The regulations in this subpart set forth rules applicable to appeals before the Interior Board of Land Appeals. General rules in subparts A and B of this part are applicable to the proceedings before the Board unless they are inconsistent with these rules. Wherever there is any conflict between the general rules in subpart B and the rules in this subpart, the rules in this subpart will govern. In addition, the OHA Standing Orders apply to appeals before the Board and are available on the Department of the Interior OHA website, at https://www.doi.gov/oha.

In addition to the definitions in subpart A of this part, the following definitions apply to this subpart:

Administrative law judge (ALJ) means an administrative law judge appointed to the Departmental Cases Hearings Division.

Adversely affected means that a person or entity has a legally cognizable interest, and the decision on appeal has caused or is substantially likely to cause injury to that interest. A legally cognizable interest may include, but is not limited to, a property or economic interest in the affected lands or resources, or a cultural, recreational, or aesthetic interest in the affected lands or resources.

Appealable decision is a final bureau or office decision as described at § 4.1(b)(4) of this part that authorizes, denies, prohibits, or requires some action that adversely affects a person or entity having or seeking some right, title, or interest in lands or resources.

Appellant means a person or entity appealing a decision to the Board.

Board means the Interior Board of Land Appeals in OHA.

Office or officer includes an administrative law judge or the Board where the context so requires.

Party to the case is a person or entity that has taken action that is the subject of the decision on appeal or is the object of that decision, or has otherwise participated in the process leading to the decision under appeal, e.g., by filing a mining claim or application for use of public lands, by commenting on an environmental document, or by filing a protest to a proposed action.

(a) Standing. Any person or entity that is a party to the case and is adversely affected by an appealable decision of a bureau or office or an ALJ has the right to appeal to the Board, except as provided in paragraph (b) of this section.

(b) Decisions not subject to appeal. An appeal cannot be filed:

(1) Where a statute or regulation provides a different review process or makes a decision final for the Department; or

(2) Where a decision has been made or approved by the Secretary, Deputy Secretary, or an Assistant Secretary unless otherwise provided by statute or regulation.

(c) Land selections under the Alaska Native Claims Settlement Act. For appealable decisions rendered by Departmental officials relating to land selections under the Alaska Native Claims Settlement Act, as amended, any party who claims a property interest in land affected by the decision, an agency of the Federal Government or an appropriate regional corporation has a right to appeal to the Board.

(a) What to file with the notice of appeal. A person or entity that wishes to appeal to the Board must file a notice that the person or entity wishes to appeal. When a person or entity files a notice of appeal, they must also file the following documents:

(1) A copy of the decision being appealed;

(2) A statement of facts showing that the person or entity seeking to appeal is a party to the case who is adversely affected by the decision and thereby meets the standing requirements set forth at § 4.402; and

(3) A statement and any corroborating documentation providing the date when the person or entity filing the appeal received notice of the decision to show that the appeal has been timely filed in accordance with paragraph (c) of this section.

(b) Where to file and serve the notice of appeal. Except as otherwise provided by statute or regulation:

(1) The notice of appeal must be filed with the Board as specified in § 4.407(a); and

(2) The notice of appeal must be concurrently served as specified at § 4.407(b).

(c) When to file and serve the notice of appeal—(1) Except as otherwise provided by statute or regulation, a person or entity must file the notice of appeal no later than 30 days after the date of receiving notice of the decision.

(2) Notwithstanding the provisions of other regulations, a person or entity receives notice of a decision at the earliest of the following dates:

(i) The date of delivery by mail or delivery service as indicated on a U.S. Postal Service or delivery service tracking report or, if no tracking report exists, then, absent contrary evidence, 7 days after the date of the postmark on the envelope containing the decision as long as the envelope was properly addressed and had proper postage prepaid;

(ii) The date the bureau or office electronically transmits the decision,, or a notice that the decision is available on a public website, to the person or entity at an electronic address provided by the person or entity, and the bureau or office does not receive electronic notification that the transmission was unsuccessful;

(iii) The date the bureau or office notifies the public in an online news release that the decision is available on a public website;

(iv) The date of the decision's publication in the Federal Register; or

(v) If none of these dates apply, the date the person or entity receives actual notice of the decision.

