Administrative review of commission rulings - Formal hearings
N.D. Cent. Code § 38-14.1-30
in effect38-14.1-30. Administrative review of commission rulings - Formal hearings
1. Within thirty days after a permit applicant is notified of a ruling by the commission
pursuant to section 38-14.1-20, or after an operator or permittee is issued a notice or
order pursuant to subdivision a or b of subsection 1 of section 38-14.1-28, or after the
commission disapproves an application for release of all or a portion of a performance
bond under section 38-14.1-17, or after the director of the state historical society
renders a decision on an application for approval of a cultural resources mitigation
plan under section 38-14.1-10 and subdivision u of subsection 1 of section 38-14.1-14,
the applicant, operator, or permittee, or any person with an interest that is or may be
adversely affected by the ruling, notice, or order or by an order modifying, vacating, or
terminating a notice or order, may request and initiate formal hearing procedures
before the commission. The right to the administrative review is forfeited if not
requested within thirty days of the notification of any ruling or issuance of a notice of
violation or order as provided in this subsection. The filing of an application for review
under this subsection does not operate as a stay of any order or notice.
2. Following the issuance pursuant to subdivision c of subsection 1 of section 38-14.1-28
of an order to show cause as to why a permit should not be suspended or revoked, the
commission shall hold a public hearing pursuant to procedures specified in
subsection 3 on such order to show cause. After such public hearing, the commission
shall issue a written decision concerning suspension or revocation of the permit
pursuant to subdivision g of subsection 3.
a. If the commission issues an order of permit suspension, it shall subsequently
reinstate the permit in accordance with procedures established by commission
regulations, upon a showing of compliance with the condition for reinstatement as
specified in the suspension order.
b. If the permittee fails to comply with the conditions for reinstatement as specified
in an order of suspension, the commission shall, pursuant to procedures
established by commission regulations, issue an order revoking the permit and
forfeiting the performance bond to the state of North Dakota.
c. If the commission revokes a permit, all surface coal mining operations must
cease immediately in the permit area.
3. Administrative hearings pursuant to this section must be conducted in accordance with
the provisions of chapter 28-32 and the following procedures:
a. A hearing must be held within thirty days of a request for a formal hearing under
subsection 1 or the issuance of an order to show cause under subsection 2.
b. The commission shall cause an investigation to be made as it deems appropriate
in connection with any hearing under this section. Evidence taken at a hearing
under this section held in connection with a permit application ruling under
section 38-14.1-20 may include, but is not limited to, site inspections of the land
to be affected and other surface coal mining operations carried on by the
applicant for a permit in the general vicinity of the proposed operation.
c. Hearings held pursuant to this section are subject to judicial review in accordance
with the provisions of chapter 28-32. Any requirements, procedural or otherwise,
specifically imposed under this section which are in conflict with the provisions of
chapter 28-32 shall supersede the provisions of chapter 28-32.
d. All parties to any informal conference held in reference to a permit application or
application for release of performance bond under section 38-14.1-19, and all
persons who submitted comments or written objections to the application for
release of performance bond or the permit application under sections 38-14.1-17
and 38-14.1-18 respectively, and the permittee and other interested parties in
hearings to review enforcement actions taken pursuant to section 38-14.1-28
must be given written notice of the date, place, and time of the hearing at least
twenty days prior to the hearing under this section. In case of an emergency, the
notification period may be shortened, but in no event may notice be given less
than five days prior to the hearing.
e. In addition to any notice required by chapter 28-32, notice of hearings under this
section must be published in the official newspaper of each county in which the
subject matter of the hearing is located and in other daily newspapers of general
circulation in the general vicinity of such counties, at least once a week for two
successive weeks prior to the hearing. In case of an emergency, the publication
period may be shortened, but in no event may notice be published less than five
days prior to the hearing in daily newspapers of general circulation in the general
locality of the subject matter involved.
f. No person who presides at an informal conference under section 38-14.1-19 in
reference to a permit application may preside at a formal administrative hearing
under this section or participate in making the final administrative decision
pursuant to chapter 28-32.
g. All final orders of the commission under this section, except those issued under
subsection 4, must be issued pursuant to the following procedures:
(1) Whenever a formal hearing has been held, the commission shall issue a
written order pursuant to chapter 28-32, provided that the decision must be
issued within thirty days after the hearing. The commission shall have no
discretion to increase such time period.
(2) In the event that no one with standing to request an administrative hearing
under subsection 1 requests such a hearing, the commission shall establish
whether or not a permit should be granted or suspended or revoked; or, in
enforcement proceedings, whether the violation has in fact occurred; or, in
connection with an application for release of a bond, whether the application
should be approved or denied, in whole or in part; and shall issue a final
order as appropriate pursuant to rules adopted by the commission.
4. Pending completion of any investigation and hearing procedures being conducted
under this section in connection with a request for review of a ruling on a permit
application pursuant to section 38-14.1-20 or in connection with any notice or order
issued pursuant to subdivision a or b of subsection 1 of section 38-14.1-28 and at any
time prior to a decision by the commission on the request for review of a ruling on a
permit application or a request for review of a notice or order, the permittee or any
person with an interest which is or may be adversely affected by such notice, order, or
the issuance of a permit may file with the commission a written request for temporary
relief from such notice or order or permit decision together with a detailed statement
giving reasons why such temporary relief should be granted. The commission shall
issue an order granting or denying such relief expeditiously as provided by
commission regulations. Provided, if the permittee or person with an interest which is
or may be adversely affected requests relief from a cessation order, the commission's
order under this subsection must be issued within five days of receipt of such request.
The commission may grant such relief, under such conditions as it may prescribe, if:
a. A hearing on the request for temporary relief has been held in the locality of the
permit area, providing all parties with an opportunity to be heard and the
requirements of subdivisions b and c have been met;
b. The permittee or person shows that there is substantial likelihood that the findings
of the commission in the formal administrative proceedings being conducted
pursuant to this section will be favorable to the permittee or person; and
c. Such relief will not adversely affect the health or safety of the public or cause
significant, imminent environmental harm to land, air, or water resources.
An order granting or denying temporary relief pursuant to this subsection is final and
not subject to review in any subsequent administrative or judicial proceeding since any
temporary relief granted is in effect only until the investigation and hearing procedures
of this section are completed.
5. Nothing in this section may be construed to eliminate any additional enforcement
rights or procedures which may be available under state law but are not specifically
enumerated herein.
Source: Open US Law by Vaquill AI (CC BY 4.0)URL: https://ndlegis.gov/cencode/t38c14-1.pdf#nameddest=38-14p1-30Fetched: 10/16/2026