4.1138—Use of depositions.
At the hearing, any part or all of a deposition, so far as admissible, may be used against any party who was present or represented at the taking of the deposition, or who had reasonable notice thereof, in accordance with any of the following provisions—
(a)
Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of a deponent as a witness;
(b)
The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent or a person designated to testify on behalf of a public or private corporation, partnership, or association or governmental agency which is a party may be used by an adverse party for any purpose; or
(c)
The deposition of a witness, whether or not a party, may be used by a party for any purpose if the administrative law judge finds that—
(2)
The witness is at a distance greater than 100 miles from the place of hearing, or is outside the United States, unless it appears that the absence of the witness was procured by the party offering the deposition;
(4)
The party offering the deposition has been unable to procure the attendance of the witness by subpoena; or
(5)
Such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally at the hearing, to allow the deposition to be used.
Sections 4.1380 through 4.1387 govern the procedures for review of a written decision issued by OSM under 30 CFR 773.28 on a challenge to a listing or finding of ownership or control.
[67 FR 61512, Oct. 1, 2002]
(a)
Any person who receives a written decision issued by OSM under 30 CFR 773.28 on a challenge to an ownership or control listing or finding may file a request for review with the Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 801 N. Quincy Street, Suite 300, Arlington, Virginia 22203 (telephone 703-235-3800) within 30 days of service of the decision.
(b)
Failure to file a request for review within 30 days of service of the decision constitutes a waiver of review of the decision. An untimely request for review shall be dismissed.
(c)
Where appropriate under the Administrative Dispute Resolution Act, 5 U.S.C. §§ 571-583, the Hearings Division may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1383 through 4.1387.
[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]
(2)
A statement of the alleged errors in the decision and the facts that entitle the person requesting review to administrative relief;
(3)
A statement whether the person requesting review wishes an evidentiary hearing or waives the opportunity for such a hearing;
(b)
Within 20 days of service of the request for review in accordance with 43 CFR 4.1109, OSM and all interested parties shall file an answer to the request for review or a motion in response to the request or a statement that no answer or motion will be filed. OSM or any interested party may request an evidentiary hearing even if the person requesting review has waived the opportunity for a hearing.
(c)
The person filing the request for review may amend it once as a matter of right before the response in accordance with paragraph (b) of this section is required to be filed. After the period for filing such a response, the person may file a motion for leave to amend the request with the administrative law judge. If the administrative law judge grants a motion for leave to amend, he shall provide OSM and any other party that filed a response in accordance with paragraph (b) not less than 10 days to file an amended response.
(a)
If a hearing is requested, the administrative law judge shall convene the hearing within 90 days of receipt of responses under § 4.1382(b). The 90-day deadline for convening the hearing may be waived for a definite time by the written agreement of all parties, filed with the administrative law judge, or may be extended by the administrative law judge, in response to a motion setting forth good cause to do so, if no other party is prejudiced by the extension.
(b)
The administrative law judge shall give notice of the hearing at least 10 days in advance of the date of the hearing.
(a)
OSM shall have the burden of going forward to present a prima facie case of the validity of the decision.
(b)
The person filing the request for review shall have the ultimate burden of persuasion by a preponderance of the evidence that the decision is in error.
The administrative law judge shall issue an initial decision within 30 days of the date the record of the hearing is closed, or, if no hearing is held, within 30 days of the deadline for filing responses under § 4.1382(b).
(a)
Any party may file a petition for temporary relief from the decision of OSM in conjunction with the filing of the request for review or at any time before an initial decision is issued by the administrative law judge.
(b)
The petition for temporary relief shall be filed with the administrative law judge to whom the request for review has been assigned. If none has been assigned, the petition shall be filed with the Hearings Division, Office of Hearings and Appeals, U.S. Department of the Interior, 801 North Quincy Street, Arlington, Virginia 22203 (Telephone 703-235-3800).
(i)
A showing that there is a substantial likelihood that petitioner will prevail on the merits, and
(ii)
A showing that granting the relief requested will not adversely affect the public health or safety or cause significant, imminent environmental harm to land, air or water resources;
(d)
Any party may file a response to the petition no later than 5 days after it was served and may request a hearing even if the petitioner has not done so.
(e)
The administrative law judge may hold a hearing on any issue raised by the petition within 10 days of the filing of responses to the petition, and shall do so if a hearing is requested by any party.
(f)
The administrative law judge shall issue an order or decision granting or denying the petition for temporary relief within 5 days of the date of a hearing on the petition or, if no hearing is held, of service of the responses to the petition on all parties.
(1)
All parties to the proceeding have been notified of the petition and have had an opportunity to respond and a hearing has been held if requested;
(3)
Temporary relief will not adversely affect public health or safety or cause significant, imminent environmental harm to land, air or water resources.
(h)
Any party may file an appeal of an order or decision granting or denying temporary relief with the Board within 30 days of receipt of the order or decision or, in the alternative, may seek judicial review within 30 days in accordance with section 526(a) of the Act, 30 U.S.C. 1276(a). If an appeal is filed with the Board, the Board shall issue an expedited briefing schedule and shall decide the appeal expeditiously.
[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002]
(a)
Any party may file a petition for discretionary review of an initial decision of an administrative law judge issued under § 4.1385 with the Board within 30 days of receipt of the decision. An untimely petition shall be dismissed.
(b)
The petition for discretionary review shall set forth specifically the alleged errors in the initial decision, with supporting argument, and shall attach a copy of the decision.
(c)
Any party may file a response to the petition for discretionary review within 30 days of its service.
(d)
The Board shall issue a decision denying the petition or granting the petition and deciding the merits within 60 days of the deadline for filing responses.