HomeMy WebLinkAboutOpponent Documents - Loyal Land CasePaul D. Dewey Attorney at Law
June 11, 2014
Deschutes County Board of Commissioners
1300 NW Wall St.
Bend, OR 97701
1539 NW Vicksburg
Bend, Oregon 97701
(541) 420-8455
pdewey@bendcable.com
Re: Loyal Land, LLC File No. DR -11-8
Remand from Land Use Board of Appeals and Oregon Court of Appeals
Dear Commissioners:
This submittal on behalf of Nunzie Gould is to comply with the Board's direction at the June 4
hearing to submit a response by June 11.
A. Introduction.
Commissioner DeBone at the hearing asked the parties to address the history of destination
resorts in Deschutes County, apparently referring to approval processes for other destination
resorts. Unfortunately, there is simply not enough time to give such an analysis on this complex
subject where each destination resort is so different.
For example, it is very difficult to compare the application processes and the issues brought out
between, say, Pronghorn and Thornburgh. Pronghorn is 640 acres in size and Thornburgh is
three times that size at around 1,970 acres. Most of the other Goal 8 destination resorts approved
in Deschutes County are not only smaller than Thornburgh but are often associated with other
developments or have occurred over an extended time. For example, Caldera is essentially an
extension of the Sunriver Resort. The Eagle Crest resort was actually developed with two
separate land use applications filed years apart.
The only evidence in the Record as to comparability of the Thornburgh Destination Resort
proposal with these other resorts is the comments of Commissioner Luke where, based on his
experience, he felt that the Thornburgh Resort application was not as complete as other
destination resort applications and constituted a lowering of standards.
Each resort also has its own background of financing and issues involving economic conditions
and conflicts between investors and owners.
Compared to the other Goal 8 destination resorts in Deschutes County (not the older Black Butte
Ranch and Sunriver that were developed under different rules), the proposed Thornburgh Resort
Deschutes County Board of Commissioners
June 11, 2014
Page 2
was clearly much larger and much more complex. Ultimately, it was simply too big to get off the
ground.
B. Summary of argument.
Loyal Land filed this application to establish that the Destination Resort CMP permit had been
initiated. This was a very significant application because, if granted, it would have meant that
the approval was permanent and would never expire.
This was an odd application because usually destination resort developers first seek extensions of
their permits. Only after the exhaustion of all of their extensions and the completion of as much
of the resort as possible would an application for an initiation of use determination be made.
Loyal Land tried to shortcut this process by prematurely filing for the initiation of use
determination. Though it also applied for and got a one-year extension, it did not use that time
extension to actually pursue the FMP or other work on the resort. As discussed below, it then
missed the deadline for a second extension.
Following rulings of LUBA and the Oregon Court of Appeals that initiation of use had not been
established here, the Hearings Officer on remand followed the direction of LUBA and the Court
in a detailed 47 -page opinion and concluded that the conditions of approval had not been
substantially exercised and that Loyal Land was at fault for not fully complying with the
conditions.
Loyal Land's appeal to the Board should be denied where 1) Loyal Land is fundamentally at fault
for not fulfilling the conditions of approval because it did not use the available time of
extensions; 2) where most of Loyal Land's appeal issues have already been decided by LUBA
and the Court of Appeals and thus are barred; and 3) where so many of Loyal Land's assertions
of fact are incorrect.
C. Loyal Land is at fault for not fully complying with the conditions of approval.
None of Loyal Land's excuses for its fault in not fully complying with the conditions of approval
is relevant given its failure to apply for permit extensions on time. All of Loyal Land's excuses
are premised on the Applicant not having enough time to pursue the FMP and other land use
applications required by the CMP decision and its conditions of approval. Loyal Land blames
delays allegedly caused by the BLM, by the County, by appeals, by the economic recession and
by other factors.
None of these excuses justify Loyal Land's delay in pursuing the FMP, but even if they did, they
are irrelevant. Loyal Land had the option of obtaining exceptions out to November 8, 2016. Its
failure to seek those extensions is its fault. It would have had over five years to comply with the
conditions of approval but did not do so. If it had pursued all the time available to it and then
claimed that the conditions couldn't be done, that could have been the basis for an argument that
it was not at fault. But not availing itself of all the available time is its fault.
Deschutes County Board of Commissioners
June 11, 2014
Page 3
Actually, as Loyal Land admitted at the hearing, it did obtain a one-year extension. That meant it
had not just the nine months it admits to having to pursue the FMP, but actually one year and
nine months. Despite having that substantial time, Loyal Land did nothing to pursue the FMP.
Loyal Land at the hearing also acknowledged that it applied for a second extension but submitted
the application too late. A variety of possible reasons for it missing the filing date were
mentioned,' but ultimately it was because it waited until the last minute to do so.
Then Loyal Land finalized the closure of the extension option by formally withdrawing from the
County all extension applications. It could have appealed LUBA's date to the Court of Appeals
and it could have pursued a permit extension approval with the County anyway, including an
appeal to this Board, but it closed the door on itself. Again, that is its "fault."2
D. Loyal Land's appeal issues are barred by the previous decisions of LUBA and the
Oregon Court of Appeals.
Loyal Land raises a number of issues on appeal from the Hearings Officer decision that have
already been resolved by LUBA and the Court of Appeals. That is contrary to the Oregon
Supreme Court ruling in Beck v. City of Tillamook, 313 Or 148, 153-154 (1992), that on a
remand the parties may not raise old, resolved issues:
"In other words, when the record is reopened, parties may raise new, unresolved
issues that relate to new evidence. The logical corollary is that parties may not
raise old, resolved issues again. When the record is reopened at LUBA's direction
on remand, the 'new issues' by definition include the remanded issues, but not the
issues that LUBA affirmed or reversed on their merits, which are old, resolved
issues."
The Supreme Court in Beck also addressed the issue of whether parties must seek judicial review
of the legal issues that LUBA decided against them at that time, as opposed to waiting after a
remand and a second appeal to LUBA. 313 Or at 150. The Court ruled that judicial review had
to be sought in the first instance.
One reason given was that the Hearings Officer had decided that December 7 was the end of the two-year period,
but LUBA ruled that it was November 18. Since Loyal Land waited until the last minute (in December) to apply for
the extension, it then missed the deadline. Note that this is no excuse since it was very obvious that LUBA could set
another date since there was an appeal to it arguing for an earlier date.
2 Loyal Land at the hearing argued that "fault" must involve some "moral culpability." This is yet another new issue
it is attempting to raise on appeal, not raised in the prior proceedings to the Hearings Officer, LUBA or the Court of
Appeals, and one not even raised on the remand to the Hearings Officer or included in the notice of appeal to the
Board. There is also no basis for this assertion in the language of the Code and it is illogical. Essentially, Loyal
Land is arguing that it could be at fault only if it maliciously intended or with bad intent decided not to file for the
extensions on time or not to pursue the FMP remand.
Deschutes County Board of Commissioners
June 11, 2014
Page 4
Contrary to that holding, Loyal Land is attempting here to raise multiple issues LUBA decided
against it, but which Loyal Land did not appeal to the Court of Appeals.
Still other issues being raised here by Loyal Land are barred because they were not raised below
and were not remanded. Hatley v. Umatilla County, 66 Or LUBA 265, 273 (2012).
The scope of the LUBA remand was narrow:
"On remand the hearings officer must consider whether all of the 38
conditions of approval have been `substantially exercised,' including those that
required that the applicant seek additional permits and approvals....[T]he hearings
officer must be able to find both that the 38 conditions of approval, viewed as a
whole, have been substantially exercised and that for any of the 38 conditions of
approval where there has been a failure to fully exercise the condition, the
applicant is not at fault. Of course the evidentiary record must also be such that it
provides substantial evidence for such findings. We suspect that the hearings
officer will encounter difficulty in making those findings, but that is the only
potential route to a decision under DCC 22.36.020(A)(3) that the use approved by
the CMP approval — the Thornburgh Destination Resort — was initiated within the
two-year period required by DCC 22.36.010(B)(1) so that the April 15, 2008 CMP
decision is not void." (Slip Op., pp. 20-21)
1. The need to consider all of the conditions of approval has already been established.
A central appeal issue Loyal Land attempts to relitigate here is whether it is appropriate to
consider compliance with all 38 conditions of approval or just those that it contends do not
involve subsequent land use approvals like the FMP and final plats. See Loyal Land's arguments
at pages 3-4, 11-13 and 22 of its Power Point presentation.3 This is an issue that was resolved by
LUBA, appealed by Loyal Land to the Court of Appeals and affirmed by the Court of Appeals.
LUBA ruled:
"Simply stated, the parties' dispute whether the obligation to substantially
exercise 'the conditions' applies to all 38 conditions or only to the 15 conditions
that the hearings officer found to be relevant." (Original emphasis.) (Slip Op., p.
17)
LUBA then proceeded to review the reasoning of the Hearings Officer including the argument
about "the three-step destination resort process." LUBA further explained how the Hearings
Officer erred and that all of the conditions of approval needed to be addressed:
"We can appreciate that initiating a complicated project like the
Thornburgh Destination Resort by `substantially exercis[ing] all 38 conditions of
approval within two years and demonstrating that any failures to `fully comply
3 Note that the Power Point pages are not paginated, but the pages given here are in the consecutive order presented
in the Power Point.
Deschutes County Board of Commissioners
June 11, 2014
Page 5
with the [38] conditions is not the fault of the applicant' is an extremely difficult
and perhaps practically impossible obligation in this case, given the way the 38
conditions of approval are written. But that difficulty is equally attributable to (1)
the way DCC 22.36.020(A)(3) is written, and (2) the way the 38 conditions of
approval are written."
[B]y imposing conditions of approval that would require the applicant first
to secure additional land use permits, the [county] effectively required the
applicant to secure those additional permits within the two-year period imposed
by DCC 22.36.010(B)(1) to avoid having the CMP permit to become void....On
remand the hearings officer must consider whether all of the 38 conditions of
approval have been `substantially exercised,' including those that required that the
applicant seek additional permits and approvals." (Emphasis added.) (Slip Op.,
pp. 19-20)
Loyal Land appealed this decision of LUBA to the Oregon Court of Appeals and made
arguments including that the County's three-step destination resort process was being violated
(the same argument being made again now by Loyal Land). See the attached Loyal Land brief to
the Court of Appeals. (Ex. A, p. 10)
LUBA's and the Court's decisions also make sense, as the County CMP decision's requirement
that all permits are included within the conditions of approval is actually consistent with the
central role of the CMP approval and the destination resort code. As evident by the substantial
provisions applying to the CMP, it is actually the cornerstone of the destination resort approval.
Particularly where the Applicant chose to defer so many elements of compliance with the CMP
until later land use approvals, it was appropriate for the County CMP decision to include those
subsequent land use approvals in the CMP conditions of approval.
2. It has already been decided that fault must be determined for aky failure to fully
comply with the conditions of approval.
Another central issue raised by Loyal Land in its appeal is whether the provision that "any failure
to fully comply with the conditions [must not be] the fault of the applicant" applies to all of the
conditions of approval or only to the ones the Hearings Officer found in her first decision to be
relevant. Once again, LUBA has already ruled upon this issue:
"[T]he hearings officer must be able to find both that the 38 conditions of
approval, viewed as a whole, have been substantially exercised and that for any of
the 38 conditions of approval where there has been a failure to fully exercise the
condition, the applicant is not at fault." (Italics original; underline added.) (Slip
Op., p. 20)
Deschutes County Board of Commissioners
June 11, 2014
Page 6
It is not appropriate for Loyal Land to again raise this issue where it has already lost it at LUBA.
LUBA's ruling is that there has to be a finding that the applicant is not at fault for "any" of the 38
conditions of approval where there has been a failure to fully comply with the condition. This
applies to all the conditions of approval and LUBA did not rule, as Loyal Land is now arguing,
that the interpretation of "any" should mean that if the Applicant is not at fault for any one failure
then it is absolved of fault for all other failures. Accordingly, Loyal Land should be barred from
raising this issue here because LUBA ruled against it and Loyal Land did not appeal LUBA's
decision to the Court of Appeals.
This issue should additionally be barred where it was not raised to the Hearings Officer on
remand.
3. Loyal Land's issue that "exercise" does not mean "compliance" is barred since it
was not raised in the prior case and appeals.
Loyal Land in its appeal here argues that there are different meanings to "exercise" than to
"compliance" in DCC 22.36.020(A)(3) which requires that "the conditions of a permit or
approval have been substantially exercised and any failure to fully comply with the conditions is
not the fault of the applicant." That argument is barred here where Loyal Land did not raise it to
the Hearings Officer in the first decision, did not raise it to LUBA and did not raise it to the
Court of Appeals.
Loyal Land's argument that the term "compliance" means something less than "exercise" has no
basis in fact and is contrary to LUBA's use of the terms interchangeably.
Loyal Land contends that LUBA itself created this distinction, but that is not correct. LUBA
described two situations for assessing fault in the context of "contingent or continuing
obligations," one involving obligations that may never exist (such as a condition requiring a map
change if the development plans change) and the other involving required additional land use
approvals (like the FMP and like condition of approval #7). (Slip Op., p. 21)
LUBA clearly did not say that Loyal Land need not show that it is not at fault for obtaining those
additional land use approvals. The requirement of obtaining those additional land use approvals
is the core of LUBA's decision and applies to the assessment of fault as much as to the
determination of whether there has been substantial exercise of the conditions.
LUBA did not distinguish between "exercise" and "compliance" in its decision or assign
different meanings to the terms:
"[T]he hearings officer must be able to find both that the 38 conditions of
approval, viewed as a whole, have been substantially exercised and that for any of
the 38 conditions of approval where there has been a failure to fully exercise the
condition, the applicant is not at fault." (Italics original; underline added.) (Slip
Op., p. 20)
Deschutes County Board of Commissioners
June 11, 2014
Page 7
As shown in the above quote, LUBA used the term "fully exercised" interchangeably with "fully
comply." The reason is that under the terms of the CMP decision and its conditions of approval
the compliance means exercising all of the conditions of approval. This is not an issue of
interpreting the Code meaning of "exercise" and "compliance" but rather of interpreting the CMP
decision itself. This has already been decided upon by LUBA.
