10 July 14, 2016 No. 46

IN THE SUPREME COURT OF THE

STATE OF OREGON

EASTERN OREGON MINING ASSOCIATION;

Guy Michael; and Charles Chase,

Petitioners on Review,

v.

DEPARTMENT OF ENVIRONMENTAL QUALITY;

Dick Pederson, in his capacity as Director of

the Department of Environmental Quality; and

Neil Mullane, in his capacity as Administrator of

the Water Quality Division of

the Department of Environmental Quality,

Respondents on Review.

(CC 10C24263)

WALDO MINING DISTRICT,

an unincorporated Association;

Thomas A. Kitchar; and Donald R. Young,

Petitioners on Review,

v.

DEPARTMENT OF ENVIRONMENTAL QUALITY;

Dick Pederson, in his capacity as Director of

the Department of Environmental Quality; and

Neil Mullane, in his capacity as Administrator of

the Water Quality Division of

the Department of Environmental Quality,

Respondents on Review.

(CC 11C19071)

(CC 10C24263, 11C19071; CA A156161; SC S063549)

On review from the Court of Appeals.*

Submitted on the briefs June 9, 2016.

James L. Buchal, Murphy & Buchal LLP, Portland, filed 

the briefs for petitioners on review. With him on the briefs 

was William P. Ferranti, Portland.

______________

* Appeal from Marion County Circuit Court, Courtland Geyer, Judge. 273 Or 

App 259, 361 P3d 38 (2015).
Cite as 360 Or 10 (2016) 11

Michael A. Casper, Assistant Attorney General, Salem, 

filed the briefs for respondents on review. With him on the 

briefs were Ellen F. Rosenblum, Attorney General, Benjamin 

Gutman, Solicitor General, and Carson Whitehead, Assistant

Attorney General.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Baldwin, and Brewer, Justices, and Lagesen, 

Justice pro tempore.**

LANDAU, J.

The decision of the Court of Appeals is reversed, and 

the case is remanded to the Court of Appeals for further 

proceedings.

Case Summary: Petitioners, a group of miners, challenged the lawfulness of 

an order of the Department of Environmental Quality adopting a five-year permit that regulates suction dredge mining in Oregon waterways. By the time the 

challenge reached the Court of Appeals, the five-year permit had expired, and the 

agency moved to dismiss the challenge as moot. Petitioners responded that the 

challenge is the sort of action that is capable of repetition and likely to evade judicial review under ORS 14.175. The Court of Appeals dismissed the challenge, concluding that while the action was capable of repetition, it was not likely to evade 

judicial review in the future. Held: Petitioner’s challenge was likely to evade judicial review in the future for purposes of ORS 14.175 because the general type or 

category of that challenge—judicial review of an administrative order in other 

than a contested case—often takes five years or substantially longer to litigate.

The decision of the Court of Appeals is reversed, and the case is remanded to 

the Court of Appeals for further proceedings.

______________

** Nakamoto, J., did not participate in the consideration or decision of this 

case.
12 Eastern Oregon Mining Association v. DEQ

LANDAU, J.

Petitioners are a group of miners who operate small 

suction dredges in Oregon waterways. In this case, they 

challenge the lawfulness of an order of the Department of 

Environmental Quality (DEQ) adopting a general five-year 

permit that regulates that type of mining. By the time the 

challenge reached the Court of Appeals, however, the permit 

had expired. The agency then moved to dismiss petitioners’ 

challenge on the ground that it had become moot. The Court 

of Appeals agreed and dismissed. Petitioners now seek 

review of the dismissal arguing that their case is not moot. 

In the alternative, they argue that, if it is moot, their challenge nevertheless is justiciable under ORS 14.175 because 

it is the sort of action that is capable of repetition and likely 

to evade judicial review.

We conclude that the petitioners’ challenge to the 

now-expired permit is moot. But we agree with petitioners 

that it is justiciable under ORS 14.175. We therefore reverse 

the decision of the Court of Appeals and remand for further 

proceedings.

