HomeMy WebLinkAboutMillican Mining Site Remand DecisionDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of November 12, 2014
Please see directions for completing this document on the next page.
DATE: October 31,2014
FROM: Paul Blikstad Department CDD Phone # 6554
TITLE OF AGENDA ITEM:
Public hearing on applications for a Plan Amendment to add the subject property, adjacent to Highway
20 and Spencer Wells Road near Millican to the County's Goal 5 surface mining inventory of mineral
and aggregate resources; and a Zone Change from Exclusive Farm Use (EFU-HR) to Surface Mining
(SM), for approximately 365 acres. File numbers PA-04-8/ZC-04-6
PUBLIC HEARING ON THIS DATE? Yes
BACKGROUND AND POLICY IMPLICATIONS:
The applications have been approved locally three different times through written decisions by the
Board of County Commissioners (BOCC), in December 2006 (Document 2006-609), October 2008
(Document No. 2008-536), and September 2010 (Document No.20 1 0-570). Each decision resulted in
an appeal and subsequent remand by the Land Use Board of Appeals (LUBA). The BOCC's third
decision was appealed to LUBA by Keith and Janet Nash (LUBA No. 2010-082). LUBA issued a
Final Opinion and Order on February 5, 2011.
4-R Equipment, on September 25,2014, requested the Planning Division initiate the remand process
and schedule a forthcoming public hearing. A work session with the BOCC is scheduled for November
5,2014 and a hearing date for November 12,2014. Staffis required to notify all the parties to the
original proceedings of the remand hearing. Staff is also soliciting comments from the Bureau of Land
Management, including issues associated with sage grouse. Those comments are forthcoming.
FISCAL IMPLICATIONS:
The Board's hearing costs are factored into the remand hearing fee.
RECOMMENDATION & ACTION REQUESTED:
The Board is required to hear the applications, which will be limited to the two issues raised by LUBA
in their 2011 Final Order and Opinion. Staff is sending notice of the hearing to all parties.
ATTENDANCE: Paul Blikstad, Laurie Craghead
DISTRIBUTION OF DOCUMENTS:
Planning Division staff will distribute the Board's written decision on these applications.
Community Development Department
Planning Division Building Safety Division Environmental Soils DIvision
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: October 30,2014
TO: Deschutes County Board of Commissioners
FROM: Paul Blikstad, Senior Planner
RE: PA-04-8/ZC-04-6, Plan Amendment and Zone Change I Remand
1. Background
The applicant, 4-R Equipment, LLC, in 2004 initiated an application for a:
• Plan Amendment to add the subject property, adjacent to Highway 20 and Spencer
Wells Road near Millican to the County's Goal 5 surface mining inventory of mineral
and aggregate resources; and,
• Zone Change from Exclusive Farm Use (EFU-HR) to Surface Mining (SM), for
approximately 365 acres.
The applications have been approved locally three different times through written decisions by
the Board of County Commissioners (BOCC), in December 2006 (Document 2006-609),
October 2008 (Document No. 2008-536), and September 2010 (Document No.2010-570). Each
decision resulted in an appeal and subsequent remand by the Land Use Board of Appeals
(LUBA). The BOCC's third decision was appealed to LUBA by Keith and Janet Nash (LUBA
No. 2010-082).1 LUBA issued a Final Opinion and Order on February 5, 2011.
It has been over 3.5 years since LUBA issued their third Final Opinion and Order. The
timeframe for this process has remained under the applicant's control. It is not due to any delay
on Deschutes County's part.
2. Recent Remand Order
LUBA's Order states the following:
1 The first two appeals to LUBA were submitted by Clay and Tammera Walker, owners of property across Highway
20 from the proposed surface mine.
Quality Services Perfonned 'With Pride
liTo summarize, remand is again necessary for (1) the county to expand the
impact area to include the Flat Pasture or to identify substantial evidence in the
record that supports its decision to limit the impact area to one-half mile from the
proposed mine; and (2) to evaluate any conflicts with petitioners' agricultural
operations in the impact area that the county designates, including whether the
proposed mine would cause sage grouse to abandon the area and seek habitat on
petitioners' other allotments.II
4-R Equipment, on September 25, 2014, requested the Planning Division initiate the remand
process and schedule a forthcoming public hearing. A work session with the BOee is
scheduled for November 5, 2014 and a hearing date for November 12, 2014. Staff is required
to notify all the parties to the original proceedings of the remand hearing.
comments from the Bureau of Land Management, including issues
grouse. Those comments are forthcoming.
3. Attachments
Attached with this memorandum are the following:
• BOee written decision, Document No.2010-570
• Map showing the mining site and surrounding area
• LUBA Final Opinion and Order, No. 2010-082
• Applicant's remand request
• Applicant's burden of proof
Staff is also soliciting
associated with sage
• Letter from Roger Borine regarding agricultural use, noise, and sage grouse issues
associated with the mining site
• Letter from Stephen Roth regarding farming adjacent to the mine
Attachments:
1. BOee Written Decision (Document No.201 0-570)
2. Map of Mining Site and Surrounding Area
3. LUBA Final Opinion and Order (LUBA No. 2010-082)
4. Remand Request
5. Burden of Proof
6. Roger Borine Letter
7. Stephen Roth Letter
ATTORNEYS
Neil R. Bryant
John A. Berge
Sharon R. Smith
John D. Sorlie
Mark G. Reinecke
Melissa P. Lande
Paul 1. Taylor
Jeremy M. Green
Melinda Thomas
Heather J. (Hepburn) Hansen
Garrett Chrostek
Danielle Lordi
September 25, 2014
Via: e-mail and regular mail
Paul Blikstad, Senior Planner
Deschutes County Community Development Department
117 NW Lafayette Ave
Bend, Oregon 97701
Paul.Blikstad@deschutes.org
Re: Nash v. Deschutes County
Oregon Land Use Board of Appeal Case No. 2010-082
Deschutes County Planning File Nos. PA-04-08 and ZC-04-06
Dear Paul:
Applicant 4-R Equipment, LLC requests that PA-04-08/ZC-04-06, which was remanded
by the Land Use Board of Appeals in LUBA Case No. 2010-082 be reactivated as of
September 29, 20) 4 and that the County schedule appropriate proceedings to process the
remand.
Applicant submits the attached Burden of Proof on Remand into the record as its
argument on remand.
Please contact me if you have any questions.
Sincerely,
Sharon R. Smith
smith@bljlawyers.com
Enclosure
RECl!lVfD
IY: d~
SEP 2 6 2014
DELIVERED BY:
CAr,-$jllZ
(06829091-00480483;I)
A legacy of service to our community.
591 SW Mill View Way. Bend. OR 9770.2 I P 541.38.2.4331 I F 541.389.3386 I bljlawyers.com
BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER
)
File Nos.: PA-04-81 ZC-04-8 ) BURDEN OF PROOF
(LUBA No.: 2010-082) ) ON REMAND
)
APPLICANTI
PROPERTY OWNER: 4-R Equipment, LLC
clo Bryant Lovlien & Jarvis, PC
591 SW Mill View Way
Bend, OR 97702
ATTORNEY: Sharon R. Smith
Bryant, Lovlien & Jarvis, PC
591 SW Mill View Way
Bend,Oregon 97702
REQUEST: Applicant requests a Plan Amendment and Zone Change for 385
acres from Exclusive Farm Use (EFU-HRlFP/LM/W A) to Surface
Mining (SM).
