April 28, 2021 – Members of Oregon Families for Boating have taken legal action to repeal overreaching regulations on the Lower Willamette River, set to go into effect on May 1, 2021. We have filed petitions with the Oregon Court of Appeals and the Oregon State Marine Board (OSMB) to ensure boating opportunities are available for all Oregonians. Those filings allege that the Lower Willamette rules, and the lack of transparency in which they were enacted, violate several state laws. Our goal of this legal action is to make Oregon’s waterways safe and accessible for all by paving the way for more sensible regulations.
Earlier this year, the OSMB voted to enact sweeping regulations on the Lower Willamette River that significantly impact the motorized boating community. These amendments ban wakesurfing and heavily restrict all towed sports, including tubing, skiing and wakeboarding on almost 13 miles of the Willamette River from downtown Portland to Willamette Falls.
We’ve filed a petition with the OSMB, requesting that the regulations be repealed immediately on the following grounds:
The OSMB’s final decision to adopt the rules violates Oregon law, requiring meetings of a governing body to be open to the public. During a public meeting held on January 27, 2021, the OSMB initially voted not to adopt the rules, determining that further consideration of alternatives was needed. Then the Board took a break. It appears that members of the OSMB met in private and deliberated during that break, off the public record. Off-record comments from third parties may have influenced these deliberations as well. When the Board reconvened, it moved to reconsider the decision and then voted again – this time to adopt the rules. Any private deliberation of the OSMB members would be unlawful, which makes the vote improper and the final decision invalid.
The Lower Willamette rules violate the OSMB’s existing policy directive, which requires the agency to resolve problems by using management measures including education, information, signing, voluntary restrictions or increased enforcement of existing laws before acting to restrict public use and enjoyment of boats. The OSMB has not attempted to resolve the perceived problems on the river with management measures, and this failure violates its directive.
The OSMB is required to seek recommendations of affected local jurisdictions and authorities before adopting regulations for local waterways. Although the City of Portland initially supported the rules, it withdrew support after it came to light that the safety rationale had been over-stated and was inconsistent with recommendations from public safety agencies. The OSMB failed to consider the City’s revised position when it voted to adopt the regulations. The OSMB also failed to seek any input from other affected municipalities, including the City of Milwaukie.
The OSMB is required to limit any significant adverse effect on small businesses. The record clearly suggests that the purposes of the rules could have been be achieved in a manner that is substantially less intrusive and costly to small businesses. The agency’s failure to consider that approach violated its duty to consider and adopt alternatives that would be less impactful for local businesses.
Upon receipt of the petition, the OSMB will be required to re-open public comment on the regulations, including whether options exist for achieving the rule’s goals in a way that reduces negative economic impact on businesses.
We’ve also petitioned to the Oregon Court of Appeals, asking the court to find the regulations invalid because the rules exceed OSMB’s statutory authority and were adopted in violation of the applicable rulemaking procedures.
The complete petitions can be viewed here. Please be aware these petitions will not prevent the new regulations from going into effect on May 1, 2021. Boaters should continue to follow local rules. To stay up to date about the progress of these petitions, including the opportunity to provide public comment, follow Oregon Families for Boating on Facebook, Instagram and Twitter.