Science, and transportation united states senate

(4) To take depositions or cause same to be taken ;

(5) To rule upon offers of proof and to receive eivdence ;

(6) To hold appropriate conferences before or during hearings ;

(7) To dispose of procedural matters but not to dispose of motions made

during hearings to dismiss proceedings or other motion which involves a final

determination of proceedings ;

(8) To exclude evidence which is cumulative or repetitious ;

(9) To authorize any party to furnish and serve designated late-filed ex-

hibits within a specified time after the close of the hearing;

(10) To order discovery ;

(11) Within their discretion, or upon direction of the Board, to certify

any question to the Board for its consideration and disposition ; and

(12) To take any other action necessary or appropriate to discharge the

duties vested in them, consistent with statutory or other authorities under

which the Board functions and with the rules, regulations and policies of

the Board.

04.104 Limitations : Hearing officers shall perform no duties inconsistent with

their responsibilities as such. No officer shall in any proceeding for an adjudica-

tion required by statute to be determined on the record after opportunity for

hearing, consult any person or party on any fact in issue unless upon notice and

opportunity for all parties to participate.

04.105 Disqualification :

704

officer. The Board shall determine the petition in accordance with this sub-

section and enter its decision on the record.

(2) The Board may, for good cause, revoke the appointment of any hearing

officer upon the tiling of a petition of a party or upon the Board's own motion.

Any such revocation shall be effective upon notice to the officer.

(3) A hearing officer shall withdraw from participation in a hearing at any

time prior to the final determination if he deems himself disqualified for any

reason.

(4) Whenever a hearing officer withdraws or is disqualified, the Board shall

.appoint another in his place, without the need for such newly appointed officer

hearing evidence already presented in the case.

04.200 Discovery:

04.201 Agency Discovery

(1) Information

Upon request of the Board or the hearing officer, any party to the matter shall

furnish to the Board or the hearing officer any information which the party

may have which is relevant to the matter under consideration.

(2) Examination of Records

Upon request of the Board or the hearing officer, any party shall allow the

Board or any member, employee, or agent of the Board, when authorized by it

or the hearing officer, or the officer himself, to examine and copy any books,

papers, records or memoranda pertaining to the matter under consideration.

(3) Inspection of Premises

Upon request of the Board or the hearing officer, any party shall allow the

Board or any member, employee, or agent of the Board when authorized by

it or the hearing officer, or the hearing officer himself, to enter upon any of

the party's property for the purpose of obtaining information, examining any

physical facility, or examining records or conducting surveys or investiga-

tions.

(1) Parties other than the Board may obtain discovery by examination of

those public records which are in possession of the hearing officer or the

Board. Any party to a case may request the Board or the hearing officer to

exercise its powers in subsection 04.201(1) to obtain public information or to

issue a subpoena as provided in 05.300. The Board or the hearing officer may

grant or deny such requests. A party may request voluntary disclosure of

information by any other party.

(2) The deposition of any witness or party required in any proceeding

before the Board may be taken in the same manner and on the same notice

as in an action pending in the district courts of this state. Any person whose

deposition is taken shall receive the same fees and mileage as a witness in

a civil case in the district courts and such costs shall be paid by the party

at whose insistence the deposition is taken.

(3) Interrogatories may be issued, in any proceeding before the Board, in

the same manner as in an action pending in tbe district courts of this state.

04.300 Appearance: Interested parties shall enter their appearances at the

beginning of tbe hearing by giving their name and address and briefly stating

whether they appear in support of the complaint or in opposition thereto, or

otherwise. All such appearances shall be noted on the record with a notation

in whose behalf each appearance is made. Included in such appearances shall be

the names of the members of the Board's staff participating in the hearing of in-

vestigation and the names of any other persons appearing for the Board.

04.400 Continuance : Before or after any hearing, continuances may be granted

by the Board for good and sufficient cause. A motion for such a continuance shall

l>e made in writing, filed with the Board, and served on opposing counsel or parties.

Such motions shall be presented as far in advance of date fixed for hearing as pos-

sible to insure favorable action. The Board may affect a continuance before or

after any hearing upon its own motion. The hearing officer may grant oral or writ-

ten requests for continuances during any hearing.

