Summary of a Recent
Judicial Development in
Clean Water Act

Vineyard Required to Halt Filling of Creek Home to Salmon Population

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Bridgeview Vineyards, Inc. v. State Land Board, 154 P.3d 734 (Or. Ct. App. 2007), the Oregon Court of Appeals reversed and remanded the trial court's decision in part, and affirmed the trial court's denial of attorney fees. The trial court granted Bridgeview Vineyard's (Bridgeview) motion for partial summary judgment on its claim that its proposed activity was exempt from Oregon permitting requirements. The court of appeals reversed the grant of partial summary judgment, holding that none of the Oregon fill and removal exceptions or exemptions applied to Bridgeview's proposed activity.

Background

In January 1999, Bridgeview asked the Oregon Division of State Lands (DSL) for emergency authorization to add riprap, hard rock, to Sucker Creek. Id. at 736. The creek was designated as salmonid habitat. Id. After DSL denied the authorization, Bridgeview sought judicial review, alleging that its proposed filling activity was exempted from state permitting requirements and fit within various exceptions. Id. The circuit court agreed with Bridgeview and granted its request for partial summary judgment. Id. According to the circuit court's ruling, Bridgeview's proposed filling activity was excepted from permit requirements under Oregon Revised Statute 196.810(1)(b). Id. at 740. It reasoned that a plain reading extends the (1)(b) exception to nearly limitless bounds. Id. DSL appealed. Id.

Arguments

DSL argued that the circuit court construed the removal and fill exception, contained in Oregon Revised Statute 196.810(1)(b), too broadly. Id. It asserted that none of the exemptions or exceptions to obtaining a permit applied to Bridgeview. Id.

Bridgeview reasserted their arguments that DSL incorrectly concluded that no emergency existed to justify the request, and fill and removal law did not apply to its proposed activity. Id. at 738. Bridgeview argued that the addition of riprap to Sucker Creek should be construed as erosion control work customarily associated with agriculture, which was exempted under Oregon Revised Statute 196.810 (1)(b). Id.

Analysis and Holdings

The court examined the legislative history behind and the text of Oregon Revised Statute 196.810, and determined that, even in connection with agricultural activities, a permit is required to fill or remove 50 cubic yards or more of material in a salmonid stream. Id. at 743. By not providing the specific volume of riprap it used in the record, Bridgeview failed to meet its evidentiary burden to receive a permit exemption pursuant to Oregon Revised Statute 196.810. Id.

Additionally, the court examined the statutory construction of the fill and removal exemptions in Oregon Revised Statute 196.905, and held they did not apply to Bridgeview's activities for the following reasons: (1) the stream was not converted wetland on which Bridgeview conducted normal farming activities; (2) the stream was not on the same site as Bridgeview's roads; and (3) there was no evidence that proposed activity would not adversely affect wetlands. Id. at 749. Because the exceptions and exemptions to the permitting process did not apply, the court held that the trial court erred in granting Bridgeview's motion for partial summary judgment. Id. The court did affirm the trial court's denial of attorney fees because the trial court's judgment was dismissed on the merits. Id.

The case was decided on March 14, 2007.