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

[00:00:03] Speaker 00:
Good morning.

[00:00:06] Speaker 00:
Good morning.

[00:00:09] Speaker 00:
My name is Lee Phillips.

[00:00:10] Speaker 00:
I'm an attorney in sole practice in Flagstaff, Arizona.

[00:00:14] Speaker 00:
I represent Manley Barton.

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I conducted his administrative appeal hearing many years ago, and I've represented him throughout the course of his effort to obtain his relocation benefits.

[00:00:27] Speaker 00:
I think the issue that we would ask the court to focus on was that

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Was Mr. Barton, Manly Barton, was he a self-supporting head of household when he moved off of the Hopi Partition lands?

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And why that is so significant is that's really at the core of the decision ultimately in this case, is when did my client move off, move off, not just temporarily leave, but move off the HPL and the owner's own documents

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document the fact that he moved off with his mother and his sister in April of 1986.

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So he was, at that time, he would have been 20 years old.

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He, at that time, was supporting himself for several, since 85 when he graduated from high school and began working two jobs, construction at a gas station.

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And so he was 20.

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He was in 85.

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He'd earned over $4,000, according to the Social Security

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information and over $14,000, I think, in 1986.

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So he clearly at the time moved off with an adult, independent and self-supporting.

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The government's position is, and this sort of evolves, they initially indicate that they believe that, and this is also the hearing officer's position, that is that in 1984, his grandparents, Howard and Ruth Begay,

[00:02:00] Speaker 00:
who lived at the HPL home site with my client and his family, Maria's mother and Marcella, his sister.

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The grandparents moved one quarter mile from the original Hopi Partition Lands home site across the fence to what now is Navajo Partition Lands.

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So the home site at that point, in a sense, the family separated.

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Howard and Ruth, the grandparents, moved a quarter mile away.

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Now they're off of the Hopi Partition lands, but Marie, Marcella, and Manley remained on the Hopi Partition lands, and that was the consistent testimony of the witnesses at the hearing.

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That's the consistent information from the O'Neill records.

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And we would ask the court to ultimately make the determination that he did, in fact, move off with his sister and his mother April of 1986.

[00:02:48] Speaker 04:
What changed, counsel, in April of 1986, when you say that's when the move was?

[00:02:55] Speaker 04:
Because there was a lot of temporary away, so I mean, high school and when, you know, the family lived outside the cycle would come back.

[00:03:04] Speaker 04:
But what changed exactly?

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What were the major indices of

[00:03:09] Speaker 04:
of residency that changed that date in April?

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April 4th, 1986, according to O'Neer's own records, the mother, Marie, relocated from the HPL into a relocation home which was located on the

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NPL, the Navajo side.

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So like his grandparents, he moved, but not until they moved in 84, he moved in 86.

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And the records document that Ruth, I'm sorry, Marie, his mother, his sister, Marcella, and Manley all relocated on the same date, which was April 4th, 1986.

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And that's, you can find that in the record at

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Oh, the Relocation Commission, if you're not aware, they keep track of all these individuals' information and they update it periodically.

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And in this case, the document is at page 248 and 259 of the ER.

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And at 249, there's a document that indicates that Manley and Marcella,

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On the form, it says, did they relocate with Marie the mother?

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And it says yes in both situations.

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And it's our position that from 1986, April of 1986, the family lived off of the HPL.

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But by that time, Mr. Barton had clearly become a self-supporting.

[00:04:40] Speaker 04:
And prior to that move in April, when Manley Barton was not at the home site, was he staying in Holbrook or where was he?

[00:04:49] Speaker 04:
putting his bed, I mean, where was he staying?

[00:04:51] Speaker 00:
Yes, throughout, from the time Manley was seven years old, his parents, his father and his mother, moved to Holbrook, not moved, but they rented an apartment in Holbrook.

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And that residency pattern continued all the way through 1986, which was Marie, the mother, was working at the dormitory in Holbrook.

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Manley was living, staying with his mother and his sister, Marcella.

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And the residency pattern consistently during all those years until 1986 was that they were, the family Bartons were temporarily away, the mother for employment, my client and his sister for education.

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And so when he graduated in 1985, he was 18 years old, 19 years old, and he immediately went to work, according to the testimony of all the witnesses, that he immediately went to work

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on the two jobs, as I said, earning over $4,000 in 1985.

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At that point, he would be considered, typically what presumption would be, he would be a separate household.

