dissenting.
This case involves a routine discovery dispute of the kind that circuit courts consider and resolve every day. The relevant statutes provide a method for a circuit court to resolve it. The majority holds, nevertheless, that, because this dispute is part of an ongoing contested case proceeding before an administrative agency, petitioner may bring it to this court for resolution. As a result of the majority’s decision, the parties must now follow formal appellate procedures rather than the relatively informal give and take that characterizes circuit court consideration of discovery issues and that often leads to a solution that all parties can accept. Under appellate procedures, the parties must file formal briefs and will need to argue their positions to a panel of three judges. That panel may write a published opinion and will certainly do so for any disposition other than affirming the agency’s order. Until this court acts, the contested case hearing that gave rise to this dispute will remain in limbo.
The issues that this court must decide as a result of the majority’s decision may require taking evidence on disputed factual issues and designing and entering an appropriate protective order. Those are things that are beyond the normal scope of an appellate court’s activities. Under the majoritys view, we will have to apply appellate procedures and time schedules, which are collegial, deliberative, and *579designed for reaching decisions based on an existing record, to a decision that requires speed, flexibility, and the capability to take evidence, characteristics that are among the strengths of a trial court. We should not lightly decide that the legislature has allowed petitioner to require this court to take on a role for which it is poorly suited. In fact, the relevant statutes show that the legislature intended disputes of this nature to go to the circuit courts for decision and that it provided a specific procedure for the parties and the circuit courts to follow. In my view, the majority approach is not required by the applicable statutes and is not the best answer to this question. This matter belongs in circuit court.
The first issue is the relationship between the two methods that the legislature has provided for reviewing administrative decisions. In construing the relevant provisions of the Administrative Procedures Act (APA), the majority looks at certain isolated words and phrases rather than considering the structure of the act as a whole. The foundation of that structure begins with ORS 183.480, which provides, in pertinent part:
“(1) Any person adversely affected or aggrieved by an order or any party to an agency proceeding is entitled to judicial review of a final order, whether such order is affirmative or negative in form. * * *
«H* * * *
“(3) No action or suit shall be maintained as to the validity of any agency order except a final order as provided in this section and ORS 183.482, 183.484, 183.490 and 183.500 or except upon showing that the agency is proceeding without probable cause, or that the party will suffer substantial and irreparable harm if interlocutory relief is not granted.” (Emphasis supplied.)
This statute makes it clear that the primary requirement for judicial review of agency action is that the agency have finished acting: There must be a final order, which is “final agency action expressed in writing.” ORS 183.310(5)(b). The statute allows review of an interlocutory order only under exceptional circumstances.1
*580This requirement of finality provides the context for evaluating the two methods that chapter 183 provides for reviewing agency orders. The essential distinction between those methods is which court has jurisdiction to review; the distinction between the courts is based on the functions that each is best suited to fill. ORS 183.482(1) confers jurisdiction for “judicial review of contested cases” on the Court of Appeals. Review under ORS 183.482 is on the record; there is no provision for taking additional evidence or making findings on the substantive issues. Rather, if an evidentiary issue arises, we may remand the case to the agency to take additional evidence and to make any modifications to its findings that it considers proper. ORS 183.482(5). 2
Although ORS 183.482 does not expressly limit review to final orders, that conclusion is implicit in every aspect of the statute. Jurisdiction is over the entire case, not some preliminary part of it. A petition for review must be filed “within 60 days only following the date the order upon which the petition is based is served”; the date of service is “the date on which the agency delivered or mailed its order in accordance with ORS 183.470.” ORS 183.482(1). A final order is the only kind of order that ORS 183.470 requires the agency to deliver or mail, ORS 183.470(3), and it is the only kind of order that must include a citation of the statutes under which the order may be appealed. ORS 183.470(4). The provisions for staying an agency order are relevant only to an order that expresses final agency action and thus is final. See ORS 183.482(3). The formal requirements for a petition for review assume that the administrative proceeding is concluded, which for a contested case means the entry of a final order. Thus, the petition must state “whether the petitioner was a party to the administrative proceeding, was denied status as a party” or is otherwise adversely affected or aggrieved. ORS 183.482(2) (emphasis supplied).
