BEFORE THE BOARD OF FORESTRY
STATE OF OREGON
HEARING OFFICER PANEL
In the Matter of Violation of ) DOF Case No. 98-EL058, 98-WL153 & 154
Forest Practices Act, ) Hearings Case No. G60451
by James A. Smejkal ) (ODF)
History of the Case: CASE A: On May 5, 1995, a notification was filed with the
State Forester, Oregon Department of Forestry (DOF), to conduct a forest operation on
land owned by James Smejkal (Smejkal). The proposed operation consisted of a clear cut
of 197 acres with road construction and reconstruction. The operation was approved. The
operation concluded in December 1995. This type of clear cut requires replanting the
harvest units within 24 months. By December 1996 the harvested areas had not been
reforested. On March 28, 1996, attorney Robert Smejkal (for James Smejkal) filed a
written plan to be exempted from the reforestation requirements. The DOF never
approved that exemption request. By May 14, 1998, there was still no reforestation of the
On August 8, 2000, Notice of Civil Penalty, Findings of Fact and Proposed and Final
Order (Case 98-EL058) was served on Smejkal charging him with violation of OAR
629-610-0040(3). On August 23, 2000, Smejkal filed a Notice of Appeal denying the
allegations asserted in the Findings of Fact and asserting affirmative defenses of statute of
limitations and that he had submitted a written plan to be exempted from the reforestation
requirements and that the County Planning Department and County Assessor had already
acknowledged this submission.
CASE B: On March 20, 1998, a notification was filed with DOF to conduct a forest
operation on land owned by Smejkal. The proposed operation consisted of a partial and
clear cut by cable/dozer methods on 45 acres. A written plan was necessary for this
operation because the area of operation was within 100 feet of a medium Type F stream
(Grant Creek) and a small stream that flows into Grant Creek. Smejkal submitted a
written plan that addressed the RMA concerns and agreed to mark the RMA buffer (no-
cut area) for Grant Creek (70' for conifers & 20' for alders) and for the tributary creek
(50' for all cutting). The operation was approved based on Smejkal's written plan. The
operation concluded. A subsequent inspection found violations of the written plan as trees
had been felled into Grant Creek and within the approved buffer zone and a tree had been
felled within the buffer zone of the tributary creek.
On August 8, 2000, Notice-of Civil Penalty, Findings of Fact and Proposed and Final
Order (Case 98-WL153) was served on Smejkal charging him with violation of OAR
629-605-0170(5). On August 23, 2000, Smejkal filed a Notice of Appeal denying the
allegations asserted in the Findings of Fact and asserting an affirmative defense that he
was not the "Operator" as defined in ORS 527.620(13) and/or that the alleged violator
was not acting as his agent. Smejkal contests the calculation of the civil penalty under
OAR 629-670-210 and the enhancement assessed under OAR 629-670-220.
CASE C: On March 20, 1998, a notification was filed with the DOF to conduct a forest
operation on land owned by Smejkal. The proposed operation consisted of a road
construction and clear cut by cable/dozer methods on 80 acres, with road construction and
reconstruction. The notification lists sites of concern as being significant wetland within
300' and a slope of 35% to 65% and old slides and small failures. Smejkal and Forest
Practices Forester (FPF) Greg Wagenblast (Wagenblast) had communication about the
slope concerns on an existing road. The written plan was approved. Prior to actual road
construction, FPF Wagenblast met with Smejkal about a different area of proposed road
construction. FPF Wagenblast confirmed that this was a high risk site and that he had
some concerns with the harvest site and access to it. FPF Wagenblast informed Smejkal
that he must obtain specific approval if he was going to construct a road on a high risk
site. Subsequently Smejkal constructed this road on a high risk site without first obtaining
necessary written approval.
On August 8, 2000, Notice of Civil Penalty, Findings of Fact and Proposed and Final
Order (Case 98-WL154) was served on Smejkal, charging him with violation of OAR
629-630-0500(1). On August 18, 2000, Smejkal filed a Notice of Appeal denying the
allegations asserted in the Findings of Fact and contesting the calculation of the civil
penalty assessed under OAR 629-670-210 as well as the enhancement assessed under
On January 17, 2001, a hearing was conducted at the Veneta, Oregon DOF offices.
Respondent appeared only through his attorney, Robert Smejkal. Rob Lundblad
represented the DOF with witnesses FPF Tom Berglund (Berglund) and FPF Wagenblast.
Case A, 98-EL058: Exhibits 1A through 14A were admitted into evidence. Case B,
98-VVL153: Exhibits 1B through 12B were admitted into evidence. Case C, 98-VVL154:
Exhibits IC-10 C were admitted into evidence.
Legal Issue: (A) CASE A-197 Acre Clear Cut: Whether, Smejkal is subject to civil
penalty for violation of OAR 629-610-0040(3), failure to complete planting or seeding
within 24 months unless a written plan for natural reforestation has been approved by the
(B) CASE B-45 Acre Clear Cut: Whether Smejkal is subject to civil penalty for violation
of OAR 629-605-0170(5), failure to comply with all provisions of an approved written
(C) CASE C-80 Acre Clear Cut: Whether Smejkal is subject to civil penalty for violation
of OAR 629-630-0500(1). conducting harvesting operations on high risk sites without
first obtaining prior approval.
Findings of Fact:
CASE A: NOTIFICATION 95-771-55705
1. Smejkal is the owner of a 197-acre tract of land (outside of the Springfield Urban
Growth Boundary) in the Eastern Lane District.
2. The land is located in Sections 10, 11, 14 and 15, Township 18S., Range 2 W., W.M.,
in Lane County.
3. On May 5, 1995, Frank Brown, representing the timberowner, Coastal Timber
Harvesters (Smejkal), filed Notification Number 95-771-55705 with the Department
of Forestry (DOF).
4. The proposed operation was a clear cut of mature conifers (involving road
reconstruction and construction) of 197 acres or forestland owned by Smejkal.
