Ciecko v. DLCD

Under ORS 196.471(3), the Land Conservation and Development Commission must return recommended Territorial Sea Plan amendments to the Ocean Policy Advisory Council, allowing 155 days for revision of the proposed amendments.

Petitioners appealed the validity of the Department of Land Conservation and Development (DLCD) rule, OAR 660-036-0005, amending Part Five of the 1994 Territorial Sea Plan (TSP). Petitioners assign error to the Land Conservation and Development Commission's failure to comply with ORS 196.471 rulemaking procedures. On appeal, Petitioners argued that the rulemaking process for amending the TSP required the commission to either adhere to recommendations made by the Ocean Policy Advisory Council (OPAC) or allow OPAC to revise the amendments. In response, the commission argued that it could adopt its own modifications to the TSP because the text of ORS 196.471 did not prohibit the commission from considering recommendations outside OPAC's recommended amendments. "Under ORS 196.471, no findings allow the commission to modify OPAC's recommendations without first sending the required changes back to OPAC and affording it the 155 days prescribed by the statute." The Court of Appeals held that the commission was required to return recommended amendments to OPAC for revision, and in failing to do so the commission did not comply with ORS 196.471. Amendments to OAR 660-036-0005, effective October 7, 2013, held invalid.