and Benedita Barrios. But much of the testimony
in the record is more specific. Many of the affidavits note
that Marcus Alto was non-Indian and the child of a different
family, not just a different mother. In particular, the 1994
affidavit of Dr. Shipek sets out unambiguously that “each
elder maintained that Maria Duro Alto and her husband Jose
Alto had no children but raised one belonging to a nonIndian family.”
(AR 1154.) Dr. Shipek’s long history working with and studying the San Pasqual Band

7

is confirmed throughout the administrative record. (See AR 2100-34, 2186-89, 2191-

8

92, 2195-96.) Even Dr. Grabowski’s June 2008 analysis relied heavily on Dr. Shipek’s

9

research. (AR 2058-89.) It comes as no surprise that Dr. Shipek’s thorough research

1
2
3
4
5

10

would be given considerable weight by the Assistant Secretary.

11

Even though the administrative record contains evidence supporting Plaintiffs’

12

position against the findings in the 2011 Decision, the Assistant Secretary’s conclusion

13

is a reasonable product derived from that evidence in the administrative record. See

14

Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687 (9th Cir. 2007).

15

As a result, the Court must defer to the Assistant Secretary’s conclusion despite the

16

existence of evidence against that conclusion. See Modesto Irrigation, 619 F.3d at

17

1036.

18
19

IV.

CONCLUSION & ORDER

20

Plaintiffs’ frustration is understandable. The record strongly suggests that the

21

San Pasqual Band has engaged in a relentless battle to disenroll Marcus Alto, Sr. and

22

his descendants from the very beginning. For the most part, that battle appeared to be

23

one that Plaintiffs were winning all the way up to the Regional Director’s November

24

2008 decision. (AR 1267-75.) Then suddenly, in a complete about face, the Assistant

25

Secretary reversed the Regional Director’s decision, found in favor of the Band, and

26

followed the recommendation to disenroll Marcus Alto, Sr.’s descendants. (AR 1137-

27

56.)

28

//
- 36 -

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1

However, the Court’s role in this situation is “not to substitute its judgment for

2

that of the agency,” but rather to examine whether there is a “rational connection

3

between the facts found and the choice made” by the agency. Bonneville Power, 477

4

F.3d at 687 (quoting State Farm, 463 U.S. at 43) (internal quotation marks omitted).

5

The Assistant Secretary was tasked with the unenviable responsibility to review

6

thousands of pages in the administrative record, some of which are over a hundred

7

years old, and determining the membership status of the now-deceased Marcus Alto,

8

Sr.

9

unmentioned, potentially ignored, or devalued, but as the Court has repeatedly stated,

10

it “must defer to a reasonable agency action ‘even if the administrative record contains

11

evidence for and against its decision.’” Modesto Irrigation, 619 F.3d at 1036 (quoting

12

Trout Unlimited, 559 F.3d at 958). The failure to address the substantial deference

13

afforded to agency decisions—particularly for factual determinations—was a recurring

14

flaw in Plaintiffs’ reasoning. See Arkansas, 503 U.S. at 112; Melkonian, 320 F.3d at

15

1065.

Plaintiffs expend considerable effort to identify facts in the record either

16

Under the standard prescribed by 5 U.S.C. § 706(2)(A), which is highly

17

deferential to the agency, Plaintiffs fail to meet their burden to demonstrate that the

18

Assistant Secretary’s decision is in any way “arbitrary, capricious, an abuse or

19

discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); San

20

Luis & Delta-Mendota, 747 F.3d at 601. Plaintiffs also fail to demonstrate that the

21

Assistant Secretary’s decision is not supported by “substantial evidence.” See Love

22

Korean Church, 549 F.3d at 754; Bear Lake Watch, 324 F.3d at 1076. Upon this

23

Court’s review of the 2011 Decision, the Assistant Secretary articulated a rational

24

relationship between his factual findings and conclusions. See Fence Creek Cattle, 602

25

F.3d at 1132.

26

In light of the foregoing, the Court DENIES Plaintiffs’ motion for summary

27

judgment, and GRANTS Defendants’ cross-motion for summary judgment.

28

Accordingly, this Court affirms the Assistant Secretary’s 2011 Decision “revers[ing]
- 37 -

11cv2276

1

the decision made by the Pacific Regional Director on November 26, 2008” and

2

concluding that “the enrollment of the Marcus Alto Sr.[] descendants was based on

3

information subsequently determined to be inaccurate and, as a result, their names must

4

be deleted from the Band’s roll.” (See AR 1156.)

5

IT IS SO ORDERED.

6
7

DATED: September 30, 2015

8

Hon. Cynthia Bashant
United States District Judge

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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