(b) If there are no issues of fact requiring determination, the administrative judge will enter a preliminary determination of heirs based upon inheritance laws in accordance with the Act. Such preliminary determination will be entered without a hearing, and, when possible and based upon the data furnished and/or information supplementary thereto, shall include the names, birth dates, relationships to the decedent, and shares of the heirs, or the fact that the decedent died without heirs. (1) Upon issuing a preliminary determination, the administrative judge shall issue a notice of such action and shall mail a copy of said notice, together with a copy of the preliminary determination, to each party in interest allowing forty (40) days in which to show cause in writing why the determination should not become final. The administrative judge shall cause a certificate to be made as to the date and manner of such mailing. (2) The Project Director shall also cause, within seven (7) days of receipt of such notice, the notice of the preliminary determination to be posted in the following sites: The White Earth Band, Box 418, White Earth, Minnesota 56591 The Minnesota Chippewa Tribe, Box 217, Cass Lake, Minnesota 56633 Minnesota Agency, Bureau of Indian Affairs, Room 418, Federal Building, 522 Minnesota Avenue, NW, Bemidji, Minnesota 56601-3062 and in such other sites as may be deemed appropriate by the Project Director. Such other sites may include, but not be limited to: Elbow Lake Community Center, R.R. 12, Waubun, Minnesota 56589 Postmaster, Callaway, Minnesota 56521 Community Center, Route 2, Bagley, Minnesota 56621 Community Center, Star Route, Mahnomen, Postmaster, Mahnomen, Minnesota 56557 Postmaster, Ogema, Minnesota 56569 Postmaster, White Earth, Minnesota 56591 White Earth IHS, White Earth, Minnesota 56591 Postmaster, Ponsford, Minnesota 56575 American Indian Center, 1113 West Broadway, Minneapolis, Minnesota 55411 (3) If no written request for hearing or written objection is received in the office of the administrative judge within the forty (40) days of issuance of the notice, the administrative judge shall issue a final order declaring the preliminary determination to be final thirty (30) days from the date on which the final order is mailed to each party in interest. (c) When the administrative judge determines either before or after issuance of a preliminary determination that there are issues which require resolution, or when a party objects to the preliminary determination and/or requests a hearing, the administrative judge may either resolve the issues informally or schedule and conduct a prehearing conference and/or a hearing. Any prehearing conference, hearing, or rehearing, conducted by the administrative judge shall be governed insofar as practicable by the regulations applicable to other hearings under this part and the general rules in subpart B of this part. After receipt of the testimony and/or evidence, if any, the administrative judge shall enter a final order determining the heirs of the decedent, which shall become final thirty (30) days from the date on which the final order is mailed to each party in interest. (a) The administrative judge shall lodge the original record with the Project Director. (b) The record shall contain, where applicable, the following materials: (1) A copy of the posted public notice of preliminary determination and/or hearing showing the posting certifications, the administrative judge's certificate of mailing, the posting certificates, and the Project Director's certificate of mailing. (2) A copy of each notice served on parties in interest, with proof of mailing; (3) The record of evidence received, including any transcript made of testi mony; (4) Data for heirship finding and family history, and data supplementary thereto; (5) The final order determining the heirs of the decedent and the administrative judge's notices thereof; and (6) Any other material or documents deemed relevant by the administrative judge. §4.354 Reconsideration or rehearing. (a) Any party aggrieved by the final order of the administrative judge may, within thirty (30) days after the date of mailing such decision, file with the administrative judge a written petition for reconsideration and/or rehearing. Such petition must be under oath and must state specifically and concisely the grounds upon which it is based. If it is based upon newly discovered evidence, it shall be accompanied by affidavits of witnesses stating fully what the new evidence or testimony is to be. It shall also state justifiable reasons for the prior failure to discover and present the evidence. (b) If proper grounds are not shown, or if the petition is not filed within the time prescribed in paragraph (a) of this section, the administrative judge shall issue an order denying the petition and shall set forth therein the reasons therefor. The administrative judge shall serve copies of such order on all parties in interest. (c) If the petition appears to show merit, or if the administrative judge becomes aware of sufficient additional evidence to justify correction of error even without the filing of a petition, or upon remand from the Board following an appeal resulting in vacating the final order, the administrative judge shall cause copies of the petition, supporting papers, and other data, or in the event of no petition an order to show cause or decision of the Board vacating the final order in appropriate cases, to be served on all parties in interest. The parties in interest will be allowed a reasonable, specified time within which to submit answers legal briefs in opposition to the petition or order to show cause or Board decision. The administrative judge shall then reconsider, with or without hearing, the issues of fact and shall issue a final order upon reconsideration, affirming, modifying, or vacating the original final order and making such further orders as are deemed warranted. The final order upon reconsideration shall be served on all parties in interest and shall become final thirty (30) days from the date on which it is mailed. or (d) Successive petitions for reconsideration and/or rehearing shall not be permitted. Nothing herein shall be considered as a bar to the remand of a case by the Board for further reconsideration, hearing, or rehearing after appeal. §4.355 Omitted compensation. When, subsequent to the issuance of a final order determining heirs under §4.352, it is found that certain additional compensation had been due the decedent and had not been included in the report of compensation, the report shall be modified administratively by the Project Director. Copies of such