No. 66 December 14, 2017 269

66Rogue Advocates v. Board of Comm. of Jackson County December 14, 2017 362 Or 2017

IN THE SUPREME COURT OF THE

STATE OF OREGON

ROGUE ADVOCATES

and Christine Hudson,

Petitioners on Review,

v.

BOARD OF COMMISSIONERS

OF JACKSON COUNTY

and Mountain View Paving, Inc.,

Respondents on Review.

(CC 14CV11829; CA A158485; SC S064105)

On review from the Court of Appeals.*

Argued and submitted March 8, 2017.

Maura C. Fahey, Crag Law Center, Portland, argued the 

cause and filed the briefs for petitioners on review. Also on 

the briefs was Ralph O. Bloemers.

Lynn R. Stafford, Oregonians in Action Legal Center, 

Tigard, argued the cause and filed the briefs for respondent 

on review Mountain View Paving, Inc. Also on the brief was 

David J. Hunnicutt.

No appearance on behalf of respondent on review Board 

of Commissioners of Jackson County.

Before Balmer, Chief Justice, and Kistler, Walters, Landau,

and Nakamoto, Justices.**

PER CURIAM

The petition for review is dismissed as moot.

Walters, J., filed a concurring opinion, in which Balmer, 

C. J., joined.

______________

** On appeal from Jackson County Circuit Court, Timothy C. Gerking, 

Judge. 277 Or App 651, 372 P3d 587 (2016).

** Baldwin, J., retired March 31, 2017, and did not participate in the decision 

of this case. Brewer, J., retired June 30, 2017, and did not participate in the decision of this case. Flynn and Duncan, JJ., did not participate in the consideration 

or decision of this case.
270 Rogue Advocates v. Board of Comm. of Jackson County

PER CURIAM

In this land use dispute, we allowed review to 

confront the distinction between circuit court jurisdiction 

to enforce local land use ordinances under ORS 197.825

(3)(a) and the exclusive jurisdiction of the Land Use Board 

of Appeals (LUBA) to review local land use decisions under 

ORS 197.825(1).1

 In 2014, plaintiffs Rogue Advocates and 

Christine Hudson (together, Rogue Advocates)2

 brought an 

action in circuit court premised on that court’s jurisdiction 

to enforce Jackson County’s land use ordinances. Rogue 

Advocates’ complaint sought declaratory and injunctive 

relief in Jackson County Circuit Court against the Board 

of Commissioners of Jackson County (the county) and 

Mountain View Paving, Inc. (Mountain View Paving), alleging that Mountain View Paving was operating an asphalt 

batch plant that was prohibited by the county’s land use 

ordinances if the owner had not first obtained both a floodplain development permit and formal verification from the 

county that the plant was a lawful nonconforming use of the 

property. At the time that Rogue Advocates filed their complaint, Mountain View Paving did not have the permit and 

verification that Rogue Advocates alleged were required.

1 ORS 197.825 provides:

“(1) Except as provided in ORS 197.320 and subsections (2) and (3) of 

this section, the Land Use Board of Appeals shall have exclusive jurisdiction 

to review any land use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 

197.830 to 197.845.

“*****

“(3) Notwithstanding subsection (1) of this section, the circuit courts of 

this state retain jurisdiction:

“(a) To grant declaratory, injunctive or mandatory relief in proceedings arising from decisions described in ORS 197.015(10)(b) or proceedings 

brought to enforce the provisions of an adopted comprehensive plan or land 

use regulations; and

“(b) To enforce orders of the board in appropriate proceedings brought by 

the board or a party to the board proceeding resulting in the order.”

