Mining Impacts to the Human and Natural Environments

A compilation of resources and issues

Geologist free speech in Oregon: The Reed case

Comments and a guide to documents by Mark Reed:

      I testified to my county commission on geologic issues pertaining to a application to mine sand and gravel beneath prime farmland in the Willamette Valley, Oregon.  The gravel company filed a 49-count complaint with the Oregon State Board of Geologist Examiners claiming that I needed a license if I was going to address geologic issues in a public proceeding.  The licensing board agreed and sought to silence me by offering me a “consent order” requiring that I cease public testimony unless I obtained a license.  I refused to sign.  The board refused to drop the case, so with tremendous legal assistance, I sued, won, and obtained a repeal of the offending administrative rule.  However, it was still apparent that the Board did not understand the point, so, with essential help from many volunteers, we passed a law in the legislature to assure citizen free speech on geologic matters.  The events outlined above are laid out in PDF documents available below.

      In the course of my ordeal, I learned of two other Oregon university geologists who had been denied their right to speak in public proceedings following complaints to the Board from developers on the Oregon coast.  From their experience and mine, plus other cases in California, it became clear that the mining industry and other developers have attempted, and succeeded repeatedly, in using geologist licensing rules to squelch free speech.  The geologist licensing laws were put in place, supposedly, to protect the general public against unscrupulous and  incompetent geologists.  Instead, business interests are twisting geologist licensing to protect unscrupulous and incompetent geologists against legitimate criticism from the general public.  This is a sorry state of affairs. 

      The constitutional basis for any citizen’s right to speak in a public proceeding is one of the most basic in our system of government, as explained by Law Professor Garrett Epps in an opinion included below.  The use of licensing laws to deny citizen free speech and to deny the right to petition the Government for redress of grievances weakens land use decision-making by denying officials the opportunity to hear both sides of technical science-based arguments that are part of modern land use decisions.  Such infringement of citizen’s rights must stop.  I hope the materials included below will help others defend their right to speak. 

Documents pertaining to the 2002-2003 geologists’ free speech case

of Mark Reed, Eugene, Oregon,

      The series of PDF files accompanying this list include key documents in the case of Mark Reed vs. the Oregon State Board of Geologist Examiners, a case brought on Reed’s behalf by Eugene Attorneys Art Johnson, Garrett Epps, Derek Johnson and Marilyn Heiken. 

      Additional documents address the aftermath of that case: passing a bill in the Oregon Legislature to protect the free speech rights of citizens who testify in public proceedings on matters pertaining to geology.  The gist of the original case and the legislation are addressed in five of the newspaper stories and editorials included here in PDF files 9 and 10.

PDF files

 1 Eugene Sand complaint ltr to osbge.pdf: an OCR version of the original 49-count complaint submitted by Eugene Sand and Gravel to the Oregon State Board of Geologist Examiners (OSBGE). 7 pages.

2 Reed response to OSBGE on ESG complaint3.pdf: Written response by Mark Reed to the 49-count complaint.  The free speech and other arguments in this response were rejected by the OSBGE “compliance” review committee.  11 pages (appendices to original not included here).

3 Consent order (refused by Reed).pdf: Consent order presented by OSBGE in which Reed would agree not to testify.  Reed refused to sign.  1page.

4 Reed OSBGE motion JCLC.pdf: Legal brief: Motion for order to show cause why preliminary injunction should not be entered in Mark Reed vs. OSBGE.  This document presents the free speech case to a judge as part of a move to stop OSBGE from bringing charges against Reed.  The argument states that “insofar as it attempts to regulate and punish uncompensated, individual political speech by a citizen on matters of public interest before a government body, OSBGE’s action is in violation of law because (1) it is ultra vires and (2) it violates Article I §§8 and 26 of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution. 20 pages.

5 Reed OSBGE order JCLC.pdf: Legal Brief: Order setting show cause hearing in Mark Reed vs. OSBGE, signed by Judge Mary Ann Bearden, ordering defendants to appear in court on 26 November 2002 to answer to the motion.  Judge Bearden states “the court finds that Plaintiff is likely entitled to the relief sought . . . as applied to the facts in this case, to violate the constitutional rights of Plaintiff, and that if the Defendants are not immediately restrained from enforcing . . . Reed will continue to suffer irreparable injury, loss, and damage from being denied his right to express himself freely and to provide public testimony on geologic issues of public concern.” 2 pages.     

6 Reed OSBGE complaint JCLC.pdf: Legal Brief: Complaint in Mark Reed vs. OSBGE, “an action for declaratory and injunctive relief brought pursuant to Article I, section 8 (Free Speech) and section 26 (Right of Petition) of the Oregon Constitution and 42 USC §1983 and 28 USC §220 and 2202 and the First and Fourteenth Amendments of the United States Constitution.”  A brief note at the end states that in an emergency meeting of the OSBGE they (1) dismissed all claims against Mark Reed, (2) repealed the OAR (PDF file 7) from which they claimed authority to restrict testimony, and (3) stated they would send a letter to Reed (PDF file 8).  9 pages.

7 Repealed OAR, unconstitutional.pdf: Oregon Administrative Rule 809-050-0030 repealed by the OSBGE on 21 November 2003. 1 page.

8 OSBGE Knight ltr to Reed on Board action.pdf: Letter from OSBGE to Mark Reed (referenced in PDF file 6) in which Board Administrator Knight states that the OSBGE rescinded the offending OAR, and further states the following:

      “. . . the Board concluded that in this unique instance, the First Amendment rights of free speech and the associated ability to write freely on any subject made it difficult to determine whether a violation of the Geology statute had occurred. Due to the complexity of the legal issues and the rules in place at the time you performed the work in question, the Board chose not to pursue this case. 

      “It is important for you to understand that the definition of the public practice of geology . . . ‘includes consultation, investigation, surveys, evaluation, planning, mapping, and inspection of geological work, in which the performance is related to public welfare or safeguarding of life, health, property and the environment’.”

      Reed and his legal advisors interpreted the preceding as indicating that the OSBGE did not understand the constitutional free speech implications of the suit they had just lost, so we decided to take it to the legislature.    2 pages.

9 Newspaper,Reed testimony 2a.pdf: Four news and editorial “clippings” on the OSBGE decision, published in The Register Guard and the Tri-County News.

10 New Law, editorial opinion geologist free speech, Epps RG col 3Jun03.pdf: Editorial page column by attorney and constitutional law professor Garrett Epps on a pending bill in the Oregon legislature to clarify geologist free speech.  2 pages.

11 New Law, Oregon HB2893 enrolled.pdf: Free speech bill, ultimately passed by the Oregon legislature and signed by Governor Kulongoski.  3 pages.

12 Garrett Epps on HB2893.pdf   Opinion by Constitutional Law Professor Garrett Epps on the constitutionality of limiting citizen speech on the subject of geology in public proceedings.  This opinion was instrumental in securing the passage of the new legislation.

13 Board Position opposing HB2893.pdf: Written statement from the OSBGE distributed to legislators expressing opposition to the free speech bill.  1 page.

14 New Law passed & signed by Gov, House Bill 2893 Geologist free speech 03 Oregon Legislature, history.pdf: Step-by-step progress and votes on HB 2893 in the legislature.  1 page.

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