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DEPARTMENT OF FORESTRY

 

DIVISION 672

FOREST PRACTICES ADMINISTRATION

629-672-0100

Orders of the State Forester

(1) As used in OAR 629-672-0100 to 629-672-0310, order of the State Forester issued under ORS 527.610 to 527.770 means:

(a) An order denying approval of a plan for an alternate practice (OAR 629-605-0173(3)).

(b) An order to repair damage or correct unsatisfactory condition (ORS 527.680(2)(b)).

(c) Temporary order to cease further activity (ORS 527.680(3)).

(d) An order prohibiting new operations (ORS 527.680(5)).

(e) An order denying approval of a stewardship agreement (ORS 527.662(13)).

(2) Whenever an order affecting an operator, timber owner or landowner is issued under ORS 527.610 to 527.770, notice of the order shall be given to the affected party by personal service or certified mail. As used in this section, 'personal service' means service on the party by any officer, employee, or agent of the Oregon State Department of Forestry. The notice shall include:

(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 person's right to request a hearing within 30 days from the date of service;

(d) A statement that the notice becomes a final order unless the person makes a written request for a hearing within 30 days from the date of service or mailing of the notice; and

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

Stat. Auth.: ORS 526.016 & 526.041
Stats. Implemented: ORS 527.662 & 527.674
Hist.: FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0100; DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98; DOF 3-1999, f. & cert. ef. 7-13-99; 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

629-672-0200

Hearings for Operators, Landowners or Timber Owners

(1) As provided in ORS 527.700(1), any operator, timber owner or landowner affected by a finding or order of the State Forester issued under ORS 527.610 to 527.770 may request a hearing within 30 days of the issuance of the order. The request for a hearing shall be in writing and must include a specific statement as to the reasons for disputing the State Forester's order, including but not limited to disagreement with any findings leading to the order. In addition, the request for hearing shall state what relief from the order is sought.

(2) Hearings under this rule shall be conducted as contested case proceedings under ORS 183.413 to 183.470.

(3) The hearing shall be commenced within 14 days after receipt of the request for hearing and a final order shall be issued within 28 days of the request for hearing unless all parties agree to an extension of the time limits.

(4) An administrative law judge from the Office of Administrative Hearings shall conduct hearings under ORS 527.700. The administrative law judge shall conduct the hearing and prepare the record for filing with the board within five working days of the close of the hearing. Except as provided in section (5) of this rule, no less than a majority of the board shall then review and consider the record, hold a meeting or telephone conference, and issue a final order.

(5) If upon a determination by the chairperson of the Board of Forestry, the board cannot complete a final order in the matter within 28 days of the request for a hearing, the chairperson may delegate the authority to issue a final order to the administrative law judge as provided in ORS 527.700(2).

(6) Failure of the person requesting the hearing to appear at the hearing shall be deemed a default and shall result in a final order being entered upon a prima facie case made on the record of the agency.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.700
Hist.: FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0110; 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

629-672-0210

Hearings for Persons Adversely Affected by an Operation for Which a Written Plan is Required under ORS 527.670(3)

(1) If a written plan under ORS 527.670(3) is required for an operation, any person who submitted written comments on the operation and who is adversely affected or aggrieved by the operation may file a request to the board for a hearing on the plan. The request shall be filed and copies served on the operator, timber owner and landowner personally or by certified mail within 14 days of the date the comment period for the State Forester ended, whether or not comments were issued. The request shall include:

(a) A copy of the written plan on which the hearing is requested.

(b) A copy of the comments on the written plan submitted by the person requesting the hearing.

(c) The person's name and address and the organization represented;

(d) If represented by an attorney, the name and address of the attorney representing the person;

(e) A detailed statement of the person's interest and of how such interest may be affected by the results of the proceeding;

(f) A detailed statement of the fact regarding how the person's interest is affected by the Forest Practices Act or rules adopted thereunder;

(g) A detailed statement of fact showing that the operation is the type described in ORS 527.670(3);

(h) A brief statement of what board action is sought by the person.

