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IN THE SUPREME COURT OF THE STATE OF OREGON
EASTERN OREGON MINING ASSOCIATION; GUY MICHAEL; and CHARLES CHASE,
Petitioners-Appellants 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-Respondents Respondents on Review.
Marion County Circuit Court
10C24263
WALDO MINING DISTRICT, an unincorporated association; THOMAS A.
KITCHAR; and DONALD R. YOUNG, Petitioners-Appellants 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-Respondents on Review.
Marion County Circuit Court 11C19071
Court of Appeals
A156161
S063549
PETITIONERS ON REVIEW – MOTION – FILE REPLY BRIEF
2
Pursuant to this Court’s December 10, 2015 Order, Petitioners hereby
move for leave to file the attached proposed Reply Brief of Petitioners on
Review. The proposed Reply Brief responds to unanticipated arguments and
positions of Respondents, and should aid the Court in its resolution of the
matter.
Counsel for Respondents do not oppose this motion.
Dated: May 26, 2016.
Respectfully submitted,
/s/ James L Buchal
JAMES L. BUCHAL, OSB #921618
MURPHY & BUCHAL LLP
3425 SE Yamhill Street, Suite 100
Portland, OR 97214
Tel: 503-227-1011
Attorney for Petitioners on Review
3
CERTIFICATE OF FILING AND SERVICE
I hereby certify that I electronically filed the foregoing
PETITIONERS ON REVIEW – MOTION – FILE REPLY BRIEF with the
State Court Administrator, Appellate Courts Records Section, 1163 State
Street, Salem, OR 97301, on May 26, 2016.
I further certify that the foregoing PETITIONERS ON REVIEW –
MOTION – FILE REPLY BRIEF will be served electronically on
May 26, 2016, on the following:
Carson L. Whitehead, OSB No. 105404
Oregon Department of Justice
Appellate Division
1162 Court Street NE
Salem, OR 97301-4096
E-mail: [email protected]
Attorney for Respondents on Review
Michael A. Casper, OSB No. 062000
Oregon Department of Justice
Appellate Division
1162 Court Street NE
Salem, OR 97301-4096
E-mail: [email protected]
Attorney for Respondents on Review
/s/ James L Buchal
JAMES L. BUCHAL, OSB #921618
Attorney for Petitioners on Review
ATTACHMENT
[PROPOSED] REPLY BRIEF OF PETITIONERS ON REVIEW
IN THE SUPREME COURT OF THE
STATE OF OREGON
————————————————————
EASTERN OREGON MINING ASSOCIATION; GUY MICHAELS;
and CHARLES CHASE,
Petitioners-Appellants, 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-Respondents, Respondents on Review.
Marion County Circuit Court
10C24263
————————————————————
WALDO MINING DISTRICT, an unincorporated association; THOMAS A.
KITCHAR; and DONALD R. YOUNG,
Petitioners-Appellants, 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 Divi-
sion of the Department of Environmental Quality,
Respondents-Respondents, Respondents on Review.
