Bill Text: OR HB3201 | 2013 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Relating to civil actions regarding forest fires; declaring an emergency.

Sponsorship: Bipartisan Bill

Status: (Failed) 2013-07-08 - In committee upon adjournment. [HB3201 Detail]

Download: Oregon-2013-HB3201-Introduced.html

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     77th OREGON LEGISLATIVE ASSEMBLY--2013 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 3277

                         House Bill 3201

Sponsored by Representatives MCKEOWN, WITT, MCLANE;
  Representative ESQUIVEL

                             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.

  Allows person holding interest in property to recover economic
and property damages resulting from fire occurring due to certain
statutory or rule violations or resulting from fire escaping from
land used or capable of being used for growing forest tree
species. Allows recovery of twice amount of economic and property
damages if fire resulted from recklessness, gross negligence,
willfulness or malice. Prohibits use of res ipsa loquitur to
establish negligence resulting in fire. Limits liability for
economic and property damages if fire originated due to act of
God. Makes person liable for payment of fire fighting costs.
Prohibits other liability resulting from fire.
  Declares emergency, effective on passage.

                        A BILL FOR AN ACT
Relating to civil actions regarding forest fires; creating new
  provisions; amending ORS 105.810, 197.277, 477.095 and 527.715;
  repealing ORS 477.090; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
  SECTION 1.  { + Section 2 of this 2013 Act is added to and made
a part of ORS chapter 477. + }
  SECTION 2.  { + (1) As used in this section:
  (a) 'Act of God' means an unanticipated grave natural disaster
or other natural phenomenon of an exceptional, inevitable and
irresistible character, the effects of which could not have been
prevented or avoided by the exercise of due care and foresight.
  (b) 'Economic and property damage' means:
  (A) Objectively verifiable monetary losses; and
  (B) The lesser of any reduction in the fair market value of
real or personal property or the cost of restoring real or
personal property to preloss condition.
  (c) 'Escaped fire' means a fire that originated on land used or
capable of being used for growing forest tree species regardless
of the existing use of the land.
  (d) 'Fair market value' means the amount, as determined by a
state certified appraiser, that a willing buyer would pay to a
willing seller for property in an arms-length transaction if both
parties were fully informed about all advantages and
disadvantages of the property and neither party is acting under a
compulsion to buy or sell.

