24 October 21, 2026 No. 1009
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
Ka’ila FARRELL-SMITH,
Rowena Jackson, Sarah Westover, and
Rosemary Francis Eatherington,
Plaintiffs-Appellants,
and
ROGUE CLIMATE
and 350Eug (“350 Eugene”),
Intervenor Plaintiffs-Appellants,
v.
OREGON DEPARTMENT OF JUSTICE;
Dan Rayfield, in his official capacity as the
Attorney General of the State of Oregon;
and Michael Slauson, in his official capacity as
Chief Counsel of the Criminal Justice Division of the
Oregon Department of Justice,
Defendants-Respondents.
Marion County Circuit Court
21CV47809; A187251 (Control), A187250
Lindsay R. Partridge, Judge.
Argued and submitted June 30, 2026.
Tim Cunningham argued the cause for appellants. Also
on the opening brief were Davis Wright Tremaine LLP;
Marianne G. Dugan and Civil Liberties Defense Center;
Barry Friedman, Aaron Scherzer, Carly Margolis, The
Policing Project, and Washington Square Legal Services,
Inc., New York; and Jeffrey Rosenthal, Patrick Swiber, and
Cleary Gottlieb Steen & Hamilton LLP, New York. Also on
the reply brief were Davis Wright Tremaine LLP; Marianne
G. Dugan and Civil Liberties Defense Center; Barry
Friedman, Nancy Glass, Carly Margolis, and Washington
Square Legal Services, Inc., New York; and Jeffrey
Rosenthal, Patrick Swiber, and Cleary Gottlieb Steen &
Hamilton LLP, New York.
Cite as 354 Or App 24 (2026) 25
Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondents. Also on the brief were Dan
Rayfield, Attorney General, and Paul L. Smith, Solicitor
General.
Kelly Simon and ACLU Foundation of Oregon, Inc., and
Colin Hunter and Bradley Bernstein Sands LLP, filed the
brief amici curiae for the American Civil Liberties Union
of Oregon and Brennan Center for Justice at New York
University School of Law.
Timothy R. Volpert and Tim Volpert, P.C., filed the brief
amici curiae for Legal Scholars Jessica Bulman-Pozen,
Helen Hershkoff, Jonathan Marshfield, Jane Schacter,
Miriam Seifter, Robert F. Williams, Robert Yablon, and
Quinn Yeargain.
Edward A. Piper and Glenmorrie Law LLC, filed the
brief amicus curiae for the Cato Institute.
Before Egan, Presiding Judge, Jacquot, Judge, and
Armstrong, Senior Judge.
EGAN, P. J.
Reversed and remanded.
26 Farrell-Smith v. Dept. of Justice
EGAN, P. J.
In this consolidated appeal, four individual plaintiffs and two intervenor-plaintiffs (together, “plaintiffs”)
appeal a general judgment entered by the circuit court
dismissing with prejudice their claims for injunctive relief
and declaring that defendants—the Oregon Department
of Justice (ODOJ), the Attorney General, and the Chief
Counsel of ODOJ’s Criminal Justice Division—have authority to operate a domestic intelligence unit called the Oregon TITAN Fusion Center (“the fusion center”).
Since 2004, defendants have operated the Terrorism
Information Threat Analysis Network (TITAN) program,
which grew into what is now Oregon’s fusion center—the
Oregon TITAN Fusion Center—housed in the Criminal
Intelligence Unit of ODOJ’s Criminal Justice Division. The
fusion center is one node in a network of state-operated
domestic intelligence hubs across the country that were
developed by the United States Department of Homeland
Security to assist in assessing and anticipating terrorist
threats in the years following the 9/11 terrorist attacks.
Plaintiffs’ complaints allege that defendants operate the fusion center ultra vires—that is, exceeding the scope of ODOJ’s legal authority. They allege that the fusion center surveils and investigates activists and political actors based on their political and social views and without any nexus
to criminal activity, and that it does so absent statutory
authority or executive mandate.
The circuit court granted defendants’ motion for
judgment on the pleadings, entered judgment in defendants’
favor on all claims alleged by plaintiffs, and dismissed the
claims for injunctive relief with prejudice. Plaintiffs now
appeal.
We conclude that the trial court erred by granting
defendants’ motion because, when properly construed, the
complaint alleges that at least some of the fusion center’s
operations exceed the statutory authority that is granted to
ODOJ, and the statutory authority cited by defendants does
not conclusively demonstrate that plaintiffs cannot prevail
Cite as 354 Or App 24 (2026) 27
on their claims. Accordingly, we reverse and remand for further proceedings.
I. BACKGROUND
We state the facts as set forth in the complaint, liberally construing the allegations in plaintiffs’ favor. Kramer v. Conatser, 341 Or App 568, 571, 576 P3d 507 (2025).
