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IN THE COURT OF APPEALS OF THE STATE OF OREGON
PACIFIC Ill, LLC, an Oregon limitedliability company,Intervenor-Appellant,
v.
STATE OF OREGON, ex rel. DICKPEDERSEN, Director, Departmentof Environmental Quality,Plaintiffs-Respondents,
and
CRAIG E. BOWEN; PAMELA A.BOWEN; MICHAEL C. GIBBONS;PATRICK D. HUSKE and TAMARAL. HUSKE; IRONWOOD HOMES,INC.; LINKE ENTERPRISES OFOREGON, INC., fka FrontierLeather Company; DONALD W.NELSON; WELLSFARGO BANK, N.A. ; and JAMESM. WILSON,Defendants-Respondents.
Court of AppealsCase No. A151296
Washington County Circuit CourtCase No. C115183CV
APPELLANT’S MOTION TOVACATE ORDER GRANTINGMOTION TO EXPEDITE
Motion
Appellant (Pacific III) moves the court for an order vacating this
Court’s order of February 8, 2013 granting Respondent State of Oregon’s
(DEQ0 motion to expedite appeal. This motion is supported by the
discussion immediately below and the record on file. The undersigned has
conferred with Stephanie Striffler, counsel for DEQ. DEQ opposes this
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motion to vacate the order.
Discussion
A. Timing of Order Violated ORAP 7.05(3)
DEQ electronically filed its motion to vacate on February 6, 2013.
The order granting the motion was issued by Appellate Commissioner
James W. Nass on February 8, 2013. ORAP 7.05(3) provides, “(3) Any
party may, within 14 days after the filing of a motion, file a response.” The
premature issuance of the order deprived Pacific III of its right to file a
response within the time specified by ORAP 7.05. The order should be
vacated to give Pacific III an opportunity to respond.
B. Premature Order gave Appearance of Impropriety
Parties litigating against the government are particularly sensitive to
events which give the appearance of unduly favorable treatment of the
government by the courts. The premature issuance of the order granting
DEQ’s motion to expedite gave the appearance that DEQ was favored by
this Court. This impression was enhanced by the frustration of Pacific III’s
opportunity to object, seeming to indicate that Pacific III’s procedural rights
were of less importance that those of DEQ.
Pacific III acknowledges that the order granting DEQ’s motion to
expedite is not onerous. But that does not salve the perception created by
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the timing of the order.
The unfortunate timing of the order was exacerbated by the filing of
the motion to expedite two days before the due date for Pacific III’s reply
brief and the granting of the motion to expedite late in the day Pacific III’s
reply brief was due. This timing enhanced the perception that Pacific III’s
procedural rights were being given short shrift. Regardless of this writer’s
experience and knowledge that this Court has repeatedly ruled against
government agencies, the perception in the mind of parties and the public
should not be sullied by the issuance of an order without an opportunity for
the opposing party to respond under circumstances which, however
inadvertently, suggest a party is being jammed with the Court’s
cooperation.
A motion to preclude further briefing extensions filed two days before
the deadline for the final brief in the case was due, required that Pacific III
be afforded an opportunity to respond to the potentially onerous request
that no further extensions be granted.
C. Motion to Expedite Unsupported and Unjustified
This case has moved apace and does not require expedition. The
notice of appeal was filed April 26, 2012. Extensions have been minimal.
All briefing was completed on February 8, 2013, despite two substitutions
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of counsel for two parties and delays in settling the trial court record which
were no fault of any party.
DEQ’s repeated references to Pacific III as a “third party” and a “non-
party” are inappropriate. Pacific III is a party to this case. DEQ’s omission
of Pacific III, the only party who actually cleaned up the site, from the
settlement is the issue in this case.
The motion to expedite contained no declaration and no specific
citations to the record for most of the facts proffered to justify expediting
this case. It refers only to its own memorandum regarding the consent
judgment and the consent judgment itself.
