Oregon Advisory Opinions January 01, 1996: OP 8239

Advisory Opinion Text

No. 8239 April 3, 1996 Mr. Richard D. Gibson Fire Prevention Director Department of Forestry This opinion relates to the authority of police and fire officials to order mandatory evacuation of private property when a fire on forestland presents an imminent threat to human safety. The opinion does not concern public property for which ORS 131.705 to 131.735 provide unequivocal authority to order evacuation. FIRST QUESTION PRESENTED

Is there any existing authority that would authorize state, county or city police or fire officials to order the mandatory evacuation of an area due to an imminent threat of fire causing human death or injury?

ANSWER GIVEN

Yes. If the Governor declares an emergency under ORS 401.055, the Governor may specifically order evacuation of persons from the area covered by the order. Under "home rule" provisions of the Oregon Constitution, local governments also may adopt specific ordinances ordering mandatory evacuation of an area in a fire emergency. Sheriffs or state or local police officers may carry out the Governor's orders or those authorized by local ordinances. Fire officials and firefighters would have authority to enforce the Governor's order or an emergency evacuation ordinance only if expressly authorized to do so by the order or ordinance.

SECOND QUESTION PRESENTED

Do any constitutional guarantees prevent such orders or ordinances?

ANSWER GIVEN

No. Protecting public health and safety is a fundamental government interest which justifies summary action in emergencies. A Governor's order or local ordinance ordering evacuation is constitutional so long as the order or evacuation ordinance has a real and substantial relationship to publicsafety and contains an opportunity for prompt post-evacuation review of the action.

DISCUSSION

I. Authority to Order Evacuation A. Governor's Authority ORS chapter 401 establishes a comprehensive system for dealing with emergencies that threaten human safety or property loss. An emergency is "any man-made or natural event or circumstance causing or threatening loss of life, injury to person or property, human suffering or financial loss," and specifically includes fire. ORS 401.025(4). Primary responsibility for emergency planning and response rests with local governments. ORS 401.015(2). Nonetheless, the Governor may declare a state of emergency at the request of a county governing body or on the Governor's own determination that an emergency exists or is imminent. ORS 401.055. The Governor's powers during a state of emergency are extensive. They include "complete authority over all executive agencies of state government and the right to exercise, within the area designated by the proclamation, all police powers vested in the state by the Oregon Constitution," ORS 401.065(1); authority to order state agencies to use their personnel, equipment and facilities to "prevent or alleviate actual or threatened damage," ORS 401.065(3); authority to assume control of all state and local police and law enforcement activities in the affected area, ORS 401.115(2); authority to "[r]equire the aidand assistance of any state or other public or quasi-public agencies," ORS 401.115(5); and authority to "[a]ssume complete control of all emergency operations in the area specified in a proclamation of a state of emergency * * *, direct all rescue and salvage work and do all things deemed advisable and necessary to alleviate the immediate conditions." ORS 401.115(1) (emphasis added).

In a 1950 Attorney General opinion, this office interpreted statutory language identical to that emphasized above, concluding that the provision granted sufficiently broad powers to enable the Governor to cope with any condition that may arise in the emergency area, including the power to order the evacuation of any person from an area covered by the emergency declaration. 24 Op Atty Gen 446, 447 (1950). We see no reason to alter that opinion.

Among the powers the governor has during a declared emergency is the power to "effectuate the purposes of ORS 410.015 to 401.105, 401.260 to 401.325 and 401.355 to 401.580." ORS 401.065(1). These purposes include providing "emergency services," see, e.g., ORS 401.035, which include "those measures defined as 'civil defense' in section 3 of the Act of January 12, 1951, P.L. 81-920 (50 U.S.C. 2252)." ORS 401.025(10). Such civil defense measures include the evacuation of civilian populations during natural disasters. Interpreting the Governor's power to include the power to order evacuation from areas covered by an emergency declaration also is consistent with long­standing legal principles concerning emergency governmental action. Govern­ment authority to act summarily to protect public health and safety in emergency situations is well settled in anglo-American law. Uncontrolled fire has long been recognized as a serious threat to public safety, justifying even the summary destruction of real or personal property.