5. The DOF reviewed the proposed harvest area for possible environmental issues.
6. The DOF approved the operation and the operation began shortly thereafter.
7. The clear cut operation concluded in December 1995.
8. By December 1996, the clear cut area of operation had not been reforested.
9. On March 28, 1996, Robert Smejkal, attorney for Smejkal, filed with the DOF, a
Landowner Written Plan to be Exempted from the Forest Practice Reforestation
Requirements (exemption request).
10. This was a plan to change the nature of the property from forestland to pasture or
grazing and cattle production.
11. The exemption request was signed off by the County Planning Department as well as
the County Assessor; however, was not approved by the State Forester.
12. FPF Berglund, heard through Doug Wolf (Wolf), a private forester working for
Smejkal, that Smejkal was considering a land use change (converting the harvested
forestland into grazing land) and FPF Berglund wanted to make sure that Smejkal was
aware of reforestation requirements as well as the procedure he must go through to
change the land use.
13. On November 1, 1996, FPF Berglund wrote Smejkal a letter to inform him that, as a
landowner, he was responsible for ensuring successful reforestation on this unit.
14. This letter went on to specify that the Oregon Forest Practices Act (FPA) required
reforestation activities to begin by December 1996, and to include seedling
procurement, site preparation and/or planting. A further specified requirement was
that all planting must be complete by the end of the second planting season, which
was April 1, 1998.
15. At the time of the November 1, 1996 letter from FPF Berglund to Smejkal, FPF
Berglund had not yet actually seen the March 28, 1996 exemption request and there
had been no State Forester approval of that exemption request.
16. Shortly after sending Smejkal the November 1, 1996 letter, FPF Berglund obtained
and reviewed the exemption request, but did not grant it.
17. FPF Berglund visited the site again with another FPF and also discussed this
exemption request with other members of DOF, who concurred that the exemption
request should not be granted at that time.
18. FPF Berglund inspected the operation area again on May 14, 1998 to see if any
affirmative steps toward reforestation or land use change had been accomplished and
found: (a) no reforestation; (b) lack of brush control, evidenced by sprouting maple
clumps, brush and ungrazed grasses over a wide area of land; (c) no cattle;
(d) dilapidated fence or no fence on the boundary of the Smejkal property and an
adjoining property (i.e., no cattle retention possible with this fence); (e) slash pile
from landing site; (f) some evidence that cows had, at one time, been at one portion of
the site (cow pies).
19. On June 5, 1998, a Notice of Violation Citation, Case No. 98-EL-058, and Order to
Cease Further Violation was issued to Smejkal, changing him with failure to reforest
within 24 months as required by OAR 629-610-0040(3) and directing him to plant the
logged area by April 1, 1999 and ensure that a minimum of 200 trees per acre are
free-to-grow by December 31, 2002.
20. On October 21, 1998, Wolf talked to FPF Berglund about why the original exemption
request had not been approved by him.
21. FPF Berglund communicated that he believed that two comers of the property were
still not being pastured and, that if the property wasn't being used for pasture, it
should be replanted.
22. After further discussion, Wolf agreed to develop a Reforestation and Pasture
Enhancement Plan for the property whereby a portion of the operation area would be
reforested. and a portion of the area would be developed as pasture land.
23. On November 28, 1998, Wolf submitted a Reforestation & Pasture Enhancement Plan
to FPF Berglund.
24. This plan set out the proposal to reforest some of the land and keep other parts for
grazing and livestock production.
25. The plan included a proposal to divide the harvested area into three (3) distinct areas.
26. Area I would consist of 21.5 acres to be site prep sprayed on parts of the land with a
follow up using a "hack and squirt" method and finally replanting part of the area with
ponderosa pine seedlings
27. Area 2 would consist of 11.2 acres to be sprayed, following with "hack and squirt"
and finally replanting with Douglas-fir seedlings.
28. Area 3 would consist of 82 acres to be maintained as grazing land.
29. FPF Berglund accepted this plan as satisfactory compliance with the June 5, 1998
Repair Order (if the proposed actions in the. plan were actually completed).
30. On January 8, 2001 FPF Berglund visited the site and found trees planted, but still
some brush control (as was provided for in the plan) needed to be accomplished.
CASE B: NOTIFICATION 98-50437
31. Smejkal is the owner of a 45-acre tract of land in the Western Lane District.
32. The land is located in Section 8 of Township 19S., Range 11 W., W.M., in Lane
33. On March 20, 1998, the proposed operator, Dennis Miller (Miller), representing Land
and Timber owner, James Smejkal, filed Notification Number 98-50437.
34. The proposed operation was a partial and clear cut of mature conifers by cable/dozer
methods on this 45 acre tract.
35. The notification itself notes that a written plan is required because the proposed
operation was within 100 feet of a large lake or Type F or Type D stream.
36. The DOF reviewed the proposed harvest area for possible environmental issues.
37. FPF Wagenblast then prepared a Forest Activity Inspection Report, which outlined
the buffer zones and slope issue which needed to be addressed in any written plan.
38. On April 14, 1998, FPF Wagenblast mailed this report to Smejkal and Miller, the
operator listed in the notification.
39. FPF Wagenblast then set up a meeting with Smejkal and met him on site to perform a
40. At the site they discussed that a written plan was necessary before this operation could
begin, as Grant Creek was within the area of proposed operation.
41. Grant Creek is a medium Type F stream and, FPF Wagenblast informed Smejkal that
for conifers, a 70 foot buffer (from the high water line) would be necessary to Protect
that resource and for alders only a 20 foot buffer would be necessary.
42. Smejkal agreed to place flags for the operator to indicate the buffer zone.
43. Another small stream that is a tributary to Grant Creek was also inspected and FPF
Wagenblast informed Smejkal that, because of the presence of fish within the stream,
the classification of that stream was a small fish bearing stream.
44. FPF Wagenblast informed SmejkaI that the tributary required a 50 foot buffer for
conifers and a 20 foot buffer for alders.