The relevant facts are not in dispute. Petitioners are 

an association of miners, a mining district, and a number 

of individual suction dredge miners. Suction dredge mining 

entails vacuuming up streambed material through a hose, 

passing the material through a sluice box that separates 

out any gold, and returning the remaining material back to 

the waterway. DEQ asserts that it has authority to regulate 

suction dredge mining under state and federal law. Among 

other things, DEQ asserts that suction dredge miners must 

obtain a National Pollutant Discharge Elimination System 

(NPDES) permit, pursuant to section 402 of the federal 

Clean Water Act. 33 USC § 1342 (2012).

In 2005, DEQ adopted an administrative rule setting out its authority to regulate suction dredge mining and 

the requirements for engaging in that activity. The order 

was denominated as a “general permit” and is known as 

the “2005 permit.” Both environmentalists and miners—

including petitioners—challenged the lawfulness of the 

2005 permit. The miners’ principal contention was that 

suction dredge mining is subject to the exclusive regulatory 
Cite as 360 Or 10 (2016) 13

authority of the Army Corps of Engineers, pursuant to section 404 of the Clean Water Act. 33 USC § 1344 (2012).

The Court of Appeals agreed with the miners in 

part, concluding that a portion of the discharge from suction dredge mining is subject to the exclusive authority of 

the Corps, but also concluding that another part of that discharge remains subject to DEQ’s authority under section 

402 of the federal statute. Northwest Environmental Defense 

Center v. EQC, 232 Or App 619, 223 P3d 1071 (2009). This 

court granted review. Northwest Environmental Defense 

Center v. EQC, 349 Or 56, 240 P3d 1097 (2010).

Before briefing could be completed, however, the 

five-year 2005 permit expired in 2010. DEQ moved to dismiss the review as moot. This court allowed the motion and 

dismissed. Northwest Environmental Defense Center v. EQC, 

349 Or 246, 245 P3d 130 (2010). Meanwhile, DEQ issued a 

new five-year general permit in 2010, known as the “2010 

permit.” This time, however, DEQ issued the permit as an 

order in other than a contested case, not as an administrative rule. See generally ORS 468B.050(2) (authorizing 

department to issue general permits either as an administrative rule or as an order in other than a contested case). 

The 2010 permit contained the same provisions requiring 

compliance with section 402 of the federal Clean Water Act.

Petitioners challenged the validity of the 2010 permit. Because the permit had been issued as an order in other 

than a contested case, they were required to do so by first 

bringing an action in circuit court. ORS 183.484 (conferring “[j]urisdiction for judicial review of orders other than 

contested cases” on Marion County Circuit Court and the 

circuit court for the county in which the petitioner resides 

or maintains a principal business office). The petition 

advanced three claims: (1) DEQ lacks authority under the 

federal Clean Water Act to regulate suction dredge mining; 

(2) DEQ lacks authority under state law to regulate such 

mining; and (3) DEQ’s 2010 permit was not supported by 

substantial evidence in the record.

The Northwest Environmental Defense Center 

(NEDC) also filed a petition for review in circuit court. In 

2012, however, NEDC and DEQ settled their differences. At 
14 Eastern Oregon Mining Association v. DEQ

that point, petitioners amended their petition to add a claim 

for relief under the Uniform Declaratory Judgment Act 

seeking a declaration that DEQ lacked authority to enter 

into such a settlement agreement.

In 2013, the parties filed cross-motions for summary judgment. The trial court concluded that, with respect 

to petitioners’ contention that the 2010 permit violated federal law, there remained issues of fact. With respect to all 

other issues, though, the court granted DEQ’s motion. After 

that, the parties stipulated to entry of judgment in favor of 

DEQ on all claims to facilitate appellate review. The trial 

court entered judgment in January 2014.

In February 2014, petitioners appealed. They asked 

for expedited consideration of their appeal, but the request 

was denied. The appeal proceeded through briefing and oral 

argument and was taken under advisement. While still 

under advisement, the five-year 2010 permit expired. DEQ 

issued a new five-year permit, effective through January 1, 

2020. The department then moved to dismiss the appeal as 

moot. Petitioners argued that the appeal was not moot and 

that, in any event, it was capable of repetition and likely to 

evade review and so still justiciable under ORS 14.175.

The Court of Appeals concluded that, in light of the 

expiration of the 2010 permit, petitioners’ challenge to the 

validity of that permit had become moot. Eastern Oregon 

Mining Assoc. v. DEQ, 273 Or App 259, 262, 361 P3d 38 

(2015). The court further concluded that petitioners’ challenge was not likely to evade review. The court explained 

that, because petitioners could “easily use their work” in 

challenging the prior permits, they could “challenge the 

2015 permit in the circuit court in more streamlined litigation.” Id.

