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HomeMy WebLinkAbout4-R Equipment - Final Argument, () RECEIVED n J iY: rttM.( t3\'h~____ _ 's! 1 DEC 1 20"!.~ BEFORE THE DESCHUTES COUNTY HEARINGS OFFICER DELIVERED BY: f>L.J PC-File N~-·--'··-PA-04-8 I ZC-04-8 ) ) FINAL ARGUMENT (LUBA No.: 2010-082) ) ON REMAND ) APPLICANTI PROPERTY OWNER: 4-R Equipment, LLC c/o 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/LMlWA) 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: 8. Pages 24 & 25 of the Allotment Management Plan with Supplement to the Allotment Management Plan. II. PURPOSE: This Final Argument on Remand addresses questions and issues raised in submittals following the November 12,2014 public hearing. III. SCOPE OF REMAND: Given the nature of some of the comments submitted, Applicant must once again describe the scope of the remand. DCC 22.34.040 holds that the proceedings on remand are limited to those issues that the remanding authority has required the County to address. If the Board elects to accept new evidence to address the remanded issues, parties may raise new, unresolved issues, but only as those new issues relate to the new evidence offered to address the issues on remand. Issues that were resolved by LUBA or not appealed from a prior decision are deemed waived. As the Board has accepted additional testimony, the Board can only review new issues as they relate to evidence offered to address the two issues on remand: (1) whether the 1,500 foot radius analysis area should be expanded to include the entire Flat Pasture because of potential conflicts with agriculture beyond the 1,500 foot radius, and (2) whether there are conflicts with Page 1 of 6 -FINAL ARGUMENT ON REMAND {0682909 1-00502 713 ;21 agriculture in the form of BLM grazing rights being curtailed as a result of migration of sage grouse to areas where cattle graze. Accordingly, the Board cannot re-examine the entirety of the application or investigate ancillary matters as some of the commentary has requested. IV. ODFW LETTER: The ODFW letter addresses the general application, not the remand questions, and does not appear to analyze the conditions of approval already placed on this proposal. As identified above, both of the remand questions are focused on the impacts to agriculture. There is no reference to agriculture in the ODFW letter except remarks pertaining to conversion of sagebrush to agriculture, which is not part of Applicant's proposal. To the extent that the letter addresses the second remand question, the letter only indicates that mitigation measures may be necessary for noise impacts and impacts to winter range habitat. There are already several conditions of approval regarding noise. While the letter indicates that the Subject Property contains winter range habitat and is located within 3 miles of a lek, there is no evidence or even an assertion that sage grouse are actually present on or near the Subject Property. As identified in prior submissions, Applicant's biologist reported that there were no signs of sage grouse activity on the Subject Property. Based on this prior evidence the County determined that the most proximate lek would not be impacted by the proposal. LUBA affirmed the County's decision on that issue. Moreover, there is no assertion or any specific evidence that the proposal will cause sage grouse to flee the area and that the resulting migration will necessarily be to the Flat Pasture, and that such a migration will cause the BLM to curtail grazing rights. The ODFW lists several recommendations that it proposed to Deschutes County as part of its Comprehensive Plan update. These recommendations are not applicable approval criteria because they have not been adopted by the County and, in any event, were not in place at the time of application. In any event, Applicant seems to fit most of the recommendations as there are no paved roads proposed within one mile of the lek, no dirt roads proposed within one-half mile of the lek, and no structures or transmission lines proposed at all. As indicated in the letter, ODFW will provide more commentary