HomeMy WebLinkAbout2021-11-12 Katzaroff Documents for Record -553, 920-A1
Tracy Griffin
From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>
Sent:Friday, November 12, 2021 2:35 PM
To:Angie Brewer
Cc:'Kameron DeLashmutt'; liz@lizfancher.com; Schunk, Andrea K.
Subject:Documents for Record -553-SP; 920-A [IWOV-pdx.FID4723617]
Attachments:Documents for Record -553-MC; -920-A.docx.pdf
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Angie –
Please include the attached in the record for File Nos. 247-21-000553-MC; -920-A. We will be submitting a hard copy as
well.
Thanks,
Ken
Schwabe Williamson & Wyatt
Kenneth Katzaroff
Attorney
Direct: 206-405-1985
kkatzaroff@schwabe.com
Admitted in Washington and Oregon.
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1 -
DOCUMENTS FOR RECORD
247-21-000553-MC; -000920-A
Dated: November 12, 2021
EXHIBIT A: ISSUES BARRED UNDER THEORY OF COLLATEML ATTACK
Following are the 17 categories of items that opponents raised in this proceeding that were
resolved in the CMP (items 1 ,2,3,3A, 5, 8, g, 10, 1 1, j2, 13, 14, 15,16 & 17) and FMp (items
4,6 & 7) and are barred as lmproper Collateral Attacks, as described in the Decision, which
generally says that: lssues that were raised and resolved or could have been raised about an
issue during the review of the CMP/FMP may not be raised during subsequent proceedings
including the review of the golf course site plan and should be rejected. Further details of
these "barred" issues can be found on Ex. 48: Applicants Comments Chart, Sections 1-17.
Many of Opponents claims in this and past proceedings, including all of the claims listed in
#1-5 below relate to water, that it is not available, that Applicant does not have it, cannot use
it, or that it is not adequate in some way. The 2008 Hearing Officer found the OWRD water
rights process is the only way to determine whether mitigation water is returned to the
streams. The Board concurs, finding, save for the limited role afforded the County by
Condition 10 and the FWMP, that the oWRD is the authority which governs the Resorts water
use and mitigation. And, that it is OWRD, and not the County that will administer and monitor
whether the Resort has adequate water, including mitigation water for the Resorts
development going forward. ln spite of the limited role the County has, the following issues
are the "wate/'issues Opponents raise here:
1. Availability of Water - CMP: 18.113.070(K) reads, in part:
Adequote wqter will be ovqllqble for oll proposed uses ot the resort, bosed upon the
water study ond o proposed woter conseruqtion plan. Woter use will not reduce the
avotlobiltty olwoter ln the woter lmpoct oreos tdentifted tn the woter study considering
existing uses ond potentlol development prevlously opproved ln the oreo.
The Board finds issues related to water availability for all the Resorts proposed uses are CMp
criterion resolved by approval of the CMP. Any further attack is an impermissible collateral
attack. Because the Applicant is using water for an approved use and is not proposing
changes to the prior approvals, no further actions are required by the County to comply with
this settled issue. The Board finds the Opponents claims are not applicable to any relevant
site plan approval criteria. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims regarding water availability include:
a. Water availability has not been proven.
b. The applicanfs assets, including water rights, are secured for loans.
c. A lake by deflnition is filled with water.
d. The Resort does not have the water to fill the lakes, water the ground, or provide
the needed fire flow.
e. The amount of water needed for the lakes may not be correct.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBtT A Page 1 of 22
f. CMP Studies finding no impact on neighboring wells are false, the water table is
dropping, our wells will be impacted, occupancy rates will increase usage.
g. Watering a golf course is a waste of the resource, and the area does not have
enough water for this use.
h. The golf course, the lakes, and the water for them as well as their construction
and maintenance, was not approved in earlier proceedings.
i. Any issue related to water is not a collateral attack.j. The decision was flawed to find compliance with 18.1 13.070(K).
lssues raised by: N. Gould, N. Engebretson, Ambers, P. Geiser, D. Stout, P. Lipscomb,
COLW, G. Burton, H. Lonsdale, M. Saslow, andJ. Kleinman.
The Applicant responded:
18.1 13.070(K) required the water study to obtain approval of the CMP which needed
to include water for all proposed uses at the resort. The CMP application (and water
study) and the resulting approval included 3 golf courses plus ancillary golf facilities,
up to 77 acres of lakes, along with the maintenance, evaporation, and construction
needs of the resort (See Ex. 30, Board CMP Dec., Pgs. 5-9). ln the 2006 CMP
proceedings the Board found the resort's source of water is ground water from the
regional aquifer and that the applicant submitted the required water study which
demonstrated that adequate water is available for the entire Thornburgh Resort
project. Applicant also submitted a copy of its application to OWRD and a letter from
Dwight French, OWRD to the record of the CMP, confirming that ground water was
available for the project. and that, the proposed use of ground water from new wells
was not expected to interfere with other existing ground water uses. The Board noted
the OWRD conclusions were "supported by conclusions reached in the Water
Study submitted by Applicant, and in the report prepared by Eco: Logic on
behalf of the proJect opponents." The Board added that "[b]ased on this
information, Applicant demonstrated that ground water is available...." and "the
water availabillty standard has been satisfled by the Applicant." See Ex. 30, CMP
Board Pg.23. Also, Opponents has not cited to relevant approval criterion and that
the claims are not relevant to the approval of this site plan.
While no further evidence or argument is needed for this site plan approval for these issues,
the Board finds that Applicant has met the standard. The evidence shows the uses proposed
by this site plan were previously approved, that Applicant has provided an accounting of the
water required for the proposed and approved uses including the water needed for the
maintenance and evaporation of the lakes which is based on amounts from the water study,
the total water demand is less than the 2,129 acre-feet the Applicant is permitted to pump.
See Ex. AA. Further, Jan Neuman, Applicant's water rights counsel states Applicant has
hundreds of acres of water rights the resort could use for the project. See Applicants Ex. O,
& Ex. 18, Neuman Letters.
2. Availability of Mitigation Water - CMP. 18.113.070(K).
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page2of 22
The Board finds the issues related to availability of mitigation water for all the Resort's
proposed uses are CMP criteria that were resolved by approval of the CMP. Any further
attack on them is an impermissible collateral attack on the CMP. Because the Applicant is
using water for an approved use that is not proposing any change to the prior approvals, no
further actions are required by the Applicant to comply with this settled issue. Further, the
Board finds that the Opponent claims are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims regarding the availability of mitigation water include:
a) The 2OO7 Big Falls Ranch (BFR) agreement was revoked, and Applicant refuses to
show the new agreement with BFR.
b) The applicant's assets, including any alleged mitigation water is secured for loans.
c) The applicant does not have mitigation water now, it has not registered mitigation
water with OWRD.
d) Applicant only has temporary mitigation credits.
lssues raised by: N. Gould, COLW D. Arnold
The Applicant responded:
The claims that "applicant needs to have mitigation water to obtain land use
approvals, or that it has not shown mitigation water is available" were made and
resolved numerous times, beginning 15 years ago with the approval of the CMP in
front of the Hearing Officer. Then applicant provided information mitigation water
was available for purchase from numerous sources including Big Falls Ranch,
Deschutes Resource Conservancy, COID and the McCabe Trust. Applicant provided a
Memorandum of Agreement evidencing its Option to purchase water from Big Falls
Ranch but did not provide the agreement itself. Gould argued applicant was required
to provide copies of the actual agreements it had for mitigation water. The Board, in
its 2006 decision denied Gould's claim, noting this was a bigger policy question; "The
question before the Board lBoard] is whether, in order to demonstrate that
water is "available" under the county standard, an Applicant must provlde
evidence of actual mitigation credits at the time of county revieq or whether
it is sufflcient to demonstrate that lt is feasible for Applicant to obtain sufficient
credits by the time the credits are ultimately required under the OWRD water
right process." See Ex.30, Board CMP Dec. Excerpts, Pg.24
ln determining the county's standard the Board looked to LUBA's Boumon v. Jackson
County,23Qr LUBA 628,647, decision and interpreted the Countystandard to require
no more than what Boumon required, namely that a decision approving the
application simply requires that there be substantial evidence in the record that
Applicant is not precluded from obtaining the required mitigation [water rights
permitsl. The Board went on to say that: "even if the standard were interpreted to
require more it certainly would require no more than a showing that the
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-'19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 3 of 22
acquisition of the necessary mitigation credits is feasible. Such a showing can
include evidence that mitlgation water is generally available in the basin and
that the Applicant has a reasonable plan for acquiring mitigation from available
sources." See Ex. 30, Board CMP Dec. Excerpts, Pg.24. The Board approved the CMP
because Thornburgh had made both showings; settling the issue of whether
mitigation water is available for the Resort's use and that it had a reasonable plan.
The issue of whether a mitigation purchase agreement must be provided to the
County was specifically addressed and resolved against Gould. Gould argued "that
Applicant is required to provide copies of the option or purchase agreements
described by Applicant in materials filed with owRD and the county.,, ln
response, the Board said "the Board disagrees such documentation is required.....
the evidence that mitigatlon water will be available is overwhelming without
the need to have copies of the actual option or purchase agreements in the
record." The Board concluded Applicant easily met the required standard noting
Applicant's evidence of the option agreement with Big Falls, which was confirmed by
Rex Barber, President of BFR See Ex. 30, Board 2006 CMP Dec. Excerpts, pg.27 .
The Board finds the evidence shows the Applicant has met the standard to show it has the
mitigation water available that it will need to mitigate for the amount of water required when
needed for this site plan. The Applicant provided a current recorded Memorandum of
Agreement evidencing its purchase contract (not Option agreement) with Big Falls Ranch (See
App. Ex. T, Memorandum of Agreement with BFR). Applicant's water counsel Jan Neuman
verified the MOA s existence, and that it was for f ar more water than is needed for all of the
resorts Phase A water mitigation needs, which was also conflrmed by Rex Barber, President
of BFR, and Liz Fancher, Applicant's land use counsel. See App. Ex. U-2, Neuman Letter
9124118, App. Ex. 19, Liz Fancher memo.
3. CMP Condition 10: This condition states:
10. Applicont shall provide, ot the time of tentotive plotlsite plon review lor eoch
individuol phose of the resort development, updoted documentotion for the state
woter right permit ond qn occountlng oI the full omount of mittgation, os required
under the woter right, for thot individuol phose.
The Board finds the issues related to the interpretation of Condition 10 was resolved by
approval of the CMP and any attack on Condition 10 is an impermissible collateral attack on
the CMP. Because the Applicant is using water for an approved use that is not proposing any
change to the prior approvals no further actions are required by the County to comply with
this settled issue. Further the Board finds that the Opponents claims b-d below are not
applicable to any relevant site plan approval criteria. As it is conceivable these findings will
be challenged on appeal, the Board has also addressed and resolved the arguments raised
on their merits below.
Opponent claims include:
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-00A881-SP Thornburgh Golf Course - EXHIBIT A Page 4 of 22
a) The application has not provided the required documentation.
b) The decision erred in finding compliance with Condition 10 because the applicant
has not shown it has an enforceable contract with BFR.
c) The applicants permit is expired, Gould protested extension, Applicant had no
beneficial use, filed extension late, can not pump any water, the record changed,
and has no water for fire safety.
d) Applicant is seeking to delay compliance with the condition.
lssued raised by N. Gould and COLW.
The Applicant responded:
Condition #1 0 was made a condition of approval by the Board of County Commissioners
when it approved the CMP in 2005. lt overturned a finding by Hearings Officer Briggs
that said "until the applicant demonstrates that it has enough mitigation credits to
mitigate for 942 acre-feet of water (the estimated amount of consumptive use per
owRD), it is unlikely that the application will be approved." See ExhibitJ, page 25 of the
CMP decision. Thornburgh appealed Hearing Officer Briggs' decision to the Board
arguing that mitigation water only needed to be provided when the water rights permit
dictated; not prior to development of the entire resort. As explained by Steve Johnson,
COID Manager:
'The decision rendered by Hearings Officer Anne Corcoran Briggs last month
implies that the Resort must bring all of the water to the table with the
application. This decision, if left unmodified, will set a precedent that will
artificially escalate the competition for water rights in the basin, and
consequently drive the price up, and drive some farmers out. Her analysis of
Water Availability on page 25 expressly conditions approval of the application
on having the credits in hand now. Some of this water will not be needed for
many years, and this policy, if followed, will be a waste of water, against the
beneficial use doctrine that is the pillar of Oregon's water law policy." See
Exhibit K.
The Board agreed with the Resort. In reaching this decision, the Board found that
Thornburgh needed to provide mitigation water when required by the OWRD water
right permit and prior to that time it is only necessary for the Resort to show it is not
precluded from obtaining mitigation water as a matter of law. The Bodrd found
Thornburgh exceeded this standard by showing it is feasible for it to obtain
sufficient mitigation water when required by OWRD. See Board CMP Decision Pgs.
70-72, Exhibit L. The Board imposed Condition 10 as a condition of approval of the
CMP to insure it provided an accounting of the mitigation water needed for each
phase of development. Hearing Officer Olsen, in the Phase A-1 tentative plan decision,
explained Condition 10's requirements as follows:
"Condition 10 appears primarily to be an informational requirement
requiringdocumentation of the state water permit and an accounting
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-OOO881-SP Thornburgh Golf Course - EXHIBIT A page S of 22
of mitigation under the water right."
Hearing Officer Olsen was correct in what Condition 10 requires. lt is an informational
condition requiring updating the documentation of the water permit and providing
an accounting of the amount of mitigation needed under the water permit for each
phase of development. Opponents are attempting to expand the scope of what
Condition 10 requires. The time to have done so was during the CMP proceedings.
They cannot come back and make a belated claim to amend an approval made 14
years ago. To do so is a collateral attack on the CMP and any change to the intent of
Condition 10 should be rejected.
The Board agrees this was resolved in the CMP with an intent consistent with Hearing Officer
Olsen's interpretation, that it is an "informational requirement". The language of Condition
10 requires "updated documentation of the state water right permif'. lt does not require that
the documentation show any particular status, for example; that the permit is free of protest,
or the extension is pending. lt just requires updated documentation which the Applicant
provided. lt shows the Applicant has a water rights permit, that the permit has not been
cancelled, and that it is in good standing. Condition 10 does not require the Applicant to
provide an agreement, or anyform of proof of an agreement or contract for mitigation water.
It just requires Applicant to provide an accounting of the mitigation water for the uses in this
site plan. Opponent attempts to expand the scope beyond that is a collateral attack on the
CMP.
3A. Need Reservoir Permit.
The Board finds that opponents raising the issue at this stage is an impermissible collateral
attack on the CMP and the Water Rights permit process. lt is also improper rebuttal, (See Liz
FancherJuly 15,2O2Q response to Anuta letter and Ex. 47l.lt is also not relevant to any site
plan approval criterion.
Opponent Gould claims Applicant needs a reservoir permit to hold water in its lake.
The appl icant responded:
The reservoir permit issue is one that should have been raised during the review of
the CMP; not during review of the golf course/lake site plan when it is an
impermissible collateral attack on the CMP. CMP criterion DCC 18.1 13.070(K) required
the Resort to demonstrate "adequate water will be available for al! proposed uses at
the destination resort."
The Board finds that, at no submission from OWRD has ever suggested such a reservoir
permit was needed. To the contrary, the Resorts water rights permit explicitly authorizes
year-round use for:
"QUASI-MUNICIPAL USES, INCLUD|NG tRRtGATtON OF GOLF COURSES AND
COMMERCIAL AREAS, AND MAINTENANCE OF RESERVOIRS.''
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 6 of 22
ln this site plan and the prior Phase A-1 proceedings OWRD stated multiple times that
Applicant has a water rights permit G-17036 for the proposed Project that is in good
standing. ln this for the golf course and lakes OWRD confirmed that Applicant only needed
to provide mitiSation water in order to pump water for these uses. Further details on the
merits are included in the Decision.
4. Availability of Mitigatlon Water & Adequacy of BFR Water - FMP. 18.113.070(D).
As noted above the Board found the issues related to availability of mitigation water for all
the Resorts proposed uses are CMP criterion that were resolved by approval of the CMP.
lssues related to the Availability and Adequary of the Big Falls Ranch water was resolved with
the approval of the Fish and Wildlife Mitigation Plan (FWMP) during the FMP proceedings.
Any attack on them is an impermissible collateral attack on the prior approvals. The Board
also finds that the Opponent claimi are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. The BFR water is pledged as security for other uses.
b. The flow of Deep Canyon Creek needs to be measured,
c. lt's unclear whether the BFR water is "paper" water or "wet" water,
d. The COID water is not included as mitigation water, and;
e. BFR transferred the point of appropriation of its water rights.
lssues raised by Y. Lind, COLW, J. Kleinman, N. Gould
The Applicant responded
The issue of the availability of mitigation water was conclusively resolved in the CMP.
Nothing further was required for the FMP. The FMP did not require the applicant to
veriff or re-certif, the finding of the CMP that mitigation water was available for use
in the FWMP.
During the review of the FWMP, the applicant provided additional information to
show that water from Big Falls Ranch would be used to provide thermal mitigation
and that it was feasible for the Resort's water supplier to obtain this particular cold
mitigation water to meet the no net loss standard of DCC 18.113.070.D. During the
FMP proceedings, Gould raised issues related to availability and the adequary of BFR
water including:
A. BFR Water is already pledged for other purposes and is not available for
mitigation.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A PageT of22
B. BFR transferred some of their water rights within their property it's hard to
substantiate them. lt appears the BFR water right are not what Thornburgh says.
C. The acquisition of water rights is not evidence that water will actually be returned
to the rivers and streams as alleged as water rights are merely paper
representations of water quantities.
The hearings officer disagreed, denying Gould's arguments, and approving the FMP
without any condition requiring any proof then, or in the future, that i) the BFR water
rights were not pledged or secured elsewhere; and ii) there is no requirement that
Deep Canyon Creek flow be subsequently measured or confirmed. She also
determined the OWRD water rights process is the only way to ensure actual
mitigation water is returned to the streams. See Ex. 21,2OOB Hearing Officer Dec. Pg.
23-24, Ex.25: Gould 3'd Memo, Pg.4, with Crocker attachment.
Gould appealed to LUBA arguing while the hearing officer noted there was substantial
evidence that Thornburgh had the right to use BFR water, "the Hearlng Officer
provided no condition of approval actually requiring that the necessary water
be returned to Deep Canyon Creek or findlng that it was feasible to do so." LUBA
denied the claim, noting that'Thornburgh responds that the Fish WMP and the
August 11, 2008 letter to the hearings offlcer make it clear that Thornburgh is
obligated to mitigate by acquiring the Big Falls Ranch water rights and
returning that water to Deep Canyon Creek." LUBA concluded:'We agree with
Thornburgh."
Gould questioned: "whether the COID water would be available" arguing "the
Hearings Officer made no finding of feasibility and did not include a condition
of approval requiring that proposed mitigation water actually be available and
used." On this issue LUBA stated: "Thornburgh responds, and we agree, that the
issue of the feasibility of acquiring water rights from COID if necessary was
resolved in our decision in Gould I (the appeal of the CMP)." See Ex. 31 FMP Appeal,
Pgs.3-7.
Gould appealed LUBAs decision to the Court of Appeals. Specifically, in her 2nd
assignment of error, Gould argued:
1. "Actual mitigation from Big Falls Ranch is not required,"
2. "No condition requires actual mitigation by Central Oregon lrrlgation
District water,"
3. LUBA erred when it found the COID mitigation water "does not necessarily
offset thermal impacts on fish associated with the requirements of DCC
18.113.070(D), and;
4. A general condition only requiring compliance with OWRD rules is not
sufficient."
Gould argued that condition 10 only requires the applicant comply with water laws
administered by OWRD. And that a "condition of approval on water quantity does
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 8 of 22
not obviate the need for a condition on water quality." Gould asked the Court to
add further conditions of approval. See Ex. 31. FMP Appeals Excerpts, pg.14.The CoA
denied Gould's claims, did not require any further conditions, and found that LUBA
did not err in simply requiring compliance with the FWMP. Goutd v. Deschutes County,
233 Or App 623, 635,227 P3d 758, 765 (2010). Compliance with the FWMP is assured
by Condition 38 of the FMP and its program of annual monitoring. As long as a
proposed development application does not alter the FWMP, the FWMp is not
relevant in the review of a site plan or tentative plan application.
LUBA affirmed this in 2019 during the Tentative Plan appeal stating:
"FMP Condition 38 requires interuenor to "obide by the April 2008 Wildlife
Mitigotion Plon, the August 2008 Supplement, and ogreements with the BLM
ond ODFW for monagement of off-site mitigation elfortsfi ond ,,submit on
annual report to the county detailing mitigotion octivities that have
occurred over the previous yedr. * * *
As estoblished in prior oppeols, the mitigotion plon satisfies the substontive
no net loss/degrodqtion stondord for destination resort development. We
agree with interuenor [Centrol Land] that the detoils of the mitigation plon
ore estoblished by the FMP, and compliance br noncompliance) with the
mitigotion meosures will be established by onnual reporting required by
FMP Condition 38. We rejed petitionerb argument thot the FMp required
interuenor to flll inlhc_dStgilgto obtoin opproval of a tentotive plon during
phased development."
Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2018-140, June 21 ,2}lg,
Slip Opinion p. 37). Also Ex. G. LUBA TP Dec.
As noted above, the applicant is required to comply with the terms of the FWMP.
Compliance with the FWMP is assured by the annual reporting of mitigation that
OWRD and the WMP requires applicant to complete. LUBA makes clear the Applicant
is not required to do anything further to comply with the FWMP in order to obtain
further development approvals. The constant barrage of frivolous claims regarding
this issue are barred bythe CMP, the FMP, and the FWMP. They should be disregarded
and denied outright.
Opponents have again raised the issue of BFR's transfer of its water rights internally,
claiming now, and in the TP that the transfer of the point of appropriation from Deep
Canyon Creek to groundwater wells on their property made the water unavailable for
mitigation. As overwhelming evidence shows, this is false and should be disregarded.
The BFR rights are still surface water rights, BFR still owns them, and they are still
available for mitigation. See Kyle Gorman, OWRD District Manager emailJuly 1, 2020,
Ex.23: emailfrom Sarah Henderson, OWRD, Ex. U-2:Jan Neuman Letter. 9/24/19,Ex.
19: Liz Fancher memo, Ex. 20 K. Delashmutt arguments.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBITA Page 9 of 22
The Board finds that the evidence and testimony Applicant has submitted shows BFR water
is available, which is adequate. Further, issues related to the Big Falls water were resolved
by the approval of the FWMP/FMP. Compliance with the FWMP is accomplished via the
annual reporting required in the FWMP/WMP. The Board finds the applicant is not proposing
any change to the FWMP/FMP and that no further actions are required to comply at this time.
5. Applicant lmpaired lts Ability to Use lts Water with Liens on lts Assets.
The Board finds this is a claim on the Availability of Water, which as noted in #1 above is a
CMP criterion 18.113.070(K) that was resolved in the CMP. Gould's failure to raise it then
does not allow the argument to be made nory as it is a collateral attack on the CMP. The
Board also finds that the Opponent claims are not applicable to any relevant site plan
approval criteria. As it is conceivable these findings will be challenged on appeal, the Board
has also addressed and resolved the arguments raised on their merits below.
Opponent Gould claims because applicant has pledged its assets as security for loans it
cannot use it water rights and other assets to provide mitigation as required.
The Applicant responded:
This is a sideways, and belated attack on the issue of water availability resolved by
the CMP years after the approval was granted. The time to have addressed those
issues was during the review of those plans. Gould's failure to raise the issue at the
appropriate time does not allow it to be visited now. Also, as noted in letter from Jan
Neuman, Applicant's water attorney, it is routine for development projects of this
scale to have loans secured by project assets which is supported by evidence Mr.
Delashmutt provide in rebuttal that at the time of the FMP approval Applicant had
roughly $23 Million in debt that was secured by the project assets. Certainly, if that
was an issue, it should have been raised then. The failure to do so is a collateral attack
on those prior approvals and should be denied outright.
The Board finds that it is routine for developers and certainly large development projects to
have loans secured by the project assets, and that those loans do not preclude the use of
the project assets for the benefit of the project. Further, at the time of previous approvals
the evidence shows the project had far larger debt, that logically should have been of greater
concern, but it was not raised. This claim is not grounds for denial of this site plan.
6. Removal of Deep Canyon Creek Dams - FWMP IFMP - 18.113.070(D). Condition #38.
The Board finds this criterion was resolved with the approval of the FWMP in the FMP
proceedings. The Applicant is not proposing any change to the FWMP and as such this is a
collateral attack on the FMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page10of22
a. The impoundments are stillthere.
b. The head gate is out but the concrete weir is still there.
c. Pictures shows water being impounded.
d. The impoundments are not adequately addressed.
e. Applicant will destroy Beaver Habitat when it removes the dams.
lssues raised by COLW, D. Arnold, S. Dorsey.
The Applicant responded:
Discussion about the removal of two dams on Deep Canyon Creek began in 2008
when the Resort agreed to that it would remove them. As above, compliance with the
FWMP is assured by the annual reporting of mitigation. LUBA's 2019 decision in Gould
vs. Deschutes Countyfound the removal of the dams on Deep Canyon Creek is required
by the FMP and is not relevant to the review of the tentative plan because the TP did
not alter the FWMP. The same is true of this site plan. See Ex. 8, Liz Fancher letter.
The applicant is not required to fill in the details or provide anything further at this
point to comply with this element of the FWMP. Opponents' claims relating to the
removal of either dam orthe impounding of water are collateralattacks on the FWMP
and should be disregarded and denied outright, including Gould's most recent claim
related to the beaver habitat. Concerns regarding compliance with the FWMP are
properly resolved by the annual review called for by FMP Condition 38.
Furthermore, David Newton, Newton Consultants lnc., the author of the FWMP, has
explained the required timing of the dam removal required by the FWMP (see Ex. e,
Pgs. 10-11). lt requires the flrst dam (the upper beaver dam) to be removed prior to
the start of construction, and the second dam (the head gate along with the BFR
concrete impoundment) is to be removed once the Applicant's pumping exceeds
1,201 acre-feet. At this time, removal of neither dam is required. That being said, the
evidence clearly shows BFR has removed the head gate on its impoundment, allowing
water to flow through their property to the Deschutes River, years before required by
the FWMP and even before Applicant has pumped any water whatsoever. Aside from
providing mitigation far in advance of when needed under the FWMP, the Applicant
is not changing any terms of the FWMP and will assure compliance with its annual
reporting as required.
The Board finds the Applicant is not proposing any change to the FWMP, which calls for the
dams to be removed at points in the future. Further, that while not required at this point,
before it begins any pumping that the Applicant has caused the cessation of pumping of the
Deep Canyon Creek water and the removal of the head gate which impounded the water in
the Big Falls pond, allowing the Deep Canyon Creek water to flow to the river, subject to the
constraints the Beavers reinstall. At this point the Applicant has done more than is required
by the FWMP.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-00088'l-SP Thornburgh Golf Course - EXHIBIT A Page 11 of22
7. Mitigation of lmpacts to Wildlife & the Old Tumalo Canal area (ACEC)
(18.113.070(D).
The Board finds these issues are CMP/FMP approval criterion resolved with approval of the
Wildlife Mitigation Plan (WMP) and the FMP. Further attacks are impermissible collateral
attacks on the CMP/FMP. Also, that issues a-f are not relevant site plan approval criterion. As
it is conceivable these findings will be challenged on appeal, the Board has also addressed
and resolved the arguments raised on their merits below.
Opponent claims include:
a. How is the resort planning to mitigate damage to the eco-system?
b. The decision erred in finding compliance with Condition 38,
c. Opponents disagree the impact is net zero,
d. A new 2020 study needs to be done,
e. Proximity to Golden Eagle nest, must take extra measures in addition to WMP,f. The applicant has not dealt with the Tumalo Canal area of concern, and;
g. The site plan needs to address rock outcrops affected by the golf course.
lssues raised by M.Saslow, N. Gould,
The Applicant responded:
Mitigation of impacts to Wildlife were approved in the FMP by the WMP. lncluded in
that is mitigation to wildlife both on and offsite. The WMP deals with the Tumalo canal
irrigation ACEC, as well as the locations of the rock outcrops. Condition 38 requires
compliance with the FMP and WMP, which included care for the Tumalo Canal and
rock outcrops. Applicant is not proposing any change any change to the terms of the
WMP. ln accordance with the WMP the site plan address rock outcrops and the
impacts to them. Further compliance with the WMP is determined by the annual
monitoring the plan requires. Applicant is not required to fill in the details or provide
anything further to meet this criterion. See LUBA pg. 9 above, and Ex. G, LUBA
Decision. Any further claim is a collateral attack on the CMP/FMP. Also Claims a-f are
not relevant approval criterion.
The Board finds that LUBA has held that the WMP/FWMP, when followed, fully mitigates for
the impacts to fish and wildlife. The Applicant is not proposing any change to the WMP, and
that compliance with the WMP is accomplished via the annual reporting in the WMP. Also,
Applicant's SP 3.1 shows the rock outcrops that may be impacted. This standard is met.
8. Economics - CMP - 18.113.070(C) (14) & 18.113.050(8X19).
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. Further they are not relevant site plan criterion. As it is
conceivable these findings will be challenged on appeal, the Board has also addressed and
resolved the arguments raised on their merits below.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 12 of 22
Opponents Claims include:
a. 2005 economic data is not viable.
b. Golf course and lakes are not viable. We do not need more golf.
c. Thornburgh should be required to enter into an agreement to use Eagle Crest golf
courses.
d. We do not need another resort. There is too much competition for same customer
base.
e. Job's and taxes should not be determining factors.
f . Where is the affordable housing for workers who maintain the project?
lssues raised by P. Lipscomb, N. Engebretson, saslow, Deborah, c. Larsen, L. Bakewell,
M. Saslow.
The Applicant responded
Any issue related to viability of the golf course, the need for golf or other amenities,
or the resort as a whole has been resolved in the CMP. The issue of siting golf in the
Thornburgh Resort was resolved in the CMP. All issues related to the economic
viability, the economic benefits the resort produces, and availability of affordable
housing were resolved in the CMP. Further they are not criterion for approval of this
site plan. There is no requirement for the applicant to provide any information on any
element regarding the same. Similarly, there is certainly no code requirement that we
enter into an agreement with any competitor. All of these issues are barred as
impermissible collateral attacks on the CMP and should be rejected outright.
While applicant is not required to do so, it will respond to the allegations as follows.
The evidence shows Thornburgh is hugely viable, that it will provide tremendous
economic benefits to the local economy. Economic benefits, including the creation of
jobs and tax revenue was a criterion for approval of the CMP. ln compliance with the
CMP requirements stated in 18.1 13.070(CX3) applicant retained Peterson Associates
to undertake a complete economic study. The results showed the project would; 1)
create an average of 1,355 direct and indirect jobs annually for the first 1 2 years, 2)
produce nearly $19M in annual tax revenue at stabilization, making Thornburgh the
2nd highest paying taxpayer in the county and: 3) create little demand for public
services resulting in massive benefit to public agencies. For example, annual tax
payments directed to public schools would be about $7.4M while the cost of
educating the few resort kids would only be about $340,000, an annual surplus of
about $7M.
ln the 2006 CMP decision (Ex. 30) the Board found that "even with the loss of re
lands the economic benefit the resort pfoduces will provide an overuvhelming benefit
to the county." As to affordable housing Peterson prepared a comprehensive
housing analysis in 2005 as part of the CMP approval 18.113.070(CX3), which the
Board found acceptable, stating that it was a'substantial report'. Ex.30, Pg. 16-17,
Board CMP Dec.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A page 13 of 22
ln the 2018 Tentative Plan proceedings opponents raised similar concerns to those
being raised here, i.e.: golf, economics, viability, etc. To address those concerns
Applicant asked Peterson Economics to respond. Peterson noted; "Thornburgh will
have an exceptionalgolf course designed by Coore-Crenshaw - clearly one of the
very best "big name" designers, known for designing some of the very finest
golf courses on the planet." In response to a comment that Thornburgh lands are
not very good for a resort, Peterson opined, that "this could be the very best
development parcel remaining in the Northwest". ln response to the proximity to
Eagle Crest Peterson stated, that "although situated near Eagle Crest, Thornburgh
would be positioned to serve a very different segment of the market. As such it
would have little to no overlap....." Lastly referring to comments that things have
changed since 2005 Peterson referred to a detailed financial analysis his firm did in
June 20'18. At that time Peterson concluded "Thornburgh offers potential to
generate very attractive net cash flow going forward exceeding $410 million in
cumulative cash flow...." ln their june 2018 analysis Peterson points to a huge and
expanding customer base, dispelling Lipscomb's implications of a static or stagnate
customer base. See, Attachments 2, 3 and Exhibit 30, Pgs. 15-17.
The Board finds that based on the 2005 evidence and the evidence and expert testimony
Applicant submitted for this site plan, that the Resort is viable, and will provide substantial
economic benefits for Deschutes County.
9. Drainage - CMP 18.113.070(l): CMP Condition 25.
The Board flnds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. lt's not clear no natural drainages have been identified on the CMp/FMp
b. The decision erred in finding compliance with 18.1 13.070(J).
lssue raised byJ. Kleinman, N. Gould.
The Applicant responded:
The CMP established the drainage plans for the Resort which satisfied 18.113.070(J),
and which are being adhered to in this site plan. Condition 25 required the filing of a
detailed erosion plan with the first tentative plan, which was done. That same erosion
plan was filed again with this site plan. Condition 25 is a filing requirement. lt imposes
no performance standard for the plan, other than it be detailed. lt is detailed and has
been filed. The Applicant is complying with the CMP conditions and any claim is a
collateral attack on the CMP. See Ex. 8, TP Erosion Control Plan.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBtT A Page 14 of 22
The Board finds that Applicant complied with this criterion by complying with Condition 25
which required that it file the Erosion Control plan with the initial tentative plan (or site plan,
whichever is first). The Erosion Control Plan was accepted by Hearing Officer Olsen. ln this
site plan, the entrance road is the only element surface drainage occur, so the Applicant filed
the Erosion Control Plan with this application. This standard is met.
10. Waste-Water Disposal - 18.113.070(L): CMP Condition 15.
The Board finds this issue is a CMP criterion that was resolved in the CMP and is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims the plan does not comply with 18.1 13.070(L) that its wastewater disposal
plan includes the maximum beneficial use.
