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2010-72-Minutes for Meeting January 20,2010 Recorded 2/16/2010DESCHUTES COUNTY OFFICIAL RECORDS r} 20~0~~2 NANCY BLANKENSHIP, COUNTY CLERK ll~iJd COMMISSIONERS' JOURNAL 02/16/2010 11:43:17 AM 11111111111111111 Hill III Z 7 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 at the request of [give reason] previously recorded in Book _ or as Fee Number to correct and Page Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JANUARY 20, 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Laurie Craghead, County Counsel; Peter Gutowsky and Nick Lelack, Community Development; Sue Brewster and Rebecca Brown, Sheriff's Office; Debi Harr and Hillary Saraceno, Commission on Children & Families; and approximately thirty other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Signature of Documents No. 2010- 028 through 2010-037, Towing and Storage Service Contracts for Vehicles Impounded through the Sheriffs Office. Sue Brewster and Rebecca Brown gave an overview of the contracts. These differ from what is in place with Consolidated Towing, who handles evidence towing. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 1 of 14 Pages 3. Before the Board was Consideration of Chair Signature of Document No. 2010-005, the Oregon Commission on Children & Families' Partnership Agreement. Debi Harr and Hillary Saraceno indicated that there were changes, eliminating some previous language, clarifying other language and outlining the statutory requirements of the entities. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 4. Before the Board was Consideration of Chair Signature of Document No. 2010-038, an Agreement with Accountable Behavioral Health Alliance (Nunc Pro Tunc). Commissioner Baney said that she signed this previously due to time constraints. Nancy England explained the document's purpose. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 5. Before the Board was Consideration of Second Reading and Adoption of Ordinance No. 2010-004, Amending Deschutes County Code to Allow for Setting Fees Semi-Annually. BANEY: Move second reading, by title only. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Chair Luke conducted the second reading, by title only. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 2 of 14 Pages BANEY: Move adoption. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 6. Before the Board was Consideration of Authorizing County Administrator's Signature of Document No. 2010-048, a Memorandum of Agreement with the Oregon Department of State Lands regarding Cooperative Planning for Development of the South Redmond Tract. This is a non-binding agreement between the Department of State Lands and the County regarding all of Central Oregon and not just Deschutes County regarding cooperative planning. The 945 acres owned by the Department of State Lands could be brought into Redmond Urban Growth Boundary as large lot industrial land, if supported and justified by demand and other factors. BANEY: Move approval. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 7. Before the Board was a Public Hearing, and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010- 002, regarding Destination Resort Map Amendment Procedures. Peter Gutowsky read the opening statement at this time Laurie Craghead said that there is a change in this statement; bias and prejudgment is not considered in legislative matters; conflicts of interest are. None of the Commissioners noted a conflict of interest. There have been a variety of work sessions and discussions on the record about this issue. No challenges were offered. Nick Lelack said that the Planning Commission has asked that this be remanded to the Planning Commission for further review and work. Commissioner Luke asked about notice going out in the November tax statement. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 3 of 14 Pages Commissioner Baney stated that she welcomes having the Planning Commission participate further and provide more input on this issue. Commissioner Unger agreed, but would like to see it back before the Board in a timely manner. Ms. Craghead asked if the Board wants to take testimony and continue the process for a period of time, or remand now and not be involved in a further process at this time. Chair Luke said they could continue the hearing for a while, let the Planning Commission take time to review it. Commissioner Baney stated that the Planning Commission did not have a full board when they reviewed it previously and would like to be able to review it again. Commissioner Unger agreed. Mr. Gutowsky recognized written testimony received since December 2. At this time, he gave a PowerPoint presentation on the issue. (See attached.) Commissioner Luke asked about page 7 of 9 of the staff report, procedures, table 3. He wondered why this wording is required; he asked why the County would want to look at redoing the map after this process, unless there is an application submitted. The law says they "may" do this every thirty months, not that they have to. Mr. Gutowsky stated that there could be a notice sent out to remind those who want to be notified of deadline dates so they can apply. A thirty-day notice may not be useful, as anyone who is pursuing a destination resort application will be involved long before thirty days before any deadline. Commissioner Unger stated that there is no criteria on small destination resorts, only large ones. He asked how the small destination resorts would be handled. Mr. Gutowsky said that the County only has large destination resorts. This issue might be revisited, but not many properties would fit. Nick Lelack said he is part of a work group reviewing destination resort law and how this fits with potential small destination resorts. An agenda will be established for meetings to discuss this further. Chair Luke opened the hearing to public testimony at this time. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 4 of 14 Pages Doug Parker, the Department of State Lands, testified, and noted that the State Land Board oversees common school fund trust lands. (He read a statement at this time) They have some areas of critical concern in mind, but are understand that they are not currently available. Commissioner Unger said that the mapping process shows which lands might be appropriate, and thirty months have to pass before more can be added. Mr. Parker stated they would hold the land and work as a partner with the owner. No other county has asked about excluding lands, and this is the first time they have felt compelled to have to come forward in this issue. Tom Davis, an engineer and a volunteer for the Native Fish Society, mad a statement on behalf of the Society. (He provided written information at this time) He wanted to talk about the economic engines and supply demands, reasons for saying "no more", a LUBA decision on Thornburgh Resort, and issues that relate to fish health. He feels that the destination resorts do not improve the area but instead compromise them seriously. There does not seem to be a shortage of tourist rooms. There are a lot of amenities that are natural in the area, however. The Northwest Environmental Defense Center prepared a brief relating to the concern about the "takings" issue. Pollution and water flow are all factors. The LUBA decision adds to this, as it talks about flow depletion and the warming of stream temperatures. Fish habitat is critical; whatever is happening, good or bad, in the water is an indicator of problems. The regulatory programs in Oregon are not adequate. An article in the Oregonian made this clear as well. He feels that natural amenities can drive the economy, and there is no need for further destination resorts. Chair Luke said the idea is to make the map more realistic. He feels the best time to do this is when there are no applications. The map got started by Eagle Crest because there was no map at the time. This process is not to add destination resorts; instead, it would set the criteria if there is another application. It needs to be predictable and clear. Good land use planning requires standards to be in place. Mr. Davis stated that the process is complex, but he feels the bottom line is protecting one of the biggest assets in the area. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 5 of 14 Pages Charlie Miller, a Miller Tree Farm property representative, said that this property has been included in the map for decades. Although they have no plans to develop a destination resort, they want to retain that designation. Derek Staab of Trout Unlimited stated that there work is oriented to help restore watershed. There are impacts to fish and wildlife. Expenditures for fishing and hunting are almost $70 million annually in Central Oregon. He is concerned that by allowing ineligible properties to be on the map, it will sacrifice some of the amenities that people visit the area to enjoy. There is degradation due to rising stream temperatures and other problems. He feels that three things need to happen. First, remove all lands that do not conform to local and state statutes at this time. In particular, wildlife corridors and winter ranges are a concern, as are endangered species. He is also worried about impacts to the flood plains. He encouraged the exclusion of anything in the Whychus Creek watershed. He suggested the creation of a committee to examine the impacts on wildlife. He appreciates that this is an amazing place, and more work is needed to protect the migration corridors and other areas critical to wildlife and fish. Chair Luke said that areas of critical concern are Whychus Creek and the Metolius Sub-basin. Mr. Gutowsky clarified that this is primarily the Metolius area. The State requires big game habitat be excluded, and also high deer migration areas. This will not change, and is consistent with the State and County rules. Mr. Gutowsky stated that the County was awarded grants to take a wetland inventory, and is in the process of beginning this process. Mr. Staab said that he commends the work of staff in this regard, and that they are going in the right direction. Jeff Wieland lives in the watershed area in South County. He testified that he appreciates the open process being followed by the County and Planning Commission. The beauty of this area is its biggest resource. He is opposed to grandfathering of ineligible properties and exceptions, which have lead to legal issues in other areas. The combining of properties to meet the 160-acre requirement is an invitation to ask for approval, and he opposes this provision. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 6 of 14 Pages There is enough housing for tourists. This activity supports the area but they have reached the point where traffic, water quality and other issues are a problem. He agreed that a map is needed, but wondered how the County will say "no" if a property is on the map. Chair Luke stated that it is best to do the update when there are no active applications to create confusion. Not having a map does not mean there won't be applications. There is a lot of property mapped as eligible at this time which is not really eligible. Commissioner Unger said that the Board represents all citizens and they don't always have the same viewpoint. The process has to be followed. Certain criteria has to be met to move forward in the process, and that is when the impacts are examined. Commissioner Baney agreed, and said that the map is not a rubber stamp. The map may show that a property meets the basic criteria but there is a lot more criteria that has to be addressed. Mr. Staab expressed concern about infrastructure impacts and the cost of roads, law enforcement and other issue. Commissioner Unger stated that the old destination resort language needs to be clarified to address everyone's concerns. William Kuhn, who lives within the Tumalo winter deer range, said that he respects the process and procedures. He has attended several hearings already. He does believe in property rights, and wanted the Board to be aware that he should be able to buy property that has restrictions on it, and that the restrictions are guaranteed to remain. He suggested that a new County ordinance should obligate property owners to complete requirements prior to new permits being issued. He asked about the new Deschutes (Skyline) Forest having nothing on the map for destination resorts currently, and how this process could affect that. Chair Luke stated that a destination resort cannot be placed on F-1 land, but F-2 is possible. Mr. Kuhn noted that if someone went after a zone change, they could try to change the zoning. Chair Luke said the legislature approved Skyline Forest, but the County cannot do the same thing under State law or County code. The County can review this activity, but cannot say "no". The County does not want destination resorts on prime forest land. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 7 of 14 Pages Mr. Kuhn asked if a developer might be able to go through a land use process to eventually put in a destination resort in Skyline Forest. Mr. Gutowsky said that it is approved for a rural development, not a destination resort. The State mapped the land as big game habitat, so it is prohibited from being a destination resort. F-1 land is a County criterion; the State does not allow development on productive forest land; however, this area is not considered to have productive forest land. The County can be more restrictive than the State, but not less restrictive. Robert Corrigan said that he is not an expert in land use law or finance, but hopes the Board will exercise sound judgment in this case. (He provided a written document.) He had a general question as to why there are destination resorts; they are an exception to land use laws in the area. No one was born with a right to build a destination resort. Suburban subdivisions should not be destination resorts, nor should existing golf course areas. He feels that the purpose is to promote new tourism and funds. This area is over-served with destination resorts. Any further resorts are a matter of diminishing returns, with too much competition for them all to succeed. A developer can make a statement otherwise, but he would like to see a complete and full economic assessment be part of the application process. He added that the map should add clarity. Everyone looks for clarity, which should be done with common sense. Properties that might be eligible if combined should be shown, and those that just don't fit should not be on it. There should not be a right to keep property on it if it does not fit. The County makes money form destination resorts. Government is unique in this regard. The government has a monopoly in selling off rights in this manner. The people have to depend on the Board to protect the rights of the many from the demands of the few. He asked that clean water, wildlife, scenic views and other amenities be considered as community rights. Richard Klyce said that he is not interested in supporting this amendment at this time. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 8 of 14 Pages Pam Mitchell said that thirty years ago the area depended on a timber industry and agriculture. The groups that supported the decline of the timber industry are now not interested in supporting other ways to help the economy. Deschutes County was able to develop a different economy: tourism and construction. They should embrace what they have instead of closing the door. Currently there is a prohibition on irrigated EFU of 40 acres or more. This potentially can damage agriculture. A water right does not mean it is a viable water right. The mitigation of 8:1 ratio requires that the land has to be bought up to obtain the water right, taking away the revenue from the district and drying up the irrigated land. Brasada Ranch became a paying, viable customer that benefits the district because it puts the water rights into good use. This prohibition is damaging to agriculture. A lot of the property with the resort overlay could be developed as subdivisions and not resorts. Tourist-based property has additional benefits and does not burden schools and other infrastructure. She asked what is wrong with taking an existing subdivision from a non-public subdivision and adding amenities to benefit the economy. The fish and wildlife study includes total dollars spent; many are ancillary or secondary reasons. The numbers are not necessarily accurate. A lot of the people who oppose the resorts live in the properties they are now opposing. Jim Guild stated that this is his fifth year of opposing destination resorts. He disagrees with the comment that the remapping process is doing anything but rubber stamping resorts. He does not feel the Board represents all citizens. He said that there are a lot of foreclosures right now. The Commissioners are supposed to protect the health, safety and welfare of constituents, not the welfare of developers. He does not know who in the area supports destination resorts; maybe a public vote would be good. He is a serious property taxpayer. Builders support local businesses and land-owning clients. He did not expect land use requirements and restrictions to change. He knows what his risks are and does not expect the rules to change so he can make money. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 9 of 14 Pages There is no demand for destination resorts. The formula of home costs to lot costs used to be 4 or 5 to 1. Today, destination resort lots are too expensive. There is no market for them. He feels that people don't attend hearings because their comments go on deaf ears. McCall, Idaho, is failing because of a class action lawsuit regarding destination resorts. If there is going to be a destination resort, it should be within the UGB, not in outlying areas. People who are committed citizens don't see any good coming from these rural subdivisions. It is not healthy for the community. Tourism comes and goes and is based on people doing well in other parts of their life. Construction should be based on real development. Nancy Lowas said she submitted written testimony. Two people who submitted sign-in cards (Sandy Lonsdale and Andy High) did not testify at this time. The meeting was recessed until 6: 00 p.m. today; the minutes of the continued hearing will be separate from the business meeting minutes herein. BANEY: Move approval of the Consent Agenda. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. CONSENT AGENDA 8. Signature of Document No. 2010-004, a Service Agreement between the Sheriff's Office and Motorola regarding Maintenance of Radio Equipment 9. Signature of Order No. 2010-012, Declaring Certain County Personal Property Surplus, and Authorizing Sale 10. Signature of Document No. 2010-024, a Trustee's Deed regarding a Default Property 11. Chair Signature of Document No. 2010-006, an Amendment to an Intergovernmental Agreement with the State of Oregon regarding the Healthy Start Program Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 10 of 14 Pages 12. Signature of Resolution No. 2010-002, Appropriating a New Grant for Adult Parole & Probation 13. Signature of Resolution No. 2010-003, Transferring Appropriations in the District Attorney's Office Fund 14. Signature of Resolution No. 2010-004, Transferring Appropriations in the Health Fund 15. Signature of Resolution No. 2010-005, Appropriating a New Grant in the Commission on Children & Families' Fund 16. Signature of Resolution No. 2010-001, Initiating the Vacation of a Portion of Rock Springs Road 17. Signature of Order No. 2010-002, Vacating a Portion of Rock Springs Road 18. Signature of Letters: Appointing Brenda Pace to the Weed Board through December 31, 2012; and Reappointing Jason Deney, Larry Pecenka and John Stephenson through December 31, 2012 19. Signature of Letters Reappointing Chris Bellusci and John McLeod to the Central Oregon Intergovernmental Council Board, through December 31, 2011 20. Signature of Letters Appointing Mary Fuller, Martha Miller, Roger Olson and Lindsay Stevens to the Deschutes County Addictions & Mental Health Advisory Board, through December 31, 2011 21. Signature of a Letter Accepting the Resignation of Brent Johnson from the Board of Deschutes River Recreation Homesites Special Road District #6, and Thanking Him for His Service 22. Signature of Letters Appointing Neal Henderson (through December 31, 2011) and Adena Glassow (through December 31, 2012) to the Board of Deschutes River Recreation Homesites Special Road District #6 23. Signature of a Letter Accepting the Resignation of Bob Beal from the Deschutes River Mitigation and Enhancement Committee, and Thanking Him for His Service 24. Approval of Minutes: • Business Meeting: January 6 • Work Sessions: March 30, 2009; April 20, 2009; January 6 Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 11 of 14 Pages CONVENED AS OF GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 25. Before the Board was Consideration of Signature of a Letter Appointing Doris Brannan to the Sunriver Service District Budget Committee, through June 30, 2012. BANEY: Move signature. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 26. Before the Board was Consideration of Chair Signature of a Notice of Intent to Award Letter for the Replacement of Dispatch Radio System Equipment. Andy Jordan and Rick Silbaugh explained the item. This equipment is used by four agencies, and will be used in the new OSP/911 building when it is completed. This covers the software purchase; there will be an additional request for hardware later. UNGER: Move approval. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 27. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District (two weeks) in the Amount of $51,603.59 BANEY: Move approval, subject to review. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 12 of 14 Pages CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 28. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District (two weeks) in the Amount of $5,096.70. BANEY: Move approval, subject to review. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 29. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County (two weeks) Dave Kanner said that this figure includes mid-year grant disbursements and about one-third of the OSP/911 building, for about half of the vouchers. BANEY: Move approval, subject to review. UNGER: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 30. Before the Board were Additions to the Agenda. None were offered. Being no further items addressed, the meeting adjourned at 11:50 a.m. Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 13 of 14 Pages DATED this 20th Day of January 2010 for the Deschutes County Board of Commissioners. ATTEST: 17 e , Dennis R. Luke, Chair Alan Unger, Vice Chair Tammy Baney, Co issioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Wednesday, January 20, 2010 Page 14 of 14 Pages BOARD OF COMMISSIONERS' MEETING do REQUEST TO SPEAK Agenda Item of Interest: &J-j-4 n A'nc~-5 Date: '-~u i 0 Name C h C, Address 110 L G1 (L mot., We-i aJ T? o ✓G`h U e. W Phone #s S~ilr a a- S E-mail address GGi ~v---' • In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? Yes ~No If so, please give a copy to the Recording Secretary for the record. o 4'~ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: s d Q ,NI Name Date: LT w . 2-0, 2G i v 4 Address /-J w T),j „job Ay,,?- J , op- a) 4'~-V 1 Phone #s yd - & f ~ (o E-mail address ✓ In Favor ❑ Neutral/Undecided 1-1 Opposed Submitting written documents as part of testimony? Yes F-] No or the record. If so, please give a copy to the Recording Secretary BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: ~a Date: f " Name Address Phone #s E-mail address ew if In Favor F] Neutral/Undecided Opposed Submitting written documents as part of testimony? F]Yes No If so, please give a copy to the Recording Secretary for the record. TES BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Name W : LLAil-q aJ" Date: 246 J m- r Address Phone #s 7 w` E-mail address In Favor F-] Neutral/Undecided 1:1 Opposed Submitting written documents as part of testimony? F]Yes 1-1 No If so, please give a copy to the Recording Secretary for the record. JT~S O c ~ Agenda Item Name Address BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Interest: ~JT'`~~ G Date: Phone #s 7 ~l E-mail address 47 C C F] In Favor F1 Neutral/Undecided 19 Opposed Submitting written documents as part of testimony? Yes F-] No If so, please give a copy to the Recording Secretary for the record. Wv~v o BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: Date: _ Name l/ L c Address G Phone #s E-mail address ❑ In Favor F-] Neutral/Undecided 1-1 Opposed Submitting written documents as part of testimony? Yes ❑ No If so, please give a copy to the Recording Secretary for the record. ~vsES c0 L lu a BOARD OF COMMISSIONERS' MEETING n ~ REOUEST TO SPEAK Agenda Item of Interest: S I ~lUf~`II o,~ &504`7_6 Date: Name 1120110 Address 0 ©IJ Pe-Pr- OF -;M7E tAUo S CP SL Phone#s 50 3. q g6 ' S 242 E-mail address 6_0 StATz In Favor ❑ Neutral/Undecided ❑ Opposed Submitting written documents as part of testimony? Yes ❑ No If so, please give a copy to the Recording Secretary o e record. LU \ 2~ BOARD OF COMMISSIONERS' MEETING n { REQUEST TO SPEAK Agenda Item of Interest: Date: 2D Name ! c~ W\ ` t 1 C Address Phone #s^4' E-mail addresses (M t (s~2C~C'Ct~d = Cfl In Favor Neutral/Undecided 6~~O/Pposed +e.S j, P,, Submitting written documents as part of testimony? es ❑ No ~ S If so, please give a copy to the Recording Secretary for the record. 'Vvr,oyy~~ o { BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest: C ~df Date: ` Z o Name Address ` Phone #s E-mail address ❑ In Favor ~ Neutral/Undecided F-] Opposed Submitting written documents as part of testimony? ❑ Yes o ~4N If so, please give a copy to the Recording Secretary for the record. o { BOARD OF COMMISSIONERS' MEETING m REQUEST TO SPEAK Agenda Item of Interest: eiv-u Date: 112,0 //0 Name 1 ~ 1-v?r t (7,S, U C-n il) Address (D LN 7i, Phone #s "q Zc)✓ 52~_S 4 E-mail address 5 lo h sd a L @ CO P?el(- . no ❑ In Favor ❑ Neutral/Undecided 9 Opposed 40 1nOC ' (JA'" 'b re soN+s Submitting written documents as part of testimony? 0 Yes ❑ No If so, please give a copy to the Recording Secretary for the record. ti{ BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Agenda Item of Interest: c:&56 C&\ LP Date: n Name 1 6u t i-0 Address l ~ c)V! a! P ~D Phone #s 4 t - 3 g 'g 3S 0 E-mail address 1-1 In Favor Neutral/Undecided Opposed Submitting written documents as part of testimony? F]Yes E No If so, please give a copy to the Recording Secretary for the record. EVES n ~n~Z 01 < BOARD OF COMMISSIONERS' MEETING REOUEST TO SPEAK Agenda Item of Interest: _1?e__10 4 O&V-rN Date: J-20 ~o Name Address _&9.z.5 Z,:,-> 1-_) r~t )cc C _ 1,499 q 7-7s 9 Phone #s 41 / - ~5Y S - q & 3 E-mail address yvlQ-V<~ g i 1 a s_ m F In Favor F~ Neutral/Undecided © Opposed Submitting written documents as part of testimony? F~ Yes ® No If so, please give a copy to the Recording Secretary for the record. • PRELIMINARY STATEMENT FOR A LEGISLATIVE PUBLIC HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS Destination Resort Map Amendment Public Hearing January 20, 2010 This is a public hearing on Ordinances 2010-001 and 2010-002, File Numbers PA-09-3 and TA-09-6. Initiated by staff and modified by the Deschutes County Planning Commission, the proposal amends the Destination Resort Chapter of the Deschutes County Comprehensive Plan as well as Deschutes County Development Procedures by: • Listing clear and objective mapping criteria for areas that are ineligible for siting destination resorts; • Listing clear and objective mapping criteria for areas that are eligible for siting destination resorts; and, • Describing the process for amending Deschutes County's Destination Resort Map The Board of County Commissioners will hear oral testimony, receive written testimony, and consider the testimony submitted at this hearing. The hearing is also being taped. The Board may make a decision on this matter today, continue the public hearing to a date certain, or leave the written record open for a specified period of time. The hearing will be conducted in the following order. The staff will give a report on this issue. We will then open the hearing to all present and ask people to present testimony at one of the tables or at the podium. You can also provide the Board with a copy of written testimony. Questions to and from the chair may be entertained at any time at the chair's discretion. Cross-examination of people testifying will not be allowed. However, if any person wishes ask a question of another person during that person's testimony, please direct your question to the chair after being recognized. The Chair is free to decide whether or not to ask such questions of the person testifying. Prior to the commencement of the hearing any party may challenge the qualifications of any Commissioner for bias, prejudgment or personal interest. This challenge must be documented with specific reasons supported by facts. Should any Commissioner be challenged, the member may disqualify himself or herself, withdraw from the hearing or make a statement on the record of their capacity to hear and decide this issue. I will accept any challenges from the public now. (Hearing none, I will open the public hearing). STAFF REPORT i --r- r= 4=> Community Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or.us/cdd/ MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, Principal Planner DATE: January 8, 2010 HEARING: January 20, 2010 SUBJECT: Destination Resort Remapping / Summarizing Planning Commission Testimony The Deschutes County Board of Commissioners asked staff, at their January 6 work session, to summarize destination resort remapping testimony submitted into the record during the Planning Commission's November 19 and December 2 public hearings. The purpose of the summary is to prepare them for their hearing on January 20. Summary of Destination Resort Remapping Testimony Prohibit destination resorts within 5 air miles of Bend's UGB. The following issues warrant attention: • Costs of destination resorts • Percentage of economic activity at resorts that are a diversion from other existing visitor-serving amenities • Value of wildlife • Costs of public services • Are taxes levied on resorts collected in full • True costs and benefits of destination resorts • Penalties preventing construction of less than' the required amount, of overnight units before permanent lots are sold November 19 . Stronger enforcement Public Hearing . Mitigation fund which could be forfeited to the County if not used • High wildfire risk should be exempt from eligibility Questions the haste of the current destination resort remapping process. Safety of the natural environment is an important criteria for siting a resort. Develop a full soils map and overlay it on the existing resort map, showing that it complies with high value soils (Soil 65A) Safety concerns in Tumalo resulting from resort development that have not been addressed; transportation an ongoing issue. Encourage smaller resorts which would have a minimal impact on services. Postpone final mapping process until the Comprehensive Plan policies-have been finalized regarding resort size, and location. Quality Services Performed with Pride Requests properties of less than 160 acres be included so that parcels can be combined. Clarify "lots," "parcels," "sites," etc., in the generic sense versus legal terminology. Allow at least 90 days for people to file applications after the Board's decision. Developers of large-scale destination resorts have to spend a lot of money to build. Tourists visit cities, contributing to the local economy. Oppose a five-mile resort prohibition from Bend's UGB. F-1 land should be eligible for resorts. Areas within the Deschutes Basin may not be acceptable for resorts (ex. aquifer under Thornburgh site). Require a map amendment applicant to pay for transportation, water, safety, height, environmental, and wildlife studies. Develop a list of independent firms to perform the studies before remapping amendments are adopted. Preserve open space and consider the lifestyle and great places to live in Deschutes County before considering remapping areas for new resorts. Pronghorn is nothing but a subdivision. The remapping amendments should be continued