West Virginia Code of State Rules › Agency 49 - Surface Mine Board › Title 49 - PROCEDURAL RULE WEST VIRGINIA SURFACE MINE BOARD › Series 49-01 - Procedural Rules Governing Appeals Before The Surface Mine Board › Section 49-1-9 - Evidentiary Hearings

Current through Register Vol. XLI, No. 28, July 12, 2024
9.1. Notice of
				Evidentiary Hearing. The board shall give each party to any evidentiary hearing
				at least ten (10) days written notice of such hearing. The notice shall be served
				by registered or certified mail or by any proper law-enforcement
				officer.
9.2. Continuance of
				Hearings. After a hearing date has been set, a continuance will not be granted by
				the board except upon a showing of good cause. A party who desires a continuance
				shall, immediately upon receipt of a notice of hearing, or as soon thereafter as
				practicable, file a written motion with the board stating in detail the reasons
				why a continuance is necessary. The motion shall be filed at least five (5) days
				prior to the date of hearing. The board may at any time order a continuance upon
				its own motion.
9.3. Quorum. Any
				evidentiary hearing shall be conducted by a quorum of the board, but the parties
				may by stipulation agree to take evidence before any one or more members of the
				board or before a hearing examiner employed by the board.
9.4. Place of Hearing. Unless the board
				determines otherwise, evidentiary hearings shall be held in the board's offices
				located at 601 57th Street, S.E. Charleston, West
				Virginia.
9.5. Conduct of Hearings.
				All appeal hearings shall be open to the public, and shall be conducted in
				accordance with W. Va. Code §29A-5 et seq. All parties to a hearing, their
				legal counsel, and spectators, shall conduct themselves in a respectful manner.
				Public displays of any kind at hearings shall not be permitted. The board may, at
				its discretion, recess or continue any hearing in which the parties, legal
				counsel, witnesses or spectators conduct themselves in a disrespectful,
				disorderly or contemptuous manner which interferes with or prevents the proper
				conduct of such hearing.
9.6.
				Stipulations. Written stipulations by the parties to questions of fact may be
				filed with the board before the hearing of an appeal or may be read into the
				record at the time the hearing is held.
9.7. Testimony at Hearing. Testimony in any
				hearing before the board will be made on the record, and shall be given under
				oath.
9.8. Presentation. The board
				shall hear the appeal de novo. Each party will be given an opportunity to make an
				opening statement. The appellant shall open the hearing and present testimony and
				offer exhibits that support the notice of appeal. The appellant's witnesses shall
				be subject to cross-examination by any other party to the appeal or by the board.
				At the conclusion of the appellant's case, the appellee may then present
				testimony and offer exhibits. After initial presentations have been made, both
				the appellant and the appellee may present rebuttal evidence on the issues in the
				case, providing that such evidence is not cumulative, repetitive or immaterial to
				the case. After the conclusion of the presentation of evidence, the parties will
				be given the opportunity to present closing arguments.
9.9. Exhibits. Any item, including photographs,
				to be presented as an exhibit shall be separately numbered and in a sufficient
				number of legible, complete copies to provide one (1) copy to each party as well
				as one (1) copy to the board and one (1) for the record. All copies shall be
				distributed upon or prior to request for admission. It is recommended that large
				maps used for visual presentation be reduced to approximately one-half (½)
				scale and similarly colored or coded for distribution in lieu of the larger map
				which shall be for the record. If any map or other document is marked upon or
				otherwise changed during presentation and testimony, the party submitting the
				evidence shall correspondingly mark or change each other copy within twenty-four
				(24) hours of the presentation.
9.10. Briefs. In addition to the presentation
				of oral argument, the board may require the parties to file written briefs. The
				board may require the filing of briefs before or after the taking of evidence.
				The parties shall file the original and seven (7) copies of the brief with the
				secretary of the board, and shall serve a copy of the same on all other parties
				as required by these procedural rules. The original copy of the brief shall be
				accompanied by a copy of each decision, treatise, or periodical cited. Leave to
				file briefs amicus curiae may also be granted by the board.
9.11. Proposed Findings of Fact and Conclusions
				of Law. In accordance with W. Va. Code §29A-5 et seq., prior to the entry of
				any final order or final decision, any party may propose findings of fact and
				conclusions of law for the board's consideration. All such findings of fact and
				conclusions of law shall be separated as such and shall be set out by numbered
				paragraph. Unless otherwise ordered by the board, all such proposed findings of
				fact and conclusions of law shall be filed within fifteen (15) days of the
				conclusion of the evidentiary hearing.
9.12. Service and Publication of Final Orders.
				A copy of the final order or decision, together with the board's findings of fact
				and conclusions of law, shall be served upon each party and his or her attorney
				of record, if any, in person or by registered or certified mail. Each final order
				or decision issued by the board shall be filed with the secretary of state for
				publication in the state register in accordance with W. Va. Code
				§
									29A-2-9.