Oregon Revised Statutes

Or. Rev. Stat. § 183.400 (2026)

Judicial determination of validity of rule

✓ current as of May 2026

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183.400 Judicial determination of validity of rule. (1) The validity of any rule may be determined upon a petition by any person to the Court of Appeals in the manner provided for review of orders in contested cases. The court shall have jurisdiction to review the validity of the rule whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question, but not when the petitioner is a party to an order or a contested case in which the validity of the rule may be determined by a court.

(2) The validity of any applicable rule may also be determined by a court, upon review of an order in any manner provided by law or pursuant to ORS 183.480 or upon enforcement of such rule or order in the manner provided by law.

(3) Judicial review of a rule shall be limited to an examination of:

(a) The rule under review;

(b) The statutory provisions authorizing the rule; and

(4) The court shall declare the rule invalid only if it finds that the rule:

(a) Violates constitutional provisions;

(b) Exceeds the statutory authority of the agency; or

(5) In the case of disputed allegations of irregularities in procedure which, if proved, would warrant reversal or remand, the Court of Appeals may refer the allegations to a master appointed by the court to take evidence and make findings of fact. The court’s review of the master’s findings of fact shall be de novo on the evidence.

(6) The court shall not declare a rule invalid solely because it was adopted without compliance with applicable rulemaking procedures after a period of two years after the date the rule was filed in the office of the Secretary of State, if the agency attempted to comply with those procedures and its failure to do so did not substantially prejudice the interests of the parties. [1957 c.717 §6; 1971 c.734 §9; 1975 c.759 §9; 1979 c.593 §17; 1987 c.861 §3]

Notes of Decisions

Cited in 360 cases (58 in the last 5 years), 1962–2026 · leading case: Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016).

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Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016). · cites it 18× “Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals.”

Kellas v. Dep't of Corr., 145 P.3d 139 (Or. 2006). · cites it 15× “Petitioner below (respondent on review) Kellas 1 challenges the lawfulness of two administrative rules under ORS 183.400, which provides, in part, that “[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals!.”

Alto v. State Fire Marshal, 876 P.2d 774 (Or. 1994). · cites it 37× “The bases of that conclusion were that the plaintiffs had alleged trespass and nuisance; “the rule’s validity would determine whether the parking was privileged,” and “ORS 183.400 does not authorize the Court of Appeals to award damages, Burke v.”

Hay v. Oregon Dep't of Transp., 719 P.2d 860 (Or. 1986). · cites it 18× “ORS 183.400 does not authorize the Court of Appeals to award damages, Burke v.”

State Ex Rel. Engweiler v. Felton, 260 P.3d 448 (Or. 2011). · cites it 14× “These three cases, which we have consolidated for purposes of argument and opinion, involve one administrative rule challenge (ORS 183.400) and two mandamus actions (ORS 34.”

Burke v. Child.'s Servs. Div., 607 P.2d 141 (Or. 1980). · cites it 16× “See ORS 183.400. In the absence of such a declaration, however, it remains an effective statement of existing practice or policy, binding on the agency, until repealed according to procedures required by the Administrative Procedures Act.”

Wolf v. Oregon Lottery Comm'n, 182 P.3d 180 (Or. 2008). · cites it 12× “ORS 183.400. 1 This is such a case. The Oregon Lottery Commission (the Lottery), after notice and a series of hearings, promulgated a rule, former OAR 177-040-0026 (2004), dealing with the payments that the Lottery would make to businesses (called “retailers”) that make video…”

W. States Petroleum Ass'n v. Envtl. Quality Comm'n, 439 P.3d 459 (Or. Ct. App. 2019). · cites it 26× “Although, as we discuss below, Wolf is generally instructive regarding the limits of our review in a rule challenge under ORS 183.400, it is not directly applicable *306 here because Wolf considered solely whether an agency exceeded its statutory authority under ORS 183.”

Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351 (Or. 1995). · cites it 10× “The standard is described in Planned Parenthood, which involved a rule challenge brought under ORS 183.400. This court's discussion of statutory authority in that context is pertinent in the present contested case proceeding, because Employer's argument is, in effect, that the…”

GTE Nw. Inc. v. Pub. Util. Comm'n, 900 P.2d 495 (Or. 1995). · cites it 17× “, (GTE) challenges, under ORS 183.400, 1 certain rules adopted by the Public Utility Commission (PUC).”

Sterling v. Cupp, 625 P.2d 123 (Or. 1981). · cites it 6× “[26] When a rule is challenged apart from a specific order, ORS 183.400(1) places jurisdiction for judicial review in the Court of Appeals, and the petitioner need not first request the agency to pass on the validity of its rule.”

Smith v. Dep't of Corr., 182 P.3d 250 (Or. Ct. App. 2008). · cites it 12× “Pursuant to ORS 183.400, 1 petitioner, an inmate of a Department of Corrections (DOC) facility, challenges a number of rules in OAR chapter 219, division 131, that govern incoming and outgoing inmate mail.”

Show all 360 citing cases →

— Or. Rev. Stat. § 183.400(1) — 84 cases

Kellas v. Dep't of Corr., 145 P.3d 139 (Or. 2006). “Petitioner below (respondent on review) Kellas 1 challenges the lawfulness of two administrative rules under ORS 183.400, which provides, in part, that “[t]he validity of any rule may be determined upon a petition by any person to the Court of Appeals!.”

Alto v. State Fire Marshal, 876 P.2d 774 (Or. 1994). “The bases of that conclusion were that the plaintiffs had alleged trespass and nuisance; “the rule’s validity would determine whether the parking was privileged,” and “ORS 183.400 does not authorize the Court of Appeals to award damages, Burke v.”

Hay v. Oregon Dep't of Transp., 719 P.2d 860 (Or. 1986). “ORS 183.400 does not authorize the Court of Appeals to award damages, Burke v.”

Sterling v. Cupp, 625 P.2d 123 (Or. 1981). “[26] When a rule is challenged apart from a specific order, ORS 183.400(1) places jurisdiction for judicial review in the Court of Appeals, and the petitioner need not first request the agency to pass on the validity of its rule.”

Burke v. Child.'s Servs. Div., 607 P.2d 141 (Or. 1980). “See ORS 183.400. In the absence of such a declaration, however, it remains an effective statement of existing practice or policy, binding on the agency, until repealed according to procedures required by the Administrative Procedures Act.”

— Or. Rev. Stat. § 183.400(2) — 32 cases

Oregon Restaurant Servs., Inc. v. Oregon State Lottery, 112 P.3d 398 (Or. Ct. App. 2005).

Hay v. Oregon Dep't of Transp., 719 P.2d 860 (Or. 1986). “ORS 183.400 does not authorize the Court of Appeals to award damages, Burke v.”

Pulito v. Bd. of Nursing, 468 P.3d 401 (Or. 2020).

— Or. Rev. Stat. § 183.400(3) — 55 cases

Wolf v. Oregon Lottery Comm'n, 182 P.3d 180 (Or. 2008). “ORS 183.400. 1 This is such a case. The Oregon Lottery Commission (the Lottery), after notice and a series of hearings, promulgated a rule, former OAR 177-040-0026 (2004), dealing with the payments that the Lottery would make to businesses (called “retailers”) that make video…”

Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016). “Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals.”

Application of Portland Gen. Elec. Co., 561 P.2d 154 (Or. 1977).

State Ex Rel. Engweiler v. Felton, 260 P.3d 448 (Or. 2011). “These three cases, which we have consolidated for purposes of argument and opinion, involve one administrative rule challenge (ORS 183.400) and two mandamus actions (ORS 34.”

W. States Petroleum Ass'n v. Envtl. Quality Comm'n, 439 P.3d 459 (Or. Ct. App. 2019). “Although, as we discuss below, Wolf is generally instructive regarding the limits of our review in a rule challenge under ORS 183.400, it is not directly applicable *306 here because Wolf considered solely whether an agency exceeded its statutory authority under ORS 183.”

