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2006-934-Minutes for Meeting August 23,2005 Recorded 9/21/2006
D ESCHUTES COUNTY OFFICIAL RECORDS ri nn NANCY BLANKENSHIP, COMMISSIONERS' JOURNALNTY CLERK ICJ ~V{~6.934 111111111 I11111111111I I ~l 111 1111 09/21/2006 09:46:53 AM 2006-834 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244: Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora MINUTES OF PUBLIC HEARING DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, AUGUST 23, 2005 Commissioners' Meeting Room - Administration Building - 1130 NW Harriman St., Bend Present were Commissioners Tom De Wolf, Michael M. Daly and Dennis R. Luke. Also present were Laurie Craghead, Legal Counsel; Paul Blikstad and Catherine Morrow, Community Development Department; media representative Chris Barker of The Bulletin; and approximately 12 other citizens. The purpose of the meeting was to conduct a de novo hearing requested by the applicant (Ron Robinson, 4R Equipment) on application numbers PA-04-8 and ZC-04-6. Chair Tom DeWolf opened the meeting at 9:00 a.m. Chair DeWolf read the opening statement (a copy is attached as Exhibit A) No Commissioners expressed bias, personal interest or prejudgment on this issue, and there were no challenges as to bias, personal interest or prejudgment from the public. At this time Chair De Wolf opened the public hearing. COMMISSIONER LUKE: If there is a significant amount of material to qualify the site on our map, should there be a mining site there. (The Board discussed various locations in the County and if rock was located there, would it be required to be put on our inventory.) LAURIE CRAGHEAD: I would need to do more research but yes, it would have to be on our inventory. The Board would have to decide on the conflicting uses to be allowed. Public Hearing regarding Millican valley - Surface Mining Tuesday, August 23, 2005 Page 1 of 61 Pages LUKE: Is it possible to break up the two issues? CRAGHEAD: It is up to the Boards digression on how they want to break up the hearing. LUKE: If there is any contention with the estimate, then do that separate. COMMISSIONER DALY: Before any rock from the Fairgrounds would be put on our inventory, you would have to do an extensive study on quality. CRAGHEAD: If it is not determined that rock is there, then you don't have to put it on the inventory. LUKE: Not only is material there, but it is of high quality. There is plenty of rock at the Landfill but it does not meet ODOT specks. At this time Paul Blikstad gave a brief summary of the Staff Report for the Board and the audience. (See attached Staff Report marked as Exhibit B) PAUL BLIKSTAD: As you can see from just today's submittals, in addition to what is already in the file, this is a very important issue. Obviously we have some very informed participants. In this proceeding you have received a notebook, a letter from Arlene Spencer, a letter from Paul Claeyssens with Heritage Group NW, and a letter from Mary Ann Kruse and Allen Grogan. DALY: Are these letters in here? DEWOLF: That we have not received? BLIKSTAD: I did give you copies but they were not part of the record before the hearings officer. Additionally the applicant's response to the hearings officer's recommendation was just received yesterday. Public Hearing regarding Millican valley - Surface Mining Tuesday, August 23, 2005 Page 2 of 61 Pages LUKE: In that response, there is a graft in there about blasting guidelines. If you were an engineer you would probably understand all of this very clearly but somewhere along the line I would like someone to tell me what this graft is. BLIKSTAD: The Board as well as the public has the opportunity to review anything submitted into the record at the prior proceedings. CRAGHEAD: And that is officially placed before the Board as part of the record so you can review that. DEWOLF: It has been. CRAGHEAD: Right. BLIKSTAD: We also received this packet of information from Tammy Walker. That was also received this morning. LUKE: I have a question. I spent a lot of time out in that area, my family and I really enjoy that area and different parts of it out there. Unless there were some pretty big thunder heads around and a chance of a pretty good downpour, I did not feel that I was going to get flooded out. I notice this is in a flood plain. Very clearly out there you can tell, during those types of storms, where the water flows. I any of that in this 385 acres? BLIKSTAD: The flood plain zone does exist within the LUKE: I know it is in the flood plain, I am asking if any of it floods. Perhaps the applicant can answer. I understand that it used to be a lake and I understand how the canyon was formed and am very familiar with that area out there. Typically you do not get a lot of standing water out there except when it does rain very hard and it creates the canyons and the little wash outs. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 3 of 61 Pages BLIKSTAD: I think we can have the applicant or the adjoining property owners testify to that. DEWOLF: Alright, Bob. My understanding is you thought you would need a maximum of an hour. BOB LOVLIEN: I can't imagine we would take an hour. If you want to put a limit that would be fine, I just ask to reserve some time for rebuttal in that hour. We will let through this a quickly as we can. DEWOLF: What we have scheduled is a couple of hours which we can go over, but want to make sure we can all get to lunch at least. LOVLIEN: We can work within that time frame. For the record, my name is Bob Lovlien representing the applicant. I may slip in and call this Jack Robinson and Sons rather than 4R but it is the same group. What I would like to do to begin with is just to orientate you to where this is and to explain a couple of exhibits that we have up here. What we have here are just aerial photographs. There are two aerial photographs that would fit just like so and it is not that hard to align where these are. What I wanted to point out is, this is the Spencer Wells Road here (pointing to maps.) LUKE: This is the cinder storage right along the highway? LOVLIEN: Right. This would be the area, the property we are talking about here. This orientates you to where Millican is and you can see the off road tracks in the Millican area and the shooting range. These are 1 inch is 2,000 feet. LUKE: The site is east of the paved road? LOVLIEN: Right, the site is east of the paved road. So what we have back here... rubric nearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 4 of 61 Pages CRAGHEAD: Bob, would you take the microphone with you. LOVLIEN: We tried to get transcripts of the 1St public hearing and there was technical failure so we were not able to get transcripts of the 1St hearing. There is a transcript of the 2nd public hearing if you are interested. This exhibit shows the relative distances. We have measured the distances from the edge of the mining site itself. There is a...what is called a shelter over here, a dug out area with a roof. It is not used except very sparingly for recreation purposes. This shows the distance from the mining site to the pictographs that you will hear about today. It shows the distance to the Coyote Well, which is 2500 feet and the distance to the Walker residence which 3469 feet. Just to give you an idea of the distances we are talking about. And again we are measuring them from the closest area where mining operations would occur on the property. LUKE: Your property line crosses the highway and you are not asking to do anything on that side? LOVLIEN: Nothing on this side. LUKE: The property line comes down and jogs over. DEWOLF: Do you know how far you are from Pine Mountain? LOVLIEN: Six and a half miles. We are 3.8 miles to the Nash ranch which is to the south. We measured that to the center of the pit. Over here (again showing the maps), again just to help orient, is a conceptual master plan that we have prepared. This shows the set back from Highway 20 of 600 feet. It shows the phasing that is contemplated for the project. That is done in three phases and it shows where there will be stockpile areas that will be initially used. Once the pit is opened up the actual stockpiles themselves will be brought into the excavated areas so it will be below grade to the best extent we can. This rubric Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 5 of 61 Pages just gives you an idea of the phasing that is proposed and the setbacks that are being maintained around the property. A cite plan has not yet been applied for. A cite plan will have to be applied for which will be of even more detail in terms of how this will operate. This shows the typical mining stage size. This would be the active mining size during any one year of operation. It is not where you open up the whole thing; you do it cell by cell as they move through the project. DEWOLF: How large is a cell in terms of acres. LOVLIEN: They estimate about 3 acres is what would be typical. DEWOLF: Is a single cell? LOVLIEN: Yes. DEWOLF: So how many years, if this were to be approved... Is this like 50 years, a hundred years? LOVLIEN: It is hard to tell with the exponential growth we are experiencing in this industry, it is real hard to tell. Probably 40 to 50 years is what they would project. LUKE: Bob, while you're walking back, the question about water flow through here... LOVLIEN: 1 was going to get to that, well, I will just answer that now. We do know where the flood plain exists. There is evidence in the record that shows where they see that flood plain area going through the project and none of the phasing or mining area will occur within that actual draw that is very apparent on the property. LUKE: The draw just funnels the water off the hills? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 6 of 61 Pages LOVLIEN: Yes, it is not very deep. The mining operation will not be part of that. I agree with the hearings officer that this is to be analyzed under the Oregon Administrative Rules, in particular, Goal 5 as it relates to aggregate mining resources. As part of the Goal 5 analysis the first issue as was identified by Commissioner Luke, was the issue of quantity and quality. There had not been any evidence or testimony that disputed the reports that we have submitted. Andy Seamen's has submitted an extensive report on the quality and quantity of material at this particular site. If you read that report, that included actually going out there and drilling on several transects throughout the property to make sure and measure the depth of this particular material. They did a lot of work in establishing 17 million cubic yards. We feel very confident, in fact we did not have Andy Seamen's come today, and we thought his report stood on its own. The hearings officer acknowledged that his report and testimony did establish a significant resource at this particular site. Commissioner Daly mentioned that maybe there is a lot of rock in this particular area. Ron Robinson is going to testify that he spends an inordinate amount of time trying to find rock. This happens to be a unique lava flow that is through this area that created this. It may actually be part of the same flow that is underneath their pit in Alfalfa (east of Alfalfa), so it is unique. As you may or may not know, they had property just on the other side of Horse Butte adjacent to the old highway in there that they thought was going to be a significant resource. That rock has turned out to not be able to meet ODOT specks. They don't feel that it is economically feasible to open that up because the rock is not of the quality they need to have to be able to utilize it as ODOT quality material. Also, significant quantities of this material is still being imported into Deschutes County, primarily from Crook County. A significant amount of rock is still coming in from the O'Neil Junction Area, the Three Springs Ranch which is just this side of Prineville, and the 4R site east of Alfalfa. So most of this material is still coming in... the O'Neil Junction is actually 28 miles from the center of Bend and that's where Hooker Creeks primary source is, Hap Taylor and Sons primary source is, as well as the pit operated by 4R in that same area. They are importing that material that kind of distance. This may seem a long ways out, this pit is only 21 miles from the center of the City of Bend, and maybe even a lot closer to the east side of Bend, which will be a primary utilization area. So, the haul distances are actually shorter than what they are experiencing from some of the major sources of this material. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 7 of 61 Pages The industry also is experiencing exponential growth as would be obvious as what we have seen in Central Oregon. Just to give you an idea... Jack Robinson and Sons has been around for, I think 58 years, so they are not new to this business. Between 2000 and 2004, their tonnage of raw material requirements actually doubled. Already in 2005 they are exceeding what they used in 2004, we are talking 25% growth a year for this particular material. This growth is in spite of the fact that they are trying to use more reclaimed rock, for instance the Century Pit as well as a lot more onsite crushing is being utilized on various construction sites. The exponential growth is still there and yet they are not able to find new sources of quality rock that they can use. We feel that the quantity and quality issue has been resolved. Actually, the Administrative Rules have a very low threshold for quantity and they do identify the appropriate ODOT rules that need to be addressed. Both of those are addressed by Andy Seamen's in his geotechnical report that was submitted. The second area then is the County is required to establish an impact area. The Administrative Rules, under Goal 5, are quite specific that it is a 1500 foot impact area. Deschutes County has a Service Mining Impact Area Zone that was established before the new Administrative Rules and that impact area is a half a mile. I think both of those numbers are important when you look at the distances to the Walker residence, which would be the nearest approved land use in the area and probably within a couple of miles. The hearings officer chose to expand that impact area dramatically to take into account Pine Mountain Observatory, the agriculture use to the south, which would be the Nash Ranch, and even included part of Horse Ridge. The issue for the County Commission is whether there has been identified a quote "significant potential conflict" closed quote beyond even the 1055 foot or half mile rule that would justify and expansion of that particular impact area. We have shown graphically the distances to the nearest residence and I think that is an issue that the County Commissioners need to identify. Once you have established the appropriate impact area the next issue is the identification of conflicts with the proposed mining and processing activities. There is extensive evidence in the record about impacts to wildlife and there are extensive reports and surveys done and consultation with not only ODFW but also BLM regarding impacts on wildlife. Those appear, at least from the agency standpoint, to have been resolved. There is an extensive archeological survey. The entire site was done to determine whether there was any archeological sites on the property and it was determined that there was not an archeological site although, I would encourage you to read it because historically it is very interesting in terms of the history of that particular area. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 8 of 61 Pages LUKE: They did not find any old land mines out there, did they? LOVLIEN: No, but they did find other interesting things including some military remnants, but no land mines. They did trans-sects on the property and inspected the whole thing to make sure there was not an archeological site that needed to be reviewed or protected. Scot Ferguson, who is a traffic engineer, did a traffic impact analysis primarily on the intersection of Spencer Wells Road and the Highway. There is also a more recent letter from ODOT regarding that and I think the aerial photographs that I have provided you show good examples of the site distances that are available on that particular intersection. At least from their professional opinions, it was not a traffic issue. The nearest agriculture use that we can identify is the Nash Ranch which is about 3.8 miles from the center of this particular site. There were no other Goal 5 resources that were identified and I think the hearings officers report confirmed that. I have addressed the issue of the flood plain and how that will operate with respect to the site plan itself. LUKE: Bob, is that ...the cinder pile is very clear from the highway. Is that just a stock pile? LOVLIEN: Yes. LUKE: It is just a stock pile site. LOVLIEN: Water Oregon Water Resources Department has a letter in new material that was submitted yesterday and said the use of this water right will not have an impact on the aquifer in the Millican Valley. So, this leaves the question of noise, dust and vibration. We have had the Scott Wallace of Kleinfelder, we have hired him to review all of the material that has been prepared and submitted to again, give his opinion of what he thinks the impact will be of noise, dust and vibration. I would encourage you to read the report that was prepared with the respect to blasting because they adopted a measure for this site against the standard that has been Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 9 of 61 Pages developed in Europe. That standard is used to protect some of the most valuable buildings in our civilization. That is probably the strictest standard that they could identify for the testing out there to determine what affects vibration would have from the blasting. I will ask Scott Wallace in a minute to give his opinion of this. I also think the best evidence of how these operations can operate would be the operations currently being run by Jack Robinson and Sons. They operate the Century Pit, which is at the front door of Broken Top, they operate the O'Neil Junction site and the O'Neil Valley is also aesthetically a valuable resource. We have had a lot of interaction and cooperation with their neighbors there. They operate the Fireman's Pond Pit which is right in the middle of Redmond, right adjacent to Fireman's Pond, as well as the Alfalfa Pit east of town. The last part of the Goal 5 analysis will be if you identify if there are some conflicting uses within whatever impact area you determine to be appropriate. Are there reasonable and practical measures that can minimize these conflicts? What we have proposed and talked about is one. We have acquired an on site water supply that can be used to sprinkle the stock pile areas and to control dust during the crushing operations. There will be paved roads from the stock pile area to Spencer Wells Road. Spencer Wells Road is a paved road to US Highway 20. As soon as the operations have started and the mining operations opened up, they will be moving the operations below grade. By moving that operation below grade, it will have a significant impact on noise emanating from this particular site as well as the ability to put the stock piles themselves below grade. The idea is they want to bring all of the operations below grade as they open up the 1 st phase and then the 2nd phase. They operate under extensive State and Federal noise and dust standards, Scott Wallace will talk about that. They will limit their crushing activities to no more than 3 months in any one calendar year. The blasting will probably only be done once a year to blast enough material to satisfy the crushing requirements as we have outlined in that. Then there are other issues like hours of operation that will be observed for this. We believe that there are a number of reasonable and practical measures that the applicant has identified to minimize whatever conflicts have been identified within this impact area. We are not pretending that this is a clean industry, it is going to be a surface mining operation. Ron is going to be able to testify that this is their business, they know how to do it, and the entire industry is doing a much better job of this than they did even 10 years ago in the area. With that I am going to go ahead and have Scott Walters ...yes sir. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 10 of 61 Pages LUKE: Does your geo-tech report talk about the depth? What is the depth of the rock? LOVLIEN: I thought it was 75 feet but it is 100 feet. They are going to be able to go down a significant distance. If you want to see an example of how that works, the Alfalfa Pit that they operate east of Alfalfa, operates exactly that same way. The Century Pit is actually quite a bit deeper than that, so it is a little different. They are not taking off a rim rock or a face to be able to do this; they will actually go down, up to 100 feet. LUKE: Where is the Alfalfa operation? LOVLIEN: About 8 miles east of Alfalfa. LUKE: On the Reservoir Road? LOVLIEN: Yes. DALY: On that new Millican Road right? SCOTT WALLACE: For the record, my name is Scott Wallace. I am the Office Manager for Kleinfelder, Inc. Kleinfelder is a multi disciplinary geotechnical, geological, environmental engineering and construction services firm. I have been employed with Kleinfelder for over 18 years and started practice for our firm in Bend about 8 years ago. I earned BS and MS degrees in geology and I am registered in Oregon and Washington as a geologist, engineering geologist, hydro geologist and a water right examiner. In addition to my personal experience with surface mining operations around Central Oregon, I was asked to review the technical data that has been complied for this hearing and provide my professional opinion regarding the potential impacts of surface mining at the Spencer Wells site in eastern Deschutes County. rublic Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 11 of 61 Pages There are a number of issues to be considered with this application and those that I have been asked to comment on include noise, dust and vibration. With regards to noise, I have observed surface mining and crushing operations at several operations in Central Oregon including 4R and Jack Robinson & Sons operations in Alfalfa and off of Century Drive within the city limits of Bend. These operations and others are permitted by the Oregon Division of Geology and Mineral Industries and also include provisions with regards to noise, which the operator must meet to operate the facility. It is my understanding that these facilities operate in accordance with applicable noise standards. In the case of the Century pit, they have not resulted in any complaints, to my knowledge, from adjacent property owners, which include both businesses and residential occupants within a quarter of a mile of this operation. Noise generally travels along the line of site. Barriers, such as berms or below grade operations, help to minimize the noise exposure on surrounding areas. Based upon the application, following initial start up, the proposed mining operation will be conducted below surface grade, in the depression created by removal of the rock materials. Site specific noise data from Jack Robinson's currently operating Alfalfa pit was submitted during a previous hearing on this subject. The crushing operation at the Alfalfa pit employs the same equipment and technology set forth in this application being considered today. This data, which you have copies of, indicates that at a distance of 1500 feet from the operating crusher, the noise, while audible at 42.2 decimals (which is based upon humans range of perception) is equivalent to the ambient noise level of the desert, which was also recorded out near the Spencer Wells site. It was also compared to a semi truck at a distance of about'/4 mile away traveling at roughly 55 - 60 miles an hour, which was recorded at 50.5 decimals adjacent to the northern boundary of the Spencer Wells site. Other uses in the area include a rifle range and off road vehicle trails, both of which admit noise at or above the levels proposed by the surface mining operation at the property boundaries. With regards to dust, a byproduct of surface mining is dust and there is no getting around that. That is not unlike on and off road vehicle traffic on unpaved roads and trails throughout much of Central Oregon and the Millican Valley. I have witnessed crushing operations at a number of Robinson and 4R operations, including the Century pit, which I would characterize as being located in a sensitive area with private residences and commercial development right adjacent to the pit, within the City limits. LUKE: And the County landfill? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 12 of 61 Pages WALLACE: That too. My operations indicate that through the use of water and other work practices that are typically in practice by 4R employee's, that the crusher does not appear to omit dust above levels of other nearby activities, such as new construction site grading or automobile and other truck traffic in the area. LUKE: When is that water required to be on? Is it sprinkled occasionally, is it going while the crusher is going, do you know? WALLACE: When I visited the site I have seen it applied periodically, depending on the type of material that is running through the jaw at the time. Typically there are a couple of areas of a crusher where most of the emissions are generated so the water streams are applied and concentrated in those areas. The Century pit and Jack Robinson & Sons other crushers operate under a general air contaminate discharge permit that is issued for rock crushers by the Oregon Department of Environmental Quality. They must comply with the standards and limits set forth in these permits for visible emissions, fugitive emissions, particulate mater fall out, nuisance conditions, odor, and specifically the type of fuel they are allowed to use. The air contaminate discharge permits require annual reporting which include a complaint investigation and resolution log for all air pollution concerns associated with the facility. In reviewing these, I am unaware of any current complaints or investigations underway by DEQ with regards to air pollution from surface mining and crushing operations at Jack Robinson & Sons Century pit. Vibrations... In order to evaluate potential impacts of the proposed Spencer Wells operation on adjacent land and structures, Jack Robinson & Sons commissioned a vibration study in April of 2005 by Apollo Geophysics Corporation of Bellingham, Washington, of which you have a copy of their report. The data was submitted during a previous hearing. As an earth scientist I am familiar with the characteristics of ground motion and vibration through soil and rock materials and the field methods that are employed in measuring and collecting this type of test data. I reviewed Apollo's vibration intensity study and concur with the conclusions that vibration intensities at the critical structures, which are the pectroglyph's located north of US Highway 20, will be negligible as a result of the blasting and mining operations as this proposed Spencer Wells site. In the year 2000, our company was also involved in the development of the Bend Bulletin Newspaper complex located in southwest Bend at the intersection of rublic Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 13 of 61 Pages Chandler and Mt. Washington Drive. This site is located less than five hundred feet from Jack Robinson's currently operating Century pit. It is constructed on volcanic bed rock. The Bulletin complex includes a state of the art printing press, which is responsible for the daily newspapers that we read each day, and that printing press operates under tolerances on the order of a magnitude of a thousandth of an inch. It would be adversely susceptible to any vibration or ground movement generated by adjacent activities including blasting or rock crushing and truck traffic. I have toured the facility with Bulletin operations personnel and specifically asked them if they have had any problems related to that. They responded that the printing press is operating within tolerances and they have not had any problems from off site vibration or ground movement issues. In conclusion, based on my technical review of the noise, dust and vibration data, in addition to my personal operations and the operational standards that the applicant will be required to meet, I have concluded that the proposed surface mine at Spencer Wells will not adversely affect the surrounding land uses with regards to dust, vibration, and noise outside the 1500 foot impact area. Bend and all of Deschutes County continues to grow rapidly. The demand for quality rock and building materials is enormous. The proposed Spencer Wells site will help to meet some of this demand for the foreseeable future and would also provide a viable supply for contractors of all sizes, not only Jack Robinson & Sons, for commercial and private uses. Smaller contractors without their own rock sources rely on suppliers like Jack Robinson & Sons and 4R in order to stay in business. Adding this proposed Spencer Wells site to the Counties inventory, of significant mineral and Ag resources will provide the materials necessary for continued growth and would also help to provide jobs and economic benefit to the citizens of Deschutes County. LUKE: Is your written testimony going to be part ...do you have extra copies of that? WALLACE: I do have some more, yes. LUKE: I would like to see one of those for questions later. DEWOLF: Thank you. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 14 of 61 Pages LUKE: Scott, may I ask you a question. When I was on the Natural Resources Committee in the Legislature we dealt a lot, mostly with valley rock, because almost anywhere along one of the major rivers over there you can find rock sources. It is just a matter of which one you want to excavate. The type of rock we are looking at here, how common is it? You talked about a lot of our stuff coming from Crook County. How common is this rock that meets ODOT specification? WALLACE: The type of rock that we are talking about is basalt. Basalt is pretty typical throughout Deschutes County. The primary source area is from Newberry Caldera east of Paulina Lake south of here. The geologist have actually documented up to 6 or 7 different flows that extend from Newberry on north into Jefferson County. I would say that basalt in general is a fairly common place material that you find in our area. Just driving around you see it in road cuts all over town. Now, with regards to durable or ODOT quality basalt, that becomes a little more of a site specific issue. You deal with vesicularity, the voids that are inside the basalt, and just the general chemistry that alters the durability and makeup of it. I would say that it is pretty widespread, it is very common, you find it across much of Deschutes County but durable ODOT grade material is obviously a little harder to find and limited as far as we know right now. LUKE: Thank you. DALY: Did I understand you correctly to say that the Bend Bulletin building is within 500 feet of the Century pit? WALLACE: Yes. DALY: And they have carried on blasting operations there? WALLACE: Yes, crushing operations. They recycle all the material that is brought in there and run it through their crusher. DALY: Crushing, but not blasting? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 15 of 61 Pages DEWOLF: There is no blasting at that site. WALLACE: There has been in the past hasn't there Ron? RON ROBINSON: No, we have years ago but not now. DALY: I just wanted to clarify that. DEWOLF: Any other questions. LUKE: No, just make sure you do that. WALLACE: Yes, happy to do that. ROBINSON: Good morning, for the record, I am Ron Robinson, I am the applicant. First off, I want to clarify the rock and the hardness and the durability issues. Typically the rock in Deschutes County gets discounted because of its hardness. The Fairgrounds rock was brought up earlier, that's in high 40's and 50's for an LA abrasion. To meet State spec, which is a designation the State gives for rock that has to meet paving specifications or trench backfill; it has to be 35 or less. For paving, 25 or less. LUKE: The higher number is a bad number? ROBINSON: Softer. This rock right in the rock pile next door here, from experience would probably be in the high 30's to low 40's. So this rock would not meet State spec either. That is why this source is so significant, is because it is a gigantic quantity but it is great quality. DEWOLF: What is the number out there? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 16 of 61 Pages ROBINSON: That rock is in the high teens, low 20's, really a great quality rock for Deschutes County standards. You all know what I do. You know what I do for Central Oregon. You know who we compete against. You know how competitive this industry is. For me as a company to still be competitive for the next 20 - 30 years, I need rock sources, so do all the small contractors around here. For all the building ...you can look around Deschutes County. Everywhere you look there is something going on. There is a gigantic need for rock and for quality rock products for the next 20 to 30 years. This is a significant source to keep me in business and to keep everybody competitive. I have spent a great deal of leisure time out in that area. There are all kinds of RV's, trails out there, forest service roads, gravel roads, there is dust, and there is nothing I can do about any of that. I do feel confident that I can control my world out there. I can keep the dust down in that pit; I can keep that pit operating out there. This is more of a survival tactic for me. You just don't go pick up a rock pit in six months. These things take planning, they take a lot of money, and these pits need to be big for me to be able to afford to put them in here. There are very expensive processes to go through. To get this pit developed and pave the roads, put the well in, put the pond in, this is a big expense. I need to have a large source to do this. There are not large sources of rock available. There is virtually rock all over Deschutes County but the majority of it is not hard enough. That is why this source is so significant for me and for our future here. So, I will be here for any other questions that you might have. Thank you. LUKE: Ron, I do have one for you. Again, it is in the flood plain and Bob mentioned that evidently there is a dry stream bed coming through there. How are you going to handle that? ROBINSON: This right here (pointing to map) is the low point of this property, right up against this next phase. This is where the course of water would run is right through there. We are not going to mine in that area. LUKE: What is that a Swale? ROBINSON: It is not real deep or prominent, but that is the actual low point. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 17 of 61 Pages LUKE: Between there and Millican I know that there are some wide ones. Some of that had to be from lava flow, some from the water. ROBINSON: I have never seen water on this property in that drainage area. LUKE: Ok, thank you. DEWOLF: Anything else, Bob? LOVLIEN: No, again, we would like to just reserve some rebuttal time. We have obviously voluminous amounts of material amounts in the record that supports our position. Again, I would just ask you to think about the area of impact that you think is important and whether or not there have been significant potential conflicts identified over and above the ones that we have identified. Address those with reasonable and practical methods to minimize the impacts on those... (Unintelligible word.) LUKE: We already have the aerials in the file? BLIKSTAD: We have one but I don't know that it covers... LOVLIEN: I would like to go ahead and have both of those put into the record. I think it is the best way to orient yourself in terms of the area. DEWOLF: Are there any other proponents that would like to speak in favor of this application this morning? Ok, not seeing any, we will now have the opportunity for anybody who is opposed to this application to come up and speak. You will need to come up and identify yourself for the record. LUKE: Is there a time limit? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 18 of 61 Pages DEWOLF: I won't place a time limit immediately; we will just see how it goes and just ask everybody to... Let's start this way. How many people would like to testify this morning? Could I see a show of hands? Five, ok. Are there any people that when I ask that question in another 20 minutes that are going to say oops, wait a second I might want to talk? There's the sixth. Ok, we are going to count on six people and if you all can keep it to 5 to 10 minutes roughly. The additional thing that will be important is to recognize that if one individual makes just a wonderful point, we actually get it, and it is in the testimony, you do not have to repeat that, you could say I agree with so and so, ok? LUKE: If you are already on there fine, if not when your testimony is done if you will fill it out, that would be great. (Referring to the sign up sheet - see attached marked as Exhibit C.) DEWOLF: Ok, we need your name for the record. JANET NASH: My name is Janet Nash. My husband and I live at 25700 Spencer Wells Road which is Evans Well Ranch, adjacent to the property. LUKE: Would you be south, east? NASH: South and east. I have testified at the previous two hearings and that information is in the record. I would remind the Commissioners that yes, the Millican Valley is to some people the middle of nowhere but there was a candidate for governor who also called Bend the middle of nowhere. LUKE: I enjoy it because it is the middle of nowhere and there are a lot fewer people out there. NASH: Yes, it is Deschutes County and it is my home, I appreciate that. You have asked about water, I do not know if now is the time for rebuttal. I have personal information; I have been there for 10 years. It is in my previous testimony that I have seen water running. The antelope were watering on that property last winter Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 19 of 61 Pages in standing water. The Dry River Canyon has actually run water in times of, not just rainfall, but snow melt is a big issue out there. We have a large pit behind our house that we use for loading large equipment. It is probably 20 feet deep. In times of snowfall and rapid snow melt, which does happen in that area, that 20 foot pit has filled with water. That is one of my concerns that I raised at previous hearings, is that if we have a big hole out there, it will fill with water. It does not just stay to the course of the Dry River Canyon. Any low spot and that is the lowest spot in the entire Millican Valley. The Millican Valley is an ancient lake bed and a giant bowl. DEWOLF: Are you talking about this spot in blue on this map or a different...? NASH: If they dig a pit that's 100 feet deep and if it is basalt rock, I don't care it is still surrounded by gardonious soil, it is going to fill with water. DEWOLF: I was just asking about... you just mentioned the 20 foot pit, what area are you referring to? NASH: On my ranch 3.8 miles south on the side of the valley. Not in a lake bed, not in a river bed. DEWOLF: Ok. NASH: Thank you for hearing this matter today. The previous two meetings were well attended with significant opposition to this project across the board. My husband and myself are opposed to this mine for numerous reasons you will hear today. I'll limit myself to the areas I am most familiar with and educated in, agriculture and wildlife. Horse Ridge sub zone has the most stringent EFU zoning in Deschutes County, 320 acres. Deschutes County stipulated this large acreage requirement to protect agricultural interests, primarily ranching in the Millican Valley. It is a large and valley suitable for livestock grazing. The subject parcel has been grazed in the last two years in rest rotational grazing system administered by the BLM. This Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 20 of 61 Pages particular parcel is adjacent to an allotment owned by L&K Ranches. It has not been previously fenced, so it was grazed as part of their allotment. When we first began grazing cattle in the Millican Valley in 1995 several of the neighboring ranches were vacant or for sale. This is not the case today. All of our neighboring ranches are occupied and in production. BLM maintains a waiting list of ranchers waiting for vacant allotments. Beef cattle is the second largest income producing agricultural commodity in Oregon. The current zoning configuration protects these ranches from development pressure. The large contiguous tracts of land these ranches provide are very important to wildlife habitat. The water they provide is crucial in the desert environment. Ranchers provide open spaces and quality food. The public wants open spaces and quality food. The recent decision by US Fish and Wildlife not to list the Sage Grouse as endangered was made in part by proactive work by State agencies and private land owners to enact a region wide conservation plan that entails four western states. A major part of this plan addresses habitat loss, fragmentation, and degradation of sage brush communities. This surface mine would be a direct contribution to that loss. The largest identified Sage Grouse lick in Deschutes County is a mile and a quarter away. Nesting sites have been mapped closer that that. Sage Grouse are highly sensitive to disturbance and will abandon traditional areas of use when disturbed. The introduction of a 485 acre strip mine would drastically alter the valley. It would no longer have the characteristics of exclusive farm use. Other mines would logically follow and Goal 5 would not be met. LUKE: What types of mines do you think will follow? NASH: Smaller parcels. If Robinson can find rock... There is obviously rock throughout Central Oregon. If there is a hot source in Millican Valley, other smaller producers are going to buy smaller pieces of land that can't be developed for residential because of the zoning configurations and go through the same process and open other smaller mines, is what I envision happening. Aside from the noise, dust and a degraded quality of life, I can see two other direct impacts to myself. When wildlife suffers, we as ranchers pay. Grazing is highly Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 21 of 61 Pages monitored, if Grouse or Antelope or any sensitive species decline, we face the consequences. Our grazing is restricted, our numbers are lessoned, and it is a direct economic impact to us. It has happened to us in the past. The cause does not matter, we pay. If industrial development gets a foothold in the valley, other development will follow. I see other small mines following. EFU zoning will be sacrificed in the path of progress. Our ranching operation and what it provides will be directly threatened. Mr. Robinson's expert witness did testify that Eastern Oregon is solid basalt from the California border to the Washington border. If this is the case, surely we can find a location with fewer conflicts to blast and mine. The Millican Valley site is simply the wrong place for this mine, there are too many conflicts. Many people are anxious to testify today to tell you why this is the wrong place for a strip mine. I will defer to their more expert testimony. I would like to enter my remarks from my the last two hearings into the record. DEWOLF: As well as what you have just read us this morning? NASH: Yes. DEWOLF: Wonderful. Thank you. LUKE: How big is your ranch? NASH: Deeded acreage is about 2,000. We have BLM and Forest Service permits and control about 60,000 acres. LUKE: Sixty, how many head are you running? NASH: Right now we run 250 mother cows. Our neighbors have a 700 yearling operation and L&K Ranch is in the neighborhood of 2,000 head of cattle. There are more in the valley. Thank you. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 22 of 61 Pages DEWOLF: Ok, who would like to go next? TAMMY WALKER: My name is Tammy Walker and I have submitted a lot of information into the record as you have probably noticed. I would first like to give you a letter from Doug DuPriest, an attorney that I have retained and there are copies for the record (Letter is in the Notebook submitted by Ms. Walker that is marked as Exhibit D.) Now if we have questions from what Mr. Robinson and his attorney testified to, we ask you, is that correct? DEWOLF: Yes, if you can just list your questions to us, we won't have the answer for them but their attorney, Mr. Lovlien will come up after all the opposition is done and answer questions that you have raised or rebut testimony that they disagree with. That is their opportunity to close this public hearing. So, if you ask the questions, I am sure Bob is writing them down to be able to respond to us. LUKE: As long as Bob is writing down questions, the one I am going to ask is what is the water table out there? WALKER: One of the questions I have is if they are going to be blasting once a year, how big of a shot is that? We are talking about 17 million cubic yards of available aggregate. They will be crushing a couple of times a year, or a couple months of the year, excuse me, and blasting once a year. I am just wondering how big of a blast that is. DEWOLF: That brings up a question in my mind and that is to define what that blasting is. Is it one gigantic bomb or is it a series over the course of several days of smaller less impactful... WALKER: The other question I have is... he talks about the Alfalfa pit. I believe that is in Crook County, not Deschutes County. The other question I had is how big is the jaw on that crusher? Because the bigger the jaw, the louder it is. I have prepared what I was going to say, I have put it in front of the notebook, and I have also submitted it to Paul for the record. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 23 of 61 Pages DEWOLF: This cover letter, no, excuse me, the August 23rd "Dear Board of Commissioners", 4 pages, correct? WALKER: Yeah. We have lived at that property for about 12 years, 13 years. My husband was born and raised in Bend. I have lived most of my life in Bend and ironically my husband is a superintendent of an asphalt plant and rock crushers. DEWOLF: Are you adjacent to this property? WALKER: I am right across the highway with the pictographs and Coyote Wells. DEWOLF: Thanks. WALKER: Ed Park was a previous owner of that place. So, some of my testimony, some of my experience, comes from the fact that my husband is involved in the business and has known Ron for a long time. Both of my boys are in the construction business. We do live at that address part of the year and my husband just recently took a position in Alaska. So, we are back and forth quite a bit. I would like to say that Mr. Robinson is a very nice man and this is not a personal attack on him in any way. Ms. Walker then read her letter to the Board. (See Letter inside the Notebook that is marked as Exhibit D.) LUKE: Did he (Steve George) say that or are you saying that (referring to a comment in section 1 of the letter saying that the proposed pit would have far reaching effects on the Antelope and Sage Grouse.) WALKER: No, that is in the letter. LUKE: He has said that this pit will have... Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 24 of 61 Pages WALKER: No, I am saying this pit... LUKE: That's what I asked. Ms. Walker continued reading her letter. LUKE: Before the first atomic blast (referring to isotopes in the water)? WALKER: Yes. DEWOLF: Can I just interrupt for a second? Paul, when the big study was done in this area several years ago on the entire aquifer in the Bend area, did that include this area? Do you know? BLIKSTAD: We would have to research that. I don't know the answer to that. LUKE: They were doing this to drainages of the river and this does not drain into the river unless it is very deep so it probably was not. BLIKSTAD: We can get an answer. DEWOLF: If we can get an answer to that, that would be worth knowing. DEWOLF: Our personal well is over 1250 feet deep and it is over 70 degrees when it gets to the surface. We pump it into a cistern to cool it off so we can use it. So there is a lot of activity out in that area. LUKE: That would be good in a green house to circulate in amongst your plants. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 25 of 61 Pages WALKER: Yes, it would (followed by laughter.) Ms. Walker began reading her letter again. WALKER: One of the pictures I have in my picture collection is of the subject's property when I was driving down Spencer Wells Road of Pepsi cans, can wrappers, and an open container of used grease, axel grease or something. There is some concern there with wildlife and leaving that kind of thing open. It is a landscape management corridor. (Comment made after reading section 6 of her letter referring to DEQ.) Ms. Walker continued reading. DEWOLF: Thank you, any questions? DALY: I have one. You mentioned when Robinson bought out Red Cloud and acquired a pit in Redmond; do you know where that pit is? WALKER: I do not. DALY: I think the pit you are referring to is a cinder pit. I don't think it is a rock pit, which is not anything close to this. WALKER: I don't know how many pits Mr. Robinson has but when I cited the McClain report, to me that was huge. There is enough rock to last the next 50 years, 20 times more aggregate. This is a very unique valley; we chose to live out there. I would not live in Broken Top, I would not live in La Pine, and I would not live in Sunriver. I like the desert, it is a great place to raise our kids and it is still a great place to have as home. Where our home sits up on the canyon wall, we are going to have a view of that rock crusher, even if it is in a pit. Rock crushers do destroy and upset the natural environment. Whether it is wildlife or the scenic highway, which it is in a landscape management corridor. I have some other information which I have put in here; I did meet Ray Hatton the other day at the library and talked with him. He wanted to be here today but he is busy promoting his new Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 26 of 61 Pages book on Portland weather. He copied a lot of material out of his book, The High Desert, and he did sign the front of it for me. I put that in your book so you did know that it did come from him. There are lots of letters of opposition, newspaper articles; on the front of your book is a picture of my husband that was on the February 15th hearing. That was on the front page of the paper. This is a very controversial and special site. I just ask you to please consider all the testimony. DEWOLF: Thanks, any other questions? DALY: How far away do you live from the pit? WALKER: Well, there has been all kinds of different measurements thrown out. Hearings officer has said 1000 feet, so I don't know if people are going from property corner to property corner or they are going from actual residence. DEWOLF: The residence looks like a mile to where they are claiming they are going to start. WALKER: I think it is a half, I don't believe it is a mile. DEWOLF: Ok, thank you. Bob when you come back, one thing that came up in my mind was the 17 million cubic yards. If it is 75,000 cubic yards pulled per year that is pulled out of that, that's 226 years. So, if you could maybe address what we are looking at. Or if the 17 million is actually anticipated to be removed over time or if it is less than that. Ok, who would like to speak next? Yes, sir. LUKE: Everybody who is testifying is signed in? ALLEN CHAMBERS: My name is Allen Chambers... DEWOLF: Allen? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 27 of 61 Pages CHAMBERS : Allen Chambers. I work for the University of Oregon Physics Department. I am the resident astronomer/researcher at Pine Mountain Observatory. What I am concerned with is dust. We already have a dust problem on Pine Mountain. It has been testified earlier by Bob Lovlien about trucks and cars driving around out in the desert throwing up dust. This is true and it all does affect us. Most of the dust falls out back down to the ground but a very great amount of that, that's generated also in very small fines, makes it up into the atmosphere. The problem with the site of the rock crushing facility is that it is to the northwest of us and the prevailing winds from late spring through early fall is from the west, northwest quadrant. The wind would blow the dust directly over the top of Pine Mountain. LUKE: What are the prevailing winds the rest of the year? CHAMBERS: From late fall through early spring it is usually from the south, southwest, it swings. But that is enough to do the damage. So, we already have a problem up there and this would just add a little bit more to the problem. Dust is very interesting quality because you can actually have a dust storm in Mongolia and it can affect us here. DEWOLF: Explain that to me will you please. CHAMBERS: Well, when they have a strong dust storm over in Mongolia it gets up into the upper atmosphere and it will literally travel around the globe. LUKE: Much like the Mt. Saint Helens eruption ash flew around the world. CHAMBERS: Adding aerosols to the atmosphere. DEWOLF: So something that happens in DesMoines or Bolivia or Antarctica, not Antarctica, it is too icy but... Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 28 of 61 Pages CHAMBERS: They are south of us, we are talking about the northern hemisphere. Although when Pinatubo exploded years ago, we got a little bit of the dust from that volcano which is in the southern quadrant down in the Philippines. DEWOLF: My assumption is, and I don't know your business, but my assumption is what you are suggesting is that the proximity here is a more significant problem than something in Mongolia. CHAMBERS: Six and a half miles versus thousands of miles is very significant. DEWOLF: Ok, thanks. CHAMBERS: With the prevailing winds blowing directly over Pine Mountain, we have already had problems. I have been at Pine Mountain on and off since 1975. We have issues with cleaning instruments. The mirrors used to be a once a year thing and now I am cleaning the mirrors up to three times a year because of the dust. This would only add to the problem that we already have. Dust in the air actually can change... We use filters when we are looking at the stars and more and more dust in the air can actually change the characteristics of the starlight so we are not getting true readings on the stars. LUKE: I don't want to get into this to much but I have been here since `73' and there has been significantly less moisture, not only down in this area but up there to which also contributes to some of that problem. CHAMBERS: That is true. It lets the aerosol stay in the sky much, much longer. It is a big problem. Right now, just a couple of weeks ago, I had some of my instruments lock up because of dust in the instruments themselves. I had to take them completely apart and clean them and it took about 2 weeks to get everything taken apart, cleaned up, reinstalled and recalibrated. So, it is a problem. This site would not be the only source of dust, it would just exasperate the problem that we already have. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 29 of 61 Pages DALY: I have a question. Mr. Chambers, have you observed, actually went down into the pit and observed a crushing operation and watched how they water and do all that stuff. CHAMBERS: I went to the pit out at Antelope, twice ...or Alfalfa. It was not even working when I was out there; they were working on the equipment. DALY: Ok, I have been around pits a lot and I do know when they are in operation that water trucks are going and they have paved roads in and out. They have water actually on the crushing machinery itself and there is very little dust that erupts. Because of the DEQ regulations, dust is almost no longer a problem in the crush operations, at least in the ones that I have observed. I suspect that you would have little dust devils out on the desert and cars driving down the dirt road would probably create more dust than what this operation would create, at least has been my experience. I would suggest that you go look at an operation when it is in operation to make up your own mind about how much dust will affect you from a crushing operation. CHAMBERS: That is fine, what do they do when the trucks are driving in and out from the crushing operation. Is it going to be paved in there, is it going to be watered down? DALY: Yes. CHAMBERS: When they take the hoppers and dump the aggregate into the hoppers and the trucks, do they actually water that down so that does not go into the air? We have another crushing operation about 15 miles from Pine Mountain. I think it was called the Moon Operation. That is thousands of feet below, up and below, a little ridge and we can't actually see the operation. Once in awhile I see the dust coming from that up and over the ridge and blowing towards us. That is a crushing operation and I have driven by that before. I see a lot of activity in there and a lot of dust created there. Do they water that one down? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 30 of 61 Pages DALY: I am not sure the moon pit is crushing. I may be wrong but it seems to me that is a dirt pit, if I remember correctly. CHAMBERS: They are crushing out there, they have machinery. DALY: Mostly it is a moon pit. Anyway, I would ask you to go observe one of those operations just to satisfy in your own mind how much dust will come off of there. CHAMBERS: That is fine; I am just bringing up the concern. DALY: Ok. DEWOLF: Any other questions? Is that it? CHAMBERS: Well, it has been testified about the Bulletin building being close to this other operation but they are not talking about it being blasting, just crushing. DEWOLF: Correct. CHAMBERS: But the Bulletin building is completely sealed and I am sure that the printing press is in a nice controlled room. My instruments are completely open to the sky when I am working. The domes are open, the instruments are open; everything is completely open to the dust. LUKE: Neat place. I have taken my Scout troops out there a couple of times. We had clouds those nights so we could not see. CHAMBERS: Well, the concern is real. We are already being impacted by dust. A lot of it is cars and stuff driving around out in the desert but we are also getting a lot of aerosol from everywhere else. The night skies have changed dramatically in the Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 31 of 61 Pages past 8 to 10 years. Where it used to be very dark black skies, it is now almost a dull gray. Even the light changes and a lot of that is dust in the air and being lit up by Bend. Pretty soon we might not be able to use that as an actual research facility, only as an educational facility for visitors. Those are my concerns. DEWOLF: Thank you very much. Ok, who is next? VOICE FROM AUDIENCE: I think I am and I have a PowerPoint presentation. LUKE: How is the PowerPoint presentation going to be entered into the record? DEWOLF: Do you have a print out of each of the... VOICE FROM AUDIENCE: I could do that, I just don't have it with me. LUKE: If you promise that you will... DEWOLF: Just printing them out on black and white, it does not need to be anything fancy. LUKE: You want us to turn around don't you? VOICE FROM AUDIENCE: I do. I also put some materials in Tammy's notebook. There are some photos in there as well. LUKE: Use this mic for the record. Staff is suggesting that if you just want to provide a disk. VOICE FROM AUDIENCE: Oh, that would be much easier, thank you. I want to speak also if I can before I run this to let you know who I am and I was going to turn in my letter but I have written a lot of notes on it so it is... Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 32 of 61 Pages LUKE: The record will be open a few more days. SUSAN GRAY: Good morning, my name is Susan Gray. I am a member of the Archeological Society of Central Oregon, the Oregon Archeological Society, the Nevada Rock Art Foundation, and the Deschutes County Historical Society. For a brief time I managed the Historical Center. I served two terms a president of the Archeological Society. I have documented and recorded rock art sites for the Forest Service, the Bureau of Land Management, and the Nevada Rock Art Foundation in Oregon, Washington, and Montana. I have done some brief work in the Valcominica in Italy. I am here today to present some information on the pictograph site which is approximately, and now I am afraid to use my measurements, but I say 1000 meters across the highway from the proposed gravel operations and within 100 meters of Highway 20. LUKE: Do we have to convert that? GRAY: Multiply it times three. To tell you something of the Dry River which winds it's way from Hampton through Horse Ridge and the Badlands to the Crooked River. The bed appears dry but ground water is there, not five feet below the surface. Occasionally within recorded history the Dry River has run. It ran, for example, east over Whitaker Holes, which happens to be a significant heritage site on BLM property. I have recorded heritage materials there. This was known and the river bed used consistently by the Paiute people and their ancestors who roamed freely through this country for many generations. There are cultural sites along the entire length, including several significant rock art sites, besides the premier site on the Walker property. I have been involved with ASCO in recording many of these sites for the BLM. Because of the potential negative impacts to the cultural sites along the Dry River, the BLM and ASCO (which is short for the Archeological Society of Central Oregon) entered into a five year partnership to survey and map sites before these sites could be damaged. This was to take place both on public and private lands. We entered into this agreement in 2003 and we have also already done quite a bit of work in the Badlands. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 33 of 61 Pages For you, the Commissioners, I have prepared some information on what pictographs are, how they were made, how they can be impacted by changes in air quality, efforts by scientists all over the world to recognize these potential impacts and take measures to reduce them. That material is in the notebook. In addition is quite a bit of information on previous archeological studies that have been done just recently out in that area. The pictographs in the land surrounding the Walker property, first held by George Millican, has been recognized as a significant site from the early days. People came to visit the site and unfortunately to dig at the site. I have a photograph in my presentation that shows someone doing that digging courtesy of the Historical Society. Records show that people dug hundreds of arrow heads out there when it was an acceptable practice. Burials were found. Now times have changed and that activity is frowned upon without scientific study and in the case of burials, totally disrespectful and illegal. Vandals defaced the rock panels and the site was considered by many to be lost. However, in 1988, Ed Park who owned the property at that time invited a team of conservationists including Dan Matson, who was the Warm Springs Tribal Archeologist at that time, Northern Paiute spiritual leader Nelson Wewa, and others from Warm Springs to remove the graffiti. They did this and the rock panels stand beautifully untouched since that time. This is due to the very active stewardship of the site by Ed Park and now, the Walkers. A fence was finally installed in order to control access to the site. It is unusual for the sites location to be made so public, but your action with regard to this request for change in zoning by Ron Robinson & Sons has required us to come forward. The Archeological Society of Central Oregon has been working with the Walkers to make a more accurate survey of the pictographs and map them into the canyon. We have done this and have prepared documentation for the sites nomination to the National Register of Historic Places. The State Archeologist, Dr. Dennis Griffin, has seen our work and it has been in fact declared to be eligible for the National Register. Because of information of the sites previous condition with the graffiti and the looting, many people, and I think a lot of people out in that area including Ronnie, were under the mistaken impression that the site was trashed. This is just not so. I have slides of the site and I would like to show you what a treasure is right across the highway. I would like to do that now. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 34 of 61 Pages As talking, Ms. Gray was showing slides. The first slide is the way the valley looks as you come over Horse Ridge, you are just coming down and Walkers driveway is off to the left and you can see the cinder pile that has been referenced here today. That is Pine Mountain out in front of you. LUKE: The paved road is past that cinder pile? GRAY: That is correct. Going back to the slides: The road that you first see is Evans Well Road. This is a view of the Walkers property towards the Robinson property and Pine Mountain. This is from Walkers looking across the valley to China Hat. From the Walker driveway to Pine Mountain. Do I have to use this, can you hear me? DEWOLF: Yes, we have to have it recorded. GRAY: Ok. This is the Dry River Gorge at Horse Ridge. This is part of the work that ASCO was doing. This is a professional surveyor who is an ASCO member and we are doing our first survey. The rock face on the left side is what we call the east face, it is covered with pictographs, continuing on down about the middle of the slide past Dick there is the main face which I will show you has just as many pictographs on it as this east face. This is the east end of the site for the First National Register nomination which is on their driveway. What we intend to do is submit the nomination in two pieces. First the pictograph site and the prehistoric component and then after that the historic component with Coyote Well, which would be behind me, as you are looking at this slide. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 35 of 61 Pages - This is continuing into the Dry River Gorge, on their property of course. That is the main face we call the west face. - This is ASCO doing a preliminary site survey. Janet Nash was out there with us that day. That rock faces the east face. As you walk past it you would never know that it was full of pictographs. The pink flags there are...we had about 100 flags with us and we used all of them and those are lithic's, pieces of obsidian chips from tool making there. - This is the most well known of the rock faces in Dry River Gorge. This is the view from that rock face looking down the canyon towards Pine Mountain. - This is a grinding area on a rock right near that panel that had been used for food making by the Native American tribes who used the canyon. - This is during the summer, we call these Tenaha's, and they are where the water has collected in the rock surfaces in the canyon. - This is an example of a panel on the rock face which has been enhanced so that you can see the pigment. - This is another image. Again, you can see that these images have not been trashed. - This was enhanced also, unfortunately it is too big, you can't see it but it is a Quadra pit of some sort, when you see it better it looks like an antelope. - Here's another one. It shows continuity of the presence of animals in this area then and now. - Here again, is another one of the great panels. - Again, too close. - This is a panel, un-enhanced, so this is the way the camera saw the images. - This is enhanced in photo shop, I did this. - Here is another one, walking by it you would never know that anything is there and here it is enhanced in Photoshop. We have over 109 panels identified to date and probably more to come. Here is panel 66 un-enhanced. Here it is enhanced in Photoshop. This is the most famous of the panels. It is called a polychrome because there is more than one color. It is very rare in this area. Pictures of this panel appear back in the 30's with Phil Brogan and Bob Sawyer in them. - Here is another part of that panel enhanced, here is un-enhanced, here it is enhanced. You see the anthropomorphic figure there. - This is interesting because behind the red pigment you see black charcoal from fire. The 1988 conservation effort was able to remove quite a bit of that charcoal so that you could see the pigment come through. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 36 of 61 Pages - Here again is another animal, probably a deer. One of the things, and I do not want to get into this too much because I am not an expert, I am not an archeologist by profession but some of the studies that I have included in the notebook talk about the impact of bad air. This is a statue on the outside of a castle in the Ruhr Valley, one picture taken in 1908 and the other picture taken in 1968. Obviously, the Ruhr Valley was quite industrialized and this is probably lime stone or sand stone. Just, dramatically, to tell you these are the kinds of concerns we have. And then a little commercial, this was a (untellable word) picture taken out there at the site, and that concludes my presentation. DEWOLF: Thank you. We will take a couple minutes break at the request of Commissioner Daly. Susan, you will get a copy to us of what you read as well as emailing the PowerPoint? GRAY: I will rewrite what I read to be what I said. DEWOLF: Great. Just email the PowerPoint, we will copy it. At this time there was a five minute break. DEWOLF: Ok, if we can come back to order we will continue, please. BLIKSTAD: Tom, Pat needs to leave and I was hoping... she wanted to reference this packet. DEWOLF: Ok, Pat. Why don't you come up, is that what you are suggesting, Paul? BLIKSTAD: Yes. DEWOLF: I assume that this is...we will continue with the opposition testimony, I believe there are one or two more speakers. Pat is the Historic Planner for the City of Bend now, formerly with Deschutes County. Just briefly, because she has to leave. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 37 of 61 Pages LUKE: We don't want you guys to feel sorry for us but we have another hearing that starts at 5:30 in Redmond. PAT KLIEWER: My name is Pat Kliewer and I am the Deschutes County Cultural and Historical Resources Planner. My address is 129 NW Idaho Avenue, in the Deschutes Historical Center in Bend, 97701. The Landmarks Commission, as you pretty much ascertained, since we were notified in February of the proximity of the pictographs in Coyote Wells to the property, has been involved in research, primarily. One of the things that we have also been doing, since the owners have chosen to nominate their property to the National Register of Historic Places as a significant archeological site, has been to help in writing a historic and prehistoric context statement for this site. Just as we choose our houses today in places that we enjoy that we can have food, water, power, a view, whatever we need, prehistoric and people who are living today choose places that they live for the same types of reasons. In the packet that you received today from the Landmarks Commission is an attempt to start the real deep study of what was there 13,000 to 16,000 years ago. Archeologists have documented the native peoples using this site and surrounding sites in the Newberry Crater area and the Fort Rock area. These were all interrelated groups and what has changed over time? The settlers, when they came in the second half of the 19th century, did find Native Americans in the area and on the subject site. On Robinson's site on all the mounts, which we included in the current maps, it is still called Tepee Draw. That area is called Tepee Draw because of the tepee rings which are made of rocks. There is also a picture in the packet of what they look like, were found in that area. We looked at how the Walker property, the Robinson property, and just some of the properties running up Bear Creek Butte that are just full of lithic scatters, hunting blinds, and other artifacts, how they are all interrelated. That study is ongoing by a professional archeologist's team that is working with the Walkers as volunteers. The one thing that the Landmarks Commission has always appreciated is the volunteers that include the Landmarks Commissioners that serve in an unpaid capacity. There are such good people and such volunteers but our community is full of them. When the Walkers decided to nominate their property for the National Register of Places, everyone that they asked to help not only said they would help but said they would help for free. They had people like Dick Bryant out there with the Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 38 of 61 Pages transit that you saw. The studies that have to be done for the National Register are exacting and they are done by Federal and State standards. Every one of those panels that Susan Grey showed you had to be measured to the inch from points that Dick set in that canyon. So, the work is very exacting and pretty much that part of it is finished. The area around Coyote Well, which we put in our report, is really a stones throw from the fence line; I can throw a lot farther than that, from the Robinson property fence line. There is something confusing about the distances because there ...you know when we work for the County we talk about property owners a 1000 feet away, 500 feet, we are going from fence lines from property lines. A lot of the talk I have heard today is going from a center of a property or a center of a pit and that kind of thing. DEWOLF: I think we understand all that, Pat. We're looking at the map and understand that it is not property line to property line. I guess what we are looking for from you is just specific to what the Landmarks Commission has presented here. We get distance. KLIEWER: That sounds great. What I would like to show is on page 9 of the letter. That should be on the top. There is a diagram that we use for permission from the author, Robert Jansen, who was mentioned earlier, who is from the US Forest Service here at Deschutes National Forest office up on Emkay Blvd. That shows the Dry River Drainage Basin that Commissioner Luke has been asking about. It shows where it starts out on the east side on Hampton Butte, flows through that system, ending up at Horse Ridge. If you look on page 11, this is a drawing signed and dated by Larry Chitwood, his partner shares an area there out at the Forest Service, of the exact diagram of the Dry River Canyon on the Robinson property and the Walker property as showing the way the Dry River Canyon works where the pools of water collect and so on. The next page, on page 12, shows a diagram again signed and dated by Larry Chitwood that shows what he thinks will happen to the surface water in the flood plain on the Robinson property if the pit is in place and the movement of water. There is some discussion about that. So, the Landmarks Commission, in this document, has gone through the history of the use of the canyon for all of this time and how it relates to the surface water is a rare thing there and also the proximity of all of the antelope herds which are extremely important to the culture of the northern Piute. Our previous entries in February put in quite a bit of information about their ceremonies in hunting and the Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 39 of 61 Pages religious significance of the antelope hunts as well. We hope that is information is found to be important to you and helpful in understanding the area. We also put in the letter that we received just, actually the evening of the last hearing, from the Cultural Resources Department of the Confederated Tribes of Warm Springs from Sally Bird, who is an Ex-officio member of the Landmarks Commission as well. From Perry Chocktoot, the Cultural Resources Protection Specialist of the Klamath Tribes and Minerva Teeman Soucie who is a Burns Paiute Tribal Elder and the Mother of the Cultural Resources expert, as well. We also have a copy of the letter in here from Dennis Griffin noting the significance that has already been known since the 1920's of this area and recommending the archeological study that was completed on the Robinson property. So, hopefully that will help. The study is ongoing and although there have been many professional archeological studies of this site and throughout the Dry River Canyon, up to Whitaker Holes, as Susan has mentioned, there are 1734 reported archeological sites in the County. This is the only one that has this level of significance. It is the only one that is in continual use for spiritual and cultural practices by the tribes at this time. DEWOLF: Any questions? Thank you. DALY: Pat, you are just submitting all this information that you have gathered over a period of time for us to look at? KLIEWER: Right. DALY: Are you taking a position one way or another, yourself? KLIEWER: Well, I am not speaking for myself. The Landmarks Commission on page 2, it clearly spells out whose views and the source of information that come from this letter. Commissioner Paul Claeyssens has been a tremendous help. He is Ex- officio archeologist on the Landmarks Commission. Sally Bird, I mentioned, who is Ex-officio on the Landmarks Commission. Ron Gregory is Ex-officio on the Landmarks Commission, he is the archeologist to the BLM, has extremely high level of knowledge of this area and this site. Commissioners Jack Nelson, Derek Stevens, Jon Sholes, Dwight Smith, Rick Martinson, and Nicole Nathan all had Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 40 of 61 Pages input into it. Additionally former Commissioner Delight Stone, who is a registered archeologist, Dennis Griffin with the State, Jon Zonkinalla a BLM Archeologist who works with Ron... LUKE: They are all in your testimony though? KLIEWER: Yes, I just want it to be clear that this is not coming from me; I do not know all this stuff myself. DEWOLF: Ok. DALY: But you mentioned something about being a stones throw from fence (unintelligible word) to this site. This map shows 5224 feet. KLIEWER: We put together a map with, actually, the geologist's help. The blown up diagrams that Larry put are here. DEWOLF: Can I just make an attempt here... The thing that when we are looking at 5000 feet, we're looking at this point Mike, clear into the property, not the property line which is up here. So they can claim from the house to this point of the initial phase would be that 5000 feet. They could also go from property line to property line and probably get a stones throw away, but they are not talking property line. They are talking the house, which is clear back from the property line. DALY: She is talking about the Indian site over there, the pictograph. DEWOLF: Personally, I don't think we can pay that much attention to these, people are using distances to make different points here. KLIEWER: Yes, and I think the point where I even got into this is these zone changes. I understand it is for the whole piece of property. The property goes on both sides of Highway 20 and it is adjacent to the fence line next to the resources we were Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 41 of 61 Pages talking about. These are the maps, they fold out, and they are the sizes that Larry gave to us that helps show the topography and the drainage. This area up here is the area where the pictographs are, Coyote Wells drawn right there and the subject property is right adjacent to it. DEWOLF: Ok, that it? KLIEWER: Um hum. DEWOLF: Thank you. KLIEWER: There is a conclusion at the end of our report and again that research is ongoing on that. DEWOLF: Thanks. Who was next that wanted to testify on opposition? Yes, ma'am. LUKE: Pat did you sign this? FRANKIE ASPINWALL: Good morning, my name is Frankie Aspinwall. DEWOLF: Would you mind spelling your last name, please? ASPINWALL: Aspinwall. I am a property owner in the valley. DEWOLF: In the Millican Valley? ASPINWALL: In the Millican Valley. This is an emotional subject and this is going to be emotional testimony. But it is only going to take me about 2 minutes. Rape, the rape, death and destruction of the Millican Valley. This is an atrocity that should have never even been considered. Because of the unique geological features of the Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 42 of 61 Pages valley and possibly because of the large aquifer that's rumored to be under the valley, sound reverberates at an amazing level. I can hear from my property people nearly a mile away coughing. What will this pit sound like in the valley? It will sound like our worst nightmare. No longer will there be piece in the valley, she will scream night and day from this rape. From Forest Service Road 2325, it is all uphill to the top of Horse Ridge. A loaded gravel truck will have a heck of a time getting up to any kind of speed to get up Horse Ridge. This is a main thorough fare between Bend and Idaho. The traffic tie ups will be incredible, much less the accidents that are bound to occur. At the last meeting Mr. Loveland said, "You go twenty miles east of Bend and there is nothing out there." Well, what a misstatement! There are people in the valley, there is wildlife in the valley, and this is where the deer and the antelope play. There are birds, including the sage grass and bald eagles. There are wildflowers and lots of recreation going on. The Millican Valley is one of the most beautiful, pristine, and peaceful places in Central Oregon. She is big, she is beautiful, don't let her be raped. You can either be able to take your children and your grandchildren to the valley to recreate and say I saved the valley, or hang your heads in shame. This is history making, history will either applaud you, or point their fingers at you who is responsible for her destruction. She is in your hands now, please be kind to her. Thank you. LUKE: Where is your place, further east or south or where? ASPINWALL: It is south, southeast. LUKE: South, southeast, ok. How far, about? ASPINWALL: It is about a mile and a half. LUKE: Ok, thank you. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 43 of 61 Pages DEWOLF: Thank you. Was there any one else? Sir, did you want to testify? FRANK CROSSER: Frank Crosser. I have a Bachelor of Science and a Master of Science in... DEWOLF: Can you please spell you last name for us? CROSSER: Crosser. I live in Sisters. I have a BS and MS in Applied Science from Montana State. I have built a 15 year avocation recording rock art, preservation, and conservation of rock art. Commissioners have the record information about nitrous oxides and the growth of lichen. Has this information been entered into the record? DEWOLF: I am not sure I have an answer for that question. What we have read so far, I don't recall that discussion, but we have a large pile of additional information, I don't know. If you have information that you believe would be helpful to us you can certainly submit it. CROSSER: I am not prepared to present quantifiable information. I understand that the rock crushing operations are squeaky clean, except, one form of pollution has gone completely over our heads, the addition of nitrous oxides from the combustion of fossil fuels. There is ongoing scientific investigation of why the lichen bloom has gone practically out of control in the western part of the United States. In southern Idaho the Forest Service and the BLM have just begun to put their thumb upon the sources. A very large source of the nitrous oxides that finally form the fertilizers for the lichen, come from internal combustion engineers. Now, you are not going to run a rock producing mine without a dramatic increase in those forms of pollution. Now, what Susan Grey dramatically demonstrated with her slides, all rock art is disappearing. The rock art on the Walker Ranch, as her slides have demonstrated, is on the edge, it is disappearing. The lichen that destroys the rock art is blooming significantly. As I say, I am not prepared to quantify this. This is a national heritage and anything we can do to protect this national heritage we should be proud of. History will make its decision about what we do today. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 44 of 61 Pages We know that this rock art is disappearing; we know it is valuable, and we know that we can do something to prolong its life, to prolong it as a national heritage. Thank you, gentlemen. DEWOLF: Thank you. LUKE: Make sure you sign in please. DEWOLF: Is there anyone else who would like to testify in opposition this morning? Ok, not seeing any then Bob, you are going to have the final word this morning and then we will leave the written record open for any additional testimony. So, anybody who wants to rebut or comment on what Mr. Lovlien has to say, you will have that opportunity in writing. Yes, ma'am. WALKER: I just want to clarify that his testimony is not new evidence? DEWOLF: What Mr. Lovlien has the opportunity right now is... The applicant is going to be allowed now to present rebuttal testimony, he is not allowed to present new evidence. However, if what he presents is what we determine new evidence; we will give opponents the opportunity to rebut that. But what is anticipated is just rebuttal of anything that has been said this morning. We will leave the written record open so that you can respond to anything that Mr. Lovlien says and he can additionally respond to anything that is said and anybody may continue new evidence during that initial time period. When that time period is finished, then everybody will have a period of time to rebut what anybody else says. When that is finished Mr. Lovlien, and only Mr. Lovlien, will have the last opportunity for rebuttal of anything that is said, and then it is over and we will make our decision. LUKE: Technically, it is the applicant and not Mr. Lovlien. DEWOLF: Correct, on behalf of the applicant. LUKE: Did Ron sign in? Did Scott Wallace and everybody sign in? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 45 of 61 Pages LOVLIEN: Yes. What I want to clarify first is the map, Exhibit 1 B. That was intended to comply with what the Oregon Administrative Rules require. That was 1500 feet from the boundary of the mining area. So, that's the significance of Exhibit 1B because we took from the closest point of the mining area and measure those distances from that point which is consistent with the Administrative Rules. It was not an arbitrary decision. LUKE: This one comes from the corner of the mining area, even though it is not the property line. You are not suggesting you want to mine out there, is that the point? LOVLIEN: No, the surface mine zone will be limited to the 3 phases area and the staging area. DEWOLF: And the difference between these two maps is this is going from the initial phase to those same locations. LOVLIEN: To give you the idea of scale that we are talking about. It was the 1500 feet from the mining boundary that is why that was chosen to comply with that Administrative Rule, the Oregon Administrative Rule. LUKE: There was a statement that the entire piece of property, which to me is the blue line... LOVLIEN: Typically the surface mine zone would actually only entail phases One, Two, and Three and the staging area. DEWOLF: And the rest of it would remain EFU? LOVLIEN: EFU. LUKE: So you are not asking for the entire piece of property to be surface mining, you are only asking for the 3 phases? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 46 of 61 Pages LOVLIEN; Yes, that would be consistent with the Rose site south of (rest of sentence covered up by talking.) LUKE: I just want to confirm, is that a yes? LOVLIEN: Yes, that is a yes. I wanted to make sure that you understood that and then there are some specific questions... DEWOLF: That is a legal question that I am going to want an answer to and if it is simple, you can just say yes. If it takes more research we can get this later. Is, within this same piece of property, that we can have two separate zones so that only the One, Two, and Three phase could be surface mining and everything else would remain EFU. CRAGHEAD: We do have other properties in the County that have split zoning on them, however it has been difficult if we don't have a meets and bounds description to determine where that is going to be. DEWOLF: But with the meets and bounds description, we could do that and specifically outline what the SM zone would be here? CRAGHEAD: I believe we can. LUKE: Clearly, if you said it had to be on the east side of the highway, I mean the south side of the highway that would take care of most of the concern on the other side of the highway of course. LOVLIEN: We have no intention of doing anything north of the highway, period. And we have no intention of doing anything outside of those setback areas that we have identified on the conceptual site plan. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 47 of 61 Pages DEWOLF: Ok. CRAGHEAD: And that might be the better way to do it, is that it would require certain setbacks. LOVLIEN: There were some questions asked, that is why I have Ron standing here. When Mrs. Walker asked how big a shot, if they are only going to commit a shoot once a year. RON ROBINSON: We would try to mine a 75,000 cubic yard zone or segment each time we go in there and mine. The first shot, just like any construction project we do around town here, we would start with small shots. We would probably get 2 or 3 shots just to see how the rock shoots and everything else. So, the very start of our stage out there would be probably 3 - 25,000 yard shots to see how the rock breaks, to see what the pattern is and stuff like that. Then we would move to a 50,000 yard shot or a 70,000 yard shot which is about a pound per cubic yard to break this rock around here. You are talking 50,000 pounds. DEWOLF: How long of a period of time would it take to... When you talk about doing this once a year does this take place in the course of a day, a week...? ROBINSON: To actually load the holes and shoot them takes about a day. To drill the holes would take 2 to 3 weeks. DEWOLF: The actual explosion... ROBINSON: The actual explosion is a two minute deal. DEWOLF: You are talking in 2 or 3 small shots. Do those all take place at once? ROBINSON: No we would do those over the course of a 3 week or month long period. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 48 of 61 Pages DEWOLF: Ok. LOVLIEN: Explain the sequential of how that works. ROBINSON: When you shoot a mash out like this you would have 300 to 400 different holes out there. You load all those holes but you usually have them in rows. You have one row going off at a split second here and then (this won't mean anything to you) 13 to 15 milliseconds later the next row goes off, then the next row, so there is not 300 or 400 holes going off a once, they are going off a split second intervals. It actually moves your rock one way of the other. DEWOLF: Uh huh. ROBINSON: It also keeps the vibration down also. LUKE: Trying to crack the rocks so you can... ROBINSON: Exactly, it gives you a phase to have your rock go into. It gives you some relief is what they call it. DEWOLF: So this once a year, from the time somebody hears the first blast, when is typically the time they are going to hear the last blast. ROBINSON: Tom, if we shot 3 different shots, it would be a three week period. DEWOLF: So, once a week for 3 weeks? ROBINSON: Yeah. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 49 of 61 Pages DEWOLF: Ok. ROBINSON: Most of our pits that are out a distance from homes, we shoot one shot a year, or maybe two if we go in there and crush twice a year, whatever the case is. LUKE: Your project off of Brookswood that you guys just finished up or are finishing up, there was quite a bit of blasting in there and drilling there. Over what period of time were you blasting in there? ROBINSON: We shot there for about a 3 month period, Dennis. That was Phase One, that was a 156 lot subdivision. Phase Two is smaller, it will take about a month and half to drill and shoot that. LOVLIEN: The second question was how big is the crusher? ROBINSON: The crushing jaw is a 30 by 42. That is a standard size jaw that just about all the crusher people use around here. DEWOLF: What was that again? ROBINSON: A 30 by 42. LUKE: Thirty by 42 what? ROBINSON: Its 30 inches by 42 inches. That is the actual crushing chamber. DALY: I have one more point, getting back to the blasting. I think people have to understand it is not like in the movies when you blast. The sound that emits from the shock that he is talking about is...it just goes whomp, and that is about all you Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 50 of 61 Pages hear. It is not a big blast with things going up in the air and fire and lightening and everything else. That is not the way it works. LUKE: I was here in the 70's when they were doing the sewer in Bend and we were around a lot of those. ROBINSON: It has changed a lot in the last 10 to 15 years. DALY: Yeah, I did this kind of work for 18 years; I handled explosives and did a lot of blasting. It is not like the movies, believe me, it does not work that way. Voice from audience: "You are biased". DEWOLF: Please, thank you. We are not...this is Bob's opportunity to rebut and the testimony really needs to stay with him. He can make his points and so let's all let the applicants continue with their rebuttal please. LUKE: One more question, where ever you put it in I want to talk about the water table in the area too. ROBINSON: Dennis, we have a pit in Alfalfa that we use on a regular basis. It is 48 feet deep and that is right in the middle of a big basin, a big low spot. That pit out there, I have actually seen water running on top of the ground out there. I have never seen one ounce of water in that pit, and that is the low point. So, that is the same type of situation as out here. LUKE: Do you know what the well depth is out there? LOVLIEN: About 800 feet, according to well logs. LUKE: Ok, because we have got...like in La Pine you have the surface ground water and the well water is quite a ways down. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 51 of 61 Pages LOVLIEN: We are assuming that the Coyote Well is a purged water table and would not be part of the aquifer under the valley. Explain your operation over at O'Neil Junction in respect to the pipeline by way of illustration. ROBINSON: We have a pit in O'Neil that virtually is within 300 to 400 feet of the PGT gas line. That is an active rock pit; we shoot that pit once a year. The PGT people come out there, they monitor it, and they have pretty stringent blasting regulations out there. We shoot that with a lot of millisecond delays so we get relief, very little ground vibration if any out there and we have never had an issue. That is a PGT gas line. That is an active rock pit. We shoot that pit at least once or twice a year. We shoot 25,000 yard shots out there at a time. LUKE: Whoever put that graft in there, explain what this means. Can you submit something, one page or something that talks about what this means, please? LOVLIEN: Yes. The other question was a 75,000 cubic yard issue. ROBINSON: The 75,000 cubic yards is what we need to pull out of that pit today. DEWOLF: Would you anticipate eventually getting 17,000,000 cubic yards? Is that the anticipation? ROBINSON: That is probably the life long of this pit; I won't be here by then but... DEWOLF: Not if it is 226 years and if it were to stay at 75,000 yards per year. ROBINSON: Tom, 75,000 yards is based on today's number, we are going to need more. The other problem my company faces is that same pit, the O'Neil Junction pit, that has probably got the smallest reserve we have as far as rock. We have maybe 500 to 600,000 cubic yards left there, so that pit will be depleted first. Then we will probably take the Alfalfa pit, that will take care of all the Redmond needs for all the rock in Redmond. This pit would be the main supply for the Bend area. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 52 of 61 Pages DEWOLF: Ok. LUKE: Do you have any comment on the material that was entered into the record about there's 50 years of rock in this area? ROBINSON: Well, I don't know where it is Dennis, I can't afford to go buy it from other people, not the scale of work we do. I can't afford to buy rock from anybody else and be competitive. Plus, with the haul business we are looking at any more it is just incredible. LUKE: Ok. ROBINSON: One of the main reasons I was really looking east for a product, for a source, that is where you are gong to see the main growth in Bend, is east of town. That is were you are going to see all the UGB expanding, everything else. That is going to be the closest haul I can come up with from the east side of town. DEWOLF: Ok. LOVLIEN: Obviously there was a lot of material submitted that we have not had the opportunity to review, including that McClain study, which is something new. We will take the opportunity to address those over the next ...I am assuming we are going a 7 day, 7 day cycle? DEWOLF: What I was actually thinking... Because we also have in that period of time Labor Day weekend, I was thinking what we would do now, also to give our staff some time, because we talked about looking through the USGS Study and if there is any information we can glean from there and then Laurie had a couple of items to research including the requirement to list the resource and how that works. What I was thinking, subject to your guy's approval, is that 10 days from now, which would be a week from Friday at 5p.m. for any additional new evidence or rebuttal to anything that has been presented today. That would all be do by a week from Friday by 5 p.m. Then the following Friday, which would be an additional 7 Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 53 of 61 Pages days... This is one that I am not sure I am completely comfortable with but I am thinking 7 days, which would be to the 9th for any rebuttal testimony from either side to anything that has been stated. Then one additional week for the applicants to rebut before we make a decision. LUKE: Since we don't have any clock, why don't we go 2 weeks from the 2nd for people to prepare stuff...? DEWOLF: Ok, so we will go 14 days on the 2°d batch. LUKE: Bob, would a week after that be enough time for you, there is no clock so you guys tell us. LOVLIEN: We are relying upon you're good graces to move this through at a reasonable time. We do not want to put an artificial clock on. I just think it is more important if I know what the dates are. Those time frames sound fine. DEWOLF: Here is what we are going to do. We are going to leave open right now, we will close the Public Hearing today, and then allow until 5 p.m. on September the 2nd for any new evidence or rebuttal of what has taken place today, and then two weeks after that, which is September 16th, at 5 p.m. for any rebuttal to anything that is in the record as of the 2" d. No new evidence would be allowed during that time. Then the applicant would have an additional 7 days after that point, which is September 23rd at 5 p.m. LOVLIEN: Could I graciously ask for that next week? I was going to be on vacation that week. DEWOLF: The 30th will have 14 days. So, September 30th, Bob? LOVLIEN: That would be fine. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 54 of 61 Pages LUKE: We did not want to put an artificial clock on this. DEWOLF: We want to make sure everybody has the opportunity to do what they need to do. LOVLIEN: I understand. DEWOLF: So, the 2nd, 16th, and the 30th will be our dates. We will schedule a decision ...Do we schedule that now or after the 30th? CRAGHEAD: It does not matter as long as we are watching the time period. DEWOLF: It is just the matter of making a decision? CRAGHEAD: Yes, and so we are assuming it will be 2 to 3 weeks after that. DEWOLF: Ok. LUKE: I saw nothing entered into the record today that would dispute that this is a significant site. So, I would think you are looking at a couple of decisions. They have another week to submit evidence that this is not a significant site. I think from what I have been hearing from staff is that they are going to do further research. I think our hands are pretty well tied. It is pretty well directed by State law what we have to do in declaring this a significant site. CRAGHEAD: A preliminary look and by doing a second review of the Hearings Officers decision, I would agree on that and I will just verify that. DEWOLF: Bob is that it for now? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 55 of 61 Pages LOVLIEN: There are a couple of things that I would like to say. One, I don't think quality and quantity is an issue and I would urge you to read Andy Seamen's report if you have any questions in respect to that. And in particular, the information he has on the specific flow that goes through this particular area that differentiates this from all the other basalt we have in the area. It is different and significant site from that aspect. We started out on the area of impact to comply with State law at 1500 feet and what you have to identify is a significant potential conflict that goes beyond that area. Even if we go beyond that area though we think that we have identified those conflicts and that we have addressed those. There is a significant amount of material that has been submitted by our wildlife biologists in consultation with both ODFW and BLM. It was not done in a vacuum, I think that's important. There was an archeological study done of the site and there were no significant archeological sites on the entire acreage. They went beyond even the mining boundaries and took into account the entire property itself. LUKE: That's in the record? LOVLIEN: That survey is in the record. DEWOLF: I think what would help, Bob, is in this initial time frame and Tammy too for your attorney, one of the issues that was left a bit vague in my mind in the Hearings Officers report was either the necessity or lack of necessity for the ESEE study. That is a significant issue. If both sides could put in the record over the next ten days your beliefs, specifically to an ESEE study, I think that would help us in making our decision as well. LOVLIEN: Traffic has been identified and addressed. The flood plain issued has been addressed. Water resources department has addressed the aquifer in that particular area and this is not a water intensive use by any means. I will, in my materials, again reference you back to specific studies that have been done. Believe me that there are volumes of material that has been submitted that we have not addressed specifically today in the time we have. If there are any questions, I would refer you to our burden of proof statement as well as the studies that have been done. There have been extensive, extensive studies done. In particular I would address the vibration study. I don't think there is any evidence that any blasting or crushing operations will affect those pictographs nor do we want to affect those Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 56 of 61 Pages pictographs on the other side of Highway 20. That's why they went to great lengths to make sure that those vibration studies were done and that we knew that we could proceed without, in any way, impacting those pictographs or the Walker Residence on the other side. LUKE: I would hope, and we mentioned this before, that the Hearings Officer seemed to move the impact area out further than the half mile, of course, and far more than the 1500 feet. DEWOLF: We've got it in our code at 1/2 mile. LUKE: I would like to know if there is any case law or any precedent for us doing this. CRAGHEAD: The language of the OAR itself is what the Hearings Officer found that allowed for this because of the fact that it says it is 1500 feet or if factual information indicates significant potential conflicts beyond this distance. That is what she was hanging her hat on in this case. LUKE: But the County has a half a mile. CRAGHEAD: We can't apply our County Codes; we are applying the OAR's. LUKE: Ok, I understand. But traditionally, we have been looking a 1/2 mile. I'd like to know if there are any cases where we have gone beyond 1/2 mile and what the reasoning was for it. Are we setting a precedent here? That is all I would like to know. DEWOLF: Ok, anything else, Bob? LOVLIEN: No, thank you. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 57 of 61 Pages DEWOLF: Laurie. CRAGHEAD: Commissioners, thank you. You touched on one of the issues which was the ESEE (Environmental, Social, Economic, and Energy) analysis issue. I apologize that from being out of the office for two weeks, I only had a chance to skim the Hearings Officers decision before. I ran it more thoroughly this morning while sitting here and I found some points that the Board is going to need to consider and that may be during this first 7 week period that the parties can respond to. DEWOLF: Seven week period? CRAGHEAD: Seven day period, excuse me. You talked about the ESEE analysis. The other one is the Hearings Officer found that the applicant needs to identify what will be the post mining use. That use must be limited to an EFU use. LUKE: That is in their response. CRAGHEAD: Ok, it is a different issue that reclamation. In terms of are they going to put a house on it, are they going to farm it, that's what she is talking about. Addition to that the Hearings Officer found that the applicant needs to submit a conceptual reclamation plan. She talked about that plan, the final approval of that plan rest with DOGMI (Department of Geology and Mineral Industry), but that conceptual reclamation plan is what she... LUKE: Is that necessary for the zone change? CRAGHEAD: She found that was necessary for the zone change because it was part of the OAR's. LUKE: My question to you, because we ran into this, we are running into this on the other hearing that we are going to talk about tomorrow, is that part of the site plan review or is that part of the zone change? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 58 of 61 Pages CRAGHEAD: That is one of the things that the Board will need to decide too because the Hearings Officer found that was necessary as part of the zone change. DEWOLF: With findings, we could find differently than that. CRAGHEAD: What I need to do is look at it a little bit more. LUKE: I would be looking to Legal Counsel to help tell me. CRAGHEAD: Right, but I am just pointing out issues that the Hearings Officer pointed out. Parties can respond to this during that 7 day period and I can also respond to it. LUKE: This is a different Hearings Officer than on the one we are going to hear tomorrow. So, you have two Hearings Officers kind of doing the same thing, is that... DEWOLF: What you want from Mr. Lovlien then is a plan for how this property is going to be dealt with when this is all done in 226 years and the City of Millican has a population of 140,000 residents. CRAGHEAD: That is what the Hearings Officer found. I am just saying what the Hearings Officer found. LUKE: But that is the question, is that part of the site plan review, or is that part of the zone change. CRAGHEAD: As I said, I will look into it further, but the Hearings Officer found that's part of the zone change. DEWOLF: Ok, anything else? Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 59 of 61 Pages DALY: That will be the Millican swimming pool. CRAGHEAD: Yes, and the Hearings Officer also found that the applicant needs to address (what we have been talking about all day) is the mitigation measures that go beyond 1500 feet, as Bob had already talked about here. Those are the issues that the Hearings Officer found. One other issue is a conceptual reclamation plan that she found and it is part of the OAR's on that. She also pointed out that that final approval of that reclamation plan is not for the County. It is for DOGMI to approve but that needs to be submitted. LUKE: DOGMI will be here in 226 years? DEWOLF: Paul, do you have anything else to add. Ok, what we are doing here right now is closing this public hearing for any more oral testimony. Ten days from now any additional testimony or rebuttal from either side will be do at 5 p.m. September 2nd in this building, upstairs, or to Community Development Department to direct it to Paul. Either place will make sure that it gets to the right place. Fourteen days after that, 5 p.m. September 16th, is rebuttal testimony, only, from either side and then 14 days after that is applicant rebuttal, only, and that will end 5 p.m. September 30th. Then we will schedule a decision date. Ok? LUKE: I would just like to point out to the audience that in other public hearings, if the stuff came in late, we don't accept it. So, please try to stay to those time limits. DEWOLF: Thank you everyone. We are adjourned. Being no further testimony given, Chair DeWolf adjourned the hearing at 11:50 a. m. Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 60 of 61 Pages DATED this 23rd Day of August 2005 for the Deschutes County Board of Commissioners. Tom DeWolf, Chair ATTEST: Recording e retary Attachment Exhibit A: Exhibit B: Exhibit C: Exhibit D: Michael M. Daly, ComMissioner Dennis R. Luk , a issioner Preliminary statement Community Development Staff Report Sign in Sheet Notebook and exhibits in the notebook submitted by Tammy Walker Public Hearing regarding Millican Valley - Surface Mining Tuesday, August 23, 2005 Page 61 of 61 Pages Board of County Commissioners Measure 37 Hearing Process The Board of County Commissioners is now ready to open the hearing on a Claim brought against the County pursuant to Ballot Measure 37. The hearing before the Board is quasi-judicial, but not a land use decision. This proceeding is the only hearing provided by the County under the County code provisions which implement Ballot Measure 37. The Board's decision will be based upon the material submitted to county staff and furnished to the Board. The County code provides that the claimant and those persons who have previously submitted written material to the County on this matter will be given an opportunity to offer testimony bearing on the claim. This hearing is not open for comments from members of the general public. The decision by the County on this matter will be memorialized in a Final Order. The Final Order will be mailed to all those participating in this proceeding. The Final Order will also be recorded in the Clerk's Office. The criteria for this decision involving a claim under Ballot Measure 37 is contained within Chapter 14.10 of the Code. The applicable criteria are as follows: 1. The Claimant is the owner of the subject property; and 2. The Claimant or a family member has owned the subject property continuously since before adoption or the effective date of a county land use regulation; 3. The County's land use regulation is not exempt from challenge under Ballot Measure 37; and 4. The County's land use regulation has caused a reduction in the value of Claimant's property. If the Board determines that the criteria for compensation payment pursuant to Ballot Measure 37 has been established, and the claim is eligible, it may by written order decide that the county's land use regulation be modified, not applied to the claimant's property, or it may elect to pay compensation based upon the reduction in value attributed to the subject regulation. Page] of 2 Introduction This is a de novo hearing on the request by the applicant on application nos. PA-04-8 and ZC-04-6. The applicant has requested a Plan Amendment to amend the County's Comprehensive Plan Surface Mining Element, to add the subject property to the County's inventory of mineral and aggregate sites, and a Zone Change from Exclusive Farm Use - Horse Ridge subzone (EFU-HR) to Surface Mining (SM). These applications were previously considered by the Hearings Officer after public hearings held on February 15 and April 20, 2005. Evidence and testimony were received at those hearings. This hearing is being conducted in accordance with the procedures established under Title 22 of the Deschutes County Code. Burden of proof and Applicable criteria The applicant has the burden of proving that they are entitled to the land use approval sought. The standards applicable to the applications are listed in the Hearings Officer's recommendation located at the table next to the entrance to this hearing room. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, the Hearings Officer's written recommendation, as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. Failure on the part of any person to raise an issue, with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes, appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue precludes an action for damages in circuit court. Hearings Procedure The procedures applicable to this hearing provide that the Board of County Commissioners will hear testimony, receive evidence and consider the testimony, evidence and information submitted into the record, and will be the basis for their decision. The record as developed to this point is available for public review at this hearing. Order of Presentation The hearing will be conducted in the following order. The staff will give a staff report of the prior proceedings and the issues raised by the application. The applicant will then have an opportunity to make a presentation and offer testimony and evidence. Proponents of the appeal will then be given a chance to testify. When all other proponents have testified, opponents will then be given a chance to testify and present evidence. After both proponents and opponents have testified, the applicant will be allowed to present rebuttal testimony, but may not present new evidence. At the Board's discretion, if the applicant presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. At the conclusion of this hearing, the staff will be ~►►6~~ Iq The County's decision will not result in the issuance of a building permit, but will only allow the Claimant to apply for a permit without first complying with the challenged land use regulation. A Claimant must also comply with County regulations which were not challenged under Measure 37. Furthermore, the County's decision is not intended as having any effect on land use or other regulations adopted by other government entities, such as the State of Oregon or LCDC. Testimony, arguments and evidence must be directed toward the criteria described above, or other criteria, which the person believes to apply to the decision. Failure to raise an issue accompanied by statements or evidence sufficient to afford the Board and the parties an opportunity to respond to the issue, may preclude judicial review based on that issue. The order of presentation is as follows' 1. The County Administrator's report and recommendation. 2. Claimant's presentation. 3. Witnesses who oppose the Claimant's position. 4. Rebuttal by the Claimant. 5. If new information is presented by the Claimant, then rebuttal by the witness in opposition. Any person that is interested in this matter may challenge the qualification of any Commissioner to participate in the hearing and decision. Such challenge must state facts relied upon by the party to a Commissioner's bias, prejudgment, personal interest, or other facts from which the party has concluded that the Commissioner should not participate as they are not impartial. Such challenge must be made prior to the commencement of the public hearing, and will be incorporated into the record of this hearing. Does anyone wish to challenge any commissioner's ability to hear this matter? If so, please say so now? Hearing no challenges, I will proceed. Pagel of 2 ny a afforded an opportunity to make any closing comments. The Board may limit the time period for presentations. Cross-examination of witnesses will not be allowed. A witness who wishes, during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified, but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. Continuances: The grant of a continuance or record extension shall be at the discretion of the Board. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing or leave the written record open for at least seven days for additional written evidence. If at the conclusion of the hearing the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other parties to submit final written arguments but no new evidence in support of the application. Pre-hearing Contacts Biases Conflicts of Interests Do any of the Commissioners have any ex-parte contacts, prior hearing observations, biases, or conflicts of interest to declare? If so, please state the nature and extent of those. Does any party wish to challenge any Commissioner based on ex-parte; contacts, biases or conflicts of interest? (Hearing no challenges, I shall proceed.) -6;~/g Y~`V)T EQ ~~A Community Development Department Planning Division Building Safety Division Environmental Health Division MAN 4A . - 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX(541)385-1764 MEMORANDUM http:,(/www.co.deschutes.or.us/cdd/ DATE: July 20, 2005 TO: Board of County Commissioners FROM: Paul Blikstad, Associate Planner RE: Public hearing on the proposed plan amendment/zone change for a surface mine in the Millican Valley area for 4-R Equipment, LLC. APPLICATION INFORMATION: 4-R Equipment (Ron Robinson) has applied for a plan amendment arid zone change on approximately 365 acres from Exclusive Farm Use - Horse Ridge subzone (EFU-HR) to Surface Mining (SM). The property also has a Wildlife Area (WA) combining zone, designated as antelope habitat, and is also partially in the Landscape Management (LM) combining zone associated with Highway 20 East. A portion of the property is also zoned Flood Plain (FP) in the area described as "dry river" on the Flood Insurance Rate Map. The property is mostly surrounded by land under the administation of the Bureau of Land Management, with four privately-owned parcels adjacent to the subject 365 acres. The subject property is located at the intersection of Highway 20 East and Spencer Wells Road in the Millican Valley area, below Pine Mountain. The proposed surface mine is located on the south side of Highway 20 just after cresting the top of Horse Ridge heading east on Highway 20. The site is approximately three miles west of the Millican rural commercial area. The applicant is requesting an amendment to the County Comprehensive Plan to include the subject property in the County's inventory of mineral and aggregate resources, and to rezone the property for surface mining. According to the applicant's burden of proof statement and exhibits (including a geotechnical report), the property has approximately 17' million cubic yards of rock (basalt) which is identified as exceeding ODOT's standards for highway construction aggregate. The following mining activities were proposed on the site: blasting, excavation, sorting, crushing and stockpiling. APPLICATION PROCESS TO DATE: These applications were referred to the County Hearings Officer for a public hearing. Two public hearings on the applications were held, one on February 15, 2005, and the second on April 20, 2005. Board Memo File Nos. PA-04-8/ZC-04-6 Page 1 of 5 Quality Services Perforined with Pride r.f The Hearings Officer's written recommendation was mailed out on June 2, 2005. Section 22.28.030(C) of Title 22 of the Deschutes County Code specifies that an application for a plan amendment (with the associated zone change) that requires an exception to the Statewide Planning Goals or concerning lands designated forest or agricultural use, shall be heard de novo by the County Commissioners without the necessity of filing an appeal, regardless of the determination of the Hearings Officer. Consequently, the Board is required to conduct a hearing on these applications, and make a decision on whether or not to approve them. A public hearing before the Board is scheduled for Tuesday, August 23, 2005 at 9:00 a.m. ISSUES BEFORE THE HEARINGS OFFICER: The two public hearings before the Hearings Officer included much testimony from property owners in the area. The primary issues brought up in the hearing are as follows: Concerns regarding blasting and crushing of basalt (primarily blasting) and those impacts on the Native American pictographs located in a small canyon north of the proposed mining site, on the Walker property. Additionally, there is an old well (referred to as Coyote Well) used for many years on the same property. Neither of these sites are currently on the County's historic resources inventory. Concerns regarding noise, dust and vibration from the mining, and the potential for water drawdown from use of underground water for the mining operation, which might impact the current residential use (Walker residence and Evans Well Ranch) of nearby property, as well as any future residence, Concerns regarding dust from the mining operation and interference with the Pine Mountain Observatory operation, specifically the use of the existing telescopes at the observatory. The prevailing winds in this area (from the northwest) might put a significant amount of dust in direct conflict with the observatory. Concerns regarding off-road vehicle use on adjacent public land which might be impacted by the dust and noise created from the mining operation. Concerns regarding Impacts to wildlife in the area (antelope, sage grouse, other smaller animals), especially the loss of habitat through the mining operations. Concerns regarding quality of life issues with respect to adjacent properties and uses. Concerns regarding the traffic impacts from the mining operations, specifically on Highway 20. HEARINGS OFFICER'S RECOMMENDATION: The Hearings Officer's written recommendation was mailed out on June 2, 2005. A copy of her recommendation is attached to this memo. Significant findings from that recommendation are summarized below: She found that under Oregon Administrative Rules 660-0023-0180 that the site contains a significant aggregate resource (approximately 17 million cubic yards of aggregate material). The Hearings Officer found that the "impact area" for the proposed mining site Board Memo File Nos. PA-04-8/ZC-04-6 Page 2 of 5 i far exceeds the 1,500 foot standard under OAR 660-0023-0180(5)(a), and includes uses as far away as the Pine Mountain Observatory (approximately 6.5 miles to the southeast). She found that the proposed surface mine will create noise, dust and vibration impacts that will conflict with residential uses within the impact area, as well as that dust will affect the operations of the Pine Mountain Observatory and the use of the ORV trails. Additionally, the Hearings Officer found that the applicant did not provide sufficient evidence to support a conclusion that the proposed minimization efforts will (1) limit noise; (2) minimize dust; and (3) protect surrounding properties from vibration damage. And lastly, the Hearings Officer found that there is insufficient evidence in the record to address (1) whether the proposed mining activities will affect the valley water supply and/or convert agricultural land to other uses; (2) if the water supply is affected, whether the impact would violate the ORS 215.296(1) standard; or (3) what minimization efforts the applicant proposes to address these concerns. Based on these findings, the Hearings Officer found on page 19 of the written recommendation the following: "Based on the preliminary findings adopted above, the Hearings Officer concludes (1) that only the approval criteria set forth in OAR 660-023-0180 apply to an application to permit mining activity on the subject property, (2) that there is insufficient evidence to approve the application, as the applicant has not identified minimization measures that may avoid or minimize conflicts to the extent that they do not have to be considered in an ESEE analysis conducted pursuant to OAR 660-023-0180(5)(d); and (3) the applicant has not submitted an ESEE analysis to address the identified conflicts. An ESEE (Economic, Social, Environmental and Energy consequences) analysis of the proposed use is required in deciding whether to allow, limit or prohibit a conflicting use (in this case a use that may conflict with the proposed mining operation). This type of analysis is required under Oregon Administrative Rules 660-023-0040 and 660-023-0180(5)(d). The Hearings Officer found that she cannot recommend approval of the proposed changes based on a lack of evidence and submittals by the applicant. BOARD ACTION: The Board will need to make a decision on the applicant's proposal. As stated above, the applicant has waived the 180-day review period established in the OAR's. The aggregate resource on this site has been determined to be significant by the Hearings Officer under OAR 660-023-0180(3). The Board will need to confirm the Hearings Officer's findings of significance. If the resource is determined to be significant, it is required to be placed on the County's aggregate and mineral resource inventory in the County Comprehensive Plan. The Hearings Officer also determined that the impact area for the proposed site varies (see findings on pages 9-10 of the Hearings Officer's recommendation) based on the existing uses in the surrounding area. The Board will need to determine whether the Hearings Officer's identifed impact area is appropriate. Board Memo File Nos. PA-04-8/ZC-04-6 Page 3 of 5 I -b d The Hearings Officer found that the applicant has not provided enough information/evidence to determine that the noise, dust and vibration impacts, as well as impacts on agricultural practices, can be minimized (as required under OAR 660-023-0180(5)(c)). The Administrative Rule requires that the measures specified by the local government to minimize the identified conflicts must be "reasonable and practical." Staff believes that the applicant must provide additional information/evidence as to how the mining impacts can be minimized, and the Board will need to determine whether the measures proposed by the applicant are reasonable and practical. If the Board determines that the applicant's proposed minimization measures are appropriate and will minimize all the identified conflicts, mining is allowed at the site and no ESEE analysis is required (see OAR 660-023-0180(5)(c)). Because the Hearings Officer could not find that all the identified impacts were minimized, she determined that an ESEE analysis is required by OAR 660-023-0180(5)(d) to make the appropriate findings to allow mining. If the applicant cannot provide the information/evidence to support findings by the Board that the impacts can be minimized, the applicant must submit a detailed ESEE analysis of the identifed conflicts, as prescribed under OAR 660-023-0180(5)(d). OAR 660-023-0180(5)(d) states that: "The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, local government shall. determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site." Staff believes that this language, along with subsection (5)(e), gives the Board discretion whether to allow mining at this site. Included within the ESEE analysis is a program to achieve the goal (whether to allow, limit or prohibit identified conflicting uses to the mining site). The standards specified for achieving the goal in this analysis could have an impact on the existing uses within the Hearings Officer's prescribed "impact area." The ESEE analysis would have to be adopted by the Board as part of the surface mining element of the County Comprehensive Plan. If the resource at the site is determined to be significant, the Plan Amendment must be approved to place the proposed site on the County's mineral and aggregate resource inventory. This will not necessarily allow any mining of the resource, but will allow the resource to be protected. If the Board finds that the identified impacts are minimized, or adopts an ESEE consequences determination to allow mining, the site will be zoned for surface mining as part of the zone change request. If the zone change is approved, the applicant would be required at some future date to apply for site plan review to initiate surface mining under Chapter 18.52 of Title 18 of the Deschutes County Code. THE FILE: The existing file for the proposed plan amendment/zone change request contains several hundred pages, including several letters of opposition. Tammie Walker, who has a home near the proposed mine, submitted the most letters and exhibits. See the attached exhibit list. The exhibits submitted by the opponents are all directed at the issues listed above. As you can gather from the issues, this is a contentious matter, and one that may be appealed to LUBA Board Memo File Nos. PA-04-8/ZC-04-6 Page 4 of 5 either way. The applicant has waived the required 180-day review period on these applications, so there is no specific time constraint on making a decision. am submitting for your review a copy of the Hearings Officer's recommendation, Oregon Administrative Rules 660-023-0180, Mineral and Aggregate Resources, and the list of exhibits for the file. Feel free to contact me at your convenience for any questions on this matter. Board Memo File Nos. PA-04-8/ZC-04-6 Page 5 of 5 h bd -B DESCHUTES COUNTY HEARINGS OFFICER RECOMMENDATION TO THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS FILE NUMBERS: PA-04-8, ZC-04-6 HEARING DATES: Tuesday, January 18, 2005, 6:30 p.m. and Wednesday, April 20 in the Barnes and Sawyer Hearings Room, 1300 NW Wall Stre X,129466 APPLICANT/ 4-R Equipment, LLC OWNER: P.O. Box 5006~~a4 Bend, OR 97708 A MAILED AGENT: Robert S. Lovlien ~ COUNTY Bryant Lovlien & Jarvis, P.C. P.O. Box 1151 Bend, OR 97709 ~ZOZ6L~'~9 REQUEST: A plan amendment and zone change for 365 acres from Exclusive Farm Use (EFU-HR) to Surface Mining (SM). STAFF CONTACT: Paul Blikstad, Associate Planner 1. APPLICABLE CRITERIA: A. Title 22 of the DCC, the Development Procedures Ordinance B. OAR 660 Division 23, Procedures and Requirements for Complying with Goal 5 C. OAR 660-012-0060, Plan and Land Use Regulation Amendments D. OAR 660-015, Statewide Planning Goals NOTE: OAR 660-023-0180(9) provides that only those approval criteria set forth in OAR 660- 023-0180 may be used to decide whether to allow mining of a significant aggregate resource. Eugene Sand and Gravel v. Lane County, 44 Or LUBA 50, 96, rev'd and remanded on other grounds, 189 Or App 21, 74 P3d 1085 (2003). Therefore, this recommendation does not include findings that address DCC Titles 18 and 23. FINDINGS OF FACT: A. LOCATION: The subject property is located in the Millican Valley, approximately 25 miles east of Bend along US Highway 20. The property has two assigned addresses and is identified on County Assessor's map 19-15 as tax lots 902, 1000 and 1001. Tax lot 902 has an assigned address of 57600 Spencer Wells Road, and tax lot 1001 has an assigned address of 57720 Spencer Wells Road. All three tax lots are located within Section 30 of Township 19 South, Range 15 East. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 1 E B. SITE DESCRIPTION: The subject property is 385 acres in size, is level to gently rolling and has a vegetative cover of primarily sagebrush. No structures exist on the site. The property is bisected by Highway 20; a majority of the property is located south of the highway. A dry creek bed is located on the property, south of Highway 20. That portion of the property is a designated floodplain on the county Flood Insurance Rate Map. C. LOT OF RECORD: The record in this matter does not indicate the legal lot status of tax lots 902 and 1001. A prior conditional use permit on tax lot 1000 (CU-95-36) for a lot of record dwelling determined that the tax lots identified as 19-15, 1000 and 19-14-25, 1000 together form one legal lot. The applicant has not requested a legal lot detemination under these plan amendment and zone change applications. Staff notes that the Assessor's records indicate that the applicant also owns the tax lot identified as 19-14-25, 1000. This recommendation does not address the legal status of the three tax lots as lots of record. D. ZONING: The site is zoned Exclusive Farm Use - Horse Ridge subzone (EFU-HR) and is designated Agriculture and Antelope Habitat on the County Comprehensive Plan map. A portion of the property is also zoned Flood Plain (FP), per Flood Insurance Rate Map (FIRM) 41017C0375C. This flood plain zone is associated with the name "Dry River" on the FIRM map. The property is also within the Wildlife Area (WA) and Landscape Management (LM) combining zones. E. SURROUNDING ZONING: The property abuts public lands administered through the Bureau of Land Management (BLM), identified on County Assessor's maps as 19-15, 100, 900; 19-14, 3300; 19-14-25, 100, 1100. There is also some private land directly west of the property (19-14-25, 800, 801, 802). Privately owned property is also located north of Highway 20, across from the terminus of Spencer Wells Road (Walker Property). Both the public and private lands are zoned Exclusive Farm Use (EFU-HR), with Flood Plain zoning in the Dry River area, as well as having the WA and LM combining zones. F. PROPOSAL: The applicant requests a post-acknowledgement plan amendment (PAPA) to the Deschutes County Comprehensive Plan to include the subject property in the County's Inventory of Mineral and Aggregate sites, and to rezone the subject property to Surface Mining. G. AGENCY COMMENTS: The Planning Division mailed notice to affected public agencies and received the following transmittal responses: 1. County Property Address Coordinator. The new address for this parcel is: 57600 Spencer Wells Road. 2. Oregon Department of Environmental Qualms: To operate a Rock Crusher in the State of Oregon the plant may be required to have an Air Contaminate Discharge .Permit from the DEQ, depending on the production. Have the source contact the regional office. Also note that aggregate operations are dusty and the Department has rules on controlling visible emissions with the use of water. Asssociated aggregate activities such as truck and vehicle equipment traffic can cause dust and noise. Please plan this activity so it does not impact the community. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 2 Ex~ k k Suggested Action: Use water to keep the dust from blowing. Construct a berm around noisy activities to prevent noise problems. Is the site going to have land use to operate an asphalt plant? As these types of aggregate operations are established, the Department has observed asphalt plants come and go out of these sites without land use approval. To operate an Asphalt Plant in the State of Oregon, the plant is required to have an Air Contaminate Discharge Permit for the DEQ. 3. Qwest: Qwest does not serve this area. Century Tel provides services in that area. 4. Pacific Power and Light: Central Electric Coop service territory 5. Oregon Department of Land Conservation and Development: I reviewed Deschutes County Post Acknowledgement Plan Amendment (DLCD File No. 016-04, Local file no. PA-04-8, ZC-04-6) to add an aggregate site, located off Highway 20 three and a half miles west of Millican, to the county's inventory of significant aggregate sites. The application complies with the Goal 5 aggregate administrative rule with one minor exception. The hours of operation should be included in the application (OAR 660-023-0180(8)(e). Since the mining application was submitted to you on October 8, 2004, the application technically falls under the revised aggregate rule that went into effect June 25, 2004. The section citations in the application reflect the old rule. For example on page nine of the application OAR 660-023-0180(4) should be OAR 660-023-0180(5). The applicant does not need to submit a revised application to update the section citations. However, someone aware of the revised rule could be confused when reading the application. 6. County Road Department: Spencer Wells Road is a paved County maintained road. The pavement width is approximately 22 feet wide. This road was designed for logging truck traffic. There are less than 50 vehicles per day that use Spencer Wells Road. The use of Spencer Wells Road by traffic created by surface mining will have a minimal impact on the structure of the existing road. 7. Oregon Department of Transportation: Based on my review of the letter describing traffic movement to and from the quarry site, and current and future traffic volumes on US 20, 1 do not believe that the proposed use will have a significant impact on the highway. 8. County Assessor. No comment response. 9. The following agencies did not respond to the notice: Central Electric Cooperative, Oregon. Department of Fish and Wildlife, Oregon Department of Geology and Mineral Industries, Bureau of Land Managment, County Transportation Planner. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 3 ,C K At 6,7 H. PUBLIC COMMENTS: The Planning Division recently mailed notice of the public hearing scheduled for January 18, 2005 to property owners within 750 feet of the subject property and published a notice of the proposal in the Bend Bulletin. A great deal of written and oral testimony was presented during the hearings held on February 15, 2005 and April 20, 2005. The Hearings Officer left the record open for written testimony between February 15, 2005 and April 20, 2005. The written items added to the record are identified on the Exhibits List, which is attached to this recommendation. The items themselves are held in staff files. I. REVIEW PERIOD: The Planning Division deemed this application complete and accepted it for review on November 21, 2004. OAR 660-023-0180(8) provides that a decision regarding a PAPA to allow mining must be made within 180 days of the date the application was deemed complete. However, the applicant tolled the 180 day period from February 15, 2005 until April 20, 2005 to allow for additional evidence to be presented regarding the impact of mining on identified cultural and archaeological resources, and again from April 20, 2005 until the issuance of the Hearings Officer's recommendation. J. SOILS: The subject property consists of four soil types as follows: 55A. Gardone-Borobey complex 0 to 5% slopes: This soil complex is composed of 60% Gardone soil and similar inclusions, 30% Borobey soil and similar inclusions, and 10% contrasting inclusions. The Gardone soil is excessively drained with a rapid permeability and an available water capacity of about 6 inches. The Borobey soil is somewhat excessively drained with a moderately slow permeability and an available water capacity of about 5 inches. The major use of this soil complex is livestock grazing. The NRCS rates this complex as VI-E, with no rating for irrigated land. This soil complex encompasses approximately 90% of the subject property and is not considered a high value soil. The proposed surface mining location is on this soil type. 17A. Blavden loamy sand. 0 to 3% slopes: This soil complex is composed of 85% Blayden soil and similar inclusions and 15% contrasting inclusions. The Blayden soil is well drained with a moderate above the duripan permeability and an available water capacity of about 3 inches. The major use of this soil complex is livestock grazing. The NRCS rates this complex as VI-S, with no rating for irrigated land. This soil complex encompasses approximately 7% of the subject property and is not considered a high value soil. This soil type is located on the east side of the property. 132A. Stookmoor loamy sand 1 to 3% slopes: This soil complex is composed of 85% Stookmoor soil and similar inclusions and 15°x6 contrasting inclusions. The Stookmoor soil is somewhat excessively drained with a rapid over moderately slow permeability and an available water capacity of about 4 inches. The major use of this soil complex is livestock grazing. The NRCS rates this complex as VI-E, with no rating for irrigated land. This soil complex encompasses approximately 2% of the subject property and is not considered a high value soil. This soil type is located in the extreme northeast corner of the property, where no mining is proposed. 53C. Gardone sand, hummocky. 3 to 15% slopes: This soil complex is composed of 85% Gardone soil and similar inclusions and 15% contrasting inclusions. The Gardone soil is excessively drained with a rapid permeability and an available water capacity of Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 4 F --416'A 3 A. about 6 inches. The major rates this complex as VI-E encompasses approximately value soil. This soil type is where no mining is proposed. PRELIMINARY FINDINGS: use of this soil complex is livestock grazing. The NRCS with no rating for irrigated land. This soil complex 1% of the subject property and is not considered a high located in the extreme southeast comer of the property, OREGON ADMINISTRATIVE RULES OAR 660-23-180. Mineral and Ag reaate Resources. (1) For purposes of this rule, the following definitions apply: (a) "Aggregate resources" are naturally occurring concentrations of stone, rock, sand, gravel, decomposed granite, limestone, pumice, cinders, and other naturally occurring solid materials commonly used in road building or other construction. "Mineral resources are those materials and substances described in ORS 517.750(7) but excluding materials and substances described as "aggregate resources" under subsection (a) of this section. (2) Local governments are not required to amend acknowledged inventories or plans with regard to mineral and aggregate resources except in response to an application for a post acknowledgement plan amendment (PAPA) or at periodic review as specified in OAR 660-023-0180(8). The requirements of this rule modify, supplement, or supercede the requirements of the standard Goal 5 process in OAR 660-023-0030 through 660-023-0050, as follows: (a) A local government may inventory mineral and aggregate resources throughout its jurisdiction, or in a portion of its jurisdiction. When a local government conducts an inventory of mineral and aggregate sites in all or a portion of its jurisdiction, it shall follow the requirements of OAR 660-023-0030 except as modified by subsection (b) of this section with respect to aggregate sites. When a local government is following the inventory process for a mineral or aggregate resource site under a PAPA, it shall follow the applicable requirements of OAR 660-023-0030, except where those requirements are expanded or superceded for aggregate resources as provided in subsections (b) through (d) of this section and sections (3) (4) and (8) of this rule, Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 5 Ex~,'6,.-f B (b) Local governments shall apply the criteria in section (3)or (4) of this rule, whichever is applicable, rather than OAR 660-023-0030(4) in determining whether an aggregate resource is significant; (c) Local governments shall follow the requirements of section (5) or (6) of this rule, whichever is applicable, in deciding whether to authorize the mining of a significant aggregate resource site, and OAR 660-023-0040 through 660-023-0050 in deciding whether to authorize mining of a significant mineral resource; and (co For significant mineral and aggregate sites where mining is allowed, except for aggregate sites that have been determined to be significant under section (4) of this rule, local governments shall decide on a program to protect the site from new off-site conflicting uses by following the standard ESEE process in OAR 660-023-0040 and 660-023-0050 with regard to such uses FINDING: The applicant has submitted a PAPA to the County for review. The applicant has stated that the primary resource of the subject property is quality basalt. The applicant states that: "There is estimated to be more than 17 million cubic yards of in- place rock, which is identified as offering excellent construction material properties relative to other resources available in Deschutes County." The applicant states on page 8 of the burden of proof the following: "Laboratory testing indicates the entire body of basalt rock (over 17 million cubic yards) easily exceeds ODOT's standards for highway construction aggregate." The PAPA submitted is for an aggregate resource rather than a mineral resource, as defined in OAR 660-023-0180(1) above. The proposed resource, according to the applicant's submittal, is a naturally occurring concentration of rock, sand and gravel, commonly used in road building or other construction. Consequently, the proposed applications will be reviewed for significance pursuant to OAR 660-023-0180(4). Additionally, the proposed application will be reviewed under OAR 660-023-0180(5) and (6) to decide whether to authorize mining. (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality and location of the resource demonstrates that the site meets any one of the criteria in sections (a) through (c) of this section, except as provided in subsection (co of this section; (a) A representative set of samples of aggregate material in the deposit on the site meets Oregon Department of Transportation (ODOn specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; FINDING: The applicant submitted a geotechnical report from J. Andrew Siemens of Siemens & Associates dated June 16, 2004. The report states that: "laboratory testing indicates that the entire body of basalt rock (over 17 million cubic yards) easily exceeds ODOT standards for highway construction aggregate." The estimated 17 million cubic Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 6 yards, which converts to approximately 44,200,000 tons', is well beyond the minimum 500,000-ton threshold listed above. This report states that the type of rock encountered at this site is "far superior to most basalt found in Deschutes County." Additionally, the Executive Summary of the report notes that "the general overburden can be used for more general purposes and the sand and gravel of Stratum 2g could be skimmed and processed as rounded/subrounded agggregate," possibly used to batch Portland cement concrete and as a free-flowing drainage aggregate. The report also addresses the potential for sale of lightweight fill. No testimony was submitted during the proceedings before the Hearings Officer that undermines the evidence presented by the applicant as to the amount and type of aggregate material present on the site. Therefore, the Hearings Officer concludes that the site contains a "significant aggregate resource" as that term is defined in OAR 660- 023-0180(3)(a). The Hearings Officer also concludes that because the site contains a significant aggregate resource under OAR 660-023-0180(3)(a), it is not necessary to address whether there is significant aggregate on site pursuant to OAR 660-023- 0180(4). However, in the interest of providing a complete recommendation to the Board of County Commissioners, the Hearings Officer adopts findings regarding OAR 660-023- 0180(4). (b) The material meets local government standards establishing a lower threshold for signiricance than subsection (a) of this section; or (c) The aggregate site is on an inventory of significant aggregate sites in an acknowledged plan on the applicable date of this rule. FINDING: The County has not developed any standards that establish a lower threshold for significance than is identified in OAR 660-023-0180(3). This property is not listed on the County's inventory of mineral and aggregate resources. Therefore, OAR 660- 02300180(3)(b) and (c) do not apply. (co Notwithstanding subsections (a) an (b) of this section, except for an expansion area of an existing site if the operator of the existing site on March 1, 1996 had an enforceable property interest in the expansion area on that date, an aggregate site is not significant if the criteria in either paragraphs (A) or (B) of this subsection apply: (A) More than 35 percent of the proposed mining area consists of soil c/assfed as Class I on Natural Resource and Conservation Service (NRCS) maps on the date of this rule; or (B) More than 35 percent of the proposed mining area consists of soil classified as Class ll, or of a combination of Class H and Class I or Unique soil on NRCS maps available on the date of this rule, ' The rough rule of thumb is one cubic yard = 2.6 tons, according to Mark Darienzo, DLCO Mineral/Aggregate Specialist Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 7 Exh,12ff a FINDING: The soils information provided by the applicant indicates that all of the soils on the property are Class VI soils. That evidence is undisputed. Therefore, OAR 660- 023-0180(3)(d) does not apply. (4) Notwithstanding section (3) of this rule, a local government may also determine that an aggregate resource site on farmland is significant if subsections (a) and (b) of this section apply or if subsection (c) of this section applies: (a) The quantity of material proposed to be mined from the site is estimated to be 2,000,000 tons of aggregate material or less for a site in the Willamette Valley, or 500,000 tons or less for a site outside the Willamette Valley; and (b) Not more than 35 percent of the proposed mining area consists of soil (A) Classified as Class I on Natural Resource and Conservation Service (NRCS) maps available on June 11, 2004; or (B) Classified as Class 11, or a combination of Class H and Class I or Unique soil, on NRCS maps on June 11, 2004, unless the average thickness of the aggregate layer within the mining area exceeds the amounts specified in paragraph (B) of subsection (3)(ao of this rule, or (c) A local land use permit that allows mining on the site was issued prior to April 3, 2003, and the permit is in effect at the time of the significance determination. FINDING: The site includes approximately 17 million cubic yards of aggregate material, which is estimated to be 44,200,000 tons. The subject property does not include Class I, II or unique soils. Accordingly, OAR 660-023-0180(4)(a), (b) and (c) do not apply. (5) For significant mineral and aggregate sites, local governments shall decide whether mining is permitted. For a PAPA application involving an aggregate site determined to be significant under section (3) of this rule, the process for this decision is set out in subsections (a) through (g) of this section. A local government must complete the process within 180 days after receipt of a complete application that is consistent with section (8) or by the earliest date after 180 days allowed by local charter. FINDING: The Hearings Officer finds the proposed aggregate site includes "significant aggregate resources" as that term is defined in OAR 660-023-0180(3). Therefore, the county is obligated to review this application against the approval criteria set out in OAR 660-023-0180(5) and (6). The plan amendment and zone change applications will be processed within the required 180 days, as the applicant has agreed to toll the time for decision on two separate occasions. