Hayes Oyster Co. v. DEQ , 316 Or. App. 186 ( 2021 )

186
Argued and submitted August 20, 2020, affirmed December 8, 2021, petition for
review denied April 7, 2022 (369 Or 507)
HAYES OYSTER COMPANY,
Plaintiff-Appellant,
v.
DEPARTMENT OF ENVIRONMENTAL QUALITY
and Richard Whitman,
in his official capacity as its Director,
Defendants-Respondents.
Tillamook County Circuit Court
17CV19059; A171318
504 P3d 15
The Oregon Department of Environmental Quality (DEQ) issued a total
maximum daily load (TMDL) for the Tillamook Bay Watershed in 2001. Plaintiff
sought judicial review of that TMDL in 2017. On appeal, plaintiff challenges the
trial court’s conclusion that judicial review of a final order under the APA was
unavailable, the trial court’s granting of DEQ’s motion for summary judgment
as to plaintiff’s claim for public nuisance, and the trial court’s granting of DEQ’s
motions for summary judgment on plaintiff’s claims for a declaratory judgment
and direction to compel DEQ to finalize the TMDL. Held: Plaintiff’s claim under
ORS 183.484 of the APA was untimely, as the 60-day period in which to file a peti-
tion for judicial review began in 2001 and had expired. Similarly, plaintiff knew
or should have known of the TMDL and the alleged injury prior to May 2007,
making plaintiff’s claim to compel agency action under ORS 183.490, filed in May
2017, untimely. Finally, the applicable statutes of limitations barred plaintiff’s
remaining claims of public nuisance and for a declaratory judgment. For those
reasons, the trial court did not err in granting summary judgment.
Affirmed.
Mari Garric Trevino, Judge.
Thomas R. Benke argued the cause and filed the briefs
for appellant.
Jona J. Maukonen, Assistant Attorney General, argued
the cause for respondents. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Cite as 316 Or App 186 (2021) 187
DeVORE, P. J.
The Oregon Department of Environmental Quality
(DEQ) issued a total maximum daily load (TMDL) for the
Tillamook Bay Watershed in 2001. A TMDL is the calcula-
tion of the maximum amount of a pollutant allowed to enter
a waterbody so that the waterbody will meet and continue
to meet water quality standards for particular pollutants.
Plaintiff, which owns an oyster harvesting operation in the
Tillamook Bay, sought judicial review of that TMDL in 2017.
After earlier motions failed, the trial court granted sum-
mary judgment for DEQ on several grounds.
Plaintiff appeals, broadly arguing that the fecal
coliform bacteria levels permitted in the TMDL violate the
federal Clean Water Act, 33 USC § 1313, because they were
not calculated with the goal of restoring shellfish harvesting
in certain areas of the Tillamook Bay. We conclude, however,
that plaintiff’s claims are time barred. Accordingly, the trial
court did not err when it denied in part and granted in part
the parties’ first cross-motions for summary judgment and
when it granted DEQ’s second motion for summary judg-
ment. We affirm.
When reviewing a trial court’s grant of summary
judgment, we view the evidence and all reasonable infer-
ences that may be drawn from the evidence in the light most
favorable to the nonmoving party, here, plaintiff. Jones v.
General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997).
Plaintiff’s claims arise from its challenge to bacteria pol-
lution limits set by DEQ in its Tillamook Bay Watershed
TMDL, which, as noted, has been in effect since 2001.
REGULATORY BACKGROUND
TMDLs, such the Tillamook Bay Watershed TMDL,
are a part of a multistep process required by the Clean
Water Act to develop “comprehensive programs for pre-
venting, reducing, or eliminating the pollution of” the
state’s navigable waters. 33 USC § 1252; see also OAR 340-
042-0025 (policy and purposes of TMDLs). The goal of a
TMDL is to achieve previously established “water quality
standards” (WQS), which the state has set to identify the
desired uses for a waterbody and the amount of pollution
188 Hayes Oyster Co. v. DEQ
that would impair those uses. 33 USC § 1313(a) to (c);
40 CFR § 130.3; ORS 468B.048. As noted, a TMDL iden-
tifies the amount of pollution, or load, a waterbody can
have without exceeding the WQS. A TMDL allocates that
load for particular pollutants among natural background
sources, known as nonpoint sources, of a pollutant (load
allocations or LAs) and specific point sources of pollution
(wasteload allocations or WLAs)—with a margin of safety
taking into account any uncertainty. OAR 340-042-0040.