A. Factual Allegations
Plaintiffs are environmental, political, indigenous
rights, and social justice advocates, and environmental
advocacy organizations, all of whom were involved in a campaign against the development of the Jordan Cove Liquified
Natural Gas Pipeline.1 The individual plaintiffs, as detailed below, initiated these proceedings by filing a complaint seeking declaratory and injunctive relief; intervenor-plaintiffs
later filed a complaint adopting the individual plaintiffs’
complaint in its entirety and likewise seeking declaratory
and injunctive relief.
Plaintiffs allege that fusion centers nationwide,
including Oregon’s, collect, analyze, retain, and distribute
data and threat-related information culled and gathered
from myriad sources, including social media, public records,
commercial databases, and reports from the public. Many
such fusion centers, including Oregon’s—in the words of an
ODOJ official—now serve an increased role in the “apprehension and prosecution of criminals engaged in common
crimes,” having adopted an “all crimes” and “all threats”
approach to their intelligence operations.
A core function of Oregon’s fusion center (and other
fusion centers nationwide) is to issue reports or bulletins—
based on its intelligence operations—about actors and
activities it deems to be threatening, including suspicious
1
According to the complaint, Plaintiffs Ka’ila Farrell-Smith—”an environmental and indigenous rights activist”—and Rowena Jackson—an “ambo (‘water’) protector”—are both “member[s] of the Klamath Tribes.” Plaintiff Sarah Westover “is a community organizer” and was an elected member of the Phoenix City Council in Phoenix, Oregon, from 2016 to 2020. Plaintiff Rosemary Francis Eatherington “is an environmental activist” and president of a nonprofit dedicated to ecological preservation and providing women access to nature.
Intervenor-plaintiffs are Rogue Climate and 350 Eugene, both 501(c)(3) nonprofit organizations working toward environmental and climate justice. 28 Farrell-Smith v. Dept. of Justice
activity reports (SARs) that indicate a perceived risk of
future terrorist or other criminal activity; threat assessments that report on potentially threatening incidents or
people; and safety bulletins, which are widely-distributed
notifications of potential safety concerns. Those reports are shared with federal, state, local, and tribal agencies, as well as with other public and private-sector entities, identifying individuals and organizations as potential terrorist or criminal threats. In their answer and on appeal, defendants do
not dispute that Oregon’s fusion center collects and disseminates information in that general manner.2
However, plaintiffs allege that Oregon’s fusion
center has “for years surveilled Plaintiffs based on their
political and social views, in violation of Plaintiffs’ rights as codified by ORS 181A.250.”3 They allege that fusion center personnel monitored their political advocacy activity;
coordinated surveillance of them; gathered and retained
information about their advocacy efforts in opposition to the pipeline; and included their names in SARs, threat assessment reports, safety bulletins, and other intelligence products, characterizing the protestors as potential terrorist or criminal threats. They did so, the complaint alleges, without identifying any evidence of criminal wrongdoing or even
a nexus to criminal activity.
More specifically, the complaint alleges that the
fusion center worked closely with the Coos County Sheriff’s
Office and Teneo, a public relations firm hired by the
2
In their answer, defendants explained that the fusion center “collect[s], analyz[es], and shar[es] information to assist in law enforcement,” and on appeal defendants similarly maintain that the fusion center “collect[s] information that is already publicly available or in government files” and transmits such “important information about suspicious activities or public safety” to other law-enforcement agencies. As we discuss more fully below, defendants argue that such information collection and dissemination functions “are well within the broad express and implied statutory duties and powers given to the Oregon Department of Justice in ORS Chapter 180.”
3
That statute povides:
“No law enforcement agency * * * may collect or maintain information
about the political, religious or social views, associations or activities of any
individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the
information is or may be involved in criminal conduct.”