Marion County Circuit Court
11C19071
————————————————————
Court of Appeals
A156161
S063549
————————————————————
REPLY BRIEF OF PETITIONERS ON REVIEW
————————————————————
Continued…
————————————————————
On review of the decision of the Court of Appeals
on appeal from a judgment of the Circuit Court for Marion County
Honorable COURTLAND GEYER, Judge
Opinion filed August 19, 2015 (Per Curiam)
Before Judges REX ARMSTRONG (presiding), LYNN NAKAMOTO,
and JAMES EGAN
————————————————————
ELLEN F. ROSENBLUM #753239
Attorney General
BENJAMIN GUTMAN #160599
Solicitor General
MICHAEL CASPER #062000
Senior Assistant Attorney General
CARSON WHITEHEAD #105404
Assistant Attorney General
Oregon Department of Justice
1162 Court Street NE
Salem, Oregon 97301
(503) 378-4402
Attorneys for Respondents on Review
JAMES L. BUCHAL #921618
Murphy & Buchal LLP
3425 SE Yamhill Street, Ste. 100
Portland, Oregon 97214
(503) 227-1011
WILLIAM P. FERRANTI #160069
Attorney at Law
1819 SW 5th Avenue, #403
Portland, Oregon 97201
(503) 877-9220
Attorneys for Petitioners on Review
May 2016
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................................................... ii
SUMMARY OF ARGUMENT ............................................................................ 1
ARGUMENT ........................................................................................................ 4
I This Appeal Is Not Moot ............................................................................ 4
A. The Miners’ challenge to the errors in the 2010 Permit which
continued in the 2015 Permit is not moot. ....................................... 4
B. The Miners’ claim for declaratory relief is not moot ....................... 9
II. Even If The Case Is Technically Moot, It Should Be Reviewed
Pursuant To ORS 14.175 .......................................................................... 10
CONCLUSION ................................................................................................... 13
ii
TABLE OF AUTHORITIES
Cases
Bay River, Inc. v. EQC,
26 Or. App. 717 (1976) .................................................................. 9, 10
Conservation Law Found. v. Evans,
360 F.3d 21 (1st Cir. 2004) ...................................................................5
Dow Chemical Co. v. EPA,
605 F.2d 673 (3d Cir. 1979) ......................................................... 5, 6, 7
Super Tire Eng’g Co. v. Corkle,
416 US 115, 94 S Ct 1694, 40 L Ed 2d 1 (1974) ..................................7
Teel Irrigation District v. Water Resources Department,
323 Or. 663 (1996) ............................................................................. 11
Constitutional and Statutory Provisions
33 U.S.C. § 1342 ................................................................................. 1, 2, 3, 6
33 U.S.C. § 1344 ..............................................................................................1
Or Const, Art 1, § 10 ..................................................................................... 13
ORS 14.175 ....................................................................................... 2, 3, 4, 10
ORS 14.175(1) .............................................................................................. 10
ORS 14.175(2) .............................................................................................. 10
ORS 14.175(3) .............................................................................................. 10
ORS 28.010 ......................................................................................................9
iii
ORS 183.480(3) ............................................................................................ 10
ORS 183.484(5)(a) ...........................................................................................8
ORS 183.484(5)(a)(B) .....................................................................................8
Senate Bill 838 ............................................................................................ 3, 4
1
SUMMARY OF ARGUMENT
While maintaining the position that “this case is not justiciable and must
be dismissed” (Resp. Br. 2), the Department of Environmental Quality
acknowledges that the new, 2015 permit is “the same” in “many” respects as
the 2010 permit. Most importantly, it is the same in its treatment of the over-
arching question: whether the discharge of dredged materials is to be regulated
as the “discharge of dredged materials” pursuant to § 404 of the federal Clean
Water Act, or whether the Miners and their members may be subjected to a
complex and expensive National Pollution Elimination Discharge System
scheme under § 402 of the Act, which covers the “discharge of a pollutant”.
The parties have been litigating this question for more than a decade. In
the first round of litigation the Court of Appeals determined, contrary to federal
law and controlling U.S. Supreme Court precedent, to divide the single dis-
charge of dredged materials into those which sank to the bottom immediately,
and those which did not, positing that the former were regulated under § 404
and the latter under § 402. The Department insists, even before this Court, that
it is bound to enforce § 402 against Petitioners. (Resp. Br. 4.) The Department
acknowledges that its “authority to regulate suction dredging under § 402 of the
CWA has been the subject of litigation since at least 2005”.
2
The Department also acknowledges, as it must, that “the federal law issue
is almost certain to persist” and that “guidance as to that issue will benefit peti-
tioners and the agency alike”. (Resp. Br. 32.) The Department even states that
it “is not pleased at the prospect of returning to the lower courts for further
rounds of litigation, and the state would in fact welcome the opportunity to end
the cycle of litigation”. (Resp. Br. 28.) That is easy to accomplish, and the
Miners accept the Department’s suggestion (id. at 34-36) that this Court eschew
any remand to the Court of Appeals and end the cycle of litigation by reaching
and ruling on the merits of at least the § 402 issue.
