CHAPTER 6 PROCESS AND PRACTICE TIPS FOR APPEALS TO THE INTERIOR BOARD OF INDIAN APPEALS1

• Jurisdiction: United States

Challenging and Defending Federal Natural Resource Agency Decisions
(Sep 2016)
CHAPTER 6
PROCESS AND PRACTICE TIPS FOR APPEALS TO THE INTERIOR BOARD OF INDIAN APPEALS¹
Robert S. Thompson III
Shareholder
Greenberg Traurig
Denver, CO
Robert "Daubs" Thompson IV
Associate
Greenberg Traurig
Denver, CO

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ROBERT S. THOMPSON III is a Shareholder with Greenberg Traurig in Denver, Colorado. Rob has broad experience in Indian law and energy and natural resources matters, with a focus on the oil and gas industry. He represents tribal and non-tribal clients in resource development, production, rights-of-way, easements, leases, joint ventures, and partnerships. Upon graduation from the University of Wisconsin Law School in 1979, Rob was selected for the Solicitor's Honors Program and moved to Washington, D.C., to serve in the Solicitor's Office of the Department of Interior. Rob has been listed in The Best Lawyers in America, Native American Law since 2010 and was named "Lawyer of the Year" in 2016. He has also been selected to 5280's Top Lawyers, and Super Lawyers.

ROBERT S. "DAUBS" THOMPSON IV is an associate with Greenberg Traurig in Denver, Colorado. Daubs has broad experience working on myriad legal issues dealing with oil and gas development, natural resource extraction, and American Indian law. Within these fields, he represents clients in a variety of matters, including Federal, tribal, and state/local jurisdictional issues, property disputes, natural resources transaction agreements, and natural resource regulatory issues. Daubs graduated from the University of California at Los Angeles, School of Law in 2010 and holds a B.A. in History from the University of Utah, 2007. In addition and prior to law school, Robert worked as a land technician/legal assistant researching and analyzing oil and gas title documents, chaining land interests, and performing a number of activities related to natural resource development.

TABLE OF CONTENTS

BACKGROUND

INTRODUCTION

I. INDIAN RIGHTS-OF-WAY, MINERAL LEASING and MINERAL DEVELOPMENT AGREEMENT STATUTES

1.1 Rights-of-Way

1.1.1 Application for and Assignments of Rights-of-Way

1.1.2 Termination of Rights-of-Way

1.2 Indian Mineral Leasing Acts - Leases for Mining Purposes

1.2.1 Grant and Approval of Mining Leases, Agreements and Assignments

1.2.2 Geological and Geophysical Permits

1.2.3 Non-Compliance and Cancellation of Mining Leases

1.3 Indian Mineral Development Agreements

1.3.1 Negotiation and Approval of Minerals Agreements

1.3.2 Amendments to and Assignments of Minerals Agreements

1.3.3 Non-Compliance, Penalties and Cancellation of Minerals Agreements

II. HIERARCHY OF THE BIA and BIA APPEAL PROCEDURES

2.1 The Agency Office

2.2 The Regional Office

2.3 The IBIA and the Assistant Secretary

2.3.1 Finality of Decisions Pending Appeal

2.3.2 Procedural Rules of OHA and the IBIA

2.4 Elements of the Notice of Appeal, Statement of Reasons and Briefs to the IBIA

2.4.1 Statement of Reasons

2.4.2 Briefing before the IBIA

2.5 Time, Service, and Scope of Review

2.5.1 Computing Time

2.5.2 Service and Filing

2.5.3 Scope of Review

2.6 Final Agency Action and Decisions Appealable to District Court

III. CONCLUSION

BACKGROUND

Not surprisingly, many mineral development practitioners have managed to represent their clients throughout their entire careers without ever having encountered the need to appeal an administrative decision of the Bureau of Indian Affairs ("Bureau" or "BIA"). However, in today's ever shrinking land market and with the continued development of mineral resources within Indian country, including the relatively recent Bakken development, as well as development within the Uinta Basin and the San Juan Basin, that is likely no longer to be the case. The underlying reason why administrative appeals involving the leasing, use and development of Indian minerals and lands is quite simple.