LOCATION: 57720,57750 and 57600 Spencer Wells Road,
Deschutes County Assessor's Tax Map 19-15-00, Tax Lots: 902,
1000, and 1001,'Deschutes County, Oregon.
I. EXHIBITS:
1. LUBA -Final Opinion and Order dated 2/15/2011 (Nash v. Deschutes County, LUBA
Case No.: 2010-082)
2. Site Map
3. Letter from Roger Borine
4. Letter of support from Stephen Roth
II. PURPOSE: The purpose of this Burden of Proof on Remand is to address the questions
presented by LUBA on remand in LUBA Case No.: 2010-082.
III. BACKGROUND: In 2004, Applicant applied for a Zone Change and Plan Amendment
to rezone 385 acres of EFU land to SM. The County approved this request, but the decision was
appealed to LUBA in Walker v. Deschutes County, 55 Or LUBA 93 (2007). LUBA remanded
and the County approved the application on remand. Opponents appealed and LUBA remanded
the decision for a second time in Walker v. Deschutes County, 59 OR LUBA 488 (2009). Both
of the first two appeals centered on the County's assessment of off-site impacts and its
determination of the size of the impact area. A third appeal, Nash v. Deschutes County, LUBA
No.: 2010-082, followed the County's second approval on remand, which resulted in the current
remand. In this third remand, LUBA has directed the County to (1) either analyze an expanded
impact area that includes the "Flat Pasture" or to identify substantial evidence in the record that
supports its decision to limit the impact area to one-half mile from the proposed mine, and (2) to
evaluate any conflicts with the agricultural operations of property owned by the Nashs within the
impact area.
Page 1 of2 -BURDEN OF PROOF ON REMAND {06829091-00440295;21
IV. ARGUMENT:
1. The Flat Pasture Should be Excluded from the Impact Area
Attached as Exhibit J is a letter from Roger Borine, a licensed soil scientist and expert on
agricultural operations, which indicates that surface mining operations will have few if any
effects on the Flat Pasture. Specifically, the letter details how mining operations will have
minimal effect on livestock and will occur while the portion of the Flat Pasture proximate to the
Subject Property is generally not in use. Therefore, there is no need to expand the impact area to
include this property.
2. The Proposed Zone Change Will Not Have Any Negative Impacts on Petitioner's
Agricultural Operations.
The Borine letter indicates that there are few if any effects of the agricultural operations on the
property fonnerly owned by the N ashs. In any event, the Nashs are no longer owners and the
current owner, Stephen Roth, issued a letter of support, attached as Exhibit 4, in which he attests
that mining operations have no effect on their agricultural operations.
3. Applicant has Acquired Additional Property to Mitigate Impacts
Since filing P A-04-8/ZC-04-8, Applicant has acquired 3 additional parcels (Tax Lots 800 and
801 of Assessor's Map 19-14-25 and Tax Lot 908 of Assessor's Map 19-15) to the northwest and
west of the Subject Property. These parcels total approximately 65 acres and will provide
additional buffer to adjacent properties from the impacts, if any, from mining operations.
4. Incorporation of Prior Record(s)
Applicant incorporates by reference the entire record for P A-04-8/ZC-04-8 (LUBA Case Nos.:
2007 -013, 2008-189 and 2010-082) to support approval of its application, including prior
Burdens of Proof and legal argument submitted by the Applicant.
V. CONCLUSION: For the foregoing reasons Applicant satisfies all of the criteria
applicable to the requested approvaL
Submitted this 25 th day of September, 2014
BRYANT, LOVLIEN & JARVIS, P.C.
Sharon R. Smith OSB #862920
Garrett Chrostek OSB # 122965
Of Attorneys for Applicant
Page 2 of2 -BURDEN OF PROOF ON REMAND {06829091..()()440295;2 }
Sage West, LLC RogerBorin~CPS~ CPS~PWS
Soils, Wetlands, Wildlife Habitat (541) 610-2457
September 5, 2014
Following is an assessment and conclusion for the effect of development and full operation of the Spencer Wells Mine on
livestock and ranching operations.
1. Livestock and ranching operations of the EWR will not be impacted by the development and full operation of the
Spencer Wells Mine
Existing Agricultural Operations
The USDI-Bureau of Land Management's (BLM) Horse Ridge Allotment (HRA) is approximately 22,152 acres and consists of six
pastures. Each pasture in this allotment has an established season of use and planned use period (to spread the grazing time
period to assure proper utilization), which are outlined in BLM's Resource Management Plan (RMP) and addressed in detail
within the Allotment Management Plan (AMP). The former Evans Well Ranch (EWR) was the only permitted ranching
operation to graze livestock on the allotment.1
The Horse Ridge allotment's Flat Pasture is approximately 5,010 acres or 7.3 square miles. This is the only pasture that
shares, in part, a common boundary with the proposed Spencer Wells Mine (SWM) along the common boundary of Tax Map
19-14-25, Tax Lot 1100 and the SW corner of Tax Map 19-15-00, Tax Lot 902. At the common boundary, which is a quarter
mile long, SWM is separated from the Flat Pasture by a 200 foot setback and two fences and a paved road. Grazing on the
Flat Pasture is only permitted from November 1 to December 15. Grazing management practices such as watering, salting or
feeding supplements to attract and evenly distribute cattle and promote proper plant utilization in the northeastern portion
of the Flat Pasture and near the common border, were not Identified or used on a routine basis by EWR. Given that these
management practices are not used, and the limited amount of forage available, there is nothing to attract cows to this
location. Therefore, the occurrence of cattle near the Spencer Wells Mine, while In operation, would be highly unlikely and
only incidental. The five remaining pastures in the Horse Ridge Allotment are a minimum of 2 air miles from the SWM. This
is well beyond the point at which sounds from the mine would be audible as discussed below.
Noise
EWR opposed the SWM because, in its view, the blasting and other activities may adversely affect their grazing operations.
Noise is measured in Decibels (volume) and Hertz (pitch). Cattle are able to hear a wide range of frequencies ranging from
16-40,000 Hertz (Hz). For comparison, humans are able to hear 20-20,000 Hz. Existing decibel levels in the Flat Pasture range
from 60 to 140 dB from such sources as traffic on Hwy 20 (90 dB), Spencer Wells Rd (90 dB), Evans Well Rd (90 dB), shooting
(140 dB), motorcycles and staging areas (100 dB), and home and recreation sites (60-125 dB). High Frequency sounds of
2,000-4,000 Hz are the most damaging; a "silent" dog whistle produces 5,400-12,800 Hz; a high octave produced by a piccolo
is 2,000·4,000 Hz. Blasting produces a low frequency (30-40Hz) shockwave, which is characterized by an abrupt, nearly
discontinuous change in the volume. Shockwave energy dissipates quickly with distance (See the attached Apollo Geophysics
Corp. letter for additional information of shockwaves and vibrations). SWM blasting and crushing noise will be less than 124
dB at 500 feet and less than 43dB at 1,500 ft. For comparison, the ambient noise level of the area was measured at 41.7 dB
and a semi-truck driving 55 miles per hour on Highway 20 produces 84.3 dB (See the attached Kleinfelder report).