If Loyal Land disagreed with LUBA's interpretation, it was incumbent upon it to appeal the issue
to the Court of Appeals. Since it did not, it is barred from raising it here.
Additionally, Loyal Land's new argument in this appeal that "exercise" means actually carrying
out a condition while "compliance" means carrying something out only if a contingency to
performance has occurred does not make sense. For example, Loyal Land argues in this appeal
that it has fully complied with condition of approval #7 (requiring naming roads when a final plat
is done) since it hasn't named any roads (because it hasn't done any final plats). Loyal Land
contrasts this with the requirement of "substantially exercised" which it says means condition #7
has to be actually carried out. But LUBA determined that the CMP conditions of approval
required that the final plat be done, so there is no difference between compliance and exercise.
4. Loyal Land's argument for an exception to the Beck rule.
Apparently in an attempt to get around the Beck rule prohibiting raising new issues, Loyal Land
claims, without citing any authority, that there is an exception where an issue is about the
meaning of a code provision. Loyal Land argues that ORS 197.829 means that the Board of
County Commissioners does "not need to defer to LUBA." (Power Point, p. 2) That statute and
cases interpreting it require LUBA to affirm a local government's interpretation of its own
regulations unless the interpretation is inconsistent or not plausible.
This argument on appeal is wrong for several reasons. First, this is not a case where the Board
has made a code interpretation and LUBA is reviewing it. Instead, LUBA has already made a
decision which has been affirmed by the Court of Appeals, and the County is now complying
with it.
Second, this is a decision not only of LUBA but also the Oregon Court of Appeals. ORS
197.829 does not apply to the Court of Appeals.
Third, the fact that the Court of Appeals affirmed LUBA's decision means that as a matter of law
LUBA properly construed the County Code here. The Court in Tonquin Holdings, LLC v.
Clackamas County, 247 Or App 719, 722-723 (2012), explained that it reviews "LUBA's order
for whether LUBA properly construed" a code. In affirming LUBA's decision, the Court
decided that LUBA "properly construed" DCC 22.36.020(A)(3). Now Loyal Land is asking the
County Board to decide that LUBA did not properly construe the Code.
Finally, even if the County could supplant on remand a Code interpretation by LUBA and the
Court of Appeals, this case is not only about an interpretation of county code language. LUBA
Deschutes County Board of Commissioners
June 11, 2014
Page 8
emphasized in its decision that its ruling was based on the language of the land use approval by
the County, the CMP conditions of approval:
"[T]hat difficulty is equally attributable to (1) the way DCC 22.36.020(A)(3) is
written, and (2) the way the 38 conditions of approval are written." (Emphasis
added.) (Slip Op., p. 19)
LUBA went on to state:
"If the county had anticipated in its CMP decision that some conditions of
approval might be difficult or impossible to satisfy fully within two years..., the
county perhaps could have drafted those 38 conditions of CMP approval as
notices of future conditions of approval....[Bly imposing conditions of approval
that would require the applicant first to secure additional land use permits, the
[county] effectively required the applicant to secure those additional permits
within the two-year period...." (Emphasis added.) (Slip Op., pp. 19-20)
Where LUBA's decision was not solely about an interpretation of code language to which the
Board might be granted some deference, but involved other determinations of fact and law, there
is simply no basis to argue an exception to the Beck rule that these appeal issues are barred.
Again, it should be noted that LUBA's ruling that the CMP decision (not just the Code) means
that all of the conditions of approval must be met, that additional land use permits had to be
secured, and that fault must be determined for any failure to fully comply, was not appealed by
the Loyal Land to the Court of Appeals. Loyal Land only appealed LUBA's code interpretation.
See. Ex. A. p. 6.
E. Loyal Land makes substantial incorrect or incomplete assertions of fact.
Loyal Land in its Power Point presentation, the Livingston letter, the Larsen affidavit, the
DeLashmutt affidavit and the Petersen report make numerous assertions of fact that require
correction or clarification. The following is a listing of some of the incorrect statements:
1. The Power Point presentation's statements.
There are a number of statements in the Power Point which require correction and clarification.
Most are discussed already above. Some others are:
a. As detailed above, most of Loyal Land's arguments are barred since they have
already been decided by LUBA and the Court of Appeals.
b. The Power Point is incorrect in suggesting that the CMP only provides some
vague "framework" for development, when the CMP actually includes many pages of detailed
criteria.
Deschutes County Board of Commissioners
June 11, 2014
Page 9
c. The Power Point is not correct in asserting that enforcement of the CMP
decision's conditions of approval would "effectively eliminate resort developments PLUS other
multi -phase, complex projects." The decision before the Board is unique to Thornburgh.
d. The chronology in the Power Point is wrong in stating that Ms. Gould "appealed
(and lost)...the water rights permit." Ms. Gould did not appeal the water rights permit and the
appeal of it was not lost by anyone. There was a settlement between the Applicant and the
appellant, WaterWatch of Oregon.
e. The chronology is also incomplete because it leaves out the one-year extension of
the CMP permit to December of 2012, the untimely application for another extension to 2013,
and the formal withdrawal of all pending extensions.
f. The Power Point suggests that only Ms. Gould filed record objections when, in
fact, record objections were filed by two other parties, including Thornburgh which probably
filed the most extensive record objection of all. (COA CMP Rec. 86-93)
g. The Power Point inappropriately blames the County by asserting: "initial County
misinterpretation of this statute created false urgency in TRC's bankruptcy." Apparently, the
County warned the Applicant of the potential expiration of time within which the FMP remand
needed to be done (by August of 2011). The County backed off on that interpretation, but the
Applicant still "blames" the County and suggests that Loyal Land would not have forced
Thornburgh into foreclosure otherwise. There is no basis for that and, in fact, the County was
doing Loyal Land a favor by pointing out the urgency with which it needed to pursue this
development. The CMP approval was expiring in November of 2011. Despite this warning from
the County, Loyal Land delayed and ended up never pursuing the FMP approval at all.
h. Regarding alleged delay by BLM, the Power Point states:
"Delay in BLM identification of wildlife mitigation sites. This prevented any
action on FMP remand from 8/17/2010 until at least 2/23/2011, less than 9 months
before CMP due to expire." (Original emphasis.)
This statement is wrong in two respects, first that no action was possible on the FMP
remand before February 23, 2011. That fact has not been established, the BLM email
does not substantiate it and the Court of Appeals remand was in April of 2010. Second,
even if that were correct, the Power Point is wrong in saying that Loyal Land had "less
than 9 months before CMP due to expire." As Loyal Land admitted at the end of the
hearing, it had obtained a one-year extension, so it had one year and nine months. Had it
timely filed for other extensions, it would have had even more time.
2. The Livingston letter statements.
A number of Mr. Livingston's statements require correction or clarification:
Deschutes County Board of Commissioners
June 11, 2014
Page 10
a. Mr. Livingston emphasizes that there were "numerous objections filed by
opponents" to the record on the CMP appeal. Mr. Livingston omits the fact that Thornburgh
itself filed an extensive objection to the record.
b. He also exaggerates how long it took for the record to be resolved, contending that
"it took almost a year." In reality, it took six months to find resolution. (COA CMP Rec. 86-93)
c. It is no excuse that the Court of Appeals interpreted the law "more strictly than
Thornburgh" expected.
d. Mr. Livingston's blaming of BLM for being late in issuing the CBRAP ignores
the fact that other areas for mitigation could have been sought by Thornburgh and that projects
within the CBRAP have been available from 2010 on. Examples are attached, including Ex. B,
an April 27, 2010, BLM news release on prescribed fire work in Central Oregon; Ex. C, the May
2010 listing of DSL lands on Cline Buttes having been acquired from BLM and available for
mitigation; Ex. D, an October 11, 2011, notice on Eagle Crest vegetation treatment; Ex. E, an
October 26, 2011, notice of Deschutes County land needing mitigation; Ex. F, a November 7,
2011, identification of Cline Buttes fuel treatments from October 2011 through 2013; Ex. G, a
February 1, 2012, notice of seasonal wildlife closures; and Ex. H., a 2014 notice of possible
OHV work..
Additionally, the BLM letter from Molly Brown that was attached to the February 23, 2011,
email4 regarding wildlife mitigation work said:
"It is important for us to meet soon and talk about your future plans and begin
coordinating our work." (Emphasis added.)
Nothing was then done by the Applicant though it got an extension to December 2012.
e. Mr. Livingston refers to the wildlife mitigation being deferred from the CMP to
the FMP and that it could not be resolved even after almost three years due to BLM delays.
Again, the location of where wildlife mitigation could occur should have been established
upfront before a CMP application was even submitted.
f. Mr. Livingston concludes that with so many requirements "there is good reason to
believe that every time period established by statute or ordinance will be fully used in the future,
as in the past, and more likely than not, will have to be extended." The fact that permit approvals
need to be extended is not a basis for excusing nonperformance. Lengthy extensions have been
granted other resorts. In fact, the availability of obtaining extensions is a critical point here
where the Applicant did not timely pursue such extensions.
g. Mr. Livingston refers to strong local opposition and controversy involving this
development. In fact, scores of people testified against the proposed development. Such
4 Note that while the email apologizes that "this has taken so long," that is not an admission of fault by BLM. What
was requested by Thornburgh and when is not revealed.
Deschutes County Board of Commissioners
June 11, 2014
Page 11
opposition should have come as no surprise given that this destination resort was going to be the
largest such Goal 8 destination resort in Deschutes County, if not the state. It would have been
three times the size of Pronghorn.
h. Mr. Livingston asserts that the Applicant could not be at "fault" for failing to meet
a schedule "that could not be met." That alleged fact simply has not been established and now
will not be since the Applicant withdrew its pending applications for extensions and did not
achieve four additional years within which to meet that schedule.
3. The DeLashmutt affidavit statements.
a. The assertion is made that he was advised to budget only $500,000 and schedule
18 months for the CMP/FMP. For such a large project, 3 times the size of Pronghorn, that was
very unrealistic.
b. The reference in Paragraph 2 to forming an arrangement with David Chapman is a
reminder that the Thornburgh difficulties began long before any economic recession. Conflict
and litigation occurred between Thornburgh and Chapman very early on.
c. Though Mr. DeLashmutt only refers to objections filed by Nunzie Gould, in fact a
number of people were opposed to the project, including Steven Munson who appealed to
LUBA.
d. Only record objections from Ms. Gould are mentioned, though Thornburgh itself
filed extensive record objections on the CMP.
e. Mr. DeLashmutt is wrong in stating that the record preparation "took nearly a
year," when it in fact took six months. (COA CMP Rec. ii -iii)
f. Ms. Gould did not file 36 assignments of error, but rather 13, and was sustained
on significant issues including that the developer had to upfront build a significant number of
overnight units to properly establish itself as a destination resort. Gould v. Deschutes County, 54
Or LUBA 205 (2007).
g. Paragraph 4 refers to "an unsuccessful appeal to the Court of Appeals." In fact,
Ms. Gould's appeal to the Court of Appeals was successful.
h. Paragraph 4 also states that the appeals of the CMP "had little, if any, discernable
effect on the project." That is incorrect not only with regard to the required building of the 50
initial overnight units but also with regard to the fact that a detailed wildlife mitigation plan was
required.
i. Paragraph 6 states that Ms. Gould appealed the FMP to LUBA and the Court of
Appeals "numerous times." Actually, there was only one appeal on the FMP to LUBA and then
both Ms. Gould and Thornburgh appealed that decision to the Court of Appeals.
Deschutes County Board of Commissioners
June 11, 2014
Page 12
j. Paragraph 6 also refers to over $4 million being spent on permitting for the CMP
and FMP. That cost would have been substantially reduced if the application had been complete
in the first place, as documented by Commissioner Luke's statements.
k. Paragraph 8 refers to Thornburgh being able "to obtain a remand of the FMP in
August 2010." Actually, it was Ms. Gould who was successful in obtaining a remand of the
FMP. Also, the Court of Appeals issued its remand order in April of 2010, but the Applicant did
nothing to initiate the remand. It was in August of 2010 that Ms. Gould requested the payment of
costs from Thornburgh as part of her successful appeal to LUBA.
1. Paragraph 9 acknowledges that Thornburgh was "looking for additional funding
as early as `beginning in 2006." This precedes the economic recession.
m. Paragraph 17 asserts that Loyal Land testified at the bankruptcy proceeding that
the reason it needed relief from stay was so that the buyer at the foreclosure sale could start the
remand for the FMP by August 16, 2011. This paragraph suggests some blame of the County for
stating there was such a deadline. In reality, there should have been praise for the County in
urging that the FMP remand be initiated soon. With the two-year CMP approval expiring in
November 2011, Loyal Land should have aggressively pursued meeting the conditions of
approval of the CMP, which include pursuing the FMP and other permits.
n. Paragraph 18 states that the LUBA remand order required that the BLM advise
Thornburgh as to potential locations for wildlife mitigation on BLM land. It is only because
Thornburgh chose to do mitigation on BLM land and in particular limited itself to the CBRAP
that there was any specific reference to certain locales. As documented above, there was
substantial opportunity for mitigation work.
o. The references in Paragraph 19 to expenditures for construction of a road not on
the property and construction of a log lodge are irrelevant. Such expenditures were not necessary
for meeting the CMP conditions of approval and any such expenditures on site were premature
given that there was no FMP or plat approval. These sums should have been spent on pursuing
the FMP and other land use applications.
4. The Petersen report statements.
There are several statements in the Petersen report that require comment and clarification.
a. While of course there was an economic recession, it does not necessarily follow
that all problems associated with the Thornburgh Destination Resort are due to that recession.
