Advocates for School Trust Lands v. State of Oregon

668 January 28, 2026 No. 38

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

ADVOCATES FOR SCHOOL TRUST LANDS;

Oregon Advocates for School Trust Lands;

April Diviney, individually and as guardian ad litem for

Bradley Reiter, a minor;

and Robin Ramsey, individually and as guardian ad litem

for Connor Ramsey, a minor,

Plaintiffs-Appellants,

v.

STATE OF OREGON;

State Land Board;

Department of State Lands; Board of Forestry;

Rob Wagner, as Senate president;

Dan Rayfield, as House speaker;

and Calvin Mukumoto, as state forester,

Defendants-Respondents.

Coos County Circuit Court

23CV39056; A184055

Andrew E. Combs, Judge.

Argued and submitted April 11, 2025, Corvallis High

School, Corvallis.

Natalie Scott argued the cause for appellants. Also on

the briefs was Scott Law Group LLP.

Carson L. Whitehead, Assistant Attorney General,

argued the cause for respondents. Also on the brief were

Ellen F. Rosenblum, Attorney General, and Benjamin

Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

JOYCE, J.

Reversed and remanded.

Cite as 346 Or App 668 (2026) 669

670 Advocates for School Trust Lands v. State of Oregon

JOYCE, J.

Plaintiffs, who are two schoolchildren, two parents

of schoolchildren, and two nonprofit organizations, filed a

complaint asserting four claims against the State of Oregon,

the State Land Board, the Department of State Lands, the

Board of Forestry, the President of the Oregon State Senate,

the Speaker of the Oregon House of Representatives, and

the state forester, seeking declaratory and injunctive relief.

Plaintiffs’ first two claims were brought only against the

Senate president and House speaker, and they related to

the legislature’s compliance with Article VIII, section 8,

of the Oregon Constitution, which requires the legislature

to appropriate sufficient funds “to ensure that the state’s

system of public education meets quality goals established

by law” and to “publish a report that either demonstrates

the appropriation is sufficient, or identifies the reasons for

the insufficiency, its extent, and its impact on the ability of

the state’s system of public education to meet those goals.”

Plaintiffs’ third and fourth claims were brought against

all defendants, and they asserted that all defendants were

required by law to manage the common school lands—cer-

tain forest lands that are or were part of or derived from lands

granted by the federal government to the State of Oregon

for the support of public schools—in a way that would max-

imize school funding. See generally Cascadia Wildlands v.

Dept. of State Lands, 365 Or 750, 752-56, 452 P3d 938 (2019)

(setting out history of common school lands). They asserted

that the enactment of a constitutional amendment, two stat-

utes, and various administrative rules violated those duties.

They also alleged Elliot State Forest was sold for less than

its fair market value, violating those same duties.

Defendants moved under ORCP 21 A(1)(a) for dis-

missal of plaintiffs’ claims for lack of subject matter juris-

diction based on a variety of doctrines, which we discuss

below. The trial court agreed that it lacked subject matter

jurisdiction over all of plaintiffs’ claims. As relevant to this

appeal, it concluded that plaintiffs’ first claim was barred

by legislative immunity and that plaintiffs’ third claim was

barred because it was subject to the Oregon Tort Claims Act

(OTCA) and plaintiffs had not pleaded that they had given

Cite as 346 Or App 668 (2026) 671

notice to defendants within 180 days after the challenged

acts, as required under the OTCA.

Based on that reasoning, as well as other reasons

for dismissing plaintiffs’ second and fourth claims, in which

they sought injunctions and which are not at issue on appeal,

the court dismissed the complaint in its entirety with prej-

udice, rejecting plaintiffs’ request to amend the complaint

on the ground that it would have been futile. On appeal,

plaintiffs argue that the court erred by not allowing them

to amend the complaint to plead the first claim against the

state, rather than the Senate president and speaker of the

House. Plaintiffs also contend that the court erred in con-

cluding that their third claim was subject to the OTCA and

that, if it was, they gave timely notice. Finally, plaintiffs

argue that the court should have allowed them to amend

their complaint in other ways.

In response, defendants raise preservation chal-

lenges and defend the trial court’s reasoning. They also

assert several other reasons that, in their view, the trial

court lacked subject matter jurisdiction.

As explained below, we conclude that the trial court

was incorrect that plaintiffs’ proposed amendments to their

first claim would have been futile and therefore abused its

discretion in rejecting their request to amend. As to the third

claim, we conclude that the trial court erred in concluding

that that claim was subject to the OTCA, and, consequently,

in dismissing the third claim. We reverse and remand for

further proceedings.

I. FIRST CLAIM

In their first claim, which was alleged only against

the President of the Oregon State Senate and the Speaker

of the Oregon House of Representatives, plaintiffs sought

declarations that (1) “[b]oth the 2021 and 2023 Legislative

Assemblies failed to appropriate a sum of money sufficient

to ensure, for their respective bienniums, that the state’s

system of K-12 public education would meet the quality

goals established by law”; (2) “[n]either the 2021 nor 2023

Legislative Assembly voted to approve a report that either

demonstrated the appropriation was sufficient or identified

672 Advocates for School Trust Lands v. State of Oregon

the reasons for the insufficiency and its extent as required

by Article VIII, section 8, of the Oregon Constitution”; and

(3) “ORS 171.857 is unconstitutional.”

A. Dismissal of First Claim

Before the trial court, plaintiffs conceded that,

because individual legislators are immune from suit for their

legislative actions, they could not bring any claims against

the Senate president and the speaker of the House. In light

of that concession, the court dismissed the first claim. On

appeal, plaintiffs challenge that dismissal, although they

still concede that the first claim, as pleaded, was barred by

legislative immunity. Given the concession, the court did not

err in dismissing plaintiffs’ first claim.

