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hearing, it may be made orally at the judge. Such rulings will be considered hearing.
but need not be separately ruled upon (c) Only one postponement will be by the Board in connection with its de allowed to a party on account of the cision. Where a ruling of an adminisabsence of witnesses unless the party
trative law judge sustains an objection requesting a further postponement
to the admission of evidence, the party shall at the time apply for an order to
affected may insert in the record, as a take the testimony of the alleged
tender of proof, a summary written absent witness by deposition.
statement of the substance of the ex § 4.433 Authority of the administrative
cluded evidence and the objecting law judge.
party may then make an offer of proof The administrative law judge is
in rebuttal. vested with general authority to con
§ 4.436 Reporter's fees. duct the hearing in an orderly and judicial manner, including authority to Reporter's fees shall be borne by the subpoena witnesses and to take and Bureau. cause depositions to be taken for the purpose of taking testimony but not 8 4.437 Copies of transcript. for discovery in accordance with the Each party shall pay for any copies Act of January 31, 1903 (32 Stat. 790;
of the transcript obtained by him 43 U.S.C. 102–106), to administer
Unless a summary of the evidence i oaths, to call and question witnesses,
stipulated to, the Government will fil to make proposed findings of fact and
the original copy of the transcrip to take such other actions in connec
with the case record. tion with the hearing as may be prescribed by the Board in referring the
§ 4.438 Summary of evidence. case for hearing. The issuance of subpoenas, the attendance of witnesses,
The parties and the Bureau may and the taking of depositions shall be with the consent of the administrativa governed by $ 4.423, and $ 4.26 of the law judge, agree that a summary of general rules of Subpart B of this the evidence approved by the examinpart.
er may be filed in the case in lieu of a
transcript. In such case the adminis & 4.434 Conduct of hearing.
trative law judge will prepare the sumSo far as not inconsistent with the mary or have it prepared and upon prehearing order, the examiner may agreement of the parties make it a seek to obtain stipulations as to mate part of the case record. rial facts. Unless the administrative law judge directs otherwise, the appel- & 4.439 Action by administrative la lant will present his evidence on the judge. facts at issue following which the
Upon completion of the hearing and other parties and the Bureau of Land
the incorporation of the summary on Management will present their evi
transcript in the record, the adminisdence on such issues.
trative law judge will send the record § 4.435 Evidence.
and proposed findings of fact on the (a) All oral testimony shall be under
issues presented at the hearing to the oath and witnesses shall be subject to
Board. The proposed findings of fact cross-examination. The administrative
will not be served upon the parties law judge may question any witnesses.
however, the parties and the Bureau Documentary evidence may be re
may, within 15 days after the compleceived if pertinent to any issue. The
tion of the transcript or the summary administrative law judge will summaric of the evidence, file with the Board ly stop examination and exclude testi- such briefs or statements as they m mony which is obviously irrelevant wish respecting the facts developed at and immaterial.
the hearing. (b) Objections to evidence will be ruled upon by the administrative law
§ 4.450 Private contests and protests. $ 4.450-1 By whom private contest may be
initiated. Any person who claims title to or an interest in land adverse to any other person claiming title to or an interest . in such land or who seeks to acquire a
preference right pursuant to the Act of May 14, 1880, as amended (43 U.S.C. 185), or the Act of March 3, 1891 (43 U.S.C. 329), may initiate proceedings
to have the claim of title or interest I adverse to his claim invalidated for
any reason not shown by the records of the Bureau of Land Management. Such a proceeding will constitute a private contest and will be governed by the regulations herein.
8 4.450-2 Protests.
Where the elements of a contest are not present, any objection raised by any person to any action proposed to be taken in any proceeding before the Bureau will be deemed to be a protest
and such action thereon will be taken * as is deemed to be appropriate in the
(4) A statement in clear and concise language of the facts constituting the grounds of contest;
(5) A statement of the law under which contestant claims or intends to acquire title to, or an interest in, the land and of the facts showing that he is qualified to do so;
(6) A statement that the proceeding is not collusive or speculative but is insitituted and will be diligently pursued in good faith;
(7) A request that the contestant be allowed to prove his allegations and that the adverse interest be invalidated;
(8) The office in which the complaint is filed and the address to which papers shall be sent for service on the contestant; and
(9) A notice that unless the contestee files an answer to the complaint in such office within 30 days after service of the notice, the allegations of the complaint will be taken as confessed.
(b) Amendment of complaint. Except insofar as the manager, administrative law judge, Director, Board or Secretary may raise issues in connection with deciding a contest, issues not raised in a complaint may not be raised later by the contestant unless the administrative law judge permits the complaint to be amended after due notice to the other parties and an opportunity to object.
(c) Corroboration required. All allegations of fact in the complaint which are not matters of official record or capable of being judicially noticed and which, if proved, would invalidate the adverse interest must be corroborated under oath by the statement of witnesses. Each such allegation of fact must be corroborated by the statement of at least one witness having personal knowledge of the alleged fact and such fact must be set forth in the statement. All statements by witnesses shall be attached to the complaint.
