43 C.F.R. §§ 4.1380–4.1387

§4.1380. Scope.

43 C.F.R. § 4.1380

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.

Notes, amendments, and revision history

Amendments

[67 FR 61512, Oct. 1, 2002]

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[67 FR 61512, Oct. 1, 2002]

§4.1381. Who may file; when to file; where to file.

43 C.F.R. § 4.1381

(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 DCHD 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, DCHD may use a dispute resolution proceeding, if the parties agree to such proceeding, before the procedures set forth in §§ 4.1383 through 4.1387.

Notes, amendments, and revision history

Amendments

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§4.1382. Contents of request for review; response to request; amendment of request.

43 C.F.R. § 4.1382

(a)

The request for review shall include:

(1)

A copy of the decision of OSM;

(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;

(4)

A request for specific relief; and

(5)

Any other relevant information.

(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.

Notes, amendments, and revision history

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.1383. Hearing.

43 C.F.R. § 4.1383

(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.

Notes, amendments, and revision history

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.1384. Burdens of proof.

43 C.F.R. § 4.1384

(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.

Notes, amendments, and revision history

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.1385. Time for initial decision.

43 C.F.R. § 4.1385

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).

Notes, amendments, and revision history

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

§4.1386. Petition for temporary relief from decision; appeals from decisions granting or denying temporary relief.

43 C.F.R. § 4.1386

(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 DCHD.

(c)

The petition for temporary relief shall include:

(1)

A statement of the specific relief requested—

(2)

A detailed statement of why temporary relief should be granted, including—

(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;

(3)

A statement whether the petitioner requests an evidentiary hearing.

(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.

(g)

The administrative law judge may only grant temporary relief if:

(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;

(2)

The petitioner has demonstrated a substantial likelihood of prevailing on the merits; and

(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.

Notes, amendments, and revision history

Amendments

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.

Amendments

[59 FR 54363, Oct. 28, 1994, as amended at 67 FR 4368, Jan. 30, 2002; 88 FR 5796, Jan. 30, 2023]

§4.1387. Petition for discretionary review of initial decisions.

43 C.F.R. § 4.1387

(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.

Notes, amendments, and revision history

Source

Source: 59 FR 54363, Oct. 28, 1994, unless otherwise noted.

Authority

Authority: 30 U.S.C. 1256, 1260, 1261, 1264, 1268, 1271, 1272, 1275, 1293; 5 U.S.C. 301.

Source

Source: 43 FR 34386, Aug. 3, 1978, unless otherwise noted.

Authority

Authority: 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.

Source

Source: 36 FR 7186, Apr. 15, 1971, unless otherwise noted.