Alto et al v. Jewell et al, No. 3:2011cv02276 - Document 125 (S.D. Cal. 2015)

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

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Alto et al v. Jewell et al Doc. 125 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 ALBERT P. ALTO, et al., 11 Case No. 11-cv-2276-BAS(BLM) Plaintiffs, 12 (1) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; AND v. 13 14 15 16 SALLY JEWELL, Secretary of the United States Department of the Interior, et al., 17 ORDER: Defendants. (2) GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT [ECF Nos. 103, 110] 18 19 On September 30, 2011, Plaintiffs commenced this declaratory and injunctive- 20 relief action, seeking judicial review of a decision issued by the Assistant Secretary – 21 Indian Affairs (“Assistant Secretary” or “AS-IA”) under the Administrative Procedure 22 Act (“APA”), 5 U.S.C. § 706(2)(A), against the Secretary of the Department of the 23 Interior and other federal officials.1 Each defendant is sued in his or her respective 24 official capacity. The complaint was amended once with the First Amended Complaint 25 26 27 28 1 The current defendants in this action include Sally Jewell, Secretary of the United States Department of the Interior; Kevin K. Washburn, Assistant Secretary of Indian Affairs; Michael Black, Director of the Bureau of Indian Affairs (“BIA”) of the Department of Interior; and Robert Eben, Superintendent of the Department of the Interior Indian Affairs, Southern California Agency. Ken Salazar and Larry Echo Hawk, originally named as defendants, are no longer parties to this action by operation of Federal Rule of Civil Procedure 25(d). -1- 11cv2276 Dockets.Justia.com 1 (“FAC”) being the operative complaint. This action arises from the approval of a 2 recommendation from the Enrollment Committee of the San Pasqual Band of Diegueño 3 Mission Indians (“San Pasqual Band” or “Band”) to disenroll the named plaintiffs from 4 the Band’s membership roll.2 Now pending before the Court are the parties’ cross- 5 motions for summary judgment. 6 Having reviewed the papers submitted and oral argument from both parties, the 7 Court DENIES Plaintiffs’ motion for summary judgment, and GRANTS Defendants’ 8 cross-motion for summary judgment. 9 10 I. BACKGROUND3 11 “For nearly two centuries now, [federal law has] recognized Indian tribes as 12 ‘distinct, independent political communities,’ qualified to exercise many of the powers 13 and prerogatives of self-government.” Plains Commerce Bank v. Long Family & Cattle 14 Co., 554 U.S. 316, 327 (2008) (citations omitted) (quoting Worcester v. Georgia, 6 Pet. 15 515, 559 (1832)) (citing United States v. Wheeler, 435 U.S. 313, 322-23 (1978)). The 16 “sovereignty that the Indian tribes retain is of a unique and limited character.” 17 2 18 19 20 21 22 23 24 25 26 27 28 The following are the named plaintiffs in this action (collectively referred to as “Plaintiffs” or “Marcus Alto, Sr.’s descendants”): Albert P. Alto; Andre E. Alto; Anthony Alto; Brandon Alto; Christopher J. Alto; Chasity Alto; Daniel J. Alto, Sr.; Daniel J. Alto, Jr.; Dominique N. Alto; Raymond E. Alto; Raymond E. Alto, Sr.; Raymond J. Alto; Robert Alto; Victoria Ballew; Angela Ballon; Juan J. Ballon; Rebecca Ballon; Rudy Ballon; Janice J. Banderas; Pedro Banderas; Peter Banderas; Victor Banderas; Monica Diaz; Anthony Forrester; Dustin Forrester; Johanna Forrester; Sarah Forrester; Ernest Gomez; Henrietta Gomez; Kathleen M. Gomez; Marcus G. (Minor); Lydia Green; Paul Anthony Green; Humberto R. Green; Mary Jo Hurtado; Justin A. Islas; Alexis L. (Minor); Cynthia Ledesma; Destiny C. Ledesma; Jesse L. (Minor); Isabelle M. Sepeda; Lupe Sepeda; Deborah L. Vargas; Desiree Vargas; Jeremiah Vargas; Jessiah Vargas; Terry Weight; Roland Alto, Sr.; Roland Alto, Jr.; Amanda Minges; David Brokiewicz; Diana Brokiewicz; Patricia Brokiewicz; Jason Alto; Carol Edith Cavazos; Aimee R. Diaz; Jessica Diaz; Toni Diaz; Daniel Gomez; Lisa Huntoon; Christine Martinez; Donelle Martinez; Justine Martinez; Marlene Martinez; Sabrina Martinez; and Cassandra Sepeda. 3 Some documents included in the administrative record have multiple sets of page numbers. One set appears to be original numbering for the record submitted to the Assistant Secretary. Those numbers appear in the form of ALTO-2012-0001137, for example, which is the first page of the Assistant Secretary’s January 28, 2011 Decision (“2011 Decision”). Despite the presence of the other number sets, the parties’ briefs appear to use this original numbering. The Court will do the same. Accordingly, references to the administrative record will be designated with the prefix “AR” followed by the appropriate Bates-stamped page number. Applied to the example above, a reference to the first page of the Assistant Secretary’s 2011 Decision will read “AR 1137.” -2- 11cv2276 1 Wheeler, 435 U.S. at 323. “[T]ribes are subject to plenary control by Congress,” but 2 they also remain “separate sovereigns pre-existing the Constitution.” Santa Clara 3 Pueblo v. Martinez, 436 U.S. 49, 56 (1978); see United States v. Lara, 541 U.S. 193, 4 200 (2004). “Thus, unless and ‘until Congress acts, the tribes retain’ their historic 5 sovereign authority.” Michigan v. Bay Mills Indian Cmty., — U.S. —, 134 S. Ct. 2024, 6 2030 (2014) (citing Wheeler, 435 U.S. at 323). 7 “As part of their residual sovereignty, tribes retain power to legislate and to tax 8 activities on the reservation, including certain activities by nonmembers, to determine 9 tribal membership, and to regulate domestic relations among members.” Plains 10 Commerce Bank, 554 U.S. at 327 (citations omitted). “An Indian tribe has the power 11 to define membership as it chooses, subject to the plenary power of Congress.” 12 Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007). “A tribe’s right to define its own 13 membership for tribal purposes has long been recognized as central to its existence as 14 an independent political community.” Santa Clara Pueblo, 436 U.S. at 72 n.32. 15 The San Pasqual Band’s Organization4 16 A. 17 Following a tumultuous history with white settlers dating back to the 1850s, “[i]n 18 1954 the descendants of the San Pasqual Band realized that they would lose . . . [a] 19 small piece of mislocated reservation land unless they organized to reclaim the 20 reservation” that was initially created by President Ulysses S. Grant’s executive order 21 in 1870. (AR 1138-39.) “The Indians were required by the [Bureau of Indian Affairs] 22 to develop proof of their descent from the original San Pasqual members.” (AR 1139.) 23 On July 29, 1959, the Department of the Interior published a notice of Proposed 24 Rulemaking, setting out regulations intended to “govern the preparation of a roll of the 25 San Pasqual Band of Mission Indians in California.” (AR 1139.) The final rule was 26 27 28 4 The background describing the San Pasqual Band’s organization is taken almost exclusively from the Assistant Secretary’s 2011 Decision. (AR 1137-56.) A timeline of the Band’s history is also included in the administrative record. (See AR 2092-94; see also AR 2060-67.) The Band’s organizational history is not in dispute in this action. -3- 11cv2276 1 codified at 25 C.F.R. Part 48, published March 2, 1960. (Id.) See also 25 Fed. Reg. 2 1829 (Mar. 2, 1960) (codified at 25 C.F.R. pt. 48). These regulations “directed that a 3 person who was alive on January 1, 1959, qualified for membership in the band if that 4 person was named as a member of the Band on the 1910 San Pasqual census, or 5 descended from a person on the 1910 census and possessed at least 1/8 blood of the 6 band, or was able to furnish proof that he or she was 1/8 or more blood of the Band.” 7 (AR 1140.) 8 Under the regulations promulgated in Part 48, an Enrollment Committee (“EC”) 9 was formed, “consisting of three primary and two alternate members, all of whom were 10 shown on a 1910 Bureau of Indian Affairs (BIA) census of San Pasqual Indians.” (AR 11 1140.) The regulations provided application and review procedures for any individuals 12 interested in applying for membership in the San Pasqual Band. (Id.) Though the 13 BIA’s Field Representative accepted the applications, the Enrollment Committee 14 reviewed applications and made recommendations that ultimately ended up with the 15 Area Director. (Id.) “The Director was authorized by the Regulations to determine 16 whether a person is qualified for membership.” (Id.) Any appeals would then go to the 17 Commissioner and the Secretary of the Interior. (Id.) “Thus, under the regulations, the 18 authority to issue a final decision respecting membership in the Band was vested in 19 officials in the Department of the Interior.”5 (Id.) The implementation of the 20 regulations resulted in the creation of a membership roll for the San Pasqual Band in 21 1966. (Id.) 22 In November 1970, the Band voted on its Constitution, which was subsequently 23 approved by the AS-IA in January 1971. (AR 1140; see also AR 1599-1600.) Article 24 III of the San Pasqual Band’s Constitution provided the following: 25 // 26 // 27 5 28 Several of the titles in the Department of the Interior have since changed names: the BIA’s Field Representative is equivalent to today’s Agency Superintendent; the Area Director is now known as the Regional Director; and the Commissioner is now known as the Director of the BIA. (AR 1140.) -4- 11cv2276 Section 1. Membership shall consist of those living persons whose names appear on the approved Roll of October 5, 1966, according to Title 25, Code of Federal Regulations, Part 48.1 through 48.15. 1 2 3 5 Sec[tion] 2. All membership in the band shall be approved according to the Code of Federal Regulations, Title 25, Part 48.1 through 48.15 and an enrollment ordinance which shall be approved by the Secretary of the Interior. 6 (AR 1591; see also AR 1140.) “The plain language of the Band’s Constitution 7 incorporates the Part 48 regulations as published in 1960 as the controlling law of the 8 Band.” (AR 1141; see also AR 1591.) 4 9 In November 1983, the United States Claims Court issued an award to the San 10 Pasqual Band in a compromise settlement. (AR 1141.) Funds were subsequently 11 appropriated by Congress to satisfy the award. (Id.) 12 In 1987, the regulations were rewritten to assist in the distribution of the 13 judgment funds by bringing the membership roll current. (AR 1141, 1573-77.) The 14 final rule was codified in 25 C.F.R. Part 76, published August 20, 1987. 