See the attached Ex. I, an article on bankruptcies occurring during the economic recession but not
caused by it.
b. A central problem with the report is that it fails to distinguish between the size and
complexity of the various resorts it analyzes. Nowhere mentioned in this report is the fact that
Deschutes County Board of Commissioners
June 11, 2014
Page 13
Thornburgh was going to be the largest Goal 8 resort in the area, three times the size of
Pronghorn.
c. The report acknowledges at page 10 that Thornburgh "was also experiencing
challenges in obtaining funding from early 2006 onward." Note that this was just after the CMP
was filed and after assurances had been submitted by Thornburgh that there was adequate
existing financing to fully develop the resort. Obviously, at this stage, there was not adequate
financing. This date also precedes the expenditure of the substantial amounts of money claimed
by Mr. DeLashmutt.
d. Mr. Petersen asserts that for Thornburgh to have "redirected its efforts and
pursued further permitting until market conditions warranted would have been ridiculous." Mr.
Petersen is obviously not aware of Deschutes County's provision allowing an applicant to apply
for up to five years of extensions to complete its permits. There is no basis for Mr. Petersen's
conclusion that such an effort to pursue extensions "would have been ridiculous."
5. The Larsen affidavit statements.
There are a couple of points in Mr. Larsen's affidavit that require correction or clarification:
a. Mr. Larsen claims that it pursued a motion for relief from stay at the bankruptcy
proceedings on Thornburgh because it thought that a remand of the FMP was needed by August
2011. That shows that Loyal Land was, in fact, aware of the need to move forward with this
development. Even if a remand was not being prohibited beyond the date of August 2011, the
County warning about options being foreclosed went unheeded.
b. The affidavit also suggests that Mr. Larsen was not at fault and did not conflict
with Thornburgh. This is contrary, however, to the Thornburgh bankruptcy statements. See our
June 4, 2014, letter, Ex. 5, Section 6.1.1.4 where Thornburgh alleged that "Larsen and
Loyal...participated in the wrongful conduct against debtor described...above." See also the
attached Ex. J showing a legal action by Thornburgh against Mr. Larsen. As the Hearings
Officer found, internal conflict between owners and investors was the fault of the Applicant.
F. The Hearings Officer assessments of the conditions of approval should be affirmed.
The Hearings Officer did a detailed assessment of the conditions of approval to determine
whether they were substantially exercised and, for those not fully complied with, whether the
Applicant was at fault. She also explained the logic of weighing the significance of a condition
of approval when doing an assessment of whether the conditions "as a whole were substantially
exercised." Her review was thorough and should be affirmed on appeal.
G. A number of conditions of approval are no longer complied with.
In the first case before the Hearings Officer, we argued that a number of conditions that had been
determined to be fully satisfied were no longer so. We pointed out that after all the investor
Deschutes County Board of Commissioners
June 11, 2014
Page 14
infighting, bankruptcy and other legal proceedings that the Applicant did not hold the water
rights and other required permits. With all of the fragmented ownerships of property, permits
and rights, the destination resort is substantially different and more complex than what was
approved 6 to 10 years ago.
Loyal Land argues that issues regarding changed conditions of the resort since the time of the
CMP approval cannot be raised now since LUBA ruled that for purposes of determining whether
the resort has been timely initiated it is not necessary to consider events that postdate the dates
the CMP conditions of approval were fully satisfied. (Slip Op., p. 23)
While we would normally agree that this claim should not be relitigated here, since Loyal Land is
asking the Board to ignore LUBA's and the Court of Appeals' decisions on other matters, we
wish to preserve our right to do the same if the Board goes down that road. See LUBA Rec. 306-
307, 311, 353, 469 and 474 for details on all the now differing ownerships of water rights, water
mitigation rights, rights-of-way and permits. Additionally, with so much of the BLM's CBRAP
already implemented, the 2008 Thornburgh wildlife mitigation plan is not relevant as the
surrounding lands are now in a changed condition. See the above partial list of projects.
H. Conclusion.
For all of the reasons stated above, Ms. Gould respectfully requests the Board to affirm the
Hearings Officer's decision.
Very truly yours,
PAUL DEWEY
PD:ao
Enclosure
cc: Client
David Petersen
1
1
1
1
1
1
1
1
1
1
i
i
1
1
i
1
1
1
IN THE COURT OF APPEALS OF THE STATE OF OREGON
ANNUNZIATA GOULD,
Respondent/Cross-Petitioner,
v.
DESCHUTES COUNTY and KAMERON DELASHMUTT,
Respondents/Cross-Respondents,
and
LOYAL LAND, LLC,
Petitioner/Cross-Respondent.
Land Use Board of Appeals No. 2012-042
CA No. A153486
OPENING BRIEF, EXCERPT OF RECORD, AND
APPENDIX OF PETITIONER/CROSS-RESPONDENT
LOYAL LAND, LLC
Judicial Review of a Final Opinion and Order
of the Land Use Board of Appeals
EXPEDITED PROCEEDING UNDER ORS 197.850 AND ORS 197.855
Steven L. Pfeiffer, OSB No. 814533
spfeiffer@perkinscoie.com
Seth J. King, OSB No. 071384
sking@perkinscoie.com
Perkins Coie LLP
1120 NW Couch Street 10th Floor
Portland, Oregon 97209-4128
Telephone No.: 503.727.2000
Attorneys for Petitioner/Cross-
Respondent Loyal Land, LLC
76878-0003/LEGAL25 812093.1
February 2013
Laurie E. Craghead, OSB No. 922663
laurie.craghead@deschutes.org
Assistant Legal Counsel
Deschutes County Counsel
1300 NW Wall Street, Suite 205
Bend, OR 97701-1960
Telephone No.: 541.388.6623
Attorney for Respondent/Cross-
Respondent Deschutes County
Paul D. Dewey, OSB No. 781786
pdewey@bendcable.com
Attorney at Law
1539 Vicksburg Avenue
Bend, OR 97701
Telephone No.: 541.317.1993
Attorney for Respondent/Cross-Petitioner
Annuriziata Gould
76878-0003/LEGAL258120911
David J. Petersen, OSB No. 034220
david.petersen@tonkon.com
Tonkon Torp LLP
888 SW Fifth Avenue, Suite 1600
Portland, OR 97204
Telephone No.: 503.802.2054
Attorney for Respondent/Cross-Respondent
Kameron DeLashmutt
i
TABLE OF CONTENTS
Page
STATEMENT OF THE CASE 1
A. Nature of the action and relief sought 1
B. Nature of the judgment 1
C. Basis of appellate jurisdiction 1
D. Timeliness of petition 2
E. Nature and jurisdictional basis of LUBA action 2
F. Question presented on appeal 2
G. Summary of Argument 2
H. Statement of Material Facts 3
1. Background 3
2. County Proceedings 5
3. The LUBA Order 5
II. FIRST ASSIGNMENT OF ERROR: THE LUBA ORDER IS
UNLAWFUL IN SUBSTANCE AND SHOULD BE REVERSED
AND REMANDED UNDER ORS 197.850(9)(A) BECAUSE
LUBA SUBSTITUTED ITS OWN, ERRONEOUS
IN I ERPRETATION OF THE COUNTY'S LAND USE
REGULATIONS FOR THE COUNTY HEARINGS OFFICER'S
INTERPRETATION OF THOSE REGULATIONS, WHEN THE
HEARINGS OFFICER'S INTERPRETATION WAS CORRECT
AS A MATTER OF LAW 6
A. Preservation of Error 6
B. Standard of Review 7
C. Argument 7
1. This court must determine, without any deference to
LUBA, whether the County's interpretation was
correct as a matter of law 8
76878-0003/LEGA L25812093.1
11
TABLE OF CONTENTS
(continued)
Page
2. The Hearings Officer's interpretation of DCC
22.36.020.A.3 is correct as a matter of law because it
is supported by the text and context of the DCC 9
a. Oregon law requires a three-step analysis in
determining legislative intent 10
b. The Hearings Officer's conclusion is consistent
with these established principles of statutory
construction 11
3. LUBA's determination that DCC 22.36.020.A.3
requires that "all" CMP conditions be substantially
exercised is not supported by the text and context of
the DCC 15
a. LUBA's interpretation of DCC 22.36.020.A.3
is inconsistent with the plain language of the
DCC 15
b. Unlike the Hearings Officer's interpretation,
LUBA's interpretation is not supported by the
context of the DCC 18
c. LUBA erred in concluding that the County
intended for Loyal to initiate all three
destination resort approvals within two years in
order to initiate the CMP approval 19
III. CONCLUSION 23
76878-0003/LEGAL25 8 1 2091 1
1
r
r
■
e
a
a
■
11
■
w
11
■
A
11
TABLE OF AUTHORITIES
Cases
Page
Gould v. Deschutes County, Or LUBA (LUBA No. 2012-
042, January 8, 2013)
passim
Gould v. Deschutes County, 233 Or App 623, 227 P3d 758 (2010) 9
Hale v. Klemp, 220 Or App 27, 184 P3d 1185 (2008) 18
ODOT v. Stallcup, 341 Or 93, 138 P3d 9 (2006) 10
PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143
(1993) 10, 11
Setniker v. Polk County, 244 Or App 618, 260 P3d 800 (2011) 10
Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010) 8
State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) 10, 11
State v. Trenary, 316 Or 172, 850 P2d 356 (1993) 18
Stull v. Hoke, 326 Or 72, 948 P2d 722 (1997) 10
Tonquin Holdings, LLC v. Clackamas County, 247 Or App 719,
270 P3d 397 (2012)
8
Vsetecka v. Safeway Stores, Inc., 337 Or 502, 98 P3d 1116 (2004) 18
Western Land & Cattle, Inc. v. Umatilla County, 230 Or App 202,
214 P3d 68 (2009) 16
Statutes
ORS 174.010 17
ORS 197.651(10)(a) 7
ORS 197.651(3) 2
1111 ORS 197.825 2
ORS 197.850(1) 2
ORS 197.850(3)(a)
ORS 197.850(9)(a)................................................. 8
1
1
76878-0003/LEGAL25812093. I
iv
TABLE OF AUTHORITIES
(continued)
Other Authorities
Page
DCC 18.113.040 11
DCC 22.36.010.B.1 22
DCC 22.36.010.E 21
DCC 22.36.020.A 20, 21, 22
DCC 22.36.020.A.3 passim
DCC 22.40.010.A.3 20
76878-0003/LEGA L258I2093.1
1
1
1
1
1
1
1
1
1
I. STATEMENT OF THE CASE
A. Nature of the action and relief sought
This is an appeal of a final Land Use Board of Appeals ("LUBA") order
remanding the decision of respondent/cross-respondent Deschutes County
("County") to approve the declaratory ruling request made by petitioner/cross-
respondent Loyal Land, LLC ("Loyal") that the Thornburgh Destination Resort
Conceptual Master Plan ("CMP") had been timely initiated. Loyal seeks an
order reversing and remanding the single assignment of error sustained by
LUBA.
B. Nature of the judgment
The judgment to be reviewed is LUBA's final opinion and order in Gould
v. Deschutes County, Or LUBA (LUBA No. 2012-042, January 8, 2013)
("Gould IV" or "LUBA Order"). Rec.1 23-52; ER -1 through ER -30.
C. Basis of appellate jurisdiction
The court has jurisdiction to review eview final LUBA orders.
ORS 197.850(3)(a). Loyal has standing to participate in these proceedings
11
1
1
1
1
1 Citations to the record of proceedings before the County are designated
"County Rec.," followed by the relevant page number. Citations to the
appellate record prepared by LUBA are designated "Rec.," followed by the
relevant page number.
76878-0003/LEGAL2 5 812093.1
2
under ORS 197.850(1) because Loyal was a party to the LUBA appeal that
resulted in the final opinion and order for which relief is sought.
D. Timeliness of petition
The LUBA Order is dated January 8, 2013. Rec. 23; ER -1. Loyal filed
its Petition for Judicial Review via certified mail, return receipt requested, on
January 29, 2013, within 21 days after the date that LUBA delivered or mailed
the LUBA Order. Loyal filed a Certificate of Filing by Certified Mail with
proof of mailing on January 31, 2013. Therefore, Loyal's Petition for Judicial
Review was timely filed with the Court of Appeals under ORS 197.850(3)(a).
E. Nature and jurisdictional basis of LUBA action
LUBA had jurisdiction to review the County's final land use decision at
issue in this matter pursuant to ORS 197.825. Rec. 75, 107.
F. Question presented on appeal
Is the LUBA Order unlawful in substance because LURA substituted its
own, erroneous interpretation of County land use regulations for the County
Hearings Officer's interpretation of those regulations, when the Hearings
Officer's interpretation was correct as a matter of law?
G. Summary of Argument
The LUBA Order is unlawful in substance because LUBA substituted its
own, erroneous interpretation of County land use regulations for the County
76878-0003/LEGAL25812093.1
1
111
Hearings Officer's interpretation of those regulations when the Hearings
Officer's interpretation was correct as a matter of law. First, the Hearings
Officer's interpretation was correct as a matter of law because it was supported
by the plain text and context of the Deschutes County Code ("DCC"). Second,
® LUBA's conclusion to the contrary improperly rewrote DCC 22.36.020.A.3,
NIignored relevant context of the DCC, and incorrectly defined the scope of the
request by concluding that in order to initiate the CMP approval, Loyal had to
initiate the entire destination resort use.
r
e
r
11
e
1
1
1
H. Statement of Material Facts
-1. Background
Loyal adopts the relevant portion of the summary of facts set forth in the
LUBA Order, which reads as follows:
"This appeal is the latest in a number of appeals
conceming the Thornburgh Destination Resort to be
sited on Exclusive Farm Use (EFU)-zoned land in
Deschutes County. As proposed, the Thornburgh
Destination Resort would occupy approximately
1,970 acres. Thornburgh Resort Company, which is
owned by Kameron and Lisa DeLashmutt, was the
applicant for conceptual master plan (CMP) approval
and for final master plan (FMP) approval for the
Thornburgh Destination Resort. Thornburgh Resort
Company was the original owner of all but 160 of
those 1,970 acres. The other 160 acres were and still
are owned by Agnes DeLashmutt (who is Kameron
DeLashmutt's mother). [Footnote omitted.] The
county's initial decision granting CMP approval was
remanded by LUBA. The county subsequently issued
76878-0003/LEGAL25812093.1
3
4
its second decision granting CMP approval on April
15, 2008. The county issued its first and only
decision granting FMP approval on October 8, 2008.
