Wildfire Map Appeals – Do I Need an Attorney to Appeal? How Much Could This Cost? Will There Be a Class Action Lawsuit We Can Join? And other very good questions.

We are getting a lot of questions, calls, and emails about appeals of the wildfire map. The most frequently asked questions are about who must hire an attorney to appeal, how much this type of appeal might cost, will there be a class action lawsuit, and if OPOA can represent individuals.

Unfortunately, right now, there are a lot more questions than answers related to appealing the wildfire map. To be clear, this is not because attorneys do not care about this issue. It is because this is going to be the single biggest contested case proceeding in Oregon history and it covers very technical areas of law and science.

Frankly, not many lawyers have seen something like this before, and many of us are still searching for a legitimate (and cost-effective way) to help people get any sort of a positive outcome. Any lawyer worth their salt is not going to just take up this issue lightly and certainly doesn’t want to waste people’s time or money.

With that said, we are doing our best to give property owners as much information as we can and help steer people in the right direction. Know, this article summarizes aspects of the law and does not constitute legal advice. To receive legal advice regarding your specific situation or property, you should contact an attorney. See the bottom of this post for a starting-list.

As such, here are our best answers to the questions we have been getting.

Q: Do I need to hire an attorney to fill out and send in my appeal form?

If you own property in your own name, the answer is no – you can file the appeal form yourself. You can certainly hire an attorney to help you, but it isn’t technically required. 

If your property is held by a corporation, trust, LLC, or other entity, the answer is yes, you do need an attorney, but with a limited caveat. We will explain below.

This issue has been confusing to many property owners because of language on the appeal form sent by the Oregon Department of Forestry (ODF). Here’s a picture of the form:

In the “Required Information” section, the form requires you to check one of two boxes.  The first box asks if you intend to retain an attorney. 

The second box asks if you (the property owner) are “an agency, corporation, partnership, limited liability company, trust, government body or unincorporated association?”.  If you are, then the form indicates that “you must be represented by an attorney in the contested case process, unless exempt under statute.”

The “you must be represented by an attorney” statement in the second box is nearly correct – almost, but not quite.

The Oregon Attorney General has created model rules of procedure for Oregon state agencies (like ODF). State agencies are not required to adopt the Attorney General’s model rules, but ODF has adopted them. See Oregon Administrative Rule (OAR) 629-001-0005.

In addition to the model rules, ODF has also adopted additional rules of procedure for the wildfire appeals (see OAR 629-001-0015(9)), but there is nothing in the additional ODF rules that overrides the model rules.

Included within the model rules of procedure is a rule that applies to representation of parties.  OAR 137-003-0550. That rule states:

(2) Corporations, partnerships, limited liability companies, unincorporated associations, trusts and government bodies must be represented by an attorney except as provided in OAR 137-003-0555 or as otherwise authorized by law.

This is consistent with the ODF form. However, there is another part to this rule – subsection (4). That subsection says:

(4) Even if section (2) applies, a request for hearing will not be deemed to be invalid solely because it was not signed by a person licensed to practice law in Oregon as long as an attorney ratifies the request, in writing, within 28 days of the date that the request was received by the agency. The filing date will be determined by the date the hearing request was received, not by the ratification date.

In plain English, if the owner of the property is an agency, corporation, partnership, limited liability company, trust, government body or unincorporated association, then a non-attorney can personally fill out and file the appeal form. However, a licensed Oregon attorney must ratify the request for a hearing within 28 days after the appeal is filed.

Q: After I send in my appeal form, will there be a hearing right away?

Not necessarily. ODF indicates in its contested case FAQ that “ODF will process the appeals in the order received, coordinated by geographic region.” However, OPOA is working with legislators and state officials right now to delay implementation of any hearings to give the 2025 legislature time to reconsider the map and the need for property owners who have appealed to move forward with that appeal.  If the legislature acts to change or withdraw the map, your appeal may become moot, meaning you will no longer need a hearing. 

However, state officials may decide to immediately move ahead with appeals, and the legislature may not act – it is not a sure thing.  Therefore, if you want to appeal, you’ll need to get the form turned in on time to preserve your rights.

Q: How much is filing an appeal and contested case proceeding going to cost?

There is no filing fee to file your appeal. However, if you hire an attorney and have to go through with a contested case proceeding, it could be a very expensive and long process. It could also be inexpensive; it just depends on how far the case goes.  