45. They also discussed the slope issue as slopes in excess of 60% were within the
proposed area of operation.
46. On April 18, 1998, Smejkal submitted a written plan to DOF.
47. In this written plan, Smejkal agreed to the above buffers and promised that he would
mark the RMA boundary as well as the 20' no-cut boundary with ribbon.
48. FPF Wagenblast reviewed this written plan, made some modifications and approved it
effective May 12, 1998.
49. The approval was granted on conditions that: (a) Smejkal abide by the Grant Creek
70' buffer for conifers and 20' buffer for alders and the tributary to Grant Creek buffer
of 50' for all conifers, although cutting of alder from 20' to 50' outside the
high water line would be permitted; (b) all falling adjacent to the buffer must be away
from or parallel to the buffer and not enter into the RMA; (c) Smejkal was to mark
with ribbon all of the buffer zones; (d) there be no hauling or skidding through Grant
50. Along with the approval of the written plan, FPF Wagenblast prepared and mailed to
Smejkal a copy of a Forest Activity Inspection Report to reinforce that, "No activity is
allowed below the old road due to extreme slopes of safety concern to the residence
located below the slope."
51. After the approval of the written plan, Smejkal contracted with a different operator,
Tony Foglio (Foglio), who later performed the operation.
52. In October 1998, the operation concluded.
53. During a routine fire inspection of another portion of the harvest unit, Foglio
requested that FPF Wagenblast look over the completed Grant Creek operation.
54. FPF Wagenblast discovered that no flagging had been done, trees had been felled into
the stream and trees felled within the RMA (area protected under the written plan).
55. Although Smejkal had supplied Foglio with a copy of the approved written plan, they
had no discussion as to its contents.
56. Foglio's cutter informed Foglio that he knew what the buffer zone was and, since
there was no flagging, he would just "eyeball" the distances.
57. FPF Wagenblast measured some of the stumps of the downed trees from the high
water mark and found 8 cedar and one Douglas fir felled between 38' to 47' from the
high water mark of Grant Creek and 2 alders felled 15' and 23' from the high water
mark of Grant Creek and one cedar felled 39' from the tributary to Grant Creek.
58. Some of the harvested trees actually fell into Grant Creek, with some tree tops still
left within the aquatic area and RMA of the stream.
59. Vegetation (brush) from the water edge throughout the unit had been crushed or
damaged, specifically the vegetation within ten feet of the high water line.
60. A large quantity of limbs and tops were in and on top of Grant Creek.
61. Soil disturbance was observed within 10' of the stream.
62. This soil disturbance was a result of either the removal of the logs from the stream or
not obtaining the required lift to swing the material free of the ground and aquatic
area when lifting it over the stream.
63. FPF Wagenblast instructed Foglio to remove the materials (from the stream and RMA
and place them in a stable location where they could not enter the stream during high
64. On October 22, 1998, a Notice of Violation Citation and Order to Cease Further
Violation was issued to Smejkal, charging him with failure to comply with all
provisions of the approved written plan and conditions of approval under OAR 629-
605-0170(5) and directing him to replant a minimum 200 trees per acre of conifer
(Douglas-fir, western hemlock or cedar) within two years in the RMA and that they
must be free to grow within six years.
65. On January 4, 1999, FPF Wagenblast inspected this area and found that the fish-
bearing stream had been cleaned of all materials, which had been placed on a bank at
the edge of the stream. The exposed soils at the landing were seeded and mulched as
CASE C: NOTIFICATION 98-50435
66. Smejkal is the owner of an 80 acre tract of land in the Western Lane District.
67. The land is located in Section 8 of Township 18S., Range 11 W., W.M., in Lane
68. On March 20, 1998, operator, Miller, representing landowner and timberowner,
Smejkal, filed Notification 98-50435 with the DOF.
69. The proposed operation was a clear cut harvest and road construction with a proposed
start date of May 1, 1998.
70. The Notification states that site conditions include significant wetland within 300', a
slope of 35% to 65% and old slides and small failures.
71. FPF Wagenblast met on site with Miller and Smejkal to discuss some preliminary
questions they had about the stream and the slope issues of roads they wished to
reopen for harvesting the operation.
72. With the steeper slopes FPF Wagenblast suggested that they utilize a yarder so as to
minimize slope damage.
73. On April 14, 1998, FPF Wagenblast issued a Forest Activity Inspection Report to
Miller and Smejkal.
74. This report stated that prior written approval was required for operations involving
high-risk sites and, if harvesting or road construction activities were planned on
slopes in excess of 60%, there must be a written plan detailing measures to protect
soils and water quality.
75. The report also informs Miller and Smejkal that a written plan needed to be filed (and
approved) if the operation was going to be within 100' of the North Fork of the
76. On April 18, 1998, Smejkal submitted a written plan.
77. The written plan indicates that Robert King Logging (the adjacent landowner, who is
also an operator), would perform the operation.
78. The written plan indicated that the operation would not be within 100' of the North
Fork of the Siuslaw River, but that the haul road was within the 100' area.
79. The written plan indicated that the average slope within the RMA is 60%. No high
risk sites were identified in the plan.
80. The written plan was approved with some alterations to protect the slope area.
81. Before the operation began there was a falling-out between proposed operator King
82. Smejkal later hired Foglio to perform the operation.
83. During a June 11, 1998 fire inspection, FPF Wagenblast met with Foglio at the site.
84. Foglio had some questions about a road that Smejkal wanted Foglio to construct.
85. FPF Wagenblast viewed that proposed road area and informed Foglio that this road
would not be acceptable as it was across a high risk site and, as of that time, no
written plan had been submitted or any approval issued that would allow road
construction on a high risk site.
86. On June 11, 1998, a Forest Activity Inspection Report (active or post-operation
report) was issued to Smejkal and Foglio.
87. This report noted that, prior to opening the skid road, the operator and FPF
Wagenblast needed to meet and walk the road in detail and the lower section needed
to have a written plan on road construction for slopes greater than 60%.
