Background
The Oregon Department of Environmental Quality issued a total maximum daily load for the Tillamook Bay Watershed in 2001. It set a zero load allocation for fecal coliform entering waterways from farm buildings and pastures to which manure had been applied. The Oregon Department of Agriculture, the designated management agency, addressed its implementation duties through the North Coast Basin Agricultural Water Quality Management Area Plan and rules, along with the confined-animal-feeding-operation permit program.
Hayes Oyster Company petitioned under ORS 183.490 to compel the department to initiate rulemaking specifically for the Tillamook Bay Watershed and its zero load allocation. After the Court of Appeals previously held that Hayes had adequately stated a claim and remanded the case, the circuit court granted summary judgment to the department, concluding that no statute, rule, or provision of the watershed TMDL required the particular rulemaking Hayes sought.
The Court’s Holding
The Court of Appeals affirmed. It held that Hayes had not identified any legal authority requiring the department to adopt a separate water-quality-management plan and implementing rules limited specifically to the Tillamook Bay Watershed. Although ORS 568.909 requires the department to develop a plan because of a TMDL, the statute permits the department itself to describe the boundaries of the lands subject to that plan.
The court explained that ORS 183.490 permits a court to compel an agency to act when it has unlawfully refused or unreasonably delayed action, but it does not authorize a court to dictate how the agency must act or remedy allegedly erroneous agency action. Hayes’s contention that the existing North Coast plan, rules, and permit program inadequately implemented the zero load allocation therefore was not cognizable under ORS 183.490. The court also rejected Hayes’s request for a missing-witness inference based on the absence of an affidavit from the environmental agency because Hayes identified no disputed material fact to which such an inference could apply.
Key Takeaways
- A claim under ORS 183.490 requires a legal duty to take the specific agency action the petitioner seeks to compel.
- ORS 183.490 may compel an agency to act, but it does not permit a court to direct the agency to act in a particular way or review the substantive correctness of completed agency action.
- An adverse missing-witness inference does not defeat summary judgment when the opposing party identifies no genuine dispute of material fact.
Why It Matters
The decision clarifies the limited scope of Oregon’s remedy for compelling agency action. A regulated party cannot use ORS 183.490 to challenge the adequacy of an agency’s chosen regulatory approach when the agency has acted and no source of law mandates the specific additional action requested.
The ruling also confirms the Department of Agriculture’s statutory discretion to define the geographic boundaries of agricultural water-quality-management plans developed in response to a TMDL.