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And so... What is the correct standard for analyzing whether the temporarily away exception applies?

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Well, I think the general rule that the government seems to follow is that in

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that if, what they're really talking about is residency, right?

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Because the eligible, when he moved off, he had to be a legal resident.

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We're saying that was 1986.

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They're saying it's either 1984, 1985.

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But the test usually is what was the intent of the applicant?

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And the intent is sort of measured by the manifestations of the person's intent to remain on the HPL.

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And in this situation... And what's your best authority

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for that supports the definition or the standard that you just articulated?

[00:06:41] Speaker 00:
Charles versus O'Neer, which was a decision of, I believe of this court, no, it was a decision that the district court was affirmed by.

[00:06:48] Speaker 02:
But Charles wasn't dealing with a temporarily away exception, correct?

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I mean, Charles was dealing with the determination about residency, which was the first element, where that, in this case, is acknowledged by both sides, that the residency requirement is met.

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We're talking about the head of household.

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So you would agree that Charles was not a decision relating to the temporarily away exception, right?

[00:07:12] Speaker 00:
Yes.

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And I think we cite in our papers several O'Neill cases where they discuss what is temporary away.

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And the difference is your intent when you leave, are you leaving with the intent to stay away from, off of the HPL, like a move off?

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Or are you temporarily away for either education or employment, which is recognized by O'Neill as legitimate reasons for the families and their family members to move off, or at least temporarily, because there's no employment on the reservation at that time and there's no schools.

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So education for the kids and employment for the parents, all of that has to occur off the HPL.

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And that's what happened in this situation.

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on the weekends and all the testimonies consistently.

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While they were in school, Marcella and Manley, they returned to the HPL home site every summer vacation and every other weekend during the school year.

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Once Mr. Barton became 18 and became self-employed and self-sufficient, at that point he was

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Yes, at that point he was in the process of demonstrating not that he was moving, but that he was temporarily away for education initially and then employment.

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And that changed in April of 1986 when his mother, who had been certified for relocation benefits, moved from her HPL residence into the relocation home, April 4th, 1986.

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And the commission's documents make it clear that Marcella Ann Manley,

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moved off that same date, April 4th, 1986.

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That's the last time that they left with the intention of being permanently gone.

[00:08:58] Speaker 04:
How does one draw the line between temporarily away part and the residence part?

[00:09:05] Speaker 04:
You say it's a matter of intent, I understand that, but intent exactly to do what?

[00:09:08] Speaker 04:
Is it because you subjectively feel that's your home, that's where you keep your main belongings,

[00:09:16] Speaker 04:
That's where you're hoping to return.

[00:09:17] Speaker 04:
What precisely is the intent that we're looking for here?

[00:09:20] Speaker 00:
Well, I guess the difference between a move off versus temporarily away would be that there's a repeated pattern of leaving for employment and or education, but returning to your ancestral homeland, your home site on the HPL.

[00:09:36] Speaker 02:
So it's an intent to return?

[00:09:38] Speaker 02:
Yes.

[00:09:39] Speaker 02:
Much like we talk about residency in other contexts, if you have an intent to return,

[00:09:44] Speaker 02:
that we sort of utilize that framework for determining not just, and if I understand your argument correctly, you're saying we should sort of impute that standard that we use for the residency element to the head of household because, of course, when they left, relates to how long they intended to stay or return.

[00:10:04] Speaker 00:
Yes, I'm sure you're aware, but Marie, his mother, she was certified

[00:10:09] Speaker 00:
because not because she was a resident, she was certified because she was temporarily away, transformed.

[00:10:14] Speaker 02:
So I think I understand your argument and it, you know, it makes sense that the determination of how long you stayed has a component that is part of a residency analysis.

[00:10:27] Speaker 02:
My question is how would the IHO know to apply that standard that's in Charles that typically really relates to the first element?

[00:10:39] Speaker 02:
in a head of household analysis?

[00:10:41] Speaker 02:
What direction, what case, what regulation, what would they look to, what policy, so that as we sit here today, we can consider whether or not the IHO's failure to do so was arbitrary and capricious?

[00:11:00] Speaker 00:
Well, I guess the issue is

[00:11:02] Speaker 00:
It goes back to what was the intent.

[00:11:04] Speaker 00:
If there's a pattern of leaving temporarily for workers or employment, that would normally would qualify as temporarily away and that would make you a continual resident even though you were temporarily away.

