Grace Henzler v. Ken Salazar

393 F. App'x 457

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2010
• Docket: 09-35597
• Status: Unpublished

Opinion

MEMORANDUM *

Grace Henzler and other heirs of Dick George (“Henzler”) appeal the district court’s summary judgment in favor of the Secretary of the Interior. Based on its detailed review of the record, the district court found that “the Plaintiffs have failed to present credible evidence raising a factual issue related to due process and the 1930 rejection of George’s allotment application. The record establishes that the minimum requirements outlined in Pence v. Kleppe were met at the time the GLO closed George’s file.” We agree. Accordingly, we affirm.

This Court defers to an agency’s reasonable interpretation of its regulations. Martin v. Occupational Safety & Health Review Comm’n, 499 U.S. 144, 150, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991). Under its reasonable interpretation of 43 C.F.R. pt. 4, the Interior Board of Land Appeals generally does not have authority to overrule a decision that was approved by an Assistant Secretary. Blue Star, Inc., 41 I.B.L.A. 333, 335 (1979). The Secretary is required, however, to provide procedural due process to qualifying Alaska Native Allotment Applicants. Pence v. Kleppe, 529 F.2d 135, 142 (9th Cir.1976). In cases involving a colorable claim that an applicant was denied procedural due process, the IBLA can and has overruled decisions even though approved by an Assistant Secretary. See, e.g., Heirs of Alexander Williams, 121 I.B.L.A. 224 (1991); Ellen Frank, 124 I.B.L.A. 349 (1992). By failing to present credible evidence raising a factual issue related to due process, Henzler failed to establish a colorable claim that Dick George was denied procedural due process.

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.