The Applicant responded:
The site plan does not require waste-water disposal. Further 18.1 13.070(L) was met
by approval of the CMP (See Ex. 30, Board CMP Dec. Pg. 28.) and is no longer an issue
unless the applicant is proposing a change to the waste-water system - which it is not.
The applicant has a Water Pollution Control Facility permit as required by Condition
#15 which was met prior to the submittal of the FMP. Any further attack is a collateral
attack on the CMP/FMP.
The Board finds the Applicant has satisfied Condition 15 by obtaining a Water Pollution
Control Facility permit. This site plan is not proposing any facilities requiring waste-water
disposal so maximum beneficial use is an irrelevant issue. Nothing further is required now.
11. Traffic and Access - DCC 18.113.050(BX2) & DCC 18.113.070(G): CMP Conditions 4 &
29.
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. Traffic counts are woefully low.
b. Taxpayers are being asked to pay for a roundabout at Cook Avenue.
c. How does a 2007 Traffic approval work now?
d. The Board should require the Cooperative lmprovement Agreement with ODOT
to be recorded.
e. Although Northern access is not included the Tentative Plan drawings show
grades over 10% that are maximum allowed by Redmond Fire.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 15of22
f . Redmond Fire requires southern road to be built now but applicant has no access
permit.
g. The BLM requires extra things over county. No condition of approval requires
compliance with BLM.
lssues raised by N. Gould, C. Larson, L. Bakewell.
The Applicant responded:
DCC 1 8.1 13.050 & 070 are CMP criterion that were met with approval of the CMP and
are collateral attacks. Applicant has done all that was required in the CMP. The
applicant provided a tralfic report compiled by a professional traffic engineer which
was accepted as valid by Deschutes County Road Department, ODOT and the Board.
The report became the basis for negotiations with ODOT for the execution of the
MOU (See Ex.34, ODOT MOU), compliance with which, the Board made a condition
of approval (#29) of the CMP. See. Ex. 30, Board CMP Dec, Pgs. 1 2, 18-22,32. Further
the applicant entered into a Right of way (ROW) agreement with the BLM pursuant to
condition #4.
In compliance with the terms of the MOU, Thornburgh subsequently entered into a
Cooperative lmprovement Agreement (ClA) with ODOT. The CIA spells out the terms
of Thornburgh's $1,125,000 contribution to the construction of the Cook Avenue
roundabout. The CIA has no provision requiring it to be recorded. See Ex. O, CIA
w/ODOT. Further, this claim is not a criterion for approval of this site plan. Lastly,
according to Chris Clemow, Professional Engineer, the background traffic at relevant
intersections was lower than was estimated to have occurred at similar times in the
2007 traffic study. See Ex.35, Clemow Letter, Pg. 6.
Comments regarding the north and south roads were governed by the imposition of
condition #4, requiring secondary access roads to be built prior to final plat approval
or building permits, whichever comes first. This is further clarified and conditioned by
CMP Condition #17 which requires that all development meet the requirements of
Redmond Fire Depanment, including ingress and egress to the site. Redmond Fire
provided an email, Ex. 16 that stated no water or access is required until combustible
materials are arriving on site for a structure. This site plan is not a final plat approval,
or require issuance of a building permit, and will not result in the delivery of
combustible materials for a structure. As such no road or water is required. Further
Ex. 28 is a letter from Redmond Fire confirming 12% grade is acceptable on the
northern access road.
The Administrative Decision required Redmond Fire to certifiT the applicant is in
compliance with them prior to construction, earthmoving or clearing. While this site
plan is not proposing any construction Ex. 16 makes clear there are no requirements
for earthmoving or clearing. The language on page 32 of the staff decision reading:
"Moreover, as required under DCC 18.124.060, the applicant shall provide written
confirmation from the Redmond Fire Department that all applicable fire safety
standards are met; including this development's compliance with the resort's
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 1 6 of 22
Wildfire/Natural Hazard Protection Plan shall be submitted prior to commencement
of construction, earthmoving, or clearing,' should be stricken.
Lastly, condition #4 required that we enter into the ROW. There was no ongoing
condition that Applicant comply with the BLW Row as the Row has its own
enforcement and compliance measures, similar to Condition 38 and the WMp.
Applicant will comply with the BLM ROW.
The Board agrees the language on page 32 should be removed as Exhibit l6: the email from
Clara Butler, Redmond Fire resolves any concerns the county concerns may have and makes
it a moot point, as noted in the Board decision. The Applicant shows it is complying with the
MOU, has entered into a Cooperative lmprovement Agreement with ODOT and is complying
with the related conditions of 4 and29.
12. Fire and Safety lssues are Not Being Addressed - 18.113.070(t): CMp Conditions 4,
19 &24.
The Board finds these issues are CMP criterion that were resolved in the CMp and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include;
a. Property has not been annexed into Redmond Fire.
b. Redmond Fire Department requires the southern access road to be built now,c. The project needs to have back up power to insure fire flow.
lssues raised by T. Bishop and N. Gould.
The Applicant responded:
This is a CMP criterion that has been resolved and these attacks are collateral attacks
on the CMP. The entire property has been annexed into the Redmond Fire district.
The Board made this Condition 24 of the CMP, which was approved in 2008 as is
shown in Ex. 29: Annexation Documentation. The FMP decision determined that
Condition 24 was satisfied. The timing of construction of the access roads was
covered by Condition 4, which stated construction of a secondary/emergency access
roads shall be prior to final plat approval or issuance of a building permit, whichever
comes first. Further, the email from Clara Butler, Redmond Fire, makes clear that no
access or water is required until combustible materials for structures arrive onsite.
see Ex. 15. Applicant has met the standards and was approved in the cMp.
There is no requirement in the CMP/FMP or County code requiring the resort to have
backup power. lf Bishop had a concern about that he should have raised it in the CMp
proceeding. The applicant is going to great lengths to ensure the safety of its residents
and guests (Ex. 30-a, Board CMP Dec. Pgs. 8-10). lt completed a wildfire and natural
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBIT A Page 17 of22
hazards plan (Ex. M & Condition 19) and is planning redundancies in its power and
fire suppression systems as described on the Comment Chart, submittedJuly 1,2Q2Q.
The Board flnds the Applicant has addressed all fire and safety issues, that the southern road
is not required now per Condition 4, that Condition 24 was satisfied with the complete
annexation into Redmond Fire District. Also, the Applicant satisfied, and is complying with
Condition 19:Wildfire and Natural Hazards plan. Nothingfurther is required atthis point.
13. Protection, preseryation, enhancement, and maintenance of natural features,
naturalcharacteristics, and natural resources: CMP Condition #34.
The Board finds these issues were raised and debated in the CMP, including under criterion
18.1 13.050(BX1), (BX4), (BX5) and 18.1 13.070(E), all discussed below. These were resolved in
the CMP and are collateral attacks on the CMP. While the issues are related to 18.124.060(8),
which is a relevant site plan criterion the CMP criterion are broader and more extensive than
those of the site plan. As it is conceivable these flndings will be challenged on appeal, the
Board has also addressed and resolved the arguments raised on their merits below.
Opponent Claims include:
a. The applicant "failed to identify the natural features to be preserved",
b. Views and natural features must be identified and located on the site plan with
commitments to how they will be preserved.
lssues raised by COLW relate to 18.124.060(AXB) which is discussed in detail in the
Decision.
The Applicant responded:
These issues were dealt with extensively in the CMP, to satisfl/ numerous code
elements, including:
18.113.050(8)(1). A description of the noturol chqrocteristics of the site ond
surrounding oreos, including o description of resources ond the effect oI the
destinotion resort on the resources; methods employed to mitigate odverce lmpocts
on resources; onolysis of how the overoll volues of the noturol feotures of the site
will be preserved, enhonced or utlllzed in the design concept for the destinotion
resort; and o proposed resource protection plon to ensure thot importont noturol
feotures will be protected ond mointained. Foctors to be oddressed lnclude:
c. Slope ond generol topogrophy;
I. Vegetotion;
h. Importont noturol feotures:
18.113.050(8)(4). Destgn guldelines ond development standards defining visual and
oesthetic poro meters for:c. Preservotion of existlng topogrophy and vegetotion, snd;
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 18 of22
18.113.050(8)(5). An open spoce monqgement plan whlch includes:b. An inventory of the importont noturol feotures ldentlfied in the open
spoce oreos ond ony other open spoce ond noturol volues present in
the open spoce;
c. A set of monogement prescriptlons thot will operote to maintoin ond
consen e in perpetuity ony identified lmportont notural feotures ond
other noturol or open spoce volues present in the open space;
18.113.070(E). ,mportqnt noturol feotures, including but not limited to significant
wetlonds, riporlon hobitot, ond londscope monagement corridors will be
mointoined. Riporlon vetetotion wlthln 100 feet of streoms, rivers and signilicont
wetlonds wlll he mointolned. Alterotions to importqnt notural feotures, lncluding
plocement of structures, is ollowed so long os the overoll volues oI the leoture ore
molntolned.
During the CMP the applicant provided numerous reports and documents relevant to
the above criteria, including: Ex.42: the Natural Characteristics and Geology Report
from Newton Consultants, Ex. 43: the Wildlife and Habitat report from Tetra Tech, Ex.
44: the Open Space Management Plan. The FMP WMP (Ex. 38) is also relevant as it
reinforces details from the CMP. The applicant also provided extensive details how it
would use a concerted effort to preserve and maintain the features and feel of the
property, i.e.: use a light touch in its development activities. That efforts would be
taken to preserve and encourage old growth juniper woodlands, and that rock
outcrops would be preserved wherever possible. The CMP showed the topography of
the site, that the buttes themselves provide the Thornburgh property 700 feet of
elevation change, that the upper elements have homesites fed by single loaded roads
to protect the views of all, and that the golf and lakes are located on the lower lands.
ln the CMP siting golf on the lower reaches enhanced the site natural views adds as it
would provide broad expanses of clearings.
ln the CMP, the Board found that while there are resources worth preserving the site
did not have any important natural features, that tree and rock outcrops did not
qualifiT under the definition. Condition 34 was added to protect open space areas that
had been disturbed. The Board found that Applicant had met all the criterion of the
CMP related to this, which is broader than the criterion of 18.124.060A and B. Any
further attack in this proceeding is a collateral attack on the CMP. See Ex. 30 and 30-
A, Board CMP Dec.
The Board finds Applicant reducing impacts to the greatest extent possible. While there may
not be important natural features, the Applicant has described the extensive efforts to
protect and preserve trees, rock outcrops and topography. Condition 34 deals with areas
outside of the Golf course or lakes that are disturbed and the WMP prescribes actions to be
taken and the timing when those will be completed to restore disturbed areas. The Applicant
is meeting the criterion.
14. Lighting. CMP Condition #31.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247:19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 19 of 22
The Board finds the issues were raised and resolved in the CMP and are collateral attacks on
the CMP. Also claim "b" below is not relevant to this site plan application. As it is conceivable
these findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims include:
a. All exterior lighting shall be shielded so that direct light does not project off site,
b. The present lighting code does not meet the Dark Sky guideline.
lssue raised by N. Goud, COLW.
The Applicant responded:
It is not proposing lighting here, so the claims are irrelevant. Also, Gould raised the
issue in the CMP that resulted in the Board adding condition (#31) requiring Applicant
comply with Deschutes County code on lighting. See Ex. 30, CMP Board Dec. pgs. 30,
32. This condition was carried forward as a condition of the FMP assuring compliance
with County lighting codes. Further attacks are a collateral attack on the prior
approvals, including Gould's arguments that the Code is not sufficient.
The Board finds this application does not propose any lighting, nor any change to Condition
#31, which requires adherence to the County Code. The Applicant is in compliance with
Condition 31.
15. Population of Bend exceeds 100,000:
The Board finds this issue was resolved at the time of the CMP, and that it is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
flndings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponents claim resorts are not allowed to be sited within 24 miles of cities over 100,000.
lssue raised by P. Lipscomb, K. Cody.
The Applicant responded:
The issue was resolved when Thornburgh applied for its CMP approval on February
18, 2005, or what the CMP was approved by the County on December 9, 2009. At no
time during the CMP was the issue raised. The population was far less than 100,000
then as it was when the resorts FMP was approved. The argument is a collateral attack
on the CMP, which is discussed in more detail in Exhibit 8, Liz Fancher letter submitted
at the hearing. lt is not a relevant approval criterion.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page2O of 22
The Board notes that as of the date of this decision the official population of Bend is less
than i 00,000 although it is expected that it may exceed this number when the current census
is completed. The intent was to be determined at the time of siting of a resort, which could
have occurred when it was mapped for use as a destination resort, not 15 years after it was
applied for, or more than a decade after the CMP was approved.
15. Tax Lot 7700 is not a legal lot of record.
lssue raised by Central Oregon Land Watch
The Board finds this issue was resolved at the time of the CMP, and further with the legal lot
of record approval (File 247-14-00045-LR) that COLW participated in, which was found
against them. The claim is a collateral attack on the CMP and the legal lot of record approval.
Further it is not a relevant site plan criterion. As it is conceivable these findings will be
challenged on appeal, the Board has also addressed and resolved the arguments raised on
their merits below.
The Appl icant responded:
This is false, as TL77O0 is actually comprised of 6 legal lots of record. This is discussed
in greater detail in letter from Liz Fancher. Furthermore, the issue was resolved in the
CMP and the FMP which ruled all the Thornburgh property were legal lots of record.
As such this is an impermissible collateral attack on those approvals. lt is also a
collateral attack on the lot of record decision which recognized TL77OO as 6 legal lots
of record, that Land Watch participated in. See Ex.15, Liz Fancher letter.
The Board finds Tax Lot 7700 is a legal lot of record, as described in File 247-14-OOO45-LR.
17. Well lndemnification fgreement CMP Condition 11.
The Board finds this issue was resolved in the CMP with the imposition of Condition 11 and
is barred from further claim as a collateral attack on the CMP. Also, it is not a relevant
approval criterion for the site plan. As this finding could be appealed the merits are discussed
below.
Opponents' issues include:
a. how does the well agreements work, and;
b. how was the two-mile radius determined?
Questions raised byJim Guild, and N. Engebretson.
The Applicant responded:
The issues pertaining to the well indemnification agreements were resolved in the
CMP and are barred from being raised in this proceeding. Further this issue is not a
criterion for approval of this site plan. The well agreement on file with the County was
approved during the review of the CMP. Eco: Logic suggested the same distance in
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 21 of 22
the well monitoring agreement, which was approved by the Board. See Ex. 30 Board
CMP Dec., Pg.27. Nothing is required of the Applicant at this point.
The Board finds that the Well lndemnification Agreement speaks for itself. The Applicant is
not proposing any change to the agreement, which requires nothing of the Applicant now.
Applicant is in compliance with Condition 11.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBITA Page22 of 22
BEFORE THE HEARINGS OFFICER FOR DESCHUTES COUNTY, OREGON
File Number: 247-21-000731-A/Land Use Board of Appeals, Case No. 2018-140
Appellant: Central Land and Cattle Company, LLC
Applicant/Owner: Central Land and Cattle Company, LLC
Proposal: Affirm Approval of Tentative Plan/Site Plan on Remand
Subject Property: Tax Lots 7700, 7800, 7801 and 7900, Map 15-12-00
Hearings Officer: Gregory Frank
Planning Staff: Will Groves, Senior Planner
APPLICANT’S FINAL ARGUMENT
I. MITIGATION REQUIREMENTS
There are two different kinds of mitigation. Resort opponents keep lumping them together.
They are:
• Water quantity mitigation for the water used for each development phase of use,
determined by OWRD according to the incremental development plan and/required prior
to pumping, consisting of a total of 1356.0 acre-feet annually in the General Zone of Impact (anywhere in the Deschutes Basin above the Madras gage, located on the Deschutes River below Lake Billy Chinook).
• Fish and wildlife mitigation required by DCC 18.113.070(D), the no net loss/degradation standard, provided for by the approved FWMP which addresses water quality issues. BFR Deep Canyon Creek mitigation water is relevant to both mitigation programs but in different ways. The BFR water rights provide water quantity required by OWRD and water
quality mitigation required by the FWMP.
II. ARGUMENT AND ANALYSIS OF RELEVANT ISSUES
LUBA’S Question on Remand
The Land Use Board of Appeals (“LUBA”) remanded the County’s approval of the Phase A-1 tentative plan and site plan to determine whether the tentative plan approval meets the “no net loss/degradation” standard of DCC 18.113.070(D) without Condition of Approval 17.1 DCC
18.113.070(D) is a County standard only.2 LUBA also asked the County to address whether a
change in the source of mitigation water, if proposed, would constitute a substantial change to the Resort’s Final Master Plan (FMP) that would require land use review of the change. This is how LUBA framed the issue:
“On remand, the county must consider whether, without TP Condition 17, the
tentative plan for Phase A-1 satisfies the no net loss/degradation standard and
whether a change in the source of mitigation water [if proposed] constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and
DCC destination resort regulations.”
Gould v. Deschutes County, 79 Or LUBA 561, 580 (2019)(“Gould TP”).3
Answer to LUBA’s Question The answer to LUBA’s question is that without Condition 17, the applicant must comply with
the FWMP (Addendum to the Resort’s Wildlife Mitigation Plan). The County and appellate
bodies determined that the Thornburgh FMP and its FWMP achieves compliance with the no net loss/degradation standard when they approved and affirmed the FMP. Compliance with FWMP Assures Compliance with No Net Loss/Degradation Test
LUBA has determined “[t]he resort’s impact on fish and wildlife, and the efficacy of required mitigation, was litigated over the course of multiple prior appeals ***.” Gould TP at 573. LUBA
1 Ms. Gould’s argument that the requirements of Condition 17 must be met on remand is clearly
erroneous given the plain language of LUBA’s question on remand.
2 Given this fact, interpretations of this code by the Board of County Commissioners in prior
decisions such as its approval of the CMP are due deference by LUBA on appeal.
3 LUBA’s question on remand assumes that no part of Condition 17 will remain in effect, including Condition 17(a). Condition 17(a) requires it to prove that OLUs are OLUs during the review of the OLU site plan. Condition 17(a) is not needed to assure compliance with relevant
tentative plan approval criteria and nothing about the tentative plan prevents OLUs from being
OLUs and LUBA found that the issue had been addressed and settled during review of the CMP. Furthermore, the requirement imposed by Condition 17(a) – whether OLUs are OLUs – is being addressed by the County as a part of its review of the OLU site plan.
determined that “[i]n this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase A-1 approval as inconsistent with the mitigation plan.” Gould TP at 573.
This means that a showing of compliance with the FWMP establishes compliance with the no net
loss/degradation test. Additionally, this means that all of the issues raised by opponents that challenge the mitigation plan on remand are barred by the doctrine of law of the case because the issues were not raised by Gould in her appeal of the County’s tentative plan decision. Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992); Gould v. Deschutes County, 272 Or App
666, 684, 362 P3d 679 (2015) (Beck law of the case doctrine holds that issues decided by LUBA
and issues upon which judicial review was not sought are settled and not subject to review in a subsequent review by LUBA). Justification for Condition 17
Condition 17 was imposed because Hearings Officer Olsen thought Central Land might need to purchase irrigation water for mitigation from sources not described by the FWMP to satisfy its mitigation water obligations and that the possible use of a different source of mitigation water, if needed, might constitute a modification of the FMP and its FWMP barred by FMP Condition 1.4
LUBA determined, in its review of the Phase A-1 tentative plan decision, that mitigation water
may be provided in subphases without violating or requiring a modification of the FWMP. Gould
TP at 575. L UBA found that the FWMP requires the resort to provide mitigation water in advance for the full
amount of water to be pumped under each development stage (e.g. tentative plan or site plan
rather than resort approval phases). The FWMP does not require the applicant to provide upfront the full amount of mitigation required for an entire phase of resort development (e.g. Phase A of the FMP). Gould TP at 574-575. This means that the applicant must demonstrate, on remand, that it is feasible for it to acquire sufficient water rights from BFR to offset the quantity of water
use allowed by the Phase A-1 tentative plan.
4 The availability of mitigation water was fully litigated during the review of the FMP.
Consequently, the hearings officer’s decision re the availability of mitigation water was an
impermissible collateral attack on the FMP that should not be repeated in future reviews of development applications. Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500 (2004); Exhibit C of the Applicant’s Burden of Proof (BOCC Decision, Document No. 2020-579, pp. 4-5). Central Land did not, however, raise this issue on cross-appeal so it was not considered by
LUBA. Additionally, LUBA determined in its decisions regarding the Phase A-1 tentative plan
and Thornburgh golf course that compliance with the FWMP is properly addressed by the annual reporting requirement of FMP Condition 38 not by Condition 10. FMP Condition 38 requires a review of the annual reports by County staff; not a review of a development application such as a tentative plan or site plan. Gould TP at 583; Gould v. Deschutes County, __ Or LUBA __
(LUBA No. 2020-095, June 11, 2021) (“Satisfaction of the no net loss standard is ensured
through compliance with Condition 38, not Condition 10.”) The Board of Commissioners (“BOCC”) also applied this reasoning in its approval of the Thornburgh golf course, Exhibit C of the Applicant’s Burden of Proof.
Uncertainty about the feasibility of acquiring FWMP mitigation arose due to arguments presented by opponents. As to the Big Falls Ranch (BFR) water rights, opponents claimed that it
would be impossible for Central Land to purchase them. Ms. Gould argued that the water rights
were not available due to a transfer of the surface water point of diversion of the water rights from Deep Canyon Creek to a point of appropriation from groundwater. Rather than resolve these issues, Hearings Officer Olsen deferred review of them until the OLU site plan review by imposing TP Condition 17. This condition was stricken by LUBA because it believed the
condition allowed the applicant to change the source of mitigation water to a source other than
one specified by the FWMP.5 Resolution of Uncertainty on Remand
Hearings Officer Olsen’s decision explained that during review of the OLU site plan,
demonstrating that the applicant has rights from BFR “should be straight-forward.” TP Olsen
Decision, p. 30. This is because those rights are required by the FWMP and compliance with the FWMP establishes, as a matter of law, that the no net loss test will be satisfied. The same holds true for this review on remand that addresses the same issue.
Source of Mitigation Water The hearings officer has asked “what is the source of mitigation water?” As it relates to the issue on remand, the answer is that the source of mitigation water is BFR Deep Canyon Creek water
rights.
Mr. Olsen’s decision approving the Phase A-1 tentative plan provides this answer to this question. Mr. Olsen identified BFR and COID water rights as an FMP-approved source of mitigation water (page 29 of his decision). He explained later, on page 30, that he was unsure
whether obtaining water from these sources remains feasible and, as a result, he imposed TP
Condition 17.6 Condition 17 also identified the sources as “the Big Springs [Falls] Ranch and COID water referenced in the Mitigation Plan and FMP decision.” LUBA’s discussion of “Mitigation Water Sources” also makes it clear that BFR and COID are
the sources of mitigation at issue in this remand. It says [t]he hearings officer found that the
5 The hearings officer also allowed the applicant to change the source of mitigation water – an
option not exercised by the applicant on remand.
6As recognized by Mr. Olsen’s findings (p. 30), the issue of the availability/feasibility of
obtaining mitigation water from Big Falls Ranch and COID was settled by approval of the FMP.
Given the fact that the issue was settled by the FMP, Mr. Olsen should not have revisited the issue during the review of the tentative plan as it was an impermissible collateral attack on an issue settled by the FMP. Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500 (2004). Additionally, FMP Condition 38 makes it clear that issues of compliance with the FWMP are to
be addressed by County staff in their review of annual compliance reports; not during the review
of a tentative plan or site plan application.
mitigation plan relies on mitigation water acquired from the COID and Big Falls Ranch.” Gould TP at 577.
The FWMP, as correctly determined by hearings officer Olsen, does in fact identify Big Falls Ranch as the source of mitigation water. It also describes Deep Canyon Creek water rights as the particular rights that will be purchased for use as mitigation water. Ms. Gould’s attorney Mr. Anuta agrees that the BFR water rights are the “source.” He also states on page 9 of his post-
hearing argument that “the ‘source’ of the mitigation water is supposed to be a right with a
certain priority date for use of surface water in Deep Canyon Creek …” The applicant has purchased and will purchase mitigation from the source described by Mr. Anuta – BFR Deep Canyon Creek water rights described in the FWMP. As they are the same rights, there is no question but that have the same priority date although that issue is not relevant as a priority date
requirement is not imposed by the FWMP. There has been no change in the source of the
mitigation water specified by the FWMP. Mr. Kleinman’s post-hearing argument [p. 3] is at odds with Mr. Anuta’s. Mr. Kleinman claims “the source [of mitigation water] is cold spring-fed water in Deep Canyon Creek.” While the
term “source” may also mean the physical source of the water flowing in Deep Canyon Creek
that is not the meaning of the term as it is used by the FWMP, Mr. Olsen, Mr. Anuta and LUBA.7 As explained later in this final argument, Hearings Officer Briggs determined, when she approved the FWMP, that water rights administered by OWRD would be the measure of mitigation rather than the volume of spring water discharged into Deep Canyon Creek. See,
Exhibit E (fn 9, pp. 23-24).8
Availability of Mitigation Water The applicant has demonstrated that Pinnacle Utilities, LLC has purchased mitigation water from
Big Falls Ranch. It has also shown that Pinnacle purchased the Deep Canyon water rights
specified by the FWMP. See, Exhibit A9 (FWMP pp. 9). In August, 2021, Pinnacle Utilities, LLC purchased 90 acres of Deep Canyon Creek water rights (162-acre feet of mitigation water under the relevant state rules) from Big Falls Ranch. See, Exhibits B and C. The water rights
7 Even if a transfer of the point of diversion of water from the creek to groundwater were a
change in source of mitigation, which it is not, it does not alter compliance with the no net loss standard. After the purchase of Deep Canyon Creek water rights from BFR, Pinnacle holds both
the “paper” water rights appurtenant to the BFR property and the right to assure that the rights
will not be pumped from the creek (in fact, pumping has ceased). These are the only mitigation events related to BFR water expected by the FWMP.
8 The original source of the creek water is precipitation that falls from the sky. A part of this precipitation enters the ground and most enters the vast regional aquifer that underlies the Deschutes Basin. The aquifer is the source of water for the Deep Canyon Creek springs and creek.
9 All exhibits are documents that have been included by the applicant in the record of 247-21-000731-A.
are a portion of the BFR Deep Canyon Creek water rights identified for purchase by the Resort for use in mitigation by the FWMP. See, Exhibit D (Figures 3 and 4 of FWMP). The purchase
of BFR Deep Canyon water rights is the action relied on by the County’s hearings officer when
she approved the FWMP. See, Exhibit E (pp. 22 & 24 of FMP Decision by Hearings Officer Briggs). The issue of the availability of this mitigation water, therefore, has been resolved and should not
have been reopened by hearings officer Olsen. Nonetheless, it was but it is clearly feasible for
Pinnacle to purchase BFR Deep Canyon Creek water rights because it has already done so. The fact that these water rights were, prior to purchase, pumped from groundwater rather than Deep Canyon Creek is immaterial. Pinnacle’s purchase eliminates both the right of BFR to pump these water rights from groundwater or from the creek. Both the required actions, purchase of
Deep Canyon Creek water rights, and its intended result (no pumping from the creek) have been
or can be achieved. As a result, the tentative plan will not result in a violation of the no net loss test without Condition 17. Error by Kleinman in Describing County Conditions of Approval of the Tentative Plan
Mr. Kleinman, on page 5 of his post-hearing comments under the heading “Availability of Water – Mitigation” inaccurately describes the tentative plan decision. He says that “the County conditioned approval on, the applicant providing cold spring surface water from Deep Canyon Creek, and the removal of two dams/reservoirs on that Creek – in order to off set the impact of
the Resort ground water Permit (#G-17036) on Whychus Creek.”
Mr. Kleinman apparently forgets that he argued to LUBA that the hearings officer erred because he did not impose a condition of approval to require removal of the two dams on Deep Canyon Creek. According to LUBA:
“Petitioner argues that the hearings officer erred in failing to require a condition
of approval for the tentative plan that, prior to beginning construction, intervenor remove the dams [from Deep Canyon Creek] and wells [from the resort property].”
Gould TP at 583. There is also no condition of approval beyond Condition 17 that can fairly be described as requiring the applicant to provide “cool spring surface water from Deep Canyon Creek.”
Opponents’ Arguments re Availability of Mitigation Water
Pinnacle Has a Secret Contract and Hasn’t Proven it Can Purchase Mitigation Water from BFR Opponents have claimed that the applicant has not established that he has a contract to purchase
Deep Canyon water rights from BFR. The applicant disproved this assertion by purchasing a
significant portion of the BFR water rights described in the FWMP as the only “specific mitigation” required by the plan. The business terms of the agreement are not relevant to compliance with relevant tentative plan criteria or to the question on remand.
Streamflow in Deep Canyon Creek is Non-existent or Inadequate
During the review of the FMP and FWMP, opponents argued that the acquisition of water rights
is not proof that “wet water” will actually be returned to Deep Canyon Creek. Ms. Briggs recognized that water rights might not mean that cool water will actually be available instream but rejected opponents’ arguments and determined that OWRD administration of water rights was “the only way to adequately account for water in the streams.” See, Exhibit E (fn 9, pp. 23-
24). This finding conclusively determines that the FWMP requires the applicant to purchase
water rights; not to demonstrate that a certain volume of “wet water” exists in the creek. Opponents’ wet water and creek flow arguments presented on remand, including Mr. Lambie’s clearly erroneous claim that Deep Canyon Creek does not contain flowing spring water,10
constitute an impermissible collateral attack on the FMP and its FWMP. Safeway, Inc. v. City of
North Bend, 47 Or LUBA 489, 500 (2004) (“As a general principle, issues that were conclusively resolved in a final discretionary land use decision, or that could have been but were not raised and resolved in that earlier proceeding, cannot be raised to challenge a subsequent application for permits necessary to carry out the earlier final decision.”) as quoted by LUBA in
Gould TP at 570.
Adequacy of 162 AF of BFR Mitigation Water to Meet Mitigation Requirements Associated with Phase A-1 Water Use
The 162-acre feet of mitigation water acquired by Pinnacle is far more mitigation water than the
50-acre feet of mitigation needed for uses that will be allowed without further County land use review after the filing of the Phase A-1 final plat and compliance with additional FMP requirements.
Ms. Gould’s attorney Jeffrey Kleinman argues that 50-acre feet of mitigation water is insufficient
to meet the water needs of the Phase A-1 tentative plan because that figure does not include water use for all uses that may ultimately receive approval from Deschutes County to be built on land included in Phase A-1. Ms. Gould acknowledged, however, in her Petition for Review to LUBA that the tentative plan decision reduced the mitigation required for Phase A-1 down to 50
AF – the amount stated by Central Land in 2018 and this is correct. See, Exhibit H and Gould
TP at 575.11 Additionally, Ms. Gould challenged Central Land’s accounting of its mitigation water requirements in her appeal of the Phase A-1 tentative plan and her challenges were rejected.
10 I have prepared a separate document that clearly shows that Mr. Lambie’s claim that Deep Canyon Creek is not flowing is erroneous and based on faulty science.
11 LUBA rejected Ms. Gould’s argument that this change was an impermissible modification of
the FWMP/FMP finding that Ms. Gould had “not established that the changes in the amount and timing of mitigation water materially affect the findings underlying the mitigation plan.” Gould TP at 577.
While the 50-acre feet figure does not account for water use by unapproved development that may be approved to occur on land included in the Phase A-1 tentative plan, the figure accounts
for all uses that may occur without County site plan review (i.e. single-family homes). No other
land uses may occur in Phase A-1 unless and until they obtain site plan approval and account for the water needs associated with that use. DCC 18.113.040(C); FMP Condition 10.12 This makes it clear that approval of the tentative plan and final plat for Phase A-1 does not authorize any water use beyond the use associated with single-family homes and that the 50-acre feet estimate
provided in 2018 is correct.13
Pinnacle Utilities, LLC also has a water rights purchase agreement with Big Falls Ranch for that gives it the right to purchase up to 315-acre feet of BFR mitigation water (less the 162-acre feet recently purchased by Pinnacle). There is substantial evidence in the current record and in the
2019 partial record to demonstrate that the initial contract exists and secures the right of Pinnacle
Utilities, LLC to purchase BFR Deep Canyon Creek water rights. The existence of the current contract with BFR, executed in 2019, is provided by Pinnacle’s water lawyer, Janet Neuman who was involved in drafting and reviewing the contract, Exhibit
F, and by BFR President Rex Barber, Jr., Exhibit G as well as by numerous statements by
Kameron DeLashmutt, Manager of Pinnacle Utilities, LLC. In her August 24, 2021 letter, Ms. Neuman again confirmed that the contract was executed on February 13, 2019 and has been extended through December 1, 2021; with the ability to be extended until December 1, 2022. See, Exhibit I. A memorandum of the contract filed in the record by the applicant’s attorney has
also been recorded with the Deschutes County Clerk. It shows that the contract was to expire on
June 1, 2021 but that it may be extended, as it has been. If the mitigation water purchase agreement did not exist, Pinnacle would not have been able to purchase 162-acre feet of mitigation water. The fact that the contract exists means that Pinnacle
has the right to purchase more than enough BFR mitigation water to serve all Phase A uses
which amount was estimated as 203-acre feet of mitigation during review of the tentative plan. This figure was not successfully challenged on appeal by Ms. Gould. As this figure includes all resort Phase A use, the 315-acre feet of BFR mitigation is also sufficient for all Phase A-1 uses.
12 Deschutes County and LUBA have determined in both the review of the Phase A-1 tentative plan and the resort’s golf course that FMP Condition 10 requires an estimate of the amount of mitigation water required for the development authorized by the approval and an update on the status of the resort’s water permit only. It does not require the applicant to “prove up” the water
rights. Gould TP at 581.
13 Mitigation sufficient to offset the quantity of water pumped is provided and approved by OWRD prior to pumping water. Gould TP at 577. Compliance with the mitigation requirements of the FWMP is assured by the annual reporting and County staff review required by Condition
38 of the FMP, not during the review of development applications by staff or the County’s
hearings officer. Gould v. Deschutes County, __ Or LUBA __ (LUBA No. 2020-095, June 11, 2021) (“Satisfaction of the no net loss standard is ensured through compliance with Condition 38, not Condition 10.”)