B. Leave to Amend the Complaint

Next we consider plaintiffs’ assertion that, after dis-

missing plaintiffs’ first claim, the court incorrectly denied

plaintiffs’ request to amend the complaint.1 That question

is controlled by ORCP 21 A(2)(c), which states, “If the court

grants a motion to dismiss, the court may enter judgment in

favor of the moving party or grant leave to file an amended

complaint.” Our review is for abuse of discretion. Eklof v.

Persson, 369 Or 531, 541, 508 P3d 468 (2022); Alfieri v.

Solomon, 358 Or 383, 412, 365 P3d 99 (2015).

After the grant of a motion to dismiss, in choosing

between entering judgment in favor of the moving party or

granting leave to file an amended complaint, the court must

“apply[ ] the same principles that guide the amendment of

pleadings after a responsive pleading has been served.”

Alfieri, 358 Or at 412. “In such a case, ‘leave shall be freely

given when justice so requires.’ ” Id. (quoting ORCP 23 A).

1

We reject without detailed discussion defendants’ assertions that plaintiffs

failed to preserve their argument about amending the complaint or invited any

error. Before the trial court, plaintiffs contended that their first claim, if pleaded

against the state, would not be barred by legislative immunity and that the court

should allow them to amend the complaint to make that change, among others.

Those arguments are the same ones that they make on appeal; their appellate

arguments are preserved. Further, contrary to defendants’ argument, plaintiffs

did not invite any error when they recognized that it was possible that the court

would dismiss outright; while they acknowledged that reality, they argued that

the court should not do that because it would not be consistent with the Oregon

Rules of Civil Procedure.

Cite as 346 Or App 668 (2026) 673

The Supreme Court has “interpreted that standard to mean

that leave to amend should be granted unless allowing the

amendment would be unfairly prejudicial to the nonmoving

party.” Larsen v. Selmet, Inc., 371 Or 457, 466, 537 P3d 920

(2023); see also Eklof, 369 Or at 538 (approving of the par-

ties’ agreement that “the key inquiry driving the exercise of

discretion under ORCP 23 A is the extent of prejudice to the

adverse party”). In this case, defendants have not asserted

that they would be prejudiced by the filing of an amended

complaint.

However, a court is not required to allow an amend-

ment to raise a futile claim. Eklof, 369 Or at 542. “[A] futile

claim is one that could not prevail on the merits due to some

failing in the pleadings or some unavoidable bar or obstacle.”

Id. at 543-44. In this case, the court concluded that the first

claim, as plaintiffs proposed to amend it, would be futile

because it would be barred by legislative immunity even if it

were brought against the state, as plaintiffs proposed.

Article IV, section 1(1), of the Oregon Constitution

vests “[t]he legislative power of the state, except for the ini-

tiative and referendum powers reserved to the people,” “in

a Legislative Assembly, consisting of a Senate and a House

of Representatives.” Article IV, section 9, of the Oregon

Constitution provides several protections for the members

of the Legislative Assembly:

“Senators and Representatives in all cases, except for trea-

son, felony, or breaches of the peace, shall be privileged

from arrest during the session of the Legislative Assembly,

and in going to and returning from the same; and shall

not be subject to any civil process during the session of

the Legislative Assembly, nor during the fifteen days next

before the commencement thereof: Nor shall a member for

words uttered in debate in either house, be questioned in

any other place.”

The Supreme Court has explained that Article IV,

section 9, has two purposes: It “allows legislators to perform

their legislative functions without being interrupted or dis-

tracted by arrest, civil process, or other questioning” and

also “allows legislators to perform their legislative functions

without fear of retribution in the form of ‘be[ing] questioned

674 Advocates for School Trust Lands v. State of Oregon

in any other place’ by either another branch of government

or the public.” State v. Babson, 355 Or 383, 419, 326 P3d 559

(2014) (quoting Art IV, § 9). By its terms and in the Supreme

Court’s description of its purpose, Article IV, section 9, pro-

tects legislators, in whom, as the members of the Legislative

Assembly, the state’s legislative powers are vested.

The trial court in this case concluded that, in

addition to providing personal protections for legislators,

Article IV, section 9, also protects the state from declara-

tory judgment claims about the constitutionality of legisla-

tive actions—specifically, the constitutionality of appropri-

ations (the first declaration that plaintiffs sought) and the

enactment of statutes (the second and third declarations

that plaintiffs sought).

No Oregon case has extended legislative immu-

nity beyond “member[s]” of the Legislative Assembly, Art

IV, § 9—who are the only subjects of the constitutional text

and, according to Article IV, section 1, the holders of the

legislative power of the state. The United States Supreme

Court has held that the immunity conferred by the simi-

larly worded federal speech and debate clause2 extends to

legislative aides, explaining that, in contemporary circum-

stances, “the day-to-day work of such aides is so critical to

the Members’ performance that they must be treated as the

latter’s alter egos.” Gravel v. United States, 408 US 606, 616-

17, 92 S Ct 2614, 33 L Ed 2d 583 (1972). The same is true

of the Chief Counsel to a legislative committee. Eastland v.

U.S. Servicemen’s Fund, 421 US 491, 507, 95 S Ct 1813, 44

L Ed 2d 324 (1975) (“We draw no distinction between the

2

The first clause of Article I, section 6, of the United States Constitution

provides:

“The Senators and Representatives shall receive a Compensation for

their Services, to be ascertained by Law, and paid out of the Treasury of the

United States. They shall in all Cases, except Treason, Felony and Breach of

the Peace, be privileged from Arrest during their Attendance at the Session

of their respective Houses, and in going to and returning from the same; and

for any Speech or Debate in either House, they shall not be questioned in any

other Place.”

