Nebraska Administrative Code
Section 70-13-003 - Petition for Declaratory Order

Current through October 16, 2022

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

003.01 Who May File

Any person may petition the agency for issuance of a declaratory order as to the applicability to specified circumstances of a statute, rule, regulation, or order which is within the primary jurisdiction of the agency.

003.02 When Orders Appropriate

A declaratory order may be requested on the applicability of a statute, rule, regulation, or order enforced by the agency. "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:

003.02A A declaratory order may be requested only on the applicability of existing statutes and rules and regulations.

003.02B 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.

003.02C A declaratory order is not a mechanism for review or appeal of a decision made by the agency in a contested case.

003.02D A declaratory order may not be requested to obtain a declaration by the agency that a statute or regulation is unconstitutional or that a regulation of the agency is invalid.

003.02E A declaratory order may not be issued by the agency 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.

003.03 Form of Petition,

A petition for declaratory order shall be in the form of either a pleading or letter which shall contain each of the following:

003.03A A caption which shall include:

003.03A(2) A heading specifylng the subject matter and the name of the petitioner; and

003.03A(3) The name of the pleading: PETITION FOR DECLARATORY ORDER

003.03B The statements required in subsection 003.04 of this chapter.

003.03C The signature of the petitioner, or when represented by an attorney, the signature of the attorney.

003.03D The name and address of the petitioner. and when represented by an attorney, the name, address, telephone number, and bar number of the attorney.

003.03E The petition shall be made on white, letter-sized ( 8-1 /2" x 11") paper.

003.03F The petition shall be legibly typewritten, photostatically reproduced, printed, or handwritten. If handwritten, the petition must be written in ink. Only one side of a page shall contain any writing.

003.03G Attachments. Any documents attached to a petition shall be securely fastened to the pleading and shall meet the requirements of 003.03E and 003.03F and, when possible, be reproduced on 8-1 /2" by 11" paper or placed in an 8-1 /2" x 11" envelope and clearly marked as an attachment to the petition.

003.04 Contents of Petition

To be considered, the petition shall include the following:

003.04A The name and address of the petitioner;

003.04B 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, regulation, or order or who may be adversely affected by the issue sought to be resolved by the petition.

003.04C The statute, rule, regulation, or order upon which the petitioner seeks issuance of a declaratory order;

003.04D A detailed statement of all of the material facts and specific circumstances which apply to petitioner's request for issuance of a declaratory order;

003.04E All propositions of law or contentions asserted by the petitioner;

003.04F A demand for the relief to which the petitioner alleges entitlement. The petition shall state the petitioner's position as to how the agency should rule and why the agency should rule in the manner requested; and

003.04G Any documents pertinent to the petition that the petitioner wishes to be I considered by the agency.

003.05 Verification

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.

003.06 Sample Petition

The petitioner may use the sample form of a petition which is attached as "Appendix A" and incorporated within this chapter. The petitioner may also prepare a reasonable facsimile of "Appendix. A" so long as the requirements of subsections 003.03, 003.04, and 003.05 of this chapter are satisfied.

003.07 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.

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