[00:00:02] Speaker 03:
Good morning and welcome to the Ninth Circuit.

[00:00:04] Speaker 03:
I'm Judge Nelson and it's a pleasure to be joined by my colleagues Judge Hawkins and Judge Wallach visiting from Washington D.C.

[00:00:13] Speaker 03:
in the Federal Circuit.

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We'd like to welcome counsel and we want to thank court staff for they've been so good at getting this week done efficiently and without hiccup, which is always a good thing.

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We ask that during arguments you just watch your time

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Tell us if you want to reserve any time for rebuttal and try and sum up.

[00:00:33] Speaker 03:
We have two cases set for argument this morning, and so we'll go ahead and proceed with the first case set for argument, which is many goats versus United States Office of Navajo and Hopi Indian Relocation, which is case number 24-3274.

[00:00:52] Speaker 03:
We'll start with Mr. Phillips.

[00:01:03] Speaker 02:
Good morning, Your Honors.

[00:01:04] Speaker 02:
Lee Phillips on behalf of the Manygoats family, primarily Charlie and his wife Elsie.

[00:01:12] Speaker 02:
If you allow me to give you just a little context or background, we're talking about now at 1970s, 1974, the United States Congress passes the Navajo Hopi Indian Land Settlement Act, designed to try to settle conflicts between primarily the Hopi tribe, the smaller tribe, or farmers.

[00:01:30] Speaker 02:
Navajo is a larger tribe.

[00:01:32] Speaker 01:
At least two of us up here have heard several of these cases.

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And I was born and raised in Winslow, Arizona.

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So you don't need to tell me anything about the Navajo.

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I'm from Superior.

[00:01:45] Speaker 02:
I'm aware of that, gentlemen.

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Mr. Nelson, I don't believe has any Arizona connections.

[00:01:50] Speaker 01:
But he's had these cases before.

[00:01:52] Speaker 02:
Okay.

[00:01:52] Speaker 02:
And I understand the last time I believe had the honor of speaking to you, Judge Hawkins, you asked about my client's clan.

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So I just want to let you know, my client, all of my clients in the family don't speak any English, didn't speak any English.

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And so we never had the opportunity to communicate other than through interpreters.

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So I'm not aware of the paternal or maternal clans and other many goats.

[00:02:13] Speaker 02:
Judge, just be again.

[00:02:15] Speaker 02:
I think you are aware, I know you are aware, but just to keep in mind, the Navajos are largely ranchers.

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They live in isolated, extended family units.

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The Hopis are completely the opposite.

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They are a Pueblo tribe and they live in villages.

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So the Hopis are clustered in an area that's now the Hopi Reservation, primarily three mesas which contain a number of Hopi villages.

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The Navajo surrounded that group of Hopi, and they were, as I say, out in like isolated ranchers.

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They were cowboys.

[00:02:47] Speaker 03:
If I could focus it on the case a little bit, you know, I mean, obviously, there are some unique aspects to the Indian law portion of this.

[00:03:00] Speaker 03:
But at the end of the day, this is really an agency review, isn't it?

[00:03:04] Speaker 03:
I mean, aren't we looking at this and reviewing it for substantial evidence?

[00:03:08] Speaker 02:
Yes.

[00:03:09] Speaker 03:
And so maybe you could deal with that.

[00:03:11] Speaker 03:
I mean, obviously, that's a pretty heavy burden for you and your clients.

[00:03:19] Speaker 03:
And maybe you could walk through and explain why you think there was no substantial evidence.

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Because as I read this record, there's a lot of things going this way and that way.

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But that's exactly what the substantial evidence standard is designed to protect against is when you have a lot of conflicting evidence in the record.

[00:03:39] Speaker 03:
You know, the fact finder and adjudicator is usually given a lot of deference.

[00:03:45] Speaker 02:
I understand.

[00:03:46] Speaker 04:
Now, since it's a de novo review in terms of the legal issues... In your opening brief, you argued that the hearing officer should have considered extra record evidence in its decision, namely for prior hearing officer decision.

[00:04:06] Speaker 04:
Were they ever provided in the administrative record?

[00:04:09] Speaker 04:
I don't see them.

