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Tribe v. United States Department of Housing

United States District Court, D. Nevada

December 15, 2014


Page 1203

For Walker River Paiute Tribe, Plaintiff: Wes Williams, LEAD ATTORNEY, Law Offices of Wes Williams Jr., Schurz, NV.

For United States Departmet of Housing and Urban Development, Defendant: Holly A. Vance, LEAD ATTORNEY, Reno, NV.

For Shawn Donovan, Sandra B. Henriquez, Added per [7] Amended Complaint, Defendants: Holly A. Vance, LEAD ATTORNEY, Reno, NV.

Page 1204



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).

I. Facts and Procedural History

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.

Page 1205


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.

B. Allocation Formula

To determine the amount of annual IHBG funding each Indian tribe is entitled to receive, NAHASDA delegated to HUD

Page 1206

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 (identifying seven (7) weighted factors as part of the need component). The tribe's IHBG is the resulting sum of both the tribe's FCAS calculation and determined " need."

C. FCAS Calculation

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 ...

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