[00:11:15] Speaker 00:
In April of 1986, the difference is the mother and both of her children

[00:11:21] Speaker 00:
literally packed up and moved away, and they moved into the new relocation home that was built.

[00:11:26] Speaker 02:
So you're just saying it was so obvious that the IHO should have considered that it's arbitrary and capricious for it not to have done so.

[00:11:33] Speaker 00:
Yes, because O'Neill found that the mother was eligible, certified for benefits because she was temporarily away, and what they usually refer to as substantial and reoccurring back and forth.

[00:11:48] Speaker 00:
And that was the mother.

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She was certified based on that.

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She wasn't a full-time resident because she, like the kids, was back and forth from Holbrook the entire time.

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But both the kids were with her all of those times.

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I mean, they were usually minors for most of those times.

[00:12:02] Speaker 00:
She had a vehicle.

[00:12:03] Speaker 00:
Every summer vacation, holidays, she and the kids would go back to their home site on the HPL, where they lived in a traditional mud, wood hogan that, in 1984, when the

[00:12:16] Speaker 00:
when Marie's parents, the grandparents, relocated it one quarter mile away, the grandfather, who was basically considered the owner of that Hopi Partition lands homesite, he quit claimed to his daughter Marie and mother of my client Manly, Howard the grandfather quit claimed what was his hogan, that homesite primarily, but the one hogan

[00:12:40] Speaker 00:
The Bartons, my client and his mother, had lived in as a permanent residence, HPL residence, the entire time, from the time he was seven until he moved in.

[00:12:50] Speaker 01:
Council, let me ask you this.

[00:12:51] Speaker 01:
It's my understanding that your client testified at his hearing that after 1984 he visited the HPL home site all the time.

[00:13:00] Speaker 01:
But he didn't expand on what that meant.

[00:13:03] Speaker 01:
Wasn't it his burden to be more specific?

[00:13:07] Speaker 01:
the testimony of working the weekends for his job and visiting his father, doesn't that support the hearing officer's conclusion that your client's trips to the HPL home site were infrequent?

[00:13:18] Speaker 00:
No.

[00:13:19] Speaker 00:
Why?

[00:13:20] Speaker 00:
Well, because, I mean, there are certain limitations when you're living away for work or school, and that is there's typically during the week you're working, which would mean off of the HPL, and weekends, holidays, and the summer vacations,

[00:13:33] Speaker 00:
would be back on their HPL Hogan on the HPL home site.

[00:13:37] Speaker 00:
So again, the mother and the kids, if you looked at all of the testimony, again, they were both the girl, Marcella and Manley, my client, were basically kids until 1985 when Manley turned 18.

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Then he was a junior in high school and he stayed for another year going to high school in Holbrook.

[00:13:56] Speaker 00:
And in 1986, when his mother home was built, the three of them, and again, it's not just me saying that, O'Neer's own records will show Marie Barton moved April of 1986.

[00:14:08] Speaker 00:
She was a resident because of her recurring contacts.

[00:14:12] Speaker 02:
Can you address for me the customary use area policy?

[00:14:16] Speaker 02:
So I'd like to know first, you know,

[00:14:19] Speaker 02:
Let us know how or why it's applicable here.

[00:14:22] Speaker 02:
And then what's your best authority to support the position that it applies to show that your client maintained his residency on the HPL until he became head of household?

[00:14:35] Speaker 00:
Well, again, I want the court to understand that the mother and the two children were a nuclear family.

[00:14:44] Speaker 00:
So she had one vehicle.

[00:14:46] Speaker 00:
They all lived on the HPL.

[00:14:47] Speaker 00:
They all commuted back and forth to Holbrook.

[00:14:50] Speaker 00:
And that continued to happen up until all three of them moved permanently in April of 1986.

[00:14:55] Speaker 00:
The customer use issue is what the government has come to recognize is when they divided the land between Hopi people and Navajo people and the people had to move to the other side, that if that partition of the two sections, HPL and MPL,

[00:15:14] Speaker 00:
If that partition cut through, split your home site, part of your home site?

[00:15:19] Speaker 02:
I think, at least from my perspective, I understand what the policy is.

[00:15:23] Speaker 02:
And I understand that here we had that.

[00:15:26] Speaker 02:
There was a partition through the land that's the subject of your client's claim.

[00:15:32] Speaker 02:
And so what I want to know is what's your best authority to support that it shows your client maintained his residency on the HPL until?

