[00:00:01] Speaker 04:
Good morning.

[00:00:02] Speaker 04:
May it please the court?

[00:00:04] Speaker 04:
My name is Barry Paisner.

[00:00:05] Speaker 04:
I represent John E. Fusen.

[00:00:08] Speaker 04:
I'd like to reserve three minutes for rebuttal.

[00:00:12] Speaker 04:
Thank you.

[00:00:15] Speaker 04:
Due to Mr. Fusen's health and age, he's unable to be here today.

[00:00:22] Speaker 04:
My argument has three key issues.

[00:00:25] Speaker 04:
The first one is that the hearing officer finding that Mr. Fusen was a legal resident of the Navajo partition land at the time of the passage of the act was not based on substantial evidence and is arbitrary and capricious.

[00:00:45] Speaker 04:
The second issue is the hearing officer's alternative finding.

[00:00:51] Speaker 04:
that if Mr. Fusen wasn't a legal resident of the Navajo Partition Land, I'll call that the NPL, if that's all right.

[00:01:02] Speaker 04:
He was a legal resident at his ex-wife's apartment, which was provided by her employer,

[00:01:16] Speaker 04:
And that was not based on substantial evidence and was arbitrary and capricious.

[00:01:23] Speaker 04:
The third area, our third issue is credibility.

[00:01:28] Speaker 04:
It is our position that the hearing officers finding all Mr. Fusen's witnesses as well as Mr. Fusen himself not credible was not based on substantial evidence.

[00:01:48] Speaker 04:
Johnny Fusen is a lifetime legal resident of the disputed lands, which is before Partition was called the Joint Use Area.

[00:02:01] Speaker 04:
We now call it the former Joint Use Area.

[00:02:05] Speaker 04:
He was a rancher, a lifetime rancher.

[00:02:09] Speaker 04:
The ranch, which was his grandfather's and his grandmother's, was the family ranch.

[00:02:20] Speaker 04:
It encompassed both the HPL, the Hopi Partition Land, and the Navajo Partition Land.

[00:02:29] Speaker 04:
They ranched it, they had sheep, they had grazing permits, and until the passage of the act, until after the passage of the act,

[00:02:39] Speaker 04:
The former joint use area was not partitioned.

[00:02:45] Speaker 04:
It was not fenced.

[00:02:47] Speaker 04:
So they freely went from what we now call the Hopi partition land to the Navajo partition land.

[00:02:57] Speaker 02:
So when did the Fusans diminish their herd so that they no longer had livestock on the land?

[00:03:08] Speaker 04:
When did that start?

[00:03:09] Speaker 02:
When did it end?

[00:03:10] Speaker 04:
When did it end?

[00:03:11] Speaker 04:
I am unsure when it ended, Your Honor.

[00:03:17] Speaker 02:
It ended... Well, can you say that they had any... Without that information in the record, how can you say that they had livestock in the Joint Use Area or in the Hopi Partition Area after December 1974?

[00:03:33] Speaker 04:
after 74.

[00:03:39] Speaker 04:
The tradition is the matriarch holds the grazing permit.

[00:03:44] Speaker 04:
So in 1974, Ms.

[00:03:49] Speaker 04:
Greyhair, the grandmother, the matriarch, was issued a grazing permit for, I believe, 370 sheep.

[00:03:58] Speaker 04:
The testimony is that Johnny,

[00:04:02] Speaker 04:
grazed and herded sheep during that time period.

[00:04:10] Speaker 04:
If you look at his older brother's testimony, he says that when he went off, off reservation to work, it was Johnny who grazed it.

[00:04:20] Speaker 02:
So there was testimony that there was a tragic accident and Mr. Fusen's sister or aunt, his sister?

[00:04:28] Speaker 02:
His aunt.

[00:04:30] Speaker 02:
His aunt died in this accident that happened in April 1974?

[00:04:34] Speaker 04:
Yes.

[00:04:36] Speaker 04:
April 9th, 1974.

[00:04:38] Speaker 02:
Okay, so early April 1974.

[00:04:40] Speaker 02:
And the partition date is December 22nd, 1974?

[00:04:43] Speaker 04:
That is the date of the passage of the Act.

[00:04:48] Speaker 04:
The partition took place afterwards, Your Honor.

[00:04:52] Speaker 02:
So I thought that there was testimony from Mr. Fusen's niece that the family

[00:05:02] Speaker 02:
I'm not sure what the term is when you release or diminish or call or reduce.

[00:05:07] Speaker 02:
Reduce.

[00:05:07] Speaker 04:
Livestock reduction.

[00:05:08] Speaker 02:
Reduction.

[00:05:09] Speaker 02:
They reduce their herd before April 74 and then after April 74.

