Or. Admin. Code § 736-020-0100

Current through Register Vol. 63, No. 10, October 1, 2024

Section 736-020-0100 - Powers of Enforcement

Any improvement, addition, modification or alteration made on the ocean shore, or any pipeline, cable line or conduit constructed across or under the ocean shore, or any natural product removed from the ocean shore for commercial use without a permit issued under ORS 390.650, or performed in a manner contrary to, or not in compliance with, the terms and conditions of a permit issued under ORS 390.650, or performed in a manner contrary to, or not in compliance with, ocean shore standards or rules or an order of the Director, shall be subject to enforcement action under this rule and/or the imposition of a civil penalty under OAR 736-080-0005 to 736-080-0070. The Director may use one, or any combination of the following actions, as appropriate, to protect and preserve the ocean shore:

(1) Investigation -- on the Director's own initiative, or in response to reports or complaints from other persons or agencies, the Director may investigate improvements, additions, modifications or alterations on the ocean shore, pipelines, cables and conduits constructed across or under the ocean shore or the removal of natural products from the ocean shore for compliance with statutes, rules, standards permits and orders pertaining to these developments and activities. In conducting such investigations, the Director, or his duly authorized staff or agents, may enter upon lands within the ocean shore, including private property within the ocean shore, at such times as are reasonable to detect, evaluate and document the ocean shore violation. The Director, or his duly authorized staff or agents, shall not enter upon private property landward of the ocean shore without the property owner's permission. When landowner permission is not forthcoming and access through the property landward of the ocean shore is necessary to investigate, assess and prescribe remedies for suspected or known ocean shore violations, the Director, his staff or agents, may enter such property when accompanied by appropriate law officers bearing a court issued search warrant or other appropriate authorization;

(2) Public Hearings -- the Director may schedule and conduct hearings to gather evidence and other information related to an ocean shore violation;

(3) Policies and Procedures -- the Director may develop and publish policies, procedures, findings and recommendations for use in identifying and correcting violations of the ocean shore statutes, rules, standards, permits and orders;

(4) Proposed Orders -- the Director may issue proposed orders directing action, setting time lines, or establishing conditions on a responsible party related to an ocean shore violation by:

(a) Giving notice of the proposed order by personal service or registered or certified mail to the responsible party; and

(b) Holding a contested case hearing if any person aggrieved by the proposed order makes written request for a hearing within 20 days of personal service or mailing of the proposed order.

(5) Civil Proceedings -- the Director may bring civil abatement proceedings against a responsible party for violations of the ocean shore statutes, rules, standards or a permit or an order of the Director. In bringing such proceedings against a responsible party, the Director:

(a) Shall file with the court, a statement:

(A) Describing the notice given the responsible party and when the notice was issued;

(B) Indicating the date of the contested case hearing and whether or not the responsible party appeared, and if so, a summary or transcript of the hearing;

(C) Specifying the public nuisance arising from the violation;

(D) Indicating the statute(s), rule(s) or standard(s) violated and including a copy of the Director's permit or order, if applicable, and identifying the specific terms and conditions of the permit or order being violated; and

(E) Describing the damages and impacts, if any, to ocean shore resource values including public rights of navigation, fisheries and recreation.

(b) May request the court to order the responsible party to pay to the Department an amount of money necessary to repair any damages or compensate the public for loss or impairment of the public's interest in navigation, fishery or recreation resulting from the violation.

(6) Cease and Desist Order -- where a responsible party is violating ocean shore statutes, rules, standards, or a permit or order of the Director, the Director may issue an order to cease and desist if the Director determines that the responsible party's actions risk imminent and substantial injury, loss or damage to ocean shore values. An order to cease and desist:

(a) May be issued without prior notice or hearing;

(b) Shall be served on the responsible party by personal delivery or by registered or certified mail, and if by mail, the service date shall be the date of mailing;

(c) Shall advise the responsible party of the right to a contested case hearing if a written request is received within 10 days of service of the order;

(d) Shall not be stayed during the hearing, if one is requested;

(e) May direct the responsible party to take immediate specific actions to minimize or avoid further injury, loss or damage to the ocean shore;

(f) Shall be entered as the final order if the responsible party does not request a hearing or fails to appear at a scheduled hearing;

(g) Shall not result in any liability to the Commission, Director or the Department from damages to the responsible party arising from the order; and

(h) Shall be enforceable by state and local police without need for further authority or warrant.