52 Fed. Reg. 15 31391 (Aug. 20, 1987) (codified at 25 C.F.R. pt. 76). The revised regulations, Part 76, 16 which became effective September 1987, included the following summary description: 17 21 In accordance with a judgment plan . . . prepared pursuant to the Indian Judgment Funds Distribution Act, as amended, a portion of the judgment funds is to be distributed on a per capita basis to all tribal members living on April 27, 1985. The revision to the regulations will provide procedures, including a deadline for filing applications, to govern the preparation of a membership roll of the San Pasqual Band as of April 27, 1985, which will serve as the basis for the per capita distribution of judgment funds. 22 (AR 1573.) This revision was later removed in June 1996 because “[t]he purpose for 23 which these rules were promulgated has been fulfilled and the rules are no longer 24 required.” 61 Fed. Reg. 27780 (June 3, 1996). “Members of the San Pasqual Band 25 have been enrolled as required in satisfaction of the judgments of the United States 26 Claims Court docket 80-A.” Id. 27 // 28 // 18 19 20 -5- 11cv2276 1 B. Marcus Alto, Sr. and His Descendants’ Enrollment 2 Plaintiffs are descendants of Marcus R. Alto, Sr. Neither Marcus Alto, Sr. nor 3 his descendants were included on the 1966 membership roll. (AR 1140.) But on 4 November 15, 1987, he and several of his descendants did apply for enrollment under 5 the 1987 regulations. (AR 1141.) “His descendants claim[ed] to be eligible for 6 enrollment in the Band based on the alleged biological link that Marcus Sr. provides 7 to Maria Duro Alto and Jose Alto[.]” (Id.) Maria Duro Alto6 and Jose Alto are 8 identified as Marcus Alto, Sr.’s parents, and it is uncontested that both parents were 9 full-blood members of the Band. (AR 1141-42, 1516-18.) 10 Marcus Alto, Sr. died on June 16, 1988, before his enrollment application had 11 been decided. (AR 1141, 1516-18.) However, the BIA continued processing his 12 descendants’ applications, and in May 1991, the BIA Superintendent notified the EC 13 of his determination that Marcus Alto, Sr.’s descendants were eligible for enrollment 14 in the San Pasqual Band. (AR 1141.) The Band challenged that determination in favor 15 of Marcus Alto, Sr.’s descendants, which was ultimately appealed to the Assistant 16 Secretary – Indian Affairs, who at the time was Ada E. Deer. (Id.; see also AR 752- 17 54.) 18 On April 10, 1995, in a final decision (“1995 Decision”) from the Department 19 of the Interior, the Assistant Secretary affirmed the Regional Director’s finding from 20 January 1994 that Marcus Alto, Sr. was full-blooded Diegueño Indian, upheld the 21 enrollment of Marcus Alto, Sr. and his descendants, and found that they are eligible for 22 inclusion on the Band’s distribution roll. (AR 1141-42, 1516-18.) 23 // 24 // 25 // 26 // 27 6 28 Maria Alto’s maiden name is Maria Duro. Throughout the administrative record, she is referred to as Maria Alto, Maria Duro Alto, and Maria Duro. The three names are used interchangeably to refer to Marcus Alto, Sr.’s mother. -6- 11cv2276 1 C. The Assistant Secretary’s 2011 Decision 2 A little over a decade later, Marcus Alto, Sr. and his descendants’ enrollment 3 status once again came to the forefront. In 2007, Marcus Alto, Sr.’s descendants’ 4 qualification for enrollment was challenged, supported with purportedly new evidence. 5 (AR 1142.) The EC reopened the matter of Marcus Alto, Sr.’s ancestry, and Marcus 6 Alto, Sr.’s descendants were provided with an opportunity to rebut the new evidence. 7 (Id.) Relying on the 1960 regulations permitting disenrollment when the decision to 8 enroll was based on information “subsequently determined to be inaccurate,” the EC 9 proposed a revised membership roll to the BIA based on “new evidence provid[ing] 10 substantial and convincing proof that Marcus R. Alto, Sr. [was] not the biological son 11 of Maria Duro Alto, and that information provided on the 1987 membership application 12 . . . was inaccurate and incomplete.” (AR 1142, 2010-11, 2013.) 13 On November 26, 2008, the Regional Director rejected the EC’s 14 recommendation to approve the disenrollment of Marcus Alto, Sr.’s descendants. (AR 15 1466-74.) In a ten-page written decision, the Regional Director concluded that the 16 information submitted by the EC “does not demonstrate the BIA’s prior enrollment 17 determination [in 1995] is inaccurate, and therefore does not support deletion of Mr. 18 [Marcus] Alto from the Band’s membership roll.” 19 proceedings leading to the 1995 Decision, this challenge was ultimately appealed to the 20 Assistant Secretary – Indian Affairs, who at the time was Larry Echo Hawk. (See AR 21 1137-58.) (AR 1466.) But like the 22 On January 28, 2011, the Assistant Secretary issued his twenty-page decision 23 reversing the Regional Director’s decision. (AR 1137-56.) To reach his conclusion, 24 the Assistant Secretary identified six “key disputed facts” that first needed to be 25 resolved: 26 // 27 // 28 // -7- 11cv2276 1. Whether the 1907 baptismal certificate for “Roberto Marco Alto” is that of Marcus Alto, Sr. A key subpart of this determination is assessing whether Marcus Alto was born in 1905, 1907, or some other year. 1 2 3 2. Whether Marcus Alto’s failure to declare whether or not he was adopted on his application for enrollment in the Band, dated November 15, 1987, is persuasive evidence. 4 5 3. Whether Maria Duro Alto’s statement that she had “no issue” (on her application for inclusion on the 1933 Roll of California Indians) is persuasive evidence. 6 7 4. Whether the non-inclusion of Marcus Alto’s name on the early San Pasqual censuses is persuasive evidence. 8 5. Whether testimonial evidence in the record is persuasive evidence. 9 10 6. Whether DNA testimony submitted by Alto descendants is persuasive evidence. 11 12 (AR 1147.) 13 Before reaching his conclusion, the Assistant Secretary recognized “[t]here was 14 universal acceptance of the fact that Marcus Alto, Sr., was raised from infancy by Jose 15 Alto and Maria Duro Alto.” (AR 1155.) It was also emphasized that “[m]uch of the 16 record evidence [was] conflicting, incomplete, or demonstrably inaccurate[,]” and that 17 “[t]he record itself lack[ed] the most vital documents, including particularly a birth 18 certificate for Marcus Alto.” (Id.) Despite that, the Assistant Secretary found that “fair 19 interpretation of the most probative, objective, and competent evidence available amply 20 supports the Enrollment Committee’s recommendation to disenroll the Alto 21 descendants.” (Id.) Particular emphasis was given to: 22 23 24 25 26 27 28 // Marcus Alto’s absence from the early San Pasqual Indian censuses that showed Jose and Maria Alto; the competent testimony of tribal elders, family friends, and Dr. Shipek; and the facts set out in the 1907 baptismal certificate as corroborated by testimony in the affidavits. [And] the evidence relied upon by the Alto descendants [was] either self-reported by Marcus Alto, Sr.,—who cannot provide a first-hand account of his birth and parentage—or, in the case of information on Marcus Alto’s application for inclusion on the 1933 Roll of California Indians, supplied by people with no obvious or inferable knowledge of Marcus Alto’s parentage. -8- 11cv2276 1 (AR 1155-56.) Based on the evidence available at the time and by a preponderance of 2 the evidence, the Assistant Secretary reversed the Regional Director’s decision and 3 determined that Marcus Alto, Sr.’s descendants’ “names must be deleted from the 4 Band’s roll.”7 (AR 1156.) 5 6 D. Procedural History of This Action 7 On September 9, 2011, Plaintiffs filed this complaint seeking, among other 8 things, judicial review of the Assistant Secretary’s 2011 Decision under the APA and 9 the arbitrary-and-capricious standard. Defendants answered. 10 Shortly after this action began, the Court granted Plaintiffs’ motion for a 11 preliminary injunction, restraining and enjoining Defendants from removing Plaintiffs 12 from the San Pasqual Band’s membership roll and from taking any further action to 13 implement the Assistant Secretary’s 2011 Decision for the duration of this lawsuit. 14 (ECF No. 24.) The Court also enjoined the Assistant Secretary from issuing certain 15 interim orders. (Id.) 16 On March 13, 2012, the complaint was amended upon receiving leave from the 17 Court. (ECF No. 50.) In the FAC, Plaintiffs assert five claims to set aside the 18 Assistant Secretary’s 2011 Decision: (1) declaratory relief based upon the doctrine of 19 res judicata; (2) declaratory relief on the basis that Defendant Echo Hawk violated the 20 enrolled Plaintiffs’ right to procedural due process; (3) declaratory relief and reversal 21 of the 2011 Decision based upon the arbitrary-and-capricious standard; (4) “federal 22 agency action unlawfully withheld and request for preliminary injunctive relief”; and 23 (5) “declaratory and injunctive relief by all Plaintiffs against all Defendants[.]”8 24 25 26 27 28 7 Interestingly, the Assistant Secretary left open the possibility of revisiting Marcus Alto, Sr.’s enrollment status in the future yet again because “evidence may come to light in the future that could overturn the reasoning set out [in the 2011 Decision].” (AR 1156.) For example, “[u]ncovering Marcus Alto, Sr.’s[] birth certificate, or conducting more thorough and accurate genetic testing, may prove the biological connection claimed by the Alto descendants.” (Id.) 8 Plaintiffs have since abandoned their second claim for procedural-due-process violations. (See Pls.’ Reply 1:10–13.) -9- 11cv2276 1 Defendants answered the FAC. 2 After the Court granted the San Pasqual Band the limited right to intervene, the 3 Band pursued an interlocutory appeal to the Ninth Circuit. The Ninth Circuit affirmed 4 this Court’s determination that it had jurisdiction to review the Assistant Secretary’s 5 disenrollment decision and that the San Pasqual Band is not an indispensable party. 6 Alto v. Black, 738 F.3d 1111, 1131 (9th Cir. 2013). The Ninth Circuit also remanded 7 to “allow the district court formally to clarify the original injunction to conform with 8 the [Ninth Circuit’s] understanding of the injunction,” which was eventually resolved 9 by the parties. Id. 10 Now pending before the Court are the parties’ cross-motions for summary 11 judgment.9 (ECF Nos. 103, 110.) The administrative record was lodged with the Clerk 12 of the Court. (ECF No. 51.) Following briefing, the parties appeared for oral argument 13 on September 21, 2015. 