04.500 Order of Procedure : In hearings on formal complaints and petitions,

fho complainant or petitioner, as the case may be, shall open and close. In hear-

ings on an older to show cause, the respondent shall open and close. When pro-

ceedings have been consolidated for hearing, the officer shall designate who shall

open and close. Intervenors shall follow the parties in whose behalf the interven-

tion is made; where the intervention is not in support of an original party, the

705

presiding officer shall designate at which stage such intervenor shall be heard. In

another party or participant, the foregoing order or presentation may be varied

by the officer.

04.600 Appeal to Board From Ruling of Hearing Officer — Offer of Proof : An

appeal may be taken to the Board from a ruling officer during the course of a

hearing only where extraordinary circumstances necessitate a prompt decision

by the Board to prevent detriment to the public interest.

Any offer of proof made in connection with an objection taken to any ruling

of the hearing officer rejecting or excluding proffered oral testimony shall consist

of a statement of the substance of the evidence which counsel contends would be

adduced by such testimony ; and, if the excluded evidence in documentary

or written form or reference to documents or records, a copy of such evidence

shall be marked for identification and shall constitute the offer of proof.

04.700 Oral Argument :

04.701 Before Officer : When, in the opinion of the hearing officer, time permits,

and the nature of the proceedings, the complexity or the importance of the issues

of fact or law involved, and the public interest warrant, such officer may, either on

on his own motion, or at the request of any party at or before the close of the taking

of testimony, allow and fix a time for the presentation of oral argument imposing

such limits of time on the argument as deemed appropriate. Such arguments

shall be transcribed and bound with -the transcript of testimony, if a transcript

is prepared.

04.702 Before Board : Request for authority to present oral argument before

the Board may be made at the time of any appeal taken during the hearing, at the

conclusion of the taking or evidence, or on brief, at such time as the Board may

allow. The Board will fix the time for oral argument, if allowed and notify the

parties.

04.800 Briefs, Proposed Findings of Fact and Conclusions of Law :

04.801 Each party to any proceeding may file proposed findings of fact and

conclusions of law, briefs, or memoranda of law ; provided, however, that the

Board or hearing officer may direct any party to file proposed findings of fact and

conclusions of law, briefs, or memoranda of law.

04.802 The Board or hearing officer shall fix the time for the filing and service

of proposed findings of fact and conclusions of law, briefs, or memoranda of law,

giving due regard to the nature of the proceeding, the magnitude of the record,

and the complexity or importance of the issues involved, and he shall fix the order

in which such documents shall be filed.

04.803 Should a party find that it is unable to meet the date for filing and

serving proposed findings of fact and conclusions of law, briefs, or memoranda

of law, such party shall so notify the Board or hearing officer and the other

parties in writing, therein setting forth the reasons for such inability together

with a request for an extension of time to a date certain for filing and service.

04.804 When it is ordered that proposed findings of fact and conclusions of

law, briefs, or memoranda of law be filed and served by the party initiating the

proceeding, and where such party fails to file and serve by the date specified with-

out complying with 04.803 above, the Board on its own motion or the motion of

any party may, in its discretion, dismiss the proceeding. Such failure in the case

of an intervenor, protestant, or respondent may be deemed a waiver of the right

to participate further in the proceeding, and the Board on its own motion or the

motion of any party may so order.

04.805 Exhibits should not be reproduced in a brief, but may, if desired, be

reproduced in an appendix to the brief. Every brief of more than twenty pages

shall contain a subject index, with page references, and the pages where the

citations appear. All briefs shall be as concise as possible.

04.806 All briefs shall be accompanied by certificate showing service upon all

parties or their attorneys who appeared at the hearing. One copy of each brief

shall be furnished for the use of the Board unless otherwise directed by the Board

or hearing officer.

04.900 Decisions of the Board : In all cases in which more than one member

or employee of the Board shall act as hearing officer, only an odd number of

members or employees shall so act. In all cases in which any matter shall be

heard by more than one hearing officer, sitting jointly, and in all cases in which

the Board shall rule on any issue, motion, or objection, the decision of the Board

shall be determined by vote.

706

R2 8-3 2-0 5 EVIDENCE

accordance with the practice in the district courts of this state, except to the ex-

tent that these rules conflict therewith. However the Board or the hearing officer

may waive the usual common law or statutory rules of evidence where such waiver

is necessary to ascertain the substantial rights of the public and interested

parties. When objection is made to the admissibility of evidence, the hearing

officer shall receive such evidence subject to later ruling by the Board.

