603-082-0090 Withdrawal of Unproductive and Abandoned Lands (1) The rules of procedure in OAR 603-082-0090 are in addition to the procedural requirements of the Attorney General's Model Rules of Procedure, codified at OAR 137-003-0501 to 137-003-0692. In the case of conflict, this division controls over the Model Rules, unless the Model Rules establish a mandatory requirement. (2) The director may issue a proposed order withdrawing any portion of a plat from a claimant if the director finds the portion of the plat is unproductive or abandoned as described in ORS 622.280 and OAR 603-082-0090(3). The proposed order shall include or be accompanied by the following: (a) A caption with the name of the department, the name of the claimant and a case number if used; (b) A short and plain statement describing the purpose and effect of the proposed order, and the factual and legal basis for it, including citation to the statutes and rules relied upon; (c) A statement of the claimant's right to challenge the proposed order by requesting a hearing, and that the request must meet the following requirements: (A) A request for hearing must identify the matter appealed by the claimant's name, the date of the proposed order and the department's case number, if any; (B) A request for a hearing must explain how the claimant considers the proposed order to be legally or factually incorrect. (C) To be timely, a request for a hearing must be received by the department by the close of business on the 30th day after the date of the proposed order. (d) A statement of additional rights and risks of the claimant, including at least the following: (A) A statement informing the claimant that if a request for hearing is not received by the department by the established date, the claimant will have waived the right to a hearing and the proposed order will be final. (B) A hearing in response to a request will be limited to the issues raised in the request; (C) The claimant has the right to be represented by an attorney, but if the claimant is an agency, a corporation or an unincorporated association, the claimant must be represented by an attorney. (e) How to get more information and the department staff member and address or facsimile number to which a request for hearing must be sent. (f) A hearing shall be conducted pursuant to ORS 183.415 et seq. (3) Pursuant to ORS 622.280, a plat or portion of a plat may be found to be unproductive or abandoned under any of the following circumstances: (a) If more than one-half the lands in the plat are unproductive for a period of three years or more after the filing of the plat under chapter 675, Oregon Laws 1969. Lands are unproductive when: (A) The claimant fails to pay the fees or use taxes referred to in ORS 622.290, unless the department determines that there was reasonable cause for such failure. (B) Evidence shows that cultivated oysters, clams or mussels have not been produced or harvested for a period of three years. (b) If any portion of a plat is not marked in the manner provided by ORS 622.320, that portion of the plat may be considered abandoned. (c) If any portion of a plat is held by a claimant for purposes other than oyster, clam or mussel cultivation, that portion of the plat may be considered abandoned. (d) Evidence indicates that the plat is being used in a manner contrary to the conditions imposed on the plat as indicated in the Final Order and Grant Certificate. (e) When the claimant requests in writing that their rights, claims and leases to any portion of a plat be terminated by the department. (4) Lands may not be found to be abandoned if the reason for unproductiveness is any of the following: (a) Restrictions imposed by governmental health authorities; (b) The unavailability of seed; or (c) Infestation of the plat by pest or disease. (5) Nothing in this rule affects any oyster cultivation right acquired prior to January 1, 1982, pursuant to chapter 675, Oregon Laws 1969. Statutory/Other Authority: ORS 561.190 Statutes/Other Implemented: ORS 622.280 & 622.310 History: DOA 11-2003, f. & cert. ef. 2-27-03