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Brian L.

Lewis
B. L EWIS L EGAL & E CON . C ONSULTING , LLC
2418 Hwy 66, Box 215
Gallup, New Mexico 87301
Cell. Tel. (405) 777-9539
Telefax (928) 871-4882
E-mail
blewislegal@gmail.com
Attorney for Petitioner

BEFORE THE OFFICE OF HEARINGS AND APPEALS


WINDOW ROCK, NAVAJO NATION, ARIZONA
MYRON MCLAUGHLIN,
Petitioner,

v.

RUSSELL R. BEGAYE,
Respondent.

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No. OHA-EC-002-15
MOTION TO AMEND OR
OTHERWISE VACATE THE
FINAL JUDGMENT AND
FOR NEW TRIAL

Pursuant to Nav. R. Civ. P. Rules 59 and 60, Petitioner moves the Office of
Hearings and Appeals (this Office or the OHA) to amend or otherwise vacate the
Findings of Fact and Conclusions of Law and Final Judgment (the Final Judgment)
issued on November 24, 2014, and to retry the contested matter captioned above. As
grounds, Petitioner states as follows:
1.

On October 9, 2014, the OHA issued a Final Order Disqualifying the

respondent in Tsosie and Whitethorne v. Deschene,1 which the Navajo Nation Supreme
Court upheld in Case Nos. SC-CV-57-14 & SC-CV-58-14, Tsosie and Whitethorne v.
Deschene, Nos. SC-CV-57-14 & SC-CV-58-14 (Nav. Sup. Ct. October 23, 2014).
2.

Thereafter, the Court relied upon the final order and opinion above, and

issued a Permanent Writ of Mandamus against the Navajo Board of Election Supervisors
(the NBOES) and the Navajo Election Administration (the NEA) in Tsosie and

Nos. OHA-EC-005-14 & OHA-EC-007-14 (OHA October 9, 2014).

Whitethorne v. Navajo Board of Election Supervisors, et al., No. SC-CV-68-14, slip op.
at 10 (Nav. Sup. Ct. October 23, 2014).
3.

On October 31, 2014, Petitioner filed his Statement of Grievance along

with an attached addendum and supporting documents to the Grievance (collectively, the
Grievance) with this Office.
4.

On November 3, 2014, the OHA issue a Notice of Sufficiency pursuant to

11 N.N.C. 341(A)(2) and a Notice of Hearing, which was set for November 13, 2014.
5.

On November 13 and 14, 2014, the OHA heard the contested matter

captioned above; and on November 24, 2014, the OHA issued the Final Judgment.
6.

However, the Findings of Fact (the Findings) and Conclusions of Law

(the Conclusions) that comprise the Final Judgment minimize and mischaracterize the
nature and grounds of the Grievance.
7.

For instance, the Conclusions inaccurately assert: [t]he only argument

that Petitioner makes to challenge Respondents loyalty is a federal court action filed
against five suspended or removed [D]irectors. Conclusions at 3.
8.

To begin with, Respondent, Russell Begaye, did not bring any action

much less the federal action at issue hereagainst five suspended or removed
[D]irectors, id., because the five [D]irectors were not validly suspended or removed on
December 21, 2013. The five [D]irectors continue[d] to serve without interruption prior
to and following December 21, 2013. Navajo Nation Oil & Gas Co. v. W.R. Dist. Ct., et
al., No. SC-CV-25-14, slip op. at 16 1 (Nav. Sup. Ct. June 20, 2014). Thus, the Final
Judgment is based upon an incorrect and legally impermissible characterization of the
Grievance filed with this Office in the contested matter captioned above.

9.

Next, Respondents suit was not, as characterized, merely an action

against five individuals; rather, Respondent brought a federal lawsuit directly against and
to eviscerate the Navajo Nation Supreme Courts opinion in Case No. SC-CV-25-14, in
and attempt to eviscerate that Courts ruling.2
10.

More accurately and directly, Petitioner brought the Grievance in the

contested matter captioned above pursuant to, in particular, 11 N.N.C. 8(A)(8) (West,
Westlaw through 2010), for Respondents failure to maintain unswerving loyalty to the
Navajo Nation and . . . [to] be competent and capable of upholding the [O]ath of [O]ffice
. . . id., and for Respondents conduct that ran afoul of his duty to preserve, protect and
defend the laws and government of the Navajo Nation and advance the interests of the
Navajo people, having due regard for the ethical duties and responsibilities of [his] office
. . . . Oath of Office (the Oath).
11.

