Marion County Circuit Court Opinion

Verified Correct Copy of Original 10/30/2024.

Daniel J. Wren

Circuit Court of Oregon

Circuit Court Judge Office Location: 100 High N.E.

Third Judictal District Mailing Address: Marion County Courthouse P.O. Box 12869 Salem, Oregon, 97309-0869

Salem, Oregon Phone: 503-584-7765 Fax: 503-373-4360

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October 30, 2024

RE:

Douglas County, Umpqua Fishery Enhancement Derby, Inc and Scott Worsley v. Oregon Fish and Wildlife Commission and the Oregon Department of Fish and Wildlife Marion County Case # 22CV13979

Counsel:

Two matters properly came before the court for resolution on October 21, 2024. First, Petitioners filed a Motion for Leave to File First Amended Petition for Judicial Review and Complaint for Declaratory Relief and Injunction and second, Petitioners filed Petitioners' Motion for Temporary Restraining Order/Preliminary Injunction.

In preparation for the hearing, the court reviewed (1) both of Petitioner's motions, (2)

Respondent's Response in Opposition to Petitioner's Motion for Leave to File First Amended Petition for Judicial Review and Complaint for Declaratory Relief and Injunction, (3) Respondent's Opposition to Petitioners' Motion for Temporary Restraining Order and Preliminary Injunction, (4) Petitioners' Consolidated Reply in Support of Motion to File First Amended Petition, and Motion for Preliminary Injunction or Temporary Restraining Order, and (5) the Amici Curiae Response Brief to Petitioners' Motion for Temporary Restraining Order/Preliminary Injunction (The court considered the Amici Curiae Brief after denying Petitioners Motion to Strike).

Procedural History: All parties involved with this matter are familiar with the lengthy procedural history and timeline of this case. will not recite the entire history here but will reiterate the Court of Appeals determined the Oregon Fish and Wildlife Commission's decision to terminate the summer steelhead hatchery program at the Rock Creek Hatchery was neither an order nor rule, effectively removing any possible remedy under Oregon's Administrative Procedures Act (APA). The Court of Appeals transferred the case back to this court on August 15, 2024, for dismissal of the APA claims and further proceedings on the remaining ORS 183.490 claim.

I

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The court held a status conference on September 11, 2024, where petitioners gave notice of their intent to file a Motion for Leave to Amend their pleadings, understanding the APA claims were going to be dismissed. Petitioners further requested the court to keep the previous preliminary injunction (Pl) in place. The court informed the parties that the APA claims which supported the P| were being dismissed so the P! would also be terminated. Petitioners informed the court they would also be seeking a new PI when filing their Motion for Leave to Amend. On September 23, 2024, this court signed an order dismissing the APA claims and terminating the preliminary injunction.

Analysis and Order: Motion for Leave to Amend

Petitioners are seeking leave to amend their original petition, pursuant to ORCP 23.

This motion is in response to the recent Court of Appeals decision indicating there is no remedy from the Oregon Fish and Wildlife Commission's termination decision under the

APA.

ORCP 23(A) reads:

"A pleading may be amended by a party once as a matter of course at any time before a responsive pleading is served ... Otherwise a party may amend the pleadings only by leave of the court or by written consent of the adverse party: and leave shall be freely given when justice so requires.

(emphasis added)

The plain language of ORCP 23(A) authorizes the court to exercise discretion when granting leave to amend, and "leave shall be freely given". It is this court's

understanding a main factor to consider when determining a motion to amend is whether there is unfair prejudice to the non-moving party. The Oregon Department of Fish and Wildlife (ODFW) has not forwarded any arguments indicating they would be prejudiced by granting this motion. Instead, ODFW is relying on a futility argument. The court is not making any legal determinations regarding ODFW's futility argument, however, reliance on a futility argument at this stage of the proceeding is not convincing.

Absent a showing of prejudice by ODFW, the court will allow petitioners motion to file its first amended petition.

Motion for Temporary Restraining Order/Preliminary Injunction

As discussed in the hearing on October 21, 2024, the court felt it necessary to reach a decision regarding the Motion for Leave to Amend prior to exploring whether or not to issue a new Temporary Restraining Order (TRO)/Preliminary Injunction (Pl). Now that

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the court is allowing Petitioners Motion for Leave to Amend, it is necessary to further examine the information presented and determine whether the court should grant or deny petitioners request for new TRO/PI. Petitioners have filed this motion pursuant to Cca

ORCP 79.

Under ORCP 79, a TRO/PI may be allowed under the following circumstances:

79(A)(1)(a) When it appears that the party is entitled to relief demanded in a pleading, and such relief, or any part thereof, consist of restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to the party seeking the relief; or

79(A)(1)(b) When it appears that the party against whom a judgment is

sought is doing or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of the party seeking judgment concerning the subject matter of the action, and tending to render the judgment ineffectual.

Both parties agree Elkhorn Baptist Church v. Brown, 366 OR 506, 466 P.3d 30 (2020) further clarifies what is necessary to successfully obtain a TRO/PI. "Under Oregon law, an injunction, whether preliminary or permanent in nature, 'is an extraordinary remedy and will be granted only upon clear and convincing proof." id at 543-544 (Citations omitted). There are four factors courts use "to determine whether to grant or deny a preliminary injunction: (1) whether the plaintiff might suffer irreparable harm without an injunction; (2) the balance of equities, hardships, and conveniences between the parties; (3) whether the public interest weighs for or against an injunction; and (4) the plaintiff's likelihood of success on the merits." /d at 544.

Further, "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. National Resources Defense Council, Inc. 555 US 7, 2021 (2008) (emphasis added). This language indicates all four elements must be shown by clear and convincing evidence before a court may grant TRO/PI. Cca

When the court initially granted Petitioners request for a PI on May 19, 2022, the Rock Creek Hatchery was just recovering from a wildfire. There was testimony/argument presented indicating a two-year span without releasing smolts would effectively terminate the summer steelhead program. If the court would have not granted petitioners PI request back then, 2 years would have passed, the program would have been gone and petitioners would have no potential remedy to their petition. The court concluded, at that time, there was an immediate need to issue the PI and the four factors could be proven by clear and convincing evidence. Today, however, we are ina much different posture. There has been a prior PI in place since May 19, 2022, or more

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than 2 years, and the court cannot find petitioners will suffer irreparable harm without the granting of a PI.

With this determination alone, the court does not need to even explore the other factors detailed in Elkhorn Baptist Church. Therefore, for the reasons outlined above the court is denying Petitioners' Motion for Temporary Restraining Order/Preliminary Injunction.

Mr. Smith will prepare an order consistent with the court's ruling regarding the Motion for Leave to File First Amended Petition for Judicial Review and Complaint for Declaratory Relief and Injunction. Mr. Jones will prepare an order consistent with the court's ruling regarding Petitioners' Motion for Temporary Restraining Order/Preliminary Injunction. Please have the orders submitted to the court within the next 2 weeks.

Sincerely,

Daniel J. Wren Circuit Court Judge