71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3997
Senate Bill 957
Sponsored by Senator MESSERLE; Senators ATKINSON, L BEYER,
DERFLER, FERRIOLI, FISHER, GEORGE, METSGER, MILLER, NELSON,
SHIELDS, Representatives BUTLER, JENSON, JOHNSON, KING,
KRIEGER, KROPF, KRUSE, LEONARD, MINNIS, MORGAN, RINGO, SIMMONS,
P SMITH
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Imposes requirements on certain agencies for decisions on
permit applications. Requires that specified agencies adopt
criteria for making determinations on issuance of permits, and
adopt clear and objective standards for evaluating whether
applicant has met criteria. Provides that standards must require
agency to use best available scientific data or information in
evaluating whether applicant has met criteria.
Provides that officer or employee of specified agencies may not
issue or deny permit unless officer or employee has successfully
completed training relating to criteria and standards.
Requires that specified agencies document basis for all
decisions on issuing or denying permits.
Allows judicial review of orders not issued in compliance with
requirements of Act.
A BILL FOR AN ACT
Relating to state agencies; creating new provisions; and amending
ORS 183.482 and 183.484.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) As used in sections 1 to 3 of this 2001
Act, ' permit' means any agency permit, certificate, approval,
registration or similar form of permission required by law to
pursue any commercial activity.
(2) The requirements of sections 1 to 3 of this 2001 Act apply
to the following agencies:
(a) The Department of Environmental Quality;
(b) The Water Resources Department;
(c) The State Forestry Department;
(d) The State Department of Fish and Wildlife;
(e) The State Department of Agriculture;
(f) The Division of State Lands; and
(g) The State Department of Geology and Mineral Industries. + }
SECTION 2. { + (1) The agencies specified in section 1 of this
2001 Act by rule shall adopt:
(a) Specific criteria for making determinations on the issuance
of permits; and
(b) Clear and objective standards for evaluating whether an
applicant has met the criteria for the issuance of a permit.
(2) Standards adopted under subsection (1)(b) of this section
must require that the best available scientific data or
information be used in evaluating whether an applicant has met
the criteria for the issuance of a permit.
(3) Within the resources available to the agency, each agency
specified in section 1 of this 2001 Act shall train all officers
and employees of the agency who are involved in the issuance of
permits on the criteria adopted under this section and on the
standards required by this section for application of those
criteria in specific cases. Notwithstanding any other provision
of law, an officer or employee of an agency specified in section
1 of this 2001 Act may not issue or deny a permit unless the
officer or employee has successfully completed the training
required by this subsection.
(4) Each agency specified in section 1 of this 2001 Act shall
make a report at least once each calendar year to the Emergency
Board, and to any substantive legislative committee with
authority over the laws administered by the agency, on the
agency's progress in implementing the requirements of this
section.
(5) Each agency specified in section 1 of this 2001 Act must
provide a copy of the criteria and standards adopted under this
section for a particular permit to each person applying for that
permit. + }
SECTION 3. { + (1) The agencies specified in section 1 of this
2001 Act must document in writing the basis for all decisions on
issuing or denying permits, including documenting which of the
criteria specified in section 2 of this 2001 Act were applied and
the manner in which the standards required by section 2 of this
2001 Act were utilized in applying the criteria. The
documentation required by this section shall be made part of the
record for the decision on the permit application.
(2) If an employee of an agency prepares the documentation
required by this section, the employee must sign the
documentation. In addition, at least one officer or employee of
the agency with authority to sign orders on behalf of the agency
must sign the documentation.
(3) A copy of the documentation required by this section shall
be provided to an applicant upon the issuance of a final decision
on an application for a permit. + }
SECTION 4. ORS 183.482 is amended to read:
183.482. (1) Jurisdiction for judicial review of contested
cases is conferred upon the Court of Appeals. Proceedings for
review shall be instituted by filing a petition in the Court of
Appeals. The petition shall be filed within 60 days only
following the date the order upon which the petition is based is
served unless otherwise provided by statute. If a petition for
rehearing has been filed, then the petition for review shall be
filed within 60 days only following the date the order denying
the petition for rehearing is served. If the agency does not
otherwise act, a petition for rehearing or reconsideration shall
be deemed denied the 60th day following the date the petition was
filed, and in such cases, petition for judicial review shall be
filed within 60 days only following such date. Date of service
shall be the date on which the agency delivered or mailed its
order in accordance with ORS 183.470.
