38-1307. NOTICE OF VIOLATION — CEASE AND REPAIR ORDER — STOP WORK ORDER — ENFORCEMENT PROCEDURES — REMEDIES OF THE OPERATOR. (1) When the department determines that an operator violated any provision of this chapter or rule, it shall issue a notice of violation. The notice shall specify the nature of the violation charged and any damage or unsatisfactory condition resulting from the violation.

(2) When a notice of violation is issued under this section, the department:

(a) May issue an order directing the operator immediately to cease further violation and to commence and continue repairing the damage or correcting the unsatisfactory condition, hereinafter referred to as a "cease and repair order".

(b) If after two (2) working days from the delivery of a cease and repair order, the operator fails to cease further violation and to commence and continue repairing the damage or to enter into an agreement to repair pursuant to subsection (2)(d) of this section, in compliance with the order, the department may issue and serve an order directing the operator to cease all forest practices within the contract area, hereinafter referred to as a "stop work order".

(c) The department may initiate the remedies set forth in subsection (2)(e) of this section:

1. At any time after delivery of the stop work order, if the operator fails to immediately stop work in the contract area;

2. After five (5) days from the delivery of the stop work order, if the operator fails to comply fully with the cease and repair order; or

3. At any time after delivery of a notice of violation, if serious or irreparable damage will occur to land as a result of said violation, notwithstanding any other provisions of this chapter.

(d) An operator who has been served with a cease and repair order and who has completed his work in and removed all of his equipment from the contract area, or who cannot enter upon the land to repair the damage because of heavy snow, flooding, or similar serious condition upon the land, may comply with the order by entering into an agreement with the department to commence and thereafter continue to repair the damage within sixty (60) days after repair is practicable following heavy snow, flooding or similar serious condition upon the land.

(e) The department shall initiate the following remedies in accordance with subsection (2)(c) of this section:

1. The department shall estimate the costs of repair of the damage and reasonable administrative and legal fees to be expended in obtaining a judgment against the operator, and shall notify the operator, timber owner and landowner in writing of the amount of the estimate.

2. The county attorney for the county where the contract area is situated or the attorney general shall file an action to enjoin the operator’s violations and to recover the costs of repair and administrative and legal fees and/or to foreclose a lien against the operator as set forth in subsection (2)(e)3 of this section. Legal fees recovered in such an action shall accrue to the county attorney and the attorney general according to the proportionate time which each has expended in obtaining the judgment.

3. A priority lien shall attach to the real and personal property of the operator upon delivery to the operator of a stop work order for the amount not to exceed the estimated costs of repair and reasonable administrative and legal fees to be expended in foreclosing the lien. A written notice of the lien, containing a statement of the estimated costs of repair and reasonable administrative and legal fees, and the names of the parties against whom the lien attached, shall be certified under oath by the department and filed in the office of the county clerk and recorder of the county or counties where the real and personal property of the operator is located and where considered necessary to recover the estimated expenditures. This lien shall be perfected upon filing. This lien shall cease unless legal action is instituted within one (1) year from the date of filing of the notice of the lien.

4. If the operator is a nonresident who does not own real property in Idaho, the department after hearing, may declare the operator’s bond forfeited or commence legal action against the bond to recover the costs of repair and reasonable administrative and legal fees.

(3) An operator dissatisfied with a stop work order shall have thirty (30) days after service thereof to challenge the order, without administrative review thereof, in a court of proper jurisdiction in the county where the alleged damaged land is situated. In such an action the operator shall bear the burden of proving that the cease and repair order and the stop work order are without merit or basis; or shall have ten (10) days after service thereof to request a hearing before the board, to challenge the merit or basis of either or both orders. In such an action, the operator shall bear the burden of proving that the cease and repair order and the stop work order are without merit or basis. If the board affirms the order(s), the operator may within thirty (30) days after the board’s decision, appeal the decision to the district court for the county where the alleged damaged land is situated. The action in the district court shall be limited to appellate review.

(4) If a nonresident operator who does not own real property in the state of Idaho performs forest practices without first submitting a bond in compliance with section 38-1306A, Idaho Code, or if an operator performs forest practices without first submitting notice to the department in compliance with section 38-1306, Idaho Code, the department may immediately commence legal action to enjoin the operator by temporary restraining order or preliminary injunction, and evoke through the county attorney the misdemeanor penalties of section 38-1310, Idaho Code. The testimony under oath of a department employee or forester that a nonresident operator who does not own property in Idaho is performing forest practices without a bond or that an operator is performing forest practices without having first given notice to the department shall constitute prima facie evidence upon which, if unrebutted, a district court shall issue a temporary restraining order or a preliminary injunction against the operator, to cease all forest practices in the contract area until this act has been fully complied with.

(5) Service of a notice or order under this section shall be made upon the operator or his agent, representative or contractor, by personal delivery or certified mail.

History:

[38-1307, added 1980, ch. 64, sec. 4, p. 130; am. 1986, ch. 241, sec. 2, p. 655.]