§ 4.320 Who may appeal; scope of review.

A party in interest shall have a right of appeal to the Board of Indian Appeals from an order of an administrative law judge on a petition for rehearing, a petition for reopening, or regarding tribal interests in a deceased Indian's trust estate. An appeal shall be limited to those issues which were before the administrative law judge upon the petition for rehearing, reopening or regarding tribal interests. However, the Board shall not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.

(a) Notice of Appeal. Within 60 days after receipt of decision, an appellant shall file a written notice of appeal signed by appellant, appellant's attorney, or other qualified representative as provided in 43 CFR 1.3, with the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203. A statement of the errors of fact and law upon which the appeal is based shall be included in either the notice of appeal or in any brief filed. The notice of appeal shall include the names of parties served.

(b) Service of copies of notice of appeal. The appellant shall personally deliver or forward by United States mail to the Board of Indian Appeals the original notice of appeal. A copy shall be served upon the administrative law judge whose decision is appealed as well as all interested parties.

or

(c) Action by administrative law judge; record inspection. The administrative law judge, upon receiving a copy of the notice of appeal, shall notify the Superintendent concerned to return the duplicate record filed under §§ 4.236(b) and 4.241(d), under § 4.242(f), to the title plant designated under § 4.236(b). The duplicate record shall be conformed to the original by the title plant and shall thereafter be available for inspection either at the title plant or at the office of the Superintendent.

§ 4.321 Notice of transmittal of record on appeal.

The original record on appeal shall be forwarded by the title plant to the Board by certified mail. Any objection to the record as constituted shall be filed with the Board within 15 days of the date of docketing of the appeal by the Board.

§ 4.322 Docketing.

The appeal shall be docketed by the Board upon receipt of the administrative record from the title plant. All interested parties as shown by the record on appeal shall be notified of the docketing. The docketing notice shall specify the time within which briefs may be filed and shall cite the procedural regulations governing the appeal.

§ 4.323 Disposition of the record.

Subsequent to a decision of the Board, other than remands, the record filed with the Board and all documents added during the appeal proceedings, including the Board's decision, shall be forwarded by the Board to the title plant designated under § 4.236(b). Upon receipt of the record by the title plant, the duplicate record required by § 4.320(c) shall be conformed to the original and forwarded to the Superintendent concerned.

APPEALS TO THE BOARD OF INDIAN APPEALS FROM ADMINISTRATIVE ACTIONS OF OFFICIALS OF THE BUREAU OF INDIAN AFFAIRS: ADMINISTRATIVE REVIEW IN OTHER INDIAN MATTERS NOT RELATING TO PROBATE PROCEEDINGS

AUTHORITY: Secs. 1, 2, 36 Stat. 855, as amended, sec. 1, 38 Stat. 586, 42 Stat. 1185, as amended, secs. 1, 2, 56 Stat. 1021, 1022; R.S. 463, 465; 5 U.S.C. 301; 25 U.S.C. secs. 2, 9, 372, 373, 374, 373a, 373b.

SOURCE: Sections 4.330-4.340 appear at 46 FR 7337, Jan. 23, 1981, unless otherwise noted.

§ 4.330 Scope.

(a) The definitions set forth in § 2.1 of Title 25 of the Code of Federal Regulations, apply also to these special rules. These regulations apply to the practice and procedure for (1)

appeal to the Board of Indian Appeals from administrative actions or decisions of officials of the Bureau of Indian Affairs issued under regulations in Chapter 1 of 25 CFR, in cases involving determinations, findings and orders protested as a violation of a right or privilege of the appellant; and (2) administrative review by the Board of Indian Appeals of other matters pertaining to Indians which are referred to it for exercise of review authority of the Secretary, the Assistant Secretary for Indian Affairs, or the Commissioner of Indian Affairs.

(b) Except as otherwise permitted by the Secretary, the Assistant Secretary for Indian Affairs or the Commissioner of Indian Affairs by special delegation or request, the Board shall not adjudicate: (1) Tribal enrollment disputes; (2) matters decided by the Bureau of Indian Affairs through exercise of its discretionary authority; (3) appeals from decisions of the Commissioner of Indian Affairs pertaining to final recommendations or actions by officers of the Conservation Division, Geological Survey, unless the Commissioner's decision is based on an interpretation of Federal Indian law (Commissioner's decisions not so based which arise from determinations of the Geological Survey are appealable to the Board of Land Appeals in accordance with 43 CFR 4.410); or (4) decisions of the Office of Indian Education Programs for which Secretarial review is otherwise provided.

§ 4.331 Who may appeal.

Any interested party affected by a final administrative action or decision of an official of the Bureau of Indian Affairs issued under regulations in Title 25 of the Code of Federal Regulations in a case involving a determination, finding, or order protested as a violation of a right or privilege of the appellant may appeal to the Board of Indian Appeals, except (a) to the extent that decisions of officials under the supervision of the Commissioner of the Bureau of Indian Affairs must first be appealed to the Commissioner under provisions in 25 CFR Part 2; (b) where such decision has been approved by the Secretary prior to pro

mulgation; and (c) where otherwise provided by law or regulation.