(2) The petition shall state the nature of the order the
petitioner desires reviewed, and shall state whether the
petitioner was a party to the administrative proceeding, was
denied status as a party or is seeking judicial review as a
person adversely affected or aggrieved by the agency order. In
the latter case, the petitioner shall, by supporting affidavit,
state the facts showing how the petitioner is adversely affected
or aggrieved by the agency order. Before deciding the issues
raised by the petition for review, the Court of Appeals shall
decide, from facts set forth in the affidavit, whether or not the
petitioner is entitled to petition as an adversely affected or an
aggrieved person. Copies of the petition shall be served by
registered or certified mail upon the agency, and all other
parties of record in the agency proceeding.
(3)(a) The filing of the petition shall not stay enforcement of
the agency order, but the agency may do so upon a showing of:
(A) Irreparable injury to the petitioner; and
(B) A colorable claim of error in the order.
(b) When a petitioner makes the showing required by paragraph
(a) of this subsection, the agency shall grant the stay unless
the agency determines that substantial public harm will result if
the order is stayed. If the agency denies the stay, the denial
shall be in writing and shall specifically state the substantial
public harm that would result from the granting of the stay.
(c) When the agency grants a stay it may impose such reasonable
conditions as the giving of a bond, irrevocable letter of credit
or other undertaking and that the petitioner file all documents
necessary to bring the matter to issue before the Court of
Appeals within specified reasonable periods of time.
(d) Agency denial of a motion for stay is subject to review by
the Court of Appeals under such rules as the court may establish.
(4) Within 30 days after service of the petition, or within
such further time as the court may allow, the agency shall
transmit to the reviewing court the original or a certified copy
of the entire record of the proceeding under review, but, by
stipulation of all parties to the review proceeding, the record
may be shortened. Any party unreasonably refusing to stipulate to
limit the record may be taxed by the court for the additional
costs. The court may require or permit subsequent corrections or
additions to the record when deemed desirable. Except as
specifically provided in this subsection, the cost of the record
shall not be taxed to the petitioner or any intervening party.
However, the court may tax such costs and the cost of agency
transcription of record to a party filing a frivolous petition
for review.
(5) If, on review of a contested case, before the date set for
hearing, application is made to the court for leave to present
additional evidence, and it is shown to the satisfaction of the
court that the additional evidence is material and that there
were good and substantial reasons for failure to present it in
the proceeding before the agency, the court may order that the
additional evidence be taken before the agency upon such
conditions as the court deems proper. The agency may modify its
findings and order by reason of the additional evidence and
shall, within a time to be fixed by the court, file with the
reviewing court, to become a part of the record, the additional
evidence, together with any modifications or new findings or
orders, or its certificate that it elects to stand on its
original findings and order, as the case may be.
(6) At any time subsequent to the filing of the petition for
review and prior to the date set for hearing the agency may
withdraw its order for purposes of reconsideration. If an agency
withdraws an order for purposes of reconsideration, it shall,
within such time as the court may allow, affirm, modify or
reverse its order. If the petitioner is dissatisfied with the
agency action after withdrawal for purposes of reconsideration,
the petitioner may refile the petition for review and the review
shall proceed upon the revised order. An amended petition for
review shall not be required if the agency, on reconsideration,
affirms the order or modifies the order with only minor changes.
If an agency withdraws an order for purposes of reconsideration
and modifies or reverses the order in favor of the petitioner,
the court shall allow the petitioner costs, but not attorney
fees, to be paid from funds available to the agency.
(7) Review of a contested case shall be confined to the record,
{ + and + } the court shall not substitute its judgment for that
of the agency as to any issue of fact or agency discretion. In
the case of disputed allegations of irregularities in procedure
before the agency not shown in the record which, if proved, would
warrant reversal or remand, the Court of Appeals may refer the
allegations to a Master appointed by the court to take evidence
and make findings of fact upon them. The court shall remand the
order for further agency action if it finds that either the
fairness of the proceedings or the correctness of the action may
have been impaired by a material error in procedure or a failure
to follow prescribed procedure.
