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OAH 16-2000-20687-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF NATURAL
RESOURCES
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In the Matter of the Appeal
of the Restriction on Operation Citation Issued to John Joseph Lapping |
NOTICE OF
PREHEARING CONFERENCE
AND NOTICE OF
HEARING |
PLEASE
BE ADVISED that a prehearing conference will be held by telephone conference call
on Thursday, August 13, 2009, beginning at 9:30 a.m. and continuing as long as
necessary.
Participating
in the prehearing conference telephone call will be Manuel J. Cervantes, the
undersigned Administrative Law Judge, whose office is located at 600 North
Robert Street, PO Box 64620, St. Paul, Minnesota 55164-0620, and whose
telephone number is 651-361-7900; Conservation Officer Colleen Adam who issued
the citation and whose telephone number I have, and the appellant herein, John
Joseph Lapping, whose telephone number is [redacted per OAH Online Archive
Policy].
The
Judge will place the call, using these telephone numbers. If yours is not a good telephone number to
use at that time or if it is necessary to change the time, please contact the
Judge immediately at the telephone number above, and advise the Judge of any
scheduling issue(s).
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 the appeal cannot be resolved during the
telephone call itself, 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 which is being appealed was issued pursuant to Minn. Stat. § 84.773,
subd. 1. Minn. Stat. § 84.775,
subd. 2 provides 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 Minn. R. 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 at
their cost.
Unless
the Administrative Law Judge decides differently, the only participants in the
prehearing conference telephone call will be Officer Colleen Adam and John
Joseph Lapping. If a hearing is
necessary, Officer Colleen Adam and John Joseph Lapping 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. R. 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
Minn. R. 1400.8601 for the procedures regarding subpoenas.
If a
Hearing is held, once it is completed the Administrative Law Judge will issue a
recommended decision. A copy will be
sent to each party and to the Commissioner.
After allowing at least five days to pass, 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 (section 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 the Administrative Law
Judge at 651-361-7900 or Pat Watts, Policy/Legal Analyst, Minnesota Department
of Natural Resources,
Dated: July 21, 2009
s/Manuel
J. Cervantes
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MANUEL J. CERVANTES Administrative Law Judge |