At common law everyone had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of fire, and there was no responsibility on the part of such destroyer, and no remedy for the owner.

Bowditch v. Boston, 101 US 16, 25 L Ed 980 (1879) (discussing city's authority to destroy building in fire emergency). See also 14 ALR 2d 73. If the government has authority to summarily destroy real or personal property to prevent the spread of fire, it surely has the authority to act less intrusively, ordering persons to evacuate an area in order to protect public safety and allow firefighters to fight the fire's spread. Cf. Miller v. Campbell County, Wyo., 722 F Supp 687, 692-93 (D Wyo 1989), aff'd 945 F2d 348 (10th Cir 1991) (local government has delegated authority to order evacuation of neighborhood threatened by lethal gases).

B. Local Government Authority

Counties and cities are political subdivisions of state government. Except as provided in the Oregon Constitution, they derive their powers from the legislature. Powell Grove Cem. v. Multnomah Co., 228 Or 597, 365 P2d 1058 (1961). Home rule provisions of the Oregon Constitution and the legislative policy expressed in ORS 401.015(2) provide counties and cities with authority broad enough to adopt ordinances ordering evacuation of an area if a fire threatens public safety.

Under home rule provisions of the Oregon Constitution, counties may adopt charters that provide the county with broad legislative authority over matters of county concern. Or Const Art VI, Sec. 10. Non-home rule counties have similar authority under ORS 203.035. 36 Op Atty Gen 1070, 1071 (1974). Cities derive their legislative power from home rule provisions in Article XI, section 2, of the Oregon Constitution[8] and ORS 221.926.[9] Emergencies that present a threat to local public safety are unquestionably matters of local concern. Under home rule provisions, cities and counties may adopt ordinances addressing public safety concerns so long as the ordinances do not conflict with state statutes governing the same subject. See Cove Lodge, v. Harris, 134 Or 566, 572, 294 P 355 (1930); Rose v. Port of Portland, 82 Or 541, 571, 162 P 498 (1917); State ex rel Haley v. City ofTroutdale, 281 Or 203, 576 P2d 1238 (1978). The essential test for determining whether a conflict exists is "whether the local rule is 'incompatible with the [state's] legislative policy, either because both cannot operate concurrently or because the legislature meant its law to be exclusive.'" City of Portland v. Dollarhide, 300 Or 490, 501, 714 P2d 220 (1986) (quoting La Grande/Astoria v. PERB, 281 Or 137, 148, 576 P2d 1204, adhered to 284 Or 173, 586 P2d 765 (1978)).

Applying this test, we conclude that local governments have authority to adopt ordinances ordering persons to evacuate an area threatened by fire. As discussed above, protection of health and safety in emergencies is a fundamen­tal government function that justifies summary action, including ordering persons to evacuate their property. The general legislative authority granted to local governments under Article VI, section 10, and Article XI, section 2, of the Oregon Constitution and under ORS 203.035 and 221.926 is broad enough to permit ordinances carrying out this fundamental function. This authority does not conflict with any state statute concerning emergencies. To the contrary, it is consistent with the legislative policy under ORS 401.015(2), which expressly places primary responsibility for emergency planning and response with local governments. Ordinances ordering the evacuation of persons from an area during an emergency in order to protect life or property during the emergency are consistent with carrying out that responsibility. Cf. ORS 401.515(4) (emergency service workers are immune from liability for carrying out emergency services under local ordinances).

C. Authority of Police and Fire Officials In the 1950 Attorney General opinion cited above, this office stated "that neither the sheriff or any other officer of a political subdivision of this state" has independent authority to order evacuation of an area threatened by an emergency condition. 24 Op Atty Gen at 447. We concluded, however, that they "may * * * execute orders or process issued by the governor for the mandatory evacuation of such threatened area." Id. We adhere to that conclusion and extend it to apply to peace officers executing local government evacuation orders as well.

