APRIL 2012 CROW TRIBAL LEGISLATURE

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BILL NO. CLB 12-02

INTRODUCED BY CEDRIC BLACK EAGLE, CHAIRMAN

CROW TRIBE EXECUTIVE BRANCH

A BILL FOR AN ACT ENTITLED:

“APPENDIX B—- ADMINISTRATIVE LAW PROVISIONS FOR THE

CROW COAL MINING AND RECLAMATION CODE”

WHEREAS, regulation of surface coal mining and reclamation in the United States is

governed by Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977

(SMCRA), which is administered by the Office of Surface Mining and Reclamation Enforcement

("OSM") within the U.S. Department of the Interior; and

WHEREAS, the Congress amended SMCRA in 2006 to allow for Tribes to assume the

primary role administering SMCRA on Reservation land under the jurisdiction of the Tribes,

subject to approval and continued oversight by OSM (referred to as "SMCRA primacy"); and

WHEREAS, the Crow Tribe intends to implement SMCRA primacy using a staged

approach, beginning with assumption of inspection and enforcement functions and ultimately

including processing and issuance of permits for new coal mines and modifications to existing

mining permits; and

WHEREAS, as the first step in assuming primacy, the Crow Reclamation Office

developed a comprehensive coal mining and reclamation code modeled after the provisions of

the Federal SMCRA; and

WHEREAS, the Legislative Branch of the Crow Government passed "The Crow Coal

Mining and Reclamation Code" (the "Code"), in the April 2010 legislative session, which was

approved by the Chairman of the Executive Branch of the Government; and

WHEREAS, Section 201(c)(1) of the Code requires that the Director of the Crow Coal

Regulatory Office promulgate and publish administrative rules and regulations to carry out the

purposes and provisions of the Code according to procedures set forth in an Appendix B; and

WHEREAS, Section 319 of the Code requires that hearings conducted under the Code

pursuant to Section 319 shall be conducted according to the procedures set forth in an Appendix

B; and

January 2012 Legislative Session

Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

Page 1 of 29

WHEREAS, under the 2001 Crow Constitution, the Enumerated Powers of the

Executive Branch of the Crow Government include the power to, in Article IV, Section 3(a),

“represent the Crow Tribe of Indians in negotiation with Federal, State and local governments

and other agencies, corporations, associations, or individuals in matters of welfare, education,

recreation, social services and economic development affecting the Crow Tribe of Indians;” and

WHEREAS, the powers and duties of the Legislative Branch of the Crow Government

under the 2001 Crow Constitution include in Article V, Section 2(a) the power “to promulgate

and adopt laws, resolutions, ordinances, codes, regulations, and guidelines in accordance with

this Constitution and federal laws for the governance of the Crow Tribe of Indians;”

NOW, THEREFORE, BE IT ENACTED BY THE CROW TRIBAL LEGISLATURE:

Section 1. ADOPTION. Appendix B — Administrative Law Provisions for the Crow

Coal Mining and Reclamation Code ("Appendix B"), attached hereto and incorporated herein by

reference, is hereby enacted as the law of the Crow Tribe, and upon its effective date will be

codified within the Crow Law and Order Code.

Section 2. EFFECTIVE DATE. The effective date of Appendix B shall be when all of

the following conditions have been met: (1) The Code and other requirements for the Crow Coal

Regulatory Office implementation of full or partial Program Primacy under SMCRA are

approved by the Office of Surface Mining/Secretary of the Interior, (2) implementing regulations

have been promulgated and adopted as provided in the Code, and (3) the Director of the Crow

Office of Reclamation has certified in writing to the Legislature and the Chairman of the

Executive Branch that staffing and all other arrangements necessary are made ready for the Crow

Coal Regulatory Office to effectively administer the Code in whole or in part in accordance with

approval by the Office of Surface Mining/Secretary of the Interior.

January 2012 Legislative Session

Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

Page 2 of 29

CERTIFICATION

I hereby certify that this Bill for “Appendix B — Administrative Law Provisions for the

Crow Coal Mining and Reclamation Code” was duly enacted by the Crow Tribal

Legislature with a vote of 14 for, 0 opposed, and _0_ abstained and that a quorum

was present on this _18"" day of April, 2012.

ATTEST:

Senator R. Knute Old Crow, Sr.

Secretary, Crow Tribal Legislature

January 2012 Legislative Session

nator Kenneth G. Shane

Speaker of the House

Crow Tribal Legislature

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Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

Page 3 of 29

EXECUTIVE ACTION

I hereby:

approve

veto

this bill for “Appendix B — Administrative Law Provisions for the Crow Coal Mining and

Reclamation Code” pursuant to the authority vested in the Chairman of the Crow Tribe

by ae V, Section 8 of the Constitution and Bylaws of the Crow Tribe of Indians, on

thal OF ay of

Cedric Black Eagle, Chairman

Crow Tribal Executive Branch

January 2012 Legislative Session

Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

Page 4 of 29

A BILL FOR AN ACT ENTITLED:“APPENDIX B —- ADMINISTRATIVE LAW PROVISIONS FOR

THE CROW COAL MINING AND RECLAMATION CODE”

Bill or Resolution: JAR12-02 Introduced by: Chairman Cedric Black Eagle Date of Vote: 4/18/2012

Number

Representative: Yes No Abstained

H. Two Leggins

V. Pretty Paint

C. J. Stewart

S. Backbone

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A.Coyote-Runs, Sr.