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 8 A,-bl,f -3 (a) The local government shall determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities. The impact area shall be large enough to include uses listed in subsection (b) of this section and shall be limited to 1,500 feet from the boundaries of the mining area, except where factual information indicates significant potential conflicts beyond this distance. * * * FINDING: The applicant proposes to extract the basalt from the site in three phases, one encompassing 32 acres, the second encompassing 33 acres and the final phase encompassing 80 acres. The following mining activities will occur on-site: blasting, excavation, sorting, crushing and stock-piling. The applicant will develop a watering pond on-site to suppress dust. The applicant anticipates that reclamation would occur on an on-going basis, with the site being finally reclaimed as a natural area, with native grasses and shrubs. The applicant anticipates that approximately 6-8 truck trips would be made on a daily basis. (Burden of Proof Statement 2-3.) However, the applicant used 68 round-trips per day in estimating the traffic impact the mining activity would have (Burden of Proof Statement 11.) According to the applicant, the higher number of trips is based on the estimated traffic generated during the peak construction season (summers), when the demand for aggregate will be higher. The applicant identified a "small recreational site" west of the property, Spencer Wells Road and Highway 20 as the only uses within the 1,500 foot impact area. (Burden of Proof Statement 10). Testimony indicate; that the aggregate extraction activities outlined above will create conflicts with uses identified in the table below. The table identifies the types of uses that will be affected, their estimated distance from the subject property, and the types of potential conflicts identified. The distances are based on testimony entered into the record. Existing Use/Activity Distance: from Subject Property Potential Conflict 1. Walker Residence 2,300 feet dust, noise, traffic, .vibrations, water drawdown, quality of life 2. Coyote Well historic site 1,350 feet vibrations water drawdown 3. Pictographs 1,950 feet vibrations, dust 4. Best Shelter BLM 1,775 feet dust, noise, traffic, vibrations 5. Pine Mountain Observatory 6.5 miles dust 6. Sage grouse nesting site (lek) 1.25 miles dust, noise, vibrations, interference with nesting sites & migration patterns 7. Evans Well Ranch South of subject property dust, noise, traffic, vibrations, water drawdown, visual im act, quality of life 8: Highway 20 bisects property dust, additional traffic may cause traffic safe issue 9. Wildlife Area Combining_ applies to subject mining activities would Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 9 6;4 a Zone (Antelope) property and disturb antelope surrounding area 10. ORV recreational trails BLM land to west, dust, noise, traffic, quality of north and east recreational experience 11. Other residences Varies ualit of life; traffic OAR 660-023-0180(5)(a) provides for a 1,500 foot impact area "except where factual information indicates significant conflicts beyond this distance." Staff recommends a one-half mile (2,640 square foot) radius as an impact area because the county's Surface Mining Impact Area combining zone has been applied to property within one-half mile of other mining sites within the county. Testimony indicates that the prevailing winds are from the northwest to the southeast, and that dust generating activities on the west side of the valley, where the subject property is located, have an impact on property far to the southeast. Testimony also indicates that the activities of the Pine Mountain Observatory include instruments that are extraordinarily sensitive to dust. Therefore, the Hearings Officer concludes that it is appropriate to designate an impact area that includes the Pine Mountain Observatory. The Hearings Officer concludes that "factual information" submitted to the county during the course of these proceedings justify an expansion of the 1,500 foot impact area to include existing and approved uses within % mile to the north of the northern boundary of the subject property; two miles west of the western boundary (to include the Horse Ridge grade on Highway 20); 1 mile south (to include agricultural activities lying on the southern end of the valley); 6.5 miles to the southeast (to include the Pine Mountain Observatory) and 3 miles to the east (to include the sensitive bird and mammal sites and ORV trails). (b) The local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, "approved land uses" are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: (A) Conflicts slue to noise, dust or other discharges with regard to those existing and approved uses and associated activities (e.g. houses and schools) that are sensitive to such discharges, (B) Potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the local transportation plan. Conflicts shall be determined based on clear and objective standards regarding sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 10 plan and implementing ordinances. Such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight, and capacity that haul other materials; (C) Safety conflicts with existing public airports due to bird attractants, i.e., open water impoundments as specified under OAR Chapter 660, Division 013; (D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; (E) Conflicts with agricultural practices; and (F) Other conflicts for which consideration is necessary in order to carry out ordinances that supercede Oregon Department of Geology and Mineral Industries (DOGAMI) regulations pursuant to ORS 517.780. FINDINGS: A. General Finding Existing and approved land uses within the impact area include: (1) the Walker residence; (2) wildlife combining zoning designation to protect antelope habitat; (3) a sensitive bird and mammal site designation to protect sage grouse; (4) ORV trails; (5) agricultural uses, including cattle grazing; (6) the Pine Mountain Observatory; (7) the unincorporated community of Millican, consisting of a dwelling and a store and (8) Highway 20 and Spencer Wells Road. Testimony presented during the hearings have identified the location of Coyote Well and Native American pictographs and the possible location of burrowing owl and pygmy rabbit dens, however, neither of those sites/species have been included on a county Goal 5 inventory, and no program has been adopted to protect them. Therefore, they may not be considered under OAR 660-023-0180(5)(D). Similarly, the impact on the quality of life of residents and visitors to the Millican Valley and aesthetic concerns may not be considered, because OAR 660-023-0180(5) limits the types of conflicts that may be considered to those listed in that section. Morse Bros. Inc. v. Columbia County, 37 Or LUBA 85 (1999), aiTd 165 Or App 512 (2000). In addition, while many opponents testified that the quality and quantity of aggregate that is located on this site is not needed at all or is obtainable elsewhere, the Hearings Officer notes that neither one of those factors are relevant to whether mining may be allowed under OAR Chapter 660, division 23 B. Noise, dust and vibration (OAR 660-023-0180(5)(b)(A)) Testimony and evidence supports a finding that the proposed mining activity would create noise, dust and vibration impacts that will conflict with residential uses within the impact area. In addition, testimony supports a finding that dust will affect the operations of the Pine Mountain Observatory and the use of the ORV trails. To the extent identified Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 11 E-c 1 6 B cultural resources may be considered to be "existing uses" under this paragraph, the Hearings Officer notes that there was testimony that vibrations from mining activities may adversely affect the pictographs, Coyote Well and existing habitat on site. C. Traffic Impacts (OAR 660-023-0180(5)(b)(B)) As indicated above, the only two public roads in the impact area are Highway 20 and Spencer Wells Road. The conceptual site plan drawing indicates that access to the mining site is proposed to be from Spencer Wells Road, with no direct access to Highway 20. Comments were received from the Oregon Department of Transportation and the County Road Department stating that they believe the traffic impacts on these two roads from the proposed mining operation will be minimal. The topography in this area is generally level and the sight distances should not be a problem for the mining operation. Testimony from opponents expressed concerns regarding traffic safety, including interference with safe boarding of school buses, wear on road shoulders where trucks move to the far right of roads to let faster vehicles pass; impaired visibility because of dust; and conflict with bicyclists on the road. However, the opposing testimony does not identify whether those impacts, if they occur, violate ordinances or regulations pertaining to "sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan" such that they may be evaluated pursuant OAR 660-023-0180(5)(b)(B). Without some connection between the opponents' testimony and applicable road development standards, the Hearings Officer concludes that such concerns may not be considered. D. Goal 5 Resources (OAR 660-023-0180(5)(b)(D)) The subject property is within a wildlife area combining zone. This area is identified on the County Comprehensive Plan map as antelope range. The site is also within 1.25 miles of a sensitive bird and mammal site. E. Agricultural Practices (OAR 660-023-0180(5)(b)(E) The impact area includes working ranches. Testimony indicates that the primary agricultural product is beef cattle, although sheep and dry land rye have been produced in the valley. Keith and Janet Nash, who operate of Evans Well Ranch, testified that there is insufficient evidence to support a conclusion that mining will not adversely affect the availability of water for agricultural purposes. In addition, the Nashes are concerned that approval of the proposed mine will create pressure to convert agricultural land to other uses. Finally, the Nashes expressed concern that the proposed mining activities may result in pollutants entering the water table from the use of mining machinery. F. Other Conflicts Identified in OAR 660-023-0180(5)(b) OAR 660-023-0180(5)(b)(C) and (F) do not apply, as they pertain to the establishment of open water areas near airports, and regulations implementing in lieu of rules adopted by DOGAMI. (c) The local government shall determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. To determine whether the proposed measures would minimize conflicts to agricultural practices, the requirements of ORS 215.296 shall be followed. rather than the Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 12 4 ~3 requirements of this section. If reasonable and practicable measures are identified to minimize all identified conflicts, mining shall be allowed at the site and subsection (CO of this section is not applicable. If identified conflicts cannot be minimized, subsection (c# of this section applies. FINDING: The applicant has proposed the following minimization efforts to address the conflicts identified above: A. Noise, dust and vibration: The applicant contends that most of its mining operation will occur below grade and therefore the noise, dust and visual impacts will be minimized. Further, the applicant contends that blasting will occur on an infrequent basis, and the amount of blast will be limited to ensure that off-site impacts will be minimized. The applicant produced seismic studies to support its claim that blasting vibrations will not affect the pictographs, Coyote Well or residential uses on the Walker property. The applicant proposes to operate from 7 a.m. until 10 p.m., five days a week. However, the applicant has also indicated that those hours are the maximum hours of operation, and shorter hours may be established by the county to limit dust, noise and vibrations to normal working hours (8 a.m. until 5 p.m., Monday through Friday). The applicant has also indicated that it will not operate outside of daylight hours. The applicant also proposes to establish a pond to store water to be used for dust suppression. The Hearings Officer concludes that the applicant has not provided sufficient evidence to support a conclusion that its proposed minimization efforts will (1) limit noise; (2) minimize dust; and (3) protect surrounding properties from vibration damage. B. Traffic As stated earlier, the applicant proposes to access the subject property via Spencer Wells Road. The applicant's traffic impact study indicates that the additional trips generated by the proposed mining activity will not change the level of service on either Spencer Wells Road or Highway 20. Comments from ODOT and the county road department support that conclusion. The Hearings Officer concludes that provided the applicant demonstrates compliance with county road standards for access, traffic impacts from the proposed mining activity is minimized. C. Impact on Identified Goal 5 Resources The Fish and Wildlife chapter of the County Comprehensive Plan (chapter 23.104) specifies policies for the antelope range as follows: 8. The antelope range and antelope winter range identified on the Big Game Habitat-Wildlife Area Combining Zone Map included in the Resource Element of this plan shall be protected by a wildlife area combining zone. The minimum lot size for new parcels shall be 320 acres. The Rural Service Centers of Brothers, Hampton and Millican shall be exempt from the provisions of the Wildlife Area Combining Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 13 EX G►, h~ ~F Zone. 10. The County shall notify the Oregon Department of Fish and Wildlife of all land use applications for lands located in the WA Combining Zone or the Sensitive Bird and Mammal Overlay Zone. Staff notified ODFW of the proposed plan amendment/zone change applications, and received no response. If the plan amendment/zone change applications are approved, the proposed surface mining operation will require site plan review, which will also involve notice to ODFW. Staff notes that the applicant submitted a copy of a letter from Steven George, Deschutes District Wildlife Biologist with ODFW. Mr. George has agreed to the wording of a condition that would serve to protect the antelope range designation in this area. The letter states: The following proposal was submitted by Gary Hostick, ESI, concerning mitigation for Antelope Range, winter protection guidelines: Blasting and crushing will cease during periods of severe winter weather conditions that may force antelope with no alternative winter range into the area adjacent to the rock pit. The Oregon Department of Fish and Wildlife District Biologist (ODFWDB) will monitor severe winter conditions based on snow depth, temperature, and numbers of antelope within 2 miles of the rock pit. ODFWDB will notify JRSI when cessation of crushing and blasting is deemed necessary by the ODFWDB due to antelope winter range conditions. Cessation of blasting and crushing may be necessary within 24 hours notice due to the nature of winter storms. JRSI may choose to remove crushing equipment if crushing/ blasting cessation is necessary, and this removal will take up to two weeks from the date of notice of cessation. ODFW has reviewed this wording and we do not have any suggested modifications. These suggested mitigating measures should be sufficient to protection antelope during the winter months. ODFW looks forward to reviewing the remaining measures that Jack Robinson and Sons, Inc. will put into the ESEE analysis to mitigate the effects of the surface mining activity." The proposed surface mining operation is within 1.25 miles of a sensitive bird and mammal site. This site is a sage grouse site (lek), listed as site no. DE 0999-01 on the County's wildlife inventory, located in section 26 of Township 19 South, Range 14 East. The mining site is located outside of the Sensitive Bird and Mammal (SBM) combining zone, and does not require SBM review under chapter 18.90 of Title 18. The subject property is also located within a Landscape Management (LM) combining zone. The LM zone extends parallel to and at a distance of one-quarter mile in each direction perpendicular from the centerline of Highway 20. The applicant has proposed a 600-foot buffer area adjacent to the highway, in which no surface mining would occur, including any stockpiling or structures. Staff believes that this buffer will help preserve the LM corridor, and also given the remote location of the site and the lack of any significant vegetation (virtually no trees), the purposes of the LM zone will be met by the proposed change to allow mining. The Hearings Officer concludes that protections imposed as a result of a county Goal 5 program to preserve habitat are the only minimization protections that. may be imposed Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 14 on a mining operation reviewed pursuant to OAR 660-023-0180(5)(c). In this case, the applicant has agreed to a condition of approval to protect antelope habitat. With respect to the sage grouse site, the subject property is not located within an area that requires SBM review under the DCC; therefore, no additional protections may be imposed to minimize the impacts under OAR 660-023-0180(5)(c). D. Agricultural practices OAR 660-023-0180(5)(c) requires that conflicts resulting from the proposed mining activities be evaluated pursuant to the "requirements of ORS 215.296." The Hearings Officer interprets this to mean that a conflict between mining and agricultural practices is minimized if the conflict will not "force a significant change in accepted farm and forest practices on surrounding land devoted to farm or forest uses" or "significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." ORS 215.295(1)(a) and (b). In this case, the only agricultural activities that have been identified are cattle grazing and some dryland rye and hay. The identified conflicts with accepted agricultural practices include the potential drawdown of aquifers used for agricultural uses, the introduction of mining-related pollutants into the aquifer, and the conversion of agricultural land to other uses. There is insufficient evidence in the record to address (1) whether the proposed mining activities will affect the valley water supply and/or convert agricultural land to other uses; (2) if the water supply is affected, whether the impact would violate the ORS 215.296(1) standard; or (3) what minimization efforts the applicant proposes to address the identified concerns, if the board of county commissioners concludes they are valid. The Hearings Officer concludes that there is insufficient evidence to support a conclusion that mining, as proposed, will not create the conflicts identified. Therefore, this conflict is not minimized. (d) The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, the local government shall determine the ESEE consequences of either allowing, limiting or not allowing mining at the site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: (A) The degree of adverse effect on existing land uses within the impact area; (B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and (C) The probable duration of the mining operation and the post- mining use of the site. FINDING: As noted above, the Hearings Officer concludes that the proposed mining will cause, noise, dust, vibration and conflicts with uses sensitive to those impacts. Further, testimony indicates that the proposed mining activity may have an impact on the quality and quantity of water available for domestic and agricultural activities. The Hearings Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 15 Officer finds that these conflicts require an ESEE analysis. The applicant has not provided an ESEE analysis. Staff prepared an ESEE analysis following the process set out at OAR 660-023-0040. (See pp. 15-20 of the January 6, 2005 staff report.) However, the ESEE analysis conducted pursuant to OAR 660-023- 0180(5)(d) is more limited than the process outlined in OAR 660-023-0040. Further, the ESEE analysis conducted by staff does not address impacts identified in the expanded impact area, as staff was not aware that an expanded impact area would be adopted. The Hearings Officer recommends that a new ESEE analysis be performed to address the conflicts identified through the initial hearings process. The county may require that the applicant provide additional evidence to support a conclusion that mining will not result in the conflict identified, provide additional minimization measures to eliminate the conflict and or provide a draft ESEE analysis for the county to review. Hellberg v. Morrow County, - Or LUBA _ (May 17, 2005) slip op 7. (e) Where mining is allowed, the plan and implementing ordinances shall be amended to allow such mining. Any required measures to minimize conflicts, including special conditions and procedures regulating mining, shall be clear and objective. Additional land use review (e.g. site plan review), if required by the local government, shall not exceed the minimum review necessary to assure compliance with these requirements and shall not provide opportunities to deny mining for reasons unrelated to these requirements, or to attach additional approval requirements, except with regard to mining or processing activities: (A) For which the PAPA application does not provide information sufficient to determine clear and objective measures to resolve identified conflicts; (B) Not requested in the PAPA application; or (C) For which a significant change to the type, location or duration of the activity shown on the PAPA application is proposed by the operator. FINDING: The proposed plan amendment/zone change applications, if approved, will require that ordinances amending the comprehensive plan and zoning map be adopted by the Board of County Commissioners, which establish the surface mining (SM) zone, and the associated Surface Mining Impact Area (SMIA) combining zone. When the ordinances are adopted, the property is zoned SM and the applicant can then apply for site plan review to request approval of a mining operation. Site plan review can be done administratively by staff or referred to a public hearing before the County Hearings Officer. The applicant has included as part of the application package a letter from Steven George, Oregon Department of Fish and Wildlife, to the mining operator, recommending a proposed condition for protection of the antelope range. The proposed language should be included as a condition of approval of the zone change. (t) Where mining is allowed, the local government shall determine the post-mining use and provide for this use in the comprehensive plan Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 16 i pit and land use regulations. For significant aggregate sites on Class 1, H and Unique farmland, local governments shall adopt plan and land use regulations to limit post mining use to farm uses under ORS 215.203, uses listed under ORS 215.213(1) or 215.283(1), and fish and wildlife habitat uses, including wetland mitigation banking. Local governments shall coordinate with DOGAMI regarding the regulations and reclamation of mineral and aggregate sites, except where exempt under ORS 517.780. FINDING: The applicant has not proposed a post-mining use, other than it will be reclaimed to the specifications of DOGAMI. However, the applicant has stated that the site will be planted with native grasses, implying that the post-mining use will be for wildlife habitat. The subject property includes only class VI soils, therefore, the requirement that post- mining uses be limited to farm uses or fish and wildlife uses does not directly apply. However, staff believes that any post-mining use should be limited to any use allowed in the EFU zone, which staff believes the subject property should return to when mining on the site is completed and the reclamation work is also completed. The Hearings Officer agrees that if no post-mining use has been identified by the applicant, post-mining uses should be limited to those permitted by the EFU zoning. (8) In order to determine whether information in a PAPA submittal concerning an aggregate site is adequate, local government shall follow the requirements fo this section rather than OAR 660-023-0030(3). An application for approval of an aggregate site following sections (4) and (6) of this rule shall be adequate if it provides sufficient information to determine whether the requirements in those sections are satisfied. An application for a PAPA concerning a significant aggregate site following sections (3) and (5) of this rule shall be adequate if it includes: (a) Information regarding quantity, quality, and location sufficient to determine whether the standards and conditions in section (3) of this rule are satisfied; FINDING: The applicant has submitted a geotechnical report on the quantity, quality and location of the aggregate resource on the subject property, prepared by Siemens & Associates. This evidence is adequate to address OAR 660-023-0180(3). (b) A conceptual site reclamation plan: (Note: Final approval of reclamation plans resides with DOGAMI rather than local governments, except as provided in ORS 517.780) FINDING: The applicant has submitted a conceptual site plan, which lists three phases for the mining operation. The applicant anticipates that mining will occur on the property until the resource is depleted, which the applicant estimates will be twenty years hence at the earliest. The Hearings Officer concludes that the applicant must identify a post- mining use, and must submit a conceptual reclamation plan that will achieve the post- mining use prior to approval of the PAPA. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 17 (c) A traffic impact assessment within one mile of the entrance to the mining area pursuant to section (5)(b)(B) of this rule; FINDING: The applicant has submitted a traffic impact assessment prepared by Ferguson & Associates, Inc. that addresses the impact of the proposed mining operation on roads located within one mile of the entrance to the subject property. (d) Proposals to minimize any conflicts with existing uses preliminarily identified by the applicant within a 1,500 foot impact area; and FINDING: The applicant has proposed to conduct mining operations within the extraction area to minimize noise and dust impacts on residential uses. The applicant proposes to use water to minimize dust in the air and on internal roads. The applicant has agreed to limit mining activities during the time of year when antelope are likely to use the property for browse and shelter. The applicant has also agreed to limit the levels of blasting to minimize vibration and noise. The applicant has not identified any measures to minimize traffic or impact on water drawdown, as the applicant does not believe those impacts will occur. Similarly, the applicant has not submitted proposals to address conflicts extending beyond the 1,500 foot impact area. (e) A site plan indicating the location, hours of operation, and other pertinent information for all proposed mining and associated uses. FINDING: The applicant has submitted a conceptual site plan showing the proposed mining operation. It is divided into three phases, with proposed buffer areas on all sides of the project. The access road is shown extending from Spencer Wells Road, and stockpile areas are indicated adjacent to the phase 2 mining area. The application does not list specific hours of operation, although testimony from the applicant's representatives indicates that the hours of operation will vary throughout the year, with the longest workdays corresponding with the summer light. The applicant has also agreed to limit work time during the winter months to protect antelope cover. (9) Local governments shall amend the comprehensive plan and land use regulations to include procedures and requirements consistent with this rule for the consideration of PAPAs concerning aggregate resources. Until such local regulations are adopted, the procedures and requirements of this rule shall be directly applied to local government consideration of a PAPA concerning mining authorization, unless the local plan contains specific criteria regarding the consideration of a PAPA proposing to add a site to the list of significant aggregate sites, provided. (a) Such regulations were acknowledged subsequent to 1989, and (b) Such regulations shall be amended to conform to the requirements of this rule at the next scheduled periodic review after September 1, 1996, except as provided under OAR 660-023-0250(7). FINDING: The County has not adopted regulations to address PAPAs consistent with this rule. Therefore, the provisions of OAR 660-023-0180 apply directly. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 18 It V. RECOMMENDATION: Based on the preliminary findings adopted above, the Hearings Officer concludes (1) that only the approval criteria set forth in OAR 660-023-0180 apply to an application to permit mining activity on the subject property; (2) that there is insufficient evidence to approve the application, as the applicant has not identified minimization measures that may avoid or minimize conflicts to the extent that they do not have to be considered in an ESEE analysis conducted pursuant to OAR 660-023-0180(5)(d); and (3) the applicant has not submitted an ESEE analysis to address the identified conflicts. Dated this 1 st day of June, 2005. Anne Corcoran Briggs Hearings Officer Mailed thisatay of SL44k9-, 2005. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 19 Dept. of Land Conservation and Development-660-023 Page 19 of 30 660-023-0170 Wilderness Areas (1) For purposes of this rule, "wilderness areas" are those areas designated as wilderness by the federal government. (2) Local governments are not required to inventory wilderness areas using the procedures of OAR 660- 023-0030, except that local governments shall list all federally designated wilderness areas as significant Goal 5 resources as provided under OAR 660-023-0030(5). (3) At periodic review, local governments shall amend acknowledged plans to recognize any wilderness areas designated after the last periodic review or acknowledgment. (4) A local government need not complete the Goal 5 process in OAR 660-023-0040 and 660-023-0050 for wilderness areas unless it chooses to provide additional protection for the wilderness area, such as the regulation of conflicting uses in an impact area adjacent to the wilderness area. Stat. Auth.: ORS 183 & ORS 197 Stats. Implemented: ORS 197.040 & ORS 197.225 - ORS 197.245 Hist.: LCDC 2-1996, f. 8-30-96, cert. ef. 9-1-96 40 660-023-0180 Mineral and Aggregate Resources (1) For purposes of this rule, the following definitions apply: (a) "Aggregate resources" are naturally occurring concentrations of stone, rock, sand gravel, decomposed granite, limestone, pumice, cinders, and other naturally occurring solid materials commonly used in road building or other construction. (b) "Conflicting use" is a use or activity that is subject to land use regulations and that would interfere with, or be adversely affected by, mining or processing activities at a significant mineral or aggregate resource site (as specified in subsection (5)(b) and section (7) of this rule). (c) "Existing site" is an aggregate site that meets the requirements of subsection (3)(a) of this rule and was lawfully operating, or was included on an inventory of significant aggregate sites in an acknowledged plan, on September 1, 1996. (d) "Expansion area" is an aggregate mining area contiguous to an existing site. (e) "Farmland" means land planned and zoned for exclusive farm use pursuant to Goal 3 and OAR chapter 660, division 033. (1) "Mineral resources" are those materials and substances described in ORS 517.750(7) but excluding materials and substances described as "aggregate resources" under subsection (a) of this section. g httv://arcweb.sos.state.or.us/rules/OARS 600/OAR 660/660 023 _html f;x It 0 -8 11/17/7nnd Dept. of Land Conservation and Development-660-023 Page 20 of 30 , . (g) "Minimize a conflict" means to reduce an identified conflict to a level that is no longer significant. For those types of conflicts addressed by local, state, or federal standards (such as the Department of Environmental Quality standards for noise and dust levels), to "minimize a conflict" means to ensure conformance to the applicable standard. (h) "Mining" is the extraction and processing of mineral or aggregate resources, as defined in ORS 215.298(3) for farmland, and in ORS 517.750 for land other than farmland. (i) "Mining area" is the area of a site within which mining is permitted or proposed, excluding undisturbed buffer areas or areas on a parcel where mining is not authorized. 0) "Processing" means the activities described in ORS 517.750(10). (k) "Protect" means to adopt land use regulations for a significant mineral or aggregate site in order to authorize mining of the site. For purposes of subsection (2)(d) of this rule, "protect" also means to limit or prohibit new conflicting uses within the impact area of the site. (1) "Thickness of the aggregate layer" means the depth of the water-lain deposit of sand, stones, and pebbles of sand-sized fraction or larger, minus the depth of the topsoil and nonaggregate overburden. (m) "Willamette Valley" means Clackamas, Columbia, Linn, Marion, Multnomah, Polk, Washington, and Yamhill counties and the portions of Lane and Benton Counties east of the summit of the Coast Range. (2) Local governments are not required to amend acknowledged inventories or plans with regard to mineral and aggregate resources except in response to an application for a post acknowledgement plan amendment (PAPA) or at periodic review as specified in section (9) of this rule. The requirements of this rule modify, supplement, or supersede the requirements of the standard Goal 5 process in OAR 660- 023-0030 through 660-023-0050, as follows: (a) A local government may inventory mineral and aggregate resources throughout its jurisdiction, or in a portion of its jurisdiction. When a local government conducts an inventory of mineral and aggregate sites in all or a portion of its jurisdiction, it shall follow the requirements of OAR 660-023-0030 except as modified by subsection (b) of this section with respect to aggregate sites. When a local government is following the inventory process for a mineral or aggregate resource site under a PAPA, it shall follow the applicable requirements of OAR 660-023-0030, except where those requirements are expanded or superceded for aggregate resources as provided in subsections (b) through (d) of this section and sections (3), (4) and (8) of this rule; (b) Local governments shall apply the criteria in section (3) or (4) of this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether an aggregate resource site is significant; (c) Local governments shall follow the requirements of section (5) or (6) of this rule, whichever is applicable, in deciding whether to authorize the mining of a significant aggregate resource site, and OAR 660-023-0040 through 660-023-0050 in deciding whether to authorize mining of a significant mineral resource; and (d) For significant mineral and aggregate sites where mining is allowed, except for aggregate sites that have been determined to be significant under section (4) of this rule, local governments shall decide on a program to protect the site from new off-site conflicting uses by following the standard ESEE process in http://arcweb.sos.state.or.us/rules/0ARS_600/OAR 660/660 023.htm1 Fl(,4„6i 1 -6 12/20/2004 ' Dept. of Land Conservation and Development-660-023 Page 21 of 30 OAR 660-023-0040 and 660-023-0050 with regard to such uses. (3) An aggregate resource site. shall be'considered significant if adequate information regarding the quantity, quality, and location of the resource demonstrates that the site meets any one of the criteria in subsections (a) through (c) of this section, except as provided in subsection (d) of this section: (a) A representative set of samples of aggregate material in the deposit on the site meets applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and soundness, and the estimated amount of material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons outside the Willamette Valley; (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or (c) The aggregate. site was on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. (d) Notwithstanding subsections (a) and (b) of this section, except for an expansion area of an existing site if the operator of the existing site on March 1, 1996, had an enforceable property interest in the expansion area on that date, an aggregate site is not significant if the criteria in either paragraphs (A) or (B) of this subsection apply: (A) More than 35 percent of the proposed mining area consists of soil classified as Class I on Natural Resource and Conservation Service (MRCS) maps on June 11, 2004; or (B) More than 35 percent of the proposed mining area consists of soil classified as Class II, or of a combination of Class II and Class I or Unique soil, on NRCS maps available on June 11, 2004, unless the average thickness of the aggregate layer within the mining area exceeds: (i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties; (ii) 25 feet in Polk, Yamhill, and Clackamas counties; or (iii) 17 feet in Linn and Benton counties. (4) Notwithstanding-section (3) of this rule, a local government may also determine that an aggregate resource site on farmland is significant if'subsections (a) and (b) of this `section apply or if subsection (c) of this section applies: (a) The quantity of material proposed to be mined from the site is estimated to be 2,000,000 tons of aggregate material or less for a site in the Willamette Valley, or 500,000 tons or less-,for a site outside the Willamette Valley; and (b) Not more than 35 percent of the proposed mining area consists of soil (A) Classified as Class I on Natural Resource and Conservation Service (MRCS) maps available on June 11, 2004; or (B) Classified as Class II; or of a combination of Class II and Class I or Unique soil, on NRCS maps on June 11, 2004, unless the average thickness of the aggregate layer within the mining area exceeds the httn-//arcweh_sns_state.or.us/rules/OARS 600/OAR 660/660 023.btm1 Fk l'_ ,d 3 12/17/2004 Dept. of Land Conservation and Development-660-023 Page 22 of 30 amounts specified in paragraph (B) of subsection (3)(d) of this rule; or 10 (c) A local land use permit that allows mining on the site was issued prior to April 3, 2003, and the permit is in effect at the time of the significance determination. (5) For significant mineral and aggregate sites, local governments shall decide whether mining is permitted. For a PAPA application inv'olvmg an aggregate site determined to be significant under section (3) of this rule, the process for this decision is set out in subsections (a) through (g) of this section. A local government must complete the process within 180 days after receipt of a complete application that is consistent with section (8) of this rule, or by the earliest date after 180 days allowed by local charter. (a) The local government shall determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities. The impact area shall be large enough to include uses listed in subsection (b) of this section and shall be limited to 1,500 feet from the boundaries of the mining area, except where factual information indicates significant potential conflicts beyond this distance. For a proposed expansion of anexisting aggregate site, the impact area shall be measured from the perimeter of the proposed expansion area rather than the boundaries of the existing aggregate site and shall not include the existing aggregate site. (b) The local government shall determine existing or approved land uses within the impact area that will be adversely affected by proposed mining operations and shall specify the predicted conflicts. For purposes of this section, "approved land uses" are dwellings allowed by a residential zone on existing platted lots and other uses for which conditional or final approvals have been granted by the local government. For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: (A) Conflicts due to noise, dust, or other discharges with regard to those existing and approved uses and associated activities (e.g., houses and schools) that are sensitive to such discharges; (B) Potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the local transportation plan. Conflicts shall be determined based on clear and objective standards regarding sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan and implementing ordinances. Such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight, and capacity that haul other materials; (C) Safety conflicts with existing public airports due to bird attractants, i.e., open water impoundments as specified under OAR Chapter 660, Division 013; (D) Conflicts with other Goal 5 resource sites within the impact area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; (E) Conflicts with agricultural practices; and (F) Other conflicts for which consideration is necessary in order to carry out ordinances that supersede Oregon Department of Geology and Mineral Industries (DOGAMI) regulations pursuant to ORS 517.780; httn-//arrweh.cnc.date nr J7 CX A, /3 1 11/1 ^l /n /%n A Dept. of Land Conservation and Development-660-023 Page 23 of 30 (c) The local government shall determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. To determine whether proposed measures would minimize conflicts to agricultural practices, the requirements of ORS 215.296 shall be followed rather than the requirements of this section. If reasonable and practicable measures are identified to minimize all identified conflicts, mining shall be allowed at the site and subsection (d) of this section is not applicable. If identified conflicts cannot be minimized, subsection (d) of this section applies. (d) The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, local government shall determine the ESEE consequences of either allowing, limiting, or not allowing mining at the site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: (A) The degree of adverse effect on existing land uses within the impact area; (B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and (C) The probable duration of the mining operation and the proposed post-mining use of the site. (e) Where mining is allowed, the plan and implementing ordinances shall be amended to allow such mining. Any required measures to minimize conflicts, including special conditions and procedures regulating mining, shall be clear and objective. Additional land use review (e.g., site plan review), if required by the local government, shall not exceed the minimum review necessary to assure compliance with these requirements and shall not provide opportunities to deny mining for reasons unrelated to these requirements, or to attach additional approval requirements, except with regard to mining or processing activities: (A) For which the PAPA application does not provide information sufficient to determine clear and objective measures to resolve identified conflicts; (B) Not requested in the PAPA application; or (C) For which a significant change to the type, location, or duration of the activity shown on the PAPA application is proposed by the operator. (f) Where mining is allowed, the local government shall determine the post-mining use and provide for this use in the comprehensive plan and land use regulations. For significant aggregate sites on Class I, II and Unique farmland, local governments shall adopt plan and land use regulations to limit post-mining use to farm uses under ORS 215.203, uses listed under ORS 215.213(1) or 215.283(1), and fish and wildlife habitat uses, including wetland mitigation banking. Local governments shall coordinate with DOGAMI regarding the regulation and reclamation of mineral and aggregate sites, except where exempt under ORS 517.780. (g) Local governments shall allow a currently approved aggregate processing operation at an existing site to process material from a new or expansion site without requiring a reauthorization of the existing processing operation unless limits on such processing were established at the time it was approved by . the local government. (6) For an aggregate site on farmland: that is determined to be significant under section (4) of this rule, Z:_x l,- A, V -B Dept. of Land Conservation and Development-660-023 Page 24 of 30 the requirements of section (5) of this rule are not applicable, except for subsection (5)(f), and the requirements of OAR 660-023-0040 though 660-023-0050 are not applicable. Instead, local governments shall decide whether mining is permitted by applying subsections (a) through (d) of this section: (a) The proposed aggregate mine shall satisfy discretionary conditional use permit approval standards adopted by the local government pursuant to applicable requirements of ORS 215.213(2) or 215.283(2), and the requirements of ORS 215.296 and 215.402 through 215.416; (b) The local government shall determine the post-mining use in accordance with subsection (5)(f) of this rule; (c) The local government shall issue a permit for mining aggregate only for a site included on an inventory of significant aggregate sites in the comprehensive plan in accordance with.ORS 215.298(2); and (d) The conditional use permit shall not allow mining of more than the maximum amount of aggregate material specified under subsection (4)(a) of this rule. (7) Except for aggregate resource sites determined to be significant under=section (4) .of this rule; Iocal governments shall, follow the standard ESEE process in OAR 660=023=0040 and 660-023-0050 to determine whether to allow, limit, or prevent new conflicting uses within the impact area of a significant mineral and aggregate site. (This requirement does not apply if, under section (5) of this rule, the local government decides that mining will not be authorized at the site.) (8)1n order to determine whether information in a PAPA submittal concerning an aggregate site is adequate, local government shall follow the requirements of this section rather than OAR 660-023-0030 (3). An application for approval of an aggregate site following sections (4) and (6) of this rule shall be adequate if it provides sufficient information to determine whether the requirements in those sections are satisfied. An application for a PAPA concerning a significant aggregate site following sections (3) and (5) of this rule shall be adequate if it includes: (a) Information regarding quantity, quality, and location sufficient to determine whether the standards and conditions in section (3) of this rule are satisfied; (b) A conceptual site reclamation plan; (NOTE: Final approval of reclamation plans resides with DOGAMI rather than local governments, except as provided in ORS 517.780) (c) A traffic impact assessment within one mile of the entrance to the mining area pursuant to section (5) (b)(B) of this rule; (d) Proposals to minimize any conflicts with existing uses preliminarily identified by the applicant within a 1,500 foot impact area; and S (e) A site plan indicating the location, hours of operation, and other pertinent information for all proposed mining and associated uses. (9) Local governments shall amend the comprehensive plan and land use regulations to include E - W ~ Dept. of Land Conservation and Development-660-023 Page 25 of 30 procedures and requirements consistent with this rule for the consideration of PAPAs concerning aggregate resources. Until such local regulations are adopted, the procedures and requirements of this . rule shall be directly applied to local government consideration of a PAPA concerning mining authorization, unless the local plan contains specific criteria regarding the consideration of a PAPA proposing to add a site to the list of significant aggregate sites, provided: (a) Such regulations were acknowledged subsequent to 1989; and (b) Such regulations shall be amended to conform to the requirements of this rule at the next scheduled periodic review after September 1, 1996, except as provided under OAR 660-023-0250(7). Stat. Auth.: ORS 183 & 197 Stats. Implemented: ORS 197.040 & 197.225- 197.245 Hist.: LCDC 2-1996, f. 8-30-96, cert. ef. 9-1-96; LCDD 5-2004, f. & cert. ef. 6-25-04 660-023-0190 Energy Sources (1) For purposes of this rule, (a) "Energy source" includes naturally occurring locations, accumulations, or deposits of one or more of the following resources used for the generation of energy: natural gas, surface water (i.e., dam sites), geothermal, solar, and wind areas. Energy sources applied for or approved through the Oregon Energy Facility Siting Council (EFSC) or the Federal Energy Regulatory Commission (FERC) shall be deemed significant energy sources for purposes of Goal 5. (b) "Protect," for energy sources, means to adopt plan and land use regulations for a significant energy source that limit new conflicting uses within the impact area of the site and authorize the present or future development or use of the energy source at the site. (2) In accordance with OAR 660-023-0250(5), local governments shall amend their acknowledged comprehensive plans to address energy sources using the standards and procedures in OAR 660-023- 0030 through 660-023-0050. Where EFSC or FERC regulate a local site or an energy facility that relies on a site specific energy source, that source shall be considered a significant energy source under OAR 660-023-0030. Alternatively, local governments may adopt a program to evaluate conflicts and develop a protection program on a case-by-case basis, i.e., upon application to develop an individual energy source, as follows: (a) For proposals involving energy sources under the jurisdiction of EFSC or FERC, the local government shall comply with Goal 5 by amending its comprehensive plan and land use regulations to implement the EFSC or FERC decision on the proposal as per ORS 469.504; and (b) For proposals involving energy sources not under the jurisdiction of EFSC or FERC, the local government shall follow the standards and procedures of OAR 660-023-0030 through 660-023-0050. 0 (3) Local governments shall coordinate planning activities for energy sources with the Oregon Department of Energy. Stat. Auth.: ORS 183 & 197 httr.-//nrrwPh ene etatP nr ne/nilPe/(IARR fx~,&4-23 11/17/7Md TABLE OF CONTENTS COUNTY FILE NOS. PA-04-8, ZC-04-6 1. Plan Amendment/Zone Change application: * Application form and letter * Burden of Proof Statement * Color aerial photo dated 8-12-02 * Conceptual site plan map * Color photos of similar mining operation * Geotechnical Report by Andy Siemens * Ferguson & Associates, Inc. trip generation and intersection analysis letter * Letter from ODFW to Jack Robinson and Sons, Inc. * Color photos of site (3) * Ecological Services, Inc. letters (May 6, 2004; August 5, 2004) * Survey results for burrowing owl nest burrows, pygmy rabbit den burrows and greater sage grouse leks * DIAL printouts of tax lot for subject property * Supplemental letters from applicant's attorney dated January 10, 2004 and January 12, 2004 (2) * Supplemental letter from Ferguson & Associates, Inc. for trip generation and intersection analysis 2. Notice of Hearing and Transmittals Transmittal responses received from: County Property Address Coordinator, Oregon Department of Environmental Quality, Oregon Parks and Recreation Dept. (SHPO), Oregon Dept. of Land Conservation and Development (DLCD), County Road Department, Oregon Dept. of Transportation (ODOT), Qwest, Pacific Power and Light, County Assessor, Cultural Resources Department Notice of Public Hearing for January 18, 2005 and February 15, 2005 hearing Land Use Action Sign Affidavit 3. Planning Division Staff Report Also: * Map showing flood plain * Map showing ownerships * Map showing soil types * CU-95-36 Findings and Decision (Lot of record dwelling) * Assessor's printouts for subject property * Walker property printouts and permits ti,6f; -B 4. Additional Staff submittals * Dennis Griffin, SHPO Lead Archaelogist, letter (Feb. 7, 2005) * Deschutes County Historical Landmarks Commission letter w/exhibits (Feb. 15, 2005) * Oregon Parks & Recreation Department: Heritage Conservation: Archaeological Services Laws, Rules, etc. * Copies of ORS 358.905, 910, 915, 920, 945, 950 * Copy of ORS 192.501 * National Native American Graves Protection and Repatriation Act (NAGPRA) info * Oregon Parks & Recreation Dept: Heritage Conservation: Archaelogical Services website info. * Request for Comment - Klamath Tribes Tribal Council (Feb. 28, 2005) * Request for Comment - Ervin Peck, Compliance Officer, Burns Piute Tribe (Feb. 28, 2005) * Request for Comment - Sally Bird, Tribal Archaelogist, Confederated Tribes of the Warm Springs Reservation (Feb. 28, 2005) * Email from Pat Kliewer to Chrissy Curran, Dennis Griffin, re: pictograph nomination (April 11, 2005) * Email from Michelle Dennis to Pat Kliewer, re: pictographs (April 12, 2005) * Executive Summary - Apollo Geophysics - Spencer Well Mine Vibration Intensity Study by Will Groves, Deschutes County Planning Division * Email from Pat Kliewer to Catherine Morrow (April 19, 2005) * Oregon Parks & Recreation Dept.: Heritage Conservation: Archaelogical Services - Archaelogical sites and isolates * State of Oregon Archaelogical Survey and Reporting Standards * Copy of applicant's 2002 aerial photo * Copy of High Desert of Central Oregon book by Raymond R. Hatton * One-page copy of The Oregon Desert book by E.R. Jackman and R. A. Long (page 165) * Copy of several pages of Love to Water My Soul book by Jane Kirkpatrick * Copy of several pages of A Guide to the Indian Tribes of the Pacific Northwest book by Robert H. Rudy adn John A. Brown * Copy of pages of Oregon Geographic Names book by Lewis A. McArthur (pages 824, 825) * Contour map of Millican Valley Area 5. Emails In opposition - Mark Hjort (Jan. 27, 2005); Phil Doza (Feb. 20, 2005); Patricia O'Day (Feb. 21, 2005) In support - Barbara Goss (Feb. 15, 2005) Concerned - Oregon Natural Desert Association (Feb. 15, 2005) Requesting copies of Hearings Officer's decision - Carol McBeth 1000 Friends of Oregon (December 16, 2004) Ron Robinson visit - Tammie Walker via Pat Kliewer (Jan. 31, 2005) ~Xh~ t~a1 6. Notice of Proposed Amendment to DLCD (mailed Oct. 26, 2004) 7. Hearing information: Oral testimony sign-in sheets (Feb. 5, 2005 and April 20, 2005) Hearings Officer's list of exhibits List of applicable criteria 8. Applicant's additional submittals: * Colored (highlighted) map of property * Noise impact analysis * Ferguson & Associates letter (Jan. 12, 2005) * 4-11 Equipment letter (April 12, 2005) * Archeological survey by Archeological Investigations Northwest Inc. * Vibration Intensity Study by Apollo Geophysics Corp. * Proximity Exhibit Map 1A * Proximity Exhibit Map 1 B * Central Oregon Public Lands Map * Rebuttal statement (April 26, 2005) * Conceptual site plan map 9. Opponents submittals: * Janet Nash letter (no date) * Articles about Dry River Gorge, Letter from Paul G. Claeyssens, USFS, and from Keith Ridler, the Bulletin * Color photos of pictographs * Notice of noncompliance database search results (DEQ) * Copies of Siemens & Associates core samples * Color photos of area * Topographic map (highlighted with 4-R equipment property * Objections letter * Copy of first page of Planning Division staff report * Pine Mountain Observatory information * Deschutes National Forest Finding of No Significant Impact - Pine Mountain Observatory Master Plan Project * Bulletin Article - "Opponents say basalt mine may ruin pictographs" * Letter from Minerva Teeman Soucie, Burns Paiute Tribal Elder (April 16, 2005) * Letter from Perry Chocktoot, Klamath Tribes Cultural Resource Protection Specialist (April 20, 2005) * Alice Greth/Anne Pelham letter (no date, received April 20, 2005) * Alice Keiser Greth letter (no date) * Slide presentation - Tammie Walker * Small arrowhead submitted - Tammie Walker * Videotape - Preservation of Indian Rock Art * Keith and Janet Nash letter (April 20, 2005) * Hearings Officer site visit report response * Tammie Walker letter (Still trying to stop the mine - no date) * Tammie Walker letter (no date) * Aggregate Research Industries website printout (April 15, 2005) * Tammie Walker email from Robert A. Houston (April 12, 2005) I( ~ z~-k ti, * Millican Valley Interim OHV Trail System Map 2003 * Tammie Walker response to burden of proof statement * Tammie Walker response to operating and reclamation plan to DOGAMI * Copy of Circuit Court Stipultated Order of Dismissal with Prejudice * Walker letter for Pat Kliewer regarding placing on National Register (Feb. 18, 2005) * Keith and Janet Nash letter w/exhibit (April 20, 2005) * Tammie Walker letter (April 26, 2005) * Matheson Mining Consultants, Inc., Recent Projects 10. Miscellaneous submittals * Applicant's attorney letter dated June 7, 2005 requesting copies of hearing tapes and confirming automatic hearing before the Board of Commissioners * Applicant's attorney letter dated June 15, 2005, agreeing to waive the 180-day review period * Letter from Susan Bird, Cultural Resources Program Manager, to Pat Kliewer dated April 21, 2005 11. Hearings Officer's written recommendation to the Board of Commissioners on the proposed plan amendment/zone change applications, dated June 2, 2005 PAUL G. CLAEYSSENS, M.S., Ph.D. CAND. HERITAGE GROUP, NW The Deschutes County Board of Commissioners 117 NW Lafayette, Ave. Bend, OR 97701-1925 August 9, 2005 Re: PA-04-8, ZC-046; Proposed Plan Amendment/Zone Change to allow Surface Mining, by 4- R Equipment, Llc. Dear Honorable Sirs: I am writing to you in advance of the public hearing on this case set for August 23, 2005 as an Ex-Officio member of the Deschutes County Landmarks Commission, a professional archaeologist with the USDA Forest Service, and as a private consultant and citizen of Bend/Deschutes County. I have some concerns regarding the impacts of surface mining on sensitive cultural resources in the vicinity of the proposed surface mine. I would like to state for the record that I am not an opponent of surface mining if done with the proper environmental considerations. I am writing to you and your Community Development Department today to address potential environmental considerations that may have an impact on Goal 5 cultural resource properties in the vicinity of the proposal. As you 'know, to the north and east of the proposed surface mine are some of the premier Native American Rock Art sites in Oregon, archaeological site 35 DS 47.. This site has been studied and documented since the 1930s, by such greats of the "father of Oregon archaeology"., Dr. Luther Cressman. It was later documented I the 1960s by the husband and wife team of Loring and Loring (1966), and published accounts also appeared in the Bend Bulletin and The Oregonian in 1966. In addition various Native American's consider the site sacred and significant to their culture and history. While the proposed land-use and zone change will not have direct impacts to this archaeological site, unintended impacts could occur if not assessed prior to the issuance of permits and construction. Specifically, I would sdggest that air quality and particulate impacts be assessed as to potential impacts on nearby rock art panels. Impacts could be related to dust particles, diesel engine emissions, acid rain, and other matter that is released into the airshed above the rock art panels that could speed their degradation. These panels are several thousand years old, however the site's proximity to Hwy 20 and the related rain of modern pollutants is degrading the images and in some cases feeding lichens that could eventually cover and also degrade the images. Remember cultural resources, such as this archaeological site are irreplaceable. Once damaged or destroyed they are gone forever. Please consider adding environmental studies as, requirements for this surface mining operation approval. Sincerely, Paul G. Claeyssens 63287 MORNINGSTAR Cr., BEND, OR 97701 541-389-1956, heritage@coinet.com AUG 10 2005 DES, huiunrYCL). 41 -B AUG-10-2005 WED 01:14 FM HHYHNT LUVLIHN & JHKVlb rHx Nu, 041 Ina .lout) r. ui Bryant, Lovlien & Jarvis. P.C. Attorneys at Law 591 SW Mill View Way P.O. Box 1151 Bend OR 97709-1151 Telephone (541) 382-4331 Fax (541) 389-3386 www.bljlawyers.com FAX TRANSNUSSION COVER SHEET DATE: August 10, 2005 TO. PAUL BLIKSTAD COMPANY NAME: DESCHUTES CO. COMM. DEVELOPMENT FAX NO: (541) 385-1764 PHONE NO: RE: 4-R EQUIPMENT APPLICATION/SPENCER WELLS PIT SENDER: ROBERT S. LOVLIEN E-MAIL: NOTES: PAUL: FOLLOWING IS A COPY OF A LETTER WE RECEIVED FROM THE OREGON 'W'ATER RESOURCES DEPARTMENT. PLEASE GIVE ME A CALL IF YOU HAVE ANY QUESTIONS. RSL. YOUSHOULD RECEIVE 2 PAGE(S) INCLUDING THIS COVER SHEET IF YOUDO NOT RECEIVE ALL PAGES, PLEASE CALL (541) 352-4331 Original [D will ® will-notfollow hyfrst class mail. This facsimile transmission (and/or documents accompanying it) may contain confidential information belonging to the sender which is protected by the attorney-client privilege. The information is intended only for the use of the individual or entity named above. If you are not the intended recipient, you hereby notified that any disclosure, copying, distribution or the taking of any action in reliance on the contents of this transmission is strictly prohibited. If you have received this transmission in error, please notify us immediately by telephone to arrange for the return of the documents. Thank you. AUG-10-2005 WED 01:14 NM 8HYAN'F LUVLIEN & JAKV1~i hHx Nu, 541 JdU 3iije e8/05/2085 05:46 541-382-0277 JR5 4RM r. ue PAGE 02 re Water Resources, Department SOUTH CENTRAL REGION ' icy 'rheodm~ 14. Kulan8velP~, Gmremvt Wat¢rrttaeteK Alshid 11 1128 NW Han i"n trod, OR 97701 Ph: (941) 36$45AS PaY: (59:1)389-5],QY ' , , , : . ; www.w►rd.sta~c.oru9 July 22, 2005 J;;'_ Ran Robetteon Tr 4-R Equipment Pp Box 5006 Bend, Or 97705 RE, Groundwater Application *',G16403 To Whom it may Gr nr : The Water Resources Depa": ent received application G 16403 on March 7, 2005 for the use of 1.0 Cubic Foot per Second ftm a well located in Township 19 South, Range 15 East, Section 30. The location of the propoSM'usa is within the Deschutes Buin Groundwater study area and the Water Resources Department has detetthined the applicant v4 have to rniftate their use. Currently the Deschutes Mitigation rules are deemed by the wurts to be invabd, however at such time that the rules are rv-jrstated, the Water Resources Department will again eondnue processing the application, According to the Deschutes Basin Progrwn, OAR 690-505-0000 (1) (a), the use of Manufacturing with a pond is allowed. Considering the amount of water pumped under the proposed pernnit, our office does trot anticipate any adverse effects on the local aquifer or surrounding wells from this use. If and when the proposed permit is issued; the well will require a flowtneter to ensure that the landowner is stetyirhg within the limits of the water right, Please teal free to contact me at 3886669 if you have any questions. Thank Yo Jaremy Deschutes Basin Watertnastar a E14kT kl 3 opponents say basalt mine may ruin pictographs ~ Hearing tonight on proposed project By Chris Barker who has visited the site to pray since he The Bulletin was a boy. "That pictograph was a repre- An image - painted on a rock wall off sentation of that event." a lonesome stretch of Highway 20 east of Pictographs - ancient, Native Ameri- Bend - depicts a comet striking the Ore- can rock paintings - and other potential gon desert thousands of years ago, some archaeological sites now face a modern say. threat, opponents of a basalt mine pro- "In Paiute history, it killed a lot of peo- posed for the Millican Valley say. ple and animals," said Wilson Wewa, See Mines /A8 Clay Walker, who owns property across Highway 20 from a proposed basalt mine, stands near some of the numerous Native American pictographs located on his property. Elf, f HUU. L1. 1UU5 6:5UNM August 22, 2005 E.Ynerienced Advice in a Complex World." 200 FORUM BUILDING 777 High Street Eugene, Oregon 97401-2782 PHONE 541 686-9160 FAX 541343-8693 James K. Coons John G. Cox Douglas M. DuPriest Frank C. Gibson Stephen .A.. Hutchinson Thomas M. Orr William H. Sherlock E. Bradley Litchfield Zack P. Mittge Patrick L. Stevens a M. Thompson Deschutes County Board of Commissioners 1300 NW Wall St. Bend,, OR 97701-1960 NO. 547 P. 4 'RE: Legal Argument Proposed Spencer Wells Quarry; PA, 04-8/ZC 04-6 Our Clients: Clay and Tammera Walker Our Bile No: 7770/10025 Dear Board of Commissioners: On behalf of our clients, Clay and Tammera Walker, we write to oppose the above applications for a Plan Amendment and Zone Change for 4R Equipment's proposed rock quarry at Spencer Wells. The applicant has failed to address all relevant criteria in seeking to mine the proposed site. Please include this letter in the record of these proceedings and provides us with notice of future proceedings on this matter. A. Failure to Perform the Mandatory ESEE Analysis The applicant appears to believe that since it has provided Deschutes County with a report that estimates that there may be a "significant" aggregate resource, the inquiry is over. However, as OAR 660-023-0150(7) and (5)(d) make clear, even significant sites cannot be mined if an applicant cannot demonstrate via an ESEE analysis that mining is still warranted. As of the writing of this letter, the applicant has not even bothered to engage in, or provide, an ESEE analysis of its project. This despite the significant conflicts with agriculture, water depletion, noise, dust and vibration that the County Hearings Official identified in her recommendation over two months a s-0. Applicants bear the burden of demonstrating that a site is not only significant, but is actually appropriate to mine. Where, as here, an applicant has not provided any analysis of appropriate mitigation for conflicting land uses which have been identified as significant by a County Hearings Official, Attorneys and Counselors at Law ,established 1970 AUG, 22. 2005 6:50PM Deschutes County Board of Commissioners • August 22, 2005 Page 2 NO. 541 P. 5 it is clear that the applicant has not met this burden and it is entirely appropriate to reject this application and refuse to permit mining. B. Failure to Provide Complete Evidence Additionally, we echo the Hearings Official's finding that the applicant has not provided sufficient evidence to demonstrate that its application can be approved. The Hearings Official correctly notes the applicant improperly limits its focus to consideration of 1500-foot impact area. Even ignoring, as the applicant would have us do, surrounding land uses outside this impact boundary that are sensitive to noise, dust or vibration, this inadequate impact boundary completely ignores the Deschutes County Code "Surface Mine Impact Area" of one-half mile (2640 feet) around the property boundary. DCC 18.56.20. This impact area is designed to ensure that external uses do not conflict with mining on the site. It also implicitly recognizes that mining activities conflict with uses within this 2640-foot corridor. The applicant's suggestion that, somehow, its proposed use will impact less property than the • county minimum, or that surrounding uses are somehow more burdensome on the.quarry than it is on these uses, has no basis in the record. Tlus is especially true in light of several of the sensitive and conflicting uses that Hearings Official properly found to be within the impact boundary of the quarry and that stand to suffer consequences from its proposed use. The Hearings Official found that impact boundary encompasses pictographs and the historic Coyote Well, well within the one-half mile surface impact area, our client's residence (also well within the boundary), a BLM shelter, ORV trails, the unincorporated community of Millican, sensitive bird and mammal habitat, agricultural land used for cattle grazing (including the Evans Well Ranch), Pine Mountain Observatory, and Highway 20 and Spencer Wells Road. Hence, the applicant has not acknowledged all of surrounding uses which their proposed mining will impact. The application cannot be deemed adequate when it does not account for all impacts, B. Water Drawdown Impacts The applicant is proposing to conduct subsurface pit mining, including blasting and extraction activities, in a geologically complex and largely unexplored aquifer. According to the U.S. Geological Survey, the historic Coyote Well on the Walker property, and possibly other wells in the area are fed from small shallow "perched" aquifers, which are recharged by surface water in the area. Disruption of these aquifers by blasting or excavation, by AUG.- 22. 2005 6; 50PM NO. 547 P. 6 Deschutes County Board of Commissioners. • August 22, 2005 Page 3 diversion of recharge flow, by outright depletion or by contamination could have irremediable impacts on these shallow aquifers and the wells which depend on them. Moreover, it is literally unknown at this time, what effects these proposed mining activities will have on the deeper aquifer within the area. Our clients, and other property owners in the area, derive their water from an aquifer approximately 1000 feet below ground. According to USGS, this aquifer becomes shallower (300-400 feet) in the Millican area where there are several other wells which rely on it. The USGS indicates that "[t]here is not enough information" to determine to what extent the proposed mine will impact the aquifer, and recommend continued monitoring of the aquifer if the quarry is developed. The Oregon Water Resources Department, although not anticipating adverse impacts from the proposed use of the site, likewise recommends mitigation of the proposed use. This aquifer is the lifeblood of the Millican valley. Homes, businesses, and dryland farms depend on it for their existence. It is a flow of water that takes at least 40 years to make its way to this community, but one that could • be rapidly rendered unusable by the applicant. Depletion, disruption, or contamination by the proposed mining activities could destroy the Millican valley- It is not enough for the applicant to say that it tlhinlfs nothing will happen. The applicant has to establish that its impact on neighboring properties can and will be minimized. Since it has not bothered to do so, its application should be denied. C. Agricultural Impacts. OAR 660-023--0180(5)(b)((E) and (c) requires the. applicants to demonstrate to Deschutes County that their proposed use will not "force a significant change in accepted farm and forestry practices on surrounding land devoted to farm and forest use" or "significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." The Spencer Wells Site Quarry is proposed to be sited on agzicult r4 land surrounded by agricultural land. Yet, the applicant does not even acknowledge the surrounding agricultural uses as a potential conflict. It ignores the possibility that its mining activities will draw down, pollute, or disrupt the aquifers upon which nearby dryland farmers depend. It ignores the potential impacts of noise and vibration on 'nearby livestock and the impacts of dust deposition on crops. It ignores the increased risks of environmental contamination and fire that its proposed development will • AUG. 22. 2005 6: 51 PM N0,547 P, 7 Deschutes County Board of Commissioners August 22, 2005 • Page 4 impose on surrounding uses, and how these risks could undermine the productivity of the surrounding land. Last of all, it ignores the fact that approving this application would effectively bar new or expanded uses in this exclusive farm use zone for at least one-quarter mile in every direction to the extent they could interfere with mining activities. As the Hearings Officials decision makes clear, the applicant cannot ignore surrounding agricultural uses and hope they will go away. Instead, where the applicant fails to demonstrate that its proposed mining can be minimized to ensure that agricultural uses may be continued, no such mining activity should be permitted. Where, as here, an applicant completely fails to even acknowledge the existence of surrounding agricultural uses, its application should be rejected. U, Insufficient evidence on noise dust and vibration damage. Finally, the applicant has made no serious attempt to address the impacts that the noise, dust and vibration created by its proposed excavation and blasting will have on surrounding uses. • As previously indicated, dust deposition on crops, and noise and vibration impacts on livestock have not even been acknowledged by applicants much less analyzed. Given the effects that the sounds of operations (explosions, excavation and crushing) could have on livestock, like that at the nearby Evans Wells Ranch, these effects must be addressed. Moreover, since the applicant failed to identify the nearby Walker residence (nearest residence) as a potential conflicting use, there has been no attempt to address how dust, vibration and noise of operation will impact the liveability of our client's property. The quarry is proposed to be located in the bowl of the Millican valley within one-quarter mile of our client's home. Their location higher up on the valley thrall means that they will not only be subjected to a full view of the operations in the pit below, but to nearly constant assault by the sounds of excavation, crushing and blasting. Add to this the fact that the applicant is proposing to continue operations as long as it is light during the summer months and the fact that the geological fon-nation of the valley permits grater sound conductivity during the evening hours, and our clients are likely to be facing disruption of their quiet enjoyment of their home well into the evening. Likewise, dust impacts on our client's home, surrounding recreational uses and the nearby Pine Mountain Observatory have yet to be addressed. The applicant has apparently indicated that watering will keep down dust at • AUG- 22. 2005 6: 51 PM N0. 547 P. 8 Deschutes County Board of Commissioners • August 22, 2005 Page 5 the site, there was no indication that there would be any pond or other water impoundment at the site in its application to DOGAML Given the unique and especially dust sensitive nature of surrounding uses, the, applicant should have provided a plant to reduce these impacts, and not merely an unsupported assertion that they will have some water to address dust. Conclusion Thus, since the applicant has not submitted the necessary information supporting the approval of its applications, our clients agree with the Hearings Official's recommendation that the application be denied, Very truly yours, • DMD / ac cc: Clients HUTCHINSON, COX, COONS, DuPRIEST, ORR & SHERLOCK, P.C. 0 ' Doug M. DuPriest n U August 23, 2005 Dear Board of Commissioners: Thank you for having this public hearing this morning. My name is Tammie Walker, my husband; Clay & I own the property and home within Z mile of the proposed site. I would like to submit for each of you, and one for the record, a notebook of pertinent information regarding this proposed aggregate pit. I will not be talking about the archeology piece, as there will be testimony today from some very respected and knowledgeable people in this area. The Dry River Canyon with the pictographs on the walls are on our property and we have asked for their help in trying to preserve this site from any further possible damage. As you can see, this particular rezoning application is being met with much opposition and dismay. My husband & I ask you to carefully make your decision with this application, as there is much to lose. I would also like to say that Ron Robinson is a very nice man and this is not a personal attack on him. Mr. Lovlien, the applicant attorney submitted a rebuttal from the last hearing. I • would like to address some of the issues. 1. Sage Grouse: Mr. Lovlien states again the pit will not impact the Sage Grouse, however, he is repeating what the paid biologist that worked for Ron Robinson wrote in a report. There is nothing on BLM letterhead that enforces this statement. The maps and letters that have been submitted from the opposition are from the BLM. Please see the wildlife section in the notebook. Also, the letter from Steve George in 2003 stating that the Antelope are extremely sensitive to changes in development and human caused disturbances.' This proposed pit would have far reaching effects on the Antelope and Sage Grouse. The hearings official increased the impact zones, in one area up to 6.5 miles. This is the area towards Pine Mt. This increased impact area contains a well know Sage Grouse nesting site. Has the applicant addressed how this new impact area will be met? 2. Traffic: This traffic study and ODOT letter are only concerned with the area of HWY 20 E, by Spencer Wells Rd, as I am also concerned. Having lived there from many years, I've witnessed many accidents, people trying to pass before they get to the passing lane, and going at high rates of speed. At the first hearing, I recall many people that live on Rickard Road were concerned with the extra traffic this operation would place on their rural residential street. 3. Power: It should be required that Mr. Robinson use electric power to run all of • his pumps and lights, generators are very noisy and will cause further disruption to our quiet life and to the wildlife. please see the letter written by Larry Chitwood, USFS Geologist. It gives an explanation of why the sound carries farther in the Millican Valley, then in Mr. Robinson's Century Pit or the Alfalfa pit. 4. Mr. Lovlien has repeatedly referenced the Century Pit and the upscale housing development of Broken Top. While driving around the Century pit area one evening, the first thing that caught my eye was the extremely different terrain. There are huge Ponderosa Pines, hills, Bitter Brush and many other types of trees and vegetation. His Spencer Wells proposed site is open, flat and visible from all directions. (It is in the Millican prehistoric lake bed.) Please see the pictures I have provided in the book. Even though the Century pit is 300 yards from the entrance to Broken Top, how many yards is it to the housing? And yet there are still complaints. There is a copy of a letter in this book from a resident; there is a green tag on it. "My personal experience of living near the Robinson surface land mine within the City of Bend near the Bulletin, Mt. Washington Drive and 14th St gives me a true picture of the problem that the dust alone would create."" 5. Flood Plain and Water: There is not enough substantiated evidence from the applicant that the water and drainage issue is stable for this area. Please see the letter under Water in the notebook from the USGS. 6. DEQ citations: Please review the applicants whole file. Mr. Lovlien writes that . they have not received any other DEQ citations for any of the pits that they have operated as described in the public hearing."' They may not have received dust violations, but they have received other violations. Even after being sited in October of 2004 and fined $3,600, they were again issued a violation on January 11, 2005 for disposal of solid waste without obtaining a permit. Contaminated soil form Bob Thomas Chevrolet." 