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The Oregon Administrative Rules contain OARs filed through August 15, 2014
 
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DEPARTMENT OF FORESTRY

 

DIVISION 670

FOREST PRACTICES ADMINISTRATION

Civil Penalties

629-670-0000

Purpose

OAR 629-670-0000 through 629-670-0350 shall be known as the Oregon Forest Practices Act Enforcement and Civil Penalty Rules. These rules direct the State Forester to take fair and uniform enforcement action when there is a violation of the Oregon Forest Practices Act. OAR 629-670-0300 and 629-670-0310 provide an outline of contested case hearings procedures, with specific contested case rules in OAR chapter 629, division 1 and OAR chapter 137, division 3.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.685
Hist.: FB 2-1995, f. 6-19-95, cert. ef. 7-1-95; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0010

Definitions

As used in OAR chapter 629, divisions 670 through 680:

(1) "Board" means the State Board of Forestry.

(2) "Damage" means an adverse disturbance to a resource protected by the Oregon Forest Practices Act that cannot be immediately stabilized and corrected, resulting from a forest practice that is not in compliance with the Oregon Forest Practices Act or the forest practice rules.

(3) "Forest practice rule" means any rule regulating operations under the Oregon Forest Practices Act, as found in OAR chapter 629, divisions 600 through 680.

(4) "Operation" means any commercial activity relating to the establishment, management or harvest of forest tree species except as provided by the following:

(a) The establishment, management or harvest of Christmas trees, as defined in ORS 571.505, on land used solely for the production of Christmas trees.

(b) The establishment, management or harvest of hardwood timber, including but not limited to hybrid cottonwood that is:

(A) Grown on land that has been prepared by intensive cultivation methods and that is cleared of competing vegetation for at least three years after tree planting;

(B) Of a species marketable as fiber for inclusion in the furnish for manufacturing paper products;

(C) Harvested on a rotation cycle that is 12 or fewer years after planting; and

(D) Subject to intensive agricultural practices such as fertilization, cultivation, irrigation, insect control and disease control.

(c) The establishment, management or harvest of trees actively farmed or cultured for the production of agricultural tree crops, including nuts, fruits, seeds and nursery stock.

(d) The establishment, management or harvest of ornamental, street or park trees within an urbanized area, as that term is defined in ORS 221.010.

(e) The management or harvest of juniper species conducted in a unit of less than 120 contiguous acres within a single ownership.

(f) The establishment or management of trees intended to mitigate the effects of agricultural practices on the environment or fish and wildlife resources, such as trees that are established or managed for windbreaks, riparian filters or shade strips immediately adjacent to actively farmed lands.

(g) The development of an approved land use change after timber harvest activities have been completed and land use conversion activities have commenced.

(5) "Operator" means any person, including a landowner or timber owner, who conducts an operation.

(6) "Plan for an Alternate Practice" means a document prepared by the landowner, operator or timber owner, submitted for approval in writing by the State Forester describing practices different than those prescribed in statute or administrative rule.

(7) "State Forester" means the State Forester or the duly authorized representative of the State Forester.

(8) "Timely corrective action" means action to be taken by the operator within a specified time to prevent or reverse the damage potentially caused by an unsatisfactory condition.

(9) "Unsatisfactory condition" means the circumstance which exists when an operator or landowner fails to comply with a practice specified in a forest practice rule or statute listed in ORS 527.990(1) or 527.992 and the State Forester determines that all of the following conditions exist:

(a) The forest practice rule or statute applies to the type of operation conducted;

(b) The practice is necessary to meet the purpose of the statute or rule; and

(c) The operator has not been exempted from the rule or statute by obtaining approval for, or having obtained approval has not followed, a plan for an alternate practice as prescribed by OAR 629-605-0100.

(10) "Violation" means the circumstances which exist any time one or more of the following occurs:

(a) An operator fails to comply with any provision of ORS 527.670(6) or (7) requiring notification to the State Forester before commencing an operation.