L. Not Afraid.

Covers Up, Sr. Xx

P. Alden, Jr.

M. Not Afraid

V. Crooked Arm

L. DeCrane

C. Goes Ahead

B. Hugs

G. Real Bird, Jr.

a oa (aC a

M. Backbone

D. Wilson

R. K. Old Crow,Sr. Xx

Secretary of the House

K. Shane x

Speaker of the House

Totals: 14 0 0

Result of Vote:

Passed Not Passed Tabled Veto-Override

VK ahbbeto- he... adm

Serlator Kenneth G. Shdne Date Senator R. Knute Old Crow, Sr. Date

Speaker of the House Secretary of the House

Appendix B - Administrative Law Provisions for the

Crow Coal Mining and Reclamation Code

Part 1. Rulemaking Procedures

Sec. 1. Authority, Findings, and Policy.

(a) Pursuant to Section 201(c)(1) of the Crow Coal Mining and Reclamation

Code ("Code"), the Director of the Crow Coal Regulatory Office

("CCRO") is empowered to promulgate and publish rules and regulations

as necessary to carry out the purposes and provisions of the Code. These

tules and regulations must be promulgated according to the procedures set

forth in this Appendix B.

(b) Administrative procedures for rulemaking will assist in ensuring the

protection, health, safety and welfare of Crow Tribal members, the public,

and all persons residing or doing business within the Crow Reservation by

formalizing tribal guarantees that no person within tribal jurisdiction shall

be deprived of liberty or property by tribal government action without due

process of law.

procedures to guide and govern the exercise of its regulatory powers in

rulemaking.

Sec. 2. Notice, Hearing, and Publication.

(a) Prior to the adoption, amendment, or repeal of any substantive rule or

regulation, not relating to internal procedures or management practices,

the Director of the CCRO must provide written notice to the public of the

proposed action. The written notice must include the information listed in

subsection (f) of this Section. The CCRO Director must also conduct a

public hearing on the proposed action. The CCRO Director may issue a

single notice regarding the adoption, amendment, or repeal of several rules

or regulations for a single proceeding.

(b) The CCRO Director must provide written notice of any proposed

adoption, amendment, or repeal of any substantive rule or regulation, not

relating to internal procedures or management practices, to the Chairman

of the Crow Tribe Executive Branch, the Speaker of the Crow Tribal

Legislative Branch, the Crow Tribal Court, and the Director of the Office

of Surface Mining and Reclamation ("OSM") within the U.S. Department

of the Interior not later than thirty (30) days prior to the public hearing on

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Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

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the proposed action. The written notice must include the information

listed in subsection (f) of this Section and must include a copy of the full

text of the proposal and the explanation thereof.

Legislature on any proposed adoption, amendment, or repeal of any

substantive rule or regulation, not relating to internal procedures or

management practices, not later than ten (10) days prior to the public

hearing on the proposed action.

(d) Any interested persons who have made timely requests to the CCRO to be

informed of its rulemaking proceedings must be provided written notice

by the CCRO Director of any proposed adoption, amendment, or repeal of

any substantive rule or regulation, not relating to internal procedures or

management practices, not later than thirty (30) days prior to the public

hearing on the proposed action. The written notice must include the

information listed in subsection (f) of this Section and must include a copy

of the full text of the proposal and the explanation thereof.

(e) Written comments on the proposed action may be submitted by any

interested person and oral comment may be received from any interested

person who submits a notice of intention to comment. All written

comments and notices of intention to orally comment must be submitted to

the Director of the CCRO no later than three (3) days prior to the date of

the hearing.

(f) Written notice of the proposed action, as required in subsection (a), must

be published not later than thirty (30) days before the date set for the

public hearing and shall be published once a week for two (2) consecutive

weeks in a local newspaper of general circulation. The written notice

must include the following:

1. the subject of the proposed rule, regulation, or action;

the reasonable necessity for the proposed action and the effect if

adopted;

3. the date, time, and place of the public hearing to be conducted;

4. the mailing address of the person and place from which a copy of

the full text of the proposal and the explanation thereof may be

obtained by any interested person; and

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Sec. 3.

Sec. 4.

(g)

5. the date and place for submission of written comments and for

submission of an intention to make an oral comment at the hearing.

Persons making an oral comment at the hearing shall be subject to

questioning relevant to their testimony by the Director of the CCRO.

Emergency Rule or Regulation.

(a)

(b)

(c)

If the CCRO Director determines that an imminent threat to the public

health, safety, or welfare requires adoption of a rule or regulation upon

less notice than provided in this Section, and states in writing an

emergency rule justification, including the reasons for that finding, the

CCRO Director may proceed, without prior notice or with an abbreviated

notice and hearing, to adopt an emergency rule or regulation.

The CCRO Director must provide special notice to the Chairman of the

Crow Tribe Executive Branch, the Crow Tribal Legislature, the Crow

Tribal Court, the Secretary of the U.S. Department of the Interior

("Secretary"), and the Director of OSM.

The CCRO Director must submit all relevant information regarding

adoption of an emergency rule or regulation to the Director of OSM,

including the emergency rule justification in subsection (a) above and all

information required under Section 6 of this Part. OSM approval is

required for an emergency rule or regulation, as provided under Section 6

of this Part. After approval by the Director of OSM or the Secretary, an

emergency rule or regulation shall become permanent and effective upon

publication in the Federal Register unless the notice specifies a different

effective date.

Petition for Adoption, Amendment, or Repeal of a Rule or Regulation.

(a)

Any interested person may petition the CCRO requesting the

promulgation, amendment, or repeal of a substantive rule or regulation,

not relating to internal procedures or management practices. The petition

shall include a concise statement of the facts, technical justification, and

law that support promulgation, amendment, or repeal of a substantive rule

or regulation.