7. Dust control: My concerns are the same as above, not just the amount of water used, but the drainage. With the stockpiles moved into the depression, they will still be visible, and still be an unnatural site in the Million Valley. Mr. Lovlien states that Ron Robinson will only crush 75,000 cubic yards of material, if that is the case then please include that limit in the permit. With the 17 million cubic yards of aggregate the applicant claims, why would he limit himself to just 75, 000 cubic yards a year? Mr. Robinson has stated that the significant amount of aggregate is needed as Deschutes County needs this quality rock. I would like to reference the McClain report, a report that was written by D.W. McClain & Associates Inc. The Cline Butte Recreation Association in 2000 hired them, when ODOT wanted to open a pit in the Golden Triangle. This report states that they reviewed 32 of the largest • aggregate mines in Central Oregon. These mines were in the ODOT study area and it was found that there are 20 more times more aggregate reserves in existing rock • mines than is projected to be needed in the Region for the next 50 year period." This report concluded that there was no need for any new aggregate pits. Of the 20 pits that ODOT identified in Region IV, the association identified two more pits. Of this list, Mr. Robinson has three listed pits. The Evans Pit the Alfalfa Quarry and the Lone Pine Pit. They all are of ODOT Spec quality." He has also recently purchased Red Cloud Construction in Redmond, and has gained a pit there. I would also like to reference a report I received from DOGAMI. This is found under the DOGAMI f ile in the notebook. The amount of aggregate being extracted in Deschutes County from 1996 -2004 has not significantly increased. Based on this information alone, this site should NOT be approved and if possible, not listed as a significant source of aggregate on the county's inventory. Recreation in the valley is not just limited to the ATVs, campers, stargazers or mountain bikers. It is also a nationally know paragliding area. I have printed off some of the information in regards to the local club. The Desert Air Raiders is host to the world famous Annual Pine Mountain Fly-In."' This information can be found under the recreation tab in the notebook. At the April 20th hearing the president of the club brought up the fact that this sport brings in thousands of dollars to the local economy. The proposed pit will create dust, an obstacle for them, especially in the evening. A possible interruption of air flows, when the heat • is released from the valley floor, making a warm wind sweep upward. This all relates to a loss of money f lowing into the community. The Pine Mt. Observatory, which will be spoke about by someone with much more knowledge regarding this facility than I have, would be greatly impacted. This site, for an aggregate pit, is plagued with problems, the agricultural, cultural, historical, recreational, wildlife and water issues are but a few. Deschutes County has lost many historical sites because development. Hopefully, as a community we have learned from our mistakes and can manage the growth with out destroying the past. I remember when the Pilot Butte Inn was torn down. Now the new building in it's spot, is try to reflect some of the architecture that was present with the Inn. Once the canyon is damaged, Coyote Well drained, and the quality of life, that we chose to have, is gone, it can't be re- placed. Like the new buildings trying to replicate the past, it can't be done. Let Millican Valley stay the way it is. I urge you to deny 4R Equipment' application to rezone the subject property from EFU-HR, WA, LM, and FP overlay to SM. Goal 5 cannot be met with all that is at stake in this area. • janl You,_ do_o~ Tammie Walker 26730 Hwy 20 E Bend, OR 97701 Mailing Address PO Box 871124 Wasilla, AK 99687 ' ODFW letter dated April 3, 2003 " Email sent to Paul Blikstad from Phil Doza, Feb. 20, 2005 'n Rebuttal Statement, RSL: 4R-096, page 3, subsection 10. ' Oregon DEQ Notice of Non Compliance Data Base Search D. W.McClain Report, A review of Oregon Department of Transportation Region IV Aggregate Study, page 1 ' DW McClain Report, A Review of Oregon Department of "Transportation Region IV Aggregate Study, Table 2.1 -Existing Aggregate Sources in Region IV. Desert Air Raiders. http:/www.desertairraiders.org 0 PAUL G. CLAEYSSENS, M.S., PhD. LAND. HERITAGE GROUP, NW • August 9 2005 The Deschutes County Board of Commissioners 117 NW Lafayette, Ave. Bend, OR 97701-1925 Re: PA-04-8, ZC-04-6; Proposed Plan Amendment/Zone.Change to allow Surface Mining, by 4- R Equipment, Lie. Dear Honorable Sirs: I am writing to you in advance of the public hearing on this case set for August 23, 2005 as an Ex-Officio member of the Deschutes County Landmarks Commission, a professional archaeologist with the USDA Forest Service, and as a private consultant and citizen of Bend/Deschutes County. I have some concerns regarding the impacts of surface mining on sensitive cultural resources in the vicinity of the proposed surface mine. I would like to state for the record that I am not an opponent of surface mining if done with the proper environmental considerations. I am writing to you and your Community Development Department today to address potential environmental considerations that may have an, impact on Goal 5 cultural resource properties in the vicinity of the proposal. As you know, to the north and east of the proposed surface mine are some of the premier Native American Rock Art sites in Oregon, archaeological site 35 DS 47.. This site has been studied and documented since the 1930s, by such eats of the "father of Oregon archaeology", Dr. Luther Cressman. It was later documentethe 1960s by the husband and wife team of Loring and Loring (1966), and published accounts also appeared in the Bend Bulletin and The Oregonian in 1966. In addition various Native American's consider the site sacred and significant to their culture and history. While the proposed land-use and zone change will not have direct impacts to this archaeological site, unintended impacts could occur if not assessed prior to the issuance of permits and construction. Specifically, I would suggest that air quality and particulate impacts be assessed as to potential impacts on nearby rock art panels. Impacts could be related to dust particles, diesel engine emissions, acid rain, and other matter that is released into the airshed above the rock art panels that could speed their degradation. These panels are several thousand years old, however the site's proximity to Hwy 20 and the related rain of modern pollutants is degrading the images and in some cases feeding lichens that could eventually cover and also degrade the images. Remember cultural resources, such as this archaeological site are irreplaceable. Once damaged or destroyed they are gone forever. Please consider adding environmental studies as requirements for this surface mining operation approval. 0 Sincerely, 63287 MORNI NGSTAR CT., BEND, OR 97701 541-389-1956, heritage@coinet.com PAUL G. CLAEYSSENS, M.S., Ph.D. LAND. HERITAGE GROUP, NW • • • /s,/ Paul G. Cheyssens Paul G. Claeyssens 63287 MORNINGSTAR CT., BEND, OR 97701 541-389-1956, heritage@coinet.com ~ mil, _ l , L ~ r ! ~o- 'F } L ~J trAf F .r w; ,,ppr_ a c Ili- Z ~ W TVt 1 k rc ' 4 i L~ cwt 1 rsq+ .i - 1 ~J • i fey. f a Z7' c -le T T~ ~C '..7'° J 1 vW y 0 CD Pd L ryC VY PD r"! r O O • LJ 141.~.~r♦ ~T,r..r, ~fi, c r P f5 1F f ' y r ~rF #i ►t~ ~ f' cn C4 f'D C'D O rt CD r~-t r'D OO CD ('1 n p O V r-= C 0 r-! n rD 0 I^ O O k,A u What follows is a compilation of archaeological materials which directly relate to concerns about potential impacts to the pictograph site at Dry River Gorge. They have been gleaned from works • by well-known authors, letters provided by representatives of local tribal members, and scholarly reports available on the Internet. The paper also contains an update on activities by professionals and the local archaeological society to document the cultural resources in the Millican Valley. What is Rock Art? "Scattered throughout the Pacific Northwest are hundreds of prehistoric rock paintings and carvings made by the Indians of this region prior to European American settlement of the area. These pictures, carved into basalts along the Columbia River and its tributaries, or painted on cliffs around the lakes and in the river valleys ...are an artistic record of Indian culture that spans thousands of years. Collectively called rock art by the scientists who study them, these drawings are most often carefully executed pictures of humans, animals, and spirit figures that were made as part of the rituals associated with religion, magic, and hunting. "Rock art in the Pacific Northwest was first noticed by early explorers. Before the turn of the century, government-sponsored expeditions searching for wagon and railroad routes through the region noted rock art at Lake Chelan, along the lower Columbia River near Umatilla, and in northern Idaho. Soon after, anthropologists and other scientists began studying some of these sites. James Teit, an ethnologist who recorded the cultures of Columbia Plateau Indian tribes in British Columbia and northern Washington between 1890 and 1920, interviewed natives who had painted some of these pictures and asked why they had done so (Teit 1928). Since then, his work has been a key to all serious rock art research in the region. "Despite the long history of scientific interest in Columbia Plateau rock art, the public remains relatively unaware of these paintings. Except for occasional newspaper or magazine articles, and limited interpretation of a few sites, little information on rock art has been made available to nonscientists. One result has been the spread of misinformation by sensationalist writers who have suggested that these drawings are maps or "writing" left by Chinese, Norse, Celtic, or other pre-Columbian explorers. "More serious, however, is that current residents of and visitors to the Pacific Northwest miss the opportunity of understanding and appreciating rock art as a part of our region's rich cultural heritage. This has led to the defacement (and even the destruction) of some sites by unthinking vandals who obliterate the original art with spray-paint scrawls. "Simply put, rock art can be defined as either engravings or paintings on non portable stones (Grant 1967, 1983). "Pictographs are rock paintings. On the Columbia Plateau these are most often in red, but white, black, yellow, and even blue-green pigments were sometimes used. Polychrome paintings are uncommon, but a few do occur throughout the region. Most frequent are the red and while polychromes of the lower Columbia River and Yakima valley." (Note: The Dry River Gorge site contains a rare, polychrome motif - see below.) • "Pigment was made from various minerals. Crushed iron oxides (hematite and limonite) yielded red ranging from bright vermilion to a dull reddish brown and yellow colors. Sometimes these ores were baked in a fire to intensify their redness. Certain clays yielded white pigment, and copper oxides blue green. Both charcoal and manganese oxide produced black. Early • descriptions indicated that Indians mixed crushed mineral pigment with water or organic binding agents, such as blood, eggs, fat, plant juice, or urine, to make paint. "Pigment was most commonly applied by finger painting: finger-width lines composed the large majority of pictographs throughout the area. Some paintings, done with much finer lines, indicate the use of small brushes made from animal hair, a feather, or a frayed twig. Still others were drawn with lumps of raw pigment (much like chalk on a blackboard) or grease-paint "crayons." These pictographs have a characteristic fine-line appearance, but the pigment appears somewhat unevenly applied in comparison with the small brush paintings. How this paint has survived on open exposed cliff faces, where pictographs are usually found, has long been the subject of scientific debate. Early scholars, presuming that the paint would fade rapidly, argued that all of these paintings had been done during the last two hundred years. Several reported significant fading at some sites, and even suggested that none of these paintings would last beyond a few more years. Fortunately, they have been proven wrong; scientists have recently discovered evidence that the paintings are not disappearing, as originally thought. Photographs taken at several sites over spans of as much as seventy-five to one hundred years indicate that pronounced fading is not usually a problem. Often, "faded" pictographs are found to have been destroyed by road construction, inundated by reservoirs, or covered by road dust or lichen. When affected only by natural weathering, paintings at hundreds of sties remain as bright today as when they were first discovered. "Recent research by Canadian scientists (Taylor et al. 1974, 1975) has demonstrated why these rock art pigments are so durable. When freshly applied, the pigment actually stains the rock surface, seeping into microscopic pores by capillary action as natural weathering evaporates the water or organic binder with which the pigment was mixed. As a result, the pigment actually becomes part of the rock. "Mineral deposits coating many cliff surfaces provide a further "fixative" agent for these paintings. Varying types of rock contain calcium carbonates, aluminum silicates, or other water- soluble minerals. Rain water, washing over the surface of the stone or seeping through microscopic cracks and pores, leaches these naturally occurring minerals out of the rock. As the water evaporates on the cliff surface, it precipitates a thin film of mineral. This film is transparent unless it builds up too thickly in areas with extensive water seepage. In these instances the mineral deposit becomes an opaque whitish film that obscures some designs; the reason some pictographs do actually fade from view. However, microscopic this section studies show that, in most instances, staining, leaching, and precipitation have actually caused the prehistoric pigment to become a part of the rock surface, thereby protecting it from rapid weathering and preserving it for hundreds of years." Used with permission of James D. Keyser from his book, Indian Rock Art of the Columbia Plateau, University of Washington Press, 1992. Dr. Keyser was long-time Pacific Northwest Regional Archaeologist for the U.S. Forest Service and is a world-renowned rock art expert who has worked with and shared his knowledge for many years with the Archaeological Society of • Central Oregon (ASCO). 2 Why Should Rock Art be Protected? "Rock art is the principal research resource we have in palaeoart (sic) studies, the discipline whose ultimate scientific agenda is to determine the origins of human constructs of reality. Consequently rock art is among the most important scientific evidence available to the species we call Homo Sapiens: it would appear to be the major component of the corpus of evidence available us to consider how that species constructed the conceptual artefact (sic) we consider to be the world we exist in. It is therefore reasonable to demand that the preservation and curation of this irreplaceable resource be afforded considerably more priority than has been given to it so far. Humanity lavishes billions of dollars annually on its art objects, its art repositories and its art industry. Yet from a scientific perspective the arts of historical periods are of almost trivial significance, at least in comparison..." "Humanity's efforts in preventing the destruction of the immensely valuable and clearly irreplaceable resource of rock art remain minuscule (Swartz 1981). (Janni) Loubser (2001:82-3) points out that the very concern with preserving 'non-renewable cultural resources' is a relatively recent result of the expansionist milieu of the 20th century. In the case of rock art, this concern is largely a result of the formation of rock art organizations in most parts of the world over the last few decades. There is a distinct correlation between those parts of the world where such rock art organisations are most active and outspoken, and the geographical areas where government agencies and archaeologists have become most sensitive to concerns about rock art. In the not-so-distant past, government agencies in most parts of the world were quite aloof from these concerns. The present state is one of transition...." "In general, it is agreed that conservation threats to rock art sites can be divided into two basic types: those that are attributable to human interference of some type, and those of natural deterioration. In practice, however, the two cannot always be separated effectively: a factor of natural deterioration may be indirectly attributable to human modification of the environment. Sometimes the connection may be very obscure, if indeed it can be determined. For instance, ecological imbalances introduced by humans are frequently responsible for new conservation threats. Experience shows that it is judicious to first look for a humanly introduced cause in most instances of rock art deterioration. "This should have been obvious from logic. Most rock art is of a considerable age and to exist today it must have survived many threats. So older the art, so more potential threats it must have survived, and so higher the expectation that it will survive longer still (Bednarikl990e) This is because the older art has attained a condition of near equilibrium with its natural environment, which can be threatened only by major environmental changes, or by human intervention. ...therefore the oldest art is proportionally at a greater risk from human interference. The previous piece is from Robert G. Bednarik, noted Australian archaeologist and member of the international rock art community( auranet@optusnet.com.au). On the "Heritage at Risk" website are examples of international concern regarding the vulnerability of rock art including UNESCO World Heritage sites in the Val Camonica, the caves in France, and the rock carvings of Tanum in Sweden. "Regardless of all efforts that have • been made, and are continuously being made, in many countries throughout the world, rock art is very vulnerable and under almost constant threat to disappear entirely. Even under "normal 3 conditions," many sites are lost due to deterioration caused by climatic factors such as heat and • freezing. This deterioration is in many instances "enhanced" by human effects of which the most obvious and widespread is environmental pollution such as acid rain and related circumstances. Yet another threat, and a most dangerous one, is modern landscape planning for infrastructure and various construction purposes such as road-building, industrial development, etc. This growing modern threat to rock art was dealt with by Dr. Clottes of France in the middle of the 1990's in an International Council on Monuments and Sites (ICOMOS) report of the World Heritage Rock Art sites." . "In recent years, there has been a marked shift (in Sweden) in the focus of research from interpretation to documentation and conservation. Not that interpretation as a theme has become less interesting, on the contrary. But since the basis of interpretation is based on the images, the engravings have to be preserved or at least documented before they vanish. This is reflected in the Air Pollution Project of the National Heritage Board that was carried out between 1988-1996. The results from the analyses of the effects of environmental pollution that were undertaken, indicated that almost 75% of the rock art sites were suffering from negative effects." The following is from an article on the ICOMOS website - Rock Art at Risk (www.international.icomos.orWrisk/2002/rockart2002 htm) "The rock art heritage is still at risk. Although new sites are discovered continuously, just as many or more are constantly endangered or destroyed.... Once a site is lost we also lose the memory of its creators, the unknown people without writing - the loss is forever and the rock art can never been replaced. Rock art is as old as modem humans, Homo Sapiens Sapiens, who • started to express myths and beliefs some 40,000 years ago. Prehistoric paintings and engravings have thus been the worlds' most widespread form of cultural heritage. Such art has already been reported from over 120 countries around the world, and most certainly a large number of hitherto forgotten or unknown areas await discovery in other countries. Unfortunately, many sites are undergoing processes of deterioration. They have always been exposed to the continuous destructive forces of nature. The power of those forces has now been exacerbated by human actions, resulting in acid rain and global warming - phenomena that will only aggravate the degradation processes. However, the biggest negative human impact on rock art stems from industrial and economic activities and organised actions to develop society, notably the infrastructure planning. "These growing threats do not only impact the rock surfaces and images as such. They can also cause irreparable damage to the landscape and context of the rock art sites. At the World Heritage site with magnificent Bronze Age rock engravings in Tanum, Sweden, the proposed extension of a new motorway does not physically affect a single rock art panel. However, its impact on the cultural landscape, created from more than 8000 years of continuous human activity, could cause irremediable damage to the visual and structural integrity of the rock art. The introduction of a huge, linear mega-element in an otherwise naturally hilly and undulating landscape would obscure the settings of the art and compromise the potential to grasp some of the still remaining views and concepts of its Bronze Age creator. In Valcamonica in Italy, deep wounds have been cut in the lower valleys of the beautiful Alps landscape by the ongoing construction of the new road. The rock art is still there and the images as beautiful and imaginative as before, but the setting of the panels have been changed in a negative sense. 4 Therefore, the first priority advocated by CAR (Comite International &Art Rupestre) is that rock • art should be preserved in its original environment." From a website of the World Monuments Watch: In Australia, and most specifically at the Dampier Rock Art Complex, Dampier Archipelago, a multi-year study is currently underway of the effects on the largest rock art site in the world of an industrial complex emitting greenhouse gasses and dust. "The Australian Rock Art Research Association and the International Federation of Rock Art Organizations are lobbying for the relocation of the industrial development are seeking to have the Dampier Rock Art Complex designated a national park to be managed in partnership with local Aboriginal custodians. As a result of their efforts, the government commissioned a study on the deterioration of the rock art in October 2002. The results of the study, however, are not expected for at least four years." Cultural Significance of the Dry River Gorge site to Local Tribes The importance of the pictograph site and the surrounding areas has been addressed by several important representatives of local tribes with deep connection to the Millican Valley. Mr. Wilson Wewa, Jr. spiritual leader of the Northern Paiute of the Confederated Tribes of Warm Springs, spoke eloquently at the first hearing about his continuing use of the site, which is sacred to his people, to pray. He remembers the stories that have been passed down by his family to him about the pictures and was instrumental in the conservation efforts successMy undertaken in 1988 to save the site, referenced elsewhere in this document. Sally Bird, Cultural Resources Program Manager for the Confederated Tribes of Warm Springs, in a letter addressed to Pat Kliewer on April 21, 2005, said, "...concern has been raised by a Private Citizen tribal member with regards to religious traditional and ongoing use of the area and the possible presence of tribal affiliated burials within the vicinity of the proposed plan amendment and zone change. The SHPO verified the presence of a known archaeological site adjacent to the proposed plan amendment and zone change area, which does include burials." The text of another letter addressed to Pat Kliewer, written by Perry Chocktoot of Klamath Tribes, Culture and Heritage Department, April 20, 2005, is quoted, as written, below: "The area that you and I have discussed on the Dry River and the associated areas around Horse Ridge have been sacred to the Northern Paiute since the beginning of time for all aspects of aboriginal life from birth to death. "There are places where we went to pray and be with our ancestors as well as places to rest for all eternity in the forms of burial grounds. This is evident by the presents of literally hundreds of graves scattered through out the whole area. If the construction of this quarry and rock crushing operation was to take place it would destroy an area that demands quiet for the tribal members that still go to the area today for worship of our ancestors and to converse with the life giver and creator of us all. This area is one of very few left that has such special meaning to us as a connection to our past, present and future. It would be a tragedy to loose another sacred area to the so called progress of America." • Minerva Soucie, Burns Paiute Tribal Elder, wrote a letter on April 15, 2005 to address her concerns regards the potential impact of the gravel operation. 5 "This is for the public record that f am unable to attend, due to travel status. But, I want my • concerns to be known and addressed. I am speaking about the proposed gravel pit to be located near/close to the rock paintings in the canyon below Horse Ridge. I am a member of the Northern Paiute Tribe in Burns, Oregon. My Paiute people lived in this area for well over 11,000 years ago and have left their marks on this land. I am an Elder now, but my first experience at visiting the rock art was before I went to school, my parents (Paul and Bernice Teeman) took my sister and brother there to see the works of our ancient people. They explained to us, that it was a sacred site and not to be disturbed. This was in the early 1950's, before there were any homes built close by and we walked from hwy 20. "Over the years, we would stop and go visit the site and it was still undisturbed. As I got older, I appreciated the area and tried to figure out the story that was left by the old ones. There was a special connection I had to that site and when ever we visited there, we did not see any other people, but see tracks in the area. "When I got married and had my own two children, I took them to the site and explained to them the spiritual significance of the area to them, much like our parents had in the 1950's. This was before the fence went up. The last time we went there, it was disturbed. Someone had tried to pry some of the painting off the rock face and there was a fire built and beer cans. That was very disturbing to me. When the fence was constructed and we could not go across anymore, I hoped that this was a deterrent to the area, but in talking to other people who had been there and seen the destruction to the site, that was the reasoning for the fence, to keep looters and artifacts hunters out. That helped to easy my spirit a little, but I knew once artifact hunters knew of the area, more of it would be lost. I am very concerned about this site, although it may be across the road and out of sight. I believe that as more and more come into the area and have access to this canyon, our people's writing will be erased off the land. This is a sacred area and we should do all we can to protect it from damage. This is one of the treasures of the area and I feel that one day, someone will come in on all terrain vehicles and cart the rocks art away. I believe that the disturbance created by the gravel pit will further damage the area, by noise and dust, a person cannot go there and visit the area in peace anymore. Please move the gravel pit further away from the area and help preserve a piece of our heritage, so much has been taken away already. Thank you, Minerva Teeman Soucie, Burns Paiute Tribal Elder" (Quoted in its entirety) Recent Archaeological Studies of the Millican Area and the project area What follows are extracted portions of a study performed by the Dr Thomas Connolly of University of Oregon in 2001, for the Environmental Services Office, Oregon Department of Transportation. It is significant because it is one of very few that has been conducted in the target area and because it highlights several other, very important references to the sites which need protection in the Millican Valley. A copy of the entire report is included with other materials provided to the Commissioners. "The project area is in Deschutes County, in section 24 and 25 of T19S, R14E, sections 29 and 30-36 in T19S R15E, sections 1 in T20S R15E, sections 31-34 in T19S R16E, sections 1-6 and 12 in T20S R16E, sections 7, 8, 14-17, 23, and 24 in T20S RI 7E, and Sections 19, 27-30, and . 34-36 in T20S RISE, Willamette Meridian. The western portion of the project (ca. MP 21-25) includes the Millican Valley, following the course of Dry River whose channel meanders back 6 and forth across the highway corridor. Although the channel is generally dry, it does provide a . course for seasonal runoff, and water was observed in some deep bedrock cavities even during the driest portion of a drought year. The eastern portion crosses a generally level lava plateau, featuring shallow basalt bedrock mantled by unconsolidated pumice sand and ash. We observed no surface water in this segment of the highway corridor. Elevations in this corridor segment range from about 4200 feet (ca. 1280m) near the western project terminus to ca. 4700 (ca. 1430) at the eastern project terminus. "Dry River is a Pleistocene-age overflow outlet from the Millican Valley. The presence of salmon bones and shells of a species of snail found only in the Columbia River system have been reported from the Fort Rock Basin to the south, generating speculations for the existence of a former drainage outlet to the north. Since the highest Pleistocene lake stand of Fort Rock Lake is several hundred feet lower than the divides to the north, it is possible that such former channel has since been covered by younger lava flows. Dry River may have carved its canyon, draining a lake in the Millican Basin to the Columbia via the Crooked and Deschutes Rivers, during the period that Fort Rock Lake, to the south, overflowed (Brogan 1964; Baldwin 1981). "In the Fort Rock Basin to the south, human history is closely linked to hydrologic history. Between the extremes of the high Pleistocene lakes and the modern desert that now dominates the local landscape, Fort Rock Basin topography exhibits a complex of now-dry channels and lake beds that intermittently held water throughout the span of human presence in the region (at least the last ca. 13,000 years). When these features held water, relatively dense and sedentary human populations were also present (most notably in the Early and Middle Holocene); during periods of negative water budgets, human presence was more ephemeral, and populations were • highly mobile (Aiken and Jenkins 1994). Although virtually no systematic archaeological research has been done in the MUNcan Valley, it is likely that here the broad patterns of hydrologic and cultural history documented in the Fort Rock Basin are matched " (Bold added) "Archaeological work in the Fort Rock Basin and on Newberry volcano (which forms the divide between the Fort Rock and Millican valleys) document occupation spanning the last 11,000+ years, including some of Oregon's most well known and significant cultural resources (Bedwell 1973; Cressman 1942: Connolly 1999a; Aiken and Jenkins 1994). At times when central Oregon's internally-draining basins held water, the complex of lakes and marshes provided a rich source of food for significant numbers of people. Human occupation of central Oregon region during the pre-Mazama (older ca. 2500 years) era is especially well documented. Occupations of this age are also evident along the Hiway 20 corridor, as artifacts diagnostic of Early Holocene tool kits (Western Stemmed and Cascade-style projectile points and crescents) have been reported from sites within the highway corridor (Fulton and Fulton 1999). "Luther Cressman, Oregon's pioneering archaeologist, began his central Oregon studies in 1932, with a landmark survey of the state's rock art. In his autobiography (A Golden Journey, Memoirs of an Archaeologist), Cressman (1988:288) recalls that the first archaeological site he visited in central Oregon was a rock art panel in the Dry River canyon near Millican (this specific site is located ca. 100-150 in north of the highway corridor at milepost 22; Figure 8). He later described the panel as follows (Cressman 1937:16-17): 7 "The site is about 25 miles east of Bend ...The basalt is roughly columnar and an overhang • has been formed by the breaking out of the columns at the base ...There is a small sandy beach about 8 feet above the bottom of the gorge directly against the base of the rock. This was undoubtedly a camp site. • Pictographs cover a surface 25.5 feet long by 12 to 13 feet in height. They are painted in red with the exception of the highest, which has a yellow center in a circle. There are rectilinear and curviliear (sic) [curvilinear] designs, as well as animal figures. Among the latter is a small horse Other animal figures are the mountain sheep and the lizard... At an earlier date Judge Robert H. Sawyer and Mr. Phil Brogan, both of Bend, excavated to a depth of 3 feet at the base of the rock; at 12 inches they found obsidian flakes. Charcoal, animal bones, and flakes continued to be (sic) [the] bottom of the excavation." 8 • U • Pic: Early excavations of the Dry River Gorge site. Ray Hatton, author and Central Oregon historian, describes the pictograph site on the Walker property in High Desert of CentralOregon, 1997-3rd edition, p.51- 52) as follows: "In 1927, the discovery of traces of an Indian encampment in a small sandy area within Dry River Gorge was reported in the Bend Bulletin. Over 200 different Indian paintings (pictographs), showing deer, antelope, lizards, snakes, and a rayed sun, were indelibly painted in red and yellow pigment s on a small area of columnar basaltic cliff within the gorge... Directly under the writings and buried under two feet of drifted sand, hundreds of arrowheads have been recovered. Old campfires had been raked over and the yellow teeth of deer, antelopes, beavers, and coyotes found. Seashells were discovered in the burned remnants of the ancient camp fires, possibly proving that at least one migrating tribe had camped there. The fact that the arrowheads were of chipped obsidian (black volcanic glass) indicates ,4 that the tribes obtained materials for their spears, arrows, skinning knives, and needles from as far away as Newberry Crater. Other Indian campsites and pictographs have been located elsewhere in the old sand-choked river channel which meanders across the Central Oregon desert. Fossil bones of fish have been discovered in road cuts in the desert area where Lake Millican once covered the lake basin." What is unclear to many people who have not visited the site recently and who are under the mistaken idea that the rock panels were destroyed, that they are, in fact, in very good condition. With a little enhancement from Photoshop, the images come alive again. 9 • • • C yyf'D V p O rD PC h~► IC. Olq (D t C C v IT c to: -Al R i +/'d r^ S _ i a... A }j ok `I'Yt Enhanced in Adobe Photoshop C] . H Unenhanced CJ • x i~ n rD P 0 CD N O O ~d J Enhanced in Adobe Photoshop Enhanced in Adobe Photoshop d c rD 0 rD aL N O O b P~ Unenhanced • Unenhanced • d c rD P rl O rD PCJ CL N O O `Jl b G~ Enhanced in Adobe Photoshop _ .fi r" i_ T iiJf__' z C~ y~ i • Y Oy r ^as VI 1rD I v ~ rD N O O V 011-1 V Enhanced in Adobe Photoshop Unenhanced • c ,r h, - - 10. 13A 4 sommommiW1.31- 'am 4,, i~ t 1Yr- ,r r~ Returning to the Connolly report, "This site is also mentioned and illustrated in the comprehensive rock art volume published by Malcom and Louise Loring (1996). Over 200 images were noted and recorded. During the present survey we visited the pictograph panels noted in these publications. An archaeological site (35DS47) is recorded at Coyote Well within Dry River canyon that mentions pictograph panels, but the location mapped on the site form is ca. 250 meters eat of the main pictograph panel noted during our visit, and identified in the published accounts." It should be noted at this point that members of the Archaeological Society of Central Oregon (ASCO) have been working at the site since May of 2005, conducting preliminary survey and mapping work, including digital photography of the pictograph images located to date. The portion of the site containing the pictographs is much larger than reported in any of the references except Loring and Loring, measuring approximately 350 meters long by 60 meters wide, with a computed area of more than 4 acres. Pictographs are found on two, large basalt outcroppings, and consist of over 85 panels. Last week, the site was unofficially determined by Oregon State Archaeologist, Dr. Dennis Griffin, as being eligible for nomination to the National Register of Historic Places. The documentation package for official designation of eligibility includes a completely updated site form prepared by Don Zettel, archaeologist with the Sisters Ranger District, who is ASCO's current professional advisor. Again, returning to the Connolly report: is "At least two previous archaeological surveys have been conducted in and near the present project corridor. In 1992, the Bureau of Land Management surveyed parcels north of the highway between mile points 24 and 26 (the latter at the Millican town site) in connection with development of a proposed shooting range (Thomas 1992). Three sites (35DS84, 35DS86, and 35DS87) were recorded near the highway corridor that were found during the present survey to extend into the highway right-of-way. In 1997 the south side of the Horse Ridge-Frederick Butte highway section was surveyed in advance of a fiber optic communications cable emplacement (Sharp et al. 1998)." ..."Nine archaeological sites (35DS1430-1438) were identified in the highway corridor within the Horse Ridge-Frederick Butte section during that effort." Survey of the Horse Ridge-Frederick Butte Road section of Hiway 20 was conducted on July 23- 26,2001, by Dr. Brian O'Neill and myself (that is Dr. Thomas Connolly). Because of this prior corridor survey (Sharp- et al. 1998), the present effort was limited to the north side of the highway right-of-way.: "In addition of the twelve previously recorded sites along this segment, the present survey resulted in the identification and recording of seven new sites in the highway corridor, 17 artifact isolates, and six historic localities (mostly small can dumps)." The paper goes on to list all the cultural localities, and then continues with a summary and recommendations. "There is unambiguous patterning in the distribution of these sites along the corridor, almost all are associated with the Dry River drainage system, and are especially concentrated in the western portion of the project where the highway repeatedly crosses the Dry River meanders....None of the previously recorded sites in the highway have been formally 10 tested, but a single 50x50 cm probe was dug at three of the eight sites recorded by Sharpe et al. (1998) within the corridor of the proposed fiber optic cable ...on the south side of the highway. In all three cases cultural material was recovered to a minimum depth of 30 cm. During the present survey, a number of sites and isolates were identified at obvious ant hills, presenting the possibility that buried cultural deposits may exist along the corridor that are now identifiable where localized bioturbation has brought buried sediment to the modern ground surface. Any anticipated work within the highway corridor should be closely coordinated with the ODTO archaeologist to insure protection of these cultural resources. None of the recorded sites has been formally evaluated, and any anticipated work that might impact these sites should be preceded by a formal evaluation for National Register significance. (Bolding added) Most Recent Survey Archaeological Survey of the Proposed Spencer Well Mine, Deschutes County, Oregon March 30, 2005 Preparers: Todd Ogle, M.A. R.P.A, and John L. Fagan, Ph.D, R.P.A. On behalf of Jack Robinson & Sons, Inc., Archaeological Investigations Northwest, Inc. (AINW), has performed an archaeological survey of the proposed Spencer Well Mine Dry River parallels the south side of US Highway 20 within the proposed natural buffer north of the project area before crossing Horse Ridge in a steeply-cut canyon to the northwest. Tepee Draw, which was so-named because of the remains of Native American tepees found within the draw (McArthur, 1982), crosses the project area from south to north, where it meets the Dry River. Today, both Dry River and Tepee Draw are dry year-round... is Cultural Context "The proposed Spencer Well Mine is located near the northwestern edge of the territory historically occupied by the Northern Paiute, a group that occupied all of southeastern Oregon and much of western Nevada. Previous Cultural Resource Studies "Previous archaeological surveys in the Spencer Well Mine vicinity are limited to two surveys along US Hiway 20 (Connolly 1999, 2001), a 436-acre survey of a proposed shooting range (Thomas, 1992), and a survey of multiple locations for the Millican Valley Off-Road Vehicle Management Plan (Goodman 1995). Each of these surveys identified multiple archaeological resources. The closest previously-recorded archaeological site to the current project area was not recorded during a survey, but after a brief site visit in 1970 by John Fagan. Site 35DS47 is locate where Dry River enter the deeply-cut canyon across Horse Ridge, approximately 3.30 m (1,000 ft) northwest of the current project area. As originally recorded, this site consists of pictographs and artifacts such as bone, lithic debitage (stone flaking debris), a hammerstone, and several burials reported by local informants (Fagan 1970). This site included over 200 red and yellow pictographs depicting deer, antelope, lizards, snakes, anthropomorphic figures, and abstract . design, many of which have been destroyed through vandalism or have faded beyond recognition (Connolly 2001:Figure 8; Hatton, 1977). Beneath these pictographs, collectors have also found 11 "hundreds of arrowheads", and fire hearths that contained deer, antelope, beaver, and coyote • remains, as well as "seashells" (river mussel?) (Hatton 1977:52)..... In sum, the small amount of archaeological survey that has been performed in the project vicinity has resulted in the identification of a large number of sites and prehistoric isolates....The resulting pattern is a virtually unbroken string of short-term prehistoric occupations along the terraces above Dry River. In addition to prehistoric artifacts, small scatters of historic-period cans are common. These cans probably represent activities relating to either the Millican Valley boom of the early twentieth century ...or more recent cattle-ranching activities." While AINW concluded "that no significant archaeological resources will be impacted by the Spencer Well Mine," the study did not appear to address any potential impacts to the rock art panels that are located within 1,000 feet of the project area and less than 150 meters of Highway 20. ASCOBLM Partnership In 2003, the Archaeological Society of Central Oregon (ASCO) and the Bureau of Land Management (BLM) formally recognized the relevance of the Dry River canyon and entered into a five year partnership with the goals of cultural resource management, practical experience, and public land stewardship. The target study area was the Dry River Canyon in Crook and Deschutes counties, extending east from Hampton Buttes into the Badlands. They observed that the Canyon was increasingly experiencing impacts from use by the general public and agreed to work together to survey, inventory, and record heritage sites before they could be damaged. Evidence for both Indian and historic archaeological remains would be sought out and recorded • in detail. Recent or modem evidence of use would also be located on maps and recorded, but in less detail than archaeological evidence. No formal study of this Pleistocene lake and the Dry River had been performed to date. Work is progressing on this project, with several surveys having occurred and several pictograph sites recorded on public lands managed by the BLM. As mentioned previously, the only official site form which is on file with SHPO dates from 1970 (John Fagan). This form contains a dismal description of the site: "Site is located in a dry wash east of Horse Ridge at the point where Tepee (sic) Draw leads into the upper end of Dry River ca. 5 miles west of Millican on Highway 20" and reported that the site was "Nearly completely destroyed by collectors." Materials previously collected were reported as: "Unknown but it appears that there were several burials associated with red pictographs." Materials collected by survey consisted of "bone and waste flakes and hammerstone." Fagan's recommendation for future work was "site should be salvaged." And, in fact, this has occurred. In 1988, conservator Greg Bettis, in association with the property owner at the time, Mr. Ed Park, along with Dan Mattson, Confederated Tribes of Warm Springs archaeologist, and members of the Northern Paiute tribe, including Mr. Wilson Wewa, Jr., conducted an extensive restoration effort, captured on video tape, which removed the graffiti from the rock faces on what we are calling the "west wall." If you visit the site today, it is nearly impossible to see past vandalism on that wall. The other main rock face, at the far eastern segment of the canyon on the Walker property was virtually untouched by vandals, probably owing to its faded condition which may have significantly protected it. However, as you can see, computer enhancement reveals beautifully red-pigmented images. 12 •e 1 r J t r - R7~i r,. n a -`=mss w J} a ¢ -tom ~ P s ,y i a n r e~y CD `C con n O O Pt e'7 (7 CD C CD r-t 7-t r+ O h CD N 0 • In addition, due to the efforts of the most recent owners of property, such as Ed Park and the current owners, Clayton and Tammera Walker, the site has been watched over and protected from unscrupulous trespassers. Mr Wewa and other tribal groups have permission to visit the site at any time, but this has been made less convenient for them due to the need for barbed wire fencing and a locked gate. The Walkers have encouraged groups such as ASCO, the BLM and the Forest Service to visit the site for educational purposes. In an effort to ensure the site's continued protection, the Walkers have been working with ASCO, members of the Landmarks Commission, and the State Historic Preservation Office (Dr. Dennis Griffin, State archaeologist), to nominate the pictograph component, and later the historic component of the property (Coyote Well) to the National Register of Historic Places. Dr. Griffin reviewed photographic documentation last week (August 17, 2005) and acknowledged the site's eligibility to the National Register. In addition to studies being conducted world-wide relative to the negative impacts of air contaminants, one such study is being conducted in Oregon involving the Forest Service, the Columbia River Gorge Commission, and others, as reported in the Bulletin on August 11, 2005. While conditions in the Columbia Gorge do not mirror those in Central Oregon at present, there are warnings to be heeded. It was reported that "river canyons have air pollution problems no matter where they are...they funnel and channel it and its hard to disperse it." There are concerns about cultural resources, such as Indian rock art and other cultural treasures. "We don't know what the effect will be...pollutants such as ammonia and acidity can gradually destroy Indian petroglyphs" • More from Australia's Dr. Bednarik: "Geophysical damage of rock art sites can be occasioned by large-scale human modifications of the lithosphere. Examples are the extraction of minerals, such as coal, by the 'long-wall' mining method, or the extraction of ail, gas or water. These methods lead to subsidence of upper strata, and consequently affect features such as rock shelters in these surface facies. In Australia, such subsidence is attributable to underground coal mining in the Woronora Plateau where it has caused damage to shelters containing rock art (Sefton 1995). Monitoring provides the opportunity for appropriate conservation measures. Dust can be a significant factor in the deterioration of sheltered rock art, particularly through trampling of the floor sediment and archaeological excavations (Morwood 1994). Moreover, Watchman (1998) has shown that dust raised from vehicular traffic on a nearby unsealed road can be highly effective in establishing a dust cover over rock art. His painstaking work at Split Rock, north Queensland, has also shown that such dust particles can comprised carbon-rich compounds probably created in diesel exhausts which become attached to the dust while still hot. Transported as aerosols in the wind, this material not only settles on rock art, it can significantly distort the carbon system of the surface deposit (the hydrocarbons are 14C-free).... Airborne dust occurs naturally, but many human activities exacerbate the problem significantly (construction, land degradation, deforestation, etc.). While it is washed off by rain at open sites, it accumulates in sheltered locations and often becomes incorporated in surface mineral deposits..... If there is should be any doubt about what the principal threat to rock art is, it would be well to recall that 13 some of the best-preserved rock art can be found within the exclusion zones of American • radioactive waste dumps." A dramatic illustration on the impact of air pollution on stone is shown in the figures below, photographs of the same ornamental figure taken in 1908 and 1968 at the Herten Castle, Ruhr Valley, Germany. While the statue is sandstone, and the Ruhr Valley was highly industrialized, the comparison is dramatic and makes the point better than words 1908 • 1968 Compilation by Susan Gray, member Archaeological Society of Central Oregon (former 2 term President), Oregon Archaeological Society, Nevada Rock Art Foundation, and Deschutes County Historical Society. August 22, 2005 n U 14 Monographs 21123 • OFOREGON COUNTRY Parts I &I I SECOND EDITION J. Malcolm Loring 0ouise Loring BRITISH COLUMBIA WASHING ON ~COLUM BIA RI~~ Part 1 _ Part 2 CALIFORNIA NEVADA Institute of Archaeology Oniversity of California, Los Angeles 1996 ti 0 Pictographs and Petroglyphs of the Oregon Country • 0 Site 83. Bombing Range, Deschutes County, OR, 35-09-B.'R. Site 83 is a rock-rimmed channel of old Dry River with pictographs on waterworn lava rocks.A few natural bowls in the channel had water in them in late May 1970, probably the only surface water for miles.At the upper end the channel is narrow, about IO to 15 feet wide, and the pictographs are on both sides of the channel. Below a rocky rapids area, a cave on the west side of the channel has several good pictographs. One painting is on the rim opposite the cave. In the cave and nearby are numerous black marks which make patterns and appear to be the same age as the red pictographs. On our last trip to the site, we discovered some fig- ures below ground Ievel.The pumice sand had to be shoveled away before we could take pictures. One of the large designs (fig. 103c) is similar to designs in Rattlesnake Canyon, Sherman County, site 25 (fig. 29c) and Macks Canyon Campground, site 26 (fig. 29p). However, the many designs at this site are not similar to Dry River Gorge, site 84, which is only 4 miles south. Last visit: 5/70. See figs. 102, 103. V.4~ JY f9, aood, w3' k)-L)q a &P "I~I I C ~ I ~m .b e If ® I 8 I I ~o / nn 7 I I I I I 1 I9 h I 0 0 e 0 e 0 e~ _ I + 12° oe a~ ~0 0 Id If I a~ I I 9 i h i I 11 p~ e I I I n I k I I - -L I I I 1 Figure 103 100 h OREGON a II Ib. Id le pees toes C Mig Il I .h Jig I ~o11Y11U ~ Ip k I I Q~ - - e -I e ~ ml e O 12° 0 m ngure iua Site 84. Dry River Gorge, Deschutes County, OR, 3S-09-D.R. Site 84 is located east of Bend at the upper end of Dry River Gorge.The lower site is on a large face in an overhang of the basalt cliff.The upper group is up the canyon on low rims facing north- east. The designs reportedly are dimmer than when first noted in the 1920s. Except for a small piece of one pictograph (fig. 107a) we not only found all the designs shown in Cressman's Site 9, Figure 5 (1937:16-17), even though some of his drawings had been inverted, but also found more designs and marks than he illustrated. Some red figures had been covered with a white substance, like paint, for black and white photography. p~ Phil Brogan's picture (1964:96-97), which shows the white color, was clear enough to compare to our pictures.The faintness of many designs near ground level made it necessary to outline the pictographs with school chalk in order to take pictures. On many we used a dampened sponge in order to determine the design under the white, limy effluvium.The red color shows up better when the rock is in a Iht shadow. The spots of yellow pigment found here are very unusual in Oregon pictographs. Digging and screening activity was evident with charcoal and obsidian waste flakes visible. Brogan stated that arrowheads were found here in early days. Last visit 8/15176. See figs. 104, 105, 106, 107, 108. a~ Ib (D I Ie I v:cuL1Z11Z!11 I I I - -I - ! ~h t I9 V" I I- - - ~ ~ 9 ~ I ~ II - - - - - it ® k ~ ~eBae9 a 90@69 ge as as 9 ~ f!J U bH -9BBBBBeo 8 ege I n e'~Z7/ -'CIO ~ ~ I 1e ~ I ® I 0 le I I I I~ I I I q I Q I~ I G Yv > le' 101 Pictograp-hs and-Petroglyp-hrdrthe-Oregon- ount -y 0 Ib Id 7 I I 0 1 e e • rl ; vrJ - -I+ ® I •8 I ® I 9 II l h - - I. ov Figures 107 (left), 108 (right) Ar. IC I e b I d I41 ~gei e 0 ~e I 1 12" i a d f 9 Get ,I ftIh Z" ~ IYLJ Figure 109 102 Site 85.Whitaker Holes, Deschutes County, OR, 35-09-W. H. Site 85 is on the south side of a Dry River channel on a low basalt rim east of Millican. Red pictographs are on a north face of rimrock.They are exposed to sun only in early morning on the longest days in June. Most designs are rather dim except for the human and lizard figures F' There are circles, grids, dots, lines, and other ~x designs similar to the upper group at Dry River Gorge, site 84, about 12 miles west # The site was described in the Bend Bulletin 8 October 1966, and in the Portland Oregonian (lo October 1966). We visited the site on 13 October 1966, and again in September 1969 at which time we checked other rims up 0ry River for 2 miles.We found no additional F pictographs or evidence of a large campsite, although we did see a scattering of obsidian f• and agate flakes. Last visit 9/69. See fig. 104, u u OOa- b% / r,I h; ~T i t { l ~ Ic MUSEUMS; HISTORIC PRESERVATION 358.905 (b) Educating the public regarding Ore- ORS 358.710 to 358.770. [1981 c.480 §I; 1991 c.216 gon's natural and archaeological history; and §11 (c) Mounting special exhibitions from time to time. (2) The Oregon State Museum of Natural History shall be located in the museum com- plex, Alton Baker Park, Eugene, Lane County, Oregon. Future plans for the mu- seum complex are recognized to include a science museum-planetarium, the Lane County Pioneer Museum, an adequate park- ing area, a park setting and other facilities appropriate to a major museum complex. (3) The museum's construction and oper- ation shall be the responsibility of the Lane Cooperative Museum Commission. (4) The state agency responsible. for state participation in the Oregon State Museum of Natural History shall be the Department of Transportation. [1979 c.852 §11 358.885 Lane County matching fund relationship. (1) In relation to the Oregon State Museum of Natural History, the De- partment of Transportation is authorized to enter into a relationship with Lane County based upon local matching funds and efforts being available in fact. (2) The Department of Transportation shall, in calculating the value of funds or other local efforts to be appropriated by Lane County, consider the value of existing or fu- ture construction, facilities in place, land- scaping, gardens and all improvements made or to be made by Lane County. [1979 c.852 §21 OREGON STATE MARITIME MUSEUM 358.900 Oregon State Maritime Mu- seum; functions; participation by Depart- ment of Transportation. (1) Columbia River Maritime Museum, Incorporated, is designated the Oregon State Maritime Mu- seum. The activities of the museum pertain- ing to its function as the Oregon State Maritime Museum may, include, but are not limited to, the following: (a) Extending and improving public ac- cess to state and privately owned maritime collections of historical, informational or technical interest and any other maritime items or collection of maritime items that may be acquired in the future; (b) Educating the public regarding Ore- gon's maritime history and involvement; and (c) Mounting special maritime exhibitions from time to time. (2) The Department of Transportation is responsible for state participation in the Co- lumbia River Maritime Museum in the same manner as the department is responsible for other historical museums in the state under i Title 30 ARCHAEOLOGICAL OBJECTS AND SITES 358.905 Definitions for ORS 358.905 to 358.961; interpretation. (1) As used in ORS 192.005, 192.501 to 192.505, 358.905 to 358.961 and 390.235: (a) "Archaeological object" means an ob- ject that: (A) Is at least 75 years old; (B) Is part of the physical record of an indigenous or other culture found in the state or waters of the state; and (C) Is material remains of past human life or activity that are of archaeological significance including, but not limited to, monuments, symbols, tools, facilities, techno- logical by-products and dietary by-products. (b) "Site of archaeological significance" means: (A) Any archaeological site on, or eligi- ble for inclusion on, the National Register of Historic Places as determined in writing by the State Historic Preservation Officer; or (B) Any archaeological site that has been determined significant in writing by an In- dian tribe. (c)(A) "Archaeological site" means a_ ge- ographic locality in Oregon, including but not limited to submerged and submersible lands and the bed of the sea within the state's jurisdiction, .that contains archaeolog- ical objects and the contextual associations of the archaeological objects with: (i) Each other; or (ii) Biotic or geological remains or de- posits. (B) Examples of archaeological sites de- scribed in subparagraph (A) of this paragraph include but are not limited to shipwrecks, lithic quarries, house pit villages, camps burials, lithic scatters, homesteads anj townsites. (d) "Indian tribe" has the meaning given that term in ORS 97.740. (e) "Burial" means any natural or pro- pared physical location whether originally below, on or above the surface of the earth, into which, as a part of a death rite or `dentli ceremony of a culture, human rem6no worn deposited. (f) "Funerary objects" means any arf.l- facts or objects that, as part of A. death OW, or ceremony of a culture, are reasonabl 1* lieved to have been placed with hidiv=1 human remains either at the time of th or later. Page 509 ( I litl",A) Paul Blikstad From: DEFREITAS Susan [Susan. Defreitas@state.or.us] Sent: Thursday, March 17, 2005 1:33 PM • To: Receipt notification requested Cc: GRIFFIN Dennis; ROPER Roger Subject: Reply to inquiry from Catherine Morrow, Deschutes County Community Dev. Mr. Blikstad, I apologize for the abruptness of this letter. I am assistant to Dr. Dennis Griffin, Lead Archaeologist with the State Historic Preservation Office (SHPO), here in Salem. I was instructed by Ms. Catherine Morrow from your office to send you this letter, which I hope will address some concerns expressed by Ms. Morrow about state regulations in regards to archaeological sites and notification to Native American Tribes. Ms. Morrow contacted me, in lieu of Dr. Griffin since he. is out-of-state at conferences, on March 10th with some questions about a Deschutes County Land Use project (I think your project number is PA-04-8, ZC-04-6) currently being reviewed by the Deschutes County Hearings Officer. Ms. Morrow faxed a copy of Dr. Griffin's letter to you dated February 7,, 2005 and the letter from Deschutes County Historical Landmarks Commission (DCHLC) to Hearings Officer dated February 15th. From our phone conversations, I believe Ms. Morrow's concerns focused on the question of when it is required for the County to contact the appropriate Native American trib(s) regarding an archaeological site. If this project were treated as a project being reviewed under Section 106 of the National Historic Preservation Act (36 CFR Part 800), then the first question would be, are there any historic properties in the project area? This question is echoed in Dr. Griffin's letter to you dated February 7, 2005, with the recommendation for a Cultural Resource Assessment Survey (CRAS) be conducted. ~I understand, from a copy of the letter from DCHLC to Deschutes County Hearings Officer dated February 15th, that two County Planners, Pat Kliewer and Wil Groves did observe artifacts on the surface of the property during a site visit. Common knowledge of a site does indeed qualify it to be considered an archaeological site in Oregon under the current interpretation of Oregon Regulatory Statute (ORS) 358.905-358.955. However, for us (SHPO Archaeological Services) to be able to review the recommended CRAS report, which would include a SHPO site form recording the site), the information needs to be submitted by a "qualified archaeologist" as defined in (ORS) 390.235 (6) (B) (b). I do feel the need to issue a small note of caution at this point about the conveyance of information about details of artifacts and/or an archaeological sites into the public record. What motivates my note of caution was reading what artifacts were found where during the site visit by the two planner to the private property in the letter. I understand that this information is now part of the public record. Although its is a rather unattractive thought, this information about artifacts and site, now in this correspondence to the Hearings Office provides information to those who might want to steal or loot. It may be something to consider in future commission meetings and dealing with sensitive issues such as artifacts and archaeological sites. According to ORS 358.920, "A person may not excavate, injure, destroy, or alter an archaeological site or object located on public or private lands in Oregon unless that activity is authorized by a permit issued under ORS 390.235." If a CRAS conducted by a qualified archaeologist establishes the existence and boundaries of an archaeological site, then any future ground disturbing activities necessitate an archaeological permit. In Oregon Administrative Rules (OAR) 736-051-0090(2)(a)(b) it is recommended, not required, that anyone considering a development project on private lands on previously undisturbed ground contact SHPO (which has already been done and SHPO has issued its e ecommendations) and the appropriate Tribes(s) to determine whether archaeological sites nd objects are likely to be present in their project area. I believe it is during the application process for an archaeological permit that the appropriate Tribes (as determined by CIS) would be contacted (a requirement) to review the excavation permit. 1 I would encourage the private landowner with the site in question contact our office early in his development plans, regarding any questions about both proposed construction activities and archaeological excavation permits. I would also encourage the landowner to contact Karen Quigley from the Commission on Indian Services at 503-986-1067.to discuss which Native American Tribes would be appropriate for the area of concern and guidance on contacting the tribal representatives. I hope this summary of rules and regulations for archaeological sites on private lands is helpful. Please do not hesitate to contact me either via email or phone. Thanks very much for your patience, Susan de Freitas, M.A., R.P.A. SHPO Archaeologist State Historic Preservation Office Oregon Heritage Conservation Division 725 Summer Street, NE, Suite C Salem, Oregon 97301-1271 Susan.deFreitas@state.or.us (503) 986-0675 (503) 986-0793 FAX www.hcd.state.or.us 2 DESCHUTES COUNTY HISTORICAL LANDMARKS COMMISSION Serving the Certified Local Governments of Deschutes County, Bend, Redmond and Sisters Jack Nelson, Vice Chair Redmond Representative Paul G. Claeyssens, PhD. C. Ex-officio, U.S. Forest Service Ron Gregory Ex-officio, Bureau of Land Management Martin Hansen, Attorney at Law Unincorporated County Representative Douglas G. Knight, P.E. County At-large Representative Richard Martinson Bend Representative Nicole Nathan, M.A. Ex-officio, Museum Studies Jon Sholes Deschutes County Historical Society Representative Barb Smiley Pioneer Association Representative :Dwight Smith, Secretary Sisters Representative Steve Stenkamp Ex-officio Derek K. Stevens, Chair County At-large Representative Don Stevens, A.I.A. County At-large Representative Sally Bird, Tribal Archeologist Confederated Tribes of Warm Springs Pat Kliewer, M.P.A. Staff to Commission, Associate Planner, Cultural and Historic Resources Feb. 15, 2.005 Anne Corcoran-Briggs, Attorney at Law Deschutes County Hearings Officer Deschutes County Community Development Department 117 NW Lafayette Bend, OR 97701 RE: PA-04-8, ZC-04-6 Dear Ms Corcoran-Briggs, The Landmarks Commission is appointed by the Deschutes County Board of Commissioners. The Commission serves the County as a land use decision-making body on applications that may affect designated historic and known cultural resources. The Commission acts in an advisory role to the Board on legislative matters and helps the Community Development Department meet Federal and State archeological regulations and laws. The Commission includes three ex-officio archeologists: Ron Gregory of the BLM, Paul Claeyssens of the US Forest Service and Sally Bird of he Confederated Tribes of the Warm Springs Reservation. The Commission found out about these applications from interested parties two weeks ago. The Commission requests that the public hearing be continued at least eight weeks and the record be left open to receive evidence on all topics, especially involving water resources, archaeological resources, historic resources, and wildlife and plant resources. None of these topics have been adequately addressed by the application or staff report and the Commission will add information to it for your consideration. We respectfully make this request because more information and research is needed before we adequately identify the issues and write our report and recommendations. It is also required that the county notice special parties because of the archaeological and historical sites in the vicinity and the high likelihood that there are prehistoric artifacts and possibly burials on the subject site that are protected by Federal and State Laws. Des Chutes Historical Center, 129 N.W. Idaho Avenue, Bend, Oregon 97701 . Phone: (541) 388-7927 Fax: (541) 385-1764 patk(c-D-co.deschutes.or.us During a site visit on Feb 6, County Planners Pat Kliewer and Will Groves observed artifacts lying on • the surface of the subject property, including a spear point and six quarter size obsidian flakes in a twenty minute walk into the Dry River. The applicants report that they have observed small piles of obsidian flakes on site. These are usually left behind when a prehistoric hunter sat unobtrusively waiting for game or birds and either created a stone tool or sharpened his tools while he waited. Today we see property in isolated pieces defined by fences, roads or ownership. That was not the case in the Millican Valley prior to 1860. This property was well known for its seasonal use by the Northern Paiutes for good water just under the surface in Dry River, burying its dead, camping, celebrations, digging root plants for food and for its good hunting. It was adjacent to the burial grounds and sacred site in the Dry Canyon slightly to the northwest of the subject site on the Walker Ranch. Wilson Wewa, a Northern Paiute spiritual leader, prays in this canyon near the pictographs that his tribe painted, commemorating significant events and other ideas for the past 22,000 years. The pictographs were enhanced by spiritual leaders over the centuries to keep them fresh. They are made from the fine deep red clay found on Horse Ridge and mixed with a binder such as bear grease. They are literally the history of the tribes and give important survival information. Wilson's grandmother was a Native speaker and told their meaning to Wilson Wewa. They continue to have meaning in his life and the tribe's culture today. These pictographs were inventoried many times since the 1930s by professional archaeologists associated with major universities. They are among the best in the state. The other pictographs in this canyon, located a mile below these in the Badlands, have been deteriorating rapidly during the past three years, due to vandalism and hundreds of visitors touching them and tracing them with their fingers. However, the three walls of pictographs associated with the site on the Walker Ranch are in good condition. They are a cultural resource that is designated as significant and as a sacred 0 site by the Paiute Tribe and must be protected. The Commission and the applicants will explore concerns about the effects of the vibrations, blasting, rock crushing and other noise and percussions from the proposed mining operations on the Walker Ranch pictographs and the compatibility of the sacred site and the mining operations. 'The State Archaeologist Dennis Griffin maintains the database of all archeological reports and investigations in Oregon. Based on known research on this site, he recommends that an archaeological survey be competed and reported before the County closes the hearing and makes a decision on this case. A list of approved archaeologists that the applicant can hire is on the SHPO web site. The reports may be provided to you, but be kept confidential and are exempt from the public records law. Additionally, one of two historic wells in the Millican Valley that were hand dug to provide domestic water and to water livestock feeding on the bunchgrass during homestead days is immediately adjacent to this site, just north of Highway 20 in the Dry River. It is called Coyote Wells and is identified on the USGS Quad map. The well until recently was associated with a hand made wooden wind mill that operated to bring up water into a cattle trough. The well was hand dug and lined with basalt rock, blocks. It is only 20 feet deep and has never gone dry, even in summers in drought years. It sits on a solid layer of basalt that forms the bottom of the river and the Millican Lake. A hydrology study of the effect of the mining pits on this well needs to be done. On a site visit Des Chutes Historical Center, 129 N.W. Idaho Avenue, Bend, Oregon 97701 Phone: (541) 388-7927 Fax: (541) 385-1764 patk(D_co.deschutes or us on Feb 6, another naturally occurring water pool in the Dry River on the site of one of the mining pits was observed. It provided water for an antelope herd on site at the time. The property is designated antelope habitat. It has a rare perched water table in the Old Millican Lake Bed that is being researched by Oregon Water Resources office in Oregon City. We are requesting copies of their report on this unusual water system and an opinion on this well and other water resources if the pit mines are dug. The past President of the Archaeological Society of Central Oregon, Susan Gray, telephoned us two weeks ago to let us know about this application. Until that call, we were unaware of it. Therefore, we have not had enough time to adequately review this case and to assist the county in sending proper respectful notification of the tribes and others who can help us by sharing their records, to receive responses or to research the issues that have arisen so far. We obtained a copy from Paul Blikstad of the list of parties sent a public notice by the County and found that many parties who are required to be noticed were not noticed. We are preparing notices and requesting comment from the Confederated Tribes of the Warm Springs Reservation, the Burns Paiute Tribe, and the Klamath Tribe. The State Historic Preservation Office (SHPO) and specifically the State Archaeologist Dennis Griffin are also required to be noticed. The SHPO was called by an interested party, but Mr. Griffin has never received official notice from Deschutes County and the Commission received letters he wrote to the County and the applicants today. A courtesy notice to the BLM archaeologists Ron Gregory and John Zancanella and a request to comment on the sites in the Dry River will be sent. The BLM has a Memorandum of Agreement with ASCO to assist with archaeological surveys on both public and private lands in the area of this site and along the Dry River. They have extensive information about the sites on public lands around this site, including the Badlands pictographs and camps. A courtesy notice will be sent toXon Uc,) ZettW, archaeologist for the US Forest Service, an advisor to ASCO, requesting comment. In a meeting with the applicants on Wednesday, Feb. 9, 2005, Ron Robinson, Jr. and Tyler Saunders indicated that they would not oppose our request for a continuance and they welcomed the information that would come from studies and the comments that are needed. We hope that you will grant this continuance and allow us time send the required and courtesy notifications, advise the County, research the historic and cultural resource issues, and to provide you with information and reports that will be applicable to your decision. Sincerely, Derek Stevens, Chair Pat Kliewer, Deschutes County Associate Planner, Historic and Cultural Resources. Des Chutes Historical Center, 129 N.W. Idaho Avenue, Bend, Oregon 97701 Phone: (541) 388-7927 Fax: (541) 385-1764 PatkP-co.deschutes.or.us FFR-~ - ~.~i4 53 UKE FHKK.~, & REC Jt7 5~ ~ a r. ence erV Parks and Recreation Department Orevon } He4tago Conservation Division Theodore R i4ilw►go9ki, Governor 725 Summer St. NE, Suite C 0 February 7, 2005 Mr. Paul $likstad Deschutes County Land Use Planning Office 117 NW Lafayette Ave. Bend, Old 97701 RE. Proposed Quarry #PA 048 ZC0406 Dry River Gorge Deschutes County bear i&. Blikstad:- Salem, OR 973m1-127], (503) 98b-0'707, FAX (503) 986-0793 www,hcd.state.orus Our office Tuts recently received a map outlining the location of a proposed quarry area in Deschutes County. I had written you em Tier regarding our office's coneems over the potential destruction of archaeological sites within the project area. In our earlier letter (28 January, 2003), I requested a map of the project aroa so that I could compare the area to our statewide archaeological database. With the recent arrival of such a map I was able to determine that k nowa archaeological sites (including a large rock art site) are located in close proximity to the proposed quarry area, While currently there have been no surveys an lauds within the proposed application, this is largely due to the land being in private ownership. Due to the very high likelihood of significant sites being present within the proposed area, I suggest that your office contact the project applicant and request that they complete a cultural resource survey of the project area prior to the approval of any ground disturbing activities. Oregon state law (ORS 358.905 and ORS 97.740) protects archaeological sites and objects atd human remains on both state public and private lands in Oregon. I hope that by providing the above-suggested archaeological Survey, damage to any archaeological sites in the area of your proposed project can be avoided. A list ' of possible archaeological consultants can be found on our web page (www.hcd.state.or.us) by clicldxtg on SBPO and highlighting the section marked Archaeological Permits. If you have any questions about the above comments or would like additional information, please feel to contact me at your convenience. L7earris Geffiu, Ph.D.