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Eastern Oregon Mining Association v. Department of Environmental Quality

Court of Appeals of Oregon

June 1, 2017

EASTERN OREGON MINING ASSOCIATION; Guy Michael; and Charles Chase, Petitioners-Appellants,
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. WALDO MINING DISTRICT, an unincorporated association; Thomas A. Kitchar; and Donald R. Young, Petitioners-Appellants,
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.

          Submitted on remand August 23, 2016.

          Argued on remand May 4, 2017.

         Marion County Circuit Court 10C24263, 11C19071 Courtland Geyer, Judge.

         On remand from the Oregon Supreme Court, Eastern Oregon Minins Association v. DEQ. 360 Or. 10, 376 P.3d 288 (2016).

         [285 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.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case 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 permit.

         Portion 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 ORS 14.175.

         [285 Or.App. 823] SHORR, J.

         This 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 Act[1] 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.

         This 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)[2] 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.[3]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. at 623.

         In the 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.[4] 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).

         [285 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).

         The 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.

         [285 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."

         As a 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 246.

         That brings us to the current litigation, which in many ways is "deja vu all over again"[5] 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).[6] 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.

         The 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.

         Petitioners 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 ...


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