141-082-0310 Removal of Unauthorized Structures (1) The Department is authorized to seize a structure on, under or over state-owned submerged or submersible lands, if; (a) The Department determines, after providing notice and opportunity for a hearing, that the structure is an abandoned structure or a derelict structure; and (b) The owner of the structure has failed to correct the problems identified in the notice within 20 days or a longer reasonable time as specified in the notice or within any additional time that may be granted by the department. (2)(a) The notice required under subsection (1) of this section must be delivered by certified mail, return receipt requested, to any person with an interest in the structure or the land upon which the structure is located, as determined by the Department after diligent investigation. “Diligent investigation” shall include the following: (A) A search of the county real property records to identify the record owner of the submerged or submersible lands where the structure is located, and the record owner of the adjacent upland. (B) Additional investigation warranted by the circumstances. (b) The notice required under subsection (1) of this section must: (A) Be delivered to the record owner of the submerged or submersible lands where the structure is located, if the record owner is not the State of Oregon. (B) Be delivered to the record owner of the adjacent upland. (C) Identify, with specificity, the Department’s proprietary interest in and jurisdiction over the state-owned submerged or submersible lands where the structure is located. If the record owner of the submerged or submersible lands is not the State of Oregon, identify the Department’s basis for asserting State ownership of the submerged or submersible lands, and state that the recipient has the right to contest the State’s claim of ownership. (3) The Department shall contact the property owner(s) who own riparian land that is adjacent to where the abandoned or derelict structure is located. (4) Any person with an interest in the structure must, within 20 days of service of the notice, either; (a) Provide written notice to the Department of their intent to authorize or remove the structure, or, (b) Request a hearing. The notice must be on a form provided by the Department. (5) If a person with an interest in the structure wants to obtain an authorization from the Department, the owner of the structure must submit a complete application within 30-days of service of the notice. (a) Submission of an application under this section does not ensure that an authorization would be issued. (b) If an application is submitted, the Department may not seize the structure while the application is under review. (6) If a person with an interest wishes to remove the structure, that person must do so within 90 days of notice, or as otherwise agreed to by the Department. (7) If a person with an interest in the structure wants to challenge the actions proposed in the notice, the person may request a hearing. (a) The hearing request must be received by the Department within 20 days of service of the notice. (b) The request must indicate if the person contends that the structure is not abandoned or derelict, or indicate such other specific grounds on which seizure is challenged (c) Upon receipt of a request for a hearing, the Department shall suspend further action to seize the structure until the Director issues the Department’s Final Order. (8) Upon receipt of a request for a hearing, the Department shall process the hearing request as follows: (a) The Department shall refer the matter to the Office of Administrative Hearings for a contested case hearing. (b) The Administrative Law Judge shall issue a proposed order, making a recommendation for the Department’s Final Order. (9) After the hearing: (a) The Director shall issue a Final Order, which is an order in a contested case and is subject to review under ORS 183.482. (b) If the Department determines after a hearing that seizure of the structure is not warranted under the law, the Department shall immediately release custody of the structure to the owner who requested the hearing and may not charge the owner any costs incurred by the Department in removal, salvage, storage or disposal of the structure. (c) If the Department determines after a hearing that seizure of the structure is warranted, the Department may seize the structure and remove, salvage or dispose of it, as the Department deems appropriate. (d) The Department shall mail a written statement of the Department’s Final Order to all persons who requested a hearing under this section. (10) If the owner fails to either; (a) submit an application for an authorization, (b) remove the structure or (c) request a hearing within the time allowed in the notice, the Department’s Notice shall become a Final Order by Default and the Department may immediately seize the abandoned or derelict structure. The Department may remove, salvage, store or dispose of any structure seized under this section. (11) Nothing in these rules affects the ability of the Department to: (a) Investigate and prosecute trespasses on and damage to state lands under ORS 273.185; or (b) Immediately seize without notice a structure that presents a hazard to navigation or an imminent threat to public health or safety. (12) If the Department seizes a structure without notice under this subsection and the Department decides to salvage or dispose of the structure, the Department shall provide notice as provided for in OAR 141-082-0310(2). (13) The owner of an abandoned or derelict structure is liable to the Department for all costs arising out of removal, salvage, storage and disposal of a structure seized under this rule. However, an owner of a structure whose only interest in the structure is a security interest is not liable for costs arising out of the removal, salvage, storage or disposal of a structure under these rules. Any order imposing liability for the costs is an order other than a contested case and is subject to review under ORS 183.484. (14) If the Department sells a structure seized under this rule, the liability imposed upon the owner shall be reduced by the net proceeds of the sale. (15) For removal or seizure of abandoned and derelict vessels, the Department shall follow the process outlined in ORS 830.908 through 830.944. Statutory/Other Authority: ORS 183, 273 & 274 Statutes/Other Implemented: ORS 274 History: DSL 5-2016, f. 11-3-16, cert. ef. 1-1-17 DSL 5-2012, f. 10-16-12, cert. ef. 1-1-13