2 Christine Hudson owns and manages Mountain View Estates, a residential community for seniors adjacent to Mountain View Paving’s asphalt batch 

plant site. Rogue Advocates is a nonprofit corporation that seeks to preserve productive rural lands and to promote urban centers in southern Oregon’s Rogue 

Valley region. Rogue Advocates’ members own homes and live in Mountain View 

Estates.
Cite as 362 Or 269 (2017) 271

The county and Mountain View Paving contested 

circuit court jurisdiction. They explained that the owners 

of the plant had applied for the allegedly required verification and permit, and that the county, initially, had granted 

their applications.3

 Although LUBA had reversed the 

county’s decisions and remanded for further consideration, 

the county and Mountain View Paving contended that the 

matter could or would be resolved by the county or through 

the LUBA review process. Therefore, they argued, LUBA 

had exclusive jurisdiction to decide the issues presented 

in Rogue Advocates’ complaint. The circuit court granted 

motions filed by the county and Mountain View Paving to 

dismiss the circuit court action for lack of subject matter 

jurisdiction. Rogue Advocates appealed that decision to the 

Court of Appeals.

In January 2016, while Rogue Advocates’ appeal 

was pending in the Court of Appeals, LUBA issued a final 

decision holding that Mountain View Paving’s asphalt 

batch plant operation was not permissible under applicable Jackson County land use ordinances. Meyer v. Jackson 

County, ___ Or LUBA ___ (LUBA No. 2015-073, January 11, 

2016). Mountain View Paving then ceased asphalt batching 

on the property and relocated its asphalt batch plant. After 

LUBA’s order became final and, apparently, after Mountain 

View Paving ceased operating its asphalt batch plant, the 

Court of Appeals issued its decision in this case, affirming 

the ruling of the circuit court. Rogue Advocates v. Board 

of Comm. of Jackson County, 277 Or App 651, 372 P3d 587 

(2016). This court then allowed Rogue Advocates’ petition 

for review to consider whether the circuit court had had 

jurisdiction to consider Rogue Advocates’ complaint.

In light of the fact that Mountain View Paving has 

ceased the activities that were identified by Rogue Advocates 

as the bases for its complaint, we asked the parties to brief 

the issue of whether the case before us is moot and, therefore, whether the petition for review should be dismissed. 

3 Paul and Kristen Meyer, the owners of Mountain View Paving, were the 

applicants for the permits. Rogue Advocates filed petitions for review of the 

county’s decisions granting those permits with LUBA. Paul and Kristen Meyer 

intervened in those proceedings as respondents.
272 Rogue Advocates v. Board of Comm. of Jackson County

Whether a case is moot depends on whether a justiciable 

controversy exists. Brummet v. PSRB, 315 Or 402, 405, 848 

P2d 1194 (1993). In a declaratory judgment action like the 

present one, a justiciable controversy “must involve a dispute 

based on present facts rather than on contingent or hypothetical events.” TVKO v. Howland, 335 Or 527, 534, 73 P3d 

905 (2003). In a similar vein, this court has stated that a 

case is moot “[i]f, because of changed circumstances, a decision no longer will have a practical effect on or concerning 

the rights of the parties.” State v. Hemenway, 353 Or 498, 

501, 302 P3d 413 (2013) (internal quotation marks omitted). 

A case also is moot “when an event occurs that renders it 

impossible for the court to grant effectual relief.” Hamel v. 

Johnson, 330 Or 180, 184, 998 P2d 661 (2000) (internal quotation marks and brackets omitted).

We conclude that the case is moot. In their complaint, Rogue Advocates contested Mountain View Paving’s 

operation of an asphalt batch plant. Mountain View Paving 

is no longer operating that asphalt batch plant, states that it 

has no intention to do so in the future, and does not contend 

that it has a legal right to do so. Thus, a decision in this case 

will not have a practical effect on the parties, and this case 

is now moot.

However, this court is not necessarily required to 

dismiss moot cases, “at least not in ‘public actions or cases 

involving matters of public interest.’” Eastern Oregon Mining 

Association v. DEQ, 360 Or 10, 15, 376 P3d 288 (2016) (quoting Couey v. Atkins, 357 Or 460, 520, 355 P3d 866 (2015)). 