[00:15:43] Speaker 02:
he became head of household.

[00:15:45] Speaker 00:
Well, again, 1984, the grandparents relocated.

[00:15:49] Speaker 00:
That's clearly, and then they moved a quarter mile off across the line.

[00:15:54] Speaker 02:
All of the rest is... Do you have a case site or something you can point to?

[00:16:00] Speaker 02:
Because the customary area use, the customary use area policy is not, it is a policy of the agency, right?

[00:16:09] Speaker 02:
This is not something that we can find in regulation.

[00:16:12] Speaker 02:
Essentially, we're looking to the case law to determine when and whether it can apply for determination of the head of household.

[00:16:19] Speaker 02:
So that's what I'm really looking for from you.

[00:16:23] Speaker 00:
All right.

[00:16:23] Speaker 00:
Well, again, it's in the O'Neill's regulations.

[00:16:28] Speaker 00:
It's in the manual that Susan Kristol, the first attorney for O'Neill, created, which describes how you could determine eligibility, temporarily away, head of household.

[00:16:39] Speaker 00:
There are so many cases.

[00:16:42] Speaker 00:
Literally, in every situation.

[00:16:44] Speaker 02:
Okay, so what's your best case?

[00:16:45] Speaker 02:
And then you're out of time, so I'd like you to answer this question, and then we'll give you two minutes on the clock for rebuttal.

[00:16:52] Speaker 00:
If I'd be allowed to come back, if I can, I'd like to check the date and name of the cases.

[00:16:59] Speaker 02:
Okay.

[00:16:59] Speaker 02:
All right.

[00:16:59] Speaker 02:
Thank you.

[00:17:01] Speaker 02:
Mr. Peterson?

[00:17:19] Speaker 03:
Good morning, Your Honors.

[00:17:21] Speaker 03:
May it please the Court.

[00:17:22] Speaker 03:
My name is Ezekiel Peterson here on behalf of the Office of Navajo and Hopi Indian Relocation, or ONIR.

[00:17:29] Speaker 03:
ONIR's decision that plaintiff had not shown that he was entitled to relocation benefits was both reasonable and supported by substantial evidence.

[00:17:37] Speaker 03:
Plaintiff did not carry his burden to show that he was a resident of the Hopi Partition Lands or HP.

[00:17:42] Speaker 02:
So can you point to where in the record the IHO explains why it did not apply the customary

[00:17:48] Speaker 02:
use area policy in its decision?

[00:17:50] Speaker 03:
I don't think the IHO addressed that specifically.

[00:17:55] Speaker 02:
So if it's failure to address that, wouldn't that alone constitute an arbitrary and capricious action?

[00:18:02] Speaker 03:
No, Your Honor, because the customary use policy clearly does not apply here.

[00:18:06] Speaker 03:
And I'd like to address that because I think

[00:18:08] Speaker 03:
We would respectfully push back on something that you stated during the opening.

[00:18:13] Speaker 03:
There is no evidence in the record here that this was a partition through land that was both on the NPL and the HPL.

[00:18:21] Speaker 03:
when the partition happens.

[00:18:23] Speaker 03:
So for the customary use policy to apply, there has to have been land that a family or an individual used for traditional Navajo uses that went across both what became the HPL and the NPL.

[00:18:35] Speaker 03:
And that's simply, as the district court noted, not the factual scenario we have here.

[00:18:40] Speaker 03:
Rather, what we have is a family who was using land on the HPL entirely, as far as the record goes, and then relocated, agreed in 1984 to surrender their interest in that land, in the buildings on the land, accepted relocation benefits, and relocated to the NPL.

[00:18:57] Speaker 03:
So for the customary use policy to apply, there had to be some evidence.

[00:19:02] Speaker 03:
Plaintiff would have had to provide some evidence that the family was using both the NPL and the HPL for traditional uses.

[00:19:09] Speaker 03:
before the partition actually happened.

[00:19:12] Speaker 03:
The record here is entirely devoid of that type of evidence, so the customer use policy is not a basis to overturn the IHO's decision.

[00:19:24] Speaker 02:
I'd like to discuss why... Would you agree that if the land, the factual contention I think that you're raising about whether or not the land was partitioned, if it were in the customer use policy,

[00:19:39] Speaker 02:
was applicable for that reason, the failure by the agency to set forth any of its reasons for not applying the policy would constitute an arbitrary and capricious action.

