Waterwatch of Oregon, Inc. v. Boeing Agri-Industrial Co.

Citations: 155 Or. App. 381; 963 P.2d 744; 1998 Ore. App. LEXIS 1325Docket: 96C-11192; CA A95109

Court: Court of Appeals of Oregon; August 5, 1998; Oregon; State Appellate Court

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Petitioners appealed a judgment that dismissed their petition for judicial review regarding an order issued by the Oregon Water Resources Department, which granted Boeing Agri-Industrial Company an extension of time to utilize its water rights permits for irrigating state-owned land. The trial court determined that the petitioners lacked standing, a conclusion affirmed on appeal. Boeing holds nine water rights permits, acquired between 1971 and 1984, but had only developed less than half of the permitted lands by 1995. After Boeing requested an extension, the department initially accepted a petition for reconsideration from the petitioners but ultimately denied it, leading to the judicial review petition. Boeing moved to dismiss, asserting that the petitioners did not qualify as "parties affected" by the department's order under ORS 536.075(1). Inland Land Company, which subleases land subject to Boeing's permits, supported this motion, arguing the petitioners' claims lacked factual basis for being affected. The trial court ruled in favor of Boeing and Inland, stating that agency actions cannot confer standing and that petitioners' acceptance of their reconsideration petition did not establish them as parties. On appeal, it was reiterated that standing to seek judicial review is statutory, not common law, and defined specifically under ORS 536.075(1), which permits only affected parties to appeal department orders.

ORS chapter 536 lacks a definition for "party." Petitioners argue that the term should align with definitions in Oregon's Administrative Procedures Act (APA), which includes: a) individuals or agencies with a right to a hearing; b) those named by the agency; and c) individuals requesting participation based on interest in the proceedings. The agency's decisions regarding party status can be judicially reviewed after a final order. Petitioners claim that by accepting their petition for reconsideration, the department either named them as parties or recognized their interest, thus granting them party status under the APA. 

Boeing and Inland counter that the APA's definition does not apply to water rights proceedings, with Inland asserting that the water rights statutes restrict participation to applicants, as outlined in ORS 537.140(7). The department argues it neither named the petitioners as parties nor determined their interest explicitly. The court finds it unnecessary to determine if ORS 183.310 applies to water rights proceedings, as it does not provide relief in this instance. 

First, the department did not "name" the petitioners as parties; their argument that acceptance of their petition implies party status is unfounded. ORS 183.310(6)(b) specifies that an affirmative act is required to name a party, not passive acceptance of filings. Second, there is no evidence that the department determined the petitioners had a relevant interest as required by ORS 183.310(6)(c). The absence of an express determination or a request for such a determination means the necessary conditions for judicial review are not met. The decision is affirmed.