There is not, and has never been, any rush on DEQ’s part to clean up
the site. DEQ has been aware of the contamination since well before it
entered into a prospective purchaser agreement with Pacific III in 2001(10-
11-11 Lucas Aff., Ex. A). In reality, Pacific III has finished cleaning up its
portion of the site, which is where the bulk of the contamination was (10-11-
11 Lucas Aff., ¶¶ 3, 6, 8, 10, Ex. A, p. 2, Ex. C). See also, Administrative
Record, No. 26 (No Further Action Determination Tax Lot 500, Former Frontier
Leather Site, Sherwood, Oregon, ECST #116), No. 28 (No Further Acton
Determination Lots 1 and 2, Tax Lot 400. Former Frontier Leather Site,
Sherwood, Oregon ECSI #1 16), and No. 34 (Conditional No Further Action
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Determination. Former Frontier Leather Site. Tax Lot 1100, 15104 SW Oregon
Street, Sherwood, Oregon, ECSI #116) (Confirming issuance of NFA’s for Tax
Lots 500,900, 1000 and 1100- i.e. the Western Half of the Tannery Site).
Pacific III’s cleaned-up portion of the site was where the tannery and
battery operations took place. It was on that portion of the site that the operations
resulted in significant contamination of the Tannery Site with hazardous
substances including trivalent chromium oxide, cadmium, copper, mercury,
chromium, cyanide, asbestos, oils, solvents and lead from lead-acid battery
manufacturing and from battery casings that had been piled on the site by prior
operators (ER 4-7; 10-11-11 Lucas Aff., Ex. A, p. 2-6; 03-20-12 Lucas
Aff., ¶ 5).
DEQ admitted that "[a]t the time the DEQ approved the Consent Judgment,
it was not aware of any need for further remediation on the Western [half of the]
Property" (DEQ Response to Interrogatory, p. 6:10-12). Pacific III incurred more
that $1,400,000 in cleanup costs (3-20-12 Lucas Aff., ¶¶ 5, 8, 9,10, 11, Ex. A).
There is no rush to start clean up on the far less contaminated portion
of the site that Pacific III did not own. DEQ offers no reason why a few
weeks of time saved by expediting this appeal at this late stage is
significant when it has not pressed urgently for any action since 2001.
Conclusion
The order dated February 8, 2013 granting DEQ’s motion to expedite
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should be vacated and Pacific III should be allowed to respond to the
motion.
DATED this 20th day of February, 2013.
Montgomery W. Cobb, llc
/s/ Montgomery W. Cobb Montgomery W. Cobb, OSB No. 831730
Of Attorneys for [email protected] 503-625-5888 voice503-625-1555 fax
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CERTIFICATE OF SERVICE
I certify that on February 20, 2013, I served a copy of Appellants’
Motion to Vacate Order Granting Motion to Expedite on:
Janet M Schroer, OSB# 813645Hart Wagner LLP1000 SW Broadway, Suite 2000Portland, OR [email protected] 503 222-4499Attorneys for Craig E. Bowen &Pamela Bowen
Stephen G. Leatham, OSB# 873820Heurlin Potter Jahn Leatham211 E. McLoughlin Blvd., 100PO Box 611Vancouver, WA [email protected] 360 750-7547Attorneys for Wells Fargo Bank andJames Wilson
Loren R. Dunn, OSB# 060350Riddell Williams PS1001 4th Ave. Plaza, Suite 4500Seattle, WA [email protected] 206 624-3600Attorneys for Linke Enterprises ofOregon, Inc. and Donald Nelson
Patrick G. Rowe, OSB# 072122Sussman Shank LLP1000 SW Broadway, Suite 1400Portland, OR [email protected] 503 227-1111Attorneys for Michael C. Gibbons
Thomas R. Benke, OSB # 922251Environmental Compliance7845 SW Capitol Hwy, Suite 8Portland, OR [email protected] 503 246-1514Attorney for Patrick D. Huske,Tamara L. Huske and IronwoodHomes, Inc.
Stephanie Striffler, OSB# 824053Anna Marie Joyce, OSB# 013112DOJ Attorney General's Office1162 Court St. NESalem, OR [email protected] Phone 503 378-4402Attorneys for State of Oregon andPederson
by filing it with the eFiling system as to attorneys Joyce, Striffler, Rowe,
Leatham, Dunn and Schroer, who are registered with the eFiling system;
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and upon Attorney Benke by emailing it to him at the email address shown
above.
Montgomery W. Cobb, llc
By: /s/ Montgomery W. Cobb Montgomery W. Cobb, OSB #83173Attorney for Appellants