(2) Upon receipt of a request provided under section (1) of this rule, the State Forester shall determine whether the request meets the requirements of ORS 527.700(3) through (5). In making this determination, the State Forester shall consider:

(a) Whether the person has demonstrated a personal or public interest that could reasonably be affected by the outcome of the proceeding;

(b) Whether any such affected interest is within the scope of the board's jurisdiction;

(c) The interest the petitioner represents and the qualifications the petitioner possesses in cases in which a public interest is alleged;

(d) Whether the person could reasonably be considered to be affected by the Forest Practices Act or rules adopted thereunder.

(3) If the State Forester determines that the person making the request meets the requirements of ORS 527.700(3) through (5), the State Forester shall send written notification of the date of the hearing to the person requesting the hearing and to the timber owner, landowner and operator.

(a) The hearing date shall be no later than 21 days from the receipt of the request for hearing.

(b) The notice of hearing shall contain the statements that:

(A) Failure of the person requesting a hearing to appear at the hearing shall be deemed a default and a record of the proceedings to date, including the agency file or files on the subject of the written plan, automatically becomes a part of the record for the purpose of providing a prima facie case upon which default may be granted; and

(B) The hearing shall be conducted by an administrative law judge, according to 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 629-001-0055.

(4) If the State Forester determines that the person making the request does not meet the requirements of ORS 527.700(3) through (5) the State Forester shall recommend to the chairperson of the Board of Forestry that a hearing be denied for cause. The chairperson, upon review of the request for hearing and the State Forester's recommendation, shall either:

(a) Issue a final order on behalf of the board, denying a hearing for cause; or

(b) Direct the State Forester to schedule a hearing and send notices as required in section (3) of this rule.

(5) Failure of the person requesting the hearing to appear at the hearing shall be deemed a default. Based upon a prima facie record the State Forester's comments and recommendations, if any, must stand.

(6) The landowner, timber owner or operator shall be made a party to the proceeding.

(7) The person requesting the hearing under these provisions may only present evidence on those issues raised in the person's written comments to the written plan filed under ORS 527.670(9) relating to conformity with the rules of the board.

(8) The administrative law judge shall conduct the hearing and prepare the record for filing with the board within five working days of the close of the hearing. Except as provided in section (10) of this rule, no less than a majority of the board shall then review and consider, hold a meeting or telephone conference, and issue their comments.

(9) Unless consent to an extension is granted by all parties, the board shall issue its own comments no later than 45 days after the request for hearing was filed. The board may affirm, modify or rescind the comments of the State Forester, if any. The comments of the board or the State Forester concerning a written plan cannot be appealed under ORS 183.482.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.700
Hist.: FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0120; DOF 3-2004, f. & cert. ef. 2-10-04; 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

629-672-0300

Stay of Operation

(1) The State Forester is authorized to issue temporary orders pertaining to a stay of operations under ORS 527.700(8).

(2) Any person entitled to a hearing under OAR 629-672-0210 may apply to the State Forester for a stay of the operation pending a hearing on the matter. The request for a stay shall include:

(a) The name, address and telephone number of the person filing the request, identifying that person as a petitioner; and the names, addresses and telephone numbers of each of the other parties to the proceedings, identifying those parties' roles in the proceedings. When any party is represented by an attorney in the proceeding, then the name, address and telephone number of the attorney shall be provided and the address and telephone number of the party may be omitted;

(b) Identification of the operation for which the stay is requested;

(c) A statement of facts and reasons sufficient to show that the stay request should be granted because:

(A) Commencement or continuation of the operation will constitute a violation of the rules of the board;

(B) The person requesting the stay will suffer irreparable injury if the stay is not granted;

(C) The person requesting the stay has met the requirements of ORS 527.700(3), (4) and (5); and

(D) Granting the stay will not result in substantial public harm.

