OAH
3-2000-20685-2
STATE
OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE MINNESOTA DEPARTMENT OF NATURAL RESOURCES
|
In
the Matter of the Appeal of the Invasive Species/Infested Waters Civil
Citation Issued to Jeffrey Dean Marquardt |
NOTICE
OF PREHEARING CONFERENCE AND NOTICE OF HEARING |
PLEASE BE ADVISED that a prehearing
conference will be held by telephone conference call on August 11, 2009,
beginning at 2:00 p.m. and continuing as long as necessary.
Participating in the prehearing
conference telephone call will be Kathleen D. Sheehy, the undersigned
Administrative Law Judge (ALJ), whose mailing address is
The purpose of the prehearing
conference telephone call is to determine the nature of the dispute that caused
the appeal, and to determine the best way to resolve it. The telephone call is expected to last about
fifteen (15) minutes, and no more than thirty (30) minutes. If all parties agree, the Administrative Law
Judge may resolve the appeal based on the record created during the prehearing
telephone conference. If not, then the
Judge will set a time for a hearing. The
Judge will also decide whether the hearing shall be held by telephone or in
person.
The citation that is being appealed
was issued pursuant to Minn. Stat. § 84D.13,
subd. 4 (2008) (failure to drain water before leaving designated infested
waters). The statute further provides in
§ 84D.13, subd. 8, that if a person requests a hearing in order to appeal a
citation, the hearing shall be held pursuant to procedures set forth in section
116.072, subd. 6. That statute provides
an expedited administrative hearing process, and refers to Minnesota Rules,
parts 1400.8510 to 1400.8612. These are
the rules which will govern the conduct of this appeal. Copies of the above-referenced statutes and
rules may be obtained from
It is not necessary that a person
have an attorney in order to participate in this case. They may, however, choose to be represented
by legal counsel or any other representative of their choice.
Unless the Administrative Law Judge
decides differently, the only participants in the prehearing conference
telephone call will be Officer Mike Lee and Mr. Marquardt. If a
hearing is necessary, they will be the only two "parties." Any other person who desires to become a
party to this case must submit a timely petition to intervene pursuant to Minn.
Rules pt. 1400.8570. This petition must
show how that person's legal rights, duties and privileges may be determined or
affected by the decision in this case.
The petition must also set forth the grounds and purposes for which
intervention is sought, and shall indicate petitioner's statutory right to intervene
if one should exist. If the petition is
granted, and the petitioner is given full party privileges, then the petitioner
will have the right to present evidence and witnesses, and will also have the
right to question witnesses presented by the other parties. Even without filing a petition to intervene,
any person may offer testimony or other evidence which is relevant to the case,
but they are subject to being questioned by the parties. Generally, non-parties are not allowed to
question witnesses provided by the parties.
If a hearing is held, the
Administrative Law Judge and the Commissioner can base their decision only on
factual information or evidence that is part of the hearing record. Persons participating in the hearing should
have available all documents, records, witnesses and any other evidence they
need to present their position.
Subpoenas may be available to compel the attendance of witnesses or
other production of documents. See
Minnesota Rules pt. 1400.8601 for the procedures regarding subpoenas.
When the hearing is completed, the
Administrative Law Judge will issue a recommended decision. A copy will be sent to each party and to the Commissioner. After waiting for at least five days, the Commissioner
will issue a final order. During the
five-day period, the parties may file comments with the Commissioner regarding
the recommended decision.
Failure to participate in the
prehearing conference telephone call or failure to appear at the hearing will
result in the citation being upheld and the fine will have to be paid within
thirty (30) days of the issuance of the Commissioner’s final decision, with no
further opportunities for administrative appeal.
It is likely that an appeal hearing
will cost the taxpayers more than the amount of the fine imposed by the
citation. Appeal hearings should be
limited to cases where there is a legitimate, good faith disagreement about the
facts or the law. The statute (§ 116.072,
subd. 6(d)) provides that if the Administrative Law Judge finds that a hearing
was requested solely for purposes of delay or that the hearing request was
frivolous, the costs of holding the hearing may be added to the amount of the
fine.
Questions concerning settlement of
this matter may be directed to Pat Watts, Policy/Legal Analyst, Minnesota
Department of Natural Resources,
|
Dated this |
23rd |
day of |
July |
2009. |
|
s/Kathleen
D. Sheehy |
|
KATHLEEN
D. SHEEHY |
|
Administrative
Law Judge |