(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.