( A SIPO Lead Archaeologist (303) 98b-0474 sienna s, ariMn@state. or. us 73d?0~9998 av.t tu,ra L 7zesou.rces 1~)epa rtmewt • Phovle: 541) 553-2000 FPX: 541) 553-3584 April 21, 2005 Pat Kliewer Associate Planner Deschutes County Historical Landmarks Commission 117 NW Lafayette Bend, Oregon 97701 RE: Comment on Plan Amendment and Zone Change for 365 AC from exclusive Farm Use to Surface Mining Dear Ms. Kliewer: Thank you for the opportunity to comment on the proposed plan amendment and zone change submitted by 4-R Equipment, LLC. Upon review of information provided by Deschutes County Historical Landmark Commission, which includes comments from Dennis Griffin, State Historic Preservation Office (SHPO) Archaeologist, and the Staff Report completed by the Deschutes County Planning Division, it is the Confederated Tribes of the Warms Springs Reservation of Oregon's (CTWSRO) recommendation that, prior to passing and implementation of the proposed plan amendment and zone change, an oral historical study and archaeological inventory be completed. In clarification, we would like to emphasize that the CTWSRO, pursuant to Tribal Code Chapter 490 Protection and Management of Archaeological, Historical and Cultural Resources (Tribal Ordinance 68), does have a commitment and interest in those properties that are prehistoric, as well as those considered historic, as these properties are fundamental to the recognition and understanding of lifeways, values and histories of the Tribes. The CTWSRO's position is that lands within Central Oregon, inclusive of Deschutes County, consist of ceded lands, as well as usual and accustomed lands, and, therefore, resources within the those lands, whether prehistoric or historic, would be of interest to the Tribes based on Tribal Ordinance 68. In review of the Staff Report provided, several opportunities appear to have been provided to address cultural and archaeological resources within the review process. For example, under OAR 660-15-0000, State-wide planning Goals and Guidelines #5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) (p.22), the finding by staff was that the goal had been specifically addressed in relation to criteria set forth in OAR 660-023 (ESEE Decision Process); however, when reviewing the section related to OAR 660-023 the only reference found for historic areas is listed as section 18.16.020 "K. Replacement dwelling to be used in conjunction with farm use listed on the National Register of Historic Places" (p. 16), and is addressed within the realm of potential conflicting uses. Within the Staff Report, the specific intent/definition behind OAR 660-15-0000 State-Wide planning Goals and Guidelines.#5 is not clarified. National Register Bulletin Nos. 15 (How to Apply the National Register Criteria for Evaluation) and 38 (Traditional Cultural Properties) view Historic areas or properties as districts, sites, buildings, structures, and objects significant in our prehistory and history. These properties represent the major patterns of our shared local, State, and national experience, all of which may be considered under the National Register of Historic Places (NPS 1990). The views of the CTWSRO parallel those put forth in the National Register Bulletins. Specifically within the category of what . constitutes a site under the National Register Bulletin No. 15; a "site is the location of a significant event, a prehistoric or historic occupation or activity where the location itself possesses historic, cultural, or archaeological value regardless of the value of any existing Pat Kliewer Comment on Plan Amendment and Zone Change for 365 AC from exclusive Farm Use to Surface Mining. Pg.2 • structure." (pg. 5). Also, traditional cultural property is a possibility due to the statements of a Private Citizen tribal member and thus, must be considered in the. broader scheme of the project. Given CTWSRO knowledge of guidelines set forth within the National Register Bulletins, the vagueness of the intent/definition behind OAR 660-15-0000, and the apparent lack of information that the Deschutes County Planning Commission appears to have with regards to cultural resources in the plan amendment and zone change area, the CTWSRO believes that this portion of the review process has not been adequately addressed. Also under OAR 660-023 is a potential conflicting use consideration listed as section 18.16.025 T. Churches and cemeteries in conjunction with churches that are not within 3 miles of an acknowledged UGB" (p. 17). The CTWSRO understands that the intent of the consideration was to address those churches, and associated cemeteries, from a more contemporary or current usage time frame; however, concern has been raised by a Private Citizen tribal member with regards to religious traditional and ongoing use of the area and the possible presence of tribal affiliated burials within the vicinity of the proposed plan amendment and zone change. The SHPO verified the presence of a known archaeological site adjacent to the proposed plan amendment and zone change area, which does include burials. Based on the statements made by the Private Citizen and SHPO's documentation, the CTWSRO strongly recommends that an oral historical study and a cultural resources inventory take place on the property so that such sites may be evaluated under section 18.16.025 C and under 18.16.020 K. Federal and state laws afford protection to known sites on public or private land. The CTWSRO recommendation takes into consideration the possibility that this multifaceted site may extend onto the private property in question. Finally, under Chapter 18.18.136 of Title 18, Amendments (p. 24) k. (p.26) it states that "SM zoning shall be prohibited in critical and sensitive resource areas (such as fish and wildlife habitats, wetlands and riparian areas, recreation and open space areas, and archaeological and historic sites) when such areas and resources have been evaluated in light of all comprehensive plan goals and policies..." The CTWSRO does not believe that such archaeological and historic sites have been evaluated to any acceptable degree by the Deschutes County Planning Commission and would like to see this portion of their Staff Report revisited with consideration given to performing an oral historical study and cultural resources inventory. Once again, thank you for requesting comments from this department, and if you have any further questions or concerns regarding our recommendation, please contact our office at 541) 553-2006, or via e-mail at sbird@wstribes.org Sincerely, Sally Bird Cultural Resources Program Manager cc: Robert A. Brunoe, NR General Manager / THPO Charles Calica, CTWSRO S/T .7 Liregon TMeadom R Kulo oalci, Governor • January 28, 2005 Mr. Paul Blikstad Deschutes County Land Use Planning office 117 NW Lafayette Ave. Bend, OIL 97701 RE: Proposed Quarry Dry River Gorge Deschutes County Dear Mfx. Blikstad: Parks and Recreation Department Heritage Conservation Division 725 Sumner St, NE, suite c Salem, OR 97301-I271 (503) 986-0707 FAX (503)'986-0793 www.hcd.state,onus Our office has recently received several reports regarding a proposed quarry operation in the Lary River Gorge area in Deschutes County. While not leaving received any project.-specific traps or details it appears that the above project is being proposed in an area knotiNm to possess numerous significant ctiItu ral resource sites, I believe that your county file number for this project is #PA 048 ZC0406 and the proposed application is for a 385 open mime aggregate pit. Without project specific information that would enable me to pinpoint the exact location of any kn.omm cultural resources within your project area, I am unable to inform your planning office of the potential affect this project may have on significant cultural sites in the area. Due to the very high likelihood of significant sites being present, I suggest that your office contact the project applicant and request that they complete a cultural resource survey of the project area prior to the approval of any ground disturbing activities. Oregon state law (ORS 358,905 and ORS 97.740) protects archaeological sites and objects and hutnatt remains on both state public and private lands in Oregon. I hope that by providing the above-suggested • archaeological survey, damage to any archaeological sites in the area of your proposed project can be avoided. A list of possible archaeological consultants can be found on our web page (www.hcd.state.or.us) by clicl ng on SHPO and highlights.-ig the section marked Archamlogical Permits. If you have any questions about the alcove comments or would like additional information, please feel to oontact the at your convenience. / / ennis Griffin, Ph LA D., SH PO Lead Archaeologist (503) 986-0674 dernis.griffinAatate onus cc, Roger Roper, SHPQ James Han-lick, HCD Wilson Weewah 73416.094 f=rom: Dennis Griffin To: "99osa(Mackrobinsonandsone.com",ORGoVT, INTERNET Date: 2/8/05 3;31 PM • subject: Re, Horse Ridge Surface Mine Ron, Thank you very much for sending me the copy of a map of your proposed project area. I have compared it to our statewide archaeological database and find that there is a large site containing pictographs and human burials that is directly adjacent to your proposed project area. To date, there has been no survey of your property but it appears likely that the site could easily extend Into the current proposed project. I have drafted a letter to the Deschutes County Planning office regarding my concerns. Having not been out on the property I am unaware how the topography in the area may change or remain consistent when Dry Creek crosses the highway and how the use of the land may change over current property boundaries but with the presence of known human burials, rock art and cultural material throughout the adjoining area, I would strongly suggest that a cultural survey be conducted in your project area to make sure that no significant archaeological sites or burial areas are affected by than proposed quarry. Let me know if I can be of any further assistance. X Dennis / Dennis Grlf tri, Ph,D., RPA SHPO Archaeologiat (503) 886-0674 (503) 888-0783, fax dennis,griffin0stete.or. us L.J . TOTRL P.Q4 aL- tu.n2 [ Rtsou.rces 1~epa rtKA.61A t • Phov~'e: 542) 55S-2000 F-aX: s4z) ss3-~sg April 21, 2005 Pat Kliewer Associate Planner Deschutes County Historical Landmarks Commission 117 NW Lafayette Bend, Oregon 97701 RE: Comment on Plan Amendment and Zone Change for 365 AC from exclusive Farm Use to Surface Mining Dear Ms. Kliewer: Thank you for the opportunity to comment on the proposed plan amendment and zone change submitted by 4-R Equipment, LLC. Upon review of information provided by Deschutes County Historical Landmark Commission, which includes comments from Dennis Griffin, State Historic Preservation Office (SHPO) Archaeologist, and the Staff Report completed by the Deschutes County Planning Division, it is the Confederated Tribes of the Warms Springs Reservation of Oregon's (CTWSRO) recommendation that, prior to passing and implementation of the proposed plan amendment and zone change, an oral historical study and archaeological inventory be completed. In clarification, we would like to emphasize that the CTWSRO, pursuant to Tribal Code Chapter • 490 Protection and Management of Archaeological, Historical and Cultural Resources (Tribal Ordinance 68), does have a commitment and interest in those properties that are prehistoric, as well as those considered historic, as these properties are fundamental to the recognition and understanding of lifeways, values and histories of the Tribes. The CTWSRO's position is that lands within Central Oregon, inclusive of Deschutes County, consist of ceded lands, as well as usual and accustomed, lands, and, therefore, resources within the those lands, whether prehistoric or historic, would be of interest to the Tribes based on Tribal Ordinance 68. In review of the Staff Report provided, several opportunities appear to have been provided to address cultural and archaeological resources within the review process. For example, under OAR 660-15-0000, State-wide planning Goals and Guidelines #5 (Natural Resources, Scenic and Historic Areas, and Open Spaces) (p.22), the finding by staff was that the goal had been specifically addressed in relation to criteria set forth in OAR 660-023 (ESEE Decision Process); however, when reviewing the section related to OAR 660-023 the only reference found for historic areas is listed as section 18.16.020 "K. Replacement dwelling to be used in conjunction with farm use listed on the National Register of Historic Places" (p. 16), and is addressed within the realm of potential conflicting uses. Within the Staff Report, the specific intent/definition behind OAR 660-15-0000 State-Wide planning Goals and Guidelines #5 is not clarified. National Register Bulletin Nos. 15 (How to Apply the National Register Criteria for Evaluation) and 38 (Traditional Cultural Properties) view Historic areas or properties as districts, sites, buildings, structures, and objects significant in our prehistory and history. These properties represent the major patterns of our shared local, State, and national experience, all of which may be considered under the National Register of Historic Places (NPS 1990). The views of the CTWSRO parallel those put forth in the National Register Bulletins. Specifically within the category of what constitutes a site under the National Register Bulletin No. 15; a "site is the location of a • significant event, a prehistoric or historic occupation or activity where the location itself possesses historic, cultural, or archaeological value regardless of the value of any existing Pat Kliewer Comment on Plan Amendment and Zone Change for 365 AC from exclusive Farm Use to Surface Mining. Pg.2 • structure." (pg. 5). Also, traditional cultural property is a possibility due to the statements of a Private Citizen tribal member and thus, must be considered in the broader scheme of the project. Given CTWSRO knowledge of guidelines set forth within the National Register Bulletins, the vagueness of the intent/definition behind OAR 660-15-0000, and the apparent lack of information that the Deschutes County Planning Commission appears to have with regards to cultural resources in the plan amendment and zone change area, the CTWSRO believes that this portion of the review process has not been adequately addressed. Also under OAR 660-023 is a potential conflicting use consideration listed as section 18.16.025 "C. Churches and cemeteries in conjunction with churches that are not within 3 miles of an acknowledged UGB" (p. 17). The CTWSRO understands that the intent of the consideration was to address those churches, and associated cemeteries, from a more contemporary or current usage time frame; however, concern has been raised by a Private Citizen tribal member with regards to religious traditional and ongoing use of the area and the possible presence of tribal affiliated burials within the vicinity of the proposed plan amendment and zone change. The SHPO verified the presence of a known archaeological site adjacent to the proposed plan amendment and zone change area, which does include burials. Based on the statements made by the Private Citizen and SHPO's documentation, the CTWSRO strongly recommends that an oral historical study and a cultural resources inventory take place on the property so that such sites may be evaluated under section 18.16.025 C and under 18.16.020 K. Federal and state laws afford protection to known sites on public or private land. The CTWSRO recommendation takes into consideration the possibility that this multifaceted site may extend onto the private property in question. • Finally, under Chapter 18.18.136 of Title 18, Amendments (p. 24) k. (p.26) it states that "SM zoning shall be prohibited in critical and sensitive resource areas (such as fish and wildlife habitats, wetlands and riparian areas, recreation and open space areas, and archaeological and historic sites) when such areas and resources have been evaluated in light of all comprehensive plan goals and policies..." The CTWSRO does not believe that such archaeological and historic sites have been evaluated to any acceptable degree by the Deschutes County Planning Commission and would like to see this portion of their Staff Report revisited with consideration given to performing an oral historical study and cultural resources inventory. Once again, thank you for requesting comments from this department, and if you have any further questions or concerns regarding our recommendation, please contact our office at 541) 553-2006, or via e-mail at sbird@wstribes.org Sincerely, Sally Bird Cultural Resources Program Manager cc: Robert A. Brunoe, NR General Manager / THPO Charles Calica, CTWSRO S/T • • • r~ ~J Apr 20 2005 2:10PH April 4-10-05 Pat Kliewer Klamath Tribe3 541-703-2095 p,2 The Klamath Tribes Culture & Heritage Department P.O. Box 436 Chiloquin, OR 97624 Telephcne (541) 783-2219 Fax (541; 783-2772 1-800-524-9787 The area that you and I have discussed on the Dry River and the associated areas around Horse Ridge have been sacred to the Northern Paiute since the beginning of time for all aspects of aboriginal life from birth to death. There are places where we went to pray and be with our ancestors as well as places to rest for all eternity in the forms of burial grounds. This is evident by the presents of literally hundreds of graves scattered through out the whole area. If the construction of this quarry- and rock crushing operation was to take place it would destroy an area that demands quiet for the tribal members that still go to the area today for worship of our ancestors and to converse with the life giver and creator of us all. This area is one of very few left that has such special meaning to us as a connection to our past, present and future. It would be a tragedy to loose another sacred area to the so called progress of America. Klamath Tribes al Resource Protection Specialist Perry Cho oo-~ t` • April 15, 2005 This Is for the public record that I am unable to attend, due to travel status. But, I want my concerns to be known and addressed. 1 am speaking about the proposed gravel pit to be located near/close to the rock paintings in the canyon below Horse Ridge. I am a member of the !Northern Paiute people, the Bums Poluto Tilbe in Bums, Oregon. My Palute people lived In this area for wail over 11,000 years ago and have left their marks on this land. I am an Elder now, but my first experience at visiting the rock art was before I went to school, my parents (Paul and Bernice Teeman) took my slater and brother there to see the works of our ancient people. They explained to us, that It was a sacred site and not to be disturbed. This was in the early 1950's, before there were any homes built dose by and we walked from hwy 20. , Over the years, we would stop and go visit the site and It was still undisturbed. As I got older, I appreciated the area and tried to figure out the story that was left by the old ones. There was a special connection I had to that site and when ever we visited there, we did not see any other people, but see tracks In the area. When I got married and had my own two children, l took them to the site and explained to them the spiritual significance of the area to them, much like ourparents had in the f950's, This was before the fence went up. The lawt time we went there, it was disturbed. Someone had tried to pry some of the painting off the rock face and them was a fire built and beer cans. That was very disturbing to me. • When the fence was constructed and we could not go across anymore, I hoped that this was a deterrent to the area, but in talking to other people who had been there and seen the destruction to the site, that was the reasoning for the fence, to keep looters and artifacts hunters out. That helped to ease my spirit a little, but I knew once artifact hunters knew of the area, more of it would be lost. I am very concerned about this site, although it may be across the road and out of sight, I believe that as more and more come into the area and have access to this canyon, our people's writing will be erased off the land. This is a sacred area and we should do all we can to protect It from damage. This Is one of the treasures of the area and I feel that one day, someone will come In on ell terrain vehicles and cart the rocks art away. I believe that the disturbance created by the gravel pit will further damage the area, by noise and dust, a person cannot go there and visit the area in peace anymore. Please move the gravel site further away from the area and help preserve a piece of our heritage, so much as been taken away already. Thank you, Minerva Teeman Soucie Burns Paiute Tribal Elder 0 S i t=w D D a 0 v a z O 0 ® °1 v M ~m ON C' S Ow- Pr G~ A fy9 O y Py 'n.=' wrD51 n ''7 lp .=pG R''+ 0N0 r~ ~ O H ~ ~ ~ y ~ ~ ro ~ A ~ ~ G° y ~ rr' ~ b pn ~3 G w~ G O w t1 w p I. j] c g- A w wv ] N O_ .'7 n f, y G P' n o n"" p Oa ::r F, rL a r, O o ~~r G C Q. a w 'w". ~rp"u io w~o, o ~P ~ w Lam' w rv p 0 0 n a°- r"D o C O ~~r G H O F'~ v, O O ti n fD H (D ~p r a C/ .a (D C p ~T G~ T ~ypQ f1 rY CL 0 • r"D n p w p w n ru cc O r-~ p" y p w A O N, C'~ .0, n, w 7 O p O fD ' y~y- n p . pTa H' O (n R (n n 'o o < Boa ~,rS A w ]rt, o ¢b y.~~ o v-o o a p H 0, C) ~]-~a ~ Z-t~ y~~d G ~o o P•°,~ oE3 C , O R. p y p a" A tr.~ o-C f~~u w. h nT ~w w 0 A n G, H 'a 'wv a E w O vC'. E)- 9 o o z o y CL CL y< p n ~d s:L t7 ro y w tlQ H n e w" p- p' w Ei. -3' p G o . G. C • `C °n G • N p' y V ± a. G- y ° ct4 y n O c~ n y 7 . 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E I ~i Page 1 of 1 Paul Blikstad ronn: Holly [hollophil@bendcable.com] Sent:: Sunday, February 20, 2005 4:38 PM To: Paul Blikstad Subject: Millican Valley Paul, The idea of having a surface land mine operation in this sensitive area, near the Observatory and the archeological sites, as stated by the owner "to provide a needed resource to the construction of roads and infrastructure" is not all for the benefit ofthe community. They will no doubt profit well from having this operation near highway 20. My personal experience of living near the Robinson surface land mine within the City of Bend near the Bulletin, Mt. Washington Drive and 14th Street gives me a true picture ofthe problem that the dust alone would create. The problem is greater than the Robinson's would lead you to believe. Repeatedly observing the cloud dust on those windy days we experience in Bend, the Robinson's don't seam to be to concerned with giving the City air quality that cannot be too good for the weak respiratory systems of asthma sufferers nor for the heating and cooling equipment ofthe commercial buildings in this area. If Y did they would be following "Dust Control" guidelines discussed back in the early to mid 901's ®rtbisarea. (What ever happened to that issue?) Before writing your reco mmendatlon to the County Commissioners I would urge you to observe first hand the problem created by the dust of a surface land mine. if you would like I have front row seats overlooking the old demolition land fill site, or go to the top of Overturf Butte, or better yet go the east of the mine on 14th street near the new Safeway where you may want to bring your dust mask and airtight goggles to breathe and see. If you don't have time to witness first hand the dust cloud, attached are two photos taken over the last few months that will give you a clear, or clouded, picture of surface land mining. Surface landing mining has its place, but not where it will adversely affect others as it has done in the Bend area for years. Unfortunately everyone looks the other way when it's about creating income for the already wealthy people who have influence in the "good old boy" system. I hope you have it in your genes to stand up and let the facts be known and not succumb to the pressures and influence of the minority. Phil Doza 0 2/22/2005 DESElk v • • . , x ~,irrw ` 5d " Ff} t,1. r~• . ki L yY r • • -o 'N .c o w .o cu v .C C as o o 3 cts o r 'b cd bb'D O Id a W a ^O y O cOd c 1, w') 3 'o o a m U o E o °a w. x N _ 'v E ~ -o z: cd R1 U w N U U U O "-z v^ •N E m ^0 p ty/~ h b0 U 4r by O ' U b U ti N O .~G a i bA U h U 4-+ a-+ U cd S4 w OU w y U U r+'i U ~ 15 n a .O MI, ~ 14, U i. 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' 1-If P ,771 +xt W ~~YJ ~ 4 4~h O [~f fq~. lm~ fra •,r t'n; u!'l ,y, yeti u a _ U d1 ] + fj j _ is Jf7{*y rx4,y ti~.~y1.'ary£} •-/i '~Llle If - ~f7] ^1{75~R/4~ ~~{f jfyf~"' I~~, { `I4 •I ,fb ux'9^'' h.~ C w. I ^ O> N > c v a +J o w° 3>„ G ° 3 oa s .o o° x G o E -0 cz C) y y G O C L V G Q) L L3 f0 . G E Q O 3 G Z o o o o m° o o o w 7Z Q) E -C «i s-. cV w O O 0) L v= N N o d ll, O w -E o c Q o° w at `n c o o° a o v° C~1 O Qi n G O N N O G _ N u i Q U LS c` ° o o C d N cd a 4i h ° O N 0 G 80. C V C X cd i y ^p .J N » ^ O O O O h O° -C N > y o G L cd O > 14 _ -a -0 3 o ~ N o o °i w o = cz -0 w > o a; 0 b oG a~ d m o o o N L o ° a~ b0 < M W o o a U o c L m o o m c E ° v N r a° .c 3 s o 3 a~ t'° C'j p o y G o O G bD 3 O O O °i N "O p F G w0 G r c0 -E C1 > O 0, 0 Q N G 'O O` en d y cz °O Q. 'D C 7 E i G - L O a) cz a Q) LL N O N N > O n U U tG i +0 :^J ccz F J b0 ~ ~ U ° ~ O N ~ ~ O ~ ~ N ~ of ~ ~ • U ~ C/] w ~ ~ ~ > a o> a~ o ° L s o a N o o E o ai a~ c G o co > 3 O L m a~ o = • o o ca a~ cGa nn o ° E C c Y Q O s N G acli > G G 'O 'O aGi •G CL y 'O y d cD Ci, N d O M O > Q E E W e Q. U 10 " 3 3 cr ! z i c 2 O Opponents say basalt mine may ruin pictographs Hearing tonight on proposed project By Chris Barker The Bulletin An image - painted on a rock wall off a lonesome stretch of Highway 20 east of Bend - depicts a comet striking the Ore- gon desert thousands of years ago, some say. "In Paiute history, it killed a lot of peo- ple and animals," said Wilson Wewa, Pete Erickson / The Bulletin Clay Walker, who owns property across Highway 20 from a proposed basalt mine, stands near some of the numerous Native American pictographs located on who has visited the site to pray since he was a boy. "That pictograph was a repre- sentation of that event." Pictographs - ancient, Native Ameri- can rock paintings - and other potential archaeological sites now face a modern threat, opponents of a basalt mine pro- posed for the Millican Valley say. See Mines /A8 Mitigating the Effects of Gravel Mining upon Rural New Mexico and Alternative Materia... Page 1 of 22 Mitigating the Effects of Gravel Mining upon Rural New Mexico and Alternative Materials in Road Construction Y ,~1 ~2^ yp.i i~'F° G S,+r ea this • 'w',`.~~'yl.. ~ ..:tr'~ M s Y . 4 r a Produced by the Rural Conservation Alliance with a grant from the McCune Charitable Foundation Joanne McEntire, M.S., Steven Blodgett, M.S June 2004 • Contents http://www.raintreecounty.com/Recycle.html 8/11/2005 mitiganng the t;rrects or uravel mining upon Rural New Mexico and Alternative Materia... Page 2 of 22 . Preface: Dust, Diesel, Decibels and Danger Introduction Aggregate and Stone Mining in New Mexico State Regulations and Review Air Quality Water Use Effects on _Rural Communities Land Use. Protections: County Planning and Review Processes Mines: Recommendations Alternatives: Usage of Domestic Waste Materials for Highway Construction Materials Glass Material and Uses in Road Construction Plastic Materials and Uses in Road Construction Recovering Glass and Plastics in New Mexico Benefits of Recycling and Reuse Progr__arn-Development with the Public and Private Sectors Partnership and Collaboration Recommendations: Alternative Materials Contributors / References [including two reports developed for the RCA that provided much of the material for this paper] PREFACE Dust, Diesel, Decibels and Danger In the mid-1990s a small gravel sifting operation, located a mile north of the village of Cerrillos NM, was partnered by a much larger gravel operator and renamed Cerrillos Gravel Products. A rock crusher was brought in and soon hundreds of 18 wheel trucks were hauling gravel through the narrow roads of the village. This heavy industrial traffic completely overwhelmed the peace and quiet of village life, http://www.raintreecounty.com/Recycle.html 8/11/2005 Mitigating the Ettects of Gravel Mining upon Rural New Mexico and Alternative Materia... Page 3 of 22 • changing its character overnight from rural to industrial. Dust, diesel, decibels and danger were the "four D's" that dominated what was once a rural village that hoped to attract tourists traveling the nearby National Scenic Byway, the Turquoise Trail. The roar, jake brakes, and the overwhelming number of speeding heavy trucks traveling back and forth also negatively impacted the Turquoise Trail and the • residents living along it. One such resident counted 250 trucks passing in one day. When traveling the road during operating hours it was the norm to find three trucks in front, three trucks behind and one truck passing from the other direction every few minutes. This was too much traffic for the three jobs the mine offered the community. No longer were scenic views possible while riding behind such large vehicles. Many windshields were broken from crushed rock blowing off the trucks, and drivers had to breathe diesel fumes the whole time they were driving the once residential rural highway. Columns of dust exuded from the gravel pit and could be seen for miles around. Residents located downwind from the pit experienced noise, dust, and diesel fumes inside their homes on a daily basis. Residents in nearby Galisteo found large cracks appearing in their historic homes, and had the same problem with noise, dust, and diesel when trucks from the same operation passed through their village. When citizens petitioned their county commissioners for relief from this poorly sited operation, they found that the county was conflicted by the need for construction materials, but the commissioners did place stipulations on the operation. Not all of these were enforceable and thus the rural residents affected by this heavy industry felt little relief. • In 2000, county commissioners suspended the operation because it was discovered through citizen effort that the operator did not have the water rights required for such an operation, and they had also over-mined the three-acre mine http://www.raintreecounty.com/Recycle.html 8/11/2005 mitigaung me hirects or tiravel Mining Upon Rural New Mexico and Alternative Materia... Page 4 of 22 zone by at least ten acres. . Mining companies were meanwhile targeting other major landmarks in the same areas. Citizens found themselves repeatedly having to give thousands of hours of time and equivalent amounts of money to fight off these poorly sited proposals. This involved convincing elected and appointed officials that there are other nourishing values that communities and the state must protect. While recognizing the need for construction materials, citizens insist that alternatives be sought before we mine away our landscapes so highly valued by New Mexicans and tourists alike. Why not then use the constant river of recyclable materials and at the same time save valuable space at landfills and our invaluable landscape? Ann Murray, Los Cerrillos, NM, June 2004 Introduction This report describes aggregate and stone mining in New Mexico, identifies environmental and community effects, and examines the usage of recycled alternative materials in road construction. . Highways and roads demand enormous amounts of aggregate and stone materials for their construction. Gravel and other minerals for road construction are mined from riverbeds and hillsides to serve the highway construction and building construction industries, leaving mines un-reclaimed. Local residents and entire communities feel the affects of industrial traffic and noise, which cause true public nuisances. Environmental degradation accompanies mining operations and remains after they cease, with air pollution, scars on the landscape, and threatened surface waters and groundwater. Numerous engineers, scientists, and business people have observed and demonstrated that recyclable glass and plastics can be utilized in vast quantities as alternative materials used for highway construction. Highway construction projects utilize natural rock materials: aggregate, crushed rock, base course, sand and gravel. Glass and plastics can substitute for these materials in the surface of paved roads (where asphalt mixes or cement mixes form a hardened surface) and in base courses, where aggregate materials are used. Such alternative materials protect the environment by conserving natural resources, including the lands for mining and landfills. Benefits also include economic development opportunities and reduced pollution hazards, thus protecting human health. Yet only a small percentage of the waste material generated in New Mexico is recycled and made • available for reuse. Why? This report attempts to answer the question and suggest realistic alternatives. http://www.raintreecounty.pom/Recycle.html 8/11/2005 • The S Gallery TraffivrelLady Magazine ,M The World's Longest-and Oldest-Art Gallery By Craig Lancto • Prehistory meets geology close to the surface in Utah, with a seemingly endless supply of dinosaur tracks and bones, some reconstructed in museums, others still visible in situ, the geological layers in which they are found revealing their age. In a different way, the millennia-long presence of native peoples reveals itself in the pictographs and petroglyphs throughout the state. In 2004, a Utah rancher named Waldo Wilcox revealed that his family had known about a 12- mile string of well-preserved prehistoric villages on their property along Range Creek in the Book Cliffs, for fifty years. Among the sites, about 130 miles from Salt Lake City, are hundreds of panels of rock art, granaries, dwellings, mummified remains, and arrowheads left by the prehistoric Fremonts who occupied the lands for thousands of years before the Common Era. Although Mr. Wilcox has sold the land to the government, most of the public will not have access for some time for fear of the looting and vandalism that have affected other sites, although none as rich in artifacts as these. 11 One of the best places to enjoy a sense of the long history of American Indians is the San Rafael Swell near Price, Utah. The San Rafael Swell is a rugged patch of high desert with e IL striking views of natural formations, canyons, and cliffs, a small but impressive version of the Grand Canyon, and the giant rock- art billboard of Buckhorn Wash, which has long been under siege by vandals. The life-size pictographs, or painted figures, of the Barrier Canyon people have been refurbished after years of thoughtlessness had pocked them with gunshot and marred them with graffiti. Despite more than 2,000 years of exposure, these paintings-many more than http://www.travellady.com/Issues/JanuaryO5/ 1142 W orldsLongest.htm 7 1 of 3 Ads by Goooo, Rock Art Ia Re-creation! Prehistoric F Art of the Southweste rockartimages.c Native Ame Rock Art Carved in st from photos prehistoric ii petroglyphs www.sandcam The Museu Store Comp - The Artifac Historic Hon Decor, Ancit & Jewelry www.museums Roman,_Grl Egyptian Genuine ant and antiquiti Secure orde global post. www.heliosgalk 7/28/2005 The World's Longest and Oldest-Art Gallery Page 2 of 3 six feet high-continue to attract attention. Because they are more distinct in shadow than in direct sunlight, this picture gives • an idea of size, although the images are somewhat washed out by the sun. The purpose of the rock art is not clear. One theory holds that the figures represent shamans, or holy men; others think that they - might contain a record of historical events that f; were important to these ancient peoples. .a Many of the Buckhorn Wash pictographs are elongated and ethereal. Some of them appear `A"` ^ to be holding snakes or ropes. Less direct lighting helps these images to stand out more clearly. In addition to pictographs, Buckhorn Wash has some petroglyphs, images that are pecked or etched into the rock with a sharp instrument. along its length, which is actually closer to forty miles. About thirty miles from Price, Nine Mile Canyon, often called "the world's longest art gallery," offers the largest concentration of ancient rock art in the United States Ln< r w9 ' Although they are M- smaller, "petroglyphs and pictographs abound at Nine- Mile Canyon. Built by Buffalo Soldiers from nearby Fort Duchesne, a dirt road runs close LOW to the rock art, making it readily accessible. So much so that one of the oil companies exploring the area is helping to build a new road farther from the images. The thousands of petroglyphs and pictographs in Nine Mile Canyon represent peoples over thousands of years, from the prehistoric Fremont, to the later Anastazi, and modern Utes, from whom the state's name derives. Nine Mile Canyon is a remote area with few amenities. However, nearby oil and gas reserves-and trucks racing along the narrow, curving dirt road, an increase in tourists and vandals, and seismic activity caused by vibrating equipment used to locate petroleum pockets have combined to add this national treasure to the list of the 11 most endangered historic sites in the United States. Oil companies are working with the Bureau of Land Management to protect these http://www.travellady.com/Issues/JanuaryO5/1142 WorldsLongest.htm 7/28/2005 i nC w ona s Longest-ana ulaest-Art Uallery irreplaceable relics of our Native American heritage. Although the rock art is the • main attraction of both of the above sites., they also offer other evidence of ancient life, including granaries high in the rock cliffs, earth homes, and pottery shards. Anyone visiting Buckhorn Wash would do well to call Emery County Sheriff, LaMar Guymon to arranga for a knowledgeable guide through the area. Back to TravelLady Magazine Send this page to a friend. Copyright 1995-2005 TravelLady Magazine • U Page 3 of 3 http://www.travellady.com/Issues/JanuaryO5/1142WorldsLongest.htm 7/28/2005 mail2web.com - Pick Up Your Email • If you are looking at this ad frorr` tammiew@mtaonline.net English Go Reply - Reply All - Forward - View Source - Previous - Next - Message: 1 / 1 From: Clay Walker <clayw@pobox.mtaonline.net> To: Tammie <tammiew@mtaonline.net> Subject: didnt know if you had this Date: Fri, 15 Apr 2005 07:19:31 -0800 View as text RNRSP- Page 1 of 5 • Search Back to Latest News Dust complaints stir opposition to mine Logi 29/03/2005 User CONCRETE ASPHALT When the wind blows in Bend, particularly in the summer dust Pass) Latest Articles , and noise complaints concerning a handful of mines operating Forum Messages in urban areas start coming in to state and county offices. r RE I.T./Software details QC/QA So when 4-R Equipment submitted an application to mine F1 AGGREGATE basalt near Millican - 20 miles east of Bend - few in the "pa: I.T. & SOFTWARE booming excavation business expressed surprise at the New: Q.C./Q.A proposed location. EDUCATION NEWS ROOM The resources are really difficult to get permitted," said Matt Sun Rec y MARKET Day, owner of Hooker Creek Companies. "The homeowners ' Inforr don t want us - where are we supposed to go?" RESEARCH Q&A FORUM Four-R, which is affiliated with Bend-based Jack Robinson & Woul( FREE Sons, is seeking a permit to operate a 385-acre basalt mine see n inforn R `~SO1"~ 1°CE:S the south side of Highway 20 west of Millican. County const • FINANCE officials are currently considering Robinson's application, a mates RESEARCH proposal to mine and crush 17 million cubic yards of rock to on thi LIBRARY fuel Bends booming construction industry. littp://www.mail2web.com/egi-bin/read.asp 4/1 5/2005 mail2web.com - Pick Up Your Email Page 2 of 5 • CONFERENCES Neighboring landowners - Pine Mountain Observatory, ABOUT US worried that dust could obstruct the view, and an American F-MV Indian concerned about the mine's impact on cultural artifacts RSS Feed in the area - have weighed in against the proposal. suffic It's a time-honored debate in growing Deschutes County, Tc Aggregate News where officials are attempting to balance the economic pt 4 James Hardie benefits of having nearby sources of rock and gravel with the Special Purpose concerns of homeowners beset by dust, noise and traffic Fund to Cover congestion. BBary it Compensation w Currently, there are 168 mines permitted in Deschutes County, Claims according to the Oregon Department of Geology and Mineral NRL introduces Industries (DOGAMI). new asphalt technology But only 45 of the permits are considered "active," according Oglebay Norton to Ben Mundy, of the state agency. The majority of the mines produce aggregate, or sand, gravel and rock products and Resale , pumice. Registration Statement Mines are regulated by DOGAMI, the state Department of Becomes Environmental Quality and Deschutes County. Effective • ; Luck Stone DOGAMI has received 16 complaints from Deschutes County checks homes residents since 1991, according to Mundy. near quarry Lafarge Hanson DEQ, which regulates air pollution in Deschutes County Purchase Seen , hasn't received any formal complaints regarding aggregate Unlikely mining since Jan. 1, 1999, according to DEQ records. That doesn't mean people aren't calling, said Peter Brewer of the DEQ's Bend office. He estimates that formal, written complaints represent less than half of calls received by his office, which covers an 18-county regional spanning all of Eastern Oregon. "It doesn't mean they're ignored, there's just no paper trail," Brewer said. "Often we deal with it by running right out." DEQ has fielded calls about fumes or dust coming from the so-called Coats pit off Shevlin Park Road, which is operated by Shevlin Sand and Gravel, as well as a pit run by Hap Taylor & Sons in Tumalo, Brewer said. As homes grow up around mines in Deschutes County, operators often change their procedures to accommodate the changing neighborhood, he added. "What we tend to see is those kinds of sites slowly closing out http://www.mail2web.com/cgi-bin/read. asp mail2web.com - Pick Up Your Email Page 3 of 5 or changing their operations to conform with what's going on locally," Brewer said. For instance, some miners have stopped digging and used the area for storage, instead, Brewer said. . DEQ has fined a handful of Deschutes County excavators that are permitted to operate mining and asphalt manufacturing equipment, according to state records. Hooker Creek Companies was fined $3,600 in 2004 for discharging water used to wash trucks at the company's Old Mill facility without a permit, according to DEQ records. The company later installed more than $100,000 worth of water recycling equipment to ensure the violation didn't happen again, DEQ reports. As a result, the original $3,600 fine was reduced to $720. Hap Taylor & Sons were fined $6,330 in 2004, also for discharging wastewater without a permit, DEQ records show. The fine also included a violation of failing to clean up an oily discharge from a piece of equipment at a company facility located at 64543 Highway 20 West, the records show. • The fine was later reduced to $1,266 after Hap Taylor submitted,a plan to install concrete pads, reducing the threat of discharge reaching the ground, according to DEQ documents. DEQ fined 4-R Equipment, the Bend-based company seeking a permit to mine near Millican, on two occasions. The company was fined $1,509 in 2000 for operating a portable rock crusher without an Air Contaminant Discharge Permit from February 1999 to Jan. 8, 2000, according to DEQ records. In addition, 4-R was fined $3,600 this year for storing oil in containers without a cover at its heavy equipment maintenance shop at 63055 O.B. Riley Road, DEQ documents show. Deschutes County's code enforcement division has handled several complaints about people and businesses conducting surface mining without a permit, according to county records. • For the most part, existing mining operations aren't the subject of complaints, said Lori Furlong, code enforcement officer. "We just don't get a lot of calls on that," Furlong said. htti)://www.mail2web.coiTi/cgi-bin/read.asp 4/15/2005 mail2web.com - Pick Up Your Email Page 4 of 5 • Neighborhood residents sometimes call the county about the Coats mine on Bend's west side, said Tom Anderson, director of the department. "It's not that that mine is more out of compliance than any other, it's just that they're in a popular area," Anderson said. Representatives from Shevlin Sand and Gravel, which operates the mine, couldn't be reached for comment. Karen Marcotte, who lives on Rickard Road in East Bend, said she's given up calling county officials or DEQ about a nearby dirt mining operation run by Bend Land & Cattle Co. "Nobody enforces anything," Marcotte said. Dust from the mining operation, particularly on windy days, can be a problem, Marcotte said. Chris Teicheira, who has lived in the same area since 1991, agrees. She said the pit doesn't close down during high winds, a stipulation included in a county permit to operate the mine. "They still operate during windy conditions, there's some times when you can't see across Rickard Road," Teicheira said. Bud Rose, one of the owners of Bend Land & Cattle Co., said he's worked to address neighborhood concerns. He said he sprays the area using a 4,500-gallon water truck. It's impossible to stop dirt from blowing in the area on windy days, Rose said. "There are only so many things you can do," Rose said. "It's a little different than closing the front door and running the vacuum cleaner." The dust blowing out of gravel pits in the Bend area can be a nuisance but it's not particularly dangerous, said Gregory McClarren, a member of the nonprofit Bend Clean Air Committee. Mining dust is mostly coarse, which is less dangerous than fine particles which can lodge in the lungs, he said. • The committee has worked to inform residents concerned about gravel mining in their neighborhoods, McClaren said. "My sense is they all try to be pretty decent neighbors," litti)://www.mail2web.com/cgi-bin/read-asn mail2web.com - Pick Up Your Email . McClarren said, of the county rock mines. "If there was one thing that could make life better for everybody it would be if everybody in the development community paid attention to dust abatement." Page 5 of 5 ARI All contents copyright ©2005 ARI, All rights reserved. Privacy Statement Terms of Use Contact the Webmaster Advertising Programs About mail2web.corn Privacy Policy News Helsa ©2005 SoftCom Technology Consulting Inc. • L__J litti)://www.mail2web.com/cizi-bin/read.asi) 4/15/2005 Cascade Business News 0 I Business & Industry Proposed Gravel Pit Faces Hurdles by JEFF MCDONALD CBN Feature Writer A proposed zoning change for a basalt-rock quarry located adjacent to Highway 20 below the Horse Ridge Grade, 20 miles east of Bend, faces opposition from some of the parties who might be affected by the quarry. 4-R Equipment LLC of Bend, new owners of 385-acre parcel of land in the Millican Valley, submitted an application to change the zoning on the land from the exclusive farm use to allow surface mining on the site. The land sits adjacent to the Pine Mountain Observatory to the east, scattered residential homesteads, wildlife habitats and Native American archaeological sites. There's no doubt that beneath the 385-acres of land recently purchased by with 4-R Equipment of Bend LLC (part of Jack Robinson & Sons Inc.) there exists approximately 17 million cubic yards of high quality, basalt rock. According to managing member of the company, Ron Robinson, the supply would provide his company with enough road construction paving materials to last 50 years. Jack Robinson & Sons is a three generation family owned business that was established in Central Oregon in 1947. Although Robinson said prices and demand for rock are subject to • change, the current estimated gross value of the rock over the course of the project amounts to about $40 million. Robinson noted that the region's enormous growth forced his company to think long-term about a stable rock source. "We may be okay for five to seven years, but how about ten to fifteen?" he asked. Robinson also cited new road requirements made by the city, county and state that increased the amount of back-fill needed in a trench from four to six inches up to eight to ten inches. He said, "we're making. better roads that last longer," and added this as a reason for needing good, hard crushed rock. In order to get a zone change for this property, the county's development code would require amending the comprehensive plan to put the land on the county's inventory of mineral and aggregate rock sites. According to Paul Blikstad, Deschutes County land use planner, "the key to the application is to balance mining without adversely impacting the other resources in the area." Opposition Cited Just to the east of the proposed gravel site sits the 6,300-foot Pine Mountain, one of the most popular hang-gliding spots in the world and the University of Oregon's Pine Mountain Observatory, a scientific research and public viewing facility. Mark Dunaway, facilities manager for the observatory, explained how hang-gliders choose this spot for jumping off because of the Page 1 of 6 httn://www.cascadebusnews.com/BusNews.html 3/6/2005 Cascade Business News intense 30-50mph uplifting winds that rise from the base of the • valley. "Any dust created from the gravel pit-is going to come up the mountain like a funnel," he said. The dust, according to Dunaway, also reflects light resulting in a decreasing ability to study incoming starlight and measure reflective light atop the mountain. The observatory was formed in 1967 as an outreach center to study the night sky. "With Bend encroaching, wildfires and dust, the added light could threaten our existence, and I'm going to fight this project tooth and nail," Dunaway said. Nearby residents Clay and Tammie Walker live on the adjacent site located just north of Highway 20 about a quarter mile from the proposed gravel pit. "You can hear your neighbors' dogs barking five or six miles away," Clay said. They enjoy the peace and quiet of the valley and fear the impact of a rock crusher upon the amount of dust, noise and aesthetics in the Valley. "It would destroy the valley," he predicted. As you walk around the sagebrush on the Walkers' property, you'll likely find scattered pieces of obsidian rock, used for tools and weapons for centuries by the Northern Paiute Indian tribes. On rock walls about 3,000 feet from the proposed site, there exist sacred Native American pictographs drawn up to 22,000 years ago, when locals believe that a massive comet crashed upon the landscape. lay expressed concern that the heavy blasting that would occur in the quarry would possibly damage the pre-historic artifacts. "Imagine what would happen if we allowed heavy blasting in the area. These pre-historic artifacts may not survive," Walker cautioned. A letter dated February 7 from the state's lead archaeologist, Dennis Griffin, determined the "presence of known archaeological sites in proximity to the proposed quarry area." Griffin recommended that they hire an archaeological consultant and perform a complete cultural resource survey of the area. For his part, Robinson indicated that he's in the process of interviewing archaeologists to perform the survey. He said, "We will change our site plan to avoid any damage to the cultural site-it's not: our goal to destroy anything with archaeological value." To reduce concerns about blasting in the area, Robinson said, "We're only going to blast once or twice a year for a period of two to three weeks each time." He further stated that the noise from the rock crusher would be insulated within the pit and walls on three sides. "Most of the noise will be directed to the east," he said. "I believe Robinson when he says that he'll do his best to minimize the impact on our lands, but what happens down the road when he's no longer the owner?" Clay Walker asked. "There are no guarantees for us then." • In response, Robinson said the company has created succession, plans that maintain the current ethos of his company. Paae 2 of 6 httr)://www.cascadebusnews.comBusNews.html 3/6/2005 Cascade Business News • Site Plan Under the proposed site plan, the first phase of the project would encompass about 30 acres and would last between 25 and 40 years. The project would dig 100-foot mines and push the sand and debris to the side, creating a berm around the perimeter. "We would dig shallow and tear up as little ground as possible," Robinson said. "Then we would recycle the soil and replant native sagebrush." Robinson indicated that the rock site would average 80-90 trips per day with a peak of 117 trucks per day that would travel along Highway 20 to deliver materials straight to individual projects. "That's an average number of heavy weeks balanced with some weeks where there's very little traffic at all," he said. Hours of operation would last from 7am-10pm. Land-Use Process On the county's development code, there are currently 116 sites that have been zoned for surface mining, said Kevin Harrison, Deschutes County principal planner. In order to become zoned for surface mining, he said, "we ask that property owners demonstrate the land's significant economic importance to the county." At the previous February 17 hearing, Pat Kliewer, an associate planner for Deschutes County Historic Landmarks Commission, along with several other witnesses, asked for a continuance to gather further written public testimony and determine the impact of the gravel pit upon the cultural sites and artifacts in the area. • Kliewer called upon the public to become involved in the land-use process. "The staff report includes only evidence that the applicant gave us the criteria that's been selected by land-use planners," she said. "It is absolutely critical that the public comes forward with any evidence that addresses the application." According to Kliewer, the burden of proof falls upon the applicants for demonstrating that a zone change would not conflict with the resources in the area. During the scheduled April 19 public hearing, special hearings officer Anne Corcoran-Briggs will employ the state's Goal Five land-use planning statute to weigh the value of aggregate materials on the site with conflicting uses along with wildlife, open space and possible historic resources on or near the site. Corcoran-Briggs will take the testimony and within four to six weeks have a written recommendation for the county's board of commissioners. They will hold further public hearings and make the final decision, which is subject to appeal to the Land Use Board of Appeals. Wal-Mart Super-Center Proposal Puts on Happy Face • by JEFF MCDONALD CBN Feature Writer Faced by opponents wearing stickers with their famous smile logo Paee 3 of 6 httD://www.cascadebusnews.com/BusNews.html 3/6/2005 • 1 r i F' ° 0 a o cc a a;QO' bjO U ? bA° O y,~ aQi O 23)p L7a~~:bq. A Cr. bb CZ Q 2 w S2 -V a) 0 • o o` n o x;000 s.~a~,Q cn- a, o a~ Y (U --l 'o 510 p y„-'O. U U b r 0 y tix o as ° u o ~un 'J7 • ~ bA ~ Q Q. ~ M ~ ~ v0 QAUtb-Ryy ~,y,;. fibC. iy v~ v. «J~d. C N Q I 4.;i i F AS Saturday, February 19, 2005 • THE BULLETIN ~ ®r EDITORIALS Stop the mine A local contractor, with the support of Deschutes County, is proposing to put in a 365-acre rock pit in the Millican Valley. This is a zone change from EFU (exclusive farm use), WA (wildlife range) and LM (landscape manage- ment) to surface mining. What does all this mean? This means that what has been used for grazing by the antelope and mule deer herds, sage grouse and many other species of wildlife will be gone. This rock pit will be on the corner of Spencer Wells road (aka the county 23 road) and Highway 20. The blasting will not only destroy the peace and qui- et of the Millican Valley, but will also damage the surrounding historic, acad- emic and archaeological sites. They are: the Dry River canyon, coyote well and the Pine Mountain Observatory. Changing the zoning from exclusive farm use to surface mining is not a re- sponsible action by Deschutes County. We cannot afford to lose these pieces of history and inhibit the only astronomy research facility in Oregon. These sites cannot be replaced or repaired once they are damaged or gone. Comments can be sent to Paul Blikstad at Paul_Blikstad@co.deschutes.or.us, or call him at 388-6554 for more informa- tion. Tammie Walker Millican Valley Page 1 of 1 Paul Blikstad From: Carol Macbeth [carol@friends.org] Sent: Thursday, December 16, 2004 9:51 AM To: Paul Blikstad Subject: PA 048 HI Paul, 1000 Friends would like to examine the Hearings Officers report for PA 048, 1 am not sure if it is available on line? If so, could you direct me to it? Otherwise I will come in and make a copy. Can you please notify me in writing of all decisions in this case. Thanks, Carol Caro! ..Macbeth Central Oregon Advocate 1000 Frienris gl'Oregon P.O. Box.1380 Bend, Oregon 9.7109 Phone: 541.382. ; 557 Fax: 541.31 ?.9129 F snail: caroZ@/riends. Qz:g Be a friend of Oregon: htWWwww friends. org/support 12/16/2004 Paul Blikstad From: Sent: To: Subject: Pat Kliewer Monday, January 31, 2005 8:33 AM Paul Blikstad FW: [Fwd: Re: response from Pat Kliewer] -----Original Message----- From: gray@bendcable.com [mailto:gray@bendcable.com] Sent: Saturday, January 29, 2005 7:57 AM To: Pat Kliewer; Wilson Wewa, Jr.; Stu Garrett Subject: [Fwd: Re: response from Pat Kliewer] Some additional information from Tammie to pass along (with her permission). > Tammie Walker wrote: Ron Robertson did come over to the house the other day. He put a 25 foot 2x4 up, with a flag on top of it, in the approximant area of the stock piles. It will be very visible from all areas and it sounds like the blasting etc will take place to start with along the river bed/canyon wall on that property. He did not respond to any questions we had about possible damage to the pictographs in our > canyon, the possible cave in of Coyote Well or damage to our personal > > well. He did say that they will be drilling a well for dust control and if need be could get water across the highway for us to use if needed. Nice gesture but not what I wanted to hear. He was feeling us out to see how far we were going to take this. He is a nice guy and my husband has known him for years, so I know he is trying to be sincere while also making money for himself. I'll let you know if anything else develops. Thanks, Tammie Original Message From: <gray@bendcable.com> To: "Wilson Wewa, Jr." <paiutewewa@yahoo.com>; "Stu Garrett" <garrett@bendcable.com>; "Tammie" <tammiew@starband.net> Sent: Friday, January 28, 2005 8:24 AM Subject: response from Pat Kliewer Good morning and plugging along: I heard from Pat this morning and she is asking Will Groves to help. He has a degree in anthropology and was hired by the county as a planner last summer. L_J 1 Paul Blikstad From: Sent: To: Subject: Paul Mark Darienzo [Mark.Darienzo@state.or.us] Tuesday, July 26, 2005 3:47 PM Paul Blikstad Re: FW: Plan Amendment/Zone Change for mining If the site is significant it must be placed on the county's list of significant sites even if it is not approved. The mineral and aggregate rules were interpreted correctly in your staff report. An impact area greater than 1500' is possible where "factual information indicates significant potential conflicts beyond this distance." It is critical that the information be solid. For example, in Jackson County, a very large impact area was established. The county rejected the application. The applicant appealed. DLCD did not think the large impact area was justified and remanded it back to the county. The remand was affirmed by LCDC and the Court of Appeals. If you have any other questions please let me know. Mark Natural Resources Specialist Department of Land Conservation and Development Phone 503-373-0050 ext. 269 Fax 503-378-5518 0ttp://www.oregon.gov/LCD/index.shtml "Paul Blikstad" <Paul_Blikstad@co.deschutes.or.us> 7/26/2005 12:00 PM Mark, Sorry about this, but this last email has my final draft of the memo. Paul -----Original Message----- From: Paul Blikstad Sent: Tuesday, July 26, 2005 11:56 AM To: 'mark.darienzo@state.or.us' Subject: FW: Plan Amendment/Zone Change for mining Mark, The one other significant question we have for you is if the resource is determined to be significant, does it HAVE to be put on our Goal 5 inventory, but may not be approved for mining? If that makes sense to you. -----Original Message----- From: Paul Blikstad Sent: Tuesday, July 26, 2005 11:53 AM To: 'mark.darienzo@state.or.us` Subject: Plan Amendment/Zone Change for mining • Mark., 1 i Oregon Natural Desert Association February 15, 2005 VIA EMAIL Paul Blikstad, Associate Planner Deschutes County Community Development Dept., Planning Division 117 NW Lafayette Ave. Bend, OR 97701 Re: File Numbers PA-04-8, ZC-04-6 Dear Mr. Blikstad: Please accept these comments from the Oregon Natural Desert Association (ONDA) regarding applications for a plan amendment and zone change in the Millican area (File Numbers PA-04-8, ZC-04-6). ONDA is a non-profit public interest organization whose mission is to protect, defend, and restore forever, the health of Oregon's native deserts. ONDA has a long history of interest and involvement in state and federal land use planning activities with respect to wilderness, grazing, riparian areas, water quality, and fish and wildlife. The members and staff of ONDA use and enjoy the public lands and natural resources on the public lands adjacent to the planning area for recreational, scientific, spiritual, educational, aesthetic, and other purposes. ONDA and its members also participate in information gathering and dissemination, education and public outreach, agency land use planning, and other activities relating to state and federal management and administration of the public lands of eastern Oregon. ONDA has reviewed the Burden of Proof Statement and Staff Report for the above- numbered applications. Based on that review, ONDA's primary concern with the proposal is the potential impacts this mining/gravel operation may have on the Proposed Badlands Wilderness Area on the immediately adjacent Bureau of Land Management (BLM) lands north of the parcels in question. Throughout the Staff Report, the staff indicates that there are no identified conflicts or approved land uses that might conflict with the proposed action, including no identified dust or noise sensitive uses. As the CDD may be aware, ONDA has been working in the community for a number of years now seeking to secure wilderness designation for the Badlands area immediately to the north of the application area, approximately twenty miles east of Bend. The Badlands are one of the most fascinating and rare geological sites in eastern Oregon. Canyons are carved in stony seclusion. Rock cauldrons, stirred from water and stone, hold precious desert water and a rare perspective on time. Visitors can discover pockets of soft sand, lichen-covered rocks, and 1,000 year-old ancient junipers. See www.onda.org/badlands/index.html (last modified Feb. 15, 2005) (ONDA's Badlands information page, including media coverage, maps, polling data, photos, articles, and other related information). As you know, the Deschutes County Commissioners currently are considering whether to formally endorse ONDA's proposal. The Bend City Council and more than a hundred local businesses have already endorsed and lent their support to the campaign to designate this place as wilderness. Should the County decide to endorse the proposal, this would represent one of the last significant steps toward obtaining recognition in Congress of this area's significant ecological, recreational and other special attributes. For this reason, ONDA is concerned about the potential impacts a surface mining operation and asphalt plant on this property adjacent to potential wilderness. In particular, ONDA believes the proposal has the potential to adversely impact wilderness values and users' wilderness experiences by causing visual disturbances-including line-of-sight impacts and impacts from dust-as well as noise impacts. This is in addition to concerns over potential impacts on the property itself, which include adverse impacts to antelope herds known to use the area (including the dry lake bottom and the Dry River), impacts to sage grouse and their habitat, impacts to the historic Coyote Well and nearby ancient pictographs, and impacts to potential archaeological and tribal resources of significance. Under the Oregon Administrative Rules, the County's surface mining impact area (SMIA) combining zone has been established at one-half mile. The Staff Report indicates that Staff believes the applicant's findings in the Burden of Proof Statement with respect to current uses in the area are correct. However, neither the Staff Report nor the Burden of Proof Statement considered the potential for wilderness designation on the adjacent BLM public land. ONDA requests that the CDD fully consider potential impacts to the adjacent wilderness resource and consider the full benefits and costs of this proposal vis-a-vis the value of this resource to the citizens of Bend, Deschutes County, and beyond, before recommending approval of the plan. At a minimum, ONDA requests that the CDD require the traffic impact assessment and hours of operation clarifications specified on page 28 of the Staff Report. ONDA also requests that the conceptual reclamation plan, as required under OAR 660-023-0180(8)(b), see Staff Report at 28, be detailed enough to insure that the area is one-hundred percent reclaimed when the mining operation has been completed, should it move forward. Thank you for the opportunity to participate in this land use planning process and for your careful consideration of ONDA's comments. If you have any questions regarding these comments, please feel free to contact me at the address below, or Bill Marlett at 541-330-2638. Sincerely, sl Peter M. Lacy Peter M. Lacy (Mac), Staff Attorney Oregon Natural Desert Association 917 SW Oak Street, Suite 408 Portland, OR 97205 503-525-0193 lacy@onda.org Cc: Bill Marlett, Executive Director Oregon Natural Desert Association ONDA Comments on Applications for Plan Amendment/ Zone Change, File Nos. PA-04-8, ZC-04-6 -2- Vo to rock mining mailbox:/C%7C/Program%20Files/Netscape/Na...Vid=421A3D4C.34B8@coinet.com&mtmber=3915 Subject: No to rock mining Date: Mon, 21 Feb 2005 11:58:04 -0800 From: Pinecone <pinecone@coinet.com> \ To: Paul Blikstad@co.deschutes.us Sir: I'd like to endorse and "second" everything said in the letter from Millican Valley resident J M Nash (appearing in today's Bulletin: My Nickel's Worth). Thank you. Patricia O'Day, 2200 NE Hwy 20, Bend. ;,?-00 1JE #4_~X )-C) 4~~ LID t eVA b2 g?701 1 of 1 02/25/2005 12:02 PM Planned Gravel Pit Page 1 of 1 Paul Blikstad From: Mark Hjort [mhjort@Q10nmco.com] Sent: Thursday, January 27, 2005 7:53 AM To: Paul Blikstad Subject: Planned Gravel Pit Dear Mr. Blikstad, I have recently heard about a planned gravel pit near Pine Mountain Observatory. As you know, Pine Mountain Observatory is a research grade facility that depends on the low light and good atmospheric "seeing" condition present at its location in order to perform its work. The approval and subsequent operation of a gravel pit nearby has the potential of destroying the very conditions which allow the observatory to effectively provide telescopic research of the night sky. The facility is operated by the University of Oregon and is open to the public as well. I strongly urge you to reconsider approvating a gravel mining operation in such proximity to the observatory. The dust and particulate matter raised by the mining and crushing of gravel would be carried by the prevailing winds up to the observatory, effectively blinding it for deep sky research. This is too important a facility (the only one in Oregon) to risk by the placement of a gravel pit nearby. I urge you to encourage the mining company to find a another location which will not have such negative impacts on Oregon's only astronomical research facility. • Mark R. Hjort Phone: (503) 294-3118 1/27/2005 Paul Blikstad From: Pat Kliewer nt: Thursday, February 10, 2005 8:58 AM R: Paul Blikstad Subject: FW: Millican, PA-04-8, ZC-04-6 Paul, Would you please respond to this request? Thanks! -----Original Message----- From: Mac Lacy (mailto:lacy@onda.org] Sent: Thursday, February 10, 2005 8:54 AM To: Pat Kliewer Subject: Millican, PA-04-8, ZC-04-6 Pat- Are you able to email or send me a copy of the applicant's Burden of Proof Statement for this proposal? (I don't need all of the other reports, photos, letters, etc. that were filed in support of the application.) My address is below. Thanks, Mac Bill Marlett wrote: > *From: *"Pat Kliewer" <Pat_Kliewer@co.deschutes.or.us> > *Date: *Tue Feb 8, 2005 1:40:19 PM US/Pacific > *To: *<bmarlett@onda.org> > *Subject: *Millican Here is the information that ONDA requested. > Attached are the staff report and public notice for the case that I was > recently asked to assist the county on. The hearings officer did not > show up at the hearing in January, so it was rescheduled for next week > Tuesday, Feb 15, at 6:30 p.m. at 1300 NW Wall Street. > The site is just past the top of Horse Ridge in the old Millican Lake > bottom. The site is on both sides of Highway 20 and Spencer Wells Road. > It is in Section 30 of T19 R 15 and in Section 25 of T19 R 14. It is > just below Pine Mountain Observatory. > It is a designated antelope habitat and landscape management area > and is > zoned Exclusive Farm Use. See the staff report for more information on > zoning. The applicants want to mine the deep basalt rock located just > under a shallow layer of silt and sand on the dry lake bottom. > On a site visit last Friday, an antelope herd was observed on site. On > Saturday, county planner Will Groves and I visited the site. During > that visit, the antelope herd was also there, drinking very icy > water in > a 48" wide pool on site in the Dry River. > The subject site is adjacent to and within a few hundred feet of the > historic Coyote Well (It is on the quad maps). The shallow well was > hand > dug about a hundred years ago and is lined with rock. It has never been > dry even though it is about 2b feet deep. The site is about a thousand feet south of three panels of Native American pictographs on the Clay Walker Ranch in the Dry River. The pictographs were recorded in Loring > and Loring's book, Pictographs and Petroglyphs of the Oregon Country > published by UCLA in in 1996. I photographed the water well and 1 > pictographs. > We photographed six quarter-sized obsidian flakes and a translucent > obsidian spear point on site on Saturday on a short casual walk into > the • > site. > The fine dark red clay pit that was likely used by the Native Americans > for face paint and pictographs is nearby to the west on Horse > Ridge. > I notified Ron Gregory at BLM, Sally Bird at Warm Springs, Drs > Thomas J. > Connolly and Jenkins at U of Oregon and Dennis Griffin at SHPO. I > left a voice mail for the Burns Paiute Tribe. > ASCO notified me that Wilson Wewa, and his grandmother before him, > prays > in the Dry River at the location of the pictographs. Wilson plans to > testify next week. I have received an email from him. > /Bill Marlett, Executive Director > Oregon Natural Desert Association > 16 NW Kansas > Bend, OR 97701 > 541.330.2638 > onda.org/ Oregon M. Lacy ("Mac"), Staff Attorney Oregon Natural Desert Association 917 SW Oak Street, Suite 408 Portland, OR 97205 503-525-0193 lacy@onda.org www.onda.org J 2 • Still Trying to Stop the Mine. There is lot of activity that happens in the Millican Valley, whether you are star gazer, or ride your bike, ATV, horse, or are just taking a drive to enjoy the scenery and wildlife. These opportunities could drastically change if a proposed open gravel pit receives approval from the county. Ron Robinson of 4R Equipment, with Deschutes County's support, have applied for a permit to operate a 365 acre rock pit on the corner of Spencer Well road (a.k.a. the county 23 road) and Hwy 20 E. They are asking for a zone change to the comprehensive plan. I can tell you that the noise from the trucks, generators and other equipment that would be running is deafening. The dusts arising from these operations and from blasting are terrible. Currently our home is on the east side of Moon pit, behind Horse Ridge. I can see the dust rising, smell the hot asphalt and hear the operational sounds from this site and its several miles from our house and not visible to anyone. Mr. Robinson's pit will " be visible from not only my front window but for everyone descending going east or going west over Horseridge. The Millican valley carries sound a long way, it is usually windy and dust blows without any disruption to the surface you can imagine what the dust will be once their rock crusher is in operation. " This new pit will not be like Mr. Robinson's other sites in Alfalfa or the Bend area, and when he is done using it, the county will more than likely use it for the new dump!! What a great way to fill up those huge holes. Is that what we want for the high desert? • His estimated 100-150 trucks a day will have to go up and down Horse Ridge, where there is no actual turning lane or shoulder, from Highway 20 on to Spencer Well Rd. The regular truck and passenger traffic, or bikes headed east or west will be impacted as Mr. Robinson's trucks turn off or onto Hwy 20. There is also a school bus stop in this same area. The truck traffic increase will be noticed by all who live along on Hwy 20. These trucks will have to stop for the weigh station and will probably take the new improved Rickard road cut across. Mr. Shields from Tumalo previously wrote and stated I need to get my facts straight. These are the facts: • This is zoned exclusive farm use, with a wildlife area and landscape management overlay. • I do know what a crusher and asphalt plant look and sound like. I've been around them many times. • This is not the Alfalfa area and there will be blasting that can damage the Dry River Canyon with the pictographs in it and or Coyote Well. My information on rock crushers and construction come from the fact that my husband is a superintendent of asphalt plants and rock crushers for 20 plus years, and both sons' work in this business. Mr. Shields, do you live across from a rock crusher or mining operation? Do you have a historical and archeology site to protect? Have you ever worked on a rock crusher? • This fight to stop this mine is not a personal attack on Ron Robinson or his business. It is a fight to protect our way of life, protect the pictographs; Coyote Well, wildlife and the • exclusive farm use zone. In the past Bend has lost some significant historical sites for the sake of growth and money. Destroying the Pilot Butte Inn was a shame and is now regretted by many people. If this canyon is damaged, the Native Americans and all will have lost something much more valuable then the rock Mr. Robinson would have profited from. Do you want to take this risk? We moved out to the Millican Valley for a reason, the solitude, quiet nights, wildlife and the beautiful view are just a few. With the Pine Mountain Observatory, the recreation opportunities and cattle ranching this valley is not the right place for an open rock pit with a crusher. I realize that Bend is growing and the demand for rock is increasing; however there are currently 168 permitted sites that DOGAMI has on their inventory list, let's develop those first. Please come to the public hearing on Wednesday, April 20 at 6:30 in the Barnes and Sawyer Conf. Room in the Deschutes County Hearings room. If you cannot attend this hearing please send to the county planners, Paul Blikstad or Pat Kliewer your comments. They will be entered as testimony into the record. Their addresses are: Pat Kliewergco.deschutes.or.us and paul blikstadnco.deschutes.or.us Tammie Walker Millican Valley 26730 Hwy 20 E • Bend, OR 97701 907-232-3464 U From: WA TEA VSE#q A Ali.c.e 'Keiser Greth 22240 Parker Lane • B.end,. Oregon 97701 READ # HEED # SPEAK OUT • March 12,,200i Once upon a time artesian wells gushed to the surface along the entirE Rocky Mountain Front Range..These wells flowed from the famous Ogallala sandstone aquifer. And then came development. Forty years ago farmers had to drill 800 feet for water,where there had once been artesian wells. Today the aquifer has dropped even deeper. Complete depletion is expected in the near futur e, as the water withdrawal from the aquifer is greater then the recharging-so equilibrium is gone. Our Deschutes desert is undergoing the same developer assault, with no concern for the existing aquifer, wildlife habitat and quality of life. Without water, quality of life will be of no importance, as there will be no life at all. Official guesstimates say there is enough water for one million people. Of course, these guesstimates favor the developer Accountability should be demanded of those who authorize the continuedd`, development with increased water use. The hydrologists' piezometric measurements can not foretell:if and when our aquifer will run dry, turning the entire area into a dust bowl.. Some Arizona residents are paying $240,00 a week to have water trucked to their property, due to failure of the aquifer. This can happen here, as sagebrush and wildlife habitat is torn up and water applied to formerly dry land. This is a desert.. Water is forever changing from, surface water to ground water-and back again.-Much of our surface water is dependent upon our mountain glaciers. Studies show these glaciers are melting back. Surface water • and ground water can replenish each other and are dependent on each other. ' A moratorium to stop heedless growth should be put into glace for the following reasons. 1. The future of the necessary water supply. Increased development increases the dangers of polluting the aquifer and surface waters. 