THOMAS CREEK LUMBER AND LOG v. Board of Forestry

• Decision Date: 29 May 2003
• Citation: 69 P.3d 1238,188 Or. App. 10
• Parties: THOMAS CREEK LUMBER AND LOG CO., Petitioner, v. BOARD OF FORESTRY, Respondent. Nel-Log, Inc., Petitioner, v. Board of Forestry, Respondent.
• Court: Oregon Court of Appeals

69 P.3d 1238

188 Or. App. 10

THOMAS CREEK LUMBER AND LOG CO., Petitioner, v. BOARD OF FORESTRY, Respondent.

Nel-Log, Inc., Petitioner, v. Board of Forestry, Respondent.

G60275, G60283; A114870 (Control), A114871

Court of Appeals of Oregon.

Argued and Submitted November 6, 2002.

Decided May 29, 2003.

Gregory J. Miner, Portland, argued the cause for petitioners. With him on the briefs were William K. Kabeiseman and Preston Gates & Ellis LLP.

Jas. Jeffrey Adams, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

LANDAU, P.J.

Thomas Creek Lumber and Log Co. (Thomas Creek) and Nel-Log, Inc. (Nel-Log), petition for judicial review of two orders on reconsideration of the Board of Forestry (board). In the first order, the board (1) determined that Thomas Creek had violated ORS 527.670(6), requiring an operator, timber owner, or landowner to notify the State Forester¹ before commencing any "operation," that is, any commercial activity relating to the harvest of forest tree species; (2) concluded that Thomas Creek had violated OAR 629-605-0150(1), providing for a 15-day waiting period after notification and before commencing a harvest operation, unless the waiting period is waived; and (3) assessed civil penalties for those violations. In its second order, the board determined that Nel-Log also had violated the notice and 15-day waiting period requirements and assessed civil penalties. We affirm.

I. FACTUAL BACKGROUND

We take the facts from the board's orders on reconsideration and from the record. Brent C. Walker owns Thomas Creek. He also owns timberland located in Sections 3, 4, and 34 of what is commonly known as the Powers Creek area of central Marion County. Section 3 is located immediately to the east of Section 4, while Section 34 is located immediately to the north of Section 3. A county road runs generally from southwest to northeast from Section 4 into Section 34.

In November 1998, Walker submitted to the State Forestry Department (department) a notification of timber harvest operation on approximately 20 acres of land along Powers Creek in Section 4. The notification named Thomas Creek as the landowner and Nel-Log as the operator and stated that the operation would begin on November 18 and end on December 31, 1998. The notification also requested waiver of the requirement under OAR 629-605-0150 that the operator, landowner, or timber owner provide at least 15 days' notice before commencing operations. By written notation on the notification, Forest Practice Forester (FPF) Jackson waived the waiting period.

In December 1998, again on behalf of Thomas Creek and Nel-Log, Walker submitted another notification and request for waiver pertaining to a timber harvest operation in Section 4, stating that the operation would begin on December 23 and end on December 31, 1998. Jackson again waived the waiting period in writing.

After Thomas Creek and Nel-Log had completed their operations in Section 4, they moved their equipment approximately one-quarter mile northeast along the county road and 300 to 400 feet north and east along a logging road into Section 34. In mid-January, they commenced a timber harvest operation at the new location, with Thomas Creek felling the trees and Nel-Log hauling. Neither Thomas Creek nor Nel-Log filed a notification or requested a waiver of the waiting period before beginning that operation.

On January 26, 1999, a department employee reported the existence of the timber operation in Section 34 to FPF Gisler, who had temporarily replaced Jackson. On January 27, after determining that no notification had been filed for an operation in Section 34, Gisler went to the site, where she saw workers yarding and loading logs.

Gisler also saw two small streams near an old barn in Section 34. She directed the workers not to cut any more timber within 100 feet of the streams. On her return to her office, Gisler determined that the streams in question were classified on department water maps as "Type N" streams. Type N streams do not contain fish. OAR 629-635-0200(4)(c). Lands located near such streams do not require riparian management plans or buffers from logging operations. OAR 629-605-0170(1)(a). Gisler reviewed Oregon Department of Water Resources records and learned that there was a registered domestic water right on one of the streams. She then summarily reclassified the stream as a Type D stream, a type of stream with domestic water use, OAR 629-635-0200(4)(b), that requires a riparian management plan for forest operations within 100 feet of its edge, OAR 629-635-0170(1)(a). She did not give notice of the reclassification to adjacent landowners, but she did notify Thomas Creek.

