HAYES OYSTER COMPANY, Plaintiff-Appellant, v. DEPARTMENT OF ENVIRONMENTAL QUALITY and Richard Whitman, in his official capacity as its Director, Defendants-Respondents.
Tillamook County Circuit Court 17CV19059; A171318
Oregon Court of Appeals
Argued and submitted August 20, 2020, affirmed December 8, 2021, petition for review denied April 7, 2022 (369 Or 507)
316 Or App 186; 504 P3d 15
Mari Garric Trevino, Judge.
The Oregon Department of Environmental Quality (DEQ) issued a total maximum daily load (TMDL) for the Tillamook Bay Watershed in 2001. Plaintiff sought judicial review of that TMDL in 2017. On appeal, plaintiff challenges the trial court‘s conclusion that judicial review of a final order under the APA was unavailable, the trial court‘s granting of DEQ‘s motion for summary judgment as to plaintiff‘s claim for public nuisance, and the trial court‘s granting of DEQ‘s motions for summary judgment on plaintiff‘s claims for a declaratory judgment and direction to cоmpel DEQ to finalize the TMDL. Held: Plaintiff‘s claim under
Affirmed.
Thomas R. Benke argued the cause and filed the briefs for appellant.
Jona J. Maukonen, Assistant Attorney General, argued the cause for respondents. Also on the brief wеre Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
DeVORE, P. J.
Affirmed.
DeVORE,
The Oregon Department of Environmental Quality (DEQ) issued a total maximum daily load (TMDL) for the Tillamook Bay Watershed in 2001. A TMDL is the calculation of the maximum amount of a pollutant allowed to enter a waterbody so that the waterbody will meet and continue to meet water quality standards for particular pollutants. Plaintiff, which owns an oyster harvesting operation in the Tillamook Bay, sought judicial review of that TMDL in 2017. After earlier motions failed, the trial court granted summary judgment for DEQ on several grounds.
Plaintiff appeals, broadly arguing that the fecal coliform bacteria levels permitted in the TMDL violate the federal Clean Water Act,
When reviewing a trial court‘s grant of summary judgment, we view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the nonmoving party, here, plaintiff. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). Plaintiff‘s claims arise from its challenge to bacteria pollution limits set by DEQ in its Tillamook Bay Watershed TMDL, which, as noted, has been in effect since 2001.
REGULATORY BACKGROUND
TMDLs, such the Tillamook Bay Watershed TMDL, are a part of a multistep process required by the Clean Water Act to develop “comprehensive programs for preventing, reducing, or eliminating the pollution of” the state‘s navigable waters.
PROCEEDINGS
Plaintiff owns about 600 hundred acres of oyster plats in the Tillamook Bay and has been harvesting oysters in the area since the 1920s.
The Oregon Department of Agriculture (ODA) regulates commercial oyster harvesting in the area through its Tillamook Management Plan for Commercial Shellfish Harvesting (Management Plan), which is designed to cоmply with the U.S. Food and Drug Administration‘s National Shellfish Sanitation Program (NSSP) standards for commercial shellfish harvesting. The NSSP sets standards for fecal coliform bacteria levels in shellfish-harvesting waters. Fecal coliform bacteria are microscopic organisms in animal waste that can cause illness in humans. As a part of ODA‘s Management Plan, a portion of plaintiff‘s acreage is in a designated “Upper Bay Prohibited Area,” where commercial oyster harvesting is prohibited year round due to poor water quality, and another portion of plaintiff‘s acreage is in a “conditionally approved area,” where oyster harvesting is intermittently prohibited depending on water quality levels.
Consistent with the state‘s duties under the Clean Water Act,
Plaintiff filed the complaint in this case in May 2017. The core of plaintiff‘s challenge to the Tillamook Bay TMDL is that the WLAs and LAs are “not reasonably calculated to attain compliance with the water quality standard for all shellfish growing waters within Tillamook Bay” and thus violate the state‘s duties under the CWA. (Emphasis in plaintiff‘s second amended complaint.) Plaintiff argues that the load allocations did not, and continue not to, properly take into account pollution discharges from dairy farms and thus the WQMP does not include sufficient strategies to reduce the resulting bacteria‘s negative effect on water quality and oyster harvesting in the bay.
