Or. Admin. Code § 629-672-0300

Current through Register Vol. 63, No. 12, December 1, 2024

Section 629-672-0300 - Stay of Operation

(1) The State Forester is authorized to issue temporary orders pertaining to a stay of operations under ORS 527.700(8).

(2) Any person entitled to a hearing under OAR 629-672-0210 may apply to the State Forester for a stay of the operation pending a hearing on the matter. The request for a stay shall include:

(a) The name, address and telephone number of the person filing the request, identifying that person as a petitioner; and the names, addresses and telephone numbers of each of the other parties to the proceedings, identifying those parties' roles in the proceedings. When any party is represented by an attorney in the proceeding, then the name, address and telephone number of the attorney shall be provided and the address and telephone number of the party may be omitted;

(b) Identification of the operation for which the stay is requested;

(c) A statement of facts and reasons sufficient to show that the stay request should be granted because:

(A) Commencement or continuation of the operation will constitute a violation of the rules of the board;

(B) The person requesting the stay will suffer irreparable injury if the stay is not granted;

(C) The person requesting the stay has met the requirements of ORS 527.700(3), (4) and (5); and

(D) Granting the stay will not result in substantial public harm.

(d) A statement identifying any potential injury to the other parties in the matter if the stay is granted. If the purposes of the stay can be achieved with limitations or conditions that minimize or eliminate possible injury to other persons, petitioner shall propose such limitations or conditions. Petitioner shall propose an amount of bond or other undertaking, not less than $15,000 to be imposed on the petitioner should the stay be granted, explaining why that amount is reasonable in light of the identified potential injuries;

(e) A description of any other procedures, if any, the petitioner believes should be followed by the State Forester in determining the appropriateness of the stay request; and

(f) An appendix of affidavits containing all evidence upon which the petitioner relies in support of the statements required in subsections (2)(c) and (d) of this rule.

(3) The request for stay and all required accompanying documents must be filed with the State Forester at the same time the request for a hearing is filed.

(4) The State Forester shall notify the parties listed in the petition for stay, that they may participate in the stay proceeding if they file a response in accordance with section (5) of this rule. The State Forester shall include in this notice a time certain for filing a response to the request for stay.

(5) The landowner, timber owner or operator may file a response to the request for stay. The response shall contain:

(a) The name, address, and telephone number of the person filing the response, except that if the person is represented by an attorney, then the name, address, and telephone number of the attorney shall be included and the person's address and telephone number may be deleted;

(b) A statement accepting or denying each of the statement of facts and reasons provided in the petitioner's stay request;

(c) A statement accepting, rejecting, or proposing alternatives to the petitioner's statement on the bond or undertaking amount or other reasonable conditions that should be imposed on petitioner should the stay request be granted.

(6) The response may contain affidavits containing additional evidence upon which the person relies in support of the statement required under subsections (5)(b) and (c) of this rule.

(7) The response must be delivered or mailed to the State Forester and to all parties identified in the stay request.

(8) After the deadline for filing responses, the State Forester may:

(a) Issue a temporary order on the stay upon the basis of the material before the State Forester; or

(b) Conduct such further proceedings as the State Forester deems desirable; or

(c) Determine that the circumstances reasonably permit delay of consideration of a stay until the hearing.

(9) The State Forester's temporary order may:

(a) Grant the stay upon a showing that commencement or continuation of the operation will constitute a violation of the rules of the board, the person requesting the stay will suffer irreparable injury if the stay is not granted, and the requirements of ORS 527.700(3), (4) and (5) are met. The State Forester shall limit the effect of the stay to the specific geographic area or elements of the operation for which the person requesting the stay has demonstrated a violation of the rules and irreparable injury;

(b) Deny the stay request upon a finding that the petitioner failed to show that the requirements of ORS 527.700(8)(a) are met or granting the stay will result in substantial public harm.

(10) If the State Forester grants the stay, the person requesting the stay shall be required to give an undertaking which may be in the amount of the damages potentially resulting from the stay, but in any event shall not be less than $15,000. The undertaking shall be in the form that the State Forester determines best protects the interests of the person against whom the stay is imposed. In the event the written plan for which the stay was granted is affirmed in whole or in part, the State Forester shall retain the undertaking until all damages, including attorney fees, costs and expenses have been paid.

(11) The State Forester's temporary order shall be subject to review as part of the hearing reviewing the written plan. The temporary order of the State Forester may be affirmed, rescinded or modified by final order of the Board.

Or. Admin. Code § 629-672-0300

FB 2-1989, f. & cert. ef. 9-20-89; FB 2-1995, f. 6-19-95, cert. ef. 7-1-95, Renumbered from 629-055-0140

Stat. Auth.: ORS 527

Stats. Implemented: ORS 527.700