88. The next day Smejkal met with FPF Wagenblast at the office and they discussed the
hillside and the area of proposed road construction.
89. Smejkal informed FPF Wagenblast that it would be necessary to construct a new
segment to the existing road as he intended to remove a small patch of timber on the
ridge top above the ridge road, and he was unable to use the lower section of the ridge
90. The existing road crossed into the property of an adjacent landowner who had denied
Smejkal permission to cross his property.
91. FPF Wagenblast confirmed that this proposed road was a high risk site and that he
some concerns with the harvest site and access.
92. Smejkal was aware of the requirements of operating in high risk sites as he had
previously filed a written plan for approval to operate at a different high risk site that
was located in another operation area.
93. Smejkal informed FPF Wagenblast that all he wanted to do was follow the existing
(old) skid road and reopen it and, from that point up to the ridge top, he felt that there
were some grades that would be 60% or less (not a high risk site).
94. FPF Wagenblast informed Smejkal what the building practices would be if he was
going to operate on a high risk site, i.e., the type of equipment he would need.
95. Smejkal stated he had a dozer which he could construct the road with.
96. FPF Wagenblast let Smejkal know that if he was on slopes less than 60% the end-
hauling was still an issue, but would still be acceptable as long as it was not done on
a high risk site.
97. Smejkal informed FPF Wagenblast that Smejkal would come out that evening and
flag out the proposed skid road and see if he could find a route on slopes less than
98. FPF Wagenblast confirmed that a written plan would not be required if Smejkal could
find a route on slopes less than 60%.
99. FPF Wagenblast informed Smejkal that the road would need to be full bench and the
waste material would need to be end-hauled to a stable location that could not
impact/enter waters of the state.
100. FPF Wagenblast offered to come and inspect the proposed road if Smejkal flagged it
and contacted him to come out.
101. Smejkal indicated that he had a clinometer and that he would walk it and, if there
were any problems, he would get back with FPF Wagenblast.
102. Subsequently, and without further communication with FPF Wagenblast, Smejkal
caused the road to be constructed on the same high risk route that he had previously
discussed with FPF Wagenblast.
103. In October 1998, FPF Wagenblast inspected the newly constructed road and found:
(a) that it was a full bench road; (b) there had been no end-hauling as all the waste
material from cutting into the slope had been sidecast below the road (onto the high-
risk site); (c) a small N stream is located at the base of this slope; (d) the average road
grade was 40%; however, grades equal to or in excess of 65% (65%, 68%, 72%, 75%
and 80%) were also present at various locations on the newly constructed road.
104. Had Smejkal flagged the exact proposed road construction area and had FPF
Wagenblast come to the site prior to actual construction of this road, FPF Wagenblast
would have informed Smejkal that there were high-risk slopes (in excess of 65%) and
a written plan would necessary.
ALL CASES (A - C)
105. Smejkal has prior knowledge of the FPA due to past operations where he has filed
various permits or notifications.
106. Smejkal has past violations of the FPA as noted on the attached Violation History,
hereby made a part of this Proposed Order as Attachment A.
CONCLUSIONS AND REASONS
(A) Violation Case 98-EL058: Respondent has violated OAR 629-610-0040(3), in that
he failed to complete planting or seeding within 24 months from the date the
operation was completed.
CASE A-LEGAL CHALLENGES
On August 18, 2000, respondent filed a Request for Hearing and Response. On
September 12, 2000, respondent filed an amended response where he raises various legal
issues. Issues raised by Smejkal for Case A-98-EL058 are: (a) statute of limitations, in
that the Notice of Civil Penalty was issued over two years from the date of both the
alleged violation and the issuance of the Notice of Violation; (b) the written plan for
exemption was properly approved by the County Planning Department and County
Assessor; (c) the proposed change was achieved and maintained by Smejkal and (d)
challenges to the validity of the penalty amount.
THE STATUTORY TIME LIMIT ISSUE
Respondent raises an issue that the action commenced by the DOF to impose a civil
penalty was not commenced within the statutory time limit of two years as provided by
ORS 12.110(2) and therefore DOF was precluded from bringing this action.
The citation was issued on June 5, 1998 and the Notice of Penalty Assessment was not
initiated until August 8, 2000 (more than two years between the two).
ORS Chapter 527 FPA does not contain any provision for a time limitation on actions
brought under this Chapter. Respondent asserts that, because ORS Chapter 527 is
silent as to time limitations, then ORS 12.110(2) must control.
ORS 12.110(2) provides two-year statute of limitations for the commencement of judicial
actions by filing of complaints and service of summons upon defendants (not otherwise
covered by other provisions that specify their own limitations).
The State Board of Forestry has recently issued a final order that addresses this same
issue. In the case of Kent Gambee, dba Alpine Management L.L.C., Agency Case Nos.
96-CM186 (Hearing Case No. G60230), the Board determined that actions under the
FPA, as set forth in ORS chapter 527 do not carry a statute of limitations.
The Board states, "Even if this proceeding were the type of 'action' potentially subject to
Chapter 12, ORS 12.110(2) would not apply to bar the proceeding. Statutes of limitation
do not normally apply to the state. State Land Board v. Lee, 84 Or 431, 435, 165 P 372
(1917); In re Desborough's Estate, 220 Or 528, 531, 349 P2d 849, 851 (1960). Although
the administrative enforcement provisions of the FPA do not contain a statute of
limitation as such, they nevertheless constitute a special process, which potentially would
be frustrated by application of ORS 12.110(2). Furthermore, the FPA process does not
result in a penalty or forfeiture within the meaning of ORS 12.110(2). State v. Renteria,
59 Or App 619, 651 P2d 1362 (1982)."
Therefore, the DOF is not precluded from pursuing Smejkal's violation of the FPA by
any statutory time limit issue.
REFORESTATION & EXEMPTION ISSUES
Respondent argues that the application for exemption should have been granted and that
there has been a conversion of the land from forestland to grazing land; therefore, no
reforestation is required.