§ 4.332

Appeal to the Board; how taken; mandatory time for filing; preparation assistance; requirement for bond.

(a) A notice of appeal shall be in writing, signed by the appellant or by his attorney of record or other qualified representative as provided by 43 CFR 4.1, and filed with the Board of Indian Appeals, Office of Hearings and Appeals, U.S. Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203, within 60 days after receipt by the appellant of the decision from which appeal is taken. A notice of appeal not timely filed shall be dismissed for lack of jurisdiction. A notice of appeal shall include:

(1) A full identification of the case; (2) A statement of the reasons for the appeal and of the relief sought;

(3) Any arguments the appellant wishes to make; and

(4) The names and addresses of all additional interested parties, Indian tribes, tribal corporations, or groups having rights or privileges which may be affected by a change in the decision, whether or not they participated as interested parties in the earlier proceedings.

(b) An appeal properly and timely filed with the Commissioner pursuant to 25 CFR 2.10 and referred to the Board pursuant to 25 CFR 2.19 without a decision may be docketed by the Board as timely filed.

(c) When the appellant is an Indian or Indian tribe, the officer who issued the decision appealed shall upon request of the appellant, render such assistance as is appropriate in the preparation of the appeal.

(d) At any time during the pendency of an appeal, an appropriate bond may be required to protect the interest of any Indian, Indian tribe, or other parties involved.

§ 4.333 Service of notice of appeal.

(a) On or before the date of filing of the notice of appeal the appellant shall serve a copy of the notice upon each interested party named, and upon the official of the Bureau of Indian Affairs from whose decision

the appeal is taken. If the appellant is an Indian or an Indian tribe not represented by counsel, the appellant may request the official of the Bureau whose decision is appealed to assist in service of copies of the notice of appeal and any supporting documents.

(b) The notice of appeal will be considered to have been served upon the date of personal service or mailing.

§ 4.334 Extensions of time.

Requests for extensions of time to file documents may be granted upon a showing of good cause, except for the time fixed for filing a notice of appeal, as specified in § 4.332, which may not be extended.

§ 4.335 Preparation and transmittal of record by official of the Bureau of Indian Affairs.

(a) Upon receipt of a copy of a notice of appeal or upon notice from the Board, the official of the Bureau of Indian Affairs whose decision is appealed shall assemble and transmit the record to the Board. The record on appeal shall include, without limitation, copies of transcripts of testimony taken, all original documents, petitions, or applications by which the proceeding was initiated and all supplemental documents which set forth claims of interested parties, as well as documents upon which all previous decisions were based.

(b) The administrative record shall include a Table of Contents noting, as a minimum, inclusion of the following: (1) The decision appealed from; (2) the notice of appeal or copy thereof; and (3) certification that the record contains all information and documents utilized by the deciding official in rendering the decision appealed.

§ 4.336 Docketing.

An appeal shall be docketed by the Board upon receipt of the administrative record. All interested parties as shown by the record on appeal shall be notified of the docketing. The docketing notice shall specify the time within which briefs shall be filed and cite the procedural regulations governing the appeal.

§4.337 Action by the Board.

(a) The Board may make a final decision, or where the record indicates a need for further inquiry to resolve a genuine issue of material fact, the Board may require a hearing. All hearings shall be conducted by an administrative law judge of the Office of Hearings and Appeals. The Board may, in its discretion, grant oral argument before the Board.

(b) Where the Board finds that one or more issues involved in an appeal or a matter referred to it require the exercise of discretionary authority of the Commissioner, the Board shall refer those issues to the Commissioner for resolution.

§ 4.338 Submission by administrative law judge of proposed findings, conclusions and recommended decision.

(a) When an evidentiary hearing pursuant to § 4.337(a) is concluded, the administrative law judge shall make proposed findings of fact and conclusions of law, in a recommended decision, stating the reasons for such recommendations. A copy of the recommended decision shall be sent by certified mail, return receipt requested, to each party to the proceeding, to the Bureau official involved, and to the Board. Simultaneously, the entire record of the proceedings including the transcript of the hearing before the administrative law judge shall be forwarded to the Board.

(b) The administrative law judge shall advise the parties at the conclusion of the recommended decision of their right to file exceptions or other comments regarding the recommended decision with the Board in accordance with § 4.339.

§ 4.339 Exceptions or comments regarding recommended decision by administrative law judge.

Within 30 days after receipt of the recommended decision of the administrative law judge, any party may file exceptions to the decision with the Board.

§ 4.340 Decision by the Board.

The Board shall issue a decision which shall set forth findings of fact

As used in this subpart:

(a) "Secretary" means the Secretary of the Interior or his authorized representatives.

