United States Department of the Interior OFFICE OF H E A R I N G S A N D APPEALS

Interior Board of Land Appeals N . Street, Suite 300

Arlington, Virginia 22203

703-235-3750 703-235-8349 (fax)

February 25,

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ESTATE OF DONALD D. HUMRICH ) Residential Occupancy Lease

) Decision Affirmed;

) Motion to Dismiss Denied as Moot; ) Petition for Stay Denied as Moot

ORDER

The Estate of Donald D. (Estate), through Bonnie Standridge, executor, has appealed from and petitioned for a stay of the effect of a September 30, 2010, decision of the Field Manager, Yuma (Arizona) Field Office, Colorado River District, Bureau of Land Management (BLM), rejecting Occupancy Lease CAAZCA 14192 for a parcel of public land ("Parcel 55") in a residential community known as "Harvey's Fishing Hole," along the Colorado River, near Blythe, California.

The Estate has failed to show any error in BLM's decision. For that reason, we affirm the decision and deny as moot (1) BLM's motion to dismiss the appeal on the basis that Standridge has not demonstrated that she is authorized, under 43 C.F.R. § 1.3, to practice before the Board on behalf of the Estate, and (2) the Estate's petition for a stay.

Background

Harvey's Fishing Hole encompasses a 27.82-acre tract of public lands currently described as lot 12 of sec. 9, T. 9 S., R. 22 E., San Bernardino Meridian, Imperial County, California. Based on a claim that the tract was privately-owned, it was subdivided in 1956, creating 95 residential lots of varying sizes, which were sold and developed, and two additional lots, which were set aside as a community park and a community well. However, lengthy Federal litigation resulted in a final determination that the 27.82-acre tract was not privately, but publicly, owned. See United States v. Harvey, 661 F.2d 767 (9th Cir. 1981), denied, 459 U.S. 833

In Harvey, the court of appeals affirmed a judgment by the district court ejecting 162 individuals from Fishing Hole and awarding the United States the rental

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Rather than evict the residents, however, BLM decided, in its discretion, to issue residential occupancy leases to those residents, pursuant to section 302(b) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 § 1732(b) (2006), and its implementing regulations, 43 C.F.R. Part 2920, in order to allow the residents to amortize their existing financial investments in the parcels. In 1983, BLM first issued such a lease for Parcel 55, consisting of

acres of public land, to Howell D. and Pauline E. husband and wife,2

who in 1985, with BLM's approval, assigned the lease to Donald D. and Margaret E. Humrich, husband and wife, of Garden Grove, California. The lease expressly provided that "[a]fter July 1, 1988, the lessee agrees not to assign the lease nor the improvements in any way, including, but not limited to, rental, sublease, sale, mortgage, bequest, or devise, provided that if a joint occupancy for any reason is terminated, the authorized officer will honor the remaining term of the lease by the remaining lessee."

On June 30, 1988, BLM approved an assignment of the lease from the Humrichs to themselves and their two sons, Eugene D., and Gary L. Humrich, (hereinafter, Lessees). BLM informed the Humrichs that "to facilitate the gradual phasing out of the residency, you are required to relinquish your lease when you can no longer use it personally." See Letter to the Lessees, dated May 22, 1989, at 2.

On July immediately following the expiration of the 10-year lease, BLM offered, and Lessees subsequendy executed, a new Lease for a term of 1 year, subject to extension on a year-to-year basis, at BLM's discretion. The lease again contained the prohibition against assignment of the lease or improvements by any means, including bequest or devise, but provided that it would remain in effect until the conclusion of its existing primary or extended term, so long as one of the named Lessees was living. BLM approved successive 1-year extensions of the lease through June 30, 2009, each subject to the assignment prohibition.3

value of the lands for use and occupancy dating from 1960. The basis for the ruling was the conclusion that, in the course of a southerly shift of the Colorado River, the lands had accreted to public lands north of the River, and were thus public lands. See 661 F.2d at 769, 772-73.

The Holcombs held the requisite financial interest in improvements on the land, consisting of a small house and carport.

During that time, various lessees of Fishing Hole (incorporated as Sportsman's Paradise, Inc. proposed an exchange of specific private lands for

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By decision dated April 2009, BLM offered to extend the lease for a 3-year term, running from July 1, 2009, to June 30, 2012, under the same terms and conditions. BLM sent that decision to the Lessees at their last address of record, which had been changed in 2001 to an address in Mena, Arkansas, and Standridge signed a certified mail return receipt for the decision on April 23, 2009.4

On May 2009, BLM received two money orders, dated May 6, 2009, bearing the handwritten signature of "Donald Humrich," in payment of the annual rent, as well as processing and monitoring fees, for the first year of the lease extension. Despite receipt of payment, BLM did not issue a decision approving the 3-year extension of the lease. Therefore, the lease expired by its terms on June 30, 2009.

Following lease expiration, BLM issued a decision dated August 6, 2009, offering a new 3-year lease to the Lessees. BLM required the Lessees to submit the attached new lease, executed by all of the Lessees, within days of receipt of the August 6 decision. It acknowledged receipt of the May 2009, rental payment, noting that it would consider the payment to be a rental deposit, pending a long overdue reappraisal of the fair market rental value of Parcel 55, which would be applied to the reappraised rent for the current and/or future years. It also required the Lessees to submit, along with the executed lease, a Federal Form W-9 (Request for Taxpayer Identification Number and Certification), disclosing the taxpayer identification numbers of each of the Lessees.5

Standridge responded on September 8, 2009, stating that all the Lessees had died, and that she was "the sole heir at law for Don's estate." She further stated that she was not aware that a bequest or devise of the lease was precluded by the terms of

the entire 27.82-acre community (hereinafter, Land Exchange). That proposal is apparently still pending before BLM. See (MASS) Serial Register Page, dated Jan. 19, 2011 43672-F1).

