Eastern Oregon Mining Ass'n v. Department of Environmental Quality

10 July 14, 2016 No. 46

IN THE SUPREME COURT OF THE

STATE OF OREGON

EASTERN OREGON MINING ASSOCIATION;

Guy Michael; and Charles Chase,

Petitioners on Review,

v.

DEPARTMENT OF ENVIRONMENTAL QUALITY;

Dick Pederson, in his capacity as Director of

the Department of Environmental Quality; and

Neil Mullane, in his capacity as Administrator of

the Water Quality Division of

the Department of Environmental Quality,

Respondents on Review.

(CC 10C24263)

WALDO MINING DISTRICT,

an unincorporated Association;

Thomas A. Kitchar; and Donald R. Young,

Petitioners on Review,

v.

DEPARTMENT OF ENVIRONMENTAL QUALITY;

Dick Pederson, in his capacity as Director of

the Department of Environmental Quality; and

Neil Mullane, in his capacity as Administrator of

the Water Quality Division of

the Department of Environmental Quality,

Respondents on Review.

(CC 11C19071)

(CC 10C24263, 11C19071; CA A156161; SC S063549)

On review from the Court of Appeals.*

Submitted on the briefs June 9, 2016.

James L. Buchal, Murphy & Buchal LLP, Portland, filed

the briefs for petitioners on review. With him on the briefs

was William P. Ferranti, Portland.

______________

*  Appeal from Marion County Circuit Court, Courtland Geyer, Judge. 273 Or

App 259, 361 P3d 38 (2015).

Cite as 360 Or 10 (2016) 11

Michael A. Casper, Assistant Attorney General, Salem,

filed the briefs for respondents on review. With him on the

briefs were Ellen F. Rosenblum, Attorney General, Benjamin

Gutman, Solicitor General, and Carson Whitehead, Assistant

Attorney General.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, and Brewer, Justices, and Lagesen,

Justice pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

Case Summary: Petitioners, a group of miners, challenged the lawfulness of

an order of the Department of Environmental Quality adopting a five-year per-

mit that regulates suction dredge mining in Oregon waterways. By the time the

challenge reached the Court of Appeals, the five-year permit had expired, and the

agency moved to dismiss the challenge as moot. Petitioners responded that the

challenge is the sort of action that is capable of repetition and likely to evade judi-

cial review under ORS 14.175. The Court of Appeals dismissed the challenge, con-

cluding that while the action was capable of repetition, it was not likely to evade

judicial review in the future. Held: Petitioner’s challenge was likely to evade judi-

cial review in the future for purposes of ORS 14.175 because the general type or

category of that challenge—judicial review of an administrative order in other

than a contested case—often takes five years or substantially longer to litigate.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings.

______________

**  Nakamoto, J., did not participate in the consideration or decision of this

case.

12 Eastern Oregon Mining Association v. DEQ

LANDAU, J.

Petitioners are a group of miners who operate small

suction dredges in Oregon waterways. In this case, they

challenge the lawfulness of an order of the Department of

Environmental Quality (DEQ) adopting a general five-year

permit that regulates that type of mining. By the time the

challenge reached the Court of Appeals, however, the permit

had expired. The agency then moved to dismiss petitioners’

challenge on the ground that it had become moot. The Court

of Appeals agreed and dismissed. Petitioners now seek

review of the dismissal arguing that their case is not moot.

In the alternative, they argue that, if it is moot, their chal-

lenge nevertheless is justiciable under ORS 14.175 because

it is the sort of action that is capable of repetition and likely

to evade judicial review.

We conclude that the petitioners’ challenge to the

now-expired permit is moot. But we agree with petitioners

that it is justiciable under ORS 14.175. We therefore reverse

the decision of the Court of Appeals and remand for further

proceedings.

The relevant facts are not in dispute. Petitioners are

an association of miners, a mining district, and a number

of individual suction dredge miners. Suction dredge mining

entails vacuuming up streambed material through a hose,

passing the material through a sluice box that separates

out any gold, and returning the remaining material back to

the waterway. DEQ asserts that it has authority to regulate

suction dredge mining under state and federal law. Among

other things, DEQ asserts that suction dredge miners must

obtain a National Pollutant Discharge Elimination System

(NPDES) permit, pursuant to section 402 of the federal

Clean Water Act. 33 USC § 1342 (2012).