Cite as 354 Or App 24 (2026) 29
pipeline developers, Pembina Pipeline Corporation, to monitor and counter the activities of the advocates who opposed
the development of the pipeline. The complaint alleges
that the fusion center facilitated the creation of a Jordan
Cove task force that monitored plaintiffs’ political advocacy activities and that the task force included a dedicated unit
within the Coos County Sheriff’s Office that was funded
by the pipeline company. The complaint points to an email
sent by a Coos County Sheriff Deputy to an analyst at the
fusion center, indicating that “as promised,” he was tracking the attendance at a “Rally and Public Hearing to Stop [the]
Jordan Cove [Liquified Natural Gas Pipeline],” despite an
acknowledged “lack of a criminal nexus.” The email named
Rogue Climate, one of the intervenor-plaintiffs, and also
stated that “most of the names” of individuals who indicated that they planned to attend the event on social media
“were recognized.” Similarly, after advocates interrupted a
Medford Chamber of Commerce meeting to denounce the
Chamber’s political action committee’s receipt of a donation
from Pembina, the fusion center indicated that it would put
the activity into an SAR, a type of document intended to
identify terrorist threats or other criminal activity. Finally, the complaint alleges that Teneo, the public relations firm,
encouraged the Pembina-funded Coos County Sheriff’s unit
to funnel all information about plaintiffs’ advocacy activities through the fusion center analysts copied on the email to
avoid Freedom of Information Act (FOIA) and public records
requirements.4
The complaint alleges that surveillance and the
issuance of threat reports regarding lawful political advocacy are part of a broader pattern of the fusion center’s operations. The complaint also alleges that it is difficult to get information regarding the fusion center’s activity. Plaintiffs allege that, being originally intended for national security
intelligence gathering, much of the activity of such centers is exempt from public records requests. Plaintiffs obtained the
information contained in the complaint following a related
4
Notably, on the merits, defendants do not seem to dispute those allegations but explain that the conduct was traceable to a single analyst, who was investigated following the 2019 publication of an article about the fusion center in The Guardian, was placed on administrative leave, and resigned.
30 Farrell-Smith v. Dept. of Justice
records request fulfilled by the Coos County Sheriff’s Office. The complaint alleges that ODOJ refused to comply with
a records request regarding the fusion center’s pipeline-related surveillance activity. According to plaintiffs, such
difficulty obtaining information about the fusion center’s
operations is not unique to plaintiffs. The complaint alleges that, in response to records requests by journalists seeking
information on the fusion center’s reports concerning other
political advocacy activity, including the Women’s March
and protests against federal executive orders on immigration, ODOJ responded that the fusion center “had located
responsive records,” but it declined to disclose the reports, citing an exemption for “criminal intelligence information.” In addition to operations related to the pipeline, the Women’s March, and other protests, the complaint alleges
that the fusion center used digital surveillance software to
physically locate and track the movements of social media
users posting the Black Lives Matter hashtag.
Plaintiffs allege that no statute expressly gives
ODOJ the authority to create and operate the fusion center;
the operation has not been mandated by an executive order
or other executive directive; and no regulations have been
promulgated in relation to the fusion center. The complaint
further alleges that, as a result of this lack of authorization, the fusion center freely targets constitutionally and statutorily protected activities in its intelligence operations—
including those protections provided by ORS 181A.250—
without meaningful guardrails or public scrutiny.
B. Plaintiffs’ Claims for Relief
Plaintiffs’ complaint seeks declaratory and injunctive relief, asking the court to declare that ODOJ operates
the fusion center ultra vires because it exceeds the scope
of authority granted to ODOJ by the Oregon Legislative
Assembly and “[a]ny action by Defendant agency or officers
exceeding the power conferred upon it by the legislature
is per se unlawful.” Plaintiffs requested (1) a declaration
that ODOJ is operating the fusion center ultra vires; (2) an
order enjoining ODOJ from their ultra vires operation of the
fusion center; (3) an order compelling the fusion center to
destroy and expunge all records related to plaintiffs that
Cite as 354 Or App 24 (2026) 31
were collected and retained in the course of ultra vires activities; (4) an award of costs and attorney fees; and (5) such
other relief as the court deemed just and equitable.
In addition, intervenors requested that the trial
court enjoin ODOJ from “collecting and maintaining information about the political, religious or social views, associations or activities of any individual group, association,
organization, corporation, business or partnership” unless
it “directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of
the information is or may be involved in criminal conduct.”
C. The Trial Court’s Ruling
The trial court entered a general judgment in favor
of defendants on all claims alleged by plaintiffs, declaring
that plaintiffs were not entitled to the declaratory relief that they sought and that, “[f]or the reasons set forth in [an opinion letter], the Oregon Department of Justice is authorized
by law to operate the Oregon * * * Fusion Center.”
In its opinion letter, the trial court interpreted
plaintiffs’ complaint to “seek[ ] a declaration * * * that the operation of the [fusion center] is unlawful—not that specific actions of the [fusion center] are unlawful.” The court understood the central determination it needed to make as
“whether a legal basis exists to declare that the entire operation of [the fusion center] is unauthorized and illegal” and ultimately concluded that “both the legislature and the governor have authorized the [fusion center] to operate.”
