Noble v. Department of Fish & Wildlife
326 P.3d 589
| Or. | 2014Background
- Petitioners own upstream land with a stream historically supporting native migratory fish; downstream properties (Lytle and Stoyan) have small, privately maintained dams and ponds.
- WRD issued permits to Lytle and Stoyan allowing seasonal storage but requiring passage of "live flow," outlet pipes, and fish passage as determined necessary by ODFW.
- ODFW required fish passage; the dam owners built "channel-spanning fishways" (streambed ramps/weirs that pass fish only when water flows over the dam) and ODFW approved them without calculating the stream’s defined "design streamflow range."
- Petitioners challenged ODFW approvals, arguing ODFW violated its rule OAR 635-412-0035(2)(a) (fishways must provide passage at all flows within the design streamflow range) and ORS 509.585(2).
- ODFW defended a narrow reading of "streamflow" for channel-spanning fishways (flow only when water passes over the dam/fishway), so no separate design-flow calculation was needed.
- The Court of Appeals upheld ODFW; the Oregon Supreme Court reviewed and concluded ODFW’s interpretation was implausible and remanded for ODFW to calculate the design streamflow range and re-evaluate passage compliance.
Issues
| Issue | Plaintiff's Argument (Noble) | Defendant's Argument (ODFW) | Held |
|---|---|---|---|
| How to interpret OAR 635-412-0035(2)(a) requirement that "fishways shall provide fish passage at all flows within the design streamflow range" | "Design streamflow range" covers flows in the stream system (including water stored or released via outlet pipes); ODFW must calculate that range and ensure passage whenever streamflow falls within it | For channel-spanning fishways, "streamflow" means only water actually flowing over the dam/fishway; such structures operate whenever water is present, so separate design-flow calculation is unnecessary | Court held ODFW’s interpretation implausible; the rule requires ODFW to determine the design streamflow range and assess passage against it |
| Meaning of "year‑round fish passage" alternative in OAR 635-412-0035(1)(a) | Year‑round means passage throughout the year whenever streamflow (in the stream) is within the design range; ODFW cannot insert a flow-availability caveat | For channel-spanning fishways, year‑round can be read practically as passage whenever water actually flows through the fishway | Court held "year‑round" cannot be read to include a built‑in caveat tied to a fishway’s physical operation absent rulemaking; the ordinary meaning requires passage when streamflow is within the design range |
| Whether ODFW may exclude water stored behind a dam or released via outlet pipes from "streamflow" | Such components are part of streamflow and must be included when determining the design streamflow range for fish needs | Water stored or released through outlet pipes is not "moving in a defined bed" at the obstruction and is governed by WRD; ODFW may treat it as not part of the streamflow for OAR purposes | Court rejected ODFW’s exclusion as implausible in context; excluding those components would undermine biologically based passage requirements |
| Whether ODFW reasonably balanced competing statutes (fish-passage priority vs. small-pond owner protections) by its interpretation | ODFW cannot override the fish-protection mandate by adopting an interpretive shortcut; statutes are compatible and ODFW must implement fish-passage rules | ODFW argued its interpretation reasonably balances fish passage policy with statutes protecting small pond owners and WRD’s authority over outlet pipes | Court held the asserted balancing does not justify an interpretation that conflicts with ODFW’s own fish-need rule; any policy change requires formal rulemaking |
Key Cases Cited
- Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 (agency interpretation is entitled to deference if plausible)
- Gafur v. Legacy Good Samaritan Hospital, 344 Or 525 (agency interpretation inconsistent with rule context is erroneous)
- Burke v. Children’s Services Division, 288 Or 533 (administrative rule remains effective until changed by proper rulemaking)
- State v. Hogevoll, 348 Or 104 (statutory and regulatory interpretation principles)
- Noble v. Dept. of Fish and Wildlife, 250 Or App 252 (Court of Appeals decision below)