14 15 II. STANDARD OF REVIEW 16 Summary judgment is proper if the pleadings, discovery, and affidavits show that 17 there is “no genuine dispute as to any material fact and [that] the movant is entitled to 18 judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 19 U.S. 317, 322 (1986). Summary judgment is a particularly appropriate tool for 20 resolving claims challenging agency action. See Occidental Eng’g Co. v. INS, 753 F.2d 21 766, 770 (9th Cir. 1985). As the administrative record constitutes the entire factual 22 record in this case and there are no facts at issue between the parties, this matter is ripe 23 for summary judgment. 24 A final agency action is reviewable under 5 U.S.C. § 706 when “there is no other 25 adequate remedy in a court.” 5 U.S.C. § 704. “Under the APA, [a court] will reverse 26 27 28 9 This action was originally assigned to the Honorable Irma E. Gonzalez. Upon Judge Gonzalez’s retirement, the case was transferred to the Honorable Michael M. Anello. In May 2014, this case was then transferred to this Court. - 10 - 11cv2276 1 an agency’s action if it is ‘arbitrary, capricious, an abuse of discretion, or otherwise not 2 in accordance with law,’ or if its factual findings are ‘unsupported by substantial 3 evidence.’” Love Korean Church v. Chertoff, 549 F.3d 749, 754 (9th Cir. 2008) 4 (internal citations and quotation marks omitted); see 5 U.S.C. § 706(2)(A), (E). Review 5 under this standard is “searching and careful,” but also “narrow.” Marsh v. Oregon 6 Natural Res. Council, 490 U.S. 360, 378 (1989). “Although [the court’s] inquiry must 7 be thorough, the standard of review is highly deferential; the agency’s decision is 8 ‘entitled to a presumption of regularity,’ and [the court] may not substitute [its] own 9 judgment for that of the agency.” San Luis & Delta-Mendota Water Auth. v. Jewell, 10 747 F.3d 581, 601 (9th Cir. 2014) (quoting Citizens to Preserve Overton Park, Inc. v. 11 Volpe, 401 U.S. 402, 415-16 (1971)). 12 An agency decision is arbitrary and capricious: if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an 14 important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the 15 agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. 16 Motor Vehicle Mfgs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); 13 17 see also Hovhannisyan v. U.S. Dep’t of Homeland Sec., 624 F. Supp. 2d 1135, 1149 18 (C.D. Cal. 2008) (“[A]n agency abuses its discretion when it fails to comply with [its 19 own] regulations.”). The agency must “cogently explain why it has exercised its 20 discretion in a given manner,” and the reviewing court must determine “whether the 21 decision was based on a consideration of the relevant factors and whether there has 22 been a clear error of judgment.” State Farm, 463 U.S. at 43. 23 Where the agency has relied on “relevant evidence [such that] a reasonable mind 24 might accept as adequate to support a conclusion,” its decision is supported by 25 “substantial evidence.” Bear Lake Watch, Inc. v. Fed. Energy Regulatory Comm’n, 324 26 F.3d 1071, 1076 (9th Cir. 2003). Even “[i]f the evidence is susceptible of more than 27 one rational interpretation, [the court] must uphold [the agency’s] findings.” Id. A 28 court must also “uphold a decision of less than ideal clarity if the agency’s path may - 11 - 11cv2276 1 reasonably be discerned . . . [but] may not infer an agency’s reasoning from mere 2 silence.” Arlington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008). The burden is on 3 the plaintiffs to show any decision or action was arbitrary and capricious. See Kleppe 4 v. Sierra Club, 427 U.S. 390, 412 (1976). 5 6 III. DISCUSSION10 7 Plaintiffs’ challenge to the Assistant Secretary’s 2011 Decision can be divided 8 into two categories. The first is a purely legal challenge, arguing that the Assistant 9 Secretary’s prior determination in the 1995 Decision precludes the conclusion in the 10 2011 Decision under the doctrines of claim and issue preclusion.11 The second attacks 11 factual determinations made by the Assistant Secretary in the 2011 Decision. In the 12 latter category, Plaintiffs argue that the Assistant Secretary’s findings are arbitrary and 13 capricious, an abuse of discretion, or otherwise not in accordance with law. The gist 14 of Defendants’ response is that the Assistant Secretary’s 2011 Decision was reasonable 15 and, as a result, should be affirmed by this Court. The Court will address each issue raised by the parties below. 16 17 // 18 // 19 // 20 21 22 23 24 25 26 27 28 10 Plaintiffs request that the Court take judicial notice of: (1) a page from the 1930 U.S. census for Marcus Alto, Sr.; (2) the San Diego County Death Certificate for Francisco Alto, Jr.; and (3) statements by Connie Alto (Pls.’ Reply 5:12–22). In requesting judicial notice, Plaintiffs attempt to add evidence to the record. The Court agrees with Defendants that Plaintiffs attempt to improperly introduce extra-record evidence to challenge the “correctness or wisdom of the agency’s decision.” See San Luis & Delta-Mendota, 747 F.3d at 602. The Court also remains unconvinced that the aforementioned materials are “necessary to determine if the agency has considered all factors and explained its decision.” See Fence Creek Cattle Co. v. U.S. Forest Serv., 602 F.3d 1125, 1131 (9th Cir. 2010) (emphasis added). Therefore, the Court DENIES Plaintiffs’ request for judicial notice. However, even if the Court considered these documents, it would ultimately have no effect on the conclusion of this order. 11 The Court will refer to res judicata as claim preclusion and collateral estoppel as issue preclusion. See Gonzalez v. Cal. Dep’t of Corrections, 739 F.3d 1226, 1230 n.3 (9th Cir. 2014). - 12 - 11cv2276 Preclusion12 1 A. 2 Plaintiffs argue that 1995 Decision concluding that Marcus Alto, Sr. was full- 3 blooded Diegueño Indian, among other things, precludes re-litigation of his blood 4 quantum. 5 enrollment decisions. The Court agrees with Defendants. Defendants contend that neither principle bars reevaluation of prior 6 Claim preclusion “forecloses successive litigation on the very same claim, 7 whether or not relitigation of the claim raises the same issues as the earlier suit.” 8 Gonzalez, 739 F.3d at 1230 n.3 (internal quotation marks omitted). In other words, 9 once rendered, judgment is treated “as the full measure of relief to be accorded between 10 the parties on the same ‘claim’ or ‘cause of action.’” Hydranautics v. FilmTec Corp., 11 204 F.3d 880, 887 (9th Cir. 2000). An action is barred under claim preclusion where 12 “(1) the prior litigation involved the same parties or privies, (2) the prior litigation was 13 terminated by a final judgment on the merits, and (3) the prior litigation involved the 14 same ‘claim’ or ‘cause of action’ as the later suit.” Id. at 888. 15 Issue preclusion “bars successive litigation of an issue of fact or law actually 16 litigated and resolved in a valid court determination essential to the prior judgment, 17 even if the issue recurs in the context of a different claim.” Gonzalez, 739 F.3d at 1230 18 n.3 (internal quotation marks omitted). It applies where “(1) the issue necessarily 19 decided at the previous proceeding is identical to the one which is sought to be 20 21 22 23 24 25 26 27 28 12 The Assistant Secretary did not address preclusion in the 2011 Decision. As a result, application of preclusion principles is not reviewed under the APA’s arbitrary-and-capricious standard. The parties do, however, both appear to implicitly agree that preclusion is an issue properly before the Court. Cf. Aguayo v. Jewell, No. 13-cv-1435, 2014 WL 6473111, at *17 (S.D. Cal. Nov. 18, 2014) (preclusion arguments were first presented to the Department of the Interior before review by the district court in a disenrollment context). The Court’s independent research suggests the same. See Canonsberg Gen. Hosp. v. Sebelius, 989 F. Supp. 2d 8, 27 n.15 (D.D.C. 2013) (citing Barlow v. Collins, 397 U.S. 159, 166 (1970) (“The rule of the courts should, in particular, be viewed hospitably where . . . the question sought to be reviewed does not significantly engage the agency’s expertise.”); Athlone Indus., Inc. v. Consumer Prod. Safety Comm’n, 707 F.2d 1485, 1489 (D.C. Cir. 1983) (holding that administrative exhaustion was not required where issue was strictly legal, “[n]o factual development or application of agency expertise [would] aid the court's decision,” a decision by the court would not “invade the field of agency expertise or discretion,” and controversy “presents issues on which courts and not administrators are more expert” when the only dispute relates to the meaning of a statutory term)). - 13 - 11cv2276 1 relitigated; (2) the first proceeding ended with a final judgment on the merits; and (3) 2 the party against whom collateral estoppel is asserted was a party or in privity with a 3 party at the first proceeding.” Hydranautics, 204 F.3d at 885. “The party asserting 4 preclusion bears the burden of showing with clarity and certainty what was determined 5 by the prior judgment.” Id. 6 In United States v. Utah Construction & Mining Co., 384 U.S. 394, 421-22 7 (1966), the Supreme Court removed any doubt that preclusion principles may apply to 8 administrative proceedings. Preclusion particularly applies in circumstances “[w]hen 9 an administrative agency is acting in a judicial capacity and resolved disputed issues 10 of fact properly before it which the parties have had an adequate opportunity to 11 litigate.” Utah Constr., 384 U.S. at 422. Since Utah Construction, “courts have 12 increasingly given res judicata and collateral estoppel effect to the determinations of 13 administrative agencies acting in a judicial capacity.” United States v. Lasky, 600 F.2d 14 765, 768 (9th Cir. 1979). 15 “Despite this general acceptance, the doctrines are not to be applied to 16 administrative decisions with the same rigidity as their judicial counterpart.” Lasky, 17 600 F.2d at 768 (citing Am. Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 18 3, 10 (5th Cir. 1974); United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973)); see 19 also Valencia-Alvarez v. Gonzalez, 469 F.3d 1319, 1324 n.7 (9th Cir. 2006) (“[I]n the 20 administrative law context, ‘the principles of collateral estoppel and res judicata are 21 applied flexibly.’”). “This is particularly true where their application would contravene 22 an overriding public policy.” Lasky, 600 F.2d at 768 (citing Tipler v. E.I. du Pont de 23 Nemours & Co., 443 F.2d 125, 128 (6th Cir. 1971)). Consequently, “the need to 24 proceed cautiously in this area is acute, and due regard must be given in each case as 25 to whether the application of the doctrine is appropriate in light of the particular prior 26 administrative proceedings.” Id. 27 // 28 // - 14 - 11cv2276 1 1. Application of Preclusion Principles 2 When comparing the 1995 Decision and 2011 Decision, it is easy to jump to the 3 conclusion that preclusion principles apply—Marcus Alto, Sr.’s blood degree was a 4 factual issue previously litigated to its conclusion in the 1995 Decision, and it is at 5 issue here once again. See Hydranautics, 204 F.3d at 885, 888. But that is an 6 oversimplification of the factual and legal cogs at work. Though the 1995 Decision 7 and 2011 Decision addressed arguably the same factual issue regarding Marcus Alto, 8 Sr.’s blood degree to contradicting conclusions, it is important to consider that the legal 9 foundations to reach those respective conclusions are quite different. 10 In the 1995 Decision, AS-IA Ada E. Deer found that Marcus Alto, Sr. “possessed 11 4/4 Indian blood of the Band” in upholding his and his descendants’ enrollment and 12 finding that “they are eligible for inclusion on the Band’s Docket 80-A distribution 13 roll.” (AR 1518.) To reach that conclusion, AS-IA Ada E. Deer relied on the 14 regulatory framework in 25 C.F.R. Part 76 (1987), 52 Fed. Reg. at 31392-93, a 15 regulation implemented in order to distribute certain judgment funds issued as an award 16 in a compromise settlement with the San Pasqual Band. (AR 1141.) Section 76.4 of 17 the 1987 regulations provides the enrollment requirements relied upon in the 1995 18 Decision. (AR 1516.) 19 The regulatory framework supporting the 2011 Decision is quite different. AS- 20 IA Larry Echo Hawk relied on the regulatory framework in 25 C.F.R. Part 48 (1960), 21 29 Fed. Reg. at 1831, which was also adopted by the San Pasqual Band through its 22 Constitution. (AR 1142.) Section 48.14(d) of the 1960 regulations requires that the 23 membership roll be kept current by deleting “[n]ames of individuals whose enrollment 24 was based on information subsequently determined to be inaccurate . . . subject to the 25 approval of the Secretary.” 29 Fed. Reg. at 1831. That is the authority that AS-IA 26 Larry Echo Hawk explicitly invoked in reaching his conclusion in the 2011 Decision 27 that “the enrollment of the Marcus Alto, Sr.[] descendants was based on information 28 subsequently determined to be inaccurate, and as a result, their names must be deleted - 15 - 11cv2276 1 from the Band’s roll.” (AR 1142, 1156.) 2 The two agency decisions relied on fundamentally different regulations 3 permitting their respective actions: Part 76, which was later removed, permitted the 4 Assistant Secretary to review new applications for enrollment; and Part 48 permitted 5 and continues to permit the Assistant Secretary keep the Band’s membership rolls 6 accurate and current. See 52 Fed. Reg. at 31392-93; 29 Fed. Reg. at 1831. These 7 circumstances call for the “flexible” application of preclusion principles to the 8 administrative agency decision currently before this Court. See Valencia-Alvarez, 469 9 F.3d at 1324 n.7. Proceeding more cautiously, it is apparent that though the 1995 10 Decision and 2011 Decision address a similar factual issue, the conclusions are very 11 different in nature. The 1995 Decision relied on the now-defunct 1987 regulations 12 permitting enrollment in order to distribute certain settlement funds while the 2011 13 Decision relied on the still-operative 1960 regulations and the Band’s Constitution 14 permitting reevaluation of membership status under certain circumstances. This critical 15 difference compels this Court to conclude that application of preclusion principles is 16 not appropriate upon reviewing the two administrative proceedings with closer 17 scrutiny. See Lasky, 600 F.2d at 768. 18 19 2. Policy Considerations 20 Overriding policy considerations relevant to this case also support the 21 determination that applying preclusion principles would be inappropriate. See Lasky, 22 600 F.2d at 768. There are at least two applicable policies that warrant consideration: 23 (1) “[a] tribe’s right to define its own membership for tribal purposes”; and (2) “federal 24 policy favoring tribal self-government[.]” See Alto, 738 F.3d at 1115 (citing Cahto 25 Tribe of Laytonville Rancheria v. Dutschke, 715 F.3d 1225, 1226 (9th Cir. 2013); 26 Lewis v. Norton, 424 F.3d 959, 961 (9th Cir. 2005)). Though the San Pasqual Band 27 vested ultimate authority over membership decisions to the Department of the Interior 28 when its Constitution was adopted, that does not minimize a tribe’s conscious decision - 16 - 11cv2276 1 to incorporate language from certain federal regulations. See id. 2 In 1970, presumably contemplating the full impact of § 48.14 of the 1960 3 regulations as the vehicle for keeping its membership roll current, the San Pasqual 4 Band voted and approved its Constitution incorporating the still-operative provisions 5 of Part 48. (AR 1141, 1591.) From that, it is easy to infer that the Band fully intended 6 to keep its membership roll current and accurate under the provisions of Part 48. In 7 other words, the San Pasqual Band defined its membership as not one that is absolute, 8 but subject to review under certain circumstances, in part, to promote accuracy. That 9 is further highlighted by the fact that Part 76 is now defunct after serving a specific 10 purpose during a discrete time period. 11 Strictly applying preclusion principles to the circumstances of this case would 12 negate both policies of a tribe’s right to define its own membership and tribal self- 13 government. By precluding the 2011 Decision as a result of the conclusion reached in 14 the 1995 Decision, the Court would effectively nullify portions of Part 48 and the San 15 Pasqual Band’s Constitution that allows review of membership decisions based on 16 information subsequently deemed to be inaccurate. It would also override federal 17 policy favoring tribal self-government, which in this case is the San Pasqual Band’s 18 incorporation of Part 48 through the approval of its Constitution. 19 Keeping these policies in mind, this Court is not prepared to make a legal 20 determination based on preclusion principles finding that the San Pasqual Band cannot 21 review membership decisions when it explicitly contemplated that authority through 22 the approval of its Constitution and adoption of Part 48. See Alto, 738 F.3d at 1115. 23 To find otherwise would not only offend the San Pasqual Band’s right to define its own 24 membership, but also violate federal policy favoring tribal self-government. These 25 policy considerations in conjunction with the fact that the two agency decisions are 26 based on different regulations—one of which is now defunct, and the other which 27 remains operative and incorporated into the Band’s Constitution—compel this Court 28 to find that strictly applying preclusion principles would be inappropriate. See Lasky, - 17 - 11cv2276 1 600 F.2d at 768. 2 3 B. 4 “Under the APA, [a court] will reverse an agency’s action if it is ‘arbitrary, 5 capricious, an abuse of discretion, or otherwise not in accordance with law,’ or if its 6 factual findings are ‘unsupported by substantial evidence.’” Love Korean Church, 549 7 F.3d at 754 (internal citations and quotation marks omitted); see 5 U.S.C. § 706(2)(A), 8 (E). The scope of the court’s review under the APA is narrow, and a court may not 9 substitute its own judgment for that of the agency. See San Luis & Delta-Mendota, 747 10 Challenges to the Assistant Secretary’s Factual Determinations F.3d at 601. 11 Agency decisions are examined to “ensure that it has articulated a rational 12 relationship between its factual findings and its decision[.]” Fence Creek Cattle, 602 13 F.3d at 1132. The agency’s factual determinations are entitled to substantial deference 14 and should be upheld if they are supported by the administrative record. Arkansas v. 15 Oklahoma, 503 U.S. 91, 112 (1992); see also Melkonian v. Ashcroft, 320 F.3d 1061, 16 1065 (9th Cir. 2003) (noting that an agency’s factual findings must be upheld “if 17 supported by reasonable, substantial, and probative evidence in the record”); 18 Bonnichsen v. United States, 367 F.3d 864, 880 n.19 (9th Cir. 2004) (“Substantial 19 evidence means such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion.”); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999) 21 (“Substantial evidence is more than a scintilla but less than a preponderance.”). If the 22 record supports more than one rational interpretation of the evidence, the court will 23 defer to the agency’s decision. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 24 2005). 25 The administrative record “consists of all documents and materials directly or 26 indirectly considered by agency decision-makers and includes evidence contrary to the 27 agency’s positions.” Thompson v. U.S. Dep’t of Labor, 885 F.2d 551, 555 (9th Cir. 28 1989) (emphasis in original). “Agencies are not required to consider every alternative - 18 - 11cv2276 1 proposed nor respond to every comment made. Rather, an agency must consider only 2 ‘significant and viable’ and ‘obvious’ alternatives.” Ron Peterson Firearms, LLC v. 3 Jones, 760 F.3d 1147, 1165 (10th Cir. 2014) (quoting 10 Ring Precision, Inc. v. Jones, 4 722 F.3d 711, 724 (5th Cir. 2013)) (internal quotation marks omitted). A court must 5 “uphold a decision of less than ideal clarity if the agency’s path may reasonably be 6 discerned[.]” Arlington, 516 F.3d at 1112. 7 Plaintiffs challenge seven factual determinations that the Assistant Secretary 8 relied upon to reach the conclusion to disenroll Marcus Alto, Sr.’s descendants. Each 9 challenge will be discussed below. Though all of Plaintiffs’ challenges are asserted 10 under § 706(2)(A)’s arbitrary-and-capricious standard, the Court will also review these 11 challenges under § 706(2)(E) for substantial evidence. 