Warrenton Fiber Co. v. Department of Energy

388 P.3d 372, 283 Or. App. 270, 2016 Ore. App. LEXIS 1624
CourtCourt of Appeals of Oregon
DecidedDecember 29, 2016
Docket122419; A155371
StatusPublished
Cited by2 cases

This text of 388 P.3d 372 (Warrenton Fiber Co. v. Department of Energy) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Warrenton Fiber Co. v. Department of Energy, 388 P.3d 372, 283 Or. App. 270, 2016 Ore. App. LEXIS 1624 (Or. Ct. App. 2016).

Opinion

FLYNN, J.

This case arises out of a decision by the Oregon Department of Energy (ODOE)’s decision that Warrenton Fiber is not eligible for a biomass tax credit for tree bark that it stripped from pulp logs at its mill and then sold as “hog fuel.”1 Warrenton sought review of that decision in the circuit court, which concluded that ODOE relied on an invalid rule in rejecting Warrenton’s application for a tax credit certification. ODOE challenges that determination, contending that it had authority to enact the challenged rule, which excluded from the definition of biomass “[sjawdust or other residual wood waste from mill operations.” OAR 330-170-0040(l)(c) (Nov 2, 2010).2 We conclude that the rule is valid and, thus, reverse and remand the trial court’s grant of summary judgment to Warrenton and denial of summary judgment to ODOE. In light of that conclusion, we dismiss as moot Warrenton’s cross-appeal, which assigns error to the denial of Warrenton’s petition for attorney fees under ORS 183.497(1)—a provision that applies only “if the court finds in favor of the petitioner.”

I. BACKGROUND

We begin by explaining the statutory context out of which the parties’ dispute arises. Under Oregon’s biomass tax credit program, an “agricultural producer” or “biomass collector” is allowed a tax credit for the “production” or “collection” of “biomass in Oregon that is used, in Oregon, as biofuel or to produce biofuel.” ORS 315.141(3)(a). The legislature has charged the ODOE with the task of establishing procedures and criteria for determining the amount of the credit, and with providing “written certification to taxpayers that are eligible to claim the credit[.j” ORS 315.141(5)(a). As pertinent to this appeal, the legislature has defined “biomass,” as

[273]*273“organic matter that is available on a renewable or recurring basis and that is derived from:
“(A) Forest or rangeland woody debris from harvesting or thinning conducted to improve forest or rangeland ecological health and reduce uncharacteristic stand replacing wildfire risk[.]”

ORS 315.141(1)(d). At the time that Warrenton sought the disputed certification, OAR 330-170-0040(1) provided, as pertinent:

“For the purposes of these rules biomass does not include:
«* * * * ⅜
“(c) Sawdust or other residual wood waste from mill operations [.] ”

Warrenton purchased pulp logs, which it hauled to its facility, stripped off the bark, and turned the remaining portion of logs into wood chips. Warrenton sold some of the stripped bark as “hog fuel” and sought a biomass tax credit certification from ODOE for $97,690.70 against the taxes due for its sale of the hog fuel. ODOE denied the application on the basis of OAR 330-170-0040(l)(c). Warrenton sought review in the circuit court pursuant to ORS 183.484, which provides for judicial review of an order in other than a contested case. Warrenton alleged that ODOE improperly denied the application because OAR 330-170-0040(l)(c), was invalid or, alternatively, because ODOE misinterpreted the rule when it applied it to Warrenton’s application. The parties filed cross motions for summary judgment, and the trial court agreed with Warrenton’s claim that the rule is invalid.3 As to that claim, the court granted Warrenton’s motion for summary judgment and denied ODOE’s motion. The court remanded to ODOE for a determination of whether Warrenton’s application met the other requirements for the biomass tax credit. On appeal, ODOE assigns error both to the denial of its motion for summary judgment and to the granting of Warrenton’s motion on the claim that the rule is invalid.

[274]*274II. DISCUSSION

In reviewing an agency order, the court is authorized by ORS 183.400(4) to declare the rule invalid only if the court determines that the rule “violates constitutional provisions, exceeds the statutory authority of the agency that adopted the rule, or was adopted without complying with rulemaking procedures.” Assn. of Acupuncture v. Bd. of Chiropractic Examiners, 260 Or App 676, 678, 320 P3d 575 (2014). Here, Warrenton does not contend that the rule is unconstitutional or that ODOE adopted the rule without complying with rulemaking procedures, so we consider whether the rule exceeds ODOE’s statutory authority. In this context, our review of the rule’s validity is limited to “the wording of the rule itself (read in context) and the statutory provisions authorizing the rule.” Wolf v. Oregon Lottery Commission, 344 Or 345, 355, 182 P3d 180 (2008).

There is no dispute that ODOE is generally authorized to “[a]dopt rules and issue orders to carry out the duties of the director and the State Department of Energy,” and those duties specifically include certifying biomass tax credits. ORS 469.040(l)(d); see also ORS 315.141 (designating ODOE responsibility for biomass tax credits and certification). Warrenton argues, however, and the trial court agreed, that the rule exceeds ODOE’s authority because it excludes from the definition of “biomass” material to which the legislature intended to extend the tax credit. We disagree.4

The parties’ dispute primarily turns on whether the rule is consistent with ORS 315.141(l)(d)(A), which—as quoted above—defines “biomass” to include:

“organic matter that i's available on a renewable or recurring basis and that is derived from:
“(A) Forest or rangeland woody debris from harvesting or thinning conducted to improve forest or rangeland [275]*275ecological health and reduce uncharacteristic stand replacing wildfire risk[.]”5

As construed by ODOE, that definition is consistent with OAR 330-170-0040(l)(c) because the statute identifies woody debris biomass according to the direct source of the debris, and “residual wood waste from mill operations” describes a different source than “ [f] orest or rangeland woody debris from harvesting or thinning.” Warrenton urges us to construe the statutory definition as reaching woody residue created from mill operations if the trees used in those mill operations originally came “from harvesting or thinning conducted to improve forest or rangeland ecological health and reduce uncharacteristic stand replacing wildfire risk.”

A. Standard of Review—Exact, Inexact and Delegative Terms

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Related

State v. Gardner-Rolph
345 Or. App. 681 (Court of Appeals of Oregon, 2025)

Cite This Page — Counsel Stack

Bluebook (online)
388 P.3d 372, 283 Or. App. 270, 2016 Ore. App. LEXIS 1624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/warrenton-fiber-co-v-department-of-energy-orctapp-2016.