43 C.F.R. §§ 4.310–4.318

§4.310. Documents; filing, service, computing time, and extensions.

43 C.F.R. § 4.310

(a)

Filing with the Board generally. A document required or permitted to be filed with the Board must be delivered to the Board as specified in this subpart and in the OHA Standing Orders on Contact Information and the OHA Standing Orders on Electronic Transmission found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(b)

Methods of filing—

(1)

Electronic. A document may be filed electronically with the Board under the terms specified in the OHA Standing Orders on Electronic Transmission. Any Federal, State, or local agency and any attorney representing a person or entity must file electronically, unless otherwise specified in the OHA Standing Orders on Electronic Transmission or the Board has allowed non-electronic filing for good cause.

(2)

Non-electronic. A document filed by mail, commercial courier, or hand delivery must be delivered to the Board at the address specified in the OHA Standing Orders on Contact Information.

(c)

Timeliness and effective date of filing. When the Board is determining timeliness, the effective date for filing a notice of appeal or other document with the Board depends on the method of filing.

(1)

Electronic. For documents filed by electronic transmission under the terms specified in the OHA Standing Orders on Electronic Transmission, the effective date of filing is the date of transmission to the Board. A document filed electronically will be considered timely filed if it is transmitted to the Board by 11:59 p.m. Eastern Time on the last day of the period prescribed for filing.

(2)

Mail. For documents sent by United States mail or a foreign government's mail system, the effective date of filing is the date of mailing to the Board.

(i)

If the envelope bears a legible postmark dated on or before the last day of the period prescribed for filing, the document will be considered timely filed although it is received after the prescribed deadline.

(ii)

If the envelope bears a legible postmark dated after the last day of the period prescribed for filing the document, the document will not be considered timely filed, regardless of when the document is deposited in the mail.

(iii)

If the envelope bears an illegible postmark, the person or entity who is required to file the document has the burden of proving the date of mailing to the Board.

(3)

Commercial courier or hand delivery. For documents delivered by commercial courier or hand delivery, the effective date of filing is the date of receipt in the Board's office during its regular business hours by a person authorized to receive the filing. A document delivered by commercial courier or hand delivery that is received after the Board's regular business hours is considered filed on the next business day.

(d)

Serving Notices of Appeal and other documents. Any party filing a notice of appeal or other document with the Board must concurrently serve complete copies of the document, including any attachments, on all interested parties in the proceeding, except as provided at 43 CFR 4.31. Service must be made by electronic transmission, mailing, delivery by commercial courier, or delivery by hand. Service may be made electronically on the Office of the Solicitor and Department of the Interior bureaus and offices under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities, through means they have consented to in writing, under the terms specified in the OHA Standing Orders on Electronic Transmission. All documents filed with the Board must include a certification that service was made as required by this section.

(e)

Computation of time for filing and service. Except as otherwise provided by law, in computing any period of time prescribed for filing and serving a document:

(1)

The day upon which the decision or document to be appealed or answered was served or the day of any other event after which a designated period of time begins to run is not to be included;

(2)

The last day of the period is to be included, unless it is a nonbusiness day (e.g., Saturday, Sunday, or Federal holiday), in which event the period runs until the end of the next business day; and

(3)

When the time prescribed or allowed is 7 days or less, intermediate Saturdays, Sundays, Federal holidays, and other nonbusiness days are excluded from the computation.

(f)

Extensions of time.

(1)

The Board may extend the time for filing or serving any document except a notice of appeal.

(2)

A request to the Board for an extension of time must be filed within the time originally allowed for filing.

(3)

For good cause the Board may grant an extension of time on its own initiative.

(g)

Retention of documents. All documents received in evidence at a hearing or submitted for the record in any proceeding before the Board will be retained with the official record of the proceeding. The Board, in its discretion, may permit the withdrawal of original documents while a case is pending or after a decision becomes final upon conditions as required by the Board.