Peace officers in the State of Oregon have authority to arrest persons for the violation of state criminal law, ORS 133.235; to issue citations in lieu ofarrest, ORS 133.055; and to perform community caretaking functions, ORS 133.033(1). "Community caretaking functions" are "any lawful acts that are inherent in the duty of the peace officer to serve and protect the public." ORS 133.033(2). The chief function inherent in a peace officer's duty is to enforce local and state law. See 16A McQuillin, The Law of Municipal Corpora­tions Sec. 45.15 (3d ed 1992) (duties of local police officers); 70 Am Jur Sheriffs, Police and Constables Sec. 46 (1987) (sheriffs). Sheriffs and state and local police officers have authority under this inherent function to enforce the Governor's evacuation order, or a local ordinance ordering evacuation, by requiring persons to evacuate the area covered by the order or evacuation ordinance, issuing citations or arresting persons who disobey the order.

Fire officials or firefighters, however, have no similar inherent or statutory authority. Forest fire wardens have peace officer authority, but the authority only allows wardens to enforce violations of ORS chapter 477. ORS 477.365(l)(d). The fire wardens' authority as peace officers does not include enforcing a Governor's evacuation order issued under ORS chapter 401 or a local evacuation ordinance issued under home rule provisions of the Oregon Constitution.

The scope of local firefighters' authority is governed by local ordinance. Local ordinances may give authority to firefighters to enforce local evacuation ordinances. Otherwise, local firefighters have no such enforcement authority. Given the breadth of the Governor's emergency authority under ORS chapter 401, the Governor also may specifically authorize forest fire wardens, rural district firefighters and local firefighters to enforce the Governor's orders during a declared emergency. Cf. 24 Op Atty Gen 446.

II. Constitutionality of Evacuation Orders As discussed above, courts have long recognized the government's need to use summary action in emergency situations to protect public health and safety. The most common constitutional challenge to these summary actions is that they violate due process guarantees. Courts generally have rejected theseclaims. See, e.g., Hodel v. Virginia Surface Min. & Reel. Assn., 452 US 264, 300, 101 S Ct 2352, 69 L Ed2d 1 (1981) and cases cited therein; 14 ALR 2d 73. The cases are instructive, however, in illustrating what constitutional requirements cabin a government's summary emergency action. For purposes of your question, the lesson of the cases is that so long as emergency evacuation orders and ordinances are reasonably based on a substantial need to protect public safety and are crafted to provide an opportunity for prompt post-evacuation review, they should pass constitutional muster.

The Due Process clause of the Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty or property without due process of law." This protection has two parts-substantive and procedural. The former guarantees that government action will not be "clearly arbitrary" or "unreasonable, having no substantial relation to the public health, safety, morals, or general welfare." Euclid v. Ambler Realty Co., 272 US 365, 395, 47 S Ct 114, 121, 71 L Ed 303, 314 (1926). The latter requirement ensures that some minimal procedural safeguards are afforded, so that an individual has an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 US 545, 552, 85 S Ct 1187, 14 L Ed2d 62, 66 (1965) (cited with approval in State ex rel Schrunk v. Metz, 125 Or App 405, 416, 867 P2d 503 (1993). We believe that the emergency evacuation orders and ordinances discussed above can meet both requirements.

A. Substantive Due Process

Three recent federal court decisions discuss substantive due process guarantees in the context of emergency action. Armendariz v. Penman, 75 F3d 1311 (1996) (emergency closure of low-income housing unit); Sinaloa Lake Owners Ass n. v. City of Simi Valley, 882 F2d 1398 (9th Cir 1989) (as amended), cert den 494 US 1016, 110 S Ct 1317, 108 L Ed2d 493 (1990) (order to breach private dam, destroying private lake); Miller v. Campbell County, Wyo., 722 F Supp at 695-96 (evacuation order keeping persons from their property for a brief period). The court in Sinaloa Lake found a substantive due process violation; the court in Miller did not. The third case, Armendariz, holds that a substantive due process claim does not arise in an emergency action situation when plaintiffs have other constitutional remedies available to protect their interests, e.g., remedies allowing compensation for taking private property for public use.

In Sinaloa Lake, the Ninth Circuit concluded that plaintiffs may prevail on a substantive due process claim if they can show a "malicious, irrational and plainly arbitrary" government action. 882 F2d at 1409. The court relied on the following test to determine whether the constitutional line had been crossed:

[W]e will look to such factors as the need for the governmental action in question, the relationship between the need and the action, the extent of the harm inflicted, and whether the action was taken in a good faith effort or for the purpose of causing harm.

Id. (citing Rutherford v. City of Berkeley, 780 F2d 1444, 1446 (9th Cir 1986). The court concluded:

To be sure, governmental entities must have much latitude in carrying out their police power responsibilities; mere errors of judgment, or actions that are mistaken or misguided, do not violate due process. But malicious, irrational and plainly arbitrary actions are not within the legitimate purview of the state's power.

Id.

In Miller, the federal district court reached a similar conclusion, stating:

To prevail on a substantive due process claim, the plaintiff must show that the action in ordering an evacuation of his property was "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare."

722 F Supp at 695, citing Euclid, 272 US at 395.

The recent Ninth Circuit decision in Armendariz, however, holds that substantive due process claims do not lie in cases arising out of governmental emergency action. At issue in Armendariz was whether a plaintiff could bring a substantive due process claim against the government for taking private property as an alternative to litigating a takings claim under the Takings Clause of the Fifth Amendment to the United States Constitution. Plaintiffs in thecase were owners of low-income housing in San Bernardino, California. The city closed the housing during an emergency health and safety sweep authorized by the Municipal Code. The Code provided city officials with summary authority to secure from entry any structure in [their] discretion [they] determine to be immediately dangerous or hazardous, or in any manner injurious to public health or safety.

75 F3d at 1314 (quoting City of San Bernardino, Municipal Code (SBMC), ch 15.28.140). The plaintiffs did not seek compensation from the city under the Takings Clause. Rather, they brought civil rights claims in federal court alleging, among other things, violations of procedural and substantive due process. The court held that because the type of government action that plaintiffs alleged is the type of conduct regulated by the Takings Clause of the Fifth Amendment, their substantive due process claim was precluded. Id. at 1324. The court specifically overruled Sinaloa Lake to the extent Sinaloa Lake suggests that a substantive due process claim offers an alternative to seeking compensation from the government under Takings Clause provisions. Id. at 1326.

Emergency evacuation orders may give rise to temporary takings claims under the takings clauses of the United States or Oregon Constitutions. See discussion, below, at note 22. If they do, Armendariz bars any substantive due process claim. If no takings claim is involved and if the Governor's evacuation orders and local evacuation ordinances are reasonably and in good faith based on a conclusion that circumstances meet the definition of an emergency set out in ORS 401.025(4) and are tailored to meet the immediate danger, they are unlikely to violate substantive due process guarantees under the Sinaloa Lake or Miller tests. See Miller, 945 F2d at 354 (county had "an obvious need to act with considerable dispach [sic] * * * [and its actions were] reasonable and measured, with appropriate concern for the situation and the interests of all involved").

B. Procedural Due Process

Hodel v. Virginia Surface Mining, 452 US 264, sets the modern standard for procedural due process in cases involving summary government action. The case involved a challenge to the Surface Mining Control and Reclamation Act, which, among other provisions, allowed the Secretary of the Interior to immediately order a total or partial cessation of mining operations when an inspection showed that the operation violated the Act and that the operation either posed an immediate health or safety danger or could reasonably beexpected to cause imminent and significant environmental damage. Id. at 298. The federal district court held that this provision violated the procedural due process protection of the Fifth Amendment to the United States Constitution because it did not provide "sufficiently objective criteria for summary administrative action." Id. at 299. The United States Supreme Court disagreed. The Court acknowledged that procedural due process ordinarily requires a hearing prior to deprivation of a significant property interest. Id. However, it also recognized the long line of cases authorizing summary action in emergency situations. Id. at 300. Applying that case law to the cessation order provision of the Act, the Court reasoned:

Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is "[o]ne of the oldest examples" of permissible summary action. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect public health and safety. This is precisely the type of emergency situation in which this Court has found summary administrative action justified.