Despite the fact that the 50 AF and 203 AF figures were not successfully challenged on appeal and the issue is settled, Ms. Gould’s attorney Karl Anuta again filed evidence about water use by
the resort on August 23, 2021 attempting to convince the County to reopen the issue. It should
decline the invitation because consideration of the issue now is barred by law of the case. Furthermore, the evidence filed by Mr. Anuta is the Resort’s proposed Water Management and Conservation Plan which estimates the Resort’s water needs for the first 10 years of development. The standard does not require the applicant to mitigate water uses projected to
occur during the first 10 years. Instead, it must mitigate for uses allowed by the approval of the
Phase A-1 tentative plan. The information provided does not answer that question.
BFR Water Rights Have Been Transferred
Opponent Gould’s attorneys Karl Anuta and Jeffrey Kleinman claims that the BFR Deep Canyon
water rights have been transferred “to another location” so are not available for use as mitigation
water by Pinnacle. This is incorrect. Water rights are appurtenant to land. Their location has not been changed. The 2018 transfer T-12651 changed only the point of diversion of the BFR Deep Canyon water rights – the specific location from which the water rights are pumped. It did not transfer the water rights to another location. This claim is without factual or legal merit.
A Change from a POA to a POD is A Change of Source; Groundwater not an Authorized
Source of Water Mr. Anuta claims that a change of point of diversion of the Deep Canyon Creek water is a
change to a point of appropriation from groundwater. He also argues that groundwater is
not an FWMP authorized source of water – ignoring the fact that the source of mitigation water for the FWMP is the BFR Deep Canyon Creek water rights as determined during the review of the FMP. See, Exhibit E (fn 9, pp. 23-24) (accepting the use of water rights for mitigation by the FWMP as a proxy for creek flow). While the “POA” term is used to
describe this transfer, the correct term is “POD.” The approval of transfer T-12651, due
to the provisions of ORS 540.531(3)(c), created a new point of diversion of the Deep Canyon Creek water rights. It did not create a point of appropriation (POA) from groundwater.
ORS 540.531(3)(c) (emphasis added)14 says:
“(3) Notwithstanding subsection (2) of this section, the department shall allow a transfer of the point of diversion [from surface water to groundwater] under subsection (1) of this section in the Deschutes Basin ground water study area if:
14 Typically, wells are called points of appropriation and surface diversions are called points of
diversion. ORS 540.531(c), however, explicitly uses the term point of diversion for transfers
from withdrawal of surface water to withdrawal from groundwater when authorizing these changes in the Deschutes Basin, thus making it clear that the transfer of the Deep Canyon Creek surface water rights grants a new point of diversion which is a right to divert surface water.
(c) The use of the new point of diversion will affect the surface water source hydraulically connected to the authorized point of diversion specified in the water
use subject to transfer. The department may not require that the use of the new
point of diversion affect the surface water source similarly to the authorized point
of diversion specified in the water use subject to transfer under this subsection.” A point of diversion is the right to appropriate surface water – in this case from Deep
Canyon Creek. The approve of transfer T-12651, did not create a point of appropriation
from a new source of water.
Deep Canyon Creek Spring Flows are No Longer Available due to Transfer T-12651
Mr. Anuta claims that transfer T-12651, which changes the location of pumping for Deep
Canyon Creek water rights, “means that the cold spring surface water flows in Deep Canyon
Creek *** are no longer available as potential instream flow mitigation for the resort.” This transfer, however, did not change the water rights from a Deep Canyon Creek surface water right to a groundwater right. Mr. Anuta’s own expert, Mr. Lambie, refutes Mr. Anuta’s claim on page 3 of his September 7, 2021 Technical Memorandum stating:
“OWRD identifies all the water rights under T-12651 as surface water rights
because their source is surface water. They were not groundwater rights in 1967 and they have not become groundwater rights by way of any transfer or modification. The source of the water has not changed from the original surface
water rights from 1967….”15
Mr. Lambie is correct that the BFR Deep Canyon water rights pumped from groundwater remain surface water rights. OWRD staff has advised the County of this fact and has stated that these water rights will be certificated as surface water rights which will occur when BFR’s Claim of
Beneficial Use is approved. See, Exhibit J. Both before and after approval of the Claim of
Beneficial Use, the BFR Deep Canyon Creek water rights will be surface water rights. Water rights attorney Janet Neuman agrees noting that under ORS 540.531 the Deep Canyon Creek water rights remain surface water rights even when pumped from groundwater. See, Exhibit K, p. 5.
Claim of Beneficial Use
Mr. Kleinman argues that the filing of a Claim of Beneficial Use of Deep Canyon Creek water rights weakens Central Land’s case. It does not. As shown by Exhibit J, the water rights
certificates that will be issued in the future (over two years) will be issued as Deep Canyon
Creek surface water rights.
15 Mr. Newton does not describe the BFR water rights as a groundwater right as claimed by Mr.
Lambie. Mr. Newton does not opine on the topic. OWRD and State law say that the water rights
are surface water rights after transfer.
Additional Transfers are Needed After BFR Water Rights are Purchased
Mr. Anuta’s claims that additional transfers and actions remain to be taken by the applicant.
This claim has no bearing on the issue on remand. The issue on remand is whether the applicant can obtain Deep Canyon Creek mitigation water from BFR which it has already done. Furthermore, as explained by Ms. Neuman, the applicant has never argued that further OWRD review will not be required but Mr. Anuta’s position that the new point of diversion (pumping
from groundwater) must be transferred back to the original point of diversion (pumping directly
from the creek) before the water is available for mitigation is “simply wrong.” See, Exhibit K, p. 4. Even if such a transfer were required, which it is not, it does not mean that the BFR Deep Canyon Creek water rights are not available for purchase and use by Pinnacle. It only means it might take some time to accomplish.
Mr. Anuta acknowledges that the point of diversion of Deep Canyon water rights can be transferred back to surface water in the creek. The applicant has provided information from OWRD that proves that such a transfer is feasible and not lengthy. See, Exhibit L. As a result, it is clear that BFR Deep Canyon surface water rights have been purchased and that additional
rights remain available for purchase by Pinnacle in the future. The recent purchase by Pinnacle
is in an amount that far exceeds the water use required for Phase A-1. This assures that BFR will not pump any water under the Deep Canyon water rights from groundwater or directly from the creek.
Does An Application for a Backup Water Rights Permit Seek Approval of a New Source of
Mitigation Water
The fact the applicant has applied for a back-up water rights permit on the resort property does not propose a new water source for mitigation. First, the applicant has only applied and has not
obtained approval of a new groundwater. Second, the water pumped is not the source of
mitigation water referred to by LUBA in its question on remand. Mr. Anuta states, in response to this question, that the source of mitigation issue is not tied to the source of well water used by the resort. We agree. Instead, the source of mitigation water issue
is addressed by the FWMP and relates to a creek and wells on land owned by BFR many miles
north of the resort property. The FWMP requires the applicant to provide mitigation required by OWRD. OWRD requires that mitigation be provided from the General Zone of Impact as noted by the FWMP.16 The issuance of a new groundwater permit – assuming one is approved – will not change the applicant’s obligation to provide mitigation water from sources that comply with
FWMP or from a source shown to comply with the no net loss/degradation standard.
16 The sources of OWRD mitigation were inaccurately identified by the hearings officer as only
Big Falls Ranch and COID. The FWMP identifies these sources but also identifies an additional
source of mitigation water which is outside of the COID district. For purposes of the tentative plan, however, this issue is settled.
Thornburgh has “Double Counted” Water Rights
Thornburgh, quite clearly, is not double counting water rights as claimed by Mr. Anuta in his
rebuttal comments. Anuta says that the water cannot simultaneously be used by BFR for irrigation and claimed by Thornburgh as mitigation. This is correct but what eludes Mr. Anuta is the fact that this is not what is proposed and not what has happened. Pinnacle purchased BFR water rights. BFR discontinued pumping water to irrigate the lands to which the water rights
attached. The two events – pumping and mitigation – are not and will not be occurring at the
same time. There is no “double counting.” III. ISSUES OUTSIDE THE SCOPE OF REMAND
The following issues are addressed below to show that they are outside the scope of the issue
remanded to the County by LUBA and to respond on the merits in the event the issues are found to be relevant now or on appeal. Condition 17
Opponents argue that Condition 17 should be retained despite the fact the applicant has shown that it has purchased mitigation water rights for Phase A-1 from Big Falls Ranch, that it has a contract to purchase the same water for all of Phase A and that all of the water purchased is Deep Canyon Creek surface water.
Condition 17 is not, however, a relevant approval criterion applicable to the review of the tentative plan. It was discussed above because LUBA directed the county to consider whether the tentative plan and site plan will result in a violation of the no net loss/degradation standard of DCC 18.113.070(D) without Condition 17. Opponents’ arguments regarding Condition 17,
therefore, are outside the scope of remand and barred by the doctrine of law of the case.
Approval of the tentative plan/site plan does not require Condition 17 because Central Land remains bound to obtain water rights for mitigation from the sources specified by the FWMP unless and until it is amended and has done so. The approval of the tentative plan does not
require that Central Land purchase water from a source not identified in the FWMP – a
document that assures compliance with the no net loss/degradation standard. Consequently, Condition 17 is not needed. Depletion of Flow of Deep Canyon Creek
Ms. Gould and her expert, Mr. Lambie, allege that the flow of Deep Canyon Creek is either depleted or non-existent due to the pumping of groundwater by BFR. These claims are outside the issue on remand because Ms. Gould failed to challenge the sufficiency of the FWMP so all issues related to the efficacy of the plan are settled in favor of Central Land and Cattle Company.
Hearings Officer Briggs, who approved the FWMP, also determined that it requires the purchase
of Deep Canyon Creek water rights only and does not require Central Land to provide “wet water” in the creek in a certain volume. See, Exhibit E (fn 9, pp. 23-24). So, comments
suggesting that a certain volume of water from the creek is required to meet the “no net loss/degradation” standard are incorrect.
Mr. Lambie theorizes that the flow of the creek will not be able to be re-established once it has been depleted by groundwater pumping by discontinuing pumping. Mr. Lambie states that this event appears to have occurred and relies on a 2018 Google Earth photograph to make that claim and that his analysis confirms that this is what has occurred. He also says it will be difficult to
restore flows to the creek by stopping pumping once this event has occurred.
While we have been unable to submit expert evidence to rebut this claim because Mr. Lambie’s evidence was filed as rebuttal, expert evidence is not needed. Facts in the record show that Mr. Lambie’s claims are not correct. It is not correct that the springs no longer discharge and create
a flowing creek. Evidence filed in 2019 clearly shows a flowing creek that is discharging its cool
water into the Deschutes River after BFR pumping of its Deep Canyon Creek water rights from groundwater commenced. This issue is addressed in detail in a separate document that provides copies of documents from the 2019 record that disprove Mr. Lambie’s claim that the creek has run dry and that physics dictate this result. Additionally, BFR was not pumping Deep Canyon
Creek water rights from groundwater at the time the Google Earth photograph was taken in the
summer of 2018. The final order that authorizes pumping these water rights from ground, transfer T-12651, on and after November 20, 2018. 2019/2018 Record PDF 74-81. FMP Condition 10
Ms. Gould’s attorney Jeffrey Kleinman bases his legal analysis of issues on remand on his view of the requirements of FMP Condition 10 – a view that differs from that of the Oregon Court of Appeals, LUBA, the Board of Commissioners and the Phase A-1 tentative plan decision written by hearings officer Dan Olsen.
Mr. Anuta argues that the state water right permit has expired and that this violates FMP Condition 10. This issue has been addressed and resolved by hearings officer Olsen and LUBA so may not be raised again on remand. Furthermore, the issue is not one relevant to the issue on remand. A response to Mr. Anuta “expired permit” claim is provided later in this document.
All of Ms. Gould’s claims grounded in FMP Condition 10 were rejected by LUBA in its 2019 decision. Ms. Gould’s appeal of LUBA’s resolution of FMP Condition 10 to the Oregon Court of Appeals and her claims were rejected. As a result, claims based on Condition 10 are barred by the doctrine of law of the case. Beck v. City of Tillamook, 313 Or 149, 831 P2d 678 (1992).
The 2018 hearings officer’s decision appealed by Gould found: “Condition 10 appears primarily to be an informational requirement requiring documentation of the water permit and an accounting of mitigation ‘under the
water right.’ The record contains what appears to be a complete documentation
of the status of the permit and IDP. This criterion [Condition 10] is met.” LUBA accepted the hearings officer’s interpretation of Condition 10 which it summarized:
“The hearings officer concluded that FMP Condition 10 requires “documentation
of the state water permit and an accounting of mitigation ‘under the water
right,’” and that the condition was satisfied by the complete documentation of the
status of the [water rights] permit and IDP [Incremental Development Plan filed with OWRD that may be revised over time to match phased use of water].”
Gould TP at 580.
LUBA then determined that compliance with the mitigation plan is determined in annual reporting required by Condition 38:
“As established in prior appeals, the mitigation plan satisfies the substantive no
net loss/degradation standard for destination resort development. We agree with
intervenor that the details of the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation measures will be established by annual reporting required by FMP Condition 38.”
Gould TP at 583. In LUBA’s decision approving the Resort’s golf course LUBA explained the meaning of these findings, stating:
“Satisfaction of the no net loss standard is ensured through compliance with
Condition 38, not Condition 10.” Gould v. Deschutes County, __ Or LUBA __ (LUBA No. 2020-095, June 11, 2021).17
LUBA’s ruling makes sense given the fact that Condition 10, as we have shown before, was imposed to address the issue of the availability of mitigation water to meet the mitigation requirements of OWRD’s Deschutes Basin groundwater mitigation program prior to the drafting and approval of the FWMP. I have enclosed a timeline of approvals that illustrates and
documents this fact based on evidence in the record of this remand.
Furthermore, Condition 17 was imposed to assure compliance with FMP Condition 1; not Condition 10. Condition 1 says that “[a]ny substantial change to the approved plan [FMP] will require a new application.” LUBA Rec. 60, 70, Doc 8. As a result, opponents are barred by the
doctrine of law of the case from challenging the hearings officer’s determination of the meaning
of Condition 10 on remand.
17 It is highly likely that LUBA’s decision will be affirmed on appeal. The Court of Appeals has
notified the parties that it will be issuing a decision just three weeks after hearing oral argument.
The short time frame typically means that a decision will be affirmed without opinion.
Pinnacle Must Hold Mitigation Water Rights Now/Must Show Rights Have Been Transferred Instream
Opponents argue that Central Land must “hold” mitigation water rights, provide mitigation before approval of the tentative plan and/or show that Big Falls Ranch water rights have transferred water instream to obtain approval of the tentative plan.18 This is clearly wrong. It is also an attempt to re-write the requirements of the FWMP to be more stringent.
Central Land is bound by the FWMP but is also entitled to rely on it. As determined by LUBA, the FWMP requires mitigation to be provided when OWRD requires it. That is a date in the future after approval of the tentative plan when the resort is ready to pump water.
The Board’s 2007 CMP decision settled the issue of when mitigation is required. It is required to
be provided when required by OWRD. As our materials filed in 2019 show, until mitigation is required by OWRD, the 2007 CMP decision requires only that Central Land “is not precluded *** as a matter of law” from obtaining the required mitigation.” Central Land has shown that it is not precluded as a matter of law from obtaining the Big Falls Ranch mitigation water rights
described in the FWMP. It has also met the higher standard of showing that it has obtained the
water rights and that it is feasible for it to obtain additional water under its contract with BFR. Furthermore, this issue was settled against Ms. Gould by LUBA when it rejected Ms. Gould’s argument that the hearings officer erred by failing to impose the requirements of the FWMP as
conditions of tentative plan approval. LUBA found:
“[R]emoval of the dams and provision of mitigation water is required by the FMP approval and the tentative plan does not alter the mitigation plan. ***The hearings officer was not required to impose additional conditions to the approval of the
tentative plan [to assure compliance with the FWMP].”
Gould TP at 583. In so finding, LUBA agreed with Central Land that the tentative plan approval does not alter the
mitigation plan and, therefore, does not require the county to impose conditions of approval
related to the provision of mitigation water. Gould TP at 583. Additionally, mitigation is needed to mitigate for the impacts of using water. In the remanded tentative plan decision, the hearing officer found:
“The primary focus of the FWMP, the OWRD and the IDP all are on mitigating use of water. As the applicant has stressed, if there is no water use, there is no impact.”
18 Ms. Gould intends to oppose any and all water permits for some time to come and her attorney
has said “we are a long way from the time that building permits could issue here.” During this time period, there will be no water use and mitigation water will not be needed at all. This is one reason why the timing of mitigation is keyed to water use, not to development approvals.
Page 27 of 2018 Olsen Decision, 2019/2018 Record19 at PDF 518.
The hearings officer also found: “The key to the FMP, the OWRD permit and the ODFW letter is that mitigation occur in advance of using water. It is to mitigate water use, not development
approvals.”
Pages 28-29 of 2018 Olsen Decision, 2019/2018 Record at PDF 519-520.20 Additionally, Hearings Officer Olsen found that Condition 10 of the FMP requires an accounting
of the amount of mitigation required by the OWRD permit and does not require Central Land to
provide mitigation water at the time of tentative plan review. That finding was not disturbed on review by LUBA and cannot be collaterally attacked now. Removal of Dams on Deep Canyon Creek
The issues of when the two Deep Canyon Creek dams must be removed and whether they have been removed are outside the scope of remand. The issue on remand is the availability of the source of mitigation water specified by the FWMP (Big Falls Ranch Deep Canyon Creek water rights) and, if needed, the efficacy of a new source of mitigation water.
The resort is required to follow the FWMP’s dam removal requirements and the tentative plan application did not seek to change those requirements. Unless a change to the plan is approved and found to meet the no net loss standard. Furthermore, opponents are barred from raising the dam removal issue because it is barred by the doctrine of law of the case. Beck v. City of
Tillamook, 313 Or 149, 831 P2d 678 (1992). In her petition for review to LUBA, Ms. Gould
argued that the county should have required Central Land to remove one of the two dams in Deep Canyon Creek. LUBA disagreed finding that this obligation was imposed by the FWMP. Gould TP at 583.
Big Falls Ranch Contract May Expire Pinnacle has a current, valid contract right to purchase Big Falls Ranch water rights up until the time it expires. It is reasonable to assume the expiration date was set to give Pinnacle sufficient time to purchase the water rights. The fact the contract will expire is not relevant to determining
whether it is feasible for the applicant to purchase mitigation water from Big Falls Ranch at this
time when the contract is valid.
19 This is a reference to the document filed by applicant with its burden of proof. It was uploaded later by County staff. It includes the 2018 record and documents from the 2019 remand record.
20 These findings were relied on by LUBA in rejecting other arguments presented by Gould regarding the impact of changing the timing of providing mitigation water.
Mr. Anuta’s Claim that the OWRD Water Rights Permit has Expired
This issue was settled against Ms. Gould by LUBA. It, therefore, is barred by law of the case.
At LUBA, Ms. Gould argued the hearings officer erred in finding compliance with Condition 10 of the FMP because Ms. Gould was then challenging the extension of the resort’s water rights permit and that it had expired. LUBA ruled against Ms. Gould and found that the County did not err in finding that Central Land had established a valid water right. Gould TP at 581. Further, as explained by numerous letters by Ms. Neuman, the claim is without any legal merit. The issue
was also presented and rejected by LUBA when it affirmed the County’s approval of the Thornburgh golf course. The Resort has Drilled a New Well and Applied for New Water Rights Permits
These issues have no bearing on the issue on remand which is whether BFR mitigation water is available to mitigate for groundwater impacts of Phase A-1 water use. These arguments, therefore, should be rejected. The Resort has obtained approval of its golf course and is proceeding with development
authorized by its own risk including drilling a well. The mitigation required for that project was addressed by the County under FMP Condition 10 during the review of the golf course site plan and the BOCC determined that compliance with FWMP would be assured by the annual monitoring required by FMP Condition 38. The FWMP Does Not Account for Additional Impacts of Proposed Wells or Water Uses
The Resort is seeking, but has not obtained, water rights transfers and approval of a “back-up” water rights permit in the unlikely event Ms. Gould’s challenge to its current permit is successful. It understands that the Resort may not use more groundwater than authorized by its existing and valid water rights permit without addressing the impacts of an additional use of
water. It will do so in the event water use above the level authorized by its existing permit
occurs. Until then, this is not an issue and will not alter the efficacy of the FWMP mitigation program. Expert geologist David Newton has explained that changes in well locations on the Central Land
property will not change the mitigation required by the FWMP because they will tap into the
same regional aquifer as wells proposed when the FWMP was developed. It will not tap into a different aquifer that might have a different impact on the recharge of springs many miles downriver and north of the resort. Mr. Newton’s expert opinion demonstrates that Mr. Kleinman’s unsubstantiated claim that a “change in the source of quasi-municipal supply ***
would thoroughly disrupt the balance methodically assembled over years of legal disputes” is not
correct.
Water levels are falling. The well indemnification agreement will not mitigate for impacts to area wells. I’ve had to redrill my well.
LUBA’s decision found that “[i]n this appeal, petitioner does not challenge the mitigation plan, but instead challenges the Phase 1-A [sic] approval as inconsistent with the mitigation plan, as explained further below.” Gould TP at 573. The claim that water levels are falling is one that challenges the sufficiency of the mitigation plan. As no such claim was presented on appeal to
LUBA, it is barred by the doctrine of law of the case.
The CMP determined that well indemnification agreements would be required to mitigate for impacts to area wells which settled the issue of how these issues will be addressed by the Resort. The County’s resolution of this issue may not now be collaterally attacked by opponents.
Central Land Must Abandon Exempt Wells on the Resort Property LUBA has determined that the County need not require Central Land to remove the exempt wells located on the resort property as a condition of approval of the tentative plan and site plan.
Gould TP at 583. This issue is settled and may not be revisited due to the Beck doctrine of law
of the case. The FWMP is an Agreement with ODFW
Mr. Kleinman claims that the FWMP is an agreement with ODFW. It is not. It is the resort’s
mitigation plan. As explained in our prior submittals, ODFW reviewed and commented on the plan as did many other parties but the FWMP is not an agreement between ODFW and the Resort. Furthermore, ODFW has commented on this remand and does not object to the use of Big Falls Ranch Deep Canyon Creek water as mitigation water.
Central Land is Using a Well that Was to be Abandoned Central Land’s FWMP includes an agreement to abandon the domestic use of water from three “exempt” wells on its property. Mr. Anuta claims that this is a violation of the FWMP. This is
clearly not relevant to the question on remand. Nonetheless, we disagree with Mr. Anuta.
First, the FWMP’s requirement to abandon the three wells does not apply until the Resort’s water system is developed at some time in the future. See, p. 9 of the FWMP at 2019/2018 PDF 1117. Second, the exempt domestic use of water from these wells, over and above the amount of water
use allowed by the Resort’s permit, is and will be abandoned. Any water pumped from any of
the well will occur under the Resort’s groundwater permit. This is not a violation of the FWMP. The FWMP provides for abandonment of the wells to terminate the Resort’s right to use water over and above the water use limits of its water rights permit without mitigating for the water use. Those objectives will be achieved even if water is pumped from one of the former domestic
exempt wells.
Purchase of BFR Deep Canyon Water Rights Not Sufficient
Mr. Anuta’s rebuttal argues that Central Land must show where the BFR water is from, that the
temperature of the mitigation water before and after the mythical “de-watering” claim by Mr. Lambie is the same, that the quality is the same, where does the water flow into the Deschutes, what is the priority date of the water and that the water is protected in-stream. Central Land has shown it has purchased the BFR Deep Canyon Creek water rights specifically identified by the
FWMP. It has included maps and certificate numbers to prove this point. The water rights come
from Big Falls Ranch lands located north of Deep Canyon Creek. Deep Canyon Creek has not been “de-watered” as claimed by Mr. Lambie. BFR has discontinued pumping the water rights purchased. If they did not remain in the creek because
they have been removed by groundwater pumping, they have been returned because they are not
be pumped from any location whatsoever. The temperature of the flows in Deep Canyon Creek are not relevant to the issue on remand. Compliance with the FWMP does not require a particular creek temperature be achieved by
purchasing BFR water rights. The quality of the water is its temperature. The value of the water
rights as providing quality water has been settled by approval of the FWMP in 2008. The flow of the creek and the mitigation water into the Deschutes River, therefore, is not relevant and is unchanged.
The priority date of the BFR water rights is not relevant but it was not changed by approval of
the transfer of the point of diversion. The water rights, priority date and their character as surface water rights does not change because they are not new water rights. The transfer of the BFR water rights to an instream water right is an issue addressed by the
FWMP. The approval of the tentative plan proposes no change to the FWMP related to this
issue. As the issue was settled by approval of the FWMP, it is not subject to collateral attack now. Furthermore, the issue is clearly outside the scope of the question posed on remand which is the feasibility of purchasing mitigation water rights from BFR. The issue on remand in this case, as noted by LUBA in its recent affirmance of the approval of the resort’s golf course, is
narrow.
OWRD Review of Back Up Water Permit OWRD’s review of the back-up groundwater permit is completely irrelevant to the narrow issue
posed by LUBA on remand. Whether or not a new permit will or will not over appropriate the
aquifer has no bearing on the issue of mitigation. In a worst-case scenario, this finding might result in denial of the new permit but it does not impact the current permit that LUBA and the County determined remains a valid permit.
OWRD Timely Participated in the 2019 Remand Mr. Kleinman argues that ODFW “timely” participated in the 2019 remand. ODFW did not, however, timely participate in the 2018 tentative plan review as shown by the record of that
review I filed in the record of 274-21-000731-A. The County’s code requires that only persons who participated in the 2018 review of the tentative plan may participate in the review on
remand. Lot of Record Issue Raised by Gould and Central Oregon LandWatch Issue Settled and Barred by Law of the Case
The issue of the lot of record status of the land subject to the tentative plan decision was settled by the hearings officer on page 1 of this decision when he approved the tentative plan. Further of that issue is barred by the doctrine of law of the case. Beck v. City of Tillamook, 313 Or 148, 831 P2d 678 (1992) (issues decided by LUBA and issues upon which judicial review was not
sought are settled and not subject to review in a subsequent review by LUBA).
DCC 22.04.040(B)(1)(a) COLW claims that the subject property must be verified to be a lot of record concurrent with the
issuance of a permit because it is zoned EFU. This is not entirely correct. DCC 22.04.040(A)
says that “concurrent with or prior to the issuance of certain permits” a lot must be verified to be a lot of record. In this case, all parts of the subject property have been verified to be lots of record prior to the issuance of permits. This fact is shown by evidence the applicant has filed in the record in 2018 and 2021 (lot of record decision, deed and partition plan). In fact, the entire
resort property the BOCC found that the entire subject property was a lot of record in 2006 when
it the CMP and the decision would not have been approved unless the entire property was a lot of record. DCC 22.20.015(A)
Ms. Macbeth claims that the deed conveyances result in a violation of applicable land use regulations so the County may not approve the tentative plan. We disagree that the deeds created parcels and violated the requirement that new parcels be created by approval of a partition. As we explain below, the deeds were a step toward completing a property line adjustment and were
rescinded or corrected to convey a legal lot of record.
Furthermore, the issue presented by DCC 22.20.015(A) is narrower than suggested by Ms. Macbeth. The term “violation” is, however, defined by DCC 22.20.015(B). An act is only a violation if a prior decision has found it to be a violation, an owner has admitted it is a violation
in a voluntary compliance agreement or a finding of violation is settled by the review process for
the current application. Subsection (B) allows, but does not require, a hearings officer to make a finding about whether a property is in violation of applicable land use regulations. In this case, given the narrow scope of the issue on remand and the doctrine of law of the case, the hearings officer should determine that he is not required to address this issue and decline to do so.
Ms. Macbeth’s argument also fails to acknowledge that DCC 22.20.015(A) does not apply if any of the exceptions in DCC 22.20.015(D) apply. As relevant here, the law does not apply if the permit issued “results in the property coming into full compliance with all applicable provisions
of the federal, state, or local law and Deschutes County Code.” DCC 22.20.015(D)(1). The approval of the tentative plan and filing of the final plat will eliminate all property boundaries
and parcels within the area being platted. Weyerhaeuser Real Estate Development Company v.
Polk County, 246 Or App 548, 267 P3d 855 (2011). This action will result in the property coming into compliance with all applicable laws related to the approval of subdivisions. Federal laws do not apply. The 2018 approval and the County’s final plat review will assure compliance with all applicable state and local laws.
ORS 92.176 Ms. Macbeth claims that the recording of correction deeds does not validate new units of land under the provisions of ORS 92.176. We agree but disagree that this is relevant. The applicant is
not seeking to obtain recognition of the land conveyed as a legal lot of record. It is seeking to
eliminate all boundaries arguably created by the July 2021 quitclaim deeds. Furthermore, the
Weyerhaeuser case makes it clear that the approval of the final plat of Phase A-1 will eliminate all lots, parcels and units of land within the area platted if the actions taken by the applicant thus far are not efficacious.
Merits of Gould and COLW Claims The applicant erred and quitclaimed two small parts of its greater Resort property to Pinnacle Utilities, LLC at the end of July 2021. These are areas that have received County land use
approval to be utility facilities for the resort in the decision under review on remand.
Mr. Kleinman filed copies of the deeds in the record. They are recorded at 2021-44813 and 2021-44814 on July 30, 2021. The mistaken conveyance of these properties has been corrected by Central Land and Pinnacle as follows:21
A. Pinnacle quitclaimed all interest in the land conveyed by 2021-44813 back to Central Land and Cattle Company, LLC. This deed provides that it does not create a parcel and its intention is to eliminate all rights Pinnacle may have acquired in a part of Tax Lots 7800 and 7900.
B. Central Land has caused a correction deed to be recorded for 2021-44814. The deed corrects the legal description of the land conveyed by it to convey the entire lot of record that includes the land previously conveyed. Pinnacle is now the owner of the entire lot of record.
C. The parcel conveyed by the correction deed is Tax Lot 7801. It is a lawfully created lot of record. It was created as a lawful parcel in 1918 by a deed from the State of Oregon to
21 Given the fact that Central Land and Cattle Company owns many contiguous lots of record,
the deeds would have been allowable as a lot line adjustment between Central Land’s lots of
record. The applicant decided, however, to take the less time-consuming route of correcting the legal description of one deed and quitclaiming all interest conveyed by the other.
John T. Park and has remained as a lawful parcel since that time. In 1979, a partition was approved that showed Tax Lot 7801 as a separate parcel of land.
The mistaken recording of 2021-44813 and 2021-44814 is not consequential. ORS 92.017 clearly states that the recording of deeds does not create new lots or parcels. In LandWatch Lane County v. Lane County (Doughty), __ Or LUBA __ (LUBA No. 2019-044, October 15, 2019), LUBA held that deeds that illegally conveyed a larger property into different ownerships without
partition approval did not create new parcels. It explained:
“[N]ew parcels have not been created because the deed creating the parcels occurred after land use laws regulating land division became applicable. ORS 92.017 provides that “[a] lot or parcel lawfully created shall remain a discrete
lot or parcel, unless the lot or parcel lines are vacated or the lot or parcel is
further divided, as provided by law. (Emphasis added.) In the context of land use
law, division by law requires a subdivision, partition or, prior to the applicability of the land division regulations, a deed conveyance.”
LUBA’s decision and ORS 92.017 means that the lawfully created parcels remain intact despite
the conveyances to Pinnacle. These lots comprise all of the land that will be platted when the Phase A-1 tentative plan receives approval and a final plat is recorded. It is also clear that deeds alone do not create parcels. For instance, a property line adjustment, by
definition, does not create parcels but deeds are recorded to change lot boundaries without
creating new lots or parcels. ORS 92.010(12). State law requires that new deeds be recorded to effectuate the adjustment of existing lots or parcels. ORS 92.190(3). Additionally, to effectuate a lot line adjustment, a portion of one or both lots needs to be conveyed from one owner to the other so each owner can convey the property to themselves in its final, approval configuration.
The deeds that convey parts of each property do not create new parcels.
Ms. Macbeth claims that the case of Ogan v. Ellison, 297 Or 25, 682 P2d 760 (1984) holds that a deed that divides land without first obtaining partition approval is not void and creates a parcel. That is incorrect. To the contrary, the case holds that a person who purchases a part of a lawful
parcel that has not been lawfully divided “cannot enforce such an illegal conveyance.” Ogan at
31. The case provides remedies to the purchaser but none result in either the creation or ownership of the illegal parcel by the purchaser. The Court held: “The purchaser may, upon discovery of the illegality, (1) sue for rescission and be
placed in status quo, Heverly v. Kirkendall, 257 Or. 232, 235, 478 P.2d 381
(1970), (2) rescind the contract absolutely and sue for any moneys paid for the purchase of land, Kruse v. Bush, 85 Or. 394, 397, 167 P. 308 (1917), (3) affirm the transaction and sue for breach of contract, Nisson v. Tillman, 213 Or. 133, 139, 323 P.2d 329 (1958), or (4) affirm the transaction and maintain an action for
fraud, Musgrave v. Lucas, 193 Or. 401, 238 P.2d 780 (1951).”
Ogan at 31. These remedies result in a return to the status in place prior to the illegal sale and/or an award of money damages. Ogan, therefore, contradicts Ms. Macbeth’s argument.
Furthermore, the Ogan decision predates the adoption of ORS 92.017 in 1985, the law LUBA has found retains lawfully created lots as such until they are lawfully divided.
Ms. Macbeth also claims that in Wolcott v. Lane County, __ Or LUBA __ (LUBA No. 2017-096, February 6, 2018) LUBA “explained that the recording of a deed produces parcels.” This is not correct. Instead, LUBA said “[r]ecording a deed *** was not and is not a lawful means of creating a parcel.” This finding is something entirely different and does not address and resolve
the issue raised by Ms. Macbeth.
Furthermore, the July 2021 deeds were, at most, a partially completed property line adjustment (additional deeds are needed to describe the lots increased in size). The deeds moved the boundary lines of lawfully-created parcels. This may or may not have required County approval
(the County does not have an ordinance that requires such approvals). A property line
adjustment, by definition, does not result in the creation of a lot or parcel. ORS 92.010 (12)
Wolcott v. Lane County, __ Or LUBA __ (LUBA No. 2017-096, February 6, 2018). A property line adjustment, therefore, does not divide land and does not require partition approval from Deschutes County.
