Administrative Rule 74:50:02 | South Dakota Legislature

Editor's Note: The Legislative Research Council constructed this section to maintain the intent of rules transferred from chapter 74:03:13 to chapter 74:50:02, effective July 1, 1996.

Rule 74:50:02:02 Petition to initiate contested case.

74:50:02:02. Petition to initiate contested case. A person contesting a recommendation of the department concerning a permit application or requesting an order from the board or secretary shall file a petition for a contested case hearing. The petition shall be filed with the department and shall contain the following:

(1) A statement of the petitioner's interest in the involved matter;

(2) A statement of the recommendation contested, if any, and the relief and decision requested from the board;

(3) A statement alleging the relevant facts and issues known to the petitioner, upon which the petitioner bases the contest or request to the board;

(4) A statement of the legal authority and jurisdiction under which the hearing would be held, if known;

(5) A reference to the particular statutes and rules involved, if known; and

(6) The signature of the petitioner or the petitioner's attorney.

The petitioner shall serve a copy of the petition upon all known persons affected by the petitioner's request who shall be considered parties to the proceeding.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:01, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-17, 1-26-27.

Rule 74:50:02:03 Initiation of contested case.

74:50:02:03. Initiation of contested case. The board or secretary may on its own motion request that any matter under its jurisdiction be scheduled for hearing. The department shall notice the parties and the public of any hearing requested on motion of the board and of the reasons for the hearing. The hearing shall follow the provisions of this chapter.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:02, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-17, 1-26-27.

Rule 74:50:02:04 Answer to petition to initiate contested case.

74:50:02:04. Answer to petition to initiate contested case. Within 30 days after the receipt of a petition an interested person shall serve a written answer on the petitioner, the department, and other parties of record. The answer shall respond to the allegations in the petition, assert any other relevant factors, and state the desired decision of the board or secretary. Failure to answer an allegation in a petition shall constitute an admission of that fact. Further pleadings by parties in response to an answer are not required unless ordered for purposes of clarification of the issues involved in the contested case.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:03, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-17, 1-26-27.

Rule 74:50:02:05 Intervention in contested case.

74:50:02:05. Intervention in contested case. A person who desires to intervene in a contested case proceeding shall file a petition that substantially conforms to the requirements of § 74:50:02:02. The petition shall be filed with the department and served upon all parties of record. Pleadings in response to an intervenor's petition shall not be made unless ordered for purposes of clarification of the issues involved in the contested case. The hearing chairman or secretary shall grant or deny the petition to intervene at the prehearing meeting.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:04, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-16, 1-26-17.

Rule 74:50:02:06 Initiation of enforcement hearing.

74:50:02:06. Initiation of enforcement hearing. The department shall initiate an enforcement hearing by filing a petition that substantially complies with the requirements of § 74:50:02:02. The department shall serve a notice of a contested case which complies with the provisions of SDCL 1-26 and a copy of the petition upon the alleged violator.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:05.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-16, 1-26-17.

Rule 74:50:02:07 Pleadings to be filed with department.

74:50:02:07. Pleadings to be filed with department. The original of any petition, motion, or other pleading shall be filed with the department. The person filing the pleading shall mail copies of it to the prehearing examiner, hearing examiner if applicable, and all parties of record.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:06, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-21.

Rule 74:50:02:08 Appointment of hearing chairman.

74:50:02:08. Appointment of hearing chairman. Upon the filing of a hearing before the board, the chair of the board shall appoint a member of the board to act as chair of the hearing. The chair of the hearing is responsible for all prehearing rulings, including motions to intervene, motions for a continuance, and any other motions necessary to ensure an orderly hearing process. A decision made by the chair of the hearing is a final decision of the board unless reversed by a majority of the board at the hearing on the matter. Notice of this appointment and of the date set for a prehearing conference shall be served on all parties by the department. Upon the filing of a petition for a hearing before the secretary, the secretary shall be responsible for all prehearing rulings and shall schedule a prehearing conference.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:07; July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-18, 1-26-19, 1-26-19.2.

Rule 74:50:02:09 Prehearing motions.

74:50:02:09. Prehearing motions. Any party may make a prehearing motion by filing the motion in writing with the department before the date set for the prehearing conference. Copies of the motion shall be served upon the chair of the hearing or the secretary and all parties of record. The motion shall contain the factual and legal bases for the motion. The motion shall be heard and a decision on it made by the chair of the hearing or the secretary at the prehearing conference.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:08, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-18, 1-26-19, 1-26-19.2.