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(b) Upon receipt of the petition, the CCRO Director must determine if the

petition sets forth facts, technical justification and law, which may provide

a reasonable basis for issuance, amendment, or repeal of a substantive rule

or regulation. Facts, technical justification or law previously considered in

a petition or rulemaking on the same issue shall not provide a reasonable

basis.

notice shall be published in a newspaper of general circulation in the area

of the CCRO and formal notice must be given to the Legislative, Judicial

and Executive Branches of Crow Tribal Government seeking comments

from the public on the proposed change. The CCRO Director may hold a

public hearing, conduct an investigation, or take other action to determine

whether the petition should be granted.

(d) Within ninety (90) days after receipt of a petition, the Director of the

CCRO either must deny the petition in writing, stating the reasons for the

denial, or must initiate rulemaking proceedings in accordance with Part 1.

of this Appendix B.

Sec. 5. Requisites for Validity.

(a) The Director of the CCRO must fully consider written and oral

submissions regarding a proposed substantive rule or regulation. The

CCRO Director must prepare a concise statement of the principal reasons

for and against adoption, amendment, or repeal of the rule or regulation,

including any responding comments by the CCRO. These statements of

principal reasons for and against adoption, amendment, or repeal of the

tule or regulation and the corresponding comments of the CCRO must be

provided without charge to any requesting person. If no written or oral

submissions have been received, the statement of reasons may be omitted.

(b) Each substantive rule or regulation adopted or amended by the CCRO

must be within the scope of authority conferred by the Code and in

accordance with standards prescribed by applicable tribal and federal law.

the CCRO is subject to review and approval by the Secretary or the

Director of OSM as required under subsection 710(j)(1) of the Surface

Mining Control and Reclamation Act of 1977 ("SMCRA").

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Sec.6. OSM Approval, Effective Date, and Publication.

(a) Within thirty (30) days of a public hearing regarding the adoption,

amendment, or repeal of a substantive rule or regulation, the CCRO

Director must submit all relevant information to the Director of OSM,

including the following:

1. the language of the proposed adoption, amendment, or repeal of

the substantive rule or regulation;

2. information obtained from the public hearing;

3. astatement of the principal reasons for and against adoption,

amendment, or repeal; and

4. any responding comments by the CCRO.

(b) The Director of OSM or the Secretary will approve or disapprove the

proposed adoption, amendment, or repeal of the substantive rule or

regulation, which will be published in the Federal Register and will be

effective upon publication unless the notice specifies a different effective

date. Decisions by the Director of OSM or the Secretary will be published

in the Federal Register within thirty (30) days of the date of the decision.

Section 7, the CCRO Director must provide written notice, published once

a week for two (2) consecutive weeks in a local newspaper of general

circulation, of the filing, effective date, and the mailing address from

which the complete text of the rule or regulation, including the summary

and response to comments, may be obtained.

Sec. 7. Filing and Dissemination.

(a) The Director of the CCRO must file with the Office of the Secretary of the

Crow Tribe Executive Branch, the Secretary of the Crow Tribe Legislative

Branch, the Crow Tribal Court, the Tribe's Office of Legal Counsel, and

the Secretary, a copy of each rule or regulation adopted, amended, or

repealed under this Part upon publication in the Federal Register.

(b) The Director of the CCRO must keep and maintain a permanent register of

all rules and regulations filed, including superseded and repealed rules and

regulations, which must be open to public inspection, and must provide

copies of any rule or regulation upon request. The Director of the CCRO

may require payment for the cost of providing such copies.

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Part 2.

Sec. 8. Judicial Review.

(a)

Section 324(a)(1) of the Code provides for review of the rules and

regulations promulgated by the CCRO by the Crow Tribal Court. The

tules and regulations adopted by the CCRO will be upheld unless the

Crow Tribal Court finds they are arbitrary, capricious, or otherwise

inconsistent with applicable law.

Administrative Adjudicatory Hearings

Sec.9. Authority, Findings, and Policy.

(a)

(b)

(c)

Pursuant to Section 319 of the Code, hearings must be conducted

according to the procedures set forth in Part 2 of this Appendix B.

Administrative procedures for the hearing and deciding of contested cases

will assist in ensuring the protection, health, safety and welfare of Crow

Tribal members, the public, and all persons residing or doing business

within the Crow Reservation by formalizing tribal guarantees that no

person shall be deprived of liberty or property by tribal government action

without due process of law.

It is the policy of the CCRO to provide fair, open, and equitable

procedures to guide and govern the exercise of its regulatory powers and

to make available an opportunity for hearings and for subsequent judicial

review to every person aggrieved by a regulatory action of the Crow Coal

Regulatory Office.

Sec. 10. Petition for Administrative Hearing.