In plaintiff‘s second amended complaint, plaintiff asserted a claim for public nuisance, arguing that the TMDL was a “rule” under
The trial court denied both parties’ motions for summary judgment in part and granted DEQ‘s motion for summary judgment as to plaintiff‘s nuisance claim. The trial cоurt determined that the TMDL was not a “final order” as required to take jurisdiction under the APA because the 2001 TMDL did not seem to fully comport with the process for adopting a TMDL as established in 2002. That is, the trial court reasoned that the TMDL was not a “final order” because it was not “directed to a named person or persons” as required by the definition of “order“; it was not signed by DEQ‘s director; and DEQ did not have copies of the final TMDL as mailed to the necessary parties as required by the agency‘s 2002 regulations. Initially, the trial court concluded that the TMDL remained a “draft” that could not be time-barred as a “final order” under the APA. Later, because the trial court concluded that the TMDL was a nonfinal order and was “clearly not a ‘rule,’” the court also concluded that the APA‘s exclusivity provision as to review of orders barred plaintiff‘s public nuisance claim.3
Plaintiff subsequently filed a third amended complaint, asserting a declaratory judgment claim requesting that the court declare the WLAs invalid on the basis that plaintiff would suffer substantial and irreparable harm if interlocutory relief was not granted in accordance with the APA,
Both parties again filed cross-motions for summary judgment. The trial court granted DEQ‘s motion for summary judgment and dismissed both of plaintiff‘s claims. The trial court concluded that it lacked jurisdiction to review plaintiff‘s declaratory judgment claim, as neither the Declaratory Judgments Act,
On appeal, plaintiff challenges the trial court‘s conclusion that judicial review of a final order under the APA was unavailable, the trial court‘s granting of DEQ‘s motion for summary judgment as to plaintiff‘s claim for public nuisance, and the trial court‘s granting of DEQ‘s motions for summary judgment on plaintiff‘s claims for a declaratory judgment and direction to compel DEQ to finalize the TMDL. First, plaintiff assigns error to the trial court‘s conclusion that the Tillamook Bay TMDL is a nonfinal order. That is, as we understand the argument, plaintiff contends that the trial court erred in precluding it from pursuing judicial review under the APA as a final order in an other than contested case. Secоnd, plaintiff argues that the trial court erred in concluding that the TMDL was also not a “rule” subject to collateral attack through its claim for public nuisance. Third, plaintiff argues that the trial court erred in granting DEQ‘s motion for summary judgment on plaintiff‘s claim for declaratory judgment, asserting that the trial court did not lack jurisdiction to review the claim. Fourth, plaintiff argues that the trial court erred in granting DEQ‘s motion for summary judgment on its claim to compel DEQ action, arguing that the claim was not time-barred by any statute of limitations.
DEQ agrees with plaintiff initially that the TMDL should be viewed as a “final order,” but argues that the trial court correctly precluded review under the APA becаuse plaintiff did not initiate this action within 60 days of DEQ‘s notice to the necessary parties. DEQ renews its arguments that the remainder of plaintiff‘s claims—for public nuisance, for declaratory relief, and to compel agency action—are time-barred by the claims’ respective statutes of limitations.
As to plaintiff‘s first assignment of error, we conclude that the trial court erred to the extent that it found a genuine issue of material fact as to whether DEQ delivered a copy of the final TMDL to the necessary parties. However, because we determine that there is not a triable issue as to whether plaintiff failed to file its suit within the APA‘s 60-day deаdline, we ultimately conclude that the trial court did not err in precluding plaintiff‘s claim under
CLAIM UNDER ORS 183.484
In response to plaintiff‘s first assignment of error, DEQ renews its argument, among others, that the trial court lacked jurisdiction over plaintiff‘s petition for judicial review of the TMDL as a final order in an other than contested case because plaintiff‘s claim was untimely. Plaintiff argues that the 60-day period for bringing claims under
Petitions for judicial review under
DEQ is entitled to summary judgment on the basis that plaintiff did not timely file its claim if there is no genuine issue as to whether plaintiff failed to file its claim within 60 days of the final TMDL being served upon a necessary party. There is not a genuine issue of material fact (triable issue) where no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment. Jones, 325 Or at 407-08. The determination of whether there is a
Plaintiff argues that the evidence supports its contention that the 60-day deadline in
Plaintiff‘s first argument relates to the testimony of Eric Nigg, DEQ‘s Coordinator for the North Coast Basin, who was tasked with developing the Tillamook Bay TMDL. In a deposition, he testified that the department could not find a copy of the final TMDL it had sеnt to the parties involved in creating the TMDL. In a declaration, however, Nigg stated that agency practice at that time was to send notice of final TMDLs to all affected point-source permittees under the National Pollutant Discharge Elimination System (NPDES), nonpoint source designated management agencies (DMAs) identified in the TMDL, and persons who provided formal public comment on the draft TMDL. Nigg was “confident that DEQ sent notice of the final TMDL order” to each of those parties, despite DEQ‘s inability to locate copies of the letters over 15 years later.
