DEPARTMENT OF AGRICULTURE Agriculture Commissioners Office RULES PERTAINING TO ADMINISTRATIVE HEARINGS CONDUCTED WITHIN THE COLORADO DEPARTMENT OF AGRICULTURE AND TO PETITIONS FOR DECLARATORY ORDERS 8 CCR 1207-2 [Editor’s Notes follow the text of the rules at the end of this CCR Document.] _________________________________________________________________________ STATEMENT OF BASIS AND PURPOSE The rules pertaining to administrative hearings conducted within the Colorado Department of Agriculture are adopted pursuant to the powers granted to the Department, the State Agricultural Commission, and the Commissioner of Agriculture to conduct hearings including Sections 35-1-104(1)(c) and 35-1- 106(1)(h), C.R.S. (1998) and the powers granted to the Colorado State Board of Stock Inspection Commissioners to conduct hearings including Sections 12-11-101 and 35-41.5-112 and 113, and the powers granted in individual Articles pertaining to rulemaking, including Sections 35-4-116, 35-9-118(2), 35-10-118(2), 35-11-104, 35-11.5-104, 35-14-107(1)(o), 35-24.5-106, 35-25-105, 35-26-111, 35-27- 114(1)(b), 35-27.5-103, 35-28-116(1), 35-33-104, 35-40-101(2), 35-41.5-105, 35-50-101, 35-52-118, 35- 53.5-103, 35-55-113(6), 35-59-110(2), 35-60-109, 35-80-109, 12-16-117, and 12-16-210, C.R.S. (1998) as well as the provisions of Section 24-4-105, C.R.S. (1998). The rules pertaining to petitions for declaratory orders are adopted pursuant to Section 24-4-105(11), C.R.S. (1998).

The purposes of these rules are: to define by rule the procedures which will be applicable to administrative hearings conducted within the Colorado Department of Agriculture in order to ensure that such hearings are conducted fairly and in an orderly fashion; and to define the procedure which will be applicable to petitions for declaratory orders.

Part 1. Scope of rules These rules apply to the conduct of all cases within the Colorado Department of Agriculture. These rules do not apply to any cases referred to the Colorado Department of Personnel, Division of Administrative Hearings, which Division has adopted its own rules of procedure. Part 2. Definition and construction of terms A. As used in these rules, the following words have the following meanings:

1. 1. “Agency” means any board, bureau, commission, division, section or officer of the Colorado Department of Agriculture.
2. 2. “Expanded media coverage” means any media recording or broadcasting of proceedings by the use of television, radio, photographic, or recording equipment.
3. 3. “Hearing Officer” means the individual, or the group of individuals, assigned to hear the case.

B. In applying these rules:

1. 1. Words in the singular shall include the plural and words in the plural shall include the singular. Code of Colorado Regulations 1 2. These rules shall be liberally construed to secure the just, speedy and inexpensive determination of all matters presented.
2. 3. Appendices to these rules are considered to be part of these rules. Part 3. Entry of appearance and withdrawal of counsel.

A. No attorney shall appear in any matter before the Hearing Officer until an appearance has been entered by filing an Entry of Appearance or signing a pleading. An Entry of Appearance shall state the identity of the party for whom the appearance is made, the attorney's office address and telephone number and the attorney's registration number. Nothing contained herein shall preclude an out of state attorney from being admitted in accordance with C.R.C.P. 221.1.

B. An attorney may withdraw from a case only upon order of the Hearing Officer. Approval to withdraw shall not be granted until the attorney seeking to withdraw has made reasonable efforts to give actual notice, at least 20 days prior to any the hearing or other scheduled appearance, to the client that:

1. 1. the attorney wishes to withdraw;
2. 2. the client has the burden of keeping the Hearing Officer informed of the address where notices, pleadings, or other papers may be served;
3. 3. the client has the obligation to prepare for hearing or to hire other counsel to prepare for hearing;
4. 4. if the client fails or refuses to meet these burdens, the client may suffer an adverse determination in the hearing;
5. 5. the holding of further proceedings will not be affected by the withdrawal of counsel. The notice shall set forth the dates set for any further proceedings;
6. 6. pleadings and papers in the case may be served upon the client at the client's last known address; and 7. the client has the right to object within 15 days of the date of notice. The above notification must be in writing and filed with the Hearing Officer along with a statement showing the manner in which such notification was given to the client and setting forth the client's last known address and telephone number.