(b) An unsatisfactory condition exists, and:

(A) Damage has resulted; or

(B) The State Forester has determined that it is not feasible for the operator, by timely corrective action, to eliminate the consequences of the unsatisfactory condition; or

(C) A written statement of unsatisfactory condition has been issued to the operator, the deadline for action has passed and appropriate action has not been taken by the operator.

(c) The operator has failed to follow a procedural practice required in statute or rule including, but not limited to, failure to submit a required written plan.

(d) An operator has failed to comply with any term or condition of any order of the State Forester issued in accordance with ORS 527.680.

(11) "Written statement of unsatisfactory condition" means a written statement issued by the State Forester to a landowner or an operator that describes the nature of an unsatisfactory condition and that specifies the corrective action to be taken within a definite time limit.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.674, 527.685 527.700 & 527.715
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0005; FB 9-1996, f. 12-2-96, cert. ef. 1-1-97; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0015

Enforcement Policy

Effective administration of the Oregon Forest Practices Act and forest practice rules is a balance of technical design, education and enforcement. The forest practice rules require compliance with a practice specified in a rule unless a plan for an alternate practice has been approved in writing by the State Forester. However, it is very difficult to write rules which deal with every conceivable situation and unlikely that the State Forester can monitor every forest operation in Oregon. The board recognizes that it is appropriate that the State Forester exercises judgment in not enforcing compliance with practices in a rule where the practice is clearly not necessary to accomplish the purpose of the rule. At the same time, without written approval for an alternate practice, such a recognition by the board shall not be a defense for an operator who has not complied with a practice.

Stat. Auth.: ORS 527.710, 526.016(4), 527.714 & 527.715
Stats. Implemented: ORS 527.680, 527.683, 527.685, 527.990 & 183.310 - 183.550
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0100

Inspections; Compliance Determination

(1) The State Forester shall conduct investigations of reported Oregon Forest Practices Act violations and make preventative and compliance inspections on forest operations subject to the Oregon Forest Practices Act.

(2) When inspecting operations, the State Forester shall examine practices used by the operator to assess compliance with the applicable forest practice rules and plans for an alternate practice. The State Forester may make recommendations that would help the operator avoid an unsatisfactory condition.

(3) When the State Forester determines that an unsatisfactory condition or a violation exists, enforcement action shall be initiated by the State Forester.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0010; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0105

The Concept of Damage

(1) Understanding the concept of damage is important when an unsatisfactory condition results in damage, or if there is the potential for damage to occur.

(2) Damage, as defined in OAR 629-670-0010(2), can be characterized as an adverse disturbance of air quality, water quality, soil productivity, aquatic habitat, wildlife habitat, or visually sensitive corridors under ORS 527.755.

(3) The concept of damage under the Oregon Forest Practices Act does not apply to damages to improvements such as dwellings, barns, pastures, fences, water intake structures, or agricultural crops.

(4) Damage to natural resources is a difficult concept to quantify because of the changes that naturally occur with or without human involvement.

(5) The State Forester shall determine damage based on the degree of disturbance to the natural condition over time and space, while considering the relative importance of the particular protected resource, recognizing:

(a) There is a level of natural disturbance which is both acceptable and unavoidable, such as a certain amount of erosion from naturally exposed soils;

(b) There is a level of disturbance which should be considered to be reasonable and necessary as a result of accepted management practices, such as disturbance to soils and vegetation during road construction conducted in compliance with the forest practice rules; and

(c) There are many possible levels of disturbance that may result from a failure to comply with the rules. Disturbance may sometimes be very limited in extent and can be immediately stabilized and corrected. Examples include temporary water turbidity from a road ditch or a minor slash deposit in a Type F stream.

(6) Resource damage does not exist when the State Forester determines:

(a) Disturbance is at or below the reasonable and necessary management level; or

(b) Disturbance that results from rule noncompliance is very limited in extent, over time and space, and is immediately stabilized and corrected.