(a)

An applicant, permittee, or any person with an interest that is or may be

adversely affected may petition for a hearing on the following decisions of

the CCRO by submitting a written request to the CCRO stating the reason

for the request within thirty (30) days after any of the following:

1. approval or denial of an application for a permit or revisions to a

permit, including decisions on challenges to an ownership or

control listing or finding, suspension or rescission of

improvidently-issued permits, and findings concerning a

demonstrated pattern of willful violations, pursuant to Sections 306

through 310 of the Code;

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notice of a violation of permit conditions or any other provision of

the Code with charges of a civil penalty and orders pertaining to

the suspension or revocation of permits pursuant to Sections 315

and 318 of the Code;

3. approval or denial of an application for release of performance

bond or deposit pursuant to Section 316 of the Code;

4. notice to abate a violation of the Code or any permit condition

required by the Code, issuance of a cessation order, or order to

show cause regarding why a permit should not be suspended or

revoked pursuant to Section 323 of the Code;

5. notice of a designation or redesignation of lands as unsuitable for

mining pursuant to Section 321 of the Code;

(b) Any party to an investigation of an alleged discriminatory act under

Section 406 of the Code may make a written request for a hearing to the

CCRO within sixty (60) days after an application is made to the CCRO for

review of the alleged discriminatory act.

must include the following:

1. The name, mailing address, and phone number of the petitioner

and the petitioner's authorized representative, if any;

2. The place of organization and the principal place of business, if the

petitioner is a business;

3. A statement of the facts constituting the alleged injury to the

petitioner's interests; and

4. The relief requested.

(d) Upon receipt of a written request to petition for a hearing, the CCRO must

transmit the petition, including the administrative record of the matter, to a

Hearing Officer, who is appointed and authorized in accordance with

Section 12. No later than ten (10) days after receipt of a petition, the

Hearing Officer must set a schedule for a hearing and send notice of the

schedule to all parties, including a copy of the petition and the

administrative record of the matter. The hearing must be held within

forty-five (45) days of the date of the notice of schedule unless the time is

extended by the Hearing Officer for good cause. Alternatively, the

hearing must be expedited if required by law or for good cause shown by

the petitioner.

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(e) The respondent must have fifteen (15) days from receipt of a copy of a

petition to file an answer or response with the Hearing Officer and

simultaneously serve copies of that document on all other parties and

persons participating in the proceeding.

Sec. 11. Petition for Temporary Relief.

(a) Filing Requirements

An application for temporary relief may be filed by any party to a

proceeding at any time prior to a decision by the Hearing Officer. The

application must be filed with the Hearing Officer to whom the case has

been assigned the applicant shall simultaneously serve copies of the

document on all other parties and persons participating in the proceeding.

(b) Contents of Application

The application must include:

1. A detailed written statement setting forth the reasons why relief

should be granted;

2. A showing that there is a substantial likelihood that the findings

and decision of the Hearing Officer in the matters to which the

application relates will be favorable to the applicant;

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A statement that the relief sought will not adversely affect the

health or safety of the public or cause significant, imminent

environmental harm to land, air, or water resources;

4. Ifthe application relates to an order of cessation issued pursuant to

Section 318(a)(2) or (a)(3) of the Code, a statement of whether the

requirement of Section 323(c) of the Code for decision on the

application within 5 days is waived; and

5. A statement of the specific relief requested.

Except as provided in subsection (e) below, all parties to a proceeding to

which the application relates must have 5 days from the date of receipt of

the application to file a written response. Further, except as provided in

subsection (e) below, the Hearing Officer may hold a hearing on any issue

raised by the application deemed appropriate by the Hearing Officer.

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(d) Determination on Application Concerning Notice of Violation pursuant to

Section 318 of the Code

Where an application has been filed requesting temporary relief from a

notice of violation issued under Section 318 of the Code, the Hearing

Officer must expeditiously issue an order or decision granting or denying

such relief.

(e) Determination on Application Concerning Order of Cessation

If the 5-day requirement of Section 323(c) of the Code is waived, the

Hearing Officer must expeditiously conduct a hearing and render a

decision on the application. If there is no waiver of the 5-day requirement

of Section 323(c) of the Code, the following special rules must apply:

1. The 5-day time for decision must not begin to run until the

application is filed pursuant to subsection (a) of this Section.

2. The applicant shall serve any other parties with a copy of the

application simultaneously with the filing of the application. If

service is accomplished by mail, the applicant shall inform such

other parties by telephone at the time of mailing that an application

is being filed, the contents of the application, and with whom the

application was filed.

3. All other parties may indicate their objection to the application by

communicating such objection to the Hearing Officer and the

applicant by telephone. However, no ex parte communication as to

the merits of the proceeding may be conducted with the Hearing

Officer. All other parties must simultaneously reduce their

objections to writing. The written objections must be immediately

filed with the Hearing Officer and immediately served upon the

applicant.

4. Upon receipt of communication that there is an objection to the

request, the Hearing Officer must immediately order a location,

time, and date for the hearing by communicating such information

to all parties and the applicant by telephone. The Hearing Officer

must reduce such communications to writing in the form of a

memorandum to the file.

5. The Hearing Officer may require the parties to submit proposed

findings of fact and conclusions of law at the hearing which may

be orally supplemented on the record at the hearing or where

written proposed findings of fact and conclusions of law have not

been submitted at the hearing, they may be orally presented for the

record at the hearing. The Hearing Officer must either rule from

the bench on the application, orally stating the reasons for his

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decision or shall within 24 hours of completion of the hearing,

issue a written decision. If the Hearing Officer makes an oral

ruling, his approval of the record of the hearing shall constitute the

written decision.

The order or decision of the Hearing Officer must be issued within

five (5) working days of the receipt of the application for

temporary relief.

If at any time after the initiation of this expedited procedure, the

applicant requests a delay or acts in a manner so as to frustrate the

expeditious nature of this proceeding or fails to supply the

information required, such action shall constitute a waiver of the 5-

day requirement of Section 323(c) of the Code.

(f) Application for Temporary Relief from Alleged Discriminatory Acts

January 2012 Legislative Session

On or after ten (10) days from the filing of an application for

review under this Section, any party may file an application for

temporary relief from alleged discriminatory acts.