But where the Miners and the Department part company is over the De-
partment’s claim that for this Court to do so would frustrate Oregon legislative
intent concerning “principles of justiciability”. (Id. at 29.) This case was not
moot under the principles of justicibility that existed prior to the Legislature’s
passage of ORS 14.175, and the manifest legislative intent of passing ORS
14.175 was to expand this Court’s prior precedent on mootness and to broaden
principles of justiciability to avoid the staggering waste of litigating cases like
3
this over and over and over again. As shown in Petitioners’ Opening Brief
(“EOMA Op. Br.”) and further shown below, a large body of federal and state
law allows this Court to reach the merits with no offense to “principles of justi-
ciability” or ORS 14.175.
With regard to Senate Bill 838, the Miners expect that the law will be
struck down as unconstitutional on appeal, but in any event, the Department
concedes that the moratorium shuts down only “about one-third” of the “loca-
tions in which miners sought to mine under the 700-PM permit in 2015”.
(Resp. Br. 10 n.2.) SB 838 is thus not directly relevant to this Court’s assess-
ment of mootness; DEQ’s challenged permitting regime remains an (unlawful)
constraint, apart from and independent of that law. A judgment from this Court
remanding the case to the Department to develop a regulatory scheme on some
basis other than the unlawful § 402 predicate will plainly benefit the Miners.
As far as the prudence of proceeding and the discretion afforded by ORS
14.175—the third question posed by this Court in its briefing order (ER-49)—
the Miners have already explained how this Court’s judgment stripping § 402
complexities from the backs of the suction dredgers of Oregon would help fo-
cus the Legislature and the Department on more sensible regulatory strategies
4
and priorities. (EOMA Op. Br. 50-51.) What is more, the Department itself
agrees that, even if this case is moot, SB 838 should not derail further review.
(See Resp. Br. 32 (“Regardless of the changes to state law that may emerge in
the wake of SB 838, the department agrees with petitioners, (BOM 50), that that
federal law issue is almost certain to persist.”).)1 Of course, the Department
contends that the case is moot, and does not evade review for purposes of ORS
14.175. On both points, however, the Department is mistaken.
ARGUMENT
I. This Appeal Is Not Moot.
A. The Miners’ challenge to the errors in the 2010 Permit which
continued in the 2015 Permit is not moot.
Where, as here, a government agency issues and reissues what is in sub-
stance the same decision, courts regard challenges to the decision as not moot,
despite the fact that the same decision is now embodied in a different form.
The Department attempted to brush aside the cases to this effect cited in the
1 Given this concession, the Miners will not further address in this Reply the third
question posed by the Court—whether, if ORS 14.175 applies, review should be
declined nonetheless based on SB 838—except to note that the Department gives
unduly short-shrift to our proposed standard for exercising the discretion provid-
ed by ORS 14.175. (See EOMA Op. Br. 46-47 (drawing analogy between the
discretion to decline jurisdiction provided by ORS 14.175 and the principles gov-
erning similar discretion in several other contexts); Resp. Br. 30-31 & n.17 (mis-
characterizing our argument, ignoring the cited authorities, and offering an alter-
native standard of the Department’s own devise, without citation or other sup-
port).)
5
Miners’ opening brief on the ground that “none involved review under the
APA.” (Resp. Br. 16 n.10.) That, however, is not a meaningful distinction—
particularly given that all agree that the mootness standard under Oregon law is
“practical,” not technical. (See EOMA Op. Br. 22-23 (citation omitted); accord
Resp. Br. 13.)
