S056410, Opinion — State ex rel Dewberry v. Kulongoski

260
Argued and submitted February 25, decision of Court of Appeals affirmed;
case remanded to trial court for further proceedings June 18, 2009
STATE ex rel Susan DEWBERRY,
Carole Holcombe, Suzane Danielson
and Arnold Buchman,
Respondents on Review,
v.
The Honorable Theodore R. KULONGOSKI,
Governor of the State of Oregon;
and other Executive Officers in the State of Oregon,
Petitioners on Review.
(CC 16-03-23044; CA A124001; SC S056410)
210P3d884

Cite as 346 Or 260 (2009) 	261
CJS, Mandamus § 282.
En Banc
On review from the Court of Appeals.*
Anna 	M. 	Joyce, 	Assistant Attorney General, 	Salem,
argued the cause for petitioner on review. With her on the
briefs were Hardy Myers, Attorney General, Stephanie L.
Striffier, Special Counsel to the Attorney General, and Mary
H. Williams, Solicitor General.
Kelly Clark, O'Donnell Clark & Crew, LLP, Portland,
argued the cause for respondents on review. With him on the
briefs was Kristian Roggendorf.
Craig 	J. 	Dorsay, 	Dorsay 	& 	Easton 	LLP, 	Portland;
Howard G. Arnett, Dennis C. Karnopp, Karnopp Petersen
LLP, Bend; Wayne Shammel, Roseburg; Dan Hester, Hester
& Zehren LLC, Louisville, Colorado; Kimberly D'Aquila,
Tribal 	Attorney 	Office, 	Grande 	Ronde; 	Edmund 	Clay
* Appeal from Lane County Circuit Court, Karsten H. Rasmussen, Judge. 220
Or App 345, 187 P3d 220 (2008).

262 	State ex rel Dewberry v. Kulongoski
Goodman, Hobbs, Straus, Dean & Walker, LLP, Portland;
Brett 	Kenney, 	Tribal Attorney, 	North 	Bend, 	and 	Dirk
E. Doyle, Roseburg, filed a brief on behalf of amici curiae
Confederated 	Tribes 	of Siletz 	Indians 	of Oregon, 	The
Confederated Tribes of the Warm Springs Reservation of
Oregon, The Cow Creek Band of Umpqua Tribe of Indians,
The Confederated Tribes of the Umatilla Reservation, The
Confederated Tribes of the Grand Ronde Community of
Oregon, the Klamath Tribes, and the Coquille Indian Tribe.
DE MUNIZ, C. J.
The decision of the Court of Appeals is affirmed. The case
is remanded to the trial court for further proceedings.

Cite as 346 Or 260 (2009) 	263
DE MUNIZ, C. J.
Relators filed a petition for a writ of mandamus in
Lane 	County 	Circuit 	Court 	in 	2003, 	challenging 	the
Governor's authority to enter into a gaming compact with the
Confederated Tribes of Coos, Lower Umpqua, and Suislaw
Indians (the Tribes). Under the compact, the Tribes would be
permitted to open a casino near Florence, Oregon. On the
state's motion, the trial court dismissed relators' petition on
two grounds: (1) relators had failed to show that they had no
adequate remedy at law; and (2) relators had failed to join the
Tribes in the action, in violation of ORCP 29 A. 1 Relators
appealed, and the Court of Appeals reversed and remanded.
We allowed the state's petition for review, and we now affirm
the Court of Appeals decision.
In 2002, the Governor negotiated an amended gam-
ing compact with the Tribes, pursuant to ORS 190.110 2 and
the Indian Gaming Regulatory Act, 25 USC§§ 2701-2721, to
operate a casino near Florence. That gaming compact was
finalized in early 2003. Relators, who reside in or near
Florence, first challenged that compact by filing a petition for
a writ of mandamus in this court in September 2003. This
court denied that petition.
1 ORCP 29 A provides:
"A person who is subject to service of process shall be joined as a party in
the action if (1) in that person's absence complete relief cannot be accorded
among those already parties, or (2) that person claims an interest relating to
the subject of the action and is so situated that the disposition in that person's
absence may (a) as a practical matter impair or impede the person's ability to
protect that interest or (b) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obli-
gations by reason of their claimed interest. If such person has not been so
joined, the court shall order that such person be made a party. If a person
should join as a plaintiff but refuses to do so, such person shall be made a
defendant, the reason being stated in the complaint."
ORS 190.110(1) provides:
"In performing a duty imposed upon it, in exercising a power conferred
upon it or in administering a policy or program delegated to it, a unit oflocal
government or a state agency of this state may cooperate for any lawful pur-
pose, by agreement or otherwise, with a unit of local government or a state
agency of this or another state, or with the United States, or with a United
States governmental agency, or with an American Indian tribe or an agency of
an American Indian tribe. This power includes power to provide jointly for
administrative officers."

