                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 26 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



GRACE HENZLER; et al.,                             No. 09-35597

              Plaintiffs - Appellants,             D.C. No. 3:07-cv-00220-TMB

  v.
                                                   MEMORANDUM *
KEN SALAZAR, in his official capacity
as Secretary of the Interior; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                         Argued and Submitted July 26, 2010
                                 Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       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


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

(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.




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