The application shall be filed with the Hearing Officer and include:

i. A detailed written statement setting forth the reasons why

relief should be granted;

ii. A showing that the complaint of discrimination was not

frivolously brought;

iii. A description of any exigent circumstances justifying

temporary relief; and

iv. A statement of the specific relief requested.

All parties to the proceeding to which the application relates must

have five (5) days from receipt of the application to file a written

response with the Hearing Officer and simultaneously serve copies

of that document on all other parties and persons participating in

the proceeding.

The Hearing Officer may convene a hearing on any issue raised by

the application deemed appropriate by the Hearing Officer.

The Hearing Officer must expeditiously issue an order or decision

granting or denying such relief.

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6. Ifall parties consent, before or after the commencement of any

hearing on an application for temporary relief, the Hearing Officer

may order the hearing on the application for review of alleged

discriminatory acts to be advanced and consolidated with the

hearing on the application for temporary relief.

(g) Appeals

Any party desiring to appeal a decision of the Hearing Officer granting or

denying temporary relief may seek judicial review pursuant to Section

324(a) of the Code.

Sec. 12. Hearing Officers.

(a) Scope of Authority

Hearing Officers are authorized to conduct hearings pursuant to Section

319 of the Code, which includes hearing, considering, and determining

matters within the jurisdiction of the CCRO in accordance with the Code

and the Crow Coal Regulatory Office Coal Mining and Reclamation

Regulations ("CMRR").

(b) Appointment and Term of Hearing Officers

The Chairman of the Crow Tribe Executive Branch must appoint a person

with suitable qualifications to serve as a Hearing Officer on an as-needed

basis for a term of four (4) years, with confirmation by the Crow Tribal

Legislature.

In making the appointment of Hearing Officers, the following

qualifications must be considered:

1. education or experience in the application of administrative law

and procedures;

2. education or experience in conducting contested case hearings;

3. writing skills and ability to summarize findings of fact and

conclusions of law; and

4. substantive knowledge or experience in the discipline or field or

expertise related to the activities of the CCRO and the activities

conducted under the Code.

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(d) Compensation and Reimbursement

Hearing Officers may receive such compensation for services rendered as

provided by the CCRO, including reimbursement for travel and per diem

expenses incurred by reason of required attendance for matters and

hearings pursuant to this Appendix B.

(e) Vacancies and Removal

A vacancy occurring in the position of Hearing Officer, other than

by expiration of a term, must be filled by appointment for the

remainder of unexpired term in accordance with subsection (b) of

this Section.

A Hearing Officer may be removed by the Chairman of the Crow

Tribe Executive Branch, for cause, after due notice to the Hearing

Officer and an adequate opportunity to be heard by the Chairman

of the Crow Tribe Executive Branch and the Crow Tribal

Legislature.

(f) Powers and Duties of Hearing Officer

The Hearing Officer must:

January 2012 Legislative Session

Administer rules of practice for contested case hearings;

Receive all petitions for hearing of contested cases made pursuant

to the procedures set forth in this Part 2 of Appendix B and set

times and places for hearings;

. Transmit a written report on or before the end of January each

year to the Tribal Chairman and the Crow Legislative Branch on:

i. the numbers, types, and disposition of contested cases

heard, the costs associated with such hearings; and

il. any recommendations the Hearing Officer may have for

amendments or improvements to the administrative

procedures of the CCRO

Conduct any hearing on the record and in accordance with the

procedures contained in this Part 2 of Appendix B and determine

by final order or decision any contested matter so heard; and

Make complete and accurate records of all proceedings associated

with the hearing and disposition of contested cases.

Appendix B — Administrative Law Provisions for the Crow Coal Mining and Reclamation Code

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(g) Additional Powers of Hearing Officer

A Hearing Officer may:

1. Require the CCRO to provide secretarial and/or court reporter

services and supplies for purposes of conducting and recording the

hearing on a contested case to which the CCRO is a named party;

2. Utilize the services of the support staff of the Crow Tribe's Office

of Legal Counsel for routine clerical activities;

3. Take judicial notice of the files, documents, records, and maps of

the CCRO and the Bureau of Indian Affairs; and

4. Exercise all powers necessarily incidental to the Hearing Officer's

authority to conduct hearings of contested cases and determine

their disposition, including the following:

i. to issue notice,

ii. to issue subpoenas requiring the attendance of persons and

the production of documents,

iii. to administer oaths and affirmations,

iv. to provide for the taking of testimony and depositions,

v. to set the time and place for hearings,

vi. to set motion and briefing schedules, if applicable,

vii. by mutual consent of the parties, to hold conferences to

consider narrowing or simplifying the issues,

viii. to rule on the relevancy, materiality, and redundancy of

evidence, and

ix. to dispose of procedural requests or similar matters.

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(h) Disqualification

1. No Hearing Officer may hear or decide a contested case involving

the personal interests of the Officer or of a person in the

immediate family of the Officer. Immediate family in this context

shall mean a spouse or former spouse, any person related by

blood, marriage or adoption to the Officer in the first or second

degree.

A party may file in good faith a timely and sufficient affidavit of

personal bias, disqualification by law, or other disqualification of

the Hearing Officer. The affidavit must state the facts and reasons

for the belief that the Hearing Officer should be disqualified and

must be filed with the Hearing Officer and the Director of the

CCRO not less than ten (10) days before the hearing in a contested

case.

3. The Hearing Officer will consider the objections and decide

whether to withdraw or proceed with the hearing.