264 	State ex rel Dewberry v. Kulongoski
Shortly thereafter, relators filed a mandamus pro-
ceeding in Lane County Circuit Court, naming the Governor
of Oregon and "other executive officers" as defendants. In
that proceeding, relators argued that, in executing the com-
pact, the Governor had acted unconstitutionally in two ways:
(1) he had violated Article XV, section 4(12), of the Oregon
Constitution, which, relators argue, prohibits the operation
of casinos in the State of Oregon; 3 and (2) he had violated the
separation of powers provisions of Article III, section 1,
Article IV, section 1, and Article V, section 10, of the Oregon
Constitution. 4 Relators requested that the court make find-
ings in accordance with those allegations and to hold that the
compact was void. Relators also requested that the court
command defendants to "ensure that no state agency or any
Executive officer will take any act in furtherance of the
Compact[.]"
The state moved to dismiss relators' petition on
three grounds: ( 1) that mandamus relief was not available
because relators had an adequate remedy at law in the form
of a declaratory judgment action; (2) that relators failed to
join the Tribes, which, the state argued, were indispensable
parties under ORCP 29; and (3) that relators' petition was
not timely. As noted, the trial court granted the state's
motion on the first two grounds.
Relators immediately appealed, but moved to hold
the appeal in abeyance in order to pursue a declaratory judg-
ment action. Relators then filed a declaratory judgment
Article XV, section 4(12), states, "The Legislative Assembly has no power to
authorize, and shall prohibit, casinos from operation in the State of Oregon."
4 Article III, section 1, provides:
"The powers of the Government shall be divided into three seperate [sic]
departments, the Legislative, the Executive, including the administrative, and
the Judicial; and no person charged with official duties under one of these
departments, shall exercise any of the functions of another, except as in this
Constitution expressly provided."
Article IV, section 1, provides, in part:
"(1) The legislative power of the State, except for the initiative and refer-
endum powers reserved to the people, is vested in a Legislative Assembly, con-
sisting of a Senate and a House of Representatives."
Article V, section 10, provides:
"[The Governor] shall take care that the Laws be faithfully executed."