"The land use litigation concerning the CMP approval
came to an end on December 9, 2009, when the Court
of Appeals issued its appellate judgment in Gould v.
Deschutes County, 227 Or App 601, 206 P3d 1106
(2009). As a result of the Court of Appeals' decision,
the county's April 15, 2008 decision granting CMP
approval for the Thornburgh Destination Resort was
affirmed. The land use litigation concerning the FMP
approval came to an end on February 24, 2010, when
the Court of Appeals affirmed LUBA's September 9,
2009 decision that remanded the county's FMP
decision. The county has taken no further action on
the FMP decision following LUBA's remand.
"On September 4, 2011, through a foreclosure action,
Loyal Land, LLC (Loyal Land) took title to the seven
lots formerly owned by Thornburgh Resort Company,
but Loyal Land did not take title to the 160 acre lot
that is still owned by Agnes DeLashmutt. Under state
and local law, a permit like the county's April 15,
2008 CMP decision is `void' two years after the
permit decision becomes final unless the use
authorized by the permit is `initiated within that * * *
period.' OAR 660-033-0140(1); Deschutes County
Code (DCC) 22.36.010(B)(1). In Deschutes County,
a declaratory ruling may be requested for, among
other things, `[d]etermining whether an approval has
been initiated.' DCC 22.40.010(A)(3)."
Gould IV, Or LUBA at (slip op. 2-3); ER -2 through ER -3.
76878-0003/LE6AL25812093.1
5
2. County Proceedings
On November 1, 2011, Loyal submitted an application to the County
requesting a declaratory ruling that the Thornburgh Destination Resort CMP
had been timely initiated, i.e., that the CMP was vested and had not expired
("Application"). County Rec. 544-768. County staff recommended approval of
the Application. County Rec. 92-98. The County Hearings Officer approved
the Application. County Rec. 143-174. Respondent/cross-petitioner
Annunziata Gould ("Gould") appealed the Hearings Officer's decision to the
County Board of Commissioners, which declined to hear the matter. County
Rec. 2.
3. The LUBA Order
Gould then appealed the County's decision to LUBA. Rec. 216-234.
Gould raised five (5) assignments of error before LUBA. Rec. 102-121.
LUBA denied Gould's first, second, third, and portions of the fourth assignment
of error. Gould IV, Or LUBA at (slip op. at 4-24); ER -4 through ER -24.
LUBA sustained the second subassignment of the fourth assignment of error, in
part, and remanded the decision back to the County for reconsideration of this
issue. Gould IV, Or LUBA at (slip op. at 16-24); ER -16 through ER -24.
Specifically, LUBA determined that the Hearings Officer misconstrued
76878-0003/LEGA L25812093.1
6
applicable law in concluding that she was not required to consider whether "all"
conditions of the CMP had been initiated. Id.
In light of its conclusion on the fourth assignment of error, LUBA
declined to address the fifth assignment of error. Gould IV, Or LUBA at
(slip op. at 24-25); ER -24 through ER -25.
This appeal followed, as did a subsequent cross -petition filed by Gould.
II. FIRST ASSIGNMENT OF ERROR:
The LUBA Order is unlawful in substance and should be reversed and
remanded under ORS 197.850(9)(a) because LUBA substituted its own,
erroneous interpretation of the County's land use regulations for the
County Hearings Officer's interpretation of those regulations, when the
Hearings Officer's interpretation was correct as a matter of law.
A. Preservation of Error
In the second subassignment of her fourth assignment of error in her
LUBA Petition for Review, Gould contended that the Hearings Officer erred
because she failed to adequately address all CMP conditions of approval in
determining whether or not "the conditions of a permit or approval have been
substantially exercised." Rec. 115-117. Loyal responded to this assignment of
error in its LUBA Response Brief:
"2. RESPONSE TO ARGUMENT NO. 2: The
Hearings Officer correctly determined that the CMP
conditions were `substantially exercised.'
"a. Contrary to Petitioner's contention, the
Hearings Officer adequately addressed all CMP
76878-0003/LEG AL25812093.1
7
conditions of approval in determining whether or not
they were `substantially exercised.'
Rec. 85. Loyal presented additional argument to LUBA in support of its
position. Rec. 85-87. LUBA sustained this aspect of Gould's assignment of
error. Gould IV, Or LUBA at _ (slip op. at 16-24); ER -16 through ER -24.
B. Standard of Review
This court may reverse or remand the LUBA Order if it is unlawful in
substance. ORS 197.850(9)(a).
C. Argument
The LUBA Order is unlawful in substance because LUBA substituted its
own, erroneous interpretation of the DCC for the Hearings Officer's
determination, which was correct as a matter of law. Specifically, the Hearings
Officer correctly interpreted DCC 22.36.020.A.3 to conclude that the relevant
conditions of approval that must be analyzed for purposes of the CMP vesting
analysis were those that must be complied with before approval of the Final
Master Plan ("FMP"). Her conclusion is consistent with the plain text and
context of the DCC, including the three-step approval process for destination
resorts in the County. LUBA's conclusion to the contrary improperly rewrote
DCC 22.36.020.A.3, ignored relevant context in the DCC, and incorrectly
defined the scope of the request by concluding that in order to initiate the CMP
approval, Loyal had to initiate the entire destination resort use. Accordingly,
76878-0003/LEGAL258 12093.1
this court should reverse and remand the LUBA Order under
ORS 197.850(9)(a).
1. This court must determine, without any deference to LUBA,
whether the County's interpretation was correct as a matter of
law.
A LUBA order is unlawful in substance if, in contravention of applicable
law, LUBA substitutes its own interpretation of a local government's land use
regulations for a local government hearings officer's interpretation of those
regulations when the hearings officer's interpretation was correct as a matter of
law. Tonquin Holdings, LLC v. Clackamas County, 247 Or App 719, 722-723,
270 P3d 397 (2012). In order to determine whether or not LUBA has ignored
or misapplied the relevant review standard, this court must decide for itself
whether the local government's interpretation is correct as a matter of law. See
generally Siporen v. City of Medford, 349 Or 247, 243 P3d 776 (2010) (setting
forth the reviewing court's general methodology for assessing whether a LUBA
decision on an appeal of a local government interpretation is unlawful in
substance).2 In so doing, this court gives no deference to LUBA's
2 Loyal acknowledges that the standard at issue in the present case ("correct as
a matter of law") differs from the deferential standard at issue in Siporen.
Loyal does not contend that the Siporen standard applies in the present case;
rather, Loyal contends that the Siporen methodology for assessing whether
LUBA has violated a standard of reviewing the local government decision does
apply.
76878-0003/LEGAL25812093.1
1
•
11
interpretation of the County's land use regulations. Gould v. Deschutes County,
233 Or App 623, 227 P3d 758 (2010).
2. The Hearings Officer's interpretation of DCC 22.36.020.A.3 is
correct as a matter of law because it is supported by the text
and context of the DCC.
In her decision, the Hearings Officer had to construe the meaning of
DCC 22.36.020.A.3, as applied to the Application. This subsection provides
■ the applicable measure for determining whether or not the CMP is vested and
requires the County to determine that the applicant has substantially exercised
conditions of the approval:
"Where construction is not required bythe e a pproval,
the conditions of a permit or approval have been
substantially exercised and any failure to fully comply
with the conditions is not the fault of the applicant."
DCC 22.36.020.A.3 (Emphasis supplied.); App -3. Inapplying
pP t Ius provision to
the Application, the Hearings Officer had to deterniine the County's intent in
including the phrase "the conditions of a permit or approval," within the context
of a proposed destination resort. For the reasons explained below, she correctly
concluded that the term "approval" in this subsection is not synonymous with
the term "use" when the development at issue is a destination resort.
As a
result, she correctly concluded that the relevant conditions for purposes of
determining whether the CMP "approval" had been initiated were those
w
w
76878-0003/LEGAL25812093.1
10
conditions that were required to be satisfied before obtaining the next
"approval" (FMP) necessary to initiate the "use."
a. Oregon law requires a three-step analysis in determining
legislative intent.
In order to determine the meaning of an ambiguous term in a local
ordinance, a court must apply the interpretive methodology prescribed in PGE
v. Bureau of Labor and Industries, 317 Or 606, 610-612, 859 P2d 1143 (1993),
as modified by State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).
Setniker v. Polk County, 244 Or App 618, 260 P3d 800 (2011). Under
PGE/Gaines, the fundamental task in interpreting an ordinance is determining
legislative intent. PGE, 317 Or at 610. This inquiry proceeds through three
steps. Id.
First, there must be an examination of the text and context of the
ordinance in question, including any related code provisions. Id. For purposes
of construing a local law, the context in which the legislature used a term
includes other relevant provision of the same law and other related laws.
ODOT v. Stallcup, 341 Or 93, 138 P3d 9 (2006). If the first step of the analysis
resolves the inquiry, there is no need to proceed to the remaining steps. Stull v.
Hoke, 326 Or 72, 77, 948 P2d 722 (1997).
76878-0003/LEGAL25812093.1
11
The second step of statutory interpretation involves review of any
proffered legislative history. PGE, 317 Or at 611-612. It is no longer necessary
that there be an ambiguity in the first step of the analysis before reaching the
second step. State v. Gaines, 346 Or 160, 171-172, 206 P3d 1042 (2009).
Finally, if there is ambiguity after the first two steps, the third step involves
resorting to general maxims of statutory construction. PGE, 317 Or at 612.
b. The Hearings Officer's conclusion is consistent with
these established principles of statutory construction.
The Hearings Officer's determination of the County Board's legislative
intent is consistent with the PGE/Gaines doctrine because it is supported by the
plain text and context of the DCC. First, the Hearings Officer's decision is
supported by the plain text of DCC 22.36.020.A.3 because the Hearings Officer
properly considered whether the "conditions" of the "approval" had been
"substantially exercised." App -3.
In so doing, she properly recognized the distinction between the approval
at issue (the CMP) and the ultimate use of the Property (the destination resort).
In fact, development of a destination resort use in the County requires an
applicant to obtain at least three different and sequential approvals: (1) CMP;
(2) FMP; and (3) Subdivision/Site Plan Review. DCC 18.113.040; App -1.
Each approval is dependent upon and flows from the prior approval(s), and an
applicant must obtain all approvals in order to develop the destination resort
76878-0003/LEGAL25812093.1
12
use. Id. As such, development of a destination resort is readily distinguishable
from development of a traditional conditional use, where only a single approval
is required, and initiating the approval is effectively tantamount to initiating the
use.
In her analysis, the Hearings Officer first observed that the 38 conditions
of the CMP approval specified different deadlines for measuring compliance:
"Consistent with the DR process context, the conditions
of approval in the board's decisions specify different
times for compliance — e.g., some before FMP approval,
some before specific development approval, and -some at
all times * * * *."
County Rec. 79. The Hearings Officer then painstakingly categorized each
condition based upon when compliance was measured. County Rec. 79-81.
Her results are summarized as follows:
■ Nine conditions/sub-conditions had to be met prior to FMP
approval
• Six conditions/sub-conditions had to be met on or with FMP
submission
• One condition was a condition of FMP approval
■ Two conditions had to be met before or with the first phase of
development
■ Two conditions had to be met before final plat approval
■ Three conditions/sub-conditions had to be met with or on final plat
approval
• Two conditions had to be met prior to or with construction
• One condition had to be met with each development phase
■ Nineteen conditions were ongoing in nature
76878-0003/LEGAL25812093.1
13
Id. As these results indicate, several conditions were of a nature that
compliance could not be determined or even pursued until late in the
development process or else were of such a nature that compliance was ongoing
and thus applied to operation of the destination resort itself. In short, for many
of the conditions, it was not reasonable or possible to assess whether they had
been "substantially exercised" as part of the CMP for purposes of
DCC 22.36.020.A.3.
However, the Hearings Officer's analysis did not end there. Against this
backdrop, the Hearings Officer further considered the context of DCC
22.36.020.A.3, as applied to the three-step, serial approval process for
destination resorts, concluding that each step of the process required
compliance with conditions of approval imposed on the previous step:
"Section 18.113.050 states the CMP provides the
`framework' for development of the destination resort.
Section 18.113.040(B) states that in order to develop the
destination resort the applicant must submit and obtain
approval for the FMP which incorporates all
requirements of the County approval for the CMP' and
demonstrates compliance with 'all conditions of approval
of the conditional use permit.' Section 18.113.040(C)
states 'each element or development phase of the
destination resort must receive additional approval
through the required site plan approval or subdivision
criteria,' and must be in compliance with the FMP."
County Rec. 79. Based upon the foregoing analysis and specific references to
other DCC provisions, the Hearings Officer reasonably concluded that, for
purposes of DCC 22.36.020.A.3, she should limit her analysis to those
76878-0003/LEG A L25812093.1
14
conditions that were considered for purposes of the County's determination that
the FMP was consistent with the CMP conditions:
"The Hearings Officer finds the relevant conditions of
approval for the subject initiation of use declaratory
ruling are limited to those with which the CMP required
compliance before FMP approval. I find those
conditions include Conditions of Approval 3, 8, 10,
14(B) 15, 19, 22, 30, 36 (original), and 37. However, I
note that the applicant states, and Hearings Officer
Briggs found in her decision approving the FMP, that
Conditions of Approval 3, 8, 9, 11, 13, 14A, 14B 15, 24,
30, and 37, have been met. For this reason, I will review
the combined 16 conditions."
