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5 U.S.C. 301, 503-504; 25 U.S.C. 9, 372-74, 410, 2201 et seq.; 43 U.S.C. 1201, 1457; Pub. L. 99-264, 100 Stat. 61, as amended.
36 FR 7186, Apr. 15, 1971, unless otherwise noted.
80 FR 48459, Aug. 13, 2015, unless otherwise noted.
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Subscribe to: 43 CFR Part 4 Subpart K - Docketing, Intervention, Prehearing Conferences, and Summary Decision
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Within 5 days after petitioner files its election of hearing under 25 CFR 83.38(a), the actions required by this section must be taken.
(a) DCHD must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a recommended decision; and
(3) Issue a docketing notice that informs the parties of the docket number and the ALJ assigned to the case.
(b) The ALJ assigned under paragraph (a)(2) of this section must issue a notice setting the time, place, and method for conducting an initial prehearing conference under § 4.1022(a). This notice may be combined with the docketing notice under paragraph (a)(3) of this section.
(a) General. A person may file a motion for intervention within 30 days after OFA issues the notice of the election of hearing under 25 CFR 83.39(a)(1).
(b) Content of the motion. The motion for intervention must contain the following:
(1) A statement setting forth the interest of the person and, if the person seeks intervention under paragraph (d) of this section, a showing of why that interest may be adversely affected by the final determination of the Assistant Secretary under 25 CFR 83.43;
(2) An explanation of the person's position with respect to the issues of law and issues of material fact raised in the election of hearing in no more than five pages; and
(3) A list of the witnesses and exhibits the person intends to present at the hearing, other than solely for impeachment purposes, including:
(i) For each witness listed, his or her name, address, telephone number, and qualifications and a brief narrative summary of his or her expected testimony; and
(ii) For each exhibit listed, a statement specifying where the exhibit is located in the administrative record reviewed by OFA.
(c) Timing of response to a motion. Any response to a motion for intervention must be filed by a party within 7 days after service of the motion.
(d) Intervention of right. The ALJ will grant intervention where the person has an interest that may be adversely affected by the Assistant Secretary's final determination under 25 CFR 83.43.
(e) Permissive intervention. If paragraph (d) of this section does not apply, the ALJ will consider the following in determining whether intervention is appropriate:
(1) The nature of the issues;
(2) The adequacy of representation of the person's interest which is provided by the existing parties to the proceeding; and
(3) The ability of the person to present relevant evidence and argument.
(f) How an intervenor may participate.
(1) A person granted leave to intervene under paragraph (d) of this section may participate as a full party or in a capacity less than that of a full party.
(2) If the intervenor wishes to participate in a limited capacity or if the intervenor is granted leave to intervene under paragraph (e) of this section, the extent and the terms of the participation will be determined by the ALJ.
(3) An intervenor may not raise issues of law or issues of material fact beyond those raised in the election of hearing under 25 CFR 83.38(a)(1).
(a) Initial prehearing conference. The ALJ will conduct an initial prehearing conference with the parties at the time specified in the docketing notice under § 4.1020, within 55 days after issuance of the docketing notice.
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material fact and exclude issues that do not qualify for review as factual, material, and disputed;
(ii) To discuss the evidence on which each party intends to rely at the hearing; and
(iii) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and authenticity of documents;
(iii) To consider requests that the ALJ take official notice of public records or other matters;
(iv) To discuss pending or anticipated motions, if any; and
(v) To consider any other matters that may aid in the disposition of the case.
(b) Other conferences. The ALJ may direct the parties to attend one or more other prehearing conferences, if consistent with the need to complete the hearing process within 180 days. Any party may by motion request a conference.
(c) Notice. The ALJ must give the parties reasonable notice of the time and place of any conference.
(d) Method. A conference will ordinarily be held by telephone, unless the ALJ orders otherwise.
(e) Representatives' preparation and authority. Each party's representative must be fully prepared during the prehearing conference for a discussion of all procedural and substantive issues properly raised. The representative must be authorized to commit the party that he or she represents respecting those issues.
(f) Parties' meeting. Before the initial prehearing conference, the parties' representatives must make a good faith effort:
(1) To meet in person, by telephone, or by other appropriate means; and
(2) To reach agreement on the schedule of remaining steps in the hearing process.
(g) Failure to attend. Unless the ALJ orders otherwise, a party that fails to attend or participate in a conference, after being served with reasonable notice of its time and place, waives all objections to any agreements reached in the conference and to any consequent orders or rulings.
(h) Scope. During a conference, the ALJ may dispose of any procedural matters related to the case.
(i) Order. Within 3 days after the conclusion of each conference, the ALJ must issue an order that recites any agreements reached at the conference and any rulings made by the ALJ during or as a result of the conference.
(a) Motion for recommended summary decision or partial recommended summary decision. A party may move for a recommended summary decision, identifying each issue on which summary decision is sought. The ALJ may issue a recommended summary decision if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a recommended decision as a matter of law. The ALJ should state on the record the reasons for granting or denying the motion.
(b) Time to file a motion. Except as otherwise ordered by the ALJ, a party may file a motion for recommended summary decision on all or part of the proceeding at any time after DCHD issues a docketing notice under § 4.1020.
(c) Procedures —
(1) Supporting factual positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(i) Citing to particular parts of materials in the hearing process record, including affidavits or declarations, stipulations (including those made for purposes of the motion only), or other materials; or
(ii) Showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection that a fact is not supported by admissible evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials not cited. The ALJ need consider only the cited materials, but the ALJ may consider other materials in the hearing process record.
(4) Affidavits or declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.
(d) When facts are unavailable to the nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the ALJ may:
(1) Defer considering the motion or deny it;
(2) Allow time to obtain affidavits or declarations or, under extraordinary circumstances, to take discovery; or
(3) Issue any other appropriate order.
(e) Failing to properly support or address a fact. If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by paragraph (c) of this section, the ALJ may:
(1) Give an opportunity to properly support or address the fact;
(2) Consider the fact undisputed for purposes of the motion;
(3) Issue a recommended summary decision if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or
(4) Issue any other appropriate order.
(f) Issuing a recommended summary decision independent of the motion. After giving notice and a reasonable time to respond, the ALJ may:
(1) Issue a recommended summary decision for a nonmovant;
(2) Grant a motion for recommended summary decision on grounds not raised by a party; or
(3) Consider issuing a recommended summary decision on his or her own after identifying for the parties material facts that may not be genuinely in dispute.
(g) Failing to grant all the requested relief. If the ALJ does not grant all the relief requested by the motion, the ALJ may enter an order stating any material fact that is not genuinely in dispute and treating the fact as established in the case.