Brown v. State Historic Preservation Office

“The interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid.” Smith v. TRCI, 259 Or App 11, 25, 312 O3d 568 (2013).

Petitioner brought an administrative rule challenge under ORS 183.400. Petitioner asserted that information published by the Oregon Parks and Recreation, through its State Historic Preservation Office (SHPO), regarding who is classified as an "owner" for National Register of Historic Places purposes constituted a rule and was therefore invalid because SHPO failed to comply with the applicable rulemaking procedures under Administrative Procedures Act (APA).  More specifically, Petitioner argued that the newly published ownership counting standard is a rule because it "amplifies and refines the definition of 'owner'" by adding "trusts" to the list of owners.  In response, SHPO argued that the standard is not a rule because it simply reflects the application of the rule as it exists and does not amplify or refine the existing rule.  “The interpretive amplification or refinement of an existing rule is a new exercise of agency discretion and must be promulgated as a rule under the APA to be valid.” Smith v. TRCI, 259 Or App 11, 25, 312 O3d 568 (2013). The Court found that the inclusion of trusts into the ownership counting standard amounted to an interpretive amplification, which constituted a rule under ORS 183.310.  That Court held that SHPO did not follow appropriate rulemaking procedures and therefore the provision of SHPO's ownership counting standard that designates trusts as eligible owners was invalid.