On January 29, Gisler told Walker that a notification was required for the operation in Section 34. That same day, Walker faxed a notification and request for waiver for that operation. The notification named Thomas Creek as the landowner and timber owner and named Nel-Log as the operator. It stated that the operation encompassed five acres, that its estimated starting date was January 18, that its estimated ending date was February 28, and that it pertained to Section 34. The notification was signed by Walker and was dated January 15, 1999. Gisler, however, did not waive the 15-day waiting period.

On February 9, 1999, Gisler told workers at the site to stop all operations at the site. By that time, Thomas Creek and Nel-Log had harvested approximately 27 loads of logs from Section 34. That same day, she also sent a facsimile to Walker and mailed a letter to Nel-Log to the same effect.

On February 24, Gisler issued three citations to Thomas Creek, alleging that it had violated ORS 527.670(6) by failing to notify the State Forester before conducting its operation in Section 34, that it had violated OAR 629-605-0170(1)(a) by failing to obtain prior approval of a written plan before conducting harvest activity within 100 feet of a Type D stream, and that it had violated OAR 629-605-0150(1) by failing to wait at least 15 days following notification before commencing its operation in section 34. Gisler also issued three citations to Nel-Log, asserting the same violations. ORS 527.680(1). In August 1999, the department issued notices of civil penalty and "orders" arising out of the citations. ORS 527.680(2)-(5); ORS 527.683; ORS 527.687; ORS 183.090.

Thomas Creek and Nel-Log requested hearings on the orders. ORS 527.687; ORS 527.700(1). The three citations issued to Thomas Creek were consolidated into a single contested case, as were the three citations issued to Nel-Log. The two contested cases were then consolidated for hearing, which, pursuant to ORS 527.687, was held before a hearing officer assigned from the Hearing Officer Panel established under Oregon Laws 1999, chapter 849, section 3.

In June 2000, the department withdrew the two citations and "orders" that were based on Thomas Creek's and Nel-Log's failure to obtain approval of a written plan before operating within 100 feet of a Type D stream. The department determined that Gisler had not followed required procedures in reclassifying the stream from a Type N to a Type D.

On July 18, 2000, the hearing officer issued draft proposed orders to the board as to Thomas Creek and Nel-Log, respectively. The hearing officer concluded that Thomas Creek had violated ORS 527.670(6) by failing to provide notification of its operations in Section 34. He also concluded, however, that Thomas Creek had not violated OAR 629-605-150(1), relating to the 15-day waiting period and that Nel-Log had not violated either the notification requirement or the 15-day waiting period requirement, given that Thomas Creek had always provided the notification. The hearing officer awarded attorney fees in favor of both Thomas Creek and Nel-Log based on the finding that the department had lacked probable cause to prosecute the citations pertaining to failure to obtain approval of a written plan.

Petitioners did not file exceptions to the hearing officer's draft proposed order. On August 4, however, the department did. It submitted to the board "exceptions" to the hearing officer's draft proposed orders along with its recommended modifications to the hearing officer's proposed order, spelled out in "legislative format" showing proposed deletions and insertions in the text of the hearing officer's proposed final order. Specifically, the department contended that the hearing officer's proposed final order omitted necessary findings of fact, included erroneous or unnecessary findings of fact, erroneously concluded that Nel-Log had not violated ORS 527.670(6) in failing to provide notification of its operations, erroneously concluded that both Thomas Creek and Nel-Log had not violated OAR 629-605-0150(1) in failing to observe the required 15-day waiting period, and erroneously awarded Thomas Creek and Nel-Log attorney fees and expenses. On May 10, 2001, the board issued final orders adopting the department's modifications. In the final order pertaining to Thomas Creek, the board concluded that Thomas Creek violated ORS 527.670(6) and OAR 629-605-0150(1) by failing to provide notification and observe the 15-day waiting period regarding its operations in Section 34. It imposed a civil penalty of $200 for each of those violations. It also concluded that Thomas Creek was not entitled to attorney fees. According to the board, the department and the State Forester are not "parties" against whom ORS 527.700(7) authorizes an award of attorney fees. In any event, the board concluded, the department did not act inappropriately in issuing a citation for failure to file a written plan before conducting operations within 100 feet of a Type D stream, even though it turned out that the stream was of a different type.

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