Grace Henzler; v. Ken Salazar, in his official capacity as Secretary of the Interior;

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GRACE HENZLER; et al.,
Plaintiffs - Appellants,
v.
KEN SALAZAR, in his official capacity
as Secretary of the Interior; et al.,
Defendants - Appellees.
No. 09-35597
D.C. No. 3:07-cv-00220-TMB
MEMORANDUM *
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
FILED
AUG 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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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