4. Ifthe Hearing Officer does not withdraw, the objecting party may,

after the hearing, present its objections to the Crow Tribal Court as

reasons for changing, modifying, or reversing the Hearing

Officer's decision.

Sec. 13. Adjudications.

(a) Notice

Parties entitled to notice of a hearing of a contested case must be informed

within thirty (30) days of the hearing of:

1. A statement of the time, place, and nature of the hearing;

2. A reference to the particular section(s) of the Code involved; and

3. A short and plain statement of the matters asserted.

Except for expedited review proceedings and temporary relief proceedings

where time is of the essence, notice given under this Section must be in

writing.

In an expedited proceeding when there is only opportunity to give oral

notice, the Hearing Officer must enter that fact contemporaneously on the

record by a signed and dated memorandum describing the notice given.

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(b) Ex Parte Communication

A Hearing Officer must not communicate with any party or their

representative in connection with any issue of fact or law. Upon receipt

of a communication knowingly made or knowingly caused to be made by

a party in violation of this subsection, the Hearing Officer may, to the

extent consistent with the interests of justice and the policy of the

underlying laws, require the party to show why their claim or interest in

the proceeding should not be dismissed, denied, disregarded, or otherwise

adversely affected as a result of such violation.

A party is entitled to appear in person or by or with legal counsel

or other authorized representative in a proceeding before a Hearing

Officer. A person compelled to appear in person before a Hearing

Officer may be accompanied, represented, and advised by legal

counsel or other authorized representative, provided that such

counsel or representative is employed by said person at his or her

own costs.

Subpoenas shall be issued by a Hearing Officer to a party on

request or when required by a Hearing Officer on a showing of

general relevance and reasonable scope of the evidence sought.

In fixing the time and place for a hearing, due regard must be made

for the convenience and necessity of the parties or their

representatives. When private persons are the moving parties,

other parties to the proceeding shall provide prompt notice of

issues that are controversial in fact or law, and the Hearing Officer,

may in his or her discretion, require a responsive pleading.

A Hearing Officer, may in his or her sound discretion, issue a

declaratory order to terminate a controversy or remove uncertainty,

with the same effect as a final order.

Disposition of any contested case may be made by stipulation,

agreed settlement, consent order, or default.

(d) Conduct of Hearings

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The Hearing Officer must ensure that all parties are afforded the

opportunity to respond and present evidence and argument on all

issues involved.

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The hearing is open to attendance by the public, except for such

portions closed by the Hearing Officer pursuant to an applicable

law or regulations expressly authorizing closure.

The hearing, including all testimony, must be reported verbatim by

any appropriate means, including video cameras. A copy of such

proceedings will be furnished to any party upon written request

and the payment of a reasonable fee. If one or more parties desire

the hearing transcribed by a certified court reporter, they must

make the necessary arrangements and bear the costs thereof.

Absent a determination by the Hearing Officer that the interests of

justice require otherwise, the order of a hearing is as follows:

i. The Hearing Officer must announce that the hearing is

convened and must indicate the title of the case to be

heard;

ii. Any motions or preliminary matters must be heard;

iii. Any opening statements requested or allowed by the

Hearing Officer, to briefly explain the party's position and

outline the proposed evidence which will be offered along

with its purpose;

iv. Presentation of evidence by the party asserting a claim for

relief (the petitioner);

v. Cross-examination by the opposing party (respondent);

vi. Rebuttal testimony as allowed and directed by the Hearing

Officer; and

vii. | Any closing statements requested or allowed by the

Hearing Officer.

All testimony must be under given under oath or affirmation.

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6. The burdens of proof and persuasion must be as follows. For the

burden of proof, a prima facie case is made when sufficient

evidence is presented to establish essential facts that provide

sufficient proof if not contradicted. To satisfy the burden of

persuasion, a case must be proven by a preponderance of the

evidence, which is evidence that is of greater weight or more

convincing than the evidence which is offered in opposition to it.

i. Incivil penalty proceedings, the CCRO shall have the

burden of going forward to establish a prima facie case as

to the fact of the violation and the amount of the civil

penalty and the ultimate burden of persuasion as to the

amount of the civil penalty. The person who petitioned for

review must have the ultimate burden of persuasion as to

the fact of the violation.

ii. In civil penalty proceedings:

a. The CCRO shall have the burden of going forward

with evidence to establish a prima facie case that:

(1) A corporate permittee either violated a condition

of a permit issued under the Code or failed or

refused to comply with an order issued under

Section 318 of the Code or an order

incorporated in a final decision by the CCRO

under the Code, unless the fact of violation or

failure or refusal to comply with an order has

been upheld in a final decision in a proceeding

under Part 2 of this Appendix B, and the

individual is one against whom the doctrine of

collateral estoppel may be applied to preclude

relitigation of fact issues;

(2) The individual, at the time of the violation,

failure or refusal, was a director, officer, or

agent of the corporation; and

(3) The individual willfully and knowingly

authorized, ordered, or carried out the corporate

permittee's violation or failure or refusal to

comply.