[00:04:10] Speaker 02:
I believe that they were, the ones that we submitted, John.

[00:04:13] Speaker 02:
Where are they?

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But again, I don't think that that's really the important issue.

[00:04:16] Speaker 02:
I'd like to focus the court on the substantial evidence.

[00:04:20] Speaker 02:
I'd like to just go forward.

[00:04:21] Speaker 01:
Here's what's important, answering the judge's question.

[00:04:26] Speaker 01:
Yes, sir.

[00:04:26] Speaker 01:
And do you remember the question you asked?

[00:04:29] Speaker 01:
Yes.

[00:04:29] Speaker 01:
Can you answer it?

[00:04:31] Speaker 02:
I'm sorry.

[00:04:32] Speaker 02:
I thought I had.

[00:04:33] Speaker 02:
I thought the four hearings of Mr. Murkow had conducted in other cases that we had submitted evidence to show that in this case he had varied or chosen to proceed.

[00:04:47] Speaker 04:
Where were they in the administrative record was my question.

[00:04:49] Speaker 02:
I'm sorry?

[00:04:50] Speaker 04:
Where were those decisions in the administrative record?

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They would have been attached originally to our motion for summary judgment.

[00:04:59] Speaker 02:
It would be in the addendum in the excerpt of record.

[00:05:02] Speaker 02:
But, again, I don't expect to address those issues in particular, but I'm happy to if you have questions.

[00:05:09] Speaker 04:
But what I'd like to, again, so... In your evening brief, you say John Lee's testimony regarding his personal knowledge as to Mr. Ucom Charlie, Mr. Minnigold's presence at his HPL home site in the early 70s was completely ignored.

[00:05:25] Speaker 04:
But you don't offer any record citation to substantiate that.

[00:05:31] Speaker 04:
Can you substantiate that it was completely ignored?

[00:05:34] Speaker 02:
Yes, Your Honor.

[00:05:35] Speaker 02:
If I may, we're dealing with administrative agency decisions, of course.

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And so, in this case, we have one hearing officer who's been the only hearing officer for over 40 years.

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Every decision has been Mr. Murkhouse.

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In this situation, we are talking about family Namedigoats who are living in what's called

[00:05:56] Speaker 02:
Black Mesa, which is a highly elevated area, and that was part of the joint use area, which was basically area established for both use, Navajo and Hopi.

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And then they also, like most Navajo tribal members, had a second seasonal home, which is typically referred to as a summer home.

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That normally would be in the lower elevation.

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It would be flatter typically, and that area would be, like in this case, would be Cowell Springs for my clients.

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They had a farm there.

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They didn't have any residents there, but they had a farm there.

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They would go in the spring to plant, and they would go back in the fall to harvest.

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But by and large, they always lived up in Black Mesa and in a smaller remote canyon called Porcupine Canyon, which through a wash in the rainy season

[00:06:42] Speaker 02:
basically flooded the area.

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It was the only access to the home site.

[00:06:46] Speaker 02:
The family, just as I could, John Lee is the uncle of my client, Charlie.

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Charlie's father is Red.

[00:06:54] Speaker 02:
That would be John Lee's brother.

[00:06:56] Speaker 02:
John Lee had, I'm sorry, Red had two wives, Kate, who was my client, Charlie Manigault's mother, and he had a second wife who was her sister, Lucy.

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And so they lived in one particular area at the bottom of this canyon.

[00:07:12] Speaker 02:
The May Homer was his older sister, Charlie's older sister.

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When she got married, she moved out of the canyon up to the top of the mesa with her husband.

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So she was two miles away up top.

[00:07:24] Speaker 02:
His uncle, John Lee, was still living down here.

[00:07:30] Speaker 04:
You're staying your version of the facts, but it's not necessarily accepted by the hearing office.

[00:07:37] Speaker 02:
Let me ask if I could say hi.

[00:07:38] Speaker 02:
John Lee was his uncle.

[00:07:40] Speaker 02:
John Lee, like,

[00:07:41] Speaker 02:
Charlie and Red spoke no English, no education, and so they basically were farmers and ranchers.