Noise levels are greatest in the first blast and first crushing, as it occurs on the surface. Subsequent blasting and crushing will
take place below the surface. Subterranean shockwaves dissipate more quickly and travel a shorter distance. Regardless of
blasting depth or distance from the blast, all SWM activities are within the existing 60-140 dB levels regularly occurring from
other existing activities in the Flat Pasture as shown in the attached Kleinfelder report. Few cattle will be grazing nearby
because there is a limited grazing season on the Flat Pasture, the grazing area is over 5,000 acres, and no supplements are
employed to attract them to this location.
I Evans Well Ranch (owned by Nash) was the prior holder of the allotment. The current holder of the allotment is Roth.
64770 Melinda Court rborine@bendbroadband.com
Bend, OR 97701
Exhibit R-3
1of2
Sage West, LLC Roger Sorine, CPSS. CPSC. PWS
Soils, Wetlands, Wildlife Habitat (541) 610-2457
Even when cattle are in proximity to mining operations, mining operations do not seem to have a significant adverse effect.
Local rancher Stephen Roth currently runs cattle within 500 feet of 4-R Equipment's Horse Ridge mine while operations are
ongoing. Mr. Roth concluded that his cattle do not seem to experience any adverse effect from noise or vibrations
associated with mining operations at this proximity. The distance between the Horse Ridge mine and Mr. Roth's cattle is
comparable to the common boundary of the HRA to the SWM. Also, Mr. Roth is now the holder of Flat Pasture allotment
and has no concerns about the SWM operation.
Therefore, blasting and crushing operations will not disturb cattle or ranching operations as the mining activities are well
within existing decibel levels.
Sage Grouse
The former owner of the EWR also claimed the SWM would affect their agricultural operations because of potential impacts
on sage grouse. The BLM previously reduced EWR's use of Flat Pasture to provide additional winter habitat for sage grouse
for reasons unrelated to the SWM. EWR argued that mine blasting may cause sage grouse to move away from the SWM and
onto their allotment. If that were to occur, EWR argued the BlM may further reduce or eliminate grazing of Flat Pasture to
the detriment of EWR's operations.
The SWM will not have the effect claimed by the former owner of the EWR. First, BlM grazing records indicate that EWR
itself, not BlM, requested the season of use in Flat Pasture be changed to November 1 to December 15 from the previous
period of January 1 to October 31. This change allowed EWR to align movement of their cattle from adjoining grazing areas
(the USFS permit to the HRA's Evans Wells Pasture then to the Flat Pasture) with the permitted seasons of use on those
respective grazing areas in a logical sequence. Prior to the change, the permit allowed 125 AUM's for approximately 3
months. Following the change, 125 AUM's are permitted for 1 Y. months in the Flat Pasture. EWR's requested change likely
increased the amount of forage available for sage grouse by shortening the grazing season. Additionally, winter grazing
primarily occurs in the southwestern portion of the Flat Pasture where water is available and feeding of hay permitted. Thus,
even if sage grouse were to migrate due to the operations of the SWM to the Flat Pasture for winter habitat, the likely area
of migration would not be used by cattle.
Second, BlM range management speCialists, wildlife biologists, Area and District managers and the former Permittee (EWR)
had agreed on a grazing management plan for the Horse Ridge Allotment that retains historic grazing use levels as identified
in the leslie Ranches CRMP (the controlling document). This current grazing plan, which contemplated sage grouse issues
and the proposed SWM, did not reduce the total land or forage available for grazing cattle. Further, ODFW has submitted
comments acknowledging that the mitigation proposed by the SWM will be sufficient to address their concerns for sage
grouse.
In summary, there is no evidence that the proposed SWM mine will affect sage grouse in a claimed manner or otherwise
negatively affect agricultural operations adjoining the SWM. Rather, the evidence shows that if the mining operations were
to cause sage grouse to migrate onto adjoining properties, sage grouse will not be impacted as cattle do not use potential
wintering habitat. The BlM agreement also suggests the SWM is not going to cause that agency to reduce grazing
opportunities on the Flat Pasture.
Conclusion
Because the mine will not contribute noise above that already existing in the val1ey, will have a negligible, if any, effect on
surrounding agricultural operations, and there will be no negative impacts on sage grouse, there is no basis to extend the
impact area beyond one-half mile from the mine site.
Regards,
Roger Bonne, CPSS/SC, PWS
64770 Melinda Court t1Jorine@bendbroadband·com
Send, OR 97701
Exhibit R-3
20f2
October 16, 2013
Deschutes County Commwlity
Development Department
117 NW Lafayette Ave
Bend, Oregon 97701
Re: Support of Surface Mine Rezone (PA 04-8 I ZC 04-6)
The purpose ofthis Jetter is to support the land use application of 4-R Equipment to re
zone property to Surface Mining. I have a cattle ranch operation and recently purchased
property in the SUlTOunding area ftom Charles (Keith) and Janet Nash (Tax Map 20-14·
00, Tax Lot 400) along with several grazing allotments.
I have worked with 4-R Equipment, and find they are a responsible mining operator.
Their mining operations are compatible with cattle grazing. At their nearby Horse Ridge
mining operation. we have an agreement wtaere I can use their private lands adjacent to
the mine to graze, supplement feed and water my cattle during the winter. The cattle are
within SOO feet of the mining operation and the cattle are not adversely affected by the
noise, vibration or any mining impacts.
Recently, the BLM has restricted cattle operations from supplement feeding on BLM
grazing allotments during the winter. lbis bas a ~vere impact on my operations. 't-R
Equipment wiU allow me to graze, supplement teed and water my cattle (using their
water when available) on the property adjacent to the proposed surface mine. The cattle
will be on Tax Map 19-14-25, Tax Lots 800, 802 and 1000. The proposed surface mine
is adjacent on Tax Map 19-1 S-OO, Tax Lots 902, 1000 and 1001. This wiIJ be of great
benefit to me and I do not see any problem with feeding and watering cattle next to the
future mining operations. The security fencing provided by 4-R will keep the cattle from
the mining operation and the mining will not affect my cattle.
I fully support their zone cbange.
Sincerely.
A'-F:;IM-
Stephen Roth
41600 Hwy20
Brothers, OR 97712
Exhibit R-4
1 of 1
~ Subj eet :'roperty
~ Additional Property O~-med by Applicant
1 of 1
BEFORE THE LAND USE BOARD OF APPEALS
2 OF THE STATE OF OREGON
3
4 KEITH NASH and JANET NASH,
5 Petitioners,
6
7 vs.
8
9 DESCHUTES COUNTY,
)0 Respondent,
11
12 and
13
14 4-R EQUIPMENT, LLC,
15 Intervenor-Respondent.
16
17 LUBA No. 2010-082
18
19 FINAL OPINION
20 AND ORDER
21
22 Appeal from Deschutes County.
23
24 David A. Moser, Portland, filed the petition for review and argued on behalf of
25 petitioner.