In the meantime, the legislature enacted a moratorium on suction dredge mining for five years, beginning 

January 2, 2016. Or Laws 2013, ch 783. The moratorium, 

however, does not apply to all waterways in the state in 

which suction dredge mining may occur.1

 The precise extent 

1 The moratorium applies to “any river and tributary thereof” that contains 

essential anadromous salmonid habitat or naturally reproducing populations of 
Cite as 360 Or 10 (2016) 15

to which the moratorium would prohibit suction dredge mining in Oregon is not clear. But DEQ and petitioners agree 

that the moratorium does not appear to apply to all suction 

dredge mining in the state.

Petitioners sought review in this court. This court 

allowed review, limiting the issues on review to three questions: (1) whether the case is now moot; (2) whether, if moot, 

the case is nevertheless justiciable under ORS 14.175; and 

(3) whether, even if justiciable under ORS 14.175, the case 

should be dismissed because of the legislative moratorium. 

We address each of those questions in turn.

1. Is the case moot?

In Couey v. Atkins, 357 Or 460, 520, 355 P3d 866 

(2015), we explained that Article VII (Amended) of the 

Oregon Constitution does not require the court to dismiss 

moot cases, at least not in “public actions or cases involving matters of public interest.” But we cautioned that merely 

because the constitution does not require dismissal in such 

cases does not mean that the court will not continue to dismiss moot cases as a prudential matter. Id. Existing case 

law on the subject of mootness offers guidance concerning 

the circumstances under which the court will continue to 

dismiss moot claims. Id. at 469.

In Brumnett v. PSRB, 315 Or 402, 848 P2d 1194 

(1993), the court explained that cases “in which a court’s 

decision no longer will have a practical effect on or concerning the rights of the parties [] will be dismissed as moot.” 

See also Dept. of Human Services v. G. D. W., 353 Or 25, 32, 

292 P3d 548 (2012) (An appeal is moot when a court decision will no longer have a “practical effect on the rights of 

the parties.”). The rule applies to judicial review proceedings involving challenges to administrative agency action. 

bull trout, except where populations do not exist because of “a naturally occurring or lawfully placed physical barrier.” Or Laws, ch 783, § 2(1). DEQ estimates 

that up to 30 percent of all stream miles fall within the scope of the moratorium. 

It acknowledges that the “percentage of those stream miles that are suitable 

for suction dredge mining, however, is unclear.” A group of miners challenged 

the constitutionality of the moratorium in federal court, but the court concluded 

that the law amounts to a reasonable environmental regulation that, precisely 

because it does not appear to ban mining completely, is not preempted by federal 

law. Bohmker v. State, 2016 WL 1248729, ___ F Supp 3d ___ (D Or 2016). 
16 Eastern Oregon Mining Association v. DEQ

Homestyle Direct, LLC v. DHS, 354 Or 253, 260-61, 311 P3d 

491 (2013). In this case, petitioners’ principal challenge is to 

the validity of the 2010 permit. That permit has expired. A 

judicial declaration as to the validity of the 2010 permit can 

have no possible practical effect on the rights of the parties 

in relation to that permit.

Petitioners contend that, notwithstanding the expiration of the 2010 permit, a ruling on their underlying legal 

contentions will affect them. In their view, in issuing the 

2010 permit, DEQ adopted an erroneous legal position that 

continues to adversely affect them, given that it is the basis 

for the more recently adopted 2015 permit. The problem 

with the argument is that it ignores the fact that theirs is 

a claim for judicial review of a specific agency order—the 

2010 permit—not some abstract legal position that DEQ has 

taken. Under the Administrative Procedure Act, a challenge 

to an order in other than a contested case entitles a court 

to “affirm, reverse, or remand the order” that is the subject 

of the challenge. ORS 183.484(5)(a) (emphasis added). In 

this case, there is no longer any order in effect for a court to 

affirm, reverse, or remand.