Even if moot, such cases may be justiciable if the parties can 

satisfy the requirements set out in ORS 14.175. That statute 

allows a court to issue a judgment when the case is moot 

but the challenged act is capable of repetition yet is likely to 

evade judicial review and the other terms of the statute are 

met. That statute does not, however, require a court to issue 

a judgment in that circumstance. Couey ̧ 357 Or at 522 (court 

has discretion to decide whether it is appropriate to adjudicate an otherwise moot case under the circumstances of the 

case). In this case, we decline to exercise that authority. The 

likelihood that a circuit court ruling denying jurisdiction 

in circumstances similar to these will evade review in this 

court is not so great as to justify our exercise of discretion to 
Cite as 362 Or 269 (2017) 273

continue to hear this case. We therefore hold that the case is 

moot and is not justiciable.4

The petition for review is dismissed as moot.

WALTERS, J., concurring.

I concur in the court’s decision to dismiss the petition for review in this case as moot and nonjusticiable, but 

write to call attention to the importance of the issue raised 

in this case and the need for its correct resolution. In my 

view, when a landowner uses land in violation of a local land 

use regulation or Land Use Board of Appeals (LUBA) order, 

a circuit court has jurisdiction to issue an injunction prohibiting that illegal use. The fact that the landowner may 

be entitled to seek, or may in fact be seeking, permission to 

engage in that use may affect the court’s exercise of its jurisdiction, but it does not operate as a jurisdictional bar. As 

I will explain, LUBA’s exclusive jurisdiction to review local 

land use decisions may counsel against, but does not always 

foreclose, circuit court jurisdiction to enforce existing law.

In this case, the Court of Appeals relied on the following rule to conclude that the circuit court did not have 

subject matter jurisdiction to enjoin Mountain View Paving’s 

asphalt batch plant operation: “‘At both ends of the spectrum 

and all points along it, if local or LUBA jurisdiction exists 

or has been exercised, there is no circuit court jurisdiction 

to render a decision on matters that were or could have 

been resolved through the local or LUBA process.’” Rogue 

Advocates v. Board of Comm. of Jackson County, 277 Or App 

651, 659-60, 372 P3d 587 (2016) (quoting Doney v. Clatsop 

Co., 142 Or App 497, 502, 921 P2d 1346 (1996)). That rule 

is not found in the controlling statute, ORS 197.825, and it 

wrongly precludes circuit courts from determining whether 

to exercise, and in the certain cases, from exercising, their 

statutory authority to enforce local land use ordinances and 

LUBA orders.

4 The case already may have been moot when the Court of Appeals issued its 

decision. If so, then the question arises whether it would be appropriate for this 

court to vacate the Court of Appeals’ decision. Vacatur is an extraordinary, discretionary remedy, to be granted only when a party shows an “equitable entitlement.” 

Kerr v. Bradbury, 340 Or 241, 250, 131 P3d 737 (2006). Neither party has requested 

vacatur in this case and we decline to exercise our discretion to require it. 
274 Rogue Advocates v. Board of Comm. of Jackson County

ORS 197.825(1) grants LUBA exclusive jurisdiction 

to review land use decisions:

“(1) Except as provided in ORS 197.320 and subsections (2) and (3) of this section, the Land Use Board of 

Appeals shall have exclusive jurisdiction to review any land 

use decision or limited land use decision of a local government, special district or a state agency in the manner provided in ORS 197.830 to 197.845.”

(Emphasis added.) ORS 197.825(3) provides that, notwithstanding subsection (1), circuit courts retain jurisdiction to 

enforce land use regulations and LUBA orders:

“(3) Notwithstanding subsection (1) of this section, the 

circuit courts of this state retain jurisdiction:

“(a) To grant declaratory, injunctive or mandatory 

relief in proceedings arising from decisions described in 

ORS 197.015(10)(b) or proceedings brought to enforce the 

provisions of an adopted comprehensive plan or land use 

regulations; and

“(b) To enforce orders of the board in appropriate proceedings brought by the board or a party to the board proceeding resulting in the order.”

(Emphasis added.)