[00:05:16] Speaker 02:
But there wasn't anything that said they still had sheep by December 74.

[00:05:20] Speaker 02:
Not that I could see.

[00:05:24] Speaker 04:
Well, I respectfully disagree, Your Honor.

[00:05:26] Speaker 04:
I think it's implicit in the

[00:05:31] Speaker 04:
in the record in the transcript that although they reduced the herd, that they were continuing to use the entire ranch for ranching.

[00:05:46] Speaker 04:
And it wasn't until September of 1975 when Johnny

[00:05:55] Speaker 04:
moved off to get a job with the Bureau of Indian Affairs in Winslow, Arizona, that the ranching ceased.

[00:06:06] Speaker 02:
But he also, if I recall this correctly, in forms that he submitted stated that he lived in Winslow from roughly 71 to 75 and didn't provide any clarification.

[00:06:20] Speaker 02:
It seemed to be that the forms that were submitted were inconsistent and a little bit confusing about where he was living and when.

[00:06:28] Speaker 04:
I agree, Your Honor.

[00:06:29] Speaker 04:
They are inconsistent.

[00:06:30] Speaker 04:
What he does say in his application is that he left

[00:06:35] Speaker 04:
the ranch, the HPL, in September of 1975 to seek employment.

[00:06:46] Speaker 04:
And that record is clear that that's from social security records.

[00:06:50] Speaker 04:
That is when he actually did find his first, I guess you'd call it, on the books, if you will, employment.

[00:07:01] Speaker 02:
I think- And he got married in 1971?

[00:07:04] Speaker 04:
Seventy one, yes ma'am.

[00:07:06] Speaker 02:
And I thought he indicated that the family had camps on the NPL and the HPL and that there were no structures on the NPL, which would tend to suggest he couldn't have lived there.

[00:07:22] Speaker 02:
He had to live on the HPL.

[00:07:24] Speaker 02:
But then later as he was cross-examined, he acknowledged that indeed there were structures on the NPL and there was other testimonies that substantiated there were structures on the NPL.

[00:07:33] Speaker 02:
And the family resided there.

[00:07:36] Speaker 04:
I think he did testify.

[00:07:37] Speaker 04:
At first, you've got to understand, Your Honor, when you're reading this, he's testifying 40 years after the fact.

[00:07:47] Speaker 04:
He was 30 years old in 1974.

[00:07:50] Speaker 04:
He's an old man 40 years later.

[00:07:54] Speaker 04:
He's a young man when it happened.

[00:07:56] Speaker 04:
He's an old man when he's testifying.

[00:07:59] Speaker 04:
He's a traditional Navajo.

[00:08:03] Speaker 04:
a chatty witness, gonna pull it out of him.

[00:08:08] Speaker 04:
He originally said, and I think the broader picture is the HPL was their main home.

[00:08:19] Speaker 04:
The NPL was the summer camp where they brought the sheep to in the summer.

[00:08:26] Speaker 04:
When his own attorney said, are you sure there was nothing up on the NPL?

[00:08:32] Speaker 04:
He said, well, there was a shack.

[00:08:36] Speaker 02:
And I know you have issues with the enumeration, but the enumeration listed residences for this family in both places and listed a number of people living at HPL and NPL.

[00:08:48] Speaker 02:
Or I guess the grandmother was listed at HPL and like 13 family members at NPL.

[00:08:53] Speaker 02:
which would suggest more than like a tool shed.

[00:08:56] Speaker 02:
There was a structure at which people were residing, whether Mr. Fusen lived there or not.

[00:09:00] Speaker 02:
It seems clear that the Fusen family had some sort of structure at which they could reside on NPO.

[00:09:07] Speaker 04:
You know, my review of the enumeration shows not 13 people.

[00:09:15] Speaker 04:
I don't know where that comes from.

[00:09:17] Speaker 02:
Well, you may be correct.

[00:09:18] Speaker 02:
I may have misstated the number.

[00:09:20] Speaker 04:
It's stated in owner's brief, Your Honor.

[00:09:23] Speaker 04:
I think that's incorrect.

[00:09:25] Speaker 04:
It lists Fanny Greyhair, the matriarch, Johnny, his wife Ruth, and two of their children.

[00:09:36] Speaker 04:
The only person that's interviewed is the matriarch.

[00:09:40] Speaker 04:
She's the only person that's interviewed when they

[00:09:46] Speaker 04:
enumerator on the HPL three times.

[00:09:49] Speaker 04:
She's the only person interviewed.

[00:09:51] Speaker 04:
We don't know what's in those interviews, Your Honor.

[00:09:53] Speaker 04:
It would be nice to know what's in those interviews, wouldn't it?

[00:09:56] Speaker 04:
But according to O'Neill,

[00:09:59] Speaker 04:
All the underlying data was lost in a flood or the dog ate their homework, whatever.

