Home site ruling trims power of grazing permittees

By Bill Donovan
Special to the Times

WINDOW ROCK, April 23, 2009

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A landmark ruling by the Navajo Nation Supreme Court signals that the days when Navajo grazing permittees exercised total control over development in their realms are numbered.

In a case involving a contested home-site lease, the court ruled this week that grazing-permit holders must show how a proposed new home site would harm their use of the land.

If, as is increasingly the case for many permit holders, they are no longer running a livestock operation, they may have trouble blocking approval of new home-site leases in their area.

The case was brought by Jimmy and Martina Begay, who have been trying for more than seven years to build a home near the Round Rock Chapter House.

The Begays first filed for their home-site lease in February 2002, getting the assistance of Stanley Benally, the local grazing official, to identify who held the grazing rights in that area.

Benally identified three families, all of whom the Begays contacted and all of whom agreed to give their written consent.

But a short time later, the Begays learned that another family in the area, Lewis and Lorraine King, asserted that they too have grazing rights to the land in question and did not give their approval.

Despite the Kings' objection, the district grazing committee recommended approval of the Begays' home-site lease.

The matter then went to the tribe's Office of Hearings and Appeals, which held a hearing and issued its decision in September 2006, concluding that the Kings' grazing rights would be affected and that their approval was necessary.

The Begays then appealed to the Supreme Court, which said this week that the OHA decision was "an abuse of discretion or otherwise not in accordance with law."

During the OHA hearing, the Kings failed to present any evidence that their use of the grazing land was directly affected by the Begays building a house there, the high court said.

For that matter, the Kings failed to present any evidence that they were making beneficial use of their grazing permit, the ruling stated.

All OHA did was to look at the fact that the Kings live close to the Begays' chosen spot, the high court said, and from this concluded that their grazing rights would be affected.

"Proximity alone of a homesite to a grazing area is not sufficient to prevent approval of a homesite lease application," the ruling stated.

The Supreme Court also ruled that, given the circumstances, the case would not be remanded to OHA because it would cost additional time and expense for the Begays. Instead the court ordered the home-site lease finalized.

Jay Mason, the Gallup attorney who represented the Begays, said the ruling means that people who assert their grazing rights in order to prevent residential encroachment must show that they would be directly affected by the new development.

To show this, the families will have to be able to prove that they are using their grazing rights.

For now, the ruling is not expected to directly affect other types of development - such as roads, infrastructure and public buildings - that has been stalled by opposition from grazing permittees.

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