Welk Park North v. Acting Sacramento Area Director, 29 IBIA 213 (1996)
|Docket Number:||IBIA 95-81-A|
Appeal from a decision affirming an increase in administrative fees for processing lease documents.
Board of Indian Appeals: Jurisdiction
The Board of Indian Appeals is not a court of general jurisdiction and has only those powers delegated to it by the Secretary of the Interior. It has not been delegated authority to award money damages against the Bureau of Indian Affairs or an Indian tribe.
Board of Indian Appeals: Generally--Indians: Generally
The Board of Indian Appeals has a well-established practice of declining to consider arguments or issues raised for the first time on appeal.
Indians: Leases and Permits: Administrative Fees
Under 25 U.S.C. § 413 (1994), the Secretary of the Interior may collect reasonable fees in connection with the leasing of Indian land. When the expenses of the work are paid from Indian tribal funds, the fees collected are to be credited to such funds.
Board of Indian Appeals: Generally--Indians: Leases and Permits: Administrative Fees--Indians: Tribal Powers: Tribal Sovereignty
The Board of Indian Appeals has authority to abstain in a case concerning administrative fees set by an Indian tribe under 25 CFR 162.13(b) when it finds that the matter at issue affects tribal selfgovernment and should therefore be addressed by a tribal forum.
OPINION BY ADMINISTRATIVE JUDGE VOGT
Appellant Welk Park North, d.b.a. Welk Resort Group, Lawrence Welk Desert Oasis, seeks review of a January 19, 1995, decision of the Acting Sacramento Area Director, Bureau of Indian Affairs (Area Director; BIA), affirming an increase in administrative fees for processing lease and sublease documents on the Agua Caliente Reservation. For the reasons discussed below, the Board dismisses this appeal.
Appellant holds a business sublease under Palm Springs Lease PSL-149. 1/ Paragraph 5 of the business sublease states that the purposes of the sublease are: "Operation of the Premises as a golf and tennis country club, open for public use, operation as a condominium project and as a timeshare project with restaurant, office and hotel uses, and operation for any other purpose permitted by zoning ordinances which are applicable to the Premises."
Appellant's sublease was approved on April 25, 1990, by the Director, Palm Springs Field Office, BIA (Office Director). On November 7, 1990, the Office Director approved a form sublease for appellant to use in selling timeshare subleases of its condominium units. Appellant maintains 162 condominium units and sells timeshares in one-week increments.
The Agua Caliente Band of Cahuilla Indians (Tribe) performs certain realty functions for BIA under a Memorandum of Agreement (MOA) which is renewed and/or revised periodically. The MOA relevant to this appeal covered the period January 1, 1993, through December 31, 1994. It provided that the Tribe would make payment to its employees, contractors, and vendors for services rendered, and that BIA would reimburse the Tribe for these payments plus 15 percent for the Tribe's direct and indirect costs. The payments were to be made from administrative fees collected by BIA pursuant to 25 U.S.C. § 413 (1994) 2/ and 25 CFR 162.13(b)(1). Although the setting of fees is not specifically addressed in the MOA, the Tribe has traditionally established a fee schedule, which has been approved by BIA. 3/ ________________________ 1/ Lease PSL-149 was approved in 1971. The present lessee is Falcon Lake Properties. The lessors are Ruth Elaine Patencio, Belinda Segundo Short, Georgiana Ellen Rice Ward, Debrah Gonzales Purnel, Leonard Charles Bow, Lawrence Joseph Bow, Darlene Marie Diaz Ruiz, and Frances Diaz Edwards Cummings.
For a brief history of Lease PSL-149, see Falcon Lake Properties v. Assistant Secretary -Indian Affairs, 15 IBIA 286 (1987).
2/ All further references to the United States Code are to the 1994 edition.
3/ The Tribe has established the fee schedule for leasing on the Agua Caliente Reservation at least since 1965. The earliest document in the record for this appeal is a Mar. 1, 1966, tribal resolution, approved by the Area Director on Mar. 8, 1966. That resolution revised a fee schedule which had been established in a Sept. 7, 1965, tribal resolution, approved by the Area Director on Sept. 23, 1965.