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b. The individual shall have the ultimate burden of

persuasion by a preponderance of the evidence as to

the elements set forth in paragraph (1) of this

subsection (d)6.ii.a.

c. The CCRO shall have the ultimate burden of

persuasion by a preponderance of the evidence as to

the elements set forth in paragraphs (2) and (3) of

this subsection (d)6.ii.a. and as to the amount of the

individual civil penalty.

iii. In review of Section 318 notices of violation or orders of

cessation, or the modification, vacation, or termination

thereof, including expedited review, the CCRO shall have

the burden of going forward to establish a prima facie case

as to the validity of the notice, order, or modification,

vacation, or termination thereof. The ultimate burden of

persuasion shall rest with the applicant for review.

iv. For hearings regarding a demonstrated pattern of willful

violations under Section 306(c) of the Code, the CCRO

shall have the burden of going forward to establish a prima

facie case and the ultimate burden of persuasion as to the

existence of a demonstrated pattern of willful violations of

such nature and duration with such resulting irreparable

damage to the environment as to indicate an intent not to

comply with the Code, the CMRR, the regulatory program,

or the permit, issued in accordance with the Code.

v. For review of approval, denial, or revisions of a permit

issued in accordance with the Code:

a. Ina proceeding to review a decision on an

application for a new permit:

(1) If the permit applicant is seeking review, the

CCRO shall have the burden of going forward

to establish a prima facie case as to the failure to

comply with the applicable requirements of the

Code or the CMRR or as to the appropriateness

of the permit terms and conditions, and the

permit applicant shall have the ultimate burden

of persuasion as to entitlement to the permit or

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as to the inappropriateness of the permit terms

and conditions.

(2) If any other person is seeking review, that

person shall have the burden of going forward to

establish a prima facie case and the ultimate

burden of persuasion that the permit application

fails in some manner to comply with the

applicable requirements of the Code or the

CMRR, or that the CCRO should have imposed

certain terms and conditions that were not

imposed.

b. Ina proceeding to review a permit revision ordered

by the CCRO, the CCRO shall have the burden of

going forward to establish a prima facie case that

the permit should be revised and the permittee shall

have the ultimate burden of persuasion.

c. Ina proceeding to review the approval or

disapproval of an application for a permit renewal,

those parties opposing renewal shall have the

burden of going forward to establish a prima facie

case and the ultimate burden of persuasion that the

renewal application should be disapproved.

d. Ina proceeding to review the approval or

disapproval of an application for a permit revision

or an application for the transfer, assignment, or

sale of rights granted under a permit:

(1) If the applicant is seeking review, the CCRO

shall have the burden of going forward to

establish a prima facie case as to the failure to

comply with applicable requirements of the

Code or the CMRR, and the applicant

requesting review shall have the ultimate burden

of persuasion as to entitlement to approval of

the application; and

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(2) If any other person is seeking review, that

person shall have the burden of going forward to

establish a prima facie case and the ultimate

burden of persuasion that the application fails in

some manner to comply with the applicable

requirements of the Code or the CMRR.

vi. For review of CCRO decisions proposing to suspend or

rescind or suspending or rescinding improvidently issued

permits, the CCRO shall have the burden of going forward

to present a prima facie case of the validity of the notice of

proposed suspension or rescission or the notice of

suspension or rescission. The permittee shall have the

ultimate burden of persuasion by a preponderance of the

evidence that the notice is invalid.

vii. | For review of CCRO decisions concerning ownership or

control challenges, the CCRO shall have the burden of

going forward to present a prima facie case of the validity

of the decision. 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.

vill. For requests to review CCRO determinations of issues

under Section 321 of the Code, if the person who requested

the determination is seeking review, the CCRO shall have

the burden of going forward to establish a prima facie case

and the person who requested the determination shall have

the ultimate burden of persuasion. If any other person is

seeking review, that person shall have the burden of going

forward to establish a prima facie case and the ultimate

burden of persuasion that the person who requested the

determination does or does not have valid existing rights.

7. Any part of the evidence may be received in written form if doing

so will facilitate the hearing without substantial prejudice to the

interests of any party. A reasonable opportunity must be afforded

to all parties of the intent to introduce and rely upon written

evidence within a reasonable period of time prior to the scheduled

hearing, and a copy of such evidence may be requested by any

party prior to the hearing.

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8. Exhibits offered by a party must be marked and identify the

person offering the exhibits. The petitioner's exhibits shall be

marked by numbers beginning with "1" and the respondent's

exhibits shall be marked by letters of the alphabet beginning with

"A." All exhibits shall be preserved as part of the record of the

proceedings.

9. The grounds for objection to any evidence or testimony offered

must be briefly stated. Rulings on all objections shall appear in

the record.

10. Irrelevant, immaterial, or unduly repetitious evidence must be

excluded, without regard to whether such evidence is in verbal or

written form.

11. Notice may be taken of judicially cognizable facts, along with

technical or scientific facts within the Hearing Officer's

specialized knowledge or information, provided that the parties are

properly notified of any material facts noticed.

12. The Hearing Officer may request the parties to submit written

arguments or proposed findings of fact and conclusions of law

according to a schedule set by the Hearing Officer.

(e) Record

1. The record in a.contested case hearing must include the following:

i. All formal and informal petitions, pleadings, motions,

orders, and notices;

ii. All evidence, either written or oral, received or considered

by the Hearing Officer, including matters officially noticed;

ili. Questions and offers of proof, objections, and rulings on

objections;

iv. Proposed findings and any objections thereto; and

v. Any decision, opinion, or report by the Hearing Officer,

which must be in writing.

2. Each party, or his authorized representative, must be permitted to

inspect and copy, at their own expense, all documents in the case

record.

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3. At the request of any party, the record may be transcribed. The

cost of transcription is the responsibility of the requesting party.

(f) Post Hearing Supplementation

After a hearing and before a decision has been issued, a party may file a

motion with the Hearing Officer for post-hearing supplementation of the

record to submit additional, newly discovered evidence on material issues.