ORS 527.620(8) defines forestland as, "land which is used for the growing and harvesting
of forest tree species, regardless of how the land is zoned or taxed or how any state or
local statutes, ordinances, rules or regulations are applied."
OAR 629-600-0100(24) defines forestland as, "land which is used for the growing and
harvesting of forest tree species, regardless of how the land is zoned or taxed or how any
state or local statutes, ordinances, rules or regulations are applied."
The land at the operation site was forestland. Smejkal filed a notification to clear cut this
land and received approval from the DOR At that time, and until any exemption from the
reforestation requirement was actually granted, OAR 629-610-0040 applied.
OAR 629-610-0040(1) states that the time period for compliance with the reforestation
rules begins at the completion of the operation or 12 months after tree stocking has been
reduced, whichever comes first. Section 2 requires that, when reforestation is required,
the landowner begin reforestation, including any necessary site preparation, within 12
months. Finally Section 3 requires the landowner to complete planting or seeding within
24 months unless the State Forester has approved a written plan for natural reforestation.
The date of completion is December 1995. The above law would then require that
Smejkal begin reforestation within 12 months of that time (or by December 1996).
On November 1, 1996, approximately one year after the operation concluded, FPF
Berglund wrote to Smejkal about the reforestation requirements and specifically informed
him that he must begin reforestation activities (seedling procurement, site preparation
and/or planting) by December 1996 and that all planting must be complete by the end of
the second planting season, which was April 1, 1998. In that same communication,
Berglund wrote that he heard that Smejkal had discussed the possibility of converting the
harvested forestland into grazing land and warned Smejkal that if that was his intention
then he must request an exemption from the reforestation requirements (OAR 629-610-
Respondent argues that the application for exemption was submitted in March 1996,
when "this operation was still ongoing" and the November 1, 1996 letter from FPF
Berglund came later and is generic in form and did not take into account that the
exemption request had already been filed. Respondent then makes an equitable estoppel-
type argument that, since the application had been filed, it was the DOF who should have.
timely communicated with Smejkal as to whether or not the exemption request would be
Respondent argument falls short for two reasons. First, the operation was not ongoing as
of March 1996. The clear cut operation concluded in December 1995. Secondly, the
theory of equitable estoppel requires an affirmative action on the part of a governmental
entity (not an act of omission). Further, it requires specific misleading or erroneous
information to have been provided by a governmental agency, followed by actual
detrimental reliance on the erroneous or misleading advice. In this case there was no
erroneous or misleading advice or information supplied by the DOF to Smejkal.
Smejkal chose to assume that his exemption application must have been granted, because
he had not heard from the DOF after submitting his exemption request.
The facts surrounding Smejkal's application for exemption and his failure to complete
required reforestation are unfortunate. However, this was Smejkal's operation and the
law requires that prior approval for such exemption must be granted by the State Forester.
OAR 629-610-0090 allows a landowner to request all or a portion of an operation area to
be exempted from the reforestation requirements. This rule requires prior approval for
such an exemption from the State Forester.
OAR 629-610-0090(2) states, "In seeking prior approval, the landowner shall provide
written documentation to the State Forester, which establishes:
(a) The specific portion of the operation area necessary for the proposed change in land
(b) The intended change in land use and the incompatibility of the land use with forest
(c) The intended change in land use is authorized under local land use and zoning
ordinances and all necessary permits and approvals have been obtained, or will be
obtained within 12 months following the reduction in tree stocking; and
(d) The county assessor and local planning department have been notified in writing of
the proposed change in land use."
OAR 629-610-0090(3) requires that reasonable progress towards the change in land use,
as determined by the State Forester, shall be made within 12 months of the completion of
the operation. Evidence of reasonable progress towards a change to an agricultural use
may include activities such as stump removal, cultivation, fencing and planting or seeding
of crops or pasture. Section 4 requires that the change in land use shall be completed and
continuously maintained within 24 months of the completion of the operation. Section 6
states that the State Forester shall determine if the change in land use has been completed
by the presence or absence of improvements necessary for use of the land for the intended
purpose and evidence of established and continuously maintained use of the land for the
It is the State Forester who must examine each request for exemption, utilizing the above
published standards and then determine whether reasonable progress towards the change
in land use has been made. The DOF's evidence on that issue was persuasive to show
that sufficient reasonable progress towards the change in land use had not yet been made
at the time of application or by the time the application was initially rejected.
The operative phrase in the above law is, "Prior approval shall be obtained for such
exemption from the State Forester." Before the citation for violation was issued there had
not been any prior approval or any exemption from the State Forester.
This issue is addressed in Case B (below)..
CASE A-VIOLATION OF OAR 629-610-0040(3)
OAR 629-610-0000 through 629-610-0900 are known as the reforestation rules. These
rules establish standards to ensure the timely replacement and maintenance of free to
grow forest tree cover following forest operations. Operations completed after January 1,
1995 must comply with the reforestation rules. [See OAR 629-610-0000(1)(2)(3)]
The time period for compliance with the reforestation rules begins at the completion of
the operation or 12 months after tree stocking has been reduced, whichever comes first.
The landowner shall begin reforestation, including any necessary site preparation, within
12 months when reforestation is required. [See OAR 629-610-0400(1)(2)]
OAR 629-610-0040(3) states that the landowner shall complete planting or seeding
within 24 months unless a written plan for natural reforestation has been approved by the
Once the legal questions are addressed (see above discussion of the statute of limitations
and reforestation and exemption issues), the actual facts surrounding the charged
violation, are not complicated.
The persuasive evidence was that Smejkal conducted an operation that reduced stocking
to a level that required reforestation. The operation concluded December 1995.
Compliance with the reforestation requirements were not forthcoming by Smejkal in a
timely manner as required by law. It is understood that Smejkal anticipated that there
would be a land use change and reforestation exemption granted on this area; however,
that was not the case. The issue of the exemption has already been addressed (see above)
and it was concluded that Smejkal, never actually received the required approval of the
State Forester. On November 1, 1996, FPF Berglund sent Smejkal a letter to remind him
of his responsibility for ensuring successful reforestation on this unit and reminding
Smejkal that he must begin reforestation by December 1996 and that all planting must be
complete by the end of the second planting season, which was April 1, 1998.