beyond February 2010. November 19 Public Hearing Remove all the eligible land from the destination resort map. Consider a moratorium on new resorts. Destination resorts are an attack on state land use laws and have nothing to do with providing a service. Mapping depends in large part on whether the resorts cater to rural subdivisions or whether they cater to tourism and include overnight housing. Identify the amount of room and property taxes collected from each resort. No more destination resorts. Protect public resources like water, fish and wildlife. Exclude resorts within 10 miles of a UGB or 10 miles from an existing destination resort. Require economic assessment which affirmatively demonstrates clear and positive economic development for the region before approving new resorts. Repeal existing destination resort map. Need a scientific water survey. A new map must take into consideration threatened or endangered species as well as analyses where development would diminish wildlife or their habitat. Strengthen siting requirements for resorts No further destination resorts in the south county groundwater study area. Allow small destination resorts Current siting criteria too restrictive. Rely solely on state statute. Allow contiguous properties less than 160 acres to be eligible. Opposed to any effort aimed at facilitating additional resort development in the county that does not first take serious steps to address the numerous issues pertaining to traffic, affordable housing, wildlife, groundwater, and impacts to neighbors and neighboring communities. Opposed to development models so heavily focused on the sale of real estate for residential purposes as opposed to the generation of true tourism. Troubled by the fact that Deschutes County continues to invest substantial time and effort into remapping at a time when the issue remains so clearly in play at the state level. Put this portion of the comprehensive plan update on the back burner until there is clarity at the state level. Destination resort development leads to loss of critical deer and elk habitat. Developed areas become at risk for wildfire Limit destination resorts to those areas that relate to and showcase rural November 19 agricultural and natural resources, leaving more urban recreation activities to Public Hearing urban areas. Encourage a variety of resort sizes that focus on the diversity of natural resources. Development regulations must apply equally to both large and small resorts. Restrict residences and non-natural resource related recreational uses so more property owners, investors, and developers might be attracted to the resort field. Oppose destination resorts because it allows suburbia to interfere with the rural lifestyle. Resorts and tourism provide few high paying jobs once the initial construction is completed. Revenue from a potential increase in taxes should be weighed against loses in quality of life (open space, natural habitat, farm, and forest). Don't need more traffic Rural areas should be protected from resort development Clarify acknowledged Goal 5 planning program Destination resorts provide an important tax based to local fire districts. Destination resorts do not reduce but actually add to the safety of areas by installing fire hydrants and implementing defensible space Destination resorts are good for the economy. There is more wildlife in developed areas. December 2 Golf courses use less water per acre than agricultural crops. Public Hearing Destination resorts are sited on land that is beautiful and generally less productive for farming. It would lessen the impact on irrigated agriculture if resorts were encouraged to be sited on irrigated land. Resorts use far less public services than they provide. Simplify the destination resort rema in process. Fish and wildlife are important for the livability of Deschutes County. No resorts in the Count have met state criteria. Collect more data from independent studies before embarking on a remapping program. Evaluate the Central Oregon Land Watch report, documenting the socio- economic impacts of destination resorts. Deschutes County needs updated wildlife inventories because it is important to protect recreational resources. Standards set forth in the amendments should be upheld and strengthened where resorts have failed to provide the economic development as promised. A moratorium on new resort applications should be put in place until existing resorts are fully built out and we know they are economically viable land use decisions and not new county liabilities. Special consideration should be given to: wildland urban interface, groundwater flows, especially to Whychus Creek, open space and non- motorized recreation, and rural livability. December 2 Protect wildlife connectivity. Public Hearing Prevent land use decisions from creating ecological islands Allow adjacent properties to combine with each other, but only if at least one of the properties is already greater than 160 acres. Current siting language is too restrictive and does not meet intent of Goal 8. Destination resort language should be streamlined to be more in line with state statute. Oppose 5-mile prohibition of destination resorts from Bend's UGB. Allow contiguous property owners, less than 160 acres, to qualify for eligibility. Permit properties smaller than 160 acres to be combined with contiguous properties to satisfy the 160-acre requirement for resort eligibility. Develop a vision. Acknowledge public regulations and lands that restrict resort development. Identify appropriate County locational criteria. oF 8 5 e Theodore R. Kulongoski, Governor January 20, 2010 Ike?artmemit of, State Lams 775 Summer Street NE, Suite 100 Salem, OR 97301-1279 (503) 986-5200 FAX (503) 378-4844 www.oregonstatelands.us. State Land Board Deschutes County Board Of Commissioners Theodore R. Kulongoski Governor Kate Brown RE: Proposed Amendments to Deschutes County Code Chapter 23.84, Secretary of State Clarification of Common School Fund Trust Lands Ben Westlund Presented by Douglas Parker, Asset Planner State Treasurer Commissioners, Staff and public school advocates: In the most basic of terms, the intent of this testimony is to make sure that the Board is aware of the significant difference between Common School Fund (CSF) Trust Lands and "state lands" as the term is used in the proposed ordinance. The purpose of Common School Fund Trust Lands is to generate revenue to support K-12 public education statewide through real estate-oriented activities including ground leases and land sales, most often to the private sector. CSF Trust Lands are not "public lands" or "state lands" in the conventional usage of these terms. CSF Trust Lands are managed according to the Admission Act, the Oregon Constitution, state law and various legal directives including an Attorney General Opinion (Crookham Opinion, July 24, 1992, No. 8223) [attached] that requires the State Land Board ...to use lands dedicated to the Common School fund in such a way as to derive the greatest net profit for the people of this state." In order to codify the distinction between CSF Trust Lands and state lands, the Board is requested to adopt a minor modification to proposed Deschutes County Code (DCC) Chapter 23.84. This modification will help avoid future constraints to the constitutional and judicial mandates regarding the highest priority use and management of the real estate assets of the Common School Fund. A clear legal distinction between "state lands" and "Common School Fund Trust Lands" is the goal. This requested clarification has direct bearing on 400 acres of CSF Trust Lands currently leased to the proposed Destination Resort on Cline Buttes. This lease represents significant income to the Common School Fund while a possible future lease to develop this site has the potential to produce even greater revenue for the CSF. Deschutes County Ordinance 2010-001, as currently proposed in DCC Chapter 23.84.030 (3)(d)(6), allows Federal, State, or City land not otherwise excluded that becomes privately owned through land exchanges or other disposition can be considered for destination resort siting consistent with these policies and mapped as available for destination resort development. Given the above-cited Cline Buttes example where CSF Trust Lands are leased rather than sold or exchanged, it is essential that the adopted implementing Ordinance and resulting Code language distinguish between state lands and CSF Trust Lands so as not to inhibit or impede CSF Trust Lands highest priority use and management goals. To avoid this possible future development conflict, it is requested that the following be added to proposed DCC Ordinance 2010-001, Chapter 23.84 as part of this Plan and Text Amendment procedure: DCC 23.84.030 (3) (f). For the purposes of this Ordinance, State land does not include Indemnity lands or School lands, as defined in ORS 273.251 (3) and (4), respectively or any other Common School Fund Trust Lands managed by the Oregon Department of State Lands. 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Oregon 97310 Telephone: (503) 378-4400 July 24, 1992 No. 8223 JACK L. LANDAU DEPLTY ATTORNEY GENERAL This opinion responds to questions raised by the State Land Board (board), relating to certain lands granted by the United States to the state upon admission into the Union "for the use of schools" (hereinafter "Admission Act lands""). In general, these questions deal with the lawful uses of these lands and the effect of federal or state regulations on such uses.71 Below, we state the questions and our brief answers, then discuss the reasons for those answers. FIRST QUESTION PRESENTED Does the Oregon Admission Act limit the board in applying the standard in Article VIII, section 5(2), of the Oregon Constitution, for management of Admission Act lands? ANSWER GIVEN The Oregon Admission Act does impose an obligation upon the board to manage Admission Act lands "for the use of schools." This objective is consistent with the duty imposed by Article VIII of the Oregon Constitution for management of those lands. The management standard in Article VIII, section S(2), to obtain the "greatest benefit" for the people, presumes an objective that is found elsewhere in Article VIII. In that sense, therefore, the Admission Act does not limit the board in applying the management standard in Article VIII, section 5(2). SECOND QUESTION PRESENTED Does the Oregon Admission Act or the Oregon Constitution require the board to maximize revenue, consistent with the prudent investor rule," from management of Admission Act lands? ANSWER GIVEN Yes, to the extent the Admission Act lands are retained and not directly used for schools, e.g., for siting school facilities. However, the board is not required to maximize present income from the Admission Act lands without regard to other considerations. Rather, the board's duty is to manage the lands for the long-term benefit of the schools. Thus, the board may sacrifice present income to preserve the property, if iz determines this will enhance income for the future. Noneconomic factors may be considered only if they do not adversely affect the potential financial contribution to the Common School Fund over the long-term. THIRD QUESTION PRESENTED Does the Oregon Admission Act or the Oregon Constitution exempt the board from complying with the federal or state Endangered Species Acts (ESAs) on Admission Act lands? ANSWER GIVEN No. Neither the Oregon Admission Act nor the Oregon Constitution exempts the board from complying with the federal or state Endangered Species Acts. By virtue of the Supremacy Clause of the United States Constitution, the federal ESA lawfully may limit the state's use of the Admission Act lands, subject to the possibility of a compensable "taking." The state ESA may not unduly restrict the constitutional powers of the board. The Act does not, on its face, appear to do so. Thus, a conflict would arise only if the Act is applied in a manner which unduly restricts the board's constitutional powers. This would be a fact-specific determination. FOURTH QUESTION PRESENTED Is the Common School Fund entitled to compensation from the federal government for asset or revenue reductions caused by compliance with the federal ESA? ANSWER GIVEN Probably not. While it is conceivable that the fund might be entitled to compensation for an unconstitutional taking of property without compensation, evaluation of such 2 a claim is fact intensive and must be conducted on a case by case basis. Even assuming the benefit of an adequate factual record, in our opinion it is unlikely that a takings claim could succeed. Courts are disinclined to award compensation for regulatory takings unless the regulation deprives the property owner of all or virtually all use of the land. Moreover, recent court decisions indicate that damage to property as a result of endangered species regulation will not be considered a basis for compensation. FIFTH QUESTION PRESENTED Is the Common School Fund entitled to compensation from the state General Fund for asset or revenue reductions caused by compliance with the state ESA? ANSWER GIVEN No. As stated in our answer to your third question, the board is not required to comply with the state ESA if compliance would unduly burden or restrict the board's exercise of its constitutional powers to dispose of and manage Admission Act lands. Accordingly, there is no issue concerning taking of trust property without just compensation, since the state ESA could not lawfully prevent the board from maximizing revenue from Admission Act lands over the long term. DISCUSSION I. Use and Management of Admission Act Lands A. Oregon Admission Act To address whether the grant of Admission Act lands to Oregon imposes legal restrictions. on the use of those lands,. it is appropriate to consider the nature and history of this and similar grants.' The history of land grants to newly admitted states is nearly as old as that of the United States itself. The original thirteen states had sovereign authority over all of the lands within their borders. This land provided a tax base for the support of education and other governmental functions. See Andrus v. Utah, 446 US 500, 522, 100 S Ct 1803, 64 L Ed2d 458 (1980). In contrast, the federal government owned vast areas of 3 t the territories that later became states. This land was immune from taxation, and the federal government was disinclined to waive its immunity. As a result, states created from these public lands would not have been on an "equal footing" with those of the original thirteen. Congress, therefore, made land grants to the newly admitted states in order to equalize their tax base status with that of the original thirteen.51 See generally Utah v. Kleppe, 586 F2d 756, 758 (10th Cir 1978), rev'd, 446 US 500 (1980). To ensure that land would be available for the school land grants to the new states, Congress established a practice of reserving certain sections in every township within the territories for the support of the schools. Thus, the first enactment for the sale of the public lands in the "western territory," the Land Ordinance of 1785, provided for setting E apart section sixteen of every township for the maintenance of the public schools. 1 Laws of the United States 565 (1815). Andrus v. Utah, su ra, at 523 n 2. See generally United States v. Morrison, 240 US 192, 36'S Ct 326, 60 L Ed 599 (1916). And, when Ohio was admitted into the Union by the Act of April 30, 1802, it was granted section sixteen in every township "for the use of schools."6/ 2 Stat 175, ch 40, § 7 (1802). This was the basic pattern followed for subsequent states, although the specific terms of the school land reservations and grants have differed over time. In virtually every case, the school land grants are found in the states'-admission or enabling acts. The grants have varied in terms of the number of sections 4 1 t granted per township, in the wording of the purpose of the grant (e.Q., "for the use of schools," "for the support of common schools") and in the extent of explicit restrictions placed upon the state. See Papasan v Allain, 478 US 265, 270, 106 S Ct 2932, 92 L Ed2d 209 (1986); Andrus v. Utah, supra, 446 US at 506-07; United States v. Morrison, supra, 240 US at 198. In Oregon's case, Congress first passed the Act of August 14, 1848, 9 Stat 323, ch 177 (1848), reserving certain lands o the Oregon Territory for the schools. It provided: That when the lands in the said Territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said Territory shall be, and the same is hereby, reserved for the purpose of being applied to schools in said Territory, and in the States and Territories hereafter to be erected out of the same. Id. at § 20 (emphasis added). Five years later, Congress passed the Act of January 7, 1853, 10 Stat 150, ch 6, 1, 2 (1853), authorizing the territory to select "lieu" lands when the original granted secticns sixteen or thirty-six were "taken" or "occupied" before title could vest in the territory."' Section 2 of this Act provided: And be it further enacted, That when selections are made * * * said lands so selected, and their proceeds, shall be forever inviolably set apart for the benefit of common schools. Id. (emphasis added). Finally, in 1859, Congress passed the Admission Act, which proposed a grant of sections sixteen and thirty-six "for the use of schools." Section 4 of the Act, which includes the grant of land for the use of schools, is in the form of six propositions 5 0 offered to the people of Oregon for their acceptance or rejection. It provides in part: That the following propositions be, and the same are hereby, offered to the said people of Oregon for their free acceptance or rejection, which, if accepted, shall be obligatory on the United States and upon the said State of Oregon, to wit: First, That sections numbered sixteen and thirty-six in every township of public lands in said State, * * * shall be granted to said State for the use of schools. * * * Provided that the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said State shall never [inter alia, tax federal lands]. 11 Stat 383, § 4 (1859)(emphasis added). The Oregon legislature accepted the propositions offered by Congress by an Act dated June 3, 1859. 1 Oregon Code Annotated § 1, at 37 (1930). This acceptance sets out verbatim section 4 of the Admission Act, and then provides: Propositions of congress accepted. The six propositions offered to the people of Oregon in the above-recited portion of the act of congress aforesaid, be, and each and all of them are hereby, accepted; and for the purpose of complying with each and all of said propositions hereinbefore recited, the following ordinance is declared to be irrevocable without the consent of the United States, to wit: Be it ordained by the legislative assembly of the State of Oregon, That the said state shall never [do those things listed in the latter part of section 4 of the Admission Act] .g' Id. (emphasis added). Thus, the legislature accepted the grant of sections sixteen and thirty-six for the use of schools and bound the state to section 4 of the Admissions Act. This offer and acceptance was a "solemn agreement" or "compact," which may be analogized to a contract between private parties. See Andrus v. Utah, supra, 446 US at 507; United States 6 .I 1 v. Morrison, supra, 240 US at 201-02; Cooper v. Roberts, 59 US (18 How) 173, 177-79 (1856). The question is: Did this agreement impose any binding obligations on the state with regard to the lands that Congress granted "for the use of schools"? We conclude that Congress intended to impose restrictions on Oregon's use of its Admission Act lands. Oregon's acceptance of the proposition of its Admission Act, granting land to the state "for the use of schools," imposed a binding obligation on the state. Our conclusion is based on the history of Oregon's Admission Act land grant and the construction of similar land grants to other states. Concerning the history of Oregon's land grant, we find compelling the language of the Act of 1853, which provided that lands selected "in lieu" of already occupied grant lands "shall be forever inviolably set apart for the benefit of common schools." 10 Stat 150, ch 6, § 2 (1853). If Congress had intended that there be no restrictions on the use of these lands, we think it would not have used such language. Further, it seems probable that Congress, having so clearly expressed its intentions regarding the use of the lieu lands, also intended the same restrictions to apply to the original.granted lands. Similarly, it is likely that Congress, having imposed this "inviolabl[e]" restriction on the Oregon Territory in 1853, would have intended to continue the same restrictions upon Oregon's admission into statehood a few years later. We also find compelling the consistency with which Congress imposed this obligation on other public land states. While the 7 e language of admission acts and acts accepting admission varied somewhat from state to state, they consistently declared that the land grants be used for schools. Indeed, in the earliest grants, Congress explicitly referred to the creation of trust obligations: In amending the 1802 Act granting school lands to the state of Ohio, for example, Congress provided: That the following several tracts of land in the state of Ohio, be, and the same are hereby appropriated for the use of schools in that state, and shall, together with all the tracts of land heretofore appropriated for that purpose, be vested in the legislature of that state, in trust for the use aforesaid, and for no other use, intent or purpose * * 2 Stat 225, ch 21, § 1 (1802)(emphasis added). We think it unlikely that Congress would have imposed a trust in Ohio and other early public land states and then have imposed no binding obligations at all on other states. The precise nature of the obligations.imposed by Oregon's Admission Act compact is not entirely clear. The Supreme Court's characterization of the school land grants has not been consistent, as the court notes in Papasan v. Allain, supra, 478 US at 290 n 18. Yet, there is a substantial body of caselaw. concluding in fact, virtually taking for granted that the admission acts created trust obligations on the public land states. See, e.g., Department of State Lands v. Pettibone, 702 P2d 948 (1985); County of Skamania v. State, 685 P2d 576 (1984); Oklahoma Ed. Ass'n, Inc. v. Nigh, 642 P2d 230 (1982). There is also authority to the contrary. See, e.q., Madison County Bd. of Educ. v. Illinois Cent. R.R., 939 F2d 292 (5th Cir 1991); see also Bradley v. Case, 4 Ill 585 (1842). I 8 1 Oregon caselaw sheds little light on the matter. In Schneider v. Hutchinson, 35 Or 253, 258, 57 P 324 (1899), the Oregon Supreme Court spoke of the Admission Act grant as "an absolute grant, vesting title in the state for a special purpose." The court gave no clues as to the meaning of "absolute grant * * * for a special purpose." That language, however, is not entirely consistent with the notion that the Admission Act created a trust. 91 But then in Grand Prize Hydraulic Mines v Boswell, 83 Or 1, 6, 162 P 1063 (1917), the court stated that "the school lands granted to the State of Oregon are a-trust for the benefit for public education.11101 In our view, it is unnecessary at this juncture to characterize the Admission Act obligations in terms of a trust, a public dedication or some other theory. The important point is that the obligations are binding. They cannot be disregarded. Oregon must use the Admission Act lands for schools and not for any purpose that is inconsistent with such use. Having concluded that the Admission Act imposes binding obligations upon the state, we next consider how these obligations compare to the board's management responsibilities under Article VIII of the Oregon Constitution. If Article VIII imposes obligations that are at least as restrictive as those imposed by the Admission Act, the Admission Act would have no independent effect on the board's management authority. We turn next to that question. 9 I B. Article VIII of the Oregon Constitution We begin with the history of Article VIII of the Oregon Constitution. As approved by vote of the people of the territory on November 9, 1857, Article VIII referred to the Admission Act lands only in the context of a general provision for education. Section 2 related to the school lands and Common School Fund: The proceeds of all the lands which have been or hereafter may be granted to this state for educational purposes (excepting the lands heretofore granted to and [aid) in the establishment of a university), [along with other moneys and properties described] shall be set apart as a seperate (sic) and irreducible fund, to be called the common school fund, the interest of which, together with all other revenues derived from the school land mentioned in this section, shall be exclusively applied to the support and maintenance of common schools in each school district, and the . purchase of suitable libraries and apparatus therefor. General Laws of Oregon, Constitution of Oregon at 91 (Deady & Lane 1874)(-emphasis added). Section 5 described the composition and duties of the board relating to school lands as follows: The governor, secretary of state, and state treasurer, shall constitute a board of commissioners for the sale of school and university lands, and for the investment of the funds arising therefrom, and their powers and duties shall be such as may be prescribed by law. Id. (emphasis added). This article clearly dedicated the proceeds from the sale of Admission Act lands to the support of the schools, impressing the resulting Common School Fund with a trust "of the highest nature." Eagle Point Irr. Dist. v. Cowden, 137 Or 121, 124, 1 P2d 606 (1931). It also contemplated that the board would sell those lands and deposit the proceeds in the Con.-non School Fund. 10 It may be inferred that the Admission Act lands themselves are legally dedicated to the same purpose, for if they were not, and the board elected not to raise revenue from the sale or use of the Admission Act lands, the purpose of dedicating those proceeds would fail. In any case, the Oregon Supreme"Court on at least one occasion has held that Article VIII subjects the school lands to a trust. On the other hand, the.school lands granted to the State of Oregon are a trust for the benefit of public education. It is the duty of the state to dispose of them for as near their full value as may be, and to create thereby a continuing fund for the maintenance of public schools. Grand Prize Hydraulic mines v Boswell, supra, 83 Or at 6-7. Thus, we conclude that the obligations imposed upon the use of the Admission Act lands by the original provisions of Article VIII of the Oregon Constitution are consistent with those imposed by the Admission Act. In 1968, the people of Oregon adopted certain amendments to Article VIII, sections 2 and 5. The amendments to section 2, among other things, authorized the board to expend moneys in the Common School Fund.to carry out its duties to manage the lands under its jurisdiction. Official Voters' Pamphlet, Primary Election, May 28, 1968, at 7. The amendments to section 5 expanded the board's duties for the lands described in section 2 and added a new statement of the board's management obligations: (1) The Governor, Secretary of State and State Treasurer shall constitute a State Land Board for the disposition and management of lands described in section 2 of this Article and other lands owned by 11 e this state that are placed under their jurisdiction by law. Their powers and duties shall be prescribed by law. (2) The board shall manage lands under its jurisdiction with the object of obtaining the greatestbenefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management. Id. at 6-7 (emphasis indicates text added by 1968 amendments). For purposes of this opinion, we must consider whether the new management standard was intended to alter the trust impressed upon the Admission Act lands by Article VIII, and to authorize the use of such lands for purposes other than for the schools."' To ascertain that intent, we look first to the language of the constitutional amendment_ See Northwest Natural Gas Co. v. Frank, 293 Or 374, 648 P2d 1284 (1982); Monaghan v. School District No. 1, 211 Or 360, 315 P2d 797 (1957). We do not find in that language any intent to alter the purpose for which the Admission Act lands may be used, i.e., for the use of schools. The management standard in Article VIII, section 5(2), of the Oregon Constitution simply directs the board to manage the lands with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management. The words "with the object of obtaining" do refer to purpose and intent. Yet the stated purpose, "obtaining the greatest benefit for the people of this state," is consistent with the dedication of the Admission Act lands for the use of schools, and that use exclusively. The "greatest benefit" would mean only "greatest 12 f benefit not otherwise inconsistent with the trust purpose of 'use for schools.'" Such a reading also would avoid any conflict between the management standard in Article VIII and the dedication "for the use of schools" in the Admission Act. And, conservation of the Admission Act lands is fully consistent with the duty of a trustee to conserve the corpus of the trust, in this case the lands. Without more, we are unwilling to read into such vague and ambiguous language an intent to alter or supplement the original trust purpose, which was to use the lands for common school purposes. Thus, we conclude that the language of the management standard in Article VIII, section 5(2), of the Oregon Constitution does not, on its face, indicate any intent to change the purpose for which the Admission Act lands are held in trust. Because analysis of the text of the 1968 amendment does not dispositively reveal the voters' intent, it is appropriate to consider historical evidence. See Lipscomb v. State Bd of Higher Ed., 305 Or 472, 484-85, 753 P2d 939 (1988). One source of intent is the official explanation for the proposed amendments in the Voters' Pamphlet. See Northwest Natural Gas Co. v Frank, supra, 293 Or at 383. This explanation stated in part: [The proposed amendments] will authorize the State Land Board, with Legislative approval, to expend money from the Common School Fund for improvement of lands under its jurisdiction, and to manage its lands to obtain the greatest benefit for the people of this state consistent with the conservation of the resource. * * * In managing these lands, the Board is now restricted to a single objective to-maximize its cash income. * * * The Board normally cannot set aside land for public recreation, parks or scenic purposes. 13 .e The proposed amendment will remove this strict cash income objective permitting land uses varying with the location type of land and needs of the citizens of the state. Official Voters' Pamphlet, supra, at 4 (emphasis added). The explanation could be read to suggest that the voters intended to alter the permissible purposes of the Admission Act lands, by permitting the use of those lands for recreation or scenic purposes. Clearly, the pamphlet reflects an intent to alter the "strict cash income objective." However, this language does not refer directly or even by implication to the concept that the lands be managed "for the use of schools." The reference to other permissible uses, e.g., public recreation, can easily be explained as an express authorization for such uses where no good economic use of the lands for schools could presently be found, as we have concluded previously. See 38 Op Atty Gen 850, 856 (1977). It also would reflect a recognition that the board would in the future have management responsibility for lands placed under its control by statute, pursuant to new language in Article VIII, section 5(1), in addition to the "school lands" referenced in Article VIII, section 2(1). These "statutory lands" would not necessarily be dedicated to school purposes. At most, we find the language of the Voters' Pamphlet explanatory statement ambiguous. Thus, we do not infer from it an intent to alter the fundamental purpose of the Admission Act lands. Because there is ambiguity in the Voters' Pamphlet itself, it is appropriate to look at historical evidence of its intent. 