Indian land² comprises approximately five percent of the land area in the United States.³ The mineral reserves underlying Indian lands are significant. According to the Governmental Accountability Office ("GAO"), 13.2 million barrels of oil were extracted and sold from Indian lands in 2010, with the number increasing to 19.4 million barrels in 2011.⁴ In addition, 249.4 million cubic feet of dry natural gas was extracted and sold from Indian lands in 2010, with 250 million cubic feet by 2011. Furthermore, in 2010, 130 million gallons of wet natural gas liquids

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were extracted and sold from Indian lands, with 140 million gallons in 2011.⁵ The total sales value of these minerals was approximately $2 billion in 2010 and $2.8 billion in 2011.⁶ Moreover, these sales generated approximately $408 million in Indian royalties in 2010, with $538 million in Indian royalties in 2011.⁷

Assuming that a lessee acquires an interest in minerals located on Indian land or requires access on Indian land, the lessee can anticipate or should anticipate finding itself in disputes with Indian landowners, upon whose property the activity is occurring. With landowners, lessors, and development companies being who and what they are, disagreements are likely inevitable. In the event a developer versus Indian landowner dispute arises, the developer may find itself unable to challenge the Indian landowner's actions⁸ or be forced to litigate the dispute in a judicial forum that is seen by some as unsympathetic to oil and gas and other mineral interests.⁹ The BIA and Interior Board of Indian Appeals' ("Board" or "IBIA") appeal procedures offer an independent and alternative avenue to mineral development interests to resolve such disputes if and when they arise.¹⁰ Accordingly, the holder of a BIA-issued or approved grant of access or mineral lease should become familiar with the procedures to appeal the actions of a BIA official or an Assistant Secretary-Indian Affairs, as appropriate, affecting the holder's rights.¹¹

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Moreover, access to Indian lands and minerals for exploration and development may be obtained only with the consent of the Indian landowner and the approval of the BIA.¹² Indian land grants of access are subject to the specific act under which granted and the applicable BIA regulations in Title 25 of the Code of Federal Regulations.¹³ Special leasing statutes and regulations for certain Indian lands in several states, including Alaska, Montana, Oklahoma, and Wyoming, also govern access grants in those states, but are not addressed in this paper because of their specificity. Nevertheless, the same administrative appeal procedures described herein also apply to these lands."¹⁴

INTRODUCTION

This paper addresses the administrative appeal procedures within the BIA for BIA-issued or approved rights-of-way, mineral leases, and mineral agreements. The applicable federal statutes and the regulations thereunder impose strict procedural requirements on the non-Indian grantee, the Indian landowner, and the BIA.¹⁵ In brief summary, non-Indians, such as mineral development companies operating on Indian lands, have standing to use the BIA's appeal procedures only with regard to (1) an action of a BIA official or (2) the inaction of a BIA official concerning the company's right to occupy and use Indian land.¹⁶

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The administrative appeal procedures described below, applicable filing requirements and time limitations are the general procedures for BIA appeals found in 25 C.F.R. Part 2 and 43 C.F.R. Part 4. Those general procedures apply to Indian rights-of-way, mineral leases, and mineral agreements, and control a BIA appeal in the absence of another specific appeal procedure contained in a particular statute or regulation.¹⁷ The procedures are presented in a stepwise fashion as the regulations would be encountered when making an appeal up through the hierarchy of the BIA to the IBIA.

To better encompass the topic of doing business on Indian lands and making administrative appeals within the BIA, this paper first introduces those Indian rights-of-way, leasing statutes and regulations pertinent to mineral extraction and development on Indian lands, then moves to the organizational hierarchy of the BIA and concludes with the BIA's internal appeal procedures.

I. INDIAN RIGHTS-OF-WAY. MINERAL LEASING and MINERAL DEVELOPMENT AGREEMENT STATUTES.

An oil and gas or other mineral exploration, development and production company's ("mineral company" or "company") right to occupy, explore or develop Indian land is made at the permission of the Indian landowner and the United States through the BIA.¹⁸ The company's rights to use and occupation will be defined by the documents granting access, all of which are either issued or approved by the BIA. The company's duties and rights under a grant of access are further defined by federal statute and regulation. Decisions of the BIA affecting such duties and rights are subject to the appeals discussed in Section II below. A summary of those statutes and regulations most commonly applicable to a mineral company operating on or using Indian land follows.

1.1 Rights-of-Way.

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Rights-of-way across Indian lands both for access to the mineral leasehold and to get the minerals to market are granted by the BIA under two principal acts, the Act of March 11, 1904, 33 Stat. 65, codified at 25 U.S.C. § 321 (the "1904 Act" rights-of-way for pipelines)¹⁹ and more commonly, the Act of February 5, 1948, 62 Stat. 17, codified at 25 U.S.C. §§ 323 to 328 (the "1948 Act" rights-of-way for all purposes).²⁰ The regulations at 25 C.F.R. Part 169 govern rights-of-way granted under either act.²¹

1.1.1 Application for and Assignments of Rights-of-Way.

Application for a right-of-way grant across either tribal or allotted Indian lands is made to the Secretary of the Interior ("Secretary").²² Access to Indian land to survey for a...