McNichols v. Dept. of Fish and Wildlife
308 Or. App. 369
| Or. Ct. App. | 2021Background
- ODFW and Canby Development executed a settlement permitting emergency-vehicle use of an ODFW conservation easement to access a proposed private subdivision.
- Michael McNichols, a long‑time Canby resident and recreational user of a walking trail along the easement, sued to challenge the settlement, alleging it would harm the easement’s natural character and his enjoyment.
- McNichols filed a combined APA (ORS ch. 183) petition for review and a declaratory judgment action (ORS ch. 28).
- The trial court dismissed for lack of standing under both the APA and the Uniform Declaratory Judgments Act (UDJA).
- On appeal, the court assumed arguendo the settlement could be an "order" under the APA but affirmed: McNichols’ allegations did not support a non‑speculative, legally cognizable injury and thus failed APA and UDJA standing tests.
- The court also rejected taxpayer standing (no alleged fiscal injury) and McNichols’ contention that Couey v. Atkins altered Oregon standing law to permit public‑interest suits here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| APA standing under ORS 183.480 (PETA factors) | McNichols said his aesthetic and recreational interests in the easement will be injured by emergency‑vehicle use and related development | ODFW said McNichols did not allege a direct, non‑speculative injury or any legal effect on him | No APA standing — allegations were speculative and did not show a legally cognizable injury |
| UDJA standing under ORS 28.020 | McNichols argued the settlement affects his legal relations and seeks a declaration | ODFW said injury must be real or probable and judicial relief must be able to rectify it | No UDJA standing — alleged harm was hypothetical, not real or probable |
| Taxpayer standing | McNichols cited Hanson for taxpayer standing | ODFW/Canby argued taxpayer standing requires personal fiscal injury | No taxpayer standing — no allegations of actual or potential adverse fiscal consequences |
| Effect of Couey v. Atkins on standing | McNichols argued Couey abrogated PETA and allows vindication of public interest here | Respondents contended Couey did not eliminate PETA’s standing requirements | Couey did not abrogate PETA; standing law remains unchanged for these claims |
Key Cases Cited
- People for Ethical Treatment v. Inst. Animal Care, 312 Or 95 (1991) (articulates APA standing factors requiring injury to a substantial interest).
- Cascadia Wildlands v. Dept. of State Lands, 365 Or 750 (2019) (aesthetic enjoyment can support standing where the challenged action causes a non‑speculative injury).
- MT & M Gaming, Inc. v. City of Portland, 360 Or 544 (2016) (UDJA requires claimed injury be real or probable and relief must be able to rectify it).
- Gruber v. Lincoln Hospital District, 285 Or 3 (1979) (taxpayer standing generally requires actual or potential adverse fiscal consequences to the plaintiff).
- Couey v. Atkins, 357 Or 460 (2015) (did not eliminate established standing requirements; does not authorize speculative public‑interest suits).