In other words, a TMDL is the maximum amount of a pol-
lutant allowed to enter a waterbody so that the waterbody
will meet and continue to meet water quality standards for
that pollutant. 40 CFR § 130.7(c); EPA, Overview of Total
Maximum Daily Loads (TMDLs) (July 29, 2020), available at
https://www.epa.gov/tmdl/overview-total-maximum-daily-
loads-tmdls#1 [https://perma.cc/4NBG-ABAM] (accessed
September 7, 2021). A TMDL may also include an element
known as a Water Quality Management Plan (WQMP),
which “provides the framework of management strategies
to attain and maintain water quality standards.” OAR 340-
042-0040(l); see also 40 CFR § 130.6. As with WQS, the
state must submit TMDLs to the EPA for approval. 33 USC
§ 1313(d)(2).
PROCEEDINGS
Plaintiff owns about 600 hundred acres of oyster
plats in the Tillamook Bay and has been harvesting oysters
in the area since the 1920s.
The Oregon Department of Agriculture (ODA) reg-
ulates commercial oyster harvesting in the area through
its Tillamook Management Plan for Commercial Shellfish
Harvesting (Management Plan), which is designed to com-
ply with the U.S. Food and Drug Administration’s National
Shellfish Sanitation Program (NSSP) standards for com-
mercial shellfish harvesting. The NSSP sets standards for
fecal coliform bacteria levels in shellfish-harvesting waters.
Fecal coliform bacteria are microscopic organisms in animal
waste that can cause illness in humans. As a part of ODA’s
Management Plan, a portion of plaintiff’s acreage is in a
designated “Upper Bay Prohibited Area,” where commercial
Cite as 316 Or App 186 (2021) 189
oyster harvesting is prohibited year round due to poor
water quality, and another portion of plaintiff’s acreage is
in a “conditionally approved area,” where oyster harvest-
ing is intermittently prohibited depending on water quality
levels.
Consistent with the state’s duties under the Clean
Water Act, 33 USC § 1313(d)(1)(C), in 2001, DEQ established
a TMDL for fecal coliform bacteria in the Tillamook Bay.
When DEQ finalized the Tillamook Bay TMDL, it had not
yet established the regulatory framework that now sets
forth the step-by-step process for issuing TMDLs as orders.
See OAR 340-042-0025 to 340-042-0080 (detailing DEQ’s
process for developing and issuing TMDLs after December
2002). DEQ lacks definitive evidence that it had complied
in 2001 with all steps of the TMDL process that was later
established in 2002—such as having the DEQ director sign
a final version or notifying all necessary parties following
EPA approval of the final TMDL. However, the parties agree
that the draft copy sent to and approved by the EPA in July
2001 is effectively the same, absent formatting changes, as
the Tillamook Bay TMDL that has been in effect since then.
See OAR 340-042-0060 (detailing requirements for issuing
a TMDL).
Plaintiff filed the complaint in this case in May
2017. The core of plaintiff’s challenge to the Tillamook Bay
TMDL is that the WLAs and LAs are “not reasonably calcu-
lated to attain compliance with the water quality standard
for all shellfish growing waters within Tillamook Bay” and
thus violate the state’s duties under the CWA. (Emphasis
in plaintiff’s second amended complaint.) Plaintiff argues
that the load allocations did not, and continue not to, prop-
erly take into account pollution discharges from dairy farms
and thus the WQMP does not include sufficient strategies
to reduce the resulting bacteria’s negative effect on water
quality and oyster harvesting in the bay.
In plaintiff’s second amended complaint, plain-
tiff asserted a claim for public nuisance, arguing that the
TMDL was a “rule” under ORS 183.310(9) and thus subject
to collateral tort claims, and, in the alternative, a claim for
190 Hayes Oyster Co. v. DEQ
judicial review of an agency “order” in an other than con-
tested case under ORS 183.4801 and ORS 183.484.2
Plaintiff and DEQ filed cross-motions for summary
judgment. As to plaintiff’s public nuisance claim, DEQ
argued that the claim was barred by the jurisdictional exclu-
sivity provision of the APA for orders, ORS 183.480(3), and
time-barred by the Oregon Tort Claims Act’s two-year stat-
ute of limitations. As to plaintiff’s APA claim, DEQ agreed
with plaintiff that the TMDL was a “final order,” but argued
that plaintiff failed to file the claim within 60 days of the
order being served on the relevant parties, as required by
ORS 183.484(2). Plaintiff responded that its public nuisance
claim was not subject to APA exclusivity if the court deter-
mined that the TMDL was a “de facto rule change” and that
the 60-day limitation on its APA claim had never begun,
because DEQ presented no definitive evidence that it served
the final TMDL on anyone in 2001.