Notes, amendments, and revision history

Amendments

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2411, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[36 FR 7186, Apr. 15, 1971, as amended at 88 FR 5793, Jan. 30, 2023; 90 FR 2411, Jan. 10, 2025]

§4.311. Briefs on appeal.

43 C.F.R. § 4.311

(a)

The appellant may file an opening brief within 30 days after receiving the notice of docketing. The appellant must serve copies of the opening brief upon all interested parties or counsel and file a certificate with the Board showing service upon the named parties. Opposing parties or counsel will have 30 days from receiving the appellant's brief to file answer briefs, copies of which must be served upon the appellant or counsel and all other interested parties. A certificate showing service of the answer brief upon all parties or counsel must be attached to the answer filed with the Board.

(b)

The appellant may reply to an answering brief within 15 days from its receipt. A certificate showing service of the reply brief upon all parties or counsel must be attached to the reply filed with the Board. Except by special permission of the Board, no other briefs will be allowed on appeal.

(c)

BIA is considered an interested party in any proceeding before the Board. The Board may request that BIA submit a brief in any case before the Board.

(d)

An original only of each document should be filed with the Board. Documents should not be bound along the side.

(e)

The Board may also specify a date on or before which a brief is due. Unless expedited briefing has been granted, such date may not be less than the appropriate period of time established in this section.

Notes, amendments, and revision history

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.312. Board decisions.

43 C.F.R. § 4.312

(a)

Decisions of the Board will be made in writing and will set forth findings of fact and conclusions of law. The decision may adopt, modify, reverse, or set aside any proposed finding, conclusion, or order of an administrative law judge, Indian probate judge, or BIA official. Distribution of decisions must be made by the Board to all parties concerned. Unless otherwise stated in the decision, rulings by the Board are final for the Department and must be given immediate effect.

(b)

The Board may issue an order affirming, without opinion, a decision or order of an administrative law judge, Indian probate judge, or BIA official if the Board determines that: the result reached was correct; any errors in the decision or order under review were harmless or nonmaterial; and either the issues on appeal are squarely controlled by existing Board or Federal court precedent and do not involve the application of precedent to a novel factual situation, or the factual and legal issues raised on appeal are not so substantial that the case warrants the issuance of a written opinion by the Board. An order affirming without opinion under this paragraph will cite the Board's delegated authority and this paragraph; and state, without further explanation or reasoning, that the result of the decision or order under review is affirmed without opinion. Such an order approves the result reached but does not necessarily imply approval of all the reasoning of the decision or order under review.

(c)

Nothing in paragraph (a) or (b) of this section limits the Board's authority to summarily dismiss an appeal or to summarily adopt, modify, reverse, or set aside a decision or order under review.

(d)

If the Board does not issue a decision in a case within 36 months after the notice of appeal is received by the Board and the decision or order of an administrative law judge, Indian probate judge, or BIA official being appealed is not in effect, the appellant may move for the Board to issue an order dismissing the case without an opinion by the Board on the merits and making the decision or order being appealed final for the Department. In consolidated appeals, the 36-month period will begin after the last notice of appeal is received by the Board. If each appellant in a case, including any consolidated appeals, submits or joins a written motion for dismissal under this paragraph, the Board will issue an order dismissing the case without an opinion by the Board. The Board's order, issued under authority of this paragraph, will make the decision or order being appealed final for the Department. The date of the Board's order is the date of finality of the decision or order being appealed for the purpose of judicial review.

Notes, amendments, and revision history

Amendments

[90 FR 2411, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[90 FR 2411, Jan. 10, 2025]

§4.313. Amicus curiae; intervention; joinder motions.

43 C.F.R. § 4.313

(a)

Any interested person or Indian tribe desiring to intervene, to join other parties, to appear as amicus curiae, or to obtain an order in an appeal before the Board must apply in writing to the Board stating the grounds for the action sought. The Board may grant the permission or relief requested for specified purposes and subject to limitations it established. This section will be liberally construed.