County Rec. 82. In sum, this is not a circumstance where the Hearings Officer
simply ignored certain conditions or failed to explain her reasoning in not
specifically evaluating whether some were "substantially exercised." Rather,
the Hearings Officer conducted a reasoned analysis of the language of the
conditions themselves and their context in the unique, multi -approval
destination resort development process as set forth in the DCC. Nothing in the
DCC precluded her approach, and as explained above, the context supported it.
Further, the County arguably adopted the open-ended language in
DCC 22.36.020.A.3 to allow for flexible application to the variety of approvals
which could be the subject of a declaratory ruling request. Accordingly, the
Hearings Officer's interpretation of DCC 22.36.020.A.3, as applied, was
supported by the text and context of the DCC. As such, it was correct as a
matter of law. For this reason alone, this court should find that LUBA's
76878-0003/LEGAL258120911
1
1
1
1
1
1
1
1
i
1
1
1
1
i
1
e
M
4
4
A
15
conclusion to the contrary was unlawful in substance and should be reversed
and remanded.
3. LUBA's determination that DCC 22.36.020.A.3 requires that
"all" CMP conditions be substantially exercised is not
supported by the text and context of the DCC.
Despite the Hearings Officer's well -reasoned analysis of the text and
context of the DCC, as applied, LUBA substituted its own, erroneous
interpretation of DCC 22.36.020.A.3 by concluding that the Hearings Officer
was required to determine whether "all" CMP conditions had been substantially
exercised. LUBA's interpretation improperly added language to DCC
22.36.020.A.3, ignored relevant context of the DCC, and incorrectly defined the
scope of the request by concluding that in order to initiate the CMP approval,
Loyal had to initiate the entire destination resort use. As such, the LUBA Order
is unlawful in substance and should be reversed and remanded.
a. LUBA's interpretation of DCC 22.36.020.A.3 is
inconsistent with the plain language of the DCC.
LUBA concluded that the Hearings Officer should have considered
whether "all" CMP conditions were substantially exercised. However'
LUBA s
interpretation of the Board's legislative intent is not supported by the plain
language of the DCC. In fact, LUBA had to rewrite the only provision it cited
in support of its conclusion. Specifically, LUBA both added to and deleted
76878-0003/LEGA L25812093. 1
16
from DCC 22.36.020.A.3 in concluding that all CMP conditions must be
substantially exercised in order to vest the permit:
"Where construction is not required by the approval,
[the-} all conditions of a permit or approval have been
substantially exercised and any failure to fully comply
with the conditions is not the fault of the applicant."
(Bold and strikethrough added.)
LUBA's action contravenes ORS 174.010, which limits a reviewing
court to construing the language of a provision as written. Although ORS
174.010 pertains to the "construction of a statute," this court uses it as well in
the interpretation of local ordinances. Western Land & Cattle, Inc. v. Umatilla
County, 230 Or App 202, 214 P3d 68 (2009). Ironically, LUBA reached this
conclusion after rejecting the Hearings Officer's interpretation on the grounds
that she improperly rewrote DCC 22.36.020.A.3:
"The hearings officer essentially rewrote DCC
22.36.020(A)(3), to add the bold language set out
below:
"`Where construction is not required by the approval,
the conditions of a permit or approval that must be
satisfied before FMP approval have been
substantially exercised and any failure to fully comply
with the conditions is not the fault of the applicant.'
"Under ORS 174.010, the hearings officer is not
entitled to add and subtract language from DCC
22.36.020.A.3."
76878-0003/LEGA L258120911
1
1
1
1
1
1
1
1
1
1
17
Gould IV, Or LUBA at (slip op. at 19-20) (Bold in original); ER -19
through ER -20. Construing these aspects of LUBA's analysis together, the
LUBA Order appears to conclude that ORS 174.010 is applicable to the
Hearings Officer but not LUBA. In fact, ORS 174.010 equally applies to
LUBA and undeiuiines LUBA's rewriting of DCC 22.36.020.A.3. LUBA did
not cite to or discuss any other DCC text that supported its conclusion.
Therefore, LUBA's conclusion that the Board intended for the Hearings Officer
to evaluate "all" conditions of CMP approval is not supported by the plain text
of the DCC and should be reversed and remanded.
Further, LUBA's conclusion that the Hearings Officer improperly added
language to DCC 22.36.020.A.3 is incorrect because it is premised upon
LUBA's incorrect conclusion—refuted in subsection c. below—that the
"approval" in this provision means the entire destination resort "use." In fact,
because the Hearings Officer correctly concluded that the "approval" in this
context is the CMP, she correctly interpreted the term "conditions" to be those
conditions that were required to be satisfied before obtaining the next
"approval" (FMP) necessary to implement the "use" (destination resort).
76878-0003ILEGA1258120911
18
b. Unlike the Hearings Officer's interpretation, LUBA's
interpretation is not supported by the context of the
DCC.
Second, after the plain text did not fully resolve the question, the
Hearings Officer properly proceeded to evaluate the text of DCC 22.36.020.A.3
in context; however, LUBA did not. It is well-settled that when the plain text is
not dispositive, courts look to the statute's context to discern legislative intent.
State v. Trenary, 316 Or 172, 850 P2d 356 (1993). See also Vsetecka v.
Safeway Stores, Inc., 337 Or 502, 98 P3d 1116 (2004) (text should not be read
in isolation but must be considered in context); Hale v. Klemp, 220 Or App 27,
184 P3d 1185 (2008) (same).
In the present case, there is no indication that LUBA considered the
context of DCC 22.36.020.A.3, as applied to the Application, in rendering its
decision. In fact, at one point in quoting the Hearings Officer's findings,
LUBA specifically redacted the contextual discussion. Gould IV, Or LUBA
at (slip op. at 17); ER -17. By contrast, and as explained above, the Hearings
Officer properly considered the context of DCC 22.36.020.A.3, as applied,
within the three-step, serial approval process for destination resorts, concluding
that each step of the approval process required compliance with conditions of
approval imposed on the previous step and that the "approval" for purposes of
DCC 22.36.020.A.3 was the CMP, not the broader destination resort "use."
76878-0003/LEGA L25812093.1
1
1
1
1
1
1
1
1
1
1
1
1
1
e
1
1
e
M
4
4
1
M
19
Thus, unlike the Hearings Officer, LUBA failed to assess the relevant
context, as applied to the Application. • Therefore, LUBA's interpretation is
unlawful in substance.
c. LUBA erred in concluding that the County intended for
Loyal to initiate all three destination resort approvals
within two years in order to initiate the CMP approval.
Third, LUBA erred in concluding that the DCC effectively requires
Loyal to initiate all three approvals of the destination resort within two years in
order to initiate the CMP approval. LUBA's conclusion is unduly harsh and
misconstrues multiple provisions of the DCC. On this issue, LUBA concluded
as follows:
"However, whether it was intentional or unintentional,
by imposing conditions of approval that would require
the applicant to secure additional land use permits, the
city [sic] effectively required the applicant to secure
those additional permits within the two-year period
imposed by DCC 22.36.010(B)(1) to avoid having the
CMP permit become void. That result may be harsh
in this case, but it cannot be avoided by interpreting
DCC 22.36.020(A)(3) to say something that it does
not say."
Gould IV, Or LUBA at (slip op. at 20); ER -20. The problem with
LUBA's analysis is that it is LUBA, not the Hearings Officer, that is
interpreting DCC 22.36.020.A.3 to say something that it does not say.
Specifically, LUBA's conclusion on this issue is premised upon its
determination that the question before the Hearings Officer was whether the
76878-0003/LEGAL25812093.1
20
ultimate use of the Property—the destination resort was implemented within
two years. In fact, this is not what DCC 22.36.020.A.3 requires. Rather, as
correctly interpreted by the Hearings Officer, this code section is concerned
with initiation of the approval:
"For purposes of DCC 22.36.020, development action
undertaken under a land use approval described in
DCC 22.36.010, has been `initiated' if it is determined
* * * ,,
DCC 22.36.020.A. (Emphasis supplied.); App -3. In fact, other than the title, no
aspect of DCC 22.36.020.A.3 refers to initiating a use. Thus, as applied to the
present case, the only question before the Hearings Officer (and LUBA, on this
appeal issue) under DCC 22.36.020.A.3 was whether Loyal had initiated the
specific approval (the CMP), not whether Loyal had initiated the use (the
destination resort), which, as noted, requires multiple, serial, and independent
approvals.
There are additional contextual clues in the DCC that refute LUBA's
interpretation. For example, DCC 22.40.010.A.3 provides that the declaratory
ruling process is available for "[d]etermining whether an approval has been
initiated," but this subsection does not provide that it is available for
determining whether a "use" has been initiated. App -4.
76878-0003/LEGAL258120911
1
1
1
1
■
■
A
4
w
R
A
1
1
1
1
1
1
21
Additionally, the DCC text is telling in what it does not expressly state.
For example, although DCC 22.36.010.E tolls the approval period for a land use
permit during the pendency of any appeals, the tolling ends when the appeal of
that approval is resolved. App -3. The provision does not appear to allow
tolling of one destination resort approval (e.g., CMP) while a later approval
(e.g., FMP) is on appeal, even though the appeal of the FMP would, under
LUBA's interpretation, delay the initiation of not only the FMP but also the
CMP. In short, in order to successfully navigate the CMP initiation process, as
interpreted by LUBA, Loyal would have to avoid appeals of any of the
destination resort approvals. Thus, LUBA effectively would allow the vesting
of a CMP to turn on whether there is any opposition to the FMP, Subdivision
and Site Plan Review. Surely, the County could not have intended that a
party's ability to vest its land use entitlements would be so easily subject to
sabotage by a third party.
Stated another way, if the County had truly intended for an applicant to
proceed through all three steps of the destination resort process within two
years in order to vest only one step of that process, the County would have
written the DCC to provide for tolling of the approval period when any single
76878-0003/LE0AL25812093.1
22
step of the process was appealed. However, the County did not do so. Thus,
LUBA erred in construing the DCC to the contrary.3
Finally, LUBA misconstrued the only provision cited in support of its
interpretation that the relevant question was whether Loyal had initiated the
entire destination resort "use." That provision, DCC 22.36.010.B.1, refers to a
"use approved in the permit;" however, it is expressly superseded by other
provisions of the DCC:
"Except as otherwise provided under DCC 22.36:010
or under applicable zoning ordinance provisions, a
land use permit is void two years after the date the
discretionary decision becomes final if the use
approved in the permit is not initiated within that time
period."
App -2. DCC 22.36.020.A is one such "zoning ordinance provision," and it
measures initiation by reference to the "approval," not the "use." Thus, by the
plain text of DCC 22.36.010.B.1, the language cited by LUBA is not applicable
3 Further, LUBA's conclusion that the Hearings Officer misread DCC
22.36.020.A in concluding that subsection (3) applied to the Application rather
than subsection (2) is grounded in the same erroneous conclusion that the
relevant question is whether Loyal initiated the destination resort "use."
Specifically, it fails to acknowledge that while a few of the CMP conditions
contemplate construction as part of the use, that construction is not specifically
tied to the CMP approval. Rather, it is subject to obtaining the remaining
necessary approvals for the destination resort use. In any event, LUBA's
analysis and conclusion on this point is dictum because, as acknowledged by
LUBA, no party assigned error to the Hearings Officer's conclusion that DCC
22.36.020.A.3 applied to the Application.
76878-0003/LEGAL25812093.1
1
1
1
1
1
1
1
1
23
in the present case. LUBA did not acknowledge or address this inconsistency
in its analysis. Therefore, the LUBA Order is unlawful in substance.
In sum, the Hearings Officer's interpretation of DCC 22.36.020.A.3 is
supported by the text of the DCC, as considered in the applicable context.
Because the LUBA Order substitutes its own, erroneous interpretation of the
DCC in place of the Hearings Officer's well -reasoned conclusion, it is unlawful
in substance and should be reversed and remanded.
This court should sustain Loyal's assignment of error.
III. CONCLUSION
For the foregoing reasons, the Court of Appeals should: (1) sustain
Loyal's assignment of error raised above; and (2) reverse and remand these
aspects of the LUBA Order with direction to LUBA to enter an ordering
affirming the Hearings Officer's decision.
DATED: February 19, 2013
PERKINS COIE LLP
By:
'Steven L. Pfeiffer, OSB No. 814533
Seth J. King, OSB No. 071384
Attorneys for Petitioner/Cross-Respondent
Loyal Land, LLC
76878-0003/LEGAL25812093.1
Bureau of Land Management • Forest Service
Prineville District Office • 3050 NE Third Street • Prineville, Oregon 97754 • http://www.blm.gov/or/districts/prineville
Deschutes National Forest • 1001 SW Emkay Drive • Bend, Oregon 97702 • http://www.fs/fed/us/r6/centraloregon
Ochoco National Forest • 3160 NE Third Street. • Prineville, Oregon 97754 • http:/?wviv.fslfed/us/r6/centraloregon
News and Information
For Immediate Release
April 27, 2010
Contacts: Virginia Gibbons
(541) 416-6647
Christina Lilienthal
(541)416-6889
Hazardous Fuels Reduction Efforts & Spring Prescribed Burning Season Has
Begun on Public Lands in Central Oregon
CENTRAL OREGON —Federal land management agencies have targeted approximately 29,000
acres of federal land for hazardous fuels reduction projects in a variety of locations during the
spring and fall of 2010. The projects are located in four geographic divisions that comprise the 4.5
million -acres of federal land managed by the Deschutes & Ochoco National Forests and the
Prineville Bureau of Land Management.
Approximately 50% of the projects will be treated through mechanical methods such as thinning
and mowing and the remaining 50% are "management -ignited" (prescribed fire or pile burning).
The prescribed burns are conducted during the spring and fall seasons on an annual basis,
typically running from April through May, weather permitting. This year, the burning season
started later than usual due to wet weather conditions.
There is recognition among land managers that treating hazardous fuels with prescribed burning
can be an annoyance to the recreating public and impact people who are sensitive to smoke.
"We understand that our prescribed burn treatments sometimes impact the public when smoke
lingers in areas longer than we'd like it to. We make every effort to mitigate those impacts by
igniting in weather conditions that allow for the best possible smoke dispersal," said Fire Staff
Officer Chris Hoff.