Stat. Auth.: ORS 527.710, 526.016(4), 527.714 & 527.715
Stats. Implemented: ORS 527.680, 527.683, 527.685, 527.990, 183.310 -- 183.550
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0110

Enforcement Action

The State Forester may initiate enforcement action by issuing and serving to the responsible person, persons, or corporation either a:

(1) Written statement of unsatisfactory condition under OAR 629-670-0115, OAR 629-670-0120, or OAR 629-670-0125; or

(2) Citation under OAR 629-670-0130 and ORS 527.680.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680, 527.683, 527.990 & 527.992
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0020; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0115

Using the Written Statement of Unsatisfactory Condition to Prevent Damage

(1) Enforcement action may be initiated by the State Forester by issuing and serving a written statement of unsatisfactory condition to the landowner or operator when the State Forester determines that:

(a) A specific operating practice prescribed by a rule or statute, or a condition described in an approved plan for an alternate practice, has not been followed; and

(b) Noncompliance with a rule has resulted in adverse resource disturbance that is very limited in extent and that can be immediately stabilized and corrected; or

(c) Through timely corrective action the operator can eliminate the potential for resource damage or other consequences due to compliance failure. The State Forester may consider expected weather and site conditions, availability of equipment, expertise to accomplish work, and access to the site before requiring corrective action.

(2) A written statement of unsatisfactory condition shall contain:

(a) The nature of the unsatisfactory condition;

(b) The corrective action to be taken by a specific date; and

(c) A notice that a citation will be issued if damage results before corrective action is completed, or if corrective action is not completed by the specific date.

(3) If the operator completes the corrective action described in the written statement of unsatisfactory condition, it is not necessary to issue a citation or assess a civil penalty.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680, 527.683, 527.990 & 527.992
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0120

Using the Written Statement of Unsatisfactory Condition for Failure to Begin Timely Reforestation

The State Forester may issue a written statement of unsatisfactory condition when the landowner fails to begin reforestation, including any necessary site preparation, within 12 months after the completion of the operation and as described in OAR 629-610-0040, Time Allowed for Reforestation.

Stat. Auth.: ORS 527.710, 526.016(4), 527.714 & 527.715
Stats. Implemented: ORS 527.680, 527.683, 527.685, 527.990 & 183.310 -- 183.550
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0125

Using the Written Statement of Unsatisfactory Condition for Noncompliance with Procedural Rules

(1) Some forest practice rules deal with administrative procedures rather than resource protection. Rules requiring notification, written plans and plans for an alternate practice are examples of procedural rules which, if not complied with, may or may not result in resource damage.

(2) Compliance with these procedural rules is essential if the Oregon Forest Practices Act program is to succeed in educating forest landowners and operators, preventing resource damage before it occurs, and fulfilling its legal obligations to keep other agencies and interested citizens informed about planned operation activities.

(3) The board's intent is that violations of procedural rules should result in the issuance of a citation in most instances. However, the State Forester has the option of using the written statement of unsatisfactory condition, described in OAR 629-670-0110, as the enforcement action when the State Forester determines the following conditions exist:

(a) Resource damage from failure to comply with the procedural rule did not, and will not, occur;

(b) The written statement of unsatisfactory condition will result in immediate compliance with the procedural rule and will be adequate to educate the operator about the rule that was not complied with and to favorably modify the operator's future behavior;

(c) The operator had no prior knowledge or only general knowledge of the Oregon Forest Practices Act and rules and has not had significant past experience with the practice in question, or the operator has had significant past experience with the practice, but the violation was inadvertent or accidental;

(d) The rule violation did not result in a greater economic benefit for the operator than if the operator had complied with the procedural rule; and

(e) Noncompliance with the procedural rule has not denied a person an opportunity to receive a copy of a notification or written plan under ORS 527.670(9) before the operation began, if that person has previously requested copies for the purpose of commenting on the operation.