The trial court denied both parties’ motions for sum-
mary judgment in part and granted DEQ’s motion for sum-
mary judgment as to plaintiff’s nuisance claim. The trial
court determined that the TMDL was not a “final order”
as required to take jurisdiction under the APA because the
2001 TMDL did not seem to fully comport with the process
for adopting a TMDL as established in 2002. That is, the
trial court reasoned that the TMDL was not a “final order”
because it was not “directed to a named person or persons”
as required by the definition of “order”; it was not signed by
DEQ’s director; and DEQ did not have copies of the final
TMDL as mailed to the necessary parties as required by the
agency’s 2002 regulations. Initially, the trial court concluded
that the TMDL remained a “draft” that could not be time-
barred as a “final order” under the APA. Later, because the
trial court concluded that the TMDL was a nonfinal order
and was “clearly not a ‘rule,’ ” the court also concluded that
1
Under ORS 183.480, “any person adversely affected or aggrieved by an
order or any party to an agency proceeding is entitled to judicial review of a final
order * * *.”
2
Under ORS 183.484, “[j]urisdiction for judicial review of orders other than
contested cases is conferred upon the * * * circuit court for the county in which the
petitioner resides.”
Cite as 316 Or App 186 (2021) 191
the APA’s exclusivity provision as to review of orders barred
plaintiff’s public nuisance claim.3
Plaintiff subsequently filed a third amended com-
plaint, asserting a declaratory judgment claim requesting
that the court declare the WLAs invalid on the basis that
plaintiff would suffer substantial and irreparable harm
if interlocutory relief was not granted in accordance with
the APA, ORS 183.480(3).4 Plaintiff also asserted a claim
under ORS 183.490 to compel DEQ to issue a final TMDL
and enforce the LAs established for dairy farms in the 2001
TMDL.5
Both parties again filed cross-motions for summary
judgment. The trial court granted DEQ’s motion for sum-
mary judgment and dismissed both of plaintiff’s claims.
The trial court concluded that it lacked jurisdiction to
review plaintiff’s declaratory judgment claim, as neither the
Declaratory Judgments Act, ORS 28.010 to 28.160, nor the
interlocutory relief provision of the APA, ORS 183.480(3),
provided independent bases for jurisdiction to judicially
review an agency action. The trial court also determined
that plaintiff’s claim to compel DEQ action was time barred
by the 10-year statute of limitations contained in ORS
12.140, because the uncontested facts showed that “[p]lain-
tiff has clearly been aware of its complete inability to use
and reduction in use of some of its Tillamook Bay oyster
3
Because it is not necessary to our decision, we do not address the issue
whether exclusivity applies to an order that was not final.
4
On appeal, DEQ argues that because plaintiff did not reassert its claim
for judicial review under ORS 183.484 in its third amended complaint, plaintiff
abandoned that claim and cannot appeal the trial court’s conclusion that the
TMDL was not a “final order” for purposes of review under ORS 183.484.
Upon review of the record, we do not find this to be an occasion where a party
relinquished a claim because it voluntarily initiated an amendment of its plead-
ings that omitted the claim. See Propp v. Long, 313 Or 218, 222-23, 831 P2d 685(1992) (explaining a superseded complaint). Rather, plaintiff omitted its claim for
judicial review of a final order under ORS 183.484 in an attempt to comply with
the court’s intervening conclusion that the TMDL was not a “final order,” and the
parties and the court appear to have understood it as such. See Olson v. Chuck
et al., 199 Or 90, 98-99, 259 P2d 128 (1953) (evaluating whether a complaint was
superseded in light of the parties’ and trial court’s intentions).
5
Under ORS 183.490, “[t]he court may, upon petition as described in ORS
183.484, compel an agency to act where it has unlawfully refused to act or make
a decision or unreasonably delayed taking action or making a decision.”
192 Hayes Oyster Co. v. DEQ
plats since the early 2000s and that implementation of the
Tillamook Bay TMDL (whether final or not) did not remedy
this situation.”
