Noble v. Department of Fish & Wildlife
250 Or. App. 252
| Or. Ct. App. | 2012Background
- Petitioners own property on a small stream near Oregon City and challenge ODFW's final order approving fishways at two downstream dams (Lytle and Stoyan).
- ODFW concluded that fish passage is required only when there is water moving through the channel-spanning fishways, not during stored-water periods behind the dams.
- Dams were constructed without permits but WRD later issued permits; WRD requires outlet pipes and fish passage facilities approved by ODFW.
- Lytle and Stoyan each store up to one acre-foot; Lytle's outlet is about 18 inches below its fishway; Stoyan's outlet location is not specified.
- ODFW determined native migratory fish (cutthroat trout) are present and required passage; the fishways at issue are channel-spanning (not partial ladders).
- ODFW interpreted streamflow as water moving through the system (over the dam and through the fishways), excluding water behind the dam that does not reach downstream, and approved the channel-spanning fishways accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ODFW properly construed the design streamflow range for channel-spanning fishways. | petitioners argue ODFW misread 635-412-0035(2)(a) to exclude stored water. | ODFW says design streamflow range applies to the overall flows through the dam; stored water behind the dam is not part of streamflow for channel-spanning fishways. | ODFW's interpretation is plausible and adopted. |
| Whether streamflow includes stored water behind the dams. | petitioners contend stored water should count toward streamflow. | streamflow means water moving through the system, not stored behind the dam. | Yes; streamflow excludes stored water behind the dam. |
| Whether year-round fish passage is required for channel-spanning fishways. | ODFW must provide year-round passage or specify life-history periods. | Year-round means whenever water flows through the channel-spanning fishways; life-history periods not required for channel-spanning fishways. | ODFW's interpretation is plausible; year-round means whenever water flows through the fishways. |
| Whether ODFW's rules are inconsistent with ORS 509.585. | Rules require passage only when water flows over spillways; this would under-fulfill the statute. | Rules provide adequate criteria for channel-spanning fishways and do not require artificial mimicry of non-dam passage; ODFW is authorized to determine adequacy. | Rules are not inconsistent with the statute. |
Key Cases Cited
- Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 (1994) (agency interpretation affirmed when plausible and not inconsistent with rule or law)
- State v. Hogevoll, 348 Or 104 (2010) (analytical framework for interpreting agency rules; text and context first)
- Armstrong v. Asten-Hill Co., 90 Or App 200 (1988) (substantial evidence standard; court defers to agency on factual findings)
- Willamette Oaks, LLC v. City of Eugene, 232 Or App 29 (2009) (interpretation of statutory/textual context; agency intent)