Larsen v. Oregon Department of Fish & Wildlife

736 P.2d 227, 85 Or. App. 406

• Court: Court of Appeals of Oregon
• Decided: May 6, 1987
• Docket: CA A39283
• Status: Published

Opinion

PER CURIAM

Petitioners challenge the promulgation by the Director of the Department of Fish and Wildlife of a temporary rule repealing OAR 635-42-140 and thereby eliminating the Columbia River commercial sturgeon setline season. ORS 183.400. We grant respondents’ motion to dismiss.

Former OAR 635-42-140 provided,¹ in pertinent part:

“Sturgeon may be taken by setline for commercial purposes from noon April 1 to Noon April 30 in the Columbia River * *

The challenged rule repealed OAR 635-42-140. It became effective on January 28,1986. A temporary rule adopted under ORS 183.335(5), as this one was, “maybe effective for a period of not longer than 180 days.” ORS 183.335(6)(a). Respondents contend that petitioners’ challenge is moot, because the temporary rule lapsed in July, 1986, by operation of law. Petitioners contend that we should nevertheless address the controversy, because it is “capable of repetition, yet evading review” and involves a matter of public importance. Assuming that we have authority to decide moot questions, see Hay v. Dept. of Transportation, 301 Or 129, 134, 719 P2d 860 (1986), we decline to do that in this case. See Hay v. Dept. of Transportation, supra; McKnight v. LCDC, 69 Or App 642, 687 P2d 170 (1984), rev den 299 Or 522 (1985).

Rule challenge dismissed as moot.

1 OAR 635-42-140 was later suspended by another temporary rule which became effective on December 22,1986, and was permanently repealed as of January 23,1987. Those actions are not before us in this case.