If such motion is approved by the Hearing Officer, all other parties are

entitled to respond to the new evidence, with the record to be closed on a

date set by the Hearing Officer.

(g) Final Orders

1. The Hearing Officer must make a final written order or decision,

including findings of fact and conclusions of law, stated

separately, within thirty (30) days after the close of the record.

2. The findings of fact must be based exclusively on the evidence of

record and matters officially noticed.

3. Each conclusion of law must be supported by authority or by a

reasoned opinion.

4. All parties must be notified either personally or by mail of any

decision or order. Upon request, a copy of the decision or order

must be delivered or mailed to each party and to his attorney of

record.

5. The final order must be entered into the record and will, without

further action, become the decision and order as a result of the

hearing. The Hearing Officer must index and file the final order

with the CCRO.

(h) Reconsideration

1. A party may file a motion for reconsideration of a decision of the

Hearing Officer within thirty (30) days after the date of the

decision. The Hearing Officer may reconsider his or her decision

in extraordinary circumstances.

2. The motion may include a request that the Hearing Officer stay the

effectiveness of the decision. However, a motion for

reconsideration will not stay the effectiveness or affect the finality

of the Hearing Officer's decision unless so ordered by the Hearing

Officer for good cause.

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3. Any other party to the original action may file a response to a

motion for reconsideration with the Hearing Officer within

twenty-one (21) days after service of the motion, unless the

Hearing Officer orders otherwise.

4. A party does not need to file a motion for reconsideration in order

to exhaust its administrative remedies.

5. A motion for reconsideration must:

i. Specifically describe the extraordinary circumstances that

warrant reconsideration; and

ii. Include all arguments and supporting documents.

6. Extraordinary circumstances that may warrant granting

reconsideration include, but are not limited to:

. Error in the Hearing Officer's interpretation of material

facts;

ii. Recent judicial development;

iii. Change in OSM or CCRO policy; or

iv. Evidence that was not before the Hearing Officer at the

time the Hearing Officer's decision was issued and that

demonstrates error in the decision.

7. Ifthe motion cites extraordinary circumstances under subsection 6.

above, it must explain why the evidence was not provided to the

Hearing Officer during the course of the original hearing.

8. The Hearing Officer will not grant a motion for reconsideration

that:

i. Merely repeats arguments made in the original appeal,

except in cases of demonstrable error; or

ii. Seeks relief from the legally binding consequences of a

statute or regulation.

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(i) Judicial Review

1. Upon proper filing and availability for public inspection of a final

order or decision of a Hearing Officer, any person aggrieved by

such order or decision shall be presumed to have exhausted his

administrative remedies and such aggrieved person is entitled to

judicial review in the Crow Tribal Court.

A party may not raise any question or issue not raised before the

Hearing Officer. Review by the Crow Tribal Court shall be

confined to the record as defined in subsection (e) of this Section.

3. Proceedings for review in Crow Tribal Court must be initiated by:

i. Filing a Notice of Appeal with the Hearing Officer within

thirty (30) days after the date of the final order or decision;

and

ii. Filing a Petition for Review with the Crow Tribal Court

within thirty (30) days after the date of the final order or

decision.

Copies of the Petition for Review must be promptly served upon

the CCRO and all parties of record.

4. Unless otherwise provided by law, the filing of a Notice of Appeal

or Petition for Review shall not stay enforcement of an order or

decision of the Hearing Officer.

5. A Petition for Review must include a statement of the manner in

which the petitioner is aggrieved, the ground(s) upon which the

petitioner contends he or she is entitled to relief, and the relief to

which the petitioner believes he or she is entitled.

6. Within fifteen (15) days after receipt of a Notice of Appeal, the

Hearing Officer must transmit the original or certified copy of the

entire record of the proceedings under review to the Crow Tribal

Court. By stipulation of all parties to the review proceedings, the

record may be shortened. A party unreasonably refusing to

stipulate to limit the record may be charged by the Crow Tribal

Court for additional costs.

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7. Ifapplication is made to the Crow Tribal Court prior to the date set

for the Court hearing, for leave to present additional evidence,

alleging that the additional evidence is material and that there were

good reasons for failure to present it in the proceeding before the

Hearing Officer, the Hearing Officer may modify the findings of

fact and conclusions of law by reason of the additional evidence

and shall file that evidence and any modifications, new findings, or

decisions with the Court.

8. The Crow Tribal Court may not substitute its judgment for that of

the Hearing Officer unless substantial rights of the petitioner have

been prejudiced because the administrative findings, inferences,

conclusions, or decisions are:

i. In violation of applicable constitutional or statutory law;

ii. In excess of the delegated authority of the CCRO;

iii. Made upon unlawful procedure;

iv. Substantially affected or prejudiced by error of law;

v. Arbitrary, capricious or characterized by an abuse of

discretion;

vi. Clearly erroneous in view of the reliable, probative, and

substantial evidence of the whole record; or

vii. Because findings of fact, upon issues essential to the order

or decision, were not made although requested.

9. Judgments and/or final orders of the Crow Tribal Court issued

pursuant to Sections 315 and 324 of the Code shall be subject to

review by the Crow Court of Appeals, as provided in Title 3 of the

Crow Law and Order Code and the Crow Rules of Appellate

Procedure.

10. Petitions for review in the appropriate United States circuit court

pursuant to Section 710(j)(4)(A) of SMCRA (30 U.S.C. §

1300(j)(4)(A)) may be pursued only after exhausting all tribal

remedies and Tribal court proceedings provided under the Code

and this Appendix B.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.