Further, we meet the Department’s challenge: in addition to the cases
cited in our opening brief, additional authority may be found in Conservation
Law Found. v. Evans, 360 F.3d 21, 26 (1st Cir. 2004) (collecting cases), and
Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir. 1979). In these APA cases,
the courts ruled that ongoing challenges to expired or withdrawn agency actions
were not moot. As the First Circuit put it, “we have no difficulty concluding
that, where a challenged regulation continues to the extent that it is only super-
ficially altered by a subsequent regulation, we are capable of meaningful re-
view.” Conservation Law Found., 360 F.3d at 26
Dow Chemical makes it clear that “the policy concerns that underlie the
exception to mootness doctrine” should be invoked to deem the case non-moot
even where the new administrative action might not evade review. See 605 F.2d
678-80. In that case, EPA withdrew a rule while litigation was still ongoing,
6
but “clearly stated that it did not intend ‘to change its interpretation of the scope
of its statutory authority’ about which ‘it entertains no doubt’” and the agency
was working on a new rule “that will take precisely the same substantive posi-
tion adopted in the withdrawn rule.” 605 F.2d at 678. Here, the Department
has no doubt that it will continue to apply § 402 to the Miners’ activities and
indeed declares that it is bound by the Court of Appeals opinion to do so.
Reluctant “to dismiss a genuine and concrete controversy for what in this
case amounts to a technical reason, brought about by the party seeking such a
dismissal,” the Third Circuit in Dow found the case to be not moot, explaining
that “[i]f this action by the EPA were alone sufficient to render a live dispute
moot, the timing and venue of judicial review could be effectively controlled by
the agency.” Id. at 679. The same problem exists here: if the miners were to
challenge the 2015 permit, the Department could issue a new permit at any
time. In reasoning that should be compelling for this Court, the Third Circuit
concluded:
To refuse to pass on the questions presented, then, would require both the
parties and the Court to undergo considerable additional expense and ef-
fort for no valid reason. Moreover, it would leave unresolved a dispute
that it is in the interests of both parties as well as the public at large to
have resolved.
7
605 F.2d at 680.2 As noted above, the Department acknowledges that it is in
the interests of both parties and the public to get this dispute resolved, but be-
lieves that “principles of justiciability” forbid such a result. (Resp. Br. 28-29.)
As these and other cases demonstrate, however, those principles in fact do not
foreclose judicial review in this context. Again, the mootness standard is prag-
matic; when agency action is unchanged and ongoing, as here, mootness does
not arise from the mere change of form.
Against this body of law, the Department advances a technical argument
suggesting that “because the 2010 permit has expired and been replaced by the
2015 permit, petitioners’ claims under the APA and the Uniform Declaratory
Judgment Act can have no practical effect”. (Resp. Br. 13-14.) This, says the
Department, is because under the APA “an expired permit cannot be set aside,
modified, or remanded”. (Id. at 14.) But the question of mootness does not
turn on this Court’s authority to set aside, modify, or remand the 2010 permit;
“the relevant inquiry is simply whether petitioners can be afforded meaningful
2 In fact, in reaching this conclusion of non-mootness, the Third Circuit relied on
the same U.S. Supreme Court decision quoted in our opening brief, Super Tire
Eng’g Co. v. Corkle, 416 US 115, 94 S Ct 1694, 40 L Ed 2d 1 (1974): “the chal-
lenged governmental activity in the present case is not contingent has not evapo-
rated or disappeared, and, by its continuing and brooding presence, casts what
may well be a substantial adverse effect on the interests of the petitioning par-
ties.” See Dow Chem., 605 F.2d at 679-80 (quoting 416 U.S. at 122); EOMA Op.
Br. 29-30.
8
relief.” (Resp. Br. 17.) A favorable ruling by this Court itself would be such
relief, simply from the practical impact it would have on agency’s actions going
forward (just as the 2009 Court of Appeals decision has impacted not only the
2005 Permit directly under review at that time, but also the 2010 and 2015 Per-
mits that followed).
What is more, ORS Chapter 183 provides broad authority for this Court
to not merely “affirm, reverse, or remand the [2010] order” (Resp. Br. 15; citing
ORS 183.484(5)(a)), but also, where the Court “finds that an agency has erro-
neously interpreted a provision of law, and that a correct interpretation compels
a particular action, it shall . . . [r]emand the case to the agency for further action
under a correct interpretation of the provision of law” (ORS 183.484(5)(a)(B)
(emphasis added). The “case” is manifestly something different, and broader,
than the “order”.
