Opinion
CA A39283
Argued and submitted January 22, 1987.
Rule challenge dismissed as moot May 6, 1987.
Judicial Review of a Temporary Rule of the Oregon Department of Fish Wildlife.
Robert C. Moberg, Seaside, argued the cause for petitioners. With him on the brief was Campbell, Moberg Canessa, Seaside.
Richard D. Wasserman, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Rule challenge dismissed as moot.
Petitioners challenge the promulgation by the Director of the Department of Fish and Wildlife of a temporary rule repealing OAR 635-42-140 and thereby eliminating the Columbia River commercial sturgeon setline season. ORS 183.400. We grant respondents' motion to dismiss.
Former OAR 635-42-140 provided, in pertinent part:
OAR 635-42-140 was later suspended by another temporary rule which became effective on December 22, 1986, and was permanently repealed as of January 23, 1987. Those actions are not before us in this case.
"Sturgeon may be taken by setline for commercial purposes from noon April 1 to Noon April 30 in the Columbia River * * *."
The challenged rule repealed OAR 635-42-140. It became effective on January 28, 1986. A temporary rule adopted under ORS 183.335(5), as this one was, "may be effective for a period of not longer than 180 days." ORS 183.335(6)(a). Respondents contend that petitioners' challenge is moot, because the temporary rule lapsed in July, 1986, by operation of law. Petitioners contend that we should nevertheless address the controversy, because it is "capable of repetition, yet evading review" and involves a matter of public importance. Assuming that we have authority to decide moot questions, see Hay v. Dept. of Transportation, 301 Or. 129, 134, 719 P.2d 860 (1986), we decline to do that in this case. See Hay v. Dept. of Transportation, supra; McKnight v. LCDC, 69 Or. App. 642, 687 P.2d 170 (1984), rev den 299 Or. 522 (1985).
Rule challenge dismissed as moot.