Making Legislative Hash

Next Tuesday, April 28, is the last day by rule for Senate committees to vote on bills introduced by Senators. The House of Representatives has adopted a similar rule for House measures. The effect of this deadline is a variety of last minute machinations to get policy bills into the legislative pipeline. The deadline for introduction of bills is long since passed. The result is that new ideas, or ideas that have not yet received a hearing, must be included in existing bills. Legislators and lobbyists are now attempting to include their ideas into those bills that are scheduled for a hearing in committee by next Tuesday. This is done by amending their ideas into an existing bill, or by stuffing an entire bill containing their ideas into an existing bill that is already scheduled for a hearing.

Each bill has a “relating to” clause that limits what the bill is allowed to address. For instance, a bill “relating to” fishing licenses can only contain amendments that create changes in statute directly associated with fishing licenses. A bill that relates to fishing licenses in a different way may be stuffed into the original bill. In the alternative, an existing bill that is scheduled for a hearing may be amended by replacing the original bill with a different bill that relates to fishing licenses. In legislative terminology this process is called “gutting and stuffing” a bill. 

This process is a roadmap for creating bad legislation. Too often amendments appear at the beginning of a committee meeting that significantly change, or even totally replace, the bill scheduled to receive a vote. Committee members are expected to vote on these amendments without adequate time to even read, much less study, the changes being proposed. Moreover, the public and their lobby representatives are often not apprised of the changes and have little or no opportunity to express support or opposition to the changes prior to a committee vote.

The point is that each bill should be closely read before each committee meeting to determine what changes may have been included since the last time the bill was read. Unfortunately, the current committee rules have resulted in the opposite effect. At the start of each committee meeting, legislators must rapidly scan through proposed amendments to determine what last minute changes the majority party may wish to make in the bill. For instance, Friday morning a bill scheduled in the Senate Judiciary Committee had previously unseen amendments offered that “gutted and stuffed” the original bill with seven different but related concepts. To his credit, the committee chair held this bill over for discussion until Monday’s committee meeting to allow adequate time for evaluation of the amendments.

The Plaintiff’s Fairness Act

It is common in the context of environmental law to encourage citizens to act as private attorney generals. These policies tend to create litigation “open season” on Oregon businesses that create jobs and provide food, fiber and building products. Many non-government organizations (NGOs) and law school environmental clinics have developed these private attorney general policies into an art form of virtual extortion from private natural resources businesses. The process used by the NGOs is to search for any action on the part of a natural resource user that could be construed as contrary to existing law. They particularly look for actions alleged to have been performed by a small or mid-sized natural resources business that likely does not maintain full time legal counsel. The NGO or clinic then finds a person who will consent to filing a lawsuit on their behalf. After the lawsuit is filed, the NGO or law clinic threatens to ask the court to be reimbursed by the defendant for huge sums of money that the NGO has allegedly spent on attorney fees, costs, and research. They provide the defendant with the alternative of settling out of court by abstaining from the alleged illegal practice, and of course, by paying all attorney fees and costs incurred by the plaintiff to date.

Current law provides the state authority to bring a suit to enjoin an alleged illegal fill and removal practice that causes a public nuisance (ORS 196.855). Further provisions provide that any person may bring a similar suit after 60 days notice to the director of the Department of State Lands unless the Department has already started an action (ORS 196.870). Current law fairly entitles both the prevailing plaintiff and the prevailing defendant to recover attorney fees and costs from the other party. It also provides that the court may require a bond to be provided by a party prior to the court enjoining the action. The purpose of the bond would be to protect the defendant against losses while being enjoined from working during an unsuccessful plaintiff suit. The Senate Judiciary Committee held a hearing on a bill last Friday that would dramatically change those provisions o f law.

Senate Bill 877 proposes to change existing law to provide that the prevailing plaintiff is entitled to recover attorney fees and costs while the prevailing defendant is not entitled to recover attorney fees and costs. Moreover, it creates citizen standing to initiate a suit to enjoin alleged fill and removal violations by a natural resource user without provisions to establish a bond. The bill, introduced by Senator Jackie Dingfelder (D-Portland), is being promoted by its environmental advocates as a “fairness to plaintiffs” act.

The major safeguard that minimizes this form of “legalized extortion” is the risk of the plaintiff being held liable to pay the defendants attorney fees and costs. Other plaintiff concerns include that the court may require a bond from the plaintiff prior to enjoining the action, the need to find a person who is offended to file the suit, and the requirement to notify the Department 60 days prior to initiating a court action. SB 877 essentially eliminates all of those safeguards by authorizing any person to bring suit to enjoin an action without providing a bond, and by eliminating the ability of the defendant to recover their attorney fees and costs.

SB 877 would have the destructive effect of removing virtually all disincentives to initiating frivolous litigation. Moreover, it would provide for potential bountiful recovery of attorney fees and costs. Isn’t this kind of legislation a primary cause of Oregon’s national leadership in unemployment, poverty and hunger? Why would any natural resource based industry want to either establish or maintain a business in this state while facing a stacked deck on environmental law?

Oregon’s First Tax on Water

Municipal water users pay a monthly fee to have pressurized water delivered to their home. Irrigators located in irrigation districts pay the district to deliver water to their property. All of these fees and charges are for the delivery of water rather than for its use. Other fees charged by the Oregon Water Resources Department (OWRD) are for specific purposes such as recording a water right, transferring the place of use of a water right, or changing the type of use allowed in a water right.

Senate Bill 740 creates a tax on water use. It provides for the OWRD to collect an annual $100 charge from the holder of each surface water or ground water right permit, certificate or limited license. In stream water rights are exempt from the tax. It provides OWRD authority to cancel or revoke any water right permit, certificate, or limited license for failure to pay the water tax. The bill provides that the tax money will be placed in a newly established Water Resources Department Water Right Operating Fund to provide for the payment of the program and administrative expenses of the Water Resources Commission and the Water Resources Department.

Legislative Counsel has opined that SB 740 creates a fee because the money derived is to be used only to operate the newly created Water Right Operating Fund. Using similar logic we could conclude that the gas tax is actually only a fee. The importance of the distinction is that a fee can be passed by a simple majority of both legislative chambers while a tax requires a three fifths majority vote. In my opinion, not withstanding legislative machinations, if it sounds like a tax on water, and if it looks like a tax on water, it most likely is a tax on the use of water.

SB 740 passed out of the Senate Committee on the Environment and Natural Resources chaired by Senator Dingfelder last Thursday on a party line vote. It has been referred to the Ways and Means subcommittee on Natural Resources for further consideration. That subcommittee is co-chaired by Senator Vicki Walker (D-Eugene) and Representative Bob Jenson (R-Pendleton). Do not hesitate to contact either of the Co-Chairs because both are thoughtful legislators who will listen to your concerns. Remember, if we don’t stand up for rural Oregon, no one will!

Senator Vicki Walker
(503) 986-1707
sen.vickiwalker@state.or.us

Representative Bob Jenson
(503) 986-1458
rep.bobjenson@state.or.us