817 P.2d 1299 | Or. | 1991
The issue in this administrative law case is whether People for the Ethical Treatment of Animals (PETA) has standing, as an aggrieved person, to challenge an order of the University of Oregon’s Institutional Animal Care and Use Committee (IACUC) approving, as consistent with federal guidelines, proposed research on the auditory system of barn owls. The circuit court granted IACUC’s motion to dismiss PETA’s petition , on the ground that PETA lacked standing under the Oregon Administrative Procedures Act (APA). The Court of Appeals affirmed. People for Ethical Treatment v. Inst. Animal Care, 102 Or App 276, 794 P2d 1224 (1990). We also affirm.
PETA is a national non-profit animal protection organization with an Oregon membership of over 3,000. IACUC is a committee created by the University of Oregon pursuant to federal law.
On September 26, 1988, IACUC conducted a meeting to discuss, among other things, a professor’s grant proposal to study the auditory system of barn owls. IACUC conducted all deliberations concerning the barn owl proposal in executive session, closed to any public participation. A vote approving the animal-protection aspects of the grant application subsequently was taken in open session. Members of PETA present at the later, public meeting were not allowed to participate in the discussion. After the meeting, PETA sent the IACUC chairman a letter objecting to the IACUC order approving the grant and asking that PETA’s objections be made a part of the minutes, which was done.
PETA filed a petition for judicial review of an order in other than a contested case, ORS 183.484, in the Marion County Circuit Court, claiming that IACUC’s order violated federal and Oregon law as well as university rules and, therefore, was invalid. On IACUC’s motion, the circuit court dismissed PETA’s petition on the ground that PETA lacked standing.
PETA sought judicial review in the Court of Appeals, claiming that it had standing to seek judicial review of IACUC’s order as an “aggrieved” person
“Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form.”
PETA petitioned this court for review, arguing that the Court of Appeals erred in its interpretation of Marbet v. Portland Gen. Elect., supra, and Multnomah County v. Talbot, supra, and that it has standing to challenge IACUC’s decision. We hold that it does not and therefore affirm the Court of Appeals’ decision, but on different grounds than those stated by the Court of Appeals.
To seek judicial review of government action, a party must have standing. Standing is not a matter of common law, Benton County v. Friends of Benton County, 294 Or 79, 82, 653 P2d 1249 (1982); it is conferred by the Legislative Assembly. Therefore, and aside from certain constitutional considerations not presented by this case, a reviewing court’s inquiry into the standing of an entity seeking judicial review is confined to an interpretation of legislative intent.
The concept of an “aggrieved” person in ORS 183.484 is not self-explanatory. To be aggrieved, for example,
This court previously has explored the scope of the legislature’s intent with respect to standing as an “aggrieved” person under the APA. In Marbet v. Portland
In Multnomah County v. Talbot, supra, a county tax assessor sought to challenge the date on which the state preservation officer classified certain property as historic property, thus freezing its assessed value. This court adopted the Court of Appeals’ opinion, which held that the tax assessor was an “aggrieved” person under ORS 183.480(1), because the tax assessor had a statutorily imposed involvement under the legislative scheme. The court determined that standing under the Oregon APA required “more than * * * [an] abstract interest * * * in the question presented. A basic element of the policy underlying the standing requirement * * * ‘is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues * * *” ’ ” in the proceeding. Id. at 242 (quoting Flast v. Cohen, 392 US 83, 99, 88 S Ct 1942, 20 L Ed 2d 947 (1968), which in turn was quoting Baker v. Carr, 369 US 186, 204, 82 S Ct 691, 7 L Ed 2d 663 (1962)).
