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. Statutory/Other Authority: ORS 527 Statutes/Other Implemented: ORS 527.700 History: DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06 DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06 DOF 3-2004, f. & cert. ef. 2-10-04 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0150 FB 2-1989, f. & cert. ef. 9-20-89