author: ORTEGA, P. J.

text:
    STATE of Oregon, Plaintiff-Respondent, v. Kayla Renee SARMENTO, Defendant-Appellant.
    A160875 (Control), A160876
    Court of Appeals of Oregon.
    Argued and submitted November 21, 2017. March 27, 2019
    Mary M. Reese, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

      Egan, C. J., vice Garrett, J. pro tempore.

   ORTEGA, P. J.

In this consolidated appeal, defendant challenges her convictions for unlawful possession of heroin, ORS 475.854, and unlawful possession of methamphetamine, ORS 475.894. In case number 14CR15300, defendant asserts that the trial court erred in denying her motion to suppress evidence obtained during a traffic stop that she contends was unlawfully extended because the "officer-safety" exception to the warrant requirement did not justify the officer's actions. We conclude that the trial court erred in denying defendant's motion and, accordingly, reverse and remand.

We review the denial of a motion to suppress for legal error and are bound by the trial court's explicit and implicit factual findings if evidence in the record supports them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). Accordingly, we state the facts consistently with the trial court's factual findings.

Around 8:00 p.m., while patrolling an area of Medford known to have "a lot of drug and criminal activity," Officer Oller noticed two people in a parked car in an "alleyway" with a "building on one side" and an "empty lot" on the other. Defendant was in the driver's seat, and a man was in the passenger seat. The car did not have a front license plate, a traffic violation under ORS 803.540. State v. Blueback , 291 Or. App. 779, 784, 422 P.3d 385 (2018). Oller initiated a traffic stop by pulling in front of the car so that his car faced the parked car. He got out of his car and, as he approached, saw both defendant and the passenger "hiding or concealing or obtaining *** items around their waist, around the areas [he] couldn't see within the vehicle," which Oller characterized as "furtive movements." Oller knew that weapons are commonly hidden and concealed around the waist. He ordered them to "stop moving" and keep their hands where he could see them, and they complied. He then called for a cover officer because he was concerned for his safety and "wanted another set of eyes." They both appeared nervous, and Oller saw "fresh track marks" or needle marks on defendant's arms. Oller asked for their names but did not take any steps to process the citation for the traffic violation while waiting for the cover officer. During that time, Oller waited at the side of the car, and the "passenger kept moving towards his waist line." Defendant also dropped something "like a candy box" on the floor and shuffled something around with her feet. Oller testified that he did not believe that the candy box was a weapon. Rather, the candy box was as small as a credit card or as big as a "movie box" and could have had a number of things in it, including a weapon. Oller again told them to stop moving.

Once Officer Dennis arrived, about two and a half minutes later, Oller briefed Dennis and told him to watch the passenger while Oller approached defendant because "there might be weapons present." Oller then approached defendant and asked her, "Hey, do you mind moving your right foot?" She moved her right foot but "moved her left foot over" to where her right foot had previously been. Oller then asked, "Hey, will you move your left foot?" When defendant moved her left foot, Oller saw a syringe filled with a substance that Oller believed to be heroin. Defendant was arrested for possession of heroin and later made incriminating statements.

At the hearing on defendant's motion to suppress the evidence obtained during the stop, Oller testified that he had about 11 years of law enforcement experience in Oregon and Arizona, including "advanced training in narcotics" and experience training other officers. He testified that he waited for Dennis to begin the traffic investigation because he "had officer safety issues" that had to be dealt with first-that is, being in a high crime area, outnumbered, alone, and witnessing the occupants make movements towards their waistlines where weapons are commonly kept. He also explained that police contacts with people in cars are some of the "more dangerous" encounters because of the number of areas in which things can be concealed. He further testified that by the time Dennis arrived, he believed there was a "strong possibility" that there were weapons in the car. On cross-examination, when asked how he addressed his safety concerns, Oller responded that he did so by asking defendant to move her feet because he "believed that she was hiding something with her foot."

Defendant argued that Oller unlawfully extended the traffic stop without reasonable suspicion of criminal activity and that the extension was not justified by the officer-safety exception to the warrant requirement. The state responded that Oller's actions were justified by reasonable suspicion of a crime and officer-safety concerns and that the two issues are "intertwined together." The court denied the motion without making any express factual findings, and defendant entered a conditional plea of guilty.

On appeal, the parties generally renew the arguments they made below. Defendant argues that Oller's actions were not reasonably related to the basis for the traffic stop and were unlawful because they were not justified by the officer-safety exception to the warrant requirement as articulated in State v. Bates , 304 Or. 519, 524, 747 P.2d 991 (1987). The state counters that Oller's actions were reasonably related to the traffic investigation and were therefore lawful under State v. Jimenez , 357 Or. 417, 426, 353 P.3d 1227 (2015). Alternatively, the state argues that Oller's actions were justified because he had reasonable suspicion that defendant possessed a controlled substance.

Defendant conceded below that the initial stop was lawful, so we focus on whether Oller unlawfully extended the stop. Because the parties disagree on what standard we should apply to answer that question, we begin by outlining the law governing traffic stops and officer safety concerns.

With probable cause, an officer may "lawfully stop a person for a noncriminal traffic violation to investigate the offense and issue a citation without a warrant." State v. O'Dell , 291 Or. App. 359, 362, 421 P.3d 417 (2018) (citing State v. Rodgers/Kirkeby , 347 Or. 610, 623-24, 227 P.3d 695 (2010) ). During a lawful stop, an officer's authority is limited to "the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any)." Rodgers/Kirkeby , 347 Or. at 623, 227 P.3d 695. Officer conduct that is not reasonably related to the basis for the stop "must be justified on some basis other than the traffic violation." Id. (emphasis omitted).

An officer may conduct a warrantless, nonconsensual search of an individual if he or she "develops a reasonable suspicion, based upon specific and articulable facts, that [the individual] might pose an immediate threat of serious physical injury to the officer or to others then present." Bates , 304 Or. at 524, 747 P.2d 991. The officer must have a subjective belief that the defendant posed a threat and that belief must be objectively reasonable. State v. Rodriguez-Perez , 262 Or. App. 206, 213, 325 P.3d 39 (2014). To be objectively reasonable, "the officer's safety concerns must be based on facts specific to the particular person searched, not on intuition or a generalized fear that the person may pose a threat to the officer's safety." Id.

Short of a nonconsensual search, an officer may resolve "cognizable safety concerns" with less intrusive actions that are reasonably related to the safe investigation of a traffic violation. Jimenez , 357 Or. at 424, 426, 353 P.3d 1227 ("[I]n appropriate circumstances, an officer's safety concerns may make the officer's actions, including questioning about weapons, reasonably related and necessary to effectuate a traffic stop."); see also State v. Miller , 363 Or. 374, 422 P.3d 240, modified and adh'd to on recons. , 363 Or. 742, 428 P.3d 899 (2018) (further articulating Jimenez standard when an officer makes a weapons inquiry); State v. Pichardo , 360 Or. 754, 759-60, 388 P.3d 320 (2017) (applying Jimenez standard to officer's request for consent to search); State v. Watson , 353 Or. 768, 782, 305 P.3d 94 (2013) ("[V]erification of a person's identity and the issuance of a citation are not the only activities that may be reasonably related to the investigation."). To demonstrate that an officer's less intrusive measures are "reasonably related to a traffic investigation and reasonably necessary to effectuate it, the state must present evidence that (1) the officer perceived a circumstance-specific danger and decided that [the action taken] was necessary to address that danger; and (2) the officer's perception and decision were objectively reasonable." Jimenez , 357 Or. at 430, 353 P.3d 1227. In order for an officer's perception of a threat to be reasonable, the officer must be able to articulate "reasonable, circumstance-specific concerns" for safety, but those "concerns need not arise from facts particular to the detained individual; they can arise from the totality of the circumstances that the officer faces." Id. at 429, 353 P.3d 1227.

Defendant urges us to evaluate Oller's conduct by the standard set forth in Bates , 304 Or. at 524, 747 P.2d 991 (requiring "reasonable suspicion, based upon specific and articulable facts, that [an individual] might pose an immediate threat of serious physical injury to the officer or to others then present"). However, "the strictures of the Bates test apply only to unilateral police conduct (e.g. , conducting an unconsented frisk) in response to perceived officer safety concerns." State v. Toll , 295 Or. App. 277, 285, 432 P.3d 1131 (2018) ; see also Jimenez , 357 Or. at 434, 353 P.3d 1227 (Kistler, J., concurring) ("A question is not a search. To require the same justification for both *** fails to recognize the difference."). At no point in the stop did Oller conduct a nonconsensual search of defendant; rather, he briefly waited for a cover officer to arrive and then requested and obtained consent to search by asking defendant to move her feet. Because Oller did not conduct a warrantless, unconsented search, Jimenez provides the appropriate legal framework.