From the legislative history and from our prior interpretations of “aggrieved” person, we conclude that a person is “aggrieved” under ORS 183.480(1) if the person shows one or more of the following factors: (1) the person has suffered an injury to a substantial interest resulting directly
Turning to the present case, we hold that PETA is not an “aggrieved” person under ORS 183.480(1), because it has not shown, nor even claimed, that it fits within any of the criteria required by the legislature for standing. First, PETA has not claimed an injury to a substantial interest resulting directly from IACUC’s order. Before the circuit court, PETA claimed IACUC’s order would “frustrate [PETA’s] recognized interest in helping to ensure that animals are not used in violation of public policies, ’ ’ and that its members would be aggrieved, because the order directed “their taxes towards the support of biomedical research of questionable benefit * * * ” BQfk 0f PETA’s asserted interests are concerns for political choices, interests that are not “substantial” for the purposes of standing for judicial review under the APA. What PETA argues, in essence, is for good government — its own particular view of good government. The Legislative Assembly is the proper forum for balancing political interests.
Second, PETA is not furthering an interest that the legislature expressly wished to have considered, as was done in Marbet v. Portland Gen. Elect., supra. PETA asserts that IACUC’s order violated (1) Oregon’s Open Meeting Law,
None of those sources of authority helps PETA. First, the Court of Appeals correctly concluded that PETA did not obtain standing simply by alleging a violation of Oregon’s Open Meeting Law. “We need not determine whether PETA is a ‘person affected’ by * * * [IACUC’s] decision, * * * [ORS 192.680(2)], because it did not bring its challenge as an action seeking remedies under ORS 192.680 [the open meetings law]. It sought to reverse * * * [IACUC’s] action by bringing a petition for judicial review under the APA.” People for Ethical Treatment v. Inst. Animal Care, supra, 102 Or App at 283.
Next, PETA relies on ORS 174.130, which imposes a quorum requirement on IACUC’s authority to approve grant applications. There is nothing in that statute or elsewhere in
Finally, PETA has not claimed or shown such a personal stake in the outcome of the present controversy as to assure concrete adverseness to the proceeding. Although we have no doubt that PETA’s zeal makes it sufficiently adversarial in this case, zeal does not provide the requisite “personal stake” in the outcome. As articulated in the opinion that this court adopted, Multnomah County v. Talbot, supra, 56 Or App at 242-43, a personal stake in the outcome means that the agency’s decision will legally affect the petitioner in some way. In that case, by way of example, the court stated that it believed that the tax assessor had “a legally cognizable interest in assuring that the date as of which the assessed value of classified property is frozen [which was the decision disputed by the tax assessor] is correctly determined.” Id. at 243. It was this “statutorily imposed involvement under the legislative scheme,” id., that gave the tax assessor standing. The adversarial nature of the tax assessor’s interest, and the fact that “the assessor maybe the most vigorous, and perhaps the only, challenger in this kind of case,” id., would not, standing alone, have been sufficient to give the assessor standing. Unlike the tax assessor, PETA does not have any legally cognizable interest in the present case. Whatever the outcome of IACUC’s decision, PETA is not legally implicated in any way.
Despite the failure of PETA to meet any of the above factors, PETA argues that it nonetheless has standing, because implicit in Marbet v. Portland Gen. Elect., supra, is the view that “aggrieved” includes persons who actively advocate a position before an agency and lose. “It is the fact of
We conclude that PETA has not shown any of the factors necessary to give it standing as an “aggrieved” person under the Oregon APA. We will not expand the APA’s standing requirement to allow PETA to attempt to compel IACUC to obey its procedural requirements for approving the study of barn owls. Although IACUC is honor-bound, as are all agencies, to follow the rules applicable to it, the legislature has not provided, in the present case, a means by which a member of the general public (such as PETA) may enforce those rules. The circuit court’s order correctly dismissed PETA’s petition for judicial review.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
The University of Oregon created IACUC pursuant to the Health Research Extension Act of 1985, 42 USC § 289(d); IACUC operates in accordance with applicable provisions of the Animal Welfare Act, 7 USC § 2131 et seq.
The minutes that reflect IACUC’s approval of the barn owl study proposal constitute IACUC’s order. ORS 183.310(5)(b).