Assuming County approval of a property line adjustment is necessary, Central Land could have secured County approval of a property line adjustment to rectify the lack of such an approval. Pinnacle determined, however, that it made the most sense to quitclaim the .5-acre area of land back to Central Land and to correct the legal description of the other deed to match that of a legal
lot of record, TL 7801. The quitclaim deed back to Central Land returned the .5-acre parcel to
the ownership of the Grantor and released all rights of Pinnacle in Tax Lots 7800 and 7900. All of the lots involved in the de facto adjustments have been determined by the County to be lots of record with the exception of TL 7801. TL 7801 is a lot of record due to County approval
of a partition in 1979 and its creation by deed long before the County regulated land divisions.
The following is an inelegant illustration of some of Central Land’s lots of record:
Exhibits N-1, N-2 and N-3 illustrate the adjustments. Exhibit N-1 shows the relative location of legal lots of record Tax Lots 7800 (part), 7801 and 7900. Tax Lot 7801 was created by
Deschutes County partition approval MP-79-159. Tax Lot 7900 was determined to be a lot of
record by LR-98-44.22 The exhibit also shows a part of Tax Lot 7800. TL 7800 was determined to be a lot of record by LR-91-56. Exhibit N-2 illustrates the location of the .5-acre area of land conveyed by the July 30, 2021
quitclaim deed. Exhibit N-2 shows how the property lines of Tax Lot 7900 could be adjusted in
one or more steps to create the shape conveyed by the July 30, 2021 quitclaim deed. Deschutes County applies State law when it reviews property line adjustments. According to ORS 92.010 (9) and (9)(b), “partitioning land,” the action that requires County approval of a land division does not include adjusting property lines. The adjustment may not create an additional parcel.
ORS 92.010 (12). It does not.
ORS 92.192 (2) requires that the lot reduced in size comply with the applicable zoning ordinance. In this case, this is the DR zoning district, DCC Chapter 18.113. It makes the lot standards of the EFU zoning district inapplicable. This fact was determined by hearings officer
Olsen on page 9 of the tentative plan decision. DCC 18.113.060 (G) says that minimum lot area,
width, lot coverage, frontage and yard requirements of the EFU zone do not apply. It imposes exterior setbacks for new construction but does not set lot standards for non-residential lots. Additionally, the CMP does not set standards for nonresidential lots and the lot size approved is no smaller than the size of lots approved by the tentative plan.
Exhibit N-3 illustrates how Tax Lot 7801 could be adjusted, by one or more property line adjustments to create the lot conveyed by the July 31, 2021 deed. The size after adjustment is 10.73 acres. Like the .5-acre lot, this lot complies with the lot requirements of the DR zone. To rectify this error, Central Land corrected the legal description of the land of the quitclaim deed to
convey all of Tax Lot 7801 to Pinnacle. Tax Lot 7801 is a legal lot of record.
Thank you for your consideration of our arguments and responses to arguments presented by others. Please affirm approval of the tentative plan without its Condition 17.
Respectfully submitted this 14th day of September, 2021.
Liz Fancher
Liz Fancher, Attorney for Central Land and Cattle Company, LLC OSB 812202
22 To obtain lot of record approval, the property owner must show that the lot in question was lawfully created.
Thornburgh will at all times comply with the terms and conditions of the OWRD water
right approval. As described above, the terms and conditions include providing flow
mitigation for each phase of development prior to beginning water use, and monitoring
and reporting water use to OWRD. In addition, Thornburgh will obtain all of its mitigation water through the conversion of existing irrigation water right into protected instream water rights and will not rely on canal lining, piping or similar conservation measures as part of its OWRD mitigation. Although conservation actions can be beneficial and reduce total surface water use, they have been questioned as viable measures for mitigating new ground water development. By providing mitigation water from the conversion of existing water rights, Thornburgh will eliminate approximately
7.5 to 10.4 cfs of existing surface water diversions during the irrigation season, restoring C1J natural stream flow to the system at or above the area of impact from Thornburgh wells
during the time period when stream flows are typically the lowest and temperatures are warmest.
B.Specific Mitigation from Big Falls Ranch
Thornburgh will fully exercise the option for purchasing 464.9 acres of water rights under
its existing option agreement with Big Falls Ranch, Inc. in fulfilling its mitigation obligation under the OWRD water right. By making this commitment, Thornburgh ensures that nearly two-thirds of its total mitigation water (expected total 836.82 AF per year) will come from a source that contributes cold spring-fed water to the Deschutes
River above the Thornburgh location of impact. By retiring an existing irrigation water right, this measure will also result in restoration of 5.5 cfs of cold surface water flow to the Deschutes River from Deep Canyon Creek during the irrigation season.
C.Elimination of Existing Irrigation Pond
In connection with the instream transfer of the Big Falls Ranch irrigation water right rights, Thornburgh will work with the landowner to eliminate the existing instream
impoundment used as part of the irrigation system. This is expected to provide a temperature benefit by eliminating temperature increases due to ponding effects.
D.Terminate Use of Existing "Exempt" Wells on Thornburgh Property
Thornburgh will terminate domestic and livestock use and abandon three existing wells on the Resort property when the Resort water system is developed. The three wells were originally constructed for domestic use serving three homes on the property. All three wells were in use for domestic purposes until the property was acquired by Thornburgh;
currently, two of the wells are used for such purposes. The approximate location of the three wells is shown on Figure 7.
Domestic water use for each of the three wells was estimated at 250 gallons per day
(gpd). Of the three exempt wells, one is used to irrigate about one-half acre that is used
to pasture goats. Until recently, another well was also used to irrigate about one-half acre and for livestock watering for up to about 20 horses at a time. The third well was used for
9
LUBA 2018-140 Record - Page 0666LUBA 2019-136 AMENDED RECORD - Page 1739
(ozh*FekTfrr0@hk2=,nfzhzEItnb€l^n2I2{R*frlDfbdItEo1EztbE+2€(of96m,sl'llit|,II(\-Wldght-PHl lsi26oor)1EOBlni :taI o8gFFgo6I t$1rsFEEEEI'f,$[Flfi F;<$5;E4to5gagJ'\f5'FeNil;a{oo{dIo,1,..Jl GsrlF)otu>l>3t3al@{lco_gJ{&oq!Tno3llFNito6oCllI+DIoIq6,E=oNtI3',fo{r{FEIt.6{$a6momzoffiffiFi{d55EEzEa$rtriHrs$$i$Efl FIts6gEPP..tE(t)(r!osFIOURE 31007-101 -07PrutrNEApr[ 2008UE:S.SdldnckEruOI}D.NeudonProposed Water Right Mitigation Transfers ; Phase A - ThornburghBlg Falls Ranch Co.Deschutes Cou ntl.UEpgff2008-203ffiilETNCONSUrIANT5 INC.Errlh, Watpr and R@k SpeciellslBFdid!ffi1S:0{t 604,S-HzoH.0QenF+tN)Ft9{LUBA 2019-136 AMENDED RECORD - Page 1001
:IJ)7J1-wLR€htJHl l*26 04,/10/2m8 SSol\llEr-llz9loFfiil:lf;liF$illliltF'" l:lztol-{tml"Aa f;$$g i;I f taESSgB$$tsi5fiP PEIEfr€ s.g;rs6'eF0FEaNil:6fFgtF5trtrt-nomzUffiNffiffi\alHI/f\9E5f[:s1 i4B# FEFI gFgg6Etr€F8z3l.5I{F6p{.IaTno3ilN6@irDaIJstEA.E{g)54.,oootlIEnlr,rl:,Ft;31IozhRarlHhlDh(Dsh?2moELr3h6+hnzE€at$zzmh{f2(oz*2Iafz{2*€@€la{PROJFST NO.1007-10't{7Aprll 2008S;EDutri{ 8tS.ScfienokM.PsdaDEE]ilEO d:FIGURE 4NEWTONilEtrnCONSUITANTS INc.Errli, WEter Erld RGk apeck liBtEPh fli 601-*60 F.r: gl M@rProposed Water Right Mitigation Transfere - Phase B - ThomburghFalls Ranch Co.BigDeschutesjt-1l-Edz"Y x.loQet)ts(rrJ>lN)H(].) \)LUBA 2019-136 AMENDED RECORD - Page 1002
If, at the time of development, insufficient off-site areas are not available, the applicant proposes
to provide funding for implementing mitigation In a dedicated fund for use by ODFW to use to
improve or purchase mitigation sites within Deschutes County. After the mitigation is
established, the applicant wlll provide continuing funding for the lifetime of the development
through a real estate transfer fee.
3.The applicant's fish mitigation plan
The applicant obtained 2,129 acre-feet of water rights to support the proposed development
year-round. The development's water supply is to be obtained from six wells that are proposed
to be drilled on the property. The water rights were granted upon a finding that the applicant was
responsible for providing 1,356 acre-feet of mitigation water.7 The applicant proposes to obtain
836 acre-feet from Deep Canyon Creek irrigation rights that were granted to Big Falls Ranch.
The remaining mitigation water is to be obtained from the Central Oregon lrrigatioi:, District
(COID}.
With respect to the Deep Canyon Creek water, irrigation rights involve water flowing for six
months of the year (mid-April through mid-October). Based on average daily consumption for
the resort, the applicant asserts that the proposal will result in more mitigation water flowing into
the creek during the summer months, that the average daily consumption of water from the
development. To address water temperatures that affect salmonid habitat, the applicant has
entered into an agreement with Big Falls Ranch to remove two diversion dams from the creek.
As a result, water will flow directly from cold water springs and seeps into the creek, rather than
be impounded above ground.8 In addition, the applicant proposes to abandon three on-site wells
that pump approximately 3.65 acre-feet from the aquifer, and provide for thermal modeling on
Whychus Creek. In the event the hearings officer concludes that the proposal will likely increase
the creek water temperatures, the applicant provided evidence that it can purchase mitigation
credits for 106 acre-feet of water from Three Slsters Irrigation District to increase instream water
flows, and thereby mitigate the impact. The applicant asserts that the latter three measures
have not been required by OWRD or ODFW, but are in addition to the required mitigation.
4.The Parties' Evidence
The applicant argues that the combination of on-site and off-site mitigation Is sufficient to
demonstrate that the proposal satisfies DCC 18.113.0?0(D}, and continued compliance can be
assured by the adoption of conditions that require continued monitoring of the habitat in the
selected areas.
The opponents disagree. The opponents' evidence regarding impacts to wildlife can be reduced
to three main points: (1} the applicant's use of the HEP analysis and choice of indicator species
are inadequate to identify all of the impacts of development on fish and wildlife; (2) the applicant
7 The Oregon Water Resources Department (OWRD) calculated the needed mitigation water based on a 60 percent consumpUve use, meaning that 60 percent of the resort water supply will not be returned to the aquifer through golf course irrigation or other surface applications. The opponents dispute that ORWD used the appropriate consumption rate. 8 The parties agree that surface water tends to be warmer than aquifer water during the summer months.
M-07-2; MA-OB-6 22
LUBA 2018-140 Record - Page 0213LUBA 2019-136 AMENDED RECORD - Page 1286
improperly identified the extent of impact of the proposed wells and underestimated its severity
by assuming only 60 percent of the water used for the development would be consumed; and
(3)the applicant has not adequately demonstrated that the proposed mitigation will compensate
for the lost habitat or be successful in the long run. Further, the opponents argue that other
alternatives, such as the purchase of lmpacL ...... i�nd and full restoration, are preferable to the
more limlted restoration efforts proposed for BLM land.
a.Indicator Species/HEP analysis v. Extensive On-site Ground Surveys
The opponents point out that the applicant heavily relied on species survey data from Eagle
Crest Ill and on general habitat investigations performed in the area that were then evaluated in
a modified HEP analysis. The opponents argue that these studies and the applicant's indicator
species are inadequate to account for and address the complete biota on the site. They also
contend that the applicant has failed to demonstrate that the modified HEP analysis adequately
accounts for the impact of development on the site, suggesting that a full HEP analysis is the
minimum necessary to address habitat impacts. They argue that the· applicant's superficial
survey is inadequate to provide essential baseline data from which to measure the success or
failure of the applicant's mitigation plan. The opponents argue that at the very least, the
applicant must provide a two-year survey of plant and animal specials, noting that a multi-year
survey better accounts for the vast fluctuations in animal populations that can occur due to site
conditions, weather and disease. Finally, opponents argue that even if the indicator species can
adequately replicate habitat needs for a wider population, the applicant's studies do not address
the cumulative impact of development in the Tumalo area.
The applicant concedes that indicator species will not fully account for all of the many and
varied species on the site and the effect the development will have on them. However, the
applicant argues that such specificity is not needed to satisfy DCC 18.113.070(E>). Toe applicant
asserts that its analysis has been subject to extensive review and comment from ODFW, and is
more extensive than plans for other destination resort developments In the area. The applicant
argues that its assumptions are reasonable, arid the modified HEP analysis adequately
quantifies t�e Impacts, and provides a workable methodology to compensate for the Impact.
With respect to cumulative impacts, the applicant argues that it considered and addressed
reasonably foreseeable cumulative impacts. See August 12, 2008 rebuttal, Ex. B-14. The
hearings officer agrees.
b.Adequacy of Fish Mitigation Plan
Opponents argue (1) the Deep Canyon Creek water is already pledged to mitigate development
on another property or has been abandoned;9 {2) the amount of mitigation water required by
11 Opponents argue that the acquisition of water rights is not evidence that water will actually be returned to the rivers and streams as alleged. According to opponents, water rights are merely paper representations of water quantities; and do not mean that the cool water needed to maintain lnstream temperatures will be available. The hearings officer understands the limitations of the water rights process, but concludes that under Orego·n water law, the only way to adequately account for water In the streams is through the ORWD administration. Therefore, the hearings officer concludes that evidence
M-07-2; MA-08-6 23
LUBA 2018-140 Record - Page 0214LUBA 2019-136 AMENDED RECORD - Page 1287
OWRD is inadequate to assure that surface water flows will be maintained year-round, as fish need more water early in the spring season; and (3) the use of surface water will degrade existing conditions by taking cold water out of the aquifer where it seeps Into Whychus Creek and replacing.it with warmer surface water.
The applicant acknowledges that the .proposal require the development of wells on the property
that will affect basin water flows. However, the applicant argues that It has addressed those impacts by purchasing mitigation credits from COID, and by acquiring irrigation water rights that will return water to Deep Canyon Creek. They argue that both OWRD and ODFW have reviewed its proposal and have agreed that the proposal mitigates both water quantity and quality that will be removed from the aquifer due to the resort development. The applicant supplied a copy of an agreement between the owners of Deep Falls Ranch and the Daniels Group showing those owners have agreed to the removal of two dams that diverted flow from Deep Canyon Creek.10 In response to testimony from opponents that the proposed mitigation
does not adequately address increases in water temperature in Whychus Creek, the applicant
argues its proposal will have little or no impact on water temperatures on the creek. Even if
water temperatures In Whychus Creek do increase incrementally, the applicant asserts that the
increase can be addressed by requiring the applicant to fund a water conservation· project sponsored by the Three Sisters Irrigation District to return 106 acre-feet of water to instream uses.
The OWRO mitigation requirement adequately addresses water quantity; it does not fully address water habitat quality. Its assumptions regarding the benefits of replacing more water
during the irrigation season than is consumed on �n average daily basis by the resort does not account for the higher water consumption that will likely occur during the summer months. Therefore, the hearings officer concludes that the additional mitigation offered through the Three Sisters Irrigation District restoration program is necessary to assure that water temperatures in Whychus Creek are not affected by the proposed development.
c.Adequacy and Llkely Success of the Proposed Mitigation
The opponents generally dispute that the applicant's proposed mitigation plan will result in no net loss to fish and wildlife resources. The opponents argue that the plan assumes that terrestrial animals will adapt to the built environment on the site, or will be attracted to the . improved habitat that is being provided off-site. The opponents argue that such assumptions do not take Into account the fragmentation of habitat, or address species recovery from the changes in the habitat. Further, opponents argue that the proposal does little to address. or
combat the problem of invasive species, such as starlings, who are attracted to the environment
regarding the location and volume of water rights ·1s substantial evidence as to the fikely location and volume of water in the Identified streams. 10 The Daniels Group owns a former strip mine that has recently been proposed to be redeveloped for residential uses. It is this entity· that the opponents assert owns or has options to the Deep Canyon Creek water. However, the opponents have not provided evidence as to the nature and extent of the conflict. The hearings officer concludes there is substantial evidence in the record to support a finding that the appficanl has the authority to use water from Deep Canyon Creek, and to remove dams that would impede flows from underground seeps and springs.
M-07-2; MA-08-6 24
LUBA 2018-140 Record - Page 0215LUBA 2019-136 AMENDED RECORD - Page 1288
September 24, 2019
Page 2
remand, as Mr. DeLashmutt has pointed out in previous submissions and in his
final argument.
Cold Water Mitigation in Deep Canyon Creek.
Applicant is already providing cold water mitigation in Deep Canyon Creek,
several years ahead of the time that was anticipated in the Fish and Wildlife
Mitigation Plan approved by the county as part of its approval of the Final Master
Plan. Big Falls Ranch ("BFR") holds the only water rights for the use of water from
Deep Canyon Creek (Certificates 76371 and 88027) and the ranch has stopped
diverting any water from the creek.
Transfer T-12651 approved a change from the previously-used surface water
point of diversion ("POD") on Deep Canyon Creek to groundwater Points of
Appropriation ("POA") at three wells. Paragraph 7 of T-12651 says, "The original
point of diversion of surface water shall not be retained as an additional or
supplemental point of diversion under the transferred portion of the right."
(Emphasis added.) These commitments are also included in the terms of the Water
Rights Purchase and Sale Agreement between my clients and Big Falls as follows:
"6. Removal of Deep Canyon Spring Impoundments and Dams.
a. Immediately upon the Effective Date [February 13, 2019], and for so
long as this Agreement is effective,
Seller shall:
i. Cease diverting surface waters directly from Deep Canyon
Creek.
ii. Cease impounding surface waters of Deep Canyon Creek and
will not otherwise impede the flows of such surface waters to the
Deschutes River_ Seller will open any existing release valves,
flashboards, or other devices that would allow surface waters to
flow through any earthen barriers or impoundment structures in
Deep Canyon Spring or Deep Canyon Creek on the Big Falls
Ranch
***
b. Buyer, at its sole discretion and at its sole cost, will cause the
removal of the upper dam on the Weigand and Reimenschneider
property (the 'W & R Property") adjacent to the Big Falls Ranch.
***
c. Buyer, at Buyer's cost, may remove any remaining earthen barrier
or impoundment structure on the Big Falls Ranch in Deep Canyon
Creek at any time after April 1, 2024 . . . ."
itLUBA 2019-136 AMENDED RECORD - Page 0272
September 24, 2019
Page 3
Thus, BFR is legally and contractually bound to cease pumping surface
water from the creek and has already met this commitment. My clients and Big
Falls have also already removed the weir (flashboards) from the concrete channel
previously used by Big Falls to impound and divert the spring water from the creek
into their irrigation pumps. As a result, the water can now flow through the
concrete channel to the Deschutes River.2 Applicant acknowledged that beavers
had subsequently blocked the channel, but the beaver dam has now been removed,
as shown by the photos and videos submitted during the rebuttal period.
The upper dam (not on BFR property) has already been breached as well,
though beavers have since plugged that opening as well. That beaver dam and the
remaining earthen footings will be removed in accordance with the FWMP prior to
construction of Phase A as required.
The important point is that without the diversion by BFR, cold spring water
is now allowed to flow down Deep Canyon Creek to the Deschutes River. This flow
is legally protected in the creek because no other surface water rights are
authorized for this source and OWRD's administrative rules and its water
availability analysis substantially preclude new surface water rights in the
Deschutes Basin. Furthermore, ODFW has a pending permit application
(Application IS-70695) for an instream right in a segment of the Deschutes River
that includes Deep Canyon Creek for 250 cfs of instream flow, thus further insuring
there could not be any new water rights available at this location.
Gould Submission/Letter from Robert Long.
Through her attorney Jeffrey Kleinman, Ms. Gould offered a September 17,
2019 letter from Consultant Robert Long. Mr. Long says that he reviewed "two
rights under Permit S-32049, one right under Permit S-37392, and one surface
water certificate 76372." He then goes on to say that his letter "focuses on the
likely permitting requirements necessary to use the Primary water rights under
Permit S-32049 as instream mitigation for new water rights or a water right
transfer downstream."
I am not sure why Mr. Long is discussing these three water rights at all.
First, both permits he references were proven up and replaced by certificates some
time ago. Certificate 44281 was initially issued upon proving up of Permit S-32049
and Certificate 44283 was issued upon proving up of Permit S-37392. In 2000,
OWRD approved transfer T-6854, which made changes to those two certificates
2 As previously noted, the remaining concrete footings will be removed soon
after April 1, 2024, which is the completion date for T-12651.
LUBA 2019-136 AMENDED RECORD - Page 0273
EXH|B|T B PAGE-
From: Rex Barber <bigfalls@cbbmail.com>
Date: Augusl27,2OI9 alL2:27:45 PM PDT
To: Kameron De Lashmutt <kameron@ bendcable'com>
Subject: RE: remand and confirmation of water
Kam,
The agreement is for in excess of 50 acres
Rex Barber
Sent from Mail for Windows 10
From: Kameron Delashmutt
Sent: TuesdaY, August 27,2019 11:55 AM
To: rexba mail.com:'Rex Barber'
Subject: remand and confirmation of water
Rex,
per our conversation we have a hearing next Tuesday on the remand of the Tentative Plan. We have
provided the memorandum that we executed which confirms the existence of our agreement. Jan
Neuman has provided a statement that our agreement is for amounts far in excess of the 50 acres of
mitigation water that are required under this initial tentative plan.
As we discussed it would be helpful to provide the hearing officer confirmation from you as the seller
that this is correct and our agreement for water rights far exceeds 50 acres of mitigation water'
lf you could please simply confirm this
Sincerely,
Kameron DeLashmutt
s41-3s0-847e (P)
866-4e2-s3s4 (F)
Theinformationinthisemailisconfidentialandonlyfortheuseofthereciepientnamed' Youarenot
allowed to forward it on without the permission of the sender. lf you have received this message in
error please delete it.
LUBA 2019-136 AMENDED RECORD - Page 0871
modification of the mitigation plan to show that it still complies with the
approval standards. If this is not done, the earlier agreement to mitigate is
rendered meaningless and the foundation for the development approval is
removed. Rather than apply for a modification though, the applicant merely
had its expert say the newly proposed mitigation will be good enough
If the applicant will not comply with the fish mitigation plan documents
it verified to LUBA and the Court Appeals that "it must comply with," then the
required process for review and approval of new mitigation plan documents
must be initiated. The hearings officer erred in failing to so hold
A. Water Issues
1. Water Quantify Issues
The hearings offrcer allowed the applicant to make significant changes in
the FMP water mitigation requirements without going through the required
modification process. He simply concluded that the applicant's changes are not
"substantial." He reached this conclusion despite clear numerical and timing
changes from the adopted CMPÆMP, including (1) a reduction of mitigation
water in Phase A from 610 AF (acre feet) to 203 AF (and down to only 50 AF
in the current supposed subphase of Phase A), and (2) the elimination of the
provision for all mitigation water to be provided in Phases A and B.
Page 43 - PETITION FOR REVIEW
LUBA Record000250LUBA 2019-136 AMENDED RECORD - Page 0503
Kameron Delashmutt
From: Sent: HENDERSON Sarah A* WRD [Sarah.A.Henderson@oregon.gov] Monday, September 09, 2019 3:14 PM
To: Kame·ron Delashmutt
Subject: RE: surface diversion transfer to groundwater appropriation
Hi Kameron,
Please see my response below in red ... I am directing you to others so that you receive the correct information.
Sarah
***********************************************************
Sa rah He nde rs on Flow Restoration Program Coordinator Transfer and Conservation Division
Water Resources Department I 725 Summer St. NE, Suite A I Salem, Oregon 97301
Ph: 503.986.0884 I fax: 503.986.0901
Email: sarah.a.henderson@oregon.gov I Web: http://www.oreqon.gov/owrd
************************************************************
From: Kameron Delashmutt <kameron@bendcable.com>
Sent: Monday, September 09, 2019 2:53 PM
To: HENDERSON Sarah A* WRD <Sarah.A.Henderson@oregon.gov>
Subject: surface diversion transfer to groundwater appropriation
Sarah,
In our conversation with ODFW the other day you confirmed that a transfer of the Big Falls.Surface water point of
diversion to a groundwater point of appropriation does not change the underlying permit and that when OWRD issues
new certificated to Big Falls that those certificates will be for surface water permits. I would appreciate your confirming
that I have this correct. Yes, the confirming certificates issued from the transfer of a sw pod to•gw poa will be
considered surface water rights.
Also if you could send to me the legal rules or policy positions that place the moratorium on the issuance o'r new surface
water permits in the Middle Deschutes Basis I would appreciate it. From Kyle Gorman I understand that there is both a
limit on new surface water permits because the river is over allocated and also that there is a ban on new surface
permits for use in the summer months for any tributary to the Columbia River. If you could provide that info or direct
me to it. Please contact Dwight French for this information (Dwight.W.French@oregon.gov )
Lastly I understand ODFW has a application for 250 cfs of instream water in the Deschutes. Where could I find a copy of
that application? Please contact Patricia McCarty for a copy of the application IS-70695
(Patricia.E.McCarty@oregon.gov)
Thank you for the help.
Sincerely,
Kameron Delashmutt
541-350-8479 {P)
866-492-5354 (F)
1
LUBA 2019-136 AMENDED RECORD - Page 0754
11- ToST P"
September 24, 2019
HAND-DELIVERED
Jacob Ripper, Senior Planner
Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, OR 97703
Janet E. Neuman
janet.neuman@tonkon.com
503.802.5722 direct
503.221.1440 main
RE: 247-19-000611-A, Land Use Board of Appeals Remand (LUBA No. 2018-140)
Dear Mr. Ripper:
As you know, I represent Kameron DeLashmutt, Pinnacle Utilities, LLC
("Pinnacle"), and Central Land and Cattle, LLC ("Applicant") on water rights
matters pertaining to the Thornburgh Resort ("the Resort"). This letter is provided
as part of the final argument for the Applicant in the above-referenced land use
matter.
Introduction.
The issues in this remand are narrow. Applicant's land use counsel quoted
LUBA on the remanded issue in Applicant's Burden of Proof:
"On remand, the county must consider whether, without TP
Condition 17, the tentative plan for Phase A-1 satisfies the no net
loss/degradation standard and whether a change in the source of
mitigation water [if proposed] constitutes a substantial change to
the FMP approval . . . "1
The water issues are correspondingly narrow. The Burden of Proof, along with
Applicant's submissions during the open record and rebuttal period, have clearly
stated that Applicant does not propose any change in the source of mitigation
water, thus the only remaining water issue is whether the tentative plan for Phase
A-1 satisfies the no net loss/degradation standard. As discussed below, Applicant
has made this showing and the rebuttal comments submitted by Ms. Gould and
Central Oregon Land Watch ("COLW") do not show otherwise. In fact, to a
considerable extent, those submissions address issues beyond the scope of this
1 Burden of Proof p. 1.
Tonkon Torp LLP Advocates & Advisors l 888 SW Fifth Ave. l Suite 1600 l Portland OR 97204 l tonkon.com
LUBA 2019-136 AMENDED RECORD - Page 0271
September 24, 2019
Page 2
remand, as Mr. DeLashmutt has pointed out in previous submissions and in his
final argument.
Cold Water Mitigation in Deep Canyon Creek.
Applicant is already providing cold water mitigation in Deep Canyon Creek,
several years ahead of the time that was anticipated in the Fish and Wildlife
Mitigation Plan approved by the county as part of its approval of the Final Master
Plan. Big Falls Ranch ("BFR") holds the only water rights for the use of water from
Deep Canyon Creek (Certificates 76371 and 88027) and the ranch has stopped
diverting any water from the creek.
Transfer T-12651 approved a change from the previously-used surface water
point of diversion ("POD") on Deep Canyon Creek to groundwater Points of
Appropriation ("POA") at three wells. Paragraph 7 of T-12651 says, "The original
point of diversion of surface water shall not be retained as an additional or
supplemental point of diversion under the transferred portion of the right."
(Emphasis added.) These commitments are also included in the terms of the Water
Rights Purchase and Sale Agreement between my clients and Big Falls as follows:
"6. Removal of Deep Canyon Spring Impoundments and Dams.
a. Immediately upon the Effective Date [February 13, 2019], and for so
long as this Agreement is effective,
Seller shall:
i. Cease diverting surface waters directly from Deep Canyon
Creek.
ii. Cease impounding surface waters of Deep Canyon Creek and
will not otherwise impede the flows of such surface waters to the
Deschutes River_ Seller will open any existing release valves,
flashboards, or other devices that would allow surface waters to
flow through any earthen barriers or impoundment structures in
Deep Canyon Spring or Deep Canyon Creek on the Big Falls
Ranch
***
b. Buyer, at its sole discretion and at its sole cost, will cause the
removal of the upper dam on the Weigand and Reimenschneider
property (the 'W & R Property") adjacent to the Big Falls Ranch.
***
c. Buyer, at Buyer's cost, may remove any remaining earthen barrier
or impoundment structure on the Big Falls Ranch in Deep Canyon
Creek at any time after April 1, 2024 . . . ."
itLUBA 2019-136 AMENDED RECORD - Page 0272
September 24, 2019
Page 3
Thus, BFR is legally and contractually bound to cease pumping surface
water from the creek and has already met this commitment. My clients and Big
Falls have also already removed the weir (flashboards) from the concrete channel
previously used by Big Falls to impound and divert the spring water from the creek
into their irrigation pumps. As a result, the water can now flow through the
concrete channel to the Deschutes River.2 Applicant acknowledged that beavers
had subsequently blocked the channel, but the beaver dam has now been removed,
as shown by the photos and videos submitted during the rebuttal period.
The upper dam (not on BFR property) has already been breached as well,
though beavers have since plugged that opening as well. That beaver dam and the
remaining earthen footings will be removed in accordance with the FWMP prior to
construction of Phase A as required.
The important point is that without the diversion by BFR, cold spring water
is now allowed to flow down Deep Canyon Creek to the Deschutes River. This flow
is legally protected in the creek because no other surface water rights are
authorized for this source and OWRD's administrative rules and its water
availability analysis substantially preclude new surface water rights in the
Deschutes Basin. Furthermore, ODFW has a pending permit application
(Application IS-70695) for an instream right in a segment of the Deschutes River
that includes Deep Canyon Creek for 250 cfs of instream flow, thus further insuring
there could not be any new water rights available at this location.
Gould Submission/Letter from Robert Long.
Through her attorney Jeffrey Kleinman, Ms. Gould offered a September 17,
2019 letter from Consultant Robert Long. Mr. Long says that he reviewed "two
rights under Permit S-32049, one right under Permit S-37392, and one surface
water certificate 76372." He then goes on to say that his letter "focuses on the
likely permitting requirements necessary to use the Primary water rights under
Permit S-32049 as instream mitigation for new water rights or a water right
transfer downstream."
I am not sure why Mr. Long is discussing these three water rights at all.
First, both permits he references were proven up and replaced by certificates some
time ago. Certificate 44281 was initially issued upon proving up of Permit S-32049
and Certificate 44283 was issued upon proving up of Permit S-37392. In 2000,
OWRD approved transfer T-6854, which made changes to those two certificates
2 As previously noted, the remaining concrete footings will be removed soon
after April 1, 2024, which is the completion date for T-12651.
LUBA 2019-136 AMENDED RECORD - Page 0273
September 24, 2019
Page 4
(and others as well). As a result of the transfer, Certificates 44281 and 44283 were
both cancelled and replaced by new certificates reflecting both the portion of the
water rights not changed by the transfer and the portion of the water rights
changed and proven up under the transfer. After completion of that transfer, Big
Falls Ranch held Certificates 76371, 87558, 87655, 88027, 88028, and 88224. Only
Certificate 76371 and 88027 were for surface water in Deep Canyon Creek; the
others are groundwater rights. Deschutes Valley Farms held surface water
Certificate 76372 (to a creek in McKenzie Canyon, not Deep Canyon) and
groundwater certificates 75672, 76373, and 79237. The two permits referenced by
Mr. Long are no longer pertinent to any discussion of Big Falls Ranch water rights
and these rights are not inchoate, as he claims.
Second, as noted, Certificate 76372 pertains to water withdrawn from a
stream in McKenzie Canyon, not to Deep Canyon Creek, which is the focus of this
proceeding.
Third, crucially, Mr. Long's discussion of requirements that might apply to
changing the terms of a permit is not pertinent to either Applicant's water right
purchase agreement with Big Falls Ranch or to Transfer T-12651 that approved
changing the surface water point of diversion for certain water rights from surface
water PODs to groundwater points of appropriation located on Big Falls Ranch.
The agreement with Big Falls Ranch covers portions of the water rights
represented by surface water Certificates 76371 and 88027. Transfer T-12651
covers Certificates 76371, 87655, and 88027, the first and third of which pertain to
Deep Canyon Creek. (Note that the effect of Transfer T-12651 will be to cancel
those three certificates and replace them with new certificates once the transfer has
been completed.) See attached copies of transfer orders.
Finally, even if Mr. Long's letter pertained to the water rights at issue here, all that
his letter does is describe that further OWRD review proceedings would be required
to make changes to any water rights. Applicant has never argued otherwise.
However, to the extent that Mr. Long argues that Permit S-32049 is inchoate and
requires a transfer back to its original point of diversion before it could be subject to
any further transfer by the Applicant, he is simply wrong. First, as noted, that
permit is not inchoate and it was proven up long ago. Additionally, there is no
requirement under T-12651 to transfer the groundwater POA back to a surface
water POD. Mr. Long cites to condition #6 of the Transfer Order approving T-
12651 (although he is really citing condition #7), which says in part:
"...if within 5 years after approval of the transfer, the Department
receives a transfer application to return to the last authorized surface
water point of diversion..."
LUBA 2019-136 AMENDED RECORD - Page 0274
September 24, 2019
Page 5
Mr. Long seems to take this to mean that a transfer application to change back the
POD is clearly required. But that is not what this provision says. It says if BFR (or
Applicant after purchasing the BFR right) wanted to transfer the right back to the
original point of diversion it would require a transfer application. Furthermore,
Mr. Long left off the rest of the sentence, which says "the application shall be
approved" thus indicating that a change back would be automatic. Despite this
clear language, Mr. Long wrote "It is unclear how, other than by standard transfer
rules and statutes such a change of the point of diversions or point of appropriation
could occur." An automatic approval is certainly not a "standard" transfer. Finally,
as Applicant has already explained (including with a document from OWRD), the
change of POD to a POA under ORS 540.531 does not change the right to a
groundwater right; it remains a surface water right.
