Farrell-Smith v. Dept. of Justice

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 plain- tiffs 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 author- ity 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 oper- ate 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 fur- ther proceedings. I. BACKGROUND We state the facts as set forth in the complaint, lib- erally 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 cam- paign 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 seek- ing 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 “appre- hension 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 envi- ronmental 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 dedi- cated to ecological preservation and providing women access to nature. Intervenor-plaintiffs are Rogue Climate and 350 Eugene, both 501(c)(3) non- profit 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 assess- ments 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 crim- inal threats. In their answer and on appeal, defendants do not dispute that Oregon’s fusion center collects and dissem- inates 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 cen- ter 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 assess- ment reports, safety bulletins, and other intelligence prod- ucts, characterizing the protestors as potential terrorist or criminal threats. They did so, the complaint alleges, with- out 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 part- nership unless such information directly relates to an investigation of crimi- nal 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 mon- itor 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 indi- cated 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 advo- cacy are part of a broader pattern of the fusion center’s oper- ations. 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 investi- gated 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-re- lated 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 immigra- tion, ODOJ responded that the fusion center “had located responsive records,” but it declined to disclose the reports, citing an exemption for “criminal intelligence informa- tion.” 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 statu- torily 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 injunc- tive 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 activ- ities; (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 infor- mation about the political, religious or social views, asso- ciations 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 opin- ion 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 spe- cific 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 oper- ation of [the fusion center] is unauthorized and illegal” and ultimately concluded that “both the legislature and the gov- ernor have authorized the [fusion center] to operate.” As to the legislative authorization, the trial court concluded that, although no Oregon statutes specifically ref- erence the fusion center, “viewed collectively,” the statutes defendants cited “grant ODOJ the power to create and main- tain 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 author- ity 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 statuto- rily 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 con- duct investigations in three narrowly defined areas: orga- nized 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 con- strued 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 judg- ment 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 alle- gations 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 plead- ings, 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 quo- tation 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 con- strued, “affirmatively show[s] that the plaintiffs cannot pre- vail 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 cen- ter 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 plain- tiffs 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 con- stitutionally protected activity, including peaceful assem- blies.” 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 immi- gration-related executive orders, and that the fusion cen- ter “located responsive records” but declined to disclose the reports on the grounds that “criminal intelligence informa- tion is exempt from disclosure.” Plaintiffs also allege that the fusion center engages in a “pattern of collecting, dissem- inating, 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 sup- port 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 alle- gations 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 activi- ties of the fusion center, including—but not limited to—its collection and dissemination of information related to polit- ical protests without a nexus to criminal activity. That understanding of the allegations in the com- plaint is bolstered by the plaintiffs’ prayers for relief, which can be fairly construed not only as a challenge to the exis- tence 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 destruc- tion 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 cen- ter’s operations, but it would not eliminate the fusion center entirely. Construing the complaint liberally in favor of plain- tiffs, 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 statu- tory authority. To the extent that plaintiffs’ complaint may be read to make an ambiguous claim about the fusion cen- ter’s “operation”—that is, that it may be read as a challenge to its existence or to its specific activities—that ambigu- ity must be construed in favor of plaintiffs. The trial court therefore misconstrued plaintiffs’ complaint when it under- stood 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 autho- rized to conduct the information-gathering and disseminat- ing 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 limita- tions, which are not necessarily ultra vires). Relying on Thornton, plaintiffs argue that ODOJ does not have plenary investigatory powers, even over crim- inal 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 vio- lations of our criminal statutes nor to undertake any crim- inal prosecutions unless he is fortified with a gubernatorial mandate to so act[.]” Id. at 652. Here, the trial court acknowledged, as did defen- dants, that no statute expressly confers on defendants the authority to create the fusion center and carry out its oper- ations. Rather, the trial court agreed that the statutes cited by defendants, when read collectively, confer implied author- ity “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 oper- ate the [fusion center].” Ordinarily, we would review a trial court’s inter- pretation 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 particu- lar 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 preroga- tives” as district attorneys; ORS 8.630, giving district attor- neys 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” pro- gram to coordinate information among state criminal jus- tice 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 crim- inal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in crim- inal 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 inves- tigate 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 preroga- tives” 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 reason- able inquiries and carry out community caretaking func- tions, 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 reproduc- tion of an individual’s lawful protest] in the first place.” Id. at 764. Furthermore, in circumstances where the legisla- ture 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 autho- rization 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 pro- cess does not involve the type of robust debate and consid- eration 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 pur- poses which are lawful” to better facilitate efficient voting on appropriations and avoid unintended alterations to sub- stantive 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, fur- ther, 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 Kitzh