On appeal, plaintiff challenges the trial court’s con-
clusion that judicial review of a final order under the APA
was unavailable, the trial court’s granting of DEQ’s motion
for summary judgment as to plaintiff’s claim for public
nuisance, and the trial court’s granting of DEQ’s motions
for summary judgment on plaintiff’s claims for a declara-
tory judgment and direction to compel DEQ to finalize the
TMDL. First, plaintiff assigns error to the trial court’s con-
clusion that the Tillamook Bay TMDL is a nonfinal order.
That is, as we understand the argument, plaintiff contends
that the trial court erred in precluding it from pursuing judi-
cial review under the APA as a final order in an other than
contested case. Second, plaintiff argues that the trial court
erred in concluding that the TMDL was also not a “rule”
subject to collateral attack through its claim for public nui-
sance. Third, plaintiff argues that the trial court erred in
granting DEQ’s motion for summary judgment on plaintiff’s
claim for declaratory judgment, asserting that the trial
court did not lack jurisdiction to review the claim. Fourth,
plaintiff argues that the trial court erred in granting DEQ’s
motion for summary judgment on its claim to compel DEQ
action, arguing that the claim was not time-barred by any
statute of limitations.
DEQ agrees with plaintiff initially that the TMDL
should be viewed as a “final order,” but argues that the trial
court correctly precluded review under the APA because
plaintiff did not initiate this action within 60 days of DEQ’s
notice to the necessary parties. DEQ renews its arguments
that the remainder of plaintiff’s claims—for public nuisance,
for declaratory relief, and to compel agency action—are
time-barred by the claims’ respective statutes of limitations.
As to plaintiff’s first assignment of error, we con-
clude that the trial court erred to the extent that it found
a genuine issue of material fact as to whether DEQ deliv-
ered a copy of the final TMDL to the necessary parties.
However, because we determine that there is not a triable
issue as to whether plaintiff failed to file its suit within the
Cite as 316 Or App 186 (2021) 193
APA’s 60-day deadline, we ultimately conclude that the trial
court did not err in precluding plaintiff’s claim under ORS
183.484. Similarly, we conclude that plaintiff’s remaining
claims are also time-barred.
CLAIM UNDER ORS 183.484
In response to plaintiff’s first assignment of error,
DEQ renews its argument, among others, that the trial
court lacked jurisdiction over plaintiff’s petition for judicial
review of the TMDL as a final order in an other than con-
tested case because plaintiff’s claim was untimely. Plaintiff
argues that the 60-day period for bringing claims under
ORS 183.484 never started where DEQ could not produce
definitive evidence that it had ever notified “the parties to a
proceeding of a final order by delivering or mailing a copy of
the order.” ORS 183.470(3).
Petitions for judicial review under ORS 183.484
must be filed within 60 days following the date the order is
served. ORS 183.484(2). An order is considered to be served
when the agency delivers or mails the final order to “the
parties to a proceeding of a final order.” ORS 183.470(3).
Complying with the 60-day deadline is a jurisdictional
requirement for judicial review of an agency action. Ososke
v. DMV, 320 Or 657, 661, 891 P2d 633 (1995); G.A.S.P. v.
Environmental Quality Commission, 201 Or App 362, 366,
118 P3d 831 (2005).
DEQ is entitled to summary judgment on the basis
that plaintiff did not timely file its claim if there is no genu-
ine issue as to whether plaintiff failed to file its claim within
60 days of the final TMDL being served upon a necessary
party. There is not a genuine issue of material fact (triable
issue) where no objectively reasonable juror could return a
verdict for the adverse party on the matter that is the sub-
ject of the motion for summary judgment. Jones, 325 Or at
407-08. The determination of whether there is a genuine
issue of material fact is made on the evidence submitted by
both parties. Flaningam v. Flaningam, 145 Or App 432, 435,
929 P2d 1084 (1996). When evaluating the evidence, uncon-
tradicted testimony cannot be controverted on summary
judgment simply by asserting that it should not be believed.
194 Hayes Oyster Co. v. DEQ
Perry v. Rein, 215 Or App 113, 126, 168 P3d 1163 (2007). In
other words, an adverse party cannot create a genuine issue
of material fact by relying on the “flat disbelief” of presented
testimony to establish an alternate version of what trans-
pired. Tolbert v. First National Bank, 312 Or 485, 823 P2d
965 (1991); Worman v. Columbia County, 223 Or App 223,
233, 195 P3d 414 (2008).
