Ala. Admin. Code r. 880-X-5A-.34

Current through Register Vol. 43, No. 1, October 31, 2024

Section 880-X-5A-.34 - Judicial Review

(1) Any party as defined in Rule 880-X-5A-.05 of Chapter 880-X-5 and who has participated in the administrative proceedings as an objector (appellent) shall have the right to appeal as approved in Paragraph (2) of this Rule, if --

(a) The applicant is aggrieved by the decision of the Commission in an administrative review proceeding conducted pursuant to Rule 880-X-5A-.31 of these rules and regulations.

(b) Either the State Regulatory Authority, DHA or the Commission fails to act within time limits specified in the Act or these regulations, whichever applies.

(2) Judicial review may be had by any party of the proceedings filing notice of appeal in the circuit court; provided said court shall not permit the appeal unless all administrative remedies have been exhausted by the appellant; provided further, where an appeal is taken from a cessation order issued pursuant to Section 25 of the Act and the hearing officer or Commission fails or refuses to stay the order pending a final determination on the merits, the appellant may apply to the circuit court for relief pursuant to Rule 65 of the Alabama Rules of Civil Procedures.

(3) Parties. All parties to the Administrative procedures shall be named parties in such appeal, and such appeal shall include the Director of the Alabama Surface Mining Commission as one of these parties.

(4) Notice. Notice of appeal to the circuit court shall be verified and shall state the grounds upon which relief is sought.

(5) Service. Service shall be made pursuant to the Alabama Rules of Civil Procedures.

(6) Record. The following applies to the record on appeal:

(a) Transmission of record. The State Regulatory Authority shall transmit within 30 days or such additional time as the court may allow to the circuit court the entire administrative record of the proceedings under review, including finding of fact and the decisions of the hearing officer or the Commission.

(b) Stipulations. Stipulations by the parties are allowed to shorten the proceedings. If any party unreasonably refuses to stipulate to limit the record, he may be assessed by the court for such additional costs as occasioned by the refusal. The court may require or permit subsequent corrections or addition to the record where needed.

(7) Determination by court. The cause shall be tried de-novo in the circuit court and shall be a preference case on the docket thereof. The court shall have jurisdiction to determine the reasonableness and lawfulness of the order of the State Regulatory Authority. Upon a finding by the court that the order is not reasonable or lawful, or not supported by the clear preponderance of the evidence, the cause shall be remanded to the State Regulatory Authority for further proceedings in accordance with the Act and these rules and regulations.

(8)

(a) Supersedeas bond. Upon application to the circuit court from an order of the Commission, the appellant may supersede any order of it by filing with the court it supersedeas bond in the amount determined by the court to be proper and necessary to avoid the likelihood of material damage.

(b) The bond shall be made payable to the respondent appellee.

(c) Such bond shall continue in force during an appeal to the Alabama Supreme Court and until final judgment as long as all the conditions of the bond have been complied with.

(d) No other supersedeas bond shall be given by the appellant unless the court hearing the appeal shall find that the amount of such supersedeas bond is either excessive or inadequate and shall order such bond reduced or increased accordingly.

(9) Further appeal. An appeal from the decision of the circuit court may be taken by the same procedure used in the civil cases pursuant to the Alabama Rules of Appellant Procedure.

Author:

Ala. Admin. Code r. 880-X-5A-.34

Statutory Authority:Code of Ala. 1975, §§ 9-16-71, 72, 73, 74, 75, 77, 78, 79, 88, 89, 93, 94, 96.