In 2005, DEQ adopted an administrative rule set-

ting out its authority to regulate suction dredge mining and

the requirements for engaging in that activity. The order

was denominated as a “general permit” and is known as

the “2005 permit.” Both environmentalists and miners—

including petitioners—challenged the lawfulness of the

2005 permit. The miners’ principal contention was that

suction dredge mining is subject to the exclusive regulatory

Cite as 360 Or 10 (2016) 13

authority of the Army Corps of Engineers, pursuant to sec-

tion 404 of the Clean Water Act. 33 USC § 1344 (2012).

The Court of Appeals agreed with the miners in

part, concluding that a portion of the discharge from suc-

tion dredge mining is subject to the exclusive authority of

the Corps, but also concluding that another part of that dis-

charge remains subject to DEQ’s authority under section

402 of the federal statute. Northwest Environmental Defense

Center v. EQC, 232 Or App 619, 223 P3d 1071 (2009). This

court granted review. Northwest Environmental Defense

Center v. EQC, 349 Or 56, 240 P3d 1097 (2010).

Before briefing could be completed, however, the

five-year 2005 permit expired in 2010. DEQ moved to dis-

miss the review as moot. This court allowed the motion and

dismissed. Northwest Environmental Defense Center v. EQC,

349 Or 246, 245 P3d 130 (2010). Meanwhile, DEQ issued a

new five-year general permit in 2010, known as the “2010

permit.” This time, however, DEQ issued the permit as an

order in other than a contested case, not as an adminis-

trative rule. See generally ORS 468B.050(2) (authorizing

department to issue general permits either as an adminis-

trative rule or as an order in other than a contested case).

The 2010 permit contained the same provisions requiring

compliance with section 402 of the federal Clean Water Act.

Petitioners challenged the validity of the 2010 per-

mit. Because the permit had been issued as an order in other

than a contested case, they were required to do so by first

bringing an action in circuit court. ORS 183.484 (confer-

ring “[j]urisdiction for judicial review of orders other than

contested cases” on Marion County Circuit Court and the

circuit court for the county in which the petitioner resides

or maintains a principal business office). The petition

advanced three claims: (1) DEQ lacks authority under the

federal Clean Water Act to regulate suction dredge mining;

(2) DEQ lacks authority under state law to regulate such

mining; and (3) DEQ’s 2010 permit was not supported by

substantial evidence in the record.

The Northwest Environmental Defense Center

(NEDC) also filed a petition for review in circuit court. In

2012, however, NEDC and DEQ settled their differences. At

14 Eastern Oregon Mining Association v. DEQ

that point, petitioners amended their petition to add a claim

for relief under the Uniform Declaratory Judgment Act

seeking a declaration that DEQ lacked authority to enter

into such a settlement agreement.

In 2013, the parties filed cross-motions for sum-

mary judgment. The trial court concluded that, with respect

to petitioners’ contention that the 2010 permit violated fed-

eral law, there remained issues of fact. With respect to all

other issues, though, the court granted DEQ’s motion. After

that, the parties stipulated to entry of judgment in favor of

DEQ on all claims to facilitate appellate review. The trial

court entered judgment in January 2014.

In February 2014, petitioners appealed. They asked

for expedited consideration of their appeal, but the request

was denied. The appeal proceeded through briefing and oral

argument and was taken under advisement. While still

under advisement, the five-year 2010 permit expired. DEQ

issued a new five-year permit, effective through January 1,

2020. The department then moved to dismiss the appeal as

moot. Petitioners argued that the appeal was not moot and

that, in any event, it was capable of repetition and likely to

evade review and so still justiciable under ORS 14.175.

The Court of Appeals concluded that, in light of the

expiration of the 2010 permit, petitioners’ challenge to the

validity of that permit had become moot. Eastern Oregon

Mining Assoc. v. DEQ, 273 Or App 259, 262, 361 P3d 38

(2015). The court further concluded that petitioners’ chal-

lenge was not likely to evade review. The court explained

that, because petitioners could “easily use their work” in

challenging the prior permits, they could “challenge the

2015 permit in the circuit court in more streamlined litiga-

tion.” Id.

