Steamboaters v. Winchester Water Control Dist.

• Decision Date: 19 October 1984
• Docket Number: Nos. 60952,s. 60952
• Citation: 69 Or.App. 596,688 P.2d 92
• Parties: The STEAMBOATERS, an Oregon nonprofit corporation, Petitioner, v. WINCHESTER WATER CONTROL DISTRICT, a quasi-municipal corporation organized under ORS Chapter 553; and the Water Policy Review Board, an Oregon state agency, Respondents. The STEAMBOATERS, an Oregon nonprofit corporation, and Nick Murphy, Petitioners, v. WINCHESTER WATER CONTROL DISTRICT, a quasi-municipal corporation organized under ORS Chapter 553; Oregon Water Resources Department: an Oregon state agency; and James Sexson, Oregon Water Resources Director, Respondents. ; 47469; CA A28451; CA A28680.
• Court: Oregon Court of Appeals

Page 92

688 P.2d 92

69 Or.App. 596

The STEAMBOATERS, an Oregon nonprofit corporation, Petitioner, v. WINCHESTER WATER CONTROL DISTRICT, a quasi-municipal

corporation organized under ORS Chapter 553; and

the Water Policy Review Board, an Oregon

state agency, Respondents.

The STEAMBOATERS, an Oregon nonprofit corporation, and Nick

Murphy, Petitioners, v. WINCHESTER WATER CONTROL DISTRICT, a quasi-municipal

corporation organized under ORS Chapter 553; Oregon Water

Resources Department: an Oregon state agency; and James

Sexson, Oregon Water Resources Director, Respondents.

Nos. 60952; 47469; CA A28451; CA A28680.

Court of Appeals of Oregon.

Argued and Submitted Feb. 17, 1984.

Decided Sept. 5, 1984.

Reconsideration Denied Oct. 19, 1984.

Allen L. Johnson, Eugene, argued the cause for petitioners. With him on the brief was Bill Kloos, Eugene.

Jacob Tanzer, Portland, argued the cause for respondent Winchester Water Control District. With him on the brief was Ball, Janik & Novack, Portland.

Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Michael D. Reynolds, Asst. Atty. Gen., Salem, filed the brief for respondents Oregon Water Resources Department and James Sexson, Oregon Water Resources Director.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Petitioner Steamboaters is an organization of over 400 individuals headquartered in Steamboat, near the headwaters of the North Umpqua River. Its primary purpose is to preserve and enhance the fishery resource and the clean angling waters of the river. It seeks judicial review of both an order of the Water Policy Review Board (WPRB) approving respondent's application for a permit to appropriate water for a hydroelectric project on the North Umpqua and a water appropriation permit issued by the Water Resources Director (WRD) in connection therewith. We dismiss the petition for review of WPRB's decision and affirm the decision of WRD.

In 1980, respondent Winchester Water Control District (District) applied for a permit to construct a hydroelectric project on the North Umpqua. To construct the project, District entered into a contract with Elektra Power Corporation (Elektra), providing that Elektra would finance and construct the project in return for an 18 year lease of the completed hydroelectric facility and 90 percent of the income received from the sale of power to Pacific Power & Light.

Pursuant to ORS 537.170, District's application was referred to WPRB. Subsequently, WPRB held a contested case hearing on the application; Steamboaters was granted party status in that proceeding. Following testimony, WPRB issued an order approving the application. The application was then referred to WRD, who issued a water appropriation permit to District.

As noted, Steamboaters seeks judicial review of both the order of WPRB approving District's application and the permit to appropriate issued by WRD. District ¹ moved to dismiss the petitions, contending that this court lacks jurisdiction. It is District's position that WPRB's order approving the application for the permit is not reviewable by this court, either because (1) ORS 536.560 provides that appeals of WPRB orders are to the circuit court or (2) the order is not a final order under the Administrative Procedures Act (APA). District also contends that the issuance of the permit by WRD is not reviewable here because it is an order in other than a contested case. ORS 183.484(1). Steamboaters, on the other hand, maintains that both decisions are final orders in the same contested case. Resolution of this issue requires examination of the statutory framework under which permits to appropriate water for hydroelectric projects are issued.

Under ORS 537.130, application for a permit to appropriate water is made to WRD. If, as in the present case, the proposal is to develop hydroelectric power in excess of 100 theoretical horsepower, WRD must refer the matter to WPRB for a hearing to determine whether the use would impair or be detrimental to the public interest. ORS 537.176(1). If WPRB determines that the use is acceptable, it enters an order approving the application. After entry of the order, the application is referred to WRD for further proceedings not inconsistent with WPRB's order. ORS 537.170(4). If the use is determined to be unacceptable, WPRB enters an order rejecting the application or requiring its modification.