C. The client and opposing counsel shall have 15 days from the date of the notice to object to a withdrawal. After withdrawal the client shall be notified by the withdrawing attorney of the effective date of the withdrawal, and all pleadings, notices or other papers may be served on the party directly by mail at the last known address of the party until new counsel enters an appearance. Part 4. Files and hearings open to the public As provided in the Colorado Open (Public) Records Act, all files shall be open to public inspection, unless otherwise prohibited by law, regulation or court order, or when upon motion and order the agency or Hearing Officer otherwise has the authority or discretion to prohibit public inspection. All hearings shall be open to the public unless prohibited by law, regulation or court order or closed by order of the Hearing Officer or the agency.

Part 5. Expanded media coverage Code of Colorado Regulations 2 Expanded media coverage of cases before the Hearing Officer may be permitted at the discretion of the Hearing Officer under such conditions as the Hearing Officer may designate. In determining whether expanded media coverage should be permitted, the Hearing Officer shall consider the following factors:

A. Whether there is a reasonable likelihood that expanded media coverage would interfere with the rights of the parties to a fair hearing;

B. Whether there is a reasonable likelihood that expanded media coverage would unduly detract from the solemnity, decorum and dignity of the proceedings;

C. Whether expanded media coverage would create adverse effects that would be greater than those caused by traditional media coverage.

Part 6. Rules of Civil Procedure.

To the extent practicable, and unless inconsistent with these rules, the Colorado Rules of Civil Procedure (“C.R.C.P.”) apply to matters before the Hearing Officer. However, C.R.C.P. 16, does not apply. Unless the context otherwise requires, whenever the word “court” appears in a rule of civil procedure, that word shall be construed to mean a Hearing Officer.

Part 7. Rules of Evidence To the extent practicable the Colorado Rules of Evidence applicable in civil cases apply in all hearings conducted by the Hearing Officer. Unless the context requires otherwise, whenever the word “court”, “judge” or “jury” appears in the Colorado Rules of Evidence such word shall be construed to mean a Hearing Officer. A Hearing Officer has the discretion to admit evidence not admissible under such rules, as permitted by law.

Part 8. Ex parte communications With the exception of scheduling or other purely administrative matters a party or counsel for a party shall not initiate any oral communication with a Hearing Officer pertaining to a matter before the Hearing Officer unless prior consent of all other parties or their counsel has been obtained. Copies of all pleadings or correspondence filed with the Hearing Officer by any party shall be served upon all other parties or their counsel.

Part 9. Computation and modification of time In computing any period of time prescribed or allowed by these rules, the provisions of C.R.C.P. 6(a) and 6(e) shall apply. The time periods of these rules may be modified at the discretion of the Hearing Officer. Any pleadings or other documents received by the Hearing Officer after 5:00 p.m. shall be deemed to be filed the next business day.

Part 10. Filing of pleadings and other papers The originals of all pleadings and other papers filed in a case before the Hearing Officer shall be filed with the Hearing Officer.

Part 11. Filing of pleadings and other papers by facsimile copy A. The facsimile capabilities of the Hearing Officer are limited. Parties are encouraged to avoid filing pleadings by facsimile copy, except when reasonably required by time constraints. Pleadings in excess of 10 pages may not be filed by facsimile copy unless prior-authorized by the Hearing Officer.

Code of Colorado Regulations 3 B. Facsimile copies shall be accompanied by a cover sheet which states the title of the document, case number, number of pages, identity and voice telephone number of the transmitter and any instructions.

C. Facsimile copies received by the Hearing Officer after 5:00 p.m. will be considered to have been filed on the next business day.