Plaintiff argues that the evidence supports its con-
tention that the 60-day deadline in ORS 183.484 does not
apply in this case for two reasons—first, DEQ could not pres-
ent definitive copies of the final version of the TMDLs it sent
to any necessary party in accordance with ORS 183.470, so
the 60-day period never began; and, second, plaintiff was not
given that notice and, regardless of statutory requirements,
the Due Process Clause of the Fourteenth Amendment to
the United States required that plaintiff itself be formally
notified that the final TMDL had been issued before the
60-day period ended.
Plaintiff’s first argument relates to the testimony
of Eric Nigg, DEQ’s Coordinator for the North Coast Basin,
who was tasked with developing the Tillamook Bay TMDL.
In a deposition, he testified that the department could not
find a copy of the final TMDL it had sent to the parties
involved in creating the TMDL. In a declaration, however,
Nigg stated that agency practice at that time was to send
notice of final TMDLs to all affected point-source permit-
tees under the National Pollutant Discharge Elimination
System (NPDES), nonpoint source designated management
agencies (DMAs) identified in the TMDL, and persons who
provided formal public comment on the draft TMDL. Nigg
was “confident that DEQ sent notice of the final TMDL
order” to each of those parties, despite DEQ’s inability to
locate copies of the letters over 15 years later.
In response, plaintiff submitted a declaration from
its owner, Jesse Hayes, stating that he did not personally
receive a copy of DEQ’s June 2001 Tillamook Bay TMDL
or a letter from DEQ’s director sent to commentors in June
2001.
After evaluating that evidence submitted by both
parties, we determine that there was not a triable issue as
Cite as 316 Or App 186 (2021) 195
to whether DEQ delivered final notice of the TMDL; that is,
the only permissible inference from the evidence presented
was that DEQ did deliver such notice. DEQ had a duty to
“notify the parties to a proceeding of a final order” in order
to trigger the 60-day deadline to petition for judicial review
of the order. ORS 183.484(2); ORS 183.470(3). Although the
“parties” to which DEQ was required to send notice of a
final TMDL were not yet defined by regulation in 2001, as
explained below, plaintiff was not a party.6
The undisputed evidence shows that plaintiff’s
owner knew that the TMDL process was occurring, attended
at least one meeting where a draft of the TMDL was dis-
cussed, and had a copy of the draft TMDL in his possession.
Yet, plaintiff’s owner purposefully chose not to participate
in the TMDL process because he believed that his “voice is
not heard” by DEQ; he chose not to read a copy of the TMDL
because he believed doing so was “not going to help [his]
cause”; and he chose not to submit a formal comment on the
draft TMDL.
Where plaintiff is not an entity directly regulated
by the effluent limits set forth in the TMDL, such as the
listed point sources and DMAs, and did not alert DEQ that
it wanted to be involved in the creation of the TMDL by sub-
mitting a formal comment, it is not a “party” that DEQ was
required to formally notify when it issued the final version
of the TMDL. Therefore, plaintiff’s evidence that its owner
did not receive formal notice of the final issuance of the
TMDL is immaterial—that is, it does not create an issue
as to whether DEQ mailed notice of the final TMDL to the
parties to the proceeding as required by ORS 183.470.
To reach a different conclusion, plaintiff and the
trial court relied on the inference that a reasonable juror
could assume that the agency would have kept a copy of such
notice if it existed, such that the absence of that definitive
6
In 2002, DEQ adopted regulations requiring the department to notify
“all affected NPDES permittees, nonpoint source DMAs identified in the
TMDL and persons who provided formal public comment on the draft TMDL
that the order has been issued and the summary of responses to com-
ments is available” within 20 days after the Director of DEQ signs the order.
OAR 340-042-0060(4).
196 Hayes Oyster Co. v. DEQ
record could indicate that notice of the final TMDL was
never sent to the necessary parties. That inference, how-
ever, is not one that a reasonable juror would be entitled
to make in light of DEQ’s established retention period for
documents relating to the TMDL process. A state agency
is required to “destroy public records which have met the
terms and conditions of their scheduled retention period.”
OAR 166-300-0010. The retention period for TMDL project
records is “15 years after waste load locations [sic] are estab-
lished.” Department of Environmental Quality, Records
Retention Schedule 2008-0009, 118, available at https://
web.archive.org/web/20161224064707/http:/sos.oregon.gov/
archives/Documents/recordsmgmt/sched/schedule-deq.pdf
(accessed October 22, 2021). The retention periods for state
agency records are both a minimum retention and a maxi-
mum retention period. OAR 166-030-0026(2).
