Following the submission of Petitions for Review to the Supreme Court by the Oregon Dept. of Aviation and the Intervenors (commercial interests at the airport), we (the original appellants in the Court of Appeals appeal) have the opportunity to submit our own response briefs. Those briefs have been filed by Joseph Schaefer, City of Wilsonville, One Thousand Friends and Friends of French Prairie arguing why the Supreme Court should not review the Court of Appeals ruling.
To provide a sense of the legal arguments as well as the frustration that citizens should be feeling about this ten-year long saga, below is Introductory section of the 1000 Friends/Friends of French Prairie brief, written by Andrew Mulkey. It is a superb summary of the situation and argument against review:
Petitioners on Review Oregon Aviation Board and Oregon Department of Aviation’s arguments for review are myopic.
Their arguments are based on an overly narrow, incomplete, and incorrect presentation of the facts and law. The Petition contains numerous errors, some of them consequential. Ultimately, the agencies seek review for the underwhelming reason that the law is not what they thought it was. This Court should not be swayed.
Petitioners’ newfound interest in legal certainty is particularly galling, considering the amount of uncertainty the agencies have created in their shambolic attempts to shield their airport master plan from judicial review. In reality, the agencies’ concept of what the law is or how it applied has been in apparent flux since it initiated the challenged proceedings over 10 years ago. At various points, the agencies have explained the process for adopting an airport master plan and findings, told the public they intended to comply by issuing a final decision, asked the public to participate in its proceedings, and then changed course, sometimes at the last minute. Described in more detail below, the latest about-face occurred just weeks before the challenged decision in this case.
Respondents on Review 1000 Friends of Oregon and Friends of French Prairie use the inaccuracies in the Petition as a framework to explain why this Court should decline review. In their attempts to adopt an airport master plan for the Aurora State Airport, the agencies have wasted an inordinate amount of their own time and resources as well as the public’s time and resources. The agencies have done so in the service of a handful of businesses that cater to elite clientele who use private jets to travel halfway around the world. The irony is that the proposed runway extension in this case is not even necessary for that service. The businesses have been operating successfully since the agencies first proposed the option more than 10 years ago. It has been so long in fact, that the FAA’s funding rules require the agencies to complete a new master plan. Even if they wanted to, Petitioners can no longer rely on the version airport master plan at issue in this case to obtain FAA funding for their proposed runway extension.
The agencies’ request to overturn Schaefer v. Oregon Aviation Board is simply the latest in a long line of misguided attempts to avoid judicial review. 312 Or App 316 (2021) modified 313 Or App 725 (2021). The agencies would rather point out inconsistencies in the language of two provisions of their own regulations than engage in a good faith attempt to comply with the underlying statute. ORS 197.180(1) (requiring that agency actions comply with the statewide land use planning goals and be consistent with comprehensive plans). As a result, Petitioners’ proposed rule of law would undermine the purpose of ORS 197.180(1) and undermine the integrity of Oregon’s land use planning laws.
Respondents respectfully request that this Court decline the agencies’ latest, and hopefully last, invitation to waste the public’s time and money on this effort. The decision in Schaefer ensures that the agencies’ newly initiated proceedings to adopt a new airport master plan will result in a timely final decision and findings. The Court of Appeals’ decision will also ensure that the agency’s actions comply with ORS 197.180(1).
No more needs to be said, unless you’re interested in reading the legal arguments against the two legal subjects argued by the Intervenors in their petitions. If so, you can download the entire brief in PDF here.
The typical time frame for the Supreme Court to make the decide on review is four to five months, so a decision is unlikely before April of 2022.