Because we assume, without deciding, that waiting for the cover officer was objectively reasonable under the totality of the circumstances, we examine only Oller's decision to ask defendant to move her feet. Because defendant does not contest that Oller subjectively perceived a risk to his safety or that he subjectively decided that asking defendant to move her feet was necessary to address that risk, the question reduces to whether Oller's testimony substantiated an objectively reasonable perception of danger and consequent justification for asking defendant to move her feet before conducting the traffic investigation.

To be objectively reasonable, the officer's actions must be reasonably related to the perceived danger.

Toll , 295 Or. App. at 293, 432 P.3d 1131. As in other similar cases, we focus on Oller's testimony to evaluate the reasonableness of his concerns and the actions he took to address them. See id. at 289, 432 P.3d 1131 ; see also Miller , 363 Or. at 385-88, 422 P.3d 240 (evaluating officer testimony). Oller testified to circumstance-specific reasons for his safety concerns. He watched defendant and her passenger making movements around their waistlines, where he could not see and where he knew that weapons are commonly kept. Oller also testified to more generalized safety concerns: In his training and experience, traffic stops pose more dangers to officers than do other types of police encounters because of the number of areas where weapons can be concealed. See generally Jimenez , 357 Or. at 428-31, 353 P.3d 1227 (generalized safety concerns present in routine police-citizen encounters do not support weapons inquiries). We focus on the officer-safety justification for Oller's request that defendant move her feet.

Although defendant disobeyed Oller's order to stop moving, by dropping the box and shuffling it with her feet, Oller testified that he did not believe the box was a weapon. He believed only that she was trying to hide something. Here, as in the Bates context, defendant's apparent attempt to hide something does not support an inference that she presented a safety concern. State v. Jimenez , 263 Or. App. 150, 160, 326 P.3d 1222 (2014), aff'd , 357 Or. 417, 353 P.3d 1227 (2015) ("Even if defendant's departure from the scene when he saw [the officer] approaching could be seen as an indication that defendant 'had something to hide'-a dubious inference at best-that fact would not provide support for the inference that defendant presented an immediate danger or threat to [officer] safety."); see also State v. Lavender , 93 Or. App. 361, 364, 762 P.2d 1027 (1988) ("The assertion of a constitutionally protected right against warrantless searches cannot be a basis for such a search."). Therefore, we conclude that the state failed to meet its burden of showing that Oller had an objectively reasonable perception of danger.

The state next argues that, even if Oller's requests were not reasonably related to the traffic investigation, they were justified because he had reasonable suspicion that defendant possessed a controlled substance. "Reasonable suspicion sufficient to support an investigatory detention exists when an officer subjectively believes that a person has committed or is about to commit a crime and that belief is objectively reasonable in light of the totality of the circumstances existing at the time of the stop." State v. Oller , 277 Or. App. 529, 534, 371 P.3d 1268 (2016).

We do not understand defendant to contend that Oller did not subjectively believe that defendant committed a crime. Thus, we determine whether that subjective belief was objectively reasonable. "To be objectively reasonable, the officer's suspicion must be based on specific and articulable facts." Id. The state argues that Oller's belief was objectively reasonable based on the following facts: he observed "fresh track marks" on defendant's arms, she was in a high crime area, and the two passengers were nervous and made "furtive movements." We conclude that those facts, individually or in combination, do not support an objectively reasonable suspicion of possession of a controlled substance. See State v. Davis , 286 Or. App. 528, 535, 400 P.3d 994 (2017) ("[N]ervousness during a traffic stop contributes little, if any, weight toward reasonable suspicion that the driver is engaged in criminal activity."); Oller , 277 Or. App. at 538, 371 P.3d 1268 ("[E]vidence of a person's past or even routine drug use, without additional evidence, does not give rise to the reasonable inference that the person currently possesses drugs."); State v. Bertsch , 251 Or. App. 128, 134, 284 P.3d 502 (2012) ("[A] person's presence in a location associated with drug activity is insufficient to support an objectively reasonable belief that the person is * * * engaged in drug activity."); State v. Berry , 232 Or. App. 612, 617-18, 222 P.3d 758 (2009), rev. dismissed , 348 Or. 71, 228 P.3d 582 (2010) (defendant's transparently false explanation for turning into a particular parking lot, nervousness, furtive movements, and prior presence at a known location for drug trafficking do not give rise to reasonable suspicion of drug possession).

For the foregoing reasons, we conclude that Oller extended the stop in violation of Article I, section 9, of the Oregon Constitution.

Judgment in Case No. 14CR15300 reversed and remanded; judgment in Case No. 14CR24518 affirmed.

      In case number 14CR24518, defendant asserts that the trial court erred by denying her motion to suppress evidence, contending that the officer did not have statutory authority to stop her based on reasonable suspicion that she violated a condition of her probation. We reject that assignment of error. State v. Hiner , 240 Or. App. 175, 180, 246 P.3d 35 (2010) ("The authority to arrest a probationer for a violation of a probation condition implies the authority to stop persons reasonably suspected of violating that probation condition.").

      Defendant characterizes Oller's statements "Hey, do you mind moving your right foot" and "Hey, will you move your left foot" both as orders and as requests to search. No matter how the statements are labeled, we understand defendant to be arguing that they unlawfully extended the stop because they were unrelated to the basis for the stop. Because we do not understand defendant to argue that her consent was not voluntary, we do not discuss that issue here.


source: Caselaw Access Project

author: SHORR, J.

license: Public Domain

text:
    CHILDERS MEAT CO., INC., an Oregon corporation; Co-Motion Cycles, Inc., an Oregon corporation; Mid Valley Metals, LLC, a limited liability company; Gibson Steel Fabricating, Inc., an Oregon corporation; Gibson Steel Basins, Inc., an Oregon corporation; and Skopil's Cleaners, Inc., an Oregon corporation, Plaintiffs-Appellants, v. CITY OF EUGENE, an Oregon municipal corporation, Defendant-Respondent.
    A163402
    Court of Appeals of Oregon.
    Argued and submitted December 11, 2017. March 20, 2019
    William H. Sherlock, Eugene, argued the cause for appellants. Also on the briefs was Hutchinson Cox.
    Lauren Sommers argued the cause and filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   SHORR, J.

Plaintiffs, a group of businesses located within the City of Eugene (city), appeal a judgment of the trial court declaring that Eugene's "hazardous substance user fee," which was enacted by the city council in 2001 as part of the Eugene City Code (Eugene Code), is valid. Plaintiffs also challenge the validity of hazardous substance reporting requirements-part of a Toxics Right-to-Know program-enacted as an amendment to the city charter by the city's voters. We conclude that the trial court did not err when it entered a judgment declaring that the city's imposition of the hazardous substance user fee on plaintiffs does not violate ORS 453.402(6), section 2.1 and section 3.F of Amendment IV of the Eugene City Charter (Eugene Charter), or ORS 453.370(9). We also conclude that plaintiffs lack standing to challenge various exemptions to the reporting program found in Amendment IV of the Eugene Charter. Accordingly, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case has a long and complex procedural background that involves amendments to the Eugene Charter, the city's constitutional document, by initiative and subsequent amendments to the Eugene Code. In 1996, the city's voters enacted Amendment IV (the initiative) to the Eugene Charter. The initiative created a "Toxics Right-to-Know" program, formed a City Toxics Board, and mandated that all "hazardous substance users" comply with annual reporting requirements. Under the initiative, a "hazardous substance user" is defined as an owner or operator of a commercial or public facility in the city with 10 or more full-time equivalent employees (FTEs) and an annual input of more than 2,640 pounds of hazardous substance. Eugene Charter § 54(3)(F). Under article VII of the initiative, those users were required to pay an annual fee to fund the reporting program, which was to be "self-supporting" and "funded wholly by hazardous substance user fees." Id. § 54(7)(B), (D). The initiative also contains a broadly worded severability clause, which provides:

"If any section, subsection, paragraph, phrase, or word (hereafter the parts) of this Section shall be held unconstitutional, void, or illegal, either on its face or as applied, this shall not affect the applicability, constitutionality, or legality of any other parts hereof; and to that end, the parts of the Section are intended to be severable. It is hereby declared to be the intent of this Section that the same would have been adopted had such unlawful or unconstitutional provisions, if any, not been included herein."