(d) Filing fee. Each complaint must be accompanied by a filing fee of $10 and a deposit of $20 toward reporter's fees. Any complaint which is not accompanied by the required fee and deposit will not be accepted for filing.
(e) Waiver of issues. Any issue not raised by a private contestant in accordance with the provisions of para
§ 4.450-3 Initiation of contest.
Any person desiring to initiate a private contest must file a complaint in the proper land office (see 1821.2-1 of Chapter II of this Title 43 of the Code of Federal Regulations). The
contestant must serve a copy of the The complaint on the contestee not later
than 30 days after filing the complaint and must file proof of such service, as required by $ 4.422(c), in the office where the complaint was filed within
30 days after service. 18 4.450-4 Complaints.
(a) Contents of complaint. The complaint shall contain the following information, under oath:
(1) The name and address of each i party interested;
(2) A legal description of the land involved;
(3) A reference, so far as known to the contestant, to any proceedings pending for the acquisition of title to, or an interest, in such land:
graph (b) of this section, which was known to him, or could have been known to him by the exercise of reasonable diligence, shall be deemed to have been waived by him, and he shall thereafter be forever barred from raising such issue.
§ 4.450-5 Service.
The complaint must be served upon every contestee. If the contestee is of record in the land office, service may be made and proved as provided in $ 4.422 (c). If the person to be served is not of record in the land office, proof of service may be shown by a written statement of the person who made personal service, by post office return receipt showing personal delivery, or by an acknowledgment of service. In certain circumstances, service may be made by publication as provided in paragraph (b)(1) of this section. When the contest is against the heirs of a deceased entryman, the notice shall be served on each heir. If the person to be personally served is an infant or a person who has been legally adjudged of unsound mind, service of notice shall be made by delivering a copy of the notice to the legal guardian or committee, if there be one, of such infant or person of unsound mind; if there be none, then by delivering a copy of the notice to the person having the infant or person of unsound mind in charge.
(a) Summary dismissal; waiver of defect in service. If a complaint when filed does not meet all the requirements of $ 4.450-4(a) and (c), or if the complaint is not served upon each contestee as required by this section, the complaint will be summarily dismissed by the manager and no answer need be filed. However, where prior to the summary dismissal of a complaint a contestee answers without questioning the service or proof of service of the complaint, any defect in service will be deemed waived as to such answering contestee.
(b) Service by publication_(1) When service may be made by publication. When the contestant has made diligent search and inquiry to locate the contestee, and cannot locate him, the contestant may proceed with service
by publication after first filing with the manager an affidavit which shall:
(i) State that the contestee could not be located after diligent search and inquiry made within 15 days prior to the filing of the affidavit;
(ii) Be corroborated by the affidavits of two persons who live in the vicinity of the land which state that they have no knowledge of the contestee's whereabouts or which give his last known address;
(iii) State the last known address of the contestee; and
(iv) State in detail the efforts and inquiries made to locate the party sought to be served.
(2) Contents of published notice. The published notice must give the names of the parties to the contest, legal description of the land involved, the substance of the charges contained in the complaint, the office in which the contest is pending, and a statement that upon failure to file an answer in such office within 30 days after the completion of publication of such notice, the allegations of the complaint will be taken as confessed. The published notice shall also contain a statement of the dates of publication.
(3) Publication, mailing and posting of notice. (i) Notice by publication shall be made by publishing notice at least once a week for 5 successive weeks in some newspaper of general circulation in the county in which the land in contest lies.
(ii) Within 15 days after the first publication of a notice, the contestant shall send a copy of the notice and the complaint by registered or certified mail, return receipt requested, to the contestee at his last known address and also to the contestee in care of the post office nearest the land. The return receipts shall be filed in the office in which the contest is pending.
(iii) A copy of the notice as published shall be posted in the office where the contest is pending and also in a conspicuous place upon the land involved. Such postings shall be made within 15 days after the first publication of the notice.
(c) Proof of service. (1) Proof of publication of the notice shall be made by filing in the office where the contest is pending a copy of the notice as published and the affidavit of the publisher or foreman of the newspaper publishing the same showing the publication of the notice in accordance with paragraph (b)(3) of this section.
(2) Proof of posting of the notice shall be by affidavit of the person who posted the notice on the land and by the certificate of the manager or the Director of the Bureau of Land Management as to posting in his office.
(3) Proof of the mailing of notice shall be by affidavit of the person who mailed the notice to which shall be attached the return receipt.
§ 4.450–6 Answer to complaint.
Within 30 days after service of the complaint or after the last publication of the notice, the contestee must file in the office where the contest is pending an answer specifically meeting and responding to the allegations of the complaint, together with proof of service of a copy of the answer upon a contestant as provided in § 4.4505(b)(3). The answer shall contain or be accompanied by the address to which all notices or other papers shall be sent for service upon contestee. 8 4.450-7 Action by manager.
(a) If an answer is not filed as required, the allegations of the complaint will be taken as admitted by the contestee and the manager will decide the case without a hearing.
