629-042-0100 Liability of Forestland Owner or Operator; Further Defined (1) Under ORS 477.120(6), “if a fire originates while an operation is in progress, there is a presumption, under 40.120, that the fire originated as a result of the operation.” “Operation in progress” as defined by 477.001(19) means “that time when workers are on an operation area for the purpose of an operation, including the period of time when fire watches are required to be on the operation area pursuant to 477.665.” “Operation area” is defined by 477.001(18) to mean “the area on which an operation is being conducted and the area on which operation activity may have resulted in the ignition of a fire.” (2) When determining whether the presumption in ORS 477.120(6) applies, the forester must determine whether the fire origin was on an operation area. In doing so, the forester may: (a) Include any area where an ignition source of any type connected with the operation activity could reasonably be determined to reach flammable material, such as: (A) On or adjacent to the area specifically described in the notice of operation required in ORS 527.670 or the permit to operate power driven machinery required in 477.625, regardless of ownership; or (B) On an area, regardless of whether a notice of operation or application for a permit to operate power driven machinery was properly submitted, that is: (i) Within or adjacent to the timber cutting boundary of a harvest unit or road construction project or within or adjacent to the area of other planned operation activity; (ii) Within or adjacent to where power driven machinery has been operated; (iii) Within or adjacent to where workers have worked, traversed to access their work, traversed to return to their transports or taken breaks; (iv) Within or adjacent to where logging lines, rigging, carriages or blocks have been operated; or (v) Where vehicles connected with the operation activity have been operated over or adjacent to flammable materials, such as a turnaround, trail or road that is within the area of planned operation activity. (b) Not include any area outside the area described in subsection (a) of this section where the only operation activity consists of hauling logs or workers traveling to and from the operation on improved roads in properly maintained vehicles authorized for use on such roads by the motor vehicle laws of this state. (c) For the purposes of this section, “improved road” means a road maintained for the use of passenger vehicles and that is clear of flammable vegetation or debris. (3) Notwithstanding section (2) of this rule, any direct evidence of the fire cause that links the origin of a fire to operation activity allows the forester to hold the owner or operator responsible under the provisions of ORS 477.120(2)(b). (4) Under ORS 477.120(5) an owner or operator is not eligible for the limits on liability provided in 477.120(3) or (4) “if the owner or operator fails to make every reasonable effort.” (5) ORS 477.001(6) defines “every reasonable effort” to mean “the use of the reasonably available personnel and equipment under the supervision and control of an owner or operator, which are needed and effective to fight the fire in the judgment of the forester and which can be brought to bear on the fire in a timely fashion.” (6) “Every reasonable effort” is by design a standard that will differ by each owner’s or operator’s individual circumstance. If the forester determines it is practicable to do so, the forester, in cooperation with the owner or operator in the early stages of a fire, will make an initial assessment of the “reasonably available personnel and equipment” that can be provided by the owner or operator. If the forester determines that such a cooperative assessment is not practicable, the forester must make the assessment using the best information available at the time. The determination of resources required to suppress the fire may change as necessary throughout the duration of the fire and shall be communicated to the owner or operator as such changes occur. (7) As used in ORS 477.001(6) pursuant to 477.120(5), “reasonably available personnel and equipment under the supervision and control of an owner or operator”: (a) May include resources such as: (A) The owner or any operators involved in the subject operation, if natural persons; (B) Any person employed by the owner or any operators whose operations are involved in the fire, or any person contracted or subcontracted by the owner or any operators to work on any operation involved in the fire; (C) Equipment of any type, other than aircraft, owned by the owner or operator, or rented, leased, or otherwise under the control of the owner or operator that is not barred from use in fire suppression by the nature of the contractual arrangement and that, in the judgment of the forester, is needed and can be effective in the effort to suppress the fire; or (D) Notwithstanding paragraph (C) of this subsection, aircraft that are already in use as part of the operation or burning activity that resulted in the fire, for the remaining daylight hours of the day the fire was first attacked and for one subsequent daylight burning period. (b) May not include: (A) Aircraft that are not in use as part of the operation or burning activity that resulted in the fire; (B) Personnel or equipment that are already actively engaged in a fire management or suppression effort at a different location; (C) Personnel or equipment that are actively completing fire watch requirements on another operation; (D) Any personnel or equipment that are currently located more than 100 miles from the fire unless the personnel or equipment would normally be returning to a location within 100 miles of the fire within the time that they are needed to suppress the fire; (E) Any personnel or equipment that are currently located less than 100 miles from the fire, but that would have to cross jurisdictional boundaries such as state lines, if doing so would necessitate licensing, permitting, or other such requirements that could not reasonably be met within the time the resource is needed to suppress the fire; (F) Employees who, for reasons of physical capability or unfamiliarity with forestland conditions, cannot reasonably be expected to meet requirements for persons employed in firefighting in accordance with Oregon Occupational Safety and Health Standards, OAR chapter 437, division 7 within the time they are needed to suppress the fire; or (G) Employees who, for reasons of court ordered restrictions or military obligation cannot reasonably be expected to be available for firefighting within the time they are needed to suppress the fire. (c) For the purposes of this section, “equipment” may include, but is not limited to maps, lists or geographic information databases that contain information such as location of roads, terrain, fuel concentrations, water sources, or location of firefighting resources that the forester determines may be helpful in suppressing the fire. (8) Nothing in this rule is intended to discourage or restrict the owner or operator from voluntarily providing resources in addition to those specified in section (7) of this rule. Statutory/Other Authority: ORS 526.041(1) Statutes/Other Implemented: ORS 477.120 History: DOF 6-2006, f. & cert. ef. 5-9-06