Id. § 54(11).

In 1999, a group of businesses in the city challenged the validity of the initiative. Those entities argued, in part, that section VII(A) of the fee provision-which only imposed fees on "hazardous substance users" as defined by the initiative-was barred by ORS 453.402(6), under which

"[l]ocal government assessments of hazardous substance fees based on quantity * * * shall be used solely to supplement and not to duplicate the State Fire Marshal's programs under ORS 453.307 and 453.414 and shall be billed and collected only through contract with the State Fire Marshal."

Ultimately, we agreed with the businesses and held that the fee provision was invalid because it imposed a quantity-based fee-in that the fee was only imposed on entities that used more than 2,640 pounds of hazardous substance and met other criteria-and was not used solely to supplement the State Fire Marshal's programs. Advocates for Effective Regulation v. City of Eugene , 160 Or. App. 292, 303-05, 981 P.2d 368 (1999) ( Advocates I ).

On remand, the trial court severed section VII(A) of the fee provision from the initiative pursuant to the initiative's severability clause. The court held that the initiative was invalid "insofar as it requires fees to be paid only by businesses that have inputs of more than a specified quantity of hazardous substances." As a result of the court's ruling, the reporting program remained part of the initiative and all "hazardous substance users" as defined therein were still subject to the reporting requirements, but the reporting program lacked a specific funding mechanism.

Plaintiffs appealed once more, arguing that the trial court erred in severing the fee provision rather than invalidating the initiative in its entirety. Plaintiffs argued that "the voters clearly intended the Initiative to be funded by means of a quantity-based fee," which meant that the right-to-know program could not survive without such a funding mechanism. Advocates for Effective Regulation v. City of Eugene , 176 Or. App. 370, 376, 32 P.3d 228 (2001) ( Advocates II ). We affirmed the court's decision after concluding that the invalid quantity-based fee provision was severable from the initiative. Id. at 377, 32 P.3d 228. We first acknowledged that the voters adopted the initiative with the understanding that the reporting program would be funded by a quantity-based fee. But, we explained, "the raison d'etre of the initiative is the establishment of a local system of public reporting of the use of hazardous substances because exposure to those substances poses a threat to human health and the environment." Id. at 377-78, 32 P.3d 228. We determined that "public information, not a particular funding mechanism, is the overriding concern of the initiative." Id. at 378, 32 P.3d 228. We therefore presumed that "the voters would have desired severing in a manner that does the least damage to that overriding concern" and concluded that "[i]nvalidating substantive reporting requirements constitutes a far greater interference with that purpose than does removing an offending limitation on the source of funding for it." Id . Based on our decision, the right-to-know reporting program established by the initiative remained in effect, but the initiative itself did not contain a specific funding mechanism for the program.

Between our decisions in Advocates I and Advocates II , the city enacted a "hazardous substance user fee" as part of the city code. Eugene Code 3.690 - 3.696 (the fee provision). The city adopted the new fee provision to provide "procedures for payment by certain businesses that use hazardous substances of the hazardous substance user fees * * * in a manner consistent with article VII of amendment IV of the Eugene Charter of 2002 (the amendment), taking into consideration the mandate of the courts in the litigation involving the amendment." Id . at 3.690.

Although the city enacted the fee provision to fund the initiative, the fee provision defines covered "hazardous substance users" and "facilities" differently from the initiative. As noted above, the initiative defines a "hazardous substance user," i.e. , those entities that must comply with the reporting requirements, as the owner or operator of a facility with 10 or more FTEs and an annual input of more than 2,640 pounds of hazardous substances. Eugene Charter § 54(3)(F). The initiative defines covered facilities, in turn, as "buildings, equipment, structures and other stationary items that are located and operated on a single site or on contiguous or adjacent sites that are owned or operated by the same person(s) and relate to a common product or service," id. § 54(3)(D), and that (1) are also within the SIC Categories of #20-#39, (2) are "solid waste incinerators that accept infectious waste," and (3) are "hazardous waste disposal incinerators," id. § 54(2.1)(A).

Under the Eugene Code's fee provision, by contrast, a "hazardous substance user," i.e. , those entities that must pay a user fee, is defined as

"[a]ny business that operates a stationary facility within the city limits of Eugene that:
"(a) Has ten or more FTEs;
"(b) Has a SIC code between [20 and 39] inclusive; and
"(c) Uses any quantity of hazardous substances (above zero) in its manufacturing processes."

Eugene Code 3.692. Covered facilities include "buildings, equipment, structures, and other stationary items that are located and operated on a single site or on contiguous or adjacent sites that are owned or operated by the same person(s) and related to a common product or service." Id . The fee provision goes on to impose a fee on those users in "an amount per FTE and shall be paid annually," and provides that the "specific amount of the fee shall be established by resolution of the city council." Id . at 3.694.

Plaintiffs in this case brought an action against the city as defendant and challenged the validity of the fee provision on a number of grounds in the trial court. Plaintiffs asserted only claims for declaratory relief that essentially sought declarations that the fee provision conflicted with state law or the city charter. The parties filed cross-motions for summary judgment. The trial court granted the city's motion, denied plaintiffs' motion, and issued a general judgment declaring that the fee provision was valid in its entirety.

On appeal, plaintiffs contend that the trial court erred when it declared that the fee provision did not violate state law or the city charter. Plaintiffs make the following four arguments: First, the fee provision assesses an impermissible quantity-based fee in violation of ORS 453.402(6) ; second, the fee provision impermissibly imposes fees on facilities that are not subject to the reporting requirements in the initiative; third, the fee provision imposes fees based on a definition of "hazardous substance user" that conflicts with the initiative's definition; and, fourth, the fee provision and the reporting program both exempt certain public employers, which is prohibited by ORS 453.370(9), a statute placing limitations on community right-to-know programs. Where, as here, there are no issues of material fact, we review the trial court's decision on the parties' cross-motions for summary judgment to determine whether either of the parties was entitled to judgment as a matter of law. Advocates I , 160 Or. App. at 297, 981 P.2d 368.

II. ANALYSIS

A. Plaintiffs' First Assignment of Error

In their first assignment of error, plaintiffs assert that the trial court erred when it declared that the city's imposition of a hazardous substance user fee did not violate ORS 453.402(6), contending that the fee provision constitutes a "quantity-based fee" on hazardous substance users. Local governments may not assess quantity-based hazardous substance user fees unless the fees support a program that exists "solely to supplement and not to duplicate the State Fire Marshal's programs under ORS 453.307 and 453.414." ORS 453.402(6). The reporting program adopted through the initiative does not exist solely to supplement the fire marshal's hazardous substance reporting program. Advocates I , 160 Or. App. at 305, 981 P.2d 368. Accordingly, the program may not be funded by quantity-based fees. Id. at 303, 981 P.2d 368.

In Advocates I , we explained that a fee is "based on quantity" when "the quantity of hazardous substance used" is a "principal component of determining whether a user pays a fee." Id. at 302, 981 P.2d 368. Plaintiffs contend that Eugene Code 3.694 imposes a quantity-based fee on a hazardous substance user because that entity is defined, in part, as a business that operates a stationary facility that "uses any quantity of hazardous substances (above zero )." Eugene Code 3.692 (emphases added). Based on that language, plaintiffs argue that the quantity of hazardous substances used is a "principal component of the determination" of whether any user pays a fee.

Plaintiffs' argument is unconvincing. A hazardous substance user must, by definition, "use" a hazardous substance. Webster's Third New Int'l Dictionary 2523-24 (unabridged ed. 2002) (defining a "user" as "one that uses" and "use" as "the act or practice of using something" and "to expend or consume by putting to use"). The challenged definition in Eugene Code 3.692 expressly establishes that connection by defining "hazardous substances user," in part, as an entity that uses "any quantity of hazardous substance (above zero)." The mere reference to quantity in the definition does not indicate that the fee is "quantity-based."

The fee provision bases the fee on conditions unrelated to quantity. The fee provision further defines a "hazardous substance user" as an entity that employs 10 or more FTEs and has a given SIC designation, and, for entities that meet that definition, calculates and assesses a fee based on the number of FTEs. As a result, an entity with 15 FTEs that uses many tons of hazardous substances will pay the same user fee as a business with 15 FTEs that uses a single ounce of hazardous substances. At the same time, an entity that uses many tons of hazardous substances, but employs fewer than 10 FTEs, will not pay a fee at all. The fee provision, in other words, first establishes the obvious fact that a "hazardous substance user" must use some amount of hazardous substances above zero and then imposes a fee on certain of those users based entirely on other, nonquantity factors. See Advocates I , 160 Or. App. at 303, 981 P.2d 368 ("Local governments remain free to determine any number of alternative thresholds; quantity of hazardous substances certainly is not the only available criterion of determining the scope of regulatory authority.").

