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DEPARTMENT OF FORESTRY
DIVISION 1
PROCEDURAL RULES
629-001-0000
Administrative Rule Notification
Prior to the adoption, amendment, or repeal of any rule, the State Forester shall give notice of the proposed adoption, amendment, or repeal:
(1) In the Secretary of State's Bulletin referred to in ORS 183.360 at least 15 days prior to the effective date.
(2) By mailing a copy of the notice to persons on the Forester's mailing list established pursuant to ORS 183.335(8)(c), at least 30 days prior to the effective date.
(3) By mailing a copy of the notice to the following persons, organizations, and publications at least 30 days prior to the effective date:
(a) State Agencies:
(A) Agriculture, Oregon Department of;
(B) Environmental Quality, Oregon Department of;
(C) Fire Marshal Division, Oregon Department of Commerce;
(D) Fish and Wildlife, Oregon Department of;
(E) Geology and Mineral Industries, Oregon Department of;
(F) Governor's Office, Assistant for Natural Resources;
(G) Health Division, Oregon Department of Human Resources;
(H) Land Conservation and Development, Oregon Department of;
(I) Lands, Division of State;
(J) Parks and Recreation Department;
(K) Revenue, Oregon Department of;
(L) Water Resources, Oregon Department of.
(b) News Media:
(A) Associated Press, Salem;
(B) United Press International, Salem;
(C) Albany -- Democrat-Herald;
(D) Astoria -- Daily Astorian;
(E) Bend -- The Bulletin;
(F) Coos Bay -- The World;
(G) Corvallis -- Gazette-Times;
(H) Eugene -- Register-Guard;
(I) Forest Grove -- The News-Times;
(J) John Day -- Blue Mountain Eagle;
(K) Klamath Falls -- Herald and News;
(L) La Grande -- Observer;
(M) Medford -- Mail Tribune;
(N) Newport -- News-Times;
(O) Pendleton -- East Oregonian;
(P) Portland -- The Oregonian;
(Q) Prineville -- Central Oregonian;
(R) Roseburg -- News-Review;
(S) Salem -- Statesman-Journal;
(T) The Dalles -- Chronicle;
(U) Tillamook -- Headlight-Herald;
(V) Oregon Administrative Law News, Tigard.
(c) Each Regional Forest Practices Committee member.
Stat. Auth.: ORS 183.310(1), ORS 192.610 - ORS 192.710, ORS 526.016(4) & ORS 526.041(1)
Stats. Implemented: ORS 183.550, ORS 192.610 - ORS 192.710 & ORS 526.016
Hist.: FB 45, f. & ef. 3-26-76; FB 10-1986, f. & ef. 9-25-86; FB 3-1992, f. & cert. ef. 3-10-92
629-001-0003
Definitions
The following words, when used in this division shall mean the following unless otherwise required by context:
(1) "Board" means the State Board of Forestry.
(2) "State Forester" means the State Forester or the duly authorized representative of the State Forester.
Stat. Auth.: ORS 526.016(4)
Stats. Implemented: ORS 183.310 -- ORS 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02
629-001-0005
Model Rules of Procedure
The Model Rules of Procedure under the Administrative Procedures Act, promulgated by the Attorney General effective January 1, 2008 are hereby adopted as the rules of procedures of the Board of Forestry and the State Forester.
[ED. NOTE: The full text of the Attorney General’s Model Rules of Procedure is available from the office of the Attorney General or Board of Forestry.]
Stat. Auth.: ORS 526.016(4) & 526.041
Stats. Implemented: ORS 183.341
Hist.: FB 27, f. 11-12-71, ef. 12-1-71; FB 34, f. 10-19-73, ef. 11-11-73; FB 46, f. & ef. 4-19-76; FB 4-1978, f. & ef. 3-13-78; FB 1-1980, f. & ef. 1-9-80; FB 8-1980, f. & ef. 3-20-80; FB 1-1982(Temp), f. & ef. 2-8-82; FB 2-1982, f. & ef. 3-3-82; FB 1-1984, f. & ef. 1-6-84; FB 5-1986, f. & ef. 6-17-86; FB 6-1988, f. & cert. ef. 9-9-88; FB 3-1992, f. & cert. ef. 3-10-92; FB 1-1994, f. & cert. ef. 3-11-94; FB 1-1996, f. & cert. ef. 3-13-96; DOF 3-1998, f. 3-10-98, cert. ef. 4-22-98; DOF 4-2000, f. 10-25-00, cert. ef. 10-31-00; DOF 1-2002, f. & cert. ef. 3-13-02; DOF 6-2004, f. & cert. ef. 6-10-04; DOF 3-2006, f. & cert. ef. 3-15-06; DOF 1-2008, f. 3-6-08, cert. ef. 3-7-08
629-001-0010
Agency Representation by Officer or Employee
(1) Department of Forestry officer or employee is authorized to appear (but not make legal argument) on behalf of the department in a hearing or in a class of contested hearings in which the Attorney General or the Deputy Attorney General has given written consent for such representation. A copy of the list of contested case hearings for which the Attorney General has given consent is maintained by the Department of Forestry and the Department of Justice.