In the meantime, the legislature enacted a mora-

torium on suction dredge mining for five years, beginning

January 2, 2016. Or Laws 2013, ch 783. The moratorium,

however, does not apply to all waterways in the state in

which suction dredge mining may occur.1 The precise extent

1

The moratorium applies to “any river and tributary thereof” that contains

essential anadromous salmonid habitat or naturally reproducing populations of

Cite as 360 Or 10 (2016) 15

to which the moratorium would prohibit suction dredge min-

ing in Oregon is not clear. But DEQ and petitioners agree

that the moratorium does not appear to apply to all suction

dredge mining in the state.

Petitioners sought review in this court. This court

allowed review, limiting the issues on review to three ques-

tions: (1) whether the case is now moot; (2) whether, if moot,

the case is nevertheless justiciable under ORS 14.175; and

(3) whether, even if justiciable under ORS 14.175, the case

should be dismissed because of the legislative moratorium.

We address each of those questions in turn.

1.  Is the case moot?

In Couey v. Atkins, 357 Or 460, 520, 355 P3d 866

(2015), we explained that Article VII (Amended) of the

Oregon Constitution does not require the court to dismiss

moot cases, at least not in “public actions or cases involv-

ing matters of public interest.” But we cautioned that merely

because the constitution does not require dismissal in such

cases does not mean that the court will not continue to dis-

miss moot cases as a prudential matter. Id. Existing case

law on the subject of mootness offers guidance concerning

the circumstances under which the court will continue to

dismiss moot claims. Id. at 469.

In Brumnett v. PSRB, 315 Or 402, 848 P2d 1194

(1993), the court explained that cases “in which a court’s

decision no longer will have a practical effect on or concern-

ing the rights of the parties [ ] will be dismissed as moot.”

See also Dept. of Human Services v. G. D. W., 353 Or 25, 32,

292 P3d 548 (2012) (An appeal is moot when a court deci-

sion will no longer have a “practical effect on the rights of

the parties.”). The rule applies to judicial review proceed-

ings involving challenges to administrative agency action.

bull trout, except where populations do not exist because of “a naturally occur-

ring or lawfully placed physical barrier.” Or Laws, ch 783, § 2(1). DEQ estimates

that up to 30 percent of all stream miles fall within the scope of the moratorium.

It acknowledges that the “percentage of those stream miles that are suitable

for suction dredge mining, however, is unclear.” A group of miners challenged

the constitutionality of the moratorium in federal court, but the court concluded

that the law amounts to a reasonable environmental regulation that, precisely

because it does not appear to ban mining completely, is not preempted by federal

law. Bohmker v. State, 2016 WL 1248729, ___ F Supp 3d ___ (D Or 2016).

16 Eastern Oregon Mining Association v. DEQ

Homestyle Direct, LLC v. DHS, 354 Or 253, 260-61, 311 P3d

491 (2013). In this case, petitioners’ principal challenge is to

the validity of the 2010 permit. That permit has expired. A

judicial declaration as to the validity of the 2010 permit can

have no possible practical effect on the rights of the parties

in relation to that permit.

Petitioners contend that, notwithstanding the expi-

ration of the 2010 permit, a ruling on their underlying legal

contentions will affect them. In their view, in issuing the

2010 permit, DEQ adopted an erroneous legal position that

continues to adversely affect them, given that it is the basis

for the more recently adopted 2015 permit. The problem

with the argument is that it ignores the fact that theirs is

a claim for judicial review of a specific agency order—the

2010 permit—not some abstract legal position that DEQ has

taken. Under the Administrative Procedure Act, a challenge

to an order in other than a contested case entitles a court

to “affirm, reverse, or remand the order” that is the subject

of the challenge. ORS 183.484(5)(a) (emphasis added). In

this case, there is no longer any order in effect for a court to

affirm, reverse, or remand.

