Oregon Shores Conservation Coalition v. Oregon Fish & Wildlife Commission

No. A25851 (662 P.2d 356, 62 Or. App. 481) (Or. Ct. App. April 13, 1983)

ELR Digest

The court sustains the Oregon Fish and Wildlife Commission's issuance of a permit to oyster growers for application of the pesticide Sevin to state-leased oyster beds in Tillamook Bay. State had established, and the Environmental Protection Agency had conditionally validated, a special local needs registration for the use of Sevin to control mud and ghost shrimp in Oregon under § 24(c) of the Federal Insecticide, Fungicide, and Rodenticide Act. Petitioners first contend that when the permit was issued, the target beds did not meet the EPA restrictions for Sevin application. The court holds that the permit satisfies the registration requirements since it (1) mandates compliance with the EPA restrictions before the actual spraying of Sevin, (2) conditions application in months other than those approved in the current registration upon EPA's amendment of its registration, and (3) provides for an adequate monitoring program.

Next, petitioners claim that the permit violates OR. REV. STAT. § 509.505, which outlaws discharge of any substance that injures shellfish. The court rules that although the statute is ambiguous and in apparent conflict with OR. REV. STAT. § 509.140, which requires a permit for the "necessary" use of "any substance deleterious to fish," the permit law is an exception to the general prohibition in the discharge law. In addition, it accepts the Commission's interpretation of the word "necessary" to mean reasonably necessary to private activities and holds that the administrative record reasonably supports the Commission's finding of necessity.

Finally, petitioners claim that the permit was issued without consideration of the public's trust interest in the estuary. The court notes that state laws grant only limited rights to the lessees of oyster beds while preserving the public's right to customary use of the submerged lands. The court further notes that the Commission made specific findings on the impact of Sevin on aquatic life, recreational use, and biological productivity of the estuary. The court rules that these findings were supported by the record and constitute sufficient consideration of public trust rights.

The full text of this opinion is available from ELR (10 pp. $1.75, ELR Order No. C-1320).

Counsel for Petitioners
Steven R. Schell
Black, Helterline, Beck & Rappleyea
1200 Bank of Cal. Twr., 707 SW Washington St., Portland OR 97205
(503) 224-5560

James S. Coon
Oregon Environmental Council
2637 SW Water Ave., Portland OR 97201
(503) 222-1963

Counsel for Respondents
Mary J. Deits, Stanton F. Long; Dave Frohnmayer, Attorney General
Department of Justice, 100 State Office Bldg., Salem OR 97310
(503) 378-4400

Counsel for Respondents-Intervenors
David A. Rhoten
Rhoten, Rhoten & Speerstra
3d Floor, Pioneer Trust Bldg., Salem OR 97301
(503) 364-6733

Richardson, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]