05.200 Witnesses : Witnesses will be orally examined under oath before the

Board or hearing officer. Testimony may also be taken by deposition as provided

in 04.202(2) hereof. Written testimony of any witness may be received when

properly supported by the oral testimony of its author.

05.300 Subpena : Subpenas for the attendance of witnesses or for the production

of documentary evidence, unless directed by the Board upon its own motion, will

issue only upon application in writing to the Board, or to the hearing officer,

except that during a hearing such application may be made orally on the record

before the hearing officer who shall have the authority to determine the relevancy

and the materiality of the evidence sought and to issue such subpoenas if war-

ranted. Written application shall specify the general relevance and materiality

of the testimony or documentary evidence sought, including, as to documentary

evidence, specifications as nearly as may be of the documents desired and the

facts to be proved by them. The cost of serving any subpoena shall be paid by

the party requesting it. Any witness who is subpoenaed under the provisions of

this rule and who appears at the hearing shall receive the same fees and mileage

as witnesses in the district courts of this state, and such cost will be paid by

the part at whose insistence the witness appears. No witness fees will be allowed

except on a subpoena.

05.400 Stipulations : The parties to any proceeding or investigation before the

Board may, by stipulation in writing, filed with the Board or orally entered in the

record, agree upon the facts, or any portion thereof involved in the controversy,

and any such stipulation may be received in evidence at a hearing and when

so received, shall be binding upon the parties with respect to the matters stipu-

lated therein.

05.500 Documentary Evidence :

05.501 Where relevant and material matter offered in evidence by any party is

embraced in a book, paper, or a document containing other matter not material

or relevant, the party must designate the matter so offered. If the other matter

is in such volume as w T ould unnecessarily encumber the record, such book, paper

or document will not be received in evidence but may be marked for identifica-

tion and, if properly authenticated, the relevant and material matter may be

read into the record, or if the Board or hearing officer directs, a true copy of

such matter in proper form shall be received as an exhibit and like copies de-

livered by the party offering the same to all parties or their attorneys appearing

at the hearing who shall be afforded an opportunity to examine the entire book,

paper, or document and to offer in evidence in like manner any portions thereof

found to be material and relevant.

05.502 Any matter contained on a report or other official document on file with

the Board may be offered in evidence by merely identifying the report, document,

or other file containing the matter so offered.

05.600 Exhibits:

05.601 Exhibits must be on paper of good quality and so prepared as to be

plainly legible and durable whether printed, typewritten, mimeographed, photo-

graphed or otherwise, and if possible should be folded to a size not to exceed

8% by 14 inches. Whenever practicable, the sheets of each exhibit and line of

each sheet should be numbered, and if the exhibit consists of five or more sheets,

the first sheet or title page should contain a brief statement of what the exhibit

purports to Show with reference by sheet and line to illustrative or typical exam-

ple contained in the exhibit. Whenever practicable, documents produced by a

single witness shall he assembled and bound together suitably arranged and

Indexed so that they may he identified and offered as one exhibit. The source of all

material contained in any exhibit should he definitely shown.

05.602 Two copies of each exhibit will be furnished for the use of the Board

whenever it shall request; copies must also be available for all parties of record

in a proceeding

05.700 Official Notice : The Board or the examiner may take notice of any fact

or facts set forth in duly established regulations, annual reports, or any statisti-

707

which are judicially noticed by the courts of this state, as set forth in Section

31-10-02.

R2 8-3 2-0 6 REOPENING, REHEARING, REVIEW

06.100 Petition to Reopen : At any time after the conclusion of a hearing, but

before entry of the final order by the Board, any party to a proceeding may file

with the Board a petition to reopen the proceeding for the purpose of taking

additional evidence.

06.101 Such petition shall set forth clearly the facts claimed to constitute the

grounds requiring reopening of the proceeding, including the material changes of

fact or law alleged to have occurred since the conclusion of the hearing.

06.102 A copy of the petition to reopen shall be served by the petitioning party

upon all parties to the proceedings or their attorneys of record, and a certificate

to that effect will be attached to the petition when filed with the Board.

06.103 Within ten days following the service of any petition to reopen, any

other party to the proceeding may file with the Board his answer thereto. Any

party not filing such answer is in default thereof and shall be deemed to have

waived any objection to the granting of such petition.