*581In short, the structure of ORS 183.482 is for review on the record of final orders. It does not fit the requirements for reviewing interlocutory orders in ongoing proceedings. In contrast, ORS 183.484 is carefully designed for the review of interlocutory orders as well as of final orders in noncontested cases. It grants jurisdiction for review of “orders” rather than of entire cases. ORS 183.484(1). The petition must include “facts showing how the petitioner is adversely affected or aggrieved” by the order, ORS 183.484(3) (emphasis supplied), a phrase that is not limited to a completed proceeding. The court is to conduct the judicial review as a proceeding without a jury, ORS 183.484(3). Unlike ORS 183.482(4), there is no express provision for the agency even to submit an administrative record. Rather, if the court reverses the agency decision it shall “make special findings of fact based upon the evidence in the record,” ORS 183.484(5), which necessarily may include evidence that the court took during the course of the review. That is, the court, rather than the agency, may make the record and find the relevant facts. The purpose of circuit court review, thus, is to place the decision of questions that may require additional evidence and factual resolution in a court that is equipped to take that evidence and resolve those questions.
In Bay River v. Envir. Quality Comm., 26 Or App 717, 721, 554 P2d 620, rev den 276 Or 555 (1976), we summarized the effect of ORS 183.482 and ORS 183.484 by stating that if an administrative order “is at the culmination of a contested case hearing, appeal [sic] is to this court; if the order is made in any other context, appeal [sic] is to the circuit court.” As this analysis of the structure of the statutes shows, that statement was correct. The provision in ORS 183.482(1) conferring jurisdiction “for judicial review of contested cases” on this court, thus, means jurisdiction over the entire case, and the court cannot have that jurisdiction until the case is concluded by the issuance of a final order.
The cases on which the majority relies do not affect this conclusion. In Hay v. Dept. of Transportation, 301 Or 129, 136, 719 P2d 860 (1986), the issue was whether the plaintiffs could challenge an administrative rule in a civil action in circuit court. The Supreme Court did not need to *582consider the issue before us in its passing discussion of the distinction between ORS 183.482 and ORS 183.484. Patton v. St. Bd. Higher Ed., 293 Or 363, 366, 647 P2d 931 (1982), involved whether a final order placing a student on mandatory medical leave was the product of a proceeding that should have been a contested case. Neither of these cases decides that this court, rather than the circuit court, has jurisdiction to review an interlocutory order in a contested case.
Even if ORS 183.480(3) might otherwise give this court jurisdiction to review interlocutory orders in a contested case, petitioners have failed show that they will suffer the substantial and irreparable harm that the statute requires3 because there is a remedy available to them other than direct review by this court of the agency order. ORS 183.440 establishes a procedure by which a circuit court can resolve disputes over agency subpoenas, thus providing an adequate alternative to interlocutoiy judicial review. ORS 183.440(2) provides the means for enforcing administrative subpoenas: “If any person fails to comply with any subpoena so issued * * * the judge of the circuit court of any county, on the application of the agency * * * or of the party * * * shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court * * (Emphasis supplied.)
The majority states that ORS 183.440 does not provide an adequate remedy to petitioners because it does not create a method to obtain a declaratory ruling as to the validity of the subpoena. It treats the statute as merely providing a method for enforcing an administrative subpoena. The majority fails to recognize that refusing to comply with a subpoena in order to obtain a ruling on its validity is a normal and accepted practice that is available to petitioners under this statute. It is the simplest and most effective way to move the issue out of the agency and bring it before a court. We essentially held as much in School Dist. No. 1 u. Nilsen, 7 Or App 396, 490 P2d 1265 (1971), rev’d 262 Or 559,499 P2d 1309 (1972). In that case, the subpoenaed party sought a writ *583of prohibition against enforcement of a subpoena duces tecum that the Commissioner of the Bureau of Labor had issued during the course of a contested case proceeding. As in this case, the subpoenaed party asserted that the subpoena was invalid and overbroad. Although we affirmed the trial court’s issuance of the writ, we noted that the subpoenaed party did have an alternative remedy to avoid the harm involved in complying with the subpoena, “namely, to refuse to obey the subpoena and force the Commissioner to seek judicial enforcement through contempt.” School Dist. No. 1, 7 Or App at 410. We stated that the usual practice to enforce an administrative subpoena is “for the petitioned court to hold a show-cause hearing on whether respondent should be held in contempt.” Id. at 410 n 7.