The same result and reasoning apply to petitioners’ 

claim under the Uniform Declaratory Judgment Act. Claims 

under that statute also are subject to dismissal if a judicial 

decision will not have a practical effect on the rights of the 

parties. Couey, 357 Or at 470; see also Barcik v. Kubiaczyk, 

321 Or 174, 188, 895 P2d 765 (1995) (relief under the 

Uniform Declaratory Judgment Act is available “only when 

it can affect in the present some rights between the parties”) 

(emphasis in original). In this case, petitioners rely on that 

statute to challenge the validity of a settlement agreement 

concerning the implementation of the 2010 permit. Any judicial decision as to that challenge would not affect the rights 

of any of the parties. The permit to which the settlement 

agreement otherwise would have applied has expired.

2. Is the action nevertheless justiciable under ORS 

14.175?

ORS 14.175 provides:

“In any action in which a party alleges that an act, policy or practice of a public body *** is unconstitutional or is 
Cite as 360 Or 10 (2016) 17

otherwise contrary to law, the party may continue to prosecute the action and the court may issue a judgment on 

the validity of the challenged act, policy or practice even 

though the specific act, policy or practice giving rise to the 

action no longer has a practical effect on the party if the 

court determines that:

“(1) The party has standing to commence the action;

“(2) The act challenged by the party is capable of repetition, or the policy or practice challenged by the party continues in effect; and

“(3) The challenged policy or practice, or similar acts, 

are likely to evade judicial review in the future.”

The statute thus provides that, even when a judicial decision would no longer have a practical effect on the rights of 

the parties, a court may issue the decision if the parties can 

satisfy each of the three stated requirements. Couey, 357 Or 

at 477.

DEQ does not contest the first two of the three statutory requirements. The only issue is whether petitioners’ 

challenge to the five-year 2010 permit is of a sort that is 

likely to evade review before the permit expires. The Court 

of Appeals concluded that petitioners’ challenge is not likely 

to evade review because petitioners could “easily use their 

work” in challenging the prior permits and, as a result, 

could “challenge the 2015 permit in the circuit court in more 

streamlined litigation.” Eastern Oregon Mining Assoc., 273 

Or App at 262.

In so concluding, the court erred. As we explained in 

Couey, the focus of ORS 14.175(3) is whether the general type 

or category of challenge at issue is likely to evade being fully 

litigated—including by appellate courts—in the future, not 

whether a specific case might avoid becoming moot through 

expedited consideration or some other mechanism:

“The fact that there is a possibility that a particular case 

could obtain expedited consideration is beside the point. 

ORS 14.175 applies to types or categories of cases in 

which it is ‘likely’ that such challenges will avoid judicial 

review.”

357 Or at 482.
18 Eastern Oregon Mining Association v. DEQ

DEQ argues that, in any event, the type or category of case at issue is not the sort that is likely to evade 

review. DEQ begins by observing that some federal courts 

have adopted a “rule of thumb” that two years is an adequate time to obtain a final judicial decision on a challenge 

to a federal administrative agency order. See, e.g., Fund for 

Animals, Inc., v. Hogan, 428 F3d 1059, 1064 (DC Cir 2005). 

The time it takes to fully litigate a challenge to a federal 

administrative agency order or rule, however, may be different from the time it would take to challenge an Oregon 

agency’s order or rule under the Oregon Administrative 

Procedure Act. Moreover, the “rule of thumb” that DEQ 

identifies does not appear to have been uniformly followed 

by federal courts, particularly in cases involving challenges 

to NPDES permits. See, e.g., Trustees for Alaska v. EPA, 

749 F2d 549, 555 (9th Cir 1984) (holding that challenge to 

expired five-year NPDES permits originally issued eight 

years earlier was capable of repetition, yet evading review); 

Montgomery Environmental Coalition v. Costle, 646 F2d 568, 

582-83 (DC Cir 1980) (holding that “we have no difficulty” 

concluding that challenge to expired five-year NPDES permit was capable of repetition, yet evading review).

DEQ asserts that “a review of this court’s administrative law cases supports the conclusion that five years 

is sufficient time to fully litigate such a case” as this one. 

In support, the department cites Broadway Cab LLC 

v. Employment Dept., 358 Or 431, 364 P3d 338 (2015); 

OR-OSHA v. CBI Services, Inc., 356 Or 577, 341 P3d 701 

(2014); and Noble v. Dept. of Fish and Wildlife, 355 Or 435, 

326 P3d 589 (2014), each of which took approximately four 

years to fully litigate a challenge to an administrative 

agency decision.