(2) "Legal argument" as used in ORS 183.450(8) and this rule shall include arguments on:
(a) The jurisdiction of the agency to hear the contested case;
(b) The constitutionality of a statute or rule or the application of a constitutional requirement to an agency;
(c) The application of court precedent to the facts of the particular contested case proceeding.
(3) "Legal argument" does not include presentation of evidence, examination and cross-examination of witnesses or presentation of factual arguments or arguments on:
(a) The application of the facts to the statutes or rules directly applicable to the issues in the contested case;
(b) Comparison of prior actions of the agency in handling similar situations;
(c) The literal meaning of the statutes or rules directly applicable to the issues in the contested case;
(d) The admissibility of evidence or the correctness of procedures being followed.
(4) When an agency officer or employee represents the agency, the presiding officer shall advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the presiding officer shall provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after conclusion of the hearing.
Stat. Auth.: ORS 183 & 526
Stats. Implemented: ORS 183 & 526
Hist.: FB 1-1990, f. & cert. ef. 3-15-90; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06
629-001-0015
Rules of Procedure for Contested Cases; Applicability
The rules of procedure in this Division, OAR 629-001-0010 to 629-001-0055, apply to all contested cases before the board and State Forester, unless otherwise provided by law, and are in addition to the procedural requirements of the Attorney General's Model Rules adopted in 629-001-0005. Contested cases covered by these rules include, but are not limited to the following:
(1) Appeal of civil penalties assessed under ORS 527.687;
(2) Appeal of "any finding or order" under ORS 527.610 through 527.770 and 527.992;
(3) Hearings requested by persons adversely affected or aggrieved by an operation requiring a written plan under ORS 527.700(3) through (9);
(4) Appeal of temporary orders to cease further activity under ORS 527.680(3) and 527.680(4);
(5) Appeal of repair orders issued under ORS 527.680(2)(b) and 527.690(1);
(6) Appeal of orders prohibiting new operations under ORS 527.680(5);
(7) Appeal by any person adversely affected by operations to be conducted under an approved or amended stewardship agreement under ORS 527.662;
(8) Review of State Forester's proposal to conduct repair work at state expense under ORS 527.690(2); and
(9) Appeals of decisions on land exchanges under OAR 629-033-0055.
Stat. Auth.: ORS 526.016(4), 527.687(3) & 527.715
Stats. Implemented: ORS 183.310 - 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02; DOF 2-2004, f. & cert. ef. 2-10-04; DOF 1-2011(Temp), f. & cert. ef. 1-7-11 thru 7-5-11; DOF 2-2011, f. 3-14-11, cert. ef. 3-15-11
629-001-0020
Requesting Hearings
(1) All requests for hearing shall be made in writing, within the time period provided by statute or rule.
(2) All requests shall specifically state the issues to be addressed and the relief sought.
(3) Requests for hearing involving civil penalties shall comply with OAR 629-670-0310.
(4) Requests for hearing involving a finding or order of the State Forester issued under ORS 527.610 to 527.770 shall comply with OAR 629-672-0200.
(5) Requests for hearing by persons adversely affected or aggrieved by an operation approved under ORS 527.670(3) shall comply with OAR 629-672-0210.
(6) Requests for hearing by persons adversely affected or aggrieved by a proposed or amended stewardship agreement shall comply with ORS 527.662(12).
(7) Requests for hearing involving land exchanges shall comply with OAR 629-033-0055.
Stat. Auth.: ORS 526.016(4), 527.687(3) & 527.715
Stats. Implemented: ORS 183.310 - 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02; DOF 1-2011(Temp), f. & cert. ef. 1-7-11 thru 7-5-11; DOF 2-2011, f. 3-14-11, cert. ef. 3-15-11
629-001-0025
Conduct of Hearings
(1) Unless otherwise provided by law or order of the board or State Forester in a specific case, contested case hearings will be conducted by an administrative law judge, who shall prepare a proposed order for consideration by the board or State Forester.