  (e) 'Forest tree species' means trees of a type commonly used
for logs, poles, piles or other forest products.
  (f) 'State certified appraiser' means an individual who has
been certified as a state certified appraiser under ORS 674.310
and is qualified to appraise the property that is the subject of
a fair market value determination.
  (2) Except as provided in ORS 477.095 and subsection (4) of
this section, if property belonging to the United States or a
state agency, local government or private landowner is damaged
due to a fire that results from a violation of this chapter or of
rules adopted under ORS 526.016 or 526.041 or due to an escaped
fire, a person who holds an interest in the property may recover
in a civil action:
  (a) The amount of economic and property damages, if the fire
did not occur as the result of recklessness, gross negligence,
willfulness or malice; or
  (b) Twice the amount of economic and property damages, if the
fire occurred as the result of recklessness, gross negligence,
willfulness or malice.
  (3) The doctrine of res ipsa loquitur does not apply for
purposes of establishing negligence under subsection (2) of this
section.
  (4) If a fire originates through an act of God, a person is not
liable under subsection (2) of this section for economic and
property damages resulting from the fire except to the extent
that the damages result from the person causing or contributing
to the spreading of the fire.
  (5) Except as provided in ORS 477.095 and subject to any other
provision of this chapter limiting the recovery of fire fighting
costs, a person who causes a fire through a violation of this
chapter or of rules adopted under ORS 526.016 or 526.041 or
causes an escaped fire is liable to any person or entity for the
full amount of all unreimbursed expenses incurred by the person
or entity in fighting the fire.
  (6) The remedies provided under this section are in addition to
any available criminal or civil penalties that may be assessed
for the violation of a statute or rule, but subject to Article I,
section 10, of the Oregon Constitution, are the exclusive
remedies for civil liability based upon a fire that results from
a violation of this chapter or of rules adopted under ORS 526.016
or 526.041 or based upon an escaped fire. This subsection does
not prohibit the bringing of any cross claim, counterclaim or
joinder of parties. + }
  SECTION 3. ORS 105.810 is amended to read:
  105.810. (1) Except as provided in   { - ORS 477.090 - }  { +
section 2 of this 2013 Act + } and subsections (4) to (7) of this
section, whenever any person, without lawful authority, willfully
injures or severs from the land of another any produce thereof or
cuts down, girdles or otherwise injures or carries off any tree,
timber or shrub on the land of another person, or of the state,
county, United States or any public corporation, or on the street
or highway in front of any person's house, or in any village,
town or city lot, or cultivated grounds, or on the common or
public grounds of any village, town or city, or on the street or
highway in front thereof, in an action by such person, village,
town, city, the United States, state, county, or public
corporation, against the person committing such trespasses if
judgment is given for the plaintiff, it shall be given for treble
the amount of damages claimed, or assessed for the trespass. In
any such action, upon plaintiff's proof of ownership of the
premises and the commission by the defendant of any of the acts
mentioned in this section, it is prima facie evidence that the
acts were committed by the defendant willfully, intentionally and
without plaintiff's consent.
  (2) A court may, in its discretion, award to a prevailing party
under subsection (1) of this section reimbursement of reasonable
costs of litigation including but not limited to investigation
costs and attorney fees.
  (3) A court may, in its discretion, award to a prevailing
plaintiff under subsection (1) of this section reasonable costs
of reforestation activities related to the injury sustained by
the plaintiff.
  (4) A contract logger is liable only for actual damages in an
action under this section if:
  (a) The contract logger conducts an operation under a signed,
written contract with a person the contract logger reasonably
believes to be the legal owner of the produce, trees, timber or
shrubs in the operation area;
  (b) The contract identifies the operation area by a metes and
bounds description or other sufficient legal description;
  (c) Before the contract logger begins harvesting in the
operation area, the person who engages the contract logger under
the contract:
  (A) Locates, marks and protects from damage all survey
monuments in the operation area;
  (B) Flags, stakes or otherwise clearly marks the boundaries of
the operation area; and
  (C) Provides the contract logger with a copy of the deed,
contract or other instrument that the person who engages the
contract logger under the contract relies upon as proof of
ownership of the produce, trees, timber or shrubs in the
operation area;
  (d) The contract logger verifies the deed, contract or
instrument described in paragraph (c)(C) of this subsection
against the metes and bounds description or other sufficient
legal description in the contract;
  (e) The contract logger retains a copy of the deed, contract or
instrument described in paragraph (c)(C) of this subsection for
at least three years; and
  (f) The contract logger does not receive written notice that
any person has a claim of title to the land or timber in the
operation area that is adverse to the person who engages the
contract logger under the contract.
  (5) Subsection (4) of this section does not affect an action
for double or treble damages against a contract logger for
damages outside the operation area as described in subsection (4)
of this section.
  (6) If an action is brought under this section against a
contract logger, and the contract logger was engaged to harvest
the timber by a person who purported to own the timber or to have
authority to harvest the timber, the person who engaged the
contract logger must be joined in the action as a defendant
unless jurisdiction over the person cannot be had. If a judgment
is entered against the contract logger and against the person who
engaged the contract logger, the contract logger shall not be
required to pay any part of the judgment unless the plaintiff
establishes that the judgment cannot be enforced against the
person who engaged the contract logger. The plaintiff may enforce
the judgment against the contract logger only if:
  (a) The plaintiff makes a good faith effort for at least six
months after the judgment becomes final and subject to execution
to enforce the judgment against the person who engaged the
contract logger; and
  (b) The court determines, upon motion of the plaintiff, that
all or part of the judgment cannot be collected from the person
who engaged the contract logger.
  (7) Subsections (2) and (3) of this section apply in an action
against a contract logger under subsection (4) of this section.
  (8) For purposes of this section:
  (a) 'Contract logger' means a person engaged in a commercial
timber harvesting operation.
  (b) 'Operation' has the meaning given in ORS 527.620 (12).
  SECTION 4. ORS 197.277 is amended to read:
  197.277. (1) The goals and rules established in ORS chapters
195, 196 and 197 do not apply to programs, rules, procedures,
decisions, determinations or activities carried out under the
Oregon Forest Practices Act administered under ORS 527.610 to
527.770, 527.990 (1) and 527.992.
  (2) No goal or rule shall be adopted, construed or administered
in a manner to require or allow local governments to take any
action prohibited by ORS 527.722.
  (3) The Land Conservation and Development Commission shall
amend goals and rules as necessary to implement ORS 197.180,
197.277, 197.825, 215.050,   { - 477.090, - }  477.440, 477.455,
477.460, 526.009, 526.016, 526.156, 527.620, 527.630, 527.660,
527.670, 527.683 to 527.687, 527.715, 527.990 and 527.992 { +
and section 2 of this 2013 Act + }.
  SECTION 5. ORS 477.095 is amended to read:
  477.095. (1) An owner of forestland shall not be subject to the
provisions of ORS 477.068 and   { - 477.090 - }  { +  section 2
of this 2013 Act + }, where the origin or subsequent spread of a
fire was the direct result of training activity by the Oregon
National Guard or of any component of the Armed Forces of the
United States.
  (2) Notwithstanding any other law, the Oregon National Guard
shall be subject to the duties, requirements or penalties of ORS
477.068  { - , - }   { + and + } 477.085 and   { - 477.090 - }
 { +  section 2 of this 2013 Act + }, where the origin or
subsequent spread of a fire was the direct result of training
activity by the Oregon National Guard.
  SECTION 6. ORS 527.715 is amended to read:
  527.715. The State Board of Forestry shall establish, by rule,
the standards and procedures to implement the provisions of ORS
197.180, 197.270, 197.825, 215.050,   { - 477.090, - }  477.440,
477.455, 477.460, 526.009, 526.016, 526.156, 527.620, 527.630,
527.660, 527.670, 527.683 to 527.724, 527.736 to 527.760 and
527.992 { +  and section 2 of this 2013 Act + }.
  SECTION 7.  { + ORS 477.090 is repealed. + }
  SECTION 8.  { + Section 2 of this 2013 Act, the amendments to
ORS 105.810, 197.277, 477.095 and 527.715 by sections 3 to 6 of
this 2013 Act and the repeal of ORS 477.090 by section 7 of this
2013 Act apply for fires that originate, or are initially
discovered or detected, on or after the effective date of this
2013 Act.  Notwithstanding the repeal of ORS 477.090 by section 7
of this 2013 Act, any action to recover costs and damages for
fires described in ORS 477.090, as set forth in the 2011 Edition
of Oregon Revised Statutes, that originated prior to the
effective date of this 2013 Act may be brought or maintained
under ORS 477.090, as set forth in the 2011 Edition of Oregon
Revised Statutes. + }
  SECTION 9.  { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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