As to the legislative authorization, the trial court
concluded that, although no Oregon statutes specifically reference the fusion center, “viewed collectively,” the statutes defendants cited “grant ODOJ the power to create and maintain a department like the [fusion center.]” Specifically, the trial court was persuaded by the statutes that defendants
pointed to “where the legislature has granted ODOJ authority to investigate crimes and collect data.” Additionally, the court concluded that Oregon’s fusion center “is a program
known to the legislature and partially funded by general
fund dollars,” indicating that the legislature would not
choose to fund a program it had not authorized. Finally, the
32 Farrell-Smith v. Dept. of Justice
trial court determined that the fusion center “has operated
with the awareness and permission of the executive branch,”
citing a 2011 letter sent by then-governor Kitzhaber to the
U.S. Attorney General and the Secretary of the Department
of Homeland Security acknowledging that the fusion center
“is the designated fusion center in Oregon” and “has been
operational since May 2006.”
As to intervenors’ claim, the trial court dismissed
the claim because “as a practical matter there [was] no relief the Court [could] offer” because ORS 181A.250 “already
prohibits Defendants from taking the actions for which
Intervenors seek an injunction.”
The trial court also denied plaintiffs’ oral motion
to amend the complaint because any additional facts would
not alter the court’s conclusion that ODOJ had authority to
create and operate the fusion center as a matter of law.5
D. Arguments on Appeal
On appeal, plaintiffs argue that the trial court
ignored the complaint’s factual allegations and improperly
recharacterized their complaint as arguing that the fusion
center was not authorized to “even exist.” Plaintiffs argue
that their complaint does not make such an argument, that
ODOJ is free to create a subdivision called the “Oregon
TITAN Fusion Center,” but that the fusion center operates
in excess of the authority granted to ODOJ. Given the actual
nature of their request, plaintiffs argue that the trial court should have considered what the complaint alleges that the
fusion center does as compared with what ODOJ is statutorily authorized to do. In plaintiffs’ view, if the fusion center’s activities, as alleged, fall beyond ODOJ’s authorized powers, then the complaint has stated a cause of action sufficient to survive a motion for judgment on the pleadings.
As to those authorized powers, plaintiffs argue that
the legislature has conferred on ODOJ the power to conduct investigations in three narrowly defined areas: organized crime, public corruption, and the investment of funds
5
In their second assignment of error, plaintiffs challenge that ruling. We do not reach that assignment because we conclude that the trial court erred in granting judgment on the pleadings.
Cite as 354 Or App 24 (2026) 33
generated through criminal activity. ORS 180.610(2) - (6).
Outside of those three areas, relying in part on Oregon
ex rel Thornton v. Williams, 215 Or 639, 336 P2d 68 (1959),
plaintiffs argue that ODOJ may conduct investigations only
“when directed to do so by the Governor.” ORS 180.070(1).
Defendants argue that the trial court properly construed plaintiffs’ complaint to seek a declaration that ODOJ
lacks authority to operate the fusion center and that it was
correct in deciding that a collection of statutes, read together, grant ODOJ broad authority to create the fusion center and
to carry out its activities. Defendants also argue that the
governor’s letter indicates executive approval of the program and that the legislature’s appropriation of funds to the fusion center is evidence of statutory authorization for the program.
II. ANALYSIS
We review a trial court’s grant of a motion for judgment on the pleadings for legal error. Kramer, 341 Or App at
571. “We will affirm only if the allegations in the pleadings affirmatively show that the plaintiffs cannot prevail as a
matter of law.” Id. (internal quotation marks omitted).
In deciding the motion, the trial court cannot go
outside the pleadings, must “accept the well-pleaded allegations of fact in [the] plaintiffs’ complaint as true,” and
must “liberally construe the pleadings in [the] plaintiffs’
favor.” Id. at 570-71 (internal quotation marks omitted). The trial court should grant the motion “only when the pleadings, taken together, affirmatively show that the plaintiff
has no cause of action against the defendant or when [the]
defendant affirmatively alleges a complete defense which is
admitted or not denied by a reply.” Id. at 570 (internal quotation marks omitted). “Motions under ORCP 21 B should
be allowed only when the allegations in the pleadings are
clear enough to enable a court to recognize and analyze
the dispositive legal issues.” Beason v. Harcleroad, 105 Or
App 376, 383-84, 805 P2d 700 (1991) (emphasis in original).
“Because pleadings rarely provide that clarity, particularly
in complex cases * * * where the law is not fully developed,
motions for judgment on the pleadings are not favored.” Id.
at 384. “The strict requirements for granting motions on the
34 Farrell-Smith v. Dept. of Justice
pleadings reflect their disfavor[,]” with a strong preference for matters to be developed and decided through the process
of litigation. Kramer, 341 Or App at 571 (citing Thompson v.
Telephone & Data Systems Inc., 130 Or App 302, 309, 881
P2d 819, adh’d to as modified on recons, 132 Or App 103, 888
P2d 16 (1994) (“Motions for judgment on the pleadings are
not generally well-regarded by the courts, because hasty or
imprudent use of the procedure can conflict with the policy
of ensuring litigants a full and fair opportunity to try their claim or defense.”)).