(4) If the operator or landowner reports to the State Forester an unsatisfactory condition that meets the requirements in section (3) of this rule, the State Forester may issue a written statement of unsatisfactory condition.

Stat. Auth.: ORS 527.710, 526.016(4), 527.714 & 527.715
Stats. Implemented: ORS 527.674, 527.680, 527.683, 527.685, 527.990, 183.310 - 183.550
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0130

Issuing a Citation and an Order to Cease Further Violation

(1) When the State Forester determines a violation exists, enforcement action may be initiated by issuing and serving a citation to the responsible persons or corporations in accordance with ORS 527.680.

(2) The State Forester shall also issue an order to cease further violation and determine whether it is practical and economically feasible for the operator to take corrective action to repair the damage or correct the unsatisfactory condition. The State Forester may then issue and serve an order directing the operator to make reasonable efforts to repair the damage or correct the unsatisfactory condition in accordance with ORS 527.680(2)(b).

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680, 527.683, 527.990 & 527.992
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0140

Criminal Prosecution

Citations for violation of any forest practice rule or statute shall be presented to the District Attorney for the county where the violation occurred, along with a case brief, for the purpose of filing a complaint or information pursuant to ORS 527.990(1) whenever:

(1) In the judgment of the State Forester, the operator acted intentionally, knowingly, or recklessly as defined in ORS 161.085 relating to criminal liability; or

(2) The violation appears in the judgment of the State Forester to have resulted in monetary gain to the operator, substantially in excess of any amount recoverable by a civil penalty, and which would not have resulted under compliance with the rule.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680, 527.683, 527.990 & 527.992
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0200

Assessment of Civil Penalties; Notice of Penalty

(1) In addition to any other remedy, the State Forester may assess a civil penalty for any violation described in ORS 527.992(1).

(2) The purpose of this rule is to establish civil penalties that will be uniformly assessed by a civil penalty administrator who is appointed by the State Forester.

(3) After a citation is issued, the citation and any accompanying information shall be reviewed by a civil penalty administrator. The civil penalty administrator shall review the circumstances of the violation and determine the amount of penalty to be assessed.

(4) The State Forester shall give written notice of a civil penalty by certified and first class mail to the person incurring the penalty. The notice shall include but not be limited to:

(a) A reference to the particular sections of the statute, rule, standard, order or permit involved;

(b) A short and plain statement of the matters asserted or charged;

(c) A statement of the amount of the penalty or penalties imposed and how it was calculated;

(d) A statement that the party may request collaborative dispute resolution, within 20 days of service of the notice, in which an independent mediator would review the facts of the case, or facilitate any agreement to mitigate the penalty or penalties imposed;

(e) A statement of the party's right to request a hearing within 20 days of service of the notice and an explanation of how a hearing or mitigation of a penalty may be requested;

(f) A statement that the notice becomes a final order unless the person upon whom the civil penalty is assessed, makes a written request for a hearing within 20 days from the date of service of the notice; and

(g) A statement that the record of the proceedings to date, including the agency file or files on the subject of the civil penalty, automatically becomes part of the contested case record upon default for the purpose of providing a prima facie case.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.683, 527.687 & 527.992
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88; FB 4-1992, f. & cert. ef. 4-21-92; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0030; DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0210

Amount of Civil Penalties

(1) The amount of civil penalty per violation shall be the lesser of $5000 or the amount determined by the formula $B(C x P) + ($B x D x R) where:

(a) $B is a base fine established by type of violation in section (2) of this rule;

(b) C is cooperation;

(c) P is prior knowledge or prior violations;

(d) D is damage to protected resources; and

(e) R is the extent of damage that cannot be corrected, or prevented in the future, even though repairs are made.

(2) The base penalty value ($B) shall be established as follows:

(a) A base penalty of $100 shall be applied to violations of a type where the operator fails to notify the State Forester of intent to operate or fails to submit a required written plan or obtain written approval of a plan for an alternate practice.