The same result and reasoning apply to petitioners’

claim under the Uniform Declaratory Judgment Act. Claims

under that statute also are subject to dismissal if a judicial

decision will not have a practical effect on the rights of the

parties. Couey, 357 Or at 470; see also Barcik v. Kubiaczyk,

321 Or 174, 188, 895 P2d 765 (1995) (relief under the

Uniform Declaratory Judgment Act is available “only when

it can affect in the present some rights between the parties”)

(emphasis in original). In this case, petitioners rely on that

statute to challenge the validity of a settlement agreement

concerning the implementation of the 2010 permit. Any judi-

cial decision as to that challenge would not affect the rights

of any of the parties. The permit to which the settlement

agreement otherwise would have applied has expired.

2.  Is the action nevertheless justiciable under ORS

14.175?

ORS 14.175 provides:

“In any action in which a party alleges that an act, pol-

icy or practice of a public body * * * is unconstitutional or is

Cite as 360 Or 10 (2016) 17

otherwise contrary to law, the party may continue to pros-

ecute the action and the court may issue a judgment on

the validity of the challenged act, policy or practice even

though the specific act, policy or practice giving rise to the

action no longer has a practical effect on the party if the

court determines that:

“(1)  The party has standing to commence the action;

“(2)  The act challenged by the party is capable of repe-

tition, or the policy or practice challenged by the party con-

tinues in effect; and

“(3)  The challenged policy or practice, or similar acts,

are likely to evade judicial review in the future.”

The statute thus provides that, even when a judicial deci-

sion would no longer have a practical effect on the rights of

the parties, a court may issue the decision if the parties can

satisfy each of the three stated requirements. Couey, 357 Or

at 477.

DEQ does not contest the first two of the three stat-

utory requirements. The only issue is whether petitioners’

challenge to the five-year 2010 permit is of a sort that is

likely to evade review before the permit expires. The Court

of Appeals concluded that petitioners’ challenge is not likely

to evade review because petitioners could “easily use their

work” in challenging the prior permits and, as a result,

could “challenge the 2015 permit in the circuit court in more

streamlined litigation.” Eastern Oregon Mining Assoc., 273

Or App at 262.

In so concluding, the court erred. As we explained in

Couey, the focus of ORS 14.175(3) is whether the general type

or category of challenge at issue is likely to evade being fully

litigated—including by appellate courts—in the future, not

whether a specific case might avoid becoming moot through

expedited consideration or some other mechanism:

“The fact that there is a possibility that a particular case

could obtain expedited consideration is beside the point.

ORS 14.175 applies to types or categories of cases in

which it is ‘likely’ that such challenges will avoid judicial

review.”

357 Or at 482.

18 Eastern Oregon Mining Association v. DEQ

DEQ argues that, in any event, the type or cate-

gory of case at issue is not the sort that is likely to evade

review. DEQ begins by observing that some federal courts

have adopted a “rule of thumb” that two years is an ade-

quate time to obtain a final judicial decision on a challenge

to a federal administrative agency order. See, e.g., Fund for

Animals, Inc., v. Hogan, 428 F3d 1059, 1064 (DC Cir 2005).

The time it takes to fully litigate a challenge to a federal

administrative agency order or rule, however, may be dif-

ferent from the time it would take to challenge an Oregon

agency’s order or rule under the Oregon Administrative

Procedure Act. Moreover, the “rule of thumb” that DEQ

identifies does not appear to have been uniformly followed

by federal courts, particularly in cases involving challenges

to NPDES permits. See, e.g., Trustees for Alaska v. EPA,

749 F2d 549, 555 (9th Cir 1984) (holding that challenge to

expired five-year NPDES permits originally issued eight

years earlier was capable of repetition, yet evading review);

Montgomery Environmental Coalition v. Costle, 646 F2d 568,

582-83 (DC Cir 1980) (holding that “we have no difficulty”

concluding that challenge to expired five-year NPDES per-

mit was capable of repetition, yet evading review).

DEQ asserts that “a review of this court’s admin-

istrative law cases supports the conclusion that five years

is sufficient time to fully litigate such a case” as this one.