14 It was the duty of the citizens committee that drafted the explanatory statement to provide an "impartial * * * statement explaining the measure and its effect." See ORS 251.215(1). To do this, it is probable that the committee considered the whole of House Joint Resolution (HJR) 7, which included recitals stating the legislature's assumptions and purpose in referring the measure. Thus, these recitals aid in construing the intent of the explanatory statement. Moreover, the recitals are entitled to some weight in determining the intent of the voters themselves, because it is likely that at least some voters were aware of the discussion which led to the referral legislation. These recitals state: Whereas the framers of the Oregon Constitution more than a century ago contemplated the ultimate sale of nearly all lands owned by this state, and the retention of the sale proceeds in the Common School Fund; and Whereas vast areas of such lands have not been sold, and conditions prevailing in this century may require the State of Oregon to retain some or all of these lands for an indefinite period; and Whereas it is essential that the State of Oregon, through the State Land Board, manage such retained lands with the obiect of obtaining the highest returns for the people of this state consistent with the conservation of this, resource under sound techniques of land management developed form time to time; and Whereas it is essential that the State of Oregon use and invest the assets of the Common School Fund with the obiect of conferring maximum aid to education in this state, consistent with prudent investment practices prevailing from time to time; and Whereas it is essential that these management and investment activities be financed adequately * * HJR 7, Or Laws 1967 (emphasis added). 15 Recognizing the impracticality of the existing constitutional focus on the sale of the land, the resolution notes that it is essential for the board to manage the retained lands "with the object of obtaining the highest returns for the people" of the state. Id. Here, again, there is no suggestion that the purpose for which the Admission Act lands are dedicated or held in trust would be changed. Indeed, the object of obtaining the highest returns for the people of the state from those lands is consistent with the purpose of using the lands for schools by producing income for the Common School Fund. See Johnson v. Dept. of Revenue, 292 Or 373, 382, 639 P2d 128 (1982)("The goal imposed by section 5(2) * * * requires the State Land Board * * * to use lands dedicated to the common school fund in such a way as to derive the greatest net profit for the people of this state.") Consistent with this purpose, the legislature proposed the constitutional amendment to authorize the board to use moneys in the Common School Fund to finance improvements and to rehabilitate the land."' Our review of the legislative history of HJR 7 discloses no reference to an intention to change the purpose for which the Admission Act lands are to be used. In sum, we think it highly unlikely that the people of Oregon would so significantly alter a trust that had been in place since statehood and recognized by the Oregon Supreme Court, without more discussion and clearer language. For these reasons, we conclude that, although the 196-8 amendment altered the scope of the board's general management authority regarding lands under 16 its jurisdiction, it was not intended to and did not alter the fundamental purpose of the Admission Act lands, which is to benefit the schools of the state. The trust obligations imposed on Admission Act lands by Article VIII of the Oregon Constitution are no less restrictive than those imposed by the Admission Act. Both require the Admission Act lands to be used for schools. Having determined the legal purpose of these lands under the Admission Act and Article VIII of the Oregon Constitution, the remaining issue is the nature of the board's management duties with respect to these lands under Article VIII, section 5(2), of the Oregon Constitution. 131 C. Management Standard in Article VIII Section 5(2) of the Oregon Constitution Article VIII, section 5(2), of the Oregon Constitution requires the board to manage the lands under its jurisdiction with the object of obtaining the greatest benefit for the people of this state, consistent with the conservation of this resource under sound techniques of land management." This "greatest benefit" standard applies to all lands under the board'.s jurisdiction. However, this standard is not itself an objective; it necessarily requires identification of the objective that would be the greatest benefit for the people, e.g., production of income, recreation, conservation. In light of our conclusion above that the 1968 amendment did not alter the trust impressed upon the Admission Act lands by Article VIII of the Oregon Constitution, it follows that 17 e t fulfillment of the trust purpose is the objective that is the greatest benefit for the people of the state with respect to Admission Act lands. Thus, we conclude that with respect to Admission Act lands, the "greatest benefit for the people" is to use the land for schools and the production of income for the Common School Fund. In this regard, the Admission Act does not limit the board in applying the management standard in Article VIII, section 5(2). The Admission Act and Article VIII of the Oregon Constitution both define the purpose for which the Admission Act lands are.to be used and, therefore, define the "greatest benefit" for the people from these lands. Accordingly, the board's management responsibilities under section 5(2) with respect to Admission Act lands is to attain the greatest benefit for the schools "consistent with the conservation of the lands under sound techniques of land management." These management responsibilities require the board to obtain full market value from the sale, rental, or other use of the Admission Act lands, while conserving the corpus of the trust. 37 Op Atty Gen 569, 574 (1975). We have previously characterized this obligation as a duty to maximize the value of, and revenue from, these lands over the long term. 38 Op Atty Gen 850, 853 (1977); 39 Op Atty Gen 2199, 2204 (1978). We turn next to the practical requirements of the duty to maximize revenue from the Admission Act lands. 18 F f II. Maximization of Revenue To the extent the Admission Act lands are retained and not directly used for schools, e.g., for siting school facilities, the board must maximize revenue from its management of these lands. What does this "revenue maximization" obligation require in practice? While on the one hand the board must receive full market value from that resource, on the other, the duty to "maximize revenue" does not limit the board to "mechanical consideration" of economic factors: (A] trustee must consider risks, make predictions of future developments, and generally take into account all factors which affect risk and return and which may affect risk and return in the future. Consideration of the present and predicted economic situation in Oregon is appropriate with respect to evaluating risk and return of any possible investments in Oregon, as is consideration of the effect those investments could have on other investments of the Common School Fund in Oregon.. But in every case the consideration must be directed to determination of the appropriate action to be taken to achieve * * * benefit to the Common School Fund * * 43 Op Atty Gen 140, 143 (1983). For example, in addressing the board's management of the Elliott State Forest, we previously have advised that determining a*parcel's potential for financial return would include reducing projected timber sale revenues by the cost of timber management activities (such as road building) that the state would bear. Letter of Advice dated June 22, 1990, to James Brown, Martha Pagel, and Randy Fisher (OP-6383), at 26. In that same letter of advice, we noted that the requirement of maximum return over the long run necessarily requires a policy of sustained yield from a forest resource, because the trustee's duty to conserve trust 19 property requires the board to conserve the resources committed to its management. Id. In other words, the board may incur present expenses or take management actions which reduce present income if these actions are intended to maximize income over the long term. The "resources" of Admission Act lands are not limited to those, such as timber, that currently are recognized as revenue generators for the Common School Fund, but include all of the features of the land that may be of use to schools. Just as a trustee diversifies a trust portfolio, the board should consider uses of other resources, such as minerals, water, yew bark, etc., that may offer revenues for the fund. The board may set lands aside temporarily for the purpose of "banking" an asset while its economic value appreciates, if the board has a rational, non- speculative basis for concluding that such action will maximize economic return to the Common School Fund over the long term. Also, the board may have good trust reasons for conserving resources that have little or no commercial value at the present time. With conservation of productive trust property as its. goal, the board must view the land resource as an interrelated whole-141 Promoting the long-term health of revenue-producing resources may require conservation measures aimed at non- commercial resources such as water or soils. Above all, the board's management directive requires it to remain flexible. No land board can predict with certainty what revenue-generating opportunities or resource conservation and management concerns may develop in the future. 20 t Revenue for the Common School Fund must remain the board's overriding-objective with respect to Admission Act lands that are retained and not directly used for schools, e.g., for siting school facilities. However, the management standard in section 5(2) calls on the board to seek-methods for accommodating the broader public interest, if that can be done while still maximizing revenue for the Common School Fund. Letter of Advice dated June 22, 1990, supra, at 26. For example, the board is free to explore innovative mechanisms for securing the environmental and social benefits of preserving habitat for endangered or threatened species. Id. However, the board may use Admission Act lands to pursue these and other non-economic benefits only so long as doing so would not diminish prudent long-term economic return: (E)ven though the board's management of common school grant lands must be primarily controlled by Article VIII, § 2, the board's obligation set forth in Article VIII, § 5 to obtain the greatest benefit for the people of the state must also be considered. Where a nonincome-producing use co-exists with and does not diminish income-producing characteristics of the land, we cannot say that the State Land Board is prohibited from taking steps to implement such use. 38 Op Atty Gen 850, 853 (1977)(emphasis added)(designation of Admission Act lands as natural area preserve is proper if designation would not diminish financial contribution to Common School Fund); cf. 37 Op Atty Gen 569, 575-76 (1975)(experimental legislation to improve competition in timber industry through sales of state timber permissible if it would, in the long run, benefit the Common School Fund). Thus, if the board determines that a particular parcel of Admission Act land does not currently 21 t t offer revenue-generating potential, the board is free to manage it for any values that obtain the greatest benefit for Oregonians, consistent with the conservation of the resource under sound techniques of land management.ls' 36 Op Atty Gen 150, 223 (1972). within the constraints noted above, the board has considerable discretion in exercising its management duties. Although constitutional officers, like other public officials, are responsible in the first instance for determining their duties, courts are not constrained from reviewing that determination to assure that it was correctly interpreted. Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 479, 753 P2d 939 (1988). However, if the officer has correctly interpreted his or her constitutional duty or power, a court cannot substitute its judgment for that of the officer in carrying out that duty or power. See Putnam v. Norblad, 134 Or 433, 293 P 940 (1930); Eacret v. Holmes, 215 Or 121, 333 P2d 741 (1958); Corpe v. Brooks, 8 Or 222, 223-24 (1880). III. Exemption from Federal'or State Endangered Species Acts Neither the Oregon Admission Act nor the Oregon Constitution expressly exempts the board from complying with any law. Thus, we consider whether either creates an implied exemption from the federal 161 or state ESAs to the extent those acts conflict with the board's duty to maximize financial return from Admission Act lands. 22 A. Federal ESA In discussing the possible exemption of Admission Act lands from the federal ESA, we previously have stated: Under the law of private trusts, to which we have analogized the Admission Act trust, the trustee's duty of loyalty to the object of the trust is not unlimited. For example, that an action called for under a trust was legal at the time the trust was created is immaterial if that action has since become unlawful. Restatement (Second) of Trusts 9 166 at 347 (19S9). Moreover, an intended trust is invalid if it calls for conducting an unlawful business. Id., § 61 at 162. Therefore, the State Land Board's management of Admission Act lands is subject to applicable federal regulation. That principle, however, does not inevitably lead to the conclusion that, where actions to achieve the goal of maximizing financial return to the fund would violate the federal ESA, the State Land Board must comply with that federal Act at the expense of the fund. Despite our extensive research, we have found no authority that resolves the issue whether the federal government may use its plenary commerce and treaty powers to alter the use of Admission Act lands, where the change in use would defeat the purposes of the original land grant. We reserve that question for further study. Letter of Advice dated June 22, 1990, su ra, at 24-25. We now consider three arguments against application of the federal ESA to Admission Act lands. 171 Each argument presupposes that compliance with the federal ESA would prevent the board from maximizing financial return from the Admission Act lands. 1 _ Trust An argument could be made that, if Congress established a binding trust by virtue of the Admission Act, the Admission Act lands would be exempt from the federal ESA to the extent the federal ESA would interfere with the purpose of the trust. As noted above, with respect to private trusts, a trustee is not 23 t e under a duty to do an act that is illegal, even though the act was not illegal at the time the trust was created. Restatement (Second) of Trusts § 166 at 347 (1959). However, this answer may be less than satisfactory where it is the settlor of the trust (Congress) that subsequently *made the act illegal. This situation is more akin to an attempt by the settlor to modify the trust terms . As a general rule,'8' the settlor of a trust may modify the trust only if the settlor has reserved a power of modification. Restatement, supra, § 331 at 143. If the written instrument creating a trust does not contain a provision reserving such a power, the trust may be modified if it is shown that the settlor intended to reserve a power to modify the trust but by mistake omitted to insert such a provision. Restatement, supra, § 332 at 149, and § 367 at 246. Assuming for the sake of discussion that these principles would apply to a trust created by the Oregon Admission Act, we believe a court would conclude that Congress intended to reserve the power to modify the terms of a trust of Admission Act lands through the exercise of its power to enact general legislation that only incidently affects those lands. Evidence of the Supreme Court's view of congressional intent may be found in Case v. Bowles, 327 US 92, 66 S Ct 438, 90 L Ed 552 (1946), which held that school grant lands in Washington were not exempt from federal law setting a wartime ceiling price for timber. The Court acknowledged that "Moth the [Admission] Act of Congress * * * and the Constitution of the State, had provided safeguards in the disposition of school lands," but characterized 24 e the school land grants as having "transferred exclusive ownership and control over those lands to the State." Id. at 100. Nevertheless, the Court found no evidence that Congress intended to restrict its power to regulate the use of those grant lands: No part of all the history concerning these [Enabling Act] grants, however, indicates a purpose on the part of Congress to enter into a permanent agreement with the States under which the States would be free to use the lands in a manner which would conflict with valid legislation enacted by Congress in the national interest. Id. In Board of Natural Resources v. Mosbacher, No. C90-5495T/C (D Wash Oct. 8, 1991), the court was presented with the argument that the federal government breached its fiduciary duty to the beneficiaries of Washington's Enabling Act land grants by enacting legislation prohibiting the export of unprocessed timber from federal and state lands. It recognized that Washington's Enabling Act and its constitution, which contains explicit trust language, create an enforceable trust for the benefit of schools, and that although the state acts as trustee, "the United States retains an interest in the administration of these lands." Slip op at 4-5. Even so, the court rejected plaintiffs' argument that the federal legislation violated a fiduciary duty owed by the federal government to the Washington land grant trust beneficiaries: Case law, however, does not indicate that the federal government has a direct fiduciary duty regarding state land grant trust lands. Similarly, federal legislation, incidentally affecting state land grant trust income, is not invalid at law as a breach of fiduciary duty. Id. at 5. 25 We have found no support for an argument established by the Admission Act would create exemption from the federal ESA. We conclude Act lands are not exempt from the federal ESA intended to reserve the power to incidentally by subsequent general legislation.- that a trust an implied ghat the Admission because Congress affect the trust 2. Contract An argument also may be made that the Admission Act is a binding contract involving bargained-for consideration (i.e., Oregon received the Admission Act lands for the use of schools in exchange for giving up the right to tax federal lands), and that Congress would breach this contract by depriving the state of the opportunity to obtain maximum financial return for the schools from that land. Again, we think this argument would fail. The Contracts Clause, Article I, section 10, of the United States Constitution, which prohibits "impairment of contracts," applies to the states but not to the federal government. Thus, Congress is not prohibited from passing laws that may impair contractual obligations. In Bowen v. Agencies Opposed to Soc. Sec_ Entrap., 477 US 41, 52, 106 S Ct 2390, 91 L Ed2d 35 (1986)(quoting from Merrion v. Jicarilla Apache Tribe, 455 US 130, 147 (1982)), the court concluded that "contractual arrangements, including those to which a .sovereign itself is party, 'remain subject to subsequent legislation' by the sovereign." Similarly, the Ninth Circuit rejected the notion that contracts to which the United States is a party can never be modified. Peterson v. United States Dept of Interior, 899 26 c F2d 799 (9th Cir 1990), cert den, 111 S Ct 567 (1990). See also Case v. Bowles, supra, 327 US at 100. Accordingly, we conclude that even if the Admission Act were viewed as a solemn agreement or binding contract, Congress could modify its own contracts through exercise of its sovereign power to legislate. Cf. Board of Natural Resources v. Mosbacher, supra, slip op at 7-8 (indirect impairment of state's contractual rights under school lands trust by Forest Resources Conservation and Shortage Relief Act is permissible exercise of sovereign power). 3. Special versus General Legislation Two federal courts have labeled an Admission Act 11speciali19' legislation and held that it governs over subsequent "general" legislation. Both cases dealt with the Utah Enabling Act, which is similar to Oregon's Admission Act in that it granted Utah certain sections of land in each township for school purposes. The application of the "special versus general" theory in this context originated in Utah v. Kleppe, 586 F2d 756 (10th Cir 1978) rev'd, Andrus v. Utah, 446 US 500 (1980), where the state resisted the federal government's attempt to use standards in the Taylor Grazing Act to screen state indemnity land selections. In affirming a District Court judgment in favor of the state, the Tenth Circuit compared the Utah Enabling Act and the Taylor Grazing Act as follows: Where there are two statutes upon the same subject, the earlier being special (as is the case with regard to [the Utah Enabling Act]) and the later being general 27 e (as is the case with regard to the 1936 amendment to the Taylor Grazing Act, 43 U.S.C. § 315f, supra) it is settled law that the special act remains in effect as an exception to the general act unless absolute incompatibility exists between the two, and all matters coming within the scope of the special statute are governed by its provisions. Sutherland Statutory Construction, 4th Ed., Vol. 2A § 51.05. The latter authority summarized the general-special acts rule: General and special acts may be in pari materia. If so, they should be construed together. Where one statute deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the two should be harmonized if possible, but if there is conflict, the latter will prevail, regardless of whether it was passed prior to the general statute, unless it appears that the legislature intended to make the general act controlling. Sutherland Statutory Construction, 4th Ed., Vol. 2A, § 51.05, p. 315. We submit that the strict, continuing "trust" obligations imposed by the Congress upon the "public land" states (and willingly accepted by them) in the school land grant statutes clearly set these enactments aside as special acts complete separate and apart from all other public land grant enactments. In that sense, then, these enactments are set apart and given special, independent treatment, much akin to the special preference and treatment of Indians recognized in Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). Id. at 768-69 (citations omitted). The Supreme Court reversed the Tenth Circuit on other grounds.' Andrus v. Utah, 446 US 500, 100 S Ct 1803, 64 L Ed2d 458 (1980). The "special versus general" theory was resurrected by the United States District Court for the District of Utah in Utah v_ Andrus, 486 F Supp 995 (1979), where the state sought a right of access across Bureau of Land Management land to allow exploitation of oil and gas in an isolated section of state school grant land. The federal government refused access because 28 the Federal Land Policy and Management Act (FLPMA) prohibited degradation of wilderness study areas such as that which surrounded the state tract. Although the court's decision in the state's favor was based largely on the traditional property doctrine of implied right of access, the opinion included the. following dicta on the "special versus general" theory: The court further finds that the school land grants were accomplished under what is termed "special" legislation. Under statutory rules of construction, when "special acts" conflict with acts which deal with the same subject matter in a more general way, the special acts are to prevail, regardless of whether the special acts were passed prior to or after the general act. See Utah v. Kleppe supra, at 768-69. Of course, this rule does not apply if there is some indication that Congress intended to modify the special act. There is, however, no such indication in the legislative history of FLPMA. Indeed, the terms of FLPMA itself would indicate that Congress did not intend to amend rights under the school land grant program. See section 701(g)(6) (codified at 43 U.S.C.A. § 1701 note (Supp. 1979)). Id. at 1009-10- There are at least two reasons why this argument is not likely to be successful with respect to Oregon's Admission Act and the federal ESA. First, the canon favoring a "special" statute over a "general" one applies only when there is a conflict between two statutes dealing with the same subject matter. In Kleppe, a conflict arguably did exist: The Enabling Act gave Utah the absolute right to select indemnity lands while the Taylor Grazing Act purported.to restrict that right. We find no such conflict between Oregon's Admission Act and the federal ESA. The Admission Act is a land grant, while the federal ESA addresses wildlife conservation. Because the two acts concern 29 .t different subjects, this canon of statutory construction does not seem to apply. Moreover, even if the Oregon Admission Act does impose an obligation to maximize the financial return from the Admission Act lands, the federal ESA does not necessarily contradict it. The ESA itself says absolutely nothing about management of state lands, and in practice the ESA's prohibition against "taking" an endangered or threatened species may result only in a deferral of financial gain (rather than a loss of such revenue). Thus, if a conflict arises, it is not from what the federal ESA expressly states, but rather from how it may be applied in a particular instance. Second, the "canons" of statutory construction, such as those used by the Kleppe and.Andrus courts, are merely aids for determining legislative intent. 2A Sutherland Statutory Construction § 45.05, at 23 (5th ed Singer 1972). The fundamental issue is whether Congress intended the federal ESA ` to limit the state's use of all state land, including Admission Act lands.20' If it were necessary to resort to canons of statutory construction in order to ascertain legislative intent with respect to the federal ESA, we believe it is more likely that other canons of statutory construction (such as that favoring a broad interpretation of remedial legislation, such as the ESA) would lead a court to the opposite conclusion. Thus, we believe it is very unlikely that the state could successfully resist application of the federal ESA to Admission Act lands on the ground that the Admission Act, as special 30 .E legislation, prevails over general legislation such as the federal ESA. B. State ESA We consider three bases for an argument that there is an implied exemption from the state ESA for Admission Act lands: First, that the lands are subject to a trust requiring maximization of revenue; second, that the Admission Act is a binding contract between the state and the federal government; and third, that the board's constitutional duty to manage the Admission Act lands overrides the state ESA. 1. Trust Assuming the Admission Act creates a trust, the state could not alter the terms of the trust without the consent of the settlor (Congress). Restatement, supra, § 338 at 167. The state ESA, however, does not alter the terms of the trust. Since the state ESA is a lawful exercise of the state's inherent power to legislate, and its effect on trust lands, if any, is only incidental to its primary purpose, we doubt that a court would find the Admission Act lands to be exempt from the state ESA based upon a trust created by the Admission Act. Cf. Mosbacher, supra, slip op at 5 (enactment of legislation incidentally affecting trust is not a breach of fiduciary duty). Where a trust is imposed by the Oregon Constitution, the question becomes one of the legislature's authority to interfere with the constitutional duties of the board (the trustee). We discuss this issue below. 31 e 2. Contract Both federal and state constitutions provide that the state may not enact laws that impair contractual obligations. An argument could be made that, by enacting the state ESA, Oregon has impaired the state's obligations under the Admission Act compact. In our opinion, however,-such an argument would not be sustained by the courts. a. Federal Contract Clause Article I, section 10, of the Federal Constitution provides that "no state shall * * * obligation of contracts." terms, this clause applies to include contracts to wh Peck, 10 US (6 Cranch) 87, prevents state legislature pass any * * * law impairing the As we have already noted, by its to the states, and this has been held ich the state is a party. Fletcher v. 3 L Ed 162 (1810)(Contract Clause from invalidating state land grants). The Contract Clause, however, has never been read literally. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 US 470, 502-03, 107 S Ct 732, 94 L Ed2d 472 (1987); W.B. Worthen Co. v. Thomas, 292 US 426, 433, 54 S Ct 816, 78 L Ed 1344 (1934). Instead, it has been read to accommodate the legitimate exercise of other state powers. In particular, the courts have read the Contract Clause to permit states to enact laws that promote the health, safety and welfare of its citizens. Thus, in the landmark case of Home Bldg. & L. Assn. v. Blaisdell, 290 US 398, 54 S Ct 231, 78 L Ed 413 (1934), the court upheld a statutory moratorium on home foreclosures, even though the effect of the 32 . t moratorium was an impairment of obligations under existing mortgage contracts. As the court explained: 'It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the.common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.' Id. at 437 (quoting Manigault v. Springs, 199 US 473, 480 (1905). We know of.no suggestion that the state ESA represents anything other than a valid enactment resulting from the legitimate exercise of the state's "sovereign right" to protect and promote the welfare of its people. To the contrary, the power of the state to enact laws for the protection of fish and wildlife is well-established. See, e.g., Anthony v. Veatch, 189 Or 462, 474, 220 P2d 493 (1950)(11the preservation of fish and game is within the proper scope of the police power"). Thus, we find it highly unlikely that the courts would entertain any notion that the state ESA violates the federal impairment of Contracts Clause. b. State Contract Clause Article I, section 21, of the Oregon Constitution provides that "No * * * law impairing the obligation of contracts shall ever be passed * * As in the case of the federal impairment of Contract Clause, Oregon's counterpart has been held to apply to contracts to which the state is a party. Campbell v. Aldrich, 33 e 159 Or 208, 213-14, 79 P2d 257 (1938). Also as in the case of the Federal Contract Clause, the Oregon Contract Clause has never been read literally. It has instead been read to permit the state to enact laws pursuant to other constitutional or sovereign powers that have the incidental effect of altering contractual obligations. As the Oregon Supreme Court has stated: "[T]he police power cannot be bargained away." State Highway Com. v. Clackamas W. Dist., 247 Or 216, 221, 428 P2d 395 (1967); see also Campbell, 159 Or at 217 ("the obligations of contracts must yield to a proper exercise of the police power"); Schmidt v. Masters, 7 Or App 421, 434, 490 P2d 1029 (1971)(all contracts are "necessarily subject to being modified by requirements.of laws enacted in pursuance of the police power,-).211 There is dictum in one recent Oregon Supreme Court opinion suggesting that this view of the Contract Clause may no longer be valid. Eckles v. State of Oregon, 306 Or 380, 399, 760 P2d 846. (1988)(11the state cannot avoid a constitutional command [i.e., the Contract Clause) by balancing it against another of the state's interests or obligations," [i.e., its police power]). The court, however, has never directly discredited or overruled any of its prior Contract Clause cases, and so we take them as controlling on this question. Accordingly, we conclude that, as in the case of the Federal Contracts Clause, Oregon's Contracts Clause does not provide a likely basis for invalidating the state ESA as against the Land Board's obligations under the Admission Act.compact. 