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IV. THE APPEAL PROCESS A. Timing The Regional Director may not issue a decision on an appeal until the time for filing answers to the appeal has run as required by 25 C.F.R. § 2.11(c). A decision issued before interested parties have had the opportunity to respond to the appeal is premature and may result in a remand of the decision. Knecht Enterprises, Inc. v. Great Plains Regional Director, 37 IBIA 258 (2002); Ziebach County, South Dakota v. Aberdeen Area Director, Bureau of Indian Affairs, 33 IBIA 239, 244 (1999), Citing, Laducer-Bercier v. Aberdeen Area Director, 32 IBIA 104 (1998); Cheyenne River Sioux Tribe v. Acting Aberdeen Area Director, 28 IBIA 288 (1995); Scott v. Acting Aberdeen Area Director, 25 IBIA 115 (1994); Meeks v. Aberdeen Area Director, 23 IBIA 200 (1993); Jerome v. Acting Aberdeen Area Director, 23 IBIA 137 (1992); Cheyenne River Sioux Tribe v. Aberdeen Area Director, 23 IBIA 103 (1992). A premature decision deprives the interested parties of the rights given to them by the regulations and thus of their right to due process. Knecht Enterprises, Inc., 37 IBIA 258, 262. Appellants must file their appeals within thirty days of receipt of the decision being appealed. Heirs of Jimmie George, Sr. v. Alaska Regional Director, 37 IBIA 146 (2002). Where the BIA has not provided the appellant with a copy of its decision or its decision does not contain appropriate appeal information, the appellant's right to appeal is tolled. Estate of Jimmie George. Appellants must prove that they have timely filed pleadings with the appropriate office. Miami Tribe of Oklahoma v. Muskogee Area Director, 27 IBIA 153 (1995). When the BIA has given correct appeal information in its decision and the appellant fails to timely file its appeal with the proper office the Board will dismiss the appeal as untimely. Jackson County, Kansas v. Acting Southern Plains Regional Director, 39 IBIA 78 (2003); City of Sault Ste. Marie, Michigan v. Acting Minneapolis Area Director, 30 IBIA 218 (1997). B. Appellant's Burden of Proof and the IBIA's Standard of Review
City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001). See also, City of Isabel, South Dakota v. Great Plains Regional Director, 38 IBIA 263, 264 (2002); State of Iowa and Board of Supervisors of Pottawattamie County v. Great Plains Regional Director, 38 IBIA 42 (2002); County of Mille Lacs, Minnesota v. Midwest Regional Director, 37 IBIA 169 (2002); Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14 (2001); Town of Charlestown, Rhode Island Governor, State of Rhode Island and Providence Plantations v. Eastern Area Director, 35 IBIA 93 (2000); Kialegee Tribal Town of Oklahoma v. Muskogee Area Director, 19 IBIA 296, 299 (1991). The appellant does not carry the burden of proof by simple disagreement or by generalized argument with the BIA's decision. It must allege specific facts which show that the BIA has not properly exercised its discretion. City of Timber Lake, South Dakota v. Great Plains Regional Director, 36 IBIA 188 (2001); Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 14, 21 (2001); Ziebach County, South Dakota v. Aberdeen Area Director, 33 IBIA 239, 243 (1999). General and unsupported allegations are insufficient to carry the appellant's burden of proof. Miami Tribe of Oklahoma v. Muskogee Area Director, 27 IBIA 123 (1995). The IBIA will summarily affirm the Regional Director's decision if an appellant fails to provide reasons for its appeal because the appellant must show how the BIA erred in addressing the arguments made before it. Dewey County, South Dakota v. Acting Aberdeen Area Director, 36 IBIA 107 (2001); Thurston County Board of Supervisors v. Aberdeen Area Director, 34 IBIA 249 (2000); Dewey County, South Dakota v. Acting Aberdeen Area Director, 34 IBIA 247 (2000); Oklahoma Petroleum Marketer's Association, and Muskogee County, Oklahoma Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000); Dewey County, South Dakota v. Aberdeen Area Director, 34 IBIA 160 (1999). "An appellant who fails to make any allegation concerning how an Area Director's decision is in error, let alone any argument in support of such an allegation, has not carried this burden of proof." Merceline Warrington, et al. v. Anadarko Area Director, 31 IBIA 312, 313 (1997). The IBIA will not issue instructions to the BIA in how it should consider trust acquisition requests. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 102 (2001). The Board ordinarily declines to consider arguments or evidence presented for the first time in a petition for reconsideration. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 38 IBIA 108 (2002). The Board's scope of review differs according to whether the appellant raises a legal objection to the BIA's decision or challenges his exercise of discretion. State of Kansas v. Acting Southern Plains Regional Director, 36 IBIA 152 (2001). Legal objections which are unsupported by cases, law, or any analysis whatsoever are insufficient to carry the burden of proof. State of Kansas, 36 IBIA 152, 155. The Board has full authority to review any legal challenges that are raised in a trust acquisition case. When challenging a legal determination of the BIA the appellant bears the burden of proving that the Area Director's decision was in error or not supported by substantial evidence. County of Mille Lacs, 37 IBIA 169, 170; Town of Charleston, 35 IBIA 93, 96. "Appellant's speculations do not carry its burden of proof that another use of the lot is actually intended." Lake Montezuma Property Owners Association, Inc. and Yavapai County, Arizona, and Yavapai County Board of Supervisors v. Phoenix Area Director, 34 IBIA 235 (2000). See also, State of Iowa and Board of Supervisors Pottawattamie, Iowa v. Great Plains Regional Director, 38 IBIA 42, 52 (2002). Appellants are not entitled to an evidentiary hearing in appeals of land acquisitions. "There is no requirement in 25 U.S.C. § 465 or 25 C.F.R. Part 151 that an evidentiary hearing be conducted for trust acquisition applications." State of Kansas, 36 IBIA 152, 158. Due process is satisfied by an opportunity to present written evidence to the Bureau of Indian Affairs. Appellants challenging land acquisition decisions have two opportunities to present evidence to the BIA; first, when given notice of the appeal and solicited for comments; and second, when on appeal before the BIA. Further, the BIA may solicit any additional information which it believes will assist in its analysis. If the BIA solicits additional information from any party, it must allow responses by other parties. State of Kansas, 36 IBIA 152, 159. The IBIA will not review tax information on appeal that is different from the information that the appellant presented to the BIA. Rio Arriba, New Mexico, 36 IBIA 14, 23 (2001). The Regional Director's decision is proper if it relies on tax information that is accurate at the time the decision is made. If the appellant presents inaccurate tax information it will not be heard to complain about error based on the inaccuracy. Rio Arriba, Id at 24. If a great deal of time passes between the submission of comments and the issuance of an acquisition decision, the IBIA recommends that the BIA offer State and local governments an opportunity to update their comments. The Board's review authority of trust acquisitions is narrow. The Board exercises only that authority delegated to it by the Secretary of the Interior. The Secretary may, by special delegation or request, remove the limitation on the Board's review authority. Village of Ruidoso, New Mexico v. Albuquerque Area Director, 31 IBIA 143 (1997). The Board declines to issue instructions to the BIA regarding its reconsideration of a trust application on remand. An appellant may make its arguments to the BIA and if necessary file another appeal with the Board if dissatisfied with the BIA's decision. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, 36 IBIA 102 (2001). The Board cannot order the BIA to take land into trust. At most it will remand a decision back to the BIA for further consideration and then only if it finds some legal insufficiency in the decision. Yerington Paiute Tribe v. Acting Western Regional Director, 36 IBIA 261, 264 (2001). The Board will uphold the BIA's requirement that a tribe meet and attempt to negotiate with local governments their tax and use objections to proposed land acquisitions. Yerington Paiute Tribe . In cases where the dispute between the parties would best be resolved by agreement, it may order the parties to try alternative dispute resolution. Rio Arriba, New Mexico, Board of County Commissioners v. Acting Southwest Regional Director, Docket Nos. IBIA 02-25-A and 02-85-A (Order Staying Proceedings, April 25, 2002). [Webmaster's Note: Docket No. IBIA 02-25-A was decided on July 24, 2002, 38 IBIA 18.] While the Board may require the parties to assess alternative dispute resolution, it will not require them to participate in it against their wishes. Rio Arriba. The Board recommended that the parties contact Elena Gonzalez, Director of the Department's Office of Collaborative Action