A prescribed fire is one that is intentionally ignited to meet specific land management objectives,
such as reintroducing the natural cycle of fire into the ecosystem, reducing hazardous fuels on
public lands and improving wildlife habitat. Land managers utilize prescribed fire as a tool to
improve forest and rangeland health and resiliency.
How and when a prescribed burn can be successfully conducted is influenced by many
conditions, such as type of vegetation, moisture levels of vegetation, topography, temperature,
wind speed and humidity at the time of ignition. Burn prescriptions are specific to very site-
specific weather conditions and fuels specialists must light bums during short windows of
opportunity. The objective that remains consistent every time a prescribed burn is ignited is
keeping firefighter and public safety the top priority.
11111 -more-
Bureau of Land Management • Forest Service
Prineville District Office • 3050 NE Third Street • Prineville, Oregon 97754 • http:/twww.blm.gov/or/districts/prineville
Deschutes National Forest • 1001 SW Emkay Drive • Bend, Oregon 97702 • http://www.fs/fed/us/r6/centraloregon
Ochoco National Forest • 3160 NE Third Street • Prineville, Oregon 97754 • http://www.fsged/us/r6/centraloregon
2
Land management agencies conduct their planned prescribed burns in cooperation with the Oregon
Department of Forestry (ODF) Smoke Management Program. If smoke generated by a prescribed
burn exceeds air quality standards, burning operations may be discontinued. The ODF Smoke
Management Program monitors burning activities on state, federal and private forest lands.
When burning is in progress, signs are posted along nearby roads. When smoke reduces visibility,
motorists are advised to reduce speeds, turn on headlights and proceed with caution. Hunters and
recreationists should avoid recently burned areas, as timber can weaken and fall and stump holes
will likely cause burns or injury if stepped in. The spring burning program generally ends in early
June and the fall burning program generally runs from September through November.
Maps showing the hazardous fuels reduction project areas in Central Oregon for spring & fall of
2010 are now available on the Deschutes & Ochoco National Forest website at
http://www.fs.fed.us/r6/centraloregon , the Central Oregon Interagency Dispatch Center website
at http://www.fs.fed.us/r6/centraloregon/fire/conditions/prescribed-fire-news.shtml and the
Prineville BLM website at http://wvwv.blm.gov/or/prineville
-end-
331A 3S IS3803
Central Oregon Asset Management Projects
Department of State Lands (DSL)
May 2010
DSL -Owned Land
Stevens Road Tract (Section 11) — Deschutes County
• 640 acres — 12 acres are currently within Bend city limits
• Master Plan adopted by State Land Board in June 2007
• Mixed-use development — 2,600 housing units; 40 percent multi -family; emphasis
on sustainable development
• City of Bend did not include the parcel in proposed UGB expansion; DSL still
advocating for inclusion as Bend appeals the DLCD recommendation
• Lava tube mapping complete; bat survey underway
• Old landfill site assessment began in fall 2008; site assessment completed
January 2010
• DEQ paid for a financial feasibility study for landfill cleanup based on DSL's
Master Plan and the site assessment; study to be completed by summer 2010
Ward Road — Deschutes County
• 40 acres undeveloped
• Three miles east of Stevens Road Tract
• Surrounded by rural -residential developed lands
• Proposed rural subdivision — in planning stages
- Five lots; 2 to 21/2 acres each
- 26 +1- acres reserved area — open space retained by DSL for possible future
development
• Deschutes County gave planning approval in 2010
Cline Buttes Parcels — Deschutes County
• Four parcels, 400 acres total
• 240 acres acquired from BLM in April 2008 (in -lieu selection)
• All acreage is leased to Thornburgh Resort, LLC
South Redmond Tract — Deschutes County
• 945 acres undeveloped
• Acquired from BLM in April 2007 (in -lieu selection)
• Adjacent to Deschutes County Fair and Expo Center and Juniper Golf Course
• Land Use and Management Plan adopted by Land Board in October 2008
- Large lot industrial emphasis
- Potential inclusion in UGB
- Land exchange with county initiated (up to 240 acres)
- Potential relocated, new Redmond Armory site; on-going discussions with
Oregon Military Department.
- 19th Street extension southward to Deschutes Junction
- Regional Economic Opportunities Analysis started in April 2010
Worksheet
Determination of NEPA Adequacy (DNA)
L. S Department of the Interior, Bureau of Land Management
A. Background
BLM Office: Prineville, OR NEPA Log #: DOI-BLM-OR-060-2011-050-DNA
Location: 6 miles east of Redmond, OR (T 15S R 12E Sec. 8, 9, 15, 22, 27)
Proposed Action Title: Eagle Crest Vegetation Treatment
Description of the Proposed Action and any applicable mitigation measures:
The proposed action is the thinning of the Eagle Crest units of the Cline Buttes project area
totaling 1231 acres. The thinning will include the cutting of juniper trees equal to and less than
14 inch (Unit 1A- 428 acres) and 16 inch (Unit 1B- 793 acres) diameter at breast height. Unit 1
C (10 acres) involves cutting all trees less than or equal to 10 feet tall and severing lower limbs
of trees taller than 10 feet. All old growth trees will be retained. The treatment of the slash from
the thinning will include some or all of the following methods; biomass removal, biofuel
removal, chipping, lop and scatter, and prescribed fire. The prescribed fire methods will include
pile burning, swamper burning, and jackpot burning. Additionally seeding of some areas will be
considered.
Mitigation measures from the Cline Buttes Recreation Area Plan and Environmental Assessment
DOI-BLM-OR-P060-2006-0014 as well as more detailed project design features include:
Recreation
• A travel management map will be created for each vegetation treatment plan.
o Temporary roads for vegetation removal would be located outside of proposed
trail corridors wherever feasible.
o No full size vehicle use would be allowed on designated non -motorized trails less
than 8 feet in width.
• Designated trails and proposed right of ways (ROW's) would be flagged in the field prior
to vegetation treatments to allow for retention of trees that would provide shade and or
protection to maintain the curvilinear nature of OHV trails.
Soil and Water Quality
• Trees that are cut should be felled away from all stream channels, including ephemeral
draws, unless explicitly prescribed to be included into the channel network.
• Equipment operations would be limited to slopes of less than 20 percent.
• Soil moisture conditions would be monitored and operations would be suspended before
Page 1
unacceptable limits of compaction or displacement occur.
• For ground-based yarding, main arterial trails (over 3 round-trip passes) would be
designated at a spacing of 100 feet or more apart.
• Soil impacts from operations (compaction, displacement) would be limited to less than 20
percent of the total acreage within the treatment unit.
• Previously disturbed areas would be used where available to establish landings.
• Areas within 300 to 600 feet of roads and other suitable travel routes would usually be
managed using the existing travel systems with wheeled or track vehicles. Areas farther
than 600 feet from an existing road may require use of temporary, primitive routes when
removing woody material from the site occurs. Improvements to temporary routes would
be limited to thinning of woody plants and movement of large rocks if needed for haul
vehicle passage (unless these routes are part of the final proposed road or trail system).
Travel by haul vehicles would be limited to designated routes which would be seeded,
when necessary, upon completion of the management action. Light maintenance of
existing roads may occur where necessary to allow haul vehicle use.
• Landings, temporary access routes, and primary skid trails would be closed, rehabilitated,
and/or disguised following use. Mounds and berms would be smoothed to the original
contour.
• Rehabilitation methods for access routes, trails and landings could include seeding,
scarification, and placing woody debris and/or boulders back onto the route.
• Rutted, rocky, and degraded portions of main access routes would be improved or
rerouted when needed for operations or if prescribed for long-term road network
improvements.
• Access roads would be maintained to the prescribed standard needed for operations, with
a final maintenance treatment at the conclusion of operations. Maintenance could include
such measures as adding fill to level the grade/facilitate drainage, blading, and dust
abatement.
Visual Resources
• All vegetation treatment design would identify existing and proposed ROWs and include
measures to partially screen built features (Roads, structures, utility lines) from view of
key observation points (KOP's) (red flagging). Design of vegetation management
projects will assess the change in contrast due to increased visibility of ROW's and
adjacent structures and mitigate where needed to meet or exceed VRM standards.
• Vegetation management actions will use BLM contrast rating methods and include
completion of visual resource management (VRM) Contrast Rating worksheets (form
8400-4) in project design. Treatments will be designed to mimic patterns found in the
characteristic landscape as well as to improve long distance scenic view opportunities.
• Vegetation management actions would incorporate seen area mapping from KOPs as a
tool to help locate actions that cause greater contrast such as landings, swamper burn
piles, machine piles, etc. in order to meet or exceed VRM standards.
• In locations where trails or ROWs are visible or potentially visible as part of a wide,
panoramic view, treatment design will consider locating treatment edges at or near these
Page 2
E,4 li, p>2
routes, to avoid routes bisecting cleared areas.
• Early in each treatment design process, BLM will identify and use the following in
designing all vegetation treatments:
o All proposed trails and who the intended user is for each trail
o Trail head locations (leave areas are flagged in lime green)
o Existing and proposed ROW's
o Additional or new KOP's
• Identification and possible flagging of existing and proposed trail and ROW routes prior
to vegetation management treatments would be done in order to ensure that sufficient
screening vegetation may be left to meet or exceed VRM standards.
• Burn piles, landings or other major features will not be located on existing or proposed
trail corridors. Stumps within 200 feet of proposed trails will be no higher than four
inches above ground level, uphill side. Cut faces of visible trees will be oriented away
from the trail.
• Leave adequate junipers along fence lines to avoid strong line and color contrast between
BLM and resort property, unless fuels can be treated simultaneously on BLM and
adjacent resort property.
Wildlife
• Nest and cavity trees will be retained from treatment.
• All snags will be retained from treatment unless decided otherwise by the IDT for
purposes of safety or fuel reduction.
• Identify additional leave trees (lime green flagging) to provide screening for wildlife.
Botany
• Seed with native or non-native seed, or combination.
Cultural
• Remove young trees up to and including 10' dbh from canal corridor (10 feet from center
for a total of 20 feet)
• Cultural has flagged (lime green flagging) trees greater than 10'dbh and less than 16' dbh
for retention for the protection of the Tumalo Irrigation Canal system located in Unit 1B
east of the SW Cline Butte Pit Road.
B. Land Use Plan Conformance
Land Use Plan Name: Upper Deschutes Resource Management Plan
Record of Decision- September 2005
The proposed action is in conformance with the applicable plan because it is specifically
provided for in the following land use plan decisions: In the wildland urban interface, live and
Page 3
laic_ 1p, �3
dead vegetation will be managed so that a wildland fire would burn with fire behavior where
firefighters can be safe and successful in suppression efforts under hot, dry summer weather
conditions. Treatments will be designed for human safety while still considering recreation
opportunities, wildlife habitat and corridors, visual quality, air and water quality, and public
access. (UDRMP pg. 62)
C. Identify applicable National Environmental Policy Act (NEPA) documents
and related documents that cover the proposed action
The following NEPA documents (EA, DEIS, FEIS) cover the proposed action:
• Cline Buttes Recreation Area Plan and Environmental Assessment (CBRAP EA)
September 2009
• Upper Deschutes Resource Area Plan Final Environmental Impact Statement
January 2005
D. NEPA Adequacy Criteria
1. Is the new proposed action a feature of, or essentially similar to, an alternative analyzed in the
existing NEPA document(s)? Is the project within the same analysis area, or if the project
location is different, are the geographic and resource conditions sufficiently similar to those
analyzed in the existing NEPA document(s)? If there are differences, can you explain why they
are not substantial?
• Yes- The proposed action is covered by alternative 2 of the CBRAP EA which is similar
to the Eagle Crest proposed action.
o "The proposed action is focused on achieving the overall vegetation objectives
identified in chapter 1 to reduce the possibility of fire in the WUI; restore old-
growth juniper woodlands; restore shrub -steppe plant communities; and restore
heavily disturbed areas. (CBRAP EA pg. 11)
o "The following types of actions would be implemented in order to reach the above
objectives.
• Cut young juniper
• Cut, crush or mow shrubs and trees
• Pile and burn cut juniper and shrubs on site
• Remove cut trees from the site (via firewood cutting permits or
commercial sales).
• Seed with native or non-native seed, or a combination
(CBRAP EA pg. 12)
o Methods analyzed under alternative 2 include hand pile and burn, lop and scatter,
portable chipper, wood cutter commercial, wood cutter personal, chainsaw and
swamper burn (CBRAP EA table 1 pg. 18)
• Yes- This project is within the same analysis area and the geographic and resource
Page 4
conditions are sufficiently similar to those analyzed in the CBRAP EA (Map 2 pg. 10).
2. Is the range of alternatives analyzed in the existing NEPA document(s) appropriate with
respect to the new proposed action, given current environmental concerns, interests, and resource
values?
Yes, the alternatives analyzed in the CBRAP EA considered a range of alternatives
including no action and the thinning of young juniper trees. The alternatives are adequate
for the type and scale of treatment proposed at this time.
3. Is the existing analysis valid in light of any new information or circumstances (such as
rangeland health standard assessment, recent endangered species listings, updated lists of BLM
sensitive species)? Can you reasonably conclude that all new information and new circumstances
would not substantially change the analysis of the new proposed action?
• Yes- The CBRAP EA was completed in September 2009. At that time all current issues
of concern including greenhouse gases and wilderness characteristics where analyzed.
4. Are the direct, indirect, and cumulative effects that would result from implementation of the
new proposed action similar (both quantitatively and qualitatively) to those analyzed in the
existing NEPA document(s)?
