Or. Admin. Code § 629-672-0310 - Actual Damages Resulting from a Stay; Attorney's Fees
(1) If the board
determines in its comments that the written plan of an operation for which a
stay was granted is likely to result in compliance with ORS
527.610 to
527.770 or the rules of the
board, the board shall award actual damages in favor of each prevailing party
against the person requesting the stay. A landowner, timber owner, or operator
against whom a stay was entered may petition for actual damages for the portion
of the case upon which it prevailed.
(2) The board may award reasonable attorney's
fees and expenses to each of the prevailing parties against any other party who
the board finds presented a position without probable cause to believe the
position was well founded, or made a request primarily for a purpose other than
to secure appropriate action by the board. If a written plan pertaining to an
operation for which a stay was granted is determined to likely result in
compliance with the Forest Practices Act and rules, the board shall award
reasonable attorney's fees in favor of each of the prevailing parties against
the person requesting the stay. If the board rescinds or modifies the comments
on the written plan as submitted by the State Forester pertaining to any
operation, the board shall award reasonable attorney's fees and costs against
the state in favor of each of the prevailing parties. Any prevailing party, as
described above, may file a petition for attorney's fees, expenses and costs
for the portion of the case upon which it prevailed.
(3) An award of attorney's fees shall not
exceed $5,000.
(4) As used in this
rule, a "prevailing party" is one in whose favor an order pertaining to a
written plan is issued, and may include the Department of Forestry where a
written plan is affirmed. Where the board rescinds or modifies the comments on
portions of a written plan and determines that other portions will likely
result in compliance with the FPA or rules, each party may be regarded as a
prevailing party.
(5) "Actual
damages" include but are not limited to costs such as:
(a) Penalties for non-performance of
contracts;
(b) Losses due to market
fluctuations;
(c) Payments for crew
stand-by;
(d) Equipment
down-time;
(e) Move-in and move-out
costs; and
(f) Loss in value of
logs left sitting on the site for long periods.
(6) Attorney's fees, expenses and costs shall
include only the following:
(a) The actual
amount of fees charged by the attorney for services directly connected with
prosecuting or defending against the challenge to the written plan;
or
(b) Where the prevailing party
is not charged a specific fee for the case (e.g., because the attorney is paid
on a retainer basis or is an employee of the party), the fee shall be the
reasonable value of the attorney's services directly connected with prosecuting
or defending against the challenge to the written plan. "Reasonable value"
means the equivalent of the fees charged by practitioners of similar skill and
experience under section (6)(a) of this section, and includes such secretarial
and other overhead costs as are customarily included in those fees.
(7) A prevailing party must file a
petition and supportive affidavit for award of actual damages from a stay or
attorney fees within 30 days of the date of the issuance of the board's
comments in the case for which awards are requested. A copy of the petition,
together with a supporting affidavit, shall be served upon the opposing party
or parties at the time the petition is filed and proof of service shall be
provided to the board. The board shall dismiss petitions which do not comply
with this rule. The petition shall include:
(a) A statement of the facts upon which
petitioner relies in claiming that it is a prevailing party;
(b) A statement of the amount of award
requested, supported by an affidavit that describes in detail the actual
damages incurred and the basis for the amount of damages requested; or amount
of the fees incurred by petitioner, or where the petitioner was not charged
fees, the basis for the amount of the costs requested; and
(c) A statement describing how the amount of
the award requested would be consistent with the policies and the purposes of
the Oregon Forest Practices Act.
(8) An opposing party shall have 14 days from
the date of service of the petition to file written objections. Such objections
shall be served on the petitioner at the time the objections are filed and
proof of service shall be provided to the board.
(9) In designating the amount of fees and
costs to be awarded, the board shall consider, but is not limited to, the
following factors:
(a) Consistency with the
policies and purposes of the Oregon Forest Practices Act including but not
limited to the following considerations:
(A)
The issue in the case was one of first impression; or
(B) A complaint or defense was frivolous or
otherwise without merit; or
(C) A
party was an individual who, due to the circumstances of the case, had to rely
upon his or her personal financial resources.
(b) In the case of attorney's fees, the
appropriate charges for the services rendered, based on:
(A) The time and labor customarily required
in the same or similar cases;
(B)
Hourly charges customarily made by attorneys for rendering similar
services;
(C) The novelty and
difficulty of the issues and the amount of preparation, research or briefing
reasonably required; and
(D) The
skill requisite to perform the services properly.
(c) Awards in similar cases.
(10) The administrative law judge
who presided over the hearing on the written plan shall examine the petition
for award of actual damages or attorney's fees and any associated arguments.
The administrative law judge may require the parties to provide additional
information or conduct hearings as the judge deems necessary. The
administrative law judge shall prepare a proposed order for the
board.
(11) The board shall review
the administrative law judge's proposed order and issue a final order awarding
actual damages or attorney's fees pursuant to this section, based upon the
record. The board may award all or a portion of the actual damages or fees
requested. The board will not act on a petition until the appeal period has run
or, where an appeal has been filed, during the pendency of the
appeal.
Notes
Stat. Auth.: ORS 527
Stats. Implemented: ORS 527.700
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