and Dispute Resolution [1801 Pennsylvania Avenue, N.W., Suite 500, Washington, D.C. 20006, (202) 327-5383] to explore and assess alternative dispute resolution. C. Standing to Appeal a Land Acquisition Decision Appellants must show that they have standing to pursue an appeal of the acquisition of land in trust. Marlene Dawson v. Northwest Regional Director, 39 IBIA 213 (2003); Tom Dudek and Bill Haensly v. Acting Assistant Portland Area Director, 23 IBIA 88 (1992). The appellants in Dudek were neighbors who objected to the proposed use of the property. They alleged that the applicant would use the property in a way which violated certain restrictive covenants and county zoning. The Board dismissed their appeal for lack of standing when they failed to file a brief which showed that they had a legal interest in maintaining the restrictions upon the property to be acquired. See also, Edward Lensby v. Midwest Regional Director, 38 IBIA 72 (2002); Frank Riordan and Chuck Tidrington v. Northwest Regional Director, 38 IBIA 258 (2002). The Board has held that the principles of standing discussed in Board decisions apply not only to trust acquisitions appeals to the Board, but also to trust acquisition appeals to BIA Regional Directors from decisions issued by BIA superintendents. Shawano County Concerned Property Taxpayers Association and Scott Seaborne, v. Midwest Regional Director, 38 IBIA 156 (2002). If the Regional Director proposes to make a finding in an appeal based on an appellant's standing or lack of standing, it is highly recommended that the conclusion be reviewed by the appropriate Solicitor's Office. In Friends of East Willits Valley v. Acting Pacific Regional Director, 37 IBIA 213 (2002) the appellants were an unincorporated association of county residents who objected to the proposed use of the proposed trust acquisition. The appellants asserted that they were an interested party in the matter. The Board found that the appellants lacked standing to file the appeal because they failed to meet the test for standing set forth in Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), which requires: 1) an "injury in fact" - an invasion of a legally protected interest which is concrete and particularized -- "actual or imminent, not conjectural" or hypothetical; 2) there must be a causal connection between the injury and the conduct complained of - the injury has to be traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; and 3) it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision. A plaintiff who raises only a general grievance which claims only harm to his and every other citizens interest and which benefits him no more than the public at large does not meet the test for standing. Friends of East Willits Valley, citing Lujan. The Board adopts the traditional standing analysis which is based on the analysis developed in the Federal courts. Friends of East Willits Valley. The Board has recognized that an appellant may have standing based on an environmental interest in the decision, but must still show that it will suffer a concrete injury that affects it in a personal and individual way. Further, there must be a causal relationship between the injury and the conduct complained of. David Evitt, Russell Evitt, Doris Evitt, and James Edmonds v. Acting Pacific Regional Director, 38 IBIA 77, 80 (2002). In the Evitt case, the appellants who were nearby property owners, could not show the causal relationship because the alleged injuries could occur regardless of whether or not the land was placed in trust. The tribe proposed to build some housing which would cause additional burden to roads, cause noise and require additional utilities. However, the tribe could have proceeded with its plans even if the property were not taken into trust and the Board found that because the development could proceed regardless of trust status, the appellant had failed to establish the causal relationship and therefore, failed to show that they had standing to challenge the trust acquisition. The Board will not address the standing of non-governmental appellants if governmental appellants have filed an appeal and the arguments of the governmental and non-governmental appellants are the same. Oklahoma Petroleum Marketer's Association and Muskogee County, Oklahoma, Commissioners v. Muskogee Area Director, 35 IBIA 285 (2000).
A number of "firm" rules may be distilled from the IBIA's cases and they should be reviewed by BIA realty staff and land acquisition decision makers regularly.
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