The rule stated by the Court of Appeals reflects a 

view that LUBA jurisdiction under subsection (1) and circuit 

court jurisdiction under subsection (3) are mutually exclusive—that is, that circuit court jurisdiction does not exist 

when a local government has made or could make a land use 

decision that is or could be subject to LUBA review. For reasons that I will explain, I do not agree. I read ORS 197.825 

to allocate jurisdiction between LUBA and the courts, but 

not to preclude its contemporaneous exercise.

Before the legislature created LUBA in 1979,5

 circuit courts had had broad jurisdiction to decide land use 

disputes, including authority to review local land use determinations. See Edward J. Sullivan, From Kroner to Fasano: 

An Analysis of Judicial Review of Land Use Regulation in 

Oregon, 10 Willamette L J 358 (1974) (discussing evolution 

5 Or Laws 1979, ch 772, § 2.
Cite as 362 Or 269 (2017) 275

of standards and form of circuit court review of local agency 

land use decisions from 1925 to 1974); Edward J. Sullivan, 

Reviewing the Reviewer: The Impact of the Land Use Board 

of Appeals on the Oregon Land Use Program, 1979-1999, 36 

Willamette L Rev 441, 445 (2000) (review of local land use 

decisions was once the province of trial courts). In 1983, the 

legislature enacted ORS 197.825, which endowed LUBA 

with “exclusive” jurisdiction to “review” land use decisions. 

Or Laws 1983, ch 827, § 30. However, as described in greater 

detail below, when it did so, it provided that circuit courts 

continue to “retain” jurisdiction to “enforce” land use regulations by granting declaratory, injunctive, or mandatory relief. Id. Thus, the legislature transferred to LUBA 

a part of the authority that circuit courts previously had 

exercised—the role of reviewing land use decisions—but 

specifically provided that circuit courts retain other aspects 

of its preexisting authority—authority to grant declaratory, 

injunctive, or mandatory relief in three categories of proceedings.

The first category of proceedings in which the circuit courts retain jurisdiction is described in the first prong 

of ORS 197.825(3)(a): “proceedings arising from decisions 

described in ORS 197.015(10)(b).” The proceedings in that 

category do not involve “land use decisions” as that term is 

defined in the statute. ORS 197.015(10) defines the phrase 

“land use decision.” Paragraph (10)(b) lists various types of 

nondiscretionary local government land use determinations 

that are specifically excluded from the definition of “land 

use decision.” Thus, the first category of proceedings in 

which the circuit court retains jurisdiction involves determinations that are not subject to LUBA review. Only the circuit courts have jurisdiction to review “decisions described 

in ORS 197.015(10)(b).”

But that is not the only instance in which circuit courts retain jurisdiction. The second prong of ORS 

197.825(3)(a) describes a second category of proceedings 

over which circuit courts retain jurisdiction: proceedings 

brought to “enforce the provisions of an adopted comprehensive plan or land use regulations.” A third category of 

proceedings over which circuit courts retain jurisdiction is 
276 Rogue Advocates v. Board of Comm. of Jackson County

described in ORS 197.825(3)(b). Like the second prong of 

ORS 197.825(3)(a), ORS 197.825(3)(b) also provides that 

circuit courts retain enforcement jurisdiction—in proceedings brought “[t]o enforce orders of [LUBA].”

In dividing responsibility for “review” and “enforcement” as I have just described, the legislature allocated 

between the courts and LUBA the jurisdiction that previously had belonged solely to the courts. Nothing in the statutory scheme, however, suggests that the legislature intended 

to provide that LUBA’s exercise of its review jurisdiction (or 

the potential for its exercise) bars circuit courts from exercising their enforcement jurisdiction. LUBA has exclusive 

jurisdiction to “review” land use decisions, but the exercise 

of that jurisdiction (or the potential for its exercise) does not 

give it exclusive jurisdiction over all matters related to the 

use of land.