(3) Filing is accomplished as provided at § 4.407.

(4) No extension of time will be granted for filing the notice of appeal. If a notice of appeal is filed with the Board after the last day for filing a timely notice of appeal, then the notice of appeal will not be considered, and the Board will dismiss the appeal for lack of jurisdiction.

Once an appeal has been filed, the issuing bureau or office cannot modify, rescind, or supersede the decision on appeal without first seeking a remand of the decision from the Board. If the decision is stayed during the appeal, the bureau or office may only make decisions related to the subject of the decision on appeal if those decisions are functionally independent of the decision on appeal.

(a) Effect of decision pending appeal. Except as otherwise provided by law:

(1) A decision will not be effective during the time in which a person or entity adversely affected may file a notice of appeal; however, when the public interest requires or to protect trust resources, the Board may provide that a decision, or any part of a decision, will be effective immediately.

(2) A decision will become effective on the day after the expiration of the time during which a person or entity adversely affected may file a notice of appeal unless a petition for a stay pending appeal is filed at the same time as a timely notice of appeal.

(3) A decision, or that portion of a decision, for which a stay is sought but not granted will become effective immediately after the Board denies or partially denies the petition for a stay or fails to act on the petition within the time specified in paragraph (b)(8) of this section.

(b) Petitions for Stay—(1) Who may file a petition for a stay. Only an appellant who properly files an appeal may petition to stay the effect of a decision during an appeal.

(2) When to file a petition for stay. An appellant must file a petition for stay at the same time the appellant files a notice of appeal.

(3) Filing and service. An appellant seeking a stay must file a petition for a stay with the Board and serve the petition on the bureau or office that made the decision being appealed, the proper Office of the Solicitor, and each party named in the decision. Filing and service must be made as specified in § 4.407 of this subpart.

(4) Stay criteria. Except as otherwise provided by law, an appellant seeking a stay must demonstrate that issuance of a stay is warranted based upon the following criteria:

(i) Irreparable harm. The appellant will likely be irreparably harmed by implementation of the decision pending resolution of the appeal, and the harm will be avoided by granting the stay;

(ii) Balance of harms. The irreparable harm to the appellant absent a stay exceeds the harm to the United States and other parties from a stay being granted; and

(iii) Likelihood of success. The appellant is likely to succeed on the merits.

(5) Burden of proof. An appellant seeking a stay has the burden to demonstrate that a stay should be granted in whole or in part, under all three criteria set forth at paragraph (b)(4) of this section.

(6) Responses to a petition for a stay. Any party may file a response to a petition for a stay within 14 days after service; failure to file a response will not be construed as an admission that the Board should grant the petition.

(7) Replies. No replies to a response will be accepted.

(8) Ruling on a petition for stay. The Board will grant or deny a petition for a stay, in whole or in part, within 45 days of the expiration of the time for filing a notice of appeal. The Board will deny any petition for a stay that is not filed at the same time the appellant filed its notice of appeal. If the Board fails to act on a petition for a stay within 45 days of the expiration of the time for filing a notice of appeal, the petition will be deemed denied.

(9) Effect of consent or lack of opposition. The Board may summarily grant a petition for a stay, in whole or in part, without considering the criteria listed in paragraph (b)(4) of this section if all parties to the appeal consent to the stay or file responses to the petition affirmatively stating no opposition to the petition.

(a) Filing the record. The bureau or office must promptly file the record with the Board and concurrently serve a copy of the record on all parties to the appeal no later than 60 days after being served with the notice of appeal unless the bureau or office seeks and the Board grants a different filing deadline.

(b) Contents. All documents and materials that the deciding officer directly or indirectly considered in reaching a final decision must be included in the record.

(c) Format. Unless otherwise ordered by the Board upon motion by the bureau or office, the record must be formatted as follows:

(1) The record must be in digital or electronic form;

(2) The record must include an index of all documents;

(3) The pages of each document must be sequentially numbered; and

(4) If possible, the text of all documents must be electronically searchable.