We must determine if the complaint, properly construed, “affirmatively show[s] that the plaintiffs cannot prevail as a matter of law.” Kramer, 341 Or App at 571 (internal quotation marks omitted). Given the arguments below, we
must first determine whether plaintiffs’ complaint alleges
only that ODOJ acted ultra vires by creating the fusion center or if it may also be fairly read to allege that the fusion center’s operations exceed ODOJ’s authority. That also
requires at least a preliminary assessment of whether the
statutory authority cited by defendants is sufficient to defeat plaintiffs’ claims as a matter of law.
A. Construction of Plaintiffs’ Complaint
As noted, when deciding a motion for judgment on
the pleadings, the court cannot go outside the pleadings,
must “accept the well-pleaded allegations of fact in [the]
plaintiffs’ complaint as true,” and must “liberally construe
the pleadings in [the] plaintiffs’ favor.” Kramer, 341 Or App at 570-71 (internal quotation marks omitted). Reading the
complaint in light of that standard, we conclude that plaintiffs alleged facts that, if true, would show that the fusion center continues to engage in intelligence-gathering and
information-disseminating activities and that those specific
activities are not authorized by statute.
The complaint alleges that “[ODOJ] currently
operates the Oregon * * * Fusion Center [ ]—an opaque and
pervasive domestic intelligence program that is authorized
by no statute. In short, [the fusion center] is ultra vires—
beyond [ODOJ]’s legal power.” The complaint makes specific
allegations that the fusion center’s “surveillance operations Cite as 354 Or App 24 (2026) 35
regularly target law-abiding members of the Oregon public”
and that its “analysts routinely surveil, and facilitate the
surveillance of, individuals engaged in innocuous and constitutionally protected activity, including peaceful assemblies.” The complaint alleges that journalists have filed
public records requests seeking information on the fusion
center’s activities concerning other political demonstrations, including the Women’s March and protests against immigration-related executive orders, and that the fusion center “located responsive records” but declined to disclose the reports on the grounds that “criminal intelligence information is exempt from disclosure.” Plaintiffs also allege that
the fusion center engages in a “pattern of collecting, disseminating, and retaining intelligence without any criminal
nexus or legitimate public safety concern,” and that those
activities “continue[ ] unabated.”
As we explain below, those factual allegations support plaintiffs’ contention that ODOJ continues to operate
the fusion center in a manner that exceeds its legal authority. The court’s stated understanding of the issue presented—
that what was at issue was not “whether the [fusion center]
has exceeded its authority” but only that “Plaintiffs’ claims are centered on the authority of [the fusion center] to even
exist”—therefore did not liberally construe the pleadings in
plaintiffs’ favor.
The complaint’s allegations go beyond a recounting
of the fusion center’s past activities in relation to the Jordan Cove protests specifically, alleging not only that the fusion center has exceeded its authority in the past but also that
it continues to do so. And while it may be true that the allegations in the complaint can be read as challenging “the
authority of [the fusion center] to even exist,” the complaint may also be fairly construed to challenge particular activities of the fusion center, including—but not limited to—its
collection and dissemination of information related to political protests without a nexus to criminal activity.
That understanding of the allegations in the complaint is bolstered by the plaintiffs’ prayers for relief, which can be fairly construed not only as a challenge to the existence of the fusion center but also to its continuing operations 36 Farrell-Smith v. Dept. of Justice
and activities. Finch v. Miller, 271 Or 271, 275, 531 P2d 892 (1975) (explaining that prayers for relief are relevant when
they tend to explain or qualify other parts of a pleading).
For example, plaintiffs’ first prayer for relief specifically requests a declaration that the fusion center “is operating”
outside the statutory authority of the ODOJ, and the third
prayer for relief requests, among other things, the destruction of records that have been “retained” by the fusion center in the course of its ultra vires “activities.” And, intervenors’ requested relief would, if granted, constrain the fusion center’s operations, but it would not eliminate the fusion center entirely.
Construing the complaint liberally in favor of plaintiffs, as we must, we conclude that the complaint may be
fairly read to allege that specific identified activities the fusion center continues to undertake exceed ODOJ’s statutory authority. To the extent that plaintiffs’ complaint may
be read to make an ambiguous claim about the fusion center’s “operation”—that is, that it may be read as a challenge to its existence or to its specific activities—that ambiguity must be construed in favor of plaintiffs. The trial court therefore misconstrued plaintiffs’ complaint when it understood plaintiffs to be alleging only “that the operation of the [fusion center] is unlawful—not that specific actions of the
[fusion center] are unlawful.”
