309 P.3d 1103
Or. Ct. App.2013Background
- Bridgeview Vineyards (petitioners) sought an emergency authorization from the Division of State Lands (DSL) in Jan. 1999 to place riprap along Sucker Creek to prevent erosion; DSL denied the request for lack of an emergency and because a permit was required for work in a salmonid stream.
- Petitioners earlier obtained partial summary judgment in the circuit court; this court in Bridgeview Vineyards, Inc. v. State Land Board construed ORS 196.810 and ORS 196.905 (1997) and remanded, holding a permit generally required for ≥50 cubic yards in salmonid streams and identifying unresolved factual issues (volume, location, and exemption applicability).
- On remand DSL moved repeatedly for summary judgment on administrative review (Claim 1) and seven related civil claims (Claims 2–8) arising from 1998 repair activities; petitioners sought declaratory relief and damages, including § 1983, state-constitutional, takings, and malicious-prosecution claims.
- The circuit court conducted a "substantial evidence" review of DSL’s administrative order based on the summary-judgment record, granted summary judgment to DSL on Claim 1 and ultimately dismissed all civil claims; petitioners appealed.
- The Court of Appeals holds that under ORS 183.484 (as interpreted in Norden) a circuit court reviewing an agency order in other than a contested case must allow parties to develop a full record (including an evidentiary hearing when material facts are disputed); it reverses/remands Claim 1 and reverses/remands Claims 2 and 8; it affirms dismissal of Claims 3–7.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the circuit court must permit supplementation of the record (including evidentiary hearing) when reviewing an agency order in other than a contested case and material facts are disputed | Norden and G.A.S.P. require the court to permit development of a full record — including testimony — before conducting substantial-evidence review | DSL: parties already had discovery and could submit evidence at summary judgment; no hearing required unless parties concede record complete | Held for plaintiff: court must allow development of a whole record; remand for evidentiary hearing on Claim 1 |
| Whether summary judgment on civil Claims 2–8 was proper because facts show petitioners needed a permit in 1998 | Petitioners: factual disputes (location of gravel, converted-wetland status, volume, co-location, source of rock) preclude summary judgment and are material to exemptions/exceptions | Respondents: Bridgeview and the record establish permit was required and no exemption applies; thus summary judgment appropriate | Mixed: Affirmed as to Claims 3–7; reversed/remanded as to Claims 2 and 8 (material disputes) |
| Whether petitioners’ Jan. 1999 emergency activity required a permit (volume and in-stream placement) | Kerivan’s affidavits: emergency existed; intended riprap was 40–45 cu. yd., placed upland / in flood-affected area (not in streambed); exemptions apply | DSL: facts do not support emergency or exemption; the agency reasonably concluded permit required | Not finally decided — factual disputes warrant evidentiary hearing; Claim 1 reversed/remanded for full record and substantial-evidence review |
| Whether probable cause existed for criminal prosecution (malicious-prosecution claim) | Kerivan: defendants lacked probable cause to bring charges given disputed facts about where material came from and whether a permit was required | Respondents: because petitioners needed a permit in 1998, probable cause existed for prosecution | Reversed/remanded: probable-cause determination depends on disputed facts for trial (Claim 8) |
Key Cases Cited
- Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251 (Or. Ct. App.) (appellate decision construing ORS 196.810 and 196.905 and remanding for factual development)
- Norden v. Water Resources Dept., 329 Or 641 (Or. 1999) (circuit court must allow parties to develop a full record when reviewing an agency order in other than a contested case)
- G.A.S.P. v. Environmental Quality Commission, 198 Or App 182 (Or. Ct. App.) (reversing where circuit court refused discovery and record development before substantial-evidence review)
- Coquille School District 8 v. Castillo, 212 Or App 596 (Or. Ct. App.) (parties may develop the record via summary-judgment submissions where both sides concede the record is complete)
- Hampton Tree Farms, Inc. v. Jewett, 320 Or 599 (Or. 1996) (standard for viewing summary-judgment record in favor of nonmoving party)
- Boise Cascade Corp. v. Board of Forestry, 164 Or App 114 (Or. Ct. App.) (takings claim ripeness requires final agency decision)
- Gustafson v. Payless Drug Stores, 269 Or 354 (Or. 1973) (elements of malicious-prosecution claim; probable cause is a factual question)