26
27 No appearance by Deschutes County.
28
29 Robert S. Lovlien, Bend, filed the response brief and argued on behalf of intervenor
30 respondent. With him on the brief was Bryant, Lovlien and Jarvis PC.
31
32 RY AN, Board Member; HOLSTUN, Board Chair; BASSHAM, Board Member,
33 participated in the decision.
34
35 REMANDED 02/15/2011
36
37 You are entitled to judicial review of this Order. Judicial review is governed by the
38 provisions of ORS 197.850.
Page 1
Exhibit R-1
1 of 12
Opinion by Ryan.
2 NATURE OF THE DECISION
3 Petitioners appeal a county decision that approves a plan amendment and zone
4 change to allow a gravel mine.
5 MOTION TO INTERVENE
6 4-R Equipment, LLC (intervenor), the applicant below, moves to intervene on the
7 side of respondent. There is no opposition to the motion, and it is allowed.
8 FACTS
9 This case is before us for the third time. I In 2006, intervenor applied to have its 385
10 acre property placed on the county's inventory of mineral and aggregate sites, and to rezone
II the property to Surface Mining (SM), to facilitate proposed mining and crushing of basalt
12 rock. Mining operations will occur on the subject property from November through
13 February. As relevant here, the subject 385-acre property is adjacent to a cattle ranch, the
14 Evans Well Ranch, an approximately 22,000-acre ranching operation that is comprised in
15 part of six pastures that are leased to petitioners by the Bureau of Land Management
16 (BLM). 2 The BLM manages and controls the use of the pastures and assigns periods of
17 grazing for each of the six pastures. One of those pastures, the Flat Pasture, is approximately
18 5,000 acres in size and shares a common boundary of approximately 1,320 feet with the
19 subject property. The subject property is separated from Flat Pasture by a fence and by
20 Spencer Well Road, a paved road. A well that does not freeze in the winter is located within
21 the Flat Pasture, more than two miles from the pasture's common boundary with the subject
22 property.
1 In Walker v. Deschutes County, 55 Or LUBA 93 (2007) (Walker J) and again in Walker v. Deschutes
County, 59 Or LUBA 488 (2009) (Walker IJ), we remanded the county's decision.
2 The Evans Well Ranch is sometimes referred to in the record as the BLM's Horse Ridge Allotment.
Record 117.
Page 2
Exhibit R-1
2 of 12
After our remand in Walker v. Deschutes County, 59 Or LUBA 488 (2009) (Walker
2 If) to address evidence regarding impacts of the mine on the Evans Well Ranch agricultural
3 operations, intervenor submitted into the record a report (Borine Report) that concluded that
4 the proposed mine would not have an adverse effect on any of the Evans Well Ranch
5 agricultural operations that occur in the Flat Pasture. Record 114-121. Based on the Borine
6 Report, the county again approved the applications. This appeal followed.
7 FIRST AND SECOND ASSIGNMENTS OF ERROR
8 A. Applicable Law
9 OAR 660-023-0180(5) sets out the procedures and standards for determining whether
10 to allow mining of a significant mineral resource. OAR 660-023-0180(5)(a) includes a
11 requirement to determine an "impact area" in order to identify conflicts with the proposed
12 mine.3 Generally, the rule limits the size of the "impact area" to 1,500 feet from the mining
13 area, unless "factual information indicates significant potential conflicts beyond this
14 distance." (Emphasis added.) In the present case, the county apparently chose an impact
15 area of one-half mile from the property boundary of the tract that includes the mining site,
16 instead of the 1,500 foot minimum specified by 660-023-0180(5)(a), because the half-mile
17 distance corresponds to the Surface Mining Impact Area overlay zone that is automatically
18 imposed under Deschutes County Code (DCC) 18.56.020, which requires that "[t]he SMIA
19 zone shall apply to all property located within one-half mile of the boundary of a surface
20 mining zone."
) OAR 660-023-0180(5) states in relevant part:
"For significant mineral and aggregate sites, local governments shall decide whether mining
is permitted. * * *
"(a) The local government shall determine an impact area for the purpose of identifying
conflicts with proposed mining and processing activities. The impact area shall be
large enough to include uses listed in subsection (b) of this section and shall be
limited to 1,500 feet from the boundaries of the mining area, except where factual
information indicates significant potential conflicts beyond this distance. * * ...
Page 3
Exhibit R-1
3 of 12
The rule also requires the county to determine existing land uses within the impact
2 area that will be adversely affected by the proposed mine, and specifically to consider
3 "[c ]onflicts with agricultural practices" within the impact area. 4 The designation of the
4 impact area and the assessment of conflicts with agricultural practices within the impact area
5 are sometimes interrelated, because in order to determine the size of the impact area, and
6 hence which existing land uses are subject to the adversely affected analysis under OAR 660
7 023-01S0(5)(b) and (c), some evaluation of potential impacts on agricultural practices in the
8 larger vicinity of the proposed mine may be required.
9 B Walker I and Walker II
10 In Walker v. Deschutes County, 55 Or LUBA 93 (2007) (Walker I), we remanded the
11 county's decision approving the applications for the county (1) to consider whether to
4 OAR 660-023-0IS0(5)(b) and (c) provide, in relevant part:
"(b) The local government shall determine existing * * * land uses within the impact area
that will be adversely affected by proposed mining operations and shall specify the
predicted conflicts. * * * For determination of conflicts from proposed mining of a
significant aggregate site, the local government shall limit its consideration to the
following:
"(A) Conflicts due to noise, dust, or other discharges with regard to those
existing and approved uses and associated activities (e.g., houses and
schools) that are sensitive to such discharges;
,,*****
"(0) Conflicts with other Goal 5 resource sites within the impact area that are
shown on an acknowledged list of significant resources and for which the
requirements of Goal 5 have been completed at the time the PAPA is
initiated;
"(E) Conflicts with agricultural practices[.]"
"(c) "The local government shall determine reasonable and practicable measures that
would minimize the conflicts identified under subsection (b) of this section. To
determine whether proposed measures would minimize conflicts to agricultural
practices, the requirements of ORS 215.296 shall be followed rather than the
requirements ofthis section. If reasonable and practicable measures are identified to
minimize all identified conflicts, mining shall be allowed at the site and subsection
(d) of this section is not applicable. If identified conflicts cannot be minimized,
subsection (d) of this section applies." (Emphasis added.)
Page 4
Exhibit R-1
4 of 12
expand the impact area beyond the one-half mile that the county concluded was appropriate,
2 to include other grazing lands that are part of the Evans Well Ranch, and (2) to determine
3 possible mining conflicts with agricultural operations on the Evans Well Ranch. We
4 sustained the petitioners' assignments of error in part because there was evidence and
5 testimony in the record that indicated that the Evans Well Ranch grazing operations beyond
6 the one-half mile impact area may also be impacted by the mining, and that blasting and
7 other activities from the proposed mine could adversely affect their grazing operation.