This language provides express authority, where an error of law is found,
to look beyond the particular order to do justice with respect to the larger con-
troversy. Here, as the case now stands, EOMA is not principally concerned
with a remand of the order, so much as the relief expressly contemplated in
ORS 183.484(5)(a)(B): the Department must not merely reconsider its order,
but cast aside its entire erroneous NPDES process and develop any new regula-
tory scheme under lawful authority.
9
B. The Miners’ claim for declaratory relief is not moot.
Insofar as Miners’ claim for declaratory relief directly attacked the for-
mation of the 2015 permit, it is even clearer that this claim is not moot. The
claim makes a straightforward attack on the procedure used to adopt the 2015
permit. And, as the Department itself explains, “the nature of the relief availa-
ble to the court in a declaratory judgment action is quite different—and much
broader—than under the APA,” insofar as ORS 28.010 gives a court “jurisdic-
tion to declare the ‘rights, status, and other legal relations, whether or not fur-
ther relief is or could be claimed’”. Resp. Br. 16 n.10 (emphasis added by the
Department). And yet the Department claims that notwithstanding a timely
challenge during the adoption, the Miners should be required to commence an
entirely new case for review of the permit. The case they cite for this proposi-
tion, Bay River, Inc. v. EQC, 26 Or. App. 717 (1976), requires no such wasteful
duplicative litigation.
In Bay River, the litigant challenged agency action in the middle of a con-
tested case proceeding the litigant had initially sought. Id. at 720. Here, the
Department refused to provide the contested case (or rulemaking) procedure re-
quired by law, instead acting arbitrarily and unlawfully through secret negotia-
tions with environmentalists that crystallized into permit conditions. As Bay
River explains, litigants can proceed directly “upon showing that the agency is
10
proceeding without probable cause, or that the party will suffer substantial and
irreparable harm if interlocutory relief is not granted.” (Id. at 721 (quoting ORS
183.480(3)).) Here, petitioners sought interlocutory relief against the unlawful
proceedings precisely because of such harm, and the Circuit Court erred in
denying the relief. To require starting from scratch in a whole new lawsuit, to
address the same procedural issue, would not only be wasteful, but also make
Circuit Court decisions declining to grant relief under ORS 183.480(3) effec-
tively unreviewable.
II. Even If The Case Is Technically Moot, It Should Be Reviewed Pur-
suant To ORS 14.175.
The Department does not dispute that the first two elements of ORS
14.175 are easily satisfied here: (1) Petitioners have standing (ORS 14.175(1))
and (2) “the challenged act or policy is capable of repetition or continues in ef-
fect” (ORS 14.175(2)). (Resp. Br. 20) Remarkably, however, though Petition-
ers’ challenges have been twice dismissed for mootness, the Department denies
that the issues raised by Petitioners “are likely to evade judicial review in the
future” (ORS 14.175(3)).
This was the basis on which the Court of Appeals ruled, though it is tell-
ing that the Department makes no attempt whatsoever to defend the actual ra-
tionale of the decision below. Instead, according to the Department, this case
was properly dismissed because the 2010 permit and its replacement ostensibly
11
last five years, which the Department says is ordinarily enough time to secure
judicial review. But the ordinary time to obtain review by this Court is more
than five years. That is, Petitioners do not merely need to secure judicial re-
view to obtain effective relief; they need to secure review by this Court, after
laboriously proceeding through the circuit court, hobbled by collateral attacks
from environmentalists and busy circuit court trial dockets.
From this perspective, other cases asserting that one type of case or an-
other is unlikely to evade review has no bearing on whether this controversy is
likely to evade review. Moreover, the Department’s own cited precedents con-
firm that it is: in particular, the Department cites multiple cases involving ap-
peals directly to the Court of Appeals from a contested case hearing, which
show that it usually takes more than four years to get to this Court. (Resp. Br.
23.) Adding the entire layer of Circuit Court review plainly makes it at least
likely that appeals from orders in other than a contested case proceeding, like
this one, will take more than five years to reach this Court.3
3 The sole other than a contested case the Department identifies which took less
than five years to reach this court, Teel Irrigation District v. Water Resources De-
partment, 323 Or. 663 (1996), involved less crowded dockets of twenty years
ago, with no participation by environmental intervenors. The existence of one
such case does not make it “likely” that Petitioners could obtain review in this
Court before Departmental claims that they must start all over again.