Smejkal did not comply with those requirements and has violated OAR 629-610-0040(3).
(B) Violation Case 98-WL-153: Respondent has violated OAR 629-605-0170(5), in
that he failed to follow all provisions specified in the approved written plan.
CASE B-LEGAL ISSUES
On August 23, 2000 respondent filed a Request for Hearing and Response. Issues
raised for Case B-98-WL153 are that Smejkal was not the "operator" as defined by
ORS 527.620(13) or that the alleged violator was not acting as his agent. Respondent
also contests the calculation of the enhancement of the civil penalty and the legality of
OAR 629-670-210 and OAR 629-670-220.
OPERATOR & AGENT ISSUE
Respondent raises an issue that Smejkal should not be held liable for mistakes made by
the person or crew who actually cut the timber within the RMA.
Smejkal was an operator as defined by ORS 527.620(10). This statutory provision
defines the term "Operator" to include any person, including a landowner or timber
owner, who conducts an operation.
The term "Operation" is defined as any commercial activity relating to the growing or
harvesting of forest tree species. [See ORS 527.620(9)]
The landowner or timberowner is a pivotal party to any operation. There can never be an
approved (by the DOF) harvesting of timber without the consent of the landowner or
timberowner. By definition there can be one or more operators on each operation
(landowner, timberowner, cutter, roadbuilder); however, the landowner or timberowner is
always considered one of the operators and is ultimately responsible for all actions
conducted during this operation. In case 98-WL153, Smejkal met with the FPF in a pre
inspection meeting and promised to take responsibility for preparing an acceptable
written plan and for marking the area near the stream and its tributary that were to be
protected. Had Smejkal followed through and actually marked the no-cut and RMA
areas, then there would have been no ambiguities for the cutter to consider.
Respondent proposes that the cutter was not acting as his agent and therefore Smejkal
would have no liability for the violations of the written plan that occurred in furtherance
of his operation. There is no question that Smejkal hired Foglio to perform the actual
cutting operation. Smejkal is the principal in this transaction and he would be responsible
for his agent (Foglio) and any of his agent's employees' actions that were in furtherance
of the project that Smejkal hired them to perform. As the property and timberowner,
Smejkal is ultimately responsible for the violations of the written plan that occurred when
trees were cut in the RMA and in the no-cut zone. Once again it must be pointed out that
Smejkal could have avoided this violation if he had followed through on his promise to
flag or mark these zones.
COMBINING OF CITATIONS TO ASSESS PENALTY ISSUE
Respondent raises a challenge to the DOF's imposition of a penalty amount under
OAR 629-670-0210(8) [combining violations] and the doubling of the assessed penalty
under the authority of OAR 629-670-0220.
The legislature has required the State Board of Forestry to enact rules to establish the
amount of civil penalty that may be imposed for a particular violation.
[See ORS 627.685(1)]
ORS 627.685 (2) sets out the criteria that the State Board of Forestry must consider when
imposing a penalty. These standards include: (a) the past history of the person incurring
a penalty in taking all feasible steps or procedures necessary or appropriate to correct any
violation; (b) any prior violations of statutes, rules, orders and permits pertaining to the
Oregon Forest Practices Act; (c) the gravity and magnitude of the violation; (d) whether
the cause of the violation was repeated or continuous; (e) whether the cause of the
violation was an unavoidable accident, negligence or an intentional act; (f) the size and
type of ownership of the operation; (g) any relevant rule of the board and (h) the
violator's cooperativeness and efforts to correct the violation.
That law further allows the calculated penalty to be remitted or mitigated on such terms
as the board determines to be proper and consistent with the public benefit.
Finally the law allows the board to delegate to the State Forester all or part of the penalty
These are broad powers specifically granted by statute.
Based on these rulemaking powers, the DOF enacted rules for penalty assessment. [See
OAR 629-670-0200 - 0220]
OAR 629-670-0210(8) allows the civil penalty administrator discretion to combine
violations for the sake of assessing reasonable penalties. The circumstances under which
combination is allowed are specifically set forth in that rule. Those circumstances
include: (a) multiple citations have been issued for violations resulting from the same
practice or (b) multiple citations have been issued for violations resulting in the same
damage or (c) according to a finding by the State Forester, a combination of violations is
in the public interest and consistent with the policy of the FPA.
Respondent asserts that the violations should be combined. While it is true that the above
law grants the civil penalty administrator discretion to combine violations for the sake of
assessing reasonable penalties, there is no statute or rule that requires such combining of
citations for the purpose of reducing the total penalty amount. In this case the separate
penalty amounts are justified by the civil penalty administrator by reference to standards
set forth in the rule that determines the amount of civil penalty to be assessed. Each
citation covers a separate and distinct violation and distinct operation. In each case
Smejkal was aware of the specific requirements he must follow and in each case he either
disregarded the proper standard or allowed his agent to do so. The facts and
circumstances of each violation do not even fall under the above law that allows the civil
penalty administrator to combine citations to allow for reduction of the civil penalty.
UTILIZING BOTH THE PRIOR KNOWLEDGE FACTOR AND REPEAT
VIOLATOR PROVISION TO ASSESS THE PENALTY VIOLATION ISSUE
The respondent proposes that the DOF cannot use both the prior knowledge penalty
multiplier [See OAR 629-670-0210(4)] and the authority to increase penalties for repeat
violations [See OAR 629-670-0220(1)].