[00:19:53] Speaker 03:
I think the agency's action could be upheld on the basis that the IHO laid out, because plaintiff had failed to provide evidence of his residency at all, regardless of whether or not the customary use policy applies.

[00:20:09] Speaker 03:
Plaintiff had failed to provide the types of evidence that when he became head of household in 1984, he actually was a resident of the HPL.

[00:20:19] Speaker 03:
And I want to get into a little bit of what the testimony actually was at the hearing there.

[00:20:24] Speaker 03:
The hearing officer cited testimony from the hearing that nobody lived on the HPL home site in 1985 after the relocation in 1984.

[00:20:33] Speaker 03:
The plaintiff lived and worked in Holbrook and across the country.

[00:20:36] Speaker 04:
That was quoting the aunt's testimony that nobody lived there, quote, like 24-7.

[00:20:40] Speaker 04:
That's true.

[00:20:41] Speaker 04:
She didn't say nobody ever lived there.

[00:20:42] Speaker 04:
That's true, your honor.

[00:20:44] Speaker 04:
The testimony from many others, including Richard and Mildred, as well as Mr. Manley-Begay, was quite consistent that they would return every other weekend during summers and for ceremonies.

[00:20:55] Speaker 04:
All that was uncontradicted, right?

[00:20:57] Speaker 04:
That they would come back every other week?

[00:20:59] Speaker 03:
So the testimony that they would return for summers and during ceremonies, I think... And every other week.

[00:21:04] Speaker 03:
And every other week.

[00:21:05] Speaker 03:
Yes, Your Honor.

[00:21:06] Speaker 03:
There's two parts, two answers to that.

[00:21:08] Speaker 03:
One is that testimony referred to the pre-1984 relocation

[00:21:13] Speaker 03:
pattern of activity.

[00:21:14] Speaker 03:
And after that 1984 relocation, the testimony of Richard, the testimony of Mildred, and the testimony of Ruth Ann is consistent that the family kept livestock on the HPL property.

[00:21:28] Speaker 03:
They returned to the HPL property for ceremonies to use the hogan on the HPL property because they did not have one on the NPL property.

[00:21:36] Speaker 03:
and that they use the HPL property for storage and for keeping things and for overflow.

[00:21:41] Speaker 03:
So Richard testified to that, Mildred testified to that, Ruth Ann testified to that, but none of those family members testified that anybody was actually living at the HPL.

[00:21:51] Speaker 04:
Was there clear delineation, a change in practice that they testified to?

[00:21:56] Speaker 04:
Those who testified to the frequency of every other weekend, for instance, did they say starting in 1984 when the grandparents moved out, that all changed?

[00:22:06] Speaker 04:
Or is that just by inference?

[00:22:09] Speaker 03:
I would have to double check the record, Your Honor, but I think record page 61 is Richard Begay's testimony.

[00:22:15] Speaker 03:
Yeah, in record page 76, Mildred says, after the grandparents moved, we continued to make use of the HPL home site because we had our livestock there and had belongings at the old home site.

[00:22:31] Speaker 01:
So counsel, how much of your argument actually relies on the hearing officer's conclusion that the appellant's residency on the HPL home site extinguished when the grandparents relocated?

[00:22:42] Speaker 03:
Your Honor, I think that's either.

[00:22:47] Speaker 03:
reason supports the IHO's conclusion that plaintiff was not entitled or did not show he was entitled.

[00:22:54] Speaker 01:
But doesn't the hearing officer's conclusion conflict with the regulation defining residence, which as counsel for the appellant has clearly stated, it has to do with the individual's intent to reside in a particular location and the manifestations of that intent?

[00:23:12] Speaker 03:
No, Your Honor, because it's plaintiff's burden to show residence and plaintiff did not

[00:23:16] Speaker 03:
show through evidence about his intent to reside at the HPL home site when he became head of household or manifestations of that intent to reside at the HPL household after the relocation?

[00:23:28] Speaker 04:
Well, except the IHO's ruling, his conclusions of law, third paragraph, is regardless of the facts.

[00:23:36] Speaker 04:
It says that it ended in 1984 when the grandparents relocated and that regardless of the family's use

[00:23:45] Speaker 04:
They were no longer, the home site was no longer available for, you know, as a legal residence.

[00:23:51] Speaker 04:
It was a conclusion as a matter of law.

[00:23:53] Speaker 03:
That's true, Your Honor.

