359 P.3d 526
Or. Ct. App.2015Background
- Defendant was observed operating a gasoline-powered suction dredge on the Rogue River on two days in Sept. 2011; he admitted using the dredge and moved about 0.10 cubic yards of riverbed.
- DEQ rules required an NPDES 700‑PM permit to operate a suction dredge; defendant did not have that permit.
- State charged defendant with second‑degree unlawful water pollution under ORS 468.943 for violating ORS 468B.050 by operating an industrial operation without an authorized permit.
- Defendant demurred, arguing the information failed to state an offense; the trial court denied the demurrer and, after a stipulated‑facts trial, convicted him and sentenced him to probation.
- On appeal defendant renewed two main arguments: (1) DEQ lacked authority to issue the NPDES 700‑PM permit (so failure to obtain it cannot support a crime); and (2) suction dredging does not cause a “discharge” or “addition” into the water.
- The appellate court reviewed denial of the demurrer as a question of law and considered only the face of the charging instrument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether information stated an offense by tracking statute | Information tracks ORS 468.943/468B.050; alleges criminal negligence and unpermitted operation | Demurrer: charging instrument fails because permit alleged is invalid or inapplicable | Held: Information sufficiently tracked statutory language and stated the elements of the offense |
| Whether DEQ’s lack of authority to issue NPDES 700‑PM negates criminal liability | State: absence of a valid permit allegation is a proper allegation; ORS 468B.050 prohibits unpermitted activity regardless of permit‑issuance questions | Defendant: if DEQ cannot lawfully issue the permit, failing to obtain it cannot be criminal | Held: Court rejected this as a demurrer ground; challenge to permit authority raises factual/legal issues not resolvable on face of charging instrument |
| Whether suction dredging causes an actionable “discharge” or “addition” | State: suction dredging creates turbidity and may constitute a discharge requiring a permit | Defendant: dredging merely removes and returns water without adding pollutants | Held: Court declined to resolve on demurrer; factual question extrinsic to charging instrument and unsuitable for demurrer |
| Appropriate procedural vehicle for defendant’s claims | State: demurrer is improper for disputes about permit validity or factual discharge effects | Defendant: raised those issues by demurrer | Held: Demurrer was not appropriate to resolve these factual/authority disputes; denial was correct |
Key Cases Cited
- State v. Huckins, 176 Or App 276 31 P3d 485 (court reviews demurrer denial for legal error)
- State v. Cervantes, 232 Or App 567 223 P3d 425 (on demurrer, court may consider only the indictment's face)
- State v. Fair, 326 Or 485 953 P2d 383 (indictment sufficient when it tracks statutory language)
- Kinross Copper Corp. v. State of Oregon, 160 Or App 513 981 P2d 833 (rejecting takings claim based on alleged right to discharge mining wastes into state waters)