[00:07:51] Speaker 02:
John Lee had his own hearing two years separate from my client Charlie.

[00:07:58] Speaker 02:
In John Lee's hearing, Officer Murkow found Mr. Lee, his uncle, to be completely credible, and he reversed the agency's decision to deny John Lee

[00:08:09] Speaker 02:
And in fact, John Lee was certified, even though, like Charlie and his dad, identical.

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Not listed on the enumeration, which is ideal, like a census.

[00:08:19] Speaker 04:
Is it possible that a finer effect can hear a witness two different times and find they're credible in one instance and not credible in another instance?

[00:08:31] Speaker 02:
I think that is possible, but you're speaking about the same issues, same time frame, locations, and everything.

[00:08:36] Speaker 02:
It would be unlikely that they would differ very much.

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And so John Lee was found credible.

[00:08:41] Speaker 02:
Charlie was a witness for John Lee at his hearing, and John Lee was a witness for Charlie at his hearing.

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The other witnesses were his wife Elsie and his older sister May Homer and his uncle John Lee.

[00:08:55] Speaker 02:
The testimony basically, in this case, what I think is important is the folks living down in Porcupine Canyon, like many other Navajo families on the Hopi Partition lands, were in a remote area.

[00:09:07] Speaker 02:
deliveries, no roads, nothing.

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And the only access, as the relocation acknowledges, is the wash, which half the time is running with water.

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So it's a very, very isolated area.

[00:09:20] Speaker 02:
They're down below, and the enumeration, by and large, was on the surface of Badakh Mesa.

[00:09:25] Speaker 02:
So there were a number of families, including John Lee, who was living there, was certified there, but had no structures left.

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There was no history of him being there until he had his hearing in front of Judge Berkow.

[00:09:39] Speaker 02:
Charlie would be the same situation.

[00:09:41] Speaker 02:
Charlie was living in the bottom of the canyon.

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He's the only son, which is important, because in the Navajo culture, it's critical for the men, young men particularly,

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to take care of the livestock.

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And so he had five sisters, but he was the only son.

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So he bore the responsibility of almost all the daily chores in terms of livestock farming, et cetera.

[00:10:04] Speaker 02:
His farm, as I said, was in Cow Springs.

[00:10:07] Speaker 02:
Cow Springs was also where Elsie, many goats, was living.

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And at that time, they had not known each other.

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In fact, they didn't know each other until they were married, which was arranged marriage.

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So Charlie had his carton filled down where Elsie lived.

[00:10:24] Speaker 02:
They got married.

[00:10:25] Speaker 03:
And at that time, by and large, because of the construction freeze and because of the limitation... Council, doesn't this case sort of depend on whether they had an established residence at a particular place?

[00:10:38] Speaker 03:
Isn't that what this boils down to?

[00:10:40] Speaker 02:
Well, they have to show that in 1974, they resided on the HPL, and between then and 1986.

[00:10:47] Speaker 03:
And I thought the hearing officer said that when they went and looked at where they said that they had lived and resided during that time, there was no evidence of prior habitation there.

[00:10:59] Speaker 02:
I'm sorry, Judge, but that's not correct.

[00:11:02] Speaker 03:
When Mr. Shelton who... Wait, it's not correct that that's what the hearing officer said or it's not correct that those are the facts?

[00:11:08] Speaker 02:
Not correct that those are the facts.

[00:11:10] Speaker 02:
Okay.

[00:11:12] Speaker 02:
Joe Shelton was the person who went out always to inspect these homes.

[00:11:16] Speaker 02:
He was a Navajo person.

[00:11:18] Speaker 02:
Here's my question.

[00:11:19] Speaker 03:
I know that's your version, but how are we supposed to determine that?

[00:11:23] Speaker 03:
What are we supposed to... How do we analyze this in a way to say your facts are correct and they have to be correct

[00:11:33] Speaker 03:
And the hearing officer was just mistaken.

[00:11:35] Speaker 03:
Is there something in the record that says the hearing officer went here and looked at this area and said there was no evidence of habitation, and here's the evidence of habitation?

[00:11:49] Speaker 02:
Yes.