B. Statutory Authority for the Fusion Center’s Activities
Turning to the legal analysis underpinning the
trial court’s conclusion, we further conclude that the trial
court erred in dismissing the complaint on the pleadings
because the collection of statutes cited by defendants do not conclusively establish that the fusion center is legally authorized to conduct the information-gathering and disseminating activities alleged in the complaint. An agency, such as
ODOJ, is “a creature of statute” and “has no inherent power,
but only such power and authority as has been conferred
upon it by its organic legislation.” Ochoco Const. v. DLCD,
295 Or 422, 426, 667 P2d 499 (1983). That includes expressly
conferred powers and “such implied power as is necessary
to carry out the power expressly granted.” Id. When power
is statutorily granted, “actions outside the scope of that
Cite as 354 Or App 24 (2026) 37
power are ‘extra statutory’ and therefore ultra vires.” West
Linn Corporate Park v. City of West Linn, 349 Or 58, 96, 240
P3d 29 (2010) (distinguishing between actions outside of the
scope of granted authority, which are ultra vires, and actions that are authorized but fail to conform to procedural limitations, which are not necessarily ultra vires).
Relying on Thornton, plaintiffs argue that ODOJ
does not have plenary investigatory powers, even over criminal activity. In that case, the Supreme Court determined
“the extent of the power of the attorney general to initiate
investigations of alleged violation of the criminal statutes
* * *.” Thornton, 215 Or at 642. Recognizing that the office
is “a product of statute,” id. at 643, the court considered the statutory scheme creating ODOJ, including ORS 180.240,
id. at 649-51, and concluded that “the attorney general has
no power or duty to initiate an investigation of alleged violations of our criminal statutes nor to undertake any criminal prosecutions unless he is fortified with a gubernatorial mandate to so act[.]” Id. at 652.
Here, the trial court acknowledged, as did defendants, that no statute expressly confers on defendants the
authority to create the fusion center and carry out its operations. Rather, the trial court agreed that the statutes cited by defendants, when read collectively, confer implied authority “to investigate crimes and collect data” and “to perform
a myriad of specific tasks and as such provided ODOJ with
broad authority to operate the [fusion center].” The trial
court therefore held that there is “a reasonable basis for the implication that ODOJ has the authority to create and operate the [fusion center].”
Ordinarily, we would review a trial court’s interpretation of a statute for errors of law. See ACLU of Oregon
v. City of Portland, 338 Or App 750, 757, 567 P3d 1067,
rev allowed, 374 Or 372 (2025) (reviewing the trial court’s
construction of ORS 180A.250 for legal error). However, in
this case the trial court concluded that “the [fusion center]’s operation is not ultra vires” without analyzing any particular statute. Nevertheless, a review of the specific statutes
cited by defendants demonstrates that—even when taken
together—they do not obviously permit ODOJ to engage
38 Farrell-Smith v. Dept. of Justice
in the information-gathering and dissemination activities
alleged in the complaint, especially as to political activities.
Defendants cite numerous statutes that, they argue,
when read together, confer upon them implied authority to
operate the fusion center: ORS 180.210 and ORS 180.060(7),
declaring the Oregon Attorney General as “the chief law
officer for the state and all its departments”; ORS 180.240,
giving the Attorney General “the same powers and prerogatives” as district attorneys; ORS 8.630, giving district attorneys the powers of prosecuting attorneys; ORS 131.605(5)
and ORS 133.005(3)(d), defining “peace officer” to include
ODOJ investigators; and ORS 131.615 and ORS 133.033,
authorizing peace officers to make stops and reasonable
inquiries and carry out community caretaking functions,
respectively. Additionally, defendants cite ORS 181A.265,
authorizing the Department of State Police or designated
criminal justice agency, including the Attorney General, to
operate a “Criminal Justice Information Standards” program to coordinate information among state criminal justice agencies for the purpose of “criminal justice planning
and programs.” Defendants also point to ORS 181A.250—
which the complaint alleges that the fusion center routinely
violates—to indicate that the legislature acted under the
presumption that ODOJ possesses the power to collect and
maintain information when it limited the scope of such
activities.
But those statutes, even read collectively, do not
bear the weight of the alleged activities. ORS 181A.250 bars
law enforcement agencies from “collecting or maintaining
information about the political, religious or social views,
associations or activities” of individuals and groups “unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect
the subject of the information is or may be involved in criminal conduct.” That statute does not confer any additional
authority to law enforcement agencies that they do not
already possess by some other statute. Similarly, while ORS
181A.265 allows for information sharing between criminal
justice agencies for the purpose of coordinated responses,
it does not say anything about what information those
Cite as 354 Or App 24 (2026) 39
criminal justice agencies may gather, and thus it, too, does
not grant those agencies any additional authority to investigate or take actions not otherwise authorized by separate
statutes. ORS 180.240, which gives ODOJ the same “powers
and prerogatives * * * as the district attorneys have in their respective counties,” was considered by the Supreme Court
when it decided Thornton, and the court concluded that “at
no time since the office of attorney general came into being
in 1891 has that officer been empowered to initiate on his
own motion any criminal investigations or prosecutions
except when so directed by the governor[.]” 215 Or at 651.