on applications for physical development and the Applicant will actively work with ODFW to resolve their concerns with those applications. V. WALKER LETTER: The Walker letter raises several issues and makes several assertions that are addressed in sequence below: a. The Remand Issues Were not Addressed Page 2 of 6 -FINAL ARGUMENT ON REMAND (06829091-O0502713;2) The remand issues are set out above. Applicant addressed the specific remand questions as follows: Steven Roth, the current holder of the Flat Pasture and the most proximate agricultural operator to the mine, submitted a letter and testified orally that he did not see conflicts between the mine and his agricultural operation. Mr. Roth's testimony directly addresses the first remand question because he states that there are no conflicts with agricultural operations and that he did not see any conflicts with his use of the Flat Pasture. If there are no conflicts at closer distances, there are no conflicts at further distances necessitating an expansion of the analysis area. Mr. Borine provided additional analysis of effects on agricultural operations, and in particular noise from mining operations at 1,500 feet. He concluded that there are no potential conflicts justifying a larger analysis area because noise from blasting reaches near ambient noise levels at 1,500 feet. While the Nashes and others provide conflicting evidence regarding conflicts with agriculture, evidence from the current operator of the Flat Pasture is the most pertinent and the Board may chose between conflicting evidence. The second remand question was addressed by applicant's prior biological study, the only evidence submitted or cited pertaining to sage grouse that is site specific. The study indicated that there were no signs of sage grouse on the subject property and thus no indication that they would be close enough to flee as a result of mining operations. Furthermore, Mr. Borine commented that even if sage grouse are sufficiently close to the proposed mine to flee, and they were to flee to the Flat Pasture, sage grouse would most likely flee to an area of the Flat Pasture that is not heavily used by cattle on account of the limited season, the limited number of actively grazing cattle relative to the pasture size, and the management practices of grazing activities on the Flat Pasture. Finally, Mr. Roth testified that he was not concerned that the BLM would curtail his grazing right on the Flat Pasture because sage grouse are already present on portions of his grazing area and he has been able to continue to operate. The counter evidence is non-existent. No party has offered any evidence that the sage grouse would flee on account of mining activities, let alone that sage grouse would flee to the Flat Pasture amongst the thousands of other acres in the vicinity. Furthermore, the BLM did not indicate that the mine would cause it to curtail grazing rights as a result of sage grouse migration. All the BLM indicated was that it would have to consider the mine as part of any future analysis on sage grouse and/or grazing. Asserting that the BLM "will" restrict grazing, whether following the opening of the mine or at some point in the future, is pure speCUlation. The two remand issues were thoroughly addressed and the evidence demonstrates that the Applicant has met its burden. b. Two Flat Pastures There are, in fact, two Flat Pastures identified in the attached Exhibit 8. One is located in the Horse Ridge Allotment and one is located within the Millican allotment. The Flat Pasture at issue is the Flat Pasture in the Horse Ridge Allotment. That is the Flat Pasture that the Nashes Page 3 of 6 -FINAL ARGUMENT ON REMAND 106829091-00502113;21 used to graze and the one in which Mr. Roth now holds the grazing rights. It appears the BLM erroneously referred to the grazing season on the Flat Pasture in the Millican allotment (7/1 to 10/31) when it referred to the grazing season on the Horse Ridge Flat Pasture in its undated letter submitted in advance of the November 1 t h public hearing. As is evidenced by the Nashes' prior submissions, the