Eastern Oregon Mining Ass'n v. Department of Environmental Quality, 360 Or. 10

Background

Petitioners are suction-dredge miners who challenged DEQ’s 2010 five-year general permit (issued as an order in other than a contested case) regulating suction-dredge mining and requiring compliance with Clean Water Act § 402.
The 2010 permit replaced an earlier 2005 permit that had been litigated; that challenge was dismissed as moot after the 2005 permit expired and DEQ issued the 2010 permit.
Petitioners sought judicial review in Marion County Circuit Court under ORS 183.484, raising federal- and state-law authority claims and a substantial-evidence claim; portions were resolved for DEQ and judgment entered for DEQ in 2014.
Petitioners appealed to the Court of Appeals; while the appeal was under advisement the 2010 permit expired and DEQ issued a new five-year permit, prompting DEQ to move to dismiss the appeal as moot.
Petitioners argued the case fit ORS 14.175 (capable of repetition yet likely to evade review) so it remained justiciable despite mootness; the Court of Appeals dismissed as moot and held ORS 14.175 did not apply.
The Oregon Supreme Court granted review to decide mootness, applicability of ORS 14.175, and whether a subsequent legislative moratorium barred review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the appeal moot after the 2010 permit expired?	Not moot: underlying legal error persists and affects later permits.	Moot: the challenged 2010 order expired so any decision would have no practical effect.	Moot: challenge to that specific order is moot because no order remains to affirm, reverse, or remand.
Does ORS 14.175 allow review despite mootness (capable of repetition / continuing policy)?	Yes: petitioners have standing; the practice is capable of repetition and continues in effect.	DEQ did not contest standing/capability but argued the claim is not likely to evade review.	ORS 14.175 applies: petitioners satisfy all three statutory requirements.
Is the challenge "likely to evade judicial review" under ORS 14.175(3)?	Yes: challenges to orders in other than contested cases commonly take five years or more and thus evade review before permit expiration.	No: cases can be litigated within five years; petitioners could expedite or reuse prior work to challenge new permits more efficiently.	Likely to evade review: the Court focuses on the category of cases and finds review of orders in other than contested cases often takes five years or longer.
Should the court decline to exercise discretion under ORS 14.175 because of the legislative moratorium?	(Implicit) Moratorium does not foreclose judicial review of challenges to DEQ practice.	DEQ argued moratorium might make review unnecessary.	No dismissal on moratorium grounds: scope unclear and moratorium does not cover all suction-dredge activity, so it does not preclude exercising discretion to hear the case.

Key Cases Cited

Couey v. Atkins, 357 Or 460 (2015) (explains ORS 14.175 framework and discretionary nature of relief)
Brumnett v. PSRB, 315 Or 402 (1993) (mootness: dismissal when decision would have no practical effect)
Dept. of Human Services v. G. D. W., 353 Or 25 (2012) (mootness standard for administrative review)
Northwest Environmental Defense Center v. EQC, 349 Or 56 (2010) (prior challenge to suction-dredge permit dismissed as moot after permit expiration)
Broadway Cab LLC v. Employment Dept., 358 Or 431 (2015) (administrative-review timeline examples)
OR-OSHA v. CBI Services, Inc., 356 Or 577 (2014) (administrative-review timeline examples)
Noble v. Dept. of Fish and Wildlife, 355 Or 435 (2014) (administrative-review timeline examples)
Norden v. Water Resources Dept., 329 Or 641 (2000) (procedure for challenging orders in other than contested cases)