Moreover, it is not obvious that the “powers and prerogatives” of district attorneys reach so far as to encompass the surveillance operations alleged in the complaint.
The general crime prevention authorities cited by
defendants add little to defendants’ arguments. Although
ORS 131.605(5) and ORS 133.005(3)(d) define “peace officer”
to include ODOJ investigators, and ORS 131.615 and ORS
133.033 authorize peace officers to make stops and reasonable inquiries and carry out community caretaking functions, respectively, those crime prevention statutes do not
obviously authorize law enforcement to conduct sweeping
surveillance in the absence of any connection to crimes or
criminal activity, as alleged in the complaint. That view is
consistent with our recent decision in ACLU of Oregon, in
which we concluded that “a livestream by law enforcement of
a lawful protest” was prohibited by ORS 181A.250 because
it “collects information about protesters’ political views and activities” and makes it accessible to third parties. 338 Or
App at 763. We explained that it is of no moment that the
livestream is only temporarily stored, because “the statute
prohibits law enforcement from creating [a digital reproduction of an individual’s lawful protest] in the first place.” Id. at 764.
Furthermore, in circumstances where the legislature intends to grant ODOJ investigative authority, it has
done so explicitly. For example, in the context of organized
crime investigations, ORS 180.610 specifically directs ODOJ
to “[e]stablish a coordinated system of collecting, storing and disseminating information relating to organized crime,” to
40 Farrell-Smith v. Dept. of Justice
assist local, state, and federal law enforcement agencies in
“the investigation and suppression of organized criminal
activity,” and to “[i]nvestigate investment of funds in Oregon suspected to have been generated by criminal activities.”
Investigators employed pursuant to that statutory authorization are granted “all statutory powers of peace officers
and police officers,” ORS 180.620, and ODOJ is specifically
authorized to seek and expend federal grant money for those
purposes, ORS 180.630. And, the legislature authorized the
Attorney General to “take full charge of an investigation or
prosecution in which the circuit court has jurisdiction,” but only “when directed to do so by the governor”; when acting
pursuant to that authority, the legislature has granted the
Attorney General “all the powers of a district attorney.” ORS 180.070(1), (2).
In short, the collection of statutes referred to by
the trial court does not obviously grant ODOJ the authority
to perform the broad-sweeping surveillance of law-abiding
Oregonians that the complaint alleges. The trial court
therefore erred in concluding that such powers were clearly
implied by statute.
C. Legislative or Gubernatorial Authority for the Fusion
Center’s Activities
The trial court cited to two additional factors in
concluding that plaintiffs’ claims were “misplaced.” First,
the trial court noted that ODOJ has sought and received
funds from the legislature to operate the fusion center and
that “[c]learly, the [fusion center] is a program known to the legislature and partially funded by general fund dollars.
It does not make sense that the legislature would fund a
program if the legislature did not believe it had authorized
the program to exist in the first place.” But that reliance
on legislative appropriation of funds to the fusion center
as evidence of conferred statutory authority is misplaced.
Appropriations occur in an omnibus format, and the process does not involve the type of robust debate and consideration of competing concerns and appropriate limitations
that characterize legislation that confers authority. Cf.
Tenn. Valley Auth. v. Hill, 437 US 153, 190, 98 S Ct 2279,
57 L Ed 2d 117 (1978) (explaining that “when voting on
Cite as 354 Or App 24 (2026) 41
appropriation measures, legislators are entitled to operate
under the assumption that funds will be devoted to purposes which are lawful” to better facilitate efficient voting on appropriations and avoid unintended alterations to substantive legislation); ACLU v. Clapper, 785 F3d 787, 824-25
(2d Cir 2015) (observing that the constitutional issues raised by the National Security Agency’s bulk telephone metadata
collection program “remind us of the primary role that
should be played by our elected representatives in deciding,
explicitly and after full debate, whether such programs are
appropriate and necessary.”). The legislature’s recognition
that ODOJ operates the fusion center—by appropriating
funds to it—does not necessarily imply that the legislature
has provided ODOJ with statutory authority to do so or, further, to engage in the specific activities alleged in plaintiffs’ complaint.
