HAYES OYSTER COMPANY v. DEPARTMENT OF AGRICULTURE (2026)

This case is before us after our remand in Hayes Oyster Co. v. Dept. of Agriculture, 333 Or App 133, 552 P3d 97 (2024) (Hayes II). In Hayes II, we concluded that the circuit court had erred in dismissing Hayes's claim to compel agency action under ORS 183.490, and we remanded to the circuit court for further proceedings on that claim. On remand, the parties filed cross-motions for summary judgment, and the circuit court granted summary judgment to the Oregon Department of Agriculture and its director (collectively, ODA). Hayes now appeals from the resulting judgment. We conclude that the circuit court did not err and affirm.

“On review of cross-motions for summary judgment, we view the record for each motion in the light most favorable to the party opposing it to determine whether there is a genuine issue of material fact and, if not, whether either party is entitled to judgment as a matter of law.” O'Kain v. Landress, 299 Or App 417, 419, 450 P3d 508 (2019).

We recite only those facts necessary to this appeal.¹ In 2001, the Oregon Department of Environmental Quality (ODEQ) issued a total maximum daily load (TMDL) for the Tillamook Bay Watershed, which “established that the amount of fecal coliform that can enter a waterbody for ‘[f]arm buildings and pastures that have had manure applied to them’ is zero (the zero Load Allocation).” Hayes II, 333 Or App at 136 (brackets in Hayes II). ODA is the designated management agency for the Tillamook Bay Watershed TMDL. Both parties agree that ODA is required to create an Agricultural Water Quality Management Area Plan (AWQMAP) to implement that TMDL. The parties part ways on whether ODA can fulfill that obligation with its North Coast Basin AWQMAP, the North Coast Basin AWQMAP rules that implement the non-voluntary components of the plan, and the Confined Animal Feeding Operation (CAFO) permit program. Hayes contends that ODA is required to adopt a separate AWQMAP as a rule that is specific to the Tillamook Bay Watershed TMDL and zero Load Allocation.

After unsuccessfully petitioning ODA to promulgate a rule to implement the Tillamook Bay Watershed TMDL, Hayes petitioned the circuit court, under ORS 183.490, for an order compelling ODA to “initiate rulemaking proceedings to implement the zero Load Allocation of the 2001 Tillamook Bay Watershed TMDL.” The circuit court dismissed that claim for failure to state a claim, and we reversed and remanded in Hayes II. We determined that Hayes had stated a claim under ORS 183.490, because the claim, as alleged, was not based on the insufficiency of ODA's North Coast AWQMAP and rules but, rather, was based on the allegation that ODA was required to adopt a plan as a rule specific to the Tillamook Bay Watershed TMDL and that ODA had not done so.² Hayes II, 333 Or App at 146-47.

On remand, the parties filed cross-motions for summary judgment on the merits of Hayes's ORS 183.490 claim. The circuit court granted summary judgment for ODA, stating:

“In conclusion, it appears that while Plaintiff desires that [ODA] implement the Tillamook Bay TMDL via new rules limited to Tillamook Bay (rather than the North Coast) instead of via the existing rules appended to the TMDL, the CAFO program and the North Coast Basin plan and rules, no rule or statute compels [ODA] to do so. In addition, Plaintiffs have not cited the Court to any portion of the TMDL itself that requires such rulemaking as alleged in the Corrected Amended Petition. The Court finds that the existing regulatory structure outlined by [ODA] is within its lawful discretion to fulfill its legal obligation to implement the terms of the Tillamook Bay TMDL.”

On appeal, Hayes argues that the circuit court erred because “the requirement [for ODA] to promulgate an AWQMAP specifically to implement the zero Load Allocation * * * is in the Tillamook Bay Watershed TMDL as an order.” (Underline omitted.) That is, Hayes argues that the source of law requiring ODA to initiate a new rulemaking to implement the Tillamook Bay Watershed TMDL is the Tillamook Bay Watershed TMDL itself. Hayes also points to a memorandum of agreement between ODEQ and the United States Environmental Protection Agency (EPA). Hayes asserts that ODA has not satisfied its obligation because ODA's adoption of the North Coast Basin AWQMAP, the North Coast Basin AWQMAP rules, and the CAFO permit program are not substantively sufficient to implement the zero Load Allocation of the Tillamook Bay Watershed TMDL.