Id. at 300-01 (citations omitted).

The Court found the statute's definition of "imminent danger to the health and safety of the public," and the Secretary's definition of "significant, imminent environmental harm," more than sufficient to describe the type ofdanger to which a government may respond summarily. In reaching its conclusion that the provision did not violate procedural due process require­ments, the Court also emphasized the importance of "prompt and adequate post-deprivation administrative hearings and an opportunity for judicial review." Id. at 301-03.

We have no difficulty concluding that the definition of emergency in ORS 401.025(4), which triggers the authority to order an emergency evacuation, sets sufficient standards to authorize summary evacuation without pre-evacuation hearings. The issue of post-action hearing and review is more problematic because ORS chapter 401 does not provide for any opportunity for hearings concerning emergency decisions. Nonetheless, for the following reasons, we conclude that this constitutional requirement is satisfied if the order or ordinance provides an opportunity for a prompt post-evacuation hearing.

In State ex rel Schrunk v. Metz, the Oregon Court of Appeals recently considered a state statute and city ordinance authorizing summary seizure of real and personal property used in illegal gambling activity. 125 Or App at 417-18. The state statute authorized the city forfeiture ordinance. Neither the statute nor the ordinance required any post-seizure hearing or judicial review. Reasoning that "no reason appears why the city would be overly burdened or any public interest disserved by providing an immediate post-seizure probable cause hearing" at which the claimant may contest the validity of the seizure order, the court held that the city's failure to provide such hearing violated procedural guarantees of the Fourteenth Amendment.

This analysis suggests that the authorizing statute need not contain hearing provisions so long as the implementing ordinance or order provides an opportunity for hearing. Therefore, we conclude that in order to meet procedural due process requirements, the Governor's order or local ordinance ordering emergency evacuation must include provisions allowing prompt post-evacuation hearings to review the action. The issue the hearing must resolve is whether the Governor or the local government abused discretion in ordering the evacuation. Resolution of thatissue turns on whether an emergency threatening public safety existed or was imminent when the evacuation order was issued. Even if the hearing determines that discretion was abused, that abuse is not a violation of due process guarantees. "The relevant [due process] inquiry is not whether * * * [an] order should have been issued in a particular case, but whether the statutory procedure itself is incapable of affording due process." Hodel, 452 US at 302. As we have said, the standards for declaring an emergency under ORS chapter 401 and the opportunity for a prompt post-order hearing provide adequate due process under the Hodel analysis.

Finally, we emphasize the importance of providing a prompt opportunity for hearing. The opportunity for a hearing at "a meaningful time" is fundamen­tal to affording due process. See Armstrong v. Manzo, 380 US at 552. In Metz, the Court of Appeals underscored the importance of prompt hearings in helping to minimize the risk of erroneous decisions. 125 Or App at 416-17. If the government decision at issue has arguably deprived a person of his or her property, a prompt opportunity to review the decision protects both the person and the government from an erroneous decision. The person is protected because his or her property will be promptly returned if the decision is found erroneous. The government is protected because a prompt reversal of an erroneous decision will limit the government's liability for compensating the person for any temporary taking of the person's property resulting from the decision. THEODORE R. KULONGOSKI Attorney General TRK: DC A: MLB: A V

ORS 131.705 to 131.735 authorize public officials to exclude persons from public property, including public lands when the Governor proclaims an emergency based on a finding that a "clear and present danger" of human injury or property damage exists, or when a person's presence denies, or causes substantial interference with, ingress to or egress from public property. ORS 131.715. "Public officials" include heads of state agencies, boards and commissions, heads of political subdivisions or their designates. ORS 131.705(2). These statutes allow police to require persons to leave public buildings or land.

Similar statutes have been in effect since 1949. See Or Laws 1949, chs 434 and 574.

ORS 401.025(4) defines an "emergency" as including:

[A]ny man-made or natural event or circumstance causing or threatening loss of life, injury to person or property, human suffering or financial loss, and includes, but is not limited to, fire, explosion, flood, severe weather, drought, earthquake, volcanic activity, spills or releases of oil or hazardous material as defined in ORS 466.605, contamination, utility or transportation emergencies, disease, blight, infestation, crisis influx of migrants unmanageable by the county, civil disturbance, riot, sabotage and war.