34 I 3. Constitutional Duties of State Land Board Article VIII, section 5, of the Oregon Constitution gives responsibility for the "disposition and management" of Admission Act lands to the board. This is a constitutional grant of power, upon which the legislature may not infringe. Thus, we previously advised that the legislature cannot impose regulatory requirements on the board's management of lands constitutionally dedicated to the Common School Fund if to do so would interfere with the board's exercise of its management responsibilities under Article VIII, section 5, of the Oregon Constitution. 42 Op Atty Gen 260 (1982); Letter of Advice dated May 24, 1982, to Ed Zajonc, Director, Division of State Lands (OP-5326) at 6. That advice remains accurate, but its application should be clarified in light of your questions." The general rule is that legislative action may not unduly burden or unduly interfere with another constitutional body in the exercise of its constitutional function. See Ramstead v. Morgan, 219 Or 383, 399, 347 P2d 594 (1959). In its decisions on claims that legislative enactments unconstitutionally infringe on the powers of the judicial branch, the Oregon Supreme Court has been hesitant to invalidate a statute under the "unduly burden" standard. For instance, holding that the Public Employes Collective Bargaining Act applied to juvenile court judges and counselors, the court reviewed a number of cases upholding legislation that had "considerably more direct impact" on the adjudicative process. The court stated that a violation of the judiciary's constitutional authority would occur only when 35 e legislation constituted "an outright hindrance of a court's ability to adjudicate a case" or a "substantial destruction of the exercise of a power essential to the adjudicatory function." Circuit Court v. AFSCME, 295 Or 542, 551, 669 P2d 314 (1983). Mere apprehension of unconstitutional interference will not invalidate a statute on separation of powers grounds. Id. See also State ex rel Emerald PUD v. Joseph, 292 Or 357, 362, 640 P2d 1011 (1982)(upholding constitutionality of statute requiring Court of Appeals to hear and decide certain type of case within 90 days); Sadler v. Oregon State Bar, 275 Or 279, 295, 550 P2d 1218 (1976)(application of Public Records Law to State Bar disciplinary records "does not unreasonably encroach" on judicial function of disciplining lawyers and is therefore constitutional.) From these decisions, it is clear that a statute does not impose an unconstitutional burden on the judicial branch unless there is a substantial destruction of i the exercise of a power essential to the functioning of the judicial branch. We think that a similar analysis would apply to general statutory regulations that do not substantially destroy the board's management powers over Admission Act lands. The state ESA requires a state agency to "consult and cooperate" with the Oregon Department of Fish and Wildlife (ODFW) and, before taking any action on land owned by the state, to "[d]etermine that the action * * * is consistent with programs established by the [State Fish and Wildlife) (C)ommission pursuant to ORS 496.172(3)" for the protection and conservation of threatened or endangered species. ORS 496.182(2)(a). If no 36 r such program has been established by the commission, an agency must "determine whether [the intended] action has the potential to appreciably reduce the likelihood of the survival or recovery" of a threatened or endangered species and, if so, notify ODFW. ORS 496.182(2)(b), (3). If the agency then fails to adopt ODFW's recommendations, the agency must, after consultation with ODFW, demonstrate that: (a) The potential public benefits of the proposed action outweigh the potential harm from failure to adopt the recommendations; and (b) Reasonable mitigation and enhancement measures shall be taken, to the extent practicable, to minimize the adverse impact of the action on the affected species. ORS 496.182(4). On its face, the state ESA does_nnr restrict the board's exercise of its constitutional powers over the disposition and management of Admission Act lands. The restrictive portions of the ESA are not directed at the board alone, but apply generally to all state agencies. Unlike a statute purporting to require the board to sell, or not to sell, a specified amount of timber from Admission Act lands, the state ESA does not explicitly require or prohibit any particular action with respect to the "management" of the Admission Act lands. A "general institutional inconvenience is not enough to render legislation constitutionally defective." Circuit Court v. AFSCME, supra, 295 Or at 551. The question, therefore, is whether the state ESA, as applied, unduly burdens or interferes with the board's 37 R .c irreducible constitutional task of disposing of and managing Admission Act lands consistent with its trust responsibilities under Article VIII. This necessarily is a fact-specific determination requiring consideration of both the range of the board's discretion in managing specific property and the range of options remaining to it after complying with the state ESA. The board's duty to maximize income to the Common School Fund over the long term includes a duty to treat beneficiaries even- handedly over time. Just as it may not deplete resources in the present so that no income-producing potential remains for future generations of school children, the board also may not sacrifice the needs of today's school children in order to preserve the resource exclusively for the distant future. Within that range, however, the constitutional management standard gives the board broad discretion to decide what is the wisest use of the E~ resources that generate income for the Common School Fund, so long as that use is consistent with the goal of maximizing revenue over the long term. The Oregon Supreme Court's decisions demonstrate that the "undue burden" standard is a high one. Clearly, not every regulation that narrows the board's discretion is an "undue burden" on the board's constitutional duty to manage the lands so as to maximize-revenue for the Common School Fund over the long term. So long as the choices that remain open to the board after complying with the state ESA are choices that would not fundamentally impair its ability to maximize revenue over the long term that is, the remaining choices would fall within the 38 .0 board's discretion absent the ESA the burden is not undue. Precisely when regulation crosses the line from a "general institutional inconvenience" to an undue interference with the board's duty is impossible to define, especially in the absence of a specific factual context. In the first instance, at least, locating that line is a matter for the board. Similarly, if the board is satisfied that application of the state ESA does not prevent the board from fulfilling its constitutional responsibilities, a court is likely to conclude that the burden from the ESA is not undue. If the board were to conclude that its constitutional duty required it to disregard the ESA, it is likely that a reviewing court would accord substantial weight to the board's interpretation of its constitutional responsibility. IV. Compensation for Revenue Reductions Due to Federal ESA The Common School Fund may have a right to compensation from the federal government for asset or revenue reductions caused by compliance with the Federal ESA under two sources of law: the "takings" provisions of the federal constitution, and statutes concerning federal indemnification for loss of certain school lands. We consider each of these possibilities. A. Federal Constitutional Takings Diminution in value of property is a common consequence of regulation by the federal government. Indeed, it is difficult to imagine any set of government regulations of the conduct of business that does not in some way adversely affect the value of someone's property. This is, as the United States Supreme Court frequently has stated, merely a "burden of common citizenship." 39 I Keystone Bituminous Coal Assn. v. DeBenedictis, 480 US 470, 491- 92, 107 S Ct 1232, 94 L Ed2d 472 (1987)(quoting Mugler v. Kansas, 123 US 623, 665 (1887)1. Government regulation can go too far. At some point it can exact too high a price and trigger the constitutional requirement that "takings" of private property must be accompanied by just compensation."' Pennsylvania Coal Co. v. Mahon, 260 US 393, 415, 43 S Ct 158, 67 L Ed 322 (1922)("if a regulation goes too far it will be recognized as a taking"). Thus, regulation depriving an owner of all economic use of property has been held to be a "taking," requiring the government to pay just compensation. First Lutheran Church v. Los Angeles County, 482 US 304, 107 S Ct 2378, 96 L Ed2d 250 (1987).'' Although the Constitution expressly refers only to takings of private property, the courts have held that this constraint on government action applies to takings of public property as well. See, e.g., United States v. 50 Acres of Land, 469 US 24, 31, 105 S Ct 451, 83 L E2d 376 (1984)(Takings Clause of Federal Constitution applies to state property because loss "to persons served by (the state property], and to the local taxpayers may be no less acute than the loss in a taking of private property"); Standard Oil Companv of California v. Arizona, 738 F2d 1021, 1028 (9th Cir 1984), cert den, Chevron Corp. v. Arizona, 469 US 1132 (1985)("[d)espite the fact that the Fifth Amendment * * * is worded in terms of 'person' and 'private property,' this court has held that the United States had to pay just compensation" for a taking of state property). 40 f t The questions presented ask whether the application of the federal ESA has gone "too far" when it diminishes the value of Admission Act lands. Our answer is that it is unlikely that a taking occurs. However; any definitive opinion on these questions requires an evaluation of the particular facts of each particular case. Regulatory takings can occur in either of two ways: "facial takings," resulting from the mere enactment of a law or regulation, or "as applied takings," resulting from the application of a law or regulation to a particular parcel of land or other property interest. See generally Keystone, supra, 480 US at 494-95 (discussing differences between facial.and as applied takings claims). Your questions implicate the second of these two categories of takings cases. There is no predetermined test by which the courts evaluate as applied regulatory takings claims. As the United States Supreme Court frequently has observed, "To this day we have no 'set formula to determine where regulation ends and taking begins.' Instead, we rely 'as much [on] the exercise of judgment as [on] the application of logic.'" MacDonald. Sommer & Frates v. Yolo County, 477 US 340, 348-49, 106 S Ct 2561, 91 L Ed2d 285 (1986)(quoting Goldblatt v_ Hempstead, 369 US 590, 594 (1962)(citations omitted). Courts are instructed to evaluate as applied claims "by engaging in essentially ad hoc, factual inquiries," concerning the economic ir(ipact of the regulation, its interference with reasonable investment-backed expectations and 41 c the character of the governmental action at issue. Kaiser Aetna v. United States, 444 US 164, 175, 100 S Ct 383, 61 L Ed2d 332 (1979). Given the "essentially ad hoc, factual" nature of the inquiry, we cannot predict with any certainty how courts are likely to respond to an as applied takings claim without a complete factual record of the claim. Id. However, we can say that we think it unlikely that courts would entertain an as applied takings claim based on the adverse economic impacts of the federal ESA for at least two reasons. First, concerning the economic impact of the regulation, the courts generally require that the regulation deprive property of all, or nearly all, of its value before finding that the regulation effects a taking requiring compensation. See, e.g., Andrus v. Allard, 444 US 51, 66, 100 S Ct 318, 62 L Ed2d 210 (1979)("a reduction in the value of property is not necessarily equated with a taking"); Village of Euclid v. Ambler Realty Co., 272 US 365, 396-97, 47 S Ct 114, 71 L Ed 303 (1926)(regulation producing 75 percent reduction in value upheld); Hadacheck v. Sebastian, 239 US 394, 410, 36 S Ct 143, 60 L Ed 348 (1915)(92 percent reduction in value upheld); Haas v. City of San Francisco, 605 F2d 1117, 1120 (9th Cir 1979), cert den, 445 US 928 (1980) (80 percent reduction upheld). The Supreme Court's most recent taking decision, Lucas v. South Carolina Coastal Council, S Ct , 60 USLW 4842, 1992 WL 142517 (USSC, June 29, 1992), No. 91-453, confirms this principle. Here, the Court observed that, while states generally may not deprive land of all e 42 .c economically viable use without compensation, regulations that burden landowners with as much as a 95 percent loss may well be noncompensable. Id., 1992 WL 142517 n 8 at * 12. In light of the substantial returns that Admission Act lands have brought the state since the imposition of the ESA, 'it would be difficult to assert a takings claim based on the impact of the federal ESA. In the case of the Elliott Forest, for example, the Division of State Lands estimates that approximately 70 percent of the forest timber currently is in some way restricted by federal and state endangered species regulation but that, since the listing of the Northern Spotted Owl as a threatened species under the federal ESA, approximately 43,288,000 board feet of timber have been sold, valued in excess of $18 million. Second, courts have exhibited great reluctance to allow compensation for takings under the Fifth Amendment to the United States Constitution that are limited and only incidental to regulation. This reluctance has been evident in cases involving wildlife conservation. For example, even when outright destruction of private property results from government protection of protected species of wildlife, courts have declined to find that compensation is required. In Christy v. Hodel, 857 F2d 1324 (9th Cir 1988), cert den, Christy v. Lujan, 490 US 1114 (1989), owners of livestock complained that government protection of grizzly bears pursuant to the federal ESA resulted in large-scale destruction of their sheep herds. They asserted a regulatory takings claim based on the loss of their livestock, but the Court of Appeals for the Ninth Circuit rejected the claim: "Me hold 43 I that the ESA, and the grizzly bear regulations do not effect a taking of plaintiffs' property by the government so as to trigger the just compensation clause of the Fifth Amendment * * Id. at 1335. The harm plaintiffs suffered, the court held, was "the incidental, and by no means inevitable, result of reasonable regulation in the public interest." Id. See also Mountain States Legal Foundation v Hodel, 799 F2d 1423, 1428-29 (10th Cir 1986), cert den, 480 US 951 (1987)(rejecting takings claim based on damage caused by protected wildlife). In short, it is not possible at this juncture for us to predict with precision the extent to which application of the federal ESA to Admission Act lands could result in a claim for taking of property. The essentially "ad hoc, factual" nature of the courts' inquiry necessitates a case by case determination. We can say, however, that the cases in this area suggest that it would be unlikely such a claim would prevail, given the requirements of an as applied regulatory takings claim- B. Potential Statutory Indemnity Claim The Federal School Land Indemnity Act, 43 USC 851, 852 (1986), provides that, if school lands are disposed of by the federal government prior to the time the lands have been surveyed and title has actually passed to the state, the federal government is obligated to indemnify the state for the lost land with "lieu lands," that is, equivalent alternate property. For example, if the land to be granted to the state is located within a national forest, the federal government is obligated to permit the state to select other land in lieu of that forest land. See, e.g., Andrus 44 1 l v. Utah, supra, 446 US 500, (1980); Oregon v. Bureau of Land Management, 876 F2d 1419 (9th Cir 1989). It could be argued that, if the federal government must compensate the state for using school lands for national forests, it likewise should be required to compensate the state for effectively imposing the same restriction under the federal ESA by requiring land to be reserved for the protection of threatened or endangered species. That the argument is plausible, however, is not to say that it would be accepted by the courts. The language of the statute refers to "deficiencies" in the grants to the state by virtue of prior grants or reservations. A deficiency is far more than a diminution in value of the grant incident to otherwise valid regulation. V. Compensation for Revenue Reductions Due to State ESA Your fifth question asks whether the Common School Fund would be entitled to compensation from the state General Fund for asset or revenue reductions caused by compliance with the state ESA. The question offers no theory under which compensation might be due, and we are aware of none other than a possible claim under Article I, section 18, of the Oregon Constitution, which provides that "property shall not be taken for public use * * * without just compensation." Because the Oregon Supreme Court has held that the "basic thrust" of the Takings Clause of the Federal Constitution and Article I, section 18, of the Oregon Constitution "is generally the same," Suess Builders Co. v. Beaverton, 294 Or 254, 259 n 5 (1982), analysis of a state takings claim would 45 follow the principles discussed above concerning a federal takings claim. However, our view of the interrelation of the state ESA and the board's constitutional duties indicates that the board will not encounter a situation under* the state ESA that would give rise to a state takings claim. We conclude above that the board is not required to comply with the state ESA if compliance would unduly burden or restrict the board's exercise of its constitutional powers to dispose of and manage Admission Act lands. This amounts to a "safety valve" that averts The state ESA lawfully could not revenue from trust property over CSC:JLL: DCA:ALV:JSL: R WM: WRC:tmt/JGG03640 3 potential state takings claim: prevent the board from maximizing the long berm. 1, . CHARLES S. CROOKHAM Attorney General " Our reference to "Admission Act lands" is limited to those lands granted to Oregon by the Admissions Act "for the use of schools" and those lands received by the state in lieu of the oricinal school lands. This term does not include any other lards, the proceeds of which may be dedicated to the Common School Fund, nor does it include any lands that are placed under the board's jurisdiction by statute. We have considered similar questions in a number of our pr-4---- opinions. See, e.cr., 17 Op Atty Gen 59 (1934); 18 Op Atty Gen 238 (1937); 32 Op Atty Gen 307 (1965); 37 Op Atty Gen 569 (1975); 38 Op Atty Gen 850 (1977); 42 Op Atty Gen 260 (1982); Letter of Advice dated March 31, 1987, to Ed Zajonc, Director, Division of State Lands (OP-6094); 46 Op Atty Gen 195 (No. 8201, April 10, 1989). We do not re-examine our earlier opinions, but rather take a fresh look at the questions presented. By "maximize revenue consistent with.the prudent investor rule," we understand you to mean "maximize revenue over the loner term." Because that is the definition of "maximize 46 revenue" we have used in previous opinions on the State Land Board's responsibilities, we use it in this opinion as well. See 43 Op Atty Gen 140 (1983), 38 Op Atty Gen 850 (1977). °J In Johanson v. Washington, 190 US 179, 23 S Ct 825, 47 L Ed 1008 (1903), the court construed the Washington Admission Act grant of school lands, noting that acts making grants ,are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent, we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.' Id. at 184 (quoting Winona & St P R Co v. Barney, 113 US 618, 625 (1885)). The land grants were predominantly for schools. There also were grants of salt spring lands and lands for the seat of government and public buildings. Our discussion focuses only on the school land grants. Beyond the purpose of equalizing the states' tax bases, the land grants for schools undoubtedly had the additional purpose of encouraging education and accelerating the disposition of western lands at a higher price. See Papasan v. Alain, 478 US 265, 269 n 4, 106 S Ct 2932, 92 L Ed2d 209 (1986); cf. Northwest Ordinance, 1 Stat 52, Art III (1787)("Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."). This Act was modified by the Act of March 3, 1803, granting additional lands "for the use of the schools," in lieu of certain sections sixteen which were no longer available, "in trust for the use aforesaid, and for no other use, intent or- purpose whatever." 2 Stat 225, ch 21, 1, 3 (1802).- Later, Congress authorized Ohio to sell these school lands, and "to invest the money arising from the sale thereof * * * for the use and supvort of the schools within the several townships * * * and for no other use or purpose whatsoever." 4 Stat 138, ch 6, § 1 (1826). These statutes are the first indication that Congress may have intended to impose a trust upon the states by the grants for school lands. " The interest in granted school lands vests in the state at the date of admission into the Union, and then only as to those sections which are surveyed at that time by the United States and of which the United States has not previously disposed. United States v. Wyoming, 331 US 440, 443-44, 67 S Ct 1319, 91 L Ed 1590 (1947). Until the status of the lands was fixed by survey, and they were capable of identification, Congress reserved absolute 47 power over them; but if Congress disposed of any part of the section sixteen or thirty-six lands, Oregon was to be compensated by other lands equal in quantity and as nearly as may be in quality. United States v. Morrison, supra, 240 US at 204. s~ The list of promises that follows the quoted language does not include an express promise to use the section 16 and 36 lands only for schools. However, for the reasons discussed in the-text the state's general acceptance of Congress's propositions and the historical context, including other states' land grants and Oregon's territorial acts we conclude that the state intended to bind itself to use the lands only for schools. 9' According to a leading authority on the subject of trusts, lands designated for public purposes are not, strictly speaking, trust obligations: Where states hold land for special public purposes it is sometimes stated that there is a trust, but this is usually not true in a strict sense. There is a duty to use the property for a limited or general purpose but it arises from the acquisition of the property under special circumstances and the duties of the state created by its constitution and statutes. Bogert, Trusts and Trustees § 34 at 411-12 (2d ed rev 1984) (footnotes omitted). 10' The court did not state whether the trust arises from the Admission Act or the Oregon Constitution, but later cases suggest that the source is the Constitution. Eagle Point Irr. Dist v Cowden, 137 Or 121, 124, 1 P2d 605 (1931); State Land Board v Lee, 84 Or 431, 437-38, 165 P 372 (1917). See also United States v. Morrison, supra, 240 US at 207 (1916)(approving Secretary of Interior's statement that grant of school lands does not take effect until after lands are surveyed, but then vests "absolute fee" to the specified sections). we previously have stated that the "greatest benefit" standard was intended to "enlarge the constitutionally restricted management authority of the State Land Board with respect to the uses that could be made of Common School Fund lands." 36 Op Atty Gen 150, 230 (1972)(emphasis in original). This is undeniable to the extent the 1968 amendment now authorizes the board to manage the lands instead of simply to sell state lands. That opinion, however, did not address whether the intent was to change the purpose for which those lands are managed. See Public Lands Interim Committee Report to Legislative Fiscal Orientation Conference, December 16, 1966, at 4; Minutes, House State and Federal Affairs Committee, March 6, 1967, at 3; Minutes, Ways and Means Committee, May 12, 1967, at 208. The committee discussion and the recitals of HJR 7 reflect a concern 48 with two points of trust law, which were assumed to apply to common school fund lands. Significantly, neither of these points arose from the text of the constitution, but rather from the common law of trusts. The first point is that a trustee of a trust fund has a duty (limited by the "prudent person" standard) to "maximize" earnings from the corpus of the trust. Although this is a correct interpretation of trust law, it is not clear how this alone presented any practical difficulty for the board; it was simply required to obtain full market value from the sale, rental or other use of the lands. See 37 Op Atty Gen 569, 574 (1975). In addition, in a perpetual trust it is not necessary to maximize earnings now at the expense of earnings later. Rather, the requirement is to maximize earnings over the life of the trust, and consistent with the needs of the beneficiaries, which may grow. Thus, reduced income now in order to assure sustained or growing income later often is consistent with such trusts. The second point was critical: Prior to 1967, we had concluded in several opinions that the administrative expenses of the Common School Fund could not be paid from the fund itself; rather they must be paid from the General Fund. See, e.g., 32 Op Atty Gen 307 (1965). Common School Fund moneys could not be used, for instance, to maintain and develop Common School Fund lands. Although we recognized a split of authority, we adhered to the holding of State ex rel Owen v. Donald, 162 Wis 609, 157 NW 794 (1916). It is not necessary to reexamine the correctness of our assumption because the issue was mooted by the 1968 amendment to Article VIII, which clearly authorized the board to use Common School Fund moneys to maintain and develop school lands. Or Const Art VIII, § 2(2). This opinion addresses only the Admission Act lands. However, we see nothing in Article VIII, sections 2(1) and (2) to distinguish Admission Act lands from other lands the proceeds and revenues of which are dedicated by these sections to the Common School Fund. Thus, we believe that the same management standard applies to all of these "constitutional" lands. We note that other lands are placed under the board's management by statute, pursuant to Article VIII, section 5(1). The nature of the board's authority over these statutory lands is outside the scope of this opinion. 11! A trustee has a duty to protect trust property against damage or destruction. The trustee must do all acts necessary for preservation of trust property which would be performed by a reasonably prudent person holding property for similar purposes. Bogert, Trusts and Trustees § 582 at 346 (2d ed rev 1980)(footnotes omitted). Of course, what acts may be necessary will depend upon the facts of the particular situation. 49 13' By referring to the board's "determination" that a particular parcel of Admission Act land does not currently offer revenue-generating potential, we do not mean to imply that written findings are legally required. However, the board may, in its discretion, adopt whatever findings or procedures it believes may be useful in applying its constitutional trust standard to day-to-day land management decisions. 161 As to any trust or dedication of the Admission Act lands ,created by the Oregon Constitution; the state constitution must bend to federal law. US Const Art-VI ("This Constitution and the Laws of the United States * * * made in Pursuance thereof shall be the supreme Law of the Land"). 17 We note a possible Tenth Amendment violation, suggested by dicta in Garcia v. San Antonio Metro. Transit Auth, 469 US 528, 556, 105 S Ct 1005, 83 L Ed2d 1016 (1985), cert den, 488 US 889 (1988), that the Court might find unconstitutional any regulation by Congress under the Commerce Clause that "directly eliminate[s] state sovereignty." Any remaining vitality in the Tenth Amendment as a means of overturning duly enacted federal legislation appears to have been extinguished by South Carolina v. Baker, 485 US 505, 513, 108 S Ct 1355, 99 L Ed2d 592 (1988)("Where * * * the national political process [does] not operate in a_defective manner, the Tenth Amendment is not implicated."). Because Oregon's congressional delegation participated in the passage of the federal ESA, we do not believe a court would sustain a Tenth Amendment challenge. Cf. Board of Natural Resources v. Mosbacher, No. C90-5495T/C (D Wash Oct 8, 1991). Again, for lack of other authority, we rely on the law of private trusts. 191 In this context, '!special" refers to a type of legislation directed at an individual or group of individuals rather than to society as a whole. 20' The federal ESA is explicitly applicable to the states. 16 USC 1533(d), 1538 (a) (1) (B-C) ; see also 16 USC § 1535(f). There is no express exemption in the federal ESA for Admission Act lands. The courts have been reluctant to find that Congress intended an exemption for Admission Act lands in subsequent legislation merely because it affects the state's ability to derive maximum revenue from those lands. See Case v. Bowles, supra, 327 US at 100; and cf. Board of Natural Resources v Mosbacher, supra, slip op at 5. 211 We acknowledge that the Oregon Supreme Court has suggested that the "police power" is nothing other than the general plenary power to legislate. Dennehy v. Department of Revenue, 305 Or 595, 604 n 3, 756 P2d 13 (1988). 50 t u' Despite the language in section 5(1) that the board's "powers and duties shall be prescribed by law," we previously concluded that the board has exclusive power and authority to sell and to manage the lands under its jurisdiction independent of any legislative action. 42 Op Atty Gen, supra, at 265 n 3; 36 Op Atty Gen 150, 230 (1972). 231 In a Letter of Advice dated May 24, 1982, to Ed Zajonc, Director, Division of State Lands (OP-5326), we responded to the question whether the board was subject to ORS 273.201. That statute directly regulated the sale of state land. We concluded that the requirements of ORS 273.201 cannot validly be applied to lands belonging to the Common School Fund if the board, in exercising its management responsibility under Or Const Art VIII, sec 5, determines that application to it * * * would impair its ability to achieve the maximum financial benefits for the Common School Fund Trust. Id. at 6. This advice was limited to the applicability of ORS 273.201, which on its face conflicted with the essential constitutional duty of the board to dispose of school lands. 24' The Fifth Amendment of the Federal Constitution provides "nor shall private property be taken for public use, without just compensation." 2" Even so, the Constitution permits the government to "take" property only for "public use." See Hawaii Housing Authority v. Midkiff, 467 US 229, 104 S Ct 2321, 81 L Ed2d 186 (1984). There is no question here that the ESA serves a public use. 51 4 bl ~ ' 3 ~ m I N C O O i~ (n y m m O U E G . L N of o_ ~ v o ` 3~ J N ~ o ~ o Imm m a E m ~ &_2 E 7 fA ~ m ~ EQ m ~ E a dLL ~ ~ oZO ma~v~ O N m m O ~ O ~ Q F C W LOm C m L C mm.