[00:11:49] Speaker 02:
Again, Joe Shelton, he was the one who investigated the home sites.

[00:11:54] Speaker 02:
He's the one who did the report about my client's home sites.

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He's the one that tells the court now through his reports

[00:12:02] Speaker 02:
the inaccessible area that he didn't even go down all the way because it was flooded.

[00:12:07] Speaker 02:
He did go, and Charlie did show him, Charlie and Elsie showed him what they said were four Hogan's, which would be the extended family home units.

[00:12:17] Speaker 02:
Joe Shelton in his report said there were four home sites.

[00:12:21] Speaker 02:
Two Hogan sites had no evidence.

[00:12:24] Speaker 02:
Two Hogan sites had evidence, including ash piles, which is basically leftover from all the fire, et cetera.

[00:12:32] Speaker 02:
and the auto parts.

[00:12:36] Speaker 02:
Both John Lee had the same basic issue.

[00:12:38] Speaker 02:
They both had old auto parks at home areas, which looked like they were homes.

[00:12:44] Speaker 02:
And in fact, Mr. Shelton in his report says that there were four homes, or how many homes there were, they were all destroyed, taken away, the materials by the Hopi tribe, once they took occupancy of that area and my client vacated.

[00:13:01] Speaker 02:
Joe Shelton says, and he also testified in John Lee's case, he also said there were no structures.

[00:13:06] Speaker 02:
He also said there were no, other than remnants, there was no other indication.

[00:13:11] Speaker 02:
But they found that based on the testimony of John Lee and Charlie and other family members, that they did live there.

[00:13:18] Speaker 02:
In fact, it was well documented that they lived there for a number of years.

[00:13:22] Speaker 02:
Charlie, when Charlie started working, he commuted to Page from Black Mesa.

[00:13:27] Speaker 02:
when he was married to his wife Elsie, she remained in Cow Springs with her family, her mother, and her children, ultimately, five children.

[00:13:37] Speaker 02:
And Charlie remained up in Black Mesa because he had to take care of his parents and his grandparents and their livestock.

[00:13:43] Speaker 02:
And so he commuted to Page during the week for work.

[00:13:46] Speaker 02:
And then every two weeks, he would come down to Cow Springs with his paycheck.

[00:13:51] Speaker 02:
And he would spend time with his wife and children.

[00:13:53] Speaker 04:
So is the essence of your argument

[00:13:56] Speaker 04:
that the government can point to no difference at all between the evidence regarding Mr. Lee and the evidence regarding Mr. Manygoats?

[00:14:06] Speaker 02:
I'd say it's very, very similar other than the judge made a decision.

[00:14:09] Speaker 02:
That's not my question.

[00:14:13] Speaker 02:
Okay, I'm sorry.

[00:14:14] Speaker 02:
If you repeat the question, I'll try to answer it directly.

[00:14:16] Speaker 04:
Is your argument that the government can point to no evidence showing a distinction between Mr. Lee and Mr. Manygoats habitation?

[00:14:27] Speaker 02:
Well, they lived close, but they lived separately, of course.

[00:14:31] Speaker 04:
Charlie... It's a yes or no.

[00:14:37] Speaker 02:
John Lee was an uncle much older.

[00:14:39] Speaker 02:
My client was at the next level of family down.

[00:14:42] Speaker 02:
He was like Charlie and read, no education, no English.

[00:14:49] Speaker 02:
Charlie had one year of my client, one year of education.

[00:14:52] Speaker 02:
So again, everything that was done in Navajo needed interpreters for everything.

[00:14:57] Speaker 03:
Council, do you want to reserve you?

[00:14:58] Speaker 03:
You're down to one minute.

[00:14:59] Speaker 03:
Do you want to reserve for rebuttal?

[00:15:01] Speaker 02:
Yes, please.

[00:15:01] Speaker 03:
OK, thank you.

[00:15:15] Speaker 00:
Good morning, Your Honors, and may it please the court, Caitlin Shugart Schmidt here on behalf of O'Near.

[00:15:20] Speaker 00:
You know, Your Honor, here, as I think we've all sort of honed in on, the hearing officer determined that Charlie Manygoats had not met his burden of proof to show that he resided on Hopi Partition lands, specifically as of December 22nd, 1974.

