Current through September 17, 2024
Section 163-1-008 - Regulations and procedures governing declaratory orders008.01 These rules and regulations governing declaratory orders issued by the Game and Parks Commission are adopted under authority of the Administrative Procedure Act, sections 84-901 through 84-920, R.R.S. 1999. These rules and regulations are effective following enactment by the Game and Parks Commission, approval by the Attorney General and Governor and when five days have elapsed since filing with the Secretary of State. 008.01A Scope of this Chapter. This Chapter pertains solely to the procedures to be used by any person or entity seeking issuance of a declaratory order by the Commission.008.01B Related Regulations In addition to this Chapter, related regulations pertaining to administrative procedures before the Commission are: 163 NAC Chapter 1, Procedures for Negotiated Rulemaking, 163 NAC Chapter 1, Petitioning for Rulemaking, and 163 NAC Chapter 1, Rules of Practice and Procedure for Hearings in Contested Cases Before the Commission.008.02 Definitions As Used In This Chapter:008.02A Agency shall mean the Game and Parks Commission, its Director and the staff.008.02B Commission shall mean the eight Commissioners as defined in 81-801, R.R.S. 2004.008.02C Commission Director shall mean the secretary as defined in 37-106, R.R.S. 2004.008.02D Argument shall mean the oral statement of the petitioner or any other party which explains their view of the facts and issue to be decided, the law applicable to the question presented, and the reasoning that connects the facts and law.008.02E Contested case shall mean a proceeding before the Agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after hearing before the Agency.008.02F Declaratory order proceeding shall mean a proceeding initiated by a petitioner seeking issuance of a binding order by the Commission as to the applicability of specified circumstances to a statute, rule, regulation, or order within the primary jurisdiction of the Commission.008.02G Hearing officer shall mean the person or persons conducting a declaratory order proceeding pursuant to the Administrative Procedure Act, whether designated as the presiding officer, administrative law judge, or some other title.008.02H Intervenor(s) shall mean persons, political subdivisions, corporations, organizations, or other entities who have or claim to have any interest, legal right, duty, privilege, or immunity, which would be directly affected by the Commission's issuance of a binding declaratory order.008.02I Necessary party shall mean a person who or an entity which has a specific interest in the applicability of the statute, rule, regulation, or order, as distinguished from a general interest such as may be the concern of the public at large. A necessary party is one which is or would be adversely affected in a legally cognizable way by the uncertainty sought to be resolved.008.02J Parties shall mean persons, political subdivisions, corporations, organizations, or other entities subject to the jurisdiction of the Commission who are involved in a declaratory order proceeding according to the procedures set forth in this chapter.008.02K Petition shall mean the document filed in accordance with Section 008.03 of this chapter to initiate a declaratory order proceeding.008.02L Petitioner(s) shall mean a party or parties who have filed a petition with the Agency seeking issuance of a declaratory order.008.02M Pleading shall mean any written petition, answer, or motion used in any declaratory order proceeding before the Agency as set forth in this chapter.008.03 Petition For Declaratory Order008.03A Generally. A request for a declaratory order must be made by a petition that meets the requirements of Section 008.03.008.03B Who May File. Any person may petition the Commission for issuance of a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order which is within the primary jurisdiction of the Commission.008.03C When Orders Appropriate. A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the Commission. "Applicability" refers to the appropriateness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include: 008.03C1 A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.008.03C2 A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred.008.03C3 A declaratory order is not a mechanism for review or appeal of a decision made by the Commission in a contested case.008.03C4 A declaratory order may not be requested to obtain a declaration by the Commission that a statute or regulation is unconstitutional or that a regulation of the Commission is invalid.008.03C5 A declaratory order may not be issued by the Commission that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.008.03D Form of Petition A petition for declaratory order shall be in the form of either a pleading or letter which shall contain each of the following: 008.03D1 A caption, which shall include: 008.03D1a The venue: BEFORE THE GAME AND PARKS COMMISSION, STATE OF NEBRASKA;008.03D1b A heading specifying the subject matter and the name of the petitioner; and008.03D1c The name of the pleading: PETITION FOR DECLARATORY ORDER.008.03D2 The statements required in subsection 008.03E of this chapter.008.03D3 The signature of the petitioner, or when represented by an attorney, the signature of the attorney.008.03D4 The name and address of the petitioner, and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.008.03D5 Size and Paper. The petition shall be made on white, letter-sized ( 8-1/2"x 11") paper.008.03D6 Print. The petition shall be legibly typewritten, photostatically reproduced, printed, or handwritten. If handwritten, the petition must be written in ink. Only one side of a page shall contain any writing.008.03D7 Attachments. Any documents attached to a petition shall be securely fastened to the pleading and shall meet the requirements of 008.03D5 and 008.03D6 and, when possible, be reproduced on 8-1/2"x 11" paper or placed in an 8-1/2"x 11" envelope and clearly marked as an attachment to the petition.008.03E Contents of Petition. To be considered, the petition shall include the following: 008.03E1 The name and address of the petitioner;008.03E2 The name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the statute, rule, regulation, or order or who may be adversely affected by the issue sought to be resolved by the petitioner.008.03E3 The statute, rule, regulation, or order upon which the petitioner seeks issuance of a declaratory order;008.03E4 A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;008.03E5 All propositions of law or contentions asserted by the petitioner;008.03E6 A demand for the relief to which the petitioner alleges entitlement. The petition shall state the petitioner's position as to how the Commission should rule and why the Commission should rule in the manner requested; and008.03E7 Any documents pertinent to the petition that the petitioner wishes to be considered by the Commission.008.03F The petition shall be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, then the petition shall be subscribed and verified by a duly authorized agent of the petitioning entity.008.03G Sample Petition. The petitioner may use the sample form of a petition which is attached as "Appendix A" and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of "Appendix A" so long as the requirements of subsections 008.03D, 008.03E, and 008.03F of this chapter are satisfied.