(8)(a) The court may affirm, reverse or remand the order. If
the court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(b) The court shall remand the order to the agency if it finds
the agency's exercise of discretion to be:
(A) Outside the range of discretion delegated to the agency by
law;
(B) Inconsistent with an agency rule, an officially stated
agency position, or a prior agency practice, if the inconsistency
is not explained by the agency; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(c) The court shall set aside or remand the order if it finds
that the order is not supported by substantial evidence in the
record. Substantial evidence exists to support a finding of fact
when the record, viewed as a whole, would permit a reasonable
person to make that finding.
{ + (d) The court shall set aside or remand the order if it
finds that an agency specified in section 1 of this 2001 Act
failed to comply with the requirements of section 2 or 3 of this
2001 Act, or failed to follow criteria or standards adopted under
section 2 of this 2001 Act in making a decision on an application
for a permit. + }
SECTION 5. ORS 183.484 is amended to read:
183.484. (1) Jurisdiction for judicial review of orders other
than contested cases is conferred upon the Circuit Court for
Marion County and upon the circuit court for the county in which
the petitioner resides or has a principal business office.
Proceedings for review under this section shall be instituted by
filing a petition in the Circuit Court for Marion County or the
circuit court for the county in which the petitioner resides or
has a principal business office.
(2) Petitions for review shall be filed within 60 days only
following the date the order is served, or if a petition for
reconsideration or rehearing has been filed, then within 60 days
only following the date the order denying such petition is
served. If the agency does not otherwise act, a petition for
rehearing or reconsideration shall be deemed denied the 60th day
following the date the petition was filed, and in such case
petition for judicial review shall be filed within 60 days only
following such date. Date of service shall be the date on which
the agency delivered or mailed its order in accordance with ORS
183.470.
(3) The petition shall state the nature of the petitioner's
interest, the facts showing how the petitioner is adversely
affected or aggrieved by the agency order and the ground or
grounds upon which the petitioner contends the order should be
reversed or remanded. The review shall proceed and be conducted
by the court without a jury.
(4) At any time subsequent to the filing of the petition for
review and prior to the date set for hearing, the agency may
withdraw its order for purposes of reconsideration. If an agency
withdraws an order for purposes of reconsideration, it shall,
within such time as the court may allow, affirm, modify or
reverse its order. If the petitioner is dissatisfied with the
agency action after withdrawal for purposes of reconsideration,
the petitioner may refile the petition for review and the review
shall proceed upon the revised order. An amended petition for
review shall not be required if the agency, on reconsideration,
affirms the order or modifies the order with only minor changes.
If an agency withdraws an order for purposes of reconsideration
and modifies or reverses the order in favor of the petitioner,
the court shall allow the petitioner costs, but not attorney
fees, to be paid from funds available to the agency.
(5)(a) The court may affirm, reverse or remand the order. If
the court finds that the agency has erroneously interpreted a
provision of law and that a correct interpretation compels a
particular action, it shall:
(A) Set aside or modify the order; or
(B) Remand the case to the agency for further action under a
correct interpretation of the provision of law.
(b) The court shall remand the order to the agency if it finds
the agency's exercise of discretion to be:
(A) Outside the range of discretion delegated to the agency by
law;
(B) Inconsistent with an agency rule, an officially stated
agency position, or a prior agency practice, if the inconsistency
is not explained by the agency; or
(C) Otherwise in violation of a constitutional or statutory
provision.
(c) The court shall set aside or remand the order if it finds
that the order is not supported by substantial evidence in the
record. Substantial evidence exists to support a finding of fact
when the record, viewed as a whole, would permit a reasonable
person to make that finding.
{ + (d) The court shall set aside or remand the order if it
finds that an agency specified in section 1 of this 2001 Act
failed to comply with the requirements of section 2 or 3 of this
2001 Act, or failed to follow criteria or standards adopted under
section 2 of this 2001 Act in making a decision on an application
for a permit. + }
(6) In the case of reversal the court shall make special
findings of fact based upon the evidence in the record and
conclusions of law indicating clearly all aspects in which the
agency's order is erroneous.
SECTION 6. { + Sections 1 to 3 of this 2001 Act and the
amendments to ORS 183.482 and 183.484 by sections 4 and 5 of this
2001 Act apply only to applications for permits, as defined in
section 1 of this 2001 Act, made on or after the effective date
of this 2001 Act. + }
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