8 In Walker II, we sustained the petitioners' assignments of error that again challenged
9 the county's decision not to expand the impact area beyond one-half mile and its conclusion
10 that the mining would not conflict with agricultural practices within that one-half mile
II impact area. We agreed with petitioners that the county erred in limiting its analysis to a 40
12 acre parcel that is part of the Evans Well Ranch immediately adjacent to the subject property,
13 and failing to consider petitioners' evidence and testimony that the proposed mine would
14 produce conflicts with grazing on areas of the Flat Pasture located both within and beyond
15 one-half mile from the proposed mine. 5
S We held in Walker II:
"Petitioners are correct that the county's findings with respect to the size of the impact area
and conflicts with agricultural uses within the one-half mile impact area appear to be based on
the understanding that the only Evans Wells Ranch grazing allotment located in the vicinity
of the mining site is the adjacent 40-acre parcel. The county apparently failed to appreciate
that other Evans Well Ranch grazing allotments are located nearby, some within the one-half
mile SMIA overlay zone and some outside the zone. For purposes of determining the size of
the impact area under OAR 66O-023-0180(5)(a), and whether 'factual information indicates
significant potential conflicts beyond' the initial 1,500-foot impact area provided under the
administrative rule, the county must sometimes evaluate evidence regarding land that is
located outside that initial 1,500-foot impact area, and potentially some distance from the
mining site. The county's failure to appreciate that there are Evans Well Ranch grazing
allotments in the vicinity other than the adjacent 40-acre allotment, such as the Flat Pasture
area with its water source, means that the county's determination regarding the size of the
impact area is flawed. Remand is necessary for the county to consider all relevant evidence
regarding all Evans Well Ranch grazing allotments that are in the vicinity and potentially
affected by the proposed mining operation, and to determine the size of the impact area based
on whether 'factual information indicates significant potential conflicts' with grazing on those
allotments.
Page 5
Exhibit R-1
5 of 12
C. The County's Latest Decision to Approve the Mine
2 The county found:
3 "The Board concludes that there will be no significant potential conflict with
4 the Evans Well Ranch or its grazing allotments on the BLM property adjacent
5 to the proposed mining site, including the Flat Pasture grazing allotment west
6 of the proposed mining site. The Board finds that the written report and oral
7 testimony submitted by Roger Borine, the applicant's consultant, sufficiently
8 demonstrates that the proposed mining operation, including blasting, will not
9 impact to any great extent the cattle grazing on the Flat Pasture allotment, or
10 that other impacts of the proposed mining would cause cattle on that allotment
II to abandon the Flat Pasture and instead graze more heavily on privately
12 owned pastures on the ranch itself, outside the impact area.
13 "The Borine agricultural report has the following conclusions on page 6 of the
14 report:
15 '''The Flat Pasture is detennined to be the 'impact area'. It is the only
16 pasture in the Horse Ridge Allotment that shares a common boundary
17 with the [subject property] and is approximately 5,010 acres or 7.3
18 square miles in size. The five remaining pastures are over two air
19 miles from [the subject property.]
20 '''The optimal period for grazing annual and perennial grasses by
21 livestock near the [mine] is in late March, April, May and early June.
22 Mining operations will occur during the months of November
23 February. No ranching management practices in the northeast portion
24 of the impact area were identified to attract and evenly distribute cattle
25 and promote proper plant utilization. The occurrence of cattle near the
26 [mine] while in operation would be highly unlikely and only
"Even if it is presumed that the one-half mile impact area chosen by the county is justified for
purposes of OAR 660-023-01S0(5)(a), remand is necessary in any case, because the county's
findings regarding conflicts with agricultural uses under OAR 660-023-0IS0(5)(b)(E) also
appear to be based on the misapprehension that the only grazing within the impact area occurs
on the adjacent 4O-acre parcel. The Nashes testified, and intervenor does not dispute, that
other Evans Well Ranch grazing allotments are located within the one-half mile SMIA
overlay zone. Finally, the county's findings under OAR 660-023-OISO(5)(b)(E) do not
address the Nashes' testimony regarding noise impacts on their cattle operation, or indeed
noise impacts on cattle at all. The findings cite fencing and a 200-foot buffer area as the
principal bases for concluding that the mine operation will not conflict with agricultural
practices, that is, will not force a significant change in accepted fanning practices or
significantly increase the cost of accepted farming practices. However, the Nashes submitted
specific testimony regarding noise impacts on their grazing operation, and the county's
findings neither address that testimony nor demonstrate that fencing and a 200-foot buffer
area are sufficient to ensure that the mining operation will not conflict with agricultural
practices, for purposes of OAR 660-023-0 I S0(5)(e)." Walker II at 495-96.
Page 6
Exhibit R-1
6 of 12
I incidental. Blasting and crushing operations are well within existing
2 decibel levels now occurring within the impact area.
3 '"All relevant evidence' * * * to the impact area that may impact a
4 ranching operation, and specifically the mining operation, was
5 identified and assessed for its potential impact. This analysis
6 determined and supports the conclusion that the [mine] will not impact
7 the Evans Well Ranch operations. In addition, the [mine] will not
8 create noise or disturbance over and above already existing conditions
9 on the cattle and the cattle operation.
10 "The Board finds that the Borine Report is sufficient evidence that no
11 significant impacts of the mine will reach the remaining pastures and that
12 there will not be an impact from the mine on either the ranch itself, or on any
13 of the related grazing allotments on the BLM land in the vicinity of the mine.
14 Despite [petitioners'} stating in their letter that the actual graze runs longer,
15 the Board finds the statement by Mr. Borine that the allotment currently is not
16 for that longer time period to be credible. Given that the mining operations
17 will occur during the months of November -February, the Board finds that
18 the timing of al/otted grazing on BLM land versus the mining operations,
19 significantly minimizes. ifnot eliminated, the impacts between the grazing and
20 the mining operations. Therefore, the original one-half mile impact area
21 chosen by the Board is sti II the appropriate impact area.
22 "As a result, the Board finds the testimony and report by Mr. Borine to be
23 more persuasive than [petitioners'] comments as to the potential impact to
24 cattle grazing in the area, and specifically the Flat Pasture Allotment. Based
25 upon the size of the Evans Well Ranch BLM grazing allotment, the location
26 of the grazing allotment, and the evidence from a similar mining site, the
27 Board concludes that the proposed mining would not result in a 'significant
28 potential conflict' with respect to the Evans Well Ranch grazing allotment and
29 the operation of the ranch." Record 19-20 (Emphasis added; footnote
30 omitted).
31 D. Assignments of Error
32 In their first assignment of error, petitioners challenge the county's decision not to
33 expand the impact area under OAR 660-023-0180(5)(a) beyond one-half mile.6 According
34 to petitioners, there is no substantial evidence in the record to support the county's decision
6 Although petitioners argue that the county's decision misconstrues applicable law, is not supported by
substantial evidence in the record, and that its findings are inadequate, the crux of their argument is a
substantial evidence challenge to the county's reliance on the Borine Report in light of conflicting evidence
presented by petitioners. We address those substantial evidence arguments.
