Nelvette Siemion, d/b/a White Buffalo Ranch v. Rocky Mountain Regional Director, BIA, 48 IBIA 249 (2009)

• Court: Interior Board of Indian Appeals

INTERIOR BOARD OF INDIAN APPEALS Nelvette Siemion, d/b/a White Buffalo Ranch v. Rocky Mountain Regional Director, Bureau of Indian Affairs 48 IBIA 249 (02/05/2009)

United States Department of the Interior

OFFICE OF HEARINGS AND APPEALS INTERIOR BOARD OF INDIAN APPEALS 801 NORTH QUINCY STREET SUITE 300 ARLINGTON, VA 22203

NELVETTE SIEMION, d/b/a WHITE BUFFALO RANCH, Appellant, v. ROCKY MOUNTAIN REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Affirming Decision (Docket No. IBIA 08-134-A) and Dismissing Appeal (Docket No. IBIA 09-14-A)

Docket Nos. IBIA 08-134-A IBIA 09-14-A February 5, 2009

Appellant Nelvette Siemion, d/b/a White Buffalo Ranch, seeks review by the Board of Indian Appeals (Board) of a July 30, 2008, decision of the Rocky Mountain Regional Director (Regional Director), Bureau of Indian Affairs (BIA), in which he rejected Appellant's challenges to 21 leases of Tribal lands allegedly awarded by the Crow Agency Superintendent (Superintendent), BIA, in 2006 and 2007.1 Docket No. IBIA 08-134-A. The lands at issue are all owned by the Crow Tribe (Tribe), which awards leases for Tribal lands. Because the Tribe, not BIA, awards leases for Tribal lands, the Regional Director denied Appellant's request to "reverse" the Superintendent's decision and "reinstate" her leases. We docket this appeal and affirm the Regional Director's July 30, 2008, decision because Appellant's remedy lies with the Tribe and not with BIA. In Docket No. IBIA 09-14-A, Appellant appeals from the September 5, 2008, decision of the Acting Rocky Mountain Regional Director,2 BIA, in which he affirmed the1

decision of the Superintendent to assess trespass penalties, damages, and costs against Appellant in connection with Appellant's allegedly unauthorized use of trust lands. We docket this appeal, but dismiss it for lack of jurisdiction because it is untimely. Background 1. Facts

Appellant represents that she is a member of the Tribe, and that she and her husband have been in business since 1969 as the White Buffalo Ranch, raising bison on the Crow Reservation. Appellant further represents that their livestock are grazed on their own property as well as on leased individual and Tribal grazing lands. On March 22, 2006, at the request of and on behalf of the Tribe, BIA advertised the sale of leases of 194 tracts of Tribal farming and grazing lands, including lands previously subject to leases held by Appellant that apparently had expired or were about to expire.3 According to the advertisement issued by BIA, the last day to submit bids was April 24, 2006. The advertisement expressly noted that the Tribe "will be responsible for the awarding of the tracts in the advertisement," Notice of Sale, No. 2006-1, Mar. 22, 2006, at unpaginated 2, and that "[t]he Superintendent reserves the right to reject any and all bids and to waive informality or technical defect in the bids received whenever such rejection or waiver is in the interest of the Crow Tribe and the United States," id. at unpaginated 3. Finally, the advertisement provided notice of a right to appeal within the Tribe from the Tribe's decisions to award leases. Id.4 An addendum to the advertisement, in which leases for additional tracts were offered for sale, advised that "ALL BIDS MUST MEET (FRV) FAIR RENTAL VALUE." Addendum to Notice of Sale No. 2006-1, Apr. 14, 2006, at unpaginated 1.5 The leases to be awarded pursuant to the advertisement would commence