~ C v C c E ~ T Z5 ~ o y~a~ ~ L m ~ O O. w J m C O a ~ m o v '^mZoo L U -a ai `o io t Y O ' L O ~F- V / 1 V Cl) c J c N O n W W y 'k x •c N w~ t, 'rt Native Fish Society Statement Deschutes County, January 20 Hearing on Destination Resort Remapping By: Tom Davis, NFS Volunteer River Steward for the Upper Deschutes In summary our position on additional destination resorts in the Upper Deschutes is that we already have too many from both economic and natural resource health perspectives. The issues concern economic engines and supply/demand for our County; your legal standing for saying "no more"; the recent LUBA decision regarding streamflow reduction and stream temperature increases related to additional water use; nonpoint sources of water quality problems; and spawning-rearing gravel degradation from erosion-sedimentation. Economic engines and supply/demand Many argue that more destination resorts are important drivers of jobs and economic recovery. The drivers of our economy are the destinations, which destination resorts compromise. Since some approved or proposed destination resorts are facing foreclosure and there is an adequate supply of guest rooms in Deschutes County this argument is moot. Future demands for guest rooms and homes can be, and should be, provided in our cities or urban growth areas. The same real estate sales and jobs for homebuilders will exist and mitigating the adverse effects will be the responsibility of legally accountable public service/facility providers. If the County wants to rev up our economic engine it should protect and restore the reasons we're a destination. If you want to stimulate our economy one important alternative is to push the Bureau of Reclamation to release 300 cfs minimum below Wickiup Dam to create a 55-mile world-class tailwater fishery. The four-mile San Juan River tailwater fishery in New Mexico brings in 20 to 30 million annually to the local economy. I've been to both areas and the Deschutes would be of much higher quality. Legal standing The following is taken from a summary of Oregon law specifically prepared for use in the Deschutes County Comprehensive Planning by the Northwest Environmental Defense Center in anticipation of the angst felt by some about the "takings issue". "Measure 49 provides an exception for regulations 'restricting or prohibiting activities for the protection of public health and safety. 'As to regulations restricting agricultural and forestry land use, the statute narrows the exception by requiring that public health and safety be the primary purpose of such regulations Again, there is no case law interpreting the meaning and scope of this exception. The Oregon Legislature, however, provided the following examples of regulations that would qualify under this exception: 'A law, rule, ordinance, order, policy, permit or other governmental authorization that restricty a use of property in order to reduce the risk or consequence of fire, earthquake, landslide, flood, storm, pollution, disease, crime or other natural or human disaster or threat to persons or property including, but not limited to, building and fire codes, health and sanitation regulations, solid or hazardous waste regulations and pollution control regulations " Consistent with this definition, pollution control regulations such as water and air quality protections, erosion and sediment control regulations, floodplain regulations, ndgeline protections, storm water and 1 wastewater regulations, steep slope regulations, and transportation and street design regulations will fall under the exception. n It is clear that you can and should fulfill your obligation under Oregon and federal law to protect the public's water and fish property. Streamflow reduction and stream temperature increases Natural condkions Groundwater and the numerous dependent streams in Deschutes County are connected. Wells for destination resorts can and usually will affect the groundwater level, streamflows A and stream temperature for miles. A September, 2009 Land Use Board of Appeals (LUBA) decision remanded the County's r - - Tapproval hornburgh Wetu-tewel declines 9h destination t iti t ~.~-way P~ c~ri$t~nu„nc Erap~raum resort for this reason, so the jp~ well w~na,z b~ technical rationale and legal mandate should be clear. The Oregon Water Resources Department's Groundwater Mitigation program does a poor job of mitigating flows in the upper Deschutes reach affected by well pumping, and does not consider the impact of mitigating cold groundwater stream recharge with warm surface water. The LUBA decision leaves County destination resort decisions vulnerable to legal challenges. It states; "From the above findings, It appears the hearings officer was not persuaded by Thomburgh s experts that the potential thermal impact on Whychus Creek was so small that it could be ignored. To ensure that there would be no adverse thermal impact, the hearings officer took Tfiomburgh up on its offer to secure additional mitigation water from the Three Sisters Irrigation District: Unfortunately, in doing so, the hearings officer either did not recognize or for some other reason failed to respond to petitioner's contention that the mitigation water from the Three Sisters Irrigation District that will be generated by eliminating upstream irrigation diversions will not mitigate the destination resort's thermal impacts on Whychus Creek because that mitigation will replace cool water witfi warmer water. "The county's dedsion is remanded ry Nonpoint sources of water quality problems Nonpoint sources are a serious water quality problem in our area as LaPine illustrates. Most Deschutes County streams are on Oregon's 303d list as shown in red on the map to the right. This means they violate Oregon water quality law, primarily because of land activities such as onsite treatment, construction, riparian damage and stormwater runoff. In a November 2007 letter to Governor Kulongoski about destination resorts, the Oregon Department of Fish and Wildlife had this to say, 'If the development relies on septic systems there would likely be an impact to groundwater quality, which in turn could affect surface water quality through groundwater discharge to surface water: " Also in November 2007 the Oregon Department of Environmental Quality stated to the Governor 'Subsurface discharge to shallow soils or land application to the surface of soils may be allowed The river is sensitive to nutrients, and small increases in nutrients could result in some degradation of water quality, such as decreased dissolved oxygen, increased aquatic plant growth, and changes in pH, among others " a In December, 2005 the U.S. Environmental Protection Agency stated - "there is a significant body of science demonstrating that regulatory programs in Oregon do not adequately protect water quality and associated beneficial uses (e g, salmon/d spawning and rearing, public water supp/y). " Federal and Oregon laws mandate elimination of these problems but implementation/enforcement has been lax. This is changing as the quote from a 01/18/10 Oregonian article states: "The controversy stems from a federal law requiring 34 states, including Oregon, to combat so called non point source pollution: the fouling of waterways from small sources, like road runoff, as opposed to large, obvious polluters like factory waste pipes. "For private land development in Oregon the mandate is clearly directed to the cities and counties. Spawning-rearing gravel degradation from erosion-sedimentation Sediment from construction causes major problems for salmonids through the sliding and bouncing of eroded soil particles along the substrate surface of the spawning and rearing gravel. This is called bedload movement. Alevins, the recently hatched salmonids, live in the gravel for three to eight months. Bedload and/or suspended sediment fills and blocks the interstices, or space between substrate particles, thereby immobilizing the alevins and blocking the needed flow of water and oxygen. The water column is usually clear during bedload movement. DWWW a and wsp«ww 10W arc The following description and graphic on the left regarding alevins are from the U.S. Fish and Wildlife Service. "The eggs lie in the grave/ through the winter, as the embryos within develop. In early spring, yolk-sac firy, or alevins, hatch. The tiny fish carry a food supply (a sac of egg yo/k) attached to their bellies: They will not leave the protection of the grave/ until the yolk is used up, 12 weeks or more. " A common misconception is that such erosion and sediment movement occurs only briefly. One of the FS's top erosion specialists stated to me in email correspondence that: "When we have a large risk of erosion in a watershed, like a wildfire or logging practices 100 years ago, massive amounts of sediment get deposited in the watershed! Caspar Creek in N. G4 is a forest example of this when they first removed the redwoods a centuryago. It is still delivering unusually large amounts of sediment even though the forest is now regrown." This is particularly true in our Upper Deschutes watersheds, which contain very erodible soils. Closing We're fortunate to have numerous natural amenity destinations revolving around publicly owned water, fish, wildlife and clean air. More destination resorts will damage those amenities and are counterproductive for long-term economic recovery, so Deschutes County should eliminate the destination resort map and provisions in the Comprehensive Plan. To the degree that development mitigation is possible it must be the responsibility of legally accountable public service/facility providers. Protecting and enhancing those amenities is a legal obligation of cities and counties that is becoming clearer and is entirely defensible regarding "takings". Thank you, 0 LN6V;-0~48 Tom Davis, PE Native Fish Society Volunteer River Steward Upper Deschutes 69217 Tapidero 40 Sisters OR, 97759 V'' TROUT UNLIMITED Date: January 20, 2010 To: Nick Lelack, Peter Gutowsky, Deschutes County Planning Dept. Deschutes County Planning Commission Deschutes County Board of County Commissioners From: Darek Staab, Trout Unlimited Subject: Regarding Destination Resort Remapping On behalf of the Upper Deschutes Home Rivers Initiative and Trout Unlimited staff, thank you for your time and interest in comprehensive planning and my comments in this letter. We are an organization with over 400 local Chapter members and projects which combine volunteers, staff support, and outside grant funds to care for our local and shared natural resources. I couldn't imagine living and working in a better place. Thank you for taking the time to consider our state and local statutes and how they guide future resort development in our County. As we all know, our population has doubled in the last 10 years, and we now have more resorts than any other county in Oregon. This rapid growth and the natural resources sacrificed for that growth has lead to the decline in our native fisheries, the dangerous warming of our streams and rivers, and a loss in our open space and natural areas that draw people to our region. I know Travel Oregon contracted a study which found that travel-generated expenditures for fishing, hunting and wildlife viewing trips to Deschutes County are almost $70 million annually. I am concerned that by encouraging more resort development, we will be losing the conditions, fish and wildlife that bring people to our region. We should support our current neighborhoods, tax payers, and state guidelines, and remove properties that are not eligible for resort development. I commend your goal for this process, which was to clean up the resort map, and produce a map that truly reflects where resorts may be built according to existing statutes, and have clear and objective mapping criteria. 0 Fsc Mixed Sources SOV INK.. With this in mind I urge you to support the past years of planning work and follow three important steps to improve the map and meet state and federal laws: 1. Remove all lands that do not conform with current local or state resort statutes from the overlay map. These include: • wildlife corridors/ migration paths • big game winter range • areas that will result in detriment to threatened or endangered species • existing housing subdivisions and platted lands • flood zones 2. I also urge you to exclude the Whychus Creek watershed from the resort map, because water rights on this crucial waterway for reintroduced threatened steelhead are already oversubscribed and the creek's temperature is dangerously high for the fisheries attempting to use it for habitat. 3. Finally, I urge you to create a technical committee to update county wildlife inventories, winter ranges, wildlife corridors and habitat, and adopt recommendations from the interagency Updated Wildlife Information & Recommendations for the Deschutes County Comprehensive Plan Update. In closing, I hope the county will realize the time, energy, and professional work that have gone into our complex planning work. We are lucky to have the staff that we do and we must support their time and exceptional work. We also must support the public process by acknowledging and respecting public input, who have clearly expressed concern over the impacts of expanded resort development. I hope you will follow state and federal statutes and focus on conserving the natural amenities which have drawn people to our beautiful region. Thank you for your time and acknowledgement of these comments. Sincerely, :Drek Staa Resident of Deschutes County and Manager of the Upper Deschutes Home Rivers Initiative Testimony before County Commission Robert W. Corrigan Destination Resort Hearing 69225 Hawksflight Dr 20 January 2010 Sisters, OR 97759 Thank you for your service • Lot of work, many issues to consider • Many experts here • You will realize as I speak further that I clearly am NOT an expert in - land use, - county finances, - state law • You already have enough people trying to cloud your judgement in all of those areas and more • We did not elect bureaucrats, land use attorneys, or speculators to represent us • Please apply common sense • Three points, critical to the issue, can be addressed with common sense o Why do we have destination resorts? o The purpose of a map o Financial incentives for the County 1) Why do we have destination resorts in the first olace2 • They are an exception to the state's land use law, - conservation is the rule, destination resorts are an exception - not the other way around - no one was born with an inalienable right to build a destination resort • Confusion on this point - suburban subdivisions are not and cannot be destination resorts - existing hotels or golf courses can't wave a wand and suddenly become retroactive destination resorts • Destination resorts are targeted to promote NEW economic development and NEW tourism in underserved areas of the state • But in terms of destination resorts, Central OR is not underserved. If I were a bartender, I'd say overserved. • We have already crossed the point of diminishing returns where additional destination resorts will not attract new tourism; o just divert dollars from one resort to another, o to the destination resorts just outside UGBs o from the hotels, restaurants and other facilities that are playing by the rules • If a developer can make a case otherwise, the burden of proof to show that an exception is warranted should be on the developer. • Please insist on a full and complete economic impact assessment as a precursor to any new destination resort applications. Testimony before County Commission Robert W. Corrigan 1r Destination Resort Hearing 69225 Hawksflight Dr 20 January 2010 Sisters, OR 97759 2) The purpose of a map: to make things clear • It defies common sense to "update" a map in such a way that properties that qualify aren't highlighted, or properties that don't qualify are • Everyone wants clarity o not fair to developers to encourage them to move forward where they won't qualify, o not fair for neighbors to buy property without knowing a new gated ranchland golf course is likely to move in next door where the trees, meadows and rivers are now • 1 think we're all here - on both sides - because we expect you to make a decision • Saying that a property is ineligible, but then giving the owner an uncontested right to keep it on the map isn't a decision - that's just kicking the problem down the road • Please be clear, and make clear law. Our descendants can change laws they don't like, but in the meantime, we'll all know what the heck is going on, can get out of court and into business 3) But the county makes lots of money from destination resorts • Although some would debate this point, I am willing to grant that it's true • Government is unique in its ability to raise money by granting to a few certain privileges that it denies to everyone else. • In fact, government has a monopoly in the area of selling off rights that are otherwise illegal. • Viewed this way, there are many other ways the county might consider boosting revenues. - We could sell "speeding passes" for county roads that exempt certain drivers from tickets - people would buy those - We could legalize and tax prostitution in Deschutes County - already a money-maker in Nevada - We could sell "get out of county jail" passes - very lucrative - Sell drugs.... - There's no end of such ideas • Why don't wet Because it is a central job, essential and fundamental job, of our government to protect the rights of the many from the narrow interests of the few. • That is why we have a county commission. That's why we're here to address you three. • The open spaces, the clean water, the freely moving wildlife, the trees, the meadows, the gorgeous views here in Central OR belong to all of us. Not just those of us in the room, to all of us • You three have the solemn responsibility to protect what is ours, what will some day be our grandchildren's • The argument that we should parcel out these shared resources because it's a good way to make money is selling the county short • Keep Deschutes County a special place for ALL of us • Keep it a special place in order to stimulate tourism, fill seats and beds in all of our existing resorts, hotels and restaurants Thank you M. Kay Knott 68308 Cloverdale Rd. Sisters, OR 97759 January 19, 2010 Deschutes County Board of County Commissioners Deschutes Service Center 1300 NW Wall Street Bend, OR 97701 SUBJECT: Destination Resort Mapping Destination Resorts: I would encourage the County to modify the proposed destination resort remapping amendments to comply with the state plan. Ultimately it would save the county time and money. Deschutes County is highly reliant on tourism and has implemented policies to "protect the area, preserving its esthetic values to encourage tourism and maintain the rural lifestyle". Some of these policies have impacted negatively on some industries ability to make a living by increasing costs, reducing income and restricting ability to use their property in the most effective manner. It's important for the county's benefit, that the county provide diverse opportunities for these businesses to expand, providing jobs for citizens and revenue for the county. Agriculture in Central Oregon is no longer viable. In fact, the average income is negative $51 per acre. The various data tables conflict with one another as to number of farms, percent of county income, and various other categories. These need to be reconciled. The general conclusion seems to be that there may not be any viable agriculture in Deschutes County to merit preservation as Exclusive Farm Use, except for the open space values. It might make sense to allow for much broader uses on agriculture lands such as events, dude ranches, etc. to preserve the agricultural sense and feel of the area while allowing more creative methods of subsidizing these operations. Goal 8: "To satisfy the recreational needs of the citizens of the state and visitors and, where appropriate, to provide for the siting of necessary recreational facilities including destination resorts." I believe the current county's siting language is too restrictive and does not meet the intent of goal 8. The destination resort language should be streamlined to be more in line with state statute. The county's siting criteria are far more restrictive than state statutes allow and are more cumbersome. There is no provision for an opt-in process to avoid M49 liability for those who may lose qualifications for resort mapping. The resort siting portion of the code could be simplified to read: "Siting of Destination Resorts will be done in accordance with state statutes" Comments specific to the current language: 23.84.020 Goals 4. Delete; this is redundant. It is unnecessary to call out specific goals. 23.84.030 Policies 3.a.2. Change to: "within 3 miles of a high value crop area as defined in ORS 197.435(2) 3.a.4. Delete: This is not consistent with ORS 197.467 3.a.5. Amend sentence to comply with ORS 197.455(e) 3.a.6. Amend to read "Contiguous qualifying properties of less than 160 acres" 3.c.1-9. Delete: Language is not consistent with state statutes. Ordinance Provisions: a.2. Delete: This is a CMP consideration and should not be required at the mapping stage. 3.c.1-9. Delete: Language is not consistent with state statutes. I appreciate the opportunity to testify on this matter. Marilyn K. Knott January 19, 2010 Deschutes County Board of County Commissioners 1300 NW Wall Street Bend, OR 97701 SUBJECT: Deschutes County Destination Resort Comprehensive Plan I encourage the County to modify the proposed plan so that it complies with the State Plan. Ultimately it would save the county time and money. I believe the county's current siting language is too restrictive and does not meet the intent of statewide land use goal 8, which states: "To satisfy the recreational needs of the citizens of the state and visitors and, where appropriate, to provide for the siting of necessary recreational facilities including destination resorts." Although Deschutes County is highly reliant on tourism and has implemented policies to "protect the area, preserving its esthetic values to encourage tourism and maintain the rural lifestyle", ironically some of these policies have impacted negatively on some industries' ability to make a living by increasing costs, reducing income and restricting ability to use their property in the most effective manner. It's important for the county's benefit that the county provide diverse opportunities for these businesses to expand, thus providing jobs for citizens and revenue for the county. We must face the fact that production agriculture in Central Oregon is no longer monetarily viable. In fact, the average income is negative $51 per acre. If it weren't for the ability of farmers and ranchers to produce income from other sources, it would be impossible for them to maintain their money-losing acreages. It would make much better sense to allow for broader uses on these lands such as events, dude ranches, etc. to preserve the agricultural sense and feel of the area while allowing more creative methods of subsidizing these operations. To repeat, the siting criteria are far more restrictive than state statutes allow and are more burdensome. The destination resort language should be streamlined to be more in line with state statute. The resort siting language of the county's code could be simplified to read: "Siting of Destination Resorts will be done in accordance with state statutes" Comments specific to the current language: There are several specifics in the county code that warrant change. These have been covered in detail in other letters to you, and I will not repeat them here. I appreciate the opportunity to provide comments on this matter. Leonard J. Knott 68308 Cloverdale Rd Sisters, OR 97759 Matt Cyrus 16925 Green Drake Ct. Sisters, OR 97759 January 19, 2010 Deschutes County Board of Commissioners Deschutes Service Center 1300 NW Wall Bend, OR 97701 Re: Destination Resort Mapping. Dear Commissioners, I have farmed in Central Oregon all of my life. My family homesteaded in Central Oregon in the 1880's after moving from the Willamette Valley (where they homesteaded in the 1840's). I am currently the President of Deschutes County Farm Bureau and have served on that board in various positions for the past 26 years. I serve on the board of directors for Water for Life as well as the Oregon Farm Bureau Water Advisory Committee. I have been a volunteer for the Cloverdale Rural Fire Protection District for the past 28 years and currently hold the rank. of Captain. My formal education includes Bachelor of Science degrees in Business Management as well as Agricultural and Resource Economics from Oregon State University. Living in the Sisters area, I have had the opportunity to observe the growth of destination resorts in Central Oregon and would offer the following observations. Destination Resorts are good for the economy Destination Resorts are good for the economy and, when concentrated in an area, create a regional destination. Central Oregon's economy is now tourist-based as we have transitioned from our resource based roots. We are, in fact, better utilizing our natural resources as a draw for a tourist- based economy. Limiting construction of new resorts would hurt the local economy and be counterproductive to both the local and statewide tourism efforts. Black Butte Ranch is a good example of what a destination resort can do for a local community. When Black Butte Ranch was started in the early 1970's, Sisters was a dying timber town. The mills that had been its lifeblood closed, the whole industry was in decline, and most of the timber jobs simply disappeared. At the time, Sisters had no high school. Along came Brooks Resources and the development of Black Butte Ranch. Brooks Resources gave the businesses in Sisters money to install western facades on their buildings in order to create the western theme that is its trademark today. It also developed the Tollgate and Crossroads subdivisions in order to create affordable housing options for future employees. Today, Black Butte Ranch is a mature resort, employs over 230 people, and generates $6,827,217 in property taxes. It represents roughly 1/3 of the tax base for the Sisters school district, but contributes very few students. It was the Black Butte tax base that has allowed Sisters to have one of the best school districts in the state. Prior to Measure 5, Sisters was one of the richest districts in the state. Now, with Measure 5, all the schools in the state are benefitting from the taxes generated by this resort because only a portion of the millions of dollars in Black Butte tax dollars are returned to the Sisters School District. Thanks to the tax base in Black Butte Ranch, Sisters can still build state- of-the-art schools (construction bonds were not affected by Measure 5) and continues to have one of the top school districts in the state in spite of Measure 5's reallocation tax dollars. Sisters has been the beneficiary of the success of Black Butte Ranch and become a thriving Resort Community. The western theme, the diversity of shops, and decades of Black Butte Ranch promotion have all combined to make Sisters the livable community it has become. Concentrations of Resorts are good for the region Individual resorts can create a draw to themselves, but concentrations of resorts create a regional draw. The construction of multiple resorts in Central Oregon has allowed Central Oregon to promote itself both nationally and worldwide as a destination. This critical mass of resorts has allowed the Central Oregon region of the state to achieve what no single, or even small group of resorts could accomplish. Central Oregon is now ranked nationally and internationally as a golfing destination. Central Oregon is finally able to compete on a national level with resort communities such as Palm Springs, Aspen, Vale, Whistler. The Pacific Amateur golf tournament is a good example of multiple resort properties working together to promote a multi-course tournament that brings millions of tourist dollars to Central Oregon. As the timber economy disappeared and the agricultural economy declined, tourism became the driving force in Deschutes County. Without it, Deschutes County would be in the same dire straights as many of the other rural counties that have lost their primary industries. Destination resorts have become Deschutes County's primary industry. According to a study by the Oregon Employment Department, the payroll directly attributed to the eight resorts in Oregon in 2005 was more than $85 million annually, with an average wage of $26,132. Resorts' impacts on Farm Land, Water, Wildlife, and Public Services Farm Land There has been criticism that resorts cover good farm land, use water, use public services, and have become excuses for more "sagebrush subdivisions." Resorts are already prohibited from being placed on the best farmland and may not be sited near "high value crop areas" in order to protect farming areas that have already been deemed important to the state. Deschutes County has already determined that none of these areas exist in the county. And rightly so. Deschutes County has only marginal soils and a short growing season that severely limits the types of crops that can be grown in the area. Fifty years ago, Deschutes County had a thriving potato industry, but improved transportation and a growing global economy has made it economically impossible to compete with more efficient production areas. Destination Resorts are sited on land that is beautiful, and generally less productive for farming. Water It is a common myth that destination resorts use huge amounts of limited water resources. It is true that golf courses do use water to irrigate the grass. What most people don't realize is that per acre, golf courses use less water than most agricultural crops, but generate far more economic value. Homes use even less water. While golf courses are a popular amenity, they are not required for resort development. Assume a typical golf course has 120 acres of irrigated turf and generates 25,000 rounds per year at $60 per round. It generates a gross revenue of $1.5 million, employs 30 to 40 people, and pays tens of thousands of dollars in property tax. That same 120 acres in hay might produce four tons per acre or less at $160 per ton (current value assuming no rain). This would generate gross revenue of $84,000, employ one to two people, and pay only a few thousand in property taxes. Our records show that over 70% of the play on Aspen Lakes Golf Course is from outside the Central Oregon. Therefore, a good portion of the 25,000 people who play the course come from outside Central Oregon, stay in resorts or local motels, buy their meals, and generally make a significant positive impact in the local economy. The current siting language prohibits siting of resorts on irrigated tracts of EFU of more than 40 contiguous acres or irrigated LFU tracts of more than 60 non-contiguous acres. There is no requirement as to the dependability of the water rights on the property. For example, the water may be a junior right and only available for irrigation one out of five years. If this language were to be left in, it should clarified that it only apply to EFU with water that is available 100% of the season. The preference would be to eliminate this condition due to the fact that it would force development on dry land and require developers to dry up irrigated land in order to obtain water under the current mitigation rules. A number of years ago, the USGS survey determined that there is a strong likelihood of hydrologic connection between the underground aquifer in the Deschutes Basin and the springs that flow into Lake Billy Chinook, and therefore the flows at the mouth of the Deschutes River. Based on this theory of connectivity, it was determined that any new groundwater withdrawal would result in a reduction of flow at the mouth of the Deschutes River, (the lower Deschutes is a protected state wild and scenic river). In order to lessen these impacts, new ground water withdrawals are required to mitigate by putting 1.8 gallons of water back into one of the basin rivers for each one gallon of new withdrawal from the aquifer. Herein lies the problem. Because irrigated agriculture holds the rights to most of the surface water in the Deschutes Basin, the primary source of water for stream mitigation must come from irrigated agriculture. Presently, there are only two ways to obtain water from irrigation lands. The first is to buy the water outright and dry up irrigated lands, and the second is to fund conservation projects in order to obtain "conserved" water (piping projects are the current favorite). The first of these two options is generally the cheapest and easiest. The conserved water option also has the potential for long term harm to any ecosystems that may be reliant on the open ditches and canals that may be lost as a result of conservation projects (ditches and canals are an important water source for big game animals as well as nesting sites for numerous song birds, etc). Since most of the irrigated land in the Deschutes Basin falls within one of the various irrigation districts, for practical purposes, resorts cannot be sited on irrigated land. Therefore, the prohibition on siting within an irrigation district would require siting a resort on land without water rights and obtaining those rights through the mitigation process. In simple terms, in order to obtain water for a 1,000 