[00:10:05] Speaker 04:
We don't have it.

[00:10:07] Speaker 02:
I understand your point, but I don't understand the agency to be suggesting that the enumeration is dispositive.

[00:10:15] Speaker 02:
It's just one of many factors out there.

[00:10:17] Speaker 02:
Parties are looking at trying to piece together, as you've eloquently stated, a history from 40, 50 years ago, with failing memories and elderly witnesses, and so there's bits of evidence out there that the parties are looking at.

[00:10:31] Speaker 02:
Something in your brief that I wanted to touch on was this issue of who has the burden of establishing whether a person qualifies for the relocation expenses, because one, they were ahead of household, or two, they lived on,

[00:10:47] Speaker 02:
You lived in...

[00:10:49] Speaker 02:
HPL when they were in fact a member of the Navajo Nation or vice versa.

[00:10:53] Speaker 02:
They lived on NPL when they were a member of the Hopi tribe.

[00:10:56] Speaker 02:
So they end up having relocation because they're forced to move from one side to the other.

[00:11:03] Speaker 02:
Your brief suggests that that burden is on the government or it's on the agency.

[00:11:10] Speaker 02:
But the CFRs clearly state that the applicant has the burden of proving where they lived and if they were head of household.

[00:11:17] Speaker 02:
And I understand head of household is not at issue in this case.

[00:11:19] Speaker 02:
Do you still advance your domicile basis for arguing that that somehow shifted the burden to the agency?

[00:11:30] Speaker 04:
Let me answer that in two ways, Your Honor.

[00:11:32] Speaker 04:
First of all, the burden is clearly on the applicant to show legal residence.

[00:11:37] Speaker 04:
However, legal residence is the equivalent of domicile.

[00:11:44] Speaker 04:
You know, the agency knows that, I know that, and the court should know.

[00:11:50] Speaker 02:
So as I recall, you've made this argument to this court on multiple occasions in the past, and it's never succeeded.

[00:11:59] Speaker 02:
We've never concluded that yes, in fact, this gloss is what it means to prove what the applicant has to prove.

[00:12:07] Speaker 02:
And as I understood your argument, it was if they could prove at some point they were domiciled on HPL, in this case it would be HPL.

[00:12:14] Speaker 02:
That means that the government then had to come forward and prove that they weren't living there at the time of the partition.

[00:12:19] Speaker 04:
Your Honor, that was our position in Daw and Shaw.

[00:12:25] Speaker 02:
And you've abandoned that now.

[00:12:26] Speaker 02:
Yes.

[00:12:27] Speaker 02:
And as you may recall, I was on both of those cases.

[00:12:29] Speaker 04:
Well, the court has ruled that there's no burden shifting.

[00:12:32] Speaker 02:
Right.

[00:12:32] Speaker 02:
We rejected that argument twice.

[00:12:34] Speaker 02:
What?

[00:12:35] Speaker 02:
We rejected it twice.

[00:12:36] Speaker 04:
Yeah.

[00:12:37] Speaker 04:
And I listened to the court, Your Honor.

[00:12:39] Speaker 04:
I understand that.

[00:12:41] Speaker 04:
That doesn't throw domicile out the window.

[00:12:44] Speaker 04:
How can you throw domicile out the window?

[00:12:46] Speaker 04:
The agency has used it.

[00:12:49] Speaker 02:
So how does domicile come into play then?

[00:12:52] Speaker 02:
Because Mr. Fusen still has to prove he was a legal resident on HPL or he was domiciled on HPL.

[00:12:59] Speaker 02:
So why is this now somehow different?

[00:13:02] Speaker 02:
You're saying residents and domicile are the same.

[00:13:04] Speaker 02:
He still has a burden of showing it.

[00:13:07] Speaker 04:
The agency, I attach a memo from 1989 where they say it's equivalent.

[00:13:15] Speaker 04:
The hearing officer has used domicile criteria since 1985.

[00:13:23] Speaker 04:
to come to his decision.

[00:13:29] Speaker 04:
And what the hearing officer says in those cases is, I've said many times, you can only have one domicile.

[00:13:35] Speaker 04:
So it's our position that by the law of domicile,

[00:13:40] Speaker 04:
If Johnny Fusion shows that his domicile was his entire ranch using in a traditional customary use area, he has met his burden.

[00:13:57] Speaker 04:
I mean, the burden can't be insurmountable, Your Honor.

[00:14:01] Speaker 04:
At some point,

[00:14:03] Speaker 04:
litigants, plaintiffs, and criminal defendants.

[00:14:07] Speaker 02:
Well, it's far from insurmountable.

[00:14:09] Speaker 02:
It's very frequently established just by testimony.