If, after the hearing in a proceeding, either before or after the issuance of its

final order, or if no hearing has been held, only after the issuance of its final

order, the Board shall have reason to believe the conditions of fact or law have

so changed as to require, or that public interest requires, the reopening of such

proceeding, the Board may issue an order for the reopening of the same.

The Board shall act on any petition to reopen within ten days of receipt

thereof and may, in its discretion, hear oral argument on any such petition.

06.200 Petition for Rehearing :

06.201 A petition for rehearing of a proceeding must be filed within fifteen

days after a copy of the final order has been sent to the petitioning party by the

Board.

06.202 Such petition shall state concisely the alleged errors in the Board's de-

of the Board is sought to be vacated, reversed, or modified by reason of matters

that have arisen since the hearing and decision or order, or by reason of a conse-

quence that would result from the compliance therewith, the matters relied upon

by the petitioner shall be set forth in the petition.

06.203 A petition for rehearing shall be served by the petitioner upon all

parties to the proceeding or their attorneys of record.

06.204 Within ten days following the service of such petition, any party to the

proceeding may file with the Board his answer thereto. Any party not filing such

an answer is in default thereof and shall be deemed to have waived any objection

to the granting of such petition.

06.205 The Board shall act on any petition for rehearing within ten days of

receipt thereof and may, in its discretion, hear oral argument on such petition.

06.300 Appeal : Any party to a proceeding conducted pursuant to these rules or

other provisions of Chapter 28-32 shall have the right of appeal, in the manner

provided in Chapter 28-32, from any adverse ruling by the Board. Such appeal

shall not be a trial de novo but shall be limited to the hearing record and to those

issues specified in Section 28-32-19.

Utah

State of Utah, Department of Natural Resources, Division of Water

cloud seeding resolution

Whereas, the Utah Cloud Seeding Act of 1973, Laws of Utah, Chapter 193,

authorizes the Utah Division of Water Resources to adopt such rules and regula-

tions as are necessary in the performance of its powers and duties pursuant to

the Cloud Seeding to Increase Precipitation Act and

Whereas, after careful deliberation and extensive study, the Utah Division of

Water Resources has prepared such rules and regulations and has circulated

same so far as practical to interested governmental bodies, groups, and indi-

viduals for their information and comments ; and

Whereas, the Utah Division of Water Resources has considered and deliberated

on the form and content of each proposed rule in the light of any and all sugges-

tions from its staff, and other interested persons ; and

708

ber 26, 1973, considered the proposed Rules and Regulations Relating to Cloud

Seeding Activities ; Now, therefore, be it

Resolved, That the Utah Division of Water Resources adopt the following

Rules and Regulations relating to the Utah Cloud Seeding Act of 1973 on an

interim basis, until such time as experience shows that the Rules should be

modified.

I hereby certify that the above Resolution was adopted by the Utah Division

of Water Resources on September 26, 1973.

Daniel F. Lawrence,

Director, Utah Division of Water Resources.

Definitions

1. "Act" or "Cloud Seeding Act" means the 1973 Cloud Seeding To Increase

Precipitation Act, Laws of Utah, Chapter 193.

2. "Cloud Seeding" or "Weather Modification" means all acts undertaken to

artificially distribute or create nuclei in cloud masses for the purposes of altering

precipitation, cloud forms, or other meteorological parameters.

3. "Cloud Seeding Project" means a planned project to evaluate meteorological

conditions, perform cloud seeding, and evaluate results.

4. "Board" means the Utah Board of Water Resources, which is the policy

making body of the Utah Division of Water Resources.

5. "Director" means the Director of the Utah Division of Water Resources.

6. "Utah Division of Water Resources" means the Director and staff of the Utah

Division of Water Resources.

7. "License" means a certificate issued by the Utah Division of Water Resource??

certifying that the holder has met the minimum requirements in cloud seeding

technology set forth by the State of Utah, and is qualified to apply for a permit

for a cloud seeding project.

8. "Licensed Contractor" means a person or organization duly licensed for cloud

seeding activities in the State of Utah.

9. "Permit" means a certification of project approval to conduct a specific cloud

seeding project within the State under the conditions and within the limitations

required and established under the provision of these Rules.

10. "Sponsor" means the responsible individual or organization that enters into