The record does not contain copies of the leases for which Appellant was the lessee and which were advertised for sale in 2006.3

on November 1, 2006, and run for 5 years. On April 14, 2006, an additional 24 tracts were added to the lease sale, but the deadline for submitting bids remained April 24, 2006. Appellant submitted bids and bid bonds for leases for 11 of the original 194 tracts that were advertised on March 22 and for 10 of the 24 tracts subsequently added to the lease sale. Appellant's bid sheets are dated April 24, 2006. The record reflects that on April 24, 2006, BIA transmitted the bids to the Tribe for its consideration and decision. On May 5, 2006, BIA received a bid sheet dated May 3, 2006, from another bidder, William He Does It, with bids for leases for 8 of the 24 additional tracts that were added to the sale.6 Appellant's April 24 bid sheet included bids on the same eight tracts. BIA forwarded the late-submitted bid sheet to the Tribe. Appellant claims that in May 2008, she learned for the first time from the Superintendent that the Tribe had not awarded leases to her for any of the 21 tracts on which she bid in 2006. On May 28, 2008, Appellant appealed to the Regional Director from the Superintendent's purported decisions to "award" leases for these tracts to lessees other than Appellant, 4 in 2007 and 17 in 2006.7 She argued that BIA failed to adhere to "the rules and regulations relating to bid leasing" and sought to have the Superintendent's "decision" reversed, and the leases declared void and readvertised. Meanwhile, and according to the record, BIA repeatedly informed Appellant between 2004 and 2008 that her bison were trespassing on trust lands. It is unclear from the record what, if any, action Appellant took in response to these trespass notices. Matters apparently came to a head when, on May 12, 2008, BIA posted public notice of its immediate seizure and impounding of approximately 200 bison of "undetermined

The Administrative Record also contains what appear to be work sheets on which the names of bidders and their bid amounts are listed. Because He Does It is shown as having bid on additional parcels beyond the eight reflected on the bid sheet in the record, it appears that he may have submitted more than one bid sheet. However, only the one bid sheet from He Does It is found in the record.6

ownership [with] no brands." It subsequently was determined that the bison belonged to Appellant. When Appellant sought the release of her livestock, she was informed that she would have to remit penalties and costs associated with the trespass and impoundment. Appellant appealed to the Regional Director from the Superintendent's decision to charge her with trespass, to impound her livestock, and to demand payment of penalties and costs. 2. Proceedings Before the Regional Director In his decision of July 30, 2008, the Regional Director rejected Appellant's appeal from the Superintendent's purported decision to award the challenged leases and explained: The Superintendent does not have the authority to grant or award leases on Tribal lands. Rather, the Tribe has the exclusive right to grant and/or award leases on Tribal lands pursuant to 25 CFR 162.207. Nor does the BIA have any authority to monitor or ensure that the Tribe follows [its] own laws or ordinances regarding the granting or awarding of leases on Tribal lands. In fact, the Tribe has developed a process wherein your clients could have appealed the decision of awarding leases to their Land Resources Committee in accordance with Resolution No. 2001-37(16). Therefore, your request to our office to reverse a decision made by the Superintendent awarding leases on Tribal lands is denied. The Superintendent did not award or grant any leases on any Tribal lands as this action was done by the Crow Tribe, subject to the Superintendent's approval. In his subsequent decision of September 5, 2008, the Regional Director also rejected Appellant's appeal from the Superintendent's decision to charge Appellant with livestock trespass and impose penalties and costs. Both of the Regional Director's decisions contained appeal instructions that informed Appellant that she could appeal by filing a notice of appeal directly with the Board within 30 days from her receipt of the Regional Director's decision. The instructions also included the Board's correct address. Appellant avers that she received the Regional Director's September 5, 2008, decision on September 8, 2008.

3. Proceedings Before the Board Appellant filed a timely notice of appeal to the Board from the Regional Director's July 30 decision. After it received the administrative record from the Regional Director, the Board issued an order to show cause why the Regional Director's July 30, 2008, decision should not be summarily affirmed because, as the Regional Director observed, the Tribe selected the lessees and awarded the leases, not the Superintendent. As to the Regional Director's September 5, 2008, decision, the Board did not receive a notice of appeal from Appellant. However, Appellant did send her appeal notice to the Regional Director and he, in turn, delivered his copy to the Board where it was received on October 15, 2008.8 On October 30, 2008, the Board issued an order to show cause why the appeal should not be dismissed as untimely because it was received more than 30 days after Appellant received the Regional Director's September 5, 2008, decision. See 43 C.F.R. §...