Ashland Drilling, Inc. v. Jackson County

• Decision Date: 28 June 2000
• Citation: 168 Or. App. 624,4 P.3d 748
• Parties: ASHLAND DRILLING, INC., Darryl Baker, Richard Fujas, Elizabeth Fujas and Oregon Ground Water Association, Appellants, v. JACKSON COUNTY, Cliff S. Bentz, John Frewing, Anita Johnson, Nancy Leonard, Michael Jewett, Tyler Hansel, Commissioners of the Oregon Water Resources Commission, acting in their personal capacities, and Martha O. Pagel, Director, acting in her personal capacity, Respondents.
• Court: Oregon Court of Appeals

4 P.3d 748

168 Or. App. 624

ASHLAND DRILLING, INC., Darryl Baker, Richard Fujas, Elizabeth Fujas and Oregon Ground Water Association, Appellants, v. JACKSON COUNTY, Cliff S. Bentz, John Frewing, Anita Johnson, Nancy Leonard, Michael Jewett, Tyler Hansel, Commissioners of the Oregon Water Resources Commission, acting in their personal capacities, and Martha O. Pagel, Director, acting in her personal capacity, Respondents.

(95-5149-E2; CA A101416)

Court of Appeals of Oregon.

Argued and Submitted December 21, 1998.

Decided June 28, 2000.

Garry P. McMurry, Portland, argued the cause and filed the briefs for appellants.

Steven R. Rinkle, Assistant County Counsel, argued the cause for respondent Jackson County. With him on the brief was Arminda J. Brown, Jackson County Counsel.

Denise G. Fjordbeck, Assistant Attorney General, argued the cause for respondents Cliff S. Bentz, John Frewing, Anita Johnson, Nancy Leonard, Michael Jewett, Tyler Hansel, Commissioners of the Oregon Water Resources Commission, and Martha O. Pagel, Director of Oregon Water Resources Department. With her on the brief were Hardy Myers, Attorney General, and Michael G. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

WOLLHEIM, J.

Plaintiffs² appeal a judgment granting defendants' motions for summary judgment. Plaintiffs requested both declaratory and injunctive relief against the Water Resources Commission (state) and Jackson County (county) under the Declaratory Judgment Act, ORS 28.010, and under ORS 28.080. The trial court held that the Oregon Ground Water Act of 1955(Act) did not preempt two Jackson County ordinances and granted summary judgment in favor of the state and county. Plaintiffs appeal, asserting: (1) that the trial court erred in holding that ORS 537.769 does not expressly preempt Jackson County's ordinances; and (2) that the trial court erred in concluding that the ordinances are not inconsistent with, and thereby are not preempted by, the Water Resources Commission's statutory powers and administrative rules on the subject of water wells, well constructors and well testing. Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are disputed questions of material fact and whether the moving parties were entitled to judgment as a matter of law. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). On review of the record, there are no disputed issues of material fact. Because the trial court had no jurisdiction over plaintiffs' claims against the state defendants, we affirm the judgment in favor of the state. On the merits of plaintiffs' appeal against the county, we affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion.

The Act was Oregon's first comprehensive and statewide ground water legislation. ORS 537.505 to ORS 537.795 and ORS 537.992. The Act established a system for the statewide appropriation of ground water by permit and charged the Water Resources Commission and Water Resources Department (collectively, the "commission") with administering that program and regulating ground water use. ORS 537.535. The Act exempts from the permit requirements, that apply to ground water appropriation, uses of ground water for some particular purposes, such as stock watering and other small domestic, commercial and industrial uses. ORS 537.545. The Act provides for the designation of critical ground water areas. ORS 537.730. It authorizes regulation of all wells, including otherwise exempt wells, if they are found by the nature of their "construction, operation or otherwise" to be causing wasteful use of ground water, interfering with other wells or polluting ground or surface water. ORS 537.775. See also ORS 537.545(4) (if located in a ground water management area, "exempt" users must obtain ground water appropriation permit).

This appeal primarily concerns whether the legislature intended to preempt local regulation of activities concerning ground water wells. The inquiry focuses on the Act's "start card" provisions, described in more detail below. Generally, the start card program, ORS 537.747 to ORS 537.795 and ORS 537.992, regulates the construction and inspection of ground water wells and regulates water well constructors. In 1989, the legislature enacted ORS 537.769, which provides:

"The Legislative Assembly finds that ground water protection is a matter of statewide concern. No ordinance, order or regulation shall be adopted by a local government to regulate the inspection of wells, construction of wells or water well constructors subject to regulation by the Water Resources Commission or the Water Resources Department under ORS 537.747 to 537.795 and 537.992."