[00:14:12] Speaker 02:
The records are not entirely complete.

[00:14:16] Speaker 02:
There's some of those gaps.

[00:14:18] Speaker 02:
There's lack of memory.

[00:14:19] Speaker 02:
But these claims are being processed just largely on applicant's testimony.

[00:14:24] Speaker 04:
Well, since the Herbert case, the agency, according to the report to the GAO, has rejected 95% of the applications.

[00:14:35] Speaker 02:
Since when?

[00:14:35] Speaker 02:
When was that case?

[00:14:36] Speaker 04:
Herbert is 2008.

[00:14:37] Speaker 02:
Okay, so that's some...

[00:14:42] Speaker 02:
Yeah, how many years is that after the act so it's it's a very long time, right?

[00:14:47] Speaker 04:
So these I would assume the bulk of the claims 40 years 35 to 40 years after the act You know so so I think domicile law can be applied Without the burden shifting it has to be applied without the burden shifting because this court has said there's no burden shifting and

[00:15:05] Speaker 02:
Let me stop you for just a moment.

[00:15:06] Speaker 02:
So you've gone over time at this point, and you wanted to reserve, I believe, three minutes.

[00:15:11] Speaker 02:
Do you wanna, I'll give you a couple minutes if you'd like to reserve that.

[00:15:15] Speaker 04:
Yeah.

[00:15:15] Speaker 04:
Okay.

[00:15:16] Speaker 04:
Okay.

[00:15:17] Speaker 04:
Thank you.

[00:15:34] Speaker 00:
Good morning, Your Honors, and may it please the Court, Caitlin Shugart-Schmidt here on behalf of the Office of Navajo and Hopi Indian Relocation.

[00:15:41] Speaker 00:
Substantial evidence here supported the hearing officer's determination that the plaintiff did not meet his burden to show that his legal residency as of December 1974 was on Hopi-partitioned land, thus qualifying him for relocation benefits.

[00:15:56] Speaker 00:
The hearing officer rationally looked at a variety of evidence available and determined that the indicators tying plaintiff either to his grandmother's NPL property or to the home of his wife and children outweighed the evidence presented by plaintiff in support of his claim of residence on the HPL.

[00:16:12] Speaker 03:
How does the hearing officer's determination that Johnny was not a legal resident of the HPL square with the deposition testimony of the BIA enumerator?

[00:16:27] Speaker 00:
I'm sorry, Your Honor, I don't quite follow your question.

[00:16:32] Speaker 03:
How does the hearing officer's conclusion that Johnny was not a legal resident, a resident for the purposes of relocation benefits of the HPL, how does that square with the enumeration testimony by the BIA?

[00:16:50] Speaker 00:
So my understanding of what happened here was that there was a number of visits done on the NPL and the HBL properties of Ms.

[00:16:57] Speaker 00:
Greyhair.

[00:16:58] Speaker 00:
On the NPL property, when that property was assessed by the enumerators, it was listed that

[00:17:05] Speaker 00:
Miss gray hair and 13 members of her family.

[00:17:08] Speaker 00:
I think we just have an incomplete portion of the enumeration record in the in the actual record in this case, but the full record actually included Benny the brother and sisters of the niece and all the children of the brother as well.

[00:17:21] Speaker 00:
So that's where we get to the 13 people is a longer record.

[00:17:24] Speaker 00:
But regardless, that enumeration record specifically noted that Johnny was present on the NPL or was listed as having a residency on the NPL.

[00:17:32] Speaker 00:
The HPL enumeration doesn't have that level of detail, right?

[00:17:35] Speaker 00:
It simply says that Miss Greyhair was present there.

[00:17:37] Speaker 00:
Now, this is not evidence that he did not live on the HPL, but it is evidence indicative that he lived on the NPL.

[00:17:44] Speaker 00:
And if we took his testimony as credible, what the plaintiff in this case has asserted throughout the duration was that he resided solely on the HPL.

[00:17:54] Speaker 00:
He said after repeated questioning in his testimony when he was asked, did you live anywhere else, did you live anywhere else, he repeatedly said no, he resided solely on the HPL.

[00:18:04] Speaker 00:
So even if you look at that as credible evidence, which the hearing officer found incredible, but if you looked at that and you compare it to the enumeration record, you have two conflicting pieces of evidence.

[00:18:13] Speaker 00:
You have his testimony that he resided on.

[00:18:15] Speaker 01:
How can this panel conclude that the IHO reasonably considered the relevant issues and reasonably explained its decision?

[00:18:23] Speaker 01:
when it relied on the BIA's enumeration roster without addressing, and I think this goes to Judge Hawkins' question, without addressing the deposition testimony of the BIA enumerator who very explicitly stated that not all of the head of households are listed on the rosters, and that is not addressed in any way, shape, or form by the IHO in its decision.