As I read ORS 197.825, a circuit court would have 

jurisdiction to declare that a landowner’s use of property 

is in violation of a land use regulation or a LUBA order 

and to enjoin that use, even if the landowner could, in the 

future, obtain a land use decision from a local government 

or LUBA that would permit that use. The commencement of 

an action in circuit court would not preclude the landowner 

from seeking such permission. Nothing in ORS 197.825

limits LUBA review jurisdiction to instances in which there 

is no pending or potential enforcement proceeding before a 

circuit court. And the obverse is also true: nothing in ORS 

197.825 limits the circuit court’s enforcement jurisdiction to 

situations in which there is no pending or potential land use 

proceeding before a local governmental body or LUBA. Nor 

does the wording of the statute in any way suggest that parties must exhaust their rights or take advantage of opportunities to obtain local governmental land use decisions or 

review of such decisions by LUBA before bringing circuit 

court enforcement actions.

That does not mean, however, that the existence of 

LUBA review jurisdiction does not affect a court’s exercise 

its enforcement jurisdiction. As I will explain, three related 

principles, derived from this court’s decisions and the 

structure of Oregon land use statutes, impose significant 
Cite as 362 Or 269 (2017) 277

limitations on the exercise of circuit court authority: the 

principle that a party cannot, in the guise of enforcement, 

seek “review” of a land use decision; the doctrine of primary 

jurisdiction; and the principle that a local government’s 

interpretation of its own regulations must be given effect.

This court’s decision Wright v. KECH-TV, 300 Or 

139, 707 P2d 1232 (1985), is illustrative of the first principle. 

In Wright, the plaintiffs brought an action in circuit court 

to compel the removal of a television station’s transmission 

tower on the ground, among others, that the county’s issuance of permits to the station violated statewide planning 

goals. The circuit court dismissed the complaint for lack of 

subject matter jurisdiction on the ground that the complaint 

presented land use questions within LUBA’s exclusive jurisdiction. The Court of Appeals affirmed. This court affirmed 

the decision of the Court of Appeals and the ruling of the 

circuit court, holding that LUBA had exclusive jurisdiction 

over the matter, because the “thrust of the complaint” was a 

challenge to the issuance of the permits. Id. at 147. In other 

words, this court determined that, in the guise of enforcement, what plaintiffs really sought was judicial review of 

the county’s land use decision. LUBA, not the court, has 

exclusive jurisdiction in that instance.

The second principle—the doctrine of primary 

jurisdiction—comes into play “when a court decides that an 

administrative agency, rather than a court of law, initially 

should determine the outcome of a dispute or one or more 

issues within that dispute that fall within the agency’s statutory authority.” Boise Cascade Corp. v. Board of Forestry 

(S42159), 325 Or 185, 192, 935 P2d 411 (1997). Courts 

invoke primary jurisdiction when it appears that an agency’s

disposition of one or more issues before the court will assist 

the court in resolving the case before it. Id. As this court 

explained in Boise Cascade, there are two types of primary 

jurisdiction: statutory primary jurisdiction, in which a statute requires courts to apply primary jurisdiction to a class 

of cases, and judge-made primary jurisdiction, in which 

the scope and effect are determined through judicial reasoning. Id. at 191-92. Neither ORS 197.825 nor any other 

statute requires courts to await LUBA review before exercising their enforcement authority. Thus, in exercising its 
278 Rogue Advocates v. Board of Comm. of Jackson County

enforcement jurisdiction, a circuit court would be required 

to determine the extent to which primary jurisdiction comes 

into play by considering the nature of the parties’ dispute 

and the scope of the agency’s authority. Id. at 193.

As this court explained in Boise Cascade, invocation of the doctrine of primary jurisdiction does not require 

dismissal of a circuit court complaint unless the court determines that an agency has primary jurisdiction over an entire 

dispute. Id. In other circumstances, a court has discretion 

whether to invoke primary jurisdiction and defer decision in 

the action until the agency has addressed a particular issue. 