Our Supreme Court has explained that, “[a]lthough federal cases decided after

the Oregon Constitution was adopted are not controlling authority in our inter-

pretation of Article IV, section 9, because of the similar wording and similar

origins of the federal Speech or Debate Clause, federal cases provide a useful

perspective.” Babson, 355 Or at 419 n 10.

Cite as 346 Or App 668 (2026) 675

Members and the Chief Counsel.”). As Justice Marshall has

explained in the context of the federal clause, “the protec-

tion of the Speech or Debate Clause is personal. It extends

to Members and their counsel acting in a legislative capac-

ity; it does not preclude judicial review of their decisions in

an appropriate case, whether they take the form of legisla-

tion or a subpoena.” Eastland, 421 US at 515 (Marshall, J.,

concurring).

Below, defendants argued that plaintiffs’ first claim

would be barred by legislative immunity even if it were

brought against the state because the claim was “about

legislative acts, legislative functions, and the Court cannot

issue a ruling on those * * * functions.” As the court sum-

marized defendants’ argument, and as defendants agreed,

“if the only acts are legislative, and if you sue the State of

Oregon * * * and say, well, who did the act? Well, the leg-

islature did the act, so therefore, why wouldn’t legislative

immunity apply to this action of the State of Oregon?”

Under that reasoning, legislative immunity would

preclude any declaration about the constitutionality of any

legislative enactment: Because enactment of any statute

requires an act of the legislature—a legislative function—no

court would be able to “issue a ruling” on the legality of the

legislation or of its passage. That understanding of legisla-

tive immunity is implausible. See generally Pendleton School

Dist. v. State of Oregon, 345 Or 596, 610, 200 P3d 133 (2009)

(“[T]he courts may grant a declaratory judgment that the

legislature failed to fully fund the public school system, if

that is the case.”); id. at 609 (“In this particular case [where

the plaintiffs sought declarations that the legislature has

an obligation, under Article VIII, section 8, to appropriate

sufficient funds to ensure that the public education system

meets quality goals and that, for the 2005-07 biennium, the

legislature had failed to do so], we are mindful of our obliga-

tion to declare what the law is.” (Citing Marbury v. Madison,

5 US (1 Cranch) 137, 177, 2 L Ed 60 (1803) (Marshall, C. J.)

(“It is, emphatically, the province and duty of the judicial

department to say what the law is.”.)).

On appeal, defendants present a somewhat more

nuanced argument, contending that, because ORS 171.857

676 Advocates for School Trust Lands v. State of Oregon

prescribes the creation and contents of a legislative report—

the report required by Article VIII, section 8—the state

should be immune from any challenge to that statute because

it addresses an area particularly within the legislature’s

sphere: It prescribes how the legislature will comply with

its constitutional obligations. We disagree that the subject

of a statute affects whether legislative immunity from an

action challenging its constitutionality should extend to the

state. Rather, we agree with Justice Marshall’s assessment

of the nearly identical wording of the federal Speech and

Debate Clause: The constitutional protection “is personal,”

that is, “[i]t does not preclude judicial review of [legislators’]

decisions in an appropriate case.” Eastland, 421 US at 515

(Marshall, J., concurring). The clause shields legislators

from being questioned about their actions; it does not shield

their actions from courts’ scrutiny. Accord Babson, 355 Or at

419 (explaining that Article IV, section 9, “allows legislators

to perform their legislative functions” without interruption,

distraction, or fear of retribution (emphasis added)).

We therefore disagree with the trial court’s conclu-

sion that plaintiffs’ proposed amendment would be futile.

Plaintiffs’ first claim, if brought against the state, would not

be barred by legislative immunity.

Defendants also advance two other grounds on

which they ask us to affirm if we conclude that the trial

court was mistaken regarding legislative immunity. First,

they contend that we should affirm on the theory that plain-

tiffs’ amended claim will be barred by separation of powers

principles, because a declaration regarding the legislature’s

compliance with its obligations under Article VIII, section

8, would improperly usurp and intrude on the power of the

legislature. But see generally Pendleton School Dist., 345 Or

at 610 (“The courts may grant a declaratory judgment that

the legislature failed to fully fund the public school system

[as required by Article VIII, section 8], if that is the case.”).

That argument was not raised below, and defendants do

not explain why it is appropriate for us to address it for

the first time on appeal.3 Accordingly, we decline to do so.

3

Defendants did raise an argument based on separation of powers below, but

it was specific to plaintiffs’ requests for injunctive relief, which appeared in their

Cite as 346 Or App 668 (2026) 677

See Sherertz v. Brownstein, Rask, 314 Or App 331, 341, 498

P3d 850, 857 (2021), rev den, 369 Or 338 (2022) (discussing

Outdoor Media Dimensions, Inc. v. State of Oregon, 331 Or

634, 659-60, 20 P3d 180 (2001)).

Second, defendants assert that we should affirm on

the alternative ground, which was raised below but which

the trial court did not reach, that plaintiffs lack standing.

Given the procedural posture of the first claim—the trial

court properly dismissed it and, because plaintiffs have not

yet had an opportunity to file an amended pleading, there

is no pleading currently at issue—we conclude that stand-

ing is more appropriately addressed by the trial court after

plaintiffs file an amended complaint.

We conclude that the court abused its discretion in

rejecting plaintiffs’ request to amend their complaint. We

therefore reverse and remand for further proceedings.