In this case, the TMDL was approved by the EPA
in July 2001. Nigg declared, as the individual in charge of
the TMDL process in 2001, that he was “confident” DEQ fol-
lowed its normal process of sending the final version to the
necessary parties. Plaintiff filed its petition for review in
2017. From that evidence, it is not reasonable to infer that
the records relating to the 2001 TMDL would have been
maintained past the point sometime in 2016 when DEQ was
required to destroy such records.
Because it is not reasonable to rely on the absence
of the record to infer that it never existed, the only remain-
ing evidence available to show that DEQ never sent the
required notice would be an inference that Nigg was not
credible when he testified that he was confident that DEQ
had sent such notice. Flat disbelief of presented testimony,
however, is not enough to create a genuine issue of mate-
rial fact. Tolbert, 312 Or at 495; Worman, 223 Or App at
233. On this record, the only evidence regarding whether
DEQ triggered the 60-day period by failing to deliver final
notice to all parties is Nigg’s testimony that DEQ did send
such notice in 2001. As a consequence, the date of plaintiff’s
petition for review in May 2017 was well beyond the 60-day
jurisdictional requirement for review of an agency action in
an other than contested case.
Cite as 316 Or App 186 (2021) 197
As for plaintiff’s second argument, plaintiff’s evi-
dence does not create a triable issue that, under the Due
Process Clause, plaintiff was a party to which DEQ must
show it delivered notice of the final TMDL before the 60-day
timeline expired. The implied right of notice in the Due
Process Clause of the Fourteenth Amendment requires that
an agency’s notice must be “reasonably calculated, under
all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections.” Mullane v. Central Hanover Bank
& Tr. Co., 339 US 306, 314, 70 S Ct 652, 94 L Ed 865 (1950).
Plaintiff relies on that standard from Mullane to argue that,
in addition to DEQ’s statutory duty to send notice, DEQ was
required to notify plaintiff of the final TMDL’s substance to
satisfy plaintiff’s due process rights.
Plaintiff relies on Brown v. City of Salem, 251 Or
150, 444 P2d 936 (1968), but, as Brown points out, Mullane
dealt with the notice that must be given of judicial proceed-
ings between private parties. As with other aspects of due
process, the extent of notice required by the Due Process
Clause varies with the type of proceeding and the type of
interest involved. Mt. Sexton Properties v. Dept. of Rev., 306
Or 465, 479, 760 P2d 1320 (1988). Due process requires the
fullest notice where litigation over a plaintiff’s individual
rights occurs, but due process does not require that every
potentially affected party be notified prior to an agency’s
initiation of procedures established by a legislative scheme.
Id. at 480-82.
As concerns plaintiff, the TMDL process did not
equate to an adjudication over plaintiff’s individual rights
such that DEQ was required to give plaintiff the fullest
notice. The TMDL establishes specific effluent limits and
goals for named point sources, nonpoint sources, and man-
agement agencies. Plaintiff does not assert that it falls into
any of those categories. Instead, plaintiff contends that it
was entitled to notice of the general dilution ratio used to
calculate the effluent limitations for those particular par-
ties because of the potential indirect effects the effluent lim-
its could have on plaintiff’s property. Although DEQ does
not claim to have sent plaintiff formal notice of the final
198 Hayes Oyster Co. v. DEQ
TMDL, as described above, the evidence shows that plain-
tiff was aware that the TMDL process was occurring, was
aware of bacterial contamination issues, was given a draft
of the TMDL, and still chose not to participate more exten-
sively in the TMDL process.
Because plaintiff has not cited to us any decisions
by the United States Supreme Court or the Oregon Supreme
Court that support the conclusion that all potentially
affected persons are constitutionally entitled to individual-
ized notice of the general substance of final orders directed
at other entities, we decline to conclude that DEQ failed
to give plaintiff adequate notice under the above facts. As
concerns plaintiff in this circumstance, due process did not
require more of the agency; due process does not present a
triable issue.