Indeed, it is axiomatic that any fee provision that imposes a fee on hazardous substance users must, even if only implicitly, first distinguish between entities that use hazardous substances and those that do not. A fee provision that distinguishes between use and nonuse is different from one that goes a step further and imposes fees on those entities that use hazardous substances when that use passes specified numeric thresholds. The former kind of provision, like the one at issue in this case, is concerned only with whether an entity uses hazardous substances at all, not whether a particular quantity of substance is used. By contrast, the latter kind of provision, like the one we concluded was invalid in Advocates I , relies on a quantity-based threshold to impose regulations on a subset of businesses from the totality of those that use hazardous substances. That is, the fee provision at issue in Advocates I first implicitly distinguished between users and nonusers and then expressly distinguished among users based on quantity of hazardous substances used. We concluded in that case, and reiterate here, that it was that second step-where hazardous substance users were separated into subsets or tiers based on the quantity of hazardous substances that they used-that conflicted with ORS 453.402(6), not the initial step of distinguishing between users and nonusers. See Advocates I , 160 Or. App. at 303, 981 P.2d 368 (fee provision in the initiative was quantity-based because it established a "two-tiered fee, triggered by a quantity of hazardous substances"). In short, the reference to "quantity" in Eugene Code 3.692 exists to distinguish use from nonuse rather than greater use from lesser use. Only the latter is a quantity-based, as opposed to use-based, distinction.

In sum, the definition of "hazardous substance user" in Eugene Code 3.692 distinguishes between users and nonusers but does not draw a distinction based on the amount of hazardous substances used by any user. As a result, we conclude that the fee provision does not assess a "quantity-based fee" and, therefore, the trial court did not err in declaring that the city's imposition of the fee provision on plaintiffs does not violate ORS 453.402(6).

B. Plaintiffs' Second and Third Assignments of Error

In their second and third assignments of error, plaintiffs assert that the trial court erred in declaring that the fee provision does not violate the initiative, sections 2.1 and 3(F), because, plaintiffs contend, the fee provision impermissibly assesses a fee on a broader range of "facilities" and "hazardous substance users" than are subject to the reporting requirement as defined by those sections of the initiative. Plaintiffs explain that they operate covered facilities and are identified as "hazardous substance users" under the fee provision but not under the initiative. They contend that that discrepancy creates an impermissible conflict between the fee provision and the initiative and that the fee provision is void as a result.

The city may not amend the city code in a manner that conflicts with the city charter. See Portland Police Assn. v. Civil Service Board of Portland , 292 Or. 433, 440, 639 P.2d 619 (1982) ("A city's charter is, in effect, the city constitution. Any city ordinance, rule, or regulation in conflict with its provisions is void."). However, under Chapter II of the Eugene Charter, the city retains significant authority to adopt rules and ordinances that regulate entities also regulated by the charter itself. Under section 4(1) of Chapter II, "all power of the city is vested in the city council," except as expressly provided by the charter. Eugene Charter § 4(1). The charter further establishes that the city "has all powers that the constitution or laws of the United States or of this state expressly or impliedly grant or allow cities, as fully as if this charter specifically stated each of those powers." Id. § 4(2). Finally, the charter provides that "no mention of a particular power [in the charter] may be construed to be exclusive or to restrict the scope of the powers that the city would have if the particular power were not mentioned." Id. § 4(3).

With that framework in mind, we turn to the fee provision. While the fee provision does not contain any language identifying the source of the city's authority to impose a fee on hazardous substance users, we conclude that the city had the authority to enact the fee provision under its general home-rule authority, as set forth in Chapter II of the Eugene Charter and authorized by Article XI, section 2, of the Oregon Constitution. See AT&T Communications v. City of Eugene , 177 Or. App. 379, 389, 35 P.3d 1029 (2001), rev. den. , 334 Or. 491, 52 P.3d 1056 (2002) (explaining that Oregon's constitutional "home rule" provisions permit "the people of cities or towns to determine for themselves the organization and powers of their local governments without the need to obtain authority from the state legislature"); see also Eugene Charter § 4 (broadly conferring all authority not specifically denied by state or federal statute or constitution). The city's authority to enact a hazardous substance user fee does not stem from the initiative itself. Nor does the initiative or any other provision of the Eugene Charter establish that the city may assess hazardous substance user fees only on those hazardous substance users that are subject to the initiative's reporting requirements. See Ramirez v. Hawaii T & S Enterprises, Inc. , 179 Or. App. 416, 426, 39 P.3d 931, rev. den. , 335 Or. 114, 61 P.3d 256 (2002) (Portland City Code provision making landowners liable for injuries on sidewalks and curbs adjoining property not void despite more restrictive limitations on such liability in the charter because the charter did not purport to provide the "only" means by which such landowners could be held liable).

Having determined that the city had the general authority to enact the fee provision, we turn to whether the fee provision conflicts with the initiative. We initially note that there is no dispute that more facilities are covered by the fee provision and more businesses potentially meet its definition of "hazardous substance user" than under the initiative. Under the initiative, section 3(D), and the fee provision, Eugene Code 3.692, a "facility" is defined as "buildings, equipment, structures, and other stationary items that are located and operated on a single site or on contiguous or adjacent sites that are owned or operated by the same person(s) and relate to a common product or service." Facilities are only subject to the reporting requirement if they are also "solid waste incinerators that accept infectious waste" and "hazardous waste disposal incinerators." Eugene Charter § 54(2.1)(A). Under Eugene Code 3.694, by contrast, any facility that otherwise meets the definition of "hazardous substance user" under Eugene Code 3.692, and is not expressly exempt, must pay a hazardous substance user fee. Thus, covered facilities under the fee provision need not be "solid waste incinerators that accept infectious waste" and "hazardous waste disposal incinerators."

The definition of "hazardous substance user" also differs between the initiative and the fee provision. Only entities that operate a covered facility that uses more than 2,640 pounds of hazardous substance annually could be a "hazardous substance user" with respect to the reporting requirement in the initiative, subject to other limitations and exemptions. Eugene Charter § 54(3)(F). By contrast, any entity that operates a facility that uses "any quantity of hazardous substances (above zero)" could be a "hazardous substance user" with respect to the fee provision, also subject to other limitations and exemptions. Eugene Code 3.692.

While the initiative and the fee provision differ in some respects, and the fee provision applies more broadly than the reporting program it was enacted to fund, we conclude that the two do not conflict. The initiative does not provide an exclusive definition of "facility" or "hazardous substance user" in all areas of regulation and does not require that all rules, regulations, and ordinances intended to supplement or support the reporting program adopt the initiative's definitional language. Instead, the initiative provides that its definitions apply only "[a]s used in this section." Eugene Charter § 54(3). Similarly, the city council enacted the fee provision "notwithstanding any definitions" in the initiative. Eugene Code 3.692. As discussed above, the fee provision was independently enacted by the city pursuant to its general home rule authority after the quantity-based fee provision in the initiative was declared void in Advocates I and subsequently severed, which we upheld in Advocates II .

In Advocates II , we determined that the reporting scheme was "capable of independent functioning" even without a "quantity-based fee limitation." 176 Or. App. at 379, 32 P.3d 228. Thus, even after the trial court severed the funding limitation from the initiative, the initiative still constituted a functional regulatory program with its own set of criteria and limitations to govern its operation. We are not convinced that the definitional limitations in the initiative implicitly extend to other regulatory programs-even when those programs are enacted to supplement or support the initiative. Accordingly, while the initiative codifies the city's power to subject certain entities that use hazardous substances to annual reporting requirements, the initiative does not prevent the city from independently assessing hazardous substance user fees based on different criteria. Compare Ramirez , 179 Or. App. at 426, 39 P.3d 931 (Portland City Code provision addressing landowner liability for injuries on sidewalks adjoining land not in conflict with city charter provision also addressing such liability because the latter implicitly provides the city council "with the discretion to make other landowners liable * * * in the exercise of its general authority to exercise all governmental powers" (emphasis added)), with Portland Police Assn. , 292 Or. at 443, 639 P.2d 619 (rule adopted by Portland Civil Service Board addressing hiring practices and allowing the board to consider candidates differently from the exclusive method provided by the charter was "in conflict with the charter" and "beyond the Board's delegated powers"), and Employment Div. v. Ring , 104 Or. App. 713, 718, 803 P.2d 766 (1990), rev. den. , 311 Or. 432, 812 P.2d 827 (1991) (agency could not define "employment" and "wages" differently from statute without conflicting with that statute because legislature fully "established the parameters of each term" in the statute).