As noted above, we are working very hard at the legislature and with state officials to slow the appeals process down in order to give the legislature time to change or withdraw the maps.  If that happens, that could greatly reduce the cost, if we can get the legislature to change or withdraw the maps.

If the maps don’t change, an appeal can get very expensive. In general, a contested case proceeding in Oregon is a legal process where an agency determines the rights, duties, or privileges of a party. The process begins with the agency referring the case to the Office of Administrative Hearings, where an Administrative Law Judge (ALJ) conducts the hearing. The parties involved have the right to be represented by counsel, present evidence, and respond to all issues before the presiding officer. As noted above, if your property is owned by a trust, corporation, LLC, etc., you must be represented by counsel.

Parties often challenge agency actions in a contested case proceeding on the grounds that an agency didn’t follow proper procedures, an agency has incorrectly interpreted a provision of law, or that an agency’s decision isn’t supported by substantial evidence.

To successfully win any of these types of arguments here, attorneys will need to spend significant amounts of time discovering evidence and could need to hire experts to help them understand and challenge both the fire science and computer modeling that created and applied the designations.

When speaking with an attorney about this issue, make sure to ask questions about how much this will likely cost if your case does receive a hearing, and you need to put on all the evidence needed to successfully appeal.  

Q: Will there be a class-action lawsuit?

Maybe, but right now we haven’t figured out if that is legally possible. From our understanding, certifying a class action under a state administrative procedures act is generally not permitted unless there is explicit statutory authority allowing such certification. From our understanding, that statute doesn’t exist.

That doesn’t mean that there isn’t going to be class-action or a lawsuit that challenges this whole program on behalf of many people outside of a contested case hearing. We are working with many experienced and talented attorneys looking at this issue and trying to come up with a legitimate way to join property owners together in a single challenge. 

 Q: Can OPOA help people with appeals?

Unfortunately, no. Right now, the OPOA Legal Center only has two attorneys on staff, who also are lobbyists working during the Legislative Session. We do not have the capacity or resources to help people successfully appeal. However, we are working overtime on getting this resolved in the Legislature and with state officials.

We will be working every day this Session to get a bill passed that (1) eliminates the map; and (2) encourages defensible space and home hardening through voluntary and incentive based methods.

Q: Are there any attorneys willing to assist with appeals?

The following list of attorneys and law firms have reached out to OPOA offering their assistance on looking at this issue and appealing wildfire hazard designations. Again, our articles summarize aspects of the law and are intended to help folks understand what is happening at the Legislature and around the state. This post, and any of our other posts, do not constitute legal advice.

To receive legal advice with regard to your specific situation or property, you should contact one of the following law firms promptly. As more attorneys reach out to use saying they can help advise individuals, we will update this list.

VF Law | Phone: 503.684.4111 | Email: OREGON@VF-LAW.COM | Address: 6000 Meadows Rd. Ste.500, Lake Oswego, OR 97035 | Website: https://vf-law.com/

Schroeder Law Offices, P.C. | Phone: (503) 281-41001915 | Email: counsel@water-law.com | NE Cesar Chavez Blvd., Portland, OR 97212 | Website: https://water-law.com/

Dan McKinney at DC LAW | Phone: 541.673.4451 | Email: dmckinney@douglascountylaw.com | Address: 435 SE Kane St., Roseburg, Oregon 97470 | Website: www.douglascountylaw.com

Harker Lepore, LLC | Phone: 503.922.1939 | Email: info@harkerlepore.com | Address: 915 NW 19th Ave, Ste H, Portland, OR 97209 | Website: www.harkerlepore.com

Jordan Ramis | Phone: (503) 598-7070 | Email: ezra.hammer@jordanramis.com Address: PACWEST, 27th Floor, 1211 SW Fifth Avenue, Portland, OR 97204 | Website: https://jordanramis.com/

Ross Day Attorney at Law | Phone: 503.743.6460 | Email: ross@daylawpc.com | Address: 7831 St. Charles Street NE, Keizer, Oregon 97303

If you cannot afford an attorney or would like referals to other attorneys that may be able to help, please contact the Oregon State Bar’s Lawyer Referral Service and “Problem Solvers” hotline. You can find more information on those services here: https://www.osbar.org/public/ris. 

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter. This article summarizes aspects of the law and does not constitute legal advice. To receive legal advice regarding your specific situation or property, please contact an attorney.