(7) Permit Revocation -- the Director may revoke, suspend or refuse to renew any permit issued under ORS 390.650 if the Director determines the permittee is in violation of the conditions of the permit. The Director shall state the case for revoking or suspending a permit in a proposed order. The proposed order:

(a) Shall be served on the permittee in person or by registered or certified mail;

(b) Shall advise the permittee of the opportunity to request a contested case hearing within 20 days of service of the proposed order where the service date shall be the date of service in person or the date of mailing;

(c) Shall become the final order if the permittee fails to request a hearing or fails to appear at a scheduled hearing.

(8) Civil Abatement of Public Nuisance -- improvements, additions, modifications or alterations made on the ocean shore, or pipelines, cables and conduits constructed across or under the ocean shore or natural products removed from the ocean shore without a permit issued under 390.650, or that do not comply with the conditions in a permit issued under ORS 390.650, are a public nuisance. Under this section:

(a) The Director, or any person, may initiate civil abatement proceedings against the party responsible for a public nuisance except that:

(A) No person may begin such an action if the Director has already begun and is pursuing criminal, civil, or administrative proceedings in the same matter; and

(B) Any person shall give the Director not less than 60 days notice prior to initiating such action.

(b) The Director may seek a temporary restraining order or a preliminary injunction when a public nuisance creates an emergency or threatens the public health, welfare or safety. In seeking a temporary restraining order or preliminary injunction, the Director shall file with the court, a statement:

(A) Describing the notice, if any, given the responsible party and when the notice was issued;

(B) Indicating the date of the contested case hearing, if any, and whether or not the responsible party appeared, and if so, a summary or transcript of the hearing;

(C) Specifying the public nuisance arising from the violation;

(E) Describing the damages and impacts, if any, to ocean shore resource values including public rights of navigation, fisheries and recreation;

(F) Explaining how the public nuisance arising from the violation constitutes an emergency and threatens the public health, welfare or safety; and

(G) Specifying the particular measures the responsible party shall take immediately to protect the public health, welfare and safety.

(c) No liability shall accrue to the Commission, the Department, or any of its employees or agents for any damages, loss, expense, or inconvenience sustained by a responsible party resulting from a restraining order, injunction or abatement order issued under this section;

(d) Any plaintiff in a public nuisance abatement proceeding may seek from the court a monetary award in an amount necessary to repair any damages and compensate the public for loss or impairment of the public's interest in and right of navigation, fishery or recreation resulting from the public nuisance;

(e) The Director may seek from the court in a civil abatement proceeding where the responsible party is determined to have, through negligence, violated ORS 390.640 requiring permits for improvements on the ocean shore, double the amount of money necessary to compensate the public for any damage, loss, destruction or infringement on the public right of navigation, fishery or recreation;

(f) The Director may seek from the court in a civil abatement proceeding where the responsible party is determined to have intentionally violated ORS 390.640 requiring permits for improvements on the ocean shore, triple the amount of money necessary to compensate the public for any damage, loss, destruction or infringement on the public right of navigation, fishery or recreation;

(g) The award of damages in civil abatement proceedings on an ocean shore violation, shall not preclude the Department from pursuing criminal penalties for the same violation.

Or. Admin. Code § 736-020-0100

PRD 7-2000, f. & cert. ef. 5-10-00

Stat. Auth.: ORS 390.124

Stats. Implemented: ORS 390.605 - ORS 390.770 & ORS 390.990 - ORS 390.995