(d) A statement identifying any potential injury to the other parties in the matter if the stay is granted. If the purposes of the stay can be achieved with limitations or conditions that minimize or eliminate possible injury to other persons, petitioner shall propose such limitations or conditions. Petitioner shall propose an amount of bond or other undertaking, not less than $15,000 to be imposed on the petitioner should the stay be granted, explaining why that amount is reasonable in light of the identified potential injuries;

(e) A description of any other procedures, if any, the petitioner believes should be followed by the State Forester in determining the appropriateness of the stay request; and

(f) An appendix of affidavits containing all evidence upon which the petitioner relies in support of the statements required in subsections (2)(c) and (d) of this rule.

(3) The request for stay and all required accompanying documents must be filed with the State Forester at the same time the request for a hearing is filed.

(4) The State Forester shall notify the parties listed in the petition for stay, that they may participate in the stay proceeding if they file a response in accordance with section (5) of this rule. The State Forester shall include in this notice a time certain for filing a response to the request for stay.

(5) The landowner, timber owner or operator may file a response to the request for stay. The response shall contain:

(a) The name, address, and telephone number of the person filing the response, except that if the person is represented by an attorney, then the name, address, and telephone number of the attorney shall be included and the person's address and telephone number may be deleted;

(b) A statement accepting or denying each of the statement of facts and reasons provided in the petitioner's stay request;

(c) A statement accepting, rejecting, or proposing alternatives to the petitioner's statement on the bond or undertaking amount or other reasonable conditions that should be imposed on petitioner should the stay request be granted.

(6) The response may contain affidavits containing additional evidence upon which the person relies in support of the statement required under subsections (5)(b) and (c) of this rule.

(7) The response must be delivered or mailed to the State Forester and to all parties identified in the stay request.

(8) After the deadline for filing responses, the State Forester may:

(a) Issue a temporary order on the stay upon the basis of the material before the State Forester; or

(b) Conduct such further proceedings as the State Forester deems desirable; or

(c) Determine that the circumstances reasonably permit delay of consideration of a stay until the hearing.

(9) The State Forester's temporary order may:

(a) Grant the stay upon a showing that commencement or continuation of the operation will constitute a violation of the rules of the board, the person requesting the stay will suffer irreparable injury if the stay is not granted, and the requirements of ORS 527.700(3), (4) and (5) are met. The State Forester shall limit the effect of the stay to the specific geographic area or elements of the operation for which the person requesting the stay has demonstrated a violation of the rules and irreparable injury;

(b) Deny the stay request upon a finding that the petitioner failed to show that the requirements of ORS 527.700(8)(a) are met or granting the stay will result in substantial public harm.

(10) If the State Forester grants the stay, the person requesting the stay shall be required to give an undertaking which may be in the amount of the damages potentially resulting from the stay, but in any event shall not be less than $15,000. The undertaking shall be in the form that the State Forester determines best protects the interests of the person against whom the stay is imposed. In the event the written plan for which the stay was granted is affirmed in whole or in part, the State Forester shall retain the undertaking until all damages, including attorney fees, costs and expenses have been paid.

(11) The State Forester's temporary order shall be subject to review as part of the hearing reviewing the written plan. The temporary order of the State Forester may be affirmed, rescinded or modified by final order of the Board.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.700
Hist.: FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0140

629-672-0310

Actual Damages Resulting from a Stay; Attorney's Fees

(1) If the board determines in its comments that the written plan of an operation for which a stay was granted is likely to result in compliance with ORS 527.610 to 527.770 or the rules of the board, the board shall award actual damages in favor of each prevailing party against the person requesting the stay. A landowner, timber owner, or operator against whom a stay was entered may petition for actual damages for the portion of the case upon which it prevailed.

(2) The board may award reasonable attorney's fees and expenses to each of the prevailing parties against any other party who the board finds presented a position without probable cause to believe the position was well founded, or made a request primarily for a purpose other than to secure appropriate action by the board. If a written plan pertaining to an operation for which a stay was granted is determined to likely result in compliance with the Forest Practices Act and rules, the board shall award reasonable attorney's fees in favor of each of the prevailing parties against the person requesting the stay. If the board rescinds or modifies the comments on the written plan as submitted by the State Forester pertaining to any operation, the board shall award reasonable attorney's fees and costs against the state in favor of each of the prevailing parties. Any prevailing party, as described above, may file a petition for attorney's fees, expenses and costs for the portion of the case upon which it prevailed.