(d) Completion of record. The bureau or office may file and serve documents inadvertently omitted from the record either by stipulation of the parties or by order of the Board upon motion.

(a) Filing—(1) Generally. A document filed with the Board must be delivered to the Board as specified in this subpart and the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information found on the Department of the Interior OHA website, at https://www.doi.gov/oha.

(2) Methods of filing—(i) Electronic. A document may be filed electronically 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 when the Board has allowed non-electronic filing for good cause.

(ii) Non-electronic. Any document filed non-electronically must be delivered to the Board at the address specified in the OHA Standing Orders on Contact Information.

(3) Timeliness—(i) Electronic. A document that is filed electronically is deemed timely filed if it is filed by 11:59 p.m. Eastern Time on the date the document is due, under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. A document that is not filed electronically is deemed timely filed if, on or before the last day for filing, it is mailed to the Board by first-class United States mail, or other class of mail that is at least as expeditious, postage prepaid; or it is dispatched to a third-party commercial courier for delivery to the Board within 3 days. The date of mailing or dispatch must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document for filing. A document not received within 7 days of the filing deadline is presumed untimely, but the presumption may be overcome by the documentation establishing the date of mailing or dispatch.

(b) Service—(1) Generally. Any person or entity who files a document in an appeal must also serve the document under the terms specified in this section and in the OHA Standing Orders on Electronic Transmission and the OHA Standing Orders on Contact Information.

(2) Person or entity to serve. A person or entity that files any document under this subpart must serve a copy of it concurrently as follows:

(i) For a notice of appeal, on the office of the officer who made the decision; each person or entity named in the decision; the appropriate official of the Office of the Solicitor as set forth at paragraph (b)(2)(iii) of this section; and if the decision involved a mining claim on national forest land, then on all parties who participated in the proceeding below.

(ii) For all other documents, on the appropriate official of the Office of the Solicitor as set forth at paragraph (b)(2)(iii) of this section and on each party to the appeal (including intervenors).

(iii) Parties must serve the Office of the Solicitor as provided in the OHA Standing Orders on Contact Information until a particular attorney of the Office of the Solicitor files and serves a document in the appeal, after which that attorney must be served.

(3) Service on represented parties. Service on a party known to be represented by an attorney or other designated representative must be made on the representative.

(4) Service address. Every person or entity who files a document in connection with an appeal must provide the physical or electronic address that the person or entity intends to use for service in the appeal. A person or entity seeking to receive service by electronic mail must consent to electronic service as required at paragraph (b)(6)(i) of this section. If a person or entity has not consented to electronic service, then anyone serving a document on that person or entity must use the mailing address in the person's or entity's most recent filing or, if there has not been any filing, the mailing address of the person or entity as provided by the bureau or office where the appeal originated.

(5) Address changes. A party whose mailing or email address changes while an appeal is pending must promptly file and serve a written notice of the change. The notice must specify the appeal or appeals to which the notice applies using the applicable docket number or docket numbers when available.

(6) Manner of service. A document may be served electronically or non-electronically as follows:

(i) Electronic. Service may be made electronically on the Office of the Solicitor and the bureau or office whose decision is being appealed under the terms specified in the OHA Standing Orders on Electronic Transmission. Service may be made electronically on all other persons or entities who have consented to electronic service in writing under the terms specified in the OHA Standing Orders on Electronic Transmission.

(ii) Non-electronic. Service may be made non-electronically by United States mail or commercial courier for delivery within 3 days.

(7) Certificate of service. At the conclusion of any document that a party must serve under this subpart, the party or the party's representative must sign a written statement that:

(i) Certifies service has been or will be made in accordance with the applicable rules; and

(ii) Specifies the date and manner of service.

(8) Completion of service—(i) Electronic. Service by electronic means is complete on sending or as otherwise directed by the OHA Standing Orders on Electronic Transmission, unless the party making service is notified that the document was not received by the party served.

(ii) Non-electronic. Service by mail or by commercial courier is complete on mailing or delivery to the carrier. The date of mailing or delivery must be documented by a postmark date, acceptance scan, receipt, or similar written acknowledgement from the carrier delivering the document.