(2) Unaccepted proposals of settlement shall be privileged and shall not be admissible as evidence in the proceeding.
(3) In civil penalty proceedings, conferences and hearings shall held at locations which are within the forest practices region of the person being assessed the penalty, unless otherwise agreed to by the State Forester and parties.
(4) The issues for hearing shall be limited to those raised by the parties or by the State Forester in a request for hearing or other pre-hearing filings.
(5) Timing of hearings and orders are stated as follows, unless all parties agree to an extension of the time limits:
(a) For appeals from orders of the State Forester under ORS 527.700(1), hearings 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.
(b) For appeals by persons adversely affected or aggrieved by an operation under ORS 527.700(3), hearings shall be commenced within 21 calendar days after receipt of the request for hearing. The board's comments shall be issued within 45 days after the request for hearing was filed.
(c) For appeals by persons adversely affected or aggrieved by a proposed or amended stewardship agreement, hearings shall be commenced within 45 calendar days after receipt of the request for hearing. A final order shall be issued within 45 calendar days of the concluded hearing.
(d) Hearings on notices of civil penalty under ORS 527.687 shall not be held less than 45 days from the date of service of the notice of penalty. The hearing shall be held not more than 180 days following issuance of the notice.
(6) In order to comply with statutory timelines, the administrative law judge may establish time limits different from those under OAR 137-003-0580 for making and responding to motions for ruling on legal issues. The administrative law judge shall not consider a motion for ruling on a legal issue if the agency requests that the case proceed to a hearing on that issue.
Stat. Auth.: ORS 526.016(4), 527.687(3) & 527.715
Stats. Implemented: ORS 183.310 - 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02; DOF 2-2004, f. & cert. ef. 2-10-04; DOF 6-2005(Temp), f. & cert. ef. 8-2-05 thru 1-27-06; DOF 8-2005, f. 12-13-05, cert. ef. 1-1-06
629-001-0030
Transmittal of Questions to the Agency
(1) Questions transmitted to the agency, as provided for in OAR 137-003-0635 in the Attorney General's Model and Uniform Rules, shall be transmitted to the State Forester.
(2) Response may be made by the State Forester or the State Forester's delegate.
Stat. Auth.: ORS 526.016(4), ORS 527.687(3) & ORS 527.715
Stats. Implemented: ORS 183.310 -- ORS 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02
629-001-0035
Immediate Review by Agency
(1) Matters referred to the agency for immediate review, as provided for in OAR 137-003-0640 in the Attorney General's Model and Uniform Rules, shall be transmitted to the State Forester.
(2) Rulings on requests for immediate review may be made by the State Forester or the State Forester's delegate.
Stat. Auth.: ORS 526.016(4), ORS 527.687(3) & ORS 527.715
Stats. Implemented: ORS 183.310 -- ORS 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02
629-001-0040
Exceptions to Proposed Orders
(1) In all cases in which the administrative law judge is to issue a proposed order, exceptions by a party or the agency must be filed in the manner and time specified by the administrative law judge, making allowance for any statutory timeline applicable to the proceeding. If no time is specified, exceptions must be filed with the administrative law judge within seven days after the proposed order is issued.
(2)(a) The exceptions shall be confined to factual and legal issues which are essential to the ultimate and just determination of the proceeding, and shall be based only on grounds that:
(A) A necessary finding of fact is omitted, erroneous, or unsupported by the preponderance of the evidence on the record;
(B) A necessary legal conclusion is omitted or is contrary to law or the board's policy; or
(C) Prejudicial procedural error occurred.
(b) The exceptions shall be numbered and shall specify the disputed finding, opinions, or conclusions. The nature of the suggested error shall be specified and the alternative or corrective language provided.
(3) A proposed order will become a final order if no exceptions are filed within the time specified, unless the agency notifies the parties and the administrative law judge that the agency will issue the final order. All proposed orders shall include a statement to this effect.
Stat. Auth.: ORS 526.016(4), 527.687(3), 527.715
Stats. Implemented: ORS 183.310 -- 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02; DOF 2-2004, f. & cert. ef. 2-10-04
629-001-0045
Final Orders in Contested Cases
(1) Following hearing, the administrative law judge will prepare the record and proposed order for filing with the board as expeditiously as possible. In the case of hearings related to orders of the State Forester pursuant to ORS 527.700, the record and proposed order shall be filed with the board within five working days of the close of hearing unless an extension has been agreed to by the parties and State Forester. Except as provided in section (2) of this rule, no less than a majority of the board shall then review and consider the proposed order and record, hold a meeting or telephone conference, and take final action as provided for in this rule.