Walker's letter, and Mr. Roth's testimony, there is consensus that the grazing season on the Horse Ridge Flat Pasture runs from November 1 to December IS. The relatively recent change to this grazing season was a voluntary reduction by the Nashes to allow for sequential movements of cattle from pasture to pasture. It was not induced by sage grouse concerns. c. Impacts on Leks Impacts on Leks were addressed in prior Board decisions and affirmed by LUBA. This issue is not part of the remand. d. Dry River Canyon Impacts to the Dry River Canyon were resolved in the 2007 LUBA opinion where LUBA denied the petitioner's assignment of error on that issue. Moreover, the Dry River Canyon is not at all applicable to the remand questions. e. Noise Levels The applicant commissioned a site specific analysis of noise levels, which revealed that sounds from blasting reach near ambient levels at 1,500 feet. Even if cold weather events amplified or extended the travel distance of sound, Mr. Roth has testified that loud noises do not conflict with agricultural practices, even at more proximate distances. Thus even in cold weather events, noise levels would not present a conflict with agriculture at 1,500 feet that would warrant an expansion of the analysis area. Moreover, the County has already imposed conditions of approval that limit blasting during particular cold weather events, requires coordination of blasting activities, and requires ongoing monitoring of noise levels. f Cumulative Effects Analysis "Cumulative Effects Analysis" is a legally created form of analysis that is part of the National Environmental Policy Act for determining how proposed federal actions impact the environment. As it only applies to federal actions, it is not applicable approval criteria and not at all applicable to the remand questions. In any event, state and local land use law require somewhat comparable analyses in the form of the ESEE analysis and the conflicts analysis for proposed surface mines amongst other applicable approval criteria which evaluate the grand sum of the impacts from a particular land use proposal. Page 4 of 6 FINAL ARGUMENT ON REMAND {0682909I-00502713;2} VI. CENTRAL OREGON LANDWATCH SUBMISSIONS: Central Oregon Land Watch ("COWL") submitted two documents. The first was submitted in person at the public hearing by Paul Dewey. The second was submitted by Gail Snyder following the hearing. In addition, Paul Dewey provided oral testimony at the hearing. In the Dewey submission, COWL argues that the Board must make its decision on the most recent habitat data available. The most recent data to which COWL refers is a BLM study that is presently in a preliminary stage and does not have a known release date. It may be years before the BLM releases its study and the Applicant is entitled to a decision on the remand questions within the timeframe established by state statute. Moreover, Applicant has already submitted the best data available because it commissioned the only site specific sage grouse analysis created to date. While it is a few years old, it is still the most pertinent evidence regarding the proposed mine and sage grouse. Moreover, it is disingenuous for COWL to argue on the one hand that sage grouse populations are declining and then criticize the Applicant's study as outdated. If sage grouse are truly in decline, and there were no sage grouse on the subject property, what would an updated study reveal besides that sage grouse are not in the vicinity of the Subject Property? The Dewey submission also argues that the Borine submissions do not constitute adequate evidence of the effects on agricultural operations and sage grouse. Mr. Borine is a professional consultant on agricultural operations. He can detennine how much forage grows in a particular area, how much would be consumed by cattle under particular management techniques (and thus how much is left for sage grouse), and how management techniques affect the location and needs of grazing cattle. Even if the Borine submissions were not enough, the testimony of Mr. Roth, corroborates that both direct (noise and other mining externalities) and indirect (sage grouse) impacts do not present any conflicts with agricultural operations. COWL has not pointed to anyone in a better position to make these detenninations on agricultural conflicts or presented any evidence that discredits the testimony of Mr. Roth and Mr. Borine. As the remand questions concern conflicts with agriculture, Applicant has presented substantial evidence to satisfy its burden on remand. Finally, the Dewey submission also indicated that a "cumulative effects" analysis should be perfonned and that leks in the area should be included in the analysis area. As identified above, the "cumulative effects" analysis is a legally created fonn of analysis only applicable to federal projects. The lek issue was already decided by LUBA. The Snyder submission is a meta-analysis (summary/analysis of other studies) produced by the BLM. The purpose of the report is to develop some general guidelines on buffers from leks. It is not site-specific, mine-specific, or even Oregon specific. Presumably, it is being submitted to demonstrate that mining activities should be restricted within certain buffer distances. However, the study actually demonstrates that sage grouse tend to abandon areas near highways. Given the proximity of Highway 20 to the subject property, the study is actually further evidence that there are no sage grouse in the area that would flee as a result of mining activities thereby impacting adjoining grazing rights. Page 5 of6 -FINAL ARGUMENT ON REMAND {06829091-O0502713;2} VII. CONCLUSION: Applicant satisfies all of the criteria applicable to the requested approval. Submitted this 1 st day of December, 2014 BRYANT, LOVLIEN & JARVIS, P.c. Sharon R. Smith OSB #862920 Garrett Chrostek aSB # 122965 Of Attorneys for Applicant Page 6 of 6 -FINAL ARGUMENT ON REMAND (06829091·00502713 ;2) 24 XABLS 11: SEASONS OF USE BY ~AND PAS'rURB Allotment Barlow cave Mayfield Pond Horse Ridge Moff.i.t Mil.l.ican Powell Butte Wil.liuacon Ck Northeast Northwest South Buller North South Flat Stookey Horse Ridge Golden Basin Evans Well Spencer South Kotzman North Kotzman Pine Ridge Pine Fla.t Dead Wilma 2,000 North Fenced Fed. Bomb.i.ng Range Plat Jordan Seed.i.ng Low Desert Killican Pine Kountain South Smith Spray Butte East North South West Crestea Borse Butte Juniper Acres Sheep Camp West ,Butte Season of Use (Planned Use Periods) 5/1 to 10/31 (7/1 to 9/15; 9/15 to 10/31)* 5/1 to 9/15; (5/1 to 6/301 7/1 to 9/15)* 5/1 to 9/151 (5/1 to 6/30; 7/1 to 9/15)· 11/15 to 4/15 (11/15 to 1/31; 2/1 to 4/15)· 11/15 to 4/15 (11/15 to 1/31; 2/1 to 4/15)* 11/15 to 4/15 (11/15 to 1/31; 2/1 to 4/15)* 5/1 to 9/15 (5/1 to 6/30; 7/1 to 9/15)· 1/1 to 12/31· 7/1 to 2/2B (1/1-9/15; 9/16-10/31; 11/1-2/28)* 7/1 to 2/28 (7/1-9/15; 9/16-10/31; 11/1-2/28)* 7/1 to 2/28 (7/1-9/15; 9/16-10/31; 11/1-2/28)* 5/1 to 10/31 (5/1-6/30; 7/1-8-31; 9/1-10-31)* 5/1 to 8/31 (5/1 to 6/30; 7/1 to 8/31)* 5/1 to 10/31. (5/1-6/30, 7/1-8-31; 9/1-10-31) * 7/1 to 10/31 (7/1 to 8/31; 9/1 to 10/31)* Hone 7/1 to' 2/28 (7/1-9/15; 9/16-10/31; 11/1-2/28)* 7/1 to 2/28 (7/1-9/15; 9/16-10/31; 11/1-2/28)* 1/1 to 12/31­ 3/1 to 10/31 (3/1 to 4/30)** 7/1 to 10/31 (7/1 to 9/15; 9/16 to 10/31)* 3/1 to 10/31 (3/1 to 4/30)** 3/1 to 10/31 (3/1 to 4/30)** 1/1 to 12/31* 5/1 to 5/31 1/1 to 12/31* 3/1 to 10/31 (3/1 to 4/30)·· 1/1 to 12/31* 7/1 to 10/31 (7/1 to 9/15; 9/16 to 10/31)* 11/15 to 4/30 (11/15 to 1/31; 2/1 to 4/15)* 3/15 to 5/15 11/15 to 4/30 (11/15 to 1/31; 2/1 to 4/15)* 11/15 to 4/30 (11/15 to 1/31; 2/1 to 4/15)* 1/1 to 12/31 (Prefer use before Kay 1)** 1/1 to 12/31 (Prefer use before Kay 1)** 1/1 to 12/31 (Prefer use before Kay 1)** 1/1 to 12/31 (Prefer' use before Kay 1)** 1/1 to 12/31 (Prefer use before Kay 1)** * Alternate season of use each year ** Consider ~eed for early spring precondition of forage for deer and antelope Non-renewable use of additional forage, for a period of five years, will be authorized as shown in Table 12, page 25, in a manner aetermined by resource objectives and procedures aescribed in this plan. Flexibility in use of the forage is defined