March 2, 2007
Mar. 6: Oregon Supreme Court hears Astoria pollution case and Lakeside personal injury case at law school
The Oregon Supreme Court will hear arguments in an Astoria environmental pollution case and a personal injury liability case against the city of Lakeside during its annual visit to the law school on Tuesday, March 6.
The following Justices will preside: Chief Justice Paul DeMuniz, Associate Justices Thomas Balmer, Robert Durham, Michael Gillette, Rives Kistler, Virginia Linder, and Martha Walters.
In the first case, the court will be asked to clarify the time frame when a person must seek judicial review of a state agency decision. Issues in the second case involve competing laws on when a claim needs to be filed under the Oregon Tort Claims Act.
9:00-10:00 a.m. ETU, Inc. v. Environmental Quality Commission
While upgrading his underground gas tanks near Astoria, Ed Niemi, the owner of a Warrenton gas station, was told to clean up contaminated soil and water near the tanks. He did not do it to the Department of Environmental Quality’s satisfaction for three years.
When the owner’s current attorney, Allan Bakalian, became involved, he asked the DEQ to notify him if they intended to take action. The DEQ told Bakalian it was in the process of issuing penalties. However, the agency sent the official notice of violation and penalty assessment to the gas station owner’s registered agent, not to his attorney.
The DEQ did not hear from the owner or his agents for twenty days, at which time the penalty became final. Shortly after that, the attorney requested a late hearing and the DEQ denied it.
Five months after the penalty became final, the attorney requested judicial review of the agency’s decision. (Ordinarily, a person must challenge such a decision within 60 days after a penalty becomes final.)
The Supreme Court will consider whether the DEQ properly refused the request for a late hearing. The Court will also clarify the time frame in which a person must seek judicial review of a state agency’s decision.
For petitioners on review: Allan B. Bakalian practices environmental law with Hanson Baker Ludlow Drumheller P.S. in Bellevue, Washington
For respondent on review: Brendan C. Dunn is an assistant attorney general in the Appellate Division of the Oregon Department of Justice.
(Justice Linder will not participate)
10:30-11:30 a.m. Baker v. City of Lakeside
On August 31, 2002, Kathryn R. Baker was injured when a truck driven by a Lakeside city employee collided with her car. She filed a complaint in the county courthouse within the two-year statute of limitations established by the Oregon Tort Claims Act.
(The Oregon Tort Claims Act allows people to make claims against local governments.)
Within 60 days after filing, but after the two-year statute of limitations had run out, Baker notified the City of Lakeside of her allegations. (Typically, a plaintiff must serve a defendant within 60 days of filing a complaint.)
The Court will consider whether the typical 60-day window for serving a defendant applies to claims brought under the Oregon Tort Claims Act.
If the 60-day window does not apply, the Court will decide whether a person who brings a claim under the Act must both file and serve the complainant within two years or if filing within two years is sufficient to commence the claim.
For petitioner on review: Robert K. Udziela, a Beaverton attorney whose practice focuses on appellate litigation and trial support. He is on the faculty of Oregon Law Institute.
For respondent on review: Gerald L. Warren, a staff attorney with City County Insurance Services in Salem, which offers risk management legal services to Oregon local governments.