BRIDGEVIEW VINEYARDS, INC., an Oregon corporation; and ROBERT E. KERIVAN, Petitioners-Appellants,
OREGON STATE LAND BOARD OF THE STATE OF OREGON, OREGON DIVISION OF STATE LANDS OF THE STATE OF OREGON, GOVERNOR JOHN KITZHABER, PAUL CLEARY, STEVEN PURCHASE, ANNE HANUS, PIERRE LUMLEY, GORDON DUNKELD, LARRY DOE, and WILLIAM COOK, Respondents-Respondents.
Argued and submitted on September 11, 2012.
Josephine County Circuit Court 99CV0132, Pat Wolke, Judge.
Clarence H. Greenwood argued the cause for appellants. With him on the briefs was Black Helterline LLP.
Cecil A. Reniche-Smith, Assistant Attorney General, argued the cause for respondents. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge. [*]
This case is before us for a second time, after the circuit court, on remand, granted summary judgment in favor of respondents on all eight of petitioners' claims and dismissed the action. In 1999, respondent Division of State Lands (DSL) denied petitioners' request for emergency authorization to undertake erosion control measures on agricultural property pursuant to Oregon's fill and removal law, ORS 196.795 to 196.990. In Claim 1, petitioners sought judicial review of DSL's order. In their related civil claim, Claim 2, petitioners sought declaratory relief concerning the fill and removal law and their proposed activities on the property. In their remaining six civil claims, petitioners alleged that respondents interfered with petitioners' rights in reaction to activities that they conducted on the property in 1998.
Petitioners' first assignment of error, which relates to Claim 1, primarily presents an issue of administrative law: On judicial review of an order in other than a contested case, must the circuit court allow a petitioner to supplement the administrative record through an evidentiary hearing, before the court rules on the challenge to the order, when the parties dispute facts material to the agency's order? We answer that question in the affirmative and conclude that the circuit court erred when it denied petitioners the opportunity to enhance the record through an evidentiary hearing. Accordingly, we reverse and remand the circuit court's judgment as to Claim 1.
In their second assignment of error, petitioners contend that the trial court erred in granting respondents' summary judgment motion because there were disputed issues of fact for trial on Claims 2 to 8. Although we affirm as to Claims 3 to 7, we agree with petitioners that factual disputes precluded summary judgment on Claims 2 and 8 and, as to those claims, reverse and remand.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
A. Claim 1: Judicial Review of DSL's 1999 Order
Claim 1 was the subject of our decision in Bridgeview Vineyards, Inc. v. State Land Board, 211 Or.App. 251, 154 P.3d 734, rev den, 343 Or 690 (2007). Bridgeview owns agricultural property zoned for exclusive farm use in Josephine County. Kerivan is Bridgeview's president and principal. In January 1999, petitioners requested emergency authorization from DSL to place riprap in or at the bank line of Sucker Creek to shore up the stream bank and to protect Bridgeview's property, roads, and trees from further erosion. Sucker Creek lies alongside Bridgeview's property and qualifies as "waters of the state" under Oregon's fill and removal law. Specifically, Sucker Creek is a non-navigable stream designated as salmonid habitat. Id. at 254-55. As such, it is protected under the fill and removal law, subject to various exceptions and exemptions.
We quote the relevant facts pertaining to the underlying application for emergency authorization from our earlier opinion.
"In 1999, * * * petitioner[s] sought emergency authorization from DSL to place riprap in Sucker Creek in order to shore up the stream bank. Petitioner[s'] written request referred to earlier telephone conversations and stated, in part, 'The emergency permit I'm asking for would allow us to put rip-rap in Sucker Creek to extend the rip-rap installed after the 1964 flood * * *.' (Emphasis added.) In denying the request, DSL indicated that it understood that petitioner[s'] 'request was to immediately place riprap along the bankline of Sucker Creek to prevent further erosion of [petitioners'] property.' DSL denied petitioner[s'] application, concluding that petitioner[s'] concerns about erosion had been ongoing for some time and did not satisfy the criteria for issuing an emergency authorization."
Id. at 255-56 (footnotes omitted; emphasis in original).
In February 1999, DSL denied the requested authorization for lack of an emergency. DSL informed petitioners that Sucker Creek had an "in-water work period" from "June 15 to September 15, " which was "to protect 'reds' (fish eggs) and newly hatched fish that may be in the gravel of the streams at all other times."
Petitioners sought judicial review of DSL's order in the circuit court under ORS 183.484, which provides jurisdiction for judicial review of orders in other than contested cases. They alleged in Claim 1 that (1) DSL had incorrectly concluded that no emergency existed, and (2) in any event, its proposed activity did not require a permit. Bridgeview, 211 Or.App. at 256-57. The circuit court granted their motion for partial summary judgment on Claim 1 based on permit exceptions under ORS 196.810(1) or exempt activities under ORS 196.905 (1997). Bridgeview, 211 Or.App. at 257.
In resolving that appeal in Bridgeview, we observed that as of January 1999, after a number of amendments, the fill and removal law "generally required a permit for the removal of 50 cubic yards or more of material from a stream or the placement of a like amount of fill in a stream." Id. at 260-61. We also summarized applicable exceptions to the permit requirement:
"The law, however, exempted any fill or removal that was for specifically enumerated activities occurring on converted wetlands and lands zoned for exclusive farm use, as well as any fill or removal that was for specific maintenance and reconstruction activities--e.g., dikes, dams, riprap, and roads. Finally, the law also contained more stringent permitting requirements for salmonid streams by requiring a permit before any material could be removed from those streams, except for 'activities customarily associated with agriculture.'"
Id. at 261.
After analyzing the permitting statute, ORS 196.810, and reviewing its legislative history, Bridgeview, 211 Or.App. at 261-267, we held that, "under ORS 196.810, even in connection with activities customarily associated with agriculture, a permit is required to fill or remove 50 cubic yards or more of material in a salmonid stream." Bridgeview, 211 Or.App. at 267. We concluded that the trial court had erred in granting petitioners' motion for partial summary judgment under the exception in ORS 196.810 because they had failed to provide "evidence with respect to the proposed volume of its 1999 fill request." Id.
We also analyzed whether three exemptions in ORS 196.905 applied to petitioners' proposed 1999 activities. Bridgeview, 211 Or.App. at 267-78. We concluded that ORS 196.905(3), (4), and (6) did not apply given that the riprap was to be placed within Sucker Creek, which we understood was an undisputed fact. Id. at 255. We concluded that "the legislature's focus in subsection (3) was a narrow one, that is, on fill and removal activities on converted wetland that had been dedicated to specifically approved purposes." Id. at 272. Although the circuit court had ruled that Bridgeview's land was converted wetland within the meaning of ORS 196.905, we nonetheless held that, because the stream itself was not converted wetland, ORS 196.905(3) did not apply. Id.
As for the exemption in subsection (4), we concluded that, "because Sucker Creek is not the same site as petitioner[s'] roads, subsection (4) did not authorize the unregulated filling of Sucker Creek that petitioner[s] propose[ ] to undertake." Id. at 275. Finally, we determined that the trial court erred in granting petitioners' motion for partial summary judgment on the exemption in subsection (6) for repairs and maintenance of existing structures, such as riprap. We concluded that evidence of the conditions needed for that exemption was not presented to the circuit court:
"[T]here is no evidence in the record showing that the proposed maintenance of petitioner[s'] riprap would not 'significantly adversely affect wetlands that existed at the time that the [riprap] was in good repair other than those wetlands that were significantly adversely affected as ...