Noble v. Dep’t of Fish & Wildlife

Noble v. Dep’t of Fish & Wildlife, 326 P.3d 589 (Or. 2014) (holding that the Department of Fish and Wildlife implausibly interpreted the fish passage rule, which requires that fishways provide fish passage at all flows within the design streamflow range, and erroneously decided that it was unnecessary to calculate the design streamflow range for channel-spanning fishways).

Property owners (“Petitioners”) expended significant resources improving fish habitat on their portion of a stream feeding into Beaver Creek, which historically supported cutthroat trout and other migratory fish. Petitioners challenged the Oregon Department of Fish and Wildlife’s (“ODFW”) approval of “channel-spanning fishways” associated with two dams downstream from their property. The dams at issue were constructed long ago, without any water rights or permits, and obstructed the stream, creating small ponds. The dam owners later obtained permits through the state Water Resources Department (“WRD”) allowing them to store up to one acre-foot of water during certain months of the year. The permits required that: (i) the owners pass all live flow outside of the defined storage season; (ii) no water be appropriated for any out of reservoir uses, or for the maintenance of water levels or fresh water conditions; and (iii) the owners install outlet pipes to evacuate water to satisfy prior downstream water rights. Additionally, the dam owners were required to provide adequate fish passage as determined to be necessary by ODFW.

The dam owners, having committed to providing year-round fish passage, installed channel-spanning fishways, which were subsequently approved by ODFW. Channel-spanning fishways provide fish passage only when water is moving over the top of the dam. Petitioners sought reconsideration of ODFW’s fishway approvals.

Or. Rev. Stat. § 509.585(2) prohibits the construction or maintenance of any artificial obstruction across “waters of [the] state that are inhabited, or historically inhabited, by native migratory fish without providing passage” for those fish. Or. Admin. R. 635-412-0035(2)(a) requires that such fishways provide fish passage at all flows within the design streamflow range; meaning the entire range of flows within the obstructed stream, except the highest and lowest five percent. However, ODFW did not calculate the stream’s “design flow range,” or determine when fish passage was required, prior to approving the fishways. ODFW determined that it was unnecessary to calculate a design flow range because the fishways used the entire flow of the stream and provided fish passage whenever water flowed past the dam. The Petitioners argued that this approach did not account for water leaving the ponds as a result of evaporation, seepage, or the evacuation of water through the outlet pipes. ODFW argued that these waters were not in the stream and, thus, would not be considered “streamflow.”

After a hearing, the administrative law judge determined that ODFW had complied with all applicable statutes and rules in approving the fishways. ODFW affirmed the administrative law judge’s conclusion and issued a final order announcing that “fish passage is required ‘year-round’ only where there is adequate flow to allow migration through the fishways.” Further, the agency concluded that “streamflow” meant only that water which passed over the dams and did not include water lost to evaporation, seepage, or evacuation.

Upon judicial review, the Court of Appeals determined that ODFW plausibly interpreted the terms “year-round fish passage” and “streamflow,” rejected the Petitioners’ argument that ODFW’s interpretations were inconsistent with Or. Rev. Stat. § 509.585(2), and affirmed ODFW’s final order. The Supreme Court of Oregon (“Court”) accepted the Petitioners’ petition for review to consider ODFW’s interpretation and application of its own rules.

To resolve the drafters’ intent and interpret an administrative rule, the Court considers the text of the rule and the rule’s regulatory and statutory context. According significant deference to the agency’s interpretation, the Court is required to affirm the agency’s interpretations so long as it constitutes a “plausible” reading of the rule.

The Court began its analysis by interpreting the meaning of Or. Admin. R. 635-412-0035(2)(a), which requires that fishways “provide fish passage at all flows within the design streamflow range.” The Court first addressed ODFW’s final order assertion that the definition of “design streamflow range” limits the agency’s calculation of streamflows to the period that native migratory fish require fish passage. Because the dam operators in this case chose to provide year-round fish passage, the Court concluded that a determination as to when fish passage was required was irrelevant.