Rejecting both of plaintiff’s arguments, we conclude
that plaintiff’s petition for judicial review was untimely
under ORS 183.484. The trial court lacked authority to
hear the claim. Although that is a different reason than
that on which the trial court relied, the trial court correctly
declined to consider plaintiff’s petition for judicial review of
the TMDL as an order in an other than contested case.7
CLAIM UNDER ORS 183.490
In its fourth assignment, plaintiff argues that the
trial court erred in concluding that any statute of limita-
tions applied to plaintiff’s claim to compel agency action
under ORS 183.490. We review that assignment out of order
because our conclusion that plaintiff’s claim to compel DEQ
agency under ORS 183.490 was time-barred simplifies the
resolution of plaintiff’s second and third assignments of
error. We review whether the trial court applied the correct
source of law for the applicable statute of limitations for
errors of law. Waterfront Pearl Condo. Owners v. Waterfront
Pearl, 313 Or App 74, 77, 494 P3d 367 (2021).
7
Because we conclude that plaintiff’s claim was untimely, we do not reach
the similarly foundational questions as to whether a TMDL has the requisite final-
ity under ORS 183.310(6)(b), a question left open by Hawes v. State of Oregon, 203
Or App 255, 265 n 8, 125 P3d 778 (2005), or whether the TMDL in this case com-
plies with the statutory definition of an “order” as defined in ORS 183.310(6)(a).
Cite as 316 Or App 186 (2021) 199
Plaintiff asserted a claim under ORS 183.490 ask-
ing the court to compel DEQ to issue and enforce a zero-
load allocation for dairy farms in the Tillamook Bay TMDL.
Under ORS 183.490,
“[t]he court may, upon petition as described in ORS 183.484,
compel an agency to act where it has unlawfully refused
to act or make a decision or unreasonably delayed taking
action or making a decision.”
The APA allows a court to compel agency action under ORS
183.490 as a remedy when an “action or suit [is] maintained”
as to the validity of an agency order. ORS 183.480(3).
Oregon law provides that “[a]ctions shall only be
commenced within the periods prescribed in this chapter,
after the cause of action shall have accrued, except where
a different limitation is prescribed by statute.” ORS 12.010.
Where a cause of action is not encompassed by a specific
statute of limitations, the residual statute of limitations pro-
vides that the action must be commenced within 10 years.
ORS 12.140; see also State ex rel Adult and Fam. Ser. v.
Bradley, 58 Or App 663, 670, 650 P2d 91 (1982), aff’d, 295
Or 216, 666 P2d 249 (1983). Where plaintiff’s claim is of the
sort that ORS 183.490 and ORS 183.480(3) contemplate as
an “action,” and plaintiff presents no other characterization,
we are not convinced that we should abandon the general
presumption that the residual statute of limitations applies
to actions for which the legislature has not otherwise pre-
scribed a time limitation.
If a 10-year statute of limitations is held to apply,
plaintiff next argues that the discovery rule should extend
such time. Under a “discovery rule,” the statute of limita-
tions is “deemed to have commenced from the earlier of two
possible events: (1) the date of the plaintiff’s actual discov-
ery of injury; or (2) the date when a person exercising rea-
sonable care should have discovered the injury, including
learning facts that an inquiry would have disclosed.” Rice
v. Rabb, 354 Or 721, 725, 320 P3d 554 (2014) (internal quo-
tations marks omitted). The rule applies an objective stan-
dard, evaluating “how a reasonable person of ordinary pru-
dence would have acted in the same or a similar situation.”
Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278,
200 Hayes Oyster Co. v. DEQ
265 P3d 777 (2011). “The statute of limitations begins to run
when the plaintiff knows or, in the exercise of reasonable
care, should have known facts that would make a reason-
able person aware of a substantial possibility that each of
the elements in a claim exists.” Id. Among those elements,
the limitations period begins to run when the plaintiff dis-
covers, or a reasonable person should have discovered, the
defendant’s causal role. T. R. v. Boy Scouts of America, 344
Or 282, 292, 181 P3d 758, cert den, 555 US 825 (2008).
Because the catch-all statute, ORS 12.140, falls
within the scope of ORS 12.010,8 we regard the discovery
rule applicable. See Rice, 354 Or at 728 (applying discovery
rule to ORS 12.080(4) because that statute falls under the
purview of ORS 12.010). On summary judgment, we exam-
ine the evidence in the light most favorable to plaintiff,
giving plaintiff the benefit of all reasonable inferences, to
determine whether there is a genuine issue of material fact
as to whether “plaintiff knew or should have known the crit-
ical facts at a specified time and did not file suit within the
requisite time thereafter.” T. R., 344 Or at 296.