Writing in Dennehy v. Dept. of Rev., 305 Or 595, 604 n 3, 756 P2d 13 (1988), Justice Linde disapproved the use of the term "police power." He described it as nothing other than "the general plenary power to legislate." Nonetheless, the Legislature chose the term to describe the Governor's emergency powers, and it is commonly used, useful shorthand for describing the general power to enact legislation protecting public health and safety.

For purposes of this opinion, we need not decide what the limits of the Governor's authority are under ORS 401.065(1).

Section 3 of the Act of January 12, 1951, provides in pertinent part:

(c) The term "civil defense" means all those activities and measures designed or undertaken (1) to minimize the effects upon the civilian population caused or which would be caused * * * by a natural disaster, (2) to deal with the immediate emergency conditions which would be created by any * * * natural disaster, and (3) to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by any * * * natural disaster. Such term shall include, but shall not be limited to, (A) measures to be taken in preparation for anticipated * * * natural disaster (including the establishment of appropriate organizations, operational plans, and supporting agreements; * * * the construction or preparation of shelters, shelter areas, and control centers; and, when appropriate, the non-military evacuation of civil populations); (B) measures to be taken during * * * natural disaster (including * * * the evacuation of personnel to shelter areas; the control of traffic and panic * * * ); and (C) measures to be taken following * * * natural disaster (including activities for fire fighting; * * * emergency welfare measures; ***)[.] 50 USCA Sec. 2252 (West 1991). Although this federal statutory provision was repealed in 1994, its definition of "civil defense" remains one of the definitional standards used to define emergency services under Oregon law.

Article VI, section 10, of the Oregon Constitution provides in relevant part:

The Legislative Assembly shall provide by law a method whereby the legal voters of any county, by majority vote of such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter. A county charter may provide for the exercise by the county of authority over matters of county concern.

ORS 203.035 provides in relevant part:

(1) * * * the governing body or the electors of a county may by ordinance exercise authority within the county over matters of county concern, to the fullest extent allowed by Constitutions and laws of the United States and of this (continued...) (... continued)

state, as fully as if each particular power comprised in that general authority were specifically listed in ORS 203.030 to 203.075.

(2) The power granted by this section is in addition to other grants of power to counties, shall not be construed to limit or qualify any such grant and shall be liberally construed, to the end that counties have all powers over matters of county concern that it is possible for them to have under the Constitutions and laws of the United States and of this state.

[8] Article XI, section 2, of the Oregon Constitution provides in relevant part:

The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The 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 * * *

[9] ORS 221.926 provides:

Every city organized under sections 1 to 6, pages 119 to 123, Oregon Laws 1893, may pass any and all necessary ordinances for the purpose of carrying into force and effect any provisions of ORS 221.901 to 221.928 or any other laws concerning city government.

Under this policy, the state cannot assume authority for responding to an emergency "unless the appropriate response is beyond the capability of the city and county in which it occurs, the city or county fails to act, or the emergency involves two or more counties." ORS 401.015(2). Whether this provision places restrictions on the Governor's authority to declare an emergency under ORS 401.055 is a question we need not answer here.

Because local ordinances and Governor's evacuation orders may take many different forms, we also decline to speculate about what differences in particular local ordinances and governor's orders might prevent them from operating concurrently. Depending on whether the ordinance and order are civil or criminal in nature and depending on the particular provisions of the ordinance and order, the order may displace the ordinance. See generally City ofRoseburg v. Roseburg City Firefighters, 292 Or 266, 639 P2d 90 (1981); City of Portland v. Dollarhide, 300 Or 490, 714 P2d 220 (1986) (test of whether ordinance and statute conflict is whether ordinance permits an act the statute prohibits or prohibits an act the statute permits); and City of Portland v. Jackson, 316 Or 143, 850 P2d 1093 (1993) (criminal statute will displace criminal ordinance covering same conduct if ordinance prohibits something permitted by statute). If a local ordinance is inconsistent with the governor's order, the order prevails and the ordinance is inoperative. ORS 401.095(1).