D. The original pleading shall be filed within 5 business days of all pleadings filed by facsimile Part 12. Service of pleadings and other papers Service of pleadings or other papers on a party or on an attorney representing a party may be made by hand delivery, by mail to the address given in the pleadings, or to the party's last known address. When a party is represented by an attorney, service shall be made on the attorney. Part 13. Determination of motions A. Any motions, except those made during hearing or when the Hearing Officer deems an oral motion to be appropriate, involving a contested issue of law shall be supported by a recitation of legal authority either incorporated into the motion or set forth in a separate memorandum brief. If the moving party chooses to submit a brief rather than incorporate the recitation of legal authority into the motion, the brief shall be filed with the motion, except for motions under C.R.C.P. 12, for which motions an additional 10 days to file a separate brief will be allowed. A responding party shall have 10 days or such lesser or greater time as the Hearing Officer may allow in which to file and serve a responsive brief. Reply briefs will be permitted only upon order of the Hearing Officer. If so ordered, the reply brief must be filed within 5 days of the order of the Hearing Officer.

B. If a party files a motion which does not involve a contested issue of law, the opposing party will have 10 days, or such lesser or greater time as the Hearing Officer allows, in which to file a response. The moving party will not be permitted to file a reply unless ordered by the Hearing Officer. If so ordered, the reply must be filed within 5 days of the order of the Hearing Officer.

C. If facts not appearing of record before the Hearing Officer may be considered in disposition of the motion, the parties may file affidavits at the time of filing the motion or responsive or reply brief. Copies of such affidavits and any documentary evidence used in connection with the motion shall be served on all other parties.

D. If the moving party fails to incorporate legal authority into the motion and fails to file a separate brief with the motion, the Hearing Officer may deem the motion abandoned and may enter an order denying the motion. Failure of the responding party to file a responsive brief may be considered a confession of the motion.

E. If possible, motions will be determined upon the written motion and briefs submitted. The Hearing Officer may order oral argument or evidentiary hearing on the Hearing Officer's own motion or on request of a party, in which event all parties will be notified of such order. If any party fails to appear at an oral argument or hearing without prior showing of good cause for non-appearance, the Hearing Officer may proceed to hear and rule on the motion.

F. An expedited hearing on any motion may be held at the instance of the Hearing Officer. If any party requests that a motion be determined immediately with or without a hearing, or that a hearing be held on a motion in advance of a previously set motions date, that party shall:

1. 1. Inform the Hearing Officer of said request.

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1. 2. Contact all other parties, determine their position on the motion, and indicate on the face of the motion whether other parties oppose the motion and whether they will request a hearing on the motion.
2. 3. If a hearing is desired by any party and authorized by the Hearing Officer the moving party, upon advance notice to the Hearing Officer, shall notice in all other parties to set the matter directly with the Hearing Officer on an expedited basis.

G. Any defense enumerated in C.R.C.P. 12 may be made by motion. All such motions shall be filed within 10 days after the answer required by the Administrative Procedure Act. Any such motion not filed within the time limits established by this section or by the Hearing Officer, except motions asserting a lack of jurisdiction over the subject matter, shall be waived. Part 14. Consolidation A party seeking consolidation of two or more cases shall file a motion to consolidate in each case sought to be consolidated. If more than one Hearing Officer has been assigned to the cases sought to be consolidated, the motion shall be determined by the Hearing Officer assigned to the case first filed. If consolidation is ordered, all subsequent filings shall be in the case first filed and all previous filings related to the consolidated cases shall be placed together under that case number. Consolidation may be ordered on a Hearing Officer's own motion.

Part 15. Discovery A. To the extent there is no conflict with these rules, C.R.C.P. 26 through 37 apply to proceedings within the scope of these rules, except to the extent that they provide for or relate to disclosures, numerical limitations on discovery requests, or the time when discovery can be initiated. Discovery may be conducted by any party without authorization of the Hearing Officer.

B. C.R.C.P. 16 does not apply to proceedings before the Hearing Officer.

C. In addition to the requirements of C.R.C.P. 36, a request for admission shall explicitly advise the party from whom an admission is requested that failure to respond to the request within 30 days after service may result in all of the matters stated in the request being deemed established for the purpose of the hearing. The request for admission shall further state that if the party to whom the request is directed fails to appear at the hearing, any controverted factual matter may be resolved adversely to that party on the basis of such admission. The failure to comply with this rule may result in the matters contained in the request being deemed denied. Part 16. Prehearing procedure and prehearing conference A. C.R.C.P. 16 does not apply to proceedings before the Hearing Officer.