In support, the department cites Broadway Cab LLC

v. Employment Dept., 358 Or 431, 364 P3d 338 (2015);

OR-OSHA v. CBI Services, Inc., 356 Or 577, 341 P3d 701

(2014); and Noble v. Dept. of Fish and Wildlife, 355 Or 435,

326 P3d 589 (2014), each of which took approximately four

years to fully litigate a challenge to an administrative

agency decision.

None of those cases involved a challenge to an order

in other than a contested case, however. In cases involving

challenges to orders in other than a contested case, an addi-

tional layer of judicial review is required over and above

what is ordinarily required for challenges to administra-

tive agency rules or orders. See generally Norden v. Water

Resources Dept., 329 Or 641, 645-46, 996 P2d 958 (2000)

(describing procedure for challenging orders in other than

contested cases). That extra layer of judicial review makes

Cite as 360 Or 10 (2016) 19

a difference. Even a cursory review of cases involving that

process reveals that it is (perhaps unfortunately) quite com-

mon for them to take five years or substantially longer to

fully litigate.2

Moreover, although the particular circumstances of

the case before the court do not determine whether it is the

sort of claim that is likely to evade review, the difficulty of

obtaining timely judicial review of orders in other than a

contested case is nowhere better illustrated than this very

case, which now has become moot not once, but twice, and

even then after the parties requested—and were denied—

expedited consideration. We conclude that petitioners’ chal-

lenge is of the sort that is likely to evade review within the

meaning of ORS 14.175(3).

The fact that the parties may have established

the three requirements for review under ORS 14.175 does

not end the matter. As we explained in Couey, the statute

permits a court to issue a judgment on the validity of the

challenged act or policy, but it does not require a court to

do so. 357 Or at 522. The statute “leaves it to the court to

determine whether it is appropriate to adjudicate an other-

wise moot case under the circumstances of each case.” Id. In

this instance, the Court of Appeals did not reach that issue,

having determined that this is not the sort of case to which

ORS 14.175 even applies. We therefore remand the case for

the appropriate exercise of the discretion that the statute

affords.

DEQ argues that, if we determine that petitioners’

challenge qualifies for judicial review under ORS 14.175,

we should exercise our discretion to limit the scope of that

2

See, e.g., Noble v. Oregon Water Resources Dept., 356 Or 516, 340 P3d 47

(2014) (five years); Gearhart v. PUC, 356 Or 216, 339 P3d 904 (2014) (six years);

Powell v. Bunn, 341 Or 306, 142 P3d 1054 (2006) (six years); Norden, 329 Or at

644 (six years); Mendieta v. Division of State Lands/McKay, 328 Or 331, 987 P2d

510 (1999) (five years); Coalition for Safe Power v. Oregon Public Utility Com’n,

325 Or 447, 939 P2d 1167 (1997) (eight years); Teel Irrigation Dist. v. Water

Resources Dept., 323 Or 663, 919 P2d 1172 (1996) (five years); Pacific Northwest

Bell Telephone Co. v. Eachus, 320 Or 557, 888 P2d 562 (1988) (seven years); Hardy

v. Land Board, 274 Or App 262, 360 P3d 647 (2015) (seven years); Bridgeview

Vineyards, Inc. v. State Land Board, 258 Or App 351, 309 P3d 1103 (2013) (14

years); G.A.S.P. v. Environmental Quality Commission, 198 Or App 182, 108 P3d

95 (2005) (eight years).

20 Eastern Oregon Mining Association v. DEQ

review to the issue whether the issuance of the 2010 permit

violates the federal Clean Water Act. But whether to limit

judicial review is, as DEQ itself notes, a matter of discretion

under ORS 14.175. As in Couey, that discretion is not for a

reviewing court to exercise in the first instance. 357 Or at

522.

3.  Should the case be dismissed because of the enact-

ment of a moratorium?

There remains the issue whether we should even

allow for the exercise of discretion under ORS 14.175

because of the enactment of the legislative moratorium on

suction dredge mining until 2021. As we have noted, how-

ever, the extent of the moratorium is not clear. The parties

agree that, whatever that extent may be, it does not apply

to all waterways in the state where suction dredge mining

may take place. Under the circumstances, we see no reason

to conclude that the enactment of the moratorium precludes

the exercise of discretion to issue a judgment on the claims

at issue in this case.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.