2. System overuse by too many people. On some days odors from the sewage plant can be smelled several miles away. Overload: 3. Potential disappearance of the entire water supply with several years of drought.. There have already been water shortages with Possible super dry spells. Without water, All properties will-be worthless.' solutions 4. To prevent unaffordable water prices in the future, the city and county should purchase all privately owned companies. Water, an absolute necessity for all life, should not be a profit ca modity. 5• State growth mandates should be immediately abolished for all desert areas, either by the Governor, legislature, or by a citizen initiative petition and a vote by the people. 6. AuthoriAes and developers should be willing to submit written guarantees to provide a continuing water supply, whether by truck or pipelines to all of us in the future, when the well is run dry by this ongoing building assault. Unless the growth is halted. Alice Keiser Greth C~C e XZ-- • Retired science teacher, librarian From: Alice Keiser Greth 22240 Parker Lane Bend, Oregon 97701 • December 8, 2000 To: Deschutes County and-.Bend City Commissioners Bend, Oregon 97701 Sirs: Once upon a time artesian wells gushed to the surface along the entire Rocky Mountain front range. These wells flowed from. the famous Ogallala sandstoneaquifer. And then came the humanoid developers----.Forty years ago,farmers had to drill 800' for water where there had once been artesian wells. Today I read that the aquifer has dropped another 100;..feet. Complete depletion can be in the near future-as the water withrawal from the aquifer is greater then the recharging-so equilibrium is gone. Our Deschutes desert is undergoing the same developer assault. The guesstimates are that there is enough water here for 1 million humans. Of course these estimates favor the developers. Accountability should be demanded of those who authorize the continued.development with increased water use. The hydrologists' piezometric measurements can not fortell if and when our aquifers will run dry,turning the area into a dust bowl. Some Arizona residents must pay $240.00 a week to have water trucked in to their property, due to failure of the aquifer. This can Happen to our area,as sagebrush and wildlife habitat is torn up • and water supplies applied to new ground-this is a desert. Water is forever changing from surface water to groundwater and back again. Much of our surface water is dependent upon the area glaciers. These glaciers are -already melting back. The myth that growth can not be stopped is an outright lie...A moratorium on more growth canrput in.place. Justifications. 10. The future of the necessary water supply. Increased development increases the dangers of polluting the aquifer and surface waters. 2. Overuse by too many people. On many days we can smell the sewage plant in our area. 3- Potential disappearance of the entire water supply with several years of drought. There have already been water shortages during super-dry spells.'Without water,all 4. properties will be worthless.: To prevent disastrous skyhigh water prices in the future, the city and county should purchase all privately owned water companies. For 30 years my metered city water ran about $ 9.00 a month. Now,I am on Avion water and my monthly bill is $ 40.001.and Avion wants an increase in rates to provide for more development. Yours truly#. Alice Keiser Greth,.Retired science teacher and librarian pc Gov. Kitzhaber To all groups interested in preserving the environment for humans and all other wildlife r 1. • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 'age 1 - IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON AN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, Plaintiff, v. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. No. 99CV-0039 STIPULATED ORDER OF DISMISSAL WITH PREJUDICE Pursuant to a ORCP Rule 54A(1) the parties hereto stipulate to a dismissal hereof with prejudice and withoi t costs to either party. IT IS HEREBY ORDERED AND ADJUDGED based on the stipulation of the parties that this case is dismissed with prejudice and STIPULATED ORDER OF DISMISSAL CORDON VIA. STEWART, P.C. ATToRNEY AT Law 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 'age 2 - .T JUDGE STIPULATED ORDER OF DISMISSAL GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 GORDON W. STEWART, P.C. ATTORNEY AT LAW January 16, 2001 Jefferson County Circuit Court Jefferson County Courthouse 75 SE C Street Madras, OR 97741 VIA FAX AND REGULAR MAIL RE: Satterlee v. 2-R Equipment et al 99CV0039 Gordon W: Stewal-t ~L~nvyer/,'lfediaror Dear Court: The purpose of this letter is to advise the court that this case has been settled. There is a status conference set for January 18, 2001 and a trial is set for January 30, 2001. We will be submitting dismissal documents to the court in the near future. Please advise if the court has any questions. cc: Client Y Thomas L. Hutchinson - DAMyFiles\Client\Satterlee\ct letter 12.27.00 Street La\v Vices ;1195 N1N Wall Street ,Bend, Ceegen 97701 (541) 317-8404 Fax: (541) 352-6+375 1 • 2 3 • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 OA ?It ✓C.g 1 c IN TI-1 )REGON FOR THE CUUN rY Ur JhVT-EK-z5UN J SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, v. Plaintiff, No. 99-CV-0039 MOTION TO FILE SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. (Oral Argument Requested) Telecommunication Yes Estimated Time 10 minutes Court Reporter Plaintiffs' Counsel Gordon W. Stewart, 541-317-8404 Defendants' Counsel Tom Hutchinson and Ronald E. Bailey, 503-499-4582 Pursuant to ORCP 23 A, plaintiffs Sean Satterlee, Keri Satterlee, Doyle Satterlee, and Deloris Satterlee move the court for leave to file a second amended complaint, a copy of which is attached hereto as Exhibit 1, because justice so requires and in order that all issues between the parties be fully litigated in this action. This the first time that an amended complaint has been erage 1 - MOTION TO FILE SECOND AMENDED COMPLAINT& AUTHORITIES 4 GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 • 2 • 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 requested, the first amendment was a matter of course after this attorney took over the case and before the defendant filed his answer. The second amended complaint adds additional matters, including clarifying damage claims which became apparent during the course of discovery, during depositions and it also corrects certain inadvertent clerical errors in the amended complaint. This motion is supported by the attached Affidavit of Gordon W. Stewart filed herein. In accordance with UTCR 5.010, plaintiffs' attorney has conferred with counsel for defendants and he objects to the amendment at this time. DATED thist~ day of December, 2000. 4Goron Stewart, OSB# 74315 Attorney for Plaintiffs .Page 2 - MOTION TO FILE SECOND AMENDED COMPLAINT& AUTHORITIES CORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, Plaintiff, v. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. STATE OF OREGON ) ) ss. County of Deschutes ) No. 99-CV-0039 AFFIDAVIT IN SUPPORT OF MOTION TO FILE SECOND AMENDED COMPLAINT I, Gordon W. Stewart, being first duly sworn, depose and say as follows: I am the attorney of record for plaintiffs in the above captioned matter. It is a suit for trespass, strict liability, and negligence arising out of defendants' blasting activities. Blasting is an abnormally dangerous activity. 1 2 3 4 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 .Page 1 - AFFIDAVIT IN SUPPORT OF MOTION TO FILE SECOND AMENDED COMPLAINT CORDON W. STEWART, P.C. ATTORNEY AT LAZY 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • U 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In the process of preparing this matter for trial we have undertaken discovery and held depostions in September for some of defendants employees and for the plaintiffs except for Keri Satterlee who was almost at full term of her pregnancy and unable to give her deposition. At the conclusion of the depositions in September I advised counsel that I may need to amend my complaint to comply with the matters which came out of the depositions. It was anticipated at that time the deposition of Keri Satterlee and additional employees of defendant would be held after the birth of her child. The child was born in late September and we were unable to schedule depositions until January 4, 2001. Ms. Satterlee was unavailable for most of October due to her new child. The parties tried to schedule the depositions in November and December, however despite numerous attempt no dates became available for counsel until late December which conflicted with the plaintiff s responsibility to their retail business on the holidays. Defendants first request for production which was served on plaintiffs was dated December 8, 2000. I am unaware of any prejudice to the defendants by the courts allowance of this amendment. I faxed and mailed to Mr. Hutchinson counsel for defendants an copy of the proposed Second Amended complaint with the changes underlined on December 14, 2000. Mr. Hutchinson advised me by telephone on December 26, 2000 that he opposed my filing the complaint and he has subsequently advised me that he may change his position but will not know until next week. The amended complaint is not made for the purposes of delay. DATED thisa tay of December, 2000. G don . Stewart, OSB# 74315 1~e~_~ iyc bar SUBSCRIBED AND SWORN TO before me this A 4, day ofNF-o~i', 2000. OFFICIAL SEAL BETTY A SCHREIBER NOTARY PUBLIC-OREGON COMMISSION NO. 337688 otary P)O61ic for Oregon Page 2 - AFFIDAVIT IN SUPPORT OF MOTION TO FILE SECOND AMENDED COMPLAINT GORDON Vt. STEWART, P .C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 L~ 74 l z IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, Plaintiff, v. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC.-, an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. Plaintiffs allege: I . No. 99-CV-0039 SECOND AMENDED COMPLAINT (TRESPASS; ABNORMALLY DANGEROUS ACTIVITY; NEGLIGENCE) JURY TRIAL DEMAND CLAIM NOT SUBJECT TO MANDATORY ARBITRATION At all material times, plaintiffs were and are residents of Madras, Jefferson County, Oregon. 2. At all material times, defendant 2-R Equipment, LLC, is an Oregon Limited Liability Company, had a principal place of business in Bend, Deschutes County, Oregon, and owned and was the unlicenced operator of a rock quarry known as Willow Creek Quarry, located in Jefferson 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 • Page 1 - SECOND AMENDED COMPLAINT GORDON'W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 I • County, Oregon, the site of which immediately adjoins plaintiffs' residences as described in 2 paragraphs 5-6. 3 3. 4 At all material times, defendant Jack Robinson & Sons, Inc., is an Oregon corporation, 5 and has a principal place of business in Bend, Deschutes County, Oregon. Defendants Jack 6 Robinson and Ron Robinson are owners of and managers of Jack Robinson and Sons Inc . 7 4. 8 At all material times, defendants Ronald Robinson, Sr., and Ron Robinson, Jr., are 9 residents of Deschutes County, Oregon, and are the owners and managers of 2-R Equipment, 10 LLC. 11 5. 12 At all material times, plaintiffs Sean and Keri Satterlee were, and still are, the owners and 13 possessors of certain real property located at 634 NW Glass Drive, Madras, Jefferson County, 14 Oregon. Plaintiffs Doyle and Deloris Satterlee were, and still are, the owners and possessor 15 certain real property located at 720 NW Glass Drive, Madras, Jefferson County, Oregon which 16 are adjoining properties. 17 6. 18 Plaintiffs Sean and Keri Satterlees' above-described real property consists of 19 approximately five acres of improved farm land on which are constructed a Quonset hut, a 20 dwelling house, and other structures. At all relevant times the house was and is plaintiffs Sean 21 and Keri Satterlees' primary residence. 22 7 23 Plaintiffs Doyle and Deloris Satterlees' above-described real property consists of 24 approximately twenty plus acres of improved farm land in one parcel and a dwelling on 25 approximately one acre on a separate parcel. At all relevant times the house was and is plaintiffs 26 Doyle and Deloris Satterlees' primary residence. . Page 2 - SECOND AMENDED COMPLAINT GORDON W. STEWART, P .C. ATTORNEY AT LACY 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 8. 2 On May 10, 1999, without providing prior notice to plaintiffs or taking reasonable 3 precautions to insure a safe blast the defendants conducted blasting operations at the quarry. 4 During the course of the blasting operations, a blast of such force and violence was discharged 5 that many rocks, some of which weighed over 100 pounds, landed throughout the plaintiffs' 6 properties and around and in the immediate vicinity of the residence of plaintiffs Sean and Keri 7 Satterlee. 8 9. 9 Plaintiff Keri Satterlee saw the blast conducted by defendants. Plaintiff Keri Satterlee felt 10 the blast and the resulting shock wave from the blast, and saw a large plume of dust and rock 11 from the blast as it enveloped plaintiffs' homes and the property adjacent to defendants' quarry. 12 10. 13 At the time of the blast, plaintiff Keri Satterlee was pregnant. During and after the blast, 14 and as a result of the defendants' blasting activities, plaintiff Keri Satterlee has experienced 15 severe emotional distress, and subsequently suffered a miscarried pregnancy on June 15, 1999. 16 First Claim for Relief 17 (Trespass as to Defendants Doyle and Deloris Satterlee) 18 11. 19 Plaintiffs reallege paragraphs 1 through 9. 20 12. 21 During the course of defendant's operations between February 1999 and May 10, 1999 22 at the Willow Creek Quarry, defendants intentionally entered onto plaintiffs Doyle and Deloris 23 Satterlees' property and leveled part of plaintiffs' property, removing substantial soil, shrubs and 24 trees in the process, for the purpose of constructing a road or platform to facilitate the blasting 25 and removal of rock from the quarry. 26 13. Page 3 - SECOND AMENDED COMPLAINT fiORDON W. STEWART, P.C. ATroRNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 9 Fax (541) 382-6875 I the real property. Upon the sale of their real property, the plaintiffs will now have • 2 to generally disclose and specifically disclose as required by ORS 105.465 to all 3 purchasers the material defect and condition whereby the real property has been 4 showered by blasted rock of various sizes some of which weighed over 100 5 pounds. The value of their dwelling, out buildings and real property has been 6 diminished in the sum of $165,000.00. 7 c. The blast witnessed by Plaintiff Keri Satterlee was the proximate cause of 8 anxiety, sleeplessness, nightmares and severe emotional and physical distress 9 suffered by Keri Satterlee and which caused her subsequent pregnancy 10 miscarriage and continuing emotional distress in the sum of $100,000.00. 11 12 Third Claim for Relief 13 (Trespass by Blasting as to Plaintiffs Doyle and Deloris Satterlee) 14 18. 15 Plaintiffs hereby realleges paragraphs 1 through 9. 16 19. 17 As a direct and proximate result of the blasting, defendants committed a trespass on the 18 real property described above, and damaged said real property in the following particulars: 19 a. Large amounts of rock debris were deposited on plaintiffs' property, and 20 defendants without any permission placed employee lookouts theron. The direct 21 and proximate result of defendants' trespass resulted in general damages to 22 plaintiffs in the sum of $50,000. 23 b. The real property of the plaintiffs is an ideal location in Jefferson County with a 24 panoramic view of the Cascade Mountains and is located close to the City of 25 Madras, which is a rapidly growing Central Oregon City. The direct and 26 proximate result of the defendants' acts has caused a diminution of the value of age 5 - SECOND AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 the real property. Upon the sale of their real property, the plaintiffs will now have 2 to generally disclose and specifically disclose as required by ORS 105.465 to all 3 purchasers the material defect and condition whereby the real property has been 4 showered by blasted rock of various sizes some of which weighed over 100 5 pounds. The value of their real property has been diminished in the sum of 6 $80,000.00 or such sum larger sum that is proven at trial. 7 8 Fourth Claim for Relief 9 (Strict Liability: Abnormally Dangerous Activity 10 as to Plaintiffs Sean and Keri Satterlee) 11 20. 12 Plaintiffs reallege paragraphs 1 through 10. 13 21. 14 Defendants' blasting operation on May 10, 1999, was an abnormally dangerous activity 15 in that it was located near plaintiffs and their property, posed a risk of grave harm to plaintiffs and 16 their property, and did cause damage to plaintiffs' property, diminished the value of their real 17 property and caused severe emotional distress to plaintiffs, in that the plaintiffs feared and 18 continue to fear for the safety of their families, their pets, their land, their well-being, and their 19 homes, based upon the past and future operations of defendants. 20 22. 21 As a direct and proximate result of the blasting, defendants committed a trespass on the 22 real property described above, and damaged said real property in the following particulars: 23 a. Large amounts of rock debris were deposited on plaintiffs' property, and 24 defendants without any permission to do so entered these plaintiffs' real property 25 and placed employee lookouts and a seismograph thereon. The direct and 26 proximate result defendant's trespass resulted in general damages to the plaintiffs evage 6 - SECOND AMENDED COMPLAINT CORDON W. STEWART, P.C. AT oRNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 9 Fax (541) 382-6875 I in the sum of $50,000.00. 2 b. The real property of the plaintiffs is an ideal location in Jefferson County with a 3 panoramic view of the Cascade Mountains and is located close to the City of 4 Madras, which is a rapidly growing Central Oregon City. The direct and 5 proximate result of the defendants' acts has caused a diminution of the value of 6 the real property. Upon the sale of their real property, the plaintiffs will now have 7 to generally disclose and specifically disclose as required by ORS 105.465 to all 8 purchasers the material defect and condition whereby the real property has been 9 showered by blasted rocks some of which weighed over 100 pounds. The value 10 of their dwelling, out buildings and real property. has been diminished thusly in 11 the sum of $165,000.00. 12 c. The blast witnessed by Plaintiff Keri Satterlee was the proximate cause of 13 anxiety, sleeplessness, nightmares and severe emotional and physical distress 14 suffered by Keri Satterlee and which caused her subsequent pregnancy 15 miscarriage and continuing emotional distress in the sum of $100,000.00. 16. Fifth Claim for Relief 17 (Strict Liability: Abnormally Dangerous Activity 18 as to Plaintiffs Doyle and Deloris Sattterlee) 19 23. 20 These Plaintiffs reallege paragraphs 1 through 9 and paragraphs 19 and 21. 21 Sixth Claim for Relief 22 (Neligence as to Plaintiffs Sean and Keri Satterlee) 23 24. 24 Plaintiffs reallege paragraphs 1 through 10 and paragraph 22. 25 25. 26 Defendants owed plaintiffs a duty to exercise reasonable care for plaintiffs' safety. age 7 - SECOND AMENDED COMPLAINT GORDON W. STEWART, P.C. ATroRNeY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 I Defendants breached that duty in that they failed to notify plaintiffs of the blast before it occurred 2 and failed to take reasonable precautions to avoid danger or damage to plaintiffs and their 3 property. 4 26. 5 Defendants knew or should have known that their actions created an unreasonable risk 6 of harm to persons such as plaintiffs and their property, and as a direct result of their actions, 7 plaintiffs' property was damaged as set forth herein and plaintiff Keri Satterlee suffered anxiety, 8 sleeplessness, nightmares and severe emotional and physical distress, which caused her 9 subsequent pregnancy miscarriage and continuing emotional distress all to her damage in the sum 10 of $100,000.00. 11 12 WHEREFORE, on each claim for relief, plaintiffs request judgment against defendants, 13 and each of them, as follows: 14 1. On plaintiffs' first claim for relief: • 15 For damages in the amount of $50,000 for plaintiffs Doyle and Deloris Satterlees' 16 claim for trespass together with treble damages, and their costs and attorney fees. 17 2. On Plaintiffs Sean and Keri Satterlees' second claim for relief for damages as the 18 result of defendants' trespass by blasting as follows: 19 a. For the sum of $50,000.00 in general damages for the trespass and rock debris 20 showered on the plaintiffs' real property, 21 b. For the sum of $165,000.00 for the diminution of the value of the real property 22 of these plaintiffs, 23 c. For the sum of $100,000.00 for emotional distress to Keri Satterlee; 24 3. On plaintiffs Doyle and Deloris Satterlees' third claim for relief for trespass by 25 blasting as follows: 26 a. For the sum of $50,000.00; Wage 8 - SECOND AMENDED COMPLAINT CORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 0. 2 3 4 5 6 7 8 9 10 11 12 13 14 • 15 16 17 18 19 20 21 22 23 24 25 26 df age 9 - b. For the sum of $80,000.00 or such larger sum that is proven at trial for the diminution of the value of the real property of these plaintiffs. 4. On plaintiffs Sean and Keri Satterlees' fourth claim for relief for damages for abnormally dangerous activity as follows: a. For the sum of $50,000.00 in general damages for the rock debris showered on these plaintiff's real property, b. For the sum of $165,000.00 for the diminution of the value of the dwelling, out buildings and real property of these plaintiffs, c. For emotional distress to Keri Satterlee in the sum of $100,000.00, 5. On plaintiffs Doyle and Deloris Satterlees' fifth claim for relief for damages for abnormally dangerous activity as follows: a. For the sum of.$50,000.00, b. For the sum of $80,000.00 for the diminution of the value of the dwelling, out buildings and real property of these plaintiffs, 6. On plaintiffs Sean and Keri Satterlees' sixth claim for relief for negligence as follows: a. For the sum of $50,000.00 in general damages for the rock debris showered on these plaintiff's real property, b. For the sum of $165,000.00 for the diminution of the value of the real property of the plaintiffs, c. For emotional distress to Keri Satterlee in the sum of $100,000.00; 7. For plaintiffs' costs and disbursements; 8. For such other and further relief as the court may deem just and proper. DATED this day of December, 2000. Gordon W. Stewart, OSB# 74315 Attorney for Plaintiffs SECOND AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • CERTIFIED TRUE COPIES I, GORDON W. STEWART, hereby certify that the foregoing copy of the Motion to file Amended Complaint, Affidavit and proposed Second Amended Complaint is a true copy of the original document filed herein. GORDON W. STEWART, OSB 74315 Attorney for CERTIFICATE OF SERVICE I, GORDON W. STEWART, hereby certify that on this date, I served a true copy of the foregoing Motion to file Second Amended Complaint, Affidavit and proposed Second Amended Complaint by the method indicated below, and addressed to each of the following individuals: Thomas L. Hutchinson Bullivant, Houser, Bailey, P.C. Attorneys at Law 300 Pioneer Tower 888 SW Fifth Avenue • Portland, OR 97204-2089 XX U. S. Mail, Postage Prepaid Hand Delivered Overnight Mail XX Facsimile Transmission DATED: December 27, 2000. Attorney for Plaintiff GORDON W. STEWART Wall Street Law Offices 1195 NW Wall Street Bend, OR 97701 (541) 317-8404 • Page 1 - CERTIFIED TRUE COPIES/CERTIFICATE OF SERVICE 4 5 6 7 8 9 10 11 12 13 a 14 0 cum 15 16 d = 17 18 U 19 20 21 22 23 24 25 26 27 2811 00 AUG -3 AN X: 03 Cili 1 STATE C, 0 E G 0 N 7, n : T S 7 , ..,~..G IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, Plaintiff, No. 99-CV-0039 MOTION AND ORDER TO CONTINUE PRE-TRIAL HEARING V. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. Comes now Gordon W. Stewart and moves the Court for an order continuing the Pre-Trial set in this case for October 3, 2000 at 8:45 AM to October 10, 2000 at 8:45 AM. This motion is not made for the purposes of delay but for the reason that Gordon Stewart will be on vacation and unable to appear at that time. Dated1his 4`h day of August, 20 i vv , W. Stewart, OSB 743 Page 1 - Motion and Order to Continue Pre-Trial • 0 8 0 10 11 12 13 ~ i 14 15 41 C9 % O co ~Z 16 6 LO a) n 17 18 19 20 21 22 23 24 25 26 27 28 II ORDER BASED ON THE Motion of Plaintiff to continue the Pre-trial set in this matter for October 3, 2000 and good cause appearing therefore it is HEREBY ORDERED that the Pre-trial set in this matter is continued until October 10, 2000 at 8:45 AM.. Page 2 - Motion and Order to Continue Pre-Trial Dated this iday of August, 2000. • CERTIFIED TRUE COPIES I, GORDON W. STEWART, hereby certify that the foregoing copy of theMotion and Order is a true copy of the original document filed herein. GORDON W. STEWART, OSB 74315 Attorney for CERTIFICATE OF SERVICE I, GORD.ON W. STEWART, hereby certify that on this date, -I served a true copy of the foregoing Motion and Order by the method indicated below, and addressed to each of the following individuals: Ronald E. Bailey Bullivant, Houser, Bailey, P.C. Attorneys at Law 300 Pioneer Tower 888 SW Fifth Avenue Portland, OR 97204-2089 n LJ XX U. S. Mail, Postage Prepaid Hand Delivered Overnight Mail Facsimile Transmission DATED: August 4, 2000. Attorney for Plaintiff GORDON W. STEWART Wall Street Law Offices 1195 NW Wall Street Bend, OR 97701 (541) 317-8404 • Page 1 - CERTIFIED TRUE COPIES/CERTIFICATE OF SERVICE GORDON W. STEWART- m ATTORNEY AT LAW 00 A Us -7 AN ~ : ~.tY WRr T S 1 t'i fVC f~i tj E~ V6N N August 4, 2000 Jefferson County Circuit Court ` Jefferson County Courthouse 75 SE C Street r' Madras OR 97741 RE: Satterlee v. 2-R Equipment et al 3i don W. Stewart 99CV0039 I ~nvy~er/.ilerliator Dear Court: I received a pre-trial hearing notice dated August 1, 2000 setting the next pre-trial for October 3, 2000. I will be out of the country from September 18 through October 4, 2000 and will be available the following week. Could this pre-trial be t changed to a date in the following week? Very jiftily yours, M.r♦ ' J N W. STEW cc: Client r Ron Bailey - . DAMyFilea\Client\Satterke\ct letter 8.3.00 Y j 3 "Wall St-eet Law Offices 1;195 NvN. W a I I Street .B Q Oregon 97701 (541) 317-8404 Fax: (541)382-6875 FILE JEFFERSOF-l COUNT Y t0 JtJI_31 12 Li{V..+I i ST ATE OF OREGOti IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORTS 1. SATTERLEE, husband and wife, No. 99-CV-0039 Plaintiffs, ANSWER TO AMENDED V. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; RON ROBINSON, JR., an individual., Defendants. COMPLAINT (REQUEST FOR JURY TRIAL) Defendants admit, deny and allege: 1. Defendants admit the allegations in Paragraph 1. 2. Defendants admit the allegations contained in Paragraph 2 except to deny that defendant 2-R Equipment, LLC was the unlicensed operators of the rock quarry. 3. Defendants admit the allegations contained in Paragraph 3. Page I - ANSWER TO AMENDED COMPLAINT BULLIVANT HOUSER BAB,EY A Professional Corporation 888 SW Fifth Avenue, Suite 300 Portland, Oregon 97204-2089 Telephone (503) 228-6351 • 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 4. Defendants admit the allegations contained in Paragraph 4. 5. Defendants admit the allegations contained in Paragraph 5. 6. Plaintiff's Amended Complaint does not contain a Paragraph 6. 7. Defendants admit the allegations contained in Paragraph 7. 8. Defendants admit the allegations contained in Paragraph 8. 9. Defendants admit that on May 10, 1999, a blasting operation was conducted at the Willow Creek Quarry, which deposited a minor amount of rock on the field and grounds adjacent to plaintiffs' home, but deny the remaining allegations of Paragraph 9. 10. Defendants admit that plaintiff Keri Satterlee observed the blast from a nearby highway, may have experienced the normal and expected resulting shock wave, but deny the remaining allegations of Paragraph 10 as characterized. 11. Defendants admit that plaintiff Keri Satterlee was pregnant at the time of the blast and later experienced a miscarried pregnancy on June 15, 1999, but allege that they are without sufficient or information with which to form a belief as to the nature or extent of any emotional distress as alleged in Paragraph 11 and therefore deny that portion of Paragraph 11 at this time. Page 2 - ANSWER TO AMENDED COMPLAINT BULLIVANT HOUSER BAILEY A Professional Corporation 888 SW Fifth Avenue, Suite 300 Portland, Oregon 97204-2089 Telephone (503) 228-6351 1 12. 2 Defendants reallege their admissions and denials relating to 3 Paragraphs 1 through 9. 4 13. 5 Defendants deny the allegations contained in Paragraph 13. 6 14. 7 Defendants deny the allegations contained in Paragraph 14. 8 15. 9 Defendants deny the allegations contained in Paragraph 15. 10 16. 11 Defendants deny the allegations contained in Paragraph 16. 12 17. 13 Defendants reallege their admissions and denials relating to 14 Paragraphs 1 through 10. 15 18. 16 Defendants admit that some rock debris was deposited on 17 plaintiffs' property as a result of the blast of May 10, 1999, but, except as 18 admitted, defendants deny the remaining allegations of Paragraph 18. 19 19. 20 Defendants deny the remaining allegations of plaintiffs' Amended 21 Complaint as contained in Paragraphs 19 through 24 and the prayer of the 22 Amended Complaint as contained on Pages 7 through 9, except as expressly 23 admitted above. 24 FIRST AFFIRMATIVE DEFENSE 25 20. • 26 ' The allegations contained in plaintiff s Fourth Claim for Relief Page 3 - ANSWER TO AMENDED COMPLAINT BULLIVANT HOUSER BAILEY A Professional Corporation 888 SW Fifth Avenue, Suite 300 Portland, Oregon 97204-2089 Telephone (503) 228-6351 fails to allege facts sufficient to constitute a claim for relief against defendants. SECOND AFFIRMATIVE DEFENSE 21. The allegations contained in plaintiff's Fifth Claim for Relief fails to allege facts sufficient to constitute a claim for relief against defendants. THIRD AFFIRMATIVE DEFENSE 22. The allegations contained in plaintiff's Sixth Claim for Relief fails to allege facts sufficient to constitute a claim for relief against defendants. WHEREFORE, having answered plaintiff's Amended Complaint, defendants pray for judgment herein. DATED this 28th day of July, 2000. BULLIVANT HOUSER BAILEY A Professional Corporation By ona d C Bailey, OSB #63 0022' Attorneys for Defendants Page 4 - ANSWER TO AMENDED COMPLAINT BULLIVANT HOUSER BAILEY A Professional Corporation 888 SW Fifth Avenue, Suite 300 Portland, Oregon 97204-2089 Telephone (503) 228-6351 1 2 3 A 0 14 5 6 7 8 9 10 11 12 13 15 16 17 18 19 20 CERTIFICATE OF SERVICE I hereby certify that on the 28thth day of July, 2000, I served the foregoing ANSWER TO AMENDED COMPLAINT on the following attorney of record by delivering to said attorney a copy thereof, by the method indicated, addressed as follows: Gordon W. Stewart (MAIL) 1195 NW Wall Street Bend, OR 97701 Attorney for Plaintiffs By Ronal . Bailey, OSB 30 Of Attorneys for Defe dants 21 22 23 24 25 26 ]Page -CERTIFICATE OF SERVICE BULLIVANT HOUSER BAILEY A Professional Corporation 888 SW Fifth Avenue, Suite 300 Port land, Oregon 97204-2089 Telephone(503)228-6351 Crook County Courthouse Jefferson County Courthouse 300 E Third Street - Room 10 75 SE "C" Street Prineville, OR 97754-1990 Madras, OR 97741-1750 (541) 447-6541 or 447-5116 (541) 475-3421 or 475-3317 Reply to ( ) Reply to ( ) Judge Gary S. Thompson Judge George W. Neilson Judge Daniel J. Ahern Presiding Judge Twenty-Second Judicial District Trial Courts July 21, 2000 Ronald Bailey Attorney at Law 300 Pioneer Tower 888 SW Fifth Ave. Portland, OR 97204 RE: Satterlee v. 2-R Equipment, LLC et al Jefferson Co. Circuit Court Case No. 99-CV-0039 Dear Mr. Bailey: A pre-trial conference was scheduled on July 13, 2000, at 8:3.5 a.m. in which you failed to appear. Mr. Stewart indicated to the Court that he would be filing an Amended Complaint. The Amended Complaint was filed on July 17, 2000. In reviewing the file, the Court took note that a response had not yet been filed. The Court will give you ten (10) days to file your response. Once the response has been filed, a new pre-trial conference date will be set: Sincerely, Q(~ A~~L- DANIEL lERN L: cep Circuit Court Judge y DJA / 1 b c : Gordon Stewart /z 0 1 2 3 4 5 6 7 8 9 10 11 12 13 • 14 15 16 17 18 19 20 21 22 23 24 25 26 Wage 1 - { E D _.l,,r-1Ty 00 JUL ( 7 Aid t S : 19 C I R C(-1,:'i 'J4Z T STATE U - ukEGON FIL.ED JEFFr Y 00 JUL i 10: SS L' Cr' U t ST TE Gr G EGOfI IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF JEFFERSON SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, Plaintiff, v. 2-R EQUIPMENT, LLC., an Oregon Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon corporation; RONALD ROBINSON, SR., an individual; and RON ROBINSON, JR., an individual; Defendant. Plaintiffs allege: No. 99-CV-0039 AMENDED COMPLAINT (TRESPASS; ABNORMALLY DANGEROUS ACTIVITY; NEGLIGENCE) JURY TRIAL DEMAND CLAIM NOT SUBJECT TO MANDATORY ARBITRATION At all material times, plaintiffs were and are residents of Madras, Jefferson County, Oregon. 2. At all material times, defendant 2-R Equipment, LLC is an Oregon Limited Liability Company, had a principal place of business in Bend, Deschutes County Oregon, and they owned AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-8875 • I and were the unlicensed operators a rock quarry known as Willow Creek Quarry, located in 2 Jefferson County, Oregon, the site of which immediately adjoined plaintiff's residence as 3 described in paragraph 6. 4 3 5 At all material times, defendant Jack Robinson & Sons, Inc., is an Oregon corporation, 6 and has a principal place of business in Bend, Deschutes County, Oregon. 7 4. 8 At all material times, defendants Ronald Robinson, Sr., and Ron Robinson, Jr., are 9 residents of Deschutes County, Oregon, and are the owners and managers of 2-R Equipment LLC.' 10 5. 11 At all material times, plaintiffs Sean and Keri Satterlee were, and still are, the owners and 12 possessors of certain real property located at 634 NW Glass Drive, Madras, Jefferson County, 13 Oregon. Plaintiffs Doyle and Deloris Satterlee were, and still are, the owners and possessors of 14 certain real property located at 720 NW Glass Drive, Madras, Jefferson County, Oregon. 15 7. 16 Plaintiffs Sean and Keri Satterlee's above-described real property consists of 17 approximately five acres of improved farm land on which are constructed a Quonset hut, a 18 dwelling house, and other structures. At all relevant times the house was and is plaintiffs' 19 primary residence. 20 8. 21 Plaintiffs Doyle and Deloris Satterlee's above-described real property consists of 22 approximately twenty-one acres of improved farm land on which is constructed a dwelling house. 23 At all relevant times the house was and is plaintiffs' primary residence. 24 9. 25 On May 10, 1999, without providing prior notice to plaintiffs, defendants conducted 26 II blasting operations at the quarry. During the course of the blasting operations, a blast of such Spage 2 - AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • I force and violence was discharged that many rocks, some of which weighed over 100 pounds 2 landed throughout plaintiffs' property and around and in the immediate vicinity of the residence 3 of plaintiffs Sean and Keri Satterlee. 4 10. 5 Plaintiff Keri Satterlee saw the blast conducted by defendants. Plaintiff Keri Satterlee felt 6 the blast and the resulting shock wave from the blast, and saw a large plume of dust and rock 7 from the blast as it enveloped plaintiffs' home and property adjacent to defendants' quarry. 8 11. 9 At the time of the blast, plaintiff Keri. Satterlee was pregnant. During and after the blast, 10 and as a result of the defendants' blasting activities, plaintiff Keri Satterlee experienced severe 11 emotional distress, and subsequently suffered a miscarried pregnancy on June 15, 1999. 12 First Claim for Relief 13 (Trespass as to Defendants Doyle and Deloris Satterlee) • 14 12. 15 Plaintiffs reallege paragraphs 1 through 9. 16 13. 17 During the course of defendant's operations between February 1999 and May 10, 1999 18 at the Willow Creek Quarry, defendants intentionally entered onto plaintiffs Doyle and Deloris 19 Satterlee's property and leveled part of plaintiffs' property, removing substantial soil, shrubs and 20 trees in the process, for the purpose of constructing a road or platfor xi to facilitate the blasting 21 and removal of rock from the quarry. 22 14. 23 Defendants did not seek, and plaintiffs Doyle and Deloris Satterlee did not consent to, 24 defendants' entry onto their property, the removal of soil, shrubs and trees, and the changing of 25 the physical characteristics of the property. 26 `Page 3 - AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wail Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • 1 15. 2 As a direct and proximate result of defendants' conduct, plaintiffs Doyle and Deloris 3 Satterlee have been damaged in the amount of $50,000. 4 16. 5 These acts were done willfully, intentionally and without plaintiffs consent. Plaintiffs 6 Doyle and Deloris Satterlee are entitled to Treble Damages pursuant to ORS 105.810 and costs 7 including but not limited to investigation costs and attorney fees. 8 Second Claim for Relief (Trespass by Blasting as to Plaintiffs Sean and Keri Satterlee) 9 10 .17. Plaintiffs reallege paragraphs 1 through 10. 11 12 18. As a direct and proximate result of the blasting, defendant committed a trespass on the 13 real property described above, and damaged said real property in the following particulars: 14 • 15 a. Large amounts ofrock debris were deposited on plaintiffs property and defendants 16 without any permission to do so entered these plaintiff's real property and placed 17 a seismograph thereon. The direct and proximate result of defendant's trespass 18 resulted in general damages to the plaintiffs in the sum of $50,000. 19 b. The real property of the plaintiffs is an ideal location in Jefferson County with a 20 panoramic view of the Cascade Mountains and is located close to the City of 21 Madras which is a rapidly growing Central Oregon City. The direct and 22 proximate result of the defendants acts has caused a diminution of the value of the 23 real property. Upon the sale of their real property the plaintiffs will now have to 24 generally disclose and specifically disclose as required by ORS 105.465 to all 25 purchasers the material defect and condition whereby the real property has been 26 showered by blasted rock of various sizes some of which weighed over 100 Vage 4 - AMENDED COMPLAINT 60HWN W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 1 pounds. Thereby diminishing the value of their dwelling, out buildings and real 2 property in the sum of $165,000.00. 3 4 Third Claim for Relief (Trespass by Blasting as to Plaintiffs Doyle and Deloris Satterlee) 5 6 19. 7 Plaintiff hereby realleges paragraphs 1 through 10. 8 20. 9 As a direct and proximate result of the blasting, defendant committed a tespass on the real 10 property of these plaintiffs, and damaged said real property in the following particulars: 11 Amounts of rock debris were deposited on these plaintiff's real property. The direct and 12 proximate result of Defendant's trespass resulted in general damages to these plaintiffs in the sum 13 of $25,000,00. 14 • Fourth Claim for Relief 15 (Strict Liability: Abnormally Dangerous Activity as to Plaintiffs Sean and Keri Satterlee) 16 17 21. 18 Plaintiffs reallege paragraphs 1 through 11. 19 22. 20 Defendants' blasting operation on May 10, 1999; was an abnormally dangerous activity 21 in that it was located near plaintiffs and their property, posed a risk of grave harm to plaintiffs and 22 their property, and did cause damage to plaintiffs' property, diminished the value of their real 23 property and caused severe emotional distress to plaintiffs, in that the plaintiffs feared and 24 continue to fear for the safety of their families, their pets, their land, their well-being, and their 25 homes, based upon the past and future operations of defendants. 26 lWage 5 - AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 9 Fax (541) 382-6875 • 1 23. 2 As a direct and proximate result of the blasting, defendant committed a trespass on the 3 real property described above, and damaged said real property in the following particulars: 4 5 a. Large amounts of rock debris were deposited on plaintiffs property. The direct 6 and proximate result defendant's trespass resulted in general damages to the 7 plaintiffs int the sum of $50,000.00. 8 b. The real property of the plaintiffs is an ideal location in Jefferson County with a 9 panoramic view of the Cascade Mountains and is located close to the City of 10 Madras which is a rapidly growing Central Oregon City. The direct and 11 proximate result of the defendants acts has caused a diminution of the value of the 12 real property. Upon the sale of their real property they will now have to generally 13 disclose and specifically disclose as required by ORS 105.465 to all purchasers • 14 the material defect and condition whereby the real property has been showered by 15 blasted rocks some of which weighed over 100 pounds. Thereby diminishing the 16 value of their dwelling, out buildings and real property in the sum of $165,000.00. 17 c. The severe emotional and physical distress suffered by Keri Satterlee which was 18 a contributing factor in her subsequent pregnancy miscarriage in the sum of 19 $100,000.00. 20 21 Fifth Claim for Relief (Strict Liability: Abnormally Dangerous Activity as to Plaintiffs Doyle and Deloris 22 Sattterlee) 23 24. 24 These Plaintiffs reallege paragraphs 1 through 10 and paragraphs 20 and 22. 25 26 Sixth Claim for Relief (Neligence as to Plaintiffs Sean and Keri Satterlee) age 6 - AMENDED COMPLAINT GORDON VV. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • 1 2 25.. 3 Plaintiffs reallege paragraphs 1 through 10 and paragraph 23. 4 26. 5 Defendants owed plaintiffs a duty to exercise reasonable care for plaintiffs' safety. 6 Defendants breached that duty in that they failed to notify plaintiffs of the blast before it occurred 7 and failed to take reasonable precautions to avoid danger or damage to plaintiffs and their 8 property. 9 24 10 Defendants knew or should have known that their actions created an unreasonable risk 11 of harm to persons such as plaintiffs and their property, and as a direct result of their actions, 12 plaintiffs' property was damaged as set forth herein and plaintiff Keri Satterlee suffered severe 13 emotional and physical distress, which was a contributing factor in her subsequent pregnancy • 14 miscarriage. 15 16 17 WHEREFORE, on each claim for relief, plaintiffs request judgment against defendants, 18 and each of them, as follows: 19 20 1. On Plaintiff's first claim for relief: 21 For damages in the amount of $50,000 for defendant Doyle and Deloris 22 Satterlee's claim for Trespass together with Treble Damages, and their costs and 23 attorney fees. 24 2. On Plaintiff's Sean and Keri Satterlee's Second Claim for Relief for damages as 25 the result of defendants trespass by blasting as follows: 26 a. For the sum of $50,000.00 in general damages for the trespass and rock debris Wage 7 - AMENDED COMPLAINT GORDON W. STEWART, P.C. ATTDRNEYAT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 9 Fax (541) 382-6875 I showered on the Plaintiff's real property, • 2 b. For the sum of $165,000.00 for the diminution of the value of the real property 3 of these Plaintiffs, 4 c. For the sum of $100,000.00 for emotional distress to Keri Satterlee; 5 3. On Plaintiff's Doyle and Deloris Satterlee's Third Claim for Relief for Trespass 6 by blasting as follows: 7 a. For the sum of $25,000.00; 8 4. On Plaintiff's Sean and Keri Satterlee's Fourth claim for relief for damages for 9 abnormally dangerous activity as follows: 10 a. For, the sum of $50,000.00 in general damages for the rock debris showered on 11 these Plaintiff's real property, 12 b. For the sum of $165,000.00 for the diminution of the value of the dwelling, out 13 buildings and real property of these Plaintiffs, 14 c. For emotional distress to Keri Satterlee in the sum of $100,000.00. 15 5. On Plaintiff's Doyle and Deloris Satterlee's Fifth claim for relief for damages for 16 abnormally dangerous activity as follows: 17 a. For the sum of $25,000.00. 18 6. On Plaintiff's Sean and Keri Satterlee's Sixth claim for relief for negligence as 19 follows: 20 a. For the sums of $50,000.00 in general damages for the rock debris showered 21 on these plaintiffs real property, 22 b. For the sum of $165,000.00 for the diminution of the value of the real property 23 of the plaintiffs, 24 c. For emotional distress to Keri Satterlee in the sum of $100,000.00; 25 7. For Plaintiff's costs and disbursements; 26 Page 8 - AMENDED COMPLAINT • GO$DON W. STEWART, P.C. ATroRNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-6875 • r~ LJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8. For such other and further relief as the court may deem proper. DATED this Lam! rZ of July, 2000. Page 9 - AMENDED COMPLAINT • 6ORDON W. STEWART, P.C. ATTORNEY AT LAW 1195 NW Wall Street Bend, Oregon 97701 Telephone (541) 317-8404 • Fax (541) 382-8875 CERTIFIED TRUE COPIES GORDON W. STEWART, OSB 74315 Attorney for CERTIFICATE OF SERVICE I, GORDON W. STEWART, hereby certify that the foregoing copy of the Amended Complaint is a true copy of the original document filed herein. I, GORDON W. STEWART, hereby certify that on this date, I served a true copy of the foregoing Amended Complaint by the method indicated below, and addressed to each of the following individuals: Ronald E. Bailey Bullivant, Houser, Bailey, P.C. Attorneys at Law 300 Pioneer Tower 888 SW Fifth Avenue Portland, OR 97204-2089 0 XX U. S. Mail, Postage Prepaid Hand Delivered Overnight Mail XX Facsimile Transmission DATED: July 12, 2000. Attorney for Plaintiff GORDON W. STEWART Wall Street Law Offices 1195 NW Wall Street Bend, OR 97701 (541) 317-8404 GOFWN W. STEWART, OSB 74315 . Page 1 - CERTIFIED TRUE COPIES/CERTIFICATE OF SERVICE j 1r '3 R 3 S'31- 'J5 4 5 IN THE CIRCUIT COURT OF THE STATE OF OREGON 6 . FOR THE COUNTY OF JEFFERSON 7 SEAN SATTERLEE and KERI ) SATTERLEE, husband and wife; and ) 8 DOYLE SATTERLEE and DELORIS ) Case No. 99CV-0039 SATTERLEE, husband and wife, ) 9 ) Plaintiffs, ) 10 ) SUBSTITUTION OF COUNSEL V. ) 11 ) 2-R EQUIPMENT, LLC, an Oregon ) 12 Limited Liability Company; JACK ) ROBINSON & SONS, INC., an Oregon ) 13 corporation; RONALD ROBINSON, SR., ) an individual; RON ROBINSON, JR., an ) 14 individual, ) 18 15 Defendants. ) 16 ) 17 Michael J. Francis hereby provides notice that Gordon W. Stewart and the firm of 18 Gordon W. Stewart, P.C., 1195 N.W. Wall Street, Bend, Oregon 97701, (541) 317-8404, 19 have been substituted as counsel for plaintiffs in the place of Michael J. Francis and the firm 20 of Dunn Carney Allen Higgins & Tongue LLP. 21 DATED this day of November, 1999. 22 DUNN CARNEY ALLEN HIGGINS & TONGUE LLP 23 24 By: ~~u - Michael J. Francis, OSB No. 79228 25 Former Attorneys for Plaintiffs 26 !Page 1 DUNN CARNEY ALLEN HIGGINS & TONGUE LLP ATTORNEYS AT LAW 851 S.W. 6TH, SUITE 1500 PORTLAND, OREGON 97204 A 1-41 SUBSTITUTION OF COUNSEL ::ODMA\GR PW 1SE\DUNN-CAR. POST 1. CLIENTS:57073.1 .7~~1-19' 1 CERTIFICATE OF SERVICE -2 I hereby certify that the foregoing SUBSTITUTION OF COUNSEL was served on: 3 Ronald E. Bailey " FAX: 295-0915 By hand delivery Bullivant Houser Bailey x By first class mail 4 888 S. W. Fifth Avenue, Suite 300 By certified mail 5 Portland, OR 97204-2089 By overnight mail Of Attorneys for Defendants Y, By facsimile transmission 6 Gordon W. Stewart FAX: 541-3 82-6 8 7 5 X By hand delivery 7 Gordon W. Stewart, P.C.' By first class mail 1195 N.W. Wall Street By certified mail 8 Bend, Oregon 97701 By overnight mail New Attorneys for Plaintiffs X By facsimile transmission 9 10 11 With first class postage prepaid and depo sited in Portland, OR. 12 November 1999. 13 14 DUNN CARNEY ALLEN HIGGINS & TONGU LLP 15 16 By: Michael J. Francis, OSB No. 79 28 17 Attorneys for Plaintiffs 18 19 21 22 23 24 25 26 • Page 2 SUBSTITUTION OF COUNSEL ::ODMA\GRPW 1SE\DUNN-CAR. POST I.CLIENTS:57073.1 DUNN CARNEY ALLEN HIGGINS & TONGUE LLP ATTORNEYS AT LAW 851 S.W. 6TH, SUITE 1500 PORTLAND, OREGON 97204 AFFIDAVIT OF SERVICE STATE OF OREGON Jefferson County Circuit Court Case Number: 99CV0039 - 'r) SEAN SATTERLEE vs. 2-R EQUIPMENT LLC PLAINTIFF: DEFENDANT: I hereby certify that on THURSDAY, AUGUST 19, 1999 at 4:53 PM, I served RONALD ROBINSON SR with the document(s): SUMMONS, COMPLAINT, PRETRIAL NOTICE. Ely leaving with: RON ROBINSON JR. OWNER„ who is also a co-tenant, over the age of fourteen, and resides at the defendant's place of abode. Said service was effected and served at: 63055 OB RILEY RD., BEND, OR 97701. I, MITCH JALBERT, am a competent person over the age of eighteen, a resident of the State of Oregon, not a party to nor an officer, director or employee of, nor an attorney for any party, corporate or otherwise, and knew that RONALD ROBINSON SR is the identical RONALD ROBINSON SR named in the aforementioned action. STATE OF OREGON COUNTY OF DESCHUTES MITCH JALBERT, P CESS SE VER TRI-COUNTY LEGAL PROCESS SERVICE P O BOX 1600 REDMOND, OR, 97756-0511 (541) 317-5680, (541) 317-0143 * *k Subscribed and sworn to before me, on THURSDAY, . AUGUST 19, 1999 - )4- NOT UBLIC OF OREGON OFFICIAL SE/,L J VIC GINNIS k. NOTgav PUBLIC-OREGON COMMISSION NO. ;126056 MY COMMISSION EX IES,"UG. 9, 2003 leTranserv Systems Inc. TCL Job Number: 5254 L M • : i In the Circuit Court of the State of Oregon For the County of __JEFFERSON Sean Satt_erlee and Keri Satterlee, husband le Satterlee and Deloris I. and wife; Do------------------------------------------------------- Satt erlee_,__husband_and_wife----------------- plaintiff(s), . vs. 2-R Equipment, LLC; Jack obinson s, Sons, 9 C V 003q Inc.; Ronald Robinson Case No. 1_________________L_____--__-- Sr._; Ron Robinson,JR. SUMMONS Defendant(s). To Ron_ 9 Robinson, Jr. R` o--a- . ck s on 2 02 7 - - ---Bend , --OR 9 7 7 01 Defendant You are hereby required to appear and defend the complaint filed against you in the entitled action within thirty (30) days from the date of service of this summons upon you, and in case of y ur f ilure t do s or ant thereof, plaintiff(s) will apply to the court for the relief demanded in the complaint. NOTICE TO THE DEFENDANT: READ THESE PAPERS CAREFULLY! - - &~6 IGN E O NEY / AU OR INTIFF You must "appear" in this case or the other side will win automatically. To "appear" you must file with the court a legal paper called a "motion" or "answer." M1C hae 1 J . F ranC l s _ OSB NO . 7 - 2 2 $ ATTORNEY'S /AUTHOR'S NAME TYPED OR The "motion" or "answer" must be given to the court clerk or administrator within PRINTED) BAR NO. ( (IF ANY) 30 days along with the required filing fee. It must be in proper form and have $ 5 l S W 6 th, # 15 0 0 ;proof of service on the plaintiff's attorney or, if the plaintiff does not have an attor- ney, proof of, service upon the plaintiff. ADDRESS If you have any questions, you should see an attorney immediately. If you Portland-,--OR _ 97204 4 (503)224-6440 need help in finding an attorney, you may call the Oregon State Bar's Lawyer cITY STATE - ZIP-- -----------PHONE (Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636. TRIAL ATTORNEY IF OTHER THAN A80VE (TYPED OR PRINTF,D) BAR NO. STATE OF OREGON, County of _Mul-tnoaah-------------------------------- ) ss. I, the undersigned attorney of record for the plaintiff, certify that the foregoing is an exact and complete copy of the original summons in the above entitled action. / ---l R Michael ~TTO r"ranclS FOR PLAINTIFF(S) r0 THE OFFICER OR OTHER PERSON SERVING THIS SUMMONS: You are hereby d; ected to serve a true copy of this sum- mons, together with a true copy of the complaint mentioned therein, upon th in ividual(s) a legal entity(ies) to whom or which this summons is directed, and to make your proof of service on the revert h eof or u se arate similar document which you shall attach hereto. - - ATTORNEY(S) FOR PLAINTIFF(S) . DUNN, CARNEY, ALLEN, HIGGINS & TONGUE ichael J. Francis ATTORNEYS AT LAW 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 Telephone (503) 224-6440 FORM No. 190 - SUMMONS 01998 F'.age 1 - SUMMONS. Stevens-Ness Law Publishing Go. Portland, OR 97204 NO AFFIDAVIT OF SERVICE r~ LJ SEAN SATTERLEE vs. 2-R EQUIPMENT LLC STATE OF OREGON Jefferson County Circuit Court Case Number: 99CV0039 PLAINTIFF: DEFENDANT: I hereby certify that on THURSDAY, AUGUST 19, 1999 at 3:47 PM, I served 2-R EQUIPMENT LLC with the document(s): SUMMONS, COMPLAINT, PRETRIAL NOTICE. By personally serving AMBER KIRK, SECRETARY at 2-R EQUIPMENT LLC Reg. Agent Neil Bryant: 40 NW Greenwood, Bend, OR 97709. I, PAUL HELIKSON, am a competent person over the age of eighteen, a resident of the State of Oregon., not a party to nor an officer, director or employee of, nor an attorney for any party, corporate or otherwise, and knew that 2-R EQUIPMENT LLC is the identical 2-R EQUIPMENT LLC named in the aforementioned action. • STATE OF OREGON COUNTY OF DESCHUTES PAUL L ON, PROCESS SERVER TRI-C UNTY LEGAL PROCESS SERVICE P O BOX 1600 REDMOND, OR, 97756-0511 (541) 317-5680, (541) 317-0143 Transerv Systems Inc. of L Job Number: 5251 Subscribed and sworn to before me, on THURSDAY, AUGUST 19, 1999, BLIC OF OREGON OFFICIAL SEAL J MC GINNIS NOTARY PUBLIC-OREGON COMMISSION NO. 326056 MY COMMISSION EXPIRES AUG. 9, 2003 C~FIlVF- j*; i*I AFFIDAVIT OF MAILING STATE OF OREGON ) ss. County of Multnomah ) Case # 99CV-0039 I, the undersigned, being first duly sworn, depose and say that I mailed a true copy of Summons, Complaint and Pretrial Notice to NEIL R. BRYANT, Registered Agent, for 2-R Equipment, L.L.C. at 40 NW Greenwood, Bend, OR 97709 together with a statement of the date, time, place and whom substituted service was made on; by placing said documents in a sealed envelope with first class postage thereon fully prepaid, and deposited in the United States mail on September 1, 1999. T esa Dean TRANSERV LEGAL PROCESS SERVICE 310 S.W. Fourth Ave., Suite 200 Portland, OR 97204 (503)299-6238 SUBSCRIBED AND SWORN to before me this September 1 , 1999 . pli W~tj OFFICIAL SEAL MITCH INiRTH SSIO,~ raC?. tivw,s'1u t r•- , ~1 In the Circuit Court of the State of Oregon - - For the County of ___J_LFFERS0_N ___S~an_S~tterl~e _~n~l_Ke i~_Eatt~r ae~__h-sband ___,and_Wife_;___Dszyl_e__SatterJ_ee__arid- _neloris__I.______ Satt-esle_e_F__husbncl--and - Haifa_________________ Plaintiff(s), vs. ~-R_EQua ~mentt__I,LO__~__~Jack _Robinson _ &__Sons, Case No. 9?_Ck~ao_q - - Ine.,_R__A9na1d__Rob_inson-__ _Sr_. ~___Ron__Robinson~JR. SUMMONS Defendant(s). To 2-R_Ec Tei1__R.__Bry_ant,__ Registered Agent - 44__L`I~hl___~e~nwgod------------- Ba11d=--QA--9.7.79 9 Defendant You are hereby required to appear and defend the complaint file ag 'nst you in th a ove entitled action within thirty (30) days from the date of service of this summons upon you, and in case of our ailur o do o, want thereof, plaintiff(s) will apply to the court for the relief demanded in the complaint. NOTICE TO THE DEFENDANT: READ THESE PAPERS CAREFULLY! - NATURE ATTORNEY PLAINTIFF S OF / OR FOR You must "appear" in this case or the other side will win automatically. To "appear" you must file with the court a legal paper called a "motion" or "answer." Michael _ J.Francis 1 OS B NO. 7 9 2 2 8 ATTOR.NEY'S % AUTHOR'S NAME (TYPED OFi PRINTED) NF NO. (IF ANY) The "motion" or "answer" must be given to the court clerk or administrator within E 30 days along with the required filing fee. It must be in proper form and have 851 SW 6th # 15 0 proof of service on the plaintiff's attorney or, if the plaintiff does not have an attor- ADDRESS ney, proof of service upon the plaintiff. If you have any questions, you should see an attorney immediately. If you P ort l and,_ OR_-9 7-2-0 4-----(5- -q)_224-6440 0 nee help in finding an attorney, you may call the Oregon State Bar's,, awyer CITY STATE ZIP --------PHONE Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636. BAR NO. TRIAL ATTORNEY IF OTHER THAN ABOVE (TYPED OR PRINTED) ATE OF OREGON, County of _ Mltnomah________________ ss. I, the undersigned attorney of record for the plaintiff, certify that the foregoing is an exact and complete copy of the original summons in the above entitled action. ATTORNEY OF RECORD FOR PLAINTIFF(S) Michael J. Francis 'TO THE OFFICER OR OTHER PERSON SERVING THIS SUMMAr e hereby it ed to serve a true copy of this sum- mons, together with a true copy of the complaint mentioned therein, uvid al of r legal entity(ies) to whom or whi ch this summons is directed, and to make your proof of service on the of r a eparate similar document which you shall attach hereto. NEY(SI FOR PLAINTIFF(S) DUNN, CARNEY, ALLEN, HIGGINS & TONGUE J. Francis ATTORNEYS AT LAW 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 Telephone (503) 224-6440 FORM No. 190 -SUMMONS 01998 Fags 1 - SUMMONS. Stevens-Ness Law Publishing Co. Portland, OR 97204 NO AFFIDAVIT OF SERVICE 0- STATE OF OREGON Jefferson County Circuit Court Case Number: 99CV0039 PLAINTIFF: SEAN SATTERLEE VS. ?-R EQUIPMENT LLC DEFENDANT: I :hereby certify that on THURSDAY, AUGUST 19, 1999 at 4:53 PM, I served JACK ROBINSON AND SONS INC. with the document(s): SUMMONS, COMPLAINT, PRETRIAL NOTICE. By personally serving RON ROBINSON JR., OWNER at JACK ROBINSON AND SONS INC. Reg. Agent Ronald Robinson Sr.: 63055 OB Riley Rd., Bend, OR 97701. 4 rrnd.. I, MITCH JALBERT, am a competent person over the age of eighteen, a resident of the State of Oregon, not a party to nor an officer, director or employee of, nor an attorney for any party, corporate or otherwise, and knew that JACK •R.OBINSON AND SONS INC. is the identical JACK ROBINSON AND SONS INC. named in the aforementioned action. STATE OF OREGON COUNTY OFDESCHUTES Transerv Systems Inc. TC:L Job Number: 5253 MITCHJALB=EGALPROCESS SERVER TRI-COUNTY SERVICE P O BOX 1600 REDMOND, OR, 97756-0511 (541) 317-5680, (541) 317-0143 Subscribed and sworn to before me, on THURSDAY, AUGUST 19, 1999, ~i~~C6S95°~ . NOTAVY/lbUBLIC OF OREGON COMMISSION NO. 326058 OFFICIAL SEAL J MC GINNIS NOTARY PUBLIC-OREGON MY COMMISSION EXPIRES AUG. 9, 2003 AFFIDAVIT OF MAILING • STATE OF OREGON ) ss. County of Multnomah ) Case # 99CV-0039 U I, the undersigned, being first duly sworn,.depose and say that I mailed a true copy of Summons, Complaint and Pretrial Notice to RONALD J. ROBINSON, SR. at 63055 OB Riley Rd, Bend, OR 97701. together with a statement of the date, time, place and whom substituted service was made on; by placing said documents in a sealed envelope with first class postage thereon fully prepaid, and deposited in the United States mail on September 1, 1999. ~"La- Teresa Dean TRANSERV LEGAL PROCESS SERVICE 310 S.W. Fourth Ave., Suite 200 Portland, OR 97204 (503)299-6238 SUBSCRIBED AND SWORN to before me this September 1 , 1 999 . ll'v~ti OFFICIAL SEAL HcON iu4~i ~'~_'!t!Ii Hat} j~~)i F1 ~``~~~)j~~T~ll i:1. L. C' 41 In the Circuit Court of the State of Oregon For the County of __JEFFERSON Sean_ Satterlee and Keri Satterlee, husband -ariE wif, e;--Doyle--Satterle---- rid--Deloris-1-.------- Satterlee; fiusband and` -wife----------------------------- Plaintiff(s), vs. i 2- R Equipment, LLC; Jack Robinson & Sons, q e Case No ~ Ine . ; RonaZT- Robinson r . Rori-_Robinson,-of R. No. SUMMONS Defendant(s). To Ronald Robinson, Sr. 16-6 S . E . Ramsay Road or at business -address --63 055- 6.-B -WIIey -Rbad----" OR-977-01 Bend---- 2-------------------------------------------------------------------------------------------------------- Defendant You You are hereby required to appear and defend the complaint filed agai st you in jor ntitled action within thirty (30) days from the date of service of this summons upon you, and in case of y ur lure o ant thereof, plaintiff(s) will apply to the court for the relief demanded in the complaint. f / NOTICE TO THE DEFENDANT: READ THESE PAPERS CAREFULLY! v Wv SIG ATURE OF ATTORNEY / AUTHO FOR PLAINTIFF You must "appear" in this case or the other side will win automatically. To Michael J. Francis OSB NO. 79228 "appear" you must file with the court a legal paper called a "motion" or "answer." _ _ _ _ The "motion" or "answer" must be given to the court clerk or administrator within ATTORNEY'S / AUTHOR'S NAME (TYPED OR PRINTED) BAR NO. (IF ANY) 30 days along with the required filing fee. It must be in proper form and have 851 SW 6th t #1500 proof of service on the plaintiff's attorney or, if the plaintiff does not have an attor- ney, proof of service upon the plaintiff. ADDRESS If you have any questions, you should see an attorney immediately. If you Portland, OR 97204 (503)224-6440 need help in finding an attorney, you may call the Oregon State Bar's Lawyer cln STATE------ ZIP-- - ---------PHONE - Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636. TRIAL ATTORNEY IF OTHER THAN ABOVE (TYPED OR PRINTED) BAR NO. STATE OF OREGON, County of Mu tnomah______________________________) ss. I, the undersigned attorney of record for the plaintiff, certify that the foregoing is an exact and complete copy of the original summons in the above entitled action. ATT NEY OF RECORD FOR PLAINTIFF(S) Michael J. Francis TO THE OFFICER OR OTHER PERSON SERVING THIS SUMMONSAYouare reby directed to erve a true copy of this sum- mons, t ogether with a true copy of the complaint mentioned therein, ul(s) or other a entity(ies) to whom or which this summons is directed, and to make your proof of service on the ru n a s arat simil ument which you shall attach hereto. TTOR PFF(DUNN, CARNEY, ALLEN, HIGGINS & TONGUE MFrancis ATTORNEYS AT LAW 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 Telephone (503) 224-6440 Page 1 - SUMMONS. FORM No. 190 - SUMMONS 01998 Stevens-Ness Law Publishing Co. Portland, OR 97204 NO r AFFIDAVIT OF SERVICE STATE OF OREGON • Jefferson County Circuit Court Case Number: 99CV0039 PLAINTIFF: SEAN SATTERLEE vs 2-R EQUIPMENT LLC DEFENDANT: I hereby certify that on THURSDAY, AUGUST 19, 1999 at 4:53 PM, I served JACK ROBINSON AND SONS INC. with the document(s): SUMMONS, COMPLAINT, PRETRIAL NOTICE. By personally serving RON ROBINSON JR., OWNER at JACK ROBINSON AND SONS INC. Reg. Agent Ronald Robinson Sr.: 63055 OB Riley Rd., Bend, OR 97701. f 27 d.. I, MITCH JALBERT, am a competent person over the age of eighteen, a resident of the State of Oregon, not a party to •nor an officer, director or employee of, nor an attorney for any party, corporate or otherwise, and knew that JACK ROBINSON AND SONS INC. is the identical JACK ROBINSON AND SONS INC. named.in the aforementioned action. STATE OF OREGON COUNTY OF DESCHUTES MITCH JALBER SERVER TRI-COUNTY EGAL PROCESS SERVICE P O BOX 1600 REDMOND, OR, 97756-0511 (541) 317-5680, (541) 317-0143 OT,anserv Systems Inc. TCL Job Number: 5253 Subscribed and sworn to before me, on THURSDAY, AUGUST 19, 1999, .Otr~yr~ ..ors/GW,r \PR~CESSS~ NOT#FXY/rUBLIC OF OREGON OFFICIAL SEAL J MC GINNIS NOTARY PUBLIC-OREGON COMMISSION NO. 326056 MY COMMISSION EXPIRES AUG. 9, 2003 • AFFIDAVIT OF MAILING - STATE OF OREGON ) r ss. County of Multnomah ) Case # 99CV-0039 I, the undersigned, being first duly sworn, depose and say that I mailed a true copy of Summons, Complaint and Pretrial Notice to RONALD J. ROBINSON, SR., Registered Agent, for Jack Robinson & Sons, Inc. at 63055 OB Riley Rd, Bend, OR together with a statement of the substituted service was made on; • sealed envelope with first class and deposited in the United Stat, 97701. date, time, place and whom by placing said documents in a postage thereon fully prepaid, E~s mail on September 1, 1999. eresa Dean TRANSERV LEGAL PROCESS SERVICE 310 S.W. Fourth Ave., Suite 200 Portland, OR 97204 (503)299-6238 SUBSCRIBED AND SWORN to before me this September 1 , 1 999 . M~W'j • ' O FF C E _ II a AI IS II ggg qEE / AL 1\ l 1 ~ ~ 4 y / \ A~~, $ },,y.(~< apt';r, t _ In the Circuit Court of the State of Oregon For the County of JEFFERSON - Sean Satt_e_rlee and Keri Satterlee husband and wife; Doyle Satterlee nd _ Deloris I--------- -------------------------b -----------------r--------------------------------- Sat Ii-r-1 , husand and wife - - - - - - - Plaintiff(s), vs. 2-R Equipment,__LLC Jack Robin son_&_-Sons , _ Case No. 9-9 e 1----InQ Inc._;--Ronald Robinson,__Sr. ; Ron Robinson,Jr. - - - - - SUMMONS Defendant(s). ToJack_Robinson & Sons, Inc-. c/o Ronald J. Robinson, Sr., Registered Agent, ___63055O.B.WileyRoad____________ Bend, __OR _97701 - - • You are hereby required to appear and defend the complaint filed ainst you i the days from the date of service of this summons upon you, and in case of yot r I ur e toso, to the court for the relief demanded in the complaint. ' NOTICE TO THE DEFENDANT: READ THESE PAPERS CAREFULLY! You must "appear" in this case or the other side will win automatically. To "appear' you must file with the court a legal paper called a "motion" or "answer." The "motion" or "answer" must be given to the court clerk or administrator within 30 days along with the required filing fee. It must be in proper form and have proof of service on the plaintiff's attorney or, if the plaintiff does not have an attor- ney, proof of service upon the plaintiff. If you have any questions, you should see an attorney immediately. If you need help in finding an attorney, you may call the Oregon State Bar's Lawyer Referral Service at (503) 684-3763 or toll-free in Oregon at (800) 452-7636. _ Defendant action within thirty (30) of, plaintiff(s) will apply Michael J__. Fr_a_n__c_i_s, 0_S_B__ N__ o_._ 79_2_2_8__ ATTORNEY'S / AUTHOR'S NAME (TYPED OR PRINTED) BAR NO. (IF ANY) 851__SW -6th, #15_ 00 ADDRESS Portland, OR 97204 (.503)224-6440 CITY STATE ZIP PHONE TRIAL ATTORNEY IF OTHER THAN ABOVE (TYPED OR PRINTED) 8AR NO. STATE OF OREGON, County of -----Multnomah-- ss. I, the undersigned attorney of record for the plaintiff, certify that the foregoing is an exact and complete copy of the original summons in the above entitled action. --------------Z _5------------ A ORNEY OF RECORD FOR PLAINTIFF(S) Michael J. Francis TO THE OFFICER OR OTHER PERSON SERVING THIS SUMMONS: You are hereby dire ted to serve a true copy of this sum- mons, together with a true copy of the complaint mentioned therein, upon t e in ividua ) or regal entity(ies) to whom or which this summons is directed, and to make your proof of service on the rever e reof o on a arat lar document which you :;hall attach hereto. ATTORN Y(S) FOR PLAINTIFF(S) DUNN, CARNEY, ALLEN, HIGGINS & TONGUE Michael J. Francis ATTORNEYS AT LAW 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 Telephone (503) 224.6440 Page 1 - SUMMONS. FORM No. 190 - SUMMONS m 1998 Stevens-Ness Law Publishing Co. Portland, OR 97204 NO 1 JEFEETECp • SON ur°dT r 2 99~AUG l All /1 02 3 eta OT STq r . our; ; 4 OREGON 5 IN THE CIRCUIT COURT OF THE STATE OF OREGON 6 FOR THE COUNTY OF JEFFERSON 7 SEAN SATTERLEE and KERI SATTERLEE, husband and wife; and 8 DOYLE SATTERLEE and DELORIS I. SATTERLEE, husband and wife, 9 Plaintiffs, 10 V. 11 2-R EQUIPMENT, LLC, an Oregon 12 Limited Liability Company; JACK ROBINSON & SONS, INC., an Oregon 13 corporation; RONALD ROBINSON, SR., an individual; RON ROBINSON, JR., an 14 individual;, 15 16 17 18 19 Defendants. Plaintiffs allege: 1. Case No. q 7 a,/- 0 v`--5 ? COMP AINT (TRESPASS; ABNORMALLY DANGEROUS ACTIVITY: NEGLIGENCE) JURY TRIAL DEMAND CLAIM NOT SUBJECT TO MANDATORY ARBITRATION At all material times, plaintiffs were and are residents of Madras, Jefferson County, 20 Oregon. 21 2. 22 At all material times, defendant 2-R Equipment, LLC is an Oregon Limited Liability 23 Company, had a principal place of business in Bend, Deschutes County, Oregon, and operated 24 a rock quarry known as Willow Creek Quarry, located in Jefferson County., Oregon, the site 25 of which immediately adjoined plaintiffs' residence as described in paragraph 5. 0 26 Page 1 COMPLAINT ODMA\GRPWISE\DUNN-CAR. POST I. CLIENTS:40019.1 Dunn, Carney, Allen, Higgins & Tongue Attorneys at Law 851 SW Sixth Avenue, Suite 1500 Portland, OR 97204-1357 ,0 lv e , ~ -7 yam(` (503) 224-6440 • 1 3. 2 At all material times, defendant Jack Robinson & Sons, Inc. is an Oregon corporation, 3 and has a principal place of business in Bend, Deschutes County, Oregon. 4 4. 5 At all material times, defendants Ronald Robinson, Sr. and Ron Robinson, Jr. are 6 residents of Deschutes County, Oregon, and are the owners and managers of 2-R Equipment 7 LLC. 8 5. 9 At all material times, plaintiffs Sean and Keri Satterlee were, and still are, the owners 10 and possessors of certain real property located at 634 N.W. Glass Drive, Madras, Jefferson 11 County, Oregon. Plaintiffs Doyle and Deloris Satterlee were, and still are, the owners and 12 possessors of certain real property located at 720 N.W. Glass Drive, Madras, Jefferson 13 County, Oregon. • 14 6. 15 Plaintiffs Sean and Keri Satterlee's above-described real property consists of improved 16 farm land on which are constructed a quonset hut, a dwelling house, and other farm 17 structures. At all relevant times the house was and is plaintiffs' primary residence. 18 7 19 Plaintiffs Doyle and Deloris Satterlee's above-described real property consists of 20 improved farm land on which is constructed a dwelling house. At all relevant times the house 21 was and is plaintiffs' primary residence. 22 8. 23 On May 10, 1999, without providing prior notice to plaintiffs, defendants conducted 24 blasting operations at the quarry. During the course of the blasting operations, a blast of such 25 force and violence was discharged that many rocks, including some weighing as much as 65 • 26 pounds landed throughout plaintiffs' property, and around and in the immediate vicinity of the Page 2 COMPLAINT ::ODMA\GRPW 1SE\DUNN-CAR. POST 1. CLIENTS:40019.1 Dunn, Carney, Allen, Higgins & Tongue Attorneys at Law 851 SW Sixth Avenue, Suite 1500 Portland, OR 97204-1357 (503) 224-6440 • I residence of plaintiffs Sean and Keri Satterlee. 2 9. 3 Plaintiff Keri Satterlee saw the blast conducted by defendants. Plaintiff Keri Satterlee 4 felt the blast and the resulting shock wave from the blast, and saw a large plume of dust and 5 rock from the blast as it enveloped plaintiffs' home and property adjacent to defendants' 6 quarry. 7 10. 8 At the time of the blast, plaintiff Keri Satterlee was pregnant. During and after the 9 blast, and as a result of defendants' blasting activities, plaintiff Keri Satterlee experienced 10 severe emotional distress, and subsequently suffered a miscarried pregnancy on June 15, 11 1999. 12 FIRST CLAIM FOR RELIEF 13 (Trespass by Blasting) • 14 11. 15 Plaintiffs reallege paragraphs 1 through 7. 16 12. 17 As a direct and proximate result of the blasting, defendants committed a trespass on 18 the real property described above, and damaged said real property in the following 19 particulars: 20 1. The interior sheet rock and walls of the dwelling house and the cement floor of 21 the quonset but of plaintiffs' Sean and Keri Satterlee were cracked and damaged; and 22 2. Large amounts of rock debris were deposited on plaintiffs' property. 23 13. 24 By reason of the above fact d r- d s, e n ants are liable to plaintiffs for the full cost of 25 repair and removal of property damage as set forth above, in an amount to be determined at • 26 trial. Page 3 COMPLAINT ::ODMA\GRP W ISE\DUNN-CAR. POST 1. CLIENTS:40019.1 Dunn, Carney, Allen, Higgins & Tongue Attorneys at Law 851 SW Sixth Avenue, Suite 1500 Portland, OR 97204-1357 (503) 224-6440 . 1 SECOND CLAIM FOR RELIEF 2 (Trespass) 3 14. 4 Plaintiffs reallege paragraphs 1 through 5 and 7. 5 15. 6 During the course of defendants' operations at the Willow Creek Quarry, defendants 7 intentionally entered onto plaintiffs Doyle and Deloris Satterlee's property and leveled part of 8 plaintiffs' property, removing substantial soil, shrubs and trees in the process, for the purpose 9 of constructing a road or platform to facilitate the blasting and removal of rock from the 10 quarry. 11 16. 12 Defendants did not seek, and plaintiffs Doyle and Deloris Satterlee did not consent to, 13 defendants' entry onto their property, the removal of soil, shrubs and trees, and the changing • 14 of the physical characteristics of the property. 15 17. 16 As a direct and proximate result of defendants' conduct, plaintiffs Doyle and Deloris 17 Satterlee have been damaged in an amount to be proved at trial, but in excess of $50,000. 18 THIRD CLAIM FOR RELIEF 19 (Strict Liability: Abnormally Dangerous Activity) 20 18. 21 Plaintiffs reallege paragraphs 1 through 10. 22 19. 23 Defendants' blasting operation on May 10, 1999 was an abnormally dangerous activity 24 in that it was located near plaintiffs and their property, posed a risk of grave harm to plaintiffs 25 and their property, and did cause damage to plaintiffs' property and severe emotional distress • 26 to plaintiffs, in that the plaintiffs feared and continue to fear for the safety of their families, Page 4 COMPLAINT ODMAMP W ISMD UN N -CAR. POST I . CLIENTS:40019.1 Dunn, Carney, Allen, Higgins & Tongue Attorneys at Law 851 SW Sixth Avenue, Suite 1500 Portland, OR 97204-1357 (503) 224-6440 • 1 their pets, their land, their well-being, and their homes, based upon the past and future 2 operations of defendants. 3 20. 4 As a direct result of defendants' acts, plaintiffs have sustained damages in the 5 following particulars in an amount to be determined at trial, but more than $50,000: 6 1. Cost to repair damage to house and structures; 7 2. Cost to remove rocks from the property; .8 3. Cost to restore property; 9 3. Severe emotional distress to plaintiffs, and each of them. 10 FOURTH CLAIM FOR RELIEF 11 (Negligence) 12 21. 13 Plaintiffs reallege paragraphs 1 through 10. • 14 22. 15 Defendants owed plaintiffs a duty to exercise reasonable care for plaintiffs' safety. 16 Defendants breached that duty in that they failed to notify plaintiffs of the blast before it 17 occurred and failed to take reasonable precautions to avoid danger or damage to plaintiffs and 18 their property. ' 19 23. 20 Defendants knew or should have known that their actions created an unreasonable risk 21 of harm to persons such as plaintiffs and their property, and as a direct result of their actions, 22 plaintiffs' property was damaged as set forth herein and plaintiff Keri Satterlee suffered severe 23 emotional and physical distress, which was a contributing factor in her subsequent pregnancy 24 miscarriage. 25 / / / • 26 / / / Pa ge 5 COMPLAINT ::ODMA\GRPW ISE\DUNN-CAR.POST 1. CLIENTS:40019.1 Dunn, Carney, Allen, Higgins & Tongue Attorneys at Law 851 SW Sixth Avenue, Suite 1500 Portland, OR 97204-1357 (503) 224-6440 • 1 24. 2 As a direct result of defendants' actions, plaintiffs have sustained damages in the 3 following particulars in an amount to be determined at trial, but more than $50,000: 4 1. Cost to repair damage to house and structures; 5 2. Cost to remove rocks from the property; 6 3. Cost to restore property; 7 4. Severe emotional distress to plaintiff Keri Satterlee. 8 WHEREFORE, on each claim for relief, plaintiffs request judgment against 9 defendants, and each of them, as follows: 10 1. For damages in an amount in excess of $50,000, such amount to be determined 11 at trial; 12 2. For plaintiffs' costs and disbursements; 13 3. For such other and further relief as the court may deem proper. • 14 DATED this day of August, 1999. 15 DUNN, CARNEY, ALLEN, HIGGINS & TONGUE 16 17 18 Michael J. Franci , OSB No. 79228 Gayle K. 