Hay v. Oregon Dept. of Transp.

• Decision Date: 20 May 1986
• Citation: 301 Or. 129,719 P.2d 860
• Parties: William HAY and Georgianna Hay, Petitioners on review, v. OREGON DEPARTMENT OF TRANSPORTATION, Oregon Transportation Commission, Park and Recreation Division of the Oregon Department of Transportation, State Land Board, and Division of State Lands, Respondents on review. CC 83-394/CA A32892; CA A32904/SC S32179. . *
• Court: Oregon Supreme Court

Page 860

719 P.2d 860

301 Or. 129

William HAY and Georgianna Hay, Petitioners on review, v. OREGON DEPARTMENT OF TRANSPORTATION, Oregon Transportation Commission, Park and Recreation Division of the Oregon Department of Transportation, State Land Board, and Division of State Lands, Respondents on review.

CC 83-394/CA A32892; CA A32904/SC S32179.

Supreme Court of Oregon In Banc. ^*

Argued and Submitted March 12, 1986.

Decided May 20, 1986.

William Dickas, of Kell, Alterman & Runstein, Portland, argued the cause and filed the petition for petitioners on review.

Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondents on review.

JONES, Justice.

This case arises from plaintiffs' challenge to the Department of Transportation's statutory authorization of the use of the beach in front of their Cannon Beach motel as a parking area. Three issues are presented: (1) Is our review of a Court of Appeals decision that upheld the validity of a rule rendered moot when an agency promulgated a new rule superseding the challenged rule? (2) May a circuit court determine the validity of a rule in the course of a civil action for nuisance and trespass when the claims arise from a state agency's actions pursuant to a rule? (3) If the circuit court may determine a rule's validity, was the rule at issue in fact valid, thereby justifying defendant agencies' motion for judgment on the pleadings?

Starting September 21, 1979, defendant agencies, the Oregon Department of Transportation (Department), the Oregon Transportation Commission, the State Land Board, and the Division of State Lands, acting pursuant to OAR 736-24-005, closed Cannon Beach to vehicular traffic. Before the Department's amendment in 1979, the former rule permitted unrestricted motor vehicle traffic on the ocean beach now at issue. The rule as amended reserved 1,300 feet of dry-sand beach ¹ for public parking from sunrise to sundown from March 2 to September 30 annually. ORS 390.668(1) authorizes the Department to

" * * * establish zones on the ocean shore where travel by motor vehicles or landing of any aircraft except for an emergency shall be restricted or prohibited. After the establishment of a zone and the erection of signs or markers thereon, no such use shall be made of such areas except in conformity with the rules of the department."

Plaintiffs, William and Georgianna Hay, own the New Surfview Motel and the adjacent dry-sand area on Cannon Beach. The area reserved for parking includes dry-sand beach owned by plaintiffs. On May 5, 1983, plaintiffs filed a complaint in Clatsop County Circuit Court against the agencies, contending that the use of plaintiffs' beach as a parking area was both a trespass and a nuisance, thereby reducing the value of their property.

The agencies filed a joint motion for partial summary judgment on liability under ORCP 47 and for judgment on the pleadings under ORCP 21 B. The motion for partial summary judgment contended that (1) plaintiffs' complaint is a collateral attack on a rule and such an attack must be brought in the Court of Appeals pursuant to ORS 183.400(1); (2) plaintiffs failed to exhaust their administrative remedies; (3) plaintiffs' claims have been decided against them in State ex rel Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969); (4) plaintiffs failed to notify the state of their claim within 180 days pursuant to ORS 30.275(2)(b); and (5) plaintiffs did not commence the action within the proper statute of limitations. The agencies' ORCP 21 B. motion contended that plaintiffs' pleadings failed to state a claim in trespass or nuisance.

On July 24, 1984, the circuit court granted the agencies' joint motion "on all grounds." Plaintiffs appealed the trial court's judgment and filed a separate petition with the Court of Appeals for review of OAR 736-24-005(2)(d)(A) pursuant to ORS 183.400(1). ² The Court of Appeals upheld the validity of the rule, 75 Or.App. 119, 705 P.2d 240 (1985), and it affirmed without opinion the circuit court decision, 75 Or.App. 125, 705 P.2d 242 (1985). We allowed review, consolidating the two Court of Appeals decisions.

I. Is plaintiffs' challenge to OAR 736-24-005(2)(d)(A) moot?

Pursuant to ORS 183.400(1), plaintiffs challenge OAR 736-24-005(2)(d), which prohibited motor vehicle travel on Cannon Beach, but allowed vehicle parking "[b]etween sunrise and sunset from Ecola Court in Cannon Beach southerly 1300 feet * * * March 1 to September 30." Plaintiffs contend that the rule exceeded the Department's statutory authority. The Department contends that ORS 390.660 ³ and 390.668(1) authorized it to promulgate the rule.