The dissent in School Dist. No. 1, believing itself to be in agreement with the majority on this point, emphasized that the school district had an adequate remedy at law by refusing to obey the subpoena and requiring the Commissioner to bring an enforcement proceeding under ORS 183.440. It pointed out that “[a]n evidentiary hearing is the proper and usual procedure to thresh out disputes as to the permissible scope of a subpoena duces tecum.” School Dist. No. 1, 7 Or App at 413. In reversing our decision, the Supreme Court discouraged the use of a writ of prohibition to test the scope of an administrative subpoena, pointing out the delays that that procedure necessarily involved. School Dist. No. 1, Mult. Co. v. Nilsen, 262 Or 559, 571-72, 499 P2d 1309 (1972). Its action did not question our discussion of the alternative remedy of a contempt action.
These opinions, at the least, strongly suggest that ORS 183.440 provides the sole procedure for testing the scope of an administrative subpoena. In this context, ORS 183.480(3) is comparable to the writ of prohibition in School Dist. No. 1, while ORS 183.440 continues to provide the alternative remedy that we described in 1972.
Recent cases involving the appealability of trial court decisions illustrate the appropriate use of contempt proceedings to challenge orders requiring the production of information. The Supreme Court has made it clear that a person who is held in contempt may challenge the merits of the *584underlying order when there is no other practical way to do so, by appeal, mandamus, or otherwise. State v. Crenshaw, 307 Or 160, 167-68, 764 P2d 1372 (1988).
The court has also shown that, for practical purposes, the effect of a finding of contempt in these circumstances is simply to provide an appealable judgment. There will be no other consequences if the person complies with the the ultimate decision. Thus, when the person has no practical opportunity to challenge the order before complying or refusing to comply, and the order is erroneous, the judgment of contempt should be set aside. State v. Keenan / Waller, 307 Or 515, 518, 771 P2d 244 (1989). If the court upholds the challenged order, the judgment of contempt should be vacated upon compliance.4 Id. at 524 (Gillette, J., concurring).
The most recent case on this question is also the most directly on point. In Dept. of Rev. v. Universal Foods Corp., 311 Or 537, 815 P2d 1237 (1991), the Supreme Court held that it had no jurisdiction over a direct appeal from a Tax Court order enforcing an administrative subpoena against a corporation. In Dept. of Rev. v. Universal Foods Corp., 318 Or 78, 862 P2d 1288 (1993), it thereafter held that the corporation could challenge the validity of the Tax Court order by allowing itself to be held in contempt for refusing to comply and appealing the subsequent judgment. The defendants showed that they had no practical opportunity to challenge the order before complying and that the disclosure involved in compliance would itself constitute irremedial harm. Id. at 85.
Oregon law thus contemplates the use of contempt proceedings as a proper method to challenge the validity of trial court discovery orders. By refusing to comply with the challenged subpoenas and requiring respondent to seek enforcement under ORS 183.440(2), petitioners can obtain a judicial determination of the validity of the subpoenas and *585the trial court will be able to make appropriate modifications and enter an appropriate protective order if those actions prove necessary. We would review any appeal from that decision over which we had jurisdiction on the record made in the trial court. In my view, because this alternative is available, petitioners cannot show the substantial and irreparable harm that is necessary to jurisdiction under ORS 183.480(3).
For these reasons, I respectfully dissent.
Warren, Riggs and De Muniz, JJ., join in this dissent.ORS 183.480(3), indeed, is written as a limitation on, rather than a grant of, jurisdiction to determine the validity of interlocutory orders. However, dictum, in a *580number of cases treats it as a grant of jurisdiction and for the purposes of this dissent I accept that construction.
The only exception concerns allegations of procedural irregularities before the agency; we may refer those allegations to a special master and make appropriate findings. However, if we conclude that irregularities may have affected the fairness of the proceedings or the correctness of the action, we do not act ourselves but rather remand the case for further agency action. ORS 183.482(7).
Petitioners do not assert that the agency is proceeding without probable cause.
This approach is consistent with federal law. Thus, the proper method for an attorney to challenge a federal subpoena requiring the attorney to surrender client documents is to refuse to comply. An appeal of the resulting contempt judgment for refusal to comply “is both the statutory way and the orderly way to bring a question of this character before the court of appeals.” United States v. Lowthian, 575 F2d 1292, 1293 (9th Cir 1978).