Washington Administrative Code › Title 223 - Environmental and Land Use Hearings Office (Pollution Control Hearings Board-Forest practices) › Chapter 223-08 - Rules of procedure › Section 223-08-087 - Commencing an appeal-Temporary suspension or discontinuance (stay)

Current through Register Vol. 24-14, July 15, 2024
Any county appealing under RCW     76.09.050(8) or any person
				aggrieved appealing under RCW     76.09.205 may seek a stay of the department's
				approval, in whole or in part, pending such appeal. Any operator, timber owner,
				or forest land owner appealing under RCW     76.09.080 may seek a stay of the stop
				work order, in whole or in part, pending such appeal. The following procedure
				shall apply:
(1) The appellant shall
			 file with the appeals board a motion, supported by affidavit setting forth
			 specific facts supporting a stay. Such motion may be filed with the notice
			 commencing the appeal or at any time thereafter prior to the final decision of
			 the appeal by the appeals board.
(2) Upon receipt of said motion, the
			 presiding officer shall schedule a conference and serve notice of the
			 conference on all parties to the appeal. At the conference, a briefing schedule
			 will be established to address the motion. Before or after the commencement or
			 completion of briefing the presiding officer may determine that an evidentiary
			 hearing is required. The hearing of the merits of the appeal may be
			 consolidated with said hearing.
(3)
			 After the briefing is completed, the appeals board or the presiding officer may
			 stay the department's approval or a stop work order, in whole or in part, or
			 decline to stay. Such action shall be based solely on the record, and shall be
			 embodied in a written order. Orders issued under this subsection shall remain
			 effective until the final decision of the appeals board unless sooner dissolved
			 for good cause shown.
(4) In
			 emergency situations, a stay in whole or in part may be granted by the
			 presiding officer without a conference and/or briefing, only if it clearly
			 appears from specific facts shown by affidavit that immediate and irreparable
			 injury, loss, or damage will result to the moving party before any adverse
			 party can be heard in opposition. A stay granted without briefing shall be
			 embodied in a written order and shall expire by its terms within such time
			 after entry, not to exceed fourteen days, as provided therein unless within the
			 time so fixed the order, for good cause shown, is extended for a like period or
			 unless the party against whom the order is directed consents that it may be
			 extended for a longer period. The reasons for the extension shall be entered of
			 record. On two days' notice to the party who obtained the stay without notice
			 or on such shorter notice to that party as the presiding officer may prescribe,
			 the adverse party may appear and move its dissolution or modification and in
			 that event the presiding officer or appeals board shall proceed to review and
			 determine such motion as expeditiously as the ends of justice
			 require.
(5) Every order staying
			 the department's approval of an application or a stop work order, whether
			 issued before or after briefing, shall set forth the reasons for its issuance
			 and shall describe in reasonable detail the scope of the stay and shall be
			 filed at the principal office of the appeals board and shall be binding upon
			 all parties to the appeal, their officers, agents, servants, employees, and
			 attorneys and upon those persons in active concert of participation with them
			 who receive actual notice of the order.
(6) Except as otherwise provided by statute,
			 no stay shall issue except upon the giving of security by the moving party, in
			 such sum as the presiding officer deems proper, for payment of such costs and
			 damages as may be incurred or suffered by any party who is found to have
			 wrongfully obtained the stay. No such security shall be required of the United
			 States or of an officer or agency thereof. Pursuant to RCW     4.92.080 no security
			 shall be required of the state of Washington, municipal corporations, or
			 political subdivisions of the state of Washington.
Statutory Authority: RCW    76.09.230(4). 90-23-093, §
										223-08-087, filed 11/21/90, effective 12/22/90.