A Conversation Record in the case file, dated June 12, 2001, states that a BLM employee took a telephone call on June 2001, from "Donald Sister" requesting a change of address for the lease to the address to which BLM directed the decision.

The provisions of 31 § 7701(c)(1) (2006) direct each Federal agency to require any person doing business with the agency to provide the agency with that person's taxpayer identification number. A person seeking a license, which encompasses a lease, is considered to be doing business with the Federal agency that administers the license. See 31 U.S.C. § 7701(c)(2) (2006).

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the lease, but that, in accordance with the wishes of Donald Humrich, she was attempting to maintain the lease, pending consummation of the SPI Land Exchange. However, she did not identify the dates of death of any of the Lessees, offer any supporting evidence for her assertions, or return the lease form.6

By decision dated July 27, 2010, BLM notified the Lessees, at their record address, that the lease was subject to rejection for failure to submit the documents required by its August 6, 2009, decision. It also provided the Lessees a final opportunity to submit the executed lease and W-9 Forms, copies of which were included, within days of receipt of the July decision. BLM concluded that, in accordance with 43 C.F.R. § 2920.5-3, "failure to submit the requested information within the timeframe allowed may subject your lease to rejection and trespass resolution."7

In his September 30, 2010 decision, the Field Manager finally rejected the lease for failure to provide/submit the required information. Standridge timely filed a single-page document stating that she was the executor of the Estate and requesting a stay. She asserted that Donald Humrich had instructed her to continue to pay rental for the lease and to maintain the property through the Estate. She reiterated her claim that she was unaware of the assignment prohibition. BLM opposes any stay.

Discussion

The Estate does not provide any basis for overturning BLM's decision. Research has disclosed that Donald D. Humrich was the last surviving Lessee. He died on November 14, 2004, having been predeceased by Margaret E. Humrich (November 22, 2000), Eugene D. Humrich (July 27, 2000), and Gary L. Humrich (October 1998). See (last visited on Feb. 3, The terms of the lease issued in 1993, as extended, prevented the Lessees from transferring their interest in the lease or the improvements during their lifetimes or upon their deaths by bequest or devise. However, the lease was to remain in

On June 21, 2010, BLM received an unsigned, undated letter enclosing the "lease payment" for the lease "for 2010/2011." There was no evidence of the source of payment, which was in the form of a bank check, signed by a bank official, with the handwritten notation Donald D. Humrich." BLM returned the payment on July 13, 2010.

A certified mail return receipt card shows receipt of the decision on Aug. 2, 2010, at the Lessees' last address of record. The card is executed by Jerry Burns, whose identity is not disclosed in the record.

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existence during its term, as long as one of the named Lessees was living, thereby essentially providing a life estate in the existing lease for the benefit of the surviving Lessee.

By decision dated June 9, 2004, BLM offered a 1-year extension of the lease from July 1, 2004, through June 30, 2005. On June 16, 2004, BLM received the rental and fees for the extension. The residential occupancy lease, as extended, essentially expired upon the death of Donald Humrich, the last surviving Lessee, on November 14, 2004. Although BLM continued to grant lease extensions to the Lessees, the last of which expired on June 30, 2009, it did so only because no one disclosed to BLM the relevant information concerning the death of the Lessees. While Donald Humrich may have desired that Standridge continue to make rental payments to maintain the lease following his death until completion of the SPI Land Exchange, continued extension of the lease following the death of all Lessees did not comport with the terms of the lease, and even though Standridge claims not to have any knowledge about the assignment prohibition, her lack of knowledge is irrelevant to the applicability of that provision.

Absent definite knowledge about the status of the Lessees, BLM properly offered a new 3-year lease to the Lessees, and properly rejected the lease properly rescinded its offer to lease) upon the failure of the Lessees to provide/submit the information required for a renewal. As BLM explained in its September 30, 2010, decision:

of record were notified that we cannot guarantee an exchange will be consummated. Sale of the parcel is not an option. BLM must retain the parcel in public ownership or trade it for riparian and threatened/endangered species habitat on the Colorado River, in accordance with the land use plan If Harvey's is retained in public ownership, private residential occupancy of public land will not be continued.

While BLM offered residential occupancy of Parcel 55 to the Lessees for many years, BLM has no statutory, regulatory, or contractual obligation to offer such occupancy to estates or heirs of the Lessees.

Apparently, the Field Manager was referring to the Yuma Field Office Resource Management Plan (RMP), which identified certain public lands as available for disposal, including lot of sec. 9 Fishing Hole). See Record of Decision and Approved RMP, dated January 2010, at 2-176 to 2-177, Map 2-16 (Lands and Realty/Minerals), Appendix I (Lands Identified for Disposal) at

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Accordingly, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 C.F.R. § 4.1, the decision appealed from is affirmed, and the motion to dismiss and petition for a stay are denied as moot.

I concur: