Citizens for Resp. Devel. in The Dalles v. Walmart

Under Morse v. Oregon Division of State Lands, 285 Or 197, 204 (1979), while issuing a permit pursuant ORS § 196.825, “public need” for the proposed project only needs to be weighed when the project “unreasonably interferes with the paramount policy of the state,” however, the “unreasonably interferes” standard always applies.

The Department of State Lands (DSL) appealed the decision from the Court of Appeals holding DSL could not issue a permit to Walmart pursuant ORS § 196.825.  DSL assigns error to the court’s interpretation of Morse v. Oregon Division of State Lands, 285 Or 197, 204 (1979), and the legislative amendments that followed.  DSL argues that Morse is not applicable on private property and the statute was later amended, requiring them to only “reflect on” or “give thought to” the “public need.”  Citizens for Responsible Development in The Dalles argued that DSL was not authorized to issue the permit because DSL did not find there was a “public need” for Walmart.  Under Morse, while issuing a permit pursuant ORS § 196.825, “public need” for the proposed project only needs to be weighed when the project “unreasonably interferes with the paramount policy of the state,” however, the “unreasonably interferes” standard always applies.  The Court held that Morse requires the “unreasonably interferes” standard to apply in all fills of waters in the state and to determine if the fill “unreasonably interferes,” DSL must weigh the public need against the “paramount policy of this state to preserve the use of its waters for the named water-related uses.”  Thus the Court held “public need” must be weighed only if the fill “interferes with the paramount policy of the state,” and DSL did not determine the interference.  Affirmed.