• Yes- The direct, indirect, and cumulative effects on hydrology, water quality, special
status plant species, soils, air quality, fire management, visual resources, heritage, old
growth juniper woodlands, shrub-stepp habitats, recreation, wildlife, transportation, right
of ways, and range management were analyzed in the CBRAP EA pages 111-213.
o The proposed action is a mechanical treatment of juniper and is similar to the
following statement. "Mechanical treatment would, to some degree, mimic the
natural role of fire which, though infrequent in old-growth juniper woodlands,
historically contributed to ecological diversity by creating variable tree densities
and gap the woodlands. Thinning young juniper would relieve competition for
limited soil, water and nutrients and thus increase the health and longevity of the
remaining trees." (CBRAP EA pg. 149)
o The CBRAP EA analyzed the effects over the 32,000 acre project area. The
proposed project is limited to 1308 acres and therefore would have less of an
effect.
5. Are the public involvement and interagency review associated with existing NEPA
document(s) adequate for the current proposed action?
• Yes- The Upper Deschutes Resource Management Plan and the Cline Buttes Recreation
Area Plan and EA meet all standards for public involvement and interagency review.
o During the planning for the proposed project mailings, press releases, field trips,
and a public meeting was held. This correlates with the information in the
CBRAP EA of "Public input would be solicited periodically from partners, local
residents, adjacent communities, and through the community wildfire protection
plans." (CBRAP EA pg. 16)
Page 5
E. Persons/Agencies/BLM Staff consulted
Specialist Name Resource Represented
Theresa Holtzapple/Scott
Goodman
Cultural / Historic / Paleontology
Chris Anthony
Invasive Non-native Species, Soils, Vegetation, Special Status
Plants
Jake Akerberg Fire / Fuels
Steve Castillo Forestry / Timber / Biomass
Mike McKay Hydrology, Flood Plains, Wetlands, Riparian Zones
Emily Hurd Range / Livestock Grazing
Berry Phelps Recreation Motorized
Greg Currie
Recreation Non -Motorized, Visual Resources / Scenic or Back
Country Byways / VRM
Cassandra Hummel Special Status Animals, Migratory Birds, Wildlife
Jim Eisner Special Status Fish, Fisheries
William Dean Assistant Field Manager
Teal Purrington Environmental Coordinator
*A complete list of team members that participated in the Cline Buttes Recreation Area Plan and
Environmental Analysis is available on pg. 216 of the CBRAP and EA.
Conclusion
Based on the review documented above, I conclude that this proposal conforms to the applicable
land use plan and that the documentation fully covers the proposed action and constitutes BLM's
compliance with the requirements of the NEPA.
Signature
Responsible official:
Molly Brown
Deschutes Field Manager
10/,,/ 11
Date
Note: The signed Conclusion on this Worksheet is part of an interim step in the BLM's internal
decision process and does not constitute an appealable decision. However, the lease, permit, or
other authorization based on this DNA is subject to protest or appeal under 43 CFR Part 4 and
the program specific regulations.
Contact Person
For additional information concerning this review, contact: Guy Chamness, Fire Management
Specialist, Prineville Field Office, 3050 NE 3rd Street, Prineville, OR 97754, telephone (541)
416-6719 gchamnes@b1m.gov.
Page 6
ek D ,
Cline Buttes- Eagle Crest Units 1A, 1B and 10
Cline Buttes Legend
Eagle Crest Unit 1A- 428 Acres
Eagle Crest Unit 1 B- 793 Acres
Eagle Crest Unit 1C- 10 Acres
• Red Tail Hawk Nest
• Non Motorized Trailhead (Future)
Highway 216 and Cline Falls Highway
Access Within Project Areas
Bureau of Land Management
U.S. Forest Service
National Park Service
U.S. Fish and Wildlife
Bureau of Indian Affairs
Other Federal
State
Local Government
Private/Unknown
03fia Adi
1
MXD Y-\gchanmes.BLM\Clint Buns\Cline Buttes_Eagle_Cren_IA_and_ I B.nud
Cement Date: 09/30!2011 01:40:17 I'M
Creation Date: 9,30/2011 12:31:40 PM
No xartamy a mrd by :Fe Ilxtiw ul 1.4 14...2. zs m the a xarw,.
tcl14b1l0y40>_>4 4.0 G.11Mhr aI..Iw zf.cia, �..:
'rink o0ax44.0 (.4.4 4,14 xv...mptkI krvn.mvi,s .owsxs ad nuy
0 0.2 0.4
0.8 Miles
111111111
e
Deschutes County to boot OHVs; Off-roading to be banned on 200 acres of parkland due ... Page 1 of 2
Deschutes County to boot OHVs
Hillary Borrud / The BulletinPublished Oct 26, 2011 at 05:O0AM
Local government officials plan to close nearly 200 acres of public parkland on the Deschutes River
north of Bend to off-highway vehicle use after Deschutes County staff found habitat damage
during a recent visit to the property.
People have long driven through the property on motorcycles and all -terrain vehicles, but both the
use and the damage have increased, county staff said Tuesday. Deschutes County owns the
property and recently received a report that there was habitat damage.
Meanwhile, the Bureau of Land Management closed several of its nearby parcels to vehicle use
and is developing a new Cline Buttes Recreation Area for riders that is expected to open by 2013.
It's not the first time the county received a complaint about habitat damage on the property.
Teresa Rozic, a county property specialist, visited the property in 2006 to investigate a separate
complaint about habitat damage from vehicle use. Back then, there were trails across the
property, but they were narrow and vegetation grew between the tracks. County officials
suggested that property owners work out their conflicts, and declined to close the area to vehicles.
The scene Rozic found in September was much different.
"What I saw that was significantly different from my first investigation was that there are new
trails, and the existing trails are much wider, the ruts are deeper and there is no vegetation
whatsoever on the trails," Rozic said Tuesday.
Susan Ross, the county's property and facilities director, said county staff recommended closing
the area to vehicles, and the county commissioners last week approved the closure. The county
will go through a public process of notifying neighbors and other county residents about the plan
before it takes effect.
County commissioners designed the property as a park in the 1990s, and the vehicle use
threatens some of the goals of creating the park, such as habitat preservation and preventing the
harassment of wildlife, Rozic said. Private property owners deeded the land to the county in the
1960s.
The only way for people with vehicles to access the property is through private land, since the
federal Bureau of Land Management closed the adjoining parcel it manages to vehicle use in
recent years.
"They've got one of the barricades up, and very clear signs it's closed to vehicle use," Rozic said of
the BLM property.
The county will determine whether to hold a hearing on the closure, based upon whether it
receives much of a response from residents after they hear about the planned closure, Rozic said.
The county will also clean up garbage dumped on the property and a couple of fort -like structures,
http://www.bendbulletin.com/news/1610517-153/deschutes-county-to-boot-ohvs
6/3/2014
Deschutes County to boot OHVs; Off-roading to be banned on 200 acres of parkland due ... Page 2 of 2
one of which was built on a portion of a cave that accesses the river, Rozic said.
"There's at least one cave that's very attractive, and before the vandalism, it was access down to
the river," Rozic said. "There are golden eagle nests nearby, there are cougars and deer, of course.
... It's just very typical of our High Desert rimrock that in this particular case is undeveloped."
Bill Mansfield, 45, hikes through property owned by Deschutes County near Cline Buttes on
Tuesday afternoon. "I hike down there constantly," said Mansfield, who has lived nearby for 43
years. "I've got a 4 -year-old daughter, and I like to take her down there and show her the rabbits
and the raccoons." County officials recently decided on a plan to close the area to off-highway
vehicle use, after county staff visited the property and found habitat damage.
NV closure
Ilesttures Cronty reamlismats narffilty0ooi1ncnsefly?1J
ales of lan0 ine cuanty awns atom the Qe.:rt 10 River, rear erne &Ates.
b ctI M way Daus, atlxr stall vlzilad 1e prcety *vote. and
frond an increase to veniret0nn (i napes har:m1 ire cowry nn
ao Mune, a Colic pmaa5 III rinse tra Oarerly Iavaniciai
Soil erosion, roads and deep ruts on Deschutes County land are visible from inside Bill Mansfield's
jeep during a drive through the property on Tuesday.
http://www. bendbulletin.com/news/ 1610517-153/deschutes-county-to-boot-ohvs
Ek �_ '2.-
6/3/2014
6/3/2014
Deschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - wwti\,.deschutes.or ;
MINUTES OF WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
MONDAY, NOVEMBER 7, 2011
Present were Commissioners Tammy Baney, Alan Unger and Anthony DeBone.
Also present were Erik Kropp, Deputy County Administrator; Joe Stutter, County
Forester; media representative Hillary Borrud of The Bulletin; and seven other
citizens.
Chair Baney opened the meeting at 1:35 p.m.
1. Update on the U.S. Naval Sea Cadet Corps Program.
Johnny Corbin gave an overview of the program. He is a Navy veteran and
hopes to help this group start a new cadet program. The Sea Cadets is grade six
through twelve, and is similar to Youth Challenge and more. (Information on
the program is attached for reference.) They are not asking for funds, but
would like the endorsement of the Board.
Pilar Davami, who has introduced the program to the area, explained that her
children have been enrolled in this program and upon moving to Bend, she was
surprised it was not available. The program has been in place since 1962 and
its main purpose is not to get children into the military, but to teach leadership,
self-reliance and values, as well as sea skills. It is well funded through the
Navy, the Coast Guard and Congress, and is self -sustainable.
There are 10,000 participants in the U.S., so the program is well developed.
Scholarships are available and the program is open to those in any economic
situation. The cadets must drill in a local unit for 18 hours a month. In the
summer, they can participate in a two-week boot camp, which then opens up
many opportunities for them, including training at naval bases throughout the
country and abroad, at very little cost.
Minutes of Board of Commissioners' Work Session Monday, November 7, 2011
Page 1 of 9 Pages
F, t
2. Forester Update.
Joe Stutler introduced the attendees: John Allen, Forest Supervisor, Deschutes
National Forest; Deborah Norton, District Manager, Prineville BLM; George
Ponte, District Forester, Oregon Department of Forestry; and Kate Klein, Forest
Supervisor, Ochoco National Forest.
Debbie Norton said they are working on the Cline Buttes project and the Eagle
Crest fuels programs. They ha three or four more years of work on fuels
reduction and hopefully a use for the biomass locally. Mr. Stutler added that
they got the neighbors involved, started treating common areas and using sweat
equity, obtain an ODF grant for biomass, and probably collected 4,000 cubic
yards in the past few weeks. Work has begun on the east side of the highway.
The homeowners;' association now has $15,000 a year in their budget to
maintain what they started.
Ms. Norton said that there were some survey costs, with five people surveying
the region. La Pine is a challenging project because property lines are not
always where they are supposed to be. They are working at the State park and
other areas.
Legislation for the La Pine exchange has been passed by the Senate and
introduced to the House. If passed, it will be transferred to the community.
The cost is yet unknown, but includes an appraisal and survey, mapping and
GIS costs. Chair Baney asked if County staff could help with any of this, such
as GIS and surveys. Ms. Norton said no, it has to be done through the BLM
jurisdictional process.
Chair Baney asked if there is an estimated or average cost. This will be a City
of La Pine property. Ms. Norton said it depends on the boundaries. Some of
the properties were previously ready for disposal and had been surveyed. She
will find out approximately what these costs might be. Chair Baney asked if the
City of La Pine is aware of all of this activity. Commissioner DeBone does not
think any of the parcels have changed hands. Ms. Norton said they added one
parcel. Chair Baney wants to make sure the City is aware of the lands being
considered for this at the beginning of the process. Commissioner DeBone
stated that the Park District intends to pick up some of the costs, along with the
City and the sewer district. The process has taken a long time, and it is
probably time to clarify the cost portion.
Minutes of Board of Commissioners' Work Session Monday. November 7. 2011
Page 3 of 9 Pages
Cline Buttes Area Fuels Treatments, FY11 - FY 13
Began implementation in October, 2011 under the Cline Buttes Recreation Area Plan and
Environmental Assessment.
Currently have treated 1,318 acres (juniper thinning) adjacent to the Eagle Crest Resort and will
hand pile 217 of those acres along the property line. We will salvage larger trees for firewood
using both commercial and public firewood cutters.
Based on current funding level we estimate completing initial treatments within 5 to 10 years,
but maintenance treatments will follow.
Primary Objectives:
• Support healthy, productive and diverse populations of communities of native plants
and animals
• Maintain, promote, and restore the health and integrity of old growth juniper
woodlands
• Restore and maintain ecosystems consistent with land uses and historic fire regimes.
• Manage vegetation in the wildland urban interface (WUI) so wildland fire conditions
allow firefighter safety and successful fire suppression
FY 11 Accomplishments —1515 total acres, total cost = $310,500 ($119,400 Planning, $191,100
implementation. $205 average cost per acre for planning and implementation combined).
Projects are being accomplished with FY11 obligated dollars using a service contract and force
account labor.
• Juniper thinning —1318 Acres (900 Acres completed to date)
• Hand piling -- 217 Acres
FY 12 Planned Projects — 2918 total acres, estimated cost = $270,800 ($75,800 Planning,
135,000 Cadastral Surveys, $60,000 Implementation. $93 average cost per acre).
Projects will be accomplished using a combination of service contracts and force account labor.
• Juniper thinning — 500 Acres
• Bio -mass utilization —1000 Acres
• Rx hand pile, jackpot burning — 1318 Acres
• Hand piling —100 Acres
FY 13 Planned Projects —1700 total acres, estimated cost= $235,000 ($75,000 Planning,
$100,000 Cadastral Surveys, $60,000 Implementation. $138 average cost per acre).
Projects will be accomplished using a combination of service contracts and force account labor.
• Juniper thinning — 500 Acres
• Bio -mass utilization — 500 Acres
• Rx hand pile, jackpot burning — 500 Acres
• Hand piling —100 Acres
*More implementation acres maybe accomplished each fiscal year if more funding is
available.
BUREAU OF LAND MANAGEMENT
3050 NE Third Street • Prineville, Oregon 97754 • http://www.blm.gov/or/districts/prineville
For Release: February 1, 2012
Contact: Lisa Clark
(541) 280-9560
Seasonal Wildlife Closures in Place on Prineville District BLM
PR/NEV/LLE, Ore. -- The Bureau of Land Management (BLM) Prineville District Office is
implementing a series of wildlife closures to protect several species of birds of prey during
sensitive nesting periods. Harassment by humans — unintentional or deliberate — is a leading
cause of nest failure or abandonment. All public uses will be prohibited in the closure areas
including hiking, mountain biking, horseback riding, and OHV riding/driving.