[00:15:33] Speaker 00:
This court reviews that determination under the highly deferential substantial evidence standard.

[00:15:40] Speaker 00:
And accordingly, this court should uphold the denial of benefits.

[00:15:43] Speaker 00:
I'm happy to start with the last point that was just discussed, which is the difference, of course, between Charlie Manygoats' case and Mr. Lee's case.

[00:15:51] Speaker 00:
Of course, any case isn't binding on any particular case within the system, but I will say that, of course, there is, on its face, a very clear difference between the two, which was that in his uncle's case, John Lee was considered to have given credible testimony.

[00:16:07] Speaker 00:
And if he had given credible testimony about his nephew's location, that would have been something that even

[00:16:13] Speaker 00:
in Charlie's hearing, Charlie's counsel could have pointed to, right?

[00:16:17] Speaker 00:
And say, John Lee testified credibly a few years ago.

[00:16:20] Speaker 00:
In that testimony, he testified about where his nephew lived at that time.

[00:16:24] Speaker 00:
And that could have been used in this case, but it wasn't.

[00:16:27] Speaker 00:
And I think it's obvious that it wasn't because that's not what the testimony said.

[00:16:30] Speaker 00:
And I suppose what's really important just at base here is the fact that we have a situation where, pushing back a little bit on your earlier comment, Judge Nelson, I don't think that this is a case where there's a lot of evidence that goes either way.

[00:16:43] Speaker 00:
I actually think if you look down the full list of evidence, this is a case that leans very, very heavily, if not entirely, towards the idea that Charlie did not meet his burden of proof to show that he lived in this particular place.

[00:16:55] Speaker 03:
But I guess the point is that that's still reviewed for substantial evidence.

[00:17:00] Speaker 03:
I mean, there is some evidence.

[00:17:01] Speaker 03:
There's testimony.

[00:17:02] Speaker 03:
I think you've got to be fair.

[00:17:03] Speaker 03:
There's testimony here.

[00:17:05] Speaker 03:
But they didn't find it credible.

[00:17:09] Speaker 03:
And the standard, we're not re-adjudicating this.

[00:17:13] Speaker 03:
We're saying is there any evidence?

[00:17:14] Speaker 03:
You're saying there's a lot of evidence.

[00:17:16] Speaker 03:
Maybe you're right.

[00:17:17] Speaker 03:
We don't even need to go that far, right?

[00:17:19] Speaker 00:
That's correct, Your Honor.

[00:17:20] Speaker 00:
I mean, I think it's here.

[00:17:21] Speaker 00:
It's not a question about whether there's no other plausible or, you know, the other version of the evidence has to be impossible or anything like that.

[00:17:29] Speaker 00:
In that realm, it's just the question of whether

[00:17:31] Speaker 00:
The hearing officer here reasonably looked at the evidence he had in front of him and made a supported determination by what is in front of him in the record in getting to that decision.

[00:17:41] Speaker 01:
John Lee in his hearing testified that he resided at the Mesa.

[00:17:48] Speaker 00:
That is my understanding is that he testified that he resided in the Mesa.

[00:17:52] Speaker 00:
But at least I have not seen anything in any of the record that's been pointed to that said he testified

[00:17:57] Speaker 00:
you know, that in 1974, his, his nephew was residing, you know, also next question.

[00:18:02] Speaker 00:
Okay.

[00:18:03] Speaker 00:
Yeah.

[00:18:03] Speaker 00:
My understanding is there's, there's nothing there, you know, and I will say just sort of as a broad point, of course, you know, I think throughout the briefing and at argument today, there have been a lot of sort of assertions put forward about the nature of living arrangements at this time.

[00:18:16] Speaker 00:
But, you know, I would ask your honors to actually go back to the, the administrative record in this case and look at which of those statements are actually supported by items in the testimony or other affirmative evidence that was put forward.

[00:18:26] Speaker 01:
But Charlie, many goats to the government's knowledge have an enrollment card.

[00:18:32] Speaker 00:
I'm not aware.

[00:18:33] Speaker 00:
I do think that this is helpful in pointing the court.

