Background
Plaintiffs owned a Portland office building with a west-facing wall used for outdoor advertising. In 2009, they leased the advertising rights to OnSite Advertising Services, which later assigned the lease to OnDisplay. When the street was designated a state highway in 2012, Oregon Department of Transportation (ODOT) required a permit under the Oregon Motorist Information Act (OMIA).
In 2014, OnDisplay applied for a permit after discovering the sign was nonconforming under the new highway designation. Plaintiffs provided a consent letter to ODOT authorizing the permit application and listing themselves as owners along with OnDisplay. However, ODOT issued the 2015 Permit in OnDisplay’s name only, without notifying plaintiffs. When OnDisplay later sold its assets to Lamar, ODOT transferred the permit without notice to the actual property owners. After plaintiffs terminated their lease with Lamar in June 2019, ODOT cancelled the permit and issued a relocation credit to Lamar without informing plaintiffs.
Plaintiffs sued ODOT seeking to recover the permit or obtain a new one, raising six claims: federal due process violations, federal and state free speech violations, a declaratory judgment claim, and two tort claims for interference with economic relations and contractual relations. The trial court dismissed all claims for lack of subject matter jurisdiction, concluding that the exclusive remedy was judicial review under the Administrative Procedures Act (APA).
The Court’s Holding
The Oregon Court of Appeals affirmed the dismissal, holding that the APA provides the exclusive remedy for challenging ODOT’s issuance of the 2015 Permit. The court characterized ODOT’s permit issuance as an administrative “order” directed to a named person (OnDisplay) under ORS 183.310(6)(a). Because it was a final order, the APA’s judicial review procedures applied exclusively.
The court rejected plaintiffs’ argument that ODOT’s failure to notify them about the permit decision made APA review “unavailable.” The court clarified that “availability” of APA review refers to whether the APA procedurally governs the agency action—not whether a particular person was aware of the decision or the procedures. Lack of notice does not excuse compliance with APA filing deadlines or allow litigants to bypass the exclusive administrative remedy.
The court also declined to reach the trial court’s alternative grounds for dismissing plaintiffs’ first three claims because plaintiffs failed to assign error to those bases on appeal. The dismissal of all six claims was therefore affirmed on jurisdictional grounds.
Key Takeaways
- Agency permit issuances directed to named persons are administrative “orders” subject to exclusive APA review procedures.
- APA exclusivity applies regardless of whether the property owner received notice of the agency decision or was aware of the filing deadline.
- Tort claims and declaratory judgment actions cannot be used to circumvent the exclusive APA remedy for challenging agency orders.
- Failure to seek judicial review of an agency order through APA procedures forecloses subsequent litigation in circuit court, even if the owner learned of the action only after the deadline passed.
Why It Matters
This decision reinforces the finality and exclusivity of administrative procedure act remedies. Property owners and other parties affected by agency decisions cannot later sue for damages or injunctive relief based on alleged wrongs in the agency’s decision-making process. The court’s holding that lack of notice does not excuse APA compliance is significant—it means agencies have no obligation to provide actual notice for permit decisions to become binding, and affected parties bear the risk of missing administrative deadlines if they fail to discover agency actions through other means.
For practitioners, the decision clarifies that challenging permit denials or transfers requires exhaustion of administrative remedies within statutory timeframes. Once those deadlines pass, circuit court provides no alternative forum, regardless of the equities or the basis for the owner’s ignorance of the agency action.