Hugh Muller v. State of Oregon, acting by and through the Department of Agriculture

Negligence - Farming Permit - Plaintiff initiated this negligence action against the Oregon
Department of Agriculture (department), seeking damages for losses
he suffered when the department denied his application to burn his
grass seed fields. The department moved for dismissal of the
action on the ground that exclusive review of its denial lies
under the Administrative Procedure Act (APA), ORS 183.310 to
183.550. The trial court denied the motion. The matter went to
trial.

The facts necessary to the disposition of this appeal are not in
dispute. Plaintiff is a grass seed farmer in Polk County and burns
his fields to remove debris and prepare them for the next growing
season. In the spring of 1991, he paid the department the required
permit fees and obtained a permit to burn his grass seed fields.
Meanwhile, in 1991, the legislature increased the permit fee,
effective July 1, 1991. 1991 Or. Laws, ch 920, §§ 13, 17. After
that date, plaintiff burned his fields. He then received an
invoice from the department for the increased permit fees. He did
not pay the fees.

In the spring of 1992, plaintiff applied for a permit to burn 221
acres of his grass seed fields. The department denied the permit
application because plaintiff had failed to pay the additional
1991 field-burning permit fee. Plaintiff requested a contested
case hearing on the denial of his application for a 1992
field-burning permit, disputing the authority of the department to
impose the additional fee for burning in 1991. On September 21,
1992, plaintiff paid the additional 1991 burn fee into escrow. By
that time, however, only two days remained in the field-burning
season. The department allowed him the two days to burn 125 of the
221 acres of grass seed fields. Plaintiff burned 125 acres and
cleared the balance of the acreage using a "stack and burn" method
that he contends is less effective and more labor intensive and,
hence, more costly, than open field burning.

An administrative law judge (ALJ) conducted a hearing on
plaintiff's challenge to the decision to deny the 1992 burn permit
until the additional 1991 burn fee was paid. In March 1993, the
ALJ issued a proposed order holding that the issuance of a 1992
permit could not be conditioned on the payment of the 1991 fees.
The ALJ issued no final order, however. The case apparently still
is pending.

In November 1993, plaintiff completed crop analysis of his fields,
which revealed that the 1993 yield on the burned fields was
substantially greater than the yield on the unburned fields.
Believing that the department should be held responsible for the
reduced yield on the unburned fields, plaintiff filed a notice of
intention to bring a tort claim and, in August 1995, filed a
complaint initiating this action for negligence. In his complaint,
plaintiff alleged:

"Because of the defendant's refusal to timely issue a valid
field burning permit, plaintiff could burn only 125 acres of
the 221 acres he had registered. As a result, plaintiff was
forced to forego field burning, as historically performed by
plaintiff on these fields. Rather, plaintiff was required to
clear the remaining acres using the `stack and burn' method.
* * *

"* * * * *

"As a result of defendant's unauthorized refusal to allow
plaintiff to register and burn his fields during the 1992
burning season, plaintiff suffered damages in the form of
reduced profits and increased expenses * * *."

Plaintiff alleged that the department was negligent in "failing to
allow plaintiff to register his fields in accordance with the
requirements of statutory provisions and rules in effect at all
material times."

The department moved to dismiss on the ground that, among other
things, the trial court lacked jurisdiction to review the agency's
decision not to permit plaintiff to burn his fields. According to
the department, the validity of that decision is a matter subject
to the exclusive review procedures of the APA. The trial court
denied the motion. The department later raised the same issue by
way of unsuccessful motions for summary judgment and for a
directed verdict.

Plaintiff's verdict for damages of an undisclosed amount.

Unknown

Unknown

Reversed and remanded with an order dismissing action against the department by the Court of Appeals of Oregon. See: ___ P.2d ___, 164 Or. App. ___ (11-3-1999). Note: The above date reflects the appellate court decision date, not the original trial date. Reported by kkm.