While the Court of Appeals decision was pending, the Department revised the rule effective March 29, 1985, so as to allow parking on the same stretch of beach from May 25, 1985, through September 2, 1985. This rule, however, has expired by its own terms, and the Department has not enacted a similar rule. Currently, the Department does not allow parking in the disputed area. Therefore, before considering the rule's validity, we must determine whether the rule's expiration renders the challenge to the rule moot.

Plaintiffs contend that the challenge is not moot because the Department "remains free to re-adopt the rule any time it chooses." Defendants argue that "it may become necessary * * * to pass similar rules involving this or other portions of the beach," and that this court should address the controversy because it is "capable of repetition, yet evading review." Plaintiffs assert that even if the challenge is moot, this court "has discretion to address questions of public importance when there is a likelihood that they will be raised again."

The parties rely on this court's statement in Perry v. Oregon Liquor Commission, 180 Or. 495, 498-99, 177 P.2d 406 (1947), that "[w]here the [moot] question is one involving the public welfare, and there is a likelihood of it being raised again in the future, a court in the exercise of its discretion may decide it for the guidance of an official administrative agency." Recent cases have cast doubt on the validity of the Perry holding. See, e.g., State ex rel Oregonian Publishing Co. v. Sams, 298 Or. 329, 332-33, 692 P.2d 116 (1984). Assuming that we do have the authority to decide moot questions, we decline to exercise it in this case. The challenge to the expired rule is dismissed as moot.

II. May a circuit court examine the validity of a rule in a civil action?

In the circuit court, plaintiffs claim damages stemming from the agencies' alleged nuisance or trespass, and our dismissal of the direct challenge to the rule does not render plaintiffs' claim for damages moot. If the rule, while in effect, was invalid, the parking would not have been legally authorized and could constitute trespass or nuisance.

The agencies moved for summary judgment on liability, contending that plaintiffs' trespass and nuisance claims collaterally attacked the validity of OAR 736-24-005. The agencies contend that "[g]iven the fact that defendants' conduct with respect to the dry-sand area of plaintiffs' beach involved only the promulgation and enforcement of an administrative rule, an action for trespass or nuisance would necessarily involve an implicit determination concerning the validity of the rule." The agencies further contend that plaintiffs may challenge the rule only in the Court of Appeals pursuant to ORS 183.400(1), and that plaintiffs should ask for a stay from the circuit court, petition the Court of Appeals for a decision on the validity of the rule, and then proceed to a trial on the merits in circuit court.

Plaintiffs respond that the rule's validity is irrelevant to their claims because they "seek a determination that the combination of the regulations by which all cars are prohibited everywhere else on Cannon Beach and are funneled only onto plaintiffs' beach operates, in practice, as a trespass and as an unreasonable nuisance." Plaintiffs argue that if this court accepts the agencies' position, "there results an irrational anomaly: circuit courts in Oregon may continue to inquire, where necessary, into the authority and operation of statutes; in a proper case, they may determine that a particular statute violates a constitutional right or exceeds constitutional authority; they may not, however, do the same with agency regulations." Thus, the parties' contentions present us with a twofold issue: first, may plaintiffs' suit be characterized as a collateral attack on the validity of OAR 736-24-005; and, second, if it is a collateral attack on the rule, may the circuit court hear such a challenge?

Plaintiffs challenge the rule's validity by alleging that the Department, while acting pursuant to the rule, caused a trespass or nuisance. A plaintiff claiming trespass must show that the defendant invaded the exclusive possession of his property, Martin v. Union Pacific Railroad, 256 Or. 563, 565, 474 P.2d 739 (1970), and a plaintiff claiming private nuisance must show that the defendant unreasonably and substantially interfered with the use and enjoyment of his property, Jewett v. Deerhorn Enterprises, Inc., 281 Or. 469, 473, 575 P.2d 164 (1978). A plaintiff claiming public nuisance must show "an unreasonable interference with a right which is common to members of the public generally." Raymond v. Southern Pacific Co., 259 Or. 629, 634, 488 P.2d 460 (1971). The injury must be an injury beyond that suffered by the public. Id.

In this case, the rule's validity would determine whether the parking was privileged because of legal authorization for the agencies' acts or because the agencies authorized a use that otherwise would constitute a public or private nuisance. Under the Restatement (Second) of Torts § 211 (1965), an entry pursuant to legislative authority is privileged. Section 211 provides:

"A duty or authority imposed or created by legislative enactment carries with it the privilege to enter...