acre resort, a developer may be required to purchase water rights from, and dry up, 1,800 acres of farmland. The alternative would be to purchase irrigated land within the district and petition to have the land removed from the district boundary, which serves no beneficial purpose; or participate in one of the limited number of conservation projects. Drying up irrigated farmland and moving the water out of the district would likely result in long term harm to the irrigation district as well as the agricultural base of the region. The reality is that it would lessen the impact on irrigated agriculture if resorts were encouraged to be sited on irrigated land rather than creating a virtual prohibition by restricting siting within irrigation districts. In fact, the district manager that I spoke with would welcome a resort as a patron and water user of the district. Right to Farm restrictions can protect neighboring farms against nuisance complaints or other potential conflicts with resorts. Retaining the current prohibition against siting on irrigated EFU lands will have a negative impact on irrigated agriculture. Please remove this provision. Wildlife The provision in county code that requires mitigation for wildlife habitat is not found in state statute, but rather was added to county code at the request of the development community to allow mitigation of wildlife impacts as an alternative to restrictions on potential habitat reduction. The courts have morphed this to include fish habitat that might be affected by ground water withdrawals and its potential affect on the flows in the lower Deschutes. This provision does not exist in state statutue, nor does it contain any language requiring wildlife or habitat protections. In fact, there is no data to support the claim that wildlife avoid resorts. On the contrary, I submit the attached wildlife survey that was conducted on three parcels of land in the Sisters area. They include the developed portion of Aspen Lakes, an adjacent undeveloped parcel, and a farm parcel. As is shown on the report, all three have very similar distributions of wildlife. The notable exception is that the report fails to include the numerous aquatic species that are also present on the developed parcel. It should be noted that the undeveloped parcel had the least number of animals. Deschutes County is already roughly 80% public land and there is no reason to burden private landowners with the care of the state's wildlife. If it is determined to be in the public interest to encourage private landowners to provide habitat for wildlife, such cooperation should be done through incentive programs rather than regulation. Public Services Destination resorts use far less public services than they provide. For the most part, destination resorts are self contained, in that they use little or no outside public services. In fact, the Black Butte fire, ambulance, and police routinely leave the ranch to assist other service districts far more than they receive, for a net export of services. Most people don't realize that generally the first ambulance on the scene of any major accident on the Santiam Pass is from Black Butte Ranch and that Black Butte Ranch's ladder truck routinely leaves the ranch to assist neighboring fire departments in Western Deschutes and Jefferson Counties. Under mutual aid agreements, Black Butte Ranch and Sunriver respond to emergencies in other jurisdictions far more often than others respond to theirs. Resorts typically have their own water and sewer systems. Resorts such as Eagle Crest, that don't have their own emergency systems, pay more in taxes to the affected taxing districts than they use in services. The emergency service districts that I am familiar with are delighted to have resorts in their service areas. Recent discussions with the Deschutes County Sheriff's office revealed that they have very few calls into the Eagle Crest resort, but receive a considerable amount of tax dollars from that area. Destination resorts actually subsidize the public services enjoyed by the rest of us non-resort residents. Though not a resort, the Aspen Lakes development's water system allowed the Cloverdale Rural Fire Protection District to challenge the district's ISO rating and drop from an ISO of eight to a six. This resulted in a fire insurance savings district wide of 20% to 30%. Every tax payer in the district saved money on insurance as a direct result of Aspen Lakes. The addition of homes continues to add tax dollars to the district and has helped the district upgrade both equipment and personnel over the past few years. Destination Resorts are not your typical sagebrush subdivisions. While there are a number of permanent residents in destination resorts, many are second homes that are occupied only weeks or sometimes months per year. These homes are often valued in excess of a million dollars and generate thousands of dollars in tax base for homes seldom occupied and that use little or no services. For the affected taxing district this is "free money." Because the economic multiplier for Central Oregon is greater than two, each million dollar home that is built, generates more than two million dollars in the local economy. There are many thousands of ancillary jobs that are reliant on the Central Oregon resort industry, from contractors, and home furnishing companies, to sign makers, and nurseries. I would argue that the majority of the Central Oregon economy is now reliant on construction and resort development. The people who are permanent residents of the resort, are often retired professionals who are apt to donate their time and money to the local charities and causes, or they are business owners and community leaders who create the living wage jobs that keeps the economy working. Fiscal and Economic Impacts of Destination Resorts in Oregon As Prepared for Central Oregon Land Watch This document presents some interesting arguments on the premise that Destination Resorts have a negative impact on the economy rather than the generally accepted view that they are beneficial. First, it should be noted that the authors do not appear to have the credentials to undertake such a study. The principal author is educated in Urban Planning and Mechanical Engineering. The research and analysis was done by an individual who lists History and Criminal Justice Administration as his areas of study. This document is riddled with flaws, both in their understanding of basic economic theory and in their statement of facts. For example, the study assumes an average wage for resort employees of $16,000 in spite of the fact that the Oregon Employment Department determined in a 2007 study (attached) that the actual average resort wage was over $26,000. The study used statewide averages for other assumptions such as number of persons per household and ignored the fact that typical resort houses are actually far below average for occupancy, student loading on schools, and general use of services. The methodology used in determining transportation costs is hard to debate based on the fact that it is completely different than that used by anyone else. It's somewhat like having a serious debate about warp drive technology on the Starship Enterprise. It's very difficult to find a common base to begin the debate when the methodology is fictitious. From an economics standpoint, the report tries to discount the concept of the multiplier effect on the economy. This is one of most basic premises in economics and only points out the author's limited knowledge in the field of economics. Many economic studies and much data support the conclusion that resorts are one of the best case scenarios for housing, in that they have low occupancy, low need for services, but provide considerable tax revenues and contribute heavily to the economy. if we were to assume that resorts do not pay their way, then all other forms of housing are a more serious drain on the economy and the more affordable the house the greater the impact. Mapping of Existing Subdivisions The proposed siting criteria would drop all existing subdivisions off the map. I would encourage these properties to be left on the map if they otherwise qualify. Much testimony has been heard regarding the opposition to "gated communities posing as resorts". Given the opposition to basic subdivisions, but general support for tourist based resorts, why not, instead, encourage conversion of subdivisions to resorts. These communities would have to create recreational amenities and open space that would otherwise not be present and in doing so, improve their communities and increase their property values and tax base. Conversion from a subdivision to resort would be a substantial hurdle that most subdivisions could not attain, but why prevent them from trying. Destination Resorts are critical to the Central Oregon Economy In short, destination resorts are a good, clean, industry that use few resources, but create jobs, tax revenue, and improve the overall livability of the communities where they're located. The Central Oregon economy was especially hard hit in the 1980s with the decline of the timber industry. It was fortunate to be able to transition its economy to the tourism base that it now enjoys. Destination resorts are a critical component of that tourism economy and should be encouraged. Imposing a moratorium on additional resorts in Central Oregon would be akin to the state stepping in and creating a similar moratorium on any new high tech manufacturing in the Portland Metro area. It simply doesn't make sense for the state to limit an area's ability to determine its own economic vitality and future. Prohibiting resorts altogether is also not the answer. Resorts in Central Oregon have proven important to the tax base and the regional economy (especially in today's economic climate). I would argue that the substantial tax base provided by the area resorts has had a statewide impact on school funding (Measure 5) and reduced political pressure on the farm use assessment enjoyed by the agricultural industry. Thank you for the opportunity to comment on this important issue. It is my strong opinion that the county's resort provisions should be streamlined to more nearly match those of the state. In this case, more is not better. I would encourage the county to defer to the state's siting language. Sincerely, Matt Cyr resident Deschutes County Farm Bureau Wildlife Inventory of the Aspen Lakes Resort Prepared for The Aspen Lakes Resort Attn: Matt Cyrus Prepared by Ron Gaines Fred Small Pacific Habitat Services, Inc. 9450 SW Commerce Circle, Suite 180 Wilsonville, Oregon 97070 (503) 570-0800 (503) 570-0855 FAX PHS Project Number: 3620 28 October 2007 TABLE OF CONTENTS INTRODUCTION .............................................................................................................1 SITE DESCRIPTION .......................................................................................................1 METHODS .........................................................................................................................1 RESULTS ...........................................................................................................................2 DISCUSSION .....................................................................................................................3 CONCLUSION ..................................................................................................................4 LITERATURE CITED .....................................................................................................4 Figure 1- Area Map of the Aspen Lakes Property ............................................5 Figure 2 - Wildlife species of the Eastern Cascades Juniper Scrub Habitat 6 Figure 3 - Wildlife Observed on the Aspen Lakes Property ................................7 INTRODUCTION The Aspen Lakes Resort is proposing to expand the footprint of its development onto two parcels of land, one north and one south of their current development and golf course. Pacific Habitat Services (PHS) was asked to perform a wildlife inventory of the Aspen Lakes Resort to assess potential impacts the proposed expansion may have on species residing in the area. SITE DESCRIPTION The Aspen Lakes Resort is located approximately three miles northeast of Sisters, Deschutes County, Oregon. Currently this development has a lodge, a number of occupied residences and an operating 18-hole golf course. The current plan involves developing two adjoining parcels of land. The northern parcel, approximately 326 acres in size, is located T14S, R10E, Section 35. The second (southern) parcel, approximately 160 acres in size, is located in T1 5S, RI OE, Section 12 (Figure 1). The Aspen Lakes Resort is located in the western juniper woodlands of central Oregon. This plant community extends from California to the Columbia River and from the eastern flank of the Cascades to the Owyhee Plateau. The habitat on the existing development has been altered with the construction of homes and the golf course. Open space on the existing development consists of native juniper woodlands and manicured fairways and greens. A significant change that has taken place is the establishment of water elements (water hazards and decorative stream-like features). METHODS Information regarding wildlife use of the site was gathered from several sources. A search of the Oregon Natural Heritage Information Center (ORNHIC) data base was requested for any records of rare, threatened and endangered species on or within two miles of the proposed development site. Also requested from the ORNHIC was a review of the ORNHIC Wildlife Relationship Matrix for the Eastern Cascades Juniper/Shrub habitat type. Local officials from the Oregon Department of Fish and Wildlife (ODF&W) were canvassed for information on wildlife use of the site and visits were made to the proposed development site to identify unique habitat characteristics and to gain first hand knowledge of the types of wildlife found on the site. To assess potential wildlife impacts on developed vs. undeveloped sites, wildlife observations were made on six, quarter-mile long transects. Two transects were placed on the northern parcel, two on the existing development and two on the southern parcel. Wildlife observations recorded along these transects were intended to document species diversity on undeveloped vs. developed sites and were not intended to be used to estimate wildlife abundance. Placing transects on the various parcels ensured that a relatively equal amount of time was spent on each parcel. Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 1 RESULTS Results from the ORNHIC data base search showed no records of rare, threatened or endangered species of wildlife on or near the proposed development site. A copy of this information is included as Appendix A. Additional information from the ORNHIC on the Eastern Cascades Juniper/Shrub habitat indicated that this area is of good or high quality habitat for a number of species. A list of these species is presented in Figure 2. Correspondence from ODFW biologist Stephen George concurred with the ORNHIC findings (copy enclosed). Mr. George did say that the property is located in historic mule deer winter range but is outside of the Deschutes County protection zone for mule deer winter range. Mr. George also added that the property includes valuable wildlife habitat for numerous wildlife species. Site visits were conducted to the property on 24 February, 03 October 2006, 13 - 14 June 2007 and 13 September of 2007. The Aspen Lakes Resort is located in a transition zone between two climax forest zones, the Ponderosa Pine and Western Juniper zones. The area includes vegetation communities ranging from mixed pine juniper forest and scattered pine or juniper-dominated stands, to sagebrush flats, irrigated cottonwood plantations, and irrigated hayfields. The most prevalent community type in both study areas is a transitional forest community in which pine and juniper are codominant. While Ponderosa pine (Pinus ponderosa) is dominate in small patches of the forested areas, both parcels appear to be too xeric for pure pine stands to develop. Instead, mixed stands of Ponderosa pine and western juniper (Juniperus occidentalis) are most common. Big sagebrush (Artemisia tridentata) is often an understory component. It was observed that much of the sagebrush understory on both parcels was dead. Evidence of fire was observed on some of large snags and stumps found on the property but the most likely reason for the condition of the sagebrush is that the juniper has outcompeted it, depriving it of essential water and nutrients (Miller et al, 2005). Healthy stands of big sagebrush and other shrubs, including bitterbrush (Purshia tridentata), rabbitbrush (Chrysothamnus nauseosus), and currant (Ribes sp.) persist in more open areas of the site, especially on the South Parcel. The topography of the northern parcel is generally flat with several open rocky areas that provide meadow-like habitats. These areas are devoid of trees and are primarily vegetated by grasses. The southern parcel exhibits more topographic relief than the northern parcel. Canopy cover is greatest in the north and decreases in the southern two thirds of the parcel. The southwest quarter of this parcel is irrigated and is under different forms of agriculture. There is also a sand mining operation in the very southwest corner of this parcel. Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 2 To determine which species of wildlife the property could potentially be of value, the ORNHIC Wildlife Relationship Matrix was referenced'. This matrix ranks the importance of different habitat types in Oregon to the wildlife species found in the state. The rankings indicate the suitability of a particular habitat type for a particular species. The rankings range from 0 (not habitat) to 5 (high quality potential habitat). According to the Matrix, the habitat on property is considered good to high quality potential habitat for 32 bird species, 18 species of amphibian and reptile, and three species of mammal. A list of these species is presented in Appendix A. Figure 3 represents the species observed on the developed and undeveloped parcels. A total of 61 different species of wildlife were observed during this investigation. Thirty two species of wildlife were observed on the existing development, 29 species on the northern parcel and 31 species on the southern parcel (Figure 3). By far, avifauna was the most common wildlife on the three areas surveyed followed by mammals and then reptiles. Twenty eight species of birds were observed on the existing development, 21 species of birds were observed on the northern parcel and 31 species on the southern parcel. Three species of mammals were observed on the existing development, six on the northern parcel and five on the southern parcel. One species of reptile was observed on the existing development, two on the northern parcel and one on the southern parcel. DISCUSSION Nearly all of the species observed on the undeveloped north and south parcels are likely present on the existing development at some point during the year even though they were not observed on any of the visits to the development. Black-capped chickadees, for example, were not observed on the existing development but there is no reason that they wouldn't use the edges and wooded areas of the existing development. The converse is not true for some of the species observed on the existing development, such as those that show an affinity for aquatic habitats. It isn't likely that spotted sandpipers or red-wing blackbirds would be seen in a juniper woodland. The number of species observed on one parcel over another was not that different. Many of the species for which the Eastern Cascades Juniper/Shrub habitat type is considered good to high quality were not observed during any of our visits to the area. This may be due to the fact that the Aspen Lakes Resort property is located on the western edge of this habitat type. The type of wildlife found here may be strongly influenced by the pine and Douglas fir dominated habitats to the west of the Aspen Lakes Property. While the establishment of water features has made it possible for a greater variety of wildlife to be found on the Aspen Lakes Property the water features themselves are not necessarily permanent. They are not self sustaining from a hydrological stand point. In most cases the presence of water in the various features around the existing development is entirely dependent upon managers of the existing development putting water in those ' This matrix was developed by the ONHP in support of ODF&W's Conservation Strategy for Oregon. Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 3 features. Because the water features are not permanent, self sustaining systems they are not in a true sense aquatic habitats. CONCLUSION Observations of wildlife on the undeveloped parcels near the Aspen Lakes Resort identified species that are adapted to a juniper woodland habitat. Most, if not all of these species could also be found on the existing development itself. Overall the diversity of wildlife species found in the vicinity of the Aspen Lakes Resort has increased due to the establishment of water features. LITERATURE CITED Miller, R.F., J.D. Bates, T.J. Svejcar, F.B. Pierson, and L.E. Eddleman. 2005. Biology, Ecology, and Management of Western Juniper (Juniperus occidenta/is). Oregon State University Agricultural Experiment Station Technical Bulletin 152. 82pp. Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 4 Figure 1 - Area Map of the Aspen Lakes Property Page 5 Figure 2 - Species for which the Eastern Cascades Juniper Scrub Habitat is considered good or high quality. Birds Herptofauna Mammals Turkey vulture . Great basin spadefoot Pallid bat . Sharp-shinned hawk Bulffrog Deer mouse Swainson's haw Ec Northern alligator lizard Mule deer Red taifed hawk Southern alligator lizard Ferruginous hawk Short-horned lizard 'Golden eagle Sagebrush lizard American kestrel Western fence lizard Prairie falcon Side blotched lizard Mourning dove Western skink Barn owl Rubber boa Common nighthawk Western racer Common`poorwilI Sharptail snake Northern flicker Ringneck snake Dusky flycatcher Night snake Say's phoebe California' mountain kingsnake Western kingbird Striped whipsnake, Horned lark Gopher snake Cliff swallow Western rattlesnake Black-billed magpie American crow common raven Rock wren Canyon wren House wren Mountain bluebird Loggerhead shrike Lazuli bunting Lark sparrow Fox sparrow Brown-headed cowbird Lesser goldfinch American goldfinch. . Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 6 Figure 3 - Wildlife observed on the Aspen Lakes Property Common Name Existing North Parcel South Parcel Development Canada Goose Mallard Killdeer Spotted Sandier Turkey Vulture Northern Goshawk Red-tailed Hawk American Kestrel Prairie Falcon Falcon s Great Horned Owl Morning Dove Night Hawk Hummingbird (sp) Northern Flicker Hai Woodpecker Western Kingbird Flycatcher (sp) Western Wood Pewee Tree Swallow Violet-green Swallow Barn Swallow Scrub Jay Pinyon Jay Steller's Jay Clark's Nutcracker Black-billed Magpie American Crow Raven Black-capped Chickadee Mountain Chickadee Western Bluebird White-breasted Nuthatch Townsend's Solitaire Red-breasted Nuthatch American Robin Pygmy Nuthatch Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 7 Hutton's Vireo Yellow-rumped Warbler Green-tailed Towhee Chipping Sparrow Brewer's Sparrow Junco White-crowned Sparrow Golden-crowned S arrow Red-wing Blackbird Brewer's Blackbird American Gold Finch Red Crossbill House Finch Western Fence Lizard Western Skink Lizard s Garter Snake Mountain Cottontail Rabbit Chimpunk (sp) Merrian's Ground Squirrel Douglas's Squirrel Bushy-tailed Woodrat Coyote Mule Deer Birds 28 21 31 Reptiles Mammals Total 32 29 37 Blue color indicates a particular species was observed on a particular parcel. Wildlife Inventory of Aspen Lakes Resort, Sisters, Oregon Pacific Habitat Services, Inc. / PHS#3620 Page 8 Pagel of 2 Bonnie Baker From: Jeff Walton Owalt9@gmaii.com] Sent: Tuesday, January 19, 2010 12:53 PM To: Board Subject: remapping project Attachments: Staff_Report_7-23[1 ].pdf Commissioners, I wanted to voice my opinion on the current Resort Destination Remapping Project. It seems to me that we are spending a tremendous amount of time on this effort when the course of action seems rather obvious to me. Doesn't it stand to reason that each piece of land within Deschutes County either meets the current local and state laws for being classified as resort destination eligible property or not? If current land doesn't meet current criteria to be included on the map, then it shouldn't be included. Why are we making this so difficult? After the new map is created which should only Include current resort destination eligible land, if a property owner that is not included on the map wants to approach the county and attempt to have their land rezoned ...then great ...they can go through the normal process like any other land owner in Deschutes County. How would it be helpful to allow every land owner in Deschutes County the opportunity to request that their land be included on the map? I live on 2/3 of an acre in the City of Bend. What sense would it make to allow me to include this property on the map when clearly it could never be allowed to become a resort property? What we will end up with under this scenario is a Resort Destination Map that will make no sense and have very little value. I also believe that our agricultural land should be preserved for just that, agricultural purposes. While I understand that in the short run Deschutes County agricultural land does not look overly attractive from a financial perspective, I honestly do believe that will all change as we move into the post peak oil era. Once oil prices accelerate beyond $150 per barrel in the future, our local agricultural land will become far more valuable than its current underlying development value. Whether this land is used to grow hay, vegetables or solar, we are going to need all of it to support our "buy local" community requirements. From a real estate perspective, I cringe at the thought of more resorts coming into Deschutes County. The last thing I want is more inventory to compete with my already battered home price. I just read today on www.RealtyTrac.com that it won't be until 2015 that we work our way through the foreclosure inventory that only continues to grow. Oregon is now ranked #11 nationally in foreclosures. My guess is Deschutes County probably ranks 1st within the State of Oregon. 1/19/2010 Page 2 of 2 I am also tired of hearing that destination resorts will save Deschutes County with increased jobs and tax revenue. As a City of Bend property owner, I no longer want to pay for the infrastructure deterioration that accompanies this kind of growth. As far as job growth, let's focus our efforts on trying to generate long term high paying jobs rather than the seasonal minimum wage jobs that typically accompany resort development. Sincerely, Jeff Walton 19955 Poplar St Bend, Or. 97702 1/19/2010 Community Development Department Planning Division Building Division Environmental Health Division is STAFF REPORT TO: FROM: DATE: MEETING: 117 NW Lafayette Bend, Oregon 97701-1925 (541) 388-6575 FAX (541) 385-1764 hftp://www.co.deschutes.or.us\cdd Deschutes County Board of County Commissioners Deschutes County Planning Commission Peter Gutowsky, Principal Planner Nick Lelack, Planning Director July 10, 2009 July 23, 2009 SUBJECT: Destination Resort Remapping / Next Steps The Deschutes County Board of Commissioners (Board) and Planning Commission will convene a work session on July 23, 2009 at the Deschutes Service Center, starting at 5:30 p.m. to discuss the destination resort remapping work program. ISSUE: Shall staff initiate legislative amendments to Deschutes County Code (DCC) later this fall, creating three separate ordinances that define the process and procedures for amending the County's Destination Resort (DR) map, formally add and remove lands from the DR map, and revise certain resort siting criteria. The Board and Planning Commission need to provide direction on the following: A. BOARD AND PLANNING COMMISSION DIRECTION Whether or not to initiate legislative amendments to the DR map. 2. Select or identify a preferred alternative (or as modified by the Board or Planning Commission) for un-mapping unsuitably large destination resort properties. 3. Select or identify a preferred alternative (or as modified by the Board or Planning Commission) for remapping lands for large destination resorts. 4. Initiate a legislative amendment to allow small destination resorts. Three potential ordinances are summarized below and described in more detail starting on Page 4. • Ordinance (1) would define the legislative process for amending the Deschutes County DR map and the review criteria for approving such an action. This ordinance must be adopted before any formal DR remapping proposals can be considered. Destination Resort Remapping Work Session July 23, 2009 -1- • Ordinance (2) would remove unsuitable properties while private parties would be allowed to request that their properties be retained or added to the DR map. This ordinance would be initiated following the adoption of Ordinance (1). • Ordinance (3) would amend DCC, Chapter 18.113, Destination Resort Combining Zone by revising certain siting criteria. This ordinance would follow the same legislative timeline as Ordinance (1) or Ordinance (2). BACKGROUND: On March 3, 2009 the Board directed staff to engage residents, government agencies, and stakeholders to ascertain their opinions about amending the DR map and the type of processes that are available to use. Staff held several community conversations from March to July, using PowerPoint to describe the existing DR map, a map amendment process, and a legislative timeline (Attachment A). During this five month period, staff met with twenty-nine organizations (Attachment B). Opinions spanned the political spectrum (Attachment C). The strongest opinions, voiced at several well attended community meetings in Tumalo and Southern Deschutes County, advocated prohibiting new resorts, removing all un-entitled properties on the current DR map, or requiring stronger mitigation measures to offset their related impacts. Business organizations tended to remain neutral, while members of the Deschutes Farm Bureau and Water for Life underscored their economic benefits. B. DESCHUTES COUNTY DESTINATION RESORT MAP A destination resort chapter was added to the Deschutes County Comprehensive Plan in 1992 at the request of Eagle Crest Resort.' Table 1 lists the mapping criteria used by the County to determine resort eligibility. As demonstrated in Table 1, the County supplemented the state's criteria by excluding certain large agricultural and forest parcels, and resource lands within one Table 1 - Deschutes County Destination Resort Map Criteria (1992) Agency Criteria Excluded Lands • Within 24 air miles of an urban growth boundary (UGB) with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. • On a site with 50 or more contiguous acres of unique or prime farmland identified and mapped by the United States Natural Resources Conservation Service, or its State of predecessor agency. Oregon2 • On a site within 3 miles of a high value crop area unless the resort complies with the requirements of ORS 197.445 (6) in which case the resort may not be closer to a high value crop area than 1/2- mile for each 25 units of overnight lodging or fraction thereof. • On predominantly Cubic Foot Site Class 1 or 2 forestlands as determined by the State Forestry Department, which are not subject to an approved goal exception. • In an especially sensitive big game habitat area as determined by Oregon Department of Fish & Wildlife in July 1984 or as designated in acknowledged comprehensive plan. ' http://www.co.deschutes.or.us/dccode/title23/docs/chapter%2023.84.doc 2 http://www.leq.state.or.us/ors/197.html Destination Resort Remapping Work Session July 23, 2009 -2- E)ce1 76d Lands • All resource (farm and forest) lands within one mile of a UGB. • Irrigated Exclusive Farm Use (EFU) lands greater than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands greater than 60 acres of non-contiguous land in the same ownership. • All Forest Use 1(F-1) zoned property. Deschutes • Wildlife: a) Tumalo & Metolius deer winter range; b) antelope winter range east of County Bend; c) antelope winter range near Millican; d) elk range; e) sage grouse range. Included Lands • Forest Use 2 (F-2), Multiple Use Agriculture (MUA-10), and Rural Residential (RR-10) zones. • Unirrigated EFU lands. • Irrigated EFU lands less than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands with 60 acres or less of non-contiguous land in the same ownership. mile of a UGB. The mapping was done in a phased sequence, based on pending farm and forest studies. Additionally, as a result of a court case, lands within three miles of the county border were also excluded since most of the lands in Jefferson and Crook counties had not yet been evaluated. At that time it could not be demonstrated they contained high value crop areas excluded by Statewide Planning Goal 8 (Goal 8) and Oregon Revised Statutes (ORS). If a property was not excluded from the map by state or county criteria, it was automatically designated on a DR overlay map. The DR map and subsequent regulations enable a resort to be sited on rural lands without having to initiate statewide planning goal exception processes. Today, there are 112,448 acres in Deschutes County mapped for destination resorts. A vast majority are unsuitable for resort development because they are irreversibly committed to platted subdivisions, rural residential development or small lots. Notable statistics include: • 10% of mapped area (10,931 acres) is developed or planned as a destination resort or resort community (Sunriver, Black Butte, Inn of 7th Mountain/Widgi Creek); and, • 54% of mapped area (60,175 acres) contains properties less than 160 acres, including several platted subdivisions. 