B. Whether a formal prehearing conference is held shall be discretionary with Hearing Officer.

C. Unless otherwise ordered by the Hearing Officer, in cases in which no prehearing conference is held, each party shall file with the Hearing Officer and serve on each other party a prehearing statement in substantial compliance with the form as outlined in Appendix A to these rules. Prehearing statements shall be filed and served no later than 20 days prior to the date set for hearing or such other date established by the Hearing Officer. Exhibits shall not be filed with prehearing statements, unless ordered by the Hearing Officer. Exhibits shall be exchanged between the parties by the date on which prehearing statements are to be filed and served or on such other date as ordered by the Hearing Office.

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1. 1. The authenticity of exhibits, statutes, ordinances, regulations or standards set forth in the prehearing statement shall be admitted unless objected to in a written objection filed with the Hearing Officer and served on other parties no later than 10 days prior to hearing.
2. 2. The information provided in a prehearing statement shall be binding on each party throughout the course of the hearing unless modified to prevent manifest injustice. New witnesses or exhibits may be added only if the need to do so was not reasonably foreseeable at the time of filing of the prehearing statement and then only if it would not prejudice other parties or necessitate a delay of the hearing.

D. Prehearing conferences may be held at the discretion of the Hearing Officer, upon request by any party or upon the Hearing Officer's own motion. If any party deems a prehearing conference advisable, that party shall call such advisability to the attention of the Hearing Officer.

1. 1. Unless otherwise ordered by the Hearing Officer, no later than 10 days before the date set for prehearing conference, the parties shall:
   1. a. Complete such discovery as is necessary for hearing of the matter.
   2. b. Discuss the prospects of settlement and be prepared to report thereon at the prehearing conference.
   3. c. Prepare a prehearing statement in substantial compliance with the form set forth in Appendix A to these rules, file it with the Hearing Officer and serve it on all other parties.
   4. d. Be prepared to consider any matters that will simplify the issues and aid in the disposition of the controversy.
   5. e. To the extent practicable, premark and exchange copies or photographs of all exhibits intended to be offered into evidence at the hearing on the merits, respondents using letters and all other parties using numbers.
   6. f. Confer concerning what matters of fact and law can be stipulated.
   7. g. To the extent practicable, file and be prepared to argue or respond to motions in limine, motions concerning any outstanding discovery issues and motions concerning any other matters which can be considered in advance of hearing.
2. 2. After a prehearing conference is held, the Hearing Officer may enter an order which fully recites the action taken at the conference, including amendments allowed to pleadings, admissions, stipulations or agreements of the parties and rulings on admissibility of evidence. Such order shall control the subsequent course of the hearing unless modified at the hearing to prevent manifest injustice. The form of the prehearing order may be abbreviated by incorporation by reference of all or portions of the parties' prehearing statements.

E. Compliance with this Part 16 is mandatory, unless otherwise ordered by the Hearing Officer. If a prehearing conference is held and a prehearing order is entered, the prehearing order will control the course of the hearing. In the event of noncompliance with this rule, the Hearing Officer may impose appropriate sanctions.

Part 17. Motions for continuance Code of Colorado Regulations 6 A. Continuances are discouraged and shall be granted only upon a showing of good cause. Motions for continuance must be filed in a timely manner. Stipulations for a continuance shall not be effective unless and until approved by the Hearing Officer.

B. Good cause may include but is not limited to: death or incapacitation of a party or an attorney for a party; a court order staying proceedings or otherwise necessitating a continuance; entry or substitution of an attorney for a party a reasonable time prior to the hearing, if the entry or substitution reasonably requires a postponement of the hearing; a change in the parties or pleadings sufficiently significant to require a postponement; a showing that more time is clearly necessary to complete authorized discovery or other mandatory preparation for the hearing; or agreement of the parties to a settlement of the case which has been or will likely be approved by the final decision maker.

C. Good cause normally will not include the following: unavailability of counsel because of engagement in another judicial or administrative proceeding, unless the other proceeding was involuntarily set subsequent to the setting in the present case; unavailability of a necessary witness, if the witness' testimony can be taken by telephone or by deposition; or failure of an attorney timely to prepare for the hearing.

