Morse v. Oregon Division of State Lands

BRYSON, J.,

concurring.

I concur in the opinion of Justice Holman, including the statutory interpretation of ORS 541.610 et seq. which states the statutory authority of the Oregon Division of State Lands as it applies to the facts of this case. I also agree that the common law "public trust” doctrine has no application under the facts of this case and does not limit "fills” of the kind here present "to those for water-related uses.”

Beginning with Bowlby v. Shively, 22 Or 410, 427, 30 P 154, 160 (1892), this court held

"* * * that when the state of Oregon was admitted into the union, the tide lands became its property and subject to its jurisdiction and disposal; * * * that the state has the right to dispose of them in such manner as she might deem proper, as is frequently done in various ways, and whereby sometimes large areas are reclaimed and occupied by cities, and are put to public and private uses, state control and ownership therein being supreme, subject only to the paramount right of navigation and commerce. The whole question is for the state to determine for itself; it can say to what extent it will preserve its rights of ownership in them or confer them on others. Our state has done that by the legislation * * (Emphasis added.)

No one in this case seriously contends that the "fill” will obstruct "navigation,” and the construction of an adequate airport will certainly aid "commerce.”

The legislature adopted ORS 541.605 to 541.695 and "centralize[d] authority in the Director of the Division of State Lands, and implemented] control of the removal of material from the beds and banks or filling of the waters of this state.” ORS 541.610(1). The Oregon Legislature created and adopted the above statutes and certainly it can change or even repeal these laws.

On the same tone, it is worth stating that the increased flow of litigation from the public sector of law could be diminished if the legislature would state more definitely the policy, framework, and authority for the state agency or commission to perform in. Delegation of authority by the legislature to unelected state officers or employees is an easy way for the legislature to dispose of important but controversial issues. But it does not replace the better way of enacting legislation, which is to specifically set forth the policy of the state and the framework and authority of state agencies rather than leaving the courts to interpret the meaning of legislative enactments.

In a long line of cases exemplified by Van Winkle v. Fred Meyer, Inc., 151 Or 455, 466, 49 P2d 1140 (1935), this court held:

"* * * It is a fundamental principle of constitutional law that in delegating powers to an administrative body the legislature must prescribe some rule of law or fix some standard or guide by which the actions of that body, in administering the law, are to be governed and made to conform. * *

See also City of Portland v. Welch, 154 Or 286, 303, 59 P2d 228 (1936); Wasco County PUD v. Kelly, 171 Or 691, 710, 137 P2d 295 (1943); Demers v. Peterson, 197 Or 466, 469, 254 P2d 213 (1953); General Electric Company v. Wahle, 207 Or 302, 329, 296 P2d 635 (1956).

It is realized that beginning with So. Pacific Co. v. Con. Freightways, 203 Or 657, 666, 281 P2d 693 (1955), this court retreated from the rule laid down in Van Winkle v. Fred Meyer, Inc., supra, and held:

"The mere fact that an administrative authority is granted discretion in the exercise of power conferred upon it by a law does not necessarily demonstrate that the discretion amounts to a use of legislative power. Any power other than a legislative one which the legislature may exercise it may delegate. * *

In Dilger v. School District 24CJ, 222 Or 108, 113, 352 P2d 564 (1960), the court, in a divided opinion, stated:

"* * * [W]here a statute is silent as to the manner in which a governmental agency such as a district school board is to carry out the purpose of the statute, it is permissible in determining the nature of the agency’s functions to look at the character of its function as defined in other statutes. * *

In Warren v. Marion County et al, 222 Or 307, 313, 314, 353 P2d 257 (1960), the court stated:

"There is no constitutional requirement that all delegation of legislative power must be accompanied by a statement of standards circumscribing its exercise. * * *

"* * * [T]he important consideration is not whether the statute delegating the power expresses standards, but whether the procedure established for the exercise of the power furnishes adequate safeguards to those who are affected by the administrative action. * * (Emphasis in original.)

Thus, the court has abetted, or somewhat encouraged, the legislature to adopt "incomplete legislation” and to delegate to agencies or commissions more and more authority to adopt regulations that complete the legislation as they deem appropriate. It is this kind of incomplete legislation that encourages litigants to have the courts say what the legislature did or did not intend by the legislation adopted. Until the legislature reclaims its right and duty to declare the state policy by enacting complete and plainly worded¹ legislation, the courts will be inundated with this type of litigation. I would affirm the conclusion that the permit cannot issue, but I would remand to the Oregon Division of State Lands.

1 “Every act, and joint resolution shall be plainly worded, avoiding as far as practicable the use of technical terms.” Oregon Constitution, Art IV, § 21.