In summary, Mr. Long's letter is irrelevant to the specific issues involved in
this remand proceeding.
Gould Submission/Memorandum from Jeffrey Kleinman.
Mr. Kleinman, Ms. Gould's attorney, submitted a memorandum that
purports to respond to Applicant's September 10, 2019 rebuttal submissions.
Stripped of the bombastic arm-waving,3 Mr. Kleinman's memorandum is essentially
reduced to an argument that he does not trust or believe the Applicant's evidence.
As I stated in my previous letters in this proceeding, my clients have a written
agreement with the Big Falls Ranch providing for the purchase of water rights well
in excess of the acreage needed for the Tentative Plan supply and mitigation
requirements. There is nothing nefarious about the parties desiring to keep private
the specific terms of the agreement—including price and other sensitive matters—
and Mr. Kleinman's suggestion that the agreement contains "damning contents" is
completely unfounded and inappropriate. If he is suggesting that either Mr.
Barber, as a party to that agreement, or I, as Applicant's counsel involved in
drafting the agreement, are making statements about the agreement that are not
true, he is essentially slandering us without a shred of evidence. The fact is that
Applicant has secured the necessary water because it has a binding agreement to
purchase water rights.
3 "Song and dance, shell game (complete with dictionary definition), lip service,
end of the line, sagebrush subdivision, double-dark secret agreement, damning
contents, hearsay on hearsay, since when, this is the time and this is the place,
smoke and mirrors, Q.E.D., pig in a poke, talked to death, now or never, the goal
posts have just left the stadium"—all of these flip statements in Mr. Kleinman's
memorandum are simply arm-waving and do not constitute appropriate argument.
LUBA 2019-136 AMENDED RECORD - Page 0275
September 24, 2019
Page 6
Furthermore, it is not a "shell game" for the Applicant to point out that
OWRD enforces the mitigation requirements for use of groundwater in the
Deschutes Basin. It is an uncontestable fact that OWRD will not allow Applicant to
pump a single gallon of water for the project unless and until Applicant has
demonstrated to the Department's satisfaction that Applicant has the required
amount of wet water mitigation in hand to offset the water use. OAR 690-505-
0620-0625.
Applicant has satisfied its burden of proof for the water quality mitigation as
well. Removal of the upper dam in Deep Canyon Creek was required prior to
construction, not prior to approval of the Tentative Plan here. The removal of the
lower dam is not required for many years into the future, after full development of
Phase A of the resort. Yet the removal of the weir from the lower dam has already
occurred, thus providing this portion of the mitigation ahead of when it is required.
As explained by Mr. DeLashmutt at the hearing, it is the weir that impounded the
creek water to allow its diversion for irrigation use. The evidence shows that the
weir has been removed, which is what applicant claimed. The fact that the concrete
base for the weir is still in place does not mean the "dam" is still in place. See
Dorsey photos #2 & 5 (9/17) and Applicant's Ex. 3a, 3c-d (9/10) and Applicant's Ex.
B1 and B2 from Mr. DeLashmutt's final argument dated September 24.
Furthermore, Applicant has extensively demonstrated that the beaver dam which
blocked the channel subsequent to removal of the weir has also been removed. And
most important of all, no water is being diverted from Deep Canyon Creek.
COLW Comments.
The above responses to Ms. Gould's submissions answer COLW's comments
as well. Applicant has submitted sufficient proof of its acquisition of water rights
in excess of what is required for its first phase of development. Deep Canyon Creek
now flows to the Deschutes River, without impoundment or diversion by Big Falls
Ranch. No matter how many times opponents say it isn't so, these facts have been
established and Applicant has met its burden of proof.
Sincerely,
J et E. Neuman
Senior Counsel
cc: Liz Fancher (by email: liz@lizfancher.com)
Kameron DeLashmutt (by email: kameron@bendcable.corn)
035992/00001/10386164v1
LUBA 2019-136 AMENDED RECORD - Page 0276
1
Liz Fancher
From:Kameron DeLashmutt <kameron@bendcable.com>
Sent:Friday, September 3, 2021 11:15 AM
To:David Newton; Janet Neuman
Cc:Liz Fancher; Katzaroff, Kenneth
Subject:FW: Discussion regarding Reverting back to Deep Canyon Creek
From: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Date: Friday, September 3, 2021 at 11:12 AM
To: Kam DeLashmutt <kameron@bendcable.com>, HENDERSON Sarah A * WRD
<Sarah.A.Henderson@oregon.gov>, JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Hi Kameron,
Given the current work situation with COVID, I would estimate that it would take at least two weeks to process the
reversion request.
Kelly
Kelly Starnes, Transfer Program Analyst
Oregon Water Resources Department
725 Summer St NE Suite A
Salem OR 97301-1271
Cellphone: 503-979-3511 Fax: 503-986-0903
E-mail: patrick.k.starnes@oregon.gov
Please Note: Under Oregon Law, messages to and from
this e-mail address may be available to the public.
From: Kameron DeLashmutt <kameron@bendcable.com>
Sent: Thursday, September 2, 2021 8:04:30 PM
To: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>; HENDERSON Sarah A * WRD
<Sarah.A.Henderson@oregon.gov>; JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Patrick,
Thank you for the speedy response. I think Sarah mentioned that once you received such email as noted below that it
automatic and quickly reverts. Please confirm that is the case. And if not please note the time involved.
I appreciate your assistance in clarifying.
Sincerely,
Kameron
Kameron DeLashmutt
541-350-8479
2
kameron@bendcable.com
kameron1959@gmail.com
From: STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Date: Thursday, September 2, 2021 at 10:15 AM
To: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>, Kam DeLashmutt
<kameron@bendcable.com>, JARAMILLO Lisa J * WRD <Lisa.J.Jaramillo@oregon.gov>
Subject: Re: Discussion regarding Reverting back to Deep Canyon Creek
Good Morning Sarah and Kam,
The rules that Sarah quoted are correct. However, the transfer application referred to in the rules has to be filed on
rights subject to transfer. According to WRIS, I do not believe the Department has issued certificates confirming T-
12651, thus there are no rights subject to transfer. IF confirming certificates have not been issued, then the transfer
applicant can revert the transfer back to the authorized point of diversion. Such a reversion request can be made by e-
mail.
Kelly
Kelly Starnes, Transfer Program Analyst
Oregon Water Resources Department
725 Summer St NE Suite A
Salem OR 97301-1271
Cellphone: 503-979-3511 Fax: 503-986-0903
E-mail: patrick.k.starnes@oregon.gov
Please Note: Under Oregon Law, messages to and from
this e-mail address may be available to the public.
From: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Sent: Thursday, September 2, 2021 8:34:26 AM
To: Kameron DeLashmutt <kameron@bendcable.com>; STARNES Patrick K * WRD <Patrick.K.Starnes@oregon.gov>
Cc: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Subject: RE: Discussion regarding Reverting back to Deep Canyon Creek
Hi Kameron, I always enjoy speaking with you সহ
And I want to apologize up front… it didn’t register to me last night when we were talking that this was not a regular pod
transfer change, T-12651 (Big Falls Ranch) was a SW POD to GW POA change, and I might have given you some incorrect
information.
OAR 690-380-2130 has its own procedure for returning back to the original SW POD, it would not be like the regular pod
transfer change “reverting back” with just an email to Kelly Starnes, like I told you last night. I’m sorry!!!
3
I am asking Kelly to chime in here and help you and I out, I believe in the SW to GW changes that an application would
have to be submitted … “(8) The Department shall approve a transfer application to return to the last authorized surface
water point of diversion if the required transfer application is received within five years after the Department approves a
transfer under this rule. It shall be presumed, for transfers under this subsection, that there is no injury, including injury to
rights obtained or transferred after the approval of the first transfer.”
T-12651 was approved on 11/20/2018 so we are still within that five year period.
Also, the final order states (7) The original point of diversion of surface water shall not be retained as an additional or
supplemental point of diversion under the transferred portion of the right. However, if within five years after approval
of the transfer, the Department receives a transfer application to return to the last authorized surface water point of
diversion, the application shall be approved.
Kelly – please help us out, I want to make sure that Kameron is getting the correct information, I told him that a pod
revert would be super easy, just send an email to Kelly… as you can see above I forgot about the sw to gw rules. If you
could explain in detail what would need to happen to revert to the original pod that would be great.
Again, sorry Kam!!
And thank you Kelly!
Sarah
Sarah A. Henderson
Flow Restoration Program Coordinator
Transfer and Conservation Section
725 Summer St. NE, Suite A |Salem, OR 97301
Work Cell 503-979-9872
Email: sarah.a.henderson@oregon.gov
From: Kameron DeLashmutt <kameron@bendcable.com>
Sent: Wednesday, September 1, 2021 7:26 PM
To: HENDERSON Sarah A * WRD <Sarah.A.Henderson@oregon.gov>
Subject: Discussion regarding Reverting back to Deep Canyon Creek
Sarah,
It was nice speaking to you this afternoon. Thank you for further clarifying earlier conversations we had about reverting
the Deep Canyon Creek rights to a Point of Diversion in Deep Canyon Creek from the existing POA in the ground.
As we have discussed previously, and you confirmed today the process, to revert the current Point of Appropriation in
the Big Falls wells to the previous Point of Diversion in Deep Canyon Creek is very simple. As I understand it the process
to do so is to send an email to Kelly Karnes (sp?) informing that we would like to change the POA back to a POD and that
will be acknowledged and approved immediately after which the POD would be back in Deep Canyon Creek. This would
be limited to the interference period, that would last 5 years from the time of issue of the final order approving the
change in the POD.
4
Please confirm that I have accurately portrayed our discussions and the process as you understand it to revert the POA
back to the POD in Deep Canyon Creek.
Sincerely,
Kameron DeLashmutt
541-350-8479
kameron@bendcable.com
kameron1959@gmail.com
247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 76 of 81
III. CONCLUSION:
Based on the foregoing findings and the record herein, I find that the applications meet all
applicable criteria, subject to the conditions of approval set forth below.
Note: Other permits may be required. The applicant is responsible for obtaining any
necessary permits from the Deschutes County Building Division, the Deschutes County
Environmental Soils Division and the Deschutes County Road Department, as well as
any required state and federal permits.
IV. CONDITIONS OF APPROVAL:
1. Tentative Plan & Final Plat: This approval is based on the information submitted by the
applicant. The subdivision final plat shall be in substantial conformity with the provisions of
the tentative plan for the subdivision, as approved. Any substantial change will require a new
land use application.
2. Site Plan Review: This approval is based upon the application, site plan, specifications, and
supporting documentation submitted by the applicant. Any substantial change in this
approved use will require review through a new land use application.
3. Clear Vision Area: As an ongoing condition of approval, clear vision areas shall be
maintained at the intersections of access roads and Cline Falls Road.
4. Parking: As an ongoing condition of approval, required parking space shall be available for
the parking of operable passenger automobiles of residents, customers, patrons and
employees only and shall not be used for the storage of vehicles or materials or for the
parking of trucks used in conducting the business or used in conducting the business or use.
5. Parking Lighting: As an ongoing condition of approval, lighting illuminating off-street parking areas shall be arranged so that it will not project light rays directly on any individually owned (non-resort owned) residential single-family dwelling. 6. Service Drive Sign: The applicant must post a sign on the service drive stating that it is for service vehicles only. 7. Bicycle Parking: Prior to initiation of use for the reservoir and septic drainfield utility sites, the applicant shall provide revised plans or documentation demonstrating compliance with DCC 18.116.031.
8. Landscape & Topography Preservation: During construction and as an ongoing condition of approval, the landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected.
9. Exterior Lighting: As an ongoing condition of approval, all exterior lighting shall be shielded
so that direct light does not project off site.
10. FMP Condition 4: Prior to Final Plat approval or issuance of a building permit, whichever
comes first, the secondary emergency resort access road or roads shall be improved.
Subject to US Department of the Interior-Bureau of Land Management (BLM) approval, any
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 77 of 81
secondary emergency ingress/egress across the BLM-owned land or roadways shall be
improved to a minimum width of 20 feet with all-weather resort access surface capable of
supporting a 60,000-lb. fire vehicle. Until such time, if any, that the road is approved for full
access, a sign shall be posted at each end stating that it is for emergency access only.
11. FMP Condition 6: Prior to final plat approval, all easements of record and/or rights-of-way
shall be shown on the Final Plat. These plans shall be approved by the County Road
Department prior to construction.
12. FMP Condition 7: Prior to final plat approval, all new proposed road names must be
reviewed and approved by the County Property Address Coordinator.
13. FMP Condition 14(D): Prior to final plat approval, all open space areas shall be clearly
delineated and labeled on the Final Plat.
14. FMP Condition 17: All development within the proposed resort shall meet all fire protection
requirements of the Redmond Fire Department (Redmond Fire & Rescue). Fire protection
requirements shall include all minimum emergency roadway improvements.
15. FMP Condition 21. The final plat shall provide or reference a recorded deed restriction and
equitable servitude in favor of and enforceable by the County, requiring that the sale of
individual (single-family) lots may not close until a minimum of 50 overnight lodging units
are constructed and ready for rent as provided in FMP condition no. 21. The County shall
execute and record a release or satisfaction of the deed restriction and equitable servitude
within 30 days of a request from the applicant demonstrating that this condition has been
satisfied. The exact wording of the plat reference and recorded document shall be reviewed
and approved by County Counsel.
16. FMP Condition 29: As an ongoing condition, comply with the ODOT Contribution
Agreement to “assure the applicant’s mitigation responsibility to ODOT is met now and
through completion” of the resort.
17. Site design approval. Prior to issuance of building permits for the single-single family
dwellings, obtain site design approval for at least 50 OLU’s, which approval shall demonstrate
that: a) the OLU’s qualify as such and b) the Big Springs Ranch and COID water referenced in
the Mitigation Plan and FMP decision have been secured, demonstrate that the proposed
alternate source is acceptable to ODFW and provides the same quantity and quality
mitigation so as to not constitute a substantial modification or justify a modification to the
FMP.
18. Construction. Prior to closing on the sale, lease or rental of any residential lots or dwellings:
a. Obtain land use approvals for development of the remaining elements of Phase ‘A’
including the remaining OLU’s, restaurant, meeting rooms and recreational
facilities.
b. Construct at least 50 OLU’S
c. Construct or provide financial assurance for construction of the remaining 100 OLU’s
d. Construct or provide financial assurance for construction of the restaurant, meeting
rooms and recreational facilities for Phase ‘A’ and as noted in FMP Condition 33.
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 78 of 81
19. FMP Condition 34: As an ongoing condition of approval, where construction disturbs
native vegetation in open space areas that are to be retained in substantially natural
condition, the applicant shall restore the native vegetation. This requirement shall not apply
to land that is improved for recreational uses, such as golf courses, hiking or nature trails or
equestrian or bicycle paths.
20. FMP Condition 38. Prior to issuance of building permits for any Phase ‘A’ development:
obtain BLM/ODFW concurrence that no mitigation is required; provide such mitigation or
establish the escrow and deposit funds equal to the area of such mitigation.
21. FMP Condition 39. Prior to issuance of building permits for any portion of Phase ‘A’,
submit to Deschutes County an executed agreement with Three Sisters Irrigation District
providing for restoration of 106-acre feet of water to Whychus Creek no later than the date
groundwater pumping to serve the development commences.
22. Subdivision Name: Prior to final plat approval, the subdivision plat name shall be approved
by the County Surveyor.
23. Private Road Approval: Prior to final plat approval, streets and roads held for private use
and indicated on the tentative plan shall be approved by the County Road Department.
24. Conformity to Tentative Plan: Prior to final plat approval, the subdivision final plat shall be
in substantial conformity with the provisions of the tentative plan for the subdivision, as
approved.
25. Explanations: Prior to final plat approval, explanations for all common improvements
required as conditions of approval of the tentative plan of the subdivision shall be recorded
and referenced on the subdivision plat.
26. Domestic Water Supply Certification: Prior to final plat approval, the applicant shall provide
to the County a certification by the owner of the privately-owned domestic water supply
system, subject to regulation by the Public Utility Commission of Oregon, that water will be
available to the lot line of each and every lot depicted in the proposed subdivision plat.
27. Sewage Disposal Statement: Prior to final plat approval, the applicant shall provide to the
County a certification by the owner of the privately-owned sewage disposal system, subject
to regulation by the Public Utility Commission of Oregon, that a sewage disposal system will
be available to the lot line of each and every lot depicted in the proposed subdivision plat.
28. Irrigation District Certification: Prior to final plat approval, and subject to any standards
and procedures adopted pursuant to ORS 92.044, no plat of subdivision or partition located
within the boundaries of an irrigation district, drainage district, water control district, water
improvement district or district improvement company shall be approved by the county
unless the county has received and accepted a certification from the district or company that
the subdivision or partition is either entirely excluded from the district or company or is
included within the district or company for purposes of receiving services and subjecting the
subdivision or partition to the fees and other charges of the district or company.
29. Northbound Left Turn Lane: Prior to final plat approval, the applicant shall construct a left
turn lane for northbound Cline Falls Rd at the proposed southeast site access in
conformance with Recommendation No. 3 in the September 28, 2005 TIA.
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 79 of 81
30. Road Improvements: Prior to final plat approval, all required road improvements shall be
constructed.
31. Existing Easements and Rights-of-Way: Prior to final plat approval, the applicant shall note
all easements of record and existing rights-of-way on the final plat, in conformance with DCC
17.24.060 and FMP condition 6.
32. Location of Roads: At the time of final plat submittal, the surveyor or engineer submitting
the plat shall submit information showing the location of the existing roads in relation to the
roads rights-of-way, on behalf of the applicant to the County Road Department. This
information can be submitted on a worksheet and does not necessarily have to be on the
final plat. All existing road facilities and new road improvements are to be located within
legally established or dedicated rights-of-way. In no case shall a road improvement be
located outside of a dedicated road right-of-way. If research reveals that inadequate right-
of-way exists or that the existing roadway is outside of the legally established or dedicated
right-of-way, additional right-of-way will be dedicated as directed by the Deschutes County
Road Department to meet current County Standards.
33. Fire District Approval: Prior to final plat approval, the applicant shall submit confirmation
from Redmond Fire and Rescue verifying the proposed configuration of the subdivision will
conform to applicable Fire Code.
34. Cline Falls Road Right-of-Way Dedication. Prior to final plat approval, the applicant shall
dedicate additional right-of-way along the boundaries of the subject property where it abuts
the public right-of-way of Cline Falls Road to provide the required right-of-way width of 40 feet
from the centerline (80-feet total width) pursuant to DCC 17.36.020(B), 17.36.080, and 17.48A.
35. Street Names: Prior to final plat approval, no street name shall be used which will duplicate
or be confused with the name of an existing street in a nearby city or in the County. Street
names and numbers shall conform to the established pattern in the County and shall require
approval from the County Property Address Coordinator.
36. Utility Easements: Prior to final plat approval, all required utility easements shall be shown
on the final plat. Easements shall be provided along property lines when necessary for the
placement of overhead or underground utilities, and to provide the subdivision or partition
with electric power, communication facilities, street lighting, sewer lines, water lines, gas
lines or drainage. Such easements shall be labeled "Public Utility Easement" on the tentative
and final plat; they shall be at least 12 feet in width and centered on lot lines where possible,
except utility pole guyline easements along the rear of lots or parcels adjacent to
unsubdivided land may be reduced to 10 feet in width.
37. Grading: Prior to the issuance of building permits on individual lots, the applicant shall
demonstrate cut slope ratios shall not exceed one foot vertically to one- and one-half feet
horizontally, fill slope ratios shall not exceed one foot vertically to two feet horizontally, and
that grading plans comply with DCC 17.36.230.
38. Water and Sewer Lines: Prior to curbing and paving new streets, water mains and water
and sewer lines shall be constructed and installed to County standards and specifications.
39. Public Water System: Prior to final plat approval, plans for the water system shall be
submitted and approved by the appropriate state or federal agency. The water system shall
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 80 of 81
be constructed and operational, with lines extended to the lot line of each and every lot
depicted in the proposed subdivision.
40. Road Improvement Plans Prior to final plat approval, the applicant shall submit a complete
set of certified mylar improvement plans to the Road Department Director for approval.
Public and private road design and construction shall be in accordance with all applicable
sections of DCC 17.48. Applicant shall submit public and private road improvement plans to
Road Department for approval prior to commencement of construction pursuant to DCC
17.40.020 and 17.48.060 and in conformance with Condition No. 5 of the Hearings Officer
Decision for the FMP. Improvements shall be constructed under the inspection of a register
professional engineer consistent with ORS 92.097 and DCC 17.40.040.
41. Road Names: Prior to final plat approval, all roads shall be named in conformance with the
provision of the Deschutes County uniform road naming system set forth in DCC Title 16.
42. Mountain Bike Trails: As an ongoing condition of approval, mountain bicycle trails used for
transportation shall have a two-foot minimum tread width and a six-foot minimum clearing
width centered over the trail, and a minimum overhead clearance of seven feet. Trails used
solely for recreational use may be narrower with less clearing of vegetation.
43. Road Maintenance Covenant: Prior to final plat approval, all interior subdivision roads shall
be private roads. Maintenance of all interior private roads shall be assigned to owners of the
subdivided land or a home owners association by covenant pursuant to DCC 17.16.040 and
17.48.160(A). Applicant shall submit covenant to Road Department for review and shall
record covenant with the County Clerk upon Road Department approval. A copy of the
recorded covenant shall be submitted to the Community Development Department prior to
final plat approval.
44. Private Roads: Prior to final plat approval, all private roads shall comply with the minimum
private road standards of DCC 17.48.180.
45. Drainage: Prior to final plat approval, the applicant shall provide certification by a licensed
professional engineer that drainage facilities have been designed and constructed to receive
and/or transport at least a design storm as defined in the current Central Oregon
Stormwater Manual created by Central Oregon Intergovernmental Council and all surface
drainage water coming to and/or passing through the development or roadway. The
engineer’s certification shall confirm that all drainage features have been designed and
constructed to comply with DCC 17.48.190.
46. Driveway Approach Permits: Prior to final plat approval, the applicant shall obtain driveway
access permits for any new or existing unpermitted road accesses to Cline Falls Road
pursuant to DCC 12.28.050 and 17.48.210(A).
47. Service Drives: Prior to opening for use, post a sign on the service drive stating that it is for
service vehicles only.
48. Emergency Access: Post signs “Emergency Access Only” signs at each end of the access road
unless not permitted by the USA.
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 81 of 81
49. Parks: Pursuant to DCC 17.44, no later than the time of recording the final plat for the
subdivision pay a fee of $350 per proposed dwelling unit or obtain approval to dedicate
“suitable and adaptable” land for a private park open to the public.
V. DURATION OF APPROVAL:
This Tentative Plan and Site Plan Review approval shall be void after two years from the date
this decision becomes final, unless the final plat has been submitted to the Planning Division
for final approval within that time period, an extension is sought under DCC 22.36.010, or
the preliminary plat approval has been initiated as defined in DCC 22.36.020.
This decision becomes final twelve (12) days after the date of mailing, unless appealed by a
party of interest.
Done and dated this 29th day of October 2018
Dan R. Olsen
Hearings Officer
LUBA 2018-140 Record - Page 0121LUBA 2019-136 AMENDED RECORD - Page 1194
7801
7900
7800
1
SHEET
DATE: 9/13/21SCALE: 1" = 600'
CENTRAL LAND AND CATTLE COMPANY LLC
EXISTING TAX LOTS
DRAWN BY: MPD
LOCATED IN THE NORTH HALF OF THE SOUTHEAST QUARTER (N1/2 SE1/4) OF
SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.,
DESCHUTES COUNTY, OREGON
NORTH
EXHIBIT B-1
7801
7800
2
SHEET
DATE: 9/13/21SCALE: 1" = 600'
CENTRAL LAND AND CATTLE COMPANY LLC
LOT LINE ADJUSTMENT 1
DRAWN BY: MPD
LOCATED IN THE NORTH HALF OF THE SOUTHEAST QUARTER (N1/2 SE1/4) OF
SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.,
DESCHUTES COUNTY, OREGON
NORTH
EXHIBIT B-1
AREA BEFORE ADJUSTMENT = 436.5± Ac
AREA AFTER ADJUSTMENT = 474.76± Ac
ADJUSTED TAX LOT 7900
AREA BEFORE ADJUSTMENT = 38.76± AcAREA AFTER ADJUSTMENT = 0.50 Ac
7800
3
SHEET
DATE: 9/13/21SCALE: 1" = 600'
CENTRAL LAND AND CATTLE COMPANY LLC
LOT LINE ADJUSTMENT 2
DRAWN BY: MPD
LOCATED IN THE NORTH HALF OF THE SOUTHEAST QUARTER (N1/2 SE1/4) OF
SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.,
DESCHUTES COUNTY, OREGON
NORTH
EXHIBIT B-1
AREA BEFORE ADJUSTMENT = 474.76± Ac
AREA AFTER ADJUSTMENT = 504.03± Ac
ADJUSTED TAX LOT 7801AREA BEFORE ADJUSTMENT = 40.0± Ac
AREA AFTER ADJUSTMENT = 10.73 Ac
TAX LOT 7900
September 14, 2021 VIA EMAIL: william.groves@deschutes.org Hearings Officer Gregory Frank c/o Will Groves, Senior Planner Deschutes County Community Development Department 117 NW Lafayette Ave. Bend, OR 97703 Re: File Nos. 247-18-000383-TP, 247-18000454-SP, and 247-18-000592-MA
Dear Hearings Officer Frank:
I am water rights counsel for Mr. Kameron DeLashmutt, Pinnacle Utilities, LLC, and Central Land & Cattle Company, LLC, the Applicant in the above-referenced file ("Applicant"). I am submitting these comments as part of final argument on my clients' behalf. My argument is limited to specific water issues, while comprehensive final argument is being submitted by Ms. Fancher and Mr. DeLashmutt.
Introduction
The narrow issue on remand is whether “without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water [if proposed] constitutes a substantial change to the FMP approval . . .” See Ms. Fancher’s Final Argument (“Fancher Final Argument”), p. 1 (quoting LUBA) .
As Ms. Fancher states very succinctly:
• The answer to the first part of that question is that the Tentative Plan still satisfies the no net loss standard regardless of Condition 17 because “compliance with [the] FWMP assures compliance with [the no net loss/degradation test.”
• The answer to the second part of the question is that there is no substantial change to the FMP approval because “there has been no change in the source of the mitigation water. Id. at 2, 4.
Argument
Leaving Water in Deep Canyon Creek by Purchasing Big Falls Ranch Deep Canyon Creek Water Rights Complies with the No Net Loss Standard.
As stated above, compliance with the FWMP constitutes compliance with the no net loss standard. The FWMP provides that mitigation is required for purposes of no net loss prior to pumping of water for each phase of development. Upon full completion of development, the Applicant will have mitigated the “slight potential for increased stream temperature” by removing two impoundments from Deep Canyon Creek and by ceasing diversions from the creek. However, this is not required now, either under the FWMP nor under the question remanded by LUBA. The issue of removing impoundments in Deep Canyon Creek is not relevant to the current question on remand, because this issue was determined by LUBA against Gould. See Fancher Final Argument, p. 16.
Yet many years before it is required by the FWMP, much of the creek flow restoration that was to be obtained by purchasing BFR Deep Canyon Creek water rights has already been provided. All pumping directly from the creek was discontinued in 2018, when OWRD approved Big Falls Ranch’s Transfer T-12651 to move its point of diversion (“POD”) for its Deep Canyon Creek surface water rights from the creek to its wells. At the same time, BFR removed its weir that had previously impounded the water in the creek so it could be pumped from the POD, now allowing water to flow downstream to the Deschutes.1 Applicant has previously submitted video and photographic evidence of creek flow after these changes, including some photographs submitted by the opponents themselves. See Fancher Final Argument, p. 13.
Mr. Lambie’s Memorandum submitted for Ms. Gould does not directly counter this evidence. He uses one aerial photo from July 28, 2018, which he says shows no water flowing from the creek into the river, just a “vernal corridor.” September 7, 2021 Technical Memorandum from John M. Lambie to Karl Anuta (“Lambie”), p. 6 and Figure 2. First, a vernal corridor does in fact suggest the presence of water, and we do not agree with his interpretation of this photo. But even if Mr. Lambie’s interpretation were correct, it is irrelevant. OWRD’s final order approving T-12651 was not issued until November of 2018, so BFR was still authorized to dam the creek and pump 100% of their Deep Canyon water rights from the creek during the summer of 2018.
1 The BFR weir has been removed. See PDF 2019/2018 Rec 61, 64. A second impoundment further upstream on other landowners’ property will be fully removed on the timetable required by the FWMP, as will the concrete abutments that held the weir at the BFR POD.
The rest of Mr. Lambie’s argument is essentially theoretical—the creek cannot be flowing because the elevation of the spring that feeds it is higher than the elevation of the static water levels in three of BFR’s wells, and the drawdown effect of the wells is further enhanced by the reach of the wells’ cones of influence. He concludes that all of the BFR wells are directly (and in real time) diverting water from Deep Canyon Creek, drying up Deep Canyon Spring and leaving no water in the creek, as “proven” by the aerial photo. Lambie p. 8. Evidence in the 2019 record filed by Ms. Fancher today shows that the creek was, in fact, flowing in 2019.
Although the groundwater and surface water in the Deschutes Basin are hydraulically connected, which is the basis of the special transfer provision in ORS 530.431(3), they are not instantaneously connected in space and time. Pulling water out of the ground at wells located from roughly half a mile to nearly two miles from Deep Canyon Springs is patently not the same as pumping the same amount of water directly out of a single surface POD on the creek right now.2 In fact, based on Mr. Lambie’s charts of SWL elevations, the spring should have dried up some time ago if his theories were correct, but it did not. BFR continued to impound and divert water from the creek until recently, and even Applicant’s opponents claim that water still dams up in the creek. Therefore, Mr. Lambie’s Memorandum does not “prove” that “there is no source of water for mitigation at all” as he claims.3 Lambie, p. 10. And the argument about the adequacy of Deep
2 Mr. Lambie implies that Well No. 1 is located right at Deep Canyon Springs. Lambie, p. 8. This is incorrect. That well is approximately 8600 feet from the springs. See Map attached to Final Argument of Kameron DeLashmutt and Central Land and Cattle Company, LLC (“CLCC Final Argument”). The four wells Mr. Lambie discusses are all different distances from the creek, and different pumping regimes at each will have different impacts on spring or creek flows in terms of amount and timing.
3 In fact, Mr. Lambie seems to suggest that the situation is so dire on BFR that its wells are even pulling water from the Deschutes River at times (Lambie, p. 11), and that Deep Canyon Creek will not flow until BFR stops all pumping of all of its surface and groundwater rights from all of its wells for a considerable time, until the SWL exceed the elevation of Deep Canyon Springs. (Lambie, p. 9-11). (Although it is not a significant point, Mr. Lambie also includes an incorrect assumption in this analysis. On p. 11, he assumes that BFR can use all of its supplemental water rights on top of its primary water rights, but supplemental rights are only to be used when primary rights are not available—they are not additive. See ORS 540.505(3). This makes a difference of only about 50 AF of water. He also seems to misunderstand the way supplemental water rights work at the top of p. 10, where he assumes that if primary rights are transferred, the transferor can just replace the water with supplemental rights,
Canyon Creek as mitigation was determined long ago and is not the subject of this remand.
Additionally, Pinnacle recently purchased 90 acres of the Deep Canyon surface water rights from BFR (equivalent to 360 acre feet of water, which translates to 162 acre feet of mitigation water), meaning that BFR can no longer pump this amount of water from either its wells or from the creek. The Final Order on T-12651 prohibits any pumping from the creek, and BFR no longer owns the portion of rights conveyed to Pinnacle, so it cannot pump that amount from the ground. The Applicant has thus demonstrated early compliance with the FWMP as required to meet the no-net-loss/degradation standard. Furthermore, the BFR Agreement allows Pinnacle to purchase an additional 153 acre feet of mitigation water, and as additional amounts are purchased, pumping will be further reduced. This contract currently goes to December 1, 2021, but explicitly provides for additional extensions for a full year beyond that. See Exhibit I, Fancher Final Argument.
Mr. Anuta’s claim that the Deep Canyon Creek water is still being used by BFR is thus incorrect as to the portion purchased by Applicant. This water is not being “double counted” for irrigation and mitigation because it can no longer be used for irrigation. Anuta, p. 1.4
which is not the case. Supplemental water rights must be transferred along with primary rights, or else be cancelled. See ORS 540.510(1).) 4 Mr. Anuta’s convoluted claim that the Deep Canyon Creek water cannot be claimed as mitigation until it has been transferred back “from ground water to surface water use” and then go through another transfer process to become an instream water right is wrong. The water right is still a surface water right, as provided in ORS 540.531(3), and as explained in detail by Ms. Fancher and confirmed by Mr. Lambie. The POD can be changed back to the surface location with an email request. See email from Patrick K. “Kelly” Starnes, OWRD, to Mr. DeLashmutt, Exhibit L, Fancher Final Argument. The FWMP provides that the BFR rights will be transferred to an instream right upon completion of the full purchase of water rights from BFR. See FWMP at 7. Opponents’ attempts to accelerate the mitigation obligations in advance of the OWRD mitigation requirements and the FWMP should be ignored. As explained in my letter of September 24, 2019, even before being officially transferred to an instream right, the water right is “protected” instream because no one else can divert the water from Deep Canyon Creek, as BFR holds the only water rights in the creek. See Exhibit K, Fancher Final Argument. This argument is distraction and noise, and has nothing to do with the specific issue on remand.
The Source of Mitigation Water Has Not Changed
Earlier, Ms. Gould argued through her attorneys that the “source” of the mitigation water has changed because of Transfer T-12651, and therefore, Condition 17 is required in order to assure that if this is the case, Applicant must amend the project’s Final Master Plan. Now, Ms. Gould’s expert Mr. Lambie has contradicted that position. He acknowledges that despite Transfer T-12651 changing the point of diversion for the Deep Canyon Creek water rights from a surface POD to a groundwater POD/POA, the “source” is the same—the hydraulically connected flows of groundwater and surface water. Pursuant to ORS 540.531(3), the Deep Canyon Creek water right retains its character as a surface water right. The source of mitigation water has not changed. As discussed at length by Ms. Fancher in her Final Argument, water quantity and quality mitigation requirements in the FWMP and in OWRD’s Deschutes Basin Mitigation Program provide the mechanisms needed to assure the provision of timely and effective mitigation in compliance with the approved project Final Master Plan. Conclusion
Condition 17 is not required to assure compliance with the no net loss/degradation standard. Nor is it required to protect the source of mitigation water, as there has been no pertinent change proposed.