OAR 629-670-0220(1)]. states, "Notwithstanding OAR 629-670-0210, when an operator
has had three or more separate incidents of forest practice violations within any three year
period, the State Forester may assess a civil penalty of any amount up to the limit
established in ORS 527.685(1) as may be deemed appropriate to deter the operator from
ORS 527.685(1) allows the board to establish a rule to set the amount of civil penalty that
may be imposed for a particular violation. No civil penalty shall exceed $5,000 per
This doubling of Smejkal's penalty from $2,500 to $5,000 is authorized by the above
statute and rule. The rationale for this authority delegated to the DOF is to allow punitive
action by the DOF to be directed toward an operator who meets the standard of three or
more separate incidents of forest practice violations within any three year period.
Smejkal's record meets those criteria.
Respondent's representative points out that the penalty calculation already has a provision
to take into account an operator's prior violation, i.e., the "P" factor. He further states
that the rule that authorizes increasing the assessed penalty up to $5,000, (OAR 629-670-
0220(1)) is arbitrary and excessively broad, with no stated basis by which to determine
just how much any particular circumstance would result in a specific increased penalty
The state has granted the State Forester the authority to assess penalties, based on specific
criteria, not to exceed $5,000 for each violation. The DOF cannot abuse this authority if
it enacts rules (properly promulgated), which it has done, that set forth the specific
circumstances under which any penalty can be increased and does not attempt to impose
any penalty in excess of the authority specifically granted to it by the state ($5,000).
Therefore, in this case, respondent's argument fail and the prior violations may be
CASE B-VIOLATION OF OAR 629-605-0170(5)
Operators shall obtain written approval from the State Forester of written plans before
conducting any operations requiring notification under OAR 629-605-0140, which are
within 100' of a Type F stream. [See OAR 629-605-0170(1)(a)]
Smejkal's 45 acre operation falls within the above guidelines because the area of
operation was within 100' of a medium Type F stream (Grant Creek) and a tributary to
that stream. Smejkal filed a notification and then followed up by properly filing a written
plan. The written plan was approved by the State Forester on the basis of agreed upon
operating methods and practices. Smejkal specifically agreed to flag or mark the no-cut
buffers and the RMA area to be protected. Cutting distances from both Grant Creek and
its tributary were specified in this approved plan.
OAR 629-605-0170(5) states that "Operators shall comply with all provisions of an
approved written plan."
Once the legal questions are addressed (see above discussion of the operator and agency
issues), the actual facts surrounding the charged violation, are not complicated.
The persuasive evidence shows that Smejkal was very involved in meeting with FPF
Wagenblast and in the development of the written plan. The written plan was very
specific as to what was allowed (harvesting outside the 50-foot RMA for conifers and
outside the 20-foot no-cut buffer for alders), what was not allowed (yarding, skidding or
landing in or towards Grant Creek and harvesting conifers within the 50-foot RMA and
alder within the 20-foot no-cut zone) and what was required (marking/flagging the RMA
and buffer). Smejkal was knowledgeable on the terms and conditions contained in the
approved written plan. Smejkal hired Foglio to perform the harvesting operation.
Smejkal provided Foglio with a copy of this written plan; however, Smejkal never
followed through to ensure that his obligations under the. written plan were carried out.
Had Smejkal marked/flagged the RMA and buffer zones (as he agreed to do), then there
would have been no confusion on the part of the person who actually cut the conifer and
alders within the agreed upon protected zone.
Smejkal is the land and timberowner and he is ultimately held responsible for the failure
to follow all provisions of the approved written plan.
(C) Violation Case 98-WL-154: Respondent has violated OAR 629-630-0500(1). in
that he failed to obtain prior approval from the State Forester before conducting
harvesting operations on high risk sites.
On August 23, 2000, respondent filed a Request for Hearing and Response. Smejkal
contests the calculation of the enhancement of the civil penalty and the legality of OAR
629-670-210 and OAR 629-670-220. Those issues have already been addressed above in
Violation Case B.
CASE C-VIOLATION OF OAR 629-630-0500(1).
OAR 629-630-0500(1). states, "In the Northwest Oregon and Southwest Oregon regions,
operators shall obtain prior approval from the State Forester before conducting harvesting
operations on high risk sites."
"High risk sites," are specific locations determined by the State Forester within high risk
areas. A high risk site may include but is not limited to: slopes greater than 65 percent.
[See OAR 629-600-100(28)]
"High risk areas," are lands determined by the State Forester to have a significant
potential for destructive mass soil movement or stream damage because of topography,
geology, biology, soils, or intensive rainfall periods." [See OAR 629-600-100(27)]
The persuasive evidence is that Smejkal had site visits with FPF Wagenblast where they
discussed slope, road and stream issues. FPF Wagenblast suggested utilizing a yarder so
as to minimize slope damage. On April 14, 1998, FPF Wagenblast provided Smejkal
with a report notifying him that prior written approval is required for operations involving
high risk sites and that a written plan (detailing measures to protect soils and water
quality) would be necessary if harvesting or road construction activities were planned on
slopes in excess of 60%. Smejkal submitted a written plan indicating that the average
slope within the RMA was 60% and that no high-risk sites were identified in the area of
operation. The written plan was approved, based on the information supplied within it.
Some months later, a different operator (Foglio) approached FPF Wagenblast to discuss a
proposed road within the operation area. FPF Wagenblast viewed the proposed road and
informed Foglio that this road would not be acceptable as it was across a high risk site
and, as of that time, there was no written plan that would approve such a road. Thereafter,
FPF Wagenblast met with Smejkal and informed him that the road he now intended to
utilize was a high risk site. Smejkal promised to come out that evening and measure the
slopes on his proposed route. FPF Wagenblast offered to make himself available to come
out and inspect the site again after Smejkal marked and measured. Smejkal did not
contact FPF Wagenblast again and immediately build the road on the site about which he
and FPF Wagenblast had talked (and about which FPF Wagenblast expressed high risk
FPF Wagenblast's testimony about his communications with Smejkal are accepted to
show that Smejkal was warned that his proposed site appeared to be in excess of the 65%
standard, which would require an approved written plan. FPF Wagenblast's measurements
of the road constructed by Smejkal were persuasive to show that the road exceeded the
slope he was allowed to construct or reconstruct without the approval of a written plan
OAR 629-670-210 sets out the basis for determination of the amount of civil penalty to
The formula is $B (C x P) + [($B x D) - ($B x D x R)] = penalty, where $B is the base
fine established for the type of violation, C is cooperation, P is prior knowledge or prior
violations, D is damage to protected resources, and R is the extent to which damage can
be repaired and future damage avoided by repairs.