(c) Computing deadlines. When a party may or must act within a specified time period after being served, and the document is not served electronically on the party or delivered to the party on the date stated in the proof of service, 3 days are added after the period would otherwise expire.

(d) Issuance. The Board will issue notices, orders, and decisions to the party's electronic mail address unless the party requests otherwise. If an electronic mail address is not provided by the party in a document filed in the appeal or in a document filed in the proceedings below, then the Board will issue notices, orders, and decisions by U.S. mail, personal delivery, or commercial courier using the party's record address as provided under § 4.22(b) or, if not provided, the party's last known mailing address.

(a) Documents subject to formatting requirements. The formatting requirements of this section apply to any notice, motion, brief, or other document filed in an appeal subject to this subpart, whether filed electronically or in paper form. These formatting requirements do not apply to an exhibit, an attachment, or the administrative record.

(b) General requirements. Each motion, brief, or other document must be filed separately. In addition, all documents must:

(1) Be captioned with a docket number and a concise title that clearly conveys what is being filed;

(2) Use 12-point font size or larger throughout the document;

(3) Be double-spaced except for the case caption, headings, long quotations, and footnotes, which may be single-spaced;

(4) Have margins of at least 1 inch on all four sides;

(5) Have pages that are numbered sequentially;

(6) Be signed by the party or the party's representative;

(7) Be 8 1/2 by 11 inches in size if filed in paper form, with print on just one side of the page and the document stapled or bound in the upper left-hand corner; and

(8) Be in electronic text-searchable portable document format (PDF) if filed electronically, maintaining original document formatting unless specified differently in the OHA Standing Orders on Electronic Transmission.

(c) Document elements excluded from page computations. Documents subject to page limitations may exclude from the number computation any cover page, table of contents, table of citations, signature blocks, certificates of service, indices, attachments, and exhibits.

(d) Consequences of non-compliance. The Board may decide not to consider any document that does not comply with the requirements in paragraphs (b) and (c) of this section.

(a) In general—(1) Form and content. Any motion filed with the Board must be in writing and state with particularity the relief sought and provide the reasons for the motion.

(2) Duty to confer. (i) Except as provided in paragraph (a)(2)(ii) of this section, before filing a motion, the moving party must make reasonable efforts to contact each party to determine whether agreement can be reached on the relief sought in the motion. The moving party must state in its motion:

(A) Whether any party it reached agrees to all or part of the motion; and

(B) What steps it took to contact any party it was unable to reach.

(ii) The duty to confer does not apply to a motion by an appellant to withdraw or voluntarily dismiss an appeal or an adversarial motion (for example, a motion to dismiss for lack of jurisdiction).

(3) Responses. Except as provided in paragraph (b)(4) of this section or a Board order, any party has 14 days after service of the motion to file a response.

(4) Replies. A party has 7 days from service of the response to file a reply. The reply may not exceed 10 pages and is limited to new issues or arguments raised in the response.

(b) Extensions of time. (1) Except as otherwise provided in this subpart, a party may seek additional time by filing with the Board a motion for an extension of time.

(2) A motion for an extension must be filed no later than the day before the date the document is due, absent extenuating circumstances.

(3) The party must support its motion for an extension of time by showing there is good cause to grant it.

(4) If a party opposes the motion for an extension of time, the party must file its response within 3 business days after service of the motion to file a response.

(5) A Board order granting or denying a motion for an extension will state when the document must be filed. If the Board does not act on a motion before the document is due, the document must be filed no later than 7 days after the original due date, unless the Board orders otherwise.

(c) Intervention—(1) How to intervene. A person or entity that wishes to intervene must file a motion to intervene within 60 days after the person or entity knew or should have known that the decision had been appealed. The person or entity filing a motion to intervene must serve the motion on all parties to the appeal.

(2) Who may file a motion to intervene. A person or entity may seek to intervene if they had a right to appeal the decision under these rules or would be adversely affected if the Board reversed, vacated, set aside, or modified the decision.

(3) Contents of a motion to intervene. The motion must identify how the proposed intervenor meets the eligibility requirements set forth at paragraph (c)(2) of this section and when the proposed intervenor learned of the appeal.