In response, plaintiff submitted a declaration from its owner, Jesse Hayes, stating that he did not personally receive a copy of DEQ‘s June 2001 Tillamook Bay TMDL or a letter from DEQ‘s director sent to commentors in June 2001.
After evaluating that evidence submitted by both parties, we determine that there was not a triable issue as to whether DEQ delivered final notice of the TMDL; that is, the only permissible inference from the evidence presented was that DEQ did deliver such notice. DEQ had a duty to “notify the parties to a proceeding of a final order” in order to trigger the 60-day deadline to petition for judicial review of the order.
The undisputed evidence shows that plaintiff‘s owner knew that the TMDL process was occurring, attended at least one meeting where a draft of the TMDL was discussed, and had a copy of the draft TMDL in his possession. Yet, plaintiff‘s owner purposefully chose not to participate in the TMDL process because he believed that his “voice is not heard” by DEQ; he chose not to read a copy of the TMDL because he believed doing so was “not going to help [his] cause“; and he chose not to submit a formal comment on the draft TMDL.
Where plaintiff is not an entity directly regulаted by the effluent limits set forth in the TMDL, such as the listed point sources and DMAs, and did not alert DEQ that it wanted to be involved in the creation of the TMDL by submitting a formal comment, it is not a “party” that DEQ was required to formally notify when it issued the final version of the TMDL. Therefore, plaintiff‘s evidence that its owner did not receive formal
To reach a different conclusion, plaintiff and the trial court relied on the inference that a reasonable juror could assume that the agency would have kept a copy of such notice if it existed, such that the absence of that definitive record could indicate that notice of the final TMDL was never sent to the necessary parties. That inference, however, is not one that a reasonable juror would be entitled to make in light of DEQ‘s established retention period for documents relating to the TMDL process. A state agency is required to “destroy public records which have met the terms and conditions of their scheduled retention period.”
In this case, the TMDL was approved by the EPA in July 2001. Nigg declared, as the individual in charge of the TMDL process in 2001, that he was “confident” DEQ followed its normal process of sending the final version to the necessary parties. Plaintiff filed its petition for review in 2017. From that evidence, it is not reasonable to infer that the records relating to the 2001 TMDL would have been maintained past the point sometime in 2016 when DEQ was required to destroy such records.
Because it is not reasonable to rely on the absence of the record to infer that it never existed, the only remaining evidence available to show that DEQ never sent the required notice would be an inference that Nigg was not credible when he testified that he was confident that DEQ had sent such notice. Flat disbelief of presented testimony, however, is not enough to create a genuine issue of material fact. Tolbert, 312 Or at 495; Worman, 223 Or App at 233. On this record, the only evidence regarding whether DEQ triggered the 60-day period by failing to deliver final notice to all parties is Nigg‘s testimony that DEQ did send such notice in 2001. As a consequence, the date of plaintiff‘s petition for review in May 2017 was well beyond the 60-day jurisdictional requirement for review of an agency action in an other than contested case.
As for plaintiff‘s second argument, plaintiff‘s evidence does not create a triable issue that, under the Due Process Clause, plaintiff was a party to which DEQ must show it delivered notice of the final TMDL before the 60-day timeline expired. The implied right of notice in the Due Process Clause of the Fourteenth Amendment requires that an agency‘s notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Tr. Co., 339 US 306, 314, 70 S Ct 652, 94 L Ed 865 (1950). Plaintiff relies on that standard from Mullane to argue that, in addition to DEQ‘s statutory duty to send notice, DEQ was required to notify plaintiff of the final TMDL‘s substance to satisfy plaintiff‘s due process rights.
Plaintiff relies on Brown v. City of Salem, 251 Or 150, 444 P2d 936 (1968), but, as Brown points out, Mullane dealt with the notice that must be given of judicial proceedings between private parties. As with other aspects of due process, the extent of notice required by the Due Process Clause varies with the type of proceeding and the type of interest involved. Mt. Sexton Properties v. Dept. of Rev., 306 Or 465, 479, 760 P2d 1320 (1988). Due process requires the fullest notice where litigation over a plaintiff‘s individual rights occurs, but due process does not require that every potentially affected party be notified prior to an agency‘s initiation of procedures established by a legislative scheme. Id. at 480-82.
