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Ciecko v. Department of Land Conservation and Development

Court of Appeals of Oregon

March 7, 2018

Charles CIECKO and David Yamamoto, Petitioners,
v.
DEPARTMENT OF LAND CONSERVATION AND DEVELOPMENT, Respondent.

          Argued and submitted November 2, 2016

          David N. Allen argued the cause and fled the briefs for petitioners.

          Cecil A. Reniche-Smith argued the cause for respondent. On the brief was Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Judy C. Lucas, Assistant Attorney General.

          Wayne Belmont fled the brief amicus curiae for Lincoln County, Curry County, Coos County, Douglas County, Tillamook County, and Clatsop County.

          Lisa Rackner and McDowell Rackner & Gibson PC, Kent Bressie, Stephen W. Miller, Danielle Pineres and Harris, Wiltshire & Grannis LLP fled the brief amicus curiae for GCI Communication Corp., North American Submarine Cable Association, and Oregon Fishermen's Cable Committee Inc.

          William L. Rasmussen fled the brief amicus curiae for Oregon Wave Energy Trust.

          Before Garrett, Presiding Judge, and Hadlock, Judge, and James, Judge. [*]

         Amendments to OAR 660-036-0005, effective October 7, 2013, held invalid.

         [290 Or.App. 656] Case Summary: Petitioners bring a direct challenge to the validity of a rule adopted by the Department of Land Conservation and Development, OAR 660-036-0005, which amends Part Five of the 1994 Territorial Sea Plan after recommendations by the Ocean Policy Advisory Council (OPAC). It is undisputed by the parties that the Land Conservation and Development Commission (the commission) modified OPAC's proposed amendments. Petitioners contend that the commission failed to comply with the applicable rulemaking procedures set out in ORS 196.471 when it adopted modified amendments to OAR 660-036-0005. Held: As prescribed in ORS 196.471(3), the commission was required to return the recommended amendments to OPAC for revision. The commission did not follow that procedure. Instead, the commission adopted modified and supplemented amendments, which it was not authorized to do and which did not comply with the applicable rulemaking procedures set out in ORS 196.471.

         Amendments to OAR 660-036-0005, effective October 7, 2013, held invalid.

         [290 Or.App. 657] JAMES, J.

         Petitioners bring a direct challenge to the validity of a rule adopted by the Department of Land Conservation and Development (DLCD), OAR 660-036-0005, which amends Part Five of the 1994 Territorial Sea Plan (TSP) after recommendations by the Ocean Policy Advisory Council (OPAC). Petitioners contend that the Land Conservation and Development Commission (the commission) failed to comply with the applicable rulemaking procedures set out in ORS 196.471 when it adopted modified amendments to OAR 660-036-0005.[1] We agree, and accordingly, hold the amendments to OAR 660-036-0005, effective October 7, 2013, invalid.

         In 1991, the Oregon Legislative Assembly established the Ocean Policy Advisory Council (OPAC). The legislature statutorily tasked OPAC with the preparation of the Territorial Sea Plan (TSP), the planning and management guidelines for Oregon's territorial sea. The territorial sea includes the waters and seabed extending three geographical miles seaward from the coastline. While the 1991 Legislative Assembly made OPAC responsible for developing the TSP, it designated DLCD as the "primary" agency and tasked the commission with certain functions connected with the adoption and amendment of the TSP. ORS 196.435 (1991), amended by Or Laws 2003, ch 744, § 7; ORS 196.471 (1991), amended by Or Laws 2003, ch 416, § 1.

         In 2008, upon executive order from Governor Kulongoski, OPAC started to work on Part Five of the TSP. Part of the initial development of Part Five included bringing in voices from the ocean renewable energy sector to advise OPAC on wave energy projects and siting along the Oregon coast. In November 2009, the commission adopted Part Five: Uses of the Territorial Sea for the Development of Renewable Energy Facilities or Other Related Structures, Equipment or Facilities and filed OAR 660-036-0005.

