Douglas County v. Fish and Wildlife Commission

An order is “any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency.” ORS 183.310(6)(a). A rule is (1) any agency directive, standard, regulation or statement (2) of general applicability (3) that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. ORS 183.310(9).

The Oregon Fish and Wildlife Commission decided to terminate the Rock Creek Hatchery summer steelhead hatchery program. Petitioners argued the decision was either an order subject to judicial review under ORS 183.484 or a rule subject to judicial review under ORS 183.400. They also asserted a separate ORS 183.490 claim seeking funding for and implementation of a steelhead trapping program. An order is “any agency action expressed orally or in writing directed to a named person or named persons, other than employees, officers or members of an agency.” ORS 183.310(6)(a). A rule is (1) any agency directive, standard, regulation or statement (2) of general applicability (3) that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of any agency. ORS 183.310(9). Although terminating the program could affect persons who rely on the hatchery, the decision was not directed at them; therefore, it was not an order. It likewise was not a rule because it only applied to the Rock Creek Hatchery and was not generally applicable. Because the decision was not an order or rule, the Court lacked jurisdiction to hear the claims under ORS 183.484 and ORS 183.400. Transferred to Marion County Circuit Court pursuant to ORS 14.165(5)(a).