Thank you.
Sincerely, s/ Janet E. Neuman
Janet E. Neuman Senior Counsel
JEN/jw 041295\00001\12740525v1
FINAL ARGUMENT
of
Central Land and Cattle Company, LLC
& Kameron DeLashmutt
Remand of the Tentative Plan Phase A-1.
Case: Deschutes County Case #247-18-000386-TP Thornburgh resort Phase A-1 Tentative Plan.
Hearing Officer Gregory Frank
c/o Will Groves, Senior Planner
Deschutes County Planning Department
Introduction:
The FWMP makes clear the OWRD mitigation rules ensure that any thermal impacts of the resorts
groundwater use on area streams and rivers will be were very minor, below levels that could be
measured1. But the ODFW was however concerned that with other ongoing groundwater withdrawals,
not related to the resort, the cumulative effects of all the withdrawals over time might have an impact.
The FWMP addressed this minor issue. See the FWMP, Newton 9/7/21 Memo. In review of
Thornburgh’s mitigation plans, ODFW commented that it was the most complete mitigation plan for the
siting of a resort, and that the Thornburgh mitigation plan would provide a net benefit to the fish
habitat. See ODFW letter June 2008, 2019/2018 Record PDF 110-112.
Even so, Thornburgh’s mitigation plans have been litigated about 10 times since. This is an ideological,
anti-development battle, with the goal being to stop the project. Ms. Gould believes, as stated by Anuta
in a submittal to OWRD that there is “no right way to do the wrong thing”. 2019/2018 Record PDF 110.
With that as the backdrop this project has been the source of unprecedented weaponization of the land
use process with nearly 40 appeals. Now, Gould intends to weaponize the water process as well by
protesting any transfer, regardless of its merits, all the while insisting that additional superfluous
transfers are needed to give her additional appeal options. This case is a battleground in the
weaponization of water law. According to Kleinman, Ms. Gould intends to oppose any, and all water
permits for some time to come and says, “we are a long way from the time that building permits could
issue here.”2019/2018 PDF 110.
The same issues are routinely raised by opponents, some going back to 2005, and often regarding water
availability, mitigation water and its use. These issues were resolved in favor of the applicant and the
continued re-litigation of them is a collateral attack on the CMP/FMP. During the golf course site plan
appeal Gould and the opponents raised a wide range of issues the majority of which were collateral
attacks on prior approvals. The Board of County Commissioners, in their decision included Exhibit A,
which was a 24-page description of 17 major categories of issues opponents raised that were resolved in
1 In the extensive analysis that took place over FWMP litigation those impacts were shown to be in the tens,
hundredths, or thousandths (.1, .01, .001) of a degree, plus or minus, which cannot effectively be measured.
prior proceedings. See Exhibit A, BOCC Golf Course approval. Many of those same issues are raised
here. Again, they are barred by the theory of collateral attack.
In this proceeding, as you noted at the hearing the issue is very narrow. LUBA asks if, without Condition
17 the Phase A-1 TP satisfies the no net loss standard, and whether a change in the source of the
mitigation water constitutes a substantial change to the FWMP approval…. The BOCC in its decision on
remand found that “this is the limit and extent of what must be answered by the County on remand”.
The BOCC decision goes on to say: “In these proceedings the applicant removed uncertainty about
whether it can purchase the Big Falls Ranch irrigation water described in the FWMP. The applicant has
shown that the Big Falls Ranch water rights associated with Deep Canyon Creek are and remain surface
water rights even though they are pumped from groundwater wells. They may be purchased by the
applicant to mitigate for impacts that will occur after the resort starts to pump groundwater for resort
uses. When Big Falls Ranch water rights are purchased, Big Falls Ranch will discontinue pumping the
groundwater associated with the rights purchase. The applicant has shown in its evidence submitted to
the record, that it is feasible for it to purchase the Big Falls Ranch water referenced in the FWMP.”
And in 2019, the Board noted that “the applicant has demonstrated that the alleged situation that
created uncertainty about the Big Falls Ranch mitigation water rights, the transfer of the point of
diversion of Big Falls Ranch water – does not prevent compliance with the FWMP.” And it determined
that “the applicant is not proposing to change the source of mitigation water…”. Further, “In summary,
the Board finds the TP Condition 17 is not required to assure compliance with the no net
loss/degradation standard of DCC18.113.070(D) because the applicant must follow the FWMP, a plan
found by LUBA to meet the no net loss standard because the applicant has shown it is feasible to obtain
the Big Falls Ranch mitigation water”. BOCC TP remand pages 6-8. Although this decision is not binding
due the stipulated remand, it was based on sound reasoning and a careful review of much the same
evidence presented in 2021. The hearings officer should make the same finding here.
During the appeal of the golf course site plan the BOCC noted: “The Board finds the Applicant is not
proposing any change to the FWMP, which calls for the dams to be removed at points in the future.
Further, that while not required at this point, before it begins any pumping that the Applicant has
caused the cessation of pumping of the Deep Canyon Creek water and the removal of the head gate
which impounded the water in the Big Falls pond, allowing the Deep Canyon Creek water to flow to
the river, subject to the constraints the Beavers reinstall. At this point the Applicant has done more
than is required by the FWMP”. BOCC Golf Course Exhibit A, Page 11. This decision was affirmed
by LUBA on June 11, 2021.
The Board based both this tentative plan and the golf course site plan decisions on largely the same
information presented in this case. Save one critical thing. Thornburgh has now provided proof it has
purchased 90 acres of BFR Deep Canyon Creek water. This equates to 162 acre-feet of mitigation which
is more than 3x the 50 acre-feet of mitigation required for this Phase A-1 tentative plan. Earlier, the
BOCC found it was “feasible” for applicant to purchase the BFR water, and that when it was purchased
BFR would stop pumping groundwater. It’s clear what the Board thought with before when it just was
feasible to acquire the BFR water, that it was feasible for Central Land to acquire the required mitigation
water from BFR. Now Thornburgh has shown it has purchased the water and that BFR has stopped
pumping groundwater. Opponents for their part, have largely made the same arguments, raising issues
that are not relevant to the issue on remand, and constantly raising issues that were resolved and are
impermissible collateral attacks on prior approvals. See Boards Exhibit A. Further, the bulk of opponent
arguments deal with the issue of compliance with the FWMP, which is a matter not for the land use
process, but the annual reporting required by the mitigation plans and FMP condition 38.
FMP Condition 38 ensures compliance with the no net loss standard and compliance will be determined
by the annual reporting about the status of the mitigation plans. This was accepted with the approval of
the FMP and the mitigation plans. That the opponents were able to interject issues regarding the
transfer of the BFR water did not belong in the tentative plan approval. It should not be a relevant issue
unless and until the applicant requests to change the mitigation plan. This has been acknowledged in
both this case and then again in the Golf Course site plan.
In the original appeal in this case LUBA said the following: “We agree with intervenor that the details of
the mitigation plan are established by the FMP, and compliance (or noncompliance) with the mitigation
measures will be established by annual reporting required by FMP Condition 38. We reject petitioner's
argument that the FMP required intervenor to “fill in the details” to obtain approval of a tentative plan
during phased development.” See LUBA Phase A-1 TP decision, Page 13.
In the Golf Course site plan LUBA added: “FMP Condition 38 requires intervenor to "abide by" the
FWMP and "submit an annual report to the county detailing mitigation activities that have occurred
over the previous year." Record 34. “Satisfaction of the no net loss standard is ensured through
compliance with Condition 38, not Condition 10”. And: “The county found that the provision of water
to satisfy the FWMP is not relevant to the review of the golf course site plan because intervenor did not
propose and the county did not approve any change to the FWMP as part of the golf course site plan
review”. Record 13 (citing Gould VIII, 79 Or LUBA at 583 -84). See LUBA Golf Course decision page 13.
This tentative plan was submitted to the county for approval on May 2, 2018. Approval was received on
October 18, 2018. Since then, it has been the subject of an appeal to LUBA, appeals to the Oregon Court
of Appeals and the Oregon Supreme Court, a remand to the Hearing Officer, an appeal to the BOCC, and
another appeal to LUBA to get here. Once done here, given Gould’s ideological stance to delay and
thereby destroy Thornburgh, and her seeming endless resources to fight her ideological battle it’s
reasonable to expect more trips to the BOCC, LUBA and the Court of Appeals. All this for a tentative
plan allowed under the approved Conceptual Master Plan and Final Master Plans. To say this is an
abuse of the system is a massive understatement.
HO questions during the hearing.
1. Where is the source of the source.
Response: The source of the mitigation water is the Deep Canyon water rights described in the FWMP.
No changes have been made to the source of mitigation water.
2. Why is the source of the water important?
Response: At the hearing Mr. Kleinman answered that question stating: The quality of the source
matters. And that is because the importance of BFR water, specifically from the spring in deep canyon
creek which it owns the rights to, is providing the cold water for salmon and steelhead. That is the
quality issue as opposed to the quantity issue. While we disagree with Kleinman’s assessment on
importance (see Newton August 31 memo) the water he refers to is the water we have purchased and
are using.
3. If in fact the water comes from the same water right holder, BFR, if it comes from same entity
does that make a difference?
4. What difference does it make whether or not it comes from that entities well or the surface?
Response: For this proceeding these issues do not matter as we have purchased the Deep Canyon
surface water that Kleinman refers to. But as Mr. Newton explained, the purchase o fany BFR water
should provide essentially the same cool water benefit to Deep Canyon Creek and the Deschutes River.
It therefore doesn’t matter whether the OWRD mitigation was to come from BFR well water or Deep
Canyon surface water. Both will have the same effect and the no net loss will be met.
5. “If Ms. Fancher’s testimony is accurate, then there is no change in entity supplying water. If
there is no change, then in fact the remand issue that talks about a change may not be
important.”
Response: As we have consistently stated we are not changing the source of mitigation water. In this
proceeding we have shown we have purchased the Deep Canyon water rights. As a result, the premise
of the question is correct, without a change in the source, the remand issue mentioning a change in
water source is not applicable given the facts presented.
Response to Opponent Comments:
Karl Anuta:
1. Before the Deep Canyon Water can be used for mitigation it must: a) Be transferred back from
groundwater to surface water use, and then, b) Go through another change of use transfer
process, for an instream water right.
Response:
a) Applicant’s evidence clearly shows the water is still surface water. As shown above the BOCC
found the transfer of the POD didn’t change the water and that it is available. Anuta’s own
expert admits the Deep Canyon Water is still surface water. Hence there is no need to transfer
the point of diversion back to the creek. Further, the question of whether there is an instream
water right or the right has been transferred to the instream program is not part of this
proceeding, nor was it required by condition 17.
b) This is not the issue on remand. The tentative plan approval doesn’t create the need for
mitigation. It is the construction of buildings with people in them that creates water use.
Mitigation, per the OWRD rules is needed prior to that water use. This is not the issue on
remand and has been raised and resolved in applicant favor numerous times. It is a collateral
attack on the CMP/FMP. Further compliance with the FWMP is governed by the annual
reporting requirements of the Wildlife mitigation plan, which has been raised and resolved in
applicant favor. This is an impermissible collateral attack on the FMP. Anuta’s claim should be
rejected.
2. There is no evidence Thornburgh has closed on the 162 acre-feet of water from BFR.
Response: Anuta is completely wrong. I testified at the hearing this has happened and htat I had closed
on more than enough water from Big Falls Ranch. Mr. Newton who has represented both Thornburgh
and Big Falls Ranch also stated the resort has acquired 90 acres of water, that is equivalent to 162 acre-
feet of mitigation. And Ms. Fancher submitted the assignment of water rights form sent to OWRD that
shows the purchase of the water. The evidence is overwhelming.
3. The recent Groundwater Review for Thornburgh’s back up water rights permit determined that
the proposed withdrawal will over appropriate the aquifer.
Response: This has nothing to do with the issue on remand, and nothing to do with the mitigation in the
FWMP. Instead, this is thrown in to confuse the issue and distract from the relevant facts that show we
are and will comply with the FWMP. Anuta attaches some pages from the groundwater review. The
page he highlights is a form with a box checked. Items he overlooks are Page 6 of 10, section B, B1, (a)
states the groundwater is not over appropriated, and (b) water will likely be available in the amounts
requested without injury to prior water rights. This is like the issue raised by Mr. Arnold I dealt with in
an earlier submittal. Further, the issue of the availability of water was resolved in applicants favor in the
CMP. Raising the issue again is a collateral attack on the CMP. Furthermore, all issues related to the
water rights permit, and FMP Condition 10 were resolved against Gould by LUBA in its review of this
case. A further review of the issues is barred by the doctrine of law of the case.
4. The backup permit uses a well that will be abandoned.
Response: This not an issue on remand and has been litigated and resolved in applicants favor earlier in
this case. LUBA noted “The mitigation plan involves (1) the removal of two wells on the subject
property, (2) the removal of two dams that impede the flow of spring water from Deep Canyon Creek to
the Deschutes River, and (3) transfer of water from Deep Canyon Creek that Big Falls Ranch uses for
irrigation for mitigation”. And: “Intervenor responds, and we agree, that removal of the dams and
provision of mitigation water is required by the FMP approval and the tentative plan does not alter the
mitigation plan.” See LUBA TP, slip opinion, page 13. Further, the well is being proposed for
construction water under the limited license. It is to be removed prior to operation of the resorts water
system. This is an issue of compliance with the FWMP that will be determined during the annual
monitoring required by Condition 38.
Nunzie Gould.
1. The applicant has not taken out the dams.
This is not the issue on remand. The dams are not required to be taken out now. And when
required it is a matter for the annual monitoring program, not a land use process for this
proceeding or any other. Further it has been raised and resolved before. During the golf course
site plan, the Board of Commissioners found, like here, that the Applicant is not proposing any change to
the FWMP, that would require the dams to be removed earlier than in the future as required by the
FWMP. BOCC Golf Course decision.
2. The well indemnification agreement is absurd.
This is not an issue on remand. Also, the issue was litigated and resolved in 2007 in applicants favor and
any attack today is a collateral attack on the CMP. To provide a little background, in 2005-2007
opponents were concerned about the potential for Thornburgh’s groundwater pumping to affect their
wells. While Thornburgh disagreed, we understood their concern. In response we voluntarily offered
to indemnify anyone within a 2-mile radius whose well the resort’s groundwater pumping caused to fail.
This is not a code requirement nor anything forced upon us. It was a voluntary gesture of goodwill. The
2-mile distance was not an arbitrary distance. Rather it was the study area used in the hydrology study
done by Newton and as I understand it, OWRD.
John Lambie:
This submittal is largely a new report, much of which is not rebuttal, rather, new evidence. The issues
raised are rarely related to the issue on remand, and in cases are old issues, ones that have been raised
and resolved against Gould in the past.
1. “The source of water has not changed from the original surface water rights…”. Lambrie: Page
1. Deep Canyon Creek water rights are surface water rights.
Project opponents (Gould, Landwatch, etc..) have consistently argued, to create confusion, that the BFR
transfer changed the source of the Deep Canyon water rights from surface water into groundwater
rights and because of that change of source the BFR surface water rights are no longer available for
mitigation until they were transferred back to surface water. Both the new evidence and rebuttal in this
remand from both Anuta and Kleinman still argue this point. Apparently, they don’t believe their own
expert. On this we do agree with Lambie that following the transfer, the Deep Canyon Creek water
rights are surface water rights. We have consistently argued the source of the Deep Canyon water has
not changed, that the Deep Canyon water is still surface water. Jan Neuman email, Sarah Henderson
email, etc... Opponents are wrong on the law as confirmed by OWRD, and wrong on the facts.
Finally, the truth comes out. The admission that the source of the water has not changed coupled with
the fact that we have purchased that very water, should settle the issue and let us put all this to bed.
For good.
2. Flow of water in Deep Canyon Creek has not been made available by BFR actions to date
This is not the issue on remand. During the review of the FMP, the hearings officer determined that the
FWMP’s reliance on the purchase of water rights – not actual stream flow – would serve as the proper
measure of compliance with the FMP. Raising the creek flow issue vs. water rights issue now is a
collateral attack on the FMP and the FWMP.
Furthermore, Lambrie is not correct. It is uncontested that BFR has stopped pumping surface water
from Deep Canyon Creek. Lambie claims groundwater pumping of the Deep Canyon Creek water rights
has “dehydrated” Deep Canyon Creek springs, so they no longer create a flowing creek and that this
result is consistent with groundwater data and physics. This is not, however, correct.
To support his position Lambrie provides a Google Earth picture from July 2018 he claims shows that the
creek is not flowing to the river. But the photo shows dense vegetation along the creek that is likely
obscuring the flowing creek down to the BFR weir. Lambie has not accounted for the timeline of
relevant events. At the time his photo of the creek was taken, BFR was damming the creek and pumping
100% of their Deep Canyon water from the creek. It wasn’t until November 2018 that OWRD issued the
final order for transfer T-12651. In February 2019 the amended agreement between BFR and Pinnacle
was executed. It prohibited BFR from pumping water from Deep Canyon Creek and required them to
remove the weir. Thereafter, during the irrigation season they pumped groundwater. In 2019 after BFR
ceased pumping, opponents submitted aerial photos of the creek showing the weir removed and the
creek flowing to the river. Around the same time the applicant submitted a video of Deep Canyon Creek
water flowing through the weir, although the beavers were making their own dam in the same location.
See Ms. Fancher’s memo today on this subject which shows that the creek was flowing in 2019.
All this supports our contention that prior to the transfer BFR was taking the water from the creek, after
the transfer and agreement with Pinnacle, BFR stopped pumping, left the water in the creek, and
removed the weir so it could flow onward to the river.
3. The spring stopped flowing because well #1 is below spring elevation.
This is not the issue on remand. In spite of the evidence showing the creek flowing, to support this
speculation to the contrary, Lambie provides well data from BFR for wells 1, 3, and 4. He ignores well #7
also in T-12651. In his explanation he notes that well 1 is the most significant in that it is located “at the
upper end of Deep Canyon Creek.” Lambie’s comment implies well #1 is right at the spring, and because
of that close proximity it is taking all the water from the spring thus leaving the creek dry. In fact,
according to Lambie’s Figure 1 and supported by location information in the final order for T-12651,
Well #1 is 3,600’ SW of Deep Canyon at the nearest point and 8,580’ from the spring. Further well 3 is
2,970’ from the spring, well 4 is 6,415’ from the spring, and well 7 is 4,884’ from the spring. See attached
graphic overlaid on the Lambrie map showing well locations.
Mr. Lambie says that if the hydraulic head of a well falls below the elevation of a spring, the spring
discharge will cease “entirely.” This is clearly not occurring because the spring-fed Deep Canyon Creek is
still flowing. It may be that Mr. Lambie has inaccurately calculated the hydraulic head of Well #1 or the
area impacted by pumping at this well (assuming pumping impacts will extend 1.5 miles to the springs).
Lambie’s memo explains how the distance from a stream is important noting a cone of depression exists
from groundwater pumping that is “most acute at the well but more importantly extends across a
region.” The depression is greatest at the well and diminishes the further away you go from the well.
See page 4. Since the Deep Canyon Water right was transferred to 4 different BFR wells each of the
wells has increased pumping. This combined pumping has not “dehydrated” the stream as postulated
by Lambie. There is no empirical evidence that 100% of the pumping from all 4 wells (combined) is
depleting Deep Canyon Spring much less pumping from just 1 well (#1) by itself.
Lambie cites to OAR 690-380-2130(3) that he says eliminates the proximity requirement from section
2(d) of 2130. This requires, in the rest of the state that the new POD be within 500’ of the source. Here
the new POD, the 4 wells range up to 2 miles away from the point of diversion. The final order for T-
12651 shows well 1 to be 11,246’ from the original POD on Deep Canyon Creek, while well 4 is 8,395’
from the POD, well 3 is 5,491’ away and well 7 is 2,956’ from the POD.
The more important element of the OAR is the second half of 3(d) that Lambrie ignores. This changes
language in 2(c) that required the new POD to have a similar impact on the source as the original. 3(d)
prohibits OWRD from requiring a similar impact on the source between the original and new POD as a
condition of approving a transfer. The law clearly assumes the effects on the source may not be the
same from moving from a surface water POD to a well POA, and even prohibits OWRD from requiring it.
Even so, Lambie concludes on the basis of well logs for wells a mile or two away that 100% of the
groundwater pumping from them is coming from Deep Canyon spring. His conclusion is illogical.
Lambie states that “BFR is interfering with its own groundwater rights at these same four wells and may
find that their Deep Canyon Creek water rights are now subordinate and subject to curtailment or
perhaps forfeiture.” OAR 690-380-2130(3)(a) states that “The proposed transfer would not result in
injury to an existing water right or enlargement of the water right proposed for transfer.” In approving
the transfer T-12651 and applying OAR 690-380-2130(3)(a), the OWRD found no injury by the transfer to
an existing water right by the proposed groundwater pumping that would be authorized by the transfer.
4. Because Deep Canyon is diverted from wells you cannot stop diverting the surface water from
Deep Canyon Creek.
Lambie says this is a matter of fact, not a matter of water rights governance. This is illogical. The first
premise that the entire flow of the creek is now being diverted from wells is not true, as shown above.
He extends that premise to claim that “commingling of water rights” cannot easily be reversed to
restore the surface flows in Deep Canyon Creek he mistakenly claims are absent. His claim is contrary
to the entire premise on which the OWRD Mitigation rules were established. Newton’s August 31
memo says: “The premise for groundwater permits is that groundwater pumping reduces streamflows.
Conversely if groundwater pumping is lowered, the impact of the pumping on streamflows will be
reduced because less water is pumped and more will flow into the effected stream or river, which
mitigates for the pumping event causing the impacts.” Logically, wherever stream flows are reduced
when the pumping starts is where the stream flows will increase when pumping stops. Not somewhere
completely different as Lambrie contends.
This is related to the hearing officer question: “What difference does it make whether or not it comes
from that entity’s well or the surface?” As Newton states, the effect from the reduction of groundwater
pumping, whether from BFR well water, or the Deep Canyon surface water now pumped from the same
wells, will be the same. When BFR stops pumping groundwater discharge into the river will increase,
whether it occurs at the Deep Canyon Creek or directly into the river, resulting in net gains to the river.
The effect is the same. See Newton August 31 memo.
Because of his expertise and extensive knowledge of the geology of the Deschutes Basin, it is only logical
to find that our expert hydrogeologist, David Newton,2 is correct in saying that any water diverted from
the stream by groundwater pumping will be returned to the stream when pumping ceases. Pinnacle
purchased 90 acres of Deep Canyon Surface water rights mentioned in the FWMP. As shown by
documents filed by Ms. Fancher these water rights have been assigned to Pinnacle and Big Falls Ranch
has stopped pumping that Deep Canyon water from the wells, which is equal to 162 acre-feet of
mitigation. These are undisputed facts.
2 Mr. Newton’s work experience is included in his resume which is included in the 2018 record. It can be found at
2019/2018 PDF 832-841. The evidence shows Mr. Newton was a consultant to OWRD, a key member of
the guiding mitigation committee during creation of the mitigation program, and one of the foremost
experts on issues related to groundwater, its connectivity to surface water, and the overall
hydrogeology of the Deschutes River Basin.
5. There is no source of mitigation at all.
Lambie makes a whole host of wild points that there is no water, no mitigation available, that BFR has
no water available, etc. But then he admits that BFR has the rights to pump up to 24.14 cfs of water
from its various sources, both groundwater and surface water. He interjects another transfer that BFR
has applied for from the creek in MacKenzie canyon to further confuse things. None of this is the issue
on remand. The source and availability of mitigation water and the adequacy of water rights to prove
the quantity of mitigation was settled by approval of the FMP. Raising it now is a collateral attack on
the FMP.
6. Battle of the Experts
Lambie’s evidence stands, in many cases, in direct conflict to the expert evidence provided by our expert
David Newton. Based on Mr. Newton’s verifiable superior knowledge of the Deschutes Basin he clearly
wins that battle. Mr. Newton was raised in Redmond. His father and grandfather were involved in the
installation of pumps and irrigation systems in the area. Water in the Deschutes Basin, and the
Deschutes River is a passion of Mr. Newton’s and has been at the guiding core of his professional life.
He has explained he was a key member of the guiding committee working for OWRD in the creation of
the Deschutes Basin Mitigation program. He provided technical support and input on issues of geology,
surface water and groundwater conditions in the upper Deschutes Basin. Along with Marshall Gannet,
USGS, and Ken Lite, OWRD, he provided presentations to other committee members to provide them
the technical knowledge needed to understand the issues pertaining to hydrogeology in the Deschutes
Basin. David Newton is one of the foremost experts on the hydrology of the Deschutes Basin. Lambie,
simply isn’t in the same league as Newton.3
Jeff Kleinman:
1. Must transfer the water back to surface water.
This is immaterial and has been conclusively debunked above. Anuta has stated the transfer can
happen. Lambrie says it doesn’t need to happen as the Deep Canyon water is still surface water. OWRD
says the water is surface water. It is evident they want to further advance procedures that they can
then protest to continue to delay the development to death. This is just another ideological ploy.
David Arnold: Arnold makes numerous comments pertaining to water, most all of which he contends
should require a new CMP/FMP. This includes issues such as; that we own additional water rights, have
applied for other water rights transfers, and permits, and that BFR transferred their water to
groundwater wells. Arnold also raises his concerns about population growth, drought, spring levels, and
states that the original water permits were done without groundwater studies and should require them
today.
3 As an aside, in 2008 when the FWMP was being developed, Thornburgh’s water attorney was Martha
Pagel. Ms. Pagel was the Director of OWRD during the time OWRD was developing the Deschutes Basin
Mitigation program. Mr. Newton was a consultant to OWRD, years of which were during Ms. Pagels
directorship.
Response: In a previous letter I responded to these claims, the bulk of which have nothing to do with
the issue on remand. The evidence has shown that there is no change in source, that we are using BFR
water as discussed. That we also have substantial other water rights that are not being used, rather are
being left in the river to provide flow and habitat benefits to fish and aquatic species. As noted in my
previous letter this equates to roughly 308 acre-feet of mitigation we have left in the river. We are not
using it for this remand and have not requested “credit” for it. It is simply there.
Landwatch:
Direct comments from Landwatch comments in this proceeding are limited to the lot of record issues
that Ms. Fancher is addressing in detail. Instead of making any comments related to the issue on
remand Landwatch sent repeated pleas throughout their email list urging people to comment.
Landwatch provided the talking points that in many cases recipients simply cut and pasted to form their
“own” comments. Landwatch talking points included:
1. I am concerned about the excessive water use,
2. I am worried about the effect of such large water withdrawals on fish and wildlife,
3. Deschutes County requires resorts to prove that any negative impacts on fish and wildlife will be
completely mitigated,
4. Thornburgh reached an agreement with ODFW for water sources, and it appears those sources
are no longer available,
5. I am opposed to allowing Thornburgh to proceed until it shows it complies with mitigation,
6. If water has changed public should have right to participate in a new agreement with ODFW.
While the above was paraphrased from the Landwatch emails, in numerous cases the actual talking
points were repeated over and over in emails to the county and hearing officer. As is evident, most of
the resulting comments were not relevant to the issue on remand, and often were issues previously
resolved in favor of the applicant and are impermissible collateral attacks on the prior approvals. Ones
that are relevant to the issue on remand have been lumped into others that were dealt with by me
above, or by Ms. Fancher in other final arguments.
Most of the commentors also did not participate in the case below and are not entitled to do so here so
should not receive party status by virtue of filing comments.
Conclusion.
The issue on remand is very narrow and the applicant has conclusively shown that it meets the no net
loss standard without Tentative Plan Condition 17. The evidence shows that the applicant has the rights
to purchase the BFR Deep Canyon Creek water, that the Deep Canyon water is still surface water, that
BFR has stopped pumping Deep Canyon spring water from the Creek, removed the weir and is letting
that water flow through the BFR land. Further the applicant has given verbal and written testimony that
it has purchased the very water that opponents say is important and provided written confirmation of
such. There is no change in the source of the water, a fact that the opponent’s own expert admits.
The evidence and prior rulings from the BOCC and LUBA show that FMP Condition 38 determines
compliance with the FWMP which is accomplished by the annual monitoring required by the mitigation
plans. Compliance is not to be determined in the land use process. The hearing officer should never
have taken us here, but here it should end. Despite the frivolous claims, the distractions, and diversions
proffered by opponents, there can be no question the applicant is complying with the FWMP, which has
been held to meet the no net loss standard. Condition 17 is not needed for that. It is happening today.
Thank you for the consideration.
Sincerely,
Kameron DeLashmutt
Central Land and Cattle Company, LLC
FINAL ARGUMENT RESPONSE TO JOHN LAMBIE’S CLAIM RE ALLEGED LACK OF FLOW IN DEEP CANYON CREEK
Filed by Liz Fancher, Attorney for Central Land and Cattle Company, LLC
File No. 247-21-000731-A, Remand of Phase A-1 Tentative Plan
In his technical memorandum dated September 7, 2021, John M. Lambie states that “it is reasonable to expect
that flow at the spring will cease” due to the pumping of groundwater by BFR from its Well #1 due to the
elevation of the springs and the location of the hydraulic head. Mr. Lambie supports this claim with a Google
Earth aerial photograph he claims shows there is no open surface water flow to the Deschutes River in July 2018.
Mr. Lambie claims that the observation of no surface water flow from the springs and creek is consistent with
groundwater data and physics. The results of the data and physics are not, however, accurate. The record clearly
shows that the creek has flowing surface water.
The fact that the creek was flowing was well-documented in 2019. I filed a part of the LUBA record for the 2019
review on remand and the entire record of the 2018 review of the tentative plan in the record of the current
remand proceeding, File 247-21-000731-A. I have provided photographs and a chart below to point to places in
the .pdf document I filed with the County that contains this information using the page numbers of this .pdf
document earlier because the record page numbers are difficult to read for the 2018 record (the numbering is
overwritten) and to be consistent when citing to the 2019 partial record. I have also attached the pages I cite on
the chart and have added .pdf page numbers for ease of reference by the hearings officer.
Mr. DeLashmutt filed a number of photographs and a video in the record in 2019 that show that Deep Canyon
Creek is flowing to the Deschutes River and that the Deep Canyon spring is active and discharging water to the
creek. The following photograph taken on September 16, 2019 shows ripples of water in the upper pond on Deep
Canyon Creek as it travels downstream toward the beaver dam that slows the flow of the creek at the east end of
the pond. This pond is also visible in the Google Earth image relied on by Mr. Lambie but he does not explain
how the pond was created if not from flows from Deep Canyon spring that feeds the creek.
The following photograph filed by opponent Sage Dorsey taken in July 2019 also shows that Deep Canyon Creek is
flowing from the point of diversion of BFR water rights to the Deschutes River. Shading was professionally added
to the photographs at the request of Mr. DeLashmutt to identify the location of the creek:
Mr. Dorsey also filed a second July 2019 photograph in the record. It shows the breached BFR dam and the
flowing creek behind it. This contradicts Mr. Lambie’s theory that no surface flows would continue to flow in the
creek after BFR began pumping from groundwater no later than 2018.
The following chart identifies additional evidence in the 2019 record, like evidence in the 2021 record, that
proves the same thing.
PDF # Description of Document Information Contradicting Lambie’s Dry Creek Theory
61 9/24/2019 Letter from Jan Neuman,
water rights lawyer
Weir for Big Falls Ranch (BFR) dam removed; Deep Canyon
creek water can flow through the concrete channel to the
Deschutes River (as shown in photo on preceding page)
91 Central Land’s 9/24/2019 Final Argument
by Liz Fancher
Explains that opponents acknowledged that removal of
the BFR weir allows Deep Canyon Creek to flow to the
Deschutes River when not impeded by beaver dams and
that this is what is shown in the photographs filed by Sage
Dorsey.
102-
103
9/24/2019 Final Argument by Kameron
DeLashmutt
Deep Canyon Creek is flowing to the Deschutes River.
September 24, 2019
Page 3
Thus, BFR is legally and contractually bound to cease pumping surface
water from the creek and has already met this commitment. My clients and Big
Falls have also already removed the weir (flashboards) from the concrete channel
previously used by Big Falls to impound and divert the spring water from the creek
into their irrigation pumps. As a result, the water can now flow through the
concrete channel to the Deschutes River.2 Applicant acknowledged that beavers
had subsequently blocked the channel, but the beaver dam has now been removed,
as shown by the photos and videos submitted during the rebuttal period.
The upper dam (not on BFR property) has already been breached as well,
though beavers have since plugged that opening as well. That beaver dam and the
remaining earthen footings will be removed in accordance with the FWMP prior to
construction of Phase A as required.
The important point is that without the diversion by BFR, cold spring water
is now allowed to flow down Deep Canyon Creek to the Deschutes River. This flow
is legally protected in the creek because no other surface water rights are
authorized for this source and OWRD's administrative rules and its water
availability analysis substantially preclude new surface water rights in the
Deschutes Basin. Furthermore, ODFW has a pending permit application
(Application IS-70695) for an instream right in a segment of the Deschutes River
that includes Deep Canyon Creek for 250 cfs of instream flow, thus further insuring
there could not be any new water rights available at this location.
Gould Submission/Letter from Robert Long.
Through her attorney Jeffrey Kleinman, Ms. Gould offered a September 17,
2019 letter from Consultant Robert Long. Mr. Long says that he reviewed "two
rights under Permit S-32049, one right under Permit S-37392, and one surface
water certificate 76372." He then goes on to say that his letter "focuses on the
likely permitting requirements necessary to use the Primary water rights under
Permit S-32049 as instream mitigation for new water rights or a water right
transfer downstream."
I am not sure why Mr. Long is discussing these three water rights at all.
First, both permits he references were proven up and replaced by certificates some
time ago. Certificate 44281 was initially issued upon proving up of Permit S-32049
and Certificate 44283 was issued upon proving up of Permit S-37392. In 2000,
OWRD approved transfer T-6854, which made changes to those two certificates
2 As previously noted, the remaining concrete footings will be removed soon
after April 1, 2024, which is the completion date for T-12651.