Page 7
Exhibit R-1
7 of 12
and the "factual information" in the record demonstrates that there are "significant potential
2 conflicts" with petitioners' agricultural operations in the Flat Pasture beyond one-half mile
3 from the proposed mining area. 7
4 Petitioners first argue that the county's decision to limit the size of the "impact area"
5 under OAR 660-023-01 80(5)(a) is not supported by the Borine Report, because according to
6 petitioners, that report concluded that the "impact area" is the entire Flat Pasture and if the
7 county based its decision on the Borine Report, it should have designated the entire Flat
8 Pasture area as the "impact area" consistent with the Borine Report's conclusion. While the
9 Borine Report does use the phrase "impact area," we understand the report's use of that
10 phrase to refer to the area of analysis for purposes of determining whether there is "factual
11 information" indicating significant potential conflicts beyond the default 1,500 foot impact
12 area under OAR 660-023-0180(5), or beyond the one-half mile impact area chosen by the
13 county.
14 Petitioners next argue that a key assumption in the Borine Report and the county's
15 findings in reliance on the Borine Report is that there are no impacts from the mine because
16 cattle will graze on the Flat Pasture only during spring months, and not during the winter
17 months when the mine is in operation. According to petitioners, evidence in the record
18 regarding the BLM-allowed time period for grazing on the Flat Pasture confirms that grazing
19 occurs from November 1 to December 15, which is during the period when mining and
20 blasting are proposed.
7 Substantial evidence is evidence a reasonable person would rely on in reaching a decision. City 0/
Portlandv. Bureau 0/Labor and Ind., 298 Or 104, 119,690 P2d 475 (1984); Bay v. State Board o/Education,
233 Or 601, 605, 378 P2d 558 (1963); Carsey v. Deschutes County, 21 Or LUBA 118, ajJ'd 108 Or App 339,
815 P2d 233 (1991). In reviewing the evidence, however, we may not substitute our judgment for that oftbe
local decision maker. Rather, we must consider all the evidence in the record to which we are directed, and
determine whether, based on that evidence, the local decision maker's conclusion is supported by substantial
evidence. Younger v. City 0/Porlland, 305 Or 346,358-60, 752 P2d 262 (1988); 1000 Friends a/Oregon v.
Marion County, 116 Or App 584, 588, 842 P2d 441 (1992).
Page 8
Exhibit R-1
8 of 12
As noted above, mining will occur on the subject property from November through
2 February of each year. Based on the above-quoted findings, we understand the county to
3 have understood the Borine Report to presume or conclude that petitioners graze their cattle
4 in the Flat Pasture from late-March through early June, and that because mining will occur
5 between November and February, there will be no cattle grazing in the Flat Pasture area
6 during the months when mining is occurring and thus there will be no conflicts with
7 petitioners' ranching operation. However, the Borine Report does not explain the basis for
8 the apparent presumption that no grazing will occur when mining is occurring, and the pages
9 of the record cited to us are to the contrary.
10 During the proceedings on remand from Walker I, petitioners introduced evidence
1 j into the record that in 2008 the BLM-approved grazing schedule allowed petitioners to graze
)2 their cattle in the Flat Pasture only from November I to December 15. Petition for Review
l3 Appendix ER-8-10 (correspondence between BLM and petitioners stating that petitioners are
14 allowed to graze in the Flat Pasture from November 1 to December 15, 2008). During the
15 proceedings on remand from Walker II, petitioners testified orally and in writing that that
16 grazing schedule remained in effect, and that petitioners are allowed to graze their cattle on
17 the Flat Pasture from November I to December 15, 20 I O. Record 41 (letter from petitioners
18 so stating). That evidence is uncontroverted and is not addressed in either the Borine Report
19 or in the county's decision. s
20 The county's incorrect presumption that mining and grazing would not occur
21 simultaneously led the county to decide not to expand the impact area beyond one-half mile.
22 It also led the county to conclude that there would be no conflict with petitioners' ranching
23 operations within and beyond the one-half mile impact area. In their second assignment of
8 Although intervenor cites an email message from the author of the Borine Report which, according to
intervenor, rebuts petitioners' evidence and testimony, we do not find anything in that email message that
contradicts petitioners' testimony and evidence. Record 39.
Page 9
Exhibit R-1
9 of 12
5
10
15
20
25
error, petitioners argue that there is not substantial evidence in the record to support the
2 county's conclusion under OAR 660-023-0180(5)(b)(E) that the proposed mine will not
3 conflict with the Evans Well Ranch grazing operations within the Flat Pasture. Petitioners
4 point to evidence in the record that noise from the mine would conflict with cattle grazing on
the Flat Pasture and would force those cattle to overuse pasture areas farther away from the
6 mine, resulting in increased costs of operation. Petition for Review Appendix ER-7.
7 Because the county's conclusion that the mine will not conflict with petitioners' agricultural
8 operations is also based on their incorrect conclusion that grazing will not occur during the
9 time when the mine is operating, for the same reasons set forth above, we conclude that no
reasonable decision maker would rely on the Borine Report to reach that conclusion.
II Finally, in portions of their first and second assignments of error, petitioners also
12 argue that the county erred in failing to consider whether to expand the impact area to
13 include other pastures or BLM allotments other than the Flat Pasture that are adjacent to the
14 subject property. Intervenor responds that petitioners are precluded from arguing that other
pastures or BLM allotments other than the Flat Pasture should have been considered, because
16 that argument could have been made but was not made, in either Walker I or Walker II. We
17 agree. Beck v. City o/Tillamook, 313 Or 148, 831 P2d 678 (1992).
18 Further, petitioners argue that the county erred in failing to consider the mine's
19 potential impact on sage grouse in the area, which petitioners allege might lead BLM to
reduce petitioners' grazing rights to protect sage grouse and if so would conflict with
21 petitioners' agricultural operations. With respect to impacts on sage grouse, intervenor
22 argues that Walker I and Walker II addressed issues regarding sage grouse and argues that
23 petitioners may not raise those issues again in this appeal. However, Walker I and Walker II
24 addressed an argument under OAR 660-023-0180(5)(b)(D) that the impact area should be
expanded to include a sage grouse lek, or breeding site that is an identified Goal 5 resource
26 site in the county's comprehensive plan. See n 4. Walker I at 101-102; Walker II at 496-98.
Page 10
Exhibit R-1
10 of 12
As we understand petitioners' argument, it is an argument under OAR 660-023
2 0180(5)(b)(E) that noise and blasting from the mine will conflict with their agricultural
3 operations because that noise and blasting could cause sage grouse to abandon the area and
4 seek winter habitat on portions of petitioners' ranch, which might lead BLM to reduce
5 grazing rights in order to protect limited forage for sage grouse. We recognized that
6 argument in Walker II and in part sustained petitioners' assignment of error that set out that
7 argument.9 Petitioners' supposition that the proposed mining will cause sage grouse to leave
8 the mining area and flee to petitioners' grazing lands for winter habitat, as opposed to ending
9 up on some other land, and their related supposition that the BLM will then reduce
10 petitioners' grazing operation on Flat Pasture, relies on several levels of speculative
11 causation. However, as far as we can tell, the county did not address that argument on
12 remand. On remand, the county should consider, in determining whether the proposed mine
13 conflicts with petitioners' agricultural operations, effects of the proposed mine on sage
14 grouse that winter in the impact area and the possibility that such effects could lead to a
15 reduction in lands available for grazing for petitioners' cattle.
