ORS 536.075
Judicial review of final order of commission or department
- stay of order
- scope of review
(1)
Any party affected by a final order other than contested case issued by the Water Resources Commission or Water Resources Department may appeal the final order to the Circuit Court of Marion County or to the circuit court of the county in which all or part of the property affected by the final order is situated. Review of the final order must be conducted according to the provisions of ORS 183.484 (Jurisdiction for review of orders other than contested cases), 183.486 (Form and scope of decision of reviewing court), 183.497 (Awarding costs and attorney fees when finding for petitioner) and 183.500 (Appeals). The first page of the final order must state that the final order is a final order other than contested case, that the final order is subject to judicial review under ORS 183.484 (Jurisdiction for review of orders other than contested cases) and that any petition for judicial review of the final order must be filed within the time specified by ORS 183.484 (Jurisdiction for review of orders other than contested cases) (2). Any order other than contested case issued by the commission or department that does not comply with the requirements of this section is not a final order.(2)
Any party affected by a final order in a contested case issued by the commission or department may appeal the order to the Court of Appeals.(3)
An appeal under subsection (2) of this section shall be conducted as provided in ORS 183.482 (Jurisdiction for review of contested cases) except as specifically provided in this section.(4)
The petition for review shall state the facts showing how the petitioner is adversely affected by the final order and the ground or grounds upon which the petitioner contends the final order should be reversed or remanded.(5)
Except as provided in subsections (6) and (7) of this section, the filing of a petition for review in either the circuit court or the Court of Appeals shall stay enforcement of the final order.(6)
If the commission or department determines that substantial public harm will result from staying the final order, the commission or department may deny the stay. The denial shall be in writing and shall specifically state the substantial public harm that will result from staying the final order. Notwithstanding any contrary provision of law, if the petitioner requests a hearing on the denial:(a)
The court shall hold the hearing not more than 21 days after the request is made; and(b)
The denial shall remain in effect until the hearing has been held and the court has issued a decision concerning the denial.(7)
Enforcement of a final order that regulated off a diversion, appropriation or other use of surface or ground water in favor of a senior existing water right of record or senior determined claim:(a)
May only be stayed on appeal if the petition for review is served on the commission or department and proof of the service is filed with the court.(b)
Is not stayed if the commission or department denies the stay under subsection (6) of this section.(8)
If the commission or department receives service of a petition for review pursuant to subsection (7) of this section, not more than five business days after receiving the service the commission or department shall send the petition to the person or federally recognized Indian tribe that made the call for water to enforce the senior existing water right of record or senior determined claim.(9)
The review by the Court of Appeals under subsection (2) of this section shall be on the entire record forwarded by the commission or department. The court may remand the case for further evidence taking, correction or other necessary action. The court may affirm, reverse, modify or supplement the order appealed from, and make such disposition of the case as the court determines to be appropriate.(10)
The provisions of this section do not apply to any proceeding under ORS 537.670 (Determination of rights to appropriate ground water of ground water reservoir) to 537.695 (Conclusive adjudication) or ORS chapter 539.(11)
For the purposes of this section:(a)
“Contested case” has the meaning given that term in ORS 183.310 (Definitions for chapter).(b)
“Determined claim” means a water right determined and established in an order of determination certified by the Water Resources Director under ORS 539.130 (Findings of fact and determination of director).(c)
“Existing water right of record” has the meaning given that term in ORS 540.045 (Watermaster duties).(d)
“Final order” has the meaning given that term in ORS 183.310 (Definitions for chapter). [1985 c.673 §9; 1999 c.791 §1; 2021 c.354 §1]
Source:
Section 536.075 — Judicial review of final order of commission or department; stay of order; scope of review, https://www.oregonlegislature.gov/bills_laws/ors/ors536.html.
Notes of Decisions
Water Resources Department is not required to issue order when denying reconsideration. Harrington v. Water Resources Department, 216 Or App 16, 171 P3d 1001 (2007)
“Party affected” means any petitioner affected by Water Resources Department order whether or not that petitioner achieves formal party status. Pete’s Mountain Homeowners Ass’n. v. Water Resources Department, 236 Or App 507, 238 P3d 395 (2010)
Up to date