Id. at 192. There, the court must balance considerations in 

favor of allocating initial decision-making authority to the 

agency against the likelihood that application of agency deference will unduly delay resolution of the dispute before the 

court. Id. Thus, in a land use proceeding, the doctrine of 

primary jurisdiction may counsel that a court refrain from 

exercising its enforcement jurisdiction until local and LUBA 

review are complete. In appropriate circumstances, however, a court may decide to exercise its discretion to impose 

a remedy pending the completion of local or LUBA review.

The third applicable principle that limits a circuit 

court’s exercise of enforcement jurisdiction is that a court 

does not have unfettered authority to reach its own conclusions about the meaning of applicable land use regulations. 

If LUBA has interpreted such regulations, a court’s authority to reach a different conclusion is limited. See Don’t Waste 

Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 

P2d 119 (1994) (courts cannot overrule agency’s interpretation of its own rule unless agency’s plausible interpretation is shown to be inconsistent with wording of the rule, 

its context, or other source of law). The same is true when 

a county has interpreted its own regulations or ordinances. 

Siporen v. City of Medford, 349 Or 247, 257-58, 243 P3d 776 

(2010) (when governing body is responsible for enacting 

ordinance, it may be assumed to have better understanding than LUBA or the courts of its intended meaning); see 

also, Clark v. Jackson County, 313 Or 508, 515, 836 P2d 710 

(1992) (LUBA must affirm county’s interpretation of its own 

ordinances unless LUBA determines that county’s interpretation is inconsistent with express language of ordinance or 
Cite as 362 Or 269 (2017) 279

its apparent purpose or policy.). In other words, the courts do 

not have carte blanche authority to interpret local land use 

regulations or ordinances; they must give effect to interpretations of such laws provided by LUBA or local governments.

Those principles place significant limits on a circuit court’s enforcement jurisdiction, but they do not bar 

its exercise. In this case, the proper question for the circuit 

court and the Court of Appeals was not whether “local or 

LUBA jurisdiction exists or has been exercised,” but rather, 

as this court indicated in Wright, 300 Or at 147, whether 

the “thrust of” Rogue Advocates’ complaint was to obtain 

enforcement of the county’s land use ordinances that prohibited Mountain View Paving from conducting an asphalt 

batch operation without the permits and approvals required 

to lawfully engage in that operation.

Here, Rogue Advocates alleged in their complaint 

that Mountain View Paving operated an asphalt batch plant 

on property that is located in an area in which such a use is 

prohibited absent both county verification as a lawful nonconforming use and a floodplain development permit. Rogue 

Advocates further alleged that, at the time the complaint 

was filed, Mountain View Paving did not have the required 

verification or permit and that its use therefore violated 

county ordinances. Rogue Advocates sought a declaration 

of the violation and an injunction ordering Mountain View 

Paving to cease the asphalt batch plant operation unless 

and until the required verifications and permit were issued. 

Thus, the complaint sought to enforce existing Jackson 

County land use regulations and not to foreclose either a 

decision by the county granting those approvals or LUBA’s 

review of the county’s action. The circuit court could have 

resolved the issue actually presented in Rogue Advocates’ 

complaint—whether Mountain View Paving could operate 

the asphalt batch plant without the nonconforming use verification and floodplain development permit—without considering whether Mountain View Paving eventually would 

obtain the allegedly required verification and permit. Rogue 

Advocates did not ask the circuit court to determine whether 

the county should issue the required approvals. The county 

had authority to make that decision as an initial matter, 

and LUBA had exclusive jurisdiction to review the decision 
280 Rogue Advocates v. Board of Comm. of Jackson County

that the county made. But, in my view, the existence of that 

review authority did not deprive the circuit court of subject 

matter jurisdiction to consider whether to enjoin Mountain 

View Paving’s operation of the asphalt batch plant during 

the completion of those proceedings.

I understand that circuit court enforcement jurisdiction is narrow and that its exercise is subject to limitation. Nonetheless, that judicial authority permits a court to 

require adherence to the rule of law, and I urge an interpretation of ORS 197.825 that recognizes its significance.

Balmer, C. J., joins in this concurring opinion.