(4) The Board's action on a motion to intervene. The Board may grant the motion to intervene; grant the motion to intervene but limit the person's or entity's participation in the appeal; or deny the motion to intervene if the proposed intervenor fails to meet the requirements of this paragraph (c) or if the Board determines that granting the motion would prejudice the existing parties or unduly delay adjudication of the appeal. If the intervenor had a right to appeal the decision, the Board will limit participation to the issues raised by the other parties to the appeal, along with any additional limitations deemed necessary to avoid prejudice or undue delay. If the Board denies the motion to intervene, the Board may allow the person or entity to file a brief as amicus curiae. A person or entity granted full or limited intervenor status is a party to the appeal.

(d) Amicus curiae. (1) A person or entity may file a motion to file a brief as an amicus curiae. The motion must state the person's or entity's interest in the appeal and how their brief will contribute to resolving the issues on appeal.

(2) The Board may grant or deny the motion in its discretion.

(3) A person or entity seeking to participate as amicus curiae must serve its motion, and its brief if the motion is granted, on all parties to the appeal.

(4) A person or entity granted amicus curiae status is not a party to the appeal.

(e) Consolidation. The Board, either on a party's motion or at the Board's initiative, may consolidate two or more appeals when they involve common factual or legal issues.

(f) Suspension of consideration of appeal. Any party may file a motion to suspend consideration of a pending appeal. If granted, the Board will toll any remaining filing deadlines until a date specified in a Board notice or order. The Board may require the parties to file periodic status reports. The Board may lift the suspension and place an appeal in an active status upon motion by either party or at the Board's initiative.

(g) Evidentiary Hearing before an ALJ. (1) Any party may file a motion that the Board refer an appeal to an ALJ for a hearing. The motion must state:

(i) What specific issues of material fact require a hearing;

(ii) What evidence concerning these issues must be presented by oral testimony, or be subject to cross-examination;

(iii) What witnesses need to be examined; and

(iv) What documentary evidence requires explanation, if any.

(2) In response to a motion for hearing or on its own initiative, the Board may order a hearing before an ALJ if there are:

(i) Any disputed issues of material fact which, if proved, would alter the disposition of the appeal; or

(ii) Significant factual or legal issues remaining to be decided, and the record without a hearing would be insufficient for resolving them.

(3) If the Board orders a hearing, it must:

(i) Specify the issues of fact upon which the hearing is to be held; and

(ii) Request the ALJ to issue:

(A) Proposed findings of fact on the issues presented at the hearing;

(B) A recommended decision that includes findings of fact and conclusions of law; or

(C) A decision that will be final for the Department unless a notice of appeal is filed in accordance with § 4.403.

(4) The hearing will be conducted under the general rules in subpart C of this part. Unless the Board orders otherwise, the ALJ may consider other relevant issues and evidence identified after referral of the case for a hearing.

(h) Attorney substitution and withdrawal—(1) Attorney substitution—(i) Form and content. A party may substitute attorneys by filing and serving a notice of substitution that includes the pertinent contact information for the new attorney.

(ii) Effective date. The notice of substitution is effective upon filing.

(2) Attorney withdrawal—(i) Form and content. An attorney may request to withdraw from representing a party to an appeal without providing a substitute by filing a written motion to withdraw. The attorney must serve the motion on all parties and the attorney's client(s). The motion must contain the following:

(A) Pertinent contact information for the attorney's client(s);

(B) A statement explaining why the withdrawal will not unfairly prejudice the attorney's client(s); and

(C) A statement that the attorney has taken appropriate steps to protect the interests of the client(s) such as providing reasonable notice, allowing adequate time for the employment of another attorney, and surrendering files related to the appeal.

(ii) Effective date. A withdrawal is not effective unless the Board grants the motion to withdraw. The Board may condition or deny withdrawal to avoid prejudice to the client(s) and other parties.

(a) Applicability. Unless otherwise ordered by the Board, the provisions of this section govern the briefing of an appeal. A party is required to seek and obtain the Board's leave to exceed the page limits, extend the time periods, file a brief not expressly provided for in this section, or otherwise depart from the requirements of this section.

