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 to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 712
 
                         House Bill 2203
 
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
  Presession 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. + }
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