II. THIRD CLAIM

We turn to plaintiffs’ third claim, in which they

sought the following declarations:

“(i) The school lands and funds accepted at statehood

as a condition of statehood created an irrevocable trust to

which trust principles apply;

“(ii) Defendants, and each of them, are obliged to man-

age the Common School Fund and Common School Lands

as trustees and fiduciaries under the Oregon Constitution;

“(iii) the Common School Fund shall be separate,

irreducible, and applied solely for the support and mainte-

nance of public schools as provided in Article VIII, section

2, of the originally enacted Oregon Constitution and con-

flicting language in current Article VIII, section 5, (added

by Ballot Measure 1 (1968)) is unconstitutional;

“(iv) the Oregon Legislature [through the Senate pres-

ident and house speaker] breached its statutory duty to the

Common School Fund [by enacting and amending ORS

530.490, and SB 1546 (2022)];

“(v) ORS 530.490 is unconstitutional;

second and fourth claims. The court dismissed those claims, and they are not at

issue on appeal.

678 Advocates for School Trust Lands v. State of Oregon

“(vi) SB 1546 [(2022)] is unconstitutional;

“(vii) Defendants Board of Forestry and the State

Forester breached their statutory duties with respect to the

Common School Fund [by ‘enacting onerous regulations’

restricting harvesting and other activities in the Elliot

State Forest ‘resulting in loss of over $285 million to the

Common School Fund’ from 2001 to 2016 and ‘[b]y failing

and refusing to permit harvesting in greater volume’ on

the common school lands];

“(viii) Defendants State, [Department of State Lands],

and [State Land Board] above, and each of them, breached

their fiduciary duties with respect to the Common School

Fund [by, in summary, not allowing harvesting in the Elliot

State Forest since 2016, paying expenses of the forest from

the common school fund in the absence of income from the

forest, selling the forest for less than its fair market value,

and directing payment for the forest from general funds

and bonds, to the detriment of taxpayers];

“(ix) The action of Defendant [State Land Board] to

approve the sale of the Elliott State Forest to the Elliott

State Research Forest Authority is void and the transfer is

null and void.”

As we understand the trial court’s reasoning, it con-

cluded that the request for those declarations constituted a

claim for a “tort” within the meaning of ORS 30.260(8), and,

for that reason, dismissed the claim because the complaint

did not allege that defendants received timely notice of the

claim. See ORS 30.275 (tort claim notice requirements). The

court did not address plaintiffs’ alternative contention that,

if the claim was a tort claim, they had given timely notice.

And it noted that, in any event, the fourth declaration that

plaintiffs sought, against the Senate president and House

speaker, was barred by legislative immunity.4

On appeal, plaintiffs contend that the court erred

in dismissing their third claim. They do not challenge the

court’s last conclusion, regarding legislative immunity; they

concede that their fourth requested declaration is barred.

4

The court also indicated that, in its view, plaintiffs’ claim depended entirely

on their view that Ballot Measure 1 (1968) was unconstitutional, but that the

complaint did not “adequately state” why it was unconstitutional. Defendants

appear to contend, and we agree, that the court’s comments on that topic did not

amount to an alternative ruling.

Cite as 346 Or App 668 (2026) 679

However, they argue that their third claim is not subject

to the OTCA and, alternatively, if it is, that defendants

received timely notice of their claim. Defendants defend the

trial court’s ruling and contend that, even if the court erred,

we should nonetheless affirm on the alternative basis that

plaintiffs lack standing to bring the third claim.

A. OTCA

ORS 30.260(8) defines “tort” for purposes of the

OTCA. It provides as follows:

“ ‘Tort’ means the breach of a legal duty that is imposed

by law, other than a duty arising from contract or quasi-

contract, the breach of which results in injury to a specific

person or persons for which the law provides a civil right of

action for damages or for a protective remedy.”

The parties’ arguments raise the question of whether, under

a proper understanding of that statute, plaintiffs’ third

claim alleges a tort or torts.5

We begin by noting that the majority of plaintiffs’

requested declarations raise challenges to lawmaking by

public officials. Specifically, plaintiffs seek declarations

of the law regarding the school trust lands and challenge

the enactment of Article VIII, section 5, of the Oregon

Constitution; ORS 530.490; and SB 1546, and they chal-

lenge the State Land Board’s enactment of “onerous” regu-

lations restricting logging in the Elliott State Forest.6

Defendants point out that plaintiffs allege that

defendants are subject to fiduciary duties. In defendants’

view, with which the trial court agreed, that fact makes the

third claim equivalent to a claim for breach of fiduciary duty,

which we have held is a claim subject to the OTCA. Hanggi

v. Hartford Fire Ins. Co., 132 Or App 601, 608, 889 P2d 365

(1995), rev dismissed, 322 Or 573 (1996) (claims alleging

breach of fiduciary duty based on investment-related acts

5

As we will explain, we conclude that the statutory interpretation question

is answered by the applicable case law. No one has proffered, and we therefore

have not considered, legislative history.

6

In the last two requested declarations, plaintiffs challenge some actions

of the State Land Board that may not constitute lawmaking, which, as we will

explain, is significant regarding application of the OTCA. We address those dec-

larations below, 346 Or App at 684 n 9.

680 Advocates for School Trust Lands v. State of Oregon

by employees of state treasury, resulting in losses to a stat-

utory trust fund because of imprudent investments, were

subject to the OTCA).

Although it is possible to characterize the third

claim in this case as being one for breach of fiduciary duty,

we do not find that characterization dispositive. The only

fiduciary duties at issue here are alleged to arise from the

Oregon Constitution and the Oregon Admission Act passed

by Congress in 1859, and plaintiffs allege that defendants

breached those duties by enacting laws and administrative

rules that are allegedly inconsistent with those duties. In

this context, the duties at issue are part of the body of law

governing the lawmaking process that, as public officials and

entities, defendants must follow. The fact the alleged breaches

can be described in a way that mirrors a claim for breach of

fiduciary duty does not seem to us to answer the question.

