E. Or. Mining Ass'n v. Dep't of Envtl. Quality

• Decision Date: 14 July 2016
• Docket Number: CC 10C24263, CC 11C19071,CA A156161,SC S063549
• Citation: 360 Or. 10,376 P.3d 288
• Parties: 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. 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.
• Court: Oregon Supreme Court

360 Or. 10

376 P.3d 288

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.

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 10C24263, CC 11C19071

CA A156161

SC S063549

Supreme Court of Oregon.

Submitted on the briefs June 9, 2016.

July 14, 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.

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.

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 challenge 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 setting 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 authority of the Army Corps of Engineers, pursuant to section 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 suction dredge mining is subject to the exclusive authority of the Corps, but also concluding that another part of that discharge remains subject to DEQ's authority under section 402 of the federal statute. Northwest Environmental Defense Center v. EQC , 232 Or.App. 619, 223 P.3d 1071 (2009). This court granted review. Northwest Environmental Defense Center v. EQC , 349 Or. 56, 240 P.3d 1097 (2010).

Before briefing could be completed, however, the five-year 2005 permit expired in 2010. DEQ moved to dismiss the review as moot. This court allowed the motion and dismissed. Northwest Environmental Defense Center v. EQC , 349 Or. 246, 245 P.3d 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 administrative rule. See generally ORS 468B.050(2) (authorizing department to issue general permits either as an administrative 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 permit. 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 (conferring “[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 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 summary judgment. The trial court concluded that, with respect to petitioners' contention that the 2010 permit violated federal 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 P.3d 38 (2015). The court further concluded that petitioners' challenge 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 litigation.” Id.

In the meantime, the legislature enacted a moratorium 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 to which the moratorium would prohibit suction dredge mining 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 questions: (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 P.3d 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 involving 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 dismiss 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, 355 P.3d 866.

In Brumnett v. PSRB , 315 Or. 402, 848 P.2d 1194 (1993), the court explained that cases “in which a court's decision no longer will have a practical effect on or concerning 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 P.3d 548 (2012) (An appeal is moot when a court decision will no longer have a “practical effect on the rights of the parties.”). The rule applies to judicial review proceedings involving challenges to administrative agency action.

Homestyle Direct, LLC v. DHS , 354 Or. 253, 260–61, 311 P.3d 487 (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,...