Oregon House Bill 2203

(Note: In this bill DUE PROCESS is thrown out the window. This bill is so insane that even a JUDGE cannot even override the decision of a state forester!)

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72nd OREGON LEGISLATIVE ASSEMBLY--2003 Regular Session

NOTE: Matter within { + braces and plus signs + } in an amended section is new. Matter within { - braces and minus signs - } is existing law that is to be omitted. New sections are within { + braces and plus signs + } .

LC 712

House Bill 2203

http://www.leg.state.or.us/03reg/measures/hb2200.dir/hb2203.intro.html

Ordered printed by the Speaker pursuant to House Rule 12.00A (5).

Precession filed ( at the request of Governor Theodore R. Kulongoski for State Forestry Department )

SUMMARY

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor's brief statement of the essential features of the measure as introduced.

Defines actual cost for purposes of certain fire abatement activities. Restricts challenges by owners or operators in actions for cost recovery to questioning accounting practices and procedures. Prohibits court from reviewing discretionary decision of forester or forest protective association or agency to incur actual cost in controlling or extinguishing fire.

Declares emergency, effective on passage.

A BILL FOR AN ACT

Relating to fire cost recovery; amending ORS 477.068; and declaring an emergency.

Be It Enacted by the People of the State of Oregon: - }

SECTION 1. ORS 477.068 is amended to read: 477.068.

(1) In case an owner or operator fails to perform the duty required by ORS 477.066, or is willful, malicious or negligent in the origin or subsequent spread of the fire, the actual cost incurred by the forester or a forest protective association or agency in controlling or extinguishing the fire shall be paid by the owner or operator within 90 days after the date on which the first written demand for payment of the actual cost is mailed by the State Forester to the owner or operator. If the actual cost is not paid within { - such - } { + the + } 90-day period, { - such - } { + the + } amount shall bear interest at 10 percent per year from the date on which the first written demand for the payment of the actual { - costs - } { + cost + } was mailed by the State Forester and the actual cost together with such interest may be recovered from such owner or operator by an action prosecuted in the name of the State of Oregon, or such forest protective association or agency, or both.

(2) An itemized statement of the actual cost incurred by the forester or association or agency, or both, certified to by the forester, shall be accepted as prima facie evidence of the actual cost in any proceeding authorized by this section.

(3) The actual cost in cases covered by ORS 477.066 shall constitute a general lien upon the real and personal property of such owner or operator. A written notice of the lien, containing a description of the property and a statement of the actual cost, shall be certified under oath by the forester or any warden and filed in the office of the county clerk of the county in which the lands and personal property are situated within 12 months after the calendar year within which the fire originated, and may be foreclosed in the manner provided by law for foreclosure of liens for labor and material. In any proceeding to foreclose a lien created under this subsection, recovery for the plaintiff shall include, in addition to the amount of the actual cost, interest on such amount at the rate of 10 percent per year from the date of the filing of the written notice of the lien.

(4) Upon request of the forester, the district attorney for the district in which the lands and personal property are situated or the Attorney General shall prosecute such action or foreclose the lien in the name of the State of Oregon or such forest protective association or agency, or both. Liens provided for in this section shall cease to exist unless suit for foreclosure is instituted within 12 months from the date of filing under subsection (3) of this section.

(5) In any action under subsection (1) of this section to recover actual cost and in any proceeding to foreclose any lien created by subsection (3) of this section, the court shall award, in addition to costs and disbursements, reasonable attorney fees at trial and on appeal to the prevailing party.

{ + (6) In any action under subsection (1) of this section to recover actual cost, an owner or operator may challenge only the accounting practices and procedures used in the determination of actual cost. In such an action, a court may not review the factual determination of, nor substitute its judgment for, the discretionary decision of the forester or a forest protective association, public agency or state agency to incur actual cost in controlling or extinguishing the fire.

(7) For purposes of this section, 'actual cost' means those costs incurred by the forester, or any forest protective association, public agency or state agency under contract or agreement with the forester, that the forester, association or agency determines to be necessary to control or extinguish a fire. + }

SECTION 2. { + This 2003 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2003 Act takes effect on its passage. + }

http://www.leg.state.or.us/03reg/measures/hb2200.dir/hb2203.intro.html