Emerald People's Utility Dist. v. Pacificorp

• Decision Date: 07 February 1990
• Citation: 101 Or.App. 48,788 P.2d 1034
• Parties: EMERALD PEOPLE'S UTILITY DISTRICT, Appellant, v. PACIFICORP, dba Pacific Power & Light Company, Respondent, and The Public Utility Commission of Oregon, Intervenor-Respondent. L87-1282; CA A49816. . On Appellant's Petition for Reconsideration
• Court: Oregon Court of Appeals

Page 1034

788 P.2d 1034

101 Or.App. 48

EMERALD PEOPLE'S UTILITY DISTRICT, Appellant, v. PACIFICORP, dba Pacific Power & Light Company, Respondent and The Public Utility Commission of Oregon, Intervenor-Respondent.

L87-1282; CA A49816.

Court of Appeals of Oregon.

On Appellant's Petition for Reconsideration Feb. 7, 1990 Decided March 21, 1990.

Donald R. Stark, John Dudrey, Williams, Fredrickson, Stark & Weisensee, Portland, Arthur C. Johnson, Richard L. Larson, Don Corson and Johnson, Clifton, Larson & Bolin, Eugene, for petition.

Charles F. Hinkle, Gregory R. Mowe and Stoel, Rives, Boley Jones & Gray, Portland, for respondent.

Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., W. Benny Won, Asst. Atty. Gen., and Paul A. Graham, Asst. Atty. Gen., Salem, for intervenor-respondent.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

NEWMAN, Judge.

Plaintiff petitions for Supreme Court review and, thereby, for our reconsideration of our opinion. ORAP 9.15. We allow reconsideration to address one of plaintiff's arguments, and we adhere to our opinion. 100 Or.App. 79, 784 P.2d 1112.

The trial and appeal in this case turned largely on defendant's presentation of economic evidence and plaintiff's contentions that the economic effects of its taking decision fell outside the range of judicial inquiry. Plaintiff asserts that our interpretation of ORS 35.235(2) establishes a general rule that economic considerations are the sole determinant of whether a condemnation is "most compatible with the greatest public good and least private injury." Plaintiff maintains that, to pass the statutory test as we have construed it, a proposed condemnation

"must yield a public benefit that exceeds, in dollar terms, the harm, in dollar terms, to the condemnee. * * * [E]conomics may be a relevant factor, but nothing in the statute, much less its legislative history, even suggests that economics must be the only factor, as the Court of Appeals said."

We did not suggest that only economic considerations can ever be relevant to the determination of compatibility with the greatest public good and the least private injury. We did not say that non-economic factors could never be considered or could never outweigh the harmful economic effects of a proposed taking. Rather, we responded to plaintiff's arguments that the courts can never consider economic factors in applying the statutory test. We also rejected the specific non-economic factor that plaintiff asserted...