[00:18:46] Speaker 00:
I think it's helpful to take a step back and sit at where we are in this proceeding now, which is reviewing to determine whether or not the plaintiff met his burden of proof of demonstrating his residence on the HPL.

[00:18:58] Speaker 00:
So what the hearing officer was tasked with doing was looking at everything that was presented in front of him, which was these enumeration cards, which they're very familiar with, with the hearing testimony, with his ex-wife's hearing testimony, which was found to be credible, and say, based on all of these, what do I think

[00:19:13] Speaker 00:
is a plausible outcome, what do I think was a reasonable location for his residency, and was that the HPL like he says that it was?

[00:19:23] Speaker 00:
And in this case, he's looking at that data and he's saying the plaintiff was clearly listed as a residence on the NPL, and here he is arguing that he lived only on the HPL.

[00:19:35] Speaker 00:
That was his testimony.

[00:19:36] Speaker 00:
Those are clearly inconsistent.

[00:19:39] Speaker 02:
So the problem is,

[00:19:41] Speaker 02:
With the deposition testimony of the enumerator, she said something along the lines of they wouldn't necessarily list everyone who lived in a location.

[00:19:51] Speaker 02:
So when they list the grandmother as living at the HPL, that could be incomplete.

[00:19:58] Speaker 00:
Absolutely.

[00:19:58] Speaker 02:
So Mr. Fusion could have lived at the HPL.

[00:20:01] Speaker 02:
Yes.

[00:20:02] Speaker 02:
But he's also listed as living at the NPL.

[00:20:06] Speaker 02:
Correct.

[00:20:07] Speaker 00:
Yes.

[00:20:14] Speaker 00:
The goal of the hearing officer sitting in this position and viewing this evidence in the first instance is not to say conclusively he did not live at the HPL, right?

[00:20:23] Speaker 00:
It isn't his job to make a determination that he absolutely did not live at the HPL or that he conclusively lived in one specific location otherwise.

[00:20:30] Speaker 00:
It's to look at the data in front of him and say, what's a reasonable conclusion from this evidence?

[00:20:36] Speaker 00:
And it's not to say that the plaintiffs

[00:20:40] Speaker 00:
claim that he lived on the HPL is impossible or that it is implausible, but merely is the same reasonable interpretation of the evidence that I have in front of me.

[00:20:48] Speaker 00:
And he's entitled to do that in the first instance because he's the one that actually sits and hears the testimony and gets the opportunity to view these proceedings as they happen.

[00:20:57] Speaker 03:
How does Johnny's case relate to the cases of Binney and Marjorie?

[00:21:04] Speaker 00:
In terms of if there's any

[00:21:09] Speaker 00:
like this case has to go in a particular direction because of the conclusions of those cases.

[00:21:12] Speaker 00:
I mean, each case is assessed independently and it's assessed independently because it's assessed based on the record in front of the IHO for that particular case.

[00:21:20] Speaker 03:
Did the hearing officer, here's my question, did the hearing officer use his determination as to Johnny's credibility to discount the credibility of Binnie and Marjorie?

[00:21:35] Speaker 03:
I think that there is... The answer to that is yes, isn't it?

[00:21:38] Speaker 00:
Well, I think the hearing officer looked at hearing testimony in two ways when he was making his credibility determinations.

[00:21:44] Speaker 00:
He looked at the inconsistencies within each person's hearing testimony, and then he looked at the inconsistencies between the hearing testimonies.

[00:21:51] Speaker 00:
So, for example, if you look at Benny's testimony, I think this is in the ER at pages 428 and 429, you can see that when Benny testified,

[00:22:01] Speaker 00:
He was frequently confused about what he was testifying, or it appears that way from the transcript, although the IHO had the opportunity to actually observe the meaner.

[00:22:07] Speaker 03:
This is 40 or 50 years ago.

[00:22:09] Speaker 00:
Absolutely, but at the end of that testimony, what he's testifying about is actually filling out his own relocation forms, and he has no ability to discuss.

[00:22:18] Speaker 00:
who filled out those forms, who assisted him in filling out those forms, whose handwriting is on those forms, and this is a very near in time to the actual testimony, and he is very confused about what had happened.

[00:22:30] Speaker 00:
And it was reasonable for the hearing officer to look at that behavior, at that testimony, and say, I can't take all of this as credible because what I'm looking at in the record, and I encourage you to look at those specific pages and show how he just seems to have no

[00:22:44] Speaker 00:
real grasp of these proceedings and what's occurring and for the hearing officer to say, that just means that I don't have confidence that this testimony is credible because it is internally inconsistent and it is contrasting and conflicting with the other testimony that I'm hearing in this proceeding that everyone was hearing together.

