Yakama Nation v. Northwest Regional Director, Bureau of Indian Affairs, 52 IBIA 094 (2010)

INTERIOR BOARD OF INDIAN APPEALS Yakama Nation v. Northwest Regional Director, Bureau of Indian Affairs 52 IBIA 94 (09/24/2010)

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

YAKAMA NATION, Appellant, v. NORTHWEST REGIONAL DIRECTOR, BUREAU OF INDIAN AFFAIRS, Appellee.

Order Affirming Decision in Part, Vacating Decision in Part, and Remanding Docket Nos. IBIA 07-132-A 08-08-A 08-149-A September 24, 2010

In these appeals before the Board of Indian Appeals (Board), the Yakama Nation (Nation) seeks review of three decisions by the Northwest Regional Director (Regional Director), Bureau of Indian Affairs (BIA), dated July 31, 2007, August 22, 2007, and August 7, 2008, in which he upheld certain Operation and Maintenance (O&M) bills issued to the Nation in 2006 and 2007 by BIA’s Wapato Irrigation Project (WIP).1 We hold that we lack jurisdiction to consider whether the applicable O&M regulations are invalid, whether BIA lacks authority to bill idle lands for O&M fees, and whether BIA is estopped from billing idle lands by its past practice of not doing so; we vacate that portion of the Regional Director’s decisions in which he determined that all assessable acreage was liable1

Secretary, in concurring with the IG’s recommendation to bill idle lands, did not specifically address and decide the applicability and effect of these exemptions, i.e., whether the bills challenged by the Nation are subject to cancellation because WIP’s infrastructure cannot deliver water to the billed parcels; whether WIP must first determine that the Nation possesses adequate funds to pay its O&M charges; and whether BIA has certain unmet trust responsibilities that affect the validity of the challenged O&M bills. The Regional Director also contends that the Board lacks jurisdiction over the Nation’s appeals because, he argues, they indirectly implicate the annual O&M rate setting.19 According to the Regional Director, all acreage — including acreage for idle and unproductive lands — is included in the total acreage that serves as the basis for apportioning the annual costs of operating and maintaining WIP. Therefore, the Regional Director argues, the time for the Nation to have appealed errors in acreage or exemptions from O&M was during the annual comment period for the new O&M rates, and, because the rate setting is now final and the rates have the effect of law, the Board lacks jurisdiction to consider any argument that would challenge or undermine the 2006 and 2007 rate setting processes. We reject this argument. The rate setting notice — which consists of publication in the Federal Register of the proposal to increase rates, followed by a comment period, and thereafter by publication of the final notice of rates — announces the anticipated budget for the Indian irrigation projects, the total number of acres included in the projects, and the expected cost per acre that will be billed for the coming year. There is nothing in the rate setting notice that informs individual landowners that their land (including lands in which the landowner holds a fractured interest) is included in this calculation or, more importantly, that if they claim an exemption from O&M charges, such claim(s) should be raised in a timely response to the annual rate setting notice. Therefore, we conclude that there is inadequate notice to landowners that claims of exemption from O&M fees should19

allotment or farm unit21 must be designated as “assessable,” and (2) irrigation water must be deliverable to the allotment or farm unit “from the constructed works.” The Nation does not argue that its lands were not designated as assessable. Instead, the Nation focuses on the second factor, and argues that WIP’s infrastructure either failed to exist or had so deteriorated that irrigation water could not be delivered to certain lands for which the Nation was billed O&M charges in 2006 and 2007. The Nation submitted declarations and reports in support of its assertions, and maintains that it is BIA’s responsibility first to determine whether the infrastructure can support the delivery of water before charging O&M fees. The Regional Director argues that it makes little sense to require WIP to bear the burden of determining the deliverability of water to each parcel in WIP before O&M charges may be levied. He argues that, given the ongoing budgetary shortfall at WIP and WIP’s responsibility to administer WIP “to provide the maximum possible benefits from the project’s . . . constructed facilities,” 25 C.F.R. § 171.1(c), it would not be economical for WIP to expend valuable resources to evaluate whether WIP can actually deliver water to the Nation’s parcels, especially where water has not been requested. The Regional Director also contends that § 171.19(a) cannot be considered in a vacuum but must be read in conjunction with other requirements in Part 171, citing §§ 171.17 (accrued O&M charges must be paid to date before water will be delivered) and 171.7(a) (water must first be requested before it will be delivered). Although the Regional Director does not argue in his brief that water must be requested before BIA will determine whether WIP’s facilities are capable of delivering water, it is implied by his arguments and he specifically so states in his decisions. See July 31, 2007, Decision at 6 (unnumbered); Aug. 22, 2007, Decision at 4; Aug. 7, 2008, Decision at 8. Finally, the Regional Director argues that the only statutory authority for exemptions from the 2006 and 2007 O&M assessments is found at 25 U.S.C. §§ 389a and 389b, and thus any exemption found in § 171.19(a) from O&M charges is derived from these two statutory provisions. Therefore, the Regional Director contends that unless the Nation requests nonirrigable status for its lands (either temporary or permanent), WIP is entitled to bill and collect O&M fees for the Nation’s lands.22 Notably,