(b) "Bureau" means Bureau of Land Management.

(c) "Board" means the Board of Land Appeals in the Office of Hearings and Appeals, Office of the Secretary. The terms "office" or "officer" as used in this subpart include "Board" where the context requires.

(d) "Administrative law judge❞ means an administrative law judge in the Office of Hearings and Appeals, Office of the Secretary, appointed under section 3105 of Title 5 of the United States Code.

days after it was required to be filed and it is determined that the document was transmitted or probably transmitted to the office in which the filing is required before the end of the period in which it was required to be filed. Determinations under this paragraph shall be made by the officer before whom is pending the appeal in connection with which the document is required to be filed.

of

(b) Transferees and encumbrancers. Transferees and encumbrancers land the title to which is claimed or is in the process of acquisition under any public land law shall, upon filing notice of the transfer or encumbrance in the proper land office, become entitled to receive and be given the same notice of any appeal, or other proceeding thereafter initiated affecting such interest which is required to be given to a party to the proceeding. Every such notice of a transfer or encumbrance will be noted upon the records of the land office. Thereafter such transferee or encumbrancer must be made a party to any proceedings thereafter initiated adverse to the entry.

(c) Service of documents. (1) Wherever the regulations in this subpart require that a copy of a document be served upon a person, service may be made by delivering the copy personally to him or by sending the document by registered or certified mail, return receipt requested, to his address of record in the Bureau.

(2) In any case service may be proved by an acknowledgment of service signed by the person to be served. Personal service may be proved by a written statement of the person who made such service. Service by registered or certified mail may be proved by a post-office return receipt showing that the document was delivered at the person's record address or showing that the document could not be delivered to such person at his record address because he had moved therefrom without leaving a forwarding address or because delivery was refused at that address or because no such address exists. Proof of service of a copy of a document should be filed in the same office in which the document is filed except that proof of service of a notice

of appeal should be filed in the office of the officer to whom the appeal is made, if the proof of service is filed later than the notice of appeal.

(3) A document will be considered to have been served at the time of personal service, of delivery of a registered or certified letter, or of the return by post office of an undelivered registered or certified letter.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]

§ 4.402 Summary dismissal.

An appeal to the Board will be subject to summary dismissal by the Board for any of the following causes:

(a) If a statement of the reasons for the appeal is not included in the notice of appeal and is not filed within the time required;

(b) If the notice of appeal is not served upon adverse parties within the time required; and

(c) If the statement of reasons, if not contained in the notice of appeal, is not served upon adverse parties within the time required.

APPEALS TO THE BOARD OF LAND APPEALS

§ 4.410 Who may appeal.

Except as otherwise provided in Group 2400 of Chapter II of this title, except to the extent that decisions of Bureau of Land Management officers must first be appealed to an administrative law judge under § 4.470 and Part 4100 of this title, and except where a decision has been approved by the Secretary, any party to a case who is adversely affected by a decision of an officer of the Bureau of Land Management or of an administrtive law judge, shall have a right to appeal to the Board.

[36 FR 15117, Aug. 13, 1971, as amended at 44 FR 41790, July 18, 1979]

§ 4.411 Appeal; how taken, mandatory time limit.

(a) A person who wishes to appeal to the Board must file in the office of the officer who made the decision (not the Board) a notice that he wishes to appeal. The notice of appeal must give the serial number or other identification of the case and must be transmit

ted in time to be filed in the office, where it is required to be filed within 30 days after the person taking the appeal is served with the decision from which he is appealing. The notice of appeal may include a statement of the reasons for the appeal and any arguments the appellant wishes to make.

(b) No extension of time will be granted for filing the notice of appeal. If a notice of appeal is filed after the grace period provided in § 4.401(a), the notice of appeal will not be considered and the case will be closed by the officer from whose decision the appeal is taken. If the notice of appeal is filed during the grace period provided in § 4.401(a) and the delay in filing is not waived, as provided in that section, the notice of appeal will not be considered and the appeal will be dismissed by the Board.

[36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117, Aug. 13, 1971]

§ 4.412 Statement of reasons, written arguments, briefs.

If the notice of appeal did not include a statement of the reasons for the appeal, such a statement must be filed with the Board (address: Board of Land Appeals, Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, VA 22203) within 30 days after the notice of appeal was filed. Failure to file the statement of reasons within the time required will subject the appeal to summary dismissal as provided in § 4.402, unless the delay in filing is waived as provided in § 4.401(a). In any case the appellant will be permitted to file with the Board additional statements of reasons and written arguments or briefs within the 30-day period after he filed the notice of appeal.

§ 4.413 Service of notice of appeal and of other documents.

The appellant must serve a copy of the notice of appeal and of any statement of reasons, written arguments, or briefs on the Regional or Field Solicitor having jurisdiction over the State in which the appeal arose, or upon the Associate Solicitor, Division of Energy and Resources, when the appeals are taken from decisions of the Director,