Further, the fee provision does not undermine the initiative or expand or restrict the power of the city with respect to the reporting program established by the initiative. As we explained in Advocates II , "the raison d'etre of the Initiative is the establishment of a local system of reporting of the use of hazardous substances." 176 Or. App. at 377, 32 P.3d 228. Nothing in the fee provision hinders the public's access to information from all entities covered by the initiative or otherwise weakens the program adopted by the voters through the initiative. Indeed, the fee provision has no effect whatsoever on which entities must comply with the reporting requirements in the initiative or on the nature of that compliance.

In sum, we conclude that the city had the authority under Chapter II of the Eugene Charter to enact a hazardous substance user fee to fund the initiative. Further, the fee provision enacted by the city is not subject to the definitional limitations applied to the reporting requirements in the initiative, including the definitions of "facility" and "hazardous substance user." Accordingly, the trial court did not err when it declared that the city's imposition of the fee provision on plaintiffs does not violate sections 2.1 or 3(F) of Amendment IV of the Eugene Charter.

C. Plaintiffs' Fourth Assignment of Error

Under ORS 453.370(9), local community right-to-know programs "may not differentiate between public and private employers." The reporting program and the fee provision both exempt "state and federal facilities" and "public educational institutions" from compliance with their respective requirements. Plaintiffs sought a declaration in their complaint and contended again during the summary judgment proceeding that the exemptions from "reporting" in section 2.2 of the Eugene Charter and "fees" in section 3.692 of the Eugene Code violate ORS 453.370(9). The trial court declared that the city's "imposition of a hazardous substance user fee on plaintiffs does not violate ORS 453.370(9)." However, the court did not declare whether the exemption from the reporting requirement violates that statute.

1. The fee provision is not a "local program" subject to ORS 453.370(9).

We first address whether the trial court erred in declaring that the city's "imposition of a hazardous substance user fee" does not violate ORS 453.370(9). Under that statute, "except as prohibited by federal or state law, a local [community right-to-know] program may not differentiate between public and private employers." A "local program" is defined as

"any law, rule, ordinance, regulation or charter amendment established, enforced or enacted by a local government that requires an employer to collect or report information relating to the use, storage, release, possession or composition of hazardous substances and toxic substances if a primary intent of the law, rule, ordinance, regulation or charter amendment is the public distribution of the information."

ORS 453.307(1).

The fee provision at issue in this case is not a "local program" because it neither requires employers to collect or report information relating to hazardous substances nor requires public distribution of such information. While information about those entities that must comply with the fee provision might be publicly available through other means-for example, public records requests-the fee provision is not designed to inform the public about the use of hazardous substances by local employers. The sole stated purpose is to establish "the procedures for payment by certain businesses that use hazardous substances of hazardous substance user fees." Eugene Code 3.690. Accordingly, the fee provision is not subject to the limitations on local programs imposed by ORS 453.370(9), and the trial court did not err when it entered a judgment declaring that the imposition of those fees on plaintiffs does not violate that statute.

2. Plaintiffs' challenge to the reporting requirements in the initiative

We turn to plaintiffs' challenge to the reporting requirements in the initiative. Plaintiffs had argued to the trial court that the exemption in the reporting program for "state and federal facilities" and "public educational institutions" amounts to an impermissible differentiation between public and private employers. As described, the trial court did not enter a declaration with respect to the validity of the reporting requirements. While the basis for the trial court's decision not to enter a declaration is not apparent from the judgment or record, we conclude that the court could not have committed error in failing to issue a declaration because plaintiffs lack standing to seek a declaration that the reporting requirements are invalid.

The city contends that plaintiffs lack standing to seek a declaration regarding the reporting requirements-section 5.1-and exemptions-section 2.2-of the initiative. If plaintiffs lacked standing, as the city argues, the trial court would not have had jurisdiction to issue a declaration as to the validity of those sections. See Dept. of Human Services v. B. M. C. , 272 Or. App. 255, 262, 355 P.3d 190 (2015). Whether a plaintiff has standing "largely depends on the statute under which the plaintiff seeks relief." MT & M Gaming, Inc. v. City of Portland , 360 Or. 544, 553, 383 P.3d 800 (2016). In this case, standing under the Declaratory Judgment Act (DJA) is at issue. The relevant provision of the act provides:

"Any person * * * whose rights, status or other legal relations are affected by a constitution, statute, municipal charter, ordinance, contract or franchise may have determined any question of construction or validity arising under any such instrument, constitution, statute, municipal charter, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder."

ORS 28.020. Thus, to bring a declaratory judgment action regarding a provision of a city charter-like the initiative's reporting requirements in this case-a plaintiff "must allege the requisite effect on the plaintiff's 'rights, status, or other legal relations.' " DeMartino v. Marion County , 220 Or. App. 44, 50, 184 P.3d 1176, rev. den. , 345 Or. 158, 190 P.3d 379 (2008) (quoting ORS 28.020 ). On summary judgment, plaintiffs can demonstrate that they have standing to seek a declaratory judgment based on the allegations of their complaint and affidavits describing with specificity any "plausible [and] concrete ramifications" of the challenged provision for plaintiffs, among other things. League of Oregon Cities v. State of Oregon , 334 Or. 645, 659-60, 56 P.3d 892 (2002).

The Oregon Supreme Court has identified three considerations that determine whether a plaintiff has standing to bring a declaratory judgment action under ORS 28.020. First, "the plaintiff must establish that the challenged law causes 'some injury to or impact upon a legally recognized interest of the plaintiff's, beyond an abstract interest in the correct application or the validity of [the] law.' " MT & M Gaming, Inc. , 360 Or. at 554, 383 P.3d 800 (quoting Morgan v. Sisters School District #6 , 353 Or. 189, 195, 301 P.3d 419 (2013) ). Put differently, "[i]t is not sufficient that a party thinks an enactment or a decision of a government entity to be unlawful. The standing requirements of ORS 28.020 require that the challenged law must affect that party's rights, status, or legal obligations." Morgan , 353 Or. at 195, 301 P.3d 419 (emphasis in original).

Second, in addition to showing an "injury or impact" on a legally recognized interest, a plaintiff "must show that the claimed injury or impact is real or probable, not hypothetical or speculative." MT & M Gaming, Inc. , 360 Or. at 555, 383 P.3d 800. As the Supreme Court explained in Morgan , courts cannot issue declaratory judgments in disputes based on "contingent or hypothetical events" rather than "present facts." 353 Or. at 195-96, 301 P.3d 419 (citing TVKO v. Howland , 335 Or. 527, 534, 73 P.3d 905 (2003) ).

Finally, the plaintiff "must show that a decision by the court will in some sense rectify the injury, i.e. , that it will have a 'practical effect on the rights that plaintiff is seeking to vindicate.' " MT & M Gaming, Inc. , 360 Or. at 555, 383 P.3d 800 (quoting Morgan , 353 Or. at 197, 301 P.3d 419 ). Unless the relief that the plaintiff seeks would "redress the injury that is the subject of the declaratory judgment action," a court cannot enter a declaratory judgment in the plaintiff's favor, because such a declaration would "amount to no more than an advisory opinion." Morgan , 353 Or. at 197, 301 P.3d 419.

In this case, the injury that is the subject of plaintiffs' declaratory judgment action is the city's allegedly unlawful exaction of hazardous substance user fees under the Eugene Code. Plaintiffs' challenge to the initiative's reporting program appears to be premised on the contention that the city is using those fees to support a program that is itself inconsistent with state law, at least to the extent that section 2.2 of the initiative exempts state and federal employers and public educational institutions.

Based on the foregoing, we conclude that plaintiffs have failed to identify a real or probable injury to their own interests. They also have failed to demonstrate that the declaration that they seek would redress the harm they have identified. First, plaintiffs are not subject to the initiative's reporting program. Plaintiffs are not currently required to report and present no argument or point to any evidence that they will be required to report in the near future. Therefore, their challenge to that program based on an alleged inconsistency with state law is, in effect, an effort "merely to vindicate a public right to have the laws of the state properly enforced and administered." Morgan , 353 Or. at 195, 301 P.3d 419 (citing Eacret et ux. v. Holmes , 215 Or. 121, 125, 333 P.2d 741 (1958) ). In other words, regardless of whether aspects of the reporting program are inconsistent with state law, plaintiffs in this case failed to present evidence that they have suffered any real or probable injury as a result of the operation of that program.

