EASTERN OREGON MINING ASSOCIATION; Guy Michael; and Charles Chase, Petitioners-Appellants,
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. WALDO MINING DISTRICT, an unincorporated association; Thomas A. Kitchar; and Donald R. Young, Petitioners-Appellants,
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.
Submitted on remand August 23, 2016.
on remand May 4, 2017.
County Circuit Court 10C24263, 11C19071 Courtland Geyer,
remand from the Oregon Supreme Court, Eastern Oregon
Minins Association v. DEQ. 360 Or. 10, 376 P.3d 288
Or.App. 822] James L. Buchal argued the cause for appellants.
With him on the briefs was Murphy & Buchal LLP.
Michael A. Casper, Assistant Attorney General, argued the
cause for respondents. On the answering brief were Ellen F.
Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Inge D. Wells, Assistant Attorney General. On
the supplemental brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Michael A.
Casper, Assistant Attorney General.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
Summary: Petitioners appeal from a general judgment entered
in favor of respondent Department of Environmental Quality
(DEQ). Petitioners are small suction dredge miners who sought
judicial review of DEQ's issuance of a 2010 permit
regulating small suction dredge mining (the 2010 700-PM
permit) in the circuit court pursuant to ORS 183.484.
Petitioners alleged that (1) DEQ exceeded its delegated
authority under the Clean Water Act in issuing the permit;
(2) DEQ exceeded its state law authority in issuing the
permit; and (3) the permit was not based on substantial
evidence. Further, petitioners also alleged that a settlement
agreement resolving related litigation between DEQ and
environmental groups was invalid. Both parties moved for
summary judgment. The trial court granted DEQ summary
judgment on all claims. Petitioners appealed, asserting four
assignments of error. Before the Court of Appeals could
address the appeal, the 2010 700-PM permit expired, and the
court dismissed the case as moot. Eastern Oregon Mining
Assoc. v. DEQ, 273 Or.App. 259, 261, 361 P.3d 38 (2015),
rev'd and rem'd, 360 Or. 10, 376 P.3d 288 (2016).
Petitioners appealed that decision. The Supreme Court granted
review, and reversed and remanded with instructions for the
Court of Appeals to decide whether to exercise its discretion
to address the moot issues presented by the case under ORS
14.175. Eastern Oregon Mining Assoc., 360 Or at 19.
Held: After considering the past and continuing
adversity of the parties' interests, the application of
the disputed federal and state laws to interests wider than
those of the parties themselves, judicial economy, the
relative public importance of the case, and the breadth of
people and interests potentially affected, the Court of
Appeals decided to exercise its discretion to consider only
petitioners' frst assignment of error. Addressing that
assignment of error, the court held that DEQ had delegated
authority under the Clean Water Act to issue the 2010 700-PM
of judgment concluding DEQ had authority to issue 2010 700-PM
permit under section 402 of the Clean Water Act affrmed;
otherwise declining to address remaining moot issues under
Or.App. 823] SHORR, J.
case returns to us on remand from the Supreme Court. The
first issue on remand is whether we will exercise our
discretion under ORS 14.175 to decide the otherwise moot
issues presented by this case. As discussed below, we decide
to exercise our discretion to reach only petitioners'
first assignment of error. With respect to the merits of that
assignment, we determine, based on our decision in a prior
related case, that the trial court did not err in concluding
that respondent Department of Environmental Quality (DEQ) had
the delegated authority under section 402 of the Clean Water
to issue the general permit to regulate "visible
turbidity" from small suction dredge mining. We decline
to exercise our discretion to reach the second through fourth
assignments of error.
litigation and the type of small suction dredge mining permit
at issue has a long history. Some background is helpful to
understand our opinion. We start with a brief history of the
prior related case, which, as we later discuss, resolves our
decision on the first assignment of error. The two primary
parties involved in this case, petitioner Eastern Oregon
Mining Association (EOMA) and respondent DEQ, were also
parties to that prior case, Northwest Environmental
Defense Center v. EQC. 232 Or.App. 619, 223 P.3d 1071
(2009), rev dismissed, 349 Or. 246 (2010)
(Northwest Environmental Defense Center I). In that
case, petitioners EOMA and other petitioners (collectively
petitioners) sought a judicial determination from us
under ORS 183.400 that would have invalidated a general
discharge permit, which was known as the "700-PM permit,
" that was issued by DEQ in 2005.232 Or.App. at
622. The 2005 700-PM permit placed conditions on the
operation of small suction mining dredges in Oregon waters.