12 13 1. Weight Given to the San Pasqual Censuses 14 Noting that “[t]he record includes BIA censuses of the San Pasqual Indians from 15 1907 through 1913, all of which include Jose Alto, Maria Duro, and Jose’s son, Frank 16 Alto,” the Assistant Secretary found that “the absence of Marcus Alto, under any name, 17 from these Indian censuses to be very weighty evidence that the couple who raised him 18 did not consider him to be a San Pasqual Indian—which would be consistent with his 19 being adopted.” (AR 1151.) Plaintiffs argue that the weight given the San Pasqual 20 censuses was arbitrary and an abuse of discretion for three reasons: (1) “the censuses 21 as now acknowledged were inaccurate”; (2) the Assistant Secretary “failed to address 22 the Band’s hired anthropology expert’s evidence”; and (3) “the 1920 U.S. census 23 identifies Marcus Alto Sr. as Maria and Jose Alto’s son, and the Alto family household 24 is identified as ‘Indian.’” (Pls.’ Mot. 12:1–17.) 25 To begin, there is no acknowledgment that the censuses are inaccurate. This 26 proposition appears to be rooted in a response in the answer where Defendants admit 27 that the censuses “contain inaccuracies.” (See Answer ¶ 76.) Censuses “contain[ing] 28 inaccuracies” is very different from stating that the censuses are “inaccurate.” The - 19 - 11cv2276 1 former is an assessment of the censuses’ components whereas the latter is an 2 assessment of the censuses as a whole. Plaintiffs fail to identify evidence suggesting 3 that the censuses are inaccurate in their entirety. 4 In their reply, Plaintiffs elaborate that the “censuses are inherently flawed” 5 because “Jose Alto was reported the same age, age 50, on the 1907, 1908 and 1910 6 censuses.” (Pls.’ Reply 4:1–5.) Now it may be fair to conclude that the censuses are 7 inherently flawed for the purposes of determining a member’s age, particularly Jose 8 Alto’s. However, Plaintiffs fail to persuade the Court that that “flaw” permeates to 9 other aspects of the censuses, such as the Band’s members at the time of the censuses 10 were conducted. 11 Reviewing the censuses from 1907 through 1912, though there are 12 inconsistencies in some members’ ages, there are none identified with respect to the 13 composition of Jose and Maria Alto’s nuclear family. The 1907 census indicates that 14 the family consisted of Jose Alto, Maria Alto, and Frank Alto; Marcus Alto, Sr. is not 15 listed even though he was allegedly born in 1905.13 (AR 2576.) The same family 16 members are listed in each census from 1908 through 1913 indicating Jose Alto as 17 husband, Maria Alto as wife, and Frank Alto as son, but without any mention of 18 Marcus Alto, Sr. 19 inaccuracies regarding members’ ages existing throughout these censuses, the censuses 20 are nonetheless incredibly consist with respect to the family consisting of Jose Alto, 21 Maria Alto, and Frank Alto without any mention of Marcus Alto, Sr. Any inaccuracies 22 regarding age do not negate the entirety of each census from 1907 through 1912, 23 including the cornerstone of lineal descendancy for the San Pasqual Band, the 1910 24 census. (AR 2581, 2541, 2597, 2602, 2605, 2376.) Despite likely 25 26 27 28 13 Like several other facts in this case, Marcus Alto, Sr.’s birth year remains a point of contention. Plaintiffs take the position that he was born in 1905. (FAC ¶ 82.) Based on that allegation, Plaintiffs must admit that Marcus Alto, Sr. was alive at the time each census was conducted from 1907 through 1912. - 20 - 11cv2276 1 The consistency throughout these censuses is also significant. Repeatedly, 2 throughout a span of seven years, Jose and Maria Alto had the opportunity to identify 3 their progeny, and they did, repeatedly identifying Frank Alto as their son. If Marcus 4 Alto, Sr. was indeed the biological child of Jose and Maria Alto, presumably he would 5 have been treated the same as Frank Alto. But he was not. From that, the Assistant 6 Secretary reached a reasonable and sound conclusion that Marcus Alto, Sr. was not 7 Jose and Maria Alto’s biological son. 8 In contrast to the seven censuses from 1907 through 1912, the 1920 U.S. census 9 apparently indicates Marcus Alto, Sr. as “Indian” and the son of Jose and Maria Alto.14 10 To reconcile the 1920 census with the censuses from 1907 through 1912, the Assistant 11 Secretary found “the adoption theory to be the most logical explanation for the fact that 12 Marcus Alto is not listed with his parents on the Indian censuses, but does appear on 13 the Federal census of 1920.” (AR 1151.) The suggestion appears to be that sometime 14 between the 1907-1912 censuses and the 1920 census, Jose and Maria Alto adopted 15 Marcus Alto, Sr. (See id.) Another possibility is that Jose and Maria Alto treated the 16 BIA censuses differently as relating specifically to tribe members compared to the 1920 17 U.S. census conducted by the federal government. These possibilities are also 18 consistent with the Assistant Secretary’s conclusion. Though less than ideal in clarity, 19 the Assistant Secretary’s “path may reasonably be discerned.” See Arlington, 516 F.3d 20 at 1112 (A court must “uphold a decision of less than ideal clarity if the agency’s path 21 may reasonably be discerned[.]”). Because this factual determination is supported by 22 the administrative record, the determination and the decision will be given substantial 23 deference. See Arkansas, 503 U.S. at 112; Bayliss, 427 F.3d at 1214 n.1. 24 // 25 26 27 28 14 The Court reviewed the 1920 census documents submitted. (AR 1807, 1983.) It was unable to locate the precise text indicating Jose Alto, Maria Alto, Frank Alto, and Marcus Alto, Sr. due to the low quality of the document scanned, but will presume the names are present given that all parties agree that the names are indeed present in the 1920 census. - 21 - 11cv2276 1 The last point Plaintiffs present is that the Assistant Secretary “failed to address 2 the Band’s hired anthropology expert’s evidence.” (Pls.’ Mot. 12:1–8.) Specifically, 3 Plaintiffs argue that the Assistant Secretary failed to consider information in the 121st 4 footnote in an April 2010 report prepared by Christine Grabowski, Ph.D., which 5 purportedly identifies “several children born to other San Pasqual tribal members, 6 between 1897 and 1903, who were NOT identified on the San Pasqual censuses[.]” 7 (Id.) 8 The footnote Plaintiffs identify appears in a portion of the report examining what 9 certain individuals living in Riverside County in 1910 “knew about Marcus Alto’s 10 parentage.” (AR 1047.) The footnote is associated with the following paragraph: 13 Carolina Benson’s children by both Jose Castro and Augustin Orosco and their spouses appeared repeatedly in the baptismal records of the St. Francis de Sales Church. Not only did they have several children between all of them, but they served as sponsors for each other’s offspring. 14 (AR 1048.) The footnote itself provides examples of Carolina Benson’s family 15 members serving as sponsors for each other’s offspring. (Id.) There is no mention of 16 who appeared or did not appear in relevant censuses. At best, the portion of the report 17 relevant to the footnote is an examination of the close ties between certain families 18 reflected in baptismal records. (See id.) But more accurately, Plaintiffs grossly 19 mischaracterize the footnote in the expert report, and the Assistant Secretary acted 20 reasonably in not addressing it. See Ron Peterson Firearms, 760 F.3d at 1165 (quoting 21 10 Ring Precision, 722 F.3d at 724) (Agencies are not required to “consider every 22 alternative proposed nor respond to every comment made. Rather, an agency must 23 consider only ‘significant and viable’ and ‘obvious’ alternatives.”). 11 12 24 25 2. Credibility of Certain Affidavits and Testimonial Evidence 26 In the 2011 Decision, the Assistant Secretary found that “the testimonial 27 evidence contained in affidavits by tribal elders, tribal enrollment committee members, 28 close acquaintances of Maria Duro Alto and Marcus Alto, and especially anthropologist - 22 - 11cv2276 1 Florence Shipek, Ph.D., to be very credible and probative respecting Marcus’s status 2 as biological or adoptive son of Jose and Maria Duro Alto.” (AR 1138.) The 3 collection of affidavits considered by the Assistant Secretary included three affidavits 4 from 1994 and six others from 2004. (AR 1150-51.) Focusing primarily on statements 5 by Felix Quisquis, Mellie Duenas, Florence C. Shipek, Ph.D., and Helen Mendez, 6 Plaintiffs appear to argue that the Assistant Secretary’s reliance on testimonial evidence 7 is arbitrary and capricious because it “contain[s] hearsay, lacks foundation and [is] 8 contradicted by the Band’s other evidence.” (Pls.’ Mot. 13:1–10.) 9 It is a “well-settled rule that agencies are not bound by strict rules of evidence 10 in cases brought under the Administrative Procedure Act.” Villegas-Valenzuela v. 11 Immigration & Naturalization Serv., 103 F.3d 805, 812 (9th Cir. 1996). Rather, “the 12 Administrative Procedure Act provides that ‘[a]ny oral or documentary evidence may 13 be received, but every agency shall as a matter of policy provide for the exclusion of 14 irrelevant, immaterial, or unduly repetitious evidence.’” Calhoun v. Bailar, 626 F.2d 15 145, 148 (9th Cir. 1980) (quoting 5 U.S.C. § 556(d)). “A sanction may not be imposed 16 or rule or order issued except on consideration of the whole record or those parts 17 thereof cited by a party and supported by and in accordance with the reliable, probative, 18 and substantial evidence.” Id. (quoting 5 U.S.C. § 556(d)) (internal quotation marks 19 omitted). 20 “[T]he classic exception to strict rules of evidence in the administrative context 21 concerns hearsay evidence.” Calhoun, 626 F.2d at 148. “Not only is there no 22 administrative rule of automatic exclusion for hearsay evidence, but the only limit to 23 the admissibility of hearsay evidence is that it bear satisfactorily indicia of reliability.” 24 Id. The test for admissibility requires “that the hearsay be probative and its use 25 fundamentally fair.” Id. “[I]t is not the hearsay nature per se of the proffered evidence 26 that is significant, it is its probative value, reliability and the fairness of its use that are 27 determinative.” Id. 28 // - 23 - 11cv2276 1 The Assistant Secretary noted that Dr. Shipek is “an anthropologist who worked 2 closely with the Band in establishing its base roll” who “described her careful research 3 into the ancestry of the San Pasqual Band, and her work with tribal elders.” (AR 1150.) 