§ 2-808. Appellate procedure judicial review; due process.
A. Process. The matters subject to appeal under this section may be appealed as follows:
1. The appellant must have exhausted all available administrative remedies;
2. The appeal shall be in writing and shall state the name of the appellant, the issue(s) contested or the change(s) sought, the basis of such appeal, and such evidence as the appellant may wish to present.
3. In addition to a written appeal, the appellant may request an oral hearing.
4. If an oral hearing is granted and takes place, it shall be at a date, time and place as set by the Court and shall be on the record.
5. The Court shall issue a written determination supporting or denying (in whole or in part) the appeal and setting out its basis for the decision.
6. Such written determination may be appealed to the Osage Nation Supreme Court by either the agency or the regulated party.
B. Judicial Process.
1. The manner and further requirements of such appeal shall be in accordance with the procedures of the courts of the Osage Nation.
2. The appeal to the court of a decision by the agency shall be heard on the administrative record that was before the agency at the time of the final action, including any hearing transcript(s) resulting from any hearings conducted by the agency, briefs filed in any administrative appeals proceeding, the written decision of the agency, and such other information as the agency relied upon in making its final decision.
3. The court may remand any matter to the agency to conduct a factfinding hearing and provide the court and the litigants with a statement of its factual conclusions.
C. Standard of Review.
1. The Courts shall give deference to the administrative expertise of the agency and shall not set aside, modify, or remand any determination by the agency except upon a finding that the agency’s decision, action, or lack of action was:
a. Arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;
b. Contrary to right under the Constitution of the Osage Nation or other applicable law;
c. In excess of statutory jurisdiction, authority, or limitation or short of statutory right;
d. Without observance of procedure required by law;
e. Unsupported by a preponderance of the evidence in a case reviewed on the record.
D. Legal representation. An appellant may be represented by legal counsel in any proceedings or reviews by an agency or the court at the appellant’s own expense, and the agency may appear or be represented by legal counsel at its expense.
E. Remedies.
1. Upon judicial appeal, the Court may compel an agency’s action on an appeal of a regulation unduly delayed and may hold unlawful and set aside all or a portion of a final regulation, or remand it with instructions for further consideration by the agency if the court finds that all or some portion of the regulation or rulemaking decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law;
2. The court may sustain, reverse, or remand such decision, compel action on the part of the agency to act where the decision has been unduly delayed, or it may assume jurisdiction in a case before an agency where a decision has been unduly delayed or due process has been denied. ONCA 09-73, eff. Oct. 1, 2009.