dissenting.
The threshold issue in this case is whether the phrase “gear or equipment,” which appears in the civil forfeiture statute, ORS 506.655, includes boats. I believe it does not. A review of the legislative history of the forfeiture statutes supports a definition of “gear or equipment” that excludes boats.
From 1921 through 1965, all “fish traps, poundnets, gillnets, set nets, fish wheels, fishing boats and vessels used in fishing and apparatus” were referred to as “appliances” and could be civilly or criminally forfeited. See, e.g., OCLA 83-318. When the civil and criminal forfeiture statutes were amended in 1965, the term “appliance” was replaced by the terms “gear and equipment” to describe the property that could be civilly forfeited. Former ORS 506.575 (renumbered ORS *433506.655 in 1965). The statute does not define “gear or equipment.”
At the same time that the civil forfeiture statute was amended, changes were made to the criminal forfeiture statute. Before its amendment in 1965, ORS 506.603(1) described the property forfeitable after a conviction as “boats, nets, traps or other fishing apparatus, implements or gear.” In the 1965 amendments, the property that could be criminally forfeited was described as “boats, fishing gear and vehicles.” ORS 506.603(1) (renumbered ORS 506.695(1) in 1977).
The majority’s reading of the statute requires us to make two leaps of faith. The first leap is that, in 1965, the legislature used “gear or equipment” to mean exactly what “appliance” meant between 1921 and 1965. However, we must assume that, when the legislature uses different statutory provisions, it intends different meanings. See State v. Wright, 112 Or App 567, 570, 829 P2d 93, aff’d 315 Or 124, 843 P2d 436 (1992). The second leap of faith is that the terms “boats, fishing gear and vehicles,” as used in the criminal forfeiture statute, ORS 506.695(1), mean exactly what “gear or equipment” means in ORS 506.655 and exactly what “appliance” meant in the old civil forfeiture statutes. See, e.g., OCLA 83-318. Again, the use of different terms must have significance. State v. Wright, supra.
Without legislative history or case law to guide us, defining the term “gear or equipment” is like teaching a fish to ride a bicycle: very difficult. However, whatever the phrase “gear or equipment” means, it apparently excludes boats. The term “boat” appears three times in the statutory scheme, suggesting that, when the legislature deemed forfeiture of a boat appropriate, it used the term “boat.” See ORS 506.006(2); ORS 506.695(1); ORS 506.991(5).
Because ORS 506.655, the civil forfeiture statute, does not appear to authorize the civil forfeiture of boats, I do not believe that we need to reach the constitutional issues raised by defendant. Were we to reach them, I would agree with the majority that civil forfeiture of the boat under ORS 506.655 may constitute double jeopardy and that remand is appropriate.
For these reasons, I dissent.