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E o N w m ~ C c i m u 0 w o N c i ~ m m o E U io c CO) o CO U c m ° w _ CL c to 0 w L) Z <O o Z a Z p E vz o v U E o~ E o d c 3:o U 4) m U O ° v w 3 m U 0o o U? O 'U O m c o o N O _N E o o N Z C z O cm ? cc H CD Z O CI 0 Z; N O o s 0 r ' c c m C7 y > o U H N L Z 2 m m O m O Q (U O a) m -o 0 M c6 ' 0 I V w a r y c r L) E c o v Z a) . CD T O) a O L a w Q Q O ~c .V N, L C, 0 H F- Z u~ m H Z U Cn U- p Bend.com - DEQ fines Jack Robinson & Sons $3,600 n U Company will be performing cleanup actions to attain compliance From Bend.com news sources HOME II Mark D. Weers & Tabitha Dahl • "Your Friends in Real Estate" R E A L T O R S (541) 33G-8520 'Wbendcom NEWS I ARCHIVE I WEATHER I CALENDAR FORUMS I PHOTO GALLERY CLASSIFIEDS I JOBS I CARS I RENTALS SEARCH: Bend.com Web Goksle I ~ h I, T t Ads by Google DEQ fines Jack Robinson & Sons $3,600 LoaCabin Vacation Rental Central Oregon Sisters Black Butte Stunning Luxury Log Home Rental www.sisters-logcabin.com Bend Hotels Discount Hotels in Bend Save up to 70%. Compare • Prices! Oregon-DiscountHotels.com $300/Hr in Bend? 21 Side-by-side Comparisons of Fun Jobs Paying Up to $300/Hour. FunJobsReview.com Bend Hotel Rates Compare cheap hotel rates from top travel sites at Calibex! www.calibex.com Posted: Tuesday, April 5, 2005 9:46 AM The Oregon Department of Environmental Quality (DEQ) has issued a $3,600 penalty against Jack Robinson & Sons, Inc. (JRS), of Bend, the operator of a heavy equipment maintenance and fueling facility, for violations related to the company's mismanagement of used oil, anti-freeze and fuels at its facility located at 63055 O.B. Riley Road in Bend. On Sept. 28, 2004 DEQ staff conducted a hazardous waste compliance inspection. Violations identified during the inspection include: Protect AtnedcA's S r Medicare may cut pays to doctors by aver You can help America's Page 1 of 2 Email Congress Today! Storing used oil in tanks or containers that were open and not properly labeled; Failing to immediately clean up spills of oil or hazardous materials; Failing to evaluate whether wastes generated at the property were hazardous waste: Failing to register a dry well with. DEQ's Underground Injection Control (UIC) well pro Oregon used oil regulations require facilities to store used oil in covered containers t( releases to the environment. During the inspection, DEQ observed oil staining and p( on the ground around open containers of used oil, around used oil tanks and around tanks. Oregon law requires facility owners to immediately clean up spills of hazardous mate Coffee Exposed properly dispose of the contaminated media and debris and, if necessary, report the A shocking secret that big This requirement helps ensure that contamination from spills or releases is minimize( coffee co's are afraid to protect the groundwater from contamination. The spills observed at the property, parl tell. observed around the diesel fuel tanks and the used oil storage area, appeared to ha\ www.thecoffeefool.com a long period of time and were not cleaned up. After receiving a notice in October 2004 citing the violations, the company promptly n work plan to clean up the property and conducted corrective actions to come into con • actions included properly labeling all used oil, properly registering and closing an ons regulated by DEQ as an underground injection control well and entering into a volunt, agreement. The company's cooperation and response in correcting the violations wa: http://www.bend.com/news/ar-View.php?ar-id=22023 8/11/2005 Bend.com - DEQ fines Jack Robinson & Sons $3,600 Page 2 of 2 account in calculating the penalty. • JRS has indicated it will propose an environmental enhancement project, also knowr Supplemental Environmental Project (SEP), to mitigate some of the civil penalty. The likely to be approved by DEQ result in the prevention/reduction of pollution, or projec benefit the community and its environment. They must not create a market advantag, proponent and cannot be funded by state or federal government loans, contracts or c DEQ officials said the company has been proactive in correcting the violations and cc working with DEQ. OLDER INEWER FREE Dinner for Two at ERA slid HOOTERS.,,,, to i. , SEARCH: Bend.com Web C,ooSIe iHt~,«N NEWS I ARCHIVE I WEATHER I CALENDAR FORUMS I PHOTO GALLERY CLASSIFIEDS I JOBS I CARS I RENTALS • Copyright © 1999-2005 Bend.com LLC • All Rights Reserved. I Privacy Policy I Contact Us I Central Oregon's Up-to-the-Minute News located in Bend Oregon http://www.bend.com/news/ar-View-php?ar-id=22023 8/11/2005 Page 1 of 1 Tammie Walker UNNUMNOw- • From: "Dawn M. Marshall" <dawn. m. marshall@mlrr.oregongeology.com> To: <tammiew@mtaon line. net> Sent: Wednesday, August 10, 2005 10:52 AM Attach: Production Totals by County.xls Subject: DOGAMI Production Info Hi Tammie, Bob Houston asked me to send you production figures for Deschutes County. 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PA-04-8, ZC-04-6 /JUN 2005 MAILED N COUNTY ta/ Bend, OR 97709~i REQUEST: A plan amendment and zone change for 365 acres from Exclusive Farm Use (EFU-HR) to Surface Mining (SM): STAFF CONTACT: Paul Blikstad, Associate Planner AGENT: Robert S. Loviien Bryant Loviien & Jarvis, P.C. P.O. Box 1151 HEARING DATES: Tuesday, January 18, 2005, 6:30 p.m. and Wednesday, the Barnes and Sawyer Hearings Room, 1300 NW Wall APPLICANT/ 4-R Equipment, LLC OWNER: P.O. Box.5006 Bend, OR 97708 1. APPLICABLE CRITERIA: A. Title 22 of the DCC, the Development Procedures Ordinance B. OAR 660 Division 23, Procedures and Requirements for Complying with Goal 5 C. OAR 660-012-0060, Plan and Land Use Regulation Amendments D. OAR 660-015, Statewide Planning Goals NOTE: OAR 660-023-0180(9) provides that only those approval criteria set forth in OAR 660- 023-0180 may be used to decide whether to allow mining of a significant aggregate resource. Eugene Sand and Gravel v. Lane County, 44 Or LUBA 50, 96, rev'd and remanded on other grounds, 189 Or App 21, 74 P3d 1085 (2003). Therefore, this recommendation does not include findings that address DCC Titles 18 and 23. .II. FINDINGS OF FACT: A. LOCATION: The subject property is located in the Millican Valley, approximately 25 miles east of Bend along US Highway 20. The property has two assigned addresses and is identified on County Assessor's map 19-15 as tax lots 902, 1000 and 1001. Tax lot 902 has an assigned address of 57600 Spencer Wells Road, and tax lot 1001 has an assigned address of 57720 Spencer Wells Road. All three tax lots are located within Section 30 of Township 19 South, Range 15 East. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page f B. SITE DESCRIPTION: The subject property is $5 acres in size, is level-to gently rolling and has a vegetative cover of primarily sagebrush. No structures exist on the site. The property is bisected by Highway 20; a majority of the property is located south of the highway. A dry creek bed is located on the property, south of Highway 20. That portion of the propertyis a designated floodplain on the county Flood Insurance Rate Map. C. LOT OF RECORD: The record in this matter does not indicate the legal lot status of tax lots 902 and 1001. A prior conditional use permit on tax lot 1000 (CU-95-36) for a lot of record dwelling determined that the tax lots identified as 19-15, 1000 and 19-14-25, 1000 together form one legal lot. The applicant has not requested a legal lot detemination under these plan amendment and zone change applications. Staff notes that the Assessor's records indicate that the applicant also owns the tax lot identified as 19-14-25, 1000. This recommendation does not address the legal status of the three tax lots as lots of record. D. ZONING: The site is zoned Exclusive Farm Use - Horse Ridge subzone (EFU-HR) and is designated Agriculture and Antelope Habitat on the County Comprehensive Plan map. A portion of the property is also zoned Flood Plain (FP), per Flood Insurance Rate Map (FIRM) 41017C0375C. This flood plain zone is associated with the name "Dry River" on the FIRM map. The property is also within the Wildlife Area (WA) and Landscape Management (LM) combining zones. E. SURROUNDING ZONING: The property abuts public lands administered through the Bureau.of Land Management (BLM), identified on County Assessor's maps as 19-15, 100; 900; 19-14, 3300; 19-14-25, 100, 1100. There is also some private land directly west of the property (19-14-25, 800, 801, 802). Privately owned property is also located north of Highway 20, across. from the terminus of Spencer Wells Road (Walker Property). Both the public and private lands are zoned Exclusive Farm Use (EFU-HR), with Flood Plain zoning in the Dry River area, as well as having the. WA and LM combining zones. F. PROPOSAL: The applicant requests a post-acknowledgement plan amendment. (PAPA) to the Deschutes County Comprehensive Plan to include the subject property in the County's Inventory of Mineral and, Aggregate sites, and to rezone the subject property to Surface Mining. G. AGENCY COMMENTS: The Planning Division mailed notice to affected public agencies and received the following transmittal responses: 1. County Property Address Coordinator. The new address for this parcel is: 57600 Spencer Wells Road. 2. Oregon Department of Environmental Quality: To operate a Rock Crusher in the State.of Oregon the plant maybe required to have an Air Contaminate Discharge Permit from the DEQ, depending on the production. Have the source contact the regional office. Also note that aggregate operations are dusty and the Department has rules. on controlling visible emissions with the use of water. Asssociated aggregate activities such as truck and vehicle equipment traffic can cause dust and noise. Please plan this activity so it does not impact the community. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 2 r1 L_J Suggested Action: Use water to keep the, dust from blowing. Construct a berm around noisy activities to prevent noise problems. Is the site going to have land use to operate an asphalt plant? As these types of aggregate operations are established, the Department has observed asphalt plants come and go out of these sites without land use approval. To operate an Asphalt Plant in the State of Oregon, the plant is required to have an Air Contaminate Discharge Permit for the DEQ. 3. Qwest: Qwest does not serve this area. Century Tel provides services in that area. 4. Pacific Power and Light: Central Electric Coop service territory. 5. Oregon Department of Land Conservation and Development: I reviewed Deschutes County Post Acknowledgement Plan Amendment (DLCD File No. 016-04, Local file no. PA-04-8, ZC-04-6) to add an aggregate site, located off . Highway 20 three and a half miles west of Millican, to the county's inventory of significant aggregate sites. The application complies with the Goal 5 aggregate administrative rule with one minor exception. The hours of operation should be included in the application (OAR 660-023-0180(8)(e). Since the mining application was submitted to you on October 8, 2004,..the application technically falls under the revised aggregate rule that went into effect June 25, 2004. The section citations in the application reflect the old rule. For example on page nine of the application OAR 660-023-0180(4) should be OAR 660-023-0180(5). The applicant does not need to submit a revised application to update the section citations.. However, someone aware of the revised. rule could be confused when reading the. application. 6. County Road Department: Spencer Wells Road is a paved County maintained road. The pavement width. is approximately 22 feet wide. This road was designed for logging truck traffic.. There are less than 50 vehicles per day that use Spencer Wells Road. The use of Spencer Wells Road by traffic created by surface mining will have'a minimal impact on the structure of the existing road. 7. Oregon Department of Transportation: Based on my review of the letter describing traffic movement to and from the quarry site; and current and future traffic volumes on US 20, 1 do not believe that the proposed use will have a Significant impact on the highway. 8. County Assessor. No comment response. 9. The following agencies did . not respond to the notice: Central Electric Cooperative, Oregon Department of Fish and Wildlife, Oregon Department of Geology and Mineral Industries, Bureau of Land Managment, County Transportation Planner. • Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 3 H. PUBLIC COMMENTS: The Planning Division recently mailed notice of the public hearing scheduled for January 18, 2005 to property owners within 750 feet of the subject property and published a notice of the proposal in the Bend Bulletin. A great deal of written and oral testimony was presented during the hearings held on February 15, 2005 and April 20, 2005. The Hearings Officer left the record open for written testimony between February 15, 2005 and April 20, 2005. The written items added to the record are identified on the Exhibits List, which is attached to this recommendation. The items themselves are held in staff files. I. REVIEW PERIOD: The Planning Division deemed this application complete and accepted it.for review on November 21, 2004. OAR 660-023-0180(8) provides that a decision regarding a: PAPA to allow mining must be made within 180 days of the date the application was deemed complete. However, the applicant tolled the 180 day period from February 15, 2005. until April 20, 2005 to allow for additional evidence to be presented regarding the impact. of mining on identified cultural and archaeological resources, and again from April 20, 2005 until the issuance. of. the Hearings Officer's recommendation. J. SOILS: The. subject property consists of four soil types as follows: 55A. Gardone-Borobey complex 0 to 5% slopes: This soil complex is composed of 60°x6 Gardone soil and similar inclusions, 30% Borobey soil and similar inclusions, and 10% contrasting inclusions. The Gardone soil is excessively drained with a rapid permeability and an available water capacity of about 6 inches. The Borobey soil is somewhat excessively drained with a moderately slow permeability and an available water capacity of about 5 inches. The major use of this soil complex is livestock grazing. The NRCS rates this complex as VI-E, with no rating for irrigated land. This soil complex encompasses approximately 90% of the subject property and is not considered a high value soil. The proposed surface mining location is on this soil. type. 17A. Blayden loamy sand. 0 to 3% slopes: This soil complex is composed of 85% Blayden soil and similar inclusions and 15% contrasting inclusions. The Blayden soil is well drained with a moderate above the duripan permeability and an available water capacity of about 3 inches. The major use of this soil complex is livestock grazing. The NRCS rates this.complex as VI-S, with no rating for irrigated land. This soil complex encompasses approximately. 7% of the subject property and is not considered a high value soil. This soil type is located on the east side of the property. 132A. Stookmoor loamy sand. 1 to 36/a slopes: This soil complex is composed.of 85% Stookmoor soil and similar inclusions and 15% contrasting inclusions. The Stookmoor soil is somewhat excessively drained with a rapid over moderately slow permeability and an available water capacity of about 4 inches.. The major use of.this. soil complex is. livestock grazing. The NRCS rates this complex as VI-E, with no rating for irrigated land. This soil complex encompasses approximately 2% of the subject property and is not considered a high value soil. This soil type is located in the extreme northeast comer of the property, where no mining is proposed. 53C. Gardone sand, hummocky, 3 to 15% slopes: This soil complex is composed of 85% Gardone soil and similar inclusions and 15% contrasting inclusions. The Gardone soil is excessively drained with a rapid permeability and an.available water capacity of • Hearings Officer Recommendation PA-04-8 ZC-04-6 Page 4 about 6 inches. The major use of this soil complex is livestock grazing. The NRCS. rates this complex as VI-E, with no rating . for irrigated land. This soil complex encompasses approximately 1% of the subject property and is not considered a high value 'soil. This soil type is located in the extreme southeast corner of the property,. where no mining isproposed. 111. PRELIMINARY FINDINGS; A. OREGON ADMINISTRATIVE RULES 1. OAR 660-23-180. Mineral and Acorenate Resources. (1) For purposes of this rule, the following definitions apply. (a) "Aggregate resources" are naturally occurring concentrations, of stone, rock, sand, gravel, decomposed granite, limestone, pumice, cinders, and other naturally occurring solid materials commonly used inroad building or other construction. (f) "Mineral resources". are those materials and substances described In ORS 517.750(7) but excluding materials and substances described as "aggregate resources" under subsection (a) of this section. (2) Local governments. are not required to amend acknowledged inventories or plans with regard to mineral and. aggregate resources except in response to. an application for a post acknowledgement plan amendment (PAPA) or at periodic review as specified in OAR 660-023-0180(8). The requirements of this rule modify, supplement, or supersede the requirements. of the standard Goal 5 process in OAR 660.023-0030 through 660-023-0050, as follows; (a) A local government may inventory mineral and aggregate resources throughout its jurisdiction, or. in a portion of its jurisdiction. When a' local government conducts an inventory of mineral and aggregate sites In all or a portion of _ its jurisdiction, ft shall follow the requirements of OAR 660-023-0030 except as ` modified by subsection (b) of this section with respect to aggregate sites. When a local government is following the inventory process for a mineral or aggregate resource site under a PAPA, it shall follow the applicable requirements of OAR 660-023-0030, except where those requirements are expanded or superceded for aggregate resources as provided in subsections (b) through (co of this section and sections (3) (4). and (8) of this rule; • Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 5 (b) Local governments shall apply the criteria in section (3)or (4) of this rule, whichever Is applicable, rather than OAR 660-023-0030(4) in determining whether an aggregate resource is significant; (c) Local governments shall follow the requirements of section (5) or (6) of this rule, whichever Is applicable, : In deciding whether to authorize the mining of a significant aggregate resource site, and OAR. 660023-0040 through 660-023-0050 in deciding whether to authorize mining of a significant mineral resource; and (co For significant mineral and aggregate sites where mining is allowed, except for aggregate sites that have been determined to be significant under section (4) of this rule, local governments shall decide on a program to protect the site from new off-site conflicting uses by following the standard ESEE process in OAR 660-023-0040 and 660-023-0050 with regard to such uses FINDING: The applicant has submitted a PAPA, to the County.for review. The applicant has stated that the primary resource of the subject property is quality basalt. The applicant states that: 'There is estimated to be more than 17 million cubic yards of in- place rock, which is identified as offering excellent construction material properties relative to other resources available in Deschutes County.". The applicant states on page 8 of the burden of proof the following: 'Laboratory testing indicates the entire body of basalt rock (over 17 million cubic yards) easily ,exceeds ODOT's standards for highway construction aggregate." The PAPA submitted is for an agamate resource rather than a mineral resource as defined in OAR 660-023-0.180(1) above. The proposed resource, according to the applicant's submittal, is a naturally occurring concentration of rock, sand and gravel, commonly used in road building or. other construction. Consequently, the proposed applications will be reviewed for significance pursuant to OAR 660-023-0180(4). Additionally, the proposed application will be reviewed under OAR 660-023-0180(5) and (6) to, decide whether to authorize. mining: (3) An aggregate resource site shall be considered significant if adequate information regarding the quantity, quality and location of. the resource demonstrates that the site meets any one of the criteria in sections (a) through (c) of this section, except as provided In subsection. (co of this section; (a) A representative set of samples of aggregate material in the deposit on the site meets Oregon . Department of Transportation (ODOT) specifications for base rock for. air degradation, abrasion, and soundness, and the estimated amount of material is more than 2,000,000 tons In the Willamette Valley; or more than 500,000 tons outside the Willamette Valley; FINDING: The applicant submitted a geotechnical report from J. Andrew Siemens of Siemens & Associates dated June 16, 2004. The report states that: "laboratory testing indicates that the entire body of basalt rock (over 17 million cubic yards) easily exceeds. ODOT standards for highway construction aggregate." The estimated 17 million cubic • Hearings Officer Recommendation PA-04-8, Zb-04-6 Page 6 • yards, which converts to approximately 44,200,000 tons', is well beyond the minimum 500,000-ton threshold listed above.. This report states that the type of rock encountered at this site is "far superior to most basalt found in Deschutes County." Additionally, the Executive Summary of the report notes that "the general overburden can be used for more general purposes. and the sand and gravel of Stratum 2g could be skimmed and processed as rounded/subrounded aggreegate,", possibly used to batch Portland cement concrete and as a free-flowing drainage aggregate. The report also addresses the potential for sale of lightweight fill. No testimony was submitted during the proceedings before the Hearings Officer that undermines the evidence presented by the applicant as to the amount and type of aggregate material present on the. site.. Therefore, the Hearings Officer concludes that the site contains a "significant aggregate resource" as that term is defined in OAR 660- The Hearings Officer also concludes that because the site contains a significant aggregate resource under OAR 660-023-0180(3)(a), it is not necessary to address whether there is significant aggregate on site pursuant to OAR 660-023- 0180(4). However, in the interest of providing a complete recommendation to the Board of County Commissioners, the Hearings Officer adopts findings regarding OAR 660-023- 0180(4). (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section, or (c) The aggregate site is on an inventory of significant aggregate sites • in an acknowledged plan on the applicable date of this rule. FINDING: The County has not developed any standards that establish a lower threshold for significance than is identified in OAR 660-023-0180(3).. This property is not listed on the County's inventory of mineral and aggregate resources. Therefore, OAR 660- 02300180(3)(b) and (c) do not apply. (d) Notwithstanding subsections (a) an (b) of.this section, except for an expansion area of an existing site if the operator of the existing site on March 1, 1906 . had an enforceable property interest in the expansion area on that date, an aggregate site is: not significant if the criteria in either paragraphs (A) or (B) of this subsection apply. (A) More than 35 percent of the proposed mining area consists of soil classified as Class I on Natural Resource and Conservation Service (NRCS) maps on the date of this rule; or (B) More than 35 percent of the proposed mining area consists of soil classified as Class 11, or of a combination of Class 11 and Class I or Unique soil on NRCS maps available on the date of this rule, ' The rough rule of thumb is one cubic yard = 2.6 tons, according to Mark Dadenzo,. DLCO • Mineral/Aggregate Specialist. Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 7 FINDING. The soils information provided by the applicant indicates that all of the soils on the property are Class VI soils. That evidence is undisputed. Therefore, OAR 660- 023-0180(3)(d) does not apply. (4) Notwfthstancring section (3) of this rule, a local government may also determine that an aggregate resource site on : farmland Is significant if subsections (a) and (b) of this section apply or if subsection (c) of this section applies: (a) The quantity of material proposed to be mined from the site is estimated to be 2,000,000 tons of aggregate material or less for a site in the Willamette Valley, or 500,000 tons or less' for a site outside the Willamette Valley; and (b) Not more than 35 percent of the proposed mining area consists of soil (A) Classified as Class I on Natural Resource and Conservation Service (MRCS) maps available'on June 11, 2004; or (B) Classified as Class It, or a combination of Class ff and Class I or Unique soil, on NRCS maps on June 11, 2004, unless the average thickness of the aggregate layer within the mining.... area exceeds the amounts specified in. paragraph (B) of subsection (3)(d) of this rule; or • (c) A local land use permit that allows mining on the site was'issued prior to April 3, 2003, and the permit is in effect at the time of the significance determination. FINDING: The site includes approximately 17 million cubic yards of aggregate material, which is estimated to be 44,200,000 tons. The subject property.does not include Class 1, II or unique soils. Accordingly, OAR 660-023-0180(4)(a), (b) and (c) do not apply. (5) For significant mineral and aggregate sites, local governments shall decide whether mining Is permitted. For a PAPA application involving on. aggregate site determined to be significant under section (3) of this rule, the process for this decision Is set out in subsections (a) through (g) of this section. A local government must complete the process within 180 days. after receipt of a complete application that is consistent with section (8) or by the earliest date after 180 days allowed by local charter. FINDING: The, Hearings Officer finds the proposed aggregate site includes "significant aggregate resources" as that term is defined in OAR 660-023-0180(3). Therefore, the county is obligated to review this application against the approval criteria set out in OAR 660-023-0180(5) and (6): , The. plan amendment and zone change applications will be processed within the required 180 days, as the applicant has agreed to toll.the time for decision on two separate occasions. i Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 8 • (a) The local government shall determine an impact area for the purpose of identifying conflicts , with proposed mining and processing activities. The impact area shall be large enough.to include uses listed in subsection (b) of this section and shall be limited to 1,500 feet from the boundaries of the mining area, except where: factual information indicates significant potential conflicts beyond this distance. * FINDING: The applicant proposes to extract the basalt from the site in three phases, one encompassing 32 acres, the second encompassing 33. acres and the final phase encompassing 80 acres. The following mining activities will occur on-site: blasting, excavation, sorting, crushing and stock-piling. The applicant will develop a watering pond on-site to suppress dust. The applicant anticipates that reclamation would occur on . an on-going basis, with the site being finally reclaimed as a natural area, with native grasses and shrubs. The applicant anticipates that approximately 6-8 truck trips would be made on 'a daily basis. (Burden of Proof Statement 2-3.) However, the applicant used 68 round trips per. day in estimating the. traffic impact.the. mining activity would have (Burden of Proof Statement 11.) According to the applicant, the higher number of trips is based on the estimated traffic generated during the peak construction season (summers), when the demand for aggregate will be higher. The applicant identified a "small recreational site" west of the property, Spencer Wells Road and Highway 20 as the only uses within the 1,500 foot impact area. (Burden of Proof Statement 10). Testimony indicates that the aggregate extraction activities outlined above will create conflicts with uses identified in the table below. The table identifies the types of uses that will be affected, their estimated distance from the subject property, and the types. of potential conflicts identified. The distances are based on testimony entered into the record. Existing Use/Activity Distance from Subject Prop6rty Potential Conflict 1. Walker Residence 2,300 feet dust, noise, traffic, vibrations, water drawdown; ualit of life 2. Coyote Well historic site 1,350 feet vibrations water drawdown 3. Pictographs 1,950 feet vibrations, dust 4. Best Shelter BLM 1,775 feet dust, noise, traffic, vibrations 5. Pine Mountain Observato 6.5 miles dust 6. Sage grouse nesting site (lek) . 1.25 miles dust, noise, vibrations, interference with nesting sites & migration patterns 7. Evans Well Ranch. South of subject property dust, noise, traffic, vibrations, water drawdown, visual impact, quality of life 8. Highway 20 bisects property dust, additional. traffic may cause traffic safety issue 9. Wildlife Area. Combining a lies to subject mining activities would Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 9 • Zone (Antelope) property and disturb antelope surrounding area 10. ORV recreational trails BLM land to west, dust, noise, traffic, quality of : north and east recreational experience 11. Other residences Varies quality of life; traffic OAR 660-023-0180(5)(a) provides for a 1,500 foot impact area "except where factual information indicates significant conflicts beyond this distance." Staff recommends a one-half mile (2,640 square foot) radius as an impact area because the county's Surface Mining Impact Area combining zone has been applied to property within one-half mile of . other mining sites within the county. Testimony indicates that the prevailing winds are from the northwest to the southeast, and that dust generating activities on the west side of the valley, where the subject property. is located, have an impact on property far to the southeast. Testimony also indicates that the activities of the. Pine Mountain Observatory include instruments that are extraordinarily sensitive to dust. Therefore, the Hearings Officer concludes that it is appropriate to designate an impact area that includes the Pine Mountain Observatory. The Hearings Officer concludes that "factual information' submitted, to the county during the course of these proceedings justify an expansion of the 1,500 foot impact area to include existing, and approved uses within'/ mile to the north of the northern boundary of the subject property; two miles west of the western boundary (to include the Horse Ridge grade on Highway 20); 1 mile south (to include agricultural activities lying on the southern end of the valley);. 6.5 miles to the southeast (to include the Pine Mountain Observatory) and 3 miles to the east (to include the sensitive bird and mammal sites and ORV trails). (b) The local government shall determine existing or approved land uses within the impact area that will be adversely. affected by proposed mining operations and shall specify, the predicted conflicts. For purposes of this section, "approved land uses" are dwellings allowed by a residential zone. on existing plat ted lots and other uses for which conditional or frial approvals have been granted by local government For determination of conflicts from proposed mining of a significant aggregate site, the local government shall limit its consideration to the following: (A) Conflicts due to noise, dust or other discharges with regard to those existing and approved uses and associated activities (e.g. houses and schools) that are sensitive to such discharges; (B) Potential conflicts to local roads used for access and egress to the mining site within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the local transportation plan. Conflicts shall be determined based on clear and objective standards regarding sight distances, road capacity, cross section elements, horizontal • and vertical alignment, and similar items in the transportation Hearings Officer Recommendation PA-048, ZC-04-6 Page 10 • plan and implementing ordinances. Such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight and capacity that haul other materials, (C) Safety conflicts. with existing public airports due to bird . attractants, Le., open water impoundments as specifred'under OAR Chapter 660, Division 013,*. (D) Conflicts with other Goal 5 .rdsource sites within the Impact. area that are shown on an acknowledged list of significant resources and for which the requirements of Goal 5 have been completed at the time the PAPA is initiated; (E) Conflicts with agricultural practices; and (F) Other conflicts for which consideration- is necessary in order to carry out ordinances that supercede Oregon Department of Geology and Mineral Industries (DOGAMI) regulations pursuant to ORS 517.780. FINDINGS: A. General Finding Existing and approved land uses within the impact area include: (1) the Walker residence; (2) wildlife combining zoning designation to protect antelope habitat; (3) a sensitive bird and mammal site designation to protect sage grouse;. (4) ORV trails; (5) agricultural uses, including cattle grazing; (6) the Pine Mountain Observatory; (7) the unincorporated community of Millican, consisting of a dwelling and a store and (8) Highway 20 and Spencer Wells Road. Testimony presented during the hearings have identified the location of Coyote Well and Native American pictographs and "the possible location of burrowing owl and pygmy rabbit dens, however, neither of those sites/species have been included on a county Goal 5 inventory, and no program has been.adopted to protect them. Therefore, they may ' not be considered under OAR 660-023-0180(5)(D). Similarly, the impact on the quality of life of residents and visitors to the Millican Valley and aesthetic concerns may not be considered, because OAR 660-023-0180(5) limits the types of conflicts that may be considered to those listed in that section. Morse Bros. Inc. v. Columbia County, 37 Or LUBA 85 (1999), afrd 165 Or App 512 (2000). In addition, while many opponents testified that the quality and quantity of aggregate that is located on this site is not needed at all or is obtainable elsewhere, the Hearings Officer notes that neither one of those factors are relevant to whether mining may be allowed under OAR Chapter 660, division 23 B. Noise, dust and vibration (OAR 660-023-0180(5)(b)(A)) Testimony and evidence supports a finding that the proposed mining activity would create noise, dust and vibration impacts.that will conflict with residential uses within the impact area. In addition, testimony supports a finding that.dust will affect the operations . of the Pine Mountain Observatory and the. use of the ORV trails. To the extent identified Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 11 cultural resources may be considered to be 'existing uses" under this paragraph, the Hearings Officer notes that ,there was testimony that vibrations from mining activities may adversely affect the pictographs, Coyote Well and existing habitat on site. C. Traffic Impacts (OAR 660-023-0180(5)(b)(B)) As indicated above, the only two public roads in the impact area are Highway 20 and Spencer Wells Road. The. conceptual site plan drawing indicates that access to the mining site is proposed to be from Spencer Wells Road, with no direct access to Highway 20. Comments were received from the Oregon. Department of Transportation and the County Road Department stating that they believe the traffic impacts on these two roads from the proposed mining operation will be. minimal. The topography in this area is generally level.and the sight distances should not be a problem forthe mining operation. Testimony from opponents expressed concerns regarding traffic safety, including interference with safe boarding of school buses, wear on road shoulders where trucks move to the far right of roads to let faster vehicles pass; impaired visibility because of dust; and conflict with bicyclists on the road. However, the opposing testimony does not identify whether those impacts, if they occur, violate ordinances or regulations pertaining to "sight distances, road capacity, cross section elements, horizontal and vertical alignment, and similar items in the transportation plan" such that they may be evaluated pursuant OAR 660-023-0180(5)(b)(B). Without some connection between the opponents'. testimony and applicable .road development standards, the Hearings Officer concludes that such concerns may not be considered. j D. Goal 6 Resources (OAR 660-023-0180(5)(bND)) The subject property is within a wildlife area combining zone. This area is identified on the County Comprehensive Plan map as antelope range.. The site is also within 125 miles of a sensitive bird and mammal site. E. Agricultural Practices.(OAR 660-023-0180(5)(b)(E) The impact area includes working ranches. Testimony indicates that the primary agricultural product is beef cattle, although sheep and dry land rye have been produced in the valley.. Keith and Janet Nash, who operate of Evans Well Ranch, testified that there is insufficient evidence to support a conclusion that mining will not adversely affect the availability of water for agricultural purposes. In addition, the Nashes are concerned that approval of the proposed mine will create pressure to convert agricultural land to other uses. Finally, the Nashes expressed concern that the proposed mining activities may result in pollutants entering the water table from the use of mining machinery. F. Other Conflicts Identified in OAR 660-023-0180(5)(b) OAR 660-023-0180(5)(b)(C) and (F) do not apply, as they pertain to the establishment of open water areas near airports, and regulations implementing in lieu of rules adopted by DOGAMI. (c) The local government shall determine reasonable and practicable measures that would minimize the conflicts identified under subsection (b) of this section. To determine whether the proposed measures would minimize conflicts to agricultural practices, the requirements of 'ORS 215.296 shall be followed rather than the • Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 12 requirements of this section... If reasonable and practicable measures.are identified to minimize all identified conflicts, mining shall be allowed at the site and subsection (d) of this section is not applicable. If identified conflicts cannot be minimized, subsection (49 of this section applies, FINDING: The applicant has proposed the following minimization. efforts to address the conflicts identified above: A. Noise, dust and vibration: The applicant contends that most of its mining operation will occur below grade and therefore the noise, dust and visual impacts will be minimized. Further, the. applicant contends that blasting will occur on an infrequent basis, and the amount of blast will be limited to ensure that ,off-site impacts will be minimized. The applicant produced seismic studies to. support its.claim that blasting vibrations will not affect the pictographs, Coyote Well or residential uses on the Walker property. The applicant proposes to operate from 7 a.m. until 10 p.m.; five days a week. However, the applicant has also indicated that those hours are the maximum hours of operation, and shorter hours may be established by the county to limit dust, noise and vibrations to normal.working hours .(8 a.m. until 5 p.m., Monday through Friday). The applicant has also indicated that it will not operate outside of daylight hours: The applicant also proposes to establish a pond to store water to be used for dust suppression. The'Hearings Officer concludes that the applicant has not provided suffcien t evidence to support a conclusion that its proposed minimization efforts will (1) limit noise;. (2) minimize.dust;.and (3) protect surrounding properties from vibration damage. B. Traffic As stated earlier, the applicant proposes to access the subject property via Spencer Wells Road. The applicant's traffic impact study indicates that the additional trips generated by the proposed mining activity will not change the level of service on either Spencer Wells Road _ or Highway 20. Comments from ODOT and the county road department support that conclusion. The Hearings Officer concludes that provided the applicant demonstrates compliance with county. road standards for access, traffic impacts from the proposed mining activity is minimized. C. Impact on Identified Goal 5 Resources The Fish and Wildlife chapter of the County Comprehensive Plan (chapter 23.104) specifies policies for the antelope range as follows: 8. The antelope range and antelope winter range identified on the Big Game Habitat-Wildlife Area Combining Zone Map. included in the Resource Element of this plan shall be protected by a wildit area combining zone. The minimum lot size for new parcels shall be 320 acres. .The Rural Service Centers of Brothers, Hampton and Millican • shall be exempt from the provisions of the Wildlife Area Combining Hearings Officer Recommendation PA-04-8, ZC-04-8 Page 13 Zone. 10. The County shall notify the Oregon Department of Fish and Wildlife of all land use applications for lands located in the WA Combining Zone or the Sensldve Biro) and Mammal Overlay Zone. Staff notified ODFW of, the proposed plan amendment/zone change applications, and received no response. If the plan amendmenttzone change applications are approved, the proposed surface mining operation will require site plan review, which will also involve notice to ODFW. Staff notes that the applicant submitted a copy of a letter from Steven George, Deschutes District Wildlife Biologist with ODFW. Mr. George has agreed. to the wording of a condition that would serve to protect the antelope range designation In this area. The letter states: "The following proposal was submitted by Gary Hostick, ESI, concerning mitigation for Antelope Range, winter protection guidelines: Blasting and crushing will cease. during periods of severe winter weather conditions that may force antelope with no alternative winter range into the area adjacent to the rock pit. The Oregon, Department of Fish and Wildlife District Biologist (ODFWDB) will monitor severe winter conditions based on snow depth, temperature, and numbers of antelope within 2 miles of the rock pit. ODFWDB will notify JRSI when cessation of crushing and blasting is deemed necessary by the ODFWDB due to antelope winter. range conditions. Cessation of blasting and crushing may be necessary within 24 hours notice due to the nature of winter storms. JRSI may choose to remove crushing" equipment if crushing/ blasting cessation is necessary, and this removal will take up to two weeks from the date of notice of cessation. ODFW has reviewed this wording and we do not have any suggested modifications. These suggested mitigating measures should be sufficient to protection antelope during the winter months. ODFW looks forward to reviewing the remaining measures that Jack Robinson and Sons, Inc. will put into the ESEE analysis to mitigate the effects of the surface. mining activity." The proposed surface mining operation is within 125 miles of a sensitive bird and ..mammal site. This site is a sage grouse site (lek), listed as site no. DE 0999-01 on the County's wildlife inventory, located in section 26 of Township 19 South, Range 14 East. The mining site is located outside of the Sensitive Bird and Mammal (SBM) combining zone, and does not require SBM review under chapter 18.90 of Title 18. The subject property is also located within a Landscape Management (LM) combining zone. The LM zone extends parallel to and at a distance of one-quarter mile in each direction perpendicular from the. centerline of Highway. 20: The applicant has proposed a 600-foot buffer area adjacent to the highway, in which no surface mining would occur, including any stockpiling or structures. Staff believes that this buffer will help preserve the LM corridor, and also given the remote location of the site and the lack of any significant vegetation (virtually no trees), the purposes of the LM zone will be met by the proposed change to allow mining. The Hearings Officer concludes that protections imposed as a result of a county Goal 5 program to preserve habitat are the only minimization protections that may be imposed Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 14 • • on a mining operation reviewed pursuant to OAR. 660-023-0180(5)(c). In this case, the applicant has agreed to a condition of approval to protect antelope habitat.. With respect to the sage grouse site, the subject property is not located within an area that requires SBM review under the DCC; therefore, no additional protections may be imposed to minimize the impacts under OAR 660-023-0180(5)(c). D.. Agricultural practices OAR 660-0,23-0180(5)(c) requires that conflicts resulting from . the proposed mining activities be evaluated pursuant to the "requirements of ORS 215196." The Hearings Officer interprets this to mean that a conflict between mining and agricultural practices is . minimized if the conflict will not "force a significant change in accepted farm and forest practices on surrounding land devoted to farm or forest uses" or "significantly increase the cost of accepted farm or forest practices on surrounding lands devoted to farm or forest use." ORS 215.295(1)(a) and (b). In this case, the only agricultural activities that have been identified are cattle grazing . and some dryland rye and hay. The identified conflicts with accepted agricultural practices include the potential drawdown of aquifers used for agricultural uses, the introduction of. mining-related pollutants, into the aquifer, and the conversion of agricultural land to other uses. There Is insufficient evidence in the record to address (1) whether the proposed mining activities will affect the valley water supply and/or convert agricultural land to other uses; (2) if the water supply is affected, whether the impact would violate the ORS 216,.296(1) standard; or (3) what minimization efforts the applicant proposes to address the identified concerns, if the board of county commissioners concludes they are valid. The Hearings Officer concludes that there is insufficient evidence to support a conclusion that mining, as proposed, will not create the conflicts identified. Therefore, this conflict is . .not minimized. (d). The local government shall determine any significant conflicts identified under the requirements of subsection (c) of this section that cannot be minimized. Based on these conflicts only, the local government shall determine the ESEE consequences of either allowing, limiting or not allowing mining at the. site. Local governments shall reach this decision by weighing these ESEE consequences, with consideration of the following: (A) The degree of adverse effect on existing land uses within the. Impact area; (B) Reasonable and practicable measures that could be taken to reduce the identified adverse effects; and (C) The probable duration of the. mining operation and the post- mining use of the site. FINDING: As noted above, the Hearings Officer concludes that the proposed mining will cause, noise,.dust, vibration and conflicts with uses sensitive to those impacts. Further, testimony indicates that the proposed mining activity may have an impact on the quality and quantity of water available for domestic and agricultural activities. The Hearings Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 15 • Officer finds that these conflicts require an ESEE analysis The applicant has not provided an ESEE analysis. Staff prepared an ESEE analysis" following the process set out at OAR 660-023-0040.. (See pp. 15-20 of the January 6, 2005 staff report.) However, the ESEE analysis conducted pursuant to OAR 660-023- 0180(5)(4) is more limited than the process outlined in OAR 660-023-0040. Further, the ESEE analysis conducted by staff does not address impacts identified in the expanded impact area, as staff was not aware that an.expanded impact area would be adopted. The Hearings. Officer recommends that a new ESEE analysis be performed to address the conflicts identified through the initial hearings process. The county may, require that the applicant provide additional evidence to.support a conclusion that mining will not result in the conflict identified, provide additional minimization measures to eliminate the conflict and or provide a draft ESEE analysis for the county to review. Hel/berg. v. Morrow County, _ Or LUBA _ (May 17, 2005) slip op 7. • (e) Where mining is allowed, the plan and. Implementing ordinances shall be amended to allow such mining. Any required measures to minimize conflicts, including special conditions and procedures regulating mining, shall be clear and objective. Additional land use review (e.g. site plan. review), if required by the local. government, shall not exceed the minimum review :necessary to assure compliance. with these requirements and shall not provide. opportunities to deny mining for reasons unrelated to these requirements, or, to attach additional approval requirements, except with regard to mining or processing activities: (A) For which the PAPA application does not provide information sufficient to determine clear and objective measures. to resolve identified conflicts; (B) Not requested in. the PAPA application; or (C) For which a significant change to the type, location or duration of the activity shown on the PAPA application is proposed by the operator. FINDING: The proposed plan amendment/zone change applications, if approved, will require that ordinances amending the comprehensive plan and zoning map be adopted by the Board of County Commissioners, -which establish the surface mining (SM) zone, and the associated Surface Mining Impact Area (SMIA) combining zone. When the ordinances are adopted, the property is zoned SM and the applicant can then apply for site plan review to request approval of a mining operation. Site plan review. can be done administratively by staff or. referred to a public hearing before the County Hearings Officer. The applicant has included as part of the application package a letter from Steven George, Oregon Department of. Fish. and Wildlife, to the mining operator, recommending a proposed condition for protection of the antelope range. The proposed language should be included as a condition of approval of the zone change.. (t) Where mining is allowed, the local government shall determine the post-mining use and provide for this use in the comprehensive plan Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 16 and land use regulations. For significant aggregate sites on Class 1, , 11 and Unique farmland, local govemments shall adopt plan and land use regulations to limit post mining use to farm uses. under ORS 215.203, uses listed under ORS 215.213(1) or 215.283(1), and fish and wildlife habitat uses, Including wetland mitigation banking. Local governments shall coordinate with DOGAMI regarding the. . regulations and reclamation of.mineral and aggregate.sites, except where exempt under ORS 517.780. FINDING: The applicant has not proposed a post-mining use, other than it will be . reclaimed to the specifications of DOGAMI. However, the applicant has'stated that the site will be planted with native grasses, implying that the post-mining use will be for wildlife habitat The subject property includes only class VI soils, therefore, the requirement that.post- mining uses be limited to farm uses or fish and wildlife uses does not directly apply. However, staff believes that any post-mining use should be limited to any use allowed in the EFU zone, which. staff believes the subject property should return to when mining on .the site is completed and the. reclamation work is also completed. The Hearings Officer agrees that if no post-mining use has been identified by the applicant, post-mining uses should be limited to those permitted by the EFU zoning. (8) In order to determine whether information M* a PAPA submittal concerning an aggregate site is adequate, focal government : shall follow the requirements fo this section. rather than OAR 660.023-0030(3). An application for approval of an aggregate site following sections (4) and (6) of this rule shall be adequate if it provides sufficient information to determine whether the requirements in those sections are satisfied. An application for a PAPA concerning a significant aggregate. site following sections (3) and (5) of this rule shall be adequate if it includes: (a) Information regarding quantity, quality, and location sufficient to determine whether the standards and conditions in section (3) of this rule are satisfied;. FINDING: The applicant. has submitted a geotechnical report on the quantity, quality and location of the aggregate resource on the subject property, prepared by Siemens & Associates. This evidence is adequate to address OAR 660-023-0180(3). (b) A conceptual site reclamation plan: (Note: Final approval of reclamation plans resides with DOGAMI rather than local governments, except as provided in ORS 517.780) FINDING: The applicant has submitted a conceptual site plan, which lists three phases for the mining operation. The applicant anticipates that mining will occur on the property until the resource is depleted, which the applicant estimates will be twenty years hence at the earliest. The Hearings Officer concludes that the applicant must identify a post- mining use, and must submit a conceptual. reclamation plan: that will achieve the post- mining use prior to approval of the PAPA. • Hearings Officer Recommendation PA-04-8, ZG-04-6 Page 17 • (c) A traffic impact assessment within one mile of the entrance to the mining area pursuant to section (5)(b)(B) of this rule; FINDING: The applicant has submitted a traffic impact assessment prepared. by Ferguson & Associates, Inc. that addresses the impact of the proposed mining operation on roads located within one mile of the entrance to the subject property. (co Proposals to minimize any conflicts with existing uses preliminarily identified by the applicant within a 1,500 foot impact area; and FINDING: The applicant has proposed to conduct mining operations within the extraction area to minimize noise and dust impacts on residential uses. The applicant proposes to use water to minimize dust in the air and on internal roads.. The applicant has agreed to limit mining activities during the time of year when antelope are likely to use the property for browse and shelter. The applicant has also agreed to limit the levels of blasting to minimize vibration and noise. The applicant has not identified any measures to minimize traffic or.impact on water drawdown, as the applicant does not believe those impacts will occur. Similarly, the applicant has not submitted proposals to address conflicts extending beyond the 1,500 foot impact area. (e) A site plan indicating the location, hours of operation, and other pertinent information for all proposed mining and associated uses: FINDING: The applicant has submitted a conceptual site plan showing the proposed mining operation. It is divided into three phases, with proposed buffer areas on all sides of the project. The access road is shown extending from Spencer Wells Road, and stockpile areas are indicated adjacent to the phase 2 mining area. The application does not list specific hours of operation, although testimony from the applicant's representatives indicates that the hours of operation will vary throughout the year, with :the longest workdays corresponding with the summer light. The applicant has also agreed to limit work time during the winter months to protect antelope cover. .(9) Local governments shall amend the comprehensive plan' and land use regulations to include procedures and requirements consistent with this rule for the consideration of PAPAs concerning aggregate resources. Until such local regulations are adopted, the procedures and requirements of this rule shall be directly applied to local government consideration of a PAPA. concerning mining authorization, unless the local plan contains specific criteria regarding the consideration of a PAPA proposing to add a site to the list ofsignifficant aggregate sites, provided. (a) Such regulations were acknowledged subsequent to 1989; and (b) Such regulations shall be amended to conform to the requirements of this rule at the next scheduled periodic review after September 1, 1996, except as provided under OAR 660-023-0250(7)- FINDING: . The County has not adopted regulations to address PAPAs consistent with this rule. Therefore, the provisions of OAR 660-023-0180 apply directly. • Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 18 • V. RECOMMENDATION: Based'on the preliminary findings adopted above, the Hearings Officer concludes (1) that only the approval criteria set forth in OAR 660-023-0180 apply to an application to permit mining activity on the subject property; (2) that there is insufficient evidence to approve the application, as the applicant has not identified minimization measures that may avoid or minimize conflicts to the extent that they do not have to be considered in an ESEE analysis conducted pursuant to OAR 660-023-0180(5)(d); and (3) the applicant has not submitted an ESEE analysis to address the identified conflicts. Dated this 1st day of June, 2005. (fat tt,- Anne Corcoran Briggs Hearings Officer Mailed thisLay of 2005. i • Hearings Officer Recommendation PA-04-8, ZC-04-6 Page 19 ,g7'~~122232 Hearings Officer Site Visit Report Deschutes County File PA 04-028/ZC 04-046 ~+~R 2005.,_. 4-R Equipment LLC, Applicant _n 10 Anne Corcoran Briggs, Hearings Officer COUN y Date/Time of Site Visit: March 15, 2005, 1:30-3:30 p.m. pe~~ ` Persons attending: Anne Corcoran Briggs (HO); Paul Blikstad, Associate Planner Weather: Cool and overcast, with winds coming from the NW Attached is a map depicting the approximate locations of the areas the HO and planner visited. Observations are described below. Site: The subject property is located on the west side of the Millican Valley floor, at the base of Horse Ridge. It is bordered by Highway 20 to the north and Spencer Wells Road to the west. The property is level to gently rolling, and is covered with sage brush. A shallow natural trench traverses the property in a northwest to southeasterly line. Several wooden stakes were located on the property and appear to identify the location of gravel test borings. There are no other structures located on the property, and the perimeter is partially fenced with three-wire and posts. The HO observed several species of birds, and what appeared to be deer or antelope tracks. Surrounding Property: A. Walker Property The subject property is located in a sparsely developed area. The nearest residence, as noted during the February 15, 2005 hearing, is the Walker residence. The Walker's residence lies to the north of the subject property, approximately 1000 feet north of Highway 20. The Walker property is developed with a driveway, a dwelling and several outbuildings. A panoramic view of the Millican Valley to the south and east can be seen from the dwelling. The subject property is clearly visible from the dwelling and outbuildings. Approximately 40 feet north of Highway 20, west of the driveway, is an area that appears to'be a former river bed. There are rock walls rising above the bed. In an area that is approximately one-quarter mile northwest of the subject property, the HO observed what appear to be pictographs on one of the rock walls. • Site Visit Report (3/17/2005) Page 1 of 2 • B. Highway 20 Highway 20 is the major land connection between Bend and Bums. It is, for the most part, a two-lane highway with narrow shoulders in the vicinity of the subject property. Portions of the Horse Ridge incline of Highway 20 have three lanes. Traffic during the time of the site visit was light. The HO observed passenger vehicles, light trucks, commercial trucks, and gravel trucks traveling along the route from Bend to the subject property. At inclines, the gravel trucks used the break-down lane/shoulders to allow faster vehicles to pass. One bicyclist was observed traveling east. C. Moon Pit Some of the testimony at the February 15, 2005 hearing referenced the Moon gravel pit. The HO and the planner drove to the pit, which is located northwest of the subject property. The. Moon Pit is not visible from the Millican Valley, as Horse Ridge is an intervening topographical feature. At the time of the site visit, a truck was departing from the pit. A water pipe was located at the exit, above the truck beds, and water was sprayed on the gravel in the truck bed to dampen dust. Several trucks entered and left the Moon Pit access road during the site visit, and were observed on Highway 20. D. Other Observations The HO and the planner drove approximately one mile east of the Millican store, and returning, observed what appears to be a shooting range on property located to north of Highway 20. In addition, many off-road vehicle trails are located in the vicinity. According to evidence in the record, a majority of those trails are located on public land. Three vehicles were observed entering or leaving Spencer Wells Road. C Site Visit Report (3117/2005) Page 2 of 2 • • WWF Nips rrF- y _ R gq~,cpft"f, 4LG Q - /5 ~+tac lofs 94~, /our, • --lb, ~h e i+-st7 hm, //lava (iPCChutes.org/mox4/indexintra.cfrn?action=dsp mox4 map_if IE4_Printable... 10/26/2004 Moon Print Map vC plrtt Page I of I • DECISION NOTICE AND FINDING OF NO SIGNIFICANT IMPACT Bend-Fort Rock Ranger District Deschutes National Forest Deschutes, Oregon Pine Mountain Observatory Master Plan Project Environmental Assessment An Environmental Assessment (EA) for the Pine Mountain Observatory Master Plan Project area has been prepared that describes a range of alternatives, which includes removal of selected trees that are encroaching on telescope views, a management plan for the site, and consideration of no action within the Bend-Fort Rock Ranger District of the Deschutes National Forest. Location The project area is located approximately 30 miles southeast of Bend, Oregon within T. 20 S., R. 15 E., Section 33; Willamette Meridian, Deschutes County, Oregon. The project area is outside the range of the northern spotted owl and boundary of the Northwest Forest Plan, but within the boundaries of the Revised Interim Management Direction Establishing Riparian, Ecosystem and Wildlife Standards for Timber Sales (interim Direction), also known as the Eastside Screens. The permit area and observatory facilities are located entirely within the boundaries of Scenic Views (MA-9), land allocation of the Deschutes National Forest Land and Resource Management Plan (LRMP), 1990. The goal of this allocation it to provide "...Forest visitors with high quality scenery that represents the natural character of Central Oregon." (LRMP page 4-121). Decision I have decided to authorize implementation of Alternative 3 of the Pine Mountain Observatory Master Plan Project EA. This alternative is particularly responsive to the issues identified in the EA. Alternative 3 is the preferred alternative that was. identified in the 30-day public review and comment period notice published February 25, 2004 in The Bulletin. The Pine Moutain Observatory Mater Plan Project area encompasses approximately 9 acres. Alternative 3 will approve a site plan for the special use permittee, the University of Oregon. Alternative 3: Alternative 3 was developed following public scoping that ended on June 17, 2002. All alternatives considered are consistent with the Deschutes National Forest LRMP (1990) as amended. Alternative3 responds to the key issues identified during scoping. A variety of standard mitigation measures have been included in order to ensure consistency with the Deschutes National Forest LRMP. Alternative 3 provides the greatest flexibility to the University to address future research and educational needs. Alternative 3 has 2 phases.. The actions that will occur during Phase I: 1) A new special use permit would be issued for a period of 20 years. 2) The Special Use Permit Area would be expanded from the current approximately 3.6 acres to approximately nine (9) acres. The boundary would be extended to the ridgeline on the east and to Road 2017 on the west. The boundary would incorporate all existing structures and infrastructure including access roads and septic 0 drainfields and be of sufficient size to include proposed future development. 3) Construct an educational center, approximately 3500 square foot and approximately 60 feet x 66 feet. In addition to classroom facilities, it would include restrooms, storage areas, a gift shop, kitchen, gallery, elevator and two telescopes; a 15-inch and a proposed 20-inch telescope. It would include an approximate 5000 foot (3500 square foot) amphitheater/viewing area on the south side of the building. The existing 15- inch telescope building would be removed and the telescope relocated in a new dome attached to the education building. 4) Construct a new storage shed, approximately 16 feet x 16 feet x 12 feet in height, on an existing pad adjacent to the resident manager's driveway. It would replace the existing storage shed which would be removed to construct the education building. 5) Construct an auxiliary generator building, approximately 10 feet x 12 feet x 12 feet in height, to house a 250 KW generator powered by either propane or diesel fuel. 6) Construct a new parking lot, approximately 330 feet in length by 45 feet wide with parking for 37 vehicles. It would use the current parking lot entrance but require a new exit on the south end onto Road 2017. 7) Extend an existing road approximately 50-75 feet to provide access to the education building and provide a two space handicapped parking area adjacent to the building 8) Construct approximately 120 feet of new walking trail from the new parking lot to the education building and either pave or surface with dust abating materials. 9) Obliterate approximately 75 feet of existing trail and steps and approximately 150 feet of existing road. The road would be subsoiled and revegetated with native vegetation. 10) Construct a new 1,500 gallon septic system to handle the expected use of the education building to the south or east of the new education building. It would include two (2) drainfields; a primary and a backup. The size of both fields would be expected to be less than 0.2 acres or approximately 8,700 square feet. The system would be designed to Department of Environmental Quality and/or Deschutes County standards 11) Upgrade existing utilities, including, water, telephone and T1, and electrical. 12) Develop a vegetation management plan to maintain telescope views, defensible spaces around buildings, and help to maintain reduced fuel loadings. • 13) Plant approximately one quarter (0.25) acre between Road 2017 and the new parking area and between the parking area and the researcher's quarters and education building with trees to help screen the observatory from the road and reduce light pollution from vehicles. The following actions would occur during Phase 11: 1) The researcher's quarters would be replaced and a new, two story facility placed on the existing footprint (approximately 54 feet x 27 feet). 2) The resident manager's residence and deck would be replaced using the existing footprint (approximately 1000 square feet). 3) Construct new maintenance garage and shop, approximately 30 feet by 40 feet by 18 feet tall, northeast of the resident manager's residence. This would require extending the existing road approximately 100 feet. The extension would be either paved or surfaced with dust abatement material to reduce dust pollution. 4) Construct parking for 10 vehicles adjacent to the researcher's quarters. The parking area and access road would be either paved or surfaced with dust abatement material to reduce dust pollution. 5) The main access road from Road 2017 to the 24-inch telescope would be either paved or surfaced with dust abatement material to reduce dust pollution. Construction of new facilities would result in the removal of less than 10 trees greater than 21 inches diameter at breast height (dbh). An unknown number of smaller diameter and younger trees would also be removed. No mature or old growth aged trees would be removed. . Decision Rationale Alternative 3 provides the best combination of a management plan for the special use permit. A new special use 11 permit will allow the University of Oregon to continue to operate the observatory. It provides the perimitee the • latitude to respond to resource protection and benefits. Alternative 3 will provide for the expansion of the existing permit area to incorporate existing structures and infrastructure and to allow the observatory to develop new facilities and upgrade existing facilities to meet existing and future research and educational needs and opportunities. This alternative in the long-term will continue vegetation management activities prescribed in the vegetation management plan, primarily the removal of trees that encroach upon telescope views and to maintain defensible spaces around structures. Additional Alternatives Considered in Detail In addition to Alternative 3, two other alternatives were developed and analyzed for the Pine Mountain Observatory Master Plan Project area but not selected. Other Alternatives Analyzed Alternative 1 (No Action): I did not select this alternative because it does meet the needs for the special use permit which requires an active management plan to provide for current and future research, basic facility structure and improvements, and increasing the permit area size to provide for improvements. The existing permit area would not be expanded. Facilities and infrastructure currently outside the permit boundaries would remain so. No new facilities would be constructed or upgraded. Conflicts between educational programs and research needs would continue to increase. Expansion and improvement of the distance-learning program would be limited or non-existent. No vegetation management plan would be developed. Telescope views of the lower horizon would continue to degrade or disappear over time. No defensible spaces would be created and maintained around structures. Alternative 2 (Proposed Action): This alternative is identical to Alternative 3 except that a third phase of development would be conceptually approved. I did not select Alternative 2 because, although similar to . Alternative 3, the probability of implementing Phase III of Alternative 2 is beyond a 10 year period in the future. Phase III could have environmental changes that may require further review, analysis, and possible additional decision prior to approval for construction. The following are Alternative 2 (Proposed Action) Phase III: 1) two (2) new research telescopes, 40 to 100 inch in diameter, to be located upslope from the existing 24 and 32 inch telescopes. 2) additional research housing and instrument shop, approximately 40 foot x 80 foot and possibly two stories in height. 3) Extension of the resident manager's access road an additional approximately 200 feet to reach the new quarters and instrument shop; it would include parking lot with an estimated nine (9) spaces opposite the quarters/instrument shop for researcher parking and would be either paved or surfaced with dust abatement materials. 