1. Large Destination Resorts Goal 8 and ORS allow large and small scale destination resorts.3 Large destination resorts must be located on a site of 160 acres or more to establish residential uses and real estate sales. The DCC only permits large destination resorts.4 Table 2 lists the destination resorts in Deschutes County while Table 3 lists those in Crook and Klamath counties. As both tables indicate, since 1992 only large destination resorts have been approved in Central Oregon. 3 http://egov.orecion..qov/LCD/docs/goals/goal8.1)df 4 http://www.co.deschutes.or.us/dccode/titlel8/docs/chapter%2018.113.doc Destination Resort Remapping Work Session July 23, 2009 -3- TABLE 2 - DESTINATION RESORTS IN DESCHUTES COUNTY Resort Date Approved # Acres Eagle Crest I, II, III `981, 1993, 2001 1,772 Pronghorn 2001 640 Tetherow 2004 706 Caldera S rin s 2005 390 Thornburgh Pending 1,970 Total 5,478 TABLE 3 - DESTINATION RESORTS IN DESCHUTES COUNTY Resort Date Approved # Acres Running Y Ranch Klamath 1996= 3,520 Brasada Crook 2004 1,800 Remington Ranch Crook 2007 2,000 Hidden Can on Crook 2007 3,600 Crossing Trails Crook. Pending 586 Total 11,506 2. Small Scale Destination Resorts The DCC does not allow small scale resorts. Small resorts must be located on a site of twenty (20) acres or more, but residential uses are limited to those necessary for the staff and management of the resort. Therefore, real estate is not permitted. Direction: Staff seeks direction on whether this work program should include amending the DCC to allow small destination resorts. Please note that staff has not engaged the public on this particular issue. C. PURPOSE OF REVISING DESTINATION RESORT MAP Originally, an acknowledged DR map could only be amended during a state periodic review process. In 2003, that changed when the Oregon Legislature amended ORS exempting counties from periodic review. New language was added allowing counties to remap, not more frequently than once every thirty (30) months.s Remapping is now dependent on creating a process for collecting and processing all DR map amendments made within a thirty (30) month planning period. D. REMAPPING ALTERNATIVES The following section provides several different alternatives for the Board and Planning Commission to consider for amending Deschutes County's DR map. Any of these alternatives or others like them would be encompassed in Ordinance (1) and then upon adoption, applicants would initiate formal DR map amendment requests, that if approved by the Board, would ultimately be codified in Ordinance (2). Figure 1 illustrates the interrelationship between Ordinances (1) and (2) that ultimately create a new County DR map. 5 See note 2. ORS 197.455(2) Destination Resort Remapping Work Session July 23, 2009 -4- Figure 1 - Destination Resort Remapping Process Ordinance (1) - Map Amendment Process & Criteria • Specifies DR map can only be amended every 30 months • Describes the legislative process for applicants to formally initiate a DR map amendment request • Establishes a fixed time period for submitting a DR remapping request • Describes the criteria for County to review and approve DR map changes 1. Removing Unsuitable Properties f Ordinance (2) - Formal Request to Amend Destination Resort Map • Upon adoption of Ordinance (1), County initiates process for DR map requests • County is one of the applicants, requesting removal of unsuitable lands from the existing resort map based on criteria identified in Ordinance (1) • PC & Board hold hearings • Board adopts Ordinance (2), establishing a new DR map Table 4 lists three potential approaches to removing unsuitable properties from the County's DR map. Staff will refine the preferred approach once the Board provides direction, with input from the Planning Commission. Table 4 - Un-mapping Unsuitable Large Destination Resort Properties Alternatives Un-mapping Criteria Result • Remove all properties with the exception of • 10,931 acres entitled destination resorts. committed to Alternative • Use tax mailer to notify affected properties destination resorts or A giving owners the opportunity to request resort communities; maintaining their designation either with or with • 90% reduction from meeting specified criteria. existing ma • All individually owned properties less than 160- acres. • All platted subdivisions. • All public lands. 15,058 eligible Alternative • High priority deer migration area. acres; B • Resource lands within 1-mile of a UGB. 87% reduction from • All lands within Redmond's Urban Reserve existing DR map Area. • Use tax mailer to notify affected properties giving owners the opportunity to request maintaining their designation. Same as Alternative B, but excluding: • All individually owned properties less than 160- acres. 47,631 eligible Alternative Adding: acres; C • All individually owned contiguous properties 58% reduction from less than 160-acres. existing DR map • Use tax mailer to notify affected properties giving owners the opportunity to request maintaining their designation. Destination Resort Remapping Work Session July 23, 2009 -5- 2. Adding Suitable Lands for Large Destination Resorts Any remapping requests to add land to the County's DR map must be based on specific approval criteria that are identified in an adopted ordinance (Ordinance (1)). Before examining different alternatives for adding lands to the County's DR map, it is important to reexamine the County's Destination Resort Combining Zone, DCC 18.113 to understand the burden of proof placed on an applicant seeking conceptual master plan (CMP) approval. Table 5 lists some of those CMP requirements, including the consultants that must be retained to provide an adequate factual base. A complete overview of DCC 18.113 is provided in Attachment D. Table 5 - Destination Resort Combining Zone Burden of Proof 6 Consultants Requirements • Findings of fact. • Open space deed restrictions. • Use of public facilities and amenities on site. • Proposed order of phasing and timing. • Method for providing emergency medical services and facilities and public safety services and facilities (fire / police). • Wildfire prevention, control and evacuation plans. • Interim development including temporary structures related to sales and development. • Owners' associations and related transition of responsibilities and transfer of property. • Methods of ensuring that all facilities and common areas within each Land use law phase will be established and will be maintained in perpetuity. attorney • Survey of housing availability for employees based upon income level and commuting distance. • Description of the system to be used for the management of any individually owned units that will be used for overnight lodging and how it will be implemented. • Development will not create the potential for natural hazards identified in the County Comprehensive Plan. • Adequate public safety protection will be available through existing fire districts or will be provided onsite according to the specification of the state fire marshal. • Resort will mitigate any demands it creates on publicly-owned recreational facilities on public lands in the surrounding area. • Adequate open space, facility maintenance and police and fire protection shall be ensured in perpetuity in a manner acceptable to the County. • Resource protection plan. Wildlife • Open space management plan. biologist • Natural resources inventory. • Management prescriptions. 6 See note 4 above. Destination Resort Remapping Work Session July 23, 2009 -6- Table 5 - Destination Resort Combining Zone Burden of Proof 6 Consultants Requirements • Negative impact on fish and wildlife resources will be completely mitigated so that there is no net loss or net degradation of the resource. • Important natural features will be maintained. • Traffic Study. Traffic • Destination resort developments that significantly affect a transportation engineer facility shall assure that the development is consistent with the identified function, capacity and level of service of the facility. • Description of method of providing all utility systems, including the location and sizing. • Water conservation plan. • Wastewater disposal plan. • The wastewater disposal plan includes beneficial use to the maximum Civil extent practicable. engineer • Sewage disposal methods. • Erosion control plan. • Solid waste management plan. • Resort will be served by an on-site sewage system approved by DEQ and a waters stem approved b the Oregon State Health Division. • Availability of water for estimated demands at the destination resort. Water law attorney • Adequate water available for all proposed uses at the destination resort, based upon the water stud and a proposed water conservation plan. • Estimate water demands for the destination resort at maximum build-out. • Identification of the proposed sources. • Identification of all available information on ground and surface waters relevant to the determination of adequacy of water supply for the Hydrologist destination resort. • Identification of the area that may be measurably impacted by the water used by the destination resort (water impact area) and an analysis supporting the delineation of the impact area. • Statistical) valid sampling of domestic and other wells within impact area. • Site designed to avoid or minimize adverse effects on adjoining property. • Development will not force a significant change in accepted farm or forest Agricultural practices or significantly increase the cost of accepted farm or forest specialist practices on surrounding lands devoted to farm or forest use. • Site improvements will be located and designed to avoid or minimize adverse effects of the resort on the surrounding land uses. • Analysis addressing the economic viability of the proposed development. • Fiscal impacts of the project including changes in employment, increased Economist tax revenue, demands for new or increased levels of public services, housing for employees and the effects of loss of resource lands during the life of the project. • Necessary financial resources are available for the applicant to undertake DCC 18.113.070(0). Except where connection to an existing public sewer or water system is allowed by the County Comprehensive Plan Destination Resort Remapping Work Session July 23, 2009 -7- Table 5 - Destination Resort Combining Zone Burden of Proof 6 Consultants Requirements the development consistent with minimum investment requirements. • Appropriate assurance has been submitted by lending institutions or other financial entities that the developer has or can reasonably obtain adequate financial support for the proposal once approved. • Resort will provide a substantial financial contribution which positively benefits the local economy throughout the life of the entire project considering changes in employment, demands for new or increased levels of public service, housing for employees and the effects of loss of resource land. • Natural amenities of site considered together with identified developed recreation facilities to be provided with the resort, will constitute a primary attraction to visitors, based on economic feasibility analysis. Architect I . Illustrations and graphics to scale. Landscape Architect Design guidelines. Three remapping alternatives are provided in Table 6. Each one is based on clear and objective criteria. The reasons for promoting this type of an approach are three fold: • As demonstrated in Table 5 and Attachment D, applicants' seeking CMP approval for a resort incur substantial costs to hire the necessary consultants to satisfy the burden of proof stipulated in the Destination Resort Combining Zone, DCC 18.113. Reason (1): Staff does not believe it is necessary to duplicate the rigorous findings required for siting a resort at the DR remapping stage. The land use process for obtaining the entitlements to establish a destination resort can face significant community opposition or be delayed by appeals and litigation. Crook County repealed its destination resort map in October 2008, in response to an advisory vote approved by voters in May 2008. Alternatively, the Thornburgh Resort CMP, originally approved by the Board in May 2006, faces its ninth appeal as it is now up for review by the Oregon Supreme Court. The final master plan is also on appeal. Reason (2): Staff does not believe it is necessary to apply discretionary criteria for DR remapping requests that can be subject to different interpretations and therefore litigation. Destination resorts will likely remain controversial in Deschutes County. Anyone applying for a DR map amendment recognizes that community concerns and the possibility of legal challenges are distinct possibilities if and when a resort is formally proposed. • Recent case law now requires any new destination resort to construct the first 50 overnight lodging accommodations prior to the sale of any residential lots.8 This requirement, coupled with other statutory obligations dealing with recreational 8 DCC 18.113.060(A(1)(a) was amended in 2007 based on a decision by the Oregon Court of Appeals in Annuziata Gould v. Deschutes County and Thornburgh Resort. Destination Resort Remapping Work Session July 23, 2009 -8- amenities and public facilities, may create significant financial impediments for siting future destination resorts in Deschutes County. Reason (3): Staff does not believe it is necessary to further encumber the DR remapping process. Applicants interested in siting a destination resort already face substantial challenges, from first obtaining the necessary land use entitlements to constructing associated infrastructure, ranging from recreational amenities, overnight lodging, water and wastewater facilities, and transportation improvements. Table 6 - Remapping Criteria for Large Destination Resorts Alternatives Criteria Alternative 1 Ineligible Lands • Within 24 air miles of a UGB with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. • On a site with 50 or more contiguous acres of unique or prime 1II farmland identified and mapped by the United States Natural Resources Conservation Service, or its predecessor agency. U • On a site within three miles of a high value crop area unless the o resort complies with the requirements of ORS 197.445 (6) in which case the resort may not be closer to a high value crop area than B 1/2 mile for each 25 units of overnight lodging or fraction thereof. • On predominantly Cubic Foot Site Class 1 or 2 forestlands as determined by the State Forestry Department, which are not subject to an approved goal exception. • In an especially sensitive big game habitat area as determined by ODFW in July 1984 or designated in an acknowledged Comp Plan. • All resource lands within one mile of a UGB. • All public lands. • All lands within an Urban Reserve Area. • Irrigated EFU lands greater than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands greater than 60 acres of non-contiguous land in the same ownership. • All F-1 zoned property. L Wildlife: a) Tumalo deer winter range; b) Metolius deer range; c) U antelope winter range east of Bend; d) antelope winter range near Millican; e) elk range; f) sage grouse range; g) Deer migration 0 _J priority wildlife migration area. Eligible Lands • F-2, MUA-10, and RR-10 zones. • Unirrigated EFU lands. • Irrigated EFU lands less than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands with 60 acres or less of non-contiguous land in the same ownership. Destination Resort Remapping Work Session July 23, 2009 -9- Table 6 - Remapping Criteria for Large Destination Resorts Alternatives Criteria Parcel Size F • Minimum of 160 acres under one or multiple owners in one DR remapping request. Transportation Analysis • Require a "macro-level" transportation analysis that examines the rezoned property and the impact to major transportation facilities if build-out occurs during a twenty year period. It alerts applicant, community, and agencies of potential impacts to county or state transportation facilities and the mitigation measures that will likely be required if and when a destination resort is formally proposed. M Ineligible Lands ~j Same as Alternative 1, but excluding: • Irrigated Exclusive Farm Use (EFU) lands greater than 40 acres of `0 ~ contiguous irrigation under one ownershi p• 06 • Irrigated EFU lands greater than 60 acres of non-contiguous land in the same ownership. O J Alternative 2 Eligible Lands • Same as Alternative 1, with the following additions: • All irrigated EFU land. ~j Parcel Size • Minimum of 160 acres under one or multiple owners in one DR remapping request. Transportation Analysis • Same as Alternative 1. Ineligible Lands a~ U B • Variations of Alternative 1 and 2. U) ~o U Alternative 3 O J Eligible Lands • Variations of Alternative 1 and 2. Parcel Size U Minimum of 350 acres under one or multiple owners in one DR M remapping request. Transportation Analysis • Same as Alternative 1. Destination Resort Remapping Work Session July 23, 2009 -10- E. REVISING LARGE DESTINATION RESORT SITING CRITERIA 1. Water Management Plan The Deschutes Basin Board of Control, an intergovernmental unit composed of seven irrigation districts, recommended during the Community Conversations that the Board and Planning Commission consider amending the Destination Resort Combining Zone to add a new siting criterion. The new criterion would require an applicant proposing a destination resort to obtain a Water Management Plan (WMP) from an irrigation district, as part of an application if surplus irrigation water (surface water right) is being transferred to meet groundwater mitigation credits. A WMP is a contract between the resort developer and the affected irrigation district, addressing among other things: water distribution, timing of water need, access easements, water holdings, and drainage and tail water. The purpose of requiring a WMP as an integral criterion is to diffuse the ongoing controversy associated with water availability for a destination resort. It will demonstrate to the various constituents, organizations, and local officials that water supply is being adequately addressed at the front end of the land use process, thereby minimizing misunderstandings during a forthcoming public hearing. 2. Others Many residents expressed an interest in modifying other destination resort requirements. The following list summarizes other potential criteria that could be integrated into the Destination Resort Combining Zone, DCC 18.113. • Provision for work force housing • Conversion of cluster development • Provision of fire fighting facilities and services • Independent review of wildlife plans and inventories • Mitigation for impacts on cities 3. Timeline If supported by the Planning Commission and the Board, text amendments to the Destination Resort Combining Zone would be embodied in Ordinance (3) and be processed concurrently with either Ordinances (1) or (2). F. REMAPPING TIMELINE Table 7 provides a timeline for initiating Ordinances (1), (2), and (3) and the opportunities for public involvement. Destination Resort Remapping Work Session July 23, 2009 -11- Table 7 - Remapping Timeline Ordinance Content Public Outreach • Specifies DR map can only be amended • Initiate DLCD 45-Day Notice once every 30 months in September for Ordinance • Describes the legislative process for (1) applicants to formally initiate a DR map • Reengage organizations Ordinance amendment from Spring / Summer 2009 (1) • Establishes a fixed time period for Community Conversations submitting a DR remapping request in the fall • Describes the criteria to review and • First evidentiary hearing approve DR map changes with the Planning Commission in November 2009 • County's unmapping proposal available for Fall • Upon adoption of Ordinance (1), County 2009 Community initiates formal process for to amend DR Conversations map . Use tax mailer to notify • County is one of the applicants, affected properties being Ordinance requesting removal of unsuitable lands considered for unmapping (2) from the existing DR map based on and opportunities to criteria identified in Ordinance (1) comment • Opportunities for private property owners . Initiate DLCD 45-Day Notice to request adding their property or in January for Ordinance (2) keeping it on the DR map • First evidentiary hearing with the Planning Commission in March 2010 Revises destination resort siting criteria • Initiate DLCD 45-Day Notice , such as: in September for Ordinance • Requires an applicant proposing a (3) the same time as Ordinances (1) or (2). destination resort to obtain a WMP from Ordinance an irrigation district, as part of an • Reengage organizations (3) application if surplus irrigation water from Spring / Summer 2009 (surface water right) is being transferred Community Conversations to meet groundwater mitigation credits in the fall • First evidentiary hearing in November 2009 or concurrently with Ordinance 2 in March 2010 Attachments: A. Community Conversation Remapping PowerPoint Presentation B. Community Conversation Gantt Chart C. Community Input Summary D. Destination Resort Combining Zone Summary Destination Resort Remapping Work Session July 23, 2009 -12- c ~ ~I D i GUl-Q IL ! t a4t- d ~~o G -14 b I ; , c Cthr) 60 -.E C o ~ t ~L ~ An ' .'I / s4i - 3gz- iregoit john A. Kitzhaber, M.D., Govemor 9 January 1998 Def ment of Fish and Wildlife High Desert Regional Office 61374 Parrell Road Bend, OR 97702 (541) 388-6363 FAX (541) 388-6281 E-mail: odfw.bend®bendnet.com Sally Collins oaEGON Forest Supervisor Deschutes National Forest r4i 1645 Highway 20 East Bend, OR 97701 RE: USDA Forest Service/Crown Pacific Limited Partnership Land Exchange Project on the Deschutes, Fremont, and Winema National Forests Thank you for providing the Oregon Department of Fish and Wildlife the opportunity to review and comment on the USDA Forest Service(FS)/Crown Pacific Limited Partnership Land Exchange Proposal (DEIS). As the state agency responsible for the conservation, protection, and management of Oregonts fish and wildlife for the use and enjoyment by current and future generations, we offer the following comments. We are concerned about 1) Loss of Late and Old Structure (LOS) ponderosa pine habitat. The loss of both 14.8% of the remaining LOS ponderosa pine habitat on the Deschutes National Forest (DNF) and the connectivity of the Sellers and Toast subwatershed parcels is significant. The Department feels that the DEIS does not provide adequate analysis on impacts to the viability of LOS dependent wildlife species from the loss of LOS ponderosa pine habitat We recommend the FS modify the exchange plan to result in no net loss of LOS ponderosa pine habitat and connectivity function. 2) Loss of big game habitat values in the Bull and Dorranae subwatersheds through private timber practices or_residential development. FS panels in the Bull subwatershed provide mule deer hiding and thermal cover and high quality forage, particularly during severe winters. FS parcels in the Dorrance subwatershed provide mule deer fawning, migration, summer range, elk calving and year round habitat. Both areas provide key wildlife habitat values due to loss of similar habitat through past land use zoning and management practices. We recommend the FS modify the exchange plan to result in no loss of big game habitat values in the Bull and Dorrance subwatersheds. 3) Increase in road densities resulting in loss of mule deer habitat, loss of mule deer through poaching, reduced mule deer escapement and survival, reduced habitat effectiveness, increased forest fragmentation, and ultimately reduced recreational use. To mitigate impacts caused by high road densities we recommend Crown Pacific effectively reduce road densities to the Land Resource Management Plan (LRMP) target level of 2.5 - Land Exchange - ODFW"- Comments Page 2 miles per section before the trade or for the FS to increase their road reduction budget b the amount necessary to effectively reduce road densities to their LRMP standard immediately after acquisition of the property. 4) Loss of wildlife habitat in general due to less vegetative vertical structure, snags, and down woody material on Crown Pacific lands, along with more habitat fragmentation caused by roading. General wildlife habitat values - particularly a mix of tree sizes, snags, down wood, and less forest fragmentation - in the Bull, Dorrance, Toast, and Sellers subwatersheds appears to be of higher quality than on Crown Pacific parcels proposed for exchange. We recommend the FS reassess the wildlife habitat values (DEIS 3-WL-5 p. 50 and 3-WL 6 q 53) of the exchange lands particularly the large tree and snap components. and disclose the resultant tradeoffs. We agree with the FS and Crown Pacific that a land exchange to block up isolated parcels is a logical course of action to meet administrative and biological goals and objectives. However, in review of the DEIS, it appears that public land proposed to be traded - particularly parcels in the Bull, Dorrance, Toast, and Sellers subwatersheds provide key ecological functions for resident wildlife. Without these key parcels implementation of ecosystem management on the DNF will be lessened. Given past forest practices and land use decisions, key functional LOS and mule deer habitat has been significantly reduced. Due to marginalization of these key habitats, we question whether the FS proposed action is in the best interest of Oregon's wildlife resources. Following is our rationale. 1) Loss of Late and Old Structure. The Department is concerned with an additional reduction of LOS habitat in the ponderosa pine plant associations on the DNF. According to a 1993 report to Congress' the DNF retains 3 to 5 percent of ponderosa pine forest in a late successional condition. This situation is typical throughout most of the range of ponderosa pine in the intermountain west and was the impetus for FS Regional direction, enactment of the Eastside Screens, and proposed guidelines in the Interior Columbia Basin Ecosystem Management Plan for retention of late seral ponderosa pine. If only 536 of the 453,000 acres of productive ponderosa pine on the DNF (LRMP Final Environmental Impact Statement 3-32) remains, then we estimate no more than 22,650 acres. of LOS ponderosa pine habitat still exists (using Hopkins definition210-13 trees per acre (tpa) versus 7 tpa as used in the DEIS). Within the proposed exchange lands in the Sellers and Toast watershed there has been identified 3,357 acres of LOS habitat to be traded, or about 14.83'0 of the remaining LOS habitat on the DNF. This LOS habitat provides a connective corridor of ponderosa pine through stands of lodgepole pine. It links adjacent stands of late seral ponderosa pine to the east and west of Henjum, Mark et al. Interim Protection for Late-Successinal Forests, Fisheries, and Watershed - National Forest East of the Cascade Crest, Oregon and Washington - A Report to the United States Congress and the President - Executive Summary September 1993 - Eastside Forests Scientific Society Panel. 2 Hopkins, B. et al. Region 6 interim Old Growth Definition for Ponderosa Pine Series June 1992 Land Exchange - ODFW Comments Page 3 the exchange area. We agree with the Land Exchange DEIS (page 51) that the loss of LOS habitat in these two subwatersheds is "expected to reduce habitat connectivity, reduce the ability of LOS habitat species to move across the landscape, and provide fewer areas for young to disperse. LOS associated species are not expected to occupy these portions of the project areas." We believe this to be an unacceptable consequence of this exchange. The loss of both 14.8% of the remaining LOS habitat and the connectivity of the Seller's and Toast parcels is significant. The Department feels that the DEIS does not provide adequate analysis on impacts to the viability of dependent wildlife species from the loss of LOS ponderosa pine habitat. We recommend the FS modify the exchange plan to result in no net loss of LOS habitat and connectivity function. 2) Loss of Mule Deer Habitat. WINTER RANGE: FS land in the Bull subwatershed is very important to wintering mule deer, particularly during severe winters since it is some of the lowest elevation land that remains within the Tumalo Winter Range. It provides high quality hiding and thermal cover as well as forage. During periods of deep snow, deer are forced into these low elevation areas for survival. Through a seasonal road closure program entered into with the FS and Crown Pacific this area minimizes harassment to wintering mule deer which is critical due to the areas proximity to Bend. Trading or selling this land to a private party could result in the loss of these habitat values. Private timber management practices and especially residential development would reduce the integrity of the area's high quality mule deer habitat. The end result is likely a reduced deer population below the current management objective of 2,500 mule deer as recorded in the DNF Plan. This in turn would reduce recreational opportunity and County revenue. The State Forest Practices Act, which Crown Pacific operates under, does not provide standards for elk or mule deer habitat protection. MULE DEER FAMING/MIGRATION CORRIDOR & ELK CALVING: Through the interface of mature lodgepole pine, weband, and water, Dorrance subwatershed provides high quality mule deer fawning habitat, summer range, and a public lands corridor for mule deer migration. It also provides high quality habitat for elk calving and year round use. Due to subdivisions in the LaPine area and along the Little Deschutes River, much of these wildlife habitat values have been lost. Trading or selling this area could lead to management practices that may reduce mule deer and elk habitat values. Based on our concerns, we recommend the FS modify the exchange plan to result in no loss of big game habitat values in the Bull and Dorrance subwatersheds. 