Rule 74:50:02:10 Prehearing conference.

74:50:02:10. Prehearing conference. The chair of the hearing or the secretary shall hold a prehearing conference within 20 days after the filing of a petition for a contested case. The chair of the hearing or the secretary shall decide all prehearing motions at this conference and shall establish a reasonable discovery schedule. The chair of the hearing or the secretary shall also set the time and place of the hearing. Any other issue properly discussed at a pretrial conference under the rules of civil procedure may be heard at the prehearing conference.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:09, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-18, 1-26-19, 1-26-19.2.

Cross-Reference: Pretrial procedure, SDCL 15-6-16.

Rule 74:50:02:11 Notice of contested case.

74:50:02:11. Notice of contested case. The department shall issue a notice of a contested case proceeding which complies with the provisions of SDCL 1-26. The notice shall refer to all petitions filed with the department and shall be served upon all parties of record.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:10, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-16, 1-26-17, 1-26-27.

Rule 74:50:02:12 Subpoenas.

74:50:02:12. Subpoenas. The chair of the hearing or the secretary shall issue any subpoena necessary for the conduct of the hearing. A party wishing to obtain a subpoena shall submit a written request and a proposed subpoena to the chair of the hearing or the secretary.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:11, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-19.1.

Rule 74:50:02:13 Conduct of hearings.

74:50:02:13. Conduct of hearings. The chair of the hearing shall act as the chair of the board for the contested case hearing before the board and shall make all necessary evidentiary rulings during the proceeding.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:12, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-19.

Rule 74:50:02:14 Transcripts.

74:50:02:14. Transcripts. A party wishing to obtain a transcript of a contested case hearing must make arrangements with a court reporter prior to the hearing. The department or the board may, on their own motion, have a transcript of a contested case proceeding prepared; however, parties must obtain copies of the transcript from the court reporter at their own expense.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:13, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-22.

Rule 74:50:02:15 Means and proof of service.

74:50:02:15. Means and proof of service. The service of all pleadings, notices, or orders may be made by certified mail or personal service. An affidavit of mailing or service, copies of the receipts for delivery of certified mail, an admission of service, or other competent evidence is proof of service.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:14, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-19.

Rule 74:50:02:16 Degree of proof required.

74:50:02:16. Degree of proof required. Whenever, under the provisions of this chapter, a person is required to find, demonstrate, show, or otherwise establish a fact, that fact must be established by a preponderance of the evidence.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:15, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-19.

Rule 74:50:02:17 Appointment of hearing examiner.

74:50:02:17. Appointment of hearing examiner. The secretary or the board may appoint a hearing examiner to conduct the hearing of the contested case. After conducting the prehearing conference and hearing the proceeding, the hearing examiner shall make a written recommended memorandum decision to the board, which contains findings of fact, conclusions of law, and an order. A copy shall be served upon all parties of record. The secretary or board shall allow all parties to object in writing to the hearing examiner's recommended decision and to present oral argument before the board or secretary renders a final decision on the contested case proceeding.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:16, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-18.1.

Rule 74:50:02:18 Decision made by majority of board.

74:50:02:18. Decision made by majority of board. A final decision in a contested case before the board is that obtained by a majority vote from a quorum of the board. Final decisions and resulting orders must be signed by the chair of the board.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:17, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-23, 1-26-25.

Rule 74:50:02:19 Findings of fact, conclusions of law, and order.

74:50:02:19. Findings of fact, conclusions of law, and order. All parties to a contested case proceeding shall present proposed findings of fact, conclusions of law, and an order to the board or secretary at the close of the hearing. The board or secretary shall adopt or reject findings, conclusions, and an order in support of its decision, which constitutes the agency's final decision. The department shall serve written notice of the findings, conclusions, and order upon all parties to the proceeding. A party may file written objections to the final decision within 10 days after receipt of the notice, although the appeal time under SDCL 1-26 runs from the date of receipt of the notice.

Source: 14 SDR 86, effective December 24, 1987; transferred from § 74:03:13:18, July 1, 1996.

General Authority: SDCL 34A-2-93.

Law Implemented: SDCL 1-26-23, 1-26-25.

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