Cite as 346 Or 260 (2009) 	265
action against the state and the Tribes in Lane County
Circuit Court in March 2004. The state removed the case to
federal court. The federal district court dismissed the declar-
atory judgment action in December 2005, after concluding
that relators lacked standing and that the Tribes enjoyed
sovereign immunity. Dewberry u. Kulongoski, 406 F Supp 2d
1136 (2005). Following that dismissal, relators reactivated
their appeal.
Before the Court of Appeals, relators offered three
arguments: (1) the trial court erred procedurally by not issu-
ing an alternative writ of mandamus on receipt of relators'
petition, as required by ORS 34.130; (2) the trial court erred
in dismissing the petition based on the availability of a
declaratory judgment action, which was not an adequate
remedy at law; and (3) the trial court erred in concluding that
ORCP 29 A, concerning joinder of parties, applied to manda-
mus proceedings. In addition to countering those arguments,
the state argued, as an alternative basis for affirmance, that
relators were precluded from 	litigating issues that had
already been litigated in the declaratory judgment proceed-
ings in federal court.
The Court of Appeals disposed ofrelators' first argu-
ment by concluding that any error committed by a trial court
in failing to follow the precise procedure set forth in ORS
34.130 was harmless. State ex rel Dewberry u. Kulongoski,
220 Or App 345, 350, 187 P3d 220 (2008).
As to relators' other arguments, the Court of Appeals
first analyzed whether ORCP 29 applies to the circuit court
mandamus proceeding. Id. at 351. That court concluded that
ORCP 29 A does not apply to a mandamus proceeding,
because the statute governing mandamus actions specifies a
different procedure as to parties. Id. at 353-54. ORCP 1 A, the
court noted, states that the Oregon Rules of Civil Procedure
apply in "all civil actions and special proceedings * * * except
where a different procedure is specified by statute or rule." Id.
at 351 (emphasis added by Court of Appeals). After reviewing
the procedures governingjoinder of parties outlined in ORCP
29 A and the procedures governing parties outlined in the
mandamus statute, the court concluded that the mandamus
provisions "differ[ed] in substance from the provisions of

266 	State ex rel Dewberry v. Kulongoski
ORCP 29[.]" Id. at 353. ORCP 29 A, the court explained, gov-
erns the joinder of a "broad class of persons-including per-
sons 'claim[ing] an interest relating to the subject of the
action' whose 'ability to protect that interest' may be 'impair[ed]
or impede[d]' by a disposition in their absence." Id. (quoting
ORCP 29 A). The court contrasted ORCP 29 A with the man-
damus statute, which provides that the only required parties to
a mandamus proceeding are a "relator'' and a "defendant." Id.
The court also noted that the mandamus statute provided that
"adverse parties" may participate in mandamus proceedings by
way of intervention, but did not require that they do so. Id. at
354. Based on those differences, the court concluded that ORCP
29 does not apply in mandamus proceedings. Id.
The Court of Appeals then addressed whether the
trial court erred in dismissing relators' mandamus petition
because relators have a" 'plain, speedy and adequate' "alter-
nate remedy, in the form of a declaratory judgment action
under the Uniform Declaratory Judgments Act. Id. at 355
(quoting ORS 34.110). In answering the question in the affir-
mative, the Court of Appeals explained that two circum-
stances led to its conclusion: (1) the Tribes' participation in
the declaratory judgment action was a jurisdictional prereq-
uisite to the availability of an adjudication on the merits of
that action, and (2) the satisfaction of that prerequisite was
a matter entirely within the Tribes'-and not relators'-
control. Id. at 358-59. ORS 28.110 requires that "all persons
shall be made parties who have or claim any interest which
would be affected by the declaration[.]" Id. at 355-56. The
court reasoned that that requirement was jurisdictional and,
therefore, any declaratory judgment action pursued by rela-
tors could not proceed without the Tribes' participation, as
the Tribes are signatories to the challenged compact. Id. at
359. Because the Tribes could invoke sovereign immunity,
the Tribes controlled their participation in the action and,
therefore, also controlled the availability of declaratory relief.
Id. For those reasons, the Court of Appeals held that a declar-
atory judgment action affords relators neither a "plain" nor
"adequate" remedy. Id.
Finally, the Court of Appeals rejected the state's
claim preclusion argument because it was not and could not