4) Extension of the main access road to the 24 inch telescope approximately 100 to 150 feet to one of the proposed new telescopes and either paved or surfaced with dust abatement materials. A temporary road would be constructed to the second telescope at the time of construction and obliterated and/or converted to a hard surface trail after construction was completed. Scoping The Pine Mountain Observatory Master Plan Project was listed in the Spring edition, 2002 Schedule of Projects. The Schedule of Projects, which includes the Bend-Fort Rock Ranger District of the Deschutes National Forest, is sent quarterly with the status and descriptions of new, continuing, and completed projects. Approximately 3,200 • individuals, organizations, and public agencies receive the summary of projects. iii . Scoping letters with the developed Alternative 2 (Proposed Action) were sent March 15 and May 17, 2002 to interested members of the public to solicit input into project area design and analysis. Finding of No Significant Impact Sufficient information has been disclosed in the analysis to make a reasoned choice among alternatives and no significant impacts on the quality of the human environment have been identified. Information available from past actions of similar context and intensity in this area also indicates that no significant impacts would be anticipated. Based on the site-specific environmental analysis documented in the Pine Mountain Observatory Master Plan Project EA, I have determined that this is not a major federal action that will significantly affect the quality of the human environment; therefore, an Environmental Impact Statement is not needed. An analysis of the cumulative effects of the planned resource activities indicated that the combined effects are environmentally acceptable for soil, water and all renewable forest resources. Based on the analysis, I expect only short duration adverse impacts and long-term favorable impacts from implementation of this alternative, Alternative 3. All adverse impacts are limited in scope and intensity and can be considered minor. This determination is based on the mitigation measures designed into the selected alternative and the following factors: (1) Beneficial and adverse direct, indirect and cumulative environmental impacts discussed in the EA have been disclosed within the appropriate context and intensity. No significant effects on the human environment have been identified. There will be no significant direct, indirect or cumulative effects to soil, water, fish, wildlife resources, inventoried roadless areas, stands of trees that display late or old characteristics or other components of the environment. (2) No significant adverse effects to public health or safety have been identified. (3) There will be no significant adverse impacts to wetlands, wild and scenic rivers, prime farmlands, old growth forests, range and forestland. No significant effects are anticipated to any other ecologically sensitive or critical areas. (4) The effects of implementation of this decision do not rise to the level of scientific controversy as defined by the Council of Environmental Quality. (5) Based on previous similar actions in the area the probable effects of this decision on the human environment, as described in the EA, are well known and do not involve unique or unknown risks. (6) This action does not establish a precedent for future actions with significant effects, nor does it represent a decision in principle about a future consideration. (7) This decision is made with consideration of past, present and reasonably foreseeable future actions on National Forest land and other ownerships within potentially affected areas which could have a cumulatively significant effect on the quality of the human or natural environment. I find there to be no such cumulative significance. (8) Based on the pre-disturbance survey and record search of the project area, the project proposal will have "no adverse effect" (as defined in 36 CFR 800.4 (b)(1)) on any listed or eligible cultural resources. (9) The biological evaluation and assessment for the area indicates that the proposed project will have no significant adverse impacts on any proposed, endangered, sensitive or threatened plant or animal species. Should any endangered or threatened species be found following the implementation of the project the environmental analysis will be reviewed and revised if necessary. IV (10) This decision is in compliance with relevant federal, state and local laws, regulations and requirements designed for the protection of the environment. Effects from this action meet or exceed state water and air quality standards. Other Findings This decision is consistent with the goals, objectives and direction contained in the Deschutes National Forest Land and Resource Management Plan (Forest Plan) and accompanying final environmental impact statement dated August 27, 1990 as amended by the Regional Forester's Forest Plan Amendment #2. This decision is in compliance with Executive Order 12898 "Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations". No minority or low-income populations will be disproportionately affected from implementation of any alternative. There is no habitat within the planning area that is classified as "Essential" for anadromous fisheries. As classified by the Deschutes National Forest Land and Resource Management Plan, no inventoried (RAREH) roadless areas exist within the Pine Mountain Observatory Master Plan Project area. The nearest roadless area (RAREII) is within the Newberry National Volcanic Monument, approximately 25 miles southwest of the planning area. A 30-day notice and opportunity for comment was published in The Bulletin on February 25, 2004 and placed on the Deschutes National Forest Website. The preferred alternative was identified. This decision is subject to appeal pursuant to 36 CFR 215.7. Any written appeal must be fully consistent with 36 CFR 215.14 (Content of an Appeal). Appeals can also be filed electronically at: appeals-pacificnorthwest-regional-office@fs.fed.us. Electronic appeals must be submitted as part of the actual e-mail message, or as an attachment in Microsoft Word (.doc), rich text format (.rtf), or portable document format (.pdf) only. E-mails submitted to email addresses other than the one listed above, or in formats other than those listed, or containing viruses, will be rejected. It is the responsibility of the appellant to confirm receipt of appeals submitted by electronic mail. Two copies of a written notice of appeal must be postmarked and submitted to the Regional Forester, Pacific Northwest Region, P.O. Box 3623, Portland, Oregon, 97208-3623 within 45 days of the date the legal notice of this decision appears in The Bulletin. For further information, contact John Davis, Bend/Fort Rock Ranger District, 1230 NE Third, Bend, Oregon, 97701, (phone 541-383-4714, email jrdavis0l@fs.fed.us). ESLIE WELDON ,:_Jorest Supervisor S ate v Pine Mountain Observatory . Pine Mountain Observatory, located 34 miles south and east of Bend, Oregon, is operated under the auspices of the 'hysics Department at the University of Oregon included . Its primary function has been night stellar observations. This has basic and advanced scientific research. The facility is also available to the public from late May through September, on Friday & Saturday evenings. The Friends of Pine Mountain Observatory (FOPMO) furnish weekend educational tours of the night skies. Group and organization tours are conducted by advance appointment during the week. Mid week, the observatory staff conducts tours in conjunction with various amateur astronomers including several astronomical clubs from around the Pacific Northwest. In addition to the astronomy many visitors to the area utilize the adjacent campground for a number of recreational activities. Some of these activities are, bird and wildlife watching, mountain biking, hang gliding, hiking and horseback riding. Schools, Scouts and other outdoor programs like OMSI utilize the area for earth science classes in conjunction with the evening astronomy programs. The summer program provides educational tours of the night skies for 2500-3000 visitors annually. Purpose of Report This plan is being submitted for the approval process to develop additional facilities and improvements to the Pine Mountain Observatory Complex. The plan will outline the location, design type and footprint of the proposed improvements and additions. This project pre-design will include overall goals, design characteristics, site condition, activities (current and projected), and site modifications. The actual design and exact architectural specifications have yet to be completed by the University of Oregon. The plan will establish criteria for discussions, evaluation and review of the actual construction. Detailed building plans for each structure and improvement will be submitted for approval prior to actual construction. A History of Pine Mountain Observatory The story of Pine Mountain Observatory begins with U of O Professors Dr Russ Donnely and Dr E.G Ebbinghausens' search for a suitable dark clear sky observing site. A quest started in the early 60's. Ebbinghausen completed and transported his first observing platform, a 15-inch Cassegrain telescope, to the east side of the cascades atop Cache Mt. n the summer of 1963. This location, suggested by Phil Brogan, amateur astronomer and Bend resident, was a giant step up from the cloud and light polluted Eugene urban area where the 15" scope had sat idle the previous 10 years. Dr. Ebbinghausen's goal that summer was to determine the weight, temperature and orbital period of the individual stars in binary star systems. He continued summer observations in the Sisters area until 1965 when he began searching for a more permanent site further east to get out of the Cascade Mountains' cloud shadow. Ebbinghausen discovered the current site of the Pine Mt. Observatory in 1965. The work of securing permits and funding for PMO began in 1966. The Boller & Chivens 24" telescope was installed in the summer of 1967 and the original 15-inch scope was placed on the site just down the hill from the 24" scope in the summer of 1968. In late 1967 power was brought to the site via underground cable from the Bradetich well, 20,800 feet down the mountain. Central Electric Cooperative donated the cost of the electrical line installation. U of O Physics Chair Russ Donnely was instrumental in locating funds for the on site observatory projects. Money to build the observatory came from many different sources. NSF, U of O building funds, private business, charitable foundations and individuals in Central Oregon and throughout the state. PMO's open door policy to the public began from the moment operations started. This open door policy to the public is one of the main reasons PMO has continued to operate through all the economic hardships these past 30 plus years. In June 1970 Professor James C Kemp with an electronic device attached to the 24" telescope called a polarimeter discovered the first circularly polarized magnetic white dwarf star. Astronomers had theorized the existence of this stellar phenomenon in the late 50's. This discovery on Pine Mountain proved the existence of these up till then theoretical objects. The discovery put Pine Mountain Observatory in the spotlight of the astronomical community and won a Nobel Prize for Dr Chandrasekhar, the scientist that first theorized the existence of these types of objects. Research continued at PMO. Funding for the work was always short and there were many times the observatory's existence looked bleak. The money was always found however, more often than not at the 11d' hour. Visiting the observatory was a popular outing for a growing number of Oregonians in the 1970's. In the spring of 1977 a new telescope came to the mountain. The observatory got a 32-inch scope to add to the existing telescopes already in place. The PMO site during this time was touted as one of the darkest observing sites in the e.ontinental US. Even today the site is still in that category. the public education program. As research increases the need for a new public educational facility is becoming more and more necessary. The proposed building would give PMO a place apart from the research area to conduct lectures, operate a gift shop, • create a new outdoor viewing area/amphitheater, allow better ADA access and provide a display area for education and xhibits about current astronomical events. CURRENT FUNDING PMO is funded through a variety of different sources. U of O Facilities Services budget provides one full time manager position. They also provide funds for exterior building and grounds maintenance, power, water and basic telephone service. The U of O Physics Department funds one part time researcher and occasional summer students to assist in research. The part time research position will become a full time position as research increases. The director of the observatory writes grant proposals to fund research and educational outreach programs. National Science Foundation and NASA are major funding sources for these programs. The Friends of Pine Mountain organization raise additional monies and volunteer as staff for the weekend summer program. FACILITY IMPROVEMENT AND LONG RANGE FUNDING The College of Arts and Sciences is working towards raising the capitol to fund the proposed Public Education improvements. In addition to the funds for building upgrades monies will be raised and an endowment created to provide operational budgets for the new educational building. LAND USE GOALS 0 Separation of the public education program from the research. PMO was founded as a research facility. Over the years public interest has grown and the observatory needs to provide facilities where the public outreach and education can continue with minimal interference with research. Lectures and astronomy programs are currently being conducted in our 32" telescope building. The 32-inch dome is to small, full of delicate scientific instruments and not ergonomically set up for classroom use. Upgrading of the water system, power lines and sewage systems. Tree removals from observatory grounds to create fuel breaks and restore the views from the telescopes to as close to 1967 views as possible while protecting the green tinged paintbrush sites from disturbance. Minimize light pollution problems from the campground and parking areas. Improve the surface materials on roads and trails to minimize dust. The proposed additions will bring the facility into the 21' century while protecting the natural landscape and observatory. Pine Mountain offers a unique experience for visitors to enjoy quiet natural wooded scenes and wildlife along with unspoiled panoramic views of the Central Oregon High Desert and the night sky. The areas adjacent to the observatory offers educators an outdoor classroom environment for school groups to study the earth sciences during the day in addition to astronomy at night. The proposed additions and improvements will help funnel visitor activities to appropriate walkways and buildings giving them areas to enjoy the PMO environment while allowing research to continue with minimal interference. P Phase 1-5 years This phase will deal mainly with upgrades for public visitation and site management. Removal of the trees on the observatory grounds as specified to restore the telescope views to what they were when the observatory was installed in 1967. Proposed improvements, the construction of an approximately 3000 square foot educational facility. The building would have two telescopes attached at either end. The 15" scope and storage shed would be removed and the area around it would be leveled to construct the new educational center. W T ie educational building would house an auditorium to accommodate 50-100, handicap accessible restrooms, kitchen ea, a display gallery and gift shop. In addition to the re-installation and upgrade of the 15" telescope another scope, 2,0"-24" in size would be placed on the other end of the building from the 15". This building would move the public from the 32" building to a facility much better designed for our public programs. These new telescopes would have the capability of remote operation from any computer terminal with Internet access. This remote capability will allow the • Distance Education outreach to expand without an increase of visitors to PMO. To the south of the educational building would be a viewing and amphitheater area for astronomical observing and outdoor programs. This would be an area where clubs and other amateur astronomers could set up their equipment. The amphitheater seating area would provide visitors an excellent place to sit and view the dark skies. Currently the area used for viewing is adjacent to the 24" telescope. Moving the public to this new site will allow scientists to utilize the 24" for research again and give the public place to view that is separated from the research. Building of a WX 16'X12' shed in the "sandbox" site south of the manager's residence. The building materials would be metal with a concrete floor. This would replace the shed removed for the educational building construction. The addition of a 4-meter radio telescope in the disturbed ground adjacent to the 32" telescope. This site would be a temporary location for this system. The dish may be moved if it impedes with the viewing ability of the educational building or amphitheater/viewing area The parking lot design would be expanded and narrowed to keep headlights pointed away from the observatory. Visitors would enter a one way access at the point where they come up to the observatory. They would park with their headlights pointing away from the facility and exit at a point below the road to the campground. This change would keep headlights form shining towards the observatory and allow expanded parking. Trails and parking areas would be paved or be made of materials that would minimize dust. F'ower, and electrical upgrades to the astronomers quarters and caretakers housing would be done during the construction. Upgrades would be done in the same areas where the lines are currently in place to minimize ground disturbance. See Attached Maps. The installation of a backup electrical system located adjacent to the power box coming up from the valley. This system would be installed with the assistance of Central Electric. The power supply would be from a 250K backup generator powered by propane or diesel. The dimensions of the building would be approximately 10'X 12"X 12'. 2'd Phase 5-10 years Phase two deals mainly with upgrades to existing buildings. The astronomers quarters were installed in 1967 and are need of updating and expanding. To minimize impact to the area we would remove the existing building structure 'n to the concrete block shell. Then re-design the building to a two-story building. The first level would have 1 throom, a large kitchen, library and dining area. The second story would be sleeping quarters for 15-20 and a second bathroom. This upgrade would double the size of the building while staying within the original footprint. Also, the current septic system would not need to be upgraded since we would not be adding any more restroom facilities to the existing structure. Expand and pave the staff parking area located in front of the astronomers housing to accommodate up to 10 vehicles. The caretaker's residence, installed in 1971, is also in need of upgrades. The existing building would be removed and replaced with another modular structure or possibly a stick built building. The original site and septic system of the caretaker's residence would be used to minimize impact to the area. The observatory needs a garage/shop area to store equipment and work on projects. The location of this structure would be adjacent to the caretaker's residence. The building would be single story and no larger than 30'X 40'X 18'. Construction materials would be cement block or metal with a concrete floor. Exact building location would be subject to Forest Service input and approval. Finally, we would finish upgrades to the existing trails and roads on observatory grounds to hard surfaces. This would minimize dust and allow for better handicap access to the facility. r Phase 10-20 Years This phase would address the future needs of research at the observatory. Approximately 4 acres of land would need to be added to the current 4-acre site. The upgrades would consist of at least two new telescopes 40 -100 inches in size, an instrument shop and additional researcher housing. It is understood development this far in the future coupled wit h the need to add more land to the lease would require that another EA be done. • OVERVIEW.- WALKWAYS • Walkways to access the various sites have been plotted to maintain a logical flow of foot traffic. The walkways will be minimum of 3' wide and of a surface material acceptable for handicap access requirements (Concrete/Asphalt). White mines will delineate the edges for nighttime negotiation of the walkways. Low level Red lamps will be placed at locations to help outline the walkways, for nighttime use. 'Walk and use area edges, shall be defined to confine pedestrian access and to minimize damage to the naturally occurring surroundings. Walkways will conform with Federal standards on accessibility without sacrificing minimal intrusion to the adjacent area. The cross slope of the walks shall be less than 2%. Walkway slopes should be kept below 5% whenever possible. Steeper slopes shall be kept as short as possible, with appropriate landings. Main access routes shall not exceed 8.33% slope. Appropriate guard/hand rails shall be installed where needed ACCESSIBILITY The Facility shall be made accessible too as wide a range of users as possible. Buildings open to the public shall be accessible by ramp when practical. Ensure that routes to and from major features of the facility are accessible. Provide space and barrier system for pedestrian and wheelchair access. Site furnishings shall incorporate universal design concepts for accessibility. BUILDING SITES The sites outlined on the proposed plot plans have been selected to blend with the natural topographical contours of the area when possible. The naturally occurring Plants will be maintained whenever possible. This is important for both maintaining the natural setting and to promote clear, steady seeing conditions for astronomical observations. Building practices will minimize intrusion into the natural surroundings. Vegetation will be protected whenever practical and • reestablished when disturbed. The buildings have been placed to form cohesive outdoor corridors, to enjoy the natural surroundings, while delineating those areas for activity. These active areas have been designed to define and limit public use. Vegetation will be protected whenever practical and reestablished when disturbed. ROADSAND PARKING Parking area have been outlined on the plot plans to minimize vehicle headlights pointing towards the observatory. Vegetation shall be reestablished where needed to aid in screening the parking area and enhance the general appearance. The parking areas have been selected to provide a safe and easy access. The parking area design should consider access and operation of a broad range of vehicle types. Roadway and parking areas will be surfaced with well-graded 1/4 minus gravel with sufficient fines to maximize compaction. Asphalt or Concrete may be used in the future as funds become available to help keep dust to minimum. MAINTENANCE AREA The proposed Maintenance area will be screened from view with vegetation and the natural topography. The majority of shipping, receiving and maintenance operations will be staged at this location. . LIGHTING • 411 outdoor lighting at the facility will be red. The red lights will be used to supply the minimum needed illumination to negotiate the designated public areas. White light is strictly forbidden at Pine Mountain Observatory. Light sources degrade astronomical observing and scientific sampling of the night sky. • PUBLIC RESTROOMS AND HA TER USE Public restrooms will be placed in the new educational building. They will be ADA accessible and available to the public during the evening weekend program and group tours during the week. Based on usage predictions of 5 gallons of water per visitor times the maximum visitor number of visitors, 5000 per season, the amount of water needed would be increased by 25,000 gallons during the summer. This increase in water usage is not a major problem for the current water delivery system. Based on septic system estimates from the county a 1500-gallon septic system would be more than ;adequate to handle the projected use. Over the 20-week summer tour season the increased water use would calculate to one extra load per week to sustain the indoor restroom facility. The portable restrooms that PMO secures for its summer programs in addition to the Forest camp outhouse will still be put in place during the summer. Pine Mountain Observatory is in the process of negotiating a written long-term water access agreement from the rancher at the base of the mountain. This agreement when finished will allow PMO long term access to Deep Well or Braditich well located in the Millican valley. SIGN PLAN A sign plan, which comprehensively relates information regarding the Facility, shall be provided. This is designated as the information center, kiosk. Signage throughout Pine Mountain Observatory should have clear and distinct lettering. These signs will help control visitors access, proper conduct, safety and required information. Similar sizes, shapes, colors, materials and text style should be used throughout the Facility. Colors and materials shall be part of the overall • color scheme of Pine Mountain Observatory and adjacent campground. fhe site will have proper signage to limit and restrict Public access to designated areas when not open to the Public. Signs will designate paths and usage of the facility. Restrictions for Use will also be posted. These precautions should limit unsupervised visiting. Specific areas not open to the Public, will be clearly marked Generally signs shall be constructed of rounded wood or metal. These signs shall be painted to harmonize with each other and to be legible at night when viewed with a red light. ARCHITECTURAL DESIGN The overall impression of the new structure will blend with the existing structures. The building's design should not compete with the natural surroundings. Utilize basic building designs that do not overpower the natural forested surroundings. FOUNDATIONS Foundations should be of concrete. The thickness and type shall be determined in the final architectural specifications prior to construction for a specific structure. Other foundation materials may be selected based on architectural specifications. MATERIALS Building materials shall be similar to those of existing structures. Other building materials that harmonize with the ,existing facility may he utilized. if necessary exterior wall surfaces should be painted to match existing structures. Walls .an be of cinder block, concrete or metal construction or a combination thereof, that harmonize with existing structures. PLANTS AND HABITAT • Over time and with the participation of the Forest Service, rehabilitate plants and shrubs around the. building sites. replant areas disturbed by construction and those with compacted and or eroding soils. Native Plants and shrubs shall be used to restore areas disturbed by site construction and areas, which have become disturbed through use. Every attempt should be made to minimize damage to natural surrounding habitat. Native seedlings shall be protected to ensure the future of the forest. When damage cannot be avoided, replanting must be undertaken to restore the natural scene. Salvage of existing plants, shrubs and trees should be considered as a source for replanting of the construction area. SCENIC VIEWS Scenic views will be provided and maintained in the observatory area. Current tree removal plans on observatory grounds will enhance these views in addition to reducing fire danger and restoring horizon night sky views. Plans for future tree removal on observatory grounds will be designed and implemented to maintain views at night and during the clay. CLOSING SUMMARY :Pine Mountain Observatory's research and public education programs have become an integral part of many schools and organizations curriculum. These groups are using the observatory and adjacent forestlands for a variety of other teaching environments. Classes in Geology, Archaeology, Botany, and Forestry are just a few areas that educators have expanded their visits to include. Other recreational opportunities like bird watching, hiking, mountain biking, hang gliding and horseback riding are increasing in popularity on the mountain. PMO's proposed educational facility would provide a venue for educators to provide classes for many of the above forest uses utilizing the mountain as an outdoors, hands on classroom environment. Public education stressing minimum impact on the forest community is a priority. Our programs will strive to educate • 311 visitors on informed natural resource management and conservation ethic. Additionally, we would provide visitors a feeling for natural resource stewardship through cooperative research and monitoring projects and/ or resource ranagement projects through different federal and state agencies. Pine Mountain Observatory is concerned with its public image and would like to be known as a non-biased presenter of educational experiences and knowledge. We perceive our role to be helping people gain the experiences and information they need to come to their own conclusions on natural resource management, science and technological issues. It is important that we be able to conduct educational programs successfully with all segments of society, including individuals with diverse natural resource, political, social and religious views. The University of Oregon looks forward to the continuing partnership with the Forest Service and other agencies through the operation of the observatory and campground to help provide the public with educational programs that focus on the natural resources of Pine Mountain and the surrounding area. , 0 uNTVERSIT OF OREGON Mark Dunaway Observatory 1t4anas;er Facilities Services n7arkpmoCoregou.uore~on.eciu PINE MT. OBSERVATORY Bend/Burns Star Route. Bend OR 97707 T (547) 38,2-8337 http://Pmo-sun.uo,-egon.edu Picture Descriptions 1. Hwy 20 E. Moon Pit. Hot plant and crusher pollution 2. Crusher dust @ Moon Pit 3. BLM posted sign of closed canyon due to Prairie Falcon Nesting. 4. Dry River Gorge on top of Horse Ridge 5. Top of Horse Ridge looking east. X is approximately where the proposed pit will be 6. Bottom of our driveway, looking west to the canyon where the pictographs start (to the left) 7. First part of canyon containing pictographs 8. On top of the bluff seen in picture 7, looking toward the proposed pit site 9. Rock formations, pictographs, notice the fragile state of the rocks. 10. Rock Formations in the bottom of the canyon, carved by the prehistoric river 11. Bottom of our driveway looking east toward Coyote Well. 12. Entrance of the driveway from Hwy 20 looking toward the pit. 13. Hwy 20 looking south on to proposed pit site 14. Hwy 20 heading east @ our driveway. 15. Hwy 20 heading east with turn off for Spencer Wells Road - notice lack of shoulders 16. Hwy 20 heading east - notice shoulder and ditch 17.OHV trail across from our driveway - south side of the highway 18. Spencer Wells Road 19. Trash and open container of grease can left at subject property, viewed from Spencer Wells Rd. - Landscape management corridor and previous DEQ violation regarding open oil cans etc. 20. Closed OHV trail sign across from subject property 21. Closed OHV trail sign across from subject property 22.Pine Mt. Observatory 23.Pine Mt. Observatory 24.Pine Mt. Observatory 25.Pine Mt. Observatory 26.Heading back down Pine Mt. Evans Well Ranch in the background. DAR Flying Sites - Pine Mountain Page 1 of 5 • r1 U home I email mountain pine Description • Maps • Site Guides • Photos Search This Site Description submitted by Pete Keane 2002 Search Pine Mountain is located in the "High Desert", 26 miles east of Bend. With an altitude 6407', ideal climate, over 15 launches, desert thermal conditions and ridge soaring is a formula for excellent paragliding. Depending on the amount of snow, it can be flown all year. Extreme caution should be taken when flying "Pine" during the summer. It is a desert thermal site and flying midday can be extremely hazarous to your health. Contact a local club member regarding hazards and site protocol. Launch Options Pine Mountain can almost be flown in any prevailing wind directions, but there are a few most commonly used areas. There are many other options not listed here for those who want a little adventure. FRONT SIDE o Training Hill (5200') At Millican, take a right on the road, which is marked as the way to the Pine Mountain Observatory. Drive to the "Y", which is a couple of miles in from Hwy 20. This is the first major right turn that you will come to. Follow this rocky road for less than a mile, take the first left turn, which heads up towards the mountain. Eventually, you'll come to the rock "L" parking area. This is the preferred LZ. Look to your left and you'll see a faint trail leading up to a well-cleared launch area. The Training Hill is most commonly used during the evening hours and most folks arrive sometime during the last 2 hours before sunset. Most often, this site is good for evening flying, when it is blown out during the day. So most people arrive, hike up the hill (20 min) and wait for the air to smooth out. Less commonly, but typically in the spring and fall on light wind days, the glass off builds and the best flying comes near http://www.desertairriders.org/pine.htmi 8/13/2005 DAR Flying Sites - Pine Mountain Page 2 of 5 • the end of the day, when the desert releases it heat. This launch faces NW, so look for N, W or NW winds on the surface as good indicators that the evening session might happen. On good nights, a couple good hours of flight can be had and it is commonly possible to bench up to the summit. o The Peak (6400'- 6200) Continue past the "Y", and drive up into the canyon behind the front of Pine Mountain. After a few turns in the road, look for a gate on the right that leads to the primitive road that leads to the top. Please close the gate. The hangliders built this road back in the day and it is suggested that if you have 4 wheel drive, use it, as there is less wear and tear on the road surface. At the top, you'll be looking at the west hanglider launch. It is also possible to hike around the rocks to the left and get up to a higher west facing launch, which is often referred to as the west paragliding launch. Continue a bit further to the peak and you can walk down to the north- facing launch. Weather conditions to look for when considering flying the peak are light winds from the west through north. Most flights are made in the morning or mid day. In the evening it's commonly blown out. • BACKSIDE o Southeast Bowl (6100) Continue driving up the road past the turn off to the peak and continue past the observatory. At the sharp right turn which overlooks the desert floor pull over and park. Locate a faint trail and walk out east across the hill until you see a cleared launch area. This launch faces SE and it mostly used in the morning. It offers great relief and some good features to work. The drive into the bottom to pick up pilots is somewhat prohibitive, but you can scope it out from the launch. Consider hiking back up to the car after flying. o Rip City (6450') You can also continue further east and ascend to the top of the next ridge. There is a cleared launch area here and it is known as Rip City. This is the highest launch on the mountain and can be usable in a more south or southwesterly flow. You can also access Rip City by driving up the north side of this south-facing ridge on some secondary roads and then hiking the final distance up to the top of the ridge. o Antelope (6100) Access this launch by taking the first main left turn after the Y, just after a cattleguard. Stay on the road until it swings around up to the radio towers. Park here and walk to just below the top of the next peak to the west. Here you'll find a small cleared area. This site works best in south or southwest flow. Hiking back up to the car or top landing are the best options. o Observatory (6300) Drive up to the observatory and take a right at the campground. Drive up to the towers and park. Go over the fence and down to a small clearing. The site faces southwest and tends to funnel winds and strong thermals. The hangliders frequently fly here. The landing is a bit canyonesque, so watch out. Hiking back up to the car is probably the best means of getting back. This site has a reputation for being very strong. • WESTSIDE o West Bowl This huge feature is approached by taking a right on the http://www.desertairiiders.org/pine.hbnl 8/13/2005 DAK dying Sites - Pine Mountain Page 3 of 5 • Road 23 just after descending Horse Ridge into the Millican Valley on highway 20. Drive south until you see it. Take a left on a secondary road and wind your way into the basin below the bowl. Hike up to the desired height and launch it. Land at the car. This site work well for west and southwest flow. Beware of big venturi action, as the hill tends to really funnel the wind. • Visions of the Future We were all pretty blown away the first time someone left Pine Mountain in a paraglider. I'll never forget Luke Madsen's flight from the west side of Pine to Millican. Watching him spin circles high above the desert floor in light conditions, proved that it could be done. It forever changed my perceptions of the boundaries of what was possible, and even though it was a small step, it was a giant leap into the unknown. A year or so later, Phil Pohl's flight to Millican and then to Brothers left my jaw hitting the ground in amazement. Wow, I thought, this is only the tip of the iceberg. Over the course of a few hours Phil had redefined yet again what was possible and lit the torch that lead down the trail that we would all try to follow. After a few more attempts by pilots to fly to Brothers had all come up short. Then in fine "splat" style Bill Gordon upped the ante and pushed way out there and flew a 68 miler to Summer Lake. This record stayed for quite a few years until Nate Scales spent a year in Bend, flying a 70 miler and showing us locals what it meant-to thermal with a high bank angle and how to really use the speedbar. These flights are all visionary, stretching way out of bounds of the traditional framework and clearly ahead of their time. It is with this spirit in mind that I have a few big flights that I'm sure will go in the next few years. o Bachelor to Sisters: This flight will go on a day when the winds are southwest aloft and it'll be made in the spring. The prospective successful pilot will climb out over Bachelor and fly to Moon Mountain, then Ball Butte, climb again and then into the crater of Broken Top. Here she will climb again over the massive south-facing cliff below the summit of Broken Top and have to make a decision on whether or not to make the final glide to Sisters, which doesn't have many bailout options. The fields that are outside Sisters are a solid glide from Broken Top. Cloud support would be good as well as being at about 14k over Broken Top. Minimum number of big thermals required: 5. o Bachelor to Pine: This flight will be made on a west wind day in the spring. The best, most direct out of the Bachelor area will be to climb out over Tumalo and glide to the Tumalo Falls area, where there are a lot of south facing cliffs and numerous small peaks. The Bridge Creek burn has left a lot of hillsides bare and the potential for getting up really exists. The glide between Tumalo Mt and Tumalo Falls has one bail out option in the Swampy Lakes area. The hike out from there will be about 2 hours if snow conditions are good. It is also possible to land on the road to Tumalo falls below the • cliffs and get a ride to town. Next, after climbing here, the best choice would be to go up and over Bear Wallow Butte and glide out to the Tumalo Reservoir where there are big http://www.desertairriders.org/pine.html 8/13/2005 DAR Flying Sites - Pine Mountain Page 4 of 5 • landing options. From here, fly to Awbrey Butte and over town to Pilot Butte. The remaining distance to Pine is about 25 miles, but all over the flats and many landing options. Total flight distance: about 46 miles. o Haystack Butte to Pine: This route seems perfect for the typical northwest flow that we get here a lot. This flight could happen in the fall or the spring. My vision is to climb out over Haystack and glide to Gray Butte, where undoubtedly, it'll be going up. From here it's a quick jump to Smith Rock State Park. From here, you'll have to get really high and head for Powell Butte. It seems likely that there will be a few thermals needed on the way to get there, but its not that out of the question. Once at Powell, it seems possible to get up again and strike out for Pine, arriving there at glassoff. Again a few thermals will be needed over the flats to get to the features just northwest of Pine. Another good option is to get the journey underway by hiking up Gray Butte and starting from there. o The 100 Miler. This flight is possible in Central Oregon, on the right day. The right day will be in June, a day or so after a • front has passed, with cumulous in the sky and the winds westerly aloft. The successful pilot will launch from the top of Pine and climb out. Next, he'll fly to the Moffit Ranch area and stay on the hills just south of the ranch. This will bring him into Brothers south of the highway, crossing Fredrick Butte Road. Then he'll cross the highway angling towards Hampton Butte and go up and over it north of the highway across Misery Flats. At the east side of Misery Flats, he'll work some small buttes and hill staying north of the highway. There are many small features in this area. After the features run out it'll flat land flying to Riley and beyond to Burns. After a flight like this, he'll probably want to land near the McDonald's and order a vanilla milkshake. Maps • http://www.desertairriders.org/pine.html 8/13/2005 DAR Flying Sites - Pine Mountain Page 5 of 5 K _ ~ F 1 r • Site Guides Phil Pohl (site liaison) Frankie Aspinwall George Young Photos Copyright 2002 - Desert Air Riders - All Rights Reserved [ home ] [ weather ] [ sites ] [ events ] [ members ] [ photos ] [ friends ] [ learn ] [ info ] http://www.desertairriders.org/pine.httnl 8/13/2005 Desert Air Riders - Paragliding Page 1 of 2 events • Search This Site Search Hot Off The Wire: ® Annual Pine Mtn Fly- In 0 Annual Pine Mountain Fly-In Photos 0 Jeff Huey Goes Big! 0 Style of Gravity • DAR List ® Radio frequency change home I email Aui4 ® Annual Pine Mountain Fly-In 3,4,5 Sept Don't miss the annual Pine Mtn Fly-in! It will be held during Labor Day weekend, allowing more pilots to enjoy our wonderful flying site. Don't miss the free BBQ on Saturday. Stay tuned for more details. i Annual Pine Mountain Fly-In Photos The evidence is in! A good time was had by all. Fly-In 2002 Photos Fly-In 2003 Photos Fly-In 2004 Photos 0 Jeff Huey Goes Big! Jeff Huey breaks the Oregon Record with a 111 mile flight from Pine Mountain to Princeton. Click here to read about Jeffs spectacular flight. Style of Gravity • Follow the extreme adventures of our fellow pilots, visitors and friends from Austria as they travel from Canada to Mexico, capturing rock h4://www.desertairriders.org/events.html 8/13/2005 Desert Air Riders - Paragliding Page 2 of 2 • climbing, paragliding and suiting for their exciting video. Click Style of Gravity to view their cool website. J • DAR List Share your flying adventures/misadventures, opinions, weather predictions and flying schedule. Join the DAR list and with one email communicate to all the subscribers. It is easy to subscribe/unsubscribe. To subscribe, send an email to DAR-subscribe@topica.com. Or if you are a point and click person, go to www.tropica.com/register, register and sign up for the DAR list Radio Frequency Change The DAR main frequency is 151.505. Copyright 2002 - Desert Air Riders - All Rights Reserved [ home] [weather] [sites] [events] [members ] [photos] [friends] [ learn] [ info] • http://www.desertairriders.org/events.html 8/13/2005 Page 1 of 1 mie Walker From: "Larry Chitwood" <Ich itwood@fs. fed, us> To: <tammiew@mtaonline. net> Sent: Friday, April 15, 2005 2:43 PM Subject: Sound in layer of cold air Tammie, This is a follow-up to our discussion this morning (15 Apr 05) about the effect of a layer of cold air on how far sound can travel. The volcanic ash soils of central Oregon, especially those from the 7700-year-old eruption of Mt. Mazama, have an unusually low density due to the fact that they're largely made of small pieces of pumice ("volcanic styrofoam"). The low density allows these soils to rapidly cool down when the sun goes down and when no clouds are in the sky. These soils radiate their heat into outer space. The overlying air loses its heat to the soil and every night develops a cold layer that hugs the ground. The layer can be a few feet to tens of feet thick. When the sun comes up, the soil heats and the cold air layer disappears. Sounds made within the cold layer tend to stay in the cold layer due to reflection of sound along the top of the cold layer. The effect is that sound travels much further over the land than when no cold layer exists. • (In mathematical terms, sound attenuates proportional to roughly the square of the distance in the cold layer, but attenuates proportional to roughly the cube of the distance with no cold layer.) Larry • Larry Chitwood, Geologist, Deschutes National Forest, Bend, OR 97701 lchitwood fs.fed.us, Phone (541) 383-5618, FAX (541) 383-5531 8/8/2005 • Objections Conflicting, inaccurate information between the staff report, the Burden of Proof and the Operating & Reclamation report of the proposed site. Goal 5: Open spaces, Scenic & Historic Areas and Natural Resources Goal. There has not been an archeological impact study done. The Dry River Canyon, Coyote Well and other cultural sites need to be protected. Currently zoned EFU - HR, the horseridge area is not agricultural in the sense of Madras or Culver, hence the EFU-HR zoning. Mr. Webster defines the word exclusive as excluding all others; not shared or divided; excluding certain people as far as social or economic reasons. According to DOGAMI(Dept. of Geology and Mineral Industries) 4R equipment did not have a permit to drill over 50, a requirement by their department. The Staff Report • Page 6 of the staff report The basalt rock easily exceeds ODOT standards the sand & gravel pit." Currently owned by 4 P. equipment is located on Hwy 20 E horse ridge area is rated as good by DOGAMI. There are other sources available in this county and neighboring counties that easily exceed odot requirements without having to destroy the Millican Valley or the surrounding historical sites. Page 9 Current uses, "except for the applicant's mentioning of a "a small recreational site west of the property there appears to be no dwellings with in the 2 mile radius o the proposed surface mine boundary. "Staff visited the site and drove around the area and no structure was observed or apparent in the-! mile impact area. Except for our structure, Coyote Well 4 mile from the site and the Canyon that has the Indian pictographs in them. Conflicts due to noise and dust Our home (structure) is located with in • the 2 mile, the dust from the drilling and blasting, the noise from the crusher, and truck traffic will effect us. Sound carries very well in the .l valley. We can hear dogs barking 7 -8 miles away. WE will definitely hear the jake brakes of the trucks making 150 trips a day in front of our house. Because of the position of our home to the site there is no way to minimize the above conflicts except not to have them there. Page 11- 12 Section 8 & 10 The antelope. Mule deer and other wildlife inhabit this valley year around. BLM has designated this area as well as our property as sage grouse nesting area. This area is heavily used during the migration of the grouse to West Butte. The county has a WA overlay on the most of the valley for these reasons. Page 12 Landscape management Combing Zone. The 25 ft stockpiles will be visible from our home, driving on Hwy 20 and Spencer Wells rd. This operation will significantly change the topography and the view. They have proposed 600 ft buffer from Hwy 20 and Spencer Wells Rd, however the ordinance states this should be 1320 feet. The statement that there are no dwellings and no other identified noise and dust sensitive uses. Is false The statement that there are also no agricultural uses in the area is false. There is grazing by cattle, we have dry land rye growing and you can see our pasture on Mr. Robinson's aerial photo Page 13 Findings under section c. There are many objections to this zone change. There are dwellings that are sensitive to the dust and noise. There is wildlife year around that constantly use this land. Even more so in the summer than the winter because of the natural water seep that exists on the property. There are historically and archeological sites that have to be protected.. The • noise and dust will also impact the Pine Mt. Observatory. ~I Page 16 - the start of the ESEE Section 2 findings Identifying conflicting uses. Our residence with 2 mile, the Canyon with the pictographs and Coyote Well. Page 19 Section 5 Findings - The surface mine as # 498 in not on DOGAMI's map. According to Robert Houston of DOGAMI it is no longer in use. This was a borrow pit this was for smaller than Q's proposed pit. Meaning very little activity and was used a long time ago. The ESEE study for this is not comparable for the proposed site. This pit is over a mile from this propose site, it is behind a ridge, not visible from Hwy 20 and was not a threat to the canyon or coyote well. "The staff believes that the finds for the resource and conflicting uses and the balancing of these resources will be essentially the same". "Staff believes the aggregate resource is important to the county and region, • especially given the quantity and quality of the resource." Is this pit more important that the possible destruction of the canyon walls with the pictographs on it? Or of the cave in of the historical Coyote Wells? Or heaven forbid the quality of life of the residents. How many pits does the county need? Page 21 State Wide Planning Goals # 3 Findings on the Citizen Involvement Goal I - citizen involvement - was not met. We were not notified, the goal states ""the Citizen involvement program shall be appropriate to the scale of the planning effort" Notifying everyone within 750 feet of the property is not appropriate for rural lands, our nearest neighbors are 7 miles away the corner of our property is with in a mile of the proposed site. The posting notice was on Hwy 20 E. The address for this is listed as Spencer Wells's road. The access to this pit is also listed from Spencer Wells Rd. Not Hwy 20. # 3 - agricultural Lands. 61 Reports states very little if any farming has taken place. This valley has been used for centuries for farming. Dry land rye, sheep, and cattle have used this valley. Cattle now are the prominent farm use. #9 Economy of the state. "The use of the aggregate resource on this site will assure an aggregate source from many years into the future". By allowing this zone change, the citizens may have more gravel for there roads, but they will have destroyed something even more valuable. The Dry River Canyon with the pictographs, the view you get when you are coming from Bend cresting Horseridge leaving civilization behind, will be a view of crushers, stockpiles, dust while dodging more Trucks. Coyote Well and other cultural sites in this area and the loss of Pine Mt. Observatory. These cannot be replaced so how can this rock pit benefit the citizens of Oregon? The only one to benefit from this will be 4-R Equipment. #Page 26 Rezoning Standards. • Section K - Surface Mining shall be prohibited in critical and sensitive resource areas. The county, Oregon Fish and Wildlife and the BLM has previously designated this land WA wildlife area for Antelope and sage grouse. The proposed site would be in the middle of the WA zone. The value of this aggregate is not more important than the uses of the wildlife life and historical areas. a~~ - adr CJP- q77U/ Burden of Proof - Page Two Findings of Fact (d) "The nearest residence is 8000 feet away to the south and west o the property. US Highway 20 runs through the property itself. All of the proposed activity would lie south of US Hwy 20" * Our property and structure is 2 mile northwest from the proposed pit. However, the Operating and reclamation plan stags 1 mile or 5280 feet. Page three "There will be a pond for water storage for dust control" * Reclamation plan states there will be no pond or water storage Page eight "Volume calculations to depths of 100 feet & beyond are readily support." . * Any drilling over 50 feet requires a permit from DOGAMI. As of April 19, 2005 there is no permit on file and as late as last week $R equipment was drilling and what appears to be blasting that took place. Page nine "Basalt common to the lower elevations such as in the Bend area are related to much more recent flows.... This resulted in promoting a hard, but poor durability rock less suited fro demanding uses such as a road building aggregate." * This rock has been used for years around the central Oregon area. It is rated as good to excellent by ODOT. Page ten Findings - "As indicated above there is a state rock pit approximately 2000 feet from the property line adjacent to US highway 20." * This is a state owned cinder pile brought in to spread on the icy roads. This is not a pit but a stockpile. • Page eleven Findings: "Three potential conflicting uses within the impact area identified by the rule would be US Hwy 20, Deschutes County Rd #23(Spencer Wells Rd) and the one recreational site lying west of Spencer Wells Rd & just west of the proposed project." * Our home, the Dry River Canyon with the pictographs and Coyote Well are 4 mile away. Page Twelve "There will be a pond for water storage with a pump for dust control" * According to the reclamation & Operation plan that was submitted to DOGAMI, there is no plan for a pond or water storage. "Owners to the adjacent recreational site has expressed to the applicant that he has no objection to the proposed mine." *They testified on Feb. 15, 2005 against it and wrote a letter indicating the same. • Page thirteen "Although, there was no finding of any sage grouse on the subject property. Applicant agreed to restrict access to the property to one road." *This area including a portion of our property is designated as sage grouse nesting area. Sage Grouse are still on the "sensitive" list of birds therefore, is in direct violation of Goal 5. Also,.4Requipment will have more than one road because of the trucks going in and out of the pit. There already appears to be more than one road on the subject property. "There are no other conflicts" * The conflicts that have been identified under section (b) above would be as follows: 1) Vacation residence located west of Spencer Wells Rd - part time residence. Our residence is occupied full time, the canyon with a documented • archeological site and two wells. One personal and the other historical. These are located within z mile. • Page fourteen Part-time residence. "The owner has expressed that they have no problem with the proposed site plan" *They have objected as does Clay & Tammie Walker. Part time or full time residence should not matter. Page fifteen Findings: "Applicant would submit that there are no significant conflicts identified that cannot be minimized with appropriate conditions imposed with site plan approval." *There are SIGNIFICANT conflicts with our home. The canyon and the wells. Not to mention the noise, dust and increased traffic hazards. Page seventeen Findings; "Proposals to minimize the identified conflicts have been proposed for • the impact area within 1500 feet of the subject property.- * Walker residence, Dry River Canyon and Coyote well. There have not been any proposals to date that are satisfactory for the conflicts of dust control, sound destruction of the view. Blasting damage to the canyon and to the wells. Page seventeen Traffic impact study: * This study did not include the safety of a turning lane or wide shoulders or the school bus stop at the cinder stock pile. With no shoulder, vehicles have rolled over or gotten stuck in the soft dirt. There is no where to safely off and be safe, especially with one truck coming at you and the other trying to turn off on Spencer Wells road, Operating & Reclamation plan to DOGAMI Page one section 4 - Operating Plan - section e 4770 "Distance to closest structure not owned by Permitee" lmi le • Our home is 2 mile Section f - Disposition of removed vegetation - hauled away to an approved burn site. *BLM would like 70% sage brush left on private and,public lands. There is no fire protection out here and so there should be no burning. Page two -section n - What will be minimum property line set back? For the excavation - 500 feet For processing or storage - 400 feet. * The county's Landscape management overlay states 600 feet. Section 5 Resources Protection (WRD) "Process water contained on site - no Storm water contained on site - no • Pond used to contain water - no *Applicant stated that water would be used to keep dust down. If not the above sources then where is he getting the water. Page three question 6 - Ground Water information Section e "Distance to closest well outside permit boundary - 1 mile *Coyote Well is.,-41 mile and our domestic well is .2 mile. Page four question 7 section a Does a natural land for or vegetative screen currently exist along the. ermit boundary? -yes g p *What screen? It's in the flats! There are no trees; the only screen is the portion of the dry river canyon that runs through his property. Look at the pictures he has submitted. Page 5 question 13 - Reclaimi ng. procedures - land shaping --section I No net loss of habitat. *The winter range land. for.the_antelape_will.be_ gone,.the_antelo.pe nay not come back since the expected .life-of. this. pit.is along time..TherE_wa11_be the loss of the sage grouse. nesting..area_-too. Once again, these responses-. look-as If .they .lhavebeen -copied from another application. There are tvuo.many..differences.between the 5tzff..report., the Burden of Proof and this Reclamation and Operating Plan. • Hearings Officer Site Visit Report ~k~ C~(L " 9Tk)1 D - Z3 There is no mention of Coyote Well on this visit. I am aware that Pat Kliewer was not able to attend this site visit but) with Paul being the planner that started the ball rolling with this project, he should have been able to look at the map4Ae has access to find this. It is directly west if you are standing in the bottom of the driveway. To the east is the Canyon, turn west, the well. Why wasn't the observatory visited? It is not open for visitation however it is open to drive up there to see the landscape and the view of the proposed pit. • o ab, &,k , --9-T74 r 4 Upon learning of the proposed gravel pivI have been very busy gatherin information to stop this project. This isn't a personal attack on Ron g Robinson or 4R equipment. This is about protecting our property. Not just our home, but the Dry River Canyon and Coyote Well. While I have not personally worked at a crusher or hot plant, my husband is a superintendent of asphalt plants and rock crushers and both of my sons work in this business. After being married 21 years, I've picked up a few things. The damage done by having a rock pit with a crusher is not something you just fill in and then it all looks OK. It lookssmells and sounds bad. There is no way to camouflage that especially since it would be on flat ground. According to Central Electric Co-op, 4R Equipment has not applied for power. Since three phase power ends at Dodds Road or at Moffitt Rd, miles from this site, the only choice would be to use diesel generators. Moon pit uses those because of the cost of trying to get power. This is a whole other level of noise that hasn't been addressed yet. After talking to Larry Chitwood from the USFS, he explained to me the difference of where we live compared to other areas. Since our soil is pumice and ash it is very light and looses heat very rapidly. When the cold air comes down in the evening or morning, this traps the sounds. Cold air many times--will move to where water was, so since this was a lake bed, the sounds do resonate more loudly and often. The sound waves go in all directions and bounce back again because of the ridges. The sounds will stay in the valley area. That is why we can hear Nash's dogs bark 7-8 miles away! Running of equipment and generators etc will be amplified because of this cold air and heated soil. The hours of operation of 7:00a.m. to 10:00p.m. will be noticeable, no matter how deep a pit you put the crusher in. While this proposal make great sense to Mr. Robinson, the proof that the county needs this rock has not been proven. What has been proven is that 4R equipment needs this rock. There are 168 rock pits on the DOGAMI inventory list. The statement that all this rock is bad is not true. It meets ODOT standards for rock. The roads are in the shape they are because of several things. The rock being a small part of it. It maybe the mix design the state has used or the fact that traffic in Deschutes County has increased and studs rally do tear up the pavement. By saying this rock is • hard and exceeds ODOT standards is probably true. A out of a prehistoric river/lake bed. y After all it does come There are several things that show 4R Equipment, 2R equipment or Jack Robinson's & Sons' are irresponsible and can cause irreversible damage. The DEQ violations which I submitted last hearing the inadequate traffic study, discrepancies with the Burden of Proof Statement and Reclamation & Operating plan. There is the DOGAMI permit that as of yesterday had not been issued. Drilling and blasting as late as last week done on this proposed site and, co May 10, 1999, without notify the neighbors or the airstrip and not taking reasonable precautions, 2R equipment conducted a blasting at the Willow Creek Quarry, in Jefferson County. This blast was so powerful that 1001b boulders landed in two plaintiffs' yards. These two families did file suit and this case was settled out of court. Not only was there damage done to their property but because of the stress of being home when this blast happened, a woman miscarried. Part of this suit was also for trespassing. Employees of 2R equipment entered on to personal property, removed top soil to level the property. . Removed shrubs and trees for the purpose of constructi road or a platform to facilitate the blasting and removal of the r ock form the quarry. They did not ask permission to do this nor was there permission granted: 4R equipment also placed employee look outs and a seismograph without permission. Because of this damage the plaintiffs have to disclose by ORS 105.465, the material defect and condition of the property that was showered with the rock. The plaintiffs' ho es are located 4 to a mile from the quarry. This proposed pit imuch ` to Hwy 20 and to Spencer Wells road. Our home, the canyon and Coyote well is closer thane that. I talked to people along that rim of where the Willow Creek quarry is. They say they can hear the equipment and see the dust billowing up in the air. This quarry is in a canyon, not on the flats like this proposed pit is. Money can fix the landscaping and the violation of the trespass but it cannot replace the fear that women felt or the end result of that fear and stress. Things happen, not intentionally but this needs to be look, it only takes one blast and because Hwy 20 is so close to this proposed site, lives could be lost, archeological sites destroyed, historically cites safety and property destroyed or compromised. damaged or persona! The tape that is submitted is a short film made by Ed Park, the previous owner and a writer, Wilson Wewa Jr and an archeologist from the Confederated Tribes of the Warm Springs. Wilson talks about what this canyon means to the tribe and how it should be protected. The wildlife map from BLM that shows, in color the nesting area of the Sage Grouse has not been properly addressed by the applicant. This bird has been placed on the sensitive list by the US Department of Fish & Wildlife. Based on all the information that has been presented, Goal Five has not been met. This pit will not protect the natural resources and conserve scenic & historic areas and open spaces. Clay & I have submitted a letter to the Deschutes County historical planning department a letter stating we are in the middle of the application to place the Dry River Canyon and Coyote Well on the National Register. The Burden of Proof Statement and the Reclamation& Operation submitted to DOGAMI have conflicting information. These documents look as those they have been copied from other documents. The applicant's -response to the traffic on Rickard Road is " we just won't do it" Every real concern, with it's the shoulders of the road or the concern of the ground water have not been met with any evidence to back up his statements. I urge you to look at all the material submitted and deny this zone change. A rock pit in the Millican valley, on this proposed site is not appropriate. hl QoE 'Date: August 23, 2005 To: Board of County Commissioners From: Keith and Janet Nash Evans Well Ranch 25700 Spencer Wells Rd. Bend, Or 97701 Re: Testimony regarding surface mine in the Millican Valley for 4R Equipment I would like to thank the commissioners for hearing this matter today. The previous two hearings were well attended, with significant opposition to this project across the board. My husband and myself are opposed to the surface mine for numerous reasons you will hear today. I will limit myself to the areas I am most familiar with, agriculture and wildlife. Horse Ridge subzone has the most stringent EFU zoning in Deschutes County: 320 acres. Deschutes County stipulated this large acreage requirement to protect agricultural interests, primarily ranching, in the Millican Valley. It is a large and valley, suitable for livestock grazing.' The subject parcel has been grazed, in a rest/rotational grazing system administered by the BLM. Since the parcel wasn't previously fenced, it has been utilized as part of the adjacent allotment. • When we first began grazing cattle in the Millica n Valley in 1995, several of the neighboring ranches were vacant or for sale. This is not the case today, all of our neighboring ranches are occupied and in production. BLM maintains a waiting list of ranchers waiting for vacant allotments.2 Beef cattle is the second largest income producing agricultural commodity in the state of Oregon.3 The current zoning configuration protects these ranches from development pressure. The large contiguous tracts of land these ranches provide are very important wildlife habitat. The water they provide is crucial in the desert environment. Ranchers provide open spaces and quality food; the public wants open spaces and quality food. The recent decision by the US Fish and Wildlife Service NOT to list the sage grouse as endangered was made in part because of proactive work by State agencies and private landowners to enact a region-wide conservation plan.4 A major part of this plan addresses habitat loss, fragmentation and degradation of sagebrush communities. This surface mine would be a direct contribution to that loss. The largest identified sage grouse lek in Deschutes County is 1.25 miles away, nesting sites have been identified closer than that. Sage grouse are highly sensitive to disturbance and will abandon traditional areas of use when disturbed.' The introduction of a 485 acre strip mine would drastically alter the valley. It would no longer have the characteristics of exclusive farm use. Other mines would logically follow. Goal 5 would not be met. Impacts on our ranch would be long lasting. Aside from noise, dust and a degraded quality of life, I can see two other impacts. When wildlife suffers, we will pay. Grazing is highly monitored. If grouse or antelope or any sensitive species decline, we face further grazing restrictions. It has happened to us in the past. The cause doesn't matter: we will be effected. And if industrial development gets a foothold in the valley, other development will follow. EFU zoning will be sacrificed in the path of progress. Our ranching operation and all it provides will be directly threatened. Mr. Robinson's expert witness testified Eastern Oregon is solid basalt from the California border to the Oregon border. If this is this case, surely Mr. Robinson can find a location with fewer conflicts to blast and mine. The Millican Valley site is the wrong place for a strip mine. Many people are anxious to testify today. To tell you why this is the wrong place for a strip mine. I will defer to their more expert testimony.. I would like to enter my remarks from the last two hearings for your consideration. ` Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 2 Upper Deschutes Resource Management Plan and Environmental Impact Statement, Bureau of Land Management, Prineville District Office., January 2005 3 Oregon Department of Agriculture, 2004 Agricultural Statistic Table, Oregon Blue • Book 4 Oregon Department Fish &Wildlife, the Oregon Sage Grouse Conservation Plan, Adopted Aug 2005 5 BLM Report: Sage Grouse in the High Desert of Central Oregon, 1994 6-~32 • April 20, 2005 Thank you for the continuation of the Feb 15 hearing, and the chance to expand our testimony tonight. At the previous hearing, the size of the audience and the extent of their testimony demonstrated not only the legal controversy surrounding this application, but the emotional investment Deschutes County residents have in the Millican Valley. The subject property needs to remain in its present zoning configuration. As stated in Chapter 18.16 Deschutes County Code (DCC) the purpose of EFU zones is to preserve and maintain agricultural lands and serve as a sanctuary for farm uses. Uses permitted outright 18.16.020 (L) includes wildlife habitat conservation and management plan approved under ORS. As a working rancher in the Millican Valley, I can testify to the unrelenting regulation we are subjected to. Every species of wildlife in protected and considered. We cannot graze a blade of grass or feed a flake of hay without first analyzing the consequences. As Deschutes County is becoming highly developed, the habitat for all wildlife is shrinking. All of the species surveyed in the Hostick • report have federal status as a species of concern, in need of protection. The Sage Grouse conservation plan identifies habitat loss, fragmentation and degradation as the major cause of the decline in grouse populations. No conclusive evidence was presented in the 4R commissioned study. Strong anecdotal evidence exists for burrowing owls, a sage grouse nesting site has been identified, and ODFW has found pygmy rabbits in the Millican Valley. The landscape Management Zone setbacks are not met in the proposal. The mitigation the applicant proposes, berms, will do little to shield the pit from view from most of the valley. The visual impact zone is much greater than V2 mile. This location is completely out of character with the surrounding landscape. No amount of mitigation will disguise its inappropriate location In talking to neighbors in the Valley about this proposal, I heard one comment again and again, if this mine gets approval, more will follow, the valley will be developed, all the EFU, WA zoning will be meaningless. The large ranches will be subdivided, developed and sold. One neighbor that has not been heard is the BLM. They did not respond to notification. As a government agency, they avoid private land issues. The recent • Upper Deschutes Resource Management Plan does identify their vision for the Millican Valley. It is one of refuge, for wildlife and the recreationalist. As the largest Landowner in the Millican Valley, their voice should be heard. An Off Highway Vehicle (OHV) race is scheduled this weekend on the East Fort Rock trail system in the Deschutes National Forest. Over 600 paid entries have been received. That translates to well over 600 vehicles using Spencer Wells Road as access to the Forest, and at least 1200 people driving by the site. A high percentage of these people are from out of the area, spending thousands of dollars locally. Aside from the aesthetic welcome of an open pit mine, the traffic concern has not been addressed. Spencer Wells Road is the only paved access road to Deschutes National Forest. The next paved road, Fredrick's Butte is 20 miles east. Truck traffic entering Hwy 20 is a concern. Westbound heavy truck traffic can approach speeds up to 70mph. Highway shoulders are not traffic lanes, and are not designed for heavy truck traffic. Water issues have also not been adequately addressed. Due to the unique geologic character of the valley, there is no guarantee any blasting will not harm adjacent wells. The four wells immediately east of the site are located in caverns. Will 4R • guarantee the continued health of these wells? Dry River Canyon is a flood zone. Anecdotal stories are available of canoeing the canyon in the 1970's (Ed Park, former resident). In periods of deep snow and rapid melting, I have seen the 20 foot pit behind our home fill with water. If diesel, oil and other hazardous material are at the site, what protection are we guaranteed against ground water contamination? The incomplete nature of both the application and the staff report, together with the cultural issues raised at the last hearing makes it very clear that both Deschutes County goals and Statewide Goal 5 are NOT met: "To protect natural resources and conserve scenic and historic areas and open spaces." Thank You, Keith and Janet Nash Evans Well Ranch 25700 Spencer Wells Rd Bend, OR 97 701 • My name is Janet Nash. My husband Keith and I operate Evans Well Ranch in the Millican Valley. It took us 18 months to negotiate the planning process in Deschutes Co. when we built our house to replace one that burned. In addition to the zoning. overlays this application has, we also had SBM. I mention this fact to illustrate the protection an EFU zoning imparts not only to the land in question, but also to the land around it. When Deschutes Co established the Horse Ridge East sub zone; it was to protect the character of eastern Deschutes Co., which is mainly composed of large tracts of arid land suitable for grazing. The 320-acre requirement, the largest in the county, is designed to protect the ranches from development pressure. The staff report mentions the land is not suitable for farming, and thus not worthy of EFU protection. (Staff report p.22) The term farming in the county code also refers to ranching. This land has been grazed in the last two years, on a rest/rotation system-grazed infrequently to allow recovery time. Staff report also states no housing opportunities would be lost (p.23), when in fact one potential building site would be lost. • The subject property is also located within the WA and LM zones. The report only addresses antelope as effected. Dry Canyon is within the 1/2 mile impact zone and is currently under a seasonal closure for a sensitive species, prairie falcon. The largest identified sage grouse lek in Deschutes Co (BLM Report. Sage Grouse in the High Desert of Central Oregon, 1994) is 1.25 miles away. This same report identifies a sage grouse nesting site directly across the highway from the mine site, well within the impact area. The BLM's Upper Deschutes Resource Management Plan identifies the Millican Valley to be managed "primary wildlife"-the highest management category. The recent decision by US fish and Wildlife Service NOT to list the Sage Grouse as endangered was made in part because of proactive work by State Agencies and private landowners to enact their own conservation plans. Oregon Dept of Fish and Wildlife's Draft Sage-Grouse Conservation Plan identifies habitat fragmentation as a leading cause of the birds decline. The mine would contribute to a loss of habitat. Thousands of citizens, many from out of the area, recreate in the Millican Valley. They contribute millions of dollars to the local economy. Mountain bikers, equestrians, bird watchers, Para gliders, stargazers and all of the OHV trail users will be impacted by the mine. They will either drive directly • by it, or look down into it. The Millican Valley is an ancient lakebed, a giant bowl drained by the Dry River Canyon. Noise and dust are trapped in the bowl. Both Deschutes County and BLM have a landscape management zone overlay. Due to the nature of the valley, the buffers do nothing to mitigate the line of sight. You can see down into the site from anywhere in the valley. 4-R has submitted a travel report. It addresses existing traffic flow and conditions. It states the majority of the trips will be west to Bend. The only passing lane is the 1/4 mile stretch at the summit of Horse Ridge. The rolling nature of Hwy 20 lends itself to blind spots. A school bus makes two round trips daily. Recreational traffic can be heavy and hurried. The kiosk at the foot of Spencer Wells road could be a dangerous spot to have tourists stopping for maps then pulling out into the road. The noise trucks generate 1 climbing Horse Ridge can clearly be heard at my home. The Staff Report (p.19) addresses Statewide Goal 5. It proposes to use • mining site 498 as a basis for the ESEE report. Enough significant resources have been identified that the ESEE report needs to be specific to this site. Set backs are nearly irrelevant, noise, dust, blasting, rock crushing effects neighbors and wildlife. The stated purpose of Goal 5 is not met: To protect natural resources and conserve scenic and historic areas and open spaces. Thank You, Janet Nash 25700 Spencer Wells Rd Bend OR 97701 r2. } k R i Owl k,14" i 4f ' G~ r 11, em 0 Page 1 of 2 Tammie Walker • From: "Marshall Gannett" <mgannett@usgs.gov> To: <tammiew@mtaonline.net> Sent: Tuesday, August 02, 2005 1:10 PM Subject: Ground Water Dear Tammie, I looked at the well log data base and didn't find many water wells within a few miles of your place. The closest wells for which there is information are miles to the southeast near Millican, or to the northwest. Ground-water information is pretty sparse in your area. There are, however, a few things we do know. Between Millican and the lower end of Dry Canyon the regional water-table surface slopes steeply toward the northwest. The water table is 300 to 400 feet below ground level in the Millican Area and around 1000 feet below ground level below the canyon (for example at the Highway Maintenance Station). A tritium analysis done by the USGS in the 1990s shows that the water produced from your well was recharged prior to atmospheric nuclear bomb testing in the early 1950s, indicating it is deep regional ground water and relativaly old. Oxygen and hydrogen isotope data indicate that the water is recharged in the high desert to the east, suggesting it may be slow to recharge relative to the western parts of the basin that receive recharge from the Cascade Range. In between Millican and the lower end of Dry Canyon, there may be some small, perched aquifers, like that feeding the Coyote well below your house. Any perched zones are likely fed by local recharge and would not likely support any significant pumping. A quarry at the location you described would probably have to drill over 1000 feet to get water and would likely produce from the same depth as your house well. There is not enough information to predict whether or not such a use could affect your house well, or what affect (if any) it would have on the aquifer. If the quarry is developed, it would be prudent to monitor the aquifer. The results of our study in the. Deschutes Basin can be found on our web site: http_///or.water.usgs gov/proj/deschutesw/ The reports can be found under "publications" on the home page. The report that would likely be of most interest can be found at: http: //or. water.uss. gov/pubs_dir/WRIR00-4162/ I hope this information is useful. Don't hesitate to contact me if you have additional questions. Sincerely, 8/8/2005 Page 2 of 2 Marshall Gannett U.S. Geological Survey Oregon Water Science Center 10615 S.E. Cherry Blossom Drive Portland, Oregon 97216 Marshall Gannett tel: (503) 251-3233 fax: (503) 251-3470 email: mgannett@uns.go_v_ 8/8/2005 • United States Department of the Interior IN REPLY REFER T0: 1690.11 (OR056) Janet Nash 25700 Spencer Wells Road Bend, OR 97701 Dear Ms. Nash: ,r►' J TAKE PRIDE' INAMERICA APP 18 2005 You called recently and asked for a brief summary of Upper Deschutes Resource Management Plan direction for recreation, visuals and wildlife on public land surrounding T19S R15E Section 30. The RMP has not been finalized, but it is likely that the Record of Decision (expected late this summer) will go with Alternative 7. In Alternative 7: Motorized travel on the surrounding public land would be limited to roads and trails • seasonally (closed December 1 - July 31). The surrounding public land would be classified a Special Recreation Management Area (as would most of the public land in the planning area). The public land in the area would be classified "low visual sensitivity" and "low visual quality." - The area would be classified "Primary Wildlife Emphasis" (Wildlife habitat is a primary management consideration in these areas). More information on what these designations mean can be found in the RMP. Copies are available at our office, or the document can be viewed on our website at: http://www5.or.blm.,gov/Prineville/Deschutes RMP/Home.htm Sincerely, ~ 4cr5 + f obert B. Towne field Manager, Deschutes Resource Area BUREAU OF LAND MANAGEMENT Prineville District Office 3050 N.E. 3rd Street Prineville, Oregon 97754 • u ;z ctS 0 U J cn G LLi U- 02 +;SC;s 33g ~ = l 13) (C~. \ ~ ~ S' 1 rd?%~^ 1 ~ of 50 ~'t`~ ~ ` i rte- { f s y 2 ~~~•o.«",o U }}lam '~:;f=;, ~ all) Lij + co ; . 7 U i D „ ¢6o r.; F?g:. C LL. 1 :f f•t+.;; y` )iFf.~'b~~i{';: ~i 't F Oar %.<rJ~;l.f "•T ti Z m co C "o co Q) z; N Q~ i a) 65 z uj s Y J O a L y .g 0 rt 3 • p F April 3, 2003 'It?Mbowsk, Goveum Deschutes County. Community Development Department 117 NW Lafayette Avenue Bend, OR 97701 ATTN: Chris Schmoyer, Associate Planner RE: CU-03-19 and SP-03-14 Thank you for the opportunity to comment on these applications. Department of Fish and Wildlife High Desert Region 61374 Parrell Road Bend, OR 97702 (541) 388-6363 FAX (541) 388-6281 ,';•~x R E" APR 04 2003 DES{..; H _ 41 4 The ODFW has- some serious concerns about these applications. This property is, located within County recognized antelope range. Antelope are extremely sensitive to changes in development and human caused disturbances. The proposed development would be a'drastic change from the overall rural nature that exists today. Under County ordinance 18:128.015 the proposal must be suitable based on, in part, the natural and physical features of the site, including the natural resource values. This type of . development would be nothing but detrimental to the wildlife values of this property., We would recommend that these applications be denied. If we can be of any further assistance please feel free to contact me. Sincerely, Steven George Deschutes District Wildlife Biologist steven.w.george@state.or.us 40