[00:23:54] Speaker 03:
And we think that conclusion is true, but also the hearing officer made the determination that plaintiff did not show substantial visitation from 1984 on, did not show residence from 1984 on.

[00:24:06] Speaker 03:
at record page 19 and 20 because nobody was living at the HPL home site at that time.

[00:24:12] Speaker 03:
So both of those things are true.

[00:24:14] Speaker 03:
Both plaintiff could not have established residence as a matter of law and plaintiff did not prove as he was required to by the regulations by showing his intent to reside at the home site or manifestation of that intent that he actually did reside at the HPL home site.

[00:24:27] Speaker 03:
I think the standard of review is very important here because under the substantial evidence standard

[00:24:32] Speaker 03:
This court must uphold the agency's action as long as it is based on relevant evidence, as a reasonable mind might accept as adequate to support the conclusion, even though it's possible to draw two inconsistent conclusions.

[00:24:45] Speaker 04:
But there's a legal conclusion that's reviewed de novo.

[00:24:47] Speaker 03:
Yes, yes, Your Honor.

[00:24:48] Speaker 03:
But the conclusion about plaintiffs' proof of whether or not he had shown intent to reside or manifestations of that intent at the HPL home site when he became head of household in 1985 is reviewed under the substantial evidence standard.

[00:25:04] Speaker 02:
So you would agree, based on this last statement that you just made, that the intent, sort of the decision in Charles relating to the manifestations of intent is the right standard

[00:25:16] Speaker 02:
to consider the head of household residence issue as well?

[00:25:23] Speaker 03:
Yes, Your Honor.

[00:25:23] Speaker 03:
I think legal residence in both the first factor and the second factor of the test for eligibility for relocation benefits is demonstrated by intent to reside in manifestations of that intent.

[00:25:35] Speaker 03:
And the preamble to O'Neer's regulations, which this court has discussed and the district court has discussed,

[00:25:41] Speaker 03:
give some examples of kinds of things that plaintiffs can come forward with in their hearing or in their case to show intent and manifestations of that intent.

[00:25:51] Speaker 03:
That's stuff like grazing permits, employment records, ownership of livestock, other relevant data that can show manifestations of intent to reside at a specific site.

[00:26:02] Speaker 03:
And plaintiff didn't present that evidence in this case.

[00:26:06] Speaker 03:
All that we have here was plaintiff's own testimony

[00:26:08] Speaker 03:
that he was at the HPL home site, quote, all of the time.

[00:26:13] Speaker 03:
Certainly, the hearing officer.

[00:26:14] Speaker 02:
Let me ask you this.

[00:26:16] Speaker 02:
So your friend on the other side pointed us to ER 248.

[00:26:21] Speaker 02:
And that record site leads us to the document where Manley's mother's client card notes that she relocated from the HPL in 1986.

[00:26:34] Speaker 02:
The card also lists Manley as one of her family members.

[00:26:37] Speaker 02:
What impact does this fact have on establishing his move off date?

[00:26:40] Speaker 03:
I don't think that shows that Manley was a resident of the HPL.

[00:26:45] Speaker 03:
as of 1986.

[00:26:47] Speaker 03:
There's this period of time in 1985 where he became head of household, that's undisputed, and was required to show that he was living on the HDL at that point in order to be eligible for relocation benefits.

[00:27:04] Speaker 03:
But he has not met that burden here.

[00:27:06] Speaker 03:
His mother was certified for relocation benefits in 1981, so prior to the time he became head of household.

[00:27:13] Speaker 03:
So certainly it makes sense that plaintiff would be listed on that record because in 1981 he was a dependent minor who presumably had the imputed residence of his mother.

[00:27:23] Speaker 03:
But plaintiff did not come forward at the agency level to show that he was a resident of the HPL in 1985 when he became head of household.

[00:27:33] Speaker 03:
Certainly, the evidence at least does not compel the opposite conclusion.

[00:27:38] Speaker 03:
And that's what's really required here for this court to overturn the agency's decision and reverse the district court under the substantial evidence standards.

[00:27:48] Speaker 04:
We would argue that... What about if the agency, the IHO below

[00:27:53] Speaker 04:
didn't mention the supporting evidence, that is, the testimonies of several family members about the frequency by which Mr. Manley Barton would return home with his family, the fact that they kept possessions there, kept clothes there, tended to livestock, did maintenance around the house.

[00:28:11] Speaker 04:
The IHO basically sort of said, well, they're so busy, one must wonder when they could have visited Jadito, et cetera, et cetera.