(b) Statement of reasons. (1) An appellant must file a statement of reasons supporting an appeal with the Board no later than 30 days after the record on appeal is filed with the Board.

(2) The statement of reasons may not exceed 30 pages, excluding exhibits, declarations, or other attachments.

(3) The statement of reasons must set forth with specificity all legal or factual errors alleged to have been made in the decision being appealed. However, where the bureau or office provided an opportunity for participation in its decision-making process, a party may raise on appeal only those issues:

(i) Raised to the bureau or office by anyone who participated in the decision-making process; or

(ii) That arose after the close of the opportunity for such participation.

(4) All arguments in support of the appeal must be set forth in the statement of reasons. An appellant may not incorporate by reference arguments made in other documents.

(c) Answer. (1) The bureau or office may file one answer responding to a statement of reasons within 60 days after service of the statement of reasons or, if an intervenor files a brief in support of an appellant, 60 days after service of an intervenor's brief filed under paragraph (d)(1) of this section.

(2) The answer may not exceed 30 pages, excluding exhibits, declarations, or other attachments.

(3) Failure to file an answer will not result in a default.

(d) Intervenor brief. Unless otherwise ordered by the Board, the following requirements apply to an intervenor brief:

(1) An intervenor in support of an appellant may file a brief within 14 days after service of the statement of reasons.

(2) An intervenor in support of the bureau or office may file a brief within 14 days after service of the answer.

(3) An intervenor's brief may not exceed 20 pages, excluding exhibits, declarations, or other attachments.

(e) Reply brief. (1) An appellant may file one reply brief responding to an answer within 21 days after service of the answer or, if an intervenor files a brief in support of the bureau or office, within 14 days of service of an intervenor's brief filed under paragraph (d)(2) of this section.

(2) The reply brief is limited to addressing new issues raised in the answer or intervenor's brief(s).

(3) The reply brief may not exceed 20 pages, excluding exhibits, declarations, or other attachments.

(f) Sur-reply. No sur-reply may be filed unless a party first files a motion demonstrating a compelling reason to file a sur-reply and the Board grants the motion.

(g) Attachments. A party may attach exhibits, declarations, or other documents with a brief. The Board will consider the attachments to the extent the Board finds them reliable and relevant to the issues on appeal.

(h) Notices of supplemental authority. If pertinent and significant authorities come to a party's attention after the party's brief has been filed, a party may promptly advise the Board by filing a notice (with service on all parties) setting forth the citations to the authorities. The notice must state the reasons for providing the supplemental authorities and may not exceed three pages. Any response to the notice must be filed and served within 7 days and may not exceed three pages.

The Board may impose appropriate sanctions on any person or entity that violates the regulations of this part, an order of the Board, or any other statute or regulation that governs the appeal.

(a) The sanction may include, after notice and opportunity for the person or entity to respond, dismissal of all or part of an appeal, denial of a motion, refusal to consider a filing, or the exclusion of evidence from consideration.

(b) Absent extenuating circumstances, the Board will dismiss an appeal if the appellant has failed to provide financial security when required by regulation or order; violated the regulations of this part repeatedly; or caused prejudice to another party because of a violation of an order or applicable regulation.

(a) Failure to file a statement of reasons. The Board may affirm without opinion a decision on appeal if the appellant has not filed a statement of reasons for the appeal within the time required in § 4.410(b) and has not otherwise included the reasons for appeal in its filings with the Board.

(b) Previous level of administrative review. Where the bureau or office has provided a level of administrative review before the appeal to the Board, or the appeal is from a decision of an ALJ, the Board may affirm without opinion the decision on appeal if the Board determines:

(1) The result reached was correct;

(2) Any errors in the decision were harmless or nonmaterial; and

(3) 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 appeal warrants the issuance of a written opinion by the Board.

(c) Order affirming without opinion. When the Board affirms without opinion a decision on appeal, it will issue an order citing this section, affirming the decision on appeal, and expressly adopting the decision on appeal. The Board's order will be the final decision for the Department.