[00:23:00] Speaker 03:
Is the same hearing officer here all of these cases?

[00:23:03] Speaker 00:
Yes, I believe they have from the beginning.

[00:23:05] Speaker 00:
And over, I think, approximately 3,800 cases have been approved in the years.

[00:23:11] Speaker 00:
And of course, I think this makes sense based on the types of cases that would be brought.

[00:23:16] Speaker 00:
The grant rate at the beginning was much higher than the grant rate is now, many years later.

[00:23:23] Speaker 02:
So it seems that the hearing officer determined that

[00:23:29] Speaker 02:
Mr. Johnny Fuson, Mr. Benny Fuson, and Ms.

[00:23:32] Speaker 02:
Marjorie, I can't remember her last name was Fuson.

[00:23:35] Speaker 02:
That all three of them were not credible.

[00:23:39] Speaker 02:
Correct.

[00:23:39] Speaker 02:
And in part then concluded that they weren't credible because their testimony, they were inconsistent with each other.

[00:23:45] Speaker 02:
So that's some sort of circular that you're not credible because you don't agree with something somebody who also is not credible said.

[00:23:54] Speaker 02:
How does that support the hearing officer's determination?

[00:23:57] Speaker 00:
Well, if Your Honors don't find that portion of the credibility determination as convincing, I would ask you to look to this first point that I made, which is the hearing officer also concluded that the testimonies themselves were inconsistent within each testimony they talked about.

[00:24:13] Speaker 00:
For example, the plaintiff originally said repeatedly that he only lived on the HPL, that there were no structures on the NPL,

[00:24:20] Speaker 00:
And he reiterated that.

[00:24:21] Speaker 00:
And then later in his testimony, he essentially changed what his answers were and began responding in a different way.

[00:24:27] Speaker 00:
And the hearing officer could reasonably look at that and say, how can I trust someone's testimony when even through the course of this interview, their answers to questions are changing?

[00:24:36] Speaker 00:
And that is certainly an articulate reason to find the testimony was not credible.

[00:24:42] Speaker 03:
What specific reasons did the IHO list for finding a lack of credibility as to Benny and Marjorie?

[00:24:53] Speaker 03:
Just focusing on those two.

[00:24:55] Speaker 00:
So I don't have, I can grab the text of the IHO's decision, but my recollection is that he essentially said that he found it to be inconsistent and confusing and that meant that it was not credible.

[00:25:04] Speaker 03:
Is there any obligation on the part of the IHO to go beyond that and specify?

[00:25:10] Speaker 00:
I don't think so, Your Honor.

[00:25:11] Speaker 00:
I think the standard here is pretty clear that his responsibility is just to articulate a reason for his conclusions.

[00:25:19] Speaker 01:
I think you just acknowledged a few moments ago in response to my colleague's question that it would be circular.

[00:25:25] Speaker 01:
In fact, it's problematic to determine that the testimony

[00:25:28] Speaker 01:
of any one of these witnesses is not credible simply because it's inconsistent with another witness's testimony, but that witness's testimony is also not credible.

[00:25:38] Speaker 01:
So if you acknowledge that point, which I understand that you did, and in fact said to the court, then you should look at sort of the internal inconsistencies, then wouldn't it be necessary for us to be able to look to the specific evidence in the record that the IHO can point to

[00:25:55] Speaker 01:
to under to underpin its adverse credibility finding with respect to any one of these individual witnesses.

[00:26:03] Speaker 01:
Well, I think that so to a different way, sorry, because that was a long winded way of asking the question.

[00:26:09] Speaker 01:
If we don't have anything

[00:26:11] Speaker 01:
in the record, and I don't think you have a response to the question of where specifically in the record we can look to for that, then how do we know that it wasn't based on this sort of circular reasoning that even I think you acknowledge is problematic?

[00:26:27] Speaker 00:
So I would point you directly to the IHO's decision.

[00:26:30] Speaker 00:
So this is at ER 16 and 17.

[00:26:33] Speaker 00:
And he specifically says, for example, for the plaintiff, applicant's testimony about residing at the camp is not credible in light of his family's residence and his identification by the BAA as living on the NPL.

[00:26:43] Speaker 00:
So he specifically points to that being a problem internal to the plaintiff's testimony.

[00:26:49] Speaker 00:
He then, if you turn the page, talks about Benny and he says that Benny's testimony is confusing and conflicting and inconsistent with other witnesses, right, but that it itself was confusing and conflicting.

[00:27:02] Speaker 01:
It doesn't point to anything in particular, just generally says it's confusing and conflicting.

[00:27:07] Speaker 00:
It does.

[00:27:07] Speaker 00:
That's true, Your Honor.