Id. Petitioners are individual small suction [285
Or.App. 824] dredge miners and associations of such miners.
Small suction dredge mining generally involves using a
gas-powered pump to pull streambed sediments and water
through a small intake hose, which passes the material
through a sluice tray that separates out gold and other dense
particles for collection, and then returns the discharged
water and lighter material back into the stream. Id.
prior case, petitioners argued to us that the permitting of
discharges from small suction dredge mining was within the
exclusive regulatory authority of the Army Corps of Engineers
(Corps) under the Clean Water Act. Id. at 622. In
other words, petitioners claimed that DEQ had no authority
under federal law to issue the 700-PM permit. Conversely, DEQ
argued that it had the delegated authority to issue the
permit under the Clean Water Act's National Pollution
Discharge Elimination System (NPDES) and ORS 468B.O35, by
which the state accepted that delegated
authority. Northwest Environmental Defense Center
I, 232 Or.App. at 622. Broadly stated for these
introductory purposes, the Corps has exclusive authority
under section 404 of the Clean Water Act to regulate the
permitting of the "discharge of dredged or fill
material" into navigable waters. 33 USC § 1344(a).
Separately, the Environmental Protection Agency (EPA) has the
authority under section 402 of the Clean Water Act to
regulate the permitting of the "discharge of any
pollutant" into navigable waters. 33 USC §
1342(a)(1), (4). As part of the NPDES program, states also
have the delegated authority to administer their own permit
programs for the discharge of pollutants into navigable
waters. Id. § 1342(a)(3), (b).
Or.App. 825] In December 2009, we issued our opinion in
Northwest Environmental Defense Center I, which
addressed the 700-PM permit that DEQ issued in 2005. We
examined whether the small suction dredge mining that was
regulated by that 700-PM permit involved the discharge of
dredged material, exclusively regulated by the Corps, or the
discharge of pollutants, which can be regulated by the state.
232 Or.App. at 630. We concluded that small suction dredge
mining usually "involves the placement of dredged spoil
and mining tailings in piles and that such a discharge
constitutes the 'discharge of dredged material'"
that is regulated exclusively by the Corps. Id. at
643-44. However, we further concluded that small suction
dredge mining also involves the discharge of "turbid
wastewater-i.e., the discharge of water that
contains suspended solids." Id. at 644. We
determined that turbid wastewater sent further downstream is
a "pollutant" regulated by the EPA and, by federal
statutory delegation, the state. Id. at 644-45. We
noted that the problem was that the 2005 700-PM permit
regulated "all waste discharges from small
suction dredges, " which would include the regulation of
both the discharge of "dredged material" that piles
up in navigable waterways and turbid wastewater that
disperses water and suspended solids further downstream.
Id. at 645 (emphasis in original).
United States Supreme Court has held that the regulatory
authority granted to the Corps by section 404 (governing, in
part, the discharge of "dredged or fill material")
forecloses the EPA's authority to act under section 402
(governing the discharge of "any pollutant [s]").
Coeur Alaska, Inc. v. Southeast Alaska Conservation
Council, 557 U.S. 261, 274, 129 S.Ct. 2458, 174 L.Ed.2d
193 (2009) (stating that the Clean Water Act "is best
understood to provide that if the Corps has authority to
issue a permit for a discharge under § 404, then the EPA
lacks authority to do so under § 402"). As a result
of the encroachment of the 2005 700-PM permit on the
Corps' exclusive regulation of the discharge of dredged
material (even if the permit also regulated pollutants in the
form of turbid wastewater), we held that the permit exceeded
the state's "statutory authority to implement the
Clean Water Act." Northwest Environmental Defense
Center I, 232 Or.App. at 645.
Or.App. 826] Following our decision in Northwest
Environmental Defense Center I, the parties sought and
initially were allowed review by the Oregon Supreme Court. In
the meantime, after our decision, the 2005 700-PM permit
expired and was replaced by DEQ in July 2010 by a newly
issued 700-PM permit regulating small suction dredge mining.
