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Home My WebLink About2021-09-14 K. Katzaroff - Response to N. Gould Request1 Chenelle Hale From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com> Sent:Tuesday, September 14, 2021 4:51 PM To:William Groves Cc:Schunk, Andrea K.; liz@lizfancher.com; Kameron DeLashmutt Subject:File 247-21-000-731-A; Response to Request to Open Record [IWOV-pdx.FID4649055] Attachments:Response to Request to Open Record.pdf [EXTERNAL EMAIL] Will – Please include the attached letter for the above referenced file. The letter responds to Gould’s request to reopen the record. Thanks, Ken Schwabe Williamson & Wyatt Kenneth Katzaroff Attorney Direct: 206-405-1985 kkatzaroff@schwabe.com Admitted in Washington and Oregon. LEARN HOW OUR CLIENTS ARE INNOVATING IN THEIR INDUSTRIES: www.schwabe.com/fueling-change __________________________________________________________ NOTICE: This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. U.S. Bank Centre | 1420 5th Avenue | Suite 3400 | Seattle, WA | 98101-4010 | M 206-622-1711 | F 206-292-0460 | schwabe.com Kenneth Katzaroff Admitted in Washington and Oregon T: 206-405-1985 C: 206-755-2011 KKatzaroff@SCHWABE.com September 14, 2021 VIA E-MAIL Hearings Officer Frank c/o Will Groves, Senior Planner Deschutes County Community Development 117 NW Lafayette Ave. Bend, OR 97703 RE:Deschutes County File Nos. 247-21-000731-A, 18-386-TP, 18-454 -SP, 18-542- MA; Remand of LUBA No. 2018-140; Court of Appeals A171603. Our File No.: 135849-262760 Dear Hearings Officer Frank: As you know, this office is co-counsel for the applicant (“Thornburgh”) in the above-referenced matters. This letter responds to Ms. Gould’s request, by and through her lawyer, Jeffrey Kleinman, to reopen the record, in his letter dated September 13, 2021. Response to Record Request by Gould Ms. Gould requests that the hearings officer reopen the record to allow a response to rebuttal evidence submitted by Ms. Fancher during the rebuttal period. In particular, Mr. Kleinman states that the “request of assignment” documents are new and not rebuttal. Kleinman Letter, p. 1. Mr. Kleinman cites ORS 197.763 in support of his request. This hearings officer should deny the request. This hearings officer established a standard 7-7-7 record period. This includes a 7-day open record period, a 7-day rebuttal period, and then 7-days for the applicant’s final legal argument. Thornburgh complied with those procedural rules. At the August 24, 2021 public hearing, Mr. Kameron DeLashmutt, principal of Thornburgh, stated that the resort had closed on a portion of the Big Falls Ranch (“BFR”) water right, as required by the Fish and Wildlife Mitigation Plan, and that an assignment of those water rights had been filed with the Oregon Water Resources Department (“OWRD”) from BFR to Thornburgh.1 Ms. Gould chose not to respond to that statement at the hearing and instead requested that Thornburgh “prove” that it owns the water right, and that the hearings officer force Thornburgh to disclose the full terms of the contract to purchase with BFR. 1 Assignment was to an affiliate of Thornburgh. Hearings Officer Frank September 14, 2021 Page 2 schwabe.com During the open record period, multiple letters from Ms. Fancher, Mr. DeLashmutt, Ms. Neuman, and Mr. Newton again stated that relevant portions of the BFR water rights had been closed on and assigned to Thornburgh. During that same period, numerous opponents argued that the applicant should be required to prove that it had secured mitigation water rights. For their part, during the open record period, Mr. Kleinman argued that “[i]f the applicant has adequate mitigation water from BFR, as they contend here, what is the problem with proving it in that proceeding.” Kleinman Letter, p. 2. Mr. Kleinman goes on to argue that Thornburgh “contends it will obtain” the rights but that it had not yet done so. Id. p. 3. In direct rebuttal to these claims, and as is allowed by the procedures outlined by the hearings officer, Thornburgh submitted rebuttal evidence that included the actual assignment documents to refute Mr. Kleinman’s claims that Thornburgh had not proven it owned the mitigation water. Mr. Kleinman’s request now to reopen the record to respond because of “new evidence” is therefore without merit – the evidence submitted by Ms. Fancher is clearly rebuttal evidence that responds to Mr. Kleinman’s claims and confirms Mr. DeLashmutt’s testimony that Mr. Kleinman questions. It, therefore, is allowed and is not new evidence – just more of the same evidence presented at a time when opponents had an opportunity to respond. DCC 22.24.140(D). Mr. Kleinman’s citation to ORS 197.763(6)(c) does not help his argument. ORS 197.763, by its plain language, relates to the initial evidentiary hearing only and not to proceedings on remand. To the extent Ms. Gould might attempt to argue some procedural error based upon its record request, that argument is also without merit. The proposed “rebuttal to water right assignments” by Mr. Anuta is an attempt at introducing surrebuttal, which should not be included in the record here, and for which no requirement in state law or otherwise exists. LUBA has opined that "there is no unlimited right to rebut rebuttal evidence, and Fasano does not require endless opportunities to rebut rebuttal evidence." Rice v. City of Monmouth, 53 Or LUBA 55, 60 (2006), aff'd 211 Or App 250, 154 P3d 786 (2007). Ms. Gould’s claim of right to surrebuttal is not supported by the law. Further, the surrebuttal makes legal arguments that could have (and should have) been made by Ms. Gould’s team during its open record or rebuttal submittals. Thornburgh stated on the record at the public hearing that such assignment had occurred and reiterated that fact during the open record period. For whatever reason, Ms. Gould and her team chose not to respond to that claim of assignment other than to say “where is the proof”? An attempt by her team to make legal arguments based upon the assignments now, should be rejected. Mr. Anuta’s “rebuttal” is also not rebuttal to the assignments despite its title. Mr. Anuta attempts to further arguments submitted by Ms. Gould’s team but that have no relation water right assignments that Mr. Kleinman references in his request. See Anuta Letter, p. 2 (discussing analysis by Mr. Lambie regarding wells, springs, and surface water). This should not be allowed. Hearings Officer Frank September 14, 2021 Page 3 schwabe.com If the hearings officer nevertheless agrees that the assignment documents are “new evidence” and not rebuttal to Ms. Gould’s request for proof, Thornburgh requests that the record be extended for 7-days following the hearings officer’s order to provide final legal argument. Lastly, Mr. Kleinman’s citation to ORS 197.763(7) is telling. Although his letter purports to only wish to reopen the record for the limited purpose of including Mr. Anuta’s surrebuttal, it nevertheless could encourage other parties to make similar requests or require broader response. That should not be allowed. Further compressing the amount of time legally allowed for the County to reach a decision on this matter (120 days). ORS 215.435. Allowing Ms. Gould’s request could therefore preclude any potential appeal by Ms. Gould or Thornburgh to the BOCC, should either party wish to do so. Thornburgh submits that this could create procedural error and should be avoided. Conclusion Thornburgh requests that the hearings officer deny Ms. Gould’s request. The evidence of assignment was submitted in direct response to Ms. Gould’s claims and is therefore allowed as rebuttal. Nothing provides Ms. Gould the right of surrebuttal. Ms. Gould’s team failed to make argument based upon the disclosed assignments and attempts to improperly wedge additional argument in now. That attempt should fail. Very truly yours, SCHWABE, WILLIAMSON & WYATT, P.C. /s/ Kenneth Katzaroff Kenneth Katzaroff PDX\135849\262760\JKKA\31730782.1