We conclude that the outcome here is governed by the

Supreme Court’s holding in Comcast of Oregon II, Inc. v. City

of Eugene, 346 Or 238, 250, 209 P3d 800 (2009) (Comcast),

that “a public body’s act of adopting a law or rule in viola-

tion of an applicable procedural or substantive requirement

is not a tort under ORS 30.260(8).” In that case, Comcast

alleged, among other things, a declaratory judgment claim

based on two administrative orders in which the city had

adopted permit-fee schedules for utility work. 346 Or at 241-

42. Comcast sought a declaration that the two orders had

been adopted without compliance with a city code provision

that required consideration of permit fees in other jurisdic-

tions. Id. at 242.

The trial court concluded that all of Comcast’s

claims were subject to the OTCA and granted summary

judgment for the city. Id. at 244. On appeal, we held that the

declaratory judgment claim did not require notice under the

OTCA regardless of whether it met the definition of “tort”

in ORS 30.260(8) because claims “alleging the invalidity of

government enactments” had never been barred by sover-

eign immunity and so, as we understood a previous Supreme

Court case, were not subject to the OTCA at all. Id. at 245

(describing Court of Appeals reasoning); see, e.g., Hanson v.

Mosser, 247 Or 1, 7, 427 P2d 97 (1967), overruled on other

Cite as 346 Or App 668 (2026) 681

grounds by Smith v. Cooper, 256 Or 485, 475 P2d 78 (1970)

(“[A]cts done by officials of the state without authority or in

excess or abuse of authority are done without the sanction

of the state and may be enjoined.”). Thus, we reversed the

trial court’s grant of summary judgment to the city. 346 Or

at 245.

On review, the Supreme Court disagreed with our

understanding of the case we relied on. It held that all claims

that fall within the OTCA’s definition of “tort” are subject to

the OTCA and require notice, regardless of whether they

were barred by sovereign immunity before enactment of the

OTCA. Id. at 246-48.

Then the court turned to whether the declaratory

judgment claim was a “tort” claim within the meaning of

the OTCA. It explained that the city argued that the declar-

atory judgment claim alleged a tort within the meaning of

ORS 30.260(8) “because it asserted a breach of a legal duty

(the adoption of the [disputed] orders in violation of [city

code provisions]); it alleged that Comcast suffered a result-

ing injury (payment of excessive permit fees); and Comcast

sought a protective remedy (a declaratory judgment).” Id. at

249.

The court noted that, when the city adopted the

order at issue,7 which, again, set permit fees for utility work,

it was “engaged in a species of lawmaking.” Id. It explained

that a public body’s lawmaking process is governed by law

from a variety of sources, including the body’s own proce-

dural and substantive rules; procedural and substantive

statutory requirements that govern the body’s lawmaking

authority; and “applicable limits on its authority that derive

from procedural or substantive requirements expressed in

the state and federal constitutions.” Id.

The court explained that “[a] violation of any of

those lawmaking requirements can lead to a legal challenge

in court asserting that the adopted law is invalid in whole

or in part.” Id. In such a legal challenge, “the court’s inquiry

7

The court explained that one of the two orders had been adopted within 180

days of the filing of the complaint, so no tort claim notice was necessary for that

order regardless of whether it fell within the OTCA. Id. at 245. Consequently, it

addressed only one of the orders in its analysis.

682 Advocates for School Trust Lands v. State of Oregon

focuses on whether the public body, during the lawmaking

process, complied with pertinent procedural and substan-

tive requirements for lawmaking, including any limitations

on its legal authority to enact the law in question.” Id.

The court further explained that, notwithstanding

that such a legal challenge can be conceptualized as alleg-

ing that “the public body breached a legal duty imposed by

law”—the duty to make law consistently with the appli-

cable legal and substantive requirements—and that the

act of lawmaking could be a component of a tort claim

that otherwise satisfied the definition in ORS 30.260(8).

Nevertheless, the court held, “a public body’s act of adopt-

ing a law or rule in violation of an applicable procedural or

substantive requirement is not a tort under ORS 30.260(8).”

Id. at 250. “[E]nforcement of an unauthorized law or rule”

may be a tort, but the enactment of a law or rule is not.

Id. Applying that principle, the court explained that, when

Comcast sought a declaration that the two orders were

adopted in violation of the city code, it “did not claim that

the city was liable for a tort” within the meaning of ORS

30.260(8). Id.

Defendants contend that the holding of Comcast

does not apply to this case because of a footnote in the opin-

ion. In announcing its holding, discussed above, the court

said that the reason that the adoption of a law or rule in

violation of a procedural or substantive requirement is not

a tort is “because the law provides no damages remedy, or

other protective remedy, for a public body’s act of adopting a

law or rule allegedly in violation of an applicable procedural

or substantive requirement.” Id. In a footnote attached to a

later summary of its holding, the court provided the follow-

ing comment:

“Our conclusion answers the question presented by this

case, but it may not exhaust the interpretive possibilities

regarding the applicability of ORS 30.260(8) to declaratory

judgment proceedings under ORS 28.010 to 28.160. For

example, we leave for another day the question whether

the legislature, in granting authority to the courts in ORS

28.010 to ‘declare rights, status, and other legal relations,

whether or not further relief is or could be claimed[,]’ has

Cite as 346 Or App 668 (2026) 683

‘provide[d] a civil right of action for damages or for a protec-

tive remedy [ ]’ under ORS 30.260(8).”