(b) A base penalty of $250 shall be applied to:

(A) Violations of any rule or statute which requires or sets standards for accomplishing reforestation.

(B) Violations involving a failure to comply with the terms or conditions of any order of the State Forester issued in accordance with ORS 527.680.

(C) Violations of a type where the operator fails to comply with any term or condition of an approved plan for an alternate practice.

(D) Violations where the State Forester determines that an operator has intentionally failed to notify the State Forester of intent to operate, notwithstanding subsection (2)(a) of this rule.

(E) All other violations of forest practice rules or statutes not specifically described in section (2) of this rule.

(c) A base penalty of $1000 shall be applied to violations of any rule or statute which sets a maximum size for harvesting operations.

(3) The cooperation value (C) shall be determined by the State Forester after reviewing whether the operator is taking all feasible steps or procedures necessary or appropriate to correct the violation for which the penalty is being assessed. The value shall be assigned as follows:

(a) A value of 0.5 shall be assigned when, in the judgment of the State Forester, the operator takes substantial initiative to correct the damage or problem that led to the violation. Substantial initiative may include, but is not limited to, reporting the violation before it is discovered, initiating effective repairs without having to be directed, or making substantive changes in operating procedures designed to identify and avoid potential recurrences.

(b) A value of 1 shall be assigned when the operator cooperates in following the direction of the State Forester by immediately ceasing further violation and taking prompt action to repair damage or correct any unsatisfactory condition where deemed feasible by the State Forester.

(c) A value of 2 shall be assigned when the State Forester determines that the operator does not immediately cease further violation, is evasive upon attempts to make necessary communications, or neglects to take necessary and timely action to repair damage or correct any unsatisfactory condition.

(4) The prior knowledge value (P) shall be determined by the State Forester after reviewing department records of citations, operation notification or operation inspections. A value from 0.5 through 10 shall be assigned as follows:

(a) A value of 0.5 is appropriate when the operator has little or no prior knowledge of the Oregon Forest Practices Act but has cooperated in ceasing violation and correcting unsatisfactory conditions.

(b) A value of 1 is appropriate when the operator has general knowledge of the Oregon Forest Practices Act and rules, but has not had significant past experience with the practice in question, or has significant past experience with the practice, but the violation is determined by the State Forester to be inadvertent or accidental.

(c) A value of 2 is appropriate when the operator has had significant past experience with a practice or condition, or has had specific correspondence or conversation with department personnel about the required practices or actions involved in the violation, before the violation.

(d) A value of 4 is appropriate when the State Forester has issued a written statement of unsatisfactory condition to the operator for the violation and timely corrective action was not taken.

(e) A value from 3 through 5 is appropriate when the operator has received citations for any other forest practice rule or statute within the past three years.

(f) A value from 5 to 10 shall be assigned when the operator has been cited within the past three years for a violation of the same forest practice rule, statute, or condition; or in a case of failure to comply with an order to cease further violation, or order to repair damage, or order to correct an unsatisfactory condition (ORS 527.680(2)).

(5) The damage value (D) shall be determined by the State Forester as a measure of extent or relative adverse effect of damage. The specific value applied shall be based on the pre-operation condition of the site, if known, the severity and extent of damage associated with the violation, and any potential economic gain to any involved operators. The damage value should be consistent with the policy of deterring future violations. A value from 0 through 20 shall be assigned. The following shall guide the State Forester's determination:

(a) A value of zero shall be assigned when the violation has not resulted and will not result in resource damage.

(b) A value of 1 shall be assigned when the adverse effects of the violation left uncorrected are minor and the affected resources will naturally self-restore within one year. Example: Siltation from exposed soil flows into the upper reaches of a stream, but the site will naturally revegetate within the next growing season, preventing further siltation.

(c) A value from 2 to 5 shall be assigned when the damage from the violations left uncorrected is more serious than described in subsection (b) of this section, but the affected resources will self-restore naturally within five years. Examples: A small volume debris avalanche is caused by road construction material placed in an unstable location and the debris comes to rest in a fish-bearing or domestic use water; or logs are skidded across a stream without an adequate temporary crossing leaving ruts and disturbed soil areas that will flow muddy water directly into the stream.