[00:28:20] Speaker 04:
and said that the visits were limited to ceremonies or social interactions with certain family members, but really didn't say much about, didn't deal with the testimonies of not only Mr. Manley, but the father, I think it was, and the aunt about the frequency and the nature of their home visits.

[00:28:39] Speaker 04:
Would that warrant at least remand for reconsideration?

[00:28:43] Speaker 03:
I don't think so, Your Honor.

[00:28:46] Speaker 03:
Certainly the IHO could have been more thorough and more detailed, but under the substantial evidence standard, I don't think that raises this case to the level of a remand.

[00:28:57] Speaker 03:
Additionally, I think based on the evidence here, there would be a harmless error argument that the evidence shows that plaintiff did not prove that he was a resident of the HPL at the relevant date.

[00:29:10] Speaker 03:
But yes, we would ask that if this court

[00:29:13] Speaker 03:
concludes that the record does not support O'Neer's decision.

[00:29:16] Speaker 03:
It remand to the agency for further analysis and consideration of plaintiff's residency in 1985 when he became head of household.

[00:29:24] Speaker 04:
Because interestingly, the IHO determined that most of the witnesses, including Mr. Begay, were credible.

[00:29:31] Speaker 04:
Yes, Your Honor.

[00:29:32] Speaker 04:
And the only one that had some doubt was, I think it was Ruth, Aunt Ruth.

[00:29:35] Speaker 04:
Yes, Your Honor.

[00:29:36] Speaker 04:
Who was the one who made the statement about not being there 24-7 because she wasn't, was there, her timeline was a little bit mixed up.

[00:29:42] Speaker 04:
It seems a little odd that he credited those who sort of supported the testimony of all the indicial frequency and not the other.

[00:29:52] Speaker 03:
Yes, sir.

[00:29:52] Speaker 03:
I would say that it's not a full this witness wasn't credible finding.

[00:29:56] Speaker 03:
It's a finding that her credibility was limited by her inability to recall specific dates.

[00:30:01] Speaker 03:
So if she had said in 1984, this was happening, then maybe that was something that would be afforded less credibility.

[00:30:08] Speaker 03:
But her testimony was after the relocation.

[00:30:11] Speaker 03:
No one was living at the HPL home site 24 seven.

[00:30:15] Speaker 03:
That's the kind of major life event that's not tied to a specific number, specific date.

[00:30:19] Speaker 03:
We don't think that's affected by the partial adverse credibility finding.

[00:30:25] Speaker 02:
So I want to go back to the factual discrepancy that we were talking about earlier.

[00:30:28] Speaker 02:
I want you to look at ER 14 and tell me if you agree that here the IHO did find that Manley's family had a second home site that became part of the NPL.

[00:30:42] Speaker 02:
It's in the finding of fact number three.

[00:30:50] Speaker 03:
Okay, sorry, could you repeat the question?

[00:30:53] Speaker 03:
Sure.

[00:30:53] Speaker 02:
I read paragraph three in the IHO's finding of facts to say that in fact there was a second home site that became part of the NPL, but it was in fact partitioned.

[00:31:07] Speaker 02:
That's at ER 14.

[00:31:08] Speaker 02:
And so I want to understand why you disagree with the notion that the customary use policy is applicable when in fact

[00:31:17] Speaker 02:
In fact, the findings of fact from the IHO clearly state that the land was, in fact, partitioned.

[00:31:22] Speaker 03:
Your Honor, well, so the land was partitioned for the Navajo use, but the findings of fact doesn't make it clear that plaintiffs' family used that specific parcel of land for traditional uses before the partition.

[00:31:34] Speaker 02:
And so that is a discussion about whether or not they satisfied the customary use policy for purposes of granting that finding of residency.

[00:31:47] Speaker 02:
shouldn't have undergone the analysis in the first instance, which the IHO doesn't do here.

[00:31:52] Speaker 03:
Well, there's simply no evidence in the record that would even set off that discussion in the first place.

[00:31:59] Speaker 03:
There's no evidence that plaintiff's family was using that NPL site before the partition actually happened.

[00:32:07] Speaker 03:
And I don't believe that's an argument that the plaintiff made before the IHO either.

[00:32:16] Speaker 03:
Ultimately, we believe that the IHO's reasoning was supported by substantial evidence.

[00:32:22] Speaker 03:
His decision was reasonable, and this court should affirm.