[00:18:36] Speaker 01:
Your answer is you don't know.

[00:18:38] Speaker 00:
I don't know.

[00:18:38] Speaker 00:
Not that I have seen in the record.

[00:18:40] Speaker 00:
Not that I'm aware of.

[00:18:42] Speaker 00:
What I would ask Your Honor to consider just in the context of that question too is of course, O'Neill's regulations here put forward a wide variety of sort of evidentiary documentation that someone could put forward that an applicant could put forward as part of their claim.

[00:18:56] Speaker 00:
And I think it's helpful here to not just look at, you know, what was put forward or what was testified to credibly or not, but also the absence of anything else that could have supported a claim that applicant would have been entitled to put forward and chose not to.

[00:19:11] Speaker 00:
Do you have any other specific questions about portions of this case?

[00:19:15] Speaker 00:
I'm more than happy to discuss any of the issues, but I also want to be respectful of your time.

[00:19:20] Speaker 03:
No, I think we don't have any more questions.

[00:19:23] Speaker 03:
Thank you.

[00:19:24] Speaker 00:
Okay.

[00:19:24] Speaker 00:
Thank you.

[00:19:32] Speaker 02:
Your honor, the evidence will show, and Judge Burkow decided that my clients were both credible when they testified.

[00:19:38] Speaker 02:
And all of their testimony, where they lived, what they did, except for the evidence that they testified to about their residency in the canyon.

[00:19:47] Speaker 02:
Both John Lee and his brother Red, they lived in the canyon.

[00:19:51] Speaker 02:
The only one on the mesa is May Homer.

[00:19:54] Speaker 02:
And that's only because she moved up there after she was married.

[00:19:57] Speaker 02:
So all of my client's residence was in that canyon.

[00:20:00] Speaker 02:
And they had a farm in Cow Springs.

[00:20:03] Speaker 02:
My client married during a time when his family was restricted in construction where they were living in Black Mesa.

[00:20:11] Speaker 02:
They couldn't add, build a home for him and his family.

[00:20:13] Speaker 02:
So she lived with her family.

[00:20:15] Speaker 02:
He lived with hers until 1975 when he moved to White Mesa with his kids and his wife.

[00:20:21] Speaker 02:
and continued, because I was closer even to Paige where he was working.

[00:20:24] Speaker 02:
There was no evidence at all, no testimony, no documentary evidence, no photographs, nothing that ever puts my client Charlie Manygoats in Cow Springs even overnight.

[00:20:38] Speaker 02:
There's never anybody who's ever said Charlie ever spent one night.

[00:20:42] Speaker 02:
He lived up in Black Mesa, traveled about seven miles to pick up his wife

[00:20:47] Speaker 02:
brought the kids back so they could be with his side of the family.

[00:20:51] Speaker 02:
He never once, no one testified that he ever lived in Council Street.

[00:20:54] Speaker 02:
So that's what I would say when I say there's no evidence.

[00:20:57] Speaker 02:
There's not a single witness.

[00:20:59] Speaker 02:
My witness.

[00:21:00] Speaker 03:
Council, we've got your argument.

[00:21:03] Speaker 03:
We've given you a little bit extra time here.

[00:21:05] Speaker 03:
So I think, do you have a concluding statement?

[00:21:09] Speaker 03:
One sentence.

[00:21:11] Speaker 02:
No evidence of

[00:21:13] Speaker 02:
Residency in Cal Springs, all evidence is evidence on Black Mesa HPL, just like John Lee.

[00:21:19] Speaker 03:
Okay, thank you.

[00:21:20] Speaker 03:
Thank you.

[00:21:20] Speaker 03:
Thank you to both counsel for your arguments in the case.

[00:21:23] Speaker 03:
The case is now submitted.

[00:21:26] Speaker 03:
We will move on to our second argument set for today, which is Ambrosio versus Progressive Preferred Insurance Company, case number 24-2708.

[00:21:46] Speaker 03:
You know what, we're going to take a short recess and then we will come back.

[00:21:54] Speaker 03:
We'll just take a two minute recess.

[00:21:57] Speaker 03:
We'll go out.