The realty functions performed by the Tribe under the MOA include processing documents related to subleases, including timeshare subleases, preparatory to BIA approval of the documents and recording in BIA land records. At the time appellant entered into its business sublease, the Tribe's fee for processing timeshare sublease documents was $40 per document (Appellant's June 3, 1993, Letter to the Tribal Chairman and Nov. 15, 1993, Letter to the Office Director).
The record indicates that the Tribe adopted a new fee schedule in Resolution 52-92, dated December 1, 1992. 4/ The schedule was approved by the Office Director on December 16, 1992, and was to become effective on January 15, 1993. The charges for residential subleases, including timeshare subleases, were, as relevant to this appeal, $150 for a sublease, $100 for a deed of trust with 7-day turnaround, $150 for a deed of trust with 24-hour turnaround, and $300 for immediate processing of a deed of trust. In the case of appellant's timeshare subleases, the new fees, in most cases, result in a total charge of $250-350 per transaction, because each sublease package includes the sublease itself and either one or two deeds of trust. Under the previous schedule, appellant paid $80-120 per transaction. 5/
Apparently, there was initial uncertainty as to whether the new fees would apply to appellant's timeshare subleases. See Appellant's December 28, 1992, and January 11, 1993, letters to the Office Director. By June 1993, the question had been resolved. On June 2, 1993, the Office Director wrote to appellant, stating that, as of June 15, 1993, appellant would be required to pay the new fees. At BIA's suggestion, appellant sought a meeting with the Tribal Council to discuss the fee increase. The Tribal Council referred the matter to the Tribe's Planning Commission, which evidently informed appellant that it intended to refer the matter back to BIA. 6/ Recounting this sequence of referrals in a June 14, 1993, letter to the Office Director, appellant asked for a meeting with BIA staff. The Office Director responded on June 17, 1993, stating:
The Bureau of Indian Affairs does not determine the fees to be charged. Those fees are determined, after much review and consideration, by the Tribal Council. When they recommended the __________________________ 4/ No copy of this resolution is included in the record.
5/ No copy of the previous fee schedule is included in the record. However, according to the report of a study commissioned by the Tribe, the fees in 1991 were $40 per document for timeshare subleases and $85 per document for other residential subleases, "although a similar amount of processing time and work was involved" for the two types of subleases (Franklin Report at 1 (see further discussion of this report infra)).
6/ Several months later, the Tribe's Planning commission agreed to meet with appellant. At the meeting, which took place on Feb. 7, 1994, appellant requested that the Tribe "(1) revise the fee schedule to reflect the actual and reasonable cost to process the documents and (2) direct the BIA to refund to [appellant] the amounts it has paid in excess of the actual and reasonable costs" (Appellant's Presentation to Tribe's Planning Commission at 2). At that time, the Planning Commission advised appellant that a study was underway concerning the fees.
new fees in December 1992 they did so knowing that timeshare projects had been charged a lower fee at their inception to assist them in starting their projects. After the program was in effect it became apparent that these projects require the most attention due to the amount of time spent monitoring the project and keeping title to the timeshares straight. By starting your new program of offering alternate year vacation units our workload will double.
Unless and until the Tribal Council amends their Administrative Fee
Schedule the charges listed on the December 16, 1992 schedule will remain in full force.
On November 15, 1993, appellant wrote to the Office Director, stating that it wished to invoke the arbitration provision of the master lease with respect to the increase in administrative fees. 7/ The Office Director responded on December 1, 1993, stating that the arbitration provision was inapplicable to the question of administrative fees and that "the fees established by the Agua Caliente Band of Cahuilla Indians will be adhered to by this office."
On December 15, 1993, appellant wrote to the Office Director, again objecting to the increase in fees and asking to review the costs upon which the increase was based. On December 31, 1993, appellant appealed the Office Director's December 1, 1993, letter to the Area Director.
Some time after it had filed its notice of appeal and statement of reasons, but before the Area Director had issued a decision, appellant obtained a declaration from a former employee of the Tribal Employees Supplemental Account (TESA), the tribal organization which performs the realty services at issue here. The declaration, dated July 14, 1994, stated that the former employee had estimated the amount of time and the cost for each step in processing sublease documents and had...
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