Rather than exercising its rule-making authority, DEQ issued
the new permit as an "order in other than a contested
case." See ORS 468B.O5O(2) (giving DEQ
authority to issue certain permits by rule or order). The new
2010 permit, compared to the 2005 permit, focused on
regulating just the discharge of "visible
turbidity" in streams and narrowed the permit to respond
directly to our decision in Northwest Environmental
Defense Center I. DEQ stated in an accompanying fact
sheet that the 2010 permit was changed expressly to
"address  a pending Oregon Court of Appeals ruling
that DEQ had not adequately articulated the basis for prior
permit conditions and requirements."
result of the expiration of the 2005 permit, the issues in
Northwest Environmental Defense Center I were
rendered moot. Northwest Environmental Defense Center v.
Environmental Quality Commission, 349 Or. 246, 245 P.3d
130 (2010) (Northwest Environmental Defense Center
II). Accordingly, the Supreme Court dismissed the
petition for review. Id. At that time in our
history, our courts did not have the "judicial power
under the Oregon Constitution" to decide a moot case
even if the issues presented by the case were "capable
of repetition, yet evading review." Yancy v.
Shatzer. 337 Or. 345, 363, 97 P.3d 1161 (2004),
overruled by Couev v. Atkins. 357 Or. 460, 520, 355
P.3d 866 (2015). Thus, the case in Northwest
Environmental Defense Center II concluded. 349 Or at
brings us to the current litigation, which in many ways is
"deja vu all over again" of the prior litigation.
Following DEQ's issuance of the 2010 700-PM permit, the
mining petitioners again challenged the small suction dredge
mining permit. This time, however, they filed a petition for
judicial review in the circuit court under ORS 183.484
challenging the permit (instead of filing directly [285
Or.App. 827] with us as a rule challenge under ORS
183.400). In the operative petition, petitioners
ultimately asserted two claims for relief alleging several
violations of law. In their first claim for relief,
petitioners alleged that DEQ violated federal law in issuing
the 2010 700-PM permit because- petitioners claimed again-the
permit regulated the discharge of dredged material that was
exclusively regulated by the Corps under section 404 of the
Clean Water Act, and, accordingly, was not within the EPA and
the state DEQ's delegated regulatory authority over the
discharge of pollutants under section 402. As part of their
first claim, petitioners also contended that DEQ violated
state water quality laws in issuing the 2010 700-PM permit.
In their second claim for relief, petitioners alleged that a
settlement agreement reached between DEQ and NEDC that
related to the 2010 700-PM permit violated Oregon law,
because it was a privately negotiated agreement that resolved
issues that were required to be addressed publicly through
either administrative rule making or procedures applicable to
the issuance of agency orders. Petitioners sought, among
other things, to set aside the 700-PM permit and a
declaration that the settlement agreement could not be used
to issue any new suction dredge mining permit. DEQ moved for
summary judgment on all of petitioners' claims for
relief, and petitioners cross-moved for summary judgment on
most, but not all, of their claims.
trial court granted summary judgment to DEQ, agreeing with
DEQ on nearly every issue. There are four issues that are
relevant to this appeal. First, the trial court concurred
with DEQ that it had the delegated authority under section
402 of the Clean Water Act to issue the 2010 700-PM permit to
regulate turbid wastewater. Second, the trial court agreed
with DEQ that it had the authority under state law to issue
the 700-PM permit. Third, the trial court also agreed with
DEQ that substantial evidence supported DEQ's decision to
issue the 700-PM permit. Fourth, and [285 Or.App. 828]
finally, the trial court concluded that DEQ had authority to
reach a settlement agreement with NEDC that resolved pending
litigation, and that DEQ did not have to reach that agreement
through either rule-making or contested-case procedures.
After the parties stipulated to the resolution of one
outstanding issue, the trial court granted DEQ summary
judgment on all claims and denied petitioners summary
judgment on all claims.
then appealed the trial court's judgment. As happened
previously with respect to the 2005 permit, the 2010 700-PM
permit expired during the pendency of the appeal and a new
2015 permit was issued. Eastern Oregon Mining Association
v. DEQ.273 Or.App. 259, 261, 361 P.3d 38 (2015)
(Eastern Oregon Mining Assoc. I), rev'd and
rem'd,360 Or. 10, 376 P.3d 288 (2016) (Eastern
Oregon Mining Assoc. II). However, unlike during the
prior Northwest Environmental Defense Center
litigation, when, under Yancy, the appellate courts
lacked the judicial power to decide moot cases, by the time
we issued our decision in Eastern Oregon Mining Assoc.
I, the Supreme Court had overruled Yancy,
holding in Co ...