Cite as 346 Or 260 	267
have been pleaded before the trial court. 5 Id. at 360. The
Court of Appeals concluded that the trial court erred in dis-
missing relators' mandamus petition and, therefore, reversed
and remanded. Id. at 361. We allowed the state's petition for
review.
We begin with a brief review of the background and
purpose of the writ of mandamus. Mandamus has its origins
in England, where the writ was "a command of the central
courts, in the name of the sovereign, requiring a local official
to do his duty." State ex rel Kashmir Corp. v. Schmidt, 291 Or
603, 608, 633 P2d 791 (1981). Under Oregon law, the writ
may be issued to "any inferior court, corporation, board, offi-
cer or person, to compel the performance of an act which the
law specially enjoins[.]" ORS 34.110. A writ of mandamus is
an extraordinary remedy, awarded upon equitable princi-
ples, and is a special proceeding with pleading and practice
requirements that are different from ordinary legal actions.
Buell v. Jefferson County Court, 175 Or 402, 408-09, 152 P2d
578, 154 P2d 188 (1944). This court has stated that " '[t]he
primary purpose or function of a writ of mandamus is to
enforce an established right, and to enforce a corresponding
imperative duty created or imposed by law.'" State ex rel
Venn v. Reid, 207 Or 617, 624, 298 P2d 990 (1956) (quoting 55
CJS Mandamus § 51). A writ of mandamus "shall not control
judicial discretion" and "shall not be issued in any case where
there is a plain, speedy and adequate remedy in the ordinary
course of the law." ORS 34.110.
Turning to the questions presented, we first address
whether ORCP 29 A applies to mandamus proceedings. The
state contends that, when a mandamus proceeding does
not arise out of judicial or administrative proceedings, ORCP
29 A governs to determine the necessary parties. Relators, on
the other hand, contend that the mandamus statutes set out
procedures that are different from and are inconsistent with
ORCP 29 A respecting the necessary parties and, therefore,
ORCP 29 A does not apply to mandamus proceedings. For the
following reasons, we agree with relators and conclude that
ORCP 29 A does not apply to mandamus proceedings.
The state does not assert that argument on review in this court.

268 	State ex rel Dewberry v. Kulongoski
The Oregon Rules of Civil Procedure "govern proce-
dure and practice in all circuit courts of this state,* * *for all
civil actions and special proceedings***." ORCP 1 A. ORCP
1 A also limits the applicability of the Oregon Rules of Civil
Procedure by excluding cases "where a different procedure is
specified by statute or rule." As quoted above, ORCP 29 A
governs joinder of necessary parties, requiring that certain
parties be joined in an action in which complete relief cannot
be accorded without those parties, in which those parties'
absence may impair their ability to protect their interest, or
in which those parties' absence may leave other parties sub-
ject to inconsistent or multiple obligations. If the statute gov-
erning mandamus proceedings specifies a "different pro-
cedure" than ORCP 29 A regarding joinder of parties, ORCP
29 A does not apply to mandamus proceedings. ORCP 1 A.
ORS 34.105 defines the parties to mandamus pro-
ceedings. ORS 34.105(4) defines "relator" as "the beneficially
interested party on whose relation a mandamus proceeding
is brought." A "defendant" in a mandamus proceeding is "the
court, corporation, board, officer or person against whom
relief is sought in a mandamus proceeding." ORS 34.105(3).
An "adverse party" is a "beneficially interested party to a
judicial or administrative proceeding from which a manda-
mus proceeding arises, whose interests are adverse to the
relator." ORS 34.105(1) (emphasis added).
ORS 34.130 outlines various procedures applicable
to mandamus proceedings, including filing requirements,
service requirements, and intervention by adverse parties.
As to intervention of parties, ORS 34.130(4)(a) provides that,
prior to the return date of an alternative writ, "any adverse
party may intervene in the mandamus proceeding as matter
of right" and, after that date, "the court in its discretion may
allow an adverse party to intervene." ORS 34.130 does not
state that any parties, other than a relator and a defendant,
are required to participate. Under the mandamus statute,
therefore, the only required parties in a mandamus proceed-
ing are the relator and the defendant. Adverse parties are
permitted, but not required, to intervene in the action in all
circumstances. ORS 34.130(4). Put another way, no party
other than the defendant is required to be joined by the rela-
tor in the mandamus proceeding.

