Poo-sa'-key v. Portland Area Director, 25 IBIA 181 (1994)

:

v. : : Docket No. IBIA 94-15-A

This is an appeal from a Finding of No Significant Impact (FONSI) issued under the National Environmental Policy Act, 42 U.S.C. § 4321 (1988). The FONSI was approved on September 20, 1993, by the Portland Area Director, Bureau of Indian Affairs (Area Director; BIA), and concerned a proposed business lease of Coquille tribal land, and a $4½ million direct loan, to the Coquille Economic Development Corporation, for the purpose of constructing and operating an assisted care living facility. Appellant was furnished with a copy of the FONSI on September 22, 1993. On September 28, 1993, she was formally advised of the procedures for appealing the FONSI to the Board.

Appellant's notice of appeal, received by the Board on October 18, 1993, stated in its entirety:

Re: Appeal of [FONSI] dated Sept. 20, 1993; Coquille Tribe, construction on Tupper Rock site in Bandon, Oregon

Default by the BIA Portland office in giving notice of same to people and groups that sent objections by FAX.

Hello,

According to [the Area Director], this is the official way to appeal the Fonsi issued on the above site. (see his letter attached). I want to:

1) file a formal objection to the FONSI

2) be notified if [the Area Director's] letter cited above is correct,

3) notify you that I am the only person, so far, that has gotten such instructions . . .

the published notice did not contain any instructions . . .

the published notice did not give the date the money and lease would be given . . .

I am still awaiting an answer to my question as to whether this notice was even legal.

4) I want a response from you as to what this lack of notice does for those who FAX'd objections, and the due dates given by [the Area Director] in the above cited letter.

5) I want to know if there is any further procedure or form to be used to file our full explanations, facts, and documents for what I assume will be a Hearing.

Thank you for your time.

The Board issued a pre-docketing notice on October 19, 1993, in which it requested that the Area Director submit the administrative record. Following receipt of the record, the Board issued a notice of docketing, setting out the parties' briefing privileges and advising appellant \that she bore the burden of proving error in the decision being appealed. See, e.g., D & K Farms v. Anadarko Area Director, 25 IBIA 157 (1994) (In appeals arising under 25 CFR Part 2, the appellant bears the burden of proving that the agency...

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