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ENFORCE34652
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ENFORCE34652
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Last modified
8/24/2016 7:44:30 PM
Creation date
11/21/2007 2:17:57 PM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
C1981013
IBM Index Class Name
Enforcement
Doc Name
MLRB COMBINED MOTION TO DISMISS AND RESPONSE TO PLAINTIFFS APPLICATION FOR TEMPORARY RELIEF
Violation No.
CV2000009
Media Type
D
Archive
No
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hearing before the Boazd "shall be held." 1n a civil action, once the complaint and answer have <br />been filed with the court, the plaintiff cannot simply terminate the proceedings on its own <br />motion. Rather, the plaintiff must ask the court's permission through a motion to dismiss or <br />some other avenue. Once the court hasjurisdiction, only the court may terminate the litigation, <br />regazdless of the negotiations between the parties. There is no sensible reason for this Court to <br />find that the situation should be different before the Boazd where the Boazd's adjudicatory <br />jurisdiction over a notice of violation has been invoked by a request for hearing. <br />In the current matter, Basin requested a hearing on the NOV thirteen days after the <br />Division issued the NOV. At that time the Board had jurisdiction over the final adjudication of <br />the NOV. On February 12, 2001, the Plaintiffs acknowledged the Boazd's jurisdiction by <br />moving the Boazd for permission to intervene in the NOV hearing. At no time was there a <br />settlement of the facts of the NOV; Basin has contested the NOV since it requested a hearing on <br />November 13, 2000. On Mazch 12, 2001, the Division vacated the NOV without prejudice, at <br />the request of the Plaintiffs, without moving for a dismissal before the Board or seeking the <br />Boazd's approval in any way. The Division's action alone gives rise to the question the Board <br />asked itself during its Mazch 21, 2001, hearing: if the Board has jurisdiction over the NOV, how <br />can the Division unilaterally vacate the NOV and terminate the Board's jurisdiction? The <br />Boazd's answer to that question, based on its analysis of the statutes set forth above, was that the <br />Division had exceeded its implied authority and that the NOV should be reinstated and scheduled <br />for hearing. The Boazd merely interpreted its own ambiguous organic statute in a reasonable <br />way that is clearly permissible under the statute. Such an interpretation should not only be <br />14 <br />
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