(3) An award of attorney's fees shall not exceed $5,000.

(4) As used in this rule, a "prevailing party" is one in whose favor an order pertaining to a written plan is issued, and may include the Department of Forestry where a written plan is affirmed. Where the board rescinds or modifies the comments on portions of a written plan and determines that other portions will likely result in compliance with the FPA or rules, each party may be regarded as a prevailing party.

(5) "Actual damages" include but are not limited to costs such as:

(a) Penalties for non-performance of contracts;

(b) Losses due to market fluctuations;

(c) Payments for crew stand-by;

(d) Equipment down-time;

(e) Move-in and move-out costs; and

(f) Loss in value of logs left sitting on the site for long periods.

(6) Attorney's fees, expenses and costs shall include only the following:

(a) The actual amount of fees charged by the attorney for services directly connected with prosecuting or defending against the challenge to the written plan; or

(b) Where the prevailing party is not charged a specific fee for the case (e.g., because the attorney is paid on a retainer basis or is an employee of the party), the fee shall be the reasonable value of the attorney's services directly connected with prosecuting or defending against the challenge to the written plan. "Reasonable value" means the equivalent of the fees charged by practitioners of similar skill and experience under section (6)(a) of this section, and includes such secretarial and other overhead costs as are customarily included in those fees.

(7) A prevailing party must file a petition and supportive affidavit for award of actual damages from a stay or attorney fees within 30 days of the date of the issuance of the board's comments in the case for which awards are requested. A copy of the petition, together with a supporting affidavit, shall be served upon the opposing party or parties at the time the petition is filed and proof of service shall be provided to the board. The board shall dismiss petitions which do not comply with this rule. The petition shall include:

(a) A statement of the facts upon which petitioner relies in claiming that it is a prevailing party;

(b) A statement of the amount of award requested, supported by an affidavit that describes in detail the actual damages incurred and the basis for the amount of damages requested; or amount of the fees incurred by petitioner, or where the petitioner was not charged fees, the basis for the amount of the costs requested; and

(c) A statement describing how the amount of the award requested would be consistent with the policies and the purposes of the Oregon Forest Practices Act.

(8) An opposing party shall have 14 days from the date of service of the petition to file written objections. Such objections shall be served on the petitioner at the time the objections are filed and proof of service shall be provided to the board.

(9) In designating the amount of fees and costs to be awarded, the board shall consider, but is not limited to, the following factors:

(a) Consistency with the policies and purposes of the Oregon Forest Practices Act including but not limited to the following considerations:

(A) The issue in the case was one of first impression; or

(B) A complaint or defense was frivolous or otherwise without merit; or

(C) A party was an individual who, due to the circumstances of the case, had to rely upon his or her personal financial resources.

(b) In the case of attorney's fees, the appropriate charges for the services rendered, based on:

(A) The time and labor customarily required in the same or similar cases;

(B) Hourly charges customarily made by attorneys for rendering similar services;

(C) The novelty and difficulty of the issues and the amount of preparation, research or briefing reasonably required; and

(D) The skill requisite to perform the services properly.

(c) Awards in similar cases.

(10) The administrative law judge who presided over the hearing on the written plan shall examine the petition for award of actual damages or attorney's fees and any associated arguments. The administrative law judge may require the parties to provide additional information or conduct hearings as the judge deems necessary. The administrative law judge shall prepare a proposed order for the board.

(11) The board shall review the administrative law judge's proposed order and issue a final order awarding actual damages or attorney's fees pursuant to this section, based upon the record. The board may award all or a portion of the actual damages or fees requested. The board will not act on a petition until the appeal period has run or, where an appeal has been filed, during the pendency of the appeal.

Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.700
Hist.: FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0150; DOF 3-2004, f. & cert. ef. 2-10-04; 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

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