Cite as 346 Or 260 (2009) 	269
The 	state 	contends 	that 	the 	reference 	in 	ORS
34.130(4) to adverse parties concerns only those mandamus
actions that arise from judicial or administrative proceed-
ings. We agree, insofar as that is how ORS 34.105(1) defines
"adverse party." The state then goes on to argue that, because
the mandamus statute is silent as to the parties to a manda-
mus proceeding that does not arise from a judicial or admin-
istrative proceeding, ORCP 29 A must apply to fill in the gap.
We disagree. The structure of the mandamus statute makes
clear that an interested party who is not a relator or a defen-
dant in any mandamus proceeding has, at most, a right to
seek to intervene. If the state's contention were correct, and
the necessary parties to a mandamus proceeding varied
depending on whether that proceeding arose from a judicial
or administrative proceeding, then a "necessary" party to a
mandamus proceeding that did not arise from a judicial or
administrative proceeding would have greater rights to par-
ticipate in such a case than would an adverse party to a cir-
cuit court proceeding that gave rise to a mandamus action.
Such a result cannot be what the legislature intended by its
reference to adverse parties in the mandamus statute.
The foregoing construction is supported by the fact
that the legislature included specific references to the Oregon
Rules of Civil Procedure elsewhere in the mandamus statute.
For example, ORS 34.130(2) requires a relator to "serve a
copy of the petition on the defendant and, if the mandamus
proceeding arises from a judicial or administrative proceed-
ing, on all parties to that proceeding." That subsection fur-
ther states that service is "sufficient if it complies with ORCP
9 B." ORCP 9 is invoked again in the subsection governing
service of the writ. ORS 34.140(1). No similar reference to
ORCP 29 A appears anywhere in the mandamus statute. 6
To summarize, ORCP 29 A mandates that certain
persons be joined in an action in circumstances where com-
plete relief cannot be accorded without the participation of a
person or where the person's ability to protect his or her
6 We do not imply that only those rules mentioned specifically in the manda-
mus statute apply in mandamus proceedings. Instead, we merely note that the leg-
islature could have referred to ORCP 29 A in the provisions of the mandamus stat-
ute concerning intervention and parties had it intended that rule to apply to
mandamus actions.

270 	State ex rel Dewberry v. Kulongoski
interests will be impeded or impaired. The procedure out-
lined in the mandamus statute, ORS 34.130(4), on the other
hand, allows interested parties to seek intervention and
requires the participation of only a relator and a defendant.
Because the mandamus statute specifies a "different proce-
dure" than the procedure contained in ORCP 29 A, ORCP
29 A does not apply to mandamus proceedings. ORCP 1 A. It
follows that the trial court erred in concluding that ORCP
29 A required that relators join the Tribes in this mandamus
action.
We turn now to whether a declaratory judgment
action is a "plain, speedy and adequate remedy in the ordi-
nary course of the law." ORS 34.110. If a declaratory judg-
ment action is a plain, speedy, and adequate remedy, then
the circuit court properly dismissed the petition for a writ of
mandamus. The state argues that a declaratory judgment
action provides relators with a plain, speedy, and adequate
remedy at law, even though the Tribes could assert sovereign
immunity in a declaratory judgment action and obtain dis-
missal ofrelators' claims against them. Relators, on the other
hand, contend that a declaratory judgment action does not
afford them a plain, speedy, and adequate remedy, because
relief in that action depends solely on the Tribes' discretion in
choosing whether to assert sovereign immunity. For the rea-
sons that follow, we conclude that a declaratory judgment
action does not provide relators with a plain and adequate
alternative remedy.
We begin our analysis of whether a declaratory judg-
ment action affords relators a "plain, speedy and adequate
remedy" by analyzing the statutory text and context. PGE v.
Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d
1143 (1993). Words of common usage are given their plain,
natural, and ordinary meaning. Fort Vannoy Irrigation v.
Water Resources Comm., 345 Or 56, 70, 188 P3d 277 (2008).
Statutory terms that have a well-defined legal meaning will
be given that meaning. Wal-Mart Stores, Inc. 	v. City of
Central Point, 341 Or 393, 397, 144 P3d 914 (2006). Our
review of the statutory text and context includes prior opin-
ions of this court interpreting the same statute. Id. 7
7 Although our task is to interpret the phrase "plain, speedy and adequate rem-
edy," we note that whether a declaratory judgment action is sufficiently "speedy" is