The Court then addressed Petitioners’ argument that dam owners must provide “year-round fish passage” at all flows in the stream—not the fishway—falling within the design streamflow range. ODFW construed the phrase “year-round fish passage” to mean only that the channel-spanning fishway structure must always be “on,” making fish passage available whenever there was enough water flowing over the dam, within the fishway, to allow for fish migration. ODFW asserted that channel-spanning fishways provide fish passage “as a matter of law” whenever sufficient streamflow exists for fish to migrate. However, as Or. Admin. R. 635-412-0035(2)(a) was adopted with traditional diversion-style fishways in mind, as opposed to channel-spanning fishways, the Court determined that the phrase “year-round fish passage” must have a meaning that was plausible within that context. Traditional fishways were not always “on,” but operated as a result of purposeful diversion of water into the fishway. Thus, the Court determined that, when ODFW adopted the rule, it intended “year-round fish passage” to mean fish passage throughout the year, whenever the flow “within the stream” falls within the “design streamflow range.”

Having resolved the proper meaning of “year-round fish passage,” the Court turned its attention to ODFW’s interpretation of the term “streamflow.” ODFW had not promulgated a definition of the term “streamflow,” but had defined the terms “stream” and “channel,” both of which contemplate waters moving within a defined bed. ODFW argued that, in the case of channel-spanning fishways, the “stream” is the water that flows over the dam. This does not include water stored behind the dam that later evaporates, or water that is released downstream through outlet pipes, because these waters do not move within a defined bed. In evaluating the plausibility of ODFW’s interpretation, the Court looked to the rule’s context and contemplated the mandate, set forth in Or. Admin. R. 635-412-0020(1), which states that “[n]o person shall construct or maintain any artificial obstruction across any waters of this state that are inhabited, or were historically inhabited, by native migratory fish without providing passage for native migratory fish.” The Court also considered Or. Admin. R. 635-412-0005(18), which provides that the “fish passage” required by Or. Admin. R. 635-412-0020(1) is passage that meets the biological/life cycle needs of historically present native migratory fish.

The Court determined that, under ODFW’s interpretation, where “streamflows” would only include water flowing over the dam, the necessity for providing fish passage would be determined only by the height of the dam and configuration of outlet pipes, and not by the biological needs of the fish. Applying ODFW’s definition, a high dam would meet the requirements of the fish passage rule if all outflow passed through the outlet pipes and no water passed over the dam at all. The Court found that ODFW’s interpretation of “streamflows” conflicted with the requirement that operators provide fish passage that meets the biological and life cycle needs of fish and, therefore, ODFW’s interpretation was implausible. Recognizing that ODFW might argue that its approach to “design streamflow range” requirements differed for large dams with fish ladders, the Court noted that ODFW was free to engage in proper rulemaking procedures to issue different rules for various categories of dams and fishways. However, until it did so, the agency was bound by the promulgated rules.

The Court next considered ODFW’s argument that its interpretation was necessitated by conflicting statutory obligations. ODFW argued that its interpretation struck a balance between its obligation under the fish passage statute, and its obligation to protect the right of property owners to maintain small ponds on their property, even where dams, which might interfere with fish passage, created those ponds. The Court noted that the statutes referred to by ODFW created such rights only so long as they did not injure other water rights or existing fish resources. Further, the Court determined that, as the right of property owners to maintain small ponds did not conflict with the requirement that such artificial obstructions provide fish passage, these statutes did not create conflicting obligations on the part of ODFW.

Lastly, the Court considered ODFW’s contention that, because the authority to control the existence and design of dams was delegated to WRD, it must accept the existence and configuration of any WRD-permitted dam. ODFW argued that it had no authority to regulate when water flows through the dam’s outlet pipes, and therefore it must consider that water unavailable for fish passage and base its fish passage requirements on only the “streamflow” that passes over the dam. The Court, unpersuaded by this argument, pointed out that ODFW really has “no control over any aspect of streamflow,” and determined that this did not relieve the agency of its duty to require dam owners to provide fish passage within a “design streamflow range.”

Accordingly, the Court concluded that ODFW implausibly interpreted Or. Admin. R. 635-412-0035(2)(a). And because ODFW relied upon this interpretation as the basis for its determination not to calculate the design streamflow range, the Court held that the agency’s determination was erroneous. The Court reversed the decision of the Court of Appeals and the Final Order on Reconsideration of the ODFW, and remanded the case back to ODFW to determine the design streamflow range and determine whether the fishways in question provide passage at all flows within that range during the period of time that ODFW determines fish passage is required.


The title picture is one view of Beaver Creek. This image is licensed under the Creative Commons Attribution-Share Alike 3.0 Unported License to M.O Stevens who does not endorse this blog.