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Oregon Supreme Court Allows Coos Bay Terminal Project to Move Forward



On July 26, 2018, the Oregon Supreme Court affirmed the Court of Appeals in its affirmance of a Department of State Lands' (DSL) final order granting a permit to the Port of Coos Bay that allows the Port to dredge 1.75 million cubic yards of material from the bay for a deep water marine terminal. Coos Waterkeeper v. Port of Coos Bay, 363 Or 354 (2018). DSL issued the permit under ORS 196.825, which contains a number of approval criteria applicable to the applicant's "project." Petitioners argued that the "project" is the "construction, existence, and operation" of the terminal and that DSL erred in failing to consider negative effects of the operation of the terminal when it reviewed the Port's application. The Court disagreed, and held instead that ORS 196.825 in this case was limited to the impacts of removal and fill activity, and the construction of the proposed development. The Court reached that conclusion by analyzing ORS 196.825 according to the standard rules of statutory interpretation, and determined that the text and legislative history of the statutory provisions were not consistent with a requirement that DSL analyze ongoing operations.

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