Second, plaintiffs have not identified how a declaration that the reporting program is invalid would rectify their alleged injury, namely their past or future obligation to pay a hazardous substance user fee. As we explained in Advocates II , the funding source for the initiative was validly severed from the initiative itself. 176 Or. App. at 377-78, 32 P.3d 228. The logical implication of our decision in that case is that the reporting program that remained in the initiative and the fee provision subsequently adopted by the city are distinct schemes, such that one can exist without the other. Plaintiffs have not demonstrated that the city would be obligated to cease its collection of hazardous substance user fees if the trial court were to declare certain aspects of the reporting program invalid or that any such declaration would alter the manner or extent to which the city currently assesses or has assessed hazardous substance user fees on plaintiffs. The mere possibility that such a declaration would affect plaintiffs' past or future obligation to pay the hazardous substance user fees is the kind of hypothetical outcome that falls short of the requirement that the trial court's declaration of rights have a "practical effect on the rights that plaintiff is seeking to vindicate." See Morgan , 353 Or. at 197, 301 P.3d 419.

III. CONCLUSION

To conclude, the trial court did not err when it declared that the city's imposition of the hazardous substance user fee on plaintiffs does not violate ORS 453.402(6), section 2.1 and section 3(F) of Amendment IV of the Eugene Charter, or ORS 453.370(9). The trial court also did not err when it did not declare whether the city violated ORS 453.370(9) by exempting certain public entities from the initiative's reporting program, because plaintiffs lacked standing to seek a declaration to that effect.

Affirmed.

      SIC stands for Standard Industrial Classification, a numeric code assigned to business establishments to identify the primary business thereof.

      It is true that the fee provision defines a hazardous substance user, in part, as any business that "uses any quantity of hazardous substances," but the provision would mean the same if it applied to any business that "uses hazardous substances" and omitted the reference to quantity.

      Article XI, section 2, provides that "[t]he legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the Constitution and criminal laws of the State of Oregon."

      The definition of "facility" in both the initiative and the fee provision contains an exception for "state and federal facilities" and "public educational institutions." That exception in the fee provision is the subject of plaintiffs' fourth assignment of error, which we resolve below.

      Both the initiative and the fee provision apply only to facilities with a SIC designation between 20 and 39.

      The reporting program in the initiative "shall not apply to state and federal facilities; and public educational institutions." Eugene Charter § 54(2.2). Similarly, the fee provision in the city code applies to all entities that meet the definition of a hazardous substance user "except state and federal facilities and public educational institutions." Eugene Code 3.692.

      At summary judgment, plaintiffs asserted that they have standing to seek a declaration that the fee provision is invalid based on a conflict with ORS 453.370(9). Specifically, plaintiffs argued that, by impermissibly exempting certain public entities from the fee provision, the city is requiring plaintiffs to pay more than their share of the total cost of the programs under the initiative, which are funded through the fee provision. The city, for its part, does not contend that plaintiffs lack standing to seek a declaration as to the validity of the fee provision itself. If plaintiffs lacked standing in the trial court, the court would lack jurisdiction to act on plaintiffs' requested declaration. Dept. of Human Services v. B. M. C. , 272 Or. App. 255, 262, 355 P.3d 190 (2015). We conclude that plaintiffs' assertion of proportional overpayment compared to other hazardous substance users is sufficient to establish standing. See Savage v. Munn , 317 Or. 283, 292, 856 P.2d 298 (1993) (concluding that the plaintiff property owners had standing to challenge a tax measure based on an allegation that the measure "will have the effect of making them pay proportionally more" than owners of similarly assessed properties in the same jurisdiction).

      Assuming that the initiative does differentiate between public and private employers, the city has not pointed to any federal or state law that might "prohibit" it from not differentiating between the two in the manner that it does.


author: ARMSTRONG, P. J.

text:
    In the MATTER OF the COMPENSATION OF David D. DUNN, Claimant.
    SAIF Corporation and PeaceHealth Corp - Sacred Heart Medical Center, Petitioners, v. David D. Dunn, Respondent.
    A164104
    Court of Appeals of Oregon.
    Argued and submitted January 31, 2018. April 24, 2019
    David L. Runner, Salem, argued the cause and filed the briefs for petitioners.
    Dale C. Johnson, Springfield, argued the cause and filed the brief for respondent.
    Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
   ARMSTRONG, P. J.

In this petition for judicial review, we are asked to address whether the Workers' Compensation Board erred in determining that claimant's congenital bone condition in his foot known as "unfused apophysis" was not a "preexisting condition," within the meaning of ORS 656.005(24), to be considered in determining the cause of claimant's inflammatory condition known as "apophysitis." Reviewing the board's order for substantial evidence and legal error, ORS 656.298 ; ORS 183.482(7), (8), we conclude that the board did err, and we therefore reverse and remand the board's order for reconsideration.

Initially, we set out some relevant legal context. This case presents an issue of statutory construction relating to preexisting conditions in occupational disease claims. ORS 656.802 defines "occupational disease" and also states that preexisting conditions are "deemed causes in determining major contributing cause":

"(1)(a) As used in this chapter, 'occupational disease' means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death[.]
"* * * * *
"(2)(a) The worker must prove that employment conditions were the major contributing cause of the disease.
"* * * * *
"(e) Preexisting conditions shall be deemed causes in determining major contributing cause under this section."

ORS 656.005(24), in turn, defines "preexisting condition" for both injury and occupational disease claims:

"(24)(a) 'Preexisting condition' means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
"(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis; and
"(B)(i) In claims for an initial injury or omitted condition, the diagnosis or treatment precedes the initial injury;
"(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new medical condition; or
"(iii) In claims for a worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the worsened condition.
"(b) 'Preexisting condition' means, for all occupational disease claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment and that precedes the onset of the claimed occupational disease, or precedes a claim for worsening in such claims pursuant to ORS 656.273 or 656.278.
"(c) For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury."

(Emphasis added.) As relevant here, in the occupational disease context, a preexisting condition is one that "contributes to disability or need for treatment." We note that paragraph (24)(c), which states that a condition does not "contribute" if it "merely renders the worker more susceptible to the injury," applies only "[f]or the purposes of industrial injury claims."

The seminal case relating to proof of an occupational disease is Dethlefs v. Hyster Co. , 295 Or. 298, 310, 667 P.2d 487 (1983), in which the court held that a disease is compensable if work activities are the major contributing cause of the disease or its worsening. In Liberty Northwest Ins. Corp. v. Spurgeon , 109 Or. App. 566, 569, 820 P.2d 851 (1991), rev. den. , 313 Or. 210, 830 P.2d 596 (1992), we first drew a distinction between a preexisting condition that contributes to the cause of the disease, and a preexisting condition that is merely a predisposition or that merely renders the work more susceptible but does not contribute to the cause. We held that "[a]ll causes of a disease, as opposed merely to a susceptibility or predisposition, must be considered in determining which, if any, was the major contributing cause." Id. We explained:

"An employer is responsible for a disease that a claimant who has a particular susceptibility or predisposition develops due in major part to conditions at work. The predisposition to disease is not a bar to compensability, if work causes the disease. In that sense, the employer takes the employee as it finds her."

Id.

In Portland Adventist Medical Center v. Buckallew , 124 Or. App. 141, 861 P.2d 380 (1993), we followed Spurgeon , stating that "[t]here is * * * a distinction between the cause of a disease and a predisposition to the development of that disease." Id. at 144, 861 P.2d 380. The claimant in Buckallew had diabetes-related neuropathy that caused a loss of feeling in his foot and that created a predisposition to development of a form of arthritis known as "Charcot's joint." The employer denied a claim for Charcot's joint, contending that the claimant's neuropathy was not merely a predisposition to the development of Charcot's joint but was, instead, a cause of the disease. But the board found that the medical evidence indicated that the diabetic neuropathy did not cause the condition. Rather, the major contributing cause of the condition was the microtrauma of walking at work. In upholding the compensability of the condition, we concluded that the board's findings were supported by the evidence and that the claimant's neuropathy was "but a predisposition to, and not a cause of, his Charcot's joint." Id .

