June 22, 2022 - Oregon Sheriffs are opposed to amending OAR 250-010-0121 to reduce the noise level from watercraft, and are also opposed to amending this rule to add a reasonable person standard. As an initial matter, it appears that the petition for these changes arises from conduct by a single person in a specific location. Amending a statewide rule to address the conduct of a single person is a significant overreach, and behavior that presents a problem in an urban environment is not likely to present the same problem when done in one of Oregon’s many remote locations. Oregon Sheriffs recognize that this specific individual is creating real livability issues for nearby residents and they could certainly support a rule amendment that applies to this specific location, but trying to regulate conduct in the entire state based upon a problem in a single neighborhood makes no sense. The same is true of the proposal to restrict specific activities like flips or other aerial tricks. Prohibiting this conduct in the Owyhee reservoir or Lake Billy Chinook based upon the conduct of a single person in a small section of the Willamette ignores the reality that Oregon is a huge and diverse state and is over-regulation. We would also note that these homeowners have an existing remedy – they could bring a private nuisance lawsuit against the individual.
More importantly, noise regulation is extraordinarily difficult in any context. A “reasonable person standard” invites a huge amount of subjective interpretation and subsequent challenges to any enforcement action. This is why the Oregon Legislature has tinkered with the “basic rule for speed” so many times, and has largely replaced it with speed limit violations based upon a posted speed. It is a basic principle of due process that a law is void for vagueness if its prohibitions are not clearly defined, and a “reasonable person standard” is likely to lead to arbitrary or discriminatory application. Given the societal and Legislative focus on treating people equitably, we simply cannot support a standard that invites subjective interpretation of whether a person is violating the law.
These homeowners have a legitimate problem and they deserve some relief from the activities of this inconsiderate boater, whether done through a targeted regulation or private litigation. Mandating rules for the entire state based upon an isolated incident is not a legitimate solution and is not something Oregon Sheriffs can support.
Oregon State Sheriffs' Association