Eastern Oregon Mining Association v. DEQ

In cases involving challenges to administrative "orders in other than a contested case," the issue is not moot if a permit expires during the life of the litigation, as these challenges of the kind that are likely to evade future review.

Eastern Oregon Mining Association (“Mining Association”) challenged the lawfulness of an "order in other than a contested case"--not an administrative order--by the Department of Environmental Quality (“DEQ”) that required the Mining Association to obtain a 5-year National Pollutant Discharge Elimination System permit (“permit”). The Mining Association contended that its area of work, suction dredge mining, was not subject to regulation by the DEQ. The trial court granted summary judgment for DEQ. When the Mining Association’s 5-year permit expired during the appellate process, the Court of Appeals dismissed the challenge as moot, after concluding it was not likely to evade future judicial review under ORS 14.175(3). The Oregon Supreme Court granted review.

On review, DEQ argued the challenge was not likely to evade future review by emphasizing the “rule of thumb” adopted by some federal courts that two years is an adequate time to fully adjudicate a challenge to an administrative order. But, under Norden v. Water Resources Dept., 329 Or 641 (2000), in cases involving challenges to orders in other than a contested case, an additional layer of judicial review is required that causes such cases to take substantially longer to litigate than cases involving challenges to administrative agency rules or orders. Because the case involved an order in other than a contested case, the Court concluded the Mining Association’s challenge was likely to evade future review, since it was likely that future challenges would take longer than five years to adjudicate--inevitably outliving the duration of the permit. Thus, the Court held the challenge was of the sort likely to evade future review, and was therefore justiciable under ORS 14.175. Reversed and remanded to the Court of Appeals for further proceedings.