Enforcement Actions; Civil Penalties and Other Remedies
(1)The Department may:
(a) Conduct field inspections to determine if uses of, and developments on, in or over state-owned submerged and submersible land are authorized by, or conform with the terms and conditions of an easement and, if not,
(b) Pursue whatever remedies are available under law to ensure that any use that is in violation of the terms or conditions of an easement is either brought into compliance with the requirements of these rules or other applicable law, or removed.
(2) In addition to any other penalty or sanction provided by law, for uses subject to easement located on state-owned submerged and submersible land, the Director may assess a civil penalty of not more than $1,000 per day of violation for the following:
(a) Violations of any provision of OAR 141-123 or ORS 273 or 274; or
(b) Violations of any term or condition of a written authorization granted by the Department under ORS 273 and 274.
(3) The Director will give written notice of a civil penalty incurred under OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies)(2) by registered or certified mail to the person incurring the penalty. The notice will include, but not be limited to the following:
(a) The particular section of the statute, rule or written authorization involved;
(b) A short and clear statement of the matter asserted or charged;
(c) A statement of the party’s right to request a hearing within 20 calendar days of the notice;
(d) The time allowed to correct a violation; and
(e) A statement of the amount of civil penalty which may be assessed and terms and conditions of payment if the violation is not corrected within the time period stated.
(4) The person incurring the penalty may request a hearing within 20 calendar days of the date of service of the notice provided in OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies)(3). Such request must be in writing. If no written request for a hearing is made within the time allowed, or if the party requesting a hearing fails to appear, the Director may make a final order imposing the penalty.
(5) In imposing a penalty under OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies) of these rules, the Director will consider the following factors as specified in ORS 274.994 (Amount of civil penalties):
(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 authorizations pertaining to submerged and submersible land or Trust lands;
(c) The impact of the violation on public trust uses of commerce, navigation, fishing and recreation; and
(d) Any other factors determined by the Director to be relevant and consistent with the policy of these rules.
(6) Pursuant to ORS 183.090(2), a civil penalty imposed under OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies) will become due and payable 10 calendar days after the order imposing the civil penalty becomes final by operation of law or on appeal.
(7) If a civil penalty is not paid as required by OAR 141-123-0120 (Enforcement Actions; Civil Penalties and Other Remedies), interest will accrue at the maximum rate allowed by law from the date first due.
Rule 141-123-0120 — Enforcement Actions; Civil Penalties and Other Remedies,