[00:27:08] Speaker 00:
But you can look to the record here, those pages in Benny's testimony, and say, of course, someone viewing this would say, this is confusing and conflicting testimony, because this particular person is not only giving inconsistent stories about his presence in this property over this time period, but he also is having more near-term issues identifying what happened in these proceedings.

[00:27:29] Speaker 03:
Did the hearing officer find an inconsistency about Johnny's testimony about silversmithing?

[00:27:38] Speaker 00:
Well, that's a tricky question, Your Honor.

[00:27:40] Speaker 03:
The question asks for a yes or no.

[00:27:42] Speaker 03:
You can explain all you want.

[00:27:44] Speaker 03:
Did he find an inconsistency based on Johnny's testimony about silversmithing?

[00:27:51] Speaker 00:
No, because Johnny never testified about silversmithing.

[00:27:53] Speaker 00:
There is absolutely nothing in the entire record from plaintiff to ever indicate that he said that he engaged in any sort of arts and crafts or silversmithing type activity.

[00:28:03] Speaker 00:
The only place in the record there is anything about that line of argument is in his niece's testimony where she asserts

[00:28:09] Speaker 00:
that her aunt and the plaintiff engaged in that activity prior to her aunt's death on April 5th, 1974.

[00:28:16] Speaker 00:
There is nothing from the plaintiff supporting any sort of traditional use, traditional silversmithing type of activity on the NPL and HPL because he never testifies that this was a form of employment.

[00:28:28] Speaker 03:
In any case, that would be irrelevant to the question of residency, correct?

[00:28:32] Speaker 00:
If plaintiff was trying to assert that he lived both on say the NPL and the HPL, he was using it in sort of a customary use traditional joint area type manner by engaging in traditional activities, it absolutely could be relevant evidence to that question.

[00:28:46] Speaker 03:
Was that his testimony?

[00:28:48] Speaker 00:
No, he testified that he lived on the HPL and only on the HPL and that there was no residence on the NPL and that he did not reside there.

[00:28:56] Speaker 02:
So what you're referring to is the mini woody exception.

[00:28:59] Speaker 00:
The sort of general customary use, right, which is a way that the agency has tried to actually, you know, go further than the sort of plain text of your residence in this location and instead look to, you know, if you had someone that was traditionally moving very closely between two areas using them as one unitary unit.

[00:29:15] Speaker 00:
You want to recognize that there's going to be a loss with removal off of part of that property.

[00:29:19] Speaker 00:
But that was not the case here based on what the hearing officer had before it.

[00:29:23] Speaker 00:
I mean, the actual evidence that he had once he made the conclusion that the plaintiff and his immediate family members whose testified testimony was not credible was the testimony of his ex-wife.

[00:29:33] Speaker 00:
and the BIA enumeration data.

[00:29:35] Speaker 00:
And based on those pieces of evidence, it was reasonable for the hearing officer to look to that and say, it's plausible that he lived at the NPL, it's plausible that he lived with his wife and children, either of those I think are more plausible than that he lived on the HPL because there's really no evidence to support that once you take away the testimony that he found incredible.

[00:29:53] Speaker 00:
And based on that, he made a determination that plaintiffs did not qualify for relocation benefits and this court should affirm that decision.

[00:30:00] Speaker 02:
Did Mr. Fusen ever say that he lived on, so his wife or his ex-wife lived on HPL, her family did.

[00:30:08] Speaker 02:
Did he ever say he lived there with her family?

[00:30:11] Speaker 00:
Everyone agreed at the outset of this proceeding that he was not making a claim to live on her family's property at the HPL.

[00:30:18] Speaker 00:
She lived at a boarding school.

[00:30:20] Speaker 00:
She had housing there provided by her employer, and that was off the HPL.

[00:30:24] Speaker 00:
That was in a different area.

[00:30:26] Speaker 02:
And if he had lived with her family on the HPL, it seems to be a problem that he wouldn't be the head of household on that property.

[00:30:34] Speaker 00:
I'm not sure, Your Honor, because everyone stipulated, and this is in the original testimony at the beginning of the testimony, they stipulated that he was not making any claim based on his wife's residency at her family's home.

[00:30:44] Speaker 00:
In fact, she testified that he never actually went to her family's property, along with saying that she did not find him when she would come to his family's property.

[00:30:53] Speaker 02:
So we've taken you over time.

[00:30:54] Speaker 02:
Are there any other questions?

[00:30:56] Speaker 02:
Okay, thank you.

[00:31:09] Speaker 04:
Opposing Council talks way faster than me, so I should get an extra minute, I think.

[00:31:18] Speaker 04:
So I think that the hearing officer's analysis is inconsistent.

[00:31:27] Speaker 04:
I think what Mr. Fuchin proved was that his family had a ranch that encompassed both the NPL and the HPL.