Penalty for violation 98-EL-058: The proper penalty for the violation of OAR 629-610-
0040(3) is $1,100. $250(1x4) + [($250 x 10) - ($250 x 10 x .96)] = $1,100.
The base fine for violation of OAR 629-610-0040(3) is $250. Respondent's cooperation
factor (C) is I because further violation was ceased upon notice of the violation to
Smejkal and action was taken to repair damage or correct any unsatisfactory condition
where feasible. The prior knowledge or prior violation factor (P) is 4 because Smejkal
has previously been cited for violations of different forest practice rules, statutes or
conditions. The damage factor (D) is 10 because the State Forester has determined that
damage to affected resources is major and extensive and would take more than ten years
to naturally self-restore over a large area. The reparability factor (R) (extent to which
damage can be repaired and/or future damage avoided) is 0.96 because the State Forester
has determined that 96 percent of the actual and potential damage has been repaired,
avoided or mitigated.
Penalty for violation 98-WL-153: The proper penalty for the violation of OAR 629-605-
0170(5) is $5,000. $250(1x10) + [($250 x 0) - ($250 x 0 x NA)] = $2,500 X 2 (penalty
double factor-see below).
The base fine for violation of OAR 629-605-0170(5) is $250. Respondent's cooperation
factor (C) is I because the operation was complete when the violation was discovered and
no repairs were feasible. The prior knowledge or prior violation factor (P) is 10 because
Mr. Smejkal has previously been cited for violation of the same forest practice rule
(February 16, 1997, June 5, 1998 and August 7, 1998). The damage factor (D) is 0
because the violation will not result in resource damage. The reparability factor (R)
(extent to which damage can be repaired and/or future damage avoided) is not applicable
(NA) because the damage factor is zero.
The above calculates to a penalty of $2,500; however, OAR 629-670-0220(1) is
appropriate in this case as Mr. Smejkal has been involved in at least four separate
incidents of forest practices violations in a three-year period and the penalties as assessed
for those incidents have not proven to be a deterrent.
Penalty for violation 98-WL-154: The proper penalty for the violation of OAR 629-630-
0500(1) is $1,000. $100(1x5) + [($100 x 0) - ($100 x 0 x NA)] = $500 x 2 (penalty
double factor-see below).
The base fine for violation of OAR 629-630-0500(1) is $ 100. Respondent's cooperation
factor (C) is 1 because further violation was ceased upon notice of the violation and
action was taken to repair damage or correct any unsatisfactory condition where feasible
[See OAR 629-670-0210(3)(b)]. The prior knowledge or prior violation factor (P) is 5
because Smejkal has previously been cited for nine violations of different forest practice
rules, statutes, or conditions as shown on Attachment A [See OAR 629-670-0210(4)(e)].
The damage factor (D) is 0 because the violation will not result in resource damage [See
OAR 629-670-0210(5)(a)]. The reparability factor (R) (extent to which damage can be
repaired and/or future damage avoided) is not applicable (NA) because the damage factor
is zero [See OAR 629-670-0210(6)].
The above calculates to a penalty of $500; however, OAR 629-670-0220(1)]. is appropriate
in this case as Smejkal has been involved in at least four separate incidents of forest
practices violations in a three-year period and the penalties as assessed for those incidents
have not proven to be a deterrent.
(A) James A. Smejkal is liable to pay a civil penalty in the amount of $ 1, 100 for violation
of OAR 629-610-0040(3).
(B) James A. Smejkal is liable to pay a civil penalty in the amount of $5,000 for violation
of OAR 629-605-0170(5).
(C) James A. Smejkal is liable to pay a civil penalty in the amount of $1,000 for violation
of OAR 629-630-0500(1).
STEVEN F. BEAR
Administrative Law Judge
Dated this 24th day of April 2001.
NOTICE: This is not a Final Order. Exceptions to this Proposed Order must be filed
with the Board of Forestry, 2600 State Street, Salem, Oregon 973 10, not later than seven
days after the date of filing of this Proposed Order with the Board.
Written exceptions to this Proposed Order must be filed with the Department of Forestry,
2600 State St, Salem, OR 97310, not later than ten (10) days after the date of filing of this
Proposed Order with the Board of Forestry. The exceptions shall be confined to factual
and legal issues, which are essential to the ultimate and just determination of the
proceeding, and shall be based only on grounds that:
1. A necessary finding of fact is omitted, erroneous, or unsupported by the preponderance
of the evidence on the record;
2. A necessary legal conclusion is omitted or is contrary to law or the Board's policy; or
3. Prejudicial procedural error occurred.
The exceptions shall be numbered and shall specify the disputed finding, opinions or
conclusions. The nature of the suggested error shall be specified and the alternative or
corrective language provided.
Written argument may be presented to the Board for consideration when it determines
final disposition of this Proposed Order. Written argument must be based only on the
written exceptions filed or in support of the proposed order. The Board will decide at the
time of the meeting whether it will entertain any oral argument. Parties will be notified in
advance of the date and location of the Board meeting, the time when this Proposed Order
will be considered, and the method for filing written argument.
You are entitled to judicial review of the Final Order. Judicial review is by the Oregon
Court of Appeals pursuant to the provisions of ORS 183.482. Judicial review may be
obtained by filing a petition for review with the Office of the State Court Administrator,
Supreme Court Building, Salem, Oregon 97310, within 60 days from the service of the
In the event the Final Order is appealed to the Oregon Court of Appeals, a copy of the
petition should be mailed to T. Mathis, Hearing Section, Employment Department, 875
Union Street, Salem, Oregon 97311 as a means of expediting the preparation of a
transcript of the hearing.