Walker River Paiute Tribe v. U.S. Dep't of Hous. & Urban Dev.
| Decision Date | 15 December 2014 |
| Docket Number | No. 3:08–CV–0627–LRH–VPC.,3:08–CV–0627–LRH–VPC. |
| Citation | 68 F.Supp.3d 1202 |
| Parties | WALKER RIVER PAIUTE TRIBE, Plaintiff, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT ; et al., Defendants. |
| Court | U.S. District Court — District of Nevada |
Wes Williams, Law Offices of Wes Williams Jr., Schurz, NV, for Plaintiff.
Holly A. Vance, U.S. Attorney's Office, Reno, NV, for Defendants.
Before the court is plaintiff Walker River Paiute Tribe's (“WRPT”) motion for summary judgment. Doc. # 18.1 Defendants the United States Department of Housing and Urban Development (“HUD”); Shaun Donovan, the Secretary of Housing and Urban Development; and Deborah Hernandez, General Deputy Assistant for Public and Indian Housing (collectively “defendants”) filed an opposition (Doc. # 21) and cross-motion for summary judgment (Doc. # 22).
Plaintiff WRPT is a federally recognized Indian tribe located in Nevada. WRPT filed the underlying declaratory and injunctive relief action alleging that defendants improperly offset the amount of federal funding WRPT received in fiscal year 2009 in violation of the Native American Housing Assistance and Self–Determination Act (“NAHASDA”), 25 U.S.C. § 4101 et seq.
This action concerns HUD's administration and implementation of NAHASDA, a federal statute enacted to provide funding to Indian tribes in order to “help [ ] tribes and their members ... improve their housing conditions and socioeconomic status.” 25 U.S.C. § 4101(5).
Prior to the enactment of NAHASDA, Indian housing assistance was administered under the United States Housing Act of 1937 (“1937 Housing Act”), 42 U.S.C. § 1437 et seq. That act created several programs designed to help alleviate tribal housing needs. Some programs helped Indian families afford low-income rental options, while other programs allowed families to purchase housing through lease-to-own or lease-purchase agreements. One lease-to-own program in particular, the Mutual Help Program, allowed an eligible Indian family to contribute land, materials, equipment, or work to the construction of a home in return for favorable lease terms pursuant to a Mutual Help and Occupancy Agreement (“MHOA”) between the Indian family and the tribe. The MHOAs entered into under the 1937 Housing Act typically provided an option for the Indian family to purchase the home at the end of a twenty-five year lease period. See 24 C.F.R. Part 905, Subpart E (1995).
HUD, as the administering agency under the 1937 Housing Act, provided yearly financial assistance to Indian tribes according to the terms of Annual Contribution Contracts (“ACCs”). Through these ACCs, each tribe was awarded a certain amount of yearly funding to cover the costs of tribal housing projects. 42 U.S.C. § 1437c(a)(2) (1996).
In 1996, Congress passed NAHASDA and terminated all housing assistance programs created under the 1937 Housing Act. But Congress, recognizing its continuing obligation to provide tribes with financial assistance for the continued operation and maintenance of housing constructed under the 1937 Housing Act, enacted a new system of financial assistance. See 25 U.S.C. §§ 4112(c)(4)(D) and 4133(b). Congress' new funding assistance program was the creation of annual Indian Housing Block Grants (“IHBG”).2 25 U.S.C. § 4111. These grants are distributed directly to Indian tribes in accordance with housing plans prepared by the tribes and approved by HUD.3 25 U.S.C. § 4112. Pursuant to NAHASDA, all state and federally-recognized Indian tribes are eligible for IHBG funding. 24 C.F.R. § 1000.202 ; 25 U.S.C. § 4103(12). Congress' express intent in enacting the IHBG program was to “[recognize] the right of Indian self-determination and tribal self-governance by making such assistance available directly to the Indian tribes or tribally designated entities....” 25 U.S.C. § 4101(7). As under the 1937 Housing Act, HUD is the administering agency under NAHASDA.
To determine the amount of annual IHBG funding each Indian tribe is entitled to receive, NAHASDA delegated to HUD the creation of a funding allocation formula. 25 U.S.C. § 4152(a). However, while Congress specifically delegated the creation of the formula to HUD, Congress also circumscribed HUD's discretion by mandating the formula be “based on factors that reflect the need of the Indian tribes ... for assistance for affordable housing activities.” 25 U.S.C. § 4152(b). Congress further mandated that the formula, along with any other necessary funding and enforcement regulations, be crafted through a negotiated rule-making process involving interested Indian tribes. 25 U.S.C. § 4116.
