504 P.3d 15
Or. Ct. App.2021Background
- In 2001 DEQ adopted a Tillamook Bay TMDL setting fecal‑coliform load allocations and wasteload allocations; a draft was circulated and EPA approved a final TMDL in July 2001.
- Plaintiff (Hayes Oyster Co.) owns oyster beds in Tillamook Bay, including areas where harvesting was prohibited or conditionally approved due to bacteria levels.
- Plaintiff received draft materials and attended at least one DEQ meeting but did not submit formal comments; it continued to experience harvest restrictions after the TMDL.
- In May 2017 plaintiff sued seeking (a) judicial review under ORS 183.484 (APA) of the TMDL, (b) a declaratory judgment invalidating WLAs/LAs, (c) a public nuisance tort remedy, and (d) an order under ORS 183.490 to compel DEQ to adopt/enforce a zero dairy LA.
- The trial court granted DEQ summary judgment on multiple grounds (lack of jurisdiction under the APA, claims barred by statutory limitations and APA exclusivity); plaintiff appealed.
- The Court of Appeals held plaintiff’s claims were time‑barred: the 60‑day APA window for ORS 183.484 elapsed in 2001, the ORS 183.490 claim was barred by the 10‑year residual statute (plaintiff knew or should have known before May 2007), and the remaining claims were barred by their applicable limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of ORS 183.484 petition — did 60‑day period start? | 60‑day never began because DEQ cannot produce definitive mailed final‑order copies; Hayes also contends due process required direct notice to it. | DEQ mailed required notice to parties in 2001; retention rules explain absence of records; 60‑day period ran in 2001. | Petition untimely; no triable issue that DEQ sent notice and due process did not require individualized notice to Hayes. |
| ORS 183.490 (compel agency action) — statute of limitations | Claim not time‑barred; remedy available despite age of TMDL. | Residual 10‑year statute (ORS 12.140) applies; discovery rule shows Hayes knew or should have known before May 2007. | Claim time‑barred under 10‑year residual statute; discovery rule tolled no later than 2007. |
| Public nuisance / collateral tort — is TMDL a rule or order permitting tort suit? | TMDL is a de facto rule change allowing collateral tort claims (not exclusively under APA). | APA exclusivity and OTCA two‑year limitations bar tort claims; even if collateral attack possible, limitations apply. | Public nuisance claim dismissed as time‑barred/exclusive to APA remedies; plaintiff did not press a timely OTCA argument on appeal. |
| Declaratory judgment invalidating WLAs/LAs — jurisdiction/timeliness | Court has jurisdiction to grant declaratory relief and TMDL WLAs are invalid. | Claim barred by the same 10‑year residual limitations and lacks independent jurisdictional basis. | Declaratory claim dismissed as time‑barred; no independent jurisdiction for late challenge. |
Key Cases Cited
- Jones v. General Motors Corp., 325 Or 404 (summary judgment standard)
- Ososke v. DMV, 320 Or 657 (60‑day filing requirement under ORS 183.484 is jurisdictional)
- Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306 (notice must be reasonably calculated to inform interested parties)
- Rice v. Rabb, 354 Or 721 (application of the discovery rule to statutes of limitations)
- Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270 (objective standard for when plaintiff should have discovered claim)
- T. R. v. Boy Scouts of America, 344 Or 282 (limitations run when plaintiff discovers defendant's causal role)
- Tolbert v. First National Bank, 312 Or 485 (a party's flat disbelief of testimony cannot create a triable issue)