(b)

Motions to intervene, to appear as amicus curiae, to join additional parties, or to obtain an order in an appeal pending before the Board must be served in the same manner as appeal briefs.

Notes, amendments, and revision history

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.314. Effect of decision pending appeal and exhaustion of administrative remedies.

43 C.F.R. § 4.314

(a)

Except as otherwise provided by applicable statute or regulation, the provisions of 43 CFR 4.21 and this section govern the effect of a decision pending appeal and exhaustion of administrative remedies.

(b)

A decision of an administrative law judge, Indian probate judge, or BIA official will not be effective during the time in which an interested party may file a notice of appeal, and the timely filing of a notice of appeal will suspend the effect of the decision appealed from pending the Board's decision on appeal, unless by order of the Board the decision, or any part of it, is made immediately effective.

(c)

No further appeal will lie within the Department from a decision of the Board.

(d)

The filing of a petition for reconsideration is not required to exhaust administrative remedies.

Notes, amendments, and revision history

Amendments

[90 FR 2412, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[90 FR 2412, Jan. 10, 2025]

§4.315. Reconsideration of a Board decision.

43 C.F.R. § 4.315

(a)

Reconsideration of a decision of the Board will be granted only in extraordinary circumstances. Any party to the decision may petition for reconsideration. The petition must be filed with the Board within 30 days from the date of the decision and must contain a detailed statement of the reasons why reconsideration should be granted.

(b)

A party may file only one petition for reconsideration.

(c)

The filing of a petition will not stay the effect of any decision or order and will not affect the finality of any decision or order for purposes of judicial review, unless so ordered by the Board.

(d)

A petition for reconsideration based solely on an argument that the case should not have been affirmed without opinion under § 4.312(b) is not permitted.

Notes, amendments, and revision history

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

§4.316. Remands from courts.

43 C.F.R. § 4.316

Whenever any matter is remanded from any Federal court to the Board for further proceedings, the Board will remand the matter to an administrative law judge, an Indian probate judge, or BIA. In the alternative, to the extent the court's directive and time limitations permit, the parties will be allowed an opportunity to submit to the Board a report recommending procedures for it to follow to comply with the court's order. The Board will enter special orders governing matters on remand.

Notes, amendments, and revision history

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.317. Standards of conduct.

43 C.F.R. § 4.317

(a)

Inquiries about cases. Except for ex parte communications that are prohibited under 43 CFR 4.27, all inquiries by a party to a matter pending before the Board should be directed to the Board's clerk, and all inquiries by a non-party to a matter pending before the Board should be directed to the chief administrative judge of the Board or the administrative judge assigned the matter.

(b)

Disqualification. An administrative judge may withdraw from a case in accordance with standards found in the recognized canons of judicial ethics if the judge deems this action appropriate. If, before a decision of the Board, a party files an affidavit of personal bias or disqualification with substantiating facts, and the administrative judge concerned does not withdraw, the OHA Director will determine the matter of disqualification.

Notes, amendments, and revision history

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

§4.318. Scope of review.

43 C.F.R. § 4.318

An appeal will be limited to those issues that were before the administrative law judge or Indian probate judge upon the petition for rehearing or reopening, or regarding added or omitted property or purchase of interests in an estate, or before the BIA official on review. However, except as specifically limited in this part or in title 25 of the Code of Federal Regulations, the Board will not be limited in its scope of review and may exercise the inherent authority of the Secretary to correct a manifest injustice or error where appropriate.

Notes, amendments, and revision history

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]

Source

Source: 70 FR 11825, Mar. 9, 2005, unless otherwise noted.

Authority

Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 372-74, 410; Pub. L. 99-264, 100 Stat. 61, as amended.

Authority

Authority: 5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[70 FR 11825, Mar. 9, 2005, as amended at 90 FR 2412, Jan. 10, 2025]