Part 18. Subpoenas Upon oral or written request of any party or of counsel for any party, a Hearing Officer shall sign a subpoena or subpoena duces tecum requiring the attendance of a witness or the production of documentary evidence, or both, at a deposition or hearing. Unless otherwise provided by agency statute, rule or regulation, practice before the Hearing Officer regarding subpoenas shall be governed by C.R.C.P. 45.

Part 19. Settlement or mediation conferences At any time after a proceeding is initiated, any party may file with the Hearing Officer and serve upon all other parties a request for a settlement or mediation conference. If the request is granted, the conference shall be conducted by any available Hearing Officer, other than the assigned Hearing Officer. All of the discussions at the settlement or mediation conference shall remain confidential and shall not be disclosed to the Hearing Officer assigned to the case. Statements at settlement or mediation conferences shall not be admissible evidence for any purpose. A Hearing Officer may require a settlement or mediation conference on the Hearing Officer's own motion.

Part 20. Settlements The Hearing Officer shall be notified promptly, ideally within 3 business days, of all settlements, stipulations, agency orders or any other action terminating a matter before the Hearing Officer. A copy of such settlement, stipulation, agency order or of any other document reflecting an action terminating a matter before the Hearing Officer shall be filed with the Hearing Officer. Part 21. Testimony by telephone or other electronic means A. Upon motion of any party the Hearing Officer may conduct all or part of a hearing by telephone or videophone pursuant to C.R.C.P. 43(i)(1), except that said motion need only be filed sufficiently prior to hearing to permit a response and ruling pursuant to Part 13.

B. All arrangements for the taking of testimony by telephone or videophone shall be made by the party requesting such testimony, who shall be responsible for all costs associated with the testimony. APPENDIX A OUTLINE FOR PREHEARING STATEMENT Code of Colorado Regulations 7 The following shall be included in each party's Prehearing Statement:

I. PENDING MOTIONS. A list of all outstanding motions that have not been ruled upon by the Hearing Officer.

II. STATEMENT OF CLAIMS AND DEFENSES. A concise statement of all claims or defenses asserted by all parties, together with all matters in mitigation or aggravation.

III. UNDISPUTED FACTS. A concise statement of all facts which the party contends are or should be undisputed.

IV. DISPUTED ISSUES OF FACT. A concise statement of the material facts which the party claims or concedes to be in dispute.

V. POINTS OF LAW. A concise statement of all points of law which are to be relied upon or which may be in controversy, citing pertinent statutes, regulations, cases and other authority. Extended legal argument is not required but may be reserved for a trial brief at the option of the party.

VI. WITNESSES. The name, address and telephone number of any witness or party whom the party may call at hearing, together with a detailed statement of the content of such person's testimony.

VII. EXPERTS. The name, address and brief summary of the qualifications of any expert witness a party may call at hearing, together with a statement as to each expert which sets forth in detail the opinions to which the expert is expected to testify. These requirements may be satisfied by the incorporation of an expert's resume or report containing the required information. VIII. EXHIBITS. A description of any physical or documentary evidence to be offered into evidence at the hearing. Exhibits should be identified as follows: respondents using letters and opposing parties using numbers.

IX. STIPULATIONS. A listing of all stipulations of fact or law reached, as well as a listing of any additional stipulations requested or offered to facilitate disposition of the case.

X. TRIAL EFFICIENCIES. An estimate of the amount of time required to try the case. PETITIONS FOR DECLARATORY ORDERS Part 1. Definition and construction of terms A. “Board” means the Colorado State Board of Stock Inspection Commissioners.

B. “Commission” means the Colorado Agricultural Commission.

C. “Commissioner” means the Colorado Commissioner of Agriculture.

D. “Department” means the Colorado Department of Agriculture. Part 2. Who may petition Any person, including any board, bureau, commission, division, section or officer of the Colorado Department of Agriculture, may petition the Commissioner, Commission, or Board, as appropriate, for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provision pertaining to the Department of Agriculture or of any rule or order thereto.