(d) A value from 5 through 10 shall be assigned when the damage from the violation left uncorrected is major in relative effect, with natural self-restoration taking up to 10 years. A consideration in selecting a value from 5 to 10 may include, but is not limited to the size of the area affected. Examples: Failure to reforest five acres may be assigned no less than a 5, while failure to reforest 50 acres may be assigned a 10. Removal of understory vegetation along 500 feet of a small stream may be assigned a 10.

(e) A value from 5 through 20 shall be assigned when damage is the result of harvest or destruction of trees or snags required to be maintained; or when the damage from the violation left uncorrected is major in relative effect, with self-restoration taking more than 10 years. Example: Severe riparian management area soil disturbance, combined with the total harvest or destruction of what had been a fully stocked stand of trees required to be maintained, along more than 500 feet of a small stream may be assigned a factor of 20.

(6) The repair value (R) shall be assigned by the State Forester as a measure of the relative extent of the damage that is corrected or prevented through timely corrective action. The value shall be set by the State Forester between 0 and 1, inclusive and expressed as a decimal. The decimal indicates the degree of damage that already occurred and future damage that cannot be prevented, even after the repairs are completed as directed in the repair order. Example: A tractor crossed a stream with no temporary structure, breaking the stream banks down, leaving exposed skid trails which eroded, creating turbidity, and leaving visible sediment in the stream. With no repairs, the stream bank and skid trails would revegetate in 4 years. The landowner performed all repairs as ordered, including mulching, placing rip-rap, and building waterbars. In the State Forester's judgement, compliance with the repair order will prevent all but 20% of the potential damage expected over the next 4 years. Therefore R equals 0.20. If repairs are not feasible or are not completed, R equals 1.0.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.674 & 527.685
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88; FB 5-1990, f. 7-27-90, cert. ef. 8-1-90; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0040; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06

629-670-0212

Reducing the Civil Penalty after Repairs are Complete

A person may request that a civil penalty be reduced by the actual costs of the repairs up to an amount equal to $B x D x R. The request must be in writing and received by the State Forester within 20 days of service of the notice of civil penalty. Evidence of actual costs must be presented with the written request. This evidence will not prejudice any claim by the person that a violation has not occurred, or that the person is not responsible for the violation. The State Forester shall determine if the actual repair costs are reasonable and reduce the civil penalty accordingly.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.685
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0214

Civil Penalty Administrator Discretion

(1) The civil penalty administrator shall have the discretion to combine violations for the sake of assessing reasonable penalties, under the following circumstances:

(a) Multiple citations have been issued for violations resulting from the same practice;

(b) Multiple citations have been issued for violations resulting in the same damage; or

(c) Upon a finding of the State Forester that a combination of violations is in the public interest and consistent with the policy of the Oregon Forest Practices Act, ORS 527.630.

(2) The civil penalty administrator shall have the discretion to find a penalty is not warranted for reforestation violation cases, when:

(a) The party cited for the violation was not the landowner at the time the harvesting operation reduced stocking below the minimum standards; and

(b) Planting is completed as directed in the repair order.

(3) The civil penalty administrator shall have the discretion to find a penalty is not warranted for cases where all of the following conditions exist:

(a) The violation arose inadvertently;

(b) There was little or no potential for damage;

(c) No damage resulted; and

(d) The cooperation of the operator shows there is little or no chance that the violation will be repeated.

(4) Penalties totaling less than $100 shall be suspended, pending no further violations within one year of issuance of the citation.

