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Fick v. Oregon Dep't of Fish & Wildlife

Court of Appeals of Oregon

March 18, 2015

Steve FICK, James Wells, and Fishhawk Fisheries, Inc., Petitioners,
v.
OREGON DEPARTMENT OF FISH AND WILDLIFE, Respondent, and THE COASTAL CONSERVATION ASSOCIATION and David Schamp, Intervenors-Respondents

Argued and Submitted June 4, 2014.

Department of Fish and Wildlife.

OAR 635-500-6700 to 635-500-6765 held valid.

C. Robert Steringer argued the cause for petitioners. With him on the briefs were John C. Rake and Harrang Long Gary Rudnick P.C.

Inge D. Wells, Assistant Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General.

Bruce H. Cahn argued the cause for intervenors-respondents. With him on the brief were Amy J. Heverly, Ball Janik LLP, Gregory A. Chaimov, and Davis Wright Tremaine LLP.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Egan, Judge.

OPINION

Page 605

[269 Or.App. 758] SERCOMBE, P. J.

Petitioners, Steve Fick, James Wells, and Fishhawk Fisheries, Inc., seek judicial review of certain rules adopted by respondent Oregon Department of Fish and Wildlife (ODFW).[1] In particular, pursuant ORS 183.400(1),[2] petitioners challenge a series of administrative rules entitled " Columbia River Recreational and Commercial Fisheries Management Strategies," numbered OAR 635-500-6700 to 635-500-6765. On judicial review, petitioners challenge the rules on seven grounds. We write to address petitioners' first ground for challenge, in which they assert that the rules should be declared invalid because they were adopted without compliance with ORS 183.540, and reject petitioners' remaining contentions without discussion. As explained below, we conclude that the rules in question are valid.

Following letters from then-Oregon Governor Kitzhaber to the Oregon Fish and Wildlife Commission (the commission), the Columbia River Fishery Management [269 Or.App. 759] Workgroup was appointed to develop " an alternative management framework for non-tribal

Page 606

Columbia River recreational and commercial fisheries." The workgroup subsequently produced a document outlining management strategies that it recommended to the Fish and Wildlife Commissions of Oregon and Washington. The recommendations were " intended to enhance the economies of Oregon and Washington as a whole, ensure the long-term viability of recreational and commercial fisheries and those communities that rely on them, and contribute to fish conservation and recovery." Based on those recommendations, ODFW developed and proposed the administrative rules under review.

In late 2012, ODFW issued a notice of proposed rulemaking for a hearing scheduled on December 7, 2012. Then, in December 2012, the commission adopted the proposed new rules, numbered as OAR 635-500-6700 to 635-500-6765. Petitioners sought judicial review of the new rules, asserting that the agency violated applicable rulemaking procedures and that the rules were contrary to controlling state statutes. Thereafter, ODFW sought an extension of time to file the agency record with this court " in order to address petitioners' claims that the agency failed to comply with certain rulemaking procedures." Although the agency did not concede the merits of petitioners' assertions, it contended " that judicial economy and the interests of justice would best be served by amending the fiscal impact statement and re-noticing the rules." According to ODFW, that process would address the procedural concerns raised by petitioners. The agency further noted to the court that

" [t]he Commission will determine whether to repeal, re-adopt, or amend the rules at a May 2013 meeting. If the present rules are repealed or amended, this proceeding will become moot and respondent will avoid the cost of unnecessarily preparing a judicial review record. If the rules are re-adopted, a single record may be provided at that time."

The court granted the motion and held the case in abeyance while the agency completed the process described in the motion.[3]

[269 Or.App. 760] In March 2013, ODFW issued a new notice of rulemaking for a hearing scheduled on May 10, 2013. The notice stated that

" [a]dditional time to comment on these rules, first adopted December 7, 2012, is being provided in part to address alleged deficiencies in either the process or economic analysis of that rulemaking, articulated for the first time by the petitioners on appeal in Fick v. Oregon Department of Fish and Wildlife, CA# A153317."

That notice of rulemaking was accompanied by a Statement of Need and Fiscal Impact and a " Fiscal and Economic Impact Statement for the May 10, 2013 Hearing In the Matter of Rules Relating to Columbia River Fishery Management for 2013 and Beyond" (the FEIS).[4] Eventually, in June 2013, the commission readopted OAR 635-500-6700 to 635-500-6765, which, as petitioners note, " are identical in substance to th[e rules] passed on December 7, 2012."

The rules establish the commission's policy for the " non-tribal Columbia River Recreational and Commercial Fisheries Management Framework," OAR 635-500-6700, and address the management of certain species of fish protected under the Endangered Species Act (ESA). OAR 635-500-6705 articulates the " Guiding Principles for Columbia River fisheries management." Those are to

" (1) Promote the recovery of ESA-listed species and the conservation of wild stocks of salmon, steelhead, and sturgeon on the Columbia River.
" (2) Continue leadership on fish recovery actions, including improved fish survival through the federal Columbia River hydropower system, improved habitat conditions in the tributaries and estuary, hatchery reform, reduced predation by fish, birds, and marine mammals, and harvest management that meets conservation responsibilities.

Page 607

" (3) Continue to meet terms of U.S. v. Oregon management agreements with Columbia River Treaty Tribes.
" (4) In a manner that is consistent with conservation and does not impair the resource, seek to enhance the [269 Or.App. 761] overall economic well-being and stability of Columbia River fisheries in Oregon.
" (5) For steelhead, salmon and sturgeon, prioritize recreational fisheries in the mainstem and commercial fisheries in off-channel areas of the ...

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