Under ORS 183.490, “[t]he court may, upon petition as described in ORS 183.484, compel an agency to act where it has unlawfully refused to act or make a decision or unreasonably delayed taking action or making a decision.” Here, Hayes's claim is that the Tillamook Bay Watershed TMDL required ODA to adopt an AWQMAP as a rule specific to the Tillamook Bay Watershed, but that ODA has refused to do so, instead relying on the North Coast Basin AWQMAP, the North Coast Basin AWQMAP rules, and the CAFO permit program. See Hayes II, 333 Or App at 146-47 (explaining on what basis Hayes had stated a claim under ORS 183.490). The problem with Hayes's argument on appeal in support of that claim is that Hayes has not pointed to anything in the Tillamook Bay Watershed TMDL, or elsewhere, that requires ODA to promulgate an AWQMAP and rules that are specific only to the Tillamook Bay Watershed.³ Rather, ODA has authority to set the boundaries of the land subject to an AWQMAP that it is required to develop due to a TMDL. See ORS 568.909(1)(a) (“The State Department of Agriculture may describe the boundaries of agricultural and rural lands that are subject to a water quality management plan * * * [d]ue to a determination by the Environmental Quality Commission to establish a Total Maximum Daily Load for a body of water under the [Clean Water Act] (33 U.S.C. 1313) [.]”); see also ORS 568.909(2) (“For an area whose boundaries have been designated under this section, the department shall develop and carry out a water quality management plan for the prevention and control of water pollution from agricultural activities and soil erosion. The department shall base the plan and rules adopted to implement the plan upon scientific information.”).⁴

We agree with the circuit court that Hayes's inability to locate a source of law that requires ODA to engage in the specific rulemaking sought by Hayes is fatal to its ORS 183.490 claim. The gravamen of Hayes's arguments is truly that the actions that ODA has taken are insufficient to faithfully implement the zero Load Allocation for the Tillamook Bay Watershed. However, Hayes's arguments about the substantive deficiency of the North Coast Basin AWQMAP, the North Coast Basin AWQMAP rules, and the CAFO permit program to implement the zero Load Allocation are not cognizable under an ORS 183.490 claim. See Salibello v. Board of Optometry, 276 Or App 363, 368, 367 P3d 932 (2016) (“Review under ORS 183.490 is available when an agency has not issued a ‘final’ order and allows the circuit court to compel an agency to act ‘with greater alacrity,’ although not to compel the agency to act in a particular way.”); Mendieta v. Division of State Lands, 148 Or App 586, 594, 941 P2d 582 (1997), rev. dismissed, 328 Or 331 (1999) (holding that ORS 183.490 does not “afford[ ] relief for erroneous agency action * * * the APA elsewhere expressly provides for review in those circumstances”).

In a second assignment of error, Hayes argues that the circuit court erred in not applying an adverse inference to ODA's failure to produce a supporting affidavit from ODEQ. Hayes appears to assert that, because the Oregon Department of Justice represents both ODA and ODEQ, the circuit court should have applied an adverse “missing witness” inference because ODA did not present an affidavit on what the Tillamook Bay Watershed TMDL requires from ODEQ's perspective. See Cler v. Providence Health System-Oregon, 349 Or 481, 489, 245 P3d 642 (2010) (discussing when a “missing witness” inference, as described in 2 McCormick on Evidence § 264, 220 (6th ed. 2006), may be argued to the jury). However, the circuit court concluded that there were no genuine issues of disputed material fact on summary judgment, and, on appeal, Hayes has not identified any genuine issues of disputed material fact in the record that would preclude the circuit court from granting summary judgment. Arguing for an adverse evidentiary inference has relevance only when there are disputes of fact to be resolved. Hayes has not identified any reversible error in its second assignment of error.

Affirmed.

FOOTNOTES

1.   For additional background, see Hayes Oyster Co. v. DEQ, 316 Or App 186, 504 P3d 15 (2021), rev. den., 369 Or 507 (2022) (Hayes I), and Hayes II.

2.   We note at the outset that we reject Hayes's reading of Hayes II offered at oral argument that suggested we had addressed some of the merits of Hayes's claim in that case. To the contrary, the statements in Hayes II relied on by Hayes were about Hayes's allegations in the complaint having sufficiently stated a claim under ORS 183.490 and not about the merits of those allegations or the sufficiency of the North Coast Basin AWQMAP and rules. 333 Or App at 146-47.

3.   Of note, the memorandum of agreement between ODEQ and EPA that Hayes relies on includes a provision that “ODA will convene an advisory committee in developing AWQMAPs to assist in development, and to determine the boundary within which the plan will apply.” (Emphasis added.) That memorandum also contemplates that AWQMAPs may be prepared before a TMDL: “If an AWQMAP is prepared before a TMDL, the AWQMAP will be reevaluated after the TMDL is prepared to ensure that the load allocation for agricultural sources is met.”

4.   In its reply brief and at oral argument, Hayes for the first time on appeal argues that ORS 568.909 is the source of law that requires ODA to adopt an AWQMAP that is specific to the Tillamook Bay Watershed TMDL, because the agency under that statute that designates AWQMAP boundaries is ODEQ through establishment of the TMDL. Although we agree that ORS 568.909 requires ODA to adopt an AWQMAP due to a TMDL, and ODA does not assert otherwise, that statute also, by its plain text, states that it is ODA that may describe the boundaries of the land subject to the AWQMAP due to a TMDL. We do not further address Hayes's late-raised argument.

ORTEGA, P. J.