Morgan, James L. v. Acting Aberdeen Area Director, 28 IBIA 138 (1995)

• Court: Interior Board of Indian Appeals

:

v. : : Docket No. IBIA 95-73- A

Appellant James L. Morgan seeks review of a December 15, 1994, decision issued by the Acting Aberdeen Area Director, Bureau of Indian Affairs (Area Director; BIA), assessing liquidated damages for several alleged violations of appellant's Plan of Conservation Operations for land leased through the Winnebago Agency, BIA. For the reasons discussed below, the Board of Indian Appeals (Board) affirms that decision as modified in this opinion.

In the spring of 1994, the Winnebago Agency received several separate reports that appellant had violated the no-till provisions of agricultural leases he held on the Omaha Reservation in Nebraska. After investigating the allegations, the Winnebago Agency Superintendent (Superintendent) determined that the allegations were correct, and that appellant had also violated other lease provisions. After allowing appellant an opportunity to explain his actions and after determining that one alleged violation should be excused, by letter dated August 8, 1994, the Superintendent assessed appellant a total of $22,650 in liquidated damages.

Appellant appealed to the Area Director, who, on December 15, 1994, affirmed the Superintendent's decision. Appellant then appealed to the Board. Although advised of his right to do so, appellant did not file an opening brief to supplement his notice of appeal. The Area Director filed an answer brief.

Appellant bears the burden of proving that the Area Director's decision was erroneous or not supported by substantial evidence. See, e.g., Larry Boyer Land & Cattle Co. v. Portland Area Director, 28 IBIA 135 (1995), and cases cited therein. Appellant does not dispute that his leases contained no-till provisions. Instead, he contends that he only disked the soil to a depth of 2 inches in order to activate a herbicide, which, because of the lack of rain, was not otherwise activated. Appellant cites several reasons for disking the ground to activate the herbicide. He contends that disking was also needed to fill in ruts and holes that had been created by spring combining.

Whether or not disking was indicated under the conditions existing in the spring of 1994 is irrelevant to this appeal. If appellant had discussed the situation with the appropriate BIA officials prior to disking, he might have received a modification to the leases to allow disking. However, he did not seek BIA authorization; instead, he acted unilaterally and in direct violation of the...