Eastern Oregon Mining Association v. DEQ

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.