(5) The civil penalty administrator shall have the discretion to reduce the amount of the civil penalty when the party assessed:

(a) Agrees to the facts of the case;

(b) Accepts responsibility for the violation; and

(c) Agrees to perform mitigation on the operation unit, or within the watershed, that is equal or greater in value than the amount by which the penalty will be reduced. Examples may include, but are not limited to, any of the following restoration and enhancement activities:

(A) Reconstructing, relocating, or vacating roads that, because of their location, present a higher risk to water quality than if they had been located and designed to current forest practice rule standards;

(B) Restoring or enhancing upstream and downstream fish passage, including replacing crossing structures not designed to current forest practice rule standards;

(C) Restoring or enhancing fish habitat by placing large woody debris or other structures in or adjacent to stream channels;

(D) Retaining conifers adjacent to streams, to supplement current forest practice rule requirements, consistent with forest health considerations;

(E) Restoring or enhancing habitat for threatened and endangered species or other wildlife habitat;

(F) Restoring or enhancing the protection of salmonid production areas. Salmonid production areas include habitat identified through stream or other inventories as being important for spawning, rearing, or over-wintering;

(G) Participating in a research or monitoring program sponsored or endorsed by the Department of Forestry or the Department of Fish and Wildlife;

(H) Participating with Watershed Councils to conduct watershed assessments, develop action plans or implement restoration projects;

(I) Controlling noxious weeds or exotic species; or

(J) Implementing strategies to reduce the risk of catastrophic fire or insect or disease damage.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.685
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02; DOF 2-2013, f. 7-11-13, cert. ef. 9-1-13

629-670-0220

Amount of Penalties; Special Circumstances

(1) Notwithstanding OAR 629-670-0210, when an operator has had three or more separate incidents of forest practice violations within any three year period, the State Forester may assess a civil penalty of any amount up to the limit established in ORS 527.685(1) as may be deemed appropriate to deter the operator from further violation.

(2) For violations involving the harvest or destruction of trees or snags required to be maintained, in order to deter future violations, each tree or snag, or group of trees or snags harvested may be treated as a separate violation when it is appropriate in the judgment of the State Forester, considering the real or potential economic gain of operators involved.

(3) When making the determination in section (2) of this rule, the State Forester may consider any evidence that the improper removal of the trees or snags yielded real or potential economic advantage. Evidence may include:

(a) The market value of the trees or snags at the time they were taken;

(b) The market value of the trees or snags compared with the value of the timber harvested in the operation as a whole; or

(c) The real or potential increase in the value of the land as a consequence of the harvest, including its value for uses other than forestland.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.685
Hist.: FB 2-1995, f. 6-19-95, cert. ef. 7-1-95; DOF 7-2002, f. & cert. ef. 7-1-02

629-670-0300

Civil Penalties Contested Case Hearings Procedures

A person being assessed a penalty has the right to request a hearing and resolution process that allows a fair review of the facts and circumstances of an alleged violation. The Office of Administrative Hearings Rules in OAR 137-003-0501 to 137-003-0700 and the State Forester's procedural rules in 629-001-0000 to 629-670-0055 apply to all civil penalty contested case hearings.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.685 & 527.687
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88 ; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0050; DOF 7-2002, f. & cert. ef. 7-1-02; DOF 3-2004, f. & cert. ef. 2-10-04

629-670-0310

Requesting a Hearing; Stating Claims and Defenses

(1) When requesting a hearing, or within ten (10) days following a request for hearing, the person assessed a civil penalty must admit or deny, in writing, all factual matters stated in the notice of penalty. Any factual matters not denied shall be presumed admitted.

(2) When requesting a hearing, or within 10 days following a request for hearing, the person assessed a civil penalty shall affirmatively state, in writing, any and all claims or defenses the person may have and the reason that supports the claim or defense. Failure to raise a claim or defense shall be presumed to be a waiver of such claim.

(3) Evidence shall not be taken on any issue not raised in the notice and either the request for hearing or a subsequent statement within ten days following the request for hearing as required in sections (1) and (2) of this rule.