4 In her affidavit, Dr. Shipek noted, among other things, that she “met with all the band 5 elders and each provided [her] with a written list of ancestors and children,” “searched 6 the records of San Diego Mission, St. Josephs [sic] Cathedral, and Holy Trinity Church 7 for baptismal, marriage and death records of all persons having those names as written, 8 or by other potential spellings (by pronunciation) and also by translations back into 9 Kumeyaay names, or transliterations of the Kumeyaay names,” and “examined San 10 Pasqual Valley school records, the County tax assessor records, county birth, marriage 11 and death records, voter registration records, country court records, and available 12 written reminiscences.” (AR 2195.) Dr. Shipek’s research led her to the conclusion 13 that Jose Alto and Maria Duro Alto “had no children but had raised one belonging to 14 a non-Indian family.” (AR 2195-96.) The thoroughness of Dr. Shipek’s research 15 strongly supports the Assistant Secretary’s determination that her affidavit was 16 probative, reliable, and fair to use. See Calhoun, 626 F.2d at 148. 17 It is worth reiterating that the Assistant Secretary found the affidavits “very 18 credible and probative” as they related to Marcus Alto, Sr.’s “status as biological or 19 adoptive son of Jose and Maria Duro Alto.” (See AR 1138.) However, the credibility 20 challenges to the remaining affidavits are mostly critical of affiant assertions that are 21 not relevant to Marcus Alto, Sr.’s lineage. For example, Plaintiffs challenge Felix 22 Quisquis’ credibility on the basis that there was a discrepancy regarding his age (Pls.’ 23 Mot. 13:1–10), Mellie Duenas on the basis that there was a discrepancy regarding her 24 address (Pls.’ Mot. 13:11–18), and Mary Alto Arviso and Laura Guidry on the basis of 25 their ancestry (Pls.’ Mot. 13:19–14:13; Pls.’ Reply 8:1–15). 26 considerations may weigh against finding a particular affidavit credible, they do not 27 necessitate that conclusion. Rather, the fact finder—the Assistant Secretary in this 28 case—weighs various considerations to determine credibility. With respect to these - 24 - Though these 11cv2276 1 remaining affidavits, given that these considerations Plaintiffs identify are not relevant 2 to Marcus Alto, Sr.’s lineage, the Assistant Secretary acted reasonably in determining 3 the affidavits were credible for the purpose of determining whether Marcus Alto, Sr. 4 is the biological or adoptive son of Jose Alto and Maria Alto. 5 Plaintiffs also challenge statements that it was “common knowledge” Marcus 6 Alto, Sr. was non-Indian in two ways: (1) those making statements asserting this 7 “common knowledge” lacked personal knowledge and other foundational facts; and (2) 8 “common knowledge” is not probative or reliable evidence. With respect to the 9 assertions regarding personal knowledge and foundation, Plaintiffs attempt to strictly 10 apply the rules of evidence by invoking foundation requirements. As discussed above, 11 agencies are not bound by such a strict application of the rules of evidence for cases 12 brought under the APA. See Villegas-Valenzuela, 103 F.3d at 812. Rather, the 13 applicable standard is whether the evidence is irrelevant, immaterial, or unduly 14 repetitious. See Calhoun, 626 F.2d at 148. Plaintiffs fail to demonstrate that the 15 evidence identified making references to “common knowledge” is irrelevant, 16 immaterial, or unduly repetitious. See id. 17 Plaintiffs’ assertion that “common knowledge” is not probative or reliable 18 evidence sounds more in hearsay. They explain that “[c]ommon knowledge can be 19 based on a rumor that if repeated enough times can appear to be the truth[,]” and 20 “[r]umor is proof of no fact.” (Pls.’ Reply 7:5–19.) This criticism appears to be 21 directed at the nature of common knowledge being rooted in rumor, which in turn 22 derives from repetition of the statement that Marcus Alto, Sr. was not “Indian” and 23 adopted. (See id.) That is indeed hearsay. But the test for admissibility in the 24 administrative setting is whether the hearsay evidence is probative and its use is 25 fundamentally fair. See Calhoun, 626 F.2d at 148. Plaintiffs fail to demonstrate that 26 the affidavits making reference to common knowledge lack probative value or are not 27 fundamentally fair. See id. If Plaintiffs did not mean for this challenge to sound in 28 hearsay, the defective reasoning previously discussed remains—the criticisms directed - 25 - 11cv2276 1 at these affidavits are simply not relevant to Marcus Alto, Sr.’s lineage. (See Pls.’ 2 Reply 7:5–19.) 3 4 3. Weight of DNA Evidence 5 Plaintiffs make the following argument directed at the apparent disconnect 6 between the determination that Marcus Alto, Sr. is “non-Indian” and the DNA evidence 7 indicating Native American ancestry: 8 9 10 11 12 13 14 The AS-IA acknowledged the affidavits gave credence to the “adoption theory” because they stated that Marcus Alto Sr. was “‘Mexican, not Indian.” The AS-IA found that many “of the affidavits note that Marcus Alto was non-Indian and the child of a different family not just a different mother.” As emphasized, these statements were entitled to no weight and certainly not “substantial weight.” In finding the adoption theory probable, the AS-IA failed to give any weight to public record documents establishing that Marcus Alto Sr. publicly identified himself as “Indian” and DNA evidence that establishes that Raymond E. Alto has 30-percent Native American ancestry. 15 (Pls.’ Mot. 15:8–18 (citations omitted) (emphasis in original).) In response, 16 Defendants explain that “Plaintiffs[] mistakenly rely on DNA testing that shows a 17 descendant of the Alto family ‘has 30-percent Native American ancestry,’ possible only 18 if Marcus was a full-blood Indian as Plaintiffs theorize.” (Defs.’ Mot. 2716–28:5.) 19 The Assistant Secretary rejected Plaintiffs’ argument that DNA markers 20 indicating Native-American ancestry supports a finding that Marcus Alto, Sr. was of 21 San Pasqual ancestry for two reasons. (AR 1155.) The first reason was that the “type 22 of genetic testing relied on . . . does not provide accurate data on the proportion of 23 Indian ancestry.” (Id.) To support that reason, the Assistant Secretary cited to the 24 Office of Federal Acknowledgment’s explanation that “[u]nlike blood degree 25 calculations, the proportion[s] of the DNA markers tracked in such ethnicity testing are 26 not passed to children with predictable mathematical precision[,]” such that “[t]he child 27 of a father with 50 percent ‘Native American’ markers and a mother with no ‘Native 28 American’ markers does not have 25 percent ‘Native American’ markers.” (Id.) The - 26 - 11cv2276 1 Assistant Secretary’s second reason was that DNA results do not indicate whether the 2 Native-American markers are the result from San Pasqual Indian lineage or another 3 tribe. (Id.) These explanations adequately and reasonably addressed why the Assistant 4 Secretary chose not to rely on DNA evidence. 5 Plaintiffs’ challenge regarding the Assistant Secretary’s failure to give any 6 weight to documents establishing that Marcus Alto, Sr. publicly identified himself as 7 “Indian” is not supported by the record. To support this proposition, Plaintiffs direct 8 the Court’s attention to several documents in the administrative record. (Pls.’ Mot. 9 15:8–18 (citing AR 473, 487, 490, 1985, 2431, 2635).) The first document cited is the 10 1920 federal census, but this is not necessarily Marcus Alto, Sr. himself publicly 11 identifying himself as “Indian.” (AR 2431.) Even if the Assistant Secretary construed 12 the 1920 federal census as Marcus Alto, Sr.’s self-identification that he is “Indian,” the 13 Assistant Secretary already reconciled the 1920 federal census with the earlier censuses 14 finding that the consideration of all the censuses is consistent with the adoption theory. 15 (See AR 1151.) Several of the other documents identified face similar defects in that 16 they are not statements made directly from Marcus Alto, Sr. himself. (See AR 473, 17 487, 2431.) 18 There are, however, two documents—a marriage certificate and a social-security 19 document—where Marcus Alto, Sr. indeed identified himself as “Indian.” (AR 490, 20 2635.) In their reply, Plaintiffs characterize the value of these documents as a 21 reliability issue. (Pls.’ Reply 8:16–9:13.) They contend that the aforementioned 22 documents, including the 1920 federal census, corroborate the two documents where 23 Marcus Alto, Sr. self-identified himself as “Indian,” thereby providing greater 24 reliability. (See id.) Though Plaintiffs’ point may have merit, courts “must defer to a 25 reasonable agency action ‘even if the administrative record contains evidence for and 26 against its decision.’” Modesto Irrigation Dist. v. Gutierrez, 619 F.3d 1024, 1036 (9th 27 Cir. 2010) (quoting Trout Unlimited v. Lohn, 559 F.3d 946, 958 (9th Cir. 2009)). There 28 is ample evidence in the administrative record supporting the Assistant Secretary’s - 27 - 11cv2276 1 credibility determination, such as early census records and affidavits, among many 2 others, and weight given to certain evidence to reach the conclusion that Marcus Alto, 3 Sr. is not a San Pasqual lineal descendant. From that, the Assistant Secretary’s 4 reasoning can be easily discerned linking his conclusion to the factual findings, and 5 thus, the conclusion warrants deference. See Arkansas, 503 U.S. at 112; Bayliss, 427 6 F.3d at 1214 n.1; Arlington, 516 F.3d at 1112 (A court must “uphold a decision of less 7 than ideal clarity if the agency’s path may reasonably be discerned[.]”). 8 4. 9 Weight Given to Maria Duro’s “No Issue” Statement 10 Maria Duro Alto’s enrollment application showed “no issue” in the space for 11 providing information regarding the applicant’s children. (AR 1152.) She also 12 identified her husband as a full-blood Indian. (Id.) While considering the impact of 13 Maria Alto’s application, the Assistant Secretary noted “disturbing inconsistencies,” 14 but ultimately rejected the contention that the “no issue” statement lacked credibility. 15 (AR 1152-53.) 16 Two reasons informed the Assistant Secretary’s conclusion. First, he determined 17 that being able to neither read nor write did not establish whether Maria Alto spoke 18 and understood English. (AR 1153.) Based on information contained in the 1920 19 federal census, the Assistant Secretary found Maria Alto indeed spoke English, 20 suggesting that she understood the meaning of not only the question regarding her 21 children in the application but also her “no issue” response. (Id.) And second, under 22 the premise that “the distinction between ‘child,’ which term applies to both biological 23 and adopted children, and ‘issue,’ which does not, is a matter of great importance to all 24 parents[,]” the Assistant Secretary determined that “Maria Duro Alto would pay 25 scrupulous attention to that distinction is perfectly consistent with the theory that she 26 adopted Marcus Alto and was careful not to identify a ‘child’ who did not qualify as 27 an Indian.” 