Second, the trial court concluded that “[t]he head
of the executive branch granted authority to the Attorney
General and ODOJ to operate the [fusion center] and
accordingly the [fusion center]’s operation is not ultra vires,” based on a 2011 letter, provided by defendants during the
litigation, that then-Governor Kitzhaber sent to federal
authorities identifying the “Oregon TITAN Fusion Center”
as Oregon’s fusion center and acknowledging that it had
been operating in Oregon since May 2006. Under Thornton,
the Attorney General and ODOJ may conduct investigations
“when so directed by the governor.” 215 Or at 651. But that
letter does not represent a grant of authority to the fusion
center. It does not direct ODOJ to create the fusion center,
cites no authority to form the basis of the fusion center’s
legality, and was drafted several years after the fusion center began to operate. In short, it does not grant the fusion
center the power to engage in the activities that are alleged in the complaint.
III. CONCLUSION
We therefore conclude that the trial court erred by
granting judgment on the pleadings, because the pleadings
do not “affirmatively show that plaintiffs cannot prevail as a matter of law.” Kramer, 341 Or App at 571 (internal quotation marks omitted). Specifically, as explained above, contrary
42 Farrell-Smith v. Dept. of Justice
to the trial court’s reading, the complaint, construed liberally in favor of plaintiffs, alleges that at least some of the fusion center’s activities, which it continues to undertake,
exceed ODOJ’s statutory authority. Further, as a legal matter, the trial court erred when it concluded that the statutes identified by defendants demonstrate that the legislature granted broad investigatory authority to ODOJ that
would support the information-gathering and dissemination
activities that are alleged in the complaint. Legislatures do not “hide elephants in mouseholes,” Whitman v. American
Trucking Associations, 531 US 457, 468, 121 S Ct 903, 149
L Ed 2d 1 (2001); the fusion center’s operations, as alleged, seem elephantine in comparison to the authorities cited by
defendants.
The factual and legal context for plaintiffs’ claims
is complex, and, as detailed above, the factual allegations
underlying those claims are unsettling. The question is not
whether the national network of fusion centers or Oregon’s
own fusion center is important, useful, or supported by
federal policy. The question is whether the activities of
Oregon’s fusion center, as alleged in the complaint, are permitted by Oregon law, that is, whether the Oregon legislature has actually conferred to ODOJ the necessary authority to undertake those activities. As we have explained, on
the pleadings before us, the exercise of the asserted power
appears substantially broader than the statutes defendants
identify as the source of authority. The federal government
may encourage information sharing, provide funding and
technical assistance, make federal information available to
state and local authorities, and establish standards for participation in a national information-sharing environment.
But federal encouragement does not enlarge the powers conferred on a state agency by state law. Whether Oregon officials may exercise a particular governmental power remains
a question of Oregon law.
Furthermore, the complaint alleges that because
ODOJ has declined to disclose information in response to
public records requests on the grounds that “criminal intelligence information” is exempt from disclosure, the extent of the fusion center’s regular operations is largely unknown. It Cite as 354 Or App 24 (2026) 43
also alleges that private entities associated with the Jordan Cove project encouraged local law enforcement to use the
fusion center to avoid Freedom of Information Act and public records requirements.6 The conduct of the government
as alleged in the complaint—operating a secretive law
enforcement program in excess of statutory authority in a
manner that chills political participation and the exercise
of constitutionally-protected rights—would surely test the
expectations that Oregonians set for the conduct of our government. See State v. De Witt Simons, 375 Or 70, 80, 587 P3d
311 (2026) (Article I, section 9, of the Oregon Constitution
“does not focus on the expectation of privacy of the individual; rather, it focuses on the expectations that society sets for the conduct of our government.”).
Because of its narrow reading of the complaint
and the lack of direct statutory authority for the activities alleged in the complaint, we conclude that the trial court
erred in granting defendants’ motion for judgment on the
pleadings.
Reversed and remanded.
6
Those two characteristics of the Oregon fusion center—information-sharing with the private sector and the opacity of its activities resulting from its collaborative operations—appear to be a feature, not a bug. See, e.g., Priscilla M. Regan, Torin Monahan & Krista Craven, Constructing the Suspicious: Data Production, Circulation, and Interpretation by DHS Fusion Centers, 47 Admin & Soc’y 740, 743-44, 743 n4 (2013) (describing outreach and cooperation between fusion centers and the private sector); Danielle Keats Citron & Frank Pasquale, Network Accountability for the Domestic Intelligence Apparatus, 62 Hastings L J 1441, 1449, 1453, 1454, 1464-65, 1483 (2011) (describing private firms co-locating with fusion centers, private employees working at fusion centers, information-sharing agreements between fusion centers and private entities, and transparency concerns related to complex structures involving both federal and state sunshine law exemptions and dispersed authority to operate). See generally Bridget A. Fahey, Data Federalism, 135 Harv L Rev 1007 (2022) (describing the rapidly expanding governmental market in individual data, the contrast between the cross-governmental administrative institutions that manage data flows and oversee data pools and conventional cooperative federalism programs, and how such data programs are shielded from public view and scholarly critique).