Gallegos, Alonzo S.,et al. v. Southwest Regional Director, 41 IBIA 286 (2005)

• Court: Interior Board of Indian Appeals

1. GALLEGOS, GLORIA G.

and MARIA L. GALLEGOS, Appellants,

Order Vacating and Remanding Decision Docket No. IBIA 03-117-A October 18, 2005

Appellants Alonzo S. Gallegos, Dolores G. Baca, Victor M. Gallegos, George G. Gallegos, Patrick A. Gallegos, Gloria G. Gormley, Lucia M. Gallegos, and Maria L. Gallegos appeal from a May 20, 2003 decision of the Southwest Regional Director, Bureau of Indian Affairs (Regional Director; BIA), canceling a rangeland grazing lease with the Pueblo of Cochiti (Pueblo). As discussed below, the Board vacates the Regional Director's decision and remands the case to him for further consideration.

Background

On March 28, 1994, Appellants entered into rangeland grazing lease number M20704210010037 with the Pueblo, which BIA's Southern Pueblo Agency approved on July 12, 1994. The lease includes 2,630 acres in Sandoval and Santa Fe counties, New Mexico within the Pueblo's Santa Cruz Springs tract. It is for a term of 30 years, retroactively

commencing July 9, 1984. 1/ The lease allows Appellants a total of 554 Animal Unit Months (AUMs) per year. 2/

The lease contains a two-tier rental provision. Annual rental for 267 AUMs is to equal the rate charged each year by the United States Forest Service for grazing land under its control. Lease Part I, p. 2. Annual rental for the remaining 287 AUMs is to equal the fair market value for grazing of private rangelands, as determined by a BIA appraiser. Id. BIA is to re-evaluate the rental rate for the 287 AUM portion of the lease every five years, starting in 1999. Id.

The process for billing and collecting rent is specified in Part II:

1. Bill for Collection: Each year prior to the beginning of the grazing season, the designated tribal treasurer will send the Lessee a bill for collection specifying the kind, number and class of animals allowed to graze, the period of use and the total grazing fees (annual rental) due. 2. Payment of Annual Rental: The Lessee will deposit his payment for annual rental with the designated tribal treasurer not later than the date specified in the bill for collection. The Lessee will not allow his livestock on the premises until the annual rental specified in the bill for collection is paid in full.

   Lease Part II, ¶¶ 1 and 2, pp. 2 - 3. Enforcement provisions of the lease provide as follows:

2. This lease may be canceled in whole or in part for failure to comply with any of the provisions and requirements specified in Parts I and II hereof, or any of the regulations of the Secretary on which this lease is based, or for failure to comply with applicable, state, federal or tribal laws or regulations.

   Lease Part IV, ¶ 2, p. 5.

   1/ The lease is evidently designed to relate back to the date Public Law 98-344, 98 Stat. 315, was passed. That law transferred the Santa Cruz Springs tract from the United States Forest Service to the United States in trust for the Pueblo.

   2/ Current 25 C.F.R. § 166.4 defines " Animal Unit Month" as "the amount of forage required to sustain one cow or one cow with one calf for one month." Although not always defined by regulation, AUMs have had this well-established meaning since long before the parties entered into the lease. See, e.g., Fort Berthold Land & Livestock Ass'n v. Aberdeen Area Director, 8 IBIA 230, 234 (1981).

   There is no dispute with respect to rent due before the date the lease was signed. The Pueblo acknowledged that Appellants 3/ paid all annual rental due from July 9, 1984 through the date of lease execution, March 28, 1994. Lease Part I, p. 2. Likewise, there is no indication of any problem with Appellants' rental payments before late 1999, when a revised rental rate for the 287 AUM portion of the lease came into effect. Rental payments to be made after that date are the problem.

   In August 1999, BIA appraiser Randolph Long prepared a "Consultation Statement," specifying a range of rates for grazing for the Superintendent's use to determine a new annual grazing fee. Apparently, the Superintendent settled on a rate in the middle of the appraiser's range, which was $10.74 per AUM for the 287 AUM portion of the lease. 4/ Appellants almost immediately objected to the BIA calculation, and asked about canceling the 287 AUM portion of the lease, while keeping the 267 AUM portion of the lease calculated at the Forest Service rate. Appellants also asked about appealing the BIA calculation. BIA apparently provided Appellants with some verbal advice on appealing the rate incease, but Appellants never pursued an appeal.

   On November 23, 1999, the Pueblo sent Appellants an invoice for the grazing season commencing November 1, 1999, using the new BIA figure. The invoice showed a Forest Service rate of $1.98 per AUM for the 267 AUM portion of the lease, totaling $528.66. The invoice also showed a new BIA rate of $10.74 per AUM for the remaining 287 AUM portion of the lease, totaling $3,082.38. Altogether, the invoice came to $3,611.04.

   Appellants paid no portion of the new bill within ten days, as required by the Pueblo's invoice and the terms of the lease. Instead, on December 3, 1999, Appellants wrote to the Superintendent requesting a meeting to discuss "some discrepancies" Appellants believed to exist in BIA's appraisal. Appellants eventually paid $528.66 in February 2000, representing acceptance of the 267 AUMs charged at the Forest Service rate, but they did not pay the rest of the Pueblo's invoice.

   The Pueblo sent Appellants another invoice for annual rental on January 25, 2001. The invoice again totaled $3,611.04. It did not reflect the fact that $3,082.38 remained unpaid from the previous year, for a total debt of $6,693.42.

   3/ The lease gives Alonzo S. Gallegos sole power of attorney to act on behalf of all Appellants. Lease Part IV, ¶¶ 9(b) and (d), p. 6. For purposes of this order, the Board will refer to Appellants as a whole even when Alonzo S. Gallegos alone is the party involved in the action or communication under discussion.

   4/ The Regional Director's decision says the "appraisal determined" the $10.74 rate, but that rate does not appear in the appraiser's report.

   Appellants claim that on March 3, 2001, they tendered a check to the Pueblo in the amount of $6,693.42. The Pueblo denies this. On March 19, 2001, the Pueblo sent the Superintendent a letter outlining the failure of Appellants to pay the full amount of the annual rental called for under the terms of the lease, and asked...