On this record, plaintiff knew or should have
known of the relevant facts more than 10 years before the
filing of plaintiff’s complaint. Plaintiff’s owner testified that
the farm had been prohibited from harvesting oysters due
to fecal coliform bacteria contamination since at least the
1970s. He agreed that he had attended a meeting hosted
by DEQ to discuss the draft 2001 TMDL and had a draft
TMDL in his possession from a DEQ meeting. DEQ records
showed that “Jess Hayes,” plaintiff’s owner, was also mailed
a draft of the TMDL. Although in possession of a copy of the
entire draft TMDL, plaintiff’s owner testified that he would
not have read the TMDL because “we sat through a meet-
ing and * * * then we get the gist of the meeting and what
they are saying, and we are handed [the draft TMDL]. And
I would look at that, you know, I’m not going to read that. I
don’t need to read that. It’s not going to help my cause.” In
8
ORS 12.010 provides:
“Actions shall only be commenced within the periods prescribed in this
chapter, after the cause of action shall have accrued, except where a different
limitation is prescribed by statute.”
Cite as 316 Or App 186 (2021) 201
the early 2000s plaintiff’s owner filed complaints with DEQ,
ODA, and county commissioners “by telephone, by writing,
and at meetings” regarding manure contamination near the
oyster plats. The restrictions on plaintiff’s oyster harvest-
ing due to fecal coliform bacteria levels were still present in
2017 and led to plaintiff filing the underlying complaints in
this case.
Plaintiff was aware of fecal coliform bacteria levels
and the resulting negative effect on plaintiff’s ability to har-
vest oysters in the Tillamook Bay for decades leading up to
the 2001 Tillamook Bay TMDL. Plaintiff attended at least
one meeting where the draft TMDL was discussed and was
in possession of at least one draft TMDL. DEQ implemented
the Tillamook Bay TMDL in 2001, which remains in effect
today. Plaintiff remained aware of the bacteria pollution
throughout the early 2000s, and its inability to harvest oys-
ters from some of its plats did not change following imple-
mentation of the TMDL. Plaintiff filed the complaint in this
suit in May 2017.
Based on those facts, as confirmed by the testimony
of plaintiff’s owner, the trial court did not err in finding,
even allowing some time for plaintiff to investigate the
TMDL process, that plaintiff knew or should have known
that it had been allegedly injured by DEQ’s implementation
of the TMDL some time prior to May 2007. Therefore, plain-
tiff’s claim to compel agency action under ORS 183.490 is
barred by the residual 10-year statute of limitations.
REMAINING CLAIMS
Plaintiff’s remaining assignments of error are also
time-barred. Plaintiff’s second assignment of error is based
on its public nuisance claim. On appeal, plaintiff does not
present an argument regarding that claim’s compliance
with the two-year statute of limitations under the Oregon
Tort Claims Act. ORS 30.275(9); see Mark v. State Dept. of
Fish and Wildlife, 158 Or App 355, 365, 974 P2d 716, rev den,
329 Or 479 (1999) (applying the OTCA to a public nuisance
claim).9 Plaintiff’s third assignment of error is based on its
9
Plaintiff briefly suggests that its public nuisance claim is based on a
“continuing tort theory.” We reject that argument without further discussion.
202 Hayes Oyster Co. v. DEQ
claim for a declaratory judgment invalidating portions of
the TMDL. The parties do not dispute that the same resid-
ual 10-year statute of limitations applies to that claim. We
therefore reject plaintiff’s second and third assignments of
error without further discussion and affirm the trial court’s
dismissal of those claims because they are time-barred.
CONCLUSION
In sum, DEQ gave due notice of the final TMDL;
whether plaintiff was notified is not a genuine issue; the
60-day period in which to file a petition for judicial review
began in 2001 and has expired, making plaintiff’s claim
under ORS 183.484 untimely. Similarly, plaintiff knew or
should have known of the TMDL and the alleged injury
sometime prior to May 2007, making plaintiff’s claim to
compel agency action under ORS 183.490, filed in May 2017,
untimely. Finally, the applicable statutes of limitations bar
plaintiff’s remaining claims of public nuisance and for a
declaratory judgment. For those reasons, the trial court did
not err in granting summary judgment, and we affirm.
Affirmed.
See Davis v. Bostick, 282 Or 667, 673, 580 P2d 544 (1978) (“nuisance arises by
definition when the conduct constituting the unreasonable invasion of the com-
plainant’s use and enjoyment of land begins”).