2 Colo. Code Regs. § 406-17-1709

Current through Register Vol. 48, No. 1, January 10, 2025

Section 2 CCR 406-17-1709 - ARBITRATION

A. If the Division cannot agree with the claimant on normal historic levels of big game or any element of a settlement (such as the extent of damage, the numbers or species of big game involved) such disagreement may be decided by the arbitration process provided for in Section 33-3-104(1)(d) or 33-3-203(2), C.R.S. Arbitration of non-forage damage claims pursuant to Section 33-3-104(1)(d) must be requested prior to review of the claim by the Commission. Subject to the provisions of Article 3 of Title 33, C.R.S., and the following, arbitration proceedings shall be conducted pursuant to the "Uniform Arbitration Act of 1975," part 2 of Article 22 of Title 13, C.R.S.

B. The arbitrator chosen by the claimant and the arbitrator chosen by the Division shall be non-neutral members of the arbitration panel; and the third arbitrator chosen by these two arbitrators (or by the court as the case may be) shall be a neutral member of the panel.

C. The claimant and the division shall enter into a written arbitration agreement for submission to the arbitration panel. Said agreement shall include:

1. A statement of the parties setting forth all facts relevant to the damage claim upon which the parties agree.

2. A statement of the parties identifying statutes, regulations, and other law which the parties agree are applicable to the claim.

3. A statement of the issues of fact upon which there is disagreement between the parties, including a list of witnesses and other evidence which each intends to introduce to the panel in support of their positions.

4. A statement of the legal issues upon which there is disagreement between the parties. Each party shall submit a brief written legal argument, including citation to statutes, regulations, court decisions and other appropriate law, supporting their position.

5. A statement setting forth the procedures the parties have agreed upon for presentation of the claimant's and division's factual evidence and legal argument. Generally, the panel shall proceed in accordance with these regulations. Any agreement to proceed in a manner inconsistent with these regulations shall be subject to approval of the arbitration panel.

6. The panels authority to render decisions deciding issues of fact and law shall be limited to those matters upon which the parties have agreed in the written agreement are in dispute and any issues incidental to those matters.

D. The panel shall render its decision in accordance with the provisions of article 3 of title 33 of the Colorado Revised Statutes and Chapter 17 of the Commission's wildlife regulations.

E. Except as may otherwise be approved or required by the arbitration panel, the arbitration hearing shall be conducted as follows.

1. The hearing shall be conducted by all three arbitrators who shall act by majority vote.

2. The Division shall be responsible to make a recording of the arbitration hearing and maintain a copy of all exhibits presented to the panel for consideration.

3. The claimant shall have the burden of proving all elements of the claim for damages pursuant to the provisions of Article 3 of Title 33, C.R.S., and of this Chapter 17 of the Commission's regulations. The Division shall have the burden of proving any affirmative defenses.

4. Evidence

a. Testimonial and evidentiary rulings shall favor the reception of any and all evidence which may be probative and relevant to the decision; but unduly repetitious, irrelevant, or incompetent evidence may be limited or excluded. The arbitrators shall not give undue weight to hearsay or other improper or unsubstantial evidence.

b. The panel may take notice of general, technical or scientific facts within its knowledge, but only if the fact so noticed is brought to the attention of the parties before final decision and each party is afforded an opportunity to controvert the fact so noticed.

c. At the conclusion of each witness' testimony, the other party may then cross-examine such witness or witnesses. The arbitrators may cross-examine any witness called.

d. Unless otherwise ordered by the panel, five (5) copies of each exhibit shall be submitted (one for each panel member's use, one for the record to be maintained by the Division, and one for the opposing party's use).

5. The hearing shall proceed in the following order:

a. Call to order, introductory remarks by arbitrators.

b. Presentation by the Division of all documents that have been filed with the Division by the claimant in making his claim and any prepared by the Division in response to the claim. They shall include, to the extent they exist, but are not limited to all 10-day notices of damages, the claimant's proof of loss form with supporting documentation, investigator's report, the Division's recommendation to the Wildlife Commission. The Division shall also report how far the claim has progressed through the administrative claims process and the status of the claim in that process at the time arbitration was requested.

c. Presentation of any stipulation or agreements of the parties.

d. Opening statement by the claimant, including a brief statement of what it will prove and the relief requested.

e. Opening statement by the Division, including a brief statement of what it will prove and of defenses to be presented to claim.

f. Presentation of evidence in support of the claim by the claimant.

g. Presentation of the Division's evidence contesting the claim, including defenses.

h. Rebuttal by the claimant.

i. Closing statements by the parties.

j. Adjournment.

6. Proved further, however, that the panel may at any time consider any motion or make any ruling in the interest of fairness, completeness and economy of the proceedings which ruling will not result in substantial prejudice to a party's right to present its case.

7. The panel shall issue its written decision within ten (10) days after adjournment of hearing. Each decision issued pursuant to an arbitration hearing shall include a statement of findings and conclusions upon all the material issues of fact, law or discretion considered and state the sanction or relief granted or denied.

8. No exparte communication with or by the neutral arbitrator may occur during the pendency of a hearing.

F. The Division shall designate a Division employee to act as the case administrator, who shall arrange for meeting place for the arbitration hearing and recording of the hearing, issue subpoenas for witnesses at the request of the panel, and otherwise assist the panel in the performance of its duties.

2 CCR 406-17-1709

40 CR 23, December 10, 2017, effective 1/1/2018

42 CR 23, December 10, 2019, effective 1/1/2020

46 CR 11, June 10, 2023, effective 7/1/2023