The legislature first adopted ORS 656.005(24) as a definition of "preexisting condition" in 1995, in response to Spurgeon and Buckallew . See Or. Laws 1995, ch. 332, § 1. That original definition applied to both injury and occupational disease claims, and expressly required consideration of "any injury, disease, congenital abnormality, personality disorder or similar condition that contributes or predisposes a worker to disability or a need for treatment." (Emphasis added.) At the same time, the legislature adopted ORS 656.802(2)(e), stating that "[p]reexisting conditions shall be deemed causes in determining major contributing cause [in an occupational disease claim]." Or. Laws 1995, ch. 332, § 56.

Then, in 2001, the legislature amended ORS 656.005(24) to delete the phrase "or predisposes a worker" from the definition of "preexisting condition." Or. Laws 2001, ch. 865, § 1. The legislature also amended ORS 656.005(24) to its current form, which defines "preexisting condition" differently for injury and occupational disease claims. In the same section of the bill, the legislature added paragraph (24)(c):

"For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury."

The legislature did not change ORS 656.802(2)(e).

In Multnomah County v. Obie , 207 Or. App. 482, 486-88, 142 P.3d 496 (2006), we had the opportunity to consider whether statutory changes since Spurgeon and Buckallew required a different analysis in the context of occupational disease claims involving preexisting conditions. The claim in Obie was for a mental disorder diagnosed as "complex, severe psychological stress reaction to the death of [a] coworker." The claimant had a history of chronic anxiety and depression that made her "vulnerable" to that type of reaction but that the board found had not contributed to her disability or need for treatment. The board concluded that, under ORS 656.005(24)(b), the claimant's preexisting chronic anxiety and depression could not be considered a preexisting condition in determining the cause of the complex severe psychological stress reaction.

The employer in Obie asked us to conclude that, because the legislature had limited the application of ORS 656.005(24)(c) to industrial injury claims but had retained the requirement in ORS 656.802(2)(e) that "preexisting conditions shall be deemed causes in determining major contributing cause" in the occupational disease context, necessarily, the claimant's preexisting condition that made her "vulnerable" (but that did not contribute to the cause of a disease) was subject to consideration in assessing the cause of the mental disorder. We rejected that contention, essentially concluding that, despite the statutory changes, the rule announced in Spurgeon remained applicable in the occupational disease context. Citing the definition of "preexisting condition" in ORS 656.005(24)(b), and legislative history that we said showed an intention to eliminate "predispositions" from consideration in the occupational disease context, we held that the claimant's mere "vulnerability" could not be considered in the causation analysis. Id . at 488-89, 142 P.3d 496. We have since adhered to Obie and have continued to treat Spurgeon and Buckallew as precedent. In Murdoch v. SAIF , 223 Or. App. 144, 146, 194 P.3d 854 (2008), we overturned SAIF's denial of an occupational disease claim for an infection requiring amputation of the claimant's toe. We held, citing Obie and ORS 656.005(24)(c), that the claimant's preexisting diabetic neuropathy and microvascular disease, which made him unable "to mount as strong of a response to these types of insults and these types of infections" (emphasis in original), had merely rendered him susceptible, but had not contributed to the cause of the infection that resulted in the need for amputation of the toe and was not, therefore, a "cause" for purposes of determining major contributing cause under ORS 656.802. Murdoch , 223 Or. App. at 149, 194 P.3d 854.

In Lowells v. SAIF , 285 Or. App. 161, 164-65, 396 P.3d 241 (2017), an occupational disease case, the claimant asserted that SAIF had erroneously considered the claimant's personal factors, including deconditioning, age, and weight, in determining the compensability of a claim for "chronic pain disorder." We said, citing Spurgeon and Obie , that

"the major contributing cause of a disease must be determined by a weighing of all causes, as distinct from susceptibilities and predispositions. Thus, a worker's personal factors are part of the equation, if, and only if, they are causes."

Lowells , 285 Or. App. at 164, 396 P.3d 241. We upheld SAIF's denial of the claim, explaining that substantial evidence supported the board's conclusion that factors other than work were the major contributing cause of the claimant's symptoms. In a footnote, citing ORS 656.802(2)(e) and ORS 656.005(24)(b), we said that "[p]reexisting conditions that are 'causes' are also to be considered in determining major contributing cause" in the occupational disease context. 285 Or. App. at 164 n. 3, 396 P.3d 241.

We now summarize the facts of this case from the ALJ's and the board's findings, which are supported by substantial evidence. Claimant has a congenital condition in his foot known as "unfused apophysis" of the fifth metatarsal, meaning that a small bone on the outside of his foot has not fused to the metatarsal bone but is attached by fibrocartilaginous material. Claimant, who works for employer in a hospital setting, is on his feet and walks all day, except during breaks. Claimant had not previously experienced symptoms due to his apophysis, but developed pain in his foot that gradually worsened over a period of months, and that the medical experts have diagnosed as apophysitis, an inflammation of the fibrocartilaginous attachment between the pieces of the unfused apophysis. Claimant's condition could occur only because of the apophysis and the micromotions caused by the tendon tugging on the unfused fibrocartilaginous attachment between the pieces of the unfused apophysis during walking.

Dr. Loveland, claimant's treating physician, opined that a person can have apophysis for his entire life without experiencing any symptoms, and that claimant's inflammation was work related, caused by the activity of walking. Dr. Fellars conducted an examination of claimant on behalf of SAIF and concluded that claimant's work likely exacerbated claimant's symptoms but did not pathologically worsen the unfused metatarsal apophysis. SAIF denied the claim, stating that work was not the major contributing cause of the condition.

An ALJ and the board overturned SAIF's denial. The ALJ determined that Loveland's opinion was more persuasive and that claimant's work was the major contributing cause of his inflammation or apophysitis. The ALJ's analysis turned on his conclusion that the apophysis was a "passive contributor" that merely made claimant more susceptible to apophysitis.

The board adopted the ALJ's order with supplementation. The board referred to Spurgeon , Obie , and Murdoch in explaining that, "in accordance with ORS 656.005(24)(c)," a condition that merely renders a claimant more susceptible to infection cannot be considered a "cause" for the purpose of determining the major contributing cause of an occupational disease. The board also cited our opinion in Corkum v. Bi-Mart Corp. , 271 Or. App. 411, 419, 350 P.3d 585 (2015), an injury case, for its discussion of the meaning of the term "susceptible," as used in ORS 656.005(24)(c). Corkum , citing legislative history, held that a condition only renders a worker more susceptible to injury for purposes of ORS 656.005(24)(c) if the condition "increases the likelihood that the affected body part will be injured by some other action or process but does not actively contribute to damaging the body part." 271 Or. App. at 422, 350 P.3d 585.

In upholding the compensability of the claim, the board here found more persuasive the medical opinion of Loveland, who stated that claimant's preexisting unfused apophysis did not cause, but only predisposed him to, an inflammation of his apophysis. The board concluded, like the ALJ, that claimant's apophysis is not a preexisting condition, because it was a "passive contributor" that did not "actively contribute" to the development of apophysitis.

On judicial review, SAIF takes issue with the board's analysis, contending that ORS 656.005(24)(c) is inapplicable in the occupational disease context. Understandably, SAIF is concerned that the board and this court-in Obie and Murdoch in particular-have mistakenly referred to ORS 656.005(24)(c) in cases involving occupational disease claims, when the statute's text clearly applies only to injury claims. SAIF asserts that the application of ORS 656.005 (24)(c) in the occupational disease context is inconsistent with other statutory provisions, in particular ORS 656.802(2)(e) and ORS 656.804, which SAIF contends show an intention to treat predispositions as preexisting conditions.

We are persuaded by SAIF's argument that we should not have cited ORS 656.005(24)(c) as a source for our conclusions in Obie , 207 Or. App. at 487, 142 P.3d 496, and Murdoch , 223 Or. App. at 150, 194 P.3d 854, that a susceptibility or predisposition that does not contribute to the cause of an occupational disease is not a preexisting condition. We should have separately addressed the question under the statutory context of occupational disease claims. We do so here, and we adhere to our conclusion in Obie , relying on Spurgeon , that a mere susceptibility or predisposition that does not contribute to the cause of symptoms or a need for treatment is not a preexisting condition in the occupational disease context.

As noted, ORS 656.802(1)(a) defines an occupational disease as "any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment," and assigns to the claimant the burden to establish that employment conditions were the major contributing cause of the disease. ORS 656.802(2)(e) requires that "preexisting conditions shall be deemed causes in determining major contributing cause." Also as noted, ORS 656.005(24)(b), in turn, defines a preexisting condition in the occupational disease context as a condition that "contributes to disability or need for treatment." The definition of preexisting condition in ORS 656.005(24)(b) is applicable to ORS 656.802(2)(e). See ORS 656.003 (the definitions given in ORS chapter 656 govern unless context requires otherwise).