Cite as 346 Or 260 (2009) 	271
This court has provided insight into the meaning of
"plain," as used in the mandamus context. In State ex rel
Huddleston v. Sawyer, 324 Or 597, 600-05, 932 P2d 1145
(1997), 	an 	original 	mandamus 	proceeding, 	this 	court
addressed whether the state (the relator in that case) had a
plain, speedy, and adequate remedy by appeal under the
applicable statutes, ORS 138.060(5) and ORS 138.222. This
court explained that
"it is the remedy, not the statute creating the remedy, that
must be 'plain.' If a statute, however ambiguous, grants
a right to an appeal respecting the disputed issue, for
example, then the remedy-appeal-ordinarily precludes
mandamus."
Id. at 600-01 n 5. After analyzing the applicable statutes, the
court concluded that the state did not have a plain, speedy,
and adequate remedy by appeal. Id. at 608. A separate par-
tial concurrence arrived at the same conclusion, but focused
on whether the appellate remedy was plain. Id. at 631-44
(Durham, J., concurring in part and dissenting in part). That
opinion stated, "[T]he existence of genuine uncertainty about
whether the state legally was entitled to appeal regarding
[the] asserted legal error means that an appeal was not a
plainly available remedy in the ordinary course oflaw." Id. at
637 (emphasis added). In State ex rel. v. Dobson, 171 Or 492,
499, 135 P2d 794, 137 P2d 825 (1943), the court quoted 38 CJ
561 with approval and stated that, " 'where it is doubtful
whether or not there is an adequate specific remedy in the
ordinary course of law, mandamus will ordinarily issue.' "
(Emphasis added.) Based on the foregoing, we conclude that
a "plain" remedy is one that is obvious, clear, and without
uncertainty. 8 "Plain" does not mean, however, that the rem-
edy needs to be successful or meritorious for the relator;
instead, it requires only that the availability of the remedy be
obvious or clear.
not at issue in this case. Relators do not argue that a declaratory judgment action
is not a speedy remedy. We therefore focus on the meaning of the words "plain" and
"adequate."
8 The dictionary definition is consistent with that interpretation. Plain means
obvious or clear. Webster's Third New Int'l Dictionary 1729 (unabridged ed 2002).

272 	State ex rel Dewberry v. Kulongoski
On several occasions this court has also discussed
the requirement that a legal remedy be "adequate." In State
ex rel. Ricco v. Biggs, 198 Or 413, 425, 255 P2d 1055 (1953),
the court explained that, "to bar mandamus, the law remedy
must afford all relief to which the plaintiff is entitled." A writ
of mandamus may issue even when other remedies exist, if
the other remedies are inadequate or not sufficiently speedy.
Id.; see also Dobson, 171 Or at 499 (" 'The mere fact that there
is another remedy will not prevent the issuance of the writ of
mandamus ifthe other remedy is not adequate[.]'") (quoting
38 CJ 561). An adequate remedy must provide "relief upon
the very subject matter of the application, and be equally con-
venient, beneficial, and effective." State ex rel. 	Pierce v.
Slusher, 117 Or 498, 501, 244 P 540 (1926) (internal quota-
tion marks and citation omitted) (emphasis added). An ade-
quate remedy, therefore, is a remedy that is sufficient and as
equally convenient and effective as mandamus. 9 As with
"plain," "adequate" does not require a remedy to be meritori-
ous for the relator.
To 	determine 	whether 	a 	declaratory 	judgment
action in this case is "plain" and "adequate," we must review
the declaratory judgment statute. Under the declaratory
judgment statute, courts "shall have power to declare rights,
status, and other legal relations, whether or not further relief
is or could be claimed." ORS 28.010. Regarding parties to
declaratory judgment actions, 	another 	statutory section
provides:
"When declaratory relief is sought, all persons shall be
made parties who have or claim any interest which would
be affected by the declaration, and no declaration shall prej-
udice the rights of persons not parties to the proceedings.
* * *''
ORS 28.110 (emphasis added). The statute defines "person"
as "any person, partnership, joint stock company, unincor-
porated association or society, or municipal or other corpora-
tion of any character whatsoever." ORS 28.130. It is undis-
puted that the Tribes are persons who would be required to
be made parties under ORS 28.110, because, as parties to the
9 The dictionary defines adequate as sufficient. Webster's at 25.