LUBA 2019-136 AMENDED RECORD - Page 0273
“The first dam will be removed before beginning construction of the Initial Stage
of water use and the second dam will be removed before the Applicant begins
development of a water use equivalent to the original Stage B, a use over 1,201 AF annually.” LUBA Rec 489.
ODFW erred in describing the order of removal of the dams in it June 13, 2008 letter, LUBA
Rec -677, but corrected the error in subsequent comments. LUBA Rec 489, footnote 1. Central Oregon Landwatch (“COLW”) quotes from and relies on the June 13, 2008 ODFW letter in their September 17, 2019 argument to claim that the Big Falls Ranch dam must be removed
first and prior to construction of Phase A. As explained above, ODFW’s June 13, 2008 was in
error. While COLW claims the Big Fall Ranch dam has to be removed upfront, they are wrong. The applicant and Gould both understand that it is the upper dam, not the Big Falls Ranch dam that must be removed first. Gould’s Petition for Review acknowledges that the first dam to be
removed is the dam on the Nolan and Reimenscheider property; not the Big Falls Ranch dam.
Gould’s Petition for Review, p. 57. Gould, nonetheless, makes the erroneous claim that both dams must be removed now. In addition to being erroneous, this argument has been waived because it was not presented during the County’s initial review of the tentative plan/site plan application. ORS 197.763(1)(“raise it or waive it rule”); ORS197.835(3).
The issue of dam removal is also barred by law of the case. Beck v. City of Tillamook, 313 Or 149, 831 P2d 678 (1992). LUBA denied Gould’s request to place a condition of approval in the decision requiring removal of the dams finding that dam removal need not be assured by the tentative plan approval. Gould TP, pp. 37-38.
Furthermore, the opponents overlook the fact that BFR has ceased pumping water from Deep Canyon Creek and has removed the BFR weir. This allows Deep Canyon Creek to flow into the Deschutes River when not impeded by beaver dams. This fact is acknowledged on page 6 of the Rebuttal Memorandum (Kleinman) and in Landwatch rebuttal of 9/17 pg. 2-3. This is what the
memorandum of agreement requires BFR to do, and what the applicant has said has taken place -
- in its burden of proof, in hearings testimony, in photographs and videos and in the letter from Ms. Neuman. The photos submitted by Sage Dorsey also show that the weir has been removed with the line of the creek winding down to where it enters the river.
It is critical to recognize that removal of the weir is not required to occur until after completion
of Phase A of the FWMP – long after completion of Phase A of the Resort. As noted by Newton in his September 25, 2018 letter, the BFR impoundment was not to be removed until after the applicant was pumping an amount of water equal to 1,201 acre feet annually.12 The reason this has happened in advance of when required is that BFR, in consultation with applicant, moved the
point of diversion (pod) from the creek to a point of appropriation (poa) in the ground. Ms.
Neuman explained in her October 8, 2018 letter explained that “the transfer of the point of appropriation away from Deep Canyon Spring may allow dam removal to occur sooner than
12 The amount of water needed by the tentative plan is only about 8% of that amount.
LUBA 2019-136 AMENDED RECORD - Page 0304
With such overwhelming evidence, we thought this was truly straightforward as you had
suggested in your decision. Oh how wrong we were. Instead of offering evidence on the merits (which they lacked), Gould and related project opponents raised roughly 43 separate issues in this case. See Exhibit A, to this letter. Of the 43, only 4 deal, at least in part, with the issue on remand.2 All others are outside the scope of the remand. In addition to being outside the scope
of the remand, roughly half of the issues raised are barred from being raised now because they
have been settled by LUBA, barred by the Beck v. City of Tillamook doctrine of law of the case, or are barred because of the raise it or waive it rule. Of these issues, some were resolved in 2007, including the issue of the well indemnification agreement, raised by Gould in rebuttal, and concern over groundwater levels, both of which were settled and resolved in applicants favor in
2007 by the BOCC. These issues are not subject to collateral attack in this proceeding. In spite
of being settled 12 years ago, these issues are raised over and over again, the latest being on September 17, 2019. In addition to the strategy of distraction, Mr. Kleinman (Gould’s attorney) has threatened to
protest and appeal any action we take to use our mitigation water, regardless of the merits (lack
of merit) of the case and has employed a hyperbolic doomsday strategy coupled with an attack on everything and anyone Thornburgh accusing us of: “Song and dance, shell game (complete with dictionary definition), lip service, end of the line, sagebrush subdivision, double-dark secret agreement, damning contents, hearsay on hearsay, since when, this is the time and this is the
place, smoke and mirrors, Q.E.D., pig in a poke, talked to death, now or never, the goal posts
have just left the stadium, and then that the entire BFR and Thornburgh relationship and agreement is simply a “Pay to Say Deal.” While the depths that team Gould is willing to descend to is staggering, these aren’t real arguments, more a series of desperate distractions. Instead of dealing with the issue on remand, the opponents hype issues that are irrelevant to the
issue on remand.
Dam Removal Much evidence was submitted by opponents pertaining to the dams and the timing of their respective removal. In the decision approving the tentative plan, Hearing Officer Olsen wrote:
“the balance of the letter (ODFW 06/13/2008) focuses on dam and well removal
which the applicant states will be done as originally approved. To clarify, as represented in Mr. Newton’s Sept. 25, letter the first dam (Nolan and Reimenschneider property) must be removed prior to beginning construction
under the tentative plan approval at issue.” LUBA Rec 68.
Newton’s September 25 letter that begins at LUBA Rec 481 explains: “The first dam will be removed before beginning construction of the Initial Stage
of water use and the second dam will be removed before the Applicant begins
development of a water use equivalent to the original Stage B, a use over 1,201
AF annually.” LUBA Rec 489. While this issue is settled and barred from being raised again, it doesn’t stop opponents from
taking another run at it. In this case, opponents have taken 3 separate flights over the Big Falls
property to take photographs proving the dams have not been taken out. This was in spite of the timing of the dam removal having been resolved in the applicants favor in 2018 and LUBA ruled
2 Issues relevant to the remand are highlighted in yellow. Issues barred from being raised either under Beck or the “Raise it or waive it” rule are underlined.
LUBA 2019-136 AMENDED RECORD - Page 0315
that dam removal was assured by the FWMP and was not impacted by the tentative plan
approval. As such, this issue settled by LUBA and is barred by the law of the case. The irony of the flyovers and the resulting evidence they provided shows what the applicant claimed has actually happened.3 Specifically, the evidence shows: i) the weir impoundment damming the creek and forming the BFR pond has been removed. See Dorsey Photo #5 (9/17), and Central Ex. B1 (9/24),
ii) the creek is discharging into the Deschutes River, See Dorsey photo #2 (9/17) and Central Ex. B2 (9/24), and; iii) the upper earthen dam has been breached and within the “breach” a beaver family has built a 15’ wide dam diminishing the flow of the creek and forming the upper pond. See Dorsey photo #4, and Central Ex. 3, 3a-d.
The opponents acknowledge these facts in written materials as well. See: Kleinman rebuttal memo Page 5, and COLW memo 9/17 page 2-3. Note: When the beaver dam is removed it will release the entire pond that has formed which should clear the channel below of debris and vegetation and allow the spring to flow from its source to the river without ponding.
There will be no impact of the new groundwater pumping on Deep Canyon Creek Spring. This argument is a red herring that is wholly irrelevant. As applicant has said repeatedly, Pinnacle is buying water rights from BFR. As Pinnacle acquires that water, BFR will cease pumping that water from its wells and it will be used as mitigation for the resort’s groundwater
pumping. Until that time, the transfer of the point of point of diversion (pod) in the creek to a point of appropriation (poa) in the ground will serve as a temporary parking place for the water rights until Pinnacle acquires them. This is detailed in Ms. Neuman’s letter of October 8, 2018, and in Mr. DeLashmutt’s September 17, 2019 rebuttal that says: “While the transfer of the BFR water to the ground is largely a temporary event that lasts until Pinnacle acquires BFR water and
takes possession, it immediately restored the entire flow of the spring……” The net result of the transfer of the pod to a poa and Pinnacle’s water purchase agreement is to immediately cool temperatures and improve the health of fish habitat in the Deschutes River. The agreement and transfer discontinues pumping cold water from the creek now – long before
required by the FWMP. This benefit is assured by contract as of the date of the water purchase agreement with Pinnacle that was signed in February, 2019. As of the date of the agreement with Pinnacle, BFR ceased pumping all 464.9 acres of water from Deep Canyon Creek, equal to 837 acre of mitigation, leaving that water in Deep Canyon Creek rather than removing it for use in irrigating BFR farm fields.
What the opponents are doing is taking a huge benefit for granted and trying to taint it, claiming that the benefit is somehow bad and that the significant benefit might be impacted slightly by groundwater pumping. Their arguments lack a basis in fact. Instead are loaded with innuendo and conjecture. They should be viewed for what they are – a concerted effort to confuse the
issue with spurious claims. The BFR Transfer Did Not Convert the Surface Water Rights to Groundwater Rights. COLW in its August 27th comments claimed transfer T-12651 transferred the BFR surface water
rights to groundwater rights and that BFR would have to transfer the rights back to surface water
before applicant could use them. Kleinman on September 10th also claimed that BFR’s surface water rights were now groundwater rights that could take years (if ever) to become surface rights
3 Gould’s flights are what Mr. Kleinman refers to as Gould’s aerial feat.
LUBA 2019-136 AMENDED RECORD - Page 0316
August 2021
IN THE COURT OF APPEALS OF THE STATE OF OREGON
ANNUNZIATA GOULD and
PAUL J. LIPSCOMB, Petitioners, vs.
DESCHUTES COUNTY and
KAMERON K. DELASHMUTT,
Respondents.
EXPEDITED PROCEEDING UNDER ORS 197.850 AND ORS 197.855 Land Use Board of Appeals
No. 2020-095
CA A176353
ANSWERING BRIEF FOR RESPONDENT
KAMERON K. DELASHMUTT
On Appeal from the Final Opinion and Order of the
Land Use Board of Appeals dated June 11, 2021
Jeffrey L. Kleinman, OSB #743726 Email: KleinmanJL@aol.com
1207 SW Sixth Avenue
Portland, OR 97204
Telephone: 503-248-0808
Attorney for Petitioner
Annunziata Gould
Paul J. Lipscomb, OSB #752301 Email: judgelipscomb@gmail.com
PO Box 579
Sisters, OR 97759
Telephone: 503-551-7272
Attorney for Petitioner
Paul J. Lipscomb
David Adam Smith, OSB #170317 Email: adam.smith@deschutes.org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703
Telephone: 541-388-6593
Attorney for Respondent
Kenneth Katzaroff, OSB #143550 Email: KKatzaroff@schwabe.com Schwabe, Williamson & Wyatt, P.C. 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010
Telephone: 206-622-1711
Attorney for Respondent Kameron
K. Delashmutt
i
TABLE OF CONTENTS
STATEMENT OF CASE ................................................................................... 1
I. Nature of the Proceeding and Relief Sought .............................................. 1
II. Nature of the Order Being Reviewed ......................................................... 1
III. Statutory Basis for Jurisdiction .................................................................. 1
IV. Effective Date of Appeal ............................................................................ 1
V. Questions Present on Appeal ...................................................................... 2
VI. Summary of the Arguments ....................................................................... 2
VII. Statement of Facts ...................................................................................... 3
RESPONSE TO PETITIONER GOULD’S ASSIGNMENT
OF ERROR ............................................................................................... 4
LUBA correctly affirmed the County’s interpretation of and
findings of compliance with Condition 10 of the resort’s FMP.
This determination and interpretation of said condition is the same interpretation affirmed by this Court in Gould v. Deschutes County, 310 Or App 868 (2021). ................................................................ 4
I. Preservation ................................................................................................ 4
II. Standard of Review .................................................................................... 4
III. Argument .................................................................................................... 5
A. Condition 10 ..................................................................................... 5
B. Gould Misunderstands the Status of G-17036 ................................. 7
C. Gould Confuses Mitigation Requirements ..................................... 11
1. DCC 18.113.070(K) and Water Mitigation – Condition 10 ........................................................................ 12
2. DCC 18.113.070(D) and FWMP – Condition 38 ................ 15
ii
RESPONSE TO PETITIONER LIPSCOMB’S ASSIGNMENT
OF ERROR ............................................................................................. 16
LUBA correctly interpreted and applied ORS 197.455. The destination resort siting criteria of ORS 197.455(1) are not
applicable to the development decision upheld by LUBA.
Lipscomb’s argument ignores the plain text of the statute. This
assignment of error should be denied. ...................................................... 16
I. Preservation .............................................................................................. 16
II. Petitioner makes no effort to cite to the record or otherwise establish preservation of this assignment of error as required ORAP 5.45. However, Thornburgh agrees that Lipscomb previously argued that ORS 197.455 should apply to the County’s decision. Standard of Review ................................................................... 16
III. Argument .................................................................................................. 17
A. ORS 197.455(1) Criteria are Mapping Criteria Only .................... 17
B. A Golf Course Site Plan Does Not “Site” a Resort ....................... 21
C. Foland v. Jackson County is Inapposite to the Facts Presented ........................................................................................ 23
CONCLUSION ................................................................................................. 26
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Central Land and Cattle Company, LLC v. Deschutes
County,
74 Or LUBA 326 (2016) ..................................................................... 3
Central Oregon LandWatch v. Deschutes County,
245 Or App 166, 262 P3d 1153 (2011) ............................................ 19
Foland v. Jackson County,
101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167,
807 P2d 801 (1991) .............................................................. 23, 24, 25
Foland v. Jackson County,
311 Or 167, 807 P2d 801 (1991) ...................................................... 25
Gould v. Deschutes County,
310 Or App 868, 484 P3d 1073 (2021) .................................... 4, 5, 13
Gould v. Deschutes County,
79 Or LUBA 561 (2019) ............................................. 4, 12, 13, 15, 16
Kine v. Deschutes County,
313 Or App 370 (2021) .................................................................... 17
Mountain West Investment Corp. v. City of Silverton,
175 Or App 556, 30 P3d 420 (2001) ................................................ 17
Portland General Electric v. Bureau of Labor and
Industries,
317 Or 606, 859 P2d 1143 (1993) as modified by State
v. Gaines, 346 Or 160, 206 P3d 1042 (2009) .................................. 17
Statutes
DCC 18.113 .................................................................................... 21, 23
DCC 18.113.010 ................................................................................... 21
DCC 18.113.020(A)............................................................................... 22
iv
DCC 18.113.040(B)............................................................................... 22
DCC 18.113.040(C)......................................................................... 22, 23
DCC 18.113.050 – 18.113.070 .............................................................. 22
DCC 18.113.070(D) .............................................................................. 15
DCC 18.113.070(K) ........................................................................ 12, 14
DCC Title 22 ......................................................................................... 22
Oregon Revised Statutes (“ORS”) ......................................................... 2
ORS 197.445 ................................................................................... 19, 20
ORS 197.455 ................................................................................. passim
ORS 197.455(1) ............................................................................ passim
ORS 197.455(1)(a) .............................................................. 18, 19, 20, 23
ORS 197.455(2) ............................................................................ passim
ORS 197.455(2)(a) ................................................................................ 19
ORS 197.610 to 197.625 ....................................................................... 20
ORS 197.850(9)(a) ................................................................................ 17
ORS 537.211(1) .................................................................................... 10
ORS 537.230 ......................................................................................... 10
ORS 537.230(4) ...................................................................................... 9
ORS 537.260(1) ................................................................................ 9, 10
ORS 537.410 ......................................................................................... 10
ORS 537.410-450 .................................................................................... 9
ORS 537.450 ......................................................................................... 10
v
Other Authorities
25 Op. Att’y Gen. 91 (1951) ................................................................. 10
OAR 690 Division 505 .......................................................................... 13
ORAP 5.45 ............................................................................................ 16
Oregon Attorney General Opinion No. 1637 ...................................... 10
Oregon Rules of Appellate Procedure ................................................... 2
1
STATEMENT OF CASE
I. Nature of the Proceeding and Relief Sought
Petitioner Annunziata Gould (“Gould”) and Petitioner Paul J. Lipscomb
(“Lipscomb”)1 appeal the Land Use Board of Appeals (“LUBA”) order in
LUBA No. 2020-095, dated June 11, 2021 (the “LUBA Order”).2 That order
affirmed Respondent Deschutes County’s (the “County”) approval of site plan
review for a golf course, irrigation lakes, and a road system as part of the
Thornburgh Destination Resort owned by Intervenor-Respondent Kameron
DeLashmutt (“Thornburgh”).3 LUBA Rec 3.
II. Nature of the Order Being Reviewed
Thornburgh agrees with petitioners’ statement of the nature of the order.
III. Statutory Basis for Jurisdiction
Thornburgh agrees with petitioners’ statement of jurisdiction.
IV. Effective Date of Appeal
Thornburgh agrees that petitioners filed timely petitions for review.
1 Gould was the Petitioner at LUBA and Lipscomb was an Intervenor-
Petitioner.
2 We cite to LUBA’s record transmittal as “LUBA Rec” and the County’s
underlying record as “Rec”. Similarly, Petitioner Gould’s opening brief is cited
as “Pet Br” and Petitioner Lipscomb’s opening brief is cited as “IP Br” as he was Intervenor-Petitioner below.
3 Respondent Kameron DeLashmutt controls all entities that are developing the Thornburgh destination resort. For ease of reference, we refer to respondent as Thornburgh throughout this brief.
2
Petitioner Lipscomb, however, did not comply with brief filing requirements.
Specifically, on July 19, 2021, the Appellate Court Records Section Clerk
informed Lipscomb that his brief was noncompliant with the Oregon Revised
Statutes (“ORS”) and/or the Oregon Rules of Appellate Procedure (“ORAP”),
stating that his brief would not be considered if he did not file a corrected brief
on or before July 26, 2021. App 1. Lipscomb failed to make a timely corrective
filing. His brief, therefore, should not be considered.4
V. Questions Present on Appeal
1. Did LUBA err in its interpretation of Condition 10 of the Final
Master Plan (“FMP”), which interpretation was the same as the interpretation
upheld by this court in A171603?
2. Did LUBA err in interpreting ORS 197.455 consistent with the
previous interpretations made by it and this Court regarding the application of
that statute?
VI. Summary of the Arguments
LUBA correctly affirmed the County’s interpretation of Condition 10 and
determination that such condition had been met. LUBA properly addressed
Petitioner Gould’s arguments regarding mitigation, including articulating the
proper standards for mitigation pursuant to Condition 10 and separate and
4 In the abundance of caution, Thornburgh provides a response to Lipscomb’s brief.
3
distinct mitigation required by other conditions, namely Condition 38.
LUBA correctly interpreted and applied ORS 197.455 and precedent
interpreting that statute.
VII. Statement of Facts
LUBA accurately described the facts of this case. LUBA Rec 76-78. For
ease of reference, a quick overview and timeline of the final land use decisions
related to Thornburgh and their timing is provided here:
2006 - County approves Thornburgh conceptual master plan
(“CMP”). LUBA Rec 3. The CMP is final on December 9, 2009.
Rec 1839.
2008 – County approved a final master plan (“FMP”). Id. FMP
approved phased development. FMP “effectively incorporated and
displaced the CMP approval.” Central Land and Cattle Company,
LLC v. Deschutes County, 74 Or LUBA 326, 346 (2016). The FMP
became final in September of 2018. Rec 1839.
2018 – Thornburgh received County approval of the “Phase A-1”
subdivision tentative plan and utility site plan. LUBA Rec 7. We
refer to those approvals as the Phase A-1 TP.
o LUBA remanded Phase A-1 TP on a narrow question;
whether a condition of approval violated the right to public
participation on the no net loss standard. LUBA Rec 8.
4
o Court of Appeals affirmed the Remand. Gould v. Deschutes
County, 310 Or App 868, 484 P3d 1073 (2021).
The first site plan approved by the County was the approval of the
resort’s utility facilities in the Phase A-1 TP decision, which is pending review
on remand at the County, following this Court’s affirmance. Rec 2026. The
utility site plan approval was not challenged and is not at issue in the remand.
The decision challenged here is an approval of the second site plan filed
for development of Thornburgh, which includes a golf course, irrigation lakes,
and a road system. LUBA Rec 79.
RESPONSE TO PETITIONER GOULD’S ASSIGNMENT OF ERROR
LUBA correctly affirmed the County’s interpretation of and findings of
compliance with Condition 10 of the resort’s FMP. This determination and
interpretation of said condition is the same interpretation affirmed by this Court
in Gould v. Deschutes County, 310 Or App 868 (2021).5
I. Preservation
Gould previously argued that Condition 10 was not satisfied.
II. Standard of Review
Gould adequately articulates the standard of review.
5 The LUBA decision affirmed is Gould v. Deschutes County, 79 Or LUBA 561 (2019).
5
III. Argument
Gould has established no legal error in LUBA’s decision. Gould assigns
error to LUBA’s decision “because it affirmed the county’s interpretation of
Condition 10, determining that the county had not misconstrued the applicable
law.” Pet Br 15. Gould is incorrect.
LUBA reviewed the County’s interpretation of Condition 10 and found it
legally correct. LUBA Rec 90-91. LUBA noted that this Court has already
upheld this interpretation in Gould v. Deschutes County, 310 Or App 868, 484
P3d 1073 (2021). LUBA Rec 91.
Gould also assigns error because “there is no assurance that the permit in
question will ultimately be extended.” Pet Br 17. That is not, however, what
Condition 10 requires.
A. Condition 10
Thornburgh provided a review of the relevant history and local code
provisions related to the adoption of FMP Condition 10 to LUBA that is
summarized at LUBA Rec 135-137. This information provides the contextual
background for the County’s interpretation and determination of compliance
with the condition.6 While context is helpful, it is the plain language of the
condition itself that controls and further defeats Gould’s challenge. Condition
6 We again note that this is the same determination previously reviewed and upheld by this Court.
6
10 requires:
Applicant shall provide, at the time of tentative plat/site plan
approval review for each individual phase of the resort
development, updated documentation for the state water right
permit and an accounting of the full amount of mitigation, as
required under the water right, for that individual phase. Rec 15. As is clear by its plain language, Condition 10 imposes two requirements:
(1) updated documentation for the state water right permit; and (2) an
accounting of mitigation required under the water right by the Oregon Water
Resources Department (“OWRD”), for that phase. Nothing in Condition 10
requires that the Applicant make any showing that an approved and valid water
right permit will be extended by OWRD over a project opponent’s objection.
The only requirement regarding the state water right permit is to provide
“updated documentation[.]” Thornburgh provided that information. Rec 403.
Gould has not challenged the sufficiency of this information or provided any
reason that the information provided failed to meet the requirements of
Condition 10. Instead, Gould argues that Condition 10 cannot be met because of
Gould’s pending challenge to OWRD’s Proposed Final Order proposing to
approve the water right permit extension.7
7 Gould also appears to argue that required mitigation for fish habitat is not met. Pet Br 3, 18. Gould confuses the mitigation requirements of Condition 10 with those contained in Condition 17, which require adherence to the Fish and Wildlife Habitat Mitigation Plan (“FWMP”). This argument is addressed below.
7
Thornburgh provided substantial evidence that documented the status of
the relevant water right. This included information from OWRD showing that
the permit was “Non-Cancelled” (Rec 2236) and that “applicants have an active
permit (G-17036)” (Rec 1581). Thornburgh’s water lawyer, Janet Neuman,
provided additional information related to the status of the Resort’s water
rights, including legal analysis and citation to state law that indicate water right
permits remaining in force and effect until cancelled. Rec 398, 434, 873, 2308-
2320. The above information is all that Condition 10 requires – “updated
documentation.”
Gould has not argued that this information is insufficient. Instead, Gould
argues that OWRD’s decision to approve the permit extension is being
challenged (by Gould) and so Condition 10 cannot be complied with because
“there is no assurance that the permit in question will ultimately be extended.”
Pet Br 17. Gould goes on to argue that LUBA’s Order would “grant the
applicant a license to violate Condition 10.” Id. That is simply not the case.
Condition 10 is an informational requirement only and Thornburgh has
complied with it. On that basis alone, LUBA’s decision is not unlawful in
substance and should be affirmed.
B. Gould Misunderstands the Status of G-17036
Gould attempts to litigate the status of the water rights permit in the land
use context and under the guise of a challenge to Condition 10. However, Gould
8
cites to no law, case, rule, or authority whatsoever to support her claim that
G-17036 is not a valid water right. Furthermore, she has failed to explain why
the information provided does not satisfy Condition 10.
Gould does not dispute that G-17036 is a valid water right permit. In fact,
Gould admits that it is not “void or invalid[.]” Pet Br 16. Gould argues that
Thornburgh had to seek an extension of the water right permit, and that because
Gould has challenged OWRD’s decision to allow the extension, Gould
speculates that “result of that proceeding may well be the denial of the
requested extension.” Pet Br 16. Gould fails, however, to explain why, if her
challenge to the extension is successful, Thornburgh would fail to meet
Condition 10. Instead, Gould argues that denial of the extension would leave
Thornburgh without water for consumptive use. Id. Gould goes on to state,
without any citation, that G-17036 is the “sole source of water approved for
resort use under the resort’s Final Master Plan.” Id. That is not a challenge to
compliance with Condition 10 and is not a basis to determine that LUBA’s
Order is unlawful in substance.8
More importantly, both OWRD and Thornburgh agree, the water right
permit is still active, is non-cancelled, and may still be relied upon. Rec 1581,
8 Gould’s assertion is also incorrect. The record includes evidence of hundreds of acres of water rights that can be used by the resort that are not covered by G-17036. LUBA Rec 229.
9
Rec 398, 434, 873, 2308-2320. No statute, rule, or case provides for the
automatic, unilateral cancellation of a water right permit and OWRD has taken
no steps to cancel the permit, here. See ORS 537.410-450 (outlining procedures
OWRD is required to follow to cancel a permit). Gould has provided no
authority that establishes that her challenge of the extension changes the status
of the permit. Simply put, G-17036 is still a valid and existing water right and
Gould’s challenge to an extension has no bearing on compliance with Condition
10.
More importantly, Gould misunderstands or misstates the significance of
her challenge to the Proposed Final Order granting the extension request. Under
ORS 537.230(4) “for good cause shown, [OWRD] shall order and allow an
extension of time” to complete works to perfect a water right. Emphasis added.
The “good cause shown” standard is the standard that will be litigated in
Gould’s challenge. It is reasonable to believe that “good cause” exists given
that the primary reason Thornburgh’s efforts to perfect the water right permit
were not completed were due to Gould’s dozens of legal challenges at the
County, LUBA, and other judicial proceedings. Rec 238, 1838-1840.
Relatedly, OWRD cannot unilaterally cancel a permit. Under ORS
537.260(1), OWRD “may . . . order cancellation of the permit” but only after
the permit completion date “has expired and the owner of the permit fails or
10
refuses” to submit proof of completion as required by ORS 537.230. OWRD
“may” order cancellation, but it is not required to do so. ORS 537.260(1).
Pursuant to ORS 537.211(1), “…upon receipt of the permit the permittee
may proceed with the construction of the necessary works and may take all
action required to apply the water to the designated beneficial use and to perfect
the proposed appropriation.” That is exactly what Thornburgh is attempting to
do by seeking site plan approval and developing its golf course and irrigation
lakes.
ORS 537.410 to ORS 537.450 provide a detailed process for cancelling a
permit. OWRD “may” cancel the permit for, among other things, failure to
“complete the construction work within the time required by the law, or as fixed
in the permit, or within such further time as may be allowed under ORS 537.230
. . .” ORS 537.410.( Emphasis added.) Thornburgh complied with these statutes
and applied for an extension prior to the permit’s expiration, and that extension
application is currently subject to OWRD’s Proposed Final Order proposing to
grant the extension. Gould’s challenge to that decision by the agency does not
automatically result in a cancellation. Thornburgh is pursuing to complete work
“within such further time.” Consequently, OWRD has no authority to cancel the
permit while an extension proceeding is still pending. This is consistent with the
Oregon Attorney General Opinion No. 1637 that stresses the need to follow
cancellation procedures in Oregon’s water code. See 25 Op. Att’y Gen. 91 at 6
11
(1951) (“the grounds for cancellation are specifically set out. Where a statute
authorizes revocation of a permit for causes enumerated, such permit cannot be
revoked on any other grounds other than the causes specified.”).9
Nothing in the various and applicable water rights statutes indicates that a
permit for which an extension has been timely requested could be automatically
cancelled by OWRD or that Gould’s challenge to a request to an extension
operates to render a non-cancelled permit void.
C. Gould Confuses Mitigation Requirements
LUBA’s Order does not, as Gould suggests, leave a “hanging chad”
where Thornburgh can “locate an entirely different source of water” and
thereby upset wildlife habitat or the Fish Addendum to the Wildlife Mitigation
Plan (“FWMP”). Pet Br 18. In making this argument, Gould conflates the
mitigation requirements of Condition 10 (OWRD mitigation) and Condition 38
(FWMP mitigation) – an issue we address in more detail below.
Furthermore, Gould’s unsubstantiated concern about disrupting the
approved scheme for wildlife mitigation is not well founded. Even if
Thornburgh pumps groundwater from resort wells as under the authority of a
different permit, it will still be pumping the same water for use on the same
9 OWRD has indicated that it intends to grant the extension, and in fact issued a final order approving it. LUBA Rec 87. Upon challenge by Gould, OWRD withdrew the final order to allow the issue to go a contested case hearing, which remains pending. Id.
12
resort property from the same regional aquifer – presumably with the same
impacts to the same aquifer.10 Rec 193, 496, 938, 1138-1160. Thornburgh will
remain bound by the FWMP to provide mitigation through Condition 38.
LUBA Rec 13. Gould has not challenged Condition 38 or the County’s
underlying findings of compliance with Condition 38.11 Gould may not bring
such a challenge now.
1. DCC 18.113.070(K) and Water Mitigation – Condition 10
During the review of the CMP, the County was required by DCC
18.113.070(K) to determine that adequate water will be available for all
proposed uses for each phase of development. LUBA Rec 18. Condition 10 was
imposed to ensure compliance with that code. LUBA Rec 16. Condition 10
requires “mitigation” – but the context for that mitigation is “. . .documentation
for the state water right permit and an accounting of the full amount of
mitigation, as required under the water right . . .” LUBA Rec 13.
Using a labored and out-of-context quote from Gould v. Deschutes
County, 79 Or LUBA 561 (2019)(“Gould VIII”), Gould argues that LUBA
determined that Condition 10 requires “proving up” of necessary mitigation
10 Pumping from the regional aquifer is required by DCC 18.113.070(K).
11 The County found, in approving the golf course site plan: “Compliance with the FWMP is assured by Condition 38 of the FMP and its program of annual monitoring. As long as a proposed development application does not alter the FWMP, the FWMP is not relevant in the review of a site plan or tentative plan application.” Rec 34. Gould has not challenged this finding.
13
water.12 Pet Br 20. LUBA’s quote addresses water availability in general. It
discusses not only Condition 10, but also Condition 38 and Condition 39 – a
fact not mentioned by Gould. Gould VIII at n 9. LUBA’s view of the mitigation
required by Condition 10 is:
“***water mitigation [required by Condition 10] is based on consumptive use, the condition [10] requires proof of adequate water rights and mitigation commensurate with the estimated
consumptive use of water for the development approved at each
phase of development, and in advance of actual water
consumption.”
Gould VIII at 574-575.
LUBA makes it clear that “consumptive use” mitigation is the mitigation
required under the Deschutes Basin Ground Water Mitigation Rules found at
OAR 690 Division 505. Gould VIII at 575, n 11. The mitigation required by
OWRD is required to come from the General Zone of Impact (Rec 1159, 2322,
2324), whereas the mitigation required by the FWMP is more specific. Rec
2329 (FWMP).
As is evident from the above, LUBA understood that there is a difference
in water quantity mitigation under the water right addressed by Condition 10
and fish and wildlife mitigation under the no net lost standard addressed by
Condition 38 and the FWMP. This fact is again reflected in LUBA’s Order
12 Gould VIII was affirmed by this Court. Gould v. Deschutes County, 310 Or App 868, 484 P3d 1073 (2021).
14
affirming approval of the golf course site plan at page 13 of its decision. See
also LUBA Rec 44.
Further, Gould misunderstands the requirements of DCC 18.113.070(K).
Gould argues that if a new application were before the county, the applicant
would have to “prove up” the water and that if “the applicant lacked the
requisite permit from OWRD, its application would almost certainly be
denied.” That is incorrect. This issue was before the County when it approved
the Thornburgh CMP. It found that the water availability required by DCC
18.113.070(K) is met if there is substantial evidence in the record that the
Resort “is not precluded from obtaining such state agency permits [for water
rights] as a matter of law.” Rec. 938 (Decision of Deschutes County Board of
County Commissioners approving CMP).
DCC 18.113.070(K), the water availability rule, provides that:
“Adequate water will be available for all proposed uses at the destination resort, based upon the water study and a proposed water conservation plan. Water use will not reduce the availability of water in the water impact areas identified in the water study considering existing uses and potential development previously
approved in the affected area. Water sources shall not include any
perched water table. Water shall only be taken from the regional
aquifer. Where a perched water table is pierced to access the
regional aquifer, the well must be sealed off from the perched
water table.”
Nothing in that code provision requires that a permit have been granted
or be unchallenged, or that the full amount of mitigation be “proved up” or
15
actually provided at the time of application. What Gould is really arguing is that
Thornburgh must provide all mitigation water for all consumptive use now.
That is not what the condition requires and Gould has already lost on that issue.
Gould VIII at 573-574. All that is required here is that Thornburgh provide
updated information regarding the water right and the mitigation needed for the
golf course use. Thornbugh has done so and LUBA properly affirmed the
County’s determinations on that point. LUBA Rec 46.
2. DCC 18.113.070(D) and FWMP – Condition 38
Condition 38 of the FMP assures that Thornburgh will meet the County’s
“no net loss” standard regarding fish and wildlife found at DCC 18.113.070(D)
by requiring compliance with the Wildlife Mitigation Plan, including the fish
habitat addendum (FWMP). LUBA Rec 65-66. Nevertheless, Gould again
argues that fish habitat, including impacts to Whychus Creek, are somehow
embedded in the requirements of Condition 10 and that LUBA does not
understand that this is her argument. Pet Br 22-23. LUBA understood and
correctly rejected Ms. Gould’s argument. LUBA correctly determined that the
requirement to meet the “no net loss” standard is part of a different condition –
Condition 38 – which Gould has not challenged. LUBA Rec 41.13
13 Condition 38 requires: “The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of offsite mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing
16
Gould states that the applicant (Thornburgh) has “fail[ed] to comply with
the plain language of Condition 10.” That is simply incorrect. The County (now
on two occasions), LUBA (now on two occasions), and this Court, have all
determined or affirmed that the mitigation reporting required by Condition 10 is
an informational requirement only. Thornburgh provided the requisite
accounting and LUBA’s finding as such should be affirmed. LUBA Rec 69-71.