The negotiated rule-making committee for creation of the allocation formula included fifty-eight members; forty-eight of these members represented “geographically diverse small, medium and large Indian tribes.” 62 Fed.Reg. 35,719. The rule-making committee crafted and submitted a number of factors for HUD's consideration for the final formula. HUD then crafted the allocation formula codified at 24 C.F.R. §§ 1000.304 –1000.340. The final IHBG funding allocation formula includes only two components: (1) Formula Current Assisted Housing Stock (“FCAS”) for each recipient tribe; and (2) a tribe's individual need. 24 C.F.R. § 1000.310.
In accordance with this funding formula, to determine the amount of IHBG funding a Tribal Designated Housing Entity (“TDHE”)4 receives in a particular fiscal year, HUD first calculates the tribe's current assisted housing stock (more commonly understood as the total number of assistance-based dwelling units owned or operated by the tribe) and multiplies that number by the national per unit subsidy. 24 C.F.R. § 1000.316. HUD then immediately earmarks funds from the IHBG appropriation budget to fund the calculated units. After calculating each tribe's FCAS, HUD subsequently measures the current “need” of all participating tribes by applying certain present weighted criteria to each tribe in order to equitably distribute any remaining IHBG appropriations. See 24 C.F.R. § 1000.324 (). The tribe's IHBG is the resulting sum of both the tribe's FCAS calculation and determined “need.”
Each year, the FCAS calculation for each Indian tribe begins with the total number of assistance-based dwelling units owned or operated by the tribe as of September 30, 1997. 24 C.F.R. § 1000.312. The dwelling units considered by HUD include all Section 8 units, low-rent units, and Mutual Help Program and Turnkey III units constructed under the 1937 Housing Act. Id. From this starting point, HUD then eliminates certain housing units. For example, over the years, some rent-to-own units are conveyed from a TDHE's inventory due to the terms of MHOAs between the tribe and Indian families occupying the units. Reflecting these transfers of ownership, HUD promulgated a regulation in 1998 which allows for a downward adjustment to each tribe's FCAS calculation once a unit has been conveyed to an Indian family. See 24 C.F.R. § 1000.318.5
Section 1000.318 specifically provides that a dwelling unit ceases to be counted for a tribe's FCAS calculation once a tribe “no longer has the legal right to own, operate, or maintain the unit ... whether such right is lost by conveyance, demolition, or otherwise.” 24 C.F.R. § 1000.318(a). In determining the number of disqualified units, HUD relies on information provided by each Indian tribe on annual response forms.
During the years immediately following the promulgation of Section 1000.318, HUD calculated each tribe's FCAS to include all assistance-based dwelling units owned or operated by the tribe as of September 30, 1997, and only removed units from a tribe's annual calculation if HUD received notice from the tribe that a unit had been either demolished or conveyed to an Indian family. See, e.g., Audit Report, Office of Inspector General (2001), p. 275–279.
In 2001, the Office of Inspector General (“OIG”) conducted a wide-scale audit of HUD's implementation of NAHASDA, with a focus on HUD's implementation of the IHBG program. In its report, OIG criticized HUD for failing to enforce strict compliance with Section 1000.318 as written. OIG asserted that IHBG funds had not been properly allocated in several previous fiscal years because the tribe's FCAS calculations included housing units that no longer qualified as current assisted stock pursuant to Section 1000.318. OIG opined that because most housing programs under the 1937 Housing Act had standardized twenty-five year lease periods, “one can reasonably expect that some of these units should be paid-off, and the [TDHEs] would no longer have the legal right to own, operate, or maintain these units.” Audit Report, Office of Inspector General (2001), p. 279. Rather than only disqualifying those units for which HUD had received confirmation of conveyance by the tribe, OIG opined that all dwelling units that have reached the end of their twenty-five year lease period, whether or not they were still owned by a tribe, should be disqualified and removed from a tribe's FCAS calculation pursuant to Section 1000.318.
At the conclusion of the audit, OIG further recommended that HUD regularly audit all participating tribes and recover funds from any tribe that had inflated FCAS calculations for previous years. In the years following the OIG audit report, HUD implemented these recommendations, including the strict interpretation of Section 1000.318 for subsequent FCAS calculations.
On October 14, 2008, NAHASDA was amended by the 2008 NAHASDA Reauthorization Act (“2008 Reauthorization Act”), PL 110–411, 122 Stat. 4319 (2008). Under the 2008 amendment, NAHASDA's formula allocation provision was amended to incorporate some of the language from 24 C.F.R. § 1000.318. See 25 U.S.C. § 4152 (2008). Now, as part of the amended allocation formula,...
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