In 1994, Jackson County adopted ordinance 94-89, codified as sections 00.040, 5.14, 16.020, 20.030, and 280.110(3) of the County's Land Development Ordinance (LDO), and ordinance 94-90, codified in chapter 1880 of the Codified Ordinances of Jackson County (JCC). Those ordinances both address ground water wells. The gravamen of plaintiffs' complaint against the state and the county rests on their assertion that either ORS 537.769 or the commission's statutory powers preempt those ordinances, either in whole or in part. The trial court granted defendants' motions for summary judgment, concluding that ORS 537.769 did not preempt local control over ground water wells.

We begin with the state defendants. Generally, plaintiffs sought a judgment against the state declaring that the commission had failed to implement the start card program by failing to undertake specific enforcement and implementation actions. Plaintiffs also sought a mandatory injunction requiring the commission to implement ORS 537.769. Having found for both the state and county defendants on the preemption issue, the trial court did not address the state's two alternate arguments in its favor, that plaintiff's claims are barred by the exclusive remedy provision of the Administrative Procedures Act (APA), and, in the alternative, that plaintiffs' claims are not otherwise cognizable under the Declaratory Judgment Act because plaintiffs have requested specific relief that is committed to agency discretion by law. Plaintiffs argue that their claims were properly pleaded under the Declaratory Judgment Act, because it provides that the courts "shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed." ORS 28.010. Additionally, plaintiffs argue that their requests for injunctive relief were properly based on ORS 28.080, which provides that "[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper." We conclude that the trial court did not have jurisdiction to consider plaintiffs' claims against the state.

We agree with the state's assertion that the claims should have been brought under the APA. We have held that "when APA review is available, APA jurisdiction is exclusive." Lake County v. State of Oregon, 142 Or.App. 162, 166, 920 P.2d 1115 (1996). That is a two-part requirement.

First, we have held that plaintiffs must exhaust their administrative remedies before they may request judicial relief through the Declaratory Judgment Act. Isom v. P.G.E., 67 Or.App. 97, 102, 677 P.2d 59 (1984),rev. den. 297 Or. 272, 683 P.2d 92 (1984); Bay River v. Envir. Quality Comm., 26 Or.App. 717, 721, 554 P.2d 620, rev. den. 276 Or. 555 (1976). See also Lone Oak Racing, Inc. v. Oregon Racing Comm., 162 Or.App. 111, 122-23, 986 P.2d 596 (1999) (no jurisdiction under Declaratory Judgment Act where plaintiff failed to exhaust administrative remedy under APA). Accordingly, APA review is available where administrative remedies are available. Second, we have held that the APA "establishes a comprehensive pattern for the judicial review of administrative decisions" and provides the "sole and exclusive means of obtaining judicial review." Bay River, 26 Or.App. at 720, 554 P.2d 620. Thus, when there is an administrative remedy, review of that remedy is exclusively under the APA. Lucas v. State of Oregon, 168 Or.App. 593, 597, 4 P.3d 745, 747 (2000).

Accordingly, we must examine whether administrative remedies exist for the relief requested by plaintiffs in this declaratory relief action. In particular, plaintiffs seek a judgment stating that the commission has "failed and refused to implement the `Start Card' program" by: (1) failing to issue water resource statements pursuant to ORS 536.300 explaining its inspection program; (2) failing to advise local jurisdictions to avoid violating ORS 537.769; (3) failing to abate enforcement of the county's ordinances; and (4) fostering the development and adoption of local ordinances in violation of ORS 537.769.

ORS 183.490 provides an administrative remedy for plaintiffs' action. That statute provides that "[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." That statute facially pertains to an agency's nonfeasance in refusing to or delaying an act or in refusing to make or delaying a decision. See Bay River, 26 Or.App. at 722, 723, 554 P.2d 620 (ORS 183.490 is designed to review "an agency's failure to make an order on the merits" and therefore to compel an agency "to proceed with greater alacrity."); accord Mendieta v. Division of State Lands, 148 Or.App. 586, 598, 941 P.2d 582 1997), rev dismissed 328 Or. 331, 987 P.2d 510 (1999). Plaintiffs were required to proceed under ORS 183.490³, and their action is barred by the APA.

Even if ORS 183.490 does not apply to plaintiffs' case, plaintiffs' claims are also not cognizable under the Declaratory Judgment Act. Under the Declaratory Judgment Act, a court can declare what a statute means. See Clatsop County...