Id. at 251 n 13. Defendants contend that that footnote

means that Comcast leaves open the question whether a

claim, like the one at issue here, seeking declarations that

the enactment of laws and rules was invalid is a tort within

the meaning of ORS 30.260(8).

Although the court’s intention in including that foot-

note in Comcast is not entirely clear to us, we do not under-

stand it to vitiate the court’s express holding that “a public

body’s act of adopting a law or rule in violation of an appli-

cable procedural or substantive requirement is not a tort

under ORS 30.260(8).” Id. at 250. It is well established that,

“[i]n construing a statute, [the Supreme Court] is respon-

sible for identifying the correct interpretation, whether or

not asserted by the parties.” Stull v. Hoke, 326 Or 72, 77,

948 P2d 722 (1997). If we understand the footnote to sug-

gest, as defendants contend, that the Uniform Declaratory

Judgments Act creates “ ‘a civil right of action for damages

or for a protective remedy [ ]’ under ORS 30.260(8),” then,

directly to the contrary of the court’s holding in Comcast, “a

public body’s act of adopting a law or rule in violation of an

applicable procedural or substantive requirement” would

be “a tort under ORS 30.260(8)” because the law would pro-

vide a protective remedy—a declaratory judgment—”for a

public body’s act of adopting a law or rule allegedly in vio-

lation of an applicable procedural or substantive require-

ment.” Comcast, 346 Or at 250. Perhaps the court intended

to note that possibility for its own future consideration.

However, until it undertakes that consideration, we under-

stand ourselves to be bound by its express holding that a

public body’s act of adopting a law or rule in violation of a

procedural or substantive requirement is not a tort under

ORS 30.260(8).8 That is at least arguably consistent with

8

It appears to us that the court’s conclusion in Comcast could be supported

in a way somewhat different from the way the court ultimately articulated it—

based on the recognition that a public body’s invalid adoption of a law or rule

does not, in and of itself, cause injury to “a specific person or persons.” That is,

although government officials’ failures to comply with the law may ultimately

affect particular parties in particular ways, government officials’ breach of their

duty to comply with the law may actually “result[ ] in injury to” the public at

large, rather than “a specific person or persons.” ORS 30.260(8).

684 Advocates for School Trust Lands v. State of Oregon

the pre-OTCA situation, in which declaratory-judgment

claims challenging the validity of government officials’ acts

were not barred by sovereign immunity, Hanson, 247 Or at

7, and it avoids the untenable possibility that a statute, for

example, could be unconstitutional and yet unchallengeable

by affected parties through a declaratory-judgment action

because they did not give tort-claim notice within 180 days

after its enactment.

In light of our conclusion that Comcast controls

here, we also disagree with defendants that this case is con-

trolled by Barns v. City of Eugene, 183 Or App 471, 52 P3d

1094 (2002), a Court of Appeals case decided seven years

before the Supreme Court decided Comcast. In Barns, we

held that the term “protective remedy” in ORS 30.260(8)

refers to all equitable relief, including declaratory-judgment

claims, with the result that, “[u]nder ORS 30.275(1) and ORS

30.260(8), a plaintiff bringing a claim against a public body

for either equitable or monetary relief must give timely tort

claim notice.” 183 Or App at 474-75. We made no distinction

between declaratory-judgment claims based on lawmaking

and other declaratory-judgment claims.

If the Supreme Court had agreed with our reasoning

in Barns—that any injury for which a declaratory-judgment

claim is available is one for “which the law provides a civil

right of action * * * for a protective remedy,” ORS 30.260(8)—

then the court would have reached the opposite result in

Comcast. But, as explained above, in Comcast the court held

that “a public body’s act of adopting a law or rule in viola-

tion of an applicable procedural or substantive requirement

is not a tort under ORS 30.260(8).” 346 Or at 250. We thus

conclude that Barns is no longer good law with respect to

declaratory-judgment claims that present challenges to law-

making. The trial court erred in concluding that plaintiffs’

third claim was subject to the OTCA.9

9

As noted above, 346 Or App at 679 n 6, in the last two requested declara-

tions, plaintiffs challenge some actions of the State Land Board that may not

constitute lawmaking. Under these circumstances—where the various requested

declarations go to different topics—we conclude that the inclusion in the same

claim of requests for declarations challenging some state actions that may not

constitute lawmaking does not make the claim, as a whole, into one for a tort.

On remand, unless an amended complaint makes the issue moot, the parties and

Cite as 346 Or App 668 (2026) 685

B. Standing

As an alternative basis for affirmance, defendants

contend that plaintiffs lack standing. As explained below,

we conclude that the schoolchildren plaintiffs have standing

to bring the third claim. In light of that conclusion, we need

not consider whether other plaintiffs also have standing.

MacPherson v. DAS, 340 Or 117, 123-24, 130 P3d 308 (2006)

(“To establish standing under ORS 28.020 in a case in which

there are multiple plaintiffs, only one plaintiff must show

some injury or other impact upon a legally recognized inter-

est beyond an abstract interest in the correct application or

validity of a law.” (Internal quotation marks omitted.)).

In considering a motion to dismiss under ORCP 21,

we, like trial courts, generally assume the truth of the facts

alleged in the complaint and determine whether, as a mat-

ter of law, those facts are sufficient to withstand whatever

defense is raised in the motion. See, e.g., Hood River Valley

v. Board of Cty. Commissioners, 193 Or App 485, 487, 91 P3d

748 (2004) (so explaining). However, for certain defenses,

including lack of subject matter jurisdiction, ORCP 21 A(2)

(b) provides for courts to consider materials outside the

pleadings at the motion-to-dismiss stage:

“If * * * the facts constituting the asserted defenses do not

appear on the face of the pleading and matters outside the

pleading (including affidavits, declarations, and other evi-

dence) are presented to the court, all parties will be given a

reasonable opportunity to present affidavits, declarations,

and other evidence, and the court may determine the exis-

tence or nonexistence of the facts supporting the asserted

defenses or may defer any determination until further dis-

covery or until trial on the merits.”