[00:32:25] Speaker 03:
Thank you, Your Honor.

[00:32:25] Speaker 02:
Thank you.

[00:32:27] Speaker 02:
Mr. Phillips, we'll put two minutes on the clock for your rebuttal.

[00:32:36] Speaker 00:
Let me pick up on the question that you just posed, and that is the issue of the HPL home site.

[00:32:45] Speaker 00:
You're correct.

[00:32:46] Speaker 00:
The HO in this case found that the family, the extended family, Howard and Marie at the top, Marie the mom and the kids, that in 1984, he indicates that the grandparents moved to a site that he acknowledges was pre-existing.

[00:33:05] Speaker 00:
And that was part of the home site, right?

[00:33:07] Speaker 00:
The grandparents moved in 1984.

[00:33:11] Speaker 00:
They moved into a new relocation home.

[00:33:13] Speaker 00:
There was no Hogan's for ceremonies.

[00:33:15] Speaker 00:
There was no livestock permit allowed on that land.

[00:33:18] Speaker 00:
So all of the family continued to maintain the HPL home site because that's where the water was, the wood was, that's where the livestock was.

[00:33:26] Speaker 00:
And manly, once his father died in 1985, he was the man of the house.

[00:33:30] Speaker 02:
So were there arguments made to the IHO in the first instance that what I think your friend said right before he sat down, which is there were no arguments made in the first instance about customary use on

[00:33:41] Speaker 02:
this land.

[00:33:43] Speaker 00:
I would disagree.

[00:33:43] Speaker 00:
And I think even the HO says in his findings, the fact that you just mentioned that the family had a home site on the MPL.

[00:33:50] Speaker 00:
I mean, that's the traditional Navajo situation.

[00:33:54] Speaker 00:
Winter camps, summer camps, and the livestock causes them to move back and forth.

[00:33:59] Speaker 00:
And so the preexisting was the fact that they used the MPL.

[00:34:03] Speaker 00:
But 1984, they actually moved to the MPL portion of their traditional land, customary use area.

[00:34:10] Speaker 00:
and into the home.

[00:34:11] Speaker 00:
But again, the record is very clear that all the livestock, all the Hogan's were required for the ceremonies.

[00:34:17] Speaker 00:
All of those remained on the HPL.

[00:34:19] Speaker 00:
In fact, the one Hogan that Marie Barton and her kids lived, she turned that over when she relocated in 1986.

[00:34:26] Speaker 00:
There's photographs showing the Hogan was appraised value, the outhouse was at appraised value.

[00:34:32] Speaker 00:
So in

[00:34:34] Speaker 00:
86 that Hogan was still in existence on the HPL, which supports all of the testimony of the people who testified at the hearing.

[00:34:43] Speaker 00:
I don't want to forget to get back to you, Judge, on the cases.

[00:34:48] Speaker 00:
I would say the original case that I think of, in a temporary way, would be the Mike case.

[00:34:54] Speaker 00:
I think it's Dora Mike, but it's Mike versus Onier.

[00:34:56] Speaker 00:
That's several years ago, probably ten.

[00:35:00] Speaker 00:
Then recently, very recently, and within the last two months, District Court in Arizona, in two separate cases, Edward Bitsui,

[00:35:10] Speaker 00:
Versoneer and Bruce Yazzie Versoneer, their denial was reversed based on the fact that the HO gave virtually no credibility to the consistent testimony of witnesses about their coming and going and who lived where and when they moved.

[00:35:30] Speaker 00:
And also Powell Versoneer is a case I'd ask you to consider well because in that case, Powell is a student

[00:35:38] Speaker 00:
whose mother works at the same dormitory that Murray Barton worked at.

[00:35:42] Speaker 00:
The kid and his mother and Powell, she was a dormitory attendant just like Murray was.

[00:35:50] Speaker 00:
Initially, the hearing officer found that Mr. Powell, the son, had moved off of APL to move to Holbrook when he was going to school there.

[00:36:01] Speaker 00:
That was reversed by the district court who found that he was temporarily away for education while he was at the dormitory.

[00:36:07] Speaker 00:
and that he never actually moved off until well after the fact that he qualified for benefits.

[00:36:13] Speaker 02:
Okay.

[00:36:13] Speaker 02:
Thank you, Mr. Phillips.

[00:36:14] Speaker 02:
You're out of time, but we appreciate your argument, and this case has been submitted.

[00:36:17] Speaker 00:
Thank you so much.