28 importance of the application question and her answer. (See id.) Accordingly, the (Id.) Based on these determinations, Maria Alto understood the - 28 - 11cv2276 1 Assistant Secretary concluded that “Maria Duro’s application contains a statement that 2 precludes Marcus Alto from being Maria Duro’s biological son, sworn by two 3 witnesses.” (Id.) 4 Plaintiffs challenge this finding on the grounds that the issue was “already 5 addressed, considered and rejected in the April 10, 1995 decision[,]” and the existence 6 of conflicting evidence. (Pls.’ Mot. 15:23–16:13; Pls.’ Reply 10:9–18.) The former 7 is essentially a preclusion argument, which the Court already rejected above. More 8 importantly, it grossly misstates what was determined in the 1995 Decision. As 9 Defendants accurately point out, the “no issue” statement is not mentioned anywhere 10 in the 1995 Decision, and as a consequence, was not an factor rejected or even 11 considered in the 1995 Decision. (See AR 1516-18.) 12 The latter challenges the Assistant Secretary’s ability to weigh evidence and 13 make credibility determinations. However, the existence of conflicting evidence alone 14 does not categorically negate the value of other evidence. It is worth repeating that the 15 administrative record “consists of all documents and materials directly or indirectly 16 considered by agency decision-makers and includes evidence contrary to the agency’s 17 positions.” Thompson, 885 F.2d at 555 (emphasis in original). And “[a]gencies are not 18 required to consider every alternative proposed nor respond to every comment made.” 19 Ron Peterson Firearms, 760 F.3d at 1165. Courts “must defer to a reasonable agency 20 action ‘even if the administrative record contains evidence for and against its 21 decision.’” Modesto Irrigation, 619 F.3d at 1036 (quoting Trout Unlimited, 559 F.3d 22 at 958). 23 What is important is not the existence of conflicting evidence, but rather the 24 existence of evidence supporting the agency’s reasoning. See Modesto Irrigation, 619 25 F.3d at 1036; Arlington, 516 F.3d at 1112. That said, the Assistant Secretary addressed 26 the fact that there is conflicting evidence in the administrative record and thoroughly 27 explained his reasoning to reach the determination that Maria Alto’s “no issue” 28 statement in her enrollment application was credible. (See AR 1153.) This is not a - 29 - 11cv2276 1 situation where a determination was less than ideal in clarity. See Arlington, 516 F.3d 2 at 1112. There is clear evidence that rationally and reasonably connects the evidence 3 in the administrative record to the Assistant Secretary’s finding. See id. 4 5 5. Marcus Alto, Sr.’s Birth Year 6 Recognizing that the “record is quite conflicted as to the year of Marcus Alto’s 7 birth,” the Assistant Secretary identified several documents that may assist in 8 determining Marcus Alto, Sr.’s birth year. (AR 1148-49.) Documents considered 9 included San Pasqual membership-roll records, social-security records, documents 10 filled out by Marcus Alto, Sr., the birth certificate of one of Marcus Alto, Sr.’s children, 11 and Marcus Alto, Sr.’s marriage certificate, among others. (Id.) Reiterating that “there 12 seems to be little certainty respecting the year in which Marcus Alto, Sr., was born,” 13 the Assistant Secretary found that Marcus Alto, Sr. was born in 1907. (AR 1149.) The 14 Assistant Secretary explained that any claims to have been born in different years was 15 “rationally explained as reflecting his desire to hide the fact he was under-aged at the 16 time of his marriage.” (Id.) 17 Plaintiffs argue that the Assistant Secretary’s conclusion regarding Marcus Alto, 18 Sr.’s birth year is arbitrary and capricious because he ignored evidence, improperly 19 gave weight to others, and failed to explain why certain evidence “had no relevance.” 20 (Pls.’ Mot. 16:17–17:24.) 21 Plaintiffs fail to provide any legal authority requiring the Assistant Secretary to 22 specifically identify every issue or every fact raised by the parties. More importantly, 23 the Court already rejected this line of reasoning, most recently in discussing the weight 24 given to Maria Duro’s “no issue” statement. 25 In reaching the conclusion that Marcus Alto, Sr. was born in 1907, perhaps the 26 Assistant Secretary did not explain every nuance in his reasoning to a level satisfying 27 Plaintiffs. But that is not the applicable standard. The evidence that Plaintiffs identify 28 is part of the administrative record, and as such, it is presumed to have been - 30 - 11cv2276 1 considered—directly or indirectly—by the Assistant Secretary. See Thompson, 885 2 F.2d at 555. At worst, the lack of a specific explanation addressing the evidence 3 identified by Plaintiffs is a finding that has “less than ideal clarity.” See Arlington, 516 4 F.3d at 1112. 5 What is important is not the existence of conflicting evidence, but rather the 6 existence of evidence supporting the agency’s reasoning. See Modesto Irrigation, 619 7 F.3d at 1036; Arlington, 516 F.3d at 1112. The Assistant Secretary provided a more 8 than adequate explanation of his reasoning, referencing documents that corroborate his 9 conclusion while also addressing the other possible birth years. (See AR 1148-49.) 10 Like the finding regarding Maria Duro’s “no issue” statement, this is not a situation 11 where a determination was less than ideal in clarity. See Arlington, 516 F.3d at 1112. 12 There is clear evidence that rationally and reasonably connects the evidence in the 13 administrative record to the Assistant Secretary’s finding. See id. 14 15 6. Frank Alto’s “Corroborative” Letter 16 In the 2011 Decision, the Assistant Secretary determined that “[c]orroborative 17 evidence that Marcus Alto was a non-tribal member being raised by Jose and Maria 18 Alto is found in two letters from Frank Alto, drafted in 1910, identifying Jose, Maria, 19 and himself as tribal members, but not mentioning Marcus Alto.” (AR 1154.) 20 Plaintiffs argue that this determination regarding to the corroborative value of these 21 two letters is arbitrary and capricious based on the speculation of an anthropologist 22 expert and Plaintiffs’ opinion that the signatures on the two Frank Alto letters are 23 “substantially different.” (Pls.’ Mot. 18:4–23; Pls.’ Reply 6:10–21.) 24 To the extent Plaintiffs argue the Assistant Secretary ignored or failed to assign 25 the appropriate weight to the anthropology expert’s speculation, the Court has already 26 rejected similar arguments, and based on the same reasoning, rejects this one as well. 27 See Thompson, 885 F.2d at 555; Modesto Irrigation, 619 F.3d at 1036; Arlington, 516 28 F.3d at 1112. The same reasoning also applies to Plaintiffs’ criticism of the weight the - 31 - 11cv2276 1 Assistant Secretary gave to the two letters written by Frank Alto. See id. The Assistant 2 Secretary adequately explained the value of the letters in the greater context of other 3 “documentary evidence from the time of Marcus Alto’s childhood support[ing] the 4 conclusion that the reason Marcus Alto was not listed on the early San Pasqual 5 censuses was because an explicit, contemporaneous determination had been made that 6 the child being raised by Jose and Maria was not their biological child.” (See AR 7 1154.) This reason alone is sufficient to affirm the Assistant Secretary’s determination 8 because there is clear evidence that rationally and reasonably connects this conclusion 9 to evidence in administrative record. See Arlington, 516 F.3d at 1112. 10 Even if the Court entertains the substance of Plaintiffs’ challenge to the validity 11 of the two letters based on their opinion that the signatures are “substantially different,” 12 the conclusion would remain the same. Comparing the two letters, it is not clear that 13 the signatures differ substantially. (See AR 154, 2707.) More importantly, the contents 14 of the two letters are largely similar, if not identical. (Cf. AR 154, 2707.) It is difficult 15 to read one of the letters (AR 154) because of the degraded quality, but from what the 16 Court can glean, the letters appear to be written by the same person. In particular, both 17 letters end with the seemingly unique valediction “With best wishes to you I remain” 18 followed by the signature. (AR 154, 2707.) The comprehensive index to the 19 administrative record, which Plaintiffs submit as an exhibit to their motion, only 20 confirms as much, stating that the letters are different versions of the same letter. (AR 21 5.) The index does not, as Plaintiffs asserted during oral argument, recognize the 22 signatures as being different, let alone “substantially different.” 23 Consequently, Plaintiffs’ attack based on the respective signatures of the two letters 24 lacks merit. 25 // 26 // 27 // 28 // - 32 - (See id.) 11cv2276 7. 1 Marcus Alto, Sr.’s Biological Father 2 For the final factual challenge, Plaintiffs argue that the Assistant Secretary’s 3 finding that Jose Alto is not Marcus Alto, Sr.’s biological father is arbitrary, capricious, 4 clear error, and an abuse of discretion. (Pls.’ Mot. 18:27–20:3.) Plaintiffs’ challenge 5 is made in two forms. The first applies preclusion principles, contending that a 6 determination regarding Marcus Alto, Sr.’s parentage in the 1995 Decision precludes 7 the one made in the 2011 Decision. (Id. at 18:27–19:14.) And the second is summed 8 up in Plaintiffs’ remark that the Assistant Secretary “did not make a rational connection 9 to the agency record evidence in concluding that some other ‘Jose Alto’ was Marcus 10 Alto Sr.’ biological father.” (Id. at 19:15–20:3.) 