Here: Fort Peck Cert Petition.
Questions presented:
Under the Native American Housing Assistance and Self Determination Act of 1996 (NAHASDA), Congress directed the Secretary of Housing and Urban Development (HUD) to establish a formula to allocate annual block grants to Indian Tribes for affordable housing activities. Congress directed that the formula be based on factors which reflect housing need, including three explicit factors. The first factor is the number of dwelling units owned or operated by the Tribes under the 1937 Housing Act at the time the regulations became effective. 25 U.S.C. § 4152 (b) (1). The Secretary promulgated a regulation, 24 C.F.R. § 1000.318, that removes some of these dwelling units from the formula. After the regulation was invalidated by the district court as violative of the statute, Congress amended the statute to incorporate, with significant exceptions, part of the regulation into the statute. The questions presented are:
(1) When Congress mandates a definitive number of units to be considered as a factor in an annual funding formula, may the Secretary lawfully impose a regulation that fails to include all of the units in the formula?
(2) The Tenth Circuit declined to address the effect of the 2008 amendment on the regulation’s validity. Does the amendment of the statute following the district court’s decision support the district court’s ruling that the regulation was invalid prior to the amendment?
(3) Does the Tenth Circuit’s decision that the Secretary may exclude dwelling units from the formula conflict with the decisions of other circuits holding that statutory factors which Congress mandates for consideration by an Agency must be considered in full?
Lower court materials here.
Turtle Talk 