[00:31:39] Speaker 04:
On the determinative date, December 22, 1974, nothing changed.

[00:31:46] Speaker 04:
And I mean, it was happening in Washington.

[00:31:49] Speaker 04:
It was being passed in Washington.

[00:31:51] Speaker 04:
But nothing changed out on the former Joint Use Area.

[00:31:57] Speaker 04:
They continued using it.

[00:31:59] Speaker 04:
Yes, I agree they had reduced their flock, but that doesn't mean that they didn't have a flock.

[00:32:06] Speaker 04:
They did.

[00:32:10] Speaker 02:
Onir is focusing on... Your basis for saying they had a flock was that the grandmother had a permit for grazing in 1974.

[00:32:23] Speaker 04:
As well as Johnny, Benny, and Marjorie Greyhair's testimony that in 1974 they were living that life and herding sheep.

[00:32:37] Speaker 02:
Was it any more specific than the year 1974?

[00:32:41] Speaker 04:
Was there anything more specific with regard to their hurting in 1974?

[00:32:46] Speaker 04:
Other than Johnny, I mean Johnny was

[00:32:51] Speaker 04:
in charge of it.

[00:32:52] Speaker 04:
That's what Benny said.

[00:32:54] Speaker 02:
I know, but what I'm getting at is I don't see any dates.

[00:32:57] Speaker 02:
It seemed like the reduction was taking place in 1974 and seemed to pick up a lot of speed after the death of Mr. Fusen's sister in April, which is several months before December.

[00:33:08] Speaker 02:
So I didn't see anything.

[00:33:10] Speaker 02:
And if there's something in the record, I'd like you to point me to it so I know it's there.

[00:33:15] Speaker 04:
Well, I mean, we're talking about April 9th and December of the same year.

[00:33:21] Speaker 04:
Eight months?

[00:33:23] Speaker 04:
Yeah.

[00:33:23] Speaker 04:
I mean, nothing changed.

[00:33:24] Speaker 02:
There's no... But you're just asserting that.

[00:33:28] Speaker 02:
I'm looking for record evidence, some testimony, because your client had the burden here, right, that they talked about reducing the herd, and the only specific date given was this April 74 date.

[00:33:40] Speaker 04:
But no one testified that they didn't have a herd.

[00:33:44] Speaker 04:
I mean, it was that it was reduced.

[00:33:47] Speaker 04:
I mean, the lives, and everyone said that there was two reductions, 1974 and 1975 that they took in.

[00:33:58] Speaker 04:
So if they reduced in 1975, it's, you know, it's ipso facto that they had a herd in 1974.

[00:34:06] Speaker 04:
It continued.

[00:34:08] Speaker 02:
But where was the herd located in 1975?

[00:34:14] Speaker 04:
Well, nothing had changed in 1975 except the passage of the act.

[00:34:21] Speaker 04:
And that's, you know, the enumeration shows that.

[00:34:24] Speaker 04:
The enumeration shows that they were still, they still had a home on the HPL and they still had a frame house or shack and summer camp up on the NPL.

[00:34:37] Speaker 02:
Okay, so you see how the clock is not going up?

[00:34:39] Speaker 02:
That means you took the extra two minutes, you used those, and now you're another minute 30 over that.

[00:34:44] Speaker 02:
So can you wrap up?

[00:34:47] Speaker 04:
Are you saying I have another minute?

[00:34:49] Speaker 02:
No, I'm saying you're now almost four minutes over your allotted time.

[00:34:52] Speaker 04:
Oh, I'm sorry.

[00:34:53] Speaker 04:
I apologize.

[00:34:54] Speaker 04:
Yes, I do think that if you look at the inconsistency of the hearing officer's decision and the agency's decision, you'll see it's not based on substantial evidence.

[00:35:08] Speaker 04:
Some of it is just flat out wrong and arbitrary and capricious misapplication of the law.

[00:35:15] Speaker 04:
And I think Mr. Fusion is the type of Navajo relocatee who's entitled to benefits.

[00:35:21] Speaker 04:
A lifetime member there, an adult in 1974.

[00:35:24] Speaker 04:
I believe he is entitled to his benefits.

[00:35:28] Speaker 04:
I request this to the court.

[00:35:31] Speaker 04:
reverse and certify him, as in Shaw, as was done in Shaw, for benefits, because he's an elderly individual waiting for a home.

[00:35:42] Speaker 04:
Thank you.

[00:35:43] Speaker 02:
Thank you.

[00:35:44] Speaker 02:
I thank you, Council, both for your arguments this morning.

[00:35:46] Speaker 02:
They were helpful.

[00:35:47] Speaker 02:
And that is the last case for hearing this morning, and we are adjourned.