(4) When the person requests a hearing, but fails to deny any factual matters stated in the notice of penalty or to state any claims or defenses, either when requesting the hearing or within ten (10) days following a request for hearing, as required in sections (1) and (2) of this rule, a hearing will not be held. Instead, the civil penalty administrator shall submit the citation and any accompanying information used in preparing the notice of penalty to an administrative law judge, who shall prepare a proposed order for final consideration by the Board of Forestry.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.685 & 527.687
Hist.: FB 5-1988, f. 7-27-88, cert. ef. 8-1-88 ; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0060; DOF 7-2002, f. & cert. ef. 7-1-02; DOF 3-2004, f. & cert. ef. 2-10-04

629-670-0315

Requesting a Reduced Civil Penalty Due to Financial Hardship

(1) A person may submit a written request to reduce a civil penalty due to financial hardship. The written request shall be made within the same timelines of the request for hearing in OAR 629-670-0310.

(2) The person asking for a reduced civil penalty due to financial hardship is responsible for submitting evidence of their economic and financial condition to the administrative law judge before the hearing. This evidence shall not prejudice any claim by the person that the violation has not occurred, or that they are not responsible for the violation.

(3) Unless the issue is raised in the person's request for hearing, no evidence may be presented during the hearing on the economic and financial condition of the person. During the hearing, the burden of proof and the burden of going forward with evidence concerning the person's economic and financial condition, shall be upon the person against whom the civil penalty is assessed.

(4) The administrative law judge shall consider the evidence of financial hardship and make separate findings and recommendation in the proposed order that support or reject reducing the amount of any civil penalty.

(5) The board delegates to the State Forester the authority to reach settlement to remit or mitigate the amount of any civil penalty at any time before the board issues a final order regarding financial hardship.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.685 & 527.687
Hist.: DOF 7-2002, f. & cert. ef. 7-1-02; DOF 3-2004, f. & cert. ef. 2-10-04

629-670-0350

Orders Prohibiting New Operations

(1) The purpose of this rule is to respond to situations where an operator or landowner has failed to complete repairs ordered by the State Forester to correct or mitigate damages resulting from a violation of forest practice rules, or has failed to pay civil penalties.

(2) If a final order directing a landowner or an operator to make reasonable efforts to repair damage or correct an unsatisfactory condition issued under ORS 527.680(2)(b) has not been complied with within the time specified by the order, the State Forester may issue an additional order that prohibits the landowner or operator from conducting any new operations on any forestland in Oregon until:

(a) The repairs are completed or the unsatisfactory condition is corrected to the satisfaction of the State Forester; or

(b) The order to prohibit conducting new operations has been revoked or modified following an appeal under the procedures of ORS 527.700.

(3) If a final order issued to a landowner or an operator under ORS 527.687 imposing civil penalties has not been complied with within the time specified by the order, the State Forester may issue an additional order that prohibits the landowner or operator from conducting any new operations on any forestland in Oregon until:

(a) The civil penalty payment is received by the State Forester; or

(b) The order to prohibit conducting new operations has been revoked or modified following an appeal under the procedures of ORS 527.700.

(4) The intent of an order issued under the provisions of section (2) or section (3) prohibiting a landowner or operator from conducting new operations is to compel timely compliance by the operator with either an order to repair damage or correct an unsatisfactory condition or a final order requiring payment of a civil penalty. Orders may be issued in addition to any other remedy available to the State Forester under statute or rule to compel compliance. Orders may be issued when, in the opinion of the State Forester, the other available remedies would likely be less effective in compelling compliance in a timely manner.

(5) For the purpose of this rule, "new operation" means any operation requiring notification to the State Forester under the provisions of OAR 629-605-0140 and 629-605-0150 for which a notification has not been received by the State Forester, or, if a notification has been received, operation activity has not started before an order prohibiting new operations is issued under sections (2) or (3) of this rule to the landowner or operator.

Stat. Auth.: ORS 527.710 & 526.016
Stats. Implemented: ORS 527.680
Hist.: DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 7-2002, f. & cert. ef. 7-1-02

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