in a later section. In 1997, an evaluation of the successfulness of the changed management in attaining resource objectives will be completed, this AMP will be amended and an allocation of preference will be made. Exhibit R-8 Page 1 of 3 TABLE 12, TEMPORARILY AVAILABLE FORAGE AND TOTAL ANiMAL UNIT KONTHS (AUMS) BY ALLOTMENT IN COMPARISON TO ACTIVE PREFERENCE, PEAK USE, AND EVALUATION PROpoSED ALLOCATION Active Average Peak Evaluation ~le ~ Allotment Preferenge Actual Use Ose proposed AUMs Use rAMP) ru!li!! Barlow Cave 600 372 1,676 735 150 7S0 Mayfield Pond 305 300 894 342* 445 750 Horae Ridge 1,624 4,343 9,190 4,9S8 176 1,800 Moffit 2,334 2,881 6,798 4,090 452 2,786 Millican 2,890 2,906 4,467 3,900* 1,010 3,900 Powell Butte 700 736 l,325 700* 540 1,220 Williamson Creek lLQQl .L..Q.!§. L.1.2.i 1,255* 943 1, 9S0 9,460 12,584 26,149 1S,980 3,716 13,156 *These evaluations were completed and approved, although proposed management may differ from the management setting evaluated. See also the Existing EValuations section, page 19. Rationale for Author1:ation of Non-renewahle U•• bf Allotaant: In Mayfield Pond, Pcwall Butte, and Williamson creek livestock use will be shi.fted from low numbers of livestock for long periods to higher numbers for much shorter periods. These three allotment were planned together in an intensive manaqament system (frequent moves) geared to work towarda seedling establiahment and improvements in ecolog1cal cond1tion, w1th consideration to other objectives (bitterbrush needs, etc.). While available data and target ut1l1zations indicate S,lS2 AUKs are ava1lable, fewer AUKs (3920) will be authorized to provide flexibility and allow for data uncertainties. Only Williamson Creek will be grazed at estimated capacity until further data is available. Use levels will be reduced from the average actual use levels in Horse Ridge and Moffit allotments to provide for increased residual grass cover. In every case, uti11zat10n targets are tied directly to pasture level objectives developed through the CRMP process (See Table 2, page 6 and Table 3, page 8). The use level in Killican allotment is based on the 1989 evaluation. The grazing program, as a whole, is designed to meet RHP objectives and is practical for the permittee to implement. Five years under the AMP will provide stability, adequate data on responses to managEm1ent changes, and progress toward meeting resource objectives. Annual temporary use authori:ation specifically meets the following decision from the RMP: -Initial increases to livestock above base preference will be through non­ renewable use permits pending confirmation by monitoring studies." Gras.i.ng Schedules: The grazing schedule and strategy will vary each year to respond to plant and wildlife needs related to accomplishment of the resource objectives identified. Initially, the Leslie Ranch CRKP has been set up to use three different herds of cattle. While the use periods in individual pastures will vary within the season of use established, the seasons of use are expected to remain constant. The emphasis of the interdiciplinay/interagency planning team each year will be to ensure the resource objectives are being met. A narrative summary of year one livestock management is found in Appendix 0, page 49. Exhibit R-8 Page 2 of3 .J llotment pasture tJaA:> tU e p~OOS .arlow Cave Northea~~._ '-~/1-711':>-tJNJ o,j,tp-I.ho ~ Northwest -"'/I-II~O -l,g~. " ::::::-~ ~/t-7/'~~b~· ~ layfield l1'ond :~~: S""~\ ~~ [oree Ridge Flat Stookey 'I.-11/'31 Horse Ridge Golden Basin '11""2/~' Evans Well Spencer loffit South Kotzman North Xotzman Pine Ridge Pine Plat Dead Wi.lma 2,000' North, Fenced Ped. Bombing Range Flat Jordan Seeding Low Desert Millican yI, ,J. Pine Mountain /~(Y=s/J-~/~,)N};:W; 5j ,"/1,31 South C" / : Smith Spray Butte (01-/) ::: 7/' -Iv/~I) AlE'l<'I:''/t "10/11 ~owell Butte East (otA)1P,; ,./ I 'f-1.{/'5o) AI£:jJlAJ :: 1I,tIS--"~. North (01-0': 3115-S;'~) Ne=W~~/S'-~ South West lilliamsoD. Ck Crested Horse Butte Juniper Acres Exhibit R-8 Sheep camp ., ~~e.30f3.'.I ... l.· D....... ." ... ... .... .' .:" . -~.......... ( :.