16 To summarize, remand is again necessary for (1) the county to expand the impact
17 area to include the Flat Pasture or to identify substantial evidence in the record that supports
18 its decision to limit the impact area to one-half mile from the proposed mine; and (2) to
19 evaluate any conflicts with petitioners' agricultural operations in the impact area that the
9 In Walker II, we summarized the argument as follows:
"According to petitioners, on remand the Nashes submitted additional testimony detailing
specific impacts of the proposed mine on their grazing operation, including impacts on a
nearby grazing allotment known as 'Flat Pasture' that has access to an important water source
that does not freeze in the winter. • •• The Nashes explained that BLM recently reduced
their use of Flat Pasture to provide additional winter habitat for sage grouse, and argues that
the impaCI of mine blasting on nearby sage grouse populations may cause BLM to further
reduce or eliminate grazing ofFlat Pasture." Walker II at 494.
Page II
Exhibit R-1
11 of 12
county designates, including whether the proposed mine would cause sage grouse to abandon
2 the area and seek winter habitat on petitioners' other allotments.
3 The first and second assignments of error are sustained, in part.
4 The county's decision is remanded.
Page 12
Exhibit R-1
12 of 12
REVIEWED
.~:::i:"'./~/~
LEGAL COUNSEL
Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBERS: PA-04-8. ZC-04-6
APPLICANT/OWNER: 4-R Equipment. LLC
PO Box 5006
Bend. OR 97708
AGENT: Robert S. Lovlien
Bryant Lovlien & Jarvis. P.C.
P.O. Box 880
Bend. OR 97709
REQUEST: A plan amendment and zone change for 365 acres from .
Exclusive Farm Use (EFU~HR) to Surface Mining (SM).
STAFF CONTACT: Paul Blikstad. Senior Planner
I. APPLICABLE CRITERIA:
A. Title 18 of the Deschutes County Code (DCC), the Deschutes County Zoning
Ordinance
B. Title 22 of the DCC, the Development Procedures Ordinance
C. Title 23 of the DCC, the Deschutes County Comprehensive Plan
D. OAR 660 Division 23, Procedures and Requirements for Complying with Goal 5
E. OAR 660-012-0060, Plan and Land Use Regulation Amendments
F. OAR 660-015, Statewide Planning Goals
II. FINDINGS OF FACT:
PROCEDURAL HISTORY: The procedural history for these applications was stated in
the Board of County Commissioners' (hereinafter Board) two prior decisions. The Land
Use Board of Appeals (LUBA) remanded the Board's most recent decision (dated October
1, 2008) on September 22. 2009 (Walker vs. Deschutes County and 4R Equipment. LLC,
LUBA No. 2008-189).
Page 1 of 6 -DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
PA-04-8, ZC-04-6 -DC Document No. 2010-570
DC
The applicant submitted a letter to the County Planning Division requesting that the
County start the remand proceedings; that letter was received by the County on June 17,
2010. The 9O-day period for a final decision required under DRS 215.435(1) is
September 15,2010.
The County set a public hearing for Monday, July 19, 2010 pursuant to the lUBA remand
order. The Planning Division mailed notice of the public hearing to all parties to the prior
proceedings. The hearing was held before the Board. The Board left the written record
open for all parties to July 23, 2010, and gave the applicant until July 28, 2010 for rebuttal.
Prior to the hearing letters were received from William Arras and Jeffrey Gray. At the
hearing letters were received from Frankie Watson and Tammie and Clay Walker (the
Walker letter was submitted into the record by Susan Gray). After the hearing, letters
were received from Minerva Soucie, and Keith and Janet Nash.
The Board of County Commissioners then announced its decision approving the plan
amendment and zone change on August 4, 2010. The Board hereby makes the following
findings of fact with respect to the assignments of error that were sustained by lUBA in
Walker vs. Deschutes County. et al.:
1. Evans Well Ranch.
In the 2008-189 case, lUBA concluded as follows:
.......... The County's failure to appreciate that there are Evans Well Ranch grazing
allotments in the vicinity other than the adjacent 4O-acre allotment, such as the Flat
Pasture area with its water source, means that the county's determination regarding the
size of the impact area is flawed. Remand is necessary for the county to consider all
relevant evidence regarding all Evans Well Ranch grazing allotments that are in the
vicinity and potentially affected by the proposed mining operation, and to determine the
size of the impact area based on whether ·factual information indicates significant
potential conflicts· with grazing on those allotments.»
Additionally, at the hearing, Petitioners speculated that if mining operatiOns impacted
sensitive grouse populations, the Bureau of land Management (BlM) could restrict
grazing on the ranchers' allotments in the area.
The Board concludes that there will be no significant potential conflict with the Evans Well
Ranch or its grazing allotments on the BlM property adjacent to the proposed mining site,
including the Flat Pasture grazing allotment west of the proposed mining site. The Board
finds that the written report and oral testimony submitted by Roger Borine, the applicant's
consultant, sufficiently demonstrates that the proposed mining operation, including
blasting, will not impact to any great extent the cattle grazing on the Flat Pasture
allotment,1 or that other impacts of the proposed mining would cause caWe on that
allotment to abandon the Flat Pasture and instead graze more heavily on privately owned
pastures on the ranch itself, outside the impact area.
The Borine agricultural report has the following conclusions on page 6 of the report:
1 The report by Roger Borlne indicates the Flat Pasture allotment is approximately 5,010 acres in
size (or 7.3 square miles).
Page 2 of 6 -DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
PA-04-8, ZC-04-6 -DC Document No. 2010-570
"The Flat Pasture is detennined to be the -impact area." It is the only pasture in the Horse
Ridge Allotment that shares a common boundary with the SWM (Spencer Wells Mine) and
Is approximately 5,010 acres or 7.3 square miles in size. The five remaining pastures are
over two air miles from the Spencer Well Mine.
The optimal period for grezing annual and perennial grasses by livestock near the
Spencer Well Mine is in late March, April, May and early June. Mining operations will
occur during the months of November-February. No ranching management practices in
the northeast portion of the impact area were identified to attract and evenly distribute
cattle and promote proper plant utilization. The occurrence of cattle near the Spencer
Well Mine while in operation would be highly unlikely and only incidental. Blasting and
crushing operations are well within existing decibel levels now occurring within the impact
area.
ItAII relevant evidence ....• to the impact area that may impact a ranching operation, and
specffically the mining operation, was identffied and assessed for its potential impact.
This analysis detenn/ned and supports the conclusion that the Spencer Well Mine will not
impact the Evans Well Ranch operations. It addition, the Spencer Well Mine will not
create noise or disturbance over and above already existing conditions on the cattle and
the cattle operation. "
The Board finds that the Borine report is sufficient evidence that no significant impacts of
the mine will reach the remaining pastures and that there will not be an impact from the
mine on either the ranch itself, or on any of the related grazing allotments on the BLM land
in the vicinity of the mine. Despite the Nashes stating in their letter that the actual graze
runs longer, the Board finds the statement by Mr. Borine that the allotment is currently not
for that longer time period to be credible. Given that the mining operations will occur
during the months of November-February, the Board finds that the timing of allotted
grazing on BLM land versus the mining operations, significantly minimizes, if not
eliminates, the impacts between the grazing and the mining operations. Therefore, the
original one-half mile impact area chosen by the Board is still the appropriate impact area.