The paragraph of PETA’s petition in the circuit court containing PETA’s assertion that it had standing stated:
“By authorizing animal research in the absence of duly made and recorded findings that such research was within the bounds established by University rules, defendant’s September 26,1988 order frustrated petitioner’s recognized interest in helping to ensure that animals Eire not used in violation of public policies. Defendant’s September 26, 1988 order further aggrieved petitioner’s membership by directing their taxes towards the support of biomedical research of questionable benefit to themselves and others, while consequently channeling such taxes away from biomedical research more likely to yield palpable health benefits.”
PETA is a person under ORS 183.310(7):
“ ‘Person’ means any individual, partnership, corporation, association, governmental subdivision or public or private orgEinization of any character other than an agency.”
PETA also argued before the Court of Appeals that it was “adversely affected” by IACUC’s order. The court did not address that contention, finding that it did not differ in substance from the one PETA made for standing as an ‘ ‘aggrieved person. ’ ’ People for Ethical Treatment v. Inst. Animal Care, 102 Or App 276, 278 n 4, 794 P2d 1224 (1990). We agree with this determination and likewise do not separately address whether PETA was “adversely affected,” beyond noting that “adversely affected” normally requires some more palpable harm than the kind of mere dissatisfaction with the outcome that PETA evinces here.
The Court of Appeals adopted the reasoning of Intern. Primate Prot. v. Inst. for Behav. Research, 799 F2d 934, 940 (4th Cir 1986) cert den 481 US 1004 (1987), in this regard.
The phrase ‘ ‘adversely affected or aggrieved’ ’ prompted little discussion in the 1971 legislature. The phrase was included in the first draft of House Bill 1213 and remained unchanged throughout the session. Compare Bill File, House Judiciary Committee (HB 1213), Dec 30,1970 draft bill, with Or Laws 1971, ch 734, § 18. The 1970 Bar Committee Report, which identified the source of the phrase, was presented to the 1971 legislature. Minutes, House Judiciary Subcommittee I (HB 1213), Feb 23, 1971 at 1. In submitting a report to the legislature on the conforming amendments that the 1971 bill would require, the Bar Committee repeated that the phrase “adversely affected or aggrieved” “is intended to adopt the broad rule of ‘standing’ in Oregon Newspaper Publishers Association v. Peterson, 244 Or 166 (1966).” May 14, 1971, Report of the Committee on Administrative Law of the Oregon State Bar on Conforming Amendments to HB 1213, House Judiciary Committee (HB 1213), Exhibit File, at 10.
ORS 192.620 provides:
“The Oregon form of government requires an informed public aware of the deliberations and decisions of governing bodies and the information upon which such decisions were made. It is the intent of ORS 192.610 to 192.690[, Oregon’s Open Meeting Law,] that decisions of governing bodies be arrived at openly.”
ORS 174.130 provides that “[a]ny authority conferred by law upon three or more persons may be exercised by a majority of them unless expressly otherwise provided by law.”
PETA contends that the university’s “Policy Statement on Institutional Use of Animals in Research and Instruction, ” and the “Code of Ethics for Use of Animals in Research and Instruction,” are binding on IACUC as rules. Without citation, PETA asserts that the applicable rules are:
(1) “The purpose of biomedical research and instruction involving animals shall be to improve human or animal health, and this requirement shall always be satisfied.
(2) The use of animals “should be [sic] only be considered when no other practical alternative exists.”
(3) “When animals must be used, projects will be of sound design.”
(4) ‘ ‘When animals must be used, projects will * * * offer every practical safeguard to the animals.”
(5) “Experiments involving methods that may cause pain, discomfort, or distress must be of the shortest possible duration for valid results.”
(6) “Methods which cause suffering or distress which cannot be justified by the expected quality of the data are not used.”
(7) “The research is designed to utilize the best methods on the smallest number of animals of the appropriate species yielding valid results.”
For the purposes of this discussion, we shall assume that PETA is correct and that these are rules. That does not, however, establish PETA’s standing to enforce the rules.