Waterkeeper v. Port of Coos Bay Or., 423 P.3d 60

Background

Port of Coos Bay applied for a removal‑fill permit to dredge 1.75 million cubic yards and create an access channel (the saltwater phase) for a proposed deepwater marine terminal; some construction (freshwater phase) was outside DSL jurisdiction.
DSL issued a permit with mitigation and conditions, noting it would not decide need for or benefits of potential LNG use.
Environmental groups (petitioners) challenged the permit, arguing DSL should have considered negative operational effects (e.g., ship traffic, spills) when applying ORS 196.825.
An ALJ upheld the permit; DSL adopted the ALJ’s findings; the Court of Appeals affirmed.
The Oregon Supreme Court reviewed de novo the meaning of the inexact statutory term “project” in ORS 196.825(1) and whether DSL was required to consider operational effects.

Issues

Issue	Petitioners' Argument	Respondents' Argument	Held
Scope of “project” in ORS 196.825(1): does it include post‑construction operations?	"Project" includes construction, existence, and operation; DSL must consider operational effects (ship traffic, spills).	"Project" refers to the removal/fill and related construction; does not require consideration of ongoing operations.	Court held “project” covers removal/fill and construction but not indefinite operational effects.
Whether DSL’s analysis was impermissibly “lopsided” (considering positive operational benefits but not negative operational harms)	Selectively considering economic benefits without negative operational harms is arbitrary and conflicts with statutory balancing (and Morse).	Statute explicitly directs consideration of likely public benefits and economic costs of not approving; DSL’s focus on benefits is consistent with statutory criteria.	Court held DSL’s analysis was consistent with ORS 196.825(2) and not arbitrary.
Whether Morse requires broader inquiry into operational impacts	Petitioners read Morse to require balancing benefits vs harms of the underlying project as a whole, including operations.	Respondents say Morse is inapplicable or distinguishable and the statute has been amended since Morse to emphasize economic factors.	Court found Morse factually and legislatively distinguishable and not controlling here.
Whether DSL must consider evidence beyond ORS 196.825(2) factors when relevant to policy determinations in (1)	Subsection (1)’s policy goals require DSL to consider operational effects if relevant; otherwise (1) would be meaningless.	Subsection (2) lists the primary, specific factors to be considered; (1) supplies policy framework and is satisfied by weighing the (2) factors.	Court held DSL need not consider operational effects beyond the (2) criteria; DSL’s weighing of effects on navigation/fishing/recreation satisfied (1).

Key Cases Cited

State v. Gaines, 346 Or. 160 (Or. 2009) (framework for interpreting inexact statutory terms).
Bergerson v. Salem‑Keizer School Dist., 341 Or. 401 (Or. 2006) (classification of statutory terms as exact, inexact, or delegative).
OR‑OSHA v. CBI Services, Inc., 356 Or. 577 (Or. 2014) (application of Gaines review approach).
Morse v. Oregon Division of State Lands, 285 Or. 197 (Or. 1979) (prior interpretation of removal‑fill statute; distinguished).
State v. Cloutier, 351 Or. 68 (Or. 2011) (dictionary meanings depend on statutory context).
Bobo v. Kulongoski, 338 Or. 111 (Or. 2005) (use of legislative committee statements to infer intent).
Comcast Corp. v. Dept. of Rev., 356 Or. 282 (Or. 2014) (method for ascribing plain meaning using dictionaries).