As a result, the Board finds the testimony and report by Mr. Borine to be more persuasive
than the Nash's comments as to the potential impact to cattle grazing in the area, and
specifically on the Flat Pasture Allotment. Based upon the size of the Evans Wells
Ranch BlM grazing allotment, the location of the grazing allotment, and the evidence
from a similar mining site. the Board concludes that the proposed mining would not result
in a Msignificant potential conflict" with respect to the Evans Wells Ranch grazing allotment
and the operation of the ranch.
The Board also reiterates and incorporates by reference herein its findings in the prior
decisions on this same application. Those decisions include findings on conflicts between
mining operations and agricultural activities as follows:
"The Board concludes that the proposed use is separated from the BlM allotment
by the Spencer Wells Road. The Board concludes the proposed use will not force a
significant change in accepted farming practices in the area. The proposed use will not
significantly increase the cost of these accepted farm practices. The existing Spencer
Wells Road and the buffering would minimize any conflicts to these agricultural practices.·
Page 3 of 6 -DECISION OF THE DESCHUTES COUNlY BOARD OF COMMISSIONERS
PA-04-8, ZC-04-6 -DC Document No. 2010-570
The Board will require that the applicant coordinate the proposed blasting operations with
the Evans Well Ranch grazing allotments, specifically for grazing occurring within one-hatf
mile of the mining site. The purpose being to reduce any conflicts with cattle grazing on
the Flat Pasture area within on&-hatf mile of the mine.
The Board finds that the issues raised in the Arras, Watson, Gray. and Soucie letters have
been previously addressed in the Board's prior decisions, and need not be repeated here
because those issues were raised on appeal to LUBA by the Walkers and LUBA denied
those assignments of error, and those denials were not appealed. Those denied issues
cannot be addressed again in this decision.
IV. CONCLUSION: The Board hereby approves the plan amendment and zone
change in File No. PA-Q4..8 and ZC-04-6, subject to the following:
1. The Applicant must meet the general operation standards set forth DCC Section
18.52.110. See Exhibit ",.. to the application submittal.
2. The Applicant shall conduct the following mitigation:
a. "Blasting and crushing will cease during periods of severe winter weather
conditions that may force antelope with no aHemative winter range into the
area adjacent to the rock pit.
b. The applicant will allow the Oregon Department of Fish and Wildlife District
Biologist (ODFWDB) onsite to monitor severe winter conditions based on
snow depth. temperature, and numbers of antelope within 2 miles of the
rock pit.
c. Upon ODFWDB notification to the applicant when cessation of crushing
and blasting is deemed necessary by the ODFWDB due to antelope winter
range conditions, the application will cease blasting and crushing as
necessary within 24 hrs. of the ODFWDB notice
d. The applicant may choose to remove crushing eqUipment if
crushinglblasting cessation is necessary, and this removal will take up to
two weeks from the date of notice of cessation."
3. Any fencing of the project must be wildlife friendly fencing that would allow an
antelope to pass under the fence with as little risk as possible and must be
approved by ODF&W.
a. The fencing shall be a three wire smooth wire fence or better with at least
18 inches from the ground to the bottom wire.
b. There would be a maximum of 42 inches from the ground to the top wire.
4. The reclamation plan will include replanting with native grasses and shrubs.
a. Each year, the Applicant must treat any noxious weeds that might invade
the site work.
b. The Applicant must work with the Deschutes County Weed Board and
adhere to the Weed Board's requirements for eradication of noxious
weeds.
5. A 600-foot setback shall be maintained along U.S. Highway 20, the entire length of
the project.
a. All mining activities shall be set back 200-fool from Deschutes County
Road No. 23.
Page 4 of 6 -DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
PA-04-8, ZC-04-6 -DC Document No. 2010-570
b. A natural area and buffer of between 100 foot and 250 feet shall be
maintained along the south and east sides of the property.
6. All access roads into the property shall be asphalt, and all internal roads shall be
paved up to the mining site.
7. Any structures on the property shall be limited to a truck scale, scale control
building and well head building.
8. Prior to any mining activities, the applicant shall acquire a water right to provide a
pond and water storage, with a pump, to provide for dust control during the
excavation and processing of materials on-site, and the water shall be used to
provide dust control during the excavation and processing of materials.
9. Beginning with the second stage of mining. the on-site crushing shall occur below
grade.
10. Any berms to be located on the property shall:
a. not exceed 15 feet in height,
b. shall be used to store material for future reclamation, and
c. shall be sprinkled with water to reduce dust.
11. Any utility lines on the property shall be underground utility lines.
12. No mining or excavation shan occur within the designated flood plain unless
otherwise approved through a conditional use permit process.
13. The property will be reclaimed in its natural state in accordance with an operating
and reclamation plan to be approved by DOGAMI. See Exhibit -H-to the
application submittal, incorporated by reference herein.
14. Applicant shall comply with the regulations adopted by the Office of Surface
Mining, U.S. Department of Interior, in order to determine the allowable particle
velocity per foot for a residence.
a. In addition, the Applicant's first shots will be kept small and monitored with
a seismic device that reads particle velocity per foot.
b. The Applicant will place the monitoring device off of the 4-R property line
adjacent to U.S. Highway 20.
c. Once Applicant has the seismic information on the initial blast. Applicant
can adjust the blasts accordingly to insure that Applicant stays within these
standards.
15. All lighting on the property shall conform to the lighting codes of the County and
such lighting must be contained on the property.
16. Applicant shall restrict the access to the property to one road.
17. Based upon the Technical Memorandum prepared by William C.B. Gates, Ph.D .•
P,E .• C.E.G. of KJeinfelderWest.lnc. dated January 4, 2008, the Applicant shall
install monitOring points at key areas around the mine site be required to monitor
vibrations during blasting operations to insure that ground vibrations are within the
safe limits established by the Office of Surface Mining; and,
Page 5 of 6 -DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
PA-04-8, ZC-04-6 -DC Document No. 2010-570
18. Based upon the anemometer data collected by Kleinfelder, blasting will occur
when the prevailing wind is blowing away from the Walker residence.
19. Based upon the discussions that some religious or cultural activities might have
occurred in the past on the Walker residence, and based upon the Applicant's
willingness to restrict certain activities on its property during any such religious or
cultural activities, the Applicant shall restrict its blasting activities, upon prior
written notification, of any cultural or religious activities that will occur on the
Walker property. Any such restriction, however, shall not exceed three (3) days in
duration.
20. The applicant shall coordinate blasting activities with the owner of the Evans Well
Ranch, so that the grazing of cattle does not take place within one-half mile of the
surface mining zone during blasting operations.
/1" .-:..Dated this / <.t} of )s..?f...4t,t... ,2010 BOARD OF COUNTY COMMISSIONERS
I / 7'
.., ".' ~ /'~;L~Kr]i;;····
DATED this
." (' ,-"
ALAN UNGER, VICE CHAIR
/···········\·~/l:.. '.' ;
, .......···-\;1 <::7\""-'V>"-··t
Recording Secretary TAMMY BANEY, COMMISSIONER
Page 6 of 6 -DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
PA-D4-8. ZC-04-6-DC Document No. 2010-570