Opinion
23-3978
12-04-2024
ELSIE BENALLY; FERN BENALLY; LUCILLE BENALLY; NORMAN BENALLY, Plaintiffs - Appellants, v. UNITED STATES OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION, an Administrative Agency of the United States, Defendant-Appellee.
NOT FOR PUBLICATION
Argued and Submitted November 4, 2024 Phoenix, Arizona
Appeal from the United States District Court for the District of Arizona, D.C. No. 3:22-cv-08100-DLR Douglas L. Rayes, District Judge, Presiding
Before: PAEZ, BERZON, and OWENS, Circuit Judges.
MEMORANDUM [*]
Elsie, Fern, Lucille, and Norman Benally (Plaintiffs) appeal the district court's grant of summary judgment in favor of the United States Office of Navajo and Hopi Indian Relocation ("ONHIR") and its denial of relocation benefits available under the Navajo-Hopi Settlement Act ("the Settlement Act"), Pub. L. No. 93-531, 88 Stat. 1712 (1974), to each of the Plaintiffs. We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand to the agency for further proceedings.
1. Under the Administrative Procedure Act, we review ONHIR's decision to determine if it was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" or "unsupported by substantial evidence." 5 U.S.C. § 706(2). An independent hearing officer ("IHO") "who rejects testimony for lack of credibility must offer a specific, cogent reason for the rejection." De Valle v. I.N.S., 901 F.2d 787, 792 (9th Cir. 1990) (quotation omitted). Further, the IHO "must make findings on the record and must support those findings by pointing to substantial evidence." Ceguerra v. Sec'y of Health &Hum. Servs., 933 F.2d 735, 738 (9th Cir. 1991). Adverse credibility findings "cannot be based on speculation and conjecture." Shire v. Ashcroft, 388 F.3d 1288, 1295 (9th Cir. 2004).
2. The IHO's adverse credibility findings as to Elsie, Fern, Norman, and their mother Mabel's testimony regarding Plaintiffs' grazing activities on the Hopi Partitioned Lands ("HPL") were not supported by substantial evidence. Specifically, the adverse credibility findings on their testimony about their grazing activities were based on speculation that broader contemporaneous circumstances in the former Joint Use Area-related to the Livestock Reduction Program, the expansion of mining operations, and Hopi enforcement of grazing permits- conflicted with Plaintiffs' reports of grazing on the HPL at the time each became head of household, and so rendered those reports not credible. But none of the circumstances relied upon necessarily made grazing on the HPL insignificant or unnecessary: The Livestock Reduction program was not shown to have resulted in the sale of all livestock; the mine expansion left areas of the HPL open to grazing; and there is no evidence in the record to suggest that the Hopis took concrete enforcement action against the Benallys during the relevant time period (i.e., the late 1970s and early-to-mid-1980s) because the family lacked grazing permits.
3. Where an adverse credibility determination is reversed, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citation omitted); see also Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir. 2009). We therefore reverse the district court's summary judgment, and we remand to the district court with instructions to remand the case to ONHIR for further proceedings to evaluate the credibility of all testimony on Plaintiffs' grazing activities and to make further determinations on each Plaintiff's eligibility for relocation benefits.
REVERSED AND REMANDED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.