12
And we can be sure this controversy is likely to evade review because it
has evaded review twice already, and the circumstances now make it even more
likely to evade review. This time around, the 2015 permit is facing “significant
changes to the regulatory framework” with proposed changes likely to be made
“in the upcoming 2017 [legislative] session”. (Resp. Br. 2.) In short, Petition-
ers face not just the five-year clock within the permit and the risk that it might
be amended at any time by the agency within five years, but also the risk of fur-
ther legislative innovations. Even if this case were deemed technically moot—
and it should not be—the Miners need not demonstrate that it is impossible to
get this Court before the 2015 permit expires, only that is likely that they would
not be able to do so.
The insinuation that Petitioners were not “conscientious” in their chal-
lenge to the 2010 permit (Resp. Br. 21), later amended to suggest that “this is
not to suggest that there is anything improper with the manner in which this
case proceeded” (Resp. Br. 28) is both offensive and irrelevant. It is offensive
because the Department claims that this case “was extraordinarily slow” even as
the Department presents numerous examples of other review cases taking simi-
lar lengths of time. And it is irrelevant because (a) the Department is conspicu-
ously silent about the first lawsuit (over the 2005 permit); there is no contention
that the Miners were less than “conscientious” in that round, which ended short
13
of this Court’s review, even though litigation began in the Court of Appeals;
and (b) no principle of law requires litigants to waive forever legal defenses and
issues to narrow the case to the smallest possible argument in the hope of expe-
diting judicial review. (The rule against splitting causes of action would forbid
petitioners from bringing multiple challenges to the same conduct to create is-
sue-by-issue streamlined cases.)
The record before this Court demonstrates that the ordinary course of lit-
igation involves years of delays to get administrative review of complex admin-
istrative decisions before this Court and every likelihood that the issues raised
by the Miners would evade review yet again if they were forced to start all over.
CONCLUSION
The fundamental principle that should guide this Court is that “justice
shall be administered, openly and without purchase, completely and without de-
lay, and every man shall have remedy by due course of law for injury done him
in his person, property, or reputation.” Or Const, Art 1, § 10. Addressing the
fundamental questions presented by this appeal vindicates that principle while
offending no other and lesser ones.
14
Dated: May ____, 2016 Respectfully submitted,
/s/ James L. Buchal
JAMES L. BUCHAL #921618
Murphy & Buchal LLP
3425 SE Yamhill Street, Ste. 100
Portland, Oregon 97214
(503) 227-1011
WILLIAM P. FERRANTI #160069
Attorney at Law
1819 SW 5th Avenue, #403
Portland, Oregon 97201
(503) 877-9220
Attorneys for Petitioners on Review
CERTIFICATE OF COMPLIANCE WITH
BRIEF TYPE SIZE REQUIREMENTS
I certify that the size of the type in this brief is not smaller than 14 point
for both the text of the brief and footnotes as required by ORAP 5.05(4)(f).
Dated: May ____, 2016 /s/ James L. Buchal
JAMES L. BUCHAL #921618
Murphy & Buchal LLP
3425 SE Yamhill Street, Ste. 100
Portland, Oregon 97214
(503) 227-1011
Attorney for Petitioners on Review
CERTIFICATE OF SERVICE
I hereby certify that, on this day, I caused the foregoing REPLY BRIEF
OF PETITIONERS ON REVIEW to be (1) filed electronically with the Appel-
late Court Administrator, and (2) served electronically upon counsel for Re-
spondents on Review, Ellen F. Rosenblum, Benjamin Gutman, Michael Casper,
and Carson Whitehead, using the electronic service function of the eFiling sys-
tem.
Dated: May ____, 2016 /s/ James L. Buchal
JAMES L. BUCHAL #921618
Murphy & Buchal LLP
3425 SE Yamhill Street, Ste. 100
Portland, Oregon 97214
(503) 227-1011
Attorney for Petitioners on Review