As concerns plaintiff,
Because plaintiff has not cited to us any decisions by the United States Supreme Court or the Oregon Supreme Court that support the conclusion that all potentially affected persons are constitutionally entitled to individualized notice of the general substance of final orders directed at other entities, we decline to conclude that DEQ failed to give plaintiff adequate notice under the above facts. As concerns plaintiff in this circumstance, due process did not require more of the agency; due process does not present a triable issue.
Rejecting both of plaintiff‘s arguments, we conclude that plaintiff‘s petition for judicial review was untimely under
CLAIM UNDER ORS 183.490
In its fourth assignment, plaintiff argues that the trial court erred in concluding that any statute of limitations applied to plaintiff‘s claim to compel agency action under
Plaintiff asserted a claim under
“[t]he court may, upon petition as described in
ORS 183.484 , compel an agency to act where it has unlawfully refused to act or make a decision or unreasonably delayed taking action or making a decision.”
The APA allows a court to compel agency action under
Oregon law provides that “[a]ctions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.”
If a 10-year statute of limitations is held to apply, plаintiff next argues that the discovery rule should extend such time. Under a “discovery rule,” the statute of limitations is “deemed to have commenced from the earlier of two possible events: (1) the date of the plaintiff‘s actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed.” Rice v. Rabb, 354 Or 721, 725, 320 P3d 554 (2014) (internal quotations marks omitted). The rule applies an objective standard, evaluating “how a reasonable person of ordinary prudence would have acted in the same or a similar situation.” Kaseberg v. Davis Wright Tremaine, LLP, 351 Or 270, 278, 265 P3d 777 (2011). “The statute of limitations begins to run when the plaintiff knows or, in the exercise of reasonable care, should have known facts that would make a reasonable person aware of a substantial possibility that each of the elements in a claim exists.” Id. Among those elements, the limitations period begins to run when the plaintiff discovers, or a reasonable person should have discovered, the defendant‘s causal role. T. R. v. Boy Scouts of America, 344 Or 282, 292, 181 P3d 758, cert den, 555 US 825 (2008).
Because the catch-all statute,
On this record, plaintiff knew or should have known of the relevant facts more than 10 years before the filing of plaintiff‘s complaint. Plaintiff‘s owner testified that the farm had been prohibited from harvesting oysters due to fecal coliform bacteria contamination since at least the 1970s. He agreed that he had attended a meeting hosted by DEQ to discuss the draft 2001 TMDL and had a draft TMDL in his possession from a DEQ meeting. DEQ records showed that “Jess Hayes,” plaintiff‘s owner, was also mailed a draft of the TMDL. Although in possession of a copy of the entire draft TMDL, plaintiff‘s owner testified that he would nоt have read the TMDL because “we sat through a meeting and * * * then we get the gist of the meeting and what they are saying, and we are handed [the draft TMDL]. And I would look at that, you know, I‘m not going to read that. I don‘t need to read that. It‘s not going to help my cause.” In the early 2000s plaintiff‘s owner filed complaints with DEQ, ODA, and county commissioners “by telephone, by writing, and at meetings” regarding manure contamination near the oyster plats. The restrictions on plaintiff‘s oyster harvesting due to fecal coliform bacteria levels were still present in 2017 and led to plaintiff filing the underlying complaints in this case.
Plaintiff was aware of fecal coliform bacteria levels and the resulting negative effect on plaintiff‘s ability to harvest oysters in the Tillamook Bay for decades leading up to the 2001 Tillamook Bay TMDL. Plaintiff attended at least one meeting where the draft TMDL was discussed and was in possession of at least one draft TMDL. DEQ implemented the Tillamook Bay TMDL in 2001, which remains in effect today. Plaintiff remained aware of the bacteria pollution throughout the early 2000s, and its inability to harvest oysters from some of its plats did not change following implementation of the TMDL. Plaintiff filed the complaint in this suit in May 2017.
REMAINING CLAIMS
Plaintiff‘s remaining assignments of error are also time-barred. Plaintiff‘s second assignment of error is based on its public nuisance claim. On appeal, plaintiff does not present an argument regarding that claim‘s compliance with the two-year statute of limitations under the Oregon Tort Claims Act.
CONCLUSION
In sum, DEQ gave due notice of the final TMDL; whether plaintiff was notified is not a genuine issue; the 60-day period in which to file a petition for judicial review began in 2001 and has expired, making plaintiff‘s claim under
Affirmed.