J. Arlie Bryant, Inc. v. Columbia River Gorge Com'n

• Decision Date: 18 April 1995
• Citation: 889 P.2d 383,132 Or.App. 565
• Parties: J. ARLIE BRYANT, INC., Petitioner, v. COLUMBIA RIVER GORGE COMMISSION, Respondent, and Friends of the Columbia Gorge, Intervenor. CA A75952.
• Court: Oregon Court of Appeals

Page 383

889 P.2d 383

132 Or.App. 565

J. ARLIE BRYANT, INC., Petitioner, v. COLUMBIA RIVER GORGE COMMISSION, Respondent and Friends of the Columbia Gorge, Intervenor.

CA A75952.

Court of Appeals of Oregon.

Argued and Submitted Sept. 28, 1994.

Decided Feb. 1, 1995.

Review Denied April 18, 1995.

Michael E. Haglund, Portland, argued the cause for petitioner. With him on the briefs were Rick T. Haselton and Haglund & Kirtley.

Lawrence Watters, Portland, argued the cause for respondent. With him on the brief were Michael Reynolds and John T. Bagg, Asst. Attys. Gen. Gary Kahn and Reeves, Kahn & Eder, Portland, were on the brief for intervenor.

Before DEITS, P.J., and RIGGS and LEESON, JJ.

DEITS, Presiding Judge.

Petitioner seeks review of the Columbia River Gorge Commission's (commission) order directing a five-year phaseout of petitioner's quarry operation located in the Columbia River Gorge National Scenic Area. We affirm.

Petitioner's principal arguments are that the commission lacked statutory and regulatory authority to order a phaseout of an allegedly nonconforming use. Petitioner acknowledges that it did not raise those issues below, but contends we should reach them nevertheless because they present "a matter of profound public consequence" that "transcend[s] the interests of the present petitioner." Petitioner cites Saxon v. Div. of State Lands, 31 Or.App. 511, 514, 570 P.2d 1197 (1977), where we reached an unpreserved issue on the ground that the "subject matter of the particular case is of substantial public importance." See also Marbet v. Portland Gen. Elect., 277 Or. 447, 561 P.2d 154 (1977). To the extent that Saxon remains authoritative, it supports the proposition that we may reach the unpreserved issues here. But see Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (1991). However, we are not obliged to do so and, for the reasons that follow, we decline to do so.

The line between "substantial public importance" and mere private interest is far from precise. This case--like most--is capable of being characterized in ways that could equally well support the application of either label. Arguably, the case is "about" (1) a single private party's desire to conduct a particular business operation at a particular site, and/or (2) the authority of a governmental body to regulate business operations by members of the public generally in the same way that the commission has regulated petitioner's activity. Although the case may fall within both descriptions, petitioner argues that the second is of such far-reaching significance that we should address the commission's authority to do to others what it did to petitioner, despite the fact that petitioner did not present the issues to the commission itself.

We do not believe, however, that it is necessary or appropriate to address the unpreserved issues in this case. Our refusal to address the issues here does not preclude a future party who may be confronted with proposed commission action of the same or a similar kind from properly raising the questions that petitioner failed to raise before the commission. In other words, the potential questions in the case that might have ramifications that go beyond its own facts can readily be presented in future cases; indeed, they can be raised in any proceeding in which the commission proposes to repeat the action that it took here, and can therefore be resolved before the action becomes final as to any other prospective party. Accordingly, we do not agree with petitioner that the unpreserved issues must be decided now in order to settle any matters that "transcend" petitioner's interests as an individual party.

Our decision not to address an issue that has not been preserved is not a mere technical one. Adherence to preservation requirements is important to the proper performance of appellate review. There are at least two reasons why that is so. First, the requirement that an issue be presented to the lower tribunal in order for it to be raised on appeal serves to prevent error. If the first tribunal is given the opportunity to make a ruling, its ruling may well be correct. Relatedly, it would be a disservice to the economy of the...