11 In the 2011 Decision, the Assistant Secretary found that Marcus Alto, Sr.’s 12 adoptive father is not his biological father. (AR 1153.) The starting point of the 13 Assistant Secretary’s analysis was Marcus Alto, Sr.’s 1907 baptismal certificate, which 14 lists his parents as Jose Alto and Benedita Barrios.15 (AR 1153, 1513-14.) Even 15 though Jose Alto is the name of the father who reared Marcus Alto, Sr., the Assistant 16 Secretary concluded that the Jose Alto listed on the 1907 baptismal record is not the 17 same Jose Alto who reared Marcus Alto, Sr. (AR 1153-54.) To reach that conclusion, 18 the Assistant Secretary wrestled with two plausible theories: (1) “the certificate is 19 referring to a different Jose Alto,” based on evidence in the record that there were “a 20 number of Jose Altos residing in the area at the time of Marcus’s baptism”; and (2) “the 21 ‘father’ named on the certificate is not really the biological father.” (Id.) Relying on 22 early census records, the two 1910 Frank Alto letters, and affidavit testimony where 23 Marcus Alto, Sr. “is said to have admitted he was ‘adopted’ and ‘not Indian,’” the 24 25 26 27 28 15 The 1907 baptismal certificate is for Robert Marco Alto. (AR 1513-14.) The Assistant Secretary addressed the obvious disconnect between the name listed in the baptismal certificate and Marcus Alto, Sr.’s name. (AR 1149.) Upon reviewing certain documents in the record, including a 1925 marriage certificate and a 1925 baptismal certificate for one of Marcus Alto, Sr.’s children, the Assistant Secretary concluded that the evidence taken together supported the conclusion that the 1907 baptismal certificate is for Marcus Alto, Sr. (Id.) This finding is not in dispute. - 33 - 11cv2276 1 Assistant Secretary ultimately concluded that the Jose Alto who reared Marcus Alto, 2 Sr. is not his biological father. (Id.) 3 Turning now to Plaintiffs’ challenge, the Court rejects Plaintiffs’ preclusion 4 argument for the same reasons previously discussed in this order. The policy 5 recognizing a tribe’s right to define its own membership for tribal purposes and the 6 federal policy favoring tribal self-government in addition to the fact that 1995 Decision 7 and the 2011 Decision are based on different regulations led this Court to conclude that 8 strictly applying preclusion principles to these two agency decisions would be 9 inappropriate. See Lasky, 600 F.2d at 768. That same holds true under these 10 circumstances. 11 Plaintiffs’ substantive challenge is understandable and reasonable. The father’s 12 name listed on the 1907 baptismal certificate is Jose Alto, and the father who 13 undisputably reared Marcus Alto, Sr. is also named Jose Alto. Plaintiffs diligently 14 identify evidence throughout the administrative record that supports their proposition 15 that the Jose Alto listed on the 1907 baptismal certificate is the same as the Jose Alto 16 who reared Marcus Alto, Sr. (See Pls.’ Mot. 19:15–20:3.) That evidentiary support 17 includes the 1920 U.S. census listing Marcus Alto, Sr. as the “Indian” son of Jose and 18 Maria Alto (AR 2431); Marcus Alto, Sr.’s marriage certificate stating he is “Indian” 19 and his father is Joseph Alto who is “San Pasqual” (AR 2635); and several other 20 documents demonstrating the same. (Pls.’ Mot. 19:15–20:3.) However, what is 21 important is not the existence of conflicting evidence or evidence supporting an 22 alternative conclusion, but rather the existence of evidence supporting the agency’s 23 reasoning. See Modesto Irrigation, 619 F.3d at 1036; Arlington, 516 F.3d at 1112. 24 Courts “must defer to a reasonable agency action ‘even if the administrative 25 record contains evidence for and against its decision.’” Modesto Irrigation, 619 F.3d 26 at 1036 (quoting Trout Unlimited, 559 F.3d at 958). The Assistant Secretary noted that 27 important evidence was unavailable to determine whether the Jose Alto who reared 28 Marcus Alto, Sr. was his biological father, and even acknowledged “the fact that ‘Jose - 34 - 11cv2276 1 Alto’ is the name given as the child’s father on the baptismal certificate and is also the 2 name of the man who raised the child establishes a strong presumption that the two are 3 the same.” (AR 1153.) 4 Recognizing the incomplete record and his own initial impressions, the Assistant 5 Secretary thoroughly explained how the evidence in the record rebutted the 6 presumption established by the baptismal certificate, with “[t]he most telling evidence 7 in the record rebutting Jose Alto as Marcus Alto’s biological father [being] the early 8 BIA Indian censuses.” (AR 1153-54.) He went on to explain: 14 From 1907 through 1913, during which time Marcus Alto was undisputedly residing with Jose Alto and Maria Duro Alto, these censuses invariably identify Jose, Maria, and Jose’s son, Frank Alto as tribal members and never list Marcus Alto. This fact cannot be written off as oversight; the entire purpose for taking these censuses was to identify and enumerate the people who were members of the San Pasqual Indians. And while there are not many young children included on these censuses, there certainly are some, rebutting any argument that Marcus Alto was too young for admission. 15 (AR 1154.) The Assistant Secretary supported his conclusion further by citing 16 corroborative evidence—the two Frank Alto letters drafted in 1910—that is consistent 17 with census information indicating the nuclear family as including Jose Alto, Maria 18 Duro Alto, and Frank Alto, but not Marcus Alto, Sr. (Id.) Whether or not this Court 19 agrees with the ultimate conclusion, the logic of this explanation—particularly, the 20 weight given to the early Indian censuses as playing a foundational role in establishing 21 the tribal membership roll—is transparent, reasonable, and supported by the 22 administrative record. See Arkansas, 503 U.S. at 112; Bayliss, 427 F.3d at 1214 n.1. 23 The Assistant Secretary also identified “affidavit testimony refuting a biological 9 10 11 12 13 24 connection between Marcus Alto and Jose Alto”: 25 // 26 // 27 // 28 // - 35 - 11cv2276 6 It may well be true that people would refer to Marcus as “adopted” by Maria and Jose even if his biological parents were Jose and Benedita Barrios. But much of the testimony in the record is more specific. Many of the affidavits note that Marcus Alto was non-Indian and the child of a different family, not just a different mother. In particular, the 1994 affidavit of Dr. Shipek sets out unambiguously that “each elder maintained that Maria Duro Alto and her husband Jose Alto had no children but raised one belonging to a nonIndian family.” (AR 1154.) Dr. Shipek’s long history working with and studying the San Pasqual Band 7 is confirmed throughout the administrative record. (See AR 2100-34, 2186-89, 2191- 8 92, 2195-96.) Even Dr. Grabowski’s June 2008 analysis relied heavily on Dr. Shipek’s 9 research. (AR 2058-89.) It comes as no surprise that Dr. Shipek’s thorough research 1 2 3 4 5 10 would be given considerable weight by the Assistant Secretary. 11 Even though the administrative record contains evidence supporting Plaintiffs’ 12 position against the findings in the 2011 Decision, the Assistant Secretary’s conclusion 13 is a reasonable product derived from that evidence in the administrative record. See 14 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668, 687 (9th Cir. 2007). 15 As a result, the Court must defer to the Assistant Secretary’s conclusion despite the 16 existence of evidence against that conclusion. See Modesto Irrigation, 619 F.3d at 17 1036. 18 19 IV. CONCLUSION & ORDER 20 Plaintiffs’ frustration is understandable. The record strongly suggests that the 21 San Pasqual Band has engaged in a relentless battle to disenroll Marcus Alto, Sr. and 22 his descendants from the very beginning. For the most part, that battle appeared to be 23 one that Plaintiffs were winning all the way up to the Regional Director’s November 24 2008 decision. (AR 1267-75.) Then suddenly, in a complete about face, the Assistant 25 Secretary reversed the Regional Director’s decision, found in favor of the Band, and 26 followed the recommendation to disenroll Marcus Alto, Sr.’s descendants. (AR 1137- 27 56.) 28 // - 36 - 11cv2276 1 However, the Court’s role in this situation is “not to substitute its judgment for 2 that of the agency,” but rather to examine whether there is a “rational connection 3 between the facts found and the choice made” by the agency. Bonneville Power, 477 4 F.3d at 687 (quoting State Farm, 463 U.S. at 43) (internal quotation marks omitted). 5 The Assistant Secretary was tasked with the unenviable responsibility to review 6 thousands of pages in the administrative record, some of which are over a hundred 7 years old, and determining the membership status of the now-deceased Marcus Alto, 8 Sr. 9 unmentioned, potentially ignored, or devalued, but as the Court has repeatedly stated, 10 it “must defer to a reasonable agency action ‘even if the administrative record contains 11 evidence for and against its decision.’” Modesto Irrigation, 619 F.3d at 1036 (quoting 12 Trout Unlimited, 559 F.3d at 958). The failure to address the substantial deference 13 afforded to agency decisions—particularly for factual determinations—was a recurring 14 flaw in Plaintiffs’ reasoning. See Arkansas, 503 U.S. at 112; Melkonian, 320 F.3d at 15 1065. Plaintiffs expend considerable effort to identify facts in the record either 16 Under the standard prescribed by 5 U.S.C. § 706(2)(A), which is highly 17 deferential to the agency, Plaintiffs fail to meet their burden to demonstrate that the 18 Assistant Secretary’s decision is in any way “arbitrary, capricious, an abuse or 19 discretion, or otherwise not in accordance with law.” See 5 U.S.C. § 706(2)(A); San 20 Luis & Delta-Mendota, 747 F.3d at 601. Plaintiffs also fail to demonstrate that the 21 Assistant Secretary’s decision is not supported by “substantial evidence.” See Love 22 Korean Church, 549 F.3d at 754; Bear Lake Watch, 324 F.3d at 1076. Upon this 23 Court’s review of the 2011 Decision, the Assistant Secretary articulated a rational 24 relationship between his factual findings and conclusions. See Fence Creek Cattle, 602 25 F.3d at 1132. 26 In light of the foregoing, the Court DENIES Plaintiffs’ motion for summary 27 judgment, and GRANTS Defendants’ cross-motion for summary judgment. 28 Accordingly, this Court affirms the Assistant Secretary’s 2011 Decision “revers[ing] - 37 - 11cv2276 1 the decision made by the Pacific Regional Director on November 26, 2008” and 2 concluding that “the enrollment of the Marcus Alto Sr.[] descendants was based on 3 information subsequently determined to be inaccurate and, as a result, their names must 4 be deleted from the Band’s roll.” (See AR 1156.) 5 IT IS SO ORDERED. 6 7 DATED: September 30, 2015 8 Hon. Cynthia Bashant United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 38 - 11cv2276

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