None of those cases involved a challenge to an order 

in other than a contested case, however. In cases involving 

challenges to orders in other than a contested case, an additional layer of judicial review is required over and above 

what is ordinarily required for challenges to administrative agency rules or orders. See generally Norden v. Water 

Resources Dept., 329 Or 641, 645-46, 996 P2d 958 (2000) 

(describing procedure for challenging orders in other than 

contested cases). That extra layer of judicial review makes 
Cite as 360 Or 10 (2016) 19

a difference. Even a cursory review of cases involving that 

process reveals that it is (perhaps unfortunately) quite common for them to take five years or substantially longer to 

fully litigate.2

Moreover, although the particular circumstances of 

the case before the court do not determine whether it is the 

sort of claim that is likely to evade review, the difficulty of 

obtaining timely judicial review of orders in other than a 

contested case is nowhere better illustrated than this very 

case, which now has become moot not once, but twice, and 

even then after the parties requested—and were denied—

expedited consideration. We conclude that petitioners’ challenge is of the sort that is likely to evade review within the 

meaning of ORS 14.175(3).

The fact that the parties may have established 

the three requirements for review under ORS 14.175 does 

not end the matter. As we explained in Couey, the statute 

permits a court to issue a judgment on the validity of the 

challenged act or policy, but it does not require a court to 

do so. 357 Or at 522. The statute “leaves it to the court to 

determine whether it is appropriate to adjudicate an otherwise moot case under the circumstances of each case.” Id. In 

this instance, the Court of Appeals did not reach that issue, 

having determined that this is not the sort of case to which 

ORS 14.175 even applies. We therefore remand the case for 

the appropriate exercise of the discretion that the statute 

affords.

DEQ argues that, if we determine that petitioners’ 

challenge qualifies for judicial review under ORS 14.175, 

we should exercise our discretion to limit the scope of that 

2 See, e.g., Noble v. Oregon Water Resources Dept., 356 Or 516, 340 P3d 47 

(2014) (five years); Gearhart v. PUC, 356 Or 216, 339 P3d 904 (2014) (six years); 

Powell v. Bunn, 341 Or 306, 142 P3d 1054 (2006) (six years); Norden, 329 Or at 

644 (six years); Mendieta v. Division of State Lands/McKay, 328 Or 331, 987 P2d 

510 (1999) (five years); Coalition for Safe Power v. Oregon Public Utility Com’n, 

325 Or 447, 939 P2d 1167 (1997) (eight years); Teel Irrigation Dist. v. Water 

Resources Dept., 323 Or 663, 919 P2d 1172 (1996) (five years); Pacific Northwest 

Bell Telephone Co. v. Eachus, 320 Or 557, 888 P2d 562 (1988) (seven years); Hardy 

v. Land Board, 274 Or App 262, 360 P3d 647 (2015) (seven years); Bridgeview 

Vineyards, Inc. v. State Land Board, 258 Or App 351, 309 P3d 1103 (2013) (14 

years); G.A.S.P. v. Environmental Quality Commission, 198 Or App 182, 108 P3d 

95 (2005) (eight years).
20 Eastern Oregon Mining Association v. DEQ

review to the issue whether the issuance of the 2010 permit 

violates the federal Clean Water Act. But whether to limit 

judicial review is, as DEQ itself notes, a matter of discretion 

under ORS 14.175. As in Couey, that discretion is not for a 

reviewing court to exercise in the first instance. 357 Or at 

522.

3. Should the case be dismissed because of the enactment of a moratorium?

There remains the issue whether we should even 

allow for the exercise of discretion under ORS 14.175 

because of the enactment of the legislative moratorium on 

suction dredge mining until 2021. As we have noted, however, the extent of the moratorium is not clear. The parties 

agree that, whatever that extent may be, it does not apply 

to all waterways in the state where suction dredge mining 

may take place. Under the circumstances, we see no reason 

to conclude that the enactment of the moratorium precludes 

the exercise of discretion to issue a judgment on the claims 

at issue in this case.

The decision of the Court of Appeals is reversed, 

and the case is remanded to the Court of Appeals for further 

proceedings.