modification shall be furnished to all heirs as previously determined and to the appropriate administrative judge. §4.356 Appeals. (a) A party aggrieved by a final order of an administrative judge under §4.352, or by a final order upon reconsideration of an administrative judge under §4.354, may appeal to the Board (address: Board of Indian Appeals, Office of Hearings and Appeals, 4015 Wilson Boulevard, Arlington, Virginia 22203). A copy of the notice of appeal must also be sent to the Project Director and to the administrative judge whose decision is being appealed. (b) The notice of appeal must be filed with the Board no later than thirty (30) days from the date on which the final order of the administrative judge was mailed, or, if there has been a petition for reconsideration or rehearing filed, no later than thirty (30) days from the date on which the final order upon reconsideration of the administrative judge was mailed. A notice of appeal that is not timely filed will be dismissed. (c) The Project Director shall ensure that the record is expeditiously forwarded to the Board. (d) Within thirty (30) days after the notice of appeal is filed, the appellant shall file a statement of the reasons why the final order or final order upon reconsideration is in error. If the Board finds that the appellant has set forth sufficient reasons for questioning the final order or final order upon reconsideration, the Board will issue an order giving all parties in interest an opportunity to respond, following which a decision shall be issued. If the Board finds that the appellant has not set forth sufficient reasons for questioning the final order, the Board may issue a decision on the appeal without further briefing. (e) The Board may issue a decision affirming, modifying, or vacating the final order or final order upon reconsideration. A decision on appeal by the Board either affirming or modifying the final order or final order upon reconsideration shall be final for the Department of the Interior. In the event the final order or final order upon reconsideration is vacated, the proceeding shall be remanded to the appropriate administrative judge for reconsideration and/or rehearing. 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. 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. (b) Transferees and encumbrancers. Transferees and encumbrancers of 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 postoffice 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. (d) If the statement of standing required by §4.412(b) is not filed with the Board or is not served upon adverse parties within the time required. [36 FR 7186, Apr. 15, 1971, as amended at 47 FR 26392, June 18, 1982] §4.403 Finality of decision; reconsideration. A decision of the Board shall constitute final agency action and be effective upon the date of issuance, unless the decision itself provides othewise. The Board may reconsider a decision in extraordinary circumstances for sufficient reason. A petition for reconsideration shall be filed within 60 days after the date of a decision. The petition shall, at the time of filing, state with particularity the error claimed and include all arguments and supporting documents. The petition may include a request that the Board stay the effectiveness of the decision for which reconsideration is sought. No answer to a petition for reconsideration is required unless so ordered by the Board. The filing, pendency, or denial of a petition for reconsideration shall not operate to stay the effectiveness or affect the finality of the decision involved unless so ordered by the Board. A petition for reconsideration need not be filed to exhaust administrative remedies. [52 FR 21308, June 5, 1987] APPEALS TO THE BOARD OF LAND APPEALS 4.410 Who may appeal. (a) Any party to a case who is adversely affected by a decision of an officer of the Bureau of Land Management or of an administrative law judge shall have a right to appeal to the Board, except (1) As otherwise provided in Group 2400 of chapter II of this title, (2) 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, (3) Where a decision has been approved by the Secretary, and (4) As provided in paragraph (b) of this section. (b) For decisions rendered by Departmental officials relating to land selections under the Alaska Native Claims Settlement Act, as amended, any party who claims a property interest in land affected by the decision, an agency of the Federal Government or a regional corporation shall have a right to appeal to the Board. [47 FR 26392, June 18, 1982] §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. A person served with the decision being appealed must transmit the notice of appeal in time for it to be filed in the office where it is required to be filed within 30 days after the date of service. If a decision is published in the FEDERAL REGISTER, a person not served with the decision must transmit a notice of appeal in time for it to be filed within 30 days after the date of publication. (b) The notice of appeal must give the serial number or other identification of the case and may include a statement of reasons for the appeal, a statement of standing if required by §4.412(b), and any arguments the appellant wishes to make. (c) 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. (R.S. 2478, as amended, 43 U.S.C. 1201; sec. 25, Alaska Native Claims Settlement Act, as amended, 43 U.S.C. 1601-1628; and the Administrative Procedure Act, 5 U.S.C. 551, et seq.) [36 FR 7186, Apr. 15, 1971, as amended at 36 FR 15117,Aug. 13, 1971; 49 FR 6373,Feb. 21, 1984] $4.412 Statement of reasons, statement of standing, written arguments, briefs. (a) If the notice of appeal did not include a statement of the reasons for the appeal, the appellant shall file such a statement 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. In any case, the Board will permit the appellant to file additional statements of reasons and written arguments or briefs within the 30-day period after the notice of appeal was filed. (b) Where the decision being appealed relates to land selections under the Alaska Native Claims Settlement Act, as amended, the appellant also shall file with the Board a statement of facts upon which the appellant relies for standing under §4.410(b) within 30 days after filing of the notice of appeal. The statement may be included with the notice of appeal filed pursuant to §4.411 or the statement of reasons filed pursuant to paragraph (a) of this section or may be filed as a separate document. (c) Failure to file the statement of reasons and statement of standing within the time required will subject the appeal to summary dismissal as |