(a) Scope of review. The Board has authority to review decisions on appeal as fully and finally as might the Secretary, subject to any limitations on its authority imposed by the Secretary. The Board may at any time before issuance of its decision raise or consider any matter that it deems material, whether or not raised by the parties. The Board may affirm, modify, vacate, set aside, or reverse any decision properly brought before it for review, and may remand the matter as may be just under the circumstances.

(b) Burden to show error. The party appealing a decision of a bureau, office, or ALJ has the burden to show that an error was made.

(c) Standards of review. Generally, the Board will exercise its review authority as follows:

(1) The Board will review the decision on appeal for error by applying the standards of review set forth in the Administrative Procedure Act, 5 U.S.C. 706(2).

(2) The Board will review questions of law de novo.

(3) The Board will not overturn a bureau or office decision on the basis of a harmless error.

(a) General procedures. Permission to file an interlocutory appeal is a two-step process, requiring a party to do both of the following:

(1) File an application in accordance with § 4.122(d) asking the ALJ to certify an ALJ order, in whole or in part, for interlocutory appeal; and

(2) Within 14 days of the ALJ's ruling on the application for certification, petition the Board in accordance with § 4.122(g) for permission to file an interlocutory appeal of the ALJ's order, in whole or in part.

(b) Permission from the Board. The Board will grant permission to file an interlocutory appeal under the following circumstances:

(1) The ALJ grants certification, and the Board agrees that the ALJ's interlocutory ruling involves a controlling question of law about which there are substantial grounds for a difference of opinion and that an immediate appeal will materially advance the completion of the proceeding; or

(2) The ALJ denies certification, and the Board determines that the ALJ abused their discretion in doing so.

(a) Procedural requirements. Any party may petition for reconsideration of a dispositive order or decision within 60 days after the date of the order or decision. The deadline to file a petition for reconsideration cannot be extended. The petition may include a request to stay the effectiveness of the order or decision. The petition may not exceed 15 pages. The Board will not accept a petition for reconsideration of a Board order affirming without opinion the decision on appeal under § 4.412.

(b) Substantive requirements. The Board will grant the petition only in extraordinary circumstances where sufficient reason exists and will deny a petition that merely repeats arguments made in the original appeal. The petitioner must establish that one of the following reasons exists:

(1) The Board misstated a material fact, resulting in an erroneous decision. The Board's findings concerning disputed material facts do not constitute a misstatement warranting reconsideration.

(2) Evidence exists that was not before the Board at the time it issued the final decision and that demonstrates error in the decision. The petitioner must submit the evidence with the petition and explain why the evidence was not provided to the Board during the course of the appeal.

(3) The Board's decision fails to cite and address a binding statute, regulation, or decision that would require a different outcome in the decision. Disagreement with the Board's interpretation or application of the law cited in the decision does not warrant reconsideration.

(c) Responses. Any other party to the original appeal may file a response to a petition for reconsideration within 21 days after service of the petition. The response may not exceed 15 pages.

(d) Status of decision while petition is pending. A petition for reconsideration will not stay the effectiveness or affect the finality of the Board's order or decision unless so ordered by the Board for good cause. If the Board stays the effectiveness of the order or decision, then finality is deferred until the Board rules on the petition.

(e) Petition Not Required for Exhaustion. A party does not need to file a petition for reconsideration to exhaust its administrative remedies.

The Board must decide an appeal of a BLM decision under 43 CFR 4190.1 and 5003.1(b) within 180 days after the notice of appeal was filed. The Board may issue an expedited briefing schedule to meet this deadline. If the Board does not rule on the appeal within 180 days after the notice of appeal was filed, BLM's decision will be deemed final for the Department.

Upon motion or on its own initiative after notice to the parties, the Board may suspend consideration or dismiss an appeal when the decision on appeal has been challenged in Federal court.

The Board may dispose of an appeal by an order or a decision. Dispositive orders resolve an appeal and are binding on the parties, but they are not precedential. Non-precedential orders may be cited, but the Board is not obligated to follow or distinguish them in future appeals except when cited for the purpose of establishing res judicata, estoppel, or the law of the case. Decisions are precedential. Unless superseded or overruled, decisions may be cited as binding precedent in other appeals.