The context of this conclusion shows that the reference to "other officer[s] of a political subdivision" means other peace officers. The opinion in no way suggests that the reference is to county commissions or to city councils. As discussed above, city councils and county commissions have authority to adopt ordinances authorizing evacuation orders.

"Peace officers" include sheriffs, municipal police officers and the Oregon State Police. ORS 133.005(3).

The duties and authorities of rural fire district firefighters are governed by ORS chapter 478. The chapter does not give rural district firefighters any peace officer authority.

In several cases where the government summarily destroyed property, plaintiffs alleged that the action deprived them of property without just compensation in violation of the Fifth Amendment to the United States Constitution or Article I, section 18, of the Oregon Constitution. See, e.g., Miller v. Schoene, 276 US 272, 48 S Ct 246, 72 L Ed 568 (1928) (diseased trees destroyed—Fifth Amendment); Shaffer v. City of Winston, 33 Or App 391, 576 P2d 823 (1978) (destruction of buildings-Art I, Sec. 18)); Willard v. City of Eugene, 25 Or App 491, 550 P2d 457 (1976) (same). None of these cases found a constitutional violation; all concluded that the destruction of property to abate a nuisance or protect the public health or safety from a significant threat did not amount to an appropriation of private property to public use within the meaning of the just compensa­tion clauses of the federal or state constitutions.

If physical destruction of property does not constitute a taking for which compen­sation is required, we are hard pressed to conclude that temporarily excluding a person from his or her property during a fire emergency requires compensation. See Berman Corp v. State Hwy. Comm., 24 Or App 813, 547 P2d 192 (1976) (temporary interference with public access to a business is not a taking); Cf Dodd v. Hood River County, 317 Or 172, 855 P2d 608 (1993) (regulatory restriction on property use is not a taking when some substantial beneficial use remains).

The Oregon Constitution has no identical provision.

The Takings Clause of the Fifth Amendment to the United States Constitution provides, "nor shall private property be taken for public use, without just compensation." Article I, section 18, of the Oregon Constitution contains a similar provision:

Private property shall not be taken for public use * * * without just compen­sation * * *."

The text of ORS 401.025(4) is set out in note 3, above.

The Fifth Amendment to the United States Constitution imposes the same requirements on federal action that the Fourteenth Amendment imposes on state action.

The danger was described as one that could:

[Reasonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement.

452 US 301 (quoting 30 USC Sec. 1291(8) (1976 ed, Supp III)).

The regulations describe the harm as follows:

(a) An environmental harm is any adverse impact on land, air, or water resources, which resources include, but are not limited to, plant and animal life.

(b) An environmental harm is imminent, if a condition, practice, or violation exists which—(1) Is causing such harm, or, (2) May reasonably be expected to cause such harm at any time before the end of the reasonable abatement time that would be set under section 521(a)(3) of the Act.

(c) An environmental harm is significant if that harm is appreciable and not immediately reparable.

452 US 301-02 n 45 (quoting 30 CFR Sec. 700.5 and 701.5 (1980)).

The fact that ORS chapter 401 does not expressly provide for judicial review of the orders or ordinances should not be fatal to their constitutionality under procedural due process analysis. This is because no government officials, including the Governor, may avoid judicial review of actions not authorized by law. Oregon courts always have jurisdiction to review whether an official's action complies with statutory or constitutional requirements. Cf. Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 477-79, 753 P2d 939 (1988) (court may review Governor's determination that veto was within the Governor's constitutional authority). Therefore, regardless of whether ORS chapter 401 expressly provides for judicial review of emergency evacuation orders, such review is available.

Governments bear the risk of erroneous summary action. If either the Governor or a local government abuses discretion in ordering an evacuation, and as a result owners are temporarily deprived of the use of their property, the owners may have a claim for temporary taking of their property. Cf. 6A McQuillin, supra, at Sec. 24.27 (discussing erroneous summary property destruction).