— Or. Rev. Stat. § 183.400(3)(a) — 6 cases

Oregon Ass'n of Acupuncture & Oriental Med. v. Bd. of Chiropractic Examiners, 320 P.3d 575 (Or. Ct. App. 2014).

Fremont Lumber Co. v. Energy Facility Siting Council, 16 P.3d 1147 (Or. 2001).

Smith v. Bd. of Parole & Post-Prison Supervision, 356 P.3d 158 (Or. Ct. App. 2015).

Wolf v. Oregon Lottery Comm'n, 149 P.3d 303 (Or. Ct. App. 2006).

— Or. Rev. Stat. § 183.400(3)(b) — 4 cases

Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).

Merrick v. Bd. of Higher Educ., 797 P.2d 388 (Or. Ct. App. 1990).

Wolf v. Oregon Lottery Comm'n, 149 P.3d 303 (Or. Ct. App. 2006).

Kids Against the Cut v. Oregon Wage & Hour Comm'n, 597 P.2d 1264 (Or. Ct. App. 1979).

— Or. Rev. Stat. § 183.400(3)(c) — 3 cases

Siletz Anglers Assn. v. ODFW, 336 Or. App. 272 (Or. Ct. App. 2024).

— Or. Rev. Stat. § 183.400(4) — 89 cases

Planned Parenthood Ass'n v. Dep't of Human Resources, 687 P.2d 785 (Or. 1984).

Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016). “Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals.”

Clark v. Schumacher, 795 P.2d 1093 (Or. Ct. App. 1990).

— Or. Rev. Stat. § 183.400(4)(a) — 23 cases

Planned Parenthood Ass'n v. Dep't of Human Resources, 687 P.2d 785 (Or. 1984).

Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351 (Or. 1995). “The standard is described in Planned Parenthood, which involved a rule challenge brought under ORS 183.400. This court's discussion of statutory authority in that context is pertinent in the present contested case proceeding, because Employer's argument is, in effect, that the…”

Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016). “Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals.”

Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).

— Or. Rev. Stat. § 183.400(4)(b) — 70 cases

Nay v. Dep't of Human Servs., 385 P.3d 1001 (Or. 2016). “Pursuant to ORS 183.400, petitioner Tim Nay sought judicial review of those rule amendments in the Court of Appeals.”

Pulito v. Bd. of Nursing, 468 P.3d 401 (Or. 2020).

Don't Waste Oregon Comm. v. Energy Facility Siting Council, 881 P.2d 119 (Or. 1994).

Springfield Educ. Ass'n v. Springfield Sch. Dist. No. 19, 621 P.2d 547 (Or. 1980).

— Or. Rev. Stat. § 183.400(4)(c) — 33 cases

Friends of the Columbia Gorge v. Energy Facility Siting Council, 446 P.3d 53 (Or. 2019).

Smith v. Bd. of Parole & Post-Prison Supervision, 284 P.3d 1150 (Or. Ct. App. 2012).

Gilliam Cnty. v. Dep't of Env't Quality, 849 P.2d 500 (Or. 1993).

AFSCME Local 2623 v. Dep't of Corr., 843 P.2d 409 (Or. 1992).

— Or. Rev. Stat. § 183.400(6) — 5 cases

Oregon Cable Telecomm. Ass'n v. Dep't of Revenue, 240 P.3d 1122 (Or. Ct. App. 2010).

Byers v. Dept. of Corr. (A174403), 508 P.3d 597 (Or. Ct. App. 2022).

Kasch's Garden Centers & Nurseries v. Dep't of Agric., 736 P.2d 609 (Or. Ct. App. 1987).

Weyerhaeuser Co. v. Emp. Div., 804 P.2d 1183 (Or. Ct. App. 1991).

State v. Schott, 760 P.2d 1342 (Or. Ct. App. 1988).

— Or. Rev. Stat. § 183.400(7) — 1 case

Schlip v. Oregon Fish & Wildlife Comm'n, 707 P.2d 606 (Or. Ct. App. 1985).

— Or. Rev. Stat. § 183.400(l) — 1 case

Smith v. Psychiatric Sec. Review Bd., 349 P.3d 569 (Or. Ct. App. 2015).

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.