Under that standard, we have explained that “the trial

court may decide disputed jurisdictional facts based on evi-

dence submitted by the parties.”10 Munson v. Valley Energy

Investment Fund, 264 Or App 679, 695, 333 P3d 1102 (2014).

the court should address whether the actions that are the subject of the last two

requested declarations constitute lawmaking.

10

In 2022, ORCP 21 A was reorganized, resulting in different numbering of

the various provisions of the rule, but the substance of the subsections relevant

to our analysis was not changed. See, e.g., Stone v. Witt, 331 Or App 722, 729 n 5,

548 P3d 497 (2024), aff’d, 374 Or 524, ___ P3d ___ (2025) (noting renumbering).

686 Advocates for School Trust Lands v. State of Oregon

However, “the court may not, at that stage, decide disputed

facts that go to the merits of the underlying claim because

to do so would deprive a party of its entitlement to a trial ‘on

disputed questions of material fact.’ ” Id. (quoting Black v.

Arizala, 337 Or 250, 265, 95 P3d 1109 (2004)).

In this case, in moving to dismiss under ORCP 21

A(1)(a), defendants argued that the court lacked subject mat-

ter jurisdiction: They challenged the sufficiency of plaintiffs’

allegations regarding standing on the third claim and also

contended that plaintiffs would not be able prove standing

on that claim. In response, plaintiffs submitted declarations

asserting facts that, they contended, showed that they have

standing. Defendants did not attempt to contradict plain-

tiffs’ submitted facts; instead, they argued before the trial

court that, as a matter of law, those facts did not support a

conclusion that plaintiffs had standing. As noted above, the

trial court did not reach that issue. On appeal, defendants

contend that we may decide the standing issue on the record

created below and that we should affirm on that alternative

ground. Plaintiffs do not object to our consideration of the

jurisdictional issue, and they assert on the merits that they

have standing.

Under these particular circumstances we con-

clude that it is appropriate for us to address standing as an

alternative basis for affirmance that was raised below. See

Sherertz, 314 Or App at 341 (when a party on appeal made an

alternative argument in the trial court and “the argument is

properly presented again on appeal and raises a question of

law, we may simply resolve it, typically remanding only if it

is necessary for the trial court to make factual findings from

conflicting evidence, exercise discretion, or the like”). The fac-

tual record regarding standing is undisputed—defendants

had the opportunity to, but did not, submit evidence contra-

dicting the declarations that plaintiffs submitted below, and

they have not otherwise challenged the credibility of plain-

tiffs’ declarations. We recognize that ORCP 21 A(2)(b) allows

a trial court discretion in whether to “determine the exis-

tence or nonexistence of the facts supporting the asserted

Consequently, we apply the same standards of review under the reorganized rule

that we did under the older version.

Cite as 346 Or App 668 (2026) 687

defenses [at this stage] or * * * defer any determination until

further discovery or until trial on the merits” and that discre-

tion must be guided by the principle that the court must not

prematurely decide disputed facts that go to the merits of the

underlying claim, Munson, 264 Or App at 695 (citing Black,

337 Or at 265). In many cases, the need for the trial court

to exercise that discretion would counsel against our resolu-

tion of this kind of alternative basis on appeal. However, in

this case, there is no overlap between the jurisdictional facts

regarding standing and the merits of the underlying claims,

no one contends that any discovery would be pertinent, and

no one has identified, nor do we perceive, any reason that

the trial court would defer a determination on standing until

later in the proceedings. Thus, we address whether plaintiffs

have standing to assert the third claim.

To have standing under the Uniform Declaratory

Judgments Act, “a plaintiff must establish that his or her

‘rights, status, or other legal relations’ are ‘affected by’ the

relevant instrument”—in this case, various laws and a

constitutional provision. Morgan v. Sisters School District

#6, 353 Or 189, 194-95, 301 P3d 419 (2013) (quoting ORS

28.020). The Supreme Court has identified three consider-

ations that determine standing under that statute: “First,

the plaintiff must establish that the challenged law causes

‘some injury to or impact upon a legally recognized interest

of the plaintiff’s, beyond an abstract interest in the correct

application or the validity of the law.’ ” MT & M Gaming, Inc.

v. City of Portland, 360 Or 544, 554-55, 383 P3d 800 (2016)

(quoting Morgan, 353 Or at 195 (brackets omitted)). “Any

interest may qualify as long as it is legally recognized,” id.

at 555 (internal quotation marks omitted), and the interest

may be affected indirectly—for example, an economic inter-

est of a property owner may be affected by the result of the

challenged law’s “operation on state and local governments”

rather than their property being directly subject to the law.

Id. at 557 (describing holding of League of Oregon Cities v.

State of Oregon, 334 Or 645, 56 P3d 892 (2002)). Next, “a

plaintiff must show that the claimed injury or impact is real

or probable, not hypothetical or speculative.” Id. at 555. And

finally, “the plaintiff must show that a decision by the court

will in some sense rectify the injury, i.e., that it will have ‘a

688 Advocates for School Trust Lands v. State of Oregon

practical effect on the rights that the plaintiff is seeking to

vindicate.’ ” Id. (quoting Morgan, 353 Or at 197).

Plaintiffs assert that the schoolchildren plaintiffs

have a qualifying interest in adequate funding for schools

under the challenged laws pursuant to statutes that enti-

tle and require them to attend school, ORS 339.010, ORS

339.020, and the constitution, specifically, Article VIII, sec-

tion 8.11 Defendants respond that only school districts, not

schoolchildren, have a legally recognized interest in ade-

quate school funding.