         [290 Or.App. 658] Beginning in 2010, a comprehensive and thorough effort was undertaken to amend Part Five to include maps, data, text, and definitions. After several years of researching and holding public meetings to gather information regarding possible TSP amendments to designate wave energy siting areas along the Oregon coast, OPAC submitted its recommendations to the commission after OPAC's January 3 and 4, 2013, meeting. Between January 22 and 24, 2013, the commission held its own public meetings on the recommended amendments. During this time, the commission also made findings, modified and supplemented OPAC's recommended amendments, and then adopted the modified amendments. The final amendments adopted by the commission differed from the recommendations provided by OPAC in several respects.

         First, OPAC recommended that the amendments not delineate specific buffer zone distances between possible renewable energy sites and "important, sensitive, and unique resources" identified in Part Five coastal maps, but rather rely on the Oregon Department of Fish and Wildlife (ODFW) to determine specific buffer zone distances on a case-by-case basis. ODFW advocated for the delineation and use of specific buffer zone distances for selected habitat areas where permanent delineation could be supported by current scientific consensus. After finding that the delineation of specific buffer zone areas comports with statewide planning Goal 19, the commission modified OPAC's recommendation to incorporate the delineation of specific buffer zone areas in limited areas located near renewable energy facility sites.

         Second, OPAC recommended adding text to the description of the Joint Agency Review Team (JART) process to make it "inclusive, especially [of] people in the impacted area." The commission determined that the OPAC description of "people in the impacted area" was imprecise and unclear. The commission rejected OPAC's recommendation and, consequently, Part Five does not include OPAC's recommended text. Rather, the commission expanded the text explaining JART membership to include, "Statewide and local organizations and advisory committees-including but not limited to those addressing [290 Or.App. 659] areas important to fisheries, ecological resources, recreation and visual impacts." Moreover, the commission, in subparagraph B(3)(a)(3) of Part Five, included text allowing the Department of State Lands to invite representatives of local jurisdictions and to specifically invite such representatives from "affected communities" to engage in the JART process.

         Third, OPAC recommended including text related to the Proprietary Use and Management Area (PUMA) standards requiring that regulating agencies only accept renewable energy facility applications that have "been agreed to by the authorized users." The commission determined that this recommended amendment created a potential delegation of authority issue under the Delegation Clause, Article I, section 21, of the Oregon Constitution. The commission rejected OPAC's recommendation determining that "Part Five cannot delegate to 'authorized users' whether regulating agencies may accept renewable energy facility applications in the Proprietary Use and Management Area."

         Fourth, and arguably petitioners' primary objection, concerns OPAC's recommended policy on Renewable Energy Facility Suitability Study Area (REFSSA) sites. OPAC recommended that the policy provide for flexible REFSSA siting to allow developers and local stakeholders to collaborate on the micro-siting of a REFSSA project within a larger planning area. OPAC's policy included the recommendation that Part Five, Appendix B (map) designate no more than five percent of the total area of the territorial sea as REFSSA, and that renewable energy facility development be limited to a total area not to exceed two percent of the territorial sea. In accordance with OPAC's recommended REFSSA policy, three sites received a majority of yes votes from OPAC and were designated REFSSA: Lakeside revised, Camp Rilea alternate (lnm), and Nearshore Reedsport alternate. The commission determined:

"[T]he three sites that OPAC recommended as REFSSA amounted to approximately one percent of the total territorial sea area, one-fifth the size of the proposed cap, and too small and too few to provide adequate opportunity for testing or development of most marine renewable technologies. *** [T]he issue with the OPAC recommendations was not [290 Or.App. 660] that they do not carry out the policies in ORS 196.405 to 196.505, but that they were so protective of marine renewable resources that they did not, in the Commission's view, provide a sufficient (but limited) opportunity for marine renewable energy resources within the territorial sea."

(Emphasis omitted.) Instead, the commission "favored implementation of the flexible siting policy" and generally accepted the OPAC recommendations for limitations on the amount of area designated REFSSA and the total ...


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