3) Increase in Road Densities. ODFW opposes increasing road densities on any of the three Forests. Increased road densities result in loss of mule deer habitat, loss of mule deer through poaching, reduced mule deer escapement and survival, reduced habitat effectiveness, increased forest fragmentation, and ultimately reduced recreational use. The DNF and Fremont Forest Plans call for open road densities of 2.5 miles or less per section, Land Exchange - ODFW Comments Page 4 while the Winema Plan calls for open road densities to be no greater than 1990 levels. The common theme behind these standards is to minimize harassment to mule deer and other wildlife. In the past, the DNF has struggled with their target of 2.5 miles per section. This is primarily due to wildfire response concerns, timber management objectives and recreational access demands. These road closure concerns seem to dominate even though reduced mileage is more cost effective with less roads to maintain, reduced chance for human caused fire ignitions and spread of invasive and noxious weeds, provides for more productive acres, is more hydrologically connected, and is much friendlier to wildlife. We su ort efforts that reduce Forest road densities to the target level of 2.5 miles or less per section on summer/transition range and 1 mile or less on winter range during the critical period from -December 1st through March 31st. To mitigate impacts caused by high road densities, we recommend Crown Pacific effectively reduce road densities to the LRMP target level of 2.5 miles per section before the trade or for the FS to increase their road reduction budget by the amount necessary to effectively reduce road densities to their LRMP standards immediate) after acquisition of the Property- 4) Loss .of Wildlife Habitat in General. We anticipate that wildlife habitat values will be reduced as a result of this land exchange. Our observations indicate there is less horizontal and vertical structure on Crown Pacific lands - in particular snags and down wood, increased road densities, more forest fragmentation, and less productive forest ecosystems due to past private timber management practices governed under the. Forest Practices Act. As summarized in our September 1996 report, the issues identified included: * Sensitive, Threatened and Endangered species * Management Indicator species (MIS) and focal species including MIS for each Forest and at least the Great Gray Owl * No loss of riparian areas with emphasis to obtain new riparian habitat * Connectivity for Late Successional Old Growth (LSOG) related and dependent species. * Connectiwty for big game species (travel corridors). * Include within connectivity stands both live and dead structural stages for different Plant Association Groups (PAGs) * Maintain interior habitats for LSOG related and dependent species for each PAG. * Retain or obtain Special and Unique Habitats. Focus on moist1wet lodgepole pine, aspen stands, talus slopes, lava ridges, caves, etc. * Review agreement with Tribes on the Winema for mule deer values. Use mule deer model for analysis. * Analyze open road densities. * Analyze big game winter range. * Analyze eastside screens, eastside EIS...are we consistent?. " Coordination with other agencies, i.e., ODFW USFWS. * Retain public land access. General Observations FS lands proposed for trade have diverse horizontal and vertical structure Cncluding snags and down logs) providing for a host of wildlife functions. Nesting, roosting, foraging, fawning, calving, wintering, connectivity, interior forest, and perceived lower road densities and lower soil compaction than on Crown land. Public lands provide for a greater range of generalist and specialist wildlife species. Much of this structural diversity is due to the environmental regulations passed through Congress over the past 30+ years. 'Land Exchange - ODFW Comments Page 5 Crown lands proposed for trade have had more manipulation, have more roads, probably more soil compaction, less vertical and horizontal structure (including lack of snags and down logs), have had overstory removed, have younger forest age classes, and more soil disturbance. Crown lands primarily provide for generalist wildlife species including those that use earty seral stages and habitat edge. Mule deer are an economically important species associated with Crown lands. Crown lands are governed under the Forest Practices Act which designates environmental protection on private forest lands." (ODFW letter to Ecological Services 9 September 1996 - cc: M. Gerdes, T. Young). As a result of our observations, we recommend the FS reassess the wildlife habitat values (DEIS 3-WL 5 p 50 and 3-WL-6 p 53) of the exchange lands particularly the large tree and snag components and disclose the resultant tradeoffs. Overall, we acknowledge that the FS is in the unenviable position of making some tough decisions that will affect how they manage their forests in the future. These decisions will determine how effective they can be at maintaining species viability and haw they can provide for future needs. However, ODFW has a number of concerns with these proposed decisions. The loss of remnant parcels of LOS ponderosa pine that also function as an LOS connectivity corridor is a key concern. Loss of critical mule deer winter range, loss of quality big game habitat along the Little Deschutes River, and increased road densities are additional concerns. While the loss of wildlife habitat integrity, in particular the large tree and snag components, is also a concern. Your staff has assured us that they have many of the same concerns we do. This makes us hopeful that adequate analysis and visioning takes place to insure that decisions made will not lessen existing ecological or social benefits now or into the future. We look forward to supporting a modified exchange plan that addresses these discussed wildlife resource concerns. Thank you for providing us the opportunity to comment. We would like an opportunity to discuss our concerns with you and your staff further. Sincerely, Allan R. Polenz High Desert Regional Supervisor cc: Ted Young - Crown Pacific urmnmauOII v6 naonai "ss rage 1 Vl 4 Urbanization VS Habitat Loss By Richard L. VandeHip 03-15-98 Introduction: Virtually everyday somewhere in the world there is a conflict between wildlife and humans. Every September in Banff, a popular tourist town in Canada, the elk congregate to carry on the annual rut or mating season. During this period people, wanting a Kodak@ moment, approach to close to the elk and in a moment's instant they usually end up injured. These conflicts often lead to fatal injuries. Here in the United States these conflicts are becoming almost commonplace. Recently, near Redmond Washington, a female bear ravaged garbage cans in a populated neighborhood. California has been dealing with the problem of cougars attacking humans while, Colorado has been contending with coyotes homesteading the runways of Denver International Airport. This is only the tip of an iceberg size problem. UrbaniXatidn and development is the primary cause of these conflicts becoming an almost everyday occurrence. As wildlife loses habitat to parking lots and concrete jungles they have to find food and shelter. Their only options are to move in amongst their nemeses - or die. Literature Review: In researching the information for this project I exclusively used online sources. However, the elk herd plans for the State of Washington were acquired by ordering them online and the Department of Wildlife then mailed them to me. Proquest, a periodical database accessible through Centralia College, proved very useful in acquiring information. The first piece of literature I found is a bibliography published by Greta de Groat. The bibliography titled 'Population And The Environment' contains a variety of literature works as well as somevideos. Grefa includes her opinions as well as a review of the literature she cites in the bibliography. I should add that I did not use any of the works she listed but I think the bibliography would be a valuable asset for further study. The Elk Herd Plans, specifically the Yakima Herd, is a comprehensive study that outlines many aspects of urbanization versus animal habitats. The plan begins by outlining the boundaries that make up the herds territory, the ownership of the land within these boundaries and the topography of the land the elk ranges on. The distribution of the elk today is compared to the historic distribution of the elk and then the plan outlines a proposed distribution for the elk in the future. The history of the elk herd, annual mortality, herd composition, social economic values and proposed habitat management are all discussed in depth. The plan outlines many of the Department of Wildlife's objectives to be met in managing the elk herd and the strategies they plan to use to meet their objectives. There is also an assortment of tables and graphs depicting such information as bull to cow ratios and elk harvests from hunting. All in all, the drafts are very informative reading. Barbara Whitaker (Struggle for habitat increasing between humans and wildlife) vividly describes the conflict between humans and animals as they compete for habitat in Philadelphia. The conflicts range from bears ravaging fruit trees to deer foraging on decorative shrubbery. The struggle between managing resources wisely and in balance is portrayed against the Bambi syndrome. http://Iandru.i-link-2.nethvanderlipAiabitat losshtW 1/24/03 Urbanization VS Habitat Loss Page 2 of 4 Jim Sulski (Fighting with the Neighbors; Humans and Wildlife Going Nose - To - Snout in the Battle Over Territory) vividly describes the problems encountered when urbanization displaces normal animal habitats. The author shows that some of the animals are acclimating themselves to live in the urban areas but humans are showing a negative reaction to the encounters- Hal Clifford (Development puts squeeze on elk) illustrates the problems encountered when people develop valleys that are traditional wintering ranges for elk. The author shows that developments push elk away and crowd them into smaller areas where they suffer from lack of food. The displaced elk then compete with other species and being larger and stronger often win at the expense of such species as mule deer. Discussion: Urbanization, development, overpopulation - these are environmental concerns that should be watched closely as we head into the millenium. Unfortunately, as Greta de Groat of Lacey, WA pointed out in a bibliography on population and the environment, overpopulation is an uneasy topic. Population control is an issue that attacks the very core of our ideas on personal freedom and in many countries attacks the cultures religious ideals. Since, overpopulation tends to be a controversial issue most publications avoid it and instead attack things like global warming and the reintroduction of wolves to Yellowstone. Still, it is an issue that needs attention. Tom Brown, Western Washington's Field Coordinator for the Department of Fish and Game Hunter Safety Program, recently told a class of future instructors that habitat was being lost at a rate the size of Spokane annually. Clearly, this rate of development can not be sustained without obvious ramifications. Specifically, the ramifications would be habitat loss and the eventual extinction of many wildlife species. Many species are already suffering as their natural patterns are interrupted by civilization. For instance, the Yakima elk herd congregates at the Oak Creek Game Range where they are fed each winter like a herd of cattle. Game fences prevent the migrating elk from reaching their customary wintering grounds. The farmlands and orchards around Yakima are the traditional wintering ranges for these elk and unfortunately are no longer welcome by the new tenants of the land. So, their migration is truncated and if not for the efforts at the game range many of these animals would perish from starvation. However, this mass congregation and the system of feeding the elk, makes the elk susceptible to contracting and rapidly spreading disease. This project is also a costly one and is not funded by those who it protects nor is the funding guaranteed. So, The Department of Fish and wildlife has put together a plan, still in draft form, that calls for the increase in population of those elk that live on public and private lands while decreasing the numbers of those that live in areas close to human settlements (Department of Fish and Wildlife, 1997). This plan comes as the answer to reduce and/or eliminate elk/human conflicts. However, most of the elk that forage in this area migrate here only during the winter. So, decreasing their numbers means to decrease the numbers of elk that live elsewhere as well. The moral dilemma is that for thousands of years elk inhabited this area and now, for the sake of development, we feel we must evict them. This may seem to answer the immediate problems but what are the long-term effects? Washington is not the only state facing problems like this. Colorado's elk population, the largest in North America, faces an ever-expanding human population. The population of Colorado expanded 13.7 percent between 1990 and 1995. To illustrate, that is more people than the entire population of Wyoming. Every year during the 1990's approximately 90,000 acres of undeveloped land become homesites. Many of these homesites were built on prime elk habitat. "One house on every 35 acres can have a major impact on the ability of elk to migrate, on bears to have normal feeding patterns, on all our songbirds," Todd Malmsbury of the Colorado Department of Wildlife said. "Just driving to your house, having a driveway, utility lines, the pets, all can have a very subtle and a very devastating effect on the ability of animals to feed, to http://IandnLi-link-2.net/rvanderlip/habitat_loss.html 1/24/03 Urbanization VS Habitat Loss rage.) ox migrate and to have their young" (Clifford, 1997). Humans continue to expand their cities outward and as they do they competitively exclude the other animal species. The competitive exclusion principle states that no two species of life can inhabit the same niche indefinitely- Sooner or later one species will prove to be more dominate then the other and will increase in population while the other decreases; eventually to its complete exclusion from the niche. This is what is happening as human population expands. To further complicate things many people don't want animals living in close proximity to them. Kimberly Dickens, Orland Park Environmental Health Director, recalls a call from a frantic resident who called to report a squirrel sitting in a tree outside his window. He went on further to tell her to come and get the squirrel he didn't want it around. "Many people simply don't want animals around them," explains Kimberly Dickens. "They're very distraught when they see wildlife around their home. But with all the development that has been taking place, many of these little creatures just have nowhere to go. Most experts agree that development is the cause of most animal/human conflicts and as developers tear up the forests to build shopping malls, offices or parking lots thousands of animals lose their homes (Sulski, 1993). However, the competitive exclusion principle doesn't always go in our favor. Animals are learning to adapt to civilization and are becoming quite competitive in the attempt to protect territory. Ms. Buflano of Stillwater Township, NJ says of a bear that strips her trees of their fruit, "We've learned to live with it" (Whitaker, 1995). The cougar attacks in California. are a good example of animals conquering humankind and in the small rural towns of America domestic pets pecome a food source to the wildlife that is being displaced. Yet, even though ultimately the responsibility for the conflicts is ours we continue to blame the wildlife. They are just trying to survive the only way they know how. Humans have brought many species to the brink of extinction. There are some cases, such as the Merriam Elk, where we have actually succeeded. Fortunately, thanks to the Endangered Species Act, many previously endangered animals have made a comeback and are now list as being only threatened. There are even cases of animals being re-introduced to areas where their presence has been only a ghostly shadow for a very long time. Grizzlies in the Selkirks, wolves in Yellowstone, even the elk in Yakima - all of these animals were almost or completely eradicated from the areas they now inhabit. Unfortunately, there are those who would be just as glad to see them once again gone. Conclusion: Civilized - that is how we describe the species known as humans. How civilized are we when we not only war with each other over land but we also attempt to eradicate all other forms of life from sharing the earth? Is it biological and we are merely following the principle of competitive exclusion - attempting to ensure our own survival? One thing is for sure, science has shown that all the trophic levels are intertwined and interdependent on the other- To eliminate wildlife is to ultimately eliminate us. Those of a spiritual background know that the Creator made us stewards of the land not to abuse but to conserve and use wisely. Those of a scientific background know that we as a highly evolved species need to take the initiative to let nature do as nature sees frt. Development can not completely cease and desist. However, development needs to be done so as to be harmonious with the needs of nature. Providing sufficient greenbelts so that wildlife can live unaffected. Incorporate our develQpments around wetlands . so as not to disturb the delicate ecosystem. Preserve the key areas of habitat that now exist not destroy them and where possible create new areas. Finally, use what we have now to the fullest of capacity so as to reduce the need for expansion. Works Cited http://Iandru.i-link-2.net/rvanderlipthaNtat loss.hbW 1/24/03 uroanizanon V;5 H11011a1 LOSS Groat, G. "Population and the Environment: A Bibliography." 16 Aug. 1995. <http'//www lib uidaho edu:70/docs/egi02/groat01.html>(8 Jan. 1998). Clifford, H_ (1997, October 4). Development puts squeeze on elk. Denver Post. 87 Whitaker, B. (1995, September 2). Struggle for habitat increasing between humans and wildlife. Dallas Morning News, A43 Sulski, J_ (1993, September 26). Fighting With the Neighbors: Humans and Wildlife Going Nose to Snout In The Battle Over Territory. Chicago Tribune, 1 McKeel, R., Musser, J. & McCall, T. (1997). DRAFT: Yakima Elk Herd Plan Washington Department of Fish and Wildlife http://Iandru.i-link-2.net/rvanderlipft*itat_Ioss.html 1/24/03 Document Reproduces Poody (Archived) COVER STORIES THE BULLETIN • Friday, Jul 18, 2008 A7 Metolius it is= tln" ` ld ng...:. . ~c rrt ,I le . e; ,a .c- Continued from Al The commissioners, who are holding their monthly meeting in Sisters today, had made the two-mile hike up to the Black Butte summit Thursday morn- ing to get a better perspective on the Metolius Basin, and to learn about local fish and wildlife projects. And with the Legisla- ture slated to consider updating Oregon's destination resort rules in the next session, and ODFW offering input to the governor about impacts to different spe- cies and their habitats, people discussed the consequences of development. People including State Sen. Betsy Johnson, D-Scappoose, whose family owns a home near the headwater, and members of the Friends of the Metolius have expressed concerns that the two proposed Metolius Basin destina- tion resorts would interfere with the area's groundwater. In 2007, an effort to pass legislation ban- ning resorts near the river died in the Legislature. The Land Use Board of Appeals ruled earlier this year that changes need to be made to Jefferson County's des- tination resort zone plans, but the changes weren't enough to prevent the developments from going forward. And the Oregon Court of Appeals recently up- 'held LUBA's decision. Viewing the area from above gave commissioners a different perspective on the situation in the basin, said Carter Kerns, a Fish and Wildlife commissioner, after the hike. "I was surprised at the num- ber of resorts that are planned," Kerns said. "I thought our land use laws would have done a bet- ter job of regulating so we didn't have so many of them" . There is a finite amount of natural resources in Oregon, he said, and development is caus- irig the loss of wildlife habitat and migration routes. Plus, with destination resorts, as with other changes to the land use, such as wind farms or lands that are put in a conservation trust, opportu- nities are often lost for hunters and fishermen, he said. . "I don't have the answers, but we're becoming a land of no use," Kerns said, adding that these off- limits areas change a lifestyle for many Oregonians. When you put a whole bunch of people in an area, Dale said, wildlife often go from a valuable resource to a problem. Elk tram- ple golf courses, deer eat land- scaping and cougars start get- ting too close for comfort. That also puts an added burden on the Fish and Wildlife agency to deal with those conflicts, he said. Fish and Wildlife acts as a consultant to counties and de- velopers when it comes to des- tination resorts, said Glen Ardt, wildlife habitat biologist with the department. But it's some- times a challenge for the agency to ensure that the developments follow through with the projects they are supposed to complete to make up for the disturbances to wildlife and habitat, he said. And Fish and Wildlife is in- creasingly finding itself on the opposing side to counties, who want the economic boost that destination resorts bring. . The issue extends from desti- nation resorts to other develop- ments as well. Plans for the Sky- line Forest west of Bend call for much of it to remain forested but for' some development as well. But that could have a serious im- pact on the deer population that lives there. The herd is already depressed at about 2,200 animals; said Steve George, district wildlife biologist. And the development would block their migration patterns, which could cut the herd in half, he said. And then there are the water is- sues that come with development. From the top of Black Butte, Dale pointed out that the Upper Des- chutes Basin has a groundwater system that's closely tied to sur- face water flows. . "We've got to be careful to not allow these money-making ven- tures to soak up the water," said Zane Smith, a Fish and Wildlife commissioner from Springfield. One of the problems that desti- nation resorts pose is that they of- ten are located in areas that were previously working landscapes, whether it be timt erlands or graz- ing lands. "You don't Have . to plop them down in these -valuable places," Smith -said, adding that there could be. places where destination resorts-:would. be appropriate; if the spots aren't critical habitat for animals, and aren't in areas where wildfires and.water are issues. The Metolir•.ts.resort, proposals are concerning because of,the loss of.deer wiriterrang@, he said, since there is often not. enough of that to support the herds: For : Englund, : the impact on wildlife.is a concern, he.said. And .from Black Butte, covered in. wild- flowers Thursday moming, he could see the problem that resorts might pose for migrating animals. "Being up there, you got a good picture of a very productive ba- sin," he said. "We should be wise users there" Kate Ramsayer can be reached at 541-6I7--7811 or kramsayer@bendbulletir. coma' "Courtesy Department of Fish and Wildlife Fish and Wildlife Commissioners Zane Smith, left, and Carter Kerns look out over the Cascades during a field trip up Black Butte on Thursday morning. "It was a great perspective," Kerns said. Document Reproduces Poody 9®Irnhiont Al Rse COOPERATIVE CLOSURE Tumalo Winter Range T be *G---y~sr~• *s~ - ~ Y _ e :I. "s.wr t ~i 12 16 1 :1 - -0 i3 ]e •~,t tif3s}' yy~~y c a' _ r. 4i x ,:1 1 ;q7i r~,F. t L U'i ~ r •o? _ r _ s u~ s 1-4 17 4,91i fi.T ' PM, '1S d.~~SutS YJn•- .'fin ./~..i r I i 1. Closure Area T~ ~ Roads open to y r~ . , 4r travels Open to A1'Vi Snowmobile of 50 In. width of lest - n ,•,i zi u ,s,. L ~ ' This .ehu.le travel % r except i11•., , :1 n• i bn.• from December 1 through Marrn 1 open mans are marked with dotted lines- ~s Special penml - t t•toirnrd ter h~~lhmafe reasons. Private landownnrt. nq,1..,...-. arc- permrtla°d access Io Iheir lands. Federal. S1.:; ,.,1. ••nlpl,:,..._:::: parmiued entry in perfonnan, Objectives Protect wim:-:n_'. nri zither wild1W. irr•m harassment by controllinc v-r, , • .a. thereby- T I-Increasing winter survival of deer 19 S 2- Providing more hunting recreational opportunities 3. Protecting and improving rangeland If you have ins c<,ncernlno any phase of this closure. pleasa ,:c•ntacI the Deschutes National Forest. Oregon State Polic,% c 1 r, n-r artn,eni of Fish and Wildlife. Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.ora BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JANUARY 20, 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Signature of Documents No. 2010-028 through 2010- 037, Towing and Storage Service Contracts for Vehicles Impounded through the Sheriff's Office - Sue Brewster and Rebecca Brown, Sheriff's Office 3. CONSIDERATION of Chair Signature of Document No. 2010-005, the Oregon Commission on Children & Families' Partnership Agreement - Debi Harr or Hillary Saraceno, Commission on Children & Families 4. CONSIDERATION of Chair Signature of Document No. 2010-038, an Agreement with Accountable Behavioral Health Alliance (Nunc Pro Tunc) - Nancy England, Health Services 5. CONSIDERATION of Second Reading and Adoption of Ordinance No. 2010-004, Amending Deschutes County Code to Allow for Setting Fees Semi- Annually - Dave Kanner, County Administrator 6. CONSIDERATION of Authorizing County Administrator's Signature of Document No. 2010-048, a Memorandum of Agreement with the Oregon Department of State Lands regarding Cooperative Planning for Development of the South Redmond Tract - Dave Kanner, County Administrator Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 1 of 8 Pages 7. A PUBLIC HEARING, and Consideration of First and Second Readings and Adoption, by Emergency, of Ordinance No. 2010-002, regarding Destination Resort Map Amendment Procedures - Peter Gutowsky, Community Development CONSENT AGENDA 8. Signature of Document No. 2010-004, a Service Agreement between the Sheriff's Office and Motorola regarding Maintenance of Radio Equipment 9. Signature of Order No. 2010-012, Declaring Certain County Personal Property Surplus, and Authorizing Sale 10. Signature of Document No. 2010-024, a Trustee's Deed regarding a Default Property 11. Chair Signature of Document No. 2010-006, an Amendment to an Intergovernmental Agreement with the State of Oregon regarding the Healthy Start Program 12. Signature of Resolution No. 2010-002, Appropriating a New Grant for Adult Parole & Probation 13. Signature of Resolution No. 2010-003, Transferring Appropriations in the District Attorney's Office Fund 14. Signature of Resolution No. 2010-004, Transferring Appropriations in the Health Fund 15. Signature of Resolution No. 2010-005, Appropriating a New Grant in the Commission on Children & Families' Fund 16. Signature of Resolution No. 2010-001, Initiating the Vacation of a Portion of Rock Springs Road 17. Signature of Order No. 2010-002, Vacating a Portion of Rock Springs Road 18. Signature of Letters: Appointing Brenda Pace to the Weed Board through December 31, 2012; and Reappointing Jason Deney, Larry Pecenka and John Stephenson through December 31, 2012 19. Signature of Letters Reappointing Chris Bellusci and John McLeod to the Central Oregon Intergovernmental Council Board, through December 31, 2011 Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 2 of 8 Pages 20. Signature of Letters Appointing Mary Fuller, Martha Miller, Roger Olson and Lindsay Stevens to the Deschutes County Addictions & Mental Health Advisory Board, through December 31, 2011 21. Signature of a Letter Accepting the Resignation of Brent Johnson from the Board of Deschutes River Recreation Homesites Special Road District #6, and Thanking Him for His Service 22. Signature of Letters Appointing Neal Henderson (through December 31, 2011) and Adena Glassow (through December 31, 2012) to the Board of Deschutes River Recreation Homesites Special Road District #6 23. Signature of a Letter Accepting the Resignation of Bob Beal from the Deschutes River Mitigation and Enhancement Committee, and Thanking Him for His Service 24. Approval of Minutes: • Business Meeting: January 6 • Work Sessions: March 30, 2009; April 20, 2009; January 6 CONVENE AS OF GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 25. CONSIDERATION of Signature of a Letter Appointing Doris Brannan to the Sunriver Service District Budget Committee, through June 30, 2012 CONVENE AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 26. CONSIDERATION of Chair Signature of a Notice of Intent to Award Letter for the Replacement of Dispatch Radio System Equipment - Rick Silbaugh, 911 27. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District (two weeks) CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 28. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District (two weeks) Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 3 of 8 Pages RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 29. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County (two weeks) 30. ADDITIONS TO THE AGENDA Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for T°TY. Please call (541) 388-6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572) Monday, January 18 Most County Offices will be closed to observe Martin Luther King, Jr. Day Thursday, January 19 10:00 a.m. Employee Benefits Advisory Committee Meeting Wednesday, January 20 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) - possible quorum of Planning Commissioners 6:00 p.m. Possible continuation of public hearing from morning meeting, regarding destination resort remapping Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 4 of 8 Pages Thursday, January 21 7:00 a.m. Regular Meeting with the City of Redmond Council, Council Chambers, Redmond 11:00 a.m. Meeting with Commission on Children & Families' Board and Department 5:30 p.m. Joint Meeting with City of Bend Council, Bend-La Pine School District Representatives and Bend Metro Park and Recreation Representatives, at Bend Metro Park & Rec Office (799 SW Columbia St.) Friday, January 22 11:30 a.m. Economic Development for Central Oregon Forecast Luncheon, at Riverhouse 6:30 p.m. Redmond Chamber of Commerce Business Awards Banquet, at Eagle Crest Monday, January 25 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, January 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) - possible quorum of Planning Commissioners Thursday, January 28 8:00 a.m. Annual Goal Setting Retreat Thursday, January 28 8:00 a.m. Annual Goal Setting Retreat (continued, if needed) Monday, February 1 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, February 3 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 5 of 8 Pages Monday, February 8 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, February 10 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, February 15 Most County Offices will be closed to observe Presidents' Day Wednesday, February 17 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, February 22 10:00 a.m. Board of Commissioners' Meeting 12:00 noon Regular Meeting with Department Directors 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, February 24 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, March 1 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) Wednesday, March 3 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 6 of 8 Pages Thursday, March 4 10:00 a.m. Quarterly Update with the District Attorney 11:00 a.m. Quarterly Update with Community Development 1:30 p.m. Quarterly Update with the Road Department 2:30 p.m. Quarterly Update with Solid Waste Wednesday, March 10 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, March 11 7:00 a.m. Regular Meeting with the City of Redmond Council, Council Chambers, Redmond 11:00 a.m. Quarterly Update with Health and Human Services Monday, March 15 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, March 17 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, March 18 9:00 a.m. Semi-annual Meeting with the Clerk 10:00 a.m. Quarterly Meeting with Community Justice Monday, March 22 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, March 24 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 7 of 8 Pages Thursday, March 25 9:00 a.m. Quarterly Meeting with the Fair & Expo 10:00 a.m. Semi-annual Meeting with the Assessor 11:00 a.m. Quarterly Meeting with the Commission on Children & Families 2:00 p.m. Quarterly Meeting with the Sheriff Monday, March 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, March 31 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Wednesday, January 20, 2010 Page 8 of 8 Pages