The following areas now have seasonal closures in effect:
BLM Beach on the south side of Lake Billy Chinook will be closed from January 1 —
August 31st to protect nesting bald eagles. The BLM does not have alternate campsites in
the area.
M illican Plateau 0 HV Trail System (Route #95 only) —This route is closed from
January 1 — August 31st to protect nesting bald eagles. There are numerous other routes in
the area for out -and -back as well as loop rides.
Trout Creek Trail (South side of the Trout C reek Trail only) - Visitors will be
required to stay on the Trout Creek Trail or between Trout Creek Trail and the Lower
Deschutes River. This area is closed from February 1 — August 31St to protect nesting
golden eagles. Climbers wanting to access the sites south of the trail can use other
climbing locations such as Rattlesnake, Skinners Butte or the Gorge at Smith Rocks.
Cline Buttes Recreation Area (portions of the Deep Canyon, Maston, and Southwest
Trail Use Areas only) — are closed from February 1 — August 31St to protect nesting
golden eagles. Alternative Trail Use Areas in Cline Buttes include Tumalo Canal Historic
Area, the Buttes and the open portions of the areas listed above.
Horny Hollow Trail near Crooked River Ranch is closed from February 1 —August 31st
to protect nesting golden eagles. Alternate trail sites in the area include Otter Bench,
Scout Camp, Folley Waters and Steelhead Falls.
Dry River Canyon Trail on the southeast side of the Badlands is closed to protect
nesting prairie falcons and golden eagles from February 1 — August 31st. Alternate places
in the area to recreate include Badlands Rock Trail, Flatiron Trail and the Horse
Ridge Trail Complex.
Come join the OregonNVashington BLM on Facebook, Twitter, YouTube, and Flickr for the latest
on outdoor opportunities, videos of your public lands, spectacular photos, and a whole lot more!
FACEBOOK: www.facebook.com/blmoregon M ; YOUTUBE: www.youtube.comJuserbhnoregon
FLICKR: www.flickr.comlphotos/blmoregon ®aKa, I =JYou p TWITTER: www.twitter.combtmoregon
Ex G, (
(D
UA C®N1R 0 111,FIYIF
BUREAU OF LAND MANAGEMENT
3050 NE Third Street • Prineville, Oregon 97754 • http://www.blm.gov/or/districts/prineville
Phillip W. Schneider Wildlife Area: In addition to the raptor closures described above,
the State and BLM-administered lands in the Phillip W. Schneider Wildlife Area in Grant
County will be closed to all public access from Feb. 1 -April 14, 2012. The winter closure
is a cooperative effort meant to protect wintering mule deer as part of the Mule Deer
Initiative, an effort to restore mule deer populations which have declined in Oregon and
across the West. The closure is one of a number of steps being taken to increase mule
deer populations in the Murderers Creek Unit. Biologists believe habitat is the biggest
factor affecting mule deer. For more information on this closure, please contact Michelle
Dennehy at the Oregon Department of Fish and Wildlife at (503) 947-6022 or
Michelle.N.Dennehy@state.or.us.
Bald and golden eagles are protected by three Federal laws: The Bald and Golden Eagle
Protection Act, the Migratory Bird Treaty Act and the Lacey Act. Coverage provided by the
Migratory Bird Treaty Act also extends to prairie falcons.
The Bald and Golden Eagle Protection Act protects bald and golden eagles by
prohibiting the take, possession, sale, purchase, barter, offer to sell, transport, export or
import, of any bald or golden eagle, alive or dead, including any part, nest, or egg, unless
allowed by permit. Under this Act, "take" includes activities such as molesting or
disturbing eagles, as well as more severe actions like killing or wounding them.
The Lacey Act also protects bald eagles by making it a Federal offense to take, possess,
transport, sell, import, or export their nests, eggs and parts that are taken in violation of
any state, tribal or U.S. law.
Migratory Bird Treaty Act is a Federal law that carries out the United States'
commitment to four international conventions with Canada, Japan, Mexico and Russia.
Those conventions protect birds that migrate across international borders.
Violating the Prineville District closure orders can lead to a fine of not more than $1,000 or
imprisonment of not more than 12 months, or both. Convictions under the protection acts listed
above can be much more severe.
More information about these closures as well as maps of closure areas can be found on the
Prineville BLM website (www.or.blm.gov/prineville), or by calling the Prineville BLM office at
(541) 416-6700.
About the BLM: The BLM manages 245 million acres of public land known as the National System of Public Lands. The
lands are primarily located in 12 Western states, including 75 million acres in Alaska. With a budget of about S1 billion,
the bureau also administers 700 million acres of sub -surface mineral estate throughout the nation. The BLM's multiple -
use mission is to sustain the health and productivity of the public lands for the use and enjoyment of present and future
generations.
Come join the Oregon/Washington BLM on Facebook, Twitter, YouTube, and Flickr for the latest
on outdoor opportunities, videos of your public lands, spectacular photos, and a whole lot more!
FACEBOOK: www.facebook.comlblmoregon You YOUTUBE: www.youtube.comluserlblmoregon
FLICKR: www.flickr.comlphotos/blmoregon TWITTER: www.twitter.comlblmoregon
-0
CD
11% INEFARINSIM Of
Moms Wow...awn
Deschutes & Ochoco National Forests & Crooked River National Grassland - OHV Riding & Camping 6/9/14 7:04 AM
United States Department of Agriculture
Forest Service
Site Map
Home
Special Places
Bicycling
Camping & Cabins
Climbing
Fishing
Hiking
Horse Riding &
Camping
Hunting
Nature Viewing
OHV Riding &
Camping
Outdoor Learning
Picnicking
Rocks & Minerals
Scenic Driving
Water Activities
Winter Sports
Other Activities
Alerts & Notices
Passes & Permits
Maps & Publications
Land & Resources
Management
Learning Center
Working Together
About the Forest
News & Events
Deschutes National
Forest
63095 Deschutes Market
Road
Bend, OR 97701
(541) 383-5300
Ochoco National Forest
3160 N.E. 3rd Street
Prineville, OR 97754
(541) 416-6500
OHV Volunteers
D-dschutasi Ochucv fiattiurimi i"3fi iS a r
CrsrAk d R1yer i`lal kiori: i] rir-slssf irld
Central Oregon Combined OHV Operations
accomplishes the management of Central Oregon OHV
Trails through grant funding, primarily from the Oregon
Parks and Recreation ATV Program, with assistance from
Yamaha OHV Initiative and Polaris T.R.A.I.L.S. Grants,
various user groups and individual volunteers.
COHVOPS volunteers perform a variety of duties ranging
from yearlong commitments, to single day events. Large scale projects that
volunteers have assisted with include such things as the China Hat Campground
rebuild, the China Hat Water System, Ground Hog Rock Crawl, Kwohl Butte Shelter
Rebuild, Coyote/Cabin Butte and Swartz Canyon Cleanups, and more. Individual
volunteer efforts include such things as equipment operation; trail grooming, fence
repairs, small construction projects, staffing education events and conducting trail
patrols and visitor contacts.
Volunteer commitment helps to meet the funding match requirement for any grant
that COHVOPS applies for. All volunteer hours worked provide a 518.37 per hour
match towards that commitment. Every hour helps, so if you are interested in
assisting COHVOPS with volunteer projects please call the program manager at 541-
383-4791.
http: //www.fs.usda.gov/detail/centraloregon/recreation/ohv/?cid=stelprdb5250773
Quick Links
COHVOPS OHV Riding Areas -
Map
OHV Information: Know Before
You Go
OHV Volunteers
Tread Lightly!
Central Oregon OHV Contact
Information and other OHV
Links
Alerts & Warnings
Indian Ford Campground Bridge
Closed to Equestrian Travel
Stop the Spread of Invasive
Species
Help Protect Bats
View All Forest Alerts ._
Related Links
Oregon Parks and Recreation:
ATVsrp
Cline Buttes Central Motorized
Trail Use Area rg
H ighlights
OHV Trails- Current Conditions
Ex 14, r -
Page 1 of 2
NA£L1.44
N.Al L,44
N.0E91.44
N.0.91..bb
NA£SL.44
N O.SL,64
N..O£.4L.44
N
m
CD
p 0
E
_Co
wok
E m N
<
A �
3a 0
U
N m
O to
U
a
N..DE.LL,44
N.A.L1.44
N..O£.9L.bb N..0.91.46
N..OE.SL.bb N..OSL.66
N.0£.4 L.PV
�k liI •. Z
cu
CC
y gY
W
y..
E'
CO v,�eu d p�ai m o a,c�4,,
. 0 ym 0 sioi y rr b
Ts 4 as 14.4
p 0
m ai cu 14
ctopEol-�f° - o � 0 0
'O Cr 0 U f?, GD U CO
a) O a; � O O p a) TS
d .c jai Is p
.ova py+, o a) Z m
,0.8.0 eo e7wsz
mg Oapm ,:3e,5 2
,, 0 at14 ,..4,, ca
' a c O = A 8ai m ss
O
1 u w 0� a)
E . o O 0 ,0,ig ® .% fly iiliIill
o, y o, 0 z o .5hyy�','' tp� 3 14+t..t. cp)
a� .v O 0 .5
• � C) UL MC
C.1 Cti pp N
v� 7�.y �'`
eo cz
ilinli
6 ... � tJ 4' � t-, „ - m .0 0 t 5-4 %. d S CC
Cn s. + y O y p fi d+ �+ p 0 zs
CO
BIGGEST 2012 OREGON BANKRUPTC
C
cn
0
0
U
w
0
a
cn
U
2
z
J
American Amex Inc.
Peter DeHaan Holsteins LLC
Wamke-Lombard LLC
BANKRUPTCY RINGS IN OREGON BY YEAR
35,000
136 107 '08 X/9 '10 '11 '12
Scerre U ParOnac) Cart
While the housing collapse continues to
fuel disputes between borrowers and lend-
ers, some say the overall drop in bank-
ruptcy filings is a sign that the worst of
the economic collapse has passed.
"Thereis a link between the economy
and bankruptcy filings," Goldberg said.
"Bankruptcy is ktiown to be cyclical."
The most recent University of Oregon
Index of Economic hidicators, the state's
key economic mf-asurement tool, showed
Oregon's economy is -holding steady.
Pockets a strength include manufactur-
ing and health care.
"I see all different indicators showing
that the Oregon economy is improving
although it is not across the whole state,"
said Jeffrey Wang, an associate profes-
sor of finance at Oregon State University.
, "We have seen some counties improve,
but not statewide improve.ment."
fl Torp bankruptcy attorney Al
handled several of the
t bankruptcy filings in Or -
:1, 9 VeeSSinnS Can slice into sales
Anpanies out of business.
'
'Said just as often industry shifts,
lege/ Judgments and technological chang-
es force businesses into bankruptcy pro-
tection.
"Chapter 11 restructurings are related
to some degree to the economy, but not
nearly as much as people might think,"
he said.
Kemiedy filed Chapter 11 bankruptcy
on behalf of 11 companies between 2011
and 2012. Of those,only four were directly
related to the recession. The others re-
sulted from other causes, such as adverse
legal rulings.
"Most Chapter 11s are caused by other
issues," he said.
mkish@bizjoumals.com 1 503-219-3414
0.24=r-a.1.41.E661751.32.427-2:.
•
tzz
EJ, 1_, 1)-
NOTICE OF PENDENCY OF AN ACTION
Pursuant to ORS 93.470, the undersigned states:
1. As plaintiff, Thornburgh Resort Company, LLC, has filed an action in the Circuit Court
for Deschutes County, State of Oregon.
2. The defendants are: Loyal Land, LLC; Terrence Larsen; Central Oregon Investments
Holdings, LLC; Parker Group Investments, LLC; and Jeffrey Parker.
3. The object of the action is: to obtain declaratory relief from the court, and a decree
quieting title, establishing that none of defendants holds an interest in certain Property located in
Deschutes County, Oregon and described as set forth on Exhibit A, hereto, pursuant to that
certain trust deed originally granted to Sterling Savings Bank on or about November 26, 2007
and thereafter assigned to Central Oregon Investment Holdings, LLC on or about March 2, 2011,
thereafter assigned to Terrence Larsen on or about March 2, 2011, and thereafter assigned to
Loyal Land, LLC on or about March 7, 2011.
4. The description of the real property to be affected is: See Exhibit A, attached hereto.
Dated this 30th day of August, 2011.
Thornbur Resort Company, LLC, Plaintiff
ameron DeLas
, Manager
Name: Thornburgh Resort Company, LLC
Address: P.O. Box 264
Bend OR 97702
Phone No.: 541-548-0682
STATE OF OREGON )
) ss.
County of Deschutes )
3041 an►
The foregoing instrument was acknowledged before me this .9(h day of August, 2011by
ketal eros beLet.shfilt,ft- .
avvOlvizyciL1)44
Notary Public for Oregon
My commission expires:
To ""
j 14161 .E 15/4' mi0 N
174/0&ik. t)k2 Re s o>2 -i Co w. t o n
Po /3o)( 2,61( ei/L. i) 7O9
0-7/,24.20/6
OFFICIAL SEAL
ANNETTE MARIE MARTINEZ
NOTARY PUBLIC -OREGON
COMMISSION NO. 459596
MY COMMISSION EXPIRES JULY 2015 9
DESCHUTES COUNTY OFFICIAL RECORDS 20+� 3041
NANCY BLANKENSHIP, COUNTY CLERK + ' '1
111 1111 111111111111111111 111 1111111111 IN $"'Qc
7 0070582420110030474004004B
08/30/2011 03:19:59 Pr
M-LISPN Cnl:i Stn:25 CLERK
$20.00 $11.00 $16.00 $10.00 $6.00