Code of Colorado Regulations 8 Part 3. The petition Any petition filed pursuant to this rule shall set forth the following:

A. The name and address of the petitioner.

B. Whether the petitioner holds a license, permit, registration, certification or commission issued by the Commissioner, Department or Board.

C. A citation to the statute, rule or order to which the petition relates.

D. A concise statement of all of the facts relevant to the controversy or uncertainty. All relevant documents shall be attached to the petition.

E. A concise statement as to why the petitioner believes that a controversy or uncertainty exists and statement as to how the statute, rule or order applies or potentially applies to the facts.

F. A concise statement of the relief sought, i.e., a concise statement of the declaratory order sought. Part 4. Action on the petition A. The Commissioner, Commission or Board will determine, in his/her/its discretion, whether to rule upon any petition.

B. In determining whether to rule upon a petition, the Commissioner, Commission or Board will consider the following matters, among others:

1. 1. Whether the petitioner complied with the provisions of this rule.
2. 2. Whether ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provision, rule or order.
3. 3. Whether the petition involves any subject, question or issue which is the subject or a formal or informal matter or investigation currently pending before the Commissioner, Commission, Board, Department or a court involving one or more of the petitioners, which if ruled upon will terminate the controversy or remove the uncertainties as to the applicability to the petitioner of any statutory provision, rule or order.
4. 4. Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Commissioner, Commission, Board, Department or a court but not involving the petitioner, which if ruled upon will terminate the controversy or remove the uncertainties as to the applicability to the petitioner of any statutory provision, rule or order.
5. 5. Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
6. 6. Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to C.R.C.P. 57, which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.

C. If the Commissioner, Commission or Board determines that he/she/it will not rule upon such a petition, he/she/it shall issue a written order disposing of the same, stating therein the reason(s) for such Code of Colorado Regulations 9 action. A copy of the order shall be mailed to the petitioner by first class mail to the address provided on the petition.

D. If the Commissioner, Commission or Board determines that he/she/it will rule upon the petition, the following procedures shall apply:

1. 1. The Commissioner, Commission or Board may dispose of the petition on the sole basis of the matters set forth in the petition and any attachments thereto. Such ruling will apply only to the facts presented in the petition and any amendments to the petition.
2. 2. The Commissioner, Commission or Board may order the petitioner to file a written brief, memorandum or position statement in support of the petition.
3. 3. The Commissioner, Commission or Board may order the petitioner to submit additional facts, in writing.
4. 4. The Commissioner, Commission or Board may set the petition for hearing, providing due notice to the petitioner. The purposes of such a hearing may be to obtain additional facts or information, to determine the truth of any facts set forth in the petition, and/or to hear oral argument on the petition. The notice to the petitioner shall set forth the factual or other matters into which the Commissioner, Commission or Board intends to inquire. At such hearing, the petitioner shall have the burden of proving by a preponderance of the evidence all facts stated in the petition and all facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the facts.
5. 5. The parties to any proceeding pursuant to this rule shall be the Commissioner, Commission or Board and the petitioner. Any other person may seek leave of the Commissioner, Commission or Board to intervene in the proceeding and leave to intervene will be granted at the sole discretion of the Commissioner, Commission or Board. A petition to intervene shall set forth the same information required in Part 3 of this rule. Any reference in this rule to “petitioner” shall include any person granted leave to intervene.
6. 6. The Commissioner, Commission or Board may take administrative notice of facts, consistent with § 24-4-105(8), C.R.S. (1998) and may utilize his/her/its knowledge and experience, technical competence and specialized knowledge in disposition of the petition. As required by § 24-4-105(8), the fact(s) so noticed shall be specified in the record or be brought to the attention of the parties before the final decision and every party shall be afforded an opportunity to controvert the fact(s) so noticed.
7. 7. The Commissioner, Commission or Board shall issue a written order disposing of the petition. A copy of the order shall be mailed to the petitioner by first class mail, to the address provided in the petition.
8. 8. Any declaratory order or other order disposing of a petition pursuant to this rule shall constitute agency action subject to judicial review pursuant to § 24-4-106, C.R.S. _________________________________________________________________________ Editor’s Notes History Code of Colorado Regulations 10