008.03H Written Consents. The petitioner shall also attach to the petition any written consents obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.008.04 Submission And Service Of Declaratory Order Petition 008.04A The original petition for declaratory order shall be filed with the Commission by mail to the Agency or in person during the Agency's normal business hours of 8:00 a.m. to 5:00 p.m., Monday through Friday at P. O. Box 30370, 2200 North 33rd Street, Lincoln, NE 68503-0370.008.04B The petition shall be deemed as filed when it is actually received by the Agency. The Agency shall date stamp all petitions upon receipt.008.04C At the same time the petition is filed with the Agency, the petitioner shall serve a copy of the petition, by certified mail, return receipt requested, on all necessary parties, including all persons, political subdivisions, corporations, organizations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the Commission.008.05 Disposition Of The Petition 008.05A Generally. Upon the filing of a petition, the Director may consider the petition, or delegate the matter to a designated hearing officer, to consider the petition and recommend a decision to the Commission. In reviewing the petition, the Director or designated hearing officer may, in their discretion, do one or more of the following: 008.05A1 Require that additional information be submitted before the petition will be further considered;008.05A2 Require a petitioner to provide notice to persons or entities who may be necessary parties and other persons that a request for a declaratory order has been filed with the Agency;008.05A3 Recommend to the Commission that it schedule a date, time, and location at which the petitioner and any other parties to the proceeding may make an oral presentation on the petition;008.05A4 Consider the petition and any attachments without oral presentation and recommend a decision to the Commission.008.05B Within thirty (30) days after the petition is filed, the Commission shall, in writing: 008.05B1 Issue an order declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or008.05B2 Agree to issue an order by a specified time declaring the applicability of the statute, regulation, rule, or order in question to the specified circumstances; or008.05B3 Set the matter for specified proceedings as set forth in subsection 008.05A of this Chapter; or008.05B4 Decline to issue a declaratory ruling, stating the reasons for the Commission's decision.008.05C Not withstanding Section 008.05B of this rule, the Commission may determine at any time that it will not issue a declaratory order if issuance of an order under the circumstances would be contrary to any provisions of Section 008.09 of this Chapter. The Commission shall notify the petitioner and, if applicable, any intervenor or necessary party in writing when the Commission determines not to issue a declaratory order.008.06 Intervention In Declaratory Order Proceeding 008.06A Intervention by any person or entity in a declaratory order proceeding shall be allowed when the following requirements are met: 008.06A1 A petition for intervention must be submitted in writing to the Commission or its designated hearing officer. Copies must be mailed to all parties to the proceeding.008.06A2 The contents of the petition must be as specified in 008.06B.008.06A3 The Commission or designated hearing officer must determine that the interests of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.008.06B Contents of Petition. The petition for intervention shall be submitted to the Commission or designated hearing officer, in writing, on 8 1/2" x 11" white paper, and shall include each of the following: 008.06B1 The statute, regulation, rule, or order that may apply to or effect the person, property, entity, or facts at issue in the matter;008.06B2 A statement of facts sufficient to show the intervenor's interest;008.06B3 A statement of facts which demonstrate that the intervenor's legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the intervenor may intervene pursuant to a provision of law;008.06B4 All propositions of law or contentions asserted by the intervenor; and008.06B5 A statement of the specific relief requested by the intervenor.008.06C The Commission or designated hearing officer may, at their discretion, invite any person or entity to file a petition for intervention.008.06D The Commission or designated hearing officer shall grant a petition for intervention if the requirements of Section 008.06A and Section 008.06B are satisfied.008.06E The Commission or designated hearing officer shall deny a petition for intervention upon determining that the interests of justice or the orderly and prompt conduct of the proceedings would be impaired by allowing the intervention.008.06F The Commission's or its designated hearing officer's decision to grant or deny a petition for intervention shall be in writing and served upon all parties.008.07 Declaratory Order Proceedings 008.07A Oral Argument, When. Oral argument shall be had only on specific order of the Commission. A petitioner, intervenor, necessary party, or the Director or Agency staff, may submit a motion for oral argument to the Commission. If opportunity for oral argument is granted, then