454 Neb. Admin. Code, ch. 6, § 003

Current through September 17, 2024

Section 454-6-003 - PETITION FOR DECLARATORY ORDER

003.01.GENERALLY. A request for a declaratory order must be made by a petition that meets the requirements of this section.

003.02.WHO MAY FILE. Any person may petition the Department for issuance of a declaratory order regarding the applicability to specified circumstances of a statute, rule, or order which is within the primary jurisdiction of the Department.

003.03.WHEN ORDERS APPROPRIATE. A declaratory order may be requested on the applicability of a statute, rule, or order enforced by the Department. "Applicability" refers to the appropriateness of the relation of the law to the person, property, or state of facts, or its relevance under the circumstances given. It may include such questions as whether the law applies at all, to whom it applies, when it applies, how it applies, or which law applies. Considerations as to whether issuance of a declaratory order is appropriate include:

003.03(A). A declaratory order may be requested only on the applicability of existing statutes and rules;

003.03(B). A declaratory order may be requested to obtain a determination of proposed conduct, not to obtain a determination of the effect of conduct that has already occurred;

003.03(C). A declaratory order is not a mechanism for review or appeal of a decision made by the Department in a contested case;

003.03(D). A declaratory order may not be requested to obtain a declaration by the Department that a statute or rule is unconstitutional or that a rule of the Department is invalid; and

003.03(E). A declaratory order may not be issued by the Department that would substantially prejudice the rights of a person who would be a necessary party and who does not consent in writing to the determination of the matter by a declaratory order proceeding.

003.04.FORM OF PETITION. A petition for declaratory order shall be in the form of a pleading (see Attachment 1 to this rule incorporated by reference to this rule) which shall contain each of the following:

003.04(A). A caption, which shall include:

003.04(A)(i). STATE OF NEBRASKA, DEPARTMENT OF NATURAL RESOURCES;

003.04(A)(ii). A heading specifying the subject matter and the name of the petitioner; and

003.04(A)(iii). The name of the pleading: PETITION FOR DECLARATORY ORDER;

003.04(B). The statements required in subsection 003.05 of this chapter;

003.04(C). The signature of the petitioner, or when represented by an attorney, the signature of the attorney; and

003.04(D). The name and address of the petitioner, and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.

003.05.CONTENTS OF PETITION. To be considered, the petition shall include the following:

003.05(A). The name and address of the petitioner;

003.05(B). The name and address of all persons or entities, known to the petitioner, who may have a specific interest in the applicability of the statute, rule, or order or who may be adversely affected by the issue sought to be resolved by the petitioner;

003.05(C). The statute, rule, or order upon which the petitioner seeks issuance of a declaratory order;

003.05(D). A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;

003.05(E). All propositions of law or contentions asserted by the petitioner;

003.05(F). A demand for the relief to which the petitioner alleges entitlement. The petition shall state the petitioner's position as to how the Department should rule and why the Department should rule in the manner requested; and

003.05(G). Any documents pertinent to the petition that the petitioner wishes to be considered by the Department.

003.06. The petition shall be subscribed and verified by the petitioner. If the petitioner is a corporation, political subdivision, or other entity, then the petition shall be subscribed and verified by a duly authorized agent of the petitioning entity.

003.07.SAMPLE PETITION. The petitioner may use the sample form of a petition which is Attachment 1 and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of Attachment 1 so long as the requirements of subsections 003.04, 003.05, and 003.06 of this chapter are satisfied.

003.08.WRITTEN CONSENTS. The petitioner shall also attach to the petition any written consents obtained from any necessary party that the petition may be determined by use of a declaratory order proceeding.

454 Neb. Admin. Code, ch. 6, § 003

Amended effective 8/19/2023