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Hale v. State

Court of Appeals of Oregon

November 14, 2013

STATE OF OREGON, Defendant-Respondent.

Argued and submitted on April 08, 2013.

Lane County Circuit Court 161112609 Karsten H. Rasmussen, Judge.

David C. Force argued the cause and filed the briefs for appellants.

Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Crag Law Center and Christopher Winter filed the brief amici curiae for Beyond Toxics, Pesticide Action Network of North America and Neal Winter.

Sorenson Law Office and C. Peter Sorenson file the brief amici curiae for Northwest Center for Alternatives to Pesticides and Organically Grown Company.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.


Plaintiffs are property owners who use only organic and sustainable farming and forestry practices. Some of their neighbors use pesticides and other chemicals that, plaintiffs allege, migrate onto their property and into their persons. In an earlier case, plaintiffs Hale and Wroncy filed an action against a neighbor alleging that the chemical intrusion was a trespass. See Hale v. Klemp, 220 Or.App. 27, 184 P.3d 1185 (2008). The neighbor raised an affirmative defense based on ORS 30.930 to 30.947, commonly known as the "Right to Farm and Right to Forest Act" (the Act), which provides immunity to property owners who are sued for trespass or nuisance resulting from agricultural and forestry practices unless the practice is alleged to have caused death or serious injury.[1] Hale and Wroncy then voluntarily dismissed their action against the neighbor, pursuant to ORCP 54 A, but--based on the fact that their complaint had alleged trespass--they had to pay defendants' attorney fees. See Hale, 220 Or.App. at 34 (construing ORS 30.938[2]).

In this case, plaintiffs name the state as defendant and seek a declaratory judgment that the Act deprives them of a remedy in violation of the Remedy Clause in Article I, section 10, of the Oregon Constitution, which provides that, "every man shall have remedy by due course of law for injury done him in his person, property, or reputation." On the state's motion under ORCP 21 A, the trial court dismissed the case with prejudice, determining that plaintiffs had not stated a justiciable controversy. Plaintiffs appeal. We affirm.

On an appeal from a grant of a motion to dismiss, we assume the truth of all well-pleaded facts alleged in the complaint. Doe v. Lake Oswego School Dist., 353 Or 321, 297 P.3d 1287 (2013). We review legal conclusions for errors of law. Becker v. Pieper, 176 Or.App. 635, 641, 32 P.3d 912 (2001).

Plaintiffs allege that their property, crops, animals, and persons have suffered or will suffer injury caused by the drift of chemicals onto their properties from the surrounding properties. Further, plaintiffs believe that they are unable to pursue common-law remedies for their neighbors' alleged nuisance and trespass because, under the Act, generally accepted, reasonable, and prudent farm and forest practices are in most instances immune from liability for nuisance and trespass, and the availability of attorney fees acts as a deterrent. ORS 30.930(2), (4); ORS 30.936(1); ORS 30.938. They therefore brought this action against the state, seeking a declaration that the Act, by depriving them of a remedy, violates Article I, section 10. Without reaching the merits of plaintiffs' constitutional argument, the trial court concluded that plaintiffs had not alleged a justiciable controversy and granted the state's motion to dismiss on that basis. The court did not explain its reasoning orally or in writing.

On appeal, the state argues that the trial court's disposition was correct because a declaration that the Act is unconstitutional "could not affect the ability of plaintiffs' neighbors, who are not parties, to nonetheless invoke the Act's immunity provision in a future lawsuit." Plaintiffs, for their part, contend that their complaint alleges present facts--the existence of the Act and Article I, section 10--and that a judgment in their favor would have the effect of clarifying their "rights" under the "constitution [and] statute." ORS 28.020.[3] In particular, they assert that a declaration that the Act violates Article I, section 10, will clarify their right to seek relief from their neighbors.

The declaratory judgment statutes, ORS 28.010 to 28.160, have an uneasy relationship with the constitutional concept of justiciability. The statutes announce that their purpose "is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations, and [they are] to be liberally construed and administered." ORS 28.120. "Declaratory judgment is preventive justice, designed to relieve parties of uncertainty by adjudicating their rights and duties before wrongs have actually been committed." Beason v. Harcleroad, 105 Or.App. 376, 380, 805 P.2d 700 (1991) (emphasis added); see also Recall Bennett Committee v. Bennett, 196 Or 299, 322, 249 P.2d 479 (1952) ("[T]he action for declaratory judgment 'is an instrumentality to be wielded in the interest of preventative justice[.]'" (Quoting Cobb v. Harrington, 144 Tex 360, 190 S.W.2d 709 (1945) (quoting Anderson, Declaratory Judgments § 3 at 12).)). The statutory authority to issue declaratory judgments, however, is constrained by constitutional justiciability requirements.[4] The Supreme Court has held that the Uniform Declaratory Judgments Act does not give courts authority to issue declaratory rulings "in a vacuum; they must resolve an actual or justiciable controversy." TVKO v. Howland, 335 Or 527, 534, 73 P.3d 905 (2003); Brown v. Oregon State Bar, 293 Or 446, 449, 648 P.2d 1289 (1982). Courts cannot exercise jurisdiction over nonjusticiable controversies because a court cannot render advisory opinions. Pendleton School Dist. v. State of Oregon, 345 Or 596, 604, 200 P.3d 133 (2009). Thus, if a claim for a declaratory judgment does not involve a ...

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