(2) If upon a determination by the board chairperson, the board cannot complete a final order within applicable statutory time limits, the chairperson may delegate authority to issue a final order to the administrative law judge.
(3) After reviewing and considering the proposed order and record, the board may do any of the following:
(a) Schedule written or oral argument from the State Forester and any party that filed exceptions to the proposed order. The board chairperson shall determine whether oral argument, written argument, or both will be permitted after consulting with the board members.
(A) Oral argument shall be allowed only if the board determines it is necessary or appropriate to assist in the proper disposition of the case, and shall be:
(i) Limited to matters raised in written exceptions; and
(ii) Conducted under such time limits as the board chairperson determines are appropriate.
(B) The board chairperson shall notify the agency and parties of the form of argument, if any, to be allowed.
(b) Remand the matter to the administrative law judge for further hearing on such issues as the board specifies, and to prepare a revised proposed order as appropriate, under OAR 137-003-0655(2).
(c) Enter a final order adopting the recommendation of the administrative law judge.
(d) Enter an amended proposed order or final order that modifies or rejects the recommendation of the administrative law judge. If the board decides to modify or reject the proposed order, the board must comply with OAR 137-003-0655 and 137-003-0665.
Stat. Auth.: ORS 526.016(4), 527.687(3), 527.715
Stats. Implemented: ORS 183.310 -- 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02; DOF 2-2004, f. & cert. ef. 2-10-04
629-001-0050
Reconsideration and Rehearing
As a condition of judicial review, a party must file a petition for reconsideration or rehearing with the person or body which rendered the final order in the proceeding. The petition must state with specificity the grounds for objection to the order, and the remedy sought.
Stat. Auth.: ORS 526.016(4), ORS 527.687(3) & ORS 527.715
Stats. Implemented: ORS 183.310 -- ORS 183.550
Hist.: DOF 5-2002, f. & cert. ef. 7-1-02
629-001-0055
Delegation of Authority to State Forester
In addition to any duties and responsibilities conferred upon the State Forester by law or delegation of authority from the Board of Forestry, the State Forester may, with regard to the administration of contested cases:
(1) Execute any written order, on behalf of the board, which has been consented to in writing by the person or persons adversely affected by the order;
(2) Prepare and execute written orders, on behalf of the board, implementing any action taken by the board on any matter;
(3) Prepare and execute orders, on behalf of the board, upon default where:
(a) The adversely affected party or parties have been properly notified of the time and manner in which to request a hearing and have failed to file a proper, timely request for a hearing; or
(b) Having requested a hearing, the adversely affected person or persons have failed to appear at the hearing.
Stat. Auth.: ORS 526.016(4), 527.685(4), 527.687(3), 527.715
Stats. Implemented: ORS 527.685, 83.310 - 183.550
Hist.: DOF 3-2003(Temp), f. 9-5-03, cert. ef. 9-8-03 thru 3-6-04; DOF 2-2004, f. & cert. ef. 2-10-04
629-001-0057
Delegation of Authority to State Forester -- Responding to Claims under ORS 197.352
(1) This rule delegates to the State Forester certain duties and responsibilities to carry out the authorities of the Board of Forestry and the Department in responding to claims under ORS 197.352 (Formerly Chapter 1, Oregon Laws 2005, 2004 Ballot Measure 37). This rule further provides for review and modification by the Board of Forestry of certain actions taken by the State Forester pursuant to this delegation of authority.
(2) The State Forester is vested by the Board of Forestry with authority to respond to claims under ORS 197.352 by:
(a) Reviewing claims;
(b) Denying claims;
(c) Recommending approval of claims by modifying, removing, or not applying the statute(s) or rule(s) that are the basis of the claim; or
(d) Recommending payment of claims. These actions shall be done in compliance with Department of Administrative Services administrative rules relating to ORS 197.352.
(3) The State Forester shall submit to the Board any recommendation made under paragraph (2)(c) or (d) of this rule. The Board may accept or modify the State Forester's recommendation.
(4) The State Forester shall establish procedures to provide notice of any action on a claim under ORS 197.352 as required by Department of Administrative Services administrative rules relating to ORS 197.352.
(5) Actions by the Board of Forestry or State Forester on claims under this rule are actions under ORS 197.352, and are not orders under ORS 527.700.
Stat. Auth.: ORS 197.352, ORS 526 & 527
Stats. Implemented: ORS 197.352, 526.016, 526.031 & 526.041
Hist.: DOF 2-2006, f. 1-11-06 cert. ef. 1-13-06
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contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
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