argument shall be scheduled to be conducted not more than forty-five (45) days after filing of the petition. Petitioner and all other parties or, when represented, their attorneys, shall be served by the Agency with a notice of the date, time, and location for oral argument. The Agency shall provide each of the parties with notice of the proceeding not less than seven (7) days in advance of the scheduled date. Service shall be made by certified mail, return receipt requested.008.07B Oral Argument, Procedure. Oral argument will be made before a hearing officer or before any representative of the Agency who is authorized to render or to recommend a decision to the Commission. The hearing officer or Agency representative shall be in control of the proceeding and shall: 008.07B1 Identify the proceeding and introduce himself or herself and identify each party for the record;008.07B2 Hear the oral argument of the petitioner, intervenor, or necessary parties;008.07B3 Close the proceedings.008.07C At the declaratory order proceeding, the Director or Agency staff shall have the right to present oral argument.008.07D The hearing officer or representative may impose reasonable time limits on the amount of time allocated to each party for oral argument.008.07E The parties and Director or Agency staff may file briefs in support of their respective positions. The hearing officer may fix the time and order of filing briefs and may direct that briefs be submitted prior to the date of oral argument.008.07F The oral argument may be conducted either in person or by telephone conference call.008.08 Issuance Of Declaratory Order 008.08A The Commission shall issue its declaratory order within sixty (60) days of the date on which the petition was filed.008.08B The declaratory order shall be in writing and shall include the following: 008.08B1 The names of all parties to the proceeding upon which the order is based;008.08B2 The facts upon which the order is based;008.08B3 The statute, regulation, rule, or order at issue in the matter;008.08B4 The Commission's conclusion as to the applicability of the statute, regulation, rule, or order to the facts;008.08B5 The Commission's conclusion as to the legal effect or result of applying the statute, regulation, rule, or order to the facts; and008.08B6 The reasons relied upon by the Commission to support its conclusions.008.08C A copy of the declaratory order shall be served upon each party by certified mail, return receipt requested.008.08D Effect of Declaratory Order. A declaratory order shall have the same status and binding effect as any other order issued in a contested case.008.08E No Response within 60 Days. If the Commission has not issued a declaratory order within sixty (60) days after the petition has been filed, then the petition shall be deemed to have been denied by the Commission.008.09 Circumstances Under Which Commission Will Not Issue Declaratory Orders 008.09A Grounds upon which the Commission shall refuse to issue a declaratory order include, but are not limited to, the following: 008.09A1 The petition requests a declaratory order on a matter that is outside the scope of authority of the Commission;008.09A2 The petition requests review or appeal of a decision made by the Commission in a contested case;008.09A3 The petition requests a declaratory order on the effect of past conduct;008.09A4 An investigation for purposes of a formal adjudication, a contested case, or a petition to issue, amend, or repeal regulations is pending before the Commission involving the petitioner on substantially the same or similar facts or issues raised in the petition;008.09A5 The petition seeks a declaration that a statute or rule or regulation is unconstitutional or invalid;008.09A6 The issue raised in the petition has been settled by a change in circumstances or other means so as to render moot the need for a declaratory order;008.09A7 An order would substantially prejudice the rights of a person or entity who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding;008.09A8 An order would not resolve the controversy or uncertainty; or008.09A9 The question posed or facts presented are insufficiently specific, overly broad, or are otherwise inappropriate as a basis upon which to decide the matter.008.09B Grounds upon which the Commission may determine to refuse to issue a declaratory order include, but are not limited to, the following: 008.09B1 Refusal is necessary to assure adequate allocation of Agency resources are available for issuing rulings on petitions raising questions of greater urgency or significance;008.09B2 The question presented is of such complexity that the Commission has had insufficient opportunity or resources to develop a fully matured ruling;008.09B3 The petitioner fails to submit any additional information requested by the Commission, its Director or other designated hearing officer or submits such information after the date established.008.10 Appeal Of Declaratory Order Appeal of Declaratory Order is subject to review in the manner provided for review of contested cases by the Administrative Procedure Act, section 84-901 - 84-920, R.R.S. 1999. Specific procedures for appeal are set forth in section 84-917, R.R.S. 1999.
163 Neb. Admin. Code, ch. 1, § 008