RESPONSE TO PETITIONER LIPSCOMB’S
ASSIGNMENT OF ERROR
LUBA correctly interpreted and applied ORS 197.455. The destination
resort siting criteria of ORS 197.455(1) are not applicable to the development
decision upheld by LUBA. Lipscomb’s argument ignores the plain text of the
statute. This assignment of error should be denied.
I. Preservation
Petitioner makes no effort to cite to the record or otherwise establish
preservation of this assignment of error as required ORAP 5.45. However,
Thornburgh agrees that Lipscomb previously argued that ORS 197.455 should
apply to the County’s decision.
mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek.”
Gould VIII at 575, n. 9.
17
II. Standard of Review
Petitioner provides no standard of review except to say that
“interpretation of statutory provisions such as ORS 197.455 is a question of law
for this Court on review.” IP Br 5. Based upon this statement, this Court’s
review is governed by ORS 197.850(9)(a), which provides that:
“(9) The court may affirm, reverse or remand the order. The court shall reverse or remand the order
only if it finds:
“(a) The order to be unlawful in substance or
procedure, but error in procedure is not cause for
reversal or remand unless the court finds that
substantial rights of the petitioner were prejudiced
thereby[.]”
LUBA’s order is “unlawful in substance if it represent[s] a mistaken
interpretation of applicable law.” Kine v. Deschutes County, 313 Or App 370
(2021) citing Mountain West Investment Corp. v. City of Silverton, 175 Or App
556, 30 P3d 420 (2001)(internal quotations omitted).
Statutory interpretation begins with the plain language of the statute.
Portland General Electric v. Bureau of Labor and Industries, 317 Or 606, 610–
12, 859 P2d 1143 (1993) as modified by State v. Gaines, 346 Or 160, 171, 206
P3d 1042 (2009).
III. Argument
A. ORS 197.455(1) Criteria are Mapping Criteria Only
ORS 197.455(1) allows for the siting of destination resorts “only on lands
18
mapped as eligible for destination resort siting by the affected county.” ORS
197.455(1)(a) then includes a list of conditions that disqualify certain lands
from being mapped as eligible for destination resort siting. Petitioner argues
that these conditions should also apply after land has been mapped as eligible
and approved for resort development. IP Br 8-9. This argument is clearly
wrong. If land is mapped as eligible, as it is here, a county may approve the
siting of a resort on that land unless and until the map is updated or changed to
remove eligibility. ORS 197.455(2).
ORS 197.455(2) requires a county to adopt an eligibility map as part of
its comprehensive plan. Once adopted, a “map adopted pursuant to this section
shall be the sole basis for determining whether tracts of land are eligible for
destination resort siting[.]” Id. That map conclusively establishes the property
that is eligible for siting and development of a resort. A review of the mapping
criteria of ORS 197.455(1) is not permissible during each individual phase of
resort development thereafter.
LUBA correctly interpreted the statute stating:
“The limitations on resort siting in ORS 197.455(1) apply at
the time that county adopts maps identifying lands eligible fors
siting destination resorts. After a county has adopted such maps,
the limitations in ORS 197.455(1) do not apply to specific
applications for destination resorts. Instead, the adopted maps
control whether a specific property is eligible for destination resort siting.” LUBA Rec 10.
19
LUBA’s Order is consistent with Central Oregon LandWatch v.
Deschutes County, 245 Or App 166, 262 P3d 1153 (2011)(“COLW”) which
finds:
“ORS 197.455 concerns the first step in the establishment of a destination resort, that is, the identification of the land that is eligible for development of destination resorts and the mapping process.”
COLW at 170.
During a review of a resort proposal, ORS 197.445 and the resort map
apply. This Court found in COLW that,
“Unlike ORS 197.455, which concerns the identification of land and the mapping process, ORS 197.445 concerns the second discrete step in the establishment of destination resorts—that is, the approval standards for individual destination resort proposals.”
COLW at 172.
Lipscomb offers a tortured read of the statute, arguing that lands mapped
as “eligible” may not qualify to be “approved” to site a destination resort. IP Br
8. Lipscomb argues that “times change and with those changes lands previously
mapped as ‘eligible’ may not qualify to be ‘approved.’” IP Br 8. Lipscomb
further argues that the City of Bend exceeds the 100,000 population threshold
for qualifying lands for mapping under ORS 197.455(1)(a).14 IP Br 13.
14 Lipscomb mistakenly cites to the mapping criteria found at ORS 197.455(1) ORS 197.455(2)(a). IP Br 10, 13.
20
Lipscomb misunderstands the statute. The population threshold contained in
ORS 197.455(1)(a) is applicable only to the County’s mapping of eligible lands.
And, if the legislature had intended such requirement to apply for after the
mapping of eligible lands, it would have included that requirement in ORS
197.445, which provides criteria for individual destination resorts and not the
mapping eligibility requirements at ORS 197.455. Lipscomb cites no authority
that holds that the population threshold applies after lands have been mapped as
eligible for destination resort siting.
Lipscomb argues that the “actual current conditions” control and that
ORS 197.455(1)(a) allows resort development but limits residential
development to staff housing only. IP Br 14-15. This argument concedes that a
destination resort and golf course may be sited on land within 24 air miles of a
city with a population of 100,000 and does not prevent approval of the
Thornburgh golf course. IP Br 15. Additionally, Lipscomb’s argument that
residential development is limited to staff housing is properly rejected. The
statute plainly states that “[a] map adopted pursuant to this section shall be the
sole basis for determining eligibility.” Id. The statute also provides that such
map may be amended as part of a post-acknowledgement procedure pursuant to
ORS 197.610 to 197.625, but only once every 30 months not during the review
of site plan applications. ORS 197.455(2).
21
B. A Golf Course Site Plan Does Not “Site” a Resort
Lipscomb attempts to distinguish the terms “eligible” and “siting”,
arguing that mapping is not siting and that the CMP and FMP approvals “are
just planning for future siting, rather than actual siting.” IP Br 9. According to
Lipscomb, “siting” does not take place unless and until a site plan is approved.
IP Br 9. That is incorrect.15
Once mapped as eligible, a resort may be sited and developed. In this
case, Thornburgh Resort has obtained approval of a conceptual master plan
(CMP) and a final master plan (FMP) that authorizes resort development,
including construction of the improvements proposed here.16 DCC 18.113.010
describes this process:
DCC 18.113.010. Purpose.
A. The purpose of the DR Zone is to establish a
mechanism for siting destination resorts to ensure compliance with
LCDC Goal 8 and the County Comprehensive Plan. The
destination resort designation is intended to identify land areas which are available for the siting of destination resorts, but which will only be developed if consistent with the purpose and intent of DCC 18.113 and Goal 8.
Once a property is mapped (pursuant to ORS 197.455(2)), the map
15 We also point out that Phase A-1 included site plan review and approval for utility facilities. That approval was not challenged and is not part of the remand of that case.
16 Phase A-1 remains pending in a narrow remand proceeding.
22
allows development of a destination resort, so long the other requirements of
state law are met. See ORS 197.455(2); See also DCC 18.113.020(A).
If land is mapped as eligible, an applicant may apply for and receive
approval of a conceptual master plan (CMP) and conditional use permit that site
the resort. See DCC 18.113.040(A). The CMP assures compliance with the
requirements of the County’s resort code that implement state law. See DCC
18.113.050 – 18.113.070. The CMP is the original, guiding document that
allows siting and addresses all impacts of the proposed destination resort. DCC
18.113.050 – 18.113.070 impose detailed criteria related to a proposed site such
as acres developed, natural features, requirements for traffic study, how
development will occur, design guidelines, open space management, public
facilities, utility facilities, and an “explanation of how the destination resort has
been sited or designed to avoid or minimize adverse effects on adjacent lands”
(emphasis added), among many other requirements). Once a CMP is approved,
a resort is “sited” for purposes of ORS 197.455.
Once a CMP is approved, the applicant must prepare a final master plan
(FMP). The FMP must “incorporate all requirements . . . of the CMP.” DCC
18.113.040(B). The FMP then subsumes the CMP and “shall be treated as a
land use permit in accordance with DCC Title 22”. DCC 18.113.040(B).
Lastly, in order to actually develop the sited destination resort, specific
site plans for each phase must receive additional approval. DCC 18.113.040(C).
23
This make sense, because it is at that time that the development must comply
with subdivision and site plan criteria that specify the details of how master
planned development will occur.
Further, DCC 18.113.040(C) (and indeed, most of the rest of DCC
18.113) directly contemplates phasing of development. If ORS 197.455(1)(a)
could suddenly bar approved future phases because of a population increase of
a nearby UGB, the provisions permitting phased development or reliance upon
a final binding land use decision (the CMP or FMP), would be meaningless.
That would be an absurd result.
C. Foland v. Jackson County is Inapposite to the Facts Presented
Lipscomb’s reliance on and interpretation of Foland v. Jackson County,
101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167, 807 P2d 801 (1991),
is incorrect. Lipscomb states that this Court previously “dealt with a similar
problem and *** reached this same result: compliance with ORS 197.455(2)
should be measured by current conditions, and not just by the conditions present
previously at the time of original mapping.” IP Br 10. That interpretation
misapplies the Court’s decision.
The Court’s Foland decision held that additional evidence may be
considered when amending a destination resort map and allowed siting a resort
on the newly mapped land. Foland, 104 Or App at 635-636. It does not stand
for the proposition that the mapping rules of ORS 197.455 apply after resort
24
siting has been approved or that mapping criteria under ORS 197.455(1) apply
to bar subsequent development approvals. Foland does not authorize a county
to ignore the plain language of ORS 197.455(2) that dictates that maps adopted
under that statute shall be the sole determinant of whether a resort may be sited
on a particular tract of land.
In Foland, the petitioners sought review of a LUBA order and contended
that LUBA had erred in holding that “decisions [to amend a resort map and to
site a resort on that land] could be based on later studies and maps . . . rather
than solely on the county’s adopted destination resort siting map. Foland, 101
Or App at 634. In that case, the county had adopted a specific map within its
comprehensive plan determining which lands were eligible for destination
resort siting. Id. The county’s comprehensive plan, however, also included a
“refinement clause” which allowed an applicant to use “more precise soils
resource mapping” to determine eligibility. Id. at 635. The applicant provided
such information and the county approved siting eligibility, including adopting
amendments to the comprehensive plan and zoning maps based upon that data.
Id. at 634-635. Petitioner’s challenged use of the new maps to determine resort
siting, arguing that county’s original map was the “sole method for determining
eligibility” and that only the original soil maps were allowed. Id. at 638.
Petitioners also argued that such changes evaded review under Goal 8. Id. at
634. The court rejected that argument and determined that supplemental
25
mapping – as permitted by the refinement clause – was consistent with the
statute.
On review, the Supreme Court of Oregon affirmed. Foland v. Jackson
County, 311 Or 167, 807 P2d 801 (1991). In its opinion, the Supreme Court
provided analysis regarding comprehensive plan amendments and opined that
once an amendment to an acknowledged plan is itself acknowledged, it is
“insulated from scrutiny for goal compliance[.]” Id. at 179. The Supreme Court
held that changes to the destination resort map using the refinement clause were
allowed because the refinement clause was acknowledged and therefore no
longer subject to review. On that basis, the Supreme Court held that “the county
is not bound by its original map of ‘Areas Excluded from the Goal 8 Resort
Siting Process” and may adopt an amended map of eligible lands. Id. at 181.
Notably, both the Court of Appeals and the Supreme Court still relied on
the destination resort maps – which had been updated as part of the application
to prove eligibility. Nothing in the case or its disposition support Lipscomb’s
argument that the existing and acknowledged map cannot or should not be
relied upon, or that the map must or even may be revisited for each and every
subsequent phase of destination resort development.
LUBA’s order here is consistent with both the statute and the Foland
decisions. The statute is clear. Siting eligibility is determined by inclusion on
the relevant map. Thornburgh is included in the County’s map. LUBA Rec 166.
26
This assignment of error is properly denied.
CONCLUSION
LUBA’s order is well-reasoned and correct. This court should affirm it.
DATED: August 12, 2021.
SCHWABE, WILLIAMSON & WYATT, P.C.
By: s/ J. Kenneth Katzaroff J. Kenneth Katzaroff, OSB #143550 Schwabe, Williamson & Wyatt, P.C. 1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206-622-1711
Email: KKatzaroff@schwabe.com
Of Attorneys for Respondent Kameron L. DeLashmutt
1
PDX\135849\262760\JKKA\31502048.1
CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS
I certify that: (1) this brief complies with the word-count limitation in
ORAP 5.05(2)(b); and (2) the word count of this brief—as described in
ORAP 5.05(2)(a)—is 5,732 words.
I certify that the size and type in this brief is not smaller than 14 point for
both the text of the brief and footnotes as required by ORAP 5.05(4)(f).
DATED this 12th day of August, 2021.
Respectfully submitted,
SCHWABE, WILLIAMSON & WYATT, P.C.
By: s/ J. Kenneth Katzaroff Kenneth Katzaroff, OSB #143550
Email: kkatzaroff@schwabe.com
Of Attorneys for Respondent
Kameron K. Delashmutt
2
PDX\135849\262760\JKKA\31502048.1
CERTIFICATE OF FILING AND SERVICE
I certify that on August 12, 2021, I filed this RESPONDENT
KAMERON L. DELASHMUTT’S ANSWERING BRIEF with the State Court
Administrator by the Oregon Judicial Department’s Appellate eFiling system. I
further certify that I serve this RESPONDENT KAMERON L.
DELASHMUTT’S ANSWERING BRIEF on the following parties by the
Oregon Judicial Department’s Appellate eFiling system (with courtesy copy by
e-mail):
Jeffrey L. Kleinman, OSB #743726 Email: KleinmanJL@aol.com 1207 SW Sixth Avenue Portland, OR 97204 Telephone: 503-248-0808
Attorney for Petitioner
Annunziata Gould
Paul J. Lipscomb, OSB #752301 Email: judgelipscomb@gmail.com PO Box 579 Sisters, OR 97759 Telephone: 503-551-7272
Attorney for Petitioner
Paul J Lipscomb
David Adam Smith, OSB #170317
Email: adam.smith@deschutes.org
Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Telephone: 541-388-6593
Attorney for Respondent Deschutes
County
3
PDX\135849\262760\JKKA\31502048.1
SCHWABE, WILLIAMSON & WYATT, P.C.
By: s/ J. Kenneth Katzaroff
Kenneth Katzaroff, OSB #143550
Email: KKatzaroff@schwabe.com
Schwabe, Williamson & Wyatt, P.C.
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010 Telephone: 206-622-1711
Attorney for Respondent Kameron
K. Delashmutt
11/2/21, 11:24 AM Permit: G 17036 *
https://apps.wrd.state.or.us/apps/wr/wrinfo/wr_details.aspx?snp_id=175658 1/2
Oregon Water Resources Department
Water Rights Information Query Permit: G 17036 * Main Help
Return Contact Us
Contact Information (Click to Collapse...)
Contact information
OWNER:
PINNACLE UTILITIES LLC
2447 NW CANYON DR
REDMOND, OR 97756
Prior Contact information
OWNER:
THORNBURGH UTILITY GROUP LLC
2447 NW CANYON DR
REDMOND, OR 97756
Processing History (Click to Collapse...)
Application: G 16385
Permit: G 17036 document , paper map
Signature: 4/3/2013
Process Step Date Completed Result Completed By
Extension Application Received 4/2/2018 JEFFREY PIERCEA
Completion Date [C Date]4/3/2018
Extension Comment Period Ends 5/3/2018 JEFFREY PIERCEA
Extension PFO 315 Issued 5/8/2018 Propose to Deny JEFFREY PIERCEA
Extension PFO 315 Issued 5/22/2018 Withdrawn JEFFREY PIERCEA
Extension PFO 315 Issued 6/5/2018 Propose to Approve JEFFREY PIERCEA
Extension PFO Protest Period Ends 6/22/2018 Propose to Deny JEFFREY PIERCEA
Extension PFO Protest Period Ends 7/20/2018 Propose to Approve JEFFREY PIERCEA
Extension FO Issued 10/26/2018 Approved JEFFREY PIERCEA
Extension FO Issued 1/31/2019 Withdrawn JEFFREY PIERCEA
WMCP FO Issued 11/24/2020 KERRI COPE
WMCP FO Issued 3/9/2021 Withdrawn KERRI COPE
WMCP Progress Report Due 11/25/2025 KERRI COPE
WMCP Due Date (WMCP FO)5/25/2030 KERRI COPE
WMCP In Effect Until 11/25/2030 KERRI COPE
Order(s)
Order Origin Volume-Page Signature Description
Special 109-810 10/26/2018 APPLICATION FOR EXTENSION OF TIME G-16385
Special 118-117 11/24/2020 APPROVING WMCP FOR PINNACLE UTILITIES, LL
Special 118-673 3/9/2021 WMCP WITHDRAWL OF FINAL ORDER DESCHUTECOUNTY, PINNACLE UTILITIES, LLC
View right with Web Mapping
View Places of Use from Water Rights in the Same Area
View Reported Water Use
Water Right Information (Click to Collapse...)
Status: Non-Cancelled
County: Deschutes
File Folder Location: Salem
Watermaster District: 11
Scanned Documents (Click to Expand...)
Point(s) of Diversion (Click to Collapse...)
POD 1 - A WELL > DESCHUTES RIVER (View Groundwater Site PROP0000019)
POD 2 - A WELL > BUCKHORN CANYON (View Groundwater Site PROP0000022)
POD 3 - A WELL > BUCKHORN CANYON (View Groundwater Site PROP0000023)
POD 4 - A WELL > BUCKHORN CANYON (View Groundwater Site PROP0000018)
POD 5 - A WELL > BUCKHORN CANYON (View Groundwater Site PROP0000020)
POD 6 - A WELL > DEEP CANYON (View Groundwater Site PROP0000021)
Place(s) of Use (Click to Collapse...)
Add TRS grouping
Use - QUASI-MUNICIPAL USES
(Primary); Priority Date: 2/9/2005
Water Right Genealogy (Click to Collapse...)
App: G 16385
Permit: G 17009 CN
Permit: G 17036 *
View Water Rights in same Family Report Errors with Water Right Data
EXHIBIT 6: Jeremy Giffin Email 12124119 I
Cynthia Smidt
From:
Sent:
To:
Cc:
Subject:
IEXTERNAL EMAIL]
GIFFIN Jeremy T * WRD <Jeremy.T.Giffin@oregon.gov>
Tuesday, December 24,2019 9:21 AM
Cynthia Smidt
GORMAN Kyle G * WRD; NASHEM William D * WRD
File247-19-000881-5P (Central Land and Cattle Company, LLC)
Cynthia,
The applicants have an active permit (G-17035) for a full build out rate of 9.28 CFS and 2,129.O AF of water use for the
resort. The applicant will need to mitigate for the consumptive use of the permit at several previously determined
increments as shown in their incremental mitigation plan submitted to the Oregon Water Resources Department. For
2019 they were required to have 3.6 mitigation credits purchased for the first increment, which they provided. For years
2O2O-2O24 they are required to provide 24.9 mitigation credits which they still have time to purchase, either through
temporary credits or permanent credits, lf at any time we find the applicant to be appropriating more water than is
allowed per the mitigation plan we will regulate accordingly.
As of the comment period the applicant is in compliance on their water usage and mitigation plan.
Jeremy Giffin
Deschutes Basin Watermaster District 11
s41-306-6885
1
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Janet E. Neuman
janet.neuman@tonkon.com
503.802.5722 direct
503.221.1440 main
July 8, 2020
VIA EMAIL: william.groves@deschutes.org
William Groves
Deschutes County Board of County Commissioners
1300 NW Wall St
Bend, OR 97703
Re: Application 247-19-000881-SP/Thornburgh Resort/Rebuttal
Dear Commissioners Adair, DeBone, and Henderson:
I am water rights counsel for Mr. Kameron DeLashmutt, Pinnacle Utilities, LLC,
and Central Land & Cattle Company, LLC, the Applicant in the above-referenced
file ("Applicant"). I am submitting this letter on my clients' behalf during the
rebuttal period for this matter. This letter addresses only water issues; Mr.
DeLashmutt and his land use counsel, Ms. Fancher, will provide additional rebuttal
material.
1. Permit G-17036 is currently valid.
Appellant Gould continues to argue that Applicant's water rights permit G-17036
"has expired." Gould 7-1-2020 Submission on Water Use and Availability, from
Karl Anuta ("Gould/Anuta"), at 2. That is not correct. Permits do not expire
automatically. Crucially, Mr. DeLashmutt/Pinnacle Utilities filed an application
for extension of the permit in April of 2018 prior to the expiration date, thereby
tolling the permit's expiration. See Exhibit H-4, OWRD Water Right Permit Query.
Even without any extension application, OWRD must take affirmative action to
cancel the permit under ORS 537.260(1) and ORS 537.410-537.450, including
providing notice and a hearing. OWRD has not done so here. Mr. Anuta's comment
that the permit "has not yet been cancelled" (Gould/Anuta, supra at 2; emphasis in
original) is beside the point, since OWRD could not initiate cancellation proceedings
in any event while the extension application is pending.
Ms. Gould's insistence that "no extension of that permit currently exists" because
OWRD withdrew its Final Order approving the extension is also misleading.
Gould/Anuta, id. The withdrawal of the Final Order did not operate as a denial of
the extension application—instead, its withdrawal leaves the Proposed Final Order
("PFO")—which proposed to approve the extension—as the currently applicable
OWRD decision, as Ms. Gould acknowledges. Id.; see also Applicant's Exhibit I
(PFO). Ms. Gould protested the PFO and the matter will be referred to a contested
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Page 2
case for resolution. Unless and until this process results in a final decision
overturning the PFO and denying an extension, Permit G-17036 remains in place,
as shown in the records of OWRD and confirmed on two occasions by OWRD staff in
this case. See Applicant's Exhibits O and 6 (Emails from Jeremy Giffin, OWRD).
Ms. Gould simply refuses to acknowledge OWRD's own statements about the status
of the permit.
None of the materials submitted by Ms. Gould during the open record period prove
otherwise. The June 25, 2020 email from Kyle Gorman, OWRD, to David Arnold
confirms the facts described above—that Pinnacle applied for an extension in April
of 2018 and that, due to the withdrawal of the Final Order, the operative pending
document is the June 5, 2018 PFO proposing to approve the extension; this PFO is
awaiting a contested case hearing on Ms. Gould's protest.1
Mr. Gorman's email also confirms that Permit G-17036 is in compliance with its
water quantity mitigation obligations to date and that further mitigation is only
required when pumping occurs. At no point does Mr. Gorman take issue with his
own agency's previous submissions to the County stating that Permit G-17036 is in
place and in good standing. He also clarifies that the only requirement for pumping
water under the Incremental Development Plan (IDP) is posting the mitigation
water the IDP requires.
2. The proof of applicant's water quantity and quality mitigation
is satisfactory, and not subject to collateral attack in the
proceedings on this Site Plan.
Appellants Gould, Central Oregon Land Watch ("COLW"), and others continue to
attack the sufficiency of Applicant's agreement to use Big Falls Ranch water for
mitigation of impacts to fish and wildlife, as well as quantity mitigation. First, this
represents a collateral attack because the adequacy of this agreement for
mitigation was determined when the FMP was approved. At this phase, all that is
required is for Applicant to update the status of his water right permit and
mitigation, which Applicant has done.
Even assuming for the purpose of argument that Applicant needed to make this
showing again, Appellants' claims fail. The main argument to date has been that
the contract is "secret" because only a memorandum of it has been provided and not
the whole document.
1 Mr. Gorman's email also states that Big Falls Ranch was allowed to change
its point of diversion from a surface point of diversion ("POD") to a groundwater
point of appropriation ("POA"), but that the change does not determine whether the
rights are surface water rights or groundwater rights.
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July 8, 2020
Page 3
As I stated in my August 9, 2019 letter to Mr. Ripper on the Tentative Plan:
"Pinnacle has a fully-executed, in-place agreement with Big Falls
Ranch to obtain water rights for the Thornburgh Resort Project, as
described in the recorded Memorandum of Agreement included in
Applicant's burden of proof. The amount of water that has been
secured from Big Falls considerably exceeds the amount needed for
the Phase A-1 Development. In addition, as part of its agreement
with Pinnacle, Big Falls has already removed the impoundment
from Deep Canyon Creek and ceased pumping any water from the
creek, thus allowing all of the cold spring water to flow directly to
the Deschutes River."
I assisted Mr. DeLashmutt in drafting his agreement with Big Falls Ranch and I
stand by this statement. There is nothing in the Code that entitles project
opponents to know the details of Mr. DeLashmutt's business deals—and certainly
nothing that entitles them to learn sensitive business or financial information
pertaining to the third parties in those transactions. Given the history of this
matter, the BOCC can surely appreciate the reluctance of third parties to be
dragged into the fight and to have every aspect of their business and transactions
picked apart.2
Ms. Gould now also argues that because the water rights were included as security
for a loan that Applicant has "impaired its ability to obtain or control any water or
water rights for the project or this phase of it." Kleinman Memorandum, supra note
2, at 4. This issue was resolved in the CMP and FMP and is a collateral attack on
those prior approvals. At the time those approvals were granted, Applicant's
property was already posted as security for loans. Neither approval placed any
conditions on the Applicant regarding the use of the land or other assets to secure
loans. Further, this argument flies in the face of the obvious need for financing for
a project of this magnitude, and of standard business practices which routinely post
property as collateral for such financing. According to the agreement's terms,
Applicant is still in control of his property in the absence of default.
Appellants attempt to move the goal posts in another way regarding the Big Falls
Ranch water. They have argued before that Applicant and his attorneys falsely
stated that the impoundments on Deep Canyon Creek have been removed. The
2 For instance, Ms. Gould says that "mitigation water will not be available
after December 1 of this year" even though the quoted portion of the agreement
explicitly allows for extension. July 1, 2020 Memorandum from Jeffrey Kleinman to
Deschutes County Board of Commissioner on behalf of Ms. Gould
("Gould/Kleinman"), at 3-4.
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July 8, 2020
Page 4
record is clear that Big Falls Ranch has ceased impounding and diverting water
from the creek, and removed its water control head gates. Even opponents have so
admitted. See, e.g., David Arnold Email to William Groves, July 1, 2020, 2:36 PM,
at page 4 (acknowledging that head gate has been removed); Exhibits 32 and 39,
submitted on July 1, 2020, by Mr. DeLashmutt (showing that opponent Sage
Dorsey's own photos prove that the head gate was removed). To the extent that
water continues to back up to some degree it is due to beaver activity. See, e.g.,
Applicant's Exhibits 32, 39, id., and Lind Email supra, at 2 (statement from Jeremy
Giffin that beavers had "reclaimed the dams").
Mr. Arnold also complains about the concrete abutments that are still in place in
Deep Canyon Creek, even though the head gate itself has been removed. Again,
these arguments are collateral attacks on the FMP and FWMP. LUBA has held
that monitoring the FWMP comes from the annual reporting that the plan requires,
not the approval process, See Exhibit G. More importantly, the actions taken to
date, to cease pumping from Deep Canyon Creek and to stop impounding the water,
are mitigation actions taken years in advance of when required to meet the no net
loss standard.
So now appellants argue that there is no proof of what the actual flow is from the
creek to the river. COLW Letter to BOCC, June 30, 2020; Yancy Lind Email to
William Groves, July 1, 2020, 2:52 PM. This new argument is also a collateral
attack on the FMP. Ms. Gould raised this issue during arguments on the efficacy of
the FWMP in the FMP proceedings. See Exhibit 25. Her claims failed. Similarly,
COLW could have raised the issue at that time as well. They cannot use the
current site plan process to make a belated argument on the FWMP/FMP and this
argument should not be credited.
Furthermore, the claim that stopping withdrawals from Deep Canyon Creek is
somehow not providing quantifiable mitigation ignores the fact that Big Falls
Ranch was previously permitted to divert 1,859.6 acre-feet of “wet” water from
Deep Canyon Creek during every irrigation season.3 It has ceased doing so,
removed its head gate, and instead is allowing all of that water to flow through the
head gate to the Deschutes River (interrupted only by the beavers). David Newton,
author of the FWMP, explained that this change provides the bulk of the required
mitigation for 100% of the pumping anticipated under the FWMP. See Exhibit Q,
Newton letter, September 25, 2018. Even though the mitigation needed for this site
plan is a mere fraction of the mitigation water already returned to Deep Canyon
3 Mr. Giffin, OWRD, told Mr. Lind that the landowner had been "ready,
willing, and able to pull the full water right." Lind Email, id., at page 2 (attaching
July 1, 2020, 9:08 AM email from Giffin to Lind).
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July 8, 2020
Page 5
Creek, the project opponents routinely dismiss it, or attempt to undermine its
value. See Exhibit AA, Mitigation Debit Table.
3. The Water Management and Conservation Plan does not
provide any basis for attacking the Site Plan.
Ms. Gould and Mr. Arnold seem to offer the Resort's Water Management and
Conservation Plan ("WMCP") for two purposes—to "prove" that no water use has
yet occurred, which Applicant does not dispute, and to try to focus attention on the
amount of water and mitigation that will be required during peak use at full
development of the resort, which is not pertinent to review of this Site Plan. The
relevant amounts of water use for this phase of development are shown in Exhibit
AA, previously submitted by Applicant with its application and attached here for
convenience. The water needed for this site plan is only a fraction of the amount
that Big Falls Ranch has already ceased diverting and allowed to remain in Deep
Canyon Creek, and it is a small part of the peak water needs that Mr. Anuta cites
on the first page of his 7/01/20 Submission that he states are “undisputed”. His
comments are misleading.
Mr. Arnold seems not to understand the timing of either the proposed water use or
the required mitigation, arguing that a final WMCP is required now and that full
mitigation must also be provided now. No mitigation is needed until the project
begins pumping water. This argument was also made by opponents during review
of the CMP. At that time, the BOCC determined that mitigation is not required
until OWRD requires it. That issue is resolved, yet it is raised again.
4. Conclusion.
To borrow a phrase from project opponents and Appellants, "the bottom line" is that
Applicant has provided all of the information required of it pertaining to the status
of its water right and mitigation in support of approval of the Site Plan.
Appellants' and others' arguments to the contrary recycle settled issues and
misstate the status of OWRD proceedings.
Sincerely,
s/ Janet E. Neuman
Janet E. Neuman
Senior Counsel
JEN/jw
035992/00001/11318685v1
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Table 1B. Comparison of Ag vs. Quasi Muni Uses
TABLE 1B MITIGATION AMOUNTS AG USAGE QUASI MUNI USE TOTAL USAGE DATA WHYCHUS DATA DESCHUTES DATA
Monthly Monthly Total Monthly Total Monthly Monthly BF Deschutes Whychus Monthly Monthly Stnd Irr Monthy Res Monthly Ag Monthy Monthy Total Use Whychus Deschute Month Ag Use COID Mit Mit Total Mit Total Mit Mit Golf Use Use Use Use QM % QM Use Ag + QM Difference Use Difference Use Difference
January 0.00% 0.00 0.00 0.00 ‐ ‐ ‐ ‐ 2.92% 11.32 11.32 11.32 0.50 0.50 10.81 10.81
February 0.00% 0.00 0.00 0.00 ‐ ‐ ‐ ‐ 4.17% 16.17 16.17 16.17 0.72 0.72 15.45 15.45
March 0.00% 0.00 0.00 0.00 0.00 0.00 ‐ 0.00 0.00 ‐ 5.83% 22.63 22.63 22.63 1.00 1.00 21.63 21.63
April 8.43% 43.75 70.52 114.27 8.93 123.20 54.35 9.86 17.36 81.57 6.67% 25.87 107.44 ‐15.76 4.77 ‐4.16 102.67 ‐11.60
May 1144.8877%% 7777.1199 112244.4411 220011.6600 1155.7766 221177.3366 9955.8899 1177.3399 3300.6633 114433.9922 88.3333%% 3322.3333 117766.2255 ‐4411.1111 77.8822 ‐77.9944 116688.4433 ‐3333.1177
June 18.31% 95.04 153.19 248.23 19.40 267.63 118.07 21.42 37.71 177.20 10.00% 38.80 216.00 ‐51.63 9.59 ‐9.82 206.41 ‐41.81
July 23.76% 123.38 198.86 322.24 25.19 347.43 153.28 27.80 48.95 230.03 16.67% 64.67 294.70 ‐52.73 13.08 ‐12.11 281.62 ‐40.62
August 18.35% 95.27 153.55 248.82 19.45 268.27 118.35 21.47 37.80 177.62 18.33% 71.13 248.76 ‐19.51 11.04 ‐8.41 237.72 ‐11.10
September 10.80% 56.05 90.34 146.39 11.44 157.83 69.63 12.63 22.24 104.50 11.67% 45.27 149.77 ‐8.06 6.65 ‐4.80 143.12 ‐3.27
October 5 49% 28 51 45 95 74 45 5 82 80 27 35 41 6 42 11 31 53 15 8 33% 32 33 85 48 5 21 3 79 ‐2 03 81 69 7 24
November 0.00% 0.00 0.00 0.00 0.00 0.00 ‐ 0.00 0.00 ‐ 3.33% 12.93 12.93 12.93 0.57 0.57 12.36 12.36
December 0.00% 0.00 0.00 0.00 0.00 0.00 ‐ ‐ ‐ 3.75% 14.55 14.55 14.55 0.65 0.65 13.90 13.90
Total 100.00% 519.18 836.82 1356.00 106.00 1462.00 100.00% 388.00 1356.00 ‐106.00 60.19 ‐45.81
5FIGUREDESIGNED BY:DRAWN BY:DATE:PROJECT NO.1130-101Oct 2017Earth, Water and Rock SpecialistsPh: 541 504-9960 Fax: 541 504-9961Thornburgh ResortDeschutes County, OregonS. SchenckD. NewtonNet Irrigation RequirementsWhychus CreekThornburgh Resort - Deschutes County, Oregon