We agree with the schoolchildren plaintiffs that

they have a legally recognized interest in school funding. As

noted, school-age children are statutorily entitled to a public

education—and, absent certain exceptions, are required by

law to attend school. That statutory right and requirement

carries with it an interest in whether, and how, the schools

that children are mandated to attend are funded. To the

extent that there is any uncertainty about the relationship

between school funding and a quality education or the legis-

lature’s duty to provide such funding, Article VIII, section 8,

recognizes that the quality of education provided by the pub-

lic education system is directly related to its level of funding

and requires that the legislature provide adequate funding.

See Or Const, Art VIII, § 8(1) (“The Legislative Assembly

shall appropriate in each biennium a sum of money suffi-

cient to ensure that the state’s system of public education

meets quality goals established by law[.]”)

The fact that the schoolchildren are not directly

affected by the challenged actions—that their interest in an

11

ORS 339.010(1) provides that, with certain exceptions, “all children

between the ages of 6 and 18 years who have not completed the 12th grade are

required to regularly attend a public full-time school during the entire school

term.” ORS 339.020(1) provides that, with certain exceptions, “every person hav-

ing control of a child between the ages of 6 and 18 years who has not completed

the 12th grade is required to send the child to, and maintain the child in, regular

attendance at a public full-time school during the entire school term.” Article

VIII, section 8(1), provides as follows:

“The Legislative Assembly shall appropriate in each biennium a sum of

money sufficient to ensure that the state’s system of public education meets

quality goals established by law, and publish a report that either demon-

strates the appropriation is sufficient, or identifies the reasons for the insuf-

ficiency, its extent, and its impact on the ability of the state’s system of public

education to meet those goals.”

Cite as 346 Or App 668 (2026) 689

adequately funded education flows through school districts,

which receive the funding and then provide education to

students—does not undercut their interest. As in League of

Oregon Cities, the laws in question operate on schools, and

that operation affects the educational interest of the stu-

dents. 334 Or at 660 (plaintiffs had standing where they

showed that the challenged law “would lead to increased

development and how, specifically, that increased develop-

ment would injure them”).12

Next, “a plaintiff must show that the claimed injury

or impact is real or probable, not hypothetical or specula-

tive.” MT & M Gaming, Inc., 360 Or at 555. Defendants

argue that any injury to the schoolchildren from the man-

agement of the common school lands is hypothetical and

speculative. That argument is based on the way each school

district’s funding is calculated. Defendants assert that the

amount provided by the common school fund to each district

has no effect on the total amount of funding for the district,

because the common school fund amount is defined as part

of “local revenue,” ORS 327.011(1)(c), and local revenue is

subtracted from the legislative appropriation apportioned

to each district, ORS 327.008(2)(a).13 Thus, defendants con-

tend, each district will receive the same amount of overall

funding regardless of the amount that the common school

fund provides, because the amount the district receives is

actually set by legislative appropriations, and the common

school fund amount is merely subtracted from that amount.

Defendants’ argument depends on the assumption

that the apportionment calculations are based on a total

school funding amount that does not take into account any

amount provided by the common school fund. It is true that

the State School Fund does not include common school fund

contributions. But that does not mean that the legislature

does not take into account the common school fund contribu-

tions in deciding how to fund public education and therefore

12

Defendants also contend that the schoolchildren plaintiffs lack a legally

recognized interest because of the way school funding is calculated. We address

that argument below, as we find it more relevant to the second and third prongs

of the inquiry.

13

ORS 327.008(2)(a) provides for funding through the State School Fund,

which is part of the general fund and includes legislative appropriations for pub-

lic education funding from a variety of sources. ORS 327.008(1).

690 Advocates for School Trust Lands v. State of Oregon

that those contributions have no effect on school funding. To

the contrary, the legislature’s choices regarding appropria-

tions to the State School Fund must take into consideration

funding amounts from the common school fund.

Article VIII, section 8, requires the legislature to

fund public education adequately to meet its quality goals.

The legislature has acknowledged, in its biennial reports,

that it has not done so. Given that situation, we cannot

assume, as defendants would have us do, that if the com-

mon school fund were to contribute more to overall school

funding, the legislature would decrease its appropriations to

keep overall school funding at the same level. Rather, to com-

ply with the constitutional mandate, if the common school

fund were to contribute more to overall school funding, it

is more reasonable to assume that the legislature would

use that additional amount to close the acknowledged fund-

ing gap. Thus, the fact that common school fund amounts

are ultimately subtracted from each district’s share of the

State School Fund does not mean that amount provided by

the common school fund does not affect the overall amount

available for school funding and thus the amount provided

for the education of the schoolchildren plaintiffs.

Finally, because the common school fund contribu-

tions to education funding affect the amount provided to fund

the schoolchildren plaintiffs’ education, we also conclude that

plaintiffs showed that “a decision by the court will in some

sense rectify the injury, i.e., that it will have ‘a practical effect

on the rights that the plaintiff is seeking to vindicate.’ ” MT

& M Gaming, Inc., 360 Or at 557 (quoting Morgan, 353 Or

at 197). A court’s decision on the law governing the manage-

ment of the common school fund will have practical effects on

the amount that the common school fund contributes to the

schoolchildren plaintiffs’ education, which will have a prac-

tical effect on their educational interest. The schoolchildren

plaintiffs have standing to bring the third claim.

In light of our disposition, we need not address

plaintiffs’ remaining assignments of error, regarding pro-

posed amendments to the complaint; the court may address

those issues on remand.

Reversed and remanded.