Current through Register Vol. 63, No. 9, September 1, 2024
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;
(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;
(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.
Stat. Auth.: ORS
390.124
Stats. Implemented: ORS
390.605 - ORS
390.770 & ORS
390.990 - ORS
390.995