At the time of the O&M invoices challenged in this appeal, a “farm unit” for WIP was generally defined as at least 80 contiguous acres under the same ownership or leased by the same lessee(s) unless the original Indian allotment consisted of less than 80 contiguous acres. 25 C.F.R. § 171.4(d). In his briefs, the Regional Director refers to this status as temporarily or permanently “non-assessable,” which is consistent with the terms used in the recently revised regulations. (continued...) 52 IBIA 108

in his briefs before the Board, the Regional Director does not directly address the Nation’s legal contention that § 171.19(a) permits O&M fees to be collected only from those lands to which water can be delivered via the irrigation district’s infrastructure nor, with the exception of Unit 2, does the Regional Director directly address the Nation’s factual contentions that WIP’s infrastructure in certain locations either does not exist or has deteriorated to such a degree that water cannot be delivered to the farm unit or allotment. We disagree with the Regional Director, and conclude that § 171.19(a) meant what it said: O&M charges could be levied only against those lands designated as assessable and “to which irrigation water [could] be delivered . . . from the constructed works.” Subsection 171.19(a) was promulgated in 1977 as § 191.19(a) in a comprehensive revision of BIA’s irrigation regulations. See 42 Fed. Reg. 30,361 et seq. (June 14, 1977).23 Prior to 1977, each Indian irrigation project had its own regulations, governing, inter alia, the operation and maintenance of the irrigation project. See, e.g., 25 C.F.R. Part 200 (WIP’s regulations).24 A number of the former regulations — but not WIP’s — contained the following provision: “The annual . . . charge for operation and maintenance shall be levied against the entire irrigable area of each farm unit or allotment to which irrigation water can be delivered from present constructed works.” See 25 C.F.R. §§ 191.16 (Blackfeet Irrigation Project), 192.15 (Colville Irrigation Project), 193.16 (Crow Irrigation Project, 194.17 (Flathead Irrigation Project), 198.16 (Fort Peck Indian Irrigation Project), and 201.16 (Wind River Irrigation Project) (1976) (emphasis added). In contrast, WIP’s regulations formerly provided for O&M charges to “be issued each year . . . for all tracts of land designated for inclusion in [WIP].” Id. § 200.15 (1976) (emphasis added). There was no restriction in § 200.15 or elsewhere in WIP’s regulations for O&M fees to be levied only against those lands “to which irrigation water can be delivered from present constructed works.” New Part 191 (later redesignated Part 171) harmonized these disparate

(...continued) See, e.g., 25 C.F.R. § 171.101 (2010) (defining “temporarily non-assessable” and “permanently non-assessable”). Because the revised regulations did not exist at the time of the O&M bills at issue in this decision, we will use the term “nonirrigable,” which is found in 25 U.S.C. §§ 389a and 389b, rather than “non-assessable.” Part 191 was redesignated as Part 171 in 1982. See 47 Fed. Reg. 13,326-13,328 (Mar. 30, 1982). Regulations governing O&M charges, and related matters, were contained in a separate regulation. See, e.g., 25 C.F.R. Part 221 (1976). 52 IBIA 109

regulations, and thus effected a change in O&M billing for WIP. See 41 Fed. Reg. 39,030, 39,031 (Sept. 14, 1976) (one purpose of the new regulation is to consolidate the several irrigation project regulations into a single, uniform regulation). Instead of billing “all tracts of land,” WIP could only bill those that were assessable and to which WIP could deliver water from the constructed works.25 Moreover, the Department consciously carved out exceptions to § 171.19(a) without altering the operative language limiting the collection of O&M fees from assessable lands to those lands irrigable from the constructed works. For example, with respect to the Toppenish-Simcoe...