In Obie , as noted, we rejected the employer's contention that, in light of ORS 656.005(24)(c), the legislature's failure to similarly exclude susceptibilities from preexisting conditions in the occupational disease context reflected an intention that susceptibilities are to be treated as preexisting conditions. In so concluding, we cited the definition of "preexisting condition" in ORS 656.005(24)(b), which explicitly requires that a preexisting condition contribute to the disability or need for treatment, and the legislative history of that statute, which we understood to support the conclusion that the legislature intended to exclude predispositions from consideration as preexisting conditions in the occupational disease context. SAIF notes here that some of that legislative history could be understood to address only injury claims.

We have again reviewed the legislative history and agree that it is not always clear whether testimony is addressing injury claims, occupational disease claims, or both. But we adhere to our conclusion in Obie that the legislative history nonetheless shows a clear intention that, with respect to both injury and occupational disease claims, susceptibilities that do not actively contribute to the cause of a condition are not to be weighed in determining major contributing cause. Jerry Keene, an attorney practicing workers' compensation law, had been involved in the drafting of the 1995 legislation and had closely observed the development of the 2001 amendments. He was invited by Senator Derfler and Committee Chair Corcoran to address the Senate Committee on Business, Labor, and Economic Development, and explain the intentions behind the 2001 amendments. He testified that the 2001 amendments were intended to restore Spurgeon and Buckallew , both of which involved occupational disease claims. Tape Recording, Senate Committee on Business, Labor, and Economic Development, SB 485, Mar. 14, 2001, Tape 49, Side A (statement of Jerry Keene).

Contrary to SAIF's contention, other statutory provisions are not inconsistent with that intention. Both ORS 656.802(2)(e) and ORS 656.804 require application of the definition of "preexisting condition" in ORS 656.005(24)(b), which, as we have emphasized, requires that the preexisting condition "contributes to disability or need for treatment." Spurgeon established that a preexisting condition that only predisposes or makes a worker more susceptible to an occupational disease, but that does not contribute to the cause of the condition, is not a part of the causation equation. In Corkum , we said, citing legislative history, that a condition only renders a worker more susceptible to injury for purposes of ORS 656.005(24)(c) if the condition "increases the likelihood that the affected body part will be injured by some other action or process but does not actively contribute to damaging the body part." 271 Or. App. at 422, 350 P.3d 585. It is true that Corkum was an injury case and addressed the meaning of the term "susceptible" as used in ORS 656.005(24)(c). But the legislative history cited in Corkum is the same legislative history on which we have relied in this opinion, and it is equally persuasive in the occupational disease context. Id . The upshot of our case law and the statutory changes since 2001 is that, in the occupational disease context, a predisposition or susceptibility may be considered in the causation analysis only if it actively contributes to the disability or need for treatment.

Whether claimant's apophysis constituted a mere susceptibility or predisposition, because it only increased the likelihood of claimant developing apophysitis and did not actively contribute to the cause of the inflammation, is a medical question. Lowells , 285 Or. App. at 165, 396 P.3d 241. The board, in adopting the ALJ's order, described Loveland's description of claimant's condition:

"She felt claimant's condition was traction apophysitis which occurs when the right peroneus brevis tendon repetitively pulls on the tissue of the apophysis which occurs with the foot lifting and moving outward as a person ambulates. She explained this micromotion causes inflammation and pain and that inflammation is a condition and status of the body and the specific pathology involved."

In a concurrence letter, Loveland agreed with claimant's counsel that

"[t]he medical condition at issue in this case is traction apophysitis. As you explained to me, the condition occurs when the right peroneus brevis tendon repetitively pulls on the fibrous tissue of the apophysis."

It is undisputed that claimant could not have developed apophysitis in the absence of the unfused apophysis and the tugging of the tendon on the fibrous tissue around the unfused bone; thus, it would seem that the unfused nature of the apophysis contributed to the development of claimant's symptoms in more than a passive way. The anatomical anomaly allowed the motion of the tendon to pull on the fibrous tissues of the unfused apophysis and cause the inflammation. If claimant's unfused apophysis, combined with the micromotion of claimant's tendon pulling on the fibrous tissue when claimant walked, caused the apophysitis, then claimant's apophysis would properly be characterized as a preexisting condition under ORS 656.005 (24)(b), and a cause that must be weighed under ORS 656.802(2)(e). But Loveland also concurred in the attorney's statement that claimant's apophysis "merely made [claimant] susceptible to apophysitis." The conclusion that the apophysis merely made claimant susceptible appears to be inconsistent with the doctor's description of the mechanical cause of the inflammation.

In light of that apparent inconsistency, we conclude that the board's finding that claimant's apophysis did not itself actively contribute to claimant's disability or need for treatment is not supported by substantial reason. We therefore remand the board's order for reconsideration so that it can resolve the apparent inconsistency and apply the correct legal standard to an evaluation of the cause of claimant's apophysitis.

Reversed and remanded.

      We did not at that time explicitly address ORS 656.802(2)(e).

      SAIF's arguments are in part premised on its position that claimant's occupational disease claim should be analyzed as a "worsening" of a preexisting condition under ORS 656.802(2)(b), which states:
      "If the occupational disease claim is based on the worsening of a preexisting disease or condition pursuant to ORS 656.005(7), the worker must prove that employment conditions were the major contributing cause of the combined condition and pathological worsening of the disease."
      We do not understand the theory of compensability to be based on a worsening of a preexisting condition. Rather, the claim is for the inflammatory condition of apophysitis. In either case, the burden of proof is the same major contributing cause standard.

      Jerry Keene testified:
      "What this bill does is say, carve out of that definition of a preexisting condition those conditions which do not actively contribute to the disability or need for treatment involved in an active way. But instead, if they are merely predisposing factors, and the doctors think they know what they mean by those terms, they are no longer to be considered preexisting conditions * * *. Currently, the law defines preexisting conditions as traits, characteristics, asymptomatic conditions, such as age, gender, weight, history of smoking, alcohol use, abuse, family history, some congenital factors, those are all deemed preexisting conditions that don't actively contribute that still are deemed causes under the current law. Under the new law, they won't. * * * Section 1 accomplishes that change by eliminating the verb 'predisposes' from the definition of a 'preexisting condition.' * * * And the courts will deem that as significant and it was on purpose. This verb was added to the statutes to head off a line of cases in 1995 that were exemplified by [Spurgeon ] and [Buckallew ]. Spurgeon determined that predisposing factors did not constitute causes and couldn't be weighed, and Buckallew said, and you have to decide whether something is a predisposing factor or a cause in every case, case by case, with no general rule to help it out, just based on the medical evidence in each case.
      "This change will take us back to the pre-1995 change and will bring back Spurgeon and Buckallew and the need to litigate the difference between predisposing factors and preexisting conditions in every case where it matters with one important difference. The language includes a phrase that was put in quite definitely on purpose. And it states, and it's a legal principle to guide the courts in trying to draw the line between preexisting conditions and predisposing factors. And that principle is that a condition does not contribute to disability or treatment if it merely renders the worker more susceptible to the injury. This is intended to draw a line and the word 'merely' is critical because it emphasizes that the distinction turns on the difference between active and passive contribution. This tells the courts that any condition or factor whose only contribution is to make the worker more susceptible to the injury, those are predisposing factors, don't weigh them. And if it does anything more they are preexisting conditions and weigh them. And that's what that phrase is for. When the courts wonder what that line is for it was to help them draw a line. And this active/passive distinction I think is the most critical one. It sets up a distinction between passive contributors such as age, gender, obesity, smoking, and active ongoing contributors to damage in the body part involved like previous injuries or diseases, degenerative conditions, diabetes, presbycusis, conditions that have their own independent active pathological impact on the body part. If they do not, if they merely render the worker more susceptible to the injury that occurred then it's a predisposing factor and should not be weighed as a cause.
      "* * * The second major change in injury claims requires that a preexisting condition need to have been diagnosed before or a certain point in time or it doesn't constitute a preexisting condition that gets weighed. * * * And of course, this particular aspect applies to injury claims, not occupational disease claims."
      Tape Recording, Senate Committee on Business, Labor, and Economic Development, SB 485, Mar. 14, 2001, Tape 49, Side A (statement of Jerry Keene) (emphasis added).