justicedao/ipfs_state_laws huggingface dataset:
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. Statutory/Other Authority: ORS 527.710, 526.016(4), 527.714 & 527.715 Statutes/Other Implemented: ORS 527.680, 527.683, 527.685, 527.990 & 183.310 - 183.550 History: 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, 629-670-0120, or 629-670-0125; or (2) Citation under OAR 629-670-0130 and ORS 527.680. Statutory/Other Authority: ORS 527.710 & 526.016 Statutes/Other Implemented: ORS 527.680, 527.683, 527.990 & 527.992 History: DOF 7-2002, f. & cert. ef. 7-1-02 DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0020 FB 5-1988, f. 7-27-88, cert. ef. 8-1-88
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. Statutory/Other Authority: ORS 527.710 & 526.016 Statutes/Other Implemented: ORS 527.680, 527.683, 527.990 & 527.992 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 7-2002, f. & cert. ef. 7-1-02
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. Statutory/Other Authority: ORS 527.710, 526.016(4), 527.714 & 527.715 Statutes/Other Implemented: ORS 527.680, 527.683, 527.685, 527.990 & 183.310 - 183.550 History: 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. Statutory/Other Authority: ORS 527.710, 526.016(4), 527.714 & 527.715 Statutes/Other Implemented: ORS 527.674, 527.680, 527.683, 527.685, 527.990 & 183.310 - 183.550 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 7-2002, f. & cert. ef. 7-1-02
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). Statutory/Other Authority: ORS 527.710 & 526.016 Statutes/Other Implemented: ORS 527.680, 527.683, 527.990 & 527.992 History: 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. Statutory/Other Authority: ORS 527.710 & 526.016 Statutes/Other Implemented: ORS 527.680, 527.683, 527.990 & 527.992 History: DOF 7-2002, f. & cert. ef. 7-1-02
629-670-0200 Assessment of Civil Penalties; Notice of Penalty Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023. (1) In addition to any other remedy, the State Forester may assess a civil penalty for any violation described in ORS 527.992( 1) or 527.793. (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. Statutory/Other Authority: ORS 527 & Section 2(1), Chapter 33, Oregon Laws 2022 Statutes/Other Implemented: ORS 527.683, 527.687, 527.992 & 527.793 History: DOF 5-2022, amend filed 11/09/2022, effective 07/01/2023 DOF 7-2002, f. & cert. ef. 7-1-02 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0030 FB 4-1992, f. & cert. ef. 4-21-92 FB 5-1988, f. 7-27-88, cert. ef. 8-1-88
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. Statutory/Other Authority: ORS 527.710 & 526.016 Statutes/Other Implemented: ORS 527.685 History: DOF 7-2002, f. & cert. ef. 7-1-02
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. Statutory/Other Authority: ORS 527 Statutes/Other Implemented: ORS 527.685 History: DOF 7-2002, f. & cert. ef. 7-1-02 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95
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. Statutory/Other Authority: ORS 527 Statutes/Other Implemented: ORS 527.685 & 527.687 History: DOF 3-2004, f. & cert. ef. 2-10-04 DOF 7-2002, f. & cert. ef. 7-1-02 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0050 FB 5-1988, f. 7-27-88, cert. ef. 8-1-88
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. Statutory/Other Authority: ORS 527 Statutes/Other Implemented: ORS 527.685 & 527.687 History: DOF 3-2004, f. & cert. ef. 2-10-04 DOF 7-2002, f. & cert. ef. 7-1-02 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0060 FB 5-1988, f. 7-27-88, cert. ef. 8-1-88
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. Statutory/Other Authority: ORS 527 Statutes/Other Implemented: ORS 527.685 & 527.687 History: DOF 3-2004, f. & cert. ef. 2-10-04 DOF 7-2002, f. & cert. ef. 7-1-02
629-672-0100 Orders of the State Forester Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023. (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)). (f) An order requiring an operator, timber owner, or landowner to provide financial assurance pursuant to section 45(6), chapter 33, Oregon Laws 2022. (g) An order that an operator, timber owner or landowner has a history of significant violations pursuant to section 46(6), chapter 33, Oregon Laws 2022. (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. Statutory/Other Authority: ORS 526.016, 526.041 & Section 2(1), Chapter 33, Oregon Laws 2022 Statutes/Other Implemented: ORS 527.662 & 527.674 History: DOF 13-2023, minor correction filed 07/01/2023, effective 07/01/2023 DOF 5-2022, amend filed 11/09/2022, effective 07/01/2023 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 3-1999, f. & cert. ef. 7-13-99 DOF 7-1998, f. 3-31-98, cert. ef. 5-1-98 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0100 FB 2-1989, f. & cert. ef. 9-20-89
629-672-0200 Hearings for Operators, Landowners or Timber Owners Note: This rule applies to all operations for which a notification is filed under ORS 527.670(6) on or after January 1, 2024 or a notification filed prior to January 1, 2024 if the operation is not completed on or before December 31, 2023. Rules that relate to fish streams apply to an operation, other than an operation on small forestland, for which a notification is filed on or after July 1, 2023. (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 and 527.992 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. Statutory/Other Authority: ORS 527 & Section 2(1), Chapter 33, Oregon Laws 2022 Statutes/Other Implemented: ORS 527.700 History: DOF 5-2022, amend filed 11/09/2022, effective 07/01/2023 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 FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0110 FB 2-1989, f. & cert. ef. 9-20-89