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Citizens for Responsible Development In Dalles v. Wal-Mart Stores, Inc.

Court of Appeals of Oregon

December 12, 2018

CITIZENS FOR RESPONSIBLE DEVELOPMENT IN THE DALLES, Petitioner,
v.
WAL-MART STORES, INC.; and Department of State Lands, Respondents.

          Argued and Submitted May 9, 2016

          Department of State Lands APP0043798RF

          Karl G. Anuta argued the cause for petitioners. Also on the briefs were Law Office of Karl G. Anuta, P.C.; Cary L. Allen and Law Office of Cary Allen, LLC.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent Department of State Lands. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Gregory S. Hathaway and Hathaway Koback Connors LLP fled the brief for respondent Wal-Mart Stores, Inc.

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

         Case Summary:

         Petitioner seeks judicial review of a final order of the Oregon Department of State Lands (DSL) that issued a permit to respondent authorizing respondent to fill or remove wetlands. Petitioner contends that, under ORS 196.825, a permit to fill or remove wetlands cannot be issued without an affirmative finding by DSL that the project for which the permit is sought will serve a public need. In its order, DLS found "[t]he record [to be] inconclusive with regard to whether the project" addressed a public need. DSL argues that its finding is sufficient because ORS 196.825(3) merely requires it to "consider" the public need for the proposed fill. Held: ORS 196.825(3) requires DSL to find that the public need predominates over the loss to the waters of the state caused by the proposed project before issuing a permit to fill or remove wetlands. Because DSL found that it was inconclusive whether the project would address a public need, DSL erred by granting the permit.

         Reversed and remanded.

         [295 Or.App. 311] ARMSTRONG, P.J.

         Wal-Mart Stores, Inc. (Walmart), sought to open a store in The Dalles on a site next to Chenoweth Creek, near the Columbia River. The site has wetlands dispersed across it. As relevant here, to facilitate the construction of a store, Walmart sought a joint permit from the Oregon Department of State Lands (DSL) and the U.S. Army Corps of Engineers to fill and remove some of the wetlands. DSL issued its permit, which required mitigation of the effects that the fill and removal of wetlands would have on the waters of the state. At the time that it issued the permit, DSL found that it was inconclusive whether the project would serve a public need or confer a public benefit. After subsequent administrative proceedings, DSL issued a final order granting the fill and removal permit. Petitioner seeks judicial review of that order, raising three assignments of error that, in essence, raise two issues, reprising arguments that it made below. We address only the first assignment of error. In that assignment, petitioner contends that, under ORS 196.825, a permit to fill or remove wetlands cannot be issued without an affirmative finding by DSL that the project for which the permit is sought will serve a public need. Thus, because DSL found that it was inconclusive whether the project would serve a public need, petitioner contends that DSL lacked authority to issue the wetland fill and removal permit.[1] For the reasons that follow, we agree with petitioner and, accordingly, reverse.

         Walmart sought to construct a Superstore in The Dalles. After evaluating a number of locations, Walmart selected a site next to Chenoweth Creek and near the Columbia River. The site is approximately 66 acres in size, 2.17 acres of which is comprised of wetlands, several of which are vernal pools in which a rare species of shrimp live. DSL issued Walmart a wetland fill and removal permit for the [295 Or.App. 312] site that included mitigation requirements and that made findings about the project, including:

"The record is inconclusive with regard to whether the project, for which the fill or removal is proposed, will address a public need. While there may be a market demand for the products and services offered by Walmart, the desire of Walmart to enter the market does not necessarily constitute a public need. As with many commercial endeavors that don't address a public need, this consideration was not a factor in support of this affirmative determination.
''Likewise, the record is inconclusive regarding the social, economic or other public benefits that may result from the proposed project. The record shows a short-term economic benefit derived from project and infrastructure construction. However, as to long-term net economic benefit to the public from the development of this retail project, the information in the record is inconclusive. Overall, this consideration was not a factor in support of this affirmative determination.
"While the record is inconclusive with respect to public need, public benefits, and economic costs to the public if the fill or removal is not accomplished, the applicant's alternative analyses were persuasive and the impacts to water of the state were minimized to the extent practicable and will be mitigated.
"The proposed fill or removal conforms to sound polices of conservation through avoidance and minimization of impacts and the applicant is providing sufficient mitigation."

(Emphases added.)

         Petitioner filed a notice of appeal to the permit and, later, a supplemental notice of appeal, requesting a contested case hearing and raising, among other things, the contention that Walmart had failed to meet its burden to demonstrate that the project would fulfill a public need. Petitioner moved for summary determination in its favor, contending that the wetland fill and removal permit statute, ORS 196.825, as construed by the Oregon Supreme [295 Or.App. 313] Court in Morse v. Department of State Lands, 285 Or. 197, 590 P.2d 709 (1979), required DSL to make an affirmative finding that the project would serve a public need for DSL to be authorized to issue the permit. The ALJ disagreed with petitioner's construction of ORS 196.825 and denied its motion. After a contested case hearing, the ALJ issued a proposed order granting the wetland fill and removal permit. Petitioner filed exceptions to the proposed order, raising, among others, the same contention that it had raised in its motion for summary determination, viz., DSL lacked authority to issue the permit absent a finding of public need. DSL rejected petitioner's contentions and issued a final order granting the permit.

         Petitioner seeks judicial review of the final order, contending that the statutes governing fill and removal permits require DSL to make a finding that the project serves a public need for DSL to issue a permit to fill or remove wetlands. Petitioner ...


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