(b) If an answer is filed and unless all parties waive a hearing, the manager will refer the case to an administrative law judge upon determining that the elements of a private contest appear to have been established. § 4.450-8 Amendment of answer.
At the hearing, any allegation not denied by the answer will be considered admitted. The administrative law judge may permit the answer to be amended after due notice to other parties and an opportunity to object. $ 4.451 Government contests. § 4.451-1 How initiated.
The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim.
$ 4.451-2 Proceedings in Government con
tests. The proceedings in Government contests shall be governed by the rules relating to proceedings in private contests with the following exceptions:
(a) No corroboration shall be required of a Government complaint and the complaint need not be under oath.
(b) A Government contest complaint will not be insufficient and subject to dismissal for failure to name all parties interested, or for failure to serve every party who has been named.
(c) No filing fee or deposit toward reporter's fee shall be required of the Government.
(d) Any action required of the contestant may be taken by any authorized Government employee.
(e) The statements required by § 4.450-4(a) (5) and (6) need not be included in the complaint.
(f) No posting of notice of publication on the land in issue shall be required of the Government.
(g) Where service is by publication, the affidavits required by $ 4.4505(b)(1) need not be filed. The contestant shall file with the manager a statement of diligent search which shall state that the contestee could not be located after diligent search and inquiry, the last known address of the contestee and the detail of efforts and inquiries made to locate the party sought to be served. The diligent search shall be concluded not more than 15 days prior to the filing of the statement.
(h) In lieu of the requirements of § 4.450-5(b)(3)(ii) the contestant shall, as part of the diligent search before the publication or within 15 days after the first publication send a copy of the complaint by certified mail, return receipt requested, to the contestee at the last address of record. The return receipts shall be filed in the office in which the contest is pending.
(i) The affidavit required by $ 4.4505(c)(3) need not be filed.
(j) The provisions of paragraph (e) of $ 4.450-4(e) shall be inapplicable.
8 4.452 Proceedings before the administra for postponement served or filed tive law judge.
than 10 days in advance of the hei
or made at the hearing be gra $ 4.452-1 Prehearing conferences.
unless the party requesting it de (a) The administrative law judge strates that an extreme emergenc may in his discretion, on his own curred which could not have been motion or on motion of one of the par ticipated and which justifies be ties, or of the Bureau, direct the par question the granting of a posti ties or their representatives to appear
ment. In any such emergency, if at a specified time and place for a pre
does not permit the filing of suc hearing conference to consider: (1)
quest prior to the hearing, it ma The simplification of the issues, (2)
made orally at the hearing. the necessity of amendments to the pleadings, (3) the possibility of obtain
(b) The request for a postpone ing stipulations, admissions of facts
must state in detail the reasons v and agreements to the introduction of
postponement is necessary. If documents, (4) the limitation of the quest is based upon the absence o number of expert witnesses, and (5) nesses, it must state what the such other matters as may aid in the stance of the testimony of the a disposition of the proceedings
witnesses would be. No postpone (b) The administrative law judge will be granted if the adverse par shall make an order which recites the parties file with the administrativ action taken at the conference, the judge within 5 days after the se amendments allowed to the pleadings, of the request a statement adm and the agreements made as to any of that the witnesses on accoun the matters considered, and which
whose absence the postponeme limits the issues for hearing to those
desired would, if present, testi not disposed of by admission or agree
stated in the request. If time doe ments. Such order shall control the
permit the filing of such state subsequent course of the proceedings
prior to the hearing, it may be before the administrative law judge
orally at the hearing. unless modified for good cause, by sub
(c) Only one postponement wi sequent order.
allowed to a party on account o § 4.452-2 Notice of hearing.
absence of witnesses unless the The administrative law judge shall
requesting a further postpone fix a place and date for the hearing
shall at the time apply for an ord and notify all parties and the Bureau
take the testimony of the al at least 30 days in advance of the date absent witness by deposition. set, unless the parties and the Bureau
8 4.452-4. Authority of administrativ request or consent to an earlier date. The notice shall include (a) the time,
judge. place, and nature of the hearing, (b) The administrative law judg the legal authority and jurisdiction vested with general authority to under which the hearing is to be held, duct the hearing in an orderly an and (c) the matters of fact and law as
dicial manner, including authorit serted.
subpoena witnesses and to take 8 4.452-3 Postponements.
cause depositions to be taken for
purpose of tasking testimony but (a) Postponements of hearings will
for discovery in accordance with not be allowed upon the request of
act of January 31, 1903 (43 U.S.C. any party or the Bureau except upon
106), to administer oaths, to call a showing of good cause and proper
question witnesses, and to make a diligence. A request for a postpone
sion. The issuance of subpoenas, ment must be served upon all parties
attendance of witnesses and the ta to the proceeding and filed in the office of the administrative law judge
of depositions shall be governe at least 10 days prior to the date of 88 4.423 and 4.26 of the general ru the hearing. In no case will a request
Subpart B of this part.