Metzger, Woodrow W. v. Acting Deputy Assistant Secretary - Indian Affairs (Operations), 17 IBIA 183 (1989)

W. WOODROW METZGER v.

Appeal from a decision of the Acting Deputy Assistant Secretary--Indian Affairs (Operations) concerning the leasing of certain tracts of Indian trust land on the Pine Ridge Indian Reservation.

Recommended decision adopted.

1. Appeals: Generally--Indians: Generally

   The Board of Indian Appeals will not consider issues which an appellant has not pursued on appeal.

2. Indians: Lands: Generally--Indians: Leases and Permits: Generally

   Monies deposited with the Bureau of Indian Affairs for lease rentals for a specified period of time during which lease applications were being considered and the lease applicant was using the properties are properly paid to the Indian tribal and/or individual landowners as rental for that period of time even though the lease negotiations ultimately fail.

   On June 25, 1984, the Board of Indian Appeals (Board) received a notice of appeal from W. Woodrow Metzger (appellant). Appellant sought review of an April 18, 1984, decision of the Acting Deputy Assistant Secretary-Indian Affairs (Operations) (appellee) affirming the denial of appellant's applications to renew leases of certain tracts of Indian trust land on the Pine Ridge Indian Reservation in South Dakota (Pine Ridge). By opinion dated November 7, 1985, the Board affirmed appellee's decision in part, vacated it in part, and referred the matter to the Hearings Division of the Office of Hearings and Appeals for an evidentiary hearing and recommended decision. 13 IBIA 314 (1985). The case was assigned to Administrative Law Judge John R. Rampton, Jr. The Board received Judge Rampton's recommended decision on May 16, 1989. For the reasons discussed below, the Board adopts the recommended decision.

   IBIA 84-37-A

   Background

   The background of this dispute is extensively set forth in the Board's earlier decision and will be repeated here only to the extent necessary for an understanding of the present decision.

   Appellant has, since the 1950's, leased numerous tracts on Pine Ridge from both the Oglala Sioux Tribe (tribe) and individual tribal members. Originally at issue in this appeal were leases for 56 tracts of trust land, covering approximately 34,524 acres. Appellant's grazing leases on these tracts expired on or about October 31, 1980.

   In its earlier decision, the Board held that appellant and the Bureau of Indian Affairs (BIA) had not entered into a legally binding oral contract to renew the leases; BIA was not estopped from refusing to renew the leases; and BIA erred in advertising certain of the tracts and issuing new leases during the tine appellant's appeal was pending. The Board further found that it did not have a sufficient factual record to determine on which leases appellant had filed timely applications for renewal, and whether BIA had properly accounted for the disposition of $28,056.78 which appellant had deposited with BIA. 1/ Accordingly, these factual questions were referred for an evidentiary hearing and recommended decision.

   The matter was assigned to Judge Rampton, who held a hearing on November 3, 1988, after attempts to settle the case and a motion for summary disposition failed. After the filing of briefs by the parties, Judge Rampton issued a recommended decision on May 12, 1989.

   As provided in 43 CFR 4.339, 2/ the parties had 30 days from their receipt of Judge Rampton's recommended decision in which to file exceptions or...