Chapter 196

 

      196.150

 

NOTES OF DECISIONS

 

      Land use regulations enacted to enforce Columbia River Gorge Compact are regulations “required to comply with federal law” for purposes of [former] ORS 197.352. Columbia River Gorge Commission v. Hood River County, 210 Or App 689, 152 P3d 997 (2007), Sup Ct review denied

 

LAW REVIEW CITATIONS: 23 EL 1127 (1993); 46 EL 759 (2017)

 

      196.800 to 196.905

(formerly 541.605 to 541.695)

 

NOTES OF DECISIONS

 

      These sections, regulating landfills, are codification of common law public trust doctrine that public use of lands underlying navigable waters may not be substantially modified except for water-related purposes. Morse v. Division of State Lands, 34 Or App 853, 581 P2d 520 (1978), aff’d 285 Or 197, 590 P2d 79 (1979)

 

ATTY. GEN. OPINIONS: Right of private owner and ports to fill tidelands as subject to public rights, (1971) Vol 35, p 844; state’s authority to prevent or control removal by dredging of a privately owned island in a navigable river, (1972) Vol 36, p 285; authority of the legislature to extinguish public rights in navigable waters and to charge a fee therefor, (1973) Vol 36, p 348; authority to issue permit for removal of ocean shore natural products from state recreation areas, (1974) Vol 36, p 807; authority to pay for Removal and Fill Permit Program administration out of Common School Fund, (1980) Vol 40, p 190

 

LAW REVIEW CITATIONS: 4 EL 351-355 (1974); 10 EL 675 (1980); 61 OLR 523 (1982); 19 EL 637 (1989); 21 EL 152 (1991)

 

      196.800

(formerly 541.605)

 

NOTES OF DECISIONS

 

      The rule adopted by the Division of State Lands defining “constantly flowing streams” as “any stream which flows during a portion of every year and supports aquatic life” is not supported by the legislative history of [former] ORS 541.615. State ex rel Cox v. Wilson, 277 Or 747, 562 P2d 172 (1977)

 

ATTY. GEN. OPINIONS: Approval of projects located within scenic waterway and involving less than 50 cubic yards of material, (1982) Vol. 42, p 211

 

LAW REVIEW CITATIONS: 4 EL 355 (1974); 16 WLR 359 (1979)

 

      196.805

(formerly 541.610)

 

NOTES OF DECISIONS

 

      In denying petitioner’s application for a permit, the director did not have authority to order petitioner to remove fill material and install a culvert. Opperman v. Div. of State Lands, 20 Or App 73, 530 P2d 526 (1975)

 

      This section, together with [former] ORS 541.625 and rules of Division of State Lands, established identifiable standards for determining best use of land affecting waters of the State. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

 

      This section does not confer authority or jurisdiction upon a state agency to determine legal issue of whether denial of permit constitutes condemnation. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

 

      Legislative intent is that Director of Division of State Lands, in determining whether to issue land fill permit, weigh public need for fill against public interest in preservation of water for navigation, fishing and public recreation. Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)

 

ATTY. GEN. OPINIONS: Conservation of resources as criteria for issuance of permits, (1971) Vol 35, p 844

 

      196.810

(formerly 541.615)

 

NOTES OF DECISIONS

 

      Complaint must allege the statutory amount of material filled or removed. State ex rel Cox v. Wolfe, 25 Or App 551, 549 P2d 1281 (1976)

 

      Notwithstanding that mining claim was on Federal property, federal mining laws did not act to preempt state regulation pursuant to this section. State ex rel Cox v. Hibbard, 31 Or App 269, 570 P2d 1190 (1977)

 

      Since this section does not clearly indicate legislative intent to dispense with culpable mental state requirement, offense was not violation under ORS 161.105. McNutt v. State of Oregon, 56 Or App 545, 642 P2d 692 (1982), aff’d 295 Or 580, 668 P2d 1201 (1983)

 

      This statute, defining offense of removal of material from stream contrary to conditions of a permit, does not clearly indicate legislative intent to dispense with culpable mental state and may be upgraded from violation to misdemeanor if district attorney elects to plead and prove criminal negligence. McNutt v. State of Oregon, 56 Or App 545, 642 P2d 692 (1982), aff’d 295 Or 580, 668 P2d 1201 (1983)

 

      Removal or fill of 50 cubic yards or more of material in connection with activities customarily associated with agriculture requires permit if removal or fill is in salmonid stream. Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251, 154 P3d 734 (2007), Sup Ct review denied

 

ATTY. GEN. OPINIONS: Right of private owner and ports to fill tidelands as subject to public rights, (1971) Vol 35, p 844; fresh water wetland or marsh area as “waters of this state” requiring permit prior to any filling or removal of material, (1979) Vol 39, p 690; Division of State Lands’ authority to require lease or fill or removal permit for private company to dredge submerged offshore lands to harvest clams, (1980) Vol 40, p 35; Approval of projects located within scenic waterway and involving less than 50 cubic yards of material, (1982) Vol. 42, p 211

 

      196.825

(formerly 541.625)

 

NOTES OF DECISIONS

 

      Evidence, that known fishery values of submerged Columbia River land proposed for fill appeared to be greater than speculative economic benefits of proposed fill, was insufficient as matter of law to support issuance of permit for fill. Moe v. Division of State Lands, 31 Or App 3, 569 P2d 675 (1977)

 

      Evidence was sufficient to support finding by Division of State Lands that public interest in best use of water resources was better served by retaining petitioner’s salt marsh in unimproved state, rather than permitting petitioner to fill 32 acres of marsh in order to construct recreational complex. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

 

      This section, together with [former] ORS 541.610 and rules promulgated by Division of State Lands, established identifiable standards for determining best use of petitioner’s land adjoining salt marsh. Saxon v. Division of State Lands, 31 Or App 511, 570 P2d 1197 (1977)

 

      Division’s rule that landfill projects are permissible only if for water-related purposes is consistent with legislative directive of this section that landfill projects may not “unreasonably interfere” with preservation of waters for navigation, fishery and recreational use. Morse v. Division of State Lands, 31 Or App 1309, 572 P2d 1075 (1977), Sup Ct review denied

 

      Director of Division of State Lands lacked authority to issue estuarian land fill permit for purpose of extending municipal airport runway, in absence of finding that public need for airport enlargement outweighed detriment to use of waters for navigation, fishing and recreational purposes. Morse v. Oregon Division of State Lands, 285 Or 197, 590 P2d 709 (1979)

 

      Where Director of Division of State Lands failed to make findings relating to public need for dike, order granting permit to maintain dike across tidal slough was reversed. 1000 Friends v. Div. of State Lands, 46 Or App 425, 611 P2d 1177 (1980), Sup Ct review denied

 

      Statutory scheme does not require division to determine what is the best use in given instance; it does require that uses enumerated in [former] ORS 541.610 be considered and that division find that proposed removal is not inconsistent with any one or more of them. Kalmiopsis Audubon Soc. v. Division of State Lands, 66 Or App 810, 676 P2d 885 (1984)

 

      Directive to consider alternatives to project for which fill or removal is proposed requires consideration of development facilitated by proposed fill or removal. Examilotis v. Department of State Lands, 239 Or App 522, 244 P3d 880 (2010)

 

      Department of State Lands may consider only project impacts associated with application’s fill and removal components. Examilotis v. Department of State Lands, 239 Or App 522, 244 P3d 880 (2010)

 

      Where port applied to Department of State Lands for dredge project permit necessary for proposed development at port, department was not required to consider post-construction operational effects when determining whether to issue fill/removal permit because “project” as used in subsection (1) of this section refers to development that involves removal or fill activity, not to ongoing operations once development is complete. Coos Waterkeeper v. Port of Coos Bay, 284 Or App 620, 395 P3d 14 (2017), aff’d 363 Or 354, 423 P3d 60 (2018)

 

ATTY. GEN. OPINIONS: Lessee filling tidelands as requiring a permit, public rights and conditions for issuance of permits, (1971) Vol 35, p 844

 

LAW REVIEW CITATIONS: 4 EL 353-354 (1974)

 

      196.830

(formerly 541.626)

 

ATTY. GEN. OPINIONS: Application of mitigation requirements to filling positions of McIntosh Slough, (1980) Vol 40, p 501

 

LAW REVIEW CITATIONS: 16 WLR 367 (1979)

 

      196.855

 

(formerly 541.645)

 

NOTES OF DECISIONS

 

      Division of State Lands enforcement procedure adequately protected public interests of citizens and was comparable to federal procedures under Clean Water Act; therefore private citizen’s suit under CWA regarding same violation was barred. Saboe v. State of Oregon, 819 F Supp 914 (1993)

 

      196.860

(formerly 541.650)

 

NOTES OF DECISIONS

 

      Traditional rules of equity apply to court’s enforcement powers under this section, so trial court may balance equities in fashioning its remedies. State ex rel Cox v. Davidson Ind., 291 Or 839, 635 P2d 630 (1981)

 

      196.880

(formerly 541.665)

 

ATTY. GEN. OPINIONS: Presumption as rebuttable, (1971) Vol 35, p 844

 

      196.905

 

NOTES OF DECISIONS

 

      “Maintenance” of farm road includes additional filling necessary to restore recently lost function of existent road, whether or not road is in serviceable condition at time of work. Owen v. Division of State Lands, 189 Or App 466, 76 P3d 158 (2003)

 

      Both listed activity and corresponding removal or filling must occur on “converted wetlands” or “exclusive farm use zoned lands.” Bridgeview Vineyards, Inc. v. State Land Board, 211 Or App 251, 154 P3d 734 (2007), Sup Ct review denied

 

      “Structure” means waterway that is excavated or designed to remove water, not waterway that is naturally created. Gienger v. Department of State Lands, 230 Or App 178, 214 P3d 75 (2009), Sup Ct review denied