We turn first to District's contention that WPRB's order is appealable to the circuit court rather than to the Court of Appeals. In support of this contention, District relies on ORS 536.560:

"Any person, public corporation or state agency aggrieved by any order, rule or regulation of the Water Policy Review Board under chapter 707, Oregon Laws 1955, may appeal from the same to the circuit court of the county in which the property affected by such order, rule or regulation or any part of such property is situated."

This statute, however, conflicts with ORS 537.185:

"Judicial review of orders under ORS 537.150 to 537.190 shall be as provided in ORS 183.310 to 183.550 [the Administrative Procedures Act]."

When, in the same statutory scheme, there is both a specific provision and a general one, the latter of which includes matter embraced in the former, and the two cannot be harmonized, the particular provision controls over the general. State v. Pearson, 250 Or. 54, 440 P.2d 229 (1968); League of Women Voters v. Lane Co. Bndry Comm., 32 Or.App. 53, 573 P.2d 1255 (1977), rev. den. 283 Or. 503 (1978). That rule is applicable here. ORS 537.185 specifically provides that orders issued by WPRB pursuant to ORS 537.170--the kind of order under review here--are subject to the appeal provisions of the APA. That section cannot be harmonized with the more general provision of ORS 536.560 which places appellate jurisdiction in the circuit court. We hold that ORS 537.185, the more specific provision, controls appeals of orders issued under ORS 537.170. ²

Having decided that the APA applies, we turn to District's contention that we lack jurisdiction over WPRB's order because it is not a "final order" as defined in that act. Under the APA, only final orders are appealable. ORS 183.480(1). A "final order" is defined as

"Final agency action expressed in writing. Final order does not include any tentative or preliminary declaration or statement that

"(A) Precedes final agency action; or

"(B) Does not preclude further agency consideration of the subject matter of the statement or declaration." ORS 183.310(5)(b).

District argues that, because WPRB's order precedes final agency action, i.e., the issuance of the permit by WRD, it is not a final order but, rather, an intermediate order. Steamboaters, on the other hand, maintains that both WPRB's order and WRD's permit are separate final orders made by two different state agencies.

We find District's position to be the more persuasive. The legislative history indicates that, when the legislature created WPRB and WRD, it intended to create a single agency, the Water Resources Department, to unify management of the state's water resources. See also ORS 536.008. To find now that those entities are separate agencies for purposes of judicial review would frustrate that legislative purpose. We conclude that WPRB's order is an intermediate order in a contested case and, therefore, not directly reviewable by this court. The petition in case A28451 is dismissed.

The last jurisdictional issue we must decide in this case is whether we have jurisdiction to review WRD's issuance of the appropriation permit. District argues that the issuance of the permit is an order in other than a contested case and, thus, must be appealed to the circuit court. ORS 183.484. We disagree. WPRB, pursuant to OAR 690-75-000 to 690-75-045, held a contested case hearing to determine whether District's application should be approved. It issued an intermediate order approving the permit and referred it to WRD, who issued an appropriation permit consistent with WPRB's order. WRD's action was the final order in the contested case, i.e., it was the final action of the Water Resources Department. As such, it is reviewable by this court. ORS 183.482. WPRB's intermediate order, which was incorporated by reference into WRD's permit, is reviewable as part of our review of WRD's final order. ³

Having concluded that we have jurisdiction, we turn to the case on the merits. As its first assignment of error, Steamboaters contends that WPRB should not have processed District's application because District's joint venture arrangement with Elektra exceeded its statutory authority and because District did not comply with ORS 553.310, which requires formation of a subdistrict. We do not decide whether either of these contentions has merit, however, because we conclude that such issues are outside the purview of WPRB. WPRB's purpose is to formulate and apply a comprehensive water resource policy, not to supervise a water district's organizational and fiscal arrangements. In fact, ORS 536.320(1) expressly prohibits WPRB from overseeing a district's internal affairs:

"The Board shall not have power

"(1) To interfere with, supervise or control the internal affairs of any * * * public corporation."

If District is acting outside the scope of its statutory authority by its financing and construction arrangements, Steamboaters' remedies, if any, including declaratory or injunctive relief, will have to be found in a forum other than WPRB.

The above analysis is equally applicable to Steamboaters' second assignment of error, in which it argues that WPRB should have considered whether District violated the Public Contract Law contained in ORS ch. 279. The issue of compliance with chapter 279 is outside WPRB's jurisdiction. The legislature has enacted a statutory scheme for enforcement of the Public Contract Law. See ORS 279.045. WPRB is not part of that scheme; it...