Furthermore, the Findings and Conclusions are replete with numerous

demonstrably erroneous propositions and assertions that constitute clear errors of fact and
law. E.g. Findings at 49 (finding [t]he five previously removed or suspended
[D]irectors (but now reinstated [D]irectors) hired a lobbying firm to lobby the Secretary
to refuse to recognize the Councils amendment to the [C]harter.); Conclusions at 6
(concluding [t]he five suspended or removed [D]irectors themselves could be said to
have been disloyal when they hired a lobbying firm to try to convince the Secretary of

E.g. Petrs Ex. L at 2 1 (This is an action for declaratory and injunctive relief arising out of a Navajo
Supreme Court decision that violates due process and vitiates a federally issued and approved corporate
charter providing for shareholder governance of a corporation formed under federal law.); Petrs Ex. M at
3 (On June 20, 2014, the Navajo Nation Supreme Court issued a decision that not only refused to give
effect to the removal, but completely stripped Plaintiffs of their delegated authority to oversee operations of
the corporation by making it impossible for them to ever have a quorum. That decision, which guarantees
Defendants positions as directors of the corporation despite a history of mismanagement and misconduct,
violated due process and ignored the language and purpose of the federal statute authorizing the formation
of the tribal corporation.).

Interior to refuse to confirm the actions of the Navajo Nation Council in passing the
amended [C]harter for NNOGC.).
12.

Concerning the Finding at 49 cited above (as an illustrative example),

this Offices Finding is plainly contrary to the Navajo Nation Supreme Courts finding
that: the five [D]irectors were not validly suspended or removed on December 21, 2013.
The five [D]irectors continue to serve without interruption prior to and following
December 21, 2013. Navajo Nation Oil & Gas Co., slip op. at 16 1.
13.

Despite this Office being bound by the precedent of the Navajo Nation

Supreme Court, the Final Judgment sets forth a Finding that is directly contrary to what
the Navajo Nation Supreme Court found in Case No. SC-CV-25-14.
14.

Nor was there ever any credible evidence presented in the contested matter

captioned above that the members of the Navajo Nation Oil & Gas Company
(NNOGC) Board of Directors ever hired any lobbying firm to lobby the Secretary of
the Interior contrary to an action of the 22nd Navajo Nation Council, as is wrongfully
asserted within paragraph 49 of the Findings.
15.

Although Respondent made such an unsubstantiated and unsupported

assertion under direct examination during the hearing of the contested matter captioned
above, Respondent was subsequently discredited during cross-examination, when he
made patently false statements under oath, claimed ignorance of key facts, and otherwise
claimed not to have been able to remember manyif not mostof the key details
relevant to this issue (among others in the contested matter captioned above).

16.

No other evidence was otherwise presented to substantiate or support the

erroneous assertion included as a Finding at 49 (because none could have otherwise


been produced), which makes such a Finding an abuse of discretion that cannot stand.
17.

Accordingly, as illustrated by this example, the Final Judgment contains

clearly erroneous Findings that cannot validly serve as any basis for the Final Judgment
issued in the contested matter captioned above.
18.

Concerning the Conclusion at 6 cited above (also as an illustrative

example), this Conclusion rests on a wholly unsubstantiated and unsupported assertion


that is also otherwise totally irrelevant to the disposition of the contested matter captioned
above.
19.

Paragraph 6 of the Conclusions states: [t]he five suspended or removed

directors themselves could be said to have been disloyal when they hired a lobbying
firm to try to convince the Secretary of Interior to refuse to confirm the actions of the
Navajo Nation Council in passing the amended [C]harter for NNOGC. Id.

This

assertion is completely untrue and unsubstantiated by anything presented in the contested


matter captioned above or otherwise, and has no bearing whatsoever on whether
Respondents conduct violated the requirements of Navajo law.
20.

Whether any of the five Directors has evereven allegedlybeen

disloyal (which none has ever been) has absolutely nothing to do with the issue of
whether Respondent, who is the Presidential candidate at issue here, failed to maintain
unswerving loyalty to the Navajo Nation and . . . be competent and capable of upholding
the [O]ath of [O]ffice . . . 11 N.N.C. 8(A)(8), when he attempted to have a federal
court overrule the Navajo Nation Supreme Courts opinion in Case No. SC-CV-25-14.

21.

Nor does the issue of whether any of the five Directors have evereven

allegedlybeen disloyal (which none has ever been) have anything to do with the issue
of whether Respondent, who is the Presidential candidate at issue here, ran afoul of his
duty to preserve, protect and defend the laws and government of the Navajo Nation and
advance the interests of the Navajo people, having due regard for the ethical duties and
responsibilities of [his or her] office . . . Oath, when he attempted to have a federal court
overrule the Navajo Nation Supreme Courts opinion in Case No. SC-CV-25-14.
22.

These issues are disposed of exclusively and entirely by an analysis of

Respondents conduct at issue in the contested matter captioned above.


23.

Thus, as illustrated above, the Final Judgment relies upon erroneous

Findings, Conclusions and irrelevant allegations that cannot validly serve as its support.
24.

To this point, in the interest of brevity, it suffices to state that no less than

17 of the Findings and 12 of the Conclusions in the Final Judgment are, similarly,
capable of being demonstrated to be clearly erroneous.
25.

Judgment for Respondent here based upon such erroneous Findings,

Conclusions, or combination thereof constitutes a violation of Petitioners rights arising


pursuant to the Navajo Election Code, 11 N.N.C. 1 et seq., the OHAs enabling
legislation, 2 N.N.C. 1051 et seq., and the Navajo Nation Bill of Rights, 1 N.N.C. 1
et seq., e.g., 1 N.N.C. 3 (guaranteeing due process of Navajo Nation law).
26.