Cite as 346 Or 260 (2009) 	273
gaming compact, the Tribes have an interest that would be
affected by any declaration as to the governor's authority to
enter into the compact. It also is undisputed that the Tribes
would be entitled to assert sovereign immunity in that
declaratory judgment action. See, e.g., Chance v. Coquille
Indian Tribe, 327 Or 318, 321, 963 P2d 638 (1998) ("As
'domestic dependent nations' with sovereign authority over
their members and territories, Indian tribes are immune
from claims in state and federal courts.") (citations omitted).
In fact, the Tribes did assert sovereign immunity in the
declaratory judgment action that relators filed after the
trial court granted the state's motion to dismiss the manda-
mus petition, and the federal district court dismissed rela-
tors' claims against the Tribes on that ground. Dewberry, 406
F Supp 2d at 1146.
Under those circumstances, a declaratory judgment
action is neither a plain nor adequate alternative remedy. As
we stated above, a plain remedy is one that is obvious, clear,
and without uncertainty. Under ORS 28.110, the Tribes
would be required to participate in any declaratory judgment
action. In fact, as the Court of Appeals noted, ORS 28.110
sets forth a jurisdictional requirement. See Stanley, Adm. v.
Mueller, 211 Or 198, 202, 315 P2d 125 (1957) ("[C]ourts have
no authority to make a declaration unless all persons 'who
have or claim any interest which would be affected by the
declaration' are parties to the proceeding.") (quoting ORS
28.110). Therefore, if the Tribes chose not to participate by
invoking sovereign immunity, a court would be entirely with-
out authority to decide the case. That the Tribes alone pos-
sess the authority to determine whether a declaratory judg-
ment action proceeds to the merits makes the availability of a
declaratory judgment remedy uncertain and unclear. We
therefore conclude that a declaratory judgment action is not a
plain remedy for relators.
Similarly, a declaratory judgment action does not
provide relators with an adequate remedy. To be adequate, a
remedy must afford to the relators all relief to which they are
entitled. Ricco, 198 Or at 425. That remedy must also be "con-
venient, beneficial, and effective." Pierce, 117 Or at 501 (inter-
nal quotation marks and citation omitted). For the same rea-
son that a declaratory judgment action is not a plain remedy,

274 	State ex rel Dewberry v. Kulongoski
a declaratory judgment action is not convenient or effective:
the Tribes alone control the availability of that remedy. As
noted earlier, the definition of adequate, of course, does not
require that relators prevail on the merits when seeking the
alternate remedy. However, because the Tribes control its
availability, a declaratory judgment action would not afford
relators any relief and is therefore not an adequate remedy at
law that would prevent relators from pursuing mandamus
relief.
A mandamus action is a special proceeding used to
compel a government official to perform a legal duty. ORS
34.110. The only party that a relator must join in a manda-
mus proceeding is the government official with the alleged
duty of performance. ORS 34.130(2). A declaratory judgment
action, on the other hand, is an action to declare "rights,
status, and other legal relations[.]" ORS 28.010. A plaintiff in
a declaratory judgment proceeding must join all parties who
claim an interest that would be affected by the declaration.
ORS 28.110. We acknowledge that a declaratory judgment
may achieve a similar result to a writ of mandamus in certain
cases. In this case, however, a declaratory judgment action is
neither a plain nor adequate alternative to a mandamus pro-
ceeding for compelling the Governor to perform his official
duty with regard to the gaming compact. 10
The decision of the Court of Appeals is affirmed. The
case is remanded to the trial court for further proceedings.
10 We reserve for future decision whether a declaratory judgment action can, in
other circumstances, be a plain and adequate remedy at law.