The erroneous Findings, Conclusions and abuses of discretion here

provide ample grounds for the OHA to amend its Final Judgment pursuant to Nav. R.
Civ. P. 60(c) or vacate and grant a new trial of the contested matter captioned above
pursuant to Nav. R. Civ. P. 59(a).

27.

Furthermore and notably, after the OHA issued the Final Judgment, it was

disclosed to Petitioner that the hearing officer who presided over the contested matter
captioned above did not meet the requirements of 2 N.N.C. 1053(B)(3). The hearing
officer who presided over the contested matter captioned above is not among the active
members listed within the Bar Directories for any of the Bar Associations of Arizona,
New Mexico or Utah.
28.

Section 1053(B)(3) of Title 2 of the Navajo Nation Code requires that:

[h]earing officers who hear contested cases shall be attorneys licensed to practice law in
the Courts of the Navajo Nation and in the courts of one or more of the three states in
which the Navajo Nation is situated. Id. (emphasis added).
29.

The matter captioned above is a contested case.

30.

The statute requiresit uses the mandatory language shallthat a case

such as this be heard by a hearing officer licensed to practice law in both the Courts of
the Navajo Nation and at least one of the states of Arizona, New Mexico or Utah.
31.

However, pursuant to the information divulged to Petitioner on November

26, 2014, and the Bar Association Directories referenced above, the hearing officer who
presided over the contested matter captioned above is not licensed to practice law in both
the Courts of the Navajo Nation and any of the states of Arizona, New Mexico or Utah.
32.

Accordingly, the hearing officer who presided over the contested matter

above did not meet the qualifications required by Navajo law to hear and decide such a
case, which justifies the OHA amending or otherwise vacating the Final Judgment and
retrying the contested matter captioned above.

33.

Petitioner did not have knowledge or reason to believe that the hearing

officer who presided over the contested matter captioned above did not meet the
requirements of 2 N.N.C. 1053(B)(3), prior to Wednesday, November 26, 2014, and
such information is a key fact previously unrevealed and unknown by Petitioner that is
relevant to the proper hearing and deciding of the contested matter captioned above.
34.

Unlike in the opinion of In the Matter of the Navajo Nation Election

Administrations Determination of Insufficiency, No. SC-CV-24-09, slip op. at 8-9 (Nav.


Sup. Ct. June 22, 2009), in which the hearing officer who presided over a contested case
without having been licensed to practice law in any of the states of Arizona, New Mexico
or Utah, yet did not run afoul of 2 N.N.C. 1053(B), here, the hearing officer who
presided over the contested matter captioned above without meeting the requirements 2
N.N.C. 1053(B)(3) is not a member of the Judicial Branch of the Navajo Nation.
Instead, the hearing officer who presided over the contested matter captioned above is an
employee, personnel or staff of the OHA. See 2 N.N.C. 1053(A) (providing all of the
rights of a permanent Executive Branch employee . . . .).
35.

Accordingly, because the hearing officer who presided over the contested

matter captioned above did not meet the requirements of 2 N.N.C. 1053(B)(3), the Final
Judgment constitutes a violation of Petitioners rights arising from Navajo law, e.g., the
OHAs enabling legislation, 2 N.N.C. 1051 et seq., the Navajo Election Code, 11
N.N.C. 1 et seq., and the Navajo Bill of Rights, 1 N.N.C. 1 et seq.
36.

This makes it most appropriate for the OHA to amend or otherwise vacate

the Final Judgment and retry the contested matter captioned above.

37.

Accordingly, Petitioner moves this Office to amend or otherwise vacate

the Final Judgment and to retry the contested matter captioned above pursuant to Rules
59 and 60 of the Navajo Rules of Civil Procedure.
CONCLUSION
For the reasons set forth herein, this Offices amending or otherwise vacating the
Final Judgment issued on November 24, 2014, and retrying the contested matter
captioned above is appropriate.
Respectfully submitted this 2nd day of December, 2014.
B. LEWIS LEGAL & ECON. CONSULTING, LLC
__________________________________
Brian L. Lewis
2418 Hwy 66, Box 215
Gallup, New Mexico 87301
Cell. Tel. (405) 777-9539
Telefax (928) 871-4882
E-mail
blewislegal@gmail.com
Attorney for Petitioner
CERTIFICATE OF SERVICE
On this 2nd day of December 2014, a true and correct copy of the foregoing pleading was
sent via United States Postal Service certified mail and e-mail to:
David R. Jordan
David R. Jordan Law Office
1995 State Road 602
Post Office Box 840
Gallup, New Mexico 87305
E-Mail: david@jordanlegal.com
Counsel for Respondent
With a courtesy copies delivered to:
Levon Henry, Chief Legislative Counsel
Office of Legislative Counsel; and
Paul Spruhan, Assistant Attorney General
Navajo Nation Department of Justice
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